Ernest Graham v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ERNEST C. GRAHAM, DOCKET NUMBER

Appellant, DC-0752-16-0889-I-1

v.

DEPARTMENT OF THE NAVY, DATE: July 27, 2023

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Brian C. Plitt, Esquire, Washington, D.C., for the appellant.

Nikki Greenberg, Washington Naval Yard, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed his indefinite suspension. For the reasons discussed below, we GRANT

the appellant’s petition for review, VACATE the initial decision, and REMAND

this appeal to the regional office for adjudication of whether the agency

1

A nonprecedential order is one that the Board has determined does not add

significantly 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 Parties may cite nonprecedential orders,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

improperly continued the appellant’s indefinite suspension in accordance with

this Remand Order.

BACKGROUND

¶2 The appellant was employed by the agency as a Utility Systems Repair

Operator at the Washington Navy Yard in Washington, D.C. Initial Appeal File

(IAF), Tab 1 at 6, Tab 4 at 51. On April 18, 2016, a coworker of the appellant’s

and his supervisor reported to the agency that in March and April 2016,

the appellant threatened to kill them and others. IAF, Tab 4 at 55-56,

Tab 19 at 2. The U.S. Attorney’s Office for the District of Columbia pressed

charges against the appellant in D.C. Superior Court based on the comments he

made on April 18, 2016. IAF, Tab 4 at 42, 58-59.

¶3 On June 28, 2016, the agency proposed the appellant’s indefinite suspension

based on reasonable cause to believe he committed a crime for which

imprisonment might be imposed. Id. at 51-53. The agency informed the

appellant that the suspension would continue until “(1) completion of any

criminal proceeding against [him] or a final determination of the investigation

into [his] alleged wrongdoing and (2) completion of any subsequent

administrative action taken against [him].” Id. at 52. The agency enclosed a

copy of the materials upon which it relied in deciding to propose the appellant’s

indefinite suspension. Id. at 51. Those materials included the criminal complaint

and warrant for the appellant’s arrest, two affidavits in support of the arrest

warrant, and an email from an Assistant United States Attorney indicating the

appellant was being prosecuted for attempted threats which carried a maximum

penalty of 180 days in jail and $1,000 in fines. Id. at 51, 54-56, 59. After the

appellant responded to the notice of proposed in definite suspension on

July 12, 2016, the agency issued its decision on August 15, 2016, informing him

that he would be suspended indefinitely, effective the close of business on

August 12, 2016. Id. at 17-30.

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¶4 The appellant was acquitted of all criminal charges on

November 21, 2016. IAF, Tab 16 at 22-37. On December 8, 2016, the agency

proposed his removal for sleeping on duty, falsification of log sheets, and

inappropriate comments based on comments with which he had been criminally

charged. IAF, Tab 4 at 27-28, Tab 19. It provided the appellant with 25 days to

respond to the proposed removal. IAF, Tab 19 at 4. Due to a request for an

extension from the appellant’s representative, the appellant did not provide his

oral and written reply until February 2, 2017. IAF, Tab 16 at 73-78; Tab 18,

Hearing Recording Audio 2 of 3 at 1:36:10-1:39:10 (testimony of the appellant).

On May 4, 2017, the agency issued its decision removing the

appellant from service. Graham v. Department of the Navy, MSPB Docket No.

DC-0752-17-0577-I-1, Initial Appeal File (0577 IAF), Tab 3 at 19-33.

¶5 The appellant filed the instant appeal, in which he challenged his indefinite

suspension of more than 14 days. 2 IAF, Tab 1 at 6-9. Specifically, he alleged

that the agency lacked reasonable cause to believe he had committed a crime, the

penalty of a suspension was excessive, and he had been subject to unlawful

discrimination and reprisal for prior Equal Employment Opportunity (EEO)

activity. IAF, Tab 1 at 8-9, Tab 17 at 2-3. The administrative judge conducted a

hearing. IAF, Tab 18. In an initial decision, he found that the agency had

reasonable cause to believe the appellant had committed a crime for which

imprisonment may be imposed, the indefinite suspension had an ascertai nable

end, the agency had established nexus, and the indefinite suspension was a

reasonable penalty. IAF, Tab 21, Initial Decision (ID) at 4-7. The administrative

judge also found that the appellant did not prove that his indefinite suspension

was based on race or age discrimination, or in retaliation for EEO activity.

ID at 8-11. The administrative judge therefore affirmed the agency’s indefinite

suspension decision. ID at 11.

2

The removal is the subject of a separate appeal currently pending before the Board on

review. 0577 IAF, Tab 1 at 2, Tab 22, Initial Decision at 1, 8.

4

¶6 The appellant has filed a timely petition for review. Petition for Review

(PFR) File, Tab 1. On review, the appellant argues that the administrative judge

erred in finding the agency was justified in issuing the indefinite suspension as

the ruling was based on the erroneous belief that the appellant was criminally

charged with “Threatening to Injure and Kidnap a Person.” Id. at 10. He disputes

that the agency had reasonable cause to believe he committed a crime punishable

by imprisonment. Id. at 7-8, 10. Finally, he reiterates his claim from below that

the indefinite suspension should have ended when he was acquitted on all

charges. Id. at 11-14. The agency has filed a response in opposition to the

petition for review. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly sustained the imposition of the indefinite

suspension.

¶7 To establish that an indefinite suspension is valid, the agency must show the

following: (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. Henderson v.

Department of Veterans Affairs, 123 M.S.P.R. 536, ¶ 5 (2016), aff’d, 878 F.3d

1044 (Fed. Cir. 2017). One of the authorized circumstances for imposing

an indefinite suspension is when the agency has reasonable cause to believe

an employee has committed a crime for which a sentence of imprison ment could

be imposed. Id. Here, the parties do not challenge the administrative judge’s

findings as to the nexus or penalty, and we discern no basis to disturb them.

The administrative judge made a proper reasonable cause

determination.

¶8 As noted above, an agency may indefinitely suspend an employee if it has

reasonable cause to believe that he has committed a crime for which a sentence of

imprisonment could be imposed. Henderson, 123 M.S.P.R. 536, ¶ 5. The

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administrative judge determined that the appellant’s arrest , followed by the

criminal information, established reasonable cause. ID at 5. The appellant

appears to dispute this finding, arguing on review that the arrest alone was

insufficient. PFR File, Tab 1 at 8. His argument misconstrues the administrative

judge’s reasoning and is not persuasive.

¶9 The Board has held that “reasonable cause” in the context of an indef inite

suspension based on possible criminal misconduct is virtually synonymous with

“probable cause,” which is necessary to support a grand jury indictment, i.e.,

probable cause to believe that a crime has been committed and that the accused

has probably committed it. Henderson, 123 M.S.P.R. 536, ¶ 7. In Dunnington v.

Department of Justice, 956 F.2d 1151 (Fed. Cir. 1992), the U.S. Court of Appeals

for the Federal Circuit addressed the issue of what constitutes “reasonable cause”

in the context of an indefinite suspension. The court stated that neither an arrest

warrant alone, nor an actual arrest, is sufficient. Dunnington, 956 F.2d at 1157.

On the other hand, “a formal judicial determination made following a preliminary

hearing, or an indictment following an investigation and grand jury proceedings”

is more than sufficient. Id. “[T]he best evidence of reasonable cause will be that

determined by the agency after an appropriate investigation of the facts and

circumstances of the alleged misconduct.” Id. An arrest warrant combined with a

criminal complaint supported by witness statements may support a determination

of reasonable cause if the documents provide sufficient information from which

the agency can “assure itself that the surrounding facts are suf ficient to justify”

indefinitely suspending the appellant without conducting its own investigation. 3

Id. at 1156-58.

3

To the extent the appellant suggests that the agency’s reasonable cause determination

was “proven to be false” by his acquittal, we are not persuaded. PFR File, Tab 1 at 6.

Because indefinite suspensions are taken for the purpose of allowing examination of

misconduct, and not as a punishment for misconduct, the fact that the appellant was

acquitted does not prove that the suspension itself was improper. Novak v. Department

6

¶10 In this case, the agency indefinitely suspended the appellant after it learned

that he had been charged by criminal information with two counts of attempted

threats and that the case had been assigned to an Assistant U.S. Attorney for

prosecution. 4 IAF, Tab 4 at 42, 50. Under District of Columbia law, an offense

of attempted threats is punishable by a fine and incarceration of up to 180 d ays.

D.C. Code §§ 22-407, 22-1803, 22-3571.01. Because the maximum sentence is

less than 1 year, an attempted threat may be prosecuted either by indictment or by

criminal information. See D.C. Code § 23-301. The administrative judge was

correct that, under the circumstances, the agency had reasonable cause to believe

that the appellant had committed a crime for which a sentence of imprisonment

might be imposed. ID at 4-5.

¶11 This case is similar to Hernandez v. Department of the Navy, 120 M.S.P.R.

14, ¶ 2 (2013), in which an agency indefinitely suspended an appellant after he

had been charged with various misdemeanors under California law. The appellant

in Hernandez had not been indicted. Id., ¶ 13. The Board observed that in

California, where the appellant had been charged, only felony cases are presented

to a grand jury for indictment. Id., ¶¶ 7, 13. In misdemeanor prosecutions, the

complaint was the only formal accusatory pleading filed with the court, and

therefore, under California law, the misdemeanor complaint filed against the

appellant was comparable to an indictment. Id., ¶ 13. For the reasons explained

above, the law of the District of Columbia is similar to the extent that a criminal

offense carrying a sentence of less than 1 year can be prosecuted by criminal

of the Treasury, 11 M.S.P.B. 94, 458-59 (1982), aff’d, 723 F.2d 97 (Fed. Cir. 1983)

(Table).

4

The appellant argues that the administrative judge failed to state whether the

“attempted threats” with which the appellant was charged constituted a misdemeanor,

versus a felony, charge. PFR File, Tab 1 at 10. However, the administrative judge was

not required to determine whether the crime was a misdemeanor or felony charge but, as

the administrative judge correctly found, whether the agency had reasonable cause to

believe that a crime was committed for which imprisonment may be imposed. ID

at 4-5.

7

information without a grand jury indictment. Therefore, the criminal information

in this case is comparable to an indictment.

¶12 The remaining issue to be resolved, then, is if the agency had sufficient

information before it at the time it proposed to suspend the appellant that

provided reasonable cause to believe that the appellant had commit ted a crime for

which he could be imprisoned. Id., ¶ 16. The evidence presented to the agency at

the time it imposed the appellant’s indefinite suspension included the criminal

complaint and warrant for the appellant’s arrest, two affidavits in support o f the

arrest warrant, and an email from the Assistant U.S. Attorney indicating the

appellant was being prosecuted for attempted threats which carried a maximum

penalty of 180 days in jail and $1,000 in fines. IAF, Tab 4 at 51, 54-56, 59. One

of the affidavits contained specific information regarding the appellant’s alleged

threats. IAF, Tab 4 at 55. For example, the affidavit indicated that the appellant

told his coworker “on multiple occasions . . . that he was going to come in and

kill all these motherfuckers,” referring to his supervisor and others. Id. The

affiant went on to state that the appellant had reportedly advised this same

coworker that he had added him to “the list” of people the appellant was going to

kill. Id. We find that these facts provided the agency with reasonable cause to

believe that the appellant threatened “to injure . . . a person,” a misdemeanor for

which a term of imprisonment could be imposed. 5 See Rampado v. U.S. Customs

5

On review, the appellant asserts that the administrative judge “repeatedly and

mistakenly state[s] that [the appellant] had been issued an arrest warrant based on

‘threatening to injure and kidnap a person.’” PFR File, Tab 1 at 10. A reading of the

arrest warrant shows that it was issued for exactly that, “Threatening to Injure and

Kidnap a person, in violation of 22 D.C. Code, Section 1810 (2001 ed.))” IAF, Tab 4

at 54. The relevant statute provides threatening “to kidnap any person or to injure the

person” as alternative bases for the criminal offense. D.C. Code § 22-1810. The

appellant is correct that the affidavits in support of the arrest warrant do not include

kidnapping in the narrative description. IAF, Tab 4 at 54 -55. It appears that the basis

of his arrest was threatening to injure other agency employees. Id. at 55. The

administrative judge did not make a finding that the appellant threatened to kidnap

anyone. Instead, to the extent he mentioned kidnapping, he was merely reciting what

was stated in the warrant. ID at 1-2, 4. Therefore, we discern no error.

8

Service, 28 M.S.P.R. 189, 190-191 & n.1 (1985) (finding that the appellant’s

admission to unauthorized disclosure of information, a crime for which

imprisonment could be imposed, provided the agency with reasonable cause for

his indefinite suspension).

The administrative judge correctly determined that the suspension

had an ascertainable end.

¶13 The administrative judge found that the indefinite suspension had

an ascertainable end. ID at 5-6. We agree. The appellant challenges this

determination. But his arguments concern the continuation of the indefinite

suspension after he was acquitted, which is a separate matter that we will address

below. PFR File, Tab 1 at 11; Rhodes v. Merit Systems Protection Board,

487 F.3d 1377, 1380-32 (Fed. Cir. 2007).

¶14 In determining whether the indefinite suspension was proper, we look at the

facts known by the agency at the time it was imposed. See Rhodes, 487 F.3d

at 1380 (“An inquiry into the propriety of an agency’s imposition of an indefinite

suspension looks only to facts relating to events prior to suspension t hat are

proffered to support such an imposition.”). 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. Arrieta v. Department of Homeland

Security, 108 M.S.P.R. 372, ¶ 8 (2008). An indefinite suspension may extend

through the completion of both a pending investigation and any subsequent

administrative action, provided the agency notifies the appellant of this

possibility. Engdahl v. Department of the Navy, 900 F.2d 1572, 1578 (Fed. Cir.

1990); Camaj v. Department of Homeland Security, 119 M.S.P.R. 95, ¶ 11 (2012);

Arrieta, 108 M.S.P.R. 372, ¶ 8; 5 C.F.R. § 752.402. Here, the appellant’s

indefinite suspension had an ascertainable end because the agency stated in the

suspension proposal and decision notices that the suspension would end following

the disposition of the criminal charges against the appellant and the completion o f

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any administrative action. IAF, Tab 4 at 17, 52. Therefore, we decline to disturb

the administrative judge’s determination to affirm the indefinite suspension.

The appeal must be remanded to determine if the agency impermissibly continued

the suspension after the appellant responded to his proposed removal.

¶15 The appellant argued below, and reargues on review, that the agency

improperly continued his indefinite suspension beyond the date of his

acquittal. IAF, Tab 16 at 14-15; PFR File, Tab 1 at 11-14. The administrative

judge analyzed this argument as a challenge to whether the indefinite suspension

had an ascertainable end. ID at 5-6. When a suspension continues after the

condition subsequent that would terminate it, the continuation of the suspensi on

is a reviewable agency action separate from the imposition of the suspension

itself. Sikes v. Department of the Navy, 2022 MSPB 12, ¶ 7 (citing Rhodes,

487 F.3d at 1381 (recognizing that “the agency’s failure to terminate an indefinite

suspension after a condition subsequent is a separately reviewable agency

action”)). Here, the administrative judge erred in considering the inde finite

suspension and its continuation as one action.

¶16 In analyzing the question as to whether the suspension had an ascertainable

end, the administrative judge concluded that it did. ID at 5-6. He reasoned that

the delay of 3 weeks between the appellant’s November 21, 2016 acquittal and his

December 8, 2016 proposed removal was reasonable. ID at 5-6. The appellant

does not directly challenge this finding. Nonetheless, for the reasons set forth

below, we find that the time it took the agency to issue the removal decision itself

should have been part of the calculus in deciding if the agency’s delay was

reasonable. We remand for further proceedings to resolve this issue.

¶17 Whether the continuation of an indefinite suspension is proper depends on

events occurring after the agency imposed the suspension. Rhodes, 487 F.3d

at 1380-81. An agency must act within a reasonable amount of time to end the

suspension once the identified condition subsequent is satisfied. Id.; Sikes,

2022 MSPB 12, ¶ 8. When, as here, the suspension is conditioned on the

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resolution of criminal charges and any subsequent agency act ion, the agency must

implement its subsequent action within a reasonable time after criminal

proceedings are concluded. Camaj, 119 M.S.P.R. 95, ¶ 11. In determining the

reasonableness of any delay, the Board has traditionally looked at the amount of

time it took the agency to propose an adverse action. Id., ¶ 12 (concluding that a

delay of nearly 3 months between the resolution of the criminal charges against

an appellant and his proposed removal was unreasonable); Jarvis v. Department

of Justice, 45 M.S.P.R. 104, 107, 111-12 (1990) (finding that a period of

2 1/2 months between the dismissal of an indictment against an appellant and his

proposed suspension was unreasonable). Given this case law, it is not surprising

that the administrative judge examined the period between the appellant’s

acquittal and his proposed removal. ID at 5-6.

¶18 Here, although the agency acted relatively quickly to propose the

appellant’s removal on December 8, 2016, it did not issue its removal decision

until May 4, 2017, five months later. While Board cases appear to look at this

issue more narrowly, as discussed above, an indefinite suspension may only

continue through the “completion of any subsequent administrative

action.” 5 C.F.R. § 752.402 (emphasis added). “The cornerstone of the [Civil

Service Reform Act of 1978’s] protections is the aggrieved employee’s right to

seek review of adverse agency action in the . . . Board.” LeBlanc v. United

States, 50 F.3d 1025, 1029 (Fed Cir. 1995). That right is triggered by the

agency’s decision on its proposed action, not the proposal. 5 U.S.C. § 7513(d);

Emerald v. U.S. Postal Service, 49 M.S.P.R. 586, 587-88 & n.1

(1991). Therefore, to determine if an indefinite suspension continued for an

unreasonable time, the relevant ending date is the one on which the agency issues

its decision on any proposed action arising out of the same conduct that led to the

criminal charges. See Engdahl, 900 F.2d at 1578-79 (finding that an agency did

not unreasonably delay the appellant’s “actual removal” following resolution of

the criminal charges against him). Permitting the agency to take an unlimited

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amount of time to make a decision on a proposed adverse action while keeping

the appellant on an indefinite suspension would run contrary to the requirement

that an indefinite suspension have an ascertainable end. See Arrieta,

108 M.S.P.R. 372, ¶ 8.

¶19 Based on the decision letter indefinitely suspending the appellant, the

condition subsequent triggering the cessation of the appellant’s suspension was

the “(1) completion of any criminal proceedings . . . and (2) completion of any

subsequent administrative action taken against [the appellant].” IAF, Tab 4 at 17,

52 (emphasis added). As discussed above, the agency timely proposed the

appellant’s removal on December 8, 2016, based in part on the conduct

underlying the criminal charges. IAF, Tab 19. Due to a request for extension

from the appellant’s representative, the appellant provided an oral and written

reply on February 2, 2017. IAF, Tab 16 at 73-78; Tab 18, Hearing Recording

Audio 2 of 3 at 1:36:10-1:39:10 (testimony of the appellant). This portion of the

delay in the agency’s removal decision appears to be the fault of the appellant’s

representative.

¶20 If this were the entirety of the delay, the appellant would be unable to

prevail on a claim that the agency improperly continued his indefinite

suspension. See Engdahl, 900 F.2d at 1578-79 (declining to find that the

continuation of an appellant’s indefinite suspension was improper when the delay

was due to his attorney’s requests for extensions to reply to the appellant’s

proposed removal). However, there is no explanation in the record for the

3-month delay between the appellant’s reply and the agency’s May 4, 2017

removal decision. 0577 IAF, Tab 3 at 19-33. In fact, the deciding official signed

and dated his Douglas factor checklist on March 28, 2017, thus indicating that

he had already considered the appellant’s penalty on or before that date .

Id. at 25, 33; see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06

(1981) (providing a nonexhaustive list of factors relevant to penalty

determinations). It does not appear from the record that there were any unusual

12

circumstances that would explain why it took the agency until May 4, 2017, to

issue its removal decision.

¶21 Neither the parties nor the administrative judge addressed th is 3-month

delay, and the record is not developed on this issue. Therefore, we cannot resolve

this issue on the current record. Thus, we must remand the case to the regional

office for further development of the record and adjudication of this issue. See

Montgomery v. Department of Health and Human Services, 123 M.S.P.R. 216,

¶ 13 (2016) (remanding an appeal for the administrative judge to hold the

appellant’s requested hearing and develop the record). Even if the record were

fully developed, remand would be necessary here. The administrative judge who

oversaw the proceedings below and issued the initial decision is no longer

employed by the Board. When there is conflicting testimony on a material issue,

and a new administrative judge will decide the case, the testimony shou ld be

heard again to permit him to make credibility determinations based on witness

demeanor. Lin v. Department of the Air Force, 2023 MSPB 2, ¶ 24. On remand,

the administrative judge may incorporate into the remand initial decision the

findings from the initial decision, as modified by this Remand Order above,

affirming the appellant’s indefinite suspension. Id., ¶ 9. If the administrative

judge finds that the agency failed to issue its removal decision within a

reasonable time, the administrative judge should order the agency to reinstate the

appellant to the date of the resolution of criminal charges. Camaj, 119 M.S.P.R.

95, ¶ 11.

¶22 Finally, we briefly dispose of the appellant’s remaining arguments on

review. He argues that the continuation of his indefinite suspension was not

justified because the agency failed to charge him with the same “offense” as the

one set forth in the criminal charges. PFR File, Tab 1 at 13. Generally, once the

underlying criminal case against an appellant is resolved, an agency must

immediately terminate the indefinite suspension unless it contemplates effecting

further disciplinary action within the foreseeable future. Welch v. Department of

13

Justice, 106 M.S.P.R. 107, ¶¶ 3, 5 (2007). To the extent the appellant suggests

that the conduct underlying his arrest is not the same as that which led to his

indefinite suspension and removal, we are not persuaded. The “inappropriate

comments” charge consists of the underlying miscondu ct for which the appellant

was criminally charged. Compare IAF, Tab 19 at 2, with IAF, Tab 4 at 27-28, 51,

55. Furthermore, the fact that the appellant was ultimately acquitted does not

prevent the agency from proposing his removal based on the same misc onduct

underlying the charge. See Pflanz v. Department of Transportation, 21 M.S.P.R.

71, 73 (1984), aff’d, 776 F.2d 1058 (Fed. Cir. 1985) (Table). The appellant’s

acquittal on criminal charges is not relevant in the administrative proceedings

when the agency action is based upon the misconduct which led to the criminal

charge not on the fact of arrest or indictment, which is the case here. Id.

¶23 For the reasons discussed above, we remand this case to the regional office

for further adjudication of the appellant’s claim that the agency improperly

continued his indefinite suspension beyond February 2, 2017, in accordance with

this Remand Order. The new administrative judge may incorporate into the

remand initial decision the findings, discussed above, tha t the agency properly

imposed the indefinite suspension in the first place.

ORDER

¶24 For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.