Johnson v. Orr, 83-2306
| Decision Date | 08 November 1984 |
| Docket Number | No. 83-2306,83-2306 |
| Parties | 36 Fair Empl.Prac.Cas. 515, 38 Empl. Prac. Dec. P 35,725, 1 A.D. Cases 639 Frank JOHNSON, Plaintiff-Appellant, v. Verne ORR, Secretary of the United States Department of the Air Force, and the United States Department of the Air Force, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Steven M. Angel, Oklahoma City, Okl., for plaintiff-appellant.
Robert D. Dennis, Asst. U.S. Atty., W.D. Okl., Oklahoma City, Okl. (William S. Price, U.S. Atty., W.D. Okl., Oklahoma City, Okl., and David P. Buck, Lieutenant Colonel, USAF, General Litigation Div. of the Judge Advocate General, Washington, D.C., were with him on brief), for defendants-appellees.
Before LOGAN, BREITENSTEIN and McWILLIAMS, Circuit Judges.
This is a suit by plaintiff-appellant Johnson against the Secretary of the United States Department of the Air Force and the United States Department of the Air Force. It arises from the placement of plaintiff by defendants on a seven month enforced leave for a medical disability. The district court sustained the defendants' motion to dismiss. Plaintiff appeals asserting violation of certain federal statutes. We affirm.
Plaintiff has been employed as a warehouseman at Tinker Air Base since 1966. The position required him to be able to lift 75 pounds. While working as a warehouseman, he incurred a back injury on May 10, 1971. In June, 1972, February, 1975, and July, 1977, he was examined by three different private physicians to determine his fitness-for-duty. All imposed weight lifting restrictions of less than 75 pounds. On his last examination he was restricted to lifting objects of 25 pounds or less and from prolonged walking or standing. A few weeks later the weight restriction was raised to 45 pounds and the walking and standing restrictions were removed.
In July, 1978, the Air Force implemented a new policy for employees working under medical restrictions. Those having medical restrictions were ordered to have a fitness-for-duty examination. If the medical restrictions still persisted, the employee was to be transferred to a 60-day detail position in which the restrictions did not prevent the employee from performing his duties. This reassignment was offered in lieu of separation. If at the end of such 60 days the restrictions were not lifted or the employees reassigned, he was to be placed on enforced leave. This was to enable the employee to initiate disability retirement proceedings and to give the agency an opportunity to find a reassignment position acceptable to the employee.
Plaintiff was placed on a 60-day detail as a clerk, effective February 26, 1979. After his accrued annual and sick leave were exhausted, he was placed on leave without pay on May 15, 1979. On June 1, 1979, he applied for disability retirement. On July 12, 1979, he was examined by a private physician who found that he had an unstable lumbo-sacral condition which required minor lifting limitations and that if the minor restrictions were applied, he was not disabled. On June 25, 1979, he was offered reassignment to supply clerk which he declined. On October 18, 1979, a notice of proposed removal was issued for plaintiff. On November 7, 1979, the Office of Personnel Management denied his application for disability retirement because he was not totally disabled.
On November 15, 1979, plaintiff's private physician had a consultation with two government physicians which concluded in the government physicians recommending that plaintiff's lifting restrictions be raised to 75 pounds. On November 26, 1979, the Civilian Personnel Office cancelled the notice of separation and the plaintiff returned to work.
Plaintiff appealed the action placing him on enforced leave to the Dallas Field Office of the Merit Systems Protection Board, MSPB. This appeal did not allege handicap discrimination. The Dallas Field Office dismissed the appeal for lack of jurisdiction. The MSPB vacated this decision on July 1, 1981, and remanded the case to the Dallas Field Office to determine if plaintiff's enforced leave was an adverse action under 5 U.S.C. Sec. 7512. 7 MSPB 3.
The Dallas Field Office conducted a hearing on September 15-16, 1981 at which the issue of handicap discrimination was raised for the first time. The Dallas Field Office determined that an enforced leave was an adverse action only where the employee established that he is "ready, willing and able" to perform work at the time of enforced leave. As plaintiff was not able to perform his duties at the time of the enforced leave, the action was not appealable to the MSPB. In addition, the Dallas Field Office concluded that the MSPB lacked jurisdiction over plaintiff's handicap discrimination claim because there was no appealable adverse action. The MSPB affirmed the decision of the Dallas Field Office. 12 MSPB 180.
Plaintiff then filed an action in federal district court challenging the MSPB's decision dismissing the appeal. The district court upheld the MSPB's determination that it had no jurisdiction. Plaintiff appeals from the judgment of the district court seeking wages and benefits lost during the period of enforced leave. He first argues that his placement on enforced leave was a suspension under 5 U.S.C. Sec. 7512 entitling him to certain procedural rights which he did not receive.
Section 7512 lists those actions over which MSPB has jurisdiction to include a suspension for more than 14 days. He also argues that he was entitled to certain procedural rights such as notice and an opportunity to be heard under Sec. 7513. Under 5 C.F.R. Sec. 1201.56(a)(2), plaintiff must prove there is jurisdiction. Under 5 U.S.C. Sec. 7703(c), a court may not set aside a decision of MSPB unless it is found to be (1) arbitrary or capricious, (2) not in accordance with procedural requirements, or (3) not supported by substantial evidence. Vigil v. Post Office Department of the United States, 10 Cir., 406 F.2d 921, 924.
In Mosely v. Department of the Navy, 4 MSPB 220, the MSPB established three criteria which must be met before an enforced leave is considered a "suspension." First, the employee must have been placed on enforced leave without his consent. Second, the employee must have been ready, willing and able to work during his period of leave. Third, the enforced leave must have been used in a personal disciplinary situation.
The MSPB found that plaintiff did not meet either the second or third Mosely criteria. It found that plaintiff was physically unable to perform all the duties of his position during the period of enforced leave and that, consequently, he was not "able" under the second Mosely criteria. R. Vol. II, p. 301-302. In addition, it found that the enforced leave action was not taken in a personal disciplinary proceeding, but rather was taken because of the medical restrictions placed on plaintiff. Applying the standards of Vigil, the district court affirmed the MSPB's decision that it was without jurisdiction.
Plaintiff argues that the standard the MSPB used in determining whether he was ready, willing and able to work was incorrect. Rather than use the test of whether an employee can perform all of his duties, the plaintiff would have the court impose on MSPB the test of whether the employee can perform substantially all of his duties. Plaintiff cites United States v. Wickersham, 201 U.S. 390, 26 S.Ct. 469, 50 L.Ed. 798, and its progeny for the assertion that only an employee who was totally unable to perform his work was considered not "ready, willing and able to work."
Plaintiff's interpretation of these cases is incorrect. The Dallas Field Office said, R. Vol. II, p. 261:
The only case that utilized plaintiff's proposed standard is Piccone v. United States, 407 F.2d 866, 186 Ct.Cl. 752. The MSPB correctly distinguishes Piccone from the case at bar, saying, R. Vol. II, p. 302:
The Supreme Court has said, Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616, quoting Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136:
"To sustain the [agency's] application of [a] statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question risen in the first instance in judicial proceedings."
The Supreme Court has also said, Miller v. Youakim, 440 U.S. 125, 145 n. 25, 99 S.Ct. 957, 969 n. 25, 59 L.Ed.2d 194, quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371, footnote omitted:
"... the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong."
The standard adopted by MSPB in order to determine whether an enforced leave is a...
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