The U.S. Court of Appeals for the Federal Circuit recently reversed an arbitrator's decision which had reduced the penalty of removal to a suspension of "time served." Greenstreet v. SSA, No. 2007-3312 (9/24/08). The arbitrator issued his written decision 342 days after the grievant's termination and ordered him reinstated without back pay. In his petition for review, the employee asserted that the "effect of the arbitrator's decision was a 342-day 'time served' suspension, the length of which was arbitrarily determined by the time that the arbitrator took to issue a decision."
The court found that while the arbitrator did not expressly describe his award as imposing a "time served" suspension, his award did so by converting the removal into a suspension without pay for 342 days, from the effective date of the removal up to the date of the award. Citing Cuiffo v. U.S., 131 Ct. Cl. 60 (1955), and MSPB decisions, the court noted that a "time served" suspension was arbitrary and unfair where there is no explanation for the award. It stated that "The arbitrator in this case made no findings concerning the appropriateness of the length of Greenstreet's suspension." The court went on to conclude "that the length of the suspension is arbitrary when it is based solely on the suspended employee's 'time served' awaiting decision."
The court, citing the leading case of Douglas v. Veterans Administration, 5 MSPR 280, 303-08 (1981), held that a reviewing authority should take into account the relevant factors when determining the appropriate length of an employee's suspension. "But it may not set the length of a suspension based solely on the time that it takes the reviewing authority to reach a decision." As the arbitrator's decision contained no findings or analysis concerning the appropriate length of the suspension, the "time served" award was vacated and remanded to the arbitrator for reconsideration of the appropriate length of the suspension under Douglas.
* 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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