Young v. USPS , 628 F. App'x 750 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOAN M. YOUNG,
Petitioner
v.
UNITED STATES POSTAL SERVICE,
Respondent
______________________
2015-3095
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-09-0177-C-2.
______________________
Decided: October 13, 2015
______________________
JOAN M. YOUNG, Columbia, TN, pro se.
MATTHEW PAUL ROCHE, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by REGINALD T. BLADES, JR., ROBERT E. KIRSCHMAN,
JR., BENJAMIN C. MIZER.
______________________
Before PROST, Chief Judge, WALLACH, and TARANTO,
Circuit Judges.
2 YOUNG v. USPS
PER CURIAM.
Joan Young worked as a rural mail carrier for the
United States Postal Service. After the Postal Service
placed her on enforced leave in 2008, she appealed to the
Merit Systems Protection Board, but the parties entered
into a settlement agreement before the appeal was heard.
In the agreement, Ms. Young promised to select a psychi-
atrist to examine her to determine whether she could
return to work either in her previous capacity or as a
clerk at a specified nearby post office. A dispute then
arose about enforcing the agreement. In the current
round of that dispute, Ms. Young has contended that the
Postal Service would breach the agreement if it submitted
certain questions to the psychiatrist, and the Postal
Service has contended that Ms. Young was out of compli-
ance with the agreement because she had not selected a
psychiatrist for the required examination—actually for
the required second examination, the Board having
earlier found, agreeing with Ms. Young, that the first
examination was flawed. The Board ruled that the Postal
Service may submit the questions at issue to the psychia-
trist and that Ms. Young, by not yet having chosen a
psychiatrist for the (second) examination, was out of
compliance with her obligations under the settlement
agreement. We affirm.
BACKGROUND
The Postal Service employed Ms. Young as a rural
mail carrier at a post office in Columbia, Tennessee.
Effective November 21, 2008, the Postal Service placed
her on leave from her position, stating that she was
unable to perform the duties of her regular assignment.
Ms. Young appealed to the Board to challenge the en-
forced leave as a suspension of more than 14 days. See 5
U.S.C. § 7512(2). Before any hearings took place, Ms.
Young and the Postal Service entered into a settlement
agreement. An administrative judge reviewed the agree-
YOUNG v. USPS 3
ment, accepted it into the record for enforcement purpos-
es, and dismissed the appeal on April 2, 2009.
The settlement agreement provides as follows: The
Postal Service will reinstate Ms. Young if a psychiatrist,
following an independent examination of Ms. Young,
states that she is able to return to her former position. If
the psychiatrist concludes otherwise, Ms. Young will
accept a position as a clerk in the post office at Murfrees-
boro, Tennessee, if such a position is available and she is
able to do the job. Ms. Young may select a psychiatrist on
her own, in which case she will pay the psychiatrist, or
she may select a psychiatrist jointly with the Postal
Service, in which case the Postal Service will pay.
Ms. Young chose the first option, and the selected
psychiatrist evaluated her on April 15, 2009. On that
date, the Postal Service faxed the psychiatrist a letter,
asking him to analyze Ms. Young for specific medical
conditions for which she had previously been treated or
evaluated. The Postal Service attached various agency
records, such as medical reports and information related
to a worker’s compensation claim. The psychiatrist
concluded that Ms. Young was not capable of returning to
her position. Ms. Young then filed a petition for enforce-
ment on May 14, 2009, claiming that the fax interfered
with the independence of the medical evaluation.
The administrative judge, and the Board on review,
interpreted the settlement agreement to permit the Postal
Service to give the psychiatrist information about the
requirements of Ms. Young’s job and the standards she
must meet to be medically capable of returning to her
position, but not to give the psychiatrist Ms. Young’s
agency records. The Board ordered the Postal Service to
allow Ms. Young to submit a new independent medical
examination. Ms. Young appealed to this court, arguing
that the Board had added a new term to the agreement by
allowing the Postal Service to inform the examining
4 YOUNG v. USPS
psychiatrist of the requirements of her former position,
and we affirmed. Young v. USPS, 494 F. App’x 65, 67
(Fed. Cir. 2012).
On June 19, 2013, Ms. Young filed with the Board a
petition for review of the four-year-old initial decision of
the administrative judge (dated April 2, 2009) in which
the judge had accepted the settlement agreement. In the
petition for review, Ms. Young challenged the validity of
the agreement. Her challenge centered on a contingency
in the settlement agreement, which states that if a psy-
chiatrist determines that she is unable to return to her
original position and if the specified alternative position
in Murfreesboro is still available at that time, she will
accept the Murfreesboro position. The Board rejected the
challenge on February 3, 2014, and denied the petition. It
reasoned that the challenge was premature, because Ms.
Young had yet to receive the agreement-required inde-
pendent psychiatric evaluation, free of information the
Board had earlier held the Postal Service must not pro-
vide to the psychiatrist, so that the contingency clause
had not yet been triggered.
The Postal Service not only had opposed Ms. Young’s
petition for review but also had moved to enforce the
agreement. The Board forwarded the motion for enforce-
ment to the regional office for adjudication by an adminis-
trative judge. In addition, although Ms. Young had not
formally filed a petition for enforcement, the Board de-
termined from the record that she was in fact alleging
that the Postal Service was not in compliance with the
settlement agreement. Therefore, the Board forwarded
those allegations to the regional office to be docketed with
the forwarded Postal Service enforcement request as a
cross-petition for enforcement.
In July 2014, an administrative judge addressed the
cross-petitions for enforcement. Although Ms. Young
continued to argue about the validity of the settlement
YOUNG v. USPS 5
agreement, the administrative judge interpreted her
petition for enforcement to concern “the agency’s alleged
intention to provide the examining psychiatrist with
‘questions of such an outrageous, leading and biased
nature as to preclude any semblance of fairness in the
examination.’ ” Young v. USPS, AT-0752-09-0177-C-2,
2014 WL 3589700, at *2–3 (MSPB July 15, 2014). The
Postal Service, for its part, claimed that Ms. Young had
not yet complied with the settlement agreement because
she had not selected a psychiatrist to conduct the
(re)examination.
The administrative judge denied Ms. Young’s petition
and granted the agency’s. The administrative judge
determined that the questions the agency planned to
provide to the evaluating psychiatrist were proper, com-
ing directly from the Postal Service’s fitness-for-duty
instructions, which set out the current functional re-
quirements for the position of Rural Carrier. Because
those questions were “reasonably calculated to elicit
information” necessary to determine whether Ms. Young
may return to work, the administrative judge held that
the agency’s transmittal of such questions would not
breach the settlement agreement. Id. at *5. On the other
hand, the administrative judge concluded, Ms. Young had
not complied with the agreement because she neither
selected a psychiatrist nor provided a valid excuse for her
failure to do so.
Ms. Young petitioned for review by the Board, which
denied the petition and affirmed the administrative
judge’s decision. Although Ms. Young restated her disa-
greement with the Board’s February 2014 decision finding
her challenge to the settlement agreement to be prema-
ture, the Board noted that the February 2014 decision
was final and concluded that Ms. Young had presented no
basis to reconsider the final order.
6 YOUNG v. USPS
Ms. Young appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless it is arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with the law; reached in violation of proce-
dures required by law, rule, or regulation; or unsupported
by substantial evidence. 5 U.S.C. § 7703(c); Addison v.
Dep’t of Health & Human Servs., 945 F.2d 1184, 1186
(Fed. Cir. 1991). We find no basis for disturbing the
Board’s decision.
Ms. Young makes numerous arguments regarding the
validity of the settlement agreement, the subject of the
Board’s February 2014 decision. But that decision, deny-
ing Ms. Young’s petition to review the April 2009 initial
decision to accept the settlement agreement, was a final
decision under 5 C.F.R. § 1201.113(b). Ms. Young had the
opportunity to appeal the final decision to this court
within sixty days. 5 U.S.C. § 7703(b)(1)(A). She did not
do so, and this court therefore may not consider her
arguments. See Stoots v. Dep’t of Def., 273 F. App’x 941,
944 (Fed. Cir. 2008); Monzo v. Dep’t of Transp., 735 F.2d
1335, 1336 (Fed. Cir. 1984).
The only permissible subject of this appeal is the
Board’s new enforcement decision, but we find no reversi-
ble error in that decision. Although Ms. Young contends
that the settlement agreement does not allow any com-
munication between the agency and psychiatrist, that
question was settled against Ms. Young by this court’s
decision in Young, 494 F. App’x at 67, which affirmed the
Board’s decision that “[t]he agency may communicate
with the examining psychiatrist to the extent necessary to
provide the job requirements and standards that the
appellant must meet in order to be deemed medically
capable of returning to her former position.” That ruling
YOUNG v. USPS 7
is binding here. See Morgan v. Dep’t of Energy, 424 F.3d
1271, 1274 (Fed. Cir. 2005).
To the extent that Ms. Young more narrowly chal-
lenges the Board’s allowance of the particular questions
the Postal Service proposes to transmit to the psychia-
trist, we see no error in the Board’s determination that
the settlement agreement permits those questions—which
are “reasonably calculated to elicit information” about the
subject of the agreement-required examination, namely,
whether Ms. Young is capable of returning to her original
position. J.A. 28. The proposed questions are drawn from
the Postal Service’s fitness-for-duty examination, which
the Postal Service uses “to determine whether or not an
employee is medically able to perform his or her job
responsibilities.” J.A. 89. As the administrative judge
stated, the fitness-for-duty examination and the medical
examination to which Ms. Young agreed are similar in
purpose. Ms. Young makes no showing to the contrary.
We also find no error in the Board’s separate determi-
nation that Ms. Young is not in compliance with the
settlement agreement because she has not selected a new
forensic psychiatrist and undergone an independent
medical (re)examination. Although Ms. Young argues
that she diligently searched for a psychiatrist and was in
communication with the Postal Service about the exami-
nation before filing the June 2013 petition for review,
there is no dispute that Ms. Young has not selected a
psychiatrist since this court, in 2012, affirmed the Board’s
decision ordering “the agency to allow [Ms. Young] to
submit to a new independent medical examination.” J.A.
60; Young, 494 F. App’x at 68. Thus, the Board properly
concluded that Ms. Young is in violation of the settlement
agreement.
CONCLUSION
For the foregoing reasons, the judgment of the Board
is affirmed.
8 YOUNG v. USPS
No costs.
AFFIRMED