Hoa Lien v. United States Postal Service ( 2015 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    HOA LIEN,                                       DOCKET NUMBER
    Appellant,                  SF-0752-15-0282-I-1
    v.
    UNITED STATES POSTAL SERVICE,                   DATE: September 21, 2015
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Zepuor Parsanian, Tujunga, California, for the appellant.
    Nina Paul, Esquire, San Francisco, California, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Mark A. Robbins, Member
    FINAL ORDER
    ¶1         The appellant has filed a petition for review of the initial decision, which
    dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
    as this one only when: the initial decision contains erroneous findings of material
    fact; the initial decision is based on an erroneous interpretation of statute or
    regulation or the erroneous application of the law to the facts of the case; the
    1
    A nonprecedential order is one that the Board has determined does not add
    significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
    but such orders have no precedential value; the Board and administrative judges are not
    required to follow or distinguish them in any future decisions. In contrast, a
    precedential decision issued as an Opinion and Order has been identified by the Board
    as significantly contributing to the Board’s case law. See 
    5 C.F.R. § 1201.117
    (c).
    2
    administrative judge’s rulings during either the course of the appeal or the initial
    decision were not consistent with required procedures or involved an abuse of
    discretion, and the resulting error affected the outcome of the case; or new and
    material evidence or legal argument is available that, despite the petitioner’s due
    diligence, was not available when the record closed. See Title 5 of the Code of
    Federal Regulations, section 1201.115 (
    5 C.F.R. § 1201.115
    ).           After fully
    considering the filings in this appeal, and based on the following points and
    authorities, we conclude that the petitioner has not established any basis under
    section 1201.115 for granting the petition for review. Therefore, we DENY the
    petition for review and AFFIRM the initial decision, which is now the Board’s
    final decision. 
    5 C.F.R. § 1201.113
    (b).
    ¶2        The appellant, a Distribution Clerk, suffered a compensable injury in 2005.
    Initial Appeal File (IAF), Tab 8 at 65-68. On July 16, 2013, he contended that he
    injured himself again while lifting a package. 
    Id. at 64
    . He was subsequently
    placed on a temporarily totally disabled (TTD) status by his treating physician
    and remained off work until August 20, 2013, when he returned to work with
    modified duties. IAF, Tab 4 at 1, Tab 6 at 23, 61-62.
    ¶3        On November 15, 2013, the agency issued the appellant a notice of removal
    based on the charge of failure to follow instructions/unacceptable conduct. IAF,
    Tab 8 at 31-41. In its notice, the agency specified that the appellant had filed a
    Notice of Traumatic Injury and Claim for Continuation of Pay Compensation
    asserting that on July 16, 2013, he had suffered an injury by lifting a package
    weighing more than 5 pounds. 
    Id.
     The agency stated that, in fact, the appellant
    had not lifted anything weighing more than 4 pounds.         
    Id.
       The agency also
    specified that an investigation by the Office of the Inspector General (OIG) and a
    detective from the California Department of Insurance revealed that the appellant,
    while receiving workers’ compensation benefits for being on a TTD status due to
    the alleged July 16, 2013 injury, regularly engaged in activities outside of his
    supposed physical limitations.      
    Id.
       Based on the OIG investigation, the
    3
    appellant’s treating physician eliminated the appellant’s TTD designation, and he
    returned to his modified duties. 
    Id.
    ¶4         The appellant grieved the notice of removal and continued to work while
    the grievance was pending until April 24, 2014, when he was arrested by OIG
    agents and charged with felonies apparently related to the fraudulent claim for
    workers’ compensation and incarcerated.          IAF, Tab 4, Tab 8 at 20.        Upon his
    arrest, the agency placed him in nonduty status until his grievance was fully
    adjudicated. IAF, Tab 8 at 20. The appellant was released from jail when he
    posted bond on April 26, 2014. IAF, Tab 4 at 6-8.
    ¶5         He subsequently filed this appeal, contesting the November 15, 2013 notice
    of removal, alleging that his placement on nonduty status was improper, and
    asserting that the agency failed to restore him after he was released from jail on
    April 26, 2014. 2     IAF, Tab 1.      He also alleged that the agency committed
    prohibited personnel practices. 
    Id.
    ¶6         In the initial decision, the administrative judge subsequently dismissed the
    appeal for lack of jurisdiction without holding a hearing. IAF, Tab 10, Initial
    Decision (ID). In particular, he found that the appellant failed to nonfrivolously
    allege Board jurisdiction over the notice of removal and the agency’s decision to
    place him in an unpaid status on April 24, 2014, as adverse actions. ID at 5. The
    administrative judge further found that the appellant failed to make a
    nonfrivolous allegation that his placement on nonduty status was due to his
    compensable injury, rather than due to his charged misconduct, arrest, and
    incarceration.   ID at 8.    Thus, the administrative judge found that the Board
    2
    The appellant also alleged that the agency improperly failed to restore him based on a
    partial day letter (PDL) that the agency issued him on December 18, 2013. On that
    date, the agency sent the appellant home before he worked a full shift because it had no
    work available within his restrictions. IAF, Tab 8. The administrative judge found
    that, to the extent that the appellant wants to pursue the claim of failure to restore based
    on the PDL, he must file a separate appeal with the Board. IAF, Tab 10, Initial
    Decision at 4.
    4
    lacked jurisdiction over the appeal. 
    Id.
     Additionally, the administrative judge
    found that, absent an appealable action, the Board did not have jurisdiction to
    adjudicate the appellant’s allegation that the agency engaged in prohibited
    personnel practices. 
    Id.
    ¶7         In his petition for review, the appellant alleges that the administrative judge
    erred in finding that his placement in a nonduty status was unrelated to his
    compensable injury. 3 Petition for Review File, Tab 1. He also states that he is
    still receiving workers’ compensation payments. 4 
    Id.
    ¶8         To establish jurisdiction over a restoration appeal as a partially recovered
    individual, the 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; and (4) the denial was arbitrary
    and capricious. Latham v. U.S. Postal Service, 
    117 M.S.P.R. 400
    , ¶ 10 (2012). If
    the appellant makes nonfrivolous allegations of jurisdiction regarding all four
    prongs of the jurisdictional standard, he is entitled to a jurisdictional hearing. See
    Paszko v. U.S. Postal Service, 
    119 M.S.P.R. 207
    , ¶ 8 (2013).
    3
    In his petition, the appellant represents that his criminal case has been dismissed.
    However, the most recent submission regarding that case shows that it was dismissed
    because the state was unable to proceed within the statutory time and that the state
    would be refiling the case at a later time. IAF, Tab 4 at 24.
    4
    To the extent that the appellant is contending that the notice of removal and his
    placement into an unpaid status on April 24, 2014, constitute appealable adverse
    actions, the administrative judge correctly found that the Board lacks jurisdiction over
    any such actions under 5 U.S.C. chapter 75. ID at 5. For a U.S. Postal Service
    employee to appeal an adverse action under chapter 75, he must: (1) be a preference
    eligible, a management or supervisory employee, or an employee engaged in personnel
    work in other than a purely nonconfidential clerical capacity; and (2) have completed
    1 year of current continuous service in the same or similar positions. Toomey v. U.S.
    Postal Service, 
    71 M.S.P.R. 10
    , 12 (1996). The administrative judge found that the
    appellant failed to satisfy the first jurisdictional requirement, and we discern no basis
    for disturbing this finding on review.
    5
    ¶9        Here, the appellant failed to make a nonfrivolous allegation that he was
    absent from his position due to a compensable injury, the first prong of the
    jurisdictional standard. The Board has held that an employee who was absent
    from work for cause, rather than for reasons substantially related to his
    compensable injury, is not entitled to restoration.           Frye v. U.S. Postal
    Service,   
    102 M.S.P.R. 695
    ,    ¶9    (2006);   King v.    Department   of   the
    Navy, 
    90 M.S.P.R. 341
    , ¶ 8 (2001).       A valid reason for placement in nonduty
    status, unrelated to a compensable injury, precludes restoration rights. Mobley v.
    U.S. Postal Service, 
    86 M.S.P.R. 161
    , ¶ 7 (2000). The appellant’s misconduct,
    specified by the agency as alleged fraudulent receipt of workers’ compensation
    benefits, was the cause of his placement in nonduty status, not his compensable
    injury. Accordingly, we find that the administrative judge properly found that the
    appellant failed to make a nonfrivolous allegation that he was absent from his
    position as a result of a compensable injury and correctly dismissed the appeal for
    lack of jurisdiction without holding a hearing. ID at 1, 8.
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    You have the right to request review of this final decision by the
    United States Court of Appeals for the Federal Circuit. You must submit your
    request to the court at the following address:
    United States Court of Appeals
    for the Federal Circuit
    717 Madison Place, N.W.
    Washington, DC 20439
    The court must receive your request for review no later than 60 calendar
    days after the date of this order.      See 
    5 U.S.C. § 7703
    (b)(1)(A) (as rev. eff.
    Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
    has held that normally it does not have the authority to waive this statutory
    6
    deadline and that filings that do not comply with the deadline must be dismissed.
    See Pinat v. Office of Personnel Management, 
    931 F.2d 1544
     (Fed. Cir. 1991).
    If you need further information about your right to appeal this decision to
    court, you should refer to the Federal law that gives you this right. It is found in
    Title 5 of the United States Code, section 7703 (
    5 U.S.C. § 7703
    ) (as rev. eff.
    Dec. 27, 2012).      You may read this law as well as other sections of the
    United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
    Additional         information     is          available      at    the         court’s
    website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
    for Pro Se Petitioners and Appellants,” which is contained within the
    court’s Rules of Practice, and Forms 5, 6, and 11.
    If you are interested in securing pro bono representation for your appeal to
    the Court of Appeals for the Federal Circuit, you may visit our website
    at   http://www.mspb.gov/probono        for     information   regarding   pro     bono
    representation for Merit Systems Protection Board appellants before the Federal
    Circuit.   The Merit Systems Protection Board neither endorses the services
    provided by any attorney nor warrants that any attorney will accept representation
    in a given case.
    FOR THE BOARD:                                ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.
    

Document Info

Filed Date: 9/21/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021