Wednesday, January 21, 2009

Constitutional Claims on Behalf of Government Employees

Government employees are often highly-talented people who could work for a lot more money in the private sector. Apart from a desire to perform public service, what motivates people to Government employment? Frequently, the answer is job security.

Unlike most “at will” jobs, many Government employees’ jobs become a form of property. Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993) (“A government employee has a constitutionally protected property interest in continued employment when the employee has a legitimate claim of entitlement to the job.”). Certainly, the Government may be justified when it kicks an employee out of a particular job, or even out of the Government all together, for non-performance or misconduct – in the same way the Government can take a piece of private land when justified, i.e., when needed to, for example, preserve an endangered species. However, the Government cannot act arbitrarily. This is the essence of Due Process, which protects not only Government employees, but all of us. The Civil Service exists so that elected officials and partisans cannot arbitrarily fill the Government’s ranks with their own lackeys – but rather, must respect the rights of those who do their jobs well and who have committed themselves to lives of public service.

There are two types of constitutional Due Process at issue here – procedural Due Process, and Due Process liberty interests. Though it is not always an easy argument, under certain circumstances, some Courts recognize that both can be applied where Government employees’ jobs are taken unlawfully.

Procedural Due Process means that Government employees cannot be deprived of their employment without notice of the proposed action and a meaningful opportunity to respond. See generally Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-45, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The Federal Government, for example, has developed procedures by which many employees are given notice of the charges and specifications against them, with thirty days to respond, orally and in writing, before an action can be finalized.

A Due Process liberty interest relates to a situation in which the Government’s action has not only deprived someone of a particular job, but of the ability to practice in a whole profession. For example, if someone were specially trained in a narrow field, and his/her whole career was in that field, and the Government’s removal action lacked Due Process and effectively prevented him/her of ever working again in that field, then he/she may have been deprived of a Liberty Interest. See generally Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971).

These constitutional theories admittedly have limited application. First of all, Equal Employment Opportunity matters are not constitutional – they are governed by specific statutory provisions. However, an employee who was discriminated against, who was also removed without Due Process (i.e., without notice and an opportunity to respond), may have both EEO and constitutional claims. See, e.g., Ethnic Employees of the Library of Congress v. Boorstin, 751 F.2d 1405, 1415 (D.C. Cir. 1985); White v. Gen. Servs. Admin., 652 F.2d 913, 917 (9th Cir. 1981).

The most significant limitation on constitutional claims by Government employees is the existence of statutory mechanisms, applicable to many (but not all), which Courts have found take the place of constitutional remedies. So, for example, if a Federal employee has been working more than one year, in most cases, he or she is outside the probationary period, and therefore, his/her relief is not through constitutional claims, but through the Civil Service Reform Act, which created the Merit Systems Protection Board (MSPB) to hear Federal employees’ claims. On the other hand, Federal employees without MSPB rights can still, some courts have held, assert constitutional claims. See, e.g., Spagnola v. Mathis, 859 F.2d 223, 229-230 (D.C. Cir. 1988) (per curiam); American Federation of Government Employees Local 1 v. Stone, 502 F.3d 1027 (9th Cir. 2007).

For example, in a case that Bryan Schwartz Law is currently handling, the Court recognized that a non-management Postal employee who lacks veterans’ preference can raise constitutional claims in addition to EEO claims. Ulloa v. Potter (USPS), No. CV 07-1567-PHX-SMM (D.Ariz. June 24, 2008). In the case in question, the Postal Service removed my client discriminatorily, and also without notice and an opportunity to respond to the proposed removal. In particular, after being sexually harassed, while my client was out on worker’s compensation, the Government simply terminated her, without giving her any formal opportunity to reply. The Court has held that we can assert constitutional claims.

Note that, when arguing a Federal employee’s constitutional employment claim, one cannot, typically, hope for legal damages (based on Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1971)), but rather, must seek equitable relief. In other words, constitutional claims can be used to put an employee into the job (with back pay and lost benefits), get a clean record, or get an injunction -- but cannot, for example, get compensatory damages for emotional distress. Clark v. Library of Congress, 750 F.2d 89, 104-105 (D.C. Cir. 1984).

DISCLAIMER: Nothing in this posting is intended in any way to form an attorney-client relationship or any other contract. It is designed solely to provide general information about one area of the practice at Bryan Schwartz Law. Be mindful of any deadlines you have approaching that relate to your legal situation, and make sure that you meet them. Bryan Schwartz Law does not assume any responsibility for advice given regarding any aspect of your case until you have a signed legal services agreement engaging the firm’s representation.


  1. What happens when the federal official who deprived someone of due process invokes qualified immunity? I understand the necessity of protecting government officials in their discretionary functions, but are internal employment matters discretionary or ministerial? What determines what procedures are due?

    Payment for Intentional Infliction of Emotional Distress is available under FTCA claims. Why isn't it available under a Bivens claim?

    If both a Bivens and FTCA claim can be pleaded, should you plead both, or does that risk a dispositive motion if there is a judgement on the FTCA claim. Can you plead both and drop one or the other after discovery so you know which claim is best?

  2. Unfortunately, the Supreme Court overturned Spanola. The conservatives on the court despise implied causes of action and limit application of Bivens only to those causes of action already established. My own case seeks to establish a cause of action for a corruption of the statutory scheme of redress, i.e. The offending government officials ruled themselves not guilty in a grievance. Due process claims are difficult to make because they dont fit well within the EEOC framework and the MSPB has limited jurisdiction. Rather than fire people, government managers use actions that dont establish MSPB jusrisdiction and therefore are committed to agency discretion. Once could file an OSC complaint for a prohibited personnel practice and follow up with an MSPB appeal, however the PPPs protect only certain types of employees for certain enumerated personnel actions. The modus operandi of government managers is simply to make you so miserable that you will quit. They prolong the exhaustion process in order to exhaust your time, money, and patience. Every MSPB and EEOC case that goes against an employee becomes a template for insidious managers, HR officials, and counsel to follow. Congress needs to examine what is actually happening and take corrective action. The MSPB and EEOC are merely carrying water for the agencies, and clearing their dockets by granting dispositive motions.