NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3099
JAMES EDWARDS, III,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
DECIDED: May 5, 2006
__________________________
Before NEWMAN, MAYER, and RADER, Circuit Judges.
PER CURIAM.
James Edwards, III appeals from the final decision of the Merit Systems
Protection Board, which affirmed the arbitrator’s denial of his grievance challenging his
removal. Edwards v. Dep’t of Veterans Affairs, CB7121050016-V-1 (MSPB Oct. 31,
2005). We affirm.
We must affirm the board’s decision unless it was arbitrary, capricious, an abuse
of discretion, or unlawful; procedurally deficient; or unsupported by substantial
evidence. See 5 U.S.C. § 7703(c) (2000). Edwards contends that the arbitrator
improperly applied 29 C.F.R. § 825.208(e)(1) instead of 5 C.F.R. § 630.1207(h) in
determining the deadline for submitting medical documentation. We agree with the
board that Title 5, not Title 29, applies here, but we also note that the subsections cited
by Edwards concern different deadlines: 29 C.F.R. § 825.208(e)(1) addresses when
leave under the Family Medical Leave Act (“FMLA”) must be invoked, whereas 5 C.F.R.
§ 630.1207(h) concerns when medical documentation must be submitted. However,
any error resulting from the misapplication of Title 29 was harmless because the
arbitrator and board found that Edwards had not presented medical certification for all of
his unexcused absences.
The board observed that when the arbitration was held seven months after
Edwards returned to work, he still had not submitted medical certification for certain
unexcused dates. However, Edwards cites a letter from his physician, dated ten days
after his removal, providing that he underwent multiple inpatient treatments for chemical
dependency spanning the unexcused absences. Unless the arbitrator or board
implicitly considered the letter and found that it did not qualify as medical certification
under 5 C.F.R. § 630.1207(b), we believe the board’s observation that he had not
submitted any certification was in error. However, we need not address whether the
letter satisfied the requirements of section 630.1207(b), because it was submitted well
beyond the deadline for submitting such certification, see § 630.1207(h), and the
arbitrator would not have erred in declining to consider it. The department did consider
the medical documentation that Edwards submitted prior to his removal, and it changed
some of his absences from “absent without leave” to “leave without pay” in light of his
06-3099 2
submissions. Moreover, although the department found the documentation submitted
by Edwards inadequate to excuse some of his absences, it was under no duty to
request additional documentation.
Edwards also argues that the board “imposed an improperly high standard for
providing medical documentation.” However we find nothing in the record to indicate
that the burden placed upon him was legally improper.
06-3099 3