In a decision issued this past Wednesday, the Federal Circuit Court of Appeals held that an employee who has been indefinitely suspended has two separate MSPB Appeal rights. The first is the right to challenge the imposition of the indefinite suspension, and the second to challenge the continuation of the indefinite suspension. Rhodes v. Merit Systems Protection Board, Fed. Cir. No. 2006-3340; MSPB Docket No. NY-0752-06-0015-I-1 (May 23, 2007 ).
In Rhodes, an employee was indefinitely suspended for a criminal indictment that occurred off the job. He filed a grievance through his Union, challenging the Agency’s decision to put him on an indefinite suspension. The grievance was withdrawn after the employee was found innocent of the criminal charges. Mr. Rhodes immediately brought his challenge to the Agency’s failure to reinstate him from the rolls – 5 weeks after the criminal acquittal – to the MSPB. An Administrative Judge dismissed the case for lack of jurisdiction – the MSPB said that the employee already grieved the indefinite suspension and doesn’t get two bites at the proverbial apple.
The Federal Circuit disagreed. The Court found that an Agency’s failure to terminate an indefinite suspension gives rise to an MSPB appeal right – separate and distinct from the appeal of the Agency’s decision to impose the suspension in the first place. A condition must exist that terminates the [indefinite] suspension, the Court’s decision reads.
You can read the whole decision by clicking here: Rhodes v. Merit Systems Protection Board. Congratulations to the National Treasury Employee’s Union (NTEU) for their successful argument on this case.
Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative.
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