Opinion

Gregory M Grutter v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Jul 25, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GREGORY M. GRUTTER, DOCKET NUMBER

Appellant, PH-844E-20-0012-I-1

OFFICE OF PERSONNEL DATE: July 25, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.

Linnette Scott , Washington, D.C., 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

affirmed the reconsideration decision issued by the Office of Personnel

Management (OPM) finding the appellant’s request for reconsideration untimely

filed. Generally, we grant petitions such as this one only in the following

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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).

BACKGROUND

The appellant was separated from his Federal Air Marshal position with the

Transportation Security Administration in August 2014 because of his medical

inability to perform. Initial Appeal File (IAF), Tab 8 at 6, 44. In September

2015, the appellant applied for disability retirement benefits under the Federal

Employees Retirement System (FERS). Id. at 62. On April 26, 2016, OPM

issued an initial decision dismissing the appellant’s application and informing

him that his application was incomplete and lacked the necessary medical

evidence and supporting documentation. Id. at 28-29. The initial decision

informed the appellant of the process by which he could request reconsideration.

Id. at 28. The appellant responded with the necessary documentation. Id.

at 22-26. On June 26, 2018, OPM rescinded its initial decision, notified the

appellant that his disability retirement application appeared to be untimely filed,

and set forth the requirements for waiver of the time limit. Id. at 19-20.

On October 12, 2018, OPM issued an initial decision dismissing the

appellant’s application as untimely based on a finding that no information had

been received showing that the appellant was mentally incompetent to file a

timely application. Id. at 16-17. OPM’s initial decision informed the appellant

of his right to request reconsideration and of the 30-day deadline in which he

must submit such a request. Id. at 17.

On July 22, 2019, OPM notified the appellant that it did not receive a

request for reconsideration and informed him of the criteria for waiver of the

deadline for an untimely request for reconsideration. Id. at 13. OPM further

notified the appellant that his request for waiver of the time limit must be

submitted within 30 days. Id. The appellant, through counsel, responded to

OPM’s letter. Id. at 6-7. He argued that he did request reconsideration, attached

documents purporting to prove this, and, alternatively, requested waiver of the

30-day deadline based on his severe mental health issues. Id. The documents

attached included an October 1, 2018 letter from the appellant to OPM and a

September 10, 2018 letter from the Director of the Vet Center at the Department

of Veterans Affairs (VA), where the appellant was treated for Post-Traumatic

Stress Disorder (PTSD) and Traumatic Brain Injury (TBI), both of which predated

OPM’s reissued initial decision. Id. at 11-12. OPM subsequently issued a final

decision, finding that the appellant failed to timely request reconsideration or

present sufficient evidence that he was unable to timely request reconsideration

within the time limit. Id. at 4-5.

The appellant subsequently appealed OPM’s final decision to the Board,

arguing that his mental health condition prevented him from timely filing his

disability retirement application. IAF, Tab 1 at 4. The administrative judge held

a hearing at which the appellant testified. IAF, Tab 14, Hearing Compact Disc

(HCD). The administrative judge provided the appellant an opportunity to

subpoena the remaining witnesses and complete the hearing. IAF, Tab 15. At the

request of the appellant, the administrative judge issued a subpoena ordering the

Director of the Vet Center to appear via telephone to testify in the appellant’s

case. IAF, Tab 19.

After the appellant served the Director of the Vet Center, the VA restricted

this individual from testifying and refused to comply with the subpoena. IAF,

Tab 23 at 12-13. The appellant filed a motion to enforce the subpoena. Id.

at 4-8. The administrative judge denied the appellant’s motion to enforce the

subpoena, finding that the witness was only a licensed clinical worker rather than

a psychiatrist, and thus could not meaningfully testify about the proffered issues,

including providing expert testimony regarding the appellant’s PTSD diagnosis

and whether he was mentally incompetent during the relevant filing period. IAF,

Tab 23 at 20-21, Tab 24 at 1. The administrative judge further found that the

witness already provided a letter describing the appellant’s condition, which

appeared to provide all the information she could realistically testify to on the

witness stand. IAF, Tab 24 at 1. The administrative judge further noted that the

appellant had already provided testimony about his condition, and specifically

about how his mental health conditions allegedly prevented him from timely

filing a request for reconsideration. Id.

The administrative judge subsequently issued an initial decision affirming

OPM’s reconsideration decision and finding the appellant not entitled to a waiver

of the deadline to request reconsideration. IAF, Tab 27, Initial Decision (ID)

at 1. He found that the appellant received a timely notice of his right to seek

reconsideration from the October 12, 2018 initial decision. ID at 4-5. He further

found that the appellant’s mental condition was insufficient to justify the 9-month

delay in requesting reconsideration. ID at 5. In so holding, the administrative

judge noted that the appellant had “adjusted” to his mental condition by

automatically sending OPM documents to his counsel. ID at 5-6. Because he

found that the appellant failed to demonstrate entitlement to a waiver of the time

limit, the administrative judge found that he could not consider the merits of the

appellant’s original disability retirement application or whether his original

application was timely. ID at 6.

The appellant has filed a timely petition for review. Petition for Review

(PFR) File, Tab 1. He asserts that the administrative judge failed to take into

account his mental disabilities and argues that he is eligible for an extension of

the time limit. Id. at 5-8. He further argues that the administrative judge erred in

denying his motion to enforce the subpoena of the Director of the Vet Center. Id.

at 5, 9-10. He argues that OPM acted unreasonably and abused its discretion in

refusing to extend the time limit and dismissing his request for reconsideration as

untimely. Id. at 8-10. Finally, he asserts that his original disability application

was timely filed and argues the merits of his disability application. Id. at 9-10.

The agency has not responded to his petition for review.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge’s refusal to seek enforcement of the subpoena did not

affect the outcome of this appeal.

The appellant argues that the administrative judge erred in denying his

motion to enforce the subpoena against the Director of the Vet Center. Id.

at 9-10. The administrative judge denied the appellant’s motion, finding that the

Director’s letter, which was in the record, provided all the information she could

realistically provide on the witness stand. IAF, Tab 24 at 1.

If a person who has been served with a Board subpoena fails or refuses to

comply with its terms, the party seeking compliance may file a written motion for

enforcement. 5 C.F.R. § 1201.85(a). The Board, in accordance with 5 U.S.C.

§ 1204(c), may then ask the appropriate United States district court to enforce the

subpoena. Id. The administrative judge has wide discretion to control the

proceedings before him, including the authority to exclude testimony he believes

would be irrelevant, immaterial, or repetitious. Brownscombe v. Office of

Personnel Management, 37 M.S.P.R. 382, 386 (1988), aff’d, 871 F.2d 1097 (Fed.

Cir. 1989) (Table). The Board will not reverse an administrative judge’s rulings

on discovery matters absent an abuse of discretion. Wagner v. Environmental

Protection Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir.

1993) (Table). Regardless of whether the administrative judge abused his

discretion in declining to seek enforcement of the subpoena in district court, we

find that any such error was harmless.

An adjudicatory error that is not prejudicial to a party’s substantive rights

provides no basis for reversal of an initial decision. Panter v. Department of the

Air Force, 22 M.S.P.R. 281, 282 (1984). The appellant here did not establish that

the testimony of the Director would add anything to the information in the record.

See Brownscombe, 37 M.S.P.R. at 386. Rather, the appellant merely repeats the

information contained in the Director’s statement in the record, explaining

various effects of his mental condition. PFR File, Tab 1 at 7; IAF, Tab 8 at 12.

As set forth below, the information in the record is insufficient to establish that

his medical conditions prevented him from timely requesting reconsideration.

Indeed, the administrative judge considered the appellant’s medical conditions,

but nonetheless found them insufficient to justify the 9-month delay in requesting

reconsideration. ID at 5-6. Moreover, given that the Director was a Licensed

Clinical Social Worker, not a psychiatrist, it does not appear that she diagnosed

the appellant with PTSD or TBI; rather, her letter merely stated that she provided

treatment to the appellant for those conditions and generally explained some of

the potential impacts of PTSD and TBI. IAF, Tab 8 at 12, Tab 23 at 20-21. Thus,

the appellant did not show how this witness’s absence impaired the proceedings

or his rights. Brownscombe, 37 M.S.P.R. at 386; see also Panter, 22 M.S.P.R.

at 282 (finding an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision).

The administrative judge correctly held that the appellant’s request for

reconsideration was untimely.

The appellant, in requesting reconsideration to OPM, argued that he timely

requested reconsideration of the initial decision. IAF, Tab 8 at 6-7. The

administrative judge held that the appellant’s documents, which predated OPM’s

initial decision, were in response to OPM’s June 26, 2018 letter, and not in

response to the initial decision. ID at 6. Under FERS, a request for

reconsideration must be received by OPM within 30 calendar days from the date

of the initial decision. 5 C.F.R. § 841.306(d)(1). The appellant does not

challenge this finding on review, and we see no reason to disturb it. Indeed, the

letters purportedly requesting reconsideration, dated October 1 and September 10,

2018, predated OPM’s October 12, 2018 initial decision. IAF, Tab 8 at 14-17.

The administrative judge correctly held that the appellant failed to show that he is

eligible for a waiver of the 30-day time limit.

The administrative judge found that the appellant was timely notified of his

right to seek reconsideration and of the 30-day time limit. ID at 4-5. The parties

do not challenge this finding on review, and we decline to disturb it. The

appellant on review argues that his medical conditions rendered him unable to

comply with the time limit, and thus he was prevented by circumstances beyond

his control from timely requesting reconsideration. PFR File, Tab 1 at 6. The

administrative judge found that the appellant’s medical condition was insufficient

to demonstrate that he was prevented by circumstances beyond his control from

timely requesting reconsideration. ID at 5-6. We agree.

Under FERS, OPM’s regulations provide that OPM may extend the time

limit for requesting reconsideration when the individual shows either that: (1) he

was not notified of the time limit and was not otherwise aware of it; or (2) he was

prevented by circumstances beyond his control from making the request within

the time limit. Kent v. Office of Personnel Management, 123 M.S.P.R. 103, ¶ 8

(2015); 5 C.F.R. § 841.306(d)(2). If an appellant shows that he qualified for an

extension of the time limit under OPM’s regulations, the Board then will consider

whether OPM acted unreasonably or abused its discretion in refusing to extend

the time limit and dismissing his request for reconsideration as untimely filed.

Kent, 123 M.S.P.R. 103, ¶ 8. If, however, the appellant does not first show that

he qualified for an extension under OPM’s regulatory criteria, the Board will not

reach the issue of whether OPM was unreasonable or abused its discretion in

denying his untimely request for reconsideration. Id. The good cause standard

the Board would apply to cases untimely filed with the Board is a more lenient

standard than the narrower factual criteria under 5 C.F.R. § 841.306(d)(2). Id.

The administrative judge here considered the appellant’s medical

conditions, including the statement provided by the Director of the Vet Center,

but found that they failed to demonstrate circumstances beyond his control or

justify the 9-month delay. ID at 5-6. The Board has held that medical problems

which merely interfere with an appellant’s ability to timely request

reconsideration fall short of a showing that an appellant was “prevented” from

doing so. See Meister v. Office of Personnel Management , 52 M.S.P.R. 508,

515-16 (1992) (finding the appellant’s bronchitis and back problems, which

rendered her “unable to take a more active part” in requesting reconsideration,

was insufficient to prove she was medically prevented from requesting

reconsideration). By contrast, the Board has found that an appellant who suffered

from fibromyalgia, migraines, and was bedridden for days and weeks at a time

demonstrated that she was prevented by circumstances beyond her control from

timely requesting reconsideration. Williams v. Office of Personnel Management,

100 M.S.P.R. 190, ¶¶ 4, 8-10 (2005). The appellant in Williams additionally

made several attempts to call OPM and seek an extension of the filing period due

to her incapacitating medical conditions, and her request for reconsideration was

filed just one day after the 30-day deadline. Id., ¶¶ 4, 9.

The appellant here presented evidence that he suffered from PTSD and

TBI, which “can result in distraction in concentration, forgetfulness, and memory

loss.” IAF, Tab 8 at 15. As stated in the letter from the Director of the Vet

Center, his condition “can often result in missed appointments and deadlines

along with forgetting daily responsibilities.” Id. Additionally, the appellant

testified that he had difficulty completing tasks and staying focused. HCD

at 13:22 (testimony of the appellant). He further testified that he had difficulty

remembering things, including appointments. HCD at 16:15 (testimony of the

appellant). Specifically regarding his correspondence with OPM, the appellant

testified that it was overwhelming, he could not understand the verbiage, and he

began forwarding all OPM correspondence to his counsel. HCD at 17:55

(testimony of the appellant).

We find that the appellant has failed to meet his burden of proving that he

was prevented by circumstances beyond his control from requesting

reconsideration during the time limit. There is no evidence that the appellant

contacted OPM prior to the filing deadline, and his 9-month delay in filing is

significantly longer than the 1-day delay in Williams. Moreover, the record

reflects that the appellant was able to request reconsideration of OPM’s first

initial decision, despite his medical conditions. IAF, Tab 8 at 25-33. Given that

his system of forwarding OPM correspondence to his counsel allowed him to

request reconsideration of a different initial decision, and to generally correspond

and cooperate with OPM throughout the process, we find that his medical

conditions merely interfered with his ability to file a request for reconsideration,

as opposed to preventing him from doing so. See Meister, 52 M.S.P.R. at 515-16.

To the extent the appellant argues that OPM’s July 22, 2019 letter was a

waiver of the time limit, we are unpersuaded. PFR File, Tab 1 at 4-5. Therein,

OPM merely informed the appellant that it had not received a request for

reconsideration, and provided him an opportunity to meet his burden of proving

entitlement to a waiver of the deadline. IAF, Tab 8 at 13. This letter in no way

suggested that it was extending his deadline to file a request for reconsideration

but rather provided a 30-day deadline to request a waiver of the original time

limit. Id.

The appellant additionally argues that OPM acted unreasonably or abused

its discretion in refusing to extend the time limit. PFR File, Tab 1 at 8-9. He

also argues the merits of his original disability retirement application and asserts

that his original application was timely filed. Id. The administrative judge held

that, because the appellant failed to show that he was entitled to a waiver of the

time limit, the Board cannot consider such claims. ID at 6. We agree. See Kent,

123 M.S.P.R. 103, ¶ 8 (finding that if an appellant does not first show that he

qualified for an extension of the time limit, the Board will not reach the issue of

whether OPM was unreasonable or abused its discretion in denying his untimely

request for reconsideration).

Accordingly, we deny the appellant’s petition for review and affirm the

initial decision.

NOTICE OF APPEAL RIGHTS 2

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.

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.

(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.

(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

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

(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. 3 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

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.