when he according to the record i was given repeated requests to provide information so he could return to work and he never provided that the information there's two aspects to the answer to that question ok the first is that the decision that was made on june twenty sixth was that mr reserve would not be allowed to return to work the second is that any and any inquiry into that conflates the merits with the jurisdiction question here is just about but here it is clearly involuntary because mr christie of mr geragos supervisor directed him to take a leave because he would not be allowed to return to work and the facts are pretty straightforward mr rosario was absent on voluntary leave temporary voluntar he formed his employer when he would be returning which was july second two thousand and twelve his employer told him no you're not allowed to return to work you agree though that when somebody use extended medical leave the agency is entitled to get sufficient medical documentation to show that they're capable of performing their duties right i respectfully no your honor we do not know why not well any inquiry into again before answer that this goes to the merits itself not the volunt it just answer the question i've whether it goes to the jurisdiction or merits of thing else but i think our president is pretty clear isn't it that if somebody is on extended medical leave and because they cannot perform is temporary for him this isn't going to be very useful to me let's just assume iran that i don't agree with you on that if that's the case then we are left with this case because the agency viewed his medical certification as insufficient and so he's left with a choice either i give sufficient medical information i take leave or i just don't come to work and they do what they love isn't his choice to take a leave voluntary he was not given the choice your honor the permit has to apply for leave they didn't specifically put him on leave over his objection but  specifically ends up with the word that we're getting into facts now i mean let's assume that he voluntarily decided well if you're not going to let me come back i'm going to take a leave because i want to get paid the first question answers the jurisdictional issue which is the issue all these constructive cases where there is constructive suspension and struck you know are constructive removal because somebody retired or resigned go to whether the choice the employee made was voluntary even if unpleasant or medical information and he provided the june seventh letter you authorize release of his medical records he also authorized his employer to contact his physician and he authorized the request of that his physician be allowed to talk to the agency physician so he did action whether or not they had the right to prevent him from returning to work again that goes to the merits here not to the jurisdiction of why is this a jurisdictional issue at all or just misprint court has told us in recent years stop calling thing else if you don't perform your duties of work that's a voluntary act if you punch your supervisor that's a voluntary act i mean that sounds as though everything becomes a question of constructive suspension or construct removal why and why hasn't the simply a case where the agency affectively suspended him because it would let him return to work and that's sufficient for jurisdiction and then on the merits the board can decide whether  really part of the merits we agree in the end the test here that was applied by the border only recently was that wrongful action in addition to involuntary has to be shown for jurisdiction not of the merits but we're not looking at the action that we're looking at that's claimed to be a construct a suspension involuntary is his taking the lead and we have to look at that under the guise of garcia and determine as a jurisdictional question whether a preponderance of the evidence supports whether that was in fact voluntary or not and of workfare on as a matter of fact that his decision to take a leave was not so coerced as to become involuntary and therefore a constructive suspension isn't that exactly what's required by proceed i don't believe the board found that he wasn't coerced into not taking your heart but the court found that there was no wrongful action here therefore there was no jurisdiction so it couldn't reach the i mean the board found that there was a sit in or active process and that he ultimately said well if you're not going to take me back but that doesn't to me sound like that that wasn't a choice it was an unpleasant choice and any of that i don't want to take you down this path too long but assuming that that question of whether something is involuntary is applied the same across retirements resignations and suspensions why is it any different here that is faced with the unpleasant choice yes your honor and that is true and if we back up and just look for a second that pittman if there's any question whether or not the underlying impetus for the court's action here their concern that a medical this ability prevented his return to work and prevent pay that's an adverse action when you're faced with the choice of possible suspension without pay because you did it you know the agency what let you come back to work so many medical documentation we're taking leave any choose to take a leave that's a voluntary action it's not i see it no different then somebody coming in and saying to an employer look you committed awful misconduct we're going to remove you if you don't it is monetary and that's and it then reaches a point where he says i'm capable of returning to work and the agency says wait a minute you told us you were incapable of return to work for certain reasons it's submitted the proper documentation for them may be that they have the right to insist on the documentation i just have difficulty seeing this is a jurisdictional issue you know a voluntary retirement of voluntary  resignation which is said to be involuntary leads to this constructive action analysis the same thing would be true i guess in the suspension situation of somebody voluntarily stayed away from work me if you hit your supervisor that's a voluntary act to i mean so you have to decide that is a jurisdictional issue or as a merits issue i don't understand the the framework of the analysis i really doubt well where it comes from is that because it starts because you didn't submit the document didn't come to work well what they did was after he initially took leave they did not allowed in return but those situations such as parades and holloway in which it was the employees first action that actually do them from work those are deemed constructive actions and need to be analyzed as if they are equivalent to involuntary actions which are within the board service section i just i just don't get it why isn't this treated as a as a as a suspension and asked whether it was justified or not and it may well be justified because it's reasonable to require somebody to submit documentation i just don't understand  jurisdictional issue but ultimately the result it often doesn't because we constructive action is found the employee will be the intuit one due to a lack of due process or something else but by regulation intil the employee establishes the action as a constructive action they do not the watch does not have jurisdiction well the petitioner's counsel addressed the test in being i would like to briefly explain that a little bit further  is really kind of beside the point whether they took any action a lot of times or in completely entitled to take adverse actions but it's still appeal so why is the agency applying the board a plane this test when the agency's decision that medical information is sufficient or not unless it's tied to an adverse action i mean it's i don't understand why we're focusing on the medical information and so and whether it's sufficient or not you can't review that unless it's tied to an adverse action can you no your honor we cannot you correct but if i may briefly go back to b and i can explain where this wron action element comes from in being what we found eventually was addressing the unpleasant choice doctor and that the choice to either work outside of a medical stricture and or stay at home could not be involuntary and it couldn't be viewed as a meaningful choice forcing the employee to work outside medical research and seems to go beyond just saying it's unpleasant and seems to be putting too much of a burden on the employee but the only way to square that specific fact pattern with the rest of this court's precedent unconstructive suspensions and frankly the a b a is to examine whether or not the agency is choice to not provide work within the medical restrictions was wrongful right and that's why we should be considering this is an adverse action and asking whether the agency acted properly or improperly in that context rather than the jurisdictional fanta if you're correct you know but it's still because it starts as a voluntary abs that nicely and simply give you exactly what you want you can argue they're requiring the information was appropriate in so then that and therefore he was appropriately not allowed to return to work i believe that can lead him to be disciplined or excluded from the work lies then it becomes an adverse action and the question is whether the agency is the man with wrongful i believe in those scenarios you might take away the discretion of the agency to issue the adverse action itself the agency if an employee punches a supervisor rightfully or you know has the ability to decide whether or not they want to suspend the employee themselves and for some reason they don't want that needs to remain in their information why isn't that suspension because the employee was the one who initially stayed home it was his ability to return to work that's in question not whether or not he saw it on the view at the supervisor then that you got fired because you took a voluntary an adverse action it would depend on why the agency chose to not allow him to come back to work under the test that we apply from being we would look at whether or not it was correct in not allowing him to return if it turns out that the argument you happen to know whether where the parties are and the related terminations appeal at the odd was i think that there was and there shal age a decision reducing the second terminations to a thirty day and the voluntariness actually it wasn't dealing with the situation it was dealing with voluntary retirements or resignations in that situation you have to invoke the framework of constructive ruvell but i don't understand why in this particular context you have to invoke that front because in order to get to the merits you have to establish voluntariness that underlying merit i mean is that actually the question in order for the board to have jurisdiction there has to be an appeal for actually yes your honor that is the question in this case and there is no appealable adverse action because the opponent voluntarily absent it himself in the workplace by not meeting the condition of the agency to one set forth what his reason or more commendation would be he simply failed to answer the agency as to what hours he wanted to work isn't the key question of whether the court's precedent has a night answer my question is you entitled to a determination whether it was wrong for or not wrong if there is an adverse action you will get to the merits but not if it was voluntary but if that if you voluntarily refused to it's really a yes or no question not if he can and he is not entitled to determine whether or not there was a wrongful action if he cannot in the first place establish that his absence was involuntary the petitioners argument is you can never look at the two halley of the circumstances and in this case looking at the court's president you can look at the totality of the circumstances when determining whether or not there was an involuntary honor because he must first establish that that absence was involuntary and by making the choice not to submit the documentation or to choose to go on leave he voluntarily absent it himself and that he's the the jurisdiction that are of you agencies determinations of whether somebody is medically fit or not i have to disagree with my colleague i think your answer is no period that was the question yes or no looking at  the determination of whether the agency active long form because he says i'm not going to submit the information it's not proper that you ask for and i want to miss p v to determine whether that's correct or not and you're ago just to build on the hypothetical that you gave just wallach if you are instead of asking for medical information that is for religious information and he refused that choice that he has