NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

MARITA C. MCDAVIS, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

__________________________ 

2011-3132 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in MSPB Docket No. CH0752110065-I-1. 

____________________________ 

Decided: January 25, 2012 

____________________________ 

MARITA C. MCDAVIS, of Detroit, Michigan, pro se. 

SARA B. REARDEN, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, for respondent. With her on the brief were JAMES M.

EISENMANN, General Counsel, and KEISHA DAWN BELL, 

Deputy General Counsel. 

__________________________ 

Before LOURIE, DYK and REYNA, Circuit Judges. 
MCDAVIS v. MSPB 2

PER CURIAM. 

Marita McDavis seeks review of the final decision of 

the Merit Systems Protection Board (“the Board”) dismissing her appeal for failure to prosecute. See McDavis 

v. Social Security Admin., No. CH0752110065-I-1 

(M.S.P.B. Mar. 23, 2011) (“Final Order”); McDavis v. 

Social Security Admin., No. CH0752110065-I-1 (M.S.P.B. 

Jan. 24, 2011) (“Initial Decision”). Because the Board did 

not abuse its discretion, we affirm. 

BACKGROUND

Marita McDavis was employed as a Paralegal Supervisor within the Social Security Administration (“SSA”). 

On October 24, 2010, the SSA demoted McDavis to a 

Paralegal based on two charges: (1) that McDavis violated 

5 U.S.C. § 3310 by interviewing and recommending a 

relative for an SSA position; and (2) that McDavis displayed a lack of candor when questioned about the events 

leading up to the first charge. 

McDavis appealed the demotion to the Board, and the 

administrative judge (“AJ”) assigned to the appeal found 

that McDavis failed to comply with four consecutive 

Board orders and dismissed her appeal for failure to 

prosecute. At the start of the proceeding, the AJ issued 

an Acknowledgement Order in October, 2010, requiring 

McDavis to exchange discovery with SSA. Initial Decision, at 2. Shortly thereafter, the AJ issued an order 

directing McDavis to participate in a telephonic prehearing conference on January 10, 2011, and to submit prehearing submissions. Id. McDavis failed to participate in 

the prehearing conference and failed to file her prehearing submissions. Id. The AJ then issued an order rescheduling the prehearing conference and extending the 

date for McDavis to submit prehearing submissions and 

the factual basis for her affirmative defenses. Id. In the 
3 MCDAVIS v. MSPB

order, the AJ advised McDavis that failure to comply with 

the order may result in sanctions including the dismissal 

of her appeal. Id. 

McDavis again failed to participate in the prehearing 

conference and failed to submit any of the required documents. Id. In response, the AJ issued an order providing 

McDavis a final opportunity to submit her documents and 

participate in the prehearing conference. Id. The order 

warned McDavis that the AJ intended to dismiss her 

appeal if she did not comply with the order. Id.

McDavis failed to participate in the prehearing conference and failed to submit any of the required documents. Id. The AJ then dismissed McDavis’s appeal for 

failure to prosecute, finding that she repeatedly failed to 

comply with multiple Board orders, rendering it “impossible to conduct discussions regarding matters related to 

this appeal.” Id. at 3. 

McDavis petitioned for review by the full Board, 

which affirmed the AJ’s dismissal and concluded that 

McDavis failed to establish that she exercised due diligence in prosecuting her appeal. Final Order, at 4. 

McDavis appealed to this court, and we have jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(9). 

DISCUSSION

The scope of our review in an appeal from a Board decision is limited. We can only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law; (2) 

obtained without procedures required by law, rule, or 

regulation having been followed; or (3) unsupported by 

substantial evidence.” 5 U.S.C. § 7703(c); see also Briggs 

v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 

2003). 
MCDAVIS v. MSPB 4

While an extreme sanction, Williamson v. Met Sys. 

Prot. Bd., 334 F.3d 1058, 1063 (Fed. Cir. 2003), Board 

regulations expressly authorize an AJ to dismiss an 

appeal with prejudice if the appellant fails to prosecute 

the appeal, 5 C.F.R. § 1201.43(b). We have recognized 

that failure to respond to the Board’s orders may justify 

dismissal. See Ahlberg v. Dep't of Health and Human 

Servs., 804 F.2d 1238, 1242–43 (Fed. Cir. 1986). Moreover, sanctions are within the discretion of the Board and 

will not be reversed unless there is a clear and harmful 

abuse of discretion. See Baker v. Dep’t of Health and 

Human Servs., 912 F.2d 1448, 1457 (Fed. Cir. 1990) 

(citing Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 

1378 (Fed. Cir. 1988)). 

On appeal, McDavis’s argues that the Board decision 

should be reversed because she did not timely receive 

orders from the Board. We disagree. The record indicates 

that McDavis provided the Board’s e-Appeal online system with an incorrect email address as well as a post 

office box address. See Final Order, at 2. McDavis’s 

submissions on appeal indicate that she was aware that 

the Board was providing notice of new documents on eAppeal online to the wrong email address by December 

28, 2010, weeks prior to the first telephonic prehearing 

conference. These submissions are consistent with the 

Board’s finding that, over one month prior to the dismissal of her case, an SSA representative informed 

McDavis that case-related notices were likely being sent 

to the wrong email address, that McDavis should update 

her email address with the Board’s e-Appeal online system, and that she could still access all case-related materials through e-Appeal online. Id. at 3. McDavis was 

aware that she was responsible for accessing e-Appeal 

online to inform herself about her case. Before the Board, 
5 MCDAVIS v. MSPB

McDavis only provided evidence that she had difficulty 

accessing the site on one occasion.1

At bottom, McDavis failed to comply with multiple 

Board orders. The AJ provided her three opportunities to 

participate in the proceedings and twice warned her that 

her failure to participate would be grounds to dismiss her 

case for failure to prosecute. While we are mindful of the 

severity of the sanction, on this record, we cannot hold it 

that it was an abuse of discretion to dismiss McDavis’s 

appeal for failure to prosecute. 

We have considered McDavis’s remaining arguments 

and conclude that they are without merit. For the foregoing reasons, the Board’s dismissal of McDavis’s appeal is 

AFFIRMED 

COSTS

No costs. 

 1 On appeal, McDavis provides additional evidence 

that she had difficulty accessing e-Appeal online, but this 

evidence was not before the Board, and we are obliged to 

review this case based on the record below.