MSPB Reverses Indefinite Suspension

In the recent decision, Gonzales v. Department of Homeland Security, 2010 MSPB 132 (July 12, 2010), the MSPB reversed an administrative judge’s decision affirming an indefinite suspension. At the conclusion of a long, technical and scholarly review of the Board precedent concerning indefinite suspensions, the Board concluded, in short, that:

“[T]he mere existence of the agency’s open investigation into allegations regarding the appellant’s conduct is not ’cause’ for taking an action under subchapter II of chapter 75. See 5 U.S.C. § 7513(a).”

The agency issued Gonzales a written notice of its proposal to suspend him without pay indefinitely, pending an agency investigation into allegations regarding off-duty conduct. The agency specifically stated that it was not basing the proposed suspension on “reasonable cause to believe” that Gonzales “had committed a crime for which a sentence of imprisonment may be imposed.” Rather, the agency’s stated basis for the proposed indefinite suspension was its own open investigation into the allegations.

The Board rejected the agency’s argument that it had the right to impose the indefinite suspension for the “efficiency of the service.” The Board pointed out that there have been only three limited circumstances in which the Board and its reviewing court approved the use of indefinite suspensions, and the agency here did not base its decision on any of those grounds. Rather, as stated above, the agency based the suspension on the existence of its own open investigation into the alleged off-duty conduct. The Board again rejected the agency’s position. The Board reiterated that under Chapter 75 an adverse action (a suspension of more than 14 days is considered an “adverse action”) may only be taken for “cause,” and that the agency must prove “cause” by a preponderance of the evidence when an employee seeks review of the action by the Board.

Significantly for the Board, the agency never charged Gonzales with committing the alleged off-duty conduct. Accordingly, it dismissed the agency’s argument that the deciding official believed that the allegations against Gonzales were “sufficiently credible.” The Board concluded:

“The agency has failed to identify any valid statutory or regulatory basis for the proposition that it can preliminarily suspend the appellant based on some lesser standard of proof while it gathers additional evidence to support an action based on the underlying alleged misconduct.”

The Board’s conclusion also reiterated the centrality of “cause” in taking an adverse action under subchapter II of chapter 75, stating that the “mere existence” of the open investigation was not cause. It gave no opinion whether the agency could have imposed an indefinite suspension or other adverse action on other grounds; rather, it reviewed the action “solely on the basis charged by the agency.”