[Federal Register Volume 65, Number 149 (Wednesday, August 2, 2000)]
[Notices]
[Page 47518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-19463]


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MERIT SYSTEMS PROTECTION BOARD


Opportunity to File Amicus Briefs in Jerry Gribcheck v. U.S. 
Postal Service, MSPB Docket Nos. CH-0752-99-0002-I-1, Ch-0752-99-0014-
I-1, CH-0752-99-0337-I-1

AGENCY: Merit Systems Protection Board.

ACTION: The Merit Systems Protection Board has requested an advisory 
opinion from the Director of the Office of Personnel Management (OPM) 
concerning the interpretation of regulations promulgated by OPM. The 
Board is providing interested parties with an opportunity to submit 
amicus briefs on the same questions raised in the request to OPM as set 
forth in the summary below.

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SUMMARY: The appellant, a Postal Service preference eligible, filed 
three appeals challenging a series of actions that the agency took in 
1998-99 when it ordered him to undergo psychiatric fitness-for-duty 
examinations, allegedly refused to allow him to return to work, and 
ultimately placed him on enforced leave when he refused to submit to 
the third examination. The docket numbers are listed above. The 
administrative judge issued a single initial decision in the first two 
appeals, dismissing them as moot and finding that the appellant failed 
to establish his affirmative defenses of disability discrimination and 
retaliation for filing equal employment opportunity complaints. In the 
third appeal, which concerned the enforced leave, the administrative 
judge sustained the agency's action and found that the appellant failed 
to establish the same defenses.
    In his petition for review in all three cases, the appellant 
reasserts that the agency's placement of him on enforced leave for 
refusing to submit to a fitness-for-duty examination was not 
sustainable because the agency did not fulfill the requirements of 5 
CFR Sec. 339.301.
    Under 5 CFR Sec. 339.301, an agency may order a psychiatric 
examination (including a psychological assessment) only when:
    (i) The result of a current general medical examination which the 
agency has the authority to order under this section indicates no 
physical explanation for behavior or actions which may affect the safe 
and efficient performance of the individual or others, or
    (ii) A psychiatric examination is specifically called for in a 
position having medical standards or subject to a medical examination 
program established under this part.
5 CFR Sec. 339.301(e)(1)(i).
    The agency placed the appellant on enforced leave because of his 
failure to submit to the third psychiatric fitness-for-duty 
examination. The appellant argues that OMP's regulations precluded the 
agency from ordering the final psychiatric fitness-for-duty 
examination, and the record contains no evidence that the agency 
ordered the appellant to undergo a physical examination prior to doing 
so, as required by 5 CFR Sec. 339.301(e)(i). the agency has not argued, 
and the record does not show, that subsection (e) (ii) is applicable.
    The Postal Service's Employee and Labor Relations Manual (ELM) 
permits management to order psychiatric examinations. In at least two 
cases, the Board has relied on the ELM as authority for the Postal 
Service to order psychiatric examinations, without mentioning Part 339 
of Title 5. See Sellman v. U.S. Postal Service, 63 M.S.P.R. 145, 152 
(1994), and Gannon v. U.S. Postal Service, 61 M.S.P.R. 41, 44 (1994). 
However, it appears that the ELM is inconsistent with several portions 
of Part 339, and the Board has held that an agency may not discipline 
an employee for disobeying an order to submit to a psychiatric 
examination that was invalid under 5 CFR Sec. 339.301. See Harris v. 
Department of the Air Force, 62 M.S.P.R. 524, 528-29, review dismissed, 
39 F.3d 1195 (Fed. Cir. 1994) (Table). The Board has not specifically 
determined whether 5 CFR part 339 applies to the Postal Service. Under 
39 U.S.C. Sec. 410(a), Federal laws regarding employees do not apply to 
the Postal Service, unless they are made specifically applicable.
    The members of the Board therefore have requested that the Director 
provide an advisory opinion on whether OPM intended 5 CFR part 339 to 
apply to the Postal Service and, if so, whether OPM has the authority 
to regulate the Postal Service in this area, considering that the 
Postal Service is generally exempt from Title 5 of the United States 
Code.

DATES: All briefs in response to this notice shall be filed with the 
Clerk of the Board on or before September 1, 2000.

ADDRESSES: All briefs should include the case name and docket numbers 
noted above (Jerry Gribcheck v. U.S. Postal Service, MSPB Docket Nos. 
CH-0752-99-0002-I-1, CH-0752-99-0014-I-1, CH-0752-99-0337-I-1) and be 
entitled ``Amicus Brief.'' Briefs should be filed with the Office of 
the Clerk, Merit Systems Protection Board, 1615 M Street, NW., 
Washington, DC 20419. FOR FURTHER INFORMATION CONTACT: Shannon 
McCarthy, Deputy Clerk of the Board, or Matthew Shannon, Counsel to the 
Clerk, (202) 653-7200.

    Dated: July 27, 2000.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 00-19463 Filed 8-1-00; 8:45 am]
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