                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ADAM ERWIN,                                     DOCKET NUMBER
                         Appellant,                  DA-0752-13-0523-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: October 17, 2014
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Mark L. Cohen, Esquire, Chicago, Illinois, for the appellant.

           Marilyn R. Chambers, Esquire, and Robert H. Humphries, Esquire,
            Houston, Texas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained his removal for inability to perform the essential duties of his position.
     Generally, we grant petitions such as this one only when: the initial decision

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

     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 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.        See
     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, and based on the
     following points and authorities, 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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2         The agency removed the appellant from his position as a Marine
     Interdiction Agent, based on a charge of inability to perform the essential duties
     of his position. Initial Appeal File (IAF), Tab 6, Subtab 4b at 1. As a Marine
     Interdiction Agent, the agency specified that the appellant was required, among
     other things, “to use proper judgment and make quick decisions in law
     enforcement situations to protect the life of self, public, and other law
     enforcement personnel, [and] carry a government issued weapon.” Id., Subtab 4h
     at 1. The appellant’s position required “a high degree of reliability including a
     responsibility to the public.” Id., Subtab 4ac at 1. Based on the strenuous and
     hazardous nature of the duties typically performed, the agency required the
     appellant to meet certain physical and medical requirements such that any
     psychiatric condition could result in medical disqualification if the condition
     affected his ability to perform the essential duties of his position. Id.; see id.,
     Subtab 4z at 7. In the position description summary, the agency stated that any
     condition hindering the full and effective performance ability of an individual in
                                                                                         3

     the appellant’s position or causing an individual to be a hazard to himself or to
     others is disqualifying. Id., Subtab 4ac at 2; see id., Subtab 4z at 7.
¶3         The agency removed the appellant based primarily on the August 4, 2012
     report provided by Dr. Nahmias, a Board-certified psychiatrist, who performed a
     psychiatric fitness-for-duty examination and risk assessment. Id., Subtabs 4b, 4h.
     The agency asked Dr. Nahmias to evaluate the appellant after the results of a
     routine safety survey and subsequent follow-up memoranda revealed concerning
     incidents involving the appellant.      Id., Subtabs 4h, 4j, Tab 19, Exhibit 9.
     Dr. Nahmias diagnosed the appellant with a severe adjustment disorder and
     concluded that the appellant posed a potential threat to himself and others. Id.,
     Subtab 4l at 7-8. Dr. Prunier, another Board-certified psychiatrist, agreed with
     Dr. Nahmias’ opinion that the appellant was not psychiatrically fit for duty. Id.,
     Subtab 4j at 2, 4.    The agency removed the appellant based on the medical
     findings. Id., Subtab 4b at 2.
¶4         The appellant appealed his removal, alleging that he was fit for duty and
     that his removal was in reprisal for reporting that several coworkers and managers
     engaged in fraud, waste, and abuse. IAF, Tab 1 at 6, Tab 18 at 60. He argued,
     among other things, that the coworkers and management he implicated in his
     report falsely alleged that he was a threat to himself and others and that their false
     allegations resulted in his removal. IAF, Tab 1 at 6. The appellant also referred
     to an opinion he provided from an independent psychiatrist, Dr. Raheem, who
     concluded that he had no psychiatric symptoms that were not amenable to
     treatment or required any follow-up. IAF, Tab 1 at 6, Tab 6, Subtab 4k. The
     appellant initially requested a hearing on his appeal; however, he later withdrew
     his request and asked the administrative judge to make a decision based on the
     written record. IAF, Tab 11 at 3.
¶5         The administrative judge issued a 30-page initial decision thoroughly
     analyzing the probative value of the parties’ submissions, including the three
     psychiatric reports, and found that the agency proved the charge by preponderant
                                                                                          4

     evidence. IAF, Tab 20, Initial Decision (ID) at 2, 21. The administrative judge
     also found that the appellant failed to prove his affirmative defense of
     whistleblower retaliation.     ID at 21, 28.        In reaching her decision, the
     administrative judge found that the appellant made protected disclosures under
     5 U.S.C. § 2302(b)(8) and, based on the knowledge and timing test, those
     disclosures were a contributing factor in the agency’s action; however, she found
     that the agency proved by clear and convincing evidence that it would have taken
     the same action absent his disclosures. ID at 23, 28. The administrative judge
     also found that the removal penalty was reasonable and promoted the efficiency
     of service because the agency submitted evidence demonstrating that there was no
     position available that the appellant could perform. ID at 30.
¶6         In challenging the initial decision affirming his removal, the appellant
     argues, for the first time on review, that the agency displayed a lack of candor,
     committed perjury, and violated his constitutional rights under the First and
     Fourth Amendments. 2 Petition for Review (PFR) File, Tab 1 at 5. The appellant
     also alleges that the agency refused to provide the documents he requested under
     the Freedom of Information Act (FOIA) in June 2012, and he asks the Board to
     delay his appeal until he receives the documents he requested pertaining to his job
     performance and the alleged fraud, waste, and abuse. Id. However, none of these
     issues were included in the administrative judge’s Notice of Rulings, in which she
     identified the issues in dispute on appeal.       IAF, Tab 15 at 1.      Because the
     appellant failed to object to the administrative judge’s ruling identifying the


     2
       The appellant alleges that agency witnesses perjured themselves in their depositions
     by, among other things, falsely stating that his mother died near the time that his
     behavior became erratic, that he rarely took vacation, and that his life was on an
     unsuccessful spiral. Petition for Review File, Tab 1 at 5-6. He alleges that the agency
     maliciously presented “information in a twisted manner that indicates there is
     something wrong with” him in an “effort to turn benign actions into mental illness
     accusations.” Id. at 7. He also alleges that the agency violated his Fourth Amendment
     rights by searching his home and his car on June 12, 2012, and that the agency violated
     his First Amendment rights by terminating him in reprisal for whistleblowing. Id. at 5.
                                                                                         5

     issues in dispute or submit a motion to supplement her summary of issues in
     dispute, as required on appeal below, the appellant is precluded from raising these
     additional issues on review. See id. at 3.
¶7         Moreover, although the appellant complains about the agency’s alleged
     failure to produce documents pursuant to his FOIA request, he does not indicate
     that he attempted to obtain documents through the Board’s discovery process or
     that he filed a motion to compel discovery, although the administrative judge
     informed him of the procedure for doing so. PFR File, Tab 1 at 5; IAF, Tab 2 at
     2-3; see Ioannou v. Office of Personnel Management, 56 M.S.P.R. 426, 431-32
     (1993). Furthermore, the appellant has not shown any jurisdictional basis that
     permits the Board to hear disputes concerning an agency’s alleged failure to
     provide documents in response to a FOIA request. See Ioannou, 56 M.S.P.R. at
     431-32; see also 5 U.S.C. § 552(a)(4)(B) (U.S. district courts have jurisdiction to
     decide disputes over an agency’s compliance with FOIA).
¶8         On review, the appellant also challenges the administrative judge’s finding
     that the agency met its burden of proving the charge of inability to perform the
     essential duties of his Marine Interdiction Agent position. PFR File, Tab 1 at 5.
     The appellant argues, inter alia, that the administrative judge’s initial decision did
     not take “sufficient notice of the perjury of the agency and the impact that the
     perjury had on the decision of Dr. [] Nahmias.” Id. For the reasons explained
     above, the Board will not consider the merits of the appellant’s perjury
     allegations.    However, based on the appellant’s general allegation that
     Dr. Nahmias relied on misleading statements provided by the agency, we will
     review the administrative judge’s assessment of the probative weight of Dr.
     Nahmias’ medical opinion. PFR File, Tab 1 at 7.
¶9         In assessing the probative weight of medical opinion, the Board considers
     whether the opinion was based on a medical examination, whether the opinion
     provided a reasoned explanation for its findings as distinct from mere conclusory
     assertions, the qualifications of the expert rendering the opinion, and the extent
                                                                                            6

      and duration of the expert’s familiarity with the treatment of the appellant. Slater
      v.   Department   of   Homeland    Security,     108   M.S.P.R.    419,    ¶ 16 (2008).
      Dr. Nahmias examined the appellant and provided a detailed, well-reasoned
      opinion and a sworn declaration, diagnosing the appellant with a severe,
      unspecified adjustment disorder, and concluding that he was not fit for duty
      because he was a potential threat to himself and others. IAF, Tab 6, Subtab 4L at
      7-8, Tab 19 at Exhibit 9.
¶10         Dr. Nahmias based his opinion on more than just the allegedly misleading
      statements provided by the agency. Dr. Nahmias also based his opinion on: his
      3-hour interview with the appellant; the results of a supervised Minnesota
      Multiphasic   Personality Inventory-2;     the    agency’s    initial   fitness-for-duty
      examination with attached information regarding the reason for the request,
      memoranda from seven Marine Interdiction Agents and seven 2012 safety
      surveys; the results of the fitness-for-duty examination by Dr. Ashby on July 2,
      2012, and a handwritten note from Dr. Ashby; and the job description for a
      Marine Interdiction Agent. See ID at 6; IAF, Tab 6, Subtab 41 at 1. Dr. Nahmias
      also reviewed the appellant’s position description and determined that he is
      restricted from carrying a weapon and he is unable to safely, efficiently, and
      reliably perform any of the tasks of his position. IAF, Tab 6, Subtab 4L at 7-8.
      Dr. Nahmias concluded that, although the appellant’s restrictions are not
      permanent, his prognosis for a return to full-duty is uncertain because of his lack
      of cooperation. Id.
¶11         As explained above, another Board-certified psychiatrist, Dr. Prunier,
      reviewed the records concerning the appellant and concurred in Dr. Nahmias’
      opinion that the appellant was not fit for duty.             IAF, Tab 6, Subtab 4j.
      Dr. Prunier also opined that Dr. Nahmias’ evaluation was credible, complete, and
      well-documented. Id. On review, the appellant has not submitted any medical
      evidence contradicting the opinions of Drs. Nahmias and Prunier.
                                                                                          7

¶12        In sustaining the agency’s charge, the administrative judge found that the
      well-reasoned medical opinions of Dr. Prunier and Dr. Nahmias that the appellant
      is not fit for duty were entitled to more probative weight than the second opinion
      the appellant provided from Dr. Raheem, concluding that the appellant had no
      psychiatric symptoms.     ID at 20; IAF, Tab 6, Subtabs 4j-l.        Contrary to the
      appellant’s arguments on review, the administrative judge carefully considered
      the medical evidence, which included affidavits from Dr. Nahmias and
      Dr. Prunier disagreeing with Dr. Raheem’s opinion. ID at 6-16, 18-21; IAF, Tab
      19, Exhibits 9-10.    The administrative judge found that nothing in the record
      indicated Dr. Raheem was qualified to render an opinion concerning the
      appellant’s fitness for duty. 3 ID at 20. The administrative judge also found that
      Dr. Raheem’s report did not indicate that she reviewed the appellant’s position
      description, conducted any psychological testing, or reviewed or considered any
      of the memoranda or safety surveys that gave rise to the agency’s safety concerns.
      ID at 20.    Based on the foregoing, the administrative judge found that Dr.
      Raheem’s report had limited probative value because it was conclusory and
      devoid of any supporting medical documentation or explanation in support of her
      conclusions. ID at 20. The appellant’s arguments on review present no reason to
      disturb the administrative judge’s findings concerning the probative weight of the
      medical evidence or her decision to sustain the agency’s charge based on her
      finding that “it was more likely than not true that the appellant is unable to
      perform the essential duties of his position.” ID at 21.
¶13        On review, the appellant also challenges the administrative judge’s finding
      that he failed to prove his affirmative defense of whistleblower retaliation,
      arguing that “the agency has never treated a similarly[-]situated employee as they
      [treated him].” PFR File, Tab 1 at 8. He asserts that there were other agents
      described as unsafe in the safety survey and that the agency did not refer any of
      3
       Dr. Raheem’s curriculum vitae is not part of the record and her professional licenses
      and certifications are not specified.
                                                                                         8

      them for a fitness-for-duty physical. Id. He further argues that there are agents
      who fail their physicals, and the agency just tells them to get another one. Id.
¶14        In finding that the agency had shown by clear and convincing evidence that
      it would have removed the appellant absent any protected disclosures, the
      administrative judge found that there was no evidence showing that the agency
      treated any similarly-situated employee, who was not a whistleblower, more
      favorably than the appellant. ID at 28. The appellant has not submitted or cited
      any evidence to support his conclusory arguments on review, and we discern no
      reason to reweigh the evidence or substitute our assessment of the record
      evidence for that of the administrative judge. See Crosby v. U.S. Postal Service,
      74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative
      judge’s findings when the administrative judge considered the evidence as a
      whole, drew appropriate inferences, and made reasoned conclusions); Broughton
      v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶15        On review, the appellant challenges the administrative judge’s finding that
      the removal penalty is reasonable and promotes the efficiency of service, arguing
      that the “[t]he agency made no attempt at a less costly and more compassionate
      solution.”   PFR File, Tab 1 at 9.    Generally, in instances where an employee
      cannot perform the essential functions of his position, the Board will consider
      whether the agency could have instead reassigned the employee to a vacant
      position within his medical restrictions. See Brown v. Department of the Interior,
      121 M.S.P.R. 205, ¶ 17 (2014). Removal for inability to perform the essential
      functions of a position promotes the efficiency of the service, particularly when
      the inability to perform would endanger the health and safety of others. See id.
¶16        The agency identified several non-law enforcement positions that the
      appellant was qualified for; however, Dr. Nahmias reviewed the position
      descriptions for these jobs and opined that the appellant was unable to perform
      any of the job functions of those positions. ID at 29-30; IAF, Tab 6, Subtab 4i,
      Tab 19, Exhibit 22. Based on this evidence, the administrative judge found that
                                                                                       9

      the agency had demonstrated that it could not reassign the appellant to another
      position and that his removal promoted the efficiency of the service. ID at 30.
      The appellant argues that the agency should have considered a lesser penalty to
      address its safety concerns, such as verbal counseling or training.      However,
      where, as here, the agency has established the charge, the Board generally will
      not disturb the penalty unless it exceeds the bounds of reasonableness. We do not
      believe the penalty of removal exceeds the bounds of reasonableness in this case.
      We therefore find that the appellant’s arguments on review are not sufficiently
      sound to overturn the administrative judge’s finding that the appellant’s removal,
      based on the proven charge of inability to perform the essential duties of a Marine
      Interdiction Agent, was reasonable and promoted the efficiency of the service.
¶17        Finally, as an attachment to his petition for review, the appellant has
      submitted numerous leave slips ranging in date from 2010 through 2012 and an
      electronic message acknowledging a pending FOIA request. PFR File, Tab 1 at
      10, 12-34.   The appellant asserts that some of this evidence was unavailable
      before the record closed on appeal. Id. at 10. Even if we determine that this
      evidence was unavailable, however, it is not of sufficient weight to warrant an
      outcome different from that of the initial decision.         See Russo v. Veterans
      Administration, 3 M.S.P.R. 345, 349 (1980). Accordingly, while the appellant
      disagrees with the administrative judge’s findings and determinations, he has
      shown no basis upon which to disturb the initial decision.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit.
           The court must receive your request for review no later than 60 calendar
      days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
      27, 2012). If you choose to file, be very careful to file on time. The court has
      held that normally it does not have the authority to waive this statutory deadline
                                                                                         10

and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
        If you want to request review of the Board’s decision concerning your
claims     of   prohibited     personnel    practices   under   5   U.S.C.     § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States 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 after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,    at   our     website,     http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective         websites,        which        can      be        accessed        through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
        If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
                                                                             11

at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit.      The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
