                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 22

                            Docket No. DC-0353-15-0736-I-1

                                 Monifah A. Hamilton,
                                        Appellant,
                                            v.
                             United States Postal Service,
                                         Agency.
                                       June 7, 2016

           Gale Robert Thames, Washington, D.C., for the appellant.

           David Forde, Esquire, Washington, D.C., for the agency.

                                         BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her appeal for lack of jurisdiction. For the reasons discussed below,
     we DENY the appellant’s petition for review, and AFFIRM the initial decision
     AS MODIFIED by this Opinion and Order to apply the jurisdictional standard set
     forth in 5 C.F.R. § 1201.57 for restoration appeals filed on or after March 30,
     2015, and to dismiss the appellant’s suspension claim for lack of jurisdiction
     because she failed to nonfrivolously allege that she is a confidential Postal
     Service employee entitled to appeal an adverse action to the Board.
                                                                                          2

                                       BACKGROUND
¶2         The appellant, a nonpreference-eligible employee, formerly was employed
     by the agency as a Postal Inspector. Initial Appeal File (IAF), Tab 1 at 5. On or
     about March 19, 2013, she suffered an on-the-job injury to her left knee and was
     placed in a limited-duty status until approximately September 2014. IAF, Tab 7
     at 4, 11-12, Tab 8 at 1.
¶3         On July 25, 2014, she was diagnosed with Idiopathic Angioedema, a
     condition characterized by symptoms of swelling and hives, which the appellant
     contends was brought on by job-related stress. IAF, Tab 7 at 17, 26, Tab 8 at 2.
     In or around September 2014, she stopped working, 1 and on October 17, 2014,
     she filed a claim for compensation with the Office of Workers’ Compensation
     Programs (OWCP) in connection with her Idiopathic Angioedema. IAF, Tab 7
     at 17-19. OWCP denied her claim for compensation, finding that she failed to
     show that her medical condition arose during the course of her employment. Id.
     at 20-22.
¶4         In or around September 2014, the appellant filed for disability retirement.
     Id. at 11-12. Despite her application for disability retirement, on October 10,
     2014, she accepted a limited-duty Postal Inspector assignment, which involved,
     among other things, performing administrative tasks, gathering, reviewing, and
     creating documents, and assisting on case investigations.         Id. at 15-16.    The
     appellant, however, did not return to work in this position and instead remained
     absent from duty from approximately September 2014 until July 16, 2015, when




     1
       The appellant contends that, as of September 25, 2014, she involuntarily was absent
     from work because the agency informed her that she could not work due to her
     diagnosis of Idiopathic Angioedema. IAF, Tab 7 at 17, Tab 10 at 2; Petition for Review
     File, Tab 3 at 34. According to the agency, the appellant voluntarily was absent due to
     symptoms related to her Idiopathic Angioedema. IAF, Tab 7 at 8.
                                                                                          3

     she was separated from Federal service on a disability retirement. IAF, Tab 9 at
     8, Tab 10 at 2; Petition for Review (PFR) File, Tab 3 at 34.
¶5         In May 2015, the appellant filed the instant appeal asserting that, despite
     her doctor’s determination that she could return to work, the agency failed to
     restore her, ordered her home, and required her to use annual and sick leave.
     IAF, Tab 1 at 6. The administrative judge construed such allegations as raising a
     potential suspension claim and a denial of restoration claim. IAF, Tab 3. She
     issued a show cause order informing the appellant of her jurisdictional burdens
     and directing her to file evidence and argument to prove Board jurisdiction over
     such claims. 2   Id.   In response, the appellant asserted that the Board has
     jurisdiction over her suspension claim because she is a confidential employee.
     IAF, Tab 4 at 3, Tab 8 at 2. The appellant also asserted that she was absent due
     to a compensable injury because her Idiopathic Angioedema was aggravated by
     work and the agency denied her restoration by offering her an invalid
     limited‑duty job offer. IAF, Tab 8 at 2.
¶6          The agency filed a motion to dismiss asserting that the Board lacks
     jurisdiction over the appellant’s restoration claim because she failed to raise
     nonfrivolous allegations that she was absent due to a compensable injury or that

     2
       The administrative judge’s show cause order inaccurately informed the appellant that
     a constructive suspension may arise when an agency places an employee on enforced
     leave in order to inquire into the employee’s ability to perform. IAF, Tab 3 at 4. In
     Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 10 (2014), the Board held that an
     agency’s placement of an employee on enforced leave for more than 14 days constitutes
     an appealable suspension under 5 U.S.C. § 7512(2), not a constructive suspension. A
     constructive suspension appeal instead concerns leave that appears to be voluntary, but
     actually was not, and typically involves an employee-initiated absence in which the
     appellant alleges that she lacked a meaningful choice and the absence was caused by the
     agency’s improper actions. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8 & n.3
     (2013). Because we find that the appellant is not an employee entitled to appeal an
     adverse action to the Board, we use the term “suspension” in this Opinion and Order to
     refer to the appellant’s potential claim without deciding whether such a claim would
     constitute a suspension or constructive suspension.
                                                                                          4

     she was denied restoration. IAF, Tab 7 at 6-7. The agency also argued that the
     Board lacks jurisdiction over the appellant’s suspension claim because her
     absence was voluntary due to stress and hives, not any improper action by the
     agency, and because she was not a supervisor, manager, or confidential employee
     entitled to appeal an adverse action to the Board. Id. at 7-9.
¶7         Without holding the appellant’s requested hearing, the administrative judge
     issued an initial decision dismissing the appeal for lack of jurisdiction.        IAF,
     Tab 11, Initial Decision (ID). Regarding the appellant’s restoration claim, the
     administrative judge found that she failed to nonfrivolously allege that she was
     separated 3 from her position due to a compensable injury, that she was a partially
     recovered employee, that she was denied restoration, or that the agency acted
     arbitrarily and capriciously.   ID at 6-7.    Regarding the appellant’s suspension
     claim, the administrative judge found that the appellant did not offer any
     evidence or argument in support of her claim, but, in any event, Postal Inspectors
     are not confidential employees entitled to appeal an adverse action to the Board.
     ID at 3-4 n.3.
¶8         The appellant has filed a petition for review in which she reasserts her
     arguments below that the agency denied her restoration under 5 C.F.R. part 353
     and that the Board has jurisdiction over her suspension claim because she was a
     confidential employee. PFR File, Tab 3 at 1-4. The agency has opposed the
     appellant’s petition. PFR File, Tab 5.




     3
       Although the typical restoration appeal involves a situation in which a fully or
     partially recovered employee exercises a restoration right after having been separated
     from Federal service for a period of time, the Board has held that an employee need not
     show that she was separated from duty, merely that she was absent from her position
     due to a compensable injury, e.g., on sick leave or leave without pay. Wilson v. U.S.
     Postal Service, 98 M.S.P.R. 679, ¶ 9 (2005).
                                                                                            5

                                           ANALYSIS
      The appellant failed to establish Board jurisdiction over her restoration claim
      under the standard set forth in the Board’s revised regulation, effective March 30,
      2015.
¶9          The Federal Employees’ Compensation Act and the implementing
      regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353
      provide, inter alia, that Federal employees who suffer compensable injuries enjoy
      certain rights to be restored to their previous or comparable positions. 5 U.S.C.
      § 8151(b); Scott v. U.S. Postal Service, 118 M.S.P.R. 375, ¶ 6 (2012); 5 C.F.R.
      § 353.301. Under OPM’s regulations, such employees have different substantive
      rights based on whether they have fully recovered, partially recovered, or are
      physically disqualified from their former or equivalent positions.             5 C.F.R.
      § 353.301. Partially recovered employees are those who “though not ready to
      resume the full range” of duties, have “recovered sufficiently to return to
      part‑time or light duty or to another position with less demanding physical
      requirements.” 5 C.F.R. § 353.102.
¶10         OPM’s regulations require that agencies “make every effort to restore in
      the local commuting area, according to the circumstances in each case, an
      individual who has partially recovered from a compensable injury and who is able
      to return to limited duty.” 5 C.F.R. § 353.301(d). The Board has jurisdiction to
      review whether an agency’s denial of restoration to a partially recovered
      employee was arbitrary and capricious.        Bledsoe v. Merit Systems Protection
      Board, 659 F.3d 1097, 1103-04 (Fed. Cir. 2011); 5 C.F.R. § 353.304(c).
¶11          Until recently, an appellant alleging a denial of restoration was required to
      prove Board jurisdiction by preponderant evidence.                Bledsoe, 659 F.3d
      at 1103-04. 4 However, the Board issued a new regulation effective March 30,


      4
        Prior to the decision of the U.S. Court of Appeals for the Federal Circuit in Bledsoe,
      the Board had held that jurisdiction over a restoration appeal was established by
                                                                                             6

      2015, that adopted a nonfrivolous jurisdictional standard for restoration appeals.
      80 Fed. Reg. 4,489, 4,496 (Jan. 28, 2015) (codified in pertinent part at 5 C.F.R.
      § 1201.57(a)(4), (b)); 79 Fed. Reg. 18,658, 18,659-61 (Apr. 3, 2014); see Garcia
      v. Department of Homeland Security, 437 F.3d 1322, 1338, 1343 (Fed. Cir. 2006)
      (indicating that the Board may adopt a nonfrivolous jurisdictional standard for an
      appeal by changing its regulations on jurisdiction in accordance with notice and
      comment rulemaking procedures).
¶12         Thus, to establish jurisdiction over her claim that she was denied
      restoration as a partially recovered employee, the appellant was required to make
      nonfrivolous 5 allegations of the following: (1) she was absent from her position
      due to a compensable injury; (2) she 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 her; (3) the agency denied her
      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). 6
      See Bledsoe, 659 F.3d at 1104 (applying the former preponderant evidence

      nonfrivolous allegations that the agency violated an appellant’s restoration rights under
      5 C.F.R. part 353. See, e.g., Chen v. U.S. Postal Service, 97 M.S.P.R. 527, ¶ 12 (2004).
      Subsequent to Bledsoe, however, the Board found it necessary to overrule Chen in
      Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012), and to apply a
      preponderant evidence standard for jurisdictional determinations in restoration appeals.
      5
        Nonfrivolous allegations of Board jurisdiction are allegations of fact that, if proven,
      could establish a prima facie case that the Board has jurisdiction over the matter at
      issue. Coleman v. Department of the Army, 106 M.S.P.R. 436, ¶ 9 (2007); 5 C.F.R
      § 1201.4(s).
      6
        Although only particular groups of Postal Service employees have the right to appeal
      an adverse action to the Board, the Board may exercise jurisdiction over a Postal
      Service employee’s claim that the agency violated her restoration rights under 5 C.F.R.
      part 353 regardless of whether the employee is preference eligible, a supervisory or
      managerial employee, or an employee engaged in personnel work in other than a purely
      nonconfidential clerical capacity. See Allen v. U.S. Postal Service, 73 M.S.P.R. 73, 76
      (1997); 5 C.F.R. §§ 353.102-.103.
                                                                                           7

      jurisdictional standard); Latham, 117 M.S.P.R. 400, ¶ 10 (same); 5 C.F.R.
      § 1201.57.
¶13         Because the appellant filed her Board appeal after the March 30, 2015
      effective date of the new regulation, she only was required to make nonfrivolous
      allegations of jurisdiction to obtain a hearing on the merits.                5 C.F.R.
      § 1201.57(a)(4), (b); IAF, Tab 1.      The record reflects that the administrative
      judge applied the former preponderant evidence standard and dismissed the
      appellant’s restoration claim for lack of jurisdiction without holding a hearing
      because she found that the appellant failed to make nonfrivolous allegations
      entitling her to a jurisdictional hearing at which she would be required to prove
      jurisdiction by preponderant evidence. 7 ID at 1, 8. Nonetheless, applying the
      jurisdictional standard set forth in the Board’s revised regulation, we find that the
      appellant has failed to establish Board jurisdiction over her restoration claim.
¶14         The appellant failed to nonfrivolously allege that she was absent from her
      position due to a compensable injury. A compensable injury is defined as one
      that is accepted by OWCP as job-related and for which medical or monetary
      benefits are payable from the Employees’ Compensation Fund.              Frye v. U.S.
      Postal Service, 102 M.S.P.R. 695, ¶ 9 (2006). The determination of whether an
      individual suffers from a compensable medical condition is within the exclusive
      purview of OWCP.       Simonton v. U.S. Postal Service, 85 M.S.P.R. 189, ¶ 11
      (2000).   The appellant alleged that her absence beginning in approximately
      September 2014 was related to her Idiopathic Angioedema. IAF, Tab 7 at 17-18,
      Tab 8 at 2.    Because OWCP determined that this medical condition was not

      7
        Whether the administrative judge applied a nonfrivolous or preponderant evidence
      jurisdictional standard is somewhat unclear. Compare ID at 8 (finding that the
      appellant failed to raise nonfrivolous allegations entitling her to a jurisdictional
      hearing), with ID at 6 (finding that the appellant “failed to demonstrate” that she was
      separated from her position due to a compensable injury and “failed to establish” that
      she was partially recovered).
                                                                                            8

      job‑related, IAF, Tab 7 at 20-22, the appellant has no restoration rights under
      5 C.F.R. part 353 based on this condition, see, e.g., McFarlane v. U.S. Postal
      Service, 110 M.S.P.R. 126, ¶ 16 (2008) (finding that the appellant failed to raise a
      nonfrivolous allegation of jurisdiction because OWCP had denied his claim of
      recurrence, and, thus, he did not have a compensable injury that would entitle him
      to restoration).   Although the appellant contends that she appealed OWCP’s
      decision and has submitted additional medical documentation to OWCP, she has
      not alleged that OWCP ever determined her medical condition to be job‑related.
      IAF, Tab 8 at 2.
¶15         To the extent the appellant is alleging that her absence beginning in
      September 2014 was due to her compensable knee injury, the record reflects that,
      in October 2014, the agency offered, and the appellant accepted, a limited-duty
      assignment. IAF, Tab 7 at 15-16, Tab 8 at 2. The administrative judge found
      unavailing the appellant’s argument that this was not a valid job offer because it
      did not inform her of the requisite job duties. 8 ID at 7. To the contrary, the
      administrative judge found that the duties of the modified assignment and the
      physical requirements were clearly listed on the job offer, and that the appellant
      offered no evidence or argument to establish that this job offer was not in
      compliance with her physical limitations. Id. Accordingly, we agree with the
      administrative judge that the appellant failed to nonfrivolously allege that she
      was denied restoration as a partially recovered employee based on her




      8
        The appellant also argued that the job offer was invalid because, when she signed the
      form, a box indicating the date her supervisor signed the form stated “date signed,” but
      was later changed to state “date offered.” IAF, Tab 8 at 1, 5-6. We agree with the
      administrative judge that such a distinction is inconsequential and does not change the
      fact that the appellant accepted the limited-duty assignment on October 10, 2014. ID
      at 7 n.5.
                                                                                            9

      compensable knee injury or that the agency acted arbitrarily or capriciously. 9 ID
      at 6-7.
      The appellant is not an employee with the right to appeal an adverse action under
      chapter 75 to the Board.
¶16         The appellant asserts that, as of September 25, 2014, she was involuntarily
      absent from work because the agency informed her that she could not work due to
      her diagnosis of Idiopathic Angioedema. IAF, Tab 7 at 17, Tab 8 at 2. Because
      OWCP deemed this medical condition not compensable, IAF, Tab 7 at 20-22,
      such allegations are properly analyzed as a suspension claim, not a restoration
      appeal, see Romero v. U.S. Postal Service, 121 M.S.P.R. 606, ¶ 2 n.1 (2014);
      Bean, 120 M.S.P.R. 397, ¶ 13 n.7.
¶17         A Postal Service employee has a right to appeal an adverse action to the
      Board, if she (1) is a preference eligible, a management or supervisory employee,
      or an employee engaged in personnel work in other than a purely nonconfidential
      clerical capacity, and (2) has completed 1 year of current continuous service in




      9
        The administrative judge also determined that the appellant failed to nonfrivolously
      allege that she was partially recovered because her medical documentation indicated
      that she had permanent restrictions due to her compensable knee injury that prevented
      her from returning to her position in law enforcement. ID at 6. A partially recovered
      employee is one who has recovered sufficiently to return to work part-time, to light
      duty, or to a position with less demanding physical requirements, with the expectation
      that she will fully recover eventually. 5 C.F.R. § 353.102. In contrast, a physically
      disqualified individual is one who cannot, or for medical reasons should not, perform
      the duties of her former position, and who is not expected to improve or recover.
      See id. To the extent the appellant was attempting to assert rights as a physically
      disqualified employee, we find that her rights were properly analyzed by the
      administrative judge as those of a partially recovered employee because, after 1 year, a
      physically disqualified employee’s rights are the same as those of a fully or partially
      recovered employee, as applicable. IAF, Tab 8 at 1 (reflecting that the appellant’s
      compensable knee injury occurred on March 19, 2013); see 5 C.F.R. § 353.301(c).
      Regardless, because the appellant failed to nonfrivolously allege that she was denied
      restoration, she cannot establish Board jurisdiction.
                                                                                               10

      the same or similar positions. 10        See 39 U.S.C. § 1005(a)(4)(A); 5 U.S.C.
      § 7511(a)(1)(B)(ii); Clark v. U.S. Postal Service, 118 M.S.P.R. 527, ¶ 7 (2012).
¶18          The administrative judge dismissed the appellant’s suspension claim for
      lack of jurisdiction because she found that the appellant was not a preference
      eligible, manager, supervisor, or an employee engaged in confidential personnel
      work entitled to appeal an adverse action to the Board. 11 ID at 3-4 n.3. The
      record reflects that the appellant completed 1 year of current continuous service
      in her Postal Inspector position. IAF, Tab 7 at 11. On her appeal form, the
      appellant acknowledges that she is a nonpreference‑eligible employee.                 IAF,
      Tab 1 at 5. In addition, the appellant does not contend, and the record does not
      suggest, that her duties as a Postal Inspector qualify her as a manager or
      supervisory employee.        IAF, Tab 7 at 13-14; see Bolton v. Merit Systems


      10
         The administrative judge failed to afford the appellant proper jurisdictional notice as
      to what she must do to establish that she is an employee entitled to appeal an adverse
      action to the Board. See Burgess v. Merit Systems Protection Board, 758 F.2d 641,
      643-44 (Fed. Cir. 1985). Nonetheless, the lack of Burgess notice did not prejudice the
      appellant’s substantive rights because her pleadings demonstrate that she was aware of
      the jurisdictional prerequisites and the initial decision also notified her regarding which
      Postal Service employees have the right to appeal an adverse action to the Board.
      IAF, Tab 4 at 3; ID at 3-4 n.3; PFR File, Tab 3 at 3; see Mapstone v. Department of the
      Interior, 106 M.S.P.R. 691, ¶ 9 (2007) (stating that an administrative judge’s failure to
      provide an appellant with proper Burgess notice can be cured if the initial decision puts
      the appellant on notice of what he must do to establish jurisdiction); Panter v.
      Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory
      error that is not prejudicial to a party’s substantive rights provides no basis for reversal
      of an initial decision).
      11
         In finding that the appellant was not a manager or confidential employee, the
      administrative judge incorrectly relied upon Nigg v. U.S. Postal Service, 91 M.S.P.R.
      164 (2002), aff’d, 321 F.3d 1381 (Fed. Cir. 2003). In Nigg, the Board did not address
      whether the appellant was an employee entitled to appeal an adverse action to the
      Board, but disposed of the appeal by holding that the substance of the appeal was
      outside the Board’s jurisdiction. Nigg, 91 M.S.P.R. 164, ¶ 6. The Federal Circuit
      affirmed the Board’s decision without addressing whether the appellant was an
      employee. Nigg, 321 F.3d at 1383-84.
                                                                                           11

      Protection Board, 154 F.3d 1313, 1317-18 (Fed. Cir. 1998) (using the definition
      of supervisor set forth by the National Labor Relations Board (NLRB) and found
      at 29 U.S.C. § 152(11) as “any individual having authority, in the interest of the
      employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign,
      reward, or discipline other employees, or responsibly to direct them, or to adjust
      their grievances, or effectively to recommend such action, if in connection with
      the foregoing the exercise of such authority is not of a merely routine or clerical
      nature, but requires the use of independent judgment”); Waldau v. Merit Systems
      Protection Board, 19 F.3d 1395, 1398-99 (Fed. Cir. 1994) (adopting the NLRB’s
      definition of a management employee as an employee who formulates and
      effectuates management policies by expressing and making operative the
      decisions of his or her employer).
¶19         The appellant does assert, however, that she is a confidential employee
      under 39 U.S.C. § 1005(a)(4)(A)(ii). IAF, Tab 4 at 3. In particular, she asserts
      that she handled confidential information in the course of investigations, the
      result of which directly affected agency operations in the area of personnel. Id.
      She also asserts that she testified in Federal court on numerous occasions. 12 Id.
      The Board has adopted the definition of the term “confidential employees” set
      forth by the NLRB, which includes “those employees who: (1) ‘[A]ssist and act


      12
         On review, the appellant also asserts that she handled sensitive employee personnel
      information in the course of investigating administrative cases, worked closely with
      management and human resources to compile sensitive information, and enforced
      various laws and policies. PFR File, Tab 3 at 3. The Board ordinarily will not consider
      evidence or argument raised for the first time in a petition for review absent a showing
      that it is based on new and material evidence not previously available despite the
      party’s due diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
      (1980). However, we have considered the appellant’s arguments on review because of
      the notice issues addressed supra n.10 and because her new arguments implicate the
      Board’s jurisdiction, an issue that is always before the Board and may be raised by any
      party or sua sponte by the Board at any time during a Board proceeding. See Lovoy v.
      Department of Health & Human Services, 94 M.S.P.R. 571, ¶ 30 (2003).
                                                                                             12

      in a confidential capacity to persons who formulate, determine and effectuate
      management policy in the field of labor relations,’ or (2) ‘regularly have access to
      confidential information concerning anticipated changes which may result from
      collective-bargaining negotiations.’” Law v. U.S. Postal Service, 77 M.S.P.R. 30,
      34 (1997) (quoting McCandless v. Merit Systems Protection Board, 996 F.2d
      1193, 1199 (Fed. Cir. 1993)).
¶20         Although the appellant may have handled sensitive employee personnel
      information in the course of administrative investigations, mere access to
      personnel    information      is   insufficient   to   establish    confidential   status.
      See Benifield v. U.S. Postal Service, 40 M.S.P.R. 50, 54 (1989) (finding
      confidential information for purposes of 39 U.S.C. § 1005(a)(4)(A)(ii) refers to
      information regarding collective bargaining and labor relations, not to employees’
      personal    data);   see   also    Hayden    v.   Merit   Systems    Protection    Board,
      No. 2016‑1291, slip op. at 2, 6-7 (Fed. Cir. May 10, 2016) (finding a human
      resources specialist who handled unemployment claims for former Postal Service
      employees and represented the Postal Service at unemployment compensation
      hearings was not a confidential employee despite her access to confidential
      agency databases). 13      Moreover, the appellant’s position description does not
      indicate that her job duties involved assisting or acting in a confidential capacity
      in the field of labor relations or having access to confidential information
      concerning the collective bargaining process. 14 IAF, Tab 7 at 13. Accordingly,




      13
         The Board may choose to follow nonprecedential decisions of the Federal Circuit if,
      as here, it finds the reasoning persuasive. See, e.g., Erlendson v. Department of Justice,
      121 M.S.P.R. 441, ¶ 6 n.2 (2014).
      14
         The fact that the appellant’s position description indicates that her position is
      “nonbargaining,” IAF, Tab 7 at 13, also does not constitute a nonfrivolous allegation
      that she is a confidential employee because not all unrepresented employees have
      appeal rights to the Board, only those excluded by law from collective bargaining
                                                                                       13

      we find that the appellant has failed to nonfrivolously allege that she is a
      confidential employee entitled to appeal an adverse action to the Board under
      39 U.S.C. § 1005(a)(4)(A)(ii), and we dismiss her suspension claim for lack of
      jurisdiction.

                                           ORDER
¶21         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      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


      because of their status as a manager, supervisor, or a confidential employee under
      39 U.S.C. § 1202, see McCandless, 996 F.2d at 1201; Wilson v. U.S. Postal Service,
      109 M.S.P.R. 60, ¶ 10 (2008).
                                                                                 14

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. Additional information is available at the
court’s website, www.cafc.uscourts.gov. 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. 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.
