Ward violations at MSPB (the prototype case of denial of Due Process)


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.”

copied 3/28/14 from: http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=578439&version=580161&application=HTML