With a few exceptions, government employees are protected by the same laws as apply to all other employees. But the procedure for vindicating those rights is completely unlike anything in the private sector. In addition, most government employees have a number of additional rights as well. Unfortunately, these rights are contained in byzantine caselaw interpreting the Constitution, as well as a host of state and federal statutes, some of which only apply to one small subset of employees - for example, Miss. Code § 39-3-17, which gives due process rights to library employees in Mississippi.
National Experience with Government Employee Cases
The firm represents employees in these difficult cases. Joel Dillard previously worked in the General Counsel's office of the American Federation of Government Employees, and gained significant experience on federal employment issues. He also clerked on the Federal Circuit Court of Appeals, which hears federal employee appeals from the Merit Systems Protection Board. He worked in the Office of the Chair of the Equal Employment Opportunity Commission, and had the opportunity to author a decision for the Office of Federal Operations on a federal employee's age discrimination case. He now teaches a Continuing Education course for teachers concerning the law governing their employment. The firm has represented many government employees - from the federal government to the public schools to the state run hospitals and institutions.
We write about these issues a lot! Read more in these excerpts from the blog:
A Mississippi lawyer with experience with federal employees and federal employee unions
Since going into private practice, I've particularly enjoyed representing federal employees. It has been something of a homecoming for me.
In fact, my very first legal job was with the American Federation of Government Employees (AFGE), General Counsel's office. And after that, while working in the Office of the Chair of the Equal Employment Opportunity Commission (EEOC), I had the opportunity to write a federal employment decision for the Office of Federal Operations (OFO) - my first experience with judicial writing. And during my clerkship for Judge Dyk on the Federal Circuit Court of Appeals, I particularly enjoyed working on federal employee appeals from the Merit Systems Protection Board (MSPB) and Office of Special Counsel (OSC).
Federal employees in Mississippi need a local lawyer that understands the special laws of their workplace.
One of the most rewarding aspects of this work for me is knowing that it fills an important need in this area.
Federal employment is not like other jobs, and employees need to find an attorney that understands this. In addition to the full body of constitutional law, including the Due Process Clause and the First Amendment, there is also a mountain of detailed and sometimes contradictory regulations issued by the Office of Personnel Management (OPM) and the various federal agencies. For example, the Department of Defense and a number of other agencies have had statutory pilot programs and exceptions provided by Congress, which creates a totally new body of law just for one part or subpart of the government, while, for example, the Department of Veterans Affairs, the Department of Agriculture, and other agencies operate under a different set of OPM rules. For this reason, the OPM "rule of three" for merit selection doesn't apply to DOD - even though nothing on the face of OPM regulations would appear to indicate as much.
Complexity upon complexity: the example of FAA cases
Consider another example that is particularly baffling. Congress took a series of actions in the 1990s which created and eliminated various personnel programs for FAA employees. Then it partially restored the prior law, giving back authority to the Merit Systems Protection Board to hear appeals. But Congress somehow managed to create MSPB rights without giving the MSPB any meaningful power to protect employees - no back pay or attorney fees were available. See Gonzalez v. DOT, 551 F. 3d 1372 (Fed. Cir. 2009). The issue split the in banc Federal Circuit, which denied review of the panel decision by the narrowest possible margin, and with extensive opinions on each side.
Congress tried to fix the issue in 2012, again amending the law - retroactively - to restore the MSPB's authority to award back pay and attorneys' fees. But again, Congress somehow left something important out - this time attorneys' fees for appeals to the Federal Circuit itself. See Gallo v. DOT, 725 F. 3d 1306 (Fed. Cir. 2013). The result is that, if an employee loses at the MSPB, and then wins on appeal to the Federal Circuit, they don't get attorneys' fees for the time spent on their winning appeal, but they do get attoneys' fees for the time spent losing before the MSPB.
Meanwhile, the very same bizarre statutory provision resulted in what the Court of Claims considered an exclusion from an exemption to Fair Labor Standards Act (FLSA) overtime. The issue again split a panel of the Federal Circuit as to what Congress might have meant. See Abbey v. US, 745 F. 3d 1363 (Fed. Cir. 2014) Surprisingly, whereas in Gonzalez and Gallo the court read the statute literally, notwithstanding the anomalous result, in Abbey the court ignored the very same literal reading to consider the statute in its context - and the question whether this created or avoided an anomalous result is one that again split the court.
An experienced, Mississippi attorney for federal employees
For me, the challenge of a good puzzle like this is part of the fun of being a lawyer. It makes me very happy to use my experience and creativity to find the best solution to each employee's legal problem.
Why (Most) Government Employees Cannot be Fired At Will
Many people at some time in their life are told - usually by a smug boss - that they can be lawfully fired at any time, without notice, for any reason or no reason. This is not exactly true, but it is not exactly untrue either. The truth is, most employees in the private sector can be fired
at will, but the failure to identify a compelling reason opens the employer up to a variety of civil rights claims.
Government employement is a totally different story. Most government employees - including most government employees in Mississippi - have a right to due process, and can only be fired
for cause. Indeed, for state-level personnel, the legislature created a
Statewide Personnel System which protects
all employees of state departments, agencies and institutions as defined herein, with only certain specific exceptions. Miss. Code § 25-9-107. The purpose is to ensure that hiring and firing are
based on sound methods of personnel administration and
to build a career service in government which will attract, select and retain the best persons. Miss. Code § 25-9-101; see also § 25-9-103. As a result, termination is only for cause. Miss. Code § 25-9-127. Similar civil service protections apply to most other civil servants as well, from the municipality, Miss. Code § 21-31-23; Miss. Code § 21-31-71, to the federal government, 5 U.S.C. § 7513.
In the rare case where a government employee in Mississippi is
at will, the statute typically says so explicitly and in no uncertain terms, e.g.:
However, any employee which the county administrator is authorized to employ may be terminated at the will and pleasure of the administrator. Miss. Code § 19-2-9(1). As the Fifth Circuit observed, the statutes are usually quite explicit about this:
Many Mississippi statutes governing the employment practices of public employers expressly prescribe either a ‘terminable at will’ or a ‘for cause’ standard. Conley v. Board of Trustees of Grenada County Hosp., 707 F. 2d 175, 179 (5th Cir. 1983). At will termination is clearly the exception rather than the rule.
And for good reason. Robust civil service protections are perhaps the key weapon in the ongoing war against corruption and patronage, as a review of our history shows.
The founding fathers understood - as John Adams put it - that when the independence of the civil executive is compromised, it corrupts
‘as necessarily as rust corrupts iron, or as arsenic poisons the human body; and when the legislature is corrupted the people are undone.’ Henry Adams,
Civil Service Reform, 109 The North American Review, No. 225, pp. 443-475 (Oct. 1869). The early Presidents maintained a strong but uncodified tradition of executive independence and rational administration over the first half-century or so of the nation. Id. But by the time of the Grant administration, things had definitely changed for the worse, as Adams’ great-grandson Henry observed:
the executive which had originally been organized as a permanent system with a permanent and independent existence, and a temporary head, was wholly changed in its nature and as a result, civil servants were terminated for arbitrary or political reasons, resulting in profound corruption through all levels of government. Id. The evils of this system were obvious to all - particularly after President Garfield was assassinated by his own political operative, who was unhappy with the President’s decisions in awarding patronage. This resulted in his successor, President Arthur, signing into law the Pendleton Act of 1883, the first formal step toward preserving an independent corps of civil servants immune from patronage.
Adoption of similar systems in the states was uneven at first - political machines like Tammany Hall exerted enormous pressure to preserve their corruption and forestalled reformers repeatedly over the decades. But when Franklin Roosevelt crushed Tammany Hall by shutting off patronage, and tying the grant of funding to explicit civil service requirements, the fortunes of the reform movement began to turn, and, through slow and incremental progress, good government triumphed. Cf. Gergely Ujhelyi,
Civil Service Rules and Policy Choices: Evidence from U.S. State Goverments, 6.2 American Economic Journal 338, 343-45 (2014). By 1950, more than half of states had comprehensive civil service protections. Id. at 347. By 1977, when Mississippi adopted comprehensive merit system protections, it was the 48th state in the nation to do so; robust civil service protections had become the norm. Id. Because patronage was the currency of machine politics, the direct result of the civil service system was to clean up the previously rampant corruption of the machine, from city hall to the state house.
There is a key difference between public and private employment: In the private sector, the
at will employment doctrine protects private enterprise against government intervention. Indeed, the private employer’s right to fire employees is itself a property right of the private employer which cannot be deprived without due process. Brock v. Roadway Express, Inc., 481 U.S. 252, 260 (1987). By contrast, in the public sector,
at will doctrine does just the opposite, shielding government corruption and arbitrary action. The
at will doctrine in public employment explicitly countenances arbitrary action by government. That is a fundamental difference.
The Transformation of Veterans Affairs Employment Law
If you are one of the thousands of Mississippians working for the VA, you should know that the law governing your work has been fundamentally transformed by Congress this summer. The President signed the "Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017" this summer, and just a few weeks ago signed the "Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017." Both statutes both weaken and strengthen the laws protecting VA employees in ways that it is crucial for all affected employees to understand.
Attend an hour-long seminar about these new changes in the law taught by Joel Dillard.
The seminar will be taught around shift changes in early December 2017 at convenient locations within a few blocks of the VA Hospital and VBO in Jackson, Mississippi.
Joel has worked for the General Counsel's office of the American Federation of Government Employees (AFGE), as well as the General Counsel's Office of the AFL-CIO. He has clerked for the Chair of Equal Employment Opportunity Commission (EEOC), and written EEOC Office of Federal Operations (OFO) opinions governing federal employees. He has clerked for Judge Dyk of the Federal Circuit, where he assisted in reviewing decisions of the Merit Systems Protection Board (MSPB). He has represented dozens of federal employees in disciplinary hearings, before the MSPB and the EEOC, as well as in federal court.
Sign up online in two easy steps:
- Register and select a seminar time by using the linked registration form: REGISTRATION FORM
- Make a small registration payment of $19 to cover facilities and materials, using this link: Secure online payment. Enter "VA Seminar Registration" on the memo line.
Too fast, too slow, too crooked, too straight:
The tangled net of federal employee civil rights
Federal employees have a tremendously complicated procedure to vindicate their civil rights. An employee who has been unlawfully terminated can easily miss significant advantages by using the wrong procedure.
Three Choices and No Time to Make Them
A terminated permanent employee can either file a union grievance, file an Equal Employment Opportunity claim with the Agency's internal EEO office, or file with the Merit Systems Protection Board. The choice typically must be made within a matter of only a few weeks. The procedures are widely different. For our purposes right now, I will focus only on the EEO and MSPB.
- EEO investigation - The employee contacts the EEO office and initiates an
informalcomplaint. After 30 days of
counselingthe employee requests a
formalinvestigation, and the Agency takes statements from all potential witnesses and gathers documents to complete a Report known as an ROI. The quality of these investigations varies dramatically from agency to agency.
- MSPB - Within 30 days, the employee files an appeal with the MSPB. There is a lightning fast discovery period - the attorney had better be on his game for this - and then a trial, usually within six months.
If you take the EEO route, you can always short-circuit it any time after 120 days to start an MSPB case or go to federal court.
After the MSPB
Initial Decision: Four Choices or More
After the MSPB Administrative Judge issues an initial decision against the employee the employee has four options to appeal.
- Petition for Review by the full MSPB: An appeal to the Board permits the broadest kind of
appellatestyle review. But right now there is only one MSPB member and the Board has no quorum. There are probably 1,500 petitions for review pending in front of the MSPB right now. So expect big delays and likely bad decisions as the Board affirms everything in sight in a desperate bid to catch up on the backlog.
- Appeal to the EEOC: If you don't appeal to the MSPB but wait and let the decision become final, you can appeal the EEO claims in the case to the Equal Employment Opportunity Commission's Office of Federal Operations. But the EEOC OFO is also significantly backlogged. Expect more lengthy delays.
- Appeal to the CAFC: The Court of Appeals for the Federal Circuit can also hear appeals from final MSPB decisions. Expect the judges to be most attuned to complex legal issues - rather than the basic fairness of the case.
- New trial in District Court: Finally, the most aggressive option is to simply start over with a brand new trial in District Court. Depending where you live, your reception in court will vary. Here in Mississippi, you will be taking your chances; some judges are great, and others less so.
To make things still more complex, these aren't either/or options: you can often string them together. The most thorough method is probably to start the case with the EEO process, then, when the ROI is just finishing, request an MSPB appeal, then file a petition for review with the MSPB, then an EEOC appeal, and only then go into federal court for a brand new trial. The case can sometimes take a decade - particular if you win some of those appeals and there are remands along the way.
If you have enough interest in this topic to have read this far, chances are good that you may need the help of an attorney experienced in representing federal employees. There are no easy answers, but at least the attorney can help you understand the consequences of your choices.
The Due Process Rights of College Students
The due process rights of students - and college students in particular - is an often murky area. This is no real surprise: Constitutional law is, unfortunately, among the least rational and clear of all areas of law. But here you can learn at least some general concepts and parameters.
The first concept to bear in mind is that - with the exception of the Thirteenth Amendment (slavery) - the Constitution only limits
state action. This means that your private colleges and universities, like Belmont and Mississippi College, are not restricted by the Constitution. This is why - in case you were wondering - private colleges can be religious while e.g. school-mandated prayer is impermissible in public colleges. This does not mean that private schools can do whatever they want, but it means that the discussion which follows is inapplicable to them. This discussion will be limited to public schools like Ole Miss or Jackson State.
Is a college education property?
The due process clause prohibits the state from
depriv[ing] any person of life, liberty, or property, without due process of law. And so the first question is whether a college student has any liberty or property interest in their studies. Let's start with property.
Because property itself is a creature of state law - your rights to your land, your car, your gun: all are created (and limited) by state law - the answer will depend on the particular laws of your state.
Thus, in Mississippi, the Mississippi Supreme Court has held that
the cases involving public universities demonstrate that a student's interest in attending a university is a property right protected by at least the procedural protections of the due process clause. UMMC v. Hughes, 765 So. 2d 528, 538 (Miss. 2000).
In Texas, by contrast, the Courts have ducked the question and so it is still not entirely clear whether college students have a property right in college. University of Texas Med. School v. Than, 901 SW 2d 926 n.1 (Tex. 1995)
The liberty interest in college education
The liberty interest has been recognized based on harm to a college student's reputation and future prospects because of the expulsion:
[W]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, the minimal requirements of due process must be satisfied. Goss v. Lopez, 419 U.S. 565, 574 (1975). This suggests that, to some extent, the scope of the liberty interest will depend on what the student is accused of doing, and how serious the discipline being imposed will be.
Disciplinary vs Academic actions
Disciplinary actions are one thing. But the Supreme Court has cautioned that the courts should not be involving themselves too heavily in second-guessing the academic decisions of public schools. As the Court said in a case involving a graduate medical school, court review of academic decisions would
further enlarge the judicial presence in the academic community and thereby risk deterioration of many beneficial aspects of the faculty-student relationship. Board of Curators of Univ. of Mo. v. Horowitz, 435 US 78 (1978)
The upshot is that academic dismissals are not really subject to much due process under the Constitution.
But what exactly is an academic action? It would seem obvious: flunking out. But unfortunately, certain courts with a special hostility to students have hooked on to a minor footnote in Horowitz and blown it out of all proportion to suggest that virtually everything is
academic and nothing disciplinary. Everything from lying to profanity to tardiness have - from time to time - been considered
academic by certain courts. As one court admitted:
The Court recognizes that this definition of academic dismissal is very broad and leaves a finding of disciplinary dismissal to a narrow range of cases. It justified its decision on pure policy grounds - again, trying to stay out of the school's business. These decisions are - at best - poorly reasoned. But that doesn't mean that they won't carry the day sometimes. Real people lost those cases.
What process is due?
Assuming this is a real disciplinary expulsion case coming from a state where college students have recognized property rights, the next question is what process is due. It depends on the gravity of the discipline - a suspension requires only notice and a chance to respond in an
informal give and take with the student, as the Supreme Court noted in Goss.
But an expulsion - particularly an expulsion on extremely serious charges - may require more. The analysis is pretty vague, and involves the weighing of three factors:
- How serious the threatened harm to liberty/property;
- How useful particular procedural tools would be at making sure the right result is reached;
- How annoying, expensive, or time-consuming the procedural tool would be to use.
Good facts and good lawyering are your best bet at success, but there are no guarantees whatsoever in this area of the law.
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