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Indefinite suspension after indictment upheld by Federal Circuit

A Veterans Affairs employee recently appealed his indefinite suspension beyond the Merit Systems Protection Board to the federal courts. Unfortunately for this employee, his appeal was unsuccessful, but federal employees should know that there appeals both within and beyond the MSPB.

The employee's theory before the court in this case was interesting. The man, a GS-13 program analyst who works for the VA's Health Eligibility Center in Atlanta, was suspended indefinitely due to a grand jury indictment. He was indicted on 50 counts of making false statements.

Being indicted for an offense that may be punishable by fines or imprisonment generally does provide good cause for suspension until the allegations are resolved. However, the man in this case felt strongly that he did not receive sufficient due process.

He contended that the VA was responsible for the indictment. According to the worker, employees of the agency procured the indictment by making vague allegations against him.

The real issue, the man claimed, is an employment dispute. In July 2015, he ordered his employees to close over 2,700 unresolved veteran authorizations even though he knew the agency hadn't completed the consultations. VA employees testified about this before a grand jury, which indicted the man.

To allow the VA to suspend him after its own employees were responsible for the underlying indictment, the man argued, was to make the grand jury into a mere "catspaw" of the agency.

The man appealed his suspension to an administrative law judge at the MSPB, who upheld the VA's decision. The full board also upheld the suspension.

Further, the board rejected his due process claim after ruling that the VA had given him adequate notice of the charges and a reasonable chance to respond before the agency suspended him.

The U.S. Court of Appeals for the Federal Circuit ruled that the VA had acted appropriately.

What happens when federal employees are suspended for possible criminal behavior?

When federal employees are indicted for crimes, they are placed on indefinite suspension until the criminal allegations are resolved. They do not receive pay during this period -- and they don't receive back pay even if they're cleared. Unfortunately, the government has the right to withhold pay under these circumstances. If the person is ultimately cleared, they typically get to return to work.

In this particular case, the employee was found guilty on all counts and sentenced to 27 months behind bars.

If you are a federal employee and are charged with a crime, you can also face employment consequences. A federal employment law attorney can protect your rights and will fight to minimize any negative consequences.

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