Keith Bergstrom v. Department of Agriculture

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2026 MSPB 9 Docket Nos. PH-0752-25-0048-I-1 PH-3443-25-0200-I-1 PH-1221-25-0230-W-1 Keith Bergstrom, Appellant, v. Department of Agriculture, Agency. October 7, 2026 Keith Bergstrom , San Antonio, Texas, pro se. Marcus A. Mitchell , Esquire, Albuquerque, New Mexico, for the agency. BEFORE James J. Woodruff II, Chairman Henry J. Kerner, Vice Chairman OPINION AND ORDER ¶1 The appellant has filed petitions for review of the initial decisions in Bergstrom v. Department of Agriculture, MSPB Docket No. PH-0752-25-0048-I-1 (Bergstrom I), which dismissed his appeal without prejudice, and Bergstrom v. Department of Agriculture, MSPB Docket Nos. PH-3443-25-0200-I-1 and PH-1221-25-0230-W-1 (Bergstrom II and III), which dismissed his appeals with  2 prejudice. For the reasons discussed below, we JOIN 1 the appeals, DENY the petitions for review, VACATE the initial decisions, and DISMISS WITH PREJUDICE Bergstrom I, II, and III as a sanction under 5 C.F.R. §§ 1201.43 and 1201.103 and the Board’s Policy on Prohibited Conduct. BACKGROUND ¶2 On October 18, 2024, the appellant filed a Board appeal challenging the agency’s decision to remove him for medical inability to perform the duties of his position. Bergstrom I, Initial Appeal File (0048 IAF), Tab 1. In the following days, the appellant sent multiple emails to the Board, including an email on October 24, 2024, to the administrative judge that contained profanities. 0048 IAF, Tabs 3-4. In response, on October 24, 2024, the administrative judge ordered the appellant to “cease sending e-mails to the Administrative Judge in this appeal, and to refrain from using offensive and unprofessional language in his communications with the [Board].” Id. On October 25, 2024, the appellant twice violated that order by sending the administrative judge two emails containing profanity, prompting the administrative judge to issue a second order later that day. 0048 IAF, Tab 4. The administrative judge again ordered the appellant to stop emailing him and to refrain from using offensive and unprofessional language in communications with any Board employee. Id. The administrative judge also warned the appellant that “further violations of Orders issued by the Board may result in the imposition of sanctions, up to and including the dismissal of his appeal.” Id. On October 29, 2024, the administrative judge issued a notice documenting the appellant’s language in a pleading and cautioning him against engaging in further contumacious conduct. 0048 IAF, Tabs 7, 9. 1 Joinder of two or more appeals filed by the same appellant is appropriate when doing so would expedite case processing and would not adversely affect the parties’ interests. See Doe v. Pension Benefit Guaranty Corporation, 117 M.S.P.R. 579, ¶ 23 (2012); 5 C.F.R. § 1201.36(a)(2), (b). We find that these criteria are satisfied here and therefore join Bergstrom II and III, which were already joined, with Bergstrom I.  3 ¶3 In addition to the warnings from the administrative judge, the Acting Chief Administrative Judge of the Northeastern Regional Office also issued the appellant a letter, dated January 2, 2025, responding to another email from the appellant. 0048 IAF, Tab 43. The Acting Chief Administrative Judge advised him in relevant part that a judge may exclude or limit the participation of a representative or other person in the case for contumacious conduct or conduct prejudicial to the administration of justice, that no party is permitted to use the Board’s litigation process as a venue for spouting abusive or offensive language, and that an administrative judge is authorized to impose sanctions against an individual for repeatedly engaging in such behavior as necessary to serve the ends of justice. 2 Id. The next day, the appellant sent five emails containing profanity, threats, and derogatory statements about individuals of certain races and sexual orientations to employees of his former agency and the Acting Chief Administrative Judge of the Northeastern Regional Office. 3 0048 IAF, Tabs 44-48; Bergstrom II, Initial Appeal File (0200 IAF), Tab 16 at 16, 20-33. On January 7, 2025, the administrative judge ordered the appellant to show good cause why he 2 In the letter, the Acting Chief Administrative Judge correctly quoted language from 5 C.F.R. § 1201.43(d) but incorrectly cited to 5 C.F.R. § 1201.14(d). 0048 IAF, Tab 43 at 1. This error was harmless, because the letter included the relevant language from the correct regulation and placed the appellant on notice of the possibility of sanctions for his conduct. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). 3 Examples of the language the appellant used in his emails include: (1) “[The agency representative’s supervisor] you’re fucking black too aren’t you you fucking f****ts?”; (2) “Fuck both of you fucking agency reps fuck you punk pile bitch ass ch***y ass fucking judge fuck the forest service fuck the USDA. I am going to fuck all of you”; (3) “You won’t bring me a fucking crazy person you fucking bitch you fucking close this you fucking hurt”; (4) “I said pieces of paper willing to give my life and you fucking called me for 25% of goddamn country. I don’t even wanna fucking tell you what I fucking you piece of shit”; and (5) “You’ll find me hanging in the goddamn national forest. How’s that for fucking barring Fuck you[.]” 0048 IAF, Tabs 44-48 (spelling, grammar, and punctuation as in original, except when noted). The administrative judge added these and other related email communications to the Bergstrom II initial appeal record. Bergstrom II, Initial Appeal File (0200 IAF), Tab 16; see also 0200 IAF, Tab 13.  4 should not dismiss Bergstrom I for the appellant’s emails containing language violating the previous orders and the Board’s Policy on Prohibited Conduct. 4 0048 IAF, Tab 49. The appellant filed a response titled, “You already said you do not have jurisdiction over medical removal rescinded 2 weeks ago dummy[.]” 0048 IAF, Tab 50. He then filed another response expressing remorse and acknowledging that his behavior was unacceptable. 0048 IAF, Tab 51. The administrative judge noted that the appellant also sent a personal apology to the Acting Chief Administrative Judge of the Northeastern Regional Office for his behavior. 0048 IAF, Tab 56, Initial Decision (0048 ID) at 4. ¶4 On January 22, 2025, the administrative judge dismissed Bergstrom I without prejudice for 90 days, subject to automatic refiling. 0048 ID at 1. The administrative judge determined that, although the appellant’s refusal to comply with multiple Board orders and the Board’s Policy on Prohibited Conduct would normally warrant dismissal of the appeal with prejudice, imposition of such a severe sanction was unwarranted in light of the appellant’s expressions of remorse and his recognition of the gravity of his unacceptable conduct; the nature of his disability, which appeared to be a contributing factor in his violations of the Board’s orders; his ongoing efforts to treat his disability; and his desire to obtain legal representation. 0048 ID at 3-6. The administrative judge found, instead, that dismissal without prejudice would best serve the interests of justice because the appellant could benefit from additional time to receive further treatment for his disability and to obtain legal representation. 0048 ID at 6. However, that same day, the appellant filed a petition for review and a supplement to the petition for review in Bergstrom I. Bergstrom I, Petition for Review (0048 PFR) File, Tabs 1-2. 4 The administrative judge provided the appellant with a link to the Board’s Policy on Prohibited Conduct (effective May 2024), which is available on MSPB’s public website, https://www.mspb.gov/appeals/files/Policy_on_Prohibited_Conduct_5_2_2024.pdf .  5 ¶5 While Bergstrom I was pending on initial appeal, the Northeastern Regional Office docketed Bergstrom II on January 7, 2025. Within a few days after the administrative judge issued the January 22, 2025 initial decision in Bergstrom I, the appellant sent multiple emails containing profanity and insults to Board employees, including the Acting Chief Administrative Judge of the Northeastern Regional Office and the Regional Director/Chief Administrative Judge of the Washington Regional Office. 5 0200 IAF, Tabs 13, 16. On January 28, 2025, he filed a pleading in Bergstrom II containing profanity and insults. 0200 IAF, Tab 10. He also filed a pleading titled, “Dumb Judge” a few days later. 0200 IAF, Tab 17. During this time, the Northeastern Regional Office docketed Bergstrom III. 6 ¶6 On January 30, 2025, the administrative judge issued an initial decision joining Bergstrom II and III and dismissing the appeals with prejudice. 0200 IAF, Tab 18, Initial Decision (0200 ID) at 1; 0230 IAF, Tab 2, Initial Decision (0230 ID) at 1. 7 He observed that he had issued multiple orders instructing the appellant to refrain from using offensive and unprofessional 5 On January 24, 2025, the Acting Chief Administrative Judge of the Northeastern Regional Office sent the appellant an email responding to an email the appellant sent to the Northeastern Regional Office on January 23, 2025, and twelve emails he sent on January 24, 2025, to again apprise him that his conduct and/or communications violated the Board’s Policy on Prohibited Conduct. 0200 IAF, Tab 13, Tab 16 at 3-15. The Acting Chief Administrative Judge provided a link to the Policy in the email and attached a copy of the Policy for the appellant’s reference. 0200 IAF, Tab 13 at 2-3. The administrative judge added many of these communications to the record in Bergstrom II. 0200 IAF, Tab 13, Tab 16 at 3-15. The administrative judge also moved two pleadings that the appellant had filed electronically by e-Appeal on January 22, 2025, in Bergstrom I to the initial appeal record in Bergstrom II, after the administrative judge had issued the initial decision in Bergstrom I and that appeal was closed before the regional office. 0200 IAF, Tabs 14-15. 6 While Bergstrom I, II, and III were pending before the administrative judge and the Board on review, the appellant continued to file initial appeals that the regional office rejected as duplicative. 0200 IAF, Tab 1, Tab 18, Initial Decision at 5; 0230 IAF, Tab 3. 7 Because the administrative judge joined Bergstrom II and III and the initial decisions are identical, we will hereinafter refer to them jointly as the “0200 and 0230 ID.”  6 language in his communications with the Board; he had granted the appellant a second chance by dismissing Bergstrom I without prejudice; and the Acting Chief Administrative Judge of the Northeastern Regional Office had warned the appellant that his communications were inappropriate and violated the Board’s Policy on Prohibited Conduct. 0200 and 0230 ID at 6-7. The appellant continued his inappropriate and willful misconduct despite these warnings, and the administrative judge therefore concluded that the severe sanction of dismissal with prejudice was warranted. 0200 and 0230 ID at 7. The appellant then filed petitions for review of the initial decision in Bergstrom II and III. Bergstrom II and III, Petition for Review (0200 and 0230 PFR) File, Tab 1. 8 ¶7 The appellant’s petitions for review in all three of his appeals contain arguments and evidence related to the merits of the underlying appeals. 9 0048 PFR File, Tab 1 at 3, Tab 2 at 4-6; 0200 and 0230 PFR File, Tab 1 at 5-8, 9-133. In his petitions for review in Bergstrom II and III, the appellant argues that the administrative judge erroneously assumed that his appeals were refilings of previous claims. 0200 and 0230 PFR File, Tab 1 at 4. He acknowledges that he violated the administrative judge’s orders in Bergstrom I, but he asserts that he was not told that those orders were applicable to Bergstrom II and III; thus, the administrative judge should not have “closed” the joined appeals based on his emails and pleadings containing foul language in Bergstrom I. Id. He also asserts that the administrative judge’s orders were contradictory to the Board’s instructions to pro se litigants to email the MSPB mailbox with procedural questions. Id. ¶8 On petition for review, the Office of the Clerk of the Board compiled a representative sample of the emails the appellant had sent to Board employees from 8 As with the initial decisions, we will refer to the identical petition for review files in Bergstrom II and III jointly, as the “0200 and 0230 PFR File.” 9 We need not consider the appellant’s arguments relating to the merits of the underlying appeals in light of our decision to dismiss the appeals as a sanction for his contumacious conduct.  7 December 26, 2024, to September 17, 2025, and added them to the petition for review records in Bergstrom I, II, and III. 0048 PFR File, Tab 12-2; 0200 and 0230 PFR File, Tab 16-2. During that time, he sent over 100 emails, many of which contained abusive, offensive, profane, or inappropriate language, to Board Headquarters employees, including Board members; the administrative judge assigned to adjudicate his appeals; and other regional offices, thereby prompting the Board to contact law enforcement. 0048 PFR File, Tabs 12-1, 12-2; 0200 and 0230 PFR File, Tabs 16-1, 16-2. ¶9 By letter dated February 27, 2025, the Clerk of the Board and the Director of the Office of Regional Operations (ORO) jointly warned the appellant that his communications with multiple Board employees, including the Chairman of the Board, the Office of the Clerk of the Board, the Office of Regional Operations, the Northeastern Regional Office, and the Washington Regional Office, contained numerous documented instances of abusive language and/or profanity directed at MSPB staff. 0048 PFR File, Tab 12-1 at 8 -9; 0200 and 0230 PFR File, Tab 16-1 at 8-9. The letter included a link to the Board’s Policy on Prohibited Conduct and warned the appellant that, if he did not cease such conduct, the Board may impose sanctions as set forth in 5 C.F.R. § 1201.43 or, as a last resort, terminate his appeals with prejudice. 0048 PFR File, Tab 12-1 at 8; 0200 and 0230 PFR File, Tab 16-1 at 8. ¶10 After receiving this warning letter, the appellant continued his excessive email communications with Board employees, impeding them from performing their duties. Following the issuance of the February 27, 2025 warning letter, he sent nearly 75 emails to Board employees, including emails to Board members during the adjudication of his appeals. 0048 PFR File, Tabs 12-1, 12-2; 0200 and 0230 PFR File, Tabs 16-1, 16-2. When the Board implemented measures to manage his email communications, he used different email addresses to circumvent those efforts. 0048 PFR File, Tabs 12-1 at 3; 0200 and 0230 PFR File, Tab 16-1 at 3.  8 ¶11 Additionally, the appellant sent profane emails to the agency representative during the petition for review process. The agency representative filed motions to dismiss the appellant’s petitions for review in Bergstrom I, II, and III with prejudice due to his repeated violations of the Board’s Policy on Prohibited Conduct. 0048 PFR File, Tab 7; 0200 and 0230 PFR File, Tab 7. The agency representative noted that, after she submitted the agency’s response to the petition for review, the appellant sent her inappropriate and threatening emails and even attempted to track her down by searching for her information online. 10 0048 PFR File, Tab 7 at 4-6; 0200 and 0230 PFR File, Tab 7 at 4-6. The agency representative attached copies of the emails, which the appellant did not deny sending, and notified the Board that she would no longer be representing the agency in the appellant’s matters. 0048 PFR File, Tab 7 at 7-15, Tab 10 at 4; 0200 and 0230 PFR File, Tab 7 at 7-15, Tab 12 at 4. She also obtained a temporary restraining order against the appellant. 0048 PFR File, Tab 9 at 3; 0200 and 0230 PFR File, Tab 10 at 3, Tab 11 at 3. The appellant’s replies to the agency’s response and motion to dismiss contain yet more profanity and insults toward the agency representative. 11 0048 PFR File, Tab 8 at 3-4; 0200 and 0230 PFR File, Tab 8 at 3-4, Tab 9 at 3-4. Furthermore, his replies contain derogatory language directed towards other employees of his former agency and the Board’s administrative judges. 0048 PFR File, Tab 8 at 3-4; 0200 and 0230 PFR File, Tab 8 at 3-4, Tab 9 at 3-4. 10 The appellant’s emails to the agency representative include the following statements: (1) “You fucking C*** you motherfucking C*** I fucking hate you”; (2) “[Y]ou’re making me laugh you dirty fucking whore you’re fucking making me laugh”; (3) “[G]o ahead and submit my pleadings in my fucking instant appeal. You piece of shit what’s a fucking instant appeal you old fucking whore bag”; (4) “I fucking dare you to tell the MSPB I’m lying again and you’ll do it because you don’t think I have to fucking boss I fucking dare you C*** I fucking dare you”; and (5) “You need to get your fucking skank in line [the agency representative’s supervisor]. She’s a real fucking piece of shit.” 0048 PFR File, Tab 7 at 7-8, 10-12; 0200 and 0230 PFR File, Tab 7 at 7-8, 10-12 (grammar, capitalization, and punctuation as in original, except when noted).  9 ¶12 Due to the appellant’s continued actions in violation of the Board’s Policy on Prohibited Conduct, the Clerk of the Board issued the appellant a sanctions letter, dated September 23, 2025, imposing a 1-year ban on email communications with the Board. 0048 PFR File, Tab 12 -1 at 1-5; 0200 and 0230 PFR File, Tab 16-1 at 1-5. The letter warned the appellant that, if he continued to violate the Policy in his interactions with the Board, including in his off-the-record communications, the Board may ban him from accessing its e-Appeal system or impose other sanctions. 0048 PFR File, Tab 12-1 at 4; 0200 and 0230 PFR File, Tab 16-1 at 4. ¶13 On September 23, 2025, the Clerk of the Board issued an order providing the appellant with an opportunity to respond to the sanctions letter and to object to the Board’s consideration of his email communications. 0048 PFR File, Tab 12 at 3; 0200 and 0230 PFR File, Tab 16 at 3. The order also indicated that the appellant’s emails reflected that he may have engaged in prohibited ex parte communications with decision-making officials concerning the merits of his appeals. 0048 PFR File, Tab 12 at 2; 0200 and 0230 PFR File, Tab 16 at 2. The appellant did not respond to the September 23, 2025 order. ANALYSIS The appellant’s conduct warrants the dismissal of Bergstrom I with prejudice. ¶14 An administrative judge or the Board may impose sanctions upon the parties as necessary to serve the ends of justice. 5 U.S.C. § 1204(a)(2), (g) (providing that the Board shall order Federal agencies and employees to comply 11 In his reply, the appellant asserts the following: (1) “You goddamn right I swear her she’s a goddamn liar”; (2) “Verbal assault is not a real thing find out anywhere any anywhere else verbal so there’s nothing there is harassment and then there is nothing if it’s not harassment then it’s nothing. Verbal assault is not a goddamn thing”; and (3) “[The agency representative] will tell you I made racist remarks in my emails and all I did was make a joke from South Park a wheel of Fortune joke that clearly she’s too old and fucking stupid to understand.” 0048 PFR File, Tab 8 at 3-4; 0200 and 0230 PFR File, Tab 8 at 3-4, Tab 9 at 3-4 (grammar, capitalization, and punctuation as in original, except when noted).  10 with its orders and decisions, and that the Board may delegate its administrative functions to any Board employee); 5 C.F.R. § 1201.43. 12 This authority covers situations in which a party engages in contumacious conduct or conduct prejudicial to the administration of justice. 5 C.F.R. § 1201.43(d). Before imposing a sanction, the administrative judge or the Board shall provide appropriate prior warning, allow a response to the actual or proposed sanction when feasible, and document the reasons for any resulting sanction in the record. 5 C.F.R. § 1201.43. The sanction of dismissal with prejudice is a severe sanction, and the Board has held that it should be imposed only when: (1) a party has failed to exercise due diligence in complying with Board orders; or (2) a party has exhibited negligence or bad faith in complying with Board orders. Morris v. Department of the Navy, 123 M.S.P.R. 662, ¶ 12 (2016); Davis v. Department of Commerce, 120 M.S.P.R. 34, ¶ 18 (2013). Further, the Board has held that it may dismiss a petition for review with prejudice for failure to comply with its regulations or orders, or for contumacious conduct. Morris, 123 M.S.P.R. 662, ¶¶ 13-17 & n.10 (dismissing a petition for review with prejudice because the appellant repeatedly failed to comply with the Board’s regulations and directions by the Office of the Clerk of the Board, and for his contumacious misogynistic invective towards the Board’s female staff). ¶15 As described in detail above, in Bergstrom I, the administrative judge repeatedly ordered the appellant to refrain from using offensive and unprofessional language in communications with the Board and notified the appellant that violations of these orders could result in sanctions, including dismissal of his appeal. 0048 IAF, Tabs 3-4, 9. Additionally, the Acting Chief Administrative Judge of the Northeastern Regional Office informed him that he could be excluded from participation in the case for contumacious conduct or conduct prejudicial to the administration of justice, that abusive or offensive language is not permitted, 12 Although 5 C.F.R. § 1201.43 is phrased in terms of sanctions an administrative judge may order, the Board itself is empowered to issue orders, and adjudication authority is delegated from the Board to its administrative judges. See 5 U.S.C. §§ 1204(a)(2), (g), 7701(b)(1).  11 and that an administrative judge may impose sanctions against an individual for repeatedly engaging in such behavior as necessary to serve the ends of justice. 13 0048 IAF, Tab 43. When the appellant repeatedly ignored these orders and directions, the administrative judge issued an order to show cause why he should not dismiss the appeal for violating those orders and the Board’s Policy on Prohibited Conduct, a link to which he provided therein. 0048 IAF, Tab 49. ¶16 The Board’s Policy on Prohibited Conduct provides that the Board “is committed to promoting a safe and productive work environment for its personnel and the people it serves so that it may carry out its mission to protect the merit system principles and promote an effective Federal workforce free of prohibited personnel practices.” 0048 PFR File, Tab 12-1 at 6; 0200 and 0230 PFR File, Tab 16-1 at 6. The Policy recognizes that, “[w]hile parties to an appeal . . . may disagree strongly with each other and/or MSPB personnel . . . , no individual is permitted to abuse other parties, witnesses, or Board personnel.” 0048 PFR File, Tab 12-1 at 6; 0200 and 0230 PFR File, Tab 16-1 at 6. The Policy identifies prohibited conduct as including: (1) “verbally assaulting parties, witnesses, or Board personnel”; (2) “[h]arming or threatening harm . . . to parties, witnesses, Board personnel, or Board offices”; (3) “[e]ngaging in harassing, offensive, disruptive, or contumacious conduct, including, but not limited to, the use of profanity or excessively persistent telephone, email, fax, or in-person communications, that impedes Board personnel from performing their duties”; and (4) “[u]sing disparaging language on protected bases, including race, color, religion, sex (including sexual orientation and pregnancy), national origin, age, disability, marital status, and/or political affiliation.” 0048 PFR File, Tab 12-1 at 6; 0200 and 0230 PFR File, Tab 16-1 at 6. The Policy also identifies the consequences of engaging in such prohibited conduct, including the dismissal of an 13 As noted supra footnote 2, the Acting Chief Administrative Judge’s citation to the incorrect regulation was harmless because she quoted the language from the correct regulation.  12 appeal with prejudice. 0048 PFR File, Tab 12-1 at 7; 0200 and 0230 PFR File, Tab 16-1 at 7. ¶17 On petition for review, the appellant continued to send Board employees a barrage of emails that used abusive, profane language. The Clerk of the Board again cautioned him about this behavior, provided a link to the Policy on Prohibited Conduct, and warned him that if he did not stop, the Board could impose sanctions, including dismissal of his appeals. 0048 PFR File, Tab 12-1; 0200 and 0230 PFR File, Tab 16-1. When the appellant continued sending his excessive, offensive emails to Board employees, the Clerk of the Board imposed a 1 -year email ban on the appellant, documented the appellant’s communications in the record, informed him that further sanctions could follow if he continued to violate the Policy on Prohibited Conduct or engage in ex parte communications, and gave him an opportunity to respond. 0048 PFR File, Tabs 12-1, 12-2; 0200 and 0230 PFR File, Tabs 16-1, 16-2; see 5 C.F.R. § 1201.43. The appellant did not file a response on the record. ¶18 Throughout these proceedings, the appellant was noncompliant with multiple orders and directives issued by multiple Board offices as he inundated the Board with emails containing venomous and vulgar language over an extended period. We find that this behavior constitutes contumacious conduct and was prejudicial to the administration of justice. The appellant exhibited bad faith by his continued failure to comply with Board orders. See Morris, 123 M.S.P.R. 662, ¶¶ 12-17 & n.10. Accordingly, we find that dismissal of Bergstrom I with prejudice is an appropriate sanction and is necessary to serve the ends of justice. ¶19 We are cognizant of the appellant’s diagnosis of intermittent explosive disorder (IED), which, among other things, causes him to be unable to control his rage at times. 14 Even if the appellant’s disability was a contributing factor in his 14 The appellant’s supplement to the petition for review in Bergstrom I contains a June 11, 2024 medical document addressing his medical conditions, including IED. 0048 PFR File, Tab 2 at 4-6. The appellant has not shown that this documentation, or the information contained in this documentation, was unavailable before the record below  13 violations of Board orders, the appellant was plainly aware that his conduct was unacceptable, as demonstrated by his apology in Bergstrom I. The appellant received clear and explicit warnings of the consequences of failing to cease his abusive and/or excessive communications, including the sanction of dismissal with prejudice, throughout the proceedings in Bergstrom I, including in the warning letter issued to him on February 27, 2025, and the sanctions letter issued to him on September 23, 2025. 0048 PFR File, Tab 12-1 at 1-5, 8-9; 0200 and 0230 PFR File, Tab 16-1 at 1-5, 8-9. Board employees and parties should not be subjected to the kind of abuse the appellant inflicted upon them during his cases without consequence, regardless of his disability. Cf. Doe v. Pension Benefit Guaranty Corporation, 117 M.S.P.R. 579, ¶ 34 n.10 (2012) (Neither the Rehabilitation Act nor the Americans with Disabilities Act immunizes disabled employees from being disciplined for misconduct, provided the agency would impose the same discipline on an employee without a disability.); Fitzgerald v. Department of Defense, 85 M.S.P.R. 463, ¶ 4 (2000) (same); Laniewicz v. Department of Veterans Affairs, 83 M.S.P.R. 477, ¶¶ 5-8 (1999) (same). Dismissal of Bergstrom II and III with prejudice is an appropriate sanction for the appellant’s contumacious conduct in those appeals. ¶20 The appellant argues on review that he did not receive adequate notice that Bergstrom II and III could be dismissed with prejudice based on his inappropriate and contumacious conduct. 0200 and 0230 PFR File, Tab 1 at 4. The records below in Bergstrom II and III do not contain any orders by the administrative judge that the appellant cease his inappropriate communications, or explanations of the potential consequences of continuing his offensive behavior . closed despite his due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980) (stating that, under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence). Moreover, the appellant provided other documentation below showing that he had a disability, which the administrative judge considered in dismissing Bergstrom I without prejudice. 0048 ID at 2 n.1, 6.  14 ¶21 Nevertheless, the appellant was on notice in Bergstrom II and III that his behavior was improper and that he could be sanctioned for it. As discussed above, in a January 24, 2025 email response to the appellant’s January 23 and 24, 2025 emails, the Acting Chief Administrative Judge of the Northeastern Regional Office advised the appellant that his conduct and/or communications violated the Board’s Policy on Prohibited Conduct. 0200 IAF, Tab 13 at 2-3. She also attached a copy of the Policy to the email, in addition to including a link to its location on the Board’s website, and quoted relevant portions of it, clearly notifying the appellant that “[e]ngaging in harassing, abusive, disruptive, or contumacious conduct, including the use of profanity or excessively persistent email communications, that impedes Board personnel from performing their duties” is unacceptable. Id. at 2. As set forth above, supra ¶ 16, the Board’s Policy on Prohibited Conduct precludes harassing, offensive, disruptive, or contumacious conduct, and identifies the consequences of engaging in prohibited conduct, including the dismissal of an appeal with prejudice. 0048 PFR File, Tab 12-1 at 6-7, 0200 and 0230 PFR File, Tab 16-1 at 6-7. The appellant sent several vitriolic replies to the January 24, 2025 email, with the Board’s Policy on Prohibited Conduct still attached, evidencing his receipt of the Policy and his disregard for it. 0200 IAF, Tab 13. Therefore, we find that the appellant was on notice about his contumacious, disruptive conduct and the possible consequences in Bergstrom II. ¶22 Additionally, the Board may take official notice of matters that can be verified, including documents or actions in other Board appeals. Wofford v. Department of Justice, 115 M.S.P.R. 468, ¶ 5 n.4 (2010); Moore v. Department of Justice, 112 M.S.P.R. 382, ¶ 20 n.6 (2009); see 5 C.F.R. § 1201.64. While the Board’s regulations allow only that “parties may be given an opportunity to object” to the taking of official notice, the Board has stated that it regards parties as having a right of refutation. Hope v. Department of the Army, 108 M.S.P.R. 6, ¶ 9 (2008); Anderson v. Department of Health and Human Services, 15 M.S.P.R. 13, 14-15  15 & n.1 (1983); Ketchem v. Department of Transportation, 12 M.S.P.R. 1, 3 (1982); 5 C.F.R. § 1201.64. ¶23 The administrative judge issued multiple orders in Bergstrom I, which was litigated immediately prior to Bergstrom II and III, explicitly notifying the appellant to refrain from using offensive and unprofessional language in his communications with the Board after the appellant sent emails containing profanity, derogatory language, and threats to employees of his former agency and Board employees. 0048 IAF, Tabs 3-4, 9, 49. In that appeal, the administrative judge also clearly warned the appellant that further unacceptable conduct could result in the dismissal of his appeal. 0048 IAF, Tabs 4, 49. The appellant had the opportunity to refute the administrative judge’s recitation of what transpired in Bergstrom I on petition for review in his cases, but he did not. Therefore, we take official notice of the appellant’s behavior and the orders related thereto from Bergstrom I. ¶24 Moreover, as described in detail above, the administrative judge added emails evidencing the appellant’s contumacious conduct to the record in Bergstrom II, and on petition for review in Bergstrom II and III, the Office of the Clerk of the Board placed in the record a representative sample of over 100 emails containing abusive, profane, and/or inappropriate language that the appellant sent to Board employees from December 26, 2024, to September 17, 2025. 0048 PFR File, Tabs 12-1, 12-2; 0200 and 0230 PFR File, Tabs 16-1, 16-2; see 5 C.F.R. § 1201.43 (explaining that the administrative judge shall document the reasons for a sanction in the record). In the September 23, 2025 order, the Clerk of the Board provided the appellant with an opportunity to object to the Board’s consideration of his email communications. 0048 PFR File, Tab 12 at 3; 0200 and 0230 PFR File, Tab 16 at 3. However, the appellant did not respond to that order. ¶25 On petition for review in Bergstrom II and III, the Board clearly warned the appellant that his continued use of abusive language and/or profanity in communications with Board employees violated the Board’s Policy on Prohibited  16 Conduct and could result in sanctions, including the termination of his appeals with prejudice. 0200 and 0230 PFR File, Tab 16-1 at 1-5, 8-9. Rather than heeding these warnings, the appellant continued his contumacious conduct on petition for review, submitting a reply containing derogatory statements regarding Board administrative judges and sending nearly 75 additional emails to Board employees, including to the Board members. 0200 and 0230 PFR File, Tab 8 at 3-4, Tab 9 at 3-4, Tabs 16-1, 16-2. As described above, he also sent profane emails to the agency representative during the petition for review process, causing her to seek a temporary restraining order against the appellant and to ultimately withdraw from his cases. 0200 and 0230 PFR File, Tab 7 at 4-15, Tab 10 at 3, Tab 11 at 3, Tab 12 at 4. Further, the agency representative filed motions to dismiss the appellant’s petitions for review in Bergstrom I, II, and III with prejudice due to his repeated violations of the Board’s Policy on Prohibited Conduct. 0048 PFR File, Tab 7; 0200 and 0230 PFR File, Tab 7. ¶26 For the foregoing reasons, we find that the appellant was on notice, at least by the petition for review stage, that Bergstrom II and III could be dismissed with prejudice based on his continued inappropriate and contumacious conduct. Given the Board’s repeated warnings and the appellant’s egregious ongoing violations of the Board’s orders, instructions, and Policy on Prohibited Conduct, we find that dismissal of Bergstrom II and III with prejudice is the sanction that best serves the ends of justice. See Morris, 123 M.S.P.R. 662, ¶¶ 12-17 & n.10; 5 C.F.R. § 1201.43. Dismissal of Bergstrom I , II , and III with prejudice is also warranted for the appellant’s ex parte communications. ¶27 In addition to his contumacious conduct, the appellant also violated the prohibition against ex parte communications, which is a separate basis for the sanction of dismissing his appeals with prejudice. The Board’s regulations define an ex parte communication as an oral or written communication between a decision-making official of the Board and an interested party to a proceeding when  17 that communication is made without providing the other parties to the appeal with a chance to participate. 5 C.F.R. § 1201.101. Not all ex parte communications are prohibited. Id. Rather, ex parte communications are prohibited if they involve the merits of the case or violate rules requiring submissions to be in writing. Id.; 5 C.F.R. § 1201.102. Sanctions may be applied when prohibited communications occur, including dismissal or denial of the party’s claim. 5 C.F.R. § 1201.103. ¶28 The Clerk of the Board notified the appellant, in the September 23, 2025 order, that he may have engaged in prohibited ex parte communications with decision-making officials concerning the merits of his appeals and added those communications to the record. 0048 PFR File, Tab 12, Tab 12-2; 0200 and 0230 PFR File, Tabs 16, 16-2; see 5 C.F.R. § 1201.103(a) (providing that prohibited ex parte communications will be made a part of the record). The appellant did not respond to that order. While his appeals were pending before the Board, the appellant sent multiple emails concerning the merits of his appeals to the Board’s administrative judges and the Board members without including the agency in those communications. See, e.g., 0048 PFR File, Tab 12-2 at 4, 9-11, 23, 28, 32-36, 40-44, 155, 273-81, 653-66; 0200 and 0230 PFR File, Tab 16-2 at 4, 9-11, 23, 28, 32-36, 40-44, 155, 273-81, 653-66. We find that the appellant’s ex parte communications were improper under 5 C.F.R. §§ 1201.101-1201.103 and serve as an additional basis for the dismissal of his appeals. ORDER ¶29 This is the final decision of the Merit Systems Protection Board in these joined appeals. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113).  18 NOTICE OF APPEAL RIGHTS 15