James M. Carlson, Jr. v. United States Customs Service

James Carlson appeals the Merit Systems Protection Board’s denial of his petition for review of a decision removing him from his position with the United States Customs Service. We affirm.

The sole question on appeal is whether the Federal Personnel Manual Supplement 752-1 required that Carlson be given a pretermination fitness-for-duty examination upon the facts in this case. Carlson was represented by counsel at the administrative level and failed to request the examination.

Carlson was charged with an act of wilful misconduct. Following a hearing on that charge, he was removed from his position. He did not offer evidence to show mental disability nor does he now dispute the fact that he failed to request an examination or to offer evidence of mental impairment at the hearing. He argues instead that his prior history coupled with the act complained of (an unprovoked assault upon a fellow worker) required that he be given a pretermination fitness-for-duty examination. He relies upon Federal Personnel Manual Supplement 752-1 and Decision No. SE752B70036 (January 20,1977) of the Merit Systems Protection Board. We reject the argument.

The notice of proposed removal charged that…