UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHAEL STEPHEN GEERS,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

AT-0752-17-0456-I-1

DATE: March 20, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.

Emily Pasternak, Esquire, and Jennifer J. Veloz, Esquire, Miami, Florida, 

for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

sustained his removal. 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 the facts of the case; the

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

apply the correct legal standard to the agency’s charge, we AFFIRM the initial

decision. 

The following facts, as detailed in the record and initial decision, are not

materially disputed. The appellant held the position of Customs and Border

Protection Officer (CBPO). Initial Appeal File (IAF), Tab 33, Initial Decision

(ID) at 1. In April 2017, he participated in weapons training where he reportedly

pointed his loaded weapon in the direction of colleagues. ID at 3. Thereafter, he

reportedly loaded his weapon prematurely, and then responded to criticism about

the same with snide comments, failing to recognize the seriousness of his actions.

Id. 

The agency ordered the appellant to undergo a fitness-for-duty

examination, followed by a psychiatric independent medical exam (IME). ID

at 4. After the psychiatric IME, during which the appellant denied the alleged

weapons safety violations, the IME psychiatrist found that he did not present with

any psychiatric condition. IAF, Tab 9 at 11-22. He, therefore, deemed the

appellant fit for duty, without restriction. Id. at 21-22. But, in the months that

followed, agency officials provided the IME psychiatrist with documentation of

the weapons safety incident and other concerns expressed by the appellant’s

colleagues, which prompted the IME psychiatrist to recommend additional

psychological and neurocognitive testing. IAF, Tab 10 at 30-31. 

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The neuropsychologist that conducted the aforementioned testing diagnosed

the appellant with a cognitive disorder, not otherwise specified. IAF, Tab 8

at 101-11. Among other things, he found that relevant documentation and test

results suggested that the appellant had “problem solving deficits that would

interfere with his ability to analyze information,” a memory that “appears to be

compromised,” and “significant difficulties in appropriately interacting with

[others] because of anger issues and other personality traits.” Id. at 105. The

neuropsychologist indicated that the appellant likely suffered from an organic

brain disease that impaired his decision making and judgment. Id. at 106. In

conclusion, he indicated that the appellant could not carry a government-issued

weapon or use proper judgment in law enforcement situations. Id. at 109-10. 

The appellant then sought out an exam with a psychologist of his choosing.

IAF, Tab 10 at 51-58. The appellant’s psychologist diagnosed him with an

unspecified neurocognitive disorder, and generally concluded that the appellant’s

work performance may be “hindered at times by impulsivity.” Id. at 57. He

separately described the appellant as potentially fit for duty, but did so with a

caveat. Id. at 58. Specifically, the appellant’s psychologist indicated that the

appellant had brain abnormalities that could be explained by either a degenerative

disease or by injuries the appellant recounted from his childhood. Id. If the latter

were the cause of those brain abnormalities, the psychologist suggested that the

appellant remained fit for duty because current deficits were pre-existing and

life-long, such that his ability to perform as a CBPO is essentially unchanged. Id.

Presented with these additional findings, the IME psychiatrist that had

previously deemed the appellant fit for duty amended his conclusions. IAF,

Tab 8 at 119-23. He determined that the appellant had a cognitive disorder 2 and

could not safely, efficiently, and reliably perform all the duties of his position.

Id. at 120-21. In particular, the IME psychiatrist concurred with the

2

 According to the IME psychiatrist, the differing diagnoses of cognitive disorder and

neurocognitive disorder simply reflect a change in terminology between the two most

recent Diagnostic and Statistical Manuals. IAF, Tab 8 at 120.

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neuropsychologist’s conclusion that the appellant could not carry a

government-issued weapon or use proper judgment in law enforcement situations.

Id.

Over the following months, the agency offered the appellant the option of

retiring, resigning, or requesting reassignment to a position for which he was

qualified. IAF, Tab 10 at 60-62, 71. Because the appellant failed to choose any

of those options, the agency proposed his removal for medical inability to

perform the essential duties of his position. Id. at 77-80. Among other things,

the proposal noted that the CBPO position required that he carry a firearm and

rapidly react to potential threats or physical attacks, i.e., law enforcement

situations. Id. at 78. Following that September 2016 proposal and the appellant’s

responses, the deciding official sustained the removal, effective April 2017. IAF,

Tab 8 at 51-56. This timely appeal followed. IAF, Tab 1. 

After holding the requested hearing, the administrative judge sustained the

appellant’s removal. ID at 1. Specifically, he found that the agency met its

burden of proving the charge, while the appellant failed to prove his claim of

harmful procedural error. ID at 2-11. The appellant has filed a petition for

review, in which his sole argument is that the agency failed to prove its charge.

Petition for Review (PFR) File, Tab 3. He presents no argument regarding the

penalty or the affirmative defense he raised below. Id. The agency has filed a

response. PFR File, Tab 5.

Below, the administrative judge and the parties agreed that the applicable

standard for assessing the propriety of the appellant’s removal was found at

5 C.F.R. § 339.206. That regulation generally prohibits removal of an employee

based solely on their medical history, while providing a limited exception for

employees in positions that are subject to medical standards if certain elements

are present. 5 C.F.R. § 339.206; see Haas v. Department of Homeland Security,

2022 MSPB 36, ¶ 11 (discussing the elements required for the exception provided

in section 339.206). The agency relied on section 339.206 in analyzing the

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charge, IAF, Tab 8 at 12-13, as did the appellant, IAF, Tab 20 at 7-8, Tab 32

at 10, and the administrative judge, IAF, Tab 28 at 4; ID at 2. 

Though not raised by either party on review, we find section 339.206

inapplicable. See 5 C.F.R. § 1201.115(e) (providing that, although the Board

normally will consider only issues raised by the parties on review, it reserves the

authority to consider any issue in an appeal before it). As further detailed below,

section 339.206 does not apply to this appeal because the agency did not remove

the appellant based solely on his medical history; rather, it removed the appellant

based on a current medical condition that rendered him unable to perform. 

Our recent decision in Haas guides our analysis in this case, as it involves

a similar fact pattern and a similar misapplication of 5 C.F.R. § 339.206. Like

the appellant in the instant appeal, the employee in Haas was a CBPO, removed

for medical inability to perform the essential functions of his position, stemming

from an existing mental health condition. Haas, 2022 M.S.P.R. 36, ¶¶ 2-8. On

review, we affirmed the removal. But in doing so, we revisited the Board’s

precedent concerning a medical inability to perform charge where the employee

occupied a position that was subject to medical standards, e.g., the position of

CBPO. Overruling a number of cases, including one the administrative judge

relied on in the instant appeal, Haas recognized that 5 C.F.R. § 339.206 should

not be universally applied. Id., ¶¶ 11-16. Rather, section 339.206 only applies to

removals that are “solely on the basis of medical history.” Id., ¶¶ 11-12.

Regardless of whether a position is subject to medical standards, if an

agency removes an employee for inability to perform because of a current

medical condition or impairment, the agency must prove either a nexus between

the employee’s medical condition and observed deficiencies in his performance or

conduct, or a high probability, given the nature of the work involved, that his

condition may result in injury to himself or others. Id., ¶¶ 15, 20. The Board has

otherwise described the standard as requiring that the agency establish that the

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appellant’s medical condition prevents him from being able to safely and

efficiently perform the core duties of his position. Id., ¶¶ 15, 20. 

Although the administrative judge rendered the initial decision in this

appeal before we issued Haas and, consequently, misapplied 5 C.F.R. § 339.206,

remand is unnecessary because the record is fully developed on the relevant

issues. ID at 2; Haas, 2022 MSPB 36, ¶ 20. As previously discussed, each of the

clinicians that evaluated the appellant diagnosed him with an existing mental

health condition, with existing limitations. . Most notably, two of those

clinicians specifically indicated that the appellant cannot carry a governmentissued weapon or use proper judgment in law enforcement situations, both of

which are required for his CBPO position. Compare IAF, Tab 8 at 109-10, 121-

22 (medical opinions regarding the appellant’s limitations), and Hearing

Transcript (HT) at 32-33, 80 (same), with IAF, Tab 10 at 82-90 (CBPO position

description), and Haas, 2022 MSPB 36, ¶¶ 22-23 (discussing the essential

functions of a CBPO). The third clinician broadly described the appellant as

having limitations such as impulsivity, without specifically addressing his job

requirements. IAF, Tab 10 at 57-58. Under these circumstances, where there is

no persuasive evidence to the contrary, we find that the agency met its burden of

proving that the appellant’s medical condition prevents him from being able to

safely and efficiently perform the core duties of his position. See, e.g., Haas,

2022 MSPB 36, ¶¶ 20-26 (sustaining the removal of a CBPO for inability to

perform the essential functions of his position where his bipolar disorder rendered

him unable to carry a firearm and exercise proper judgment in law enforcement

situations). 

The appellant’s posture throughout this appeal has not been to challenge

the veracity of clinicians’ diagnoses or general opinions about his condition.

Instead, his primary argument has been that their medical findings and other

evidence of record does not reflect the “significant risk of substantial harm”

element of 5 C.F.R. § 339.206. E.g., PFR File, Tab 3 at 5. In doing so, he goes

6
to great lengths discussing how high that standard is, and how the agency failed

to meet that standard in this case, given the uncertainty in predicting dangerous

behavior, as described by those who evaluated the appellant, as well as his history

of successful and non-violent performance. Id. at 7-21. But again, we find that

section 339.206 is inapplicable because the agency removed the appellant for

inability to perform based on his current medical condition and limitations. See

Haas, 2022 MSPB 36, ¶ 16 (recognizing that the determination of whether section

339.206 applies may well be outcome determinative in some cases involving

removal for inability to perform). 

Even construing his arguments more broadly, and applying the appropriate

standard, the appellant’s contentions remain unavailing. The appellant’s basic

assertion is that he has performed well in the past, and clinicians’ concern for his

ability to continue doing so is too speculative. We disagree. See Haas,

2022 MSPB 36, ¶ 19 (rejecting arguments that past successful performance

outweighed current medical impressions). Although the appellant may have

performed successfully in the past, his more recent performance prompted

medical evaluations that revealed a cognitive disorder—one which clinicians

described as preventing the appellant from safely and efficiently carrying a

firearm and appropriately responding to law enforcement situations, i.e.,

performing the core duties of his position. E.g., IAF, Tab 8 at 101-10, 119-21.

The administrative judge found those conclusions persuasive, ID at 7-8, as do we.

The agency has, therefore, met its burden of proving its charge of medical

inability to perform, and removal is an appropriate penalty.

NOTICE OF APPEAL RIGHTS3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

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.

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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: 

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

8
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. 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. 

9
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

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

10
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

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

any attorney will accept representation in a given case. 

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. 

11
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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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