Indefinite Suspensions for Federal Employees
Federal employees can be placed on indefinite suspension either with or without pay for disciplinary reasons or other reasons pending investigation, inquiry, or further agency action. We represent federal employees in indefinite suspension cases. When facing a proposed indefinite suspension it is important to have legal counsel. Federal employment lawyers are best suited to handle these types of cases.
Basis for Indefinite Suspensions
The use of indefinite suspensions for federal employees is generally limited to three types of situations. These include situations where:
(1) The federal employee is facing potential criminal charges
(2) A federal agency has a legitimate concern that an employee’s medical issues could make the workplace dangerous
(3) A federal employee’s security clearance has been suspended
When one of these three situations applies, it is important to obtain an attorney familiar with the indefinite suspension process for legal advice or representation.
Two Types of Indefinite Suspensions
There are generally two types of indefinite suspensions: with pay or without pay. Although federal employees need to be concerned with both types, the more urgent situation involves an indefinite suspension that is proposed without pay. Indefinite suspensions with pay are generally issued to a federal employee in short memorandum form. Proposed indefinite suspensions involving a loss of pay must follow a due process format.
Pursuant to OPM regulations, at 5 C.F.R. § 752.402 Definitions, an “indefinite suspension” that is issued to a federal employee is defined as follows:
[T]he placing of an employee in a temporary status without duties and pay pending investigation, inquiry, or further agency action. The indefinite suspension continues for an indeterminate period of time and ends with the occurrence of the pending conditions set forth in the notice of action which may include the completion of any subsequent administrative action.
Agencies have more recently moved to using indefinite suspensions without pay more often than letting them remain in a pay status.
The Start of the Indefinite Suspension Process
A significant issue arises when a federal employee is informed that he or she must leave work because he or she is being placed on suspension, and an agency supervisor then issues the employee a proposed indefinite suspension action. If this is the case, the federal employee should review 5 C.F.R. § 752.404. Procedures, which governs the process and requires the employer to give the employee a number of rights, as specified by the U.S. Office of Personnel Management (OPM):
(a) Statutory entitlements. An employee against whom action is proposed under this subpart is entitled to the procedures provided in 5 U.S.C. § 7513(b).
(b) Notice of proposed action. (1) An employee against whom an action is proposed is entitled to at least 30 days’ advance written notice unless there is an exception pursuant to paragraph (d) of this section. The notice must state the specific reason(s) for the proposed action, and inform the employee of his or her right to review the material which is relied on to support the reasons for action given in the notice.
What Happens Next?
Under ordinary circumstances, an employee whose removal or suspension, including indefinite suspension, has been proposed shall remain in a duty status in his or her regular position during the advance notice period. In those rare circumstances where the agency determines that the employee’s continued presence in the workplace during the notice period may pose a threat to the employee or others, result in loss of or damage to Government property, or otherwise jeopardize legitimate Government interests, the agency may elect one or a combination of the following alternatives:
- Assigning the employee to duties where he or she is no longer a threat to safety, the agency mission, or to Government property;
- Allowing the employee to take leave, or carrying him or her in an appropriate leave status (annual, sick, leave without pay, or absence without leave) if the employee has absented himself or herself from the worksite without requesting leave;
- Curtailing the notice period when the agency can invoke the provisions of paragraph (d)(1) of this section; or
- Placing the employee in a paid, nonduty status for such time as is necessary to effect the action.
Indefinite Suspension Appeals
If a federal agency places an employee on indefinite suspension, and the employee appeals the indefinite suspension to the Merit Systems Protection Board (“MSPB” or “Board”), the action can be difficult to reverse. In order for the Board to sustain an indefinite suspension where the issue involves a criminal charge, the agency must establish a preponderance of the evidence (51%) that it had reasonable cause to believe the employee committed a crime for which imprisonment may be imposed. In addition, the agency must prove that the suspension would promote the efficiency of the service.
How Do Agencies Uphold Indefinite Suspensions
In order to show that a suspension promotes the efficiency of the service, the agency must establish a nexus between petitioner’s alleged acts of misconduct and the employee’s job responsibilities. See Dunnington v. Department of Justice, 956 F.2d 1151, 1155 (Fed.Cir.1992); and Brown v. FAA, 735 F.2d 543, 548 (Fed.Cir.1984). An indefinite suspension will be viewed as appropriate where the agency has evidence of alleged misconduct, based on a government investigation. See Dunnington, 956 F.2d at 1157 (an indictment following an investigation and grand jury proceedings would provide, absent special circumstances, more than enough evidence of possible misconduct to meet the threshold requirement of reasonable cause to suspend.); and Martin v. Dep’t of Treasury, 10 MSPB 568, 12 M.S.P.R. 12, 19 (1982) (grand jury indictment was sufficient to show there was a reasonable cause to believe an employee has committed a crime for which imprisonment could be imposed).
In cases where an indefinite suspension is related to a suspension of a security clearance, the MSPB will reverse an indefinite suspension in only very limited circumstances. The MSPB will not review the merits of the security clearance suspension. Capulong v. Dep’t of Homeland Sec., 2024 MSPB LEXIS 6135. The MSPB has held that they may reverse an indefinite suspension if a federal employee is able to prove harmful procedural error not related to the underlying security clearance.
In terms of the efficiency of the service requirement, federal agencies tend to receive significant deference with such factors as bad media coverage, the prominence of a government employee, the misuse of government property or resources to engage in misconduct, etc., that will usually suffice to demonstrate the nexus requirement.
Issues Following a Decision to Indefinitely Suspend an Employee
A number of other issues may surface when an indefinite suspension decision is made. Often times, the federal employee appeals the indefinite suspension issue to the MSPB.
Due Process Issues
One of the potential issues in reversing an indefinite suspension without pay involves a failure by the federal agency to provide due process. Due process requires that a notice of charges against the federal employee be sufficiently detailed to give the employee a meaningful opportunity to be heard. See Mason v. Dep’t of the Navy, 70 M.S.P.R. 584, 586 (1996). In analyzing such an issue, the Board examines whether lack of specificity in the notice detrimentally affected the appellant. See Dawson v. Dep’t of Agriculture, 2013 MSPB Lexis 1233 (2013) (the agency’s failure to give the appellant prior notice of the specific reason for his indefinite suspension, i.e., reasonable cause to believe he committed a crime, abridged his constitutional right to minimum due process of law.).
Harmful Error Issues
Another potential issue in indefinite suspension cases involves an agency’s failure to expressly state the condition subsequent to returning the individual back to duty in its notice of indefinite suspension. The courts and the MSPB have ruled that this issue is subject to the harmless error rule. See Johnson v. USPS., 37 M.S.P.R. 388, 393 (July 19, 1988) (concluding that “the agency’s delay in identifying the condition that will terminate the indefinite suspension does not constitute harmful error warranting reversal of the action”). To be valid, an indefinite suspension must have an ascertainable end, that is, a determinable condition subsequent that will bring the suspension to a conclusion. See Cooper v. DHHS, 80 M.S.P.R. 612 (1999). An indefinite suspension may extend through the completion of both a pending investigation and any subsequent administrative action. See 5 C.F.R. § 752.402 Definitions.
Reasonable Conclusion of Indefinite Suspension
When the issues that brought about the indefinite suspension are resolved the agency must be reasonably quick to end the indefinite suspension. See Engdahl v. Department of the Navy, 900 F.2d 1572, 1578 (Fed. Cir. 1990); and See Campbell v. Defense Logistics Agency, 31 M.S.P.R. 691, 693, 695 (1986) (where the appellant’s indefinite suspension was based on an indictment, the agency acted reasonably by proposing the appellant’s removal nine days after it learned of the appellant’s guilty plea and continuing the indefinite suspension until the effective date of the appellant’s removal), aff’d, 833 F.2d 1024 (Fed. Cir. 1987) (Table).
Agencies are not allowed, when the issue is resolved, to take unlimited amounts of time to restore a federal employee to duty. See Martin v. Department of the Treasury, U.S. Customs Service, 12 M.S.P.R. 12, 17, 20 (1982), aff’d in part, rev’d in part on other grounds sub nom. Brown v. Department of Justice, 715 F.2d 662 (D.C. Cir. 1983).
Contact Us
Consult a federal employment attorney if you are proposed for an indefinite suspension. Berry & Berry, PLLC represents federal employees in responses to proposed indefinite suspension cases. Contact us by telephone at (703) 668-0070 or at www.berrylegal.com to schedule an initial consultation regarding your federal employment issues.
