UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BRIAN BONETTO,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

DE-0752-13-0228-I-2

DATE: February 6, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Joy Bertrand, Esquire, Scottsdale, Arizona, for the appellant.

Steven R. Simon, Esquire, Phoenix, Arizona, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

affirmed his indefinite suspension based on the agency’s belief that he had 

committed a crime after he was indicted in federal district court. Generally, we 

grant petitions such as this one only when: the initial decision contains erroneous 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

findings of material fact; the initial decision is based on an erroneous 

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the judge’s rulings during either the course of the appeal or 

the initial decision were not consistent with required procedures or involved an 

abuse of discretion, and the resulting error affected the outcome of the case; or 

new and material evidence or legal argument is available that, despite the 

petitioner’s due diligence, was not available when the record closed. See Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). 

After fully considering the filings in this appeal, and based on the following 

points and authorities, we conclude that the petitioner has not established any 

basis under section 1201.115 for granting the petition for review. Therefore, we 

DENY the petition for review and AFFIRM the initial decision, which is now the 

Board’s final decision. 5 C.F.R. § 1201.113(b).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant is a GL-09 Sports Specialist at a federal correctional facility. 

MSPB Docket No. DE-0752-13-0228-I-1 (I-1), Initial Appeal File (IAF), Tab 8 at 

9. On January 15, 2013, a federal grand jury indicted him for obstruction of 

justice under 18 U.S.C. § 1519 for knowingly making a false record entry 

regarding the use of force during an incident that occurred while he was on duty. 

I-1, IAF, Tab 9 at 6-8. On January 18, 2013, the agency proposed to indefinitely

suspend the appellant because, based on the indictment, the proposing official had 

reason to believe that the appellant had committed a crime.

2

 I-1, IAF, Tab 8 at 

 2 The notice specified that the proposal was being issued under the authority of 5 C.F.R. 

§ 752.404(d), which provides for a shortened notice period where the agency has 

“reasonable cause to believe that the employee has committed a crime for which a 

sentence of imprisonment may be imposed.” I-1, IAF, Tab 8 at 25; see 5 C.F.R. 

§ 752.404(d). Although the agency originally allowed the appellant 7 days to tender to 

a response, I-1, IAF, Tab 8 at 26, it subsequently granted him an extension to respond 

on or before February 22, 2013, id. at 20. The appellant submitted a written response 

on February 15, 2013. Id. at 14-19.
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25-27. On February 22, 2013, the agency imposed the indefinite suspension,

which the appellant timely appealed to the Board. Id. at 10-12; I-1, IAF, Tab 1.3

 

On January 8, 2014, the criminal charges were dismissed without prejudice, and 

the agency returned the appellant to work on January 10, 2014. I-2, IAF, Tab 14 

at 5-7.

¶3 After holding a hearing, the administrative judge affirmed the indefinite 

suspension, finding that the suspension was valid and that the appellant had failed 

to prove that his due process rights were violated. I-2, IAF, Tab 31, Initial 

Decision (ID). The appellant has filed a petition for review, and the agency has 

responded in opposition. I-2, Petition for Review (PFR) File, Tabs 3, 7.

¶4 To sustain an indefinite suspension, the agency must show: (1) there is 

reasonable cause to believe that the employee committed a crime for which a term 

of imprisonment may be imposed; (2) the suspension has an ascertainable end, 

i.e., a determinable condition subsequent that will bring the suspension to a 

conclusion; (3) the suspension bears a nexus to the efficiency of the service; and 

(4) the penalty is reasonable. Albo v. U.S. Postal Service, 104 M.S.P.R. 166, 

¶¶ 6-7 (2006). The administrative judge found that all of the above criteria were 

met in this case. ID at 4-9.

¶5 The appellant does not dispute, and we see no reason to disturb, the 

administrative judge’s findings that the agency had reasonable cause to believe 

that the appellant had committed a crime for which a term of imprisonment may 

be imposed and that there is a nexus between the criminal charge and the 

efficiency of the service. See PFR File, Tab 3. Rather, the appellant challenges 

the administrative judge’s findings that the indefinite suspension had an 

ascertainable end and was reasonable. Id. at 9-11. He further argues that, even if 

 3 Due to the ongoing criminal proceedings, the administrative judge dismissed the 

appeal without prejudice to refile, I-1, IAF, Tab 14, Initial Decision, and refiled the 

appeal sua sponte 6 months later, MSPB Docket No. DE-0752-13-0228-I-2 (I-2), IAF, 

Tab 1. 
4

the agency initially had an adequate basis to suspend him, it was obligated to 

reinstate him prior to the conclusion of the criminal proceedings when it became 

aware that the prosecution’s case lacked merit. Id. at 10-11. Lastly, the appellant 

argues that the administrative judge erroneously determined that he had failed to 

prove that his due process rights were violated. Id. at 11-18. 

The administrative judge properly determined that the indefinite suspension had 

an ascertainable end. 

¶6 To be valid, an indefinite suspension must have an ascertainable end. 

Harding v. Department of Veterans Affairs, 115 M.S.P.R. 284, 290, ¶ 15 (2010)

aff’d, 451 F. App’x 947 (Fed. Cir. 2011). The appellant argues that the 

suspension could have continued in perpetuity because the decision letter and 

proposal notice provided that the suspension would remain in place until 

resolution of the criminal case and/or until there was sufficient evidence to either 

return him to duty or to support an administrative action against him. See PFR 

File, Tab 3 at 11; I-1, IAF, Tab 8 at 11, 27. It is well settled, however, that an 

agency may continue an indefinite suspension after resolution of criminal charges 

in an employee’s favor where the agency provides advance notice of possible 

administrative action in the suspension proposal or decision notice and takes 

action within a reasonable time of the conclusion of the criminal proceedings. 

Camaj v. Department of Homeland Security, 119 M.S.P.R. 95, ¶ 11 (2012). 

Nevertheless, an agency must provide reinstatement to the date of the resolution 

of criminal charges in an appellant’s favor if it fails to implement an adverse 

action within a reasonable time. Id. In the instant case, the agency provided the 

appellant notice that the indefinite suspension could extend beyond the resolution 

of the criminal charges and ultimately reinstated him within 2 days of the 

dismissal of the criminal charges. See I-2, IAF, Tab 14 at 5-7. Accordingly, the 

indefinite suspension had an ascertainable end and the agency properly reinstated 

the appellant within a reasonable time after resolution of the criminal case.
5

The administrative judge properly determined that an indefinite suspension was 

reasonable under the circumstances.

¶7 The Board will review an agency-imposed penalty only to determine if the 

agency considered all the relevant factors and exercised management discretion 

within tolerable limits of reasonableness. Douglas v. Veterans Administration,

5 M.S.P.R. 280, 306 (1981). Relevant factors include the nature and seriousness 

of the offense, the employee’s past disciplinary record, the supervisor’s 

confidence in the employee’s ability to perform his assigned duties, the 

consistency of the penalty with the agency’s table of penalties, the consistency of 

the penalty with those imposed on other employees for the same or similar 

offenses, and the adequacy of alternative sanctions. Lewis v. Department of 

Veterans Affairs, 113 M.S.P.R. 657, ¶ 5 (2010); Douglas, 5 M.S.P.R. at 305-06. 

Not all of the factors will be pertinent in every instance, and so the relevant 

factors must be balanced in each case to arrive at the appropriate penalty. Lewis, 

113 M.S.P.R. 657, ¶ 5; Douglas, 5 M.S.P.R. at 306. The Board will modify a 

penalty only when it finds that the agency failed to weigh the relevant factors or 

that it clearly exceeded the bounds of reasonableness in determining the penalty. 

Douglas, 5 M.S.P.R. at 306 

¶8 The appellant argues that the administrative judge erred in finding that the 

indefinite suspension was reasonable because the deciding official “affirmatively 

refused” to consider any of the Douglas factors and relied exclusively on the 

agency “practice” of “summarily suspending all employees[] who are indicted.” 

PFR File, Tab 3 at 7, 9-10. Although the term “Douglas factors” does not appear 

in the decision letter, it is clear that the deciding official considered several

relevant Douglas factors, including the nature and seriousness of the offense and 

its relation to the appellant’s duties. I-1, IAF, Tab 8 at 11; see ID at 8. In the 

decision letter, the deciding official explained that, as a federal law enforcement 

officer, the allegations set forth in the indictment undermined the appellant’s

responsibilities as a correctional worker, which included supervising and caring 
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for the inmates, enforcing rules and regulations, and serving as a role model to all 

of the staff. I-1, IAF, Tab 8 at 11. He noted that the appellant was expected to 

obey the letter and spirit of the law and to avoid any action that could adversely 

affect the public’s confidence in the integrity of the federal government. Id. 

Given the nature of the allegations and the appellant’s responsibilities and duties, 

the deciding official concluded that the allegations contained in the indictment 

were serious. Id. Although the deciding official considered the appellant’s 

acceptable performance as a mitigating factor, he found that it did not outweigh 

the seriousness of the indictment. Id. Based on the allegations in the indictment, 

the deciding official concluded that the agency could not risk the appellant’s

continued presence in the workplace and that he could not be entrusted with the 

care and custody of inmates unless he was cleared of the charges. Id. At the 

hearing, the deciding official testified that the prison did not have any non-law 

enforcement positions or positions without any inmate contact that the appellant 

could have been placed in rather than being indefinitely suspended.

4 See ID at 9.

¶9 In light of the above, we agree with the administrative judge’s finding that 

the agency responsibly exercised its managerial judgment and that an indefinite 

suspension was not unreasonable.

The administrative judge correctly found that the agency was not obligated to 

return the appellant to duty prior to the resolution of the criminal charges.

¶10 The appellant argues that the agency should have reinstated him when it 

became aware that the indictment supporting the suspension was “not well 

 4 The administrative judge credited this testimony as it was further corroborated by a 

human resources manager and was not disputed by any other witness. ID at 8. The 

appellant does not challenge the administrative judge’s credibility determination, and 

we find no reason to disturb it on review. See PFR File, Tab 3. The Board must give 

deference to an administrative judge’s credibility determinations when, as here, they are 

based, explicitly or implicitly, on the observation of the demeanor of witnesses 

testifying at a hearing; the Board may overturn such determinations only when it has 

“sufficiently sound” reasons for doing so. See Haebe v. Department of Justice, 

288 F.3d 1288, 1302 (Fed. Cir. 2002). 
7

supported” and that the “prosecution against [him] was falling apart.” PFR File, 

Tab 3 at 10-11. Where an indefinite suspension based on an indictment was 

proper when effected, however, the indefinite suspension will remain proper as 

long as that indictment remains outstanding. Jarvis v. Department of Justice, 

45 M.S.P.R. 104, 109 (1990); see Camaj, 119 M.S.P.R. 95, ¶¶ 9-10. For the 

reasons discussed above and as the administrative judge determined, the agency 

properly imposed the indefinite suspension; accordingly, it remained proper so 

long as the criminal matter based on the indictment was pending. See ID at 4-9. 

Thus, the agency had no obligation to independently evaluate the merits of the 

criminal case or to rescind the suspension due to any perceived weakness in the 

prosecution of the case. See ID at 4-5.

The administrative judge correctly determined that the appellant failed to prove 

his affirmative defense. 

¶11 Lastly, the appellant argues that the agency’s investigation into the use of 

force incident violated his constitutional due process rights to notice and 

warnings against self-incrimination, as well as his right to union representation 

during questioning. PFR File, Tab 3 at 11-18. Thus, he continues, the

prosecution was “illegitimate,” and the suspension premised on the indictment 

violated his due process rights and was illegal. Id. at 17-18. The administrative

judge rejected the appellant’s affirmative defense and noted that such arguments 

were inappropriate in this forum as they would require the agency to second guess 

the prosecution’s decision in the ongoing criminal complaint. See ID at 10 (citing 

Jarvis, 45 M.S.P.R. at 109). We agree. A grand jury indictment is a conclusive 

determination of the issue of reasonable cause in this context, and the agency is 

not required to “look behind an indictment” to ensure it is proper or founded upon 

sufficient proof. Dalton v. Department of Justice, 66 M.S.P.R. 429, 436 (1995). 

Accordingly, we find that the administrative judge correctly determined that the 

appellant has failed to prove his affirmative defense. 
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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court's website, www.cafc.uscourts.gov. 

Of particular relevance is the court’s "Guide for Pro Se Petitioners and 

Appellants," which is contained within the court's Rules of Practice, and Forms 5, 

6, and 11.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems 
9

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board