United States Court of Appeals for the Federal Circuit 

2006-3340 

ROBERT S. RHODES, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

Elaine Kaplan, Senior Deputy General Counsel, National Treasury Employees 

Union, of Washington, DC, argued for petitioner. With her on the brief were Gregory 

O’Duden, General Counse, L. Pat Wynns, Associate General Counsel, and Robert H. 

Shriver III., Assistant Counsel. 

Raymond W. Angelo, Acting Associate General Counsel, Office of the General 

Counsel, United States Merit Systems Protection Board, of Washington, DC, argued 

for respondent. With him on the brief were B. Chad Bungard, General Counsel, and 

Rosa M. Koppel, Deputy General Counsel. 

Appealed from: United States Merit Systems Protection Board 
United States Court of Appeals for the Federal Circuit

 

2006-3340 

ROBERT S. RHODES, 

 Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

 Respondent. 

__________________________ 

DECIDED: May 23, 2007 

__________________________ 

Before BRYSON and LINN, Circuit Judges, and ROBINSON, District Judge.

*

LINN, Circuit Judge. 

 Robert S. Rhodes (“Rhodes”) seeks review of the final decision of the Merit 

Systems Protection Board (“Board”), Rhodes v. Dep’t of Homeland Sec., No. NY-0752-

06-0015-I-1 (M.S.P.B. June 2, 2006) (“Final Decision”), which dismissed Rhodes’s 

appeal challenging the Department of Homeland Security’s (“agency’s”) failure to 

restore Rhodes to duty after an acquittal of criminal charges that formed the basis of his 

indefinite suspension from the agency. Because the AJ erred in determining that it 

lacked jurisdiction over Rhodes’s appeal, we reverse and remand. 

 *

 Honorable Sue L. Robinson, Chief Judge, United States District Court for 

the District of Delaware, sitting by designation. 
I. BACKGROUND 

 The facts are not disputed. Rhodes was employed as a Customs and Border 

Protection Officer with the agency when he was indicted on charges of a felony violation 

of 18 U.S.C. § 242 in the United States District Court for the Western District of New 

York. On July 27, 2004, the agency proposed that Rhodes be indefinitely suspended. 

Suspensions are temporary by definition, see 5 U.S.C. § 7501(2), and an indefinite 

suspension is one that “continues for an indeterminate period of time and ends with the 

occurrence of the pending conditions set forth in the notice of action,” 5 C.F.R. 

§ 752.402(e). The July 27, 2004 notice of action proposed suspension “pending further 

investigation and/or resolution of the criminal charges.” In a final decision notice dated 

August 4, 2004, the agency effected Rhodes’s indefinite suspension beginning August 

6, 2004. The final decision notice also informed Rhodes that he could either file an 

appeal with the Board or request that the National Treasury Employees Union invoke 

arbitration on his behalf under the collective bargaining agreement, but that he could 

only select one avenue and that his election would be final on the date any complaint or 

appeal was filed. 

 On September 1, 2004, the union invoked arbitration under the collective 

bargaining agreement to challenge the imposition of the indefinite suspension. The 

parties later agreed to hold the arbitration in abeyance pending the outcome of the 

criminal case in the Western District of New York. On or about September 8, 2005, a 

jury found Mr. Rhodes not guilty of the criminal charges. The union withdrew its 

invocation of arbitration on October 12, 2005. 

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On October 14, 2005, Rhodes filed an appeal with the Board to challenge the 

agency’s failure to promptly terminate the indefinite suspension and restore him to duty 

after his acquittal. The agency filed a motion to dismiss the appeal for lack of 

jurisdiction, arguing that Rhodes was precluded from seeking Board review under 5 

U.S.C. § 7121(e)(1) because he had elected to challenge the indefinite suspension 

through the negotiated grievance procedures. 

In considering the agency’s motion, the administrative judge (“AJ”) noted that 

Rhodes “is not seeking Board review of the merits of the agency’s decision to 

indefinitely suspend him. Instead, he is challenging the agency’s alleged failure to end 

the indefinite suspension and return him to duty.” Rhodes v. Dep’t of Homeland Sec., 

No. NY-0752-06-0015-I-1, slip op. at 4 (M.S.P.B. Feb. 10, 2006) (“Initial Decision”). The 

AJ determined, however, that such a challenge is only properly before the Board as a 

petition for enforcement of a prior Board decision on the merits of the imposed 

suspension. Id., slip op. at 6 (“[T]he Board has held that any subsequent appeal filed 

by the appellant after resolution of the criminal charges, challenging the agency’s failure 

to end the indefinite suspension upon the occurrence of the condition subsequent, is 

treated as a petition for enforcement of the initial decision finding the agency had 

articulated a valid condition subsequent.”). The AJ then concluded that “an election to 

grieve the reasons for the indefinite suspension through the negotiated grievance 

procedure would include any subsequent action challenging the agency’s alleged failure 

to end the indefinite suspension pursuant to the stated condition subsequent.” Id., slip 

op. at 7. Accordingly, the AJ dismissed Rhodes’s appeal for lack of jurisdiction. Id., slip 

2006-3340 3
op. at 8. The Board denied review, and the decision became final. Final Decision, slip 

op. at 2. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

II. DISCUSSION 

The question of the Board’s jurisdiction is a legal issue that we address without 

deference. Yates v. MSPB, 145 F.3d 1480, 1483 (Fed. Cir. 1998). Section 7121 

provides, in relevant part, that “[m]atters covered under sections 4303 and 7512 of this 

title which also fall within the coverage of the negotiated grievance procedure may, in 

the discretion of the aggrieved employee, be raised either under the appellate 

procedures of section 7701 of this title or under the negotiated grievance procedure, but 

not both.” 5 U.S.C. § 7121(e). Rhodes argues that the imposition of an indefinite 

suspension and the failure to terminate that indefinite suspension are not the same 

“matter” according to 5 U.S.C. § 7121(e). We agree. 

The distinction between the proper imposition of an indefinite suspension and the 

proper continuation of that indefinite suspension is demonstrated by the nature of the 

inquiries involved on review. An indefinite suspension longer than fourteen days is an 

adverse agency action subject to the requirements of 5 U.S.C. § 7513. See Dunnington 

v. DOJ, 956 F.2d 1151, 1153 (Fed. Cir. 1992). To properly suspend an employee with 

less than 30 days notice, that statute requires that “the agency must have reasonable 

cause to believe that the employee committed a crime for which a sentence of 

imprisonment could be imposed, 5 U.S.C. § 7513(b)(1), and the suspension must 

promote the efficiency of the service, 5 U.S.C. § 7513(a).” Morrison v. NSF, 423 F.3d 

1366, 1368 (Fed. Cir. 2005) (citing Dunnington, 956 F.2d at 1155). Where—as here—

the employee has been indicted for a crime for which a sentence of imprisonment may 

2006-3340 4
be imposed and the nature of the crime relates to the employee’s ability to perform his 

or her duties, the requirements of section 7513 will have been met. Richardson v. U.S. 

Customs Serv., 47 F.3d 415, 419 (Fed. Cir. 1995); see also Pararas-Carayannis v. 

Dep’t of Commerce, 9 F.3d 955, 957 (Fed. Cir. 1993); Dunnington, 956 F.2d at 1155. 

An inquiry into the propriety of an agency’s imposition of an indefinite suspension looks 

only to facts relating to events prior to suspension that are proffered to support such an 

imposition. Facts and events that occur after the suspension has been imposed have 

no bearing on such an inquiry. See Richardson, 47 F.3d at 421 (noting that an 

otherwise proper imposition of an indefinite suspension “is not made invalid by a later 

determination that the alleged criminal conduct was not conclusively established”). 

An inquiry into the propriety of an agency’s failure to terminate an indefinite 

suspension, however, is a different matter and does look to facts and events that occur 

after the suspension was imposed. Although an exact duration for an indefinite 

suspension may not be ascertainable, a condition subsequent must exist that 

terminates the suspension. See 5 C.F.R. § 752.402(e); see also 5 U.S.C. § 7501(2). 

Once the condition subsequent has occurred, the agency must terminate the 

suspension within a reasonable amount of time. See Richardson, 47 F.3d at 419; 

Dunnington, 956 F.2d at 1156; Engdahl v. Dep’t of the Navy, 900 F.2d 1572, 1578 (Fed. 

Cir. 1990). The inquiry in such a case therefore looks to whether an identified condition 

subsequent has occurred after the suspension was imposed and whether the agency 

acted within a reasonable amount of time to terminate the suspension. 

Here, Rhodes does not dispute that the agency complied with the requirements 

of section 7513 or that the imposition of the indefinite suspension was proper. Instead, 

2006-3340 5
Rhodes appeals to the Board alleging that it was improper to continue the indefinite 

suspension for more than 60 days after his acquittal with no administrative action 

proposed against him. As discussed above, the inquiry presented by such an appeal is 

entirely different from the inquiry presented by an appeal from the imposition of an 

indefinite suspension. Board decisions recognize that distinction and have allowed 

employees to appeal the continuation of an indefinite suspension without requiring a 

challenge to the suspension’s imposition. See Hofmann v. Dep’t of Agric., 31 M.S.P.R. 

399, 401 (1986) (“[A]ppellant should not be foreclosed from challenging the continuing 

nature of the suspension now because he recognized that an earlier challenge would 

waste his, the agency’s, and the Board’s time and resources and that appellant is 

entitled to challenge the continuation of the indefinite suspension in light of the changed 

circumstances.”); see also White v. USPS, 58 M.S.P.R. 22, 24–25 (1993). That is 

because the agency’s suspension in such a case—though proper when imposed—

becomes improper after an identified condition subsequent has occurred. See White, 

58 M.S.P.R. at 25 (“We conclude that the appellant here also acted properly in awaiting 

the disposition of his criminal charge, and the agency’s decision on whether to reinstate 

him, before bringing his appeal. Indeed, as he argues, until these events transpired, he 

had nothing to appeal, in that the initial imposition of the suspension was proper.”); see 

also Richardson, 47 F.3d at 421–22 (“When, as here, the summary suspension is based 

on an indictment for a crime of which the employee is acquitted, the date of the acquittal 

clearly marks a date at which the agency no longer can maintain that it has reasonable 

grounds for summary suspension. The reason for the summary suspension disappears 

at that point, and, absent separate administrative proceedings on which to base an 

2006-3340 6
independent adverse action, the employees are entitled to reinstatement with pay as of 

that time.” (footnote omitted)). The Board’s treatment of these cases acknowledges that 

the agency’s failure to terminate an indefinite suspension after a condition subsequent 

is a separately reviewable agency action. We therefore conclude that the matter raised 

by an appeal from the imposition of an indefinite suspension is not the same as the 

matter raised by an appeal from the continuation of an indefinite suspension. As a 

result, Rhodes’s election to grieve the former does not preclude an appeal to the Board 

of the latter. 

The government argues that Bonner v. Merit Systems Protection Board, 781 F.2d 

202 (Fed. Cir. 1986), defined the term “matter” in section 7121 as the underlying 

personnel action, of which there is only one in this case. In Bonner, the government 

argued that the term “matter” in 5 U.S.C. § 7121(a) refers only to appeals from an 

agency’s action, not the underlying agency action itself. 781 F.2d at 204. We rejected 

that interpretation and held that the term “matter” embraced both an underlying agency 

action and an appeal from that action. Id. at 204–05. Contrary to the government’s 

argument, nothing in Bonner limited the definition of “matter” to the underlying personnel

action that was taken. The Board treats an agency’s failure to terminate an indefinite 

suspension as a separately reviewable action from the agency’s imposition of that 

indefinite suspension even though both agency actions concern the same personnel 

action. See White, 58 M.S.P.R. at 24–25; Hofmann, 31 M.S.P.R. at 401. Therefore, an 

analysis of “matter” in the context of 5 U.S.C. § 7121(e) that looks to the underlying 

agency action that is being appealed—not the underlying personnel action—does not 

conflict with our decision in Bonner. 

2006-3340 7
 Because an appeal from an agency’s failure to terminate an indefinite 

suspension involves a different inquiry than an appeal from an agency’s imposition of an 

indefinite suspension, and because the Board’s own decisions treat the former as a new 

matter, the AJ erred in dismissing Rhodes’s appeal for lack of jurisdiction under 5 

U.S.C. § 7121. 

III. CONCLUSION 

For the foregoing reasons, we reverse the Board’s dismissal for lack of 

jurisdiction. We note, however, that the Board expressly declined to address the 

timeliness of Rhodes’s appeal. That issue may therefore be addressed by the Board on 

remand. 

REVERSED AND REMANDED

2006-3340 8