NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

JOHNNIE LEWIS,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

UNITED STATES POSTAL SERVICE,

Intervenor

______________________ 

2014-3108

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. CH-0353-12-0349-I-1.

______________________ 

Decided: May 13, 2015

______________________ 

JOHNNIE LEWIS, Chicago, IL, pro se.

KATRINA LEDERER, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC, for 

respondent. Also represented by BRYAN G. POLISUK. 

HEIDI L. OSTERHOUT, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 
2 LEWIS v. MSPB

Washington, DC, for intervenor. Also represented by 

BENJAMIN MARK MOSS, JOYCE R. BRANDA, ROBERT E.

KIRSCHMAN, JR., FRANKLIN E. WHITE, JR. 

______________________ 

Before REYNA, SCHALL, and HUGHES, Circuit Judges.

PER CURIAM. 

DECISION

Johnnie Lewis petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that 

dismissed his appeal for lack of jurisdiction. We affirm. 

DISCUSSION

I.

Mr. Lewis is a Mail-Processing Clerk employed by the 

Postal Service (“agency”) at its Cardiss Collins Processing 

and Distribution Center (“P&DC”) in Chicago, Illinois. 

On March 9, 2012, he appealed to the Board alleging that 

the agency had failed to restore him to duty after his 

partial recovery from an on-the-job injury. He also alleged that the agency constructively suspended him from 

duty from February 12, 2012, to March 9, 2012, the date 

of his appeal. On December 10, 2012, the administrative 

judge (“AJ”) to whom the appeal was assigned issued an 

initial decision in which she dismissed the appeal for lack 

of jurisdiction. Lewis v. U.S. Postal Serv., No. CH-0353-

12-0349-I-1 (M.S.P.B. Dec. 10, 2012) (“Initial Decision”). 

II.

The AJ first addressed Mr. Lewis’s restoration claim. 

In order for a partially recovered employee to establish 

Board jurisdiction over a restoration appeal, the employee must prove by a preponderance of the evidence that: (1) 

he was absent from his position due to a compensable 

injury; (2) he recovered sufficiently to return to duty on a 

part-time basis, or in a less physically demanding posi-
LEWIS v. MSPB 3

tion; (3) the agency denied his request for restoration; and 

(4) the agency’s denial was arbitrary and capricious 

because the agency failed to perform its obligations under 

5 C.F.R. § 353.301(d). Bledsoe v. Merit Sys. Prot. Bd., 659 

F.3d 1097, 1104 (Fed. Cir. 2011). As noted in Bledsoe, 

pursuant to § 353.301(d), an agency is required to make 

“every effort to restore” a partially recovered employee “in 

the local commuting area” and “according to the circumstances in each case.” Id. at 1103.

Mr. Lewis suffered an on-the-job back injury in 1973. 

Following his return to work, he was the successful bidder 

on a manual-clerk position in the P&DC’s Manual Letters 

Unit. This position was compatible with all his medical 

restrictions resulting from the 1973 injury. Mr. Lewis 

held this position for 35 years until the agency abolished 

all manual-clerk positions on August 27, 2011. After the 

agency abolished the manual-clerk positions, it replaced 

them with new non-traditional full-time (“NTFT”) manual-clerk positions (“NTFT positions”). The evidence was 

undisputed that the NTFT positions have the same duties, qualifications, physical requirements, and pay level 

as the position that Mr. Lewis held for 35 years. The only 

difference is that the set hours of work of the new positions are 10 hours per day, 4 days per week. The abolished positions had set hours of work of 8 hours per day, 5 

days per week. The agency posted the NTFT positions for 

bid in October and November of 2011 and in February of 

2012. Mr. Lewis did not bid for any of the positions, 

however. The agency stated that, if Mr. Lewis had bid on 

a position, he would have received it, due to his seniority.

Based upon the record before her, the AJ held that the 

Board lacked jurisdiction over Mr. Lewis’s restoration 

claim because Mr. Lewis had failed to make a nonfrivolous allegation that he was denied restoration upon 

recovery from his compensable injury. Initial Decision

at 7. “The appellant was offered more than 100 equivalent positions and he refused them,” the AJ stated. Id.
4 LEWIS v. MSPB

at 6. In arriving at her decision, the AJ rejected as “not 

credible” Mr. Lewis’s assertion that he did not bid on any 

of the posted positions because of his health and age. Id.

at 5. Citing Hardy v. United States Postal Service, 72 

M.S.P.R. 71, 74 (1996), aff’d, 114 F.3d 1207 (Fed. Cir. 

1997), the AJ also held that, because Mr. Lewis had failed 

to establish Board jurisdiction over his appeal, the Board 

could not assume jurisdiction over his related discrimination claim. Initial Decision at 7. 

With respect to Mr. Lewis’s suspension from work 

claim, the AJ found that, because Mr. Lewis himself 

repeatedly requested leave during the period from February 12, 2012, through March 9, 2012, he failed to make a 

non-frivolous allegation that the agency suspended him 

from work. Id. at 9.

On March 7, 2014, the Board denied Mr. Lewis’s petition for review and affirmed the Initial Decision. Lewis v. 

U.S. Postal Serv., No. CH-0353-12-0349-I-1 (M.S.P.B. 

Mar. 7, 2014). As a result, the Initial Decision became the 

final decision of the Board. This appeal followed. We 

have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

III.

Our scope of review in an appeal from a decision of 

the Board is limited. We must affirm the Board’s decision 

unless we find it to be (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); Kewley v. Dep’t 

of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 

1998).

IV.

As seen, consistent with our decision in Bledose, the 

Board held that it lacked jurisdiction over Mr. Lewis’s 

appeal and his related discrimination claim because Mr. 
LEWIS v. MSPB 5

Lewis failed to make a non-frivolous allegation that he 

was denied restoration upon recovery from his compensable injury. Supporting the Board’s holding is the AJ’s 

finding that Mr. Lewis had the opportunity of bidding on 

more than 100 positions that were compatible with his 

medical restrictions and that were equivalent to his prior 

manual-clerk position, but that he chose not to do so. 

That finding, in turn, is based upon undisputed evidence 

of record. In addition, the AJ rejected as “not credible” 

Mr. Lewis’s assertion that his health and age prevented 

him from working in any of the posted positions. On 

appeal, Mr. Lewis has failed to demonstrate that the 

findings of fact underlying the Board’s holding that it 

lacked jurisdiction are not supported by substantial 

evidence. The Board’s final decision must therefore be 

affirmed.

AFFIRMED

No Costs.