The Federal Circuit Court of Appeals has overturned a decision of the Merit Systems Protection Board involving a Homeland Security employee who had been indefinitely suspended as the result of criminal charges. In Rhodes v. Merit Systems Protection Board, C.A.F.C. No. 2006-3340, 5/23/07, the court ruled that the Board erred in its determination that it lacked jurisdiction over Mr. Rhodes’ appeal. The facts, which the court characterizes as undisputed, are taken from its memorandum opinion.

Rhodes, a Customs and Border Protection Officer, was indicted in New York for violation of 18 U.S.C. §242. (The decision does not address the facts that gave rise to Rhodes’ indictment in the first place. This particular law makes it a felony to willfully deprive a person of rights guaranteed by the Constitution or laws of the United States.

The agency suspended Rhodes indefinitely “pending further investigation and/or resolution of the criminal charges.” In its decision, the agency spelled out Rhodes’ options for appeal as either going to the MSPB, or invoking arbitration through his union, National Treasury Employees Union, but not both. The union invoked arbitration to challenge the suspension, but agreed with the agency to hold up going to arbitration until the criminal charge was resolved. About a year later a jury found Rhodes not guilty and a month later the union withdrew its arbitration request. (p. 2)

Several days after the union’s withdrawal, Rhodes filed an appeal with the MSPB challenging the agency’s failure to immediately end the indefinite suspension and restore him to duty. The agency argued that Rhodes had elected to challenge the suspension through the union’s negotiated grievance procedure, and, therefore, the Board lacked jurisdiction. (p. 3)

The administrative judge found that the Board lacked jurisdiction. He noted that Rhodes was not seeking review of the agency’s indefinite suspension. However the challenge to the agency’s failure to reinstate him was only properly before the Board as an enforcement action from a Board decision on the merits of the suspension. Since Rhodes did not challenge the merits before the Board and instead elected arbitration, he reasoned that the Board did not have jurisdiction to hear his enforcement petition. The Board declined to review the AJ’s decision. (p. 3)

Rhodes, represented by NTEU, took his case to the appeals court, arguing that the indefinite suspension and the failure to restore him to duty following his acquittal were two different matters. Therefore, his election in the former did not preclude the Board from hearing his challenge to the latter agency action.

The court agreed with Rhodes, saying that the facts bearing on an indefinite suspension relate to events before the suspension occurred. Whereas the facts bearing on failure to reinstate following a suspension “and does look to facts and events that occur after the suspension was imposed.” (p. 5) The court pointed out that there has to be a condition subsequent that ends the suspension: “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.” (p. 5)

In other words, a suspension may be proper when it is done in the first place, but becomes improper after a pre-identified subsequent event occurs. The court reversed the Board’s dismissal and remanded the case to MSPB.