NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

LOIS M. JOHNSON,

Petitioner,

v.

UNITED STATES POSTAL SERVICE,

Respondent.

______________________ 

2013-3044

______________________ 

Petition for review of the Merit Systems Protection 

Board in Nos. SF0353090587-R-1 and SF0353090587-X-1. 

______________________ 

Decided: June 11, 2013

______________________ 

LOIS M. JOHNSON, of Los Angeles, California, pro se. 

JOSHUA A. MANDLEBAUM, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With 

him on the brief were STUART F. DELERY, Acting Assistant 

Attorney General, JEANNE E. DAVIDSON, Director, and 

TODD M. HUGHES, Deputy Director. Of counsel on the 

brief was MICHELLE WINDMUELLER, Appellate Attorney, 

United States Postal Service, of Washington, DC.

______________________ 
2 LOIS JOHNSON v. USPS

Before DYK, PROST, and REYNA, Circuit Judges.

PER CURIAM. 

Lois M. Johnson seeks review of a final decision of the 

Merit Systems Protection Board (“Board”). We affirm-inpart, reverse-in-part, and remand-in-part. 

BACKGROUND

Ms. Johnson is a United States Postal Service 

(“USPS”) employee with medical restrictions currently 

working as a forklift operator. In order to accommodate 

Ms. Johnson, the USPS created various modified assignments that fit within her medical restrictions. This 

practice, however, came to an end with the advent of the 

USPS’s National Reassessment Process and Ms. Johnson 

was placed on leave with wage-loss compensation status 

(“WLC status”). Accordingly, on April 8, 2009, the USPS 

discontinued Ms. Johnson’s modified position and 

searched for an “operationally necessary” position within 

her service district. With the exception of a one month 

temporary position as a passport fair representative, the 

USPS found no work suitable to Ms. Johnson. She remained on WLC status until October of 2012, when she 

accepted a position as a USPS forklift operator. 

After she was placed on WLC status, Ms. Johnson appealed to the Board with two arguments: it was improper 

to discontinue her position because the work she had been 

performing was transferred to others; and the USPS 

discriminated against her by denying her a reasonable 

accommodation. The administrative judge dismissed the 

appeal for lack of jurisdiction. On appeal, the full Board 

reversed the initial decision and remanded the appeal. 

The Board found a third issue that had not been raised by 

Ms. Johnson: the USPS was required to search Ms. Johnson’s entire local commuting area for an available position, but had only searched Ms. Johnson’s service district. 
 LOIS JOHNSON v. USPS 3

On remand, the administrative judge found for the USPS 

on the first two issues. With respect to the discontinuation issue, the administrative judge found that redistribution of Ms. Johnson’s duties to others was not improper, 

citing Hunt v. U.S. Postal Serv., 114 M.S.P.R. 379, 383, ¶ 

11 (2010). The administrative judge also found that the 

USPS did not discriminate against Ms. Johnson or fail to 

reasonably accommodate her disability. On the search 

issue, Ms. Johnson prevailed. The administrative judge 

ordered the USPS to restore Ms. Johnson to her position 

effective April 8, 2009, and to pay Ms. Johnson back pay. 

Both parties petitioned for review by the full Board. 

Ms. Johnson appealed the denial of her discrimination 

accommodation claim, but did not did not seek Boardreview of the adverse decision regarding her discontinuation. Following some procedural irregularities not relevant here, the Board adopted the administrative judge’s 

decision except as to the remedy for the incomplete 

search. The Board found that the proper remedy was a 

retroactive search of the entire local commuting area, and 

the payment of back pay if and only if the retroactive 

search revealed a position that Ms. Johnson could have 

held. 

In the period between Ms. Johnson’s petition and the 

Board’s decision, there was a change in law regarding 

when the USPS can discontinue a position: on February 

24, 2012, the Board decided Latham v. U.S. Postal Service, 117 M.S.P.R. 400 (2012), which overruled Hunt. In 

contrast to Hunt, which gave the USPS broad “authority 

to economize its operations by consolidating the tasks 

being performed by limited duty employees and reassigning them to the non-limited duty employees who would be 

otherwise performing them,” 114 M.S.P.R. at 383, ¶ 11, 

the new standard under Latham only allows the USPS to 

“discontinue a modified assignment consisting of tasks 

within an employee’s medical restrictions . . . where the 

duties of that assignment no longer need to be performed 
4 LOIS JOHNSON v. USPS

by anyone or those duties need to be transferred to other 

employees in order to provide them with sufficient work.” 

117 M.S.P.R. at 421, ¶ 31. To address this issue, the 

USPS filed supplemental briefing, supported by a declaration and some documents. Ms. Johnson did not respond 

or otherwise mention Latham, or the discontinuation 

issue, before the Board. The Board did not consider the 

USPS’s supplemental brief nor did it mention Latham, 

Hunt, or the discontinuation issue.

Now, on appeal to this court, Ms. Johnson argues that 

the USPS improperly discontinued her position—an 

argument that Ms. Johnson had presented to the administrative judge, but did not raise before the full Board. 

DISCUSSION

We affirm the Board’s 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); Tunik v. Merit Sys. Prot. Bd., 407 F.3d 1326, 

1330 (Fed. Cir. 2005).

At the outset, we note that Ms. Johnson does not contest the Board’s decision regarding her discrimination 

claim. We find no error in the Board’s decision. Accordingly, we affirm the Board’s decision on that issue. 

Ms. Johnson does, however, raise three arguments on 

appeal. First, she contends that her position was improperly terminated under the now controlling standard set 

forth in Latham. Second, she claims that the USPS’s 

submission of a supplemental brief and declaration, 

addressing Latham, violated her Due Process rights. 

Finally, she alleges that the USPS improperly conducted 

the retroactive search ordered by the full Board in October 2012. 
 LOIS JOHNSON v. USPS 5

The administrative judge rejected Ms. Johnson’s argument that her position was improperly discontinued, 

citing Hunt, 114 M.S.P.R. at 383, ¶ 11, which was controlling at that time. While both parties’ petitions for review 

were pending, the Board overruled Hunt and announced a 

new standard for when the USPS may discontinue a 

modified position. Latham, 117 M.S.P.R. at 421-22, ¶ 31. 

As the USPS concedes, Latham provides it with less 

flexibility than Hunt. Despite having the opportunity to 

do so, the Board never considered whether Ms. Johnson’s 

position was improperly discontinued under the Latham

standard, but rather adopted the administrative judge’s 

decision with respect to Ms. Johnson’s discontinuation 

under the Hunt standard. 

Although Ms. Johnson did not seek full-Board review 

of the discontinuation issue, that issue is not necessarily 

waived. Rather, because the issue was raised before the 

administrative judge but not the full Board, it is preserved for review by this court unless Ms. Johnson knowingly waived or abandoned it. See Bosley v. Merit Sys. 

Prot. Bd., 162 F.3d 665, 668-69 (Fed. Cir. 1998). The 

USPS concedes that there is no basis upon which we could 

find that Ms. Johnson knowingly waived or abandoned 

the discontinuation issue. Accordingly, the discontinuation issue is properly before us. 

Both parties agree that Latham should be applied retroactively to Ms. Johnson’s discontinuation. We cannot, 

however, apply the Latham standard now because more 

fact-finding is necessary. While the administrative judge 

made limited factual findings relevant to the Hunt standard, the different requirements of Latham were not 

addressed. See Latham, 117 M.S.P.R. at 421-23, ¶¶ 31-

33. To its credit, the USPS attempted to present the full 

Board with facts relevant to the Latham standard by 

attaching a declaration and supporting documents to a 

supplemental brief. The Board, however, never decided 

whether the USPS had satisfied the requirements of 
6 LOIS JOHNSON v. USPS

Latham. Accordingly, we remand to the Board for further 

fact-finding and instruction to apply the now controlling 

Latham standard.

Ms. Johnson also claims that the USPS’s submission 

of a supplemental brief and declaration, addressing 

Latham, violated her Due Process rights. This argument 

is both waived and without merit. It is waived because 

Ms. Johnson did not present it to the Board. Ms. Johnson 

cannot now object to the supplemental briefing on appeal. 

Moreover, any error flowing from the submission is harmless as the Board did not rely upon the supplemental 

material when considering either party’s petition for 

review. Finally, because we remand for consideration of 

her discontinuation claim under Latham, Ms. Johnson 

will have an opportunity on remand to address the merits 

of the USPS’s supplemental brief and to submit relevant 

material of her own.

Ms. Johnson also alleges that the USPS improperly 

conducted the retroactive search ordered by the full Board

in October 2012. We do not have jurisdiction to entertain 

this argument in the first instance. Rather, if Ms. Johnson believes the USPS failed to comply with the Board’s 

order concerning the retroactive search, she must request 

the Board enforce its order before appealing to this court. 

See Shoenrogge v. Dep’t of Justice, 385 F. App’x 996 (Fed. 

Cir. 2010); Weed v. Social Sec. Admin., 571 F.3d 1359 

(Fed. Cir. 2009).

AFFIRMED-IN-PART, REVERSED-IN-PART,

REMANDED-IN-PART

COSTS

Each party shall bear its own costs.