Paul Herring, Petitioner, v. Department of the Treasury, Respondent, 918 F.2d 186 (Fed. Cir. 1990)

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U.S. Court of Appeals for the Federal Circuit - 918 F.2d 186 (Fed. Cir. 1990) Oct. 11, 1990

Before PLAGER, Circuit Judge, EDWARD S. SMITH, Senior Circuit Judge, and LOURIE, Circuit Judge.



Paul Herring appeals the final decision of the Merit Systems Protection Board (MSPB), Docket No. CH122190W0058 (April 17, 1990), dismissing for lack of jurisdiction Mr. Herring's appeal of a one-day disciplinary suspension by the Internal Revenue Service. The suspension was based primarily on inappropriate, uncooperative and disruptive behavior at work. We affirm.


The jurisdiction of the MSPB is limited in scope to that granted by Congress. Wilson v. Merit Systems Protection Bd., 807 F.2d 1577, 1579 (Fed. Cir. 1986). This jurisdiction includes appeals of suspensions lasting more than 14 days. 5 U.S.C. § 7512(2). Thus, the MSPB does not have jurisdiction to hear an appeal of Mr. Herring's one day suspension. Synan v. Merit Systems Protection Bd., 765 F.2d 1099 (Fed. Cir. 1985).

Section 7(b) of the Whistleblower Protection Act of 1989 ("WPA"), Pub. L. No. 101-12, 1989 U.S.Code Cong. & Admin.News (103 Stat.) 16, 34, 5 U.S.C.A. Sec. 1201 note (West Supp.1990), provides that no provision of the WPA "shall affect any administrative proceeding pending at the time such provisions take effect." Because the proposed notice and effective date of Mr. Herring's suspension were before the effective date of the WPA, the suspension was "pending" at the time the WPA took effect. See 5 C.F.R. Sec. 1201.191(b) (2). Thus we do not need to consider whether the WPA would have any effect here on MSPB jurisdiction.

Mr. Herring attempts to raise a multitude of issues in this appeal. However, he has not pointed to any rule or provision which would grant jurisdiction to the MSPB over an appeal from his suspension.