Indefinite Suspension for Federal Employees – What It Means, When It Happens, and Your Rights

Quick Definition:
An indefinite suspension places a federal employee in a non-duty, non-pay status without a set end date, typically pending an investigation, medical determination, or security clearance action.

Indefinite suspensions are a unique and serious issue in federal employment law, particularly for positions requiring a security clearance. As a nationwide federal employment attorney, We regularly advise federal employees across the United States who have been proposed for an indefinite suspension due to clearance, criminal or medical-related issues.

These types of cases can place employees in professional and financial limbo for extended periods, often with limited due-process protections and unclear timelines for resolution. Legal counsel is important.

What Is an Indefinite Suspension in Federal Employment?

An indefinite suspension is considered a non-disciplinary adverse action used by federal agencies when an employee is deemed unable to perform the essential functions of their position.

Federal agencies may impose an indefinite suspension for one of three reasons and the suspension remains in place until the issue is resolved, with no defined end date.

From a federal employment attorney’s perspective, these actions are among the most disruptive and legally complex employment measures agencies can take.

When Agencies Use Indefinite Suspensions

Federal agencies generally use indefinite suspension in three major scenarios:

1. Criminal Investigations or Charges

If an agency has reasonable cause to believe an employee committed a crime that could lead to imprisonment, it may place the employee on indefinite suspension while the criminal matter is pending.

2. Medical or Fitness-for-Duty Concerns

An agency may suspend an employee if continued presence in the workplace could pose a danger due to medical issues — pending a fitness-for-duty determination.

3. Security Clearance Suspensions

If an employee’s access to classified information — essential to their job — is suspended or revoked, the agency may impose an indefinite suspension pending the clearance decision.

These situations must be supported by legitimate agency reasons and tied to the efficiency of the service, a legal standard in federal adverse actions.

Why Indefinite Suspensions Are Common in Federal Employment

Unlike private-sector employment, many federal positions require ongoing eligibility for access to classified or sensitive information. As a result, federal employees are uniquely vulnerable to indefinite suspensions tied to:

• Pending security clearance investigations

• Clearance suspensions or proposed revocations

• Adjudication delays

• Allegations that remain unresolved

Even when allegations are disputed or unproven, agencies often proceed with suspension based solely on clearance uncertainty.

Types of Indefinite Suspensions

Federal employees may be placed on:

✔ Indefinite Suspension With Pay

Often used when the agency temporarily removes an employee from duty but continues pay status, usually via a short memorandum.

✔ Indefinite Suspension Without Pay

More serious — requires formal notice and due process. It removes the employee from both duty and pay status until the triggering conditions are resolved.

Most concerns arise when the suspension is without pay, due to the financial impact on a federal employee.

How Indefinite Suspensions Differ From Other Federal Adverse Actions

Indefinite suspensions differ significantly from removals or fixed-term suspensions:

• No predetermined end date

• Often framed as non-disciplinary

• Frequently involve national security authority

• May limit MSPB appeal rights

Because clearance, criminal and medical issues frequently take months or years, indefinite suspensions can quietly become long-term employment separations.

Due Process and Legal Rights Under Federal Employment Law

Indefinite suspensions raise serious due-process concerns. While federal employees are entitled to procedural protections under civil service laws, agencies often argue that those protections are reduced when national security or clearance authority is invoked.

As nationwide federal employment attorneys, we routinely see agencies assert broad discretion even when:

• The underlying allegations are contested

• No final clearance decisions or criminal charges have been issued

• Employees are denied access to critical evidence

This makes early legal strategy essential.

Appealing an Indefinite Suspension

Federal employees may appeal an indefinite suspension to the Merit Systems Protection Board (MSPB). When doing so, they should understand:

• The agency must demonstrate that it had reasonable cause for the suspension.

• The suspension must promote the efficiency of the service and have an ascertainable condition that will end it.

If procedural due process was denied — for example, insufficient notice or an unclear basis — the MSPB may reverse or remand the action.

Additional guidance is available through the MSPB appeals process for federal employees.

The Real-World Impact on Federal Employees

Federal employees placed on indefinite suspension often experience:

• Extended loss of income

• Career stagnation or derailment

• Clearance damage affecting future employment

• Significant emotional and financial stress

Many employees assume the suspension will be short. In reality, clearance delays are common, and prolonged suspensions are the norm.

Why Federal Employees Nationwide Seek Legal Counsel Early

Federal employment law—and especially security clearance law—is highly specialized. Employees facing indefinite suspension benefit from early legal representation to:

• Protect procedural rights

• Shape the agency record

• Respond strategically to proposed actions

• Minimize long-term clearance damage

Waiting to seek counsel can significantly limit available options.

Frequently Asked Questions About Indefinite Suspensions

Is an indefinite suspension disciplinary?

No. Agencies typically characterize indefinite suspensions as non-disciplinary. However, the impact can be as severe as a removal.

Can an indefinite suspension last indefinitely?

Yes. There is no fixed time limit, and suspensions may last as long as the issue (clearance, criminal, medical) remains unresolved.

Can a federal employee be placed on indefinite suspension without pay?

Yes. An agency may impose an indefinite suspension without pay, but only after providing required due process, including advance notice, the opportunity to review evidence, and a chance to respond. These suspensions are considered adverse actions under federal regulations.

Will an indefinite suspension affect future federal employment?

It can. How the matter is handled may affect future clearance eligibility and federal job opportunities.

Protecting Your Federal Career

Indefinite suspensions sit at the heart of federal employment law. Federal employees across the country should not assume these matters will resolve quickly or without lasting consequences. For a more technical overview, see our resource page on indefinite suspension for federal employees.

Summary

Indefinite suspension for federal employees is a powerful administrative tool used in serious employment situations. They:

• Occur without a fixed end date and typically involve major adverse scenarios

• Must meet due process requirements under federal regulations

• Can be appealed through the MSPB with proper legal strategy

If you or a colleague are facing an indefinite suspension, it’s important to act quickly to protect your rights and career.

📞 Call (703) 668-0070 for a confidential consultation or click here.

Understanding and applying the Douglas factors in federal employee disciplinary cases are critical. Our federal employment law attorneys represent federal employees in disciplinary actions. Douglas factors play a critical role in federal employee defense. There are typically two parts to a federal employee’s disciplinary case: (1) whether the federal employee committed the offense(s) charged; and (2) if so, what should the penalty be? One of the most important issues in defending a federal employee in a disciplinary case involves arguing for mitigation of the penalty. Arguing for mitigation generally means that we argue for the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case.

What are the Douglas Factors?

The Douglas factors, in federal employee cases, are also referred to generally as mitigating factors.  These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981).

In Douglas, the Merit Systems Protection Board (MSPB) established 12 different factors that should be considered by a deciding official when evaluating the reasonableness of a disciplinary penalty for a federal employee. When our firm prepares an MSPB appeal for a federal employee client or in a case before a deciding official at the proposal stage it is important to understand all potential mitigating factors that might be applicable to a federal employee’s case. The Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. In sum, it is critical for federal employees to understand the Douglas factors or to have counsel that does.

The following is a list of 12 Douglas factors that should be taken under consideration if a disciplinary action is warranted with explanations as to how they can apply to a particular federal employee case.

The 12 Douglas Factors

(1) The nature and seriousness of the offense and its relation to the employee’s duties, position, and responsibilities including whether the offense was intentional, technical, or inadvertent; was committed maliciously or for gain; or was frequently repeated.

The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds.  This has often been considered one of the most important Douglas factors by the MSPB. For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a supervisory position.  The first Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (i.e. a repeat offense) and whether the misconduct at issue was intentional.  Generally, this Douglas factor one tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty in a given case.

(2) The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.

The second Douglas factor for federal employees involves the level of federal employee a case involves. It is traditionally used to attempt to aggravate a disciplinary penalty, as opposed to mitigate one. For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high-level supervisor, such as GS-15) or type of position (e.g., law enforcement) as an aggravating factor. Many agencies may attempt to overplay their hand with this Douglas factor, but the MSPB will typically assess a position based on their own evaluation in some cases.

(3) The employee’s past disciplinary record.

The third Douglas factor involves an evaluation of a federal employee’s past record. The use of a federal employee’s past disciplinary record is one of the more commonly cited Douglas factors.  We argue this Douglas factor in many cases. This factor is generally used for purposes of mitigation unless an employee has a past disciplinary action, which is cited.  Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty.

For instance, if the federal employee at issue has worked for the federal agency involved for 25 years and has never received prior discipline during that time this can be used as an argument in mitigating the disciplinary penalty. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Sometimes, this third Douglas factor may be confused by federal agencies who attempt to aggravate a disciplinary penalty by basing it on previous misconduct that is not similar to the current action.

(4) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.

The fourth Douglas factor is one of the most often used arguments we use in support of mitigation of a disciplinary penalty. Generally, this argument is used by a federal employee to support a reduction in penalty based on their good record of service to their agency (e.g. past performance). For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employee’s outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. Essentially, you are arguing that the proposed penalty should be mitigated based on having a good employment record.

It is important to argue Douglas factor four with supporting documentary evidence (e.g., commendations, awards, copies of performance records, letters of commendation, letters about performance by supervisors or members of the public, letters of support) as you move forward.

(5) The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties.

Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary actions to issue a more serious disciplinary penalty. This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time after the underlying allegation has occurred and been known.  The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing so that they must have been trustworthy.

(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses.

This Douglas factor comes into play when an agency picks and chooses different penalties for similar level federal employees. This occurs quite often. Usually the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by a federal agency between different federal employees.  However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty.  For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar.

(7) Consistency of the penalty with any applicable agency table of penalties.

Federal agencies may attempt to base a proposed or final penalty on an agency’s table of penalties. A federal agency’s table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses.  Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). We generally find that it is important to actually make sure that a proposed or a sustained final penalty has been listed appropriately under the agency’s table of penalties. On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table.

(8) The notoriety of the offense or its impact upon the reputation of the agency.

This Douglas factor generally involves how much the public has been advised of a federal employee’s alleged misconduct. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. Generally, this factor comes into play when a federal employee’s alleged misconduct has been reported by the media or in social media.  We have also seen federal agencies use this Douglas factor to aggravate disciplinary penalties where other agencies (federal, state, local) have become aware of a federal employee’s misconduct, arguing that the employee’s actions have caused the federal agency’s reputation to somehow become tarnished. It is important to rebut these issues in a Douglas factor defense.

(9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question.

The ninth Douglas factor is important and is used in many cases where the policy that has been allegedly violated is not clear. The “lack of clarity” argument refers to the rules governing the underlying allegations at issue.  Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency policy. It can often be the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations.

As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. For example, we might argue that the lack of a clear agency policy on Internet usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government resources.

(10) The potential for the employee’s rehabilitation.

The potential for an employee’s rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employee’s disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employee’s penalty. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor.

Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action.

(11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, or harassment; or bad faith, malice or provocation on the part of others involved in the matter.

This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Our firm often uses this Douglas factor to highlight personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee.

Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty.  Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. This is the most important Douglas factor for federal employees that we see.

(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

While not often used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty.

For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. In another example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. For this Douglas factor there are a number of ways in which to argue that a reduced penalty would serve the same purpose as something more serious (e.g. removal).

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Douglas factors are critical for federal employees defending against pending disciplinary actions or during the course of an MSPB appeal. As a result, it is very important for a federal employee to argue all relevant Douglas factors and provide documentary evidence (e.g. declarations, affidavits, performance ratings, SF-50s, letters of commendation) for the record.

Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. Mitigation of a removal penalty can often save a federal employee’s career and avoid termination or forced retirement.

Berry & Berry, PLLC represents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding Douglas factor and other federal employment issues.

The 2019 primaries and 2020 national elections are approaching soon. Our law firm often represents and defends federal employees in Hatch Act violation cases. The Hatch Act was meant to curtail partisan political involvement for federal employees. There are certain restrictions that prohibit certain political conduct, both on-duty and off-duty. As these elections approach, this article is meant to help federal employees avoid the problems of committing potential Hatch Act violations.  

What is the Hatch Act?

The Hatch Act was first proposed by Senator Carl Hatch of New Mexico and enacted in 1939 prohibiting certain types of political participation by federal employees. This can vary between types of federal employees. For most federal employees, however, the rules are similar.  Federal employees may not seek public office in partisan elections, use their official titles or authority when engaging in political activities, solicit or receive contributions for partisan political candidates or groups, and/or engage in political activity while on duty. Even some non-partisan elections can give rise to Hatch Act violations by federal employees if a candidate is sufficiently backed by a particular party.

Office of Special Counsel Enforcement for Hatch Act Violations

For most federal employees, the Hatch Act is enforced by the Office of Special Counsel (OSC). The OSC has the ability to seek disciplinary action against federal employees if violations are uncovered. Typically, violations are investigated following a complaint being filed with the OSC.  Federal employees can potentially be disciplined or terminated for violations of the Hatch Act.  Generally, the OSC will first conduct a detailed investigation into the allegations and then if violations are found they may then seek to negotiate a resolution with the alleged offender.

In other cases, the OSC may file inform the individual that they are simply moving ahead with a disciplinary action filing with the Merit Systems Protection Board (MSPB) against the employee (usually seeking removal) and ask an MSPB administrative judge to take action against the federal employee for at the violations.    

General Hatch Act Tips for Federal Employees 

Federal employees are encouraged to seek advice before engaging in political activities. There are many types of federal employees and some are more restricted than others. Here are 8 simple tips for federal employees seeking to avoid potential Hatch Act violations:

1.   Don’t run for office in a partisan political election;

2.   Avoid partisan political discussions while in the federal workplace or while performing work;

3.   Don’t try to raise funds for partisan political candidates in the workplace (even passing along website links for candidates to co-workers); 

4.   Don’t post political opinion or discussion during work hours on social media;

5.   Don’t donate to a political campaign during work hours; 

6.   Don’t bring political campaign signs or buttons into the federal workplace;

7.   Don’t use government resources (email, internet) to engage in partisan politics; and

8.   Don’t use your government title or affiliation to endorse a political candidate.

Federal employees can usually still participate in many political activities, but doing so at work can be a violation of the Hatch Act. Federal employees can sometimes be candidates for non-partisan elections, assist in voter registration drives, express political opinions, attend fundraisers, sign nominating petitions or hold office in political parties.

For further information on potential Hatch Act violations, please see the information offered by the OSC. While it is doubtful that brief discussions about politics in the federal workplace would trigger an OSC investigation, the potential risk is there. The safest course for federal employees is to simply avoid partisan politics in the workplace and save them for off-duty.  

Conclusion

If you need assistance with Hatch Act defense or other federal employment law issues, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.