The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COLLETTE N. CURRY, DOCKET NUMBER
Appellant, AT-3443-25-0169-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 3, 2026
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Collette N. Curry , Daytona Beach, Florida, pro se.
Roderick Eves , Esquire, and Ayana Bowman , Esquire, St. Louis, Missouri,
for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons discussed below,
we GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the Atlanta Regional Office for further adjudication in
accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant is a nonpreference-eligible City Carrier for the agency.
Initial Appeal File (IAF), Tab 1 at 6, Tab 6 at 60. She filed a complaint with the
agency’s equal employment opportunity office alleging that, beginning on
March 28, 2024, the agency “sent [her] home due to no work being available,”
which the agency accepted as timely. IAF, Tab 2 at 2. According to the Postal
Service Form 50 (PS-50) documenting that action, the appellant was placed in a
status of “[leave without pay] (exceeding 30 calendar days),” effective March 29,
2024. IAF, Tab 6 at 60. The PS-50 contains an Office of Workers’
Compensation Programs (OWCP) case number. Id. After receiving the final
agency decision, the appellant timely filed the instant mixed case appeal with the
Board challenging this action and requesting a hearing. IAF, Tab 1 at 6-7, Tab 2
at 2. Specifically, she alleged that she suffered an on-the-job injury and was able
to return to work with restrictions “up until [the agency] removed [her and her]
restrictions.” IAF, Tab 1 at 7. She also alleged she is “in disability now” and
receiving workers’ compensation benefits. Id. at 7, 9.
The administrative judge issued an acknowledgment order, stating that the
Board might lack jurisdiction over the appellant’s claim outside the context of an
Individual Right of Action (IRA) appeal, 2 a Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) appeal, or a Veterans Employment
Opportunities Act of 1998 (VEOA) appeal. IAF, Tab 3 at 3-4. He ordered her to
file evidence and argument on the jurisdictional issue. Id. at 4. The appellant did
not respond. The agency moved to dismiss the appeal for lack of jurisdiction.
IAF, Tab 6.
2
The administrative judge erred by suggesting in the acknowledgment order that the
appellant could establish jurisdiction over the appeal by raising a claim that the agency
retaliated against her for whistleblowing. IAF, Tab 3 at 2-3. U.S. Postal Service
employees, such as the appellant, cannot file IRA appeals seeking corrective action for
retaliation for whistleblowing. See Kapica v. U.S. Postal Service, 95 M.S.P.R. 556, ¶ 6
(2004).
3
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 7, Initial Decision (ID) at 1, 3. He found that the appellant’s appeal
concerning the agency’s decision to order her to stop performing her duties was
not within the Board’s adverse action jurisdiction and that the appellant failed to
identify any other basis for Board jurisdiction. ID at 2-3.
The appellant has filed a petition for review in which she reraises her
allegations that she suffered an on-the-job injury and that she had been
performing well on her route with light-duty restrictions until the agency removed
her from her route and placed her on OWCP. Petition for Review (PFR) File,
Tab 1 at 2. The appellant also alleges that “someone is putting [her] on the
clock,” which has resulted in her owing a debt to the agency, and that she lost
annual leave. Id. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
We find that the instant appeal must be remanded for further proceedings
under 5 U.S.C. § 7701 because it appears that the appellant may be attempting to
raise a restoration claim under 5 C.F.R. part 353, subpart C. An administrative
judge may dismiss an appeal for lack of jurisdiction only if the appellant has been
placed on specific notice of what must be shown or alleged to establish
jurisdiction, and the appellant fails to make the requisite showing or allegations.
See Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir.
1985). Here, the appellant’s initial appeal and PS-50 indicate that she is a
nonpreference-eligible U.S. Postal Service employee. IAF, Tab 1 at 6, Tab 6
at 60. However, the administrative judge’s acknowledgement order did not put
her on notice of the jurisdictional elements of an adverse action appeal under
39 U.S.C. § 1005(a)(4)(A)(ii). Additionally, although the appellant’s allegations
concern her absence from duty for a compensable injury, the administrative judge
did not put her on notice of the jurisdictional elements of a restoration claim. See
4
Kapica v. U.S. Postal Service, 95 M.S.P.R. 556, ¶ 8 (2004). The administrative
judge also did not provide the proper notices in the initial decision itself in order
to afford the appellant the opportunity to meet her jurisdictional burden on
review. See Milam v. Department of Agriculture, 99 M.S.P.R. 485, ¶ 10 (2005).
The statute that governs restoration to duty after a compensable injury is
5 U.S.C. § 8151. This statute has two distinct components. Gallo v. United
States, 529 F.3d 1345, 1348-49 (Fed. Cir. 2008). Subsection (a) provides that a
compensably injured individual who returns to Federal employment must receive
service credit “for the purposes of within-grade step increases, retention
purposes, and other rights and benefits based upon length of service” for the
entire amount of time that she was on the workers’ compensation rolls. 5 U.S.C.
§ 8151(a). Subsection (b) prescribes the efforts that an agency must undertake to
restore a compensably injured individual to duty once she has recovered from her
injury. 5 U.S.C. § 8151(b). In other words, the statute provides compensably
injured individuals both the right to be restored to duty and the right to receive
service credit for their time on the workers’ compensation rolls. The parameters
of these restoration rights are set out more fully in the implementing regulations
of the Office of Personnel Management (OPM), and they differ to some degree
depending on the timing and extent of the employee’s recovery. Hall v.
Department of the Navy, 94 M.S.P.R. 262, ¶ 17 (2003), modified on other
grounds by Welby v. Department of Agriculture, 101 M.S.P.R. 17, ¶¶ 14-15
(2006); 5 C.F.R. §§ 353.107, 353.301. OPM has also provided a regulatory right
of appeal to the Board for a denial of restoration or an “improper restoration,”
i.e., a restoration to duty without the proper service credit. These appeal rights
likewise differ depending on the timing and extent of the employee’s recovery.
Hall, 94 M.S.P.R. 262, ¶ 18; 5 C.F.R. § 353.304. In this case, it is not clear
whether the appellant is attempting to appeal a denial of restoration, an improper
restoration, or both.
5
The appellant appears to argue that the agency wrongfully terminated an
earlier restoration or should have restored her to duty because she had recovered
sufficiently to perform work with less demanding physical requirements. IAF,
Tab 1 at 7; PFR File, Tab 1 at 2; see 5 C.F.R. § 353.102 (defining “partially
recovered”). The Board has held that wrongfully terminating a restoration
previously granted may constitute a denial of restoration within the meaning of
5 C.F.R. § 353.304(c). Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶ 13 n.6.
Also, an unreasonable delay in restoring an employee to duty may be tantamount
to a denial of restoration. Taylor v. U.S. Postal Service, 69 M.S.P.R. 479, 483
(1996). Thus, to the extent that the appellant is attempting to appeal a denial of
restoration as a partially recovered individual, she may establish jurisdiction over
her appeal by making 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.
Cronin, 2022 MSPB 13, ¶ 12. 3
The appellant can also establish Board jurisdiction over a denial of
restoration claim as a physically disqualified individual. She may establish
jurisdiction over such an appeal by making nonfrivolous allegations that: (1) she
was absent from her position due to a compensable injury; (2) she was
“physically disqualified” within the meaning of 5 C.F.R. § 353.102; (3) she
requested restoration within 1 year of the date of her eligibility for workers’
compensation benefits; and (4) the agency failed to afford her the restoration
3
A denial of restoration is arbitrary and capricious for purposes of section 353.304(c)
only if an agency fails to meet its obligation under section 353.301(d), i.e., to search
within the local commuting area for vacant positions to which it can restore a partially
recovered employee and to consider her for any such vacancies. Cronin, 2022 MSPB
13, ¶ 20.
6
rights set forth in 5 C.F.R. § 353.301(c). See Gerdes v. Department of the
Treasury, 89 M.S.P.R. 500, ¶¶ 6-13 (2001).
To the extent that the appellant is attempting to appeal an improper
restoration, i.e., a restoration to duty without full service credit for time spent on
the workers’ compensation rolls, the Board has jurisdiction to determine whether
an agency has fully provided a restored employee with the independent
restoration rights to which she is entitled under 5 U.S.C. § 8151(a). Gallo,
529 F.3d at 1350-52; McFarlane v. U.S. Postal Service, 110 M.S.P.R. 126, ¶ 18
(2008). To establish jurisdiction over such a claim, an appellant must make
nonfrivolous allegations that: (1) the agency restored her to duty following a
separation or absence due to a compensable injury; and (2) the agency failed to
afford her service credit as required under 5 U.S.C. § 8151(a) and 5 C.F.R.
§ 353.107. See McFarlane, 110 M.S.P.R. 126, ¶¶ 18-19.
In this case, it appears based on the appellant’s allegations on review that
she may be seeking credit for annual leave that would have accrued if she had
remained in a work or paid leave status during the period that she was on leave
without pay and receiving workers’ compensation. PFR File, Tab 1 at 2. This is
not the sort of service credit that is contemplated in 5 U.S.C. § 8151(a).
“Although the rate at which a Federal employee accumulates annual and sick
leave depends on his or her length of service, an employee’s basic entitlement to
such leave does not.” Burtch v. U.S. Postal Service, 47 M.S.P.R. 518, 521, aff’d,
949 F.2d 404 (Fed. Cir. 1991) (Table). Furthermore, the appellant’s receipt of
workers’ compensation benefits does not create an exception to the general rule
that annual leave does not accrue during extended periods of leave without pay.
See id. at 521-22; 5 C.F.R. § 630.208. Nevertheless, because this pro se
appellant’s pleadings are not entirely clear, and because she did not previously
receive notice of her jurisdictional burden, she will have an opportunity to clarify
her claims and establish jurisdiction on remand.
7
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.