# Angel Nieves v. Department of the Army

> Merit Systems Protection Board · August 29, 2023

URL: https://www.frixlaw.com/law-library/cases/9780907

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** August 29, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9780907

## How later opinions describe it (automated extraction)

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

## Opinion text

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THIS ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
8

“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).
11

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.
13

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9780907. Public record. Not legal advice.