                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     NORKHAM SYAVONG,                                DOCKET NUMBER
                 Appellant,                          SF-0353-13-0602-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: October 10, 2014
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Zepuor Parsanian, Tujunga, California, for the appellant.

           Aaron Goben, Long Beach, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision that
     dismissed the appellant’s restoration 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the 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 nonpreference-eligible appellant is a City Carrier. Initial Appeal File
     (IAF), Tab 1 at 1.        In March 2012, the Office of Workers’ Compensation
     Programs (OWCP) accepted his claim for an occupational disease. IAF, Tab 6
     at 34.     In June 2012, the agency provided the appellant with a modified
     assignment (limited duty) that provided for 1 hour of casing mail daily, which he
     accepted. Id. at 9. In November 2012, at the request of the Department of Labor,
     a physician conducted a Second Opinion Examination and Work Capacity
     Evaluation of the appellant and concluded that the appellant was capable of
     performing his usual job without any limitations. Id. at 16-33. OWCP proposed
     terminating the appellant’s compensation based on that examination, although the
     parties indicate that OWCP has not issued a decision on that proposal. Id. at 12;
     Petition for Review (PFR) File, Tab 1 at 3, Tab 3 at 8.
¶3            The appellant’s treating physician, Edward Mittleman, M.D., subsequently
     prepared a CA-17 Duty Status Report on June 20, 2013, identifying certain work
                                                                                            3

     limitations, which he attributed to the appellant’s “c/s disc syndrome.” 2 IAF,
     Tab 1 at 8. Specifically, Dr. Middleman indicated that the appellant was still
     injured but could: (1) sit as required; (2) lift 25 pounds continuously; (3) lift and
     carry 35 pounds intermittently; and (4) bend, stoop, and twist for 3½ hours per
     day intermittently. IAF, Tab 1 at 8.
¶4         A few days later, the agency issued a new modified assignment,
     limited-duty job offer. Id. at 7. The offer was for 8 hours of work per day as a
     City Carrier, with duties requiring 1 hour of casing mail for delivery and 7 hours
     of delivering mail.    Id.   The work required the physical ability to lift up to
     25 pounds continuously, lift 35 pounds intermittently, simple grasping (8 hours),
     intermittent reaching above the shoulder, standing, and walking (8 hours),
     intermittent bending and twisting of neck (3½ hours), and driving a vehicle
     (7 hours). Id. The appellant refused the new job offer stating that it involved
     “more than 3½ hours of bending, twisting, and stooping.” Id. After the appellant
     refused the offer, the agency advised him, on June 26, 2013, not to report to duty
     unless he decided to accept the most recently offered modified assignment
     limited-duty offer or he received notification that a revised modified assignment
     was available. 3 IAF, Tab 6 at 8.
¶5         The appellant filed a restoration appeal with the Board, raising a claim of
     prohibited discrimination and requesting a hearing on his appeal. IAF, Tab 1
     at 1-2, 4. The administrative judge dismissed the appellant’s restoration appeal
     for lack of jurisdiction without holding the requested hearing.           IAF, Tab 25,
     Initial Decision (ID) at 2, Tab 1 at 2. The administrative judge found that the

     2
       Dr. Mittleman was referring to the appellant’s cervical spondylosis, which is one of
     the conditions identified in the claim accepted by OWCP that resulted in the appellant’s
     June 26, 2012 modified assignment for limited duty. IAF, Tab 6, at 9, 34.
     3
       After the appellant filed his restoration appeal, the agency asked OWCP to issue a
     ruling on whether the agency’s job offer was suitable. IAF, Tab 13 at 7, 10. However,
     the parties indicate that OWCP has not issued a suitability ruling. PFR File, Tab 1 at 2,
     Tab 3 at 8.
                                                                                         4

     appellant made nonfrivolous allegations that he was absent from work due to a
     compensable injury, that he had recovered sufficiently to return to work and
     perform in modified positions, but that the Board had no jurisdiction over his
     appeal because he failed to nonfrivolously allege that the agency denied his
     request for restoration. ID at 9-10, 14. The administrative judge found that the
     appellant failed to make a nonfrivolous allegation that the agency’s limited-duty
     offer on June 25, 2013, was so unreasonable as to constitute a denial of
     restoration. ID at 12. The administrative judge also found that the appellant
     failed to make a nonfrivolous allegation that the agency rescinded his former
     restoration job assignment when it offered him a full-time limited-duty position
     consistent with his revised medical restrictions. ID at 13. The administrative
     judge concluded that the appellant’s complaints merely challenged the details and
     circumstances of the agency’s restoration. ID at 14.
¶6            Based on her finding that the appellant did not make a nonfrivolous
     allegation that the agency denied him restoration, the administrative judge did not
     consider whether the agency acted arbitrarily and capriciously concerning the
     appellant’s request for restoration. ID at 14. The administrative judge also found
     that, without jurisdiction over the restoration appeal, the Board had no
     jurisdiction to consider the appellant’s claim of prohibited discrimination.       ID
     at 14.    The appellant filed a petition for review and the agency responded in
     opposition to his petition. PFR File, Tabs 1, 3.
¶7            An individual who has partially recovered from a compensable injury may
     appeal to the Board for a determination of whether the agency is acting arbitrarily
     and capriciously in denying restoration.           Paszko v. U.S. Postal Service,
     119 M.S.P.R. 207, ¶ 8 (2013) (citation omitted); 5 C.F.R. § 353.304(c). In order
     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
                                                                                      5

     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. See Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097,
     1104 (Fed. Cir. 2011); see also Latham v. U.S. Postal Service, 117 M.S.P.R. 400,
     ¶ 10 (2012).    If the appellant makes nonfrivolous allegations to support
     jurisdiction, then and only then will he be entitled to a jurisdictional hearing at
     which he must prove jurisdiction by preponderant evidence. Bledsoe, 659 F.3d
     at 1102.
¶8        The parties do not dispute the administrative judge’s finding that the
     appellant satisfied the first two jurisdictional elements. ID at 9-10; PFR File,
     Tab 3; see Bledsoe, 659 F.3d at 1104. Thus, the issue before the Board on review
     is whether the appellant made nonfrivolous allegations, which, if proven, could
     establish that the agency denied his request for restoration and that the denial of
     restoration was arbitrary and capricious. See Bledsoe, 659 F.3d at 1102, 1104.
     The Board has ruled that a job offer may be tantamount to a denial of restoration
     if the offered duties are outside the employee’s medical restrictions. See Foley v.
     U.S. Postal Service, 90 M.S.P.R. 206, ¶ 6 (2001). Here, the administrative judge
     found that the arguments made by the appellant’s representative were not
     evidence, and that the appellant “submitted no medical progress notes, no
     clarification of the limitations by Dr. Mittleman, and no declaration from the
     appellant describing how his limitations should be interpreted, or supporting his
     contention that the agency’s limited duty job offer was unreasonable.” ID at 11
     (citing Frye v. U.S. Postal Service, 102 M.S.P.R. 695, ¶ 11 (2006)); see PFR File,
     Tab 1.
¶9        On review, the appellant reiterates the argument he made on appeal that the
     agency’s June 25, 2013 modified job assignment offer was unreasonable because
                                                                                             6

      it exceeded the scope of his medical limitations. 4 IAF, Tab 5 at 1-2; PFR File,
      Tab 1 at 2-3. The appellant also argues that the administrative judge erroneously
      found that he could drive intermittently for 8 hours a day based on
      Dr. Mittleman’s June 20, 2013 CA-17 Duty Status Report. PFR File, Tab 1 at 2.
      The appellant states that “at no point” in his June 20, 2013 assessment did
      Dr. Mittleman ever indicate or consider that the appellant could drive for 8 hours.
      Id.      The appellant also disputes the administrative judge’s finding that
      Dr. Mittleman, in evaluating the appellant’s limitations, “was aware of the
      physical movements required to drive including movements of the neck.” Id.
¶10         To make a nonfrivolous allegation of jurisdiction based on the allegation
      that the agency’s job offer was so unreasonable that it amounted to a denial of
      restoration, the appellant is required to “present specific, independent evidence
      corroborating his allegations.”      Foley, 90 M.S.P.R. 206, ¶ 6.          Despite the
      appellant’s arguments to the contrary, none of the duties or physical requirements
      identified in the agency’s June 25, 2013 modified job assignment offer exceed the
      medical restrictions identified by Dr. Mittleman in his June 20, 2013 CA-17 Duty
      Status Report. See PFR File, Tab 1; IAF, Tab 1 at 7-8. Although the CA-17 form
      included a box for specifying driving limitations, Dr. Mittleman left that box
      blank.     IAF, Tab 1 at 8.      Moreover, as stated previously, the appellant’s
      November 2012 Work Capacity Evaluation indicated that he was capable of
      performing his usual job without any limitations. 5        IAF, Tab 6 at 16, 28-29,
      32-33. On review, the appellant has failed to present any specific independent
      evidence corroborating his allegation that the agency’s June 25, 2013 modified
      4
        Because OWCP has not made a determination on the medical suitability of the
      agency’s June 25, 2013 job offer, the Board is free to consider the reasonableness of the
      agency’s job offer to determine if it amounted to an effective denial of restoration. See
      Ballesteros v. U.S. Postal Service, 88 M.S.P.R. 428, ¶ 9 (2001).
      5
        The agency also submitted a September 3, 2013 sworn declaration by the agency’s
      Manager of Health and Resource Management, stating that OWCP had not compensated
      the appellant since June 29, 2012, for claims related to his restoration appeal. IAF,
      Tab 12 at 8-9.
                                                                                              7

      assignment job offer exceeded his medical limitations or to identify any such
      evidence in the record. 6 See Foley, 90 M.S.P.R. 206, ¶ 6.
¶11         We therefore agree with the administrative judge’s finding that the
      appellant failed to make a nonfrivolous allegation that the agency’s June 25, 2013
      modified assignment limited-duty offer was so unreasonable as to constitute a
      denial of restoration. ID at 10-11. Without sufficient allegations that the agency
      denied the appellant’s request for restoration, we need not consider whether the
      appellant made a nonfrivolous allegation that the agency acted arbitrarily and
      capriciously in denying the restoration request. See Bledsoe, 659 F.3d at 1104;
      see also Latham, 117 M.S.P.R. 400, ¶ 10. We have considered the remainder of
      the appellant’s arguments on review, asserting that the administrative judge
      abused her discretion and challenging the factual and legal bases for her decision
      on appeal, and we find them to be without merit. 7 See PFR File, Tab 1 at 1-3.




      6
        In September 2013, OWCP informed the appellant that it had assigned him to a referee
      physician, who would resolve the conflict between the opinions of Dr. Mittleman and a
      different doctor regarding whether the appellant currently had a work-related condition
      and the ability to work a full-duty job. IAF, Tab 14 at 5. OWCP stated that it would
      issue a decision on the appellant’s entitlement to compensation after it received the
      referee’s report; however, neither party has submitted the final OWCP decision on the
      compensation issue. Id.; see PFR File, Tab 1 at 2, Tab 3 at 8. Although the appellant
      argues that it is relevant that OWCP referred him to a referee physician, this evidence is
      not new because it is already part of the record. See Meier v. Department of the
      Interior, 3 M.S.P.R. 247, 256 (1980). Moreover, the appellant does not explain why the
      mere fact that OWCP referred him to a referee physician is of sufficient weight to
      warrant an outcome different from that of the initial decision dismissing his restoration
      appeal for lack of jurisdiction. See Russo v. Veterans Administration, 3 M.S.P.R. 345,
      349 (1980).
      7
        For example, the appellant makes a cursory argument that the administrative judge
      erroneously considered the Latham case in her initial decision; however, the basis for
      his argument is unclear and we discern no error on review. See PFR File, Tab 1 at 1, 3.
                                                                                  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 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 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 court. The Merit Systems
                                                                           9

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.
