The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THADDEUS A. KNIGHT, DOCKET NUMBER
Appellant, AT-0353-14-0002-I-1
v.
DEPARTMENT OF JUSTICE, DATE: September 29, 2014
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Thaddeus A. Knight, Coral Springs, Florida, pro se.
Jeannette Wise, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his restoration appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In a nonprecedential order in Knight v. Department of Justice, MSPB
Docket No. AT-0752-13-0332-I-1, Final Order (Sept. 24, 2013), the Board noted
that the appellant may be alleging in his petition for review that the agency
improperly restored him following partial recovery from a compensable injury,
and the Board forwarded that claim to the Atlanta Regional Office for docketing
as a new appeal. See Knight v. Department of Justice, MSPB Docket No.
AT-0353-14-0002-I-1, Initial Appeal File (IAF), Tab 1. This appeal followed.
Id.
¶3 In his response to the Acknowledgment Order, the appellant asserted that he
had recovered sufficiently to return to duty. IAF, Tab 3 at 4. In support of this
assertion, he produced documentation showing that the Office of Workers’
Compensation Programs (OWCP) contacted the agency on June 19, 2013, and
informed the agency that: (1) the appellant “was released to return to limited duty
work activities with permanent restrictions” based on an April 17, 2013 medical
evaluation; and (2) these work restrictions were “medically warranted.” Id.,
Attachment C. OWCP therefore requested that the agency “create a modified
work assignment” for the appellant. See id. The appellant also declared, under
penalty of perjury, that, on July 19, 2013, he sent an email to the agency
requesting restoration as a partially-recovered employee. See IAF, Tab 3 at
15-16. The record reflects that, on August 29, 2013, the agency informed the
appellant that it was “communicating” with OWCP regarding a July 22, 2013
medical evaluation as part of a directed second opinion orthopedic consultation,
and the agency stated that it would “utilize the results of this report to determine
available positions compatible with the medical restrictions articulated by the
orthopedic consultant.” IAF, Tab 3, Attachment D.
3
¶4 In a January 6, 2014 initial decision, the administrative judge dismissed the
appeal because the appellant failed to make a nonfrivolous allegation of
jurisdiction. See IAF, Tab 8, Initial Decision (ID). In pertinent part, the
administrative judge found that the appellant “should have know[n]” that he was
required both to request restoration and to allow the agency time to act upon that
request before filing an appeal. ID at 4. The administrative judge found that the
appellant’s new allegation of improper restoration raised before the full Board
was improper because he should have waited to see what decision the agency
might make in response to OWCP’s request. ID at 4. The administrative judge
noted that, given that the appellant previously failed a fitness-for-duty
examination, which required him to resign his position with the agency pursuant
to a settlement agreement, it was “perfectly reasonable for the agency to await the
findings of the appellant’s second opinion [orthopedic] consultation before
making a final decision on the appellant’s request for restoration.” ID at 5.
¶5 The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 3. On petition for review, the
appellant contends that the agency has a history of not restoring him, he was
entitled to discovery, the administrative judge improperly did not hold a hearing,
his appeal was not premature, and the Board has jurisdiction over the OWCP
request that the agency restore him. PFR File, Tab 1.
¶6 In order to establish jurisdiction under 5 C.F.R. § 353.304(c), an appellant
must prove by preponderant evidence that: (1) he was absent from his position
due to a compensable injury; (2) he 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 him; (3) the agency denied his
request for restoration; and (4) the denial was arbitrary and capricious because of
the agency’s failure to perform its obligations under 5 C.F.R. § 353.301(d).
Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1104 (Fed. Cir.
2011); Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012). If the
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appellant makes nonfrivolous allegations to support jurisdiction, then and only
then will he be entitled to a jurisdictional hearing at which time he must prove
jurisdiction by preponderant evidence. Bledsoe, 659 F.3d at 1102.
¶7 The appellant nonfrivolously alleged that he was absent from his position
due to a compensable injury and that he 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 him. The question before
us is whether the appellant nonfrivolously alleged that the agency denied his
restoration request and whether that denial was arbitrary and capricious.
¶8 The Board has determined that an agency’s “extreme and unexplained”
delay in satisfying its restoration obligations may constitute a denial of
restoration. Chen v. U.S. Postal Service, 114 M.S.P.R. 292, ¶ 11 (2010),
overruled on other grounds by Latham, 117 M.S.P.R. 400, ¶ 10. In the context of
addressing restoration appeals challenging the U.S. Postal Service’s
implementation of the National Reassessment Process, the Board has held that a
3-month delay between when the employee is placed off work and completion of
the district-wide search for work was not “very lengthy,” but a 7- or 8-month
delay was sufficiently extreme and unexplained as to be considered arbitrary and
capricious. Compare Chen, 114 M.S.P.R. 292, ¶ 11 (3-month delay), with Tram
v. U.S. Postal Service, 118 M.S.P.R. 388, ¶ 10 n.2 (2012) (8-month delay); see
Coles v. U.S. Postal Service, 118 M.S.P.R. 249, ¶ 9 (2012) (affirming the
administrative judge’s decision that a 7-month delay in conducting a search
constituted a “significant” delay).
¶9 Regardless of whether we use OWCP’s June 19, 2013 letter, or the
appellant’s July 19, 2013 email, as the date of the restoration request, 2 the
2
We do not consider OWCP’s April 18, 2013 correspondence to the appellant as the
date of the restoration request because, among other things, OWCP’s letter does not
include any discussion of the appellant’s medical restrictions. See IAF, Tab 3,
Attachment B.
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appellant has nonfrivolously alleged that the agency’s several-months-long delay
is extreme and unexplained. Thus, he has made a nonfrivolous allegation that the
denial of restoration was arbitrary and capricious. The record reflects that, 4-5
months after the restoration request, the agency filed a submission in which it
stated that it had not denied the request and it was “in the process of determining
the availability of positions” that were compatible with the appellant’s medical
restrictions. IAF, Tab 7 at 8 n.5. The initial decision was issued approximately
5-6 months after the restoration request was made, and the parties’ petition for
review submissions do not indicate that the agency has responded to the
appellant’s restoration request or if there was any activity in this regard.
¶10 We recognize that the agency may be justified in some delay, particularly in
light of the negative determination from the appellant’s prior fitness-for-duty
examination, the appellant’s subsequent resignation pursuant to a settlement
agreement, and the agency’s apparent need for additional information regarding
the nature of the appellant’s restrictions. See IAF, Tab 5, Subtabs 4a (the
settlement agreement resolving Knight v. Department of Justice, MSPB Docket
No. AT-0353-11-0958-I-1), 4b (the results of the fitness-for-duty examination),
4c (the appellant’s voluntary resignation paperwork); see also Hardy v. U.S.
Postal Service, 104 M.S.P.R. 387, ¶¶ 20-21 (concluding that, because the agency
“was faced with conflicting assessments of the appellant’s abilities, and there is
no indication that OWCP has made a final determination regarding the appellant’s
restrictions,” the agency’s decision to await OWCP’s final determination did not
constitute an arbitrary and capricious denial of restoration), aff’d, 250 F. App’x
332 (Fed. Cir. 2007). However, we do not agree with the administrative judge
that, 5-6 months after the restoration request was made, the appellant still should
have to “wait to see what decision the agency might make in response to OWCP’s
letter.” See ID at 4.
¶11 Therefore, given the limited evidence in the record, coupled with the
appellant’s burden to only make a nonfrivolous allegation of Board jurisdiction at
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this stage, we conclude that he has made a nonfrivolous allegation that the
agency’s delay was sufficiently extreme and unexplained as to constitute an
arbitrary and capricious denial of restoration. Accordingly, we remand the appeal
for a jurisdictional hearing. 3
ORDER
¶12 For the reasons discussed above, we REMAND this case to the regional
office for a jurisdictional hearing in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
3
To the extent that the appellant alleged below that he requested restoration as a
fully-recovered employee, see IAF, Tab 3 at 14-15 (referencing a May 17, 2013 email),
such a claim is not before the Board in this matter.