Opinion

Cory Owens v. Department of Homeland Security

2023 MSPB 7

Court: Merit Systems Protection Board
Filed: Feb 22, 2023
Status: Published
Cited by: 10 cases
Authority: More cited than 77.2%

holding that, when an appellant was removed for medical inability to perform and excessive absences and provided unambiguous evidence of complete recovery prior to the issuance of the initial decision, his removal did not promote the efficiency of the service

How later courts described this case

holding that, when an appellant was removed for medical inability to perform and excessive absences and provided unambiguous evidence of complete recovery prior to the issuance of the initial decision, his removal did not promote the efficiency of the service
observing that the Board has held that, when an appellant recovers from the medical condition that resulted in his removal before the administrative judge has issued an initial decision in his removal appeal, the removal action does not promote the efficiency of the service

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2023 MSPB 7

Docket No. PH-0752-16-0349-I-1

Cory Reginald Owens,

Appellant,

Department of Homeland Security,

Agency.

February 22, 2023

Cory Reginald Owens, Baltimore, Maryland, pro se.

Lorna J. Jerome, Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Leavitt issues a separate dissenting opinion.

OPINION AND ORDER

¶1 This case is before the Board on the agency’s petition for review of the

initial decision that reversed the appellant’s removal for inability to perform the

duties of his position for medical reasons. For the reasons set forth below, we

DENY the petition for review and affirm the initial decision. The appellant’s

removal is NOT SUSTAINED.

BACKGROUND

¶2 The appellant was a WG-10 Electrician with the U.S. Coast Guard Yard in

Glen Burnie, Maryland. Owens v. Department of Homeland Security,

MSPB Docket No. PH-0752-16-0349-I-1, Initial Appeal File (IAF), Tab 1 at 1.

He sustained a work-related injury to his right ankle on March 9, 2015, and the

Department of Labor’s Office of Workers’ Compensation Pro grams (OWCP)

approved his claim for compensation benefits. IAF, Tab 7 at 68 -69, 79-80. As a

result of the injury, the appellant did not return to work. Id. at 59.

¶3 On March 21, 2016, the agency issued a notice proposing to remove the

appellant for inability to perform the duties of his position for medical reasons

and excessive absence with no foreseeable end in sight. Id. at 57-60. After the

appellant provided written and oral responses to the proposed removal,

id. at 43-44, 52, the agency issued a decision letter removing the appellant

effective April 23, 2016, id. at 28, 45-48.

¶4 The appellant filed a Board appeal challenging his removal and he

requested a hearing. IAF, Tab 1 at 2. During a July 21, 2016 status conference,

the appellant clarified that his appeal also included a claim alleging that the

agency failed to return him to duty after he either fully or partially recovered

from a compensable work-related injury. IAF, Tab 14 at 2.

¶5 A hearing was held on December 19, 2016, and the record closed a t the end

of the hearing. IAF, Tab 26 at 3. Later that day, the appellant notified the

administrative judge via facsimile that when he returned home after the hearing,

he received in the mail a notice from OWCP dated December 14, 2016, stating

that it had terminated his wage loss compensation effective December 11, 2016,

based on its determination that he had fully recovered from his work -related

injury. IAF, Tab 25. The appellant asked the administrative judge to consider the

notice as evidence in his appeal. Id.

¶6 The administrative judge granted the appellant’s request and reopened the

record to accept the OWCP notice into evidence. IAF, Tab 26 at 3 -4.

The administrative judge also allowed the agency an opportunity to respond to the

new submission. Id. at 4.

¶7 Following the agency’s response, IAF, Tab 27, the administrative judge

issued an initial decision that reversed the appellant’s removal and ordered the

agency to reinstate the appellant to the Electrician position, finding that the

record shows the appellant fully recovered from his injury while his removal

appeal was pending before the administrative judge. IAF, Tab 28,

Initial Decision (ID) at 2, 10. Accordingly, he ordered the agency to cancel the

removal and to retroactively restore the appellant effective April 23, 2016.

ID at 11. He also ordered the agency to provide interim relief if a petition for

review were filed by either party. ID at 12. Based on his decision to reverse the

appellant’s removal, the administrative judge did not ad dress his restoration

claim. ID at 10 n.3.

¶8 The agency has filed a petition for review. Petition for Review (PFR) File,

Tab 1. Instead of filing a response to the agency’s petition for review with the

full Board, the appellant filed a “Motion of Enforce ment” of the interim relief

order with the Board’s Northeastern Regional Office, which docketed the filing as

a petition for enforcement in Owens v. Department of Homeland Security,

MSPB Docket No. PH-0752-16-0349-C-1. PFR File, Tab 5 at 1-6. The agency

filed a response to the petition for enforcement. Id. at 7-23. The administrative

judge then issued a compliance initial decision that dismissed the petition for

enforcement and forwarded it to the Office of the Clerk of the Board for

consideration with the agency’s petition for review. Id. at 24-32.

ANALYSIS

Interim Relief

¶9 The Board’s regulations do not provide for petitions for enforcement of

interim relief orders; such petitions only apply to final Board decisions.

5 C.F.R. § 1201.182(a). Board regulations do, however, allow an appellant to

challenge an agency’s certification that it has provided interim relief. 5 C.F.R.

§ 1201.116(b). We therefore deny the appellant’s petition for enforcement and

instead consider that pleading as a challenge to the agency’s certification of

compliance. See Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 8 (2015).

¶10 Ordinarily, when an appellant challenges the agency’s certification of

compliance with an interim relief order, the Board will issue an order affording

the agency the opportunity to submit evidence of compliance. Id.; see 5 C.F.R.

§ 1201.116(b). If the agency fails to provide evidence of compliance in response

to such an order, the Board may, at its discretion, dismiss the agency’s petition

for review. Ayers, 123 M.S.P.R. 11, ¶ 8; see 5 C.F.R. § 1201.116(e). In this

case, however, we find that the agency’s petition does not meet the criteria for

review in any event, and the issuance of our final decision renders moot any

dispute concerning the agency’s compliance with the interim relief order.

Ayers, 123 M.S.P.R. 11, ¶ 8 (reaching the same conclusion when the Board

affirmed the administrative judge’s reversal of the appellant’s removal based on

whistleblower reprisal). Under these circumstances, it is unnecessary to issue an

order under 5 C.F.R. § 1201.116(b). If the appellant believes that the agency is in

noncompliance with the Board’s final order, though, he may file a petition for

enforcement in accordance with the instructions provided below.

Ayers, 123 M.S.P.R. 11, ¶ 8.

The Board need not consider the agency’s timeliness argument.

¶11 For the first time on review, the agency argues that the appeal was untimely

because the appellant was removed effective April 23, 2016, but did not file his

appeal with the Board until June 9, 2016. PFR File, Tab 1 at 4. Therefore, the

agency contends, the appellant failed to file his appeal within 30 days of the date

of his removal, as required by 5 C.F.R. § 1201.22(b). Id.

¶12 The Board generally will not consider an argument raised for the first time

in a petition for review absent a showing that it is based on new and material

evidence not previously available despite the party’s due diligence.

Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The agency

has made no such showing.

The administrative judge correctly reversed the removal.

¶13 As for the merits of the appeal, the agency does not challenge, and we

discern no reason to disturb, the administrative judge’s finding that the appellant

fully recovered from his work-related injury while his removal appeal was

pending before the administrative judge. PFR File, Tab 1 at 7; ID at 10.

Instead, the agency argues that the administrative judge erred in finding that the

appellant is entitled to restoration to his previous position as a result of his

recovery. PFR File, Tab 1 at 7.

¶14 In support of this argument, the agency relies on the Office of Personnel

Management regulations governing the restoration rights of employees who

recover from a compensable injury, which are found at 5 C.F.R. part 353,

subpart C. Id. at 5-7. Under 5 C.F.R. § 353.301(a), an employee who fully

recovers from a work-related injury within 1 year from the date eligibility for

compensation began is entitled to restoration to his former position or an

equivalent one. By contrast, an employee who separated due to a compensable

injury and whose full recovery takes longer than 1 year from the date

compensation eligibility began (or from the time compensable disability recurs if

the recurrence begins after the injured employee resumes regular full -time

Government employment), is entitled to agency-wide priority consideration for

his former position or an equivalent one if he applies for reappointment within

30 days after the cessation of compensation. 5 C.F.R. § 353.301(b). The agency

argues that, because the appellant did not fully recover from his work -related

injury within 1 year from the date he became eligible for compensation, he is

entitled to priority consideration only, not restoration to the position from which

he was removed for medical inability to perform. PFR File, Tab 1 at 7.

Therefore, the agency asserts, the initial decision should be reversed inasmuch as

it orders the agency to restore the appellant to his former position effective

April 23, 2016. Id.

¶15 This argument addresses restoration rights, but not the propriety of the

appellant’s removal. Therefore, it is unavailing. It is well settled that the

“efficiency of the service” standard of 5 U.S.C. § 7513(a) is the “ultimate

criterion” for determining both whether any discipline is warranted and whether a

particular penalty may be sustained. Wren v. Department of the Army,

121 M.S.P.R. 28, ¶ 7 (2014); Morgan v. U.S. Postal Service, 48 M.S.P.R. 607,

611 (1991). The Board has held that when an appellant presents unambiguous

evidence of complete recovery from the medical condition that resulted in his

removal before the administrative judge has issued an initial decision in his

removal appeal, the removal action does not promote the efficiency of the service.

See Casillas v. Department of the Air Force, 64 M.S.P.R. 627, 634 (1994);

Morgan, 48 M.S.P.R. at 613 (“Thus, when it is apparent that the appellant’s

inability to perform is temporary in nature and, in fact, that the appellant has

recovered even before the Board can render an initial decision in an appeal, the

Board correctly and properly refuses to hold that the agency’s removal action is

for the efficiency of the service.”). The Board has consistently followed this rule

since it was first established in Street v. Department of the Army, 23 M.S.P.R.

335, 340-43 (1984), nearly 40 years ago. As noted above, it is undisputed that the

appellant fully recovered from his work-related injury before the administrative

judge issued his initial decision in this appeal. Given these circumstances, we

find that the administrative judge correctly reversed the appellant’s removal. ID

at 10.

ORDER

¶16 We ORDER the agency to cancel the removal action and restore the

appellant to his position effective April 23, 2016. See Kerr v. National

Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must

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

¶17 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency ’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶18 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶19 No later than 30 days after the agency tells the appellant that 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 in this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶20 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that pay ment can be

made within the 60-day period set forth above.

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 ( 5 C.F.R.

§ 1201.113).

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 (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 1

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. ____ , 137 S. Ct. 1975 (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. 2 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