                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     THADDEUS A. KNIGHT,                             DOCKET NUMBERS
                  Appellant,                         AT-0353-14-0002-B-1
                                                     AT-0353-14-0897-I-1
                  v.

     DEPARTMENT OF JUSTICE,
                 Agency.                             DATE: February 16, 2016



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Leslie Deak, Esquire, Washington, D.C., for the appellant.

           Jeannette Wise, Esquire, and Marisa C. Ridi, Esquire, Washington, D.C.,
             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 both of his restoration appeals that are now before the Board 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     on an erroneous interpretation of statute or 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, and based on the
     following points and authorities, 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).

                                       BACKGROUND
¶2         Both of these appeals pertain to the agency’s alleged denial of the
     appellant’s restoration to duty following his partial recovery from a compensable
     injury. 2 In a June 2, 2014 appeal, the appellant alleged that the agency arbitrarily
     and capriciously denied him restoration following his partial recovery from the
     injury. Knight v. Department of Justice, MSPB Docket No. AT-0353-14-0897-I-
     1, Initial Appeal File (IAF), Tab 1. Concurrently, the appellant had before the
     Board another restoration appeal, which the Board remanded to the Atlanta
     Regional Office for a jurisdictional hearing. Knight v. Department of Justice,
     MSPB Docket No. AT-0353-14-0002-B-1, Remand File (RF), Tab 1 at 6. The
     appeals were joined for the purpose of adjudication. IAF, Tab 7 at 1-2.



     2
       The Board has recently considered another appeal from this appellant in which he
     alleged that the agency failed to restore him after recovery from a compensable injury.
     Knight v. Department of Justice, MSPB Docket No. AT-0353-15-0107-I-1, Final Order
     (Sept. 21, 2015). The Office of Workers’ Compensation Programs vacated its decision
     finding that the appellant was fully recovered on December 17, 2014. Id. at 2.
                                                                                      3

¶3         The appellant was a Special Agent with the Federal Bureau of Investigation
     (FBI). He was injured while on duty on April 27, 2001. He was later removed
     effective May 21, 2004, for having been in a continuous nonwork status since
     November 12, 2002. Petition for Review (PFR) File, Tab 8 at 6 n.2. After he
     requested restoration as a partially recovered employee, he was eventually offered
     the position of Operational Management Specialist, GS-0301-13, in the agency’s
     Miami Division. RF, Tab 11 at 30-31, 96.
¶4         Prior to the agency’s restoration offer, the appellant underwent two separate
     medical evaluations. Id. at 77-88. The second of these evaluations, the results of
     which the agency received on August 26, 2013, showed his medical condition had
     improved and that he was partially recovered. Id. at 78. By September 6, 2013,
     the agency had identified several available positions in the Miami Division. Id. at
     69. Based on the appellant’s qualifications, the agency determined that he might
     be considered for two of those positions: Operational Support Technician, GS-8,
     and Intelligence Analyst, GS-14. Id. at 66-67.
¶5         Although the Intelligence Analyst position appeared to be the best
     placement opportunity, the selection process for that position included
     testing.   Id. at 63-64, 67.   No testing was being offered at that time due to
     budgetary constraints.   Id.; RF, Tab 28 at 5-6.     The agency thus considered
     creating an Assistant Chief Security Officer position at the GS-13, step 10, level.
     RF, Tab 11 at 60.     The agency proposed a modified position description that
     would meet the appellant’s medical restrictions and then sought approval for the
     position from FBI Headquarters. Id. at 57, 60. The October 2013 government
     shutdown delayed that process.      RF, Tab 38, Hearing Compact Disc (HCD)
     (testimony of M.H.). Ultimately, the Security Division at Headquarters declined
     the request to create a modified position. Id. The agency’s Human Resource
     Division, however, recommended that the appellant be offered a position as an
     Operational Management Specialist, GS-13, step 10. RF, Tab 11 at 48-51, 53-55.
     The agency offered the appellant this position on December 5, 2013. Id. at 45-47.
                                                                                      4

     In response, he asked the Office of Workers’ Compensation Programs (OWCP) to
     determine whether the position was suitable in light of his restrictions. Id. at
     38-39. The position was modified to meet his medical restrictions and re-offered
     to him on January 28, 2014. Id. at 30-36. Rather than accept the position, the
     appellant asked to be considered for a position as an Equal Employment
     Opportunity (EEO) Investigator, which was currently open in the Miami Division,
     as a reasonable accommodation under the Rehabilitation Act. Id. at 28. Because
     that position is normally a detail assignment given to a Special Agent, and the
     appellant’s medical restrictions meant that he did not meet the physical
     requirements for the Special Agent position, the agency declined to place him as
     an EEO Investigator and again offered him the Operational Management
     Specialist position. Id. at 27-28.
¶6         The appellant advanced a different theory of his restoration claim in each of
     the two appeals.     In Docket No. AT-0353-14-0002-B-1, he argued that the
     agency’s denial of restoration was arbitrary and capricious based upon the delay
     between OWCP’s finding that he was partially recovered and the agency’s
     limited-duty job offer. RF, Tab 1 at 5-6. In Docket No. AT-0353-14-0897-I-1,
     he contended that the agency’s offer of the modified Operational Management
     Specialist position was an arbitrary and capricious denial of restoration and that
     the agency instead should have offered him the EEO Investigator position. IAF,
     Tab 1 at 15-17. After a hearing, the administrative judge dismissed the appeals
     for lack of jurisdiction. RF, Tab 36, Initial Decision (ID) at 2, 10.

                                          ANALYSIS
¶7         On review, the appellant advances two main arguments. First, he asserts
     that the agency acted arbitrarily and capriciously when it offered him the
     Operational Management Specialist position.       PFR File, Tab 5 at 10-16.     He
     argues that the administrative judge ignored the undisputed evidence that he was
     unqualified for the position, which he maintains “require[s] specialized
                                                                                                5

     knowledge and skills related to . . . management and organizational theory and
     practice.”   Id. at 11.        He argues that he lacks the necessary skills in human
     resources, budgeting, and financial management for the position, and instead, he
     offers only law enforcement experience and a law degree.                  Id. at 12-13.   He
     argues that the agency created the position to set him up for failure and intended
     to remove him from service shortly after his restoration.                Id. at 12.   He also
     asserts that the agency would have discovered that he was unqualified for the
     position had it engaged in the interactive process for reasonable accommodation
     under the Rehabilitation Act. Id. at 14-15.
¶8          In his second argument, the appellant asserts that the administrative judge
     erred when he found that the agency did not breach its obligation to restore him
     when    it   declined     to    offer    him   the   Assistant   Chief     Security   Officer
     position. Id. at 16-24. He argues that the administrative judge erred in finding
     that the agency lacked any obligation to create a modified position over the
     Security Division’s objections when the Operational Management Specialist
     position also was available.            Id. at 16 (citing ID at 6-7 n.3).       Because the
     Operational Management Specialist position is not an appropriate reasonable
     accommodation under the Rehabilitation Act, he argues, the agency was required
     to offer him the Assistant Chief Security Officer position unless it could
     demonstrate that doing so would impose an undue hardship. Id. at 17. He argues
     that the administrative judge improperly shifted to him the agency’s burden to
     prove that it would have imposed an undue hardship to offer him that
     position.    Id. at 18-19. Further, the appellant argues that neither the OWCP nor
     the Office of Personnel Management requires an agency to modify a position
     description before a partially recovered employee is restored to duty. Id. at 20-
     21. He asserts that the Assistant Chief Security Officer position could have been
     modified, and based on their testimony, the management of the Miami Division
     wanted to offer him the position. Id. at 21-22. That the agency denied him the
     position, he asserts, was “the essence of capriciousness.” Id. at 22. He further
                                                                                          6

      asserts that the delay between the Miami Division’s approval of the modified
      Assistant Chief Security Officer position and its offer of the modified Operational
      Management Specialist position was so lengthy as to be arbitrary and
      capricious. Id. at 23-24.
¶9          The appellant is seeking to reframe the issue in Docket No. AT-0353-14-
      0897-I-1 by arguing that the agency should have offered him the Assistant Chief
      Security Officer position rather than the Operational Management Specialist
      position.    Docket No. AT-0353-14-0897-I-1 pertains to the agency’s alleged
      failure to place him in an EEO Investigator position that was open while he was
      seeking restoration.      IAF, Tab 1 at 15-17; ID at 3.   The administrative judge
      eliminated the other issues in the appeal as a sanction after the appellant failed to
      comply with an order “to make [his] appeal more definite and certain,” that is, to
      clarify the issues. IAF, Tab 4 at 2-5, Tab 7 at 2, Tab 8 at 2. The appellant has
      raised a new issue on review by attempting to shift focus from the agency’s
      alleged failure to offer him the EEO Investigator position to the alleged failure to
      offer him the Assistant Chief Security Officer position.       The Board 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.    Banks   v.   Department    of   the   Air
      Force, 4 M.S.P.R. 268, 271 (1980). Such an argument also would fail for the
      same reason the administrative judge cited below; namely, a partially recovered
      employee may appeal only from an agency’s denial of restoration and only on
      grounds that such a denial was arbitrary and capricious. Latham v. U.S. Postal
      Service, 117 M.S.P.R. 400, ¶ 10 (2012); ID at 9.
¶10         As for the appellant’s allegation that the agency’s delay in placing him was
      arbitrary and capricious, which the administrative judge addressed in Docket No.
      AT-0353-14-0002-B-1, we find it reasonable that the agency sought a second
      medical determination. RF, Tab 12 at 77-88; HCD (testimony of M.H.); Hardy v.
      U.S. Postal Service, 104 M.S.P.R. 387, ¶¶ 20-21 (finding that the agency’s
                                                                                        7

      decision to await a final determination from OWCP was not arbitrary and
      capricious where the agency was faced with conflicting assessments of the
      appellant’s abilities, and there was no indication that OWCP had made a final
      determination regarding his restrictions), aff’d, 250 F. App’x 332 (Fed. Cir.
      2007). The agency received the second determination, wherein the appellant was
      found to be partially recovered, on August 26, 2013. RF, Tab 11 at 76, 88. That
      date is the proper starting point from which to consider whether the agency’s
      search for a restoration position took a reasonable amount of time. The record
      shows that the agency continuously sought to find positions within the appellant’s
      medical restrictions between August 26, 2013, and December 5, 2013, the date
      upon which the agency first offered him the Operational Management Specialist
      position. Id. at 45-47, 53-55, 57-58, 60, 62-64, 66-72, 74.
¶11        The appellant’s assertion that he is unqualified for the Operational
      Management Specialist position is a post hoc rationalization for not accepting the
      restoration position that he was offered. The record does not show that he ever
      raised these concerns with the agency or even developed this argument before the
      administrative judge.    Conversely, he did raise concerns with the OWCP
      regarding the proffered position’s suitability in light of his medical restrictions.
      RF, Tab 11 at 38-39. The agency addressed these concerns by modifying the
      position description. Id. at 30-36. Rather than accept the modified position, the
      appellant instead sought to be placed as an EEO Investigator, a position for which
      he was not physically qualified. Id. at 25-28. Although he now argues that the
      Operational Management Specialist position requires specialized knowledge and
      experience that he lacks, PFR File, Tab 5 at 10-14, the agency reasonably
      believed that he could be assigned duties for which he was well qualified. The
      appellant is a former New York City police officer and FBI Special Agent, and he
      graduated from law school.       HCD (testimony of M.H.).         As the agency’s
      Classification Specialist explained, the position description includes “a range of
      complex functions related to the administrative, investigative, and security
                                                                                         8

      responsibilities of the office” and “describes a wide range of duties and will allow
      management a great deal of flexibility when making work assignments.” RF, Tab
      11 at 55; see id. at 33-36.
¶12         Finally, the appellant argues that the agency failed to treat him substantially
      the same as it would have treated a disabled employee under the Rehabilitation
      Act. See 5 C.F.R. § 353.301(d). He argues that the agency failed to engage in the
      interactive process required by the Rehabilitation Act when offering the
      Operational Management Specialist position.          PFR File, Tab 5 at 10-12;
      see 29 C.F.R. § 1630.2(o)(3).    We find that the agency’s efforts to assist the
      appellant to find a job within his medical limitations was neither arbitrary nor
      capricious.   Instead, the evidence shows that the agency acted in good faith
      during the interactive reasonable accommodation process. See generally Brown
      v. Department of the Interior, 121 M.S.P.R. 205, ¶¶ 19-23 (2014) (finding that an
      employee failed to establish that the agency did not reasonably accommodate her
      disability where the agency offered her two suitable positions); Okleson v. U.S.
      Postal Service, 90 M.S.P.R. 415, ¶ 13 (2001) (finding that a detail did not
      constitute a funded vacant position within the meaning of Equal Employment
      Opportunity Commission regulations).
¶13         He likewise asserts that the administrative judge failed to require the
      agency to show that placing him in the Assistant Chief Security Officer position,
      with or without modifications, would impose an undue hardship. PFR File, Tab
      5 at 17-21; see 29 C.F.R. § 1630.9(a).       The appellant filed a discrimination
      complaint on August 26, 2013, which appears to be ongoing, and some of the
      issues in that complaint overlap with the matters addressed in these appeals. RF,
      Tab 11 at 14, 16-17, 19-20. However, this is not a mixed-case appeal, and as
      such, the Board lacks jurisdiction over any claim of disability discrimination in
      the absence of an otherwise appealable action. Latham, 117 M.S.P.R. 400, ¶ 58.
      Although an appellant’s disability discrimination claim may bear on the issue of
      arbitrariness and capriciousness, Latham, 117 M.S.P.R. 400, ¶ 58 & n.27, the
                                                                                 9

administrative judge did not need to reach that issue, ID at 6-7 n.3. Agencies
may accommodate an employee’s disability through means such as modifying or
adjusting the duties of the position at issue, or by reassigning the employee to a
vacant position whose duties the employee can perform. Smith v. U.S. Postal
Service, 113 M.S.P.R. 1, ¶ 6 (2009). Here, the agency offered the appellant a
modified Operational Management Specialist position, which satisfied its
obligations under 5 C.F.R. § 353.301(d). Indeed, after the appellant voiced his
concerns as to whether the position was suitable in light of his medical
restrictions, RF, Tab 11 at 38-39, the agency further modified the position, id. at
30-36.   The agency had no obligation to modify the Assistant Chief Security
Officer position that the appellant wanted over its Security Division’s objections
when another viable option was available.           Accordingly, the appellant’s
arguments are unavailing, and we affirm the initial decision that dismissed his
appeals for lack of jurisdiction.

                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).
                                                                                   10

     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.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing 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.
