NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

05-3102

WILLIE M. RAWLS, JR., Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

__________________________ DECIDED: April 6, 2006

__________________________

Before MICHEL, Chief Judge , GAJARSA and LINN, Circuit Judges

. PER CURIAM. DECISION Petitioner appeals from a decision of the Merit Systems Protection Board (“Board”), Docket No. AT-0752-02-0707-B-1, reve rsing the administrat ive judge’s initial decision and sustaining an indefinite suspen sion imposed by the United States Postal Service (“USPS” or “agency”). Because the deficiency in the agency’s notice of suspension was properly found to be harmless error, we affirm

.BACKGROUND Willie M. Rawls, Jr. w a s a mail handler whe n he was arrested on July 26, 199 9 and charged with attempted first degree murder in connection with a nightclub shooting. On August 11 and August 16, 1999, he was summoned to re port to an Investigative Interview “to discuss [the] criminal charges.” The Invest igative Interview was conducted on August 18, 1999. On Augus t 19, 1999, he was indefinitely s u spended from USPS employment because there was “reasonable caus e to believe that [he had] committed a crime for which a sentence of imprisonment can be imposed.”

On December 14, 1999, Rawls was indict ed for attempted fi rst-degree murder. In March 2002, a jury convicted Rawls of the less er-included offense of reckless endangerment; he was sentenced to the maxi mum penalty of a $1000 fine and a term of incarceration of 11 months and 29 da ys. On May 22, 2002, Rawls wrote USPS asking if he could participate in the wo r k release program during the t e rm of his incarceration. A follow-up Inves t igative Interview was scheduled for June 12, 2002, but Rawls refused to make a statement. On June 14, 2002, Rawls was notified that he would be removed, effective June 21, 2002. On July 22, 2002, Rawls appealed his remova l to the Board. Because his appea l appeared to concern his indefinite suspension in addition to his removal, two docket numbers were assigned. On September 6, 2002, Administra tive J udge Ly nn P. Yovino issued an initial decision rev e rsing the i ndefinite suspension, holding that as a preference eligible employee, Rawls was ent itled to (but not provided) minimum due

05-3102 2process, as guaranteed by 5 U. S.C. 7513(b). In a separate initial dec ision, the AJ reversed his removal on the same basis. 1 On September 30, 2003, the Boar d consolidated and gr anted the agency’s petitions for review and reversed both initial dec isions of the AJ . With respect to the indefinite s u spension, the B oard observed that (1) while the agency had conceded that it did not issue a proposal notice before its dec ision notice, Rawls was provided a post-suspension grievance opportunity and (2) he had not demonstrated that the agency’s f a ilure to comply with 5 U.S.C. 7513( b) was harmful error. The case was remanded for further development of the record and adjudication on the merits. On January 27, 2004, the AJ issued ano ther initial decision reversing the indefinite s u spension. She reas oned that the agency ’ s notice had failed to set forth an ascertainable end to the suspension. Spec ific ally, 5 C.F.R. 752.402( e) provides that an indefinite s u spension “ ends with the occurrence of the pend ing conditions set forth in the notice of action,” but no such conditions were described in the August 19, 1999 notice. With respect to Rawls ’ affirmative defenses, however, the AJ found no evidenc e that the denial of his statutory rights to notice was har mful error or that he was a victim of race discrimination. The AJ also affirme d the removal by separate decision, but that is not part of this appeal. 2

1 Afterwards, a second removal proceedi ng was initiated by the agency. This time, appropriate notice was given and Rawls was again removed, effecti v e December 16, 2002. This second removal was upheld. Rawls v

. United St ates Postal Serv. , 2003 MSPB LEXIS 1077, Docket No. AT-0752-03-0304-I-1 (May 2, 2003). 2 Rawls challenged his removal in a pr ior appeal, but we rejected his du e process arguments and affirm ed the Board’s dec ision. Ra wls v. United States Pos t al Serv. , 129 Fed. Appx. 628 (Fed. Cir. 2005).

05-3102 3On December 1, 2004, the Board reversed. Rawls v. United States Postal Se rv. , 98 M.S.P.R. 98 (Dec ember 1, 2004). The B oard agreed with the AJ that t he agency notice “did not explic itly identify the condition subsequent that would terminate the suspension,” but found that “the sus pension clearly, albeit implicitly, had a condition subsequent since the suspension was bas ed on a c r iminal charge which must be resolved, one way or another, th rough criminal proceedings.” Id. at ¶ 8 (emphasis in original). It concluded that even if the failure to ex press l y define the condition subsequent was error, “it did not constitute harmful error warra nting reversal of the indefinite s u spension,” since Rawls’ letter of May 22, 2002 demonstrated that he clearly understood what the conditi on subsequent was. Id. at ¶ 12. Moreover, to the extent that Rawls was challenging the continuati on of his indefinite s u spension beyond his conviction in March 2002 until his remova l in June 2002, the B oard found that “the agency was not required to te rminate the suspension and re instate the appellant in order to initiate and effect his removal.” Id. at ¶ 14. This appeal followed. We have jurisd iction pursuant to 28 U.S.C. 1295(a)(9).

DISCUSSI ON Our review of MSP B decis ion s is lim ited to determining whether they are (1) arbitrary, capricious, an abus e of discreti on, or otherwise not in accordanc e with law; (2) obtained without procedures required by law, rule or regulation having bee n followed; or (3) unsupported by subst antial ev idence. 5 U.S.C. 7703(c). Rawls first argues that the Board erred as a matter of law in sustaining the indefinite suspension because the agency admitted that its notice did not set forth what

05-3102 4conditions would end the suspension period, as contemplated by 5 C.F.R. 752.402(e)

. 3
He then as serts that the B oard erred by engaging in a harmful error analysis, pursuant to 5 U.S.C. 7701(c)(2)(A). 4 We are not persuaded by ei ther of these arguments. We agree with the Boar d that “while the better practice is for agencies to identify the conditions subs equent ex plicitly in their dec ision notices imposing indefinite suspensions, the pertinent requirement for a valid indefinite suspen sion is that the suspension have a condition subsequent, rather than that the agency’s decision n o tice explic itly id entify the condition subsequent.” Rawls , 98 M.S.P.R. 98, at ¶ 11 (emphasis in original). Rawls ’ indefinite sus pension had an ascertainable end – i.e. , the resolution of the pending criminal charges against him – and he clearly understood this. In fact, after his conviction, he wrote USPS ask i n g if he could participa te in the work release program while he was serving his time. Moreover, the Board correctly found that the agency’s failure to express l y s t ate the condition subs eq uent in its notice was subject to the harmles s error rule. See e.g. , Johnson v

. United Stat es Postal Serv. , 37 M.S.P.R. 388, 393 (July 19, 1988) (concluding that “the agency's d e lay in id e n tifying the condition that will terminate the indefinite suspension does not constitute ha rmful error warranting rev e rsal of the action”). Al though Rawls does not challenge th is factual finding on appeal, we also hold

3 This section provides in relev ant part that an “i ndefinite suspension continues f o r an indeterminate period of ti me and ends with t he occurrence of the pending conditions set forth in the notice of action whic h may include the completion of any subsequent administrative action.” 4 This s e ction provides that the agency’s decision may not be sustained if the employ ee “shows harmful error in the application of the a gency's procedures in arriving at such decision.”

05-3102 5that substantial evidence supports the Boar d’s ultimate conclusi on that the error wa s harmless. Indeed, even under de novo revi ew, the harmless error finding stands. In short, Rawls argues that the statut ory notice requirement is absolute and any violation is per se harmful. We do not agree. The Suprem e Court “has applied harmless-error analysis to a wide range of errors and has recogniz e d that most constitutional errors can be harmless.” Arizona v. Fulminante , 499 U.S. 279, 306 (U.S. 1991). It follows, a fortiori, that statutory and r egulatory errors can be harmless, too.

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