United States Court of Appeals for the Federal Circuit 

2006-3144 

NORBERTO PEREZ, 

 Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

 Respondent. 

Stuart A. Kirsch, American Federation of Government Employees, of Riverdale, 

Georgia, filed a combined petition for panel rehearing and rehearing en banc for 

petitioner. With him on the petition was Mark D. Roth, of Washington, DC. 

Michael J. Dierberg, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, filed a response to the petition 

for respondent. With him on the response were Peter D. Keisler, Assistant Attorney 

General, Jeanne E. Davidson, Director, and Todd M. Hughes, Assistant Director. 

 

Appealed from: Arbitrator Decision 
United States Court of Appeals for the Federal Circuit 

2006-3144 

NORBERTO PEREZ, 

 Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

 Respondent. 

ON PETITION FOR PANEL REHEARING 

AND REHEARING EN BANC 

Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge,

∗

 NEWMAN, MAYER, 

LOURIE, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, 

Circuit Judges. 

PER CURIAM. 

BRYSON, Circuit Judge, with whom MICHEL, Chief Judge, and LOURIE, RADER, and 

SCHALL, Circuit Judges, join, concurs in the denial of the petition for rehearing en banc. 

DYK, Circuit Judge, with whom GAJARSA and LINN, Circuit Judges, join, dissents from 

the denial of the petition for rehearing en banc. 

O R D E R

A combined petition for panel rehearing and rehearing en banc was filed by the 

Petitioner, and a response thereto was invited by the court and filed by the Respondent. 

The petition for rehearing was referred to the panel that heard the appeal, and 

thereafter the petition for rehearing en banc and response were referred to the circuit 

judges who are authorized to request a poll whether to rehear the appeal en banc. A 

poll was requested, taken, and failed. 

 Upon consideration thereof, 

 ∗ Senior Judge Friedman, who was on the original panel, participated only in 

decision on the petition for panel rehearing. 
2006-3144 2 

 IT IS ORDERED THAT: 

 (1) The petition for panel rehearing is denied. 

 (2) The petition for rehearing en banc is denied. 

 (3) The mandate of the court will issue on November 26, 2007. 

 FOR THE COURT 

November 19, 2007 /s/ Jan Horbaly_________ 

 Jan Horbaly 

 Clerk 

cc: Stuart A. Kirsch, Esq. 

 Michael J. Dierberg, Esq. 
United States Court of Appeals for the Federal Circuit 

2006-3144 

NORBERTO PEREZ, 

Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

Respondent. 

BRYSON, Circuit Judge, with whom MICHEL, Chief Judge, and LOURIE, RADER, and 

SCHALL, Circuit Judges, join, concurring in the denial of rehearing en banc. 

 I believe the panel opinion correctly analyzes the governing legal principles that 

apply to the issue before the court regarding the indefinite suspension of a federal 

employee because of alleged criminal conduct. There are other related issues 

regarding such suspensions that may need to be addressed in the future, but in my view 

they are not presented by the petition in this case. For those reasons, I do not favor 

rehearing en banc in this case. 

 It is worth reviewing the pertinent statutory provisions: 

First, the provisions of subchapter II of chapter 75 of title 5 (i.e., sections 7511 

through 7514) apply to, inter alia, a suspension for more than 14 days. 5 U.S.C. 

§ 7512(2). Employees who are suspended for 14 days or less are not entitled to review 

by the Merit Systems Protection Board, but have rights to internal agency due process 

procedures, as specified in 5 U.S.C. § 7503. 
Second, an agency cannot avoid the provisions of subchapter II, including Merit 

Systems Protection Board review, simply by denominating a suspension “indefinite.” An 

indefinite suspension that lasts for more than 14 days clearly falls within the scope of 

section 7512(2). This court has sensibly construed the statute to apply to such 

indefinite suspensions. See Pararas-Carayannis v. Dep’t of Commerce, 9 F.3d 955, 

957 n.4 (Fed. Cir. 1993); Dunnington v. Dep’t of Justice, 956 F.2d 1151, 1153 (Fed. Cir. 

1992) (citing cases). 

Third, an agency may take any action covered by section 7512, including 

indefinite suspensions lasting more than 14 days, only for “such cause as will promote 

the efficiency of the service.” 5 U.S.C. § 7513(a). 

Fourth, when an action under section 7512 is proposed, the employee is entitled 

to 30 days’ advance written notice unless there is reasonable cause to believe the 

employee has committed a crime for which imprisonment may be imposed. 5 U.S.C. 

§ 7513(b)(1). 

Fifth, any employee against whom an action covered by section 7512 is taken 

may appeal to the Merit Systems Protection Board. 5 U.S.C. § 7513(d). 

Sixth, when an employee takes a Board appeal from an action falling within 

section 7512, the agency’s decision must be “supported by a preponderance of the 

evidence” in order for the Board to sustain the agency action. 5 U.S.C. § 7701(c)(1)(B). 

This statutory scheme establishes two important, independent principles: First, 

any employee who is suspended for more than 14 days may appeal to the Merit 

Systems Protection Board, at which point the employing agency has the burden of 

showing by a preponderance of the evidence that the employee’s suspension promoted 

2006-3144 2
the efficiency of the service. 5 U.S.C. § 7513(a). Second, and separately, the agency 

may initiate such a suspension without providing the statutory 30 days’ written notice if 

the agency has reasonable cause to believe the employee has committed a crime. 5 

U.S.C. § 7513(b)(1). Thus, regardless of whether the agency has invoked its right 

under section 7513(b)(1) to avoid the 30-day notice requirement, the agency still has to 

satisfy the requirement of section 7513(a) to show that the suspension promoted the 

efficiency of the service. That requirement applies to every suspension, without regard 

to whether the suspension in question is based on alleged criminal conduct, and without 

regard to whether the agency has invoked the “reasonable cause” provision of section 

7513(b)(1) to bypass the 30-day notice requirement. I understand the panel opinion to 

embrace this interpretation of sections 7513(a) and 7513(b)(1). I certainly do not 

interpret the panel opinion to suggest that a suspension based on alleged criminal 

conduct need not be justified at all as long as the employing agency gives the employee 

30 days’ notice of its intention to suspend him. 

In prior cases discussed by the panel majority and dissent, beginning with the 

Dunnington case, this court has made statements that suggest a different approach. 

For example, in Pararas-Caryannis v. Department of Commerce, 9 F.3d 955, 957 (Fed. 

Cir. 1993), the court stated that “[i]n order for the MSPB to sustain an indefinite 

suspension, the agency must establish by a preponderance of the evidence that it had 

reasonable cause to believe the employee committed a crime for which imprisonment 

may be imposed.” See also Richardson v. U.S. Customs Serv., 47 F.3d 415, 419 (Fed. 

Cir. 1995). That statement seems to me to conflate the requirements of sections 

7513(a) and 7513(b), even though those two provisions address entirely different 

2006-3144 3
matters—in the first, what is required to sustain a suspension (section 7513(a)), and in 

the second, what is required to bypass the 30-day notice requirement (section 

7513(b)(1)). The problem with conflating those two requirements was not highlighted in 

those prior cases, because in each of them the suspension was imposed without 

observance of the 30-day notice requirement, and it was thus proper for the court to 

focus, at least for purposes of the notice provision, on whether the “reasonable cause” 

requirement of section 7513(b)(1) was satisfied. But the problem with that approach is 

clear in a case such as this one, where the 30-day notice requirement was satisfied. 

Applying the approach used in the Dunnington line of cases to this case would seem to 

import the “reasonable cause” requirement from a statutory provision—section 

7513(b)(1)—that is inapplicable on its face to the suspension at issue. Moreover, that 

approach would result in imposing different proof requirements on the agency 

depending on whether the suspension was denominated “indefinite” and whether the 

conduct that gave rise to the suspension is alleged to be criminal. 

Thus, in the Dunnington line of cases this court has stated that indefinite 

suspensions based on alleged criminal conduct can be sustained if the agency can 

show reasonable cause to believe the criminal conduct occurred. Dunnington, 956 F.2d 

at 1156 (“facts [supporting suspension] must be sufficient to meet the statutory test of 

reasonable cause”); Pararas-Carayannis, 9 F.3d at 957 (“the agency must establish by 

a preponderance of the evidence that it had reasonable case to believe the employee 

committed a crime for which imprisonment may be imposed”); Richardson, 47 F.3d at 

419 (section 7513(b) “is read as establishing an independent standard for a limited 

adverse action”); Morrison v. Nat’l Science Found., 423 F.3d 1366, 1368-69 n.* (Fed. 

2006-3144 4
Cir. 2005) (section 7513(b)(1) reasonable cause standard “has been applied as well to 

the agency’s decision to impose an indefinite suspension”). Yet outside the context of 

indefinite suspensions imposed without 30 days’ notice, this court has repeatedly held 

that disciplinary actions can be upheld only if the agency can show by a preponderance 

of the evidence that the employee has committed all the elements of the charged act. 

See King v. Nazelrod, 43 F.3d 663, 666 (Fed. Cir. 1994); Jacobs v. Dep’t of Justice, 35 

F.3d 1543, 1546-47 (Fed. Cir. 1994); Dixon v. Dep’t of Transp., 8 F.3d 798, 803 (Fed. 

Cir. 1993); Burroughs v. Dep’t of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990); Naekel 

v. Dep’t of Transp., 782 F.2d 975, 977 (Fed. Cir. 1986); Hale v. Dep’t of Transp., 772 

F.2d 882, 885 (Fed. Cir. 1985). That rule has been applied to all forms of disciplinary 

action covered by section 7512, and it has been applied to criminal as well as noncriminal conduct, as the cited cases make clear. The statutory analysis in the 

Dunnington line of cases therefore leads to an apparent conflict with the broader line of 

cases involving the requirement that disciplinary charges be sustained by a 

preponderance of the evidence.1

The apparent conflict between these two lines of cases is not addressed or 

resolved in the panel opinion and will likely require further attention in future cases. The 

 1

 Apart from the fact that we have regularly applied the preponderance 

standard to proof of conduct that is the basis for disciplinary action, even when that 

conduct is criminal, it would be odd to apply a different ultimate burden of proof 

depending on whether the charged conduct constituted a crime for which imprisonment 

could be imposed. Suppose, for example, an employee is suspended for assaulting a 

co-worker. Should the standard of proof to sustain the disciplinary action depend on 

whether the charged conduct would be an imprisonable crime under applicable state or 

federal law? If so, the standard of proof could end up turning on whether the conduct 

qualified as aggravated assault rather than simple assault. Or, if the discipline was 

imposed for theft, the standard of proof could depend on whether the amount taken 

constituted grand larceny under the particular state’s law or merely petty larceny. That 

makes no sense, and it is certainly not dictated by anything in section 7513. 

2006-3144 5
2006-3144 6

conflict does tend to demonstrate, however, that the approach taken in the panel 

opinion—construing section 7513(b)(1) to set forth the circumstances needed to justify 

overriding the 30-day notice requirement and not the degree of proof ultimately needed 

to justify the suspension itself—is the correct one. Because the panel opinion and the 

petition for rehearing, as I read them, are limited to addressing that narrow question and 

do not address broader issues such as those adverted to above, I do not favor granting 

rehearing en banc to address them. 
 

United States Court of Appeals for the Federal Circuit 

2006-3144 

NORBERTO PEREZ, 

 Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

 Respondent. 

DYK, Circuit Judge, with whom GAJARSA and LINN, Circuit Judges, join, dissenting 

from denial of rehearing en banc. 

 I respectfully dissent from the denial of rehearing en banc in this case. This case 

presents an important issue—whether, apart from section 7513(b)(1), an agency must 

have reasonable cause before it may impose an indefinite suspension (lasting more 

than fourteen days) pending an investigation. The majority’s decision here rests on its 

holding that the employee failed to raise this reasonable cause issue, when in my view 

the issue was squarely raised. While unfair to the particular employee, correction of this 

error may not warrant en banc review. However, in my view en banc consideration is 

warranted because the majority’s decision here has created confusion in an important 

area. 

 The majority made clear that it did not interpret 5 U.S.C. § 7513(b)(1) to require 

reasonable cause when an agency gives an employee more than thirty days’ notice of 

an indefinite suspension. Perez v. Dep’t of Justice, 480 F.3d 1309, 1311 (Fed. Cir. 

2007). The majority’s opinion is unclear, however, as to whether another provision 

imposes a reasonableness requirement. For example, the opinion appears to leave 
open whether section 7513(a), stating that the agency action shall be taken “only for 

such cause as will promote the efficiency of the service,” might a require reasonable 

basis to support an indefinite suspension. The majority notes that “[a]rbitrary action 

against an employee would not satisfy that standard.” Perez, 480 F.3d at 1313. As 

noted in my panel dissent, I think the answer is clear and uncomplicated: a reasonable 

basis, or reasonable cause, requirement is applicable to all indefinite suspensions 

lasting more than fourteen days, and necessarily follows from the agency’s admitted 

obligation to avoid arbitrary action. In order to support an indefinite suspension pending 

investigation there is no requirement that the agency establish by a preponderance of 

the evidence that the employee committed the act being investigated (regardless of 

whether the conduct charged is a crime), but there is a requirement that the agency 

have reasonable cause to conclude that the employee did so. 

 The confusion is compounded by the majority’s statement that the conclusion in 

our prior cases—that reasonable cause is required—was merely dictum. In my view our 

previous decisions have in fact held that “[i]n order for the MSPB to sustain an indefinite 

suspension, the agency must establish by a preponderance of the evidence that it had 

reasonable cause to believe the employee committed a crime for which imprisonment 

may be imposed.” Pararas-Carayannis v. Dep’t of Commerce, 9 F.3d 955, 957 (Fed. 

Cir. 1993); see also Morrison v. Nat’l Sci. Found., 423 F.3d 1366, 1368-69 n.* (Fed. Cir. 

2005) (“[T]he same standard—that there is reasonable cause to believe the employee 

committed a crime for which a sentence of imprisonment may be imposed—has been 

applied as well to the agency’s decision to impose an indefinite suspension.”). The 

majority’s characterization of the holdings in those cases as dicta is, of course, itself 

2006-3144 2
2006-3144 3

dictum, but the majority’s dictum has unfortunately cast doubt on the continued vitality of 

those earlier decisions. 

 In my view, the panel opinion here will lead to unnecessary confusion as to what 

is required of an agency before it may indefinitely suspend an employee. Although I 

would grant en banc review in this case, I welcome Judge Bryson’s view expressed in 

his concurrence that the court must address these issues in a future case. One may 

hope that this will happen sooner rather than later given the importance of the standards 

for indefinite suspensions pending investigation.