shaw bransford & roth case law update

No “Third Party Review” for Employee Suspended after Work-Related Criminal Accusation

A Department of Veterans Affairs employee who had been indefinitely suspended after a grand jury indictment related to the allegedly unauthorized closing of over 2,700 unresolved consults for medical care had his indefinite suspension upheld by the Merit Systems Protection Board.

The GS-13 employee was indicted on 50 counts of making false statements related to health care matters, which would be a violation of 18 U.S.C. § 1035. Such violations could be punishable by fines, but also could result in imprisonment. After the indictment, the agency proposed the employee’s indefinite suspension because, according to the agency, there was at that point reasonable cause to believe that the employee was guilty of a crime punishable by imprisonment. After a reply was made by the employee’s representative and the agency sustained the indefinite suspension, informing the employee that the suspension would last until the judicial proceedings were completed, the employee appealed his indefinite suspension to the Merit Systems Protection Board. An MSPB administrative judge affirmed the indefinite suspension, and the employee appealed to the full Board. On August 18, 2016, the Board upheld the administrative judge’s decision.

MSPB caselaw, such as Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318 ¶ 13 (2010) has held that indefinite suspensions may be upheld when an agency has “reasonable cause to believe that an employee has committed a crime for which a sentence of imprisonment could be imposed.” Reasonable cause has been defined by the Board as “synonymous” with “probable cause, which is the standard of proof needed to support a grand jury indictment, in cases like Hernandez v. Department of the Navy, 120 M.S.P.R. 14 ¶ 6, 7 (2013). Therefore, the Board found that the federal grand jury indictment against the employee was a well-settled justification for the satisfaction of the agency’s “reasonable cause” requirement for an indefinite suspension.

The employee’s argument on review for the Board, however, was that in this case, “reasonable cause” could not be met due to the nature of the transfer of information between the agency and the grand jury. According to the employee, the agency made the criminal accusations against him and then was the only entity providing evidence to be presented to the grand jury. The employee argued that the lack of any outside scrutiny of the information presented by the agency necessitated third party review (such as a law enforcement investigation or other evidence corroborating the criminal charges) to meet the reasonable cause standard. According to the employee, the agency’s allegedly role in the grand jury process made a grand jury indictment a poor indicator of the reasonableness of the cause to suspend the employee.

The Board disagreed. Finding that the “grand jury indictment is a conclusive determination of the issue of probable cause,” the Board held that there is “no requirement that the agency look into the judgment of the grand jury to determine whether the indictment was founded upon sufficient proof.”

The employee also argued that the agency violated his constitutional due process rights by failing to provide him 30 days’ advanced notice of the charges. But the Board noted that in instances in which the agency has reasonable cause to believe a crime has been committed, the requirement of thirty days advance notice before enacting the penalty can be curtailed. The Board found that because the employee received notice of the charges on July 22, 2015, received 7 calendar days to respond, and received notice of the decision to indefinitely suspend him on August 7, 2015, effective on August 9, 2015, the employee’s constitutional due process rights were not violated.

Read the full case: Henderson v. Department of Veterans Affairs.



This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: MSPB, Merit Systems Protection Board, Department of Veteran Affairs, case law update, conor d dirks, conor dirks



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