Winning an Indefinite Suspension Appeal before the MSPB

Can the MSPB help if I was Indefinitely Suspended?

Most federal employees go to work for the same reason the rest of us do – to make a contribution, meet personal financial obligations, and save for retirement. There has been a recent trend for employing federal agencies to review the credit worthiness of employees and to take adverse employment actions against federal employees with poor credit or outstanding financial obligations, most notably, for unpaid taxes. This is especially true for Internal Revenue employees and other Department of the Treasury employees.

If you were recently told by your employing federal agency that your financial circumstances disqualify you from holding a sensitive position, and that they would suspend, or terminate your employment, it is imperative to respond quickly and aggressively. You may have a limited opportunity to respond to the notice of proposed removal or proposed suspension. In the case of an indefinite suspension, the time period for an appeal to the Merit Systems Protection Board is also time sensitive.

A federal employment attorney or representative familiar with litigation before the Merit Systems Protection Board can assist you in overturning an indefinite suspension. In the last month, the Merit System Protection Board has overturned two indefinite suspensions for financial related offenses by the Department of Defense, alone.

In the cases of LaTonya Marie Hall and Carolyn Williams, each federal employee was informed that they would be indefinitely suspended because the Agency received information that they had a history of not fulfilling financial obligations which warranted a revocation of access to classified information deemed necessary to perform their job duties. In the case of Carolyn Williams the Agency also alleged that her efforts to mitigate the damages caused by her financial history were not sufficient to overcome a suspension. Both women filed appeals with the Merit System Protection Board, arguing that their jobs did not require a security clearance or access to classified information and thus an indefinite suspension was improper.

To sustain an indefinite suspension the Board has held that an Agency must establish one of the following:

1. A reason sufficient for the Board, including:

• A reasonable belief that the employee has committed a crime for which a sentence of imprisonment can be imposed;

• A medical condition makes a federal employee’s presence at work dangerous or otherwise inappropriate; or

• A security clearance or other access to classified information has been terminated and the access or security clearance level was necessary to perform the essential function of an employee’s position.

2. The suspension can be cancelled by an employee meeting some condition or criteria to overcome the reasons for the suspension;

3. The suspension bears a nexus to the efficiency of the service; and

4. The penalty is reasonable.

In the cases of Ms. Hall and Ms. Williams, the Agency placed them on indefinite suspensions on the grounds that they were denied access to classified information as a result of their respective financial histories. The Department of the Army argued that without a security clearance they the federal employees would not be able to perform their job duties. In both cases, the Board found that while the Appellants’ positions were classified as “sensitive,” their job descriptions did not require security clearances or access to classified information.

In other words, even if the Department of the Army employees were denied access to classified information, it would not have barred them from adequately performing their job duties. The Merit Systems Protection Board subsequently ordered the Army to cancel the suspension in each case.

Only a qualified federal employment attorney can assess the merits of your case to determine if your indefinite suspension can be appealed to the Merit System Protection Board. If you were indefinitely suspended, a Federal Employment attorney with the Solomon Law Firm, PLLC can assist you with your MSPB appeal.