Error: Bad annotation destination
                     NOTE: This disposition is nonprecedential.


     United States Court of Appeals for the Federal Circuit

                                       2006-3220

                                 JOE A. BROWN, JR.,

                                                          Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                          Respondent,

                                          and

                        UNITED STATES POSTAL SERVICE,

                                                          Intervenor.


      Joe A. Brown, Jr., of Lewisville, Texas, pro se.

      Calvin M. Morrow, Attorney, Office of General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With him on the brief
were Rosa Koppel, Acting General Counsel and Thomas Auble, Acting Associate
General Counsel. Of counsel was Joyce G. Friedman, Acting Associate General
Counsel.

      Ray E. Donahue, Attorney, Law Department Civil Practice, United States Postal
Service, of Washington, DC, for Intervenor. With him on the brief was Lori J. Dym,
Chief Counsel. Also on the brief was Peter D. Keisler, Assistant Attorney General,
Commercial Litigation Branch, Civil Division, United States Department of Justice, of
Washington, DC. Of counsel was Reginald T. Blades, Attorney.

Appealed from: United States Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit


                                       2006-3220

                                  JOE A. BROWN, JR.,

                                                               Petitioner,


                                            v.


                       MERIT SYSTEMS PROTECTION BOARD,

                                                               Respondent,

                                           and

                         UNITED STATES POSTAL SERVICE,

                                                               Intervenor.


                            __________________________

                            DECIDED: January 22, 2007
                            __________________________


Before NEWMAN, SCHALL, and BRYSON, Circuit Judges.

PER CURIAM.


                                         DECISION

       Joe A. Brown, Jr. petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that dismissed for lack of jurisdiction his appeal of an alleged
constructive suspension.     Brown v. U.S. Postal Serv., No. DA-0752-05-0591-I-1

(M.S.P.B. March 28, 2006) (“Final Decision”). We affirm.

                                       DISCUSSION

                                             I.

      Mr. Brown, who is a letter carrier with the Postal Service (“agency”) at its Ridglea

Station in Forth Worth, Texas, was injured on the job in the fall of 2004. On April 1,

2005, the Office of Workers’ Compensation Programs of the Department of Labor

(“OWCP”) approved Mr. Brown’s claim for workers’ compensation benefits based upon

“Aggravation of bilateral anomalies of foot, NEC, 755.67A; bilateral arthropathy of the

foot, 716.97B.” OWCP informed the agency that, if it had a modified job available that

was consistent with Mr. Brown’s work restrictions, it should offer the job to him and

should submit the job’s duties to OWCP for approval.

      Mr. Brown refused a job offer that the agency made to him on April 11, 2005.

Thereafter, on May 11, 2005, the agency made Mr. Brown another job offer. This offer

was for a modified processing clerk position at another postal station in Forth Worth.

The position did not require walking or standing, as had the position the agency offered

Mr. Brown on April 11. The notice accompanying the offer informed Mr. Brown that he

had 30 days to accept the offer and report for work or to arrange for a report date, and

that, if he refused the offer, he needed to provide a written explanation for the reasons.

The same day that the agency offered Mr. Brown the modified processing clerk position,

OWCP wrote a letter to Mr. Brown in which it stated that it had determined that the

position in the job offer complied with his medical restrictions. Mr. Brown responded to

the agency’s offer on June 8, 2005. In his response, Mr. Brown stated that he was




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neither declining nor accepting the offer, but that his duty status report suggested that

he should decline. Mr. Brown added that he had a doctor’s appointment on June 17,

after which he would provide further medical documentation.

       On June 13, 2005, OWCP sent Mr. Brown a letter advising him that it considered

his response of June 8 to be a refusal of the agency’s offer of the modified clerk

position. OWCP rejected Mr. Brown’s reasons for not accepting the offer and reiterated

that the position met his medical restrictions. OWCP informed Mr. Brown that, if he did

not accept the offer within 15 days, his worker’s compensation benefits would be

terminated. Thereafter, on June 29, 2005, Mr. Brown’s benefits were terminated after

he still had not accepted the modified clerk position. OWCP’s letter stated: “[Y]our

entitlement to wage loss and schedule award benefits are terminated because you

failed to accept suitable employment.”

                                           II.

       On August 10, 2005, Mr. Brown lodged an appeal with the Board, alleging that he

had been constructively suspended from his position. Although Mr. Brown did not state

what period of absence he alleged amounted to a constructive suspension, he

contended that the jobs the agency offered him were not suitable in view of his medical

condition.

       On December 20, 2005, without holding a hearing, the administrative judge (“AJ”)

to whom the appeal was assigned issued an initial decision in which he dismissed the

appeal for lack of jurisdiction. Brown v. U.S. Postal Serv., No. DA-0752-05-0591-I-1

(M.S.P.B. Dec. 20, 2005) (“Initial Decision”). The AJ pointed out that there were two

situations in which the Board had jurisdiction under 5 U.S.C. §§ 7511-13 to consider a




2006-3220                                  3
constructive suspension claim. The first situation, the AJ explained, is when an agency

places an employee on enforced leave pending an inquiry into his ability to perform, the

issue being whether the agency or the employee initiated the absences lasting over

fourteen days. Initial Decision at 6 (citing Johnson v. U.S. Postal Serv., 85 M.S.P.R.

184, ¶ 5 (2000); McIver v. U.S. Postal Serv., 74 M.S.P.R. 464, 467 (1997)). The second

situation is when an employee who is absent from work for medical reasons requests to

return to work with altered duties, but the agency denies that request, even though it is

obligated to offer the employee available light-duty work.      In such a situation, the

employee’s continued absence may be viewed a constructive suspension.                Initial

Decision at 6-7 (citing Baker v. U.S. Postal Serv., 71 M.S.P.R. 680, 692 (1996)).

      Considering the facts set forth in Part I above, Initial Decision at 1-4, 6-7, the AJ

rejected Mr. Brown’s argument that his case involved the latter situation.          The AJ

pointed out that the agency had offered Mr. Brown a position with duties that were

modified to take into account the medical condition for which OWCP had approved

compensation benefits. In addition, the AJ noted that OWCP had found the position

offered to Mr. Brown suitable. He also noted that the Board did not have authority to

review OWCP’s suitability determination because it was reviewable only by the

Department of Labor. Initial Decision at 7 (citing New v. Dep’t of Veterans Affairs, 142

F.3d 1259, 1262 (Fed. Cir. 1998)). Thus, the AJ ruled that the Board lacked jurisdiction

because Mr. Brown’s absences from work subsequent to the agency’s May 11, 2005,

offer of a suitable position were not the result of a refusal by the agency to allow Mr.

Brown to work. Initial Decision at 7. Finally, turning to Mr. Brown’s contention that he

had been “placed off the clock at times,” the AJ noted that Mr. Brown had not offered




2006-3220                                   4
any “evidence or factual allegations regarding any period of absence that was initiated

by the agency that was in excess of fourteen consecutive days.” Id. at 8.

      The Initial Decision became the final decision of the Board on March 28, 2006,

when the Board denied Mr. Brown’s petition for review for failure to meet the criteria for

review set for the at 5 C.F.R. § 1201.115(d). This appeal followed. We have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(9).

                                            III.

      Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule or regulation having been followed; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &

Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

      On appeal, Mr. Brown does not address the jurisdictional ruling of the Board in

his case. Rather, he contends that, in ruling against him, the AJ “overlooked what

D.O.L. did[,] . . . knowing that pertinent documents were forthcoming.” Mr. Brown adds

that his doctor wrote a note confirming this. Mr. Brown also contends that there was

“clear evidence” that he was not able to return to work because Lionel Cantu, the

manager of the Ridglea Station, hated him, and all relevant paperwork had to be

submitted to Mr. Cantu.

      We see no error in the Board’s decision in this case. The AJ dismissed Mr.

Brown’s appeal for lack of jurisdiction without a hearing after he determined that Mr.

Brown had failed to present non-frivolous allegations as to material facts pertinent to the




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issue of the Board’s jurisdiction.      Initial Decision at 9, n.7.   This was the correct

approach as a matter of law, see Garcia v. United States, 437 F.3d 1322, 1344 (Fed.

Cir. 2006) (en banc), and the AJ applied the correct legal test for determining whether

the Board had jurisdiction, see New, 142 F.3d at 1262 (determination of whether a

position is suitable for an employee in light of the employee’s medical condition is

committed to OWCP). At the same time, Mr. Brown has failed to demonstrate that the

AJ’s factual determinations underlying his ruling are not supported by substantial

evidence. Put another way, Mr. Brown has failed to show that the facts set forth in Part

I above, which are determinative of the jurisdictional issue, are not supported by

substantial evidence. Indeed, the AJ determined that these facts were not disputed,

Initial Decision at 1-2, and Mr. Brown has not challenged that determination. Finally, to

the extent that Mr. Brown challenges the determination that he was offered a position

that was suitable in light of his medical condition and asserts that his supervisor was

hostile to him, he presents allegations that were beyond the jurisdiction of the Board.

       For the foregoing reasons, the final decision of the Board dismissing Mr. Brown’s

appeal for lack of jurisdiction is affirmed.




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