NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

DANNICE E. CLARK,

Petitioner

v.

MERIT SYSTEMS PROTECTION 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

______________________ 

 DANNICE E. CLARK, McDonough, GA, pro se.

 KATRINA LEDERER, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC, for 

respondent. Also represented by BRYAN G. POLISUK. 

______________________ 

Before REYNA, WALLACH, and CHEN, Circuit Judges.

PER CURIAM. 
2 CLARK v. MSPB

Petitioner Dannice E. Clark appeals the final decision 

of the Merit Systems Protection Board (“MSPB”) dismissing her appeal for lack of jurisdiction. See Clark v. U.S. 

Postal Serv., 123 M.S.P.R. 466, 474 (2016). We affirm.

BACKGROUND

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 rights. 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). An 

Administrative Judge (“AJ”) issued an order acknowledging Ms. Clark’s petition and directing the parties to follow 

the procedures set forth. Resp’t’s App. 25−40. The Order 

included, inter alia, general information on deadlines for 

discovery filings. Id. at 27. The AJ also issued a separate 

order directing both parties to file evidence to prove the 

MSPB’s jurisdiction over the restoration 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 allegations in her complaint. Id. at 14. The MSPB affirmed 

the AJ’s findings. Clark, 123 M.S.P.R. at 471−74. Ms. 

Clark appeals. We have jurisdiction pursuant to 28 

U.S.C. § 1295(a)(9) (2012).

DISCUSSION

I. Standard of Review

We must affirm final decisions 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, 1334 (Fed. 

Cir. 2008).

II. The MSPB Properly Held that It Lacked Jurisdiction 

Employees who are partially recovered from a compensable 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 initiates 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 jurisdictional elements are

(1) absence due to a compensable 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 denial of a request 

for restoration; and (4) denial of restoration [was] 

rendered arbitrary and capricious by agency failure 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. 
4 CLARK v. MSPB

The MSPB found that Ms. Clark failed to plead nonfrivolous allegations with respect to the fourth required 

element―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 allegation, a petitioner must present material that is more than 

“vague, conclusory, or unsupported 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 bargaining agreement (“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 Complaint that she claims are non-frivolous allegations that the USPS’s actions were arbitrary and capricious: (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 reasonable accommodation of her disability; (3) the refusal violated 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. 

These 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 receive 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, 659 

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 that 
CLARK v. MSPB 5

there was an available position that she was denied. She 

has offered no plausible explanation for the refusal to 

accommodate her restoration request, other than her 

supervisor’s April 13, 2015 statement that the USPS did 

not at that time “have adequate work within her limitations.” Pet’r’s Br. 8 (capitalization omitted). This statement, 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 alleged in the Complaint, see 

Clark, 123 M.S.P.R. at 472 (acknowledging that Ms. 

Clark’s Complaint “did not identify any restoration obligation 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 will 

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 Properly 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 deadlines. We review MSPB determinations 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 circumstances beyond her control from timely requesting reconsideration of [an agency]’s dismissal of her application”). 

First, Ms. Clark avers that the MSPB improperly 

found that she had not established good cause for an 

untimely filing. Pet’r’s Br. 4−6. Although jurisdictional 
6 CLARK v. MSPB

responses were due within fifteen days of the AJ’s Order, 

Ms. Clark alleged that a host of mitigating factors supported her request for additional time to file a response. 

Id. at 4−5 (listing sixteen mitigating factors). She argues

that the MSPB erred in only considering certain mitigating factors in its decision. Id. at 6; see Clark, 123 

M.S.P.R. at 473. 

The MSPB elaborated upon its 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 holidays. Clark, 123 M.S.P.R. at 473; see id. (stating that Ms. 

Clark’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 standard of review, we do not reweigh evidence on appeal.” 

(internal quotation marks, brackets, and citation omitted)). 

Ms. Clark also alleges that other factors show good 

cause for the untimely filing of jurisdictional responses. 

Specifically, Ms. Clark points to the fact that the AJ 

advised her counsel sometime after December 8, 2015 to 

contact opposing counsel 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 counsel 

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 excusable 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 argument” she seeks to admit after the record closed was “new 

and material evidence that was unavailable before the 

record closed.” Resp’t’s App. 50; see Azarkhish, 915 F.2d 

at 676 (upholding an AJ’s dismissal of a case on similar 

grounds). As we have stated, “requirements of strict 

adherence 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 discovery. 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 than 
8 CLARK v. MSPB

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 discovery 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 the 

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. 

CONCLUSION

We have considered Ms. Clark’s remaining arguments 

and find them unpersuasive. For these reasons, the Final 

Decision of the Merit Systems Protection Board is 

AFFIRMED

COSTS

Each party shall bear its own costs.