UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

CRAIG MILLER, Appellant,

v.
UNITED STATES POSTAL SERVICE,

Agency. DOCKET NUMBER CH

- 0353

- 20

- 0294

- I

- 2

DATE: July 29, 2022



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Craig Miller , Springfield, Ohio, pro se. Cynthia R. Allen , Memphis, Tennessee, 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 appeal of the agency’s 2020 denial of hi s request for restoration 2

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 Although the appellant mentioned the agency’s 1994 restoration offer below, he d id not explicitly argue that it amounted to an arbitrary and capricious denial of restoration until his petition for review . Petition for Review File, Tab 1 at 3, 5. We construe his2

and his claim that his 1993 retirement was involuntary for lack of jurisdiction. On petition for review, the appellant asserts that not having a hearing harmed his restoration appeal. Generally, we grant petitions 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
d iligence, 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 appe al, 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 and AFFIRM the initial decision, 3
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).

argument to be a request to reopen his 1998 denial of restoration appeal. Miller v. U.S. Postal Service , MSPB Docket No. CH

- 0353

- 98

- 0521

- I

- 1. I n deciding that appeal, the Board found that it cannot review an Office of Workers’ Compensation Programs (OWCP) determination that a job offer was suitable, and thus, there was no basi s to grant relief in an appeal premised on a claim that the agency’s job offer was so unreasonable that it amounted to a denial of restoration. Miller v. U.S. Postal Service
, 82 M.S.P.R. 170 , ¶¶ 6

- 8, 10 (1999). I n an April 17, 2015 decision, the Employees’ Compensation Appeals Board (ECAB) reversed the OWCP determination upon which the Board relied in its 1999 decision

. Initial Appe al File (IAF), Tab 9 at 91

- 99. T he Board will only reopen a case if the appellant has exercised due diligence in seeking reopening. McCoy v. U.S. Postal Service
, 112 M.S.P.R. 256 , ¶ 11 (2009) , aff’d
, 360 F. App’x 132 (Fed. Cir. 2010). The appellant has not exercised due diligence here . He did not bring the April 17, 2015 ECAB decision to the attention of the Board until the filing of the instant appeal approximately 5 years after its issuance

. Thus, we decline to exercise our discretion to reopen the appeal under 5 C.F.R. § 1201.118

. 3 After the initial decision in this appeal was issued, 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. The Board in Cronin held that, although agencies may undertake restoration efforts beyond the minimum effort required by3

NOTICE OF APPEAL RIG HTS 4 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 appe al 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 j urisdiction. 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 t he 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 on e to review your case, you
should contact that forum for more information.

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 resul ting 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, as explained in Cronin , 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. See Cronin , 2022 MSPB 13 , ¶ 20 (citing Sanchez v. U.S. Postal Service
, 114 M.S.P.R. 345 , ¶ 12 (2010)). For the reasons stated in the initial decision, we find that the agency complied with the minimum requirement of 5 C.F.R. § 353.301 (d) and that the appellant failed to nonf rivolously allege that the agency’s denial of restoration in 2020 was arbitrary and capricious. IAF , Tab 12, Initial Decision at 7

- 8.

4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights inclu ded in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4

(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. Cour t 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 Prote ction 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
disc rimination . 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 you5

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

____ , 13 7 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, o r 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 yo ur 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: Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960 Washington, D.C. 20013

I f you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to:6

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. C ourt of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 5 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). 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

5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of com petent 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 w ith 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. 1510.7

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 Petitio ners 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 web site 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