                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SHAWN K. CARTER,                                DOCKET NUMBER
                  Appellant,                         AT-0752-13-3701-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 9, 2014
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL ∗

           Shawn K. Carter, Maryville, Tennessee, pro se.

           Keyur S. Shah, Philadelphia, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed this appeal for lack of jurisdiction over the appellant’s claim
     concerning an alleged suspension. Generally, we grant petitions such as this one
     only when: the initial decision contains erroneous findings of material fact; the


     ∗
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                                                                       2

     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 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, and based on the following points and authorities, 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           After affording the parties the opportunity to address whether the Board has
     jurisdiction over the subject matter of this appeal, Initial Appeal File (IAF), Tab
     11, the administrative judge found that the appellant failed to establish that he
     had been subjected to an appealable suspension, IAF, Tab 15, Initial Decision
     (ID).    As explained in the initial decision, only certain adverse actions are
     appealable to the Board under 5 U.S.C. chapter 75.         ID at 2-3.   Although a
     suspension of more than 14 days falls within that authority, 5 U.S.C. § 7512(2),
     the administrative judge found nothing in the record to indicate that the appellant
     had been suspended at all, much less for more than 14 days, ID at 3. Rather, the
     uncontroverted evidence showed that the appellant was in an off-duty but paid
     status during the relevant period. ID at 2. Because the appellant was in a paid
     status, he was not subjected to a “suspension” that can be appealed to the Board
     as an adverse action under 5 U.S.C. chapter 75.          See 5 U.S.C. §§ 7501(2),
     7511(a)(2), 7512(2), 7513(d); Henry v. Department of the Navy, 902 F.2d 949,
     954 (Fed. Cir. 1990).
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¶3        The appellant’s petition for review does not contain any recognizable
     challenge to the administrative judge’s analysis. Rather, the petition for review
     appears to challenge the initial decision in the appellant’s separate appeal
     regarding his removal, which has been docketed as Carter v. U.S. Postal Service,
     MSPB Docket No. AT-0752-13-3703-I-1.            The Board has addressed those
     arguments in a separate decision in the removal appeal.
¶4        We discern no reason to disturb the initial decision dismissing this matter
     for lack of jurisdiction without a hearing. The appellant has failed to raise any
     nonfrivolous issue of fact relating to the determination that he was not subjected
     to an action that is reviewable by the Board.      See Manning v. Merit Systems
     Protection Board, 742 F.2d 1424, 1427-28 (Fed. Cir. 1984).

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
          You have the right to request review of this final decision by the United
     States 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 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 United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
                                                                                4

Dec. 27, 2012). You may read this law as well as other sections of the United
States   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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
