Petitioner: Thomas O. Ward
Respondent: U.S. Postal Service
Tribunal: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2010-3021
Issuance Date: February 17, 2011
Constitutional Issues – Due Process Defenses – Harmful Error
Ward appealed the Board’s decision, 112 M.S.P.R. 239 (2009), which affirmed the agency’s decision to remove him from employment based on a single charge of improper conduct arising out of an incident in which he allegedly shouted at a supervisor, acted in a manner that she perceived as threatening, and disobeyed her instructions to remain in her office. The agency’s notice of proposed removal did not reference any other misconduct by Ward. At the hearing before the Board’s administrative judge, the agency’s deciding official testified that before making his decision, he not only reviewed investigative documents regarding the charged incident but also spoke with 2 supervisors and a manager who discussed prior incidents in which Ward exhibited “loud, belligerent, [and] intimidating behavior.” The deciding official admitted that Ward’s “recurring pattern of behavior” affected his analysis of two Douglas factors – his confidence in Ward’s ability to satisfactorily perform his duties and Ward’s potential for rehabilitation. The administrative judge found that the deciding official properly considered Ward’s alleged past instances of misconduct because they “are precisely the types of non-disciplinary counselings a deciding official may use to enhance a penalty.” The judge further determined that the discussions were not improper ex parte communications because they were not “of the type that resulted in undue pressure upon [the deciding official] to rule in a particular manner.”
On petition for review, the Board found that the administrative judge had erred in two respects. First, the Board concluded that the administrative judge erred in finding that the deciding official was entitled to consider Ward’s alleged past misconduct in the penalty analysis. Second, the Board determined that the judge erred in analyzing whether the deciding official’s discussions regarding the alleged prior misconduct constituted improper ex parte communications. The Board reasoned that “[w]here an ex parte communication does not relate to the charge itself, but relates instead to the penalty, the Board has not considered such error to be [a] denial of due process of law . . . .” The Board explained that, in these circumstances, it would “remedy the error by doing its own analysis of the penalty factors” to determine whether “removal is within the bounds of reasonableness, considering the pertinent factors other than [Ward’s] past work record.” After doing this independent review, the Board concluded that the penalty of removal “does not exceed the tolerable limits of reasonableness.”
Holdings: The court vacated the Board’s decision and remanded for further proceedings:
1. The Board erred in failing to address the due process concerns arising out of the deciding official’s ex parte communications regarding Ward’s alleged prior instances of misconduct.
a. Where a public employee has a property interest in continued employment, the Due Process Clause of the Fifth Amendment requires that the employee be afforded notice “both of the charges and of the employer’s evidence” and an “opportunity to respond” before being removed from employment.
b. The ultimate inquiry, as set forth in Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999), 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 the deprivation of property under such circumstances.” Not every ex parte communication is a procedural defect so substantial and likely to cause prejudice that it undermines due process. Instead, only ex parte communications that introduce new and material information to the deciding official violate due process.
c. If the deciding official received new and material information by means of ex parte communications, thereby violating the employee’s due process rights, the “violation is not subject to the harmless error test.” Instead, the employee is automatically entitled to an “entirely new” and “constitutionally correct” removal proceeding.
d. The court “reject[ed] as arbitrary and unsupportable the Board’s distinction between ex parte communications relating to the charge itself and ex parte communications relating to the penalty. Indeed, if ex parte communications influence a deciding official’s penalty determination, contributing to the enhancement of the penalty to removal, the communications impact the employee’s property interest in continued employment no less than if they relate to the underlying charge.”
e. Accordingly, the court remanded the case to the Board to analyze whether the ex parte communications between the deciding officials and various agency supervisors and managers undermined Ward’s procedural due rights under Stone. If so, Ward must be afforded a “constitutionally correct removal procedure.”
2. Even if the Board concludes on remand that the ex parte communications did not rise to the level of a due process violation, the agency’s consideration of Ward’s alleged past instances of misconduct, without referencing these incidents in the notice of proposed removal, was still a procedural error that requires analysis under the harmless error test.
a. The Civil Service Reform Act, 5 U.S.C. § 7701(c)(2)(A), provides that the Board may not sustain an agency decision if the employee “shows harmful error in the application of the agency’s procedures in arriving at such decision.” The Board’s regulations define “harmful error” as an “[e]rror by the agency in the application of its procedures that is likely to have cause the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error.”
b. 5 C.F.R. § 752.404(f) provides that “[i]n arriving at its decision, the agency shall not consider any reasons for action other than those specified in the notice of proposed action.” It is a procedural error, in violation of this provision, for “an agency to rely on matters affecting the penalty it imposes without concluding those matters in the proposal notice.”
c. Despite recognizing this procedural error, the Board erred in concluding that it could “remedy the error” by performing an independent analysis of the Douglas factors to determine whether “removal is within the bounds of reasonableness.” Instead, the Board was required to run a harmless error analysis to determine whether the procedural error required reversal.
d. Arguably, the Board’s independent analysis of the Douglas factors was the Board’s attempt to perform a harmless error analysis. The focus of a harmless error analysis, however, is the agency and whether the agency is likely to have reached a different conclusion in the absence of the procedural error. The Board “own analysis” of Ward’s penalty did not focus on what the agency would have done in the absence of the procedural error and was therefore not a proper harmless error analysis. The Board must analyze whether “there is some indication that the agency would have regarded the sustained charges as insufficient to justify the penalty imposed.” If there is such an indication, the matter must be remanded “to the agency for redetermination of the appropriate penalty in the first instance.”