Young v. Department of Housing & Urban Development, 706 F.3d 1372

HUD employee Rayland Young, a Public Housing Revitalization Specialist in Cleveland, contested a five-day suspension at arbitration.
An incident occurred during a break in the arbitration when Greg Darr, a HUD client, alleged Young shouted a racist threat near the hearing room; Darr reported being shaken and sought protective services.
Young was placed on administrative leave on September 3, 2010; Shawn Sweet recommended removal, citing a pattern of disruptive, insulting language and a potential threat in the arbitration context.
Ms. Wadhams, the deciding official, reviewed the proposal, interviewed multiple witnesses, and relied on content produced after Young had submitted his statements, without giving him a chance to respond to those later-interviewed materials.
Wadhams concluded Young engaged in the charged conduct, treated it as a second offense, and determined removal was appropriate, relying in part on prior misconduct to establish a pattern.
The arbitrator accepted Darr’s credibility but rejected Davis’s inconsistent statements; Young challenged the process as due process violations and improper consideration of prior misconduct.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether due process was violated by ex parte communications	Young contends ex parte interviews introduced new material information influencing the decision.	HUD argues ex parte communications merely confirmed existing record information.	Due process violated; ex parte communications introduced new material information.
Whether agency procedures were violated by reliance on ex parte information	Young argues the decision relied on information not included in the proposal notice.	HUD maintains communications were confirmatory, not new charges.	Procedural error; reliance on ex parte communications violated 5 CFR 752.404(g)(1).
Whether evidence of prior misconduct was improperly used to prove the charged conduct	Prior misconduct cannot be used to prove the charged incident unless directly relevant to honesty or pattern.	Past misconduct may be considered for penalty or credibility when related to honesty; here it supported removal.	Improper use of prior misconduct to prove the charged conduct; should not be used to establish the same conduct.
Whether the arbitrator’s and agency’s handling of the case violated due process	Due process safeguards were not preserved due to ex parte information and timing of interviews.	Post-termination proceedings and arbitrator’s findings cured or mitigated any issues.	Due process violations cannot be cured; reversal warranted.

Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368 (Fed. Cir. 1999) (due process requires notice and opportunity to respond; ex parte info must be new material)
Ward v. U.S. Postal Serv., 634 F.3d 1274 (Fed. Cir. 2011) (extensive post-termination procedures can cure some pre-termination flaws, but not all)
Blank v. Dep't of the Army, 247 F.3d 1225 (Fed. Cir. 2001) (ex parte communications may be harmless if only confirming record information)
Coleman v. Dep’t of Defense, 100 M.S.P.R. 574 (2005) (procedural baseline and notice-reply dynamics in removal actions)
Ibrahim v. Department of the Army, 30 M.S.P.R. 531 (1986) (limitation on using character evidence to prove the charged conduct)
Yanopoulos v. Dep’t of Navy, 796 F.2d 468 (Fed. Cir. 1986) (F.R.E. guidance on hearing practices; non-evidentiary use of past acts)
Krentz v. Robertson Fire Prot. Dist., 228 F.3d 897 (8th Cir. 2000) (post-termination procedures can cure pre-termination defects in some circuits)
Schacht v. Wisconsin Dep’t of Corrections, 175 F.3d 497 (7th Cir. 1999) (post-termination remedies and due process considerations in personnel actions)
Sullivan v. Dep’t of the Navy, 720 F.2d 1266 (Fed. Cir. 1983) (historic due process precedents informing agency removal procedures)