Comulada v. Department of the Army

49 F. App'x 890

• Court: Court of Appeals for the Federal Circuit
• Decided: October 2, 2002
• Docket: No. 02-3288
• Status: Published

Opinion

ORDER

PROST, Circuit Judge.

The Department of the Army moves to summarily affirm the decision of the Merit Systems Protection Board dismissing Chris E. Comulada’s appeal for lack of jurisdiction. Comulada has not responded and the Army states that Comulada “does not oppose the submission of this motion.”

Comulada sought review of the Army’s imposition of a 5-day suspension for failure to supervise a subordinate employee. Because “[tjhere is no statutory or regulatory authority under which the Board may exercise jurisdiction over an appeal from a suspension of 14 calendar days or less,” the administrative judge dismissed Comulada’s case for lack of jurisdiction, citing to 5 U.S.C. § 7503 and 5 C.F.R. § 752.203. Comulada petitioned for review.

The Army moves for summary affirmance. Summary affirmance of a case “is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists.” Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994) (summarily affirming the Court of Federal Claims’ dismissal of a complaint). We agree that the Board’s dismissal of Comulada’s appeal was correct and, indeed, mandated by statute and regulation. Because no substantial question exists regarding the outcome of the instant petition for review, the court summarily affirms the order of the Board.

Accordingly,

IT IS ORDERED THAT:

(1) The motion for summary affirmance is granted.

(2) Each side shall bear its own costs.