Thorne v. MSPB , 681 F. App'x 923 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
OTIS THORNE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1040
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-16-0089-I-1.
______________________
Decided: March 10, 2017
______________________
OTIS THORNE, District Heights, MD, pro se.
KATHERINE MICHELLE SMITH, Office of the General
Counsel, Merit Systems Protection Board, Washington,
DC, for respondent. Also represented by BRYAN G.
POLISUK.
______________________
Before MOORE, O’MALLEY, and HUGHES, Circuit Judges.
PER CURIAM.
2 THORNE v. MSPB
Petitioner Otis Thorne (“Thorne”) seeks review of a fi-
nal decision of the Merit Systems Protection Board (“the
Board”) dismissing his appeal for lack of jurisdiction.
Thorne v. Dep’t of Defense, No. DC-3443-16-0089-I-1, 2016
MSPB LEXIS 5153 (M.S.P.B. Sept. 1, 2016) (“Final Deci-
sion”). For the reasons explained below, we affirm.
BACKGROUND
Thorne is employed as a Nursing Assistant for the
Department of Defense (“the agency”) at Fort Belvoir,
Virginia. On September 13, 2015, the agency placed
Thorne on administrative leave while it investigated an
allegation that Thorne sexually assaulted a United States
Navy sailor. Thorne v. Dep’t of Defense, DC-3443-16-0089-
I-1, 2016 MSPB LEXIS 1070, at *1 (M.S.P.B. Feb. 24,
2016) (“Initial Decision”). That same day, Thorne’s su-
pervisor, Staff Sergeant Mohammed Sayeed (“SSG
Sayeed”) instructed him not to report to work. Id. Anoth-
er supervisor likewise informed Thorne to stay home and
told him that he would receive further instructions the
next day. Id. at *1-2.
From September 14 to September 18, 2015, Thorne’s
supervisors attempted to contact him, but he did not
respond. Id. at *2. On September 21, 2015, SSG Sayeed
sent Thorne a certified letter notifying him that he was
placed on administrative leave beginning September 13,
2015. Id. The letter stated that there would be no change
to Thorne’s pay or other benefits, but that he had to be
available by telephone during normal business hours. Id.
It also informed him that, “during this period of adminis-
trative leave, he must be available to meet with agency
officials as required and must contact his supervisor on
regular duty days, that he could request leave, and that
his failure to follow these instructions could result in
formal disciplinary action.” Final Decision, 2016 MSPB
LEXIS 5153, at *3. The certified letter was returned to
THORNE v. MSPB 3
the agency as “unclaimed.” Id. Thorne did not contact his
supervisors as instructed.
On October 5, 2015, the agency sent Thorne a certified
letter instructing him to return to duty immediately. Id.
In that letter, the agency explained that Thorne stopped
communicating with his supervisors and that he had not
requested leave or provided any documentation regarding
his continued absence. Id. at *3-4. The letter informed
Thorne that the agency placed him in Absent Without
Leave (“AWOL”) status as of October 4, 2015, and that
failure to return to work by October 16, 2015, or to comply
with the requirements of the letter, might result in disci-
plinary action. Id. at *4. That letter was also returned as
“unclaimed,” and Thorne failed to contact his supervisor.
Id. His timecards were marked AWOL beginning on
October 17, 2015. Id.
On October 28, 2015, Thorne appealed to the Board,
alleging that the agency placed him on administrative
leave in retaliation for whistleblowing activity. Id. The
administrative judge issued an order informing Thorne of
his burden of proof and explaining what he needed to
allege to establish jurisdiction over his individual right of
action (“IRA”) appeal. Id. at *4-5. Thorne responded “by
essentially asserting an involuntary suspension claim.”
Initial Decision, 2016 MSPB LEXIS 1070, at *3. The
administrative judge held a telephonic status conference
to discuss Thorne’s claims. During that conference, the
administrative judge explained the procedure for estab-
lishing Board jurisdiction. Id. at *4. The administrative
judge then issued an order explaining the procedure for
asserting an involuntary or constructive suspension
claim. Final Decision, 2016 MSPB LEXIS 5153, at *5. In
response, Thorne submitted a copy of a January 2016
letter from the agency, authorizing and directing him to
take administrative leave, and explaining the require-
ments for doing so. Id.
4 THORNE v. MSPB
The administrative judge issued an initial decision
dismissing Thorne’s appeal for lack of jurisdiction without
a hearing on February 24, 2016. The administrative
judge found that Thorne failed to establish Board jurisdic-
tion over his constructive suspension appeal because he
failed to show that his absence was involuntary. Initial
Decision, 2016 MSPB LEXIS 1070, at *5-6. In reaching
this conclusion, the administrative judge considered
documents the agency submitted detailing its attempts to
contact Thorne and to notify him to return to work. Id. at
*6. With respect to the whistleblower retaliation claim,
the administrative judge found that Thorne failed to
prove that he administratively exhausted his claim before
the Office of Special Counsel and further failed to nonfriv-
olously allege that he made a protected disclosure. Id. at
*7-8.
Thorne filed a petition for review, requesting that the
Board reconsider the initial decision solely with respect to
his constructive suspension claim. Final Decision, 2016
MSPB LEXIS 5153, at *9, n.6 (“The appellant does not
challenge on review the administrative judge’s finding
that he failed to establish the Board’s jurisdiction over his
IRA appeal, and we find no basis to disturb the adminis-
trative judge’s finding.”). On September 1, 2016, the
Board issued a final decision denying Thorne’s petition.
The Board explained that Thorne’s claim was dismissed
on jurisdictional grounds because he failed to make a
nonfrivolous allegation that he was actually or construc-
tively suspended. Id. at *6-7. The Board noted that, with
the exception of six days for which he took annual and
sick leave, Thorne was on paid administrative leave until
the agency placed him on AWOL status due to his failure
to comply with the agency’s instructions to remain in
contact with his supervisor. Id. at *8. Had Thorne com-
plied with those instructions, he would have remained in
a paid duty status pending the outcome of the investiga-
tion. Id. Given these circumstances, the Board found
THORNE v. MSPB 5
that his placement on AWOL was not a constructive
suspension or other agency action appealable to the
Board. Id. Because Thorne failed to nonfrivolously allege
that he was constructively suspended, the Board found
that the administrative judge did not err in deciding the
case on the written record without a hearing. Id. at *9.
Accordingly, the Board affirmed the administrative
judge’s initial decision dismissing Thorne’s appeal for lack
of jurisdiction.
Thorne timely appealed to this court. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a decision
of the Board is limited. We must affirm the Board’s
decision unless it is “(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); Fields v. Dep’t
of Justice, 452 F.3d 1297, 1301 (Fed. Cir. 2006). Whether
the Board has jurisdiction to adjudicate an appeal is a
question of law, which we review de novo. Parrott v.
Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008).
We are bound by the Board’s jurisdictional fact findings
“unless those findings are not supported by substantial
evidence.” Rosario-Fabregas v. Merit Sys. Prot. Bd., 833
F.3d 1342, 1345 (Fed. Cir. 2016) (quoting Bolton v. Merit
Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998)).
The appellant bears the burden of establishing the
Board’s jurisdiction by a preponderance of the evidence.
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1328
(Fed. Cir. 2006) (en banc). An appellant is not entitled to
a jurisdictional hearing absent a nonfrivolous allegation
that, if proven, could establish the Board’s jurisdiction.
Id. at 1325. In determining whether the claimant has
made a nonfrivolous allegation of jurisdiction, the admin-
6 THORNE v. MSPB
istrative judge may consider the agency’s documentary
submissions, as long as the administrative judge does not
weigh the evidence or resolve disputed issues without a
hearing. Smirne v. Dep’t of the Army, 115 M.S.P.R. 51, 54
(2010) (citing Ferdon v. United States Postal Serv., 60
M.S.P.R. 325, 329 (1994)).
The Board’s jurisdiction is not plenary, but is limited
to those matters over which it has been given jurisdiction
by law, rule, or regulation. Johnston v. Merit Sys. Prot.
Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). Relevant to this
appeal, the Board has jurisdiction over suspension claims
if the suspension exceeds 14 days. 5 U.S.C. § 7512. A
“suspension” is defined as “the placing of an employee, for
disciplinary reasons, in a temporary status without duties
or pay.” 5 U.S.C. §§ 7511(a)(2), 7501(2). We have recog-
nized that, even if an employee has not been formally
suspended, certain personnel actions that result in the
loss of duties and pay may constitute a “constructive
suspension,” which is within the Board’s jurisdiction.
Perez v. Merit Sys. Prot. Bd., 931 F.2d 853, 855 (Fed. Cir.
1991).
On appeal, Thorne argues that the Board has jurisdic-
tion over his appeal because his placement on administra-
tive leave on September 13, 2015 amounted to a
constructive suspension. As the Board explained, howev-
er, the agency placed Thorne on paid administrative leave
beginning on September 13, 2015. Initial Decision, 2016
MSPB LEXIS 1070, at *2. We have expressly recognized
that placement on paid administrative leave does not
constitute an actual or constructive suspension. Henry v.
Dep’t of Navy, 902 F.2d 949, 954 (Fed. Cir. 1990) (finding
that a petitioner who was placed on paid administrative
leave was not suspended, and there was “no adverse
action from which the petitioner can appeal to contest her
placement on administrative leave”); see also Kenney v.
Merit Sys. Prot. Bd., 356 F. App’x 394, 396 (Fed. Cir.
2009) (affirming the Board’s decision that it lacked juris-
THORNE v. MSPB 7
diction over a claim of constructive suspension because a
period of paid administrative leave does not qualify as a
constructive suspension). Thorne therefore cannot appeal
his placement on paid administrative leave to the Board.
See Henry, 902 F.2d at 954; LaMell v. Armed Forces Ret.
Home, 104 M.S.P.R. 413, 416 (M.S.P.B. 2007) (“A period of
paid administrative leave is not appealable to the
Board.”). 1
To the extent Thorne argues that the agency’s deci-
sion to transfer him from administrative leave to AWOL
status amounted to a constructive suspension, we disa-
gree. As previously discussed, the agency transferred
Thorne to AWOL status because he failed to comply with
the agency’s instructions to communicate with his super-
visors during his period of administrative leave. Final
Decision, 2016 MSPB LEXIS 5153, at *3-4. Placement on
AWOL status, by itself, is not an appealable adverse
action, as it does not fall under any of the categories of
adverse actions set forth in 5 U.S.C. § 7512. See Perez,
931 F.2d at 855 (“We hold that in a situation such as this,
where an employee has voluntarily absented himself from
work, placement in a non-pay or AWOL status, even for
longer than 14 days, is not a constructive suspension or
other agency action appealable to the [Board].”). The
Board has recognized, however, that employee-initiated
leaves of absence may be appealable as constructive
suspensions where the appellant alleges that: (1) he
lacked a meaningful choice in the matter; and (2) it was
1 To the extent Thorne claims that he was suspend-
ed as a result of enforced leave usage, the Board found
that his combined annual and sick leave use during the
pay period ending on October 3, 2015 was only 48 hours,
well short of the 15 days required to establish Board
jurisdiction. Final Decision, 2016 MSPB LEXIS 5153, at
*8. We find no error in that decision.
8 THORNE v. MSPB
the agency’s wrongful actions that deprived him of that
choice. Romero v. U.S. Postal Serv., 121 M.S.P.R. 606,
610 (M.S.P.B. 2014) (citing Bean v. U.S. Postal Serv., 120
M.S.P.R. 397, 401 (M.S.P.B. 2013)); see Rosario-Fabregas,
833 F.3d at 1346-47 (holding that the Board’s standard
for establishing jurisdiction in constructive suspension
cases, as set forth in Romero, is appropriate).
Thorne has not alleged that he lacked a meaningful
choice between remaining on administrative leave or
being placed on AWOL. Nor does he allege that the
agency deprived him of that choice. As the Board ex-
plained, had Thorne complied with the agency’s instruc-
tions, “he would have remained in a paid duty status,
albeit at his home, pending resolution of the agency’s
investigation into his conduct.” Final Decision, 2016
MSPB LEXIS 5153, at *8. Thorne’s failure to remain in
contact with the agency and comply with its instructions
was his choice, and voluntary employee actions are not
within the Board’s jurisdiction. Starkey v. Dep’t of the
Navy, 198 F.3d 851, 853 (Fed. Cir. 2000) (“Voluntary
employee actions are not within the jurisdiction of the
[Board].”). Under these circumstances, we agree with the
Board that Thorne’s placement on AWOL status is not a
constructive suspension within the Board’s jurisdiction.
On appeal, Thorne asserts that the administrative
judge “resolved disputed issue [sic] of fact that should
have gone to hearing.” Pet’r Informal Br. ¶ 5. Thorne
does not identify the disputed issue or issues of fact to
which he refers. To the extent he refers to the issue of
whether he received notice to return to work, the Board
did not rely on that issue in rendering its decision. In-
stead, as indicated, the Board relied on the agency’s
stated explanation for placing him on AWOL status,
which was his refusal to communicate with his supervi-
sors while on administrative leave. Final Decision, 2016
MSPB LEXIS 5153, at *8. Because Thorne failed to
provide any evidence rebutting the agency’s submissions
THORNE v. MSPB 9
on this issue, which included a signed statement from
SSG Sayeed regarding his attempts to reach Thorne, the
Board did not improperly resolve any disputed issues of
fact. See Smirne, 115 M.S.P.R. at 54. 2
We agree with the Board that Thorne failed to make a
nonfrivolous allegation that he was actually or construc-
tively suspended. Without any such allegations, the
Board correctly held that it lacked jurisdiction over
Thorne’s appeal. For these same reasons, the Board also
correctly concluded that Thorne was not entitled to a
jurisdictional hearing. See Garcia, 437 F.3d at 1325.
CONCLUSION
For the foregoing reasons, and because we find
Thorne’s remaining arguments are without merit, we
affirm the Board’s final decision dismissing his appeal for
lack of jurisdiction.
AFFIRMED
COSTS
No costs.
2 Thorne also asserts that the Board failed to con-
sider that he attempted to return to work voluntarily on
January 22, 2016, but the agency placed him on leave
without pay status. Pet’r Informal Br. ¶ 4. This allega-
tion is irrelevant to Thorne’s appeal to the Board, which
was filed in October 2015. To the extent Thorne is at-
tempting to assert a new claim for the first time on ap-
peal, we decline to consider it. In any event, Thorne
submitted to the Board a copy of the January 22, 2016
letter from the agency authorizing him to use administra-
tive leave beginning that date. Final Decision, 2016
MSPB LEXIS 5153, at *5. Despite Thorne’s suggestion
otherwise, the letter expressly stated that there would be
no change to his pay or other benefits. Resp’t App. 48.