The federal circuit court of appeals recently sided with the agency in its indefinite suspension of an employee charged with attempted first-degree murder. (Rawls v. United States Postal Service, U.S.C.A.F.C. No. 05-3102 (non-precedent), 4/6/06)
Mr. Rawls, a mail handler with the U.S. Postal Service, was arrested and charged with attempted first-degree murder in connection with a nightclub shooting. As a result, his agency indefinitely suspended him based on “reasonable cause to believe that [he had] committed a crime for which a sentence of imprisonment can be imposed.” (Opinion p. 2)
Apparently, in doing so, the agency did not issue a proposal notice before its decision notice. However, Mr. Rawls was given a post-suspension grievance opportunity. (Opinion, p. 3)
Several months later a jury convicted Mr. Rawls of the lesser-included offense of reckless endangerment. He got the maximum penalty—a $1000 fine and 11 months and 29 days. At that point Mr. Rawls requested that the agency allow him to participate in the work release program while he served his term. When he refused to make a statement in a follow-up administrative interview, the agency notified Rawls that he was being removed. (Opinion p. 2)
On appeal to the Merit Systems Protection Board, two docket numbers were assigned—one for the indefinite suspension and one for the removal. The case just ruled on by the federal appeals court involves the indefinite suspension only.
In that case, the Administrative Judge had reversed the indefinite suspension, holding that Rawls had been denied minimum due process. However, the full Board overturned that decision and remanded to the AJ for further findings. Once again, the AJ reversed the indefinite suspension since the agency’s notice had failed to specify an ascertainable end point for the suspension. At the same time, the AJ did not find evidence to support Rawls’ affirmative defenses of race discrimination and that the lack of notice of the proposed suspension was harmful error. (Opinion p. 3)
The case bounced back up to the full Board, which again reversed the AJ. (Rawls v. United States Postal Serv., 98 M.S.P.R. 98 (December 1, 2004)). (See Can A Federal Employee Be Fired After A Criminal Conviction?) The Board found that the suspension notice did have an implicit condition subsequent “since the suspension was based on a criminal charge which must be resolved, one way or another, through criminal proceedings.” Even if this was error, it was not harmful error that would warrant the reversal of the suspension. (Opinion, p. 4)
Pointing out that Rawls’ suspension continued beyond his conviction until the time the agency effected his removal, the Board nevertheless found that the agency was not required to end the suspension, reinstate Rawls, and then proceed to remove him.
The appeals court affirmed the Board’s decision. It was “unpersuaded” by Rawls’ argument that the Board erred in its analyses on harmful error and the lack of an ascertainable end to the suspension: “The Board correctly found that the agency’s failure to expressly state the condition subsequent in its notice was subject to the harmless error rule….[S]ubstantial evidence supports the Board’s ultimate conclusion that the error was harmless.” (pp. 5-6)
