The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HOA LIEN, DOCKET NUMBER
Appellant, SF-0752-15-0282-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 21, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Zepuor Parsanian, Tujunga, California, for the appellant.
Nina Paul, Esquire, San Francisco, California, 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 his 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 the facts of the case; 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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. 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 appellant, a Distribution Clerk, suffered a compensable injury in 2005.
Initial Appeal File (IAF), Tab 8 at 65-68. On July 16, 2013, he contended that he
injured himself again while lifting a package. Id. at 64. He was subsequently
placed on a temporarily totally disabled (TTD) status by his treating physician
and remained off work until August 20, 2013, when he returned to work with
modified duties. IAF, Tab 4 at 1, Tab 6 at 23, 61-62.
¶3 On November 15, 2013, the agency issued the appellant a notice of removal
based on the charge of failure to follow instructions/unacceptable conduct. IAF,
Tab 8 at 31-41. In its notice, the agency specified that the appellant had filed a
Notice of Traumatic Injury and Claim for Continuation of Pay Compensation
asserting that on July 16, 2013, he had suffered an injury by lifting a package
weighing more than 5 pounds. Id. The agency stated that, in fact, the appellant
had not lifted anything weighing more than 4 pounds. Id. The agency also
specified that an investigation by the Office of the Inspector General (OIG) and a
detective from the California Department of Insurance revealed that the appellant,
while receiving workers’ compensation benefits for being on a TTD status due to
the alleged July 16, 2013 injury, regularly engaged in activities outside of his
supposed physical limitations. Id. Based on the OIG investigation, the
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appellant’s treating physician eliminated the appellant’s TTD designation, and he
returned to his modified duties. Id.
¶4 The appellant grieved the notice of removal and continued to work while
the grievance was pending until April 24, 2014, when he was arrested by OIG
agents and charged with felonies apparently related to the fraudulent claim for
workers’ compensation and incarcerated. IAF, Tab 4, Tab 8 at 20. Upon his
arrest, the agency placed him in nonduty status until his grievance was fully
adjudicated. IAF, Tab 8 at 20. The appellant was released from jail when he
posted bond on April 26, 2014. IAF, Tab 4 at 6-8.
¶5 He subsequently filed this appeal, contesting the November 15, 2013 notice
of removal, alleging that his placement on nonduty status was improper, and
asserting that the agency failed to restore him after he was released from jail on
April 26, 2014. 2 IAF, Tab 1. He also alleged that the agency committed
prohibited personnel practices. Id.
¶6 In the initial decision, the administrative judge subsequently dismissed the
appeal for lack of jurisdiction without holding a hearing. IAF, Tab 10, Initial
Decision (ID). In particular, he found that the appellant failed to nonfrivolously
allege Board jurisdiction over the notice of removal and the agency’s decision to
place him in an unpaid status on April 24, 2014, as adverse actions. ID at 5. The
administrative judge further found that the appellant failed to make a
nonfrivolous allegation that his placement on nonduty status was due to his
compensable injury, rather than due to his charged misconduct, arrest, and
incarceration. ID at 8. Thus, the administrative judge found that the Board
2
The appellant also alleged that the agency improperly failed to restore him based on a
partial day letter (PDL) that the agency issued him on December 18, 2013. On that
date, the agency sent the appellant home before he worked a full shift because it had no
work available within his restrictions. IAF, Tab 8. The administrative judge found
that, to the extent that the appellant wants to pursue the claim of failure to restore based
on the PDL, he must file a separate appeal with the Board. IAF, Tab 10, Initial
Decision at 4.
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lacked jurisdiction over the appeal. Id. Additionally, the administrative judge
found that, absent an appealable action, the Board did not have jurisdiction to
adjudicate the appellant’s allegation that the agency engaged in prohibited
personnel practices. Id.
¶7 In his petition for review, the appellant alleges that the administrative judge
erred in finding that his placement in a nonduty status was unrelated to his
compensable injury. 3 Petition for Review File, Tab 1. He also states that he is
still receiving workers’ compensation payments. 4 Id.
¶8 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
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. Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012). If
the appellant makes nonfrivolous allegations of jurisdiction regarding all four
prongs of the jurisdictional standard, he is entitled to a jurisdictional hearing. See
Paszko v. U.S. Postal Service, 119 M.S.P.R. 207, ¶ 8 (2013).
3
In his petition, the appellant represents that his criminal case has been dismissed.
However, the most recent submission regarding that case shows that it was dismissed
because the state was unable to proceed within the statutory time and that the state
would be refiling the case at a later time. IAF, Tab 4 at 24.
4
To the extent that the appellant is contending that the notice of removal and his
placement into an unpaid status on April 24, 2014, constitute appealable adverse
actions, the administrative judge correctly found that the Board lacks jurisdiction over
any such actions under 5 U.S.C. chapter 75. ID at 5. For a U.S. Postal Service
employee to appeal an adverse action under chapter 75, he must: (1) be a preference
eligible, a management or supervisory employee, or an employee engaged in personnel
work in other than a purely nonconfidential clerical capacity; and (2) have completed
1 year of current continuous service in the same or similar positions. Toomey v. U.S.
Postal Service, 71 M.S.P.R. 10, 12 (1996). The administrative judge found that the
appellant failed to satisfy the first jurisdictional requirement, and we discern no basis
for disturbing this finding on review.
5
¶9 Here, the appellant failed to make a nonfrivolous allegation that he was
absent from his position due to a compensable injury, the first prong of the
jurisdictional standard. The Board has held that an employee who was absent
from work for cause, rather than for reasons substantially related to his
compensable injury, is not entitled to restoration. Frye v. U.S. Postal
Service, 102 M.S.P.R. 695, ¶9 (2006); King v. Department of the
Navy, 90 M.S.P.R. 341, ¶ 8 (2001). A valid reason for placement in nonduty
status, unrelated to a compensable injury, precludes restoration rights. Mobley v.
U.S. Postal Service, 86 M.S.P.R. 161, ¶ 7 (2000). The appellant’s misconduct,
specified by the agency as alleged fraudulent receipt of workers’ compensation
benefits, was the cause of his placement in nonduty status, not his compensable
injury. Accordingly, we find that the administrative judge properly found that the
appellant failed to make a nonfrivolous allegation that he was absent from his
position as a result of a compensable injury and correctly dismissed the appeal for
lack of jurisdiction without holding a hearing. ID at 1, 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
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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 appeal to
the 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 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.