Weber v. MSPB

Case: 26-1564 Document: 21 Page: 1 Filed: 11/09/2026 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ WILLIAM D. WEBER, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________ 2026-1564 ______________________ Petition for review of the Merit Systems Protection Board in No. CH-0841-24-0244-I-1. ______________________ Decided: November 9, 2026 ______________________ WILLIAM D. WEBER, Unionville, IN, pro se. KAREY LAUREN HART, Office of the General Counsel, United States Merit Systems Protection Board, Washing- ton, DC, for respondent. Also represented by KATHERINE MICHELLE SMITH. ______________________ Before DYK, REYNA, and TARANTO, Circuit Judges. PER CURIAM. Case: 26-1564 Document: 21 Page: 2 Filed: 11/09/2026 2 WEBER v. MSPB The Office of Personnel Management (“OPM”) deter- mined that Mr. William D. Weber was ineligible for a de- ferred annuity under the Federal Employees’ Retirement System (“FERS”). Mr. Weber appealed the OPM decision to the Merit Systems Protection Board (“Board”), which dismissed his appeal for failure to prosecute. On review to this court, Mr. Weber does not challenge the Board’s fail- ure-to-prosecute determination. We accordingly affirm. BACKGROUND Mr. Weber is a former U.S. Postal Service employee. He was employed in civilian federal service for a total of about four years and nine months, after which he received disability-retirement benefits for about sixteen years and seven months. Mr. Weber’s entitlement to disability retire- ment ended in 2021, when OPM determined that he had earned income exceeding the restoration-of-earning-capac- ity threshold for terminating disability benefits. See 5 C.F.R. § 844.402(a). In 2023, Mr. Weber sought an annu- ity under FERS. The OPM denied benefits because Mr. Weber’s length of creditable civilian service fell below the five-year threshold for eligibility, see 5 U.S.C. § 8410, and his disability-retirement time could not count towards creditable service because the disability retirement bene- fits ended prior to Mr. Weber’s reaching 62 years of age, see 5 U.S.C. § 8452(b). Mr. Weber appealed the OPM’s denial of retirement benefits to the Board. After filing the initial appeal, how- ever, Mr. Weber did not respond to communications from the Board. On April 9, 2024, Mr. Weber failed to join a scheduled status conference with the administrative judge (“AJ”) by telephone. The AJ rescheduled the call to two weeks later, and warned Mr. Weber that his failure to ap- pear at the rescheduled conference without good cause could result in dismissal of his appeal. Mr. Weber missed the rescheduled call on April 23, 2024. The AJ then issued an order to show cause, requiring Mr. Weber to “respond to Case: 26-1564 Document: 21 Page: 3 Filed: 11/09/2026 WEBER v. MSPB 3 this order and explain his failure to appear at the status conferences.” App’x 31. 1 In the show-cause order, the AJ warned Mr. Weber that the appeal would be dismissed if he failed to respond by May 7, 2024. Mr. Weber again failed to respond, and on May 13, 2024, the AJ issued an initial decision dismissing the appeal with prejudice for failure to prosecute. Mr. Weber then petitioned for Board review, stating that he lacked understanding of the appeals process, was not aware that he was required to communicate, and did not expect telephone meetings to be scheduled by email. The Board denied the petition for review and adopted the initial decision (dismissing the appeal for failure to prose- cute) as the final decision of the Board. Mr. Weber timely petitioned for review at this court. 2 We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION On petition for review, we uphold a Board decision un- less it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence.” 5 U.S.C. § 7703(c). The dismissal of an appeal with prejudice for failure to prosecute is “the most severe sanction available” that is ap- propriate only where the appellant has shown “bad faith” or that he “intends to abandon his appeal.” Williamson 1 Citations to “App’x” refer to the Appendix filed by respondent in this case and attached to respondent’s infor- mal brief. Dkt. No. 15. 2 We earlier dismissed Mr. Weber’s petition for re- view for failure to prosecute, Dkt. No. 8, and subsequently reinstated the petition, Dkt. No. 11. Case: 26-1564 Document: 21 Page: 4 Filed: 11/09/2026 4 WEBER v. MSPB v. Merit Sys. Prot. Bd., 334 F.3d 1058, 1063 (Fed. Cir. 2003) (internal citations and quotations omitted). Generally, dis- missing an appeal for a single failure to respond is arbi- trary. Hamilton v. Merit Sys. Prot. Bd., 75 F.3d 639, 647 (Fed. Cir. 1996). A failure to respond a second time, how- ever, may warrant dismissal. Id. (citing Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc)). On petition for review, Mr. Weber does not argue that the Board improperly dismissed his appeal for failure to prosecute; 3 he challenges only the merits of his annuity- entitlement dispute, which the Board did not reach. He thus forfeited any challenge to the Board’s sole dispositive determination that he failed to prosecute his appeal. In any event, there is no dispute that Mr. Weber failed to join two ordered status conferences and to respond to an order to show cause. It was not arbitrary nor an abuse of discre- tion for the Board to conclude that this pattern of nonre- sponse evinced an intent to abandon the appeal and to dismiss the appeal. AFFIRMED COSTS No costs. 3 Mr. Weber’s discussion of the failure-to-prosecute holding in the memorandum in lieu of oral argument, Dkt. No. 19, is not sufficient to preserve the issue.