UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
JOHN DOE, 1 DOCKET NUMBER Appellant, AT-844E-21-0501-I-1
v.
OFFICE OF PERSONNEL DATE: July 19, 2023 MANAGEMENT, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Michael Kleinman, Houston, Texas, for the appellant.
Jo Bell, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman Raymond A. Limon, Member
1 Due to certain information contained in the appeal file, the Board finds it appropriate to grant the appellant anonymity sua sponte. Accordingly, this Final Order has been recaptioned as “John Doe.” Additionally, the initial decision in this matter has been recaptioned as “John Doe” and a reference to the appellant’s name in the initial decis ion has been changed to “John Doe.” 2 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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
FINAL ORDER
¶1 The Office of Personnel Management (OPM) has filed a petition for review of the initial decision, which reversed its final decision and granted the appellant’s application for disability retirement under the Federal Employees’ Retirement System. On petition for review, OPM argues that the appellant failed to establish that her claimed conditions were disabling or that these conditions could not be accommodated. 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 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 find that the appellant’s disabling conditions could be expected to continue for at least 1 year from the date of her application, we AFFIRM the initial decision. ¶2 The administrative judge did not make a specific finding that the appellant’s condition was expected to continue for at least 1 year from the date she filed her disability retirement application. On review, OPM argues that because the appellant did not have a disabling condition, any such disability was necessarily not expected to continue for 1 year beyond the date of her disability retirement application. Petition for Review File, Tab 1 at 6-7. OPM did not otherwise make any specific argument on this point. 3
¶3 The record shows that the appellant applied for disability retirement on January 23, 2020. Initial Appeal File (IAF), Tab 18 at 59-63. On March 20, 2020, a psychiatrist, Dr. S., provided an assessment of the appellant’s conditions and concluded, among other things, that the expected duration of her disability would be “at least 18 months,” if not longer. IAF, Tab 17 at 51-56; see IAF, Tab 13 at 17 (noting that the undated assessment should have been dated March 20, 2020). The record also includes an updated statement from Dr. S in response to OPM’s initial decision denying the appellant’s disability retirement application, dated April 3, 2021—more than 1 year after the date of the appellant’s disability retirement application—stating that based on his medical opinion, the appellant had been disabled and unable to work in her positio n prior to her removal in January 2019, that she continued to remain completely unable to work in her position from the date of her removal up to the present date, and that she would continue to remain permanently and indefinitely unable to do so into the future. IAF, Tab 13 at 7, 17. Finally, the record includes a letter from one of the appellant’s regular care providers dated June 26, 2020, stating that despi te her continued treatment, the appellant would not “for the foreseeable future be able to recover sufficiently to meet the requirements and expectations for the position she previously held.” IAF, Tab 18 at 117-18. Accordingly, we conclude that appellant established that her conditions were exp ected to continue for at least 1 year beyond the date of her disability retirement application. 3
ORDER ¶4 We ORDER OPM to grant the appellant’s application for disability retirement benefits. OPM must complete this action no later than 20 days after the date of this Order.
3 On review, the appellant filed a motion for leave to request interim relief. PFR File, Tab 3. We deny the appellant’s request as moot, as interim relief is in effect only pending the disposition of a petition for review. See 5 U.S.C. § 7701(b)(2)(A); Garcia v. Department of State, 106 M.S.P.R. 583, ¶ 7 (2007). 4
¶5 We also ORDER OPM to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the appellant to provide all necessary information OPM requests to help it carry out the Board’s Order. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b). ¶6 No later than 30 days after OPM tells the appellant it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that OPM did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes OPM has not fully carried out the Board’s Order, and should include the dates and results of any communications with OPM. See 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
JOHN DOE, 1 DOCKET NUMBER Appellant, AT-844E-21-0501-I-1
v.
OFFICE OF PERSONNEL DATE: July 19, 2023 MANAGEMENT, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Michael Kleinman, Houston, Texas, for the appellant.
Jo Bell, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman Raymond A. Limon, Member
1 Due to certain information contained in the appeal file, the Board finds it appropriate to grant the appellant anonymity sua sponte. Accordingly, this Final Order has been recaptioned as “John Doe.” Additionally, the initial decision in this matter has been recaptioned as “John Doe” and a reference to the appellant’s name in the initial decis ion has been changed to “John Doe.” 2 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
FINAL ORDER
¶1 The Office of Personnel Management (OPM) has filed a petition for review of the initial decision, which reversed its final decision and granted the appellant’s application for disability retirement under the Federal Employees’ Retirement System. On petition for review, OPM argues that the appellant failed to establish that her claimed conditions were disabling or that these conditions could not be accommodated. 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 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 find that the appellant’s disabling conditions could be expected to continue for at least 1 year from the date of her application, we AFFIRM the initial decision. ¶2 The administrative judge did not make a specific finding that the appellant’s condition was expected to continue for at least 1 year from the date she filed her disability retirement application. On review, OPM argues that because the appellant did not have a disabling condition, any such disability was necessarily not expected to continue for 1 year beyond the date of her disability retirement application. Petition for Review File, Tab 1 at 6-7. OPM did not otherwise make any specific argument on this point. 3
¶3 The record shows that the appellant applied for disability retirement on January 23, 2020. Initial Appeal File (IAF), Tab 18 at 59-63. On March 20, 2020, a psychiatrist, Dr. S., provided an assessment of the appellant’s conditions and concluded, among other things, that the expected duration of her disability would be “at least 18 months,” if not longer. IAF, Tab 17 at 51-56; see IAF, Tab 13 at 17 (noting that the undated assessment should have been dated March 20, 2020). The record also includes an updated statement from Dr. S in response to OPM’s initial decision denying the appellant’s disability retirement application, dated April 3, 2021—more than 1 year after the date of the appellant’s disability retirement application—stating that based on his medical opinion, the appellant had been disabled and unable to work in her positio n prior to her removal in January 2019, that she continued to remain completely unable to work in her position from the date of her removal up to the present date, and that she would continue to remain permanently and indefinitely unable to do so into the future. IAF, Tab 13 at 7, 17. Finally, the record includes a letter from one of the appellant’s regular care providers dated June 26, 2020, stating that despi te her continued treatment, the appellant would not “for the foreseeable future be able to recover sufficiently to meet the requirements and expectations for the position she previously held.” IAF, Tab 18 at 117-18. Accordingly, we conclude that appellant established that her conditions were exp ected to continue for at least 1 year beyond the date of her disability retirement application. 3
ORDER ¶4 We ORDER OPM to grant the appellant’s application for disability retirement benefits. OPM must complete this action no later than 20 days after the date of this Order.
3 On review, the appellant filed a motion for leave to request interim relief. PFR File, Tab 3. We deny the appellant’s request as moot, as interim relief is in effect only pending the disposition of a petition for review. See 5 U.S.C. § 7701(b)(2)(A); Garcia v. Department of State, 106 M.S.P.R. 583, ¶ 7 (2007). 4
¶5 We also ORDER OPM to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the appellant to provide all necessary information OPM requests to help it carry out the Board’s Order. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b). ¶6 No later than 30 days after OPM tells the appellant it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that OPM did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes OPM has not fully carried out the Board’s Order, and should include the dates and results of any communications with OPM. See 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 4 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 4 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
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 requ irements. 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 partic ular 6
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 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. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, t hen 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 th eir respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 7
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: 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 8
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
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.
5 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. 9
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/ for Jennifer Everling Acting Clerk of the Board Washington, D.C.