Gary R. Agnew v. United States Postal Service

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GARY R. AGNEW,
Petitioner
v.
UNITED STATES POSTAL SERVICE,
Respondent
______________________
2023-1688
______________________
Petition for review of the Merit Systems Protection
Board in Nos. PH-0752-04-0423-C-1, PH-0752-04-0425-C-
1.
______________________
Decided: February 7, 2024
______________________
G ARY R. AGNEW , Parrish, FL, pro se.
K ELLY G EDDES , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, STEVEN J OHN G ILLINGHAM , P ATRICIA M.
MCCARTHY .
______________________
Before P ROST , SCHALL , and REYNA, Circuit Judges.
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AGNEW v. USPS 2
P ER CURIAM .
Gary R. Agnew appeals a decision of the Merit Systems
Protection Board (“Board”) denying his petition for enforce-
ment that sought back pay and related benefits from the
United States Postal Service (“Postal Service”). We affirm.
BACKGROUND
Mr. Agnew, a preference-eligible veteran, was em-
ployed with the Postal Service. In February 2001, he un-
derwent a total knee replacement due to an on-the-job
injury. S.A. 51.1 He subsequently began collecting benefits
through the Office of Workers’ Compensation Programs
(“OWCP”) and did not return to work. In December 2001,
the Postal Service conducted an undercover investigation
of Mr. Agnew’s ability to work. S.A. 51. This investigation
ultimately resulted in his indictment in August 2003 for
fifteen felony counts of mail fraud and one felony count of
federal compensation fraud related to his collection of
OWCP benefits. S.A. 51. A jury convicted Mr. Agnew on
all counts in March 2004. S.A. 52.
In April 2004, Mr. Agnew sought a return to duty. The
Postal Service proposed and imposed an indefinite suspen-
sion, effective June 18, 2004, and subsequently proposed
and imposed his removal, effective August 27, 2004. S.A.
52. Mr. Agnew filed several appeals with the Board in
2004, including a challenge to his removal and a restora-
tion claim, all of which were delayed for numerous years
due to his imprisonment and health issues. S.A. 2.
In November 2015, an administrative judge sustained
Mr. Agnew’s August 2004 removal from the Postal Service
and denied his restoration claim. S.A. 2. The administra-
tive judge found, however, that Mr. Agnew had been
1 “S.A” refers to the supplemental appendix filed
with the government’s informal brief.
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AGNEW v. USPS 3
erroneously subjected to a constructive suspension from
April 2 to June 17, 2004, and an improper indefinite sus-
pension from June 18 to August 26, 2004. S.A. 2. The ad-
ministrative judge therefore ordered the cancellation of the
constructive and indefinite suspensions for the total period
of April 2 to August 26, 2004, and ordered the payment of
back pay, interest, and other relevant benefits. S.A. 2. In
a December 2016 final order, the Board affirmed the ad-
ministrative judge’s decision. S.A. 49, 63.
Mr. Agnew was paid for the period from May 7 to June
16, 2004, but the Postal Service notified Mr. Agnew that he
was not entitled to back pay for the remaining periods—
namely, April 2 to May 6, 2004, and June 17 to August 26,
2004—because the agency determined he had not been
ready, willing, and able to work during those two periods
(the “key periods”). S.A. 2.
On February 11, 2017, Mr. Agnew filed a petition for
enforcement due to the Postal Service’s refusal to provide
back pay for the key periods. S.A. 2, 25–48. In a compli-
ance initial decision, the administrative judge granted the
petition for enforcement. S.A. 11. She determined based
on three main pieces of evidence submitted by the Postal
Service that the agency had not shown that Mr. Agnew was
incapable of working during the key periods.
First, the administrative judge considered a medical
record from a September 2003 physical examination of
Mr. Agnew. S.A. 13. The medical examiner found that
Mr. Agnew “reports that he is unable to work; however, I
do feel he is capable of working in a sedentary capacity.”
S.A. 67. Second, the administrative judge considered the
Postal Service’s submission of a certification from the De-
partment of Veterans Affairs (“VA”) providing that Mr. Ag-
new was “permanently and totally disabled since March 13,
2003, due to service connected disability or disabilities.”
S.A. 13, 68. Third, the administrative judge considered an
undated excerpt of a deposition transcript submitted by the
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AGNEW v. USPS 4
Postal Service in which Mr. Agnew stated that he was un-
able to perform his regular job duties as of May 2002. S.A.
13, 69–70.
The administrative judge concluded that none of those
three pieces of evidence proved that Mr. Agnew “was inca-
pable of working during the [key periods] as the documen-
tation submitted by the agency does not cover that specific
period of time.” S.A. 13–14. In part, that conclusion was
based on a misreading of the VA certification as being
dated March 13, 2013, rather than March 13, 2003. S.A.
13 (stating that the VA found Mr. Agnew “permanently and
totally disabled since March 13, 2013”); S.A. 4 (“[T]he ad-
ministrative judge mistakenly described [the certification]
as covering only the period since March 2013.”). Finding
Mr. Agnew capable of working, the administrative judge
granted the petition for enforcement. S.A. 11. The agency
petitioned for review. S.A. 2.
On February 6, 2023, the Board vacated the initial
compliance decision and denied Mr. Agnew’s petition for
enforcement. S.A. 1. The Board determined that the
Postal Service did in fact meet its burden to show that
Mr. Agnew was not ready, willing, and able to work during
the key periods. The Board found the September 2003
evaluation—in which Mr. Agnew reported that he had not
worked for two years—to be persuasive evidence that he
was unable or unwilling to work, as well as the VA’s certi-
fication that he was permanently and totally disabled in
March 2003. S.A. 4. On the other hand, the Board found
the third piece of evidence, the deposition transcript, of lit-
tle utility because the excerpt lacked context; for example,
Mr. Agnew’s name was not included in the excerpted pages.
S.A. 5. Because the Board found the agency’s first two
pieces of evidence persuasive, the burden shifted to Mr. Ag-
new to show entitlement to back pay. The Board concluded
Mr. Agnew presented little to no evidence to suggest he was
ready, willing, and able to work during the key periods.
S.A. 5–6.
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AGNEW v. USPS 5
Mr. Agnew appeals the Board’s decision. We have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(9).
D ISCUSSION
In reviewing the Board’s decision, we “review the rec-
ord and hold unlawful and set aside any agency action,
findings, or conclusions found to be (1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c). “Un-
der the substantial evidence standard, this court reverses
the Board’s decision only if it is not supported by such rel-
evant evidence as a reasonable mind might accept as ade-
quate to support a conclusion.” Shapiro v. Soc. Sec.
Admin., 800 F.3d 1332, 1336 (Fed. Cir. 2015) (cleaned up).
The primary issue raised by Mr. Agnew’s petition for
enforcement is whether the Postal Service must provide
back pay for the key periods because Mr. Agnew was ready,
willing, and able to work at that time. Under regulations
interpreting the Back Pay Act, in computing the amount of
back pay owed under 5 U.S.C. § 5596, an agency may not
include “[a]ny period during which an employee was not
ready, willing, and able to perform his or her duties be-
cause of an incapacitating illness or injury.” 5 C.F.R.
§ 550.805(c)(1); see also 5 U.S.C. § 5596(b)(1)(A)(i) (Back
Pay Act).
We conclude that the Board’s decision that Mr. Agnew
was not ready, willing, and able to work during the key pe-
riods is supported by substantial evidence. Turning to the
first piece of evidence, the September 2003 medical exami-
nation, the Board found the examination record—which
was dated just a few months earlier than the key periods—
to be persuasive. Mr. Agnew himself “reported that he had
not worked for more than 2 years and was still unable to
work because of physical limitations,” leading the Board to
reasonably conclude that “[a]t a minimum, that suggests
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AGNEW v. USPS 6
[Mr. Agnew] was not willing to work in the months leading
up to the period at issue, even if an examining physician
thought he was able.” S.A. 5. Regarding the second piece
of evidence, the Board similarly reasoned that because the
VA certification provided that Mr. Agnew became perma-
nently and totally disabled in March 2003, “[t]he [VA] cer-
tification provides further support for the agency’s
assertion that [Mr. Agnew] was not ready, willing, and able
to work during the claimed back pay period.” S.A. 5. This
evidence adequately supports the Board’s conclusion.
In light of this record evidence, the burden shifted to
Mr. Agnew to show that he was indeed ready, willing, and
able to work during the key periods. Mr. Agnew submitted
“a July 2003 letter from the Department of Labor to his
treating physician, requesting information about his phys-
ical limitations,” and additionally relied on the aforemen-
tioned September 2003 medical examination in which the
examiner opined that Mr. Agnew “could work in a seden-
tary capacity.” S.A. 5. But apart from this evidence, the
Board noted “no other evidence concerning whether he was
ready, willing, and able to work” during the key periods.
S.A. 5. On the record before it, the Board reasonably held
that the evidence was not in Mr. Agnew’s favor. We con-
clude that substantial evidence supports the Board’s con-
clusion that Mr. Agnew was not ready, willing, and able to
work.
Indeed, on appeal, Mr. Agnew presents a somewhat
counterintuitive argument that he was not fit to return to
duty. See Informal Br. 13, 16–17 (explaining he “was in-
deed disabled and was not fit to return to duty”).2 This
point may relate to his additional argument on appeal that
the OWCP improperly terminated his benefits. Id. at 21–
22 (seeking reinstatement of his compensation benefits).
2 We refer to the page numbers generated by the
electronic case filing system.
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AGNEW v. USPS 7
Those arguments were not the subject of his petition for
enforcement, which concerns the Postal Service’s payment
of back pay for the key periods. See S.A. 25–30. We there-
fore lack jurisdiction to consider arguments related to his
OWCP benefits on appeal.
We similarly decline to review his argument that his
conviction for mail fraud “must also be removed” because
he was “entitled to those checks sent by DOL/OWCP.” In-
formal Br. 17. We lack jurisdiction to review his criminal
conviction. See 28 U.S.C. § 1295; United States v. Clark,
No. 24-1186, 2024 WL 273450, at *1 (Fed. Cir. Jan. 25,
2024) (nonprecedential) (“This is a court of limited jurisdic-
tion, which does not include jurisdiction over criminal
cases.”); see also United States v. Agnew, 171 F. App’x 376,
379 (2d Cir. 2006) (affirming conviction on appeal).
CONCLUSION
We have considered Mr. Agnew’s arguments and find
them unpersuasive. For the foregoing reasons, we affirm
the Board’s decision.
AFFIRMED
COSTS
No costs.
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