Kropat v. Federal Aviation Administration

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 16, 1998 Decided December 15, 1998

No. 98-1186

Loren Kropat,

Petitioner

v.

Federal Aviation Administration and

U.S. Department of Transportation,

Respondents

On Petition for Review of an Order of the
Federal Aviation Administration

William L. Bransford argued the cause and filed the briefs
for petitioner.

Daniel Kaplan, Attorney, U.S. Department of Justice, ar-
gued the cause for respondents. With him on the brief were
Frank W. Hunger, Assistant Attorney General, Wilma A.
Lewis, U.S. Attorney, and Alfred R. Mollin, Attorney, U.S.
Department of Justice.

Before: Edwards, Chief Judge, Silberman and Tatel,
Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge: The Federal Aviation Administra-
tion ("FAA") suspended petitioner Loren Kropat for thirty
days without pay for disruptive and abusive conduct on the
job. Kropat protested this disciplinary action and his com-
plaint culminated in an arbitration hearing. The arbitration
panel dismissed one of the charges against Kropat and re-
duced his suspension from thirty to ten days.

Although Kropat was afforded substantial rights to pre-
hearing discovery (e.g., a statement of the charges against
him, access to materials related to his case, a right to
representation, witness lists, and witness statements), he
claims that he was denied procedural due process because the
FAA's Personnel Management System ("System") states that
"[t]here will be no discovery for either side." Kropat does
not contend that he was completely denied discovery; rather,
he claims that he was improperly denied a right to interview
or depose adverse witnesses prior to the hearing. Because
Kropat cannot demonstrate how his inability to depose the
FAA's witnesses amounted to a due process violation, particu-
larly in light of the myriad other procedural protections
afforded him, we reject his due process claim.

Kropat also claims that the asserted lack of discovery
violated his right to equal protection. This claim rests on the
fact that employees who are covered by collective bargaining
agreements are afforded different, and allegedly greater,
procedural protections than persons like Kropat, who are not
covered by any collective bargaining agreement. We reject
this claim as well, for there is obviously a rational basis for
providing unionized employees with the protections guaran-
teed by their collective bargaining agreements. Kropat had
the protections of the FAA's Personnel Management System,
which fully satisfies the requirements of procedural due pro-
cess; he was entitled to nothing more.

I. Background

A.The FAA Personnel Management System

FAA personnel disciplinary actions were formerly governed
by the provisions of Title 5 of the U.S. Code. In 1995,
however, Congress directed the FAA to develop and imple-
ment a new personnel management system that would sup-
plant the provisions of Title 5. See Department of Transpor-
tation and Related Agencies Appropriations Act, 1996, Pub.
L. No. 104-50, s 347, 109 Stat. 436, 460 (1995). The FAA
responded to this charge by creating the FAA Personnel
Management System. Chapter III of the System governs the
FAA's disciplinary procedures, which apply to all FAA em-
ployees who are not otherwise protected by a collective
bargaining agreement. See Joint Appendix ("J.A.") A14-A27.

Under the System, "[s]upervisors are responsible for deter-
mining if corrective disciplinary action is warranted." Id. at
A16. An employee must be notified at least 15 days in
advance of any proposed suspension, and, in particular, must
be informed of (i) "the specific reason(s) for the proposed
action in sufficient detail for the employee to make a reply";
(ii) the right to make an oral or written reply within 15 days;
(iii) the right to representation during the reply period; and
(iv) the right to "review all of the material relied upon to
support the proposed action and copies unless otherwise
prohibited by law." Id. at A17-A18. In presenting a reply,
the employee may "furnish affidavits and other documenta-
tion ... [and] will be given up to 16 hours of excused absence
to review the material relied upon and to prepare any reply to
a proposed suspension." Id. at A19. After receiving the
employee's reply (or, if no reply is made, within twenty-five
days of the original notification), the deciding official must
issue a final decision. See id. at A18. The final decision must
contain, inter alia, "a statement of which charge(s) and/or
reason(s) were sustained and which were not," as well as
notification of the employee's right to appeal any suspension
of more than fourteen days. Id. at A19-A20.

A suspended employee may then invoke the System's ap-
peals procedure, entitled "Guaranteed Fair Treatment," by
submitting a written appeal to the "next level above the
deciding official" within ten days of receiving the final deci-
sion. Id. at A24. Once an appeal has been filed, the FAA
must designate an appellate panel, comprised of a "partisan"
for each side and an arbitrator. See id. The System pro-
vides that "[t]here will be no discovery for either side but the
parties shall exchange documents and witness lists ten days
before the hearing." Id. at A25. The parties may be repre-
sented at the hearing, and are responsible for securing their
own witnesses. See id.

The panel must issue a written decision. See id. The
panel has the authority to mitigate the penalty in a case
involving the employee's conduct, and may award back pay.
See id. at A25-A26. Decisions of the panel are issued as final
orders of the FAA Administrator, and are reviewable in this
court, or in the U.S. Court of Appeals for the circuit in which
the employee resides. See id. at A26.

B.Factual History

Prior to 1996, Loren Kropat had worked at the FAA in
various capacities for eighteen years without incident. Dur-
ing the summer and fall of 1996, however, he engaged in
disruptive and threatening conduct on the job, for which he
received a three-day suspension. See id. at A59-A62.

In February 1997, Kropat was allegedly involved in several
more disruptive incidents. On March 17, 1997, his supervisor,
Janis Hooten, sent him a notice proposing that he be sus-
pended for thirty days and advising him of his right to make
a written or oral reply. See id. at A64-A67. The notice
provided a detailed explanation of three specific charges of
"disruptive," "threatening," and "abusive" behavior, each of
which related to a separate incident. Id. at A64. The notice
was accompanied by nine documents, including the written
statements of his co-workers, attesting to his improper behav-
ior. See id. at A68-A79. On March 28, 1997, Kropat re-
sponded by letter to the deciding official, Robert Cook,
claiming that the proposed suspension notice "includes false,

unsubstantiated and insupportable allegations." Id. at A80.
On May 1, 1997, Cook issued a final decision, which explained
that he had conducted an independent investigation and con-
cluded that the thirty day suspension was warranted. See id.
at A81-A85. The final decision apprised Kropat of his right
to appeal via the "Guaranteed Fair Treatment" appeals pro-
cedure. See id. at A82. Kropat was suspended from May 5
to June 18, 1997. See id. at A86-A87.

On May 9, 1997, Kropat filed an appeal of the final decision,
in which he again denied the charges. See id. at A88-A94.
The parties exchanged witness lists in mid-July, see id. at
A97-A104, and on July 28, the FAA's representative, Michael
Herlihy, offered to meet with Kropat to "define the issues and
discuss witnesses, documents, and any procedural matters,"
id. at A103. Kropat never responded to this offer. Kropat
did attempt to interview several of the FAA's witnesses prior
to the hearing. His attempts were futile, in part because
Kropat had been barred from entering FAA premises pend-
ing his appeal, see id. at A63, and Herlihy apparently had
advised the witnesses not to speak with Kropat unless Her-
lihy was present, see id. at A97, A161. However, there is
nothing in the record to indicate that Kropat was precluded
from talking with witnesses off of FAA premises.

A hearing before the appellate panel was held on July 30,
October 27, 28, and 30, 1997. Kropat was represented by
counsel on the first day of the hearing, but appeared pro se
for the remainder. Each side presented witnesses, cross-
examined opposing witnesses, and introduced exhibits into
evidence. See, e.g., id. at A105-A201. At several points
during the hearing, Kropat objected that his due process
rights had been violated by his inability to interview the
FAA's witnesses prior to the hearing. See, e.g., id. at A183-
A191. However, the neutral arbitrator gave him substantial
leeway in his cross-examination of these witnesses, and at-
tempted several times to elicit from Kropat precisely how he
was prejudiced by his inability to interview or depose the
witnesses. See id. Kropat was unable to articulate what
prejudice, if any, he had suffered. At the conclusion of the

hearing, each side submitted a final brief in lieu of closing
argument. See id. at A202-A279.

On February 9, 1998, the panel issued an Opinion and
Award. See Kropat v. FAA, American Arbitration Associa-
tion Case No. 164870006897 (Feb. 9, 1998), reprinted in J.A.
A280. The panel discussed the evidence pertaining to each
charge, ultimately upholding the first and third charge, but
dismissing the second charge. In dismissing the second
charge, the panel declined to credit the FAA's key witness
with respect to that charge. See id. at A294. With respect
to the penalty imposed, the panel reduced the suspension
from thirty to ten days, and directed the FAA to "make ...
[Kropat] whole, for the action it has taken against him in
excess of ten days." Id. at A300. The FAA's partisan on the
panel dissented from the panel's opinion. See id. This
appeal followed.

II. Analysis

A.Due Process

Kropat claims that the System's appeals procedure fails to
provide employees in his position with the requisite due
process. His general contention is that, because the System
states that "[t]here will be no discovery for either side," id. at
A25, suspended employees are unable to effectively respond
to the charges against them.

Respondents concede that Kropat had a property interest
in his job, and that his suspension constituted a deprivation of
that interest, thereby triggering his right to due process
under the Fifth Amendment. See Brief for the Respondents
at 22. The narrow issue on appeal, then, is whether Kropat
received the process he was due. See Morrissey v. Brewer,
408 U.S. 471, 481 (1972). We hold that he did.

First, as a matter of constitutional law, Kropat is simply
wrong in suggesting that "formal," pre-hearing discovery, of
the sort that might be available under the Federal Rules of
Civil Procedure, must be provided to satisfy procedural due
process in connection with a post-suspension arbitration pro-

ceeding. "Though the required procedures may vary accord-
ing to the interests at stake in a particular context," Brock v.
Roadway Express, Inc., 481 U.S. 252, 261 (1987), "[t]he
fundamental requirement of due process is the opportunity to
be heard 'at a meaningful time and in a meaningful manner.' "
Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Arm-
strong v. Manzo, 380 U.S. 545, 552 (1965)). There is no case
law to support the proposition advanced by Kropat.

To the contrary, this court has made clear that the Fifth
Amendment "only requires that a person receive his 'due'
process, not every procedural device that he may claim or
desire." Johnson v. United States, 628 F.2d 187, 194 (D.C.
Cir. 1980). In order to determine whether due process is
satisfied in a particular case, we employ the familiar Mathews
test, in which we balance "the nature of the benefit or status
of which the individual is being deprived; the need for the
government to act efficiently and expeditiously in terminating
this type of benefit or status; and the extent to which the
decisionmaking process would be aided by the presence of the
procedural safeguard that the individual seeks." Id. (citing
Mathews, 424 U.S. at 334-35). Here, because both Kropat
and the FAA have important interests at stake, our analysis
focuses on the last of the three Mathews factors--the proba-
ble value, in terms of accuracy and efficiency, of requiring the
pre-hearing discovery that Kropat seeks.

As a factual matter, Kropat has utterly failed to explain
how he was prejudiced by the System's lack of formal discov-
ery, or how such discovery would contribute to the accuracy
or efficiency of the adjudication. His only discernible claim of
"prejudice" is that he had to take " 'calculated risks' during
the cross-examination of agency witnesses for fear of unantic-
ipated testimony." Reply Brief for Petitioner at 16. This
claim is unfounded, however, since it is undisputed that he
was provided with each witness's statement prior to the
hearing, and he was unable to explain to the arbitrator or to
this court how he might have benefitted from a pre-hearing
deposition or interview. See Watts v. Office of Personnel
Management, 814 F.2d 1576, 1581 (Fed. Cir. 1987) (rejecting
a due process challenge to a limitation on discovery where

employee "failed to assert what he might have learned from
additional discovery").

The cases upon which Kropat relies, Gilmer v. Inter-
state/Johnson Lane Corp., 500 U.S. 20 (1991), and Cole v.
Burns Int'l Sec. Servs., 105 F.3d 1465 (D.C. Cir. 1997), are
also unavailing. For one thing, Kropat acknowledges that
Gilmer and Cole both "dealt with the question of whether
specific statutory rights could, by way of private agreements,
be subjected to compulsory arbitration." Reply Brief for
Petitioner at 18 (emphasis added). Thus, because this case
involves very different issues, the principles articulated in
Gilmer and Cole obviously are not directly relevant here.
Moreover, those cases do not even hold that due process
requires formal discovery prior to an arbitration hearing.
Rather, each observed that because the procedures at issue
did provide for some discovery, the agreements to arbitrate
were more likely to be fair. See Gilmer, 500 U.S. at 31; Cole,
105 F.3d at 1482. Such an observation, even if it were
relevant in the present context, is a far cry from finding that
the due process clause requires full, formal discovery in this
case.

Not only is there no case law to support Kropat's claim that
due process requires formal discovery, but the System in fact
provides for a great deal of pre-hearing discovery. In Kro-
pat's case, the parties exchanged documents and witness lists
at least ten days prior to the hearing. Kropat was also
furnished with the written statements of every witness who
testified against him. Thus, he knew, prior to the hearing,
essentially what each witness was going to say on the stand.
Furthermore, in accordance with the System's requirements,
Kropat's hearing was in front of a neutral arbitrator; and he
had the right to be represented by counsel, the right of cross-
examination, and the right to present evidence and witnesses
on his own behalf. Kropat took full advantage of these
rights. He makes no claim that the arbitrator was partial or
otherwise unfair; to the contrary, the arbitrator went out of
his way to ensure that the testimony against Kropat was
relevant and not prejudicial. See, e.g., J.A. A138. The
arbitrator also gave Kropat substantial leeway in his lengthy

cross-examinations, see, e.g., id. at A142-A170, and it is clear
that the panel--which dismissed one of the charges--thor-
oughly considered the information elicited during these exam-
inations, see, e.g., id. at A281, A293-A294.

Kropat responds that, although he was afforded these
procedural protections, as a constitutional matter, he had the
right to depose or interview the FAA's witnesses prior to the
hearing. Again, however, there is simply no case law to
support this claim. Moreover, in many cases, pre-hearing
depositions would not even be desirable, because they are
expensive, time-consuming, and do not necessarily contribute
to the accuracy of the arbitrator's ultimate determination.
See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34-35 (1984)
("It is clear from experience that pretrial discovery by deposi-
tions and interrogatories has a significant potential for abuse.
This abuse is not limited to matters of delay and expense;
discovery also may seriously implicate privacy interests of
litigants and third parties.") (footnote omitted).

We have no doubt that Kropat received at least as much
process as he was due. Cf. Brock, 481 U.S. at 266 ("Providing
the [petitioner] the relevant supporting evidence and a chance
to meet informally with the investigator, to submit statements
from witnesses and to argue its position orally, satisfies the
constitutional requirement of due process for ... temporary
deprivation" of a protected interest, even without the provi-
sion of a full evidentiary hearing.); Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 545 (1985) (holding that pretermin-
ation hearing, "though necessary, need not be elaborate").
Accordingly, we reject his due process challenge to the Sys-
tem.

B.Equal Protection

Kropat, who is not covered by a collective bargaining
agreement, also makes the novel, but meritless, claim that the
equal protection component of the Fifth Amendment's due
process clause entitles him to the same procedural protections
enjoyed by FAA employees who are protected by collective
bargaining agreements.

Kropat concedes that the appropriate standard of scrutiny
is rational basis review. See Brief for Petitioner at 30-31;
FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993)
("[A] classification that neither proceeds along suspect lines
nor infringes fundamental constitutional rights must be up-
held against equal protection challenge if there is any reason-
ably conceivable state of facts that could provide a rational
basis for the classification."). Thus, Kropat must establish
that there is no rational basis for the FAA's policy of provid-
ing employees in bargaining units with the procedural protec-
tions guaranteed by their collective bargaining agreements,
while not providing the same protections for employees who
are not covered by collective bargaining agreements. See
Schweiker v. Wilson, 450 U.S. 221, 235 (1981) (classification
withstands rational basis review if it "rationally advances a
reasonable and identifiable governmental objective"). The
eminently rational basis for this different treatment, however,
is that employees who have not elected or are not afforded
collective bargaining, and, thus, are not covered by collective
bargaining agreements, obviously do not enjoy the benefits
nor experience the burdens of such agreements.

Employees who are not in collective bargaining units are
entitled to procedural protections sufficient to satisfy Math-
ews and its progeny. As discussed above, the procedural
protections afforded Kropat in this case pass constitutional
muster. Kropat wisely does not claim that he has a constitu-
tional right to be included in a collective bargaining unit;
thus, it follows that his employment benefits are not defined
by reference to any collective bargaining agreement. The
Constitution plainly does not require the FAA to afford
employees like Kropat the same protections afforded employ-
ees who are covered by collective bargaining agreements.
Therefore, Kropat's equal protection claim must fail.

III. Conclusion

For the reasons stated above, we affirm the final order of
the FAA.

So ordered.