the policy and implementing procedures of Chapter 752 gave plaintiff an
objectively reasonable expectation that he would be terminated only for
cause and that plaintiff thus had a protected property right in his
2. Whether plaintiff received due process
Plaintiff asserts that defendants failed to follow their own procedures
as established in the Personnel Manual and certain allegedly applicable
statutory provisions, and have thus failed to provide "due process."
Plaintiff argues that defendants, having promulgated rules that govern
how an employee may be discharged, are constitutionally required to
follow them. Plaintiff cites Service v. Dulles, 354 U.S. 363, 77 S.Ct.
1152, 1 L.Ed.2d 1403 (1957) and Vitarelli v. Seaton, 359 U.S. 535, 79
S.Ct. 968, 3 L.Ed.2d 1012 (1959). These cases in turn rely on the
so-called Accardi doctrine (based on United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954)), which
holds, roughly, that an agency "must adhere to voluntarily adopted,
binding policies that limit its discretion." Padula v. Webster,
822 F.2d 97, 100 (D.C.Cir. 1987); Wilkinson v. Legal Services Corp.,
27 F. Supp.2d 32, 47 (D.D.C. 1998). As discussed in Wilkinson, courts
have provided judicial review pursuant to the Accardi doctrine of claims
that an agency has acted in violation of its own binding procedures where
those procedures are promulgated for the protection of individuals, even
where the procedures were not issued as formal regulations.
However, contrary to plaintiffs assertion, a violation under the
Accardi doctrine is not always equivalent to a constitutional violation
of due process. Accardi is based on administrative law principles, not
constitutional due process requirements. See Board of Curators of the
University of Missouri v. Horowitz, 435 U.S. 78, 92 n. 8, 98 S.Ct. 948,
55 L.Ed.2d 124 (1978); Vitarelli v. Seaton, 359 U.S. 535, 546-47, 79
S.Ct. 968, 3 L.Ed.2d 1012 (1959) (J. Frankfurter, concuring) (referring
to Accardi rule as a "judicially evolved rule of administrative law").
Thus, even where a protected employment interest is at stake, an agency
does not violate due process merely because of a failure to follow its
own procedures in the discharge proceeding. Rather, for purposes of
constitutional review, the procedures taken need only satisfy the minimum
required by due process. See Stone v. F.D.I.C., 179 F.3d 1368, 1377
(Fed.Cir. 1999) ("the Due Process Clause only provides the minimum
process to which a public employee is entitled"); see also Goodrich v.
Newport News School Bd., 743 F.2d 225, 227 (4th Cir. 1984) ("When the
minimal due process requirements of notice and hearing have been met, a
claim that an agency's policies or regulations have not been adhered to
does not sustain an action for redress of procedural due process
violations"); Atencio v. Bd. of Educ. of Penasco Independent School
Dist. No. 4,r 658 F.2d 774, 779 & n. 11, 781 (10th Cir. 1981) (holding
that violation by state entity of procedural rights granted in state
statute or regulation; did not necessarily violate constitutional due
process); Bates v. Sponberg, 547 F.2d 325, 329-30 (6th Cir. 1976) ("it is
only when an agency's disregard of its rules results in a procedure which
in itself impinges upon due process rights that a federal court should
intervene in the decisional processes of state institutions" and
distinguishing Accardi as based on "a rule of administrative law");
Edwards v. Bd. of Regents of Northwest Missouri State University,
397 F. Supp. 822, 828 (W.D.Mo. 1975) (holding that the Accardi doctrine
"enforced a rule of administrative law that the government must follow
duly promulgated regulations that have `the force and effect of law. . . ."
It did not, however, hold that the failure to follow those regulations
gives rise to a constitutional claim for the denial of due process.)
(citations omitted). Whether the failure to satisfy such procedures
violates the Accardi doctrine is thus a wholly separate question.
Therefore, after reviewing plaintiffs allegations of procedural "error,
the Court will first consider whether the alleged errors support a
violation of due process and then analyze whether plaintiff has present
sufficient evidence to support a claim under the Accardi doctrine.
3. Plaintiffs Claims of Procedural Error
Plaintiffs allegations of error, essentially, are as follows:
1) Plaintiff alleges that the defendants improperly
relied on Taylor's private log of incidents involving
plaintiff to support the disciplinary action.
Plaintiff also alleges that he was improperly denied
opportunity to suppress the log.
2) Plaintiff alleges that the letter proposing
termination did not give notice that the action would
be based on all the incidents noted in the log.
3) Plaintiff alleges that defendants pursued
termination without obtaining the opinion of the
General Counsel as required by the Personnel Manual.
4) Plaintiff alleges that the communications following
the hearing between Miley and Mulshine were illegal
"ex parte" contacts, and that Mulshine's assertion
that the rule of "common sense" prevails and that
Miley need not follow "rules of evidence and burdens
of proof' applicable to a judicial body was an
erroneous statement of the applicable procedures."
4. Constitutional Due Process Requirements
Constitutionally adequate process must include notice and "some form of
hearing," as the government "may not finally destroy a property interest
without first giving the putative owner an opportunity to present his
claim of entitlement." Logan v. Zimmerman Brush Co., 455 U.S. 422, 434,
102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). With regard to a termination of a
protected interest in employment, due process requires a notice and a
pretermination hearing allowing the employee to challenge the grounds of
the termination. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
542-43, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Ashton, 613 F.2d at 931.
More specifically, "[t]he 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." Id. at 546, 105 S.Ct. 1487.
Plaintiff asserts in his memorandum that the notice was insufficient
because it did not make clear what conduct he was being charged with. The
notice, sent by Smith, stated: "I am proposing to terminate your
employment for: failure to follow instructions; failure to complete
cleaning assignments in a satisfactory manner; failure to perform
assigned duties in a safe and satisfactory manner; and responding in an
argumentative manner when being counseled." Pl.App.M. As evidence, Smith
stated that "Chef Patrick Taylor's log notes for the period July 23, 1996
through November 6, 1996 document incidents occurring on July 23, 30, and
31; August 1, 6, 7, 8, 9, 16, 20, and 22; September 11, 28, and 30;
October 8 and 29; and, November 5 and 6." Pl.App.M. Smith then went on to
detail specific examples selected from these dates for each category of
alleged misconduct. Plaintiff asserts that this was insufficient to warn
him that he would be charged with conduct other than the detailed
This Court disagrees. The language quoted would have apprized a
reasonable person that the defendants were relying on all the incidents
during the period July 23 to November 6, not merely the ones detailed in
the notice, as evidence in support of the four general charges. Further,
the failure to detail all the entries did not deprive plaintiff of notice
of the evidence, since as plaintiff concedes, he had opportunity to view
the log itself between January 23, 1997 when the proposal notice was
provided and July, 1997 when the hearing was held. Indeed, plaintiff was
of this fact in the proposal letter, which stated:
You have the right to review the material on which
your proposed termination is based. You should
telephone Ms. Barbara Willoughby of the Human
Resources Management Division at (202) 226-2549 if you
wish to make an appointment to review the material.
Pl.App.M. The Court therefore finds that plaintiff received
constitutionally adequate notice of the charges and the evidence against
Plaintiff objects to the communications between Miley and Mulshine
after the hearing as illegal "ex parte" contacts. Ex parte communications
that introduce new and material information as to the reasons for the
action or the evidence supporting it violate a person's right to due
process. See Stone v. F.D.I.C., 179 F.3d 1368, 1377 (Fed.Cir. 1999).
Alternatively, information which undermines the objectivity of the
decisionmaker might also constitute a due process violation. Id. Here,
Miley's initial contact with Mulshine would appear to have been nothing
more than an inquiry regarding proper procedure. Any suggestion of other
possible content is purely speculative.
Mulshine's letter in response also passes due process review. In the
letter, Mulshine stated, in substantial part:
This is in reference to the [Vanover] case and the
arguments put forth by his counsel in a submission to
you dated July 15, 1997.
[A]fter the hearing, the role of a hearing officer in
these disciplinary proceedings is straight forward
— to provide a written report to the Architect
that discusses: the merits and the appropriateness of
the charges; findings of fact relevant to the alleged
offense; and a recommendation on the proposed action.
Chapter 752, Appendix C Section .4.2. Thus, a hearing
officer's responsibility is to address whether the
proposed termination is supported by the information
produced at the hearing. The rule of common sense
prevails; rules of evidence and burdens of proof that
must be followed by a judicial body do not restrict
the hearing officer's conduct.
The process therefore does not call upon you to decide
the legal issues of the sort that Mr. Vanover's
counsel raises in his submission to you. They are for
a court or other body of competent jurisdiction to
decide, if there is a basis for a statutory or other
legal claims against the Office of the Architect and
if there is a forum "with the requisite jurisdiction."
Pl.App.O. The letter contained no new information as to the nature of the
charges or the evidence, but rather dealt with interpretations of the
governing procedures. No case law suggests that due process requires a
forum to allow every procedural question to be debated. Further, there is
nothing in Mulshine's letter that suggests that Miley's objectivity would
be undermined. Rather, the letter reiterates that the hearing officer has
a duty to determine the appropriateness of the charges.