Background
Neil D. Surti, an electronics engineer employed by the Federal Aviation Administration, was placed on paid administrative leave after allegedly sending a threatening email to a supervisor and failing to attend an investigatory interview. After a separate 30-day unpaid suspension that was not at issue in this appeal, the agency again placed him on paid administrative leave beginning November 15, 2024.
Surti appealed to the Merit Systems Protection Board, arguing that his continued paid leave amounted to an appealable constructive suspension and that the agency acted in retaliation for protected whistleblowing. An administrative judge dismissed for lack of jurisdiction, finding that Surti had not alleged an unpaid absence or required use of accrued leave and had not nonfrivolously alleged protected whistleblower disclosures. The initial decision became the Board’s final decision when neither party sought full-Board review.
The Court’s Holding
The Federal Circuit affirmed. It held that placement on paid administrative leave is not an adverse action appealable to the Board under 5 U.S.C. § 7512 when the employee is not required to use sick or annual leave. Surti therefore failed to make a nonfrivolous allegation that his paid leave constituted a constructive suspension.
The court also upheld dismissal of Surti’s individual-right-of-action whistleblower claim. His discrimination complaint to the EEOC was not protected whistleblowing for purposes of IRA jurisdiction, and he supplied no information about the contents of his 2022 union grievance or 2024 investigatory interview from which the Board could determine that either involved a protected disclosure. Although paid administrative leave can qualify as a personnel action in an IRA case, Surti did not adequately allege the required protected activity.
Key Takeaways
- Paid administrative leave is not an appealable constructive suspension when the employee remains in paid status and is not required to use accrued leave.
- A discrimination grievance does not establish IRA jurisdiction unless it involves whistleblowing or a whistleblowing-related grievance.
- Conclusory references to a grievance or interview do not suffice; an employee must allege enough about the communication’s content to show a potentially protected disclosure.
Why It Matters
The nonprecedential decision reinforces the jurisdictional distinction between an appealable suspension and paid administrative leave. Lengthy or involuntary exclusion from duty does not alone make paid leave an adverse action under § 7512 when the employee loses no pay or accrued leave.
It also illustrates the pleading burden in an MSPB whistleblower case: identifying a workplace complaint, grievance, or interview is insufficient without facts showing that the employee disclosed conduct covered by the whistleblower-protection statute.