UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DANIEL A. GREGORY,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

PH-315H-20-0089-I-1

DATE: July 24, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Daniel A. Gregory, Fort Meade, Maryland, pro se.

Kimberly Karle, Esquire, Portsmouth, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

dismissed his removal appeal for failure to prosecute. For the reasons discussed

below, we GRANT the appellant's petition for review, and VACATE the initial

decision, but we DISMISS the appeal for lack of jurisdiction.

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

¶2 On December 2, 2019, the appellant filed the instant appeal challenging the

agency’s decision to terminate him during his probationary period. Initial Appeal

File (IAF), Tab 1. In an acknowledgment order dated December 3, 2019, the

administrative judge informed the appellant of how to establish Board jurisdiction

as a probationary or non-probationary employee and ordered him to file evidence

and argument showing why the appeal should not be dismissed for lack of a

nonfrivolous allegation of jurisdiction. IAF, Tab 2 at 2-5. The administrative

judge further informed the appellant that his failure to respond may result in the

imposition of sanctions. Id. at 1. The appellant did not respond to this order.

¶3 After the agency moved to dismiss the appeal for lack of jurisdiction and

moved for sanctions, IAF, Tab 4 at 6-11, Tab 8 at 4-6, the administrative judge

issued a December 26, 2019 Order to Show Cause directing the appellant to show

cause as to why the appeal should not be dismissed for lack of jurisdiction, IAF,

Tab 9 at 1. The order stated that the appellant’s response must be received no

later than January 3, 2020. Id. After the response window lapsed, the

administrative judge issued an initial decision on January 6, 2020, dismissing the

appeal for failure to prosecute. IAF, Tab 10, Initial Decision.

¶4 The appellant filed a timely petition for review on January 14, 2020.

Petition for Review (PFR) File, Tab 1. He argues that he was unable to respond

because the orders were issued during the Christmas holiday. Id. at 3. He further

argues that, during this time, he was caring for his wife who had recently been

diagnosed with cancer. Id.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge erred in dismissing the appeal for failure to prosecute.

¶5 Dismissal for failure to prosecute is a sanction that 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). The imposition of such a

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

diligence in complying with an order or has exhibited negligence or bad faith in

its efforts to comply. Leseman, 122 M.S.P.R. 139, ¶ 6. An administrative judge

should not resort to the imposition of sanctions unless necessary to serve the ends

of justice. Holland v. Department of Labor, 108 M.S.P.R. 599, ¶ 9 (2008).

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

administrative judge’s determination regarding sanctions. Wiggins v. Department

of the Air Force, 113 M.S.P.R. 443, ¶ 11 (2010).

¶6 Here, the record does not reflect that the appellant exercised negligence or

bad faith in his efforts to comply. Furthermore, we disagree that the appellant

failed to exercise basic due diligence in complying with the administrative

judge’s orders under the circumstances. First, the appellant was pro se. See Tully

v. Department of Justice, 95 M.S.P.R. 481, ¶ 11 (2004) (stating that dismissal for

failure to prosecute is a drastic sanction that should not be imposed lightly,

especially when the appellant is not represented). Second, as set forth above, the

administrative judge set the response date to the Order to Show Cause between

December 26, 2019, and January 3, 2020—a narrow window falling during the

holiday period. Third, the appellant’s wife was undergoing chemotherapy, which

the appellant explained in his initial appeal and reiterates on review. IAF, Tab 1

at 5; PFR File, Tab 1. Finally, the appellant was provided with only

approximately 1 month to comply from the time the administrative judge first

issued the acknowledgment order to when the initial decision was issued. Cf.

Heckman v. Department of the Interior, 106 M.S.P.R. 210, ¶ 16 (2007) (finding

that the administrative judge did not abuse her discretion by dismissing the

appellant's claims for failure to prosecute when the appellant did not comply with

multiple orders over a period of nearly 21⁄2 months).

¶7 The administrative judge justifiably may have been frustrated with the

appellant’s lack of responses to the acknowledgment and show cause orders.

However, the extreme sanction of dismissal for failure to prosecute does not serve

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the ends of justice here. See Tully, 95 M.S.P.R. 481, ¶¶ 10, 12 (vacating an

administrative judge’s dismissal for failure to prosecute because the sanction was

too severe although the pro se appellant had twice failed to file prehearing

submissions and to appear for prehearing conferences). Accordingly, we find that

the administrative judge abused his discretion in dismissing the appeal for failure

to prosecute, and we vacate the initial decision. However, for the reasons set

forth below, we find that remand is not necessary because the Board lacks

jurisdiction over this appeal

The appeal is dismissed for lack of jurisdiction.

¶8 The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Whether an individual in the

competitive service has the right to appeal an adverse action depends on whether

he is an “employee” under 5 U.S.C. § 7511(a)(1)(A). See Walker v. Department

of the Army, 119 M.S.P.R. 391, ¶ 5 (2013). Title 5 U.S.C. § 7511(a)(1)(A)

defines an “employee” as an individual in the competitive service who (i) is not

serving a probationary or trial period under an initial appointment, or (ii) has

completed 1 year of current continuous service under other than a temporary

appointment limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A). The two prongs

of the statutory definition are distinct and provide alternatives by which an

individual may be found to be an employee with appeal rights. McCormick v.

Department of the Air Force, 307 F.3d 1339, 1342-43 (Fed. Cir. 2002).

Probationary employees in the competitive service who do not satisfy either

definition may nevertheless have the right to appeal a termination to the Board

under 5 C.F.R. §§ 315.805-.806 by showing that the termination was based on

marital status or partisan political reasons, or that the action was procedurally

improper. Tarr v. Department of Veterans Affairs, 115 M.S.P.R. 216, ¶ 10

(2010).

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¶9 If the appellant in an adverse action appeal makes a nonfrivolous allegation

of jurisdiction, i.e., an allegation that, if proven, could establish the Board’s

jurisdiction, he is entitled to a hearing at which he must prove jurisdiction by a

preponderance of the evidence. Garcia v. Department of Homeland Security,

437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). Before dismissing an appeal for

lack of jurisdiction, an administrative judge must provide an appellant with

explicit information on what is required to establish an appealable jurisdictional

issue and an opportunity to meet that burden. Burgess v. Merit Systems

Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985).

¶10 Here, the appellant indicated in his initial appeal that he was serving a

probationary period and had 6 months of Government service at the time of his

termination. IAF, Tab 1 at 1. In his acknowledgment order, the administrative

judge notified the appellant of the various ways he could establish Board

jurisdiction. IAF, Tab 2. By the time the administrative judge issued the initial

decision more than a month later, the appellant had not submitted any evidence or

argument on the jurisdictional issue. Although we find that the appeal should not

have been dismissed for failure to prosecute, we find that the appellant had notice

of the jurisdictional issues and an opportunity to respond before the record

closed, and therefore we will address whether the appellant made nonfrivolous

allegations of jurisdiction.

¶11 According to the appellant’s pleadings and documentary evidence submitted

below, he was appointed to the competitive service in April 2019 and terminated

during his probationary period approximately 6 months later. IAF, Tab 1 at 1, 3,

7-11. Thus, he has not made a nonfrivolous allegation that he was an “employee”

under 5 U.S.C. § 7511(a)(1)(A). Additionally, his termination was based on his

performance during his probationary period, id. at 8, and he has not alleged that

he was terminated “for reasons based in whole or in part on conditions arising

before his appointment.” 5 C.F.R. § 315.805. The appellant also made no

allegation that he was terminated based on his marital status or partisan political

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reasons. 5 C.F.R. § 315.806(b). Therefore, we find that the appellant failed to

nonfrivolously allege that the Board has jurisdiction over his appeal, and we

dismiss the appeal without a hearing.

NOTICE OF APPEAL RIGHTS2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

2

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

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If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

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race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

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

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

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other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction.3 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following

address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. 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, 10, 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

3

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

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

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

9
Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

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

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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