Peter A. Blevins v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PETER A. BLEVINS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1061
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0353-20-0047-I-1.
______________________
Decided: October 9, 2025
______________________
P ETER A. BLEVINS , New York, NY, pro se.
K AREY L AUREN H ART , Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON J ANE
BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Before P ROST , CUNNINGHAM , and STARK, Circuit Judges.
P ER CURIAM .
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BLEVINS v. MSPB 2
Peter A. Blevins petitions for review of a Merit Systems
Protection Board (“Board”) final order, which denied the
petition for review but modified the basis in the initial de-
cision regarding Mr. Blevins’s failure to non-frivolously al-
lege that his absence was because of a compensable injury.
Blevins v. United States Postal Serv., No. NY-0353-20-
0047-I-1, 2024 WL 3791245, at *1 (M.S.P.B. Aug. 12, 2024)
(“Final Order”). The Board also affirmed the initial deci-
sion dismissing Mr. Blevins’s appeal for lack of jurisdic-
tion. Id.; Blevins v. United States Postal Serv., No. NY-
0353-20-0047-I-1, 2020 WL 428661 (M.S.P.B. Jan. 23,
2020) (App’x 15–26) (“Initial Decision”).1 For the reasons
discussed below, we affirm.
I. BACKGROUND
Mr. Blevins was employed by the United States Postal
Service (“the USPS”) as a Mail Handler. Final Order at *1;
App’x 87. Mr. Blevins sustained an on-the-job injury for
which he filed a claim and received Office of Workers’ Com-
pensation Programs (“OWCP”) benefits. Final Order at *1;
App’x 91.
On November 30, 2017, the USPS offered Mr. Blevins
a modified job assignment after receiving medical docu-
mentation indicating that Mr. Blevins was capable of per-
forming limited duty work in accordance with his medical
restrictions. Final Order at *1; App’x 50–51. On Decem-
ber 22, 2017, after Mr. Blevins failed to report to this posi-
tion, OWCP notified him that the USPS’s offer was suitable
and that if he failed to report to the position or give a jus-
tifiable reason for not reporting, then his right to
1 We refer to the appendix filed by the government,
ECF No. 17, as “App’x” throughout this opinion. Citations
in this opinion are to the version included in the govern-
ment’s appendix. For example, Initial Decision at 1 is
found at App’x 15.
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BLEVINS v. MSPB 3
compensation and award benefits would be terminated. Fi-
nal Order at *1; App’x 48–49. On January 25, 2018,
Mr. Blevins responded that he was unaware of the USPS’s
offer until he received the OWCP’s December 22, 2017, let-
ter and that he was “unable to accept the offer until the
[the USPS] acknowledged his present limitations and a re-
view was conducted by an agency District Reasonable Ac-
commodation Committee (“DRAC”) of whether the offer
was within his medical restrictions.” Final Order at *1;
App’x 54. On January 31, 2018, OWCP informed
Mr. Blevins that his reasons for not reporting to the modi-
fied position were unacceptable and that the position was
still available. Final Order at *1; App’x 46–47.
Mr. Blevins did not accept the position, and on April 18,
2018, OWCP notified Mr. Blevins that his entitlement to
compensation for wage loss and schedule award benefits
would be terminated effective the next day. Final Order
at *1; App’x 45.
On May 9, 2018, Mr. Blevins tried to accept the USPS’s
job offer. Final Order at *2; App’x 67. Mr. Blevins alleges
that the USPS did not respond and that he showed up to
his new proposed worksite on July 17, 2018, where he
worked for four hours. Final Order at *2; App’x 85. The
next day, Mr. Blevins alleges that the USPS told him that
the job offer had been rescinded and ordered him to leave
the worksite. Final Order at *2; App’x 85.
On December 11, 2019, Mr. Blevins filed a restoration
appeal with the Board. Final Order at *2; App’x 87–91.
The administrative judge subsequently issued show cause
orders, directing Mr. Blevins to submit arguments and ev-
idence to establish the Board’s jurisdiction. Final Order
at *2; App’x 69, 79. After both parties responded, the ad-
ministrative judge dismissed Mr. Blevins’s appeal for lack
of jurisdiction. Initial Decision at 1; Final Order at *2.
Specifically, the administrative judge concluded that by re-
jecting the job offer, Mr. Blevins no longer satisfied the cri-
teria for restoration. Initial Decision at 3; Final Order
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BLEVINS v. MSPB 4
at *2. Mr. Blevins subsequently filed a petition for review
with the Board. Final Order at *2; App’x 31–35.
On August 12, 2024, the Board denied Mr. Blevins’s
petition for review and affirmed the administrative judge’s
initial decision as modified. Final Order at *1. The Board
determined that Mr. Blevins failed to non-frivolously al-
lege that the Board had jurisdiction over his partial resto-
ration claim. Id. at *2. Specifically, the Board concluded
that although the administrative judge erred in finding
that Mr. Blevins failed to establish a compensable injury,
this error was harmless because Mr. Blevins “failed to non-
frivolously allege that, at the time he attempted to accept
the job offer in May and July 2018, his absence was due to
that injury.” Id. at *3.
Mr. Blevins petitions for review in this court.
II. D ISCUSSION
We will set aside the Board’s decision if it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c); Mouton-Miller v. Merit Sys. Prot. Bd., 985 F.3d
864, 868 (Fed Cir. 2021). Whether the Board lacked juris-
diction is a question of law that we review de novo, and we
review the Board’s underlying factual findings for substan-
tial evidence. Bryant v. Merit Sys. Prot. Bd., 878 F.3d
1320, 1325 (Fed. Cir. 2017).
A.
We first address whether we have jurisdiction. On De-
cember 5, 2024, Mr. Blevins filed a Federal Circuit Rule
15(c) Statement Concerning Discrimination, arguing that
he raised disability and age discrimination claims before
the Board and did not wish to abandon those claims on re-
view. ECF No. 11 at 2–3. On January 17, 2025, we ordered
the parties to address this court’s jurisdiction. ECF No. 12
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BLEVINS v. MSPB 5
at 2; see also ECF No. 15 at 2. In its informal brief, the
government argues that we have jurisdiction in this case.
Appellee’s Br. 7–12. Specifically, the government argues
that this case is not a mixed case because Mr. Blevins
“failed to sufficiently allege discrimination was ‘a basis for
the action.’” Id. at 9 (quoting 5 U.S.C. § 7702(a)(1)(B)).
Mr. Blevins responds that because he “was affected by an
improper restoration decision, which is an appealable ac-
tion, . . . [he has] alleged discrimination,” and “judicial re-
view should be sought in district court.” Appellant’s Reply
Br. 13. We agree with the government.
Mr. Blevins’s appeal is not a “mixed case” that falls out-
side of our appellate jurisdiction. Compare 5 U.S.C.
§ 7703(b)(1)(B) (granting the Federal Circuit jurisdiction
over a “final order or final decision of the Board that raises
no challenge to the Board’s disposition of allegations of a
prohibited personnel practice” covered by federal antidis-
crimination law, among others) (emphasis added)), with id.
§ 7702(a)(1) (granting the Board jurisdiction to “decide
both the issue of discrimination and the appealable ac-
tion”). We do not have jurisdiction over mixed cases “in
which the employee (or former employee) complains of se-
rious adverse action prompted, in whole or in part, by the
employing agency’s violation of federal antidiscrimination
laws.” Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 437
(2017); see also McCoy v. Merit Sys. Prot. Bd., 121 F.4th
204, 207 (Fed. Cir. 2024). Although Mr. Blevins alleges
that he “was affected by an improper restoration decision,”
Appellant’s Reply Br. 13, Mr. Blevins fails to “put forth
substantively as a basis for the adverse action” his discrim-
ination claims. See, e.g., Meehan v. U.S. Postal Serv.,
718 F.2d 1069, 1074 (Fed. Cir. 1983); see also 5 U.S.C.
§ 7702(a)(1)(B). Mr. Blevins does not specifically allege
that the restoration decision itself was tainted by discrim-
ination; rather, Mr. Blevins’s filings and pleadings are fo-
cused on his Equal Employment Opportunity (“EEO”)
complaint filed in February or March 2018, regarding the
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BLEVINS v. MSPB 6
denial of DRAC review. App’x 33, 61, 91; Appellant’s Reply
Br. 8. Thus, we conclude that we have jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(9).
B.
Next, we address whether the Board erred in determin-
ing that it lacked jurisdiction over Mr. Blevins’s restoration
appeal. Mr. Blevins argues that the Board should have
evaluated his claim for restoration because the USPS “did
not respond to his attempts to accept the position,” Appel-
lant’s Br. 4, and “had an obligation to provide [him] with a
suitable modified assignment,” id. at 5.2 In addition,
Mr. Blevins argues that the Board “failed to consider [the
USPS’s] failure to respond to [him].” Id. at 6. The govern-
ment responds that the Board did not err in determining
that Mr. Blevins could not meet his jurisdictional burden
because he failed to non-frivolously allege that his absence
was due to a compensable injury. Appellee’s Br. 15. We
agree with the government.
An employee who has suffered a compensable injury
enjoys certain rights to be restored depending on whether
the employee is partially or fully recovered. 5 U.S.C.
§ 8151(b); 5 C.F.R. § 353.301. “An individual who is par-
tially recovered from a compensable injury 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). To establish jurisdiction under 5
C.F.R. § 353.304(c), a petitioner must prove by preponder-
ant evidence nonfrivolous allegations of: “(1) absence due
to a compensable injury; (2) sufficient recovery from the in-
jury to return to duty on a part time basis or in a less phys-
ically demanding position; (3) agency denial of a request for
restoration; and (4) denial of restoration rendered arbi-
trary and capricious by agency failure to perform its
2 We cite to the ECF page numbers.
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BLEVINS v. MSPB 7
obligations under 5 C.F.R. [§ ]353.301(d).” Bledsoe v. Merit
Sys. Prot. Bd., 659 F.3d 1097, 1104 (Fed. Cir. 2011); 5
C.F.R. § 1201.57(b) (“[A]n appellant who initiates an ap-
peal covered by this section must make nonfrivolous alle-
gations . . . with regard to the substantive jurisdictional
elements applicable to the particular type of appeal he or
she has initiated.”).
Mr. Blevins has not made any nonfrivolous allegations
that his absence was due to his compensable injury, and
therefore, the Board did not err in concluding that
Mr. Blevins did not meet his jurisdictional burden. When
Mr. Blevins attempted to accept the USPS’s job offer in
May and July 2018, his absence could not have been due to
his compensable injury. App’x 67, 85. As the Board found,
“[a]fter April 2018, when OWCP found that [Mr. Blevins]
failed to accept a suitable job offer, his absence was no
longer due to his compensable injury because he had re-
jected work he could have performed.” Final Decision
at *3; see also App’x 48–49. “Decisions on the suitability of
an offered position are within the exclusive domain of the
OWCP,” and OWCP based its decision on medical docu-
mentation from Mr. Blevins’s physician. See New v. Dep’t
of Veterans Affs., 142 F.3d 1259, 1265 (Fed. Cir. 1998); see
App’x 48–49 (noting that OWCP found the USPS’s job offer
“suitable in accordance with [Mr. Blevins’s] medical limita-
tions, provided by [his] treating physician”). Mr. Blevins’s
arguments, without more, do not show arbitrary or capri-
cious behavior. Thus, the Board did not err in affirming
the initial decision dismissing Mr. Blevins’s restoration ap-
peal for lack of jurisdiction.
III. CONCLUSION
We have considered Mr. Blevins’s remaining argu-
ments, including but not limited to the arguments raised
in Petitioner’s Memorandum in Lieu of Oral Argument,
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BLEVINS v. MSPB 8
ECF No. 25, and find them unpersuasive.3 For the above
reasons, we affirm.
AFFIRMED
COSTS
No costs.
3 Mr. Blevins also argues that the Board failed to
“properly consider the precedent set by Sanchez v. U.S.
Postal Service or Kinglee v. U.S. Postal Service.” Appel-
lant’s Br. 8. However, neither case focused on the jurisdic-
tional issue here—whether the absence was due to a
compensable injury. Sanchez v. U.S. Postal Serv.,
114 M.S.P.R. 345, 349 (2010); Kinglee v. U.S. Postal Serv.,
114 M.S.P.R. 473, 477–78 (2010). Furthermore,
Mr. Blevins argues that he was denied the fundamental
right to be present at his hearing. Appellant’s Reply Br. 12.
But our case law is clear that Mr. Blevins was not entitled
to a hearing because he did not “meet the threshold re-
quirement of making non-frivolous allegations of fact
which, if true, would be sufficient to establish the Board’s
jurisdiction.” Bledsoe, 659 F.3d at 1102; see also Garcia
v. Dept. of Homeland Sec., 437 F.3d 1322, 1344 (Fed. Cir.
2006) (en banc) (“[O]nce a claimant makes non-frivolous
claims of Board jurisdiction, namely claims that, if proven,
establish the Board’s jurisdiction, then the claimant has a
right to a hearing.” (emphasis added)).
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