       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 LOIS M. JOHNSON,
                     Petitioner,

                           v.

       UNITED STATES POSTAL SERVICE,
                  Respondent.
             ______________________

                      2013-3044
                ______________________

   Petition for review of the Merit Systems Protection
Board in Nos. SF0353090587-R-1 and SF0353090587-X-1.
                ______________________

                Decided: June 11, 2013
                ______________________

   LOIS M. JOHNSON, of Los Angeles, California, pro se.

    JOSHUA A. MANDLEBAUM, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
TODD M. HUGHES, Deputy Director. Of counsel on the
brief was MICHELLE WINDMUELLER, Appellate Attorney,
United States Postal Service, of Washington, DC.
                  ______________________
2                            LOIS JOHNSON   v. USPS




       Before DYK, PROST, and REYNA, Circuit Judges.
PER CURIAM.
    Lois M. Johnson seeks review of a final decision of the
Merit Systems Protection Board (“Board”). We affirm-in-
part, reverse-in-part, and remand-in-part.
                      BACKGROUND
    Ms. Johnson is a United States Postal Service
(“USPS”) employee with medical restrictions currently
working as a forklift operator. In order to accommodate
Ms. Johnson, the USPS created various modified assign-
ments that fit within her medical restrictions. This
practice, however, came to an end with the advent of the
USPS’s National Reassessment Process and Ms. Johnson
was placed on leave with wage-loss compensation status
(“WLC status”). Accordingly, on April 8, 2009, the USPS
discontinued Ms. Johnson’s modified position and
searched for an “operationally necessary” position within
her service district. With the exception of a one month
temporary position as a passport fair representative, the
USPS found no work suitable to Ms. Johnson. She re-
mained on WLC status until October of 2012, when she
accepted a position as a USPS forklift operator.
    After she was placed on WLC status, Ms. Johnson ap-
pealed to the Board with two arguments: it was improper
to discontinue her position because the work she had been
performing was transferred to others; and the USPS
discriminated against her by denying her a reasonable
accommodation. The administrative judge dismissed the
appeal for lack of jurisdiction. On appeal, the full Board
reversed the initial decision and remanded the appeal.
The Board found a third issue that had not been raised by
Ms. Johnson: the USPS was required to search Ms. John-
son’s entire local commuting area for an available posi-
tion, but had only searched Ms. Johnson’s service district.
 LOIS JOHNSON   v. USPS                                 3



On remand, the administrative judge found for the USPS
on the first two issues. With respect to the discontinua-
tion issue, the administrative judge found that redistribu-
tion of Ms. Johnson’s duties to others was not improper,
citing Hunt v. U.S. Postal Serv., 114 M.S.P.R. 379, 383, ¶
11 (2010). The administrative judge also found that the
USPS did not discriminate against Ms. Johnson or fail to
reasonably accommodate her disability. On the search
issue, Ms. Johnson prevailed. The administrative judge
ordered the USPS to restore Ms. Johnson to her position
effective April 8, 2009, and to pay Ms. Johnson back pay.
Both parties petitioned for review by the full Board.
    Ms. Johnson appealed the denial of her discrimination
accommodation claim, but did not did not seek Board-
review of the adverse decision regarding her discontinua-
tion. Following some procedural irregularities not rele-
vant here, the Board adopted the administrative judge’s
decision except as to the remedy for the incomplete
search. The Board found that the proper remedy was a
retroactive search of the entire local commuting area, and
the payment of back pay if and only if the retroactive
search revealed a position that Ms. Johnson could have
held.
    In the period between Ms. Johnson’s petition and the
Board’s decision, there was a change in law regarding
when the USPS can discontinue a position: on February
24, 2012, the Board decided Latham v. U.S. Postal Ser-
vice, 117 M.S.P.R. 400 (2012), which overruled Hunt. In
contrast to Hunt, which gave the USPS broad “authority
to economize its operations by consolidating the tasks
being performed by limited duty employees and reassign-
ing them to the non-limited duty employees who would be
otherwise performing them,” 114 M.S.P.R. at 383, ¶ 11,
the new standard under Latham only allows the USPS to
“discontinue a modified assignment consisting of tasks
within an employee’s medical restrictions . . . where the
duties of that assignment no longer need to be performed
4                            LOIS JOHNSON   v. USPS



by anyone or those duties need to be transferred to other
employees in order to provide them with sufficient work.”
117 M.S.P.R. at 421, ¶ 31. To address this issue, the
USPS filed supplemental briefing, supported by a declara-
tion and some documents. Ms. Johnson did not respond
or otherwise mention Latham, or the discontinuation
issue, before the Board. The Board did not consider the
USPS’s supplemental brief nor did it mention Latham,
Hunt, or the discontinuation issue.
    Now, on appeal to this court, Ms. Johnson argues that
the USPS improperly discontinued her position—an
argument that Ms. Johnson had presented to the admin-
istrative judge, but did not raise before the full Board.
                       DISCUSSION
    We affirm the Board’s decision unless it is: “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c); Tunik v. Merit Sys. Prot. Bd., 407 F.3d 1326,
1330 (Fed. Cir. 2005).
    At the outset, we note that Ms. Johnson does not con-
test the Board’s decision regarding her discrimination
claim. We find no error in the Board’s decision. Accord-
ingly, we affirm the Board’s decision on that issue.
    Ms. Johnson does, however, raise three arguments on
appeal. First, she contends that her position was improp-
erly terminated under the now controlling standard set
forth in Latham. Second, she claims that the USPS’s
submission of a supplemental brief and declaration,
addressing Latham, violated her Due Process rights.
Finally, she alleges that the USPS improperly conducted
the retroactive search ordered by the full Board in Octo-
ber 2012.
 LOIS JOHNSON   v. USPS                                 5



     The administrative judge rejected Ms. Johnson’s ar-
gument that her position was improperly discontinued,
citing Hunt, 114 M.S.P.R. at 383, ¶ 11, which was control-
ling at that time. While both parties’ petitions for review
were pending, the Board overruled Hunt and announced a
new standard for when the USPS may discontinue a
modified position. Latham, 117 M.S.P.R. at 421-22, ¶ 31.
As the USPS concedes, Latham provides it with less
flexibility than Hunt. Despite having the opportunity to
do so, the Board never considered whether Ms. Johnson’s
position was improperly discontinued under the Latham
standard, but rather adopted the administrative judge’s
decision with respect to Ms. Johnson’s discontinuation
under the Hunt standard.
    Although Ms. Johnson did not seek full-Board review
of the discontinuation issue, that issue is not necessarily
waived. Rather, because the issue was raised before the
administrative judge but not the full Board, it is pre-
served for review by this court unless Ms. Johnson know-
ingly waived or abandoned it. See Bosley v. Merit Sys.
Prot. Bd., 162 F.3d 665, 668-69 (Fed. Cir. 1998). The
USPS concedes that there is no basis upon which we could
find that Ms. Johnson knowingly waived or abandoned
the discontinuation issue. Accordingly, the discontinua-
tion issue is properly before us.
    Both parties agree that Latham should be applied ret-
roactively to Ms. Johnson’s discontinuation. We cannot,
however, apply the Latham standard now because more
fact-finding is necessary. While the administrative judge
made limited factual findings relevant to the Hunt stand-
ard, the different requirements of Latham were not
addressed. See Latham, 117 M.S.P.R. at 421-23, ¶¶ 31-
33. To its credit, the USPS attempted to present the full
Board with facts relevant to the Latham standard by
attaching a declaration and supporting documents to a
supplemental brief. The Board, however, never decided
whether the USPS had satisfied the requirements of
6                            LOIS JOHNSON   v. USPS



Latham. Accordingly, we remand to the Board for further
fact-finding and instruction to apply the now controlling
Latham standard.
    Ms. Johnson also claims that the USPS’s submission
of a supplemental brief and declaration, addressing
Latham, violated her Due Process rights. This argument
is both waived and without merit. It is waived because
Ms. Johnson did not present it to the Board. Ms. Johnson
cannot now object to the supplemental briefing on appeal.
Moreover, any error flowing from the submission is harm-
less as the Board did not rely upon the supplemental
material when considering either party’s petition for
review. Finally, because we remand for consideration of
her discontinuation claim under Latham, Ms. Johnson
will have an opportunity on remand to address the merits
of the USPS’s supplemental brief and to submit relevant
material of her own.
    Ms. Johnson also alleges that the USPS improperly
conducted the retroactive search ordered by the full Board
in October 2012. We do not have jurisdiction to entertain
this argument in the first instance. Rather, if Ms. John-
son believes the USPS failed to comply with the Board’s
order concerning the retroactive search, she must request
the Board enforce its order before appealing to this court.
See Shoenrogge v. Dep’t of Justice, 385 F. App’x 996 (Fed.
Cir. 2010); Weed v. Social Sec. Admin., 571 F.3d 1359
(Fed. Cir. 2009).
    AFFIRMED-IN-PART, REVERSED-IN-PART,
            REMANDED-IN-PART
                          COSTS
    Each party shall bear its own costs.
