                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     BRIAN BONETTO,                                  DOCKET NUMBER
                  Appellant,                         DE-0752-13-0228-I-2

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: February 6, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Joy Bertrand, Esquire, Scottsdale, Arizona, for the appellant.

           Steven R. Simon, Esquire, Phoenix, Arizona, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER
¶1        The appellant has filed a petition for review of the initial decision, which
     affirmed his indefinite suspension based on the agency’s belief that he had
     committed a crime after he was indicted in federal district court. Generally, we
     grant petitions such as this one only when: the initial decision contains erroneous


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                            2

     findings of material fact; the initial decision is based on an erroneous
     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the judge’s rulings during either the course of the appeal or
     the initial decision were not consistent with required procedures or involved an
     abuse of discretion, and the resulting error affected the outcome of the case; or
     new and material evidence or legal argument is available that, despite the
     petitioner’s due diligence, was not available when the record closed. See Title 5
     of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
     After fully considering the filings in this appeal, and based on the following
     points and authorities, we conclude that the petitioner has not established any
     basis under section 1201.115 for granting the petition for review. Therefore, we
     DENY the petition for review and AFFIRM the initial decision, which is now the
     Board’s final decision. 5 C.F.R. § 1201.113(b).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant is a GL-09 Sports Specialist at a federal correctional facility.
     MSPB Docket No. DE-0752-13-0228-I-1 (I-1), Initial Appeal File (IAF), Tab 8 at
     9.   On January 15, 2013, a federal grand jury indicted him for obstruction of
     justice under 18 U.S.C. § 1519 for knowingly making a false record entry
     regarding the use of force during an incident that occurred while he was on duty.
     I-1, IAF, Tab 9 at 6-8. On January 18, 2013, the agency proposed to indefinitely
     suspend the appellant because, based on the indictment, the proposing official had
     reason to believe that the appellant had committed a crime. 2 I-1, IAF, Tab 8 at


     2
       The notice specified that the proposal was being issued under the authority of 5 C.F.R.
     § 752.404(d), which provides for a shortened notice period where the agency has
     “reasonable cause to believe that the employee has committed a crime for which a
     sentence of imprisonment may be imposed.” I-1, IAF, Tab 8 at 25; see 5 C.F.R.
     § 752.404(d). Although the agency originally allowed the appellant 7 days to tender to
     a response, I-1, IAF, Tab 8 at 26, it subsequently granted him an extension to respond
     on or before February 22, 2013, id. at 20. The appellant submitted a written response
     on February 15, 2013. I d. at 14-19.
                                                                                          3

     25-27.    On February 22, 2013, the agency imposed the indefinite suspension,
     which the appellant timely appealed to the Board. Id. at 10-12; I-1, IAF, Tab 1. 3
     On January 8, 2014, the criminal charges were dismissed without prejudice, and
     the agency returned the appellant to work on January 10, 2014. I-2, IAF, Tab 14
     at 5-7.
¶3         After holding a hearing, the administrative judge affirmed the indefinite
     suspension, finding that the suspension was valid and that the appellant had failed
     to prove that his due process rights were violated.        I-2, IAF, Tab 31, Initial
     Decision (ID). The appellant has filed a petition for review, and the agency has
     responded in opposition. I-2, Petition for Review (PFR) File, Tabs 3, 7.
¶4         To sustain an indefinite suspension, the agency must show: (1) there is
     reasonable cause to believe that the employee committed a crime for which a term
     of imprisonment may be imposed; (2) the suspension has an ascertainable end,
     i.e., a determinable condition subsequent that will bring the suspension to a
     conclusion; (3) the suspension bears a nexus to the efficiency of the service; and
     (4) the penalty is reasonable. Albo v. U.S. Postal Service, 104 M.S.P.R. 166,
     ¶¶ 6-7 (2006). The administrative judge found that all of the above criteria were
     met in this case. ID at 4-9.
¶5         The appellant does not dispute, and we see no reason to disturb, the
     administrative judge’s findings that the agency had reasonable cause to believe
     that the appellant had committed a crime for which a term of imprisonment may
     be imposed and that there is a nexus between the criminal charge and the
     efficiency of the service. See PFR File, Tab 3. Rather, the appellant challenges
     the administrative judge’s findings that the indefinite suspension had an
     ascertainable end and was reasonable. Id. at 9-11. He further argues that, even if


     3
       Due to the ongoing criminal proceedings, the admin istrative judge dism issed the
     appeal without prejudice to refile, I-1, IAF, Tab 14, Initial Decision, and refiled the
     appeal sua sponte 6 months later, MSPB Docket No. DE-0752-13-0228-I-2 (I-2), IAF,
     Tab 1.
                                                                                       4

     the agency initially had an adequate basis to suspend him, it was obligated to
     reinstate him prior to the conclusion of the criminal proceedings when it became
     aware that the prosecution’s case lacked merit. Id. at 10-11. Lastly, the appellant
     argues that the administrative judge erroneously determined that he had failed to
     prove that his due process rights were violated. Id. at 11-18.

     The administrative judge properly determined that the indefinite suspension had
     an ascertainable end.
¶6        To be valid, an indefinite suspension must have an ascertainable end.
     Harding v. Department of Veterans Affairs, 115 M.S.P.R. 284, 290, ¶ 15 (2010)
     aff’d, 451 F. App’x 947 (Fed. Cir. 2011).          The appellant argues that the
     suspension could have continued in perpetuity because the decision letter and
     proposal notice provided that the suspension would remain in place until
     resolution of the criminal case and/or until there was sufficient evidence to either
     return him to duty or to support an administrative action against him. See PFR
     File, Tab 3 at 11; I-1, IAF, Tab 8 at 11, 27. It is well settled, however, that an
     agency may continue an indefinite suspension after resolution of criminal charges
     in an employee’s favor where the agency provides advance notice of possible
     administrative action in the suspension proposal or decision notice and takes
     action within a reasonable time of the conclusion of the criminal proceedings.
     Camaj v. Department of Homeland Security, 119 M.S.P.R. 95, ¶ 11 (2012).
     Nevertheless, an agency must provide reinstatement to the date of the resolution
     of criminal charges in an appellant’s favor if it fails to implement an adverse
     action within a reasonable time. Id. In the instant case, the agency provided the
     appellant notice that the indefinite suspension could extend beyond the resolution
     of the criminal charges and ultimately reinstated him within 2 days of the
     dismissal of the criminal charges. See I-2, IAF, Tab 14 at 5-7. Accordingly, the
     indefinite suspension had an ascertainable end and the agency properly reinstated
     the appellant within a reasonable time after resolution of the criminal case.
                                                                                      5

     The administrative judge properly determined that an indefinite suspension was
     reasonable under the circumstances.
¶7        The Board will review an agency-imposed penalty only to determine if the
     agency considered all the relevant factors and exercised management discretion
     within tolerable limits of reasonableness. Douglas v. Veterans Administration,
     5 M.S.P.R. 280, 306 (1981). Relevant factors include the nature and seriousness
     of the offense, the employee’s past disciplinary record, the supervisor’s
     confidence in the employee’s ability to perform his assigned duties, the
     consistency of the penalty with the agency’s table of penalties, the consistency of
     the penalty with those imposed on other employees for the same or similar
     offenses, and the adequacy of alternative sanctions.     Lewis v. Department of
     Veterans Affairs, 113 M.S.P.R. 657, ¶ 5 (2010); Douglas, 5 M.S.P.R. at 305-06.
     Not all of the factors will be pertinent in every instance, and so the relevant
     factors must be balanced in each case to arrive at the appropriate penalty. Lewis,
     113 M.S.P.R. 657, ¶ 5; Douglas, 5 M.S.P.R. at 306. The Board will modify a
     penalty only when it finds that the agency failed to weigh the relevant factors or
     that it clearly exceeded the bounds of reasonableness in determining the penalty.
     Douglas, 5 M.S.P.R. at 306
¶8        The appellant argues that the administrative judge erred in finding that the
     indefinite suspension was reasonable because the deciding official “affirmatively
     refused” to consider any of the Douglas factors and relied exclusively on the
     agency “practice” of “summarily suspending all employees[] who are indicted.”
     PFR File, Tab 3 at 7, 9-10. Although the term “Douglas factors” does not appear
     in the decision letter, it is clear that the deciding official considered several
     relevant Douglas factors, including the nature and seriousness of the offense and
     its relation to the appellant’s duties. I-1, IAF, Tab 8 at 11; see ID at 8. In the
     decision letter, the deciding official explained that, as a federal law enforcement
     officer, the allegations set forth in the indictment undermined the appellant’s
     responsibilities as a correctional worker, which included supervising and caring
                                                                                              6

      for the inmates, enforcing rules and regulations, and serving as a role model to all
      of the staff. I-1, IAF, Tab 8 at 11. He noted that the appellant was expected to
      obey the letter and spirit of the law and to avoid any action that could adversely
      affect the public’s confidence in the integrity of the federal government.             Id.
      Given the nature of the allegations and the appellant’s responsibilities and duties,
      the deciding official concluded that the allegations contained in the indictment
      were serious.    Id.   Although the deciding official considered the appellant’s
      acceptable performance as a mitigating factor, he found that it did not outweigh
      the seriousness of the indictment. Id. Based on the allegations in the indictment,
      the deciding official concluded that the agency could not risk the appellant’s
      continued presence in the workplace and that he could not be entrusted with the
      care and custody of inmates unless he was cleared of the charges. Id. At the
      hearing, the deciding official testified that the prison did not have any non-law
      enforcement positions or positions without any inmate contact that the appellant
      could have been placed in rather than being indefinitely suspended. 4 See ID at 9.
¶9          In light of the above, we agree with the administrative judge’s finding that
      the agency responsibly exercised its managerial judgment and that an indefinite
      suspension was not unreasonable.

      The administrative judge correctly found that the agency was not obligated to
      return the appellant to duty prior to the resolution of the criminal charges.
¶10         The appellant argues that the agency should have reinstated him when it
      became aware that the indictment supporting the suspension was “not well


      4
        The administrative judge credited this testimony as it was further corroborated by a
      human resources manager and was not disputed by any other witness. ID at 8. The
      appellant does not challenge the administrative judge’s credib ility determination, and
      we find no reason to disturb it on review. See PFR File, Tab 3. The Board must give
      deference to an administrative judge’s credibility determ inations when, as here, they are
      based, explicitly or implicitly, on the observation of the demeanor of witnesses
      testify ing at a hearing; the Board may overturn such determ inations only when it has
      “sufficiently sound” reasons for doing so. See Haebe v. Department of Justice,
      288 F.3d 1288, 1302 (Fed. Cir. 2002).
                                                                                      7

      supported” and that the “prosecution against [him] was falling apart.” PFR File,
      Tab 3 at 10-11.    Where an indefinite suspension based on an indictment was
      proper when effected, however, the indefinite suspension will remain proper as
      long as that indictment remains outstanding.      Jarvis v. Department of Justice,
      45 M.S.P.R. 104, 109 (1990); see Camaj, 119 M.S.P.R. 95, ¶¶ 9-10.         For the
      reasons discussed above and as the administrative judge determined, the agency
      properly imposed the indefinite suspension; accordingly, it remained proper so
      long as the criminal matter based on the indictment was pending. See ID at 4-9.
      Thus, the agency had no obligation to independently evaluate the merits of the
      criminal case or to rescind the suspension due to any perceived weakness in the
      prosecution of the case. See ID at 4-5.

      The administrative judge correctly determined that the appellant failed to prove
      his affirmative defense.
¶11        Lastly, the appellant argues that the agency’s investigation into the use of
      force incident violated his constitutional due process rights to notice and
      warnings against self-incrimination, as well as his right to union representation
      during questioning.     PFR File, Tab 3 at 11-18.        Thus, he continues, the
      prosecution was “illegitimate,” and the suspension premised on the indictment
      violated his due process rights and was illegal. Id. at 17-18. The administrative
      judge rejected the appellant’s affirmative defense and noted that such arguments
      were inappropriate in this forum as they would require the agency to second guess
      the prosecution’s decision in the ongoing criminal complaint. See ID at 10 (citing
      Jarvis, 45 M.S.P.R. at 109). We agree. A grand jury indictment is a conclusive
      determination of the issue of reasonable cause in this context, and the agency is
      not required to “look behind an indictment” to ensure it is proper or founded upon
      sufficient proof. Dalton v. Department of Justice, 66 M.S.P.R. 429, 436 (1995).
      Accordingly, we find that the administrative judge correctly determined that the
      appellant has failed to prove his affirmative defense.
                                                                                  8

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court’s "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           9

Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
