NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

STEPHEN DURR,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

UNITED STATES POSTAL SERVICE,

Intervenor

______________________ 

2022-1072

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. CH-4324-17-0324-M-1.

______________________ 

Decided: November 15, 2022

______________________ 

STEPHEN DURR, Chicago, IL, pro se.

 JEFFREY GAUGER, Office of the General Counsel, 

United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by TRISTAN L.

LEAVITT, KATHERINE MICHELLE SMITH. 

 KELLY A. KRYSTYNIAK, Commercial Litigation Branch, 

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2 DURR v. MSPB

Civil Division, United States Department of Justice, Washington, DC, for intervenor. Also represented by BRIAN M.

BOYNTON, PATRICIA M. MCCARTHY, DOUGLAS K. MICKLE. 

______________________ 

Before CHEN, CLEVENGER, and CUNNINGHAM, Circuit 

Judges. 

PER CURIAM.

Mr. Stephen Durr appeals a final decision of the Merit 

Systems Protection Board (Board or MSPB) dismissing his

appeal alleging violations of the Uniformed Services Employment and Reemployment Rights Act of 1994 

(USERRA) by his former employer, the United States 

Postal Service (USPS). See Durr v. U.S. Postal Serv., No. 

CH-4324-17-0324-M-1, 2021 WL 3287973 (M.S.P.B. July 

30, 2021) (Board Decision) (SAppx. 1–19).1 Because the 

Board did not abuse its discretion in finding the doctrine of 

laches applies, we affirm. 

BACKGROUND

Mr. Durr was honorably discharged from the U.S. 

Army in January 1993 and hired by USPS in March 1994. 

SAppx. 2, 32. On January 16, 1996, USPS recorded Mr. 

Durr as being absent without official leave (AWOL). 

SAppx. 2, 27. Mr. Durr continued to fail to report to work, 

and on April 24, 1996, USPS notified him of a proposal for 

his removal. Id. The notice gave Mr. Durr fourteen days 

to respond, but he did not respond. SAppx. 2, 28. On May 

16, 1996, USPS sent Mr. Durr a letter noting his non1 “SAppx.” citations herein refer to the appendix 

filed concurrently with Respondent’s brief. Additionally, 

because the reported version of the Board’s decision is not 

paginated, citations herein are to the version of the Board 

decision included in the appendix—e.g., Board Decision at 

1 can be found at SAppx. 1.

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DURR v. MSPB 3

response to the removal proposal and informing him that 

he would be removed from service, effective June 1, 1996. 

SAppx. 29–30. The letter also notified Mr. Durr of his right 

to appeal “[the] decision . . . within 30 days from the effective date of [the] decision.” SAppx. 29. Mr. Durr did not 

timely challenge his removal. 

On May 14, 2015, nearly 20 years after his removal, 

Mr. Durr filed an appeal to the Board challenging his 1996 

AWOL charge and his subsequent removal. SAppx. 2. An 

administrative judge dismissed that appeal, the Board affirmed, and we dismissed Mr. Durr’s appeal of the Board’s 

affirmance for failure to prosecute. Durr v. Merit Sys. Prot. 

Bd., No. 2016-1700 (Fed. Cir. May 5, 2016).

Mr. Durr subsequently filed another appeal to the 

Board on April 10, 2017 requesting remedial action under 

USERRA. SAppx. 4. The administrative judge dismissed 

for lack of jurisdiction, which the Board made final. SAppx. 

34. Mr. Durr subsequently appealed to this court, and we 

reversed the dismissal on the basis that Mr. Durr “raised 

allegations sufficient to establish the MSPB’s jurisdiction 

over his appeal under USERRA” and remanded the case 

back to the Board. Durr v. Merit Sys. Prot. Bd., 844 F. 

App’x 329, 331–32 (Fed. Cir. 2021). 

On remand, USPS moved for dismissal based on the 

doctrine of laches. SAppx. 44–46. USPS contended Mr. 

Durr waited over twenty years to bring his USERRA claim 

and that he did not provide any explanation for the delay. 

SAppx. 44–45. USPS further asserted that the employees 

who had personal knowledge regarding Mr. Durr’s removal

were either retired or deceased. SAppx. 45. USPS also 

submitted a declaration by Tim Markland, Manager of Labor Relations for the Central Illinois District of USPS, explaining that the agency attempted, but was unable, to 

locate electronic or hardcopy records related to Mr. Durr’s 

removal. SAppx. 45, 47–51. Mr. Markland’s declaration 

explained he was unsurprised with the lack of 

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4 DURR v. MSPB

documentation because of a USPS policy stating retention 

of documents relating to disciplinary or adverse actions 

may not exceed 10 years beyond the employee’s separation 

date. SAppx. 50 ¶ 9. USPS also averred it faced excessive 

back pay liability. SAppx. 46.

The administrative judge issued a show cause order 

asking why the appeal should not be dismissed based on

the laches doctrine. SAppx. 56–58. Mr. Durr responded 

that USPS’s inability to locate the documents related to his 

removal was due to inadequate recordkeeping. SAppx. 60. 

Mr. Durr further averred that he did not intentionally delay filing his appeal and that any delay was caused by mental incapacitation. SAppx. 64. Mr. Durr also contended 

that he did not discover he was wrongfully removed until 

May 2015. Id.

The administrative judge dismissed Mr. Durr’s 

USERRA claim as barred by laches. Board Decision at 1–

12. The administrative judge found Mr. Durr’s twenty-one

year delay in bringing his USERRA claim unreasonable 

and prejudicial to USPS’s ability to respond. Id. at 11–12. 

While the administrative judge acknowledged Mr. Durr’s 

medical diagnoses for various mental disorders, the judge 

found Mr. Durr was competent enough to stand trial on 

multiple occasions. Id. at 10–11. The administrative judge 

also found the medical evidence (1) showed that Mr. Durr 

could control his conditions through use of medication but 

that he refused medication on occasion and (2) did not show 

sufficient severity and duration of a mental disorder while 

Mr. Durr was taking medication. Id. at 9–11. The administrative judge’s decision became the Board’s final decision 

when Mr. Durr did not petition for Board review within 35 

days. See 5 C.F.R. § 1201.113; Board Decision at 12–13. 

Mr. Durr timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

DISCUSSION

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DURR v. MSPB 5

A party claiming a laches defense must show “unreasonable delay by the petitioner, and prejudice to the respondent because of the delay.” Hoover v. Dep’t of Navy, 

957 F.2d 861, 863 (Fed. Cir. 1992). We do not set aside a 

Board decision unless it is “(1) arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 

law; (2) obtained without procedures required by law, rule, 

or regulation having been followed; or (3) unsupported by 

substantial evidence[.]” 5 U.S.C. § 7703(c); see also Bridgestone/Firestone Rsch., Inc. v. Auto. Club de l’Ouest de la 

France, 245 F.3d 1359, 1361 (Fed. Cir. 2001). 

Mr. Durr’s arguments do not persuade us that the 

Board abused its discretion in dismissing Mr. Durr’s appeal. Substantial evidence supports the Board’s finding

that Mr. Durr’s delay in bringing his USERRA claim was 

both unreasonable and prejudicial. USPS notified Mr. 

Durr of his removal and his right to appeal to the Board in 

1996, yet he waited over twenty years after his removal to 

bring his USERRA claim to the Board. SAppx. 6. Mr. 

Durr’s period of delay is considerably longer than in Sleevi, 

where we affirmed the Board’s dismissal of an USERRA 

appeal based on the doctrine of laches because petitioner 

delayed thirteen years to file his claim. Sleevi v. Merit Sys. 

Prot. Bd., No. 2021-1447, 2021 WL 2879045, at *1 (Fed. 

Cir. July 9, 2021). Moreover, Mr. Durr does not allege the 

Board incorrectly decided or failed to account for any facts, 

applied the wrong law, or failed to consider important 

grounds. See Pet. Informal Br. 2. 

To the extent that Mr. Durr argues his delay was reasonable in light of his mental incapacitation, see Pet. Reply 

Br. ¶¶ 5–6, substantial evidence supports the Board’s finding that Mr. Durr’s mental conditions were not of such severity and duration to cause Mr. Durr’s twenty-one-year 

delay in bringing his USERRA claim to be reasonable. Specifically, the Board relied on medical records showing Mr. 

Durr’s mental conditions were controllable, such that he 

was competent to stand trial on various occasions during 

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6 DURR v. MSPB

the delay period, and that he would refuse medication. See

Board Decision at 9–11. We do not discern any abuse of 

discretion in the Board’s reasoning, which is supported by 

substantial evidence. 

We also find substantial evidence supports the Board’s 

determination that Mr. Durr’s unreasonable delay prejudiced the USPS. Because of the long period between Mr. 

Durr’s removal and his USERRA claim, documentation 

pertaining to Mr. Durr’s removal no longer exists. SAppx. 

7–8. Moreover, relevant personnel with knowledge of Mr. 

Durr’s removal have retired or passed away. SAppx. 8–9. 

Mr. Durr makes no arguments to the contrary. 

CONCLUSION

We have considered Mr. Durr’s remaining arguments 

and find them unpersuasive. For the foregoing reasons, we 

affirm the Board’s dismissal of Mr. Durr’s appeal based on 

the doctrine of laches. 

AFFIRMED

COSTS

No costs.

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