UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

WILLIAM ERIC BAKER,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DC-0432-14-0759-I-1

DATE: April 2, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Gerald L. Gilliard, Esquire, Washington, D.C., for the appellant.

Hansel Cordeiro, Esquire, 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 his removal 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the 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. See 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, and based on the following 

points and authorities, 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 The appellant filed a Board appeal challenging his removal from his 

position as a Program Analyst for unacceptable performance. Initial Appeal File 

(IAF), Tab 1. The appellant also raised an affirmative defense of reprisal for

prior equal employment opportunity activity. See id. at 7. 

¶3 The administrative judge issued an acknowledgement order followed by a 

hearing order which set the deadline for the parties’ prehearing submissions as

August 4, 2014, the date for the prehearing conference as August 6, 2014, and the 

hearing date as August 27, 2014. IAF, Tabs 2, 7. The agency filed a joint motion 

to reschedule these deadlines because the deciding official, who was out on 

medical leave, was unavailable to attend the hearing on August 27, 2014.

2

 IAF, 

Tab 8 at 4. The administrative judge granted the motion and issued an order 

 2 Based on the record, the appellant’s counsel agreed to reschedule the hearing date and 

requested that the parties also file a motion to modify all deadlines including discovery 

so as to provide the appellant additional time to submit discovery responses and to 

discuss settlement. IAF, Tab 8 at 4, Tab 15 at 3; Petition for Review (PFR) File, Tab 1 

at 14-16.
3

rescheduling the deadlines to September 12, 2014, September 16, 2014, and

October 1, 2014, respectively. IAF, Tab 9.

¶4 According to the administrative judge, the appellant thereafter failed to:

submit prehearing submissions; appear for the September 16, 2014 prehearing 

conference; and return the administrative judge’s telephone messages on 

September 16, 26, or 29, 2014. IAF, Tab 14, Tab 17, Initial Decision (ID) at 2. 

On September 30, 2014, the day before the rescheduled hearing, the 

administrative judge cancelled the hearing and ordered the appellant to show 

cause on or before October 6, 2014, why the appeal should not be dismissed for 

failure to prosecute. IAF, Tab 14. On October 7, 2014, the day after the deadline 

to respond to the show cause order, the appellant, through his attorney, submitted 

a response in which his attorney explained that he was in the process of moving

and finding new housing and that, after moving into a new home on October 3, 

2014, he discovered that the property did not have cellular phone reception or

coverage by his existing internet provider. IAF, Tab 15 at 3-4. The 

administrative judge declined to consider the appellant’s untimely response to the 

show cause order and issued an initial decision dismissing the appeal for failure 

to prosecute. ID at 3.

¶5 The appellant has filed a petition for review in which he reiterates the 

reasons why he failed to comply with the administrative judge’s orders as well as 

argues that he attempted to file a response to the show cause order on October 6, 

2014, but was unsuccessful due to technical problems with the Board’s e-appeal 

website. PFR File, Tab 1 at 5-8. The appellant further argues that dismissal for 

failure to respond to one order is excessive and that the agency similarly failed to 

participate in the prehearing conference and submitted its prehearing submissions 

past the deadline. Id. at 11-12. The agency has filed a response and an amended 

response in opposition to the appellant’s petition. PFR File, Tabs 3-4. 
4

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 The sanction of dismissal with prejudice may be imposed if a party fails to 

prosecute or defend an appeal. Davis v. Department of Commerce, 120 M.S.P.R. 

34, ¶ 17 (2013); see 5 C.F.R. § 1201.43(b). Such a sanction should be imposed 

only when a party has: (1) failed to exercise basic due diligence in complying 

with Board orders; or (2) exhibited negligence or bad faith in its efforts to 

comply. Davis, 120 M.S.P.R. 34, ¶ 18 (citing Williams v. U.S. Postal Service,

116 M.S.P.R. 377, ¶ 7 (2011)). Absent an abuse of discretion, the Board will not 

reverse an administrative judge’s determination regarding sanctions. Davis,

120 M.S.P.R. 34, ¶ 18. The Board generally will not dismiss an appeal for failure 

to prosecute based on a single instance of failure to comply with a Board order. 

See, e.g., Burnett v. Department of the Navy, 71 M.S.P.R. 34, 38 (1996).

¶7 We find that the administrative judge did not abuse his discretion in 

dismissing the appeal for failure to prosecute. Based on our review of the record 

below, the appellant, who was represented by counsel below, failed to exercise 

due diligence in prosecuting his appeal when he failed to comply with multiple 

Board deadlines, communications, and directives. As stated, the appellant failed 

to submit prehearing submissions as ordered, failed to participate in the 

prehearing conference, failed to respond to three separate phone messages from 

the administrative judge, and failed to timely respond to the order to show cause.

IAF, Tab 14; ID at 2. 

¶8 Even assuming that the administrative judge improperly failed to consider 

the appellant’s untimely response to the show cause order, any error did not 

prejudice the appellant’s rights because considering the appellant’s submission on 

review, we find no basis for reversal. See Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a 

party’s substantive rights provides no basis for reversal of an initial decision). 

¶9 The appellant’s arguments raised in his untimely response to the show cause 

order are generally the same as those raised in his petition for review. See IAF, 
5

Tab 15; see also PFR File, Tab 1. The appellant’s representative cites his “lack 

of time and focus” due to personal issues. PFR File, Tab 1 at 8. Specifically, he

asserts that he and his family were moving from Illinois to Massachusetts and 

living in temporary housing while trying to find a home because there was a 

housing shortage, his time was consumed filing a complaint with the Fair Housing 

Center of Greater Boston on behalf of his wife, and after they moved into a home 

on October 3, 2014, he discovered that there was no cellular phone reception or 

coverage by his existing internet provider. IAF, Tab 15 at 3-4; PFR File, Tab 1 

at 8-9. 

¶10 We are not persuaded that the appellant exercised due diligence in 

prosecuting his appeal. The appellant’s representative, who according to his 

response, does extensive work before the Board, acknowledges that he received 

two voicemails from the administrative judge, and that, concerning his failure to 

file prehearing submissions, he further acknowledges that “perhaps a motion for 

extension would have been warranted.” IAF, Tab 15 at 3; PFR File Tab 1 at 6-7. 

However, the appellant did not file prehearing submissions, request an extension, 

or respond to the administrative judge’s messages. 3

 Moreover, we are not 

persuaded that the appellant’s representative’s personal matters were so 

time-consuming that they prevented him from even requesting an extension of 

time to file prehearing submissions on or before September 12, 2014, to 

reschedule the prehearing conference on September 16, 2014, or to respond to the 

administrative judge’s messages, given that the appellant submitted discovery 

 3 We acknowledge that the agency’s prehearing submissions were untimely filed on 

September 24, 2014, however, the appellant failed to file prehearing submissions at all 

or to return any of the administrative judge’s telephone calls. See IAF, Tab 13 at 4, n.1. 

In addition, the agency promptly returned the administrative judge’s call on 

September 16, 2014, the date of the prehearing conference, and informed the 

administrative judge that the agency was available for a prehearing conference at a later 

time convenient for everyone and was prepared to move forward with the hearing as 

scheduled on October 1, 2014. See id. However, the administrative judge and the 

agency tried but were unable to reach the appellant’s representative. PFR File, Tab 1 

at 7, n.2.
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responses on September 13, 2014.

4

 See IAF, Tab 12. Thus, we find that the 

appellant failed to make a good faith effort to comply with the administrative 

judge’s orders and exhibited a lack of due diligence. 

¶11 Lastly, while the appellant’s representative specifically indicates that his 

client is not at fault, the Board has long held that an appellant is responsible for 

the errors of his chosen representative. See, e.g., Simon v. Department of 

Commerce, 111 M.S.P.R. 381, ¶ 13 (2009). Under these circumstances, we 

conclude that the appellant failed to show that the administrative judge erred in 

dismissing his appeal for failure to prosecute.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS5

You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5 

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you 

submit your request by regular U.S. mail, the address of the EEOC is:

 4 In any event, the appellant’s representative’s personal problems are insufficient to 

establish good cause for untimely filings. See Harris v. Department of Defense, 

101 M.S.P.R. 123, ¶ 7 (2006) (finding that unsupported general claims of seeking 

employment and attempting to avoid foreclosure do not establish good cause for 

waiving a filing deadline).

5 The administrative judge failed to inform the appellant of his mixed-case right to 

appeal from the initial decision on his retaliation claim to the Equal Employment 

Opportunity Commission and/or the United States District Court. This was error, but it 

does not constitute reversible error because we notify the appellant of his mixed-case 

appeal rights in this Final Order. See Grimes v. U.S. Postal Service, 39 M.S.P.R. 183, 

186-87 (1988).
7

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request 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, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 

the district court no later than 30 calendar days after your receipt of this order. If 

you have a representative in this case, and your representative receives this order 

before you do, then you must file with the district court no later than 30 calendar 

days after receipt by your representative. If you choose to file, be very careful to 

file on time. 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
8

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 

29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board