# Judy Hartman v. Department of the Navy

> Merit Systems Protection Board · June 17, 2024

URL: https://www.frixlaw.com/law-library/cases/10034340

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** June 17, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

JUDY HARTMAN, DOCKET NUMBER
Appellant, DC-0353-18-0659-I-1

v.

DEPARTMENT OF THE NAVY, DATE: June 17, 2024
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Judy Hartman , Wedgefield, South Carolina, pro se.

Linda Banks , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous

1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify the jurisdictional analysis, we AFFIRM the initial decision.

BACKGROUND
The appellant was formerly employed as a Management Specialist in the
agency’s Naval Reserve Intelligence Command. Initial Appeal File (IAF), Tab 4
at 6-7. On September 12, 2008, the agency suspended her access to Sensitive
Compartmented Information (SCI) based on information it had received regarding
her mental and emotional stability. Id. at 8. At some point thereafter, the
appellant was indefinitely suspended from her position pending a decision by the
agency’s Central Adjudication Facility (DONCAF) regarding her eligibility for a
security clearance, access to SCI, and assignment to a sensitive position. Id. at
15. On July 8, 2009, DONCAF rendered a decision in the appellant’s favor, on
the condition that she continue taking medication as prescribed by her psychiatrist
and advise her command of any change in her diagnosis or treatment. Id. at 14.
Subsequently, on July 17, 2009, the agency sent a letter by Federal Express to the
appellant’s address of record, directing her to report for duty on July 27, 2009.
Id. The appellant did not respond to the letter or report for duty, and on
July 28, 2009, the agency sent a second letter, with return receipt requested,
3

directing her to report to work on August 3, 2009. Id. Again, the appellant did
not respond or return to duty. Id.
By notice dated August 14, 2009, the agency proposed to remove the
appellant for abandonment of her position. Id. at 15-16. The appellant provided
a written response, in which she acknowledged her failure to notify the agency of
her change of address. Id. at 17-18. On September 16, 2009, the agency notified
the appellant of its decision to remove her effective September 18, 2009. Id.
at 19-20.
On June 14, 2018, the appellant filed an appeal challenging her removal.
Hartman v. Department of the Navy, MSPB Docket No. DC-0752-18-0600-I-1,
Appeal File (0600 AF), Tab 1. In the course of that proceeding, she filed a
pleading, dated July 11, 2018, in which she asserted that she “was entitled to
restoration” under Swaney v. Department of the Army, 19 M.S.P.R. 440 (1984).
0600 AF, Tab 10; IAF, Tab 1. Swaney was also an appeal of a removal action, 2
and context suggests that the appellant was arguing that her removal should
be reversed, not that she had been denied restoration as the term is used in
5 C.F.R. part 353. Nonetheless, the administrative judge construed the
appellant’s claim as an alleged denial of restoration and docketed a separate
appeal, which is the case now before us. 0600 AF, Tab 11 at 2; IAF, Tab 1.
The administrative judge notified the appellant that the restoration appeal
appeared to be outside the Board’s jurisdiction and afforded her an opportunity to
submit evidence and argument on the issue. IAF, Tab 3. However, the
administrative judge did not state the current jurisdictional standard for
restoration appeals by partially recovered employees, as set forth in

2
The appellant in Swaney was separated based on the agency’s determination that he
had voluntarily abandoned his position. The presiding official reversed the action,
finding that the appellant did not voluntarily abandon his position and that the agency
failed to provide him the procedural protections mandated by law. The Board affirmed,
finding that, contrary to the agency’s assertions, the appellant’s separation was
involuntary because his absence was due to the need for medical treatment. Swaney,
19 M.S.P.R. at 442-43.
4

Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404, ¶ 12 (2016). The
administrative judge also did not address the jurisdictional standards applicable to
restoration appeals brought by fully recovered employees. IAF, Tab 3. The
appellant responded to the show cause order but did not allege that she was
denied restoration as an employee partially or fully recovered from a
compensable injury. IAF, Tabs 4, 7.
On August 13, 2018, the administrative judge dismissed the removal appeal
for lack of jurisdiction. 3 0600 AF, Tab 18. Subsequently, on August 31, 2018,
the administrative judge issued an initial decision dismissing the instant appeal
for lack of jurisdiction. IAF, Tab 17, Initial Decision (ID). In doing so, she
found that the appellant had failed to present evidence that her separation was due
to a medical condition or compensable injury. ID at 7.
On September 20, 2018, the appellant filed a petition for review, bearing
the docket number of the instant appeal. Petition for Review (PFR) File, Tab 1.
In her petition, she contested the administrative judge’s finding that she failed to
provide evidence she was absent due to a medical condition or a compensable
injury. Id. at 4. She pointed out that her psychiatric issues were the reason her
clearance was suspended in the first instance. Id. She further argued that, like
the appellant in Swaney, she did not voluntarily abandon her position. Id. The
agency filed a response, arguing in general terms that the appellant’s petition
does not meet the criteria for review. PFR File, Tab 3. On December 12, 2018,
after the close of the record on review, the appellant filed a reply to the agency’s

3
As the administrative judge observed, the definition of an “employee” with appeal
rights under 5 U.S.C. § 7511 excludes employees of an intelligence activity of a
military department covered under chapter 83 of title 10, with the exception of a
preference eligible employee in the excepted service who has completed 1 year of
current continuous service in the same or similar positions. 5 U.S.C. § 7511(b)(8); see
Rice v. Merit Systems Protection Board, 522 F.3d 1311, 1319 (Fed. Cir. 2008). The
record reflects that the appellant had an excepted service appointment under the
authority of 10 U.S.C. § 1601, which covers civilian intelligence personnel, and that she
was not preference eligible. IAF, Tab 4 at 6.
5

response. PFR, File, Tab 4. Unlike the September 20, 2018 submission, the reply
bears the docket number of the removal appeal. Id. at 4.
On December 13, 2018, the Clerk of the Board issued a notice requesting
that the appellant clarify whether she intended her September 20, 2018
submission as a petition for review in both the removal appeal and the restoration
appeal, or the restoration appeal only. PFR File, Tab 4. The appellant was
notified that if she did not respond to the notice on or before December 20, 2018,
her September 20, 2018 submission would be treated as a petition for review in
the restoration appeal only. Id. The appellant did not file a timely response.
Accordingly, we consider her September 20, 2018 submission as a petition for
review of the initial decision dismissing the restoration appeal.
On March 6, 2019, the Clerk issued a show cause order describing in full
the jurisdictional standards for appeals contesting a denial of restoration under
5 C.F.R. part 353. PFR File, Tab 6. The appellant was directed to clarify
whether she claimed to have been denied restoration as an employee fully
recovered within 1 year, an employee fully recovered after 1 year, or a partially
recovered employee, and to provide evidence and argument establishing that the
Board has jurisdiction over her appeal. Id. at 4. The order further stated that, if
possible, the appellant should provide correspondence with the Office of
Workers’ Compensation Programs (OWCP) establishing that she was awarded
compensation and, if her compensation was terminated, the date of termination.
Id. The appellant was also instructed to provide any documentation indicating
that the agency denied her restoration or failed to restore her properly, and any
relevant medical evidence concerning the extent of her recovery. Id. at 4-5.
In her response, the appellant asserts that she was entitled to restoration
under 5 C.F.R. § 353.301(a) because she “was fully capable, despite [her]
disability to assume [her] position within a year.” PFR File, Tab 7 at 4. She
further states that her termination was not voluntary. Id. She again states that
6

she is “entitled to restoration” under Swaney. 4 Id. The agency has also filed a
response, in which it observes that the appellant has not shown or alleged that her
disability was the result of a compensable injury. PFR File, Tab 8 at 4-5.

DISCUSSION OF ARGUMENTS ON REVIEW
Under the Federal Employees’ Compensation Act, 5 U.S.C. § 8151(b),
Federal employees who suffer compensable job-related injuries enjoy
certain rights to be restored to their previous or comparable positions. See
Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 9 (2016). Congress has
granted the Office of Personnel Management (OPM) the authority to issue
regulations governing the obligations of employing agencies in this regard.
5 U.S.C. § 8151(b). Pursuant to this authority, OPM has issued regulations
requiring agencies to make certain efforts toward restoring employees with
compensable injuries 5 to duty, depending on the timing and extent of their
recovery. 5 C.F.R. § 353.301; see Smith v. U.S. Postal Service, 81 M.S.P.R. 92,
¶ 6 (1999).
Under these regulations, an employee who fully recovers 6 from a
compensable injury within 1 year from the date eligibility for compensation
began is entitled to be restored immediately and unconditionally to her former
position or an equivalent one. 5 C.F.R. § 353.301(a). An employee whose full
recovery takes longer than 1 year from the date she became eligible for
compensation is entitled to priority consideration for restoration to the position
she left or an equivalent one, provided she applies for restoration within 30 days
4
The appellant also provides partial citations to two other cases, which appear to be
Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365 (2016), and Kitt v. Department of the
Army, 22 M.S.P.R. 32 (1984). Neither decision affects the outcome of this case.
5
The regulations define an “injury” as “a compensable injury sustained under the
provisions of 5 U.S.C. chapter 81, subchapter 1, [including], in addition to accidental
injury, a disease proximately caused by the employment.” 5 C.F.R. § 353.102.
6
An employee is considered fully recovered if compensation payments have been
terminated on the basis the employee is able to perform all the duties of the position she
left or an equivalent. 5 C.F.R. § 353.102(2).
7

of the cessation of compensation. 5 C.F.R. § 353.301(b). The regulations also
require that an agency must make every effort to restore in the local commuting
area, according to the circumstances in each case, an individual who has partially
recovered 7 from a compensable injury and who is able to return to limited duty.
5 C.F.R. § 353.301(d).
Although 5 U.S.C. § 8151 does not itself provide for an appeal right to the
Board, the regulation at 5 C.F.R. § 353.304 provides Board appeal rights to
individuals affected by restoration decisions under 5 C.F.R. § 353.301. These
appeal rights are also dependent to some degree on the timing and extent of
recovery. 5 C.F.R. § 353.304. The Board’s own regulations in turn provide that,
in order to establish jurisdiction over an appeal arising under 5 C.F.R. § 353.304,
an appellant must make nonfrivolous allegations 8 with regard to the substantive
jurisdictional elements. 5 C.F.R. § 1201.57(a)(4), (b). In accordance with these
regulations, the Board has determined that, depending on the timing and extent
of recovery, an appellant seeking to contest a denial of restoration under
5 C.F.R. part 353 must accomplish the following to establish the Board’s
jurisdiction.
In the case of an appellant who alleges that the agency denied her
restoration under 5 C.F.R. § 353.301(a) as an employee fully recovered within
1 year, the Board has jurisdiction if the appellant makes nonfrivolous allegations
that (1) she is an employee of an executive branch agency; (2) she suffered a
compensable injury; (3) she fully recovered from the compensable injury within 1
year from the date her eligibility for compensation began; (4) the agency failed to
7
Partially recovered employees are defined in as injured employees who, though not
ready to resume the full range of their regular duties, have recovered sufficiently to
return to part-time or light duty or to another position with less demanding physical
requirements. 5 C.F.R. § 353.102.
8
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that (1) is
more than conclusory, (2) is plausible on its face, and (3) is material to the legal issues
in the appeal. Id.
8

restore her or improperly restored her; and (5) if she was separated from her
position prior to the alleged failure to restore or improper restoration, her
separation was from a position without time limitation and substantially related to
the compensable injury. Steinmetz v. U.S. Postal Service, 106 M.S.P.R. 277, ¶ 7
(2007), aff’d, 284 F. App’x 805 (Fed. Cir. 2008). In the case of an appellant who
alleges the agency denied her restoration under 5 C.F.R. § 353.301(b) as an
employee fully recovered after 1 year, the appellant must make nonfrivolous
allegations that (1) she was separated because of a compensable injury; (2) she
fully recovered more than 1 year after the date she became eligible for OWCP
benefits; (3) she requested restoration within 30 days after the cessation of OWCP
compensation; and (4) the agency violated her reemployment priority rights in
denying her restoration. Payton v. Department of Homeland Security, 113
M.S.P.R. 463, ¶ 6, aff’d, 403 F. App’x 496 (Fed. Cir. 2010). Finally, an appellant
who alleges she was denied restoration as a partially recovered employee must
make nonfrivolous allegations that (1) she was absent from her position due to a
compensable injury; (2) she recovered sufficiently to return to duty on a part-time
basis, or to return to work in a position with less demanding physical
requirements than those previously required of her; (3) the agency denied her
request for restoration; and (4) the denial was arbitrary and capricious. Hamilton,
123 M.S.P.R. 404, ¶ 12.
The appellant has not established jurisdiction under any of these standards,
for the simple reason that she has not alleged at any point that she suffered a
compensable injury. Thus, the appeal was correctly dismissed for lack of
jurisdiction. We do not decide the question of whether the appellant, like the
appellant in Swaney, was separated involuntarily, as this issue is not pertinent to
the Board’s jurisdiction under 5 C.F.R. § 353.304.
9

NOTICE OF APPEAL RIGHTS 9
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).

9
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions to provide a comprehensive
summary of all available review options. As indicated in the notice, the Board cannot
advise which option is most appropriate in any matter.
10

If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
11

race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
12

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
13

Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10034340. Public record. Not legal advice.