Indefinite Suspension: Administrative Double Jeopardy?

The Department of Homeland Security, U.S. Immigration and Customs Enforcement imposed a first indefinite suspension on Frederick, a Supervisory Immigration Enforcement Agent. Relying on the same investigation and facts underlying the first indefinite suspension, the agency imposed a second indefinite suspension on Frederick for different days. Frederick appealed the second suspension as being “administrative double jeopardy.” Opinion, p. 3. The Administrative Judge sustained the second indefinite suspension. The Board granted review.

The Board discussed the well-established principle of civil service law that an agency may not discipline an employee twice for the same misconduct. Westbrook v. Department of the Air Force, 77 M.S.P.R. 149, 155 (1997) (citing Adamek, 13 M.S.P.R. at 226). Opinion, p. 5, ¶6. There is a “bar against double punishment” and the same set of facts underlying one punishment cannot be the same for a subsequent punishment. Id.

The Board went on to specify that it “must look to the factual specifications supporting the charges levied against an employee, i.e., the underlying ‘cause’” to determine whether an employee is being punished twice for the same misconduct. Id. p. 7, ¶9. The Board clarified that comparison of charges is not sufficient to ascertain this. Id.

Distinguishing the instant case to Nguyen v. Department of Homeland Security, 737 F.3d 711, 717 (Fed. Cir. 2013), the Board pointed out that in Nguyen, the agency did not subject the employee to double punishment because the first adverse action was based on “the employee’s substantive misconduct” and the second adverse action was based on “the separate, independent conclusion that the employee was Giglio impaired.” Id., p. 9, ¶10.

The Board further found that once the agency cited and relied upon the issuance of the warrant for the appellant’s arrest in its first decision to impose an indefinite suspension, it was precluded from citing and relying upon this same factual specification a second time. Id. This is despite the fact that the charge relied upon by the agency in the second indefinite suspension differed from the charge supporting the first indefinite suspension. Id., p. 11, ¶13.

The Board made clear however, that an agency is not precluded from indefinitely suspending an employee based upon reasonable cause to believe he has committed a crime for which a sentence of imprisonment could be imposed and thereafter proposing to remove him based upon either his subsequent criminal conviction or his underlying misconduct. See Campbell v. Defense Logistics Agency, 31 M.S.P.R. 691, 694-95 (1986) cited in Opinion, p. 12, ¶14. It also clarified that past discipline could continue to be used as an aggravating factor in determining the reasonableness of a penalty under Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). Id., p. 13, ¶15. Additionally, an agency can also rescind a prior adverse action, make the employee whole, and commence an “entirely new” constitutionally correct proceeding, thus negating the first disciplinary action. Ward v. U.S. Postal Service, 634 F.3d 1274, 1279 cited in Opinion, p. 13, ¶15.

The Board did not sustain the second indefinite suspension.

Frederick v. Department of Homeland Security, 2015 MSPB 11 (February 10, 2015)