N OTE : This disposition is nonprecedential.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 System s Protection Board in No s. SF0353090587 -R- 1 and SF0353090587 -X-1

.

______________________

Decided: June 11 , 2013

______________________

L OIS M. J OHNSON , of Los Angeles, California, pro se.

J OSHUA A. M ANDLEBAUM , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC

, for respondent. With him on the brief were S TUART F. D ELERY , Acting Assistant Attorney General, J EANNE E. D AVIDSON , Director, and T ODD M. H UGHES , Deputy Director. Of counsel on the brief was M ICHELLE W INDMUELLER , Appellate Attorney, United States Postal Service, of Washington, DC.

______________________LOIS JOHNSON v. USPS 2

Before D YK , P ROST , and R EYNA , Circuit Judges.

P ER C URIAM

. Lois M. Johnson seeks review of a final decision of the M erit Systems Protection Board ( “ Board”). We affirm

- in

part
, reverse

- in

- part , and remand

- in

- part

. B ACKGROUND

Ms. Johnson is a United States Postal S ervice (“USPS” ) employee with medical restrictions currently working as a forklift operator. In order to accommodate Ms. Johnson, the USPS created various modified assig nments that fit within her medical restrictions. This practice, however, came to an e nd 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 r emained 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 a ppealed 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 B oard 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. Joh nson’s entire local commuting area for an available pos ition, but had only searched Ms. Johnson’s service district.LOIS JOHNSON v. USPS 3

On remand, t he administrative judge found for the USPS on the first two issues

. With respect to the discontinu ation issue, the administrative judge found that redistrib ution of Ms. Johnson’s duties to others was not improper, citing Hunt v. U .S

. P ostal S erv. , 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 B oard.
Ms. Johnson appealed the denial of her discrimination

ac commo dation claim, but did not did not seek B oard

review of the adverse decision regarding her discontinu ation. Following some procedural irregularities not rel evant here, t he B oard adopted the administrative judge’s decision except as to the remedy for the in complete search. The B oard 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 bet ween Ms. Johnson’s petition and the B oard’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 Se rv ice , 117 M.S.P.R. 400 (2012), which overruled Hunt

. In

co ntrast to Hunt , which gave the USPS broad “authority to economize its operations by consolidating the tasks being performed by limited duty employees and reassig ning them to the non

- limited duty employees who would be otherwise p er forming 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 performedLOIS JOHNSON v. USPS 4

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 brief ing, supported by a declar ation and some documents. Ms. Johnson did not respond or otherwise mention Latham , or the discontinuation issue, before the B oard. The B oard did not consider the USPS’s supplemental brief nor did it mention Latham

, Hunt , or the discontinuation issue.
Now, on appeal to this c ourt, Ms. Johnson argu es that the USPS improperly discontinued her position

— an argument that Ms. Johnson had presented to the admi nistrative judge, but did not raise before the full B oard.

D ISCUSSION
We affirm the Board’s decision unle ss it is: “(1) arb itrary, 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 co ntest the B oard’s decision regarding her discrimination claim. We find no error in th e B oard’s decision

. Accordingly, we affirm the B oard’s decision on that issue.

Ms. Johnson does, however, raise three arguments on appeal. First, she contends that her position was impro perly 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 B oard in Oct ob er 2012

.LOIS JOHNSON v. USPS 5

The administrative judge rejected Ms. Johnson’s a rgument that her position was improperly discontinued, citing Hunt , 114 M.S.P.R. at 383

, ¶ 11 , which was contro lling 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 B oard 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 -B oard 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 B oard

, it is pr eserved for review by this court unless Ms. Johns on kno wingly 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 discontinu ation issue is properly before us.
Both parties agree that Latham should be applied re troactively to Ms. Johnson’s discontinuation. We cannot, however, apply the Latham standard now because more fact

- finding is necessary. Whil e the administrative judge made limited factual findings relevant to the Hunt stan dard, 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 Boa rd wit h 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 ofLOIS JOHNSON v. USPS 6

Latham . Accordingly, we remand to the Board for furt her 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 an d 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 har mless 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 B oard in October 2012. We do not have jurisdiction to entertain this argument in the first instance. Rather, if Ms. Joh nson believes the USPS failed to compl y with the B oard’s order concerning the retroactive search , she must request the Board enforce its order before appealing to this c ourt. 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

C OSTS Each party shall bear its own costs.