The cast is Jaliwala v Dept Homeland Security (CAFC No. 2021-1523 (nonprecedential) 9/10/2021). Mr. Jaliwala applied for a criminal investigator position posted by the Department of Homeland Security (DHS), Immigration and Customs Enforcement. The announcement specifically said that the chosen applicant may be required to meet a physical fitness test in the future in accordance with agency requirements. Mr. Jaliwala was hired and began his basic training. In the midst of his training, ICE imposed new Personal Fitness Test (PFT) requirements that anyone in the kind of position that he held would have to meet in order to keep their jobs. Mr. Jaliwala passed all of the requirements except the requirement to run 1.5 miles within 14 minutes 25 seconds. His time was more than two minutes over the requirement of the PFT. (Opinion p. 2)
After failing the PFT, Jaliwala washed out of the basic training and was sent home. He sought a waiver from the PFT in accordance with Office of Personnel Management (OPM) procedures. This required that he “provide sufficient evidence that [he] can perform the essential duties of the position without endangering the health and safety of [himself] or others.” (P. 3)
When Jaliwala’s waiver request made it to the Training Review Board, it recommended against granting the waiver; however the Board recommended that Jaliwala be given another chance to pass the test. The reviewing ICE official accepted the Board’s recommendation. However, when Jaliwala took the PFT a second time, he still fell more than 2 minutes short of the time required to make the 1.5 mile run. (P. 3)
At this point, the agency proposed to remove him for failure to meet the required PFT. He was offered a third try at passing the PFT, but Jaliwala argued that the agency should have granted his waiver request since he had previously held a law enforcement position and thus was fully qualified to keep his job. The agency ordered up his removal and Jaliwala appealed to the Merit Systems Protection Board (MSPB).
He argued to the MSPB that the agency had committed harmful procedural error and failed to follow required procedures in denying his waiver request. While MSPB found procedural error in the waiver process, it concluded that it was not harmful error. The agency had concluded that Jaliwala did not present evidence showing that he “would be able…to engage in a foot pursuit of a fleeing individual or in response to a dangerous situation, or assist another agent in a shooting incident, which are essential duties.” (P. 5)
The MSPB concluded that had the procedural error not occurred, it was not likely to have resulted in a different conclusion about Jaliwala’s removal. In other words, he had not shown it was harmful error that would have affected the outcome of the Review Board’s proceedings. (P. 6)
As for his argument that the procedures followed in reviewing his waiver request did not follow the legal requirements, the MSPB had concluded that it had no jurisdiction to review the waiver process or decision. The court agrees with MSPB’s conclusions.
Pointing out that Mr. Jaliwala had “numerous opportunities” to meet the PFT requirements, the court notes that his “dissatisfaction appears to find its source in his disagreement with the agency that running 1.5 miles in under 14 minutes and 25 seconds is a necessary requirement to adequately perform the job.” (P. 7) The MSPB and now the appeals court made clear that this kind of judgement is reserved to the agency not to be second guessed on appeal.