                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     GREGORY TURNER,                                 DOCKET NUMBER
                 Appellant,                          AT-0353-14-0838-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 28, 2015
                   Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Gregory Turner, Memphis, Tennessee, pro se.

           Cynthia R. Allen, Memphis, Tennessee, 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 initial decision, which
     dismissed his restoration appeal for lack of jurisdiction without a hearing. For
     the reasons discussed below, we GRANT the appellant’s petition for review,
     VACATE the 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant, a City Carrier for the agency, suffered a compensable injury
     on October 27, 2006. Initial Appeal File (IAF), Tab 12 at 20. On August 5,
     2010, the appellant filed a Board appeal, claiming that the agency had denied him
     restoration to duty under 5 C.F.R. part 353, subpart C. Turner v. U.S. Postal
     Service, MSPB Docket No. AT-0353-10-0960-I-1, Initial Appeal File (0960 IAF),
     Tab 1. On March 31, 2011, the administrative judge issued an initial decision
     finding that the agency had arbitrarily and capriciously denied the appellant
     restoration and ordering the agency to return the appellant to duty. 0960 IAF,
     Tab 39, Initial Decision.   Neither party petitioned for review, and the initial
     decision became the final decision of the Board. See 5 C.F.R. § 1201.113.
¶3        On September 27, 2013, the appellant filed a petition for enforcement of
     that decision.   Turner v. U.S. Postal Service, MSPB Docket No. AT-0353-10-
     0960-C-1, Compliance File (0960 CF), Tab 1.              On July 25, 2014, the
     administrative judge issued a compliance initial decision denying the petition for
     enforcement. 0960 CF, Tab 11, Compliance Initial Decision (CID). However,
     because it appeared to the administrative judge that the appellant was raising a
     new claim of failure to provide restoration, she docketed the instant appeal on his
     behalf. CID at 3-4.
¶4        In this appeal, the appellant alleged that the agency denied him restoration
     when, beginning on April 1, 2013, it reduced his 8-hour per day limited duty
     assignment to 6 hours per day. IAF, Tab 5 at 4. After the parties filed evidence
     and argument on the issue, the administrative judge issued an initial decision
     dismissing the appeal for lack of jurisdiction without a hearing. IAF, Tab 13,
     Initial Decision (ID) at 1, 5.   She found that the appellant failed to make a
     nonfrivolous allegation of Board jurisdiction over the appellant’s alleged denial
     of restoration in September 2013. ID at 4-5 & n.4.
¶5        The appellant has filed a petition for review, arguing that the administrative
     judge overlooked much of the record evidence in rendering her decision. Petition
                                                                                           3

     for Review (PFR) File, Tab 3. The agency has filed a response in opposition,
     PFR File, Tab 4, and the appellant has filed a reply to the agency’s response, PFR
     File, Tab 6.
¶6         To establish jurisdiction over a restoration appeal under 5 C.F.R.
     § 353.304(c), 2 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). 3     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 appellant makes nonfrivolous allegations
     of jurisdiction to all four elements of the jurisdictional standard, he is entitled to
     a jurisdictional hearing if he requested one.       See Bledsoe, 659 F.3d at 1102.
     Here, it is undisputed that the appellant made nonfrivolous allegations as to the
     first two jurisdictional elements. ID at 4.
¶7         Regarding the third jurisdictional element, the administrative judge found
     that the appellant failed to make a nonfrivolous allegation that the agency denied
     him restoration because the reduction in his limited duty hours was at his doctor’s
     request. ID at 4-5. We disagree. The appellant began requesting 2 hours of
     leave per day beginning in late March or early April 2013, which he alleged was
     due to the agency’s reduction of his work hours. IAF, Tab 1 at 85-87, Tab 6 at 4.

     2
       Effective March 30, 2015, the Board amended its regulations concerning the burden of
     proof for establishing jurisdiction over restoration appeals filed under 5 C.F.R.
     § 353.304. 5 C.F.R. § 1201.57(a)(4) (2015). The amended regulations do not apply to
     the instant appeal, however, because they apply only to appeals filed on or after March
     30, 2015. 80 Fed. Reg. 4489, 4489 (Jan. 28, 2015).
     3
       It is undisputed that the appellant is a partially recovered employee with restoration
     appeal rights under 5 C.F.R. § 353.304(c). ID at 3.
                                                                                          4

     The administrative judge improperly limited the scope of the appellant’s claim to
     September 2013. IAF, Tab 4 at 4. If the reduction in hours beginning in April
     2013 was not at the appellant’s request, then the agency’s reasons for reducing
     his limited duty hours are immaterial to the third jurisdictional element. The fact
     that the agency reduced those hours is sufficient to establish a nonfrivolous
     allegation that it denied the appellant restoration.       See Scott v. U.S. Postal
     Service, 118 M.S.P.R. 375, ¶ 9 (2012) (determining that the partial elimination of
     a previously afforded limited duty assignment may constitute an appealable denial
     of restoration). The agency’s reasons for reducing the appellant’s limited duty
     hours go to the fourth jurisdictional element, i.e., whether the denial of
     restoration was arbitrary and capricious.
¶8         Regarding the fourth jurisdictional element, we disagree with the
     administrative judge that the appellant failed to make a nonfrivolous allegation
     that it was arbitrary and capricious for the agency to reduce his limited duty hours
     from 8 to 6 per day. ID at 5 n.4. The administrative judge found that the agency
     reduced the appellant’s limited duty hours in September 2013—around the time
     that it received letters from the appellant’s doctor stating that the appellant was
     working 6 hour per day at her direction and that he was just barely able to cope
     with that workload. ID at 1; IAF, Tab 12 at 11-12. Yet, as discussed above, the
     appellant indicated that he was claiming a violation of restoration rights
     beginning on April 1, 2013. IAF, Tab 5 at 4. The record shows that the appellant
     routinely was taking 2 hours of leave every day, beginning on March 22, 2013,
     through the date that he filed the instant appeal. 4 IAF, Tab 1 at 26-87. Moreover,
     as he correctly argues on review, his doctor indicated on his Office of Workers’
     Compensation Programs (OWCP) Forms CA-17, Duty Status Report, from
     April 1, 2013, through January 1, 2014, that he was able to work 8 hours per day,

     4
       The vast majority of the appellant’s 2-hour absences are coded 049, which indicates
     leave without pay related to a compensable injury. IAF, Tab 1 at 26-85; see U.S. Postal
     Service Time and Attendance Handbook F-21, § 345.1(a), Appendix B.
                                                                                           5

     40 hours per week, with restrictions. Id. at 13-18; PFR File, Tab 3 at 6. The
     record contains no indication of what prompted the agency to reduce the
     appellant’s working hours on or about April 1, 2013. In fact, the declaration from
     the agency’s Injury Compensation Specialist appears to indicate that the appellant
     should have been allowed 8 hours of work during that time. IAF, Tab 11 at 6,
     9-10. Without knowing the reason for the agency’s action, we cannot determine
     whether that action was arbitrary and capricious.
¶9         Furthermore, the record contains three September 2013 letters from the
     appellant’s doctor, indicating that the appellant should work no more than 6 hours
     per day. IAF, Tab 12 at 11-14. The record also shows that on June 11, 2014, the
     agency’s doctor stated that the appellant should be restricted to working 6 hours
     per day and that OWCP accepted these restrictions.           Id. at 17-19, 25-26. In
     addition, on October 24, 2014, the appellant wrote a letter to OWCP protesting a
     job offer in part because it was for more than 6 hours per day. 5 Id. at 23-24.
     However, none of these events, which far postdate the initial reduction of the
     appellant’s limited duty hours in the spring of 2013, shed any light on what
     occurred between April and September 2013.           Next, although the appellant’s
     doctor indicated in two September 2013 letters that the appellant should work no
     more than 6 hours per day, the Form CA-17 Duty Status Reports issued by the
     same doctor on the same dates indicated that the appellant had no such restriction.
     IAF, Tab 1 at 15-16, Tab 12 at 11-12. On this record, the appellant has made a
     nonfrivolous allegation that the agency acted arbitrarily and capriciously when it
     reduced his work hours beginning in April 2013, including during and after
     September 2013. See Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994)
     (finding that, in determining whether the appellant has made a nonfrivolous
     allegation of jurisdiction entitling him to a hearing, the administrative judge may

     5
       Effective November 14, 2014, OWCP terminated the appellant’s wage loss benefits on
     the basis that he failed to accept suitable work for 6 hours per day. IAF, Tab 12 at 22,
     30-32.
                                                                                            6

      consider the agency’s documentary submissions; however, to the extent that the
      agency’s evidence constitutes mere factual contradiction of the appellant’s
      otherwise adequate prima facie showing of jurisdiction, the administrative judge
      may not weigh evidence and resolve conflicting assertions of the parties and the
      agency’s evidence may not be dispositive).
¶10         On remand, the administrative judge should make findings regarding the
      circumstances surrounding the reduction in the appellant’s working hours in late
      March and early April of 2013. 6 In light of these findings and the conflicting
      medical evidence described above, the administrative judge should make new
      findings on whether the agency acted arbitrarily and capriciously in denying the
      appellant restoration from September 2013 onward. Because the alleged denial of
      restoration began approximately 6 months before the appellant filed his petition
      for enforcement, there also is a question regarding timeliness.          See 5 C.F.R.
      § 1201.22(b)(1) (a Board appeal generally must be filed within 30 days of the
      effective date of the action being appealed). The jurisdictional and timeliness
      questions appear to be inextricably intertwined, and we are therefore unable to
      determine whether the appeal is untimely. See Wright v. U.S. Postal Service,
      105 M.S.P.R. 425, ¶ 9 (2007).




      6
        The initial decision indicates that the appellant requested a hearing, ID at 1, but we
      were unable to locate a hearing request in the record. On remand, the appellant should
      clarify whether he indeed is requesting a hearing. If so, he is entitled to one.
                                                                                      7

                                          ORDER
¶11      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.
