UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2012 MSPB 20 

 Docket Nos. DA-0353-10-0408-I-1

 SF-0353-10-0329-I-1 

 CH-0353-10-0823-I-1 

 AT-0353-11-0369-I-1 

 DC-0752-11-0196-I-1 

James C. Latham, ET AL. 

Appellants,1

v. 

United States Postal Service, 

Agency. 

February 24, 2012 

James A. Penna, Amarillo, Texas, for appellant Latham. 

Geraldine Manzo, Oakland, California, for appellant Turner. 

J.R. Pritchett, McCammon, Idaho, for appellant Reaves. 

Thomas William Albright, Garner, North Carolina, for appellant Albright. 

Matthew J. Dowd, Esquire, Washington, D.C., for the appellants. 

Andrew C. Friedman, Esquire, Chicago, Illinois, Ayoka Campbell, Esquire, 

Charlotte, North Carolina, Earl L. Cotton, Sr., Esquire, Atlanta, Georgia, 

Joshua T. Klipp, Esquire, San Francisco, California, Theresa M. Gegen, 

Esquire, Dallas, Texas, and William D. Bubb, Esquire, Washington, 

D.C., for the agency. 

 

1

 The other appellants named in these appeals are Ruby N. Turner, Arleather Reaves, 

Cynthia E. Lundy, and Marcella Albright. 

 
2

BEFORE 

Susan Tsui Grundmann, Chairman 

Anne M. Wagner, Vice Chairman 

Mary M. Rose, Member 

Member Rose issues a separate dissenting opinion. 

OPINION AND ORDER

¶1 These appeals present the question of whether the agency’s own internal 

rules regarding the return to duty in modified assignments of compensably 

injured individuals 2

 are enforceable by the Board in a restoration appeal under 

5 C.F.R. § 353.304(c). For the reasons set forth below, we answer in the 

affirmative. We REVERSE the initial decisions in Latham v. U.S. Postal Service, 

MSPB Docket No. DA-0353-10-0408-I-1, and Turner v. U.S. Postal Service, 

MSPB Docket No. SF-0353-10-0329-I-1, AFFIRM the dismissal of Reaves v. 

U.S. Postal Service, MSPB Docket No. CH-0353-10-0823-I-1, as MODIFIED by 

this Opinion and Order, and REMAND Lundy v. U.S. Postal Service, MSPB 

Docket No. AT-0353-11-0369-I-1, and Albright v. U.S. Postal Service, MSPB 

Docket No. DC-0752-11-0196-I-1, for further adjudication consistent with this 

Opinion and Order. 

 

2

 The term “compensably injured individual” refers to an employee who incurs an injury 

in the performance of his duties, or suffers a disease proximately caused by his 

employment, which is covered under the Federal Employees’ Compensation Act, 

5 U.S.C. § 8101 et seq. See 5 C.F.R. § 353.102. The Federal Employees’ 

Compensation Act is a comprehensive statutory scheme which provides federal and 

Postal Service employees who are injured in the performance of their duties, including 

those who suffer from occupational disease, with workers’ compensation benefits, 

including wage and medical benefits, as well as with rights to job restoration under 

certain circumstances. These appeals concern only the appellants’ employment 

restoration claims. 
3

BACKGROUND

¶2 The appellants are employees of the agency encumbering various positions 

of record in their respective crafts. Latham Initial Appeal File (IAF), Tab 8 at 

87; Turner IAF, Tab 6, Subtab E; Reaves IAF, Tab 12 at 172; Lundy IAF, Tab 6 

at 38; Albright IAF, Tab 4, Subtab 4A. The appellants suffered compensable 

injuries that rendered them unable to perform the essential functions of their 

positions. The agency subsequently returned the appellants to duty in modified 

assignments in which they performed tasks less physically demanding than those 

previously required of them.3

 Latham IAF, Tab 8 at 45-47, 73, 109; Turner IAF, 

Tab 6, Subtabs 4K, 4M; Reaves IAF, Tab 12 at 174; Lundy IAF, Tab 6 at 57, 65; 

Albright IAF, Tab 4, Subtab 4G at 1461, 1477, 1488. Between November 30, 

2009, and September 23, 2010, the agency discontinued the appellants’ limited 

duty assignments pursuant to its National Reassessment Process (NRP), 

informing them that there were no operationally necessary tasks available for 

them to perform within their medical restrictions, and directing them to request 

leave and not to report again for duty unless they were informed that such work is 

available. 4

 Latham IAF, Tab 8 at 39; Turner IAF, Tab 6, Subtab 4B; Reaves IAF, 

Tab 12 at 60; Lundy IAF, Tab 6 at 34; Albright IAF, Tab 4, Subtab 4B. 

 

3 “Modified assignments” are assignments afforded to individuals who, because of 

compensable injury, are unable to perform the essential functions of their positions. 

They consist of tasks that do not necessarily comprise the essential functions of any 

established position. U.S. Postal Service Handbook EL-505, Injury Compensation, 

app. C (1995). Modified assignments are divided between “rehabilitation” assignments 

for employees whose work limitations are expected to be permanent and “limited duty” 

assignments for employees whose work limitations are not expected to be permanent. 

Id., ch. 7, 11. 

4

 The stated purpose of the NRP was to review current modified assignments within the 

agency in order to ensure that they consist only of “operationally necessary tasks” 

within the employees’ medical restrictions. Latham IAF, Tab 8 at 119. The agency has 

since discontinued the NRP. Oral Argument Transcript at 18, 49. 
4

¶3 Each of the five appellants filed a Board appeal and requested a hearing. 

Latham IAF, Tab 1 at 3-4; Turner IAF, Tab 1 at 3; Reaves IAF, Tab 1 at 2, 4; 

Lundy IAF, Tab 1 at 2; Albright IAF, Tab 1 at 3-4. They argued, among other 

things, that the discontinuation of their modified assignments violated the 

agency’s own internal rules, specifically the Employee and Labor Relations 

Manual (ELM) and Injury Compensation Handbook EL-505 (EL-505). Latham 

IAF, Tab 1 at 6; Turner IAF, Tab 8 at 6; Reaves IAF, Tab 13 at 4-5; Lundy IAF, 

Tab 1 at 7-12; Albright IAF, Tab 1 at 6. They requested that the Board order 

them restored to their modified assignments with back pay. Latham IAF, Tab 1 at 

4; Turner IAF, Tab 1 at 5; Reaves IAF, Tab 15 at 4; Lundy IAF, Tab 1 at 13; 

Albright IAF, Tab 1 at 7. 

¶4 The administrative judges issued initial decisions that did not grant the 

appellants their requested relief. Appellants Reaves, Lundy, and Albright had 

their appeals dismissed for lack of jurisdiction without a hearing upon findings 

that they failed to make nonfrivolous allegations that the discontinuation of their 

modified assignments was arbitrary and capricious. Reaves IAF, Tab 30 at 1-2, 

6; Lundy IAF, Tab 9 at 1, 5-6; Albright IAF, Tab 14 at 1, 12-13. Appellants 

Latham and Turner had their claims denied, after a hearing, on the basis that they 

failed to prove that the discontinuation of their modified assignments was 

arbitrary and capricious. Latham IAF, Tab 26 at 1, 4-9, 16; Turner IAF, Tab 23 

at 2, 27, 32. 

¶5 The appellants filed petitions for review, arguing again, among other 

things, that the discontinuation of their modified assignments violated the 

agency’s own internal rules, including the ELM. 5

 Latham Petition for Review 

 

5

 The ELM has been incorporated by reference into the applicable collective bargaining 

agreements. National Agreement between the National Association of Letter Carriers 

and the U.S. Postal Service, Article 19; National Agreement Between the American 

Postal Workers Union and the U.S. Postal Service, Article 19. It has also been 

incorporated into the regulations governing the Postal Service. 39 C.F.R. § 211.2. 
5

File (PFR File), Tab 1 at 6; Turner PFR File, Tab 1 at 3; Reaves PFR File, Tab 1 

at 2-5; Lundy PFR File, Tab 1 at 13-18; Albright PFR File, Tab 1 at 6-7. The 

Board consolidated the appeals for briefing. Latham PFR File, Tab 8 at 1. In its 

request for briefing, the Board asked the parties to address: (1) whether a denial 

of restoration may be “arbitrary and capricious” within the meaning of 5 C.F.R. 

§ 353.304(c) solely for being in violation of the ELM; and (2) the extent of the 

agency’s restoration obligation under the ELM. Id. at 4. The Board issued a 

Federal Register notice offering amici curiae the opportunity to comment on these 

matters as well. 76 Fed. Reg. 44,373-74 (July 25, 2011). 

¶6 The appellants and several amici responded, arguing that the agency is 

required to follow its own rules, including the ELM, and that the agency acts 

arbitrarily and capriciously when it fails to do so. Latham PFR File, Tabs 14, 19-

23, 25-28, 33. They maintained that the agency’s rules require that it provide 

partially recovered individuals with any available work within their medical 

restrictions, but they generally conceded that the agency is not required to 

provide them with busy work, “make work,” or work for the sake of work.6

 Id. 

The agency responded, arguing among other things that the Office of Personnel 

Management’s (OPM) regulations governing the restoration of partially recovered 

individuals are, for two reasons, ultra vires and therefore invalid: (1) The statute 

authorizing OPM to issue the regulations, 5 U.S.C. § 8151(b), provides 

restoration rights only to fully recovered individuals; and (2) the statute provides 

only for restoration to work that comprises the essential functions of an 

established position. Latham PFR File, Tabs 18, 31. The agency requested oral 

argument in these appeals, and the Board granted the agency’s request. Latham 

PFR File, Tabs 32, 40. 

 

6 Amicus American Postal Workers Union argues that a denial of restoration that 

violates the agency’s own rules may not be arbitrary and capricious to the extent that 

the violation was the product of a good faith dispute about the meaning or application 

of the rules. 
6

¶7 Finding that the issues presented in these appeals directly concern the 

interpretation of an OPM regulation, the Board also requested that OPM provide 

an advisory opinion addressing the question of whether an agency acts arbitrarily 

and capriciously in denying restoration to a partially recovered individual when 

such denial violates the agency’s own internal rules, such as the ELM. Latham 

PFR File, Tab 7; see 5 U.S.C. § 1204(e)(1)(A). OPM responded in the 

affirmative, explaining that agencies are required to follow their own rules, and 

that section 353.304(c) contemplates that an agency’s failure to follow its own 

rules concerning the restoration of a partially recovered individual would be 

arbitrary and capricious even if those rules go beyond the “minimum” restoration 

obligation set forth in section 353.301(d). Latham PFR File, Tab 30. 

¶8 On December 13, 2011, the Board held oral argument in these appeals. 

The Board heard argument from the appellants’ representative, the agency’s 

representative, and representatives for the amici from the American Postal 

Workers Union (APWU) and the National Association of Letter Carriers (NALC). 

The Board allowed the parties and amici to submit written closing briefs. Latham 

PFR File, Tab 43. All but the APWU, which affirmatively declined, submitted 

closing briefs by January 6, 2012, the date the record closed. Latham PFR File, 

Tabs 44, 45, 47. The Board has considered the entire record in ruling on these 

appeals. 

ANALYSIS

To establish jurisdiction over a restoration appeal under 5 C.F.R. § 353.304(c), an 

appellant must, among other things, prove by preponderant evidence that the 

denial of restoration was “arbitrary and capricious.”

¶9 As previously noted, the Federal Employees’ Compensation Act (FECA) 

provides, inter alia, that federal employees who suffer compensable injuries enjoy 
7

certain rights to be restored to their previous or comparable positions. 7

 5 U.S.C. 

§ 8151(b); Tat v. U.S. Postal Service, 109 M.S.P.R. 562, ¶ 9 (2008). Congress 

has explicitly granted OPM the authority to issue regulations governing agencies’ 

obligations in this regard. 5 U.S.C. § 8151(b). Pursuant to this authority, 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. 5 C.F.R. § 353.301; see Smith v. U.S. Postal Service, 81 M.S.P.R. 

92, ¶ 6 (1999). With respect to “partially recovered” individuals, defined in the 

regulations as those who, though not ready to resume the full range of their 

regular duties have recovered sufficiently to return to part-time or light duty or to 

another position with less demanding physical requirements, OPM’s regulations 

require agencies to “make every effort to restore in the local commuting area, 

according to the circumstances in each case, an individual who has partially 

recovered from a compensable injury and who is able to return to limited duty.” 

5 C.F.R. §§ 353.102, .301(d). 

¶10 OPM’s regulations also provide Board appeal rights to individuals affected 

by restoration decisions under 5 C.F.R. § 353.301. 5 C.F.R. § 353.304. With 

respect to partially recovered individuals, these regulations provide as follows: 

 

7

 The statute itself uses the term “retention rights” rather than “restoration rights.” 

5 U.S.C. § 8151. It seems that OPM’s predecessor agency, the Civil Service 

Commission, applied the term “restoration” to the retention of compensably injured 

individuals because Congress had previously applied it to the similar rights that it 

afforded to individuals released from military duty, see 5 U.S.C. § 3551 (1966), and the 

Commission desired to treat both statutory schemes with the same set of official 

guidance, see Employee and Labor Relations Manual, chapter 353 (1975). In other 

words, the term “restoration” was already in established use in a similar context at the 

time that Congress first afforded retention rights to compensably injured individuals. 

Since “restoration” has been used synonymously with “retention” for over 40 years by 

the agency charged with administering the statute, there should be no confusion on the 

matter at this point despite the disconnect between the language in the statute and in the 

implementing regulations. 
8

“An individual who is partially recovered from a compensable injury may appeal 

to MSPB for a determination of whether the agency is acting arbitrarily and 

capriciously in denying restoration.” 5 C.F.R. § 353.304(c). The United States 

Court of Appeals for the Federal Circuit recently issued a decision holding that, 

in order to establish jurisdiction over a restoration appeal under that section, an 

appellant must prove by preponderant evidence that: (1) He was absent from his 

position due to a compensable injury; (2) he 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 him; (3) the agency 

denied his request for restoration;8

 and (4) the denial was arbitrary and capricious 

because of the agency’s failure to perform its obligations under 5 C.F.R. 

§ 353.301(d). Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1104 

(Fed. Cir. 2011). The court’s decision in Bledsoe is inconsistent with the line of 

Board cases stating that an appellant establishes jurisdiction by making 

nonfrivolous allegations as to these elements. E.g., Chen v. U.S. Postal Service, 

97 M.S.P.R. 527, ¶ 13 (2004). The court was explicit that jurisdiction is 

established by preponderant evidence and not by nonfrivolous allegations. 

Bledsoe, 659 F.3d at 1101-02 (citing Garcia v. Department of Homeland Security, 

437 F.3d 1322 (Fed. Cir. 2006) (en banc)). Accordingly, to the extent that Chen 

and any other Board decisions state that Board jurisdiction is established by 

making nonfrivolous allegations, they are hereby overruled.9

 

8

 Discontinuation of a modified assignment may constitute a denial of restoration for 

purposes of Board jurisdiction. Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 11 

(2010) (citing Brehmer v. U.S. Postal Service, 106 M.S.P.R. 463, ¶ 9 (2007)). 

9 As a consequence of Federal Circuit’s decision in Bledsoe, an appellant who 

establishes jurisdiction over a 5 C.F.R. § 353.301(c) appeal automatically prevails on 

the merits. There is no separate jurisdictional analysis. Despite the peculiarity of this 

outcome, however, we are bound to follow our reviewing court’s precedential decision. 

See Schibik v. Department of Veterans Affairs, 98 M.S.P.R. 591, ¶ 8 (2005). Moreover, 

the Board is in no position to criticize Bledsoe because that decision is based entirely 

on the Board’s own regulations. 659 F.3d at 1101; see 5 C.F.R. § 1201.56(a)(2). 
9

¶11 It is undisputed that the appellants here have all satisfied the first three 

jurisdictional elements. Latham IAF, Tab 26 at 4; Turner IAF, Tab 23 at 6-7; 

Reaves IAF, Tab 30 at 3; Lundy IAF, Tab 9 at 4; Albright IAF, Tab 14 at 6. 

Thus, the ultimate issue is whether the appellants have proven by preponderant 

evidence that the denials of restoration were arbitrary and capricious. See Carlos 

v. U.S. Postal Service, 114 M.S.P.R. 553, ¶ 7 (2010) (the Board will determine 

whether a denial of restoration was arbitrary and capricious). However, resolving 

that issue requires, as a threshold matter, answering the fundamental question of 

law presented in these appeals, i.e., whether the Board’s jurisdiction under 

5 C.F.R. § 353.304(c) may encompass a claim that an agency’s violation of its 

internal rules resulted in an arbitrary and capricious denial of restoration. For the 

following reasons, we answer that question in the affirmative. 

The Office of Personnel Management’s regulations provide that a denial of 

restoration is per se arbitrary and capricious when it is the result of the agency’s 

violation of its own agency-specific restoration rules. 

¶12 The Board’s jurisdiction over restoration appeals derives entirely from a 

regulation promulgated by OPM at 5 C.F.R. § 353.304. As explained above, our 

jurisdiction in the case of partially recovered individuals extends only to cases in 

which the denial of restoration was arbitrary and capricious. 10 Supra ¶ 10; 

Bledsoe, 659 F.3d at 1103-04; see Chen, 97 M.S.P.R. 527, ¶¶ 17-18. Under 

OPM’s regulations, a partially recovered individual’s substantive rights with 

regard to restoration are set forth at 5 C.F.R. § 353.301(d), which provides as 

follows: 

 

10 Even if, as the dissent argues, “arbitrary and capricious” is better understood as a 

standard of review than as a jurisdictional element, we find that Bledsoe, 659 F.3d at 

1104, precludes us from making such a determination. Moreover, even if the Board 

were not constrained by Bledsoe from revisiting this issue, we would still decline to do 

so here. To follow the dissent’s approach would require overturning 15 years of Board 

case law on the matter, see, e.g., Allen v. U.S. Postal Service, 73 M.S.P.R. 73, 77 

(1997), without the parties having had any opportunity to brief it. 
10

Agencies must make every effort to restore in the local commuting 

area, according to the circumstances in each case, an individual who 

has partially recovered from a compensable injury and who is able to 

return to limited duty. At a minimum, this would mean treating 

these employees substantially the same as other handicapped 

individuals under the Rehabilitation Act of 1973, as amended.11

The Board has previously found that the “minimum” requirement of this section 

is that an agency must search within the local commuting area for vacant 

positions to which it can restore a partially recovered employee and to consider 

him for any such vacancies. Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, 

¶ 12 (2010) (citing Sapp v. U.S. Postal Service, 73 M.S.P.R. 189, 193-94 (1997)); 

see also Green v. U.S. Postal Service, 47 M.S.P.R. 661, 668 (1991) (the 

Rehabilitation Act does not require an agency to accommodate a disabled 

employee by permanently assigning him to light duty tasks when those tasks do 

not comprise a complete and separate position); Hawkins v. U.S. Postal Service, 

EEOC Docket No. 03990006, 1999 WL 91429 at *3 (Feb. 11, 1999) (an agency is 

not required to create a new position to accommodate an employee’s disability). 

However, section 353.301(d) does not state whether an agency may voluntarily 

assume greater obligations vis-à-vis restoring partially recovered individuals 

beyond the “minimum” requirements of that section, and if it does so, whether 

such obligations are enforceable by the Board under 5 C.F.R. § 353.304(c). 

Because of the potentially significant impact of these appeals, the Board sought 

an advisory opinion from OPM as to the meaning of 5 C.F.R. §§ 353.301(d) and 

.304(c). Latham PFR File, Tab 7; see 5 U.S.C. § 1204(e)(1)(A). 

¶13 OPM’s advisory opinion addresses this matter unequivocally, stating that 

the phrase “at a minimum” in 5 C.F.R. § 353.301(d) anticipates that an agency 

 

11 The regulatory standards for the Americans with Disabilities Act have been 

incorporated by reference into the Rehabilitation Act, and the Board applies them to 

determine whether there has been a Rehabilitation Act violation. 29 U.S.C. § 791(g); 

Pinegar v. Federal Election Commission, 105 M.S.P.R. 677, ¶ 36 n.3 (2007); 29 C.F.R. 

§ 1614.203(b). 
11

may adopt additional agency-specific requirements pertaining to the restoration 

of partially recovered individuals and that the regulation requires “compliance 

with an agency’s own rules as well as the provisions of OPM regulation, at least 

where they confer additional protections or benefits on the employee.” Latham 

PFR File, Tab 30 at 5. OPM further advised as follows: 

It is OPM’s opinion that if the Postal Service established a rule that 

provided the partially recovered employees with greater restoration 

rights than the “minimum” described in the OPM regulations, the 

Postal Service is required to meticulously follow that rule. To do 

otherwise would be arbitrary and capricious within the meaning of 

OPM’s regulation conferring jurisdiction on the Board at section 

353.304(c). 

Id. We find that OPM’s interpretation of its own regulation is controlling 

because it is consistent with the plain language of the regulation and is not clearly 

erroneous.

12 See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); 

Reizenstein v. Shinseki, 583 F.3d 1331, 1335 (Fed. Cir. 2009). None of the 

parties or amici dispute OPM’s interpretation of its regulations. We therefore 

find that, under the terms of OPM’s regulations, the Board has jurisdiction over 

appeals concerning denials of restoration to partially recovered individuals where 

the denial results from a violation of the agency’s own internal rules. 

¶14 As the Federal Circuit recently recognized, a denial of restoration is 

rendered arbitrary and capricious (and hence a matter over which the Board has 

jurisdiction) by an agency’s failure to perform its obligations under 5 C.F.R. 

§ 353.301(d). Bledsoe, 659 F.3d at 1104. OPM has clearly and unequivocally 

expressed its view that an agency’s obligations under 5 C.F.R. § 353.301(d) 

include those which it voluntarily assumes even if they afford greater protections 

 

12 This is not a case where OPM’s advisory opinion concerns the “construction of a 

statutory scheme” and is therefore entitled to consideration commensurate only with its 

persuasiveness. Cf. United States v. Mead Corp., 533 U.S. 218, 227-28 (2001). Rather, 

the advisory opinion concerns OPM’s interpretation of its own ambiguous regulations. 

See American Express Co. v. United States, 262 F.3d 1376, 382-83 (Fed. Cir. 2001) 

(citing Auer v. Robbins, 519 U.S. 452, 461-62 (1997)).
12

than the “minimum” requirements of that regulation. Latham PFR File, Tab 30 at 

5; see Vitarelli v. Seaton, 359 U.S. 535, 545 (1959); Dodson v. Department of the 

Army, 988 F.2d 1199, 1204 (Fed. Cir. 1993); Plezia v. Department of Veterans 

Affairs, 102 M.S.P.R. 125, ¶ 10 (2006). We therefore have no difficulty 

concluding that the Postal Service’s alleged failure to adhere to its own 

regulations in effecting the NRP as to these appellants can be the basis for finding 

an arbitrary and capricious denial of restoration for purposes of establishing 

Board jurisdiction under the terms of 5 C.F.R. § 353.304(c). 

¶15 As a final matter regarding the meaning of OPM’s restoration regulations, 

we must address the issue of whether OPM’s use of the term “arbitrary and 

capricious” was meant to exclude certain types of erroneous denials of restoration 

from the Board’s jurisdiction. OPM’s predecessor agency, the Civil Service 

Commission, introduced the term “arbitrarily and capriciously” into the 

governing regulations in 1978 as part of a new section intended to “clarify[] the 

appeal rights of employees who are not entitled to mandatory restoration”: 

“Injured employees who partially recover within 1 year of the date they begin 

receiving compensation may appeal to the Commission for a determination of 

whether their agencies are acting arbitrarily and capriciously in denying them 

restoration.” 43 Fed. Reg. 2,379 (Jan. 17, 1978) (codified in 5 C.F.R. 

§ 353.401(a)(3) (1979)). These appeal rights differed from those that the 

Commission afforded to fully recovered individuals to the extent that they did not 

offer appeal rights regarding allegedly improper restorations. See Johnson v. U.S. 

Postal Service, 6 M.S.P.R. 242, 244 (1981); 5 C.F.R. § 353.401(a)(1)(iv), (3) 

(1979). The Commission, however, does not appear to have explained whether 

the term “arbitrarily and capriciously” was meant to limit such individuals’ 

appeal rights even further, as amicus APWU argues, to situations in which the 

denial of restoration resulted from an utter disregard for or intentional violation 

of the agency’s restoration obligations. Latham PFR File, Tab 21 at 6-8, 17; Oral 

Argument Transcript (Tr.) at 32-38. 
13

¶16 For the following reasons, we do not believe that the “arbitrary and 

capricious” standard was meant to impose such limitations. First, we find that the 

APWU’s proposed interpretation would undermine the coherency of the 

regulatory scheme as a whole. See generally Lengerich v. Department of the 

Interior, 454 F.3d 1367, 1370 (Fed. Cir. 2006) (a regulatory provision is 

interpreted in the context of the regulation as a whole, reconciling the section in 

question with sections related to it). Specifically, the APWU’s proposed reading 

of the language would relieve agencies of the consequences of good faith 

violations of their substantive restoration obligations in 5 C.F.R. § 353.301(d) 

itself. See Sanchez, 114 M.S.P.R. 345, ¶¶ 12, 16-18 (describing an agency’s 

minimum restoration obligations under 5 C.F.R. §353.301(d)). We find it 

unlikely that OPM would have imposed these obligations on agencies without the 

intention that they be enforced. 13 Second, we are unaware of any practical or 

policy purpose that such a restrictive provision might serve. It would decrease 

protections for compensably injured individuals without decreasing the 

administrative burden for agencies, and it would likely complicate litigation 

significantly by injecting agency intent as an additional element of proof. Third, 

OPM stated in its advisory opinion that, in order to avoid acting arbitrarily and 

capriciously, an agency must adhere to its substantive restoration obligations and 

do so “meticulously.” Latham PFR File, Tab 30 at 6. OPM’s description of its 

 

13 We are unpersuaded by the APWU’s argument that the term “arbitrary and 

capricious” suggests that the Board’s standard should be analogous to that of the 

National Labor Relations Board in deciding whether there has been an unfair labor 

practice, i.e., not every violation of contract or the Fair Labor Standards Act, 

Pub. L. No. 75-718, 52 Stat. 1060 (1938), amounts to an unfair labor practice. Tr. at 

37-38; see 29 U.S.C. § 158. The analogy breaks down because a labor dispute that does 

not rise to the level of an unfair labor practice may still be resolved through grievance 

and arbitration; there is, in civil service law, no alternative forum to the Board for the 

resolution of restoration disputes. Certain employees may be able to pursue a remedy 

through negotiated grievance procedures, but this right is only incidental and is far from 

universal, even within the Postal Service. 
14

regulation does not permit an agency to deny restoration to a partially recovered 

individual through good faith errors. We find that OPM’s interpretation of its 

own regulation in this regard is consistent with the language of the regulation and 

is not plainly erroneous; we therefore defer to it. See Seminole Rock, 325 U.S. at 

414; White v. United States, 543 F.3d 1330, 1333-34 (Fed. Cir. 2008); Connolly 

v. Department of Homeland Security, 99 M.S.P.R. 422, ¶ 15 (2005). For all these 

reasons, we agree with the appellants that an agency’s failure to adhere to its 

substantive restoration obligations under 5 C.F.R. § 353.301(d), including any 

restoration obligations that it has voluntarily adopted, is per se “arbitrary and 

capricious” within the meaning of 5 C.F.R. § 353.304(c). 

The Office of Personnel Management’s regulations concerning the restoration of 

partially recovered individuals do not conflict with statute.

¶17 The agency, however, raises a more fundamental challenge to the Board’s 

jurisdiction in these cases. Specifically, it argues that the regulations conferring 

jurisdiction should be declared invalid as ultra vires for two reasons: (1) The 

governing statute provides restoration rights only to fully recovered individuals 

and does not authorize OPM to provide restoration rights to partially recovered 

individuals; and (2) the governing statute provides restoration rights only to 

established “positions” and does not authorize OPM to provide restoration rights 

to modified assignments. Latham PFR File, Tab 18 at 28-32; Tab 31 at 8-15, 

17-20; Tab 44 at 14-16; Tr. at 39-48, 52-56; see Bracey v. Office of Personnel 

Management, 236 F.3d 1356, 1358-62 (Fed. Cir. 2001) (modified assignments in 

the Postal Service do not constitute “positions” for disability retirement 

purposes); Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343, 

¶¶ 12-13 (2003) (same). 

¶18 The Civil Service Reform Act gives the Board original jurisdiction to 

review OPM regulations and declare them invalid if their application requires the 
15

commission of a prohibited personnel practice.14 5 U.S.C. § 1204(f). However, 

unlike federal district courts, the Board does not have jurisdiction under the 

Administrative Procedure Act (APA) to review OPM regulations for the purpose 

of determining whether they exceed the statutory grant of authority. Compare

5 U.S.C. § 706(2)(C) (under the APA, a court may hold unlawful and set aside an 

agency regulation on the basis that it exceeds statutory jurisdiction, authority, or 

limitations) with Thompson v. Office of Personnel Management, 87 M.S.P.R. 184, 

189 n.3 (2000) (the Board’s authority to declare a regulation invalid does not 

extend to challenges to OPM regulations that could be made on grounds other 

than those identified in 5 U.S.C. § 1204). 

¶19 Nevertheless, we agree with the agency that the issue of the Board’s 

jurisdiction is always before it and that the Board has the authority to determine 

its own jurisdiction. 15 Latham PFR File, Tab 44 at 8-11; see Parrish v. Merit 

Systems Protection Board, 485 F.3d 1359, 1362 (Fed. Cir. 2007). Moreover, it is 

 

14 For the first time in its post-argument briefing, the agency argues that OPM’s 

regulations are invalid because they require the commission of a prohibited personnel 

practice under 5 U.S.C. § 2302(b)(6), i.e., the granting of an unauthorized preference to 

partially recovered individuals for the purpose of improving their prospects for 

employment. Latham PFR File, Tab 44 at 11-13. Out of fairness to the parties, the 

Board will generally not consider arguments advanced for the first time in a post 

hearing brief. Cf. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) 

(the Board will not consider an argument raised for the first time in a petition for 

review absent a showing that it is based on new and material evidence not previously 

available despite the party’s due diligence). Furthermore, even if the Board were to 

consider the argument, it lacks merit because the Board has interpreted 5 U.S.C. 

§ 2303(b)(6) to cover situations where the prospects of a specific person – not a class – 

are injured or improved by an unauthorized preference. Avery v. Office of Personnel 

Management, 94 M.S.P.R. 212, ¶ 5 (2003). We therefore find no basis for the Board to 

declare OPM’s regulations invalid under 5 U.S.C. § 1204(f). 

15 For this reason, we are unpersuaded by the appellants’ argument that the Board 

should not consider the agency’s late-raised challenge to OPM’s regulations. Latham 

PFR File, Tab 47 at 10-14; Tr. at 6-9. “[T]he Board must satisfy itself that it has 

authority to adjudicate the matter before it and may raise the issue of its own 

jurisdiction sua sponte at any time.” Metzenbaum v. General Services Administration, 

96 M.S.P.R. 104, ¶ 15 (2004). 
16

likewise true that the Board has adopted a rule of adjudication that the provisions 

of a statute will prevail where there is a conflict between the statute and a 

regulation. See Johnson v. Department of Justice, 71 M.S.P.R. 59, 67 (1996). 

We discern no reason to forego application of that rule, and its ensuing analysis, 

when the issue concerns the Board’s jurisdiction. Thus, we agree with the agency 

that if an OPM regulation purporting to confer jurisdiction on the Board conflicts 

with a statutory prohibition against such jurisdiction, then the Board must defer 

to the statute in making its jurisdictional determination and decline to exercise 

jurisdiction over the appeal regardless of whether the regulation is valid under 

5 U.S.C. § 1204(f). Latham PFR File, Tab 44 at 11-13. The Board, however, 

will apply this rule of adjudication narrowly, limiting its inquiry in such cases to 

whether there is an affirmative conflict between the statute and the regulation, 

regardless of whether the regulation might otherwise have exceeded the statutory 

grant of authority. See, e.g., Aguzie v. Office of Personnel Management, 116 

M.S.P.R. 64, ¶ 20 (2011) (while not invalidating OPM’s regulations at 5 C.F.R. 

§§ 731.203(f) and 752.401(b)(10), the Board “decline[d] to follow them” to the 

extent that they conflicted with the Board’s statutory obligation to hear appeals 

under 5 U.S.C. § 7513(d)). The Board’s jurisdiction is not defined by statute 

only, but by regulation as well. See 5 U.S.C. §§ 1204(a)(1), 7701(a). 

¶20 Consequently, we will examine whether 5 U.S.C. § 8151 precludes Board 

jurisdiction over restoration claims of partially recovered individuals such as to 

render unenforceable OPM’s regulatory grant of jurisdiction to the Board at 

5 C.F.R. § 353.304(c). As always, we begin with the plain language of the 

statute: 

 Under regulations issued by the Office of Personnel 

Management – 

 (1) the department or agency which was the last employer shall 

immediately and unconditionally accord the employee, if the injury 

or disability has been overcome within one year after the date of 

commencement of compensation or from the time compensable 
17

disability recurs if the recurrence begins after the injured employee 

resumes regular full-time employment with the United States, the 

right to resume his former or an equivalent position, as well as all 

other attendant rights which the employee would have had, or 

acquired, in his former position had he not been injured or disabled, 

including the rights to tenure, promotion, and safeguards in 

reductions-in-force procedures, and 

 (2) the department or agency which was the last employer shall, if 

the injury or disability is overcome within a period of more than one 

year after the date of commencement of compensation, make all 

reasonable efforts to place, and accord priority to placing, the 

employee in his former or equivalent position within such 

department or agency, or within any other department or agency. 

5 U.S.C. § 8151(b); see Schreiber v. Burlington Northern, Inc., 472 U.S. 1, 5 

(1985) (the starting point for statutory interpretation is the text of the statute 

itself). The agency argues that the statute unambiguously limits restoration rights 

to fully recovered individuals because it provides for restoration to the “former” 

or “equivalent” position for employees who have “overcome” their disabilities. 

Latham PFR File, Tab 18 at 30-32. The agency contends that “it is unmistakable 

that ‘overcome’ must mean that an employee has recovered to the point that he or 

she is able to perform his or her former position,” and that the statute’s inclusion 

of “or equivalent” does not alter this meaning because the only reasonable 

reading of the statute is that Congress intended that an employee be restored “to a 

position with equivalent status, pay, and benefits [only] if his or her former 

position is not available.” Latham PFR File, Tab 44 at 15. According to the 

agency, it would be unreasonable to interpret the term “or equivalent” “to expand 

the range of positions with respect to which an employee had a right of placement 

based on his or her degree of recovery.” Id. at 15-16. 

¶21 We agree with the agency that the statute does not, on its face, provide 

restoration rights to partially recovered individuals. Latham PFR File, Tab 18 at 

31. The Civil Service Commission appears to have recognized this when issuing 

its official guidance: 
18

Public Law 93-416 (the 1974 amendments to the Federal Employees 

Compensation Act) directs the Commission to issue regulations 

governing the civil service retention rights of employees who sustain 

a compensable injury or disability. Although employees’ right to 

restoration under Public Law 93-416 does not vest until they have 

fully recovered, the legislative history of this law makes clear that 

Congress intended the Commission to provide certain restoration 

rights for employees who are partially recovered and who are able to 

resume limited duty. 

Federal Personnel Manual (FPM), Chapter 353, § 1-3(b) (Mar. 6, 1978). In 

addition, we note that a prior version of OPM’s restoration regulations 

distinguished between partially recovered individuals and individuals “with a 

right to restoration under 5 U.S.C. § 8151,” 5 C.F.R. §353.401(a)(1), (3) (1981), 

thereby implying that partially recovered individuals have no restoration rights 

under 5 U.S.C. § 8151 per se, see Johnson, 6 M.S.P.R. at 244. 

¶22 However, the fact that the statute does not explicitly define the rights of 

partially recovered individuals does not necessarily mean that Congress intended 

to preclude OPM from doing so by regulation. In American Trucking 

Associations v. United States, 344 U.S. 298, 309-10 (1953), the Supreme Court 

eloquently explained why the absence of statutory language addressing a 

particular concern does not necessarily indicate congressional intent to limit a 

regulating agency’s authority to address it: 

As a matter of principle, we might agree with appellants’ contentions 

if we thought it a reasonable canon of interpretation that the 

draftsmen of acts delegating agency powers, as a practical and 

realistic matter, can or do include specific consideration of every evil 

sought to be corrected. But no great acquaintance with practical 

affairs is required to know that such prescience, either in fact or in 

the minds of Congress, does not exist. Its very absence, moreover, is 

precisely one of the reasons why regulatory agencies such as the 

[Interstate Commerce Commission] are created, for it is the fond 

hope of their authors that they bring to their work the expert’s 

familiarity with industry conditions which members of the delegating 

legislatures cannot be expected to possess. 
19

 (citations omitted); see also Clifton v. Federal Election Commission, 114 F.3d 

1309, 1312 (1st Cir. 1997) (agencies often are allowed through rulemaking to 

regulate beyond the express substantive directives of the statute, so long as the 

statute is not contradicted). 

¶23 We find nothing in 5 U.S.C. § 8151 explicitly prohibiting the provision of 

restoration rights to partially recovered individuals, and we disagree with the 

agency’s argument that statutory language regarding restoration to the “former” 

or “equivalent” position must be read to preclude OPM from affording restoration 

rights to individuals who are unable to perform the essential functions of their 

former positions. Latham PFR File, Tab 44 at 15-16. Section 8151(b)(2) itself 

provides for restoration through a reemployment priority mechanism – a process 

which may result in restoration to a position that is not even arguably 

“equivalent” to the former one. See generally 5 C.F.R. §§ 302.303, 330.202 

(regulations governing reemployment priority in the excepted and competitive 

services respectively).16 We cannot find OPM’s regulations contrary to statute on 

the basis that they provide restoration rights to individuals who have not 

recovered sufficiently to perform in their former positions where the statute itself 

provides for restoration through a mechanism that does not necessarily require 

recovery to such an extent. See 5 U.S.C. § 8151(b). It would make little sense to 

require an injured employee to have recovered sufficiently to perform the duties 

of his former position in order to be eligible for restoration to a position that 

might have different physical requirements. In any event, although 5 U.S.C. 

§ 8151 does not expressly mention partially recovered individuals, we find it 

significant that Congress has not amended FECA in light of OPM’s (and the Civil 

Service Commission’s) longstanding extensions of rights to partially recovered 

 

16 Even at the time 5 U.S.C. § 8151 was enacted, placement on a reemployment priority 

list could have resulted in an appointment to a position that was lower graded or 

otherwise not strictly “equivalent” to the former one. See 5 C.F.R. §§ 302.303, 

302.304, 330.201 (1968). 
20

individuals, thereby indicating Congressional approval of OPM’s interpretation of 

the statute. See Zenith Radio Corp. v. United States, 437 U.S. 443, 450 (1978) (a 

longstanding and consistent administrative interpretation is entitled to 

considerable weight). 

¶24 Furthermore, the statute’s legislative history supports our conclusion that 

FECA does not preclude OPM’s regulatory extension of Board appeal rights to 

partially recovered individuals. In particular, it provides that “the Civil Service 

Commission is authorized to promulgate regulations covering the rights of 

employees whos[e] injuries or disabilities are partially overcome, as well as those 

who have fully overcome their disabilities.” S. Rep. No. 93-1081 at 4 (1974), 

reprinted in 1974 U.S.C.C.A.N. 5341, 5344. That history further confirms that 

OPM’s regulations are consistent with the purpose of 5 U.S.C. § 8151, i.e., to 

ensure that “injured or disabled employees of all covered departments and 

agencies, including those of the United States Postal Service, be treated in a fair 

and equitable manner.” S. Rep. No. 93-1081 at 1 (1974), reprinted in 1974 

U.S.C.C.A.N. 5341. Our holding also comports with the well-established canon 

of statutory construction that remedial statutes should be broadly construed in 

favor of those whom they are meant to protect. See Weed v. Social Security 

Administration, 107 M.S.P.R. 142, ¶ 8 (2007). 

¶25 The agency also contends that the statute prohibits OPM from requiring 

agencies to restore compensably injured individuals to anything other than a 

vacant funded position. Latham PFR File, Tab 18 at 28-30. We recognize that 

the statute speaks in terms of restoration to a “position,” and although the Postal 

Service is not subject to the Civil Service position classification system found in 

5 U.S.C. chapter 51, for the reasons explained above, modified assignments are 

not the equivalent of title 5 “positions.” Supra ¶ 17. Nevertheless, 

notwithstanding its litigation position in this case, we find that the agency itself 

has considered such return to work “restoration” within the meaning of 5 U.S.C. 

§ 8151. See ELM § 546.11 (“The Postal Service has legal responsibilities to 
21

employees with job-related disabilities under 5 U.S.C. 8151 and the OPM 

regulations as outlined below.”). Furthermore, OPM has indicated in its advisory 

opinion that it interprets “restoration” under FECA to include return to duty in a 

modified assignment. Latham PFR File, Tab 30 at 5; see also 5 C.F.R. 

§ 353.301(d) (“light duty” work constitutes restoration). Considering that FECA 

does not affirmatively prohibit restoration to work that does not comprise the 

essential functions of a complete and separate position, and the term “position” is 

not defined anywhere in 5 U.S.C. § 8151(b), we will not second-guess OPM’s 

decision to interpret the term more broadly than it is used in 5 U.S.C. chapter 51. 

¶26 Moreover, we find that this argument poses something of a red herring. As 

explained above, supra ¶ 12, the Board has never interpreted 5 C.F.R. 

§ 353.301(d) itself to require restoration to anything other than a vacant funded 

position. The regulation does, however, as confirmed in OPM’s advisory 

opinion, permit an agency to restore a partially recovered individual to work in 

tasks that do not comprise the essential functions of an established position. 

Latham PFR File, Tab 30 at 5; see 5 C.F.R. § 353.301(d) (describing the 

restoration obligations set forth therein as “minimum” obligations). Pursuant to 

ELM § 546 and EL-505, chapters 7 and 11, the agency has agreed to restore 

partially recovered individuals to duty in whatever tasks are available regardless 

of whether those tasks comprise the essential functions of an established position. 

An agency is required to follow its own rules regardless of whether those rules go 

beyond the requirements of government-wide statutes and regulations. See, e.g., 

Vitarelli, 359 U.S. at 545 (1959). OPM has merely given the Board jurisdiction 

to enforce those rules in the context of a restoration appeal. 

¶27 We must disagree with the dissent’s approach to the issue because even if 

the agency’s modified duty provisions could be characterized as “substantive” 

rather than “procedural” in nature, our authority to review the agency’s 

compliance with them stems not from 5 U.S.C. § 7701(c)(2)(A) but from 5 C.F.R. 

§§ 353.301(d) and .304(c) themselves. As OPM explained in its advisory 
22

opinion, section 353.301(d) was intended to require an agency’s adherence to its 

own restoration rules, and section 353.304(c) was intended to vest the Board with 

jurisdiction over appeals in which agencies have been alleged to violate those 

rules. See supra ¶ 13. We see nothing to prevent the Board from taking 

jurisdiction over an appeal on this basis. 17

¶28 For these reasons, we find that OPM’s regulations regarding the restoration 

of partially recovered individuals do not conflict with statute. We are therefore 

not compelled by statute to refrain from exercising jurisdiction over appeals 

brought under those regulations. 

¶29 The agency and some of the amici argue, however, that even if the Board 

has jurisdiction as a legal matter over restoration appeals concerning violations of 

the agency’s modified duty rules, the Board should still decline to exercise such 

jurisdiction. They argue that matters related to violations of the ELM and the 

EL-505 are essentially contract disputes, which are better handled through 

negotiated grievance procedures, and that the Board should avoid the possibility 

 

17 Moreover, even if the Board were to decide that it lacks the authority to review 

alleged violations of the agency’s modified duty rules under 5 C.F.R. § 353.304(c), 

such review could nonetheless occur under a constructive suspension theory of the case. 

See McLain v. U.S. Postal Service, 82 M.S.P.R. 526, ¶ 7 (1999) (when an employee 

requests work within his medical restrictions and the agency is bound by policy, 

regulation, or contractual provision to offer available work to the employee but fails to 

do so, his continued absence constitutes a constructive suspension appealable to the 

Board). Although many Postal Service employees lack the right to appeal a 

constructive suspension to the Board, others, such as appellant Latham, who is a 

preference eligible veteran, do have the right to appeal a constructive suspension. 

Latham IAF, Tab 1 at 2; Tab 8 at 125; see generally McCandless v. Merit Systems 

Protection Board, 996 F.2d 1193, 1199 (Fed. Cir. 1993) (describing the categories of 

Postal Service employees who have the right to appeal an adverse action to the Board 

under 5 U.S.C. chapter 75). Of course, in Kinglee v. U.S. Postal Service, 114 M.S.P.R. 

473, ¶¶ 19-22 (2010), we found that the better approach is to adjudicate such 

constructive suspension claims in the context of the comprehensive scheme of 

restoration rights. See United States v. Fausto, 484 U.S. 439 (1988). However, our 

decision in Kinglee does not necessarily foreclose the possibility of a constructive 

suspension claim if the Board is precluded from considering the full scope of an 

appellant’s restoration claim. 
23

of issuing decisions that might conflict with arbitration decisions concerning the 

same issues. Latham PFR File, Tab 18 at 32-34, Tab 44 at 19-22, Tab 45, NALC 

Post-Argument Brief at 2-3; Tr. at 21, 36-38. However, as the agency itself 

points out, Congress established a personnel system for the Postal Service that is 

unique among federal agencies. Latham PFR File, Tab 31 at 16; see generally

Postal Reorganization Act of 1970, Pub. L. No. 91-375, 84 Stat. 719. Among 

other things, Postal Service employees are not covered by the election of 

remedies provisions of 5 U.S.C. § 7121(d), and they have the right to file both a 

grievance and a Board appeal concerning the same agency action. Hall v. U.S. 

Postal Service, 26 M.S.P.R. 233, 236 (1985); see also Anderson v. U.S. Postal 

Service, 109 M.S.P.R. 558, ¶ 4 (2008) (unlike federal employees in title 5 

agencies, a Postal Service employee does not have a right to Board review of an 

arbitration decision because 5 U.S.C. § 7121 does not apply to the Postal 

Service). We do not have discretion to decline consideration of a live 

controversy that is timely filed and within our jurisdiction. Although the 

possibility of inconsistent decisions is heightened by the parallel remedies 

available to Postal Service employees, this concern does not empower us simply 

to summarily refuse to consider appeals from Postal Service employees.18 See 

U.S. Postal Service v. Gregory, 534 U.S. 1, 10 (2001) (although the Board may 

sometimes reach a different conclusion than an arbitrator, this possibility is the 

result of the parallel review structures set forth by statute). We also note that the 

right to a Board appeal is personal to an appellant, whereas the right to grievance 

and arbitration belongs to the union, and the union’s decision on whether to 

pursue a grievance to its conclusion is not entirely within the grievant’s control. 

For the same reasons, we disagree with the agency’s argument that the Board 

 

18 Rather, the Board has historically sought to minimize the possibility of inconsistent 

decisions by deferring to arbitral interpretations of the collective bargaining agreements 

at issue in appeals. See, e.g., Pinegar v. Federal Election Commission, 105 M.S.P.R. 

677, ¶ 47 (2007). 
24

should decline to exercise jurisdiction over these appeals out of concern for 

interfering with the related functions of the Office of Workers’ Compensation 

Programs. Latham PFR File, Tab 18 at 34-35, Tab 44 at 22-23. 

The agency’s modified duty rules provide that it may not discontinue a modified 

assignment unless the duties of that assignment go away or need to be transferred 

to other employees who would otherwise lack sufficient work.

¶30 In order to determine whether the agency has violated its internal 

restoration rules in a given case, we must first determine what those rules 

provide. It appears to be undisputed that the agency’s rules require it to offer 

modified assignments to partially recovered individuals whenever work is 

available and within their medical restrictions. The issue of when work is 

“available,” however, is not entirely clear. It appears that the agency’s practice 

for decades has been to make work available to partially recovered individuals 

under practically all circumstances, even though the plain language of the ELM 

suggests that the right to a modified assignment is not absolute. Compare Latham 

PFR File, Tab 1 at 10 (April 17, 2009 letter from an agency human resources 

official advising a physician that “the Postal Service has limited duty available to 

accommodate ALL RESTRICTIONS, except for total bed rest”) with ELM 

§ 546.142(a) (“The Postal Service must make every effort toward assigning the 

employee to limited duty consistent with the employee’s medically defined work 

limitation tolerance.”) (emphasis added). After reviewing the extensive evidence 

and argument that we have received in these appeals, it appears to us that the 

issue of when a given task is “available” to a partially recovered individual who 

is currently out of work remains unsettled. 

¶31 None of these appeals, however, concerns an individual who was out of 

work at the time the agency denied him restoration. They all concern employees 

who were performing in modified assignments up until the time that the agency 

discontinued them based on the alleged lack of available work. The applicability 

of the agency’s rules in this situation is clear, and they have been applied 
25

consistently in all of the arbitration decisions that we have reviewed. Looking to 

these decisions as guidance, see Pinegar v. Federal Election Commission, 

105 M.S.P.R. 677, ¶ 47 (2007), we find that, under the ELM and the EL-505, the 

agency may discontinue a modified assignment consisting of tasks within an 

employee’s medical restrictions only where the duties of that assignment no 

longer need to be performed by anyone or those duties need to be transferred to 

other employees in order to provide them with sufficient work, Tr. at 25-27, 

32-33, 51-52, 57; see In re Arbitration between U.S. Postal Service and National 

Association of Letter Carriers, Case No. E06N-4E-C 09370199, 32, 35 (2010) 

(Eisenmenger, Arb.); In re Arbitration between U.S. Postal Service and National 

Association of Letter Carriers, Case No. E06N-4E-C 09419348, 6 (2010) (Duffy, 

Arb.); In re Arbitration between U.S. Postal Service and National Association of 

Letter Carriers, Case No. B01N-4B-C 06189348, 17-18 (2010) (LaLonde, Arb.); 

In re Arbitration between U.S. Postal Service and American Postal Workers 

Union, Case No. E06TG-1E-C 07186076, 7 (2010) (Monat, Arb.). We therefore 

overrule Soto v. U.S. Postal Service, 115 M.S.P.R. 95, ¶ 11 (2010), and Hunt v. 

U.S. Postal Service, 114 M.S.P.R. 379, ¶ 11 (2010), to the extent that we found 

that the Postal Service “has the authority to economize its operations by 

consolidating the tasks being performed by limited duty employees and 

reassigning them to the non-limited duty employees who would be otherwise 

performing them.” Although federal agencies may generally retain such 

authority, we find that the Postal Service has adopted rules that severely constrain 

its ability in this regard. Tr. at 24. 

¶32 Given that work is generally fungible, in any particular case, there may be 

some practical problems involved in determining whether the work of a particular 

limited duty assignment has actually “gone away.” For example, there may be 80 

hours worth of rewrapping damaged mail that needs to be performed every week 

at a given facility and divided between two modified duty employees. If 40 hours 

worth of that work goes away, this may require the agency to eliminate one 
26

limited duty assignment.19 OPM’s regulations do not address the issue of how the 

agency must deal with competing restoration rights in this situation, and we find 

that the agency is free to handle the matter as it sees fit as long as it does not 

violate any law, rule, or regulation in doing so.20 There may also arise a situation 

in which some of the work previously performed by non-modified duty 

employees has gone away but the work being performed by modified duty 

employees has not. When faced with the choice between transferring the work of 

modified duty employees to non-modified duty employees or reducing the nonmodified duty employees’ work hours, the agency will likely be authorized to 

transfer the work as long as it does not, for example, violate any contractual 

provisions limiting its authority to combine work in different crafts, occupational 

groups, or levels into one job. See Case No. E06TG-1E-C 07186076, 7 (2010) 

(the agency did not violate the ELM when it discontinued the appellant’s 

modified assignment and assigned his former duties to full-time employees who 

were underburdened because of a decreasing workload); ELM § 546.222 

(modified assignments must not impair the seniority rights of part-time flexible 

employees). 

¶33 Based on the evidence and argument that we have received, we agree with 

the parties and amici that the “availability” of modified work for a given partially 

 

19 It is undisputed that the agency is not required to restore partially recovered 

individuals to “make work” assignments, to featherbedding jobs, or to work performing 

tasks that do not actually need to be done. Tr. at 15. There has been much argument 

from the appellants that the agency is not entitled to require that the work they perform 

be “operationally necessary,” but none of them concedes that the work that they were 

performing was not operationally necessary. The dispute about operational necessity, 

rather than pertaining to whether the agency is required to assign partially recovered 

individuals to unnecessary work, appears to pertain to the issue of whether the agency 

is entitled to economize its operations by taking the appellants’ allegedly necessary 

work and assigning it to other employees. See supra ¶ 31. 

20 There used to be a regulatory provision addressing this issue, but OPM eliminated 

that section on the basis that “conflicting restoration rights should rarely be an issue.” 

5 C.F.R. § 353.305 (1978); 53 Fed. Reg. 857 (Jan. 14, 1988). 
27

recovered individual will be entirely dependant upon the facts and circumstances 

of his particular case, Tr. at 16, 22-23, and we will not attempt to address how the 

agency’s modified duty rules might apply in every possible scenario. 

Nevertheless, based on our understanding of the agency’s rules as described 

above, we find that the following line of inquiry provides an appropriate 

framework for analyzing the instant appeals: (1) Are the tasks of the appellant’s 

former modified assignment still being performed by other employees? (2) If so, 

did those employees lack sufficient work prior to absorbing the appellant’s 

modified duties? (3) If so, did the reassignment of that work violate any other 

law, rule, or regulation, such as the examples explained in paragraph 32 above? 

In this regard, evidence pertaining to general declines in mail volume and 

displacement of non-injured workers will likely be immaterial in the absence of a 

connection between these matters and the availability of the appellant’s former 

job duties or the duties of the employees who absorbed the appellant’s former 

tasks. 

¶34 Although we have looked to arbitration decisions for the purpose of 

interpreting the agency’s modified duty rules, we wish to emphasize that the 

Board is not an arbitrator. When we apply the agency’s modified duty rules, we 

will do so in the context of the procedural and evidentiary framework established 

by our regulations and precedential case law, and we will not enforce these rules 

except as specifically authorized by statute and regulation. For example, 

arbitrators have employed a burden-shifting framework to decide modified duty 

cases. See, e.g. Case No. E06N-4E-C 09370199 at 26-29. The Board does not 

use a burden-shifting approach. In a 5 C.F.R. § 353.304(c) Board appeal, the 

burden of proof remains always with the appellant. See Carlos, 114 M.S.P.R. 

553, ¶ 7. In addition, the Board will not examine whether the agency followed 
28

the “pecking order” for job assignments set forth at ELM § 546.142(a), 21

 or 

whether the agency minimized “any adverse or disruptive impact” in assigning 

modified duty as required by that section because these matters pertain to the 

details and circumstances of a restoration actually accomplished and are therefore 

outside the Board’s jurisdiction.22 See Booker v. Merit Systems Protection Board, 

982 F.2d 517, 519 (Fed. Cir. 1992); 5 C.F.R. § 353.304(c); cf. In re Arbitration 

between U.S. Postal Service and National Association of Letter Carriers, Case 

No. E06N-4E-C 10001623, 8 (2010) (Monat, Arb.). 

¶35 We will now apply the law as set forth above to the facts of each particular 

case.23

Latham v. U.S. Postal Service, MSPB Docket No. DA-0353-10-0408-I-1

¶36 Appellant Latham is a City Carrier for the agency. IAF, Tab 8 at 87. He 

suffered a compensable injury on September 28, 1998, and thereafter worked in a 

modified capacity, most recently in a rehabilitation assignment consisting of 

various supervisory, clerical, and customer service duties. Id. at 45-47, 73, 109. 

On April 27, 2010, the agency discontinued that assignment pursuant to the NRP. 

Id. at 39. 

¶37 The appellant filed a Board appeal and requested a hearing. IAF, Tab 1 at 

3-4. He argued that his modified assignment is still available and that he remains 

capable of performing its duties. IAF, Tab 1 at 4, 6, 9, Tab 4 at 1. The appellant 

 

21 As one arbitrator correctly noted, the term “pecking order” is a rather odd misnomer 

for the process by which the agency must search for work for an individual partially 

recovered employee. In re Arbitration between U.S. Postal Service and National 

Association of Letter Carriers, Case No. G06N-4G-C 10205542, 24 (2011) (Sherman, 

Arb.). It has nothing to do with resolving competing claims for work. Id. 

22 The Board is only concerned with whether the agency actually denied an appellant 

restoration following partial recovery from a compensable injury and whether that 

denial was arbitrary and capricious. 

23 All subsequent record citations in this Opinion and Order refer to the records in the 

appeals indicated in the subheadings. 
29

argued that in discontinuing his modified assignment, the agency violated the 

ELM and committed various prohibited personnel practices. IAF, Tab 1 at 6, Tab 

4 at 1-2, Tab 15 at 2. 

¶38 After a hearing, the administrative judge issued an initial decision denying 

the appellant’s restoration claim on the basis that he failed to prove that the 

denial of restoration was arbitrary and capricious. IAF, Tab 26, Initial Decision 

(ID) at 1, 4-9, 16. Specifically, the administrative judge found the appellant’s 

modified assignment was temporary in nature and that the appellant was not 

entitled to encumber it as a permanent rehabilitation assignment. ID at 9. She 

further found that the appellant failed to identify any vacant positions within the 

local commuting area that comport with his medical restrictions. Id. The 

administrative judge also found that the appellant failed to proffer sufficient 

evidence to support his prohibited personnel practice claims. ID at 9-16. 

¶39 The appellant filed a petition for review, arguing, among other things, that 

the administrative judge erred in failing to consider the materials that he 

submitted regarding the agency’s modified duty obligations under the ELM and 

EL-505. PFR File, Tab 1 at 6; IAF, Tab 20, Ex. O-R, T-U, Z-AA, CC-II. The 

agency has filed a response, addressing the appellant’s arguments and arguing 

that the petition should be denied for failure to meet the Board’s review criteria. 

PFR File, Tab 4 at 11-21. 

¶40 In this appeal, the record shows that the appellant’s most recent modified 

assignment was classified “204b Closing Supervisor,” although he could not 

perform all of the functions of such an assignment. 24 Hearing Compact Disc 

(HCD) (testimony of the appellant), (testimony of Customer Service Manager Jay 

Lewter). Assignments under the agency’s “204b” program are not intended to be 

 

24 It appears that the “204b” designation comes from section 204(b) of the Postal Field 

Service Compensation Act of 1955, Pub. L. No. 84-68, 69 Stat. 88, which authorized 

the agency to temporarily assign its employees, without a change in compensation, 

duties and responsibilities other than those of their official positions. 
30

permanent; they are temporary assignments designed to introduce craft employees 

to supervisory and management opportunities. HCD (testimony of Mr. Lewter); 

National Agreement between the National Association of Letter Carriers and the 

U.S. Postal Service, Article 41.1.A.2. There was conflicting testimony as to 

whether the appellant’s modified assignment consisted of duties sufficient to 

occupy him for all of the hours that he was working. HCD (testimony of the 

appellant), (testimony of Postmaster James Chambers). There was also 

conflicting testimony as to who took over the appellant’s former duties when the 

agency discontinued his assignment. The appellant testified that the agency 

replaced him with another newly minted 204b employee, but Mr. Lewter testified 

that the appellant’s duties were absorbed by the existing supervisors who would 

otherwise have been performing them. HCD. 

¶41 As an initial matter, we find it immaterial that the appellant’s modified 

assignment did not consist of the essential functions of an established position. 

The agency’s rules obligate it to offer modified assignments when the work is 

available regardless of whether the duties constitute those of an established 

position. Case No. E06N-4E-C 09370199 at 16; ELM § 546.222; EL-505 § 11.7; 

see supra ¶ 26. We also find it immaterial that 204b assignments are intended to 

be temporary in nature. The authority that the agency invoked in order to afford 

the appellant his modified assignment does not change the fact that it was, 

indeed, a modified assignment afforded under the provisions of ELM § 546 and 

EL-505, ch. 11. IAF, Tab 8 at 73. The agency can revoke such an assignment 

only under limited circumstances. See supra ¶¶ 31-32. 

¶42 In this case, we find that the appellant has established that those 

circumstances are not present. There is no evidence to show that the duties of the 

appellant’s modified assignment have gone away. In fact, the record shows that 

those duties are still being performed by other employees. HCD (testimony of the 

appellant), (testimony of Mr. Lewter). There is some evidence that there was a 

lack of work for Clerk Craft employees at the time the agency discontinued the 
31

appellant’s modified assignment, as these employees were undergoing 

“excessing” pursuant to Article 12 of the National Agreement Between the 

American Postal Workers Union and the U.S. Postal Service. HCD (testimony of 

Health and Resource Management Specialist Denise Lisenbe). However, there is 

no evidence that any of the appellant’s duties were absorbed by Clerk Craft 

employees or that the lack of work in the Clerk Craft otherwise affected the 

availability of work for the appellant. Rather, as explained above, the record 

shows that the appellant’s former duties were absorbed by supervisory 

employees, and there is no evidence that these employees otherwise lacked 

sufficient work. For these reasons, we find that the appellant has established by 

preponderant evidence the discontinuation of his modified assignment violated 

the agency’s rules regarding its modified duty obligations. We therefore find that 

the denial of restoration was arbitrary and capricious. 

¶43 Regarding the appellant’s claims of disability discrimination, age 

discrimination, discrimination under the Uniformed Services Employment and 

Reemployment Rights Act of 1994, and violations of his veterans’ preference 

rights, for the reasons explained in the initial decision, we agree with the 

administrative judge that the appellant failed to prove these claims. 25 ID at 9-16. 

We have reviewed the remainder of the appellant’s arguments on petition for 

review regarding the administrative judge’s evidentiary rulings and handling of 

the appeal, and we find them to be without merit. PFR File, Tab 1 at 3, 6. 

 

25 Although the agency’s basic restoration obligation under 5 C.F.R. § 353.304(c) is 

more or less coextensive with the Rehabilitation Act, it is not entirely the same. See 

Sanchez, 114 M.S.P.R. 345, ¶¶ 16-18. Therefore, a violation of one does not 

necessarily entail a violation of the other. This is particularly true in the case of the 

Postal Service, whose restoration obligations go beyond the requirements of the 

Rehabilitation Act to the extent that they mandate the creation of modified assignments. 

Cf. Marino v. Office of Personnel Management, 243 F.3d 1375, 1377 (Fed. Cir. 2001) 

(permanent assignment to light duties is not an accommodation allowing an employee to 

perform the essential functions of his position). 
32

Turner v. U.S. Postal Service, MSPB Docket No. SF-0353-10-0329-I-1

¶44 Appellant Turner is a Mail Processing Clerk for the agency. IAF, Tab 6, 

Subtab E. She suffered a compensable injury on February 22, 2000, and 

thereafter began working in a modified capacity, most recently in a limited duty 

assignment performing various mail scanning duties. Id., Subtabs 4K, 4M. On 

November 30, 2009, the agency discontinued that assignment pursuant to the 

NRP. Id., Subtab 4B. 

¶45 The appellant filed a Board appeal and requested a hearing. IAF, Tab 1 at 

3. She alleged, among other things, that her former duties are still being 

performed by other employees and that the agency committed disability 

discrimination. IAF, Tab 1 at 5, Tab 8 at 5, Tab 21 at 4-5. 

¶46 After a hearing, the administrative judge issued an initial decision denying 

the appellant’s restoration claim on the basis that the appellant failed to establish 

that the agency’s action was arbitrary and capricious. IAF, Tab 23 (ID) at 2, 27, 

32. The administrative judge found that there was nothing in the ELM to prohibit 

the agency from assigning the appellant’s former tasks to other employees as part 

of their regular bid positions and that the agency did not act arbitrarily and 

capriciously in doing so. ID at 22-27. He also found that the appellant failed to 

prove her disability discrimination claim. ID at 27-31. 

¶47 The appellant has filed a petition for review, among other things repeating 

her argument that the agency offered modified assignments to other injured 

employees in the same section after sending her home. PFR File, Tab 1 at 1-3. 

The agency has filed a response, arguing that the petition should be denied for 

failure to meet the Board’s review criteria. PFR File, Tab 3. 

¶48 The record in this case shows that the appellant’s modified duty tasks 

included casing mail and scanning mail container tracking labels in the 

Automation unit. IAF, Tab 6, Subtab K; Hearing Transcript (Tr.) at 6-13 

(testimony of the appellant). These, however, were sub-duties of the appellant’s 

Automation bid assignment. Tr. at 78-79 (testimony of agency employee 
33

Deborah Mealy), 106, 118-19 (testimony of Manager of Distribution Operations 

Glenn Gray). The appellant’s core duties involved operating mail processing 

equipment, and it is undisputed that she was unable to perform those duties. IAF, 

Tab 18 at 8; Tr. at 27-28 (testimony of the appellant), 119 (testimony of Mr. 

Gray). After the agency discontinued the appellant’s modified assignment, other 

employees in the Automation unit began performing her former tasks as part of 

their bid assignments. Tr. at 9, 42 (testimony of the appellant), 56-57 (testimony 

of Ms. Mealy), 91 (testimony of Manager of Distribution Operations Michael 

McDaniel). 

¶49 As with appellant Latham, we find it immaterial that appellant Turner’s 

modified assignment did not consist of the essential functions of an established 

position. See supra ¶¶ 26, 41. We also find that there is no evidence to show that 

the duties of the appellant’s modified assignment have gone away. Although 

there was testimony to show that mail volume in the appellant’s facility has 

declined in general, Tr. at 88, 96-97 (testimony of Mr. McDaniel), 119-20 

(testimony of Mr. Gray), there is no evidence that there is insufficient work for 

the employees who would normally be performing the tasks of the appellant’s 

limited duty assignment. In fact, the record shows that those duties are still being 

performed by other employees and that those employees are not even able to 

cover all of the work during their regular tours of duty. ID at 26; Tr. at 59 

(testimony of Ms. Mealy), 83-87, 92, 97-98 (testimony of Mr. McDaniel), 103-04 

(testimony of Mr. Gray). For these reasons, we find that the appellant has 

established that the discontinuation of her modified assignment violated the 

agency’s rules regarding its modified duty obligations. We therefore find that the 

denial of restoration was arbitrary and capricious. 

¶50 For the reasons explained in the initial decision, we agree with the 

administrative judge that the appellant failed to prove her disability 

discrimination claim. ID at 27-31. In particular, we agree with the 

administrative judge that the creation of a unique position to fit an individual’s 
34

medical restrictions is not a reasonable accommodation required by the 

Rehabilitation Act. ID at 29-30; see Green, 47 M.S.P.R. at 668. We have 

reviewed the remainder of the appellant’s arguments on review regarding the 

administrative judge’s rulings on witnesses and the NRP in general, and we find 

nothing in them to show that the administrative judge erred in his ruling on the 

disability discrimination claim. PFR File, Tab 1 at 1-3. 

Reaves v. U.S. Postal Service, MSPB Docket No. CH-0353-10-0823-I-1

¶51 Appellant Reaves is a Mail Processing Clerk for the agency. IAF, Tab 12 

at 172. She suffered a compensable injury on February 10, 1990, and thereafter 

began working in a modified capacity, most recently in a rehabilitation 

assignment repairing damaged mail and processing mail to be returned to sender. 

Id. at 174. On June 25, 2010, the agency discontinued that assignment pursuant 

to the NRP. Id. at 60. 

¶52 The appellant filed a Board appeal and requested a hearing. IAF, Tab 1 at 

2, 4. She alleged that the agency failed to follow the NRP’s procedures correctly, 

id. at 3-4, and that the agency failed to conduct a sufficient job search, IAF, Tab 

6 at 2-3, Tab 15 at 1-2, Tab 20 at 1-2, 6. The appellant also alleged that the 

agency’s action was based on disability discrimination and retaliation for 

protected equal employment opportunity activity, IAF, Tab 1 at 3-4, Tab 13 at 1-

4, Tab 20 at 2-6, and that the NRP is invalid per se, IAF, Tab 13 at 4-5, Tab 15 at 

2, Tab 20 at 5-7. 

¶53 Having afforded the appellant proper notice of her jurisdictional burden 

and of the need to make nonfrivolous allegations in order to receive her requested 

hearing, IAF, Tab 2 at 2-3, Tab 19 at 3-4, the administrative judge issued an 

initial decision dismissing the appeal for lack of jurisdiction without a hearing on 

the basis that the appellant failed to make a nonfrivolous allegation that the 

denial of restoration was arbitrary and capricious, IAF, Tab 30 (ID) at 1-2, 6. 

The administrative judge found that the appellant did not have an unconditional 

right to remain in her modified assignment, ID at 4-5, that the agency conducted a 
35

sufficient search for alternative work when it discontinued the assignment, and 

that the appellant failed to identify any vacant funded positions in the local 

commuting area within her medical restrictions, ID at 5-6. Having found that the 

appellant failed to establish jurisdiction over her appeal, the administrative judge 

declined to consider her retaliation and disability discrimination claims. ID at 6. 

¶54 The appellant filed a petition for review, challenging the validity of the 

NRP per se and arguing that the administrative judge erred in finding that her 

right to restoration was limited to vacant funded positions. PFR File, Tab 1. The 

agency filed no response apart from the briefing relating to the legal issues in the 

consolidated appeals. 

¶55 For the reasons explained above, we agree with the appellant that her 

restoration right is not limited to vacant funded positions. Supra ¶ 26. However, 

we also agree with the administrative judge that the appellant’s right to a 

modified assignment is not absolute but is conditioned on the availability of work 

within her medical restrictions. ID at 4-5; see supra ¶¶ 31-32. The appellant in 

this case made no allegation that the tasks of her modified assignment are still 

being performed by other employees or that they have otherwise not gone away. 

The appellant also failed to identify any other tasks within her medical 

restrictions that might have been available for her to perform either inside or 

outside the context of a vacant funded position. As explained above, the 

appellant bears the burden of proof on this matter. Supra ¶ 34. 

¶56 As for the sufficiency of the agency’s job search, we agree with the 

administrative judge’s finding that there is no indication in the record that the 

search was insufficient geographically. 26 ID at 5-6; IAF, Tab 17; cf. Urena v. 

 

26 The agency stated in the letter discontinuing the appellant’s rehabilitation assignment 

that it had conducted a job search “throughout the Local Commuting Area . . . within 

the District Boundaries.” IAF, Tab 12 at 60. Based on this statement, the appellant 

alleged that the agency’s search was insufficient geographically, IAF, Tab 6 at 2; see 

Sanchez, 114 M.S.P.R. 345, ¶ 14 (evidence that the agency’s job search was limited to a 

single Postal district constituted a nonfrivolous allegation that the denial of restoration 
36

U.S. Postal Service, 113 M.S.P.R. 6, ¶ 13 (2009) (evidence that the agency failed 

to search the commuting area as required by 5 C.F.R. § 353.301(d) constitutes a 

nonfrivolous allegation that the agency acted arbitrarily and capriciously in 

denying restoration). We have considered the appellant’s argument that the job 

search was illusory in light of the large number of job searches that the agency 

was conducting simultaneously. IAF, Tab 15 at 2. However, we find that there 

is nothing to prevent the agency from conducting its job searches in such a 

manner, and we are not convinced that conducting job searches one at a time 

would increase the likelihood of locating available work for partially recovered 

individuals in the aggregate. 

¶57 We have also considered the appellant’s challenges to the validity of the 

NRP per se, and we find that they do not constitute a nonfrivolous allegation that 

the denial of restoration in this case was arbitrary and capricious. The issue 

before the Board is not whether the NRP itself was arbitrary and capricious or 

otherwise invalid. See Barachina v. U.S. Postal Service, 113 M.S.P.R. 12, ¶ 7 

(2009) (the appellant’s challenge to the NRP in general did not constitute a 

nonfrivolous allegation that the agency acted arbitrarily and capriciously in her 

particular case). The Board decides particular cases and controversies; we are not 

a review panel to sit in judgment of the validity of agency programs and 

initiatives. See 5 U.S.C. § 1204(a)(1). We therefore make no finding on the 

validity of the NRP as written or as applied. Our decision is limited to the 

question of whether the agency’s application of the NRP resulted in an arbitrary 

 

was arbitrary and capricious), but she later appeared to abandon this position based on 

the agency’s subsequent submissions, IAF, Tab 15 at 1-2. The administrative judge 

appears to have found no dispute of material fact regarding the geographical sufficiency 

of the job search, ID at 5-6 & n.2., and the appellant has not challenged this finding on 

petition for review. We therefore find no basis to conclude that the administrative 

judge impermissibly weighed conflicting evidence on this matter in finding that the 

appellant failed to make a nonfrivolous allegation that the job search was deficient. Cf. 

Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994). 
37

and capricious denial of restoration in the instant appeal. For the reasons 

explained above, we find that the appellant has failed to make a nonfrivolous 

allegation that it has. 

¶58 As for the appellant’s allegations of disability discrimination and 

retaliation for prior equal employment opportunity activity, we agree with the 

administrative judge that the Board lacks jurisdiction over such claims per se in 

the absence of an otherwise appealable action. ID at 6; see McDonnell v. 

Department of the Navy, 84 M.S.P.R. 380, ¶ 11 (1999). However, we find that 

the administrative judge should have considered the appellant’s claims in this 

regard to the extent that they pertain to the jurisdictional issue. Cf. Garcia v. 

Department of Homeland Security, 437 F.3d 1322, 1341 (Fed. Cir. 2006) (at the 

jurisdictional stage of an involuntary retirement appeal, the Board will consider 

allegations of discrimination to the extent that they bear on the issue of 

voluntariness); Markon v. Department of State, 71 M.S.P.R. 574, 578 (1996) 

(same). For the same reason that a denial of restoration based on a violation of 

an agency’s own restoration rules is arbitrary and capricious within the meaning 

of 5 C.F.R. § 353.304(c), we find that a denial of restoration based on prohibited 

discrimination or reprisal for protected activity is also arbitrary and capricious. 27 

¶59 Nevertheless, we find that the appellant in this case failed to make a 

nonfrivolous allegation that the denial of restoration was based on discrimination 

or reprisal. Specifically, the fact that the appellant had equal employment 

opportunity complaints pending when the agency discontinued her assignment 

does not give rise to an inference of retaliatory motive in light of the fact that 

 

27 The administrative judge characterized the appellant’s disability discrimination claim 

as an “affirmative defense.” IAF, Tab 10 at 1. We think that the concept of an 

“affirmative defense” fits better in matters such as adverse action appeals where the 

agency bears the burden of proof on the merits. In restoration appeals, claims of 

discrimination and reprisal are better understood as independent claims or alternative 

ways for an appellant to show that the denial of restoration was arbitrary and 

capricious. 
38

“almost all” similarly situated individuals were subjected to similar actions, as 

the appellant herself stated. IAF, Tab 15 at 2. In addition, the agency’s decision 

not to accommodate the appellant’s medical condition by creating a unique 

position for her does not give rise to an inference of disability discrimination 

because the Rehabilitation Act does not require such accommodations. See 

Green, 47 M.S.P.R. at 668. Therefore, even considering the appellant’s 

allegations of disability discrimination and reprisal for protected equal 

employment opportunity activity, we find that she has failed to make a 

nonfrivolous allegation that the denial of restoration was arbitrary and capricious 

so as to entitle her to a jurisdictional hearing. See Bledsoe, 659 F.3d at 1106. 

Lundy v. U.S. Postal Service, MSPB Docket No. AT-0353-11-0369-I-1

¶60 Appellant Lundy is a Mail Processing Clerk for the agency. IAF, Tab 6 at 

38. She suffered a compensable injury on December 19, 1997, and thereafter 

began working in a modified capacity, most recently in a limited duty assignment 

in the “Resource Activation Room,” apparently performing a number of customer 

service functions. IAF, Tab 1 at 6, Tab 6 at 57, 65. On September 23, 2010, the 

agency discontinued that assignment pursuant to the NRP. IAF, Tab 6 at 34. 

¶61 On January 26, 2011, the appellant filed a Board appeal and requested a 

hearing. IAF, Tab 1 at 2. She appeared to indicate that she was challenging an 

Office of Workers’ Compensation Programs (OWCP) determination not to award 

her benefits for the period that she was out of work pursuant to the agency’s NRP 

determination. Id. at 3. The appellant also indicated on her appeal form that she 

had filed a grievance on the matter, and she attached a copy of the grievance, 

which pertained to the agency’s decision to discontinue her limited duty 

assignment. Id. at 3, 5-13. As reflected in the grievance, the union alleged that 

there is still work available for the appellant to do, including repairing damaged 

mail and flats. Id. at 7. The union also challenged the validity of the NRP in 

general and argued that the agency’s action constituted disability discrimination. 

Id. at 7-12. 
39

¶62 The agency moved to dismiss the appeal for lack of jurisdiction on the 

basis that it had conducted a proper job search and the appellant failed to identify 

any vacant funded positions within her medical restrictions. IAF, Tab 6 at 13-18, 

Tab 8 at 4-5. The administrative judge issued a show cause order, notifying the 

appellant of her burden of establishing jurisdiction over a restoration appeal as a 

partially recovered individual and ordering her to file evidence and argument on 

the issue. IAF, Tab 7. The appellant did not file a response. 

¶63 The administrative judge then issued an initial decision dismissing the 

appeal for lack of jurisdiction without a hearing. IAF, Tab 9 (ID) at 1, 6. The 

administrative judge found that the appellant failed to make a nonfrivolous 

allegation that the denial of restoration was arbitrary and capricious because she 

failed to allege that the agency’s job search was inadequate or did not encompass 

the local commuting area. ID at 5-6. 

¶64 The appellant filed another initial appeal form, which the Board docketed 

as a petition for review in the instant appeal. PFR File, Tab 1 at 2-5. The 

appellant again challenges OWCP’s determination not to award her compensation 

and argues that the agency committed disability discrimination. Id. at 4. She has 

filed another copy of the grievance form that she filed below. Id. at 11-19. The 

agency has filed a response, arguing that the appellant lacks support for her case 

and that the petition should be denied for failure to meet the Board’s review 

criteria. PFR File, Tab 3. 

¶65 In this case, we agree with the administrative judge that there is no 

indication in the record that the agency’s job search was inadequate 

geographically. ID at 5-6; cf. Urena, 113 M.S.P.R. 6, ¶ 13 (evidence that the 

agency failed to search the local commuting area as required by 5 C.F.R. 

§ 353.301(d) constitutes a nonfrivolous allegation that the agency acted 

arbitrarily and capriciously in denying restoration). We also find nothing in the 

record to show that the appellant’s former Resource Activation Room duties 

continue to be performed by other employees or that the agency otherwise acted 
40

improperly in discontinuing the appellant’s modified assignment. We further find 

that the appellant’s challenges to the NRP in general do not constitute a 

nonfrivolous allegation that the agency’s application of the NRP resulted in an 

arbitrary and capricious denial of restoration in her particular case. See supra

¶ 57. We have reviewed the appellant’s rather conclusory allegations of 

disability discrimination, and we find that they do not constitute a nonfrivolous 

allegation that the denial of restoration was arbitrary and capricious for being 

discriminatory in nature. To the extent that the appellant is challenging OWCP’s 

determination not to award her compensation, we find that the Board lacks 

jurisdiction over this claim. See Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, 

¶ 4 (2005). 

¶66 However, we find that the appellant made a nonfrivolous allegation that the 

denial of restoration was arbitrary and capricious when she identified particular 

tasks within her medical restrictions and alleged that they are available for her to 

perform. IAF, Tab 1 at 7. It is immaterial that these tasks do not comprise the 

essential functions of a vacant funded position. The agency is obligated to 

provide the appellant with work in the form of a modified assignment as long as 

that work is available and within her medical restrictions, regardless of whether it 

comprises the essential functions of any established position. See supra ¶ 26; cf. 

Gilbert v. Department of Justice, 100 M.S.P.R. 375, ¶ 16 (2005) (the appellant 

made a nonfrivolous allegation that the denial of restoration was arbitrary and 

capricious when he identified vacant funded positions, the tasks of which he 

alleged he could perform). Although the appellant presented scant evidence in 

support of her claim, she is not required to make her entire case at the 

nonfrivolous allegation stage, and we find that her pleadings are sufficient to 

establish a justiciable issue of material fact that can only be resolved after a 

jurisdictional hearing. 

¶67 We note that there appears to be an issue of timeliness in this appeal. 

Specifically, the agency action at issue took place on September 23, 2010, and the 
41

appellant received notice of the action on the same day. IAF, Tab 6 at 34. 

Therefore, her January 26, 2011 appeal appears to have been filed outside the 

30-day filing period set forth in 5 C.F.R. § 1201.22(b). Nevertheless, there is no 

indication in the record that the agency notified her of her Board appeal rights 

and the time limit for filing as required by 5 C.F.R. § 1201.21(a). See Hudson v. 

Office of Personnel Management, 114 M.S.P.R. 669, ¶ 8 (2010) (if an agency 

failed to notify an appellant of her Board appeal rights when it should have done 

so, the appellant must show that she was diligent in filing her appeal after she 

actually learned of her Board appeal rights). In addition, it appears that the 

appellant timely requested equal employment opportunity counseling after the 

agency discontinued her limited duty assignment, and on December 2, 2010, the 

agency notified her that there was no resolution and that she could either file a 

formal equal employment opportunity complaint or a Board appeal.28 PFR File, 

Tab 1 at 8. This document, however, likewise failed to apprise the appellant of 

the applicable time limit for filing with the Board. Id. Because we are unable to 

resolve the timeliness issue on the existing record, the administrative judge 

should address the matter on remand after affording the appellant the required 

notice and an opportunity to file evidence and argument on the issue. See Wright 

v. Department of Transportation, 99 M.S.P.R. 112, ¶ 12 (2005) (an appellant is 

entitled to clear notice of the precise timeliness issue and a full and fair 

opportunity to litigate it). 

Albright v. U.S. Postal Service, MSPB Docket No. DC-0752-11-0196-I-1

¶68 Appellant Albright is a Custodial Laborer for the agency. IAF, Tab 4, 

Subtab 4A. She suffered compensable injuries on April 17, 1996, and 

September 27, 2004, and thereafter worked in a modified capacity, most recently 

 

28 Because this document is not a “final decision” pursuant to a “formal complaint of 

discrimination,” the filing provisions of 5 C.F.R. § 1201.154(b) are not implicated. 

PFR File, Tab 1 at 8-9. 
42

in a limited duty assignment performing the usual tasks of her official position, 

but with certain restrictions. Id., Subtab 4G at 1461, 1477, 1488. On 

September 23, 2010, the agency discontinued that assignment pursuant to the 

NRP. IAF, Tab 4, Subtab 4B. 

¶69 The appellant filed a Board appeal and requested a hearing. IAF, Tab 1 at 

3-4. She argued that the NRP is invalid per se, IAF, Tab 1 at 6, Tab 7 at 5-7, Tab 

10 at 7, and that the agency’s action constituted disability discrimination, IAF, 

Tab 1 at 8-9, Tab 7 at 5-7, Tab 10 at 6, 8-9. The appellant also alleged that she 

was able to work her bid job with only minor accommodations, that there is 

plenty of work for her to do, that other employees are now performing the tasks 

of her former limited duty assignment, and that those employees now need to 

work overtime in order to complete their own work plus the work that the 

appellant used to do. IAF, Tab 1 at 9, Tab 7 at 6-7, Tab 10 at 5-7. 

¶70 The appellant filed a motion to compel, seeking, among other things, 

evidence that her duty station is currently understaffed with custodial workers 

and that the tasks of her former limited duty assignment are now being performed 

by others. IAF, Tab 11 at 4-9. The administrative judge denied the appellant’s 

motion on the bases that it sought information that is already in the record or is 

immaterial to the jurisdictional issue and that it failed to meet the Board’s 

regulatory requirements. IAF, Tab 13. 

¶71 The administrative judge issued an initial decision dismissing the appeal 

for lack of jurisdiction without a hearing on the basis that the appellant failed to 

make a nonfrivolous allegation that the denial of restoration was arbitrary and 

capricious.29 IAF, Tab 14 (ID) at 1, 12-13. The administrative judge rejected the 

 

29 The administrative judge afforded the appellant inadequate jurisdictional notice. The 

order on jurisdiction apprised the appellant of the jurisdictional standard set forth in 

As’Salaam v. U.S. Postal Service, 85 M.S.P.R. 76, ¶ 14 (2000), and Besemer v. U.S. 

Postal Service, 77 M.S.P.R. 260, 264 (1998), which standard does not include the 

jurisdictional element that the administrative judge found to be dispositive in this 

appeal. Although the Board never explicitly overruled As’ Salaam and Bessemer, it has 
43

appellant’s challenges to the validity of the NRP per se. ID at 7-8. She found 

that the appellant failed to put forth specific evidence regarding her former job 

duties and what happened to them, and relying on Soto, 115 M.S.P.R. 95, ¶ 11 

and Hunt, 115 M.S.P.R. 379, ¶ 11, she found that there was nothing to prevent the 

agency from eliminating the appellant’s modified assignment and allocating her 

former tasks to other employees. ID at 8-9. The administrative judge also found 

that the appellant failed to identify a vacant funded position to which she could 

have been restored, ID at 9-11, and that there was no indication that the agency’s 

job search was inadequate, ID at 11-12. Having found that the appellant failed to 

establish jurisdiction over the appeal, the administrative judge declined to 

consider the appellant’s disability discrimination claim. ID at 12. 

¶72 The appellant has filed a petition for review, arguing that she was in a 

permanent encumbered bid position when the agency sent her home and that her 

so-called limited duty assignment actually required her to perform the essential 

functions of her position. PFR File, Tab 1 at 4-7. The appellant also disputes the 

administrative judge’s finding that she presented no evidence regarding the 

specific duties of her limited duty assignment and the employees who are now 

performing those duties, and she argues that to the extent that the administrative 

judge required additional proof, she should not have denied her motion to compel. 

PFR File, Tab 1 at 5-6; ID at 8-9; IAF, Tab 10 at 13-19. The agency has filed a 

response, arguing that the appellant is contradicting herself by arguing for the 

first time on review that she was not in a modified assignment. PFR File, Tab 3 

at 13. The agency also argues the administrative judge correctly found that the 

 

overruled other cases for setting forth that same jurisdictional standard. Chen, 97 

M.S.P.R. 527, ¶ 18 (overruling Bennett v. U.S. Postal Service, 94 M.S.P.R. 443 (2003), 

and Chism v. U.S. Postal Service, 85 M.S.P.R. 436 (2000)). On remand, the 

administrative judge should afford the appellant jurisdictional notice as set forth in 

paragraph 10 of this Opinion and Order. See Burgess v. Merit Systems Protection 

Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (an appellant must receive explicit 

information on what is required to establish an appealable jurisdictional issue). 
44

agency is not obligated to offer the appellant work when none exists and that it is 

not obligated to restore the appellant to anything other than a vacant funded 

position. Id. at 14-16. 

¶73 Regarding the motion to compel, we agree with the appellant that at least 

some of the items listed therein appear to be relevant to her case and not included 

elsewhere in the record – particularly items twelve through fifteen. IAF, Tab 11 

at 8-9. However, we also agree with the administrative judge that the appellant’s 

motion does not meet the requirements of 5 C.F.R. § 1201.73(e)(1) because it 

does not contain a statement that the parties have made a good faith effort to 

resolve the discovery dispute on their own or a sworn statement in support of the 

appellant’s assertion that the agency failed to respond to her discovery request. 

IAF, Tab 13 at 2. Therefore, the administrative judge did not abuse her discretion 

in denying the motion even though the appellant was seeking discoverable 

information. See 5 C.F.R. § 1201.74(a) (an administrative judge may deny a 

motion to compel discovery if a party fails to comply with the requirements of 

5 C.F.R. § 1201.73(e)(1)). 

¶74 We agree with the administrative judge that there is nothing in the record 

to suggest that the agency’s job search was insufficient and that the appellant has 

not challenged the sufficiency of the search. ID at 11-12; IAF, Tab 10 at 8, 11. 

We also agree with the administrative judge that the appellant’s challenges to the 

NRP per se do not constitute a nonfrivolous allegation that the denial of 

restoration was arbitrary and capricious in her particular case. ID at 7-8; see 

Barachina, 113 M.S.P.R. 12, ¶ 7. However, we disagree that the appellant failed 

to present any specific evidence regarding her former job duties and what 

happened to them. ID at 8. The appellant made specific factual allegations that 

she used to work routes 202 and 203 at her facility, that other employees are now 

covering those routes, and that those employees are requiring overtime to do so. 

IAF, Tab 7 at 6-7, Tab 10 at 5-7. She also supported her factual allegations with 

documentary evidence showing that routes 202 and 203 continue to be worked 
45

and that her former duties have therefore not gone away. IAF, Tab 10 at 13-19. 

That these duties might not have constituted the essential functions of any 

established position is immaterial. See supra ¶ 26. We find that the appellant’s 

specific factual allegations regarding the continued availability of her former 

tasks constitute nonfrivolous allegations that the agency arbitrarily and 

capriciously denied her request for restoration. The appellant is therefore entitled 

to the jurisdictional hearing that she requested. 

¶75 We also find that the appellant has made allegations of fact that, if proven, 

could establish that the denial of restoration constituted disability discrimination. 

Specifically, the appellant alleges on petition for review that her “limited duty” 

assignment was improperly classified as such because she was actually 

performing the essential functions of her Custodial Laborer position and that the 

modifications to her assignment were actually reasonable accommodations 

allowing her to perform those functions. PFR File, Tab 1 at 4-7; De John v. U.S. 

Postal Service, EEOC DOC 07A20030, 2004 WL 1084818 at *5 (May 10, 2004) 

(the agency committed disability discrimination when it withdrew the reasonable 

accommodation that allowed the appellant to perform the essential functions of 

his position). In order to make a finding on this issue, the administrative judge 

would need to determine what the essential functions of the Custodial Laborer 

position actually are and whether the appellant was performing those functions 

when the agency sent her home. We note that the documentary evidence of 

record concerning the appellant’s modified duty assignment is not necessarily 

inconsistent with her disability discrimination claim. IAF, Tab 4, Subtab 4G at 

1477. 

¶76 We have considered the agency’s argument that the appellant has changed 

her theory of the case on petition for review by arguing for the first time that her 

“modified assignment” consisted of the essential functions of an established 

position. PFR File, Tab 3 at 13; see Banks v. Department of the Air Force, 

4 M.S.P.R. 268, 271 (1980) (the Board will not consider an argument raised for 
46

the first time in a petition for review absent a showing that it is based on new and 

material evidence not previously available despite the party’s due diligence). 

However, we find that the submissions that the appellant filed below, while she 

lacked attorney representation, can be fairly construed to have raised this issue, 

albeit somewhat inartfully. IAF, Tab 7 at 6-7; cf. Smart v. Department of the 

Army, 105 M.S.P.R. 475, ¶ 10 (2007) (a pro se appellant is not required to plead 

the issues with the precision of an attorney). In addition, we find nothing 

“contradictory” about the appellant making arguments in the alternative. See 

Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶ 26 (2011) (an appellant may 

legitimately raise alternative arguments in support of a single claim). Therefore, 

the administrative judge should consider the appellant’s disability discrimination 

claim on remand insofar as it bears on the jurisdictional issue and allow the 

appellant to present relevant evidence and argument at a jurisdictional hearing.30 

ORDER IN LATHAM V. U.S. POSTAL SERVICE, DA-0353-10-0408-I-1

¶77 We ORDER the agency to restore the appellant to his former modified 

assignment effective April 27, 2010. See Kerr v. National Endowment for the 

Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no 

later than 20 days after the date of this decision. 

¶78 We also ORDER the agency to pay the appellant the correct amount of 

back pay, interest on back pay, and other benefits under the Back Pay Act and/or 

Postal Service Regulations, as appropriate, no later than 60 calendar days after 

the date of this decision. We ORDER the appellant to cooperate in good faith in 

the agency’s efforts to calculate the amount of back pay, interest, and benefits 

due, and to provide all necessary information the agency requests to help it carry 

 

30 If the administrative judge finds that the appellant was actually performing the 

essential functions of an established position in the context of her modified assignment, 

she should consider whether the appellant is entitled to the restoration rights of a “fully 

recovered” individual. See 5 C.F.R. §§ 353.102, .301(a)-(b). 
47

out the Board’s Order. If there is a dispute about the amount of back pay, interest 

due, and/or other benefits, we ORDER the agency to pay the appellant the 

undisputed amount no later than 60 calendar days after the date of this decision. 

¶79 We further ORDER the agency to tell the appellant promptly in writing 

when it believes it has fully carried out the Board’s Order and to describe the 

actions it took to carry out the Board’s Order. The appellant, if not notified, 

should ask the agency about its progress. See 5 C.F.R. § 1201.181(b). 

¶80 No later than 30 days after the agency tells the appellant that it has fully 

carried out the Board’s Order, the appellant may file a petition for enforcement 

with the office that issued the initial decision in this appeal if the appellant 

believes that the agency did not fully carry out the Board’s Order. The petition 

should contain specific reasons why the appellant believes that the agency has not 

fully carried out the Board’s Order and should include the dates and results of 

any communications with the agency. 5 C.F.R. § 1201.182(a). 

¶81 For agencies whose payroll is administered by either the National Finance 

Center of the Department of Agriculture (NFC) or the Defense Finance and 

Accounting Service (DFAS), two lists of the information and documentation 

necessary to process payments and adjustments resulting from a Board decision 

are attached. The agency is ORDERED to timely provide DFAS or NFC with all 

documentation necessary to process payments and adjustments resulting from the 

Board’s decision in accordance with the attached lists so that payment can be 

made within the 60-day period set forth above. 

¶82 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)). 
48

ORDER IN TURNER V. U.S. POSTAL SERVICE, SF-0353-10-0329-I-1

¶83 We ORDER the agency to restore the appellant to her former modified 

assignment effective November 30, 2009. See Kerr, 726 F.2d 730. The agency 

must complete this action no later than 20 days after the date of this decision. 

¶84 We also ORDER the agency to pay the appellant the correct amount of 

back pay, interest on back pay, and other benefits under the Back Pay Act and/or 

Postal Service Regulations, as appropriate, no later than 60 calendar days after 

the date of this decision. We ORDER the appellant to cooperate in good faith in 

the agency’s efforts to calculate the amount of back pay, interest, and benefits 

due, and to provide all necessary information the agency requests to help it carry 

out the Board’s Order. If there is a dispute about the amount of back pay, interest 

due, and/or other benefits, we ORDER the agency to pay the appellant the 

undisputed amount no later than 60 calendar days after the date of this decision. 

¶85 We further ORDER the agency to tell the appellant promptly in writing 

when it believes it has fully carried out the Board’s Order and to describe the 

actions it took to carry out the Board’s Order. The appellant, if not notified, 

should ask the agency about its progress. See 5 C.F.R. § 1201.181(b). 

¶86 No later than 30 days after the agency tells the appellant that it has fully 

carried out the Board’s Order, the appellant may file a petition for enforcement 

with the office that issued the initial decision in this appeal if the appellant 

believes that the agency did not fully carry out the Board’s Order. The petition 

should contain specific reasons why the appellant believes that the agency has not 

fully carried out the Board’s Order and should include the dates and results of 

any communications with the agency. 5 C.F.R. § 1201.182(a). 

¶87 For agencies whose payroll is administered by either the National Finance 

Center of the Department of Agriculture (NFC) or the Defense Finance and 

Accounting Service (DFAS), two lists of the information and documentation 

necessary to process payments and adjustments resulting from a Board decision 

are attached. The agency is ORDERED to timely provide DFAS or NFC with all 
49

documentation necessary to process payments and adjustments resulting from the 

Board’s decision in accordance with the attached lists so that payment can be 

made within the 60-day period set forth above. 

¶88 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)). 

NOTICE TO APPELLANTS LATHAM AND TURNER

REGARDING YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney 

fees and costs. To be paid, you must meet the requirements set out at Title 5 of 

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The 

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.203. If 

you believe you meet these requirements, you must file a motion for attorney fees 

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You 

must file your attorney fees motion with the office that issued the initial decision 

on your appeal. 

NOTICE TO APPELLANTS LATHAM AND TURNER 

REGARDING YOUR FURTHER REVIEW RIGHTS

This is the Board's final decision in these matters. 5 C.F.R. § 1201.113. 

You have the right to request further review of this final decision. 

Discrimination Claims: Administrative Review

 You may request the Equal Employment Opportunity Commission (EEOC) 

to review this final decision on your discrimination claims. See Title 5 of the 

United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). You must send 

your request to EEOC at the following address: 

Equal Employment Opportunity Commission 

Office of Federal Operations 

P.O. Box 77960 

Washington, DC 20036 
50

You should send your request to EEOC no later than 30 calendar days after your 

receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time. 

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 

the district court no later than 30 calendar days after your receipt of this order. If 

you have a representative in this case, and your representative receives this order 

before you do, then you must file with the district court no later than 30 calendar 

days after receipt by your representative. If you choose to file, be very careful to 

file on time. 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); 

29 U.S.C. § 794a. 

Other Claims: Judicial Review

If you do not want to request review of this final decision concerning your 

discrimination claims, but you do want to request review of the of the Board’s 

decision without regard to your discrimination claims, you may request the 

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

decision on the other issues in your appeal. You must submit your request to the 

court at the following address: 
51

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 your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with the court 

no later than 60 calendar days after receipt by your representative. 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). You may read 

this law, as well as review the Board’s regulations and other related material, at 

our website, http://www.mspb.gov. 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. 

ORDER IN REAVES V. U.S. POSTAL SERVICE, CH-0353-10-0823-I-1

¶89 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)). 

NOTICE TO APPELLANT REAVES REGARDING

YOUR FURTHER REVIEW RIGHTS

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: 
52

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 your receipt of this order. If you have a representative in this case and your 

representative receives this order before you do, then you must file with the court 

no later than 60 calendar days after receipt by your representative. 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, 931 F.2d 1544. 

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). You may read 

this law, as well as review the Board’s regulations and other related material, at 

our website, http://www.mspb.gov. 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. 

ORDER IN LUNDY V. U.S. POSTAL SERVICE, AT-0353-11-0369-I-1

¶90 We remand this appeal to the regional office for further proceedings 

consistent with this Opinion and Order, including the jurisdictional hearing that 

the appellant requested. 
53

ORDER IN ALBRIGHT V. U.S. POSTAL SERVICE, DC-0752-11-0196-I-1

¶91 We remand this appeal to the regional office for further proceedings 

consistent with this Opinion and Order, including the jurisdictional hearing that 

the appellant requested. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C. 
DFAS CHECKLIST 

INFORMATION REQUIRED BY DFAS IN 

ORDER TO PROCESS PAYMENTS AGREED 

UPON IN SETTLEMENT CASES OR AS 

ORDERED BY THE MERIT SYSTEMS 

PROTECTION BOARD

AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT 

CASES 

CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL 

OFFICE VIA COMMAND LETTER WITH THE FOLLOWING: 

1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address 

and POC to send. 

2. Statement that employee was counseled concerning Health Benefits and TSP and the 

election forms if necessary. 

3. Statement concerning entitlement to overtime, night differential, shift premium, 

Sunday Premium, etc, with number of hours and dates for each entitlement. 

4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay 

System), a statement certifying any lump sum payment with number of hours and 

amount paid and/or any severance pay that was paid with dollar amount. 

5. Statement if interest is payable with beginning date of accrual. 

6. Corrected Time and Attendance if applicable. 

ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:

1. Copy of Settlement Agreement and/or the MSPB Order. 

2. Corrected or cancelled SF 50's. 

3. Election forms for Health Benefits and/or TSP if applicable. 

4. Statement certified to be accurate by the employee which includes: 

 a. Outside earnings with copies of W2's or statement from employer. 

b. Statement that employee was ready, willing and able to work during the period. 

c. Statement of erroneous payments employee received such as; lump sum leave, severance 

pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew 

Retirement Funds. 

5. If employee was unable to work during any or part of the period involved, certification of the 

type of leave to be charged and number of hours. 
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES 

Below is the information/documentation required by National Finance Center to process 

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as 

ordered by the Merit Systems Protection Board, EEOC, and courts. 

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise 

information describing what to do in accordance with decision. 

2. The following information must be included on AD-343 for Restoration: 

 a. Employee name and social security number. 

 b. Detailed explanation of request. 

 c. Valid agency accounting. 

 d. Authorized signature (Table 63) 

 e. If interest is to be included. 

 f. Check mailing address. 

 g. Indicate if case is prior to conversion. Computations must be attached. 

 h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to 

be collected. (if applicable) 

Attachments to AD-343 

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday 

Premium, etc. with number of hours and dates for each entitlement. (if applicable) 

2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and 

amounts. 

3. Outside earnings documentation statement from agency. 

4. If employee received retirement annuity or unemployment, provide amount and address 

to return monies. 

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 

6. If employee was unable to work during any or part of the period involved, certification of 

the type of leave to be charged and number of hours. 

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual 

Leave to be paid. 

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay 

Period and required data in 1-7 above. 

The following information must be included on AD-343 for Settlement Cases: (Lump 

Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) 

 a. Must provide same data as in 2, a-g above. 

 b. Prior to conversion computation must be provided. 

 c. Lump Sum amount of Settlement, and if taxable or non-taxable. 

If you have any questions or require clarification on the above, please contact NFC’s 

Payroll/Personnel Operations at 504-255-4630. 
DISSENTING OPINION OF MARY M. ROSE

in

James C. Latham, et al. v. United States Postal Service 

MSPB Docket Nos. DA-0353-10-0408-I-1, et al. 

¶1 I respectfully dissent. As discussed below, I conclude that a postal 

employee who has partially recovered from a compensable injury and who claims 

entitlement to be restored to limited duties that do not comprise the essential 

functions of a complete and separate position has failed to state a claim upon 

which the Board can grant relief. Because none of the appellants in this 

consolidation sought restoration to duties that comprise the essential functions of 

a complete and separate position, all of these appeals should be dismissed for 

failure to state a claim upon which relief can be granted. I also write to disagree 

with the majority’s findings regarding jurisdiction and to explain why I believe 

that the majority has misinterpreted the phrase “arbitrary and capricious” to mean 

something almost directly contrary to its actual meaning. 

A postal employee who has partially recovered from a compensable injury and 

who claims entitlement to be restored to limited duties that do not comprise the 

essential functions of a complete and separate position has failed to state a claim 

upon which the Board can grant relief.

¶2 Under well-established Board precedent construing 5 C.F.R. part 353, 

which the majority does not dispute, an employee who has partially recovered 

from a compensable injury has no right to be restored to limited duties that do not 

comprise the essential functions of a complete and separate position. Under the 

Postal Service’s Employee and Labor Relations Manual (ELM) and other internal 

rules, an employee who has partially recovered from a compensable injury does 

have a right to be restored to limited duties that do not comprise the essential 

functions of a complete and separate position. Accordingly, the issue is as stated 

in the Board’s Federal Register notice inviting amicus briefs: whether a denial of 

restoration may be “arbitrary and capricious” within the meaning of 5 C.F.R. 
2

§ 353.304(c) solely for being in violation of the agency’s ELM and other internal 

rules. 

The Board has no independent authority to enforce internal agency rules that 

provide substantive rights or entitlements. 

¶3 Although the majority opinion disclaims reliance on the position taken by 

the Office of Personnel Management (OPM) in its advisory opinion, OPM argued 

that the Board has a generalized authority to enforce substantive as well as 

procedural internal agency rules: 

The Supreme Court has recognized that an agency can use its 

discretion to adopt procedures and standards to govern the exercise 

of an underlying legal authority, including adopting more rigorous 

substantive and procedural standards than required by the authority. 

The Court also stated that once an agency implements such 

procedures, however, they are binding and must be followed. 

OPM Advisory Opinion at 3 (citations deleted and emphasis added). 

¶4 All five of the court decisions cited by OPM for these propositions 

involved procedural rules; none involved substantive entitlements or rights.1

 In 

its amicus brief, the National Postal Mail Handlers Union (NPMHU) similarly 

stated that there is a “long line of Board authority . . . holding that the Board will 

enforce employee rights derived from agency rules, regulations, and collective 

bargaining agreements.” As with the cases cited by OPM for this proposition, 

most of the cases cited by the NPMHU involved either procedural rules, e.g., 

Giesler v. Department of Transportation, 3 M.S.P.R. 277, 280 (1980) (procedures 

 

1 See Service v. Dulles, 354 U.S. 363, 373-76, 388 (1957) (procedures to remove an 

employee for disloyalty); Vitarelli v. Seaton, 359 U.S. 535, 539 (1959) (procedural 

standards for dismissing employees on security grounds); Lopez v. Federal Aviation 

Administration, 318 F.3d 242, 247 (D.C. Cir. 2003) (claim that the FAA failed to follow 

its procedures in determining whether to renew an employee’s appointment); Gaballah 

v. Johnson, 629 F.2d 1191, 1202-03 (7th Cir. 1980) (the court addressed whether the 

agency complied with its internal rules to determine whether the employee had the 

requisite property interest to protect in connection with a due process claim); Bates v. 

Sponberg, 547 F.2d 325, 329-30 & nn.6-7 (6th Cir. 1976) (whether a state university 

complied with its procedures in terminating tenured faculty member). 
3

required for meetings between employees and supervisors that may result in 

discipline), aff’d, 686 F.2d 844 (10th Cir. 1982), or available remedies, e.g., 

Campbell v. U.S. Postal Service, 75 M.S.P.R. 273, 279 (1997) (holding that back 

pay is an appropriate remedy). 2

 

¶5 The distinction between procedural rights on the one hand and substantive 

rights on the other is an important one. When the subject is procedural rights, the 

Board does not need the guidance or authority of federal court decisions. A 

provision enacted as part of the Civil Service Reform Act of 1978, 5 U.S.C. 

§ 7701(c)(2)(A), provides that the Board cannot sustain an agency decision if the 

employee “shows harmful error in the application of the agency’s procedures in 

arriving at such decision.” (emphasis added). The “harmful procedural error” 

rule of section 7701(c)(2)(A) describes a situation in which the Board cannot 

sustain an agency action or decision over which it has jurisdiction. When we turn 

our attention from enforcement of agency procedural rules to the substantive 

rights to which employees are entitled, those rights are coterminous with, and 

cannot be extended beyond, matters within the Board’s subject matter 

jurisdiction. Both the Board and its reviewing court have emphasized that the 

 

2

 The NPMHU did cite cases that might be read as treating internal agency rules as 

equivalent to a statutory provision that the Board had jurisdiction to enforce. In Miller 

v. U.S. Postal Service, 105 M.S.P.R. 89, ¶ 11 (2007), Welshans v. U.S. Postal Service, 

107 M.S.P.R. 110, ¶ 7 (2007), aff’d, 550 F.3d 1100 (Fed. Cir. 2008), and Plezia v. 

Department of Veterans Affairs, 102 M.S.P.R. 125, ¶ 10 (2006), the Board stated that it 

will enforce employee rights derived from agency rules, regulations, procedures, and 

collective bargaining agreements, and that the fact that the appellants were not covered 

by 5 U.S.C. § 6323(a), but instead by an equivalent agency rule, did not affect the 

Board’s authority under the Uniformed Services Employment and Reemployment 

Rights Act. The Board was not, however, enforcing a substantive agency rule as if it 

were a statute over which the Board had been given jurisdiction. The substantive rule 

in each of these cases was 38 U.S.C. § 4311(a), which provides that an employer may 

not deny a “benefit of employment” on account of an employee’s obligation to perform 

uniformed service. Section 6323 was relevant only to determine whether the appellant 

had been denied a “benefit of employment” under section 4311. An agency can deny an 

employee a benefit of employment by violating an internal agency rule as well as by 

violating a statute. 
4

Board’s legal authority to review and resolve employment disputes is limited to 

those matters specifically entrusted to it by law, rule, or regulation. E.g. 

Schmittling v. Department of the Army, 219 F.3d 1332, 1136 (Fed. Cir. 2000); 

Caracciolo v. Department of the Treasury, 105 M.S.P.R. 663, ¶ 7 (2007). Unlike 

federal courts, which have ancillary or pendent jurisdiction to hear and decide 

various claims that would not themselves provide a basis for the court to exercise 

jurisdiction, the Board has no ancillary or pendent jurisdiction other than what is 

provided in 5 U.S.C. §§ 7702 (to adjudicate discrimination claims) and 

7701(c)(2) (claims of harmful procedural error, that a decision was based on a 

prohibited personnel practice, or that a decision was not in accordance with law). 

¶6 In an early decision, the Board explained that its jurisdiction cannot be 

enlarged to encompass the adjudication of internal agency rules: 

 In the instant case, appellant’s allegation of procedural error was 

based on an alleged violation of a negotiated agreement rather than 

the provisions of 5 C.F.R. § 315.805. In fact, the record reflects that 

the agency has complied with all the procedural requirements 

imposed by that section. While a collective bargaining agreement 

can increase the procedural entitlements of a probationary employee 

terminated for pre-employment (or post-employment) reasons 

beyond those found in 5 C.F.R., Part 315, those additional safeguards 

do not become organic extensions of those regulations but, rather, 

additional benefits which accrue outside of the appeal right provided 

by 5 C.F.R. § 315.806. Compliance with such additional procedural 

entitlements can only be enforced through the negotiated grievance 

procedure. 

Pogarsky v. Department of the Treasury, 7 M.S.P.R. 196, 198 (1981) (citation 

deleted). 

¶7 Although the current appeals present a fact pattern that is almost the exact 

opposite of what was involved in Pogarsky, the reasoning of that decision 

applies. Pogarsky was a probationary employee who was terminated during her 

probationary period for pre-appointment reasons. Then, as now, the only ground 

for appeal in that situation, and the only matter that could be adjudicated by the 

Board, was whether the agency complied with the procedural requirements of 
5

OPM’s regulation. Accordingly, the merits of the appeal were strictly procedural 

in nature, and the Board rejected the appellant’s attempt to expand the Board’s 

jurisdiction to include additional procedural rights derived from a collective 

bargaining agreement. In the present appeals, by contrast, OPM’s regulations 

provide substantive rights for partially recovered employees, and the agency’s 

internal rules confer additional substantive rights to such employees. The 

governing principle is the same in both situations; the matter entrusted to the 

Board for adjudication—whether procedural or substantive in nature—cannot be 

expanded to include additional matters not provided by federal law or regulation. 

As in Pogarsky, the Postal Service’s additional “restoration” rights “do not 

become organic extensions of [5 C.F.R. § 353.301(d)] but, rather, additional 

benefits which accrue outside of the appeal right provided by [5 C.F.R. 

§ 353.304(c)]. Compliance with such additional [] entitlements can only be 

enforced through the negotiated grievance procedure.” 

OPM’s regulations cannot reasonably be interpreted as including a grant of 

jurisdiction to the Board to adjudicate substantive entitlements conferred by 

internal agency rules. 

¶8 Unlike OPM and the NPMHU, the majority opinion does not claim that the 

Board has any generalized or inherent authority to adjudicate and enforce internal 

agency rules that confer substantive entitlements. The majority instead contends 

that OPM’s regulations, as interpreted by OPM, contain such a grant of 

jurisdiction to the Board to adjudicate and enforce the intra-agency substantive 

entitlements included in the ELM. OPM’s advisory opinion does “interpret” its 

regulations in this manner. The question is whether the Board must or should 

defer to OPM’s interpretation. 

¶9 An agency’s interpretation of its own regulations is entitled to “controlling 

weight unless plainly erroneous or inconsistent with the regulation.” Auer v. 

Robbins, 519 U.S. 452, 461 (1997) (quoting Bowles v. Seminole Rock & Sand 

Co., 325 U.S. 410, 414 (1945)). As a later Supreme Court decision clarified, 
6

however, “Auer deference is warranted only when the language of the regulation 

is ambiguous.” Christensen v. Harris County, 529 U.S. 576, 588 (2000). To 

defer to the agency’s interpretation when the regulation is not ambiguous “would 

be to permit the agency, under the guise of interpreting a regulation, to create de 

facto a new regulation.” Id. 

¶10 In determining whether a regulation is ambiguous, the starting point is to 

examine the text of the regulation to ascertain its plain meaning; a regulation can 

only be said to be ambiguous if the text is “susceptible to more than one plausible 

reading.” American Airlines, Inc. v. United States, 551 F.3d 1294, 1299-1300 

(Fed. Cir. 2008); see also Tesoro Hawaii Corp. v. United States, 405 F.3d 1339, 

1346 (Fed. Cir. 2005) (“[w]e construe a regulation in the same manner as we 

construe a statute, by ascertaining its plain meaning”). The agency’s 

interpretation of its regulation “must be fairly supported by the text of the 

regulation itself, so as to ensure that adequate notice of that interpretation is 

contained within the rule itself.” Drake v. Federal Aviation Administration, 291 

F.3d 59, 68 (D.C. Cir. 2002). “Stated another way, the dispositive question is 

whether imposition of the [] rule is a new rule, in which case the agency may not 

give it binding effect in the absence of compliance with [Administrative 

Procedure Act] notice and comment procedures, or an interpretation of an 

existing rule, in which case it is binding precisely because it has, in effect, 

already been subject to the necessary procedural protections.” Mission Group 

Kansas, Inc. v. Riley, 146 F.3d 775, 782 (10th Cir. 1998). 

¶11 What is the text of the existing regulations that supports OPM’s 

interpretation that the Board has jurisdiction to adjudicate and enforce internal 

agency rules that confer substantive entitlements that go beyond the substantive 

entitlements provided by OPM’s government-wide regulations? The majority 

does not contend that the text of a single regulation supports this interpretation; it 

instead contends that the text of 5 C.F.R. sections 353.101(d) and 353.304(c), 
7

when read in conjunction with one another, support such an interpretation. 

Section 353.301(d) provides as follows: 

Partially recovered. Agencies must make every effort to restore in 

the local commuting area, according to the circumstances in each 

case, an individual who has partially recovered from a compensable 

injury and who is able to return to limited duty. At a minimum, this 

would mean treating these employees substantially the same as other 

handicapped individuals under the Rehabilitation Act of 1973, as 

amended. (See 29 U.S.C. 791(b) and 794.) . . . . 

(emphasis added). 

¶12 Without question, this language permits agencies to promulgate rules that 

confer greater substantive rights than those provided under part 353 and the 

Rehabilitation Act. That agencies have this permissive authority was never in 

question, however; the issue in this case is whether the MSPB has jurisdiction to 

adjudicate and enforce these intra-agency substantive entitlements. There is 

nothing in the language of section 353.301(d) that states, or even implies, that 

OPM is authorizing the MSPB to adjudicate and enforce any such permissive 

entitlements. Indeed, the majority concedes that this regulation, standing alone, 

cannot be interpreted as containing any such grant of jurisdiction. Majority 

Opinion, ¶ 12. The majority contends, however, that when section 353.301(d) is 

read in conjunction with section 353.304(c), which provides that “[a]n individual 

who is partially recovered from a compensable injury may appeal to MSPB for a 

determination of whether the agency is acting arbitrarily and capriciously in 

denying restoration,” the interpretation of an additional grant of jurisdiction 

becomes a reasonable one. 

¶13 When one considers the chronology of the promulgation of the regulatory 

language in these two regulations, the implausibility of such an interpretation 

becomes manifest. As the majority opinion recounts, the grant of authority to the 

Board to determine whether a denial of restoration to a partially recovered 

employee was arbitrary and capricious was promulgated by the Civil Service 

Commission in 1978, and the wording of this regulation has not changed 
8

materially since that time. OPM did not promulgate its regulation stating that 

agencies must comply with the Rehabilitation Act “at a minimum” until 1995. 

60 Fed. Reg. 45,650, 45,657 (1995).3

 A “determination of whether” an agency 

has acted “arbitrarily and capriciously” in denying restoration cannot mean 

something different in 1995 or 2012 than it did in 1978 unless the addition of the 

“at a minimum” provision in 1995 was intended to affect the meaning of the 

“arbitrary and capricious” provision. The record is totally devoid of any evidence 

of such intent. Both OPM and the majority essentially contend that section 

353.301(d) should be interpreted as if it had an extra sentence: “If an agency 

provides more generous substantive rights than are required by this part and the 

Rehabilitation Act, the MSPB shall have jurisdiction to adjudicate and enforce 

such additional rights and entitlements to the same extent as if they were 

contained in a statute or government-wide regulation.” The problem, of course, 

is that the regulation does not say anything like this, nor is such an interpretation 

“fairly supported by the text of the regulation itself.” See Drake, 291 F.3d at 68. 

¶14 The majority frames the issue as “whether OPM’s use of the term ‘arbitrary 

and capricious’ was meant to exclude certain types of erroneous denials of 

restoration from the Board’s jurisdiction.” Majority Opinion, ¶ 15. This 

formulation simply assumes as proven the very matter that is at issue in this case: 

whether a denial of limited duties that do not comprise a complete and separate 

 

3

 OPM’s Federal Register notice did not say anything about why it was adding this 

language to its part 353 regulations. I note that OPM added this “at a minimum” 

provision to its guidance in the Federal Personnel Manual (FPM) much earlier, in 1988. 

See Sapp v. U.S. Postal Service, 73 M.S.P.R. 189, 195 (1997); Leach v. Department of 

Commerce, 61 M.S.P.R. 8, 20 (1994). Informal guidance like the FPM is not entitled to 

Auer deference because it has not been subjected to notice-and-comment rulemaking. 

See Christensen, 529 U.S. at 587. OPM has not provided any evidence to indicate that 

there was any “legislative history” associated with the promulgation of the FPM 

provision in 1988 to indicate that it was added to the FPM for the purpose of granting 

the MSPB jurisdiction to adjudicate and enforce permissive substantive entitlements 

such as those in the ELM. 
9

position constitutes a denial of “restoration” within the meaning of part 353 and a 

matter over which the MSPB has been given jurisdiction. Without question, some 

denials of limited duty assignments under the ELM might be characterized as 

“arbitrary and capricious” in some sense, but the question before us is whether a 

denial of limited duties that do not constitute a complete and separate position is 

a denial of restoration over which the Board has jurisdiction.4

 

¶15 Even if OPM’s regulatory interpretation was otherwise a plausible one, i.e., 

OPM intended to authorize the Board to adjudicate and enforce internal agency 

entitlements that go beyond the requirements of federal law and regulation, this 

cannot be a reasonable interpretation if OPM would have lacked legal authority to 

issue such a regulation in express terms. The reason the question arises is that 

such a regulation would necessarily entail a redelegation of the authority granted 

by Congress to OPM. OPM, after all, did not itself promulgate a rule that 

requires agencies to restore partially recovered employees to duties that do not 

comprise the essential functions of a complete and separate position; that rule 

was promulgated by the Postal Service. The statute, 5 U.S.C. § 8151(b), 

authorizes “regulations issued by the Office of Personnel Management,” and says 

nothing about redelegation of that authority. Although courts have recognized 

the validity of redelegations or subdelegations of rulemaking authority to 

subordinate offices or officials within an agency, they do not generally recognize 

redelegations or subdelegations of authority to persons or entities outside the 

agency: 

 

4

 As discussed more fully below (¶¶ 26-30), the “determination of whether the agency is 

acting arbitrarily and capriciously in denying restoration” cannot reasonably be read as 

being a jurisdictional element at all; it is the dispositive merits issue in a partial 

recovery restoration appeal. The term “arbitrary and capricious” also reflects a 

deferential standard of review when evaluating the agency’s denial of restoration. The 

Board has jurisdiction when an employee who has partially recovered from a 

compensable injury has been denied restoration to duties. That jurisdiction extends, 

however, only to duties that comprise a complete and separate position. 
10

When a statute delegates authority to a federal officer or agency, 

subdelegation to a subordinate federal officer or agency is 

presumptively permissible absent affirmative evidence of a contrary 

congressional intent. But the cases recognize an important 

distinction between subdelegation to a subordinate and subdelegation 

to an outside party. The presumption that subdelegations are valid 

absent a showing of contrary congressional intent applies only to the 

former. There is no such presumption covering subdelegations to 

outside parties. Indeed, if anything, the case law strongly suggests 

that subdelegations to outside parties are assumed to be improper 

absent an affirmative showing of congressional authorization. 

United States Telcom Ass’n v. Federal Communications Commission, 359 F.3d 

554, 565 (D.C. Cir. 2004) (citations deleted). 5 

¶16 Absent express authorization in the relevant statute, I am unaware of any 

authority that would authorize one federal agency, and in particular the agency 

that has primary responsibility for promulgating government-wide rules 

governing federal employment, to redelegate its substantive rulemaking authority 

to other agencies, especially where this would result in the Board taking 

jurisdiction of and adjudicating substantive entitlements that vary from agency to 

agency within the federal government, and where doing so would intrude upon 

the proper sphere of negotiated grievance procedures. Cf. 5 U.S.C. § 1104(a)(2) 

(authorizing the OPM Director to delegate his authority for personnel 

management functions to agency heads in the executive service). Accordingly, 

interpreting the regulations to include a redelegation of substantive rulemaking 

authority that is beyond OPM’s legal authority cannot be a reasonable 

interpretation of the regulations.6

 

 

5

 Although a number of statutory provisions give OPM the authority to promulgate 

regulations that apply throughout the federal government, the agencies to whom those 

rules apply are in no sense subordinate divisions of OPM. 

6

 The majority notes that the Board’s authority to review and declare an agency’s 

regulation invalid is limited to situations in which complying with the regulation would 

require the commission of a prohibited personnel practice. Majority Opinion, ¶ 18. 

This is not an appeal under 5 U.S.C. § 1204(f), and I am not proposing that we find the 
11

¶17 For all the above reasons, if ever there were a case in which it could be 

said that deferring to OPM’s “interpretation” of its regulation “would be to 

permit the agency, under the guise of interpreting a regulation, to create de facto

a new regulation,” this is such a case. 

The appeals must be dismissed for failure to state a claim upon which the 

Board can grant relief. 

¶18 As discussed above, I conclude that the Board lacks the authority to 

adjudicate and enforce a substantive entitlement created by a particular agency 

that applies solely to employees of that agency. The Board has no inherent or 

independent authority to enforce an internal agency rule that confers substantive 

entitlements; OPM’s substantive rule for partially recovered employees applies 

only to duties that comprise the essential functions of a complete and separate 

position; and OPM’s regulations cannot reasonably be interpreted as including a 

grant of jurisdiction to the Board to adjudicate substantive entitlements conferred 

by internal agency rules. Because none of the appellants has claimed entitlement 

to duties that constitute the essential functions of a complete and separate 

position, they have failed to state a claim upon which the Board can grant relief, 

and all of the appeals should be dismissed on that basis. I note that dismissal for 

failure to state a claim is a disposition on the merits. See Alford v. Department of 

Defense, 113 M.S.P.R. 263, ¶ 13 (2010), aff’d, 407 F. App’x 458 (Fed. Cir. 

2011). 

An agency need not be “meticulous” in its decision-making process to avoid 

being “arbitrary and capricious.”

¶19 OPM stated in its advisory opinion that, in order to avoid acting arbitrarily 

and capriciously, an agency must adhere to its substantive restoration obligations 

 

regulation as written to be invalid. It cannot be outside of the Board’s proper sphere to 

ask whether an interpretation of OPM’s regulation would entail a delegation of 

rulemaking authority that is not within OPM’s legal authority, when the purpose of the 

inquiry is to make a determination whether the interpretation is a reasonable one. 
12

and do so “meticulously.” The majority opinion finds that OPM’s interpretation 

of its regulation is consistent with the language of the regulation and is not 

plainly erroneous, and that the Board must therefore defer to it. Majority 

Opinion, ¶ 13. 

¶20 Even under Auer/Seminole Rock deference, we need not give effect to an 

interpretation that is “unreasonable, plainly erroneous, or inconsistent with the 

regulation’s plain meaning.” Midwest Crane and Rigging, Inc. v. Federal Motor 

Carrier Safety Admin., 603 F.3d 837, 840 (10th Cir. 2010) (quoting Lewis v. 

Babbitt, 998 F.2d 880, 882 (10th Cir. 1993)). Each of those terms applies to 

OPM’s interpretation of “arbitrary and capricious.” 

¶21 The dictionary defines “arbitrary” as “arising from unrestrained exercise of 

the will, caprice, or personal preference.” Webster’s Third New International 

Dictionary 110 (1976). It similarly defines “capricious” as “marked or guided by 

caprice: given to changes of interest or attitude according to whim or passing 

fancies: not guided by steady judgment, intent, or purpose.” Id. at 333. By 

contrast, “meticulous” means “marked by extreme painstaking care in the 

consideration or treatment of details.” Id. at 1424. 

¶22 Beyond the ordinary meaning of the individual words, “arbitrary and 

capricious” is a legal term of art in the Administrative Procedure Act, 5 U.S.C. 

§ 706(2). 7 The Supreme Court has stated that an agency action is arbitrary and 

capricious under that Act 

if the agency has relied on factors which Congress has not intended 

it to consider, entirely failed to consider an important aspect of the 

problem, offered an explanation for its decision that runs counter to 

the evidence before the agency, or is so implausible that it could not 

be ascribed to a difference in view or the product of agency 

expertise. 

 

7

 This law authorizes courts to “hold unlawful and set aside agency action, findings, and 

conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law.” 
13

Motor Vehicle Mfrs. Assn. v. State Farm Mutual Ins. Co., 463 U.S. 29, 43 (1983). 

¶23 Nothing about either the dictionary definitions of the individual words or 

the definition of the phrase as a legal term of art connotes a requirement that an 

agency “meticulously” adhere to its internal rules. To the contrary, these 

definitions convey nearly the opposite meaning as “meticulous adherence.” 

I note in this regard that courts have used the terms “arbitrary and capricious” and 

“abuse of authority” interchangeably, and both terms require a deferential 

standard of review. See United States v. Lewis, 594 F.3d 1270, 1277 (10th Cir.) 

(a court “abuses its discretion when it renders a judgment that is arbitrary, 

capricious, whimsical, or manifestly unreasonable”), cert. denied, 130 S. Ct. 3441 

(2010); Howley v. Mellon Financial Corp., 625 F.3d 788, 793 n.6 (3d Cir. 2010) 

(“We have described the deferential standard of review . . . as both an ‘arbitrary 

and capricious’ standard of review, and a review for ‘abuse of discretion.’ We 

use these characterizations interchangeably in this opinion.”); Wagener v. SBC 

Pension Benefit Plan-Non Bargained Program, 407 F.3d 395, 402 (D.C. Cir. 

2005) (“the standard of review—variously described by the Court as ‘arbitrary 

and capricious’ and ‘abuse of discretion’ review—is plainly deferential”). 

¶24 How “arbitrary and capricious” should be interpreted in the context of 

these appeals is difficult to say, but it cannot mean what OPM and the majority 

say it means. When the Board makes a determination whether an employer has 

complied with its duty to accommodate employees’ disabilities, its standard of 

review is typically de novo, i.e., whether a party proved the requisite matter by 

the appropriate burden of proof, which is by preponderant evidence. If the Board 

is to apply an “arbitrary and capricious” standard of review to the question 

whether the agency complied with its duty to restore partially recovered 

employees under the ELM and other internal rules, it must be deferential review 

as described above; it cannot be a review that focuses on whether the agency has 

“meticulously” adhered to its obligations. One way of giving the requisite 
14

deference might be to ask whether there was substantial evidence to support the 

agency’s denial of restoration. 

¶25 Not only must the Board’s review of the agency’s determination be 

deferential in nature, it must focus on the correct point in time. The majority has 

essentially ruled that, once the Postal Service has provided a limited duty 

assignment to a partially recovered employee, the employee “owns” those duties 

unless and until the agency determines that the duties no longer need to be 

performed by anyone. Majority Opinion, ¶ 31. It is important to remember that 

we are not dealing with new requests for restoration by employees newly able to 

return to productive work; we are dealing with employees who were given limited 

duty assignments in the past (sometimes the long-ago past), but where those 

assignments were recently terminated. The majority acknowledges that it 

“appears that the agency’s practice for decades has been to make work available 

to partially recovered individuals under all circumstances, even though the plain 

language of the ELM suggests that the right to a modified assignment is not 

absolute.” Id., ¶ 30. If it would not have been “arbitrary and capricious” for the 

agency to have denied the original request for restoration, it cannot be said to be 

“arbitrary and capricious” to terminate the limited duty assignment at a later point 

in time. Accordingly, even if I were to agree that it was appropriate for the Board 

to enforce substantive entitlements conferred by internal agency rule, I would 

conclude that the Board must inquire whether the agency was required by the 

ELM to provide the original limited duty assignment. Moreover, in making that 

inquiry, the Board must adopt a deferential standard of review in which the 

agency’s determination that it was not required by the ELM to grant the limited 

duty assignment must be affirmed if it is supported by substantial evidence. 

Whether a denial of restoration was arbitrary and capricious is purely a merits 

issue.

¶26 I agree with the majority that, in light of the Federal Circuit’s decision in 

Bledsoe v. U.S. Postal Service, 659 F.3d 1097, 1104 (Fed. Cir. 2011), and 
15

particularly in light of its en banc decision in Garcia v. Department of Homeland 

Security, 437 F.3d 1322 (Fed. Cir. 2006), the jurisdictional elements in a partial 

recovery restoration appeal must be proven by preponderant evidence, as required 

by 5 C.F.R. § 1201.56(a)(2)(i). I disagree, however, with the majority’s 

conclusion that any of these appeals must be remanded for a jurisdictional 

hearing. The majority concludes that, although some appellants proved the first 

three jurisdictional elements by preponderant evidence, they have not so proved 

the last element—whether the denial of restoration was arbitrary and capricious. 

The majority finds, however, that the appellants have made nonfrivolous 

allegations regarding this final element, which entitles them to a jurisdictional 

hearing. 

¶27 Although the four-part listing of jurisdictional elements in partial recovery 

restoration appeals is of long standing, I believe it is incorrect. Whether a denial 

of restoration was arbitrary and capricious is purely and exclusively a merits 

issue. The regulation giving the Board jurisdiction over partial recovery 

restoration appeals is 5 C.F.R. § 353.304(c): “An individual who is partially 

recovered from a compensable injury may appeal to MSPB for a determination of 

whether the agency is acting arbitrarily and capriciously in denying restoration.”8

 

The first three jurisdictional elements—that the appellant was absent from his 

position due to a compensable injury, that he recovered sufficiently to return to 

duty on a part-time or limited duty basis, and that the agency denied his request 

for restoration to duty—are properly grounded in the first part of the first 

sentence of this regulation, “[a]n individual who is partially recovered from a 

compensable injury,” together with the reference to “denying restoration.” The 

wording of the remainder of this sentence—“may appeal to MSPB for a 

 

8

 The relevant statute, 5 U.S.C. § 8151, says nothing about a forum for vindicating the 

restoration rights provided by the law. Accordingly, OPM’s regulation is the Board’s 

sole source of jurisdiction. 
16

determination of whether the agency is acting arbitrarily and capriciously in 

denying restoration”—makes clear that the issue of whether the agency acted 

arbitrarily and capriciously in denying restoration is not only a merits issue, it is 

the dispositive merits issue. 

¶28 The Supreme Court has stated that “the term ‘jurisdictional’ properly 

applies only to ‘prescriptions delineating the classes of cases (subject-matter 

jurisdiction) and the persons (personal jurisdiction)’ implicating that authority.”9

 

Kontrick v. Ryan, 540 U.S. 443, 455 (2004); see Kirkendall v. Department of the 

Army, 479 F.3d 830, 842 (Fed. Cir. 2007) (en banc). Any ambiguity as to 

whether an element of a claim should be viewed as jurisdictional or merits in 

nature should be resolved in favor of the latter. See Arbaugh v. Y & H Corp., 546 

U.S. 500, 515-16 (2006). Nothing about the phrase “for a determination of 

whether the agency is acting arbitrarily and capriciously in denying restoration” 

sounds jurisdictional in nature, i.e., that OPM was delineating a class of cases 

over which the Board would exercise jurisdiction. To the contrary, this choice of 

words connotes merits only. 

¶29 The fact that Bledsoe described the determination of whether a denial of 

restoration was arbitrary and capricious as a jurisdictional issue does not bind the 

Board as a matter of precedent. The primary jurisdictional issue before the court 

in that case was the burden of proof, not the elements of jurisdiction. More 

importantly, the court did not engage in any analysis to ascertain and declare the 

 

9 Unlike federal courts, the Board does not inquire whether it has “personal 

jurisdiction” over a party. See Silva v. Department of Homeland Security, 112 M.S.P.R. 

362, ¶ 6 & n.2 (2009). Whether an appellant is someone covered by the grant of 

authority to adjudicate a class of cases is a question of subject matter jurisdiction. The 

first two elements of the traditional test—whether the appellant was absent from his 

position due to a compensable injury and whether he recovered sufficiently to return to 

duty—address the “who are you?” aspect of the Board’s subject matter jurisdiction that 

is similar to the concepts of personal jurisdiction and standing. The third element—a 

denial of restoration—addresses the “what action or decision are you challenging?” 

element of subject matter jurisdiction that is present in all Board appeals. 
17

jurisdictional elements in a partial recovery restoration appeal. The court instead 

deferred to Board precedent construing the jurisdictional requirements of partial 

recovery restoration appeals. 10 In such circumstances, the existence of the 

Federal Circuit decision does not prevent the Board from revisiting and revising 

its interpretation of the regulation. Cf. Tunik v. Merit Systems Protection Board, 

407 F.3d 1326, 1336-39 (Fed. Cir. 2005) (where panel decisions of the Federal 

Circuit have deferred to the Board’s interpretation of an ambiguous statute that 

the Board is authorized to administer, a later court panel is free to determine 

whether the Board’s new interpretation is reasonable). 

¶30 Jurisdiction has been established in all of these appeals. All of the 

appellants have proven by preponderant evidence that they were absent from their 

positions due to a compensable injury, that they recovered sufficiently to return 

to duty on a part-time or limited duty basis, and that the agency denied their 

 

10 The court cited Chen v. U.S. Postal Service, 97 M.S.P.R. 527, ¶ 13 (2004), for the 

applicable jurisdictional elements. Bledsoe, 659 F.3d at 1103. The first decision in 

which the Board articulated the present four-part jurisdictional test appears to have 

been Allen v. U.S. Postal Service, 73 M.S.P.R. 73, 77 (1997). That decision did not 

include any analysis supporting its conclusion that the determination of whether a 

denial of restoration was arbitrary and capricious is jurisdictional in nature. Instead, it 

contained a citation to Taylor v. U.S. Postal Service, 69 M.S.P.R. 479, 482 (1996). 

Taylor did not even contain a clear statement that the question whether a denial of 

restoration was arbitrary and capricious is a jurisdictional issue, much less any 

reasoning to support such a proposition. See id. at 482-83. 
18

 

request for restoration to duty. 11 As discussed above, however, none of the 

appellants has stated a claim upon which the Board could grant relief. 

______________________________ 

Mary M. Rose 

Member 

11 Strictly speaking, the agency did not deny requests for restoration made by 

employees who were not working; it instead discontinued existing limited duty 

assignments. Under the circumstances of these cases, however, I agree with Board 

precedent holding that the discontinuance of existing limited duty assignments is 

comparable to denying requests for restoration made by individuals who are not 

working.