Roseanne Cronin v. United States Postal Service , 2022 MSPB 13 ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 13Docket 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.