             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 United States Postal Service had accorded 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).



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                                     BACKGROUND

       Mr. Rawls is a mail-handler who was arrested on July 26, 1999 and charged with

attempted first-degree murder for allegedly shooting 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 Investigative 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 December 14, 1999. In March 2002 he was convicted of

the lesser-included offense of reckless endangerment, and sentenced to 11 months and 29

days imprisonment. He was incarcerated from July 26, 2002 until January 14, 2003. On

June 7, 2002 the agency notified Mr. Rawls of a second Investigative Interview, "to discuss

[his] misconduct on July 25, 1999 and subsequent 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 representative 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 that "all evidence, including other relevant information and

factors (Investigative Memorandums, Incident Reports, Attendance Records, Response to

charge(s), Past Disciplinary Actions, seriousness of the Offense, Policy, Postal

Regulations, etc.) would be considered prior to rendering a decision concerning the

appropriate disciplinary action to be taken." The 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 within fourteen days. It is unclear from the record whether Mr.


04-3252                                      2
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 was then in jail, and the agency refused to

participate in a work-release program. The agency then conducted another removal

procedure, with appropriate notice, resulting in removal effective December 16, 2002.

       Meanwhile, the agency appealed the AJ's decision 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 constitutional 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 reversed 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 requirement. However, the Board held that the notice

of the pre-decision Investigative Interview, when Mr. Rawls had already been convicted of a

crime, gave sufficient notice of the agency's charges, and that Mr. Rawls had an

opportunity to file a grievance before 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                                      3
       However, the Board also held, as the agency had conceded, that 5 U.S.C. §7513(b)

was violated as to both the suspension 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 the asserted error led the agency to reach a

different result than it would have reached in the absence or cure of the error. No review

by the full Board was sought of that decision.          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 for the period between the first and second

removals.2

                                       DISCUSSION

       Final decisions of the Merit 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 required 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                                       4
possible disciplinary action at the time. He further argues that the grievance procedure was

also an inadequate process because it did not offer a pre-decisional opportunity to respond.

       Due process with respect to government employees 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, either 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 employer'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 suspension, which in appropriate 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 true and support the proposed action." Id. (quoting

Loudermill, 470 U.S. at 545-46).

       The government argues that the Investigative Interview in this case satisfies the

Loudermill test because Mr. Rawls knew the charges against him and that disciplinary

action would be taken.

       By the time of Mr. Rawls' second Investigative Interview on June 12, 2002, the

agency had already issued a suspension, his criminal conviction was recent, and he knew

that he would soon be incarcerated. In the written notice of June 7, 2002, the agency


04-3252                                      5
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 further disciplinary action, and provided an

opportunity to rebut the charges.      See Loudermill, 470 U.S. at 545-46 ("Here, the

pretermination hearing need not definitively 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 the employee are true

and support the proposed action."). At the Interview, Mr. Rawls was present and had an

opportunity to respond.

       In the circumstances in this case, where Mr. Rawls was given notice that the

purpose of the second Investigative Interview was to "discuss your misconduct in July 25,

1999 and subsequent conviction," and the first Investigative 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 considerations indicate that the

pretermination 'hearing,' though necessary, need not be elaborate. We have pointed out

that '[the] formality and procedural 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.




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