Jones v. Department of Transp.

Decision Date09 July 2002
Docket NumberNo. 01-3276.,01-3276.
Citation295 F.3d 1298
PartiesF. Paul JONES, Petitioner, v. DEPARTMENT OF TRANSPORTATION, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

Sheldon I. Cohen, Sheldon I. Cohen & Associates, of Arlington, VA, argued for petitioner.

Elizabeth G. Candler, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director; and Bryant G. Snee, Assistant Director.

Before LOURIE, GAJARSA, and PROST, Circuit Judges.

GAJARSA, Circuit Judge.

The Department of Transportation ("DOT") removed Mr. Jones from his position as a Criminal Investigator in the DOT's Office of the Assistant Inspector General for Investigations. The removal charge was for physical inability to perform the functions of his position. At the time he was removed, Mr. Jones was permanently unable to perform his position due to a severe physical incapacity, but Mr. Jones had a positive balance of leave voluntarily transferred to him from other Federal employees. Specifically, Mr. Jones received approximately seven years of donated leave. At the time it removed Mr. Jones, the DOT had approved his use of nearly five years of the donated leave, allowing Mr. Jones to retain his employee status from his incapacity in 1995 through 2000. Mr. Jones appealed his removal to the Merit Systems Protection Board ("the Board"), conceding that the elements of the removal charge were met, but arguing that he had an affirmative defense: the agency could not remove him as long as he had a positive transferred leave balance. Notwithstanding this alleged defense, the Board upheld the DOT's action. Jones v. Dep't of Transp., No. AT-0752-00-0398-I-1 (M.S.P.B. Nov.28, 2000) (opinion of Administrative Judge ("AJ")) ("Initial Decision"), recons. denied, No. AT 0752-00-0398-I-1 (MSPB May 11, 2001) (opinion of full Board denying reconsideration, resulting in the AJ's decision becoming the final Board decision) ("Final Decision"). Mr. Jones then appealed the Board's decision to this court, raising on appeal only the issue of whether his affirmative defense prohibits the agency from terminating him. We conclude that the Voluntary Leave Transfer Program ("the Program"), see 5 U.S.C. §§ 6331-39, does not prohibit the otherwise-proper removal of an employee, even if an employing agency has approved an employee's participation in the Program and the employee has a positive transferred leave balance. Therefore, the Board did not abuse its discretion or otherwise act contrary to law in upholding the DOT's action of terminating Mr. Jones' employment, and, accordingly, we affirm.


Mr. Jones' appeal involves examining first, the legal attributes of the Program, second, the circumstances surrounding Mr. Jones' physical incapacity and his use of the Program, and, third, the Board's decision reviewing the DOT's removal of Mr. Jones.

A. The Voluntary Leave Transfer Program

Pursuant to the authority Congress granted to the Office of Personnel Management ("OPM") via the Federal Employees Leave Sharing Act of 1988 ("FELSA"), OPM created the Program to serve as a means by which a Federal employee can transfer certain unused portions of his or her accrued annual leave to the leave account of an employee experiencing a medical emergency. 5 U.S.C. §§ 6331-34 (2000).1

The statute defines the term "medical emergency" as follows:

[A] medical condition of an employee or a family member of such employee that is likely to require the prolonged absence of such employee from duty and to result in a substantial loss of income to such employee because of the unavailability of paid leave (disregarding any advanced leave).

Id. § 6331(4).

The statute also specifies the conditions under which a medical emergency no longer exists:

The medical emergency affecting a leave recipient shall ... be considered to have terminated on the date as of which —

(1) the leave recipient notifies the employing agency of such leave recipient, in writing, that the medical emergency no longer exists;

(2) the employing agency of such leave recipient determines, after written notice and opportunity for the leave recipient (or, if appropriate, another person acting on behalf of the leave recipient) to answer orally or in writing, that the medical emergency no longer exists; or

(3) the leave recipient is separated from service.

Id. § 6335(a).

When requesting participation in the Program, an employee includes in the application information the anticipated duration of the medical emergency, "and, if it is a recurring one, the approximate frequency of the medical emergency involved." Id. § 6333(a)(1)(B)(ii). A participant in the Program may use donated leave "in the same manner and for the same purposes as if such leave" were accrued by the employee as regular earned annual leave. Id. § 6333(b), 6303-04 (specifying accrual authority and rates for earned annual leave); see also Id. § 6302(d) (noting that annual leave "may be granted at any time during the year as the head of the agency concerned may prescribe."). Finally, a Program participant may not use donated leave after the medical emergency terminates; if the participant does not use the donated leave, the leave must be restored on a pro-rata basis back to the original donors. Id. §§ 6335(b)(1), 6336.

B. Mr. Jones' incapacity and participation in the Program

Mr. Jones was employed by the DOT as a Criminal Investigator (GS-13) when he suffered an incapacitating, non-work-related brain aneurysm on May 28, 1995, while attending a Memorial Day picnic. This left Mr. Jones permanently unable to perform the physical duties of a Criminal Investigator.

After becoming incapacitated, Mr. Jones applied on October 4, 1995, to receive leave donations from other Federal employees through the Program.2 Later that year, on November 21, 1995, the DOT's Office of Inspector General ("OIG") notified Mr. Jones of its approval of his application to receive donations of annual leave through the Program.

Over the next few months the Federal employee community, in particular the Federal law enforcement employee community, responded generously and donated, in aggregate, a substantial amount of leave to Mr. Jones. By a letter dated April 16, 1996, the DOT/OIG notified Mr. Jones that as of March 8, 1996, employees from various Federal departments and agencies had donated 14,144 hours, or about seven years worth of forty-hour work-weeks, to Mr. Jones' transferred leave account through the Program.3 This generous response from the Federal employee community necessitated additional action by DOT/OIG and Mr. Jones to determine how to proceed.

1. Feedback from the GAO and OPM

Given the aggregate quantity of donated leave, in a letter dated March 15, 1996, the DOT/OIG requested input from the Comptroller General of the General Accounting Office ("GAO"). The DOT/OIG noted that Mr. Jones' spouse had advised the DOT/OIG on February 8, 1996, that Mr. Jones was completely paralyzed on his right side and had only recently spoken his first word in nine months. The DOT/OIG stated that it had approved participation in the leave donation program based on the medical certification provided by Mr. Jones which "cited `significant improvement' and the need to provide the employee with as much opportunity as possible to recover." In addition, the DOT noted that Mr. Jones and his spouse now had an expectation that Mr. Jones would stay on "leave status up to the date of his retirement eligibility and beyond." The DOT/OIG further documented for the GAO that Mr. Jones was currently unable to perform his duties and that permitting Mr. Jones to remain on leave status for several years would create a hardship for the DOT/OIG office where Mr. Jones had worked. The DOT/OIG sought input from the GAO as to whether the Program allowed or prohibited long-term leave status supported by donated leave, whether any limits on donated leave existed, and what actions DOT/OIG could take under the statutory and regulatory provisions defining a "medical emergency."

The GAO rendered an opinion to DOT/OIG, dated July 26, 1996, but, recognizing that OPM had primary statutory and regulatory authority for the Program, also forwarded a copy of the DOT/OIG's request to the OPM. The OPM responded separately to the DOT/OIG request for guidance. Both the GAO and the OPM agreed that: (i) the statute and implementing regulations did not limit the amount of leave that may be donated to an employee; but that (ii) employing agencies have discretion to approve or disapprove both an employee's participation in the program and have discretion "to approve or deny [an employee's] requests to use donated leave after the employee has been approved as a leave recipient."

2. DOT/OIG's decision to keep Mr. Jones in the Program until he qualified for full retirement

From January through May 1997, DOT/OIG requested an additional medical evaluation of Mr. Jones and preliminarily determined to terminate Mr. Jones' participation in the Program effective June 7, 1997. DOT/OIG suggested to Mr. Jones that he apply for disability retirement after his participation in the Program terminated. However, in June 1997, DOT/OIG reconsidered its approach to the situation and committed to keep Mr. Jones in the Program for several more years.4

By letter dated June 5, 1997, the DOT/OIG "assure[d]" Mr. Jones that he would "remain in his leave status until and unless the [GAO] Comptroller General advises [that] we have no discretion to continue him in the ... Program." There is no indication that the GAO Comptroller General ever so advised DOT/OIG. However, the DOT/OIG qualified its position as it only committed to keep Mr. Jones in the Program "so long as his `medical emergency' continues or until he is first eligible for full law enforcement retirement benefits which [DO...

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