Sleeping On Your Rights

By on June 9, 2005 in Current Events with 0 Comments

Litigation of appeals from federal employees can take a long time. Is it possible to have a case that takes so long it gets thrown out?

Here is one case that was thrown out because it was not pursued fast enough.

Anibal Cruz-Martinez was an employee of the Immigration & Naturalization Service when he was fired by the agency (which subsequently became part of the Department of Homeland Security). He was fired based on several charges including conduct unbecoming an officer, improper release of sensitive information and improperly admitting aliens.

He appealed his removal and in April 2001 the union representing Cruz-Martinez notified the agency it was invoking arbitration of the issue. In May the agency responded to the union that it wanted to schedule the arbitration hearing.

The union never responded to the agency’s request to schedule the hearing and, in May 2002, the agency told the union it was closing the case. The rationale for the closing was that the union was the moving party and the past practice had been not to pursue a case that had not been acted on in over one year.

In August 2003, the union finally responded to the agency’s letter and then demanded that the agency go to arbitration over what was now a very old case. The agency agreed to go to arbitration, but argued that the case could no longer be litigated since it was old and no action had been taken by the union for a long time.

The arbitrator upheld the agency’s position. He found that a policy of closing out cases that were not pursued for over a year had been in place for over 17 years and that between 25 and 30 cases had been dismissed this way each year.

The union contended that the past practice cited by the agency had been contested by the union so it was not a legitimate argument. In support of its argument, it noted that it had filed unfair labor practices against the agency for this same policy.

Ironically though, the Federal Labor Relations Authority (which decides unfair labor practice cases) dismissed the union’s charges in those cases as the union filed its allegations too late to meet the FLRA’s timeliness requirements.

The case then went to the Court of Appeals for the Federal Circuit. Cruz-Martinez argued that his case should have been litigated by the arbitrator. He contended he had a constitutional right to a hearing on the merits of his case as the agency took his property (i.e., his job) without due process. He also argued that the agency witness was "false and misleading" and that the evidence did not support a conclusion that a past practice of closing cases actually existed at his work location.

The court found that the use of time limits does not violate the Constitution which would be the logical conclusion of the argument advanced by Cruz-Martinez. The court also found the arbitrator was reasonable in finding that a practice that existed in the agency’s Eastern Region was applicable to Cruz-Martinez since he was also in the agency’s Eastern Region.

In effect, the court agreed with the agency’s position that the union had "slept on its rights" to proceed to arbitration and the past practice of closing cases after no action was taken for a year had been accepted by both parties.

The final result: The agency’s removal of Cruz-Martinez is upheld–about five years after the action was taken.

Cruz-Martinez v. Department of Homeland Security, 04-3271 (June 5, 2005)

© 2016 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.


About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters onĀ federal human resources.