Attempt Fails to Expand Emergency Crime Provision

An employee supported by AFGE tried to expand the emergency crime provision by arguing that in addition to giving him thirty-days notice of its proposed action, the agency also was required to determine that there was reasonable cause to believe he had committed a crime. The court did not agree.

A correctional counselor represented by AFGE was unsuccessful in persuading an arbitrator and now the appeals court that the Civil Service Reform Act required the Bureau of Prisons to determine that there was reasonable cause to believe Perez had committed a crime before it could indefinitely suspend him. (Perez v. Department of Justice, C.A.F.C. No. 06-3144, 3/16/07) As the court summed up, “The arbitrator correctly rejected this contention, and we therefore affirm.” (Opinion p. 1) The facts are as reported in the court’s opinion.

Following a prison inmate’s charge that Perez had helped smuggle drugs into the prison in return for money, the Bureau sent Perez a notice of proposed indefinite suspension, which indicated it could occur no sooner than 30 days from his receipt of the notice. Good to its word, the agency issued a decision 31 days later that suspended him indefinitely. (p. 2)

Perez opted to challenge the suspension through the grievance procedure under the AFGE agreement with the agency. This ultimately led to a hearing before an arbitrator. Perez contended that the law required that to indefinitely suspend him, the agency be required to determine that there was reasonable cause to believe that Perez has committed a crime. Not so, ruled the arbitrator in denying Perez’s grievance. (Federal Mediation and Conciliation Service Case No. 05-58351, 11-15 (Dec. 9, 2005))

The Federal Circuit has now ruled in agreement with the arbitrator and rebuffed the attempt at a more expansive reading of the employee rights set forth in the Civil Service Reform Act.

Here is the language of the Reform Act spelling out one of an employee’s rights when faced with an adverse action that AFGE argued in support of its position:

“…[a]n employee against whom an action is proposed is entitled to …(1) at least 30 days’ advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action.” (5 U.S.C. § 7513(b)(1))

This is the so-called emergency “crime” provision. It sets out an expedited process that requires at least 7 days notice to the employee. In Perez’s case, he was given the full 30 days notice required under normal adverse action procedures.

Perez and the union do not dispute that his suspension met the test of promoting the efficiency of the service. Instead, they argue that the arbitrator erred in his ruling that when a 30-day notice is given, then the agency is not required to have reasonable cause to believe a crime has been committed by the employee before it can suspend him indefinitely. The appeals court rules in its 2-1 decision, “Perez’s contention finds no support in, and is inconsistent with, the structure and language of § 7513. (p. 3)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.