NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

CARISSIMA M. PETTUS,

Petitioner

v.

DEPARTMENT OF THE NAVY,

Respondent

______________________ 

2022-1880

______________________ 

Petition for review of the Merit Systems Protection 

Board in Nos. DC-0353-13-0409-B-1, DC-0752-16-0763-I-1.

______________________ 

Decided: July 13, 2023

______________________ 

CARISSIMA M. PETTUS, Williamsburg, VA, pro se. 

 KRISTIN ELAINE OLSON, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BRIAN M.

BOYNTON, PATRICIA M. MCCARTHY, FRANKLIN E. WHITE, JR. 

 ______________________ 

Before STOLL, LINN, and STARK, Circuit Judges.

PER CURIAM.

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2 PETTUS v. NAVY

Carissima M. Pettus appeals the final decision of the 

Merit Systems Protection Board that affirmed two initial

decisions, one granting Ms. Pettus backpay in a restoration 

appeal and the other dismissing her constructive suspension appeal. Pettus v. Dep’t of the Navy, Nos. DC-0353-13-

0409-B-1, DC-0752-16-0763-I-1, 2022 WL 1046962, at *1 

(M.S.P.B. Apr. 4, 2022) (Board Decision). For the reasons 

below, we affirm. 

BACKGROUND

On November 30, 2011, Ms. Pettus suffered an injury

while working as a police officer at the Naval Weapons Station Yorktown. She underwent reconstructive shoulder 

surgery and returned to work in a limited duty position but 

then suffered a recurrence of her injury. On November 26, 

2012, Ms. Pettus’s surgeon informed her that she reached 

maximum medical improvement, i.e., that her shoulder injury would not improve further. Her now permanent restrictions disqualified her from being a police officer. 

Shortly after, on November 29, 2012, Ms. Pettus asked

the Department of the Navy (the agency) to restore her to 

duty, specifically requesting a Program Support Assistant 

position. The agency denied her request. Ms. Pettus appealed, alleging that the agency (1) failed to restore her to 

duty in violation of 5 C.F.R. § 353.301(c) and (2) discriminated against her based on her disability. Under 5 C.F.R. 

§ 353.301(c), “[a]n individual who is physically disqualified 

for the former position or equivalent because of a compensable injury, is entitled to be placed in another position for 

which qualified that will provide the employee with the 

same status, and pay, or the nearest approximation 

thereof, consistent with the circumstances in each case.” 

On December 23, 2013, with the restoration appeal ongoing, the agency offered Ms. Pettus a Security Assistant 

position. Pettus v. Dep’t of the Navy, No. 0353-13-0409-B1, 2016 MSPB LEXIS 4436, at *9–10 (M.S.P.B. July 29, 

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PETTUS v. NAVY 3

2016) (Restoration Decision). She accepted on December 24, 2013, and began working on January 13, 2014. Id.; 

Pet. Br. 51. The agency later removed Ms. Pettus from the 

Security Assistant position. Restoration Decision, 

2016 MSPB LEXIS 4436, at *3 n.2.2 

Relevant here, for her restoration appeal, the Administrative Judge (AJ) set forth discovery deadlines and 

granted several agency requests, including a 30-day continuance and a motion to compel discovery. Board Decision, 2022 WL 1046962, at *4. Ms. Pettus failed to comply

with the AJ’s order compelling discovery. Restoration Decision, 2016 MSPB LEXIS 4436, at *6. Consequently, the

AJ sanctioned Ms. Pettus by dismissing her disability discrimination claim. Id.

Ultimately, the AJ found that the agency failed to restore Ms. Pettus as required by 5 C.F.R. § 353.301(c). Id.

at *10. The AJ ordered backpay from November 29, 2012 

(when Ms. Pettus requested restoration) to December 23, 

2013 (the day before Ms. Pettus accepted the Security Assistant position). Id. at *10–11.

Separately, Ms. Pettus filed a constructive suspension

appeal pro se, alleging that the agency constructively suspended her for more than fourteen days. Appx. 78–81.3 

The AJ dismissed her claim, explaining that Ms. Pettus’s 

“rights and remedies regarding the time period for which 

she claims [constructive suspension] . . . are subsumed in 

the restoration appeal process.” Pettus v. Dep’t of the Navy, 

1 “Pet. Br.” refers to pages in Ms. Pettus’s informal 

opening brief as numbered by operation of an electronic file 

viewing system.

2 Ms. Pettus appealed this removal, but the administrative judge dismissed it as untimely. Pet. Br. 9. 3 “Appx.” refers to the appendix filed concurrently 

with Respondent’s brief.

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4 PETTUS v. NAVY

No. DC-0752-16-0763-I-1, 2016 MSPB LEXIS 5088, 

at *12–16 (Constructive Suspension Decision). 

Ms. Pettus then appealed both her restoration and constructive suspension appeals, again pro se. Board Decision, 

2022 WL 1046962, at *1. The Board combined the appeals, 

per 5 C.F.R. § 1201.36(b), and affirmed the AJ’s initial decisions. Id.

First, the Board rejected Ms. Pettus’s argument that 

the AJ should have ordered the agency to retroactively

place her in the Program Support Assistant position she 

previously requested. Id. at *3. The Board found that, because the agency removed Ms. Pettus from the Security Assistant position for cause unrelated to the matters on 

appeal, she was not entitled to retroactive restoration. Id.

Second, the Board rejected Ms. Pettus’s argument that 

the AJ’s sanction in her restoration appeal––striking her 

disability discrimination claim––was untimely and prejudicial. Id. The Board found that the AJ did not abuse her

discretion in imposing a sanction after Ms. Pettus repeatedly failed to comply with the AJ’s orders. Id.4 

Third, the Board interpreted Ms. Pettus’s argument as 

implying that the AJ was biased in granting the agency a 

30-day continuance in the restoration appeal. Board Decision, 2022 WL 1046962, at *4. The Board found that 

Ms. Pettus failed to show bias, noting that the AJ extended 

deadlines for both parties due to the agency’s scheduling 

conflict. Id.

Lastly, the Board rejected Ms. Pettus’s challenges to the 

dismissal of her constructive suspension appeal. Id. The 

Board explained that a constructive suspension claim is 

4 Ms. Pettus has since chosen to abandon her disability discrimination claim in order for this court to have 

jurisdiction. See ECF No. 18 at 3.

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PETTUS v. NAVY 5

generally subsumed in a restoration claim when both are 

based on the same absence. Id. (citing Kinglee v. U.S. 

Postal Serv., 114 M.S.P.R. 473, ¶¶ 19–22 (2010)). 

Ms. Pettus appeals. We have jurisdiction under 

28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703.

DISCUSSION

Our authority to review a final Board decision is statutorily limited. We may only set aside a final Board decision 

if 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). Substantial evidence is “such relevant 

evidence as a reasonable mind might accept as adequate to 

support a conclusion.” Consol. Edison Co. of N.Y. 

v. N.L.R.B., 305 U.S. 197, 229 (1938).

Ms. Pettus raises several issues on appeal. First, she

contends that her entitlement to return to a “complete status quo” requires retroactive restoration to the Program 

Support Assistant position she requested on November 29, 

2012. Pet. Br. 5–6; see Resp. Br. 11. Second, she argues 

that the AJ abused her discretion in procedural matters. 

Pet. Br. 7–8. Third, she challenges the removal of her disability discrimination claim as a discovery sanction. Pet. 

Br. 8–9. Lastly, she challenges the dismissal of her constructive suspension appeal, contending that the Board 

erred in stating that the dates of her constructive discharge 

appeal and restoration appeal were the same. Pet. Br. 9. 

We address each issue in turn.5

5 Ms. Pettus also argues that the Board erroneously 

stated that her restoration appeal was under 5 C.F.R. 

§ 353.304(c), instead of § 353.301(c). Pet. Br. 9. But the 

Board properly considered Ms. Pettus’s restoration under 

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6 PETTUS v. NAVY

First, we address Ms. Pettus’s retroactive restoration

argument. Restoration requires placement to a position 

that is the “same . . . or the nearest approximation thereof,” 

in other words, the status quo. § 353.301(c). Ms. Pettus 

argues that returning her to the status quo requires retroactively restoring her to the Program Support Assistant position she initially requested, explaining that “but for[] the 

agency’s improper restoration . . . she would not have been 

removed” from the Security Assistant position. Pet Br. 9; 

see Pet. Br. 6. She also argues that the Board incorrectly 

stated that her removal was not substantially related to 

her compensable injury. Pet. Br. 6, 19. 

As the Board correctly explained, an employee removed 

for cause, rather than for reasons substantially related to 

their compensable injury, is not entitled to restoration. 

Board Decision, 2022 WL 1046962, at *3 (citing Manning 

v. U.S. Postal Serv., 118 M.S.P.R. 313, ¶ 8 (2012)). Here, 

the Board determined that “[t]he record reflects” that 

Ms. Pettus was removed “for misconduct unrelated to the 

matters on appeal,” and thus was not entitled to restoration. Board Decision, 2022 WL 1046962, at *3. But the 

§ 353.301(c) and only referenced § 353.304 to clarify a burden of proof standard. Board Decision, 2022 WL 1046962, 

at *3 n.3. Thus, there is no error.

Additionally, Ms. Pettus argues that the Board incorrectly found that she never appealed her removal. Pet. 

Br. 9. As Ms. Pettus notes, she appealed her removal and

it was dismissed as untimely. Pettus v. Dep’t of the Navy, 

DC-0752-17-0156-I-1, 2016 WL 7508803 (M.S.P.B. Dec. 29, 

2016). However, that removal, or any subsequent appeal 

for it, is not before us. See Board Decision, 2022 WL 

1046962, at *1 (listing only Restoration Decision and Constructive Suspension Decision on appeal to the Board); 

Appx. 5 (listing only that Board’s decision on appeal to this 

court). 

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PETTUS v. NAVY 7

Board only cites to the AJ’s decision for support, which 

states that the “parties informed [the AJ] that [Ms. Pettus] 

was subsequently removed from the . . . Security Assistant 

position, effective May 27, 2015, and that she did not file 

an appeal with the Board from that action.” Restoration 

Decision, 2016 MSPB LEXIS 4436, at *3 n.2. That is not 

evidence supporting a finding that Ms. Pettus’s removal 

was substantially unrelated to her compensable injury, 

much less substantial evidence. However, the Board’s error is harmless. 

The harmless error rule serves to “avoid wasteful proceedings on remand where there is no reason to believe a 

different result would have been obtained had the error not 

occurred.” In re Watts, 354 F.3d 1362, 1369 (Fed. Cir. 

2004); see 28 U.S.C. § 2111. In Shinseki v. Sanders, 

556 U.S. 396, 411–12 (2009), the Supreme Court laid out 

several factors that may inform a reviewing court’s harmless error analysis, including “the likelihood that the result 

would have been different.” Normally, the party attacking 

an agency’s determination bears the burden of showing 

that an error is harmful. Id. at 409. Thus, Ms. Pettus has 

the burden of showing that correcting the Board’s error 

would likely yield a different result. 

Ms. Pettus does not meet her burden to show that the 

Board’s error was harmful. She argues that her removal 

was related to her injury because, but for “improper restoration” to the Security Assistant position, “she would not 

have been removed.” Pet. Br. 9. This argument does not 

tie her compensable injury to the reason for her removal. 

In other words, Ms. Pettus presents no evidence that her 

removal from the Security Assistant position was related 

to her injury. We therefore find the Board’s error harmless 

and do not disturb this portion of its decision.

We now turn to Ms. Pettus’s argument that the AJ 

abused her discretion when she granted the agency an extension of time to respond to certain matters. Pet. Br. 7. 

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8 PETTUS v. NAVY

The Board explained that the AJ granted the agency (and 

Ms. Pettus) a 30-day extension based on a scheduling conflict. Board Decision, 2022 WL 1046962, at *4. “Procedural matters relative to discovery . . . fall within the sound 

discretion of the [B]oard and its officials.” Curtin v. Off. of 

Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988) (citations omitted). And these kinds of extensions are regularly 

granted. See Roberts v. Off. of Pers. Mgmt., 250 F. App’x 

346, 349 (Fed. Cir. 2007) (nonprecedential) (noting that it

is not unusual for an extension of time to be granted). We 

see no abuse of discretion in this case, and thus affirm. 

Next, we turn to Ms. Pettus’s challenge to the AJ’s 

sanction dismissing her disability discrimination claim. As 

the Supreme Court has explained, “[a] federal employee 

who claims that an agency action appealable to the MSPB 

violates an antidiscrimination statute listed in [5 U.S.C.] 

§ 7702(a)(1)6 should seek judicial review in district court, 

not the Federal Circuit,” regardless of whether the MSPB 

decided her case on procedural grounds or on the merits. 

Kloeckner v. Solis, 568 U.S. 41, 56 (2012). By choosing to 

abandon her disability discrimination claim for this court 

to have jurisdiction, Ms. Pettus chose to abandon not only 

the merits of her disability discrimination claim but the related procedural arguments as well. See ECF No. 18;

Kloeckner, 568 U.S. at 56. Thus, we cannot consider this 

issue.7 

Lastly, we address Ms. Pettus’s challenge to the 

Board’s dismissal of her constructive suspension appeal. 

6 Ms. Pettus alleged disability discrimination under 

the Rehabilitation Act of 1973, one of the antidiscrimination statutes listed in § 7702(a)(1). Appx. 28.

7 As for Ms. Pettus’s argument that she is pro se and 

did not know the law, those arguments also relate to her 

discrimination claim and are thus not before us. See ECF 

No. 18; Kloeckner, 568 U.S. at 56. 

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PETTUS v. NAVY 9

Ms. Pettus seems to argue that her restoration and constructive suspension appeals are for different dates, presumably to prevent her constructive suspension appeal 

from being subsumed by her restoration appeal. See Pet. 

Br. 9. But Ms. Pettus does not identify what the alleged 

correct dates are or how the Board erred in making its determination. See Pet. Br. 9, 12. Said otherwise, she has

failed to adequately develop her argument and has thus 

waived it. See Rodriguez v. Dep’t of Veterans Affs., 8 F.4th 

1290, 1305 (Fed. Cir. 2021) (“An issue that is merely alluded to and not developed as an argument in a party’s 

brief is deemed waived.”) 

We have considered Ms. Pettus’s remaining arguments 

and find them unpersuasive.8

8 For example, Ms. Pettus raises several issues for 

the first time on appeal, including that she accepted the 

temporary Security Assistant position under duress, Pet. 

Br. 19; challenges to the agency’s backpay calculations, 

Pet. Br. 12; and arguments related to a separate EEOC 

partial recovery appeal, Pet. Br. 9, 12. See Pettus, MSPB 

Docket No. DC-0353013-0409-B-1, Pet. for Review (Sept. 2, 

2016) (raising no argument about these issues); Pettus, 

MSPB Docket No. DC-0752-16-0763-I-1, Pet. for Review 

(Oct. 4, 2016) (same). This court has “regularly stated . . . 

that a position not presented in the tribunal under review 

will not be considered on appeal in the absence of exceptional circumstances.” Pavo Sols. LLC v. Kingston Tech. 

Co., 35 F.4th 1367, 1380 (Fed. Cir. 2022) (quoting In re 

Google Tech. Holdings LLC, 980 F.3d 858, 863 (Fed. Cir. 

2020)). Because Ms. Pettus did not raise these arguments 

before the Board and does not argue any exceptional circumstances to warrant review, she has forfeited these arguments. 

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10 PETTUS v. NAVY

CONCLUSION

For the reasons above, we affirm the Board’s final decision granting Ms. Pettus’s restoration appeal and dismissing her constructive suspension appeal. 

AFFIRMED

COSTS

No costs.

Case: 22-1880 Document: 36 Page: 10 Filed: 07/13/2023