The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KELBY S. YOON, DOCKET NUMBER
Appellant, PH-0752-17-0074-I-1
v.
DEPARTMENT OF THE ARMY, DATE: April 12, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kelby S. Yoon, Abingdon, Maryland, pro se.
W. Clay Caldwell, Esquire, Aberdeen Proving Ground, Maryland, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal from the agency and found that he did not meet his burden
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A nonprecedential order is one that the Board has determined does not add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 nonprecedentia l 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 th e Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
of proving the raised affirmative defenses. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative 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.
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, 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 . Except as
expressly MODIFIED regarding the penalty analysis, we AFFIRM the initial
decision.
BACKGROUND
¶2 The appellant worked for the agency as a Chemist, GS-1320-12. Initial
Appeal File (IAF), Tab 5 at 11. This position is classified as emergency-essential
because it supports the agency’s mobilization and wartime mission. Id. at 29. On
December 10, 2012, the appellant signed the required Department of Defense
Civilian Employee Overseas Emergency-Essential Position Agreement (DD
Form 2365), which states in relevant part, “[p]erformance of the duties of this
position during a crisis situation or wartime will require that you relocate (TDY
or PCS) to a duty station in an overseas area.” Id. at 26, 30. Moreover, the
appellant’s position description states, among other requirements, that he must be
able to pass annual deployment and occupational medical examinations; be
responsible for ensuring no medical condition would prevent deployment; and be
capable for emergency worldwide deployment for response to chemical,
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biological, and accidental incidents, 24 hours a day, 365 days per year. Id.
at 30-31.
¶3 On October 5, 2015, the agency conducted a fitness-for-duty examination
on the appellant. Id. at 25. The agency’s medical doctor diagnosed the appellant
with a temporary “chronic medical condition that is not adequately controlled,”
and noted the possibility of an “undiagnosed serious health condition.” Id. The
doctor recommended the appellant undergo additional examination and not have
access to “Chemical Warfare Agents, Biological Select Agents and Toxin, or
classified information.” Id. Based on these recommendations, the agency placed
the appellant on administrative leave, effective November 23, 2015. Id. at 22-24.
¶4 The appellant underwent a second fitness-for-duty examination in April of
2016. Id. at 21. The agency’s medical doctor diagnosed the appellant with a
permanent “significant medical condition,” rendering him permanently unable to
deploy. Id. The doctor also determined that the appellant was not me dically fit
to hold a security clearance and that he “would be at increased risk and would
potentially pose a risk to coworkers if he were to have access to chemical and
biological agents of military interest.” Id. As a result, effective November 12,
2016, the agency removed the appellant due to his medical inability to maintain
the requirements set forth in his DD Form 2365, a condition of employment for
the Chemist position that he held. Id. at 11-15, 26, 30.
¶5 On November 14, 2016, the appellant filed a Board appeal contesting his
removal from the agency. IAF, Tab 1. In his initial appeal, the appellant made
no mention of any affirmative defense. Id. The appellant did not request a
hearing, prompting the administrative judge to issue an order setti ng January 20,
2017, as the close of the record. IAF, Tab 1 at 3, Tab 6 at 1. In this order, the
administrative judge did not identify the issues for adjudication, outline requisite
burdens, or address any other matter. IAF, Tab 6 at 1. On January 9, 2017, the
appellant responded to the close of the record order and alleged that the agency
did not follow the procedures in 5 C.F.R. part 339, Medical Qualification
4
Determinations, during his medical examination process; claimed that the ag ency
violated 29 C.F.R. part 1601, Procedural Regulations; and appeared to allege
some form of disability discrimination. IAF, Tab 7 at 4-5. The agency did not
respond and the administrative judge never issued an affirmative defense order
apprising the appellant of his burdens of proving such defenses.
¶6 On August 10, 2017, the administrative judge issued an initial decision on
the written record, affirming the appellant’s removal, finding that the agency met
its burden of proving the charge, a nexus between the charge and the efficiency of
the service, and the reasonableness of the penalty. IAF, Tab 11, Initial Decision
(ID) at 3-8, 15-16. The administrative judge also found that the appellant raised
the affirmative defenses of harmful procedural error an d disability discrimination;
however, did not meet his burden of prevailing on either. ID at 9 -15.
¶7 The appellant then filed a petition for review, arguing that : (1) the
administrative judge erred because he categorized his alleged disability as
physical and not mental; (2) the agency did not identify his medical condition;
(3) the administrative judge misallocated the burdens of proof; and (4) the agency
did not follow procedures outlined in 5 C.F.R. part 339. Petition for Review
(PFR) File, Tab 1 at 4-5. The agency responded in opposition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge appropriately determined that the agency proved the
charge and a nexus between the charge and the efficiency of the service .
¶8 We agree with the administrative judge’s findings in the initial decision that
the agency proved by preponderant evidence the charge and a nexus between the
charge and the efficiency of the service. ID at 3-8. These findings are well
reasoned and supported by the evidence of record. See Clay v. Department of the
Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the
administrative judge’s findings in the initial decision when she considered the
evidence, drew appropriate inferences, and made reasoned conclusions) .
5
¶9 On review, the appellant argues that the agency failed to identify his
medical condition. PFR File, Tab 1 at 4. The appellant did not raise this issue
during the adjudication of his appeal before the administrative judge. 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). There has been no showing of these
circumstances; thus, we need not consider the appellant’s argument.
¶10 Even if we were to consider the appellant’s argument, the agency explains
in its response to the petition for review that for privacy purposes , it limited the
information regarding the appellant’s medical condition in the relevant
documentation. PFR File, Tab 3 at 5. A review of the record reveals that the
appellant was aware of his medical diagnoses referenced by the agency and the
agency’s concern with him being unable to meet a necessary condition of
employment. The agency listed the dates of the appellant’s medical
examinations, where each took place, the doctor’s name, and provided the
memos. IAF, Tab 5 at 16, 21-22, 25. Moreover, the appellant references a
“psychological interview” in his pleading and in his petition for review, and
states that the agency diagnosed him with a “mental condition.” IAF, Tab 7 at 4 ;
PFR File, Tab 1 at 4. The appellant’s argument is not supported by the evidence
and provides no basis to overturn any portion of the initial decision.
The administrative judge’s penalty analysis in the initial decision must be
modified; however, the appellant’s removal is still proper .
¶11 In the initial decision, the administrative judge analyzed the appellant’s
removal penalty as a disciplinary action. ID at 15-16. The appellant’s removal
from the agency based on medical inability to maintain a requirement of his
position was non-disciplinary in nature and not intended to reflect negatively on
his service to the agency. IAF, Tab 5 at 13. Therefore, the traditional penalty
analysis from Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), does
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not apply. 3 Brown v. Department of the Interior, 121 M.S.P.R. 205, ¶ 18 (2014)
(finding that the Douglas factors did not apply in determining the reasonableness
of the penalty when a removal action was based on a physical inability to
perform), overruled on other grounds by Haas v. Department of Homeland
Security, 2022 MSPB 36.
¶12 The proper standard for determining the penalty in this matter is whether it
exceeded “the tolerable limits of reasonableness,” and such a determination
should be based solely on the medical evidence. Brown, 121 M.S.P.R. 205, ¶ 18.
In this appeal, the appellant’s medical condition is permanent in nature. IAF,
Tab 5 at 21. The medical documentation supporting this is unrebutted, leading to
the conclusion that the appellant’s removal was reasonable. See McPherson v.
U.S. Postal Service, 48 M.S.P.R. 624, 633-34 (1991) (holding that removal was
reasonable for an employee whose physical condition rendered him incapable of
performing the duties of his position).
¶13 Generally, when an employee cannot perform the essential functions of his
position due to a medical condition, the Board will examine whether this is true
with or without a reasonable accommodation and whether the agency has any
vacant funded positions to which it can assign the appellant within his
restrictions. See Brown, 121 M.S.P.R. 205, ¶ 19. There is no indication that the
appellant could have performed the essential functions of the position he
occupied with or without a reasonable accommodation or that the agency ha d a
vacant funded position to which the appellant could have been reassigned. The
appellant has not argued otherwise. Nor has the appellant demonstrated that he
sought a reasonable accommodation or provided the agency with information
concerning his ability to work in another position. Consequently, the agency’s
removal penalty is appropriate.
3
In Douglas, the Board articulated a non-exhaustive list of factors relevant to the
penalty determination in a disciplinary action. Douglas, 5 M.S.P.R. at 305-06.
7
The administrative judge correctly found that the appellant failed to meet his
burden of proving the raised affirmative defenses.
¶14 As an initial matter, the Board requires that during the adjudication of an
appeal, an administrative judge is to apprise an appellant of the applicable
burdens of proving raised affirmative defenses, as well as the kind of evidence
that an appellant is required to produce to meet his burden. Erkins v. U.S. Postal
Service, 108 M.S.P.R. 367, ¶ 8 (2008). When an administrative judge fails to do
so, the Board typically remands the appeal so an appellant can be afforded such
notice and an opportunity to submit evidence and argument under the appropriate
standard. Id. However, an administrative judge’s failure to provide an appellant
with this notice can be cured if the initial decision puts an appellant on notice and
affords the appellant an opportunity to meet his burden for the first time on
review. See Easterling v. U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008).
¶15 In this case, the initial decision describes the appellant’s burden in proving
the affirmative defenses of harmful procedural error and disability discrim ination.
ID at 9-15. Furthermore, the initial decision explains the types of evidence that
the appellant would have had to set forth in order to prevail. Id. In his petition
for review, the appellant does not attempt to argue that he met his burden in
proving either raised affirmative defense. PFR File, Tab 1 at 4-5. As a result, to
the extent that the administrative judge erred by not providing the appellant
notice regarding his burdens on the raised affirmative defenses , it has been cured.
See Milam v. Department of Agriculture, 99 M.S.P.R. 485, ¶ 10 (2005).
¶16 Regarding the merits of the appellant’s affirmative defenses, the
administrative judge correctly determined in the initial decision that the appellant
failed to meet his burden of proving that the agency committed a harmful
procedural error or discriminated against him based on a disability. ID at 9-15.
We discern no reason to disturb these supported and reasoned conclusions. See
Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359
(1987) (holding that the Board will not disturb conclusions made by the
8
administrative judge when supported by evidence and the inferences are
appropriate).
¶17 The appellant claims on review that the administrative judge considered his
alleged disability as physical rather than mental. PFR File, Tab 1 at 4. While the
administrative judge makes references to the appellant’s alleged disability as
physical in the initial decision, this was not dispositive as to the finding that the
appellant failed to meet his burden of proving the agency discriminated against
him based on a disability. ID at 10, 12. The initial decision reflects that the
administrative judge considered the entire record when reaching this conclusion
and applied the appropriate standard. ID at 10-15. When the initial decision was
issued, there was nothing in the record outlining the specifics of the appellant’s
alleged disability. The appellant also fails to provide any details on his disability
status in his petition for review. PFR File, Tab 1.
¶18 On review, the appellant also raises a claim that the agency violated
5 C.F.R. part 339. Id. at 4-5. Specifically, he alleges that the medical
documentation considered by the agency in his removal proceedings is not from a
proper medical professional. Id. It is unclear if this is the same allegation that
the appellant raised before the administrative judge. IAF, Tab 7 at 4.
Notwithstanding, the medical documentation relied on by the agency consists of
findings issued by a medical doctor with a master’s degree in public health. IAF,
Tab 5 at 21, 25. Thus, the medical documentation and the agency physician who
examined the appellant both meet the criteria set forth in 5 C.F.R. § 339.104.
NOTICE OF APPEAL RIGHTS 4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
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.
9
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 an d
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.
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
10
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.
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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
12
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.
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 w ebsite 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.
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.
13
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.