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THIS FINAL ORDER IS NONPRECEDENTIAL 1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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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.
2
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.