The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAYLOR M. SHARPE, DOCKET NUMBER
Appellant, DA-0752-14-0034-I-1
v.
ENVIRONMENTAL PROTECTION DATE: February 27, 2015
AGENCY,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Jeff Letts, Trenton, New Jersey, for the appellant.
Sherry Lynn Brown-Wilson, Dallas, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s indefinite suspension. Generally, we grant petitions
such as this one only when: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
or regulation or the erroneous application of the law to the facts of the case; the
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b). As explained below, however, we find that the appellant has also
challenged the continuation of his indefinite suspension, and we FORWARD the
appellant’s challenge of that action to the regional office for adjudication.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency issued the appellant a notice of proposed indefinite suspension
based upon his arrest for alleged violations of the terms of his probation. Initial
Appeal File (IAF), Tab 4, Subtab 4g. In proposing its adverse action, the agency
cited the appellant’s arrest, arraignment, and detention on charges that he
committed several probation violations, and it proposed to effectuate his
indefinite suspension on less than 30 days’ notice pursuant
to 5 U.S.C. § 7513(b)(1) citing its reasonable belief that the appellant had
committed a crime for which a sentence of imprisonment could be imposed. Id.
The appellant submitted a written response, and the deciding official
subsequently issued a letter of decision imposing the appellant’s indefinite
suspension. Id., Subtabs 4b (letter of decision) and 4e (written reply). Pursuant
to 5 U.S.C. § 7513(b)(1), the agency imposed the appellant’s indefinite
3
suspension less than 30 days after first proposing to take the action. Id.,
Subtabs 4b and 4g.
¶3 The appellant filed an appeal of his indefinite suspension arguing, among
other things, that the agency erred in imposing the indefinite suspension
under 5 U.S.C. § 7513(b) because an alleged violation of probation is not a
criminal offense under Texas law. MSPB Docket No. DA-0752-14-0187-I-1,
Initial Appeal File (IAF-0187), Tab 13 at 2-3. Following a hearing, the
administrative judge sustained the appellant’s indefinite suspension, finding that
the agency had reasonable cause to believe the appellant had committed a crime
for which a sentence of imprisonment could be imposed. IAF, Tab 19, Initial
Decision (ID) at 10. The appellant has filed a petition for review arguing that the
administrative judge should not have sustained his indefinite suspension, and that
he also failed to address whether the agency impermissibly continued his
indefinite suspension after it learned that the charges against him were dismissed
and he was discharged from probation. Petition for Review (PFR) File, Tab 1 at
4-7, 11. The agency has filed a response in opposition. PFR File, Tab 2.
The administrative judge properly sustained the appellant’s indefinite suspension.
¶4 To sustain an indefinite suspension, the agency must show that: (1) it
imposed the suspension for an authorized reason; (2) the suspension has an
ascertainable end, i.e., a determinable condition subsequent that will bring the
suspension to a conclusion; (3) the suspension bears a nexus to the efficiency of
the service; and (4) the penalty is reasonable. Hernandez v. Department of the
Navy, 120 M.S.P.R. 14, ¶ 6 (2013). Among the authorized reasons for imposing
an indefinite suspension is an agency’s reasonable belief that an employee has
committed a crime for which a sentence of imprisonment could be imposed. Id.;
Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318, ¶ 13 (2010)
(listing the three circumstances which the Board and the Federal Circuit have
approved for imposing an indefinite suspension). Like all adverse actions under
4
chapter 75, an agency’s proposed indefinite suspension must comport with the
requirements of 5 U.S.C. § 7513, including 30 days’ advanced written notice, an
opportunity to respond, notice of the right to be represented, and a written
decision explaining the basis for taking the action. See Harding v. Department of
Veterans Affairs, 115 M.S.P.R. 284, ¶ 19 (2010), aff’d, 451 F. App’x 947 (Fed.
Cir. 2011); see also 5 U.S.C. § 7513(b)(1)-(4). An agency, however, may impose
an adverse action, including an indefinite suspension, on less than 30 days’ notice
if it demonstrates that it had reasonable cause to believe the appellant committed
a crime for which a sentence of imprisonment could be imposed. See Perez v.
Department of Justice, 480 F.3d 1309, 1311-12 (Fed. Cir. 2007); see
also 5 U.S.C. § 7513(b)(1); 5 C.F.R. § 752.404(d).
¶5 Here, because the agency imposed the appellant’s indefinite suspension on
less than 30 days’ notice, the agency must not only establish by a preponderance
of the evidence that it had a valid basis for taking the action, but that it also
properly effectuated its action under 5 U.S.C. § 7513(b)(1) on a shortened notice
period. See Harding, 115 M.S.P.R. 284, ¶¶ 13-22. The administrative judge
found that the agency established both showings and upon a review of the record,
we agree.
¶6 First, we concur with the administrative judge that the agency had a valid
basis for invoking the crime exception under 5 U.S.C. § 7513(b) and proposing to
indefinitely suspend the appellant on less than 30 days’ notice based on his arrest
and arraignment on charges of violating his probation. ID at 4-10. The Board
has held that the standard for imposing an indefinite suspension is not whether the
agency could prevail on the criminal charge but, rather, whether it had a
reasonable belief that the appellant committed a crime punishable by a term of
imprisonment when it imposed the suspension. See Dalton v. Department of
Justice, 66 M.S.P.R. 429, 435-36 (1995). When the agency imposed the
appellant’s suspension, the agency had before it information that the appellant
had previously been charged with a second degree felony, that he entered into a
5
deferred prosecution agreement and had been placed on probation, that he had
recently been arrested on charges that he violated the terms of his probation, and
that he could be sentenced to a term of imprisonment based upon his violation of
probation. IAF, Tab 4, Subtabs 4b and 4g. The Board has previously found that
an appellant’s arrest on charges of probation violations, coupled with the
knowledge of the appellant’s prior criminal history, can establish reasonable
cause for taking an adverse action on less than 30 days’ notice under section
7513(b)(1). See Cox v. Department of Health & Human Services, 21 M.S.P.R.
336, 338 (1984), aff’d, 765 F.2d 159 (Fed. Cir. 1985) (Table). Thus, because the
appellant’s original criminal charges remained outstanding and because he could
have been imprisoned based upon his alleged probation violations, the agency had
proper grounds to invoke the shortened notice period of section 7513(b)(1) when
it imposed his indefinite suspension. 2 See id.; see also Camaj v. Department of
Homeland Security, 119 M.S.P.R. 95, ¶¶ 9-10 (2012).
¶7 For the same reasons, we also find that the agency established a valid basis
for imposing the appellant’s indefinite suspension based on his arrest on charges
of violating his probation, and that the indefinite suspension had a determinable
condition subsequent triggering the end of the suspension. ID at 10-13; see
Hernandez, 120 M.S.P.R. 14, ¶ 6 (one of the authorized circumstances for an
indefinite suspension is reasonable cause to believe the employee has committed
a crime for which a sentence of imprisonment could be imposed); IAF, Tab 4,
Subtab 4b (letter of decision explaining condition subsequent which would end
the indefinite suspension). We further find that the agency established a nexus
between the appellant’s arrest and the efficiency of the agency’s mission,
including a loss of trust and confidence in the appellant’s abilities to perform the
functions of his position, and that the agency’s selected penalty is reasonable.
2
The appellant’s argument that violation of probation proceedings are administrative,
rather than criminal, in nature does not alter our analysis. See Cox, 21 M.S.P.R. at 338;
see also PFR File, Tab 1 at 5.
6
See Harding, 115 M.S.P.R. 284, ¶ 21; see also IAF, Tab 4, Subtab 4b at 4-6
(Douglas factors) and 4g (notice of proposed enforced leave citing loss of
confidence in appellant). Therefore, the administrative judge’s initial decision
sustaining the appellant’s indefinite suspension based on his arrest on charges of
violating his probation is AFFIRMED.
We FORWARD the appellant’s challenge to the continuation of his indefinite
suspension to the regional office for docketing.
¶8 On review, the appellant also argues that the administrative judge failed to
adjudicate his challenge to the agency’s continuation of his indefinite suspension
beyond the date on which the violation of probation proceedings were dismissed
and he was discharged from probation. PFR File, Tab 1 at 11-12; IAF, Tab 4,
Subtab 4b (specified condition subsequent is the “final disposition of your
criminal proceedings . . . and/or any subsequent agency action following the
conclusion of those criminal proceedings”). The Federal Circuit has held that
there are two different types of Board appeals that may arise from the imposition
of an indefinite suspension: one, an inquiry into the propriety of the agency’s
imposition of the indefinite suspension—which is addressed above; and two, an
inquiry into whether the agency failed to timely terminate an indefinite
suspension upon the satisfaction of the condition subsequent. See Sanchez v.
Department of Energy, 117 M.S.P.R. 155, ¶ 9 n.2 (2011); see also Lemons v.
Department of the Army, 111 M.S.P.R. 178, ¶ 9 (2009). The Board has
jurisdiction to determine whether the condition subsequent has occurred. Albo v.
U.S. Postal Service, 104 M.S.P.R. 166, ¶ 7 (2006).
¶9 The record below reflects that after being arrested and arraigned on charges
of violating his probation, the appellant moved to dismiss those proceedings, and
the judge assigned to the matter entered an order on November 1, 2013,
dismissing the proceedings and terminating the appellant’s period of probation.
See IAF-0187, Tab 13, Exhibit A. The agency, however, did not return the
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appellant to a paid status until November 20, 2013. 3 PFR File, Tab 2 at 7.
Despite the appellant raising this issue in his prehearing submission, see
IAF-0187, Tab 13 at 3, the administrative judge did not include it among the
issues to be adjudicated in his prehearing conference summary and order, and he
did not include an explanation for its omission, see IAF, Tab 18 at 2. 4 Because
our reviewing court has made clear that the initiation and the continuation of an
indefinite suspension are separate appealable actions, and because an appellant
has a right to a hearing on an appealable adverse action, we FORWARD this
claim to the regional office for docketing as a separate appeal. See
Lemons, 111 M.S.P.R. 178, ¶¶ 9-11 (forwarding the appellant’s claims regarding
the continuation of his indefinite suspension to the regional office for
adjudication); see also Shields v. U.S. Postal Service, 19 M.S.P.R. 546, 549
(1984) (an appellant has a right to a hearing under 5 U.S.C. § 7701(a)(1)). 5
3
We have been unable to locate in the record any evidence demonstrating that the
appellant was returned to duty on this date other than the agency representative’s
statement that this happened. PFR File, Tab 2 at 7. The statement of a party’s
representative, however, is not evidence. Marcantel v. Department of Energy,
121 M.S.P.R. 330, ¶ 6 n.1 (2014). We leave it to the admin istrative judge to determ ine
in the first instance the exact date on which the appellant was returned to a paid status.
4
While the appellant raised the issue of the continuation of his indefinite suspension in
the context of a responsive pleading, and not on his initial appeal form, the
administrative judge’s failure to address this issue still constituted error. See Coats v.
U.S. Postal Service, 111 M.S.P.R. 268, ¶¶ 15 (2009) (where the appellant raised an
invo luntary resignation claim before the administrative judge in a responsive plead ing,
the Board found that the administrative judge should have provided the appellant with
Burgess notice over this claim and forwarded it for docketing as a separate appeal); see
also Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (an
in itial decision must identify all material issues of fact and law, summarize the
evidence, resolve issues of credibility, and include the administrative judge’s
conclusions of law and his legal reasoning, as well as the authorities on which that
reasoning rests).
5
The appellant filed a separate appeal challenging his removal. See MSPB Docket No.
DA-0752-14-0187-I-1. On January 20, 2015, the parties filed a settlement agreement
with the Board in that appeal. See id.; see also PFR File, Tab 4. The parties have
submitted a joint stipulation clarifying that the appellant had no intention of
withdrawing or dismissing the instant appeal pursuant to the settlement agreement.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
PFR File, Tab 4 at 2, 4. The parties also acknowledged that the appellant has a pending
appeal of a furlough action, identified under MSPB Docket No. DA-0752-13-2614-I-1,
and MSPB consolidation Docket No. CCAD ARX6-3/DA-0752-14-0379-I-1, and that
the appellant had no intention of withdrawing or dismissing that appeal as part of the
settlement agreement. PFR File, Tab 4 at 3, 5.
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attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.