                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHN MCDUFFIE,                                  DOCKET NUMBER
                  Appellant,                         SF-3443-15-0659-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: January 28, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Henry E. Leinen, Pacific Grove, California, for the appellant.

           Kenneth Sogabe, San Francisco, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     regulation or the erroneous application of the law to the facts of the case; the
     administrative judge’s rulings during either the course of the appeal or the initial
     decision were not consistent with required procedures or involved an abuse of
     discretion, and the resulting error affected the outcome of the case; or new and
     material evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed. See title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).           After fully
     considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2         The appellant filed an appeal alleging that the agency committed a
     prohibited personnel practice when it failed to restore him to his prior assignment
     as a Supervisory Customs and Border Protection (CBP) Officer in Dublin,
     Ireland.   The record reflects that, from October 22, 2012, until December 14,
     2013, the appellant was assigned to work in Dublin, Ireland, in the position of
     Supervisory CBP Officer. Initial Appeal File (IAF), Tab 1. While stationed in
     Ireland, the appellant was diagnosed with a form of Lymphoma. Upon obtaining
     the diagnosis, the appellant was reassigned first to Washington, D.C., and then to
     San Francisco, California, to obtain medical treatment. Id.   After completing his
     treatment, the appellant applied for a Supervisory CBP Officer position in Dublin,
     Ireland, but was deemed ineligible because the agency requires employees to
     work in the United States 5 years before returning to an overseas assignment.
     IAF, Tab 3. On May 11, 2015, the appellant was medically cleared for worldwide
     assignment, and on June 10, 2015, he was deemed fully fit for duty as a
     Supervisory CBP Officer with no restrictions or limitations and he was ordered to
     immediately report to the Port of San Francisco. IAF, Tab 1. The appellant filed
     this appeal with the Board on June 26, 2015. Id.
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¶3         Because it appeared that the Board did not have jurisdiction over this
     appeal, the administrative judge issued an acknowledgment order, which advised
     the appellant of what was necessary to establish jurisdiction and it directed him to
     provide evidence and argument proving Board jurisdiction.               IAF, Tab 2.     In
     response, the appellant asserted that the Board has jurisdiction over the agency’s
     prohibited personnel practice of failure to restore him to his prior assignment in
     Dublin, Ireland, pursuant to 5 U.S.C. § 2302. IAF, Tab 6. The agency moved to
     dismiss the appeal for lack of jurisdiction. IAF, Tab 5.
¶4         The administrative judge found that the agency’s nonselection or failure to
     reassign is not an adverse action for which the Board has jurisdiction.               IAF,
     Tab 8, Initial Decision (ID) at 4. The administrative judge found further that,
     without an otherwise appealable action, the Board does not have jurisdiction over
     the appellant’s discrimination claim or his claim that he was subjected to a
     prohibited personnel practice when the agency failed to restore him to his prior
     duty station after his medical condition resolved.              Id.    Accordingly, the
     administrative judge granted the agency’s motion and dismissed the appeal for
     lack of jurisdiction. ID at 5.
¶5         On review, the appellant argues for the first time that he was entitled to be
     returned to his assignment in Dublin under the Family and Medical Leave Act of
     1993 (FMLA). Because the appellant has made no showing that this argument is
     based on new and material evidence not previously available despite his due
     diligence, we need not consider it.               See Banks v. Department of the
     Air Force, 4 M.S.P.R. 268, 271 (1980). 2


     2
       In any event, this argument does not provide a basis for disturbing the initial decision.
     The Board adjudicates claims that an agency failed to comply with the terms of the
     FMLA in leave-related disciplinary action appeals. Lua v. U.S. Postal Service,
     87 M.S.P.R. 647, ¶ 12 (2001). The administrative judge properly found that the Board
     lacks jurisdiction over the agency’s nonselection or failure to reassign. ID at 4. Thus,
     no further action is required regarding the appellant’s FMLA claim. See Lua,
     87 M.S.P.R. 647, ¶ 12.
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¶6        To the extent the appellant also reasserts his allegation that the agency
     committed a prohibited personnel practice when it failed to restore him to his
     prior duty station after his medical condition resolved, because the Board does
     not have jurisdiction over the underlying claim, the Board has no jurisdiction to
     adjudicate   these   remaining   claims.     See   Wren v.   Department    of   the
     Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982)
     (stating 5 U.S.C. § 2302(b) is not an independent source of Board jurisdiction);
     Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that, in the
     absence of an otherwise appealable action, the Board lacks jurisdiction over
     claims of harmful error, prohibited personnel practices, and the agency’s alleged
     failure to comply with regulations).
¶7        Finally, the appellant appears to challenge the administrative judge’s
     finding that there is no evidence in the record that he sustained an on-the-job
     compensable injury for which he might have restoration rights pursuant
     to 5 U.S.C. § 8151 and 5 C.F.R. part 353. ID at 3 n.2. The appellant asserts that
     because he was “involuntarily reassigned” for medical reasons, he is “under the
     assumption that the illness was work related.” However, a “compensable injury”
     is a medical condition accepted by the Office of Workers’ Compensation
     Programs to be job-related and for which medical or monetary benefits are
     payable from the Employees’ Compensation Fund.         See Mobley v. U.S. Postal
     Service, 86 M.S.P.R. 161, ¶ 6 (2000).      To have any restoration rights under
     5 C.F.R. part 353 based on a compensable injury, an individual must first
     establish that he was “separated or furloughed from an appointment without time
     limitation . . . as a result of a compensable injury.” 5 C.F.R. § 353.103(b). Thus,
     the right of restoration applies only to those employees who suffer from a
     compensable injury. Brooks v. U.S. Postal Service, 26 M.S.P.R. 217, 219 (1985).
     In this case, there is no evidence that the appellant sustained an on-the-job
     compensable injury for which he might have restoration rights pursuant
                                                                                  5

to 5 U.S.C. § 8151 and 5 C.F.R. part 353.         Accordingly, the appellant has
provided no basis upon which to disturb the initial decision.

                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
title 5 of the U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.        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
                                                                                6

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.
