                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ANGEL DAVID MORALES,                            DOCKET NUMBER
                  Appellant,                         NY-0353-14-0030-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: March 31, 2015
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Angel David Morales, Guaynabo, Puerto Rico, pro se.

           Leslie L. Rowe, Esquire, New York, New York, 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
     found that the Board lacks jurisdiction over his claims that the agency failed to
     properly credit him for annual and sick leave, Social Security benefits, Thrift
     Savings Plan (TSP) contributions, Medicare, retirement, and life insurance after
     he returned to work following full recovery from a compensable injury after more

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     than 16 years. 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 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. We AFFIRM the initial
     decision as MODIFIED by this order to add further analysis supporting the
     administrative judge’s conclusion that the appellant did not make a nonfrivolous
     allegation that the agency violated his restoration rights. We have considered the
     appellant’s alternative assertion that the Board has jurisdiction over the agency’s
     decision not to award him retirement credit as an administrative action or order
     affecting his rights or interests under federal retirement law, but we conclude that
     the Board lacks jurisdiction over this claim in the absence of a final decision from
     the Office of Personnel Management (OPM).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The following facts are undisputed: (1) the appellant was injured while on
     duty as a Distribution Window Clerk on or around February 27, 1997; (2) at the
     time he was injured, he was a Grade 05, Step K level and had a salary of
     $35,409.00; (3) he received Office of Workers’ Compensation Programs (OWCP)
     payments until approximately September 16, 2013, when he was restored to a
     Distribution Window Clerk position at the Grade 6, Step O level with a salary of
                                                                                        3

     $54,777.00; (4) on September 21, 2013, he was awarded the Sales and Services
     Distribution Associate position that he had bid on, with the same annual base
     salary, grade, and step. See Initial Appeal File (IAF), Tab 19, Exhibits A-C. The
     appellant apparently filed two separate Board appeals in October 2013, but only
     one docket number was generated.        See IAF, Tab 1.     In the first appeal, the
     appellant alleged that the agency did not properly credit him for annual and sick
     leave, Social Security, TSP contributions, Medicare, retirement, and life
     insurance, for the duration of his time that he had received OWCP benefits, he
     checked the box indicating that the agency action that he was appealing was
     “[f]ailure to restore/reemploy/reinstate or improper restoration/reemployment/
     reinstatement,” and he relied on 5 U.S.C. § 8151(a) and 5 C.F.R. §§ 353.107,
     353.304(a) to support his assertions. See IAF, Tab 1 at 1-8. The second appeal
     contained the same factual narrative as the first appeal, but the appellant appeared
     to be appealing an OPM or agency retirement decision or action. See id. at 9-17.
¶3        The administrative judge issued an initial decision that dismissed the appeal
     for lack of jurisdiction. IAF, Tab 28, Initial Decision (ID). In pertinent part, she
     found that the appellant’s two appeals were “duplicative,” and she primarily
     analyzed the appellant’s assertions as a potential restoration appeal. See ID at 2
     n.2. The administrative judge discussed relevant precedent from the Board and
     the U.S. Court of Appeals for the Federal Circuit, and she concluded that the
     appellant did not make a nonfrivolous allegation of Board jurisdiction over his
     restoration appeal. See ID at 6-10. She briefly added that the appellant failed to
     make a nonfrivolous allegation that his retirement had been affected. ID at 9. In
     light of her jurisdictional ruling, the administrative judge stated that she need not
     consider the appellant’s allegation that the agency failed to notify him of his
     Board appeal rights pertaining to an alleged improper restoration, and, in any
     event, the appellant had failed to explain how his substantive rights were
     prejudiced. See ID at 10 n.5.
                                                                                     4

¶4        The appellant has filed a petition for review, the agency has filed a
     response, and the appellant has filed a reply. Petition for Review (PFR) File,
     Tabs 1, 3-4.      On review, the appellant argues generally that the Board has
     jurisdiction under two theories: (1) under its authority to review whether the
     agency satisfied its restoration obligations pursuant to 5 U.S.C. § 8151(a) and
     OPM’s implementing regulations; and (2) under its authority to review
     determinations affecting an individual’s rights or interests under federal
     retirement law.    PFR File, Tab 1.   He largely reiterates his arguments made
     below, and he also includes excerpts from the agency’s Employee and Labor
     Relations Manual (ELM), the OPM Civil Service Retirement System (CSRS) and
     Federal Employees’ Retirement System (FERS) Handbook, and statements from
     the Social Security Administration and Federal Retirement Thrift Investment
     Board. See id., Exhibits 1-4.
¶5        The Board’s jurisdiction is not plenary; it is limited to those matters over
     which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
     Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears
     the burden to show that the Board has jurisdiction over the appeal. 5 C.F.R.
     § 1201.56(a)(2)(i). For the following reasons, we agree that the appellant did not
     make a nonfrivolous allegation of improper restoration pursuant to 5 U.S.C.
     § 8151(a).   We further find that the appellant has not been subjected to an
     appealable administrative action or order affecting his interests under federal
     retirement law at this time; however, however, we notify him that he may raise
     these claims under federal retirement law to OPM for consideration.

     The appellant did not make a nonfrivolous allegation that the agency violated his
     restoration rights as described in 5 U.S.C. § 8151(a).
¶6        The Federal Employees’ Compensation Act (FECA) provides, among other
     things, that federal employees who suffer compensable injuries enjoy certain
     restoration rights. Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 9 (2012);
     see 5 U.S.C. § 8151. Congress has explicitly granted OPM the authority to issue
                                                                                             5

     regulations governing agencies’ obligations in this regard, and OPM has issued
     regulations requiring agencies to          make    certain efforts toward restoring
     compensably injured individuals to duty, depending on the timing and extent of
     their recovery. Latham, 117 M.S.P.R. 400, ¶ 9; see 5 U.S.C. § 8151; 5 C.F.R.
     § 353.301. 2
¶7         We have considered the appellant’s assertion that the agency, upon his
     reemployment, failed to properly credit him for sick and annual leave, Social
     Security benefits, Medicare, TSP contributions, retirement, and life insurance for
     the 16 years that he was receiving OWCP benefits pursuant to 5 U.S.C. § 8151(a)
     and 5 C.F.R. §§ 353.107, 353.304(a).            Pursuant to 5 U.S.C. § 8151(a), an
     individual who returns to duty following a compensable injury is entitled to
     service credit for the periods of leave without pay (LWOP) or separation during
     which he received OWCP compensation. In pertinent part, section 8151(a) states
     that the entire time during which the employee was receiving compensation under
     5 U.S.C. chapter 81 shall be credited to the employee for the purposes of
     within-grade step increases, retention purposes, and other rights and benefits
     based upon length of service. 3 The issue before us is whether “other rights and



     2
        For instance, an employee, like the appellant, who is separated because of a
     compensable injury and whose full recovery takes longer than 1 year from the date
     eligibility for compensation began, is entitled to priority consideration, agencywide, for
     restoration to the position he left or an equivalent one provided he applies for
     reappointment within 30 days of the cessation of compensation. 5 C.F.R. § 353.301(b);
     see 5 U.S.C. § 8151(b)(2). An injured employee in the executive branch, including the
     U.S. Postal Service, who believes that his reemployment priority rights have been
     violated, may appeal to the Board under the provisions of the Board’s regulations.
     Nevins v. U.S. Postal Service, 107 M.S.P.R. 595, ¶ 10 (2008); see 5 C.F.R.
     § 353.304(a). The appellant does not appear to have alleged below that the agency
     violated h is reemployment priority rights.
     3
       The regulation at 5 C.F.R. § 353.107, which generally tracks the language of section
     8151(a), see Gallo v. United States, 529 F.3d 1345, 1349 (Fed. Cir. 2008), states that,
     upon reemployment, an employee absent because of a compensable injury is generally
     entitled to be treated as though he had never left, and such an individual receives credit
     for the entire period of the absence for purposes of rights and benefits based upon
                                                                                           6

     benefits based upon length of service” in section 8151(a) includes sick and annual
     leave, Social Security benefits, Medicare, TSP contributions, retirement, and life
     insurance. We conclude that the answer is no.
¶8         Regarding the appellant’s assertion that he was entitled to retirement credit,
     we have considered precedent from the Board and the Federal Circuit that
     analyzes 5 U.S.C. § 8151(a). Based on our review of this precedent, we find that
     FERS retirement credit is not a right or benefit based upon the appellant’s length
     of service. 4 As noted by the administrative judge in the initial decision, ID at 9,
     our reviewing court, in True v. Office of Personnel Management, 926 F.2d 1151,
     1156 (Fed. Cir. 1991), concluded that neither section 8151(a) nor section 8332(f)
     permits non-actual service to be counted toward the 5-year actual reemployment
     requirement of 5 U.S.C. § 8344(a). In reaching its conclusion, the court analyzed
     the legislative history of section 8151(a). True, 926 F.2d at 1155-56. The court
     noted that: (1) the original proposed legislation provided that the time an
     individual spent receiving OWCP benefits also would be credited for the purpose
     of “annuity computation under the civil service retirement provisions”; (2) the
     Senate passed the legislation with an amendment that struck out “annuity
     computation under the civil service retirement provisions”; and (3) the House
     concurred in the Senate amendments, including the deletion of the provision
     regarding civil service retirement in section 8151(a). See id. at 1155. Based on
     this legislative history, the court concluded that Congress expressly considered
     and rejected the possibility of allowing FECA beneficiaries to count non-actual
     service toward fulfilling the retirement annuity credit requirements of section
     8344(a). Id. at 1156.



     seniority and length of service, including with in-grade increases, career tenure,
     completion of probation, leave rate accrual, and severance pay.
     4
      The record reflects that the appellant is covered by FERS. See, e.g., IAF, Tab 1 at 12,
     Tab 8 at 10 (the appellant’s Postal Service Form 50(PS-50)).
                                                                                       7

¶9         The appellant asserted below that True was inapplicable because it involved
      reemployed annuitants. See IAF, Tab 20 at 15-16. Although it is accurate that
      Mr. True was a reemployed annuitant, the court subsequently expanded the
      holding of True to cases that did not involve reemployed annuitants. In Gallo v.
      Department of Transportation, 689 F.3d 1294 (Fed. Cir. 2012), the court
      addressed a situation in which the employee, like the appellant, had fully
      recovered after more than 1 year and sought retirement credit for the time that she
      had received OWCP benefits.      The court rejected Ms. Gallo’s argument that,
      pursuant to 5 C.F.R. § 353.107, she was entitled to retirement credit that she
      would have received had she not been injured, explaining that it “unequivocally
      held in True that § 8151(a) does not encompass civil service retirement credit, a
      right based on actual employment time, not including time that an employee was
      receiving OWCP compensation.”         689 F.3d at 1300, 1302-03 (citing True,
      926 F.2d at 1156). Because decisions from the Federal Circuit are controlling
      authority for the Board, Fairall v. Veterans Administration, 33 M.S.P.R. 33, 39,
      aff’d, 844 F.2d 775 (Fed. Cir. 1987), we conclude that the appellant’s claims for
      retirement credit do not constitute a nonfrivolous allegation of Board jurisdiction
      over restoration matters pursuant to 5 U.S.C. § 8151(a).
¶10        We also have considered the appellant’s argument that Hatch v. Office of
      Personnel Management, 100 M.S.P.R. 204 (2005), is applicable to this matter.
      See PFR File, Tab 1 at 24-25.      We disagree.     Hatch addressed the issue of
      whether a partially-recovered employee who receives OWCP benefits while
      working part-time should be treated as a full-time employee for the purpose of
      computing retirement benefits. The Board’s decision to credit as full-time service
      for retirement purposes Mr. Hatch’s part-time work schedule is not relevant to
      our assessment of whether 5 U.S.C. § 8151(a) grants the Board jurisdiction to
      consider the appellant’s assertion that he should receive retirement credit for the
      entire time that he was out on LWOP and receiving OWCP benefits. See Palmer
      v. Merit Systems Protection Board, 550 F.3d 1380, 1385 (Fed. Cir. 2008)
                                                                                        8

      (explaining that the Board’s decision in Hatch had “no bearing” on whether the
      Board has jurisdiction over Mr. Palmer’s appeal of improper restoration following
      partial recovery from a compensable injury).
¶11        Regarding the appellant’s assertion on review that the agency should have
      credited him with sick and annual leave, both the Federal Circuit and the Board
      have concluded that sick and annual leave are not rights and benefits based on
      length of service under 5 U.S.C. § 8151(a). See Palmer, 550 F.3d at 1384-85;
      Burtch v. U.S. Postal Service, 47 M.S.P.R. 518, 521, aff’d, 949 F.2d 404 (Fed.
      Cir. 1991) (Table).
¶12        The parties agreed below that the appellant was entitled to a leave accrual
      rate based on his more than 16 years of federal employment, which would include
      the time for which he received OWCP benefits. See IAF, Tab 5 at 1-2. To the
      extent that the appellant argues on review that he is entitled to leave accrual in
      this regard, PFR File, Tab 1 at 8-9, he has not nonfrivolously alleged a basis for
      Board jurisdiction because the record reflects that he is properly accruing leave at
      a rate of 8 hours per pay period, see IAF, Tab 11 at 12 (the appellant’s September
      2013 PS-50); IAF, Tab 8 at 18 (ELM 512.311 stating that an employee should
      earn 8 hours of annual leave with 15 years or more of creditable service); see also
      Palmer, 550 F.3d at 1384-85 (“The rate at which leave accrues during each pay
      period is a benefit based on length of service.”); Burtch, 47 M.S.P.R. at 521
      (same).
¶13        The appellant has relied on various provisions of the ELM and excerpts
      from OPM’s Guide to Processing Personnel Actions to support his assertion that
      he should have been credited for leave, Social Security benefits, TSP
      contributions, Medicare, and life insurance. See PFR File, Tab 1; IAF, Tab 20.
      We have considered these references, but none persuade us that these benefits are
      based on length of service under 5 U.S.C. § 8151(a). For example, the appellant
      cited numerous ELM provisions regarding back pay awards, see PFR File, Tab 1
      at 13-14; IAF, Tab 20 at 11-12; however, the appellant did not receive a back pay
                                                                                      9

      award, and, thus, those provisions are inapplicable. Additionally, the appellant
      cited ELM 512.91 for the proposition that an employee who returns to pay and
      duty status following a suspension period or an involuntary separation is entitled
      to have annual leave recredited, see PFR File, Tab 1 at 12; IAF, Tab 20 at 9-10;
      however, the appellant was not suspended or involuntarily separated.
¶14        For these reasons, we conclude that the appellant has not nonfrivolously
      alleged that the Board has jurisdiction over the appeal as a claim of improper
      restoration pursuant to 5 U.S.C. § 8151(a).

      The Board lacks jurisdiction over the appellant’s assertion that the agency’s
      decision not to award him retirement credit is an administrative action or order
      affecting his rights and interests under federal retirement law.
¶15         We have considered the appellant’s alternative theory that the agency’s
      decision not to award him retirement credit for the time that he received OWCP
      benefits constitutes an administrative action or order affecting an individual’s
      rights or interests under federal retirement law.       PFR File, Tab 1 at 5;
      see 5 U.S.C. § 8461(e); 5 C.F.R. § 1201.3(a)(2). As support for his assertion, the
      appellant relied on section 582.4 of the ELM and 5 U.S.C. § 8332(f), both of
      which appear to allow retirement credit for time spent receiving OWCP benefits.
      IAF, Tab 20 at 6-9; PFR, Tab 1 at 6-8, 36 (section 582.4 of the ELM).
      Additionally, the appellant referred to OPM’s CSRS and FERS Handbook, which
      states that a federal employee who is not an annuitant who returns to federal
      service after a period of separation is deemed to have been in a LWOP status
      during that part of the separation period in which he received workers’
      compensation benefits, and the period of deemed LWOP is creditable for years of
      service counted towards eligibility and computation of benefits, and in the
      computation of the high-3 salary.       See OPM CSRS and FERS Handbook,
      § 102A3.1-1B, available at http://www.opm.gov/retirement-services/publications-
      forms/csrsfers-handbook/c102.pdf?nocache=1 (last visited Mar. 24, 2015).
                                                                                     10

¶16        Ordinarily, an appeal of an administrative action or order affecting an
      individual’s rights or interests under a federal retirement system arises from an
      OPM decision. Mandarino v. Department of Homeland Security, 118 M.S.P.R.
      510, ¶ 7 (2012).    Here, however, there is no OPM decision regarding the
      appellant’s assertion that he was entitled to retirement credit, and there is no
      evidence that OPM or Congress delegated to the agency the authority to
      determine his entitlement to retirement credit as a matter of retirement law. Cf.
      Adams v. Department of Defense, 688 F.3d 1330, 1335-36 (Fed. Cir. 2012) (the
      appeal of an adverse Voluntary Early Retirement Authority ruling by the agency
      is within the Board’s jurisdiction because Congress delegated such authority to
      the agency); Mandarino, 118 M.S.P.R. 510, ¶ 7 (explaining that when an
      employing agency makes a decision on a request for enhanced retirement
      coverage under a delegation of authority from OPM, it “stands in OPM’s place,”
      and the appeal is from the employing agency’s decision). 5
¶17        In the absence of an OPM decision, the Board lacks jurisdiction over the
      appellant’s request to receive retirement credit for the 16 years that he received
      OWCP benefits. However, we notify the appellant that he may request OPM to
      make a determination on his entitlement to retirement credit.

      Other issues
¶18        The Board generally will not consider evidence submitted for the first time
      with the petition for review absent a showin g that it was unavailable before the
      record was closed despite the party’s due diligence.     Avansino v. U.S. Postal
      Service, 3 M.S.P.R. 211, 214 (1980). The appellant has not made such a showing.
      Moreover, he has not persuaded us that his TSP documentation, which appears to
      be dated after the initial decision was issued, warrants an outcome different from


      5
        There does not appear to be any meaningful difference between the relevant FERS
      provision in Adams, 5 U.S.C. § 8461(e), and the CSRS provision in Mandarino,
      5 U.S.C. § 8347(d).
                                                                                       11

      that of the initial decision.     See Russo v. Veterans Administration, 3 M.S.P.R.
      345, 349 (1980).
¶19        In light of our disposition, we need not address the appellant’s assertion on
      review that the agency was obligated to provide him with Board appeal rights.
      See PFR File, Tab 1 at 20-21.

                         NOTICE TO THE APPELLANT REGARDING
                            YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request the United States Court of Appeals for the Federal Circuit to review this
      final decision.    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
                                                                            12

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.
