Eric T Bryant v. Department of Veterans Affairs, 2024 MSPB 16

Eric Terrell Bryant, a police officer at the Department of Veterans Affairs (VA), was removed in 2020 for conduct unbecoming a federal employee after an incident with local police.
Initial removal was under the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (38 U.S.C. § 714), without a Douglas factors analysis.
Bryant challenged the removal before the Merit Systems Protection Board (MSPB), asserting, among other things, due process violations, but the initial judge upheld removal, citing a lack of Board authority to mitigate the penalty.
On appeal, the U.S. Court of Appeals for the Federal Circuit vacated the Board's decision, finding failure to apply the correct burden of proof and the Douglas factors, and remanded for further proceedings.
On remand, the agency provided a new penalty analysis (including Douglas factors) but failed to give Bryant an opportunity to respond to new aggravating factors before the final removal decision.
The MSPB reversed the removal, finding that Bryant’s procedural due process rights were violated by the agency’s failure to provide prior notice and a meaningful opportunity to respond to new evidence used in the penalty decision.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Bryant afforded due process in his removal?	Bryant argues he was denied due process because he was not given notice or a chance to respond to new aggravating factors in the penalty analysis.	VA contends no new evidence was considered—just a proper Douglas analysis as required by the court.	No, due process was violated because Bryant was not given notice and opportunity to respond to new information.
Should the new removal decision be sustained?	Bryant argues the agency’s process and penalty were fundamentally unfair and unsupported.	VA asserts it followed the court's remand instructions faithfully, including Douglas analysis.	No, the Board does not sustain the removal due to due process violation.
Must the agency restore Bryant and provide back pay?	Bryant seeks reinstatement and full relief as a result of improper removal.	VA does not contest relief once removal is overturned on procedural grounds.	Yes, the agency must reinstate Bryant with back pay and benefits.
Does the DVA Accountability Act override constitutional due process?	Bryant contends due process protections still apply under 38 U.S.C. § 714.	VA maintains it acted lawfully under the statute, but does not address due process in detail.	No, constitutional due process must be honored even under the DVA Accountability Act.

Douglas v. Veterans Admin., 5 M.S.P.R. 280 (M.S.P.B. 1981) (sets forth factors for determining appropriateness of penalty in federal employment cases)
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (U.S. 1985) (employee entitled to notice and opportunity to respond before termination)
Stone v. F.D.I.C., 179 F.3d 1368 (Fed. Cir. 1999) (ex parte communications can violate due process in federal employment)
Ward v. U.S. Postal Serv., 634 F.3d 1274 (Fed. Cir. 2011) (employee's due process rights violated by reliance on new, material ex parte information)
Blank v. Dep’t of the Army, 247 F.3d 1225 (Fed. Cir. 2001) (consideration of only cumulative information does not violate due process)
Young v. Dep’t of Hous. & Urban Dev., 706 F.3d 1372 (Fed. Cir. 2013) (procedural fairness required at each stage of removal proceedings)