Opinion

Robert Miller v. Federal Deposit Insurance Corporation

Court: Merit Systems Protection Board
Filed: May 16, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBERT M. MILLER, DOCKET NUMBER

Appellant, DC-0752-20-0790-I-1

FEDERAL DEPOSIT INSURANCE DATE: May 16, 2023

CORPORATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Robert M. Miller, Fairfax, Virginia, pro se.

Aaron Wade Norman, Arlington, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which

made the following findings: (1) the appellant is not entitled to corrective action

in the individual right of action (IRA) appeal; and (2) in the indefinite suspension

appeal, the agency properly imposed the indefinite suspension, the indefinite

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 id entified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

suspension should have ended on April 8, 2021, and the appellant did not prove

any of his affirmative defenses. For the reasons discussed below, we GRANT the

agency’s petition for review. We AFFIRM the administrative judge’s finding that

the agency properly imposed the indefinite suspension and the appellant did not

prove any of his affirmative defenses in the indefinite suspension appeal. We

VACATE the administrative judge’s finding that the April 8, 2021 letter satisfied

the condition subsequent and the agency should have ended the indefinite

suspension on April 8, 2021. Instead, we FORWARD the claim involving the

propriety of the continuation of the indefinite suspension to the Washington

Regional Office for docketing as a new appeal and adjudication. We also DENY

the appellant’s motion for interim relief. Except as expressly MODIFIED by this

Final Order, we AFFIRM the initial decision.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 On review, the agency argues that the administrative judge erroneously

concluded that it improperly continued the indefinite suspension after its receipt

of the appellant’s physician’s April 8, 2021 letter. Miller v. Federal Deposit

Insurance Corporation, MSPB Docket No. DC-0752-20-0790-I-1, Initial Appeal

File (IAF), Tab 55 at 5-6, Tab 65, Initial Decision (ID) at 30-32; Petition for

Review (PFR) File, Tab 1 at 5, 11-13. 2 The agency asserts that it was error for

the administrative judge to conclude that the letter was sufficient justification to

return the appellant to work “despite obvious questions about the letter’s accuracy

and reliability” and even though Federal Occupational Health (FOH) medical

experts were still evaluating the adequacy of the medical documentation at the

time of the hearing. PFR File, Tab 1 at 5, 16-18. The agency also asserts that the

letter was produced after the deadline passed for submitting exhibits, and the

letter itself was never introduced or otherwise accepted as an exhibit. Id. at 5,

Because the IRA appeal and indefinite suspension appeal were joined, IAF, Tab 22,

we only cite to the 0790 matter.

11-13. Importantly, the agency argues that it was prejudiced by the

administrative judge’s consideration of the April 8, 2021 letter, particularly after

the administrative judge stated that the agency’s response to the letter was not

relevant during the hearing. Id. at 19. The agency contends that, if the

administrative judge changed her view about the relevance and admissibility of

the letter and the agency’s responses thereto, she should have informed both

parties that she wished to hear this evidence and give n both parties an opportunity

to respond and ensure that the record was fully developed on this issue. Id.

Finally, the agency asserts that it has new evidence, in the form of a May 13,

2021 letter from an FOH Occupational Medicine Consultant, which supports the

need for an independent medical examination. Id. at 19-20, 29.

We vacate the administrative judge’s finding in the indefinite suspension appeal

that the appellant satisfied the condition subsequent and the agency should have

ended the indefinite suspension on April 8, 2021. 3

¶3 The imposition of an indefinite suspension and the failure to terminate that

suspension after the satisfaction of the condition subsequent 4 are “separately

reviewable . . . action[s].” Rhodes v. Merit Systems Protection Board, 487 F.3d

1377, 1381 (Fed Cir. 2007); Jones v. Department of the Army, 111 M.S.P.R. 350,

¶¶ 11-12 (2009). “An inquiry into the propriety of an agency’s imposition of an

indefinite suspension looks only to facts relating to events prior to suspension

that are proffered to support such an imposition. Facts and events that occur after

the suspension has been imposed have no bearing on such an inquiry.” Rhodes,

Neither party challenged the initial decision’s findings regarding the IRA appeal; thus,

only the suspension appeal is pending before the Board on petition for review.

Additionally, neither party challenged the findings from the initial decision that: (1) the

agency properly imposed the indefinite suspension; and (2) the appellant did not prove

any of his affirmative defenses related to the imposition of the indefinite suspension.

We affirm the administrative judge’s findings in this regard.

The parties do not challenge, and we discern no error with, the administrative judge’s

finding that the indefinite suspension had an ascertainable end, i.e., a determination that

the appellant was fit for duty. ID at 29.

487 F.3d at 1380. Conversely, “[a]n inquiry into the propriety of an agency’s

failure to terminate an indefinite suspension . . . look[s] to facts and events that

occur after the suspension was imposed.” Id. Once a condition subsequent has

occurred, “the agency must terminate the suspension withi n a reasonable amount

of time.” Id. at 1380-81. Thus, “[t]he inquiry in such a case therefore looks to

whether an identified condition subsequent has occurred after the suspension was

imposed and whether the agency acted within a reasonable amount of tim e to

terminate the suspension.” Id. at 1381.

¶4 The indefinite suspension appeal before us only involves the imposition of

the indefinite suspension, not the continuation of the indefinite suspension

following the agency’s receipt of the April 8, 2021 lett er. We could not find any

indication in the record that the administrative judge advised the parties that the

continuation of the indefinite suspension was an issue that she intended to

adjudicate in addition to the imposition of the indefinite suspension . In fact, in

the order and summary of telephonic prehearing conference, the administrative

judge stated that “the parties will only be allowed to litigate the issues described

[therein],” and nowhere did she indicate in that order that she would adjudica te

the continuation of the indefinite suspension. IAF, Tab 56 at 1, 6. Moreover, the

administrative judge’s statements during the hearing buttress the conclusion that

the issue of the continuation of the indefinite suspension was not before her. In

pertinent part, the agency attorney asked the administrative judge during the

hearing if she wanted evidence about the agency’s decision after it receives FOH

input. Hearing Transcript (HT) 1 at 248. The administrative judge stated that

such evidence was “not relevant at this point because it’s not an action that’s

occurred.” Id. The administrative judge acknowledged that “it might moot out

the action down the road,” but it “ha[d] no bearing upon the case [that day].” Id.

¶5 Because the imposition of the indefinite suspension is the only issue before

us in the indefinite suspension appeal, we conclude that the administrative judge

erred when she sua sponte considered the April 8, 2021 letter in the initial

decision, 5 decided that the letter satisfied the condition subsequent, and

concluded that the agency should have terminated the indefinite suspension on

this date. We therefore vacate the administrative judge’s findings in this regard.

Because the parties are entitled to notice and an opportunity to pr esent evidence

and argument on the propriety of the agency’s decision to continue the indefinite

suspension, and any related affirmative defenses, we forward this claim to the

Washington Regional Office for docketing as a new appeal and adjudication. 6

We deny the motion for interim relief.

¶6 Because the appellant was the prevailing party below with respect to the

continuation of the indefinite suspension, the initial decision should have

contained a statement on interim relief. 5 C.F.R. § 1201.111(b). Because interim

relief was not explicitly addressed in the initial decision, the appellant became

entitled to interim relief by operation of statute. See 5 U.S.C. § 7701(b)(2)(A);

Stewart v. Department of Transportation, 2023 MSPB 18, ¶ 10. The appellant

raises this issue in a “Motion for Interim Relief,” which he filed after the close of

the record on review. PFR File, Tab 5. However, a “Motion for Interim Relief”

is not contemplated in the Board’s regulations. See Bryant v. Department of the

Army, 2022 MSPB 1, ¶ 6 (“[T]he Board’s regulations do not allow for a petition

for enforcement of an interim relief order.”). Nor did the appellant file a timely

request for dismissal under 5 C.F.R. § 1201.116(d), which states that if an agency

has not provided “required interim relief,” the appellant must file a request for

dismissal of the agency’s petition for review within 25 days of the date of the

The agency correctly notes that the April 8, 2021 letter was not admitted into evidence

during the hearing or at any time before the record closed, the administrative judge

previously advised the parties that she would “not consider any exhibits that [were] not

moved and/or entered into the record at the hearing,” and she never ruled on the

appellant’s motions to supplement his hearing exhibits. HT 1 at 4; HT 2 at 4, 297; IAF,

Tab 55, Tab 56 at 19-20, Tab 62.

We take no position on whether the April 8, 2021 letter satisfied the condition

subsequent or whether the agency improperly continued the indefinite suspension after

its receipt of this letter.

service of the agency’s petition. Furthermore, even if we were to construe this

filing as a challenge to the agency’s certification of compliance under 5 C.F.R.

§ 1201.116(b), we would decline to consider it on the basis that it was untimely

filed. See Harding v. Department of Veterans Affairs, 115 M.S.P.R. 284, ¶ 9

(2010), aff’d, 451 F. App’x 947 (Fed. Cir. 2011). 7 Likewise, to the extent that

this motion could be considered as a cross petition for review, we would decline

to consider it because it would be untimely under 5 C.F.R. § 1201.114(e).

NOTICE OF APPEAL RIGHTS 8

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

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.

We note that pursuant to 5 C.F.R. § 1201.116(g), if the initial decision granted the

appellant interim relief, but the appellant is not the prevailing party in the final Board

order disposing of a petition for review, and the appellant believes that the agency has

not provided full interim relief, the appellant may seek to file an enforcement petition

with the regional office under 5 C.F.R. § 1201.182. Upon our issuance of this final

Board order, the appellant may file a petition for enforcement with the regional office if

he still believes the agency has not provided full interim relief . 5 C.F.R. § 1201.116(g).

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.

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 cas e, 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. 420 (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 secur ity. 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. 9 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