The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANN MARIE DUNCAN, DOCKET NUMBER
Appellant, DC-752S-14-0506-I-1
v.
DEPARTMENT OF HOMELAND DATE: August 18, 2014
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ann Marie Duncan, Riverdale, Maryland, pro se.
Lorna J. Jerome, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of a 5-day suspension for lack of jurisdiction. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant occupied a competitive service position of program analyst,
GS-0343-13, with the United States Coast Guard. Initial Appeal File (IAF),
Tab 1 at 1, 8. On March 6, 2014, the agency notified the appellant of its decision
to suspend her for 5 calendar days, effective March 10, 2014, for failure to follow
instructions. Id. at 8-9.
¶3 On March 11, 2014, the appellant timely filed her appeal, arguing that the
agency failed to follow agency policy and the master labor agreement. Id. at 6.
The appellant also indicated that she was serving a probationary period. Id. at 1.
In his acknowledgment order, the administrative judge stated that the Board may
not have jurisdiction over suspensions of 14 days or less and he ordered the
appellant to file evidence and argument to prove that the action was within the
Board’s jurisdiction. IAF, Tab 2 at 2-3. The administrative judge also stated that
the Board may lack jurisdiction over an appeal by a probationary employee absent
certain circumstances. Id. at 3-5. The administrative judge afforded the appellant
an opportunity to file evidence or argument showing that her appeal should not be
dismissed for failure to make a nonfrivolous allegation of jurisdiction, id. at 5,
but the appellant’s only subsequent submission filed below did not address the
3
jurisdictional questions, IAF, Tab 3. The agency moved to dismiss the appeal for
lack of jurisdiction on the ground that the appellant elected to appeal her
suspension through the agency’s grievance process pursuant to the collective
bargaining agreement before she filed her Board appeal. IAF, Tab 5 at 7.
¶4 The administrative judge dismissed the appeal for lack of jurisdiction,
without holding the requested hearing. IAF, Tab 6, Initial Decision (ID). In his
initial decision, the administrative judge discussed the jurisdictional issues
presented by both the appellant’s status as a probationary employee and the
length of the suspension. ID at 2-3.
¶5 In her timely filed petition for review, 2 the appellant explains for the first
time that her appeal was based on a Uniformed Services Employment and
Reemployment Rights Act (USERRA) filing, number DC-2014-0006-30-V. PFR
File, Tab 1 at 1. She states that she received the suspension 2 days after the
Department of Labor issued some sort of notice regarding the USERRA matter. 3
Id. The appellant did not address the administrative judge’s finding that the
Board lacked jurisdiction over her appeal because she was a probationary
employee and because she was suspended for less than 14 days. Id. The agency
did not respond to the petition for review. See PFR File.
¶6 The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Suspensions of more
than 14 days are within the Board’s jurisdiction under 5 U.S.C. §§ 7512(2) and
2
On May 3, 2014, the appellant filed a pleading titled “Appellant Response to Initial
Order.” Petition for Review (PFR) File, Tab 1. The Clerk of the Board properly
docketed the pleading as the appellant’s petition for review. See 5 C.F.R.
§ 1201.114(a)(1) (a petition for review is a pleading in which a party contends that an
initial decision was incorrectly decided in whole or in part); PFR File, Tab 2, at 1.
3
In her initial appeal, the appellant did not mention USERRA, and, in her response to
the acknowledgment order, she only stated that she received the suspension 2 days after
the Department of Labor issued some sort of notice regarding the USERRA matter.
IAF, Tabs 1, 3.
4
7513(d). However, a suspension of 14 days or less is not an appealable action.
Lefavor v. Department of the Navy, 115 M.S.P.R. 120, ¶ 5 (2010); Stewart v.
Department of Defense, 82 M.S.P.R. 649, ¶ 15 (1999).
¶7 In her petition for review, the appellant does not allege any error in the
administrative judge’s decision to dismiss the appellant’s appeal for lack of
jurisdiction based on the length of the suspension. See PFR File, Tab 1. Based
on our review of the record, we discern no error in the administrative judge’s
decision. ID at 3; see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997)
(finding no reason to disturb the administrative judge’s findings where the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health
& Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶8 Regarding the appellant’s status as a probationary employee, as the
administrative judge correctly explained, an individual serving in her
probationary period may appeal a termination for reasons arising prior to the
employee’s appointment if it was not effected in accordance with 5 C.F.R.
§ 315.805, or a termination for post-appointment reasons if it is based on partisan
political reasons or marital status. ID at 2; 5 C.F.R. § 315.806(b)-(c); Merian v.
Department of the Navy, 107 M.S.P.R. 221, ¶ 4 (2007). The appellant indicated
on her appeal form that she was serving a probationary period, IAF, Tab 1 at 1,
and, despite being informed of the jurisdictional issue and being afforded the
opportunity to file evidence and argument sufficient to meet her burden to
nonfrivolously allege that she had Board appeal rights, IAF, Tab 2 at 3-5, the
appellant failed to respond. The appellant does not raise this matter in her
petition for review.
¶9 The appellant also indicated on her appeal form that she had 4 years of
government service, IAF, Tab 1 at 1, which could suggest that she was not a
5
probationary employee. We need not resolve this issue, however, because it is
clear that the Board lacks jurisdiction over an appeal of a 5-day suspension. 4
¶10 In sum, we find that the administrative judge properly dismissed the
appellant’s appeal for lack of jurisdiction. As discussed above, in her petition for
review, the appellant states, for the first time, her apparent desire to file an appeal
under USERRA. PFR File, Tab 1. Accordingly, we forward this matter to the
Washington Regional Office for the docketing of a new USERRA appeal. See
Maibaum v. Department of Veterans Affairs, 116 M.S.P.R. 234, ¶ 20 (2011)
(forwarding a USERRA claim to the regional office for docketing).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
4
Because the administrative judge dismissed the appeal for lack of jurisdiction on other
grounds, it was within his discretion not to address the agency’s alternative argument
raised below that the appeal should be dismissed based on the appellant’s election of
remedies. See Wagner v. Environmental Protection Agency, 51 M.S.P.R. 337, 352
(1991), aff’d, 972 F.2d 1355 (Fed. Cir. 1992) (Table) (an administrative judge need not
cite every possible alternative basis for the disposition of an appeal, when the basis that
he does cite suffices as legal support for his decision).
6
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.