Opinion

Jeremy Capulong v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Jun 22, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 41.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JEREMY CAPULONG, DOCKET NUMBER

Appellant, SF-0752-24-0591-I-1

DEPARTMENT OF HOMELAND DATE: June 22, 2026

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Edward Blum , Esquire, and Wilbert David Sonnier , Los Angeles,

California, for the appellant.

Monique Louise Rutter , Esquire, San Francisco, California, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed the agency’s indefinite suspension of him. On petition for review, the

appellant alleges that the administrative judge erred by determining that the

agency did not violate his due process rights, abused his discretion, and erred by

not reversing the agency’s action. Generally, we grant petitions such as this one

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

only in the following circumstances: the initial decision contains erroneous

findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

The appellant alleges that the administrative judge erred by not finding that

the deciding official’s consideration of Human Capital Advisory Memo 2022.75-3

(HCAM 2022.75-3) violated his due process rights because the agency did not

disclose its use of the document to him before issuing the notice of decision on

proposed indefinite suspension. Petition for Review (PFR) File, Tab 1 at 11-17.

The administrative judge concluded that HCAM 2022.75-3 constituted new

ex parte information but determined that it was not material. Initial Appeal File

(IAF), Tab 18, Initial Decision (ID) at 14.

HCAM 2022.75-3 amended Section I(1)(c) of the Handbook to

Transportation Security Administration (TSA) Management Directive (MD)

1100.75-3, Addressing Unacceptable Performance and Conduct, by replacing

language stating that indefinite suspensions may be imposed on an employee

when the agency conducts an investigation into serious allegations against the

employee. IAF, Tab 8 at 61, 92. The new language states that indefinite

suspension may be imposed when an “[e]mployee has been arrested, and there is

reasonable cause to believe that the employee committed a crime for which a

sentence of imprisonment could be imposed.” Id. at 61.

The deciding official admitted to considering HCAM 2022.75-3 prior to

issuing the notice of decision on proposed indefinite suspension to the appellant.

IAF, Tab 16 at 35. The notice of proposed indefinite suspension does not list

HCAM 2022.75-3 among the information it relied upon in drafting the proposal,

and the administrative judge found that there is no record evidence demonstrating

that the agency notified the appellant that the deciding official would consider it.

IAF, Tab 8 at 49; ID at 14. As a result, the administrative judge concluded that

HCAM 2022.75-3 constituted new ex parte information. ID at 14.

“Although not every ex parte communication is impermissible, ‘ex parte

communications that introduce new and material information to the deciding

official will violate the due process guarantee of notice.’” Johnson v. Department

of the Air Force, 50 F.4th 110, 115 (Fed. Cir. 2022) (quoting Stone v. Federal

Deposit Insurance Corp., 179 F.3d 1368, 1377 (Fed. Cir. 1999)). In Stone, the

U.S. Court of Appeals for the Federal Circuit identified the following

non-exclusive factors to be used to determine if ex parte information is new and

material: (1) whether the ex parte information introduced cumulative, as opposed

to new, information; (2) whether the employee knew of the information and had

an opportunity to respond; and (3) whether the communication was “of the type

likely to result in undue pressure on the deciding official to rule in a particular

manner.” Stone, 179 F.3d at 1377. The administrative judge concluded that the

ex parte information in HCAM 2022.75-3 was not material. ID at 14. He found

that it had no relevance to the action at issue because neither the original

language in TSA MD 1100.75-3, Section I(1)(c), nor the modified language from

HCAM 2022.75-3 applied to the suspension imposed on the appellant. Id.

The appellant challenges the administrative judge’s determination that the

deciding official’s consideration of HCAM 2022.75-3 did not introduce material

information. PFR File, Tab 1 at 14-17. First, he argues that the materiality of the

ex parte information is self-evident. Id. at 14, 16. He maintains that the

materiality becomes self-evident when “the deciding official . . . admits that she

considered the information in reaching the decision on the discipline.” Id. at 14

(citing Silberman v. Department of Labor, 116 M.S.P.R. 501, ¶ 12 (2011);

Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 12 (2011); Gray v.

Department of Defense, 116 M.S.P.R. 461, ¶ 11 (2011)).

In Lopes, the Board considered the third Stone factor regarding undue

pressure. 116 M.S.P.R. 470, ¶ 12. The Board stated that when a “[d]eciding

[o]fficial admits that the ex parte communications influenced his penalty

determination,” the “materiality of the ex parte communication . . . [is]

self-evident from the [d]eciding [o]fficial’s admission.” Id. (quoting Ward v.

U.S. Postal Service, 634 F.3d 1274, 1280 n.2 (Fed. Cir. 2011)). The Board

repeated the same point in Gray. 116 M.S.P.R. 461, ¶ 11 (stating that “the lack of

such undue pressure may be less relevant to determining when the ex parte

communications deprived the employee of due process where . . . the [d]eciding

[o]fficial admits that the ex parte communications influenced his penalty

determination”) (quoting Ward, 634 F.3d at 1280 n.2). The Board stated likewise

in Silberman that ex parte communication is plainly material when the deciding

official has admitted that the information influenced his penalty determination.

116 M.S.P.R. 501, ¶ 12.

In each of these cases, the materiality of the introduction of ex parte

information depended upon the deciding official being influenced by it. The

appellant’s assertion that the materiality of ex parte information is self-evident

when a deciding official considers it does not correctly state this standard.

Indeed, to hold that consideration of ex parte information is sufficient to make it

material would render superfluous the materiality requirement.

Second, the appellant asserts “plain error” to the extent that the

administrative judge found that HCAM 2022.75-3 was “not a significant factor”

in the deciding official’s decision and therefore was not material. PFR File,

Tab 1 at 15 (citing Solis v. Department of Justice, 117 M.S.P.R. 458, ¶¶ 9-10

(2012); Pickett v. Department of Agriculture, 116 M.S.P.R. 439, ¶ 12 (2011)).

The appellant does not accurately describe the administrative judge’s reasoning

because the administrative judge did not state that HCAM 2022.75-3 was not a

significant factor in the deciding official’s determination. Rather, he stated that it

had “no relevance,” and therefore was not material, because the circumstances

addressed by the memorandum did not apply to the appellant. ID at 14.

The cases cited by the appellant also support the administrative judge’s

determination of lack of materiality. In Solis, the Board held that an agency’s

decision not to provide the appellant with notice regarding his Giglio 2 issues but

then listing the appellant’s Giglio issues as an aggravating Douglas 3 factor in his

removal was material. 117 M.S.P.R. 458, ¶¶ 9-10. In Pickett, the Board

determined that the deciding official’s consideration of a rumor in a newspaper

article that the appellant held his wife at gunpoint was material because it

influenced his decision, despite his claim that it only played a “minor role.”

116 M.S.P.R. 439, ¶ 12. Like the examples above, the ex parte information in

Solis and Picket was not only considered by the deciding officials but also

affected their decisions. The appellant has presented no information that the

ex parte information in this case affected the decision on his proposed indefinite

suspension.

In Giglio v. United States, 405 U.S. 150, 154 (1972), the U.S. Supreme Court held that

the government must disclose evidence affecting the credibility of Government

witnesses. Subsequent case law has extended this rule to require Government agencies

to review the personnel files of Government witnesses and disclose material that could

cast doubt on their credibility or potential for bias. See United States v. Henthorn,

931 F.2d 29, 30-31 (9th Cir. 1991).

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).

NOTICE OF APPEAL RIGHTS 4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 5 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following