George Bearden v. Office of Personnel Management ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEORGE BEARDEN, DOCKET NUMBER
Appellant, DC-844E-21-0215-I-2
v.
OFFICE OF PERSONNEL DATE: December 14, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christopher Forasiepi , Bobby Devadoss , and Shane Robertson , Dallas,
Texas, for the appellant.
Jo Antonette Bell , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed an Office of Personnel Management (OPM) reconsideration decision
denying his disability retirement application. On petition for review, the
appellant argues, among other things, that his former employing agency failed to
submit a Standard Form 3112B, Supervisor’s Statement, for his disability
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
retirement application that would have helped establish his disability, and that the
administrative judge failed to consider all of his medical records, but instead
selectively cited certain portions to affirm OPM’s denial of his disability
retirement application. 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 We agree with the administrative judge that the appellant failed to
demonstrate that he was disabled for purposes of entitlement to disability
retirement benefits. The appellant’s post-removal assertions and evidence of his
disability are entitled to little weight. The U.S. Court of Appeals for the Federal
Circuit found in Reilly v. Office of Personnel Management, 571 F.3d 1372,
1380-82 (Fed. Cir. 2009), that post-separation evidence of an appellant’s medical
condition may be considered in determining eligibility for disability retirement
benefits, and can be very probative of a prior disability “[w]here proximity in
time, lay testimony, or some other evidence provides the requisite link to the
relevant period.” However, the court added that there are circumstances when
such evidence would be irrelevant or entitled to little weight, such as when a later
medical condition is attributable to some incident that occurred after the period in
3
question, or when there is a substantial lapse of time and a lack of evidence
connecting the prior condition to the more recent medical evidence. Id. at 1382.
These are the precise circumstances presented here. The appellant’s claim for
disability retirement benefits relies heavily on an August 31, 2020 doctor’s letter,
in which findings are based on the state of the appellant’s medical conditions as
of that date. Bearden v. Office of Personnel Management, MSPB Docket
No. DC-844E-21-0215-I-1, Initial Appeal File (IAF), Tab 20 at 4-7. What is
missing from this letter is an evidentiary link demonstrating that the appellant
was disabled during the relevant period, i.e., prior his February 26, 2019 removal
from his former employing agency for misconduct. The absence of this link,
combined with the lapse in time between the appellant’s removal and the
August 2020 letter, renders the letter entitled to little weight. Further, to the
extent that the letter describes the appellant’s subjective reports of disabling
conditions extending to before his removal, such reports are not entitled to weight
because they are contradicted by the most competent medical evidence, which is
the evidence contemporaneous with the appellant’s pre-removal service or
following, but not significantly after his removal, none of which indicates that the
appellant was disabled during his Federal service for purposes of entitlement to
disability retirement benefits. 2 IAF, Tabs 10-21.
2
On review, the appellant argues for the first time that his former employing agency
failed to submit a Standard Form (SF) 3112B, Supervisor’s Statement, as part of his
disability retirement application that would have helped establish his entitlement to
disability retirement benefits, and that the Department of Veterans Affairs had upgraded
his disability rating from 90% to 100% “total and permanent.” Petition for Review
(PFR) File, Tab 3 at 4-5. The appellant did not explain why he was unable to raise
these arguments prior to the close of the record on appeal and we thus need not consider
them. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016). In any event, the
appellant makes no proffer of the information that a completed SF-3112B would have
contained or the particular import of his upgraded disability rating, and we are thus
unable to assess the relevance of his claims. Further, the appellant could have obtained
the information sought on the SF-3112B from his former employing agency through the
discovery process. Brownscombe v. Office of Personnel Management, 37 M.S.P.R. 382,
386 (1988), aff’d, 871 F.2d 1097 (Fed. Cir. 1989) (Table); 5 C.F.R. § 1201.73 .
Similarly, we need not consider the March 18, 2020 doctor’s note the appellant submits
for the first time on review, PFR File, Tab 3 at 6, because he fails to show that it was
4
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 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.
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
unavailable, despite the exercise of due diligence, before the record closed below.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). In any event, the letter
post-dates the appellant’s removal by over 1 year and does not establish that he was
disabled prior to his removal. Finally, regarding the appellant’s argument that the
administrative judge did not consider all of the evidence and cited only selected
portions to support her finding that he failed to establish his entitlement to disability
retirement benefits, PFR File, Tab 3 at 5, the fact that the administrative judge did not
mention all of the evidence does not mean that she did not consider it in reaching her
decision. Marques v. Department of Health and Human Services , 22 M.S.P.R. 129, 132
(1984).
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.
5
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
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, then you must file
6
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:
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
7
(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).
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.
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 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 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.