                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     HOA LIEN,                                       DOCKET NUMBER
                         Appellant,                  SF-0752-15-0282-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 21, 2015
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Zepuor Parsanian, Tujunga, California, for the appellant.

           Nina Paul, Esquire, 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
     regulation or the erroneous application of the law to the facts of the case; the

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2        The appellant, a Distribution Clerk, suffered a compensable injury in 2005.
     Initial Appeal File (IAF), Tab 8 at 65-68. On July 16, 2013, he contended that he
     injured himself again while lifting a package. Id. at 64. He was subsequently
     placed on a temporarily totally disabled (TTD) status by his treating physician
     and remained off work until August 20, 2013, when he returned to work with
     modified duties. IAF, Tab 4 at 1, Tab 6 at 23, 61-62.
¶3        On November 15, 2013, the agency issued the appellant a notice of removal
     based on the charge of failure to follow instructions/unacceptable conduct. IAF,
     Tab 8 at 31-41. In its notice, the agency specified that the appellant had filed a
     Notice of Traumatic Injury and Claim for Continuation of Pay Compensation
     asserting that on July 16, 2013, he had suffered an injury by lifting a package
     weighing more than 5 pounds. Id. The agency stated that, in fact, the appellant
     had not lifted anything weighing more than 4 pounds.         Id.   The agency also
     specified that an investigation by the Office of the Inspector General (OIG) and a
     detective from the California Department of Insurance revealed that the appellant,
     while receiving workers’ compensation benefits for being on a TTD status due to
     the alleged July 16, 2013 injury, regularly engaged in activities outside of his
     supposed physical limitations.      Id.   Based on the OIG investigation, the
                                                                                               3

     appellant’s treating physician eliminated the appellant’s TTD designation, and he
     returned to his modified duties. Id.
¶4         The appellant grieved the notice of removal and continued to work while
     the grievance was pending until April 24, 2014, when he was arrested by OIG
     agents and charged with felonies apparently related to the fraudulent claim for
     workers’ compensation and incarcerated.          IAF, Tab 4, Tab 8 at 20.        Upon his
     arrest, the agency placed him in nonduty status until his grievance was fully
     adjudicated. IAF, Tab 8 at 20. The appellant was released from jail when he
     posted bond on April 26, 2014. IAF, Tab 4 at 6-8.
¶5         He subsequently filed this appeal, contesting the November 15, 2013 notice
     of removal, alleging that his placement on nonduty status was improper, and
     asserting that the agency failed to restore him after he was released from jail on
     April 26, 2014. 2     IAF, Tab 1.      He also alleged that the agency committed
     prohibited personnel practices. Id.
¶6         In the initial decision, the administrative judge subsequently dismissed the
     appeal for lack of jurisdiction without holding a hearing. IAF, Tab 10, Initial
     Decision (ID). In particular, he found that the appellant failed to nonfrivolously
     allege Board jurisdiction over the notice of removal and the agency’s decision to
     place him in an unpaid status on April 24, 2014, as adverse actions. ID at 5. The
     administrative judge further found that the appellant failed to make a
     nonfrivolous allegation that his placement on nonduty status was due to his
     compensable injury, rather than due to his charged misconduct, arrest, and
     incarceration.   ID at 8.    Thus, the administrative judge found that the Board


     2
       The appellant also alleged that the agency improperly failed to restore him based on a
     partial day letter (PDL) that the agency issued him on December 18, 2013. On that
     date, the agency sent the appellant home before he worked a full shift because it had no
     work available within his restrictions. IAF, Tab 8. The administrative judge found
     that, to the extent that the appellant wants to pursue the claim of failure to restore based
     on the PDL, he must file a separate appeal with the Board. IAF, Tab 10, Initial
     Decision at 4.
                                                                                            4

     lacked jurisdiction over the appeal. Id. Additionally, the administrative judge
     found that, absent an appealable action, the Board did not have jurisdiction to
     adjudicate the appellant’s allegation that the agency engaged in prohibited
     personnel practices. Id.
¶7         In his petition for review, the appellant alleges that the administrative judge
     erred in finding that his placement in a nonduty status was unrelated to his
     compensable injury. 3 Petition for Review File, Tab 1. He also states that he is
     still receiving workers’ compensation payments. 4 Id.
¶8         To establish jurisdiction over a restoration appeal as a partially recovered
     individual, the appellant must prove by preponderant evidence that: (1) he was
     absent from his position due to a compensable injury; (2) he 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 him;
     (3) the agency denied his request for restoration; and (4) the denial was arbitrary
     and capricious. Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012). If
     the appellant makes nonfrivolous allegations of jurisdiction regarding all four
     prongs of the jurisdictional standard, he is entitled to a jurisdictional hearing. See
     Paszko v. U.S. Postal Service, 119 M.S.P.R. 207, ¶ 8 (2013).


     3
       In his petition, the appellant represents that his criminal case has been dismissed.
     However, the most recent submission regarding that case shows that it was dismissed
     because the state was unable to proceed within the statutory time and that the state
     would be refiling the case at a later time. IAF, Tab 4 at 24.
     4
       To the extent that the appellant is contending that the notice of removal and his
     placement into an unpaid status on April 24, 2014, constitute appealable adverse
     actions, the administrative judge correctly found that the Board lacks jurisdiction over
     any such actions under 5 U.S.C. chapter 75. ID at 5. For a U.S. Postal Service
     employee to appeal an adverse action under chapter 75, he must: (1) be 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) have completed
     1 year of current continuous service in the same or similar positions. Toomey v. U.S.
     Postal Service, 71 M.S.P.R. 10, 12 (1996). The administrative judge found that the
     appellant failed to satisfy the first jurisdictional requirement, and we discern no basis
     for disturbing this finding on review.
                                                                                      5

¶9        Here, the appellant failed to make a nonfrivolous allegation that he was
     absent from his position due to a compensable injury, the first prong of the
     jurisdictional standard. The Board has held that an employee who was absent
     from work for cause, rather than for reasons substantially related to his
     compensable injury, is not entitled to restoration.           Frye v. U.S. Postal
     Service,   102 M.S.P.R.    695,    ¶9    (2006);   King v.    Department   of   the
     Navy, 90 M.S.P.R. 341, ¶ 8 (2001).       A valid reason for placement in nonduty
     status, unrelated to a compensable injury, precludes restoration rights. Mobley v.
     U.S. Postal Service, 86 M.S.P.R. 161, ¶ 7 (2000). The appellant’s misconduct,
     specified by the agency as alleged fraudulent receipt of workers’ compensation
     benefits, was the cause of his placement in nonduty status, not his compensable
     injury. Accordingly, we find that the administrative judge properly found that the
     appellant failed to make a nonfrivolous allegation that he was absent from his
     position as a result of a compensable injury and correctly dismissed the appeal for
     lack of jurisdiction without holding a hearing. ID at 1, 8.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
          You have the right to request review of this final decision by the
     United States 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
                                                                                     6

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.
      If you are interested in securing pro bono representation for your appeal to
the 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.
