Robert S. Rhodes v. Merit Systems Protection Board

United States Court of Appeals for the Federal Circuit
2006-3340
ROBERT S. RHODES,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Elaine Kaplan, Senior Deputy General Counsel, National Treasury Employees
Union, of Washington, DC, argued for petitioner. With her on the brief were Gregory
O’Duden, General Counse, L. Pat Wynns, Associate General Counsel, and Robert H.
Shriver III., Assistant Counsel.
Raymond W. Angelo, Acting Associate General Counsel, Office of the General
Counsel, United States Merit Systems Protection Board, of Washington, DC, argued
for respondent. With him on the brief were B. Chad Bungard, General Counsel, and
Rosa M. Koppel, Deputy General Counsel.
Appealed from: United States Merit Systems Protection Board

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United States Court of Appeals for the Federal Circuit
2006-3340
ROBERT S. RHODES,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: May 23, 2007
__________________________
Before BRYSON and LINN, Circuit Judges, and ROBINSON, District Judge.*
LINN, Circuit Judge.
Robert S. Rhodes (“Rhodes”) seeks review of the final decision of the Merit
Systems Protection Board (“Board”), Rhodes v. Dep’t of Homeland Sec., No. NY-0752-
06-0015-I-1 (M.S.P.B. June 2, 2006) (“Final Decision”), which dismissed Rhodes’s
appeal challenging the Department of Homeland Security’s (“agency’s”) failure to
restore Rhodes to duty after an acquittal of criminal charges that formed the basis of his
indefinite suspension from the agency. Because the AJ erred in determining that it
lacked jurisdiction over Rhodes’s appeal, we reverse and remand.
* Honorable Sue L. Robinson, Chief Judge, United States District Court for
the District of Delaware, sitting by designation.

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I. BACKGROUND
The facts are not disputed. Rhodes was employed as a Customs and Border
Protection Officer with the agency when he was indicted on charges of a felony violation
of 18 U.S.C. § 242 in the United States District Court for the Western District of New
York. On July 27, 2004, the agency proposed that Rhodes be indefinitely suspended.
Suspensions are temporary by definition, see 5 U.S.C. § 7501(2), and an indefinite
suspension is one that “continues for an indeterminate period of time and ends with the
occurrence of the pending conditions set forth in the notice of action,” 5 C.F.R.
§ 752.402(e). The July 27, 2004 notice of action proposed suspension “pending further
investigation and/or resolution of the criminal charges.” In a final decision notice dated
August 4, 2004, the agency effected Rhodes’s indefinite suspension beginning August
6, 2004. The final decision notice also informed Rhodes that he could either file an
appeal with the Board or request that the National Treasury Employees Union invoke
arbitration on his behalf under the collective bargaining agreement, but that he could
only select one avenue and that his election would be final on the date any complaint or
appeal was filed.
On September 1, 2004, the union invoked arbitration under the collective
bargaining agreement to challenge the imposition of the indefinite suspension. The
parties later agreed to hold the arbitration in abeyance pending the outcome of the
criminal case in the Western District of New York. On or about September 8, 2005, a
jury found Mr. Rhodes not guilty of the criminal charges. The union withdrew its
invocation of arbitration on October 12, 2005.
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On October 14, 2005, Rhodes filed an appeal with the Board to challenge the
agency’s failure to promptly terminate the indefinite suspension and restore him to duty
after his acquittal. The agency filed a motion to dismiss the appeal for lack of
jurisdiction, arguing that Rhodes was precluded from seeking Board review under 5
U.S.C. § 7121(e)(1) because he had elected to challenge the indefinite suspension
through the negotiated grievance procedures.
In considering the agency’s motion, the administrative judge (“AJ”) noted that
Rhodes “is not seeking Board review of the merits of the agency’s decision to
indefinitely suspend him. Instead, he is challenging the agency’s alleged failure to end
the indefinite suspension and return him to duty.” Rhodes v. Dep’t of Homeland Sec.,
No. NY-0752-06-0015-I-1, slip op. at 4 (M.S.P.B. Feb. 10, 2006) (“Initial Decision”). The
AJ determined, however, that such a challenge is only properly before the Board as a
petition for enforcement of a prior Board decision on the merits of the imposed
suspension. Id., slip op. at 6 (“[T]he Board has held that any subsequent appeal filed
by the appellant after resolution of the criminal charges, challenging the agency’s failure
to end the indefinite suspension upon the occurrence of the condition subsequent, is
treated as a petition for enforcement of the initial decision finding the agency had
articulated a valid condition subsequent.”). The AJ then concluded that “an election to
grieve the reasons for the indefinite suspension through the negotiated grievance
procedure would include any subsequent action challenging the agency’s alleged failure
to end the indefinite suspension pursuant to the stated condition subsequent.” Id., slip
op. at 7. Accordingly, the AJ dismissed Rhodes’s appeal for lack of jurisdiction. Id., slip
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op. at 8. The Board denied review, and the decision became final. Final Decision, slip
op. at 2. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
The question of the Board’s jurisdiction is a legal issue that we address without
deference. Yates v. MSPB, 145 F.3d 1480, 1483 (Fed. Cir. 1998). Section 7121
provides, in relevant part, that “[m]atters covered under sections 4303 and 7512 of this
title which also fall within the coverage of the negotiated grievance procedure may, in
the discretion of the aggrieved employee, be raised either under the appellate
procedures of section 7701 of this title or under the negotiated grievance procedure, but
not both.” 5 U.S.C. § 7121(e). Rhodes argues that the imposition of an indefinite
suspension and the failure to terminate that indefinite suspension are not the same
“matter” according to 5 U.S.C. § 7121(e). We agree.
The distinction between the proper imposition of an indefinite suspension and the
proper continuation of that indefinite suspension is demonstrated by the nature of the
inquiries involved on review. An indefinite suspension longer than fourteen days is an
adverse agency action subject to the requirements of 5 U.S.C. § 7513. See Dunnington
v. DOJ, 956 F.2d 1151, 1153 (Fed. Cir. 1992). To properly suspend an employee with
less than 30 days notice, that statute requires that “the agency must have reasonable
cause to believe that the employee committed a crime for which a sentence of
imprisonment could be imposed, 5 U.S.C. § 7513(b)(1), and the suspension must
promote the efficiency of the service, 5 U.S.C. § 7513(a).” Morrison v. NSF, 423 F.3d
1366, 1368 (Fed. Cir. 2005) (citing Dunnington, 956 F.2d at 1155). Where—as here—
the employee has been indicted for a crime for which a sentence of imprisonment may
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be imposed and the nature of the crime relates to the employee’s ability to perform his
or her duties, the requirements of section 7513 will have been met. Richardson v. U.S.
Customs Serv., 47 F.3d 415, 419 (Fed. Cir. 1995); see also Pararas-Carayannis v.
Dep’t of Commerce, 9 F.3d 955, 957 (Fed. Cir. 1993); Dunnington, 956 F.2d at 1155.
An inquiry into the propriety of an agency’s imposition of an indefinite suspension looks
only to facts relating to events prior to suspension that are proffered to support such an
imposition. Facts and events that occur after the suspension has been imposed have
no bearing on such an inquiry. See Richardson, 47 F.3d at 421 (noting that an
otherwise proper imposition of an indefinite suspension “is not made invalid by a later
determination that the alleged criminal conduct was not conclusively established”).
An inquiry into the propriety of an agency’s failure to terminate an indefinite
suspension, however, is a different matter and does look to facts and events that occur
after the suspension was imposed. Although an exact duration for an indefinite
suspension may not be ascertainable, a condition subsequent must exist that
terminates the suspension. See 5 C.F.R. § 752.402(e); see also 5 U.S.C. § 7501(2).
Once the condition subsequent has occurred, the agency must terminate the
suspension within a reasonable amount of time. See Richardson, 47 F.3d at 419;
Dunnington, 956 F.2d at 1156; Engdahl v. Dep’t of the Navy, 900 F.2d 1572, 1578 (Fed.
Cir. 1990). The inquiry in such a case therefore looks to whether an identified condition
subsequent has occurred after the suspension was imposed and whether the agency
acted within a reasonable amount of time to terminate the suspension.
Here, Rhodes does not dispute that the agency complied with the requirements
of section 7513 or that the imposition of the indefinite suspension was proper. Instead,
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Rhodes appeals to the Board alleging that it was improper to continue the indefinite
suspension for more than 60 days after his acquittal with no administrative action
proposed against him. As discussed above, the inquiry presented by such an appeal is
entirely different from the inquiry presented by an appeal from the imposition of an
indefinite suspension. Board decisions recognize that distinction and have allowed
employees to appeal the continuation of an indefinite suspension without requiring a
challenge to the suspension’s imposition. See Hofmann v. Dep’t of Agric., 31 M.S.P.R.
399, 401 (1986) (“[A]ppellant should not be foreclosed from challenging the continuing
nature of the suspension now because he recognized that an earlier challenge would
waste his, the agency’s, and the Board’s time and resources and that appellant is
entitled to challenge the continuation of the indefinite suspension in light of the changed
circumstances.”); see also White v. USPS, 58 M.S.P.R. 22, 24–25 (1993). That is
because the agency’s suspension in such a case—though proper when imposed—
becomes improper after an identified condition subsequent has occurred. See White,
58 M.S.P.R. at 25 (“We conclude that the appellant here also acted properly in awaiting
the disposition of his criminal charge, and the agency’s decision on whether to reinstate
him, before bringing his appeal. Indeed, as he argues, until these events transpired, he
had nothing to appeal, in that the initial imposition of the suspension was proper.”); see
also Richardson, 47 F.3d at 421–22 (“When, as here, the summary suspension is based
on an indictment for a crime of which the employee is acquitted, the date of the acquittal
clearly marks a date at which the agency no longer can maintain that it has reasonable
grounds for summary suspension. The reason for the summary suspension disappears
at that point, and, absent separate administrative proceedings on which to base an
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independent adverse action, the employees are entitled to reinstatement with pay as of
that time.” (footnote omitted)). The Board’s treatment of these cases acknowledges that
the agency’s failure to terminate an indefinite suspension after a condition subsequent
is a separately reviewable agency action. We therefore conclude that the matter raised
by an appeal from the imposition of an indefinite suspension is not the same as the
matter raised by an appeal from the continuation of an indefinite suspension. As a
result, Rhodes’s election to grieve the former does not preclude an appeal to the Board
of the latter.
The government argues that Bonner v. Merit Systems Protection Board, 781 F.2d
202 (Fed. Cir. 1986), defined the term “matter” in section 7121 as the underlying
personnel action, of which there is only one in this case. In Bonner, the government
argued that the term “matter” in 5 U.S.C. § 7121(a) refers only to appeals from an
agency’s action, not the underlying agency action itself. 781 F.2d at 204. We rejected
that interpretation and held that the term “matter” embraced both an underlying agency
action and an appeal from that action. Id. at 204–05. Contrary to the government’s
argument, nothing in Bonner limited the definition of “matter” to the underlying personnel
action that was taken. The Board treats an agency’s failure to terminate an indefinite
suspension as a separately reviewable action from the agency’s imposition of that
indefinite suspension even though both agency actions concern the same personnel
action. See White, 58 M.S.P.R. at 24–25; Hofmann, 31 M.S.P.R. at 401. Therefore, an
analysis of “matter” in the context of 5 U.S.C. § 7121(e) that looks to the underlying
agency action that is being appealed—not the underlying personnel action—does not
conflict with our decision in Bonner.
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Because an appeal from an agency’s failure to terminate an indefinite
suspension involves a different inquiry than an appeal from an agency’s imposition of an
indefinite suspension, and because the Board’s own decisions treat the former as a new
matter, the AJ erred in dismissing Rhodes’s appeal for lack of jurisdiction under 5
U.S.C. § 7121.
III. CONCLUSION
For the foregoing reasons, we reverse the Board’s dismissal for lack of
jurisdiction. We note, however, that the Board expressly declined to address the
timeliness of Rhodes’s appeal. That issue may therefore be addressed by the Board on
remand.
REVERSED AND REMANDED
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