Marshall v. Merit Systems Protection Board ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DOUGLAS SCOTT MARSHALL,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3012
______________________
Petition for review of the Merit Systems Protection
Board in No. NY0353110257-I-1.
______________________
Decided: March 12, 2013
______________________
DOUGLAS S. MARSHALL, of Guayanilla, PR, pro se.
JEFFREY GAUGER, Attorney, Office of General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
______________________
2 DOUGLAS MARSHALL v. MSPB
Before MOORE, LINN, and REYNA, Circuit Judges.
PER CURIAM.
Douglas S. Marshall appeals from a final decision of
the Merit Systems Protection Board (the “Board”) dis-
missing his appeal for lack of jurisdiction. The Board
determined that it lacked jurisdiction because Mr. Mar-
shall had not demonstrated a denial of restoration under
5 C.F.R. § 353.304(c). Because Mr. Marshall has failed to
make a nonfrivolous allegation of agency action constitut-
ing a denial of restoration, we affirm.
Mr. Marshall’s employment history with the United
States Postal Service (“USPS”) is detailed in our previous
opinions, Marshall v. U.S. Postal Serv., 402 F. App’x 521,
522 (Fed. Cir. 2010) (“Marshall I”) and Marshall v. U.S.
Postal Serv., 463 F. App’x 936, 937 (Fed. Cir. 2012) (“Mar-
shall II”). By way of summary, Mr. Marshall had certain
work limitations due to an injury he incurred in 1995
while working as a part-time letter carrier for USPS.
After surgery and a period of receiving worker’s compen-
sation, Mr. Marshall accepted a modified job accommodat-
ing his physical restrictions and having an 8-hour
workday. In 2004, Mr. Marshall transferred to become a
part-time flexible carrier in Guayanilla, Puerto Rico. For
some time after that transfer, Mr. Marshall was paid for
40-hours per week. Pursuant to USPS policy, however, it
was later determined that as a full-time employee who
transferred to a part-time position, he was not guaranteed
a 40-hour work week. 1
1 We previously noted that the Office of Workers
Compensation Program, the Equal Employment Oppor-
tunity Commission, and the United States District Court
for the District of Puerto Rico each held that Mr. Mar-
shall’s voluntary transfer from a full-time position in
Detroit to a part-time position in Guayanilla was the
DOUGLAS MARSHALL v. MSPB 3
In 2008, USPS conducted a National Reassessment
Process to evaluate the efficiency of its employees. Dur-
ing that evaluation, USPS informed Mr. Marshall that it
had no available work within his medical restrictions and
would place him on leave-without-pay status. Mr. Mar-
shall appealed to the Board.
While his appeal was pending, Mr. Marshall and
USPS entered into a settlement agreement. Based on the
settlement agreement, the administrative judge dismissed
Mr. Marshall’s appeal. Mr. Marshall appealed the dis-
missal to our court, arguing that he had been coerced into
entering the settlement agreement. We affirmed the
Board’s decision in Marshall I, explaining that “we will
not ignore Marshall’s voluntary agreement to the terms of
the settlement.” Marshall I, 402 F. App’x at 523.
In July 2010, while Marshall I was pending before our
court, USPS offered Mr. Marshall a position as a modi-
fied, part-time flexible carrier in the Guayanilla, Puerto
Rico Post Office. Mr. Marshall rejected this offer and
appealed to the Board based on USPS’s alleged failure to
try to find work for him that accommodated his work
restrictions. At a hearing before the administrative
judge, the parties entered into a settlement agreement
under which Mr. Marshall agreed to withdraw his appeal
to the Board with prejudice and “to withdraw any [Equal
Employment Opportunity] Claims, if any, regarding his
employment with [USPS] to date.”
In exchange for the release, USPS agreed to allow Mr.
Marshall to switch from a part-time flexible letter carrier
to a part-time flexible clerk upon his successful comple-
tion of USPS’s window training exam. Under the agree-
ment, Mr. Marshall acknowledged that he “underst[ood]
that as a [Part–Time Flexible] employee he [was] not
reason for the decrease in his hours, not his knee injury.
Marshall I, 402 F. App’x at 522.
4 DOUGLAS MARSHALL v. MSPB
guaranteed a forty hour work week.” Based on the set-
tlement, the administrative judge dismissed Mr. Mar-
shall’s appeal. Mr. Marshall petitioned the Board for
review, arguing that the settlement agreement “was the
result of fraud or mistake and therefore unlawful” be-
cause he signed the agreement understanding that the
clerk position was six or seven hours a day but later
discovered that the available position for him was only
two hours per day. The Board denied the petition, and
Mr. Marshall again appealed to our court. We affirmed
the Board’s decision in Marshall II, explaining that under
the clear terms of the agreement, Mr. Marshall voluntari-
ly agreed to a part-time position that could involve less
than forty hour of work per week. Marshall II, 463 F.
App’x at 937–38.
Mr. Marshall subsequently failed to take USPS’s win-
dow training exam as contemplated by the settlement
agreement. He therefore failed to meet the requirements
for the part-time flexible clerk position at two hours per
day that we upheld under the settlement agreement in
Marshall II. In November 2010 USPS offered, and Mr.
Marshall accepted, a new position which would provide
him with approximately 5 hours of work per day at his
existing duty location at the Guayanilla Post Office. In
June 2011, Mr. Marshall again appealed to the Board,
this time challenging the sufficiency of the November
2010 work assignment he had accepted.
The AJ dismissed Mr. Marshall’s appeal for lack of ju-
risdiction, finding that Mr. Marshall failed to make a
nonfrivolous allegation that he was denied restoration.
Specifically, the AJ determined that Mr. Marshall had not
alleged a complete denial of restoration because he con-
tested only the working hours associated with his new
position. The full Board affirmed, but disagreed with the
AJ’s reasoning. The Board said,
DOUGLAS MARSHALL v. MSPB 5
We disagree with the reasoning in the initial
decision to the extent that the administrative
judge found that the appellant’s claim pertained
to a reduction in his working hours that constitut-
ed a dispute over the details and circumstances of
his restoration. As explained above, the November
5, 2010 job offer would have actually constituted
an increase in the appellant’s working hours. Nev-
ertheless, we agree with the administrative
judge’s ultimate conclusion that the Board lacks
jurisdiction over the instant appeal because the
appellant failed to make a nonfrivolous allegation
that the agency’s action constituted a denial of
restoration.
Marshall v. U.S. Postal Serv., No. NY-0353-11-0257-I-1,
slip. op. at 3–4 (M.S.P.B. Aug. 10, 2012) (emphasis add-
ed). Essentially, the Board held that because the Novem-
ber 2010 job offer constituted an increase in working
hours for Mr. Marshall, he had not made a nonfrivolous
allegation that he was denied restoration.
Mr. Marshall appeals.
DISCUSSION
“An employee, who is separated or furloughed from an
appointment without time limitation as a result of a
compensable injury, may have restoration rights under 5
C.F.R. § 353, and may appeal the denial of those rights to
the Board.” Coe v. U.S. Postal Serv., No. CH-0752-03-
0198-I-1, 2004 WL 601674, at *632 (M.S.P.B. Mar. 18,
2004); see 5 C.F.R. § 353.304. To establish jurisdiction
under 5 C.F.R. § 353.304(c), which deals with partial
recovery from a compensable injury, “the petitioner must
prove by preponderant evidence: (1) absence due to a
compensable injury; (2) sufficient recovery from the injury
to return to duty on a part time basis or in a less physical-
ly demanding position; (3) agency denial of a request for
restoration; and (4) denial of restoration rendered arbi-
6 DOUGLAS MARSHALL v. MSPB
trary and capricious by agency failure to perform its
obligations under 5 C.F.R. 353.301(d).” Bledsoe v. Merit
Sys. Prot. Bd., 659 F.3d 1097, 1104 (Fed. Cir. 2011).
Mr. Marshall previously appealed the two-hour-per-
day, part-time flexible clerk position that USPS offered
him pursuant to their settlement agreement. Marshall II,
463 F. App’x at 937–38. The AJ dismissed Mr. Marshall’s
appeal based on the settlement agreement, the full Board
denied Mr. Marshall’s petition for review, and we af-
firmed the decision of the Board. Id. Mr. Marshall sub-
sequently failed to take USPS’s training exam as
contemplated by the agreement. USPS nevertheless
offered Mr. Marshall a new position providing him with
approximately 5 hours of work per day at his existing
duty location in Guayanilla. Mr. Marshall accepted the
position.
In the end, USPS offered, and Mr. Marshall accepted,
a position carrying more working hours than the two-
hour-per-day, part-time position we upheld in Marshall
II. Where an employee was previously restored to a
legally proper position, an increase in working hours over
that position is not by itself a denial of restoration under
5 C.F.R. § 353. The decision of the Board is
AFFIRMED
COSTS
Each party shall bear its own costs.