                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CARISSIMA M. PETTUS,                            DOCKET NUMBER
                   Appellant,                        DC-0353-13-0409-I-2

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: November 5, 2015
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.

           Dominick G. Yacono, Esquire, and Julia Alexandra Fitzmaurice, Esquire,
             Norfolk, Virginia, 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 initial decision, which
     dismissed this restoration appeal for lack of jurisdiction.          For the reasons
     discussed below, we GRANT the appellant’s petition for review and REMAND



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the case to the regional office for further adjudication in accordance with this
     Order.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant, a GS-05 Police Officer at the agency’s Naval Weapons
     Station Yorktown, Virginia, sustained a work-related injury on November 30,
     2011, which the Office of Workers’ Compensation Programs (OWCP) accepted
     on January 26, 2012. Pettus v. Department of the Navy, MSPB Docket No. DC-
     0353-13-0409-I-1 Initial Appeal File (IAF), Tab 1, Tab 16 at 12.              Following
     surgery, the appellant worked in a limited duty position until August 28, 2012,
     when she experienced a recurrence of her injury, which was later accepted by the
     OWCP. IAF, Tab 8 at 49, 80. The appellant saw her orthopedic surgeon on
     November 26, 2012, and he determined that she had reached maximum medical
     improvement such that her restrictions were permanent.              Id. at 15-17.     On
     November     29,    2012,   the   appellant   provided    the   agency with      medical
     documentation from her orthopedic surgeon, id., and requested immediate
     restoration, id. at 25.     The agency subsequently issued the appellant a notice
     stating that it was unable to accommodate the appellant in her Police Officer
     position. IAF, Tab 16 at 19-21. The appellant then filed this appeal. IAF, Tab 4.
¶3         In pertinent part, the administrative judge rejected the appellant’s claim for
     restoration as a physically disqualified individual under 5 C.F.R. § 353.301(c)
     because the appellant first requested restoration on November 29, 2012, 1 day
     before her entitlement to such restoration expired. Pettus v. Department of the
     Navy, MSPB Docket No. DC-0353-13-0409-I-2 (I-2 IAF), Tab 22, Initial
     Decision (ID) at 3-5. 2      Under those circumstances, the administrative judge
     determined that she could not find that the agency improperly failed to provide


     2
       The administrative judge dismissed the appeal without prejudice and the appellant
     later refiled it in keeping with the administrative judge’s instructions. IAF, Tab 27; I-2
     IAF, Tab 1.
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     the appellant restoration rights under 5 U.S.C. § 353.301(c), because there was no
     longer any time left when she requested restoration to locate positions for her
     before the end of her 1-year entitlement to restoration under the regulation. ID at
     4.   Thus, the administrative judge found that the appellant failed to establish
     jurisdiction over her restoration claim. ID at 9.
¶4         However, contrary to the administrative judge’s conclusion, we find that the
     appellant nonfrivolously alleged facts that, if proven, would establish that the
     agency violated her restoration rights as a “physically disqualified” individual.
     The pertinent regulation provides that:
            An individual who is physically disqualified for the former position
            or equivalent because of a compensable injury, is entitled to be
            placed in another position for which qualified that will provide the
            employee with the same status, and pay, or the nearest approximation
            thereof, consistent with the circumstances in each case. This right is
            agencywide and applies for a period of 1 year from the date
            eligibility for compensation begins. After 1 year, the individual is
            entitled to the rights accorded individuals who fully or partially
            recover, as applicable.
     5 C.F.R. § 353.301(c).      Presuming     that      the   appellant’s   eligibility   for
     compensation began on the date of her initial compensable injury, November 30,
     2011, because the record reflects that she provided evidence establishing her
     physical disqualification within 1 year after this date, i.e., November 29, 2012,
     she was entitled to be placed in another position for which she qualified that
     provided her with the same status and pay, or the nearest approximation of that
     status and pay, consistent with the circumstances of her case.            E.g., Hall v.
     Department of the Navy, 94 M.S.P.R. 262, ¶ 24 (2003). Moreover, given that the
     appellant requested restoration just 3 days after her orthopedic surgeon found that
     she had reached her maximum medical improvement and that she provided the
     agency with medical evidence establishing her physical disqualification within
     the requisite 1 year after her eligibility for compensation began, we find that the
     appellant has exercised diligence in requesting restoration. See, e.g., Gerdes v.
                                                                                         4

     Department of the Treasury, 89 M.S.P.R. 500, ¶ 13 (2001) (discussing that, aside
     from making a request for restoration within 1 year after eligibility for
     compensation begins, 5 C.F.R. § 353.301(c) contains no additional requirements
     for placing an agency on notice that restoration is sought).
¶5        Accordingly, we find that the appellant has nonfrivolously alleged facts
     that, if proven, would establish that she was a physically disqualified individual
     and that the agency violated the restoration rights to which she was entitled. She
     therefore is entitled to a jurisdictional hearing at which she must prove
     jurisdiction by preponderant evidence. 3 See Bledsoe v. Merit Systems Protection
     Board, 659 F.3d 1097, 1101-02 (Fed. Cir. 2011).

                                           ORDER
          For the reasons discussed above, we REMAND the appellant’s restoration
     claim 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.




     3
       Effective March 30, 2015, the Board amended its regulations concerning the burden of
     proof for establishing jurisdiction over restoration appeals filed under 5 C.F.R.
     § 353.304. 5 C.F.R. § 1201.57(a)(4) (2015). The amended regulations do not apply to
     the instant appeal, however, because they apply only to appeals filed on or after
     Marc 30, 2015. 80 Fed. Reg. 4489, 4489 (Jan. 28, 2015).
