McFadden v. Department of Defense, 85 M.S.P.R. 18 (1999)
This decision restates the two situations in which constructive suspension claims may arise and the rules applicable with respect to that in which an employee who is absent from work for medical reasons asks to return with altered duties, but her request is denied. The Board here clarified that its law, which requires agencies to offer available light duty to an employee who requests to return to work with restrictions, contemplates a formal policy on light duty work equivalent to a regulation or contract. Evidence that the agency had accommodated other employees with light duty work and that it would have accommodated the appellant if possible does not meet this test.

Lorenz v. United States Postal Service, 84 M.S.P.R. 670 (2000)
Nordhoff v. Navy, 78 M.S.P.R. 88, which applies where an employee claims constructive removal through involuntary disability retirement, was clarified to state that to it did not hold that whenever an employee shows that his medical condition could have been accommodated, an involuntary disability retirement claim will automatically succeed. He must generally make the agency aware of his need for accommodation, and request it. Further, the situation at the time of the retirement is not necessarily the only dispositive one, e.g., where the agency had only recently filled a job that would have provided the accommodation the appellant requested, he may still be entitled to prevail on a constructive removal claim.

Simonton v. United States Postal Service, 85 M.S.P.R. 189 (2000)
Only the Office of Workers’ Compensation programs (OWCP) may determine that an employee’s medical restrictions, once found to have been based on a compensable injury, are no longer work-related. Thus, when the agency determined that the appellant, although still not medically capable of performing his job, withdrew his limited duty based on its own ultra vires determination that his medical restrictions are no longer work related, and that action caused the appellant’s absence, his absence constituted a constructive suspension. That OWCP several months later made a similar finding only validates the agency’s act from the effective date of the OWCP decision.

Wright v. Department of Veterans Affairs, 85 M.S.P.R. 358 (2000)
In this decision, after restating the test for jurisdiction over a claim that an action was made involuntary by intolerable working conditions, which are generally raised in connection with claims of coerced resignation and retirement, the Board held that a claim that return to work was prevented by such conditions (that is, an allegation of a constructive suspension) should also be judged against the same involuntariness standards.

Hamilton v. United States Postal Service, 86 M.S.P.R. 215 (2000)
The Board found that the appellant proved that he was entitled to appeal an adverse action to the Board despite his excepted service status because he proved that he was a preference eligible under 5 U.S.C. § 2108. The decision relied on OPM guidance explaining that any Armed Forces Expeditionary Medal qualifies for veterans’ preference and that a DD Form 214 does not have to show the name of the theater or country of service for which the medal was awarded.

Miller v. Department of Transportation, 86 M.S.P.R. 293 (2000)
Section 307 of the Wendell H. Ford Aviation Investment and Reform Act for the 21^st Century, Pub.L. No. 106-181, (the Ford Act) is effective beginning April 1, 1996, and provides Board appeal rights to FAA employees from any action that was appealable to the Board as of March 31, 1996. Thus, FAA employees may now appeal to the Board any matter that occurred since that time that was appealable prior to it.
 

Green v. General Services Administration, 220 F.3d 1313 (Fed. Cir. 2000)
The regulation governing an employee’s withdrawal of a resignation, 5 C.F.R. § 715.202(b), also applies to an employee’s request to withdraw from a voluntary separation or "buyout" agreement.  An employee’s commitment to enter into a separation agreement is a valid reason for the agency to deny an employee's request to withdraw from such an agreement, and where the separation is otherwise voluntary, the Board does not have jurisdiction.
 

Hesse v. Department of State, 217 F.3d 1372 (Fed. Cir. 2000)
The 1994 amendments to the Whistleblower Protection Act did not make the denial, revocation, or suspension of a security clearance a "personnel action" under 5 U.S.C. § 2302(a)(2) that could be raised in an individual right of action filed with the Board after seeking corrective action from the Office of Special Counsel.
 

Schmittling v. Department of the Army, 219 F.3d 1332 (Fed. Cir. 2000)
The Board may not assume that all jurisdictional elements are met in order to consider an individual right of action appeal on the merits.
 

Monasteri v. Merit Systems Protection Board, 232 F.3d 1376 (Fed. Cir. 2000)
The Board does not have jurisdiction over an appeal by a Foreign Service National employee where the employing agency terminated the employee pursuant to its "special plans for reduction in force in its foreign national employee programs" under 5 CFR 351.201(d).
 

Kelley v. Merit Systems Protection Board, 241 F.3d 1368 (Fed. Cir. 2001)
A reduction in pay is typically an adverse action over which the Board has jurisdiction. Therefore, the Board has jurisdiction where an agency transferred an employee from a full-time position to a part-time position unless it is clear that the employee suffered no reduction in pay.
 

Edwards v. Department of Justice, 87 M.S.P.R. 518 (2001)
This case discusses the Board’s jurisdiction over claims that a non-selection action actually constitutes an appealable determination of unsuitability under 5 CFR Part 731. In it, the Board clarified its precedent to hold that a governmentwide bar to competitive service employment is not a jurisdictional prerequisite to a suitability appeal. That is, if an individual is found to be unsuitable for a position based on the reasons set forth under the suitability regulations issued by the Office of Personnel Management, see 5 CFR 731.202, the Board may conclude that the candidate was subjected to an appealable constructive suitability determination.

Manlogon v. Environmental Protection Agency, 87 M.S.P.R. 653 (2001)
Because the law of constructive demotions under Russell v. Department of the Navy, 6 M.S.P.R. 698, had become clouded, the Board used this case to clarify it. Although Hogan v. Department of the Navy, 81 M.S.P.R. 252, has been interpreted to hold that a constructive demotion can only be found where the higher graded position had been classified "subsequent to" the appellant’s reassignment, the Board here found no reason for requiring a particular sequence of events. Thus, it overruled the "subsequent to" requirement in Hogan. However, it reaffirmed the rule that an argument that an appellant’s position "should have been" upgraded does not suffice as a claim of constructive demotion. Finally, it held that the fact that the appellant’s allegedly reclassified job was abolished without ever having been filled does not defeat the claim during the time period the job was classified at the higher level. The decision also discusses certain rules concerning position classification and when it becomes effective for purposes of this kind of case.
 

Campbell v. United States Postal Service, 88 M.S.P.R. 546 (2001)
After noting that the rules for crediting time in a non-pay status for competitive service probationers do not apply to the excepted service, the Board concluded that the appellant’s time in a non-duty status was creditable for purposes of her completion of one year of current continuous service in the Postal Service.
 

Redditt v Army, 88 MSPR 41, March 12, 2001.  In one of its only decisions involving demonstration projects established by OPM under 5 USC Chapter 47, the Board found that its jurisdiction was limited by OPM's waiver of 5 USC 5335 (relating to within grade increases).  The employee had attempted to appeal the agency's failure to award him a performance-based pay increase. 
 

Martinez v Interior, 88 MSPR 169, March 30, 2001. An employee who alleged that he was promised a promotion upon successful completion of a two year training program, is entitled to a jurisdictional hearing on his claim that he was coerced into resigning when he was not selected for promotion.  The agency asserted that all trainees had to apply for permanent positions at the higher grade, that it had made extensive efforts to help him locate a permanent position and that it would have continued to employ the him until he obtained such a promotion.
 

Buchanan v Energy, Fed. Cir, No. 01-3018, April 9, 2001.  The employee agreed to a last chance agreement that provided that "any failure to be on duty during scheduled duty hours" will result in the employee being AWOL and being in violation of the agreement.  Subsequent to still another written warning, the employee was cited as being absent from her work area for several extended periods during a particular day.  The Board affirmed the removal of the employee without a hearing and the Federal Circuit upheld this decision, finding that the last chance agreement was clearly violated and that a hearing was not required. 
 

Brown et al, v Veterans Affairs, Fed. Cir. Nos. 00-3278, -3313, -3314, April 18, 2001. 

Neither the Veterans Preference Act (VPA) nor the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) accord veterans preference for promotions and intra-agency transfers. 
 

Costa v. DOD, 88 MSPR 293, May 1, 2001. In reviewing an appeal of an arbitration award which upheld the suspension of the employee for a number of incidents of misconduct involving students at the DOD school where he was employed, the Board noted that the scope of its review of arbitrators' awards is limited and that awards of arbitrators are entitled to deference. Absent legal error, the Board cannot substitute its conclusions for those of the arbitrator, even if it would disagree with the arbitrator's decision.  After carefully reviewing the arguments presented by the parties and the arbitrator’s award, the Board sustained the agency action.
 

Campbell v. USPS, 88 MSPR 546, June 21, 2001.   All time in a leave without pay status counts toward completion of the one-year of current and continuous service necessary for a preference eligible employee in the excepted service to have adverse action rights.  In this case, the employee was hired on August 7, 1997 and removed on July 9, 1999.  The Board ruled that the employee was covered by Chapter 75 notwithstanding the fact that he had been on LWOP for all but the first month of this period of time.  The Board noted that in the competitive service, the extent to which time in a nonpay status is creditable toward completion of the probationary period is limited to 22 workdays, but no such limitation is applicable to the excepted service.
 

Rogers v Army, 88 MSPR 610, June 26, 2001.  Under USERRA, an employee may not be separated while performing military service except for cause.  Here the employee's position was abolished in a RIF and the agency detailed him to a unclassified set at the same pay and grade.  The Board found that this action failed to meet the requirements of USERRA and that the agency was required to reassign him to a position of like status and pay.  "Status" is defined as including the "rank or responsibility of the position, its duties, working conditions, pay, tenure, and seniority."   Here it found the agency's efforts to find a permanent position for the employee were seriously deficient. 
 

Freeman v Navy, 88 MSPR 659, June 26, 2001.  The employee in this case claimed that ex parte communication between the proposing and deciding officials violated his due process rights.  At issue was a "Douglas factors" worksheet that was prepared and  shared by the proposing official with the deciding official.  The Board applied the test announced by the Federal Circuit in Stone v FDIC: "only ex parte communications that introduce new and material information to the deciding official will violate the due process guarantee of notice."  Evidence is considered material to the only where it is of sufficient weight to warrant a different outcome.  Here the Board concluded that the information contained in the worksheet was not the type of communication likely to result in undue pressure upon the deciding official  to rule in a particular manner.  It ruled that the ex parte communication was not substantial enough to deprive the employee of his due process rights.
 

Shoaf v USDA, Fed. Cir. No. 00-3148, August 7, 2001.  In considering a claim of coerced resignation, the Court articulated the established standard is whether working conditions were made so intolerable by the agency that a reasonable person in the employee's position would have felt compelled to resign.   It then proceeded to remand this case back to the Board because the Board had limited its review of the working circumstances to the two years preceding the resignation, concluding that the agency's actions during the five years preceding the employee's resignation should be reviewed.
 

Metzenbaum v Justice, 89 MSPR 285, August 17, 2001.  Where the matter appealed is not otherwise appealable to the Board (in this case the failure of the agency for medical reasons to hire the employee as a correctional officer), the Board's authority is limited to review of the employee's claim under USERRA  that the decision not to hire him was based on his military service.  Once the Board determined that there was insufficient evidence to support his USERRA claim, it was without authority to review his claim of disability discrimination.  In other words - no "mixed cases" involving USERRA appeals and Title 7 discrimination.
 

Endermuhle v Treasury, 89 MSPR 49, August 31, 2001.  Applying Van Wersch v HHS to the competitive service, the Board holds that an employee is covered by 5 USC 7511 if she is either not serving a probationary period under an initial appointment or has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less.  In this case, the employee had served in a series of overseas limited appointments.  Ultimately, the Board found that the nature of her appointment was limited to the length of time of her sponsor's (her husband) tour of duty.  Since it was undisputed that her husband's tour had ended, her appointed had also terminated and her claim of coerced resignation was dismissed.
 

Amar v Treasury, 89 MSPR 505, August 31, 2001.   In determining whether ex parte communication to a deciding official violates the due process guarantee of notice, the key issue is whether such communication was of a type likely to result in undue pressure on the deciding official to rule in a particular manner.  When the agency official designated to hear the employee's response to a proposed removal, subsequent to receiving the response of the employee, conducts additional interviews with agency managers and relies on those interviews in making a recommendation to the deciding official, such ex parte communication violates the employee's due process guarantee of notice.
 

Hanley v DOT, 90 MSPR 43, September 5, 2001.  Even if submitted after the close of the record on review, the Board will accept evidence of compliance with an interim relief order if the agency has submitted prima facie evidence of compliance and the agency's evidence shows that that any noncompliance was both inadvertent and promptly corrected when its error was discovered.  In addition, and more significantly, the Board reversed its AJ's holding that the agency use of a positive alcohol test to enforce a last chance agreement violated the due process entitlement of the employee to advance notice and an opportunity to respond to all evidence forming the basis for the decision to remove him.  The Board instead found that the issuance of the decision to remove which had been held in abeyance pending successful completion of the rehabilitation agreement did not violate the prohibition against the introduction of new and material information by ex parte communication to the deciding official.
 

Powell v USPS, CH0752000768-I-2, November 27, 2001.  By contrast to the above  decision in Hanley v DOT, where an agency submits no evidence of interim relief and does not respond to the Board's order to provide proof, the agency petition for review will be dismissed for failure to provide interim relief.
 

Gerges v. Navy, 89 MSPR 669, September 10, 2001.  The test for determining involuntariness is a high one and not assigning an employee sufficient work does not justify the employee to absent himself from the worksite.   An absence under such circumstances does not constitute a constructive suspension. 
 

Sarratt v USPS, CH0752990539-I-1, November 30, 2001.  The agency placed the employee on enforced leave effective June 7, 1999 based on evidence that he was unable to perform the duties of his position as a Letter Carrier.  On June 9, in a letter which the agency was presumed to have received on June 14, the employee provided medical evidence that he could perform in a different position (Distribution Clerk) and asked to be reassigned to such a position.  While the agency approved his reassignment effective July 20, the employee claimed that he should not have been placed on enforced leave since he was ready, willing, and able to work in the new position and the agency failed to accommodate his disability..  The Board held that while the enforced leave was initially proper, once the agency had evidence that the employee could return to work, although in a different position, it was obligated to end the enforced leave.