                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WILLIE L. JOHNSON,                              DOCKET NUMBER
                    Appellant,                       DA-0353-15-0011-I-2

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 13, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Sheila F. Campbell, Esquire, North Little Rock, Arkansas, for the
             appellant.

           James M. Reed, Tampa, Florida, 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 for lack of jurisdiction his appeal of the agency’s denial of his request
     for restoration following his partial recovery from a compensable injury.
     Generally, we grant petitions such as this one only when: the initial decision


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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 began his career as a City Carrier.       In 2006, following a
     compensable injury, the agency placed him in a rehabilitation assignment
     performing primarily the duties of a passport clerk.      Johnson v. U.S. Postal
     Service, MSPB Docket No. DA-0353-15-0011-I-2, Appeal File (I-2 AF), Tab 5
     at 39-41.   The appellant was reinjured in 2007, and the Office of Workers’
     Compensation Programs (OWCP) found that his injury was compensable.             Id.
     at 24-25.   In 2014, the appellant was released to return to work with certain
     medical restrictions, and he requested restoration.      Johnson v. U.S. Postal
     Service, MSPB Docket No. DA-0353-15-0011-I-1, Initial Appeal File (IAF), Tab
     6 at 15-18.    The agency conducted a search for available duties within his
     medical restrictions, found none within the local commuting area, and denied the
     appellant’s request for restoration. Id. at 10-12. This appeal followed.
¶3        The administrative judge found that the appellant’s allegations were
     sufficiently nonfrivolous to warrant a jurisdictional hearing, I-2 AF, Tab 16,
     Initial Decision (ID) at 5-6, but he nevertheless dismissed the appeal for lack of
                                                                                         3

     jurisdiction. The administrative judge found that the appellant failed to show that
     the denial of his restoration request was arbitrary and capricious. ID at 6-12.
¶4         The appellant petitions for review of the initial decision.        Petition for
     Review (PFR) File, Tab 1. The agency responds in opposition to the petition for
     review. PFR File, Tab 3.
¶5         To establish jurisdiction over a restoration appeal as a partially recovered
     individual, an 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. Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1104
     (Fed. Cir. 2011); Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012).
     The administrative judge found, and we agree, that the appellant has satisfied the
     first three jurisdictional criteria. ID at 5. Furthermore, because the appellant
     filed this appeal on October 1, 2014, before the March 30, 2015 effective date of
     the Board’s recent amendments to its jurisdictional regulations, the former
     version of the regulations, and therefore the old standard required proof of
     jurisdiction by preponderant evidence, applies in this appeal.        ID at 1-2 n.1;
     80 Fed. Reg. 4,489, 4,489, 4,496 (Jan. 28, 2015).
¶6         This case is different from cases similar to Latham because the agency did
     not abolish a limited-duty assignment because it ran out of work; rather, the
     appellant reinjured himself and was absent from work for some 7 years. The
     appellant may demonstrate that the denial of his request for restoration was
     arbitrary and capricious by showing that the agency failed to conduct a proper
     search for available work within his medical restrictions.        See Davis v. U.S.
     Postal Service, 120 M.S.P.R. 122, ¶ 12 (2013); Mubdi v. U.S. Postal Service,
     114 M.S.P.R. 559, ¶ 10 (2010). Here, the administrative judge correctly found
                                                                                       4

     that there is no indication in the record that the search was inadequate. ID at
     10-11; see IAF, Tab 6 at 10-18.
¶7        Moreover, the administrative judge correctly found that the appellant did
     not identify any available duties within the commuting area that were within his
     medical restrictions. ID at 10-11. In this regard, the appellant alleged that the
     duties of his 2006 rehabilitation assignment as passport clerk still existed, that
     they were still being performed by employee O.W., and that he should displace
     O.W. because of his allegedly superior seniority. Because rehabilitation positions
     are specially created positions tailored to the specific medical restrictions of the
     incumbent employee, when an employee no longer occupies the position, it
     evaporates and its duties are absorbed into other positions.     Hearing Compact
     Disc (HCD) (testimony of Health and Resources Manager L.B.).             Thus, the
     agency had no obligation to recreate the appellant’s former rehabilitation position
     when those duties were not both available and within his medical restrictions.
     Instead, the agency’s obligation, as it is in all restoration cases, is to conduct a
     search for available work within the local commuting area and within the
     appellant’s medical restrictions. The mere fact that his former duties exist and
     continue to be performed in some form does not mean that they are available, and
     the appellant has not identified any legal authority that permits him to bump O.W.
¶8        Moreover, the appellant has not shown that the duties that O.W. actually
     performs are within the appellant’s medical restrictions, which are more
     restrictive than O.W.’s restrictions. For example, O.W. regularly lifts parcels,
     packets of forms, and chairs weighing up to 5 pounds.          HCD (testimony of
     employee O.W.). The appellant’s most recent CA-17 imposes a lifting restriction
     of 1 pound for up to 2 hours per day and no simple grasping with his right arm.
     I-2 AF, Tab 5 at 46. Thus, while the duties of the appellant’s former passport
     clerk assignment may still exist, the agency is under no obligation to allow
     employees to perform duties that exceed their medical restrictions. Tram v. U.S.
     Postal Service, 120 M.S.P.R. 208, ¶ 6 (2013). The appellant’s right to restoration
                                                                                       5

      is conditioned on the availability of work within his medical restrictions,
      see Latham, 117 M.S.P.R. 400, ¶ 55, and the fact remains that he has not shown
      that there is any available work within his medical restrictions.       Thus, the
      appellant has not proven by preponderant evidence that the tasks of his former
      rehabilitation assignment are available and within his medical restrictions.
      Richards v. U.S. Postal Service, 118 M.S.P.R. 242, ¶ 10 (2012). It follows that
      he has not proven by preponderant evidence that the agency’s denial of his
      request for restoration was arbitrary and capricious and he has not established
      Board jurisdiction over his appeal.
¶9         The appellant reiterates on review his argument below that he can perform
      the duties of his 2006 rehabilitation assignment with accommodations, although
      he does not identify what those accommodations might be.           Dr. C.W., who
      performed an Independent Medical Evaluation on the appellant in 2010 at the
      request of OWCP, suggested that the appellant’s lifting and reaching restrictions
      could be accommodated by replacing the tripod and the 8-pound camera that a
      passport clerk uses to take passport photos with a 1-pound (or less) digital camera
      and digital printer. IAF, Tab 5 at 41. As of September 2014, the appellant had
      the additional restriction of no grasping with his right hand. IAF, Tab 7 at 41.
      Because the appellant is right-handed, see id. at 38, and because digital cameras
      are generally designed for right-handed users, it is not clear how the appellant
      could use a right-handed camera only with his left hand, even if it were much
      smaller than the camera currently in use. Even if the appellant had been able to
      show that the duties of his former rehabilitation assignment were available,
      therefore, without additional evidence concerning his ability to use a right-handed
      camera with his left hand, he has not shown that his medical restrictions can be
      accommodated.
¶10        Finally, the appellant has submitted a number of documents with his
      petition for review, including time and attendance documents and copies of
      payroll checks. PFR File, Tab 1 at 7-14. None of these documents are relevant to
                                                                                  6

the issues in this appeal, and we have not relied upon them. Accordingly, we
affirm 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 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 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
                                                                                  7

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.
