Lewis v. MSPB , 603 F. App'x 1007 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHNNIE LEWIS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
UNITED STATES POSTAL SERVICE,
Intervenor
______________________
2014-3108
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0353-12-0349-I-1.
______________________
Decided: May 13, 2015
______________________
JOHNNIE LEWIS, Chicago, IL, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
HEIDI L. OSTERHOUT, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
2 LEWIS v. MSPB
Washington, DC, for intervenor. Also represented by
BENJAMIN MARK MOSS, JOYCE R. BRANDA, ROBERT E.
KIRSCHMAN, JR., FRANKLIN E. WHITE, JR.
______________________
Before REYNA, SCHALL, and HUGHES, Circuit Judges.
PER CURIAM.
DECISION
Johnnie Lewis petitions for review of the final deci-
sion of the Merit Systems Protection Board (“Board”) that
dismissed his appeal for lack of jurisdiction. We affirm.
DISCUSSION
I.
Mr. Lewis is a Mail-Processing Clerk employed by the
Postal Service (“agency”) at its Cardiss Collins Processing
and Distribution Center (“P&DC”) in Chicago, Illinois.
On March 9, 2012, he appealed to the Board alleging that
the agency had failed to restore him to duty after his
partial recovery from an on-the-job injury. He also al-
leged that the agency constructively suspended him from
duty from February 12, 2012, to March 9, 2012, the date
of his appeal. On December 10, 2012, the administrative
judge (“AJ”) to whom the appeal was assigned issued an
initial decision in which she dismissed the appeal for lack
of jurisdiction. Lewis v. U.S. Postal Serv., No. CH-0353-
12-0349-I-1 (M.S.P.B. Dec. 10, 2012) (“Initial Decision”).
II.
The AJ first addressed Mr. Lewis’s restoration claim.
In order for a partially recovered employee to establish
Board jurisdiction over a restoration appeal, the employ-
ee must prove by a preponderance of the 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 in a less physically demanding posi-
LEWIS v. MSPB 3
tion; (3) the agency denied his request for restoration; and
(4) the agency’s denial was arbitrary and capricious
because the agency failed 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). As noted in Bledsoe,
pursuant to § 353.301(d), an agency is required to make
“every effort to restore” a partially recovered employee “in
the local commuting area” and “according to the circum-
stances in each case.” Id. at 1103.
Mr. Lewis suffered an on-the-job back injury in 1973.
Following his return to work, he was the successful bidder
on a manual-clerk position in the P&DC’s Manual Letters
Unit. This position was compatible with all his medical
restrictions resulting from the 1973 injury. Mr. Lewis
held this position for 35 years until the agency abolished
all manual-clerk positions on August 27, 2011. After the
agency abolished the manual-clerk positions, it replaced
them with new non-traditional full-time (“NTFT”) manu-
al-clerk positions (“NTFT positions”). The evidence was
undisputed that the NTFT positions have the same du-
ties, qualifications, physical requirements, and pay level
as the position that Mr. Lewis held for 35 years. The only
difference is that the set hours of work of the new posi-
tions are 10 hours per day, 4 days per week. The abol-
ished positions had set hours of work of 8 hours per day, 5
days per week. The agency posted the NTFT positions for
bid in October and November of 2011 and in February of
2012. Mr. Lewis did not bid for any of the positions,
however. The agency stated that, if Mr. Lewis had bid on
a position, he would have received it, due to his seniority.
Based upon the record before her, the AJ held that the
Board lacked jurisdiction over Mr. Lewis’s restoration
claim because Mr. Lewis had failed to make a non-
frivolous allegation that he was denied restoration upon
recovery from his compensable injury. Initial Decision
at 7. “The appellant was offered more than 100 equiva-
lent positions and he refused them,” the AJ stated. Id.
4 LEWIS v. MSPB
at 6. In arriving at her decision, the AJ rejected as “not
credible” Mr. Lewis’s assertion that he did not bid on any
of the posted positions because of his health and age. Id.
at 5. Citing Hardy v. United States Postal Service, 72
M.S.P.R. 71, 74 (1996), aff’d, 114 F.3d 1207 (Fed. Cir.
1997), the AJ also held that, because Mr. Lewis had failed
to establish Board jurisdiction over his appeal, the Board
could not assume jurisdiction over his related discrimina-
tion claim. Initial Decision at 7.
With respect to Mr. Lewis’s suspension from work
claim, the AJ found that, because Mr. Lewis himself
repeatedly requested leave during the period from Febru-
ary 12, 2012, through March 9, 2012, he failed to make a
non-frivolous allegation that the agency suspended him
from work. Id. at 9.
On March 7, 2014, the Board denied Mr. Lewis’s peti-
tion for review and affirmed the Initial Decision. Lewis v.
U.S. Postal Serv., No. CH-0353-12-0349-I-1 (M.S.P.B.
Mar. 7, 2014). As a result, the Initial Decision became the
final decision of the Board. This appeal followed. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
III.
Our scope of review in an appeal from a decision of
the Board is limited. We must affirm the Board’s decision
unless we find it to be (1) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t
of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir.
1998).
IV.
As seen, consistent with our decision in Bledose, the
Board held that it lacked jurisdiction over Mr. Lewis’s
appeal and his related discrimination claim because Mr.
LEWIS v. MSPB 5
Lewis failed to make a non-frivolous allegation that he
was denied restoration upon recovery from his compensa-
ble injury. Supporting the Board’s holding is the AJ’s
finding that Mr. Lewis had the opportunity of bidding on
more than 100 positions that were compatible with his
medical restrictions and that were equivalent to his prior
manual-clerk position, but that he chose not to do so.
That finding, in turn, is based upon undisputed evidence
of record. In addition, the AJ rejected as “not credible”
Mr. Lewis’s assertion that his health and age prevented
him from working in any of the posted positions. On
appeal, Mr. Lewis has failed to demonstrate that the
findings of fact underlying the Board’s holding that it
lacked jurisdiction are not supported by substantial
evidence. The Board’s final decision must therefore be
affirmed.
AFFIRMED
No Costs.