Eric L. Floyd v. Department of Defense ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC L. FLOYD, 1 DOCKET NUMBER
Appellant, CH-0752-13-2109-I-1
v.
DEPARTMENT OF DEFENSE, DATE: June 22, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 2
Eric L. Floyd, Indianapolis, Indiana, pro se.
Benjamin B. Hamlow, Indianapolis, Indiana, 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 with prejudice his furlough appeal for failure to prosecute. Generally,
we grant petitions such as this one only when: the initial decision contains
1
Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation.
DFAS-I NDY-JFL ORGS v. Department of Defense, Docket No. CH-0752-14-0707-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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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erroneous findings of material fact; the initial 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant filed a Board appeal, challenging the agency’s decision to
furlough him. Initial Appeal File (IAF), Tab 1. The appellant’s appeal was
consolidated with the appeals of similarly situated employees. See DFAS-INDY-
JFL ORGS v. Department of Defense, Docket No. CH-0752-14-0707-I-1,
Consolidated Appeal File, Tab 1. The administrative judge issued an initial
decision that dismissed the appellant’s appeal with prejudice for failure to
prosecute. IAF, Tab 9, Initial Decision (ID). In concluding that the appellant
failed to exercise basic due diligence in prosecuting his appeal, the administrative
judge noted that the appellant did not appear for two telephonic status
conferences or the prehearing conference, he failed to submit a prehearing
submission, he failed to appear for the hearing, and he failed to respond to her
Notice of Intent to Dismiss for Failure to Prosecute Appeal. See ID at 2-3. The
appellant filed a petition for review, and the agency filed a response. Petition for
Review (PFR) File, Tabs 1, 3.
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¶3 The appellant did not make any arguments on review. See PFR File, Tab 1.
In fact, the appellant circled “NO” to questions about whether he was denied any
procedures during his Board appeal to which he was entitled, whether he had any
documents or evidence that were not filed before the record closed, whether the
initial decision incorrectly decided any facts or failed to consider any facts, and
whether the initial decision applied the wrong law or applied the law incorrectly.
See id.
¶4 A petition for review must contain sufficient specificity to enable the Board
to ascertain whether there is a serious evidentiary challenge justifying a complete
review of the record. Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92
(1992). The appellant’s petition for review does not meet the criteria for review
under 5 C.F.R. § 1201.115. See Weaver v. Department of the Navy, 2 M.S.P.R.
129, 133 (1980) (before the Board will undertake a complete review of the record,
the petitioning party must explain why the challenged factual determination is
incorrect, and identify the specific evidence in the record which demonstrates the
error). In any event, we discern no error with the administrative judge’s
conclusion that the appellant failed to exercise basic due diligence in prosecuting
his appeal. See ID. We therefore affirm her decision to dismiss the appeal for
failure to prosecute. See Leseman v. Department of the Army, 122 M.S.P.R. 139,
¶ 7 (2015).
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
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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
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 appeal to
the 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 Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
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FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.