NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit 

2008-3091 

GEORGE H. REED, 

Petitioner, 

v. 

DEPARTMENT OF THE ARMY, 

Respondent. 

Peter B. Broida, of Arlington, Virginia, argued for petitioner. 

Harold D. Lester, Jr., Assistant Director, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, of Washington, DC, argued for 

respondent. On the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, 

Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, and J. Reid 

Prouty, Trial Attorney. 

Appealed from: Merit Systems Protection Board 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

 

 

2008-3091 

GEORGE H. REED, 

 Petitioner, 

v. 

DEPARTMENT OF THE ARMY, 

 Respondent. 

 

Petition for review of the Merit Systems Protection Board in PH0752060535-I-2. 

 DECIDED: August 29, 2008 

Before NEWMAN, SCHALL, and MOORE, Circuit Judges. 

SCHALL, Circuit Judge. 

 DECISION 

 George H. Reed petitions for review of the final decision of the Merit Systems 

Protection Board (“Board”) which sustained the action of the Department of the Army 

(“agency”) suspending him from his position indefinitely pending resolution of criminal 

charges against him. Reed v. Dep’t of the Army, No. PH-0752-06-0535-I-2 (M.S.P.B. 

Oct. 26, 2007) (“Final Decision”). We reverse and remand. 
DISCUSSION 

I. 

 The pertinent facts are not in dispute. During the relevant period of time, Mr. 

Reed was employed as an Information Technology manager at Fort Monmouth, New 

Jersey. Reed v. Dep’t of the Army, No. PH-0752-06-0535-I-2, slip op. at 2 (M.S.P.B. 

Apr. 11, 2007) (“Initial Decision”). On July 28, 2005, he was indicted in state court in 

New York on two counts of criminal conduct. Id. at 3. On May 16, 2006, after learning 

of the indictment, Raymond Russomano, the Director of the Directorate for Information 

Management at Fort Monmouth, informed Mr. Reed that he was proposing his indefinite 

suspension pending the outcome of the criminal proceedings. Id. at 2. Ten days later, 

George Fitzmaier, Deputy to the Garrison Commander, informed Mr. Reed that he was 

indefinitely suspended. Id. On January 18, 2007, however, the indictment against Mr. 

Reed was dismissed. Id. at 3. As a result, the agency terminated the indefinite 

suspension and restored Mr. Reed to his position. He remains employed at Fort 

Monmouth. 

 Mr. Reed appealed his suspension to the Board. Following a hearing, the 

administrative judge (“AJ”) to whom the appeal was assigned issued an initial decision 

in which he sustained the agency’s action. Id. at 9. The AJ determined that the agency 

had established by a preponderance of the evidence that the requirements for an 

indefinite suspension, see Morrison v. Nat’l Sci. Found., 423 F.3d 1366, 1368–69 (Fed. 

Cir. 2005); Dunnington v. Dep’t of Justice, 956 F.2d 1151, 1155 (Fed. Cir. 1992), had 

been met. Initial Decision, slip op. at 9. The AJ found that the agency had had 

reasonable cause to believe that Mr. Reed had committed a crime for which a term of 

2008-3091 2
imprisonment could be imposed; that the suspension had an ascertainable end; that 

there was a nexus between the criminal charges against Mr. Reed and the efficiency of 

the service; and that the suspension was reasonable. See generally id. The Initial 

Decision became the final decision of the Board when the Board denied Mr. Reed’s 

petition for review for failure to meet the criteria for review set forth at 5 C.F.R. 

§ 1201.115(d). Final Decision, slip op. at 1–2. 

 II. 

 We have jurisdiction over Mr. Reed’s appeal pursuant to 28 U.S.C. § 1295(a)(9). 

Pursuant to 5 U.S.C. § 7703(c), we must affirm the Board’s decision unless we find it to 

be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 

law; (2) obtained without procedures required by law, rule, or regulation having been 

followed; or (3) unsupported by substantial evidence. See also Kewley v. Dep’t of 

Health & Human Servs., 154 F.3d 1357, 1361 (Fed. Cir. 1998). 

 Mr. Reed’s sole argument on appeal is that the Board’s finding that there was a 

nexus between the charges against him and the efficiency of the service is not 

supported by substantial evidence. Specifically, Mr. Reed contends that the agency 

failed to establish a “demonstrable connection” between his job duties and the off-duty 

offense with which he was charged. The agency responds that substantial evidence 

does support the Board’s nexus finding. In making this argument, it relies upon the 

testimony of Mr. Fitzmaier and Robert Zona, Mr. Reed’s immediate supervisor. 

 We agree with Mr. Reed that the Board’s finding of a nexus between the charges 

against him and the efficiency of the service is not supported by substantial evidence. 

Having reviewed the pertinent evidence—the testimony of Mr. Reed, Mr. Fitzmaier, and 

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2008-3091 4

Mr. Zona—we are left with the conclusion that, when the agency decided to suspend 

Mr. Reed, it relied overwhelmingly on speculation in determining that he posed a danger 

to the Fort Monmouth community and that his presence at Fort Monmouth while 

charges were pending against him would be disruptive. 

 For the foregoing reason, the final decision of the Board sustaining Mr. Reed’s 

indefinite suspension is reversed. The case is remanded to the Board for a 

determination of the relief to which Mr. Reed is entitled as a result of the agency’s 

improper action in suspending him.