In a precedent setting decision, the Merit Systems Protection Board gave
new hope to federal employees who were wrongfully terminated because they
required a modified duty assignment to accommodate a compensable injury.
The Merit Systems Protection Board ruled that it has jurisdiction to hear
restoration appeals when a denial of restoration is in violation of agency-specific
In the case of
Latham, et al. v. USPS, five federal employees appealed to the Board after they were removed
from their limited duty assignments with the United States Post Office
under the National Reassessment Process. In each case, the Postal Service
stated that no operationally necessary tasks were available within the
confines of each federal employee's medical restrictions. The Postal
Service instructed the employees not to return to work until they received
notice that such work was available. On appeal, each federal employee
claimed that the Agency committed disability discrimination in eliminating
their limited duty assignments. Particularly, as the tasks they were performing
continued to be completed by overly taxed non-disabled employees. Furthermore,
they argued that in eliminating these positions the Agency was in violation
of its own Employee and Labor Relations Manual as well as other various
For the Board to have jurisdiction over a restoration appeal the Appellant
must be able to prove:
- He was absent from his position due to a compensable injury;
- He recovered sufficiently to return to duty on a part-time basis or to
return to work in a position with less demanding physical requirements
than those previously required of him;
- The agency denied his request for restoration; and
- The denial was arbitrary and capricious because of the Agency's failure
to perform its obligations under 5 C.F.R. § 353.301(d).
On appeal, the Postal Serivce argued that OPM's regulations regarding
restoration to individuals who had partially recovered were invalid on
the grounds that: (1) The statute authorizing OPM to issue the regulations,
5 U.S.C. § 8151(b), provides restoration rights only to fully recovered
individuals; and (2) the statute provides only for restoration to work
that comprises the essential functions of an established position. The
Merit Systems Protection Board noted that in its own Employee and Labor
Relations Manual the United States Postal Service agreed to restore partially
recovered individuals to duty in whatever tasks are available, regardless
of whether those tasks comprise the essential functions of an established position.
Finding that the issue on appeal centered on an interpretation of a OPM
regulation, the Merit Systems Protection Board asked the OPM for an advisory
opinion as to whether or not an agency acts arbitrarily and capriciously
in violating the agency's own internal rules in denying restoration
to a partially recovered individual. In their advisory opinion the OPM
stated that the phrase "at a minimum" in 5 C.F.R. § 353.301(d)
anticipates that an agency may adopt additional agency-specific requirements
pertaining to the restoration of partially recovered individuals and that
the regulation requires "compliance with an agency's own rules
as well as the provisions of OPM regulation, at least where they confer
additional protections or benefits on the employee."
The Merit Systems Protection Board agreed.
The Board held that the Agency has a legal obligation to enforce its own
restoration regulations even if they are above and beyond the "minimum"
requirements by statue. This is not to say that every federal employee
within the United States Postal Service who is terminated from a modified
assignment is entitled to appeal to the Merit Systems Protection Board
In light of the complexities inherent to litigation, it may be best to
consult with an attorney experienced in federal employment and Merit Systems
Protection Board procedure to evaluate your claim for reinstatement against
the Postal Service.