                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BRENDA A. JAKES,                                DOCKET NUMBER
                   Appellant,                        AT-0752-14-0614-B-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: January 12, 2016
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Brenda A. Jakes, Phenix City, Alabama, pro se.

           Cheryl Smith, Esquire, Peachtree City, Georgia, 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 remand initial decision,
     which dismissed her appeal with prejudice for failure to prosecute.           For the
     reasons discussed below, we GRANT the appellant’s petition for review,
     VACATE the remand initial decision, and REMAND the case to the regional
     office for further adjudication in accordance with this Order.

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                        BACKGROUND
¶2         The facts of this case are set forth more fully in the Board’s prior Remand
     Order. Jakes v. Department of Defense, Remand Order (Apr. 1, 2015) (Remand
     Order).   Briefly, the appellant was employed as a Custodial Worker with the
     Department of Defense Education Activity at Loyd Elementary School, Fort
     Benning, Georgia. Jakes v. Department of Defense, MSPB Docket No. AT-0752-
     14-0614-I-1, Initial Appeal File (IAF), Tab 5 at 43, 139. Effective February 25,
     2013, the agency removed the appellant from Federal service for physical
     inability to perform the essential functions of her position. Id. at 39-40, 139, 148.
¶3         The appellant filed a Board appeal, and the administrative judge issued an
     initial decision sustaining the agency’s removal action. IAF, Tab 1 at 18, Tab 11,
     Initial Decision. The appellant filed a petition for review of the initial decision,
     which culminated in the Remand Order. See Jakes v. Department of Defense,
     MSPB Docket No. AT-0752-14-0614-I-1, Petition for Review File, Tab 1;
     Remand Order. In pertinent part, the Board found that the appellant’s allegations
     below should have placed the administrative judge on notice that she was
     potentially alleging that the agency had violated her restoration rights. Remand
     Order, ¶¶ 18-19. The Board remanded the appeal for the administrative judge to
     provide   the   appellant   with   notice   regarding   the   jurisdictional   pleading
     requirements of a restoration appeal and an opportunity to submit evidence and
     argument on the issue of jurisdiction. Id., ¶¶ 18-20.
¶4         On remand, the administrative judge provided detailed notice regarding
     what is necessary to establish jurisdiction over a restoration appeal as a fully
     recovered, partially recovered, or physically disqualified employee, and ordered
     the appellant to submit evidence and argument raising a nonfrivolous allegation
     of jurisdiction. Jakes v. Department of Defense, MSPB Docket No. AT-0752-14-
     0614-B-1, Remand File (RF), Tab 3. The appellant failed to respond to the order
     by the deadline established by the administrative judge.            RF, Tab 4 at 1.
     Subsequently, the administrative judge issued a second order, which informed the
                                                                                         3

     appellant that he would dismiss the appeal with prejudice for failure to prosecute
     if she failed to respond to the prior order by May 11, 2015. Id. at 1-2.
¶5           On May 7, 2015, the appellant electronically filed a new appeal form,
     attaching a pleading asserting that she underwent two surgical procedures and
     that her doctor had released her to perform “clerical duties only back in
     December 2014.” Remand Petition for Review (RPFR) File, Tab 1 at 1-5. She
     further asserted that the agency had not identified any positions that she was
     qualified to perform because she lacked “any administrative background.” Id.
     at 5.    Because the pleading was filed with a new appeal form, the Atlanta
     Regional Office did not immediately forward it to the administrative judge.
     RPFR File, Tab 2 at 1. On May 15, 2015, the administrative judge, who was
     unaware of the appellant’s May 7 th filing, issued a remand initial decision
     dismissing her appeal with prejudice for failure to prosecute. 2           RF, Tab 5,
     Remand Initial Decision.
¶6           Approximately 3 weeks later, the Clerk of the Board informed the appellant
     that her May 7, 2015 pleading had not been forwarded to the administrative judge
     prior to the issuance of the initial decision and that the Board would docket the
     pleading as a petition for review of the initial decision. RPFR File, Tabs 2-3.
     Thereafter, the appellant filed a supplement to the petition for review, which
     included, among other things, a November 3, 2014 functional capacity evaluation
     (FCE) 3 indicating that the appellant had reached maximum medical improvement
     and was restricted to sedentary work. RPFR File, Tab 4 at 24-36. The agency
     responded to the petition for review, arguing that the appellant failed to raise a

     2
       After the initial decision was issued, the appellant resubmitted her May 7, 2015
     pleading by facsimile, accompanied by copies of the administrative judge’s orders and
     medical documentation. RF, Tab 7.
     3
      Although the FCE is dated November 3, 2014, it was signed by the appellant’s
     physician on November 14, 2014. RPFR File, Tab 4 at 24, 28. Other documents in the
     record alternatively refer to the FCE as being issued on November 3, 2014 and
     November 14, 2014. Compare RPFR File, Tab 5 at 57, with id. at 64.
                                                                                                4

     nonfrivolous allegation of jurisdiction over a restoration appeal and submitting a
     considerable volume of evidence that was not included in the record below.
     RPFR File, Tab 5.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶7           We find that, because the pro se appellant made a good faith effort to
     comply with the administrative judge’s second order, which the administrative
     judge was unaware of until after the remand initial decision had been issued, the
     appeal should not have been dismissed with prejudice for failure to prosecute. 4
     Although she erroneously filed her response as a new appeal, unbeknownst to the
     administrative judge, the appellant made an effort to comply with his second
     order. RPFR File, Tab 1. The severe sanction of dismissal with prejudice for
     failure to prosecute an appeal should not be imposed where a pro se appellant
     appears to be confused by Board proceedings, or has made incomplete responses
     to Board orders, but has not exhibited bad faith or evidenced any intent to
     abandon her appeal.        Chandler v. Department of the Navy, 87 M.S.P.R. 369,
     ¶ 6 (2000); Wright v. Department of the Treasury, 53 M.S.P.R. 244, 249 (1992). 5
     Accordingly, we find that dismissal for failure to prosecute was not warranted
     under the circumstances of this case.
¶8           Because we find that the appeal should not have been dismissed for failure
     to prosecute, we must address the issue of the Board’s jurisdiction over the
     appeal. See Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1102
     (Fed. Cir. 2011) (discussing the two-step process for establishing Board
     jurisdiction over restoration appeals). 6 The issue of jurisdiction is always before


     4
         On review, neither party addressed this issue. See RPFR File, Tabs 4-5.
     5
       Furthermore, although the appellant failed to respond to the administrative judge’s
     first order, failure to obey a single order ordinarily does not justify dismissal for failure
     to prosecute. See Chandler, 87 M.S.P.R. 369, ¶ 6.
     6
       Under Bledsoe, the U.S. Court of Appeals for the Federal Circuit held that to establish
     jurisdiction over a restoration appeal as a partially recovered individual, the appellant
                                                                                                  5

     the Board and may be raised by either party or sua sponte by the Board at any
     time during a Board proceeding.          Lovoy v. Department of Health & Human
     Services, 94 M.S.P.R. 571, ¶ 30 (2003). For the following reasons, we find that
     the documents submitted by the agency in the first instance on review raise
     questions regarding the Board’s jurisdiction that cannot be resolved based upon
     the   current     record.         See    Baldwin     v.     Department            of   Veterans
     Affairs, 109 M.S.P.R. 392, ¶¶ 11, 32 (2008) (holding that the Board may consider
     the agency’s documentary submissions in determining whether an appellant has
     made a nonfrivolous allegation of Board jurisdiction).
¶9         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
     previous or comparable positions. 5 U.S.C. §§ 8101-8152, 8191-8193; Tat v. U.S.
     Postal Service, 109 M.S.P.R. 562, ¶ 9 (2008); 5 C.F.R. § 353.103(b).                     In the
     present case, it is undisputed that the appellant suffered a compensable injury and
     that her separation from Federal service was a result of her compensable injury.
     See   RPFR      File,   Tab   5   at    10;   see   also    Mims       v.     Social   Security
     Administration, 120 M.S.P.R. 213, ¶ 20 (2013) (listing among the jurisdictional
     requirements for a claim of denial of restoration following partial recovery that
     the appellant was absent from his position due to a compensable injury, he
     recovered sufficiently to perform modified work, and his request to return was
     denied); 5 C.F.R. § 353.301(c) (explaining the restoration rights of physically

     must prove by preponderant evidence: (1) absence due to a compensable injury;
     (2) sufficient recovery from the injury to return to duty on a part time basis or in a less
     physically demanding position; (3) agency denial of a request for restoration; and
     (4) denial of restoration rendered arbitrary and capricious. Bledsoe, 659 F.3d at 1104;
     see Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012). Under the new
     standard set forth in 5 C.F.R. § 1201.57, an appellant must make nonfrivolous
     allegations with regard to the substantive jurisdictional elements. However, the new
     “nonfrivolous allegation” standard applies only in cases filed on or after March 30,
     2015, 80 Fed. Reg. 4489-01, 4489-01 (Jan. 28, 2015) (codified at 5 C.F.R. § 1201.57),
     and is therefore inapplicable to this appeal.
                                                                                        6

      disqualified individuals). The record reflects that the appellant received Office of
      Workers’ Compensation Programs (OWCP) compensation benefits for her
      shoulder injuries and that she was removed for physical inability to perform her
      Custodial Worker position as the result of those injuries. IAF, Tab 5 at 39-40,
      148-49, Tab 6 at 35; RPFR File, Tab 5 at 14, 20; see King v. Department of the
      Navy, 90 M.S.P.R. 341, ¶ 6 (2001) (finding that a compensable injury is a medical
      condition accepted by OWCP to be job-related and for which medical or monetary
      benefits are payable from the Employees’ Compensation Fund).
¶10        However, under regulations issued by the Office of Personnel Management,
      the appellant’s right to file a restoration appeal with the Board differs depending
      on the extent and timing of her recovery from her compensable injury. See Dean
      v. U.S. Postal Service, 115 M.S.P.R. 56, ¶ 9 (2010). In the case of a partially
      recovered employee, i.e., one who cannot resume the full range of regular duties
      but has recovered sufficiently to return to part-time or light duty or to another
      position with less demanding physical requirements, 7 an agency must make every
      effort to restore the individual to a position within her medical restrictions and
      within the local commuting area. Mubdi v. U.S. Postal Service, 114 M.S.P.R.
      559, ¶ 7 (2010); 5 C.F.R. §§ 353.102, 353.301(d).           A partially recovered
      employee may appeal to the Board only for a determination of whether the agency
      was arbitrary and capricious in denying restoration.        Urena v. U.S. Postal
      Service, 113 M.S.P.R. 6, ¶ 9 (2009); 5 C.F.R. § 353.304(c).
¶11        In contrast, a physically disqualified employee is one who for medical
      reasons is unable to perform the duties of her former or an equivalent position,
      and whose condition is considered permanent with little likelihood for
      improvement or recovery.       5 C.F.R. § 353.102.      A physically disqualified
      employee has agencywide rights to placement, as near as possible, in a position of
      the same status and pay for 1 year from the time eligibility for injury
      7
        Ordinarily, it is expected that a partially recovered employee will fully recover
      eventually. 5 C.F.R. § 353.102.
                                                                                       7

      compensation begins. Kravitz v. Department of the Navy, 104 M.S.P.R. 483, ¶ 5
      (2007); 5 C.F.R. § 353.301(c). After 1 year passes, the employee’s restoration
      rights are equivalent to those of someone who is partially recovered or fully
      recovered, as applicable. 5 C.F.R. § 353.301(c).
¶12        On the record before us, we cannot determine whether the appellant was a
      physically disqualified or partially recovered employee at the time of her
      restoration request. The evidence that the agency submits for the first instance on
      review reflects that the appellant’s request for restoration has a complicated
      history and that her level of recovery may have changed over time.             See
      RPFR File, Tab 5 at 14-85. For example, the agency submitted an August 1, 2014
      job offer for a Custodial Worker position that it extended to the appellant, which
      stated that the offer was based upon medical restrictions dated April 10, 2014. Id.
      at 25. Those medical restrictions indicated that the appellant was unable to reach
      above or with her left shoulder, and was limited to 3 hours per day of lifting a
      maximum of 20 pounds with her left shoulder. Id. at 49. However, the appellant
      rejected this offer, and in September 2014, OWCP determined that the April 10,
      2014 medical restrictions were invalid because they were provided prior to a left
      shoulder surgery that the appellant underwent in May 2014.          Id. at 29, 50.
      Subsequently, OWCP clarified that the August 1, 2014 job offer was not suitable,
      and requested that the agency offer the appellant a position within the medical
      restrictions of the November 3, 2014 FCE, which indicated that she was restricted
      to sedentary work. RPFR File, Tab 4 at 25, 30, Tab 5 at 30, 64.
¶13        Furthermore, the record does not reflect when the appellant requested
      restoration or when she became eligible for OWCP compensation, information
      that may be crucial to a determination of whether she had restoration rights as a
      physically disqualified employee when she first requested to return to work. See
      Mendenhall v. U.S. Postal Service, 74 M.S.P.R. 430, 437-38 (1997) (finding that
      an appellant’s right to restoration as a physically disqualified employee expired
      1 year after he became eligible for injury compensation); 5 C.F.R. § 353.301(c).
                                                                                     8

      Although the agency offered the appellant a Custodial Worker position in
      August 2014, the record does not reflect when she made her restoration request
      that culminated in this offer. RPFR File, Tab 6 at 25-27. In addition, although
      the record on review contains a letter from the Department of Labor indicating
      that the appellant began receiving OWCP compensation for wage loss effective
      February 25, 2013, her injury occurred almost 1 year earlier, and thus, she also
      may have been eligible for other forms of compensation beginning on an earlier
      date. Id. at 20-22; see Leach v. Department of Commerce, 61 M.S.P.R. 8, 14
      (1994) (finding that the date that an appellant became eligible for OWCP
      compensation may have been earlier than the date that she received OWCP
      benefits for wage loss); 20 C.F.R. § 10.5(a) (defining compensation under the
      Federal Employees’ Compensation Act as including amounts paid out of the
      Employees’ Compensation Fund for items such as medical treatment and medical
      examinations conducted at the request of OWCP as part of the claims
      adjudication process).
¶14         Accordingly, because we are unable to determine when the appellant
      became eligible for OWCP compensation, when she requested restoration, and
      whether she was partially recovered or physically disqualified at the time of her
      request, it is unclear whether the agency afforded the appellant the restoration
      rights to which she was entitled.   On review, the agency submits an affidavit
      indicating that it had searched vacancies in the Georgia/Alabama School District
      between November 14, 2014 and May 15, 2015, and found that the appellant did
      not meet the minimum qualification requirements for any of the vacancies. RPFR
      File, Tab 5 at 83-85. However, if the appellant requested restoration within a
      year of the date that she became eligible for OWCP compensation, and was a
      physically disqualified employee at the time of her request, she would have been
      entitled to agencywide consideration for vacancies for which she may have been
      qualified.   See 5 C.F.R. § 353.301(c); see also Hall v. Department of the
      Navy, 94 M.S.P.R. 262, ¶¶ 25-26 (2003) (finding that an agency potentially
                                                                                      9

      violated an appellant’s rights as a physically disqualified employee by failing to
      consider him for vacancies for which he was qualified outside of the local
      commuting area), modified on other grounds by Welby v. Department of
      Agriculture, 101 M.S.P.R. 17, ¶ 15 (2006).     Alternately, if the appellant was
      partially recovered when she requested restoration, or more than a year had
      passed since her eligibility for compensation, the agency may have been required
      to consider her for vacancies for which she was qualified within the local
      commuting area. See 5 C.F.R. § 353.301(c)-(d).
¶15        Therefore, because the evidence submitted by the agency on review raises
      questions regarding the Board’s jurisdiction over this appeal, we remand the
      appeal for the administrative judge to afford the parties an opportunity to submit
      evidence and argument on the following issues: (1) when the appellant became
      eligible for OWCP compensation; (2) when the appellant requested restoration;
      (3) whether the appellant was a physically disqualified or partially recovered
      employee at the time of her restoration request; and (4) what actions the agency
      took in response to the appellant’s request for restoration. If the administrative
      judge determines that the parties’ responses raise a nonfrivolous allegation of
      jurisdiction over the appeal, he shall hold a jurisdictional hearing at which the
      appellant must prove jurisdiction by preponderant evidence.         See Bledsoe,
      659 F.3d at 1102.
                                                                                   10

                                          ORDER
¶16        For the reasons discussed above, we remand this case 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.
