                            UNITED STATES OF AMERICA
                         MERIT SYSTEMS PROTECTION BOARD
                                      2014 MSPB 71

                            Docket No. CH-752S-14-0077-I-1

                                    Trent D. Engler,
                                        Appellant,
                                             v.
                               Department of the Army,
                                         Agency.
                                    September 3, 2014

           Thomas Esparza, Rock Island, Illinois, for the appellant.

           Karen Barrows, Rock Island, Illinois, for the agency.

                                         BEFORE

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



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal of a 10-working-day suspension for lack of jurisdiction. For
     the reasons discussed below, we DENY the petition for review and AFFIRM the
     initial decision.

                                     BACKGROUND
¶2         The agency suspended the appellant from his GS-13 Logistics Management
     Specialist position for 10 working days to be served from Monday, April 29,
     2013, through Friday, May 10, 2013, for conduct unbecoming a federal employee.
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     Initial Appeal File (IAF), Tab 1 at 10, Tab 7 at 153-55, 157 of 169.          In the
     decision letter, the agency ordered the appellant to move his regular day off
     (RDO) 1 from May 3, 2013, to April 26, 2013, the Friday immediately preceding
     the suspension period. Id. at 154 of 169. Pursuant to the agency’s instruction,
     the appellant was off work from Friday, April 26, 2013, through Monday, May
     13, 2013, although he was returned to a duty status on Saturday, May 11, 2013.
     IAF, Tab 1 at 10, Tab 7 at 153-55 of 169.
¶3         In October 2013, the appellant appealed the suspension to the Board. 2 IAF,
     Tab 1. On November 6, 2013, the administrative judge issued orders advising the
     appellant of the jurisdictional and timeliness issues in the appeal. IAF, Tabs 2, 3.
     Regarding jurisdiction, the administrative judge explained that the appellant must
     show that the agency’s suspension action exceeded 14 days in order to establish
     Board jurisdiction over his appeal. IAF, Tab 2 at 2. The appellant responded
     that, because he was forced to take his RDO on Friday, April 26, 2013, his
     suspension effectively exceeded 14 calendar days, vesting the Board with
     jurisdiction over his appeal. IAF, Tab 6. The appellant also responded that good
     cause existed for his late filing because the agency never provided notice of his
     Board appeal rights, and he did not learn that he may have an appealable action
     until he consulted with a lawyer on or about October 16, 2013. IAF, Tab 5 at 3.
     The agency moved that the appeal be dismissed for lack of jurisdiction, or in the
     alternative, for untimeliness, or, in the further alternative, that the suspension be
     upheld on the merits. IAF, Tab 7 at 5-20 of 21.




     1
      The appellant works a compressed work schedule consisting of eight 9-hour days, one
     8-hour day per pay period, and one regular day off per pay period. See Petition for
     Review (PFR) File, Tab 1 at 4-5.
     2
      The petition for appeal is dated October 10, 2013. IAF, Tab 1 at 8. However, the
     metered-mail stamp reflects a mailing date of October 24, 2013. Id. at 23.
                                                                                         3

¶4         On April 15, 2014, the administrative judge issued a decision without
     holding the requested hearing dismissing the appeal for lack of jurisdiction. IAF,
     Tab 8, Initial Decision (ID). She found that the appellant was in a pay status on
     Friday, April 26, 2013, when he took his rescheduled RDO, and, as such, that day
     could not be considered part of the suspension.            ID at 3.   Accordingly, she
     concluded that the agency suspended the appellant for only 10 consecutive
     working days, and that the Board lacked jurisdiction over the appeal. ID at 3.
     She did not address the timeliness issue. See ID.
¶5         The appellant has filed a timely petition for review of the initial decision.
     PFR File, Tab 1. He again argues that the Board should find jurisdiction over his
     appeal because his suspension actually began on Friday, April 26, 2013, when,
     pursuant to the agency’s decision notice, he was forced to take his RDO, and
     ended on Friday, May 10, 2013.          Id.   Thus, he concludes that his suspension
     encompassed more than 14 calendar days.              Id.     The agency opposes the
     appellant’s petition for review. PFR File, Tab 3.

                                        ANALYSIS
¶6         The Board has jurisdiction over appeals only from the types of agency
     actions specifically enumerated by law, rule, or regulation.           Perez v. Merit
     Systems Protection Board, 931 F.2d 853, 855 (Fed. Cir. 1991). These appealable
     actions include suspensions for more than 14 days.            5 U.S.C. § 7512(2). A
     “suspension” is the temporary placement of an employee in a nonpay, nonduty
     status. Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 6 (2014); Yarnell v.
     Department of Transportation, 109 M.S.P.R. 416, ¶ 10 (2008). This definition
     covers not just unpaid disciplinary absences but also other types of enforced
     leave imposed on an employee against his will. See Abbott, 121 M.S.P.R. 294,
     ¶ 6; see also Perez, 931 F.2d at 855.
¶7         In the instant case, as discussed above, the appellant argues that the Board
     has jurisdiction over his appeal because his suspension was more than 14 calendar
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      days when the rescheduled RDO is taken into account.         The issues before us,
      therefore, are: (1) whether the appellant’s mandated absence on April 26, 2013,
      constitutes enforced leave; and (2) if so, whether the day of enforced leave may
      be considered in conjunction with the 10-working-day suspension to reach an
      appealable suspension over 14 days.
¶8          We find that the switching of an optional day off under a compressed work
      schedule does not equate to involuntarily placing an employee in a leave status.
      Here, the appellant is not losing any pay or benefit of employment by having to
      take an alternate day off. Thus, the situation here, where management merely
      advised the appellant to change his day off under the Federal Employees Flexible
      and Compressed Work Schedules Act, Pub. L. No. 95-390, 95 Stat. 755 (1978), as
      amended, codified at 5 U.S.C. §§ 6120-6133, is not tantamount to forcing an
      employee to take leave against his will. See generally Worthington v. United
      States, 168 F.3d 24, 27 (Fed. Cir. 1999) (being forced to work a compressed work
      schedule is not an adverse action within the Board’s jurisdiction).
¶9          Accordingly, we find that the administrative judge correctly determined
      that the Board lacks jurisdiction over the appellant’s appeal of a 10-working-day
      suspension.

                                            ORDER
¶10         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        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:
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                               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.
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
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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.
