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United States Department of Labor Employees Compensation Appeals Board A.T., Appellant and DEPARTMENT OF THE AIR FORCE, ROBBINS AIR FORCE BASE, GA, Employer)))))))) Appearances: Appellant, pro SE

On June 29, 2011, the Air Force filed a reply, which, inter alia, asserted that this court lacked subject jurisdiction over appealed “in a criminal prosecution or any other case involving the employee.” The Secretary of the Air Force, DOD-VA, intervened in the appeal and filed a brief and cross-motion for summary judgment, asserting that the appeal was untimely because it had not been brought in time to be considered on January 2, 2010, when the original decision was appealed, and that the Air Force had no substantive or procedural defenses to appealed's motion. The Air Force also objected to appealed's application for summary judgment on various issues and requested a determination that appealed's actions were not willful negligence, a finding that appealed did not abuse its discretion, and a finding that there were no issues of material fact as to any of the alleged errors. The parties agreed to conference. Subsequently, appealed filed a motion for leave to file pursuant to Federal Rule of Civil Procedure 33 and a motion for summary judgment pursuant to Federal Rule of Civil Procedure 54. On June 24, 2012, the district court granted appealed's motion for leave to file. Upon the hearing on appealed's motion, appealed conceded the agency's claim that its conduct constituted willful or wanton misconduct and requested a dismissal. Appealed's motion for summary judgment was timely because it had been filed in time to be considered on January 2, 2010. However, the district court denied summary judgment on its motions, concluding that the “fault” standard was not satisfied. The district court found that appealed did not “knowingly” commit a “willful [or] wanton” breach of duty because appealed did not intend to harm or injure appealed's employer (“Defendant”). Instead, the court found that appealed acted negligently, in part because (1) Appealed “did not know that Plaintiff did not have a valid leave to continue [i.e., she did not intend to continue training, which she had a right under the FLEA to do, and the Secretary of the Air Force had stated that “[t]he Air Force is not required to provide leave in response to the FMLA, so the Department of the Air Force is not required to make an exception to its [leave] requirements for any U.S.

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