U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

E. Paul Jones v. Department of Transportation, No. 01-3276, (Fed. Cir., July 9, 2002).

The Voluntary Leave Transfer Program does not prohibit an 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.

Mr. Jones was employed by the Department of Transportation (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. Mr. Jones applied and was approved by the agency to receive leave donations from other Federal employees through the Voluntary Leave Transfer Program. Over the next few months the Federal employee community, in particular the Federal law enforcement community, donated 14,144 hours or about seven years worth of forty-hour work-weeks, to Jones' transferred leave account through the program.

Given the aggregate quantity of donated leave, at various times the agency requested opinions from the Comptroller General of the General Accounting Office (GAO) and the Office of Personnel Management (OPM). Both the GAO and the OPM agreed that: (1) the statute and implementing regulations did not limit the amount of leave that may be donated to an employee; but that (2) 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."

On February 26, 2000, the DOT removed Mr. Jones from his position as a Criminal Investigator 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, but he had a positive balance of more than two years of leave. Also, at the time of removal, the DOT had approved Mr. Jones's use of nearly five years of the donated leave, allowing Mr. Jones to retain his employee status from his incapacity in 1995 through 2000. He had also been offered disability retirement but refused.

Mr. Jones appealed his removal to the Merit Systems Protection 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. The MSPB's regional office upheld the agency's removal. The full Board denied the employee's petition for review and the initial decision became the final Board decision. Mr. Jones then appealed the Board's decision to the Federal Circuit, raising on appeal only the issue of whether his affirmative defense prohibited the agency from terminating him.

In reviewing the Board's decision, the Federal Circuit agreed with OPM's interpretations that: (1) the Voluntary Leave Transfer Program is intended to be a stopgap measure to help an employee until he/she is able to receive disability retirement; (2) termination of a medical emergency when an employee "is separated from service" encompasses both voluntary and involuntary separations; (3) donated leave may accumulate without limit; however, the employing agency retains discretion to approve or disapprove use of the leave under the laws governing use of annual earned leave and the use of leave generally; and (4) removal based on the employee's physical inability to perform his job functions, where the removal was not based on his extended absence as a result of approved leave or possible use of future donated leave, was considered proper where DOT established that it was medically unlikely that the employee would ever be able to perform his duties.

The Federal Circuit affirmed the MSPB decision upholding the Department of Transportation's removal of Mr. Jones, even though he had a remaining transferred leave balance at the time of his removal.

This decision supports OPM's interpretation that donated leave may not accumulate without limit. The Federal Circuit also held that the employing agency retains the discretion to approve or disapprove use of the donated leave under the laws governing the use of annual leave and the use of leave generally. The court also agreed with OPM's interpretation that a medical emergency ends when an employee's separation from service is either voluntary or involuntary. Finally, the court agreed with OPM that the Voluntary Leave Transfer Program was designed to be a stopgap measure to help an employee until he/she is able to receive disability retirement.