Brenda A. Jakes v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRENDA A. JAKES, DOCKET NUMBER

Appellant, AT-0752-14-0614-B-1

v.

DEPARTMENT OF DEFENSE, DATE: January 12, 2016

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Brenda A. Jakes, Phenix City, Alabama, pro se.

Cheryl Smith, Esquire, Peachtree City, Georgia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the remand initial decision,

which dismissed her appeal with prejudice for failure to prosecute. For the

reasons discussed below, we GRANT the appellant’s petition for review,

VACATE the remand initial decision, and REMAND the case to the regional

office for further adjudication in accordance with this 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

¶2 The facts of this case are set forth more fully in the Board’s prior Remand

Order. Jakes v. Department of Defense, Remand Order (Apr. 1, 2015) (Remand

Order). Briefly, the appellant was employed as a Custodial Worker with the

Department of Defense Education Activity at Loyd Elementary School, Fort

Benning, Georgia. Jakes v. Department of Defense, MSPB Docket No. AT-0752-

14-0614-I-1, Initial Appeal File (IAF), Tab 5 at 43, 139. Effective February 25,

2013, the agency removed the appellant from Federal service for physical

inability to perform the essential functions of her position. Id. at 39-40, 139, 148.

¶3 The appellant filed a Board appeal, and the administrative judge issued an

initial decision sustaining the agency’s removal action. IAF, Tab 1 at 18, Tab 11,

Initial Decision. The appellant filed a petition for review of the initial decision,

which culminated in the Remand Order. See Jakes v. Department of Defense,

MSPB Docket No. AT-0752-14-0614-I-1, Petition for Review File, Tab 1;

Remand Order. In pertinent part, the Board found that the appellant’s allegations

below should have placed the administrative judge on notice that she was

potentially alleging that the agency had violated her restoration rights. Remand

Order, ¶¶ 18-19. The Board remanded the appeal for the administrative judge to

provide the appellant with notice regarding the jurisdictional pleading

requirements of a restoration appeal and an opportunity to submit evidence and

argument on the issue of jurisdiction. Id., ¶¶ 18-20.

¶4 On remand, the administrative judge provided detailed notice regarding

what is necessary to establish jurisdiction over a restoration appeal as a fully

recovered, partially recovered, or physically disqualified employee, and ordered

the appellant to submit evidence and argument raising a nonfrivolous allegation

of jurisdiction. Jakes v. Department of Defense, MSPB Docket No. AT-0752-14-

0614-B-1, Remand File (RF), Tab 3. The appellant failed to respond to the order

by the deadline established by the administrative judge. RF, Tab 4 at 1.

Subsequently, the administrative judge issued a second order, which informed the

3

appellant that he would dismiss the appeal with prejudice for failure to prosecute

if she failed to respond to the prior order by May 11, 2015. Id. at 1-2.

¶5 On May 7, 2015, the appellant electronically filed a new appeal form,

attaching a pleading asserting that she underwent two surgical procedures and

that her doctor had released her to perform “clerical duties only back in

December 2014.” Remand Petition for Review (RPFR) File, Tab 1 at 1-5. She

further asserted that the agency had not identified any positions that she was

qualified to perform because she lacked “any administrative background.” Id.

at 5. Because the pleading was filed with a new appeal form, the Atlanta

Regional Office did not immediately forward it to the administrative judge.

RPFR File, Tab 2 at 1. On May 15, 2015, the administrative judge, who was

unaware of the appellant’s May 7 th filing, issued a remand initial decision

dismissing her appeal with prejudice for failure to prosecute. 2 RF, Tab 5,

Remand Initial Decision.

¶6 Approximately 3 weeks later, the Clerk of the Board informed the appellant

that her May 7, 2015 pleading had not been forwarded to the administrative judge

prior to the issuance of the initial decision and that the Board would docket the

pleading as a petition for review of the initial decision. RPFR File, Tabs 2-3.

Thereafter, the appellant filed a supplement to the petition for review, which

included, among other things, a November 3, 2014 functional capacity evaluation

(FCE) 3 indicating that the appellant had reached maximum medical improvement

and was restricted to sedentary work. RPFR File, Tab 4 at 24-36. The agency

responded to the petition for review, arguing that the appellant failed to raise a

2

After the initial decision was issued, the appellant resubmitted her May 7, 2015

pleading by facsimile, accompanied by copies of the administrative judge’s orders and

medical documentation. RF, Tab 7.

3

Although the FCE is dated November 3, 2014, it was signed by the appellant’s

physician on November 14, 2014. RPFR File, Tab 4 at 24, 28. Other documents in the

record alternatively refer to the FCE as being issued on November 3, 2014 and

November 14, 2014. Compare RPFR File, Tab 5 at 57, with id. at 64.

4

nonfrivolous allegation of jurisdiction over a restoration appeal and submitting a

considerable volume of evidence that was not included in the record below.

RPFR File, Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 We find that, because the pro se appellant made a good faith effort to

comply with the administrative judge’s second order, which the administrative

judge was unaware of until after the remand initial decision had been issued, the

appeal should not have been dismissed with prejudice for failure to prosecute. 4

Although she erroneously filed her response as a new appeal, unbeknownst to the

administrative judge, the appellant made an effort to comply with his second

order. RPFR File, Tab 1. The severe sanction of dismissal with prejudice for

failure to prosecute an appeal should not be imposed where a pro se appellant

appears to be confused by Board proceedings, or has made incomplete responses

to Board orders, but has not exhibited bad faith or evidenced any intent to

abandon her appeal. Chandler v. Department of the Navy, 87 M.S.P.R. 369,

¶ 6 (2000); Wright v. Department of the Treasury, 53 M.S.P.R. 244, 249 (1992). 5

Accordingly, we find that dismissal for failure to prosecute was not warranted

under the circumstances of this case.

¶8 Because we find that the appeal should not have been dismissed for failure

to prosecute, we must address the issue of the Board’s jurisdiction over the

appeal. See Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1102

(Fed. Cir. 2011) (discussing the two-step process for establishing Board

jurisdiction over restoration appeals). 6 The issue of jurisdiction is always before

4

On review, neither party addressed this issue. See RPFR File, Tabs 4-5.

5

Furthermore, although the appellant failed to respond to the administrative judge’s

first order, failure to obey a single order ordinarily does not justify dismissal for failure

to prosecute. See Chandler, 87 M.S.P.R. 369, ¶ 6.

6

Under Bledsoe, the U.S. Court of Appeals for the Federal Circuit held that to establish

jurisdiction over a restoration appeal as a partially recovered individual, the appellant

5

the Board and may be raised by either party or sua sponte by the Board at any

time during a Board proceeding. Lovoy v. Department of Health & Human

Services, 94 M.S.P.R. 571, ¶ 30 (2003). For the following reasons, we find that

the documents submitted by the agency in the first instance on review raise

questions regarding the Board’s jurisdiction that cannot be resolved based upon

the current record. See Baldwin v. Department of Veterans

Affairs, 109 M.S.P.R. 392, ¶¶ 11, 32 (2008) (holding that the Board may consider

the agency’s documentary submissions in determining whether an appellant has

made a nonfrivolous allegation of Board jurisdiction).

¶9 The Federal Employees’ Compensation Act and its corresponding

regulations at 5 C.F.R. part 353 provide that Federal employees who suffer

on-the-job compensable injuries enjoy certain rights to be restored to their

previous or comparable positions. 5 U.S.C. §§ 8101-8152, 8191-8193; Tat v. U.S.

Postal Service, 109 M.S.P.R. 562, ¶ 9 (2008); 5 C.F.R. § 353.103(b). In the

present case, it is undisputed that the appellant suffered a compensable injury and

that her separation from Federal service was a result of her compensable injury.

See RPFR File, Tab 5 at 10; see also Mims v. Social Security

Administration, 120 M.S.P.R. 213, ¶ 20 (2013) (listing among the jurisdictional

requirements for a claim of denial of restoration following partial recovery that

the appellant was absent from his position due to a compensable injury, he

recovered sufficiently to perform modified work, and his request to return was

denied); 5 C.F.R. § 353.301(c) (explaining the restoration rights of physically

must prove by preponderant evidence: (1) absence due to a compensable injury;

(2) sufficient recovery from the injury to return to duty on a part time basis or in a less

physically demanding position; (3) agency denial of a request for restoration; and

(4) denial of restoration rendered arbitrary and capricious. Bledsoe, 659 F.3d at 1104;

see Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012). Under the new

standard set forth in 5 C.F.R. § 1201.57, an appellant must make nonfrivolous

allegations with regard to the substantive jurisdictional elements. However, the new

“nonfrivolous allegation” standard applies only in cases filed on or after March 30,

2015, 80 Fed. Reg. 4489-01, 4489-01 (Jan. 28, 2015) (codified at 5 C.F.R. § 1201.57),

and is therefore inapplicable to this appeal.

6

disqualified individuals). The record reflects that the appellant received Office of

Workers’ Compensation Programs (OWCP) compensation benefits for her

shoulder injuries and that she was removed for physical inability to perform her

Custodial Worker position as the result of those injuries. IAF, Tab 5 at 39-40,

148-49, Tab 6 at 35; RPFR File, Tab 5 at 14, 20; see King v. Department of the

Navy, 90 M.S.P.R. 341, ¶ 6 (2001) (finding that a compensable injury is a medical

condition accepted by OWCP to be job-related and for which medical or monetary

benefits are payable from the Employees’ Compensation Fund).

¶10 However, under regulations issued by the Office of Personnel Management,

the appellant’s right to file a restoration appeal with the Board differs depending

on the extent and timing of her recovery from her compensable injury. See Dean

v. U.S. Postal Service, 115 M.S.P.R. 56, ¶ 9 (2010). In the case of a partially

recovered employee, i.e., one who cannot resume the full range of regular duties

but has recovered sufficiently to return to part-time or light duty or to another

position with less demanding physical requirements, 7 an agency must make every

effort to restore the individual to a position within her medical restrictions and

within the local commuting area. Mubdi v. U.S. Postal Service, 114 M.S.P.R.

559, ¶ 7 (2010); 5 C.F.R. §§ 353.102, 353.301(d). A partially recovered

employee may appeal to the Board only for a determination of whether the agency

was arbitrary and capricious in denying restoration. Urena v. U.S. Postal

Service, 113 M.S.P.R. 6, ¶ 9 (2009); 5 C.F.R. § 353.304(c).

¶11 In contrast, a physically disqualified employee is one who for medical

reasons is unable to perform the duties of her former or an equivalent position,

and whose condition is considered permanent with little likelihood for

improvement or recovery. 5 C.F.R. § 353.102. A physically disqualified

employee has agencywide rights to placement, as near as possible, in a position of

the same status and pay for 1 year from the time eligibility for injury

7

Ordinarily, it is expected that a partially recovered employee will fully recover

eventually. 5 C.F.R. § 353.102.

7

compensation begins. Kravitz v. Department of the Navy, 104 M.S.P.R. 483, ¶ 5

(2007); 5 C.F.R. § 353.301(c). After 1 year passes, the employee’s restoration

rights are equivalent to those of someone who is partially recovered or fully

recovered, as applicable. 5 C.F.R. § 353.301(c).

¶12 On the record before us, we cannot determine whether the appellant was a

physically disqualified or partially recovered employee at the time of her

restoration request. The evidence that the agency submits for the first instance on

review reflects that the appellant’s request for restoration has a complicated

history and that her level of recovery may have changed over time. See

RPFR File, Tab 5 at 14-85. For example, the agency submitted an August 1, 2014

job offer for a Custodial Worker position that it extended to the appellant, which

stated that the offer was based upon medical restrictions dated April 10, 2014. Id.

at 25. Those medical restrictions indicated that the appellant was unable to reach

above or with her left shoulder, and was limited to 3 hours per day of lifting a

maximum of 20 pounds with her left shoulder. Id. at 49. However, the appellant

rejected this offer, and in September 2014, OWCP determined that the April 10,

2014 medical restrictions were invalid because they were provided prior to a left

shoulder surgery that the appellant underwent in May 2014. Id. at 29, 50.

Subsequently, OWCP clarified that the August 1, 2014 job offer was not suitable,

and requested that the agency offer the appellant a position within the medical

restrictions of the November 3, 2014 FCE, which indicated that she was restricted

to sedentary work. RPFR File, Tab 4 at 25, 30, Tab 5 at 30, 64.

¶13 Furthermore, the record does not reflect when the appellant requested

restoration or when she became eligible for OWCP compensation, information

that may be crucial to a determination of whether she had restoration rights as a

physically disqualified employee when she first requested to return to work. See

Mendenhall v. U.S. Postal Service, 74 M.S.P.R. 430, 437-38 (1997) (finding that

an appellant’s right to restoration as a physically disqualified employee expired

1 year after he became eligible for injury compensation); 5 C.F.R. § 353.301(c).

8

Although the agency offered the appellant a Custodial Worker position in

August 2014, the record does not reflect when she made her restoration request

that culminated in this offer. RPFR File, Tab 6 at 25-27. In addition, although

the record on review contains a letter from the Department of Labor indicating

that the appellant began receiving OWCP compensation for wage loss effective

February 25, 2013, her injury occurred almost 1 year earlier, and thus, she also

may have been eligible for other forms of compensation beginning on an earlier

date. Id. at 20-22; see Leach v. Department of Commerce, 61 M.S.P.R. 8, 14

(1994) (finding that the date that an appellant became eligible for OWCP

compensation may have been earlier than the date that she received OWCP

benefits for wage loss); 20 C.F.R. § 10.5(a) (defining compensation under the

Federal Employees’ Compensation Act as including amounts paid out of the

Employees’ Compensation Fund for items such as medical treatment and medical

examinations conducted at the request of OWCP as part of the claims

adjudication process).

¶14 Accordingly, because we are unable to determine when the appellant

became eligible for OWCP compensation, when she requested restoration, and

whether she was partially recovered or physically disqualified at the time of her

request, it is unclear whether the agency afforded the appellant the restoration

rights to which she was entitled. On review, the agency submits an affidavit

indicating that it had searched vacancies in the Georgia/Alabama School District

between November 14, 2014 and May 15, 2015, and found that the appellant did

not meet the minimum qualification requirements for any of the vacancies. RPFR

File, Tab 5 at 83-85. However, if the appellant requested restoration within a

year of the date that she became eligible for OWCP compensation, and was a

physically disqualified employee at the time of her request, she would have been

entitled to agencywide consideration for vacancies for which she may have been

qualified. See 5 C.F.R. § 353.301(c); see also Hall v. Department of the

Navy, 94 M.S.P.R. 262, ¶¶ 25-26 (2003) (finding that an agency potentially

9

violated an appellant’s rights as a physically disqualified employee by failing to

consider him for vacancies for which he was qualified outside of the local

commuting area), modified on other grounds by Welby v. Department of

Agriculture, 101 M.S.P.R. 17, ¶ 15 (2006). Alternately, if the appellant was

partially recovered when she requested restoration, or more than a year had

passed since her eligibility for compensation, the agency may have been required

to consider her for vacancies for which she was qualified within the local

commuting area. See 5 C.F.R. § 353.301(c)-(d).

¶15 Therefore, because the evidence submitted by the agency on review raises

questions regarding the Board’s jurisdiction over this appeal, we remand the

appeal for the administrative judge to afford the parties an opportunity to submit

evidence and argument on the following issues: (1) when the appellant became

eligible for OWCP compensation; (2) when the appellant requested restoration;

(3) whether the appellant was a physically disqualified or partially recovered

employee at the time of her restoration request; and (4) what actions the agency

took in response to the appellant’s request for restoration. If the administrative

judge determines that the parties’ responses raise a nonfrivolous allegation of

jurisdiction over the appeal, he shall hold a jurisdictional hearing at which the

appellant must prove jurisdiction by preponderant evidence. See Bledsoe,

659 F.3d at 1102.

10

ORDER

¶16 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: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.