UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RITA EASTON,

Appellant,

v.

DEPARTMENT OF THE TREASURY,

Agency.

DOCKET NUMBER

DC-1221-13-0174-W-2

DATE: August 29, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Rita Easton, Washington, D.C., pro se.

Byron D. Smalley, Esquire, and Felix M. Digilov, Washington, D.C., for 

the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed the 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 interpretation of statute or 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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).

¶2 The appellant filed her appeal in December 2012. MSPB Docket No.

DC-1221-13-0174-W-1 (W-1), Initial Appeal File (IAF), Tab 1. In January 2013, 

the administrative judge ordered the appellant to file a statement within 10 

calendar days concerning whether her appeal was within the Board’s jurisdiction. 

W-1, IAF, Tab 7 at 5-6. The appellant did not respond. The agency filed a 

motion to compel discovery in February 2013 because the appellant failed to 

respond to discovery and failed to attend a scheduled deposition. W-1, IAF, Tab 

8 at 4-5. Later in February 2013, the administrative judge dismissed the appeal 

without prejudice pending the effect of new legislation on the appeal. 2

 W-1, IAF, 

Tab 9. The Board refiled the appeal in September 2013. MSPB Docket No. 

DC-1221-13-0174-W-2 (W-2), Initial Appeal File (IAF), Tab 2. On March 11, 

2014, the administrative judge ordered the appellant to file a statement 

concerning the issue of Board jurisdiction on or before March 14, 2014. W-2, 

 2 The Board had directed administrative judges to dismiss pending individual right of 

action appeals without prejudice that might have been impacted by the Whistleblower 

Protection Enhancement Act of 2012 (WPEA) until the issue of retroactivity was 

decided. W-1, IAF, Tab 9. 
3

IAF, Tab 3 at 7-8. The appellant did not respond. On March 28, 2014, the 

administrative judge again ordered the appellant to file a response to the 

jurisdiction question and gave the appellant 5 days to respond. W-2, IAF, Tab 4. 

The administrative judge warned the appellant that failure to comply with the 

terms of his order could result in the imposition of sanctions, including dismissal 

of the appeal. Id. The appellant still did not respond. On April 4, 2014, the 

administrative judge dismissed the appeal for failure to prosecute, finding that the 

appellant had failed to exercise basic due diligence by her repeated failure to 

respond to Board orders. W-2, IAF, Tab 5 at 3.

¶3 On petition for review, the appellant admits that she received the March 11,

2014 jurisdiction order. Petition for Review (PFR) File, Tab 1 at 4. She also 

presents several arguments in her petition, including that the agency has failed to 

respond to some of her allegations and failed to comply with Board orders and 

timelines. See id. at 1-2. The appellant argues that her appeal should not be 

dismissed because of the agency’s failure to timely respond and address all of her 

allegations. Id. at 6. The appellant also presents arguments concerning the 

validity of the administrative judge’s signature on several of the orders and states 

that she was entitled to a status conference with respect to her case. Id. at 2-6. 

Finally, the appellant argues that her appeal should not have been dismissed 

without prejudice because the WPEA is not applicable to her case. 3

 Id. at 3, 6.

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

prosecute or defend an appeal. Williams v. U.S. Postal Service, 116 M.S.P.R. 

377, ¶ 7 (2011) (citing Ahlberg v. Department of Health & Human 

Services, 804 F.2d 1238, 1242 (Fed. Cir. 1986); 5 C.F.R. § 1201.43(b)). 

Although the Board’s regulation, 5 C.F.R. § 1201.43(b), does not set forth 

guidelines for exercising this authority, the Board has held, in pertinent part, that 

 3 We note that the appellant did not file a petition for review of the initial decision 

dismissing her initial appeal without prejudice. That decision to dismiss that appeal is 

not before the Board at this time.
4

such a severe sanction is only appropriate when necessary to serve the ends of 

justice, and should only be imposed when a party: (1) has failed to exercise due 

diligence in complying with Board orders; or (2) has exhibited negligence or bad 

faith in its efforts to comply. Williams, 116 M.S.P.R. 377, ¶ 7. Furthermore, 

absent a showing of abuse of discretion, the Board will not reverse an 

administrative judge’s imposition of sanctions. Id.

¶5 It is undisputed that the appellant failed to respond to the administrative 

judge’s jurisdictional orders. None of the appellant’s evidence or argument on 

review demonstrates that she exercised due diligence in the proceedings below. 

Therefore, we find no abuse of discretion in the administrative judge’s decision to 

impose sanctions under 5 C.F.R. § 1201.43(b). See Williams, 116 M.S.P.R. 377, 

¶¶ 9-12 (dismissal for failure to prosecute was appropriate where the appellant 

failed to respond to multiple Board orders). Accordingly, the appellant has 

shown no basis upon which to disturb the initial decision dismissing her appeal 

for failure to prosecute.

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.

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 want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 
5

may request review of this final decision by the United States Court of Appeals 

for the Federal Circuit or any court of appeals of competent jurisdiction. The 

court of appeals must receive your petition for review within 60 days after the 

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If 

you choose to file, be very careful to file on time. You may choose to request 

review of the Board’s decision in the United States Court of Appeals for the 

Federal Circuit or any other court of appeals of competent jurisdiction, but not 

both. Once you choose to seek review in one court of appeals, you may be 

precluded from seeking review in any other court.

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 about the United States Court of Appeals for the Federal 

Circuit 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. 

Additional information about other courts of appeals can be found at their 

respective websites, which can be accessed 

through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

If you are interested in securing pro bono representation for an appeal to the 

United States Court of Appeals for the Federal Circuit, 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 Federal Circuit. The Merit Systems Protection Board
6

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