CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a copy of “AGENCY’S RESPONSE TO PETITION
FOR REVIEW” was transmitted by First Class Mail on this 14th day of April,
2011 to the following parties:
William D. Spencer
The Clerk of the Board
U.S. Merit Systems Protection Board

1615 M. Street, N.W.
Washington, D.C. 20419-0002

Cynthia E. a

Delivery Confirmation No. 0310 3490 0002 1909 1237

Ele BnS,.

ATTY. EARL L. COTTON, SR.



In this case, the Agency searched within a 50-mile radius of Appellant's
place of work and did not find any necessary work available within Appellant's
medical restrictions. Appellant did not assert or proffer any evidence that the
Agency's search was inadequate or did not encompass the local commuting
area. As stated before, other than filing the appeal itself, Appellant made no
effort to promote her case. Accordingly, Judge Klein found that Appellant had
failed to make a nonfrivolous allegation that the agency failed to properly define
the local commuting area and failed to raise a nonfrivolous allegation that the
agency arbitrarily and capriciously denied her restoration.

CONCLUSION

The above summary of applicable law supports the Initial Decision of
Judge Klein. Appellant has not demonstrated that Judge Klein's decision was
based on erroneous interpretation of statute or regulation, as required by 5
C.F.R. § 1201.115(a) (2). As shown above, Appellant has also failed to bring
forth new and material evidence, as required by 5 C.F.R. § 1201.115(a) (1).
Therefore, the Board should deny Appellant's Petition for Review, in its entirety.

Respectfully submitted,

Cb EMS.

Earl L. Cotton Sr.

Agency Representative

Atlanta Law Dept.

3980 Dekalb Technology Pkwy.
Suite 840

Atlanta, GA. 30340 - 2778

Tel: (770) 936 — 4820

Tel: (770) 936 - 4826


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: UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

CYNTHIA E. LUNDY,
: Appellant, DOCKET NUMBER
AT-0353-11-0369- I -1

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Vv.

UNITED STATES POSTAL SERVICE,
Agency.
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April 14, 2011 =

ory

248
AGENCY’S RESPONSE TO APPELLANT'S PETITION FOR REVIEW

COMES NOW the Agency, United States Postal Service (“Postal
Service”), and files its respons to Appellant's Petition for Review. The Postal
Service avers that the Merit Systems Protection Board (“Board”) should dismiss
Appellant's petition for two reasons. First, Appellant has not shown the
availability of new and material evidence that, despite due diligence, was not
available when the record closed. Second, Appellant has not shown that the
decision of the judge was based on an.erroneous interpretation of statute or
regulation. Therefore, Appellant's Petition for Review must be dismissed.

BACKGROUND
14. Appellant was issued a Complete Day, No Work Available letter through the
National Reassessment Process on September 23, 2010 and was advised
that there was no operationally necessary work available to Appellant within
her current medical restrictions.

2. Appellant filed the subject Appeal claiming failure to restore.

1


3. However, Appellant did nothing further to litigate her case. She did not
tespond to the Agency’s February 1, 2011 motion to dismiss. She did not
tespond to the February 10, 2011 Show Cause Order. She did not respond
to the Agency's discovery requests. She did not respond to the Agency's
Motion to Compel. She did not comply with the Board’s Order requiring
compliance.

4.. On March 2, 2011, in his Initial Decision, Administrative Judge Garry Wade
Klein dismissed Appellant's appeal for lack of jurisdiction.

5. The Appellant has filed this Petition for Review, challenging the
Administrative Judge's decision.

ARGUMENT
|. APPELLANT HAS FAILED TO SHOW THE AVAILABILITY OF NEW AND

MATERIAL EVIDENCE THAT WAS NOT AVAILABLE WHEN THE RECORD
CLOSED

Under the Board’s regulations, the review jurisdiction of the Board is
limited to those cases involving new evidence and to those cases involving errors
of law:
The petition for review must state objections to the initial decision
that are supported by references to applicable laws or regulations
and by specific references to the record.

5 C.F.R. § 1201.115(a). This section provides further:

The Board...may grant a petition for review when it is established
that:

(1) New and materia! evidence is available that, despite due
diligence was not available when the record closed; or (2) the


decision of the judge is based on an erroneous interpretation of
statute or regulation.

In her Petition for Review, Appellant does not present any new and
material evidence that was not available when the record closed. Appellant's
petition is nothing more than a futile attempt to reargue her case. Appellant's
assertions in the Petition for Review do not constitute new and material
evidence. In fact, she makes no new allegations whatsoever.

The aforementioned allegations do not constitute new and material
evidence as required by 5 C.F.R. § 1201.1159(a) and therefore, Appellant's
Petition for Review should be denied.

ll. APPELLANT HAS NOT SHOWN THAT JUDGE KLEIN’S DECISION WAS
BASED ON AN ERRONEOUS INTERPRETATION OF STATUTE OR
REGULATION.

Appellant totally fails to demonstrate that Judge Klein’s decision was
legally defective. Appellant fail to show that the Judge's interpretation was based
on an erroneous interpretation of law.

To establish Board jurisdiction over a restoration claim as a partially
tecovered employee, the appellant must make nonfrivolous allegations that the
agency violated her restoration rights. Urena v. U.S. Postal Service, 113
M.S.P.R. 6, 6 (2009). To do so, she must nonfrivolously allege facts that would
show, if proven, 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 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 denial was arbitrary and capricious. Id.