Dale Curtis Pratt v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DALE CURTIS PRATT, DOCKET NUMBER

Appellant, AT-0752-15-0256-I-1

v.

DEPARTMENT OF THE NAVY, DATE: February 23, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Dale Curtis Pratt, Pensacola, Florida, pro se.

Dan Efaw and Shari L. Oehrle, Pensacola, Florida, 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 for lack of Board 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 the facts of the case; the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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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 At all times relevant to this appeal, the appellant held the position of

Management Analyst. Initial Appeal File (IAF), Tab 5 at 7-8. In July 2012, the

agency suspended him for 5 days, based upon charges of failing to complete

assignments within a deadline and inattention to duty. IAF, Tab 5 at 7, Tab 10

at 10-12. In October 2014, the agency suspended the appellant for 14 calendar

days, based upon charges of careless workmanship and inattention to duties. 2

IAF, Tab 5 at 8, Tab 10 at 4-9.

¶3 The appellant filed the instant appeal, citing the aforementioned

suspensions and alleging that the agency failed to provide him proper training,

possibly because, according to the appellant, he was not the agency’s preferred

choice for his position. 3 IAF, Tab 1 at 3, 5. The administrative judge issued an

order, informing the appellant of relevant limits to the Board’s jurisdiction and

directing him to meet his jurisdictional burden. IAF, Tab 6. The appellant

responded, suggesting that the Board should assert jurisdiction over his 5-day and

14-day suspensions because they were for “the same issue.” IAF, Tab 7 at 3.

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The agency first proposed the 14-day suspension in April 2014, but held it in abeyance

until October 2014, to give the appellant an opportunity for improvement. IAF, Tab 10

at 4-9.

3

The appellant did not request a hearing. IAF, Tab 1 at 2.

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¶4 The administrative judge dismissed the appeal for lack of jurisdiction. IAF,

Tab 11, Initial Decision (ID). The appellant has filed a petition for review.

Petition for Review (PFR) File, Tab 1.

¶5 In his petition for review, the appellant reasserts that the agency suspended

him twice for the same thing—inattention to duty. Id. at 4. He also reasserts that

the suspensions were attributable to a lack of proper training, possibly because he

was not the agency’s preferred candidate for his position, which he received as

part of the Priority Placement Program. Id. We find no reason for disturbing the

initial decision based on these arguments.

¶6 The Board does not have jurisdiction over all matters involving a Federal

employee that are allegedly unfair or incorrect. Johnson v. U.S. Postal

Service, 67 M.S.P.R. 573, 577 (1995). Rather, the Board’s jurisdiction 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).

¶7 Suspensions of more than 14 days are within the Board’s jurisdiction

under 5 U.S.C. §§ 7512(2) and 7513(d), but a suspension of 14 or fewer days is

not an appealable action. Lefavor v. Department of the Navy, 115 M.S.P.R. 120,

¶ 5 (2010). For purposes of finding Board jurisdiction, consecutive suspensions

may be combined when they are based on the same reason. Edwards v. U.S.

Postal Service, 112 M.S.P.R. 196, ¶ 8 (2009). The Board also has left open the

possibility that nonconsecutive suspensions may be combined when the

suspensions are based on the same reason, and there is evidence that the agency

attempted to circumvent Board jurisdiction by imposing multiple suspensions of

14 days or less. Id.

¶8 Neither of the appellant’s suspensions falls within the Board’s jurisdiction

on their own; each was 14 days or less. IAF, Tab 5 at 7-8. In addition, the

suspensions were not consecutive; they were separated by approximately 2 years.

Id. However, the appellant suggests that the nonconsecutive suspensions should

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be combined for jurisdictional purposes because they are based upon the same

reason. PFR File, Tab 1 at 4. The administrative judge found otherwise, and we

agree. ID at 2-3.

¶9 As the appellant observes, his suspensions are similar in that each includes

a charge of “inattention to duty.” IAF, Tab 10 at 7, 11. Nevertheless, the

suspensions remain separate and distinct, even if both are attributable to a lack of

training, as the appellant alleges. The agency imposed the 5-day suspension in

2012 due to his actions in that calendar year. Id. at 10-11. It imposed the 14-day

suspension in 2014 due to his actions in that calendar year. Id. at 4-9. We

conclude that those separate and distinct suspensions cannot be combined to

establish Board jurisdiction. See, e.g., Jennings v. Merit Systems Protection

Board, 59 F.3d 159, 160-61 (Fed. Cir. 1995) (finding that two 14-day suspensions

were not combinable for purposes of Board jurisdiction because they arose from

different events). We therefore affirm the administrative judge’s decision,

dismissing the appeal for lack of jurisdiction.

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:

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

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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.