“Federal Circuit precedent permits an agency to impose an indefinite unpaid suspension while criminal proceedings are pending, but requires the agency to terminate that suspension within a reasonable time after resolution of the criminal charges. Morrison v. National Science Foundation, 423 F.3d 1366, 1369 (Fed. Cir. 2005).”
“Here, the Merit Systems Protection Board’s Administrative Judge expressly found that the Kentucky court’s May 8, 2023 order placing Petitioner on conditional diversion ‘constituted a final disposition of the criminal proceedings against him.’ Pet. App. 24a. Nevertheless, the Department of Justice continued Petitioner’s unpaid indefinite suspension for fifteen additional days, until May 22, 2023.”
“The question presented is: Whether, after the Board expressly found that the state-court diversion order constituted the ‘final disposition of the criminal proceedings,’ a reviewing court may affirm the continuation of an indefinite unpaid suspension without determining when the agency’s criminal-proceeding justification terminated and without identifying a lawful, record-supported basis for continuing to withhold the employee’s pay after that disposition.”
