FEDweek

MSPB Simplifies Enforced Leave Appeals

On June 23, 2014, the Merit Systems Protection Board (MSPB) issued a precedential decision in Abbott v. U.S. Postal Service, 2014 MSPB 47.The MSPB drastically overturned its prior precedent on enforced leave cases, making it potentially easier for employees to challenge these actions at the MSPB.

Enforced leave is the situation where the employing agency involuntarily bars the employee from returning to work and instead mandates that the employee to expend his or her own accrued leave in order to remain in paid status.

In January 2012,Abbott was placed in enforced leave status after the agency denied her request to return to work at a light-duty assignment.Abbott appealed the enforced leave decision to the MSPB.The MSPB’s administrative judge dismissed the case for lack of jurisdiction, and Abbott then filed an appeal with the full Board.

The MSPB’s decision reflected a major shift in how it treats enforced leave cases for purposes of appeal.Because the employee’s own accrued leave is what keeps the employee in paid status, the MSPB has always treated enforced leave situations as legally analogous to a suspension.However, pre-Abbott, the MSPB’s cases more specifically treated enforced leave as constructive suspension cases rather than normal suspension cases.

Under the MSPB’s prior precedent for constructive adverse actions, employees then faced difficult jurisdictional hurdles at the very start of their case in order to prove that the MSPB had jurisdiction over the case—which the employees had to meet without the benefit of any discovery responses from the agency.In Abbott, the MSPB overruled this precedent, finding that this precedent had misinterpreted decisions from the MSPB’s chief reviewing court, the U.S. Court of Appeals for the Federal Circuit.

In its place, the MSPB held that enforced leave cases should be treated simply as normal suspension appeals, allowing these appeals to go forward, if for 15 days or more, without the hurdle of employees having to prove constructive adverse action jurisdiction on the case at the outset. Accordingly, the MSPB remanded Abbott’s appeal to the administrative judge for a decision for adjudication on the merits.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman& Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.