Roseanne Cronin v. United States Postal Service

                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                        

                              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 

(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 

(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 

 (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 

(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, 

, ¶ 9 (2016); see 

(b). Congress has
      explicitly granted OPM the authority to issue regulations governing the
      obligations of employing agencies in this regard. 

(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. 

; see
      Smith v. U.S. Postal Service, 

, ¶ 6 (1999).
¶11           The regulation at 

(d) concerns the restoration rights
      granted to “partially recovered” employees, defined in 

 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 

. 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, 

, ¶ 12 (2010). 5
¶12         Although 

 does not itself provide for an appeal right to the
      Board, the regulation at 

 provides Board appeal rights to
      individuals affected by restoration decisions under 

. 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.” 

(c).
      The Board’s own regulations in turn provide that, to establish jurisdiction over an
      appeal     arising   under   

,   an   appellant    must    make
      nonfrivolous allegations     regarding   the    substantive    jurisdictional   elements.
      

(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, 

, ¶ 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,
      

, ¶ 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 

(c), a denial of
      restoration is “arbitrary and capricious” if, and only if, the agency failed to meet
      its obligations under 

(d).
¶14            The jurisdictional standard established by 

(c) “reflects
      the limited substantive right enjoyed by partially recovered employees.”
      Bledsoe v. Merit Systems Protection Board, 

, 1103 (Fed. Cir. 2011),
      superseded in part by regulation on other grounds as stated in Kingsley ,
      

, ¶ 10.          Whereas employees who fully recover from a
      compensable injury within a year have an “unconditional right to restoration
      under 

(a) and 

(b)(1),” Bledsoe, 

, 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, 

, ¶ 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 

(c). Brehmer v. U.S. Postal Service, 

, ¶ 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, 

 (quoting 

(d)). The Board appeal right under 

(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, 

 (emphasis in original).
      Accordingly, our reviewing court has found the arbitrary and capricious standard
      of 

(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, 

, 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
      

(d).” Bledsoe, 

.

      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, 

, ¶¶ 12-16 (2012),
      superseded in part by regulation on other grounds as stated in Kingsley ,
      

, ¶ 10, the Board considered whether an agency’s obligations
      under 

(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, 

,
      ¶¶ 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   

(d).     The Board noted that 

(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 

(c). Latham, 

, ¶ 12.
¶16        To help resolve the question, the Board sought and obtained an advisory
      opinion from OPM. 

 In its advisory opinion, OPM expressed the view that the
      phrase “at a minimum,” as it appears in 

(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, 

, 414 (1945), because it was consistent with the language
      of the regulation and not plainly erroneous. Latham, 

, ¶ 13;
      see Auer v. Robbins, 

, 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

      

, 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, 

, ¶ 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. 

 (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 

(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. ___, 

. 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 

(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.   

(b); see Latham, 

 (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, 

, 565 (D.C. Cir. 2004). By contrast,
      “there is no such presumption covering [re]delegations to outside parties.” 

      8
        The validity of 

(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 

(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, 

,
      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, 

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

, 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.” 

 (citing Shook v. District
      of Columbia Financial Responsibility & Management Assistance Auth ority,
      

, 783-84 & n.6 (D.C. Cir. 1998)); see Latham, 

      (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, 

 (citations and quotations omitted).
      This principle applies with equal force when, as in this case, the outside party is
      another Federal agency. 

 (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, 

 (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, 

,
      ¶¶ 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, 

, ¶¶ 5-9 (2012) (finding a violation
      of restoration rights under the ELM despite the fact that the agency complied with
      its minimum obligations under 

(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
      

(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
      

(d) such that a resulting denial of restoration would be
      rendered “arbitrary and capricious” for purposes of establishing Board
      jurisdiction under 

(c).         Accord Smith v. Merit Systems
      Protection Board, 

, 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, 

, 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 

(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 

).          Rather, to
      establish jurisdiction under 

(c), an appellant must, inter alia,
      make a nonfrivolous allegation that the agency failed to comply with the
      minimum requirement of 

(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, 

, ¶ 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. 

, ¶ 58 n.27; see Paszko v. U.S. Postal
      Service, 

, ¶ 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, 

. 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, 

, ¶ 5 (2016), aff’d per curiam, 

 (Fed. Cir.
      2017); Davis, 

, ¶¶ 11-12; Davis, 

, ¶ 6; Bennett v. U.S.
      Postal Service, 

, ¶ 11 (2012); Coles v. U.S. Postal Service,
      

, ¶ 17 (2012); Richards v. U.S. Postal Service, 

, ¶ 6
      (2012); and Ashley v. U.S. Postal Service, 

, ¶ 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 

(c) by making a nonfrivolous
      allegation that the denial of restoration was arbitrary and capricious due to the
      agency’s failure to comply with 

(d). IAF, Tab 2 at 3-4; see
      Burgess v. Merit Systems Protection Board, 

, 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 

(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 

(c)
      has been independently established. See Latham, 

, ¶ 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 

(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,
      

, ¶ 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 ( 

).

                               NOTICE OF APPEAL RIGHTS 14
            You may obtain review of this final decision. 

(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.              

(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, 

 (Sept. 25,
      2017), request for reconsideration denied, Request Nos. 0520180094 & 0520180095,
      

 (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.               

(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.     

(b)(2); see Perry v. Merit Systems
Protection Board, 

 , 

.            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. 

(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. 

(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 

(b)(8) or
other protected activities listed in 

(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.

(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,

.
                                                                                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.