                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     NAPOLEON B. GAINEY,                             DOCKET NUMBER
                  Appellant,                         DC-0752-16-0167-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 9, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Corinthian J. Burrell, High Point, North Carolina, for the appellant.

           Greg Allan Ribreau, Esquire, Charlotte, North Carolina, 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 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                                                                       2

     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).

                                       BACKGROUND
¶2         The appellant filed a Board appeal in which he indicated that he was
     appealing his proposed removal. Initial Appeal File (IAF), Tab 1 at 3, 8-10. He
     further asserted that the agency proposed his removal due to discrimination and
     retaliation.   Id. at 12.   During subsequent status conference calls with the
     administrative judge, the appellant raised a potential claim that the agency
     suspended him by placing him on enforced leave. IAF, Tabs 10-11.
¶3         The agency moved to dismiss the appeal for lack of jurisdiction, asserting
     that, although it had proposed the appellant’s removal, his removal was never
     effected and he had not been suspended for more than 14 days.          IAF, Tab 12
     at 5‑6.   In support of its argument, the agency stated the following:           on
     October 28, 2015, after working 6.25 hours, the appellant was instructed to leave
     work pending his removal and he took 1.75 hours of sick leave for the remainder
     of the day. Id. at 10. The appellant was not scheduled to work on the next day,
     October 29, 2015.     Id.   On October 30, 2015, the appellant was charged with
     8 hours of leave without pay (LWOP).        Id. at 11.   On October 31, 2015, the
     agency placed the appellant on administrative leave, on which he remained until
     his return to duty on February 10, 2016. Id.
                                                                                             3

¶4         Without holding the requested hearing, the administrative judge issued an
     initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 13, Initial
     Decision (ID).     The administrative judge found that the appellant failed to
     nonfrivolously allege that he suffered an appealable adverse action because the
     record reflected that the agency did not issue a removal decision and only placed
     him in an unpaid leave status for a total of 8 hours. ID at 4. The administrative
     judge further found that absent an otherwise appealable action the Board lacks
     jurisdiction over the appellant’s claims of discrimination and retaliation.            ID
     at 4‑5.
¶5         The appellant has filed a petition for review in which he asserts that the
     administrative judge improperly raised the issue of jurisdiction, misconstrued his
     statements during the status conferences, and prematurely dismissed the appeal
     without considering his response to the agency’s motion to dismiss. Petition for
     Review (PFR) File, Tab 1 at 1-2. The agency has filed a response in opposition
     to the appellant’s petition. PFR File, Tab 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶6         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).           Thus, it follows that the
     Board does not have jurisdiction over all matters alleged to be unfair or incorrect.
     Johnson v. U.S. Postal Service, 67 M.S.P.R. 573, 577 (Fed Cir. 1995).                The
     appellant bears the burden of proving by preponderant evidence 2 that his appeal is
     within the Board’s jurisdiction. 5 C.F.R. § 1201.56(b)(2)(i)(A). If an appellant
     makes a nonfrivolous 3 allegation of Board jurisdiction over an appeal, he is

     2
      A preponderance of the evidence is that “degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q).
     3
       A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
     issue. 5 C.F.R. § 1201.4(s).
                                                                                             4

     entitled to a hearing on the jurisdictional question.        Garcia v. Department of
     Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc).
¶7         We agree with the appellant that the administrative judge erred in
     dismissing the appeal on March 4, 2016, without considering his response to the
     agency’s motion to dismiss.       The record reflects that the administrative judge
     afforded the appellant until February 29, 2016, to file a response to the agency’s
     motion to dismiss. IAF, Tab 11 at 1. Thus, the appellant’s response, postmarked
     on February 29, 2016, and received by the Board on March 3, 2016, was timely
     filed and should have been considered. IAF, Tab 15; see 5 C.F.R. § 1201.4(l).
     Nonetheless, having considered all of the appellant’s submissions below and on
     review, we agree with the administrative judge that the appellant has failed to
     make nonfrivolous allegations of Board jurisdiction over his appeal. 4
¶8         The Board has jurisdiction over adverse actions, including a removal and a
     suspension for more than 14 days. 5 5 U.S.C. § 7512(1)-(2).            The Board lacks
     jurisdiction to review a notice of proposed removal; rather, the removal must
     have been effected before the Board has jurisdiction over an appeal of that action.


     4
       In his response to the agency’s motion to dismiss, the appellant asserts that the Board
     has jurisdiction pursuant to 5 C.F.R. § 1201.3(a)(9). IAF, Tab 15 at 3. The record,
     however, does not reflect that the appellant was ever found unsuitable, and we find this
     reference fails to constitute a nonfrivolous allegation of Board jurisdiction over a
     suitability action.
     5
        Although the initial decision indicates that the parties discussed the Board’s
     jurisdiction during a status conference, the administrative judge did not issue a written
     order memorializing this discussion or providing the appellant with notice of his
     jurisdictional burden. ID at 4; see Burgess v. Merit Systems Protection Board, 758 F.2d
     641, 643-44 (Fed. Cir. 1985) (stating that an appellant must receive explicit information
     on what is required to establish an appealable jurisdictional issue). Any error, however,
     was cured by the agency’s motion to dismiss and the initial decision, which provided
     the appellant with notice of the Board’s jurisdictional requirements. See Easterling v.
     U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008) (finding that an administrative
     judge’s failure to provide an appellant with proper Burgess notice can be cured if the
     agency’s pleadings contain the notice that was lacking or if the initial decision puts the
     appellant on notice of what he must do to establish jurisdiction, thus affording him the
     opportunity to meet his jurisdictional burden on review).
                                                                                       5

     See Mays v. Department of Transportation, 27 F.3d 1577, 1579 (Fed. Cir. 1994)
     (stating that the Board’s jurisdiction does not extend to proposed removals);
     Cruz v. Department of the Navy, 934 F.2d 1240, 1243 (Fed. Cir. 1991) (en banc)
     (noting that, “[b]ecause mere proposals to remove are not listed in [5 U.S.C.]
     § 7512, they are not appealable adverse actions in themselves and the Board has
     no jurisdiction over them”); Weber v. Department of the Army, 45 M.S.P.R. 406,
     409 (1990) (stating that a removal must have been effected before the Board has
     jurisdiction over that action). Although the appellant contends that the agency
     revoked his driving privileges and temporarily reassigned him from his position
     as a Letter Carrier, he does not contend that the agency has effected his removal.
     IAF, Tab 15 at 3; PFR File, Tab 1 at 1. Thus, we find that the administrative
     judge properly determined that the Board lacks jurisdiction over the appellant’s
     proposed removal.
¶9        An agency’s placement of an employee on enforced leave for more than
     14 days constitutes an appealable suspension within the Board’s jurisdiction.
     Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 10 (2014).          The Board,
     however, lacks jurisdiction over suspensions of 14 days or less.          See, e.g.,
     Engler v. Department of the Army, 121 M.S.P.R. 547, ¶¶ 6-9 (2014).          To the
     extent the appellant is alleging that he was forced to take 1.75 hours of sick leave
     on October 28, 2015, and he was placed on LWOP for 1 day on October 30, 2015,
     IAF, Tab 15 at 2, 14; PFR File, Tab 1 at 2, such assertions fail to constitute
     nonfrivolous allegations that he was suspended for more than 14 days. 6 5 U.S.C.
     § 7512(2); see Engler, 121 M.S.P.R. 547, ¶ 9.           We therefore affirm the



     6
       The appellant also asserts that he was placed on paid administrative leave from
     October 31, 2015, to February 5, 2016. IAF, Tab 15 at 2. However, it is well settled
     that the Board lacks jurisdiction over an agency’s decision to place an employee on
     administrative leave. See Henry v. Department of the Navy, 902 F.2d 949, 953-54
     (Fed. Cir. 1990); LaMell v. Armed Forces Retirement Home, 104 M.S.P.R. 413,
     ¶¶ 7, 9 (2007).
                                                                                         6

      administrative      judge’s      jurisdictional   dismissal    of   the   appellant’s
      suspension claim.
¶10         Finally, we find unavailing the appellant’s argument that the administrative
      judge improperly raised the issue of jurisdiction. PFR File, Tab 1 at 1. The issue
      of jurisdiction is always before the Board and may be raised at any time during a
      proceeding. Morgan v. Department of the Navy, 28 M.S.P.R. 477, 478 (1985). It
      is incumbent on the administrative judge to address jurisdiction sua sponte if
      there is reason to believe that jurisdiction might be an issue in the appeal. See
      Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 678 (1991). Therefore,
      it was entirely appropriate for the administrative judge here to raise the issue of
      jurisdiction sua sponte.
¶11         Accordingly, we conclude that the administrative judge properly dismissed
      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
      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).
                                                                                  7

      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 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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
