Is It Too Easy to Go To Court?

A federal employee contends he was fired for many invalid reasons but he is now out of a job anyway.

One of the things we learned from a recent “non-precedential” decision by the Federal Circuit Court of Appeals is that there is an Eloy Immigration Court in Eloy, Arizona, which is part of the Department of Justice.

In Schoenrogge v. Department of Justice (U.S.C.A. for Federal Circuit, No. 05-3135, September 13, 2005), the court backs the MSPB’s decision upholding the firing of a legal assistant at the Eloy Immigration Court.

This is one of those cases where you find yourself wondering if it’s just too easy for people to go to court in this country. The DoJ leveled three charges against Mr. Schoenrogge (“Mr. S”). In simply looking at the first of those charges for disorderly conduct, one pretty much gets the flavor of this case: Mr. S. appeared without an invitation at the house of his second-level supervisor and “attempted to provoke a physical altercation with him.”

He was arrested and pled guilty to disorderly conduct. When charged with disorderly conduct in support of the removal action, Mr. S. acknowledged that the incident occurred, but challenged the testimony of the victim and his wife that Mr. S. appeared to be intoxicated at the time of the incident. Notwithstanding, the AJ found the witnesses testimony to be credible and the court deemed this finding to be “reasoned” and “fully supported by the record.” (Opinion p. 3)

Similarly, the court found the AJ’s upholding of the other two charges against Mr. S. to be supported by the record and, further, that the penalty of removal was not excessive or an abuse of discretion. (p. 8)

Neither the AJ nor the court bought Mr. S.’ argument that his removal was illegal reprisal for (1) filing discrimination complaints and (2) engaging in protected whistleblowing. The AJ dismissed the alleged whistleblowing as “unprotected” disclosures, finding that they concerned “trivial matters.” (p. 6) The court agreed. (pp. 6-7) As for the reprisal for filing discrimination complaints, the court holds that Mr. S. failed to bear his burden of showing a causal connection between his filing of several discrimination complaints and the removal action. (p. 5) Finally, the former employee argued to the court that the AJ committed error when he would not permit Mr. S. to call some thirty-three witnesses at his administrative hearing, instead holding him to seven witnesses. The court found the AJ’s actions to limit the hearing reasonable.

With this decision, the employee, Mr. Schoenrogge is almost at the end of the proverbial legal road. He could try to get the full panel of Circuit Court judges to consider his appeal or he could try to convince the Supreme Court of the United States to grant review. Neither would seem to be likely.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.