UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

NATHAN A. SAVAGE, SR.,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

AT-0752-16-0428-I-1

DATE: June 22, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Nathan A. Savage, Sr., Pensacola, Florida, pro se.

Donald Vicini, Esquire, Dallas, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed the appeal for lack of jurisdiction. Generally, we grant petitions such 

as this one 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 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 the petit ioner 

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). 

BACKGROUND

¶2 The appellant filed an application for disability retirement with the Office 

of Personnel Management (OPM), claiming that he was disabled from his City 

Carrier position with the agency based on his medical condition of post-traumatic 

stress disorder. Initial Appeal File (IAF), Tab 17 at 10-18. On January 11, 2016, 

OPM approved the application. Id. at 19-20. On April 4, 2016, the appellant 

filed an appeal with the Board alleging that his disability retirement was 

involuntary, asserting that the agency was aware of his disability and failed or 

refused to accommodate him. IAF, Tab 1.

¶3 The administrative judge found that the appellant had made a nonfrivolous 

allegation of involuntariness and held a jurisdictional hearing. IAF, Tab 19. 

Based on the record, including the hearing testimony, the administrative judge 

issued an initial decision finding that the appellant failed to meet his burden to 

show that his retirement was involuntary. She found that a number of agency 

witnesses testified that the appellant did not tell them that he had a disability and 

that he never requested accommodation. IAF, Tab 21, Initial Decision (ID)

at 4-7. She found that the testimony of these witnesses was more credible than 

the appellant’s testimony that he informed his supervisors that he had a disability. 
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ID at 6. Thus, she found that the appellant failed to show that he requested an

accommodation for a known disability that would have allowed him to continue 

working when he asked for a reassignment to a Custodian position, and he failed 

to meet his burden to prove jurisdiction over his appeal. ID at 7.

¶4 In his petition for review, the appellant argues that the agency must attempt 

to accommodate a disability through the interactive process prior to granting 

disability retirement and it failed to do so. Petition for Review (PFR) File, Tab 2 

at 2-5.2The agency has responded in opposition to the petition. PFR File, Tab 4. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 A retirement is presumed to be a voluntary act and, therefore, beyond the 

Board’s jurisdiction. Morrison v. Department of the Navy, 122 M.S.P.R. 205, ¶ 5 

(2015); see 5 C.F.R. § 752.401(b)(9). An appellant who alleges that a 

presumptively voluntary action was involuntary bears the burden of proving 

Board jurisdiction by a preponderance of the evidence. Garcia v. Department of 

Homeland Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc); 5 C.F.R. 

§ 1201.56(b)(2)(i)(A). In most cases, an appellant who alleges that his disability 

retirement was involuntary must show by preponderant evidence that (1) he 

indicated to the agency that he wished to continue working but that his medical 

limitations required a modification of his work conditions or duties, i.e., 

accommodation; (2) there was a reasonable accommodation available during the 

period between the date on which he indicated to the agency that he had medical 

limitations but desired to continue working and the date that he was separated that 

 

2 On March 30, 2017, the appellant submitted a document to the Board’s Atlanta 

Regional Office (ATRO) that it docketed as a new appeal. While the appeal was 

pending, the appellant stated that he did not wish to file a new appeal but instead 

wanted to file a petition for review of the initial decision issued March 1, 2017. PFR 

File, Tab 1. ATRO forwarded the appellant’s March 30, 2017 submission to the Office 

of the Clerk of the Board for docketing as a petition for review. PFR File, Tab 2. The 

Office of the Clerk of the Board acknowledged the appellant’s March 30, 2017 

submission as a timely filed petition for review. PFR File, Tab 3.
4

would have allowed him to continue working; and (3) the agency unjustifiably 

failed to offer that accommodation. Mims v. Social Security Administration, 

120 M.S.P.R. 213, ¶ 17 (2013).

¶6 Here, we agree with the administrative judge that the appellant failed to 

meet his burden of proof to establish the first of these three elements, i.e., that he 

indicated to the agency that he had medical limitations that required modifying

his work conditions or duties. The administrative judge found that the appellant

testified that he asked three supervisors for a transfer to a position that was less 

stressful. ID at 3-4. However, she found that all three supervisors testified 

credibly that, although the appellant had mentioned that he wanted to leave his 

City Carrier position to become a Custodian, they did not know that he had a 

disability or that it was the reason that he wanted to become a Custodian. ID at 5. 

She also found that the Station Manager testified credibly that he did not know 

that the appellant had a disability or that he needed an accommodation. ID at 4. 

Likewise, she found that the Postmaster testified credibly that she did not know 

that the appellant had a disability. ID at 5. The Board must defer to an 

administrative judge’s credibility determinations when, as here, they are based, 

explicitly or implicitly, on observing the demeanor of witnesses testifying at a 

hearing. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). 

The administrative judge properly found that, because the appellant failed to meet 

his burden to show that he informed the agency that he had medical limitations 

that required accommodation, he failed to show that his disability retirement was 

involuntary. See Garcia, 437 F.3d at 1329; Mims, 120 M.S.P.R. 213, ¶ 17.

¶7 Because the appellant failed to inform his supervisors and managers that he 

had a disability, he also failed to supply the agency with sufficient information 

for it to determine that he was making a request for a reasonable accommodation 

under the Rehabilitation Act of 1973. Thus, the agency had no obligation to

follow up with him, requesting more information about his accommodation needs 

through an informal interactive process. Under these circumstances, the agency 
5

properly did not initiate the sort of exchange that is supposed to occur during the 

interactive process. See 29 C.F.R. § 1630.2(o)(3) (to determine the appropriate 

reasonable accommodation, an agency may need to “initiate an informal, 

interactive process with the individual with a disability in need of the 

accommodation”). Accordingly, we conclude that the appellant’s assertion on 

petition for review that the agency failed in its obligation to accommodate his 

disability through the interactive process prior to his receipt of disability 

retirement is unavailing.

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. 

 

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.
6

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

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

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

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

§ 7703(b)(1)(A). 

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

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

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

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

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

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 
7

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

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 

requirement of prepayment of fees, costs, or other 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: 
8

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.4The 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 

 

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. 
9

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.

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board