Green v. United States Postal Service

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3425
RONALD L. GREEN,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Ronald L. Green, of Henderson, Nevada, pro se.
William P. Rayel, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson,
Director, and Kathryn A. Bleecker, Assistant Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3425
RONALD L. GREEN,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
______________________________
DECIDED: May 11, 2007
______________________________
Before LOURIE, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and SCHALL, Circuit
Judge.
PER CURIAM.
This is yet another chapter in the protracted saga of the petitioner Ronald L.
Green’s unsuccessful attempts to require the United States Postal Service (“Postal
Service”) to rehire him, following his alleged recovery from the disability that led to the
termination of his employment. The story includes three trips to this court, one to the
Ninth Circuit and several to the Merit Systems Protection Board (“Board”), and his filing
of two district court suits against the Postal Service. Green v. Pottter, CV-S-00-0155-
LRH (RJJ) (D. Nev. 2002) (order consolidating Green’s two suits and granting Potter,
the Postmaster General, summary judgment), aff’d Green v. Potter, 70 Fed. Appx. 976(9th Cir. 2003). In the present case, we reject Green’s numerous challenges to the
Board’s latest decision that rejected his challenges to the Postal Service’s action, and
affirm the Board.
I
In January, 1994, Green was separated from his job with the Postal Service
because he had a form of depression that disabled him from performing his duties, and
began receiving disability compensation. Thereafter he contended that his disability
had terminated and that the Postal Service improperly had refused to reinstate him.
The Board dismissed his two appeals, and this court affirmed both dismissals. Green v.
U.S. Postal Serv., MSBP Docket No. DE-0752-95-0041-I-1 (Initial Decision, February
23, 1995), aff’d Green v. U.S. Postal Serv., 78 F.3d 602, 1996 WL 39683 (Fed. Cir.
1996) (Table) (“Green I”); Green v. U.S. Postal Serv., MSPB Docket No. SF-0353-98-
0034-I-1 (Initial Decision, Oct. 31 1997), aff’d Green v. Merit Sys. Protection Bd., 194
F.3d 1330, 1999 WL 132219 (Fed. Cir. 1999) (Table) (“Green II”).
In December, 1997, the Office of Workers’ Compensation Programs terminated
Green’s compensation benefits because he had fully recovered. In January, 1998, he
filed with the Postal Service another request for restoration to duty, and a Department of
Veteran Affairs’ psychiatrist advised the Postal Service that Green was free of mental
illness. Green v. U.S. Postal Serv., 194 F.3d 1330, 1999 WL 127499, at *1 (Fed. Cir.
1999) (Table) (“Green III”), cert. denied, 528 U.S. 912 (1999). A series of administrative
disputes with the Postal Service followed, which culminated in the Postal Service
scheduling an appointment for him with a psychiatrist. When Green failed to keep that
appointment, apparently on the ground that he believed it was unnecessary, the Postal
2006-3425 2
Service stopped considering him for re-employment. We sustained the Postal Service’s
action as reasonable. Id. at *2.
Green underwent further psychiatric examinations, which produced disagreement
among the doctors over whether he was able to return to work. The Postal Service
continued to refuse to restore him to duty, and in 2005 he appealed the Postal Service’s
latest such ruling to the Board.
The full Board affirmed and modified the administrative judge’s initial decision
(rendered after an evidentiary hearing on one of Green’s contentions) rejecting Green’s
challenges to the Postal Service’s refusal to reinstate him. The Board rejected Green’s
contention that the Postal Service had violated the Uniformed Services Employment
Rights Act of 1994 and the Veteran’s Employment Opportunites Act of 1998. It ruled
that his challenge to the Postal Service’s failure to reemploy him in 1998 was barred by
res judicata and untimeliness.
II
Green presents a potpourri of challenges to the Postal Service’s refusal to
reemploy him and the Board’s affirmance of those actions. We have considered but
have rejected all of these contentions. Only four of them warrant any discussion, and
those but briefly.
A. Green contends that the Postal Service’s refusal to reemploy him violated two
federal statutes. One was the Uniform Services Employment Rights Act of 1998, 38
U.S.C. § 4311, under which a veteran claiming discrimination in employment must show
that his military status was “a ‘motivating factor’” in the Agency’s employment action
against him. Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001).
2006-3425 3
Green has shown nothing that even suggests, let alone establishes, that his military
service (completed more than twenty years earlier) had anything to do with the Postal
Service’s refusal to rehire him. In these circumstances, the Board’s administrative
judge did not abuse his broad discretion over the admission of evidence in refusing to
permit Green to testify on his claim under this statute.
The other statute was the Veterans Preference Act, which, in conjunction with
Postal Service’s Employee and Labor Relations Manual (“ELM”), requires the Postal
Service to give a veteran a preference in employment when he recovers from a
compensable injury more than a year after his disability compensation began. ELM
§ 546.131. An implementing regulation, 5 C.F.R. § 353.301(b), requires that to obtain
such priority the veteran must request employment within 30 days of the cessation of
compensation benefits. Although Green initially complied with that requirement by
requesting reemployment within 30 days after he ceased receiving benefits on
December 15, 1997, those proceedings terminated when the Postal Service stopped
considering his application, because Green had failed to appear for his scheduled
psychiatric examination—an action this court upheld as reasonable. Green III at *2, *5.
The Veterans Preference Act request requirement is subject to the Board’s
general regulatory requirement that “a restoration appeal must be filed within 30 days
after the effective date of the action being appealed or 30 days after the date of receipt
of the agency’s decision, whichever is later,” 5 C.F.R. § 1201.22(b), “unless the
appellant demonstrates good cause for the delay.” Id. § 1201.22(c). The Board
properly concluded that Green’s ensuing appeals to it were untimely because they were
2006-3425 4
not filed within 30 days of the Postal Service’s rulings he was challenging, and that he
had not shown the requisite good cause.
B. Green challenges the Postal Service’s refusal to reinstate him in 1998. The
Board correctly held that our 1999 decision upholding that action was res judicata of this
claim, and required its rejection. This case satisfied the three requirements for res
judicata set forth in International Air Response v. United States, 302 F.3d 1363, 1368
(Fed. Cir. 2002); (1) the parties in this case and the earlier one are identical; (2) the
previous decision was a final judgment on the merits; and (3) the present claim is based
on the same set of transactional facts as the claim previously adjudicated, i.e., the
Postal Service’s refusal to reemploy him. Green III at *3; see also, Spruill v. Merit Sys.
Protection Bd., 978 F.2d 679, 686 (Fed. Cir. 1992) (dismissal for failure to state a claim
is a decision on the merits).
C. Green contends that the Postal Service exceeded its authority when in 1998 it
undertook independently to determine whether Green was qualified to return to work,
after the Office of Workers’ Compensation Programs terminated his disability
compensation upon ruling that his disability had terminated. Green relies upon 5 U.S.C.
§ 8128 (b), which provides that the action of the Secretary of Labor or his designatee (in
this case the Office of Workers’ Compensation Programs), “in awarding or denying
[disability] payment” “is (1) final and conclusive for all purposes and with respect to all
questions of law and fact; and (2) not subject to review by another official of the United
States or by a court by mandamus or otherwise.” These provisions, however, preclude
review of the Secretary’s allowance or denial of disability payments—here the
termination of Green’s disability payments. They do not preclude the Postal Service
2006-3425 5
from itself determining whether a disabled former employee whose disability payments
have been terminated is qualified to return to work. Cf. Minor v. Merit Sys. Protection
Bd., 819 F.2d 280, 283 (Fed. Cir. 1987) (“a decision of OWCP or the Employees’
Compensation Appeal Board ‘does not bind’ the MSPB acting within its own separate
statutory sphere of deciding the propriety of restoration”); Nat’l Assoc. of Letter Carriers
v. U.S. Postal Serv., 272 F.3d 182 (3rd Cir. 2001) (holding that the arbitrator of an
employee’s wrongful termination claim was not bound by the factual conclusions made
by the Office of Workers’ Compensation).
CONCLUSION
The decision of the Board is
AFFIRMED.
2006-3425 6