04-3252 1 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

04-3252

WILLIE M. RAWLS, JR., Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

__________________________ DECIDED: April 18, 2005

__________________________

Before MICHEL, Chief Judge , NEWMAN and PROST, Circuit Judges. PER CURIAM.

Mr. Willie M. Rawls, Jr. appeals the decision of the Merit Systems Protection Board that found that the Un ited States Postal Service had a ccorded Mr. Rawls due process of law when it suspended and removed him from employment. 1 We affirm

.

1 Rawls v. United States Postal Service , 94 M.S.P.R. 614 (2003); on remand, No. AT0752020706-B-1, (MSPB Jan. 27, 2004).04-3252 2 BACKGROUND Mr. Rawls is a mail-handler who was a rrested on July 26, 1999 and charged with attempted first-degree murder for allegedly shoot ing a nightclub bouncer several times with a shotgun the previous day. The agency issued notices to Mr. Rawls on August 11 and 16, 1999, notifying him of an Inve stigative Interview "to discuss the criminal charges." The Interview occurred on August 18, 1999, and he was placed on indefinite suspension the next day. He was informed that he could file a grievance within fourteen days. Mr. Rawls was indicted on De cember 14, 1999. In March 2002 he was convicted of the lesser-included offense of reckless endangerm ent, and sentenced to 11 months and 29 days imprisonment. He was incarcerated fr om July 26, 2002 until January 14, 2003. On June 7, 2002 the agency notified Mr. Rawls of a second Investigative In terview, "to discuss [his] misconduct on July 25, 1999 and subs equent conviction." Mr. Rawls and his representative participated in the Interview on June 12, 2002, where Mr. Rawls refused to give a statement. Mr. Rawls and his union r epresentative signed a one-page document with the subject line "Conduct unbecoming of a Postal Employee" that gave written notice to Mr. Rawls and his representative t hat "all evidence, including ot her relevant information and factors (Investigative Memorandums, Incident Reports, Attendance Records, Response to charge(s), Past Disciplinary Actions, seri ousness of the Offense, Policy, Postal Regulations, etc.) would be considered prio r to rendering a decision concerning the appropriate disciplinary action to be taken." T he Investigative Interview was followed by a Notice of Decision two days later to remove him from service, effective June 21, 2002, based on the criminal conviction. The Notice of Decision informed Mr. Rawls that he had the right to file a grievance wit hin fourteen days. It is unclear from the record whether Mr.04-3252 3 Rawls filed a grievance, but Mr. Rawls appealed to the MSPB. At the hearing before an administrative judge the agency conceded that it had not issued notices proposing the suspension or removal as required by 5 U.S. C. §7513(b). The agency argued that the error was harmless, and that no constitutional rights were violated. The AJ reversed both the suspension and the removal, on statutory and constitutional grounds, and ordered that Mr. Rawls be returned to work. Mr. Rawls wa s then in jail, and the agency refused to participate in a work-release program. The agency then conducted another removal procedure, with appropriate notic e, resulting in removal effective December 16, 2002. Meanwhile, the agency appealed the AJ's decisi on to the full Board, which reversed the AJ's holding of constitutional violation. The Board held that Cleveland Board of Education v. Loudermill , 470 U.S. 532 (1985), as elaborated by Gilbert v. Homar , 520 U.S. 924 (1997), established that when the penalty is suspension, a post-suspension opportunity to respond can satisfy the employee's constitu tional right to minimum due process "as the particular situation demands," referring to the imposition of felony charges. 520 U.S. at 930, 934. The full Board revers ed the AJ's ruling with respect to minimum due process as applied to the 1999 suspension procedure. The Board recognized that a termination of employment may require more rigorous process to satisfy the constitutional requirem ent. However, the Boar d held that the notice of the pre-decision Investigative Interview, when Mr. Rawls had alre ady been convicted of a crime, gave sufficient notice of the agen cy's charges, and that Mr. Rawls had an opportunity to file a grievance bef ore the effective date of the removal. The Board held that the Loudermill and Homar standards of minimum due process were met by the 2002 removal procedures, and reversed the AJ's contrary holding.04-3252 4 However, the Board also held, as the agen cy had conceded, that 5 U.S.C. §7513(b) was violated as to both the su spension and the removal, by the agency's failure to issue the proposal notices required by statute. The Board remanded to the AJ, to provide the opportunity for a hearing on the question of whether the error was harmful. On remand, the AJ held that Mr. Rawls had not shown that t he asserted error led the agency to reach a different result than it would have reached in t he absence or cure of t he error. No review by the full Board was sought of that dec ision. Mr. Rawls here appeals only the constitutional question of due process under Loudermill and Homar as applied to the first removal, for Mr. Rawls seeks back pay fo r the period between the first and second removals. 2
DISCUSSION Final decisions of the Meri t Systems Protection Board are affirmed unless they are (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures requir ed by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. §7703(c); Fernandez v. Dep't of the Army , 234 F.3d 553 (Fed. Cir. 2000). Mr. Rawls argues that he was not afforded Due Process as required by the Fifth Amendment to the Constitution. Specifically, Mr. Rawls argues that he was not afforded a pre-termination opportunity to respond. Mr. Rawls maintains that the Investigative Interview was an inadequate process because he did not know that termination was a

2 The second removal was upheld, Rawls v. United States Postal Service , MSPB No. AT0752030304-I-1 (May 2, 2003), and is not at issue here.04-3252 5 possible disciplinary action at the time. He fu rther argues that the gr ievance procedure was also an inadequate process because it did not offe r a pre-decisional oppo rtunity to respond. Due process with respect to government em ployees was described by the Supreme Court in Loudermill , supra , which set the minimum criteria of notice and an opportunity to respond: The opportunity to present reasons, eit her in person or in writing, why proposed action should not be taken is a fundamental due process requirement. The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the em ployer's evidence, and an opportunity to present his side of the story. 470 U.S. at 546 (citations omitted). Due process also requires "an opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge , 424 U.S. 319 (1976) (quoting Armstrong v. Manzo , 380 U.S. 545, 552 (1965)). Termination requires a pre-disciplinary hearing, in contrast to suspens ion, which in appropria te circumstances may be effected with only a post-disciplinary hearing. Homar , 520 U.S. at 935. The purpose of the pre-termination hearing is to provide "an initial check against mistaken decisions -- essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are tr ue and support the proposed action." Id. (quoting Loudermill , 470 U.S. at 545-46). The government argues that t he Investigative Interview in this case satisfies the Loudermill test because Mr. Rawls knew the char ges against him and that disciplinary action would be taken. By the time of Mr. Rawls' second Invest igative Interview on June 12, 2002, the agency had already issued a suspension, his crim inal conviction was recent, and he knew that he would soon be incarcer ated. In the written notic e of June 7, 2002, the agency04-3252 6 stated the charges against him, namely the misconduct of July 25, 1999 and subsequent conviction of criminal charges. The Investigative Interview gave Mr. Rawls notice that the charges would be considered in determining fu rther disciplinary action, and provided an opportunity to rebut the charges. See Loudermill , 470 U.S. at 545-46 ("Here, the pretermination hearing need not defin itively resolve the propriety of the discharge. It should be an initial check against mistaken decisions -- essentially, a determination of whether there are reasonable grounds to believe that the charges against t he employee are true and support the proposed action."). At the Inte rview, Mr. Rawls was present and had an opportunity to respond. In the circumstances in this case, w here Mr. Rawls was gi ven notice that the purpose of the second Investigative Interview wa s to "discuss your misconduct in July 25, 1999 and subsequent conviction," and the first Inve stigative Interview had already resulted in indefinite suspension of Mr. Rawls, the strictures of constitutional due process were satisfied. See Loudermill , 470 U.S. at 545 ("The foregoing cons iderations indicate that the pretermination 'hearing,' though necessary, need not be elaborate. We have pointed out that '[the] formality and proc edural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.'") (quoting Boddie v. Connecticut , 401 U.S. 371, 378 (1971)). We have considered all of the arguments presented by Mr. Rawls, but discern no basis for reversal of the Board's decision. No costs.