Dannice E. Clark v. United States Postal Service
2016 MSPB 26
| MSPB | 2016Background
- Appellant, a USPS Distribution Clerk, appealed after the agency denied restoration following an OWCP-related absence and a partial medical release; she alleged she was partially rehabilitated, returned on April 13, 2015, but was sent home and remained off work through August 17, 2015.
- The administrative judge issued an acknowledgment order and a jurisdictional order explaining the nonfrivolous-allegation standard and directing the appellant to submit evidence and argument to meet her jurisdictional burden; the appellant did not timely respond.
- The administrative judge dismissed the appeal for lack of Board jurisdiction without holding a hearing; the appellant filed a petition for review and attached materials she said were submitted below but were not part of the record.
- The Board reviews whether an agency’s denial of restoration to a partially recovered employee was arbitrary and capricious; after a 2015 rule change, appellants need only make nonfrivolous allegations of jurisdiction to obtain a hearing.
- The Board found appellant’s initial pleading potentially sufficient on elements 1–3 (compensable injury, partial recovery, denial of restoration) but conclusory and unsupported on element 4 (agency acted arbitrarily and capriciously), constituting pro forma allegations.
- The Board denied the petition for review, modified the initial decision only to correct the description of the post-2015 jurisdictional standard, and upheld the dismissal for lack of jurisdiction; it also rejected arguments that the dismissal was an improper failure-to-prosecute sanction or that the appellant was denied discovery.
Issues
| Issue | Clark's Argument | USPS's Argument | Held |
|---|---|---|---|
| Jurisdictional standard for restoration appeals | Appellant implicitly contends she met jurisdictional requirements and should have been given a hearing | Agency argues appellant failed to make nonfrivolous allegations required under 5 C.F.R. §1201.57 | Board: Post‑March 30, 2015, appellants need nonfrivolous allegations; appellant failed to meet that standard (modified initial decision to correct judge’s wording) |
| Sufficiency of pleadings (nonfrivolous vs pro forma) | Appellant asserts her initial pleading and grievance form (medical release, light duty) suffice | Agency contends allegations were conclusory and lacked factual support for arbitrary and capricious element | Board: Allegations on elements 1–3 were borderline but element 4 lacked factual support; overall pro forma and insufficient to establish jurisdiction |
| Dismissal as premature/failure to prosecute | Appellant argues dismissal was improper and compares to Bilandzich (received hearing despite procedural omissions) | Agency emphasizes appellant did not meet jurisdictional burden despite being ordered to do so; no duty to give second chance | Board: Distinguishable from Bilandzich; dismissal proper because appellant failed to meet jurisdictional burden after being ordered to do so |
| Right to discovery before dismissal | Appellant argues judge should have allowed discovery prior to dismissing appeal | Agency notes acknowledgement order provided discovery instructions and appellant did not pursue discovery or motions to compel | Board: Acknowledgment order and rules permit parties to initiate discovery without Board intervention; failure to pursue discovery was not the judge’s fault |
Key Cases Cited
- Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097 (Fed. Cir. 2011) (Board has jurisdiction to review whether denial of restoration to partially recovered employee was arbitrary and capricious)
- Latham v. U.S. Postal Service, 117 M.S.P.R. 400 (MSPB 2012) (agency’s failure to adhere to substantive restoration obligations is per se arbitrary and capricious)
- Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365 (MSPB 2016) (articulation of nonfrivolous‑allegation standard for restoration appeals)
- Lara v. Department of Homeland Security, 101 M.S.P.R. 190 (MSPB 2006) (pro forma allegations are insufficient to meet nonfrivolous standard)
- Bilandzich v. Department of the Army, 111 M.S.P.R. 301 (MSPB 2009) (dismissal for lack of jurisdiction may be treated as dismissal for failure to prosecute when appellant already met jurisdictional burden)