The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAMUEL MONTALVO, JR., DOCKET NUMBER
Appellant, AT-0752-13-0418-X-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 11, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kevin Curtis Crayon, II, Kennesaw, Georgia, for the appellant.
Daniel E. Ellenbogen, Esquire, Arlington, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 On May 19, 2014, the administrative judge issued an initial decision
recommending that the Board find that the agency materially breached the
settlement agreement entered into by the parties on October 22, 2013, and the
matter was referred to the Board for consideration. MSPB Docket No. AT-0752-
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
13-0418-C-1, Compliance File (CF), Tab 7, Initial Decision (ID). See 5 C.F.R.
§ 1201.183.
¶2 The appellant filed a petition for enforcement alleging that the agency
breached the settlement agreement by denying him retired law enforcement
credentials based on the opinion of a physician who was not qualified to evaluate
the appellant’s mental health status. CF, Tab 1 at 3. The settlement agreement
provides, in pertinent part, that the appellant may request that the agency issue
him retired law enforcement credentials upon his submission of documentation
sufficient to establish his eligibility to receive them, pursuant to 18 U.S.C.
§ 926C(c)(1)–(5). MSPB Docket No. AT-0752-13-0418-I-1, Initial Appeal File
(IAF), Tab 69 at 6.
¶3 The administrative judge found that the agency had not established that the
medical opinion it relied upon in denying the credentials was from a medical
professional with sufficient expertise in the area of mental health. ID at 6. The
opinion in question is from Christopher Holland, M.D., M.P.H. See ID at 6; see
MSPB Docket No. AT-0752-13-0418-X-1, Compliance Referral File (CRF),
Tab 2 at 15. Dr. Holland opined that the appellant’s disability retirement had
been granted in large part due to his serious psychiatric illness, which was
expected to last at least 12 months; therefore, the doctor did not believe that the
appellant should be granted any law enforcement credential or be authorized to
carry a weapon. CRF, Tab 2 at 15. The administrative judge noted that
Dr. Holland had also recommended that the agency obtain the opinion of a
well-credentialed forensic psychologist. See id. Dr. Holland specifically
recommended that the agency obtain the opinion of Neil Hibler, Ph.D. See id.
¶4 The administrative judge found that the agency did not establish that
Dr. Holland was qualified to render an opinion regarding the appellant’s mental
fitness for law enforcement work. ID at 6. Because the agency’s processing of
the appellant’s application was not based on an official finding by a qualified
medical professional, the administrative judge found that the agency had breached
3
its obligation to process the application for retired law enforcement credentials in
good faith. ID at 7. Therefore, the administrative judge ordered the agency to
employ a qualified medical professional to render an official finding as to
whether the appellant was unqualified for reasons relating to mental health. ID
at 8.
¶5 On July 16, 2014, the agency produced evidence that it had obtained a
medical assessment of the appellant’s mental status from Dr. Neil Hibler, Ph.D.,
the forensic psychologist recommended by Dr. Holland. CRF, Tab 2 at 6; see id.
at 18-20. Dr. Hibler has a Ph.D in clinical and community psychology and is
certified by the American Board of Professional Psychology. Id. at 21. He has
over 35 years of experience as a police psychologist, including providing fitness
for duty evaluations. Id.
¶6 Dr. Hibler noted that the law enforcement retirement credentials requested
by the appellant would qualify the appellant to be armed and potentially perform
armed security or law enforcement functions. Id. at 18. Dr. Hibler also noted
that the appellant’s retirement from duty was based on medical evidence that he
had major depressive disorder (severe), post-traumatic stress disorder, and
anxiety, which made him unable to perform his previous duties. Id. Dr. Hibler
opined that any one of these three conditions could potentially place him at risk,
or risk the safety of others relying upon him in the performance of law
enforcement duties. Id. He then considered the appellant’s suitability for arming
under the “whole person” model, noting that the psychological requirements for
arming include the ability to be resilient in the face of stress and to use sound,
reliable judgment under potentially intense pressure. Id. at 19. He found that
each of the appellant’s conditions could potentially undermine the cognitive and
emotional factors essential to the use of deadly force. Id. Consequently,
Dr. Hibler opined that the appellant was not mentally qualified for arming, and,
therefore, ineligible for law enforcement retirement credentials. Id.
4
¶7 On August 5, 2014, the appellant filed a response requesting that the agency
be sanctioned for failing to submit the name and address of the individual
responsible for the agency’s decision. CRF, Tab 3 at 1-2. The appellant also
argued that the agency’s compliance should be viewed with skepticism and that
the agency breached the confidentiality provision of the settlement agreement by
disclosing information regarding the appellant’s removal to Dr. Hibler. Id. at 6.
Finally, the appellant argued that he has no intention of returning to law
enforcement and that he would have to take additional steps to obtain the ability
to carry a firearm, beyond having retired law enforcement credentials. Id. at 7.
¶8 The agency filed a reply on August 6, 2014, arguing that it has complied
with the initial decision by employing a qualified medical professional to render
an official finding as to whether the appellant was mentally qualified for retired
law enforcement credentials. CRF, Tab 5. Second, the agency stated that the
settlement agreement authorized the agency to disclose the agreement as
necessary to comply with its terms and conditions. Id. at 6. The agency stated
that it only provided Dr. Hibler with the information necessary to conduct his
evaluation. Id.
¶9 We find that the agency has established compliance with the administrative
judge’s order directing the agency to employ a qualified medical professional to
render an official finding as to whether the appellant was unqualified for retired
law enforcement credentials for reasons relating to mental health. The agency
obtained an opinion from Dr. Hibler, a Ph.D in clinical and community
psychology with over 35 years of experience in performing fitness for duty
evaluations. Based on Dr. Hibler’s expert opinion, the agency then determined
that the appellant did not meet the mental health qualifications for retired law
enforcement credentials. We also reject the appellant’s contention that the
agency acted improperly in providing information to Dr. Hibler pursuant to his
evaluation of the appellant’s mental health status. We note that the settlement
agreement provides that the fact of the agreement’s existence and its terms may
5
be disclosed as necessary for the parties to carry out the terms and conditions of
the agreement. IAF, Tab 69 at 5.
¶10 We therefore find the agency in compliance and DISMISS the petition for
enforcement. This is the final decision of the Merit Systems Protection Board in
this compliance proceeding. See 5 C.F.R. § 1201.183(c)(1).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
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 out 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
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
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
6
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.
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.