The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2016 MSPB 26
Docket No. AT-0353-16-0120-I-1
Dannice E. Clark,
Appellant,
v.
United States Postal Service,
Agency.
July 12, 2016
Lorenzo Cobb, Esquire, Sugarhill, Georgia, for the appellant.
Earl L. Cotton, Esquire, and Kristen Walsh, Esquire, Atlanta, Georgia, for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant petitions for review of an initial decision that dismissed her
restoration appeal for lack of Board jurisdiction. For the reasons set forth below,
we DENY the petition for review. Except as expressly MODIFIED by this
Opinion and Order to apply the proper jurisdictional burden in restoration appeals
filed after March 30, 2015, we AFFIRM the initial decision.
2
BACKGROUND
¶2 The appellant is a Distribution Clerk for the U.S. Postal Service. Initial
Appeal File (IAF), Tab 1 at 2. She filed the instant appeal, alleging that the
agency improperly denied her restoration for a period of several months. Id. at 3.
¶3 Following the appellant’s initial pleading, the administrative judge issued
two orders. The first was an acknowledgment order, providing general
information, such as the procedures for engaging in discovery. IAF, Tab 2. The
second provided the jurisdictional burdens of proof for restoration claims and
directed the appellant to file argument and evidence to meet her jurisdictional
burden. IAF, Tab 3. After the appellant failed to respond within the allotted
time, the administrative judge dismissed the appeal for lack of jurisdiction,
without holding the requested hearing. IAF, Tab 1 at 2, Tab 5, Initial Decision
(ID). The appellant has filed a petition for review. 1 Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
1
The appellant attached a response to the administrative judge’s jurisdictional order to
her petition for review, Petition for Review (PFR) File, Tab 1 at 17-25, with
documentation pertaining to her requested restoration, id. at 10-16, 25-84. She claims
that she attempted to submit these materials below, after the record on jurisdiction
closed and the initial decision was issued. PFR File, Tab 1 at 3; IAF, Tab 3 at 9; ID.
The record reflects that the regional office rejected submissions from the appellant
received on December 28, 2015. IAF, Tab 7. The initial decision already had been
issued on December 17, 2015. IAF, Tab 6. Because there was no showing that the
arguments and evidence contained in these submissions were previously unavailable,
we will not consider them. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980) (explaining that the Board generally will not consider an argument raised for the
first time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence); Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980) (finding that, under 5 C.F.R. § 1201.115,
the Board will not consider evidence submitted for the first time with the petition for
review absent a showing that it was unavailable before the record was closed despite the
party’s due diligence).
3
ANALYSIS
The appellant’s pro forma allegations failed to satisfy her jurisdictional burden.
¶4 The appellant suggests that she did meet her jurisdictional burden, despite
failing to respond to the administrative judge’s jurisdictional order below.
PFR File, Tab 1 at 6–7. We disagree.
¶5 The Board has jurisdiction to review whether an agency’s denial of
restoration to a partially recovered employee was arbitrary and capricious.
Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1103–04 (Fed.
Cir. 2011); 5 C.F.R. § 353.304(c). To establish jurisdiction and obtain a hearing
on the merits, an appellant is required to make nonfrivolous allegations that:
(1) she was absent from her position due to a compensable injury; (2) she
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 her; (3) the agency denied her request for restoration; and (4) the
agency’s denial was arbitrary and capricious. Kingsley v. U.S. Postal Service,
123 M.S.P.R. 365, ¶ 11 (2016); 5 C.F.R. § 1201.57(a)(4), (b). 2 An agency’s
failure to adhere to its substantive restoration obligations under the Office of
2
Until recently, an appellant alleging a denial of restoration was required to prove
Board jurisdiction by preponderant evidence. Bledsoe, 659 F.3d at 1102, 1103–04
(citing Garcia v. Department of Homeland Security, 437 F.3d 1322, 1330, 1335–37,
1340, 1344 (Fed. Cir. 2006) (en banc)); Latham v. U.S. Postal Service,
117 M.S.P.R. 400, ¶ 10 (2012). However, the Board issued a new regulation effective
March 30, 2015, that adopted a nonfrivolous allegation standard for restoration appeals.
Kingsley, 123 M.S.P.R. 365, ¶ 10. Because the appellant filed her Board appeal after
the effective date of that new regulation, she only was required to make nonfrivolous
allegations of jurisdiction to obtain a hearing on the merits. 5 C.F.R. § 1201.57(a)(4),
(b); IAF, Tab 1. Below, the administrative judge incorrectly indicated that nonfrivolous
allegations would only entitle the appellant to a hearing on jurisdiction. IAF, Tab 3
at 2; ID at 2. Although we modify the initial decision to correct the statement of the
jurisdictional standard, the administrative judge’s error was harmless because he
properly determined that the appellant failed to present nonfrivolous allegations of
jurisdiction. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)
(recognizing that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision).
4
Personnel Management’s regulations at 5 C.F.R. § 353.301(d), including any
restoration obligations it has voluntarily adopted, is per se “arbitrary and
capricious.” Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 16 (2012).
¶6 By regulation, the Board has defined a nonfrivolous allegation as “an
assertion that, if proven, could establish the matter at issue.” 5 C.F.R.
§ 1201.4(s). The regulation further provides, “An allegation generally will be
considered nonfrivolous when, under oath or penalty of perjury, an individual
makes an allegation that: (1) Is more than conclusory; (2) Is plausible on its face;
and (3) Is material to the legal issues in the appeal.” Id. Pro forma allegations
are insufficient to meet the nonfrivolous standard. Lara v. Department of
Homeland Security, 101 M.S.P.R. 190, ¶ 7 (2006).
¶7 The Board has distinguished between nonfrivolous and pro forma
allegations in other contexts that are illustrative for restoration appeals. For
example, in the context of an alleged constructive demotion, the Board has found
that a conclusory allegation that an appellant was entitled to promotion to her
upgraded position was pro forma in the absence of supportive facts or legal
argument. Fleming v. Department of Labor, 97 M.S.P.R. 341, ¶¶ 15–16 (2004).
For claims of marital status or partisan political discrimination in a termination
during a probationary or trial period case, the Board has indicated that allegations
must be more than conjecture and that an appellant must provide supporting facts
to show the allegations are not merely pro forma. Smirne v. Department of the
Army, 115 M.S.P.R. 51, ¶ 8 (2010). Similarly, the U.S. Court of Appeals for the
Federal Circuit has held that an allegation of marital status discrimination must
be supported by factual assertions and that merely conclusory pleadings are
insufficient. Stokes v. Federal Aviation Administration, 761 F.2d 682, 686
(Fed. Cir. 1985). Finally, in the context of whistleblowing, the Board has found
that an appellant must make specific and detailed allegations; vague, conclusory,
unsupported, and pro forma allegations of alleged wrongdoing do not meet the
nonfrivolous pleading standard. El v. Department of Commerce,
5
123 M.S.P.R. 76, ¶ 6 (2015); Linder v. Department of Justice, 122 M.S.P.R. 14,
¶ 14 (2014).
¶8 Based upon the Board’s regulatory definition of a nonfrivolous allegation
and Board precedent in other contexts, we clarify the distinction between
nonfrivolous and pro forma allegations for restoration cases: To present
nonfrivolous allegations and satisfy the jurisdictional burden in a restoration
appeal, an appellant must present material and plausible assertions of fact that, if
true, could establish that the agency breached its substantive restoration
obligations, including any restoration obligations that it voluntarily adopted. A
vague, conclusory, or unsupported allegation, such as one that essentially repeats
the legal standard, without more, is pro forma and insufficient.
¶9 Because the appellant failed to respond to the jurisdictional order, the
totality of her allegations were contained in her initial pleading. IAF, Tab 1.
Concerning the first jurisdictional element, that pleading did not indicate what
her injury was, but it described the injury as work-related and resulting in her
being “out on” an Office of Workers’ Compensation Programs (OWCP) related
absence, which, if true, would indicate that the absence was due to a compensable
injury. Id. at 3, 5. For the second jurisdictional element, her pleading summarily
alleged that she was “partially rehabilitated” and had been “released by [a] doctor
to return to work.” Id. Though not further explained, a grievance form included
in her pleading references “light/limited duty.” Id. at 5. Concerning the third
element, the appellant’s pleading alleged that she returned to work on
April 13, 2015, but, after a few hours, the agency informed her that her
limitations could not be accommodated at that time. Id. She reportedly remained
off work through August 17, 2015. Id. at 3, 5.
¶10 Even if we were to find that the aforementioned allegations satisfied the
nonfrivolous standard regarding the first three elements of the appellant’s
jurisdictional burden, she failed to present any allegations that could satisfy the
fourth element—that the denial of restoration was arbitrary and capricious. Her
6
pleading includes an allegation that the agency’s actions were “unwarranted,
harsh, capricious, and punitive in nature.” Id. at 5. However, she failed to assert
any facts in support of the allegation. Further, although she alleged that the
agency violated the applicable collective bargaining agreement, she did not
identify any restoration obligation contained therein that the agency violated or
explain how it did so. PFR File, Tab 1 at 6; IAF, Tab 1 at 5. Without the
assertion of pertinent facts, the appellant merely presented pro forma allegations
that the agency’s denial was arbitrary and capricious. Therefore, she failed to
satisfy her jurisdictional burden. See Bledsoe, 659 F.3d at 1100, 1104–06
(finding that an appellant failed to meet her jurisdictional burden concerning the
fourth element because “she did not identify any vacant position which was
available within her commuting area and which she was able to perform” or
otherwise “make a non‑frivolous allegation that the Postal Service acted
arbitrarily and capriciously in not restoring her”); cf. Manning v. U.S. Postal
Service, 118 M.S.P.R. 313, ¶ 11 (2012) (finding that an appellant met the
nonfrivolous standard for the fourth jurisdictional element where it appeared that
the agency denied restoration under the mistaken belief that the appellant was not
entitled to OWCP benefits); Chang v. U.S. Postal Service, 114 M.S.P.R. 258,
¶¶ 10-11 (2010) (finding that, despite the inadequate submissions of the
appellant, the agency’s own evidence showed that it may have failed to search the
entire local commuting area as required by 5 C.F.R. § 353.301(d), satisfying the
fourth jurisdictional element); Tat v. U.S. Postal Service, 109 M.S.P.R. 562, ¶ 18
(2008) (finding that an appellant met the nonfrivolous standard for the fourth
jurisdictional element because the agency denied his request for restoration for
the stated reason that he did not have a compensable injury even though OWCP
found that his medical condition was compensable).
7
The administrative judge’s dismissal on jurisdictional grounds did not amount to
an improper dismissal for failure to prosecute.
¶11 The appellant also argues that the administrative judge’s dismissal on
jurisdictional grounds amounted to a premature and improper dismissal for failure
to prosecute. PFR File, Tab 1 at 4–5. In concert with that argument, the
appellant’s attorney has presented an explanation for why he did not respond to
the jurisdictional order below. Id. at 2–3. We find that the arguments and
assertions provide no basis for disturbing the initial decision.
¶12 As an initial matter, we note that the explanations for the appellant’s
failure to respond to the jurisdictional order below are unavailing. In his
unsworn brief, the appellant’s representative attributes his failure to respond to a
number of factors including a death in his family, the Thanksgiving holiday, and
a busy workload preparing for a hearing in another Board appeal. 3 Id. at 2–3.
The agency responded, in part, with argument and supportive evidence that the
parties had settled the other appeal the appellant’s representative identified,
eliminating the need to prepare for a hearing in that case. Compare id. at 3, with
PFR File, Tab 3 at 5, 17–19. The appellant did not reply to this argument and
evidence.
¶13 Even if the appellant’s representative were busy preparing for another case,
the Board has held that a heavy workload does not establish good cause for a late
filing. Andre v. Department of the Army, 91 M.S.P.R. 342, ¶ 8 (2002). The
Board also has recognized that holidays and other competing time demands do
not constitute good cause for an untimely filing. Melendez v. Department of
Homeland Security, 112 M.S.P.R. 51, ¶ 14 (2009); cf. Passes v. Department of the
Interior, 100 M.S.P.R. 33, ¶ 7 (2005) (finding that the unavailability of an
3
The appellant’s representative states at one point that he was preparing for two
hearings, but only identified one appeal. PFR File, Tab 1 at 3.
8
appellant’s representative did not establish good cause for untimely filing a
petition for review). Accordingly, the explanations provided for the appellant’s
failure to respond to the administrative judge’s jurisdictional order do not warrant
a different result.
¶14 For her argument that the administrative judge’s dismissal on jurisdictional
grounds amounted to a premature and improper dismissal for failure to prosecute,
the appellant attempts to analogize the current situation to that of Bilandzich v.
Department of the Army, 111 M.S.P.R. 301 (2009). PFR File, Tab 1 at 4. The
appellant in that case filed an appeal under the Uniformed Services Employment
and Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
(USERRA), which, in relevant part, protects members of the uniformed service
from employment discrimination, alleging that his employing agency had
improperly charged him military leave for uniformed service performed on
non-workdays, causing him to use other leave to perform military duty.
Bilandzich, 111 M.S.P.R. 301, ¶ 2. The administrative judge issued an
acknowledgment order, noting that a person’s entitlement to USERRA benefits by
reason of prior military service may terminate if any of a number of intervening
events occur, directing the appellant to respond by addressing whether any of
those events applied to his service. Id., ¶ 3. Although the appellant responded to
a separate motion to dismiss from the agency, he failed to address the matter
raised in the acknowledgment order. Id. Without issuing any further orders, the
administrative judge dismissed the appeal for lack of jurisdiction. Id., ¶ 4. On
review, the Board reversed. Id., ¶¶ 7–9. The Board found that the dismissal for
lack of jurisdiction was, in essence, a dismissal for failure to prosecute. Id., ¶ 7.
In doing so, the Board noted that the appellant had met his jurisdictional burden,
which, in the context of a USERRA appeal, unconditionally entitled him to a
Board hearing, despite his failure to respond to the administrative judge’s
acknowledgment order. Id., ¶¶ 7–9.
9
¶15 Contrary to the appellant’s arguments, Bilandzich is not dispositive in the
instant appeal; it is distinguishable from the facts at hand. First, this case does
not involve a USERRA claim. Second, unlike the appellant in Bilandzich, the
appellant in this matter did not meet her jurisdictional burden. Because the
appellant failed to meet her jurisdictional burden, despite being ordered to do so,
the administrative judge’s dismissal on jurisdictional grounds was proper. We
decline to adopt a standard requiring that administrative judges respond to an
appellant’s failure to meet her jurisdictional burden with a second opportunity to
meet that burden.
The administrative judge did not improperly deny the appellant the opportunity to
conduct discovery.
¶16 The appellant’s final argument is that the administrative judge erred by not
allowing her to conduct discovery prior to dismissing the appeal for lack of
jurisdiction. PFR File, Tab 1 at 7. However, the administrative judge’s
acknowledgment order provided basic discovery instructions to the appellant and
referred her to the applicable regulations. IAF, Tab 2 at 3 (citing 5 C.F.R.
§§ 1201.71-1201.85). Those basic instructions and the corresponding regulations
both reflect an expectation that the parties will start and complete discovery with
minimum Board intervention. IAF, Tab 2 at 3; 5 C.F.R. § 1201.71; see King v.
Department of the Navy, 98 M.S.P.R. 547, ¶ 10 (2005) (recognizing that a party
does not need the Board’s approval to engage in discovery, and the Board
generally only becomes involved in discovery matters if a party files a motion to
compel), aff’d, 167 F. App’x 191 (Fed. Cir. 2006); see also 5 C.F.R.
§ 1201.73(c)(1), (d)(3) (containing instructions and time limits for filing a motion
to compel). Accordingly, we find that, while the appellant is correct in
suggesting that she was entitled to engage in discovery, her failure to avail
herself of that opportunity is not attributable to the administrative judge.
10
ORDER
¶17 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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.
11
If you are interested in securing pro bono representation for an appeal to
the U.S. 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:
______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.