UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2016 MSPB 26

Docket No. AT-0353-16-0120-I-1 

### Dannice E. Clark, Appellant,

v. United States Postal Service, Agency. July 12, 2016

Lorenzo Cobb, Esquire, Sugarhill, Georgia, for the appellant. Earl L. Cotton, Esquire, and Kristen Walsh, Esquire, Atlanta, Georgia, for the agency.

BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

OPINION AND ORDER
¶1 The appellant petitions for review of an initial de cision that dismissed her restoration appeal for lack of Board jurisdiction. For the reasons set forth below, we DENY the petition for review. Ex cept as expressly MODIFIED by this Opinion and Order to apply the proper juri sdictional burden in restoration appeals filed after March 30, 2015, we AFFIRM the init ial decision.2

BACKGROUND ¶2 The appellant is a Distribut ion Clerk for the U.S. Po stal Service. Initial Appeal File (IAF), Tab 1 at 2. She filed the instant appeal, al leging that the agency improperly denied her restoration for a peri od of several months. Id . at 3. ¶3 Following the appellant’s initial pleadin g, the administrative judge issued two orders. The first was an ac knowledgment order, providing general information, such as the pr ocedures for engagi ng in discovery. IAF, Tab 2. The second provided the jurisdic tional burdens of proof fo r restoration claims and directed the appellant to file argument and evidence to meet her jurisdictional burden. IAF, Tab 3. Afte r the appellant failed to respond within the allotted time, the administrative j udge dismissed the appeal fo r lack of jurisdiction, without holding the requested he aring. IAF, Tab 1 at 2, Tab 5, Ini tial Decision (ID). The appellant has fi led a petition for review. 1 Petition for Review (PFR) File, Tab 1. The agen cy has filed a response. PFR File, Tab 3.

1 The appellant attached a response to the ad ministrative judge’s jurisdictional order to her petition for review, Petition for Review (PFR) File, Tab 1 at 17-25, with documentation pertaining to her requested restoration, id . at 10-16, 25-84. She claims that she attempted to submit these materials below, afte r the record on jurisdiction closed and the initial decision was issued. PFR File, Tab 1 at 3; IAF, Tab 3 at 9; ID. The record reflects that the regional office rejected submissions from the appellant received on December 28, 20 15. IAF, Tab 7. The initial decision already had been issued on December 17, 2015. IAF, Tab 6. Because there was no showing that the arguments and evidence contained in these su bmissions were previ ously unavailable, we will not consider them. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (explaining that the Board generally w ill not consider an argument raised for the first time in a petition for review absent a showing that it is base d on new and material evidence not previously available despite the party’s due diligence); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (finding that, under 5 C.F.R. § 1201.115 , the Board will not consider evidence submitte d for the first time with the petition for review absent a showing that it was unavailabl e before the record was closed despite the party’s due diligence).3

ANALYSIS The appellant’s pro forma al legations failed to satisf y her jurisdictional burden. ¶4 The appellant suggests that she did meet her jurisd ictional burden, despite failing to respond to the ad ministrative judge’s juri sdictional order below. PFR File, Tab 1 at 6 –7. We disagree. ¶5 The Board has jurisdiction to review whether an agency’s denial of restoration to a pa rtially recovered employee wa s arbitrary and capricious. Bledsoe v. Merit Systems Protection Board , 659 F.3d 1097 , 1103–04 (Fed. Cir. 2011); 5 C.F.R. § 353.304 (c). To establish jurisdic tion and obtain a hearing on the merits, an appellant is required to make nonfrivo lous allegations that: (1) she was absent from her position due to a compensabl e injury; (2) she recovered sufficiently to retu rn to duty on a part-time basi s, or to return to work in a position with less demanding physic al requirements than those previously required of her; (3) the ag ency denied her re quest for restorat ion; and (4) the agency’s denial was arbitrary and capricious. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 11 (2016); 5 C.F.R. § 1201.57 (a)(4), (b). 2An agency’s failure to adhere to its substantive re storation obligations under the Office of

2 Until recently, an appellant alleging a deni al of restoration wa s required to prove Board jurisdiction by pr eponderant evidence. Bledsoe , 659 F.3d at 1102, 1103

– 04 (citing Garcia v. Department of Homeland Security , 437 F.3d 1322 , 1330, 1335–37, 1340, 1344 (Fed. Cir. 2006) (en banc)); Latham v. U.S. Postal Service , 117 M.S.P.R. 400 , ¶ 10 (2012). However, the Boar d issued a new regulation effective March 30, 2015, that adopted a nonfrivolous alle gation standard for restoration appeals. Kingsley , 123 M.S.P.R. 365 , ¶ 10. Because the appellant filed her Board appeal after the effective date of that new regulation, she only was required to make nonfrivolous allegations of jurisdiction to obt ain a hearing on the merits. 5 C.F.R. § 1201.57 (a)(4), (b); IAF, Tab 1. Below, th e administrative judge incorrectly indicated that nonfrivolous allegations would only entitle the appellant to a hearing on jurisdiction. IAF, Tab 3 at 2; ID at 2. Although we modify the initial decision to correct the statement of the jurisdictional standard, the administrative judge’s error was harmless because he properly determined that the appellant failed to present nonfrivolous allegations of jurisdiction. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (recognizing that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision)

.4

Personnel Management’s regulations at 5 C.F.R. § 353.301 (d), including any restoration obligations it has voluntaril y adopted, is per se “arbitrary and capricious.” Latham v. U.S. Postal Service , 117 M.S.P.R. 400 , ¶ 16 (2012). ¶6 By regulation, the Boar d has defined a nonfrivol ous allegation as “an assertion that, if proven, could es tablish the matterat issue.” 5 C.F.R. § 1201.4 (s). The regulation further provides , “An allegation generally will be considered nonfrivolous when, under oath orpenalty of perjur y, an individual makes an allegation that: (1 ) Is more than conclusory; (2) Is plausible on its face; and (3) Is material to the le gal issues in the appeal.” Id . Pro forma allegations are insufficient to meet the nonfrivolous standard. Lara v. Department of Homeland Security , 101 M.S.P.R. 190 , ¶ 7 (2006). ¶7 The Board has distinguished be tween nonfrivolous and pro forma allegations in other contexts that are illustrative for restoration appeals. For example, in the context of an alleged construc tive demotion, th e Board has found that a conclusory allegation that an appellant was enti tled to promotion to her upgraded position was pro forma in the absence of supportive facts or legal argument. Fleming v. Department of Labor , 97 M.S.P.R. 341 , ¶¶ 15–16 (2004). For claims of marital status or partisan political discriminati on in a termination during a probationary or tria l period case, the Board has indicated that allegations must be more than conject ure and that an appellant must provide supporting facts to show the allegations ar e not merely pro forma. Smirne v. Department of the Army , 115 M.S.P.R. 51 , ¶ 8 (2010). Similarly, the U. S. Court of Appeals for the Federal Circuit has held that an allegation of marital status discrimination must be supported by factual asse rtions and that merely conclusory pleadings are insufficient. Stokes v. Federal Aviation Administration , 761 F.2d 682 , 686 (Fed. Cir. 1985). Finally, in the contex t of whistleblowing, the Board has found that an appellant must make specific and detailed al legations; vague, conclusory, unsupported, and pro forma al legations of al leged wrongdoing do not meet the nonfrivolous pleading standard. El v. Department of Commerce ,5

123 M.S.P.R. 76 , ¶ 6 (2015); Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 14 (2014). ¶8 Based upon the Board’s regulatory defi nition of a nonfrivolous allegation and Board precedent in other contexts, we clarify the distinction between nonfrivolous and pro forma allegations fo r restoration cases: To present nonfrivolous allegations and satisfy the jurisdicti onal burden in a restoration appeal, an appellant must present material and plausible assertions of fact that, if true, could establish that the agency breached its substa ntive restoration obligations, including any re storation obligations that it voluntarily adopted. A vague, conclusory, or unsuppor ted allegation, such as one that essentially repeats the legal standard, without more, is pro forma and insufficient. ¶9 Because the appellant failed to resp ond to the jurisdictional order, the totality of her allegations were contained in her initial pleading. IAF, Tab 1. Concerning the first jurisdic tional element, that pleadi ng did not indicate what her injury was, but it described the inju ry as work-related and resulting in her being “out on” an Office of Workers’ Compensation Programs (OWCP) related absence, which, if true, w ould indicate that the absenc e was due to a compensable injury. Id . at 3, 5. For the second jurisdic tional element, her pleading summarily alleged that she was “partially rehabilita ted” and had been “r eleased by [a] doctor to return to work.” Id . Though not further explaine d, a grievance form included in her pleading references “light/limited duty.” Id . at 5. Concerning the third element, the appellant’s pleading alle ged that she returned to work on April 13, 2015, but, after a few hours, the agency inform ed her that her limitations could not be acco mmodated at that time. Id . She reportedly remained off work through August 17, 2015. Id . at 3, 5. ¶10 Even if we were to find that the aforementioned allegati ons satisfied the nonfrivolous standard regarding the firs t three elements of the appellant’s jurisdictional burden, she fail ed to present any allegati ons that could satisfy the fourth element—that the denial of rest oration was arbitrary and capricious. Her6

pleading includes an allegation that the agency’s actions were “unwarranted, harsh, capricious, and punitive in nature.” Id . at 5. However, sh e failed to assert any facts in support of the allegation. Further, although she alleged that the agency violated the applicable collec tive bargaining agreement, she did not identify any restoration oblig ation contained therein thatthe agency violated or explain how it did so. PFR File, Tab 1 at6; IAF, Tab 1 at 5. Without the assertion of pertinent facts, the appellant merely pres ented pro forma allegations that the agency’s denial wa s arbitrary and capricious. Therefore, she failed to satisfy her jurisdictional burden. See Bledsoe , 659 F.3d at 1100, 1104–06 (finding that an appellant failed to meet her jurisdictional bu rden concerning the fourth element because “s he did not identify any vacant position which was available within her comm uting area and which she was able to perform” or otherwise “make a non

‐ frivolous allegation that th e Postal Service acted arbitrarily and capriciously in not restoring her”); cf. Manning v. U.S. Postal Service , 118 M.S.P.R. 313 , ¶ 11 (2012) (finding that an appellant met the nonfrivolous standard for the fourth jurisd ictional element where it appeared that the agency denied re storation under the mistaken beli ef that the appellant was not entitled to OWCP benefits); Chang v. U.S. Postal Service , 114 M.S.P.R. 258 , ¶¶ 10-11 (2010) (finding that, despite the inadequate s ubmissions of the appellant, the agency’s own evidence showed that it may have failed to search the entire local commuti ng area as required by 5 C.F.R. § 353.301 (d), satisfying the fourth jurisdic tional element); Tat v. U.S. Postal Service , 109 M.S.P.R. 562 , ¶ 18 (2008) (finding that an appellant met th e nonfrivolous standard for the fourth jurisdictional element because the agency denied his re quest for restoration for the stated reason that he did not have a compensabl e injury even though OWCP found that his medical condi tion was compensable).7

The administrative judge’s dismissal on jurisdictional grounds did not amount to an improper dismissal fo r failure to prosecute. ¶11 The appellant also argue s that the administrativ e judge’s dismissal on jurisdictional grounds amounted to a premat ure and improper dismissal for failure to prosecute. PFR File, Tab 1 at 4–5. In concert with that argument, the appellant’s attorney has pr esented an explanation for why he did not respond to the jurisdictional order below. Id . at 2–3. We find th at the arguments and assertions provide no basis for disturbing th e initial decision. ¶12 As an initial matter, we note that the explanations for the appellant’s failure to respond to the jurisdictional order below are unavailing. In his unsworn brief, the appellant’s representative attributes his failure to respond to a number of factors including a death in his family, th e Thanksgiving holiday, and a busy workload preparing for a h earing in another Board appeal. 3 Id . at 2–3. The agency responded, in part, with argument and s upportive evidence that the parties had settled the othe r appeal the appellant’s representative identified, eliminating the need to prepare for a hearing in that case. Compare id . at 3, with PFR File, Tab 3 at 5, 17–19. The appell ant did not reply to this argument and evidence. ¶13 Even if the appellant’s re presentative were busy pr eparing for another case, the Board has held that a heavy workload does not esta blish good cause for a late filing. Andre v. Department of the Army , 91 M.S.P.R. 342 , ¶ 8 (2002). The Board also has recognized that holidays and other competing time demands do not constitute good cause fo r an untimely filing. Melendez v. Department of Homeland Security , 112 M.S.P.R. 51 , ¶ 14 (2009); cf. Passes v. Department of the
Interior , 100 M.S.P.R. 33 , ¶ 7 (2005) (finding that the unavailability of an

3 The appellant’s representative states at one point that he was preparing for two hearings, but only identified one a ppeal. PFR File, Tab 1 at 3.8

appellant’s representative did not es tablish good cause for untimely filing a petition for review). Acco rdingly, the explanations provided for the appellant’s failure to respond to the ad ministrative judge’s jurisdic tional order do not warrant a different result. ¶14 For her argument that the administrative judge’s di smissal on jurisdictional grounds amounted to a premature and imprope r dismissal for failu re to prosecute, the appellant attempts to analogize the current situation to that of Bilandzich v. Department of the Army , 111 M.S.P.R. 301 (2009). PFR File, Tab 1 at 4. The appellant in that case fi led an appeal under the Uniformed Services Employment and Reemployment Rights Ac t of 1994 (codified at 38 U.S.C. §§ 4301 -4333) (USERRA), which, in relevant part, prot ects members of the uniformed service from employment discrimination, alle ging that his employing agency had improperly charged him military leav e for uniformed service performed on

non - workdays, causing him to use other leave to pe rform military duty. Bilandzich , 111 M.S.P.R. 301 , ¶ 2. The administra tive judge issued an acknowledgment order, noting that a person’ s entitlement to US ERRA benefits by reason of prior military service may termin ate if any of a numb er of intervening events occur, directing th e appellant to re spond by addressing whether any of those events applied to his service. Id ., ¶ 3. Although the appellant responded to a separate motion to dismiss from the agen cy, he failed to address the matter raised in the acknowledgment order. Id . Without issuing a ny further orders, the administrative judge dism issed the appeal for la ck of jurisdiction. Id ., ¶ 4. On review, the Board reversed. Id ., ¶¶ 7–9. The Board found that the dismissal for lack of jurisdiction was, in essence, a dismissal for fail ure to prosecute. Id ., ¶ 7. In doing so, the Board noted that the appellant had met his jurisdictional burden, which, in the context of a USERRA a ppeal, unconditionally entitled him to a Board hearing, despite his failure to respond to the administrative judge’s acknowledgment order. Id ., ¶¶ 7–9.9

¶15 Contrary to the appellant’s arguments, Bilandzich is not dispositive in the instant appeal; it is distingui shable from the facts at ha nd. First, this case does not involve a USERRA claim. Second, unlike the appellant in Bilandzich , the appellant in this matter did not meet her jurisdicti onal burden. Because the appellant failed to meet he r jurisdictional burden, desp ite being ordered to do so, the administrative judge’s dismissal on jurisdictional grounds was proper. We decline to adopt a standard requiring that administrative j udges respond to an appellant’s failure to meet her jurisdictional burden w ith a second opportunity to meet that burden. The administrative judge did not improperly deny th e appellant the opportunity to conduct discovery. ¶16 The appellant’s final argum ent is that the administ rative judge erred by not allowing her to conduct discovery prior to dismissing the appeal for lack of jurisdiction. PFR File, Tab 1 at 7. However, the administrative judge’s acknowledgment order provided basic discovery instructions to the appellant and referred her to the applicable regul ations. IAF, Tab 2 at 3 (citing 5 C.F.R. §§ 1201.71 -1201.85). Those basic instructions and the corresponding regulations both reflect an expectation th at the parties will start and complete discovery with minimum Board intervention. IAF, Tab 2 at 3; 5 C.F.R. § 1201.71 ; see King v. Department of the Navy , 98 M.S.P.R. 547 , ¶ 10 (2005) (recogni zing that a party does not need the Board’s approval to engage in discovery, and the Board generally only becomes involve d in discovery matters if a party files a motion to compel), aff’d , 167 F. App’x 191 (Fed. Cir. 2006); see also 5 C.F.R. § 1201.73 (c)(1), (d)(3) (containing in structions and time lim its for filing a motion to compel). Accordingly, we find that , while the appellan t is correct in suggesting that she was enti tled to engage in discove ry, her failure to avail herself of that opportunity is not attributable to the administrative judge.10

ORDER ¶17 This is the final decision of the Me rit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regul ations, section 1201.113(c) ( 5 C.F.R. § 1201.113 (c)).

NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the U.S. Court of Appeals for the Federal Circuit. You must submit your request to the court at the following address: United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W.

Washington, DC 20439 The court must receive your request for review no la ter than 60 calendar days after the date of this order. See 5 U.S.C. § 7703 (b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be ve ry careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the d eadline must be dismissed. See Pinat v. Office of Personnel Management , 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about yourright to appeal this decision to court, you should refer to the Federal law that gives you th is right. It is found in title 5 of the United St ates Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sect ions of the United States Code, at our website, http ://www.mspb.gov/appeal s/uscode/htm. Additional information is availa ble at the court’s website, www.cafc.uscourts.gov. Of pa rticular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained with in the court’s Rules of Practice, and Forms 5, 6, and 11.11

If you are interested in securing pro bo no representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informa tion regarding pro bono representation for Merit Systems Protection Board appellants before th e Federal Circuit. The Merit Systems Protection Board neither endorses the servic es provided by any attorney nor warrants that a ny attorney will accept repres entation in a given case.

FOR THE BOARD:

________________ ______________ Jennifer Everling Acting Clerk of the Board Washington, D.C.