UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

NICOLE S. WILSON,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

CH-0845-16-0149-I-1

DATE: September 29, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL*

Nicole S. Wilson, Danville, Illinois, pro se.

Karla W. Yeakle, Washington, D.C., 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 her retirement annuity 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 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the administrative 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. 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, 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). 

BACKGROUND

¶2 On December 10, 2015, the appellant filed a Board appeal challenging the 

reconsideration decision by the Office of Personnel Management (OPM) that

found that she received an overpayment in retirement annuity benefits under the 

Federal Employees’ Retirement System and informed her of OPM’s intent to 

collect the overpayment by deducting monthly installments from her annuity. 

Initial Appeal File (IAF), Tab 1 at 9. In her initial appeal filing, the appellant 

requested a hearing. Id. at 1. 

¶3 On February 17, 2016, the administrative judge ordered the parties to file 

prehearing submissions on or before March 8, 2016, and scheduled a telephonic 

prehearing conference for March 15, 2016. IAF, Tab 7 at 1-2. The administrative 

judge also advised the appellant that failure to respond to the order or failure to 

appear for the prehearing conference could result in her appeal being dismissed 

for failure to prosecute. Id. at 1. The appellant did not submit any prehearing 

submissions, nor did she appear for the prehearing conference. IAF, Tab 8.

¶4 On March 15, 2016, the administrative judge issued another order to 

reschedule the prehearing conference and noted the appellant’s failure to follow 
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the previous order. Id. The administrative judge again warned the appellant that 

her failure to appear for the rescheduled prehearing conference would result in 

her appeal being dismissed for failure to prosecute. Id. The appellant failed to 

appear for the rescheduled prehearing conference. IAF, Tab 9.

¶5 On March 21, 2016, the administrative judge issued a Summary of 

Telephonic Status Conference noting the appellant’s repeated failures to follow 

Board orders, despite several warnings regarding the sanction of dismissal of her 

appeal for failure to prosecute. Id. The administrative judge afforded the 

appellant 1 week to show cause why her appeal should not be dismissed for 

failure to prosecute and informed her that, absent a showing of good cause, she 

would dismiss the appeal for failure to prosecute on March 28, 2016, without 

further notice. Id. The appellant again failed to respond. 

¶6 On April 13, 2016, the administrative judge dismissed the appeal for failure 

to prosecute, finding that dismissal was appropriate because the appellant failed 

to respond to two Board orders and a final order to show cause. IAF, Tab 10, 

Initial Decision. 

¶7 On May 12, 2016, the appellant filed a petition for review. Petition for 

Review (PFR) File, Tab 1. The agency has filed an opposition to the appellant’s 

petition. PFR File, Tab 4. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 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); 5 C.F.R. § 1201.43(b). Such a sanction 

should be imposed only when a party has failed to exercise basic due diligence in 

complying with Board orders or when a party has exhibited negligence or bad 

faith in its efforts to comply. Leseman, 122 M.S.P.R. 139, ¶ 6. Repeated failure 

to respond to multiple Board orders can reflect a failure to exercise basic due 

diligence. Williams v. U.S. Postal Service, 116 M.S.P.R. 377, ¶ 9 (2011). Absent 
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an abuse of discretion, the Board will not reverse an administrative judge’s 

determination regarding sanctions. Leseman, 122 M.S.P.R. 139, ¶ 6. 

¶9 Here, the appellant failed to appear for two scheduled conferences, failed to 

file prehearing submissions as ordered by the administrative judge, and did not 

file a response when the administrative judge informed the appellant that her 

appeal would be dismissed for failure to prosecute absent a showing of good 

cause. IAF, Tabs 8-10. The Board has upheld dismissals for failure to prosecute 

in similar situations. See, e.g., Leseman, 122 M.S.P.R. 139, ¶¶ 3-4, 7 (upholding 

a dismissal for failure to prosecute after the appellant failed to appear at two 

conferences, failed to submit prehearing submissions, and failed to respond to an 

order to show cause). Despite three separate warnings that a failure to abide by 

the Board’s orders would result in a dismissal for failure to prosecute, the only 

contact the appellant made with the Board after her initial appeal filing was the 

filing of the petition for review. 

¶10 Moreover, the appellant’s brief argument on review is limited to the merits 

of her retirement annuity appeal and is not determinative of the propriety of the 

dismissal for failure to prosecute. PFR File, Tab 1; see Bennett v. Department of 

the Navy, 1 M.S.P.R. 683, 688 (1980) (concluding that an appellant’s argument 

regarding the merits of the underlying agency action was not determinative of the 

propriety of a dismissal for failure to prosecute). Finally, the appellant has not

argued, and the record does not show, that the administrative judge abused her 

discretion in dismissing the appeal with prejudice for failure to prosecute. 

¶11 Based on the foregoing, we agree with the administrative judge’s finding 

that dismissal was an appropriate sanction, and we further find that the appellant 

failed to exercise basic due diligence in prosecuting her appeal. Accordingly, we 

affirm the initial decision’s dismissal with prejudice for failure to prosecute. 
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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

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 U.S. 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 U.S. 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 an appeal to 

the U.S. 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
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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.

______________________________

Jennifer Everling

Acting Clerk of the Board