13 Years and Still Filing Appeals to Recover a Lost Federal Job
By Susan Smith
Wednesday, May 23, 2007
When an appeals court decision starts out this way, the petitioner should know right away that he is not going to like the bottom line:
“This is yet another chapter in the protracted saga of the petitioner Ronald L. Green’s unsuccessful attempt to require the United States Postal Service…to rehire him, following his alleged recovery from the disability that led to the termination of his employment. The story includes three trips to this court [the Federal Circuit Court of Appeals], one to the Ninth Circuit and several to the Merit Systems Protection Board…and his filing of two district court suits against the Postal Service.” (Green v. United States Postal Service, C.A.F.C. No. 2006-3425 (nonprecedential), 5/11/07; Opinion p. 1)
This case dates back more than 13 years when Green was separated from his USPS job because he was disabled to the extent he could not perform his duties. Green launched a fight to get his job back, insisting that he had recovered and should be rehired. The Office of Workers’ Compensation Programs at some point determined that Green’s disability had ended and terminated his disability payments. However, the agency continued to question whether Green was sufficiently recovered from his depression to be rehired. (Opinion pp. 2-3)
The current court case involves Green’s latest attempt to get the MSPB to order the Postal Service to rehire him. The Board ruled that Green’s latest appeal was untimely and barred by the doctrine of res judicata (meaning, it has already been legally decided). (Opinion p. 3) In short, the court agreed with the Board.
In a remarkable display of patience, the appeals court addressed a few new arguments raised by Green in this latest case. He invoked the Uniform Services Employment Rights Act of 1998 that prohibits discrimination by an agency against a veteran’s military status. The court had this to say: “Green has shown nothing that even suggests, let alone establishes, that his military service (completed more than twenty years earlier) had anything to do with the Postal Service’s refusal to rehire him.” (p. 4)
As for Green’s argument citing the Veterans Preference Act, the court points out that, while Green had timely invoked his right to request reemployment by the agency within 30 days of his disability compensation benefits ceasing, he had failed to follow through on his request because he failed to appear for an agency-scheduled psychiatric exam. Therefore, the Postal Service properly had stopped considering Green’s application. (p. 5)
Green also argued that the Postal Service did not have the authority to question whether he could be rehired—that the decision of OWCP finding that he was no longer disabled and ending his disability compensation was binding on USPS. Not so, ruled the court. While the OWCP decision is binding on the question whether Green could receive disability compensation, the Postal Service could nevertheless determine “whether a disabled former employee whose disability payments have been terminated is qualified to return to work.” (pp. 5-6)
© 2008 FedSmith Inc. All rights reserved. This article may not be reproduced without express written consent of FedSmith Inc.
Readers' Comments
Posted: June 19, 2007 12:50 PM
Posted: May 24, 2007 12:27 PM
Posted: May 24, 2007 9:12 AM
View All Comments »