*3 Presid- Agent, Chief Patrol Before MSPB only days’ titioners received ten notice of Official, at ing Appendix Joint B 26-28. proposed pursuant action to 5 U.S.C. re- 7513(b)(1) (Supp. 1981), point V which allows Petitioners out that § give thirty days’ to less than liance on the mean either agency indictment notice if “there is reasonable cause to be suspended petitioners that sim- lieve the a crime employee has committed indicted or that ply they because had been for which a sentence of imprisonment may because agency suspended petitioners imposed.” be petitioners October On they allegedly charged committed the acts attorney informally and their met argue in the indictment. Petitioners that Agent Chief Patrol Donald M. Cameron and suspended only because an can be responded orally to the adverse proposed reasons,” “disciplinary for 5 U.S.C. 15, 1979, action. On October Cameron in 7501(2) 1981), V (Supp. “such § formed petitioners of his decision to sus as will promote efficiency cause pend them indefinitely without effec id. service,” 7513(a), could not § tive October 1979. This decision was lawfully rely on the mere fact of indictment itself; entirely indictment in- suspending in them. The mere fact of undertook independent investiga no dictment, contend, petitioners cannot estab- presented wrongdo tion and no evidence of to suspend lish “cause” be- ing petitioners other the indict than is not an of the em- cause act ment. assert, Furthermore, re- ployee. liance indictment is appealed Petitioners MSPB, 22, 1980, January satisfy and on a for- insufficient that requirement Improvement Appeals 1. The Federal Act of States for the Federal Circuit. Courts Court 97-164, (to petition Pub.L. No. for review here was filed 96 Stat. 45 Because § 30, 1982, 7703(b)(1) (1982)), codified at 5 on June before the effec- with this court Act, 1, 1982, jurisdiction jurisdic- tive October vested exclusive effective date of the we tion to review of the MSPB in in this case. orders the United alleged noting a nexus between the mis- that at stages there be several job perform- and the employee’s conduct statutory appeals process by peti- utilized interest. ance or other substantial federal tioners, they ample opportunity 265, 272 Hampton, Doe v. See why show the indictment satisfy failed to (D.C.Cir.1977). According petitioners, the “reasonable cause to believe” standard. and “nexus” requirements the “cause” only parties Not do the disagree about be met if the relied on the acts legal standard for suspending an em- the indictment in charged by suspending ployee and the sufficiency an indictment contend, them. The standard, meeting in disagree also is not itself committed about the standard this court should use acts, respondent those therefore failed reviewing final order of the MSPB. prove the petitioners’ wrongdoing by a Respondent notes that there was no dispute preponderance required the evidence as about the fact of indictment. 7701(c)(1)(B) 1981). V (Supp. U.S.C. § *4 Therefore, respondent argues, the MSPB’s Respondent that “cause” replies and “dis- petitioners’ that was ciplinary reasons” are not the lawful only lawful is a conclusion of law under the Civil suspension; bases for an can also employee Service Retirement Act and may be set asserts, suspended, respondent be if the aside it is “arbitrary, capricious, an “reasonable agency has cause to believe the discretion, abuse of or otherwise not in ac- employee has committed a crime for which cordance with law.” 5 7703(c)(1) U.S.C. § imprisonment a sentence of be im- 1981); Listerman, V (Supp. Jolly cf. posed.” 7513(b)(1) (Supp. V § U.S.C. (D.C.Cir.1982) (pre-Civil Ser- 1981). Thus, view, in respondent’s very vice Reform Act law required application of fact that gave indicted or “arbitrary capricious” test to agency’s requisite “reasonable cause to decision to employee). remove Petitioners believe the has a employee committed retort that 5 7703(c)(3) (Supp. V § crime.” The requirement nexus is also sat- 1981) requires this court to set aside the isfied, respondent contends, by the face of order if it “unsupported by MSPB is sub- which discloses that stantial Gipson evidence.” See v. Veterans charged tioners were with unlawful acts Administration, 1004, 1008, directly their involving law enforcement (D.C.Cir.1982). functions and allegedly committed while they were on duty the Border Patrol. Our review in this case is by influenced Nevertheless, petitioners insist that be- events, subsequent as represented by us cause the must have relied on the counsel oral he during argument. After charges presented substance of the in the indefinitely suspended, Brown was them, indictment in deciding suspend the charges tried on contained in the indict- rights violated their under the due prosecution ment. A first ended in a mis- process clause of the fifth amendment. trial, upon but retrial he was convicted on injury reputations done their and to conviction, Following all counts. his Brown by financial interests the indefinite was removed from the service. Brown does suspensions a deprivation constituted of not contest his removal. Charest was sub- interests, protected liberty and property sequently acquitted of all charges contained effected, petitioners argue, which was with- except count, in the indictment the perjury them, process out minimum due since dismissed, which was later and was rein- were unable to confront the witnesses to active on duty stated December them thereby specific refute Analysis B. allegations impeach factual the witness- An decision to an agency’s suspend es’ credibility. Respondent counters re- employee may upheld by be iterating its contention that the MSPB appeal only “supported were based on the fact of if it is a by prepon charges work-related derance evidence.” 5 U.S.C. We, charges, with- 1981). indictment on work-related (Supp. V 7701(c)(1)(B) § more, justify to review the record an indefinite turn, out empowered and to set suspending held that it could. We before sion. The MSPB “arbitrary, capri- if it is agency action squarely aside before confronted this have never discretion, cious, or otherwise an abuse of issue. if it is with law” or in accordance not suspension requires a “disci By definition evidence.” Id. substantial “unsupported by reasons,” 7501(2) (Supp. 5 U.S.C. plinary § (3). We believe MSPB’s 7703(c)(1), § 1981); suspended employee may V were indicted on
finding that cause as will promote for such “only clearly supported is work-related Id. 7513(a). the service.” efficiency of must, in the record and substantial that indictment on work- Petitioners assert However, therefore, affirmed. constitute “cause” to related cannot law, (1) twin conclusions MSPB’s because indictment suspend work-related does indictment on and is not evi not an act of the “cause” to constitute Respondent acts. dence of an the lawfulness of their (2) 7513(b)(1), pro to 5 which points U.S.C. § are not entitled to suspensions, petitioners vides: benefits, must be reviewed back against whom an action “in those conclusions are determine whether to— is entitled proposed accordance with law.” days’ least 30 advance written (1) at we, like the emphasize that We notice, unless there is reasonable cause MSPB, action as based view the *5 the has committed a employee believe petitioners’ fact of indictment solely on the imprison- for which a sentence of crime alleged and not on the conduct in the indict imposed ment be .... reject petitioners’ claim that ment. We alone reliance on the fact of indictment view, In this section sanctions respondent’s the of a nexus satisfy requirement cannot on “reasonable cause to suspensions based the alleged wrongdoing between the employee has committed a believe the Doe v. See job performance. employee’s crime,” the petitioners’ gave Hampton, 566 (D.C.Cir.1977). 272 requisite “reasonable cause to agency indicted on abstract validly One cannot be argument attack this believe.” Petitioners spe set forth charges; an indictment must asserting (1) quoted section is criminal Fed. alleged conduct. cifically furnishing no ad- provision, a notice purely Thus, indictment on a 7(c). R.Crim.P. for suspension substantive standard ditional require not the nexus charge might satisfy cause to believe (2) even if reasonable charge appear does not ment because suspension, for “cause” can- ground were a duties, employee’s be to the while related proof employ- some of an not exist without be charge indictment on another could conduct, which an indictment wrongful ee’s requi thereby provide work-related and both of supply. reject petition- We cannot Here, the face of the indict site nexus. arguments. ers’ con alleged ment reveals that the criminal to believe the If “reasonable cause quality peti directly implicated duct not has committed a crime” were employee Indictment, See job performance. tioners’ it would suspension, a substantive basis Otherson, v. (S.D.Cal. 2 United States at special include a notice superfluous would, 25, 1979) (“the conspirators Sept. Alsbury for that situation. See provision and detention of during apprehension Service, States Postal assault, beat, United aliens, illegal unjustifiably (9th Cir.) (construing Postal n. 3 illegal strike, kick and mistreat the said provision notice similar to Manual Service aliens”), Appendix Joint A at 16. There “allowing immediate 7513(b)(1) as fore, facing adjudg us in only question there is an when employee ing the lawfulness a guilty he is cause to believe employee’s fact of an reasonable whether cert, denied, crime”), always persons 429 U.S. evidence that S.Ct. named we believe been indicted by grand jury 50 L.Ed.2d a agency record, its of an an recited. From the it is clear it had reasonable employee by proving that that this was the use only evidentiary made had commit- employee cause believe the of the indictment and that nei- a ted work-related crime. objected ther to its use in this manner nor disputed the fact of their indictment.2
We do not
fur
accept
Essentially,
cause
argument
allowing suspensions
ther
that reasonable
to be
to be
lieve can arise
evidence of an
indictment on
employee’s
from
employee’s wrongful
Certainly,
charges,
recognizing
acts.
at
we
job-related
are
point
of an em
along
employee
some
continuum
when
the crimi-
targeted
justice
justice
involvement in the criminal
ployee’s
system,
nal
the administrative re-
evidence of that involvement alone
system,
quirements
implicated.
record,
rise to
gives
public
reasonable cause
believe the An indictment
is a
and public
has
a crime. At
employee
knowledge
committed
one
that an individual
ac-
formally
spectrum,
end of the
of an
employ
job-related
evidence
cused
crimes is still on duty
job-related charges
ee’s conviction on
would
undoubtedly
would
erode public confidence
addition,
undoubtedly give
agency.
reasonable
in the
In
if an employee
to believe the
had
employee
cause
commit
indicted
work-related
were re-
crime,
possessed
a
job
ted
even
no tained
and if the employee en-
commission of
in conduct
gaged
alleged
of the sort
in the
acts.
of the spectrum,
functioning
At the other end
of the agency
evidence that an
has been
ques might
severely
or Oven
hindered
under-
by police
Indeed,
tioned
about
a
offense mined.
here
lives of illegal
undoubtedly
might
not constitute reasona
jeopardized.
aliens
have been
cause to
com
employee’s suspension
disposition
ble
believe the
had
pending
mitted the crime.
an employee
safeguards
Once
is of the criminal
thus
however,
job-related charges,
indicted on
removing
interest
public
cause”
justi
has the
or she
position
might
“reasonable
where he
*6
fy suspending an
This is so
employee.
alleged
be
the
and
repeat
thereby
misconduct
upon
cause
indictment must
based
the
impede
functioning
agen-
lawful
of the
cause” to
the
“probable
believe
named indi
and
cy
destroy public confidence in the
charged.
vidual committed the acts
agency.
principle
See
This does not violate the
Calandra,
338,
414
United States
the employee
presumed
U.S.
that
is
innocent un-
343-44,
617-18,
613,
94 S.Ct.
sion on the
that
independently
taken
prove
charges
conduct and to
some of the criminal
had
Ordinarily,
occurred.3
actually
the conduct
the final administrative
hear-
place before
inquiry
entail an administrative
this would
ing
petitioners’
suspension,4
it
is not
and, at
least on
alleged
into the
conduct
necessary
rely
for the
on evidence
at an
of evidence
appeal,
presentation
justifying
at the criminal trial
presented
administrative
hearing
prove
miscon
because,
seen,
as we have
suspension
effect,
then,
would be
duct.
In
upon
was based
mini-trial
in order to
required to conduct a
upon
itself and not
fact of indictment
employee.
its action
We
underlying allegedly unlawful conduct.
“dangers
of sub
previously
noted
presenting
arguments,
In
jecting an
to an administrative
focused on the
of
parties have
lawfulness
criminal action is
hearing
pending.”
while
regard
without
the sub
Treasury,
Secretary
Polcover v.
charges against
sequent disposition
cert, denied,
(D.C.Cir.),
However,
final
petitioners.
disposition
669 sion, action, conditioned on the outcome of the conditional adverse justified ab ini- in the criminal employee’s jus- only by involvement tio the weighty interests of. the tice system. However, and the public agency. none of interests by suspending served an em- either employee acquitted Once an target who is a ployee jus- the criminal charged convicted on the crimes the in system implicated tice once the employ- dictment, the not continue the agency may system ee’s involvement with the ends. The must suspension indefinitely. Thus, in to ultimately “justified” order be decide whether to reinstate or to terminate purposes Act, for the Back applying Pay Brown, employee. employee, like suspension ripen must into a termina- ultimately job-relat who is convicted on the provable tion action based on misconduct by ed undoubtedly not rein the agency. It by agency. stated is well settled that acquittal employee does not entitle the When employee, an like is ac- reinstatement, agency may since the be able quitted and the agency chooses reinstate termination by proving em her, him or it would unfair penalize actual misconduct ployee’s by preponder the employee having target become a ance of the evidence. See Polcover v. Sec justice system. the criminal The suspen- retary Treasury, of the 477 F.2d sion, any proven based not on wrongdoing cert, denied, (D.C.Cir.), 1231-32 414 U.S. 94 by the but employee solely employ- (1973); 237 S.Ct. L.Ed.2d Jankowitz ee’s has purpose served its States, (Ct.Cl. v. United safeguarding agency’s lawful function- 1976) (citing cases). Court of Claims ing preserving public confidence in the Nevertheless, choose to re agency may The agency. employee has been vindicated an acquitted employee, agen instate as the by acquittal agency’s deci- cy chose reinstate Charest. sion not to initiate termination proceedings. Act, to allow the Pay subsequently acquitted
Under the Back U.S.C. § (1976), employee an is entitled to back reinstated to recover back pay pay for the period and benefits if the loss resulted is not to hold that the was unlawful ab “unjustified personnel or unwarranted initio, States, but is rather to hold that the suspen- action.” In Jankowitz v. United proved unjustified sion has to be (Ct.Cl.1976), F.2d 538 the Court of Claims held failure to institute termination employee lawfully that an suspended proceedings. pub- Once the interests of the the basis of his indictment on served, fully lic and the have been charges was not entitled to back pay upon complete his deserves vindication. acquittal and reinstatement Indeed, not reparations reasoned available for agency. court that awarding subsequently acquitted back to a and reinstated subsequently acquitted and employee, grave we would have doubts reinstated would be tantamount about the lawfulness of an indefinite holding to a sus- “acquittal in effect pension in- retroactively destroyed legal efficacy of charges. dictment on work-related as a basis for adverse per [the] sonnel action.” Id. at 542. In so holding, believe,
we the Court of Claims failed to III. Conclusion appreciate the realities of the situation. dispositions In view of course, Normally, of indicted, indefinite on which Brown and Charest were *8 action, sion is viewed as a discrete adverse we hold that Brown is not entitled to back and its lawfulness is judged in isolation pay and benefits but that Charest is enti- us, from subsequent events. It is clear to to correction of the action personnel tled however, that a suspension solely pay based on taken him and back and bene- the fact of an employee’s period indictment on fits for the of his indefinite job-related charges is sui generis. pay, It is a sion without October to December person being paid affirm the decision of to continue We therefore while the Brown, job respect person’s reverse status is limbo. MSPB with respect MSPB’s order I believe these alternatives should be ob- with instructions remand to the MSPB ligatory indefinite because appropriate to determine the amount of are so danger- on indictments due pay back and benefits Charest. may ous. “proba- Indictments based on crime, ble cause” that a committed a person
It is so ordered. but appellant they often —as with Charest — meantime, are not In the borne out. em- GORDON, JAMES F. Senior District ployees may like these be cut off appellants Judge, dissenting: any realistic chance of financially, without I from so respectfully dissent much being employer, hired another and with- majority’s as allows an opinion employee to any out assurance that the indictment and be suspended, indefinitely and without pay, subsequent investigation go will not on for simply on the basis of an indictment charg- all, years. Perhaps employees worst ing job-related offenses. Because such a may be thrown this limbo into because of practice is so unnecessary protect gov- politically unreliable or motivated evidence interests, ernmental and at the same time which the not know employees or be abused, could so I would easily be hold that able to discover refute. process the appellants’ rights due were vio- The majority plainly trying to address Eldridge, Mathews v.
lated.
U.S. 319 the
aspects
most unfair
of this situation
when it
interprets
Pay
Back
Act as
requiring
that a reinstated
be re
I recognize that an agency may have
wages,
imbursed for his
contrary
lost
valid
stake
interests at
when one of its
States,
Jankowitz v. United
definite suspension. The employee can be
assigned agency job to another is less Or, job
sensitive. if such a cannot be
found, placed can be ad-
ministrative which leave would allow the