Angel David Morales v. United States Postal Service

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

ANGEL DAVID MORALES, DOCKET NUMBER
Appellant, NY-0353-14-0030-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: March 31, 2015
Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Angel David Morales, Guaynabo, Puerto Rico, pro se.

Leslie L. Rowe, Esquire, New York, New York, 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
found that the Board lacks jurisdiction over his claims that the agency failed to
properly credit him for annual and sick leave, Social Security benefits, Thrift
Savings Plan (TSP) contributions, Medicare, retirement, and life insurance after
he returned to work following full recovery from a compensable injury after more

1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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

than 16 years. 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 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. We AFFIRM the initial
decision as MODIFIED by this order to add further analysis supporting the
administrative judge’s conclusion that the appellant did not make a nonfrivolous
allegation that the agency violated his restoration rights. We have considered the
appellant’s alternative assertion that the Board has jurisdiction over the agency’s
decision not to award him retirement credit as an administrative action or order
affecting his rights or interests under federal retirement law, but we conclude that
the Board lacks jurisdiction over this claim in the absence of a final decision from
the Office of Personnel Management (OPM).

DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The following facts are undisputed: (1) the appellant was injured while on
duty as a Distribution Window Clerk on or around February 27, 1997; (2) at the
time he was injured, he was a Grade 05, Step K level and had a salary of
$35,409.00; (3) he received Office of Workers’ Compensation Programs (OWCP)
payments until approximately September 16, 2013, when he was restored to a
Distribution Window Clerk position at the Grade 6, Step O level with a salary of
 3

$54,777.00; (4) on September 21, 2013, he was awarded the Sales and Services
Distribution Associate position that he had bid on, with the same annual base
salary, grade, and step. See Initial Appeal File (IAF), Tab 19, Exhibits A-C. The
appellant apparently filed two separate Board appeals in October 2013, but only
one docket number was generated. See IAF, Tab 1. In the first appeal, the
appellant alleged that the agency did not properly credit him for annual and sick
leave, Social Security, TSP contributions, Medicare, retirement, and life
insurance, for the duration of his time that he had received OWCP benefits, he
checked the box indicating that the agency action that he was appealing was
“[f]ailure to restore/reemploy/reinstate or improper restoration/reemployment/
reinstatement,” and he relied on 5 U.S.C. § 8151(a) and 5 C.F.R. §§ 353.107,
353.304(a) to support his assertions. See IAF, Tab 1 at 1-8. The second appeal
contained the same factual narrative as the first appeal, but the appellant appeared
to be appealing an OPM or agency retirement decision or action. See id. at 9-17.
¶3 The administrative judge issued an initial decision that dismissed the appeal
for lack of jurisdiction. IAF, Tab 28, Initial Decision (ID). In pertinent part, she
found that the appellant’s two appeals were “duplicative,” and she primarily
analyzed the appellant’s assertions as a potential restoration appeal. See ID at 2
n.2. The administrative judge discussed relevant precedent from the Board and
the U.S. Court of Appeals for the Federal Circuit, and she concluded that the
appellant did not make a nonfrivolous allegation of Board jurisdiction over his
restoration appeal. See ID at 6-10. She briefly added that the appellant failed to
make a nonfrivolous allegation that his retirement had been affected. ID at 9. In
light of her jurisdictional ruling, the administrative judge stated that she need not
consider the appellant’s allegation that the agency failed to notify him of his
Board appeal rights pertaining to an alleged improper restoration, and, in any
event, the appellant had failed to explain how his substantive rights were
prejudiced. See ID at 10 n.5.
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¶4 The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 1, 3-4. On review, the appellant argues generally that the Board has
jurisdiction under two theories: (1) under its authority to review whether the
agency satisfied its restoration obligations pursuant to 5 U.S.C. § 8151(a) and
OPM’s implementing regulations; and (2) under its authority to review
determinations affecting an individual’s rights or interests under federal
retirement law. PFR File, Tab 1. He largely reiterates his arguments made
below, and he also includes excerpts from the agency’s Employee and Labor
Relations Manual (ELM), the OPM Civil Service Retirement System (CSRS) and
Federal Employees’ Retirement System (FERS) Handbook, and statements from
the Social Security Administration and Federal Retirement Thrift Investment
Board. See id., Exhibits 1-4.
¶5 The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears
the burden to show that the Board has jurisdiction over the appeal. 5 C.F.R.
§ 1201.56(a)(2)(i). For the following reasons, we agree that the appellant did not
make a nonfrivolous allegation of improper restoration pursuant to 5 U.S.C.
§ 8151(a). We further find that the appellant has not been subjected to an
appealable administrative action or order affecting his interests under federal
retirement law at this time; however, however, we notify him that he may raise
these claims under federal retirement law to OPM for consideration.

The appellant did not make a nonfrivolous allegation that the agency violated his
restoration rights as described in 5 U.S.C. § 8151(a).
¶6 The Federal Employees’ Compensation Act (FECA) provides, among other
things, that federal employees who suffer compensable injuries enjoy certain
restoration rights. Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 9 (2012);
see 5 U.S.C. § 8151. Congress has explicitly granted OPM the authority to issue
 5

regulations governing agencies’ obligations in this regard, and OPM has issued
regulations requiring agencies to make certain efforts toward restoring
compensably injured individuals to duty, depending on the timing and extent of
their recovery. Latham, 117 M.S.P.R. 400, ¶ 9; see 5 U.S.C. § 8151; 5 C.F.R.
§ 353.301. 2
¶7 We have considered the appellant’s assertion that the agency, upon his
reemployment, failed to properly credit him for sick and annual leave, Social
Security benefits, Medicare, TSP contributions, retirement, and life insurance for
the 16 years that he was receiving OWCP benefits pursuant to 5 U.S.C. § 8151(a)
and 5 C.F.R. §§ 353.107, 353.304(a). Pursuant to 5 U.S.C. § 8151(a), an
individual who returns to duty following a compensable injury is entitled to
service credit for the periods of leave without pay (LWOP) or separation during
which he received OWCP compensation. In pertinent part, section 8151(a) states
that the entire time during which the employee was receiving compensation under
5 U.S.C. chapter 81 shall be credited to the employee for the purposes of
within-grade step increases, retention purposes, and other rights and benefits
based upon length of service. 3 The issue before us is whether “other rights and

2
For instance, an employee, like the appellant, who is separated because of a
compensable injury and whose full recovery takes longer than 1 year from the date
eligibility for compensation began, is entitled to priority consideration, agencywide, for
restoration to the position he left or an equivalent one provided he applies for
reappointment within 30 days of the cessation of compensation. 5 C.F.R. § 353.301(b);
see 5 U.S.C. § 8151(b)(2). An injured employee in the executive branch, including the
U.S. Postal Service, who believes that his reemployment priority rights have been
violated, may appeal to the Board under the provisions of the Board’s regulations.
Nevins v. U.S. Postal Service, 107 M.S.P.R. 595, ¶ 10 (2008); see 5 C.F.R.
§ 353.304(a). The appellant does not appear to have alleged below that the agency
violated h is reemployment priority rights.
3
The regulation at 5 C.F.R. § 353.107, which generally tracks the language of section
8151(a), see Gallo v. United States, 529 F.3d 1345, 1349 (Fed. Cir. 2008), states that,
upon reemployment, an employee absent because of a compensable injury is generally
entitled to be treated as though he had never left, and such an individual receives credit
for the entire period of the absence for purposes of rights and benefits based upon
 6

benefits based upon length of service” in section 8151(a) includes sick and annual
leave, Social Security benefits, Medicare, TSP contributions, retirement, and life
insurance. We conclude that the answer is no.
¶8 Regarding the appellant’s assertion that he was entitled to retirement credit,
we have considered precedent from the Board and the Federal Circuit that
analyzes 5 U.S.C. § 8151(a). Based on our review of this precedent, we find that
FERS retirement credit is not a right or benefit based upon the appellant’s length
of service. 4 As noted by the administrative judge in the initial decision, ID at 9,
our reviewing court, in True v. Office of Personnel Management, 926 F.2d 1151,
1156 (Fed. Cir. 1991), concluded that neither section 8151(a) nor section 8332(f)
permits non-actual service to be counted toward the 5-year actual reemployment
requirement of 5 U.S.C. § 8344(a). In reaching its conclusion, the court analyzed
the legislative history of section 8151(a). True, 926 F.2d at 1155-56. The court
noted that: (1) the original proposed legislation provided that the time an
individual spent receiving OWCP benefits also would be credited for the purpose
of “annuity computation under the civil service retirement provisions”; (2) the
Senate passed the legislation with an amendment that struck out “annuity
computation under the civil service retirement provisions”; and (3) the House
concurred in the Senate amendments, including the deletion of the provision
regarding civil service retirement in section 8151(a). See id. at 1155. Based on
this legislative history, the court concluded that Congress expressly considered
and rejected the possibility of allowing FECA beneficiaries to count non-actual
service toward fulfilling the retirement annuity credit requirements of section
8344(a). Id. at 1156.

seniority and length of service, including with in-grade increases, career tenure,
completion of probation, leave rate accrual, and severance pay.
4
The record reflects that the appellant is covered by FERS. See, e.g., IAF, Tab 1 at 12,
Tab 8 at 10 (the appellant’s Postal Service Form 50(PS-50)).
 7

¶9 The appellant asserted below that True was inapplicable because it involved
reemployed annuitants. See IAF, Tab 20 at 15-16. Although it is accurate that
Mr. True was a reemployed annuitant, the court subsequently expanded the
holding of True to cases that did not involve reemployed annuitants. In Gallo v.
Department of Transportation, 689 F.3d 1294 (Fed. Cir. 2012), the court
addressed a situation in which the employee, like the appellant, had fully
recovered after more than 1 year and sought retirement credit for the time that she
had received OWCP benefits. The court rejected Ms. Gallo’s argument that,
pursuant to 5 C.F.R. § 353.107, she was entitled to retirement credit that she
would have received had she not been injured, explaining that it “unequivocally
held in True that § 8151(a) does not encompass civil service retirement credit, a
right based on actual employment time, not including time that an employee was
receiving OWCP compensation.” 689 F.3d at 1300, 1302-03 (citing True,
926 F.2d at 1156). Because decisions from the Federal Circuit are controlling
authority for the Board, Fairall v. Veterans Administration, 33 M.S.P.R. 33, 39,
aff’d, 844 F.2d 775 (Fed. Cir. 1987), we conclude that the appellant’s claims for
retirement credit do not constitute a nonfrivolous allegation of Board jurisdiction
over restoration matters pursuant to 5 U.S.C. § 8151(a).
¶10 We also have considered the appellant’s argument that Hatch v. Office of
Personnel Management, 100 M.S.P.R. 204 (2005), is applicable to this matter.
See PFR File, Tab 1 at 24-25. We disagree. Hatch addressed the issue of
whether a partially-recovered employee who receives OWCP benefits while
working part-time should be treated as a full-time employee for the purpose of
computing retirement benefits. The Board’s decision to credit as full-time service
for retirement purposes Mr. Hatch’s part-time work schedule is not relevant to
our assessment of whether 5 U.S.C. § 8151(a) grants the Board jurisdiction to
consider the appellant’s assertion that he should receive retirement credit for the
entire time that he was out on LWOP and receiving OWCP benefits. See Palmer
v. Merit Systems Protection Board, 550 F.3d 1380, 1385 (Fed. Cir. 2008)
 8

(explaining that the Board’s decision in Hatch had “no bearing” on whether the
Board has jurisdiction over Mr. Palmer’s appeal of improper restoration following
partial recovery from a compensable injury).
¶11 Regarding the appellant’s assertion on review that the agency should have
credited him with sick and annual leave, both the Federal Circuit and the Board
have concluded that sick and annual leave are not rights and benefits based on
length of service under 5 U.S.C. § 8151(a). See Palmer, 550 F.3d at 1384-85;
Burtch v. U.S. Postal Service, 47 M.S.P.R. 518, 521, aff’d, 949 F.2d 404 (Fed.
Cir. 1991) (Table).
¶12 The parties agreed below that the appellant was entitled to a leave accrual
rate based on his more than 16 years of federal employment, which would include
the time for which he received OWCP benefits. See IAF, Tab 5 at 1-2. To the
extent that the appellant argues on review that he is entitled to leave accrual in
this regard, PFR File, Tab 1 at 8-9, he has not nonfrivolously alleged a basis for
Board jurisdiction because the record reflects that he is properly accruing leave at
a rate of 8 hours per pay period, see IAF, Tab 11 at 12 (the appellant’s September
2013 PS-50); IAF, Tab 8 at 18 (ELM 512.311 stating that an employee should
earn 8 hours of annual leave with 15 years or more of creditable service); see also
Palmer, 550 F.3d at 1384-85 (“The rate at which leave accrues during each pay
period is a benefit based on length of service.”); Burtch, 47 M.S.P.R. at 521
(same).
¶13 The appellant has relied on various provisions of the ELM and excerpts
from OPM’s Guide to Processing Personnel Actions to support his assertion that
he should have been credited for leave, Social Security benefits, TSP
contributions, Medicare, and life insurance. See PFR File, Tab 1; IAF, Tab 20.
We have considered these references, but none persuade us that these benefits are
based on length of service under 5 U.S.C. § 8151(a). For example, the appellant
cited numerous ELM provisions regarding back pay awards, see PFR File, Tab 1
at 13-14; IAF, Tab 20 at 11-12; however, the appellant did not receive a back pay
 9

award, and, thus, those provisions are inapplicable. Additionally, the appellant
cited ELM 512.91 for the proposition that an employee who returns to pay and
duty status following a suspension period or an involuntary separation is entitled
to have annual leave recredited, see PFR File, Tab 1 at 12; IAF, Tab 20 at 9-10;
however, the appellant was not suspended or involuntarily separated.
¶14 For these reasons, we conclude that the appellant has not nonfrivolously
alleged that the Board has jurisdiction over the appeal as a claim of improper
restoration pursuant to 5 U.S.C. § 8151(a).

The Board lacks jurisdiction over the appellant’s assertion that the agency’s
decision not to award him retirement credit is an administrative action or order
affecting his rights and interests under federal retirement law.
¶15 We have considered the appellant’s alternative theory that the agency’s
decision not to award him retirement credit for the time that he received OWCP
benefits constitutes an administrative action or order affecting an individual’s
rights or interests under federal retirement law. PFR File, Tab 1 at 5;
see 5 U.S.C. § 8461(e); 5 C.F.R. § 1201.3(a)(2). As support for his assertion, the
appellant relied on section 582.4 of the ELM and 5 U.S.C. § 8332(f), both of
which appear to allow retirement credit for time spent receiving OWCP benefits.
IAF, Tab 20 at 6-9; PFR, Tab 1 at 6-8, 36 (section 582.4 of the ELM).
Additionally, the appellant referred to OPM’s CSRS and FERS Handbook, which
states that a federal employee who is not an annuitant who returns to federal
service after a period of separation is deemed to have been in a LWOP status
during that part of the separation period in which he received workers’
compensation benefits, and the period of deemed LWOP is creditable for years of
service counted towards eligibility and computation of benefits, and in the
computation of the high-3 salary. See OPM CSRS and FERS Handbook,
§ 102A3.1-1B, available at http://www.opm.gov/retirement-services/publications-
forms/csrsfers-handbook/c102.pdf?nocache=1 (last visited Mar. 24, 2015).
 10

¶16 Ordinarily, an appeal of an administrative action or order affecting an
individual’s rights or interests under a federal retirement system arises from an
OPM decision. Mandarino v. Department of Homeland Security, 118 M.S.P.R.
510, ¶ 7 (2012). Here, however, there is no OPM decision regarding the
appellant’s assertion that he was entitled to retirement credit, and there is no
evidence that OPM or Congress delegated to the agency the authority to
determine his entitlement to retirement credit as a matter of retirement law. Cf.
Adams v. Department of Defense, 688 F.3d 1330, 1335-36 (Fed. Cir. 2012) (the
appeal of an adverse Voluntary Early Retirement Authority ruling by the agency
is within the Board’s jurisdiction because Congress delegated such authority to
the agency); Mandarino, 118 M.S.P.R. 510, ¶ 7 (explaining that when an
employing agency makes a decision on a request for enhanced retirement
coverage under a delegation of authority from OPM, it “stands in OPM’s place,”
and the appeal is from the employing agency’s decision). 5
¶17 In the absence of an OPM decision, the Board lacks jurisdiction over the
appellant’s request to receive retirement credit for the 16 years that he received
OWCP benefits. However, we notify the appellant that he may request OPM to
make a determination on his entitlement to retirement credit.

Other issues
¶18 The Board generally will not consider evidence submitted for the first time
with the petition for review absent a showin g that it was unavailable before the
record was closed despite the party’s due diligence. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980). The appellant has not made such a showing.
Moreover, he has not persuaded us that his TSP documentation, which appears to
be dated after the initial decision was issued, warrants an outcome different from

5
There does not appear to be any meaningful difference between the relevant FERS
provision in Adams, 5 U.S.C. § 8461(e), and the CSRS provision in Mandarino,
5 U.S.C. § 8347(d).
 11

that of the initial decision. See Russo v. Veterans Administration, 3 M.S.P.R.
345, 349 (1980).
¶19 In light of our disposition, we need not address the appellant’s assertion on
review that the agency was obligated to provide him with Board appeal rights.
See PFR File, Tab 1 at 20-21.

NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. 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 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
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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 court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.