In Davis v. Dept. of Commerce, 2013 MSPB 56 (July 24, 2013), the MSPB took the unusual step of dismissing an appeal of a removal due to the employee’s failure to comply with the administrative judge’s prehearing orders and for exhibiting bad faith in the processing of the appeal the day of the scheduled hearing.
The issues in this case first arose when Davis failed to timely submit her proffered exhibits prior to the prehearing conference as required, and then, for the first time during the prehearing conference, she indicated she was raising multiple affirmative defenses of discrimination.Davis’s non-attorney representative also advised the judge that Davis was having medical issues which could render her unable to participate in the hearing.The judge ordered the representative to provide a status update as to Davis’s medical condition so that the hearing could be postponed if necessary. The judge further ordered Davis to submit "nonfrivolous allegations of fact" in order to have a hearing on her discrimination affirmative defenses.Davis objected to the judge’s order.
The agency moved for sanctions against Davis based on Davis’ contumacious behavior, failing to respond to requests for admissions and failing to comply with several of the judge’s orders.Davis’s representative responded that Davis had medical conditions which left her unable to assist her representative.As the hearing date was approaching, a Board representative repeatedly telephoned Davis’s representative to get a medical status update; the representative never returned the calls and did not provide the written status update as ordered.The judge canceled the hearing.Ultimately, the judge dismissed the case without prejudice due to Davis’s medical condition.Rulings on the agency’s sanctions motions were deferred.
The appeal was refiled and Davis was given another opportunity to comply with the judge’s orders to submit her statement of nonfrivolous facts to support her affirmative defenses.Again, Davis refused and challenged the judge’s authority to issue the order.The judge granted the agency’s motion for sanctions striking Davis’s affirmative defense claims for her failure to comply with repeated orders to support those claims.On the day of the hearing, Davis made various motions for reconsideration of the judge’s rulings.The judge ordered that one such motion be put in writing, and dismissed the others as untimely.
In response, Davis’s representative announced that Davis was withdrawing her hearing request and demanded a written decision on the record.Davis’s representative replied that he was not moving forward with the hearing and reiterated his demand for a decision on the written record.After a brief recess, the agency moved that Davis’s appeal be dismissed with prejudice.In a written decision that followed, the administrative judge dismissed the appeal "in the interests of justice" due to Davis’s repeated refusal to comply with his orders and for refusal to prosecute/defend her appeal at the hearing without good cause and in bad faith.Davis filed a petition for review with the Board arguing the judge abused his discretion and that the judge’s errors had prevented her from "any opportunity to present her case."
A unanimous Board sustained the dismissal with prejudice.The Board noted that its regulations do not set out guidelines for exercising the authority to dismiss with prejudice as a sanction, but that in prior cases the Board had found dismissal appropriate when a party failed to exercise due diligence in complying with Board orders or where party has exhibited negligence or bad faith in its efforts to comply.In this case, the Board agreed with the judge’s determinations that Davis, through her representative, showed bad faith by repeatedly ignoring the judge’s orders.Additionally, the Board found Davis exhibited bad faith when she pursued reconsideration of long-decided motions the morning of the hearing and then withdrew her hearing request on the basis of "the foreseeable result of this gambit."The Board found that Davis’s motions should have been made long before the parties went to the expense of preparing for and appearing at the hearing.Under the "totality of the circumstances," the Board held that the administrative judge’s dismissal of the appeal for failure to prosecute was within his discretionary authority.
What makes this case noteworthy is that outright dismissal of an appeal –the most severe sanction that Board can and will impose –is generally inappropriate.The facts of this case demonstrate that an appellant’s repeated failure to comply with a judge’s orders, and then forcing the Board and the agency to prepare for a hearing, for which the appellant intends not to participate, will result in this severest of sanctions.
* This information is provided by the attorneys at Passman& Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.
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