Service out of Title 5 and then selectively applied portions of Title 5 to the Postal Service
by incorporating them into Title 39. Sve, ¢y., Marjie v. U.S. Postal Service, 70 M.S.P.R,
95 (1996) (5 U.S.C. § 7121(d) does not apply to the Postal Service). Taken together,
these Congressional determinations created a labor relationship that is unique in the
federal sector and operates outside of traditional executive branch oversight.

The Board seems focused on these circumstances, AL oral argument, the Board
repealedly expressed curiosity concerning whether the rules at issue were collectively
bargained, presumably in recognition of the fact that its scrutiny of collective-bargaining
agreements is constrained. The responses the Board received al oral argument were
unclear, due in part to alternating discussion of the NRP, the ELM, and Handbook EL-
505. But there is no dispute that BLM § 546 and Handbook EL-505 are, for all intents

and purposes, collective-bargaining agreements.

Fach of the Postal Service's collective-bargaining agreements contains a version

of the following provision:
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 cenflicts with this Agreement, and shall be continued

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

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

and equitable.
Agreement Between the United States Postal Service and the National Axsociation of
Lester Carrlers, AFL-CHO, Article 19 (2006), As a result, ELM § 546 and Handbook EL-
505 have been transformed trom unilateral policy statements to binding agreements. In

fact, the only thing that distinguishes them from a provision actually contained in a

collective-bargaining agreement is the fact that the Postal Service has the ability to alter

15

f Pleading Number SMM = Submission date : 2012-01-06 14:44:55 Confirmation Number: page 20 of 25


the application of 5 U.S.C. § 1204, or both » and il should do so with confidence that the
hesitation il expressed at oral argument is unwarranted.

B. OPM’S RESTORATION REGULATIONS
EXCEED OPM'S STATUTORY AUTHORITY
TO REGULATE RESTORATION UNDER
5 U.S.C, § 8151 AND TO GRANT JURISDICTION :
TO THE BOARD

The Postal Serviee has in prior briefing described why the intent of Congress as

expressed in 3 U.S.C. § 8151 is textually and historically clear. If it is, “that is the end of

the matter,” Chevron, U.S.4. v. National Resources Defense Council, 467 U.S, 837, 842

(1984), and the Board “must give effect 10 the unambiguously expressed intent of
Congress." /d. (However, because at oral argument the issue of whether § 8151 is
ambiguous was raised by the Appellants and by at least one Board member,’ it is
appropriate to briefly review why § 8151 is dispositive and OPM's interpretation should
be rejected.

As Chevron instructs, it is appropriate to start with the statule. “[T]he department

or agency which was the last employer shall immediately and unconditionally accord the

* Appellants’ counsel suggested ac oral argument that the issue of the Board's jurisdiction had either not
been properly raised ur could not be properly raised because the Postal Service did not raise it in this or any
other proceeding. And the Board itself expressed interest in whether the Postal Service had raised its
Jurisdictional concerns in prior proceedings. ‘Transcript of Oral Argument at 48. Firs and as Vice
Chairman Wagner suggested at oral argument, Transcript of Oral Argument at 7, the Board itsel ly
raised jurisdiction in its Consolidation Order by asking: “[MJay the Board have jurisdiction over a
restoralion appeal . ., merely on the basis that the denial of restoration violated the agency’s own internal
rules?” Consol jon Order at 4. Second, il is axiamatic that “{t}he defense of subject mater jurisdiction
cannot be waived, and the court is under a contiquiny duty to disiniss an action whenever it appears that the
court lacks jurisdiction.” Augustine v. United States, 704 F.2d 1074, (077 (9" Cir, 1983), Finally, the
issues raised by the Board in the Consolidation Order focused everyone on the Board's FECA-based
jurisdiction in a manner that simply had not arisen in routine cases, a fact recognized by the Board ilselé.
Consolidation Order at 3 (The Board has not yet addressed the implications of ELM § 546,142(a) on
restoration appeals of paniially recovered U.S, Postal Service employees under 5 C.F.R. § 393,304(c).)

’ Por example, Vice Chairman Wagner commented: “| do think that -- | do see ambiguity ia that language
to acertain degree.” Transcript of Oral Argument at 40.

9

Pleading Number : 7 aia Submission date : 2012-01-06 14:44:55 Confirmation Number: Sa page 14 of 25


Certificate Of Service

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

Name & Address

Documents

[Method of Service

IMSPB: Office of the Clerk of the

Agency's Post-Argument

¢-Appeal / e-Mail

[Board Brief
Marcella Albright Agency's Post-Argument —_e-Appeal / e-Mail
Appellant Brief

Thomas William Albright
Appellant Representative

[Agency's Post-Argument
Brief

e-Appeal / e-Mail

[Andrew C. Friedman, Esq.

Agency's Post-Argument

-Appeal / e-Mail

Agency Representative Brief
joshua T. Klipp, Esq. [Agency's Post-Argument —_e-Appeal / e-Mail
\Agency Representative Brief
Earl L, Cotton, Sr., Esq. Agency's Post-Argument e-Appeal / e-Mail
Agency Representative Brief
Theresa M. Gegen Agency's Post-Argument —_e-Appeal / e-Mail
[Agency Representative Brief
[Ayoka Campbell Agency's Post-Argument —_e-Appeal / e-Mail
Agency Representative Brief

I agree to send a printed copy of the electronic pleading with attac!
end of next business day, as follows:

hments to non-efilers by the

Name & Address Documents Method of Service
James C, Latham Agency's Post-Argument —_|US Postal Mail
Appellant Brief
i
Ruby N. Turner Agency's Post-Argument US Postal Mail
Appellant Brief
b6
Pleading Number : MNNIGMNNIN = Submission date : 2012-01-06 14:44:55 Confirmation Number: iS

page 24 of 25


Table of Contents
ARGUMENT |
A TIE BOARD HAS AUTHORITY TO REACH THE ISSUE I

OF WHETHER OPM’S RESTORATION REGULATIONS
EXCEED OPM’S STATUTORY AUTHORITY

é 6

B. OPM’S RESTORATION REGULATIONS EXCEED OPM'S 9
STATUTORY AUTHORITY TO REGULATE RESTORATION
UNDER 5 U.S.C. § 8151 AND TO GRANT JURISDICTION
TO THE BOARD

G THE NATIONAL REASSESSMENT PROCESS DID NOT IMPOSE 12
NEW STANDARDS FOR ASSIGNING ILL OR INJURED
EMPLOYEES OR FOR DETERMINING THE AVAILABILTY
OF WORK. SECTION 546 OF THE EMPLOYEE AND LABOR
RELATIONS MANUAL AND HANDBOOK EL-505 APPLIED
BEFORE AND DURING THE NATIONAL REASSESSMENT
PROCESS, AND THEY CONTINUE TO APPLY TODAY

D WHETHER THE POSTAL SERVICE COMPLIED WITH 14
SECTION 346 OF THE EMPLOYEE AND LABOR RELATIONS
MANUAL IS A MATTER OVER WHICH THE POSTAL SERVICE
NAS COLLECTIVELY BARGAINED, BOTH AS TO THE MERITS
AND AS TO THE FORUM FOR DISPUTES. TIIE BOARD MAY NOT
INVADE THE PROVINCE OF A POSTAL SERVICE COLLECTIVE-
BARGAINING AGREEMENT

jis REFRAINING FROM ENFORCING TIIE RESTORATION \7
REGULATIONS TO TH ENT THEY PURPORT TO
GOVERN ASSIGNMENTS TO OTHER THAN FULLY
RECOVERED WORKERS OR TO OTHER THAN REGULAR
POSITIONS WOULD NOT LEAVE ANY GAPS IN FECA-BASED
PROTECTION, SUCH] ASSIGNMENTS ARE STATUTORILY
ASSIGNED TO TILE SECRETARY OF LABOR WIIO IS
EFFICIENTLY AND EFFECTIVELY PROVIDING THEM

CONCLUSION 18

Pleading Number ESM = Submission date : 2012-01-08 14:44:55 Confirmation Number: IES page 5 of 25


them during the (erm of the agreement. But, even then, the Postal Service's ability to do
so is significantly restricted. Only changes that are “fair, reasonable, and equitable” and
are consistem with each of its collective-baryaining agreements can be made, and only
afler consultation with the union. And the ability of the Postal Service to make such
changes is itself subject to the grievance procedure and binding arbitration. “If the Union
... believes the proposed changes violate the National Agreement [including Article 19],
it may then submit the issue to arbitration in accordance with the arbitration procedure
within ninety (90) days atier receipt of the notice of proposed change.” — Agreement
Beaveen the United States Postal Service and the National Association of Leder Carriers,
AFL-CIO, Article 19 (2006).

When it made the policy judgment to apply private sector labor relations
principles to the Postal Service, 39 U.S.C. § 1209, Congress necessarily incorporated a
strong deference to self-determination.

Arbitration as a means of resolving labor disputes has gained
widespread acceptance over the years and now occupies a respected
and firmly established place in Federal labor policy, The reason for
ils success is the underlying conviction that the parties to a
collective-bargaining agreement are in the best position to resolve,
with the help of a neutral third party if necessary, dispules
concerning the correct interpretation of their contract.
United Technologies Corporation, 268 N.L.R.B, 557, 558 (1984),

N is indisputable, as the Board has recognized in its Consolidation Order, that
these very mechanisms have produced conflicting arbitral resulls concerning the Postal
Service's compliance with ELM § 546 and Handbook EL-S05. But that, in an essential

way, makes the point that the Board should and must avoid involving itself in contract

disputes, The arbitration decisions ciled by the Board and the Postal Service — the former

16

Pleading Number : aE ‘Submission date : 2012-01-08 14:44:56 Confirmation Number: page 21 of 25


repular positions, it need not worry that such persons or such igoments will be
neglected. In fact, they are the focus of the Seeretary of Labor's efforts.

CONCLUSION

For the reasons described here and in the Postal Service's prior briefs, the Board

should decline to exercise jurisdiction under FECA {0 enforce Postal Service rules, ‘The

Board's own jurisdiction, the invalidity of the restoration regulations, the supremacy of
the Postal Service’s collective-bargaining agreements, and the symmeuy between the

responsibilities of the Secretary of Labor and the Board under CECA, all counsel in favor

of declining lo act,

Respeetfully submitted,

we th oe fe

William D, Bubb

Counsel for the
United States Postal Service

January 6, 2012

ty

Pleading Number : EO Submission date : 2012-01-06 14:44:66. Confirmation Number; Ea page 29 of 26


second issue involves the Union's contention that as part of the
NRP the Postal Service has developed new criteria for assigning
limited duty. The third issue concerned the potential impact of the
NRP on employees assigned to light duly under Article 13 of the
Agreement.

In resolution of these issues the parties agree as follows:

1. The NRP has not redetined or changed the Postal Service's
obligation to provide limited duty or rehabilitation assignments for
injured employees. The ELM 546 has not been amended and
remains applicable to all pending grievances.

2. The Postal Service has not developed new criteria for assigning
limited duty. Injured employees will continue to be assigned
limited duty, in accordance with the requirements of ELM 546 and
5 CFR, Part 353,

3. Employees on existing non-workers' compensation light duty
assignments made pursuant to Article 13° of the National
Agreement will not normally be displaced solely lo make new
limited duty or rehabilitation assignments unless required by law
or regulation. The foregoing sentence does not establish any
guarantee of daily work hours for employees in a light duly
assignment.

All grievances which have been held in abeyance will be processed
in accordance with the forgoing.

This settlement is without prejudice to the right of the Postal
Service to propose changes to El.M $46 in accordance with the
Article 19 process.

Agreement Between the United States Postal Service and the National Association of

Letter Carriers, AFL-CIO, June 18, 2009. Although the American Postal Workers

Union did not reach a similar agreement with the Postal Service, the Postal Service has

taken the position expressed in iis agreements with the NALC and the NPMHU with

respecl to all ils workers, Asa result, any seculiny of the Postal Service’s conduct under

its own rules begins and ends with an examination of ELM § 546 and [fandbook EL-505,

* The Pa

Lener

Pleading Number

| Service's agreement with the NALC is in the

jers, Case No. BOIN-4B-C 06189348 (2010) (Lalonde, Arb.)

bé

13

Submission date : 2012-01-06 14:44:55 Confirmation Number: (IRE

ord. Sve U.S. Posie Service v. Nat'l Ass'n of

page 16 of 25


The right to appeal to the Board is a setiled part of the
procedures and standards governing RIM's generally. One would
expect that, before concluding that an agency had ended Board
jurisdiction over a particular category of RIFs, the Board would
ly _ carefully analyze the agency” s action lo ensure that the
imposed
Such an

t that the Institute “developled] ils own personnel system,”
which did not provide for RIF appeals to the Board and which the
Board in tum deemed dispositive of its own jurisdiction, does not

condition for sucht action.

Parrish, 485 F.3d at 1363 (emphasis added),

Similar to the reservations expressed by the Board at oral argument concerning
the absence of an express authorization to review OPM’'s restoration regulations, the
Board's General Counsel in Parrish cited cases for the proposition that there existed no
express authority for the Board to review (he Institute's compliance with (he statute
allowing it to adopt ils own personnel procedures. £4 at 1363-64. However, the Court of
Appeals explained that the cases ciled in support of the Board’s position “involved quite

different issues from the question here, which is whether the agency conducting, the

personnel demonstration project satisfied the conditions Cu imposed for

eliminating Board jurisdiction over appeals in a particular category of cases.” Id. al 1364
(emphasis added).

The reasoning of the Court of Appeals is compelling and could have been written
with the Board's present concems in mind. The Board has the “authority, indeed the
obligation, to determine its own jurisdiction.’ Purrist, 485 F.3d at 1362, It should

“carelully analyze [the OPM restoration regulations] to ensure that [OPM] has complied

Pleading Number | SUTWMMN = Submission dato : 2012-01-06 14:44:55 Confirmation Number: fits | page 10 of 25


Board has stated this principle countless times. See, ¢.g., Monser v. Dept of Army, 67
M.S.P.R. 477, 479 (1995) (the Board's jurisdiction is not “plenary” and is limited to that
granted by “statute, rule, or regulation."), In fact, this principle is central to the Postal
Service's argument that the Board is without jurisdiction in these cases. However, and as
discussed below, the Board always has, and must have, the general authority to determine
whether it has jurisdiction or, more to the point, to determine whether a regulatory grant
of jurisdiction is valid under the statute that authorized it,

{n contrast, $ U.S.C. § 1204 is not designed (o limit the Board’s ability generally
lo scrutinize regulatory grants of jurisdiction for compliance with their statutory
authorization. To the contrary, it is, itself, a yrantof jurisdiction for a particular purpose;
to determine whether a regulation would require or permil the commission of a prohibited
personnel practice. Nothing in § 1204 expresses exclusivity of any kind, and nothing in §
1204 addresses the analytically distinct situation where the basis for the Board's
examination of a regulation is not to scrutinize it for potential prohibited employment
practices, but instead to determine whether the regulation properly grants jurisdiction to
the Board. Indeed, in a review under §1204, it is irrelevant whether the regulation being
reviewed grants jurisdiction to the Board. ‘This fundamental and meaningful distinction
should, by itself, persuade the Board that it is neither constrained by § 1204 in
determining its jurisdiction, nor in need of § 1204 in order to apply a critical,
jurisdictional eye to the regulations at issue in these cases,

However, and as discussed below, if the Board were to opt to apply § 1204 to
OPM’'s restoration regulations for the purpose for which § 1204 was designed ~ the

detection and invalidation of regulations that permit or require (he commission of a

2

Pleading Number MSSMBNI = Submission date : 2012-01-08 14:44:65, Confirmation Number: page 7 of 25


ARGUMENT.
A. THE BOARD HAS AUTHORITY TO REACH THE ISSUE
OF WHETHER OPM’S RESTORATION REGULATIONS
EXCEED OPM'S STATUTORY AUTHORITY

In its Opening and Reply Briefs, the Postal Service argued that OPM’s restoration

regulations exceed their statutory authority under the Federal Employees Compensation

Act (“FECA”). At oral argument, the Board expressed concern that, even if it agreed
with the Postal Service's argument, itis without the power to invalidate or refuse (o apply
OPM regulations under the circumstances in these cases. For example, Vice Chairman
Wagner explained:

| understand the Postal Service argument and | think [at} some

level they're well taken. But you're raising an ultra vires

argument. You’re challenging OPM’s authority to issue the

regulation and our authority (0 declare an OPM regulation invalid

is really limited to when there is - its under [5 U.S.C. § 1204.) It's

when a prohibitive personnel practice would be committed as a

result of the regulation or implementation of the regulation. We

don‘| have general APA jurisdiction to declare OPM’s action to be

ultra vires, So where does that leave you?
Transcript of Oral Argument at 40! Similarly, Chairman Grundmann noted that the
Postal Service “argued throughout fits} brief that |§ C.FAR, 353.301 (c) and (d)J are ultra
vires, which goes back to the vice chair’s question of is this a [prohibited] personnel
practice, which is where we derive our jurisdiction,” fd at 42, and later asked “[wJhat
[prohibited] personnel practice can be committed or is the OPM reg invalid on its lace
because it requires someone to commit a (prohibited) personnel practice, which is our
granted jurisdiction?” Id. at 46.

It is natural and appropriate for the Board to be cautious in the exercise of

jurisdiction, an approach that has been a mainstay of the Board's jurisprudence. The

' Obvious wanscription errors have been corrected.

Pleading Number NSM = Submission date : 2012-01-06 14:44:55 Confirmation Number: EER = page 6 of 25


including its conduct in the cases before the Board. And, as described below, the
determination of whether the Postal Service complied with ELM § 546 and Handbook
EL-505 in any given case has been assigned through collective-bargaining to contractual
grievance procedures and. if necessary, an arbitrator. Focus on terms like “necessary
work”, "make work,” or “available work,” or on whether the lerms used to describe work
have changed, is a matter of semantics and a distraction from the central issue ~ whether
the Postal Service complied with ELM § 546 and Handbook EL-505.
p. WHETHER THE POSTAL SERVICE COMPLIED WITH

SECTION 546 OF Tt PLOYEE AND LABOR RELATIONS

MANUAL IS A MATTER OVER WICH THE POSTAL SERVICE

HAS COLLECTIVELY BARGAINED, BOTH AS TO ‘THE MERITS

AND AS HE FORUM FOR DISPUTES. THE BOARD MAY NOT

INVADE TIE PROVINCE OF A POSTAL SERVICE COLLECTIVE-
BARGAINING AGREEMENT

The APWU and NALC were unified at oral argument concerning an issue that the
Postal Service has consistently urged the Board to consider -- that the interpretation and
enforcement of ELM § 546 and Handbook KL-505 are “fundamentally a contract issue,”
‘Transcript of Oral Argumen! at 21, and that violations are “contract violations” because
ELM § $46 and Iundbook EL-505 are “incorporated by reference into the collective
bargaining agreement|s].~ 74 at 32. The Board's authority to interpret and enforce a
Postal Service collective-bargaining agreement or to review the decision of an arbitrator
under such an agreement is essentially, even literally, non-existent. There are two
reasons. Virst is the labor relations paradigm Congress selected for the Postal Service,
which is based on and enforced by the National Labor Relations Act and the National
Labor Relations Board, respectively. See 39 U.S.C. §§ 1201-1209. Second is the civil

service paradigm Congress selected for the Postal Service, which wrote the Postal

14

Pleading Number NOM = Submission date : 2012-01-06 14:44:55 Confirmation Number: SSM = page 19 of 25


In Parrish, the petitioner worked for the Southwestem Indian Polytechnic
Institute, Je, at 1360-61, In 1998, Congress enacted a statute that authorized the Institute
to conduct a personnel demonstration project to determine if adopting personnel
procedures that would not be covered by Title 5 and, in particular, would eliminate the
ability of an employee to appeal to the Board if he or she were removed based on a
reduction in force (“RIF), would serve to improve the Institute’s personnel management.
4d, The Institute adopted such procedures, and the petitioner was subsequently removed
in a RIF, Id at. 1361. Instead of challenging his removal under the appeal process
contained in the Institute’s new procedures, the petitioner appealed to the Board, arguing
that the new procedures were ineffective because the Institute failed to comply with the
requirements imposed by Congress for adopting them. JA

When the petitioner’s appeal reached the Board, the Board determined that it did
not have jurisdiction to hear it, explaining that while *it may well be that the agency did
not comply with the [statutory requirements for enacting the new procedure outside of
Title 5],°" id. at 1363 (citing Parrivh v. Dep ‘tof Interior, 99 M.S.P.R. 670, 673 (2005), it
would decline to assert jurisdiction because the enabling statule “tdoes not provide the
Board with authority to enforce the procedural requirements of that statute or to nullify
actions taken pursuant to (hat statulory authority. Nothing in the statute or its legislative
history indicates that Congress intended that the Board should have a role in overseeing
the agency’s exercise ol its statutory power to waive provisions of litle 5 and OPM...
regutations."” Jed.

The Court of Appeals rejected the Bourd’s reasoning. [n so doing, the court

explained:

4

Pleading Number GN = Submission date : 2012-01-06 14:44:55 Confirmation Number: SNM = page 9 of 25


Arleather Reaves
Appellant

Agency's Post-Argument
Brief

US Postal Mail

Cynthia E, Lundy Agency's Post-Argument US Postal Mail
Appellant Brief

b6
J.R. Pritchett Agency's Post-Argument —_|US Postal Mail
Appellant Representative Brief

Postal Employee Advocates 86 East
Merrill Road

McCammon, ID 83250

USA

Geraldine Manzo
Appellant Representative

7700 Edgewater Drive Suite 656
Oakland, CA 94621
USA.

Agency's Post-Argument
Brief

US Postal Mail

James A. Penna
Appellant Representative

3212 Villa Pl.
Amarillo, TX 79106
USA

Agency's Post-Argument
Brief

US Postal Mail

Matthew J. Dowd, Esq. Agency's Post-Argument —_|US Postal Mail
Appellant Representative Brief
Wiley Rein LLP 1776 K Street, N.W.
‘Washington, DC 20006
Barton Jay Powell Agency's Post-Argument —_|US Postal Mail
Other Brief.
7559 Waterford Drive
Hanover Park, IL 60133
Pleading Number Submission date ; 2012-01-06 14:44:55 Confirmation Number: {a

page 25 of 25


JAMES C, LATHAM vy, UNITED STATES POSTAL SERVICE
Docket # DA-0353-10-0408-I-1
Agency's Post-Argument Brief
Summary Page

Case Title : JAMES C, LATHAM v. UNITED STATES POSTAL SERVICE
Docket Number : DA-0353-10-0408-I-1

Pleading Title ; Agency's Post-Argument Brief

Filer's Name ; William D. Bubb, Esq,

Filer's Pleading Role : Agency Representative

Details about the supporting documentation

N/A

Pleading Number |S = Submission date : 2012-01-06 14:44:65 Confirmation Number: MEG page 1 of 25


if the Board determines that such provision would, if implemented by any agency, on its
face, require any employee to violate section 2302(b)." Section 2302(b), in turn. lists
prohibited personnel practices, and § 2302(b)(6) declares that it is impermissible for an
agency to “grant any preference or advantage not authorized by law, rule, or regulation to
any employee or applicant for employment (including defining the scope or manner of
competition or the requirements for any position) for (he purpose of improving or
injuring the prospects of any particular person for employment.”

OPM. issued the restoration regulalions pursuant to its § 1103 function of
“executing, administering, and enforcing ~ (A) the civil service rules and regulations of
the President and the Office [of the Director of OPM] and the Jaws governing the civil
service, and (B) the other activities of the Oftice |of the Director of OPM] including
retirement und classification activities; except with respect to functions for which the
Merit Systems Protection Board or the Special Counsel is primarily responsible.” 5
U.S.C. § 1103(a)(5). But § 1103(b) additionally provides and requires that OPM indicate
“the legal authority under which the rule is proposed” when it promulgates regulations in
the perfonnance of any of ils § 1103 functions, OPM’s notice in the Federal Register
publishing the restoration regulations, and the codified regulations themselves, make it
clear that OPM believed that its authority was, and only was, 5 U.S.C. § 81512 Asa
result, if the Board agrees that portions of OPM’s restoration regulations provice a
preference to ill or injured workers that is not authorized by 5 U.S.C. § 8151, it should

invalidate the regulations under 5 U.S.C. § 1204,

* The other reference is to the authority for those portians of the restoration regulations governing
restoration to duty from unifonned service and. like the regulations covering FECA-related restoration, is
tu a source of substantive authority other than 5 U.S.C. § 113(a). OPM's advisory opinion was materially
mistaken wlten it stated that the authority for ils FECA restoration regulations is $ U.S.C. § 1103(a}C

Pleading Number aT Submission date : 2012-01-06 14:44:55 Confirmation Number: aaa page 12 of 26


with the requirements Congress has imposed [in 5 U.S.C. § 8151] as a condition for
[establishing] the Board’s jurisdiction, Such an analysis and evaluation would be a
necessary and an appropriate part of the Board's determination of its own jurisdiction.”
fd. a 1363. The mere tact that OPM has authority as a general matter to grant
jurisdiction to the Board “does not address or answer the question of whether in taking
that action (OPM] complied with the requirements Congress imposed as a condition for

such action [under § 8151]." fa?

2 Th rd”

é vfs Complemented, Not
Constrained, |
As for the Board's sense of concern with the effect of 5 U.S.C. § 1204, the
principles described above are not supplanted by § 1204, they supersede it. Section 1204
does not circumscribe the Board's general ability to determine its jurisdiction, it merely
grants jurisdiction for the particular purpose of determining whether a regulation would
require or permit the commission of a prohibited personnel practice, an analytically
distinct concept. Moreover, not only does § 1204 not restrict the Board's general ability
to delerinine its jurisdictien, it provides an independent reason to invalidate the
restoration regulations,
Section 1204(f) provides that the Moard may review regulations promulgated by
OPM under § 1103, and that “[i)n reviewing any provision of any rule or regulation
pursuant to tis subsection, the Board shall declare such provision .. . invatid on its face,
Indeed, it is just objectionable and should be equally subject io the Board’s jurisdictional scrutiny -- to
remove jurisdiclion that is statutorily authorized as it is to create jurisdiction that is statutorily
unauthorized, In a case cited by Appellants at oral argument, Railway Labor Executives’ Ass'n v, National
Mediation Board, 29 F.3d 655 (D.C. Cir, 1994), modified, 38 F.3d 1224 (D.C. Cir, 1994), the court
explained the settled principle that judicial review is available to detect agency action “taken in excess of
delegated powers" td. at 661 (citing Leedom v. Kyne, 358 U.S. 184, 190), and rejected arguments of

implied authority to act and Chevron delerence in the lace of limited statutory authority. Id. at 670-71, See
alsa, Kohfield v. Dep't of Navy, 75 M.S.P.R. 1, 5-6 (1997.

6

Pleading Number ‘INNIS = Submission date : 2012-01-08 14:44:55 Confirmation Number: MMITTMMMM = page 11 of 25,


prohibited personnel practice ~ it would likely conclude that certain portions of the
restoration regulations are invalid on their face.

Either way — through its power to determine its own jurisdiction or its power to
review the restoration regulations for their potential to require or permit the commission
ofa prohibited personnel practice ~ the Bourd hus the power to reach the issues presented
by the Postal Service.

ases_Has Jurisdiction To Dete’

1.

Jurisdiction

By far the most prominent and most compelling reason to decline to apply the
restoration regulations to other than fully recovered workers or to assignments other than
to regular positions is the Board's general authority to determine its own jurisdiction. In
a related context, it is so fundamental as to be a truism that, “[o}f course, a federal court
always has jurisdiction to determine ils own jurisdiction.” Johnston Bevelopment Group,

J, 1989).

Inc. v. Carpenters Local Union No, 1478, 712 F. Supp, 1174, 1177 n.8 (D.0
See United States v. Mine Workers, 330 U.S, 258, 290 (1947). Consider the
Consequences if this principle were not applicable to the Board. OPM would be tree at
any lime to grant the Board jurisdiction that was clearly beyond OPM’s statutory
authority, and the Board would be powerless to do anything other than exercise the
jurisdiction it had been granted, however improper or improvident the grant of
Jurisdiction may have been, That is why the Federal Circuil has explained that “(he
Board has the authority, intleed the obligation, to determine its own jurisdiction over a
particular appeal.” Parrish v. Aferit Systems Protection Board, 485 03d 1359, 1362

(Fed. Cir, 2007)

3

Pleading Number : Saal Submission date : 2012-01-06 14:44:55 Confirmation Number: {ga page 8 of 26


going one way and the latter going the other — were all regional arbitration awards with
no precedential value beyond the case at hand and, in some cases, the facility or region
where the dispute occurred. In lime, these issues will make their way to a national
arbitration with Postal Service-wide. As a result, anything the Board would say
conceming whether the Postal Service complied with ELM § 546 and Handbook EI.-505
would necessarily be subject to being incorrect — either in the view of an arbitrator in
another regional dispute or in the view of a national arbitrator with authorily to determine
what is, or is not, a violalion of ELM § $46 and Handbook EL-S0S. Further, were the
Board to intrude into this area, the Postal Service would likely be subject to conflicting
bodies of law on this topic -- one developed by the Board and another by arbitrators.
Ey REFRAINING FROM ENFORCING THE RESTORATION

REGULATIONS TO THE EXTENT THEY PURPORT

TO GOVERN ASSIGNMENTS TO OTHER THAN FULLY

RECOVERED WORKERS OR TO OTHER THAN REGULAR

POSITIONS WOULD NOT LEAVE ANY GAPS IN

FECA-BA. PROTECTION, SUCH ASSIGNMENTS

ARE STATUTORILY ASSIGNED TO THE SECRETARY

OF LABOR WHOIS ICIENTLY AND EFFECTIVELY
PROVIDING THEM

At oral argument, Appellants’ counsel suggested that the Postal Service's
jurisdictional arguments would result in gaps in the protection alforded to ill or injured
workers by FECA. It is worth noting again here that the Secretary of Labor, through the
Office of Workers’ Compensation Programs, today administers the provision of
temporary limited duty and permanent assignments for workers who are still recovering
or do not fully recover, See Agency's Opening Brief at 29. Lf the Board concludes on
any of the bases urged by the Postal Service that the restoration regulations should or

cannot be applied to assignments other than to fully recovered workers or other than to

17

Pleading Number Submission date : 2012-01-06 14:44:55 Confirmation Number: Samara page 22 of 25


UNIT

D STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES C, LATHAM,
RUBY N. TURNER,
ARLEATHER REAVES,
CYNTHIA E. LUNDY, and
MARCELLA ALBRIGHT,

Appellants,

Mw

UNITED STATES POSTAL SERVICE,

Ape:

Jamuary 6, 2012

Pleading Number :

“TS NUMBERS
3~10-0408- 1-1
10-0329-[-1

11-0369-1-1
IC-0752-11-0196-1+1

AGENCY'S POST-ARGUMENT BRIEF

Submission date + 2012-01-06 14:44:65

For the Agency:

Williara D, Bubb
Ayoka Campbell
Earl L, Cotton, Sr.
Andrew C. Friedman
‘Theresa M. Gegen
Joshua T. Kipp

United States Postal Service
475 L"Vntant Pl Sw

‘ashington, DC. 20260-1150
2,208.3076 (telephone)
202.268.5402 (facsimile)

Confirmation Number:

paged of 25


commencement of compensation . . . the 1 to resume his former or an equi

position. 5 U.S.C. § 8151(b)CL) (emphasis added), “|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
i

efforts to place, and accord priority to placing, the employee in his former or eg ent

position 6.2.7 5 U.S.C. § B1S1(b)(2) (emphas

ded), Based on the presentation of
Appellants’ counsel and comments and questions from the Board at oral argument, the
emphasized text is the focus of any claim or concern that the provisions of § 8151 are
ambiguous.”

As the Postal Service has previously described, the only reasonable reading of
“overcome” is thal Congress intended to grant rights under § 8151 to ill or injured
workers who fully recovered. First, the right is to the employee's “former or equivalent”
position. Asa result, it is unmistakable that “overcome” must mean that an employee hus
recovered to the point that he or she is able to perform his or her former position, which
is precisely the definition of “fully recovered” that has been assigned by OPM itself. See
5 CFR. § 353.102. The inclusion of “or equivalent” in the description of the position to
which an employee who has overcome his or her injury or disability does not alter this
meaning. The only reasonable reading of “or equivalent” is that Congress wished to
insure thal an employee who has overcome his or her injury or disability is reinstated to a
position with equivalent status, pay, and benelits if his or her former position is not

available. 11 would be unreasonable to read “or equivalent” to mean that Congress

© Appellants’ suggestion that Chevron deference should be afforded to the restoration regulations because
they add sues on which § 8151 is silent, as opposed to ambiguous, should be rejected, Section 8151
does not give a general grant of authority to OPM to regulate concerning restoration, allowing OPM by
regulation to fill in the gaps. 11 gives only specific authority to regulate the limited subsiantive rights
described by Congress in § 41510).

10

Pleading Number : MMSE == Submission dato : 2012-01-08 14:44:55 Confirmation Numb

S obs | page 15 of 25


Cc. THE NATIONAL REASSESSMENT PROCESS DID NOT
IMPOSE NEW STANDARDS VOR ASSIGNING ILL OR INJURED.
EMPLOYEES OR FOR DETERMINING THE AVAILABILTY
OF WORK. SECTION 546 OF THE EMPLOYEE AND LABOR
RELATIONS MANUAL AND HANDBOOK EL-505 APPLIED
BEFORE AND DURING THE NATIONAL REASSESSMENT
PROCESS, AND THEY CONTINUE TO APPLY TODAY

The oral argument revealed a substantial level of misunderstanding concerning
the interplay between the National Reassessment Process (“NRP”) and the provisions of
§ 546 of the Employee and Labor Relations Manual (“ELM”), The NRP was a process
implemented by the Postal Service as part of its overall emphasis on managing efficiency,
productivity, and the size of its complement that was necessitated by the substantial and
enduring declines in mail volume and revenue. |( was, as described at oral argument, a
means of focusing on assignments that the Postal Service was providing to ill or injured
workers, Transcript of Oral Argument at 51. But it did not change the standards the
Postal Service used, or uses today, to evaluate those assignments. Those standards
always were and conlinue to be as articulated in ELM § 546 and Handbook EL-505

When the NRP was announced, several of the Postal Service’s unions raised a
concern that the NRP altered the rules contained in the ELM and llandbook EL-505.
Two unions, the National Association of Letter Carriers (SNALC”) and the National
Postal Mail Handlers Union (“NPMHU”), filed grievances. In resolution of those
disputes, the Postal Service entered into agreements with the NALC and the NPLHU that
were substantively identical and contained the following provisions:

This grievance was filed regarding the Postal Service's application
of the National Reassessment Program (NRP). The grievance
contained three issues. The first issue involves the Union's
contention that through the NRP the Postal Service has

implemented a new ‘necessary work’ standard for the creation and
continuation of limited duty and rehabilitation assignments. The

12

Pleading Number ; b6 Submission date : 2012-01-06 14:44:55 Confirmation Number: ica page 17 of 25


JAMES C, LATHAM vy, UNITED STATES POSTAL SERVICE
Docket # DA-0353-10-0408-I-1
Agency's Post-Argument Brief
Online Interview

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?

Yes

3. Do you declare, under penalty of perjury, that the facts stated in this pleading are true and correct?

Yes

Pleading Number :MNTMBMY Submission date : 2012-01-06 14:44:55 Confirmation Numbor: {AEM = page 3 of 25


Table of Contents

Pleading Interview 3
Uploaded Pleading Text Document 4
Certificate of Service 24

Pleading Number EEN = Submission date: 2012-01-06 14:44:88 Confirmation Number: QMS = page 2 of 25


The Board’s leading opinion on the application of § 2302(bX6), Special Counsel
v. Byrd, 59 MS.P.R. S61 (1993), ae, 39 F.3d 1196 (Fed. Cir. 1994), conticns this
analysis. After quoting the text of § 2302(b)(6), the Board explained the sort of
preterences that are permissible, specifically identifying reemployment rights as among
them:

Thus, an employee with personnel action authority may
give only those preferences authorized by law, rule or regulation.
For example, preterences in recruitment and selection are given by
Congress to veterans, Indians in the Bureau of Indian Affairs,
persons with reemployment tights, handicapped individuals, etc,
See, e. 3 et seq, 307, 352,353... [The preferred
employce] was not a member of any of these groups and
respondents have failed to point to any entitlement to a preference
in her case, Thus, the preference given to [her] was not authorized
by law, rule. or regulation and was violative of § 2302(b)(6).

59 M.S.P.R. 561, 569-70 (1993) (emphasis added), Under Byrd, preferences for FECA
claimants, if authorized by 5 U.S.C. § 8151, would not violate § 2302(b)(6). But if the
Board concludes that OPM's restoration regulations exceed OPM's authority under 5
U.S.C, § 8151, then they necessarily “grant a] preference or advantage nol authorized by
Jaw,” violate $ U.S.C. § 2382(b)(6), and should be declared invalid by the Board under $
U.S.C. § 1204.

Of course, these outcomes ~ a finding by the Board that it lacks jurisdiction and a
finding by the Board that the restoration regulations are invalid under 5 U.S.C. § 1204 -
depend on the Board concluding that OPM excceded its authority under 5 U.S.C, § 8151.
‘The Postal Service believes it has convincingly argued in it briefs that OPM has exceeded
its authority. But regardless of how the Board rules on that issue, it is able to reach it

either in the exercise of ils overarching power to Jelermine its own jurisdiction, through

8

Pleading Number MSM = Submission dato : 2012-01-06 14:44:55 Confirmation Number: AMMEN =—-page 13 of 25


intended (o expand the range of positions with respect to which an employee had a right
of placement or preference based on his or her degree of recovery, And itis noteworthy
on this point that OPM reads “or equivalent” (he same way, The restoration regulations
define a fully recovered individual as someone who “is able to perlorm all the duties of

the position he or she left or an equivalent one” and defines a physically disqualified

individual as someone with an injury or disability that “is considered perman

litle likelihood for impre form the duties

covery” and who is “unable ta_pe'

of the position formerly held or an cquivalent one,” $ C.F.Ro § 353,102 (emphasis
added). @PM itselfhas recognized that “or equivalent” refers to positions that require the
same state of recovery as an employee’s foriner position, On the first issue on which the
Postal Service's analysis of the restoration regulations is based - that Congress only
authorized restoration to employees who are Tully recovered there is no real ambiguity.
On the second issue on which the Postal analysis is based that § 8151 only
authorizes restoration to a regular position there is not even a hint of ambiguity, To the
extent the restoration regulations purport to require an agency to install a FECA claimant
in an assignment thal is other than a regular pasilion, they exceed § 8151's prescription

and cannot form the basis of Board jurisdiction 7

“At oral argument, Appellants’ counsel cited Vitarelli v. Seaton, 359 U.S. 435 (1959) and Service v.
Dulles, 354 U.S, 363 (1957) for the proposition that an agency is bound by its own ruies, These cases da
stand for thal proposition, But as the Postal Service has explained throughout its briefs, “the question
before the Baard is not whether the Postal Service rules must be followed or are enforceable, They must be
and they are, as evidenced by the arbitration decisions relerenced in the Board's Consolidation Order. ‘fhe
Board is concerned with whether it has jurisdiction to enforce the Postal Service's rules under FECA. ft
docs not." Agency's Reply Brief at 2, As described here, enforcement of the Postal Service rules is readily
available and vigorously utilized under the Postal Service's collective-bargaining agreements,

1

Pleading Number IMT == Submission date ; 2012-01-06 14:44:55, Confirmation Number: page 16 of 25