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.
We represent federal employees in Merit Systems Protection Board (MSPB) appeals. In other articles we go into more depth about various individual aspects of the MSPB appeals process, but this article focuses on a general summary of what to expect during the MSPB appeals process. There are sometimes some differences between appeals, but for the most part the major parts of the appeals process follow below.
A. Filing the MSPB Appeal
The first step in the MSPB appeals process is for a federal employee to file a MSPB appeal over an action that they have plan to challenge. In most cases, the MSPB hears cases involving serious discipline (i.e. removal; suspensions over 14 days, demotions). There are deadlines for filing an MSPB appeal and it is fairly strict. Typically, a federal employee has 30 days from the effective date of the adverse (the discipline) action to file an appeal. The MSPB appeals process has mostly transitioned to electronic filing so it is much more efficient to file the appeal electronically. It is very important to timely file the appeal and to even file it early given that an untimely appeal will likely be dismissed.
B. Receipt of the Acknowledgment Order
Usually, within 1-2 weeks of filing the MSPB Appeal, a judge will be assigned and issue an Acknowledgment Order which basically sets the ground rules and timelines in each case. This order is usually about 12-5 pages in length (depending on the specific issues in the case) and provides a significant amount of information about the processing of the individual MSPB appeal. After receiving the Acknowledgment Order it is very important to calendar all of the deadlines in the case.
C. Filing of the Agency File and Narrative Response
Typically, 20 days after the issuance of the Acknowledgment Order, the MSPB Administrative Judge assigned to the case will require the federal agency involved in the appeal to provide their agency file on the case to the MSPB and to the Appellant. This file will include the documents relevant to the federal agency’s case and also their initial summary response to the Appellant’s appeal. It is not uncommon for a federal agency’s file to be 50 to 300 pages long, depending on the number of documents associated with the case.
D. Holding of a Status Conference
Not all of administrative judges conduct these, but we have found that most administrative judges will schedule a status conference following the receipt of the Agency File and sometimes even before. The general substance of these status conferences involve an initial discussion of the issues involved in the appeal and also potential settlement negotiations. It is often the case that an administrative judge will attempt to move the parties towards talking settlement as early as possible. A status conference may lead to mediation or other alternative dispute resolution efforts.
E. The Discovery Process
MSPB appeals are much like civil litigation cases, except on a quicker timeline. A part of the MSPB appeals process will involve discovery. Usually, 30 days after the issuance of the Acknowledgment Order, the parties are required to submit their initial discovery requests if they choose to engage in discovery. The discovery stage is very important as it is the Appellant’s (federal employee’s) chance to obtain documents, reports, statements, correspondence, emails, video, audio which the Agency possesses and which could be used during the hearing in defense of the action.
One of the most significant parts of the discovery process includes the ability to question, under oath, key witnesses by taking their depositions. Depositions can help get to the specific facts that may not have been uncovered earlier. For instance, if a federal employee has been accused and removed for allegedly threatening another employee in front of others, it is important to depose the other employees that witnessed the events.
F. Requesting a Case Suspension
At any point in the MSPB appeals process, often during discovery or when settlement talks are ongoing, a case suspension might be proposed by a party. A case suspension essentially freezes the MSPB litigation so that parties can complete certain tasks, such as completing discovery or to engaging in settlement talks or mediation. A case suspension can last up to 30 days and if needed a second one case be requested. Case suspensions are at the discretion of the Administrative Judge.
Case suspensions can be important when more time is needed to work out a settlement agreement or to finish taking depositions of other relevant witnesses.
G. Affirmative Defense Filings
When MSPB appeals involve certain types of defenses, such as discrimination claims, whistleblower defenses or military discrimination (USERRA) claims, an administrative judge is likely to order the Appellant to prepare a summary of their arguments for these issues. The Agency will have the opportunity to respond to such arguments with their own take on these types of defenses.
H. Pre-Hearing Submission
Prior to the MSPB hearing, the Administrative Judge will order pre-hearing submissions from each party. These generally include the parties’ versions of the issues to be heard, the documents to be used as exhibits in the case and proposed witnesses for the case. It is important to include the details behind the relevance for each witness and document. Generally, administrative judges (for most cases) will permit 5-9 witnesses in a case. Administrative judges vary on the admission of witnesses, so an appellant or their counsel must be prepared to argue for the relevance of their witnesses at the pre-hearing conference.
I. Pre-Hearing Conference
The next step prior to the MSPB hearing involves the actual pre-hearing conference. During the conference, the Administrative Judge will review both parties pre-hearing submissions and rule on witnesses, exhibits and other potential issues likely to come up at the hearing. As mentioned above, each party will want to be prepared to argue for their position during the pre-hearing conference. Typically, the majority of the pre-hearing conference will be used to argue that certain witnesses be required to attend and to provide a basis to the judge for their relevance. For exhibits, administrative judges vary on whether they will admit exhibits during the conference or defer to the hearing for such decisions.
J. The MSPB Hearing
The MSPB hearing typically takes about 1-2 days depending on the number of witnesses involved and the complexity of the case. During the hearing, there will usually be opening statements by both parties of 5 to 15 minutes. Following opening statements, there will be the examination and cross-examination of witnesses for both sides. In disciplinary cases, the Agency will typically put on their case first as the federal agency bears the burden of proof. It is usually the practice of administrative judges that if both parties call the same witness that both parties examine the witness at that time. In other words, if the Appellant is called by the Agency, then the Appellant’s attorney would conduct their examination of Appellant right after the Agency has done so. This procedure can vary. After the Agency puts on their witnesses, the Appellant will be allowed to do the same.
A court reporter will transcribe all of the testimony given and the MSPB will make the CD of testimony available to both sides following the hearing. Finally, there may be closing arguments and/or written closing submissions prior to the end of the hearing. In most cases, closing arguments are completed by both parties after the end of testimony as opposed to in written briefs. After the hearing, the Administrative Judge will then issues a written decision usually completed 3-6 weeks after a hearing is held.
K. Filing an Appeal of an Adverse MSPB Decision
Should an MSPB Administrative Judge issue an adverse decision, either party can file an appeal known as a Petition for Review (PFR) usually within 35 days of receipt of the decision. The are specific grounds for an appeal to the full Board of the MSPB, such as errors involving facts and conclusions of law. The legal basis for granting an MSPB appeal falls under 5 U.S.C. § 7701(c)(2). The appealing party can win an appeal if they are able to show:
(A) harmful error in the application of the agency’s procedures in arriving at such decision;
(B) that the decision was based on any prohibited personnel practice described in 5 U.S.C. § 2302(b); or
(C) that the decision was not in accordance with law.
Generally, such appeals can take 8 months to a year, to obtain a decision following the filing of a PFR so long as the Board has a quorum (at least 2 members). If the PFR is affirmed, other appeals options are available to the parties.
Contact Us
In sum, when filing an MSPB appeal, it is very important to retain legal counsel familiar with the MSPB to assist you. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.
