UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANN MARIE DUNCAN,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

DC-752S-14-0506-I-1

DATE: August 18, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Ann Marie Duncan, Riverdale, Maryland, pro se.

Lorna J. Jerome, Esquire, Washington, D.C., 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 her appeal of a 5-day suspension 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 occupied a competitive service position of program analyst, 

GS-0343-13, with the United States Coast Guard. Initial Appeal File (IAF), 

Tab 1 at 1, 8. On March 6, 2014, the agency notified the appellant of its decision 

to suspend her for 5 calendar days, effective March 10, 2014, for failure to follow 

instructions. Id. at 8-9.

¶3 On March 11, 2014, the appellant timely filed her appeal, arguing that the 

agency failed to follow agency policy and the master labor agreement. Id. at 6. 

The appellant also indicated that she was serving a probationary period. Id. at 1. 

In his acknowledgment order, the administrative judge stated that the Board may 

not have jurisdiction over suspensions of 14 days or less and he ordered the 

appellant to file evidence and argument to prove that the action was within the 

Board’s jurisdiction. IAF, Tab 2 at 2-3. The administrative judge also stated that 

the Board may lack jurisdiction over an appeal by a probationary employee absent 

certain circumstances. Id. at 3-5. The administrative judge afforded the appellant 

an opportunity to file evidence or argument showing that her appeal should not be 

dismissed for failure to make a nonfrivolous allegation of jurisdiction, id. at 5, 

but the appellant’s only subsequent submission filed below did not address the 
3

jurisdictional questions, IAF, Tab 3. The agency moved to dismiss the appeal for 

lack of jurisdiction on the ground that the appellant elected to appeal her 

suspension through the agency’s grievance process pursuant to the collective 

bargaining agreement before she filed her Board appeal. IAF, Tab 5 at 7.

¶4 The administrative judge dismissed the appeal for lack of jurisdiction, 

without holding the requested hearing. IAF, Tab 6, Initial Decision (ID). In his 

initial decision, the administrative judge discussed the jurisdictional issues 

presented by both the appellant’s status as a probationary employee and the 

length of the suspension. ID at 2-3.

¶5 In her timely filed petition for review, 2 the appellant explains for the first 

time that her appeal was based on a Uniformed Services Employment and 

Reemployment Rights Act (USERRA) filing, number DC-2014-0006-30-V. PFR 

File, Tab 1 at 1. She states that she received the suspension 2 days after the 

Department of Labor issued some sort of notice regarding the USERRA matter.3

 

Id. The appellant did not address the administrative judge’s finding that the 

Board lacked jurisdiction over her appeal because she was a probationary 

employee and because she was suspended for less than 14 days. Id. The agency 

did not respond to the petition for review. See PFR File.

¶6 The Board’s jurisdiction is not plenary; it 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). Suspensions of more 

than 14 days are within the Board’s jurisdiction under 5 U.S.C. §§ 7512(2) and

 2 On May 3, 2014, the appellant filed a pleading titled “Appellant Response to Initial 

Order.” Petition for Review (PFR) File, Tab 1. The Clerk of the Board properly 

docketed the pleading as the appellant’s petition for review. See 5 C.F.R. 

§ 1201.114(a)(1) (a petition for review is a pleading in which a party contends that an 

initial decision was incorrectly decided in whole or in part); PFR File, Tab 2, at 1.

3 In her initial appeal, the appellant did not mention USERRA, and, in her response to 

the acknowledgment order, she only stated that she received the suspension 2 days after 

the Department of Labor issued some sort of notice regarding the USERRA matter. 

IAF, Tabs 1, 3. 
4

7513(d). However, a suspension of 14 days or less is not an appealable action. 

Lefavor v. Department of the Navy, 115 M.S.P.R. 120, ¶ 5 (2010); Stewart v. 

Department of Defense, 82 M.S.P.R. 649, ¶ 15 (1999).

¶7 In her petition for review, the appellant does not allege any error in the 

administrative judge’s decision to dismiss the appellant’s appeal for lack of 

jurisdiction based on the length of the suspension. See PFR File, Tab 1. Based 

on our review of the record, we discern no error in the administrative judge’s 

decision. ID at 3; see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) 

(finding no reason to disturb the administrative judge’s findings where the 

administrative judge considered the evidence as a whole, drew appropriate 

inferences, and made reasoned conclusions); Broughton v. Department of Health 

& Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

¶8 Regarding the appellant’s status as a probationary employee, as the 

administrative judge correctly explained, an individual serving in her 

probationary period may appeal a termination for reasons arising prior to the 

employee’s appointment if it was not effected in accordance with 5 C.F.R. 

§ 315.805, or a termination for post-appointment reasons if it is based on partisan 

political reasons or marital status. ID at 2; 5 C.F.R. § 315.806(b)-(c); Merian v. 

Department of the Navy, 107 M.S.P.R. 221, ¶ 4 (2007). The appellant indicated 

on her appeal form that she was serving a probationary period, IAF, Tab 1 at 1, 

and, despite being informed of the jurisdictional issue and being afforded the 

opportunity to file evidence and argument sufficient to meet her burden to 

nonfrivolously allege that she had Board appeal rights, IAF, Tab 2 at 3-5, the 

appellant failed to respond. The appellant does not raise this matter in her 

petition for review.

¶9 The appellant also indicated on her appeal form that she had 4 years of 

government service, IAF, Tab 1 at 1, which could suggest that she was not a 
5

probationary employee. We need not resolve this issue, however, because it is 

clear that the Board lacks jurisdiction over an appeal of a 5-day suspension. 4

¶10 In sum, we find that the administrative judge properly dismissed the 

appellant’s appeal for lack of jurisdiction. As discussed above, in her petition for 

review, the appellant states, for the first time, her apparent desire to file an appeal 

under USERRA. PFR File, Tab 1. Accordingly, we forward this matter to the 

Washington Regional Office for the docketing of a new USERRA appeal. See 

Maibaum v. Department of Veterans Affairs, 116 M.S.P.R. 234, ¶ 20 (2011) 

(forwarding a USERRA claim to the regional office for docketing).

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).

 4 Because the administrative judge dismissed the appeal for lack of jurisdiction on other 

grounds, it was within his discretion not to address the agency’s alternative argument 

raised below that the appeal should be dismissed based on the appellant’s election of 

remedies. See Wagner v. Environmental Protection Agency, 51 M.S.P.R. 337, 352 

(1991), aff’d, 972 F.2d 1355 (Fed. Cir. 1992) (Table) (an administrative judge need not 

cite every possible alternative basis for the disposition of an appeal, when the basis that 

he does cite suffices as legal support for his decision).
6

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 

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board