Roseanne Cronin v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 13

Docket No. DE-0353-15-0381-I-1

Roseanne H. Cronin,

Appellant,

v.

United States Postal Service,

Agency.

May 24, 2022

Roseanne H. Cronin, Larkspur, Colorado, pro se.

Brian J. Odom, Esquire, Denver, Colorado, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decisio n that

dismissed for lack of jurisdiction her claim that the agency arbitrarily and

capriciously denied her restoration as a partially recovered employee. For the

reasons set forth below, we AFFIRM the initial decision as MODIFIED to clarify

the basis for our finding that the Board lacks jurisdiction over this appeal.

BACKGROUND

¶2 The agency formerly employed the appellant as a City Carrier at the

Castle Rock Post Office in Castle Rock, Colorado. Initial Appeal File (IAF),

Tab 11 at 10. On December 21, 1999, she suffered an injury to her right

2

shoulder, for which the Office of Workers’ Compensation Programs (OWCP)

accepted her claim on March 22, 2000. Id. at 321. On January 7, 2002, she

suffered an injury to her left shoulder, and OWCP accepted her claim for that

injury on March 14, 2002. Id. at 206. She received OWCP benefits for scattered

periods from 2000 to 2004. Id. at 107, 233, 286.

¶3 At some point following her compensable injuries, the appellant began

working in a series of temporary limited-duty assignments. In March 2008, she

accepted an assignment to a Modified Letter Carrier position in Castle Rock. Id.

at 280-81. She accepted a limited-duty assignment as an Acting Supervisor of

Customer Service effective May 3, 2010. Id. at 274-75. 1 In November 2013, she

accepted a temporary directed assignment to a Supervisor of Customer Service

position. Id. at 61. That assignment was initially only for a few weeks, id., but it

was later extended until May 16, 2014, id. at 231.

¶4 On November 26, 2013, the agency requested updated medical information

from the appellant’s physician. Id. at 252. By letter dated January 31, 2014, the

agency requested that the appellant have her treating physician complete and

return a Form CA-17, Duty Status Report. IAF, Tab 1 at 7. On March 25, 2014,

the appellant’s treating physician completed two CA-17s, one for each shoulder

injury, permitting her to work with restrictions. Id. at 8-9. The appellant asserts

that on July 11, 2014, she told the agency that she no longer wished to be a

supervisor. 2 IAF, Tab 4 at 4. By letter dated July 14, 2014, the agency advised

the appellant that it had searched for alternative work in all crafts and on all tours

1

The appellant’s May 3, 2010 limited-duty assignment was to run until

October 30, 2010. IAF, Tab 11 at 274. Whether the appellant continued in that

assignment or received a different limited-duty assignment upon its expiration is

unclear.

2

There is nothing in the record showing the appellant’s assignment after May 16, 2014.

However, it appears from the appellant’s assertion that she remained in some type of

supervisory assignment until at least July 11, 2014.

3

within the local commuting areas, and had found no work compatible with the

medical restrictions described in the March 25, 2014 CA -17s. IAF, Tab 11 at 43.

The appellant requested sick leave, effective July 12, 2014, citing “no work

available,” and the agency approved her request. IAF, Tab 7 at 6. Her last day in

pay status was October 23, 2014. IAF, Tab 11 at 10.

¶5 On November 25, 2014, the appellant filed a claim for disability

compensation with OWCP for the period from October 18 through

November 14, 2014, and submitted the March 25, 2014 CA-17s in support of

her claim. Id. at 11-12. OWCP found that evidence insufficient, and on

January 14, 2015, OWCP issued a formal decision disallowing the appellant’s

claim. Id. Meanwhile, the Office of Personnel Management (OPM) approved the

appellant’s application for disability retirement benefits and she retired effective

January 2, 2015. Id. at 10.

¶6 On February 25, 2015, the appellant filed a Board appeal alleging that her

retirement was involuntary. Cronin v. U.S. Postal Service, MSPB Docket

No. DE-3443-15-0223-I-1. During the course of that appeal, the appellant filed

an additional pleading, dated May 13, 2015, in which she alleged that she was

partially recovered from a work-related injury and that the agency had violated

her restoration rights. IAF, Tab 1. The administrative judge docketed that

pleading as the initial appeal in this case, and apprised the appell ant of the

requirements for establishing Board jurisdiction over a restoration appeal brought

under 5 C.F.R. § 353.304(c). 3 IAF, Tab 2.

3

Shortly thereafter, on May 20, 2015, the administrative judge dismissed the

involuntary retirement appeal for lack of jurisdiction, based on her finding that the

appellant did not belong to any of the categories of postal employees who have been

extended chapter 75 appeal rights pursuant to 39 U.S.C. § 1005(a). Cronin v. U.S.

Postal Service, MSPB Docket No. DE-3443-15-0223-I-1, Initial Decision (May 20,

2015). Neither party filed a petition for review of that initial decision, which became

final on June 24, 2015. To the extent the appellant’s petition for review in this case

may be intended as a request to reopen her involuntary retirement appeal, her request is

4

¶7 Subsequently, on April 11, 2016, OWCP issued a reconsideration decision

vacating its January 14, 2015 decision and awarding the appellant compensation

for the period from October 18 through November 14, 2014, in connection with

her January 7, 2002 injury. IAF, Tab 13 at 4-6. The appellant supplemented the

record in the instant appeal with a copy of that decision and a Board appeal form.

IAF, Tab 13 at 4-6, Tab 14 at 1-5. She reiterated her previous request for a

hearing. IAF, Tab 3 at 3, Tab 14 at 2.

¶8 Without holding the appellant’s requested hearing, the administrative judge

issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,

Tab 17, Initial Decision (ID). The administrative judge found that the appellant

had made nonfrivolous allegations that she was absent from her position due to a

compensable injury, that she had partially recovered, and that the agency had

denied her request for restoration. ID at 5-7. However, she further found that the

appellant failed to nonfrivolously allege that the agency acted arbitrarily and

capriciously in denying her restoration. ID at 7-12. Finally, the administrative

judge found that the Board lacked jurisdiction over the appellant’s claims of

disability discrimination absent an otherwise appealable action. ID at 12.

¶9 In her petition for review, the appellant contends that the agency arbitrarily

and capriciously denied her request for reasonable accommodation when it

required her to submit a CA-17, and that she could have established her

discrimination claims had she been granted the hearing she requested. Petition

for Review (PFR) File, Tab 1 at 3-6. The agency has filed a response in

opposition to the petition for review. PFR File, Tab 4.

denied. See 5 C.F.R. § 1201.118 (providing that the Board will exercise its discretion

to reopen an appeal only in unusual or extraordinary circumstances and generally within

a short period of time after the decision becomes final).

5

ANALYSIS

To establish jurisdiction over a restoration appeal under 5 C.F.R. § 353.304(c), an

appellant must, inter alia, make a nonfrivolous allegation that the agency

arbitrarily and capriciously denied restoration.

¶10 The Federal Employees’ Compensation Act (FECA) provides, inter alia,

that Federal employees who suffer compensable injuries enjoy certain rights to be

restored to their previous or comparable positions. Kingsley v. U.S. Postal

Service, 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C. § 8151(b). Congress has

explicitly granted OPM the authority to issue regulations governing the

obligations of employing agencies in this regard. 5 U.S.C. § 8151(b). Pursuant

to this authority, OPM has issued regulations requiring agencies to make certain

efforts toward restoring employees with compensable injuries to duty,

depending on the timing and extent of their recovery. 5 C.F.R. § 353.301; see

Smith v. U.S. Postal Service, 81 M.S.P.R. 92, ¶ 6 (1999).

¶11 The regulation at 5 C.F.R. § 353.301(d) concerns the restoration rights

granted to “partially recovered” employees, defined in 5 C.F.R. § 353.102 as

injured employees who, “though not ready to resume the full range” of their

regular duties, have “recovered sufficiently to return to part-time or light duty or

to another position with less demanding physical requirements.”

Section 353.301(d) requires agencies to “make every effort to restore in the local

commuting area, according to the circumstances in each case, an individual who

has partially recovered from a compensable injury and who is able to return to

limited duty.” This means, “[a]t a minimum,” treating individuals who have

partially recovered from a compensable injury substantially the same as other

disabled 4 individuals under the Rehabilitation Act, as amended. Id.;

see 29 U.S.C. § 794. The Board has interpreted the regulation to require that an

agency must at least search within the local commuting area for vacant positions

4

The regulation anachronistically refers to “handicapped” individuals.

6

to which it can restore a partially recovered employee and to consider her for any

such vacancies. Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 12 (2010). 5

¶12 Although 5 U.S.C. § 8151 does not itself provide for an appeal right to the

Board, the regulation at 5 C.F.R. § 353.304 provides Board appeal rights to

individuals affected by restoration decisions under 5 C.F.R. § 353.301. As to

partially recovered employees, the regulation provides that a partially recovered

employee “may appeal to [the Board] for a determination of whether the agency is

acting arbitrarily and capriciously in denying restoration.” 5 C.F.R. § 353.304(c).

The Board’s own regulations in turn provide that, to establish jurisdiction over an

appeal arising under 5 C.F.R. § 353.304, an appellant must make

nonfrivolous allegations regarding the substantive jurisdictional elements.

5 C.F.R. § 1201.57(a)(4), (b). Accordingly, to establish Board jurisdiction over a

restoration claim as a partially recovered employee, the appellant must make

nonfrivolous allegations that:

(1) she was absent from her position due to a compensable inj ury;

(2) she recovered sufficiently to return to duty on a part -time basis,

or to return to work in a position with less demanding physical

requirements than those previously required of her;

(3) the agency denied her request for restoration; and

(4) the denial was arbitrary and capricious.

Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404, ¶ 12 (2016).

5

Although the Rehabilitation Act may in some cases require an agency to search

beyond the local commuting area, we have found that, read as a whole,

section 353.301(d) requires only that an agency search within the local commuting area,

and that the reference to the Rehabilitation Act means t hat, in doing so, it must

undertake substantially the same effort that it would exert under that Act when

reassigning a disabled employee within the local commuting area. Sanchez,

114 M.S.P.R. 345, ¶ 18.

7

¶13 Here, it is undisputed that the appellant has satisfied the first three

jurisdictional elements. 6 We take this opportunity to clarify our analysis of the

fourth jurisdictional element.

For purposes of establishing jurisdiction under 5 C.F.R. § 353.304(c), a denial of

restoration is “arbitrary and capricious” if, and only if, the agency failed to meet

its obligations under 5 C.F.R. § 353.301(d).

¶14 The jurisdictional standard established by 5 C.F.R. § 353.304(c) “reflects

the limited substantive right enjoyed by partially recovered employees.”

Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1103 (Fed. Cir. 2011),

superseded in part by regulation on other grounds as stated in Kingsley ,

123 M.S.P.R. 365, ¶ 10. Whereas employees who fully recover from a

compensable injury within a year have an “unconditional right to restoration

under 5 C.F.R. § 353.301(a) and 5 U.S.C. § 8151(b)(1),” Bledsoe, 659 F.3d

at 1103, a partially recovered employee does not have such an u nconditional

right. Rather, the agency only is obliged to “make every effort to restore” a

partially recovered employee “in the local commuting area” and “according to the

6

The first jurisdictional element is satisfied because OWCP issued a reconsideration

decision awarding the appellant compensation for at least some portion of her absence.

IAF, Tab 13 at 4-6; see Manning v. U.S. Postal Service, 118 M.S.P.R. 313, ¶ 9 (2012)

(holding that when OWCP reverses an earlier adverse decision, an appellant may rely

on the more recent favorable decision in making a nonfrivolous allegation that her

absence was due to a compensable injury). Regarding the second element, the

appellant’s allegation of partial recovery is nonfrivolous in light of OWCP’s acceptance

of medical documentation identifying certain physical restrictions that would permit her

to return to work at the agency. IAF, Tab 13 at 6; Tab 1 at 8-9. As to the third

jurisdictional element, it is undisputed that, after the appellant submitted CA-17s

indicating her availability to work with restrictions, the agency determined that no craft

positions consistent with her medical restrictions were available. IAF, Tab 11 at 43;

Tab 7 at 5. Although the appellant previously had been restored to a variety of

modified-duty assignments, the Board has held that wrongfully terminating a restoration

previously granted may constitute a denial of restoration within the meaning of 5 C.F.R.

§ 353.304(c). Brehmer v. U.S. Postal Service, 106 M.S.P.R. 463, ¶ 9 (2007). Although

the record is not entirely clear, we assume for purposes of this decision that the

appellant continued in her supervisory assignment until the agency sent her home in

July 2014, due to a lack of available work.

8

circumstances in each case.” Bledsoe, 659 F.3d at 1103 (quoting 5 C.F.R.

§ 353.301(d)). The Board appeal right under 5 C.F.R. § 353.304(c) is likewise

conditional: “[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.” Bledsoe, 659 F.3d at 1103 (emphasis in original).

Accordingly, our reviewing court has found the arbitrary and capricious standard

of 5 C.F.R. § 353.304(c) “limits jurisdiction to appeals where the substantive

rights of the partially recovered [appellants] under section 353.301(d) are actual ly

alleged to have been violated.” Id.; cf. Palmer v. Merit Systems Protection

Board, 550 F.3d 1380, 1383 (Fed. Cir. 2008) (holding that a partially recovered

employee alleging improper restoration “may appeal only on the limited grounds

enumerated in [section 353.304(c)]”). In other words, for purposes of the

fourth jurisdictional element, a denial of restoration is “rendered arbitrary

and capricious by [an agency’s] failure to perform its obligations under

5 C.F.R. § 353.301(d).” Bledsoe, 659 F.3d at 1104.

Section 353.301(d) does not itself require an agency to provide resto ration rights

beyond the minimum requirement of the regulation.

¶15 In Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶¶ 12-16 (2012),

superseded in part by regulation on other grounds as stated in Kingsley ,

123 M.S.P.R. 365, ¶ 10, the Board considered whether an agency’s obligations

under 5 C.F.R. § 353.301(d) might exceed the “minimum” requirement of the

regulation, i.e., to search the local commuting area for vacant positions to which

the partially recovered employee can be restored and to consider her for such

positions. The appellants in Latham alleged that the agency had arbitrarily and

capriciously discontinued their modified assignments in violation of internal

agency rules, set forth in the Employee and Labor Relations Manual (ELM),

concerning restoring partially recovered employees. Latham, 117 M.S.P.R. 400,

¶¶ 2-3, 5. Under the pertinent provisions of the ELM and its accompanying

handbook, the agency had agreed to restore partially recovered individuals to duty

9

in whatever tasks are available regardless of whether those tasks comprise the

essential functions of an established position. Id., ¶¶ 3, 26. Thus, the agency had

assumed obligations beyond the “minimum” requirement of 5 C.F.R.

§ 353.301(d). The Board noted that 5 C.F.R. § 353.301(d) was silent as to

whether an agency may voluntarily assume restoration obligations beyond the

“minimum” requirements of that section and, if so, whether such obligations are

enforceable by the Board under 5 C.F.R. § 353.304(c). Latham, 117 M.S.P.R.

400, ¶ 12.

¶16 To help resolve the question, the Board sought and obtained an advisory

opinion from OPM. Id. In its advisory opinion, OPM expressed the view that the

phrase “at a minimum,” as it appears in 5 C.F.R. § 353.301(d), anticipates that an

agency may adopt additional agency-specific requirements pertaining to restoring

partially recovered individuals, and that the regulation requires “compliance with

an agency’s own rules as well as the provisions of OPM regulation, at least where

they confer additional protections or benefits on the employee.” Id., ¶ 13

(quoting OPM’s advisory opinion in Latham). OPM further advised:

It is OPM’s opinion that if the Postal Service established a rule that

provided the partially recovered employees with greater restoration

rights than the “minimum” described in the OPM regulations, the

Postal Service is required to meticulously follow that rule. To do

otherwise would be arbitrary and capricious within the meaning of

OPM’s regulation conferring jurisdiction on the Board at

section 353.304(c).

Id. In a split decision, the majority of the Board found that OPM’s interpretation

of its regulation was entitled to deference under Bowles v. Seminole Rock & Sand

Company, 325 U.S. 410, 414 (1945), because it was consistent with the language

of the regulation and not plainly erroneous. Latham, 117 M.S.P.R. 400, ¶ 13;

see Auer v. Robbins, 519 U.S. 452, 461 (1997) (stating that an agency’s

interpretation of its own regulations is controlling unless plainly erroneous or

inconsistent with the regulation) (citations and quotations omitted), superseded in

part on other grounds by regulation as stated in Crowe v. Examworks , Inc.,

10

136 F. Supp. 3d 16, 28 n.8 (D. Mass. 2015). Thus, the Board concluded that it

has jurisdiction over appeals concerning the denial of restoration to partially

recovered individuals when the denial results from the agency violating its own

internal rules. Latham, 117 M.S.P.R. 400, ¶ 13. In dissent, then-Member Mary

M. Rose expressed her view that OPM’s regulations could not be interpreted

reasonably as granting the Board authority to adjudicate substantive

entitlements conferred by internal agency rules concerning partially recovered

employees. Id. (dissenting opinion of Member Rose), ¶¶ 8-17. One basis for this

dissenting opinion was that the Board could enforce internal agency restoration

entitlements that go beyond Federal law and OPM regulations only if OPM was

permitted to redelegate the authority Congress granted it to promulgate

restoration regulations, which Congress did not authorize OPM to do. Id.,

¶¶ 15-17.

¶17 We are now persuaded by this dissenting opinion that, contrary to the

majority opinion in Latham, OPM’s interpretation of its regulation at 5 C.F.R.

§ 353.301(d) was plainly erroneous and therefore not entitled to deference under

Seminole Rock and Auer. 7 Were the regulation interpreted as OPM suggested in

7

We assume for purposes of our analysis here that deference under Seminole Rock and

Auer applies. The Supreme Court recently addressed the proper application of such

deference in Kisor v. Wilkie, ___ U.S. ___, 139 S. Ct. 2400 (2019). Although a

majority of the Court in Kisor declined to overrule Seminole Rock and Auer, it

emphasized the limits on the deference that should be extended to agency

interpretations of their own regulations. In particular, the Court held that “Auer

deference is not the answer to every question of interpreting an agency’s rules,” and

that deference should only be a consideration if a regulation is “genuinely ambiguous,

even after a court has resorted to all the standard tools of interpretati on.” Kisor,

139 S. Ct at 2414. The Court further held that even where such genuine ambiguity

exists, deference should be given only when “the character and context of the agency

interpretation entitles it to controlling weight.” Id. at 2416. If the Board in Latham had

the benefit of the Court’s guidance in Kisor, it may not have deferred to OPM’s

interpretation in the first instance.

11

its advisory opinion, 8 OPM would not have the final say in determining what

obligations its own regulation imposed. Rather, an employing agency would have

free rein to determine the scope of its obligation under 5 C.F.R. § 353.301(d)—

and, by extension, FECA itself—with the sole proviso that it provide at least the

“minimum” rights described in the regulation. Thus, through its advisory opinion

in Latham, OPM effectively claimed for itself the authority to redelegate a

significant portion of its statutorily granted rulemaking authority to outside

parties. 9

¶18 However, the statute refers only to “regulations issued by [OPM],” and says

nothing about OPM’s authority to redelegate its rulemaking authority to an

outside party. 5 U.S.C. § 8151(b); see Latham, 117 M.S.P.R. 400 (dissenting

opinion of Member Rose), ¶ 15. Generally, “[w]hen a statute delegates authority

to a [F]ederal officer or agency, subdelegation to a subordinate [F]ederal officer

or agency is presumptively permissible absent affirmative evidence of a contrary

congressional intent.” United States Telecom Association v. Federal

Communications Commission, 359 F.3d 554, 565 (D.C. Cir. 2004). By contrast,

“there is no such presumption covering [re]delegations to outside parties.” Id.

8

The validity of 5 C.F.R. § 353.301(d) itself is not before us. Rather, we proceed on

the assumption that the regulation, if permissibly interpreted, is valid and within the

scope of OPM’s authority under 5 U.S.C. § 8151(b).

9

We use the term “redelegation” to distinguish an agency’s delegation of authority to

an outside entity from subdelegation to an agency’s own officials or internal

components. See Jason Marisam, The Interagency Marketplace, 96 Minn. L. Rev. 886,

891-97 (2012). Redelegation also differs from situations in which an agency seeks

outside input, such as fact-gathering, advice-giving, or establishing a reasonable

condition for granting agency approval, but retains final decision -making authority.

United States Telecom Association v. Federal Communications Commission, 359 F.3d

554, 566 (D.C. Cir. 2004); see, e.g., Louisiana Forestry Association v. U.S. Department

of Labor, 745 F.3d 653, 671-73 (3d Cir. 2014) (finding that the Department of

Homeland Security (DHS) had not redelegated to the Department of Labor (DOL)

authority to decide H-2B petitions from employers that were required to obtain DOL

certification prior to petitioning DHS for the admission of such workers but DHS

retained final authority to approve or disapprove the petitions).

12

Rather, “[re]delegations to outside parties are assumed to be improper absent an

affirmative showing of congressional authorization.” Id. (citing Shook v. District

of Columbia Financial Responsibility & Management Assistance Auth ority,

132 F.3d 775, 783-84 & n.6 (D.C. Cir. 1998)); see Latham, 117 M.S.P.R. 400

(dissenting opinion of Member Rose), ¶ 15 (quoting United States Telecom,

359 F.3d). As the D.C. Circuit explained, this distinction rests on a fundamental

policy consideration:

When an agency delegates authority to its subordinate,

responsibility—and thus accountability—clearly remain with the

[F]ederal agency. But when an agency delegates power to outside

parties, lines of accountability may blur, undermining an important

democratic check on government decision-making. Also, delegation

to outside entities increases the risk that these parties will not share

the agency’s national vision and perspective, and thus may p ursue

goals inconsistent with those of the agency and the underlying

statutory scheme. In short, [re]delegation to outside entities

aggravates the risk of policy drift inherent in any principal -agent

relationship.

United States Telecom, 359 F.3d at 565-66 (citations and quotations omitted).

This principle applies with equal force when, as in this case, the outside party is

another Federal agency. Id. at 566 (finding that Federal agency officials may not

redelegate their authority to outside entities, whether private or sovereign,

“absent affirmative evidence” of their authority to do so); cf. Shook, 132 F.3d

at 783-84 (finding that the Control Board, an agency of the District of Columbia

Government, lacked authority to transfer its statutory oversight aut hority over the

Board of Education to a Board of Trustees).

¶19 The Board’s post-Latham cases confirm that, under the interpretation of

OPM’s regulations adopted by the majority in Latham, OPM has effectively

redelegated its rulemaking authority to individual agencies. Most notably, since

the Board decided Latham, the outcome of restoration appeals brought by

U.S. Postal Service employees has often turned on whether the agency violated its

13

internal rules. 10 See, e.g., Davis v. U.S. Postal Service, 120 M.S.P.R. 122,

¶¶ 12-13 (2013) (finding a violation of restoration rights based on the agency’s

failure to comply with its ELM and handbook by searching for available

tasks that did not necessarily comprise the essential functions of a position) ;

Davis v. U.S. Postal Service, 119 M.S.P.R. 22, ¶¶ 5-9 (2012) (finding a violation

of restoration rights under the ELM despite the fact that the agency complied with

its minimum obligations under 5 C.F.R. § 353.301(d)).

¶20 We conclude that Congress has not authorized OPM to redelegate its

rulemaking authority in the manner articulated in OPM’s advisory o pinion and

approved by the majority in Latham. This is not to say that an agency may not

undertake restoration efforts beyond the minimum effort required by OPM under

5 C.F.R. § 353.301(d); indeed, the phrase “at a minimum” implies that an agency

is free to do so. However, an agency’s failure to comply with self -imposed

obligations, such as the ELM provisions concerning partially recovered

employees at issue in this appeal, cannot itself constitute a violation of

5 C.F.R. § 353.301(d) such that a resulting denial of restoration would be

rendered “arbitrary and capricious” for purposes of establishing Board

jurisdiction under 5 C.F.R. § 353.304(c). Accord Smith v. Merit Systems

Protection Board, 813 F.2d 1216, 1218-19 (Fed. Cir. 1987) (stating that

“[o]rdinarily a collective bargaining agreement cannot confer jurisdiction on the

[B]oard if the employee would not otherwise have the right to appeal to the

[B]oard.”); cf. Pogarsky v. Department of the Treasury, 7 M.S.P.R. 196, 198

(1981) (finding that, while a collective bargaining agreement may grant

10

A large percentage of the Board’s restoration appeals are brought by employees of the

U.S. Postal Service. However, under the majority holding in Latham, to the extent

other Federal agencies have internal restoration rules that impose greater obligations

than 5 C.F.R. § 353.301(d) itself, the Board effectively would need to develop a

separate body of law for each such agency based on the peculiarities of their internal

rules.

14

procedural protections to probationary employees beyond those found in

5 C.F.R. part 315, the additional safeguards do not become extensions of those

regulations or expand the appeal right under 5 C.F.R. § 315.806). Rather, to

establish jurisdiction under 5 C.F.R. § 353.304(c), an appellant must, inter alia,

make a nonfrivolous allegation that the agency failed to comply with the

minimum requirement of 5 C.F.R. § 353.301(d), i.e., to search within the local

commuting area for vacant positions to which it can restore a partially recovered

employee and to consider her for any such vacancies. Sanchez, 114 M.S.P.R.

345, ¶ 12. The contrary holding of Latham and its progeny is hereby overruled. 11

Claims of prohibited discrimination or reprisal for protected activity do not serve

as independent means of showing that a denial of restoration was arbitrary and

capricious for purposes of section 353.304(c).

¶21 The appellant alleged that the agency’s denial of restoration was based on

prohibited disability discrimination. IAF, Tab 1 at 5. In Latham, we suggested

that a claim of unlawful discrimination or reprisal for protected a ctivity could

serve as an “alternative means” of showing that a denial of restoration was

arbitrary and capricious. 117 M.S.P.R. 400, ¶ 58 n.27; see Paszko v. U.S. Postal

Service, 119 M.S.P.R. 207, ¶ 15 (2013). This holding was incorrect because, as

explained above, a denial of restoration is arbitrary and capricious for purposes of

section 353.304(c) only if an agency fails to meet its obligation under

section 353.301(d). See Bledsoe, 659 F.3d at 1103-04. Determining whether an

agency met its obligation under section 353.301(d) will turn on whether it

11

Cases citing Latham for the now-overruled holding include Clark v. U.S. Postal

Service, 123 M.S.P.R. 466, ¶ 5 (2016), aff’d per curiam, 679 F. App’x 1006 (Fed. Cir.

2017); Davis, 120 M.S.P.R. 122, ¶¶ 11-12; Davis, 119 M.S.P.R. 22, ¶ 6; Bennett v. U.S.

Postal Service, 118 M.S.P.R. 271, ¶ 11 (2012); Coles v. U.S. Postal Service,

118 M.S.P.R. 249, ¶ 17 (2012); Richards v. U.S. Postal Service, 118 M.S.P.R. 242, ¶ 6

(2012); and Ashley v. U.S. Postal Service, 118 M.S.P.R. 231, ¶ 7 (2012), aff’d in part

and vacated in part by Ashley v. U.S. Postal Service, MSPB Docket No. AT-0353-11-

0063-C-1, Final Order (Nov. 19, 2013).

15

“ma[d]e every effort” to restore a partially recovered employee “in the local

commuting area” and “according to the circumstances in each case.” If the

agency makes the required effort but fails to find suitable work for the appellant,

the denial of restoration is not arbitrary and capricious, and the agency’s lack of

success cannot be attributed to any improper motive on its part. If, on the other

hand, the agency fails to make the effort required under section 353.301(d), the

resulting denial of restoration is necessarily arbitrary and capricious, and no

further analysis is required. While an agency’s failure to comply with

section 353.301(d) may well be the result of prohibited discrimi nation or reprisal

for protected activity, whether that is so is immaterial to the question of whether

denying restoration in a particular instance is arbitrary and capricious for

purposes of section 353.304(c). 12

The appeal is dismissed for lack of jurisdiction.

¶22 Although the administrative judge did not have the benefit of this decision,

she nonetheless correctly notified the appellant that she could establish the fourth

jurisdictional element under 5 C.F.R. § 353.304(c) by making a nonfrivolous

allegation that the denial of restoration was arbitrary and capricious due to the

agency’s failure to comply with 5 C.F.R. § 353.301(d). IAF, Tab 2 at 3-4; see

Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir.

1985) (holding that an appellant must receive explicit information on what is

required to establish an appealable jurisdictional issue). The appellant has not

alleged, and there is nothing in the record to suggest, that the agency failed to

comply with the minimum requirements of 5 C.F.R. § 353.301(d) when it denied

her restoration as a partially recovered employee. Accordingly, we find that the

12

We do not decide at present whether and how the Board should address

discrimination and reprisal claims in the event jurisdiction under 5 C.F.R. § 353.304(c)

has been independently established. See Latham, 117 M.S.P.R. 400, ¶ 58 n.27

(observing that the concept of an “affirmative defense” fits better in matters such as

adverse action appeals when the agency bears the burden of proof on the merits).

16

Board lacks jurisdiction over this appeal under 5 C.F.R. § 353.304(c). Absent an

otherwise appealable action, we also lack jurisdiction to address the appellant’s

claim of disability discrimination. See McDonnell v. Department of the Navy,

84 M.S.P.R. 380, ¶ 11 (1999). 13

ORDER

¶23 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.

§ 1201.113).

NOTICE OF APPEAL RIGHTS 14

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described b elow do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

13

The fact that we lack jurisdiction to address the appellant’s discrimination claim does

not mean that she is without recourse for her claim. The Equal Employment

Opportunity Commission (EEOC) has held in a class action appeal, which did not

implicate OPM’s restoration regulations at issue in this appeal and which the EEOC

described as a nonmixed case, that the agency had discriminated against disabled

employees who were injured on duty and assessed under the agency’s National

Reassessment Program between May 2006, and July 2011. See Velva B. v. U.S. Postal

Service, EEOC Appeal Nos. 0720160006 & 0720160007, 2017 WL 4466898 (Sept. 25,

2017), request for reconsideration denied, Request Nos. 0520180094 & 0520180095,

2018 WL 1392289 (Mar. 9, 2018).

14

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

17

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

18

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

19

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 15 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

15

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appea ls

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

20

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

21

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.