                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BONITA J. KING,                                 DOCKET NUMBER
                         Appellant,                  AT-0353-13-2147-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: August 20, 2014
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Kim G. Sims, Memphis, Tennessee, for the appellant.

           Lori L. Markle, Esquire, Philadelphia, Pennsylvania, 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 her 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Except as expressly modified by this Final Order
     as to the jurisdictional requirements for restoration appeals brought by employees
     who have partially recovered from a compensable injury, we AFFIRM the initial
     decision.

                                      BACKGROUND
¶2        As set forth in the initial decision, the following information is not in
     dispute: the appellant was a Mail Processing Clerk; due to an on-the-job injury
     that occurred in 2006, she was thereafter unable to perform the duties of that
     position; on September 22, 2012, the appellant accepted the agency’s offer of
     full-time limited duties; the appellant performed those duties from that time until
     she retired in January 2013. Initial Appeal File (IAF), Tab 11, Initial Decision
     (ID) at 2. In August 2013, the appellant filed a Board appeal. IAF, Tab 1. In
     response to the administrative judge’s Order requiring her to explain how the
     Board had jurisdiction over her appeal, the appellant stated that “she was never
     made whole or paid after being told not to report back to work until further notice
     on April 27, 2011, thru September 22, 2012.” IAF, Tabs 4, 7.
¶3        In response to the appellant’s jurisdictional submission, the agency
     provided documents showing that: (1) the agency provided the appellant a variety
                                                                                          3

     of limited duty assignments from 2006 to 2011; (2) on or about April 1, 2011, the
     agency offered the appellant another limited duty assignment, which the appellant
     rejected, asserting that the assignment violated her medical restrictions in that the
     work hours were at night; (3) on April 12, 2011, the agency’s Occupational
     Health Nurse Administrator wrote a letter to the appellant’s treating physician
     asking him to clarify why the appellant’s medical condition (carpal tunnel
     syndrome) necessitated a medical restriction of daytime work hours, but received
     no reply; (4) on April 27, 2011 the agency offered the appellant limited duty work
     during the hours of 9:30 p.m. to 6:00 a.m., which the appellant rejected as being
     out of her medical restrictions; (5) also on April 27, the agency issued the
     appellant a letter stating that, because she had refused the assignment, she should
     not report back for duty unless she accepted the assignment or was notified that a
     revised modified assignment was available; (6) the appellant subsequently raised
     the same issues as in the instant appeal in three other forums: with the Office of
     Workers’ Compensation Programs (OWCP), in an equal employment opportunity
     complaint, and in a grievance; (7) the OWCP determined that there was no
     medical reason that the appellant needed to work during daytime hours; (8) on
     May 29, 2012, the agency received a letter from the appellant’s physician that
     stated that the appellant needed to take medication between 6:00 p.m. and
     9:00 p.m.,    and   that   this   necessitated   daytime   work   hours;   and   (9) on
     September 12, 2012, the agency offered the appellant a limited duty assignment
     during daytime hours, which she accepted. IAF, Tab 10. The agency contended
     that the appellant was not asserting that the agency refused to restore her to duty,
     but was complaining about the details of her limited duty assignment, and cited
     precedent indicating that such complaints are not within the Board’s jurisdiction.
     Id. at 8-9.
¶4         In the initial decision, the administrative judge stated that, to establish
     jurisdiction over a restoration claim brought by a partially recovered employee
     such as the appellant, the appellant must allege facts that, if proven, would show
                                                                                        4

     that: (1) she was absent from her position due to a compensable injury; (2) she
     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 her; (3) the agency denied her request for restoration; and (4) the
     denial was arbitrary and capricious.      ID at 2-3.    The judge found that the
     appellant had established elements (1) and (2), but had not established elements
     (3) or (4). Regarding item (3), the judge found that the appellant made clear that
     her essential complaint was that the agency did not adequately compensate her
     following her restoration to full-time duty in September 2012, and that the
     Board’s jurisdiction extends only to denials of jurisdiction and does not extend to
     complaints as to the details or circumstances of a restoration. ID at 4. The judge
     additionally found that the appellant failed to allege any circumstances that would
     tend to show that the agency’s actions were arbitrary and capricious. ID at 4-5.

                                         ANALYSIS
¶5         In her petition for review, the appellant contends that the administrative
     judge erred in that he did not set out the jurisdictional requirements prior to
     issuing the initial decision.     Petition for Review (PFR) File, Tab 1 at 3.
     Unfortunately, this contention is true. It is well established that an administrative
     judge must provide an appellant with explicit information as to what is required
     to establish jurisdiction.   Yost v. Department of Health & Human Services,
     85 M.S.P.R. 273, ¶ 7 (2000) (citing Burgess v. Merit Systems Protection Board,
     758 F.2d 641, 643-44 (Fed. Cir. 1985)), aff’d, 4 F. App’x 900 (Fed. Cir. 2001).
     Nevertheless, a judge’s failure to properly inform an appellant of the Board’s
     jurisdictional requirements does not require remand where the appellant is put on
     notice by the agency’s pleadings as to what he must do to establish jurisdiction.
     Yost, 85 M.S.P.R. 273, ¶ 9; Johns v. Department of Veterans Affairs, 83 M.S.P.R.
     345, ¶ 6 (1999). Moreover, a judge’s error in dismissing an appeal for lack of
     jurisdiction without first issuing an adequate show-cause order is not prejudicial
                                                                                             5

     to the appellant’s rights when the initial decision sets out the jurisdictional
     elements and the Board fully considers the appellant’s jurisdictional arguments on
     review. Yost, 85 M.S.P.R. 273, ¶ 9. Both of these qualifications apply in this
     case, as the agency’s motion to dismiss set forth the jurisdictional elements for a
     partial recovery restoration appeal under 5 C.F.R. § 353.304(c), as did the initial
     decision.   See IAF, Tab 6; ID at 2-3. 2         We therefore consider whether the
     appellant has established the requisite jurisdictional elements on review.
¶6         The appellant has not established either of the jurisdictional elements in
     question on review. As the administrative judge observed, the gravamen of the
     appellant’s assertions is not that she was denied restoration but that she did not
     receive what she considered to be full compensation when she was restored to
     duty in 2012. Even if the agency’s April 2011 letter instructing the appellant not
     to report back for duty unless she accepted the offered duty hours or was notified
     that a revised modified assignment was available could be characterized as a
     denial of restoration, she has offered no evidence that such denial was arbitrary
     and capricious, as discussed below. 3
¶7         As detailed above, the only reason that the appellant did not receive a
     limited duty assignment in April 2011 was that she rejected the agency’s offer on
     the ground that her medical limitations precluded her from working night shift
     hours.   As the agency had no record of such a medical limitation, it sought
     evidence from her treating physician that such a medical limitation existed. No
     such evidence was provided until May 2012, after which a limited duty

     2
       The appellant points out that the initial decision misstated the burden of proof for
     establishing jurisdiction. PFR File, Tab 1 at 4. The initial decision stated that all that
     is required to establish jurisdiction is to make nonfrivolous allegations of the four
     jurisdictional elements, when in fact these elements must be proven by preponderant
     evidence. See Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012). This
     error did not harm the appellant, however, as it understated the jurisdictional
     requirements she was required to meet.
     3
       We note that an appeal of the agency’s actions in April 2011 would have been
     untimely filed by about 2 years.
                                                                                       6

     assignment was promptly offered. The appellant has submitted no evidence that
     the agency acted arbitrarily and capriciously in handling her request for
     restoration.
¶8         Finally, the appellant asserts that she has “new evidence” to support her
     claim, which consists of a step 3 grievance form dated November 14, and
     December 6, 2012.     PFR File, Tab 1 at 3, 7-8.      The appellant has made no
     showing that this document, which was executed in 2012, was previously
     unavailable despite her due diligence prior to the issuance of the initial decision
     on September 16, 2013.

                     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 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.
                                                                                7

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.
