NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MARITA C. MCDAVIS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3132
__________________________
Petition for review of the Merit Systems Protection
Board in MSPB Docket No. CH0752110065-I-1.
____________________________
Decided: January 25, 2012
____________________________
MARITA C. MCDAVIS, of Detroit, Michigan, pro se.
SARA B. REARDEN, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
Before LOURIE, DYK and REYNA, Circuit Judges.
MCDAVIS v. MSPB 2
PER CURIAM.
Marita McDavis seeks review of the final decision of
the Merit Systems Protection Board (“the Board”) dis-
missing her appeal for failure to prosecute. See McDavis
v. Social Security Admin., No. CH0752110065-I-1
(M.S.P.B. Mar. 23, 2011) (“Final Order”); McDavis v.
Social Security Admin., No. CH0752110065-I-1 (M.S.P.B.
Jan. 24, 2011) (“Initial Decision”). Because the Board did
not abuse its discretion, we affirm.
BACKGROUND
Marita McDavis was employed as a Paralegal Super-
visor within the Social Security Administration (“SSA”).
On October 24, 2010, the SSA demoted McDavis to a
Paralegal based on two charges: (1) that McDavis violated
5 U.S.C. § 3310 by interviewing and recommending a
relative for an SSA position; and (2) that McDavis dis-
played a lack of candor when questioned about the events
leading up to the first charge.
McDavis appealed the demotion to the Board, and the
administrative judge (“AJ”) assigned to the appeal found
that McDavis failed to comply with four consecutive
Board orders and dismissed her appeal for failure to
prosecute. At the start of the proceeding, the AJ issued
an Acknowledgement Order in October, 2010, requiring
McDavis to exchange discovery with SSA. Initial Deci-
sion, at 2. Shortly thereafter, the AJ issued an order
directing McDavis to participate in a telephonic prehear-
ing conference on January 10, 2011, and to submit pre-
hearing submissions. Id. McDavis failed to participate in
the prehearing conference and failed to file her prehear-
ing submissions. Id. The AJ then issued an order re-
scheduling the prehearing conference and extending the
date for McDavis to submit prehearing submissions and
the factual basis for her affirmative defenses. Id. In the
3 MCDAVIS v. MSPB
order, the AJ advised McDavis that failure to comply with
the order may result in sanctions including the dismissal
of her appeal. Id.
McDavis again failed to participate in the prehearing
conference and failed to submit any of the required docu-
ments. Id. In response, the AJ issued an order providing
McDavis a final opportunity to submit her documents and
participate in the prehearing conference. Id. The order
warned McDavis that the AJ intended to dismiss her
appeal if she did not comply with the order. Id.
McDavis failed to participate in the prehearing con-
ference and failed to submit any of the required docu-
ments. Id. The AJ then dismissed McDavis’s appeal for
failure to prosecute, finding that she repeatedly failed to
comply with multiple Board orders, rendering it “impossi-
ble to conduct discussions regarding matters related to
this appeal.” Id. at 3.
McDavis petitioned for review by the full Board,
which affirmed the AJ’s dismissal and concluded that
McDavis failed to establish that she exercised due dili-
gence in prosecuting her appeal. Final Order, at 4.
McDavis appealed to this court, and we have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion if it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); see also Briggs
v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir.
2003).
MCDAVIS v. MSPB 4
While an extreme sanction, Williamson v. Met Sys.
Prot. Bd., 334 F.3d 1058, 1063 (Fed. Cir. 2003), Board
regulations expressly authorize an AJ to dismiss an
appeal with prejudice if the appellant fails to prosecute
the appeal, 5 C.F.R. § 1201.43(b). We have recognized
that failure to respond to the Board’s orders may justify
dismissal. See Ahlberg v. Dep't of Health and Human
Servs., 804 F.2d 1238, 1242–43 (Fed. Cir. 1986). More-
over, sanctions are within the discretion of the Board and
will not be reversed unless there is a clear and harmful
abuse of discretion. See Baker v. Dep’t of Health and
Human Servs., 912 F.2d 1448, 1457 (Fed. Cir. 1990)
(citing Curtin v. Office of Pers. Mgmt., 846 F.2d 1373,
1378 (Fed. Cir. 1988)).
On appeal, McDavis’s argues that the Board decision
should be reversed because she did not timely receive
orders from the Board. We disagree. The record indicates
that McDavis provided the Board’s e-Appeal online sys-
tem with an incorrect email address as well as a post
office box address. See Final Order, at 2. McDavis’s
submissions on appeal indicate that she was aware that
the Board was providing notice of new documents on e-
Appeal online to the wrong email address by December
28, 2010, weeks prior to the first telephonic prehearing
conference. These submissions are consistent with the
Board’s finding that, over one month prior to the dis-
missal of her case, an SSA representative informed
McDavis that case-related notices were likely being sent
to the wrong email address, that McDavis should update
her email address with the Board’s e-Appeal online sys-
tem, and that she could still access all case-related mate-
rials through e-Appeal online. Id. at 3. McDavis was
aware that she was responsible for accessing e-Appeal
online to inform herself about her case. Before the Board,
5 MCDAVIS v. MSPB
McDavis only provided evidence that she had difficulty
accessing the site on one occasion. 1
At bottom, McDavis failed to comply with multiple
Board orders. The AJ provided her three opportunities to
participate in the proceedings and twice warned her that
her failure to participate would be grounds to dismiss her
case for failure to prosecute. While we are mindful of the
severity of the sanction, on this record, we cannot hold it
that it was an abuse of discretion to dismiss McDavis’s
appeal for failure to prosecute.
We have considered McDavis’s remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, the Board’s dismissal of McDavis’s appeal is
AFFIRMED
COSTS
No costs.
1 On appeal, McDavis provides additional evidence
that she had difficulty accessing e-Appeal online, but this
evidence was not before the Board, and we are obliged to
review this case based on the record below.