                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ROBERT J. REPETTO,                              DOCKET NUMBER
                   Appellant,                        PH-0752-14-0458-I-1

                  v.

     DEPARTMENT OF                                   DATE: February 6, 2015
       TRANSPORTATION,
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Robert J. Repetto, Sewell, New Jersey, pro se.

           Christian Lewerenz, Esquire, Jamaica, New York, 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 his appeal of his enforced leave between January 6, and 10, 2014, 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

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     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         The appellant currently serves as an Air Traffic Control Specialist with the
     Federal Aviation Administration assigned to the Wilmington, Delaware Air
     Traffic Control Tower. Initial Appeal File (IAF), Tab 3, Subtab 4f. By way of
     letter dated January 2, 2014, the agency informed the appellant not to report to
     duty during the week of January 6-10, 2014, because of a lack of available tasks
     for him to perform. IAF, Tab 3, Subtab 4d. On January 10, 2014, the agency
     issued the appellant a notice of proposed enforced leave based on the continued
     unavailability of work for him to perform either within his facility or within the
     local commuting area, and the agency issued a letter of decision subsequently
     imposing the enforced leave period effective February 10, 2014.           See MSPB
     Docket No. PH-0752-14-0759-I-1, Initial Appeal File (0759 IAF), Tab 1 at 7-12,
     13-17. 2
¶3         The appellant filed separate Board appeals challenging both periods of
     enforced leave. The administrative judge joined the appeals and issued an initial
     2
      The agency placed the appellant in a paid, nonduty pay status prior to the imposition
     of the second enforced leave period. 0759 IAF, Tab 1 at 9.
                                                                                               3

     decision dismissing the appeal of the first period of enforced leave for lack of
     jurisdiction and sustaining the merits of the second period of enforced leave.
     IAF, Tab 13, Initial Decision (ID) at 6, 11. The appellant has filed a petition for
     review primarily challenging the administrative judge’s decision to sustain the
     second period of enforced leave effective February 10, 2014. See Petition for
     Review (PFR) File, Tab 1. Although the administrative judge joined the appeals
     prior to adjudication under 5 C.F.R. § 1201.36, we are SEVERING the processing
     of these appeals on review; the instant Order thus only addresses the period of
     enforced leave between January 6, and 10, 2014. 3
¶4         An employee’s absence for more than 14 days that results in a loss of pay
     may be a constructive suspension appealable under 5 U.S.C. §§ 7512(2) and
     7513(d).    Zygas v. U.S. Postal Service, 116 M.S.P.R. 397, ¶ 16 (2011).                The
     Board, however, lacks jurisdiction over suspensions of less than 14 days. See,
     e.g., Engler v. Department of the Army, 121 M.S.P.R. 547, ¶¶ 6-7 (2014). Here,
     there is no dispute that the appellant was required to use his leave between
     January 6, and 10, 2014. See IAF, Tab 3, Subtab 4a at 39, Subtab 4d. This 5-day
     period of enforced leave, however, falls below the 14-day threshold needed to
     establish the Board’s jurisdiction over an enforced leave action.                       See
     Engler, 121 M.S.P.R. 547, ¶ 6; 5 U.S.C. § 7512(2). We therefore AFFIRM the
     administrative judge’s jurisdictional dismissal of the appellant’s appeal of his
     enforced leave between January 6, and 10, 2014. 4




     3
      The second period of enforced leave effective February 10, 2014, is addressed in
     MSPB Docket No. PH-0752-14-0759-I-1.
     4
       In his in itial appeal, the appellant also suggested that he was subjected to a prohibited
     personnel practice. See IAF, Tab 1. Absent circumstances which are not present here,
     an allegation of a prohibited personnel practice cannot independently establish the
     Board’s jurisdiction. Pridgen v. Office of Management and Budget, 117 M.S.P.R. 665,
     ¶ 7 (2012).
                                                                                  4

                 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.
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
                                                                           5

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.
