Nicole S. Wilson v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NICOLE S. WILSON, DOCKET NUMBER
Appellant, CH-0845-16-0149-I-1
v.
OFFICE OF PERSONNEL DATE: September 29, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Nicole S. Wilson, Danville, Illinois, pro se.
Karla W. Yeakle, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her retirement annuity appeal for failure to prosecute. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 that 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 On December 10, 2015, the appellant filed a Board appeal challenging the
reconsideration decision by the Office of Personnel Management (OPM) that
found that she received an overpayment in retirement annuity benefits under the
Federal Employees’ Retirement System and informed her of OPM’s intent to
collect the overpayment by deducting monthly installments from her annuity.
Initial Appeal File (IAF), Tab 1 at 9. In her initial appeal filing, the appellant
requested a hearing. Id. at 1.
¶3 On February 17, 2016, the administrative judge ordered the parties to file
prehearing submissions on or before March 8, 2016, and scheduled a telephonic
prehearing conference for March 15, 2016. IAF, Tab 7 at 1-2. The administrative
judge also advised the appellant that failure to respond to the order or failure to
appear for the prehearing conference could result in her appeal being dismissed
for failure to prosecute. Id. at 1. The appellant did not submit any prehearing
submissions, nor did she appear for the prehearing conference. IAF, Tab 8.
¶4 On March 15, 2016, the administrative judge issued another order to
reschedule the prehearing conference and noted the appellant’s failure to follow
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the previous order. Id. The administrative judge again warned the appellant that
her failure to appear for the rescheduled prehearing conference would result in
her appeal being dismissed for failure to prosecute. Id. The appellant failed to
appear for the rescheduled prehearing conference. IAF, Tab 9.
¶5 On March 21, 2016, the administrative judge issued a Summary of
Telephonic Status Conference noting the appellant’s repeated failures to follow
Board orders, despite several warnings regarding the sanction of dismissal of her
appeal for failure to prosecute. Id. The administrative judge afforded the
appellant 1 week to show cause why her appeal should not be dismissed for
failure to prosecute and informed her that, absent a showing of good cause, she
would dismiss the appeal for failure to prosecute on March 28, 2016, without
further notice. Id. The appellant again failed to respond.
¶6 On April 13, 2016, the administrative judge dismissed the appeal for failure
to prosecute, finding that dismissal was appropriate because the appellant failed
to respond to two Board orders and a final order to show cause. IAF, Tab 10,
Initial Decision.
¶7 On May 12, 2016, the appellant filed a petition for review. Petition for
Review (PFR) File, Tab 1. The agency has filed an opposition to the appellant’s
petition. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 The sanction of dismissal with prejudice may be imposed if a party fails to
prosecute or defend an appeal. Leseman v. Department of the
Army, 122 M.S.P.R. 139, ¶ 6 (2015); 5 C.F.R. § 1201.43(b). Such a sanction
should be imposed only when a party has failed to exercise basic due diligence in
complying with Board orders or when a party has exhibited negligence or bad
faith in its efforts to comply. Leseman, 122 M.S.P.R. 139, ¶ 6. Repeated failure
to respond to multiple Board orders can reflect a failure to exercise basic due
diligence. Williams v. U.S. Postal Service, 116 M.S.P.R. 377, ¶ 9 (2011). Absent
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an abuse of discretion, the Board will not reverse an administrative judge’s
determination regarding sanctions. Leseman, 122 M.S.P.R. 139, ¶ 6.
¶9 Here, the appellant failed to appear for two scheduled conferences, failed to
file prehearing submissions as ordered by the administrative judge, and did not
file a response when the administrative judge informed the appellant that her
appeal would be dismissed for failure to prosecute absent a showing of good
cause. IAF, Tabs 8-10. The Board has upheld dismissals for failure to prosecute
in similar situations. See, e.g., Leseman, 122 M.S.P.R. 139, ¶¶ 3-4, 7 (upholding
a dismissal for failure to prosecute after the appellant failed to appear at two
conferences, failed to submit prehearing submissions, and failed to respond to an
order to show cause). Despite three separate warnings that a failure to abide by
the Board’s orders would result in a dismissal for failure to prosecute, the only
contact the appellant made with the Board after her initial appeal filing was the
filing of the petition for review.
¶10 Moreover, the appellant’s brief argument on review is limited to the merits
of her retirement annuity appeal and is not determinative of the propriety of the
dismissal for failure to prosecute. PFR File, Tab 1; see Bennett v. Department of
the Navy, 1 M.S.P.R. 683, 688 (1980) (concluding that an appellant’s argument
regarding the merits of the underlying agency action was not determinative of the
propriety of a dismissal for failure to prosecute). Finally, the appellant has not
argued, and the record does not show, that the administrative judge abused her
discretion in dismissing the appeal with prejudice for failure to prosecute.
¶11 Based on the foregoing, we agree with the administrative judge’s finding
that dismissal was an appropriate sanction, and we further find that the appellant
failed to exercise basic due diligence in prosecuting her appeal. Accordingly, we
affirm the initial decision’s dismissal with prejudice for failure to prosecute.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information 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, 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
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Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.