Durr v. MSPB

Case: 22-1072 Document: 42 Page: 1 Filed: 11/15/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEPHEN DURR,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
UNITED STATES POSTAL SERVICE,
Intervenor
______________________
2022-1072
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-4324-17-0324-M-1.
______________________
Decided: November 15, 2022
______________________
STEPHEN DURR, Chicago, IL, pro se.
JEFFREY GAUGER, Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
KELLY A. KRYSTYNIAK, Commercial Litigation Branch,
Case: 22-1072 Document: 42 Page: 2 Filed: 11/15/2022
2 DURR v. MSPB
Civil Division, United States Department of Justice, Wash-
ington, DC, for intervenor. Also represented by BRIAN M.
BOYNTON, PATRICIA M. MCCARTHY, DOUGLAS K. MICKLE.
______________________
Before CHEN, CLEVENGER, and CUNNINGHAM, Circuit
Judges.
PER CURIAM.
Mr. Stephen Durr appeals a final decision of the Merit
Systems Protection Board (Board or MSPB) dismissing his
appeal alleging violations of the Uniformed Services Em-
ployment and Reemployment Rights Act of 1994
(USERRA) by his former employer, the United States
Postal Service (USPS). See Durr v. U.S. Postal Serv., No.
CH-4324-17-0324-M-1, 2021 WL 3287973 (M.S.P.B. July
30, 2021) (Board Decision) (SAppx. 1–19). 1 Because the
Board did not abuse its discretion in finding the doctrine of
laches applies, we affirm.
BACKGROUND
Mr. Durr was honorably discharged from the U.S.
Army in January 1993 and hired by USPS in March 1994.
SAppx. 2, 32. On January 16, 1996, USPS recorded Mr.
Durr as being absent without official leave (AWOL).
SAppx. 2, 27. Mr. Durr continued to fail to report to work,
and on April 24, 1996, USPS notified him of a proposal for
his removal. Id. The notice gave Mr. Durr fourteen days
to respond, but he did not respond. SAppx. 2, 28. On May
16, 1996, USPS sent Mr. Durr a letter noting his non-
1 “SAppx.” citations herein refer to the appendix
filed concurrently with Respondent’s brief. Additionally,
because the reported version of the Board’s decision is not
paginated, citations herein are to the version of the Board
decision included in the appendix—e.g., Board Decision at
1 can be found at SAppx. 1.
Case: 22-1072 Document: 42 Page: 3 Filed: 11/15/2022
DURR v. MSPB 3
response to the removal proposal and informing him that
he would be removed from service, effective June 1, 1996.
SAppx. 29–30. The letter also notified Mr. Durr of his right
to appeal “[the] decision . . . within 30 days from the effec-
tive date of [the] decision.” SAppx. 29. Mr. Durr did not
timely challenge his removal.
On May 14, 2015, nearly 20 years after his removal,
Mr. Durr filed an appeal to the Board challenging his 1996
AWOL charge and his subsequent removal. SAppx. 2. An
administrative judge dismissed that appeal, the Board af-
firmed, and we dismissed Mr. Durr’s appeal of the Board’s
affirmance for failure to prosecute. Durr v. Merit Sys. Prot.
Bd., No. 2016-1700 (Fed. Cir. May 5, 2016).
Mr. Durr subsequently filed another appeal to the
Board on April 10, 2017 requesting remedial action under
USERRA. SAppx. 4. The administrative judge dismissed
for lack of jurisdiction, which the Board made final. SAppx.
34. Mr. Durr subsequently appealed to this court, and we
reversed the dismissal on the basis that Mr. Durr “raised
allegations sufficient to establish the MSPB’s jurisdiction
over his appeal under USERRA” and remanded the case
back to the Board. Durr v. Merit Sys. Prot. Bd., 844 F.
App’x 329, 331–32 (Fed. Cir. 2021).
On remand, USPS moved for dismissal based on the
doctrine of laches. SAppx. 44–46. USPS contended Mr.
Durr waited over twenty years to bring his USERRA claim
and that he did not provide any explanation for the delay.
SAppx. 44–45. USPS further asserted that the employees
who had personal knowledge regarding Mr. Durr’s removal
were either retired or deceased. SAppx. 45. USPS also
submitted a declaration by Tim Markland, Manager of La-
bor Relations for the Central Illinois District of USPS, ex-
plaining that the agency attempted, but was unable, to
locate electronic or hardcopy records related to Mr. Durr’s
removal. SAppx. 45, 47–51. Mr. Markland’s declaration
explained he was unsurprised with the lack of
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4 DURR v. MSPB
documentation because of a USPS policy stating retention
of documents relating to disciplinary or adverse actions
may not exceed 10 years beyond the employee’s separation
date. SAppx. 50 ¶ 9. USPS also averred it faced excessive
back pay liability. SAppx. 46.
The administrative judge issued a show cause order
asking why the appeal should not be dismissed based on
the laches doctrine. SAppx. 56–58. Mr. Durr responded
that USPS’s inability to locate the documents related to his
removal was due to inadequate recordkeeping. SAppx. 60.
Mr. Durr further averred that he did not intentionally de-
lay filing his appeal and that any delay was caused by men-
tal incapacitation. SAppx. 64. Mr. Durr also contended
that he did not discover he was wrongfully removed until
May 2015. Id.The administrative judge dismissed Mr. Durr’s
USERRA claim as barred by laches. Board Decision at 1–
12. The administrative judge found Mr. Durr’s twenty-one
year delay in bringing his USERRA claim unreasonable
and prejudicial to USPS’s ability to respond. Id. at 11–12.
While the administrative judge acknowledged Mr. Durr’s
medical diagnoses for various mental disorders, the judge
found Mr. Durr was competent enough to stand trial on
multiple occasions. Id. at 10–11. The administrative judge
also found the medical evidence (1) showed that Mr. Durr
could control his conditions through use of medication but
that he refused medication on occasion and (2) did not show
sufficient severity and duration of a mental disorder while
Mr. Durr was taking medication. Id. at 9–11. The admin-
istrative judge’s decision became the Board’s final decision
when Mr. Durr did not petition for Board review within 35
days. See 5 C.F.R. § 1201.113; Board Decision at 12–13.
Mr. Durr timely appealed to this court. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
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DURR v. MSPB 5
A party claiming a laches defense must show “unrea-
sonable delay by the petitioner, and prejudice to the re-
spondent because of the delay.” Hoover v. Dep’t of Navy,
957 F.2d 861, 863 (Fed. Cir. 1992). We do not set aside a
Board decision unless it is “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law, rule,
or regulation having been followed; or (3) unsupported by
substantial evidence[.]” 5 U.S.C. § 7703(c); see also Bridge-
stone/Firestone Rsch., Inc. v. Auto. Club de l’Ouest de la
France, 245 F.3d 1359, 1361 (Fed. Cir. 2001).
Mr. Durr’s arguments do not persuade us that the
Board abused its discretion in dismissing Mr. Durr’s ap-
peal. Substantial evidence supports the Board’s finding
that Mr. Durr’s delay in bringing his USERRA claim was
both unreasonable and prejudicial. USPS notified Mr.
Durr of his removal and his right to appeal to the Board in
1996, yet he waited over twenty years after his removal to
bring his USERRA claim to the Board. SAppx. 6. Mr.
Durr’s period of delay is considerably longer than in Sleevi,
where we affirmed the Board’s dismissal of an USERRA
appeal based on the doctrine of laches because petitioner
delayed thirteen years to file his claim. Sleevi v. Merit Sys.
Prot. Bd., No. 2021-1447, 2021 WL 2879045, at *1 (Fed.
Cir. July 9, 2021). Moreover, Mr. Durr does not allege the
Board incorrectly decided or failed to account for any facts,
applied the wrong law, or failed to consider important
grounds. See Pet. Informal Br. 2.
To the extent that Mr. Durr argues his delay was rea-
sonable in light of his mental incapacitation, see Pet. Reply
Br. ¶¶ 5–6, substantial evidence supports the Board’s find-
ing that Mr. Durr’s mental conditions were not of such se-
verity and duration to cause Mr. Durr’s twenty-one-year
delay in bringing his USERRA claim to be reasonable. Spe-
cifically, the Board relied on medical records showing Mr.
Durr’s mental conditions were controllable, such that he
was competent to stand trial on various occasions during
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6 DURR v. MSPB
the delay period, and that he would refuse medication. See
Board Decision at 9–11. We do not discern any abuse of
discretion in the Board’s reasoning, which is supported by
substantial evidence.
We also find substantial evidence supports the Board’s
determination that Mr. Durr’s unreasonable delay preju-
diced the USPS. Because of the long period between Mr.
Durr’s removal and his USERRA claim, documentation
pertaining to Mr. Durr’s removal no longer exists. SAppx.
7–8. Moreover, relevant personnel with knowledge of Mr.
Durr’s removal have retired or passed away. SAppx. 8–9.
Mr. Durr makes no arguments to the contrary.
CONCLUSION
We have considered Mr. Durr’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the Board’s dismissal of Mr. Durr’s appeal based on
the doctrine of laches.
AFFIRMED
COSTS
No costs.