                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOAN M. YOUNG,                                  DOCKET NUMBER
                  Appellant,                         AT-0752-09-0177-C-2

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: January 9, 2015
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Joan M. Young, Columbia, Tennessee, pro se.

           Dana E. Morris, Esquire, Memphis, Tennessee, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the compliance initial
     decision which granted the agency’s petition for enforcement and denied her
     cross-petition for enforcement. Generally, we grant petitions such as this one
     only when: the initial decision contains erroneous findings of material fact; the


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     initial decision is based on an erroneous interpretation of statute or regulation or
     the erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the compliance initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).
¶2         In our most recent order in this case, the Board denied the appellant’s
     petition for review challenging the validity of a settlement agreement and
     forwarded both the appellant’s and the agency’s allegations of noncompliance to
     the regional office for docketing as cross-petitions for enforcement. See Young v.
     U.S. Postal Service, MSPB Docket No. AT-0752-09-0177-I-1, Final Order at 2
     (Feb. 3, 2014). In that order, the Board found the appellant’s challenge to the
     validity of the settlement agreement resolving her enforced leave appeal
     premature because it focused on the legality of a contingent clause that had not,
     and may never be, triggered.        Final Order at 5.   In reviewing the parties’
     submissions, however, the Board found that both parties alleged that the other
     was in noncompliance with the primary terms of the settlement agreement, and
     we forwarded the parties’ allegations to the regional office for consideration in
     the first instance. Final Order at 2, 7.
¶3         Upon receiving the petition and cross-petition for enforcement, the
     administrative judge took additional argument from the parties and issued a
     compliance initial decision finding that the agency was in compliance with the
                                                                                      3

     settlement agreement and that the appellant was not in compliance.          MSPB
     Docket No. AT-0752-09-0177-C-2 (C-2), Compliance File (CF), Tab 11,
     Compliance Initial Decision (CID) at 2.         In reaching these findings, the
     administrative judge rejected the appellant’s argument that the agency will breach
     the terms of the settlement if it submits certain questions to the appellant’s
     forensic psychiatrist concerning her fitness for duty because the questions the
     agency proposes to submit “are tailored to elicit information from the examining
     psychiatrist regarding the risk of harm posed by the appellant’s performance in
     the position at issue.”   CID at 5; C-2, CF, Tab 10 at 10 (listing of agency
     questions). The administrative judge found this line of anticipated questioning
     consistent with the Board’s prior order which confirmed that, under the terms of
     the settlement agreement, the agency may communicate with the appellant’s
     examining psychiatrist to the extent necessary to provide the job requirements
     and standards that the appellant must meet to be deemed medically capable of
     returning to her former position.       CID at 5; see Young v. U.S. Postal
     Service, 117 M.S.P.R. 211, ¶ 20, aff’d, 494 F. App’x 65 (Fed. Cir. 2012). In his
     compliance initial decision, the administrative judge also found that the appellant
     was not in compliance with the settlement agreement because she had failed to
     choose a forensic psychiatrist to conduct the independent medical examination
     within the time period specified by the settlement agreement, and he ordered her
     to comply with the terms of the settlement agreement by choosing and paying for
     a forensic psychiatrist and undergoing an independent medical examination
     within 3 weeks of the order becoming final. CID at 5-7.
¶4        The appellant has filed a petition for review of the compliance initial
     decision in which she raises several challenges to both the Board’s most recent
     final order and a previous decision issued by the U.S. Court of Appeals for the
                                                                                             4

     Federal Circuit.    C-2, Petition for Review (PFR) File, Tab 5 at 15-22. 2           The
     agency has filed a response in opposition to the petition for review, and the
     appellant has filed a reply. PFR File, Tabs 10-11.
¶5         We have reviewed both the administrative judge’s compliance initial
     decision and the appellant’s petition for review, and we find no reason to disturb
     the administrative judge’s findings that the agency is in compliance with the
     settlement agreement and that the appellant is not. As suggested above, this is
     not the first time a petition for enforcement has been filed in this case.           The
     Board has previously found that the agency breached the terms of the settlement
     agreement by providing certain agency records to the appellant’s forensic
     psychiatrist and interfering with the independent nature of the medical
     examination.     See Young, 117 M.S.P.R. 211, ¶¶ 15, 17.               In reaching this
     conclusion, however, the Board specified that the agency was permitted to
     provide the forensic psychiatrist with agency records “to the extent necessary to
     provide the examining psychiatrist with the appellant’s job requirements and the
     standards she must meet to be deemed medically capable of returning to her
     former position.” Id., ¶ 14; see id., ¶ 20.
¶6         The administrative judge concluded in the instant petition for enforcement
     that the agency’s proposed questions concerning the appellant’s abilities to
     perform the functions of her former position without creating a substantial risk of
     harm to herself or others fell within this permissible category of information.
     CID at 4-5.    We agree that these questions address the agency’s general “job
     requirements and standards that the appellant must meet to be deemed medically
     capable of returning to her former position,” Young, 117 M.S.P.R. 211, ¶ 20; see
     C-2, CF, Tab 5 at 7, and we find that the appellant has failed to establish that this
     information interferes with the independence of the medical examination, see

     2
       To the extent the appellant contests the Board’s prior final order finding her challenge
     to the validity of the settlement agreement premature, we find that the appellant has
     presented no basis for us to reconsider our prior final order. See 5 C.F.R. § 1201.118.
                                                                                           5

     Brown v. U.S. Postal Service, 88 M.S.P.R. 113, 115 (2001) (the party seeking
     compliance bears the burden of proof on a petition for enforcement); CID at 5
     (citing and discussing the agency’s management instruction concerning the scope
     and purpose of a fitness for duty examination).            As the Board previously
     explained, pursuant to the terms of the settlement agreement, the agency must be
     allowed to provide some basic information to the appellant’s forensic psychiatrist
     in order for him or her to conduct a meaningful medical examination to determine
     if the appellant is medically capable of returning to her former position.          See
     Young, 117 M.S.P.R. 211, ¶ 14; see also Young, 494 F. App’x at 67. We thus
     concur with the administrative judge that the agency will not breach the
     settlement agreement by submitting the proposed questions to the forensic
     psychiatrist. CID at 4-5; see C-2, CF, Tab 10 at 10, Tab 5 at 16-17. 3
¶7         We further agree with the administrative judge that the agency has
     established that the appellant is in noncompliance with the settlement agreement
     based upon her failure to select a new forensic psychiatrist and undergo an
     independent medical examination.       CID at 5-6; see Young, 117 M.S.P.R. 211,
     ¶¶ 17, 19 (permitting the appellant to select a new forensic psychiatrist following
     the agency’s breach of the settlement agreement). The record reflects that the
     appellant has not yet made her selection or undergone the independent medical
     assessment as outlined in the settlement agreement, and we agree with the
     administrative judge that the appellant is in noncompliance with the settlement
     agreement based upon her failure to do so. CID at 5.

     3
        Although the document containing these questions was discussed at length in the
     Board’s prior Opinion and Order finding the agency in noncompliance, neither the
     Board nor the Federal Circuit found that the questions contained within this document
     interfered with the independent nature of the forensic psychiatrist’s examination. See
     Young, 117 M.S.P.R. 211, ¶¶ 6, 15 (finding that the agency’s identification of specific
     medical conditions, and its request that the psychiatrist provide a forensic analysis of
     these conditions, interfered with the medical independence of the fitness for duty
     examination); see also Young, 494 F. App’x at 67. We are not convinced by the
     appellant’s argument on review that this issue has already been resolved by the Board in
     its prior decisions. See, e.g., PFR File, Tab 5 at 20-21.
                                                                                       6

¶8        For the aforementioned reasons, the administrative judge’s compliance
     initial decision finding the agency in compliance with the settlement agreement
     and the appellant in noncompliance with the agreement is AFFIRMED, and the
     appellant’s petition for review is DENIED. The appellant is hereby ORDERED
     to choose and pay for a forensic psychiatrist and to submit to an independent
     medical examination to assess her current medical restrictions within 3 weeks of
     the date of the Board’s order becoming final.      See Young, 117 M.S.P.R. 211,
     ¶¶ 18-20.   The appellant must notify the agency of the forensic psychiatrist’s
     name as soon as the appointment is made and no later than 4 days prior to the
     date of the appointment.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
          You have the right to request review of this final decision by the United
     States Court of Appeals for the Federal Circuit. You must submit your request to
     the court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

          The court must receive your request for review no later than 60 calendar
     days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
     27, 2012). If you choose to file, be very careful to file on time. The court has
     held that normally it does not have the authority to waive this statutory deadline
     and that filings that do not comply with the deadline must be dismissed. See
     Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
          If you need further information about your right to appeal this decision to
     court, you should refer to the federal law that gives you this right. It is found in
     Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
     Dec. 27, 2012). You may read this law as well as other sections of the United
                                                                                7

States   Code,   at   our    website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
