Laura Dugger v. Department of Veterans Affairs

FUNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAURA C. DUGGER, DOCKET NUMBER
Appellant, CH-0752-17-0129-I-1
v.
DEPARTMENT OF VETERANS DATE: March 27, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Laura C. Dugger, Fishers, Indiana, pro se.
Lisa M. Clark, Esquire and Stacey Letner, Esquire, Akron, Ohio, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude tha t the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant retired from the GS-13 Lead Human Resources Specialist
position effective December 1, 2016, three days before the agency’s decision to
remove her based on charges of misconduct was to become effective. Initial
Appeal File (IAF), Tab 1 at 6, 8. The appellant filed a Board appeal alleging that
she was forced to retire because she did not want the removal on her record. Id.
at 6. The administrative judge issued an initial decision that dismissed the appeal
because, after she filed her appeal, the appellant failed to provide any of the
required submissions to proceed with it. IAF, Tab 20, Initial Decision (ID) at 2.
¶3 The appellant has petitioned for review, alleging that she complied with all
“Orders” to the best of her ability and claiming that she has “FEDEX” receipts to
show such. Petition for Review (PFR) File, Tab 1 at 3. She also states that she
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sent the Board a copy of a request for discovery, but the Board returned it. 3 Id.
at 3-4. The agency has responded in opposition to the petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The sanction of a dismissal with prejudice is a severe sanction, and the
Board has held that it is only appropriate when necessary to serve the ends of
justice and should only be imposed when (1) a party has failed to exercise due
diligence in complying with Board orders; or (2) a party has exhibited negligence
or bad faith in its efforts to comply. Williams v. U.S. Postal Service,
116 M.S.P.R. 377, ¶ 7 (2011) (citing Chandler v. Department of the Navy,
87 M.S.P.R. 369, ¶ 6 (2000)). Absent an abuse of discretion, the Board will not
reverse an administrative judge’s determination regarding sanctions. Davis v.
Department of Commerce, 120 M.S.P.R. 34, ¶ 18 (2013); see 5 C.F.R.
§ 1201.43(b).
¶5 We find that the administrative judge did not abuse her discretion in
imposing the sanction of dismissal with prejudice. The record reflects that,
contrary to the appellant’s assertion in her petition for review, she failed to
provide any of the required submissions in this case. For example, she failed to
respond to the administrative judge’s first or second jurisdictional orders, IAF,
Tab 3, 17, or to either of the administrative judge’s two affirmative defense
orders, IAF, Tabs 4, 16. Additionally, the appellant failed to appear for the
scheduled prehearing conference. IAF, Tab 9 at 4, Tab 19; ID at 3. The
appellant’s statement on review that she complied with the administrative judge’s
3
In her petition for review, the appellant notes that the initial decision states that she
alleges that “the Board” coerced her retirement and clarifies that she is alleging that the
agency coerced her retirement. PFR File, Tab 1 at 4. As the appellant asserts, in one
sentence, the initial decision states that the appellant “alleges the Board coerced her
retirement.” ID at 1. However, the initial decision in its entirety makes clear that the
appellant is alleging that the agency coerced her retirement. The statement that “the
Board” coerced the appellant’s retirement is a typographical error.
4
orders to the best of her ability and that she has receipts to show that she made
submissions below is wholly unsupported. In her petition for review, she
references Federal Express receipts. PFR File, Tab 1 at 3. However, she has not
submitted copies of those receipts with her petition for review.
¶6 In addition, the appellant’s submission regarding discovery was properly
returned and is not part of the record. IAF, Tab 18. The administrative judge’s
acknowledgment order provided basic discovery instructions to the appellant and
referred her to the applicable regulations. IAF, Tab 2 at 3 (citing 5 C.F.R.
§§ 1201.71–1201.85). Those basic instructions and the corresponding regulations
both reflect an expectation that the parties would start and complete discovery
with minimum Board intervention. IAF, Tab 2 at 3; see King v. Department of
the Navy, 98 M.S.P.R. 547, ¶ 10 (2005) (recognizing that a party does not need
the Board’s approval to engage in discovery, and the Board generally only
becomes involved in discovery matters if a party files a motion to compel), aff’d,
167 F. App’x 191 (Fed. Cir. 2006); 5 C.F.R. § 1201.71. Further, after her
submission regarding discovery was returned, the administrative judge issued the
appellant a Memorandum and Order to Show Cause, which clearly informed the
appellant that failure to respond could result in her appeal being dismissed with
prejudice, and the appellant did not respond. IAF, Tab 19.
¶7 Based on the foregoing circumstances, we agree with the administrat ive
judge’s finding that the appellant failed to exercise due diligence in prosecuting
her appeal, and we affirm the dismissal with prejudice 4 for failure to prosecute.
See, e.g., Williams, 116 M.S.P.R. 377, ¶¶ 2-4, 9-12 (affirming the administrative
4
The initial decision “dismissed” the appeal. ID at 1, 3. The initial decision does not
state that the appeal is dismissed with prejudice. However, the Memorandum an d Order
to Show Cause issued by the administrative judge informed the appellant that her appeal
might be dismissed with prejudice. Thus, we find that the administrative judge’s intent
was to dismiss the appeal with prejudice. Nonetheless, in this F inal Order we make
clear that the appeal is dismissed with prejudice.
5
judge’s decision to dismiss an appeal for failure to prosecute because the
appellant failed to respond to multiple Board orders); Heckman v. Department of
the Interior, 106 M.S.P.R. 210, ¶ 16 (2007) (finding that the administrative judge
did not abuse her discretion by dismissing the appellant’s claims for failure to
prosecute when the appellant did not comply with multiple orders over a period of
nearly 2½ months).
NOTICE OF APPEAL RIGHTS 5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
5
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
7
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
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(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.