                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     GERALD NICHOLSON,                               DOCKET NUMBER
                  Appellant,                         NY-0752-14-0182-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: February 3, 2015
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Thomas Tierney, Esquire, Norwalk, California, for the appellant.

           Christina Anne Cotter, Esquire, Washington, D.C., 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
     sustained his indefinite suspension. Generally, we grant petitions such as this one
     only when: the initial decision contains erroneous findings of material fact; the
     initial decision is based on an erroneous interpretation of statute or regulation or

     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2        On November 12, 2013, the agency proposed to indefinitely suspend the
     appellant from his Immigration Enforcement Agent position following his arrest
     and arraignment on criminal charges. Initial Appeal File (IAF), Tab 8 at 105-10.
     On the same day, the agency also proposed to remove the appellant for conduct
     unrelated to the criminal charge.    Id. at 130-41.    The agency sustained and
     imposed the indefinite suspension effective November 28, 2013. IAF, Tab 1 at
     7-12, Tab 8 at 92-93. The suspension proposal and decision letters informed the
     appellant that the suspension would remain in effect until the later of the
     following occurred: (1) there was a disposition of the criminal charges pending
     against him; (2) there was sufficient evidence to return him to duty or support an
     administrative action against him; or (3) he entered a plea of guilty. IAF, Tab 1
     at 8, Tab 8 at 105.       They also notified him that, “if investigation and
     administrative determination so warrant, [his] removal from the Agency may be
     proposed while [he is] in an indefinite suspension status.” IAF, Tab 1 at 8, Tab 8
     at 105. On January 14, 2014, the appellant entered into a plea agreement with a
     stipulation of no jail time and pleaded guilty to criminal contempt in the second
     degree. IAF, Tab 17 at 41; see IAF, Tab 13 at 5. The appellant’s sentencing date
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     was scheduled for March 18, 2014. IAF, Tab 17 at 41. On February 7, 2014, the
     agency rescinded the November 12, 2013 proposed removal letter and issued a
     second proposed removal letter, which contained the same charges as the previous
     removal letter and included a new specification related to the appellant’s criminal
     conduct. IAF, Tab 19 at 12-23.
¶3           On February 13, 2014, the appellant filed an appeal and requested a hearing.
     IAF, Tab 1 at 1-6. He asserted that the agency had failed to end the indefinite
     suspension within a reasonable time after being notified of the resolution of the
     pending criminal charges through the plea agreement. Id. at 4. He later withdrew
     his request for a hearing. IAF, Tab 13 at 4, 6. Based on the written record, the
     administrative judge issued an initial decision affirming the continuation of the
     appellant’s indefinite suspension after the execution of the plea agreement. IAF,
     Tab 22, Initial Decision (ID) at 1-2, 16.
¶4           The appellant has filed a petition for review of the initial decision. Petition
     for Review (PFR) File, Tab 1. The agency has filed a response in opposition to
     the appellant’s petition for review. PFR File, Tab 3.
¶5           In his petition for review, the appellant argues that the agency improperly
     placed him on an indefinite suspension with the intent “to punish him and cripple
     him financially” so that he would not be able to defend himself against the
     agency’s pending removal action. PFR File, Tab 1 at 7. He further alleges that
     the agency had already made the decision to remove him based on conduct
     unrelated to the criminal charge because “[t]he investigation in the removal action
     was already complete at the time the Agency concurrently issued the proposal to
     indefinitely suspend the Appellant.” Id. Consequently, he requests the Board to
     “overturn the indefinite suspension placed upon the Appellant in its entirety.” Id.
     at 8.
¶6           The appellant does not provide any evidence for his contention that the
     agency had an improper purpose for the indefinite suspension.            See id. at 7.
     Additionally, he fails to prove that the agency had already made the decision to
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     remove him based on grounds unrelated to the criminal charge at the time the
     agency proposed the indefinite suspension. See id. The mere fact that the agency
     proposed the appellant’s removal based on conduct unrelated to the criminal
     charge, without further support, does not show that the agency had already
     decided to remove the appellant. See Cruz v. Department of the Navy, 934 F.2d
     1240, 1243 (Fed. Cir. 1991) (en banc) (finding that mere proposals to remove are
     not appealable adverse actions in themselves and the Board has no jurisdiction
     over them). Furthermore, an employee against whom an action is proposed is
     entitled to certain procedures before an agency makes a decision, thereby
     providing a possibility that the agency may not sustain the proposed action.
     5 U.S.C. § 7513(b); 5 C.F.R. § 752.404. The appellant also does not explain how
     the agency’s rescission of the first proposed removal and issuance of the second
     proposal for removal “in which the underlying criminal charges constituted less
     than four percent of the listed specifications” proves that the imposition of the
     indefinite suspension was improper.    PFR File, Tab 1 at 7; see Lemal v. U.S.
     Postal Service, 79 M.S.P.R. 241, ¶ 4 (1998) (it is well-settled that it is not
     unlawful or grounds for alleging error for an agency to refile the same charge
     against an employee included in a previous, rescinded adverse action).
¶7        Finally, the appellant cites to several Board cases to support his claim that
     the agency “has a history of abusing the indefinite suspension mechanism in order
     to financially devastate Appellants they intend to remove in the near future.”
     PFR File, Tab 1 at 7-8 (citing Camaj v. Department of Homeland Security,
     119 M.S.P.R.   95   (2012);   Hodge   v.   Department   of   Homeland     Security,
     114 M.S.P.R. 636 (2010); Gonzalez v. Department of Homeland Security,
     114 M.S.P.R. 318 (2010)).     These cases do not compel a different outcome
     because they are factually distinguishable from the instant case.        In Camaj,
     119 M.S.P.R. 95, ¶¶ 12-13, the agency continued an indefinite suspension beyond
     the resolution of the employee’s criminal charges in order to conduct an
     investigation into separate noncriminal matters.   In Hodge, 114 M.S.P.R. 636,
                                                                                      5

     ¶¶ 2, 7, and Gonzalez, 114 M.S.P.R. 318, ¶¶ 7, 13, 23, 28, the agency initiated
     suspensions based on the existence of an open agency investigation into
     allegations of off-duty misconduct.        In contrast, the continuation of the
     appellant’s suspension is entirely consistent with Engdahl v. Department of the
     Navy, 900 F.2d 1572, 1578 (Fed. Cir. 1990). In Engdahl, our reviewing court
     held that an indefinite suspension may be continued after an employee’s guilty
     pleas where the agency provides advanced 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. Id. The appellant
     failed to provide any reason to disturb the administrative judge’s finding that the
     indefinite suspension continued for a reasonable time after the agency received a
     copy of the plea agreement. See ID at 10-12.
¶8        To the extent that the appellant’s conclusory statement that the indefinite
     suspension should be overturned “in its entirety” is a challenge to whether the
     action was properly initiated, we decline to address it further.    See PFR File,
     Tab 1 at 8. The appellant raises this argument for the first time on review despite
     clearly stating below his intention to contest only the continuation of the
     indefinite suspension beyond the date he entered into a plea agreement, and not
     the imposition of the suspension itself. IAF, Tab 13 at 4, Tab 16 at 1, Tab 18
     at 4; see ID at 1 n.1, 9. Moreover, the appellant has not shown that this argument
     is based on new and material evidence that was previously unavailable when the
     record closed despite his due diligence.    See 5 C.F.R. § 1201.115(d); see also
     Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).

                     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:
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                           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
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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.
