News from the Federal Circuit: On August 24, 2018, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Villareal v. Bureau of Prisons, No. 2017-2275. The Court upheld Mr. Villareal's removal, finding no per se due process violation in the long delay in deciding to impose discipline.
Mr. Villareal worked as a corrections officer for the Bureau of Prisons at a federal prison in Houston, TX. Mr. Villareal came under investigation by the Office of Inspector General (OIG) in December 2012 for various alleged infractions, resulting in a 7 month OIG investigation. While the investigation was ongoing, Mr. Villareal was laterally reassigned to a position without prisoner contact, costing Mr. Villareal overtime opportunities. Mr. Villareal's then-first line supervisor internally proposed a suspension for Mr. Villareal in 2014, which was never formally issued. After a change in supervisors, Mr. Villareal's new first-line supervisor proposed removal in June 2015, nearly two years after the end of the OIG investigation. 11 months later, in May 2016, the Agency removed Mr. Villareal.
Mr. Villareal's union, AFGE Local 1030, grieved the removal, ultimately invoking arbitration under its collective bargaining agreement. The arbitrator, however, found in favor of the agency and upheld the removal. Mr. Villareal then appealed the arbitrator's decision to the Federal Circuit under statutory provisions that allow the Federal Circuit to review adverse action arbitration decisions in the same fashion it reviews Merit Systems Protection Board (MSPB) decisions.
On appeal, the Federal Circuit panel affirmed the arbitrator's decision, and upheld the removal. The Court first found no double punishment in Mr. Villareal's reassignment, as a lateral reassignment (even one with less overtime opportunities) is not a disciplinary action. The Court expressed concern in the nearly 3 1/2 year delay between the start of the OIG investigation and Mr. Villareal's removal. However, the Court refused to find an automatic due process violation in the delay. Instead, a due process violation only occurs if the delay prejudiced Mr. Villareal's defense to the adverse action. This record lacked evidence of such prejudice, and Mr. Villareal had failed to argue prejudice before the arbitrator (even though it had been argued at the grievance stage). The Court found no due process violation in the change in deciding official. The Court also held that no due process violation occurred from nondisclosure of the deciding official's "informal experiments" to test certain factual allegations in the case, finding that the evidence was not "new and material" and was not relied upon in the removal decision.