UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

VANESSA REDUS,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

AT-0353-17-0132-I-1

DATE: April 19, 2023

THIS ORDER IS NONPRECEDENTIAL*

Vanessa Redus, Cordova, Tennessee, pro se.

Sandra W. Bowens, Esquire, Memphis, Tennessee, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed her restoration appeal for lack of jurisdiction. For the reasons 

discussed below, we GRANT the appellant’s petition for review, VACATE the 

initial decision, and REMAND the case to the regional office for further 

adjudication in accordance with this Remand Order. 

 

* A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

BACKGROUND

¶2 The agency employs the appellant as a Mail Processing Clerk. Initial 

Appeal File (IAF), Tab 1 at 1, Tab 5 at 8. She suffered compensable injuries in 

2003 and 2005. IAF, Tab 5 at 9; Petition for Review (PFR) File, Tab 1 at 3. On 

July 6, 2015, her doctor completed a Form CA-17 (Duty Status Report) that 

cleared her to resume work within certain medical restrictions. IAF, Tab 5 at 3. 

She forwarded the form to the agency’s Injury Compensation Specialist, seeking 

restoration as a partially recovered employee. Id. at 1. The agency offered the 

appellant a modified limited duty assignment dated October 1, 2015, but she 

declined it because she claimed that the physical requirements of the modified 

assignment were outside her medical restrictions. IAF, Tab 10 at 1, 6. The 

appellant alleged that she submitted additional Forms CA-17 to the Injury 

Compensation Specialist in the subsequent months. IAF, Tab 5 at 1, 4-7. As a 

result of a Form CA-17 dated January 12, 2017, the agency offered her a different

modified limited duty assignment on January 18, 2017, which she accepted. IAF,

Tab 10 at 1, 4-5; PFR File, Tab 1 at 1. 

¶3 On November 21, 2016, the appellant filed an appeal alleging that the

agency improperly denied her request for restoration as a partially recovered 

employee beginning in July 2015 and that the agency discriminated against her 

based on her disability. IAF, Tab 1. Without holding the requested hearing, the 

administrative judge issued an initial decision dismissing the appeal for lack of 

jurisdiction. IAF, Tab 19, Initial Decision (ID). She found that the appellant 

made nonfrivolous allegations that she was absent from work due to a 

compensable injury and that she recovered sufficiently to return to duty on a 

part-time basis or in a position with less demanding physical requirements than 

those previously required of her. ID at 7. She found, however, that the appellant

failed to nonfrivolously allege that the agency denied her request for restoration 

because she did not prove that the October 2015 modified assignment offer was 

outside her medical restrictions. ID at 8. She then found that, even if the 
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appellant had nonfrivolously alleged a denial of restoration, she failed to 

nonfrivolously allege that the denial was arbitrary and capricious because she 

admitted that she did not appear for investigative interviews regarding her 

extended absence. ID at 8-9. She further found that the Board lacked jurisdiction 

to consider the appellant’s disability discrimination claim in the absence of an 

otherwise appealable action. ID at 9.

¶4 The appellant has filed a petition for review. PFR File, Tab 1. The agency 

has responded in opposition. PFR File, Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The Board has jurisdiction to review whether an agency’s denial of 

restoration to a partially recovered employee was arbitrary and capricious. 

Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1103–04 (Fed. Cir.

2011), modified in part by regulation as stated in Kingsley v. U.S. Postal Service , 

123 M.S.P.R. 365, ¶ 10 (2016); 5 C.F.R. § 353.304(c). To establish jurisdiction 

and obtain a hearing on the merits, an appellant must make the following 

nonfrivolous allegations: (1) she was absent from her position due to a 

compensable injury; (2) she recovered sufficiently to return to duty on a part-time 

basis or to return to work in a position with less demanding physical requirements 

than those previously required of her; (3) the agency denied her request for 

restoration; and (4) the agency’s denial was arbitrary and capricious. Kingsley,

123 M.S.P.R. 365, ¶ 11; 5 C.F.R. § 1201.57(a)(4), (b).

¶6 While this appeal was pending on review, the Board issued a decision 

clarifying the jurisdictional standard in partial restoration appeals. Cronin v. U.S. 

Postal Service, 2022 MSPB 13. In Cronin, the Board found that a denial of 

restoration is arbitrary and capricious if—and only if—the agency failed to meet 

its obligations under 5 C.F.R. § 353.301(d). Id., ¶ 20. The Board explicitly 

overruled Latham v. U.S. Postal Service, 117 M.S.P.R. 400 (2012), and its 

progeny to the extent such precedent held that a denial of restoration may be 
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arbitrary and capricious based on an agency’s failure to comply with its 

self-imposed restoration obligations, such as those provided in the agency’s 

Employee and Labor Relations Manual. Id. Accordingly, to establish jurisdiction 

under the fourth jurisdictional element, an appellant must make a nonfrivolous 

allegation that the agency failed to comply with the minimum requirement of 

5 C.F.R. § 353.301(d), i.e., to search within the local commuting area for vacant 

positions to which it can restore a partially recovered employee and to consider 

her for any such vacancies. Id. 

¶7 Here, the parties did not have the benefit of the Board’s decision in Cronin

during the proceedings below, and we are unable to determine whether the 

appellant met her jurisdictional burden based on the record before us. Therefore, 

we remand the case to the regional office to allow the parties an opportunity to 

submit evidence and argument supporting their positions under the clarified 

jurisdictional standard. We advise the parties that, under Cronin, an offer of a 

modified limited duty assignment—even one within an employee’s medical 

restrictions—without evidence that the agency conducted a proper search for 

vacant positions within the local commuting area does not meet the minimum 

requirement of 5 C.F.R. § 353.301(d). Cronin, 2022 MSPB 13, ¶ 20.

¶8 Should the appellant establish jurisdiction over her appeal on remand, the 

administrative judge must adjudicate the appellant’s disability discrimination 

claim. See Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶¶ 20-21.
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ORDER

¶9 For the reasons discussed above, we remand this case to the regional office 

for further adjudication in accordance with this Remand Order. 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board