UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
SCOTT THATCHER, DOCKET NUMBER Appellant, CH-844E-16-0608-I-1
v.
OFFICE OF PERSONNEL DATE: April 27, 2022 MANAGEMENT, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert R. McGill, Esquire, Walkersville, Maryland, for the appellant.
Linnette Scott, Washington, D.C., for the agency.
BEFORE
Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management that denied his application for disability retirement under the Federal Employees ’ Retirement System (FERS). Generally, we grant petitions such as this one only in
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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
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 and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2 On petition for review, the appellant makes the following arguments: the administrative judge improperly relied on her own characterization of the appellant’s job duties and a selective reading of the position description instead of relying on his provided testimony; the administrative judge failed to credit the appellant’s testimony concerning his medical issues; and the administrative judge failed to properly credit the provided medical evidence and testimony and substituted her own “medical opinion” as to the appellant’s capabilities with that of the appellant’s treating physician, contrary to decisions of the U.S. Court of Appeals for the Federal Circuit in Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034 (Fed. Cir. 2007) and Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993), and the Board’s decision in Henderson v. Office of Personnel Management, 117 M.S.P.R. 313 (2012). Petition for Review File, Tab 1. ¶3 After considering the appellant’s arguments on review and reviewing the record, we discern no reason to disturb the initial decision. In particular, we agree with the administrative judge’s finding that the appellant has failed to show 3
that his medical conditions caused a deficiency in his performance, attendance, or conduct, or that they were incompatible with useful and efficient service or retention in his position. Initial Appeal File, Tab 16, Initial Decision 2 at 11-14; see Henderson, 117 M.S.P.R. 313, ¶ 16; see also Jackson v. Office of Personnel Management, 118 M.S.P.R. 6, ¶ 7 (2012). We also conclude that the administrative judge properly considered the appellant’s subjective evidence concerning his medical conditions, as well as the medical record evidence and treating physician testimony. See Henderson, 117 M.S.P.R. 313, ¶ 19. ¶4 Accordingly, we affirm the administrative judge’s conclusion that the appellant has failed to meet his burden of proving his entitlement to disa bility retirement under FERS. Initial Decision at 14.
NOTICE OF APPEAL RIGHTS 3 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 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
2 During the adjudication of the appellant’s petition for review, it was discovered that the Hearing Compact Discs (HCD) in the paper file did not match the recordings uploaded to the electronic file. Initial Appeal File, Tabs 14-15; HCDs 1-2. The correct and complete recordings were replaced in the paper and electronic files, but as a consequence, the citations to the HCDs in the initial decision are now incorrect. In the revised paper and electronic files, the testimony of the appellant’s physician is contained in Tab 14 and the testimony of the appellant’s friend and the appellant are located in Tab 15. 3 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. 4
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. 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.
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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
SCOTT THATCHER, DOCKET NUMBER Appellant, CH-844E-16-0608-I-1
v.
OFFICE OF PERSONNEL DATE: April 27, 2022 MANAGEMENT, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert R. McGill, Esquire, Walkersville, Maryland, for the appellant.
Linnette Scott, Washington, D.C., for the agency.
BEFORE
Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management that denied his application for disability retirement under the Federal Employees ’ Retirement System (FERS). Generally, we grant petitions such as this one only in
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
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 and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2 On petition for review, the appellant makes the following arguments: the administrative judge improperly relied on her own characterization of the appellant’s job duties and a selective reading of the position description instead of relying on his provided testimony; the administrative judge failed to credit the appellant’s testimony concerning his medical issues; and the administrative judge failed to properly credit the provided medical evidence and testimony and substituted her own “medical opinion” as to the appellant’s capabilities with that of the appellant’s treating physician, contrary to decisions of the U.S. Court of Appeals for the Federal Circuit in Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034 (Fed. Cir. 2007) and Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993), and the Board’s decision in Henderson v. Office of Personnel Management, 117 M.S.P.R. 313 (2012). Petition for Review File, Tab 1. ¶3 After considering the appellant’s arguments on review and reviewing the record, we discern no reason to disturb the initial decision. In particular, we agree with the administrative judge’s finding that the appellant has failed to show 3
that his medical conditions caused a deficiency in his performance, attendance, or conduct, or that they were incompatible with useful and efficient service or retention in his position. Initial Appeal File, Tab 16, Initial Decision 2 at 11-14; see Henderson, 117 M.S.P.R. 313, ¶ 16; see also Jackson v. Office of Personnel Management, 118 M.S.P.R. 6, ¶ 7 (2012). We also conclude that the administrative judge properly considered the appellant’s subjective evidence concerning his medical conditions, as well as the medical record evidence and treating physician testimony. See Henderson, 117 M.S.P.R. 313, ¶ 19. ¶4 Accordingly, we affirm the administrative judge’s conclusion that the appellant has failed to meet his burden of proving his entitlement to disa bility retirement under FERS. Initial Decision at 14.
NOTICE OF APPEAL RIGHTS 3 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 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
2 During the adjudication of the appellant’s petition for review, it was discovered that the Hearing Compact Discs (HCD) in the paper file did not match the recordings uploaded to the electronic file. Initial Appeal File, Tabs 14-15; HCDs 1-2. The correct and complete recordings were replaced in the paper and electronic files, but as a consequence, the citations to the HCDs in the initial decision are now incorrect. In the revised paper and electronic files, the testimony of the appellant’s physician is contained in Tab 14 and the testimony of the appellant’s friend and the appellant are located in Tab 15. 3 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. 4
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. 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. 5
(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 tha t 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: 6
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. 4 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).
4 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 revi ew 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. N o. 115-195, 132 Stat. 1510. 7
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: /s/ for Jennifer Everling Acting Clerk of the Board Washington, D.C.