The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARY R. AGNEW, DOCKET NUMBERS
Appellant, PH-0752-04-0423-C-1
PH-0752-04-0425-C-1
v.
UNITED STATES POSTAL SERVICE, DATE: FEBRUARY 6, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
George Goshdigian, Hebron, Connecticut, for the appellant.
Michael Salvon, Esquire, Windsor, Connecticut, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the compliance initial
decision, which granted the appellant’s petition for enforcement. For the reasons
discussed below, we GRANT the agency’s petition for review, VACATE the
compliance initial decision, and DENY the appellant’s petition for enforcement.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
¶2 The appellant filed several appeals in 2004 that were subject to years of
delays due to his imprisonment and medical limitations. See Agnew v. U.S.
Postal Service, MSPB Docket Nos. NY-0353-14-0337-I-1, PH-0752-04-0423-I-9,
PH-0752-04-0598-I-8, PH-0752-04-0425-I-8, Final Order (FO), ¶¶ 2-3 (Dec. 22,
2016). Ultimately, the Board denied the appellant’s restoration claim. FO,
¶¶ 7-9. The Board also sustained his August 27, 2004 removal for two charges:
(1) conviction of 16 felony counts of mail and Federal compensation fraud, all
stemming from his collection of Office of Workers’ Compensation Program
benefits; and (2) falsification of Form CA-1032. FO, ¶¶ 4, 18-29. However, the
Board found that the appellant was improperly subjected to a const ructive
suspension from April 2–June 17, 2004. FO, ¶¶ 10-15. The Board also reversed
the appellant’s indefinite suspension, which was effective from June 18, 2004,
until his August 27, 2004 removal. FO, ¶¶ 16-17. As a result, the Board ordered
the agency to cancel the constructive and indefinite suspensions for the combined
period of April 2–August 26, 2004, and pay the appellant the correct amount of
back pay, interest on back pay, and other appropriate benefits. FO, ¶¶ 33-34.
¶3 After the agency’s deadline for complying with the Board’s order, the
appellant filed a petition for enforcement, alleging that the agency had refused to
provide him with appropriate back pay. Agnew v. U.S. Postal Service, MSPB
Docket Nos. PH-0752-04-0423-C-1, PH-0752-04-0425-C-1, Compliance File
(CF), Tab 1. The appellant acknowledged that he was in a pay status from
May 7–June 16, 2004, but alleged that he was still entitled to back pay for
April 2-May 6, 2004, and June 17–August 26, 2004. CF, Tab 5 at 1. The agency
responded, arguing that the appellant was not entitled to back pay for the period
at issue because he was not ready, willing, and able to work. CF, Tab 4 at 7 -8.
¶4 In a compliance initial decision, the administrative judge granted the
appellant’s petition for enforcement. CF, Tab 6, Compliance Initial Decision
(CID). The agency has filed a petition for review. Agnew v. U.S. Postal Service,
MSPB Docket Nos. PH-0752-04-0423-C-1, PH-0752-04-0425-C-1, Compliance
3
Petition for Review (CPFR) File, Tab 1. The appellant has filed a response, and
the agency has replied. 2 CPFR File, Tabs 3, 7.
¶5 When the Board finds that an employee has been the victim of an
unjustified or unwarranted personnel action, the goal is to place him in the
circumstances he would have been in had the personnel action never taken place.
Kerr v. National Endowment for the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984);
Bartel v. Federal Aviation Administration, 24 M.S.P.R. 560, 564-65 (1984).
Consistent with that goal, the Board’s case law provides that an individual is not
entitled to back pay for any period of time during which he was not ready,
willing, and able to perform his duties because of an incapacitating illness or
injury, or for reasons unrelated to or not caused by the unjustified or unwarranted
personnel action. Lyle v. Department of the Treasury, 85 M.S.P.R. 324, ¶ 6
(2000); Bullock v. Department of the Air Force, 80 M.S.P.R. 361, ¶ 13 (1998);
see Bartel, 24 M.S.P.R. at 565. The agency bears the initial burden of proving
that it has provided an appellant the appropriate back pay amount. See Bullock,
80 M.S.P.R. 361, ¶ 11. When, however, the agency produces concrete and
positive evidence, as opposed to a mere theoretical argument that the appellant
was not ready, willing, and able to work during all or part of the period during
which back pay is claimed, the burden of proof shifts to the appellant to show his
entitlement to back pay. See id.; Hill v. Department of the Air Force,
60 M.S.P.R. 498, 501-02 (1994).
¶6 The administrative judge found that the agency failed to present sufficient
evidence to show that the appellant was incapable of working during the relevant
2
The appellant characterized his pleading as a cross petition for review, rather than as a
response. CPFR File, Tab 3. However, we have construed the pleading as a response.
In large part, the arguments within the pleading challenge the agency’s petition. The
pleading also includes some arguments pertaining to the merits of the agency’s a dverse
actions, but those matters are not relevant to this compliance proceeding. See Nelson v.
Veterans Administration, 27 M.S.P.R. 133, 135 (1985) (recognizing that an employee’s
arguments on the merits of his case would not be considered by the Board on review of
a compliance proceeding).
4
period, from April 2–August 26, 2004. CID at 3-4. In doing so, she recognized
three pieces of evidence, but erroneously concluded that none covered the
pertinent period.
¶7 The first piece of evidence the agency submitted in support of its claim that
the appellant was not ready, willing, and able to work during the claimed back
pay period was a medical record from months earlier. CF, Tab 4 at 9-10. That
record documents a September 2003 physical examination and concludes with the
physician opining that the appellant could work in a sedentary capacity, despite
the appellant’s assertion that he had not worked in more than 2 years and was still
altogether unable to work. Id. The second piece of evidence the agency
submitted was a certification from the Department of Veterans Affairs (DVA),
which the administrative judge mistakenly described. A ccording to that DVA
certification, the appellant “is permanently and totally disabled since March 13,
2003, due to service connected disability or disabilities.” Id. at 11. Although
that certification does, in fact, cover the period at issue in this app eal, the
administrative judge mistakenly described it as covering only the period since
March 2013. Compare CID at 3, with CF, Tab 4 at 11. The third piece of
evidence the agency submitted was a small undated portion of a deposition
transcript describing an inability to perform a limited-duty position as of
May 2002. CF, Tab 4 at 12-13. 3
¶8 Unlike the administrative judge, we find that the agency did produce
concrete and positive evidence, rather than mere theoretical argument, that the
3
On review, the agency has submitted additional portions of the transcript it submitted
below, to provide further context, including the date of the deposition. CPFR File,
Tab 1 at 16. However, the agency has neither alleged that this was already included in
the record, nor has it presented any basis for us to consider this evidence for the first
time on review. Cunningham v. Office of Personnel Management, 110 M.S.P.R. 389,
¶ 11 (2009) (recognizing that the Board generally will not consider arguments raised for
the first time on petition for review of an initial decision in compliance proceedings
absent a showing that the argument is based on new and material evidence that was not
previously available despite due diligence).
5
appellant was not ready, willing, and able to work between April and
August 2004. On the one hand, the deposition transcript provides limited support
because the agency submitted only a small portion of it, with little context. CF,
Tab 4 at 12-13. The agency presented the transcript as if it were the appellant’s
own testimony but failed to provide enough of it to verify the same; the pages
provided do not even include the appellant’s name. Id. at 6-7. On the other hand,
the September 2003 evaluation and the DVA certification are quite persuasive.
Id. at 9-11. As previously mentioned, during the September 2003 evaluation, the
appellant reported that he had not worked for more than 2 years and was still
unable to work because of physical limitations. Id. at 9-10. At a minimum, that
suggests the appellant was not willing to work in the months leading up to the
period at issue, even if an examining physician thought he was able. Id. The
DVA certification provides further support for the agency’s assertion that the
appellant was not ready, willing, and able to work during the claimed back pay
period. Again, that certification provides that the appellant became “permanently
and totally disabled” in March 2003. Id. at 11.
¶9 Because we find that the agency presented sufficient evidence to shift the
burden to the appellant, it was incumbent upon him to show that he was entitled
to back pay, supra ¶ 5, but he failed to do so. With his petition for enforcement,
the appellant submitted a July 2003 letter from the Department of Labor to his
treating physician, requesting information about his physical limitations. CF,
Tab 1 at 22. He also referred to the aforementioned evaluation, during which the
appellant described himself as unable to work, but his physician opined that he
could work in a sedentary capacity. Id. at 5 (referencing CF, Tab 4 at 9-10).
However, the appellant presented no other evidence concerning whether he was
ready, willing, and able to work between April 2–August 26, 2004, even after the
administrative judge offered him an opportunity to rebut the agency’s evidence.
CF, Tab 5 at 2. Accordingly, under these circumstances, we find that the
appellant failed to meet his burden and thus he is not entitled to back pay for the
6
claimed back pay period. See Lyle, 85 M.S.P.R. 324, ¶¶ 6-11 (finding that an
appellant was not entitled to back pay for a period in which the agency presented
evidence that he was not ready, willing, and able to work due to medical
limitations and he failed to rebut that evidence).
¶10 This is the final decision of the Merit Systems Protection Board in this
compliance matter. Title 5 of the Code of Federal Regulations, section 1201.113
(5 C.F.R. § 1201.113).
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
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.
4
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.
7
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 particula r
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. ____ , 137 S. Ct. 1975 (2017). If you have a
8
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 the ir 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
9
(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).
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.
5
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.
10
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.
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.