Opinion

Daniel Felten v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Dec 11, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DANIEL K. FELTEN, DOCKET NUMBER

Appellant, DE-844E-20-0195-I-1

OFFICE OF PERSONNEL DATE: December 11, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Benjamin E. Wick , Esquire, and Holly V. Franson , Esquire,

Denver, Colorado, for the appellant.

Linnette L. 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 final decision of the Office of Personnel Management (OPM)

denying his Federal Employees’ Retirement System (FERS) disability retirement

application. For the reasons discussed below, we GRANT the appellant’s petition

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

for review, REVERSE the initial decision and OPM’s final decision, and ORDER

OPM to award a disability retirement annuity to the appellant.

BACKGROUND

The appellant was a GS-13 Accountant for the Department of Veterans

Affairs (DVA), covered under FERS. Initial Appeal File (IAF), Tab 7 at 5. On

August 6, 2016, the appellant was arrested off-duty for possession of controlled

substances, a charge to which he later pled guilty. IAF, Tab 19 at 9-33. It

appears that the DVA was unaware of the matter until sometime later, and the

appellant continued working in his position, earning a summary performance

rating of “fully successful” for fiscal year 2017. IAF, Tab 13 at 5-9.

Subsequently, the DVA learned of the appellant’s arrest and conviction, and it

proposed to remove him based on a charge of conduct unbecoming. Id. at 33-34.

The appellant was removed effective May 18, 2018. 2 IAF, Tab 7 at 5-6.

On or about December 10, 2018, the appellant filed an application for

disability retirement based on conditions of depression, anxiety, attention deficit

hyperactivity disorder, osteoarthritis, 3 and posttraumatic stress disorder. IAF,

Tab 6 at 62-75. On May 23, 2019, OPM issued an initial decision denying the

appellant’s application on the basis that the appellant failed to show that he was

disabled for disability retirement purposes during the time of his employment. Id.

at 54-59. The appellant requested reconsideration, and on March 5, 2020, OPM

issued a final decision affirming its initial decision. Id. at 5-44.

The appellant timely filed the instant Board appeal, challenging OPM’s

determination. IAF, Tab 1 at 4-5. He waived his right to a hearing. Id. at 2.

After the close of the record, the administrative judge issued an initial decision

The appellant appealed his removal to the Board, and the appeal settled. Felten v.

Department of Veterans Affairs, MSPB Docket No. DA-0714-18-0357-I-1, Initial

Appeal File, Tabs 1, 7.

There is no obvious link between the appellant’s osteoarthritis and the substance of his

disability retirement claim, which appears to be based entirely on mental health

conditions.

affirming OPM’s final decision. IAF, Tab 29, Initial Decision (ID) at 1, 10.

Considering the available medical and performance-related evidence, the

administrative judge found that the appellant failed to show that his psychological

conditions prevented him from rendering useful and efficient service prior to his

May 18, 2018 removal. ID at 4-9.

The appellant has filed a petition for review, disputing the administrative

judge’s interpretation of the facts and arguing that his claimed conditions resulted

in performance, conduct, and attendance deficiencies and were incompatible with

useful and efficient service as an Accountant. Petition for Review (PFR) File,

Tab 1 at 14-24. He also argues that accommodation in his position was

unreasonable. Id. at 24-25. OPM has responded to the petition for review, and

the appellant has replied to OPM’s response. PFR File, Tabs 3-4.

ANALYSIS

In an appeal from an OPM decision on a voluntary disability retirement

application, the appellant bears the burden of proof by preponderant evidence.

Thorne v. Office of Personnel Management , 105 M.S.P.R. 171, ¶ 5 (2007);

5 C.F.R. § 1201.56(b)(2)(ii). To be eligible for a disability retirement annuity

under FERS, an employee must show the following: (1) he completed at least

18 months of creditable civilian service; (2) while employed in a position subject

to FERS, he became disabled because of a medical condition, resulting in a

deficiency in performance, conduct, or attendance, or, if there is no such

deficiency, the disabling medical condition is incompatible with either useful and

efficient service or retention in the position; (3) the condition is expected to

continue for at least 1 year from the date that the application for disability

retirement benefits was filed; (4) accommodation of the disabling medical

condition in the position held must be unreasonable; and (5) he did not decline a

reasonable offer of reassignment to a vacant position. 5 U.S.C. § 8451(a);

Thorne, 105 M.S.P.R. 171, ¶ 5; 5 C.F.R. § 844.103(a).

The administrative judge found, and the parties do not dispute on review,

that the appellant met the 18-month service requirement under FERS at the time

he filed his application on December 10, 2018, that his conditions were expected

to continue for 1 year from that date, and that he did not decline a reasonable

offer of reassignment to a vacant position. ID at 4; IAF, Tab 24 at 12-13, 18;

Tab 23 at 6-7; Tab 26 at 5, 8. We decline to disturb those findings. Thus, the

appellant’s entitlement to a disability retirement annuity depends on whether he

had a disabling medical condition and whether accommodating that condition was

unreasonable. Thorne, 105 M.S.P.R. 171, ¶ 5.

There are two ways to meet the statutory requirement that the employee “be

unable, because of disease or injury, to render useful and efficient service in the

employee’s position.” Jackson v. Office of Personnel Management, 118 M.S.P.R.

6, ¶¶ 6-7 (2012) (quoting 5 U.S.C. §§ 8337(a), 8451(a)(1)(B)). First, an appellant

can establish that the medical condition caused a deficiency in performance,

attendance, or conduct by showing that his medical condition affects his ability to

perform specific work requirements, prevents him from being regular in

attendance, or causes him to act inappropriately. Id., ¶¶ 7-8. Alternatively, the

employee can show that his medical condition is incompatible with either useful

and efficient service or retention in the position by showing that it is inconsistent

with working in general, in a particular line of work, or in a particular type of

setting. Id.

The appellant established that his medical conditions caused a deficiency in

performance, attendance, or conduct.

As found by the administrative judge, the appellant’s performance and

attendance deficiencies became unacceptable around October 2017. ID at 7; IAF,

Tab 13 at 9. However, the administrative judge found that the appellant failed to

demonstrate that his claimed conditions caused the deficiencies in his

performance and attendance, or that the conditions were incompatible with useful

and efficient service. ID at 5-10. Given the totality of the evidence, we find that

the appellant has established a causal link between the deficiencies in his

performance and attendance and his claimed conditions.

Although objective medical evidence must be considered, such evidence is

not required to establish disability. Confer v. Office of Personnel Management,

111 M.S.P.R. 419, ¶ 9 (2009) (citing Vanieken-Ryals v. Office of Personnel

Management, 508 F.3d 1034, 1040-42 (Fed. Cir. 2007)). The Board will consider

all pertinent evidence in determining an appellant’s entitlement to disability

retirement, including objective clinical findings, diagnoses and medical opinions,

subjective evidence of pain and disability, and evidence relating to the effect of

the applicant’s conditions on his ability to perform the duties of his position.

Henderson v. Office of Personnel Management, 117 M.S.P.R. 313, ¶ 19 (2012).

Nothing in the law mandates that a single provider tie all of this evidence

together. Id. For example, if the medical provider sets forth clinical findings, a

diagnosis, and a description of how the medical condition affects the appellant’s

activities in general terms, the Board could consider that evidence, together with

the appellant’s subjective account of how the condition has affected his ability to

do his job and his daily life; testimony or statements from supervisors, coworkers,

family members, and friends; and the appellant’s position description to conclude

the appellant’s medical conditions were disabling. Id.

On review, the appellant argues that a May 26, 2020 report from his

Licensed Professional Counselor (LPC), as well the information in his own

declaration, establishes the relationship between his mental health conditions and

his service deficiencies. PFR File, Tab 1 at 12-14, 17-21. In particular, the

appellant’s LPC explained that the appellant “struggled immensely with []his

position in the months leading up to his removal,” including his “inability to

concentrate . . . severe mood swings and suicidal ideation.” IAF, Tab 24 at 26.

The LPC also stated that he developed “serious problems with his sleep, which

only increased the severity of his mental conditions” and that “his supervisor

removed almost all responsibilities from [the appellant] stating that [he] had

become unreliable for many tasks, including being on time to meetings,” which

she found “greatly worsened [the appellant’s] conditions and ability to cope with

life.” Id. She further explained that the appellant’s medical conditions “severely

affected him from functioning in almost every facet of life [and the appellant]

was unable to effectively manage his personal or professional life in any way in

the months leading up to his removal in May 2018.” Id. at 27. She concluded

that the appellant continues to suffer from these conditions and could not perform

the essential functions of his position or “employment of any kind.” Id. at 28.

Although not contemporaneous, we nevertheless find the May 26, 2020

LPC report to be persuasive for several reasons. First, we agree with the

appellant that the LPC’s regular and longstanding counseling relationship with

him, over a period of more than 5 years, adds to the persuasiveness of her

opinion. See Tan-Gatue v. Office of Personnel Management, 90 M.S.P.R. 116,

¶ 11 (2001) (observing that medical conclusions based on a long familiarity with

a patient are of greater weight than those based on a brief association or single

examination), aff’d per curiam, 52 F. App’x 511 (Fed. Cir. 2002). In addition,

the LPC’s report is lengthy and detailed, providing reasoned explanations for her

conclusions. IAF, Tab 24 at 24-28; see Bahm v. Department of the Air Force,

38 M.S.P.R. 627, 632 (1988) (finding that the presence of a reasoned explanation,

as opposed to a mere conclusory assertion, increases the probative value of a

medical opinion).

Furthermore, our reviewing court has held that post-separation evidence of

an appellant’s medical condition may be probative of whether the appellant

became disabled while serving in a covered position “[w]here proximity in time,

lay testimony, or some other evidence provides the requisite link to the relevant

period.” Reilly v. Office of Personnel Management, 571 F.3d 1372, 1380-82

(Fed. Cir. 2009). Here, the appellant also provided his own declaration linking

his worsening mental conditions to the period of time when he was separated.

IAF, Tab 24 at 19-23. For example, the appellant explained that his medical

conditions affected his ability to “concentrate on tasks because of lack of sleep,”

“decreased . . . energy and self-esteem,” and that he was experiencing “intrusive

thoughts about failing” and was “continually . . . distracted by thoughts of

inadequacy and incompetence.” Id. at 19. As a result, in his last year of his

employment, particularly after October 2017, he began to forget meetings, and

would “make mistakes on budget projections, including revenue and expense

forecasts, and leave out necessary details during budget execution that

management required for policy and managerial decision-making,” which in turn

caused his depression to worsen. Id. He also stated that he was even “failing at

simple tasks” such as staying on task, multi-tasking, speaking to people over the

phone, and responding to emails, which resulted in his supervisor removing him

from the IT Contractor Budget project and removing all his duties, leaving him

with “nothing to work on or do.” Id. at 19-20. Finally, he explained that between

October 2017 and his removal, he “regularly” took scheduled and unscheduled

leave for biweekly appointments with his LPC and noted, “[t]here were periods

where [he] called in for 4-5 days at a time because [he] could not get out of bed.”

Id. at 20.

Finally, although the Board has held that an appellant’s application for

disability retirement in the face of an impending removal for misconduct may cast

doubt on the veracity of his application; it is not fatal to eligibility. Henderson v.

Office of Personnel Management, 109 M.S.P.R. 529, ¶¶ 2-3, 9, 21 (2008) (finding

that the appellant established an entitlement to disability retirement despite the

suspicious timing of his application, which he submitted while he was indefinitely

suspended pending the outcome of a criminal charge of marijuana distribution);

see also Anderson v. Office of Personnel Management, 96 M.S.P.R. 299, ¶ 22

(2004) (recognizing that an individual’s failure to apply for disability retirement

until she is removed is a factor discounting the force of the application), aff’d per

curiam, 120 F. App’x 320 (Fed. Cir. 2005). As established above, the appellant’s

service deficiencies became unacceptable around October 2017, which is before

the agency learned about the appellant’s conviction and proposed the appellant’s

removal in March 2018. IAF, Tab 6 at 66, Tab 13 at 33, Tab 24 at 31-34. This

timing, coupled with the appellant’s medical evidence and subjective report

establishing that his medical conditions caused his service deficiencies, outweigh

any doubt that the appellant may have applied for disability retirement benefits

merely in an effort to cast his misconduct and removal in a different light. IAF,

Tab 24 at 19-28; see Henderson, 109 M.S.P.R. 529, ¶ 21 (determining that

although the timing of an appellant’s disability retirement application was

suspect, he presented overwhelming medical evidence that corroborated his

subjective complaints and established that his medical condition was

incompatible with either useful and efficient service or retention in his former

position).

In conclusion, we find that the appellant has established that his mental

health conditions caused deficiencies in his performance and attendance.

Accordingly, we need not consider his remaining arguments that his mental health

conditions caused his off-duty misconduct for which he was ultimately removed

and that they were incompatible with any form of employment. PFR File, Tab 1

at 7-8, 15-18, 20-21.

The appellant established that accommodation of the disabling medical condition

is unreasonable.

Having found that the appellant established that he was disabled from

providing useful and efficient service in his Accountant position, we next

consider his claim that his conditions could not be accommodated. PFR File,

Tab 1 at 24-25. The administrative judge made no findings as to whether

accommodation of the appellant was unreasonable.

When an agency certification that accommodation is unavailable is

unrebutted and the record supports the conclusion that accommodation would not

be possible, the Board has held that this criterion for obtaining disability

retirement is met. Chavez v. Office of Personnel Management, 111 M.S.P.R. 69,

¶ 15 (2009). Here, the DVA indicated that no reasonable accommodation efforts

were made because the appellant was removed. IAF, Tab 6 at 63. However, in

discussing the critical elements of the appellant’s position that he could no longer

successfully perform, the appellant’s supervisor observed that eventually he “was

not able to assign any tasks to [the appellant].” Id. at 66. Moreover, the

appellant and his LPC concluded that the appellant’s medical conditions

prevented him from performing any duties, including the essential functions of

his job. IAF, Tab 24 at 21-22, 28. Based on the DVA’s unrebutted belief that the

appellant could not be provided with a reasonable accommodation to perform his

duties and the evidence of record that the appellant’s medical conditions

prevented him from performing his job duties, we find that the appellant met his

burden to prove that he could not be reasonably accommodated in his position of

record.

Accordingly, we REVERSE the administrative judge’s initial decision and

OPM’s final decision.

ORDER

We ORDER OPM to grant the appellant disability retirement. OPM must

complete this action no later than 20 days after the date of this decision.

We also ORDER OPM to tell the appellant promptly in writing when it

believes it has fully carried out the Board’s Order and to describe the actions it

took to carry out the Board’s Order. We ORDER the appellant to provide all

necessary information OPM requests to help it carry out the Board’s Order. The

appellant, if not notified, should ask OPM about its progress. See 5 C.F.R.

§ 1201.181(b).

No later than 30 days after OPM tells the appellant it has fully carried out

the Board’s Order, the appellant may file a petition for enforcement with the

office that issued the initial decision on this appeal if the appellant believes that

OPM did not fully carry out the Board’s Order. The petition should contain

specific reasons why the appellant believes OPM has not fully carried out the

Board’s Order, and should include the dates and results of any communications

with OPM. See 5 C.F.R. § 1201.182(a).

This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.

§ 1201.113(c)).

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 4

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

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.

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.

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. 5 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).

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.

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