[Federal Register Volume 76, Number 142 (Monday, July 25, 2011)]
[Notices]
[Pages 44373-44374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18647]



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MERIT SYSTEMS PROTECTION BOARD




Notice of Opportunity To File Amicus Briefs



AGENCY: Merit Systems Protection Board (MSPB or Board).



ACTION: Notice.



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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) Sec.  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 Sec. Sec.  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



[[Page 44374]]



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 Sec.  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 8\1/2\ 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; (202) 653-7200; [email protected].



William D. Spencer,

Clerk of the Board.

[FR Doc. 2011-18647 Filed 7-22-11; 8:45 am]

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