                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     THADDEUS A. KNIGHT,                             DOCKET NUMBER
                  Appellant,                         AT-0353-15-0107-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: September 21, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Thaddeus A. Knight, Coral Springs, Florida, pro se.

           Jeannette Wise and Marisa C. Ridi, Washington, D.C., 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 as moot his appeal of the agency’s failure to restore him to duty.
     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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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, 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).

                                      BACKGROUND
¶2        The appellant appealed the agency’s alleged failure to restore him to duty
     following full recovery from a compensable injury more than 1 year after his
     eligibility for compensation began. Initial Appeal File (IAF), Tab 1 at 8, Tab 4
     at 56-57. He had received from the Office of Workers’ Compensation Programs
     (OWCP) benefits for an injury he incurred as a Special Agent with the Federal
     Bureau of Investigation.     IAF, Tab 1 at 1, Tab 4 at 56-58.    After the OWCP
     terminated his compensation effective May 28, 2014, he sought restoration,
     asserting he was able to perform all the duties of his former position. IAF, Tab 4
     at 50-51, 56-61. The record shows that the agency ordered him to undergo a
     fitness-for-duty examination, which he resisted.      Id. at 15-16, 18-25, 27-29,
     31-34, 36-42, 44-51. After he filed this appeal, the OWCP’s Branch of Hearings
     and Review vacated its decision and remanded the case to the Jacksonville,
     Florida District Office for further action.         IAF, Tab 15 at 8-17.       The
     administrative judge found that the OWCP’s new decision, issued on
     December 17, 2014, rendered that agency’s prior decision a nullity. IAF, Tab 18,
                                                                                        3

     Initial Decision (ID) at 2. The administrative judge dismissed the appeal as moot
     because he found that a “live” case or controversy no longer existed. ID at 2-3.

                                         ANALYSIS
¶3         On review, the appellant explains that his workers’ compensation benefits
     have not yet resumed, despite the January 22, 2015 OWCP decision restoring
     those benefits.    Petition for Review (PFR) File, Tab 1 at 3; see IAF, Tab 15
     at 19-23.     Thus, he argues, he still meets the definition of a fully-recovered
     employee entitled to restoration rights under 5 C.F.R. § 353.301(b). PFR File,
     Tab 1 at 3.
¶4         We disagree.      Even if the OWCP has not yet resumed the ministerial
     function of processing the appellant’s benefits payments, that agency clearly set
     aside its finding that he had fully recovered from his injuries.       IAF, Tab 15
     at 8-17. It also acknowledged that he is entitled to benefits retroactive to June 1,
     2014, the date that his benefits previously ended. Id. at 9, 17, 19-20; see IAF,
     Tab 4 at 58-61. The OWCP’s actions thus returned him to his status prior to the
     May 28, 2014 determination.         Specifically, the December 17, 2014 action
     extinguished his basis for restoration and thus his Board appeal rights.        See
     Balfour v. U.S. Postal Service, 24 M.S.P.R. 340, 341-42 (1984); see also
     Welber v. U.S. Postal Service, 69 M.S.P.R. 195, 201-02 (1995) (finding that an
     employee’s reemployment rights terminated when his compensable injury
     recurred and his workers’ compensation were reinstated). Accordingly, we find
     that there is no longer a live controversy for the Board to adjudicate.         See
     Occhipinti v. Department of Justice, 61 M.S.P.R. 504, 507 (1994) (holding that
     there must be a live case or controversy when a case is decided, not merely when
     the complaint is filed) (citing Spectronics Corp. v. H.B. Fuller Co., Inc., 940 F.2d
     631, 635 (Fed. Cir. 1991)). Accordingly, we find that the appeal is moot. Id.
     at 507.
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¶5          The appellant argues that he has not received any of the relief that he might
     have received had the matter been adjudicated. PFR File, Tab 1 at 4. He alleges
     that his affirmative defenses—race, age, and disability discrimination—were not
     adjudicated and that he would have received attorney’s fees had he prevailed. Id.
     He argues that he also did not receive such benefits as restored annual leave, sick
     leave, and contributions to his Thrift Savings Plan account, which would have
     been awarded had the Board found that he was entitled to restoration and back
     pay.    Id. at 5.     He further argues that he suffered unspecified “additional
     compensatory harm” because of the delay in restoration. Id.
¶6          Although a claim of disability discrimination may prove that a denial of
     restoration rights was arbitrary and capricious, see Davis v. U.S. Postal
     Service, 119 M.S.P.R. 22, ¶ 11 (2012), the agency did not deny the appellant’s
     restoration rights.     Instead, the OWCP vacated its finding that he had fully
     recovered from his compensable injuries, an act that extinguished his restoration
     rights under 5 C.F.R. § 353.301(b). IAF, Tab 15 at 17; see Balfour, 24 M.S.P.R.
     at 342. The OWCP’s reconsideration of the appellant’s status occurred at his own
     request. IAF, Tab 15 at 8.
¶7          Similarly, the appellant’s argument that he has not received the relief that
     he might have received had the matter been adjudicated also fails because the
     OWCP has not deemed him to be a fully-recovered employee. His reliance upon
     Fernandez v. Department of Justice, 105 M.S.P.R. 443 (2007), is misplaced
     because the circumstances here are different than in that case. In Fernandez, the
     administrative judge dismissed the appeal as moot after the agency rescinded the
     underlying removal action. Id., ¶ 3. The Board vacated the initial decision and
     remanded the appeal to the regional office because the agency had failed to pay
     the appellant all of the back pay and interest to which he was entitled and failed
     to restore his health benefits retroactively.     Id., ¶¶ 6-18.   These steps were
     necessary to return the appellant to his status prior to the removal action. Here,
     no such steps are required on the agency’s part to return the appellant to his status
                                                                                         5

     prior to the May 28, 2014 OWCP decision. In any event, the appellant has not
     cited any authority refuting the holding that he must have a live controversy to
     proceed before the Board.
¶8           The appellant also argues that the agency cannot require him to undergo a
     fitness-for-duty examination because the OWCP’s determination that an
     individual is fully recovered is “final and conclusive for all purposes and with
     respect to all questions of law and fact” and thus binding on the Board. PFR File,
     Tab 1     at 7-9;   see   5 U.S.C.   § 8128(b)(1);   As’Salaam     v.   U.S.   Postal
     Service, 85 M.S.P.R. 76, ¶ 15 (2000). He additionally argues that, in requiring
     him to take a fitness-for-duty examination, the agency failed to grant him a
     reasonable accommodation under the Rehabilitation Act. PFR File, Tab 1 at 5-6;
     see Davis, 119 M.S.P.R. 22, ¶ 11. Because the OWCP’s action setting aside its
     earlier finding ended any live controversy here, these issues are no longer before
     the Board. In any event, a person who has fully recovered from a compensable
     injury may not meet all the physical requirements of the position in which he
     served, or an equivalent position, for reasons that are unrelated to the injury. See
     Simonton v. U.S. Postal Service, 85 M.S.P.R. 189, ¶ 13 n.9 (2000); see also
     Tisdale v. Department of the Treasury, 44 M.S.P.R. 390, 395 (1990) (finding that
     the agency did not violate an employee’s restoration rights in delaying restoration
     to duty following his recovery from compensable injury, as its delay was due to
     completion of necessary investigations involving medical, background, and drug
     screening determinations).
¶9           Finally, the appellant argues that the administrative judge dismissed his
     appeal while knowing that his attorney was unable, because of a “disability,” to
     brief the mootness issue after the Board received the OWCP’s letter and opinion
     setting aside its earlier finding that he was fully recovered. 2 PFR File, Tab 1 at 7;

     2
       During the March 19, 2015 status conference, the administrative judge ordered the
     appellant to show cause as to why his appeal should not be dismissed as moot. IAF,
     Tab 17 at 5.
                                                                                         6

      see IAF, Tab 15 at 8-17. The appellant also asserts that the administrative judge
      failed to notify him that his attorney did not respond to the order.      PFR File,
      Tab 1 at 7.
¶10         The appellant’s attorney was present at the March 19, 2015 status
      conference and received the conference summary.         IAF, Tab 17 at 3, 7.     She
      did not request a deadline extension. The deadline for responding to the order
      was April 20, 2015, which was before the appellant’s representative’s period of
      disability began in late May. Id. at 5; see PFR File, Tab 1 at 7. In any event, the
      adequacy of an appellant’s representation generally is not a matter for Board
      determination. 3 Also, an appellant is responsible for the errors of his chosen
      representative. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981).
      The right of appeal is personal to the appellant, and the responsibility for the
      prosecution of his appeal remains with him whether or not he is represented.
      Driggs v. Federal Aviation Administration, 15 M.S.P.R. 597, 599 (1983). Here,
      the appellant knew the deadline for responding to the order because he was
      present at the status conference. IAF, Tab 17 at 3. For all of these reasons, we
      find that his arguments are unavailing. 4

                      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:



      3
        Cf. Dunbar v. Department of the Navy, 43 M.S.P.R. 640, 643-45 (1990) (determining
      that an appellant is not bound by his attorney’s actions when he has proven that his
      diligent efforts to prosecute an appeal were thwarted, without his knowledge, by his
      attorney’s deceptions and negligence).
      4
       The appellant additionally alleges that the agency “engaged in unethical actions and
      gamesmanship to deny him due process.” PFR File, Tab 1 at 4. He did not elaborate
      upon this allegation.
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                          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 appeal to
the Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono        for    information   regarding   pro     bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.                                                                          The
                                                                                  8

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.
