i
;
| 4:/2D
2d Session
PRINT No. 95–20
B 596421
FORCED RETIREMENT/PSYCHIATRIC
FITNESS FOR DUTY EXAMS
SUBCOMMITTEE ON COMPENSATION AND
EMPLOYEE BENEFITS
OF THE
COMMITTEE ON
EPOST OFFICE AND CIVIL SERVICE
HOUSE OF REPRESENTATIVES
NINErrºriſ congnesius Unwersºl,
SECOND SESSION of Michigaº -
Referemº”
NOVEMBER 3, 1978
MAR 1979
Printed for the use of the Committee on Post Office and Civil Service
D.S. GOVERNMENT PRINTING OFFICE
34–292 WASHINGTON : 1978

COMMITTEE ON POST OFFICE AND CIVIL SERVICE
ROBERT N. C. NIX, Pennsylvania, Chairman
MORRIS K. UDALL, Arizona, Vice Chairman
JAMES M. HANLEY, New York EDWARD J. DERWINSKI, Illinois
CHARLES H. WILSON, California JOHN H. ROUSSELOT, California
RICHARD C. WHITE, Texas JAMES M. COLLINS, Texas º
WILLIAM D. FORD, Michigan GENE TAYLOR, Missouri P.;
WILLIAM (BILL) CLAY, Missouri. BENJAMIN A. GILMAN, New York
PATRICIA SCHROEDER, Colorado TRENT LOTT, Mississippi
WILLIAM LEHMAN, Florida º IIM LEACH, Iowa
GLADYS NOON SPELLMAN, Maryland TOM CORCORAN, Illinois
HERBERT E. HARRIS II, Virginia
STEPHEN J. SOLARZ, New Jersey
MICHAEL O. MYERS, Pennsylvania
CECIL (CEC) HEFTEL, Hawaii
ROBERT GARCIA, New York
RALPH. H. METCALFE, Illinois
LEO J. RYAN, California
DAvid MINron, Executive Director and General Counsel
Throporr J. KAzY, Minority Staff Director
Robert E. LockHART, Deputy General Counsel
J. PIERCE MYERs, Assistant General Counsel
HERMAN THoMPson, Assistant General Counsel
JAMES CREGAN, Assistant General Counsel
SUBCOMMITTEE ON COMPENSATION AND EMPLOYEE BENEFITs
GLADYS NOON SPELLMAN, Maryland, Chair
CECIL (CEC) HEFTEL, Hawaii JIM LEACH, Iowa
WILLIAM D. FORD, Michigan John H. Rousselot, California
HERBERT E. HARRIS II, Virginia w
ROBERT GARCLA, New York
(Ron McCluskey, Subcommittee Staff Director, Room B-345(d) Rayburn Building—Ext. 56831)
(II)-
INTRODUCTION
The Chair of the Subcommittee on Compensation and Employee
Benefits on September 1, 1976, requested a General Accounting
Office study on the “extent to which Federal agencies have required
employees to be examined to determine their fitness for duty and the
wº the practice has been applied.”
n May 13, 1977, the General Accounting Office report, B-179810,
entitled, “Extent of Use and Application of Fitness for Duty Exam-
inations by Federal Agencies,” was released, and a study begun on
this question by the subcommittee staff.
In December of 1977, subcommittee staff members in response to a
request for an investigation by the President of the Social Security
Local, 19760, AFGE interviewed management and union officials at
the Northeastern Program, Service Center, Social Security Admin-
tration, Flushing, N.Y. During the same month, the staff of Congress-
man Walter Fauntroy discussed with subcommittee staff members
materials gathered as the result of Congressman Fauntroy's ad hoc
hearings on June 29, and July 1, 1976. {. *
The Chair of the Subcommittee on Compensation and Employee
Benefits, convened an oversight hearing on February 28, 1978.
Testimony was taken, and statements and correspondence were en-
tered in the record, on procedures and the validity of examinations
under the procedural circumstances. * * ,
The only statutory authority directly authorizing fitness for duty
examinations for employees is provided in the disability retirement
law, at 5 U.S.C. 8337(c). The disability retirement statute provides
annuities for employees with over 5 years of civilian service who are
no longer able to perform within their general occupation. Under this
provision, the Civil Service Commission must determine that the
subject employee has become disabled, and thus, is eligible for a
retirement annuity. This section applies to both voluntary and in-
voluntary disability retirements. Also 5 U.S.C. 8347(c), gives the Civil
Service Commission authority to issue regulations to adjudicate claims,
which decisions are final and not subject to review. Furthermore,
5 U.S.C. 8347(c) authorizes the Commission to direct medical or
other examinations to determine the facts concerning disability or
dependency of an individual receiving or applying for annuity under
this provision. The Commission may suspend or deny annuity for
failure to submit to the examination. Pursuant to these two provisions,
the Commission has promulgated regulations covering disability
retirement in 5 CFR, section 831.1201, et seq. &
The authority to require Federal employees to submit to fitness for
duty examinations for reasons other than disability retirement is
based on Executive Order 9830, section 01.3(d), 12 Fed. Reg. 1259,
(1947), and an unpublished opinion letter, B-155489, dated December
10, 1964, from the §. General to the Chairman of the Civil
Service Commission in relation to the proposed publication of Federal

(1) -
2
Personnel Manual, chapter 339. This opinion letter supported the
ayment of fees for medical examinations required by management
or employees directed to submit to fitness for duty procedures. The
letter assumed the right of the Commission to order such examinations
in connection with adverse action procedures and also assumed the
right of the Commission in connection with the same procedures to
order mental and psychological examinations as well as physical
examinations. -
The question, quoted in the letter from an earlier Civil Service
Commission correspondence dated November 13, 1964, is as follows:
However, before issuing this material our decision is requested as to whether
there is any objection to this proposed Federal Personnel Manual installment,
particularly those parts which state that, “A fitness for duty medical examination
to be obtained at no cost to the employee or the Civil Service Commission will
be valuable in counseling the employee and in determining the feasibility of the
alternative actions available to the agency or the employee and that the agency
shall pay the physician's fee when the employee is examined by a physician of
is own choice.” -
It was from this letter—the affirmative response of the Comptroller
General as to fees, and the assumptions of legal authority—that the
present agency fitness for duty examination indirectly authorized by
adverse action statutes emerged. It results in, what is gently referred
to as “counseling.” FPM, chapter 339 was issued and has been applied
since. It should be noted that the combining in one regulation of
matters related to both adverse action proceedings and disability
retirement may be in conflict with Washington v. Jacobs 458 F.2d 785
(D.C. Cir., 1972), where the courts of appeals sharply distinguished
these two proceedings in finding that invalidity in one had no legal
impact on the other. g
#. findings of the General Accounting Office report, based on an
incomplete survey of Federal agencies from July 1, 1973, until the
date of the release, revealed that a total of 2,518 employees were
subjected to fitness for duty examinations. The Department of De-
fense, in a letter dated February 23, 1978, stated that it alone had
initiated 1,150 examinations in 1977. Thus, the General Accounting
Office figures may be the tip of the iceberg. At any rate, an increase
in the use of fitness for duty examinations is indicated. No central
source of figures exists because FPM, chapter 339, examinations are
not known to the Civil Service Commission as to the number nor
quality, since its role is an advisory one. Of the 2,464 cases analyzed,
45 percent resulted in an employee being found fit for duty. There
was no breakdown in the report, as to what proportion of cases in-
volving involuntary psychiatric examinations was found fit for duty;
but the º fitness for duty examinations during the report
tºº. totaled 790, or 22 percent. However, other information supplied
y º: organization officials indicated that a significant per-
centage of employees who must appear for psychiatric fitness for duty
examination are returned to duty. In some cases employees are re-
examined after a time and returned to duty once again. - . .
The key fact revealed by the General Accounting Office report is
that only 1 percent of the cases involved agency-filed disability retire-
ment. Thus, the influence of the Civil Service Commission is in fact
limited. The vast majority of examiations are beyond their authority.
Of the total number of examinations, 35 percent resulted in volun-
tary applications for disability retirement; so that it would appear
3
that a reasonable number of the FPM chapter 339 examinations re-
sulted in voluntary separation by employees. Therefore, the Civil
Service protections for employees can be said to cover very few em-
Plº caught up in the fitness for duty program.
here was general agreement during §ºj, 28, 1978, hearing
that involuntary, psychiatric examinations were not helpful to the
Government, unfair to the employees and that the agencies placed
psychiatrists in an impossible position. Confusion exists as to whether
the Federal Government would permit involuntary psychiatric fitness
for duty examinations in the case of agency-filed disability retirements.
In re King, docket 5, U.S. Civil Service Commission, July 21, 1977,
an administrative law judge's decision held that involuntary psy-
chiatric examinations are permissible in cases of agency-filed dis-
ability retirement applications, citing the case of Pryor v. United
States, 212 Ct. Claims 578, January 5, 1977, 76–1599 certiorari denied,
U.S. Supreme Court.
Material available to the general public within recent years raises
serious questions as to the scientific precision of the art of psychiatry
as applied to the work place.
For example, the February 27, 1978, U.S. News Report carried
an interview with Dr. Jonas Robitscher, an authority on psychiatry
and law, entitled “Do Psychiatrists Have Too Much Power?” The
article was placed in the February 28, 1978, subcommittee hearing
record, serial No. 95–62, at pages 52 through 56.
The following quotation appears on page 55 of the record:
Question. Do you see dangers in the use of psychiatrists by employers to deter-
mine who is a candidate for promotion or who should be fired under certain cir-
cumstances?
Answer. Yes. There's a whole field of industrial psychiatry and psychology that
deals with testing, profiling, job evaluation. And these people in this branch of the
profession are getting to be increasingly important in our national business life.
They set up job standards; they say which employees have qualifications for
promotion; they decide who should be severed from employment. And, after
someone has been removed from a job, they may determine whether he or she
should #. disability pay which is something that can have a profound effect on
that individual's financial future.
To my mind, much of what is being done in this whole field is of dubious scien-
tific value. Often, workers are forced to conform to standards which a psychiatrist
or psychologist has set, but which aren't necessarily correct ones. This can be a
harmful, destructive process. -
A book recommended by Dr. Robitscher, in a Washington Star
article, dated. December 14, 1977, entitled “A Psychiatrist on the
Excesses in His Field,” on page A-1 and A-23, is by Qtto Freidrich,
Simon-Schuster, 1976, entitled “Going Crazy.” The Freidrich book,
in layman's terms, discusses the history of psychiatry. On page 357,
the following quotation sums up the Freidrich position:
All that any psychiatrist can really do is to listen to unhappy people and try
to help them deal with their difficulties, which means that even a wise psychiatrist
is not very different from a wise pries; or a wise parent or a wise friend. (See also
“The Making of a Psychiatrist,” by David Wiscott, M.D., Arbor House, reviewed,
New York Times, December 27, 1972, in an article entitled “Problem Šolvers Are
a Problem,” by Mr. Lask.) -
Congressman Fauntroy's ad hoc hearings of June 29, and July 1,
1976, ãemonstrated the misuse of psychiatric fitness for duty proce-
dures in retaliation against employees bringing discrimination com-
plaints or even appearing as a witness in such complaints. During his
4
ad hoc hearings, nondiscrimination complaint retaliation cases were
also brought to the attention of his office.
Correspondence from employee organization officials and other
statements demonstrate that psychiatric procedures result from what
appear to be personality conflicts between supervisors and employees.
he fact that fitness for duty examinations are used as the result
of #. conflicts, and for retaliation, means that the morale
of Federal employees is being underminded, the reputation of the Gov-
ernment damaged, and the purposes of the Congress frustrated.
Hon. GLADYs Noon Sr*.,
??".
BACKGROUND AND SUMMARY
THE HEARING .
During the course of the subcommittee hearing on February 28,
1978, testimony and statements were gathered on problems arising
from the application of statutes and regulations to the relationship
between employee and psychiatrist, as distinguished from the rela-
tionship between patient and psychiatrist. In addition, due process
issues were raised as well as questions relating to the lack of statutory
authority for certain psychiatric fitness for duty examinations.
Congressman Fauntroy, on the basis of his earlier ad hoc hearings
discussed allegations made by constituents and others as to the use
of psychiatric fitness for duty examinations as a means of retaliation
by the managers of Federal agencies against employees involved in
discrimination complaints against management. The hearing narrowed
its focus for the most part to issues raised by involuntary psychiatric
fitness for duty examinations because of the stigma to employees
resulting from such examinations.
In an involuntary psychiatric fitness for duty examination, the
psychiatrist is in the position of representing management as an
investigator. The results of his examination and his diagnosis are
made available to management for possible adverse action or dis-
ability retirement proceedings. On the other hand, the employee is
in the position of a defendant who has been made subject to allega-
tions of mental illness. His or her career is at stake, as well as his or
her hope for future employment.
. The employee first learns of allegations made against him when he
is directed to º. before a psychiatrist. He has the option of
º 8, º atrist for the E. of the examination. He
should do so, but in most cases, he does not because he has little
knowledge of psychiatry or psychiatrists, and in any case may be too
embarrassed to do so. (See, “The Psychotherapy Maze,” Ehrenberg
and Ehrenberg, Holt, Rhinehart, Winston, N.Y., 1977, for a discus-
sion of each of the 26 major approaches to therapy as a guide to
obtaining assistance. Both authors are psychologists.) An average
employee in these circumstances is in a state of shock. He may sense
that the psychiatrist has been briefed by management. In point of
fact this is required by regulations (FPM 831–1 S 10–105 (c)). How-
ever, the employee has not been fully briefed by management and
he is generally angry. The medical setting does not disguise the fact
that this is an adversary proceeding. * -
There was general agreement among professional and lay witnesses
as well as those who submitted statements that:
(1) involuntary psychiatric examinations are of little help to
precise diagnosis;
(2) a psychiatrist should not be put in the position of making
a judgment as to the employee's ability to perform his job; it



(5)
6
was agreed that the decision of how well an employee performs
his job should be an occupational and administrative decision,
not a medical one;
(3) a supervisor is in no position to make a judgment as to
the need of an employee to }. a psychiatric examination—he
is not qualified to do so; and
(4) the source of many psychiatric fitness for duty examina-
tions is personality conflicts between supervisors and employees.
Dr. John R. 8, º: with the Department
of State for 10 years, testified on behalf of the American Psychiatric
Association, a medical specialty society with a membership of 24,000
physician-psychiatrists practicing in the United States. Dr. McGrath,
at the time of the hearing, was president-elect of the Washington
Psychiatric Society. He described what could be considered the best
practice under the present regulations. Dr. McGrath stated that in
all psychiatric examinations, he first learns whether an employee
understands that he need not respond to questions if he or she does
not wish to do so; and that the only response recorded in such a situa-
tion should be the bare noting of nonresponse. He stated that he be-
lieved that the drawing of any conclusion as to mental health from
such a response would be unjustified and if such determinations were
made in a report, a question of the psychiatrists' competence should
be raised (see p. 37 .# Subcommittee on Compensation and Employee
Benefits hearings, serial No. 95–62).
He further stated that an employee must have it made clear to him
why he or she is being interviewed and that a record of the interview
is being made for submission to management. The subject employee
should not be encouraged to reveal anything on the basis of confiden-
§§ between patient and physician (see p. 38 of hearing, serial No.
95–62).
He also suggested that the option of second consultation should be
available including a consultation with an employee selected psychia-
trist (see p. 40, hearing, serial No. 95-62).
Dr. McGrath defended the practice of a psychiatrist making a
diagnosis on the basis of one or two visits because a diagnosis may be
made within a short time frame as distinguished from the number of
interviews required in recommending a course of treatment. A course
: treatment is, in his view, a separate question taking a longer period
of time.
He added that one or two interviews of an hour each is supplemented
in a helpful way by written materials from supervisors and/or manage-
ment. He felt that the position of an employee in such interviews is
analagous to that of a d; compelled to submit to such an interview
by parents. He emphasized that the only question a pychiatriº C80.
answer is whether or not an interviewee is mentally ill.
Mr. David Soeken, Chief Psychiatric Social Worker, for the Public
Health Service, HEW, testified as to his experience relative to the
team approach of combining the skills of a psychiatrist, a psychologist,
and a social worker in carrying out psychiatric fitness for duty exami-
nations for the Public Health Service. Under 5 U.S.C. 7901, OMB
Circular A–72, June 18, 1965, the Public Health Service Division of
Federal Employee Health is available for psychiatric fitness for duty
examinations where the alleged illness may ; work related, (see pp.
43–48 of hearing, serial No. 95–62).
7
... Mr. Soeken's view and that of the Public Health Service is that it
is necessary to reduce the anxiety level of the employee, especially an
employee who has been directed to appear for a psychiatric
examination.
He described the typical employee reporting for a psychiatric exami-
nation at the #jº. Service as follows:
A person arriving for such appointment is usually in a high state of anxiety.
The anxiety might be compared to the kind of one must feel after a relative has
been in a serious automobile accident and you don’t know whether he or she is
going to live or die.
The evaluation system at the Public Health Service runs for a
period of weeks to counteract this condition and lessen stress. Examina-
tions conducted under patient stress can result in a diagnosis of
“paranoia schizophrenia.” . * #
The psychiatrist member of the team confines his effort to finding
out whether mental illness is present, while the psychologist gives
tests in an attempt to arrive at underlying causes of behavior, and the
psychiatric social worker analyzes the work and living environment
of the employee.
It is the belief of the Public Health Service that care and treatment
are part of the final diagnosis in that the giving of outside assistance
determines whether a patient can use such assistance and recover.
The possibility of recovery is a key to whether an employee is disabled
or not. It is the permanency of #. problem that is the key question
in the diagnosis. It is the feeling of the subcommittee that this type of
examination and assistance is very much in line with an agency's
responsibility under 5 U.S.C. 7901, to assist employees (Federal
º: preventive health services). Mr. Soeken testified that based
on his experience most examinations come about because of personality
clashes between employees and supervisors, resulting in “acting out
behavior.” In the typical case incidents arise after a period of passive
resistance, leading to a confrontation, followed by a directive that the
employee take a psychiatric fitness for duty examination.
en a recommendation is received for a psychiatric examina-
tion, the Public Health Service screens the application for those for
whom a medical evaluation would be helpful. In addition to a thorough
profile of the employee's personal and work life, the Service requires
a statement to the effect that the employee has been informed of the
scope and significance of the examination and that he or she has given
his consent to it.
It appears to the subcommittee that the team ºp. not only'
combines diagnosis and care, it reduces the margin of error and more
easily arrives at a conclusion as a team of the permanency of the prob-
lem. It is the permanency of the problem that is the key factor that
distinguishes between a case of the person who is working out a per-
sonal problem and a case of mental illness.
Several communications were entered into the hearing record on the
efficacy of psychiatric examinations under regulations. Dr. Peter
Breggin, a psychiatrist with the Center for the Study of Psychiatry,
Inc. of Was n, D.C., has had patients who were subjected to the
fitness for duty process, as well as present patients whose complaints
as to the process are the same.
In his view, these procedures of requiring psychiatric fitness for
duty examinations have been used to “cover up conflicts on the job.”
He stated that it is his belief that individuals should be judged on
34–292–78–2
8
actual failure on the job without recourse to a psychiatric examination
because such an examination subjects the employee to an unfair and
highly prejudicial encounter with an individual to whom he is sup-
º to “tell all” about himself when in reality the information is
oing to be used against him. (See p. 56, hearing, serial No. 95-62,
etter from Dr. Breggin, Center for the Study of Psychiatry, Inc.,
January 27, 1977 to Wanda Diggs, congressional assistant to Con-
gressman Fauntroy.)
In a statement submitted originally to Congressman Fauntroy
dated June 29, 1976, Dr. Breggin set out seven objections to the
examinations procedures. They are as follows:
(1) Fitness for duty examinations translate personal conflicts
into medical problems, when the facts of job performance are the
only relevant facts.
(2) The presence of disease is usually irrelevant to job per-
formance unless the safety or health of others is involved as in
the case of an airline pilot or a food handler.
(3) The combination of psychiatric examination with a dis-
ciplinary proceeding forces an individual in conflict with manage-
ment to submit his personality to the scrutiny of an expert in
order to obtain material to use against him.
(4) The use of a mental health expert places such a person in
the position of determining whether an employee is cooperative
under mystique of helping while in fact working for management
in an adversary role.
(5) Failure on the job should be established as a fact before
medical examinations are resorted to;
(6) It is not helpful to treat the observation of behavioral pat-
terns as scientific when the same observations can be made by
supervisors on matters such as absenteeism and bad temper.
(7) It is unfair for regulations to require that agencies or em-
ployees obtain the assistance of a board-certified psychiatrist
since the Washington, D.C., psychiatric society is made up of
only one-half certified members.,
(See pp. 56–60, hearings, serial No. 95–62.) J.
Dr. Thomas Szasz, professor of psychiatry, College of Medicine,
Department of Psychiatry, State University of New York, supported
Dr. Breggin's position that diagnoses are being made on the . of
behavioral observations which are not scientific, thus negating any
scientific value in these examinations. (See also “The Right to
Health,” 57 Geo. L.J., 734 (1969).) . e
Dr. Szasz' position has been paraphrased, in the Washington Star
editorial of August 26, 1978, A-8, entitled “Psychiatry and Human
Rights,” as being that practically everything that is called insanity is
merely marching to a different drummer. In the same editorial, it is
noted that J. K. Wing, the British psychiatrist and a student of
Soviet psychiatry, points out in his book “Reasoning About Madness,”
that in the §. É. “the main criterion of psychosis is maladaption.”
The same view is taken of Soviet º in an article entitled
“Diagnosing Soviet Dissidents,” by Walter Reft, M.D., Yale Uni-
versity, Washington School of Psychiatry, Harpers, August, 1978,
page 31. It is the fear of the subcommittee that since a large number
of allegations of mental illness come from supervisors in situations
9
involving personal disputes and/or maladjustment in Federal agencies,
the Soviet experience may be relevant to the present application of
fitness for duty regulations.
Mr. Chris Hansen, attorney for the Mental Health Law Project and
Director of the Mental Patients' Rights Project of the New York
Civil Liberties Union, by letter dated February 16, 1978, set out the
views of his organization on psychiatric fitness for duty examinations
for Federal employees. Mr. Hansen has represented public employees
in cases involving psychiatric testing.
His views are that:
(1) No person may be deprived of government employment
because of factors unconnected with the responsibilities of that
sition (Mindel v. United States Civil Service Commission 312 F.
Supp. 485 N.D. California, 1970). Mental illness, in itself, may be
irrelevant to a person's fitness for employment in that 29 U.S.C.
791 and 794 explicitly protect persons against discrimination in
employment based on mental illness unrelated to job performance.
(2) If it were conceded that mental illness is per se relevant to
job performance there is substantial authority for the proposition
that reliance upon psychiatric judgments in a judicial or quasi-
judicial proceeding may be a violation of due process in that such
judgments are not reliable as being scientifically precise. (O'Con-
nor v. Donaldson 45 L. Ed. 2d 396, 412, 1975, Burger, C.J. con-
curring; and Smith v. Schlesinger 513 F2d 462 (D.C. Cir. 1975)
Bazelon, C.J. Chief Justice Burger cited with approval a Law
Review article in his concurring opinion in O'Connor v. Donaldson,
entitled “Psychiatry and the Presumption of Expertise: Flipping
Coins in the Courtroom,” 62 California Law Review, 693, 1974.
The article's importance comes from its citing of data and tests
showing serious difference in diagnosis by psychiatrists examining
the same patient during test procedures at mental hospitals. It is
the view of the article that testimony should have no better stand-
ing than lie detector testimony. Thus, the article raises a due
process question on fitness for duty examinations which rely on
sychiatric testimony as being scientifically precise when in other
É. or quasi-legal situations such evidence is not per se accept-
able as absolute fact or even scientifically acceptable throughout
the entire psychiatric community.
(3) He suggests as a minimum standard of due process that the
Federal Government adopt the position of Stewart v. Pearce, 484
F2d, 1031 (9th Cir., 1973); Board of Education v. Roth, 408 U.S.
564, 1972, that a due process hearing with a list of allegations, a
notice of hearing, representation, and the right to present testi-
mony, be given to Federal employees before, an employee is
directed to appear before a psychiatrist for examination.
(4) Since information gathered in a fitness for duty proceed-
ing could be used in a separated commitment-proceeding, that
an employee would be entitled to assert the fifth amendment and
refuse to respond during a psychiatric examination. Lessard v.
Schmidt 349 º Supp. 1078 (ED Wisc., 1972); Ennis & Emery,
“The Rights of Mental Patients,” Avon Books, 1978.
In short, Mr. Hansen believes that the issue is job performance and
that if an employee has difficulties on the job, then a factual finding
10
of performance should be made first and then in mitigation, a finding
on psychiatric condition. (See pp. 84–87, hearing, serial No. 95-62.)
In reference to Mr. Hansen's comments on 29 U.S.C. 791 and 794
(sections relating to discrimination against the handicapped in employ-
ment), it is interesting to note the General Accounting Office report
B–118638, “Disability Provisions of Federal and District of Columbia
Employee Retirement Systems Need Reform” on page four, criticizes
the § Civil Service Commission for not encouraging job reassign-
º: in disability retirement cases, as required by 5 CFR 831.1203
c) 2.
This criticism was made by the General Accounting Office as early
as July of 1976. What is more, the Civil Service Commission was criti-
cized for not adequately enforcing its own instructions that agencies
submit information on disability retirement applications as to agency
efforts to reassign employees to a more suitable position. In a General
Accounting Office sample taken for the November 19, 1976, report, 62
percent of the applications did not contain such information.
The Honorable Walter Fauntroy, Delegate from the District of
Columbia, had held ad hoc hearings on fitness for duty examinations
on behalf of the Washington Metropolitan Congressional Caucus on
June 29, and July 1, 1976. These . were held in response to
complaints from constituents that fitness for duty examinations were
scheduled in retaliation for individuals, making or supporting equal
employment opportunity complaints within channels against super-
visors. As the result of attention given these ad hoc hearings in the
media, Mr. Fauntroy's office received additional complaints from Fed-
eral employees stationed across the country. º
Mr. Fauntroy brought to the subcommittee's attention the impact
of the Comptroller General's unpublished opinion letter B-155489,
dated December 19, 1964, which letter supported the issuance of
FPM, chapter 339. The specific point of the letter was the affirmation
of the right of the Civil Service 8. to authorize the spending
of Federal funds for medical examinations in connection with fitness
for duty procedures. The letter assumed the authority of the Commis-
sion to connect these examinations with disciplinary proceedings under
5, U.S.C. 7501, and 7512. The letter supported the propriety of sched-
uling a fitness for duty employee examination preliminary to an agency
requesting disability retirement under 5 U.S.C. 8337 as an expense in
the interest of the Government.
This opinion letter in support of the regulation FPM 339, changed
the nature of the Preventive Health Program under Executive Order
9830, from the date of its issuance, February 25, 1947. (See p. 19, hear-
ing, serial No. 95–62.)
The regulation, FPM 339, in effect included for the first time the
uestion of mental capacity among those which the Preventive Health
ogram had previously covered such as tuberculosis, glaucoma, sickle
cell anemia; and similar conditions. Agencies had been empowered to
schedule physical examinations to protect employees' health and effi:
ciency and to assist disabled employees including veterans to find
F. which they could #; efficiently. Mental capacity has
een introduced through FPM 339 in conjunction with reference to
disciplinary procedures. (See p. 19 of hearing, No. 95–62.) :
Testimony at Congressman Fauntro º; hoc hearings raised the
following fundamental objections to FPM 339 procedures:
II
(1) Federal employees were instructed to submit to psychiatric
fitness for duty examinations or be “fired” for disobeying. a
direct order; * •
(2) That some Federal employees who had been ordered to
take these examinations had spotless sº records until
receipt of instructions to submit to psychiatric fitness for duty
examinations;
(3) The fitness for duty examinations translated personal
problems with supervisors into medical problems, ju 5. y
medical i. on the basis of whether the examiner thought
the employee could perform his job; * *
. (4), Congressman auntroy's office learned through these hear-
ings that physical and psychiatric examinations were used during
reductions in force and reorganization to force older employees to
retire through agency-filed disability retirement procedure; and
(5) That fitness for duty procedures are arbitrary and capri-
cious in that employees are not aware of the basis on which
management makes determinations that an employee must take
8, º: fitness for duty examination. (See p. 18, hearing,
serial No. 95–62.) * -
Congressman Fauntroy's conclusion as the result of his hearings is
that a psychiatric fitness for duty examination cannot answer the
question as to whether a specific employee can any longer perform
his job which is an administrative question, not a psychiatric one.
The Director of the Bureau of Retirement, Insurance, and Occupa-
tional Health of the U.S. Civil Service Commission, Mr. Thomas
Tinsley, accompanied by Dr. Raymond Eck, Medical Director of the
Bureau, testified on behalf of the Commission. Mr. Tinsley admitted
that the legal authority for conducting fitness for duty examinations
under FPM, chapter 339, is “highly questionable” and that the only
specific authority contained in the law to conduct physical or psy-
chiatric examinations is contained in the retirement law, 5 §§§
8337. (See p. 24, hearing, serial No. 95–62.) These examinations
allegedly authorized by FPM, chapter 339, create difficult problems
for the Bureau, in that they have no way of supervising them. The
Bureau is, in fact, for the most part unware of them. In the case of
the agency-filed disability retirement application filed under , the
authority of 5 U.S.C. 8337, the Bureau ...; will, in the future,
‘hold the agency to the same standard of proof as it does in the case
of an adverse action, according to its own testimony. (See pp. 24–25
of hearing, serial No. 95–62.) , , , , . * >
The problem as he sees it is one of lack of central authority for the
purpose of oversight, for in the case of FPM 339 procedures, the sole
role of the Civil Service Commission is an advisory one. It has no
direct authority over these examinations and the Federal agencies
believe that they have independent authority to carry out these
examinations under Executive Order 9830; further, the subcommittee
staff has learned that the Commission has no way of being informed
as to when and how these examinations are carried out. This sis
important because it is estimated that well over 90 percent of the
examinations fall within this category. (See report of Comptroller
General of the United States, “Extent of Use and Application of
Fitness-for-Duty Examinations by Federal Agencies,” p. 14, “only 1
.." sº cases involved agency-filed disability retirements,” see
©XIllolt, U.


12
Mr. Tinsley commented on proposed revisions of FPM chapter 339
º which were not ready for publication at the time of the
earing (February 28, 1978). They have not been published at the
writing of the report. These revisions require an agency which seeks
to separate an employee for poor performance resulting from a
physical or mental condition to take such steps as:
(1) a preliminary agency determination of disability;
(2) the establishment of a prima facie case of poor performance
sufficient to warrant separation for cause;
(3) the conducting of counseling sessions between the agency
and the employee to discuss the problem; and
(4) issuing the employee a written notice to report for
examination.
Mr. Tinsley agreed that legislation would be helpful on clarifying
the matter of authority and he, along with Dr. Eck, agreed that no
employee should be forced to take a psychiatric fitness for duty
examination. --
Staff members of the Subcommittees on Investigations and Com-
pensation and Employee Benefits testified on the question of lack of
statutory authorization for FPM 339 procedures, citing the only
statutory authority for fitness for duty examinations as 5 U.S.C. 3301
for entry into service procedures and those set out for the disability
retirement of employees, 5 U.S.C. 8337. *
The subcommittee staff members, Mr. Thomas R. Kennedy, staff
director of the Subcommittee on Investigations and Mr. David Gusky,
staff assistant of the Subcommittee on Compensation and Employee
Benefits, testified on the material gathered by the subcommittees from
November 1977 through February 1978.
The testimony pointed out the doubt recently raised by the courts,
including the Supreme Court of the United States, as to whether
psychiatric diagnosis outside of the patient-doctor relationship was
sufficiently certain as to scientific exactness to give psychiatric
testimony the standing usually accorded expert testimony in legal
or quasi-legal proceedings. In 62 California Law Review, pages
693–752, an article entitled, “Psychiatry and the Presumaption of
Expertise: Flipping Coins in the Courtroom,” challenges the exactness
of psychiatric diagnosis and the reliance previously placed on such
diagnosis as expert testimony. º
hief Justice Burger, in a concurring opinion in the case of O'Connor
v. Donaldson 422 U.S. 563 L. Ed. 2d 396 95 S. Ct. 2486, in page 412
of the Law Edition Second, cites with approval the University of
California Law Review article and says:
There can be little responsible debate regarding uncertainty of diagnosis in this
field and the tentativeness of professional judgment. (Greenwood v. United States
350 U.S. 375 100 L. Ed. 412 76 S. Ct., 410; see also Ennis & Litwack, “Psychiatry
and the Presumption of Expertise: Flipping Coins in the Courtroom, 62, California
Law Review, 693, 697–719, 1974). A footnote five to Burger opinion states the
following: “indeed there is considérable debate concerning the threshold questions
of what constitutes, ‘mental disease' and ‘treatment’.” See Szasz, “The Right to
#eaſº, Geº. f. i. 734, logo.
The coauthors of the California Law Review article, Mr. Bruce
Ennis and Mr. Thomas Litwack, collected studies as to the reliability
of psychiatric diagnosis, and applied their findings to the performance
of psychiatrists in legal proceedings. Mr. Ennis is an attorney and
Mr. Litwack is an assistant professor of psychology, John Jay College

13
of Criminal Justice, the City University of New York. They found
that such evidence is less reliable than lie detector evidence which is
barred in most jurisdictions.
In one experiment cited by the authors, 27 experienced psychiatrists,
all members of a hospital faculty, used a standardized set of 565
statements to diagnose a patient presented to them in a half-hour
film interview.
The psychiatrists were unable to agree as to a patient's diagnosis,
prognosis, psychodynamics, the cause of her problem, the feelings
she was consciously experiencing, or the feelings that were latent.
The article noting massive disagreement, concluded that:
Art far outweighs science when experts in the field of psychiatry try to say
what they have discovered in another person. Practitioners of the art disagree
with each other more than is commonly recognized. Psychiatrists seem to find
sufficient strength and itself confidence in consensual validation deriving from what
they assume to be and view as shared expert opinion. The findings here cate-
gorically contradict such belief.
The article which is on file with the Subcommittee on Investigations,
discussed similar experiments conducted by having psychiatrists
diagnose patients in controlled settings. For example, in 1959 a
researcher obtained the cooperation of two skilled psychiatrists in
diagnosing 20 hospital patients. Both psychiatrists found six of the
patients to be depressed, but not, the same six. In one study, 45
º: psychiatrists diagnosed a patient after having reviewed
a film interview. Seventeen of the psychiatrists found the patient to
be psychotic and the other 28 believed she was not. In addition, those
who found a psychotic condition differed among themselves as to
symptoms and the seriousness of the symptoms. -
In a mental hospital where patients were randomly assigned to each
of three wards, the percentage of patients diagnosed as neurotic varied
from 30 to 45 percent; those diagnosed as having a character disorder
varied from 12 to 22 percent; and those diagnosed as schizophrenic
varied from 23 to 36 percent. Moreover, in one ward where three
different psychiatrists had been assigned, the diagnoses of character
disorder varied from 15 to 56 percent, even though there was no reason
to believe that there were differences in patient populations during the
tenure of each psychiatrist.
In response to a question from Congresswoman Spellman, recom-
mendations were made by staff as to the confidentiality of records re-
lating to the psychiatric examinations of employee, #. staff recom-
mended in the case of an employee who has been found fit for duty,
that all records relating to the procedure be expunged. In the case
of an º who has been found unfit for duty, a recommendation
was made that all such records be kept at a central record center
subject to Civil Service Commission jurisdiction with access restricted
on a need to know basis. Mr. Tinsley and Dr. Eck of the Commission
pointed out that files are now kept in a variety of ways because of the
multiplication of records. At the present time some medical files are
kept in a separate portion of the personnel folder with limited, access
and some files are kept in medical units. Both types of filings are main-
tained at the ... level, along with #. maintained at the
Federal Records Center in St. Louis, Mo. The staff investigation at
the Northeastern Program Service Center, Social Security Admin-
istration, Flushing, §: had discovered the same situation described
by the Commission witnesses. Employees at the facility were very
14
concerned about the keeping of their records on this issue and they
had the feeling that this was part of the stigma that attached to persons
who were required to take psychiatric fitness for duty examinations.
SUMMARY
The basic question raised during testimony was concerned with
“due process” for Federal employees—Whether or not sufficient pro-
tections are provided for a healthy Federal employee who has been
ordered to appear before a psychiatrist for a fitness for duty examina-
tion? What can such a person do?
He or she is free to retain a psychiatrist of his or her own choice, as
long as the psychiatrist is board-certified for the purpose of the ex-
amination. He or she may refuse to take such an examination in the
case of FPM, chapter 339 examinations, based on In re King, U.S.
Civil Service Commission, July, 1977. Up to now the employee may
not refuse such an examination under the disability retirement statute
(5 U.S.C. 8337). The FPM, chapter 339 refusal may very well be at
the peril of the employee since the regulation, FPM 339, 1-3 (c) sub. 1
FPM §. 752–1 still stands as written. (See May v. Ünited
States Civil Service Commission, 230 F. supp. 659, 1963, for disciplinary
measures for refusal.)
* The essential lack of due process occurs in the following ways:
(1) An employee is ordered by a management panel (FPM
supp. 831-1, subchapter 10–10 (a) 5–c to appear for a psychiatric
examination without an opportunity to respond to the allegations
brought to and by the panel. The cases of Stewart v. Pearce, 484
F.2d 10319th Circuit, 1973, and Board of Regents v. Roth, 3 L. Ed
2d 548, 1972, citing Wisconsin. v. Constantineau, 400 U.S. 433
437, gi's Cº.'s 7,271. Ed.2d 515, 1971, if applied to the Federal
Government's psychiatric fitness for duty examinations may re-
sult in a finding of unconstitutionality. The courts held in these
cases that “due process” is necessary in a case where an individual
might be stigmatized because of the nature of psychiatric exam-
inătions. The employee has an interest sufficiently important to
require “due process” in the sense of the requirements of notice,
representation, and the right to present evidence. The Stewart
and Roth cases involved teachers in circumstances similar to those
of Federal employees. e *
(2) The employee is judged on the written record in the case of
an agency-filed disability retirement application, with no chance
to make an apperanace, present live witnesses, or cross examine.
Up through the point where the Commission decides against
im or for him the employee is not afforded a hearing. He has
not received fºdue process”. - e
'', (3) The finality, clause, 5 U.S.C. 8347(c), , provides ; that
the Commission's decisions are final and conclusive and not
subject to review. The section reads in pertinent P. as follows:
“(c) the Commission shall determine questions of disability and
dependence arising under this subchapter. The decisions of the
Commission concerning these matters are final and conclusive
and not subject to review.” *
15
However, this section cannot eliminate the constitutional right of
appeal of the courts in the case of official “arbitrary and capricious
conduct.” Therefore, an employee may take his case to the court of
claims on a constitutional basis. The statute, however, comes into
play as tº: an almost impossible heavy burden of proof under
decisions of the court of claims.
In light of 5 U.S.C. 8347(c), as interpreted by the court of claims
in Gaines v. United States, 158 Ct. Cl. 502, cert. denied, 371 U.S. 936,
1962, the employee must show one of the three following conditions:
there has been a substantial departure from important procedual
rights, a misconstruction of governing legislation, and an error going
to the heart of the administrative determinations.
Since the employee has almost no procedural rights and the govern-
ing legislation grants management maximum discretion, the employee
must rely on “an error going to the heart of the administrative
determination.”
Thus, we come to the devastating effect of 5 U.S.C. 8347 (c) as
applied by two key court of claims decisions issued on June 14, 1968,
on two agency-filed psychiatric disability retirement cases. These
cases were McGlasson v. United States, 397 F.2d 303, 1968, and Scrog-
gins v. United States, 397 F.2d 295, 1968.
In the McGlasson case, the Civil Service Commission was sustained
on appeal, in which the record submitted by the Commission had no
evidence supporting a finding of mental illness. The concurring judge
stated that apparently the Commission relied on an off the record psy-
chiatric diagnosis, by Ms. McGlasson's psychiatrist, who turned over
the report to a personal friend of that psychiatrist who was employed
i.the Government which was, in the judge's opinion, a breach of
ethics.
In the Scroggins case, a hospital intern who interceded in an alter-
cation between two other persons was subjected to agency-filed
disability retirement application based on allegations of mental
illness. Ms. Scroggins j several diagnoses from private psy-
chiatrists as to her good mental health. The agency and the Com-
mission relied on a negative telephone interview from an agency
psychiatrist who concluded on the basis of Ms. Scroggins' failure to
appear, that her nonappearance was typical of persons suffering from
paranoia. After Ms. Scroggins submitted, additional psychiatric
information, she consented to examination by a Civil Service psy-
chiatrist who found her to be mentally ill. The majority held that
since there was information to support the Commission, it must be
upheld under the severe terms of 5. U.S.C. 8347 (c).
In a 1975 case, McFarland v. United States, 517 F.2d 938, the court of
claims restated the position taken in the McGlasson and Scroggins
cases, that the language in 5 U.S.C. 8347 (c) was “a special and unusual
restriction on judicial examination” and under it courts are not free to
review Commission retirement decisions as they would “if the finality
clause were not there.” In the McFarland case, a psychiatrist retained
by the Government had reversed an earlier finding of mental illness
on the basis of a second interview which led him to believe that he
made a mistake. He stated that he would never give his opinion as a
psychiatrist again on the basis of one visit. The court upheld the
Commission on the basis of a second opinion based on two incidents in
16
McFarland's career over a period of years during which time she had
cried on one occasion when reprimanded and on another she had
slammed a ledger on a desk.
Judge Bazelon in the majority opinion of Smith v. Schlesinger,
513 F.2d 462, 1975, p. 463, and at page 475, footnote 45 made these
comments as to the relationship between “due process” psychiatric
evidence and the example of the Soviet system:
“The danger in the Soviet system is its lack of an adequate mechanism to un-
cover and counter the professional and personal biases of expert witnesses. Our
experience in this country strongly suggests that a forensic psychiatrist's testi-
mony and recommendations may be influenced both by his professional orienta-
tion . . . . and by his personal and political preferences . . .
We may not ignore the possibility of bias in favor of the government by state-
employed psychiatrists, whether they be Americans or Russians”.
There is little or no process, let alone “due process” in the sensitive
matter of psychiatric fitness for duty examinations. There is an
abundance of discretion for Federal agencies in FPM 339 cases and a
limited appeal to the discretion of the Civil Service Commission in the
matter of statutory disability retirement procedures.
The total lack of “due process” may best be understood by a com-
p." to the more favorable position of Federal employees appearing
efore Security or Loyalty Review Boards during the height of the
so-called “McCarthy” period. Employees accused of disloyalty had
notice of the hearing, notice of allegations and they could present live
testimony by friendly witnesses. (See, “McCarthy and His Enemies,”
Buckley-Bozell, Regenby, 1954, pp. 24.8—249.) The due process
objection to these hearings was the fact that an employee did not have
an opportunity to cross examine his accuser, nor was he allowed to know
who his accuser was.
The reference to loyalty hearings is relevant to the case of psychia-
tric fitness for duty hearings because of the stigma which *::: to
employees who are subjected to such hearings, a stigma recognized by
the courts. (Stewart v. Pearce, 484 F.2d, 1031, 1973, 9th Circuit.) It
was of the element of stigma attaching to persons accused of dis-
loyalty that the courts, on a constitutional rather than a statutory or
regulatory basis, extended protection to the employees of that era.
The issue is the same. .
There is less protection in the fitness for duty case based on the idea
that this process is a factfinding procedure. But psychiatry does not
fit into an “either or” context. Broken minds and broken ankles call
for different kinds of diagnoses. Psychiatrists may recognize the
i.e. however, the Federal Government through its regulations
as not. * -
In summary, the employee may be directed to take a psychiatric
fitness for duty examination under either FPM 339, agency exami-
nation, or the 5 U.S.C. 8337, disability retirement procedures, with-
out notice from a panel or at the discretion of management with no
notice, or hearing, based on allegations by a supervisor that a psychi-
atric examination is necessary. While the employee may obtain the
service of his own psychiatrist for an examination which will be paid
for by the Government, most have no idea where to begin obtaining
the services of a psychiatrist." Once the examination has taken place,
* By one count, there are some 180 different “schools” or systems of ºś The
American Psychiatric Association lists 80 schools within ps º alone. “Psychot erapy:

Finding a Shrink to Fit,” New York Times, p. C-1, Dec. Also, see “The Psycho-
therapy Maze,” Ehrenberg and Ehrenberg, Hoit Rhinehart, winston, New York, 1977).
17
the diagnosis is turned over to management. The employee may not
see the diagnosis because of the sensitive nature of psychiatric exami-
nations. The results of such examinations would depress even a normal
ºn. (FPM supplement 831–1, subchapter 10(a), 7(b) footnote
One.
The regulation reads in pertinent part: “Rather than exercise
discretion, an agency may in all cases give the medical evidence only to
a licensed physician.”
Thus the basis of the allegation of mental illness is not available
to the employee or his or her union or legal representative; but only
to a physician. The information in the diagnosis is available then
to representatives of the employee on a screened basis but is available
directly to management. The employee is not entitled to a hearing
as a matter of right, until the Civil Service Commission has made its
decision on an agency-filed disability retirement request.
FPM chapter 339 proceedings do not result in any direct decision
which can be appealed from. #. agency may determine to file an
adverse action or an agency disability retirement application, which
are separate procedures. Most often the agency makes no decision
but instead advises the employee of the possibility of an adverse
action, an agency-filed disability retirement application, or the em-
ployee's filing º a disability retirement request. The Commission
admitted in its February 17, 1978, letter to Chairman Nix, which
is on file with the subcommittee, that this procedure sometimes
leads to the feeling by employees that they are being pressured into
retirement. The chapter 339 procedures account for over 90 percent
of the fitness for duty examinations.
The first step on the long road back to the due process for individual
employees is the repeal of the finality clause in 5 U.S.C. 8347 (c). It is
fundamental that an employee on a matter as sensitive to his reputa-
tion, future, and capacity to earn an income, as is a psychiatric ex-
amination, needs access to the courts. The barring of involuntary
psychiatric examinations by statute is also important, since it is
admitted by all concerned that such examinations do little good and
may do much harm. But the day in and day out protection for the
system, in the end, depends on the court system and the rule of law.
Former Supreme Court Justice Jackson pointed out that:
Due process not only protects the individual, it protects the Government, itself,
against those blunders which leave lasting scars on a system of justice-blunders
; are likely to occur when reason need not be given and when the reasonable-
ness and indeed legality of judgment need not be subjected to any appraisal
other than one's own.
The fitness for duty examination process needs less discretion and
more common sense. Due process is fundamental good sense for both
employees and managers.
FINDINGS AND CONCLUSIONS
1. That involuntary psychiatric fitness for duty examinations are
ordered by Federal management to test the mental capacity of
Federal employees in order to obtain information which j. support
an adverse action separation proceeding or for an ..ºf dis-
ability retirement of the subject employee.
18
2. That these examinations have been motivated by disciplinary
considerations rather than medical considerations, on a significant
number of occasions.
3. That the major source of legal and administrative difficulties
arising from the use of all fitness for duty procedures occur in the
submission of agency-filed disability retirement applications author-
ized under 5 U.S.C. 8337 and adverse action fitness }. duty examina-
tions under color of authority provided by the Federal Personnel
Manual, chapter 339.
4. That an involuntary psychiatric fitness for duty examination
places the examining psychiatrist, who is briefed by management
E. to the examination as required by the regulations, in a position of
eing an investigator and the employee in a position of being a
defendant who º lose his or her present and future prospects for
º as well as º. in the .
5. That 80 percent of a .. as to an employee's needs for a
psychiatric examination come
no medical expertise.
6. That the examining psychiatrist is obligated by regulation to make
a finding as to the subject employee's mental capacity to continue his
ºn, which is an administrative decision rather than a medical
€ClS1OIl.
7. That a finding by an examining psychiatrist of mental illness
based on an employee's refusal to respond to a psychiatrist during
involuntary examination would be indication of incompetence on the
part of the psychiatrist, according to a subcommittee witness repre-
senting the K. Psychiatric Association.
8. That is it is unlikely that a sufficiently certain psychiatric
diagnosis of mental illness can be made on the basis of one or two
interviews with an employee under great personal stress, in an ad-
vº setting without commitment to therapy.
9. That the Supreme Court of the United States and lesser cºurts
have significantly diminished reliance on psychiatric testimony in
uasi-legal or legal proceedings in that experience and experimenta-
tion have shown that psychiatrists may seriously differ as to diagnosis
in identical or similar factual situations. (O'Connor v. Donaldson, 422
U.S. 563, 1975, concurring opinion, C.J. Burger, 585, 62 California
Law Review, 693, 1974, “Psychiatry and the #ºn of Exper-
tise: Flipping Coins in the Courtroom.”)
10. That the Civil Service Commission admits that the separation
of an employee for the refusal to appear before a psychiatrist for an
involuntary psychiatric interview in the case of an FPM 339 adverse
action fitness for duty examination would be improper, while main-
taining that a separation of an em º in an agency-filed disabilit
retirement proceeding is proper. #. the Matter of King, before U.S.
Civil Service Commission, docket No. 5, July 21, 1977.
11. That well over 90 percent of all fitness for duty examinations
are FPM 339 adverse action proceedings as distinguished from stat-
utory disability retirement procedures, 5 U.S.C. 8337.
12. That FPM 339 proceedings are not subject to Civil Service
Commission control in that .# proceedings are conducted under
alleged direct agency authority granted by Executive Order 9083,
section 01.2 and that an employee has no appeal to the Commission
from such proceedings. -
rom immediate supervisors who have


19
13. That the Commission position as to FPM 339 proceedings is an
advisory one and the Commission does not have any certain knowl-
edge as to the quality of such proceedings.
14. That FPM chapter 339 proceedings do not result in the kind
of evidence that would support an adverse action proceeding against
an employee, nor do they result in sufficient evidence to support a
successful agency-filed disability retirement proceeding, thus, result-
ing in pressure on employees to voluntarily seek disability retirement.
15. That the only fitness for duty examinations authorized by
statute for employees as distinguished from applicants for employ-
ment, is the disability retirement statute, 5 U.S.C. 8337, and that
FPM chapter 339 fitness for duty examinations depend for color of
authority on Exective Order 9083, section 01.2, 12 Fed. Register 1259,
1947, as interpreted by a 1964, unpublished Comptroller General's
opinion, B–155489, upholding the spending of public funds for ex-
penses related to such examinations and which C.G. opinion intro-
duced the concept of mental capacity for the first time into the Federal
Employee Preventive Health Service program. (5 U.S.C. 7901.)
16. }. the present procedures permit the ordering of an employee
to take an involuntary psychiatric examination, after the meeting
of a management panel without; notice to subject employee of the
meeting of such a panel or notice of allegations made against the
. or an opportunity to be heard, to be represented, or to
challenge for lack of due process. (See Stewart v. Pearce, 484 F.2d 1931
9th Cir., 1973, Board of Education v. Roth, 408, U.S. 564, 1972.) The
key factor in such a situation is the court's recognition of the damage to
that employee's future employment prospects.
17. That the Comptroller General's report, B-118638, entitled
“Disability Provisions of Federal and District of Columbia Employee
Retirement Systems Need Reform,” dated July 19, 1978, page four,
demonstrates that the Civil Service Commission does not seek other
positions within the Government for employees involved in disability
retirement cases, nor does it in fact enforce its own regulation re-
quiring agencies to seek out positions which such employees may fill.
Since it is established that no person may be denied Government
employment because of ſactors unconnected with his position (Mindel
y } . Civil Service Commission, 312 F. Supp. 485 ND California,
1970), the mere presence of absence of mental illness, per se without
references to job performances may place the Commission in violation
of 29 U.S.C. 791 and 794 which protects the handicapped against job
discrimination. -
18. That an employee who is the subject of involuntary psychiatric
examination procedures under FPM chapter 339, or under 5 U.S.C.
8333 does not have an opportunity to cross examine, nor the right
to examine the results of his or her own psychiatric examination report
except through an indirect explanation made by a doctor in his or her
employ. Management representatives base their case on such infor-
mation and the employee is only accorded the right to submit written
statements on his behalf to the Commission. -
... 19. That 5 U.S.C. 8347 (c) reads in part: “(c) the Commission shall
determine questions of disability and dependence arising under this
subchapter. The decisions of the Commission concerning these matters
are final and conclusive and not subject to review * * *.” This pro-
vision limits the constitutional right to appeal to the court of claims
20
on the basis of arbitrary and capricious conduct, and is so narrow that
8.Il º: was not able to sustain an appeal in a case where there
was an absence of any evidence in the record as to mental illness.
(See McGlasson v. United States, 397 F.2d 303, 1968, Arnett v. Ken-
nedy, 416 U.S. 134, 1974).
20. That confidential information relating to psychiatric examina-
tions kept in personnel folders in a separate compartment at the in-
stallation lº or in medical units are the subject of gossip, or are
feared to be so, by the employees involved in psychiatric examina-
tions. That such filings are a part of the stigma effect feared and ex-
perienced by employees.
RECOMMENDATIONS
The subcommittee, as a result of its investigation and study, makes
the following recommendations:
1. That the Congress enact legislation pº the following
language contained in 5 U.S.C. 8347(c): “(c), the decisions of the
Commission concerning these matters are final and conclusive and
are not subject to review.”
2. That the Congress enact legislation, or regulations be promul-
gated by the Civil Service Commission or its successor agency, the
Qffice of Personnel Management, requiring an agency recommending
that an employee take a psychiatric examination, be P. to do
so only after notice to the employee and the granting of an opportunity
to the employee to be heard prior to scheduling a date for such an
examination.
3. That the Congress enact legislation, or regulations be promul-
gated by the Civil Service Commission or its successor agency, the
Office of Personnel Management, requiring that except under extraor-
dinary circumstances no finding of unfitness for duty for psychiatric
reasons be valid unless or until an employee has had a minimum of
two interviews with a qualified j.
4. That the Congress enact legislation, or regulations be promul-
§: º the Civil Service Commission or its successor agency, the
ffice of Personnel Management, requiring agencies to demonstrate
that an employee is not able to perform in his or her general occupa-
tional area because of physical or mental disorders, before an agency-
filed disability retirement application is accepted by the Civil Service
Commission.
5. That the Congress enact legislation, or regulations be promul-
gated by the Civil Service Commission or its successor agency, the
Office of Personnel Management, requiring that an agency demonstrate
that it has provided an opportunity to an employee, who is the subject
of an expected psychiatric fitness for duty examination, for an agency-
filed disability retirement application under 5 U.S.C. 8337, and of the
opportunity to receive treatment under the terms of 5 U.S.C. 7901
(Federal Employee Preventive Health Service Program), and that
the employee has had the opportunity to apply for compensation
under 5 U.S.C. 8102 (chapter 81, Compensation for Work #.
and that the agency conforms to 29 U.S.C. 791(b) and 29 U.S.C. 794
(Employment of Handicapped Individuals).
UNIVERSITY OF MICHIGAN wº
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21 3 9015 O7792.7872

6. That the Congress enact legislation, or regulations be promulgated
by the Civil Service Commission or its successor agency, the Office of
Personnel Management, which would require that in psychiatric
fitness for duty examinations where the employee is found fit for duty,
that the records pertaining thereto be expunged. In the case of an
employee who is found to be unfit for duty for psychiatric reasons,
that the employee be afforded the opportunity to file explanatory
material including any bearing on recovery at any time the file is in
existence. Further, that files be maintained by the Civil Service
Commission or its successor agency, the Office of Personnel Manage-
ment, at a central location with access on a need to know basis.
QUESTION UNDER ADVISEMENT FOR
FUTURE STUDY
The subcommittee will take under advisement the question of
whether or not all involuntary psychiatric examinations should be
barred by statute. In the case wº an adverse action finding may
lead to separation, evidence of psychiatric instability ought to be
allowed in evidence in mitigation. ź. the exceptional case where the
employee does not do so, even though his behavior would indicate
that such evidence is relevant, involuntary psychiatric examinations
might serve the interest of justice in protecting the employee's right
to disability retirement. The Federal {... might usefully act
as a de facto guardian in obtaining such an examination for disabilit
retirement purposes. The prior history of involuntary psychiatric
examinations and their doubtful usefulness in most cases would indi-
cate that the subcommittee should continue to examine such situations.

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