UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRYAN K. PRATHER,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DE-844E-21-0025-I-1

DATE: March 10, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Leah B. Kille, Esquire, Lexington, Kentucky, for the appellant.

Jo Bell, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
2

FINAL ORDER

¶1 The agency has filed a petition for review and the appellant has filed a cross 

petition for review of the initial decision, which reversed the final decision by the 

Office of Personnel Management (OPM) denying the appellant’s application for 

disability retirement under the Federal Employees’ Retirement System (FERS).

Generally, we grant petitions such as these only in the following circumstances: 

the initial decision contains erroneous findings of material fact; the initial 

decision is based on an erroneous interpretation of statute or regulation or the 

erroneous application of the law to the facts of the case; the administrative 

judge’s rulings during either the course of the appeal or the initial decision 

were not consistent with required procedures or involved an abuse of discretion, 

and the resulting error affected the outcome of the case; or new and material 

evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. Title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that neither party has 

established any basis under section 1201.115 for granting the petition or cross 

petition for review. Therefore, we DENY the petition for review and the cross 

petition for review and AFFIRM the initial decision, which is now the Board’s 

final decision. 5 C.F.R. § 1201.113(b). 

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant’s request for interim relief is denied. 

¶2 The Board’s regulations commit the granting of interim relief to the 

administrative judge’s discretion. 5 C.F.R. § 1201.111(c)(1); see 5 U.S.C. 

§ 7701(b)(2)(A)(i). In this case, the administrative judge denied interim relief. 

Initial Appeal File (IAF), Tab 20, Initial Decision (ID) at 9. In his cross petition, 

the appellant requests that the Board nonetheless award interim relief, arguing 

that the lack of interim payment would cause him a significant financial burden. 
3

Petition for Review (PFR) File, Tab 3 at 8-10. However, there is no authority 

that provides for requesting interim relief that was not ordered. See Dean v. 

Department of the Army, 57 M.S.P.R. 296, 300 (1993). In any event, the 

appellant’s arguments in this regard are now moot because interim relief is in 

effect only pending the disposition of a petition for review. See 5 U.S.C. 

§ 7701(b)(2)(A); Garcia v. Department of State, 106 M.S.P.R. 583, ¶ 7 (2007). 

Accordingly, we deny the appellant’s cross petition.

OPM’s petition for review does not provide a basis for further review.

¶3 Under 5 C.F.R. § 1201.56(a)(2), an employee bears the burden of 

persuasion by a preponderance of the evidence in an appeal from OPM's decision 

on a voluntary disability retirement application. Chavez v. Office of Personnel 

Management, 6 M.S.P.R. 404, 417 (1981). To be eligible for a disability 

retirement annuity under FERS, an employee must show that: (1) he completed at 

least 18 months of creditable civilian service; (2) 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, or, if there is no such 

deficiency, the disabling medical condition is incompatible with useful and 

efficient service or retention in the position; (3) the disabling medical condition is 

expected to continue for at least 1 year from the date the application for disability 

retirement benefits was filed; (4) accommodation of the disabling condition in the 

position held must be unreasonable; and (5) he did not decline a reasonable offer 

of reassignment to a vacant position. Doe v. Office of Personnel Management, 

109 M.S.P.R. 86, ¶ 8 (2008); see 5 U.S.C. § 8451(a); 5 C.F.R. § 844.103(a). On 

review, OPM argues that the administrative judge erred in finding that the 

appellant established requirement (4) by a preponderance of the evidence. 

¶4 In Bracey v. Office of Personnel Management, 236 F.3d 1356 (Fed. Cir. 

2001), the U.S. Court of Appeals for the Federal Circuit held that, for purposes of 

determining eligibility for disability retirement under the Civil Service 

Retirement System, an accommodation precludes disability retirement only if it 
4

(1) adjusts the employee’s job or work environment, enabling him to perform the 

critical or essential duties of his position; or (2) reassigns the employee to an 

established, vacant position at the same grade and pay. Id. at 1358-59. The court 

found that, in that case, the employee’s assignment to a light-duty position did 

not constitute an accommodation because he did not perform the “critical or 

essential elements” of the position but performed lower-graded duties instead. Id. 

at 1360-61. The court further concluded that the assignment did not constitute a 

reassignment to a vacant position since the light-duty assignment consisted of a 

“set of duties selected on an ad hoc basis to fit the needs of a particular disabled 

employee” and was not a definite, preexisting position that was classified and 

graded according to its duties, responsibilities, and qualification requirements. 

Id. at 1359-60. In Marino v. Office of Personnel Management, 243 F.3d 1375, 

1377 (Fed. Cir. 2001), the court extended the holding of Bracey to disability 

retirement applications under FERS. 

¶5 OPM argues that, because the record does not provide the details of the 

light-duty assignment the Department of Homeland Security (DHS) offered the 

appellant, it is unknown whether it would have permitted the appellant to perform 

the critical or essential elements of his position. PFR File, Tab 1 at 8. Hence, 

OPM reasons, the appellant failed to show by preponderant evidence that the 

accommodation was not reasonable. Id. However, in an email memorializing the 

offer, the appellant specified that DHS had verbally offered to allow him “to 

return to work on a light duty status to perform ad hoc duties.” IAF, Tab 7 at 167 

(emphasis added). The appellant’s characterization of the offer, which remains 

unrebutted, supports an inference that DHS did not propose an adjustment to his 

job or work environment that would have enabled him to perform the duties of his 

actual position. In any event, the administrative judge did not rely solely on 

Bracey, but further found, based on the medical documentation, the appellant’s 

testimony, and his position description, that reasonable accommodation was 

impossible, particularly given the appellant’s limitations on computer work and 
5

his inability to read and comprehend at his pre-November 2019 level. See ID 

at 7-8. We discern no error in that portion of the analysis, and OPM does not 

challenge it on review. Accordingly, we deny the agency’s petition. 

¶6 We ORDER OPM to approve the appellant’s application for disability 

retirement beginning his last day in pay. OPM must complete this action no later 

than 20 days after the date of this decision.

¶7 We also ORDER OPM to tell the appellant promptly in writing when it 

believes it has fully carried out the Board’s Order and of the actions it has taken 

to carry out the Board’s Order. We ORDER the appellant to provide all necessary 

information OPM requests to help it carry out the Board’s Order. The appellant, 

if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).

¶8 No later than 30 days after OPM tells the appellant it has fully carried out 

the Board’s Order, the appellant may file a petition for enforcement with the 

office that issued the initial decision on this appeal if the appellant believes that 

OPM did not fully carry out the Board’s Order. The petition should contain 

specific reasons why the appellant believes OPM has not fully carried out the 

Board’s Order, and should include the dates and results of any communications 

with OPM. See 5 C.F.R. § 1201.182(a).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney 

fees and costs. To be paid, you must meet the requirements set out at title 5 of 

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The 

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If 

you believe you meet these requirements, you must file a motion for attorney fees 

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. 

You must file your motion for attorney fees and costs with the office that issued 

the initial decision on your appeal.
6

NOTICE OF APPEAL RIGHTS3

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.

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

 

3

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.
7

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 partic ular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 
8

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 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 
9

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.4 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

 

4

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. 
10

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. 

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board