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THIS ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
3
¶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
5
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
9
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
10
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
11
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.