UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JERRY DASHIELDS, DOCKET NUMBER
Appellant, PH-3443-17-0110-I-1
v.
DEPARTMENT OF VETERANS DATE: February 1, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jerry Dashields, Baltimore, Maryland, pro se.
Shelly S. Glenn, Esquire, Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for failure to prosecute. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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 conc lude 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).
¶2 In his appeal, the appellant, who is a GS-0083-06 Police Officer with the
Department of Veterans Affairs in Baltimore, Maryland, initially appeared to be
challenging a reassignment without a loss of pay or grade. Initial Appeal File
(IAF), Tab 1 at 3, 5. The administrative judge issued a jurisdictional order, to
which the appellant did not respond. IAF, Tab 2 at 2-4. Thereafter, the agency
provided its file and asserted that no action had taken place, i.e., the agency had
merely proposed reassigning personnel. IAF, Tab 4 at 6. The administrative
judge issued a show cause order, which directed the appellant to show that the
Board had jurisdiction over his appeal and warned him that he might be
sanctioned by dismissal of his appeal for failure to prosecute i f he did not
respond. IAF, Tab 5. After the appellant failed to respond, the administrative
judge issued a second order to show cause. IAF, Tab 6. The appellant responded
with two brief pleadings that addressed the state of negotiations between his
bargaining unit and the agency over the proposed reassignment of age ncy Police
Officers. IAF, Tabs 9, 11. He also raised his belief that he was experiencing
retaliation as a whistleblower for having filed this appeal. IAF, Tab 9. The
administrative judge then issued an order directing the appellant to nonfrivolously
allege the Board’s jurisdiction over his purported individual right of action (IRA)
3
appeal. IAF, Tab 13. When the appellant did not respond, the administrative
judge issued a final order to show cause. IAF, Tab 14. The appellant again did
not respond, and the administrative judge issued the initial decision dis missing
the appeal for failure to prosecute. IAF, Tab 15, Initial Decision (ID).
¶3 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He has not specifically addressed the initial decision and instead
simply states that he has “filed a notice with Office of Special Counsel 1213
Investigation.” Id. at 3.
¶4 Although dismissal for failure to prosecute is a severe sanction,
administrative judges have discretion to impose such a sanction when necessary
to serve the ends of justice. Williams v. U.S. Postal Service, 116 M.S.P.R. 377,
¶ 7 (2011) (citing Chandler v. Department of the Navy, 87 M.S.P.R. 369, ¶ 6
(2000)); 5 C.F.R. §§ 1201.41(b)(11), .43(b). The sanction of dismissal may be
imposed 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. Williams, 116 M.S.P.R. 377, ¶ 7. The Board has upheld
imposing the sanction of dismissal when an appellant’s repeated failure to
respond to multiple Board orders reflects a failure to exercise basic due diligence.
Id., ¶ 9.
¶5 Here, the appellant failed to submit responsive pleadings to some orders and
did not respond to other orders at all. The administrative judge issued a total of
five orders pertaining to the appellant’s jurisdictional burden, three of which were
orders to show cause. IAF, Tabs 2, 5-6, 13-14. Two of the orders warned the
appellant that repeated failure to follow Board orders could result in the dismissal
of his appeal for failure to prosecute. IAF, Tabs 5, 14. The appellant submitted
two pleadings in response to the administrative judge’s initial orders . IAF,
Tabs 9, 11. Neither of these pleadings addressed why he believed the Board had
jurisdiction over his appeal of the reassignment. Instead, he di scussed the
negotiations between his bargaining unit and the agency over the proposed
4
reassignment of Police Officers within the agency’s Baltimore sites. Id.
Additionally, he alleged that the agency had retaliated against him for
whistleblowing after he had filed this appeal. IAF, Tab 9. The administrative
judge then issued a comprehensive jurisdictional order regarding the appellant’s
purported IRA appeal. IAF, Tab 13. When the appellant failed to submit any
response to that order, the administrative judge issued a final order to show cause,
once more warning him that failure to respond might result in dismissing his
appeal. IAF, Tab 14. The appellant again did not respond, and the administrative
judge dismissed the appeal for failure to prosecute. ID at 3. The administrative
judge’s action dismissing the appeal was appropriate because the appellant did
not respond to the Board’s last two orders, reflecting a failure to exercise basic
due diligence. See Williams, 116 M.S.P.R. 377, ¶¶ 9-12.
¶6 In the appellant’s brief petition for review, he references what may be an
ongoing investigation by the Office of Special Counsel (OSC) pursuant to
5 U.S.C. § 1213, which concerns the disclosure of information to OSC about
certain types of agency wrongdoing. PFR File, Tab 1 at 3. There is no
independent right to appeal to the Board following OSC’s investigation into such
a disclosure, see 5 U.S.C. § 1213, and we find the appellant’s assertion to be
immaterial to the decision whether to dismiss this appeal for failure to prosecute.
Even assuming that the matter pending with OSC is not a disclosure of
information under 5 U.S.C. § 1213 but a complaint of reprisal for whistleblowing
disclosures or other protected activity as described in 5 U.S.C. § 1214(a)(3), we
find no basis to disturb the initial decision. The administrative judge’s
January 30, 2017 order fully explained how the appellant could establish
jurisdiction over such reprisal claims as an IRA appeal under 5 U.S.C. § 1221.
IAF, Tab 13. The appellant’s brief assertion on review fails to explain his failure
to respond to the administrative judge’s orders or otherwise show that this appeal
should not be dismissed for failure to prosecute.
5
NOTICE OF APPEAL RIGHTS 2
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 choice s 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).
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:
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.
6
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. ____ , 137 S. Ct. 1975 (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 race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
7
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
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
8
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
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
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
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.