NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

HORTENCIA R. LEIJA,

Petitioner,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

______________________ 

2013-3048

______________________ 

Petition for review of the Merit Systems Protection 

Board in Nos. DA0752110588-I-1, DA0353110513-I-1, and 

DA0752110537-I-1.

______________________ 

Decided: September 12, 2013

______________________ 

HORTENCIA R. LEIJA, of San Antonio, Texas, pro se. 

CORINNE A. NIOSI, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent. With her on 

the brief were STUART F. DELERY, Acting Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN 

F. HOCKEY, Assistant Director. 

______________________ 
2 LEIJA v. DVA

Before NEWMAN, PROST, and WALLACH, Circuit Judges.

PER CURIAM. 

Hortencia Leija appeals the decision of the Merit Systems Protection Board (“Board”) affirming her removal 

from employment with the Department of Veterans 

Affairs (“VA”) and dismissing her restoration appeal for 

lack of jurisdiction. We affirm the Board’s decision that it 

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 opinion. 

I 

Hortencia Leija was employed as a Diagnostic Radiological 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. The 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 limitations, the VA offered Ms. 

Leija—and she accepted—a series of restricted duty jobs

in 2010 that were commensurate with her physical capabilities. Both Ms. Leija and her direct supervisor, Mr. 

Long, believed that she was performing the 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 reassignment as a Medical Support 

Assistant with pay retained from the GS-9 level. In its 

letter, the VA informed her that it could ask the OWCP 
LEIJA v. DVA 3

for a suitability determination of the offer if she refused. 

It further explained that, if 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 offered 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 continued 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 the ADS form, 

the VA “issued a Standard Form 52” to officially change 

her employment “from the Diagnostic Radiological Technician position to the Medical Support Assistant position,” 

while “includ[ing] retained pay.” Resp’t App. 10-11.1 The 

VA also referred its offer to the OWCP for a suitability 

determination. 

On February 14, 2011, the 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.

 
4 LEIJA v. DVA

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

Leija provided a timely response, but the OWCP did not 

find it “sufficient.” Id. On April 18, 2011, the office 

informed Ms. Leija that her workers-compensation benefits would be terminated “based on her refusal of an offer 

of suitable work.” H.L., & Dep’t of Veterans Affairs, S. 

Tex. Health Care Sys., 2012 WL 8595448 at *2 (E.C.A.B.

2012). The VA was notified of the 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 December 2010 offer. In his letter, Mr. Rogers explained that

several attempts to discuss the offer with VA representatives failed. Despite those unsuccessful attempts at 

negotiation, he 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 accommodations similar to what other technologists were receiving 

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 continue therapy 

while working in an accommodated 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 Imaging Services “approved a request to Human Resources” on 

April 18, 2011, “that [Ms. Leija] be terminated.” Resp’t 

App. 12. That request, however, was followed by a series 
LEIJA 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 “Restricted Duty Job Offer” 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 

identified in the position description included with the 

VA’s December 2010 offer to Ms. Leija for permanent 

employment as a Medical Support Assistant. Compare

Resp’t App. 78-79, with Resp’t App. 67-68. Hand 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.

Three 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 accepted and 

signed this new offer. Id. But she annotated her acceptance 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 Medical Support Assistant that appears 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” position. Resp’t App. 81. Like before, the general description 

of the job duties required by the offered 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. 
6 LEIJA v. DVA

Leija appears to have accepted the offer, which was

countersigned by a VA official. Resp’t App. 81. 

After Ms. Leija accepted that “transitional” 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 responsibilities of the offered position were nearly identical to those 

detailed in the VA’s December 2010 offer. Compare Resp’t 

App. 82-83, with Resp’t App. 67-68. One copy of the offer 

in the record indicates by handwritten 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 notes (seemingly made by Ms. Leija), including one that appears to 

indicate that her acceptance of the offer was conditioned 

upon “proper training.” 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 given a written notice of a reassignment to a Medical 

Support Assistant position as a GS-0679-04 Step 

10. The Department of Labor (DOL), Office of 

Workers’ Compensation Programs (OWCP), determined suitability of the job offer. On April 15,

2011, your written response from your representative informed the Agency that you had declined 

the job offer.

Id. 

Shortly after Ms. Leija received the “Notice of Proposed Removal,” her duty station was changed to her 

home address and her prior pending request for family 
LEIJA v. DVA 7

medical leave—to care for her elderly mother—was approved. An oral response hearing to the “Notice of Proposed Removal” was held on June 9, 2011, and the next 

day, the VA placed Ms. Leija on administrative leave. Ms. 

Leija was 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 Personnel Action” 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 challenging the VA’s actions. 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 Technician following 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 administrative judge explained that the VA “assigned [her] to the 

GS-4 grade-level” 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 reduction–in-grade 

action[,] the reassignment was taken to fulfill the [VA]’s 

restoration obligations,” so “all arguments and relief 

available to [her] will be available under the restorationbased appeal.” Id.

On January 30, 2012, the administrative judge rejected Ms. Leija’s other appeals. The administrative judge 

dismissed her constructive suspension appeal after concluding that the Board lacked jurisdiction over it. Accord-
8 LEIJA v. DVA

ing to the administrative judge, there was no jurisdiction 

because Ms. Leija “failed to show that she was constructively suspended” since she never withdrew her request

for family medical leave. Resp’t App. 17-18. 

The administrative judge also concluded that there 

was no Board jurisdiction 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 was apparent, in the administrative 

judge’s view, because the “reassignment to the Medical 

Support Assistant position was reasonable”; the permanent offer of reassignment “was found suitable by OWCP”; 

“retained pay was afforded [to Ms. Leija]”; and, based on 

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 termination, the administrative judge found that the Board 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 that 

removal is not an unreasonably harsh penalty for such a 

refusal.” Resp’t App. 14. He explained that Ms. Leija’s 

removal was therefore permissible because she “continually rejected” a legitimate reassignment offer, Resp’t App.

15; she “acknowledged that [she] could not . . . perform 

the duties of the Diagnostic Radiological Technician 

position,” Resp’t App. 14; she never told the VA that “[her 
LEIJA v. DVA 9

doctor] cleared her for full duty” in April 2011, Resp’t 

App. 15; and “the evidence show[ed] that the reassignment 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 Radiological Technician 

position,” Resp’t App. 14. 

In addition, the 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 reassigned position. Resp’t App. 15. The administrative judge 

noted that “pertinent OWCP regulation” obligates employees 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 

review of the administrative judge’s decision. Subsequent 

to that petition, the Employees’ Compensation Appeals 

Board (“ECAB”) reversed the OWCP’s decision to terminate Ms. Leija’s workers compensation benefits. H.L., 

2012 WL 8595448 at *3. The ECAB summarized certain 

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. The [VA] stated that 

a written job offer had been sent to [her] for an official 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 continued 

to work in the position on which the job offer was 

based. The record reveals that she continued to 

work for the employing establishment in that position until July 11, 2011. On July 11, 2011 the 

[VA] removed [her] from federal employment 
10 LEIJA v. DVA

based on her failure to accept a directed assignment.

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 for refusing suitable work.” Id. 

On October 22, 2012, Ms. Leija submitted the ECAB’s 

decision to the Board as “new important evidence.” Pet’r

App. Tab 3. 

Thereafter, on December 10, 2012, the Board denied 

Ms. Leija’s petition for review and adopted the administrative 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 management reasons, i.e., [she] had permanent lifting restrictions which precluded her from performing the 

essential duties of her Diagnostic Radiological Technician 

position.” Resp’t App. 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 administrative 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 administrative judge’s decision that there was no jurisdiction over 

Ms. Leija’s restoration or constructive suspension appeals. 

In addition, the Board briefly addressed why it refused 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 explained that “the[] documents [were] also not material 

because they d[id] not show that the agency was aware of 
LEIJA v. DVA 11

[Ms. Leija’s doctor’s] work release prior to removing her.” 

Id. 

III

Ms. Leija filed a timely appeal with us of the final decision of the Board. The focus of her appeal is somewhat 

imprecise. She 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. Second, she 

asserts that, as the ECAB found, the VA “confirmed that 

[she] was working in the offered [Medical Support Assistant] position, but that she refused to sign the form accepting 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 submitted 

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. 

We 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 procedures 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 that 
12 LEIJA v. DVA

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 under 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 Chapter 75 “for such cause as will promote the efficiency of the 

service.” 5 U.S.C. § 7513(a). To support taking such 

adverse action against an employee for committing misconduct, 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).” Malloy 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—refusal 

to accept reassignment as a Medical Support Assistant. 

The administrative judge and the Board provided extensive 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 termina2 We do not address the Board’s dismissal of Ms. 

Leija’s constructive suspension claim for lack of jurisdiction because she has not raised that decision in her appeal.

 
LEIJA 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, when Ms. Leija 

was removed from 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, 

while Ms. Leija formally rejected the VA’s December 2010 

offer of permanent employment as a Medical Support 

Assistant, Ms. Leija appears to have subsequently accepted several restricted or transitional job offers from the VA 

pursuant to which she agreed to be 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 accepted—

despite 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, see Resp’t App. 11, 

the administrative judge failed to address the relevant 

evidence in the record that appears to indicate that Ms. 

Leija negotiated 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 directed reassignment and 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 in 
14 LEIJA v. DVA

which refusal to accept a reassignment was found to affect 

the efficiency of an agency. Resp’t App. 14. In those

cases, however, a refusal to accept reassignment was 

accompanied by absenteeism from the new position.3 The 

principle applied in those cases is unremarkable. As we 

have specifically held, “any sustained charge of AWOL

[(absent without authorized leave)] is inherently connected to the efficiency of the service.” Bryant v. Nat’l Sci. 

Found., 105 F.3d 1414, 1417 (Fed. Cir. 1997). 

That legal assumption does not seem to apply here 

though because absenteeism by Ms. Leija does not appear 

to be an issue. The administrative judge did not find that 

she was AWOL after refusing reassignment. With the 

exception of one unclear handwritten annotation, see

Resp’t App. 80, the record does not reveal any evidence of 

unauthorized leave by Ms. Leija. Rather, as the administrative 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, 

407-08 (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) (employee 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 position”).

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 of-

 
LEIJA 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 Support 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

refused to perform her job, been absent without leave, or 

committed 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 determine 

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 committed. 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, 1013 (Fed. Cir. 2002) (unauthorized absences 

prevented restoration claim), abrogated on other grounds 

by Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322 (Fed. 

Cir. 2006) (en banc); Bryant, 105 F.3d at 1417 (holding 

that an employee’s unauthorized absence justified removal by serving the efficiency of the service); Cooke, 73 F.3d 

380 (affirming removal after an employee refused a reassignment 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 refusal to accept and perform reassignments supported removal for promoting the 

efficiency of the service).

 
16 LEIJA v. DVA

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 that reassigning 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, in 

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 transitional or restricted duty that the record indicates she 

accepted. And while employed as a Medical Support 

Assistant, Ms. 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), it is difficult to understand how the VA’s exercise 

of managerial discretion to remove Ms. Leija was reasonable and served 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, thoroughly addressing the Douglas factors in this case is of particular import 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. We and the Board have 

explained that such employees generally should not 

disregard an order with which they disagree—including 

one related to reassignment; they should instead follow 

the order and then challenge it through appropriate 
LEIJA v. DVA 17

administrative channels.6 The record appears to show 

that Ms. Leija followed that advice. Despite her unwillingness to voluntarily accept reassignment as a Medical 

Support Assistant, Ms. Leija seemingly performed the 

duties of her new position as ordered and pursued administrative relief. A thorough discussion of the Douglas

factors seems necessary to explain why Ms. Leija’s apparent adherence to our precedent and that of the Board was 

inappropriate and merited her removal from federal 

service.

On the record here, it simply is unclear how the VA 

met its evidentiary burden to sustain the removal 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 clearly dangerous circumstance.”); Bigelow v. Dep’t of Health & 

Human Servs., 750 F.2d 962, 965-66 (Fed. Cir. 1984)

(“Unless [a] transfer is, in effect, a discharge, [an] employee has 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 

assignment was improper, the appellant’s recourse was to 

obey by performing the duties of his new position and 

then appeal the propriety of the assignment,” even if the 

Board’s ultimately found the reassignment improper, 

because “[t]he appellant’s conduct was not protected by 

either privilege 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) (“If 

the appellant believed that her reassignment was improper, her recourse was to report for duty and grieve 

while working.”), aff’d, 891 F.2d 299 (Fed. Cir. 1989). 

 
18 LEIJA v. DVA

adequately reveal whether she actually declined reassignment as charged, how her actions negatively affected 

the efficiency of the VA, or how her removal was a reasonable penalty for the charged 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 adjudicate her termination appeal. 

B. The Restoration Appeal

The administrative judge dismissed Ms. Leija’s restoration 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 facts 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. Rogers that 

she provided her doctor’s written opinion to the VA. In 

addition, at the time of the administrative judge’s decision, 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, based on the facts 

as found by the administrative judge and the state of Ms. 

Leija’s OWCP appeal at the time of the administrative 

judge’s decision, we cannot say that the administrative 
LEIJA v. DVA 19

judge’s dismissal of Ms. Leija’s restoration 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. Pet’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 

The effect of the ECAB’s reversal could have been to 

eliminate, as a matter of law, an OWCP suitability determination that would compel Ms. Leija to accept the 

Medical Support Assistant position offered by the VA. See

New, 142 F.3d at 1265. However, Ms. Leija “returned to 

work and never asserted 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 the 

VA that she could perform the duties of a Diagnostic 

Radiological Technician prior to her termination. Therefore, given the facts here, the ECAB’s reversal was immaterial 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. 

 
20 LEIJA v. DVA

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 removing 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 restoration appeal, vacate the Board’s denial of Ms. Leija’s 

termination appeal, and remand for proceedings consistent with our opinion. 

AFFIRMED-IN-PART, VACATED-IN-PART, AND 

REMANDED