Case: 22-1072 Document: 42 Page: 1 Filed: 11/15/2022
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`NOTE: This disposition is nonprecedential.
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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`STEPHEN DURR,
`Petitioner
`
`v.
`
`MERIT SYSTEMS PROTECTION BOARD,
`Respondent
`
`UNITED STATES POSTAL SERVICE,
`Intervenor
`______________________
`
`2022-1072
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. CH-4324-17-0324-M-1.
`______________________
`
`Decided: November 15, 2022
`______________________
`
`STEPHEN DURR, Chicago, IL, pro se.
`
`
` JEFFREY GAUGER, Office of the General Counsel,
`United States Merit Systems Protection Board, Washing-
`ton, DC, for respondent. Also represented by TRISTAN L.
`LEAVITT, KATHERINE MICHELLE SMITH.
`
` KELLY A. KRYSTYNIAK, Commercial Litigation Branch,
`
`

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`Case: 22-1072 Document: 42 Page: 2 Filed: 11/15/2022
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`2
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`DURR v. MSPB
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`Civil Division, United States Department of Justice, Wash-
`ington, DC, for intervenor. Also represented by BRIAN M.
`BOYNTON, PATRICIA M. MCCARTHY, DOUGLAS K. MICKLE.
`______________________
`
`Before CHEN, CLEVENGER, and CUNNINGHAM, Circuit
`Judges.
`
`PER CURIAM.
`Mr. Stephen Durr appeals a final decision of the Merit
`Systems Protection Board (Board or MSPB) dismissing his
`appeal alleging violations of the Uniformed Services Em-
`ployment and Reemployment Rights Act of 1994
`(USERRA) by his former employer, the United States
`Postal Service (USPS). See Durr v. U.S. Postal Serv., No.
`CH-4324-17-0324-M-1, 2021 WL 3287973 (M.S.P.B. July
`30, 2021) (Board Decision) (SAppx. 1–19).1 Because the
`Board did not abuse its discretion in finding the doctrine of
`laches applies, we affirm.
`BACKGROUND
`Mr. Durr was honorably discharged from the U.S.
`Army in January 1993 and hired by USPS in March 1994.
`SAppx. 2, 32. On January 16, 1996, USPS recorded Mr.
`Durr as being absent without official leave (AWOL).
`SAppx. 2, 27. Mr. Durr continued to fail to report to work,
`and on April 24, 1996, USPS notified him of a proposal for
`his removal. Id. The notice gave Mr. Durr fourteen days
`to respond, but he did not respond. SAppx. 2, 28. On May
`16, 1996, USPS sent Mr. Durr a letter noting his non-
`
`“SAppx.” citations herein refer to the appendix
`1
`filed concurrently with Respondent’s brief. Additionally,
`because the reported version of the Board’s decision is not
`paginated, citations herein are to the version of the Board
`decision included in the appendix—e.g., Board Decision at
`1 can be found at SAppx. 1.
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`Case: 22-1072 Document: 42 Page: 3 Filed: 11/15/2022
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`DURR v. MSPB
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`response to the removal proposal and informing him that
`he would be removed from service, effective June 1, 1996.
`SAppx. 29–30. The letter also notified Mr. Durr of his right
`to appeal “[the] decision . . . within 30 days from the effec-
`tive date of [the] decision.” SAppx. 29. Mr. Durr did not
`timely challenge his removal.
`On May 14, 2015, nearly 20 years after his removal,
`Mr. Durr filed an appeal to the Board challenging his 1996
`AWOL charge and his subsequent removal. SAppx. 2. An
`administrative judge dismissed that appeal, the Board af-
`firmed, and we dismissed Mr. Durr’s appeal of the Board’s
`affirmance for failure to prosecute. Durr v. Merit Sys. Prot.
`Bd., No. 2016-1700 (Fed. Cir. May 5, 2016).
`Mr. Durr subsequently filed another appeal to the
`Board on April 10, 2017 requesting remedial action under
`USERRA. SAppx. 4. The administrative judge dismissed
`for lack of jurisdiction, which the Board made final. SAppx.
`34. Mr. Durr subsequently appealed to this court, and we
`reversed the dismissal on the basis that Mr. Durr “raised
`allegations sufficient to establish the MSPB’s jurisdiction
`over his appeal under USERRA” and remanded the case
`back to the Board. Durr v. Merit Sys. Prot. Bd., 844 F.
`App’x 329, 331–32 (Fed. Cir. 2021).
`On remand, USPS moved for dismissal based on the
`doctrine of laches. SAppx. 44–46. USPS contended Mr.
`Durr waited over twenty years to bring his USERRA claim
`and that he did not provide any explanation for the delay.
`SAppx. 44–45. USPS further asserted that the employees
`who had personal knowledge regarding Mr. Durr’s removal
`were either retired or deceased. SAppx. 45. USPS also
`submitted a declaration by Tim Markland, Manager of La-
`bor Relations for the Central Illinois District of USPS, ex-
`plaining that the agency attempted, but was unable, to
`locate electronic or hardcopy records related to Mr. Durr’s
`removal. SAppx. 45, 47–51. Mr. Markland’s declaration
`explained he was unsurprised with
`the
`lack of
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`DURR v. MSPB
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`documentation because of a USPS policy stating retention
`of documents relating to disciplinary or adverse actions
`may not exceed 10 years beyond the employee’s separation
`date. SAppx. 50 ¶ 9. USPS also averred it faced excessive
`back pay liability. SAppx. 46.
`The administrative judge issued a show cause order
`asking why the appeal should not be dismissed based on
`the laches doctrine. SAppx. 56–58. Mr. Durr responded
`that USPS’s inability to locate the documents related to his
`removal was due to inadequate recordkeeping. SAppx. 60.
`Mr. Durr further averred that he did not intentionally de-
`lay filing his appeal and that any delay was caused by men-
`tal incapacitation. SAppx. 64. Mr. Durr also contended
`that he did not discover he was wrongfully removed until
`May 2015. Id.
`judge dismissed Mr. Durr’s
`The administrative
`USERRA claim as barred by laches. Board Decision at 1–
`12. The administrative judge found Mr. Durr’s twenty-one
`year delay in bringing his USERRA claim unreasonable
`and prejudicial to USPS’s ability to respond. Id. at 11–12.
`While the administrative judge acknowledged Mr. Durr’s
`medical diagnoses for various mental disorders, the judge
`found Mr. Durr was competent enough to stand trial on
`multiple occasions. Id. at 10–11. The administrative judge
`also found the medical evidence (1) showed that Mr. Durr
`could control his conditions through use of medication but
`that he refused medication on occasion and (2) did not show
`sufficient severity and duration of a mental disorder while
`Mr. Durr was taking medication. Id. at 9–11. The admin-
`istrative judge’s decision became the Board’s final decision
`when Mr. Durr did not petition for Board review within 35
`days. See 5 C.F.R. § 1201.113; Board Decision at 12–13.
`Mr. Durr timely appealed to this court. We have juris-
`diction pursuant to 28 U.S.C. § 1295(a)(9).
`DISCUSSION
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`DURR v. MSPB
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`A party claiming a laches defense must show “unrea-
`sonable delay by the petitioner, and prejudice to the re-
`spondent because of the delay.” Hoover v. Dep’t of Navy,
`957 F.2d 861, 863 (Fed. Cir. 1992). We do not set aside a
`Board decision unless it is “(1) arbitrary, capricious, 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) unsupported by
`substantial evidence[.]” 5 U.S.C. § 7703(c); see also Bridge-
`stone/Firestone Rsch., Inc. v. Auto. Club de l’Ouest de la
`France, 245 F.3d 1359, 1361 (Fed. Cir. 2001).
`Mr. Durr’s arguments do not persuade us that the
`Board abused its discretion in dismissing Mr. Durr’s ap-
`peal. Substantial evidence supports the Board’s finding
`that Mr. Durr’s delay in bringing his USERRA claim was
`both unreasonable and prejudicial. USPS notified Mr.
`Durr of his removal and his right to appeal to the Board in
`1996, yet he waited over twenty years after his removal to
`bring his USERRA claim to the Board. SAppx. 6. Mr.
`Durr’s period of delay is considerably longer than in Sleevi,
`where we affirmed the Board’s dismissal of an USERRA
`appeal based on the doctrine of laches because petitioner
`delayed thirteen years to file his claim. Sleevi v. Merit Sys.
`Prot. Bd., No. 2021-1447, 2021 WL 2879045, at *1 (Fed.
`Cir. July 9, 2021). Moreover, Mr. Durr does not allege the
`Board incorrectly decided or failed to account for any facts,
`applied the wrong law, or failed to consider important
`grounds. See Pet. Informal Br. 2.
`To the extent that Mr. Durr argues his delay was rea-
`sonable in light of his mental incapacitation, see Pet. Reply
`Br. ¶¶ 5–6, substantial evidence supports the Board’s find-
`ing that Mr. Durr’s mental conditions were not of such se-
`verity and duration to cause Mr. Durr’s twenty-one-year
`delay in bringing his USERRA claim to be reasonable. Spe-
`cifically, the Board relied on medical records showing Mr.
`Durr’s mental conditions were controllable, such that he
`was competent to stand trial on various occasions during
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`DURR v. MSPB
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`the delay period, and that he would refuse medication. See
`Board Decision at 9–11. We do not discern any abuse of
`discretion in the Board’s reasoning, which is supported by
`substantial evidence.
`We also find substantial evidence supports the Board’s
`determination that Mr. Durr’s unreasonable delay preju-
`diced the USPS. Because of the long period between Mr.
`Durr’s removal and his USERRA claim, documentation
`pertaining to Mr. Durr’s removal no longer exists. SAppx.
`7–8. Moreover, relevant personnel with knowledge of Mr.
`Durr’s removal have retired or passed away. SAppx. 8–9.
`Mr. Durr makes no arguments to the contrary.
`CONCLUSION
`We have considered Mr. Durr’s remaining arguments
`and find them unpersuasive. For the foregoing reasons, we
`affirm the Board’s dismissal of Mr. Durr’s appeal based on
`the doctrine of laches.
`
`AFFIRMED
`COSTS
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`No costs.
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`