The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WADE T. COX, DOCKET NUMBER
Appellant, SF-0752-22-0180-I-1
v.
DEPARTMENT OF THE NAVY, DATE: August 23, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeff Letts, Esquire, Ruther Glen, Virginia, for the appellant.
Mona C. Williams, Esquire, Silverdale, Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. For the reasons discussed below, we GRANT the
appellant’s petition for review and REVERSE the initial decision. We DO NOT
SUSTAIN the appellant’s removal.
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
BACKGROUND
¶2 The appellant most recently held the position of Supervisory Logistics
Management Specialist, a GS-13 position in Silverdale, Washington. Initial
Appeal File (IAF), Tab 6 at 15, 71. The appellant’s supervisor proposed his
removal based on one charge of conduct unbecoming of a supervisor concerning a
verbal altercation in October 2021, during which he raised his voice and cursed at
his colleague—another supervisor. Id. at 29-31. In explaining the reasons for her
recommended penalty, the proposing official referenced the appellant’s history of
similar disrespectful outbursts for which he was not formally disciplined and
attached what she labeled as “Historical Emails and statements documenting like
or similar behavior.” Id. at 29-32, 44-65. The appellant replied to the proposal
notice and provided written statements from witnesses to the alleged October
2021 misconduct. Id. at 18-28. The deciding official issued a decision letter
removing the appellant from his position in January 2022. Id. at 15-17.
¶3 The appellant filed this appeal arguing that the charge was untrue, he was
denied due process, and the penalty was unreasonable. IAF, Tab 1 at 4, Tab 11
at 1-11. Following a hearing, the administrative judge issued an initial decision
sustaining the removal. IAF, Tab 17, Initial Decision (ID).
¶4 The appellant has filed a timely petition for review, Petition for Review
(PFR) File, Tab 1, and the agency has responded in opposition, PFR File Tab 3.
The appellant replied to the agency’s response. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 In his petition for review, the appellant challenges the administrative
judge’s findings that the agency proved its charge and that the penalty of removal
was reasonable. PFR File, Tab 1 at 4-13, 18-22. He also reasserts that the
agency committed a due process violation. Id. at 13-17; IAF, Tab 11 at 8. As
discussed below, we find that the agency violated the appellant’s due process
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rights. Because we reverse his removal on due process grounds, we decline to
address his arguments concerning the charge and penalty.
¶6 The essential requirements of procedural due process are prior notice of the
charges against the employee and a meaningful opportunity to respond to those
charges. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985);
see 5 U.S.C. § 7513(b). The appellant’s main point on review is that the agency
did not provide him adequate notice of past instances of similar misconduct relied
upon by the deciding official in his decision on the penalty. PFR File, Tab 1
at 13-17. He presents two distinct allegations that he was denied due process . Id.
¶7 The appellant’s first allegation pertains to the past instances of misconduct
considered by the deciding official that were documented in emails attached to
the proposed removal. PFR File, Tab 1 at 14; IAF, Tab 6 at 44-65. The appellant
argues that these emails did not provide him with a legitimate opportunity to
contest the accuracy of the allegations contained in the emails and that due
process requires the specific allegations of the past misconduct to be in the body
of the notice of proposed removal. PFR File, Tab 1 at 14. We disagree. In
Alvarado v. Department of the Air Force, 97 M.S.P.R. 389, ¶ 15 (2004), we
explained that a notice of proposed adverse action need not be a self -contained
document; the notice requirement is satisfied when the proposal and any
attachments to it, taken together, provide the employee with specific notice of the
charges against him so that he can make an informed and meaningful reply. Here,
the proposed removal referred to a history of similar disrespectful outbursts and
that the appellant had been “engaging in this type of misconduct for years .” IAF,
Tab 6 at 32. The proposed removal specifically cited “Historical Emails and
statements documenting like or similar behavior” as materials relied upon and
attached those emails. Id. at 29, 44-65. Thus, the appellant had notice and an
opportunity to respond to the allegations of past misconduct that were contained
in the proposal packet.
4
¶8 The appellant’s second allegation is that the deciding official erred by
considering two other past instances of misconduct that were not specified
anywhere in the proposal packet, and the administrative judge erred in finding
otherwise. PFR File, Tab 1 at 13-17; ID at 16. We agree. The deciding official
described the appellant’s past work record as including eight examples of
unprofessional and disrespectful conduct. IAF, Tab 10 at 6, Tab 12 at 16. At the
hearing, he testified that two out of the eight were based on his own experience
with the appellant and were not included in the proposal notice or otherwise
provided to the appellant during the removal process. 2 Hearing Transcript (HT)
at 118-20, 147-49 (testimony of the deciding official).
¶9 Pursuant to the decisions of the U.S. Court of Appeals for the Federal
Circuit in Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011),
and Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77
(Fed. Cir. 1999), a deciding official violates an employee’s due process rights
when he relies upon new and material ex parte information as a basis for his
decision on the merits of a proposed charge or the penalty to be imposed.
2
The two examples appear to be the following:
Unprofessional behavior toward me during a meeting to deliver my
decision on your administrative grievance regarding you[r] Letter of
Reprimand on 2/14/19. During this meeting I counseled you very
specifically on how your behavior was unacceptable and my expectations
that you improve. I provided this to you in writing.
Unprofessional behavior toward me during a conversation about the
Extended Refit Period 2 Technical Foundation Paper on 5/14/20. The
conversation devolved into an incoherent rant from you about unrelated
topics including hiring practices, your disagreement with organizational
changes, alleged favoritism, and your feelings of persecution. I
repeatedly had to ask you to stop interrupting me, pointed out that your
behavior was the same behavior you exhibited during our meeting on
2/14/19, and ended the discussion with direction to you to put your
allegations in writing and submit them to me, or call the TRF or NAVSEA
hotlines if you felt I was untrustworthy. You did neither.
IAF, Tab 10 at 6, Tab 12 at 16.
5
Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 23. When determining whether a
due process violation has occurred, there is no basis for distinguishing betwee n ex
parte information provided to the deciding official and information personally
known by the deciding official if the information was considered in reaching the
decision and not previously disclosed to the appellant. Id. Thus, we consider
whether these two instances of past misconduct constitute new and material ex
parte information.
¶10 In Stone, the Federal Circuit identified the following 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 pressur e
on the deciding official to rule in a particular manner.” Stone, 179 F.3d at 1377.
Ultimately, we must determine “whether the ex parte communication is so
substantial and so likely to cause prejudice that no employee can fairly be
required to be subjected to a deprivation of property under such circumstances.”
Id.
¶11 Regarding the first Stone factor, the Board has held that additional, specific
instances of rude and disrespectful behavior, although similar in nature to the
charged misconduct, cannot be considered merely cumulative. See Silberman v.
Department of Labor, 116 M.S.P.R. 501, ¶ 12 (2011). The two examples noted
by the deciding official involved specific conversations he had with the appellant
on specific dates during which the appellant exhibited unprofessional behavior.
IAF, Tab 10 at 6, Tab 12 at 16. This information was new and not merely
cumulative. Regarding the second Stone factor, the deciding official testified that
the appellant was not given notice or an opportunity to respond to these two
instances during the disciplinary process, and there is no indication in the record
to the contrary. HT at 147-49 (testimony of the deciding official).
6
¶12 Regarding the third Stone factor, we found no evidence that the information
about these past instances of misconduct—personally known to the deciding
official—resulted in undue pressure on him to remove the appellant.
Nonetheless, the undue pressure factor is only one of several enumerated factor s
and is not the ultimate inquiry in the Stone analysis. Silberman, 116 M.S.P.R.
501, ¶ 13 (citing Ward, 634 F.3d at 1280 n.2). The Board has found that
information is plainly material when the deciding official admitted that the
information influenced his penalty determination. Compare Lopes v. Department
of the Navy, 116 M.S.P.R. 470, ¶¶ 12-13 (2011) (finding that ex parte information
about past misconduct was material, even if it may not have resulted in undue
pressure on the deciding official, as evidenced by the deciding official’s
statements about the past misconduct and his penalty determination), with
Dieter v. Department of Veterans Affairs, 2022 MSPB 32, ¶¶ 15-18 (finding that a
deciding official’s belief that an employee had been disruptive in the past did not
rise to the level of a due process violation because she did not testify that she
considered any “disruptions” that were not referenced in the proposal notice in
her decision). Here, the deciding official testified that, after considering these
instances of unprofessional behavior, his decision about the appropriate penalty
changed from a 2-week suspension to removal. HT at 118-19 (testimony of the
deciding official). 3 Therefore, the ex parte information was plainly material.
¶13 Based on the foregoing, we find that the deciding official’s consideration of
new and material information undermined the appellant’s constitutional due
3
The deciding official testified to the following:
I started going through a couple of my own experiences with [the
appellant]. By the time I got to number 8, for unprofessional behavior for,
you know, all the things that are described in those letters, that’s really
when my mind changed . . . . So when I sat down, honestly, I hadn’t
been—in my head, I’m thinking, it’s probably about a two-week
suspension. It’s very serious, but when I got to the eighth instance of this
behavior being repeated to a greater or lesser degree, that’s when my mind
changed, and I said, I think the appropriate decision here is removal.
7
process guarantee of notice and of the opportunity to respond. Accordingly, we
reverse the initial decision. Because we reverse the initial decision on due
process grounds, we do not address the appellant’s remaining arguments on
review. See Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 10 (2012)
(declining to consider any of the appellant’s other arguments after reversing an
agency removal action on due process grounds).
ORDER
¶14 We ORDER the agency to cancel the appellant’s removal and restore the
appellant effective January 15, 2022. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶15 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶16 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶17 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
8
should contain specific reasons why the appellant believes that th e agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶18 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements s et forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
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).
4
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.
9
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on wh ich 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:
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.caf c.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.
10
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
11
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
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
12
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 address:
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 we bsite 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.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
13
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.