UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SHIRLEY B. WADE,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

NY-0353-19-0176-I-1

DATE: July 31, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Shirley B. Wade, Brooklyn, New York, pro se.

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

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

dismissed her restoration appeal for lack of jurisdiction. Generally, we grant

petitions such as this one only in the following circumstances: 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

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
the law to the facts of the case; the administrative 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. 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, 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 and

AFFIRM the initial decision as MODIFIED with respect to the jurisdictional

analysis. 

BACKGROUND

The appellant has been employed by the agency as a Mail Handler since

1986. Initial Appeal File (IAF), Tab 6 at 7. On October 2, 2000, she suffered a

compensable injury and has been working in various modified assignments ever

since. Id. at 2-3. By letter dated June 11, 2019, the agency requested from the

appellant an updated medical note that specified her restrictions. IAF, Tab 1

at 10. The letter indicated that the last medical note on file for the appellant was

dated January 18, 2011. Id. 

The appellant submitted an updated medical note on July 5, 2019. IAF,

Tab 1 at 11, Tab 6 at 12. However, the agency discontinued her limited duty

assignment on or around that date and did not offer her a new one until August 1,

2019. IAF, Tab 9 at 8-9.

The appellant filed a restoration appeal and requested a hearing. IAF,

Tab 1. The administrative judge issued an initial decision dismissing the appeal

for lack of jurisdiction on the basis that the appellant failed to make a

nonfrivolous allegation that the agency’s new restoration offer amounted to an

arbitrary and capricious denial of restoration. IAF, Tab 11, Initial Decision. 

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The appellant has filed a petition for review, “asking for a petition for

review” and including a copy of the initial decision. Petition for Review File,

Tab 1. The agency did not file a response.

ANALYSIS

To establish jurisdiction over a restoration appeal, a partially recovered

individual such as the appellant must make nonfrivolous allegations that (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 a position with

less demanding requirements than those previously required of her, (3) the agency

denied her request for restoration, and (4) the denial was arbitrary and capricious.

Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404, ¶ 12 (2016). An agency’s

rescission of a previously provided restoration may constitute an appealable

denial of restoration. Scott v. U.S. Postal Service, 118 M.S.P.R. 375, ¶ 9 (2012).

Based on our understanding of the pleadings and the facts of this case, the

administrative judge seems to have overlooked the appellant’s primary concern.

Specifically, it appears that the appellant is contesting the agency’s

discontinuation of her former limited duty assignment and the month of work that

she lost while she was waiting for a new one. Nevertheless, regardless of how the

appellant's claim is construed, intervening precedent makes clear that the Board

lacks jurisdiction over her appeal. After the initial decision in this case was

issued, the Board issued Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶ 20,

holding that a denial of restoration is “arbitrary and capricious” only if the

agency fails to satisfy its minimum restoration obligations under 5 C.F.R.

§ 353.301(d), namely, 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. Although the U.S. Postal Service has rules that

obligate it to offer modified assignments when the work is available regardless of

whether the duties constitute those of an established position, a violation of those

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rules cannot form the basis for a Board appeal under 5 C.F.R. § 353.304(c).

Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶¶ 14-15. In other words, an

“agency’s efforts to find work that did not constitute the essential functions of an

established position cannot form the basis of a restoration claim before the

Board.” Id., ¶ 18. The necessary implication of Cronin is that an agency’s

discontinuation of a limited duty assignment that does not comprise the essential

functions of an established position is also outside the Board’s restoration

jurisdiction. For these reasons, we affirm the dismissal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS2

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 may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

2

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

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(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

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receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

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Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction.3 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

3

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

7
Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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