Smith v. Merit Systems Protection Board ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3097
ANDREW B. SMITH,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: June 9, 2006
__________________________
Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge, and LINN, Circuit Judge.
PER CURIAM.
Andrew B. Smith (“Smith”) appeals a decision of the Merit Systems Protection
Board (“Board”), dismissing his appeal of his two separate 14-day suspensions for lack
of jurisdiction. Smith v. United States Postal Serv., No. SF-0752-05-0583-I-1 (M.S.P.B.
Nov. 21, 2005) (“Final Order”). We affirm.
BACKGROUND
The United States Postal Service (“agency”) employed Smith as a mailhandler.
On February 2, 2002, the agency suspended Smith for 14 days for failure to follow
instructions. On March 9, 2002, the agency again suspended him for 14 days, this time
for unacceptable conduct and failure to follow instructions. Subsequently, Smith was
removed from his position effective November 18, 2002.
Smith originally filed two complaints with the Equal Employment Opportunity
Commission (“EEOC”) appealing the two suspensions and his later removal by the
agency. The EEOC, however, dismissed the two complaints on the basis that it lacked
jurisdiction over so-called “mixed case complaints,” and the Board was the proper
forum. In reaching his conclusion, the administrative judge of the EEOC stated that:
The two complaints are related, because the back-to-back
disciplinary suspensions totaling 28 days (in this case)
culminated in Smith’s removal (in the second case).
I find that the 28-day suspension and the removal issues are
appealable only to the [Board].
On April 22, 2005, Smith petitioned the Board to review the February 2, 2002,
and the March 9, 2002, 14-day suspension actions. Smith separately appealed his
removal to the Board, and that appeal is not the subject of the case before us here. In
an initial decision, the Board dismissed Smith’s appeal of the two suspension actions,
concluding that it lacked jurisdiction to review an appeal of a suspension of 14-days or
less, and that two such suspensions cannot be combined to confer Board jurisdiction.
See Smith v. United States Postal Serv., No. SF-0752-05-0583-I-1 (M.S.P.B. Aug. 19,
2005) (“Initial Decision”).
The initial decision became the final decision of the Board after the Board denied
Smith’s petition for review. See Final Order, slip op. at 1-2. Smith timely appealed. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
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DISCUSSION
A. Standard of Review
Our review of the Board’s decision is limited by statute. We may hold unlawful
and set aside any agency action, findings, or conclusions found 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. 5 U.S.C. § 7703(c) (2000); Chase-Baker v. Dep’t
of Justice, 198 F.3d 843, 845 (Fed. Cir. 1999). Whether the Board has jurisdiction over
an appeal is a question of law, which we review de novo. Hayes v. United States Postal
Serv., 390 F.3d 1373, 1376 (Fed. Cir. 2004).
B. Analysis
The jurisdiction of the Board is not plenary but is limited to actions made
appealable to it by law, rule, or regulation. 5 U.S.C. § 7701(a) (2000). The Board does
not possess jurisdiction over an appeal of a suspension for 14 days or less. 5 U.S.C.
§ 7512; 5 C.F.R. § 1201.3a(a)(2); Synan v. Merit Sys. Prot. Bd., 765 F.2d 1099, 1101
(Fed. Cir. 1985) (holding that the Board lacks jurisdiction over a suspension of 14 days
or less).
On appeal, Smith argues that the Board erred in holding that it lacked jurisdiction
because he was suspended twice for 14 days and the aggregate of the suspensions
totaled more than 14 days (i.e., 28 days). Smith further contends that the statements by
the administrative judge of the EEOC in his dismissal order support combining the two
suspensions into a single suspension action. We disagree.
06-3097 3
Smith was subjected to two separate disciplinary suspensions of 14 days each.
The first suspension, issued on February 2, 2002, resulted from Smith’s failure to follow
instructions; the second, issued a month later on March 9, 2002, was a result of
unacceptable conduct and failure to follow instructions. Arguing in support of Board
jurisdiction, Smith principally relies on the statements made by the EEOC administrative
judge. Smith’s reliance on these statements is misplaced.
The administrative judge in the context of dismissing the two cases—one
involving the two suspensions and the other involving the subsequent removal action—
indicated that the suspensions and the removal action were related, and the two
suspensions totaled 28 days. He went on to refer to the suspensions as “back-to-back”
and concluded that the suspension and removal cases were “appealable only to the
Board.” The statement by the administrative judge that the two suspensions and the
removal action were related correctly reflects that both complaints presented “mixed
cases” but is of no consequence on the question of Board jurisdiction. The further
statement by the administrative judge that the two 14-day suspensions “totaled” 28 days
is also correct but cannot alter the fact that the suspensions arose out of separate
infractions, were imposed on separate dates, and extended over non-overlapping
periods. “Because these two suspensions arose out of separate events and
circumstances, they cannot be combined to constitute a single suspension for the
purpose of determining jurisdiction.” Jennings v. Merit Sys. Prot. Bd., 59 F.3d 159, 161
(Fed. Cir. 1995). The administrative judge thus was incorrect both in characterizing the
suspensions as “back-to-back” and in concluding that they were appealable to the
Board.
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We have considered Smith’s other arguments and contentions, and do not find
them to be relevant to the issue of Board jurisdiction.
CONCLUSION
For the foregoing reasons, the Board’s dismissal of Smith’s appeal for lack of
jurisdiction is affirmed.
COSTS
No costs.
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