UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANGEL D. NIEVES,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

NY-0752-17-0240-I-2

DATE: August 29, 2023

THIS ORDER IS NONPRECEDENTIAL1

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 review, 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 interim 

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 from 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 the 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 misconduct, 

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board