Due Process Concerns Dismissed in Removal for Failure to Maintain Employment Condition
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
While federal employees have a constitutional right to due process when being removed from their positions, the Merit Systems Protection Board (MSPB) explained that they may not have due process rights when it comes to the withdrawal of an employment-required condition.
Appellant was a Roman Catholic Priest who was employed as a chaplain at a Department of Veterans Affairs medical center. The appellant reportedly gave a homily in which he described “hitting” and “knocking out” two teenagers who burglarized a veteran’s center. The Agency reported this incident to the Archdiocese for the Military Services (AMS), a component of the Catholic Church. The AMS then notified both the appellant and the Agency that it withdrew the appellant’s ecclesiastical endorsement, though it did not provide a reason for the withdrawal. The chaplain position requires an annual ecclesiastical endorsement from the endorsing authority of a chaplain’s faith group—here, the AMS. The Agency subsequently removed the appellant from his position based on his failure to maintain this condition of his employment.
The appellant appealed his removal to the Merit Systems Protection Board and, after holding a hearing, the administrative judge affirmed the removal and denied the appellant’s affirmative defenses. He then filed a petition for review with the Board.
The appellant first argued on review that the agency violated his due process rights by providing false or misleading information to the AMS and by failing to give him proper notice and an opportunity to respond to that information and to the proposed removal. He also argued that his right to due process was violated because the deciding official was biased against him and considered ex parte information.
The Board denied these arguments. First, it stated that the appellant had no property or liberty interest in the ecclesiastical endorsement. As a result, he had no due process rights with respect to AMS’ decision to withdraw his endorsement, and he had no right to receive the evidence underlying the decision to withdraw the endorsement.
Next, the Board established that the Agency afforded the appellant due process in his removal. To establish a due process violation based on the identity of the deciding official, an employee must assert specific allegations indicating that the agency’s choice of the deciding official made the risk of unfairness to the appellant “intolerably high.” However, a deciding official’s mere awareness of background information concerning the appellant, her concurrence in the desirability to take the adverse action, or her predisposition to impose a severe penalty does not disqualify her from serving as a deciding official on due process grounds.
Here, the appellant argued that deciding official was biased for several reasons. To support this argument, he asserted that she had refused to meet with him on one occasion, she banned him from entering the executive suite, she refused to consider his request to recuse herself as the deciding official, she was aware that he had called her “ugly” and a “hypocrite,” she was involved in the investigation leading to the agency’s communication with the AMS, and she was a witness in the case.
The Board held that the appellant failed to show that the deciding official was biased against him or, if she was, that the risk of bias was not intolerably high. It also found she did not review ex parte information because the information at issue –a previous reprimand for disrespectful conduct—was noted in his proposed removal and, in the proposal, he was informed the reprimand would be taken into consideration.
The Board lastly addressed the appellant’s contention that the agency failed to conduct an adequate investigation of the allegations before communicating them to AMS. In particular, he argued that if the Agency investigated the actions leading to AMS’ removal of his endorsement—in particular, the homily in which he describes physically assaulting two teenagers—the Agency would have learned that the actions described in the homily were false. As discussed above, the appellant had no property or liberty interest in his ecclesiastical endorsement, and, therefore, the Agency’s failure to conduct an investigation prior to communicating with the AMS did not violate due process. Further, the Board stated that, even if the agency did commit a procedural error, the appellant has failed to show that such error was harmful because an AMS official testified that the appellant’s statements were “totally inappropriate regardless of whether the appellant had actually engaged in the activities he described.”
Find the full case here: Dieter v. Veterans Affairs.
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