The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AYOKA B. MEDLOCK-NURSE, DOCKET NUMBER
Appellant, SF-3443-14-0679-I-1
v.
JUDICIAL BRANCH, DATE: May 20, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Ayoka B. Medlock-Nurse, Richmond, California, pro se.
Charlene Hardy, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her 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
interpretation of statute or regulation or the erroneous application of the law to
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 The appellant was employed in the excepted service as a Case Analyst for a
United States Bankruptcy Court until she was terminated, effective May 7, 2010,
after she was unable, due to her medical restrictions, to return to her position for
more than a year. Initial Appeal File (IAF), Tab 1 at 9, Tab 5 at 16. In 2014, the
appellant filed an appeal with the Board asserting that the agency improperly
failed to restore or reinstate her to duty following her recovery from a job-related
injury. 2 IAF, Tab 1. She did not request a hearing. Id. at 3.
¶3 The agency filed a motion to dismiss asserting, among other things, that the
appellant’s restoration appeal was barred by res judicata to the extent that it was
previously adjudicated under MSPB Docket No. SF-0752-13-0432-I-1. 3 IAF, Tab
2
The appellant also alleged that the agency incorrectly coded her Standard Form 50
notice of termination, but the administrative judge found that she did not provide a
basis for Board jurisdiction over such a claim. IAF, Tab 3 at 2, Tab 14, Initial Decision
(ID) at 4. On review the appellant does not challenge this finding and we see no reason
to disturb it.
3
Because we find that the Board lacks jurisd iction over the appellant’s appeal, it is
unnecessary to address whether res judicata would bar her current appeal. See Noble v.
U.S. Postal Service, 93 M.S.P.R. 693, ¶ 7 (2003) (the doctrine of res judicata is not
3
5 at 3, 5. Because it also appeared that the Board may not have jurisdiction over
the appeal, the administrative judge issued an order setting forth the requirements
to establish jurisdiction over a restoration appeal under 5 C.F.R. § 353.304. IAF,
Tab 10. The administrative judge also informed the appellant that there was a
question as to whether 5 C.F.R. § 353.304 applies to employees or former
employees of the judicial branch, and he afforded her an opportunity to submit
evidence and argument on the jurisdictional issues. IAF, Tab 10. The appellant
submitted a response. IAF, Tab 13.
¶4 Based on the record, the administrative judge dismissed the appeal for lack
of jurisdiction. ID. The administrative judge found that the appellant failed to
establish jurisdiction under 5 C.F.R. § 353.304(a) and (c), which he found applied
only to employees of the executive branch, not the judicial branch based on the
plain language of the regulation and its regulatory history. ID at 3-4. The
administrative judge further found that, because the appellant continued to
receive workers’ compensation, she was not “fully recovered” and thus failed to
establish jurisdiction under 5 C.F.R. § 353.304(b), which covers appeals by fully
recovered individuals. ID at 3.
¶5 The appellant has filed a petition for review in which she asserts generally
that the administrative judge erred in finding that she failed to establish
jurisdiction and that the administrative judge failed to provide her with proper
notice regarding her jurisdictional burden. 4 Petition for Review (PFR) File, Tab 4
at 6. The agency has not submitted a response to the appellant’s petition.
grounds upon which to dismiss an appeal for lack of jurisd iction but, rather, is a basis
to dismiss an appeal over which the Board has jurisdiction).
4
The appellant’s petition for review was untimely filed on January 11, 2015, over 2
months after the October 27, 2014 filing deadline. ID at 5; Petition for Review (PFR)
File, Tabs 4-5. She has filed a motion to waive the time lim it in the form of an affidavit
in which she asserts that good cause exists for her untimely filing because she was
hospitalized from September 26, 2014, to October 6, 2014, and subsequently was on
pain medications until December 18, 2014. PFR File, Tab 6. The record shows that she
filed a request for an extension of time on December 23, 2014, and when that request
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue before the Board. Burgess v. Merit
Systems Protection Board, 758 F.2d 641, 643–44 (Fed. Cir. 1985); Baldwin v.
Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 29 (2010). Here, the
administrative judge’s order and summary of status conference informed the
appellant that there was a question as to whether 5 C.F.R. § 353.304 provides
Board appeal rights to judicial branch employees and that, if it did, she would
need to establish certain jurisdictional elements regarding restoration rights by a
preponderance of the evidence. IAF, Tab 10. The administrative judge then
afforded the parties an opportunity to submit additional evidence on jurisdiction.
Id. The appellant complied with the order and submitted a response arguing that
5 C.F.R. § 353.304(c) extends appeal rights to federal employees outside of the
executive branch, including her. IAF, Tab 13 at 5. Thus, the appellant’s
argument that she was not provided proper jurisdictional notice is without merit. 5
¶7 Regarding the appellant’s argument that the administrative judge erred by
finding a lack of Board jurisdiction, the administrative judge correctly found that
claims of improper restoration or failure to restore following a compensable
injury are appealable to the Board under 5 C.F.R. § 353.304 only if the appellant
is an employee or former employee of an agency in the executive branch,
including the U.S. Postal Service and the Postal Rate Commission. ID at 3-4; see
was denied because it was submitted after the filing date, she filed her petition for
review on January 11, 2015. I d., Tabs 1-2, 4. In light of our disposition of this appeal,
we do not reach the issue of the timeliness of the appellant’s petition for review.
5
Even if the administrative judge’s order failed to put the appellant on sufficient notice
regarding the jurisdictional issues, the in itial decision clearly identified those issues and
the Board has held that any short-comings in the jurisdictional notice below can be
cured if the initial decision puts the appellant on notice of what she must do to establish
jurisdiction so as to afford her the opportunity to meet her jurisdictional burden on
petition for review. See Caracciolo v. Department of the Treasury, 105 M.S.P.R. 663,
¶ 11 (2007).
5
5 C.F.R. § 353.304. Persons employed or formerly employed by the judicial
branch, such as the appellant, are not covered. See 5 C.F.R. § 353.401 (a)(3)
(1987); 60 Fed. Reg. 45, 650, 657 (Sept. 1, 1995) (renumbering section 353.401
to 353.304 without substantive change); 53 Fed. Reg. 857 (Jan. 14, 1988)
(modifying section 353.401 to “clarify that employees of the legislative and
judicial branches do not have appeal rights to the MSPB”). The administrative
judge also correctly found that the appellant was not a fully recovered individual
and therefore the Board lacks jurisdiction under 5 C.F.R. § 353.304(b) and
5 C.F.R. § 302.501. See ID at 3 (citing McFarlane v. U.S. Postal Service,
110 M.S.P.R. 126, ¶ 15 (2008)).
¶8 In sum, the administrative judge correctly dismissed the appellant’s appeal
for lack of jurisdiction. Nothing in the petition for review shows error in the
administrative judge’s well-reasoned initial decision and there is no basis to
disturb it. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105–06 (1997)
(finding no reason to disturb the administrative judge’s findings where she
considered the evidence as a whole, drew appropriate references, and made
reasoned conclusions); see also Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
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.
6
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
information regarding pro bono representation for Merit Systems Protection
Board appellants before the Federal Circuit. The Merit Systems 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.