The opinion
PUNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARRELL L. WELLS, DOCKET NUMBER
Appellant, CH-0752-15-0478-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 10, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
James W. Malone, Bedford Park, Illinois, for the appellant.
Alison D. Alvarez, Chicago, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his 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
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the facts of the case; the administrative 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, 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 agency issued the appellant notice on April 30, 2015, that it was
suspending him from his position as a maintenance mechanic based on his
altercation with a coworker. Initial Appeal File (IAF), Tab 5 at 95. The agency
placed the appellant on administrative leave for the remainder of the day after it
issued him notice of his suspension, and it granted his request to use annual leave
on the following day, May 1, 2015. Id. at 79, 93. The agency thereafter placed
the appellant in a nonduty status between May 2 and May 15, 2015, and returned
him to a paid status on May 16, 2015. Id. at 80-82.
¶3 The appellant filed an initial appeal of his suspension in which he alleged
that he had been suspended without pay for more than 14 days. IAF, Tab 1. The
agency moved to dismiss the appeal for lack of jurisdiction, arguing that the
appellant had not been subjected to an adverse action appealable to the Board.
IAF, Tab 5. The administrative judge subsequently dismissed the appeal for lack
of jurisdiction, finding that the appellant had not been suspended for more than
14 days. IAF, Tab 10, Initial Decision (ID). In her initial decision, the
administrative judge found that the agency had only placed the appellant in a
nonpay status for 14 days between May 2 and May 15, 2015, and that it had
granted the appellant’s request to use annual leave on May 1, 2015. ID at 4-5.
3
The administrative judge rejected the appellant’s argument that the agency
erroneously granted this leave request because it post-dated the agency’s decision
to suspend him, and she declined to include this day as part of the appellant’s
suspension for purposes of determining whether the Board has jurisdiction over
this appeal. ID at 4.
¶4 The appellant has filed a petition for review arguing that the agency
improperly granted his request to use annual leave on May 1, 2015, and that the
agency subsequently could issue a demand letter seeking to rescind his use of
annual leave on this date, thus subjecting him to a 15-day suspension. Petition
for Review (PFR) File, Tab 1 at 2. The agency has filed a response in opposition
to the petition for review. PFR File, Tab 3.
¶5 An employee may appeal a suspension that is greater than 14 days to the
Board under chapter 75. See 5 U.S.C. § 7512(2); Abbott v. U.S. Postal
Service, 121 M.S.P.R. 294, ¶ 6 (2014). A suspension is defined as the temporary
placement of an employee in a nonpay, nonduty status. Abbott, 121 M.S.P.R.
294, ¶ 6 (citing 5 U.S.C. § 7501(2)). An employee’s involuntary absence for
more than 14 days that results in the loss of pay or forces him to take leave that
he did not intend to take is a suspension within the Board’s jurisdiction
under 5 U.S.C. §§ 7512(2) and 7513(d). See Crutch v. U.S. Postal
Service, 119 M.S.P.R. 460, ¶ 6 (2013), overruled on other grounds by
Abbott, 121 M.S.P.R. 294, ¶ 10. 2 The Board has long held, however, that
suspensions lasting exactly 14 days, as well as those lasting less than 14 days, are
not appealable to the Board. See Harrison v. U.S. Postal Service, 26 M.S.P.R. 37,
38-39 (1985).
2
In Abbott, the Board clarified that an agency’s placement of an employee on enforced
leave for more than 14 days must be assessed under the framework applied to other
adverse actions under chapter 75, and not under the Board’s case law concerning the
Board’s jurisdiction over a constructive adverse action. See 121 M.S.P.R. 294, ¶ 10.
4
¶6 We agree with the administrative judge that the appellant was suspended for
exactly 14 days and that this suspension is not appealable to the Board under
chapter 75. The record reflects that the appellant was in a nonduty, nonpay status
for 14 days between May 2 and May 15, 2015. IAF, Tab 5 at 80-83. While the
agency originally informed the appellant that it was imposing his suspension at
the end of his tour of duty effective April 30, 2015, id. at 95, the record
demonstrates that the agency granted his request to use annual leave the following
day and placed him in a paid annual leave status on May 1, 2015, id. at 79, 93.
Although the Board has held that a suspension covers both unpaid absences and
an employee’s placement on sick or annual leave against his will, see
Abbott, 121 M.S.P.R. 294, ¶ 6, here, there is no dispute that the appellant initiated
the annual leave request for May 1, 2015, and that the agency placed him in a
paid leave status on this date pursuant to his request. 3 For purposes of
establishing the Board’s jurisdiction, the only question is whether the employee’s
placement in a leave status was voluntary or involuntary, and only the latter is
appealable. Id. We therefore agree with the administrative judge that the
appellant was placed in a nonduty, nonpay status for 14 days and that his
placement in a paid annual leave status on May 1, 2015, should not be counted
toward his suspension for purposes of establishing Board’s jurisdiction over
this appeal.
¶7 On review, the appellant renews his argument that the agency could
subsequently seek to rescind his placement on paid leave for May 1, 2015,
because he should not have been granted leave following his suspension from
duty. PFR File, Tab 1 at 2. We agree with the administrative judge, however,
that the Board’s jurisdiction is determined by the nature of the agency’s action at
3
The appellant has not argued that his May 1, 2015 annual leave request was initiated
by the agency because it was based on agency misinformation. See, e.g.,
Boudousquie v. Department of the Air Force, 102 M.S.P.R. 397, ¶ 6 (2006) (explaining
that the appellant’s request for leave without pay could be involuntary if it is based on
agency misinformation).
5
the time the appellant files his appeal. See Lefavor v. Department of the
Navy, 115 M.S.P.R. 120, ¶ 10 (2010); ID at 4. When the appellant filed his
appeal, he had only been suspended for 14 days. Because the appellant’s
approved leave status remained unchanged when he filed the instant appeal, 4 he
has failed to nonfrivolously allege that he was subjected to a suspension of more
than 14 days. Cf. McHenry v. U.S. Postal Service, 121 M.S.P.R. 80, ¶¶ 7-8
(2014) (finding that the agency suspended the appellant when it retroactively
changed his approved sick leave to leave without pay prior to his filing a Board
appeal); Edwards v. U.S. Postal Service, 112 M.S.P.R. 196, ¶¶ 9-10 (2009)
(determining that a retroactive amendment to the appellant’s time and attendance
records caused him to be suspended without pay for more than 14 days and that
the Board had jurisdiction over the appeal).
¶8 Based on the foregoing, we agree with the administrative judge that the
appellant was suspended for 14 days and that the Board lacks jurisdiction over
this appeal. The administrative judge’s jurisdictional dismissal is accordingly
affirmed, and the appellant’s petition for review is denied.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. 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,
4
The appellant has submitted no evidence or argument that the agency has sought to
either retroactively amend his time and attendance records or rescind his approved leave
status for May 1, 2015.
6
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).
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 U.S. 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 U.S. 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. 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.