Developments at the MSPB: 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.
In January 2012, Ms. Abbott was placed in enforced leave status after the agency denied her request to return to work at a light-duty assignment. Ms. Abbott appealed the enforced leave decision to the MSPB. The MSPB’s administrative judge dismissed the case for lack of jurisdiction, and Ms. Abbott then filed a Petition for Review with the full Board.
The MSPB’s decision reflected a major shift in how it treats enforced leave cases for purposes of appeal. 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. While the employee remains in paid status, he or she is deprived involuntarily of accrued leave in order to do so. 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 prior 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 the employee was placed on enforced leave 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 Ms. Abbott’s appeal to the administrative judge for a decision for adjudication on the merits.
If you are a current federal employee who has received a proposal for enforced leave or any other adverse action, and would like to discuss your rights, please contact the law firm of Passman & Kaplan, P.C. to request a consultation.