                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     PEGGY A. COOPER,                                DOCKET NUMBER
                  Appellant,                         SF-0353-14-0098-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: February 25, 2015
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Guillermo Mojarro, Upland, California, for the appellant.

           Kristen L. Walsh, Esquire, San Francisco, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER
¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed for lack of jurisdiction her appeal alleging that the agency failed to
     restore her to duty after partial recovery from a compensable injury. Generally,
     we grant petitions such as this one only when:         the initial decision contains


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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. Except as expressly modified by this Final Order,
     we AFFIRM the initial decision.
¶2        The issues in the appeal before the Board originated with an earlier appeal,
     Cooper v. U.S. Postal Service, SF-0353-11-0316-I-1, Initial Decision (May 13,
     2011) (hereinafter Cooper I). The appellant was an unassigned regular full-time
     employee at the San Bernardino Processing and Distribution Center (SBP&DC) in
     San Bernardino, California.        Cooper I at 2.    Because she had suffered a
     compensable injury in 2004, she was offered and accepted a limited-duty position
     in the manual letters section effective January 5, 2010. Id. Her job there was
     abolished effective September 24, 2010, owing to lack of mail volume, and she
     was reassigned to a Mail Processing Clerk, PS-6 position, the duties of which
     were physically arduous and potentially included moving heavy containers of
     mail. Id.
¶3        The appellant had permanent and stationary medical restrictions, primarily
     related     to   her   ankle.    Id.   These   restrictions   were   documented   in
     December 2010.         Id.   The agency conducted a search for work within her
     restrictions across all shifts and crafts within the processing center, within and
     outside of the San Diego District and throughout the 50-mile radius Local
                                                                                               3

     Commuting Area (LCA), but found no operationally necessary tasks that she
     could perform within her restrictions. Id. On December 23, 2010, the agency
     issued a Complete Day No Work Available letter, directing her to leave for the
     remainder of her workday and not report back unless she was contacted. Id. at 2-
     3. The administrative judge found that she failed to make a nonfrivolous
     allegation that the agency’s action constituted an arbitrary and capricious failure
     to restore her to duty. 2 Id. at 6.
¶4         The appellant submitted updated medical documentation in February 2012,
     after the agency so requested. Initial Appeal File (IAF), Tab 7 at 116-18. She
     was allowed to return to work in February 2013 after the agency reviewed her
     medical restrictions and identified work within those restrictions pursuant to the
     National Return to Work Project.         Id. at 7, 21-23.    She nevertheless filed the
     instant appeal asserting that the agency improperly denied her request for
     restoration as a partially-recovered employee.         IAF, Tab 1.     She premises her
     assertion upon a May 30, 2013 final agency decision finding that the agency
     did not discriminate against her based on age or disability when she was not
     permitted to return to work for nearly a year after her submission of updated
     medical information. 3     See id., Attachment (Att.).        The administrative judge
     issued a jurisdictional order to which she responded. IAF, Tabs 4, 6.
¶5         The administrative judge found that the appellant established three of the
     four elements required for the Board to take jurisdiction over her appeal. IAF,
     Tab 12, Initial Decision (ID) at 4-5.        He found that she was absent from her
     position due to a compensable injury and had recovered sufficiently to return to
     2
        The initial decision is the Board’s final decision in Cooper I , as the appellant did not
     file a petition for review by the finality date.
     3
        The administrative judge interpreted the appeal as including an implicit claim of
     disability discrim ination. See IAF, Tab 12, Initial Decision at 3, 7 & n.2. Absent a
     findin g of Board jurisdiction, however, the Board lacks the authority to adjudicate a
     disability discrimination claim. See Wren v. Department of the Army, 2 M.S.P.R. 1, 2
     (1980) (5 U.S.C. § 2302(b) is not an independent source of Board jurisdiction), aff’d,
     681 F.2d 867, 871-73 (D.C. Cir. 1982).
                                                                                            4

     duty on a part-time basis or to work in a position with physical requirements that
     were less demanding than the requirements of her previous positions. ID at 4-
     5.   He further found that she showed that the agency denied her request for
     restoration when it did not perform a search for available jobs when she first
     updated her medical documentation in February 2012. ID at 5. As for the fourth
     element, the administrative judge found that the appellant failed to allege that the
     agency’s denial of her request for restoration had been arbitrary and capricious.
     ID at 6.     The administrative judge thus dismissed the appeal for lack of
     jurisdiction. ID at 8.
¶6         The    administrative    judge   erroneously     cited    Chen   v.   U.S.   Postal
     Service, 97 M.S.P.R. 527, ¶ 13 (2004), as the standard that the appellant had to
     meet to establish the Board’s jurisdiction.        ID at 4.    Chen, which required an
     appellant to make a nonfrivolous allegation of the jurisdictional elements, was
     overruled by Latham v. U.S. Postal Service, 117 M.S.P.R. 400 (2012).               Under
     Latham,     an   appellant    must   prove   the   same    jurisdictional   elements by
     preponderant evidence.        She must prove 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 denial was arbitrary and capricious
     because of the agency’s failure to perform its obligations under 5 C.F.R.
     § 353.301(d). Latham, 117 M.S.P.R. 400, ¶ 10. An appellant who establishes the
     Board’s jurisdiction over her appeal automatically prevails on the merits. Id.,
     ¶ 10 n.9.
¶7         In the order to show cause, the administrative judge also erroneously cited
     Chen and other cases that have been overruled with respect to the jurisdictional
     standard. IAF, Tab 4 at 3. His mistakes, however, are not reversible error in this
     case. The agency set forth the Latham standard in its response to the show-cause
     order, which would have cured the defect in that order.         IAF, Tab 7 at 10-11; see
                                                                                       5

     Parker v. Department of Housing & Urban Development, 106 M.S.P.R. 329, ¶ 8
     (2007) (an administrative judge’s failure to provide an appellant with proper
     Burgess notice may be cured if the agency’s pleadings contain the notice that was
     lacking in the acknowledgment order or later show-cause orders); see also
     Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir.
     1985) (an appellant must receive explicit information on what is required to
     establish an appealable jurisdictional issue). Additionally, because we agree with
     the administrative judge’s finding that the appellant failed to raise a nonfrivolous
     allegation that the agency’s denial of restoration was arbitrary and capricious, see
     ID at 6-7, we also conclude that she was not entitled to a hearing during which
     she would have had opportunity to prove jurisdiction by preponderant evidence,
     see Richards v. U.S. Postal Service, 118 M.S.P.R. 242, ¶ 4 (2012). Accordingly,
     while we must correct the errors in the initial decision, correction of the errors
     does not alter the outcome of the appeal, and neither party’s substantive rights
     were affected. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
     (1984).
¶8        On review, the appellant argues that the agency acted arbitrarily and
     capriciously by violating agency-specific restoration rules. Petition for Review
     (PFR) File, Tab 3 at 5; see Latham, 117 M.S.P.R. 400, ¶ 16 (an agency’s failure
     to adhere to its substantive restoration obligations under 5 C.F.R. § 353.301(d),
     including any restoration obligations that it has voluntarily adopted, is per se
     “arbitrary and capricious” within the meaning of 5 C.F.R. § 353.304(c)).
     Specifically, she argues that the agency allowed non-career employees to work in
     job assignments within her medical restrictions that should have been available to
     her after February 2012. PFR File, Tab 3 at 6-7. She additionally argues that
     certain non-career employees were placed in “fully funded supervisor[y] positions
     throughout the United States since before February 2012 and ongoing” at the
     SBP&DC, where she had been assigned, and in other locations. Id. at 7-8. She
     also asserts that the agency denied her reasonable accommodation of her medical
                                                                                              6

      condition by failing to assign her to a rehabilitation position as a Customer Care
      Agent in one of the agency’s call centers. Id. at 8-12. She further asserts that the
      agency discriminated against her based on disability. 4 Id. at 13-14.
¶9          The appellant has raised these arguments for the first time on review. The
      complaint that she presented before the administrative judge was of a general
      nature.   Her appeal form lacks any narrative explaining why she believes the
      agency improperly denied her restoration request between February 2012 and
      February 2013, although, with her appeal form, she submitted the May 30, 2013
      final agency decision finding that the agency did not discriminate against her in
      doing so. See IAF, Tab 1, Att. Her response to the show-cause order states that
      from February 22, 2012, until January 2013, the agency “disregarded her
      requests” to return to work. IAF, Tab 6 at 4. The response further states that the
      work offered to her between January 25, 2013, and February 9, 2013, “was so
      unreasonable as to amount to a denial of restoration.” Id. at 5. She alleged no
      specific facts and submitted no documentary evidence supporting her assertions.
¶10         The Board generally will not consider an argument relating to jurisdiction
      that is 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. See Vazquez v. U.S. Postal Service, 114 M.S.P.R. 264, ¶ 8 (2010);
      Hammond v. Department of Veterans Affairs, 98 M.S.P.R. 359, ¶ 6 n.* (2005).
      The appellant submitted several documents with her petition for review. Most of
      these documents pre-date the close of the record on December 17, 2013, see IAF,
      Tab 4 at 4; see, e.g., PFR File, Tab 3 at 21-22, 33-42, Tab 5 at 4-22, and some of

      4
        The appellant additionally argues that “there was no real business reason for the
      discontinuation of [her] lim ited duty position.” PFR File, Tab 3 at 6. As with her other
      arguments on review, she did not raise this issue before the administrative judge.
      Furthermore, to the extent that she may be reasserting the issues in Cooper I , this issue
      is barred under the doctrine of collateral estoppel. See Coats v. U.S. Postal Service,
      111 M.S.P.R. 268, ¶ 8 (2009) (dismissal for lack of jurisd iction will generally preclude
      a second action in the same forum under the doctrine of collateral estoppel, which
      would preclude relitigation of the same jurisdictional issue).
                                                                                        7

      the documents are undated, see, e.g., PFR File, Tab 3 at 17, 29-32. She has not
      explained why she could not obtain these documents before the record closed.
      She has likewise not explained why she could not obtain the three March 2014
      declarations that she submitted with the petition for review. See PFR File, Tab 3
      at 23-28.    These declarations were given by Distribution and Mail Processing
      Clerks who were employed at the SBP&DC while this appeal was pending before
      the administrative judge. 5 Id.
¶11         Even     if the appellant   had   advanced   these   arguments before     the
      administrative judge, her appeal would be unavailing. Despite her rather general
      allegations, the administrative judge examined considerable documentation from
      the agency that was relevant to her claim before he concluded that she failed to
      nonfrivolously allege that the agency improperly denied her restoration request.
      See ID at 4-6; IAF, Tab 7 at 21-205, Tab 8 at 4-186.       Moreover, some of her
      arguments on review reflect a fundamental misunderstanding of the agency’s
      obligations. For example, regarding her assertion that the agency should have
      assigned her to one of its call centers in a distant location if a local position
      had not been available, see PFR File, Tab 3 at 8, 10-12, the agency was only
      required to search for vacant, funded position within her medical restrictions and
      within the 50-mile LCA, see Davis v. U.S. Postal Service, 120 M.S.P.R. 122, ¶ 5
      (2013); 5 C.F.R. § 353.301(d); see also Employee and Labor Relations Manual
      § 438.11(b).
¶12         Finally, the appellant asserts that the administrative judge erred when he
      dismissed the appeal without ruling on her second motion to compel discovery
      from the agency.     PFR File, Tab 5 at 5, Tab 8 at 3; see IAF, Tabs 9-11.       An
      administrative judge has broad discretion in ruling on discovery matters, and,
      absent a showing of abuse of discretion, the Board will not find reversible error in

      5
        The declarants assert that they served with other persons, including non-career
      employees, who were performing duties that were within the appellant’s medical
      restrictions. See PFR File, Tab 3 at 23-28.
                                                                                       8

such rulings.    Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 15
(2013). Here, we find no abuse of discretion. The administrative judge properly
denied the appellant’s only motion to compel.          ID at 8 n.3.       The appellant
contends that her reply to the agency’s response to her motion to compel was a
second motion to compel, see PFR File, Tab 8 at 3, but that pleading was not
another motion.        The appellant captioned the pleading as a “Reply to the
Agency’s Response regarding Appellant’s 1st Motion to Compel Discovery.”
IAF, Tab 11 at 4. The pleading itself is in the nature of a reply and repeatedly
references her motion and the agency’s response. Id. at 4-8. Her argument is
unavailing. For all of the reasons addressed herein, we thus affirm the initial
decision dismissing her appeal for lack of jurisdiction.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
        The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final    decision.     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).
                                                                                  9

     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 a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
