By William Wiley, December 14, 2016

I love the law. I adore justice. But sometimes I think that judges who interpret the law and thereby dispense justice need to spend a bit more time in the real world before they issue decisions that affect the real world.

Issue in point: the bad dark road that the Federal Circuit Court of Appeals is taking us down relative to due process in the appeal of removals from the civil service. For many years, the Board and the court have duked it out on the issue of due process. In the late ’80s and into the ’90s, when I was chief counsel to the Board chairman, MSPB issued decisions that attempted to reflect the real world of a federal workplace. Yes, yes, yes, an employee is entitled to know the reasons that his removal is proposed. However, the Board was comparatively good about forgiving agencies who did not notify the employee of every possible nit and jog that conceivably could have been some small part of a decision to fire somebody. When “extra” information would show up in the mind of the Deciding Official (DO), MSPB would evaluate whether it really made a difference to the employee and, more often than not, would find this “new” evidence to be duplicative or reinforcing, or otherwise not a violation of due process. Without saying it in a decision, the Board members were acknowledging their own personal experiences in a federal workplace, and recognizing that in the real world, a lot gets talked about around a removal, on many levels.  As long as an employee was informed of the big stuff relevant to making a removal decision, MSPB tended to ignore the little stuff that might have been part of the decision but was so minor as not to have had an adverse effect on the employee.

Unfortunately, those guys wearing the black robes over at the Federal Circuit did not have the same workplace experiences, and tended to think in terms of a perfect due process world, a world in which agencies had to inform the employee in the proposal letter of darned near EVERYTHING in the DO’s mind when he made the decision to remove. The big deal case in which the Federal Circuit emphasized its reality-lacking tell-all philosophy was Stone v. FDIC, 179 F.3d (Fed. Cir. 1999), a decision in which it spanked the Board from not reversing a removal based on due process grounds when the agency DO considered facts not in the proposal. From that point forward, smart agencies acted to make certain that DOs were careful to restrict their thoughts and their decision letters to only those facts noted in the proposal notices. The result is that these days, it is much more likely than it was previously, the DO will have to notify the employee of extra information that has come up during the proposal period and allow additional response time.  In fact, you regular readers might remember reading in our FELTG newsletter previously that we are almost at the point of suggesting that DOs issue draft decision letters to employees for response prior to a final decision being made. That’s how afraid we are that a DO will inadvertently rely upon something in a decision that was not included in the proposal.

Well, now we have a new decision from the Federal Circuit that pushes us even farther down that dark and elusive road of perfect due process, Federal Education Association v. DoD Schools, Fed. Cir. No. 2015-3173 (Nov 18, 2016). In that case, the third-level supervisor emailed the employee’s first- and second-level supervisors and said that if the employee had done what was alleged, “we need to try and terminate her.”  During the subsequent proposal and removal procedure, the employee was not informed of the pre-proposal email. Although the DO testified at hearing that he was not influenced in his decision to remove by the email, a 2 to 1 Federal Circuit set aside the removal based on a due process violation.  It reasoned that even though the email was pre-proposal and lacked actual influence, it was an ex parte communication “of the type likely to result in undue pressure upon the Deciding Official.”

Oh, my goodness. These types of managerial communications occur all the time in a federal workplace. Agencies do not fire career employees lightly. There is always a lot of pre-proposal discussion – among managers, Human Resources professionals, and legal offices – about what to do in a particular situation. Before FEA v. DoD, those discussions did not become part of a case unless they were relied upon by the DO in making her decision.  Now, I don’t know where the line is, the “type likely to result in undue pressure.”  Here the pressure came from up the chain of command.  But what if it came from the director of Human Resources?  Or, in an unprivileged manner from an agency attorney?  Is the safest solution to provide the employee an attachment to the proposal letter that lists in detail ALL of the pre-proposal communications held regarding the employee’s misconduct?

I hope I am over-reacting, that the court saw something unusual in this case that made this email a unique critical communication that we will not see again.  Alternatively, I’m hoping that the Federal Circuit will grant en banc review and set aside this misplaced unpractical holding. Because if I am right and this thing gets upheld, I’m not sure just what agency officials are supposed to do. [email protected].

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