Kenney v. Merit Systems Protection Board ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3196
DAVID KENNEY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
David Kenney, of Lincoln, Nebraska, pro se.
Joyce G. Friedman, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With her on the brief was B. Chad
Bungard, General Counsel, and Keisha Dawn Bell, Deputy General Counsel.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3196
DAVID KENNEY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in DE3443080351-I-1.
__________________________
DECIDED: December 11, 2009
__________________________
PER CURIAM.
David Kenney (“Kenney”) petitions for review of the final decision of the Merit
Systems Protection Board (“Board”) dismissing his appeal for lack of jurisdiction.
Kenney v. Merit Sys. Prot. Bd., DE3443080351-I-1 (M.S.P.B. Mar. 25, 2009) (“Final
Decision”). Because the Board correctly determined that Kenney failed to raise a non-
frivolous allegation that, if proven, would establish jurisdiction, we affirm.
BACKGROUND
Kenney was employed as an Applications Adjudicator by the Department of
Homeland Security (“the agency”) as a term employee in Lincoln, Nebraska. Through a
series of temporary appointments, Kenney’s initial four-year appointment, ending
December 12, 2005, was extended until September 30, 2007. On September 17, 2007,
due to increasing concerns regarding Kenney’s behavior, the agency placed him on
paid administrative leave with duty status unaffected. On September 30, 2007, his term
appointment was extended until January 24, 2008, and was again extended until March
1, 2008. On January 29, 2008, the agency notified Kenney that his current term
appointment would expire on March 1, 2008 and that his term would not be extended.
He remained on paid administrative leave until his separation from the agency on March
1, 2008.
Kenney appealed the agency’s action to the Board. The Board issued an order
advising Kenney to show cause why it did not lack jurisdiction over his appeal. The
Board cited 5 C.F.R. § 752.401(b)(11), which provides that an employee’s separation on
the expiration date of a term appointment is not an appealable adverse action. Kenney
submitted a response regarding the jurisdictional issue, arguing that the agency’s
refusal to extend his term was disciplinary in nature and that the agency’s act of placing
him on administrative leave should be deemed a constructive suspension.
The Board dismissed Kenney’s appeal without a hearing. The Board held that
Kenney had not alleged any facts to show that his separation from service was anything
other than an expiry of a term appointment under 5 C.F.R. § 752.401(b)(11), which
cannot be appealed. Kenney v. Merit Sys. Prot. Bd., DE3443080351-I-1, slip op. at 5-6
(M.S.P.B. Jan. 5, 2009) (“Initial Decision”). The Board likewise held that it lacked
jurisdiction over Kenney’s claim of constructive suspension, because a period of paid
administrative leave does not qualify as a suspension. Id. at 6-7.
2009-3196 2
The Initial Decision became the Final Decision of the Board when the Board
denied Kenney’s petition for review. Final Decision, slip op. at 1-2. Kenney then filed a
timely petition for review by this court. We have jurisdiction over Kenney’s petition
pursuant to 28 U.S.C. § 1295(a)(9) (2006).
DISCUSSION
Pursuant to 5 U.S.C. § 7703(c), we must affirm a decision of the Board unless we
find it to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by substantial evidence. See
Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).
Whether the Board has jurisdiction to adjudicate an appeal is a question of law, which
this Court reviews de novo. Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed.
Cir. 2008). The appellant has the burden of establishing the Board’s jurisdiction. 5
C.F.R. § 1201.56(a)(2)(i); Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1328 (Fed.
Cir. 2006) (en banc). An appellant is not entitled to a jurisdictional hearing absent a
non-frivolous allegation that, if proven, would establish jurisdiction. Garcia, 437 F.3d at
1325.
Although the Board has jurisdiction over an adverse action by an agency, the
definition of “adverse action” specifically excludes any “[t]ermination of appointment on
the expiration date specified as a basic condition of employment at the time the
appointment was made.” 5 C.F.R. § 752.401(b)(11). Here, the evidence presented to
the Board to support jurisdiction uniformly shows that Kenney’s term appointment ended
on March 1, 2008. The Board was not required to hold a jurisdictional hearing because
2009-3196 3
Kenney did not make a non-frivolous allegation of jurisdiction. The Board correctly
found that it lacks jurisdiction over his dismissal at the end of a term appointment, which
was not an adverse action pursuant to 5 C.F.R. § 752.401(b)(11).
Kenney also alleged that his period of paid administrative leave constituted a
constructive suspension. A “suspension” is defined as “the placing of an employee, for
disciplinary reasons, in a temporary status without duties and pay.” 5 U.S.C. § 7501(2)
(emphasis added). Here, it is undisputed that Kenney was provided with full pay and
remained at full duty status during his period of administrative leave. “Since [his] pay
was not reduced, there is simply no adverse action from which the petitioner can appeal
to contest [his] placement on administrative leave.” Henry v. Dep’t of Navy, 902 F.2d
949, 954 (Fed. Cir. 1990). The Board therefore correctly held that Kenney did not make
a non-frivolous allegation with regard to his claim of constructive suspension.
In addition, Kenney alleged that the agency discriminated against him on the
basis of his disability. The Board has no jurisdiction to consider discrimination when it is
unaccompanied by an appealable adverse action over which the Board has jurisdiction.
Garcia, 437 F.3d at 1342-43; Cruz v. Dep’t of Navy, 934 F.2d 1240, 1245-46 (Fed. Cir.
1991) (en banc).
For the foregoing reasons, the decision of the Board is affirmed.
2009-3196 4