Appellants

Marcel a
Ruby N. oe

Arleather Reaves

Cynthia E. Lund

Agency Representatives

Andrew C. Friedman, Esq.

Great Lakes Area Law Office
United States Postal Service

222 So. Riverside Plaza, Ste. 1200
Chicago, IL 60606-6105

Ayoka A. Campbell, Esq.
Capital Metro Branch Office
United States Postal Service
2901 Scott Futrell Drive
Charlotte, NC 28228-9910

Theresa M. Gegen, Esq.
Southwest Area Law Office
United States Postal Service
P.O. Box 227078

Dallas, TX 75222-7078

Appellant’s Representative
Thomas William Albright

Geraldine Manzo
7700 Edgewater Drive, Suite 656
Oakland, CA 94621-3095

Joshua T. Klipp, Esq.

Pacific Area Law Office
United States Postal Service
1300 Evans Avenue, Room 217
P.O. Box 883790

San Francisco, CA 94188-3790

Earl L. Cotton, Sr., Esq.

Atlantic Area Law Office

United States Postal Service

3980 Dekalb Technology Parkway
Suite 840

Atlanta, GA 30340-2778

Submitted on this 1 day of August, 2011.

itchett, Appellant’s Representative

Administrative Law Representative
POSTAL EMPLOYEE ADVOCATES


UNITED STATES OF AMERICA ;
OFFICE OF PERSONNEL MANAGEMENT
WASHINGTON, pC 20415)

M.S.P.B. Docket Numbers:
DA-0353-10-0408-I-1
Ruby N. Tumer, SF-0353-10-0329-I-1
Arleather Reaves, CH-0353-10-0823-I-1

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Appellants: |
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Cynthia E. Lundy, | AT-0353-11-0369-I-1
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I

James C. Latham,

Marcella Albright, DC-0752-11-0196-I-1
Vv.
United States Postal Service,

Agency. Date: 24 August, 2011

APPELLANT’S BRIEF REGARDING OPM’S ADVISORY OPINION
Pursuant to the Board’s Request of 25 July, 2011, the Appellant responds to the

primary question posed to OPM.

1. Does an agency act arbitrarily and capriciously under 5 C.F.R. § 353.301(d) in
denying restoration to a partially recovered individual when such denial
violates the agency’s internal rules, such as the ELM?

The Board has taken the position that an agency’s denial of restoration to duty to
a partially recovered employee is not arbitrary and capricious provided that the agency
had made a search for work within an employee’s commuting distance (a radius of 50
miles). However, the Board’s interpretation of § 353.301(d) is too narrowly construed.
The search for work within a 50 mile radius is the least requirement that an agency must
perform but not the only one; especially where the agency has its own regulations which
must be considered. So narrow is the Board’s interpretation that they have lost touch
with the basic premise of what is meant by arbitrary and capricious.

Black’s Law Dictionary (Abridged Sixth Edition) provides the following
definitions: Arbitrary

In an unreasonable manner, as fixed or done capriciously or at pleasure. Without
adequate determining principle; not founded in the nature of things; non- -rational; not
done or acting according to reason or judgment; depending on the will alone; absolutely
in power; capriciously; tyrannical; despotic. Without fair, solid, and substantial cause,
that is, without cause based upon the law. Willful and unreasoning action, without
consideration and regard for facts and circumstances presented.


Caprice
Whim, arbitrary, seemingly unfounded motivation. Disposition to change one’s mind
impulsively.

It seems that the Board has so engrossed itself in the language of law that it has
lost sight of the common sense application of the plain language.

The Board has already acknowledged that the Postal Service has internal
regulations in place regarding providing work for an employee who has an accepted
injured-on-duty claim. [See e.g. ELM 546.142, 546.222, EL-505 Section 11, etc.) These
regulations provide guidance to management and are not discretionary.

In the cases that have been raised before the Board, the Postal Service has created
a legal fiction called “operationally necessary tasks”. The implementation of this criteria,
when attempting to locate work for an injured employee, contradicts the agency’s
established regulations and policies (as has been stated by several arbitrators, most
notably Eisenmenger). The fact that the Postal Service failed to comply with their own
rules and regulations is the very definition of arbitrary.

Where it may be true that “there is no general right of appeal to the Board from an
agency’s failure to comply with its own internal rules” (see Cowen v. Dept. of
Agriculture, 13 M.S.P.R. 196, 198-99 (1982)), that is not the issue before OPM. The
issue is whether the Board must consider the agency’s regulations when determining
whether a denial of a request for restoration to duty was arbitrary and capricious.

It is a general principle of administrative law that agencies should follow their
own procedural rules, even when these rules go beyond the rights afforded by any statute
or due process. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).

The agency may not modify a rule sub silentio in a manner that is inconsistent
with the rule as announced and then defending its decision on the basis of a practice
inconsistent with the written rule. See Allentown Mack Sales and Service, Inc. v. NLRB,
522 USS. 359 (1998).

Finally, the agency may not informally adopt a policy that contradicts the terms of
a formally adopted rule. See National Family Planning and Reproductive Health
Association, Inc. v. Sullivan, 979 F.2d 227 (D.C. Cir. 1992).


In order to stay consistent with case law the Board must consider whether the
agency complied with their own regulations when determining if a denial of a request for
restoration to duty is/was arbitrary and capricious. To consider otherwise would create
an unresolved legal conundrum that would unnecessarily consume resources of the
courts.

For Appellant Arleather Reaves:

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JR. Batchett, Appellant’s Representative
POSTAL EMPLOYEE ADVOCATES

86 E. Merrill Road

McCammon, ID 83250-1532

Office: (208) 254-9196

Fax: (208) 254-9197

Email: postalemployeeadvocate@juno.com

CERTIFICATE OF SERVICE
I certify that a true and correct copy of APPELLANT’S BRIEF REGARDING
OPM’S ADVISORY OPINION, was/were sent by regular First-Class Mail, this date, to

each of the following:

Office of Personnel Management Merit Systems Protection Board
Hon. John Berry, Director Office of the Clerk of the Board
Office of Personnel Management 1615 M. Street, NW

1900 E Street, NW Washington, DC 20419-0002

Washington, DC 20415-0001

Appellants Appellant’s Representative

Jam James A. Penna
3212 Villa Place
Amarillo, TX 79106-3354