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The Army Lawyer

ARTICLE: Navigating an Enforced Leave Appeal

February, 2008

2008 Army Law. 42


Richard W. Vitaris *



P1 Enforced leave cases are frequently misunderstood by agency attorneys and personnel specialists. Understanding the type of situations where enforced leave comes up will help the agency avoid problems as well as enable the agency to correct mistakes before they become costly.

This article will define enforced leave and provide counsel with an analytical framework for evaluating such cases. The article will also address public policy problems created by the current enforced leave case law and suggest reform to cure these problems.

Enforced leave is any situation where management requires a civilian employee to take leave, whether it is annual leave, leave without pay, or sick leave. 1 On the other hand, there is no enforced leave when the employee voluntarily initiates an absence, even an indefinite one. 2 Put another way, enforced leave is a type of constructive suspension. An employee who is put on enforced leave for thirty days is considered to have been suspended for thirty days.

An agency may formally propose an employee's placement on enforced leave for fifteen days or more, in accordance with Title 5 procedures, 3 affording the employee thirty days advanced notice of the reasons for the action and an opportunity to respond to the deciding official either orally, in writing, or both. Such actions are plainly within the Merit Systems Protection Board's (MSPB) jurisdiction and are not the subject of this article. This article focuses on the problems created when an agency does not follow Title 5 procedures ...
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