[Federal Register: October 13, 1998 (Volume 63, Number 197)]
[Notices]               
[Page 54734-54735]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13oc98-114]

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MERIT SYSTEMS PROTECTION BOARD

 
Opportunity To File Amicus Briefs in Bracey v. Office of 
Personnel Management, MSPB Docket No. DC-831E-97-0643-I-1, and Wilson 
v. Office of Personnel Management, MSPB Docket No. AT-844E-97-0645-I-1

AGENCY: Merit Systems Protection Board.

ACTION: The Merit Systems Protection Board has requested an advisory 
opinion from the Director of the Office of Personnel Management (OPM) 
concerning the interpretation of regulations promulgated by OPM. The 
Board is providing interested parties with an opportunity to submit 
amicus briefs on the same questions raised in the request to OPM. The 
Board's request to OPM is reproduced below:

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    ``Pursuant to 5 U.S.C. 1204(e)(1)(A), the Merit Systems Protection 
Board requests an advisory opinion concerning the interpretation of 
regulations promulgated by the Office of Personnel management.
    ``Background. The appellants in the above-captioned cases became 
unable to perform the duties of their most recently-held positions of 
record because of medical conditions. In each case the employing agency 
provided the

[[Page 54735]]

appellant with light duty, and in each case the light duty assignment 
ended due to a wide-ranging reduction in force that was not directed 
specifically at eliminating light-duty assignments. The Office of 
Personnel Management (OPM) denied the appellants' applications for 
disability retirement on the ground that the employing agencies had 
`accommodated' the appellants' medical conditions.
    ``Applicable regulations. The Bracey appeal arises under the Civil 
Service Retirement System (CSRS). The governing CSRS regulations 
promulgated by OPM provide in pertinent part that an individual is 
entitled to a disability annuity only if, inter alia: He or she, `while 
employed in a position subject to the [CSRS],' became `disabled because 
of a medical condition, resulting in a service deficiency in 
performance, conduct, or attendance, or if there is no actual service 
deficiency, the disabling medical condition must be incompatible with 
either useful and efficient service or retention in the position'; and 
the employing agency is `unable to accommodate the disabling medical 
condition in the position held or in an existing vacant position.' 5 
CFR 831.1203(a)(2), (4).
    ``For purposes of the CSRS regulations, disabled means: unable * * 
* because of disease or injury, to render useful and efficient service 
in the employee's current position, or in a vacant position in the same 
agency at the same grade or pay level for which the individual is 
qualified for reassignment.
    ``5 CFR 831.1202. Accommodation means: an adjustment made to an 
employee's job or work environment that enables the employee to perform 
the duties of the position. Reasonable accommodation may include 
modifying the worksite; adjusting the work schedule; restructuring the 
job; obtaining or modifying equipment or devices; providing 
interpreters, readers, or personal assistants; and reassigning or 
retraining the employee.
    ``Id. Vacant position means: an unoccupied position of the same 
grade or pay level and tenure for which the employee is qualified for 
reassignment that is located in the same commuting area and is serviced 
by the same appointing authority of the employing agency.
    ``Id. The Wilson appeal arises under the Federal Employees' 
Retirement System (FERS). The governing FERS regulations promulgated by 
OPM differ somewhat from the CSRS regulations quoted above. The FERS 
regulations provide in pertinent part that an individual is entitled to 
a disability annuity only if, inter alia: He or she, `while employed in 
a position subject to FERS,' became `disabled because of a medical 
condition, resulting in a deficiency in performance, conduct, or 
attendance, or if there is no such deficiency, the disabling medical 
condition must be incompatible with either useful and efficient service 
or retention in the position'; `[a]ccomodation of the disabling medical 
condition in the position held' is `unreasonable'; and the individual 
did `not * * * decline[] an offer of reassignment to a vacant 
position.' 5 CFR 844.103(a)(2), (4), (5).
    ``5 CFR 844.102. Accommodation means: a reasonable adjustment made 
to an employee's job or work environment that enables the employee to 
perform the duties of the position. Accommodation may include modifying 
the worksite; adjusting the work schedule; restructuring the job; 
obtaining or modifying equipment or devices; providing interpreters, 
readers, or personal assistants; and retraining the employee.
    ``Id. Vacant position means: an unoccupied position of the same 
grade or pay level and tenure for which the employee is qualified for 
reassignment that is located in the same commuting area and, except in 
the case of a military reserve technician, is serviced by the same 
appointing authority of the employing agency.
    ``Id. Request for an advisory opinion. The Board requests an 
advisory opinion on the following related questions concerning the 
above-quoted regulations:
    ``(1) Is a light-duty assignment considered a `position' under the 
CSRS and FERS regulatory definitions of `disabled,' `accommodation,' 
and `vacant position,' when the light-duty assignment does not 
constitute an established position in the employing agency?
    ``(2) If an employee covered by the CSRS cannot perform the duties 
of his or her position of record or any established position in the 
employing agency, is a light-duty assignment an `accommodation' under 5 
CFR 831.1203(a)(4)?
    ``(3) If an employee covered by FERS cannot perform the duties of 
his or her position of record or any established position in the 
employing agency, is a light-duty assignment a `reasonable 
accommodation' under 5 CFR 844.103(a)(4)?''

DATES: All briefs in response to this notice shall be filed with the 
Clerk of the Board on or before November 12, 1998.

ADDRESSES: All briefs should include the case names and docket numbers 
noted above (Bracey v. Office of Personnel Management, MSPB Docket No. 
DC-831E-97-0643-I-1, and Wilson v. Office of Personnel Management, MSPB 
Docket No. AT-844E-97-0645-I-1) and be entitled ``Amicus Brief.'' 
Briefs should be filed with the Office of the Clerk, Merit Systems 
Protection Board, 1120 Vermont Avenue, NW, Washington, DC 20419. 
Parties wishing to obtain copies of the initial decisions in Bracey and 
Wilson should contact one of the individuals listed below.

FOR FURTHER INFORMATION CONTACT:
Shannon McCarthy, Deputy Clerk of the Board, or Matthew Shannon, 
Counsel to the Clerk, (202) 653-7200.

    Dated: October 5, 1998.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 98-27283 Filed 10-9-98; 8:45 am]
BILLING CODE 7400-01-M