The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NORKHAM SYAVONG, DOCKET NUMBER
Appellant, SF-0353-13-0602-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: October 10, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Zepuor Parsanian, Tujunga, California, for the appellant.
Aaron Goben, Long Beach, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision that
dismissed the appellant’s restoration appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only when: 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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. See 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, and based on the following
points and authorities, 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 and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The nonpreference-eligible appellant is a City Carrier. Initial Appeal File
(IAF), Tab 1 at 1. In March 2012, the Office of Workers’ Compensation
Programs (OWCP) accepted his claim for an occupational disease. IAF, Tab 6
at 34. In June 2012, the agency provided the appellant with a modified
assignment (limited duty) that provided for 1 hour of casing mail daily, which he
accepted. Id. at 9. In November 2012, at the request of the Department of Labor,
a physician conducted a Second Opinion Examination and Work Capacity
Evaluation of the appellant and concluded that the appellant was capable of
performing his usual job without any limitations. Id. at 16-33. OWCP proposed
terminating the appellant’s compensation based on that examination, although the
parties indicate that OWCP has not issued a decision on that proposal. Id. at 12;
Petition for Review (PFR) File, Tab 1 at 3, Tab 3 at 8.
¶3 The appellant’s treating physician, Edward Mittleman, M.D., subsequently
prepared a CA-17 Duty Status Report on June 20, 2013, identifying certain work
3
limitations, which he attributed to the appellant’s “c/s disc syndrome.” 2 IAF,
Tab 1 at 8. Specifically, Dr. Middleman indicated that the appellant was still
injured but could: (1) sit as required; (2) lift 25 pounds continuously; (3) lift and
carry 35 pounds intermittently; and (4) bend, stoop, and twist for 3½ hours per
day intermittently. IAF, Tab 1 at 8.
¶4 A few days later, the agency issued a new modified assignment,
limited-duty job offer. Id. at 7. The offer was for 8 hours of work per day as a
City Carrier, with duties requiring 1 hour of casing mail for delivery and 7 hours
of delivering mail. Id. The work required the physical ability to lift up to
25 pounds continuously, lift 35 pounds intermittently, simple grasping (8 hours),
intermittent reaching above the shoulder, standing, and walking (8 hours),
intermittent bending and twisting of neck (3½ hours), and driving a vehicle
(7 hours). Id. The appellant refused the new job offer stating that it involved
“more than 3½ hours of bending, twisting, and stooping.” Id. After the appellant
refused the offer, the agency advised him, on June 26, 2013, not to report to duty
unless he decided to accept the most recently offered modified assignment
limited-duty offer or he received notification that a revised modified assignment
was available. 3 IAF, Tab 6 at 8.
¶5 The appellant filed a restoration appeal with the Board, raising a claim of
prohibited discrimination and requesting a hearing on his appeal. IAF, Tab 1
at 1-2, 4. The administrative judge dismissed the appellant’s restoration appeal
for lack of jurisdiction without holding the requested hearing. IAF, Tab 25,
Initial Decision (ID) at 2, Tab 1 at 2. The administrative judge found that the
2
Dr. Mittleman was referring to the appellant’s cervical spondylosis, which is one of
the conditions identified in the claim accepted by OWCP that resulted in the appellant’s
June 26, 2012 modified assignment for limited duty. IAF, Tab 6, at 9, 34.
3
After the appellant filed his restoration appeal, the agency asked OWCP to issue a
ruling on whether the agency’s job offer was suitable. IAF, Tab 13 at 7, 10. However,
the parties indicate that OWCP has not issued a suitability ruling. PFR File, Tab 1 at 2,
Tab 3 at 8.
4
appellant made nonfrivolous allegations that he was absent from work due to a
compensable injury, that he had recovered sufficiently to return to work and
perform in modified positions, but that the Board had no jurisdiction over his
appeal because he failed to nonfrivolously allege that the agency denied his
request for restoration. ID at 9-10, 14. The administrative judge found that the
appellant failed to make a nonfrivolous allegation that the agency’s limited-duty
offer on June 25, 2013, was so unreasonable as to constitute a denial of
restoration. ID at 12. The administrative judge also found that the appellant
failed to make a nonfrivolous allegation that the agency rescinded his former
restoration job assignment when it offered him a full-time limited-duty position
consistent with his revised medical restrictions. ID at 13. The administrative
judge concluded that the appellant’s complaints merely challenged the details and
circumstances of the agency’s restoration. ID at 14.
¶6 Based on her finding that the appellant did not make a nonfrivolous
allegation that the agency denied him restoration, the administrative judge did not
consider whether the agency acted arbitrarily and capriciously concerning the
appellant’s request for restoration. ID at 14. The administrative judge also found
that, without jurisdiction over the restoration appeal, the Board had no
jurisdiction to consider the appellant’s claim of prohibited discrimination. ID
at 14. The appellant filed a petition for review and the agency responded in
opposition to his petition. PFR File, Tabs 1, 3.
¶7 An individual who has partially recovered from a compensable injury may
appeal to the Board for a determination of whether the agency is acting arbitrarily
and capriciously in denying restoration. Paszko v. U.S. Postal Service,
119 M.S.P.R. 207, ¶ 8 (2013) (citation omitted); 5 C.F.R. § 353.304(c). In order
to establish jurisdiction over a restoration appeal as a partially-recovered
individual, the 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
5
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. See Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097,
1104 (Fed. Cir. 2011); see also Latham v. U.S. Postal Service, 117 M.S.P.R. 400,
¶ 10 (2012). If the appellant makes nonfrivolous allegations to support
jurisdiction, then and only then will he be entitled to a jurisdictional hearing at
which he must prove jurisdiction by preponderant evidence. Bledsoe, 659 F.3d
at 1102.
¶8 The parties do not dispute the administrative judge’s finding that the
appellant satisfied the first two jurisdictional elements. ID at 9-10; PFR File,
Tab 3; see Bledsoe, 659 F.3d at 1104. Thus, the issue before the Board on review
is whether the appellant made nonfrivolous allegations, which, if proven, could
establish that the agency denied his request for restoration and that the denial of
restoration was arbitrary and capricious. See Bledsoe, 659 F.3d at 1102, 1104.
The Board has ruled that a job offer may be tantamount to a denial of restoration
if the offered duties are outside the employee’s medical restrictions. See Foley v.
U.S. Postal Service, 90 M.S.P.R. 206, ¶ 6 (2001). Here, the administrative judge
found that the arguments made by the appellant’s representative were not
evidence, and that the appellant “submitted no medical progress notes, no
clarification of the limitations by Dr. Mittleman, and no declaration from the
appellant describing how his limitations should be interpreted, or supporting his
contention that the agency’s limited duty job offer was unreasonable.” ID at 11
(citing Frye v. U.S. Postal Service, 102 M.S.P.R. 695, ¶ 11 (2006)); see PFR File,
Tab 1.
¶9 On review, the appellant reiterates the argument he made on appeal that the
agency’s June 25, 2013 modified job assignment offer was unreasonable because
6
it exceeded the scope of his medical limitations. 4 IAF, Tab 5 at 1-2; PFR File,
Tab 1 at 2-3. The appellant also argues that the administrative judge erroneously
found that he could drive intermittently for 8 hours a day based on
Dr. Mittleman’s June 20, 2013 CA-17 Duty Status Report. PFR File, Tab 1 at 2.
The appellant states that “at no point” in his June 20, 2013 assessment did
Dr. Mittleman ever indicate or consider that the appellant could drive for 8 hours.
Id. The appellant also disputes the administrative judge’s finding that
Dr. Mittleman, in evaluating the appellant’s limitations, “was aware of the
physical movements required to drive including movements of the neck.” Id.
¶10 To make a nonfrivolous allegation of jurisdiction based on the allegation
that the agency’s job offer was so unreasonable that it amounted to a denial of
restoration, the appellant is required to “present specific, independent evidence
corroborating his allegations.” Foley, 90 M.S.P.R. 206, ¶ 6. Despite the
appellant’s arguments to the contrary, none of the duties or physical requirements
identified in the agency’s June 25, 2013 modified job assignment offer exceed the
medical restrictions identified by Dr. Mittleman in his June 20, 2013 CA-17 Duty
Status Report. See PFR File, Tab 1; IAF, Tab 1 at 7-8. Although the CA-17 form
included a box for specifying driving limitations, Dr. Mittleman left that box
blank. IAF, Tab 1 at 8. Moreover, as stated previously, the appellant’s
November 2012 Work Capacity Evaluation indicated that he was capable of
performing his usual job without any limitations. 5 IAF, Tab 6 at 16, 28-29,
32-33. On review, the appellant has failed to present any specific independent
evidence corroborating his allegation that the agency’s June 25, 2013 modified
4
Because OWCP has not made a determination on the medical suitability of the
agency’s June 25, 2013 job offer, the Board is free to consider the reasonableness of the
agency’s job offer to determine if it amounted to an effective denial of restoration. See
Ballesteros v. U.S. Postal Service, 88 M.S.P.R. 428, ¶ 9 (2001).
5
The agency also submitted a September 3, 2013 sworn declaration by the agency’s
Manager of Health and Resource Management, stating that OWCP had not compensated
the appellant since June 29, 2012, for claims related to his restoration appeal. IAF,
Tab 12 at 8-9.
7
assignment job offer exceeded his medical limitations or to identify any such
evidence in the record. 6 See Foley, 90 M.S.P.R. 206, ¶ 6.
¶11 We therefore agree with the administrative judge’s finding that the
appellant failed to make a nonfrivolous allegation that the agency’s June 25, 2013
modified assignment limited-duty offer was so unreasonable as to constitute a
denial of restoration. ID at 10-11. Without sufficient allegations that the agency
denied the appellant’s request for restoration, we need not consider whether the
appellant made a nonfrivolous allegation that the agency acted arbitrarily and
capriciously in denying the restoration request. See Bledsoe, 659 F.3d at 1104;
see also Latham, 117 M.S.P.R. 400, ¶ 10. We have considered the remainder of
the appellant’s arguments on review, asserting that the administrative judge
abused her discretion and challenging the factual and legal bases for her decision
on appeal, and we find them to be without merit. 7 See PFR File, Tab 1 at 1-3.
6
In September 2013, OWCP informed the appellant that it had assigned him to a referee
physician, who would resolve the conflict between the opinions of Dr. Mittleman and a
different doctor regarding whether the appellant currently had a work-related condition
and the ability to work a full-duty job. IAF, Tab 14 at 5. OWCP stated that it would
issue a decision on the appellant’s entitlement to compensation after it received the
referee’s report; however, neither party has submitted the final OWCP decision on the
compensation issue. Id.; see PFR File, Tab 1 at 2, Tab 3 at 8. Although the appellant
argues that it is relevant that OWCP referred him to a referee physician, this evidence is
not new because it is already part of the record. See Meier v. Department of the
Interior, 3 M.S.P.R. 247, 256 (1980). Moreover, the appellant does not explain why the
mere fact that OWCP referred him to a referee physician is of sufficient weight to
warrant an outcome different from that of the initial decision dismissing his restoration
appeal for lack of jurisdiction. See Russo v. Veterans Administration, 3 M.S.P.R. 345,
349 (1980).
7
For example, the appellant makes a cursory argument that the administrative judge
erroneously considered the Latham case in her initial decision; however, the basis for
his argument is unclear and we discern no error on review. See PFR File, Tab 1 at 1, 3.
8
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
9
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.