In a decision issued July 3, 2008, the full Merit Systems Protection Board reversed the removal of its employee George Bruton. This case is interesting for a couple reasons – but first, the facts. (You can read the full decision by clicking on this text).
Mr. Bruton was a VA employee. As with most Federal employees, his problems started when he was injured on the job in 2002. In 2005, Mr. Bruton’s doctor restricted him to 3 hours a day of work. The Office of Workers Compensation directed that Mr. Bruton get a second opinion and, because the second opinion was different from that of his own doctor, Mr. Bruton was required to get a referee opinion. The referee opinion determined that Mr. Bruton could work an 8 hour day.
Mr. Bruton was directed to return to work, and he did, but only worked a 3 hour day, consistent with his doctor’s restrictions. After about 3 months, the VA removed Mr. Bruton.
The Administrative Judge in Mr. Bruton’s MSPB appeal sustained the Agency’s removal action in November/December 2006. In February 2008, Mr. Bruton filed a Petition for Review before the Board, the Board granted the appeal, and reversed the removal action.
There is one interesting point about this appeal. Typically, a Federal employee only has 30 days from the date of an Initial MSPB Decision to file their appeal to the full Board in Washington, D.C. Typically, the Full Board is not very lenient when appellants miss their filing deadlines. Pines Federal , routinely informs potential new clients of the difficulty in getting a late PFR to be heard by the Full Board, and strongly encourages that appellants get their appeal or petition for review postmarked and sent certified mail as soon as possible within their 30 days deadline.
In this case, the employee filed his appeal nearly 14 months later. The Board granted the appeal based on the fact that Mr. Bruton had new evidence that was not available at the time that the decision was issued.
What was the new evidence? A decision of the Employees’ Compensation Appeals Board (ECAB), that determined in January/February 2008, that the earlier decision of the OWCP was in error, and reinstating Mr. Bruton’s benefits effective some time in 2006.
Here’s the standard for filing an untimely appeal when there is new evidence that may inform the outcome of the case: “the discovery of new evidence may establish good cause for the untimely filing of a petition for review if the evidence was not readily available before the close of the record below, and if it is of sufficient weight to warrant an outcome different from that of the initial decision.” Satterfield v. U.S. Postal Service, 80 M.S.P.R. 132, ¶ 5 (1998) (quoting Boyd-Casey v. Department of Veterans Affairs, 62 M.S.P.R. 530, 532 (1994)).
No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.
It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have think you may have new evidence that would allow the full MSPB to reconsider a past decision of the MSPB, contact an MSPB attorney at the Law Firm of Eric L. Pines, PLLC, to schedule a telephone consultation.
Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative.
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