The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PEIERRE L. FREEMAN, DOCKET NUMBER
Appellant, DA-0353-22-0125-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 15, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Peierre L. Freeman, De Soto, Texas, pro se.
Theresa M. Gegen, Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his restoration appeal for lack of jurisdiction. On petition for review,
the appellant does not make any argument but instead submits additional
evidence. Petition for Review (PFR) File, Tab 1. Generally, we grant petitions
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
such as this one only in the following circumstances: 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 administrative 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. 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, we conclude that the petitioner
has not established any basis under section 1201.115 for granting t he petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify the basis for concluding that the appellant failed to
nonfrivolously allege Board jurisdiction, we AFFIRM the initial decision.
¶2 In the initial decision, the administrative judge considered the four
substantive jurisdictional elements as set forth in Hamilton v. U.S. Postal Service,
123 M.S.P.R. 404, ¶ 12 (2016), in arriving at her conclusion that the appellant
failed to nonfrivolously allege Board jurisdiction over his appeal. Initial Appeal
File (IAF), Tab 16, Initial Decision (ID) at 2-7. She found that the appellant
nonfrivolously alleged that he was absent from his position due to a compensable
injury, that he had partially recovered, and that the agency denied his request for
restoration. ID at 5. We agree with those conclusions. She also consider ed
whether the appellant nonfrivolously alleged that the denial of restoration
rights—which she identified as the discontinuation of the appellant’s July 2018
modified duty assignment—was arbitrary and capricious. ID at 5. She cited case
law concerning when, under the agency’s internal rules, it may discontinue a
modified assignment consisting of tasks within an employee’s medical
restrictions but found that the requirements of the appellant’s July 2018 modified
job assignment were not within his 2021 updated medical restrictions. ID at 6.
3
As a result, she concluded that the appellant failed to nonfrivolously allege that
the agency acted arbitrarily and capriciously in discontinuing his July 2018
modified assignment and thus that he failed to establish Board jurisdiction over
his appeal. ID at 7.
¶3 After the issuance of the initial decision, the Board issued a decision in
Cronin v. U.S. Postal Service, 2022 MSPB 13, which clarified when a denial of
restoration may be arbitrary and capricious. In Cronin, the Board held that,
although agencies may undertake restoration efforts beyond the minimum effort
required by OPM under 5 C.F.R. § 353.301(d), an agency’s failure to comply with
self-imposed obligations 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). Cronin, 2022 MSPB 13, ¶ 20. Rather, the issue before the
Board is limited to whether the agency failed to comply with the mi nimum
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 him for any such vacancies. Id. (citing Sanchez v. U.S. Postal
Service, 114 M.S.P.R. 345, ¶ 12 (2010)).
¶4 In light of Cronin, we have reexamined the appellant’s pleadings below and
on review and find that they do not contain any allegation that the agency’s action
was arbitrary and capricious because it failed to comply with the minimum
requirements of 5 C.F.R. § 353.301(d). IAF, Tabs 1, 12, 13; PFR File, Tab 1. On
that basis, we find that the appellant failed to nonfrivolously allege Board
jurisdiction over his claims, and we modify the initial decision to reflect as mu ch.
¶5 On review, the appellant submits new evidence including emails about his
new modified job offer, a letter from his new physician, mail receipts, claim for
compensation forms, signed statements regarding previous incidents with his
supervisors, an old settlement agreement, and other various emails and papers.
PFR File, Tab 1. He provides no explanation as to why he did not provide this
4
evidence, which predates the initial decision, to the administrative judge.
See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (finding that the
Board generally will not consider evidence submitted for the first time with the
petition for review absent a showing that it was unavailable before the record was
closed despite the party's due diligence); 5 C.F.R. § 1201.115(d). In any event,
none of this evidence is material to the outcome of this appeal. See Russo v.
Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will
not grant a petition for review based on new evidence absent a showing that it is
of sufficient weight to warrant an outcome different from that of the initial
decision).
NOTICE OF APPEAL RIGHTS 2
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 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 below 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 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.
2
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 th e notice, the
Board cannot advise which option is most appropriate in any matter.
5
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 appropria te 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
6
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 rece ives 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 or igin, 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:
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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 2 302(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. 3 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).
3
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 Appeals
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.
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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.
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/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.