The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAY STANICH, DOCKET NUMBER
Appellant, SF-0752-14-0425-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: August 14, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jay Stanich, Portland, Oregon, pro se.
Michael R. Tita, Esquire, Seattle, Washington, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of an alleged involuntary retirement for lack of Board
jurisdiction. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the 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. See
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, and based on the
following points and authorities, 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
¶2 The essential facts, as set forth by the administrative judge and not
contested by the parties on review, are as follows: (1) the appellant worked as a
supervisor at the agency’s Lake Grove Station, Lake Oswego, Oregon; (2) in
September 2013, the appellant was notified that he had been assigned to a route
inspection team, which would require him to ride in a jump seat of a U.S. Postal
Service vehicle on a number of routes; (3) the appellant informed the Postmaster
that he could not ride in a jump seat due to a medical condition; (4) the
Postmaster requested that the appellant provide a medical excuse to that effect in
order to excuse him from participation on the route inspection team; and (5) the
appellant did not obtain a medical excuse because he felt it was demeaning given
his position and age, and because he feared his immediate supervisor would then
be required to complete the routes herself. Initial Appeal File (IAF), Tab 11,
Initial Decision (ID) at 3-4. Rather than presenting medical documentation to
excuse his participation on the route inspection team, the appellant began to
3
assemble his retirement application. See IAF, Tab 6 at 10-22. Effective January
3, 2014, the appellant retired from his position with the agency. Id. at 10-11.
¶3 On March 26, 2014, the appellant filed an appeal to the Board alleging
involuntary retirement. IAF, Tab 1. The administrative judge issued an order on
jurisdiction and proof requirements, which, in part, ordered the appellant to file
evidence and argument to prove that the action was within the Board’s
jurisdiction. IAF, Tab 3. The order explained that to be entitled to a hearing the
appellant must make a nonfrivolous allegation that his retirement was involuntary
because: (1) the agency made misleading statements that he relied on to his
detriment; (2) his working conditions were so intolerable that a reasonable person
in his position would have felt compelled to resign or retire; (3) he sought to
withdraw his retirement prior to its effective date and the agency did not have a
valid reason for not allowing its withdrawal; (4) his retirement was the product of
mental incompetence or was secured in violation of the law; or (5) the agency
proposed to remove him based upon reasons the agency knew could not be
substantiated. Id. at 2. In response, the appellant proffered that his retirement
was involuntary because: (1) the postmaster never offered him a reasonable
accommodation; (2) he believed that if he had to use a jump seat again he would
permanently injure himself; and (3) he was suffering from impaired decision
making skills at the time he decided to retire due to medication he was taking.
IAF, Tab 5 at 4. The agency moved to dismiss the appeal for lack of jurisdiction
on the grounds that: (1) the agency effectively provided a reasonable
accommodation; and (2) the appellant’s alleged mental impairment did not meet
the threshold for mental incapacity. IAF, Tab 6 at 4-8.
¶4 After holding a conference call with the parties, the administrative judge
issued an order and summary of conference call, which reiterated that the
appellant would not be entitled to a hearing unless he made a nonfrivolous
allegation that the matter was within the Board’s jurisdiction. IAF, Tab 8 at 1.
Further, the order explicitly set forth the appellant’s burden to establish
4
involuntariness on the basis of mental incapacity or coercion, including how a
failure to provide a reasonable accommodation is relevant to finding coercion.
IAF, Tab 8 at 2-3. The administrative judge held the record open for an
additional 7 days to allow the parties to submit further evidence or argument. Id.
at 3. The appellant timely submitted an additional pleading in which he argued
that: (1) obtaining a medical excuse would have accomplished “little”; and (2) he
did not know how he could prove his mental impairment, but to him it was “quite
evident” because he experienced the transition from “complete ambivalence” back
to “rational thought.” 2 IAF, Tab 9 at 4-5. The agency responded, again arguing
that the appellant had failed to plead a nonfrivolous allegation sufficient to
support Board jurisdiction. IAF, Tab 10 at 4-6. The administrative judge
dismissed the appeal for lack of jurisdiction, finding that the appellant had failed
to make a nonfrivolous allegation that his retirement was involuntary based on
duress, coercion, or mental incapacity. 3 ID at 4-8.
¶5 On June 7, 2014, the appellant, pro se, filed a timely petition for review
arguing, among other things, that he suffered from mental incapacitation at the
time he applied for retirement because he was “ambivalent to everyday events and
personal decisions” as a side effect of his medication. Petition for Review (PFR)
File, Tab 1 at 4. The agency has responded in opposition to the petition for
review. PFR File, Tab 11.
¶6 Absent evidence to the contrary, a retirement is presumed to be a voluntary
act that is beyond the Board’s jurisdiction. Covington v. Department of Health &
Human Services, 750 F.2d 937, 941 (Fed. Cir. 1984); see Mims v. Social Security
Administration, 120 M.S.P.R. 213, ¶ 16 (2013). However, where a retirement is
2
The appellant also argued that: (1) the agency was aware of his back condition as
early as 2010; and (2) the agency was aware or should have been aware that he was
suffering from a mental impairment while he was applying for retirement. IAF, Tab 9
at 4-5.
3
We note that the appellant withdrew his request for a hearing. IAF, Tab 9 at 4.
5
shown to be involuntary, it is an adverse action over which the Board has
jurisdiction, tantamount to a forced removal. Garcia v. Department of Homeland
Security, 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc); Mims, 120 M.S.P.R.
213, ¶ 16. As set forth by the administrative judge, when an appellant claims that
his resignation was involuntary due to mental incapacity, the proper test is
whether, at the time he submitted his resignation, the appellant was capable of
making a rational decision to resign. IAF, Tab 8 at 3; see Savage v. Department
of the Air Force, 30 M.S.P.R. 665, 668 (1986).
¶7 In the initial decision, the administrative judge considered the appellant’s
medical evidence, including the March 31, 2014 doctor’s note and subjective
evidence, including the appellant’s statements and his descriptions of interactions
with the agency manager. ID at 7. The administrative judge noted that, while the
medical doctor opined that the appellant’s decision-making was better and wiser
when he was not taking the medication, the doctor did not state or suggest that the
appellant was incapable of making rational decisions or that he had any mental
defect at the time that the appellant elected to retire. 4 ID at 7; see IAF, Tab 5
at 5. She further explained that the fact that the appellant suffered from pain and
the effects of medication causing him to lose concentration did not mean that he
was unable to rationally consider the consequences of retiring. ID at 7-8. As
such, the administrative judge concluded that the appellant failed to
nonfrivolously allege that he was incapable of making a rational decision to
retire. See ID at 7-8. We agree and discern no reason to disturb the
administrative judge’s determination that the appellant failed to plead a
nonfrivolous allegation that his retirement was involuntary. 5 See Crosby v. U.S.
4
As stated previously, the appellant began the retirement application process three
months before his actual retirement. IAF, Tab 6 at 10-22. Thus, his decision to retire
was seemingly not an impulsive one.
5
In his petition for review, the appellant also asserts that two other supervisors were
accorded preferential treatment because they were purportedly not required to provide a
6
Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge’s findings where the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health & Human Services, 33 M.S.P.R.
357, 359 (1987) (same).
¶8 On June 12, 2014, the appellant filed a motion for leave to supplement his
petition with “very pertinent medical statements” from two doctors. 6 PFR File,
Tab 4 at 3. The agency opposed the appellant’s motion for leave on the ground
that the evidence he sought to introduce was readily available before the record
closed. PFR File, Tab 7 at 4-6. On June 16, 2014, the appellant filed a “Request
for Permission” to file a supplemental pleading drafted by a pro bono attorney, in
addition to the two letters from his doctors. PFR File, Tab 9 at 3. On June 30,
2014, the appellant submitted these supplemental documents as attachments to his
reply to the agency’s opposition to his petition for review. 7 PFR File, Tab 13.
medical note to excuse them from route inspections. PFR File, Tab 1 at 4. Even if true,
such a claim does not support a finding of mental incapacity and does not otherwise
show that the appellant’s retirement was involuntary.
6
The appellant attempted to submit additional pleadings and evidence on June 10, 11,
12 and 14, 2014, but was advised by the Office of the Clerk of the Board that the
Board’s regulations at 5 C.F.R. § 1201.114(a)(5) do not allow for these types of
pleadings. PFR File, Tabs 3, 5, 8, and 10. The Clerk of the Board advised the appellant
that he could submit a motion requesting leave to file an additional pleading explaining
the nature and the need for the pleading and showing that the evidence was not readily
available before the record closed. Id.; 5 C.F.R. § 1201.114(a)(5), (k).
7
The additional documents include a pleading from pro bono attorney William H.
Brawner and the two medical notes written by Drs. Erickson and Harper. PFR File,
Tab 13. Attorney Brawner explains that the appellant did not have the “foggiest
notion” as to what his burden of proof was to establish Board jurisdiction, and urged the
Board to remand the case for a determination as to whether or not the appellant was
medically incapacitated at the time he resigned. Id. at 5-8. Dr. Erickson’s letter noted
that at the time of his resignation, the appellant was suffering from “specific difficulties
with cognition” and was “listless, foggy, lacked initiative, and found it difficult to
concentrate and exert focus on his tasks.” Id. at 9. Dr. Erickson concluded that the
appellant was “unable to exercise appropriate judgment with regard to his decision to
7
Thereafter, the agency moved for leave to file a motion to strike the attachments
to the appellant’s reply, or, in the alternative, to be permitted to file a
“surresponse.” PFR File, Tab 14 at 4-5. In light of our ruling below and the
disposition of the appellant’s petition for review, we deny the agency’s motion.
¶9 The Board generally will not consider evidence submitted for the first time
with the petition for review absent a showing that it was unavailable before the
record was closed despite the party’s due diligence. 5 C.F.R. § 1201.115(d); see
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). To constitute new
evidence, the information contained in the documents, not just the documents
themselves, must have been unavailable despite due diligence when the record
closed. 5 C.F.R. § 1201.115(d); see Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989). Here, the appellant has not shown
that the information contained in the medical notes regarding the appellant’s
mental state from September 2013 to January 2014 was not available or
obtainable prior to the close of the record on May 1, 2014. See ID at 1. Thus, the
Board will not consider the appellant’s medical evidence submitted for the first
time on review. 8 Regarding the brief from attorney William Brawner, we have
considered it as a reply to the agency’s response to the appellant’s petition for
review, but find that it does not establish a basis to disturb the initial decision.
PFR File, Tab 13 at 5-8; see 5 C.F.R. § 1201.114(a)(4).
resign.” Id. Dr. Harper advised that the appellant had been on Lisinopril and
Metoprolol, and that he was experiencing “some memory and cognition issues” at the
end of 2013 and beginning of 2014, likely attributable to the medication. Id. at 10.
8
The appellant’s motion to submit the medical evidence as a supplemental filing is
denied. 5 C.F.R §§ 1201.114(k) and 1201.115(d). Even if we were to consider the
medical evidence, the appellant has not established mental incapacity at the time of his
retirement.
8
ORDER
¶10 Therefore, we DENY the appellant’s petition for review and AFFIRM the
initial decision, which dismissed the alleged involuntary retirement appeal for
lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
9
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.