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By: FEDweek StaffIn the latest of a series of decisions backing broader readings of federal employee appeal rights, the MSPB said it has jurisdiction to hear a challenge of a suspension that was shorter than the 14-day threshold for review.
In Case No. 2022 MSPB 12, the board found that the suspension was an extension of a previous one and that the two should be combined. The case involved an employee who was put on an indefinite suspension pending the resolution of an issue regarding his security clearance, which was needed to perform the position. The issue was resolved in the employee’s favor but the employee was not ordered restored to his position until 13 days afterward.
The MSPB first held that although the agency later recharacterized that period as leave without pay, it was a suspension for appeal rights purposes. Further, it said, “Both the imposition of an indefinite suspension – and the continuation of that suspension after the condition subsequent – concern the same personnel action; thus, the appeal of the continuation of a suspension relates to the entire suspension for jurisdictional purposes.”
“As such, the length of the entire indefinite suspension is considered in determining if the Board has jurisdiction over the continuation of an indefinite suspension, regardless of whether the subject matter of an appeal concerning the continuation of an indefinite suspension is a suspension of 14 days or fewer,” it said.
The board sent the case back to a hearing officer, though, to consider whether the employee’s request to finish a training course before returning to his job duties would have an impact on whether the period should be considered a suspension.
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