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Indefinite Suspension Reversed

On April 2, 2012, the Merit Systems Protection issued its decision in Hall v. Department of Defense, 2012 MSPB 47. The Board reversed the indefinite suspension of Hall and ordered her reinstated with back pay.

Hall was a financial accounting assistant with the Defense Finance and Accounting Service (DFAS). In December 2010, the agency indefinitely suspended Hall without pay on the grounds that the agency had found her ineligible to occupy a sensitive position, and that her appeal of that determination at the defense office of hearing and adjudications was still pending. Hall's job did not require access to classified information, and the agency's finding was not related to any sort of ordinary security clearance. Hall appealed the suspension to the Board, but opted to withdraw her request for a hearing on her case. The administrative judge affirmed Hall's indefinite suspension after examining the merits of the agency's underlying denial of eligibility to occupy a sensitive position. Hall then filed a petition for review with the Board.

The Board overruled the administrative judge's decision and refused to sustain the agency's indefinite suspension of Hall. The Board noted that because Hall's case involved eligibility to occupy a sensitive position and did not involve any security clearance issues, the matter was within the Board's jurisdiction. Under the Board's precedent, an agency may only indefinitely suspend an employee without pay for three narrow reasons: reasonable cause to believe that the employee had committed a crime for which imprisonment could be imposed as a sentence (pending the outcome of criminal proceedings); legitimate concerns that the employee's medical condition would make the employee's presence in the workplace dangerous or inappropriate (pending a fitness for duty determination); or if an employee's access to classified information is revoked and the employee's job requires access to such classified information (pending determination on the security clearance issue).

The Board noted that Hall's job did not involve access to classified information-merely sensitive information-and therefore the third ground for approving an indefinite suspension did not apply to this case. Accordingly, the Board ordered the agency to cancel Hall's suspension with back pay, interest and other benefits that has the effect of restoring her to duty status.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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