UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JEAN THOMAS MALONE, 1

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

DC-0752-13-1091-I-1

DATE: June 8, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL2

Jean Thomas Malone, Fredericksburg, Virginia, pro se.

Timothy R. Zelek, Quantico, Virginia, 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 the appeal for failure to prosecute. Generally, we grant petitions such 

as this one only when: the initial decision contains erroneous findings of material 

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

Corps-Combat Development Program v. Department of the Navy, MSPB Docket No. 

DC-0752-15-0256-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2 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 May 29, 2013, the agency proposed to furlough the appellant, a 

Supervisory Sea Viking Deputy Director, 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 4 at 14. It does not appear that the appellant responded to the proposal 

notice. By written notice dated July 1, 2013, the agency’s deciding official 

informed the appellant that he would be furloughed as outlined in the proposal 

notice. Id. at 11-12. The record includes evidence reflecting the appellant’s 

furlough, effective July 8, 2013, on 6 days during the furlough period. Id. at 5-7, 

10. 

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

indicated that he did not want a hearing. IAF, Tab 1. In a furlough procedures 

order, the administrative judge informed the appellant that his appeal had been 
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consolidated with the appeals of similarly situated employees. Marine 

Corps-Combat Development Program v. Department of the Navy, MSPB Docket 

No. DC-0752-15-0256-I-1, Consolidated Appeal File (CAF), Tab 1. Among other 

things, that order required the appellants to specifically identify the factual bases 

for any defenses concerning the furlough. Id. at 6. The appellant did not file any 

response to that order. 

¶4 On December 22, 2014, the administrative judge ordered any appellant who 

intended to raise arguments or affirmative defenses that were not already 

identified to file written notice. CAF, Tab 3 at 5. The order stated that the 

administrative judge might deem waived any allegations or affirmative defenses 

not identified. Id. The appellant did not respond. 

¶5 On January 7, 2015, the administrative judge issued an order directing the 

parties to participate in a telephonic status conference call on January 29, 2015, at 

noon, Eastern Standard Time.

3

 CAF, Tab 4. That order stated that failure to 

participate in the conference call may lead to dismissal of the appeal for failure to 

prosecute or other sanctions. Id. The appellant did not participate in the 

conference call. CAF, Tab 7. After the conference call, the administrative judge 

ordered the appellants who had failed to participate in the conference call to show 

good cause why their appeals should not be dismissed for failure to prosecute

based on their failure to appear at the conference call or to respond to the 

December 22, 2014 notice. Id. In response to the show cause order, the appellant 

claimed that the time of the status conference had been changed without notice. 

IAF, Tab 5. On February 10, 2015, the administrative judge issued an initial 

decision dismissing the appeal with prejudice for failure to prosecute based on the 

appellant’s failure to show good cause for his not responding to multiple orders or 

 3 The administrative judge’s January 7, 2015 order included a typographical error 

setting the telephonic status conference call for January 29, 2014. It is clear that the 

administrative judge intended to schedule the conference call for January 29, 2015.
4

otherwise not participating in the prosecution of his appeal. IAF, Tab 6, Initial 

Decision (ID). 

¶6 The appellant has filed a petition for review again arguing that he missed 

the status conference because he had been informed the conference call would 

take place later in the day. Petition for Review (PFR) File, Tab 1. The agency 

has filed a response in opposition to the appellant’s petition for review. PFR File, 

Tab 3. In its response, the agency asserts that the administrative judge did not 

change the time of the status conference and the status conference call scheduled 

for later that day was for a different appellant. Id. at 5. 

¶7 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, 

122 M.S.P.R. 139, ¶ 6 (2015) (citing 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 order; or (2) a party has exhibited negligence 

or bad faith in its efforts to comply. Id. Absent an abuse of discretion, the Board 

will not reverse an administrative judge’s determination regarding sanctions. Id. 

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 Roy v. Department of 

the Treasury, 103 M.S.P.R. 638, ¶ 8 (2006).

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

dismissing the appeal for failure to prosecute. We find no support in the record 

for the appellant’s assertion that the administrative judge, without providing him 

notice, changed the time of the status conference. Both the administrative judge 

and the agency’s representative state that the time of the status conference call 

never changed. ID at 2; PFR File, Tab 3 at 4-5. Several of the appellants in the 

consolidated appeal attended the status conference. CAF, Tab 7. The petition for 

review includes what the appellant proffers as a picture of the administrative 

judge’s order scheduling the status conference. PFR File, Tab 1 at 3-4. The 

picture does not include the entire order. The time that the status conference was 
5

scheduled is not included in the portion of the order the appellant has submitted. 

In any event, we have reviewed the record, including the order scheduling the 

status conference, and find no evidence that the time of the teleconference 

changed, as alleged by the appellant. 

¶9 The appellant did not raise arguments contesting the agency’s furlough 

decision or raise affirmative defenses, as required by the administrative judge’s 

December 18, 2014 furlough procedures order and her December 22, 2014 notice 

to the appellants. CAF, Tabs 1, 3. He also failed to participate in the status 

conference. His response to the administrative judge’s show cause order did not 

present good cause for his failure to participate in the status conference or 

respond to the December 22, 2014 notice. See IAF, Tab 5. Based on the 

foregoing circumstances, we find no abuse of discretion in the administrative 

judge’s imposing sanctions based upon the appellant’s failure to exercise due 

diligence in prosecuting his appeal, and we AFFIRM the dismissal, with 

prejudice, for failure to prosecute. See Ahlberg v. Department of Health & 

Human Services, 804 F.2d 1238, 1242 (Fed. Cir. 1986) (presiding official 

justifiably and properly dismissed an appeal for failure to prosecute based on the 

appellants’ failure to make any submission in response to two orders directing 

them to clarify their claims).

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
6

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 See

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 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 information regarding pro bono 

representation for Merit Systems Protection Board appellants before the Federal 

Circuit. The Merit Systems Protection Board neither endorses the services
7

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