N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ DANNICE E. CLARK, Petitioner

v.

MERIT SYSTEMS PROTEC TION BOARD, Respondent

______________________

2016

- 2648

______________________ Petition for review of the Merit Systems Protection Board in No. AT

- 0353

- 16

- 0120 -I- 1.

______________________

Decided: February 9 , 2017

______________________

D ANNICE E. C LARK , McDonough, GA, pro se.

K ATRINA L EDERER , Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. Also represented by B RYAN G. P OLISUK

.

______________________

Before R EYNA , W ALLACH , and C HEN , Circuit Judges.

P ER C URIAM

.CLARK v. MSPB 2

Petitioner Dannice E. Clark appeals the final decision of the Merit Systems Protection Board (“MSPB”) dismis sing her appeal for lack of jurisdiction. See Clark v. U.S. Postal Serv. , 123 M.S.P.R. 466, 474 (2016). We affirm.

B ACKGROUND

Ms. Clark is an employee of the U.S. Postal Service (“USPS”). Id. at 469. She alleged that the USPS refused her request to return to duty from April−August 2015 following partial rehabilitation from a work

- related injury and

, thus

, violated her restoration of duty r ights. See generally Clark v. U.S. Postal Serv.

, No. AT

- 0353

- 16

- 0120 -I- 1, 2015 WL 9282709 ( M.S.P.B. Dec. 17, 2015)

. A n Administrative Judge (“AJ”) issued an order acknowled ging Ms. Clark’s petition and directing the parties to follow the procedures set f orth

. Re s p’t’s App. 25−4 0 . The Order included, inter alia, general information on deadlines for discovery filings. Id. at 27. T he AJ also issued a separate order directing both parties to file evidence to prove the MSPB’s jurisdiction over the resto ration claim within fifteen calendar days. Id. at 50; see id. at 42−50.
Neither party responded to the Order on jurisdiction, and the AJ dismissed the case for lack of jurisdiction, finding that Ms. Clark failed to plead non

- frivolous all egations in her c omplaint

. Id . at 14

. The MSPB affirmed the AJ’s findings. Clark , 123 M.S.P.R. at 47 1 −74. Ms. Clark appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012).

D ISCUSSION

I. Standard of Review

We must affirm final decision s of the MSPB unless they are “ not in accordance with law” or “unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (1), (3) (2012). Substantial evidence “ means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v. NLRB

, 305 U.S. 197,CLARK v. MSPB 3

229 (1938) (citations omitted)

. We review determinations of the MSPB ’s jurisdiction de novo as questions of law and underlying factual findings for substantial evidence. Parrott v. Merit Sys. Prot. Bd. , 519 F.3d 1328, 13 34 (Fed. Cir. 2008).

II. The MSPB Properly Held t hat It Lacked Jurisdiction
Employees who are partially recovered from a co mpensable injury do not have an unconditional right to restoration of their agency positions. Bledsoe v. Merit Sys. Prot. Bd. , 659 F.3d 1097, 1103 (Fed. Cir. 2011). Rather, they have “a right to have the agency make every effort to restore them in the local commuting area and according to the circumstances in each case.” Id. (internal quotation marks and citation omitted)

. “[A]n appellant who init iates an appeal [with respect to restoration duties] must make nonfrivolous allegations

. . . with regard to the substantive jurisdictional elements applicable

. . . .” 5 C.F.R. § 1201.57(b) (2015) ; see id. § 1201.57(a)(4)

. Nonfrivolous allegations are defined as those which are “more than conclusory,” “plausible on [their] face,” and “material to the legal issues in the appeal.” Id. § 1201.4(s)(1)−(3). The applicable substantive jurisdi ctional elements are
( 1) absence due to a compens able injury ; ( 2) sufficient recovery from the injury to return to duty on a part time basis or in a less physically demanding position ; ( 3) agency deni al of a request for restoration ; and ( 4) denial of restoration [was] rendered arbitrary and capricious by agency fai lure to perform its obligations

. . . . Bledsoe , 659 F.3d at 1104. We have stressed that

, “[b] ecause partially recovered employees do not have an unconditional right to restoration, they do not have the right to appeal every denial of restoration.” Id. at 1103. Only when the substantive jurisdictional elements are nonfrivolously alleged will a right to appeal be found.CLARK v. MSPB 4

The MSPB found that Ms. Clark failed to plead no nfrivolous allegations with respect to the fourth required elem ent―showing that the USPS’s denial was arbitrary and capricious. Clark , 123 M.S.P.R. at 472. In so finding, the MSPB clarified that

, to make a non

- frivolous alleg ation, a petitioner must present material that is more than “vague, conclusory, or unsupport ed allegation, such as one that essentially repeats the legal standard.” Id. at 471. The MSPB found that Ms. Clark “failed to assert any facts in support of [ her ] allegation [s],” including identification of specific provisions in the collective bargainin g agre ement (“CBA”) that were allegedly violated, and that she “merely presented pro forma allegations that the [USPS]’s denial was arbitrary and capricious.” Id. at 472.
On appeal, Ms. Clark presents four statements from her C omplaint that she claims are non

- frivolous alleg ations that the USPS’s actions were arbitrary and capr icious : (1) she worked for five hours after she had been approved for limited return to work and was instructed to return home because the USPS could not accommodate her disability ; (2) the USPS refused to offer her reason able accommodation of her disability ; (3) the refusal viola ted provisions of her CBA ; and (4) the union noted that she had actually worked the full five hours on April 13, 2015 prior to being sent home. Pet’r’s Br. 7−8

. T he se four statements , however, do not present any specific facts or plausible assertions that would prove the USPS acted arbitrarily or capriciously towards Ms. Clark. As we have held, we will not “foist jurisdiction upon the [MSPB] over appeals brought by partially recovered petitioners who do not even allege that they did not r eceive the requisite ‘effort to restore,’” for “[t]he [MSPB] would then have jurisdiction to decide the merits of

a . . . claim that does not actually exist.” Bledsoe , 65 9 F.3d at 1104. Ms . Clark does not allege that the work she performed on April 13, 2015 was part of a restoration of duties that had been sanctioned by the USPS or thatCLARK v. MSPB 5

there was an available position that she was denied. She has offered no plausible exp lanation for the refusal to accommodate her restoration request

, other than her supervisor’s April 13, 2015 state ment that the USPS did not at that time “have adequat e work within her limit ations. ” Pet’r’s Br. 8 (capitalization omitted)

. This stat ement, without more, does not show arbitrary or capricious behavior. Although Ms. Clark now identifies specific articles of the CBA that she claims were violated, id. , this level of specificity was not all eged in the C omplaint, see Clark , 123 M.S.P.R. at 4 72 (acknowledging that Ms. Clark ’s C omplaint “did not identify any restoration obl igation contained [in the CBA] that the [USPS] violated or explain how it did so”) ; see Clark v. Merit Sys. Prot. Bd.

, Docket No. 11 -2, at 92 (Fed. Cir. Oct. 27, 2016). We w ill not review arguments presented for the first time on appeal. See Singleton v. Wulff , 428 U.S. 106, 120 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.”).

III. The MSPB Prop erly Upheld the AJ’s Determinations Related to Procedural Deadlines
Ms. Clark makes two additional arguments related to the MSPB’s review of the AJ’s decisions concerning filing deadlines and time accorded for discovery, i.e., internal administrative deadl ines. We review MSPB determin ations of AJ orders concerning docket management for substantial evidence under 5 U.S.C. § 7703(c)

. See Azarkhish v. Office of Pers. Mgmt. , 915 F.2d 675, 677 (Fed. Cir. 1990) ( framing the issue for review as “[w]hether there is substantial evidence to support the AJ’s finding that petitioner was not prevented by circu mstances beyond her control from timely requesting reco nsideration of [an agency]’s dismissal of her application”).
First, Ms. Clark avers that the MSPB i mproperly found that she had not established good cause for an untimely filing

. Pet’r’s Br. 4−6. Although jurisdictionalCLARK v. MSPB 6

responses were due w ithin fifteen days of the AJ’s O rder, Ms. Clark alleged that a host of mitigating factors su pported her request f or additional time to file a response. Id. at 4− 5 (listing sixteen mitigating factors). She argues that the MSPB erred in only considering certain mitiga ting factors in its decision

. Id. at 6; see Clark , 123 M.S.P.R. at 473.
The MSPB elaborated upon i ts decision to dismiss Ms. Clark’s argument with respect to improper dismissal on the factors related to the heavy workload of Ms. Clark’s attorney and “competing time demands,” including hol idays. Clark , 123 M.S.P.R. at 473; see id. ( stat ing that Ms. Cla rk’s counsel alleged “ a number of factors including a death in his family, the Thanksgiving holiday, and a busy workload” (emphasis added) )

. To reach the conclusion that Ms. Clark prefers, we would have to reweigh the evidence, which we may not do on appeal. See Jones v. Dep’t of Health & Human Servs. , 834 F.3d 1361, 1369 (Fed. Cir. 2016 ) ( “Under the substantial evidence stan dard of review, we do not reweigh evidence on appeal

. ” (internal quot ation marks, brackets, and citation omi tted))

. Ms. Clark also alleges that other factors show good cause for the untimely filing of jurisdictional responses. Specifical ly, Ms. Clark points to the fact that the AJ advised her counsel sometime after Decem ber 8

, 2015 to
contact opposing c ounsel to discuss a potential request for additional time to file and that Ms. Clark’s counsel did so on December 18

, 2015

, at which time opposing c ounsel stated he did not object to a grant of additional time to file. Pet ’r’s Br. 6.
Substantial evidence supports the MSPB’s findings as to other factors

. The AJ noted that he received a call from Ms. Clark’s counsel on December 8 , 2015 informing him that counsel planned to file a motion to file an untimely jurisdictional response. Resp’t’s App. 14 n.1 . However,CLARK v. MSPB 7

the AJ also noted that the record on jurisdiction closed on December 14, 2015. Id. As the MSPB explained

, Ms. Clark has not shown that the delay in filing was excus able under the circumstances leading up to the December
14 due date, a fact that Ms. Clark does not contest

. See generally Pet’r’s Br. Nor has she shown, in accordance with the terms of the Order

, that the “evidence or arg ument” she seeks to admit after t he record closed was “new and material evidence that was unavailable before the record closed.” Resp’t’s Ap p. 50; see Azarkhish , 915 F.2d
at 67 6 (upholding an AJ’s dismissal of a case on similar grounds ). As we have stated, “requirements of strict adhere nce to filing and timing rules are ubiquitous in our legal system.” James v. Office of Pers. Mgmt. , 372 F.3d 1365, 1369 (Fed. Cir. 2004). Moreover, the fact that Ms. Clark’s counsel informed the AJ that he would be seeking to file a motion for untimely filing does not change this result because counsel then failed to file the motion before the closure of the record on jurisdiction on December 14.

Second

, Ms. Clark argues that the MSPB incorrectly upheld the AJ’s determination that she was not prevented from exercising her right to discovery

. Pet’r’s Br. 1–4

. Instead, she claims that the AJ “prevented [her] from exercising her right to conduct discovery” when he set the time for filing jurisdictional submissions to end prior to the deadline for filing d iscovery. Id. at 2.

The MSPB found that

, although Ms. Clark did have a right to discovery, her “failure to avail herself of th[e] opportunity [to conduct discovery]” was not reversible error by the AJ. Clark , 123 M.S.P.R. at 474. The MSPB noted that, in agency proceedings, there is “an expectation that the parties will start and complete discovery with minimum [MSPB] intervention.” Id. (citations omitted).
Jurisdiction is a “threshold requirement” at the MSPB. Bledsoe , 659 F.3d at 1102 (citation omitted). “Because the [MSPB]’s jurisdiction is limited rather thanCLARK v. MSPB 8

plenary

. . . , it is crucial to identify at the outset the jurisdictional requirements of any given appeal.” Id. Recognizing these principles, we agree that the MSPB ’s affirmance of the AJ’s procedural deadline was supported by substantial evidence. Regardless of the deadline for initiating discovery, it was not only well within the AJ’s purview but was required of him to address jurisdiction before proceeding to disco very on the merits

. Addressing jurisdiction as a preliminary matter is also made clear in the Order laying out the deadlines for discovery. The Order states that only “[i]f [Ms. Clark’s] appeal is

. . . within the [MSPB]’ s jurisdiction ” shall she have th e right to a hearing or a filing of written submissions which may be supported by facts learned during discovery. Resp’t’s App. 25, see id. at 25−27

. C ONCLUSION We have considered Ms. Clark’s remaining arguments and find them unpersuasive. For these reasons, the F inal D ecision of the Merit Systems Protection Board is

AFFIRMED

C OSTS Each party shall bear its own costs.