                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ALEX MA,                                        DOCKET NUMBER
                         Appellant,                  SF-0353-14-0097-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 19, 2014
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Guillermo Mojarro, Upland, California, for the appellant.

           Nina Paul, 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 his restoration appeal for lack of jurisdiction.       Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous
     findings of material fact; the initial decision is based on an erroneous


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.

                                       BACKGROUND
¶2         The appellant is a Window Clerk at the agency’s Plaza Center Station in
     Ontario, California. Initial Appeal File (IAF), Tab 4 at 19. In June 2006, he
     suffered a compensable injury. Id. at 43. In August 2011, the appellant accepted
     a limited-duty assignment as a Sales and Service Associate (SSA) for 4 hours a
     day from 8:30 a.m. to 12:30 p.m. Id. at 41. This assignment was consistent with
     the appellant’s medical restrictions, as reflected in his duty status report dated
     July 15, 2011. IAF, Tab 5 at 10.
¶3         In early 2013, the agency conducted a search for adequate work within the
     appellant’s medical restrictions, and was able to find 4 hours of work in a Clerk
     position. 2 IAF, Tab 4 at 40. Based on the needs of the service, on October 31,
     2013, the agency offered the appellant a limited-duty assignment as an SSA from
     12:30 to 16:30 (i.e., 12:30 p.m. to 4:30 p.m.) starting on November 11, 2013,

     2
       On February 20, 2013, the agency offered the appellant a rehabilitation assignment as
     a Customer Care Agent in Los Angeles for 8 hours per day. IAF, Tab 4 at 36. The
     appellant claimed that the position was outside his medical restrictions and rejected the
     offer. Id. at 34.
                                                                                        3

     which involved a schedule change from his previous hours of 8:30 a.m. to 12:30
     p.m. Id. at 21. The appellant accepted the offer. Id. Due to a typographical
     error, the October 31, 2013 limited duty offer listed total work hours as “8 hours”
     instead of 4 hours, id.; however, this error was corrected the next day when the
     agency provided the appellant a limited duty offer dated November 1, 2013, for
     “4HRS.” Id. at 20. The appellant accepted this offer “under protest.” Id.
¶4         The appellant then filed this restoration appeal with the Board and
     requested a hearing. IAF, Tab 1. The agency moved to dismiss the appeal for
     lack of jurisdiction. IAF, Tab 4 at 6-14. In response, the appellant asserted that:
     his medical restrictions allow him to work 8 hours per day; these restrictions have
     been the same since August 2011; and there are 8 hours of work per day available
     for him at the Ontario Post Office. IAF, Tab 5 at 4, 6. The appellant alleged that
     the agency offered him a modified duty assignment for 8 hours per day on
     October 31, 2013, but then denied him restoration by discontinuing his modified
     job assignment on November 1, 2013, and mandating that he work only 4 hours
     per day. Id. The appellant also claimed that the agency discriminated against
     him because he requested reasonable accommodation and because of his age and
     disabilities. Id. at 4.
¶5         Without holding the requested hearing, the administrative judge issued an
     initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 14, Initial
     Decision (ID) at 1, 8. The administrative judge found that the appellant failed to
     make a nonfrivolous allegation that the agency denied him restoration and/or that
     the agency’s actions were arbitrary and capricious. ID at 7. The administrative
     judge further found that the appellant’s claims of disability and age
     discrimination do not furnish an independent basis for Board jurisdiction. Id.
¶6         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 3. The agency has filed a response to the petition for review, to which
     the appellant has replied. PFR File, Tabs 7-8. analysis
                                                                                         4

¶7         The   Federal   Employees’     Compensation     Act   and   its   implementing
     regulations at 5 C.F.R. Part 353 provide that federal employees who suffer
     compensable injuries enjoy certain rights to be restored to their previous or
     comparable positions.      5 U.S.C. § 8151; Latham v. U.S. Postal Service,
     117 M.S.P.R. 400, ¶ 9 (2012); Chen v. U.S. Postal Service, 114 M.S.P.R. 292, ¶ 7
     (2010), overruled on other grounds by Latham, 117 M.S.P.R. 400, ¶ 10. In the
     case of a partially-recovered employee, i.e., one who cannot resume the full range
     of his regular duties but has recovered sufficiently to return to part-time or light
     duty or to another position with less demanding physical requirements, an agency
     must make every effort to restore the individual to a position within his medical
     restrictions and within the local commuting area. Chen, 114 M.S.P.R. 292, ¶ 7;
     5 C.F.R. §§ 353.102, 353.301(d).
¶8         To establish jurisdiction over a restoration appeal as a partially-recovered
     individual, an appellant must prove by preponderant evidence that: (1) he was
     absent from his position due to a compensable injury; (2) he 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 him;
     (3) the agency denied his request for restoration; and (4) the denial was arbitrary
     and capricious. Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1104
     (Fed. Cir. 2011); Latham, 117 M.S.P.R. 400, ¶ 10.           If the appellant makes
     nonfrivolous allegations of jurisdiction concerning all four prongs of the
     jurisdictional standard, he is entitled to a jurisdictional hearing.         Bledsoe,
     659 F.3d 1097 at 1102, 1104.
¶9         As an initial matter, we note that the administrative judge did not provide
     the appellant jurisdictional notice during the proceedings below. See IAF, Tab 2.
     The administrative judge alluded to this issue in the initial decision, noting that
     the obligation to afford the appellant explicit information concerning what is
     required to establish jurisdiction over his appeal may be satisfied where the
     agency’s motion to dismiss informs the appellant of what he has to allege to
                                                                                            5

      establish jurisdiction.    ID at 4 (citing Gonzalez v. U.S. Postal Service,
      77 M.S.P.R. 382, 386 (1998)). The administrative judge found that the agency’s
      motion to dismiss informed the appellant of what he had to prove in order to
      prevail on the jurisdictional issue, i.e., that he was denied restoration and that the
      denial was arbitrary and capricious. ID at 4.
¶10         We note, however, that the agency’s motion to dismiss provided the
      appellant incorrect jurisdictional notice. It stated that the Board’s jurisdiction is
      established through nonfrivolous allegations, when, in fact, it is established
      through proof by preponderant evidence. IAF, Tab 4 at 12; see Bledsoe, 659 F.3d
      at 1104; Latham 117 M.S.P.R. 400, ¶ 10.          Further, in the initial decision the
      administrative judge set forth the same incorrect jurisdictional standard as the
      agency. Compare ID at 5, with IAF, Tab 4 at 12. Nevertheless, we find that this
      error does not provide a basis to reverse the initial decision because the
      appellant’s substantive rights were not prejudiced. See Panter v. Department of
      the Air Force, 22 M.S.P.R. 281, 282 (1984); Karapinka v. Department of Energy,
      6 M.S.P.R. 124, 127 (1981). For the reasons explained below, the appellant’s
      submissions were insufficient to satisfy either standard. 3
¶11         There is no dispute that the appellant satisfies the first two jurisdictional
      criteria, i.e., he was absent from his position due to a compensable injury and he
      recovered sufficiently to return to work in an assignment with less demanding
      physical requirements.    See IAF, Tab 4 at 43, Tab 5 at 10. As for the remaining
      criteria, the administrative judge found that “[t]here is also no credible dispute
      that the agency offered the appellant, and he accepted[,] a limited duty


      3
        Although the issue of whether the appellant made a nonfrivolous allegation of Board
      jurisdiction is relevant only for determining whether he is entitled to a jurisdictional
      hearing, see Bledsoe, 659 F.3d at 1102, 1104, we apply the nonfrivolous standard here
      to avoid prejudicing the appellant’s substantive rights by applying a higher standard of
      proof than the one of which he received notice, IAF, Tab 4 at 12. However, the
      appellant was apparently aware of the correct jurisdictional standard inasmuch as he set
      forth that standard in his response to the agency’s motion to dismiss. IAF, Tab 5 at 8.
                                                                                       6

      assignment . . . within his commuting area on August 9, 2011.” ID at 6. She
      further found that “[t]here is also no dispute that the offered position was in
      keeping with the appellant’s documented medical restrictions as prescribed by Dr.
      [C.H.].” ID at 6. Accordingly, the administrative judge found that the agency did
      not deny the appellant restoration in connection with the agency’s August 2011
      limited duty offer. ID at 6.
¶12         The administrative judge then stated that “[t]he issue presented is whether
      the agency’s October 31, 2013 Limited Duty Offer that noted under the heading
      [Average] Time Spent ‘8 hours (12:30-16:30)’ that was reissued the next day
      because of a typographical error and was changed under the heading [Average]
      Time Spent to ‘4 HRS (12:30-16:30)’ was arbitrary and capricious or so
      unreasonable as to amount to a denial of restoration.”           ID at 6.      The
      administrative judge found that the agency’s correction of a typographical error
      was not arbitrary and capricious and did not rise to the level of a denial of
      restoration. ID at 7.
¶13         The administrative judge also found that the agency could only provide
      work within the medical restrictions as noted in the duty status report provided by
      the appellant’s physician. ID at 7. In that regard, the administrative judge noted
      that the most current duty status report provided to the agency during the
      applicable time period—a March 13, 2013 report from Dr. C.H.—identified the
      same restrictions as the July 2011 duty status report that served as the basis for
      the August 2011 limited duty offer for 4 hours of work. ID at 7; see IAF, Tab 5
      at 9, 10. The administrative judge also noted that the August 2011 limited duty
      offer is the same as the appellant’s current limited duty offer with the exception
      of the time the work is to be performed. ID at 7; IAF, Tab 4 at 20, 41. Therefore,
      the administrative judge found, the appellant failed to make a nonfrivolous
      allegation that the agency denied him restoration and/or that the agency’s actions
      were arbitrary and capricious. ID at 7. Accordingly, the administrative judge
      dismissed the appeal for lack of jurisdiction. ID at 8.
                                                                                              7

¶14         On review, the appellant argues that the administrative judge erred in
      finding that he could work only 4 hours per day. PFR File, Tab 3 at 5. More
      specifically, he reasserts his arguments from below that his medical restrictions
      allow him to work up to 8 hours per day and that the agency offered him an “8
      hour modified job” within his medical restrictions on October 31, 2013, but then
      “arbitrary [sic] blocked” him from working in that job on November 1, 2013. 4 Id.
      at 6; IAF, Tab 5 at 6. He also reasserts his discrimination claims on review. PFR
      File, Tab 3 at 5; IAF, Tab 5 at 4.
¶15         Contrary to the appellant’s assertion on review, the administrative judge did
      not find that the appellant could work only 4 hours per day. Rather, as explained
      above, the administrative judge noted that the most current duty status report
      provided to the agency identifies the same restrictions as the July 2011 duty
      status report that served as the basis for the August 2011 limited duty offer for 4
      hours of work as an SSA. ID at 7; see IAF, Tab 5 at 9, 10. The administrative
      judge correctly found that the agency could only provide work within the medical
      restrictions as noted in the duty status report provided by the appellant’s
      physician. ID at 7; see Tram v. U.S. Postal Service, 120 M.S.P.R. 208, ¶ 6 (2013)
      (management has no obligation to allow employees to perform duties that exceed
      their medical restrictions). The administrative judge also informed the appellant
      that if he provided medical documentation to support additional hours of work
      and the agency denied him additional hours, he could file a new restoration
      appeal. 5 ID at 8.
¶16         The administrative judge also properly rejected the appellant’s contention
      that the agency denied him restoration on November 1, 2013, when it provided


      4
        The appellant’s petition for review is largely the same as portions of his response that
      he filed to the agency’s motion to dismiss. Compare PFR File, Tab 3, with IAF, Tab 5
      at 4, 6.
      5
        The Board’s records indicate that, as of this writing, the appellant has not filed such
      an appeal.
                                                                                          8

      the appellant a new limited duty offer that corrected a typographical error in its
      October 31, 2013 limited duty offer. ID at 7. The agency’s mere correction of a
      typographical error is not a denial of restoration.
¶17         Finally, regarding the appellant’s claims of discrimination on the bases of
      his disability and his age, the Board lacks jurisdiction over such claims per se in
      the absence of an otherwise appealable action. See Latham, 117 M.S.P.R. 400,
      ¶ 58. However, the administrative judge should have considered the appellant’s
      claims in this regard to the extent that they pertain to the jurisdictional issue. See
      id. We have considered the appellant’s allegations of discrimination and find that
      he has not made a nonfrivolous allegation that the agency’s actions were arbitrary
      and capricious due to prohibited discrimination.

                        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.
