Curtis v. Merit Systems Protection Board

26 F. App'x 974

• Court: Court of Appeals for the Federal Circuit
• Decided: February 6, 2002
• Docket: No. 01-3286
• Status: Published

Opinion

PER CURIAM.

Don C. Curtis appeals the decision of the Merit Systems Protection Board, No. DA0752000600-I-1, 2001 WL 455856 (April 16, 2001), which became final on April 16, 2001, and dismissed his appeal with prejudice for failure to prosecute. We affirm.

We must affirm the decision of the board unless we find that it is: “(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) (1994). Such a finding is not warranted here. An administrative judge has authority under the board’s regulations to dismiss an appeal for failure to prosecute. See 5 C.F.R. § 1201.43(b) (2001). We have held that a dismissal may result from an appellant’s repeated failure to respond to board orders. See Ahlberg v. Dep’t of Health and Human Servs., 804 F.2d 1238, 1242-43 (Fed.Cir.1986). Moreover, 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)).

Curtis repeatedly ignored the administrative judge’s orders, all of which warned that failure to comply could result in dismissal of his appeal. He has provided no explanation for not contacting the board in response to its orders and has provided no justification for his repeated lack of compliance. Curtis offers that he was unable to participate in a conference call, but did not provide any explanation as to why he did not call to reschedule. The board’s decision to dismiss Curtis’s appeal with prejudice for failure to prosecute was not an abuse of discretion.