UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FREDDIE C. CLARK, JR., 1 DOCKET NUMBER
Appellant, DC-0752-13-0745-I-1
v.
DEPARTMENT OF THE ARMY, DATE: March 10, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 2
Freddie C. Clark, Jr., Raeford, North Carolina, pro se.
Michael J. McHugh, Fort Bragg, North Carolina, 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
affirmed the furlough action. Generally, we grant petitions such as this one only
when: the initial decision contains erroneous findings of material fact; the initial
1
Pursuant to 5 C.F.R. § 1201.36(a), th is appeal was part of a consolidation. Army
Installation Management Command Employees III v. Department of the Army, Docket
No. DC-0752-14-0416-I-1.
2
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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). 3
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 On May 30, 2013, the agency issued a notice of proposed furlough
informing the appellant, a Relocation Specialist, that he would be furloughed 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 1 at 10-12. The appellant
responded to the notice of proposed furlough. See id. at 8-9. There is no decision
letter in the record 4; however, the deciding official stated in a declaration made
under penalty of perjury that he imposed the furlough. See Army Installation
Management Command Employees III v. Department of the Army, Docket No.
3
Our decision in this matter only applies to the appellant and not to the other appellants
in the consolidated appeal.
4
The agency explained below that it was attempting to locate the decision letter. See
IAF, Tab 7 at 5.
3
DC-0752-14-0416-I-1, Consolidated Appeal File (CAF), Tab 8. The record
includes a Standard Form 50 reflecting the appellant’s furlough, effective July 8,
2013, on discontinuous days between July 8, 2013, and September 30, 2013, and
not to exceed a maximum of 88 hours during the furlough period. IAF, Tab 7 at
16-18.
¶3 The appellant filed a Board appeal challenging the agency’s action, and he
requested a hearing. See IAF, Tab 1 at 1, Tab 5. In a furlough procedures order,
the administrative judge informed the appellant that his appeal had been
consolidated with the appeals of similarly-situated employees. CAF, Tab 1. The
administrative judge also issued an order in which she: (1) directed the
appellants who requested a hearing to submit a prehearing statement on or before
June 24, 2014; (2) scheduled a July 1, 2014 prehearing conference; (3) set a
July 8, 2014 hearing date for the appellants who requested a hearing; and
(4) scheduled a July 8, 2014 close of the record date for the appellants who did
not request a hearing. CAF, Tab 7. The administrative judge cautioned in this
order that any appellants who had requested a hearing and were not present for
the prehearing conference would not be permitted to testify, present evidence, or
examine witnesses at the hearing, and would instead receive a decision on the
written record. Id. The appellant did not attend the prehearing conference, nor
did he submit a prehearing statement.
¶4 The administrative judge issued an order canceling the hearing because the
appellants in this consolidation who requested a hearing did not submit any
prehearing submissions, did not appear for the prehearing conference, and did not
contact her to request a postponement or extension of the conference. CAF, Tab
10. She reiterated in this order that the record would close on July 8, 2014, and
that the parties could submit documentary evidence by that date. Id. The
appellant filed a close of the record submission, in which he opposed the
administrative judge’s decision to cancel the hearing and requested that the
hearing be rescheduled. He also included substantive arguments challenging the
4
furlough. IAF, Tab 8. The administrative judge issued an initial decision
affirming the agency’s furlough actions. CAF, Tab 11, Initial Decision (ID).
¶5 The appellant has filed a petition for review to which the agency opposes.
Petition for Review (PFR) File, Tabs 1, 4. In his petition for review, the
appellant “again” requests a hearing. PFR File, Tab 1. He does not challenge any
of the administrative judge’s substantive findings or her decision to affirm the
furlough, nor does he provide any explanation for his failure to attend the
prehearing conference or his failure to file a prehearing submission.
¶6 An administrative judge may impose sanctions as necessary to serve the
ends of justice. 5 C.F.R. § 1201.43. That authority includes the right to sanction
a party for failure to comply with an order. Id. Absent an abuse of discretion, the
Board will not reverse an administrative judge’s determination regarding
sanctions. Leseman v. Department of the Army, 122 M.S.P.R. 139, ¶ 6 (2014);
Davis v. Department of Commerce, 120 M.S.P.R. 34, ¶ 18 (2013). The abuse of
discretion standard is “a very high standard” and allows for “great deference.”
Pecard v. Department of Agriculture, 115 M.S.P.R. 31, ¶ 15 (2010) (citing
Lipscomb v. Department of Defense, 69 M.S.P.R. 484, 487 (1996)).
¶7 An appellant’s right to a hearing should not be denied as a sanction absent
extraordinary circumstances. Hart v. Department of Agriculture, 81 M.S.P.R.
329, ¶ 5 (1999); Stein-Verbit v. Department of Commerce, 72 M.S.P.R. 332, 337
(1996). The record reflects that the appellant failed to attend the prehearing
conference and failed to file a prehearing statement. Importantly, he did not
provide any explanation below or on review for his failure to attend the
prehearing conference or his failure to file a prehearing submission, nor did he
identify any evidence that he would have presented at the hearing that he was
unable to present in his close of record submission. We therefore conclude that
the administrative judge did not abuse her discretion in issuing the sanction in
this regard, especially given that she notified the appellant that this would happen
in her order. CAF, Tab 7; cf. Hart, 81 M.S.P.R. 329, ¶¶ 5-7 (the appellant’s
5
inadvertent failure to comply with the administrative judge’s order was not an
extraordinary circumstance that warranted the extreme sanction of the denial of a
hearing); Stein-Verbit, 72 M.S.P.R. at 338 (finding that the sanction of a canceled
hearing was inappropriate when the appellant “was too ill to participate” in the
first prehearing conference and she did not attend the second prehearing
conference because she did not receive the scheduling notice and was unable to
participate).
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
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 Se Petitioners and
6
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 your court
appeal, 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 court. The 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.