UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

HAROLD WILLIAMSON, JR., 1

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

SF-0752-13-4374-I-1

DATE: January 23, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL2

Harold Williamson, Jr., Antelope, California, pro se.

Annette B. Kuz, Esquire, San Francisco, California, for the agency.

Jason DeRosa, Esquire, Portland, Oregon, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

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

Engineers/NW/South Pacific Division v. Department of the Army, MSPB Docket No. 

SF-0752-14-0285-I-1.

2 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed his appeal with prejudice 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 

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). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 On June 4, 2013, the agency issued a Notice of Proposed Furlough 

informing the appellant, a Contract Specialist, that he 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 

March 1, 2013.” Initial Appeal File (IAF), Tab 1 at 7-9. It does not appear that 

the appellant responded to the proposal notice. By written notice dated June 24, 

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

furloughed as outlined in the proposal notice. See id. at 11-13. The record 

includes a Standard Form 50 reflecting the appellant’s furlough, effective July 8, 
3

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.

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

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

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

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

Engineers/NW/South Pacific Division v. Department of the Army, MSPB Docket 

No. SF-0752-14-0285-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 10. In this order, the administrative judge cautioned that, if an 

appellant failed to appear for the aforementioned conferences or otherwise failed 

to 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 10

at 4. The record reflects that the appellant did not appear for the status 

conference or the prehearing conference. See CAF, Tabs 12, 17. The 

administrative judge’s June 6, 2014 order and summary of prehearing conference 

included an order for appellants who had not requested a hearing, instructing 

them to submit their written submissions in support of their appeals by June 30, 

2014. CAF, Tab 17 at 6. The appellant did not file anything by that date. In a 

July 3, 2014 order, the administrative judge directed appellants in the 

consolidated appeal who had not participated in any conference call or hearing 

and who had not filed any submission to indicate their intent to pursue their 

appeal to show cause why their appeals should not be dismissed for failure to 

prosecute. CAF, Tab 22. The appellant did not respond to the show cause order 

by the July 10, 2014 time frame.

¶4 On July 21, 2014, the administrative judge issued an initial decision, 

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

Tab 4, Initial Decision (ID). In particular, the administrative judge found that the 
4

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

he, among other things, failed to appear for the scheduled status conference call, 

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

of record submission, and failed to respond to the show cause order. ID at 2-3.

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

Petition for Review (PFR) File, Tabs 1, 3. On review, the appellant asserts that: 

(1) 9 months passed without any action required from him until the April 17, 

2014 hearing order; (2) he did not understand that the conference call was

“mandatory,” instead of “optional”; and (3) he thought that the “final court 

decision concerning the furlough challenge” would apply to all of the appellants

in the consolidated appeal. PFR File, Tab 1 at 4. He also states that he never 

intended to have the appeal dismissed. Id. 

¶6 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, 2015 MSPB 

5, ¶ 6; 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. Id. (citing Davis v. Department of Commerce, 120 M.S.P.R. 34, ¶ 18

(2013)). Absent an abuse of discretion, the Board will not reverse an 

administrative judge’s determination regarding sanctions. Leseman, 2015 MSPB 

5, ¶ 6; Davis, 120 M.S.P.R. 34, ¶ 18.

¶7 In Leseman, an appellant in another consolidated furlough appeal 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, and she was warned that her failure to participate in the 

appeal could result in the dismissal of her appeal with prejudice. See 

Leseman, 2015 MSPB 5, ¶ 7. The Board found that Ms. Leseman failed to 

exercise due diligence in prosecuting her appeal because she failed to take any 

steps to pursue her appeal until she filed her petition for review, and it affirmed 
5

the administrative judge’s decision to dismiss the furlough appeal for failure to 

prosecute. Id. 

¶8 The circumstances of the instant appeal are very similar to the

circumstances in Leseman. Because there is no evidence that the appellant took 

any steps to pursue his appeal until he filed his petition for review, and he was 

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

his appeal with prejudice, we find that the appellant failed to exercise due 

diligence in prosecuting his appeal. We therefore affirm the administrative 

judge’s decision to dismiss the appeal with prejudice for failure to prosecute. See 

Leseman, 2015 MSPB 5, ¶ 7. The appellant’s assertion on review, that he did not 

realize that the conference call was mandatory, is belied by the administrative 

judge’s April 17, 2014 order, which informed him of the consequences of not 

appearing for any conference calls. Moreover, his assertion does not explain his 

failure to tender a close of record submission or his failure to respond to the 

administrative judge’s order to show cause. We have considered the appellant’s 

remaining arguments on review but they are unavailing.

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 
6

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.

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board