an injured employee, though not ready to resume the full range of
his or her regular duties, has recovered sufficiently to return to

part-time or light duty or to another position with less demanding
physical requirements. Ordinarily, it is expected that a partially
recovered employee will fully recover eventually.

Jd. (emphasis added).

‘Second, the current regulations restated the rights of physically disqualified and
partially recovered employees. For the (newly defined) physically disqualified employee,
the existing rights under the regulations remained unchanged, but they were expanded to
extend beyond 1 year for the date of compensation eligibility under FECA. The new
regulations added this provision: “After 1 year, the individual is entitled to the rights
accorded individuals who fully or partially recover, as applicable.” 5 C.F.R. §
353.301(c). But for the (newly defined) partially recovered employee, the changes were
more substantial, Much like the provision affecting physically disqualified employees,
the existing provision was maintained. But, unlike the physically disqualified changes,
the additional material in the partially recovered provision significantly affected the
meaning of the retained content. The full text of the current version is set forth below.
The first sentence comprised the prior regulation in its entirety, except that the local
commuting area limitation did not exist in the prior regulation; it was, however, a feature
of the accompanying provisions of the Federal Personnel Manual:

Agencies must make every effort to restore in the local commuting
area, according to the circumstances in each case, an individual
who has partially recovered from a compensable injury and who is
able to return to limited duty. At a minimum, this would mean
treating these employees substantially the same as other
handicapped individuals under the Rehabilitation Act of 1973, as
amended. (See 29 U.S.C. 791(b) and 794.) If the individual fully

recovers, he or she is entitled to be considered for the position held
at the time of injury, or an equivalent one. A partially recovered

15

Pleading Number [z. Submission date : 2011-08-24 14:15:48, Confirmation Nurbe Ca! page 20 of 37



Arleather Reaves
Appellant

Agency's Opening Brief

US Postal Mail

Cyfithia E. Lundy
Appellant

t

Agency's Opening Brief

US Postal Mail

J.R. Pritchett
Appellant Representative

Postal Employee Advocates 86 East
Merrill Road

McCammon, ID 83250

USA.

Agency's Opening Brief

US Postal Mail

Geraldine Manzo
[Appellant Representative

7700 Edgewater Drive Suite 656
(Oakland, CA 94621
USA

[Agency's Opening Brief

US Postal Mail

James A. Penna
Appellant Representative

3212 Villa Pl.
Amarillo, TX 79106
USA

Agency's Opening Brief

US Postal Mail

Barton Jay Powell
Other

7559 Waterford Drive
Hanover Park, IL 60133

Agency's Opening Brief

US Postal Mail

Pleading Number Qa, Submission date : 2011-08-24 14:15:48

Confirmation Number aD

page 37 of 37


and b) relocation of FECA reemployment rights to their original 1966 code location
along side FECA’s other substantive provisions — this time in FECA’s new home in

chapter 81 of title 5.

- Subchapter I of chapter 81 of the Act is amended by adding the following
new section:

“§ 8151. Civil service retention rights

“(a) In the event the individual resumes employment with the Federal
Government, the entire time during which the employee was receiving
compensation under this chapter shall be credited to the employee for
purposes of within-grade step increases, retention purposes, and other
rights and benefits based upon length of service.

“(b) Under regulations issued by the Civil Service Commission —

“(1) the department or agency which was the last employer shall
immediately and unconditionally accord the employee, if the injury
or disability has been overcome within one year after the date of
commencement of compensation or from the time compensable
disability recurs if the’ recurrence begins after the injured employee
resumes regular full-time employment with the United States, the
right to resume his former or an equivalent position, as well as all
other attendant rights which the employee would have had, or
acquired, in his former position had he not been injured or
disabled, including the rights to tenure, promotion, and safeguards
in reductions-in-force procedures, and

“(2) the department or agency which was the last employer shall, if
the injury or disability is overcome within a period of more than
one year after the date of commencement of compensation, make
all reasonable efforts to place, and accord priority to placing, the
employee in his former or equivalent position within such
department or agency, within any other department or agency.”

“(c) Section 3315a of title 5, United States Code, is repealed upon. the
effective date of this section.

Pub. L. No. 93-416, § 22. But see S. Rep. 93-1081 (1974), reprinted in 1974
U.S.C.C.A.N. 5341 (“The Committee also wishes to make clear that the Civil Service

Commission is authorized to promulgate regulations covering the rights of employees

9
Pleading Number gM, Submission date : 2011-08-24 14:15:48 Confirmation Number

page 14 of 37


arbitrator to provide Limited Duty, it is also true that arbitrators have frequently declined
to do so. See, e.g., In re Arbitration between U.S. Postal Service and National
Association of Letter Carriers, Case No. JO6N-4J-C 09115744 (May 25, 2010) ( Jacobs,
Arb.); Jn re Arbitration between U.S. Postal Service and National Association of Letter
Carriers, Case No. HO6N-4H-C 11015197 (Apr. 21, 2011) (Bahakel, Arb.); In re
Arbitration between U.S. Postal Service and National Association of Letter Carriers,
Case No. FO6N-4F-L 09256652 (Feb. 2, 2011) (Ames, Arb.). These cases tum on case-
specific facts concerning the ability of the grievant, the availability of work, the type of
work that the Postal Service must offer, and whether the Postal Service’s search for work
was adequate.

In terms of the substance of ELM § 546 and Handbook EL-505, the starting point
is the ELM provision governing employees who have partially overcome a work-related
illness or injury. It provides that “{w]hen an employee has partially overcome a
compensable disability, the Postal Service must make every effort toward assigning the
employee to limited duty consistent with the employee’s medically defined work
limitation tolerance.” ELM § 546.142(a).’ There is a fundamental aspect of this
provision that bears emphasis both because it is relevant to the Board’s deliberations and
because it revolves around a concept that is distinct from a similar concept in the FECA
reemployment regulations. In the ELM, “partially overcome” is not synonymous with
“partially recovered” in 5 C.F.R. § 353.102. It instead intends to encompass both
“partially recovered” and “physically disqualified” employees as defined under part 353.

The ELM describes the meaning of “partially overcome” as follows:

7 Section 546.142 goes on to list the order in which the Postal Service should search specific locations —
worksites, shifts, and crafts — for appropriate work. The section of the ELM is colloquially referred to as
the “pecking order.”

19
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Table of Contents

STATEMENT OF THE CASE. 1

SUMMARY OF ARGUMENT: 3

STATEMENT OF FACTS 6

a. The Statutory Framework for FECA Reemployment Rights 6

b. The Regulatory Framework for FECA Reemployment Rights 12

c. Other Provisions of FECA That Affect the Retum to Work of FECA 16
‘Claimants :

d. The Postal Service’s Internal Rules and Processes Benefiting 7
Employees With Work-Related Illnesses or Injuries

ARGUMENT 23

A. THE BOARD LACKS JURISDICTION UNDER 23

~ 5 C.F.R. § 353.301(d) BECAUSE THE REGULATION
EXCEEDS ITS STATUTORY AUTHORITY

1. The Object Of A Restoration Under FECA May OnlyBeA = 23
egular Workforce Positi

2. The Subject of A Restoration Under FECA May Only Be 25
A Fully Recovered Worker

3. The Postal Service’s Rules Are Established Elements 27
of Its Coliective-Bargainin, nts
B. EXPANDING THE BOARDS JURISDICTION 29

UNDER 5 C.F.R. § 353.301(d) WOULD
INAPPROPRIATELY INVOLVE THE BOARD
IN THE ACTIVITIES OF OWCP

CONCLUSION 30

Pleading Number ql ‘Submission date : 2011-08-24 14:15:48 Confirmation ui page 5 of 37

=——


interferes with OWCP functions or conflicts with the OWCP’s enforcement philosophy.
For example, while OWCP encourages employees and agencies to informally resume
their relationship as soon as possible after an illness or injury, it will not penalize an
employee’s failure to accept a limited or light duty offer from his or her agency unless the
offer was for “suitable work” under OWCP rules, See FECA Procedure Manual — Part 2,
Claims, at 2-0814-4(b). Under the suitable work rules, employment offers of less than
four hours of work per day when the employee is capable of working four or more hours,
or employment offers that are for temporary jobs (except for temporary employees) are
generally considered unsuitable. _ If an offer is not suitable, an employee’s decision to
refuse it does not impact the receipt of compensation. Yet, should the Board expand its
jurisdiction under 5 C.F.R. § 353.301(d), it would likely find that agencies are required to
make “every effort” to offer work that employees are entitled to refuse under FECA.
That sort of administrative inconsistency should be avoided.
CONCLUSION

For the reasons described here, the Board should, at a minimum, follow its

existing authority and read 5 C.F.R. § 353.301(d) to only require an effort to place FECA

claimants in regular positions in the agencies’ workforces.

Respectfully submitted,
William D. Bubb
Agency Representative

August 24, 2011

30
Pleading Number SQM, Submission date : 2011-08-24 14:15:48 Confirmation Nunbe Qa page 35 of 37


employee is expected to seek reemployment as soon as he or she is
able.

5 CFR. § 353.301(d).

The overall effect of the 1995 amendments was to make even more plain that
they exceed their statutory authorization. The current regulations imply that a return to
“part-time or light duty” is included in FECA’s restoration obligation, something FECA
itself has never authorized.® And the regulations emphasize that they intend to provide
restoration rights to person who are not fully recovered, again exceeding FECA’s plain
language. The only factor that at least partially saves these regulations today is the fact
that the Board currently reads them to only afford restoration rights to regular positions.
c, Other Provisions of FECA That Affect the Retum to Work of FECA Claimants

Other provisions of FECA, administered by the Secretary of Labor through the
Office of Workers’ Compensation Programs (“OWCP”), provide valuable context to the
Board consideration of the issues in this case.

_ OWCP has the authority to withhold compensation from partially disabled
employees who refuse to seek or accept “suitable work.” 5 U.S.C. § 8106(c). But it also
encourages the retum to work of FECA claimants, regardless of whether the work offered
is a regular position in the agency’s workforce and without regard to whether the offer is
required under FECA’s reemployment rights provisions. OWCP regulations explain that
“where the employer has no specific alternative positions available for an employee who
can perform restricted or limited duties, the employer should advise the employee of any

accommodations the agency can make to accommodate the employee’s limitations due to

°5 CAR. § 353.102 provides: “Partially recovered means an injured employee, though not Teady to
resume the full range of his or her regular duties, has recovered sufficiently to return to part-time or light
duty or to another position with less demanding physical requirements.”

16

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— The assignment should be a function where temporary
additional help is useful. This will help ensure that injured
employees make a useful contribution to the organization.

Handbook EL-505 at 163.

In contrast, Handbook EL-505 takes a different approach to Rehabilitation

Assignments. The overview to chapter 11 describes the Rehabilitation Program this way:

The Joint DOL-USPS Rehabilitation Program was developed to
fulfill the USPS legal obligation to provide work for injured-on-
duty (IOD) eniployees. Providing gainful employment within
medically defined work restrictions has proven to be in the best
interest of both the employee and the USPS. In many cases,
retuming to work has aided the employee in reaching maximum
recovery. This program is also one of the most viable means of

-controlling workers’ compensation costs.

Over the years, an in-house rehabilitation program has evolved and
has been incorporated into the Rehabilitation Program as a means
of facilitating the proper placement and accommodation of current
employees with permanent partial disabilities resulting from
injuries on duty. This program is also appropriate for reassigning
to permanent modified positions employees who have not received
compensation but have been in temporary limited duty assignments
for an extended period of time.

From December 1978 to May 1979, DOL and the USPS conducted
a pilot program for the rehabilitation of injured USPS workers
through reemployment. From that pilot program, procedures and
forms were developed that provided the basis for the original
guidelines issued in October 1979 and for Handbook EL-515, Joint
Rehabilitation Guidelines (issued in May 1992), now being made a
part of this handbook. The Rehabilitation Program is applicable for
both former and current USPS employees on OWCP rolls.

Handbook EL-505 at 259. As for identifying Rehabilitation Assignments, Handbook EL-

505 focuses on permanent assignments to existing positions in the workforce — to the

employee’s current position if it can be performed with minor modifications;?

° The Postal Service reads “minor modification” to mean the elimination of non-essential duties within the
meaning of a reasonable accommodation under the Rehabilitation Act.

22

Pleading Number [EE Submission date : 2011-08-24 14:15:48 Confirmation Number

page 27 of 37


Pleading Number : QUEM, Submission date : 2011-08-24 14:15:48

Service Employee and Labor Relations Manual (“ELM”); and Handbook EL-505 —
Injury Compensation. Both are “regulations of the Postal Service.” 39 C.F.R. §§
211.2(a)(2)-(3). It is also the case, as the Consolidation Order implicitly recognizes, that
the Postal Service’s rules and regulations are enforceable under the grievance procedures
in the several collective-bargaining agreements covering its workforce. While the
following example is from the Postal Service’s agreement with the National Association
of Letter Carriers, it is illustrative of provisions that appear in each of the Postal Service’s
collective-bargaining agreements.
Those parts of all handbooks, manuals arid published regulations of

the Postal Service, that directly relate to wages, hours or working

conditions, as they apply to employees covered by this Agreement, shall

contain nothing that conflicts with this Agreement, and shall be continued

in effect except that the Employer shall have the right to make changes

that are not inconsistent with this Agreement and that are fair, reasonable,

and equitable.
Agreement Between the United States Postal Service and the National Association of
Letter Carriers, AFL-CIO, Article 19 (2006). So, while the Postal Service could make
changes to the ELM and its Handbooks if the changes were “fair, reasonable, and
equitable” and were consistent with each of its collective-bargaining agreements (and
complied with some related procedural requirements relating to notice and consultation
with the unions), ELM § 546 and Handbook EL-505 are in the meantime enforceable
against the Postal Service as a matter of contract.

Both Limited Duty and Rehabilitation Assignments are not automatic under ELM
§ 546 and Handbook EL-505. While the attempt to identify Limited Duty and
Rehabilitation Assignments is guaranteed, an assignment is not. While it is true, as the

Board’s Consolidation Order points out, the Postal Service has often been ordered by an

18

Confirmation Number <q page 23 of 37


Certificate Of Service

e-Appeal has handled service of the assembled pleading to MSPB and the following Parties.

Name & Address Documents Method of Service
MSPB: Office of the Clerk of the Agency's Opening Brief —_| e-Appeal / e-Mail
Board

Marcella Albright Agency's Opening Brief —_| e-Appeal / e-Mail
Appellant

Thomas William Albright Agency's Opening Brief —_| e-Appeal / e-Mail
Appellant Representative

Earl L. Cotton, Sr., Esq. Agency's Opening Brief —_| e-Appeal / e-Mail
Agency Representative

Joshua T. Klipp, Esq. Agency's Opening Brief —_| e-Appeal / e-Mail
Agency Representative

Andrew C. Friedman, Esq. Agency's Opening Brief —_| e-Appeal / e-Mail
Agency Representative

Theresa M. Gegen Agency's Opening Brief —_| e-Appeal / e-Mail
Agency Representative

Ayoka Campbell Agency's Opening Brief —_| e-Appeal / e-Mail
Agency Representative

end of next business day, as follows:

I agree to send a printed copy of the electronic pleading with attachments to non-efilers by the

Appellant

Name & Address Documents Method of Service
James C, Latham Agency's Opening Brief — | US Postal Mail
Appellant

Ruby N. Tumer Agency's Opening Brief — | US Postal Mail

Pleading Nunc: Qi, Submission date : 2011-08-24 14:15:48

Confirmation Number IIIS page 96 of 37



for more information on how this may be accomplished for the
excepted and competitive services, respectively.)

5 CFR. § 353.303 (1989). Again, this provision was consistent with regulatory
authority granted by 5 U.S.C. § 8151(b).
Third, the 1989 regulations provided that an employee
who is physically disqualified for the former position or equivalent
because . . . of compensable injury shall be placed in the agency in
another position for which qualified that will provide the employee
with the same seniority, status, and pay, or. the nearest
approximation consistent with the circumstances in each case. . . .
[T]his right applies for a period of 1 year from the date
compensation begins. .
5 C.E.R. § 353,302 (1989). This provision is inconsistent with the regulatory authority
granted by 5 U.S.C. § 8151(b). The only way to deem this regulation to have been
statutorily authorized (and therefore enforceable) is to ignore the stated limits of §
8151(b) and accept and apply the explanation in the legislative history that the
government is “authorized to promulgate regulations covering the rights of employees
whose injuries or disabilities are partially overcome, as well as those who have fully
overcome their disabilities.” S. Rep. 93-1081 at 4, 1974 U.S.C.C.AN. at 5344.

Finally, the 1989 regulations provided that “[a]gencies must make every effort to
restore, according to the circumstances in each case, an employee or former employee
who has partially recovered from a compensable injury and who is able to retum to
limited duty.” 5 CER. § 353.304 (1989).> Viewed in context, this provision of the 1989
regulations is perplexing. For example, it is subject to the same analytical fault as 5

C.F.R. § 353.302 (1989) because it exceeds the statute’s grant of reemployment rights

5 The provisions in the 1989 regulations granting jurisdiction to the Board are essentially identical to those
contained in the current regulations, including the arbitrary and capricious standard of review for partially
recovered employees.

13

Pleading Number 009M. Submission date : 2011-08-24 14:15:48 Confirmation Number QM, page 18 of 37



these fundamental substantive and procedural features of the Postal Service’s

collective-bargaining relationships.
B. The Board’s second question cannot be answered succinctly because it proceeds from
a false assumption. It equates an agency rule that grants limited work (not a regular
position) with a “restoration obligation” under FECA. As described in Argument A, such
a rule can never comprise a restoration obligation under FECA because the rule’s subject
matter is not within the limitations of the restoration rights FECA specifies.

Depending on the circumstances, ELM § 546 and Handbook EL-505 obligate the
Postal Service to search for work that is not a regular position and offer work if it is
found. These provisions were motivated by a desire to allow workers to enjoy the
salutary effect of returning to work as-soon as possible and by a desire to reduce workers’
compensation expense. And they are in keeping with the Office of Workers’
Compensation Programs’ (“OWCP”) approach to the administration of FECA, which
encourages employment and rehabilitation, independent of FECA’s restoration
provisions. The expansion of jurisdiction being considered by the Board in these
consolidated appeals would transform such voluntary programs to provide employment
into mandatory components of required restoration under FECA. Such a result is
unsupported by FECA’s restoration provisions, is inconsistent with OWCP’s approach to
the administration of FECA, and would encourage agencies to discontinue such

programs.

5

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arbitrators, and not the Board. While the Board may review decisions of federal-sector
arbitrators, it may not review those of Postal Service arbitrators. See, e.g., Anderson v.
US. Postal Service, 109'MSPR 558 (2008);. Marjie v. U.S. Postal Service, 70 M.S.P.R.
95 (1996).

But beyond the contractual nature of ELM § 546 and Handbook EL-505, the
procedures for resolving disputes under the Postal Service’s collective-bargaining
agreements comprise a fundamental feature of the Postal Service’s relationships with its
employees and their unions, and they provide an effective means of enforcing ELM § 546
and EL-505. Postal Service collective bargaining agreements all provide, in their
respective versions of Article 15, that alleged contractual violations may be pursued
through a grievance process culminating in binding arbitration. See, 39 U.S.C. § 1206(b)
(Postal Service collective bargaining agreements “may include any procedures for
resolution by the parties of grievances, including procedures culminating in binding third-
party arbitration... .”). :

There is no reason for the Board to invade these fundamental and substantive
features of the Postal Service’s collective-bargaining relationships, and there is every
reason not to do so. As described above, the contours of ELM § 546 and Handbook EL-
505 are complex, their application is extraordinarily fact-specific, and the final word on
their meaning and application is contractually reserved to the grievance procedure, and

“ultimately an arbitrator. As the arbitration authority described above indicates, there is
complexity — and some controversy — conceming the meaning of ELM § 546 and
Handbook EL-505, particularly when they are applied to the myriad factual situations

that necessarily arise in an organization of the size and organizational diversity of the

28

Pleading Number QQ, Submission date : 2011-08-24 14:18:48 Confirmatjon Number SMM, page 33 of 37


(citing Sapp v. U.S. Postal Service, 73 M.S.P.R. 189, 193-94 (1997); Brunton v. U.S.
Postal Service, 114 M.S.P.R. 365, J 14 (2010) (citing Taber v. Department of the Air
Force, 112 M.S.P.R..124, J 14 (2009). But if § 353.301(d) means something else — for
example if it is read to require the kind of assignments provided by the Postal Service
under chapter 7 of Handbook EL-505 — it is unenforceable. |
In its Consolidation Order, the Board commented that “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
C.F.R. § 353.301(d).” The statutory history of FECA reemployment rights discloses that
this issue as stated presents a red herring. Assuming the Postal Service has established an
agency-specific rule providing partially recovered FECA claimants with rights to Limited
Duty assignments as defined in the ELM and Handbook EL-505, that cannot be deemed
to be an extension of “restoration rights” under FECA for the reasons described here; i.e.,
FECA restoration rights apply only with regard to existing regular positions. Postal
Service employees may have rights under the ELM and Handbook EL-505 to Limited
Duty. Postal Service employees who are covered by collective-bargaining agreements
may have the ability to enforce those rights though the grievance procedures. But those
facts do not transform those rights into restoration rights covered by FECA. Congress
has consistently limited FECA reemployment rights to existing positions in the
workforce.
2. The Subject of A Restoration Under FECA May Only Be A Fully Recovered Worker
Similarly, Congress has restricted FECA reemployment rights to fully recovered

employees.

25
Pleading Nuns Qi, Submission date : 2011-08-24 14:15:48 Confirmation Numbe MMMM page 30 0f 37



However, the Board made the following observations it believed to be
applicable to the consolidated cases.

[I]t 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). [Citation omitted]. Specifically, the
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 Postal
Service Handbook EL-505, Injury Compensation §§ 7.1-7.2
provides that limited duty assignments “are designated 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 resteictions. . [Citation
omitted]. 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.

Consolidation Order 2-3.

Based upon these observations, the Board posited two questions for briefing:
(1)_May a denial of restoration be “arbiteary and capricious”
within the meaning of 5 C.F.R. § 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?

(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?
Consolidation Order 4.
This is the opening brief of the United States Postal Service in response to the

Board’s Consolidation Order. _

2
Pleading Number ii, Submission date : 2011-08-24 14:15:48 Confirmation \unbeq page 7 of 37



I STATEMENT OF THE CASE

“On July 25, 2001, the Merit Systems Protection Board (“the Board”) consolidated
these appeals in order to allow. briefing on “a common issue the Board has not yet
addressed.” Consolidation Order 1. _

The issue identified by the Board centers on the application of 5 C.F.R. §
353.301(d), a section of the regulations promulgated by the Office of Personnel
Management (“OPM”) to administer the restoration rights granted by the Federal
Employees’ Compensation Act (“FECA”), 5 U.S.C. § 8151(b). 5 C.F.R. § 353.301(b)

provides:

Agencies must make every effort to restore in the local commuting
area, according to the circumstances in each case, an individual
who has partially recovered from a compensable injury and who is
able to return to limited duty. At a minimum, this would mean
treating these employees substantially the same as other
handicapped individuals under the Rehabilitation Act of 1973, as
amended. (See 29 U.S.C. 791(b) and 794.) If the individual fully
recovers, he or she is entitled to be considered for the position held
at the time of injury, or an equivalent one. A partially. recovered
employee is expected to seek reemployment as soon as he or she is
able.

5 CR. § 353.301(d).' The Board explained that its current law under § 353.301(d)
requires 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. [Citations omitted],” Consolidation Order 2, and further
explained that “[clonversely, 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. [Citations omitted].” Jd.

"5 CER. § 353.304(c) provides that a “partially recovered” employee may appeal to the Board “for a
determination of whether the agency is acting arbitrarily and capriciously in denying restoration.”

1
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only to employees who fully recover. But another distinct analytical difficulty is
apparent, depending on the meaning of “limited duty.” If the drafters intend limited duty
to refer to something other than an assigmnent to a vacant position, the regulation
exceeds the one fixed star in Congress’ historical grant of reemployment rights under
FECA -— that those rights, regardless of the category or categories of employees to which
they are granted, only convey the right to assume or be considered for a regular position
in the agency’s workforce. Finally, it is difficult in any event to understand 5 C.F.R. §
353.304 (1989), and its relationship to its companion provisions because of the lack of
definitions of the terms “partially recovered” and “physically disqualified.”
Unfortunately for the Board’s efforts to sort out the meaning of the “every effort”
standard in this case, the current regulations suffer even more from ambiguity and
potentially unenforceable content, The current regulations replaced the 1989 version on
January 13, 1995. The relevant changes may be summarized as follows.
First, two new definitions were added. “Physically disqualified” is now defined

to mean that:

(1) @) For medical reasons the employee is unable to perform the

duties of the position formerly held or an equivalent one, or

(ii) There is a medical reason to restrict the individual from some

or all essential- duties because -of possible incapacitation (for

example, a seizure) or because of risk of health impairment (such

as further exposure to a toxic substance for an individual who has

already shown the effects of such exposure).

(2) the condition is considered permanent with little likelihood for
improvement or recovery.

5 CFR. § 353.102 (2011). And of particular note, “partially recovered” is defined to

mean

14

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Pleading Number eas. Submission date : 2011-08-24 14:15:48

the Board. There simply is no basis under FECA to consider or enforce those
efforts.

. FECA grants restoration rights only to fully recovered employees. Because 5
C.F.R. § 353.304(c) is exclusively devoted to purported restoration rights of
“partially recovered” employees, it exceeds OPM’s statutory authority to adopt

. regulations under FECA, is unenforceable, and cannot form the basis for Board
jurisdiction. In the case of a partially recovered employee, any agency
teemployment efforts, whether or not to a regular position in its workforce, do not
comprise restoration under FECA.

. The provisions of ELM § 546 and Handbook EL-505 afford FECA claimants the

Tight to be considered for assignments other than assignments to regular positions.

In doing so, they exceed FECA’s promise of restoration — or priority

consideration for restoration — only to regular positions. They also are

incorporated into thé Postal Service’s collective-bargaining agreements,
agreements that cover the overwhelming majority of the Postal Service’s
workforce, ELM § 546 and Handbook EL-505 are integral to the Postal Service’s
collective-bargaining agreements as a substantive matter. But beyond the
contractual nature of ELM § 546 and Handbook EL-505, the procedures for
resolving disputes under the Postal Service’s collective-bargaining agreements
comprise a fundamental feature of the Postal Service’s relationships with its
employees and their unions, and they provide an effective means of enforcing

ELM § 546 and EL-505. The Board’s jurisdiction does not permit it to invade

4

Confirmation Number Gi. page 9 of 37


The procedures [in ELM § 546.142] for current employees cover
both ‘limited duty and rehabilitation assignments. Limited duty
assignments are provided to employees during the recovery
process when the effects of the injury are considered temporary. A
rehabilitation assignment is provided when the effects of the injury
are considei anent_and/or_the employee has reached

ELM § 546.141 (emphasis added), This temporary/permanent dichotomy and the Postal
Service’s approach to each category are incorporated and illuminated in Handbook EL-
505. -

The Postal Service’s Limited Duty program is described in chapter 7 of Handbook
EL-505. Expressing a philosophy reminiscent of OWCP’s approach to the administration
of FECA, Handbook EL-505 explains:

This chapter addresses limited duty provided to an employee who
has physical limitations identified by a qualified treating physician
stemming from an on-the-job injury or illness. The limited duty
program is designed to accommodate injured employees who are
temporarily unable to perform their regular functions. Effective
utilization and management of limited duty assignments benefits
the USPS as well as the injured employee. These assignments
permit employees to work within their medically prescribed
physical restrictions. Limited duty often accelerates recuperation as
employees generally recuperate faster if they are as active as
possible. Moreover, limited duty employees retain the discipline of
going to work every day, continue their contribution to the USPS,
and are regarded as productive workers. Finally, since limited duty
employees work at the job site, they are often motivated to retum
to their regular job as soon as possible rather than continue doing a
lesser skilled limited duty assignment. Early retum to the regular
job is the ultimate objective of the limited duty program.

Limited duty is an integral aspect of injury compensation program
administration and, if managed effectively, makes a significant
contribution to cost containment and control initiatives.

Handbook EL-505 at 157. In keeping with these principles, chapter 7 establishes

guidelines for both informal and formal Limited Duty programs, but they each have two

20
Pleading Number QMS, Submission date : 2011-08-24 14:15:48 Confirmation Number QM, age 250197


Case Title : JAMES C. LATHAM v. UNITED STATES POSTAL SERVICE

Docket Number : DA-0353-10-0408-I-1
Pleading Title : Agency's Opening Brief
Filer's Name : William D. Bubb, Esq.

Filer's Pleading Role : Agency Representative

N/A

Pleading Nonoe Ci Submission date : 2011-08-24 14:15:48

Confirmation Number ih page 1 of 37


who has been Selatan displaced from his position through no fault of
his own. .

Pub. L. No. 89-488, § 6. See also S. Rep. No. 1285 (1966), reprinted in 1966
US.C.C.A.N. 2430, 2433.

The same year, Congress substantially reorganized title 5, moving FECA to its.
current location in chapter 81. Act of September 6, 1966, Pub. L. No. 898-554, 80 Stat.
531 (1966). However, the newly-minted reemployment rights described above were
omitted (presumably unintentionally) from the restated and relocated version of FECA.
In any event, Congress took additional action related to the reorganization of title 5, see
Act of Aug. 24, 1967, Pub. L. No. 90-83, 81 Stat. 195 (1967), but, in doing so, decided to
reestablish FECA reemployment rights in a location remote from FECA itself. Instead of
including them in chapter 81, Congress reinserted the reemployment rights provisions in
the subsection of chapter 33 governing selection and appointment, presumably because
the essential obligation to place FECA claimants on registers and consider them for
vacant positions was akin to similar personnel procedures located in chapter 33. The
substance of the right remained the same.

‘Chapter 33 is amended by inserting the following new section after section
3315:

“3315a. Registers; individuals receiving compensation for work
injuries

“(b) The Civil Service Commission, on application by an employee or
former employee receiving compensation under subchapter I of chapter 81
of this title, shall enter his name on each appropriate register or
employment list, or both, maintained by the Commission, for certification
for appointment: to a vacant position for which he is physically and
otherwise qualified, under regulations of the Commission. An employee
or former employee with career or career-conditional status is entitled to

7

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Ill. STATEMENT OF FACTS.
a. The Statutory Framework for FECA Reemployment Rights

Federal employees have enjoyed comprehensive, statutory-based compensation
and other benefits relating to work-related injuries and illnesses for nearly 100 years. See
generally Willis J. Nordlund, A History of the-Federal Employees’ Compensation Act
(1992). But FECA and its predecessors did not always contain reemployment rights as
they exist today. Indeed, whether they are called reemployment rights, civil service
retention rights, or restoration rights, Congress has been deliberate in granting them and
specific in their reach. The development of the statutory bases for FECA reemployment
Tights and the regulations that rely on them — including the provisions of 5 C.F.R. §§
353:101 - .304 that are seminal to these consolidated appeals — is both revealing and
instructive.

In the modern era, reémployment rights emerged in the Federal Employees’
Compensation Act Amendments of 1966, Pub. L. No. 89-488, 80 Stat.252 (1966), which
contained the following provision amending FECA (then codified at 5 U.S.C. §§ 751 -
803a (1964)).

Section 9 of the Federal Employees’ Compensation Act [5 U.S.C. § 759

(1964)] is amended by adding at the end thereof the following new

“subsection:

“(c) Upon.the application of any employee or former employee in receipt

of compensation under this Act to the United States Civil Service

Commission, said Commission shall enter his name on each appropriate

register or employment, list, or both, maintained by the Commission, for

certification for appointment to any vacant position for which he is
physically and otherwise qualified, in accordance with regulations of the

‘Commission. Employees or former employees with career or career-

conditional status shall be entitled to the same priority in certification
which the Commission accords a career or career-conditional employee

6

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the statute. “The preeminent canon of statutory interpretation requires [the Board] to
‘presume that [the] legislature says in a statute what it means and means in a statute what
it says there’ .... Thus, [the Board’s] inquiry begins with the statutory text, and ends
there as well if the text is unambiguous.” BedRoc Limited, LLC v. United States, 541
US. 176, 183-84 (2004). Given the clarity of § 8151(b), i.e., the repeated references to
an employee’s having “overcome” an injury or disability, that language must be enforced
as Congress adopted it.

As a result, 5 C.F.R. § 353.301(d) is unenforceable in any context, and should not
be applied by the Board to obtain jurisdiction over the Postal Service’s employment
efforts under the ELM and Handbook EL-505.

3. The Postal Service’s Rules Are Established Elements of Its Collective-Bargaining
Agreements

The provisions of ELM § 546 and Handbook EL-505 are incorporated into the
Postal Service’s collective-bargaining agreements, agreements that cover the
overwhelming majority of the Postal Service’s workforce.

Those parts of all handbooks, manuals and published regulations of

the Postal Service, that directly relate to wages, hours or working

conditions, as they apply to employees covered by this Agreement, shall

contain nothing that conflicts with this Agreement, and shall be continued

in effect except that the Employer shall have the right to make changes

that are not inconsistent with this Agreement and that are fair, reasonable,

and equitable.
See, e.g, Agreement Between the United States Postal Service and the National
Association of Letter Carriers, AFL-CIO, Article 19 (2006). See also, Harrell v. U.S.
Postal Service, 445 F.3d 913, 922-23 (7" Cir. 2006) (“postal handbooks and manuals
affecting working conditions are incorporated by reference” into collective bargaining

agreements). The rights provided by these agreements are ultimately protected by labor

27
Pleading Number Qh, ‘Submission date : 2011-08-24 14:15:48 Confirmation Numb Qa page 32 of 37


(1) the department or agency which was the last employer shall
immediately and unconditionally accord the employee, if the injury
or disability has been overcome within one year after the date of

commencement of compensation or from the time compensable
disability recurs if the recurrence begins after the injured employee
resumes regular full-time employment with the United States, the
right to resume his former or an equivalent position, as well as all
other attendant rights which the employee would have had, or
acquired, in his former position had he not been injured or
disabled, including the rights to tenure, promotion, ‘and safeguards
in reductions-in-force procedures, and

(2) the department or agency which was the last employer shall, if

the injury or disability is overcome within a period of more than

one year after the date of commencement of compensation, make -

all reasonable efforts to place, and accord priority to placing, the

employee in his former or equivalent position within such

department or agency, within any other department or agency.
5 U.S.C. § 8151(b) (emphasis added). In the context of § 8151(b), overcoming a
disability must mean regaining the ability to “resume [the employee’s] former or...
equivalent position,” which in tum corresponds exactly to the definition of “fully
Tecovered” under the regulations. As a result, the reemployment rights granted by
Congress in § 8151(b) flow only to fully recovered employees. Any provisions in the
regulations that purport to provide reemployment rights under FECA to an employee
other than a fully recovered employee exceed the authority granted by the statute and are
unenforceable.

Of course, unlike the preceding argument concerning FECA’s ‘limitation to
regular positions, there is a basis in FECA legislative history to read FECA to authorize
regulations granting reemployment rights to employees whose work-related illness or
injury has been partially overcome. See S. Rep. 93-1081 at 4, 1974 U.S.C.C.AN. at
5344. But putting aside the inherent ambiguity of the Senate Report’s statement, it would

be improper for the Board to rely on the Senate Report to confound the clear meaning of

26

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Il. SUMMARY OF ARGUMENT
A. The answer to the Board’s first question is: “No.”

1, Assuming the Postal Service, or any agency, has adopted agency-specific rules
designed to “provid[e] medically suitable work to partially recovered employees
regardless of whether that work comprises the essential functions of a complete and
separate position,” Consolidation Order 3, such rules do not create FECA restoration
rights because neither the employees nor the work assignments covered by such rules fall
within the delineation of restoration rights under FECA. To the extent 5 CFR. §
353.304(c) purports to regulate an agency’s efforts under such agency rules, it is beyond
the regulatory authority granted OPM by FECA and cannot form the basis of Board
jurisdiction. ,

a, FECA grants restoration rights only into regular positions in the agency’s
workforce. To the extent 5 CF.R. § 353.304(c), in conjunction with the
definition of “partially recovered” contained in 5 C.F.R. § 353.102, is read to
require that partially recovered employees are entitled under FECA to anything
beyond assignment to a regular position, the regulation exceeds OPM’s statutory
authority to adopt regulations under FECA, is unenforceable, and cannot form the
basis for Board jurisdiction. As a result, an agency’s “every effort” under §
353.302(c) can never be deemed to include efforts to employ a FECA claimant,
other than efforts to identify and assign an employee toa regular position. It is
irrelevant whether an agency’s efforts to employ a FECA claimant in an
assignment other than a regular position are conducted informally, are mandatory

or precatory, or are subject to an enforcement mechanism other than an appeal to

3

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ooo



the injury.” 20 C.F.R. § 10.505(b). And in a set of questions and answers it has
published about FECA, OWCP explained:
Employees who are disabled from their regular jobs are expected to
retum to suitable light or limited duty identified by their employers.
If such work is not available, OWCP provides nurse and vocational
rehabilitation services to help employees retum to work, either with
the original Federal employer, another Federal employer, or in the
private sector. :
OWCP considers return to work a benefit both to the injured
employee, who once again becomes a productive member of society,

and to the employer, who retains (or obtains) the services of a skilled
and knowledgeable individual.

Questions and Answers about the Federal Employees’ Compensation Act (FECA), H-1
(U.S. Department of Labor, Employment Standards Administration, (Sept. 25, 2007).
But while OWCP .encourages employees and agencies to informally reengage their
relationship after an illness or injury as soon as possible, it will not penalize an
employee’s failure to accept a limited or light duty offer from his or her agency unless the
offer was for suitable work. Notably for the Board’s purposes in this case, employment
offers of less than four hours of work per day when the employee is capable of working
four or more hours, or employment offers that are for temporary jobs (except for

: temporary employees) are generally considered unsuitable. See FECA Procedure Manual
~ Part 2, Claims, at 2-0814-4(b). If an offer is not suitable, an employee’s decision to
refuse it does not impact the receipt of compensation.

d._The Postal Service’s Rules and Processes Benefiting FECA Claimants

As the Board’s Consolidation Order in the case recognizes, the Postal Service

addresses the employment of FECA claimants in two locations: § 546 of the Postal

17

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assignments to another existing position, or assignments to residual vacancies in the
organized workforce.!°. Handbook EL-505 at 269. If none of these options produce an
assignment, Handbook EL-505 authorizes the creation of a new position in the workforce
to which the employee can be permanently assigned. Id.
* * *
Il. ARGUMENT

A. THE BOARD LACKS JURISDICTION UNDER

5 C.F.R. § 353.301(d) BECAUSE THE REGULATION

EXCEEDS ITS STATUTORY AUTHORITY

1. The Object Of A Restoration Under FECA May Only Be A Regular Workforce
Position

The history of FECA’s reemployment provisions demonstrates that Congress
never granted a restoration right to any assignment other than to a recognized position in
the Agency’s workforce. 5 U.S.C. §°759(c) provided a right for a FECA claimant to

“enter his name on each appropriate register or employment list, or both; maintained by

the Commission, for certification for appointment to any vacant position for which he is
physically and otherwise qualified, ...” 5 U.S.C. § 759(c)(1964) (emphasis added).
When Congress transferred reemployment rights to 5 U.S.C. § 3315a a year later, it

restated the identical right.

The Civil Service Commission, on application by an employee or
former employee receiving compensation under subchapter I of
chapter 81 of this title, shall enter his name on-each appropriate

register _or employment list, or both, maintained by the
Commission, for certification for appointment to a vacant position

for which he is physically and otherwise qualified, .. .

"© A residual vacancy is a position that remains vacant after any employee with contract-based seniority
Tights has been given the opportunity to bid for, assume, etc. the position.

23
Pleading Number az, Submission date : 2011-08-24 14:15:48 Confirmation Number MA, «= page 28 of 37


UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

JAMES C. LATHAM,
RUBY N. TURNER,

ARLEATHER REAVES, DOCKET NUMBERS

CYNTHIA E, LUNDY, and DA-0353-10-0408-I-1
MARCELLA ALBRIGHT, SF-0353-10-0329-I-1
CH-0353-10-0823-I-1

Appellants, AT-0353-11-0369-I-1

DC-0752-11-0196-I-1
v.

UNITED STATES POSTAL SERVICE,

Agency.

AGENCY’S OPENING BRIEF

For the Agency:

William D. Bubb
Ayoka Campbell
Earl L. Cotton, Sr.
Andrew C. Friedman
Theresa M. Gegen
Joshua T. Klipp

United States Postal Service
475 L’Enfant Plaza, SW
Washington, DC 20260-1150
202.268.3076 (telephone)
202.268.5402 (facsimile)

August 24, 2011

“Pleading Number QQ, Submission date : 2011-08-24 14:15:48 Confirmation Nunbe Qi page 4 of 37

eo ——



whose injuries or disabilities are partially overcome, as well as those who have fully
overcome their disabilities.” S. Rep. 93-1081 at 4, 1974 U.S.C.C.A.N. at 5344.) These
amendments established FECA reemployment rights in their current statutory form, with
the exception of the replacement of “Civil Service Commission” with “Office of
Personnel Management” by virtue of the changes occasioned by the Civil Service Reform
Act of 1978. See Pub. L. No. 95-454, § 906(a)(2), 2 Stat. 1111, 1224 (1978).

The distinctions even § 8151(b) and the provision it repealed, 5 U.S.C. §
3315a, are noteworthy. First, § 8151(b) established an absolute right to reinstatement to
the employee’s former position or an equivalent one if he or she recovers sufficiently to
be able to perform the former position in less than a year. While this feature of § 8151(b)
retained § 3315a’s limitation on the nature of an assignment to which an employee is
entitled under FECA — an existing position in the workforce — it transformed the right for
employees who fully recover within a year from priority consideration to an entitlement.

Second, the rights granted by § 8151(b) themselves established a new and more
limited class of eligible employees. Under § 8151(b), “overcoming” a disability can only
mean that the ill or injured employee has recovered to the point that the original position
can again be performed — in other words, that he or she is fully recovered — since the
entitlement is only to the original position or its equivalent. The provision it replaced, §
3315a, granted rights — although limited to priority consideration for vacant positions — to
employees who had recovered sufficiently to perform the position for which

consideration was sought, not only to employees who had recovered sufficiently to

10

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contained in 5 U.S.C. § 759(c) and 5 U.S.C. § 3315a) and implicit (by reference to
registers, employment lists and placement in former or equivalent positions).

b,_The Regulatory Framework for FECA Reemployment Rights

Another feature of the 1974 amendments to FECA’s reemployment rights was the
authorization of regulations governing them. 5 U.S.C. § 8151(b). Originally operating in
tandem with corresponding provisions in the Federal Personnel Manual,’ regulations
goveming “restoration to duty” under FECA first seemed to appear in the Code of
Federal Regulations in 1989.. These regulations obviously foreshadowed the current
OPM regulations, but their substantive provisions are worth reviewing.

First, the 1989 regulations provided that

an individual who fully recovers* from a compensable injury
within 1 year of the date compensation begins, or from the time
compensable disability recurs if the recurrence begins after the
employee resumes regular employment with the United States... .
must be restored immediately and-unconditionally [to their former
position or an equivalent one].

5 C.F.R. § 353.301 (1989). This provision was consistent with 5 U.S.C. § 8151(b), the
statute that authorized it.
Second, the 1989 regulations provided that an employee

whose recovery takes longer than 1 year from the date
compensation began . .. . is entitled to priority consideration for
restoration to the position he or she left or an equivalent one
provided he or she applies for reappointment within 30 days of
cessation of compensation. (See Parts 302 and 330 of this chapter

3 Effective January 13, 1995, the OPM regulations governing FECA reemployment rights were no longer
tied to the Federal Personnel Manual. The final operative provisions of the Federal Personnel Manual were
abolished on December 31, 1994. See 60 Fed. Reg. 3055 (January 13, 1995).

‘ The 1989 regulations define “fully recovered” to mean “compensation payments have been terminated on
the basis that the employee is able to perform all the duties of the position he left or an equivalent one.” 5
C.F.R. § 353.102 (1989). The current definition of “fully recovered” is identical. However, the 1989
regulations do not define “partially recovered,” although, as described herein, the 1989 regulations used
that term. Similarly, “physically disqualified” is used but not defined in the 1989 regulations.

12
Pleading Number ah. Submission date : 2011-08-24 14:15:48 Confirmation Number: a. page 17 of 37

oe



1, Would you like to enter the text online or upload a file containing the pleading?

See attached pleading text document

2. Does your pleading assert facts that you know from your personal knowledge?

No

Pleading Number QUEM, Submission date : 2011-08-24 14:15:48 Confirmation Number: GT, page 3 of 37


essential characteristics — the assignments are temporary, and they are comprised, not of
regular positions in the workforce, but ‘of duties assembled to match the employee’s
temporary need. The informal Limited Duty program provisions describe a search for
“appropriate duty,” Handbook EL-505 at 158, and the formal Limited Duty program
provisions call for the establishment of a “special job bank . . . [consisting] of limited
duty tasks that are filled only by injured employees” from which Limited Duty
assignments may be assembled. Jd. at 159.° Finally, Handbook EL-505 includes
guidelines for managers in considering Limited Duty assignments:

The USPS should minimize any adverse or disruptive impact on
the employee in assigning limited duty. (ELM 546.141)

Consider the following when making limited duty assignments:

— Match the limited duty job as closely as possible to the
regular job. Do not make the limited duty job more
desirable than the employee’s regular job.

— The limited duty work environment should be similar to
that of the regular job. If the limited duty environment is
more attractive, it may seem like a reward. If the
environment is less atwactive, it may seem like a
punishment.

— The limited duty job should have similar pay. To put an
injured employee in a job that pays more than the regular
job creates a problem, especially if the employee performs
well. To put an injured employee in a lower paying job
(i.e., a job that requires less skill) makes poor use of
resources.

— Little or no training should be required. Don’t expect
supervisors to wain someone in a skilled assignment when
they know he or she will only be there a short time.

— The assignment should result in a tangible product and
should not be a “make work” job.

* The Handbook notes that the formal Limited Duty program procedures are “[nJormally . . . most effective
in large installations.” /d.

21

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Table of Contents

Pleading Interview 3
Uploaded Pleading Text Document
Certificate of Service 36

Pleading Number —aa. ‘Submission date : 2011-08-24 14:15:48 Confirmation Nunbe page 2 of 37


Postal Service. For the Board to make a determination under the “every effort” standard
of 5 C.F.R. § 353.301(d) in these circumstances would be jurisdictionally inappropriate,
but would also be substantially upsetting to the Postal Service’s collective-bargaining
relationships and would, as a practical matter, involve the Board in determinations that
are better handled by the grievance procedures, where experience and expertise provide a
substantially better forum for all the participants — the Postal Servicé and its employees,
alike.
B. EXPANDING THE BOARDS JURISDICTION

UNDER 5 C.F.R. § 353.301(d) WOULD

INAPPROPRIATELY INVOLVE THE BOARD

IN THE ACTIVITIES OF OWCP

ELM § 546 and Handbook EL-505 obligate the Postal Service to search for work
that is not a regular position and offer work if it is found. These provisions were
motivated by a desire to allow workers to enjoy the salutary effect of retuming to work as
soon as possible and by a desire to reduce workers’ compensation expense. And they are
in keeping with the Office of Workers’ Compensation Programs’ (““OWCP”) approach to
the administration of FECA, which encourages employment and rehabilitation,
independent of FECA’s restoration provisions.

“OWCP considers return to work a benefit both to the injured employee, who
once again becomes a productive member of society, and to the employer, who retains (or
obtains) the services of a skilled and lnowledgeable individual.” Questions and Answers
about the Federal Employees’ Compensation Act (FECA), H-1 (U.S. Department of
Labor, Employment Standards Administration, (Sept. 25, 2007).

The Board as a matter of public policy should respect OWCP’s role and

responsibility in the administration of FECA and certainly should do nothing that

29
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5 U.S.C. § 3315a(b) (1967) (emphasis added). And when FECA reemployment rights
were amended and retumed to the body of FECA in 1974, Congress once again limited
reemployment rights to existing positions, a restriction made inescapable by Congress’
references to the employee’s “former position” and to the “attendant rights” it promised
reemployed claimants.
(1) the department or agency which was the last employer shall
‘immediately and unconditionally accord the employee, if the injury
or disability has been overcome within one year after the date of
commencement of compensation or from the time compensable
disability recurs if the recurrence begins after the injured employee

resumes regular full-time employment with the United States, the

right to resume his former or an equivalent position, as well as all
other attendant rights which the employee would have had, or

acquired, in his former position had he not been injured or
disabled, including the rights to tenure, promotion, and safeguards
in reductions-in-force procedures, and

(2) the department or agency which was the last employer shall, if
the injury or disability is overcome within a period of more than
one year after the date of commencement of compensation, make
all reasonable efforts to place, and accord priority to placing, the
employee in his former_or equivalent position within such
department or agency, within any other department or agency.

5 U.S.C. § 8151(b) (emphasis added).

Given this consistent and cwrent statutory reswaint, the OPM regulations may not
be read to require an agency to provide anything other than an assignment to a regular
position. If 5 C.F.R. § 353.301 (d) is to survive, its command that “[a]gencies must make
every effort to restore in the local commuting area, according to the circumstances in
each case, an individual who has partially recovered from a compensable injury and who
is able to retum to limited duty” must be read only to require placement in a regular
position in the workforce. Such a reading would, as the Board has noted, be consistent

with its current authority. Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, J 12 (2010)

24

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the same priority in certification that the Commission accords a career or

career-conditional employee who has been involuntarily displaced from

his position through no fault of his own.”

Pub. L. No. 90-83, § 1(9). See also S. Rep. No. 482 (1967), reprinted in 1967
US.C.C.AN. 1538, 1543; 5 US.C. § 3315(a)(1970).

In surnmary, the reemployment rights originally prescribed in 5 U.S.C. § 759(c)
and transferred to 5 U.S.C. § 3315(a) did not grant an absolute right to be appointed to a
vacant position. Instead, they granted a right to preferential consideration for
appointment to vacant positions as part of the general selection process. By necessary
inference, they granted the right to preferential consideration for appointment to vacant
positions not only to employees who had fully recovered, but also to employees who had
partially recovered. The reference in § 3315(a) to “a vacant position for which he is
physically and otherwise qualified” cannot be read any other way.

Section 3315(a) established a FECA restoration right that was limited to priority
consideration to regular positions in the agencies’ workforces. And it remained the sole
authority for reemployment rights under FECA until 1974. In that year, Congress opted
to once again reexamine FECA, motivated at least in part by a study of state workers’
compensation laws commissioned under the federal Occupational Safety and Health Act
of 1970. That study was critical of the states’ workers’ compensation laws. Believing
that the study’s critique of state law was applicable to FECA, see S. Rep. 93-1081 (1974),
reprinted in 1974 U.S.C.C.A.N. 5341, and striving to establish the federal government as
a “model employer,” S. Rep. 93-1081 at 1, 1974 U.S.C.C.A.N, at 5341, Congress adopted
a variety of amendments, including an amendment to FECA’s reemployment provisions.

The results were: a) a more specific and limited statement of FECA reemployment rights;

8

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perfoim their former position. Under § 8151(b), rights are granted only to.employees
who have recovered sufficiently to perform their pre-injury or illness position.”

There is some evidence that Congress did not intend this result. See S. Rep. 93-
1081 at 4, 1974 U.S.C.C.A.N. at 5344 (“The Committee also wishes to make clear that
the Civil Service Commission is authorized to promulgate regulations covering the rights
of employees whose injuries or disabilities are partially overcome, as well as those who
have fully overcome their disabilities.”), But putting aside the argument that the Senate
Report should be ignored as a matter of law, it is impossible as a matter of fact to
determine what the Committee meant. It could have intended to allow partially recovered
employees to receive priority consideration for positions they could perform. Given the
existing law at the time §8151(d) was enacted, that would be a reasonable guess as to the
statement’s meaning — but it is only a guess.

Even with its rough edges, this statutory history is helpful in resolving several
issues presented in these consolidated appeals. While there are some ambiguities that
likely cannot be resolved as matters of fact, the recognition of their existence will help
guide the Board. But there is one unmistakable principle that emerges from Congress’
historical treatment of reemployment rights under FECA. Congress has only established
~ and has only ever established — a right to reemployment in existing positions in the
agencies’ workforces. This feature of Congressional intent is both explicit (the right was

described as “appointment” to a “vacant position” when reemployment rights were

? Notably, and as discussed below, while the current regulations may be consistent with prior law ~ 5
U.S.C. § 3315a— they are inconsistent with current law — 5 U.S.C. § 8151(b). Flashing forward to the.
terminology employed in the current restoration regulations on which this matter is focused, physically
disqualified and partially recovered employees (in today’s regulatory parlance) had rights to priority
consideration for vacant positions that were eliminated by § 8151(d). :

1

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