                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RAHEIM MORGAN,                                  DOCKET NUMBER
                 Appellant,                          AT-0353-14-0669-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: January 14, 2015
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Eryca Bloom, Hialeah, Florida, for the appellant.

           Dana E. Morris, Esquire, Memphis, Tennessee, 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 the appellant’s appeal of an alleged denial of
     restoration and an alleged suspension. Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;


     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 and AFFIRM
     the initial decision, which is now the Board’s final decision.              5 C.F.R.
     § 1201.113(b).
¶2         The appellant, a City Carrier whose position requires him to drive, is
     medically restricted from driving because he has narcolepsy. Initial Appeal File
     (IAF), Tab 4 at 11, 22-23. Thereafter, he was placed off duty because he could
     not perform his duties. Id. at 4-5. He filed an appeal in which he contended that
     the agency suspended him when it placed him off duty and that it denied a request
     for restoration. IAF, Tab 1.
¶3         The administrative judge issued an initial decision on the written record in
     which she found that the appellant failed to establish jurisdiction over his case as
     a denial of restoration appeal because there was no evidence that his medical
     condition was related to a compensable injury. Initial Decision (ID) at 2. She
     further found that he was not entitled to appeal the action as an alleged
     suspension because he lacked 1 year of current continuous service and thus did
     not have chapter 75 appeal rights. ID at 2-3.
¶4         The   Federal   Employees’    Compensation     Act   and   its   corresponding
     regulations at 5 C.F.R. part 353 provide that federal employees who suffer
     on-the-job compensable injuries enjoy certain rights to be restored to their
                                                                                         3

     previous or comparable positions. 5 U.S.C. § 8101, et seq.; Tat v. U.S. Postal
     Service, 109 M.S.P.R. 562, ¶ 9 (2008). A compensable injury is defined as one
     that is accepted by the Office of Workers’ Compensation Programs (OWCP) as
     job-related and for which medical monetary benefits are payable from the
     Employees’ Compensation Fund. Frye v. U.S. Postal Service, 102 M.S.P.R. 695,
     ¶ 9 (2006).     Here, while it is not disputed that the appellant suffers from a
     medical condition that affects his ability to perform the full range of his duties, he
     has submitted no evidence to show that his condition has been accepted as
     job-related by OWCP or that he is receiving medical monetary benefits for it.
     Because the appellant has not shown that he has a compensable injury, he has not
     shown that he is an employee with restoration rights and, therefore, the
     administrative judge correctly dismissed his restoration claim for lack of
     jurisdiction.
¶5         In order for a preference-eligible Postal Service employee such as the
     appellant to appeal an adverse action, such as a suspension, under 5 U.S.C.
     chapter 75, he must have completed 1 year of current continuous service in the
     same or similar positions. See, e.g., Clark v. U.S. Postal Service, 118 M.S.P.R.
     527, ¶ 7 (2012). “Current continuous service” means a period of employment that
     immediately preceded the adverse action without a break in federal civilian
     service of a workday. See, e.g., Claiborne v. Department of Veterans Affairs,
     118 M.S.P.R. 491, ¶ 6 (2012). As the administrative judge correctly found, the
     appellant was serving in a temporary appointment of less than 1 year and it was
     preceded by a break in service of several workdays. ID at 3; see IAF, Tab 4 at 8,
     10.   Therefore, she correctly found that the appellant did not have 1 year of
     current continuous service and the Board lacks jurisdiction over his appeal as an
     alleged suspension.
¶6         On review, the appellant asserts that the agency is accommodating another
     employee with a driving restriction and he proffers argument about various
     alleged irregularities in the processing of his discrimination complaint and about
                                                                                  4

a minor typographical error in an agency pleading. However, he does not address
the administrative judge’s jurisdictional findings or identify any error in the
initial decision. See Farris v. U.S. Postal Service, 101 M.S.P.R. 316, ¶ 7 (2006)
(holding that, where the appellant discussed only the merits of her appeal but
failed to address the jurisdictional issue noted in the administrative judge’s
acknowledgment order, she failed to introduce evidence establishing the Board’s
jurisdiction over her appeal).    Thus, we find that the appellant’s petition for
review provides no basis for disturbing the initial decision.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. 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).
      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.
                                                                                5

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.
