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 decision of the Merit Systems Protection 

Board (“Board”), dismissing his appeal of his two separate 14-day suspensions for lack 

of jurisdiction. Smith v. United States 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 Smith for 14 days for failure to follow 
instructions. On March 9, 2002, the agency 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 suspensions and his later removal by the 

agency. The EEOC, however, dismissed the two complaints on the basis that it lacked 

jurisdiction over so-called “mixed case complaints,” and the Board was the proper 

forum. In reaching his conclusion, the administrative judge of the EEOC stated that: 

The two complaints are related, 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 suspension and the removal issues are 

appealable only to the [Board]. 

On April 22, 2005, Smith petitioned the Board to review the February 2, 2002, 

and the March 9, 2002, 14-day suspension actions. Smith separately appealed his 

removal to the Board, and that appeal is not the subject of the case before us here. In 

an initial decision, the Board dismissed Smith’s appeal of the two suspension actions, 

concluding that it lacked jurisdiction to review 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 decision of the Board after the Board denied 

Smith’s petition for review. See Final Order, slip op. at 1-2. Smith timely appealed. We 

have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

06-3097 2 
DISCUSSION 

A. Standard of Review 

Our review of the Board’s decision is limited by statute. We may hold unlawful 

and set aside any agency action, findings, or conclusions found to be (1) arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained 

without procedures required by law, rule or regulation having been followed; or (3) 

unsupported by substantial evidence. 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 law, 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 suspension 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 erred 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 contends that the statements by 

the administrative judge of the EEOC in his dismissal order support combining the two 

suspensions into a single suspension action. We disagree. 

06-3097 3 
Smith was subjected to two separate disciplinary 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 instructions. Arguing in support of Board 

jurisdiction, Smith principally relies on the statements made by the 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 removal 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 removal cases were “appealable only to the 

Board.” The statement by the administrative judge that the two suspensions and the 

removal action were related correctly reflects that both complaints presented “mixed 

cases” but is of no consequence on the question of Board jurisdiction. The further 

statement by the administrative 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 dates, and extended over non-overlapping 

periods. “Because these two suspensions 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 administrative judge thus was incorrect both in characterizing the 

suspensions as “back-to-back” and in concluding that they were appealable to the 

Board. 

06-3097 4 
We have considered Smith’s other arguments and contentions, and do not find 

them to be relevant to the issue of Board jurisdiction. 

CONCLUSION 

For the foregoing reasons, the Board’s dismissal of Smith’s appeal for lack of 

jurisdiction is affirmed. 

COSTS 

No costs. 

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