Boss v. Dep't of Homeland SEC.
908 F.3d 1278
Fed. Cir.2018Background
- Leonard Boss, a CBP Border Patrol Agent, faced a proposed 30-day suspension based on three charges: (1) improper overtime-sheet policy compliance, (2) failure to follow supervisory instructions, and (3) conduct unbecoming an agent.
- The deciding official reduced the penalty to a 15-day suspension after an investigation and issued a decision letter.
- Boss requested arbitration; the deciding official admitted he had considered three undisclosed documents (overtime-pay policies) that related solely to Charge One and were not provided to Boss or his union until arbitration.
- The arbitrator found a contractual due-process violation and vacated Charge One; he found Charges Two and Three untainted by the undisclosed documents and sustained them on the merits.
- Applying Douglas factors, the arbitrator reduced the suspension to 10 days. Boss appealed, arguing the due-process defect as to Charge One required vacating all discipline and a new constitutionally correct proceeding on Charges Two and Three.
Issues
| Issue | Boss's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether an ex parte/notice-based due-process violation as to one charge requires vacating other, separate charges | The procedural due-process violation on Charge One infects the entire disciplinary proceeding and requires a new constitutionally correct proceeding for all charges | A charge-by-charge analysis is proper; undisclosed documents related only to Charge One and did not taint Charges Two and Three | The court held due process is applied charge-by-charge; vacating Charge One did not require vacating Charges Two and Three because the undisclosed materials did not pertain to them |
| Whether Stone’s prohibition on harmless-error analysis requires setting aside all charges when an ex parte communication occurred on one charge | Stone means any ex parte-based due-process violation precludes harmless-error treatment and mandates full redo | Stone’s bar on harmless-error relates to evaluating the tainted charge’s merits; it does not compel undoing unrelated charges absent evidence of spillover prejudice | The court read Stone narrowly: the harm rule prevents hypothetical merits redecisions on the tainted charge but does not automatically invalidate separate, untainted charges |
| Whether precedent (Young, Sullivan, Ryder) requires a full new proceeding here | Relies on Young and other precedent to demand a new proceeding because of any ex parte due-process violation | These precedents apply where ex parte taint affected all charges or only a single-charge case; they do not control multi-charge cases where the taint is limited | The court distinguished Young, Sullivan, Ryder and declined to extend their remedies where the error affected only one distinct charge |
| Remedy: whether arbitrator’s reduction of penalty (to 10 days) was proper after vacating one charge | Boss sought complete nullification and a new proceeding on remaining charges | Agency and arbitrator applied Douglas factors to remaining proven charges and reduced penalty accordingly | The court affirmed the arbitrator’s remedy: Charge One vacated; Charges Two and Three sustained; overall suspension reduced to 10 days |
Key Cases Cited
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (public employees entitled to notice, explanation of employer’s evidence, and opportunity to respond before deprivation of property interest)
- Stone v. F.D.I.C., 179 F.3d 1368 (Fed. Cir. 1999) (ex parte communications introducing new/material evidence can violate due process; set out three-factor test)
- Young v. Dep’t of Hous. & Urban Dev., 706 F.3d 1372 (Fed. Cir. 2013) (ex parte communication violating due process on a single charge can require a new, constitutionally correct proceeding)
- Shinseki v. Sanders, 556 U.S. 396 (2009) (harmless-error review should focus on whether error affected substantial rights)
- Kotteakos v. United States, 328 U.S. 750 (1946) (discussing harmless-error principles)
- United States v. Job, 871 F.3d 852 (9th Cir. 2017) (constitutional error affecting evidence held to affect only a subset of counts)
- United States v. Cameron, 699 F.3d 621 (1st Cir. 2012) (constitutional error did not taint all counts where evidence was irrelevant to some counts)
- Sullivan v. Dep’t of the Navy, 720 F.2d 1266 (Fed. Cir. 1983) (discussing limits on harmless-error in cases with ex parte taint)
- Ryder v. United States, 585 F.2d 482 (Ct. Cl. 1978) (ex parte communications can vitiate an entire removal when they taint the whole proceeding)