Carissima M. Pettus v. Department of the Navy

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CARISSIMA M. PETTUS,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2022-1880
______________________
Petition for review of the Merit Systems Protection
Board in Nos. DC-0353-13-0409-B-1, DC-0752-16-0763-I-1.
______________________
Decided: July 13, 2023
______________________
CARISSIMA M. P ETTUS , Williamsburg, VA, pro se.
K RISTIN ELAINE O LSON, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, P ATRICIA M. MCCARTHY , F RANKLIN E. WHITE, J R.
______________________
Before STOLL , L INN, and STARK, Circuit Judges.
P ER CURIAM .
Case: 22-1880 Document: 36 Page: 1 Filed: 07/13/2023

-- 1 of 10 --

PETTUS v. NAVY 2
Carissima M. Pettus appeals the final decision of the
Merit Systems Protection Board that affirmed two initial
decisions, one granting Ms. Pettus backpay in a restoration
appeal and the other dismissing her constructive suspen-
sion appeal. Pettus v. Dep’t of the Navy, Nos. DC-0353-13-
0409-B-1, DC-0752-16-0763-I-1, 2022 WL 1046962, at *1
(M.S.P.B. Apr. 4, 2022) (Board Decision). For the reasons
below, we affirm.
BACKGROUND
On November 30, 2011, Ms. Pettus suffered an injury
while working as a police officer at the Naval Weapons Sta-
tion Yorktown. She underwent reconstructive shoulder
surgery and returned to work in a limited duty position but
then suffered a recurrence of her injury. On November 26,
2012, Ms. Pettus’s surgeon informed her that she reached
maximum medical improvement, i.e., that her shoulder in-
jury would not improve further. Her now permanent re-
strictions disqualified her from being a police officer.
Shortly after, on November 29, 2012, Ms. Pettus asked
the Department of the Navy (the agency) to restore her to
duty, specifically requesting a Program Support Assistant
position. The agency denied her request. Ms. Pettus ap-
pealed, alleging that the agency (1) failed to restore her to
duty in violation of 5 C.F.R. § 353.301(c) and (2) discrimi-
nated against her based on her disability. Under 5 C.F.R.
§ 353.301(c), “[a]n individual who is physically disqualified
for the former position or equivalent because of a compen-
sable injury, is entitled to be placed in another position for
which qualified that will provide the employee with the
same status, and pay, or the nearest approximation
thereof, consistent with the circumstances in each case.”
On December 23, 2013, with the restoration appeal on-
going, the agency offered Ms. Pettus a Security Assistant
position. Pettus v. Dep’t of the Navy, No. 0353-13-0409-B-
1, 2016 MSPB LEXIS 4436, at *9–10 (M.S.P.B. July 29,
Case: 22-1880 Document: 36 Page: 2 Filed: 07/13/2023

-- 2 of 10 --

PETTUS v. NAVY 3
2016) (Restoration Decision). She accepted on Decem-
ber 24, 2013, and began working on January 13, 2014. Id.;
Pet. Br. 51. The agency later removed Ms. Pettus from the
Security Assistant position. Restoration Decision,
2016 MSPB LEXIS 4436, at *3 n.2.2
Relevant here, for her restoration appeal, the Adminis-
trative Judge (AJ) set forth discovery deadlines and
granted several agency requests, including a 30-day con-
tinuance and a motion to compel discovery. Board Deci-
sion, 2022 WL 1046962, at *4. Ms. Pettus failed to comply
with the AJ’s order compelling discovery. Restoration De-
cision, 2016 MSPB LEXIS 4436, at *6. Consequently, the
AJ sanctioned Ms. Pettus by dismissing her disability dis-
crimination claim. Id.
Ultimately, the AJ found that the agency failed to re-
store Ms. Pettus as required by 5 C.F.R. § 353.301(c). Id.
at *10. The AJ ordered backpay from November 29, 2012
(when Ms. Pettus requested restoration) to December 23,
2013 (the day before Ms. Pettus accepted the Security As-
sistant position). Id. at *10–11.
Separately, Ms. Pettus filed a constructive suspension
appeal pro se, alleging that the agency constructively sus-
pended her for more than fourteen days. Appx. 78–81.3
The AJ dismissed her claim, explaining that Ms. Pettus’s
“rights and remedies regarding the time period for which
she claims [constructive suspension] . . . are subsumed in
the restoration appeal process.” Pettus v. Dep’t of the Navy,
1 “Pet. Br.” refers to pages in Ms. Pettus’s informal
opening brief as numbered by operation of an electronic file
viewing system.
2 Ms. Pettus appealed this removal, but the admin-
istrative judge dismissed it as untimely. Pet. Br. 9.
3 “Appx.” refers to the appendix filed concurrently
with Respondent’s brief.
Case: 22-1880 Document: 36 Page: 3 Filed: 07/13/2023

-- 3 of 10 --

PETTUS v. NAVY 4
No. DC-0752-16-0763-I-1, 2016 MSPB LEXIS 5088,
at *12–16 (Constructive Suspension Decision).
Ms. Pettus then appealed both her restoration and con-
structive suspension appeals, again pro se. Board Decision,
2022 WL 1046962, at *1. The Board combined the appeals,
per 5 C.F.R. § 1201.36(b), and affirmed the AJ’s initial de-
cisions. Id.
First, the Board rejected Ms. Pettus’s argument that
the AJ should have ordered the agency to retroactively
place her in the Program Support Assistant position she
previously requested. Id. at *3. The Board found that, be-
cause the agency removed Ms. Pettus from the Security As-
sistant position for cause unrelated to the matters on
appeal, she was not entitled to retroactive restoration. Id.
Second, the Board rejected Ms. Pettus’s argument that
the AJ’s sanction in her restoration appeal––striking her
disability discrimination claim––was untimely and preju-
dicial. Id. The Board found that the AJ did not abuse her
discretion in imposing a sanction after Ms. Pettus repeat-
edly failed to comply with the AJ’s orders. Id.4
Third, the Board interpreted Ms. Pettus’s argument as
implying that the AJ was biased in granting the agency a
30-day continuance in the restoration appeal. Board Deci-
sion, 2022 WL 1046962, at *4. The Board found that
Ms. Pettus failed to show bias, noting that the AJ extended
deadlines for both parties due to the agency’s scheduling
conflict. Id.
Lastly, the Board rejected Ms. Pettus’s challenges to the
dismissal of her constructive suspension appeal. Id. The
Board explained that a constructive suspension claim is
4 Ms. Pettus has since chosen to abandon her disa-
bility discrimination claim in order for this court to have
jurisdiction. See ECF No. 18 at 3.
Case: 22-1880 Document: 36 Page: 4 Filed: 07/13/2023

-- 4 of 10 --

PETTUS v. NAVY 5
generally subsumed in a restoration claim when both are
based on the same absence. Id. (citing Kinglee v. U.S.
Postal Serv., 114 M.S.P.R. 473, ¶¶ 19–22 (2010)).
Ms. Pettus appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703.
D ISCUSSION
Our authority to review a final Board decision is statu-
torily limited. We may only set aside a final Board decision
if it is “(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). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Consol. Edison Co. of N.Y.
v. N.L.R.B., 305 U.S. 197, 229 (1938).
Ms. Pettus raises several issues on appeal. First, she
contends that her entitlement to return to a “complete sta-
tus quo” requires retroactive restoration to the Program
Support Assistant position she requested on November 29,
2012. Pet. Br. 5–6; see Resp. Br. 11. Second, she argues
that the AJ abused her discretion in procedural matters.
Pet. Br. 7–8. Third, she challenges the removal of her dis-
ability discrimination claim as a discovery sanction. Pet.
Br. 8–9. Lastly, she challenges the dismissal of her con-
structive suspension appeal, contending that the Board
erred in stating that the dates of her constructive discharge
appeal and restoration appeal were the same. Pet. Br. 9.
We address each issue in turn.5
5 Ms. Pettus also argues that the Board erroneously
stated that her restoration appeal was under 5 C.F.R.
§ 353.304(c), instead of § 353.301(c). Pet. Br. 9. But the
Board properly considered Ms. Pettus’s restoration under
Case: 22-1880 Document: 36 Page: 5 Filed: 07/13/2023

-- 5 of 10 --

PETTUS v. NAVY 6
First, we address Ms. Pettus’s retroactive restoration
argument. Restoration requires placement to a position
that is the “same . . . or the nearest approximation thereof,”
in other words, the status quo. § 353.301(c). Ms. Pettus
argues that returning her to the status quo requires retro-
actively restoring her to the Program Support Assistant po-
sition she initially requested, explaining that “but for[] the
agency’s improper restoration . . . she would not have been
removed” from the Security Assistant position. Pet Br. 9;
see Pet. Br. 6. She also argues that the Board incorrectly
stated that her removal was not substantially related to
her compensable injury. Pet. Br. 6, 19.
As the Board correctly explained, an employee removed
for cause, rather than for reasons substantially related to
their compensable injury, is not entitled to restoration.
Board Decision, 2022 WL 1046962, at *3 (citing Manning
v. U.S. Postal Serv., 118 M.S.P.R. 313, ¶ 8 (2012)). Here,
the Board determined that “[t]he record reflects” that
Ms. Pettus was removed “for misconduct unrelated to the
matters on appeal,” and thus was not entitled to restora-
tion. Board Decision, 2022 WL 1046962, at *3. But the
§ 353.301(c) and only referenced § 353.304 to clarify a bur-
den of proof standard. Board Decision, 2022 WL 1046962,
at *3 n.3. Thus, there is no error.
Additionally, Ms. Pettus argues that the Board incor-
rectly found that she never appealed her removal. Pet.
Br. 9. As Ms. Pettus notes, she appealed her removal and
it was dismissed as untimely. Pettus v. Dep’t of the Navy,
DC-0752-17-0156-I-1, 2016 WL 7508803 (M.S.P.B. Dec. 29,
2016). However, that removal, or any subsequent appeal
for it, is not before us. See Board Decision, 2022 WL
1046962, at *1 (listing only Restoration Decision and Con-
structive Suspension Decision on appeal to the Board);
Appx. 5 (listing only that Board’s decision on appeal to this
court).
Case: 22-1880 Document: 36 Page: 6 Filed: 07/13/2023

-- 6 of 10 --

PETTUS v. NAVY 7
Board only cites to the AJ’s decision for support, which
states that the “parties informed [the AJ] that [Ms. Pettus]
was subsequently removed from the . . . Security Assistant
position, effective May 27, 2015, and that she did not file
an appeal with the Board from that action.” Restoration
Decision, 2016 MSPB LEXIS 4436, at *3 n.2. That is not
evidence supporting a finding that Ms. Pettus’s removal
was substantially unrelated to her compensable injury,
much less substantial evidence. However, the Board’s er-
ror is harmless.
The harmless error rule serves to “avoid wasteful pro-
ceedings on remand where there is no reason to believe a
different result would have been obtained had the error not
occurred.” In re Watts, 354 F.3d 1362, 1369 (Fed. Cir.
2004); see 28 U.S.C. § 2111. In Shinseki v. Sanders,
556 U.S. 396, 411–12 (2009), the Supreme Court laid out
several factors that may inform a reviewing court’s harm-
less error analysis, including “the likelihood that the result
would have been different.” Normally, the party attacking
an agency’s determination bears the burden of showing
that an error is harmful. Id. at 409. Thus, Ms. Pettus has
the burden of showing that correcting the Board’s error
would likely yield a different result.
Ms. Pettus does not meet her burden to show that the
Board’s error was harmful. She argues that her removal
was related to her injury because, but for “improper resto-
ration” to the Security Assistant position, “she would not
have been removed.” Pet. Br. 9. This argument does not
tie her compensable injury to the reason for her removal.
In other words, Ms. Pettus presents no evidence that her
removal from the Security Assistant position was related
to her injury. We therefore find the Board’s error harmless
and do not disturb this portion of its decision.
We now turn to Ms. Pettus’s argument that the AJ
abused her discretion when she granted the agency an ex-
tension of time to respond to certain matters. Pet. Br. 7.
Case: 22-1880 Document: 36 Page: 7 Filed: 07/13/2023

-- 7 of 10 --

PETTUS v. NAVY 8
The Board explained that the AJ granted the agency (and
Ms. Pettus) a 30-day extension based on a scheduling con-
flict. Board Decision, 2022 WL 1046962, at *4. “Proce-
dural matters relative to discovery . . . fall within the sound
discretion of the [B]oard and its officials.” Curtin v. Off. of
Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988) (cita-
tions omitted). And these kinds of extensions are regularly
granted. See Roberts v. Off. of Pers. Mgmt., 250 F. App’x
346, 349 (Fed. Cir. 2007) (nonprecedential) (noting that it
is not unusual for an extension of time to be granted). We
see no abuse of discretion in this case, and thus affirm.
Next, we turn to Ms. Pettus’s challenge to the AJ’s
sanction dismissing her disability discrimination claim. As
the Supreme Court has explained, “[a] federal employee
who claims that an agency action appealable to the MSPB
violates an antidiscrimination statute listed in [5 U.S.C.]
§ 7702(a)(1)6 should seek judicial review in district court,
not the Federal Circuit,” regardless of whether the MSPB
decided her case on procedural grounds or on the merits.
Kloeckner v. Solis, 568 U.S. 41, 56 (2012). By choosing to
abandon her disability discrimination claim for this court
to have jurisdiction, Ms. Pettus chose to abandon not only
the merits of her disability discrimination claim but the re-
lated procedural arguments as well. See ECF No. 18;
Kloeckner, 568 U.S. at 56. Thus, we cannot consider this
issue.7
Lastly, we address Ms. Pettus’s challenge to the
Board’s dismissal of her constructive suspension appeal.
6 Ms. Pettus alleged disability discrimination under
the Rehabilitation Act of 1973, one of the antidiscrimina-
tion statutes listed in § 7702(a)(1). Appx. 28.
7 As for Ms. Pettus’s argument that she is pro se and
did not know the law, those arguments also relate to her
discrimination claim and are thus not before us. See ECF
No. 18; Kloeckner, 568 U.S. at 56.
Case: 22-1880 Document: 36 Page: 8 Filed: 07/13/2023

-- 8 of 10 --

PETTUS v. NAVY 9
Ms. Pettus seems to argue that her restoration and con-
structive suspension appeals are for different dates, pre-
sumably to prevent her constructive suspension appeal
from being subsumed by her restoration appeal. See Pet.
Br. 9. But Ms. Pettus does not identify what the alleged
correct dates are or how the Board erred in making its de-
termination. See Pet. Br. 9, 12. Said otherwise, she has
failed to adequately develop her argument and has thus
waived it. See Rodriguez v. Dep’t of Veterans Affs., 8 F.4th
1290, 1305 (Fed. Cir. 2021) (“An issue that is merely al-
luded to and not developed as an argument in a party’s
brief is deemed waived.”)
We have considered Ms. Pettus’s remaining arguments
and find them unpersuasive.8
8 For example, Ms. Pettus raises several issues for
the first time on appeal, including that she accepted the
temporary Security Assistant position under duress, Pet.
Br. 19; challenges to the agency’s backpay calculations,
Pet. Br. 12; and arguments related to a separate EEOC
partial recovery appeal, Pet. Br. 9, 12. See Pettus, MSPB
Docket No. DC-0353013-0409-B-1, Pet. for Review (Sept. 2,
2016) (raising no argument about these issues); Pettus,
MSPB Docket No. DC-0752-16-0763-I-1, Pet. for Review
(Oct. 4, 2016) (same). This court has “regularly stated . . .
that a position not presented in the tribunal under review
will not be considered on appeal in the absence of excep-
tional circumstances.” Pavo Sols. LLC v. Kingston Tech.
Co., 35 F.4th 1367, 1380 (Fed. Cir. 2022) (quoting In re
Google Tech. Holdings LLC, 980 F.3d 858, 863 (Fed. Cir.
2020)). Because Ms. Pettus did not raise these arguments
before the Board and does not argue any exceptional cir-
cumstances to warrant review, she has forfeited these ar-
guments.
Case: 22-1880 Document: 36 Page: 9 Filed: 07/13/2023

-- 9 of 10 --

PETTUS v. NAVY 10
CONCLUSION
For the reasons above, we affirm the Board’s final de-
cision granting Ms. Pettus’s restoration appeal and dis-
missing her constructive suspension appeal.
AFFIRMED
COSTS
No costs.
Case: 22-1880 Document: 36 Page: 10 Filed: 07/13/2023

-- 10 of 10 --