 United States Court of Appeals for the Federal Circuit

                                       2006-3144

                                 NORBERTO PEREZ,

                                                             Petitioner,

                                           v.

                             DEPARTMENT OF JUSTICE,

                                                             Respondent.




        Stuart A. Kirsch, American Federation of Government Employees, of Riverdale,
Georgia, filed a combined petition for panel rehearing and rehearing en banc for
petitioner. With him on the petition was Mark D. Roth, of Washington, DC.

       Michael J. Dierberg, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, filed a response to the petition
for respondent. With him on the response were Peter D. Keisler, Assistant Attorney
General, Jeanne E. Davidson, Director, and Todd M. Hughes, Assistant Director.

Appealed from: Arbitrator Decision
 United States Court of Appeals for the Federal Circuit

                                         2006-3144

                                 NORBERTO PEREZ,

                                                            Petitioner,

                                            v.

                             DEPARTMENT OF JUSTICE,

                                                            Respondent.

                       ON PETITION FOR PANEL REHEARING
                           AND REHEARING EN BANC

Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, ∗ NEWMAN, MAYER,
LOURIE, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE,
Circuit Judges.

PER CURIAM.

BRYSON, Circuit Judge, with whom MICHEL, Chief Judge, and LOURIE, RADER, and
SCHALL, Circuit Judges, join, concurs in the denial of the petition for rehearing en banc.
DYK, Circuit Judge, with whom GAJARSA and LINN, Circuit Judges, join, dissents from
the denial of the petition for rehearing en banc.

                                         ORDER

      A combined petition for panel rehearing and rehearing en banc was filed by the

Petitioner, and a response thereto was invited by the court and filed by the Respondent.

The petition for rehearing was referred to the panel that heard the appeal, and

thereafter the petition for rehearing en banc and response were referred to the circuit

judges who are authorized to request a poll whether to rehear the appeal en banc. A

poll was requested, taken, and failed.

      Upon consideration thereof,

      ∗
        Senior Judge Friedman, who was on the original panel, participated only in
decision on the petition for panel rehearing.
      IT IS ORDERED THAT:

      (1) The petition for panel rehearing is denied.

      (2) The petition for rehearing en banc is denied.

      (3) The mandate of the court will issue on November 26, 2007.



                                               FOR THE COURT


November 19, 2007                              /s/ Jan Horbaly_________
                                               Jan Horbaly
                                               Clerk


cc:   Stuart A. Kirsch, Esq.
      Michael J. Dierberg, Esq.




2006-3144                               2
 United States Court of Appeals for the Federal Circuit


                                       2006-3144

                                  NORBERTO PEREZ,

                                                 Petitioner,

                                            v.

                             DEPARTMENT OF JUSTICE,

                                                 Respondent.


BRYSON, Circuit Judge, with whom MICHEL, Chief Judge, and LOURIE, RADER, and
SCHALL, Circuit Judges, join, concurring in the denial of rehearing en banc.

      I believe the panel opinion correctly analyzes the governing legal principles that

apply to the issue before the court regarding the indefinite suspension of a federal

employee because of alleged criminal conduct.           There are other related issues

regarding such suspensions that may need to be addressed in the future, but in my view

they are not presented by the petition in this case. For those reasons, I do not favor

rehearing en banc in this case.

      It is worth reviewing the pertinent statutory provisions:

      First, the provisions of subchapter II of chapter 75 of title 5 (i.e., sections 7511

through 7514) apply to, inter alia, a suspension for more than 14 days.         5 U.S.C.

§ 7512(2). Employees who are suspended for 14 days or less are not entitled to review

by the Merit Systems Protection Board, but have rights to internal agency due process

procedures, as specified in 5 U.S.C. § 7503.
      Second, an agency cannot avoid the provisions of subchapter II, including Merit

Systems Protection Board review, simply by denominating a suspension “indefinite.” An

indefinite suspension that lasts for more than 14 days clearly falls within the scope of

section 7512(2).    This court has sensibly construed the statute to apply to such

indefinite suspensions. See Pararas-Carayannis v. Dep’t of Commerce, 9 F.3d 955,

957 n.4 (Fed. Cir. 1993); Dunnington v. Dep’t of Justice, 956 F.2d 1151, 1153 (Fed. Cir.

1992) (citing cases).

      Third, an agency may take any action covered by section 7512, including

indefinite suspensions lasting more than 14 days, only for “such cause as will promote

the efficiency of the service.” 5 U.S.C. § 7513(a).

      Fourth, when an action under section 7512 is proposed, the employee is entitled

to 30 days’ advance written notice unless there is reasonable cause to believe the

employee has committed a crime for which imprisonment may be imposed. 5 U.S.C.

§ 7513(b)(1).

      Fifth, any employee against whom an action covered by section 7512 is taken

may appeal to the Merit Systems Protection Board. 5 U.S.C. § 7513(d).

      Sixth, when an employee takes a Board appeal from an action falling within

section 7512, the agency’s decision must be “supported by a preponderance of the

evidence” in order for the Board to sustain the agency action. 5 U.S.C. § 7701(c)(1)(B).

      This statutory scheme establishes two important, independent principles: First,

any employee who is suspended for more than 14 days may appeal to the Merit

Systems Protection Board, at which point the employing agency has the burden of

showing by a preponderance of the evidence that the employee’s suspension promoted




2006-3144                                   2
the efficiency of the service. 5 U.S.C. § 7513(a). Second, and separately, the agency

may initiate such a suspension without providing the statutory 30 days’ written notice if

the agency has reasonable cause to believe the employee has committed a crime. 5

U.S.C. § 7513(b)(1).    Thus, regardless of whether the agency has invoked its right

under section 7513(b)(1) to avoid the 30-day notice requirement, the agency still has to

satisfy the requirement of section 7513(a) to show that the suspension promoted the

efficiency of the service. That requirement applies to every suspension, without regard

to whether the suspension in question is based on alleged criminal conduct, and without

regard to whether the agency has invoked the “reasonable cause” provision of section

7513(b)(1) to bypass the 30-day notice requirement. I understand the panel opinion to

embrace this interpretation of sections 7513(a) and 7513(b)(1).       I certainly do not

interpret the panel opinion to suggest that a suspension based on alleged criminal

conduct need not be justified at all as long as the employing agency gives the employee

30 days’ notice of its intention to suspend him.

       In prior cases discussed by the panel majority and dissent, beginning with the

Dunnington case, this court has made statements that suggest a different approach.

For example, in Pararas-Caryannis v. Department of Commerce, 9 F.3d 955, 957 (Fed.

Cir. 1993), the court stated that “[i]n order for the MSPB to sustain an indefinite

suspension, the agency must establish by a preponderance of the evidence that it had

reasonable cause to believe the employee committed a crime for which imprisonment

may be imposed.” See also Richardson v. U.S. Customs Serv., 47 F.3d 415, 419 (Fed.

Cir. 1995).   That statement seems to me to conflate the requirements of sections

7513(a) and 7513(b), even though those two provisions address entirely different




2006-3144                                    3
matters—in the first, what is required to sustain a suspension (section 7513(a)), and in

the second, what is required to bypass the 30-day notice requirement (section

7513(b)(1)). The problem with conflating those two requirements was not highlighted in

those prior cases, because in each of them the suspension was imposed without

observance of the 30-day notice requirement, and it was thus proper for the court to

focus, at least for purposes of the notice provision, on whether the “reasonable cause”

requirement of section 7513(b)(1) was satisfied. But the problem with that approach is

clear in a case such as this one, where the 30-day notice requirement was satisfied.

Applying the approach used in the Dunnington line of cases to this case would seem to

import the “reasonable cause” requirement from a statutory provision—section

7513(b)(1)—that is inapplicable on its face to the suspension at issue. Moreover, that

approach would result in imposing different proof requirements on the agency

depending on whether the suspension was denominated “indefinite” and whether the

conduct that gave rise to the suspension is alleged to be criminal.

      Thus, in the Dunnington line of cases this court has stated that indefinite

suspensions based on alleged criminal conduct can be sustained if the agency can

show reasonable cause to believe the criminal conduct occurred. Dunnington, 956 F.2d

at 1156 (“facts [supporting suspension] must be sufficient to meet the statutory test of

reasonable cause”); Pararas-Carayannis, 9 F.3d at 957 (“the agency must establish by

a preponderance of the evidence that it had reasonable case to believe the employee

committed a crime for which imprisonment may be imposed”); Richardson, 47 F.3d at

419 (section 7513(b) “is read as establishing an independent standard for a limited

adverse action”); Morrison v. Nat’l Science Found., 423 F.3d 1366, 1368-69 n.* (Fed.




2006-3144                                   4
Cir. 2005) (section 7513(b)(1) reasonable cause standard “has been applied as well to

the agency’s decision to impose an indefinite suspension”). Yet outside the context of

indefinite suspensions imposed without 30 days’ notice, this court has repeatedly held

that disciplinary actions can be upheld only if the agency can show by a preponderance

of the evidence that the employee has committed all the elements of the charged act.

See King v. Nazelrod, 43 F.3d 663, 666 (Fed. Cir. 1994); Jacobs v. Dep’t of Justice, 35

F.3d 1543, 1546-47 (Fed. Cir. 1994); Dixon v. Dep’t of Transp., 8 F.3d 798, 803 (Fed.

Cir. 1993); Burroughs v. Dep’t of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990); Naekel

v. Dep’t of Transp., 782 F.2d 975, 977 (Fed. Cir. 1986); Hale v. Dep’t of Transp., 772

F.2d 882, 885 (Fed. Cir. 1985). That rule has been applied to all forms of disciplinary

action covered by section 7512, and it has been applied to criminal as well as non-

criminal conduct, as the cited cases make clear.           The statutory analysis in the

Dunnington line of cases therefore leads to an apparent conflict with the broader line of

cases involving the requirement that disciplinary charges be sustained by a

preponderance of the evidence. 1

       The apparent conflict between these two lines of cases is not addressed or

resolved in the panel opinion and will likely require further attention in future cases. The

       1
              Apart from the fact that we have regularly applied the preponderance
standard to proof of conduct that is the basis for disciplinary action, even when that
conduct is criminal, it would be odd to apply a different ultimate burden of proof
depending on whether the charged conduct constituted a crime for which imprisonment
could be imposed. Suppose, for example, an employee is suspended for assaulting a
co-worker. Should the standard of proof to sustain the disciplinary action depend on
whether the charged conduct would be an imprisonable crime under applicable state or
federal law? If so, the standard of proof could end up turning on whether the conduct
qualified as aggravated assault rather than simple assault. Or, if the discipline was
imposed for theft, the standard of proof could depend on whether the amount taken
constituted grand larceny under the particular state’s law or merely petty larceny. That
makes no sense, and it is certainly not dictated by anything in section 7513.


2006-3144                                    5
conflict does tend to demonstrate, however, that the approach taken in the panel

opinion—construing section 7513(b)(1) to set forth the circumstances needed to justify

overriding the 30-day notice requirement and not the degree of proof ultimately needed

to justify the suspension itself—is the correct one. Because the panel opinion and the

petition for rehearing, as I read them, are limited to addressing that narrow question and

do not address broader issues such as those adverted to above, I do not favor granting

rehearing en banc to address them.




2006-3144                                   6
 United States Court of Appeals for the Federal Circuit
                                        2006-3144

                                   NORBERTO PEREZ,

                                                               Petitioner,

                                             v.


                              DEPARTMENT OF JUSTICE,

                                                               Respondent.


DYK, Circuit Judge, with whom GAJARSA and LINN, Circuit Judges, join, dissenting
from denial of rehearing en banc.

        I respectfully dissent from the denial of rehearing en banc in this case. This case

presents an important issue—whether, apart from section 7513(b)(1), an agency must

have reasonable cause before it may impose an indefinite suspension (lasting more

than fourteen days) pending an investigation. The majority’s decision here rests on its

holding that the employee failed to raise this reasonable cause issue, when in my view

the issue was squarely raised. While unfair to the particular employee, correction of this

error may not warrant en banc review. However, in my view en banc consideration is

warranted because the majority’s decision here has created confusion in an important

area.

        The majority made clear that it did not interpret 5 U.S.C. § 7513(b)(1) to require

reasonable cause when an agency gives an employee more than thirty days’ notice of

an indefinite suspension. Perez v. Dep’t of Justice, 480 F.3d 1309, 1311 (Fed. Cir.

2007). The majority’s opinion is unclear, however, as to whether another provision

imposes a reasonableness requirement.         For example, the opinion appears to leave
open whether section 7513(a), stating that the agency action shall be taken “only for

such cause as will promote the efficiency of the service,” might a require reasonable

basis to support an indefinite suspension. The majority notes that “[a]rbitrary action

against an employee would not satisfy that standard.” Perez, 480 F.3d at 1313. As

noted in my panel dissent, I think the answer is clear and uncomplicated: a reasonable

basis, or reasonable cause, requirement is applicable to all indefinite suspensions

lasting more than fourteen days, and necessarily follows from the agency’s admitted

obligation to avoid arbitrary action. In order to support an indefinite suspension pending

investigation there is no requirement that the agency establish by a preponderance of

the evidence that the employee committed the act being investigated (regardless of

whether the conduct charged is a crime), but there is a requirement that the agency

have reasonable cause to conclude that the employee did so.

       The confusion is compounded by the majority’s statement that the conclusion in

our prior cases—that reasonable cause is required—was merely dictum. In my view our

previous decisions have in fact held that “[i]n order for the MSPB to sustain an indefinite

suspension, the agency must establish by a preponderance of the evidence that it had

reasonable cause to believe the employee committed a crime for which imprisonment

may be imposed.” Pararas-Carayannis v. Dep’t of Commerce, 9 F.3d 955, 957 (Fed.

Cir. 1993); see also Morrison v. Nat’l Sci. Found., 423 F.3d 1366, 1368-69 n.* (Fed. Cir.

2005) (“[T]he same standard—that there is reasonable cause to believe the employee

committed a crime for which a sentence of imprisonment may be imposed—has been

applied as well to the agency’s decision to impose an indefinite suspension.”). The

majority’s characterization of the holdings in those cases as dicta is, of course, itself




2006-3144                                   2
dictum, but the majority’s dictum has unfortunately cast doubt on the continued vitality of

those earlier decisions.

       In my view, the panel opinion here will lead to unnecessary confusion as to what

is required of an agency before it may indefinitely suspend an employee. Although I

would grant en banc review in this case, I welcome Judge Bryson’s view expressed in

his concurrence that the court must address these issues in a future case. One may

hope that this will happen sooner rather than later given the importance of the standards

for indefinite suspensions pending investigation.




2006-3144                                   3
