Lead Opinion
delivered the opinion of the court:
Thomas J. Ryder was employed by the Department of the Army as a Supervisory
Plaintiff chose to seek review under the Army grievance procedures and requested a hearing. This was held before an examiner of the United States Army Civilian Appellate Review Office ("USACARO”) and Col. Peach was an important witness against plaintiff.
Under Civil Service Commission procedures governing agency grievance systems — as implemented by the Department of the Army — the first official to act on the USACARO examiner’s report was the post commander at Fort Campbell, General Berry. He was expressly empowered to accept the examiner’s recommendations and to issue the decision on the grievance (favorable to Mr. Ryder) pursuant to those recommendations
When the examiner’s report was received at Fort Campbell, the Civilian Personnel Officer sent it to the Director of Facilities Engineering (Col. Peach) for his concurrence or nonconcurrence, with the explicit recommendation that the local commander (Gen. Berry) accept the examiner’s recommendations. However, Col. Peach was strongly of the view that Gen. Berry should not accept the report or recommendations, and submitted a lengthy signed statement to that effect. The Office of the Staff Judge Advocate at Fort Campbell recommended, on the other hand, that the examiner’s recommendations be accepted by Gen. Berry.
Because of Col. Peach’s opposition, the Civilian Personnel Office changed its position and recommended to Gen. Berry that he refuse to accept the examiner’s report and forward the grievance to the next higher authority — the Commander, U.S. Army Forces Command ("FORSCOM”) at Fort McPherson, Georgia — with the request that plaintiffs grievance be denied. Col. Peach’s extensive written reasons for nonconcurrence were made available to Gen. Berry.
Defendant does not affirmatively suggest, and there is no reason to believe, that plaintiff saw Col. Peach’s written statement (either the response to the Personnel Office’s request or the similar statement enclosed with Gen. Berry’s letter to FORSCOM) before Gen. Berry made his determination, or that plaintiff had any opportunity to answer that statement prior to Gen. Berry’s action.
FORSCOM upheld the removal in a brief letter and plaintiff sought review, as was his right, in the Civil Service Commission (first before the Federal Employee Appeals Authority and then before the Appeals Review Board).
This action for reinstatement and back pay, on the ground that the removal was improper, was first instituted in the United States District Court for the Middle District of Tennessee (where plaintiff resides) and later transferred to this court under 28 U.S.C. § 1406(c) (1970). Both sides have moved for summary judgment on the basis of the formal administrative record and other government documents obtained by plaintiff through discovery in the District Court.
The major issue is whether Col. Peach’s ex parte participation in Gen. Berry’s consideration of plaintiffs case invalidated the
Except in one respect, Camero is precisely the same as plaintiffs case. Both involved trial-type evidentiary hearings before a grievance tribunal which recommended favorably to the employee. Both involved ex parte communications by a prime adversary of the removed employee. In Camero that adversary was the lawyer who had presented management’s case to the grievance tribunal; here, the adversary was Ryder’s superior, the Director of Facilities Engineering (Col. Peach), who was (and is acknowledged to have been) the prime instigator of the charges and a chief witness against plaintiff at the grievance hearing.
The one difference between the cases is that Gen. Berry (in this instance) was not the final decider in all circumstances — in view of the USACARO examiner’s decision favorable to plaintiff, Gen. Berry could not himself decide against the employee but had to forward the matter to FORSCOM if he disagreed with the examiner. But Gen. Berry did have full and final authority to accept the examiner’s report and to find for Mr. Ryder; he could on his own have ordered the removal set aside and plaintiff reinstated — and the whole proceeding would have ended there without any participation by FORSCOM.
It is this power of Gen. Berry to end the case in Ryder’s favor, without referral to higher authority, which implicates the Camero principle of freedom from ex parte taints. An employee who has had a trial-type grievance hearing (or the equivalent), resulting in the recommendation that he be reinstated, is entitled to have the first official who can order his reinstatement
It makes no difference that, at the next level when the case reached FORSCOM, Ryder had the opportunity to answer the views which had stemmed from Col. Peach (later transformed into Gen. Berry’s own position). By then it was too late; plaintiff had irretrievably lost his valuable opportunity, explicitly given him by the regulations, to have Gen. Berry decide finally in his favor, untrammeled by improper ex parte approaches.
What we said in Camero is squarely pertinent here: "Of course, one of the fundamental premises inherent in the concept of an adversary hearing, particularly if it is of the evidentiary type, is that neither adversary be permitted to engage in an ex parte communication concerning the merit of the case with those responsible for the decision. * * * It is difficult to imagine a more serious incursion on fairness than to permit the representative of one of the parties to privately communicate his recommendations to the decision makers. To allow such activity would be to render the hearing virtually meaningless.”
Defendant then says that, even if all this be so, Mr. Ryder failed to present to the Civil Service Commission the point of ex parte adversary communications, and he is therefore barred from raising it in court.
As its last defense, the Government urges that plaintiff cannot have judgment — despite the fundamental procedural defect in his firing — if it be shown (as defendant believes to be the case) that he would have been removed on the merits of the inefficiency charge against him in the absence of any such procedural defect. However, where a serious procedural curtailment mars an adverse personnel action which deprives the employee of pay, the
Defendant suggests that we must or should change our rule because of the recent decision of the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle,
Mt. Healthy involved a state entity, a state employee, and an action against the state body under 28 U.S.C. § 1331 (1970) ("federal question” jurisdiction of the district courts). There is no indication in the opinion that the Court intended to alter our longstanding rule for federal employees suing the United States under the Tucker Act, 28 U.S.C. § 1491 (1970 & Supp. V 1975), for a procedural violation. The Supreme Court had itself applied that rule, automatically, in Greene v. United States,
There are other significant differences between Mt. Healthy and the present case. The former concerned a substantive constitutional protection (the right of free speech), not a procedural violation going to the heart of the whole administrative process.
In addition, Mt. Healthy dealt only with constitutional issues, but procedural violations of the rights of federal employees frequently implicate no more than a statute or regulation. It would indeed be a peculiar reversal of values for us to extend the Mt. Healthy principle to violations of constitutionally protected procedural rights of federal personnel but not to those given by legislation or regulation
We conclude, in sum, that the Mt. Healthy decision does not affect our established rule that a federal employee suffering a vitiating procedural deprivation can for that reason recover back pay and seek reinstatement because his removal was void. That does not mean, and it never has, that he would be immune from a new removal proceeding (on the same grounds) which was properly conducted.
For these reasons, plaintiffs motion for summary judgment is granted and the defendant’s is denied. Plaintiff is entitled to recover back pay, the amount to be determined under Rule 131(c). Plaintiff is also entitled to reinstatement in his former or a comparable position.
Notes
Plaintiff did not have an attorney but represented himself. The hearing took almost 3 days.
He could also grant, if he wished, the relief sought by the employee without regard to the examiner’s recommendations.
The contrary views of the Office of the Staff Judge Advocate were also sent to the general.
In forwarding the file to Gen. Berry (including the Peach memorandum), the general’s deputy wrote: "Since this case is so involved, I recommend, when you are ready to do so, that Mr. Browder [the Civilian Personnel Officer] and I be called in to discuss it with you. You may also wish to have Colonel Peach come in to give you background; however, since Colonel Peach is in an adversary position he should not be involved in discussions which will have a bearing upon your decision. To do so could well result in a complete refusal by FORSCOM to support our action” [emphasis in original]. In a deposition taken while this case was still in the District Court, Col. Peach replied, "not to my knowledge, I don’t ever recall ever discussing it with General Berry,” to a question whether he ever conferred with the general with respect to this matter. He also said later in the deposition that he had not discussed his memorandum with Gen. Berry and intimated that he did not himself talk to the deputy.
We have to take it that plaintiff had no inkling of the intervention of Col. Peach in the proceedings before Gen. Berry until after this suit was begun. Plaintiffs counsel flatly so represents and there is nothing of substance in the record before us to suggest otherwise (though defendant tries weakly at one point in its brief to raise some slight doubt).
Mr. Ryder, who continued to represent himself, did not desire a hearing before a representative of the Federal Employee Appeals Authority and none was held. At that time he did not know of Col. Peach's participation in the matter when it was before Gen. Berry.
The formal administrative record before the Commission does not contain Col. Peach’s signed memorandum and would not alert the Commission to this problem.
The Camero principle has continued to be accepted by this court. See Bethlehem Steel Corp. v. United States,
Defendant does not contend that Col. Peach was not an adversary in the same sense that the attorney was an adversary in Camero. The Fort Campbell command so viewed him. See note 4, supra. The notice to plaintiff of his proposed separation was signed by Robert Anderson, Col. Peach’s deputy. (Mr. Anderson was also a witness against plaintiff.) The request to the Civilian Personnel Office at Fort Campbell that removal proceedings be instituted against Mr. Ryder was signed by Mr. Anderson and strongly approved in writing by Col. Peach.
It is not certain that Gen. Anderson personally knew of the ex parte intervention of the management attorney in Camero, but it is quite clear on the record we have that Gen. Berry must have known, before he acted, that Col. Peach was involved and that he was a main adversary of Ryder’s. The general’s deputy so advised him (see note 4, supra); USACARO’s Atlanta region called the attention of Fort Campbell to the danger of participation by Col. Peach in any decision by Gen. Berry; and the Civilian Personnel Officer pointed out to Gen. Berry this position of USACARO (though he did not agree with USACARO that Col. Peach’s participation could be improper).
In fact, the record contains substantial evidence that Gen. Berry might well have restored plaintiff if Col. Peach’s views had not been interposed. The Civilian Personnel Office at Fort Campbell was at first favorable to accepting the grievance examiner’s recommendation of restoration, as was the Office of the Staff Judge Advocate. It was not until Col. Peach’s strong intervention that a contrary recommendation was put forward by the Civilian Personnel Office.
Citing such decisions as Pine v. United States,
Defendant asks us, in any event, to remand so that the Civil Service Commission can consider for itself the issue of ex parte communication. It is neither necessary nor appropriate to take that course because, in our view, that issue can be decided only the way we have determined it; any other solution would either be without support in substantial evidence or incorrect as a matter of law.
"We apply the established rule for personnel and pay cases — that unlawful administrative action depriving a claimant of a procedural right voids the action and leaves the plaintiff entitled to his money otherwise due, until (at the least) proper procedural steps are completed * *
Pointing out that exceptions are made for harmless error, the Gratehouse opinion declared: "A prejudicial procedural error is not rendered harmless, however, because the merits of the dispute appear to be clearly against the employee.”
Under our long-standing, consistently applied rule, it is irrelevant that FORSCOM and both levels of the Civil Service Commission later sustained the merits of plaintiffs firing. (As already pointed out, there is insufficient evidence that any of these later deciding bodies knew of Col. Peach’s improper communication to Gen. Berry). See, e.g., note 14, supra, and the two Camero decisions.
There were also other accusations against Doyle of misconduct and improper attitude.
No procedural deprivation was before the Supreme Court in Mt. Healthy.
The Supreme Court stressed that there were permissible grounds for refusing to continue Doyle’s employment, and that it would not be unusual for proper grounds to exist along with an improper one.
In the present case plaintiffs procedural right can be thought to rest on the regulation establishing the grievance procedure, not on the Constitution itself. See Camero, supra,
Dissenting Opinion
dissenting:
Today the court takes an already exceedingly generous rule and stretches it to wholly unnecessary lengths. What it does today is to add further to the plethora of obstacles an inefficient or incompetent federal employee may use to delay or to invalidate his discharge from employment. Today’s decision focuses and turns exclusively on a harmless technical procedural error while ignoring subsequent events which fully dissipated any taint of procedural irregularity. The court, further, overlooks plaintiffs failure to avail himself of administrative opportunities to air the issue on which he now prevails. Finally, the court departs from its own well-established precedents that it will not second-guess the administrators where the penalty assessed is authorized and applied without abuse of discretion.
The main precedent upon which the court relies established broad protection for federal employees against injury caused by private, undisclosed communications between agency decision makers and agency personnel whose active involvement as adverse parties to the employee in precedent levels of the administrative process, made their later ex parte role an affront to judicial notions of due process. Camero v. United States,
Although the majority characterizes this case as controlled by Camero, I find the cases distinguishable in at least two material respects. The first concerns the disclosure of the contents of the allegedly prejudicial communication, while the second deals with plaintiffs unexcused failure to use administrative opportunity to pursue the issue on which he now relies so heavily.
With regard to the first distinction, it is important to note that before the final Army decision was made, plaintiff was furnished a copy of the reasons for which General Berry had decided not to affirm the grievance officer. Before the final Army decision was made, plaintiff had an opportunity to respond in detail to the content of Berry’s comments and he did so. General Berry’s comments were, of course, virtual reproductions of Colonel Peach’s communication to Browder, the civilian personnel officer who passed them along to the general, unexpurgated. General Berry, in turn, adopted the Browder-Peach views as his own without much rewording. That plaintiff may not have known Berry’s remarks reflected Peach’s effort before Browder cannot be permitted to obscure the consideration that the ex parte aspect of the communication dropped entirely out before the Army Command made its final decision. This is so because there was no danger that the final Army decision would be based on facts or arguments which plaintiff had been denied an opportunity to rebut.
In the majority’s view, however, the focus is not on the final decision made by the U.S. Army Forces Command (FORSCOM) but on the recommendation to it made by Berry. General Berry’s views with regard to the grievance officer’s recommendations may, arguably, have been tainted by the errant communication. But we have never ruled, nor would it make good sense to rule, that personnel actions must be invalidated, no matter how abundant the evidence and how complete the opportunities for administrative remedy of any procedural errors, merely because there exists the possibility that a recommendation somewhere below the final decision-making administrative level was possibly tainted by conduct failing to comport with our exacting standards of due process. Reason demands that there be some inquiry into the substantiality of the harm; the causal nexus between the error and the final decision must be examined. Wathen v. United States,
Since there is no such nexus and no prejudice is established here, the court has developed a remarkable argument to justify the result it has reached. It has based its result on hypothetical facts. It says that although General Berry was not the final decision maker he would have been had he approved the examiner’s report favorable to plaintiff. True, but we need not reach that point because he did not approve the report. That is the fact we have to deal with in this case. When we face the facts that exist, Camero falls out of the window. There is no authority in statute, regulation, or judicial precedent for the court’s new holding that an employee "is entitled to have the first official who can order his reinstatement make that choice, if he wishes to accept the recommendation, without infected ex parte communications.” If that is the law there is no point at all in having an appellate process to correct errors below. Utopia cannot be ushered in by such judicial fiat and that is why the administrative appellate procedure here was provided. The administrative process should be given the chance to correct its own mistakes, as it did here, without judicial interruption. That process has rendered full justice by due process here.
The Camero case has been cited in a few contract cases, as shown in note 8 of the court’s opinion. I do not suppose anyone would argue but that it is improper for any final decision maker as, for instance, a board of contract appeals, to accept ex parte advice and information. Of course,
Gonzales was convicted under the Universal Military Training and Service Act for refusal to submit to induction in the Armed Forces. He had defended upon the ground that as a member of Jehovah’s Witnesses he could not participate in war. He lost his case before his local draft board and went to the appeal board for a hearing. He lost there, too. The FBI investigation resulted in a Department of Justice report considered by the board and adverse to Gonzales, but no copy of it was given to him prior to the board’s final decision. As in the instant case with the reports to General Berry and from him to FORSCOM, the report of the Department of Justice was only advisory to the appeal board. But, since plaintiff Gonzales did not see that information and since the board was the only decision-making body to pass finally on the entire file, the court said that Gonzales should have had a chance to reply to the Department of Justice recommendation so that the board would have "aZZ of the relevant data.” (Emphasis in text.) That is the very situation here except that our plaintiff did have his chance to comment on all of the relevant data before the final decision maker. Since he had that opportunity, and took advantage of it, the Gonzales holding makes it plain that he has no basis for his claim. He was not prejudiced by any so-called ex parte conversations below and has no right to recover since he has had full due process. As long as there is a right of appeal and a chance to answer the charges and the appellate decision is thus free from all taint, as here, plaintiff has had all the procedural protection he is entitled to. This is the concept of ex parte evidence treatment accorded everywhere. The Administrative Procedure Act, for instance, defines ex parte communications as those with respect to which prior notice to affected parties is not given. 5 U.S.C. § 551(14) (1976). See also 1 K. Davis, Administrative Law Treatise § 6:18 (2d ed. 1978).
I do not endorse the Government’s argument that plaintiffs, to prevail on civilian back pay claims, must prove not only a procedural error but also show that the action would have led to a different result "but for” the error. Such a rule would place an impossible burden on plaintiffs, and we would not countenance it. The Government’s argument is based on a misreading of several recent cases, including
The defendant reads the two cases cited in the paragraph above as supporting the imposition of a burden solely on the employee to show the causal effect of the error, while there should be no doubt that the courts in those cases believed the principal burden must lie with the defendant once an error has been shown and an initial burden of going forward with evidence of prejudice has been met. The rules in those cases would permit a fair, just, and practical result here. Plaintiff has met his burden of showing the occurrence of a procedural error, and he has met his burden of showing that his error may not have been harmless, since the ex parte communication turned Browder, at least, completely around. As in Mt. Healthy, defendant would ordinarily now be given opportunity to show that the error was harmless and that plaintiff would have been discharged even absent the alleged procedural error. Of course, the record now before us supports such a finding, and on this motion plaintiff does not contest the charges of his inefficiency found to be supported by the examiner. It would be useless, therefore, to remand.
The second critical distinction between this case and Camero involves plaintiffs deliberate bypass of two administrative opportunities to correct the error of which he now complains after his case left the Army. Here, plaintiff was offered a hearing de novo before an administrative subdivision of the Civil Service Commission, the Federal Employee Appeals Authority (FEAA). He waived his rights to such a hearing, although he alleged to the FEAA that General Berry’s recommendation "appear[s] to be perfunctory approval of a subordinate’s decision.” If plaintiff had availed himself of the opportunity for a hearing de novo before the FEAA, the full story of the ex parte communication would have become known and any remaining prejudice, if demonstrated, could at that time have been cured. Thus, even if FORSCOM’s decision was at all tainted by Peach’s letter to Browder, the FEAA’s decision could not have been, particularly if plaintiff had used the hearing procedure. Cf. Arnett v. Kennedy,
Furthermore, when plaintiff thereafter appealed to the Civil Service Commission’s Appeals Review Board (ARB), despite his suspicion expressed to the FEAA that Berry’s decision rested on someone else’s analysis, he did not include among his endless arguments this issue on which he now pins
A final point worthy of some mention involves a consideration ignored in Camero. This is the matter of judicial intrusion on agency determinations of penalties. In this case the charge against plaintiff was that he had failed to perform his official duties in a satisfactory manner; in short, he was found inefficient and his separation was for the good of the service. The agency cited 20 examples of deficiencies in plaintiffs work. The grievance examiner determined that nine of these deficiencies had been proved. There was thus, even under his view, abundant evidence that plaintiff was inefficient. In effect, then, the examiner sustained the charge against plaintiff but merely found some of the specifications wanting. The only important difference between those responsible for the initial agency action and the grievance examiner concerned the penalty to be applied for the established charge of inefficiency. Parenthetically, every deciding official or administrative body that considered the matter agreed that plaintiff was inefficient, and plaintiff on this motion does not even deny there is substantial evidence to show it. Today’s decision thus does violence to the established rule that the court will not reverse an agency’s assessment of a penalty for inefficiency unless an abuse of discretion is proved. See, e.g., Grover v. United States, supra,
The court trivializes notions of due process by constitu-tionalizing a simple personnel matter despite both the harmlessness of any error which may have occurred and plaintiffs considered relinquishment of opportunites for administrative correction. For these reasons, I am compelled, respectfully, to dissent from the court’s opinion.