[00:00:41] Speaker 03: Okay, our third case this morning is number 15-3102, Rosario Fabregas versus MSPB, Mr. Guyarza. [00:00:50] Speaker 05: Good morning. [00:00:50] Speaker 05: May it please the court? [00:00:52] Speaker 05: My name is Robert Guyarza from the law firm of Latham Rockins, and I'm representing the petitioner today, Jose Rosario Fabregas. [00:01:00] Speaker 05: The board's presidential opinion in this case, which requires us showing the wrongful action, was based on plain error. [00:01:09] Speaker 05: This court in Holloway [00:01:11] Speaker 05: expressly held that this positive inquiry into a constructive suspension jurisdiction is whether or not the absence was involuntary or voluntary. [00:01:20] Speaker 05: And here, Mr. Rosario's absence was clearly involuntary. [00:01:24] Speaker 04: How was it involuntary when he, according to the record, was given repeated requests to provide information so he could return to work and he never provided the information? [00:01:38] Speaker 05: There's two aspects to the answer to that question. [00:01:41] Speaker 05: The first is that the decision that was made on June 26th was that Mr. Rosario would not be allowed to return to work. [00:01:49] Speaker 05: The second is that any inquiry into that conflates the merits with the jurisdiction. [00:01:54] Speaker 05: The question here is just about jurisdiction. [00:01:57] Speaker 05: And as the court held in Bonk and Garcia, that's a distinct issue from the merits consideration. [00:02:03] Speaker 05: The jurisdiction of the board is determined under section 7512. [00:02:06] Speaker 05: And the adjudication of the merits is determined under section 7513. [00:02:11] Speaker 05: But here, it is clearly involuntary because Mr. Castillo and Mr. Rosario's supervisor directed him to take leave because he would not be allowed to return to work. [00:02:20] Speaker 05: And the facts are pretty straightforward. [00:02:22] Speaker 05: Mr. Rosario was absent on voluntary leave, temporary voluntary leave, and he informed his employer when he would be returning, which was July 2, 2012. [00:02:31] Speaker 05: His employer told him, no, you're not allowed to return to work. [00:02:35] Speaker 02: You agree, though, that when somebody is on extended medical leave, the agency is entitled to get [00:02:40] Speaker 02: sufficient medical documentation to show that they're capable of performing their duties, right? [00:02:46] Speaker 05: I respectfully know, Your Honor, we do not. [00:02:48] Speaker 05: No, why not? [00:02:50] Speaker 05: Well, any inquiry into, again, before I answer that, this goes to the merits itself, not the voluntariness of the leave. [00:02:56] Speaker 02: Well, just answer the question, though. [00:02:59] Speaker 02: Whether it goes to jurisdiction or merits is something else, but I think our precedent is pretty clear, isn't it, that if somebody is on extended medical leave and [00:03:09] Speaker 02: because they cannot perform their work duties, isn't an agency entitled to get a medical certification before they return them to work? [00:03:17] Speaker 02: No, Your Honor, because that would violate the ADA. [00:03:19] Speaker 02: And executive agencies... Isn't that exactly what you have to do under the ADA to be returned to work to show that you're capable of doing it? [00:03:26] Speaker 02: And if you can't do the full duties, you get a reasonable accommodation? [00:03:30] Speaker 05: No, Your Honor. [00:03:31] Speaker 05: Under the ADA, I believe you're thinking of the FMLA, which does have an express regulatory authorization for return to duty certification. [00:03:40] Speaker 05: sick leave, which is temporary forever. [00:03:43] Speaker 02: This isn't going to be very useful to me. [00:03:44] Speaker 02: Let's just assume you're wrong on that. [00:03:46] Speaker 02: I don't agree with you on that. [00:03:48] Speaker 02: If that's the case, then where are we left with this case? [00:03:54] Speaker 02: Because the agency viewed his medical certifications as insufficient. [00:03:59] Speaker 02: And so he's left with the choice, either I give sufficient medical [00:04:07] Speaker 02: Information, I take leave or I just don't come to work and they do what they will. [00:04:12] Speaker 02: Isn't his choice to take leave voluntary? [00:04:16] Speaker 02: He was not given the choice, Your Honor. [00:04:18] Speaker 02: The pertinent- He has to apply for leave. [00:04:20] Speaker 02: They didn't specifically put him on leave over his objection. [00:04:25] Speaker 02: They did. [00:04:25] Speaker 02: He specifically- That's not what the board found out. [00:04:27] Speaker 02: We're getting into facts now. [00:04:29] Speaker 02: I mean, let's assume that he voluntarily decided, well, if you're not going to let me come back, I'm going to take a leave because I want to get paid. [00:04:37] Speaker 05: The first question answers the jurisdictional issue, which is the issue here, which is they did not allow him to come back. [00:04:44] Speaker 05: If your honor and the panel is concerned at all, whether or not the... Here's the problem. [00:04:48] Speaker 02: I don't know that the board necessarily looked at this correct analytically, but I'm not sure you are either. [00:04:54] Speaker 02: Because all these constructive cases, whether it's constructive suspension or constructive removal because somebody retired or resigned, go to whether the choice the employee made [00:05:07] Speaker 02: was voluntary, even if unpleasant, or was so forced by the agency that it's considered involuntary. [00:05:14] Speaker 02: And so in cases where the choice is very, very unpleasant, we've still held that it's voluntary as long as there was another choice. [00:05:25] Speaker 02: And so the other choice here wasn't it submit sufficient medical evidence or allow the agency to put him on AWOL and then challenge that as an adverse action. [00:05:36] Speaker 02: Instead, he took leave and got paid. [00:05:39] Speaker 05: Well, that choice is not a real choice. [00:05:41] Speaker 05: If you back up and look at it... Okay, let me ask you hypothetically. [00:05:44] Speaker 02: If instead of taking leave here, he had said, I'm sick of this, I'm eligible for retirement, I'm going to retire because these conditions are intolerable. [00:05:53] Speaker 02: Would that be a constructive removal? [00:05:57] Speaker 05: Well, forced retirement is a different scenario with different legal... I don't think so. [00:06:01] Speaker 02: I think that we're talking about presumed [00:06:05] Speaker 02: actions taken by employees that are normally presumed to be voluntary, like retiring, like resigning, like taking leave. [00:06:12] Speaker 02: And our question is, did the agency do something that coerced them into making that choice as the only possible choice, or were there other choices, even if they were unpleasant? [00:06:22] Speaker 05: Well, the other choice that was presented to him was to provide medical information, and he did. [00:06:26] Speaker 05: He provided the June 7th letter. [00:06:28] Speaker 05: He authorized the release of his medical records. [00:06:31] Speaker 05: He also authorized his employer to contact his physician. [00:06:34] Speaker 05: and he authorized and requested that his physician be allowed to talk to the agency physician. [00:06:39] Speaker 02: So he did comply with everything that was requested. [00:06:42] Speaker 02: But the board found that he never satisfactory complied. [00:06:45] Speaker 02: And that June 27th letter didn't say he could come back to work full-time. [00:06:49] Speaker 02: It was essentially a request for an accommodation to work part-time. [00:06:53] Speaker 05: Well, the board was talking about the wrongful action, whether or not they had the right to prevent him from returning to work. [00:06:58] Speaker 05: Again, that goes to the merits here, not to the jurisdiction. [00:07:01] Speaker 03: But why is this a jurisdictional issue at all? [00:07:04] Speaker 03: The Supreme Court has told us in recent years, stop calling things jurisdictional, which really aren't. [00:07:10] Speaker 03: And it seems to me that this falls into that category. [00:07:14] Speaker 03: You know, if you say his failure to submit the documentation was a voluntary act, I mean, so is everything else. [00:07:24] Speaker 03: If you don't perform your duties at work, that's a voluntary act. [00:07:27] Speaker 03: If you punch your supervisor, that's a voluntary act. [00:07:30] Speaker 03: I mean that sounds as though everything becomes a question of constructive suspension or constructive removal. [00:07:37] Speaker 03: Why isn't this simply a case where the agency effectively suspended him because it would let him return to work and that's sufficient for jurisdiction and then on the merits the board can decide whether [00:07:54] Speaker 03: he was entitled to come back to work without submitting the documentation or not. [00:08:00] Speaker 03: Why do we keep calling this a jurisdictional issue? [00:08:02] Speaker 05: I agree with your analysis, Judge Dyke. [00:08:05] Speaker 05: That is the proper analysis here. [00:08:07] Speaker 05: That the court refused to allow him to return to work, and once that suspension passed 14 days, it was appealable. [00:08:14] Speaker 03: Yeah, but you seem to want to get into the wrongfulness issue, which seems to me is not properly part of the jurisdictional determination. [00:08:22] Speaker 03: It's really [00:08:23] Speaker 03: We agree. [00:08:24] Speaker 03: It's part of the merits. [00:08:26] Speaker 05: We agree. [00:08:26] Speaker 05: And the test here that was applied by the board, erroneously, was that wrongful action, in addition to involuntariness, has to be shown for jurisdiction, not other merits. [00:08:35] Speaker 02: But we're not looking... The action that we're looking at that's claimed to be a constructive suspension and involuntary is his taking the lead. [00:08:46] Speaker 02: And we have to look at that under the guise of Garcia and determine, as a jurisdictional question, [00:08:53] Speaker 02: whether a preponderance of the evidence supports whether that was, in fact, voluntary or not. [00:08:59] Speaker 02: And the board found, as a matter of fact, that his decision to take leave was not so coerced as to become involuntary and therefore a constructive suspension. [00:09:11] Speaker 02: Isn't that exactly what's required by Garcia? [00:09:14] Speaker 05: I don't believe the board found that he wasn't coerced into not taking it, Your Honor. [00:09:18] Speaker 05: The board found that there was no wrongful action here. [00:09:20] Speaker 05: Therefore, there was no jurisdiction [00:09:22] Speaker 05: So it couldn't even reach the merits. [00:09:24] Speaker 02: I'm not talking about merits either. [00:09:26] Speaker 02: Garcia made clear that whether something is an involuntary action or not is a jurisdictional question. [00:09:34] Speaker 02: And whether that's right or not, it's an en banc case that we're bound by. [00:09:37] Speaker 02: And so I don't see any difference between a constructive removal based upon a coerced retirement [00:09:44] Speaker 02: in a constructive suspension based upon a coerced taking of leave. [00:09:48] Speaker 02: And unless he can show that his only choice was to take leave, I don't see anything involuntary about it here. [00:09:54] Speaker 05: Well, Your Honor, constructive suspensions are different than involuntary retirements. [00:09:58] Speaker 05: Forced retirements have a presumption of regularity and voluntary retirement. [00:10:01] Speaker 02: Why doesn't taking leave have a presumption of regularity? [00:10:04] Speaker 05: Certain leaves don't, but that has never been extended. [00:10:07] Speaker 05: Taking leave is simply filling out a form. [00:10:09] Speaker 02: We're looking at the same question. [00:10:12] Speaker 02: The employee took the action. [00:10:14] Speaker 02: I don't think there is any evidence that he said, don't put me on leave. [00:10:19] Speaker 02: There certainly is. [00:10:21] Speaker 02: That's not what the board found. [00:10:22] Speaker 02: I mean, the board found that there was this interactive process, and that he ultimately said, well, if you're not going to take me back, put me on leave. [00:10:29] Speaker 02: That doesn't, to me, sound like that that wasn't a choice. [00:10:32] Speaker 02: It was an unpleasant choice. [00:10:34] Speaker 02: In any event, I don't want to take you down this path too long, but assuming that [00:10:40] Speaker 02: The question of whether something is involuntary is applied the same across retirements, resignations, and suspensions. [00:10:49] Speaker 02: Why is it any different here that he was faced with the unpleasant choice of either taking leave, which he didn't want to do, submitting appropriate medical documentation, which he didn't, or letting the agency put him on AWOL, which then would turn into an appealable adverse action. [00:11:07] Speaker 05: I think if we step back and look at the regulations that govern [00:11:10] Speaker 05: Any type of suspension like this, that would answer your question, Your Honor. [00:11:15] Speaker 05: Indefinite suspensions like this are allowable under OPM regulations. [00:11:18] Speaker 02: However, employees covered by Chapter 7... Yes, but they're allowable and then an employee can appeal them if it's an actual suspension. [00:11:26] Speaker 02: But when an employee has voluntarily taken the leave, then it's not a suspension. [00:11:30] Speaker 03: Well, I guess that's the question. [00:11:31] Speaker 03: I guess the question is whether the act here was refusing to let them come back to work [00:11:38] Speaker 03: or whether the Act was forcing him to take leave. [00:11:41] Speaker 03: And I had understood that the board's claim was the Voluntary Act was not taking leave, but that the Voluntary Act was refusing to submit the required documentation. [00:11:52] Speaker 05: Yes. [00:11:53] Speaker 05: Yes, Your Honor, and that is true. [00:11:54] Speaker 05: And if we back up and just look for a second at Pittman, if there's any question whether or not the underlying impetus for the Corps' action here, the concern that a medical disability prevented his return to work and prevented his safe [00:12:08] Speaker 05: performance of essential duties, this court's already precedentially found that absence or enforced absence pending inquiry into such medical conditions to be disciplinary and to be a suspension. [00:12:22] Speaker 05: And as Pittman explained, that was found by this court in Mercer and Thomas. [00:12:27] Speaker 05: So that element. [00:12:27] Speaker 02: But in that case, wasn't the employee just suspended? [00:12:31] Speaker 02: He didn't voluntarily take a leave. [00:12:34] Speaker 02: Correct. [00:12:35] Speaker 02: So that's an adverse action. [00:12:36] Speaker 02: When you suspend somebody without pay, that's an adverse action. [00:12:40] Speaker 02: When you're faced with the choice of possible suspension without pay because the agency won't let you come back to work, submitting medical documentation, or taking leave, and you choose to take the leave, that's a voluntary action. [00:12:58] Speaker 02: I see it no different than somebody coming in and saying to an employee, look, you committed awful misconduct. [00:13:06] Speaker 02: we're going to remove you if you don't retire. [00:13:09] Speaker 02: And the person retires. [00:13:10] Speaker 02: That's not a truly voluntary retirement, but we've held that that's not an appealable action. [00:13:17] Speaker 02: There is a distinction here, though, Your Honor. [00:13:19] Speaker 05: The distinction is here that the court told him he was not allowed to perform the duties of his job on June 26. [00:13:29] Speaker 05: That's the action that started it. [00:13:32] Speaker 05: And if you look at the regulations that permit [00:13:33] Speaker 04: What started it was the disciplinary suspension. [00:13:41] Speaker 04: And then the overturning of that and his reinstatement. [00:13:47] Speaker 04: And at that point, he's the one who says, I can't do it. [00:13:52] Speaker 04: So it is voluntary in that sense. [00:13:55] Speaker 04: It then reaches a point where he says, I'm capable of returning to work. [00:14:01] Speaker 04: And the agency says, wait a minute. [00:14:03] Speaker 04: You told us you were incapable of returning to work for certain reasons, and we want some medical evidence that those reasons no longer are a problem. [00:14:14] Speaker 04: Isn't that the status? [00:14:17] Speaker 05: Yes, but the relevant fact here, Your Honor, is that the agency prevented his return. [00:14:22] Speaker 02: And that prevention started... Is that prevention, is its decision not to allow him to return a defined appealable action in Chapter 75? [00:14:30] Speaker 05: Once it passes 14 days, yes, and that's the holding [00:14:33] Speaker 05: in Mercer and Thomas that if it's pending inquiry, an individual is absent. [00:14:37] Speaker 02: But the problem is it never passed 14 days. [00:14:39] Speaker 02: In response to that, instead of letting it pass 14 days, he voluntarily took leave. [00:14:44] Speaker 05: That direction of a supervisor. [00:14:46] Speaker 05: The regulations that provide for indefinite suspensions like this have an initial decision with 30 days notice where the employee can come back with medical evidence. [00:14:54] Speaker 05: But then once the decision is made to absent that employee, they must provide notice of appealability [00:15:01] Speaker 05: And it becomes appealable. [00:15:02] Speaker 02: It would never have ripened into that because he took leave. [00:15:05] Speaker 05: He took leave at the direction of his supervisor. [00:15:07] Speaker 05: But that's not the issue that's on appeal here, Your Honor. [00:15:11] Speaker 05: The board found that regardless of involuntariness, that there had to be wrongful action. [00:15:17] Speaker 05: And that wrongful action prong is erroneous. [00:15:20] Speaker 05: There is no basis for it. [00:15:21] Speaker 05: That conflates a merits with jurisdiction. [00:15:25] Speaker 03: OK, Mr. Guyer, so you're into your rebuttal time. [00:15:28] Speaker 03: We'll give you two minutes for rebuttal. [00:15:29] Speaker 03: Thank you, Your Honor. [00:15:34] Speaker 03: Mr. McGrawian. [00:15:42] Speaker 01: May it please the court. [00:15:43] Speaker 03: So what's the voluntary act here? [00:15:45] Speaker 03: Is it his failing to submit the required documentation or is it taking leave? [00:15:54] Speaker 01: Your Honor, it was the failure to submit appropriate documentation which then triggered the agency's inquiry as to or which then [00:16:03] Speaker 01: which was a follow-up to the agency's inquiry regarding his medical documentation. [00:16:07] Speaker 01: And it was entitled under the ADA to keep him out until he submitted the proper documentation. [00:16:14] Speaker 03: Well, that may be that they had the right to insist on the documentation. [00:16:18] Speaker 03: I just have difficulty seeing this as a jurisdictional issue. [00:16:22] Speaker 03: A voluntary retirement, a voluntary resignation, which is said to be involuntary, leads to this constructive action analysis [00:16:34] Speaker 03: The same thing would be true, I guess, in the suspension situation if somebody voluntarily stayed away from work. [00:16:41] Speaker 03: But I have difficulty seeing how the failure to submit the documentation becomes a voluntary act turning it into a constructive suspension issue. [00:16:55] Speaker 03: Isn't this really not a jurisdictional issue? [00:16:57] Speaker 03: Isn't this really a merits issue? [00:17:00] Speaker 01: The jurisdictional issue is actually a product of the board's regulation, which this court confirmed or approved of in Garcia. [00:17:08] Speaker 01: And by regulation, an employee is required to prove the board's jurisdiction. [00:17:13] Speaker 01: And until he does, the board does not have jurisdiction. [00:17:15] Speaker 03: Well, but that's just generalizations. [00:17:18] Speaker 03: The question is whether you say that that's a voluntary act because he didn't submit the document. [00:17:25] Speaker 03: It seems to me, if you hit your supervisor, that's a voluntary act too. [00:17:29] Speaker 03: So you have to decide that as a jurisdictional issue rather than as a merits issue. [00:17:33] Speaker 03: I don't understand the framework of the analysis. [00:17:36] Speaker 03: I really don't. [00:17:37] Speaker 01: Well, where it comes from is that because it starts as a voluntary action, the board does not have jurisdiction. [00:17:43] Speaker 03: That's true of hitting your supervisor too, right? [00:17:46] Speaker 01: Yes, but presumably if you hit your supervisor, you will then be suspended and the agency will take an action and put you on suspension. [00:17:53] Speaker 03: Well, they effectively suspended him here. [00:17:55] Speaker 01: They said because you didn't submit the document, you can't come to work. [00:17:59] Speaker 01: Well, what they did was, after he initially took leave, they did not allow him to return. [00:18:04] Speaker 01: But those situations, such as Perez and Holloway, in which it was the employee's first action that absent them from work, those are deemed constructive actions and need to be analyzed as if they are equivalent to involuntary actions, which are within the board's jurisdiction. [00:18:21] Speaker 03: I just don't get it. [00:18:22] Speaker 03: Why isn't it just treated as a suspension and asked whether it was justified or not? [00:18:29] Speaker 03: And it may well be justified because it seems reasonable to require somebody to submit documentation. [00:18:35] Speaker 03: But I just don't understand sort of this artificial treatment of this as a jurisdictional issue by saying that his failure to submit the information was voluntary. [00:18:49] Speaker 01: Does it make any difference whether you call it jurisdiction or merits? [00:18:55] Speaker 01: Well, as this court actually [00:18:56] Speaker 01: noted in Garcia and in Spruill and many other decisions from this court, the jurisdiction and the merits of decisions often are intertwined and the facts are very similar. [00:19:06] Speaker 03: My question is, does it make any difference whether you analyze it as a jurisdictional issue or not? [00:19:12] Speaker 01: Ultimately, in the result, it often doesn't because when constructive action is found, the employee will be deemed to have won due to a lack of due process or something else. [00:19:22] Speaker 01: By regulation, until the employee establishes the action as a constructive action, the board does not have jurisdiction. [00:19:32] Speaker 01: Now, the Petitioner's Council addressed the test in BEAN. [00:19:35] Speaker 01: I would like to briefly explain that a little bit further. [00:19:38] Speaker 01: The purpose of BEAN- So we're arguing about something which doesn't make any difference. [00:19:44] Speaker 02: I mean, the board's test seems a little odd, right? [00:19:46] Speaker 02: I mean, I don't understand where this wrongful action stuff comes from. [00:19:51] Speaker 02: Because the inquiry on all these constructive cases is what seemingly is a voluntary action involuntary. [00:19:59] Speaker 02: Is there an adverse action taken by the agency that's actually appealable? [00:20:05] Speaker 02: Whether the agency did something wrong or not is really kind of beside the point whether they took an action. [00:20:12] Speaker 02: A lot of times they're completely entitled to take adverse actions, but it's still appealable. [00:20:18] Speaker 02: So why is the agency applying, the board applying this test when the central focus should be whether there's an actual adverse action? [00:20:29] Speaker 01: The reason the board applies this test and has chosen to apply this test comes from the fact pattern in Bean. [00:20:35] Speaker 01: You're correct that the vast majority of the situations it comes down to whether or not there's a voluntary action. [00:20:41] Speaker 03: I thought that Bean case was a case where the guy stayed home. [00:20:45] Speaker 03: The Bean case was a case where the employee stayed home. [00:20:48] Speaker 03: I can see that as a voluntary act, staying home. [00:20:51] Speaker 03: I don't see it appropriately characterized as a voluntary act that he didn't submit the information, and therefore the question is whether the board has jurisdiction. [00:20:59] Speaker 01: Well, respectfully, Your Honor, we disagree that it was a voluntary act in Bean. [00:21:04] Speaker 02: Would the board ever have jurisdiction over to review an agency's decision that medical information is sufficient or not, unless it's tied to an adverse action? [00:21:16] Speaker 02: Excuse me, could you repeat that? [00:21:19] Speaker 02: I mean, I don't understand why we're focusing on the medical information and whether it's sufficient or not. [00:21:26] Speaker 02: You can't review that unless it's tied to an adverse action, can you? [00:21:31] Speaker 01: No, Your Honor, we cannot. [00:21:32] Speaker 01: You're correct. [00:21:34] Speaker 01: But if I may briefly go back to Bean, I can explain where this wrongful action element comes from. [00:21:39] Speaker 01: In Bean, what we found eventually was addressing the unpleasant choice doctrine [00:21:45] Speaker 01: that the choice to either work outside of your medical restrictions or stay at home could not be deemed voluntary, and it couldn't be viewed as a meaningful choice. [00:21:55] Speaker 01: Forcing the employee to work outside of medical restrictions seems to go beyond just saying it's unpleasant and seems to be putting too much of a burden on the employee. [00:22:04] Speaker 01: But the only way to square that specific fact pattern with the rest of this court's precedent on constructive suspensions, and frankly, the ADA, [00:22:13] Speaker 01: is to examine whether or not the agency's choice to not provide work within the medical restrictions was wrongful. [00:22:20] Speaker 03: Well, right. [00:22:20] Speaker 03: And that's why we should be considering this as an adverse action in asking whether the agency acted properly or improperly in that context rather than in the jurisdictional context. [00:22:32] Speaker 01: You're correct, Your Honor. [00:22:33] Speaker 01: But because it starts as a voluntary absence, until the employee can prove that it's an involuntary absence within the board's jurisdiction, [00:22:43] Speaker 01: the board simply just does not have jurisdiction. [00:22:47] Speaker 01: That's how the regulation requires it and that's how this court has required us to apply the regulations since Marcia. [00:22:53] Speaker 01: We said, no, the whole framework is wrong. [00:22:57] Speaker 03: It's got to be treated as an adverse action. [00:22:59] Speaker 03: The question becomes whether then the agency's action in requiring the information was wrongful or not wrongful. [00:23:06] Speaker 03: Why doesn't that nicely and simply give you exactly what you want? [00:23:11] Speaker 03: You can argue [00:23:12] Speaker 03: that requiring the information was appropriate, that he didn't submit it, and therefore he was appropriately not allowed to return to work. [00:23:20] Speaker 01: I believe in that scenario it would then effectively require every single employee in the bean scenario and other employees then to have an adverse action when, an appeal adverse action bean scenario, when the guy stays home, that's different. [00:23:34] Speaker 03: Where he does something which can lead him to be disciplined or excluded from the workplace, [00:23:42] Speaker 03: then it becomes an adverse action and the question is whether the agency's demand was wrongful or not. [00:23:48] Speaker 01: I believe in those scenarios you might take away the discretion of the agency to issue the adverse action itself. [00:23:53] Speaker 01: The agency, if an employee punches a supervisor, rightfully has the ability to decide whether or not they want to suspend the employee themselves and if for some reason they don't, that needs to remain in their discretion. [00:24:07] Speaker 01: For us to [00:24:09] Speaker 01: automatically declare every absence if they put him on enforced leave or something like that, or if the person stays home the next day, an appealable suspension. [00:24:18] Speaker 03: You're saying stay home because you didn't submit the information. [00:24:21] Speaker 03: Why isn't that a suspension? [00:24:24] Speaker 01: Because the employee was the one who initially stayed home. [00:24:27] Speaker 01: It was his ability to return to work that's in question, not whether or not he stayed home. [00:24:31] Speaker 03: Well, then if you hit the supervisor, then you got fired because you took a voluntary [00:24:37] Speaker 02: But in that situation... Not unless the agency issues a notice of proposed removal and eventually removes you. [00:24:45] Speaker 01: Yes, I mean in those scenarios the agency needs to take the action first. [00:24:48] Speaker 02: It cannot be... What would have happened here if instead of taking leave there had been an impasse and he wasn't allowed to come back to work and the agency stopped paying him? [00:25:01] Speaker 02: That happens and that extends past 14 days. [00:25:06] Speaker 02: Is that [00:25:08] Speaker 02: an adverse action? [00:25:09] Speaker 01: It would depend on why the agency chose to not allow him to come back to work. [00:25:14] Speaker 01: Under the test that we apply from BEAM, we would look at whether or not the agency was correct in not allowing him to return. [00:25:22] Speaker 01: If it turns out that the agency was wrong for some reason or another, then we would say it was a constructive suspension and an adverse action. [00:25:31] Speaker 03: Okay, Mr. McElroy, thank you. [00:25:32] Speaker 03: We're out of time. [00:25:42] Speaker 00: Good morning, Your Honors. [00:25:43] Speaker 02: Before we get to the argument, do you happen to know where the parties are in the related termination appeal? [00:25:49] Speaker 02: All I could find was I think that there was an initial A.J. [00:25:53] Speaker 02: decision reducing the second termination to a 30-day suspension. [00:26:00] Speaker 02: Has either party petitioned for review of that? [00:26:02] Speaker 00: Yes, Your Honor. [00:26:03] Speaker 00: The agency has petitioned for review, and it's currently before the MSPB. [00:26:08] Speaker 02: Was there a cross-petition challenging [00:26:11] Speaker 02: the reduction by the employee, do you know? [00:26:14] Speaker 00: I am not positive, Your Honor, but I can check on that for you. [00:26:19] Speaker 03: So if you understand the point, why is this a jurisdictional issue? [00:26:23] Speaker 03: Why don't we just treat this as a suspension and then the agency can defend the suspension on the ground that they could properly insist on the information? [00:26:35] Speaker 00: Your Honor, this is properly a jurisdictional issue because the facts of this case are consistent with this court's precedent as to what has been held jurisdictional for constructive suspensions. [00:26:47] Speaker 03: Well, forget about our precedent for the moment. [00:26:49] Speaker 03: I don't think our precedent resolves this question. [00:26:51] Speaker 03: But why does the board want to treat this as a jurisdictional issue instead of just making it nice and simple and say, okay, the question, this is effectively a suspension. [00:27:03] Speaker 03: And therefore, we've got to decide whether the agency's action was wrongful or not wrongful. [00:27:09] Speaker 00: Because the question in this case turns on voluntariness and looking at the facts of this case. [00:27:15] Speaker 03: That's totally artificial to say that the refusal, his being on leave was his own responsibility because he didn't submit the information. [00:27:26] Speaker 03: That's in my earlier hypothetical, if you punch the supervisor, [00:27:31] Speaker 03: then that was a voluntary act, and therefore we have to analyze it as a constructive removal. [00:27:37] Speaker 03: I mean, it just, to me, doesn't make any sense. [00:27:40] Speaker 00: Your Honor, this Court in Garcia specifically set forth that the merits issues and the voluntariness facts. [00:27:46] Speaker 03: But Garcia wasn't dealing with this situation. [00:27:48] Speaker 03: It was dealing with voluntary retirements or resignations. [00:27:52] Speaker 03: And in that situation, we do have to invoke the framework of constructive removal. [00:27:58] Speaker 03: I don't understand why, in this particular context, you have to invoke that framework. [00:28:04] Speaker 00: Because in order to get to the merits, you have to establish voluntariness. [00:28:09] Speaker 02: The underlying merits... Isn't actually the question, in order for the board to have jurisdiction, there has to be an appealable adverse action. [00:28:19] Speaker 00: Yes, Your Honor. [00:28:20] Speaker 00: That is the question in this case. [00:28:22] Speaker 00: And there is no appealable adverse action because the appellant voluntarily absented himself from the workplace [00:28:29] Speaker 00: by not meeting the condition of the agency to, one, set forth what his reasonable accommodation would be. [00:28:36] Speaker 00: He simply failed to answer the agency as to what hours he wanted to work. [00:28:42] Speaker 03: Isn't the key question whether the agency's action in insisting on this information was wrongful or not wrongful? [00:28:50] Speaker 00: Not in accordance with this court's precedent, Your Honor. [00:28:53] Speaker 00: It's specifically in Perez. [00:28:55] Speaker 03: He's not entitled to a determination on whether it was wrongful or not wrongful? [00:28:59] Speaker 00: This court's precedent has applied... No, no, answer my question. [00:29:02] Speaker 03: Is he entitled to a determination whether it was wrongful or not wrongful? [00:29:07] Speaker 00: If there is an adverse action, you will get to the merits. [00:29:10] Speaker 03: But not if it was voluntary. [00:29:12] Speaker 03: If he voluntarily refused to submit the information, he's not entitled to a determination whether the agency's refusal to let him return to work was wrongful or not wrongful. [00:29:23] Speaker 00: First, I would argue there was... No, no, no, not what you would argue. [00:29:25] Speaker 03: Is that right? [00:29:26] Speaker 00: No, Your Honor, because he voluntarily absented himself. [00:29:31] Speaker 03: So he's not entitled to a determination of whether their insistence on the information was wrongful or not wrongful. [00:29:37] Speaker 00: If he can prove that he did not voluntarily absent himself. [00:29:40] Speaker 03: No, no, no, answer my question. [00:29:41] Speaker 03: Is he entitled to a determination as to whether the insistence on the information was wrongful or not wrongful? [00:29:48] Speaker 00: This court in looking at jurisdiction. [00:29:50] Speaker 03: No, what's the answer to the question? [00:29:52] Speaker 00: If he can prove that he voluntarily absented himself. [00:29:55] Speaker 04: Let me pose a hypothetical. [00:29:58] Speaker 04: He voluntarily absents himself for medical reasons. [00:30:02] Speaker 04: And the agency sends him a letter saying, prove that you are of a certain religion before you can return to work. [00:30:14] Speaker 04: Now apply that to Judge Dyke's question. [00:30:18] Speaker 00: I think that's getting to what the petitioner wants the jurisdictional question to be in this case, just to look at what the agency did and what the employee did. [00:30:29] Speaker 00: No, no. [00:30:30] Speaker 03: I'm trying to understand. [00:30:30] Speaker 03: From the board's position, this is a voluntary act. [00:30:34] Speaker 03: Does that mean he is not entitled to a determination of whether the agency imposed an improper requirement on him? [00:30:42] Speaker 00: To the extent the board applied a separate two-prong... No, no, no. [00:30:45] Speaker 02: Yes or no. [00:30:46] Speaker 02: It's really a yes or no question. [00:30:49] Speaker 00: Not if he can, he is not entitled to determine whether or not there was a wrongful action if he cannot in the first place establish that his absence was involuntary. [00:31:01] Speaker 00: So in this case, he cannot... So they can ask him about his religion. [00:31:05] Speaker 00: I'm sorry, Your Honor. [00:31:06] Speaker 04: So they can impose a religious test in violation of the Constitution. [00:31:11] Speaker 00: No, Your Honor. [00:31:12] Speaker 00: And that is, I think, getting to the [00:31:17] Speaker 00: petitioner's argument is you can never look at the totality of the circumstances. [00:31:21] Speaker 00: And in this case, looking at the court's president, you can look at the totality of the circumstances when determining whether or not there was an involuntary act. [00:31:30] Speaker 03: So it was a voluntary act because he failed to submit the information. [00:31:35] Speaker 03: But he's not entitled to a determination of whether the submission of the information was an improper or proper requirement. [00:31:44] Speaker 00: Not in this case, Your Honor, because he must first establish that the absence was involuntary. [00:31:51] Speaker 00: And by making the choice not to submit the documentation or to choose to go on leave, he voluntarily absented himself. [00:31:59] Speaker 03: And that- Oh, he's not entitled to a determination of whether the agency acted wrongfully or not. [00:32:07] Speaker 00: Looking at the totality of- Yes, no. [00:32:10] Speaker 00: Your Honor, this court has applied... Yes or no? [00:32:14] Speaker 03: Is he entitled to a determination of whether the agency acted wrongfully? [00:32:22] Speaker 00: This court has looked at wrongful action when determining... You're really not helping yourself out here. [00:32:28] Speaker 02: I think what your answer is, and you just don't want to say it, is absent in adverse action [00:32:34] Speaker 02: No, because the statute doesn't give the MSPB the jurisdiction to review agencies' determinations of whether somebody is medically fit or not. [00:32:43] Speaker 04: I have to disagree with my colleague. [00:32:45] Speaker 04: I think your answer is no, period. [00:32:48] Speaker 04: That was the question, yes or no. [00:32:52] Speaker 00: Looking at Perez and Holloway, this court has looked at the totality of the circumstances and whether or not [00:33:01] Speaker 00: there was sufficiency of documentation. [00:33:03] Speaker 03: And subsequently, this court... How could it be that he's not entitled to a determination of whether the agency acted wrongfully? [00:33:10] Speaker 03: Because... He says, I'm not going to submit the information. [00:33:13] Speaker 03: It's not proper that you ask for it. [00:33:17] Speaker 03: And I want the MSPB to determine whether that's correct or not. [00:33:21] Speaker 03: And you're saying no, because he didn't submit the information. [00:33:25] Speaker 03: He's not entitled to a determination of whether submitting the information was correct or not correct as required. [00:33:32] Speaker 00: In this case, Your Honor, the agency was correct in requiring the documents and was able to, under the ADA and the CFR, to request the documentation. [00:33:43] Speaker 00: By not submitting the documentation, he voluntarily absented himself from the workplace, and the board correctly found that there was a constructive suspension. [00:33:56] Speaker 03: Okay, thank you. [00:33:58] Speaker 03: I've got your Ms. [00:33:59] Speaker 03: McRory in. [00:34:00] Speaker 00: Yes, Your Honor. [00:34:01] Speaker 03: You're Mr. Fung. [00:34:01] Speaker 03: So the order got mixed up on the sheet here. [00:34:04] Speaker 03: Okay. [00:34:05] Speaker 03: Mr. Garza, you have a few minutes here. [00:34:10] Speaker 03: Thank you. [00:34:12] Speaker 05: Just to build on the hypothetical that you gave, Judge Wallach, if here instead of asking for medical information, they ask for religious information, and he refused, that choice that he has after he refuses to either face AWOL or take leave is not voluntary. [00:34:30] Speaker 05: And here his supervisor instructed him that you have to take leave, otherwise you can be found AWOL because you haven't submitted the information. [00:34:41] Speaker 05: The nature of the information itself, though, whether or not that was authorized, goes to the merits of the action itself, not to jurisdiction. [00:34:48] Speaker 05: And indeed here, briefly Judge Hughes, requesting the information from any employee absent for more than three days does indeed violate the ADA. [00:34:56] Speaker 05: The EEOC has held, and the EEOC is charging Congress. [00:34:59] Speaker 02: Yes, but where in the jurisdictional section of the MSPB does it get the authority to review that rather than as an action under the ADA, which has a completely separate process? [00:35:11] Speaker 02: And indeed, it may violate the ADA, and they may be able to go through EEO processes to challenge that decision. [00:35:18] Speaker 05: But when you wrap up the wrongful action, then the board does address that. [00:35:23] Speaker 05: But the ADA is clear, EEOC is clear. [00:35:25] Speaker 05: It has to be based on present evidence when the individual during the time is requested to re-employment. [00:35:31] Speaker 05: This evidence was not from July 2nd forward. [00:35:35] Speaker 05: The cases we cited in our brief show that, and the EEOC has held that. [00:35:40] Speaker 02: But here, the... They agree, I take it, that the decision whether or not to accept medical evidence standing alone is not an appealable adverse action. [00:35:50] Speaker 02: It has to be actually [00:35:52] Speaker 02: coupled with a suspension of more than 14 days. [00:35:55] Speaker 02: Whether or not to accept it, Your Honor, I'm sorry? [00:35:59] Speaker 02: The agency's determination of whether medical evidence is sufficient is not, in isolation, an appealable action to the Board, is it? [00:36:08] Speaker 02: Correct, because there's two distinct actions here. [00:36:09] Speaker 02: One is the request for medical information. [00:36:11] Speaker 02: A suspension of more than 14 days. [00:36:13] Speaker 05: Correct. [00:36:13] Speaker 05: The other one is the adverse action in Chapter 75. [00:36:15] Speaker 05: And under Thomas and Mercer, this Court's already addressed whether or not pending inquiries are indeed disciplinary, and they held that they are. [00:36:23] Speaker 05: Let's just further questions. [00:36:24] Speaker 03: Okay, thank you, Mr. Garza. [00:36:25] Speaker 03: Thank all counsel and case system.