Federal Manager's Daily Report

The Merit Systems Protection Board recently split over

whether a Border Patrol agent had been constructively

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suspended in violation of the agent’s collective bargaining

agreement. The agent, who injured her foot while on duty,

received worker’s compensation benefits, including

continuation of pay.

When that ended, the agent applied for a limited duty

assignment within the agency, but was ultimately assigned

to an automation assistant position until her full return

to duty. An administrative law judge rejected her appeal.

The agent then filed an appeal with MSPB contending that

she had been constructively suspended while on duty as an

automation assistant.

The first MSPB member sought to uphold the administrative

law judge’s finding arguing that the Board may only determine

whether the agency acted arbitrarily or capriciously in

its treatment of a partially recovered employee. The second

MSPB member would have reversed the administrative judge’s

conclusion finding the record incomplete to make a

determination. Any appeal will be heard by the U.S. Court

of Appeals for the Federal Circuit. The full text of the

decision can be found at http://www.mspb.gov/decisions/2003hancock_da010365i1.html