2011-18647. Notice of Opportunity To File Amicus Briefs

AGENCY:

Merit Systems Protection Board (MSPB or Board).

ACTION:

Notice.

SUMMARY:

The Board announces the opportunity to file amicus briefs in the matters of James C. Latham v. U.S. Postal Service, MSPB Docket Number DA-0353-10-0408-I-1, Ruby N. Turner v. U.S. Postal Service, MSPB Docket Number SF-0353-10-0329-I-1, Arleather Reaves v. U.S. Postal Service, MSPB Docket Number CH-0353-10-0823-I-1, Cynthia E. Lundy v. U.S. Postal Service, MSPB Docket Number AT-0353-11-0369-I-1, and Marcella Albright v. U.S. Postal Service, MSPB Docket Number DC-0752-11-0196-I-1.

The Office of Personnel Management's regulation at 5 CFR 353.301(d) requires the agency to “make every effort” to restore a partially recovered employee to limited duty within the local commuting area. The regulation explains that “[a]t a minimum, this would mean treating these employees substantially the same as other [disabled] individuals under the Rehabilitation Act of 1973.” The Board has interpreted this regulation as requiring agencies to search within the local commuting area for vacant positions to which an agency can restore a partially recovered employee and to consider the employee for any such vacancies. Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 12 (2010) (citing Sapp v. U.S. Postal Service, 73 M.S.P.R. 189, 193-94 (1997)). Conversely, the Board has found that this regulation does not require an agency to assign a partially recovered employee limited duties that do not comprise the essential functions of a complete and separate position. Brunton v. U.S. Postal Service, 114 M.S.P.R. 365, ¶ 14 (2010) (citing Taber v. Department of the Air Force, 112 M.S.P.R. 124, ¶ 14 (2009)).

However, it appears that the U.S. Postal Service may have established an agency-specific rule providing partially recovered employees with greater restoration rights than the “minimum” rights described in 5 CFR 353.301(d). See generally Drumheller v. Department of the Army, 49 F.3d 1566, 1574 (Fed. Cir. 1995) (agencies are required to follow their own regulations). Specifically, the U.S. Postal Service's Employee and Labor Relations Manual (ELM) § 546.142(a) requires the agency to “make every effort toward assigning [a partially recovered current employee] to limited duty consistent with the employee's medically defined work limitation tolerance.” One of the appellants has submitted evidence to show that U.S. Postal Service Handbook EL-505, Injury Compensation §§ 7.1-7.2 provides that limited duty assignments “are designed to accommodate injured employees who are temporarily unable to perform their regular functions” and consist of whatever available tasks the agency can identify for partially recovered individuals to perform consistent with their medical restrictions. Latham v. U.S. Postal Service, MSPB Docket No. DA-0353-10-0408-I-1, Initial Appeal File, Tab 21, Subtab 7. It therefore appears that the agency may have committed to providing medically suitable work to partially recovered employees regardless of whether that work comprises the essential functions of a complete and separate position. Indeed, the Board is aware of one arbitration decision explaining that, as a product of collective bargaining, the agency revised the ELM in 1979 to afford partially recovered employees the right to restoration to “limited duty” rather than to “established jobs.” In re Arbitration between U.S. Postal Service and National Association of Letter Carriers, Case No. E06N-4E-C 09370199, 16 (2010) (Eisenmenger, Arb.). The Board is also aware of a large number of other recent cases challenging the discontinuation of limited duty assignments under the National Reassessment Process in which the arbitrators ruled in favor of the grievants on the basis that the agency's actions violated the ELM. E.g., In re Arbitration between U.S. Postal Service and National Association of Letter Carriers, Case No. G06N-4G-C 10205542 (2011) (Sherman, Arb.); In re Arbitration between U.S. Postal Service and National Association of Letter Carriers, Case No. E06N-4E-C 09419348 (2010) (Duffy, Arb.); In re Arbitration between U.S. Postal Service and National Association of Letter Carriers, Case No. F06N-4F-C 09221797 (2010) (Monat, Arb.); In re Arbitration between U.S. Postal Service and National Association of Letter Carriers, Case No. B01N-4B-C 06189348 (2010) (LaLonde, Arb.).

The appellants in the above-captioned appeals have all raised similar arguments before the Board pertaining to alleged violations of their restoration rights under the ELM. The Board, however, has not yet addressed the implications of ELM § 546.142(a) on restoration appeals of partially recovered U.S. Postal Service employees under 5 CFR 353.304(c).

The above-captioned appeals thus present the following legal issues: (1) May a denial of restoration be “arbitrary and capricious” within the meaning 5 CFR 353.304(c) solely for being in violation of the ELM, i.e., may the Board have jurisdiction over a restoration appeal under that section merely on the basis that the denial of restoration violated the agency's own internal rules; and (2) what is the extent of the agency's restoration obligation under the ELM, i.e., under what circumstances does the ELM require the agency to offer a given task to a given partially recovered employee as limited duty work?

Interested parties may submit amicus briefs or other comments on these issues no later than August 24, 2011. Amicus briefs must be filed with the Clerk of the Board. Briefs shall not exceed 30 pages in length. The text shall be double-spaced, except for quotations and footnotes, and the briefs shall be on 81/2 by 11 inch paper with one inch margins on all four sides.

DATES:

All briefs submitted in response to this notice shall be filed with the Clerk of the Board on or before August 24, 2011.

ADDRESSES:

All briefs shall be captioned “James C. Latham, et al. v. U.S. Postal Service” and entitled “Amicus Brief.” Only one copy of the brief need be submitted. Briefs must be filed with the Office of the Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419.

FOR FURTHER INFORMATION CONTACT:

Matthew Shannon, Office of the Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419; [phone]; [e-mail].

William D. Spencer,

Clerk of the Board.