Miller v. Austin

Filing 36

MEMORANDUM (Order to follow as separate docket entry) re 17 Amended Complaint filed by Robert Lance Miller. Signed by Honorable Jennifer P. Wilson on 3/12/2025. (ve)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT LANCE MILLER,
Plaintiff,
v.
PETE HEGSETH,1
Secretary, United States Department of
Defense
Defendant.

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Civil No. 1:23-CV-01461

Judge Jennifer P. Wilson

MEMORANDUM
Before the court is an appeal from a decision of the Merit Systems
Protection Board (“MSPB” or “the Board”) filed by Plaintiff Robert Lance Miller
(“Miller”) challenging the MSPB’s decision affirming an administrative judge’s
decision affirming the Department of Defense’s decision to remove Miller from
employment as a police officer employed by the Pentagon Police Directorate,
Pentagon Force Protection Agency (“PFPA”). (Doc. 17.) The PFPA removed
Miller from employment as a police officer because he failed to meet the agency’s
medical standards on May 14, 2014. (Doc. 18, pp. 9–17.)2 An administrative
judge affirmed that decision on October 27, 2016. (Doc. 22, pp. 533–63.) The
MSPB affirmed the administrative judge’s decision on August 2, 2023. (Id. at

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Pete Hegseth was sworn in as the Secretary of Defense on January 25, 2025. The court
substitutes him as a party pursuant to Fed. R. Civ. P. 25(d).
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For ease of reference, the court uses the page numbers contained in the CM/ECF header.
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655–77.) Miller now seeks this court’s review. For the reasons that follow, the
appeal from the MSPB’s decision will be denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY3
Plaintiff Robert Miller was employed by the PFPA at Raven Rock Mountain
Complex in Adams County, Pennsylvania as a police officer. (Doc. 26, p. 2; Doc.
31, p. 7.) Miller suffered a knee injury while performing a work-mandated
physical fitness test on November 2, 2011. (Doc. 18, p. 150.) Miller eventually
had surgery to address this injury. (Id. at 151–52.) During this time period, Miller
applied for workman’s compensation with the Office of Workman Compensation
Programs (“OWCP”) based on this injury. (Doc. 19, p. 412.)
After recovering from his surgery and receiving treatment, Miller was
cleared to return to full duty by the PFPA on March 5, 2012. (Doc. 18, p. 157.)
Throughout the summer and fall of 2012, Miller presented for an independent
medical examination, as required by OWCP, as well as completing and passing the
annual medical examination required by the PFPA. (Doc. 18, pp. 158, 162–86;
Doc. 19, pp. 64–66.)
On October 9, 2012, OWCP awarded Miller workman’s compensation for
the period of June 25, 2012, through March 14, 2013. (Doc. 19, pp. 435–37.)

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The court has only included those facts which are necessary to resolve the instant appeal. This
is not a conclusive determination of relevant facts, simply the facts necessary to provide context
for the instant appeal.
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OWCP notified the PFPA that Miller was not medically able to do his job duties
and the PFPA placed Miller in medically not cleared status and transferred to light
duty. (Doc. 18, p. 169.) Miller was evaluated by PFPA’s medical review officer
on October 26, 2012. (Id. at 170.) On November 9, 2012, the PFPA’s medical
review board reviewed Miller’s case and concluded he did not meet the agency’s
musculoskeletal system standard. (Id. at 134.) The PFPA notified Miller of this
decision on January 7, 2013, which he received on January 23, 2013. (Id.)
On March 26, 2013, Miller was evaluated by Dr. Draper relating to his
OWCP claim. (Id. at 185–89.) Based on this evaluation, on April 1, 2013, the
OWCP claims examiner stated that “the claimant is cleared for unrestricted full
duty.” (Id. at 183.) This examination was submitted to the PFPA medical review
board, which reconsidered Miller’s case, and again decided that Miller failed to
meet the PFPA’s musculoskeletal system standard. (Id. at 134.) The PFPA tried to
find a reasonable accommodation, however, the PFPA ultimately notified Miller of
its intent to remove him from his position for failure to meet medical standards.
(Id. at 100–03.) The PFPA issued a final decision removing Miller from his
employment on May 13, 2014. (Id. at 9–12.)
On June 16, 2014, Miller timely appealed the PFPA’s decision, challenging
the merits of his removal for failure to meet medical standards and raising the
affirmative defense of disability discrimination. (Id. at 2–7.) After over two years
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of litigation and a hearing before an administrative law judge, Honorable Michael
T. Rudisill, Administrative Law Judge for the Merit Systems Protection Board, a
decision was issued affirming the agencies’ action on October 27, 2015. (Doc. 22,
pp. 533–63.) Judge Rudisill held that the PFPA had “presented competent and
persuasive evidence in support of its non-disciplinary removal charge.” (Id. at
540.) Judge Rudisill specifically disagreed with Miller’s arguments that he could
perform the duties of his position, relying on the evidence of successful physical
and medical examinations during May through October 2012. (Id. at 541–53.)
Judge Rudisill then discussed the differing medical opinions and the weight he
gave to each opinion, giving greater weight to the medical opinions that based their
conclusions on the position description for a PFPA police officer or knowledge of
the working environment, and lesser weight to the opinions that relied on Miller’s
description of the working environment. (Id. at 543–45.)
Judge Rudisill also held that Miller had not met his burden of proving an
affirmative defense that he was discriminated against due to a disability because
the record did not show that Miller was either an individual with a disability or that
the PFPA regarded him as disabled, as required by applicable regulations. (Id. at
548–51.) Additionally, regarding further affirmative defenses, Judge Rudisill held
that Miller had not shown a disparate treatment affirmative defense because there
was no evidence in the record that “his removal was the result of discrimination,
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but [he] merely made a bald assertion.” (Id. at 552.) On Miller’s final affirmative
defense, Judge Rudisill held that the PFPA did not violate Miller’s due process
right because the agency official did not merely “rubber stamp” a proposal of
removal notice, but the agency official understood he had authority to impose a
lesser sanction. (Id. at 553, 554.)
Finally, Judge Rudisill considered Miller’s argument that he was removed
from his position in violation of his restoration rights.4 (Id. at 554.) Judge Rudisill
specifically addressed, and rejected, Miller’s argument that “a determination of the
Office of Worker’s Compensation Programs (“OWCP”) that an individual is fully
recovered from a compensable injury is binding on the [Merit Systems Protection]
Board.” (Id. at 555.) Judge Rudisill held that a determination of the OWCP is not
binding here, where the “employee is removed based solely on his failure to meet
agency medical standards[.]” (Id.) Specifically, Judge Rudisill noted “[t]he
agency did not remove [Miller] in 2014 because of his compensable knee injury
but rather because of the subsequently diagnosed osteoarthritis which was deemed
recurrent, and, as a consequence, a violation of the agency’s musculoskeletal
system medical standard.” (Id.)
The Federal Employees Compensation Act (“FECA”) “provides a comprehensive remedy to a
federal employee for injuries ‘sustained while in the performance of his duty.’” Heilman v.
United States, 731 F.2d 1004, 1109 (3d Cir. 1984)(citing 5 U.S.C. § 8102). The FECA contains
various protections for employees who are injured while at work, including “the right to resume
his former or an equivalent position” if the injury is overcome within one year. 5 U.S.C. § 8151.
This is commonly called an employee’s “restoration right.”
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On November 29, 2016, Miller filed a petition for review with the MSPB.
(Id. at 564.) On August 2, 2023, the MSPB issued its final order, denying the
petition for review, modifying the analysis of whether the agency proved the
charge against Miller and the analysis of whether Miller proved his affirmative
defense of disability discrimination and restoration right, and ultimately affirming
the initial decision. (Id. at 656.) Miller’s first argument was that Judge Rudisill
applied the wrong standard in holding that the PFPA had sustained its charge
against him. (Id. at 662.) After discussion of a clarification of the law which
occurred while the appeal was pending, the MSPB held that Judge Rudisill did
apply the wrong standard, but that the MSPB did not need to remand because the
record was fully developed and the MSPB itself could apply the correct standard.
(Id. at 662, 663.) After reviewing the medical evidence anew, the MSPB affirmed
Judge Rudisill’s determination that the PFPA had proved its charge that Miller
failed to meet medical standards. (Id. at 666.)
Regarding Miller’s affirmative defense of disability discrimination, the
MSPB disagreed with Judge Rudisill on one aspect of the analysis and held that
Miller was disabled under the applicable regulations, but the MSPB ultimately
concluded that Miller had not shown he was a qualified individual, specifically,
that he could perform the essential functions of his position with or without
reasonable accommodation. (Id. at 667.) The MSPB found that Miller’s “knee
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condition precludes him from performing such emergency duties [as required by
his position] at a satisfactory level.” (Id.) Next, the MSPB upheld Judge Rudisill’s
decision regarding Miller’s due process defense. (Id. at 668–70.)
Finally, the MSPB addressed Miller’s argument that his removal was based
on his work-related injury, and thus, in violation of his restoration rights. (Id. at
671.) The MSPB agreed that the record was “not entirely clear whether his failure
to meet medical standards, and subsequent removal, was due to a work-related
injury, a non-work related condition, or both.” (Id.) Ultimately, the MSPB noted
that Miller had never requested restoration during the relevant time period, and
“regardless of whether the appellant’s removal was substantially related to his
compensable injury, the Board would lack jurisdiction over any potential
restoration claim in the context of the instant appeal.” (Id. at 672.)
Miller initiated the instant review by filing a complaint on September 1,
2023. On July 16, 2024, the court granted Plaintiff’s oral motion to bifurcate this
proceeding, so that the court could first address the appeal from the MSPB
determination, and then proceed with a trial de novo of the disability
discrimination claim. (Doc. 16.) Miller filed an amended complaint on September
30, 2024, raising an appeal from the MSPB’s final decision (Count I), as well as a
request for a trial de novo on a claim under the Rehabilitation Act of 1973 (Count
II). Defendant filed the administrative record on the same day. (Docs. 18–22.)
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Miller filed a brief in support of his appeal on November 15, 2024. (Doc. 26.)
Defendant filed his brief in opposition on December 30, 2024. (Doc. 31.) Miller
filed a reply brief on January 21, 2025. (Doc. 35.) Therefore, the appeal is ripe
and ready for disposition.
JURISDICTION AND VENUE
This court has jurisdiction pursuant to 5 U.S.C. § 7703(b)(2) because this is
a “mixed case” which contains “allegations of employment discrimination as well
as allegations of procedural violations under the [Civil Service Reform Act]
CSRA.” Makky v. Chertoff, 541 F.3d 205, 211 (3d Cir. 2008); see also Perry v.
Merit Sys. Prot. Bd., 582 U.S. 420, 436 (2017). Venue is proper in the Middle
District of Pennsylvania under 28 U.S.C. § 1391(b) because all acts or omissions
giving rise to the claim occurred within the Middle District of Pennsylvania.
STANDARD OF REVIEW
The court’s review of a final decision from the Merit Systems Protection
Board is limited by 5 U.S.C. § 7703(c), which provides that:
[t]he court shall review the record and hold unlawful and set aside any
agency action, findings, or conclusions found to be –
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law;
(2) obtained without procedures required by law, rule, or regulation
having been followed; or
(3) unsupported by substantial evidence;
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except that in the case of discrimination brought under any section
referred to in subsection (b)(2)5 of this section, the employee or
applicant shall have the right to have the facts subject to trial de novo
by the reviewing court.
Id. As made clear by the statute, the court’s review is limited to the administrative
record and is “subject to a more deferential standard established by statute.”
Vanyan v. Hagel, 9 F.Supp.3d 629, 642 (E.D. Va. 2014). The appellant has the
burden of showing the MSPB’s decision is arbitrary and capricious or not
supported by substantial evidence. Harris v. Dep’t of Veterans Affs., 142 F.3d
1463, 147 (Fed. Cir. 1998). A decision is arbitrary and capricious if it does not
have a rational basis in law. Davenport v. Spencer, 391 F.Supp.3d 366, 376 (M.D.
Pa. 2019)(citing Rand v. Geithner, 730 F. Supp. 2d 118, 125 (D.D.C. 2010)).
“[T]he arbitrary and capricious standard is extremely narrow and allows the Board
wide latitude in fulfilling its obligation to review agency disciplinary actions.”
United States Postal Service v. Gregory, 534 U.S. 1, 6–7 (2001). A decision is
supported by substantial evidence if there is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Simpson v.
Off. of Pers. Mgmt., 347 F.3d 1361, 1364 (Fed. Cir. 2003).

The sections referred to 5 U.S.C. § 7703(b)(2) are “section 717(c) of the Civil Rights Act of
1964 (42 U.S.C. § 2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of
1967 (29 U.S.C. § 633a(c)), and section 16(b) of the Fair Labor Standards Act of 1938, as
amended (29 U.S.C. § 216(b))[.]”
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DISCUSSION
Despite stating that this court has jurisdiction over this case pursuant to 5
U.S.C. § 7703(b)(2), Miller presents two issues for the court: “1) [w]hether the
Merit Systems Protection Board had, and this District Court has, subject matter
jurisdiction over the issue of whether Officer Miller was able to perform
unrestricted, full PFPA police duties?” and “2) [i]n the alternative, assuming the
Board had, and the District Court has, such subject matter jurisdiction, whether
Officer Miller failed to meet the PFPA’s Medical Standard for the Musculoskeletal
System?” (Doc. 26, pp. 1, 2.) The court will address each argument in turn.
A. Jurisdiction of MSPB and this Court
First, Miller argues that the MSPB and this court do not have jurisdiction to
“challenge” the OWCP’s determination that Miller was cleared for full duty. (Id.
at 10.) Miller relies on McDougal-Saddler v. Herman, 184 F.3d 2017 (3d Cir.
2019) to argue that 5 U.S.C. § 8128(b) precludes any other official, including
administrative judges, members of the MSPB, and U.S. District Courts, from
reviewing a decision by the Secretary of Labor or his subordinates. (Id. at 11, 12.)
Although not expressly laid out in his brief, it appears that it is Miller’s position
that the decision to terminate Miller’s employment based on failure to meet
medical standards “reviews” or overrules the OCWP Claims Examiner’s decision
that Miller was cleared for full duty.

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Defendant responds that Miller has failed to appropriately challenge the
MSPB’s decision because “§ 8128(b) was not intended to preclude an Agency
from making personnel management decisions independent of OWCP’s claims
administration process.” (Doc. 31, pp. 31, 32.) Further, the Agency contends that
“[i]n enacting 5 U.S.C. § 8128(b), Congress did not contemplate divesting federal
agencies within the Executive Branch of their authority to make decisions
regarding whether an individual is qualified for the job they hold.” (Id. at 32.)
In reply, Miller notes that the Agency does not cite any authority for its
arguments. (Doc. 35, p. 1.) Miller then points the court to Williams v. United
States Postal Service, 84 M.S.P.R. 374, 377 (1999) in which the MSPB held that,
in the context of reviewing a restoration rights claim, the Board may not review the
OWCP’s determination that an employee is fully recovered from a work-related
injury. (Id. at 5.) Miller contends that this case shows that the OWCP claims
examiner’s determination “trumps” the determination by the PFPA that Miller does
not meet agency medical standards. (Id. at 1.)
5 U.S.C. § 8128(b) provides that “[t]he action of the Secretary or his
designee in allowing or denying a payment under this subchapter is–(1) final and
conclusive for all purposes and with respect to all questions of law and fact; and
(2) not subject to review by another official of the United States or by a court by
mandamus or otherwise.” 5 U.S.C. § 8128(b). A review of the statute reveals the
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application of this section. First, the subchapter at issue involves “compensation
for disability or death of employee[,]” and provides the various standards under
which the Secretary of Labor determines whether an employee is entitled to
compensation. 5 U.S.C. §§ 8101 et seq. As stated in § 8128(b), such
determinations, i.e. “the making or denying of compensation awards[,]” are not
reviewable by district courts or the MSPB. Minor v. Merit Sys. Protection Bd., 819
F.2d 280, 283 (Fed. Cir. 1987); see also McDougal-Saddler v. Herman, 184 F.3d
207, 214 (3d Cir. 1999). Stated differently, “[s]ection 8128 provides the Secretary
with unreviewable discretion in “‘allowing or denying a payment.’” United States
v. Vetti, 681 F.Supp. 986, 991 (D. Conn. 1988)(emphasis in original).
However, the Federal Circuit has held that § 1828(b) “does not close the
door on review of all decisions that may overlap or touch on a DOL benefits
determination.” Kerrigan v. Merit Sys. Protection Bd., 833 F.3d 1349, 1353 (Fed.
Cir. 2016) (citing Minor, 819 F.2d at 283.) Indeed, the Federal Circuit in Kerrigan
held that the Board’s jurisdiction was not barred by § 8128(b) when jurisdiction
“stems from challenges that are separate and distinct from a simple appeal of
benefits denial[.]” Id. See also Swanson v. United States Postal Service, 13 Fed.
App’x 979, 979 (Fed. Cir. 2001) (Swanson argued the OWCP determined she was
“fully recovered” and the MSPB was without authority to hold she was not
recovered, but the Federal Circuit held that § 8128(b) “does not support Swanson’s
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argument because [§8128(b)] relates only to the finality of the Department of
Labor’s decisions on compensation awards; the decisions of the OWCP do not
bind the board or the agency when they act within their own statutory authority.”)
Additionally, the case offered by Miller is distinguishable from the case at
hand. In Williams, the plaintiff “assert[ed] that he had a right to restoration to duty
as a partially recovered employee, under 5 U.S.C. § 8151 and 5 C.F.R.
§353.301(d).” Williams, 84 M.S.P.R. at 377. The MSPB explained that “in order
to establish Board jurisdiction over his appeal, the appellant must show that he is
partially recovered from a compensable injury, and that he was denied restoration
by the agency after requesting it.” Id. Then, the MSPB explained, in the case
before it, the plaintiff “had an injury for which he was receiving compensation, that
he requested restoration, and that his request was denied.” Id. Under those facts,
the MSPB affirmed the administrative judge’s determination that the MSPB could
not review “OWCP’s determination that the appellant is fully recovered from the
work-related portion of his injury[.]” Id.
Here, Miller was challenging his removal from the Agency for failure to
meet medical qualifications. (Doc. 22, p. 655.) Miller was not challenging the
OWCP’s determination that he was fit to return to duty and was not asking the
MSPB to rule on the propriety of that determination. Judge Rudisill denied
Miller’s restoration claim, and the Board likewise denied the restoration claim
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because it found “nothing in the record to indicate that [Miller] made a request for
restoration during this time period.” (Doc. 22, pp. 554–56, 672.) Accordingly,
because Miller was not challenging an award or denial of compensation, § 8128(b)
does not operate in this context to bar the Board from deciding this appeal.
B. PFPA’s Medical Standards
Miller argues that the PFPA was required to show Miller was a direct threat
to himself or others to meet its burden of proving he did not meet the PFPA
musculoskeletal medical standard. (Doc. 26, pp. 13–17.) Defendant argues that
this argument has been waived because it is the first time in the nearly seven-year
span of this case that Miller has raised this argument. (Doc. 31, p. 33.) Miller did
not reply to this argument. After review of the administrative record, the court
agrees and declines to rule on this challenge to the MSPB’s decision. See Bosley v.
Mert Sys. Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998) (“A party in an MSPB
proceeding must raise an issue before the administrative judge if the issue is to be
preserved for review in this court.”)6

To the extent that Miller argues that this court and the MSPB should not defer to the PFPA’s
medical standards due to Loper Bright overruling Chevron deference, the court will not address
this argument because it declines to address the merits of whether the PFPA medical standards
were properly applied. (Doc. 26, p. 7)(citing Loper Bright Enterprises v. Raimondo, 603 U.S.
369 (2024)).
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CONCLUSION
Miller’s appeal from the MPSB’s decision affirming the PFPA’s termination
of his employment is denied. An order follows.

s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania
Dated: March 12, 2025

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