UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOAN M. YOUNG,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

AT-0752-09-0177-C-2

DATE: January 9, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Joan M. Young, Columbia, Tennessee, pro se.

Dana E. Morris, Esquire, Memphis, Tennessee, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the compliance initial

decision which granted the agency’s petition for enforcement and denied her

cross-petition for enforcement. Generally, we grant petitions such as this one 

only when: the initial decision contains erroneous findings of material fact; the 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

initial decision is based on an erroneous interpretation of statute or regulation or 

the erroneous application of the law to the facts of the case; the judge’s rulings 

during either the course of the appeal or the initial decision were not consistent 

with required procedures or involved an abuse of discretion, and the resulting 

error affected the outcome of the case; or new and material evidence or legal 

argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See Title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, and based on the following points and authorities, we conclude that the 

petitioner has not established any basis under section 1201.115 for granting the 

petition for review. Therefore, we DENY the petition for review and AFFIRM 

the compliance initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

¶2 In our most recent order in this case, the Board denied the appellant’s 

petition for review challenging the validity of a settlement agreement and 

forwarded both the appellant’s and the agency’s allegations of noncompliance to 

the regional office for docketing as cross-petitions for enforcement. See Young v. 

U.S. Postal Service, MSPB Docket No. AT-0752-09-0177-I-1, Final Order at 2

(Feb. 3, 2014). In that order, the Board found the appellant’s challenge to the 

validity of the settlement agreement resolving her enforced leave appeal 

premature because it focused on the legality of a contingent clause that had not, 

and may never be, triggered. Final Order at 5. In reviewing the parties’ 

submissions, however, the Board found that both parties alleged that the other 

was in noncompliance with the primary terms of the settlement agreement, and 

we forwarded the parties’ allegations to the regional office for consideration in 

the first instance. Final Order at 2, 7. 

¶3 Upon receiving the petition and cross-petition for enforcement, the 

administrative judge took additional argument from the parties and issued a 

compliance initial decision finding that the agency was in compliance with the 
3

settlement agreement and that the appellant was not in compliance. MSPB 

Docket No. AT-0752-09-0177-C-2 (C-2), Compliance File (CF), Tab 11, 

Compliance Initial Decision (CID) at 2. In reaching these findings, the 

administrative judge rejected the appellant’s argument that the agency will breach 

the terms of the settlement if it submits certain questions to the appellant’s 

forensic psychiatrist concerning her fitness for duty because the questions the 

agency proposes to submit “are tailored to elicit information from the examining 

psychiatrist regarding the risk of harm posed by the appellant’s performance in 

the position at issue.” CID at 5; C-2, CF, Tab 10 at 10 (listing of agency 

questions). The administrative judge found this line of anticipated questioning 

consistent with the Board’s prior order which confirmed that, under the terms of 

the settlement agreement, the agency may communicate with the appellant’s 

examining psychiatrist to the extent necessary to provide the job requirements 

and standards that the appellant must meet to be deemed medically capable of 

returning to her former position. CID at 5; see Young v. U.S. Postal 

Service, 117 M.S.P.R. 211, ¶ 20, aff’d, 494 F. App’x 65 (Fed. Cir. 2012). In his 

compliance initial decision, the administrative judge also found that the appellant 

was not in compliance with the settlement agreement because she had failed to 

choose a forensic psychiatrist to conduct the independent medical examination 

within the time period specified by the settlement agreement, and he ordered her 

to comply with the terms of the settlement agreement by choosing and paying for 

a forensic psychiatrist and undergoing an independent medical examination 

within 3 weeks of the order becoming final. CID at 5-7.

¶4 The appellant has filed a petition for review of the compliance initial 

decision in which she raises several challenges to both the Board’s most recent 

final order and a previous decision issued by the U.S. Court of Appeals for the 
4

Federal Circuit. C-2, Petition for Review (PFR) File, Tab 5 at 15-22.

2

 The 

agency has filed a response in opposition to the petition for review, and the 

appellant has filed a reply. PFR File, Tabs 10-11.

¶5 We have reviewed both the administrative judge’s compliance initial 

decision and the appellant’s petition for review, and we find no reason to disturb 

the administrative judge’s findings that the agency is in compliance with the 

settlement agreement and that the appellant is not. As suggested above, this is 

not the first time a petition for enforcement has been filed in this case. The 

Board has previously found that the agency breached the terms of the settlement 

agreement by providing certain agency records to the appellant’s forensic 

psychiatrist and interfering with the independent nature of the medical 

examination. See Young, 117 M.S.P.R. 211, ¶¶ 15, 17. In reaching this 

conclusion, however, the Board specified that the agency was permitted to 

provide the forensic psychiatrist with agency records “to the extent necessary to 

provide the examining psychiatrist with the appellant’s job requirements and the 

standards she must meet to be deemed medically capable of returning to her 

former position.” Id., ¶ 14; see id., ¶ 20. 

¶6 The administrative judge concluded in the instant petition for enforcement

that the agency’s proposed questions concerning the appellant’s abilities to 

perform the functions of her former position without creating a substantial risk of 

harm to herself or others fell within this permissible category of information. 

CID at 4-5. We agree that these questions address the agency’s general “job 

requirements and standards that the appellant must meet to be deemed medically 

capable of returning to her former position,” Young, 117 M.S.P.R. 211, ¶ 20; see

C-2, CF, Tab 5 at 7, and we find that the appellant has failed to establish that this 

information interferes with the independence of the medical examination, see

 2 To the extent the appellant contests the Board’s prior final order finding her challenge 

to the validity of the settlement agreement premature, we find that the appellant has 

presented no basis for us to reconsider our prior final order. See 5 C.F.R. § 1201.118.
5

Brown v. U.S. Postal Service, 88 M.S.P.R. 113, 115 (2001) (the party seeking 

compliance bears the burden of proof on a petition for enforcement); CID at 5 

(citing and discussing the agency’s management instruction concerning the scope 

and purpose of a fitness for duty examination). As the Board previously 

explained, pursuant to the terms of the settlement agreement, the agency must be 

allowed to provide some basic information to the appellant’s forensic psychiatrist 

in order for him or her to conduct a meaningful medical examination to determine 

if the appellant is medically capable of returning to her former position. See

Young, 117 M.S.P.R. 211, ¶ 14; see also Young, 494 F. App’x at 67. We thus 

concur with the administrative judge that the agency will not breach the 

settlement agreement by submitting the proposed questions to the forensic 

psychiatrist. CID at 4-5; see C-2, CF, Tab 10 at 10, Tab 5 at 16-17. 3

¶7 We further agree with the administrative judge that the agency has 

established that the appellant is in noncompliance with the settlement agreement 

based upon her failure to select a new forensic psychiatrist and undergo an 

independent medical examination. CID at 5-6; see Young, 117 M.S.P.R. 211, 

¶¶ 17, 19 (permitting the appellant to select a new forensic psychiatrist following 

the agency’s breach of the settlement agreement). The record reflects that the 

appellant has not yet made her selection or undergone the independent medical 

assessment as outlined in the settlement agreement, and we agree with the 

administrative judge that the appellant is in noncompliance with the settlement

agreement based upon her failure to do so. CID at 5.

 3 Although the document containing these questions was discussed at length in the 

Board’s prior Opinion and Order finding the agency in noncompliance, neither the 

Board nor the Federal Circuit found that the questions contained within this document 

interfered with the independent nature of the forensic psychiatrist’s examination. See

Young, 117 M.S.P.R. 211, ¶¶ 6, 15 (finding that the agency’s identification of specific 

medical conditions, and its request that the psychiatrist provide a forensic analysis of 

these conditions, interfered with the medical independence of the fitness for duty 

examination); see also Young, 494 F. App’x at 67. We are not convinced by the 

appellant’s argument on review that this issue has already been resolved by the Board in 

its prior decisions. See, e.g., PFR File, Tab 5 at 20-21.
6

¶8 For the aforementioned reasons, the administrative judge’s compliance 

initial decision finding the agency in compliance with the settlement agreement 

and the appellant in noncompliance with the agreement is AFFIRMED, and the 

appellant’s petition for review is DENIED. The appellant is hereby ORDERED 

to choose and pay for a forensic psychiatrist and to submit to an independent 

medical examination to assess her current medical restrictions within 3 weeks of 

the date of the Board’s order becoming final. See Young, 117 M.S.P.R. 211, 

¶¶ 18-20. The appellant must notify the agency of the forensic psychiatrist’s 

name as soon as the appointment is made and no later than 4 days prior to the 

date of the appointment.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 
7

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court's website, www.cafc.uscourts.gov. 

Of particular relevance is the court's "Guide for Pro Se Petitioners and 

Appellants," which is contained within the court's Rules of Practice, and Forms 5, 

6, and 11.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems 

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board