Ward v. United States Postal Service
2011 U.S. App. LEXIS 3199
| Fed. Cir. | 2011Background
- Ward, a preference-eligible Maintenance Mechanic, was involved in an August 19, 2008 incident with a supervisor, including shouting and disobeying instructions.
- The Agency issued a Notice of Proposed Removal on August 29, 2008 citing only the August 19 incident as the grounds for removal.
- The Deciding Official testified that prior instances of misconduct, discussed in ex parte communications with other Agency personnel, influenced his penalty decision.
- Ward appealed; the administrative judge allowed testimony about past misconduct, denying Ward an opportunity to respond to those prior incidents.
- The Board granted review as to penalty but affirmed removal, finding error in considering extraneous prior misconduct but not its due process impact.
- The Federal Circuit vacated and remanded to address whether ex parte communications violated due process and whether the procedural error was harmless, requiring further Board analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did ex parte communications violate due process? | Ward argues ex parte communications introduced new information affecting penalty. | Agency contends ex parte communications did not prejudice Ward or relate to the charge. | Remand for Stone-based due process analysis required. |
| Was considering unlisted prior misconduct a procedural error? | Ward asserts past incidents not in the Notice of Proposed Removal cannot be used for penalty. | Agency argues permissible consideration as nondisciplinary counselings to enhance penalty. | Procedural error; remand to assess harm. |
| Was the Board's attempt at harmless-error review proper? | Board improperly used its own penalty analysis to bypass harmless-error review. | Board could review penalty within reasonable bounds after procedural error. | Board erred; must perform proper harmless-error analysis on remand. |
Key Cases Cited
- Stone v. FDIC, 179 F.3d 1368 (Fed. Cir. 1999) (ex parte communications violative of due process when new material information is introduced)
- Blank v. Dep't of the Army, 247 F.3d 1225 (Fed. Cir. 2001) (ex parte considerations and prejudice assessment in due process)
- Diaz v. Dep't of the Air Force, 63 F.3d 1107 (Fed. Cir. 1995) (harmful error framework for procedural violations)
- Shaw v. U.S. Postal Serv., 697 F.2d 1078 (Fed. Cir. 1983) (harmful-error standard and due-process safeguards in agency procedures)
- Chambers v. Dep't of the Interior, 602 F.3d 1370 (Fed. Cir. 2010) (remand when agency procedure potentially alters penalty determination)
- Coleman v. Dep't of Def., 100 M.S.P.R. 574 (MSPB 2005) (harmful-error and notice requirements in removal proceedings)
- Lachance v. Merit Systems Protection Board, 147 F.3d 1367 (Fed. Cir. 1998) (penalty analysis limitations by the Board under Lachance framework)
- Turner v. U.S. Postal Serv., 85 M.S.P.R. 565 (MSPB 2000) (Douglas-factor-based penalty assessments and removal statutes)