Duncan v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANN MARIE DUNCAN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2014-3187
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-752S-14-0506-I-1.
______________________
Decided: February 6, 2015
______________________
ANN MARIE DUNCAN, Riverdale, MD, pro se.
CALVIN M. MORROW, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC for
respondent. Also represented by BRYAN G. POLISUK.
______________________
2 DUNCAN v. MSPB
Before MOORE, TARANTO, and CHEN, Circuit Judges.
PER CURIAM
Ann Marie Duncan appeals the final decision of the
Merit Systems Protection Board, which affirmed the
administrative judge’s decision that the Board lacks
jurisdiction to review Ms. Duncan’s appeal from her five-
day suspension. Because the Board has no “adverse
action” jurisdiction over suspensions lasting 14 days or
less, we affirm.
BACKGROUND
Ms. Duncan served as a civilian program analyst for
the Coast Guard. R.A. 21. On March 6, 2014, by letter,
the agency told her that it was suspending her for five
days for failing to follow an instruction. R.A. 18. The
letter said that a notice of proposed suspension, articulat-
ing details regarding “[t]he reason for [her] proposed
suspension,” had been given to her on January 28, 2014.
Id. The March 6 letter noted that Ms. Duncan had been
afforded “an opportunity to respond to the proposed action
both orally and in writing.” Id. Ms. Duncan contends, to
the contrary, that the Coast Guard “refused to provide
[the] Notice of Proposed Suspens[ ]ion and [an] opportuni-
ty for [her] to present [her] case.” Appellant’s Br. at 1.
Ms. Duncan appealed the suspension to the Board on
March 11, 2014. She argued that she received no advance
notice of her suspension, so that she was unable to review
the details of the proposed suspension with a union repre-
sentative and seek mediation before the suspension was
made final. On April 29, 2014, the administrative judge
dismissed her appeal, concluding that “[i]t is well settled
that the Board does not have jurisdiction over suspen-
sions of fourteen days or less,” and stating that Ms. Dun-
can offered no other basis for supporting the Board’s
jurisdiction to review her appeal. R.A. 3. The Board
affirmed. Duncan v. Dep’t of Homeland Sec., No. DC-
DUNCAN v. MSPB 3
752S-14-0506-I-1, 2014 WL 5387497, at *3 (M.S.P.B. Aug.
18, 2014). 1
DISCUSSION
We may set aside the Board’s decision only when it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys. Prot.
Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). We review the
Board’s decision regarding its own jurisdiction de novo.
Palmer v. Merit Sys. Prot. Bd., 550 F.3d 1380, 1382 (Fed.
Cir. 2008).
In Ms. Duncan’s case, the Board correctly determined
that it lacked jurisdiction to hear her appeal. The Board’s
jurisdiction is “ ‘limited to actions made appealable to it by
law, rule, or regulation.’ ” Id. (quoting Forest v. Merit Sys.
Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995)). The Civil
Service Reform Act grants the Board “adverse action”
jurisdiction to hear appeals of suspensions lasting longer
than 14 days, 5 U.S.C. § 7512, but suspensions of a short-
er duration are not among the reviewable “adverse ac-
tions.” See United States v. Fausto, 484 U.S. 439, 448–49
(1988) (holding that Congress manifested a clear intent to
preclude review of minor adverse employment actions
under §§ 7501–7504); Bush v. Lucas, 462 U.S. 367, 385
1 In seeking review of the administrative judge’s
decision, Ms. Duncan noted for the first time before the
Board that she also sought review of the decision under
the Uniformed Services Employment and Reemployment
Rights Act. Understanding Ms. Duncan to be seeking to
file an appeal under that Act, the Board submitted the
matter to the relevant regional office for docketing of a
new appeal.
4 DUNCAN v. MSPB
n.28 (1983) (suspensions of 14 days or less are not appeal-
able to the Board); Synan v. Merit Sys. Prot. Bd., 765 F.2d
1099, 1101 (Fed. Cir. 1985). Thus, whether or not Ms.
Duncan was denied a statutory right to notice of her
proposed suspension, she cannot appeal the suspension
under the Board’s “adverse action” jurisdiction.
Ms. Duncan did not present any other basis for juris-
diction to the Board. In this court, she argues that her
suspension was “in retaliation for protected whistleblow-
ing activities.” Appellant’s Br. at 2. She asserts that the
Whistleblower Protection Act grants the Board jurisdic-
tion to review “any personnel action” that an agency takes
in retaliation for disclosures protected by statute, 5 U.S.C.
§ 1221(a) (emphasis added), unconstrained by the “ad-
verse action” limit of 5 U.S.C. § 7512. But Ms. Duncan
did not present a Whistleblower Protection Act claim to
the Board, and so we do not consider it here. Wallace v.
Dep’t of the Air Force, 879 F.2d 829, 832 (Fed. Cir. 1989)
(appellant must raise the issue “with sufficient specificity
and clarity that the [Board] is aware that it must decide
the issue, and in sufficient time that [it] can do so”).
AFFIRMED
No costs.