US Supreme Court holds it has jurisdiction to review decisions of the Court of Appeals for the Armed Forces of the United States

US Supreme Court holds it has jurisdiction to review decisions of the Court of Appeals for the Armed Forces of the United States

Ortiz v. United States, Docket: 16-1423, Government & Administrative Law

In addition to "Company Punishment,"* a non-judicial proceeding, the United States “court-martial system” provides for an initial judicial determination of the guilt or innocence of military personnel charged with one or more violations of the federal Code of Military Justice. If the accused is found guilty, the court levies the punishment to be imposed.**

There are four appellate courts: the Court of Criminal Appeals (CCA) for, respectively, the Army, Navy-Marine Corps, Air Force, and the Coast Guard. CCA decisions may be subject to review by the Court of Appeals for the Armed Forces (CAAF). CAAF is a “court of record” composed of five civilian judges.

Keanu Ortiz, an Airman First Class, was convicted by a court-martial of possessing and distributing child pornography. The penalty imposed, two years’ imprisonment and a dishonorable discharge. Ortiz asked the CAAF to review the matter, challenging the qualification of one of its members, Colonel Martin Mitchell, to serve on the CCA panel because he had been appointed to the Court of Military Commission Review (CMCR) by the Secretary of Defense. Further, to moot a possible constitutional problem with the assignment, the President (with the Senate’s advice and consent) also appointed the Colonel Mitchell to the CMCR pursuant to §950f(b)(3).

As Judge Mitchell participated in Ortiz’s CCA appeal, Ortiz claimed that Judge Mitchell’s CMCR appointment barred his continued CCA service under both a statute and the Constitution, contending that the appointment violated §973(b)(2)(A), which provides that unless otherwise authorized by law,” an active-duty military officer “may not hold, or exercise the functions of,” certain “civil office[s]” in the federal government. Ortiz also argued that the Appointments Clause prohibits simultaneous service on the CMCR and the CCA.

The CAAF denied Ortiz's appeal.

Ultimately the Supreme Court said that it had jurisdiction to review the CAAF’s decisions, explaining that "The judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex."

The Supreme Court's decision notes that Professor Aditya Bamzai had filed a brief amicus curiae with the Supreme Court contending that cases decided by the CAAF do not fall within Article III’s grant of appellate jurisdiction to the Supreme Court. The Supreme Court, citing Marbury v. Madison, 1 Cranch 137, said that then Chief Justice Marshall had explained that “the essential criterion of appellate jurisdiction” is “that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.”

Here, said the Supreme Court, Ortiz’s petition asks the Supreme Court to “revise and correct” the latest decision in a “cause” that began in and progressed through military justice “proceedings.”

Unless, opined the court, Chief Justice Marshall’s test implicitly exempts cases instituted in a military court, the case is now appellate. But, the court concluded, "There is no reason to make that distinction. The military justice system’s essential character is judicial. Military courts decide cases in strict accordance with a body of federal law and afford virtually the same procedural protections to service members as those given in a civilian criminal proceeding. The judgments a military tribunal renders “rest on the same basis, and are surrounded by the same considerations[, as] give conclusiveness to the judgments of other legal tribunals.”

Justice Kagan delivered the opinion of the court, in which Justices Roberts,  C. J., and Justices Kennedy, Thomas, Ginsburg, Breyer and Sotomayor joined. Justice Thomas filed a concurring opinion and Justice Alito filed a dissenting opinion, in which Justice Gorsuch joined., holding that the Court has appellate jurisdiction to review the CAAF’s decisions. "In exercising that jurisdiction, [the majority said] that Judge Mitchell’s simultaneous service on the CCA and the CMCR violated neither §973(b)(2)(A)’s office-holding ban nor the Constitution’s Appointments Clause" and affirmed the judgment below."

* 10 U.S. Code Chapter 47 - UNIFORM CODE OF MILITARY JUSTICE, §815 - Art. 15. Commanding officer’s non-judicial punishment.

** See, generally, 10 U.S. Code Chapter 47, §816 - Art. 16. Courts-martial classified. See, also, New York State Military Law, Article 7 - Code of Military Justice.

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/17pdf/16-1423_bq7c.pdf

Placing an employee on involuntary leave pursuant to Civil Service Law §72.5

Placing an employee on involuntary leave pursuant to Civil Service Law §72.5

NYC Office of Administrative Trials and Hearings, OATH Index No. 1865/18

Based on statements a customer service representative [Anonymous] was reported to have made to co-workers, the Appointing Authority [Authority] placed Anonymous on involuntary leave pursuant to Civil Service Law §72.5 in consideration of safety concerns about Anonymous' presence at the work place.

Anonymous filed a timely objection to being placed on §72.5  leave, typically refered to as "emergency leave." After a two-day hearing during which Authority presented the testimony of a psychiatrist, who examined Anonymous and concluded he was unfit, as well as the testimony of two of Anonymous’ co-workers and Anonymous' testimony on his own behalf and the testimony of a psychiatrist called by Anonymous a witness, OATH John B. Spooner found that Authority's failed to meet the standard justifying its placing Anonymous on emergency leave.

Judge Spooner said the Authority did not prove that [1] it had probable cause to believe that Anonymous was dangerous or [2] his presence in the workplace would “severely interfere" with its operations, or [3] Anonymous was likely to be violent. Accordingly, said the ALJ, Authority failed to demonstrate that placing Anonymous on an “extraordinary” pre-hearing suspension authorized by §72.5 was necessary.

Judge Spooner recommended that Authority's petition be dismissed and that Anonymous be awarded back pay for the period of pre-trial leave. Authority, however, rejected the ALJ’s recommendation, finding that it had proved that, due to his psychiatric disorders, Anonymous was unfit to work. Authority also found that Anonymous was not entitled to back pay for the period of prior to his hearing as it had a sufficient basis to institute emergency leave.*

The "standard Section 72 procedure" is triggered by the appointing officer's determina­tion that the individual is physically or mentally unable to perform his or her duties and should be placed on leave of absence and CSL Section 72.1 requires completing a number of procedural steps before the individual may actually be placed on Section 72 leave over his or her objections.

 
In contrast, Section 72.5 relied upon by Authority in Anonymous' situation, essentially sets out an exception to the "standard procedure" that allows it to be truncated only in the event the appointing authority determines that there is probable cause to believe that the continuation of the individual on the job poses a danger to persons, property or the agency's operation.

The "standard procedure" followed under Section 72 may be summarized as follows:

1. The appointing authority determines than an employee is unable to perform the duties of his or her position by reason of an ordinary disability.

2. The appointing authority requires such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or munici­pal commission having jurisdiction.

3. The appointing authority provides the employee and the civil service department or commission, in writing, the facts that constitute the basis for the judgment that the employee is not fit to perform the duties of his or her position prior to the medical examination.

4. If the medical officer certifies that the employee is not physically or mentally fit to perform the duties of his or her position, the appointing authority notifies the em­ployee of any proposed Section 72 leave and the proposed date on which such leave is to commence.

5. The employee is also advised of his or her right to object to his or her placement on the proposed Section 72 leave of absence and to request a hearing.

6. If the employee requests a hearing, the appointing authority is to give the employee a hearing within 30 days of the receipt of the request. The appointing authority is also required to provide the employee and the employee's personal physician or authorized representative, with copies of all diagnoses, test results, observations and other data supporting the appointing authority's decision.

7. The employee is not to be placed on leave until a final determination is made by the appointing authority after the hearing is held.

As is typical in administrative actions of this type, the appointing authority has the burden of proof and must provide the evidence that the employee is mentally or physically unfit to perform his or her duties.

Following the receipt of the hearing officer's findings and recommendations, the ap­pointing authority may decide to (1) uphold the original proposed notice of leave of absence, (2) withdraw such notice or (3) modify the notice as may be appropriate.

If the final determination is to place the individual on Section 72 leave, the employee is to be advised of his or her right to appeal the determination to the civil service commis­sion having jurisdiction as provided by CSL Section 72.3.

* §75.2, in pertinent part, provides "5. Notwithstanding any other provisions of this section, if the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with operations, it may place such employee on involuntary leave of absence immediately; provided, however, that the employee shall be entitled to draw all accumulated unused sick leave, vacation, overtime and other time allowances standing to his or her credit...."

The Anonymous decision, including Authority's justification for rejecting the OATH ALJ's recommendation, is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1865.pdf

Considering the employee’s history of misconduct, her inappropriate treatment of patients, and other factors, the hearing officer recommended termination of employment

Considering the employee’s history of misconduct, her inappropriate treatment of patients, and other factors, the hearing officer recommended termination of employment

NYC Office of Trials and Hearings, OATH Index No. 486/18

The Appointing Authority served disciplinary charges against an employee alleged the employee, a service aide:

1) made disrespectful comments to her supervisor;

2) announced that there was going to be a fight and instigated a verbal altercation with a co-worker;

3) used profanity while snatching a meal tray from a patient; and

4) took a meal tray from a patient before he had finished eating and rudely commented to the patient that he was inadvertently exposed.

After a three-day trial, OATH Administrative Law Judge Joycelyn McGeachy-Kuls found that Appointing Authority had proven the charged misconduct.

Taking into consideration service aide's history of misconduct, the disruption that she caused in the workplace and her inappropriate treatment of patients, Judge McGreach-Kuls recommended that the aide be termination from her position.

The Appointing Authority adopted the ALJ's findings and recommendation and terminate the service aide from her position.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-486.pdf

The burden of serving a proper "notice to appear" at an administrative hearing is the responsibility of the charging party

The burden of serving a proper "notice to appear" at an administrative hearing is the responsibility of the charging party

Pereira v Sessions, USSC, Docket 17-459

The Illegal Immigration Reform and Immigrant Responsibility Act provides that a nonpermanent resident who is subject to removal may be eligible for cancellation of removal if he or she has “been physically present" in the U.S. for a continuous period of not less than 10 years.* Continuous presence is viewed as interrupted when the alien is served a w written notice to appear and specifying the “time and place" of proceedings. In the Pereira decision the Supreme Court commented that the Department of Homeland Security often serves notices that fail to specify the time, place, or date of initial removal hearings.

Pereira was served with a “notice to appear” that ordered him to appear at a date to be set in the future. Ultimately a notice was mailed to Pereira setting the date and time for his hearing but it incorrectly addressed and Pereira was able to show that he had never received the notice and contended that this meant that he had been continuously present for more than 10 years as the so-called "stop-time" rule had not been triggered, which would have been the case had proper service been effected advising him of the date, time and place of his "deportation hearing."

The Supreme Court, reversing a Circuit Court of Appeals ruling, explained that "A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear” under section 1229(a) and does not trigger the stop-time rule."

Accordingly Pereira was able to successfully claim that he had been "physically present" in the United States for more than ten years.

The same theory is applied in New York State cases involving "proper service" of a notice of discipline in DiPillo v Jacknis.**

DiPillo was dismissed from his position with Westchester County after being found guilty of the charges filed against him by the hearing officer. The disciplinary hearing, however, was conducted in absentia. Claiming that he had not received any written notice of the charges preferred against him as required by Civil Service Law §75, the employee sued seeking to [1] have the disciplinary determination vacated and [2] reinstatement to his position with salary and benefits retroactive to the date of his termination.

According to the decision, the notice of disciplinary action was sent to DiPillo by Certified Mail but that the envelope was returned as "unclaimed" by the United States Postal Service. The envelope also indicated that the letter was mailed to a Briarcliff Manor, NY 10501 but that the address used by the appointing authority was "incomplete." Also troublesome to the court was the fact that the employee "could have been served personally at his place of employment after the notice came back unclaimed.” At the very least, said the court, the appointing authority" could have inquired as to the employee’s address to ensure that the notice was properly sent.”

Supreme Court found that under the circumstances the employee had not been served with the written notice of disciplinary charges mandated by Section 75 of the Civil Service Law and granted the employee’s petition, citing Bellatoni cited DelBello v. New York City Transit Authority, 151 AD2d 479, in support of its ruling.

In DelBello the Appellate Division affirmed a Supreme Court decision annulling and vacating a determination terminating DelBello’s employment. In that case, hearing notices were sent to an address from which DelBello had moved and all notices were returned to the Authority unopened and marked "moved-left no address" and that the Authority failed to take any other steps to notify the DelBello of the pending charges.

In the words of the Appellate Division “Clearly mailing the notice to the petitioner's last known address was not notice reasonably calculated, under all the circumstances, to apprise DelBello’s of the pendency of the [disciplinary proceedings] and afford [him] an opportunity to represent [his] objections.” In contrast, noted the Appellate Division, the Authority regarded the failure of [DelBello] to receive notice of the hearing and charges as [DelBello’s] problem”.

Supreme Court remanded the matter to the appointing authority, "to be heard before a different Hearing Officer."

In contrast, an employee’s claim that she did not receive notice of disciplinary charges mailed to her was rebutted by employer’s evidence of proper mailings. In a case involving the Board of Educ. of City School District of City of New York,*** the court noted that the New York City Board of Education [BOE] sent a “notice of charges” to a tenured teacher by certified mail, return receipt requested and by regular mail.

Although the certified mail copy of the Charges was returned to BOE as “unclaimed,” the regular mail copy of the Charges was never returned. BOE subsequently again sent a written statement detailing the Charges against the teacher in accordance with Education Law §3020-a by certified mail, return receipt requested, and by regular mail.  Again the certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned. A third mailing was sent via certified mail, return receipt requested, and by regular mail. This time neither copy was returned to DOE.

Ultimately a Disciplinary Panel held a hearing in absentia**** and the teacher was found guilty of the charges filed against her and terminated. When BOE refused to reinstate her the teacher filed a petition seeking a court order directing BOE to reemploy her and award her back salary and benefits contending that she never received the regular mailings of the Notice of Charges and the written statement detailing the Charges “because mail often gets lost in her large apartment complex.”

Supreme Court said that “in an Article 78 proceeding, the court’s role is to determine whether the challenged administrative action had a rational basis or whether it was an arbitrary and capricious action [and] the administrative action must be upheld unless it ‘shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a law.” In this instance the court found that BOE “properly mailed multiple copies of the Notice of Charges and the actual Charges." Only the certified mail copies were returned, and they were returned as unclaimed, indicating that the teacher failed to pick them up from the post office, not that they were improperly sent.

Given BOE’s proof of mailings, the court was not persuaded by the teacher’s statement that she did not receive the Notice of Charges or the Charges. In the words of the court, the teacher’s “bald assertion of non-receipt is insufficient to overcome the presumption that properly sent mail is received.” Accordingly, Supreme Court held that it was not arbitrary or capricious for BOE "to proceed with the inquest after properly mailing multiple letters informing the teacher of the situation" and dismissed her petition.

* 8 U.S.C. 1229(b)(1)(A).

** Not published in the Official Reports. However, the decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_52004.htm

*** 2008 NY Slip Op 31935(U), Supreme Court, New York County, [Not selected for publication in the Official Reports]. The decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2008/2008_31935.pdf

**** The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a “hearing in absentia” and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee’s failure to appear at the hearing as scheduled is, in effect, a concession of guilt.

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Matter of Terry v County of Schoharie, 2018 NY Slip Op 04612, Appellate Division, Third Department

Petitioner in this CPLR Article 78 action alleged that Schoharie County [Schoharie] had abolished her position in violated Civil Service Law §80 as it was done in bad faith and, with respect her federal claims, violated her constitutional rights to due process, equal protection and political affiliation.

Schoharie removed the proceeding to Federal District Court and that court ultimately dismissed all of Plaintiff's federal claims on the merits. The District Court, however, declined to exercise supplemental jurisdiction over Plaintiff's remaining state law claims and remanded them back to Supreme Court. Supreme Court then granted Schoharie's motion for summary judgment dismissed Plaintiff's petition and Plaintiff appealed.

The Appellate Division, indicating that "A public employer may, in the absence of bad faith, collusion or fraud, abolish positions for the purposes of economy or efficiency",  noted that Schoharie had argued that Petitioner's position was abolished as part of a cost-saving measure due to fiscal restraints resulting from flooding caused by Hurricane Irene and was experiencing a loss of population as well as a shrinking tax base and had eliminated positions and restructured several County departments by consolidation or separation of functions. To rebut such proof the Appellate Division said that Petitioner was required to prove "that the abolition of [her] position was brought on by bad faith or in an effort to circumvent the Civil Service Law."

Addressing the issue of Schoharie's alleged bad faith, the Appellate Division said "hat issue was squarely addressed and decided by the District Court in its resolution of Petitioner's federal claims." In dismissing the federal claims, grounded upon the same allegations as those underlying the claimed Civil Service Law violations, the District Court "expressly held that the evidence submitted by [Schoharie] established that Petitioner's position was abolished as a cost-saving measure and that there was no evidence to support Petitioner's "self-serving testimony that [Schoharie] acted in bad faith" or in retaliation for Petitioner's change of political party enrollment.

Noting that the doctrine of collateral estoppel "precludes a party from relitigating an issue which has previously been decided against [him or] her in a proceeding in which [he or] she had a fair opportunity to fully litigate the point," regardless of whether the tribunals or causes of action are the same, the Appellate Division observed that the factual issue of bad faith "was raised, necessarily decided and material in the [District Court], and [Petitioner] had a full and fair opportunity to litigate the issue." Thus, said the court, Petitioner is barred by the principles of collateral estoppel from relitigating that issue in the course of her Article 78 action.

In the absence of bad faith, Schoharie's showing of an economic justification for the elimination of Petitioner's position could only be countered by proof that "no savings were accomplished or that someone was hired to replace [Petitioner]." Petitioner, however, did not dispute that the reorganization of her department and the concomitant elimination of her position, resulted in fiscal savings to the County or that Schoharie did not replace her.

Although Petitioner contended that many of her duties that Petitioner had been assumed by another Senior Planner and that Schoharie violated the prohibition in Civil Service Law §61(2) against assigning civil servants to out-of-title work by assigning supervisory responsibilities to that Senior Planner, the Appellate Division found that such work "either falls within the official duties set forth in the Senior Planner job classification or is a reasonable and logical outgrowth of those duties."

Accordingly, the Appellate Division concluded that Petitioner failed to raise an issue of fact in response to Schoharie's showing that its actions "were part of a good faith effort to reorganize a municipal department for the purposes of reducing costs and increasing efficiency," her petition was properly dismissed by Supreme Court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04612.htm