UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOSEPH H. WILLIAMS,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

AT-0752-21-0567-I-1

DATE: January 4, 2024

THIS ORDER IS NONPRECEDENTIAL1

Jerry Girley, Esquire, Orlando, Florida, for the appellant.

Andrew James Patch, Esquire, Tampa, Florida, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

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, VACATE the

initial decision, and REMAND the case to the regional office for further

adjudication in accordance with this Remand Order.

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

The appellant was formerly employed as a Material Handler at the Veterans

Health Administration in Orlando, Florida, until the agency removed him,

effective July 17, 2021, based on three charges of inappropriate conduct, failure

to follow instructions, and absence without leave. Initial Appeal File (IAF),

Tab 4 at 25, 27-28. The appellant filed a Board appeal, alleging that the agency

removed him in retaliation for filing equal employment opportunity complaints.

IAF, Tab 1, Tab 12 at 83. Although not raised by the appellant, during the

conclusion of the hearing, the administrative judge identified a potential due

process issue and ordered the parties to address the issue in their closing briefs.

IAF, Tab 24, Hearing Audio, Tab 26 at 1. Both parties responded to the

administrative judge’s order. IAF, Tabs 28-29.

Subsequently, the administrative judge issued an initial decision, reversing

the agency’s removal action because she found that it violated the appellant’s due

process rights by considering improper ex parte information. IAF, Tab 30, Initial

Decision (ID). In particular, the administrative judge found that, based on the

deciding official’s testimony, the agency denied the appellant notice and

an opportunity to respond to its consideration that his conduct constituted a

“threat” in determining the appropriate penalty. ID at 4. The administrative

judge was not persuaded by the deciding official’s responses that he did not make

his decision on charges not brought and that he did not believe that he had the

ability to substitute charges. ID at 3.

The agency has filed a petition for review. Petition for Review (PFR) File,

Tab 1. The appellant has responded to the agency’s petition. PFR File, Tab 4.

The agency has filed a reply. PFR File, Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

Pursuant to Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir.

2011), and Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368,
3

1376-77 (Fed. Cir. 1999), 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 decision on the merits of a proposed charge or the penalty to be imposed.

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 to information known personally to the deciding official if

he considered it in reaching his decision without previously disclosing it to the

appellant. Id. Ward, Stone, and their progeny recognize, however, that not all

ex parte communications rise to the level of due process violations; rather, only

ex parte communications that introduce new and material information to the

deciding official are constitutionally infirm. Id.

In Stone, the U.S. Court of Appeals for the Federal Circuit identified the

following factors to be used to determine whether ex parte information is new and

material: (1) whether the ex parte communication introduces cumulative,

as opposed to new, information; (2) whether the employee knew of the

information and had an opportunity to respond; 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. Ultimately,

the Board’s inquiry in deciding whether an employee’s due process rights have

been violated 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.

In the initial decision, the administrative judge found that the agency

violated the appellant’s due process rights by considering uncharged conduct,

or “a serious threat,” in its penalty determination without providing the appellant

notice and an opportunity to respond. ID at 2-3. In weighing the Stone factors,

the administrative judge determined that the deciding official’s consideration of a

“serious threat” introduced new information, that the appellant did not know of or

have a chance to respond to such information, and that “the agency’s
4

consideration of a charge other than that set forth in the notice of proposed

removal cannot fairly be deemed cumulative or immaterial to the deciding

official’s decision.” ID at 4.

On review, the agency argues that the administrative judge erred in finding

that the deciding official violated the appellant’s due process because

the proposal notice and its attachments provided the appellant with meaningful

notice of the charges against him and the agency’s perception of the charges.

PFR File, Tab 1 at 5-6; IAF, Tab 4 at 32, 39-40, 48-69. For the following

reasons, we agree. 

Nothing in law or regulation requires that an agency affix a label to a

charge of misconduct. Otero v. U.S. Postal Service, 73 M.S.P.R. 198, 202

(1997). While an agency is required to state the reasons for a proposed adverse

action in sufficient detail to allow the employee to make an informed reply,

the charge must be viewed in light of the accompanying specifications and

circumstances, and should not be technically construed. Id. Here, the agency did

not charge the appellant with making a threat, nonetheless the proposal notice

indicated that the appellant made statements to the effect of: (1) “I guess I am

going to have to harm someone to get something done”; (2) “someone is going to

get hurt in here”; and (3) “[h]e was going to hurt someone.” IAF, Tab 4 at 39-40.

The narrative also contains dates, times, names of participants, and a detailed

description of the alleged events. Id. In addition, the alleged statements are

inherently threatening, and it was not necessary to specifically advise the

appellant that the deciding official might consider them as such. See Harding v.

U.S. Naval Academy, 567 F. App’x 920, 925-26 (Fed. Cir. 2014) (finding that the

appellant was “not deprived of due process by not being advised in advance that

the deciding official might draw [an] inference from the nature of the charged

conduct”).2 

2

 Although Harding is an unpublished decision, the Board may rely on unpublished

Federal Circuit decisions where, as here, it finds the court’s reasoning persuasive.

Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011).
5

The Board has held that a notice of proposed adverse action need not be a

self-contained document; the notice requirement is satisfied when the proposal

and any attachments to it, taken together, provide the employee with specific

notice of the charges against him so that he can make an informed and meaningful

reply. Alvarado v. Department of the Air Force, 97 M.S.P.R. 389, ¶ 15 (2004).

Consequently, we find that the deciding official’s consideration of the appellant’s

conduct as a serious threat was not new information. See Stone, 179 F.3d at

1377.

Because we find that the deciding official did not consider new

information, we disagree with the administrative judge’s determination that the

appellant did not know of that information or have an opportunity to respond to it.

ID at 4. To the contrary, for the reasons discussed above, we find that the

appellant understood the charges against him, as well as the agency’s perception

of those charges, and had an opportunity to provide a meaningful response despite

electing not to do so. Accordingly, regardless of whether the purported ex parte

information was of the type likely to result in undue pressure, the other factors do

not weigh in the appellant’s favor and do not warrant a finding that the alleged ex

parte information was so substantial and so likely to cause prejudice that no

employee could fairly be required to be subjected to a deprivation of property

under the circumstances. See Stone, 179 F.3d at 1377.

In light of the foregoing, we vacate the initial decision and remand the case

to the regional office for adjudication on the merits. On remand,

the administrative judge shall conduct any further proceedings necessary to make

findings regarding the charge, the appellant’s affirmative defense, nexus, and the

penalty, including a supplemental hearing, if appropriate. Thereafter,

the administrative judge shall issue a new initial decision.
6

ORDER

For the reasons discussed above, we remand this case to the Atlanta

Regional Office for further adjudication in accordance with this Remand Order. 

 

 

FOR THE BOARD: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.