U.S. Merit Systems Protection Board 
Case Report for July 6, 2012

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS


Appellant:  Kenneth R. Price
Agency:  United States Postal Service
Decision Number:  2012 MSPB 74
Docket Number:  DE-0752-11-0190-I-2
Issuance Date:  June 26, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Reduction in Grade/Pay

Mootness
 - Complete Rescission - Status Quo Ante Relief

    The appellant petitioned for review an initial decision that dismissed his demotion appeal as moot.  The agency proposed the appellant's removal on a charge of unacceptable conduct.  The agency's deciding official sustained the charge but reduced the penalty from removal to a demotion and the appellant filed an appeal with the Board.  While the appeal was pending, the agency notified the administrative judge that it was rescinding the demotion and intended to provide the appellant with status quo ante relief.  The judge found that the agency had completely rescinded its adverse action and dismissed the appeal as moot.  On review, the appellant contended that the agency had not provided him complete status quo ante relief.  

Holdings:  The Board vacated the initial decision and remanded the appeal to the regional office for further adjudication:

1.  An appeal will be dismissed as moot when, by virtue of an intervening event, the Board cannot grant any effectual relief in favor of the appellant, as when the appellant has obtained all of the relief he could have obtained had he prevailed before the Board.  An agency's unilateral modification of its personnel action after an appeal has been filed cannot divest the Board of jurisdiction unless the appellant consents to such divestiture or the agency completely rescinds the action being appealed.  To render the appeal moot, the agency must return the appellant to the status quo ante, i.e., not left in a worse position than if the matter had been adjudicated and he had prevailed.

2.  The Board found
without merit the appellant's contention that the agency had not completely rescinded its demotion action because some agency personnel management records still reflect that the agency placed him on a lengthy period of administrative leave and in leave without pay status, and his argument that the agency failed to pay him for lost interest on his Thrift Saving Plan account.  

3.  The Board found it likely that the appellant may have lost leave to which he was entitled because the position into which he had been demoted did not have the same leave rules as his regular position, in that his regular position allowed incumbents the option of taking absences of less than half a day as "personal absence time," which is not charged to annual leave, sick leave, or leave without pay.  Accordingly, the appeal was remanded for a determination whether the agency properly recredited the appellant with leave time.  



Appellant:  Debbie J. Coles
Agency:  United States Postal Service
Decision Number:  2012 MSPB 77
Docket Number:  CH-0353-10-0831-I-2
Issuance Date:  June 29, 2012
Appeal Type:  Restoration to Duty
Action Type:  Restoration After Recovery from Compensable Injury

Restoration
 - Partial Recovery from Compensable Injury
Jurisdiction

    The agency petitioned for review of an initial decision that ordered the agency to retroactively restore the appellant to a position within her medical restrictions.  She filed an appeal challenging the agency's action revoking her limited duty assignment and placing her in a leave status based on its determination under its National Reassessment Process (NRP) that there were no available tasks within her medical restrictions.  After a hearing, the administrative judge granted the appellant's request for restoration.  The judge found that the Board had jurisdiction over the appeal because the appellant made nonfrivolous allegations that she was absent from her position due to a compensable injury, she recovered sufficiently to return to work in a position with less demanding physical requirements than those previously required of her, the agency denied her requestion for restoration by terminating the limited duty assignment it had provided her, and that the denial was arbitrary and capricious.  In finding that the appellant nonfrivolously alleged that the denial was arbitrary and capricious, the judge noted that the appellant alleged that she can perform the majority of the core duties of her position, and that she has performed many duties that are still available and within her medical restrictions.  The judge further found that the appellant had submitted letters from co-workers who supported her contention that work she had performed was currently available.  In addressing the merits of the case, the judge found that the appellant proved the above jurisdictional criteria by preponderant evidence.  In particular, the judge found that there was no evidence that the agency met its obligation to search for work within the appellant's medical restrictions in the entire local commuting area.  

Holdings:  The Board affirmed the initial decision as modified, still finding that the agency arbitrarily and capriciously denied the appellant restoration:

1.  The appellant established jurisdiction over her appeal.  In recent decisions, the Federal Circuit and the Board have both held that all jurisdictional elements in a partial recovery restoration appeal must be proved by preponderant evidence.  Although the administrative judge found that the appellant established these elements by making nonfrivolous allegations, the judge also found that the appellant proved these elements by preponderant evidence in ruling on the merits of the case.  

2.  The agency does not have unfettered authority to economize its operations by consolidating the tasks being performed by limited duty employees and reassigning them to non-limited duty employees who would otherwise be performing them.  The Board decisions that the agency relied on in this regard were overruled in Latham v. U.S. Postal Service, 117 M.S.P.R. 400 (2012).  The Board held in Latham that, although federal agencies may generally retain such authority, the Postal Service adopted rules that severely constrained its ability in that regard.  

3.  The judge applied the proper standard and correctly made findings of fact in concluding that the agency did not establish that it searched for available work during all tours, in all crafts, and at all facilities within the local commuting area.  

4.  Here, as in Latham, the appellant established that the limited circumstances under which the agency can revoke a modified assignment are not present.  There is no evidence that the duties of the appellant's modified assignment have gone away.  To the contrary, the appellant submitted unrebutted evidence and argument below that the work she used to be doing is still being done at her former facility by other employees on an overtime basis.  

5.  The agency correctly asserted that the judge improperly ordered the agency to restore the appellant to a "position" within her medical restrictions.  The Board modified the initial decision to order the agency to restore the appellant to her former modified assignment.  

    Member Robbins issued a concurring opinion in which he acknowledged that Latham, which was decided before his appointment to the Board, is controlling precedent and that it was applied appropriately in this case.  He expressed concern, however, at the scope of the Board's Latham holding, particularly when applied to agencies such as the Postal Service that are facing potentially existential fiscal, structural and management challenges.  He noted that the previous rule -- that 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 -- is a clear and concise rule that still applies to other agencies that have not granted employees greater substantive rights those those required by law and regulation.  He noted that agencies who are willing to extend greater rights under favorable circumstances should be allowed to respond appropriately when circumstances turn unfavorable.  Even if one accepts OPM's interpretation of its regulations as controlling, he stated that he is not completely convinced that, absent clear instruction from Congress, the courts above, or OPM through the promulgation of additional regulations, the Board should assert authority to adjudicate and enforce a substantive entitlement beyond a statutory or regulatory minimum.  Finally, he noted the interesting discussion in the Latham dissent of whether the determination of an agency's potentially arbitrary and capricious denial of restoration is properly considered a jurisdictional element rather than a merits issue, but said that this is a "discussion for another day."  



Appellant:  Jacqueline  Ashley
Agency:  United States Postal Service
Decision Number:  2012 MSPB 75
Docket Number:  AT-0353-11-0063-I-1
Issuance Date:  June 28, 2012
Appeal Type:  Restoration to Duty
Action Type:  Restoration After Recovery from Compensable Injury

Restoration
 - Partial Recovery from Compensable Injury

    The appellant petitioned for review of an initial decision that denied her restoration appeal on the merits.  The facts in this case are similar to those in the Coles appeal described above.  The appellant suffered a compensable injury, made a partial recovery, was given a limited duty aassignment within her medical restrictions, which the agency terminated under the National Reassessment Process.  The administrative judge found that denying the appellant restoration was not arbitrary and capricious because no operationally necessary taks within her medical restrictions were available within the local commuting area.  

Holdings:  The Board reversed the initial decision and ordered the agency to restore the appellant to her limited duty position:

1.  In determining whether the agency acted arbitrarily and capriciously in ending the appellant's modified assignment, Latham establishied the following framework:  (a) Are the tasks of the appellant's former modified assignment still being performed by other employees? (b) If so, did those employees lack sufficient work prior to absorbing the appellant's modified duties? (c) If so, did the reassignment of that work violate any other law, rule, or regulation?  

2.  The Board found no evidence that the duties of the appellant's most recent modified assignment have gone away.  In fact, the record shows that those duties were being performed on a daily basis by clerk craft employees or management personnel.  Further, there is no evidence that there was a lack of work for clerk craft employees or management personnel at the time the agency discontinued the appellant's modified assignment.  



Appellant:  Rowena G. Richards
Agency:  United States Postal Service
Decision Number:  2012 MSPB 76
Docket Number:  SF-0353-10-0517-I-2
Issuance Date:  June 29, 2012
Appeal Type:  Restoration to Duty
Action Type:  Restoration After Recovery from Compensable Injury

Jurisdiction
Restoration
 - Partial Recovery from Compensable Injury

    The appellant petitioned for review of an initial decision that denied her restoration claims on the merits.  The facts in this case are similar to those in the Coles and Ashley appeals described above.  The appellant suffered a compensable injury, made a partial recovery, was given a limited duty aassignment within her medical restrictions, which the agency terminated under the National Reassessment Process.  The administrative judge found on the merits that the appellant did not demonstrate that the agency's denial of restoration was arbitrary and capricious.  The judge found that the agency conducted a search for available work within the appellant's medical restrictions within the local commuting area, and that the appellant failed to prove that there were available duties that she was able to perform within her medical restrictions.

Holdings:  The Board modified the initial decision and dismissed the appeal for lack of jurisdiction:  

1.  After the appellant filed her petition for review, the Board issued its decision in Latham, holding that an appellant in a partial recovery restoration appeal must prove all jurisdictional elements by preponderant evidence, including that the agency's denial of restoration was arbitrary and capricious.

2.  The appellant did not argue below or on review that the tasks of her former modified assignment were still being performed by other employees or that such employees did not lack sufficient work prior to absorbing her modified duties.  

3.  The evidence does not support the appellant's contention that there were other tasks within her medical restrictions that were available for her to perform.  



Appellant:  Lawrence F. Sherman
Agency:  United States Postal Service
Decision Number:  2012 MSPB 78
Issuance Date:  July 5, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Timeliness - Refiled Appeal

      The appellant petitioned for review of an initial decision that dismissed his refiled appeal as untimely, with no good cause shown for the delay.  The agency removed the appellant from his position as a General Clerk for making false representations of material facts to obtain unemployment compensation, and he filed a timely appeal with the Board.  Because the appellant had been charged in a criminal case based on the same conduct that led to his removal, the Board appeal was dismissed without prejudice four times in order that the criminal case could be concluded before the Board appeal was adjudicated.  On the fourth dismissal without prejudice, the administrative judge directed the appellant to refile his appeal “within 30 days of a disposition of the criminal matter or no later than March 1, 2011, even if the criminal matter is unresolved.” (emphasis in original).  The appellant refiled his appeal on February 25, 2011.  During a status conference, the agency stated that the jury in the criminal matter had issued a guilty plea on November 5, 2010, and argued that the appeal was untimely refiled.  The appellant argued that, because he had filed an appeal of his conviction, the criminal matter was still ongoing and he believed that the March 1, 2011 refiling deadline applied.  The judge found, however, that the appeal was untimely filed without a showing of good cause, in that the appellant had been explicitly advised that "disposition of the criminal matter" included a guilty verdict.  

Holding:  The Board vacated the initial decision and remanded the appeal to the regional office for further adjudication:

1.  A dismissal without prejudice should not become a trap to deny an appellant the opportunity to have his case decided on the merits, especially where, as here, his intention to refile a Board appeal has been clear throughout the proceedings and the appeal was initially timely filed.

2.  Whether good cause exists for an untimely refiled appeal involves several factors:  the appellant's pro se status; the timeliness of the initial appeal; the length of the delay in refiling; confusion surrounding and arbitrariness of the refiling deadline; the number of prior dismissals without prejudice; the agency's failure to object to the dismissal without prejudice; and the lack of prejudice to the agency in allowing the refiled appeal.

3.  Although certain factors weigh against the appellant, the Board found that the appellant established good cause for the delay in refiling his appeal because other factors weigh decisively in his favor.  The appellant was pro se, timely filed his initial appeal, and did not indicate any intention to abandon his appeal.  The agency did not object to the most recent dismissal without prejudice and has not asserted that it would be prejudiced in allowing the refiled appeal to proceed.  Another factor weighing heavily in the appellant's favor is confusion surrounding the refiling deadline.  The judge identified two possible deadlines for refiling:  within 30 days of the disposition of the criminal matter; or March 1, 2011, even if the criminal matter was not resolved.  The disposition of the criminal matter is not necessarily synonymous with the resolution of the criminal matter.  The guilty verdict in the criminal trial constituted a disposition but, since the appellant was appealing his conviction, the criminal matter had not necessarily been resolved.  

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