Rosemary Jenkins v. United States Postal Service

Summary

The Merit Systems Protection Board vacated its February 27, 2023 decision and remanded Rosemary Jenkins’s appeal for further development concerning her placement on enforced leave and the retroactive effect of an Office of Workers’ Compensation Programs reconsideration decision. The Board held that placement on enforced leave for more than 14 days is appealable as an adverse action under 5 U.S.C. § 7512, even when related to a compensable injury, and overruled Kinglee v. U.S. Postal Service to the extent it held otherwise. The Board declined to reconsider Jenkins’s due process claim under the law of the case doctrine.

Holdings

1. Placement on enforced leave for more than 14 days is an appealable adverse action under 5 U.S.C. § 7512(2), even when the enforced leave results from a compensable injury, because the statutory exceptions to appealable adverse actions are limited to those expressly identified in the statute.
2. A partially recovered employee's chapter 75 suspension appeal is not subsumed in, and is not displaced by, a restoration appeal under 5 C.F.R. § 353.304(c).
3. When OWCP reverses a prior determination that an employee's injury was not compensable, restoration rights may apply retroactively during the period covered by the reversed determination.
4. The record was insufficient to determine whether a proper search for limited-duty work during the relevant period would have identified available duties within Jenkins's restrictions, requiring remand for further adjudication.
5. The appellant could not relitigate her due-process claim because the law of the case doctrine applied and none of its recognized exceptions was present.

Questions Presented

1. Whether placement on enforced leave for more than 14 days because of a compensable injury is an appealable adverse action under 5 U.S.C. § 7512 and within the Board's chapter 75 jurisdiction.
2. Whether the appellant's chapter 75 remedies were subsumed in, or displaced by, a restoration appeal under 5 C.F.R. §§ 353.301(d) and 353.304(c).
3. Whether OWCP's retroactive determination that the injury was compensable conferred restoration rights during the period of enforced leave.
4. Whether the record was sufficiently developed to determine whether the agency conducted a proper search for limited-duty work and whether available work existed.
5. Whether the appellant could relitigate her due-process claim under the law of the case doctrine.

Disposition

vacated