Notice & Comment

D.C. Circuit Review – Reviewed: The Bannon Case and Two Federal Employment Matters

The D.C. Circuit published three opinions last week.

United States v. Bannon was the most newsworthy of last week’s cases. Steve Bannon was subpoenaed to testify before Congress. He refused, citing advice of counsel. In 1961, the D.C. Circuit held that there is no “advice of counsel” defense to prosecution for contempt of Congress. In Bannon’s case, the court of appeals followed that precedent and affirmed his conviction under 2 U.S.C. § 192. Judge Garcia wrote for the unanimous panel, which included Judge Pillard and Judge Walker. Bannon’s main argument for reversal was that he had not “willfully” failed to respond because he did not know that he was violating the law. Rather, he had relied in good faith on his counsel’s advice. The D.C. Circuit held that the court’s precedent foreclosed that argument, which, if adopted, “would undermine the statute’s function”: “effectively enforcing congressional subpoenas would be exceedingly difficult if contempt charges required showing that a failure to appear or refusal to answer questions was not just deliberate and intentional, but also done in bad faith.” This holding, the court noted, raised no constitutional concern regarding executive privilege because “President Trump did not communicate an intent to invoke executive privilege to the Committee, and Bannon never raised executive privilege as an affirmative defense to the contempt charges in district court.”

In Esparraguera v. Dep’t of the Army, the D.C. Circuit addressed a due process challenge to the removal of a career appointee in the Senior Executive Service (SES). A career SES appointment may be removed for “less than fully successful executive performance.” According to the allegations in the complaint, the appellant was removed from the SES and demoted to a non-SES position in violation of the Due Process Clause. The issue on appeal was whether she had a constitutionally protected property interest in SES status.

Judge Garcia wrote an opinion for the Court, which Senior Judge Ginsburg joined, holding that the relevant statutes and regulations created a property interest in SES status. The statute’s requirement that the government find “less than fully successful executive performance” before removing a career SES employee was “similar to language that our courts and others have held creates a property interest by conditioning removal on poor job performance.” Other features of the statutory and regulatory scheme reinforced the conclusion that the position was not at will. For one, the statute requires an objective performance appraisal system, which the Army had created with its “detailed regulations” that involved “specific metrics.” Other statutory provisions “indicate[d] that Congress intended [the ‘less than fully successfully executive performance’ standard] to be a meaningful constraint on removal from the SES.” Having held that the appellant had a constitutionally protected property interest, the court of appeals readily concluded that the complaint adequately alleged that the government’s process did not provide notice and an opportunity to respond.

Judge Henderson dissented and would have held that there was no constitutionally protected property interest in an SES career appointment. Judge Henderson stressed that the appellant had not been dismissed but rather demoted to a non-SES civil service position. This distinguished cases upon which the court relied. When it comes to demotion, Judge Henderson reasoned, something more precise than the “less than fully successful performance” standard should be required to create a constitutionally protected interest. That was particularly true because the demotion decision was vested in a single decisionmaker. In response, the majority stressed that “the crux of our inquiry remains whether the removal decision – however many people make it – is subject to meaningful substantive constraints that ‘guide’ the decisionmaker(s).” Here, the decisionmaker could not “remove an employee under [the statute] without first making the requisite findings and assigning a final rating of Level 1 or 2.” That distinguished the SES removal scheme from an at-will scheme.

Seed v. EPA was also a federal employment case. A former EPA employee sued for age discrimination, alleging that the agency demoted her to a junior position while promoting younger employees. In an opinion by Senior Judge Rogers, joined by Judge Rao and Judge Childs, the D.C. Circuit held that the former employee lacked Article III standing on redressability grounds. The court parsed the different remedies that the employee requested and concluded that the record did not establish standing. The employee sought backpay, but there was “no ground [in the record] on which the court could find any difference in earnings or benefits to compensate as back pay.” As for reinstatement or front pay, those claims for relief had been forfeited. Nor did the employee have standing to seek injunctive or declaratory relief; she had no “plans to return to EPA” and therefore did not face an injury that would be redressed by those forms of relief. Finally, there was a different problem with the claim for compensatory damages: The ADEA’s federal-sector provisions did not unequivocally waive the U.S.’s sovereign immunity for such relief.

Print Friendly, PDF & Email