The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JIMMY I. DAVIS, DOCKET NUMBER
Appellant, NY-0752-18-0038-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 19, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jimmy I. Davis , Newark, New Jersey, pro se.
David Friedman , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his restoration appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review, AFFIRM the
administrative judge’s finding that the Board lacks jurisdiction over his
restoration appeal, and REMAND the case to the field office for further
adjudication in accordance with this Remand 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
The agency employed the appellant as a Tractor Trailer Operator. Initial
Appeal File (IAF), Tab 1 at 5, Tab 18 at 20. On October 18, 2017, he claimed to
have suffered an on-the-job injury. IAF, Tab 1 at 5. The following day, he filed
a claim for compensation with the Office of Workers’ Compensation Programs
(OWCP) regarding the injury. IAF, Tab 18 at 26-27. In a letter dated
October 31, 2017, OWCP found that the documentation was insufficient to
support his claim for compensation. Id. at 20-23. Thereafter, on December 11,
2017, the appellant sought to return to work in a modified duty status. Id. at 18.
In a letter dated December 14, 2017, the agency denied his request because his
OWCP claim had been denied. Id. at 17.
The appellant filed a Board appeal claiming that the agency improperly
denied his request for restoration. IAF, Tab 1 at 5. Without holding the
requested hearing, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction. IAF, Tab 1 at 2, Tab 20, Initial Decision (ID).
She found that the appellant failed to nonfrivolously allege that he suffered from
a compensable injury. ID at 7. As a result, she found that he failed to make a
nonfrivolous allegation of jurisdiction under 5 C.F.R. part 353, subpart C. ID
at 6-7. She also found that, in the absence of an appealable action, the Board
lacked jurisdiction to consider his claim of retaliation. ID at 7. She further noted
that it did not appear that the appellant’s absence from work constituted an
appealable constructive suspension. ID at 7 n.5.
The appellant has filed a petition for review, and the agency has filed a
response in opposition. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has shown no basis to disturb the administrative judge’s finding
that the Board lacks jurisdiction over his restoration appeal.
The Federal Employees’ Compensation Act (FECA) and its implementing
regulations provide that Federal employees who suffer on-the-job compensable
3
injuries enjoy certain rights to be restored to their previous or comparable
positions. See Tat v. U.S. Postal Service, 109 M.S.P.R. 562, ¶ 9 (2008); 5 C.F.R.
part 353. To be entitled to any restoration rights under 5 C.F.R. part 353, an
employee must have been “separated or furloughed from an appointment without
time limitation . . . as a result of a compensable injury.” 5 C.F.R. § 353.103(b).
A compensable injury is a medical condition accepted by OWCP to be job related
and for which medical or monetary benefits are payable pursuant to FECA. Tat,
109 M.S.P.R. 562, ¶ 9.
On review, the appellant argues that, because he recovered within 1 year of
his injury, the administrative judge should have analyzed his claim under 5 C.F.R.
§ 353.301(a), which concerns individuals who recover from a compensable injury
within 1 year, instead of under 5 C.F.R. § 353.301(b), which concerns individuals
who recover from a compensable injury after 1 year. PFR File, Tab 1 at 4; see
5 C.F.R. § 353.301(a), (b). However, the administrative judge found that,
because the appellant failed to nonfrivolously allege that he suffered from a
compensable injury, he failed to nonfrivolously allege jurisdiction under any
subsection of 5 C.F.R. part 353. ID at 7. We agree. 5 C.F.R. § 353.301(a)-(d);
see Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 11 (2016) (setting forth
the jurisdictional criteria under 5 C.F.R. § 353.301(d)); Young v. U.S. Postal
Service, 115 M.S.P.R. 424, ¶ 12 (2010) (setting forth the jurisdictional criteria
under 5 C.F.R. § 353.301(a)); Payton v. Department of Homeland Security,
113 M.S.P.R. 463, ¶ 6 (setting forth the jurisdictional criteria under 5 C.F.R.
§ 353.301(b)), aff’d, 403 F. App’x 496 (Fed. Cir. 2010). Accordingly, we affirm
the administrative judge’s finding in this regard.
The appeal must be remanded for adjudication of the appellant’s alleged
constructive suspension claim.
Because OWCP deemed the appellant’s injury not compensable, the
appellant’s allegations made below are properly analyzed as a constructive
suspension appeal, not as a restoration appeal. See Hamilton v. U.S. Postal
4
Service, 123 M.S.P.R. 404, ¶ 16 (2016); Bean v. U.S. Postal Service,
120 M.S.P.R. 397, ¶ 13 n.7 (2013). In the initial decision, the administrative
judge noted, without more, that, “[a]lthough the appellant failed to allege, or even
allude to the fact that his absence from work may have constituted a constructive
suspension, an absence of more than 14 days may be challenged as a constructive
suspension under certain circumstances that do not appear to be applicable here.”
ID at 7 n.5 (citing Perez v. Merit Systems Protection Board, 931 F.2d 853, 855
(Fed. Cir. 1991), and Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 10
(2010)). However, the administrative judge did not provide the appellant notice
of his burden of how to establish jurisdiction over his claim as a constructive
suspension below even though he alleged an absence of more than 14 days, and it
appears that he is an employee with chapter 75 appeal rights to the Board. 2
Certain employee-initiated leaves of absence that appear to be voluntary
but are not may be appealable under 5 U.S.C. chapter 75 as constructive
suspensions. See Abbott, 121 M.S.P.R. 294, ¶7. Assuming that the jurisdictional
requirements of chapter 75 are otherwise met, to establish jurisdiction under these
circumstances, an appellant must prove the following by preponderant evidence:
(1) he lacked a meaningful choice in the matter; and (2) it was the agency’s
wrongful actions that deprived him of that choice. 3 Bean, 120 M.S.P.R. 397, ¶ 8;
see Rosario-Fabregas v. Department of the Army, 122 M.S.P.R. 468, ¶ 8 (2015),
aff’d, 833 F.3d 1342 (2016). This analysis extends to situations in which the
2
A U.S. Postal Service employee, such as the appellant, has a right to appeal an adverse
action to the Board if he meets the following conditions: (1) he is 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) he has completed 1 year of
current continuous service in the same or similar positions. See 39 U.S.C. § 1005(a)(4)
(A); Hamilton, 123 M.S.P.R. 404, ¶ 17. Here, the appellant indicated on his initial
appeal form that he is preference eligible, and the agency claims in its motion to
dismiss that the appellant has 1 year of current continuous service in his Tractor Trailer
Operator position. IAF, Tab 1 at 1, Tab 18 at 11.
3
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
agency prevented the appellant’s return to work after an initially voluntary
absence, such as the appellant alleges here. Rosario-Fabregas, 122 M.S.P.R.
468, ¶ 8; IAF, Tab 1 at 5. If the appellant makes a nonfrivolous allegation of
jurisdiction, then he is entitled to a jurisdictional hearing. 4 Garcia v. Department
of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc).
The jurisdictional issue in constructive suspension appeals is often
dispositive. Abbott, 121 M.S.P.R. 294, ¶ 8. That is, if the appellant fails to meet
his burden of establishing by preponderant evidence that he was constructively
suspended, the appeal will be dismissed because the Board lacks jurisdiction over
appeals of employees’ voluntary actions. Id. Because such constructive
suspensions are often effected without notice, however, if the appellant
establishes jurisdiction, the Board will reverse the agency’s action on due process
grounds without proceeding to the merits. Id.
On remand, the administrative judge shall allow the parties an opportunity
to submit evidence and argument concerning whether the appellant meets his
burden of establishing jurisdiction over his appeal as a constructive suspension.
Should the appellant establish jurisdiction over his constructive suspension
appeal, the administrative judge shall adjudicate the appellant’s retaliation claim
after providing the appellant notice of the elements of proof to establish such
claim.
4
A nonfrivolous allegation of Board jurisdiction is an allegation of fact that, if proven,
could establish that the Board has jurisdiction over the matter at issue. 5 C.F.R.
§ 1201.4(s).
6
ORDER
For the reasons discussed above, we remand this case to the field office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.