       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                   TERRY D. DOE,
                     Petitioner,
                           v.
       UNITED STATES POSTAL SERVICE,
                 Respondent.
              __________________________

                      2011-3162
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. PH0752100292-I-1.
               __________________________

                Decided: June 20, 2012
              __________________________

    DEVIN MCLAUGHLIN, Langrock Sperry & Wool, of Mid-
dlebury, Vermont, argued for petitioner.

   ANUJ VOHRA, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and PATRICIA M.
MCCARTHY, Assistant Director.
               __________________________
DOE   v. USPS                                            2


 Before NEWMAN, CLEVENGER, and LINN, Circuit Judges.
CLEVENGER, Circuit Judge.
    The petitioner, Terry D. Doe, appeals the final order
of the Merit Systems Protection Board (“Board”) sustain-
ing his removal. Doe v. United States Postal Service, No.
PH-0752-10-0292-I-1, slip op. (M.S.P.B. Apr. 28, 2011)
(“Final Decision (Apr. 28, 2011)”). Because we agree that
there were procedural errors in the administrative proc-
ess, we vacate and remand for further proceedings consis-
tent with this opinion.
                             I
     Doe was a twenty-four-year employee of the United
States Postal Service. He was employed by the Postal
Service as a full-time letter carrier at the Essex Junction
Post Office in Essex Junction, Vermont, until his termina-
tion on March 14, 2010. Doe’s termination resulted from
an incident that took place on November 21, 2009, in the
office of his then-supervisor, Jamie Good, arising from a
dispute about Doe’s uniform. During the dispute, Good
alleges that Doe struck him in the face, which Doe denies.
    On November 21, 2009, Doe arrived for work at the
Post Office and asked that he be allowed to wear a pair of
non-regulation white shoes while he was in the office.
Good denied that request and stated that Doe was re-
quired to wear black shoes while on duty in accordance
with the Postal Service’s uniform policy. Mark Hickory,
the union steward, joined the conversation and urged
Good to allow use of the white sneakers. Good again
denied the request, directed Doe and Hickory to punch in
and check their vehicles, and told Doe that he needed to
be in proper footwear to start the work day.
    A few minutes later, Doe came back in from checking
his vehicle and was still wearing the white sneakers.
3                                               DOE   v. USPS


Good asked Doe to come into his office so that they could
discuss the matter further. Doe asked that Hickory be
allowed to accompany him, which Good allowed. Once in
Good’s office, Good explained that Doe had failed to follow
instructions by not wearing proper footwear.
    At this point, according to Good, Doe approached Good
and pointed his finger in Good’s face; Good attempted to
leave his office, and as he was walking out the door, he
was either pushed or bumped by Doe. Then, Good alleg-
edly turned around and asked Doe what he was doing, at
which time Doe allegedly punched him at the top of his
face. As a result of this alleged punch, Good fell to the
floor. Doe denies this version of events. He says that he
never punched Good and that Good purposefully took a
dive to set Doe up for punishment. Doe contends that
Good was motivated to lie because of Doe’s close relation-
ship with the union, which had filed a disproportionately
large number of grievances while Good was supervisor at
the Essex Junction Post Office. Doe also states that he
tried to help Good up from the floor.
    Good notified his supervisor about the incident, and
the Postal Service initiated an investigation that was
conducted by Postal Inspector Patricia Quarato. Quarato
either interviewed or obtained written statements from
Doe, Good, Hickory, and other employees who were pre-
sent at the Essex Junction post office and witnessed the
incident. Good attested that he had been punched in the
face, which both Doe and Hickory denied. Other Postal
Service employees stated that they had either seen Doe
attempt to punch Good or believed that Doe had punched
Good; however, these statements were either recanted or
were arguably inconsistent with Good’s version of events.
    On January 27, 2012, the Postal Service issued Doe a
notice of proposed removal, which was based upon a
DOE   v. USPS                                              4


single charge of “improper conduct” arising from Doe’s
alleged assault of Good. The notice gave Doe and/or his
representative the right to “answer this proposal within
10 days from your receipt of this letter, either in person or
in writing or both, to Ricky Burleson, Postmaster, Essex
Junction, 22 Essex Way, Essex Junction, VT 05452-9998,
(802) 878-3085.” After expiration of the ten-day period,
the Postmaster would issue a final written decision as to
Doe’s discipline.
    On February 17, 2010, the Postal Service issued its
decision letter, signed by Burleson, notifying Doe that he
was being removed from his position at the Postal Service
based upon the charge outlined in the notice of proposed
removal. However, the Postal Service did not consider a
letter dated February 7, 2010, in which the president of
the local union branch provided a response for Doe, be-
cause that response was not received within ten days and
thus Burleson considered it untimely.
     Doe timely appealed his removal to the Board. On
July 30, 2010, an administrative judge issued a decision
affirming the Postal Service’s removal of Doe. Doe v.
United States Postal Service, No. PH-0752-10-0292-I-1,
slip op. (M.S.P.B. July 30, 2010). Doe petitioned for
review by the full Board, urging inter alia that his Febru-
ary 7 response was timely mailed and that Burleson erred
in failing to consider it. The Board denied Doe’s petition.
Final Decision (Apr. 28, 2011). Doe filed a timely notice of
appeal to this court.
    We have jurisdiction over appeals from final decisions
of the Board. 28 U.S.C. § 1295(a)(4). Our task is to
determine whether the Board’s decision was arbitrary,
capricious, an abuse of discretion, not in accordance with
the law, or unsupported by substantial evidence. 5 U.S.C.
§ 7703(c); Sandel v. Office of Pers. Mgmt., 28 F.3d 1184,
5                                               DOE   v. USPS


1186 (Fed. Cir. 1994). If not, then we must affirm the
final ruling of the Board.
                            II
    On appeal, Doe argues that the Board’s finding that
he punched Good is not supported by substantial evi-
dence. Doe also argues that two procedural errors were
committed during the removal process: (1) that Burleson’s
refusal to consider his response to the notice of proposed
removal violated his due process rights or, at a minimum,
constituted harmful procedural error, and (2) that Burle-
son’s consideration of a prior disciplinary incident which
was not referenced in the notice of proposed removal
when determining his penalty was harmful procedural
error.
                            A
    We first address Doe’s first procedural error argu-
ment. We agree that the Board erred in failing to analyze
whether Burleson’s failure to consider Doe’s February 7
letter rises to the level of a constitutional violation. As
noted above, Burleson refused to consider Doe’s response
to the notice of proposed removal on the ground that the
response was not timely filed. Although the response was
indeed received more than ten days after Doe’s receipt of
the notice of proposed removal, it was posted in the mails
within the ten-day period. Thus, the question arises
whether timely deposit in the mails satisfies the stipu-
lated ten-day response time. Doe argues that he satisfied
the ten-day period; the Postal Service argues that physi-
cal receipt of the response must have occurred within the
ten-day period.
    The dispute between the parties on this point is re-
solved by interpretation of the language used by the
Postal Service in affording Doe his right to respond, as
DOE   v. USPS                                            6


quoted above. Had Doe exercised his right to appear in
person and make his response in that fashion, we read the
Postal Service’s instructions as mandating that Doe make
his appearance within the ten-day period. However, the
instructions also afforded Doe the right to make his
response in writing, directing the precise mail address to
which the response should be sent. By clearly informing
Doe that he could use the mails to make his response, we
interpret the instructions to mean that if Doe chose to use
the mails to make his response, the ten-day period would
be measured from the date Doe deposited his response in
the mails. Under this interpretation, Doe’s response was
timely, and Burleson erred in failing to consider it. The
Board did not consider the ramifications of Burleson’s
error because it incorrectly accepted the Postal Service’s
argument that the timeliness of the response could only
be measured by the date of physical receipt of the re-
sponse by the Postal Service.
    We have previously recognized that subject to certain
restrictions, civil service employees have a property right
in their continued employment. See Stone v. F.D.I.C., 179
F.3d 1368, 1375 (Fed. Cir. 1999) (citing King v. Alston, 75
F.3d 657, 661 (Fed. Cir. 1996)). The government does not
dispute that Doe has a property right in his continued
employment. The Supreme Court has stated that a
“tenured employee is entitled to oral or written notice of
the charges against him, an explanation of the employer’s
evidence, and an opportunity to present his side of the
story.” Cleveland Bd. of Educ. V. Loudermill, 470 U.S.
532, 546 (1985). Also, “the Supreme Court expressly
noted that the need for a meaningful opportunity for the
public employee to present his or her side of the case is
important in enabling the agency to reach an accurate
result.” Stone, 179 F.3d at 1376 (citing Loudermill, 470
U.S. at 543). However, Stone also states that not every
7                                                 DOE   v. USPS


procedural error is “a procedural defect so substantial and
so likely to cause prejudice that it undermines the due
process guarantee.” 179 F.3d at 1376-77. In this case, the
Board erred in failing to analyze whether Burleson’s
failure to consider the February 7 letter constituted a
constitutional violation or a procedural error.
    Even if the Board, on remand, finds that failure to
consider the February 7 letter did not rise to the level of a
constitutional violation, then the Board still must decide
whether the procedural violation was harmless. This is
because under 5 U.S.C. § 7701(c)(2)(A), the Board may not
sustain an agency decision if the employee “shows harm-
ful error in the application of the agency’s procedures in
arriving at such decision.” The Board’s regulations define
“harmful error” as an “[e]rror by the agency in the appli-
cation of its procedures that is likely to have caused the
agency to reach a conclusion different from the one it
would have reached in the absence or cure of the error.” 5
C.F.R. § 1201.56(b)(1). The focus of the harmful error
analysis is “the agency and whether the agency is likely to
have reached a different conclusion in the absence of
procedural error. Ward v. U.S. Postal Serv., 634 F.3d
1274, 1282 (Fed. Cir. 2011) (emphasis omitted).
     As a result, on remand, if the Board determines that
Burleson’s failure to consider the February 7 letter did
not constitute a constitutional violation, the Board must
still consider whether the procedural error constituted
harmful error. If there is an indication that Burleson’s
consideration of the February 7 letter would have
changed his decision, the matter must be remanded to the
Postal Service for consideration.
    Although we express no view as to whether Burleson’s
refusal to consider Doe’s February 7 letter rises to the
level of a constitutional violation or if not, whether failure
DOE   v. USPS                                             8


to consider the letter constituted harmful procedural
error, we do note that the information Doe tried to convey
went to the question of whether he committed the charged
act. Also, we note that Burleson admitted that the con-
tents of the February 7 letter, which indicated that Doe
was a trained boxer, might necessitate further inquiry.
                             B
    We now turn to Doe’s argument that substantial evi-
dence does not support the Board’s conclusion that he in
fact struck Good. Doe maintains, inter alia, that he could
not have struck Good because had he done so, Good would
have been prominently marked as a result of the blow
since Doe is a trained boxer. Burleson admitted the fact
that Doe’s training, which was contained in the response
Burleson rejected out of hand, might have necessitated
further inquiry. Unless the Board on remand concludes
that the refusal to accept Doe’s response is neither consti-
tutional nor procedural error, there is the possibility that
substantial evidence would not support the Board’s con-
clusion that Doe struck Good. For that reason, we vacate
the Board’s conclusion that Doe struck Good. If on re-
mand the Board determines that Doe’s constitutional
and/or procedural rights have not been violated, then the
Board may reinstate its conclusion that Doe in fact struck
Good.
                             C
    Doe’s second procedural error argument goes to the
question of whether the penalty, i.e., his removal, is
procedurally infected because the deciding official consid-
ered a previous disciplinary action against Doe that was
not referenced in the notice of proposed removal. This
argument assumes that on remand the Board sustains its
conclusion that Doe indeed struck Good, thus exposing
Doe to some penalty. We agree that Burleson should not
9                                                DOE   v. USPS


have considered the prior disciplinary incident which was
not referenced in the notice of proposed removal. The
regulation governing agency procedure for removal of
qualified employees, 5 C.F.R. § 752.404(g), provides that
“[i]n arriving at its decision, the agency will consider only
the reasons specified in the notice of proposed action.” As
such, it is procedural error for “an agency to rely on
matters affecting the penalty it imposes without including
those matters in the proposal notice.” Coleman v. Dep’t of
Def., 100 M.S.P.R. 574, 579 (2005). By failing to conduct a
harmful error analysis, the Board has failed to comply
with this court’s decision in Ward, which requires the
Board to analyze whether the information not contained
in the notice of proposed of removal but later used in the
agency’s decision-making was “new and material.” 634
F.3d at 1279. On remand, the Board must determine
whether the procedural error requires upsetting the
penalty of removal using the standard set forth in Ward.
                             III
    For the reasons discussed above, the decision of the
Board is vacated and remanded for further proceedings
consistent with this opinion.
                VACATED AND REMANDED
                           COSTS
    No costs.
