Clark v. MSPB , 679 F. App'x 1006 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DANNICE E. CLARK,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-2648
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0353-16-0120-I-1.
______________________
Decided: February 9, 2017
______________________
DANNICE E. CLARK, McDonough, GA, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before REYNA, WALLACH, and CHEN, Circuit Judges.
PER CURIAM.
2 CLARK v. MSPB
Petitioner Dannice E. Clark appeals the final decision
of the Merit Systems Protection Board (“MSPB”) dismiss-
ing her appeal for lack of jurisdiction. See Clark v. U.S.
Postal Serv., 123 M.S.P.R. 466, 474 (2016). We affirm.
BACKGROUND
Ms. Clark is an employee of the U.S. Postal Service
(“USPS”). Id. at 469. She alleged that the USPS refused
her request to return to duty from April−August 2015
following partial rehabilitation from a work-related injury
and, thus, violated her restoration of duty rights. See
generally Clark v. U.S. Postal Serv., No. AT-0353-16-
0120-I-1, 2015 WL 9282709 (M.S.P.B. Dec. 17, 2015). An
Administrative Judge (“AJ”) issued an order acknowledg-
ing Ms. Clark’s petition and directing the parties to follow
the procedures set forth. Resp’t’s App. 25−40. The Order
included, inter alia, general information on deadlines for
discovery filings. Id. at 27. The AJ also issued a separate
order directing both parties to file evidence to prove the
MSPB’s jurisdiction over the restoration claim within
fifteen calendar days. Id. at 50; see id. at 42−50.
Neither party responded to the Order on jurisdiction,
and the AJ dismissed the case for lack of jurisdiction,
finding that Ms. Clark failed to plead non-frivolous alle-
gations in her complaint. Id. at 14. The MSPB affirmed
the AJ’s findings. Clark, 123 M.S.P.R. at 471−74. Ms.
Clark appeals. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9) (2012).
DISCUSSION
I. Standard of Review
We must affirm final decisions of the MSPB unless
they are “not in accordance with law” or “unsupported by
substantial evidence.” 5 U.S.C. § 7703(c)(1), (3) (2012).
Substantial evidence “means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197,
CLARK v. MSPB 3
229 (1938) (citations omitted). We review determinations
of the MSPB’s jurisdiction de novo as questions of law and
underlying factual findings for substantial evidence.
Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed.
Cir. 2008).
II. The MSPB Properly Held that It Lacked Jurisdiction
Employees who are partially recovered from a com-
pensable injury do not have an unconditional right to
restoration of their agency positions. Bledsoe v. Merit Sys.
Prot. Bd., 659 F.3d 1097, 1103 (Fed. Cir. 2011). Rather,
they have “a right to have the agency make every effort to
restore them in the local commuting area and according to
the circumstances in each case.” Id. (internal quotation
marks and citation omitted). “[A]n appellant who initi-
ates an appeal [with respect to restoration duties] must
make nonfrivolous allegations . . . with regard to the
substantive jurisdictional elements applicable . . . .”
5 C.F.R. § 1201.57(b) (2015); see id. § 1201.57(a)(4).
Nonfrivolous allegations are defined as those which are
“more than conclusory,” “plausible on [their] face,” and
“material to the legal issues in the appeal.” Id.
§ 1201.4(s)(1)−(3). The applicable substantive jurisdic-
tional elements are
(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 physically
demanding position; (3) agency denial of a request
for restoration; and (4) denial of restoration [was]
rendered arbitrary and capricious by agency fail-
ure to perform its obligations . . . .
Bledsoe, 659 F.3d at 1104. We have stressed that,
“[b]ecause partially recovered employees do not have an
unconditional right to restoration, they do not have the
right to appeal every denial of restoration.” Id. at 1103.
Only when the substantive jurisdictional elements are
nonfrivolously alleged will a right to appeal be found.
4 CLARK v. MSPB
The MSPB found that Ms. Clark failed to plead non-
frivolous allegations with respect to the fourth required
element―showing that the USPS’s denial was arbitrary
and capricious. Clark, 123 M.S.P.R. at 472. In so finding,
the MSPB clarified that, to make a non-frivolous allega-
tion, a petitioner must present material that is more than
“vague, conclusory, or unsupported allegation, such as one
that essentially repeats the legal standard.” Id. at 471.
The MSPB found that Ms. Clark “failed to assert any facts
in support of [her] allegation[s],” including identification
of specific provisions in the collective bargaining agree-
ment (“CBA”) that were allegedly violated, and that she
“merely presented pro forma allegations that the [USPS]’s
denial was arbitrary and capricious.” Id. at 472.
On appeal, Ms. Clark presents four statements from
her Complaint that she claims are non-frivolous allega-
tions that the USPS’s actions were arbitrary and capri-
cious: (1) she worked for five hours after she had been
approved for limited return to work and was instructed to
return home because the USPS could not accommodate
her disability; (2) the USPS refused to offer her reasona-
ble accommodation of her disability; (3) the refusal violat-
ed provisions of her CBA; and (4) the union noted that she
had actually worked the full five hours on April 13, 2015
prior to being sent home. Pet’r’s Br. 7−8.
These four statements, however, do not present any
specific facts or plausible assertions that would prove the
USPS acted arbitrarily or capriciously towards Ms. Clark.
As we have held, we will not “foist jurisdiction upon the
[MSPB] over appeals brought by partially recovered
petitioners who do not even allege that they did not re-
ceive the requisite ‘effort to restore,’” for “[t]he [MSPB]
would then have jurisdiction to decide the merits of
a . . . claim that does not actually exist.” Bledsoe, 659
F.3d at 1104. Ms. Clark does not allege that the work she
performed on April 13, 2015 was part of a restoration of
duties that had been sanctioned by the USPS or that
CLARK v. MSPB 5
there was an available position that she was denied. She
has offered no plausible explanation for the refusal to
accommodate her restoration request, other than her
supervisor’s April 13, 2015 statement that the USPS did
not at that time “have adequate work within her limita-
tions.” Pet’r’s Br. 8 (capitalization omitted). This state-
ment, without more, does not show arbitrary or capricious
behavior. Although Ms. Clark now identifies specific
articles of the CBA that she claims were violated, id., this
level of specificity was not alleged in the Complaint, see
Clark, 123 M.S.P.R. at 472 (acknowledging that Ms.
Clark’s Complaint “did not identify any restoration obli-
gation contained [in the CBA] that the [USPS] violated or
explain how it did so”); see Clark v. Merit Sys. Prot. Bd.,
Docket No. 11-2, at 92 (Fed. Cir. Oct. 27, 2016). We will
not review arguments presented for the first time on
appeal. See Singleton v. Wulff, 428 U.S. 106, 120 (1976)
(“It is the general rule, of course, that a federal appellate
court does not consider an issue not passed upon below.”).
III. The MSPB Properly Upheld the AJ’s Determinations
Related to Procedural Deadlines
Ms. Clark makes two additional arguments related to
the MSPB’s review of the AJ’s decisions concerning filing
deadlines and time accorded for discovery, i.e., internal
administrative deadlines. We review MSPB determina-
tions of AJ orders concerning docket management for
substantial evidence under 5 U.S.C. § 7703(c). See
Azarkhish v. Office of Pers. Mgmt., 915 F.2d 675, 677
(Fed. Cir. 1990) (framing the issue for review as
“[w]hether there is substantial evidence to support the
AJ’s finding that petitioner was not prevented by circum-
stances beyond her control from timely requesting recon-
sideration of [an agency]’s dismissal of her application”).
First, Ms. Clark avers that the MSPB improperly
found that she had not established good cause for an
untimely filing. Pet’r’s Br. 4−6. Although jurisdictional
6 CLARK v. MSPB
responses were due within fifteen days of the AJ’s Order,
Ms. Clark alleged that a host of mitigating factors sup-
ported her request for additional time to file a response.
Id. at 4−5 (listing sixteen mitigating factors). She argues
that the MSPB erred in only considering certain mitigat-
ing factors in its decision. Id. at 6; see Clark, 123
M.S.P.R. at 473.
The MSPB elaborated upon its decision to dismiss Ms.
Clark’s argument with respect to improper dismissal on
the factors related to the heavy workload of Ms. Clark’s
attorney and “competing time demands,” including holi-
days. Clark, 123 M.S.P.R. at 473; see id. (stating that Ms.
Clark’s counsel alleged “a number of factors including a
death in his family, the Thanksgiving holiday, and a busy
workload” (emphasis added)). To reach the conclusion
that Ms. Clark prefers, we would have to reweigh the
evidence, which we may not do on appeal. See Jones v.
Dep’t of Health & Human Servs., 834 F.3d 1361, 1369
(Fed. Cir. 2016) (“Under the substantial evidence stand-
ard of review, we do not reweigh evidence on appeal.”
(internal quotation marks, brackets, and citation omit-
ted)).
Ms. Clark also alleges that other factors show good
cause for the untimely filing of jurisdictional responses.
Specifically, Ms. Clark points to the fact that the AJ
advised her counsel sometime after December 8, 2015 to
contact opposing counsel to discuss a potential request for
additional time to file and that Ms. Clark’s counsel did so
on December 18, 2015, at which time opposing counsel
stated he did not object to a grant of additional time to
file. Pet’r’s Br. 6.
Substantial evidence supports the MSPB’s findings as
to other factors. The AJ noted that he received a call from
Ms. Clark’s counsel on December 8, 2015 informing him
that counsel planned to file a motion to file an untimely
jurisdictional response. Resp’t’s App. 14 n.1. However,
CLARK v. MSPB 7
the AJ also noted that the record on jurisdiction closed on
December 14, 2015. Id. As the MSPB explained, Ms.
Clark has not shown that the delay in filing was excusa-
ble under the circumstances leading up to the December
14 due date, a fact that Ms. Clark does not contest. See
generally Pet’r’s Br. Nor has she shown, in accordance
with the terms of the Order, that the “evidence or argu-
ment” she seeks to admit after the record closed was “new
and material evidence that was unavailable before the
record closed.” Resp’t’s App. 50; see Azarkhish, 915 F.2d
at 676 (upholding an AJ’s dismissal of a case on similar
grounds). As we have stated, “requirements of strict
adherence to filing and timing rules are ubiquitous in our
legal system.” James v. Office of Pers. Mgmt., 372 F.3d
1365, 1369 (Fed. Cir. 2004). Moreover, the fact that Ms.
Clark’s counsel informed the AJ that he would be seeking
to file a motion for untimely filing does not change this
result because counsel then failed to file the motion before
the closure of the record on jurisdiction on December 14.
Second, Ms. Clark argues that the MSPB incorrectly
upheld the AJ’s determination that she was not prevented
from exercising her right to discovery. Pet’r’s Br. 1–4.
Instead, she claims that the AJ “prevented [her] from
exercising her right to conduct discovery” when he set the
time for filing jurisdictional submissions to end prior to
the deadline for filing discovery. Id. at 2.
The MSPB found that, although Ms. Clark did have a
right to discovery, her “failure to avail herself of th[e]
opportunity [to conduct discovery]” was not reversible
error by the AJ. Clark, 123 M.S.P.R. at 474. The MSPB
noted that, in agency proceedings, there is “an expectation
that the parties will start and complete discovery with
minimum [MSPB] intervention.” Id. (citations omitted).
Jurisdiction is a “threshold requirement” at the
MSPB. Bledsoe, 659 F.3d at 1102 (citation omitted).
“Because the [MSPB]’s jurisdiction is limited rather than
8 CLARK v. MSPB
plenary . . . , it is crucial to identify at the outset the
jurisdictional requirements of any given appeal.” Id.
Recognizing these principles, we agree that the MSPB’s
affirmance of the AJ’s procedural deadline was supported
by substantial evidence. Regardless of the deadline for
initiating discovery, it was not only well within the AJ’s
purview but was required of him to address jurisdiction
before proceeding to discovery on the merits. Addressing
jurisdiction as a preliminary matter is also made clear in
the Order laying out the deadlines for discovery. The
Order states that only “[i]f [Ms. Clark’s] appeal
is . . . within the [MSPB]’s jurisdiction” shall she have the
right to a hearing or a filing of written submissions which
may be supported by facts learned during discovery.
Resp’t’s App. 25, see id. at 25−27.
CONCLUSION
We have considered Ms. Clark’s remaining arguments
and find them unpersuasive. For these reasons, the Final
Decision of the Merit Systems Protection Board is
AFFIRMED
COSTS
Each party shall bear its own costs.