                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 26

                             Docket No. AT-0353-16-0120-I-1

                                    Dannice E. Clark,
                                        Appellant,
                                             v.
                              United States Postal Service,
                                         Agency.
                                       July 12, 2016

           Lorenzo Cobb, Esquire, Sugarhill, Georgia, for the appellant.

           Earl L. Cotton, Esquire, and Kristen Walsh, Esquire, Atlanta, Georgia, for
             the agency.

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant petitions for review of an initial decision that dismissed her
     restoration appeal for lack of Board jurisdiction. For the reasons set forth below,
     we DENY the petition for review.       Except as expressly MODIFIED by this
     Opinion and Order to apply the proper jurisdictional burden in restoration appeals
     filed after March 30, 2015, we AFFIRM the initial decision.
                                                                                            2

                                        BACKGROUND
¶2         The appellant is a Distribution Clerk for the U.S. Postal Service. Initial
     Appeal File (IAF), Tab 1 at 2. She filed the instant appeal, alleging that the
     agency improperly denied her restoration for a period of several months. Id. at 3.
¶3         Following the appellant’s initial pleading, the administrative judge issued
     two orders.      The first was an acknowledgment order, providing general
     information, such as the procedures for engaging in discovery. IAF, Tab 2. The
     second provided the jurisdictional burdens of proof for restoration claims and
     directed the appellant to file argument and evidence to meet her jurisdictional
     burden. IAF, Tab 3. After the appellant failed to respond within the allotted
     time, the administrative judge dismissed the appeal for lack of jurisdiction,
     without holding the requested hearing. IAF, Tab 1 at 2, Tab 5, Initial Decision
     (ID). The appellant has filed a petition for review. 1 Petition for Review (PFR)
     File, Tab 1. The agency has filed a response. PFR File, Tab 3.




     1
       The appellant attached a response to the administrative judge’s jurisdictional order to
     her petition for review, Petition for Review (PFR) File, Tab 1 at 17-25, with
     documentation pertaining to her requested restoration, id. at 10-16, 25-84. She claims
     that she attempted to submit these materials below, after the record on jurisdiction
     closed and the initial decision was issued. PFR File, Tab 1 at 3; IAF, Tab 3 at 9; ID.
     The record reflects that the regional office rejected submissions from the appellant
     received on December 28, 2015. IAF, Tab 7. The initial decision already had been
     issued on December 17, 2015. IAF, Tab 6. Because there was no showing that the
     arguments and evidence contained in these submissions were previously unavailable,
     we will not consider them. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
     (1980) (explaining that the Board generally will not consider an 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); Avansino v. U.S.
     Postal Service, 3 M.S.P.R. 211, 214 (1980) (finding that, under 5 C.F.R. § 1201.115,
     the Board will not consider evidence submitted for the first time with the petition for
     review absent a showing that it was unavailable before the record was closed despite the
     party’s due diligence).
                                                                                           3

                                          ANALYSIS
     The appellant’s pro forma allegations failed to satisfy her jurisdictional burden.
¶4         The appellant suggests that she did meet her jurisdictional burden, despite
     failing to respond to the administrative judge’s jurisdictional order below.
     PFR File, Tab 1 at 6–7. We disagree.
¶5         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). To establish jurisdiction and obtain a hearing
     on the merits, an appellant is required to make nonfrivolous allegations that:
     (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
     agency’s denial was arbitrary and capricious. Kingsley v. U.S. Postal Service,
     123 M.S.P.R. 365, ¶ 11 (2016); 5 C.F.R. § 1201.57(a)(4), (b). 2           An agency’s
     failure to adhere to its substantive restoration obligations under the Office of

     2
       Until recently, an appellant alleging a denial of restoration was required to prove
     Board jurisdiction by preponderant evidence. Bledsoe, 659 F.3d at 1102, 1103–04
     (citing Garcia v. Department of Homeland Security, 437 F.3d 1322, 1330, 1335–37,
     1340, 1344 (Fed. Cir. 2006) (en banc)); Latham v. U.S. Postal Service,
     117 M.S.P.R. 400, ¶ 10 (2012). However, the Board issued a new regulation effective
     March 30, 2015, that adopted a nonfrivolous allegation standard for restoration appeals.
     Kingsley, 123 M.S.P.R. 365, ¶ 10. Because the appellant filed her Board appeal after
     the effective date of that 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. Below, the administrative judge incorrectly indicated that nonfrivolous
     allegations would only entitle the appellant to a hearing on jurisdiction. IAF, Tab 3
     at 2; ID at 2. Although we modify the initial decision to correct the statement of the
     jurisdictional standard, the administrative judge’s error was harmless because he
     properly determined that the appellant failed to present nonfrivolous allegations of
     jurisdiction. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)
     (recognizing that an adjudicatory error that is not prejudicial to a party’s substantive
     rights provides no basis for reversal of an initial decision).
                                                                                       4

     Personnel Management’s regulations at 5 C.F.R. § 353.301(d), including any
     restoration obligations it has voluntarily adopted, is per se “arbitrary and
     capricious.” Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 16 (2012).
¶6         By regulation, the Board has defined a nonfrivolous allegation as “an
     assertion that, if proven, could establish the matter at issue.”           5 C.F.R.
     § 1201.4(s). The regulation further provides, “An allegation generally will be
     considered nonfrivolous when, under oath or penalty of perjury, an individual
     makes an allegation that: (1) Is more than conclusory; (2) Is plausible on its face;
     and (3) Is material to the legal issues in the appeal.” Id. Pro forma allegations
     are insufficient to meet the nonfrivolous standard.       Lara v. Department of
     Homeland Security, 101 M.S.P.R. 190, ¶ 7 (2006).
¶7         The Board has distinguished between nonfrivolous and pro forma
     allegations in other contexts that are illustrative for restoration appeals.    For
     example, in the context of an alleged constructive demotion, the Board has found
     that a conclusory allegation that an appellant was entitled to promotion to her
     upgraded position was pro forma in the absence of supportive facts or legal
     argument. Fleming v. Department of Labor, 97 M.S.P.R. 341, ¶¶ 15–16 (2004).
     For claims of marital status or partisan political discrimination in a termination
     during a probationary or trial period case, the Board has indicated that allegations
     must be more than conjecture and that an appellant must provide supporting facts
     to show the allegations are not merely pro forma. Smirne v. Department of the
     Army, 115 M.S.P.R. 51, ¶ 8 (2010). Similarly, the U.S. Court of Appeals for the
     Federal Circuit has held that an allegation of marital status discrimination must
     be supported by factual assertions and that merely conclusory pleadings are
     insufficient.   Stokes v. Federal Aviation Administration, 761 F.2d 682, 686
     (Fed. Cir. 1985). Finally, in the context of whistleblowing, the Board has found
     that an appellant must make specific and detailed allegations; vague, conclusory,
     unsupported, and pro forma allegations of alleged wrongdoing do not meet the
     nonfrivolous    pleading   standard.      El   v.   Department     of   Commerce,
                                                                                        5

      123 M.S.P.R. 76, ¶ 6 (2015); Linder v. Department of Justice, 122 M.S.P.R. 14,
      ¶ 14 (2014).
¶8          Based upon the Board’s regulatory definition of a nonfrivolous allegation
      and Board precedent in other contexts, we clarify the distinction between
      nonfrivolous and pro forma allegations for restoration cases:           To present
      nonfrivolous allegations and satisfy the jurisdictional burden in a restoration
      appeal, an appellant must present material and plausible assertions of fact that, if
      true, could establish that the agency breached its substantive restoration
      obligations, including any restoration obligations that it voluntarily adopted. A
      vague, conclusory, or unsupported allegation, such as one that essentially repeats
      the legal standard, without more, is pro forma and insufficient.
¶9          Because the appellant failed to respond to the jurisdictional order, the
      totality of her allegations were contained in her initial pleading. IAF, Tab 1.
      Concerning the first jurisdictional element, that pleading did not indicate what
      her injury was, but it described the injury as work-related and resulting in her
      being “out on” an Office of Workers’ Compensation Programs (OWCP) related
      absence, which, if true, would indicate that the absence was due to a compensable
      injury. Id. at 3, 5. For the second jurisdictional element, her pleading summarily
      alleged that she was “partially rehabilitated” and had been “released by [a] doctor
      to return to work.” Id. Though not further explained, a grievance form included
      in her pleading references “light/limited duty.” Id. at 5. Concerning the third
      element, the appellant’s pleading alleged that she returned to work on
      April 13, 2015, but, after a few hours, the agency informed her that her
      limitations could not be accommodated at that time. Id. She reportedly remained
      off work through August 17, 2015. Id. at 3, 5.
¶10         Even if we were to find that the aforementioned allegations satisfied the
      nonfrivolous standard regarding the first three elements of the appellant’s
      jurisdictional burden, she failed to present any allegations that could satisfy the
      fourth element—that the denial of restoration was arbitrary and capricious. Her
                                                                                 6

pleading includes an allegation that the agency’s actions were “unwarranted,
harsh, capricious, and punitive in nature.” Id. at 5. However, she failed to assert
any facts in support of the allegation.   Further, although she alleged that the
agency violated the applicable collective bargaining agreement, she did not
identify any restoration obligation contained therein that the agency violated or
explain how it did so.   PFR File, Tab 1 at 6; IAF, Tab 1 at 5.       Without the
assertion of pertinent facts, the appellant merely presented pro forma allegations
that the agency’s denial was arbitrary and capricious. Therefore, she failed to
satisfy her jurisdictional burden.    See Bledsoe, 659 F.3d at 1100, 1104–06
(finding that an appellant failed to meet her jurisdictional burden concerning the
fourth element because “she did not identify any vacant position which was
available within her commuting area and which she was able to perform” or
otherwise “make a non‑frivolous allegation that the Postal Service acted
arbitrarily and capriciously in not restoring her”); cf. Manning v. U.S. Postal
Service, 118 M.S.P.R. 313, ¶ 11 (2012) (finding that an appellant met the
nonfrivolous standard for the fourth jurisdictional element where it appeared that
the agency denied restoration under the mistaken belief that the appellant was not
entitled to OWCP benefits); Chang v. U.S. Postal Service, 114 M.S.P.R. 258,
¶¶ 10-11 (2010) (finding that, despite the inadequate submissions of the
appellant, the agency’s own evidence showed that it may have failed to search the
entire local commuting area as required by 5 C.F.R. § 353.301(d), satisfying the
fourth jurisdictional element); Tat v. U.S. Postal Service, 109 M.S.P.R. 562, ¶ 18
(2008) (finding that an appellant met the nonfrivolous standard for the fourth
jurisdictional element because the agency denied his request for restoration for
the stated reason that he did not have a compensable injury even though OWCP
found that his medical condition was compensable).
                                                                                        7

      The administrative judge’s dismissal on jurisdictional grounds did not amount to
      an improper dismissal for failure to prosecute.

¶11         The appellant also argues that the administrative judge’s dismissal on
      jurisdictional grounds amounted to a premature and improper dismissal for failure
      to prosecute.   PFR File, Tab 1 at 4–5.        In concert with that argument, the
      appellant’s attorney has presented an explanation for why he did not respond to
      the jurisdictional order below.    Id. at 2–3.    We find that the arguments and
      assertions provide no basis for disturbing the initial decision.
¶12         As an initial matter, we note that the explanations for the appellant’s
      failure to respond to the jurisdictional order below are unavailing.         In his
      unsworn brief, the appellant’s representative attributes his failure to respond to a
      number of factors including a death in his family, the Thanksgiving holiday, and
      a busy workload preparing for a hearing in another Board appeal. 3 Id. at 2–3.
      The agency responded, in part, with argument and supportive evidence that the
      parties had settled the other appeal the appellant’s representative identified,
      eliminating the need to prepare for a hearing in that case. Compare id. at 3, with
      PFR File, Tab 3 at 5, 17–19. The appellant did not reply to this argument and
      evidence.
¶13         Even if the appellant’s representative were busy preparing for another case,
      the Board has held that a heavy workload does not establish good cause for a late
      filing. Andre v. Department of the Army, 91 M.S.P.R. 342, ¶ 8 (2002). The
      Board also has recognized that holidays and other competing time demands do
      not constitute good cause for an untimely filing.       Melendez v. Department of
      Homeland Security, 112 M.S.P.R. 51, ¶ 14 (2009); cf. Passes v. Department of the
      Interior, 100 M.S.P.R. 33, ¶ 7 (2005) (finding that the unavailability of an


      3
        The appellant’s representative states at one point that he was preparing for two
      hearings, but only identified one appeal. PFR File, Tab 1 at 3.
                                                                                         8

      appellant’s representative did not establish good cause for untimely filing a
      petition for review). Accordingly, the explanations provided for the appellant’s
      failure to respond to the administrative judge’s jurisdictional order do not warrant
      a different result.
¶14         For her argument that the administrative judge’s dismissal on jurisdictional
      grounds amounted to a premature and improper dismissal for failure to prosecute,
      the appellant attempts to analogize the current situation to that of Bilandzich v.
      Department of the Army, 111 M.S.P.R. 301 (2009). PFR File, Tab 1 at 4. The
      appellant in that case filed an appeal under the Uniformed Services Employment
      and Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
      (USERRA), which, in relevant part, protects members of the uniformed service
      from employment discrimination, alleging that his employing agency had
      improperly charged him military leave for uniformed service performed on
      non-workdays, causing him to use other leave to perform military duty.
      Bilandzich, 111 M.S.P.R. 301, ¶ 2.          The administrative judge issued an
      acknowledgment order, noting that a person’s entitlement to USERRA benefits by
      reason of prior military service may terminate if any of a number of intervening
      events occur, directing the appellant to respond by addressing whether any of
      those events applied to his service. Id., ¶ 3. Although the appellant responded to
      a separate motion to dismiss from the agency, he failed to address the matter
      raised in the acknowledgment order. Id. Without issuing any further orders, the
      administrative judge dismissed the appeal for lack of jurisdiction. Id., ¶ 4. On
      review, the Board reversed. Id., ¶¶ 7–9. The Board found that the dismissal for
      lack of jurisdiction was, in essence, a dismissal for failure to prosecute. Id., ¶ 7.
      In doing so, the Board noted that the appellant had met his jurisdictional burden,
      which, in the context of a USERRA appeal, unconditionally entitled him to a
      Board hearing, despite his failure to respond to the administrative judge’s
      acknowledgment order. Id., ¶¶ 7–9.
                                                                                        9

¶15         Contrary to the appellant’s arguments, Bilandzich is not dispositive in the
      instant appeal; it is distinguishable from the facts at hand. First, this case does
      not involve a USERRA claim. Second, unlike the appellant in Bilandzich, the
      appellant in this matter did not meet her jurisdictional burden.        Because the
      appellant failed to meet her jurisdictional burden, despite being ordered to do so,
      the administrative judge’s dismissal on jurisdictional grounds was proper. We
      decline to adopt a standard requiring that administrative judges respond to an
      appellant’s failure to meet her jurisdictional burden with a second opportunity to
      meet that burden.
      The administrative judge did not improperly deny the appellant the opportunity to
      conduct discovery.

¶16         The appellant’s final argument is that the administrative judge erred by not
      allowing her to conduct discovery prior to dismissing the appeal for lack of
      jurisdiction.   PFR File, Tab 1 at 7.        However, the administrative judge’s
      acknowledgment order provided basic discovery instructions to the appellant and
      referred her to the applicable regulations.      IAF, Tab 2 at 3 (citing 5 C.F.R.
      §§ 1201.71-1201.85). Those basic instructions and the corresponding regulations
      both reflect an expectation that the parties will start and complete discovery with
      minimum Board intervention. IAF, Tab 2 at 3; 5 C.F.R. § 1201.71; see King v.
      Department of the Navy, 98 M.S.P.R. 547, ¶ 10 (2005) (recognizing that a party
      does not need the Board’s approval to engage in discovery, and the Board
      generally only becomes involved in discovery matters if a party files a motion to
      compel), aff’d, 167 F. App’x 191 (Fed. Cir. 2006); see also 5 C.F.R.
      § 1201.73(c)(1), (d)(3) (containing instructions and time limits for filing a motion
      to compel).     Accordingly, we find that, while the appellant is correct in
      suggesting that she was entitled to engage in discovery, her failure to avail
      herself of that opportunity is not attributable to the administrative judge.
                                                                                       10

                                                  ORDER
¶17            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
      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,    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.
                                                                                 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:


______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
