Robert J. Cain, Petitioner, v. Department of the Navy, Respondent, 923 F.2d 871 (Fed. Cir. 1990)

Cain appeals the order of the Merit Systems Protection Board (MSPB), Docket No. SF07528910742 (April 11, 1990), denying Cain's petition for review of the MSPB's initial decision, which dismissed Cain's appeal for failure to prosecute. Cain had filed with the MSPB an appeal which challenged Cain's removal by the Department of the Navy. We affirm.

OPINION

The MSPB can dismiss an appeal if the appellant fails to prosecute that appeal. 5 C.F.R. Sec. 1201.43(b); Ahlberg v. Dep't of Health & Human Services, 804 F.2d 1238, 1242 (Fed. Cir. 1986), cert. denied, 482 U.S. 913 (1987). Cain's failure to attend the prehearing conference, to contact the MSPB upon discovering that failure, and to respond to the Order to Show Cause supported the MSPB's dismissal for failure to prosecute.

Cain's petition for review of the dismissal needed to establish that " [n]ew and material evidence is available that, despite due diligence, was not available when the record closed," or that " [t]he decision ... is based on an erroneous interpretation of statute or regulation." 5 C.F.R. Sec. 1201.115(c). This Court can set aside the MSPB's decision denying Cain's petition if that decision was:

(1) unsupported by substantial evidence;

(2) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; or

(3) obtained without procedures required by law, rule, or regulation.

5 U.S.C. § 7703(c). The MSPB's denial of Cain's decision did not violate this standard and must therefore be upheld.