UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ERIC L. ZICKEFOOSE,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

PH-3443-13-4329-I-1

DATE: January 9, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Eric L. Zickefoose, Pittsburgh, Pennsylvania, pro se.

Robert L. Sawicki, Philadelphia, Pennsylvania, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed his restoration appeal for lack of jurisdiction. 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 and AFFIRM the initial decision, which is now the 

Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The appellant is a mail handler. Initial Appeal File (IAF), Tab 1 at 1, Tab 6 

at 28. In 2004, the Office of Workers’ Compensation Programs (OWCP) 

approved the appellant’s workers’ compensation claim for plantar fasciitis, and he 

was given a limited-duty assignment within his medical restrictions. IAF, Tab 6 

at 6, 66. In September 2009, the agency moved the appellant from his 

limited-duty assignment to a light duty assignment, which entailed a change to his 

work schedule to 3:00 p.m. to 11:30 p.m. Id. at 41. In 2010, OWCP approved a 

claim for tarsal tunnel syndrome, noting that it should have been accepted in 

2008. Id. at 37. On November 3, 2011, the agency offered, and the appellant 

accepted under protest, a limited-duty assignment which involved the same 

3:00 p.m. to 11:30 p.m. schedule as he had under the light duty assignment. Id. at 

25-26. On January 9, 2012, OWCP ruled that this limited-duty assignment was 

appropriate, and the appellant has remained in that assignment to the present 

time. Id. at 22, 8. 
3

¶3 In the instant appeal filed in August 2013, the appellant objected to his 

change of work schedule in 2009 and sought restoration of the daytime shift 

(6:00 a.m. to 2:30 p.m.) he had enjoyed from 2004 to 2009. See IAF, Tab 1 at 3. 

He also challenged an arbitration decision that found the limited-duty assignment 

to be proper. IAF, Tab 5 at 5. The administrative judge found that the appellant 

failed to make a nonfrivolous allegation that he had been denied restoration. She 

found that he was simply disagreeing with the details of his return to the 

workplace, which is not appealable to the Board. Initial Decision (ID) at 5-7. 

The administrative judge found that the Board was without jurisdiction to review 

the correctness of the arbitration decision. ID at 7-8. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 A claim for restoration to duty under 5 C.F.R. § 353.304(c) as an employee 

who has partially recovered from a compensable injury requires, among other 

things, that the agency have denied the employee’s request for restoration. 

Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012). A partially 

recovered employee has no right to appeal the details or circumstances of a 

restoration. E.g., Hogarty v. U.S. Postal Service, 101 M.S.P.R. 376, ¶ 7 (2006); 

Miller v. U.S. Postal Service, 82 M.S.P.R. 170, ¶ 5 (1999). 

¶5 In his petition for review, the appellant reiterates his argument that he is 

entitled to restoration of the limited-duty assignment he was given in 2004, 

including the work hours associated with that assignment, i.e., 6:00 a.m. to 

2:30 p.m. Petition for Review (PFR) File, Tab 1 at 3. That assertion is incorrect; 

an agency may assign a partially-recovered employee from one set of modified 

duties to another. Paszko v. U.S. Postal Service, 119 M.S.P.R. 207, ¶ 10 n. 4

(2013). A challenge to such an action does not ordinarily concern a denial of 

restoration; it pertains merely to the “details and circumstances” of the 

restoration, which are not appealable. See id. 
4

¶6 Determinations of the suitability of an offered position are within the 

exclusive domain of OWCP, and suitability determinations by OWCP are binding 

on the Board. Bynum v. U.S. Postal Service, 112 M.S.P.R. 403, ¶ 23 (2009), 

aff’d, 382 F. App’x 934 (Fed. Cir. 2010). Because the appropriateness of the 

agency’s November 3, 2011 limited-duty assignment has been conclusively 

established by OWCP, the administrative judge correctly found that the appellant 

did not establish that he was denied restoration but was merely challenging the 

circumstances or details of that restoration. 2

 

¶7 The appellant also contests the administrative judge’s finding that the Board 

lacks jurisdiction to review the June 2013 arbitration decision. PFR File, Tab 1 at 

7-8. Generally, the Board has jurisdiction under 5 U.S.C. § 7121(d) over a 

request for review of an arbitration decision when: (1) the subject matter is one 

over which the Board has jurisdiction; (2) the appellant either (i) raised a claim of 

discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in connection with 

the underlying action, or (ii) raises a claim of discrimination in connection with 

the underlying action under 5 U.S.C. § 2302(b)(1) for the first time with the 

Board if such allegations could not be raised in the negotiated grievance 

procedure; and (3) a final decision has been issued. 5 U.S.C. § 7121(d); 5 C.F.R. 

§ 1201.155; see Jones v. Department of Energy, 120 M.S.P.R. 480, ¶ 8 (2013), 

aff’d, Nos. 2014-3072 & 2014-3081, 2014 WL 5002185 (Fed. Cir. Oct. 8, 2014). 

Postal employees are excluded from the coverage of section 7121(d), however. 

Milligan v. U.S. Postal Service, 106 M.S.P.R. 414, ¶ 7 (2007); Waters v. U.S. 

Postal Service, 36 M.S.P.R. 683, 684 (1988); 5 C.F.R. § 1201.155(a)(2). 

 2 The appellant reiterates arguments he made below that an agency employee provided 

false information to OWCP and that the agency wrongly claimed that his original 

OWCP had been closed. PFR File, Tab 1 at 3-7. These arguments are irrelevant to the 

correct disposition of this case, as OWCP has determined that the limited duties of the 

position to which the appellant is assigned are suitable. 
5

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. 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 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
6

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