United States Court of Appeals 

for the Federal Circuit ______________________ 

RAYLAND YOUNG, 

Petitioner,

v.

DEPARTMENT OF HOUSING AND URBAN 

DEVELOPMENT,

Respondent. 

______________________ 

 

2011-3232

______________________ 

Petition for review of an arbitrator’s decision in FMCS 

no. 111228-52284-6, by Marvin J. Feldman. 

______________________ 

Decided: February 12, 2013

______________________ 

MATTHEW H. SOLOMSON, Sidley Austin, LLP, of 

Washington, DC, argued for petitioner. With him on the 

brief was KYLE J. FIET. Of counsel on the brief was JACOB 

Y. STATMAN, Snider & Associates, LLC, of Baltimore, 

Maryland. 

HILLARY A. STERN, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, of Washington, DC, argued for 

respondent. With her on the brief were STUART F.

DELERY, Acting Assistant Attorney General, JEANNE E.
2 YOUNG v. HUD

DAVIDSON, Director, and BRIAN M. SIMKIN, Assistant 

Director. 

______________________ 

 Before PROST, O’MALLEY, and REYNA, Circuit Judges. 

 Opinion for the court filed by Circuit Judge

REYNA. Dissenting opinion filed by Circuit Judge PROST. 

REYNA, Circuit Judge.

Rayland Young seeks review of the arbitrator’s opinion and award, dated August 31, 2011, denying his grievance that challenged his termination. For the reasons set 

forth below, we reverse the arbitrator’s decision and 

remand for further proceedings consistent with this 

opinion.

I. BACKGROUND

Mr. Young served as a Public Housing Revitalization 

Specialist in the Office of Public Housing in the Cleveland, Ohio office of the Department of Housing and Urban 

Development (HUD). He had been employed by HUD for 

more than ten years. On August 31, 2010, Mr. Young was 

representing himself at an arbitration hearing, appealing 

his five-day suspension for disruptive behavior, misrepresentation of authority, and use of insulting language to 

and about other employees. One of the witnesses testifying against him was Gregory Darr, the Executive Director 

of the Coschocton Metropolitan Housing Authority and a 

HUD client.

Following Mr. Darr’s testimony, there was a recess in 

the proceeding. According to Mr. Darr, while he was 

walking down the hallway, about 25-30 feet away from 

Mr. Young, Mr. Young shouted from immediately outside 

the door of the hearing room, “[y]ou are a racist. You are 

a member of the KKK, and you should be shot.” Mr. Darr 
 YOUNG v. HUD 3

reported that he was shaken by the alleged incident, and 

he immediately relayed the events to an administrative 

officer, Reishmemah Haggins, and to the office manager, 

Doug Shelby. Mr. Darr also insisted on filing a statement 

with the Federal Protective Service. Mr. Darr did not 

identify any person who directly witnessed the alleged 

confrontation. In the days that followed the incident, 

distress within the office grew as word of the supposed 

confrontation spread. On September 3, 2010, Mr. Young 

was placed on administrative leave. 

Shawn Sweet, Director of the Cleveland Hub Office of

Public Housing prepared a proposal for disciplinary action 

to be taken against Mr. Young. Ms. Sweet determined 

that Mr. Young’s conduct was similar to Offense Five from 

the HUD Handbook No. 0752, “[r]ude boisterous, or 

disruptive conduct; use of insulting, abusive or offensive 

language to or about other employees,” but bordered on 

Offense Six, “[t]hreatening behavior.” His threatening 

behavior was her key concern in recommending Mr. 

Young’s termination. But the reason Ms. Sweet gave for 

the punishment she recommended was that he “[made] an 

aggressive or intimidating statement to an Agency witness at an arbitration hearing.” Joint App’x 17.

Once Ms. Sweet issued her notice of proposed removal, Unabyrd Wadhams, Regional Public Housing Director, 

became the deciding official. Ms. Wadhams reviewed the 

proposal as well as the notes and supporting documents. 

She also interviewed several relevant witnesses, including 

Mr. Darr, Mr. Shelby, Ms. Haggins, and Jimmy Davis. 

Notably, Ms. Wadhams conducted all of her interviews 

after Mr. Young submitted his oral and written statements. This meant that Mr. Young was unaware of the 

content and substance of the interviews and was unable 

to respond to anything unearthed during those interviews.
4 YOUNG v. HUD

Ms. Wadhams found Mr. Darr’s account of the incident credible, but its only support came from other individuals who relied on what Mr. Darr had told them about 

the incident. No witnesses testified that they either saw 

or heard Mr. Young yell or shout at Mr. Darr. In contrast, 

Mr. Davis, a HUD employee assisting Mr. Young in the 

arbitration, submitted an affidavit on behalf of Mr. Young 

in which he stated, “I was with Mr. Young the entire time 

during this break. He never approached Mr. Darr and did 

not make any intimidating or aggressive statements to 

him. As a matter of fact he never said anything to Mr. 

Darr.” Joint App’x 35. During an interview held after 

Mr. Young made his submissions, Mr. Davis also testified 

that Mr. Young was in his view the entire break and that 

he did not witness Mr. Young scream, threaten, or otherwise interact with Mr. Darr. During the arbitration, 

HUD stipulated that Thomas Massouras, counsel for 

HUD at the hearing outside which the incident allegedly 

occurred, stayed in the hearing room during the entire 

recess and heard no confrontation or yelling. Consistent 

with these clear statements, Mr. Young and Mr. Davis 

maintained that they spent the entire recess outside the 

hearing room, while Mr. Davis later acknowledged in his 

interview that the two went to his cubicle during the 

recess and that he checked email and attended to other 

matters. Ms. Wadhams determined that this discrepancy 

wholly undermined Mr. Davis’ credibility as a witness 

and, as a result, Ms. Wadhams determined that Mr. 

Young engaged in the conduct described in Ms. Sweet’s 

proposal for removal. Mr. Young was never apprised of 

these supposed inconsistencies, nor did he have a chance 

to respond to them because the interview only occurred 

after Mr. Young had fully been heard. 

In sustaining the recommendation to remove Mr. 

Young, Ms. Wadhams explained that she considered this 

as his second offense (the first being the conduct that gave 

rise to the five-day suspension). She viewed Mr. Young’s 
 YOUNG v. HUD 5

conduct as a very serious threat, and one that was particularly egregious because he directed it at a HUD client. 

She also explained that the language Mr. Young allegedly 

used was similar to language he allegedly used on other 

occasions, including the incident that gave rise to the 

prior appeal, so she treated those past incidents as evidence of a pattern of misconduct. On the basis of these 

considerations, Ms. Wadhams concluded that removal 

was the appropriate measure.

Following Ms. Wadhams’ decision, Mr. Young arbitrated his grievance before Marvin J. Feldman. The 

arbitrator found Mr. Darr’s testimony credible while Mr. 

Davis’ testimony was inconsistent and lacking in candor. 

As for the proposed penalty, the arbitrator also noted that 

this was Mr. Young’s second offense. But when discussing 

the first incident, the arbitrator described it as “nothing 

more than the predecessor of the activity involving the 

instant matter.” Joint App’x 12. Finally, regarding Mr. 

Young’s due process arguments, the arbitrator found 

them unfounded because he had been given adequate 

time at the end of his arbitration hearing to address 

them. The arbitrator found the charge against Mr. Young 

supported by preponderant evidence and denied the 

grievance. Following the arbitrator’s decision, Mr. Young 

appealed to this court. We have jurisdiction pursuant to 5 

U.S.C. §§ 7121(f) and 7703.

II. STANDARD OF REVIEW

This court reviews an arbitrator’s decision, issued 

pursuant to a negotiated grievance procedure, under the 

same standard that applies to appeals from the Merit 

Systems Protection Board. 5 U.S.C. § 7121(f) (2006); 

Dixon v. Dep’t of Transp., 8 F.3d 798, 803 (Fed. Cir. 1993). 

Under that standard, we must affirm the arbitrator’s 

decision unless it is (1) arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law; (2) 

obtained without procedures required by law, rule, or 
6 YOUNG v. HUD

regulation having been followed; or (3) unsupported by 

substantial evidence. 5 U.S.C. § 7703(c); Dixon, 8 F.3d at 

803. In addition, we must reverse an arbitrator’s decision 

if it is not in accordance with the requirements of the Due 

Process Clause of the Fifth Amendment or any other 

constitutional provision. Cf. Ward v. U.S. Postal Serv., 

634 F.3d 1274, 1278 (Fed. Cir. 2011). 

III. DISCUSSION

The proceedings leading to Mr. Young’s removal present serious concerns related to constitutional due process 

and observance of agency procedures, both of which the 

arbitrator failed to adequately address. In that order, we 

explain why each concern amounts to a violation and 

requires reversal. 

A. Due Process

Procedural due process requires that certain substantive rights—including the property interest established by 

certain kinds of federal employment—cannot be deprived 

unless constitutionally adequate procedures are followed. 

Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368, 1375 (Fed. 

Cir. 1999) (quoting Cleveland Bd. of Educ. v. Loudermill, 

470 U.S. 532, 541 (1985)). Applicable to this case are 

“[t]he essential requirements of due process, . . . notice 

and an opportunity to respond.” Id. at 1375-76 (quoting 

Loudermill, 470 U.S. at 546). As such, an 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 before termination. Id. at 

1376 (quoting Loudermill, 470 U.S. at 546); see also

Douglas v. Veterans Admin., 5 M.S.P.R. 280, 304 (1981). 

When an employer obtains new and material information through ex parte communications, an “employee’s 

constitutional due process guarantee of notice (both of the 

charges and of the employer's evidence) and the opportunity to respond” are undermined. Stone, 179 F.3d at 
 YOUNG v. HUD 7

1376. Where an employee has notice only of certain 

charges or portions of the evidence and the deciding 

official considers new and material information, procedural due process guarantees are not met because the 

employee is no longer on notice of the reasons for dismissal and/or the evidence relied upon by the agency. Id.

As we observed in Stone, not every ex parte communication is a procedural defect that is so substantial and so 

prejudicial as to undermine the due process guarantee 

and require an entirely new administrative proceeding. 

Rather, “only ex parte communications that introduce new 

and material information” to the deciding official violate 

the due process guarantee of notice. Id. at 1377. 

In Stone, we identified several useful factors to consider when determining if new and material information 

has been introduced by means of ex parte contacts: (1) 

whether the ex parte communication introduces “cumulative” information or new information; (2) whether the 

employee knew of the communication and had a chance to 

respond; and (3) whether the ex parte communication 

resulted in undue pressure upon the deciding official to 

rule in a particular manner. Id. Where “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,” a due process violation has occurred and the 

former employee is entitled to a new constitutionally 

correct removal procedure. Id. Such a violation is not 

subject to the harmless error test. Id. (citing Sullivan v. 

Dep’t of the Navy, 720 F.2d 1266, 1274 (Fed. Cir. 1983)). 

Under the first Stone factor, HUD argues that the deciding official uncovered cumulative, rather than “new 

and material,” information during her investigatory 

interviews of Mr. Darr, Mr. Shelby, Ms. Haggins, and Mr. 

Davis. HUD maintains that Blank v. Department of the 

Army, 247 F.3d 1225 (Fed. Cir. 2001), authorizes such 
8 YOUNG v. HUD

interviews to “confirm and clarify information that was 

already contained in the record.” Id. at 1229.

We are convinced that the ex parte communications in 

this case were more than “confirming and clarifying 

information” that was already on the record because the 

deciding official described the ex parte communication as 

a “huge” departure from written statements already on 

the record. The deciding official also admitted that the ex 

parte communications were the most critical statements 

in her mind. The significant and overwhelming role that 

the new communication played in the termination decision makes it evident that the ex parte communications 

introduced new and material information as understood 

under the first Stone factor.

As we observed in Ward—a case very similar to this 

one—the third Stone factor, undue pressure, is less relevant to determining whether the ex parte communications 

deprived the employee of due process where, as here, the 

deciding official admits that the ex parte communications 

influenced her determination. 634 F.3d at 1280 n.2. 

Based on record admissions regarding the significance of 

the ex parte communications, the first Stone factor strongly suggests a due process violation while any deficiency of 

the third factor is less significant. 

We also find HUD’s reliance on Blank misplaced for 

another reason. In that case, the Board actually analyzed 

the allegedly improper ex parte communications under the 

Stone factors, and this court found those findings supported by substantial evidence. Blank, 247 F.3d at 1229. 

In this case, the arbitrator performed no due process 

analysis whatsoever. Cf. Stone, 179 F.3d at 1377. Instead, the arbitrator merely noted that “[Mr. Young] 

received a full disclosure by the employer when requested . . . . [and] . . . was given, at the end of the hearing, 

sufficient time to reflect on his activities in the case.” 

Joint App’x 15. But the opportunity “to reflect on his 
 YOUNG v. HUD 9

activities” post-termination does not address whether Mr. 

Young had notice and an opportunity to be heard at the 

investigation stage. Instead, the controverted ex parte

contacts arose after Mr. Young had made his written and 

oral statements to the deciding official. Mr. Young had no 

opportunity to respond to the allegedly inconsistent 

statements Mr. Davis had made only in his ex parte

interview with the deciding official before the deciding 

official rendered her decision. This defect during the 

investigation stage more than satisfies the second Stone

factor considering that Mr. Young neither learned of the 

ex parte communication, nor had an opportunity to respond to it before the deciding official. We also note the 

likelihood that any response from Mr. Young would have 

been meaningful in addressing the allegedly inconsistent 

statements. Given the layout of the HUD offices, the 

proximity of the hearing room to Mr. Davis’s cubicle, and 

the sworn testimony that Mr. Young was in view of Mr. 

Davis at all times, the perceived inconsistency in Mr. 

Davis’s statements appears easily reconcilable.

Mr. Young was entitled to “procedural fairness at 

each stage of the removal proceedings,” not just upon 

review of the termination decision. Stone, 179 F.3d at 

1376. No amount of time for reflection can excuse past 

due process violations. “[W]hen these rights are undermined, [he] is entitled to relief regardless of the stage of 

the proceedings.” Id. We conclude as a matter of law that 

the ex parte communications from this case were so substantial and so likely to cause prejudice that no employee 

can fairly be required to be subjected to a deprivation of 

property under these circumstances. Id. at 1377. A due 

process violation has occurred and Mr. Young is entitled 

to a new constitutionally correct removal procedure.1

1 The dissent accuses the majority of wearing blinders in our review of the termination proceeding. The 

problem with this perspective is that the dissent, like the 

 
10 YOUNG v. HUD

B. Violation of Agency Procedures

Even if Mr. Young’s due process rights had not been 

violated, the deciding official’s conduct resulted in a 

harmful procedural error requiring reversal. Cf. Ward, 

634 F.3d at 1281. Applicable regulations instruct the 

deciding official to “consider only the reasons specified in 

the notice of proposed action and any answer of the employee” in arriving at a removal decision. 5 CFR § 

752.404(g)(1) (2012). Similarly, HUD’s Adverse Actions 

Handbook explains that a deciding official’s “decision 

must be based on the evidence relied upon to support the 

proposal, and not on ‘ex parte’ (with only one side present) 

communications; i.e., conversation that provides additional evidence that is not provided to the employee for comment or response.” Dep’t of Housing and Urban Dev. 

Admin., Handbook 0752.02 REV-3, Adverse Actions (Dec. 

1, 2000). “It is a procedural error . . . for ‘an agency to 

rely on matters . . . without including those matters in the 

proposal notice.’” Ward, 634 F.3d at 1281 (quoting Coleman v. Dep’t of Defense, 100 M.S.P.R. 574, 579 (2005)). 

Accordingly, because the deciding official relied on ex 

parte communications that were not part of the original 

proposal for removal, HUD committed procedural error. 

Id. 

deciding officer below, starts from the position that Mr. 

Young indisputably engaged in the behavior of which he 

is accused, relying on prior experiences, the truth and 

veracity of which were not adjudged below or brought on 

appeal. See, e.g., dissent at 2 (“Young is not a stranger to 

disciplinary proceedings.”); see also id. at 2 n.1 (crediting 

the unsubstantiated “fears” of Mr. Young’s co-workers). 

Thus, the dissent concludes that the ex parte communications were harmless procedural errors that merely “confirmed” Mr. Young’s behavior. We believe the record 

evidence on that point is sufficiently in dispute that Mr. 

Young’s due process rights must be safeguarded.

 
 YOUNG v. HUD 11

C. Evidence of Prior Misconduct

Finally, we believe that the deciding official and the 

arbitrator erred in basing their decisions—in part—upon 

similar instances of past misconduct. In particular, the 

deciding official explained that she found “Mr. Darr’s 

report . . . credible because the language he reported [Mr. 

Young] using is similar to language that the record shows 

[he] . . . used on other occasions, including those which 

have been the basis for prior discipline.” Joint App’x 22. 

Similarly, the arbitrator noted that “[t]here is no doubt in 

th[e] writer’s mind [Mr. Young] was responsible for the 

commentary to Darr at the time and place complained of. 

[Mr. Young’s] alleged activity was nothing more than a 

continuation of his behavior pattern that has followed the 

course of his presidency at the Cleveland HUD agency 

office.” Id. at 11. 

The Board has previously held that, while prior misconduct may be considered in determining the appropriateness of a penalty or impeaching credibility where the 

prior misconduct relates to the propensity for honesty, 

reliance on prior conduct to prove whether the petitioner 

engaged in the same conduct on another occasion is 

inappropriate. See Carrick v. U.S. Postal Serv., 67 

M.S.P.R. 280, 283, aff’d, 69 F.3d 555 (Fed. Cir. 1995); see 

also Bennett v. Dep’t of the Air Force, 84 M.S.P.R. 132, 138 

(M.S.P.B. 1999); Hawkins v. Smithsonian Inst., 73 

M.S.P.R. 397, 403 (M.S.P.B. 1997). Similarly, in Ibrahim 

v. Department of the Army, 30 M.S.P.R. 531, 536 (1986), 

the Board, looking to Federal Rule of Evidence 404(a) for 

guidance, stated that “[t]he basic rule is that character 

evidence may not be introduced circumstantially to prove 

the conduct of the witness.” We agree. While the Federal 

Rules of Evidence do not apply to Board hearings, we 

have found them to be a helpful guide to proper hearing 

practices. Yanopoulos v. Dep’t of Navy, 796 F.2d 468, 471 

(Fed. Cir. 1986). On remand, Mr. Young’s past misconduct should not be used to prove charges that have been 
12 YOUNG v. HUD

asserted against him in this case. Mr. Young’s identity is 

not at issue here and the government’s reliance on Federal Rule of Evidence 404(b) to excuse this use of character 

evidence is without merit.

IV. CONCLUSION

Because we conclude that Mr. Young’s due process 

rights have been violated and that the agency violated its 

own procedures, we reverse the arbitrator’s decision and 

remand for further proceedings consistent with this 

opinion. Given this disposition, we need not address the 

other grounds for relief asserted by the petitioner. 

REVERSED AND REMANDED

COSTS

No costs.
United States Court of Appeals 

for the Federal Circuit ______________________ 

RAYLAND YOUNG, 

Petitioner,

v.

DEPARTMENT OF HOUSING AND URBAN 

DEVELOPMENT,

Respondent. 

______________________ 

 

2011-3232

______________________ 

Petition for review of an arbitrator’s decision in FMCS 

no. 111228-52284-6, by Marvin J. Feldman. 

PROST, Circuit Judge, dissenting.

I disagree with the majority that Young’s termination 

amounted to a violation of his due process rights. In my 

opinion, Young received all the process he was due—and 

more. The majority views the termination proceedings 

with blinders, focusing solely on one particular portion of 

Wadhams’s investigation without considering the extensive pre- and post-termination proceedings that Young 

received. In doing so, the majority creates an unnecessarily stringent due process standard that bumps up 

against Supreme Court precedent and opens the door to 

meritless claims by duly-terminated employees. For these 

reasons, I respectfully dissent. 
2 YOUNG v. HUD

I 

Young is not a stranger to disciplinary proceedings. 

The alleged conduct at issue in this case occurred during 

an earlier arbitration proceeding in which Young was 

contesting a five-day suspension for allegedly engaging in 

disruptive behavior when he did not receive a specific 

desk. J.A. 6. One of HUD’s witnesses at that earlier 

proceeding was Gregory Darr, who happened to be visiting HUD’s Cleveland Field Office when Young had engaged in the behavior upon which his five-day suspension 

had been based. While questioning Darr during that 

proceeding, Young, on the record, asked Darr whether he 

was a racist. Young later allegedly told Darr during a 

break in the same proceeding, “You are a racist, you are a 

member of the Ku Klux Klan and you should be shot.”1 

J.A. 17. Based on this latter statement, Shawn Sweet 

proposed Young’s removal, and Young ultimately was 

terminated. 

II

Under Cleveland Board of Education v. Loudermill, 

an agency’s pre-termination proceedings need only afford 

the employee “oral or written notice of the charges against 

him, an explanation of the employer’s evidence, and an 

opportunity to present his side of the story.” 470 U.S. 

532, 547 (1985). These proceedings “need not definitely 

1 Indeed, in response to Young’s alleged statement 

during the break, his coworkers “expressed elevated 

concern in the possibility that Mr. Young’s unpredictable 

behavior will become violent.” J.A. 13. In fact, one 

coworker stated that “people here are scared, and their 

feelings are becoming more intensified because of the 

behavior of Mr. Young. They are afraid of him. . . . This is 

no way to work. No one should come into work fearful of 

what might happen if Mr. Young shows up and gets 

angry.” J.A. 14. 

 
 YOUNG v. HUD 3

resolve the propriety of the discharge” 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.” Id. at 545-46. Here, 

Young received all the process to which he was entitled. 

The notice of proposed removal informed Young that his 

removal was based on the statement he allegedly made to 

Darr. It further noted that there was evidence that Darr 

was visibly shaken by Young’s alleged statement and that 

Darr had complained to the Field Office Manager. J.A. 

17. Young was then given an opportunity to respond to 

this charge prior to his termination. Ultimately, Young’s 

termination was based on the precise charge for which he 

was accorded an opportunity to respond. In my opinion, 

these pre-termination proceedings undoubtedly provided 

enough process to allow Wadhams, the deciding official, to 

determine whether there were reasonable grounds to 

believe that Young made the alleged statements and 

whether termination was the appropriate penalty. 

The majority, however, concludes that these pretermination proceedings were insufficient because Young 

did not have an opportunity to respond to the evidence 

uncovered during Wadhams’s ex parte pre-termination 

investigation. As we have previously recognized, however, “not every ex parte communication is a procedural 

defect so substantial and likely to cause prejudice that it 

undermines . . . due process.” Ward v. U.S. Postal Serv., 

634 F.3d 1274, 1279 (Fed. Cir. 2011) (quoting Stone v. 

FDIC, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999)). Instead, 

“the ultimate inquiry 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.

(quoting Blank v. Dep’t of the Army, 247 F.3d 1225, 1229 

(Fed. Cir. 2001)). 
4 YOUNG v. HUD

Here, I cannot accept that the identified ex parte

communications created such prejudice to Young that his 

due process rights were violated. Young argues that these 

ex parte communications—particularly Wadhams’s communications related to Davis’s alibi for Young—led Wadhams to discount Davis’s affidavit, an affidavit which 

Young himself had submitted to support his response to 

the proposed notice of removal. See Young Br. 22 (“In 

particular, Ms. Wadhams discounted Mr. Davis’ affidavit 

upon information she obtained ex parte from Mr. Davis 

and other HUD employees she interviewed, and this 

information was pivotal to her decision to sustain the 

charge against Mr. Young.”). The ex parte communications, therefore, did not result in new and material information to support the charge against Young, but merely 

followed up on Young’s own evidence. That is, Young was 

informed of the specific charge against him, had an opportunity to respond to the charge, and was ultimately 

removed based solely on that charge. Nevertheless, 

Young is arguing that he had a right to know—before his 

termination—whether the deciding official would credit 

his evidence. This is not the law.

Furthermore, to the extent that Young is arguing that 

Wadhams’s additional communications with HUD employees violated his due process rights, those communications simply confirmed what was already noted in the 

proposed notice of removal: Darr was visibly shaken after 

the alleged encounter with Young. J.A. 17. Where, as 

here, the deciding official interviews other agency employees “merely to confirm and clarify information that 

was already in the record . . . there is no due process 

violation.” Blank, 247 F.3d at 1229. Consequently, on 

this record, I am unwilling to conclude that Wadhams’s ex 

parte communications were “so substantial and so likely 

to cause prejudice” that they amounted to a due process 

violation. 
 YOUNG v. HUD 5

Even assuming Wadhams’s ex parte investigation did 

taint the pre-termination proceedings, the posttermination hearings before the arbitrator decidedly 

cured any procedural due process deficiencies. Our sister 

circuits, applying Loudermill, have recognized that “extensive post-termination proceedings may cure inadequate pre-termination proceedings.” Krentz v. Robertson 

Fire Prot. Dist., 228 F.3d 897, 902 (8th Cir. 2000); Schacht 

v. Wisconsin Dep’t of Corrections, 175 F.3d 497, 503 (7th 

Cir. 1999) (“[Plaintiff’s] procedural due process claim fails 

. . . because, even if he could prove his claim, he had 

adequate post-termination administrative remedies he 

could have pursued.”). In this case, the arbitrator held a 

four-day hearing during which Davis testified and Young 

had an opportunity both to present his side of the story 

and to cross-examine HUD’s witnesses. The arbitrator 

was not persuaded by Young’s version of the events and 

instead credited Darr’s testimony. We owe the arbitrator’s determinations the same deference that we apply to 

decisions from the Board. See 5 U.S.C. § 7121(f); Frank v. 

Dep’t of Transp., 35 F.3d 1554, 1556 (Fed. Cir. 1994). 

III

I also disagree with the majority’s determination that 

Wadhams’s conduct violated agency policy and somehow 

“resulted in a harmful procedural error requiring reversal.” Maj. Op. at 10. As an initial matter, it is unclear 

whether HUD’s Adverse Actions Handbook is actually 

binding on the agency. See Farrell v. Dep’t of the Interior, 

314 F.3d 584, 590 (Fed. Cir. 2002) (“The general consensus is that an agency statement, not issued as a formal 

regulation, binds the agency only if the agency intended 

the statement to be binding.” (citations omitted)). But 

even if it were, Wadhams’s ultimate decision was not 

“based on” her ex parte communications. Nor did Wadhams rely on these communications to glean additional 

reasons for terminating Young in violation of 5 CFR 

§ 52.404(g)(1). Rather, the communications here were 
6 YOUNG v. HUD

merely an attempt to confirm and clarify information—

submitted by Young—that was already contained in the 

record. In my view, such communications do not amount 

to procedural error, let alone harmful procedural error. 

Finally, neither the arbitrator nor Wadhams improperly relied upon Young’s prior misconduct. While the 

arbitrator did mention it, there is no indication that this 

recognition played any role in his conclusion that the 

agency proved the charge at issue here. Indeed, before 

discussing Young’s past behavior pattern, the arbitrator 

had already concluded that “[t]here is no doubt in this 

writer’s mind that the grievant was responsible for the 

commentary to Darr at the time and place complained of.” 

J.A. 11. Similarly, Wadhams’s decision letter expressly 

recognized “that the sustained charge, standing alone, 

regardless of [the] first or second offense, is sufficient to 

justify [Young’s] removal.” J.A. 23. 

IV

In sum, let us be clear: Wadhams did not rely upon 

her ex parte communications to bring additional charges 

against Young, or even to provide additional proof that 

Young committed the misconduct specifically charged

here. Rather, she relied upon these communications 

merely to confirm and clarify information that was already contained in the record. That is not a violation of 

due process. We should defer to the arbitrator’s assessment of Young and his claim and affirm. I respectfully 

dissent.