In Villareal v. Bureau of Prisons, a corrections officer was terminated for misconduct. Through union processes, he first grieved the removal action, then sought arbitration. His removal was sustained. He then appealed to the court of appeals, seeking review of the arbitrator’s decision.
He presented multiple arguments to the court of appeals challenging the correctness of the agency’s removal decision and the arbitrator’s affirmance of it. All the arguments before the court failed except for one.
On appeal to the court of appeals, the union for the first time argued that the length of time it took for the Bureau to decide to terminate the employee violated his due process. Surprisingly, the court of appeals found this argument to be quite strong, with the potential to cause the removal action to fail. However, because the union had not raised this argument below, the court of appeals decided it could not consider it for the first time at the appellate stage. Thus, the court of appeals affirmed the employee’s removal.
The delay claim raised in Villareal is as follows: the employee was referred for investigation in December 2012 and removed in May 2016, about 3.5 years later. The Bureau was able to explain the first eight months by pointing to the length of time of the investigation. But then it took the Bureau nearly two years from the end of the investigation to actually issue the employee the proposed removal letter, and another year to issue the decision letter.
The court found that the Bureau did not provide a “legitimate justification for the remaining delay” and that the entire 3.5-year process was “patently unreasonable.”
The court continued to say that a “delay of this sort could vitiate an agency decision if it was prejudicial.” However, the court noted that no such claim of prejudice was made on behalf of the employee during the grievance or arbitration process.
The court noted Merit Systems Protection Board case law that a delay can “vitiate an agency decision” if the employee shows that the delay was harmful to his or her defense. Thus, while there was a basis in law for a claim of delay, no such claim was made for the employee in the proceedings below.
In dismissing the delay claim, the court closed by reminding the employee that “arguments raised for the first time on appeal are generally waived.” And, so, the employee’s removal was upheld.
This case is a reminder of the importance to identify all of your strongest claims during the initial stages of the adverse action process. For the employee in Villareal, it appears that in his court of last resort he may have won his case, but for the failure to raise a viable claim in the proceedings below.
This is not to suggest that you raise every or any claim to challenge a personnel action. That strategy often fails too, albeit for other reasons. Rather, carefully think through all claims that could be made and identify those worth raising so as to preserve potentially viable claims during all phases of the adverse action proceeding.
Debra Roth is a partner at Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. Email your legal questions to firstname.lastname@example.org.