Case: 21-1523 Document: 22 Page: 1 Filed: 09/10/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ZUBEIR JALIWALA,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2021-1523
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-20-0323-I-1.
______________________
Decided: September 10, 2021
______________________
ZUBEIR JALIWALA, Miramar, FL, pro se.
KYLE SHANE BECKRICH, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, ROBERT EDWARD KIRSCHMAN, JR., FRANKLIN E.
WHITE, JR.
______________________
Before MOORE, Chief Judge, PROST and STOLL, Circuit
Judges.
Case: 21-1523 Document: 22 Page: 2 Filed: 09/10/2021
2 JALIWALA v. DHS
PER CURIAM.
Mr. Jaliwala was removed from his position as a Crim-
inal Investigator at the Department of Homeland Security,
U.S. Immigration and Customs Enforcement (ICE) for fail-
ing to meet a condition of employment—one of the physical
fitness requirements set by the agency. He challenged his
removal to the Merit Systems Protection Board, which af-
firmed his removal and rejected his affirmative defenses.
Jaliwala v. Dep’t of Homeland Sec., No. SF-0752-20-0323-
I-1,
2020 WL 5879703 (M.S.P.B. Oct. 1, 2020). On appeal,
Mr. Jaliwala challenges the Board’s rejection of his affirm-
ative defenses. For the reasons below, we affirm.
BACKGROUND
The parties agreed to the facts of this case, which are
set forth in the Board’s decision. SAppx. 4–11. 1 ICE posted
a job opening for a Criminal Investigator in 2015. The post-
ing noted that an applicant “may, in the future, be required
to maintain a level of physical fitness in accordance with
the standards and policies of the agency.” SAppx. 5.
Mr. Jaliwala applied for this position and was hired.
While Mr. Jaliwala was going through basic training,
ICE implemented a Personal Fitness Test (PFT) policy,
which required certain minimum levels of fitness of agents
in Mr. Jaliwala’s position. One requirement was that
agents be able to run 1.5 miles within 14 minutes and
25 seconds. Mr. Jaliwala was unable to meet this time, in-
stead completing the distance in 16 minutes and 32 sec-
onds, but he satisfied all other requirements of the PFT.
After failing the test, Mr. Jaliwala was sent home from
basic training. That same day, he sought a waiver of the
PFT requirement, as allowed by the Office of Personnel
1 “SAppx.” refers to the supplemental appendix filed
by the Government.
Case: 21-1523 Document: 22 Page: 3 Filed: 09/10/2021
JALIWALA v. DHS 3
Management’s regulations. 2 Those regulations require an
agency to waive medical requirements or physical stand-
ards for federal employees “when an applicant or employee,
unable to meet that standard or requirement, presents suf-
ficient evidence that the applicant or employee, with or
without reasonable accommodation, can perform the essen-
tial duties of the position without endangering the health
and safety of the applicant or employee or others.” 5 C.F.R.
§ 339.204(a). Mr. Jaliwala’s waiver request was reviewed
by a Training Review Board, who recommended that his
request be denied, but that he be given a second chance to
pass the PFT and return to training. The Assistant Direc-
tor at ICE, Eric Feldman, adopted the recommendation of
the Training Review Board.
Based on the Training Review Board’s recommenda-
tion, Mr. Jaliwala took the PFT a second time but only com-
pleted the run in 16 minutes and 46 seconds. After this,
Division Chief Eric Balliet proposed Mr. Jaliwala’s re-
moval for failure to meet a condition of employment. After
receiving the removal proposal, Deputy Assistant Director
Ricardo Mayoral provided Mr. Jaliwala a third chance to
show he could pass the PFT. Instead of making another
attempt, Mr. Jaliwala argued that he should have been
given a waiver because he had previously served as a law-
enforcement officer and thus was qualified for the job. Dep-
uty Assistant Director Mayoral disagreed with Mr. Jali-
wala and, based on Division Chief Balliet’s proposal,
removed Mr. Jaliwala from his position.
Mr. Jaliwala appealed to the Merit Systems Protection
Board. On appeal to the Board, Mr. Jaliwala asserted two
2 At the time of his waiver request, ICE had not yet
implemented a waiver protocol for the PFT policy. Shortly
after Mr. Jaliwala filed his request, ICE enacted a protocol
for handling such waiver requests and invited Mr. Jaliwala
to resubmit his request, which he did.
Case: 21-1523 Document: 22 Page: 4 Filed: 09/10/2021
4 JALIWALA v. DHS
affirmative defenses: (1) the agency committed harmful
procedural error in its decision denying his waiver request,
and (2) the agency’s decision was “not in accord with law”
because the procedures for considering his waiver request
were not followed. An Administrative Judge issued an in-
itial decision that sustained Mr. Jaliwala’s removal and re-
jected his two affirmative defenses. Because of a lack of a
quorum at the Board, this initial decision became the
Board’s final decision without further review.
Mr. Jaliwala appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
We review the Board’s interpretation of a statute de
novo and the Board’s factual determinations for substan-
tial evidence. Sistek v. Dep’t of Veterans Affs.,
955 F.3d
948, 953 (Fed. Cir. 2020). We affirm a Board decision un-
less it was: “(1) arbitrary, capricious, an abuse of discre-
tion, 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 ev-
idence.” 5 U.S.C. § 7703(c). The petitioner bears the bur-
den of establishing reversible error in the Board’s final
decision. Sistek, 955 F.3d at 953.
Mr. Jaliwala presents two main arguments on appeal.
First, Mr. Jaliwala argues that the Training Review
Board’s error in reviewing his waiver request, i.e., its “pro-
cedures in arriving at [its] decision,” 5 U.S.C.
§ 7701(c)(2)(A), was “harmful error.” Second, Mr. Jaliwala
argues that the Training Review Board’s waiver recom-
mendation and Mr. Feldman’s acceptance of that recom-
mendation “was not in accordance with law.” 5 U.S.C.
§ 7701(c)(2)(C). We address each argument in turn.
Starting with Mr. Jaliwala’s argument that the Board
committed “harmful error,” substantial evidence supports
the Board’s finding that, although Mr. Jaliwala established
Case: 21-1523 Document: 22 Page: 5 Filed: 09/10/2021
JALIWALA v. DHS 5
that the Training Review Board committed a procedural
error, he failed to show that this error was “harmful.” It is
undisputed that, in denying Mr. Jaliwala’s request for a
waiver, the Training Review Board and Assistant Director
Feldman did not expressly consider whether Mr. Jaliwala
“present[ed] sufficient evidence that [Mr. Jaliwala] . . .
c[ould] perform the essential duties of the position without
endangering the health and safety of [himself] or others.”
SAppx. 18. The Board found this to be an error, and the
Government does not argue otherwise. Id.
The Board also found, however, that Mr. Jaliwala
failed to prove that this error was harmful as it regarded
the agency’s decision to remove him from service. The
Board defines “harmful error” as an “[e]rror by the agency
in the application of its procedures that is likely to have
caused the agency to reach a conclusion different from the
one it would have reached in the absence or cure of the er-
ror.” 5 C.F.R. § 1201.4(r). The appellant must show that
this error “caused substantial harm or prejudice to his or
her rights.” Id. In finding that the error was not harmful,
the Board relied largely on the testimony of Deputy Assis-
tant Director Mayoral that he considered whether Mr. Jali-
wala could perform the essential duties of the position
when deciding whether removal of Mr. Jaliwala was appro-
priate. SAppx. 18–19. Specifically, Mr. Mayoral testified
that he “found that the appellant did not introduce suffi-
cient evidence that he would be able, within established
parameters, to engage in a foot pursuit of a fleeing individ-
ual or in response to a dangerous situation, or assist an-
other agent in a shooting incident, which are essential
duties.” SAppx. 19. The Board concluded, based on this
testimony, that it was unlikely that the Training Review
Board would have reached a different conclusion, and thus
Mr. Jaliwala failed to show the error was harmful—i.e.,
curing this error was “likely” to result in a different conclu-
sion regarding his removal.
Case: 21-1523 Document: 22 Page: 6 Filed: 09/10/2021
6 JALIWALA v. DHS
Mr. Jaliwala speculates that it is “possibl[e]” that this
error could have affected his removal, Appellant’s
Br. 11–12, but he does not identify any evidence that would
have likely persuaded the Training Review Board to reach
a conclusion opposite to that of Mr. Mayoral. And Mr. Jali-
wala’s arguments on appeal do not address or undermine
the logic presented in Mr. Mayoral’s testimony regarding
the essential duties of the job. Therefore, although
Mr. Jaliwala is correct that this is a procedural error, we
conclude that substantial evidence supports the Board’s
finding that the error was not shown to have been harmful
such that it would have affected Mr. Jaliwala’s removal, as
is required by 5 C.F.R. § 1201.56(c)(1) and 5 U.S.C.
§ 7701(c)(2)(A).
Mr. Jaliwala’s second argument, that the agency’s de-
cision was “not in accordance with law,” contends that the
waiver decision itself failed to follow required procedures.
See, e.g., Appellant’s Br. 12 (arguing ICE “cannot show as
a matter of law that it complied with [5 C.F.R.] § 339.204”
(the section regarding waiver decisions)). 3 We cannot,
however, decide as an independent matter whether that
waiver decision was proper irrespective of how it would af-
fect the removal decision. As the Board found, and
Mr. Jaliwala does not contest on appeal, the Board does not
have jurisdiction to review such waiver determinations.
SAppx. 16–17, 20. Therefore, like the Board, we review
only the waiver determination’s effect on the removal deci-
sion. We affirm because, as explained above, we agree with
the Board that Mr. Jaliwala has not shown that the error
3 Mr. Jaliwala does not contest the legal authority of
the Training Review Board and Mr. Feldman to deny his
waiver request or that they did, in fact, deny his request.
He instead contests the manner in which it was denied.
Similarly, he does not contest Mr. Mayoral’s legal author-
ity to remove him from service.
Case: 21-1523 Document: 22 Page: 7 Filed: 09/10/2021
JALIWALA v. DHS 7
in the waiver decision would likely have affected the re-
moval decision.
Mr. Jaliwala was given numerous opportunities to
meet the agency-set minimum fitness requirement, but he
was simply unable to. Instead he argued that he should be
excused from that requirement because he could still per-
form the job adequately. Ultimately, Mr. Jaliwala’s dissat-
isfaction appears to find its source in his disagreement
with the agency that running 1.5 miles in under 14 minutes
and 25 seconds is a necessary requirement to adequately
perform the job. This determination as to the requirements
necessary to perform a certain job is the type of judgement
call reserved for the agency itself.
CONCLUSION
For the reasons stated above, we affirm the Board’s af-
firmance of Mr. Jaliwala’s removal.
AFFIRMED
COSTS
No costs.
