N OTE : This disposition is nonprecedential. 

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

______________________ HORTENCIA R. LEIJA, Petitioner,

v.

DEPARTMENT OF VETERA NS AFFAIRS, Respondent.

______________________

2013

- 3048

______________________ Petition for review of the Merit Systems Protection Board in No s . DA0752110588 -I-1 , DA0353110513 -I- 1, and DA0752110537 -I- 1.

______________________

Decided: September 12, 2013

______________________

H ORTENCIA R. L EIJA , of San Antonio, Texas, pro se.

C ORINNE A. N IOSI , Trial Attorney, Commercial Litig ation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were S TUART F. D ELERY , Acting Assistant Atto rney General, J EANNE E. D AVIDSON , Director, and M ARTIN F. H OCKEY , Assistant Director.

______________________LEIJA v. DVA 2

Before N EWMAN , P ROST , and W ALLACH , Circuit Judges.

P ER C URIAM

. Hortencia Leija appeals the decision of the Merit S y stems Protection Board ( “Board”) affirming her removal from employment with the Department of Veterans Affairs ( “VA”) and dismissing her restoration appeal for lack of jurisdiction. W e affirm the Board’s decision that i t lacked jurisdiction over Ms. Leija’s restoration appeal

, but

we vacate the Board’s affirmance of her removal and remand for further proceedings consistent with our opi nion.

I
Hortencia Leija was employed as a Diagnostic Radi ological Technologist at the GS

- 9 level for the VA. In 2008, she injured her left shoulder, and the next year she hurt her right one . T he Office of Workers’ Compensation Programs ( “ OWCP ”) found her injuries to be work -related and compensable. After two periods of approved medical leave

, lasting approximately four months and six months, Ms. Leija returned to work fulltime in October 2009. Because of her shoulder injuries, her physician imposed certain medically

- necessary restrictions on her activities
at work

. Due to those limitat ions, the VA offered Ms. Leija

— and she accepted

— a series of restricted duty jobs in 2010 that were commensurate with her physical cap abilities. B oth Ms. Leija and her direct supervisor

, Mr. Long

, believed that she was performing t he duties of a Medical Support Assistant at the GS

- 4 level by August 2010

. In December 2010, the VA mailed Ms. Leija a formal offer of permanent re assignment as a Medical Support Assis tant with pay retained from the GS

- 9 level

. In its letter, the VA informed her that it could ask the OWCPL EIJA v. DVA 3

for a suitability determination of the offer if she refused

. It further explained that, i f the OWCP found the new position suitable and she continued to refuse the offer, her workers compensation benefits might be terminated and she might face “ administrative action.” Resp’t App. 63. The VA also directed Ms. Leija to complete an enclosed “Acceptance/Declination Statement” (“ADS”) form by December 28, 2010. Resp’t App. 62. That form provided two options: “voluntarily accept” the o ffered Medical Support Assistant position or “decline” it. Resp’t App. 64.
Ms. Leija did not return the ADS form to the VA

. However, according to both her and Mr. Long, she conti nued working in her “light duty assignment that was comprised of duties of the Medical Support Assistant position.” Resp’t App. 10.
Despite Ms. Leija’s failure to return t he ADS form, the VA “issued a Standard Form 52 ” to officially change her employment “from the Diagnostic Radiological Tec hnician position to the Medical Support Assis tant position,” while “includ[ing] retained pay.” Resp’t App. 10

- 11. 1 T he VA also referred its offer to the OWCP for a suitability determination

. On February 14, 2011, t he OWCP informed Ms. Leija that it believed the VA’s offer was suitable and instructed her that she had “30 days to accept the position or provide

1 The administrative judge found that the Standard Form 52 was issued on January 21, 2011. Resp’t App. 10. However, we can find no such form in the documents provided on appeal. A Standard Form 52 does appear in the record though. Resp’t App. 71. That document bears an April 2011 date and reflects a request to officially transfer Ms. Leija to the Medical Support Assistant position. Id.LEIJA v. DVA 4

a valid reason for not accepting it.” Resp’t App. 11

. Ms. Leija provided a timely response

, but the OWCP di d not find it “sufficient .” Id. On April 18, 2011, t he office informed Ms. Leija that her workers

- compensation ben efits woul d be terminated “ based on her refusa l of an offer of suitable work.” H.L., & Dep ’ t of Vet erans Affairs, S. Tex. Health Care Sys.

, 2012 WL 8595448 at *2 (E.C.A.B. 2012 )

. The VA was notified of th e OWCP’s decision to terminate her benefits

. Three days prior to the OWCP’s decision, on April 15, 2011, Ms. Leija ’s representative , Mr. Rogers, mailed the VA a letter indicating that she declined the VA’s Dece mber 2010 offer

. In his letter, Mr. Rogers explained that several attempts to discuss the offer with VA represent atives failed. Despite those unsuccessful attempts at negotiation, h e asserted that Ms. Leija was “back to work” and “willing to accept [a] suitable job as applicable to her current job description .” Resp’t App. 74. He further argued that Ms. Leija was capable of performing the job duties of a Radiological Technologist with accommod ations similar to what other technolo gists were re ceiving and that she would be able to return to “full capacity” in the future after physical therapy

. Resp’t App. 76. To that end, he asked that “ she be allowed to contin ue therapy while working in an accom modated position” and posited that “pay[ing] the difference in salary at a GS

- 4 level rather [than] hav[ing] Ms. Leija work in her job field is a waste of government spending .” Id. Mr. Rogers concluded his letter with a request that the VA “revisit the job offer and reoffer one that is compatible to her current job functions that will benefit the employee, patient [s] , and [the VA] Imaging Service.” Id.
In response to Mr. Rogers’s letter, the head of Ima ging Services “approv ed a request to Human Resources” on April 18, 2011, “ that [Ms. Lei ja] be terminated.” Resp’t App. 12. That request, however, was followed by a seri esL EIJA v. DVA 5

of job offers that the VA provided to Ms. Leija, several of which appear to have been accepted by her

. On April 19, 2011, the VA provided Ms. Leija a “R estrict ed Duty Job O ffer” as a “Medical Support Assistant .” Resp’t App. 78. The required duties of that position were detailed in the offer and were nearly identical to those identi fied in the position description included with the VA’s December 2010 offer to Ms. Leija fo r permanent employment as a Medical Support Assistant

. Compare Resp’t App. 78

- 79

, with Resp’t App. 67

- 68

. H and written notes on the copy of the restricted duty offer in the record reflect that Ms. Leija refused it and , as a result, was sent home

. Resp’t App. 80.

T hree days later

, on April 21, 2011 , the VA provided Ms. Leija a new “Restricted Duty Job Offer” as a “Medical Support Assistant” in the VA Imaging Service. Resp’t App. 93. Unlike the previous one

, Ms. Leija accept ed and signed this new offer

. Id. But s he annotated her a cceptance with the following: “I am told by Ms. Rubin that this is a temporary job offer.” Id. The restricted duty job offer included a brief description of the duties required for

a M edical S upport A ssistant that a ppear s to match the position description for the VA’s December 2010 offer. Compare Resp’t App. 93

, with Resp’t App. 67

- 68. There was one addition to the new offer’s description of the duties required by it though. The new offer stated : “No lifting, pushing or pulling more than five (5) pounds. There are plenty of radiology staff, please ask for help as needed .” Resp’t App. 93.

Then on May 6, 2011, the VA provided Ms. Leija with a “Transitional (Limited) Duty Job Offer for Work -Related Injuries/Illness” in the “Medical Support Assistant” pos ition. Resp’t App. 81. Like before, t he general des cription of the job duties required by the of fered position were in accord with those identified in the VA’s December 2010 offer. Compare Resp’t App. 81

, with Resp’t App. 67. Ms.LEIJA v. DVA 6

Leija appears to have accepted th e offer, which was countersigned by a VA official. Resp’t App. 81.
After Ms. Leija accepted that “ t ransition al ” job offer

, the VA provided her with yet another “ Restricted Duty Job Offer ” on May 17, 2011

. Resp’t App. 82

, 87

. Besides a change in the name of the offered position from “Medical Support Assistant” to “PSA,” the duties and responsibil ities of the offered position were nearly identical to those detailed in the VA’s December 2010 offer. Compare R esp’t App. 82

- 83

, with Resp’t App. 67

- 68

. One copy of th e offer in the record indicates by hand written note that Ms. Leija refused to accept it

. Resp’t App. 84. A second copy in the record though, reflects Ms. Leija’s signature and her supervisor’s countersignature. Resp’t App. 87. That second copy contains several handwritten not es (seemin gly made by Ms. Leija ), including one that appears to indicate that her acceptance of the offer was conditioned upon “proper trai ning.” Resp’t App. 87.
On May 19, 2011, the VA issued a “ Notice of Proposed Removal” to Ms. Leija. It charged her with “failure to accept directed reassignment.” Resp’t App. 89. The VA included the following details of her alleged misconduct.
By letter dated December, 21, 2010, you were gi ven a written notice of a reassignment to a Medical Support Assistant p osition as a GS

- 0679

- 04 Step 10 . The Department of Labor (DOL), Office of Workers’ Compensation Programs (OWCP), d etermined suitability of the job offer. On April 15, 2011, your written response fro m your repr e sent ative informed the Agency that you had d e clined the job offer.

Id.
Shortly after Ms. Leija received the “ Notice of Pr oposed Removal ,” her duty station was changed to her home address a nd her prior pending request for familyL EIJA v. DVA 7

medical leave

— to care for her elderly mother

— was a pproved. An oral response hearing to the “ Notice of Pr oposed Removal ” was held on June 9, 2011, and the next day, the VA placed Ms. Leija on administrative leave. M s. Leija w as still on leave when the VA issued a decision on July 11, 2011, terminating her from “federal employment effective July 22, 2011,” for “failure to accept a directed reassignment.” Resp’t App. 106. A “Request for P erso nnel A ction ” on Standard Form 52 reflects that Ms. Leija was removed from her position as a “MED SUP ASST (TYPING)” pursuant to Chapter 75 for “failure to accept directed assignment.” Resp’t App. 108

- 09.

II
Ms. Leija filed four appeals with the Board challen ging the VA’s action s

. She asserted that the VA improperly demoted her to a lower grade job

, wrongly terminated her from federal employment

, failed to properly restore her to duty as a Diagnostic Radiological Techni cian fo llowing her compensable shoulder injuries

, and constructively suspended her without cause by putting her on unrequested leave.
On October 7, 2011, the administrative judge for the Board dismissed her demotion appeal. The administr ative judge explained that the VA “assigned [her] to the GS

- 4 grade -l evel ” job after the OWCP “ determined the . . . position was a suitable job offer to accommodate her work

- related injury.” Resp’t App. 139. According to the administrative judge, “rather than a reduc tion– in

- grade action[,] the reassignment was taken to fulfill the [VA]’s restoration obligations,” so “all arguments an d relief available to [her] will be available under the restoration

based appeal.” Id.

On January 30, 2012, the administrative judge rejec ted Ms. Leija ’s other appeals. The administrative jud ge dismissed her constructive suspension appeal after co ncluding that the Board lacked jurisdiction over it

. Accord-LEIJA v. DVA 8

ing to the administrative judge , there was no jurisdiction because Ms. Leija “failed to show that she was constru ctively suspended” since sh e never withdrew her request for family medical leave. Resp’t App. 17

- 18.

The administrative judge also concluded that there was no Board jurisdict ion over Ms. Leija’s restoration appeal

. The administrative judge explained that the Board has jurisdiction only over non

- frivolous restoration claims and that she failed to present a “non

- frivolous allegation that she was denied restoration as an employee who has partially recovered from a compensable injury.” Resp’t App. 16. That w as apparent, in the administrative judge ’s view, because the “reassignment to the Medical Support Assistant position was reasonable”; the perm anent offer of reassignment “was found suitable by OWCP”; “retained pay was afforded [to Ms. Leija]”; and, based o n facts reflected in the record, Ms. Leija never informed the VA of a note from her doctor dated April 23, 2011, that released her to “full duty.” Id.
Regarding Ms. Leija’s appeal challenging her term ination, the administrative judge found that the Boar d had jurisdiction over it but that it failed on its merits

. The administrative judge described the VA’s burden in a “removal action based on a refusal to accept a directed

. . . reassignment” as “prov[ing] by a preponderance of the evidence that its reassignment decision was based upon legitimate management considerations.” Resp’t App. 13. The administrative judge concluded that the “Board has consistently held that discipline is warranted for refusing to accept a legitimate directed reassignment and th at removal is not an unreasonably harsh penalty for such a refusal.” Resp’t App. 14. He explained that Ms. Leija’s

r emoval was therefore permissible be cause she “contin ually rejected” a legitimate reassignment offer

, Resp’t App. 15 ; she “acknowledged that [she] could not . . . perform the duties of the Diagnostic Radio logical Technician position,” Resp’t App. 14; she never told the VA that “[herL EIJA v. DVA 9

doctor] cleared her for full duty” in April 2011, Resp’t App. 15; and “t he evidence show[ed] that the reassi g nment to the Medical Support Assistant position was taken for a legitimate reason

— [Ms. Leija] had permanent lifting restrictions which precluded her from performing the essential duties of her Diagnostic Radiol ogical Technician position,” Resp’t App. 14.
In addition, t he administrative judge reasoned that the legitimacy of the VA’s offer was confirmed by “ the fact that the OWCP found it

. . . suitable” and by the VA’s decision to maintain Ms. Leija’s level of pay in the rea ssigned position. Resp’t App. 15. The administrative judge noted that “pertinent OWCP regulation” obligates e mployees to return to suitable employment when offered or face discontinuance of workers

- compensation benefits. Id.
On March 3, 2012, Ms. Leija filed a petition for Board

rev iew of the administrative judge’s decision. S ubsequent
to that petition , the E mployees’ Compensation Appeals Board (“ECAB”) reversed the OWCP’s decision to term inat e Ms. Leija’s workers compensation benefits. H.L.

, 2012 WL 8595448 at *3. The ECAB summarized cert ain facts relevant to its decision as follows

. The [VA] offered [Ms. Leija] the modified position of medical support assistant with pay retention. At the time of the job offer, the record shows that she was performing the job. T he [VA] stated that a written job offer had been sent to [her] for an o fficial job assignment with a change to a lower grade with no change in pay. [She] refused to sign a formal acceptance of the job offer, but co n tinued to work in the position on which the job o f fer was based. The record reveals that she continued to work for the employing establis h ment in that p osition until July 11, 2011. On J u ly 11, 2011 the [VA] removed [her] from federal employmentLEIJA v. DVA 10

based on her failure to accept a d i rected assig nm ent.

Id. Based in part on those facts, the ECAB concluded that the “ OWCP did not meet its burden of proof to terminate [Ms. Leija]’ s compensation f or refusing suitable work. ” Id.

On October 22, 2012, Ms. Leija submitted the ECAB’s decision to the Board as “new importan t evidence.” Pet’r App. T ab 3.
Thereafter, on December 10, 2012, the Board denied Ms. Leija’s petition for review and adopt ed the admini strative judge’s decision as final. For Ms. Leija’s removal appeal, the Board agreed with the administrative judge that “the reassignment was taken for legitimate ma nagement reasons, i.e., [ she ] had permanent lifting r estrictions which precluded her from performing the essential duties of her Diagnostic Radiological Technician position.” Resp’t Ap p. 28. It was Ms. Leija’s burden, according to the Board, to rebut that legitimate reason for reassignment by showing that she informed the VA that she was released to full duty. Id. That was not a burden she met though because , in the Board’s view, the admini strative judge correctly found that Ms. Leija did not inform the VA prior to her termination that her doctor approved her medical release to full duty in April 2011

. Resp’t App. 26

- 28. The Board also summarily affirmed the admini strative judge’s d ecision that there was no jurisdiction over Ms. Leija’s restoration or constructive suspension appeals.
In addition, the Board briefly addressed why it r efused to consider several documents submitted by Ms. Leijia as new evidence, including those “from her OWCP appeal file.” Resp’t App. 28. First, it concluded that none

were “new” and that Ms. Leija “made no showing that the[] documents were unavailable before the record closed despite her due diligence.” Id. Second, the Board e xplained that “ the[] documents [were] also not material be cause they d[id] not show that the agency was aware ofL EIJA v. DVA 11

[Ms. Leija’s doctor’s] work release prior to remov ing her.” Id.

III
Ms. Leija filed a timely appeal with us of the final d ecision of the Board. The focu s of her appeal is somewhat imprecise

. S he does raise, however, several points that merit attention . First, Ms. Leija explains that she was offered some light duty positions after returning to work and that she accepted them. Pet’r Br. 1

. Secon d, she

a sserts that, as the ECAB found, the VA “confirmed that [she] was working in the offered [Medical Support Assi stant] position, but that she refused to sign the form a ccepting the job offer.” Pet’r Br. 3

. Third, she argues that the Board failed to properly consider the fact that she was released to full duty prior to termination. Pet’r Br. 2- 3. And last, Ms. Leija posits that the Board’s opinion was incorrect in light of the ECAB decision that she submitt ed as new evidence while her petition for Board review was pending

. Pet’r Br. 4.

IV

We have jurisdiction over Ms. Leija’s appeal under 28 U.S.C. § 1295(a)(9). The scope of our review is limited. W e must affirm the Board’s final decision unless it is “(1 ) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without proc edures required by law, rule or regulation having been followed; or (3) unsupported by substantial evidence. ” 5 U.S.C. § 7703(c); see Kewley v. Dep ’ t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). After careful review of the decision and the record here, we believe thatLEIJA v. DVA 12

Ms. Leija’s restoration appeal was properly adjudicated by the Board, but her termination appeal was not

. 2

A. The Termination Appeal
Ms. Leija was removed from federal employment u nder the authority granted to the VA in Chapter 75 of the United States Code

. A governmental agency

, such as the VA

, may discipline and remove an employee under Cha pter 75 “for such cause as will promote the efficiency of the

ser vice.” 5 U.S.C. § 7513(a)

. To support taking such adverse action against an employee for committing mi sconduct, an agency must: (1) “ establish by preponderant evidence that the charged conduct occurred ”; (2) “show a nexus between that conduct and the efficiency of the service ”; and (3) “ demonstrate that the penalty imposed was reasonable in light of the relevant factors set forth in Douglas v. Veterans Admin. , 5 MSPB 313, 5 M.S.P.R. 280, 307

- 08 (1981). ” Mal loy v. U.S. Postal Serv. , 578 F.3d 1351, 1356 (Fed. Cir. 2009) ; see King v. Frazier , 77 F.3d 1361, 1363 (Fed. Cir. 1996) ; Miller v. Dep’t of the Interior

, 119 M.S.P.R. 438, 441

- 42 (M.S.P.B. 2013)

. Neither the administrative judge nor the Board adequately explained how the VA made those three showings here.

In regard to the first, it is unclear that Ms. Leija committed the misconduct she was charged with —r efusal to accept reassignment as a Medical Support Assistant

. The administrat ive judge and the Board provided exte nsive discussion of how the Medical Support Assistant position and the VA’s offer to Ms. Leija for permanent employment in that role were suitable given her medical restrictions known to the VA at the time of her termin a2 We do not address the Board’s dismissal of Ms. Leija’s constructive suspension claim for lack of jurisdi ction because she has not raised that decision in her a ppeal.L EIJA v. DVA 13

tion

. But the administrative judge’s conclusion that Ms. Leija “continually rejected” a legitimate reassignment offer, Resp’t App. 15 , does not seem to be supported by substantial evidence in the record. First, w hen Ms. Leija

was removed f rom federal service for rejecting the VA’s offer of employment as a Medical Support Assistant, she was already employed in that position and appears to have been performing the duties of that job at the time of her termination

. See Resp’t App. 10

, 108

- 09. Second, wh ile Ms. Leija formally rejected the VA’s December 2010 offer of permanent employment as a Medical Support Assistant, Ms. Leija appears to have subsequently accep ted several restricted or t ransitional job offers from the VA pursuant to which she agreed to b e employed as a Medical Support Assistant. See Resp’t App

. 81, 87, 93.
Thus, it appears that, when Ms. Leija was removed from federal service , she was employed as a Medical Support Assistant and performing the duties of that position pursuant to several job offers that she accept ed— d espite her initial rejection of such employment in the VA’s December 2010 offer

. While the administrative judge seems to have simply accepted that the charged conduct (refusal of a directed reassignment) occurred because of Mr. Roger’s letter to the VA, s ee Resp’t App

. 11

, the administrative judge failed to address the relevant evidence in the record that appears to indicate that Ms. Leija negoti ated an offer of employment as a Medical Support Assistant that was acceptable to her and the VA

— which is exactly what Mr. Rogers requested in his letter.

There also appears to be scant evidence that the VA made its second required showing here

— that a nexus existed between Ms. Leija’s apparent refusal of the d irected reassignment an d the efficiency of the VA

. The administrative judge never directly discussed whether such a nexus existed

. Instead, the administrative judge appears to have relied solely on several Board cases inLEIJA v. DVA 14

which refusal to accept a reassignment was found to affect the efficiency of an agency. Resp’t App. 14

. I n those

cases, however, a refusal to accept reassignment was accompanied by absenteeism from the new position. 3 The principle applied in th ose cases is unremarka ble. A s we have specifically held, “ any sustained charge of AWOL [(absent without authorized leave)] is inherently connec ted to the efficiency of the service. ” Bryant v. Nat’ l Sci. Found. , 105 F.3d 1414, 1417 (Fed. Cir. 1997)

. Tha t legal assumption does not seem to apply here though because a bsenteeism by Ms. Leija does not appear to be an issue. T he administrative judge did not find that she was AWOL after refusing reassignment. W ith the except ion of one unclear handwritten anno tation

, see Resp’t App. 80 , the record does not reveal any evidence of unauthorized leave by Ms. Leija . Rather, as the admini strative judge noted, Ms. Leija and her supervisor both agreed that she performed the duties required of the Medical Support Assistant position even though she declined to voluntarily accept it

. 4 Resp’t App. 10

.

3 See Cooke v. U.S. Postal Serv

. , 67 M.S.P.R. 401, 407 -0 8 (M.S.P.B. 1995) (employee removed after he “ did
not report for work to either of [two newly] assigned positions ”) aff’ d

, 73 F.3d 380 (Fed. Cir. 1995) ; Nalbandian v. Dep’t of the Interior , 25 M.S.P.R. 691, 695 (1985) (e mployee removed after refusing to move for newly assigned position in a different state); Else v. Dep ’ t of Justice , 3 M.S.P.R. 397, 398 (M.S.P.B. 1980) (employee removed for

“ refusal to accept the reassignment, and for absence without leave from the new pos ition ”).

4 Reviewing similar evidence, the ECAB reached an identical conclusion. H.L.

, 2012 WL 8595448 at *3 (“ The record establishes that [Ms. Leija] had actual earnings at the [VA] since she was performing the duties of the o f-L EIJA v. DVA 15

Accordingly, it is unclear from the record how the efficiency of the service was affected by Ms. Leija’s initial rejection of permanent reassignment as a Medical Su pport Assistant

. Despite the fact that she did not want the job, Ms. Leija was reassigned by the VA to the position and performed the duties required by it

. Had Ms. Leija

re fused to perform her job, been absent without leave, or

com mitted some egregious misconduct, then the impact on the efficiency of the VA would be much clearer. 5 But limited to the record before us , we cannot de termine whether the VA has adequately proven the existence of the required nexus between Ms. Leija’s conduct and the efficiency of the VA.
Last, we do not see how the administrative judge properly considered the Douglas factors to conclude that removal of Ms. Leija was a reasonable penalty for the misconduct she may have committe d. The administrative

fered position. In correspondence to OWCP, the [VA] acknowledged that [she] was working in the offered position, but that she refused to sign the form accepting the offered job. ”).

5 See, e.g, Walley v. Dep’t of Veterans Affairs

, 279 F.3d 1010, 10 13 (Fed. Cir. 2002) (una uthorized absences prevented restoration claim), abrogated on other grounds by Garcia v. Dep’t of Homeland Sec. , 437 F.3d 1322 (Fed. Ci r. 2006) (en banc) ; Bryant

, 105 F.3d at 1417 (holding that an employee’s unauthorized absence justified remo val by serving the efficiency of the service); Cooke , 73 F.3d 380 (affirming removal after an employee refused a rea ssignment and was AWOL) ; Wright v. U.S. Postal Serv. , 42 F.3d 1410 (Fed. Cir. 1994) (same); Miller

, 119 M.S.P.R. 438 (collecting cases in which ref usal to accept and pe rform reassignments supported removal for promoting the efficiency of the service).LEIJA v. DVA 16

judge ’s consideration of Douglas seems to have been limited to a single citation to the case. While such terse reference to Douglas might suffice when its application is overwhelmingly clear

, it is inadequate here

. The VA asserts th at r eassigning Ms. Leija was in the interest of the service because Ms. Leija could not perform the job duties of a Diagnostic Radiological Technician but seemingly could perform the duties required of a Medical Support Assistant. Resp ’t Br. 11

- 12. Apparently , i n accord with that interest, the VA officially reassigned Ms. Leija to the Medical Support Assistant position. It then provided her several job offers in that position for trans itional or restricted duty that the record indicates she accepted

. And while employed as a Medical Support Assistant, M s. Leija seems to have performed the duties required by the job

. If indeed Ms. Leija was dutifully and continuously performing as a Medical Support Assistant, agreed to the reassignment after continued negotiation, and was on the road to a full recovery through physical therapy (as asserted by Mr. Rogers in his April 15, 2011 letter), i t is difficult to understand how the VA’s exercise of managerial discretion to remove Ms. Leija was reaso nable and ser ved the interest of the VA

. On the record here, it was therefore error for the Board to affirm Ms. Leija’s removal without applying the Douglas factors to determine if the VA acted reasonably.
Furthermore, t horoughly addressing the Douglas fa ctors in this case is of particular im port because Ms. Leija appears to have followed the long

- standing guidance we and the Board have provided to federal employees who wish to challenge agency orders

. W e and the Board have explained that such employees generally shou ld not disregard an order with which they disagree

— including one related to reassign ment; they should instead follow the order and then challenge it through appropriateL EIJA v. DVA 17

administrative channels. 6 The record appears to show that Ms. Leija followed that advi ce. Despite her unwil lingness to voluntarily accept reassignment as a Medical Support Assistant, Ms. Leija seemingly performed the duties of her new position as ordered and pursued admi nistrative relief

. A thorough discussion of the Douglas factors seems necessary to explain why Ms. Leija’s appa rent adherence to our precedent and that of the Board was inappropriate and merited her removal from federal service.
On the record here, i t simply is unclear how the VA met its evidentiary burden to sustai n the re moval of Ms. Leija under Chapter 75. The record before us does not

6 See

, e.g , New v. Dep ’ t of Veterans Affairs , 142 F.3d 1259, 1264 (Fed. Cir. 1998) (“[A] n employee is required to comply with instructions from her agency acting within its authority, unless obedience would place her in a clea rly dangerous circumstance. ”); Bigelow v. Dep ’ t of Health & Human Servs. , 750 F.2d 962, 965

- 66 (Fed. Cir. 1984) (“Unless [a] transfer is, in effec t, a discharge, [an] e mployee ha s no right simply to walk out; he must accept the orders of his superior, even if felt to be unjust, until relieved of them by judicial or administrative action.” ); Cooke , 67 M.S.P.R. at 407

- 08 (agreeing that “ even if the assignm ent was improper, the appel lant’ s recourse was to obey by performing the duties of his new position and then appeal the propriety of the assignm ent,” even if the Board’s ultimately found the reassignment improper, because “[t]he appellant’ s conduct was not protected by either privil ege or a legitimate concern that it would cause him irreparable harm ”); Taylor v. Dep’t of Health & Human Servs.

, 40 M.S.P.R. 106 , 112 (M.S.P.B. 1989) (“I f the appellant believed that her reassignment was i mproper, her recourse was to report for duty and g rieve while working.”), aff’d , 891 F.2d 299 (Fed. Cir. 1989)

.LEIJA v. DVA 18

adequately reveal whether she actually declined rea ssignment as charged , how her actions negatively affected the efficiency of the VA, or how her removal was a re asonable penalty for the c harged misconduct

. We therefore vacate the Board’s affirmance of Ms. Leija’s termination and remand for the Board to further discuss or develop the factual and legal basis necessary to properly adjud icat e her termination appeal

. B. The Restoration Appeal

The administrative judge dismissed Ms. Leija’s rest oration appeal for lack of jurisdiction after finding that she failed to present a non

- frivolous restoration claim. The administrative judge cited two primary reasons to support dismissal: (1) Ms. Leija failed to inform the VA prior to her termination that she was capable of performing all the job duties of a Diagnostic Radiological Technician; and (2) the OWCP had declared that the Medical Support Assistant position was suitable. Based upon the fact s in the record at the time of the administrative judge ’s initial determination, we see no error in the administrative judge ’s decision that jurisdiction was lacking. There is substantial evidence to support the administrative judge ’s factual finding that Ms. Leija did not inform the VA prior to her termination that she was capable of performing all the job duties of a Diagnostic Radiological Technician . As the administrative judge noted, there is a distinct lack of testimony by Ms. Leija or argument by Mr. R ogers that she provided her doctor’s written opinion to the VA. In addition, at the time of the administrative judge’s dec ision, the OWCP had declared the VA’s December 2010 job offer to be suitable. The administrative judge recognized that, once issued, “[d]ecisions on the suitability of an offered position are within the exclusive domain of the OWCP.” New , 142 F.3d at 1265. Thus, b ased on the facts as found by the administrative judge and the state of Ms. Leija’s OWCP appeal at the time of the adminis trative judge ’s decision

, we cannot say that the administrativeL EIJA v. DVA 19

judge’s dismissal of Ms. Leija’s restora tion appeal for lack of jurisdiction was erroneous.

Furthermore , we see no error in the Board’s decision to adopt the administrative judge ’s opinion despite being informed of the ECAB’s reversal of the OWCP’s suitability determination

. Ms. Leija provided the ECAB’s opinion to the Board while her petition for review was pending. The Board declined to consider it, however, after finding that the “documents from [Ms. Leija’s] OWCP appeal file” were untimely submitted and immaterial. Resp’t App. 28 . Ms. Leija argues that the Board’s decision is incorrect because it never considered the import of the ECAB’s reversal to her restoration claim

. P et’r Br. 3 -4 ; see Resp’t App. 28

- 29

. Clearly, Ms. Leija could not have submitted the ECAB’s opinion to the Board while the record was open. But the Board was correct to find that the ECAB’s decision was nevertheless irrelevant to Ms. Leija’s restoration appeal. 7

T he effect of the ECAB’s reversal c ould have been to eliminate, as a matter of law, an OWCP suitability d etermination that would compel Ms. Leija to accept the Medical Support Assistant position offered by the VA

. S ee New , 142 F.3d at 1265

. However, Ms. Leija “ returned to work and never assert ed that the [VA]’s accommodation did not comply with her physician’s instructions” prior to her termination. Walley , 279 F.3d at 1021

. And, as the administrative judge found, Ms. Leija did not inform t he VA that she could perform the duties of a Diagnostic Radiological Technician prior to her termination

. Ther efore, given the facts here, the ECAB’s reversal was imm aterial to Ms. Leija’s restoration claim because an OWCP suitability determination was “not a necessary predicate

7 On consideration during remand, the Board can consider the import of the ECAB’s reversal to the merits of Ms. Leija’s termination appeal.LEIJA v. DVA 20

to [Ms. Leija’s ] obligation to return to work

, ” Walley

, 279 F.3d at 1021 , and

— as the Board reasoned —“ do[es] not show that the [VA] was aware of . . . [Ms. Leija’s] work release [to full duty] prior to remov ing her ,” Resp’t App. 28. Thus, we see no error in the Board’s adjudication of Ms. Leija’s restoration appeal.

V

We affirm the Board’s dismissal of Ms. Leija’s restor ation appeal, vacate the Board’s denial of Ms. Leija’s termination appeal , and remand for proceedings co nsiste nt with our opinion.

AFFIRMED

- IN

- PART , VACATED

- IN

- PART , AND REMANDED