                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2007-3012



                                 PATRICIA J. KELLY,

                                                            Petitioner,

                                          v.


                         DEPARTMENT OF AGRICULTURE,

                                                            Respondent.




      Patricia J. Kelly, of Eagan, Minnesota, pro se.

       Steven J. Abelson, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Todd M. Hughes, Assistant Director.

Appealed From: United States Merit Systems Protection Board
                   NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                   2007-3012

                              PATRICIA J. KELLY,

                                                      Petitioner,

                                        v.

                       DEPARTMENT OF AGRICULTURE

                                                      Respondent.

                        ___________________________

                           DECIDED: March 12, 2007
                        ___________________________

Before RADER, Circuit Judge, ARCHER, Senior Circuit Judge, and GAJARSA,
Circuit Judge.

RADER, Circuit Judge.

      The Merit Systems Protection Board (the Board) affirmed the Department

of Agriculture's (Agency's) decision to remove Patricia J. Kelly from her position

as a Resource Management Specialist with the Agency's Food Safety and

Inspection Service (FSIS) office. See Kelly v. Dep't of Agric., CH-0752-05-0040-

I-1 (M.S.P.B. August 15, 2006) (Final Order), affirming Kelly v. Dep't of Agric.,

CH-0752-05-0040-I-1 (M.S.P.B. April 5, 2006) (Initial Decision). For the reasons

set forth below, this court vacates the decision of the Board and remands for

further proceedings.
                                         I

       At the time of her removal, Ms. Kelly had been employed with the Agency

for seven years. Ms. Kelly worked a "5-4-9" schedule. Under this biweekly

schedule, Ms. Kelly's first week consisted of five nine-hour days while the second

week consisted of three nine-hour days, one eight-hour day and Friday off.

Additionally, Ms. Kelly was authorized to take a "midday band" — time off in the

middle of the workday for other activities. Midday band time had to be made up

later in the day.

       Ms. Kelly and Dr. Nathaniel Clark, District Manager of the Minneapolis

district office, both attended a noon "spinning" class at a gym near the office.

Fellow employees expressed concern that the midday absences of Ms. Kelly and

Dr. Clark interfered with operation of the office. In 2004, the Agency investigated

Ms. Kelly and Dr. Clark.       As a result of the investigation, the Agency

recommended removing Ms. Kelly based on one charge of improper conduct

supported by 11 specifications. The deciding official, Ms. Sandra Bain, sustained

specifications 1-7 and 10-11 and determined to remove Ms. Kelly.

       On appeal to the Board, the Administrative Judge vacated specifications

2-7 and 10 but sustained specifications 1 and 11. Specifications 2-7 concerned

Ms. Kelly's alleged failure to make up time on specific dates. Specifically, the

parties dispute at what time Ms. Kelly returned to the office from the spinning

class. The parties agree Ms. Kelly left the office to go to spinning class at 11:30

AM. The agency argues Ms. Kelly returned to the office at 2:00 PM, requiring

Ms. Kelly to make up 2.5 hours. Ms. Kelly maintains she returned to the office at



2007-3012                               2
1:30 PM, requiring her to make up 2.0 hours. Specification 10 concerned four

allegedly improper claims for overtime.

         Regarding specifications 2-7, the Administrative Judge reviewed the

testimony of the Agency's witnesses and found a lack of specificity and

conflicting testimony about the dates in question. Further, Ms. Kelly provided

documentary evidence, emails with timestamps after she allegedly left the office,

refuting many of the claims. On specification 10, the Administrative Judge again

found that the Agency did not provide sufficient specificity to support the charges.

         Specification 1 alleges Ms. Kelly's statements "I return to office around

1:30 pm" and "I always make up time," given under oath, were false.             The

Administrative Judge found that the Agency provided enough credible evidence

to show that Ms. Kelly often returned to the office around 2:00 PM.             The

Administrative Judge also found it inherently improbable that Ms. Kelly attended

a 45-minute spin class, lifted weights, showered, and got back to the office by

1:30 PM.

         Specification 11 alleges Ms. Kelly improperly used her government

computer for personal use. Specifically, Ms. Kelly allegedly shared jokes and

watched "Oprah" on her computer. Indeed, a search of Ms. Kelly's computer

disclosed software supporting television viewing on the computer and several

jokes.

         Three weeks before Ms. Bain issued the Agency's decision, Dr. Clark sent

Ms. Bain an email opposing the proposed removal.           In the email, Dr. Clark

provided an extensive character reference and further suggested Dr. Craig White



2007-3012                                 3
(the program deputy district manager) and Doctor Jeffrey Legg (Compliance

Deputy District Manager of the Minneapolis district office) could also attest that

Ms. Kelly is an honest employee. Ms. Bain contacted Dr. White and Dr. Legg.

Both doctors provided negative comments. Ms. Kelly, however, was not notified

of their comments until receiving the decision letter.

                                              II

         This court must affirm any agency action, findings, or conclusions unless:

(1) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance

with the law; (2) obtained without procedure required by law, rule, or regulation

having     been   followed;   or   (3)   unsupported     by   substantial   evidence.

5 U.S.C. § 7703(c) (2006); Hayes v. Dep't of Navy, 727 F.2d 1535, 1537 (Fed.

Cir. 1984). However, the introduction of new and material information by means

of ex parte communications to the deciding official undermines the public

employee's constitutional due process guarantee of notice. Stone v. F.D.I.C.,

179 F.3d 1368, 1376 (Fed. Cir. 1999).

         The Board dismissed Ms. Bain's ex parte communications with Drs. White

and Legg as harmless, stating "the key determination whether a violation of the

appellant's due process rights occurred is whether the challenged ex parte

communication improperly determined the outcome of the disciplinary decision."

In support of this proposition, the Board cited Blake v Dep't of Justice, 81

M.S.P.R. 394 (1999) and Sullivan v. Dep't of the Navy, 720 F.2d 1266 (Fed. Cir.

1983). The Board further noted Ms. Bain testified that she was the deciding

official and that no one in the Minneapolis District Office tried to influence her



2007-3012                                 4
decision. The Board also noted Ms. Bain testified in determining Ms. Kelly's

credibility. Ms. Bain noted that she relied on the statements in the investigation

and not the conversation with Dr. White.

       As this court has previously explained, ex parte communications rising to

the level of a procedural due process violation cannot be excused as harmless

error. Stone, 179 F.3d at 1377. An adversary's ex parte communications to a

deciding official render that official's claims of a lack of influence unavailing. See

Camero v. United States, 375 F.2d 777, 780 (Ct. Cl. 1967) ("After listening to and

discussing with each attorney his views on the case, Wolverton stated that he

formed his own opinion. . . . We have no doubt that Wolverton formed his own

opinion on what recommendations he should make to General Anderson, just as

we have no doubt that General Anderson made up his own mind when he

decided to sustain plaintiff's removal.       The problem is, however, that both

decisions were made, at least in part, on the basis of the ex parte communication

. . ."); Stone, 179 F.3d at 1372 (finding a due process violation even though "[i]n

an affidavit, the deciding official stated that he would have concluded that Mr.

Stone should be removed whether or not he had seen the ex parte memo from

the proposing official").

       Further, the Board's reliance on Blake and Sullivan is misplaced. The

communication in Blake concerned an alleged threat from a congressman

communicated to the deciding official from a Department of Justice attorney.

Blake, 81 M.S.P.R. at 413.        The ex parte communication was discounted

because the evidence of record suggested the threat was not credible and the



2007-3012                                 5
deciding official knew the threat was not credible. Id. at 414. Indeed, the Board

further noted, "it is plain that such evidence of an ex parte communication from a

non-disinterested adversary, had it been presented and found credible, could

indeed have so tainted the disciplinary decision process that the appellant's due

process rights would have been irretrievably compromised." Id.

       In Sullivan, the petitioner's commanding officer sent a letter to the deciding

official recommending the petitioner's removal without sending a copy to the

petitioner.   Sullivan, 720 F.2d at 1270.    The commanding officer also made

several follow up phone calls urging a quick decision. Id. This court held the

commander's communications were improperly ex parte.            Id. at 1274 (noting

"where a serious procedural curtailment mars an adverse personnel action which

deprives the employee of pay, the court has regularly taken the position that the

defect divests the removal (or demotion) of legality, leaving the employee on the

rolls of the employing agency and entitled to his pay until proper procedural steps

are taken toward removing or disciplining him.") (citations omitted).

       In summary, Ms. Bain contacted Drs. White and Legg (knowing the

doctors had already taken a position adverse to Ms. Kelly in the record) and

received further negative comments. At that point, Ms. Bain had a duty to notify

Ms. Kelly and provide her an opportunity to respond before reaching a decision.

Ms. Kelly’s opportunity to address Drs. White's and Legg's comments before the

Board after the Agency's decision was final and on appeal does not render the

error harmless.    Sullivan, 720 F.2d at 1273 (holding that the opportunity to

defend against an ex parte communication on appeal does not render the error



2007-3012                                6
harmless because the error is committed when the ex parte statements are made

to the first deciding official who could decide the case in favor of the employee).

This procedural defect overrides the Agency’s contention that Ms. Kelly would

likely have been removed on the merits of the charge without this procedural

defect. Ryder v. United States, 585 F.2d 482, 487 (Ct. Cl. 1978). [Init. 27]

        In upholding Ms. Bain's removal, the Administrative Judge found the

penalty reasonable based on the sustained charges of a false statement and

computer misuse. On remand, the Board will have an opportunity to review the

considerable dispute in the record about computer policy in the Minneapolis

district office, including many admissions of personal uses of government

computers in the Minneapolis district office, including from both Drs. White and

Legg.    The Board may also review the record showing that others watched

television in the office. The Board will also have an opportunity to reexamine the

time card data showing that on seven of the twelve dates in question the alleged

time claimed and not worked was less than ten minutes, including an allegation

of three minutes. Altogether ten of the twelve dates allege shortfalls of sixteen

minutes or less. On remand, the Board may consider whether this record fully

supports a finding of intentional falsity in Ms. Kelly's statement that “I always

make up time.”

        For the foregoing reasons, this court vacates the Board's decision and

remands the case for proceedings consistent with this opinion.

                          VACATED AND REMANDED.




2007-3012                                7
