In Young v. Department of Housing and Urban Development, 2011-3232 (Fed. Cir. 2/12/13), the United States Court of Appeals for the Federal Circuit ruled that HUD violated Young’s due process rights when HUD’s deciding official, in making her decision about whether to remove Young for alleged misconduct, interviewed four agency employees but did not give Young notice of the interviews or an opportunity to respond to the information uncovered in these interviews. The court also ruled that HUD committed harmful procedural error when it relied upon the information from the interviews—information which was not contained in the agency’s proposed removal of Young.

HUD proposed Young’s termination on charges of making an aggressive or intimidating statement to an agency witness at an arbitration hearing on another matter involving him. The deciding official reviewed the proposed removal and Young’s written reply, as well as heard Young’s oral reply. Afterward, the official interviewed four witnesses about the allegations but never informed Young about the information obtained during those interviews, and the agency removed Young without Young being able to reply to the new evidence.

Notably, one of the conclusions the deciding official made from the interviews was that one of Young’s supporting witnesses had made contradictory statements, and therefore was not credible. Young arbitrated the removal and argued a violation of his due process rights on the basis that he did not get a chance to reply to the information unearthed from the interviews. However, the arbitrator sustained the removal, finding no violation of due process.

In its decision, the court began by citing the seminal due process case Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368 (Fed. Cir. 1999), for the proposition that when an agency obtains new and material information through ex parte (without the employee present) communications, an employee’s constitutional due process rights are undermined. The court next analyzed the deciding official’s four interviews under three factors articulated in Stone: (1) whether the information was cumulative or new; (2) whether the employee knew of information and had a chance to respond; and (3) whether new information resulted in undue pressure upon the deciding official to rule in a particular manner.

The court found that the interview information was undeniably "new," as the deciding official herself indicated that information was a departure from the written statements already in the record, and that the interview information was the most important information in her making her decision. The court further noted that when the deciding official actually admits that the new information was relevant, that Stone Factor #3 becomes less important. Furthermore, the court concluded that as Young had not known of the interview information and had a chance to respond before being terminated, Stone Factor #2 was satisfied.

In addition to constituting a due process violation, the court also ruled that HUD committed harmful procedural error when it violated its own rule that a deciding official should only consider the reasons for removal contained in the proposed removal, along with any reply provided by the employee. The court thus reversed and remanded the arbitrator’s decision upholding the removal.

The Young decision is a reminder to federal employees facing discipline to make sure to request documents and information—particularly about the deciding official’s decision-making process—when given the opportunity. Whether at the agency reply stage, or in a request for documents or discovery before an arbitrator or the Merit Systems Protection Board, a due process defense may be the employee’s strongest defense.

* This information is provided by the attorneys at Passman& Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.

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