United States Merit Systems Protection Board

Case Report for October 22, 2010

These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.



Appellant:  James Brown

Agency:  United States Postal Service

Decision Number:  2010 MSPB 203

Docket Number:  AT-0752-09-0732-I-1

Issuance Date:  October 15, 2010

Appeal Type:  Adverse Action by Agency

Action Type:  Constructive Adverse Action

 - Constructive Suspension

       The appellant petitioned for review of an initial decision that dismissed his alleged constructive suspension appeal for lack of jurisdiction.  At issue was whether the agency constructively suspended the appellant from May 12, 2009, when the appellant reported to work but was sent home, until July 20, 2009, when he returned to full-time duty.  The agency contended that there were no duties within the appellant’s medical restrictions during this time.  The appellant contended that, contrary to the agency’s understanding, his medical restrictions did not arise from his pre-existing heart condition, but were the result of an aggravation to that condition caused by his brief stint working in the automation section.  He contended that the agency should have notified him of his option to file a workers’ compensation claim and seek continuation of pay or limited duty.  He alleged that the agency “actively deceived him into applying for light duty rather than for limited duty, and imposed immediate suspension on him in furtherance of that deception.”

Holdings:  The Board granted the appellant’s petition for review, vacated the initial decision, and remanded the appeal for further adjudication:

1.  It is well-settled that an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue.  The administrative judge provided no written notice of the appellant’s burden of proof on jurisdiction.  Nor did the agency’s pleadings include any statement of the jurisdictional standard for constructive suspension appeals.

2.  The Board has recognized that an agency’s misleading statement, upon which an employee relies to his detriment, may support a finding of a constructive suspension.  This is relevant given the appellant’s claim that he was deceived into applying for light duty instead of limited duty.

3.  Once an employee who was absent due to a medical condition makes a nonfrivolous allegation that he was able to work within certain restrictions, that he communicated his willingness to work, and that the agency prevented him from returning to work, the burden of production shifts to the agency to show that there was no work available within the employee’s restrictions.  If the agency meets its burden, the appellant must present sufficient rebuttal evidence to meet his overall burden of persuasion.

4.  On remand, the administrative judge shall provide the parties written notice of the appellant’s burden of proof on jurisdiction, provide the appellant an opportunity to present evidence and argument, and, if appropriate, conduct a supplemental hearing.

Appellant:  Sara F. Crazy Thunder-Collier

Agency:  Department of the Interior

Decision Number:  2010 MSPB 202

Docket Number:  DE-0752-07-0201-X-1

Issuance Date:  October 14, 2010

Appeal Type:  Adverse Action by Agency

Case Type:  Compliance Referral


       This case was before the Board on the administrative judge’s Recommendation finding that the agency was not in full compliance with a final order that reversed the appellant’s involuntary retirement and ordered the agency to retroactively restore her to duty with back pay and benefits. 

Holdings:  The Board found that the agency is now in compliance with is obligations and dismissed the petition for enforcement as moot.


Non-precedential Decisions

The U.S. Court of Appeals for the Federal Circuit issued non-precedential decisions in the following cases:

Payton v. Department of Homeland Security, No. 2010-3118 (Oct. 7, 2010) (MSPB Docket No. AT-0353-09-0770-I-1) (affirming the Board’s decision, 113 M.S.P.R. 463 (2010), which dismissed this restoration appeal for lack of jurisdiction)

Keira v. Merit Systems Protection Board, No. 2010-3082 (Oct. 7, 2010) (MSPB Docket No. AT-3443-09-0686-I-1) (affirming the Board’s decision, which dismissed this retirement appeal for lack of jurisdiction on the basis that OPM had not issued a final decision)

Gingery v. Department of the Treasury, No. 2010-3092 (Oct. 7, 2010) (MSPB Docket No. CH-3330-09-0303-I-1) (affirming the Board’s decision, 113 M.S.P.R. 157 (2009), which denied the appellant’s request for relief in this VEOA appeal)

Smiley v. Department of Defense, No. 2010-3039 (Oct. 12, 2010) (MSPB Docket No. PH-0752-09-0312-I-1) (affirming the Board’s decision, which affirmed the appellant’s removal on misconduct charges)

Goodman v. Merit Systems Protection Board, No. 2010-3121 (Oct. 12, 2010) (MSPB Docket No. CH-844E-08-0713-I-2) (affirming the Board’s decision, which dismissed a refiled appeal as untimely filed without good cause shown)

Kugler v. Department of Agriculture, No. 2010-3124 (Oct. 12, 2010) (MSPB Docket No. CH-0752-09-0186-I-1) (affirming the Board’s decision, which affirmed the appellant’s removal)

Perry v. Merit Systems Protection Board, No. 2010-3119 (Oct. 13, 2010) (MSPB Docket No. CH-0831-09-0853-I-1) (affirming the Board’s decision, which dismissed the appeal as untimely filed)

Galloway v. Department of Agriculture, No. 2009-3279 (Oct. 13, 2010) (MSPB Docket No. AT-0752-06-1173-C-3) (affirming the Board’s decision, which held that the agency substantially complied with a settlement agreement arising from a prior dispute)

Brown v. Department of Defense, No. 2009-3191 (Oct. 13, 2010) (MSPB Docket No. SF-0752-07-0771-B-1) (affirming the Board’s decision, which dismissed the appeal for lack of jurisdiction on the basis that the appellant failed to make a nonfrivolous allegation that her disability retirement was involuntary)

Costa v. Merit Systems Protection Board, No. 2010-3054 (Oct. 13, 2010) (MSPB Docket No. DE-0752-09-0075-I-2) (affirming the Board’s decision, which dismissed the appeal for lack of jurisdiction on the basis that the appellant failed to establish that her resignation was involuntary)

Toyama v. Leavitt, No. 2010-3038 (Oct. 13, 2010) (MSPB Docket No. SE-0752-03-0358-M-1) (affirming the Board’s decision, which sustained the appellant’s removal for refusing to accept a directed reassignment)

Baney v. Department of Justice, No. 2010-3132 (Oct. 13, 2010) (MSPB Docket No. DA-4324-09-0224-I-2) (affirming the Board’s decision, which found that the agency did not violate the appellant’s USERRA rights)