# Russell C Paty v. Office of Personnel Management

> Merit Systems Protection Board · September 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10593671

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** September 27, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

RUSSELL C. PATY, DOCKET NUMBER
Appellant, DA-844E-20-0379-I-1

v.

OFFICE OF PERSONNEL DATE: September 27, 2024
MANAGEMENT,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Russell C. Paty , Canyon Lake, Texas, pro se.

Linnette Scott , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) that denied his application for retirement under Federal Employees’
Retirement System (FERS). Generally, we grant petitions such as this one only in

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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.
On petition for review, the appellant largely disagrees with the
administrative judge’s factual findings, arguing that she discounted the medical
evidence supporting his claim that he is medically unable to perform the duties of
his position. Petition for Review (PFR) File, Tab 1 at 4-9; Tab 4 at 4-5. He also
argues that the administrative judge ignored evidence demonstrating that there
was a deficiency in his attendance. PFR File, Tab 1 at 6. Additionally, the
appellant challenges the administrative judge’s decision denying his request for
12 witnesses to testify at the hearing. Id. at 5-6; see Initial Appeal File (IAF),
Tab 45 at 3.
In the initial decision, the administrative judge thoroughly reviewed and
properly considered both the objective medical evidence from the period
contemporaneous to the appellant’s Federal service through the period following
his resignation and the appellant’s subjective accounts of his conditions in finding
that he failed to establish that he became disabled while employed in a position
subject to FERS. Initial Appeal File, Tab 51, Initial Decision (ID) at 3-13; see
Henderson v. Office of Personnel Management, 117 M.S.P.R. 313, ¶¶ 19-20
(2012) (stating that the Board will consider all relevant objective and subjective
evidence in determining an appellant’s entitlement to disability retirement).
3

Having reviewed the record evidence and considered his arguments on review, we
agree that the appellant failed to establish his entitlement to disability retirement
benefits. 2 PFR File, Tab 3 at 7-14; ID at 4-8; see Henderson v. Office of
Personnel Management, 109 M.S.P.R. 529, ¶ 8 (2008) (setting forth the criteria
that an applicant must meet in order to qualify for disability retirement benefits);
5 C.F.R. § 844.103(a)(2).
Regarding the appellant’s objection to the administrative judge’s denial of
his proposed witnesses, administrative judges have broad discretion to control
proceedings, including excluding witnesses where a party has not been shown that
the proposed testimony would be relevant, material, and nonrepetitious. Vaughn
v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 12 (2013); see 5 C.F.R.
§ 1201.41(b). To obtain reversal of an initial decision on the ground that the
administrative judge abused her discretion in excluding evidence, the petitioning
party must show on review that relevant evidence, which could have affected the
outcome, was disallowed. Jezouit v. Office of Personnel Management,
97 M.S.P.R. 48, ¶ 12 (2004), aff’d, 121 F. App’x 865 (Fed. Cir. 2005).

2
Regarding the appellant’s assertion that the administrative judge failed to
acknowledge the agency’s certification of reassignment and accommodation efforts,
which states that the appellant’s condition could not be accommodated due to its
severity and that reassignment was not possible, this omission does not provide a reason
to disturb the initial decision. PFR File, Tab 1 at 7-8; see IAF, Tab 10 at 78-79.
Whether accommodation is possible and whether the appellant declined a reasonable
offer of reassignment are relevant to elements (4) and (5) of the test for establishing
entitlement to a disability retirement. See Henderson, 109 M.S.P.R. 529, ¶ 8
(identifying the factors that an appellant must meet in order to qualify for disability
retirement benefits under FERS); 5 C.F.R. § 844.103(a); see 5 U.S.C. § 8451(a).
Because a disability retirement applicant must establish that he meets all of the
eligibility requirements, and because the appellant failed to meet his burden of proving
that any of his conditions were disabling (as required under the second element of the
test), the administrative judge determined that she did not reach elements (4) and (5) of
the test, with which we agree. ID at 17 (citing Gribble v. Office of Personnel
Management, 55 M.S.P.R. 274, 277 (1992)). Accordingly, we find no error in the
administrative judge’s failure to specifically address the agency’s reassignment and
accommodation certification in the initial decision.
4

In his challenge to the administrative judge’s order rejecting the
12 requested witnesses, the only witnesses the appellant objected to were his
former first-line supervisor and the agency Personnel Specialist who signed off
on the certification of reassignment and accommodation efforts. IAF, Tab 47
at 4; see IAF, Tab 10 at 78-79. Conversely, a Physician’s Assistant is the only
witness whose potential testimony the appellant addressed in his petition for
review, and the appellant has not explained how her testimony was relevant and
could have affected the outcome of his case. 3 PFR File, Tab 1 at 5.
Consequently, we conclude that the appellant has failed to show that relevant
evidence that could have affected the outcome of this case was disallowed, and
that the administrative judge abused her discretion in disallowing any of the
appellant’s witnesses. 4 Vaughn, 119 M.S.P.R. 605, ¶ 12; Jezouit, 97 M.S.P.R. 48,
¶ 12. 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).

NOTICE OF APPEAL RIGHTS 5
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

3
This is particularly true given that the appellant declined the opportunity to call the
two other physician witnesses the administrative judge had approved to testify at the
hearing. IAF, Tab 50, Hearing Compact Disc (HCD); see ID at 17 n.3.
4
The appellant also challenges the administrative judge’s finding that he withdrew his
request to call two doctors at the hearing, calling the assertion false and misleading.
PFR File, Tab 1 at 5; see ID at 17 n.3. We have reviewed the hearing recording and
find no error in the administrative judge’s characterization of the hearing record as
described in the initial decision. While on the record during the hearing, the
administrative judge noted that before going on the record the appellant indicated that
“he has decided not to call his physicians,” and she asked the appellant “is that
correct []?” HCD. In response, the appellant answered “yes your honor, we have
sufficient documentation to indicate what they’d say here,” and subsequently began his
direct testimony since he was the only other approved witness. HCD.
5
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

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
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.
6

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
7

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. 6 The court of appeals must receive your petition for
6
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
8

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.
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.

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.
9

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10593671. Public record. Not legal advice.