NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

06-3097 ANDREW B. SMITH, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

__________________________ DECIDED: June 9, 2006

__________________________

Before RADER, Circuit Judge , PLAGER, Senior Circuit Judge , and LINN, Circuit Judge

. PER CURIAM. Andrew B. Smith (“Smith”) appeals a decis ion of the Merit Systems Protection Board (“Board”), dismissing his appeal of hi s two separate 14-day suspensions for lack of jurisdiction. Smith v. United Stat es Postal Serv. , No. SF-0752-05-0583-I-1 (M.S.P.B. Nov. 21, 2005) (“Final Order”). We affirm

. BACKGROUND The United States Postal Service (“agency”) employed Smith as a mailhandler. On February 2, 2002, the agency suspended Sm ith for 14 days for failure to followinstructions. On March 9, 2002, the agen cy again suspended him for 14 days, this time for unacceptable conduct and failure to follow instructions. Subsequently, Smith was removed from his position effective November 18, 2002. Smith originally filed two complaints with the Equal Employment Opportunity Commission (“EEOC”) appealing the two suspens ions and his later removal by the agency. The EEOC, however, di smissed the two complaints on the basis that it lacked jurisdiction over so-called “mixed case co mplaints,” and the Board was the proper forum. In reaching his conclusion, the administrative judge of the EEOC stated that: The two complaints are rela ted, because the back-to-back disciplinary suspensions totaling 28 days (in this case) culminated in Smith’s removal (in the second case). I find that the 28-day suspensi on and the removal issues are appealable only to the [Board]. On April 22, 2005, Smith pet itioned the Board to review the February 2, 2002, and the March 9, 2002, 14-day suspension ac tions. Smith separately appealed his removal to the Board, and that appeal is not t he subject of the case before us here. In an initial decision, the Boar d dismissed Smith’s appeal of the two suspension actions, concluding that it lacked jurisdiction to re view an appeal of a suspension of 14-days or less, and that two such suspensions cannot be combined to confer Board jurisdiction. See Smith v. United States Postal Serv. , No. SF-0752-05-0583-I-1 (M.S.P.B. Aug. 19, 2005) (“Initial Decision”). The initial decision became the final decis ion of the Board after the Board denied Smith’s petition for review. See Final Order , slip op. at 1-2. Sm ith timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

06-3097 2DISCUSSION A. Standard of Review Our review of the Board’s decision is lim ited by statute. We may hold unlawful and set aside any agency action, findings, or conclusions found to be (1) arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordance with law; (2) obtained without procedures requir ed by law, rule or regulation having been followed; or (3) unsupported by substantial evidenc e. 5 U.S.C. § 7703(c) (2000); Chase-Baker v. Dep’t of Justice , 198 F.3d 843, 845 (Fed. Cir. 1999). Whether the Board has jurisdiction over an appeal is a question of la w, which we review de novo

. Hayes v. United States Postal Serv. , 390 F.3d 1373, 1376 (Fed. Cir. 2004). B. Analysis The jurisdiction of the Board is not plenary but is limited to actions made appealable to it by law, rule, or regulation. 5 U.S.C. § 7701(a) ( 2000). The Board does not possess jurisdiction over an appeal of a su spension for 14 days or less. 5 U.S.C. § 7512; 5 C.F.R. § 1201.3a(a)(2); Synan v. Merit Sys. Prot. Bd. , 765 F.2d 1099, 1101 (Fed. Cir. 1985) (holding that the Board lacks jurisdiction over a suspension of 14 days or less). On appeal, Smith argues that the Board err ed in holding that it lacked jurisdiction because he was suspended twice for 14 days and the aggregate of the suspensions totaled more than 14 days ( i.e. , 28 days). Smith further cont ends that the statements by the administrative judge of t he EEOC in his dismissal order support combining the two suspensions into a single suspension action. We disagree.

06-3097 3Smith was subjected to two separate di sciplinary suspensions of 14 days each. The first suspension, issued on February 2, 2002, resulted from Smith’s failure to follow instructions; the second, issued a month later on March 9, 2002, was a result of unacceptable conduct and failure to follow inst ructions. Arguing in support of Board jurisdiction, Smith principally relies on t he statements made by t he EEOC administrative judge. Smith’s reliance on these statements is misplaced. The administrative judge in the context of dismissing the two cases—one involving the two suspensions and the other involving the subsequent removal action— indicated that the suspensions and the re moval action were related, and the two suspensions totaled 28 days. He went on to refer to the suspensions as “back-to-back” and concluded that the suspension and remova l cases were “appealable only to the Board.” The statement by the administrative judge that the two suspensions and the removal action were related correctly reflec ts that both complaints presented “mixed cases” but is of no consequenc e on the question of Board jurisdiction. The further statement by the administrat ive judge that the two 14-day suspensions “totaled” 28 days is also correct but cannot alter the fact that the suspensions arose out of separate infractions, were imposed on separate dat es, and extended over non-overlapping periods. “Because these two suspensi ons arose out of separate events and circumstances, they cannot be combined to constitute a single suspension for the purpose of determining jurisdiction.” Jennings v. Merit Sys. Prot. Bd. , 59 F.3d 159, 161 (Fed. Cir. 1995). The administrat ive judge thus was incorrect both in characterizing the suspensions as “back-to-back” and in concl uding that they were appealable to the Board.

06-3097 4We have considered Smith’s other arguments and contenti ons, and do not find them to be relevant to the issue of Board jurisdiction. CONCLUSION For the foregoing reasons, the Board’s di smissal of Smith’s appeal for lack of jurisdiction is affirmed. COSTS No costs.

06-3097 5