UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 5

Docket No. SF-0752-13-1722-I-1

Jackie Leseman,*

Appellant,

v.

Department of the Army,

Agency.

January 9, 2015

Jackie Leseman, Wasilla, Alaska, pro se.

Michael H. Gilbert and Mike J. Schroeder, Joint Base ElmendorfRichardson, Alaska, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of an initial decision that 

dismissed her appeal with prejudice for failure to prosecute. For the following 

reasons, we DENY the petition for review and AFFIRM the initial decision.

 

* Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Corps of 

Engineers/Pacific Ocean v. Department of the Army, MSPB Docket No. SF-0752-14-

0290-I-1.
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BACKGROUND

¶2 On May 31, 2013, the agency issued a Notice of Proposed Furlough 

informing the appellant, a Supervisory Project Officer, that she would be 

furloughed for no more than 11 workdays due to “the extraordinary and serious 

budgetary challenges facing the Department of Defense (DOD) for the remainder 

of Fiscal Year (FY) 2013, the most serious of which is the sequester that began 

on May 1, 2013.” Initial Appeal File (IAF), Tab 1 at 9-11. It does not appear 

that the appellant responded to the proposal notice. By written notice dated June 

20, 2013, the agency’s deciding official informed the appellant that she would be 

furloughed as outlined in the proposal notice. See id. at 12-14. The record 

includes a Standard Form 50 reflecting the appellant’s furlough, effective July 8, 

2013, on discontinuous days between July 8, 2013, and September 30, 2013, and 

not to exceed a maximum of 88 hours during the furlough period. Id. at 7-8.

¶3 The appellant filed a Board appeal challenging the agency’s action but 

indicated that she did not want a hearing. See IAF, Tab 1 at 2. In a furlough 

procedures order, the administrative judge informed the appellant that her appeal 

had been consolidated with the appeals of similarly situated employees. Corps of 

Engineers/Pacific Ocean v. Department of the Army, MSPB Docket No. 

SF-0752-14-0290-I-1, Consolidated Appeal File (CAF), Tab 2. On April 17, 

2014, the administrative judge issued an order in which she scheduled a 

telephonic status conference, a prehearing conference, and a close of record date. 

CAF, Tab 12. In her order, the administrative judge cautioned that, if an 

appellant failed to appear for the aforementioned conferences or otherwise follow 

her orders, she might issue sanctions pursuant to 5 C.F.R. § 1201.43, which could 

include dismissing the appeal for failure to prosecute. CAF, Tab 12 at 4. The 

record reflects that the appellant did not participate in the status conference or the 

prehearing conference. See CAF, Tabs 15, 17. The administrative judge’s 

June 5, 2014 order and summary of prehearing conference included an order for

appellants who had not requested a hearing, instructing them to submit their 
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written submissions in support of their appeals by June 27, 2014. CAF, Tab 17 at 

5. The appellant did not file anything by that date. On July 1, 2014, the 

administrative judge issued a show cause order directed at the appellants in the 

consolidated appeal who had not participated in conference calls and the hearing 

and had not filed any submissions beyond their initial appeals. CAF, Tab 28.

She ordered those appellants to show cause why she should not dismiss their 

appeals for failure to prosecute. Id. The appellant did not respond to the show 

cause order by the July 8, 2014 time limit. See id.

¶4 On July 10, 2014, the administrative judge issued an initial decision, 

dismissing the appellant’s appeal with prejudice for failure to prosecute. IAF, 

Tab 5, Initial Decision (ID). In particular, the administrative judge found that the 

appellant failed to exercise basic due diligence in prosecuting her appeal because 

she failed to appear for the scheduled status conference call, to submit a close of 

record submission or a response to the agency’s close of record submission, or to

respond to the show cause order on the failure to prosecute issue. ID at 2-3.

¶5 The appellant has filed a petition for review, which the agency has 

opposed. Petition for Review (PFR) File, Tabs 1, 3. In her petition for review, 

the appellant does not provide any explanation for her failure to participate in the 

status conference call, submit a close of record submission, or respond to the 

show cause order. PFR File, Tab 1. Rather, she briefly states the basis for her

challenge to the agency’s decision to impose the furlough. Id. at 4.

ANALYSIS

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

with Board orders; or (2) a party has exhibited negligence or bad faith in its 

efforts to comply. Davis, 120 M.S.P.R. 34, ¶ 18 (citing Williams v. U.S. Postal 
4

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.

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

imposing the sanction of dismissal with prejudice. The record reflects that the 

appellant failed to appear for the scheduled status conference and prehearing 

conference, failed to submit a close of record submission, and failed to respond to 

the administrative judge’s show cause order. See CAF, Tabs 15, 17. Indeed, 

there is no evidence that the appellant took any steps to pursue her appeal until 

she filed her petition for review. The record also reflects that the appellant was 

warned that her failure to participate in the appeal could result in the dismissal of 

her appeal with prejudice. See CAF, Tabs 12, 28. The appellant has not 

attempted to explain why she did not respond to the administrative judge or 

participate in the proceedings. Her brief argument on review regarding the merits 

of the furlough is not determinative of the propriety of the dismissal for failure to 

prosecute. See Bennett v. Department of the Navy, 1 M.S.P.R. 683, 688 (1980). 

Based on the foregoing circumstances, we agree with the administrative judge’s 

finding that the appellant failed to exercise due diligence in prosecuting her 

appeal, and we affirm the dismissal with prejudice for failure to prosecute. See,

e.g., Williams, 116 M.S.P.R. 377, ¶¶ 2-4, 9-12 (affirming the administrative 

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 2 1⁄2 months).
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ORDER

¶8 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States 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 United States 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 United 

States 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.
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If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The 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:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.