finding that the appellant was “not deprived of due process by not being advised in advance that the deciding official might draw [an] inference from the nature of the charged conduct”
How later courts described this case
- finding that the appellant was “not deprived of due process by not being advised in advance that the deciding official might draw [an] inference from the nature of the charged conduct”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH H. WILLIAMS, DOCKET NUMBER
Appellant, AT-0752-21-0567-I-1
v.
DEPARTMENT OF VETERANS DATE: January 4, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jerry Girley , Esquire, Orlando, Florida, for the appellant.
Andrew James Patch , Esquire, Tampa, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
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 review, VACATE the
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
The appellant was formerly employed as a Material Handler at the Veterans
Health Administration in Orlando, Florida, until the agency removed him,
effective July 17, 2021, based on three charges of inappropriate conduct, failure
to follow instructions, and absence without leave. Initial Appeal File (IAF),
Tab 4 at 25, 27-28. The appellant filed a Board appeal, alleging that the agency
removed him in retaliation for filing equal employment opportunity complaints.
IAF, Tab 1, Tab 12 at 83. Although not raised by the appellant, during the
conclusion of the hearing, the administrative judge identified a potential due
process issue and ordered the parties to address the issue in their closing briefs.
IAF, Tab 24, Hearing Audio, Tab 26 at 1. Both parties responded to the
administrative judge’s order. IAF, Tabs 28-29.
Subsequently, the administrative judge issued an initial decision, reversing
the agency’s removal action because she found that it violated the appellant’s due
process rights by considering improper ex parte information. IAF, Tab 30, Initial
Decision (ID). In particular, the administrative judge found that, based on the
deciding official’s testimony, the agency denied the appellant notice and
an opportunity to respond to its consideration that his conduct constituted a
“threat” in determining the appropriate penalty. ID at 4. The administrative
judge was not persuaded by the deciding official’s responses that he did not make
his decision on charges not brought and that he did not believe that he had the
ability to substitute charges. ID at 3.
The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant has responded to the agency’s petition. PFR File, Tab 4.
The agency has filed a reply. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
Pursuant to 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,
3
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.
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 to information known personally to the deciding official if
he considered it in reaching his decision without previously disclosing it to the
appellant. Id. Ward, Stone, and their progeny recognize, however, that not all
ex parte communications rise to the level of due process violations; rather, only
ex parte communications that introduce new and material information to the
deciding official are constitutionally infirm. Id.
In Stone, the U.S. Court of Appeals for the Federal Circuit identified the
following factors to be used to determine whether ex parte information is new and
material: (1) whether the ex parte communication introduces 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. Ultimately,
the Board’s inquiry in deciding whether an employee’s due process rights have
been violated is “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.
In the initial decision, the administrative judge found that the agency
violated the appellant’s due process rights by considering uncharged conduct,
or “a serious threat,” in its penalty determination without providing the appellant
notice and an opportunity to respond. ID at 2-3. In weighing the Stone factors,
the administrative judge determined that the deciding official’s consideration of a
“serious threat” introduced new information, that the appellant did not know of or
have a chance to respond to such information, and that “the agency’s
4
consideration of a charge other than that set forth in the notice of proposed
removal cannot fairly be deemed cumulative or immaterial to the deciding
official’s decision.” ID at 4.
On review, the agency argues that the administrative judge erred in finding
that the deciding official violated the appellant’s due process because
the proposal notice and its attachments provided the appellant with meaningful
notice of the charges against him and the agency’s perception of the charges.
PFR File, Tab 1 at 5-6; IAF, Tab 4 at 32, 39-40, 48-69. For the following
reasons, we agree.
Nothing in law or regulation requires that an agency affix a label to a
charge of misconduct. Otero v. U.S. Postal Service, 73 M.S.P.R. 198, 202
(1997). While an agency is required to state the reasons for a proposed adverse
action in sufficient detail to allow the employee to make an informed reply,
the charge must be viewed in light of the accompanying specifications and
circumstances, and should not be technically construed. Id. Here, the agency did
not charge the appellant with making a threat, nonetheless the proposal notice
indicated that the appellant made statements to the effect of: (1) “I guess I am
going to have to harm someone to get something done”; (2) “someone is going to
get hurt in here”; and (3) “[h]e was going to hurt someone.” IAF, Tab 4 at 39-40.
The narrative also contains dates, times, names of participants, and a detailed
description of the alleged events. Id. In addition, the alleged statements are
inherently threatening, and it was not necessary to specifically advise the
appellant that the deciding official might consider them as such. See Harding v.
U.S. Naval Academy, 567 F. App’x 920, 925-26 (Fed. Cir. 2014) (finding that the
appellant was “not deprived of due process by not being advised in advance that
the deciding official might draw [an] inference from the nature of the charged
conduct”). 2
2
Although Harding is an unpublished decision, the Board may rely on unpublished
Federal Circuit decisions where, as here, it finds the court’s reasoning persuasive.
Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011).
5
The Board has held 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. Alvarado v. Department of the Air Force , 97 M.S.P.R. 389, ¶ 15 (2004).
Consequently, we find that the deciding official’s consideration of the appellant’s
conduct as a serious threat was not new information. See Stone, 179 F.3d at
1377.
Because we find that the deciding official did not consider new
information, we disagree with the administrative judge’s determination that the
appellant did not know of that information or have an opportunity to respond to it.
ID at 4. To the contrary, for the reasons discussed above, we find that the
appellant understood the charges against him, as well as the agency’s perception
of those charges, and had an opportunity to provide a meaningful response despite
electing not to do so. Accordingly, regardless of whether the purported ex parte
information was of the type likely to result in undue pressure, the other factors do
not weigh in the appellant’s favor and do not warrant a finding that the alleged ex
parte information was so substantial and so likely to cause prejudice that no
employee could fairly be required to be subjected to a deprivation of property
under the circumstances. See Stone, 179 F.3d at 1377.
In light of the foregoing, we vacate the initial decision and remand the case
to the regional office for adjudication on the merits. On remand,
the administrative judge shall conduct any further proceedings necessary to make
findings regarding the charge, the appellant’s affirmative defense, nexus, and the
penalty, including a supplemental hearing, if appropriate. Thereafter,
the administrative judge shall issue a new initial decision.
6
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.