Case: 22-1072 Document: 42 Page: 1 Filed: 11/15/2022
`NOTE: This disposition is nonprecedential.
`United States Court of Appeals
`for the Federal Circuit
`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.
` KELLY A. KRYSTYNIAK, Commercial Litigation Branch,


`Case: 22-1072 Document: 42 Page: 2 Filed: 11/15/2022
`Civil Division, United States Department of Justice, Wash-
`ington, DC, for intervenor. Also represented by BRIAN M.
`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.
`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
`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.


`Case: 22-1072 Document: 42 Page: 3 Filed: 11/15/2022
`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
`lack of


`Case: 22-1072 Document: 42 Page: 4 Filed: 11/15/2022
`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).


`Case: 22-1072 Document: 42 Page: 5 Filed: 11/15/2022
`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


`Case: 22-1072 Document: 42 Page: 6 Filed: 11/15/2022
`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.
`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.
`No costs.

This document is available on Docket Alarm but you must sign up to view it.

Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.


A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.

Access Government Site

We are redirecting you
to a mobile optimized page.

Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket