                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BARRY S. ROGERS,                                DOCKET NUMBER
                  Appellant,                         SF-0353-13-0571-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: October 15, 2014
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Barry S. Rogers, Pittsburg, California, pro se.

           Kristen L. Walsh, Esquire, San Francisco, 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, which
     dismissed his restoration appeal for lack of Board 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 appellant was a City Carrier for the agency. Initial Appeal File (IAF),
     Tab 8 at 74. He incurred an on-the-job knee injury in May 2000. Id. at 68.
     Approximately 2 years later, he underwent knee surgery but continued to have
     residual complaints and physical limitations.     IAF, Tab 1 at 22, Tab 8 at 68.
     Therefore, he was placed on restricted duty. See IAF, Tab 8 at 68.
¶3        The appellant’s family doctor, Dr. James Eichel, submitted a letter, in
     July 2012, addressed to the agency.       IAF, Tab 1 at 18-20.       According to
     Dr. Eichel, the appellant could complete an 8-hour workday, but he continued to
     have restrictions from his knee injury. Id. at 20. Among other things, Dr. Eichel
     indicated that the appellant could walk no more than 10 minutes per day and lift
     no more than 5 pounds. Id.
¶4        The Department of Labor’s Office of Workers’ Compensation Programs
     (OWCP) sent the appellant for an independent medical evaluation with
     Dr. Sumner Seibert, an orthopedic surgeon, in December 2012.           IAF, Tab 8
     at 68-73; see 20 C.F.R. §§ 10.320, .321(b) (discussing OWCP’s authority to order
     medical examinations).     Dr. Seibert reviewed the available medical records,
     including updated diagnostic imaging, and conducted a physical exam.           IAF,
                                                                                        3

     Tab 8 at 69-71. Ultimately, he opined that the appellant was limited to working
     8 hours per day, with only 4 of those hours spent standing or walking. Id. at 72.
     Additionally, Dr. Seibert concluded that the appellant should not squat or kneel,
     and he should avoid lifting or carrying more than 25 pounds. Id.
¶5         In April 2013, the OWCP adopted the opinion of Dr. Seibert and referred
     the appellant for vocational rehabilitation. Id. at 55-56, 63-65. The assigned
     vocational rehabilitation counselor contacted the agency to determine whether the
     agency could accommodate the restrictions designated by Dr. Seibert.              Id.
     at 50-51. Subsequently, in May 2013, the agency directed the appellant to report
     for work, where he would be provided a job offer.           Id. at 28.    Days later,
     Dr. Eichel submitted another report, again listing limitations more restrictive than
     those designated by Dr. Seibert. IAF, Tab 1 at 24.
¶6         The agency offered the appellant a series of modified work assignments in
     June 2013. IAF, Tab 8 at 34-41. The last offer, dated June 19, 2013, was for the
     part-time position of Modified City Carrier, and specified that the appellant
     would case a route for 2 hours and deliver a route for 2 hours. Id. at 40-41. The
     offer noted that the appellant was restricted to no more than 4 hours of standing
     or walking, no squatting or kneeling, and no lifting of more than 25 pounds. Id.
     at 41. The appellant accepted the offer, under protest. 2 Id. at 40.
¶7         The appellant filed an appeal with the Board containing various allegations
     relating to his restoration. IAF, Tab 1 at 2-7. In an acknowledgment order, the
     administrative judge directed the appellant to meet his burden of proving that the
     Board had jurisdiction over his appeal.        IAF, Tab 2 at 2-4.        Both parties
     responded. IAF, Tabs 4, 6, 8. The administrative judge then issued a show cause
     order, directing the appellant to establish why his appeal should not be dismissed



     2
      Though not relevant for purposes of this appeal, the agency placed the appellant off
     work pending consultation with OWCP because he alleged that he could not perform the
     duties of this modified position. Id. at 42.
                                                                                             4

      for lack of Board jurisdiction. IAF, Tab 11. Again, both parties responded. IAF,
      Tabs 15, 16.
¶8          Without holding the requested hearing, the administrative judge dismissed
      the appeal for lack of jurisdiction. IAF, Tab 1 at 1, Tab 17, Initial Decision (ID).
      The appellant has filed a petition for review. Petition for Review (PFR) File,
      Tab 1. The agency has responded, PFR File, Tab 3, and the appellant has replied,
      PFR File, Tab 4.
      The appellant was not entitled to a hearing because he failed to present
      nonfrivolous allegations of Board jurisdiction.
¶9          In his petition for review, the appellant argues that the administrative judge
      erred by not granting his requested hearing. PFR File, Tab 1 at 5. We disagree.
¶10         The appellant bears the burden of establishing that the Board has
      jurisdiction over his appeal.        5 C.F.R. § 1201.56(a)(2)(i).         To establish
      jurisdiction over a restoration appeal under 5 C.F.R. § 353.304(c) 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 because of the agency’s failure to perform its obligations
      under 5 C.F.R. § 353.301(d). 3         See Bledsoe v. Merit Systems Protection

      3
        The administrative judge found that the appellant was a partially-recovered employee.
      ID at 6-7. A partially-recovered employee is one who has recovered sufficiently to
      return to modified duty, with the expectation that he will fully recover eventually.
      5 C.F.R. § 353.103. The appellant’s doctor, Dr. Eichel, indicated that the appellant
      reached maximum medical improvement in May 2003. IAF, Tab 8 at 32. Dr. Seibert
      expressed no opinion on this point. Id. at 57-62. In his petition for review, the
      appellant argues that he has permanent restrictions but does not explain the significance
      of this fact to the analysis of his claims. PFR File, Tab 4 at 1-2. We find that the
      appellant was either a partially-recovered or physically disqualified employee. See
      5 C.F.R. § 353.103 (a physically disqualified individual is one who cannot, or for
      medical reasons should not, perform the duties of his former position, and who is not
      expected to improve or recover). However, the distinction is not significant. Because
                                                                                             5

      Board, 659 F.3d 1097, 1104 (Fed. Cir. 2011). If an appellant makes nonfrivolous
      allegations of jurisdiction, he is entitled to a jurisdictional hearing. See id. at
      1102.
¶11           The administrative judge found that the appellant satisfied the first two
      prongs of the jurisdictional standard. ID at 7. However, he then found that the
      appellant failed to meet prongs three and four. ID at 7-11. The administrative
      judge concluded that the appellant failed to nonfrivolously allege that the agency
      denied him restoration or that such denial was arbitrary and capricious. ID at 11.
      We agree.
¶12           The appellant argues that the agency effectively denied his restoration
      because it did not offer him a position that met the restrictions of his treating
      physician. PFR File, Tab 1 at 5, Tab 4 at 4. It is true that a restoration offer that
      does not comport with an employee’s medical limitations may constitute a denial
      of restoration. See Foley v. U.S. Postal Service, 90 M.S.P.R. 206, ¶ 6 (2001).
      However, the agency offered to restore the appellant to a position that included
      the same restrictions as those provided by an independent medical examiner and
      adopted by OWCP. Compare IAF, Tab 8 at 40-41 (agency’s offer of modified
      assignment), with id. at 55-62 (OWCP letter to appellant adopting the physical
      limitations detailed by Dr. Seibert).     The administrative judge found that this
      offer was valid and consistent with the weight of medical evidence. ID at 8-9.
      As discussed further below, we agree.          Accordingly, the appellant failed to
      nonfrivolously allege that the agency denied his restoration or that such denial




      more than 1 year passed since the appellant’s injury, his rights are the same as those of
      a partially-recovered individual. See IAF, Tab 8 at 55 (reflecting an injury date of
      May 6, 2000); 5 C.F.R. § 353.301(c) (after 1 year, a physically disqualified employee’s
      rights are the same as those of fully- or partially-recovered employees, as applicable).
      Therefore, to the extent that the appellant is arguing that his rights were those of a
      physically disqualified individual, we find that his rights were properly analyzed by the
      administrative judge as those of a partially-recovered employee.
                                                                                              6

      was arbitrary and capricious. 4      Therefore, the administrative judge correctly
      determined that the appellant was not entitled to a hearing.
      The agency was not required to adopt the restrictions designated by the
      appellant’s primary care physician or to restore him to his previous job.
¶13         In his petition for review, the appellant again argues that the agency should
      have adopted the restrictions for modified duty designated by his treating
      physician and should have restored him to the job he held for 35 years. PFR File,
      Tab 1 at 5. We disagree.
¶14         The appellant argued below and again in his petition for review that the
      restrictions included in the modified position the agency offered are insufficient.
      See, e.g., IAF, Tab 1 at 3-4; PFR File, Tab 1 at 5. In determining whether a
      position is suitable for an employee’s particular medical condition, the Board is
      bound to any suitability determination of OWCP, if one exists, because OWCP
      possesses the appropriate expertise.         See New v. Department of Veterans
      Affairs, 142 F.3d 1259, 1264 (Fed. Cir. 1998); see also Paszko v. U.S. Postal
      Service, 119 M.S.P.R. 207, ¶ 12 (2013).         Here, the record does not contain a
      suitability determination from OWCP.          However, it is undisputed that OWCP
      adopted the opinion and restrictions of the independent medical examiner, Dr.


      4
        The appellant made allegations of discrimination, harassment, and retaliation below,
      see e.g., IAF, Tab 1 at 4-6, and he implicated disability discrimination in his petition
      for review, PFR File, Tab 1 at 5. The Board lacks jurisdiction over such claims in the
      absence of an otherwise appealable action. Latham v. U.S. Postal Service, 117
      M.S.P.R. 400, ¶ 58 (2012However, they are considered to the extent that they pertain to
      the jurisdictional issue. Id. The administrative judge found the allegations vague,
      conclusory, and insufficient to establish that the agency acted in an arbitrary and
      capricious manner regarding his restoration. ID at 11. We agree. Even with these
      claims, the appellant failed to present nonfrivolous allegations of Board jurisdiction
      entitling him to a hearing. Further, as to the appellant’s claim that he was discriminated
      against based on his disability, the agency attempted to meet with him in July 2013, to
      discuss reasonable accommodation of his medical condition. IAF, Tab 8 at 45, 48.
      The agency asserted, and the appellant does not dispute, that he declined to attend this
      meeting. Id. at 7, 44; see Brown v. Department of the Interior, 121 M.S.P.R. 205, ¶ 19
      (2014) (an employee is obligated to interact with an agency during the reasonable
      accommodation process).
                                                                                        7

      Seibert, not the more restrictive limitations ordered by the appellant’s treating
      clinician. IAF, Tab 8 at 55-62. The administrative judge similarly found Dr.
      Seibert’s opinion controlling. ID at 9-11. Among other things, the administrative
      judge reasoned that Dr. Seibert is a Board-certified orthopedic surgeon, whereas
      the appellant’s physician is a family practitioner. ID at 9. Although the appellant
      expresses disagreement with this conclusion, he has not provided a basis to
      reverse the administrative judge’s well-reasoned findings to credit the limitations
      set by the independent orthopedist over those of the appellant’s family doctor.
      See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980) (mere
      disagreement with the administrative judge’s findings does not warrant full
      review by the Board).
¶15        To the extent that the appellant also alleges that he should have been
      restored to the position he held for 35 years, this argument fails as well. Unlike a
      fully-recovered individual, a partially-recovered individual has no right to
      mandatory restoration to his former position or to an equivalent one. See Davis v.
      Department of Justice, 61 M.S.P.R. 92, 97, aff’d, 43 F.3d 1485 (Fed. Cir. 1994)
      (Table); compare 5 C.F.R. § 353.301(a)-(b) (rights of fully-recovered employees),
      with 5 C.F.R. § 353.301(d) (rights of partially-recovered employees). Here, the
      appellant has not alleged that he is fully recovered. See, e.g., PFR File, Tab 1
      at 5. Therefore, he was not entitled to his former position or any equivalent.
      The administrative judge did not exhibit any bias or prejudice against the
      appellant.
¶16        In his petition for review, the appellant alleges that the administrative judge
      was biased and prejudiced against him because he could not afford legal
      representation. PFR File, Tab 1 at 5, Tab 4 at 3. We disagree.
¶17        There is a presumption of honesty and integrity on the part of
      administrative judges that can only be overcome by a substantial showing of
      personal bias, and the Board will not infer bias based on an administrative judge’s
      rulings on issues. Williams v. U.S. Postal Service, 87 M.S.P.R. 313, ¶ 12 (2000).
                                                                                        8

      An administrative judge’s conduct during the course of a Board proceeding
      warrants a new adjudication only if the administrative judge’s comments or
      actions evidence a deep-seated favoritism or antagonism that would make fair
      judgment      impossible.             Simpkins    v.    Office     of    Personnel
      Management, 113 M.S.P.R. 411, ¶ 5 (2010).
¶18        Here, other than to allege that the administrative judge did not consider his
      evidence properly, the appellant failed to identify any specific comments or
      actions to support his bare assertion of bias and prejudice. See PFR File, Tab 1
      at 5, Tab 4 at 3. We find such a broad and general allegation is insufficient to
      rebut the presumption of the administrative judge’s honesty and integrity. See
      Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386, 389 (1980).

                      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.
                                                                                9

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
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.
