UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MELODY D. CARDER,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

DA-0752-14-0620-I-1

DATE: April 13, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Charles E. Allenburg, Esquire, Virginia Beach, Virginia, for the appellant.

Kathy A. Ault, Tinker Air Force Base, Oklahoma, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which 

cancelled the appellant’s 15-day suspension based upon a due process violation. 

Generally, we grant petitions such as this one only when: the initial decision 

contains erroneous findings of material fact; the initial decision is based on an 

erroneous interpretation of statute or regulation or the erroneous application of 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

the law to the facts of the case; the judge’s rulings during either the course of the 

appeal or the initial decision were not consistent with required procedures or 

involved an abuse of discretion, and the resulting error affected the outcome of 

the case; or new and material evidence or legal argument is available that, despite 

the petitioner’s due diligence, was not available when the record closed. See

Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, and based on the 

following points and authorities, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

¶2 At the time relevant to this appeal, the appellant held the position of 

Transportation Clerk. Compare Initial Appeal File (IAF), Tab 4 at 17 

(August 10, 2014 Standard Form 50, reflecting the Transportation Clerk position), 

with IAF, Tab 1 at 1 (August 25, 2014 appeal, reflecting an Administrative 

Support Clerk position). In March 2014, she notified the agency that she had 

been arrested for possession of marijuana and drug paraphernalia. See IAF, Tab 5 

at 8; see also id. at 9-14 (police reports). The agency proposed the appellant’s 

removal for illegal marijuana use and failure to comply with the drug-free 

workplace program. IAF, Tab 4 at 30-31. The deciding official upheld the illegal 

marijuana use charge and mitigated the removal to a 15-day suspension. Id. 

at 18-22.

¶3 The appellant appealed her suspension to the Board. IAF, Tab 1. Without 

addressing the merits of the charged misconduct, the administrative judge 

cancelled the suspension. IAF, Tab 16, Initial Decision (ID) at 2. The 

administrative judge found that the agency violated the appellant’s right to due 

process by failing to notify her that it would be considering some attendance 

issues as an aggravating factor in determining the appropriate penalty. ID at 2-7. 
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The agency has filed a petition for review. Petition for Review (PFR) File, Tab 1. 

The appellant has filed a response. PFR File, Tab 5.

¶4 When an agency intends to rely on aggravating factors as the basis for the 

imposition of a penalty, such factors should be included in the advance notice of 

adverse action so that the employee will have a fair opportunity to respond to 

those factors before the agency’s deciding official. Lopes v. Department of the 

Navy, 116 M.S.P.R. 470, ¶ 5 (2011). Here, the agency first argues that, contrary 

to the administrative judge’s finding, the deciding official did not consider the 

appellant’s purported attendance issues as an aggravating factor. PFR File, Tab 1 

at 6-7. Instead, the agency asserts that the deciding official simply cited her 

attendance to establish a nexus between the appellant’s off-duty conduct and the 

efficiency of the service. Id. at 7-8. We disagree.

¶5 Neither the proposal to removal the appellant, nor the subsequent decision 

to suspend her, contained any mention of her being on leave restriction; 

leave-related concerns; or an absence without leave charge. See IAF, Tab 4 

at 18-20, 30-31. In terms of past discipline, both letters indicated that the 

appellant had none. Id. at 19, 24. In terms of her past work record, length of 

service, and performance, both simply noted that the appellant had 5 years of 

prior service and her most recent performance rating was “fully successful.” Id. 

Nevertheless, the deciding official expressly testified that he considered her 

attendance in his “Douglas analysis.” See IAF, Tab 18, Hearing Transcript (HT) 

at 72 (referencing Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 

(1981) (discussing factors that are relevant for consideration in determining the 

appropriateness of a penalty)). He explained that he considered the appellant’s 

attendance in terms of her past discipline as well as her past work record, length 

of service, and performance. HT at 78-79; IAF, Tab 4 at 19. The administrative 

judge asked what the deciding official was thinking as he considered the 

appellant’s attendance in terms of past discipline, to which the deciding official 

indicated that the appellant was on a leave restriction letter. HT at 79. The 
4

administrative judge also asked why this was not included in his decision letter if 

it was considered an aggravating factor, to which the deciding official simply 

replied that he did not know. Id. Accordingly, the administrative judge correctly 

found that the appellant’s purported leave issues were used as an aggravating 

factor in the penalty determination. ID at 4, 6. 

¶6 The agency next suggests that the deciding official had personal knowledge 

of the appellant’s past attendance issues, and that this somehow distinguishes the 

present case from those where another party introduced new information to the 

deciding official. See PFR File, Tab 1 at 8-9. However, the distinction the 

agency is relying on is one that the Board has not accepted. See 

Lopes, 116 M.S.P.R. 470, ¶ 10. When a deciding official considers information 

not included in the proposed adverse action, regardless of whether that 

information was personally known to the deciding official or introduced by 

another party, the employee is no longer on notice of portions of the evidence 

relied upon by the agency in imposing the penalty, resulting in a potential 

constitutional violation. Id. 

¶7 Finally, the agency argues that information about the appellant’s purported 

attendance issues did not result in a due process violation because it was neither 

new nor material. The agency asserts that the information about her attendance 

was not new because her absences occurred in the past, prior to the suspension at 

hand. PFR File, Tab 1 at 9-10. The agency also suggests that the appellant 

admitted having attendance problems and that there is no reason to believe the 

deciding official would have reached a different result in the absence of this 

information. Id. at 11-16. 

¶8 Not every ex parte communication rises to the level of a due process 

violation; only ex parte communications that introduce new and material 

information to the deciding official constitute due process violations. Stone v. 

Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 

1999). The Board will consider the following factors, among others, to determine 
5

whether an ex parte contact is constitutionally impermissible: (1) “whether the ex 

parte communication merely introduces cumulative information or new 

information;” (2) “whether the employee knew of the error and had a chance to 

respond to it;” and (3) “whether the ex parte communications were of the type 

likely to result in undue pressure upon the deciding official to rule in a particular 

manner.” Id. at 1377. Ultimately, the question 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.” 2

 Ward, 634 F.3d at 1279. 

¶9 As to the first Stone factor, the fact that the appellant’s purported 

attendance issues occurred at some point in the past, prior to the proposed 

discipline at hand, is not dispositive. The information was still new, regardless of 

the date of occurrence, based upon the lack of notice to the appellant. See, e.g.,

Lopes, 116 M.S.P.R. 470, ¶¶ 10-11 (finding that the appellant’s prior discipline 

was new because the agency failed to include the information in its notice of 

proposed removal or elsewhere in the case file provided to the appellant). In 

addition, because the attendance issues were unrelated to anything contained in 

the record, it cannot be dismissed as cumulative. Cf. Blank v. Department of the 

Army, 247 F.3d 1225, 1229-30 (Fed. Cir. 2001) (finding that ex parte 

communications did not introduce new and material information in violation of 

due process where it merely confirmed and clarified that which was already 

contained in the record). 

 2 The agency’s reliance on Powers v. Department of the Treasury, 86 M.S.P.R. 256

(2000), for an alternate standard is misplaced. See PFR File, Tab 1 at 10-11. Powers

did note that the Board considers evidence to be material to a proceeding only where it 

is of sufficient weight to warrant a different outcome. Powers, 86 M.S.P.R. 256, ¶ 12. 

However, Powers also noted that 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. (citing Stone, 179 F.3d at 1377). Subsequent precedent from our reviewing court 

has clearly established that a due process violation is not subject to harmless error. See, 

e.g., Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011).
6

¶10 As to the second Stone factor, the appellant certainly had personal 

knowledge of her own attendance, but she lacked the knowledge that the deciding 

official would be considering it as aggravating. Her testimony before the 

administrative judge, acknowledging that she had taken a fair amount of leave for 

medical issues, HT at 103, is of no consequence. The relevant inquiry is whether 

the appellant knew of the information and had the opportunity to respond before 

the deciding official considered it. Stone, 179 F.3d at 1377. Because the agency 

failed to provide the appellant notice that her attendance would be considered an 

aggravating factor in its penalty analysis, she was unable to explain her leave to 

the deciding official or otherwise argue that it should not be considered 

aggravating for this unrelated misconduct. See Lopes, 116 M.S.P.R. 470, ¶ 11 

(finding that even though the appellant was clearly aware of his own prior 

suspension, the agency’s failure to advise him that it would be considered in his 

proposed removal deprived him of the opportunity to respond to it).

¶11 As to the third Stone factor, the deciding official’s testimony establishes 

that he considered the appellant’s purported attendance issues as aggravating in 

his penalty analysis. See HT at 79. Ex parte communication is plainly material 

when the deciding official has admitted that the information influenced his 

penalty determination. Silberman v. Department of Labor, 116 M.S.P.R. 501, 

¶ 12 (2011). To the extent that the agency implies that the deciding official may 

have imposed the same penalty even in the absence of the new information, PFR 

File, Tab 1 at 13-14, we are not persuaded, see Kolenc v. Department of Health &

Human Services, 120 M.S.P.R. 101, ¶ 22 (2013) (when the first Stone factor 

“strongly suggests” a due process violation, “any deficiency of the third factor is 

less significant”) (quoting Young v. Department of Housing & Urban 

Development, 706 F.3d 1372, 1377 (Fed. Cir. 2013)).

¶12 Based upon the above, we find no error in the administrative judge’s 

determination that the deciding official’s consideration of the appellant’s 

purported attendance issues rose to the level of a due process violation. That 
7

violation cannot be excused as harmless. See Lopes, 116 M.S.P.R. 470, ¶ 13. 

Instead, the suspension must be reversed and this matter remanded to the agency 

to afford the appellant constitutionally-correct procedures. See 

Silberman, 116 M.S.P.R. 501, ¶ 14.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court's website, www.cafc.uscourts.gov. 

Of particular relevance is the court's "Guide for Pro Se Petitioners and 

Appellants," which is contained within the court's Rules of Practice, and Forms 5, 

6, and 11.
8

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems 

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board