Possession With Intent to Distribute Cocaine Leads to Suspension

A housekeeping aid at a VA medical center was indefinitely suspended following his indictment on four counts, including possession with intent to distribute cocaine.

Here’s an appeals court decision involving a housekeeping aid at a VA medical center who was indefinitely suspended following his indictment on four counts, including possession with intent to distribute cocaine and driving with a suspended license. (Harding v. Department of  Veterans Affairs, CAFC No. 2011-3091 (nonprecedential), 12/13/11)

Harding is employed at the Fayetteville VA Medical Center in North Carolina. Following his arrest and indictment, the VA notified Harding that it proposed to indefinitely suspend him “pending the investigation into his criminal conduct because the indictments provided reasonable cause to believe that …[he] might be guilty of a crime for which a sentence of imprisonment may be imposed.” (Opinion p. 2)

A couple of weeks later, the agency did in fact suspend Harding indefinitely.

On appeal to the Merit Systems Protection Board, the administrative judge reversed the suspension and ordered Harding reinstated because the suspension did not have an “ascertainable end.” (p. 2)

The agency took its case to the full MSPB. Harding was given a period to respond to the agency’s petition. More than a week after his deadline, Harding filed a motion to dismiss the agency’s petition because the agency had failed to grant the interim relief ordered up by the AJ. He followed this up with several submissions adding various arguments and evidence to the mix. The MSPB refused to consider any of it since it was filed late. The Board reversed the AJ and sustained Harding’s indefinite suspension, finding it did have an ascertainable end—it was “the resolution of the criminal proceedings that are the grounds for the suspension.” (p. 3) Since the agency had presented an SF50 showing that Harding had been returned to a pay status as ordered by the AJ, the Board held that the agency had met its interim relief requirements. (p. 3)

The appeals court has now sustained the MSPB. As the court noted, “While the better practice would be for the agency to explicitly the condition subsequent, what is necessary for a valid indefinite suspension is only that such a condition exists…” it was within the Board’s discretion to find that the ascertainable end had been sufficiently set forth by the VA in this case. (p. 4)

The court further found no fault in the Board’s refusal to consider Harding’s numerous late filings.

Indefinite suspensions under the so-called “crime” provision can be tricky. This case illustrates the need to be as specific as possible in defining the “ascertainable end” for the suspension in a way that all can clearly understand.

Harding v. Department of Veterans Affairs

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.