[Federal Register Volume 67, Number 215 (Wednesday, November 6, 2002)]
[Notices]
[Pages 67661-67662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28254]


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MERIT SYSTEMS PROTECTION BOARD

[MSPB Docket No. SF-844E-01-0309-B-1]


Opportunity To File Amicus Briefs in Visitacion Ancheta v. Office 
of Personnel Management

AGENCY: Merit Systems Protection Board.

ACTION: The Merit Systems Protection Board has issued an opinion and 
order in the above-captioned case, in which it notes that it is seeking 
amicus briefs from interested parties. The issues that the Board would 
like any amicus brief to address are set forth in the Summary below. 
The Board's decision can also be accessed on the Board's Web site, 
www.mspb.gov.

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SUMMARY: The appellant petitioned for review of an initial decision 
that affirmed a denial by the Office of Personnel Management (OPM) of 
her application for disability retirement. In April, 1994, the 
appellant was appointed to a City Carrier position in the U.S. Postal 
Service. About a year later, in July, 1995, she sustained a work-
related injury, subsequently stopped working, and began receiving 
compensation for wage-loss from the Office of Workers' Compensation 
Programs (OWCP). In August, 1997, she accepted the Postal Service's 
``(r)ehab job offer'' of a Modified Letter Carrier (MLC) position, and 
returned to work. Effective February 10, 1998, she was removed from her 
City Carrier position for misconduct.
    The appellant then filed an application for disability retirement 
under the Federal Employees' Retirement System (FERS). OPM denied the 
application in initial and reconsideration decisions, finding that she 
failed to establish she was disabled from performing the duties of the 
MLC position prior to her removal for misconduct. On appeal to the 
Board, the administrative judge (AJ) held a hearing and then issued the 
initial decision affirming OPM's final decision on the same grounds set 
forth by OPM. He found that: (1) The agency had, in effect, been able 
to accommodate the appellant's medical restrictions in the MLC 
position; and (2) the appellant did not show that she was unable to 
work in that position because of a disabling medical condition. The 
appellant timely filed a petition for review, arguing that the AJ erred 
by finding her capable of performing the MLC duties. OPM timely filed a 
response opposing the appellant's petition.
    A claim for disability retirement under FERS may be allowed only if 
an application is filed with OPM before separation from the service or 
within one year thereafter, unless waiver of this time limit is 
warranted for mental incompetence. 5 U.S.C. 8453; 5 CFR 844.201(a). 
Upon filing a timely application, the applicant must establish that: 
(1) She completed at least eighteen months of creditable civilian 
service; (2) she was unable, because of disease or injury, to render 
useful and efficient service in her position; (3) her disabling medical 
condition is expected to continue for at least one year from the date 
the application is filed; (4) she was not afforded reasonable 
accommodation of her disabling condition in her position; and (5) she 
has not declined a reasonable offer of reassignment to a vacant 
position in the employing agency for which she is qualified, at the 
same or greater grade (or pay level), in her commuting area, and in 
which she is able to render useful and efficient service. 5 U.S.C. 
8451(a); 5 CFR 844.103(a).
    The record shows, and it is undisputed, that the appellant timely 
filed her application for disability retirement and that she had 
completed at least eighteen months of creditable civilian service. Both 
the AJ and OPM found that the appellant did not show she was disabled 
from performing the duties of the MLC position. However,

[[Page 67662]]

neither considered whether the court's decision in Bracey v. Office of 
Personnel Management, 236 F.3d 1356 (Fed. Cir. 2001), applied to this 
case. The Board thus found that further proceedings to address this are 
necessary.
    In Bracey, the Board's reviewing court considered whether an 
employee's assignment to the light-duty shop, where he retained the 
grade and pay of his Electronics Worker position of record but 
performed the lower-graded duties of Material Examiner and Identifier, 
constituted an accommodation precluding his disability retirement under 
the Civil Service Retirement System. The court held that an 
accommodation precludes disability retirement only if it: (1) Adjusts 
the employee's job or work environment, enabling him to perform the 
critical or essential duties of his current position of record, or (2) 
reassigns the employee to an established, vacant position at the same 
grade and pay. 236 F.3d at 1358-59, 1361.
    The court explained that an agency's offer of a light duty position 
that is not officially classified and graded and consists of 
unclassified, ad hoc duties devised to fit an employee's particular 
medical restrictions does not qualify as a ``vacant position,'' as that 
term is used in 5 U.S.C. 8337(a) and 5 CFR 831.1202, and therefore does 
not preclude disability retirement. Id. at 1359-60. The court in Bracey 
acknowledged that an employing agency may offer suitable work, under 
the Federal Employees' Compensation Act (FECA), which the employee must 
accept to continue receiving FECA benefits. 236 F.3d at 1362. The court 
stated, however, that ``the employee is free to refuse the offer of 
such work and to take disability retirement instead of the FECA 
benefits' and that ``there is nothing anomalous about the fact that an 
employee may be eligible for one set of benefits while being ineligible 
for the other.'' Id. The court thus concluded that Bracey's assignment 
to the light-duty shop did not constitute an accommodation within his 
position of record since he did not perform the critical and essential 
duties of the position but performed lower-graded duties instead. Id. 
at 1360-61. The court further concluded that the assignment did not 
constitute a reassignment to a vacant position since the light duty 
position consisted of ``a set of duties selected on an ad hoc basis to 
fit the needs of a particular disabled employee'' and was not a 
definite, preexisting position that is classified and graded according 
to its duties, responsibilities, and qualification requirements. Id. at 
1359-60. In Marino v. Office of Personnel Management, 243 F.3d 1375, 
1377 (Fed. Cir. 2001), the court held that this holding in Bracey 
applies equally to disability retirement applications under FERS, such 
as is involved here.
    In finding that a ``vacant position,'' as that term is used in the 
retirement statute and regulations, must be ``an officially established 
position that is graded and classified,'' 236 F.3d at 1359, the court 
relied on 5 U.S.C. 5101(2), which requires that positions in agencies 
covered by 5 U.S.C. 5102 be ``grouped and identified by classes and 
grades * * *'' Id. at 1359-60. In Bracey, the appellant's employing 
agency, the Department of the Navy, was an executive agency and 
therefore covered by 5 U.S.C. 5101. See 5 U.S.C. 5102. In this case, 
however, the appellant was employed by the Postal Service, which is not 
an agency covered by section 5101. See Robinson v. U.S. Postal Service, 
63 M.S.P.R. 307, 320 (1994)(acknowledging that the Postal Service is 
not covered by section 5101 but concluding, that, for RIF purposes, 
that agency was required to follow general classification principles, 
such as assigning grade levels to positions rather than to employees). 
In her dissenting opinion in Bracey v. Office of Personnel Management, 
83 M.S.P.R. 400, 421 n.5 (1999), then-Vice Chair Slavet questioned 
whether the factors pertinent to the accommodation issue in that case 
might be inapplicable to disability retirement appeals involving the 
Postal Service. She noted that the Postal Service is exempt from 
``[m]any aspects of the executive branch personnel system,'' such as 
Title 5 classification rules, and is governed by a collective 
bargaining agreement that may bind the agency in accommodating disabled 
employees. Id. She found it unnecessary to resolve this question since 
Bracey did not involve the Postal Service, nor did the court address 
this issue. However, this issue is squarely presented in this case, 
which involves a former Postal Service employee who was covered by a 
collective bargaining agreement. The appellant was covered by the 
agreement between the Postal Service and the National Association of 
Letter Carriers, AFL-CIO.
    Therefore, because the Board has not heretofore considered whether 
Bracey applies in the context of the Postal Service, the Board requests 
amicus briefs from the USPS, its bargaining agents, and all other 
interested individuals or organizations on this issue.

DATES: All briefs in response to this notice shall be filed with the 
Board's Western Regional Office on or before December 31, 2002.

ADDRESSES: All briefs should include the case name and docket number 
noted above (Visitacion Ancheta v. Office of Personnel Management, 
Docket No. SF-844E-01-0309-B-1) and be entitled ``Amicus Brief.'' 
Briefs should be filed with the Western Regional Office, Merit Systems 
Protection Board, 250 Montgomery Street, Suite 400, San Francisco, CA 
94104.

FOR FURTHER INFORMATION CONTACT: Shannon McCarthy, Deputy Clerk of the 
Board, or Matthew Shannon, Counsel to the Clerk, (202) 653-7200.

    Dated: November 1, 2001.
Bentley M. Roberts, Jr.,
Clerk of the Board.
[FR Doc. 02-28254 Filed 11-5-02; 8:45 am]
BILLING CODE 7400-01-P