UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANTHONY C. SCOTT,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBERS

DE-4324-14-0611-I-1

DE-0752-13-1680-I-2

DATE: September 21, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Anthony C. Scott, Sierra Vista, Arizona, pro se.

Richard C. Wolfe, Esquire, and Dave L. Miller, Fort Huachuca, Arizona, 

for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

denied his request for corrective action under the Uniformed Services 

Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C. 

§§ 4301-4333) (USERRA), affirmed the agency’s chapter 75 removal action, and

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

dismissed for lack of jurisdiction the appellant’s request for corrective action 

under the Federal Employees’ Compensation Act (FECA). Generally, we grant 

petitions such as this one only when: 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 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 following facts are undisputed. The appellant was an Information 

Technology (IT) Specialist with the agency, and he took leave without pay 

(LWOP) on May 20, 2009, to perform uniformed service in the U.S. Army 

Reserves. MSPB Docket No. DE-4324-14-0611-I-1, Initial Appeal File 

(0611 IAF), Tab 34, Initial Decision (ID) at 4. On December 10, 2012, the 

appellant returned to duty in his IT Specialist position, after his medical 

retirement from the U.S. Army Reserves on December 9, 2012, because of a

permanent physical disability. ID at 5; 0611 IAF, Tab 6 at 15, 17. On May 20, 

2013, the agency proposed to remove the appellant for medical inability to 

perform his job, citing his submission of an April 3, 2013 letter from his 

physician stating that the appellant could not continue employment. ID at 5; 

MSPB Docket No. DE-0752-13-1680-I-1, Initial Appeal File (1680 IAF), Tab 5 

at 95. In the letter, the appellant’s physician referred to the appellant’s “severe 
3

injuries/illness following his mobilization and medical retirement from active 

duty” and stated that the appellant had decided to apply for a “Civil Service 

Disability packet,” which the physician described as “in the best interest of the 

patient.” 1680 IAF, Tab 5 at 98. The appellant’s representative submitted a 

written response opposing the removal action, and the deciding official for the 

agency sustained the appellant’s removal effective July 16, 2013. 1680 IAF, 

Tab 1 at 16, Tab 5 at 20, 33. 

¶3 The appellant filed an appeal with the Board and raised several affirmative 

defenses to his removal. 2

 1680 IAF, Tab 1. Specifically, he alleged that the 

agency’s removal action: (1) constituted reprisal for his disclosures to the 

Inspector General; (2) was not in accordance with law because the agency

violated Executive Order 5396 by not allowing him to remain in an LWOP status 

“while undergoing medical treatment” and/or “pending his Disability Retirement 

Application”; (3) constituted disability discrimination; and (4) violated his rights 

under USERRA. 0611 IAF, Tab 23 at 3. The appellant also alleged that the 

agency violated his rights under FECA, which the administrative judge 

considered both as an independent claim and as an affirmative defense to the 

agency’s removal action. Id. at 3-5. 

¶4 The administrative judge issued an order informing the appellant of the 

jurisdictional criteria and burdens of proof applicable to the issues he raised on 

appeal. 0611 IAF, Tab 23 at 3-30. The administrative judge also joined the 

appellant’s chapter 75 appeal with his separately docketed USERRA appeal for 

adjudication. 0611 IAF, Tabs 22, 23 at 2. After considering the pleadings 

 2 The administrative judge granted the appellant’s request to dismiss the initial appeal 

without prejudice to refiling so that the appellant could obtain representation. See

1680 IAF, Tab 26. The appellant subsequently obtained new representation and refiled 

his removal appeal on June 12, 2014. MSPB Docket No. DE-0752-13-1680-I-2, Refiled 

Appeal File (RAF), Tab 1. The administrative judge joined the refiled appeal for 

adjudication with the appellant’s separately docketed USERRA appeal under MSPB 

Docket No. DE-4324-14-0611-I-1. RAF, Tab 21; ID at 3-4. 
4

submitted by both parties in the joined appeal, the administrative judge found that 

the Board has jurisdiction over the appeal and issued an initial decision affirming 

the appellant’s removal based on the written record, because the appellant 

withdrew his request for hearing. ID at 2, 4; 0611 IAF, Tab 23 at 1. 

¶5 Regarding the appellant’s USERRA appeal, the administrative judge denied 

the appellant’s request for corrective action. ID at 10. He found that the 

appellant failed to prove that the agency violated his USERRA restoration rights 

when he returned from military service on December 10, 2012, by: (1) failing to 

assign him to his premobilization duties; (2) failing to accord him a process by 

which his medical abilities would be assessed; and (3) forcing him to return to the 

rolls immediately instead of giving him 90 days to return to duty. ID at 6, 10. 

The administrative judge determined that the agency afforded the appellant proper 

reemployment rights and that he voluntarily returned to work on January 2, 2013. 

ID at 10. The administrative judge also considered whether the appellant raised a 

USERRA discrimination claim and found no evidence of discriminatory animus 

by the agency and no evidence that the appellant’s military service was a 

substantial or motivating factor in his removal. ID at 17. 

¶6 As to the appellant’s chapter 75 removal appeal, the administrative judge 

found that the agency proved its charge of medical inability to perform and that 

there was a nexus between the charge and the efficiency of the service. 

ID at 11-12. The administrative judge further found that the appellant failed to 

prove his affirmative defenses by preponderant evidence and that the removal 

penalty did not exceed the tolerable limits of reasonableness because the medical 

evidence clearly established a medical inability to perform without a foreseeable 

end to the appellant’s incapacity. ID at 22-23. 

¶7 The administrative judge also found that the appellant failed to prove his 

not in accordance with law affirmative defense based on his allegation that the 

agency violated Executive Order 5396. ID at 12-14. The administrative judge 

further found that the appellant failed to establish his whistleblowing affirmative 
5

defense. ID at 14-16. Specifically, the administrative judge found that, although 

the appellant failed to prove that he made a protected disclosure under 5 U.S.C. 

§ 2302(b)(8)(A), he threatened to make a disclosure to an Inspector General, 

which was protected under 5 U.S.C. § 2302(b)(9)(C). ID at 16. The 

administrative judge also found that the appellant established that the threatened 

disclosure was a contributing factor in the proposed removal action, but that the 

agency proved by clear and convincing evidence that it would have removed the 

appellant in the absence of his threatened disclosure. ID at 16-17. In analyzing 

this issue, the administrative judge acknowledged that the proposing official had 

a motive to retaliate against the appellant but found that the appellant’s medical 

inability to perform his job was an overwhelmingly strong, nonretaliatory reason 

for proposing the appellant’s removal. ID at 16. The administrative judge further 

found that the appellant failed to prove his affirmative defense of disability 

discrimination based on a failure to accommodate, disparate treatment, or 

disparate impact. ID at 18-19. Concerning the appellant’s restoration claim 

under FECA, the administrative judge found, inter alia, that the appellant had an 

Office of Workers’ Compensation Programs (OWCP) claim but that there was no 

evidence that he had “recovered sufficiently” to resume working. ID at 20. 

Based on this finding, the administrative judge found that the appellant failed to 

meet his burden of proving his affirmative defense to the removal action based on 

an alleged denial of restoration under FECA or establish that the Board has 

jurisdiction over his FECA claim. 3

 ID at 20-21. 

 3 The appellant has not challenged, and we therefore discern no reason to disturb, the 

administrative judge’s findings that the appellant failed to establish: (1) his not in 

accordance with law affirmative defense based on his allegation that the agency 

violated Executive Order 5396; (2) his whistleblowing retaliation affirmative defense; 

(3) his disability discrimination affirmative defense; (4) his claim under FECA as an 

affirmative defense; and (5) that the Board has jurisdiction over his FECA claim as a 

separate action.
6

¶8 The appellant filed a timely petition for review of the initial decision. 

Petition for Review (PFR) File, Tab 1. On review, the appellant appears to argue 

that: (1) the deciding official stressed his consideration of the Douglas factors in 

determining the removal penalty although those factors do not apply in his case; 

(2) he proved his affirmative defense of USERRA discrimination; and (3) his 

removal was not in accordance with law because: (i) the deciding official refused 

to hold a hearing and prevented the appellant’s representative from making oral 

statements, and (ii) the agency refused to assist him in processing his disability 

retirement application and instructed him to return to work, although the agency 

“was authorized to allow [him] to apply for [Office of Personnel Management 

(OPM)] disability in September 2012.” 4

 PFR File, Tab 1 at 3. For the reasons 

stated below, we find the appellant’s arguments on review do not affect the 

outcome of this appeal.

¶9 Generally, removal for physical inability to perform the essential functions 

of a position promotes the efficiency of the service. See Clemens v. Department 

of the Army, 120 M.S.P.R. 616, ¶¶ 9, 18 (2014) (involving a removal for physical 

inability to perform from a position not subject to medical evaluation programs). 

The appellant does not dispute the administrative judge’s findings that the agency 

proved by preponderant evidence that he was physically unable to perform the 

duties of his position, that there was a nexus between his inability to perform and 

the accomplishment of the agency’s mission, and that his removal promoted the 

efficiency of the service. Rather, he asserts on review that the deciding official 

 4 The appellant also argued on review that his former attorney representative notified 

him in November 2013 that she never agreed to represent the appellant before the 

Board, and he asserted that the agency never gave him a certificate of service for all of 

the documents sent to his former attorney. He made a similar argument in his initial 

appeal, which the administrative judge dismissed without prejudice so that the appellant 

could obtain representation. 0611 IAF, Tab 26 at 2-3. The appellant subsequently 

obtained new representation and refiled his removal appeal on June 12, 2014. RAF, 

Tab 1. The appellant, who is acting pro se on review, does not explain how his 

problems with his former attorney affected the outcome of his appeal and his argument 

presents no basis for disturbing the initial decision. 
7

considered the Douglas factors in his decision, and those factors do not apply 

here. PFR File, Tab 1 at 3. 

¶10 We agree that the deciding official erred by considering the Douglas factors 

in his removal decision; however, the appellant does not explain how this error 

adversely affected the outcome of his appeal. See Brown v. Department of the 

Interior, 121 M.S.P.R. 205, ¶ 18 (2014) (finding that the analysis for mitigating 

the penalty under Douglas does not apply to nondisciplinary actions based on a 

physical inability to perform). As noted by the administrative judge, the standard 

in determining the penalty for a removal based on physical inability to perform is 

whether the penalty of removal exceeds “the tolerable limits of reasonableness.” 

ID at 22; Marshall-Carter v. Department of Veterans Affairs, 94 M.S.P.R. 518, 

¶ 14 (2003), aff’d, 122 F. App’x 513 (Fed. Cir. 2005); ID at 22. The 

administrative judge found that the agency’s removal penalty did not exceed the 

tolerable limits of reasonableness because the medical evidence clearly 

established that the appellant was physically unable to perform without a 

foreseeable end to his incapacity. ID at 22-23. The appellant submits no new 

evidence or argument on review showing that the agency’s decision to remove 

him, based on his undisputed medical inability to perform his duties, exceeded the 

tolerable limits of reasonableness. Although the appellant reasserts his 

affirmative defense of USERRA discrimination by alleging that the agency 

created a “hostile and toxic work environment” to punish him for going on active 

duty, he fails to identify any evidence in the record that supports this allegation. 

PFR File, Tab 1; see ID at 17.

¶11 The appellant also argues that the deciding official refused to hold a hearing 

before issuing a decision on his proposed removal and that the agency prevented 

his representative from making oral statements in opposition to the notice of 

proposed removal. The appellant may be attempting to show that his removal was 

not in accordance with law; however, the appellant fails to identify any law, rule, 

or regulation that required a hearing on the proposed removal action. 
8

See 5 U.S.C. § 7513(c). Pursuant to 5 U.S.C. § 7513(b)(2), an employee is 

entitled to a reasonable time to submit an oral and written answer to an adverse 

action proposed by an agency, and the agency informed the appellant of his right 

to respond in the proposed removal notice. 0611 IAF, Tab 5 at 42. Here, 

however, the record reflects that the appellant’s representative submitted a 

written answer to the agency’s notice of proposed removal, and the appellant 

identifies no evidence in the record showing that the agency prevented him from 

submitting an oral answer to the proposal notice. 0611 IAF, Tab 1 at 16-24. 

¶12 Next, the appellant appears to argue on review that his removal was not in 

accordance with law because the agency refused to assist him in processing his 

disability retirement application and ordered him back to work. PFR File, Tab 1 

at 3. He argues that an OPM regulation allows employees, disabled because of 

active military duty, to apply immediately for disability and that the agency has a 

policy of immediate retirement for wounded warriors. Id. However, the 

appellant identifies no evidence in the record to support his claim that the agency 

refused to allow him to apply for disability retirement or that the agency failed to 

assist him in processing his disability retirement application. Moreover, although 

Federal regulations require agencies to file disability retirement applications for 

disabled employees under very limited circumstances, those circumstances are not 

present in this appeal. See 5 C.F.R. §§ 831.1205, 844.202. 

¶13 Because the appellant’s arguments on review present no reason to disturb 

the initial decision denying the appellant’s request for corrective action under 

USERRA, affirming the agency’s removal action under chapter 75, and 

dismissing the appellant’s request for corrective action under FECA, we deny his 

petition for review.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision. There 

are several options for further review set forth in the paragraphs below. You may 
9

choose only one of these options, and once you elect to pursue one of the avenues 

of review set forth below, you may be precluded from pursuing any other avenue 

of review. 

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination claims 

by the Equal Employment Opportunity Commission (EEOC). See Title 5 of the 

United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit 

your request 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 your request 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, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 

the district court no later than 30 calendar days after your receipt of this order. If 
10

you have a representative in this case, and your representative receives this order 

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

days after receipt by your representative. If you choose to file, be very careful to 

file on time. 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.

Other Claims: Judicial Review

If you do not want to request review of this final decision concerning your 

discrimination claims, but you do want to request review of the Board’s decision 

without regard to your discrimination claims, you may request review of this final 

decision on the other issues in your appeal 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 

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 described in 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 by 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.
11

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 

at http://www.mspb.gov/probono for information regarding 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board