Understanding the "Crime Provisions": Indefinite Suspension for Federal Employees (5 CFR § 752.402(e))

"My agency proposed I be indefinitely suspended under the 'crime provisions.' What is that?"

This is a common and critical question for federal employees facing potential disciplinary action. The term "Crime Provisions" actually refers to a specific type of indefinite suspension authorized by Office of Personnel Management (OPM) regulations under 5 CFR § 752.402(e). This regulation permits federal agencies to place an employee on an indefinite suspension when the agency has reasonable cause to believe the employee has committed a crime for which they could be imprisoned.

What is a Federal Employee Indefinite Suspension?

An indefinite suspension is a temporary placement of an employee in a non-duty, non-pay status. It differs from a standard, fixed-period suspension because it continues for an undetermined time. Crucially, it must end upon the occurrence of a specific, defined condition set forth in the notice of action—for example, the completion of an internal investigation or the conclusion of a criminal trial.

The Agency's Burden of Proof for "Crime Provisions"

To lawfully impose an indefinite suspension under the "crime provisions," the agency must satisfy the Merit Systems Protection Board (MSPB) with the following requirements:

1. Reasonable Cause: The agency must prove it has reasonable cause to believe the employee committed a crime that could result in imprisonment.

2. Terminating Event: The agency must provide a specific, identifiable suspension terminating event (e.g., completion of its investigation, resolution of criminal charges) in the notice of suspension.

3. Nexus and Penalty Reasonableness: The agency must establish a nexus (connection) between the alleged criminal conduct and the efficiency of the service and prove that the indefinite suspension penalty itself is reasonable.

Worth Noting: The MSPB has affirmed that a reversal of criminal charges, by itself, is not enough to automatically undermine the basis for a prior, properly imposed indefinite suspension.

Meeting the "Reasonable Cause" Standard

The "reasonable cause" standard is central to this action, and it does not necessarily require a conviction. Several factors can help an agency meet this threshold:

• Law Enforcement Investigation: Information developed during an ongoing investigation by local or federal law enforcement authorities can serve as a valid basis.

• Agency Information: Information already developed by the agency itself can suffice.

• Adverse Inferences: An agency is permitted to draw an adverse inference from an employee's invocation of the Fifth Amendment during the agency's internal investigation, which may contribute to establishing reasonable cause.

Key Legal Precedents (MSPB Citations)

Several significant MSPB decisions provide guidance on the use of indefinite suspension:

• Criminal Indictment: A formal criminal indictment will provide a valid basis for reasonable cause to trigger an indefinite suspension.

  • Smith v. Government Printing Office, 62 M.S.P.R. 497, 506 (MSPB 1994).

• Acceptance for Prosecution: The acceptance of a case for prosecution by a U.S. Attorney is sufficient basis for reasonable cause.

  • Bell v. Department of the Treasury, 50 M.S.P.R. 556, 563 (MSPB 1992).

• Arrest Alone is Insufficient: An arrest, by itself, does not provide a valid basis for reasonable cause.

• Subsequent Adverse Action: An agency may continue an employee in a non-pay status if it immediately follows an indefinite suspension with a subsequent adverse action (such as a removal).

  • Hernandez v. Department of Justice, 32 M.S.P.R. 376, 379 (MSPB 1987).

🤝 How InformedFED Can Help You Navigate Indefinite Suspension

Facing an indefinite suspension is a critical, high-stakes situation that demands immediate, informed action. At InformedFED, our services are tailored to help federal employees strategically respond to adverse actions like the "crime provisions" suspension.

• Initial Case Consultation: We provide a thorough review of your agency's Proposal Notice, immediately assessing whether the agency has met the strict "reasonable cause" standard and properly identified a suspension terminating event under 5 CFR § 752.402(e).

• Strategic Response Preparation: We assist in drafting a compelling, administratively sound oral or written response to the Deciding Official. This is your first and most critical opportunity to challenge the agency's basis for the action, including issues related to nexus, reasonable cause, and the proper procedure.

• Evidence and Due Process Review: We analyze the evidence used by the agency (e.g., law enforcement reports, internal investigation summaries) to determine if your due process rights were violated or if the evidence fails to meet the proper legal standards.

• MSPB Appeal Support: If the indefinite suspension leads to a subsequent adverse action (like removal), we provide comprehensive support for filing an appeal with the Merit Systems Protection Board (MSPB), assisting you representing your interests to fight for a reversal of the action and back pay (as warranted).