BRYSON, Circuit Judge, with whom MICHEL, Chief Judge, and LOURIE, RADER, and SCHALL, Circuit Judges, [1020]*1020join, 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
PER CURIAM.
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,
IT IS ORDERED THAT:
(1) The petition for panel rehearing is denied.
(2) The petition for rehearing en banc is denied.
(8) The mandate of the court will issue on November 26, 2007.
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 aha, 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).
[1021]*1021Sixth, 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 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-Carayannis 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 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.
Free access — add to your briefcase to read the full text and ask questions with AI
BRYSON, Circuit Judge, with whom MICHEL, Chief Judge, and LOURIE, RADER, and SCHALL, Circuit Judges, [1020]*1020join, 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
PER CURIAM.
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,
IT IS ORDERED THAT:
(1) The petition for panel rehearing is denied.
(2) The petition for rehearing en banc is denied.
(8) The mandate of the court will issue on November 26, 2007.
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 aha, 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).
[1021]*1021Sixth, 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 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-Carayannis 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 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 Dun-nington 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 sus[1022]*1022pensions 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.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 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.