Angel Nieves v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANGEL D. NIEVES, DOCKET NUMBER

Appellant, NY-0752-17-0240-I-2

v.

DEPARTMENT OF THE ARMY, DATE: August 29, 2023

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.

Michael Huber, Esquire, Brooklyn, New York, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

¶1 The agency has filed a petition for review of the initial decision, which

reversed the appellant’s removal on due process grounds. For the reasons

discussed below, we GRANT the agency’s petition for rev iew, REVERSE the

administrative judge’s finding of a due process violation, and REMAND the case

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

to the New York Field Office for further adjudication in accordance with this

Remand Order.

BACKGROUND

¶2 The appellant was employed by the agency as a GS-6 Police Officer

stationed at Fort Hamilton, New York. Nieves v. Department of the Army, MSPB

Docket No. NY-0752-17-0240-I-1, Initial Appeal File (IAF), Tab 16 at 12. In

February 2017, the agency proposed his removal for Conduct Unbecoming a

Police Officer after he was arrested for the offense of driving while intoxicated.

IAF, Tab 19 at 7-10. Among other things, the proposal notice stated that the

appellant had been suspended for 30 calendar days in September 2014 for

Conduct Unbecoming a Police Officer and Failure to Follow a Written Directive .

Id. at 9. The misconduct underlying that suspension involved the appellant’s

arrest for slashing the tires of a soldier stationed at Fort Hamilton and then, after

being issued a letter barring him from the base, violating the bar letter. IAF,

Tab 20 at 11-12, Tab 21 at 4-6. The 2014 decision letter noted that the appellant

admitted to consuming alcohol at the time he allegedly slashed the soldier’s tires

and that he had thereafter successfully completed an alcohol treatment program.

IAF, Tab 20 at 6.

¶3 In his written reply to the deciding official in this case, the appellant

discussed his prior suspension and argued that that he would be willing to seek

additional treatment to ensure that he would not abuse alcohol in the future. IAF,

Tab 26 at 14-22. According to the deciding official’s memorandum documenting

the appellant’s oral reply, the appellant also raised these issues at that meeting.

Id. at 9-10.

¶4 The deciding official removed the appellant, IAF, Tab 17 at 4-13, and this

appeal followed, IAF, Tab 1. At the hearing requested by the appellant, the

deciding official testified that in the course of reviewing this case he spoke with

the proposing official about the appellant’s potential for rehabilitation. Nieves v.

3

Department of the Army, MSPB Docket No. NY-0752-17-0240-I-2, Appeal File

(I-2 AF), Tab 18, Hearing Compact Disc (HCD) (testimony of the deciding

official). He explained that, during this discussion he referred to a previous

incident mentioned in the proposal notice and that the proposing official

confirmed his suspicion that the appellant lacked rehabilitative potential. HCD

(testimony of the deciding official). He also testified that he could not recall

whether he previously disclosed this conversation to either the appellant or his

representative. HCD (testimony of the deciding official).

¶5 In her initial decision, the administrative judge concluded that the deciding

official’s hearing testimony established that he had violated the appellant’s due

process rights by engaging in an ex parte communication with the proposing

official about the appellant’s rehabilitative potential. I -2 AF, Tab 19, Initial

Decision (ID) at 4-7. She therefore reversed the removal. ID at 6-7. The

administrative judge did not discuss the merits of the agency action , the existence

of a nexus, or the reasonableness of the penalty.

¶6 The agency filed a petition for review, arguing that the administrative judge

erred in finding that it failed to provide the appellant with minimum due process

in removing him. 2 Petition for Review (PFR) File, Tab 1. The appellant filed a

response opposing the petition. PFR File, Tab 5.

¶7 Thereafter, the Office of the Clerk of the Board issued a notice to the

parties that clarified that, although the administrative judge had placed the burden

of proving that it provided the appellant with minimum due process on the

agency, a claim that the agency violated the appellant’s due process rights by

2

In her initial decision, the administrative judge ordered the agency to provide the

appellant with interim relief if either party filed a petition for review. ID at 8. With its

petition for review, the agency provides a certification that it had requested its servicing

human resources processing center to take the actions necessary to provide in terim

relief. PFR File, Tab 1 at 15. The appellant does not contest the agency’s provision of

interim relief, and thus we need not discuss this matter further. 5 C.F.R. § 1201.116.

4

engaging in ex parte communications is an affirmative defense for which the

appellant bears the burden of proof. PFR File, Tab 6. The notice informed the

appellant how he could establish that his due process rights were violated or that

the agency committed harmful procedural error, and provided him an opportunity

to submit additional evidence and argument. Id. at 2-3. The appellant responded

to the notice, reasserting that the agency violated his due process rights. PFR

File, Tab 7. Despite being afforded an opportunity to reply to the appellant’s

submission, the agency did not do so. PFR File, Tab 6 at 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 When, as here, a public employee has a property interest in his continued

employment, the Government cannot deprive him of that interest without due

process. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985).

Due process requires, at a minimum, that an employee being deprived of his

property interest be given “the opportunity to be heard ‘at a meaningful time and

in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)

(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)); Buelna v. Department

of Homeland Security, 121 M.S.P.R. 262, ¶ 16 (2014). Generally, a tenured

Federal employee is entitled to “notice of the charges against him, an explanation

of the employer’s evidence, and an opportunity to present his side of the story”

prior to the deprivation of his property right in continued employment.

Loudermill, 470 U.S. at 546; Buelna, 121 M.S.P.R. 262, ¶ 17. These

predecisional proceedings “need not definitely resolve the propriety of the

[penalty]” but are only “an initial check against mistaken decisions—essentially,

a determination of whether there are reasonable grounds to believe that the

charges against the employee are true and support the proposed action .”

Loudermill, 470 U.S. at 545-46.

¶9 In interpreting the Supreme Court’s precedent, our reviewing court, the

U.S. Court of Appeals for the Federal Circuit (Federal Circuit) , held in Ward v.

5

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), that 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 decisions on

the merits of a proposed charge or the penalty to be imposed. See Mathis v.

Department of State, 122 M.S.P.R. 507, ¶ 6 (2015). An employee’s due process

right to notice extends to both ex parte information provided to a deciding official

and information known personally to the deciding official, if the information was

considered in reaching the decision and not previously disclosed to the appellant.

Id. But not all ex parte communications rise to the level of due process

violations. Id. Rather, only ex parte communications that introduce new and

material information to the deciding official are constitutionally infirm. Id.

¶10 In Stone, the Federal Circuit identified the following factors to be used in

determining if ex parte information is new and material: (1) whether the ex parte

information introduced is cumulative, as opposed to new, information;

(2) whether the employee knew of the information and had a chance to respond to

it; 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; Mathis, 122 M.S.P.R. 507, ¶ 7. Ultimately, the Board 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. Stone, 179 F.3d at 1377; Mathis,

122 M.S.P.R. 507, ¶ 7.

¶11 An appellant’s claim that an agency violated his due process rights by

engaging in ex parte communications is an affirmative defense. Helman v.

Department of Veterans Affairs, 856 F.3d 920, 937 (Fed. Cir. 2017) (finding that

a claim that an appellant’s due process rights were violated is an affirmative

defense). The Board’s regulations provide that the appellant bears the burden of

proving his affirmative defenses by preponderant evidence. 5 C.F.R.

6

§ 1201.56(b)(2)(i)(C); see Hulett v. Department of the Navy, 120 M.S.P.R. 54,

¶¶ 10-11 (2013) (assigning the appellant the burden of proof regarding his

affirmative defense of a due process violation). Thus, the administrative judge

erred by assigning the agency the burden of proving that it provided the appellant

with minimum due process. As discussed below, after properly placing the

burden of proof, we find that the appellant failed to establish that his due process

rights were violated.

The record demonstrates that the purported ex parte communication introduced

cumulative, as opposed to new, information.

¶12 Regarding the first Stone factor, whether the information was new or

cumulative, the Board has explained that a deciding official does not violate an

employee’s due process rights when he considers issues raised by an employee in

his response to the proposed adverse action and then rejects those arguments in

reaching a decision. Mathis, 122 M.S.P.R. 507, ¶ 9; Grimes v. Department of

Justice, 122 M.S.P.R. 36, ¶ 13 (2014) (citing Wilson v. Department of Homeland

Security, 120 M.S.P.R. 686, ¶ 11 (2014), aff'd, 595 F. App’x 995 (Fed. Cir.

2015)); see 5 C.F.R. § 752.404(g)(1) (stating that, in rendering a decision on a

proposed adverse action, the agency will consider the reasons specified in the

notice and any answer of the employee or her representative, or both, made to a

designated official). Moreover, a deciding official does not violate an employee’s

due process rights by initiating an ex parte communication that only confirms or

clarifies information already contained in the record. Mathis, 122 M.S.P.R. 507,

¶ 10 (citing Blank v. Department of the Army, 247 F.3d 1225, 1229 (Fed. Cir.

2001). On the other hand, information from an ex parte discussion may be

considered new and material if it constitutes a significant departure fr om evidence

already in the record and the deciding official considers it in reaching a decision.

Id., ¶ 11 (citing Young v. Department of Housing and Urban Development,

706 F.3d 1372, 1375-78 (Fed. Cir. 2013)).

7

¶13 Here, as noted previously, the proposal notice outlined the appellant’s prior

disciplinary record. IAF, Tab 19 at 9. Significantly, in concluding that

discussion, the proposing official wrote that he saw “little to no potential for

rehabilitation.” Id. In addition, the appellant received a copy of the proposal and

decision notices from his prior suspension. Id. at 16. Furthermore, in his written

and oral replies to the instant proposed removal, the appellant addre ssed his prior

suspension, argued that a less severe sanction would suffice in this case, and

stated that he would be willing to seek additional treatment to prevent further

alcohol abuse. IAF, Tab 26 at 9-10, 19, 21.

¶14 The deciding official testified that he spoke with the proposing official

about the appellant’s potential for rehabilitation, noting the appellant’s prior

suspension, and that the proposing official confirmed the deciding official’s

suspicion that the appellant lacked rehabilitative potential . HCD (testimony of

the deciding official). The administrative judge found that the record was unclear

as to what, “precisely,” the proposing official said , and that the agency failed to

proffer evidence indicating that the proposing official “only reite rated”

information contained in the proposal notice. ID at 5-6. She concluded that the

record supported a finding that the information the proposing official provided to

the deciding official was new because “[i]f [the proposing official’s] additional

information was merely cumulative, there is no reason that it would have been the

sole factor that resolved [the deciding official’s] remaining skepticism.” ID at 6.

¶15 The administrative judge’s analysis was flawed. First, to the extent that the

record is unclear as to what the proposing official told the deciding official, the

lack of clarity weighs against a finding of a due process violation, as it is the

appellant’s burden to prove that a violation occurred, not the agency’s burden to

prove the absence of a violation. 5 C.F.R. § 1201.56(b)(2)(i)(C); see Hulett,

120 M.S.P.R. 54, ¶¶ 10-11 (assigning the appellant the burden of proof regarding

his affirmative defense of a due process violation). Second, contrary to the

administrative judge’s finding that the proposing official’s communication was

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“the sole factor that resolved [the deciding official’s] remaining skepticism,” ID

at 6, the deciding official testified that, although the proposing official’s

confirmation of his own suspicion that the appellant lacked rehabilitative

potential was an important factor in leading him to conclude that the appellant

lacked rehabilitative potential, “it was not the sole factor,” HCD (testimony of the

deciding official). The administrative judge gave no indication that she found the

deciding official’s testimony not credible. 3 Accordingly, her finding on this issue

appears to stem from an erroneous view of the deciding official’s testimony.

¶16 The only evidence in the record about the communication between the

deciding official and the proposing official comes from the deciding official’s

hearing testimony. As noted above, he indicated that he talked with the

proposing official about the appellant’s prior misconduct and the proposing

official reiterated that the appellant lacked rehabilitative potential. HCD

(testimony of the deciding official). As also noted previously, the proposal notice

set forth the appellant’s prior discipline and specifically stated that the proposing

official saw “little to no potential for rehabilitation.” IAF, Tab 19 at 9.

¶17 Thus, in appropriately applying the correct burden of proof for this

affirmative defense, we find that the appellant did not show that the deciding

official did anything more than confirm or clarify information already in the

record and disclosed to the appellant. IAF, Tab 19 at 9, 16; see Blank, 247 F.3d

at 1229. Nor did the appellant show that the proposing official revealed new

information to the deciding official.

3

The deciding official also testified that the proposing official ’s view of the appellant’s

rehabilitative potential was a consideration among others and that he took it into

consideration. HCD (testimony of the deciding official). None of these statements

supports the administrative judge’s conclusion.

9

The appellant failed to prove that he was unaware of the ex parte communication

and had no chance to respond to it.

¶18 Regarding the second Stone factor, whether the employee knew of the

information and had a chance to respond to it, the Federal Circuit has found that

information raised in an ex parte interview with the deciding official before he

rendered his decision “more than satisfie[d] the second Stone factor considering

that [the appellant] neither learned of the ex parte communication, nor had an

opportunity to respond to it before the deciding official.” Young, 706 F.3d

at 1377. Here, the record is unclear regarding whether the appellant learned of

the ex parte communication before providing his response to the deciding official.

¶19 At the hearing, the appellant’s representative asked the deciding official

whether he had the conversation with the proposing official about the appell ant’s

rehabilitative potential after the appellant had received the proposal and he had

given his reply. HCD (testimony of the deciding official). The deciding official

indicated that he could not recall if the conversation occurred before or after he

received the proposal notice from the proposing official. HCD (testimony of the

deciding official). The appellant’s representative also asked the deciding official

whether he had any recollection of disclosing the conversation with the proposing

official to either the appellant or his representative. HCD (testimony of the

deciding official). The deciding official replied that he did not recall, but noted

that he had a meeting with the appellant and his representative during which they

“discussed a number of things.” HCD (testimony of the deciding official). This

is all of the evidence on this issue as the appellant did not testify about whether

he was informed of the deciding official’s conversation with th e proposing

official. 4 Accordingly, based on the record evidence, the appellant failed to

4

On review, the appellant asserts that at the hearing the deciding official affirmed that

he never informed the appellant about his conversation with the proposing official prior

to removing him. PFR File, Tab 1 at 8. We have reviewed the hearing testimony and

find that the deciding official did not make such an explicit statement.

10

establish that he was not informed about the deciding official’s conversation with

the proposing official about his rehabilitative potential. 5

The appellant failed to show that the ex parte communication was “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.”

¶20 Regarding the third Stone factor, whether the communication was of the

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

particular manner, the court has recognized 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,” making the

“materiality of the ex parte communications . . . self-evident from the [d]eciding

[o]fficial’s admission.” Ward, 634 F.3d at 1280 n.2. Here, the deciding official

testified that the proposing official’s confirmation of his own suspicion that the

appellant lacked rehabilitative potential was an “important factor” in his

determination, but not the “sole factor.” HCD (testimony of the deciding

official). Because the communication was of some significance, but not the “sole

factor” in the deciding official’s decision-making process, we find that this factor

slightly weighs in the appellant’s favor.

¶21 As explained previously, in considering whether an appellant has

established a due process violation, the Board 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. Stone, 179 F.3d at 1377; Mathis, 122 M.S.P.R. 507, ¶ 7.

Weighing all the Stone factors, and particularly noting the first factor regarding

whether the ex parte information was new or cumulative, we find that the

5

That the appellant’s representative seemed to have learned about the conversation for

the first time at the hearing while questioning the deciding official is not evidence. Cf.

Felton v. Department of the Air Force, 106 M.S.P.R. 198, ¶ 7 (2007) (same).

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appellant has failed to meet his burden. See Blank, 247 F.3d at 1229 (finding that

when a deciding official initiates an ex parte communication that only confirms or

clarifies information already disclosed to the appellant, the re is no due process

violation); cf. Stone, 179 F.3d at 1376-77 (indicating that an ex parte

communication to the deciding official does not violate an employee’s due

process rights if the employee is given notice of and an opportunity to respond to

the information communicated).

The appellant failed to prove that the agency committed a harmful procedural

error, and we therefore remand this appeal so that the administrative judge may

adjudicate the merits of the agency’s case in the first instance .

¶22 If an appellant fails to prove that a deciding official’s ex parte

communications violated his due process rights, the Board must consider whet her

the agency committed harmful procedural error. Putnam v. Department of

Homeland Security, 121 M.S.P.R. 532, ¶ 10 (2014). A harmful error is an error

by the agency in the application of its procedures that is likely to have caused the

agency to reach a conclusion different from the one it would have reached in the

absence or cure of the error. Ronso v. Department of the Navy, 122 M.S.P.R. 391,

¶ 14 (2015); 5 C.F.R. § 1201.4(r). The agency’s “procedures” include those

required by statute, rule, or regulation, Jones v. Department of the Treasury,

93 M.S.P.R. 494, ¶ 10 (2003), and also encompass the binding provisions of

applicable collective bargaining agreements, Pleasant v. Department of Housing

and Urban Development, 98 M.S.P.R. 602, ¶ 8 (2005). It is the appellant’s

burden to prove the existence of a harmful error by preponderant evidence.

5 C.F.R. §§ 1201.4(r), 1201.56(b)(2)(i)(C), (c)(1).

¶23 Despite being provided the opportunity to do so, the appellant put forward

no argument or evidence that the agency committed harmful procedural error.

PFR File, Tabs 6-7. We nevertheless considered whether the agency violated

procedures requiring that, in arriving at its decision, it only consider the reasons

specified in the proposal notice and any reply provided by the employee . See

12

5 U.S.C. § 7513(b); 5 C.F.R. § 752.404(g). For the reasons discussed above, we

find that the appellant failed to prove that the deciding official based his decision,

even in part, on reasons not specified in the proposal notice or discussed in the

appellant’s response. Nor has the appellant established that any purported error

was likely to have caused the agency to reach a conclusion different from the one

it would have reached in the absence or cure of the error. 6 Accordingly, we find

that the appellant failed to establish that the agency committed harmful

procedural error.

¶24 The administrative judge did not make findings of fact regarding whether

the agency proved that the appellant committed the charged m isconduct,

established a nexus between the misconduct and the efficiency of the service, or

demonstrated the reasonableness of the imposed penalty. As the hearing officer,

the administrative judge is in the best position to make any necessary factual

findings and detailed credibility assessments. See Mastrullo v. Department of

Labor, 123 M.S.P.R. 110, ¶ 27 (2015). We therefore remand this appeal to the

administrative judge to resolve these issues in the first instance.

6

Although the deciding official testified that the proposing official ’s communication to

him was an important factor in his determination that the appellant lacked rehabilitative

potential, he noted that it was not the sole factor. HCD (testimony of the deciding

official). Considering the appellant’s position as a police officer and the fact that he

was arrested for driving while intoxicated—in addition to his previous misconduct also

involving alcohol abuse—we find it unlikely that the deciding official would have

mitigated the penalty in the absence of the proposing official ’s communication. IAF,

Tab 17 at 4-9.

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ORDER

¶25 For the reasons discussed above, we remand this case to the New York Field

Office for further adjudication in accordance with this Remand Order, including

the holding of a supplemental hearing regarding the merits of the agency action

and the reasonableness of the penalty.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.