UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANGEL DAVID MORALES,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

NY-0353-14-0030-I-1

DATE: March 31, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Angel David Morales, Guaynabo, Puerto Rico, pro se.

Leslie L. Rowe, Esquire, New York, New York, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

found that the Board lacks jurisdiction over his claims that the agency failed to 

properly credit him for annual and sick leave, Social Security benefits, Thrift 

Savings Plan (TSP) contributions, Medicare, retirement, and life insurance after 

he returned to work following full recovery from a compensable injury after more 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

than 16 years. Generally, we grant petitions such as this one only when: the 

initial decision contains erroneous findings of material fact; the initial decision is 

based on an erroneous interpretation of statute or regulation or the erroneous 

application of the law to the facts of the case; the judge’s rulings during either the 

course of the appeal or the initial decision were not consistent with required 

procedures or involved an abuse of discretion, and the resulting error affected the 

outcome of the case; or new and material evidence or legal argument is available 

that, despite the petitioner’s due diligence, was not available when the record 

closed. See Title 5 of the Code of Federal Regulations, section 1201.115 

(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, and 

based on the following points and authorities, we conclude that the petitioner has 

not established any basis under section 1201.115 for granting the petition for 

review. Therefore, we DENY the petition for review. We AFFIRM the initial 

decision as MODIFIED by this order to add further analysis supporting the 

administrative judge’s conclusion that the appellant did not make a nonfrivolous 

allegation that the agency violated his restoration rights. We have considered the 

appellant’s alternative assertion that the Board has jurisdiction over the agency’s 

decision not to award him retirement credit as an administrative action or order 

affecting his rights or interests under federal retirement law, but we conclude that 

the Board lacks jurisdiction over this claim in the absence of a final decision from 

the Office of Personnel Management (OPM). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The following facts are undisputed: (1) the appellant was injured while on 

duty as a Distribution Window Clerk on or around February 27, 1997; (2) at the 

time he was injured, he was a Grade 05, Step K level and had a salary of 

$35,409.00; (3) he received Office of Workers’ Compensation Programs (OWCP)

payments until approximately September 16, 2013, when he was restored to a 

Distribution Window Clerk position at the Grade 6, Step O level with a salary of 
3

$54,777.00; (4) on September 21, 2013, he was awarded the Sales and Services 

Distribution Associate position that he had bid on, with the same annual base 

salary, grade, and step. See Initial Appeal File (IAF), Tab 19, Exhibits A-C. The 

appellant apparently filed two separate Board appeals in October 2013, but only 

one docket number was generated. See IAF, Tab 1. In the first appeal, the 

appellant alleged that the agency did not properly credit him for annual and sick 

leave, Social Security, TSP contributions, Medicare, retirement, and life 

insurance, for the duration of his time that he had received OWCP benefits, he 

checked the box indicating that the agency action that he was appealing was 

“[f]ailure to restore/reemploy/reinstate or improper restoration/reemployment/

reinstatement,” and he relied on 5 U.S.C. § 8151(a) and 5 C.F.R. §§ 353.107, 

353.304(a) to support his assertions. See IAF, Tab 1 at 1-8. The second appeal 

contained the same factual narrative as the first appeal, but the appellant appeared 

to be appealing an OPM or agency retirement decision or action. See id. at 9-17. 

¶3 The administrative judge issued an initial decision that dismissed the appeal 

for lack of jurisdiction. IAF, Tab 28, Initial Decision (ID). In pertinent part, she 

found that the appellant’s two appeals were “duplicative,” and she primarily 

analyzed the appellant’s assertions as a potential restoration appeal. See ID at 2 

n.2. The administrative judge discussed relevant precedent from the Board and 

the U.S. Court of Appeals for the Federal Circuit, and she concluded that the 

appellant did not make a nonfrivolous allegation of Board jurisdiction over his 

restoration appeal. See ID at 6-10. She briefly added that the appellant failed to 

make a nonfrivolous allegation that his retirement had been affected. ID at 9. In 

light of her jurisdictional ruling, the administrative judge stated that she need not

consider the appellant’s allegation that the agency failed to notify him of his 

Board appeal rights pertaining to an alleged improper restoration, and, in any 

event, the appellant had failed to explain how his substantive rights were 

prejudiced. See ID at 10 n.5.
4

¶4 The appellant has filed a petition for review, the agency has filed a 

response, and the appellant has filed a reply. Petition for Review (PFR) File, 

Tabs 1, 3-4. On review, the appellant argues generally that the Board has 

jurisdiction under two theories: (1) under its authority to review whether the 

agency satisfied its restoration obligations pursuant to 5 U.S.C. § 8151(a) and 

OPM’s implementing regulations; and (2) under its authority to review 

determinations affecting an individual’s rights or interests under federal 

retirement law. PFR File, Tab 1. He largely reiterates his arguments made 

below, and he also includes excerpts from the agency’s Employee and Labor 

Relations Manual (ELM), the OPM Civil Service Retirement System (CSRS) and 

Federal Employees’ Retirement System (FERS) Handbook, and statements from 

the Social Security Administration and Federal Retirement Thrift Investment 

Board. See id., Exhibits 1-4.

¶5 The Board’s jurisdiction is not plenary; it is limited to those matters over 

which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit 

Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears 

the burden to show that the Board has jurisdiction over the appeal. 5 C.F.R. 

§ 1201.56(a)(2)(i). For the following reasons, we agree that the appellant did not 

make a nonfrivolous allegation of improper restoration pursuant to 5 U.S.C. 

§ 8151(a). We further find that the appellant has not been subjected to an 

appealable administrative action or order affecting his interests under federal 

retirement law at this time; however, however, we notify him that he may raise 

these claims under federal retirement law to OPM for consideration. 

The appellant did not make a nonfrivolous allegation that the agency violated his 

restoration rights as described in 5 U.S.C. § 8151(a). 

¶6 The Federal Employees’ Compensation Act (FECA) provides, among other 

things, that federal employees who suffer compensable injuries enjoy certain 

restoration rights. Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 9 (2012); 

see 5 U.S.C. § 8151. Congress has explicitly granted OPM the authority to issue
5

regulations governing agencies’ obligations in this regard, and OPM has issued 

regulations requiring agencies to make certain efforts toward restoring 

compensably injured individuals to duty, depending on the timing and extent of 

their recovery. Latham, 117 M.S.P.R. 400, ¶ 9; see 5 U.S.C. § 8151; 5 C.F.R. 

§ 353.301.

2

 

¶7 We have considered the appellant’s assertion that the agency, upon his 

reemployment, failed to properly credit him for sick and annual leave, Social 

Security benefits, Medicare, TSP contributions, retirement, and life insurance for 

the 16 years that he was receiving OWCP benefits pursuant to 5 U.S.C. § 8151(a) 

and 5 C.F.R. §§ 353.107, 353.304(a). Pursuant to 5 U.S.C. § 8151(a), an 

individual who returns to duty following a compensable injury is entitled to 

service credit for the periods of leave without pay (LWOP) or separation during 

which he received OWCP compensation. In pertinent part, section 8151(a) states 

that the entire time during which the employee was receiving compensation under 

5 U.S.C. chapter 81 shall be credited to the employee for the purposes of 

within-grade step increases, retention purposes, and other rights and benefits 

based upon length of service.

3

 The issue before us is whether “other rights and 

 2 For instance, an employee, like the appellant, who is separated because of a 

compensable injury and whose full recovery takes longer than 1 year from the date 

eligibility for compensation began, is entitled to priority consideration, agencywide, for 

restoration to the position he left or an equivalent one provided he applies for 

reappointment within 30 days of the cessation of compensation. 5 C.F.R. § 353.301(b); 

see 5 U.S.C. § 8151(b)(2). An injured employee in the executive branch, including the 

U.S. Postal Service, who believes that his reemployment priority rights have been 

violated, may appeal to the Board under the provisions of the Board’s regulations. 

Nevins v. U.S. Postal Service, 107 M.S.P.R. 595, ¶ 10 (2008); see 5 C.F.R. 

§ 353.304(a). The appellant does not appear to have alleged below that the agency 

violated his reemployment priority rights. 

3 The regulation at 5 C.F.R. § 353.107, which generally tracks the language of section 

8151(a), see Gallo v. United States, 529 F.3d 1345, 1349 (Fed. Cir. 2008), states that, 

upon reemployment, an employee absent because of a compensable injury is generally 

entitled to be treated as though he had never left, and such an individual receives credit 

for the entire period of the absence for purposes of rights and benefits based upon 
6

benefits based upon length of service” in section 8151(a) includes sick and annual 

leave, Social Security benefits, Medicare, TSP contributions, retirement, and life 

insurance. We conclude that the answer is no.

¶8 Regarding the appellant’s assertion that he was entitled to retirement credit, 

we have considered precedent from the Board and the Federal Circuit that 

analyzes 5 U.S.C. § 8151(a). Based on our review of this precedent, we find that 

FERS retirement credit is not a right or benefit based upon the appellant’s length 

of service.

4

 As noted by the administrative judge in the initial decision, ID at 9, 

our reviewing court, in True v. Office of Personnel Management, 926 F.2d 1151, 

1156 (Fed. Cir. 1991), concluded that neither section 8151(a) nor section 8332(f) 

permits non-actual service to be counted toward the 5-year actual reemployment 

requirement of 5 U.S.C. § 8344(a). In reaching its conclusion, the court analyzed 

the legislative history of section 8151(a). True, 926 F.2d at 1155-56. The court 

noted that: (1) the original proposed legislation provided that the time an 

individual spent receiving OWCP benefits also would be credited for the purpose 

of “annuity computation under the civil service retirement provisions”; (2) the 

Senate passed the legislation with an amendment that struck out “annuity 

computation under the civil service retirement provisions”; and (3) the House 

concurred in the Senate amendments, including the deletion of the provision 

regarding civil service retirement in section 8151(a). See id. at 1155. Based on 

this legislative history, the court concluded that Congress expressly considered 

and rejected the possibility of allowing FECA beneficiaries to count non-actual 

service toward fulfilling the retirement annuity credit requirements of section 

8344(a). Id. at 1156.

 

seniority and length of service, including within-grade increases, career tenure, 

completion of probation, leave rate accrual, and severance pay. 

4 The record reflects that the appellant is covered by FERS. See, e.g., IAF, Tab 1 at 12, 

Tab 8 at 10 (the appellant’s Postal Service Form 50(PS-50)). 
7

¶9 The appellant asserted below that True was inapplicable because it involved 

reemployed annuitants. See IAF, Tab 20 at 15-16. Although it is accurate that 

Mr. True was a reemployed annuitant, the court subsequently expanded the 

holding of True to cases that did not involve reemployed annuitants. In Gallo v. 

Department of Transportation, 689 F.3d 1294 (Fed. Cir. 2012), the court 

addressed a situation in which the employee, like the appellant, had fully 

recovered after more than 1 year and sought retirement credit for the time that she 

had received OWCP benefits. The court rejected Ms. Gallo’s argument that, 

pursuant to 5 C.F.R. § 353.107, she was entitled to retirement credit that she 

would have received had she not been injured, explaining that it “unequivocally 

held in True that § 8151(a) does not encompass civil service retirement credit, a 

right based on actual employment time, not including time that an employee was 

receiving OWCP compensation.” 689 F.3d at 1300, 1302-03 (citing True, 

926 F.2d at 1156). Because decisions from the Federal Circuit are controlling 

authority for the Board, Fairall v. Veterans Administration, 33 M.S.P.R. 33, 39, 

aff’d, 844 F.2d 775 (Fed. Cir. 1987), we conclude that the appellant’s claims for 

retirement credit do not constitute a nonfrivolous allegation of Board jurisdiction 

over restoration matters pursuant to 5 U.S.C. § 8151(a).

¶10 We also have considered the appellant’s argument that Hatch v. Office of 

Personnel Management, 100 M.S.P.R. 204 (2005), is applicable to this matter. 

See PFR File, Tab 1 at 24-25. We disagree. Hatch addressed the issue of 

whether a partially-recovered employee who receives OWCP benefits while 

working part-time should be treated as a full-time employee for the purpose of 

computing retirement benefits. The Board’s decision to credit as full-time service 

for retirement purposes Mr. Hatch’s part-time work schedule is not relevant to 

our assessment of whether 5 U.S.C. § 8151(a) grants the Board jurisdiction to 

consider the appellant’s assertion that he should receive retirement credit for the 

entire time that he was out on LWOP and receiving OWCP benefits. See Palmer

v. Merit Systems Protection Board, 550 F.3d 1380, 1385 (Fed. Cir. 2008) 
8

(explaining that the Board’s decision in Hatch had “no bearing” on whether the 

Board has jurisdiction over Mr. Palmer’s appeal of improper restoration following 

partial recovery from a compensable injury).

¶11 Regarding the appellant’s assertion on review that the agency should have 

credited him with sick and annual leave, both the Federal Circuit and the Board 

have concluded that sick and annual leave are not rights and benefits based on 

length of service under 5 U.S.C. § 8151(a). See Palmer, 550 F.3d at 1384-85; 

Burtch v. U.S. Postal Service, 47 M.S.P.R. 518, 521, aff’d, 949 F.2d 404 (Fed. 

Cir. 1991) (Table). 

¶12 The parties agreed below that the appellant was entitled to a leave accrual 

rate based on his more than 16 years of federal employment, which would include 

the time for which he received OWCP benefits. See IAF, Tab 5 at 1-2. To the 

extent that the appellant argues on review that he is entitled to leave accrual in 

this regard, PFR File, Tab 1 at 8-9, he has not nonfrivolously alleged a basis for 

Board jurisdiction because the record reflects that he is properly accruing leave at 

a rate of 8 hours per pay period, see IAF, Tab 11 at 12 (the appellant’s September 

2013 PS-50); IAF, Tab 8 at 18 (ELM 512.311 stating that an employee should 

earn 8 hours of annual leave with 15 years or more of creditable service); see also 

Palmer, 550 F.3d at 1384-85 (“The rate at which leave accrues during each pay 

period is a benefit based on length of service.”); Burtch, 47 M.S.P.R. at 521 

(same).

¶13 The appellant has relied on various provisions of the ELM and excerpts 

from OPM’s Guide to Processing Personnel Actions to support his assertion that 

he should have been credited for leave, Social Security benefits, TSP 

contributions, Medicare, and life insurance. See PFR File, Tab 1; IAF, Tab 20. 

We have considered these references, but none persuade us that these benefits are 

based on length of service under 5 U.S.C. § 8151(a). For example, the appellant 

cited numerous ELM provisions regarding back pay awards, see PFR File, Tab 1 

at 13-14; IAF, Tab 20 at 11-12; however, the appellant did not receive a back pay 
9

award, and, thus, those provisions are inapplicable. Additionally, the appellant 

cited ELM 512.91 for the proposition that an employee who returns to pay and 

duty status following a suspension period or an involuntary separation is entitled 

to have annual leave recredited, see PFR File, Tab 1 at 12; IAF, Tab 20 at 9-10; 

however, the appellant was not suspended or involuntarily separated. 

¶14 For these reasons, we conclude that the appellant has not nonfrivolously

alleged that the Board has jurisdiction over the appeal as a claim of improper 

restoration pursuant to 5 U.S.C. § 8151(a). 

The Board lacks jurisdiction over the appellant’s assertion that the agency’s 

decision not to award him retirement credit is an administrative action or order 

affecting his rights and interests under federal retirement law.

¶15 We have considered the appellant’s alternative theory that the agency’s 

decision not to award him retirement credit for the time that he received OWCP 

benefits constitutes an administrative action or order affecting an individual’s 

rights or interests under federal retirement law. PFR File, Tab 1 at 5; 

see 5 U.S.C. § 8461(e); 5 C.F.R. § 1201.3(a)(2). As support for his assertion, the 

appellant relied on section 582.4 of the ELM and 5 U.S.C. § 8332(f), both of 

which appear to allow retirement credit for time spent receiving OWCP benefits. 

IAF, Tab 20 at 6-9; PFR, Tab 1 at 6-8, 36 (section 582.4 of the ELM). 

Additionally, the appellant referred to OPM’s CSRS and FERS Handbook, which 

states that a federal employee who is not an annuitant who returns to federal 

service after a period of separation is deemed to have been in a LWOP status 

during that part of the separation period in which he received workers’ 

compensation benefits, and the period of deemed LWOP is creditable for years of 

service counted towards eligibility and computation of benefits, and in the 

computation of the high-3 salary. See OPM CSRS and FERS Handbook, 

§ 102A3.1-1B, available at http://www.opm.gov/retirement-services/publicationsforms/csrsfers-handbook/c102.pdf?nocache=1 (last visited Mar. 24, 2015). 
10

¶16 Ordinarily, an appeal of an administrative action or order affecting an 

individual’s rights or interests under a federal retirement system arises from an 

OPM decision. Mandarino v. Department of Homeland Security, 118 M.S.P.R. 

510, ¶ 7 (2012). Here, however, there is no OPM decision regarding the 

appellant’s assertion that he was entitled to retirement credit, and there is no 

evidence that OPM or Congress delegated to the agency the authority to 

determine his entitlement to retirement credit as a matter of retirement law. Cf. 

Adams v. Department of Defense, 688 F.3d 1330, 1335-36 (Fed. Cir. 2012) (the 

appeal of an adverse Voluntary Early Retirement Authority ruling by the agency 

is within the Board’s jurisdiction because Congress delegated such authority to 

the agency); Mandarino, 118 M.S.P.R. 510, ¶ 7 (explaining that when an 

employing agency makes a decision on a request for enhanced retirement 

coverage under a delegation of authority from OPM, it “stands in OPM’s place,” 

and the appeal is from the employing agency’s decision). 5

 

¶17 In the absence of an OPM decision, the Board lacks jurisdiction over the 

appellant’s request to receive retirement credit for the 16 years that he received 

OWCP benefits. However, we notify the appellant that he may request OPM to

make a determination on his entitlement to retirement credit.

Other issues

¶18 The Board generally will not consider evidence submitted for the first time 

with the petition for review absent a showing that it was unavailable before the 

record was closed despite the party’s due diligence. Avansino v. U.S. Postal 

Service, 3 M.S.P.R. 211, 214 (1980). The appellant has not made such a showing. 

Moreover, he has not persuaded us that his TSP documentation, which appears to 

be dated after the initial decision was issued, warrants an outcome different from 

 5 There does not appear to be any meaningful difference between the relevant FERS 

provision in Adams, 5 U.S.C. § 8461(e), and the CSRS provision in Mandarino, 

5 U.S.C. § 8347(d).
11

that of the initial decision. See Russo v. Veterans Administration, 3 M.S.P.R. 

345, 349 (1980).

¶19 In light of our disposition, we need not address the appellant’s assertion on 

review that the agency was obligated to provide him with Board appeal rights. 

See PFR File, Tab 1 at 20-21.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 

final decision. 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 later 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 very 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 deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court’s 

website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide 
12

for Pro Se Petitioners and Appellants,” which is contained within the 

court’s Rules of Practice, and Forms 5, 6, and 11.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board