UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

PEIERRE L. FREEMAN,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

DA-0353-22-0125-I-1

DATE: February 15, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 the 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 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 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 much.

¶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 RIGHTS2

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 the 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 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. 

(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 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: 
7

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.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. 
8

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:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board