                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     THADDEUS A. KNIGHT,                             DOCKET NUMBER
                  Appellant,                         AT-0353-14-0002-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: September 29, 2014
                 Agency.



                       THIS ORDER IS NONPRECEDENTIAL 1

           Thaddeus A. Knight, Coral Springs, Florida, pro se.

           Jeannette Wise, Washington, D.C., for the agency.


                                           BEFORE

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


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his restoration appeal for lack of jurisdiction.           For the reasons
     discussed below, we GRANT the appellant’s petition for review, VACATE the



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     initial decision, and REMAND the case to the regional office for further
     adjudication in accordance with this Order.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         In a nonprecedential order in Knight v. Department of Justice, MSPB
     Docket No. AT-0752-13-0332-I-1, Final Order (Sept. 24, 2013), the Board noted
     that the appellant may be alleging in his petition for review that the agency
     improperly restored him following partial recovery from a compensable injury,
     and the Board forwarded that claim to the Atlanta Regional Office for docketing
     as a new appeal.     See Knight v. Department of Justice, MSPB Docket No.
     AT-0353-14-0002-I-1, Initial Appeal File (IAF), Tab 1. This appeal followed.
     Id.
¶3         In his response to the Acknowledgment Order, the appellant asserted that he
     had recovered sufficiently to return to duty. IAF, Tab 3 at 4. In support of this
     assertion, he produced documentation showing that the Office of Workers’
     Compensation Programs (OWCP) contacted the agency on June 19, 2013, and
     informed the agency that: (1) the appellant “was released to return to limited duty
     work activities with permanent restrictions” based on an April 17, 2013 medical
     evaluation; and (2) these work restrictions were “medically warranted.”         Id.,
     Attachment C. OWCP therefore requested that the agency “create a modified
     work assignment” for the appellant. See id. The appellant also declared, under
     penalty of perjury, that, on July 19, 2013, he sent an email to the agency
     requesting restoration as a partially-recovered employee.      See IAF, Tab 3 at
     15-16. The record reflects that, on August 29, 2013, the agency informed the
     appellant that it was “communicating” with OWCP regarding a July 22, 2013
     medical evaluation as part of a directed second opinion orthopedic consultation,
     and the agency stated that it would “utilize the results of this report to determine
     available positions compatible with the medical restrictions articulated by the
     orthopedic consultant.” IAF, Tab 3, Attachment D.
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¶4         In a January 6, 2014 initial decision, the administrative judge dismissed the
     appeal because the appellant failed to make a nonfrivolous allegation of
     jurisdiction.   See IAF, Tab 8, Initial Decision (ID).      In pertinent part, the
     administrative judge found that the appellant “should have know[n]” that he was
     required both to request restoration and to allow the agency time to act upon that
     request before filing an appeal. ID at 4. The administrative judge found that the
     appellant’s new allegation of improper restoration raised before the full Board
     was improper because he should have waited to see what decision the agency
     might make in response to OWCP’s request. ID at 4. The administrative judge
     noted that, given that the appellant previously failed a fitness-for-duty
     examination, which required him to resign his position with the agency pursuant
     to a settlement agreement, it was “perfectly reasonable for the agency to await the
     findings of the appellant’s second opinion [orthopedic] consultation before
     making a final decision on the appellant’s request for restoration.” ID at 5.
¶5         The appellant has filed a petition for review, and the agency has filed a
     response. Petition for Review (PFR) File, Tabs 1, 3. On petition for review, the
     appellant contends that the agency has a history of not restoring him, he was
     entitled to discovery, the administrative judge improperly did not hold a hearing,
     his appeal was not premature, and the Board has jurisdiction over the OWCP
     request that the agency restore him. PFR File, Tab 1.
¶6         In order to establish jurisdiction under 5 C.F.R. § 353.304(c), 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 because of
     the agency’s failure to perform its obligations under 5 C.F.R. § 353.301(d).
     Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1104 (Fed. Cir.
     2011); Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012).            If the
                                                                                        4

     appellant makes nonfrivolous allegations to support jurisdiction, then and only
     then will he be entitled to a jurisdictional hearing at which time he must prove
     jurisdiction by preponderant evidence. Bledsoe, 659 F.3d at 1102.
¶7         The appellant nonfrivolously alleged that he was absent from his position
     due to a compensable injury and that 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. The question before
     us is whether the appellant nonfrivolously alleged that the agency denied his
     restoration request and whether that denial was arbitrary and capricious.
¶8         The Board has determined that an agency’s “extreme and unexplained”
     delay in satisfying its restoration obligations may constitute a denial of
     restoration.    Chen v. U.S. Postal Service, 114 M.S.P.R. 292, ¶ 11 (2010),
     overruled on other grounds by Latham, 117 M.S.P.R. 400, ¶ 10. In the context of
     addressing     restoration   appeals   challenging   the   U.S.   Postal    Service’s
     implementation of the National Reassessment Process, the Board has held that a
     3-month delay between when the employee is placed off work and completion of
     the district-wide search for work was not “very lengthy,” but a 7- or 8-month
     delay was sufficiently extreme and unexplained as to be considered arbitrary and
     capricious. Compare Chen, 114 M.S.P.R. 292, ¶ 11 (3-month delay), with Tram
     v. U.S. Postal Service, 118 M.S.P.R. 388, ¶ 10 n.2 (2012) (8-month delay); see
     Coles v. U.S. Postal Service, 118 M.S.P.R. 249, ¶ 9 (2012) (affirming the
     administrative judge’s decision that a 7-month delay in conducting a search
     constituted a “significant” delay).
¶9         Regardless of whether we use OWCP’s June 19, 2013 letter, or the
     appellant’s July 19, 2013 email, as the date of the restoration request, 2 the


     2
       We do not consider OWCP’s April 18, 2013 correspondence to the appellant as the
     date of the restoration request because, among other things, OWCP’s letter does not
     include any discussion of the appellant’s medical restrictions. See IAF, Tab 3,
     Attachment B.
                                                                                       5

      appellant has nonfrivolously alleged that the agency’s several-months-long delay
      is extreme and unexplained. Thus, he has made a nonfrivolous allegation that the
      denial of restoration was arbitrary and capricious. The record reflects that, 4-5
      months after the restoration request, the agency filed a submission in which it
      stated that it had not denied the request and it was “in the process of determining
      the availability of positions” that were compatible with the appellant’s medical
      restrictions. IAF, Tab 7 at 8 n.5. The initial decision was issued approximately
      5-6 months after the restoration request was made, and the parties’ petition for
      review submissions do not indicate that the agency has responded to the
      appellant’s restoration request or if there was any activity in this regard.
¶10         We recognize that the agency may be justified in some delay, particularly in
      light of the negative determination from the appellant’s prior fitness-for-duty
      examination, the appellant’s subsequent resignation pursuant to a settlement
      agreement, and the agency’s apparent need for additional information regarding
      the nature of the appellant’s restrictions.     See IAF, Tab 5, Subtabs 4a (the
      settlement agreement resolving Knight v. Department of Justice, MSPB Docket
      No. AT-0353-11-0958-I-1), 4b (the results of the fitness-for-duty examination),
      4c (the appellant’s voluntary resignation paperwork); see also Hardy v. U.S.
      Postal Service, 104 M.S.P.R. 387, ¶¶ 20-21 (concluding that, because the agency
      “was faced with conflicting assessments of the appellant’s abilities, and there is
      no indication that OWCP has made a final determination regarding the appellant’s
      restrictions,” the agency’s decision to await OWCP’s final determination did not
      constitute an arbitrary and capricious denial of restoration), aff’d, 250 F. App’x
      332 (Fed. Cir. 2007). However, we do not agree with the administrative judge
      that, 5-6 months after the restoration request was made, the appellant still should
      have to “wait to see what decision the agency might make in response to OWCP’s
      letter.” See ID at 4.
¶11         Therefore, given the limited evidence in the record, coupled with the
      appellant’s burden to only make a nonfrivolous allegation of Board jurisdiction at
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      this stage, we conclude that he has made a nonfrivolous allegation that the
      agency’s delay was sufficiently extreme and unexplained as to constitute an
      arbitrary and capricious denial of restoration. Accordingly, we remand the appeal
      for a jurisdictional hearing. 3

                                            ORDER
¶12         For the reasons discussed above, we REMAND this case to the regional
      office for a jurisdictional hearing in accordance with this Remand Order.




      FOR THE BOARD:                            ______________________________
                                                William D. Spencer
                                                Clerk of the Board
      Washington, D.C.




      3
        To the extent that the appellant alleged below that he requested restoration as a
      fully-recovered employee, see IAF, Tab 3 at 14-15 (referencing a May 17, 2013 email),
      such a claim is not before the Board in this matter.
