Don Edgar Burris, Petitioner, v. Social Security Administration, Department of Health & Humanservices, Respondent, 848 F.2d 1244 (Fed. Cir. 1988)

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U.S. Court of Appeals for the Federal Circuit - 848 F.2d 1244 (Fed. Cir. 1988) May 6, 1988

Before MARKEY, Chief Judge, RICH and MICHEL, Circuit Judges.



The decision of the Merit Systems Protection Board (board), in No. HQ75218710009, dismissing petitioner's complaint for lack of jurisdiction, is affirmed.


The Social Security Administration (agency) filed a complaint with the board for removal of petitioner, an administrative law judge. After the record had closed, petitioner filed a motion alleging that the agency had constructively suspended him by ordering him to vacate his office while he was on administrative leave pending resolution of his proposed removal.

The board treated the motion as a complaint in a new case and determined that petitioner failed to establish that the board had jurisdiction because the complaint was not within the statutory prohibition against suspending an administrative law judge except for good cause shown. See 5 U.S.C. § 7521. "Suspension" is defined at 5 U.S.C. § 7501(2) as "the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay." The board found that the agency had not constructively suspended petitioner because he was paid for the time he was on administrative leave.

Petitioner's arguments are little more than disagreement with the board's findings and a repetition of the charges made in his complaint. We have considered those arguments which address the issue of the board's jurisdiction and find them to be without merit. Specifically, petitioner has not shown any error in the board's finding that he was not constructively suspended.

Petitioner's additional arguments regarding disqualification of Administrative Law Judge Reidy and the motion to consolidate this case with the proposed removal action are adequately addressed in Judge Reidy's recommended decision which the board incorporated in its final decision.

We affirm the board's decision that it lacked jurisdiction over petitioner's complaint because it was not arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with law. See 5 U.S.C. § 7703(c).