The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CELSO MALDONADO, DOCKET NUMBER
Appellant, PH-0752-18-0318-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: July 12, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrew Poulos, Jr. , Hamilton, New Jersey, for the appellant.
Christopher Hawthorne , Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the agency’s removal action. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 correct and supplement some of the administrative judge’s
statements in his analysis of the failure to satisfy a condition of employment
charge, we AFFIRM the initial decision.
BACKGROUND
The appellant was employed as a GS-06 Police Officer at Joint Base
McGuire-Dix-Lakehurst, New Jersey (JBMDL). Initial Appeal File (IAF), Tab 6
at 54. On May 11, 2011, the appellant broke his right fibula during a training
exercise. Id. at 95. The appellant’s injury required the surgical insertion of a
metal plate and 10 screws in his leg. Id.; IAF, Tab 8 at 38. Sometime thereafter,
the agency and a union representing civilian police officers began bargaining for
the implementation of the Physical Agility Test (PAT) for civilian police officers
at JBMDL. The agency ultimately reached an agreement with the union that the
PAT was a condition of employment, and it was documented in the appellant’s
position description and the agency’s regulations. IAF, Tab 7 at 25-27, 47 -48,
59-61, 79-82, 97. The PAT includes, among other things, a 1.5 mile run to be
completed in 16 minutes, 17 seconds. Id. at 82.
On June 14, 2017, the appellant underwent a fitness-for-duty examination.
IAF, Tab 10 at 27-34. The examining physician assistant, J.R., did not clear the
3
appellant for the 1.5 mile run due to his leg injury. Id. at 33. J.R. determined
that the appellant was medically qualified for his position, but she noted that he
had a restriction of running no more than 100 yards (300 feet) at a given time. Id.
at 34. Because the appellant requested that the agency grant him a waiver of the
1.5 mile run component of the PAT, IAF, Tab 6 at 104-05, Tab 7 at 5, J.R.
reassessed the appellant in November 2017, and cleared him for duty with no
restrictions, IAF, Tab 6 at 94-101. Because the results were inconsistent, 2 the
appellant underwent another fitness-for-duty examination on December 6, 2017.
IAF, Tab 12 at 5-6, Tab 19 at 58-59. The examining physician, S.C., determined
that the appellant was not medically qualified for his position due to his limiting
condition of running no more than 100 yards at a given time; thus, she did not
clear him for the 1.5 mile run. IAF, Tab 6 at 88-89. Based on the results of the
medical examination, the agency denied the appellant’s request for a waiver.
Id. at 82-83.
The agency proposed the appellant’s removal based on the following
charges: (1) inability to perform as a result of a medical condition; and
(2) failure to satisfy a condition of employment. Id. at 63. The appellant
submitted a response in writing that included, among other things, a letter from
his own physician stating that he was cleared to take a Job Task Scenario (JTS)
Appeals Test 3 as an alternate PAT. IAF, Tab 6 at 57, Tab 12 at 41, Tab 20 at 24.
2
It appears that the reason for the different recommendation in November 2017, was
due to the fact that J.R. had been provided with a job description that did not include
the 1.5 mile run or other high-impact activities. IAF, Tab 11 at 9. Based on this job
description, J.R. concluded that the appellant was able to complete all tasks required for
his position, and he was fit for duty. Id. A Human Resources Specialist provided a
declaration under penalty of perjury that he filled out the physical standards on the
Optional Form (OF)-178 (Certificate of Medical Examination), Part B, for the
appellant’s November 6, 2017 examination; he mistakenly did not include the 1.5 mile
run component of the PAT in the physical standards. IAF, Tab 19 at 58-59.
3
The JTS Appeals Test involves three scenarios: (1) Gate Detail, (2) Tactical
Response, and (3) Chase and Restrain Subject. IAF, Tab 7 at 82-86.
4
After considering his response, the agency removed the appellant from his
position, effective May 18, 2018. IAF, Tab 6 at 56-60.
The appellant filed the instant appeal alleging that the agency did not prove
its charges and retaliated against him for his prior equal employment opportunity
(EEO) activity. IAF, Tab 1 at 5. He did not request a hearing. Id. at 3.
During the pendency of the appeal, the appellant withdrew his affirmative defense
of EEO retaliation and requested that the case proceed on written submissions on
the “sole issue” of whether the agency proved its charges. IAF, Tab 18 at 4.
Based on the written record, the administrative judge affirmed the removal in a
March 8, 2019 initial decision. IAF, Tab 21, Initial Decision (ID) at 1, 14. He
found that the agency met its burden of proving its charges, nexus, and the
reasonableness of the penalty. Id. at 6-14.
5
The appellant has filed a petition for review. 4 Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
We affirm the administrative judge’s finding that the agency proved its charge of
inability to perform as a result of a medical condition.
When the removal is based on a current medical condition, the agency must
prove either a nexus between the employee’s medical condition and observed
deficiencies in his performance or conduct, or a high probability, given the nature
of the work involved, that his condition may result in injury to himself or others.
Haas v. Department of Homeland Security, 2022 MSPB 36, ¶ 20. In other words,
the agency must establish that the appellant’s medical condition prevents him
4
After the record closed on review, the appellant moved for leave to file an additional
pleading. Petition for Review (PFR) File, Tab 4 at 5-6. The Board’s regulations do not
provide for pleadings other than a petition for review, a cross petition for review, a
response to the petition for review or cross petition for review, and a reply to a
response. 5 C.F.R. § 1201.114(a). For the Board to consider a party’s pleading, other
than one of those set forth above, the party must file a motion seeking leave and
describe the nature and need for the pleading. 5 C.F.R. § 1201.114(a)(5). If a party
wishes to submit a pleading after the record is closed, the party must show that the
evidence is new, i.e., that it was not readily available before the record closed, and
material. 5 C.F.R. § 1201.114(a)(5), (k). Here, the appellant asserts that newly issued
Air Force Instruction (AFI) 31-118, which went into effect on March 5, 2020,
supersedes the prior regulations that govern the standards for civilian police officers for
the Air Force and that the appellant would have met the requirements of the new
instruction. PFR File, Tab 4 at 5. As stated above, the agency removed the appellant
from his position, effective May 18, 2018, and the initial decision was issued on
March 8, 2019. IAF, Tab 6 at 56-60, ID at 1. According to the appellant, the latest
version of the AFI 31-118 was issued more than 21 months after the appellant’s removal
and a year after issuance of the initial decision; thus, it was not in effect at the time of
the agency action or when the initial decision was issued. We find that any evidence of
a change in the fitness standard, 21 months after the appellant’s removal and a year
after issuance of the initial decision, would be immaterial to the outcome of the appeal.
In so finding, we contrast the circumstances of this case to the cases in which an agency
removed an employee for physical inability to perform the duties of his or her position,
but the employee subsequently recovered before the issuance of the initial decision, and
the Board found that it did not promote the efficiency of the service to uphold the
removal action. Morgan v. U.S. Postal Service, 48 M.S.P.R. 607, 613 (1991) (same).
Accordingly, we find that the appellant has not met the criteria for submitting an
additional pleading on review, and we deny the motion. 5 C.F.R. § 1201.114(a)(5), (k).
6
from being able to safely and efficiently perform the core duties of his position.
Id. The Board has indicated that the core duties of a position are synonymous
with the essential functions of a position under the Americans with Disabilities
Act of 1990 (ADA), as amended by the ADA Amendments Act, i.e.,
the fundamental job duties of the position, not including marginal functions.
Id., ¶ 21. One of the bases for finding that a function is essential is that it is the
“reason the position[] exists.” Id.; 29 C.F.R. § 1630.2(n)(2)(i).
In the specification underlying the charge, the agency stated that the
appellant has a medical condition that limits him to running no more than
100 yards at a given time and that his position requires him to be capable of
running more than 100 yards at a given time for law enforcement purposes.
IAF, Tab 6 at 63. We agree with the administrative judge that the agency proved
the appellant’s inability to perform his police officer position as a result of a
medical condition. ID at 8-9.
The appellant informed an agency physician that his condition was
permanent. IAF, Tab 6 at 128; ID at 8. The record reflects that the appellant’s
ability to run was compromised to the extent that two medical providers, in
June 2017 and December 2017, did not clear him for the 1.5 mile run component
of the PAT and deemed it necessary to restrict him to running no more than
100 yards at a time. IAF, Tab 6 at 88-89, Tab 10 at 33-34.
The position description for the police officer position states that the
appellant is, among other things, required to possess “common physical
characteristics and abilities in agility . . . and the strength to pursue, apprehend,
and detain uncooperative suspects.” IAF, Tab 7 at 97. The administrative judge
interpreted the task of pursuing suspects as requiring the ability to run, and
perhaps run a distance greater than, 100 yards. ID at 8-9. The administrative
judge properly found that running to pursue suspects is a core duty, or an
essential function, of the appellant’s position as a police officer and that he was a
danger to himself and any officers with whom he worked in that capacity because
7
his ability to pursue suspects and to support other officers in such pursuits was
severely restricted. Id. We discern no error with this analysis.
In the initial decision, the administrative judge found that the appellant was
not entitled to waiver of the 1.5 mile run portion of the PAT pursuant to 5 C.F.R.
§ 339.204. 5 ID at 9. On review, the appellant appears to challenge this finding,
stating among other things 6 that S.C. made contradictory conclusions on the
Optional Form (OF)-178 (Certificate of Medical Examination) and the Standard
Form 600 (Chronological Record of Medical Care) regarding his ability to
perform the essential duties of his position. PFR File, Tab 1 at 17-18; compare
IAF, Tab 6 at 88-89 (noting the appellant’s OF-178 stated no running more than
100 yards and that he is not medically qualified and not cleared for the PAT),
with IAF, Tab 12 at 5-6 (finding that the appellant meets all requirements for his
position except for inability to run more than 100 yards). He further states that
the agency altered the OF-178 so that S.C. did not have the option to evaluate his
fitness to take the alternate PAT. PFR File, Tab 1 at 18. The Board generally
will not consider arguments raised for the first time in a petition for review absent
a showing that they are based on new and material evidence not previously
available despite the party’s due diligence. Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980). The appellant has not made this showing.
Even if we were to consider his arguments on review, a different result is not
5
An agency must waive a medical standard or physical requirement established under
this part when an employee, unable to meet that standard or requirement, presents
sufficient evidence that the employee, with or without reasonable accommodation, can
perform the essential duties of the position without endangering the health and safety of
the employee or others. 5 C.F.R. § 339.204(a).
6
The appellant also asserts on review that he raised no claim that the agency was
required to waive the 1.5 mile run component of the PAT pursuant to 5 C.F.R.
§ 339.204. PFR File, Tab 1 at 20. Even if the appellant did not raise such a claim, for
the reasons stated herein, the administrative judge’s statement is not prejudicial to his
substantive rights and provides no basis to reverse the initial decision. Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
8
warranted; he is not entitled to a waiver of the PAT under 5 C.F.R. § 339.204
because he cannot perform the essential functions of his position.
On review, the appellant asserts a claim of harmful error because the
administrative judge failed to address his claim that the agency improperly
imposed the 1.5 mile run component of the PAT as a “physical requirement” for
his position. PFR File, Tab 1 at 21 (citing 5 C.F.R. § 339.203). This is the first
time that the appellant is raising a claim of harmful error; below, he withdrew his
retaliation affirmative defense, and he only raised this claim of error as a
challenge to the first charge, IAF, Tab 20 at 12-14. The appellant has not
provided any satisfactory explanation for why this claim should be treated as a
claim of harmful error for the first time on review. Banks, 4 M.S.P.R. at 271.
Nevertheless, we have considered this argument as a claim of error, but we
are not persuaded that a different outcome is warranted. Pursuant to 5 C.F.R.
§ 339.203(a), an agency is authorized to establish physical requirements for a
position, without OPM approval, when such requirements are essential for the
performance of the duties of a specific position. Based on our review of the
position description and other relevant documentation, and for the reasons
described herein and in the initial decision, we discern no error with the agency’s
conclusion that the 1.5 mile run portion of the PAT is a physical requirement of
the police officer position. See, e.g., Thompson v. Department of the Air Force,
104 M.S.P.R. 529, ¶ 9 (2007) (noting that, absent evidence of bad faith or patent
unfairness, the Board defers to the agency’s determination as to the requirements
that must be fulfilled for an individual to qualify for appointment to, or to retain,
a particular position).
For these reasons, we find that the administrative judge properly sustained
the agency’s first charge.
9
We affirm the administrative judge’s finding that the agency proved its charge of
failure to satisfy a condition of employment.
For a charge of failure to satisfy a condition of employment, the agency
must prove: (1) the requirement at issue is a condition of employment, and
(2) the appellant failed to meet that condition. 7 Gallegos v. Department of the
Air Force, 121 M.S.P.R. 349, ¶ 6 (2014). In the specification underlying the
charge, the agency stated that the appellant was required to take and pass an
annual PAT and that he failed to meet that requirement. IAF, Tab 6 at 63. We
agree with the administrative judge that the agency proved this charge. ID at 12.
Importantly, the appellant acknowledged below and on review that passing
the PAT is a condition of employment, and he has a medical impairment that
prevents him from passing the 1.5 mile run component of the PAT. PFR File,
Tab 1 at 20; IAF, Tab 19 at 70, Tab 20 at 16, 24. Moreover, the position
description and Air Force Instruction (AFI) 31-122 clearly state that a police
officer is required to pass the PAT. IAF, Tab 7 at 79-82, 97.
According to AFI 31-122, Section 6.8.5.1, the successful completion of the
1.5 mile run component of the PAT demonstrates cardio-respiratory endurance or
aerobic capacity used in extended control and defensive tactics training.
Id. at 82. The administrative judge explained that such stamina and endurance is
important for tasks that a police officer performs, including running on pursuits,
responding to emergency situations, and defending against intruders. ID at 11-12.
The record also reflects that the appellant lacked the endurance and stamina that
is demonstrated by the 1.5 mile run component of the PAT. For example, on
November 18, 2016, the appellant was unable to successfully complete the mock
PAT, and he “suffered pain and swelling as a result of the 1.5 mile run portion of
the test.” IAF, Tab 7 at 50-51, Tab 19 at 70.
7
In the initial decision, the administrative judge identified a third factor, which stated
that, to the extent that the appellant’s failure to meet the condition was within the
agency’s control, he was afforded a reasonable opportunity to meet the condition.
ID at 7 (internal citations omitted). Even if we considered this third criterion, we would
find that the agency satisfied its burden.
10
The appellant maintains that he can satisfy this condition of employment,
despite his inability to pass the PAT, because the agency offers a JTS Appeals
Test (alternate PAT), which he was “fully capable of taking and passing.”
PFR File, Tab 1 at 19; IAF, Tab 20 at 24. He notes that the alternate PAT had a
running distance of approximately 562 feet (less than 200 yards) and that he was
able to run three-quarters of a mile (3,950 feet). PFR File, Tab 1 at 19; IAF,
Tab 7 at 82-86, Tab 20 at 24. He observes that he made such an assertion in his
declaration under penalty of perjury, but the administrative judge did not
reference or incorporate this assertion in the initial decision. PFR File, Tab 1
at 18-20.
The Board has held that an administrative judge’s failure to mention all of
the evidence of record does not mean that he did not consider it in reaching his
decision. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 15 (2016).
Moreover, in analyzing the appellant’s claim, the administrative judge noted that
the appellant’s private physician cleared him to take the alternate PAT.
ID at 9-10; IAF, Tab 12 at 41. The administrative judge found that the medical
documentation from the appellant’s private physician was not persuasive and did
not adequately explain how the appellant could complete an alternate PAT,
especially given the strenuous nature of the tasks involved, which included but
was not limited to running 562 feet, jumping a 4-foot drainage ditch twice, and
traversing multiple levels of stairs. ID at 10-11. The administrative judge further
determined that the opinions of the agency’s medical providers regarding the
appellant’s physical limitations had more probative value than the appellant’s
private physician’s conclusory assertions 8 because the agency’s medical providers
had more experience with the duty requirements of the appellant’s position, and
the agency’s medical records pertain directly to the appellant’s ability to perform
8
The appellant’s private physician did not express any opinion as to the appellant’s
fitness for duty, his running restriction, or his ability to pass the PAT. IAF, Tab 12
at 41. She merely stated he was “of sufficient medical condition to allow him to safely
complete the alternate physical abilities test.” Id.
11
the essential functions of his position and his ability to pass the 1.5 mile run
portion of the PAT. ID at 11; see, e.g., Brown v. Department of the Interior,
121 M.S.P.R. 205, ¶ 11 (2014) (recognizing that in assessing the probative weight
of medical opinions, the Board considers whether the opinion was based on a
medical examination and provided a reasoned explanation for its findings as
distinct from mere conclusory assertions, the qualifications of the expert
rendering the opinion, and the extent and duration of the expert’s familiarity with
the treatment of the appellant), overruled on other grounds by Haas v.
Department of Homeland Security, 2022 MSPB 36. We discern no basis to
disturb the administrative judge’s determination in this regard.
However, we wish to correct two statements that the administrative judge
made in the initial decision that the appellant raises as error on petition for
review. First, the administrative judge inaccurately stated in the initial decision
that the appellant admitted that he cannot run more than 100 yards at a given
time. PFR File, Tab 1 at 19-20; see ID at 10 (relying on the appellant’s answer to
request for admission 23). This request for admission only asked the appellant to
admit whether 100 yards is equivalent to 300 feet, which the appellant did so
admit. IAF, Tab 19 at 72. Second, the appellant challenges the administrative
judge’s statement that the collective bargaining agreement predates and,
therefore, trumps the Department of Defense Instruction (DoDI) 5525.15.
PFR File, Tab 1 at 15-17; ID at 10. We agree with the appellant that it was
improper for the administrative judge to make this particular finding, 9 and we
correct the administrative judge’s statements in this regard.
Notwithstanding these modifications, DoDI 5525.15 does not support the
appellant’s claim of entitlement to the alternate PAT. Section 5.1(a)(1) of DoDI
5525.15 states that the PAT is a floor for physical fitness programs. IAF, Tab 7
at 31. Section 5.1(a)(2) states that alternate events are permitted for civilian
9
Indeed, the section of the 2016 version of DoDI 5525.15, which discusses physical
fitness and certification standards, is similar to the earlier 2012 version of that
instruction. Compare IAF, Tab 7 at 31, with IAF, Tab 20 at 56-57.
12
police officers with “long-term medical restrictions or disabilities who can
otherwise perform the essential functions of the job, with or without reasonable
accommodation.” Id. Section 5.1(a)(3) of DoDI 5525.15 states that medical
screening and clearance must be completed before testing. Id. Notably, there is
no requirement in either version of DoDI 5525.15 that the agency administer an
alternate PAT for an individual, such as the appellant, who cannot perform the
essential functions of his position. IAF, Tab 7 at 31, Tab 20 at 56. Moreover, the
administrative judge correctly concluded that the appellant was not eligible for an
alternate PAT pursuant to section 5.1(a)(3) of DoDI 5525.15 because the
appellant was not cleared for testing due to his running restriction. ID at 10;
IAF, Tab 6 at 88-89, Tab 7 at 31.
Finally, the appellant asserts on petition for review that the administrative
judge erred 10 in failing to address his arguments that the agency disregarded its
own medical disqualification requirements when: (1) it did not appoint a Medical
Review Officer and an Air Force Security Forces Qualifications Review Board to
conduct a medical standard disqualification recommendation, as required in
AFI 31-122, Section 2.5.4, and (2) it did not provide him an opportunity to submit
medical documentation from his private physician for consideration during the
medical examination process, as required in 5 C.F.R. § 339.303(b). PFR File,
Tab 1 at 12-14; IAF, Tab 20 at 14-15. Any administrative judge’s error in failing
to address these arguments is not prejudicial to the appellant, Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984), because we consider
these arguments on review.
The appellant argues that his submission of documentation from his private
physician that he was cleared to take an alternate PAT constitutes an appeal of the
agency’s medical disqualification determination, and he relies upon “Appendix 8”
of AFI 31-122, Section 2.5.4 to support his contention that a Security Forces
10
Here, too, the appellant frames this claim as one of harmful error. PFR File, Tab 1
at 12. For the reasons stated herein, we only analyze this claim as a claim of
administrative judge error.
13
Qualifications Review Board and Medical Review Officer should have been
appointed. PFR File, Tab 1 at 13-14. It does not appear that “Appendix 8” was
included in the record below, but the agency provides a copy of Attachment 8 on
review. PFR File, Tab 3 at 6, 13-14. We have considered the agency’s
submission of Attachment 8 on review in order to resolve this issue.
Attachment 8 sets forth the process by which a Security Forces Qualifications
Review Board is established and when an employee may request a waiver of a
medical disqualification determination. Id. at 13-14.
We are not persuaded that the appellant’s documentation from his private
physician constitutes an appeal of the agency’s medical disqualification
determination because, among other things, the appellant submitted this
documentation in response to the March 26, 2018 notice of proposed removal, not
in response to S.C.’s December 6, 2017 determination that he was not medically
qualified or the agency’s March 8, 2018 denial of his request for a reasonable
accommodation. IAF, Tab 6 at 56-57, 63-66, 82-85, 89, Tab 12 at 41.
Even if we assumed for the purposes of our analysis that the appellant
properly submitted a waiver, he was not eligible for such a waiver. As stated in
Attachment 8, an agency cannot consider a waiver for an “employee[] who [has] a
permanent or long term medical disqualification unless [he] can provide objective
medical documentation that demonstrates that [he] can perform the essential
functions of the position with or without reasonable accommodation.” PFR File,
Tab 3 at 13 (emphasis added). For the reasons described herein and in the initial
14
decision, the appellant cannot perform the essential functions of his position. 11
ID at 10.
We have also considered the appellant’s argument that he was not afforded
an opportunity to submit his own medical evaluation, as required in 5 C.F.R.
§ 339.303(b). PFR File, Tab 1 at 14. This regulation states, in relevant part, that
when an agency requires a medical examination, the agency “designates the
examining physician,” but it “must offer the . . . employee an opportunity to
submit medical documentation from his . . . private physician or practitioner for
consideration in the medical examination process.” 5 C.F.R. § 339.303(b).
The regulation further states that the agency must review and consider all such
documentation supplied by the private physician or practitioner. Id. The record
reflects that appellant provided to the agency, and the agency considered,
a statement from his private physician prior to removing him from his position.
IAF, Tab 6 at 57, Tab 12 at 41. Thus, we discern no error.
For these reasons, we affirm as modified herein the administrative judge’s
conclusion that the agency proved the second charge.
We affirm the administrative judge’s findings on nexus and penalty.
The appellant does not challenge, and we discern no basis to disturb, the
administrative judge’s findings that the appellant’s removal promotes the
efficiency of the service and that the penalty of removal is within the tolerable
bounds of reasonableness. ID at 12-14; see Brown, 121 M.S.P.R. 205, ¶ 17
(finding that removal for physical inability to perform the essential functions of a
position promotes the efficiency of the service), overruled on other grounds by
11
According to Attachment 8, a Security Forces Qualifications Review Board is only
established to review cases for incumbent officers “who meet the full range of duties
contained within their Position Description (e.g., the PAT), but cannot meet the
established medical standards (e.g., color blind in one eye).” PFR File, Tab 3 at 13.
Additionally, the role of a Medical Review Officer is to “support the board to make
medical standard qualification/disqualification recommendations.” Id. The appellant
cannot meet the full range of duties in his position, and thus, it would be unnecessary to
convene a Security Forces Qualifications Review Board or appoint a Medical Review
Officer.
15
Haas v. Department of Homeland Security, 2022 MSPB 36; Penland v.
Department of the Interior, 115 M.S.P.R. 474, ¶ 11 (2010) (finding that removal
for failure to satisfy a condition of employment promotes the efficiency of the
service and is within the tolerable bounds of reasonableness). Accordingly, we
affirm the agency’s removal action.
NOTICE OF APPEAL RIGHTS 12
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
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
12
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.
16
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
17
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
18
(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. 13 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.
13
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.
19
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.