TSCHANTZ, ROBERT V. OFFICE OF PERSONNEL MANAGEMENT No. CH-844E-22-0058-I-1 UNITED STATES OF AMERICA, MERIT SYSTEMS PROTECTION BOARD, CENTRAL REGIONAL OFFICE July 08, 2022 Counsel Robert Tschantz, Juneau, Alaska, pro se. James W. Mercier, Washington, D.C., for the agency. Fine, Daniel R., Administrative Judge INITIAL DECISION The appellant, Robert Tschantz, filed this appeal to challenge a final reconsideration decision of the Office of Personnel Management (“OPM”), dated September 20, 2021. See Initial Appeal File (“IAF”), Tab 1. In that reconsideration decision, OPM found that the appellant failed to establish that he was entitled to disability retirement benefits under the Federal Employees' Retirement System (“FERS”). Id. The Board has jurisdiction under 5 U.S.C. § 8461(e) and 5 C.F.R. § 841.308. The appellant initially requested a hearing but later withdrew that request and elected to have this matter resolved on the written record. For the reasons set forth below, OPM's final reconsideration decision is AFFIRMED. I. Background The appellant formerly worked as a Lead Forecaster with the National Weather Service, National Oceanic and Atmospheric Administration. See IAF, Tab 5 at 104. He was removed from that position, and from federal service, in April 2020 for conduct unbecoming a federal employee. Id. at 101. After the appellant was removed, he timely filed an application with OPM for disability retirement benefits under FERS. The application was received by OPM on June 2, 2020. Id. at 77. The appellant's Statement of Disability identified the following conditions: Major Depressive Disorder, recurrent (F33.2); Generalized Anxiety Disorder (F41.1); Obstructive Sleep Apnea (G47.33);[1] Hypertension; “DVT;” and Asthma. IAF, Tab 6 at 28. The appellant states that he became disabled in January 2020. Id. Asked to describe how his diseases or injuries interfered with the performance of his duties, attendance, or conduct, the appellant wrote on his disability retirement application that he experienced— [c]onstant inability to concentrate because of anxious thoughts [which] add to the stress I experience from performing my job duties. I am still having trouble sleeping. I have racing thoughts and experience mood fluctuations. Because I am unable to sleep I am exhausted for the rest of the day and have difficulty concentrating. I am required to interact with others and make quick and accurate judgment calls and this is difficult when I mentally shut down. My ability to make decisions that are essential to this position is compromised due to my lack of sleep, inability to concentrate[,] and anxiety. Over time, my required job duties have added greatly to my stress and the worsening of my conditions. Id. OPM denied the appellant's application for disability retirement benefits and affirmed that denial in a final reconsideration decision, dated September 20, 2021. IAF, Tab 5 at 7. The appellant then filed this appeal on November 8, 2021, to challenge OPM's final reconsideration decision. IAF, Tab 1.[2] The appellant initially requested a hearing in connection with his appeal; he withdrew that request, however, during a January 2022 telephonic status conference. IAF, Tab 12. I then issued a Close of Record Order that provided the parties until February 16, 2022, to file evidence and argument with the Board. IAF, Tab 13. OPM timely filed a close-of-record submission and supporting exhibits. IAF, Tabs 15 and 16. The appellant did not file a close-of-record submission, timely or otherwise.[3] Instead, the appellant only objected to exhibits supporting OPM's close-of-record submission, asking the Board to strike the agency's exhibits. See IAF, Tab 17 at 9-10. The appellant's lawyers withdrew from the case shortly after filing the motion to strike (IAF, Tab 21)—a motion that, as explained below in Part III.A, lacks merit. II. Legal Standards Applicants for disability retirement benefits must establish that: (1) they filed their application within one year after separating from their employing agency; (2) they completed at least 18 months of creditable civilian service; (3) while employed in a position subject to FERS, they became disabled because of a medical condition, resulting in a deficiency in performance, conduct or attendance, or, if there is no such deficiency, the disabling medical condition is incompatible with either useful and efficient service or retention in the position; (4) the disabling medical condition is expected to continue for at least 1 year from the date the application for disability retirement benefits was filed; (5) accommodating the disabling medical condition in the position held would be unreasonable; and (6) they did not decline a reasonable offer of reassignment to a vacant position. 5 U.S.C. § 8451(a); 5 C.F.R. §§ 844.103(a), 844.201(a)(1); Simpkins v. Office of Personnel Management, 113 M.S.P.R. 411, ; 6 (2010). Applicants have the burden of proving that they are entitled to disability retirement benefits. Thieman v. Office of Personnel Management, 78 M.S.P.R. 113, 115 (1998). They must do so by preponderant evidence, id., which means enough evidence for a reasonable person to conclude that a contested fact is more likely to be true than untrue, see 5 C.F.R. § 1201.4(q). In analyzing whether the appellant has met his burden, I consider the probative value of all the evidence, taking into account: (1) objective clinical findings; (2) diagnoses and medical opinions; (3) subjective evidence of pain and disability; (4) evidence relating to the effect of the applicant's condition upon his or her ability to perform in the grade or class of position last occupied; and (5) evidence that he or she was not qualified for reassignment to a vacant position at the same grade or level as the position he or she last occupied. See Nash v. Office of Personnel Management, 92 M.S.P.R. 527, 529-30 (2002). III. Findings and Analysis The appellant's motion to strike OPM's exhibits lacks merit and is DENIED. In addition, the evidence shows (and I find) that the appellant did not prove that he is entitled to disability retirement benefits under FERS. A. The Appellant's Motion to Strike Is Denied. In his motion to strike, the appellant recounts that, in response to “almost every one” of his requests for production of documents, OPM had responded, “Please see agency file.” IAF, Tab 17 at 5. Those responses were served by OPM on December 14, 2021. IAF, Tab 18 at 9-12. The appellant argues that, notwithstanding OPM's responses, OPM filed exhibits with its close-of-record submission that were “directly responsive” to the appellant's discovery requests but “were not produced until [OPM] filed its Close of Record Submissions,” which was on February 13, 2022. IAF, Tab 17 at 5-6. According to the appellant, OPM's exhibits run afoul of Federal Rule of Civil Procedure 26. The federal procedural rules provide non-binding guidance to the Board, and Rule 26 provides that a party must supplement or correct its discovery responses in a timely manner if the party learns that any of its responses are incomplete and “the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” IAF, Tab 17 at 5 (citing Fed. R. Civ. P. 26(e)(1)). The appellant contends that the exhibits OPM appended to its close-of-record submission were not provided to him. Further, the appellant urges that one of OPM's exhibits, a declaration from an expert, should be struck for the additional reason that it flunks the test for admissibility of expert opinions that is set out in Federal Rule of Evidence 702. IAF, Tab 17 at 8-9. I find that the appellant's arguments lack merit. Four of OPM's eight exhibits (1, 2, 3, and 4) are affidavits, and all of them were obtained in the short interval between the Board's Close of Record Order and OPM's close-of-record submission. The affidavits are from, respectively: the appellant's former first-line supervisor, Noelle Runyan (IAF, Tab 16 at 5- 6); OPM employee Kristin Botzer (id. at 8-13); OPM employee Katie Geiwitz (id. at 14-19); and a human resources specialist named David Lee who helped Noelle Runyan prepare the Notice of Proposed Removal that preceded the appellant's removal from federal service (id. at 20-21). The affidavit from Runyan (Ex. 1) recounts at a high level her perceptions of facts surrounding the appellant's work and removal; the latter subject is discussed in far greater detail in the Notice of Proposed Removal that is part of the agency file. Compare IAF, Tab 16 at 5-6, with IAF, Tab 5 at 104-09. The affidavit from Lee (Ex. 4) merely authenticates the Notice of Proposed Removal and confirms that the appellant's employment was terminated on the grounds set forth in that document. See IAF, Tab 16 at 20. Similarly, the affidavits from OPM employees Botzer and Geiwitz (Exs. 2 and 3) merely authenticate OPM's initial decision and final reconsideration decision. See id. at 7, 14. The appellant does not argue that any of the information contained in these affidavits was unknown to him; he also does not explain how he has been in any way prejudiced by OPM offering these affidavits. Further, the appellant does not argue that it would have been inappropriate to call any of the affiants as witnesses in this appeal. Yet it became impossible for OPM to call these affiants once the appellant withdrew his request for a hearing in early January 2022. The Board then issued a Close of Record Order on January 14, 2022; OPM obtained the affidavits between January 19 and January 26, 2022; and OPM filed its close-of-record submission less than three weeks after the last affidavit was obtained. As noted previously, the Federal Rules of Civil Procedure provide nonbinding guidance to the Board. The guiding principle of discovery obligations under the Federal Rules of Civil Procedure is reasonableness. E.g., Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 426 (D. N.J. 2009) (“Reasonableness is the touchstone principle, as it is with most discovery obligations.”). And it is beyond reasonable debate that OPM acted reasonably in proceeding in the manner that it did with respect to the affidavit exhibits. After all, the appellant's decision to withdraw his hearing request prevented OPM from calling witnesses, and the Board's Close of Record Order explicitly advised the parties that I was “likely to give more weight to sworn statements (or statements made under penalty of perjury) than to statements that are unsworn and not made under penalty of perjury).” IAF, Tab 13 at 2. The appellant's argument that I should prevent OPM from relying on the affidavits thus founders against my directive to the parties in the Close of Record Order and would be patently unfair. The remaining exhibits are documents, two of which are already in the agency file and two of which were turned over to the appellant promptly. Exhibit 5 (IAF, Tab 16 at 22) is a copy of a letter, dated March 2, 2020, that was drafted by Dr. Nathanial Haddock, the appellant's longtime physician. As OPM correctly notes, Exhibit 5 appears in the agency file. IAF, Tab 6 at 33. Indeed, the footer of Exhibit 5 should have shown the appellant (or his lawyers, as he was represented when the motion to strike was filed) that the document had already been filed in this appeal. Exhibits 6 and 7 comprise a document entitled “Medical Review Analysis Report,” by Dr. David G. Folks, M.D., dated February 2, 2022, as well as the cover letter enclosing that report, which is also dated February 2, 2022. See IAF, Tab 16 at 23-27. Given that OPM filed these exhibits with the Board just 11 days after the dates that appear on the face of the documents, OPM seasonably supplemented its response to discovery by including them with its close-of-record submission. Cf. also 1993 Advisory Committee Note to Fed. R. Civ. P. 26(e) (“Supplementations need not be made as each new item of information is learned but should be made at appropriate intervals”).[4] Finally, Exhibit 8 is a copy of the “Applicant's Statement of Disability” that the appellant completed in order to apply for disability retirement benefits under FERS. IAF, Tab 16 at 28-29. This document, too, appears in the agency file. See IAF, Tab 6 at 28-29. Given that the appellant bears the burden of establishing his entitlement to disability retirement benefits and the appellant is the one who filled out the application, there is no reasonable basis to move for the document to be excluded. Merely to describe the facts surrounding OPM's exhibits and the appellant's motion is to demonstrate that the appellant's motion lacks merit. It also bears noting that, under the Federal Rules of Civil Procedure, a party has a duty to seasonably supplement discovery only with information that has not been learned by that party's adversary. Fed. R. Civ. P. 26(e)(1)(A). Even when new information is provided, sanctions may not be imposed where an omission in handing over document was harmless. Fed. R. Civ. P. 37(c)(1). The appellant has not shown that OPM did not seasonably supplement its responses and has not shown that sanctions would be appropriate even were the facts otherwise. For these reasons, the appellant's motion to strike OPM's exhibits is DENIED. B. The Appellant Is Not Entitled to Disability Retirement Benefits. OPM's final reconsideration decision concluded that the appellant did not show that his conditions were disabling under FERS, did not show that his disabling condition was expected to last for at least 1 year from the date the application for disability retirement benefits was filed, and did not show that accommodating the disabling medical condition in the position held would be unreasonable. See IAF, Tab 5 at 10. I agree with each of these conclusions, any one of which would require affirmance of OPM's final reconsideration decision. 1. The Appellant Has Not Shown A Disabling Condition. I find that the appellant has not proved that the conditions he identified in support of his application for disability retirement benefits were disabling. An applicant for disability retirement benefits can establish that his condition was disabling by showing that, while employed in a position subject to FERS, he became disabled because of a medical condition, resulting in a deficiency in performance, conduct, or attendance. Thieman, 78 M.S.P.R. at 116; 5 C.F.R. § 844.103(a)(2). There is no evidence that the appellant's medical conditions caused a deficiency in performance or attendance. The Supervisor's Statement in connection with the appellant's application for disability retirement benefits stated that the appellant did not have a deficiency in performance and that the appellant's attendance became unacceptable only after he was removed from service. See IAF, Tab 5 at 102-03. Similarly, the appellant's former first-line supervisor stated in her affidavit that the appellant “was fully successful in his job duties.” IAF, Tab 16 at 5. As for a deficiency in conduct, the Supervisor's Statement does state that the appellant's conduct became unsatisfactory in February 2020. IAF, Tab 5 at 103. That is the month the agency proposed the appellant's removal after the appellant had formed a relationship with a subordinate employee, had been advised by the employee that he “prefer[red] to keep the friendship between [them] platonic,” and then reacted by physically lashing out at agency property and emailing derogatory comments about the other employee to both the employee and to other agency personnel. See id. at 104-07. The appellant has not pointed to evidence corroborating that this misconduct—which the appellant's former first-line supervisor characterized as “a campaign of harassment” that included “sending derogatory emails” about a subordinate employee to other employees at the agency (IAF, Tab 16 at 5)—was attributable to his medical conditions. For these reasons, I find that the appellant has not shown that his disabling conditions caused any deficiency in performance, conduct, or attendance. That conclusion does not end the inquiry, however. An appellant can also show that his condition was disabling by showing that his condition prevented him from rendering useful and efficient service. OPM regulations define “useful and efficient service” to include “acceptable performance of the critical or essential elements” of the employee's position and satisfactory conduct and attendance. 5 C.F.R. § 844.102; see also Bracey v. Office of Personnel Management, 236 F.3d 1356, 1360 (Fed. Cir. 2001). Thus, the ultimate question for the Board in a disability retirement case is whether, based on the totality of the evidence, “the employee's medical impairments preclude [him or] her from rendering useful and efficient service in [his or] her position?” Henderson v. Office of Personnel Management, 117 M.S.P.R. 313, ; 20 (2012). All pertinent evidence—“objective clinical findings, diagnoses and medical opinions, subjective evidence of pain and disability, and evidence relating to the effect of the applicant's condition on [his or] her ability to perform the duties of [his or] her position”—must be considered. Id. at 19. To illustrate, in Henderson, the Board rejected as “unwarranted” an approach to disability retirement cases that would condition disability retirement benefits on a medical provider “explain[ing] specifically how [an appellant's] medical condition affects specific work requirements.” Id. at ; 17. The decision offered, by way of illustration, a fact-pattern that could make out the required showing in the absence of such evidence: “For example, if the medical provider provides clinical findings, a diagnosis, and a description of how the medical condition affects the appellant's activities in general terms, the Board could consider that evidence,” along with “the appellant's subjective account of how the condition has affected [his or] her ability to do [his or] her job,” as well as testimony from other fact witnesses such as supervisors, coworkers, family, and friends, to support the conclusion “that the medical condition is incompatible with useful and efficient service in [his or] her position.” Id. at ; 19. A different Board decision that involved a different appellant, but which also bears the caption Henderson v. Office of Personnel Management, 109 M.S.P.R. 529 (2008), similarly teaches that “OPM must consider all of an applicant's competent medical evidence, and an applicant may prevail based on medical evidence that consists of a medical professional's conclusive diagnosis, even if based primarily on his/her analysis of the applicant's own descriptions of symptoms and other indicia of disability.” Id. at ; 12 (citing Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034, 1041 (Fed. Cir. 2007)). The ultimate question is not what caused the appellant's symptoms but whether he has shown that he is disabled by the symptoms as he alleges. See Yoshimoto v. Office of Personnel Management, 109 M.S.P.R. 86, ; 18 (2008). To analyze whether the appellant has made the required showing in this case, I start with his job duties. The appellant's work was as a meteorologist at the National Weather Service Forecast Office in Anchorage, Alaska, the largest forecast area in the United States. IAF, Tab 6 at 13. His major duties involved a “wide range of assignments of considerable difficulty and complexity in forecasting or climatology.” Id. The work involved (among other related activities) forecasting weather, developing warning and preparedness programs, training meteorologists, and instructing others on using audio visual aids to weather forecasting such as weather charts. Id. at 13-14. The work also involved intra-agency contacts and contacts with government officials at the state and local level, as well as contacts with the general public and mass news media. Id. at 16. The work environment “most closely resemble[d] that of an office with added specialized equipment” for weather forecasting and broadcasting. Id. at 17. Based on the record evidence, I find that the appellant has not shown that any disabling condition or conditions were incompatible with useful and efficient service. This is because the appellant seeks to establish entitlement to benefits based on condition or conditions that appear to be situational in nature. The Board has long held that an appellant seeking disability retirement benefits must be able to show that he is unable to perform his job duties in general, and not only in the context of his previous work environment. Cosby v. Office of Personnel Management, 106 M.S.P.R. 487, ; 7 (2007). Thus, the Board has upheld OPM's decision to deny disability retirement benefits where an appellant's claims of stress, anxiety, and depression were linked to workplace friction with a specific individual, id. ;; 7-8; Guthrie v. Office of Personnel Management, 105 M.S.P.R. 530, ;; 10-12 (2007), or a specific work environment, Boss v. Office of Personnel Management, 23 M.S.P.R. 234, 237- 38 (1984). The appellant relies entirely on the medical opinions of two treatment providers and the underlying medical notes of those providers. He has not presented any subjective evidence linking his conditions to his ability or inability to perform the essential elements of his position. The first medical opinion was in the form of a letter dated March 2, 2020. The one-page letter was drafted by a physician who treated the appellant for “many years,” Dr. Nathaniel Haddock. IAF, Tab 6 at 33. Haddock's letter explained that, for most of those years of treatment, the appellant “ha[d] sustained in a good remission in symptoms” by taking “long term maintenance medication.” Id. The letter then stated that the appellant had experienced a “recent relapse” of depression and anxiety symptoms, which the letter attributed to his “current personnel [sic] relationships at work.” IAF, Tab 6 at 33. This explanation links personal difficulties to two medical conditions, but does not link his medical condition to any misconduct or to any general inability to perform the essential duties of his position. Further supporting the conclusion that the appellant's condition was situational, Haddock stated that the recommended treatment for the appellant was— [a] change in work environment which would remove the current trigger/stressors related to unique personnel [sic] dynamics, to continue medical treatment and follow-ups, [and] to continue to follow-up with counseling. Id. Thus, the letter from Haddock frames both the appellant's condition and its treatment in situational terms rather than in terms of a general inability to perform the essential duties of his position. This conclusion is consistent with medical treatment notes from Haddock, reporting that the appellant's depression “seem[s] to be related to work with having ongoing issues with one of his coworkers and that every time he sees this person it triggers him and he mentally shuts down. ” IAF, Tab 7 at 52 (medical treatment note dated 01/27/2020); id. at 54 (medical treatment note dated 11/26/2019 reporting that the appellant stated that certain powerful feelings were “triggered by a specific event, but that he does not want to discuss what that event was”). The second expert opinion that the appellant relies upon is an undated report that appears to have been drafted at some point during or after April 2021.[5] The report was signed by Dr. Terrence L. Pansino. IAF, Tab 7 at 4-13. The report states at the outset that it “contains a comprehensive rationale to support Mr. Tschantz's claim” for disability retirement benefits and opines that his conditions “rendered him incapable of performing his normal job duties.” Id. at 4. Although the letter sets out the appellant's job duties and opines that the appellant was unable to perform them, Pansino reasoned that “[h]is conditions and symptoms are triggered and exacerbated by his work environment” (id. at 9), that feelings of anxiousness with coworkers are “aggravated by certain surroundings” and the appellant's “work environment” (id. at 10), that the appellant “experienced numerous issues with his coworkers creating a toxic work environment” (id.), and that the appellant was “unable to lead and participate in an environment that consists of work relationships that trigger his anxiety and depression” (id.). In sum, Pansino's opinion is heavily rooted in the appellant's work environment and does not corroborate that the appellant's conditions created a general inability to perform the essential elements of his position rather than arising out of situational aspects of his relationships and work environment. In sum, the appellant has based the argument that he suffers from a disabling condition on medical opinions from two providers who do not show that the appellant was unable to render useful and efficient service and instead indicate that the appellant's conditions were situational. Particularly in the absence of other evidence from the appellant, compare Yoshimoto, 109 M.S.P.R. 86 at ;; 18-19, I perceive insufficient evidence to establish that the appellant's conditions were incompatible with useful and efficient service.[6] 2. The Appellant Did Not Show His Disabling Condition Was Expected to Continue For More Than One Year. I find that the appellant has not shown that his disabling condition was expected to continue for more than one year. To prove eligibility for disability retirement benefits under FERS an applicant must prove that his disabling condition is expected to continue for at least one year from the date the application for disability retirement is filed. See 5 C.F.R. § 844.103(a)(3). An application is considered filed on the date it was received by OPM, if filed by personal delivery. 5 C.F.R. § 844.201(a)(2). The date of filing by mail is the date of a legible postmark or, if there is none, 5 days before OPM received the filing. Id. In this appeal, the appellant has not provided evidence as to how and when he filed his application for disability retirement benefits. OPM received the application on June 2, 2020. IAF, Tab 5 at 77. Because there is no visible postmark on the application contained in the agency file, I treat the appellant's application as having been filed five days prior, on May 28, 2020, in accordance with 5 C.F.R. § 844.201(a)(2). Combining the regulations with the dates that are in the record, the appellant must establish that his disabling condition was expected to continue through May 28, 2021. I find that the appellant has not made the required showing, for essentially the same reasons why I find that the appellant did not establish that his condition is disabling: the appellant's disability appears to be situational rather than related to the general duties of his position. And although Dr. Pansino opined that the appellant's “medical conditions [were] expected to last for at least 12-18 months,” the opinion was rooted in the appellant's “demanding job duties and the work environment [which] are not expected to change.” IAF, Tab 7 at 13. In other words, just like his disability analysis, Pansino's opinion about the expected duration of the appellant's condition was based at least in substantial part on the appellant's work environment. Moreover, Dr. Haddock wrote that because “the current relapse of depression and anxiety symptoms is actually triggered by his current personnel [sic] relationships at work, so it is particularly less clear what the duration of current relapse of symptoms will be.” IAF, Tab 6 at 33. For these reasons, I find that the appellant has not established that he suffered from a disabling condition that was expected to continue for at least one year from the date his application was filed. 3. The Appellant Has Not Shown Accommodation Would Be Unreasonable. Finally, I find that the appellant has not shown by preponderant evidence that accommodating his condition would be unreasonable. An accommodation is “a reasonable adjustment made to an employee's job or work environment that enables the employee to perform the duties of the position.” 5 C.F.R. § 844.102. Such accommodations may include “modifying the worksite; adjusting the work schedule; restructuring the job; obtaining or modifying equipment or devices; providing interpreters, readers, or personal assistants; and retraining the employee.” Id.; see also Marino v. Office of Personnel Management, 243 F.3d 1375, 1377 (Fed. Cir. 2001). To prove that accommodation would be unreasonable, an appellant is not obligated to show that he in fact requested a particular accommodation. See Gooden v. Office of Personnel Management, 471 F.3d 1275, 1279 (Fed. Cir. 2006). Instead he must show that an accommodation would have been unreasonable “at the time of his removal” or resignation. Id. The appellant has not offered medical or other competent evidence to convincingly explain why the conditions he suffered from could not be accommodated, such as with changes to the work environment or adjustments to his work schedule. Cf. Thomas v. Office of Personnel Management, 54 M.S.P.R. 686, 690-91 (1992) (discussing medical evidence supporting the conclusion that accommodation was not reasonable in that case). As noted previously, the appellant did not file any close-of-record submission with the Board. At the reconsideration stage, the appellant made only the conclusory argument to OPM that “Tschantz's agency was unable to provide a reasonable accommodation for his medical conditions.” IAF, Tab 5 at 29. The appellant does not point to record evidence that would support this contention by preponderant evidence. For these reasons, I find that the appellant did not establish that his condition could not be reasonably accommodated. * * * Based on my review of the record, there can be no reason to doubt that the appellant struggles with medical and mental health conditions. Nothing about this decision should be read to suggest otherwise. The narrow question before the Board, however, is whether the appellant has established his entitlement to disability retirement benefits under FERS. That question must be answered in the negative. As a result, OPM's final reconsideration decision must be affirmed. DECISION OPM's final reconsideration decision is AFFIRMED. FOR THE BOARD: ___________________________________ Daniel R. Fine Administrative Judge NOTICE TO APPELLANT This initial decision will become final on August 12, 2022, unless a petition for review is filed by that date. This is an important date because it is usually the last day on which you can file a petition for review with the Board. However, if you prove that you received this initial decision more than 5 days after the date of issuance, you may file a petition for review within 30 days after the date you actually receive the initial decision. If you are represented, the 30-day period begins to run upon either your receipt of the initial decision or its receipt by your representative, whichever comes first. You must establish the date on which you or your representative received it. The date on which the initial decision becomes final also controls when you can file a petition for review with one of the authorities discussed in the “Notice of Appeal Rights” section, below. The paragraphs that follow tell you how and when to file with the Board or one of those authorities. These instructions are important because if you wish to file a petition, you must file it within the proper time period. BOARD REVIEW You may request Board review of this initial decision by filing a petition for review. If the other party has already filed a timely petition for review, you may file a cross petition for review. Your petition or cross petition for review must state your objections to the initial decision, supported by references to applicable laws, regulations, and the record. You must file it with: The Clerk of the Board Merit Systems Protection Board 1615 M Street, NW. Washington, DC 20419 A petition or cross petition for review may be filed by mail, facsimile (fax), personal or commercial delivery, or electronic filing. A petition submitted by electronic filing must comply with the requirements of 5 C.F.R. § 1201.14, and may only be accomplished at the Board's e-Appeal website (https://e-appeal.mspb.gov). Criteria for Granting a Petition or Cross Petition for Review Pursuant to 5 C.F.R. § 1201.115, the Board normally will consider only issues raised in a timely filed petition or cross petition for review. Situations in which the Board may grant a petition or cross petition for review include, but are not limited to, a showing that: (a) The initial decision contains erroneous findings of material fact. (1) Any alleged factual error must be material, meaning of sufficient weight to warrant an outcome different from that of the initial decision. (2) A petitioner who alleges that the judge made erroneous findings of material fact must explain why the challenged factual determination is incorrect and identify specific evidence in the record that demonstrates the error. In reviewing a claim of an erroneous finding of fact, the Board will give deference to an administrative judge's credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing. (b) 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 petitioner must explain how the error affected the outcome of the case. (c) The 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. (d) New and material evidence or legal argument is available that, despite the petitioner's due diligence, was not available when the record closed. To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed. As stated in 5 C.F.R. § 1201.114(h), a petition for review, a cross petition for review, or a response to a petition for review, whether computer generated, typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A reply to a response to a petition for review is limited to 15 pages or 3750 words, whichever is less. Computer generated and typed pleadings must use no less than 12 point typeface and 1-inch margins and must be double spaced and only use one side of a page. The length limitation is exclusive of any table of contents, table of authorities, attachments, and certificate of service. A request for leave to file a pleading that exceeds the limitations prescribed in this paragraph must be received by the Clerk of the Board at least 3 days before the filing deadline. Such requests must give the reasons for a waiver as well as the desired length of the pleading and are granted only in exceptional circumstances. The page and word limits set forth above are maximum limits. Parties are not expected or required to submit pleadings of the maximum length. Typically, a well-written petition for review is between 5 and 10 pages long. If you file a petition or cross petition for review, the Board will obtain the record in your case from the administrative judge and you should not submit anything to the Board that is already part of the record. A petition for review must be filed with the Clerk of the Board no later than the date this initial decision becomes final, or if this initial decision is received by you or your representative more than 5 days after the date of issuance, 30 days after the date you or your representative actually received the initial decision, whichever was first. If you claim that you and your representative both received this decision more than 5 days after its issuance, you have the burden to prove to the Board the earlier date of receipt. You must also show that any delay in receiving the initial decision was not due to the deliberate evasion of receipt. You may meet your burden by filing evidence and argument, sworn or under penalty of perjury (see 5 C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail is determined by the postmark date. The date of filing by fax or by electronic filing is the date of submission. The date of filing by personal delivery is the date on which the Board receives the document. The date of filing by commercial delivery is the date the document was delivered to the commercial delivery service. Your petition may be rejected and returned to you if you fail to provide a statement of how you served your petition on the other party. See 5 C.F.R. § 1201.4(j). If the petition is filed electronically, the online process itself will serve the petition on other e-filers. See 5 C.F.R. § 1201.14(j)(1). A cross petition for review must be filed within 25 days after the date of service of the petition for review. NOTICE TO AGENCY/INTERVENOR The agency or intervenor may file a petition for review of this initial decision in accordance with the Board's regulations. NOTICE OF APPEAL RIGHTS You may obtain review of this initial decision only after it becomes final, as explained in the “Notice to Appellant” section above. 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 decision when it becomes final, 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 this decision becomes final. 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 this decision becomes final under the rules set out in the Notice to Appellant section, above. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). 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 this decision becomes final as explained above. 5 U.S.C. § 7702(b)(1). 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 with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. The court of appeals must receive your petition for review within 60 days of the date this decision becomes final under the rules set out in the Notice to Appellant section, above. 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 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 Footnotes [1] The parentheticals accompanying the descriptions—F33.2, F41.1, G47.33—appear to be medical codes for “ICD-10,” a diagnostic and procedure coding system for health conditions. See https://www.cms.gov/medicare/coding/icd10?redirect=/icd10 (last accessed July 4, 2022). [2] The final reconsideration decision was dated September 20, 2021. Because the appellant attempted to file his appeal on October 19, 2021, but averred that the Board did not receive and docket the appeal (IAF, Tab 1 at 18 (unpaginated)), the Board treated the appeal as timely filed. [3] After issuing the Close of Record Order, I suspended case processing for 30 days. IAF, Tab 14. As noted in the Order Suspending Case Processing, the suspension “[did] not alter any pending deadline.” Id. [4] As it happens, I do not find that Exhibits 6 and 7 are relevant to the disposition of this appeal, because Dr. Folks applied a definition of disability that differs from that which applies to disability retirement benefits under FERS and I do not find his analysis to be otherwise-illuminating on the issues necessary to resolve the appeal. But there is no reason to strike Exhibits 6 and 7. I just do not place weight on them. [5] Medical treatment notes indicate that the physician who drafted the report was a general practitioner who treated the appellant beginning in or around September 2020; the most recent treatment note in the record is from April 2021. IAF, Tab 7 at 14-47. [6] For this reason, I need not explore in greater depth other aspects of Pansino's opinion that might have merited additional scrutiny. Most obviously, Pansino does not describe himself as a mental health professional; his report states that the appellant had undergone psychological evaluations “that were done elsewhere and are in the process of being sent to me” (IAF, Tab 7 at 4), but there is no indication he reviewed the reports or was familiar with their reasoning and conclusions. Thus, both the basis for his opinions and their underlying foundation are not entirely clear. Similarly, the report does not explain how Pansino reached conclusions about the appellant's ability or inability to perform the essential elements of his position while he was still employed by the agency and covered under FERS, a period of time when it appears Pansino had not treated the appellant.