United States Court of Appeals
for the Federal Circuit
__________________________
THOMAS O. WARD,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
2010-3021
__________________________
Petition for review of the Merit Systems Protection
Board in case no. PH0752090126-I-1.
__________________________
Decided: February 17, 2011
__________________________
MATTHEW J. DOWD, Wiley Rein LLP, of Washington,
DC, argued for petitioner. With him on the brief was
ROBERT J. SCHEFFEL. Of counsel on the brief was JOSEPH
CHESTER, Caplan & Chester, of Pittsburgh, Pennsylvania.
MATTHEW H. SOLOMSON, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent. With him on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
KENNETH M. DINTZER, Assistant Director. Of counsel was
WARD v. USPS 2
MICHAEL J. ELSTON, Appellate Counsel, Office of the
General Counsel, United States Postal Service, of Wash-
ington, DC.
__________________________
Before RADER, Chief Judge, DYK and PROST, Circuit
Judges.
PROST, Circuit Judge.
Petitioner Thomas O. Ward (“Ward”) petitions for re-
view of the final decision of the Merit Systems Protection
Board (“Board”) affirming the U.S. Postal Service’s
(“Agency’s”) decision to remove him from employment.
Ward v. U.S. Postal Serv., No. PH0752090126-I-1
(M.S.P.B. Aug. 31, 2009) (“Final Decision”). The Board
recognized that the deciding official improperly consid-
ered Ward’s alleged past instances of misconduct, which
were conveyed to the deciding official through ex parte
communications and were not included in Ward’s Notice
of Proposed Removal. The Board, however, erred in
failing to consider whether this procedural error was
harmful and in failing to address the due process issues
arising out of the ex parte communications. Accordingly,
we vacate and remand for further proceedings consistent
with this opinion.
BACKGROUND
On August 19, 2008, Ward, a preference eligible
Maintenance Mechanic for the Agency, was involved in an
incident with a supervisor in which he shouted at her,
acted in a manner that she perceived as threatening, and
disobeyed her instructions to remain in her office (“Au-
gust 19, 2008 Incident”). On August 29, 2008, the Agency
issued a Notice of Proposed Removal, which proposed
3 WARD v. USPS
Ward’s removal from employment with the Agency based
on a single charge of improper conduct arising out of the
August 19, 2008 Incident. The Notice of Proposed Re-
moval mentioned only the August 19, 2008 Incident as
grounds for Ward’s removal; it did not reference any other
misconduct by Ward.
On November 5, 2008, Dan O’Hara, the deciding offi-
cial (“Deciding Official”), issued a Letter of Decision,
finding that the improper conduct charge was fully sup-
ported by the evidence and that removal was warranted
in light of the relevant Douglas factors. Douglas v. Veter-
ans Admin., 5 M.S.P.B. 313 (1981) (discussing factors that
supervisors must consider in determining an appropriate
penalty to impose for an act of employee misconduct).
Ward’s removal from the Agency was effective November
7, 2008.
On December 5, 2008, Ward appealed the Deciding
Official’s decision to the Board. At a hearing before the
administrative judge on February 10, 2009, the Deciding
Official testified that before making his decision, he not
only reviewed the Agency’s investigative documents
regarding the August 19, 2008 Incident but also spoke
with three supervisors and one manager who discussed
prior incidents in which Ward exhibited “loud, belligerent,
[and] intimidating behavior.” J.A. 138-39; see J.A. 135;
J.A. 145-46. The Deciding Official admitted that Ward’s
“recurring pattern of behavior” affected his analysis of
two Douglas factors, lowering the Deciding Official’s
confidence in Ward’s ability to satisfactorily perform his
duties and convincing the Deciding Official that Ward
showed no potential for rehabilitation. J.A. 137; J.A. 140.
Specifically, the Deciding Official testified that “after
speaking with [the supervisor involved in the August 19,
2008 Incident] and speaking with the other people as to
WARD v. USPS 4
the pattern of conduct that [he had] heard over the years,”
he had little confidence that Ward could perform at a
satisfactory level. J.A. 137. Further, in response to a
question regarding Ward’s potential for rehabilitation, the
Deciding Official testified, “[W]ith the pattern, the recur-
ring pattern of behavior that [he] discovered in . . .
[Ward’s] work record, [he] just didn’t see how . . . any kind
of letter, warning, or suspension was going to mitigate
any of that.” J.A. 140. Ward’s counsel objected to the
Deciding Official’s testimony regarding Ward’s past
misconduct on the grounds that Ward “wasn’t given any
opportunity to explain anything about any prior conduct”
before his removal. J.A. 137-38. The administrative
judge, however, allowed the testimony, finding it relevant
to the Deciding Official’s penalty determination. J.A. 137-
38.
On March 16, 2009, the administrative judge issued
an initial decision that sustained the improper conduct
charge and affirmed the Agency’s removal of Ward. The
administrative judge found that the Deciding Official
properly considered Ward’s alleged past instances of
misconduct because they “are precisely the types of non-
disciplinary counselings a deciding official may use to
enhance a penalty.” J.A. 27. The administrative judge
further determined that the discussions were not im-
proper ex parte communications because they were not “of
the type that resulted in undue pressure upon [the Decid-
ing Official] to rule in a particular manner.” J.A. 27.
Ward petitioned the Board for review of the adminis-
trative judge’s initial decision, arguing that the Agency
failed to prove the improper conduct charge and that the
penalty of removal was erroneous because, inter alia, the
Deciding Official improperly considered alleged past
misconduct that was not included in the Notice of Pro-
5 WARD v. USPS
posed Removal. Final Decision at 3-4. On August 31,
2009, the Board issued a final decision, which granted
Ward’s petition for review as to the Agency’s penalty
determination yet upheld the imposed penalty of removal.
Id. at 1, 3, 10. The Board found that the administrative
judge, in analyzing the Deciding Official’s consideration of
Ward’s alleged past misconduct, erred in two respects. Id.
at 5. First, the Board concluded that the administrative
judge erred in finding that the Deciding Official was
entitled to consider Ward’s alleged past misconduct in the
penalty analysis. Id. The Board found that consideration
of the alleged prior incidents as aggravating factors
favoring an enhanced penalty was improper because the
incidents were not included in the Notice of Proposed
Removal and were instead mentioned for the first time
during Ward’s appeal to the Board. Id. Second, the
Board determined that the administrative judge erred in
analyzing whether the Deciding Official’s discussions
regarding this alleged prior misconduct constituted im-
proper ex parte communications. Id. The Board reasoned
that “[w]here an ex parte communication does not relate
to the charge itself, but relates instead to the penalty, the
Board has not considered such error to be [a] denial of due
process of law . . . .” Id. at 5-6. The Board explained that,
in these circumstances, it would “remedy the error by
doing its own analysis of the penalty factors” to determine
whether “removal is within the bounds of reasonableness,
considering the pertinent factors other than [Ward’s] past
work record.” Id. at 6. Upon independently reviewing the
Douglas factors, the Board concluded that the penalty of
removal “does not exceed the tolerable limits of reason-
ableness.” Id. at 6-10. Therefore, despite finding that the
Deciding Official erroneously considered Ward’s alleged
prior misconduct and that the administrative judge erred
in her penalty analysis, the Board sustained Ward’s
removal from the Agency. Id. at 4-10.
WARD v. USPS 6
Ward timely petitioned for review of the Board’s final
decision in this court. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
“Our review of Board decisions is limited. We may
only reverse a Board decision if we find the decision to be
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; obtained without procedures
required by law; or unsupported by substantial evidence.”
Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir.
2010) (citing 5 U.S.C. § 7703(c)). We “must reverse a
decision of the Board if it . . . is not in accordance with the
requirements of the Due Process Clause of the Fifth
Amendment or any other constitutional provision.” Blank
v. Dep’t of the Army, 247 F.3d 1225, 1228 (Fed. Cir. 2001).
The removal proceedings in this case present serious
due process concerns and a violation of Agency procedure,
both of which the Board erred in addressing. Ward’s
Notice of Proposed Removal proposed his removal from
the Agency based solely on his conduct during the August
19, 2008 Incident. The Deciding Official, however, pro-
ceeded to have ex parte communications with three
supervisors and one manager from the Agency during
which he learned of several alleged past instances of
misconduct by Ward. Although these prior incidents were
not referenced in Ward’s Notice of Proposed Removal,
leaving Ward entirely unaware that such incidents would
be considered as grounds for his removal, the Deciding
Official later admitted, in his testimony before the admin-
istrative judge, that these incidents had influenced his
decision that removal was warranted. Specifically, the
Deciding Official testified that Ward’s “recurring pattern”
of misconduct impacted his analysis of at least two Doug-
7 WARD v. USPS
las factors, as it gave the Deciding Official little confi-
dence in Ward’s ability to satisfactorily perform his duties
and convinced the Deciding Official that Ward showed no
potential for rehabilitation. J.A. 137; J.A. 140.
At worst, the Deciding Official’s ex parte communica-
tions violated Ward’s due process rights, automatically
entitling him to a new removal proceeding free from any
violation of his constitutional rights. The Board, however,
erred in failing to analyze the due process issues pre-
sented in this case. At a minimum, the Deciding Official’s
consideration of alleged past misconduct that was not
included in the Notice of Proposed Removal violated
Agency procedure, requiring a harmless error analysis.
The Board properly recognized this procedural error. Yet
the Board erred in concluding that it could “remedy the
error” by performing its own penalty analysis in which it
considered whether, in its view, the removal penalty was
“within the tolerable limits of reasonableness.” Final
Decision at 6, 10. We address the due process issues and
the procedural error in turn. 1
1 At oral argument, the government repeatedly ar-
gued that Ward did not raise the issue of the Agency’s
improper consideration of Ward’s alleged past miscon-
duct. Oral Arg. at 14:10-23, 16:25-59, 18:17-22, 29:35-
30:01, 30:31-42, available at
http://oralarguments.cafc.uscourts.gov/Audiomp3/2010-
3021.MP3. It is true that Ward did not fully address the
implications of this error. Yet Ward’s brief quotes the
Deciding Official’s testimony before the administrative
judge, wherein he admitted that Ward’s alleged pattern of
misconduct influenced his penalty determination, and
argues that the Deciding Official’s penalty recommenda-
tion was erroneous because it was based on this improper
evidence of past misconduct in violation of Agency proce-
dure and due process. Pet’r’s Br. 52-53. In addition to
this reference to the error, there is no question that a
WARD v. USPS 8
A
First, the Board erred in failing to address the due
process concerns arising out of the Deciding Official’s ex
parte communications regarding Ward’s alleged prior
instances of misconduct, which were not mentioned in
Ward’s Notice of Proposed Removal or otherwise refer-
enced in the proceeding until the Deciding Official testi-
fied before the administrative judge that these incidents
played a role in his penalty determination. Where a
public employee has a property interest in continued
central focus of Ward’s appeal was the impropriety of the
imposed penalty of removal and the penalty analysis. See
Pet’r’s Br. 4, 39-54; Pet’r’s Reply Br. 21-30. Therefore, to
the extent that the legal implications of the Agency’s
improper consideration of Ward’s alleged prior miscon-
duct in its penalty analysis was “not discretely identified
in the parties’ briefs,” we conclude that we may resolve
the case on this issue because it is “inextricably linked to,
and is thus ‘fairly included’ within, the questions pre-
sented.” City of Sherrill, N.Y. v. Oneida Indian Nation of
N.Y., 544 U.S. 197, 214 n.8 (2005); see Long Island Sav.
Bank, FSB, v. United States, 503 F.3d 1234, 1244 (Fed.
Cir. 2007).
Further, the court notes that Ward’s counsel objected
to the Deciding Official’s testimony regarding Ward’s
alleged prior misconduct during the hearing before the
administrative judge, the first time such misconduct was
referenced in the proceeding, and Ward raised the issue
in his petition for review before the Board. See Final
Decision at 3-4; J.A. 137-38. The issue is therefore explic-
itly addressed in both the administrative judge’s initial
decision and the Board’s final decision. See Final Deci-
sion at 5-6; J.A. 27. Thus, although not thoroughly
briefed on appeal, the issue has been raised and ad-
dressed throughout the proceeding. Moreover, after the
issue was raised at oral argument, the government did
not seek an opportunity for further briefing. Under these
circumstances, it is well within our discretion to decide
the issue.
9 WARD v. USPS
employment, the Due Process Clause of the Fifth
Amendment requires that the employee be afforded notice
“both of the charges and of the employer’s evidence” and
an “opportunity to respond” before being removed from
employment. Stone v. FDIC, 179 F.3d 1368, 1374-76 (Fed.
Cir. 1999). In Stone v. FDIC, we established a standard
for determining whether ex parte communications with a
deciding official in the course of a public employee’s
removal proceeding violate the employee’s due process
rights. We recognized that “not every ex parte communi-
cation is a procedural defect so substantial and likely to
cause prejudice that it undermines . . . due process.” Id.
at 1376-77. Instead, “only ex parte communications that
introduce new and material information to the deciding
official” violate due process. Id. at 1377. We emphasized
that the ultimate inquiry is whether the ex parte commu-
nication is “so substantial and so likely to cause prejudice
that no employee can fairly be required to be subjected to
a deprivation of property under such circumstances.”
Blank, 247 F.3d at 1229; Stone, 179 F.3d at 1377.
Given the seriousness of a due process violation, we
made clear that if the deciding official received “new and
material information” by means of ex parte communica-
tions, thereby violating the employee’s due process rights,
the “violation is not subject to the harmless error test.”
Stone, 137 F.3d at 1377. Instead, the employee is auto-
matically entitled to an “entirely new” and “constitution-
ally correct” removal proceeding. Id.
Here, the Board did not analyze the Deciding Offi-
cial’s ex parte communications under the Stone frame-
work to determine whether Ward’s due process rights
were violated. Rather, the Board held that “[w]here an ex
parte communication does not relate to the charge itself,
but relates instead to the penalty, the Board has not
WARD v. USPS 10
considered such error to be [a] denial of due process of law
to be analyzed under the factors set forth in Stone.” Final
Decision at 5-6; see Biniak v. Soc. Sec. Admin., 90
M.S.P.R. 682, 686-87 (2002). We reject as arbitrary and
unsupportable the Board’s distinction between ex parte
communications relating to the charge itself and ex parte
communications relating to the penalty. Indeed, if ex
parte communications influence a deciding official’s
penalty determination, contributing to the enhancement
of the penalty to removal, the communications impact the
employee’s property interest in continued employment no
less than if they relate to the underlying charge. More-
over, the distinction has no support in our case law.
Stone, referencing Supreme Court precedent, emphasized
the importance of giving an employee notice of any aggra-
vating factors supporting an enhanced penalty as well as
a meaningful opportunity to address “whether the level of
penalty to be imposed is appropriate.” 179 F.3d at 1376.
In our view, Stone thus makes clear that ex parte com-
munications introducing information material to the
penalty run astray of the due process requirements of
notice and an opportunity to be heard. Ex parte commu-
nications that introduce “new and material information,”
whether material to the merits of the underlying charge
or material to the penalty to be imposed, violate due
process. There is no constitutionally relevant distinction
between ex parte communications relating to the underly-
ing charge and those relating to the penalty.
Accordingly, we remand this case to the Board to ana-
lyze, in the first instance, whether the ex parte communi-
cations between the Deciding Official and various Agency
supervisors and managers undermined Ward’s procedural
due process rights under Stone. “Specifically, the Board
must analyze whether the ex parte communications in
this case introduced new and material information to the
11 WARD v. USPS
[D]eciding [O]fficial.” 2 Id. If the Board finds that the
communications did introduce new and material informa-
tion in violation of Ward’s due process rights, Ward must
be afforded a “constitutionally correct removal procedure.”
Id. The Board may not excuse the constitutional violation
as harmless error. Id. at 1372-77 (remanding to the
Board for determination of whether ex parte communica-
tions violated the employee’s due process rights despite
deciding official’s affidavit stating that “he would have
2 We note that the administrative judge found that
the ex parte communications at issue in this case did not
violate Ward’s due process rights because they were not
“of the type that resulted in undue pressure upon [the
Deciding Official] to rule in a particular manner.” J.A. 27.
In Stone, we held that “whether the ex parte communica-
tions were of the type likely to result in undue pressure
upon the deciding official to rule in a particular manner”
is a relevant factor in determining whether the ex parte
communications violated due process. Blank, 247 F.3d at
1229; Stone, 179 F.3d at 1377. This, however, is only one
of several enumerated factors and is not the ultimate
inquiry in the Stone analysis. See Blank, 247 F.3d at
1229; Stone, 179 F.3d at 1377. The administrative judge’s
finding on this point is therefore not a sufficient basis on
which to conclude that the Deciding Official’s ex parte
communications did not violate Ward’s due process rights.
Further, the court notes that if the ex parte communi-
cations “were of the type likely to result in undue pres-
sure upon the deciding official,” this may well make it
more likely that the employee was deprived of due proc-
ess. Yet the lack of such undue pressure may be less
relevant to determining whether the ex parte communica-
tions deprived the employee of due process where, as
here, the Deciding Official admits that the ex parte com-
munications influenced his penalty determination. See
J.A. 137; J.A. 140. Under these circumstances, the mate-
riality of the ex parte communications appears to be self-
evident from the Deciding Official’s admission.
WARD v. USPS 12
concluded that [the employee] should be removed whether
or not he had [received the ex parte communications].”).
13 WARD v. USPS
B
Even if the Board, on remand, concludes that the ex
parte communications did not rise to the level of a due
process violation, the Agency’s consideration of Ward’s
alleged past instances of misconduct, without referencing
these incidents in the Notice of Proposed Removal, was
still a procedural error. As Stone recognized, “the Due
Process Clause only provides the minimum process to
which a public employee is entitled prior to removal.” 179
F.3d at 1377-78. “Public employees are, of course, enti-
tled to . . . other procedural protections . . . afforded them
by statute, regulation, or agency procedure.” Id. at 1378.
Section 752.404(f) of 5 C.F.R., the regulation governing
Agency procedure for removal of qualified employees,
including Ward, provides that “[i]n arriving at its deci-
sion, the agency shall not consider any reasons for action
other than those specified in the notice of proposed ac-
tion.” See Douglas, 5 M.S.P.B. at 331 & n.65; 5 C.F.R. §
752.401(c). As such, it is a procedural error, in violation
of 5 C.F.R. § 752.404(f), 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); see Turner v. U.S. Postal
Serv., 85 M.S.P.R. 565, 569 (2000); Westmoreland v. Dep’t
of Veterans Affairs, 83 M.S.P.R. 625, 628 (1999); 5 C.F.R.
§ 752.404(f). Thus, the Board in this case properly found
that the Deciding Official erred in considering Ward’s
alleged prior incidents of misconduct, which were not
included in the Notice of Proposed Removal, as grounds
for imposing the penalty of removal. Final Decision at 5.
Despite recognizing this procedural error, the Board
erred in concluding that it could “remedy the error” by
performing an independent analysis of the Douglas fac-
tors to determine whether “removal is within the bounds
WARD v. USPS 14
of reasonableness.” 3 Id. at 6. Instead, the Board was
required to run a harmless error analysis to determine
whether the procedural error required reversal. The Civil
Service Reform Act provides that 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.” 5 U.S.C. § 7701(c)(2)(A); Diaz
v. Dep’t of the Air Force, 63 F.3d 1107, 1109 (Fed. Cir.
1995); Shaw v. U.S. Postal Serv., 697 F.2d 1078, 1080
(Fed. Cir. 1983); see 5 C.F.R. § 1201.56(b)(1). The Board’s
regulations define “harmful error” as an “[e]rror by the
agency in the application 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(c)(3); Shaw, 697 F.2d at
1080. We have repeatedly held employees to this burden
to show harmful error in an agency’s procedure in order to
establish reversible procedural error. Diaz, 63 F.3d at
1109 (“We have previously held that an employee chal-
3 At oral argument, the government cited LaChance
v. Merit Systems Protection Board, 147 F.3d 1367, 1374
(Fed. Cir. 1998), to defend the Board’s independent pen-
alty analysis. Final Decision at 6; Oral Argument at
17:00–38; 21:05–21:21. The issue addressed in LaChance,
however, is distinct from that presented in this case,
namely, the analysis required where the Board finds that
an agency violated its own procedure in reaching its
decision. In related circumstances, we have held that a
reasonableness inquiry is not sufficient. In addition to
determining “whether the penalty was reasonable . . . if
there is ‘some indication that the agency would have
regarded the sustained charges as insufficient to justify
the penalty imposed,’ the Board must remand the case to
the agency for redetermination of the appropriate penalty
in the first instance.” Chambers v. Dep’t of the Interior,
602 F.3d 1370, 1381 (Fed. Cir. 2010) (quoting Guise v.
Dep’t of Justice, 330 F.3d 1376, 1381 (Fed. Cir. 2003)).
15 WARD v. USPS
lenging an agency action has the burden to prove that a
violation of a statutory procedure was harmful.”); Handy
v. U.S. Postal Serv., 754 F.2d 335, 337-38 (Fed. Cir. 1985)
(“It is insufficient simply to show that a statutory proce-
dure was not followed at the agency level. Harmful error
must be shown.”); Shaw, 697 F.2d at 1080-81.
Arguably, the Board’s independent analysis of the
Douglas factors to determine whether “removal is within
the bounds of reasonableness” was the Board’s attempt to
perform a harmless error analysis. Final Decision at 6.
The focus of a harmless error analysis, however, is the
agency and whether the agency is likely to have reached a
different conclusion in the absence of the procedural
error. 5 C.F.R. § 1201.56(c)(3); see Diaz, 63 F.3d at 1109
(“[Petitioner] did not argue or submit any evidence that
showed that the agency’s procedural violation affected the
outcome of the agency’s decision or was in any way harm-
ful. Therefore, the Board properly declined to reverse the
agency’s decision to remove [Petitioner].”); Handy, 754
F.2d at 338 (“Having failed to show that in some way
[that the absence of the procedural error] would have
possibly affected the agency’s decision, petitioner is not
entitled to prevail.”); Shaw, 697 F.2d at 1080-81. In
contrast, the Board’s “own analysis” of Ward’s penalty
considered whether, in its view, the imposed penalty did
“not exceed the tolerable limits of reasonableness.” Final
Decision at 6, 10. Thus, the Board’s independent analysis
of the Douglas factors did not constitute a proper harm-
less error analysis.
Accordingly, on remand, if the Board determines that
the Deciding Official’s ex parte communications did not
violate Ward’s due process rights, the Board must con-
sider whether the Agency’s procedural error, in consider-
ing Ward’s alleged prior instances of misconduct without
WARD v. USPS 16
including these incidents in the Notice of Proposed Re-
moval, constituted harmful error. Specifically, here as in
other cases, the Board must analyze whether “there is
some indication that the agency would have regarded the
sustained charges as insufficient to justify the penalty
imposed.” 4 Chambers, 602 F.3d at 1381 (internal quota-
tion omitted). If there is such an indication, the matter
must be remanded “to the agency for redetermination of
the appropriate penalty in the first instance.” Id.
CONCLUSION
In light of the above analysis, we vacate the Board’s
decision and remand the case for further proceedings
consistent with this opinion. On remand, the Board must
first analyze whether the Deciding Official’s ex parte
communications violated Ward’s due process rights by
introducing new and material information. If the Board
finds that the ex parte communications did introduce new
and material information, Ward must be afforded a new
removal proceeding free from such violations of his consti-
4 Although we take no position regarding whether
the Agency’s error was harmful, we note that the Decid-
ing Official did not testify that he would have reached the
same penalty determination without considering Ward’s
prior misconduct. Cf. Coleman, 100 M.S.P.R. at 579.
Instead, the Deciding Official expressly admitted that
Ward’s alleged “recurring pattern of behavior” influenced
his determination that two Douglas factors weighed in
favor of removal, as it lowered the Deciding Official’s
confidence in Ward’s ability to perform his duties and
convinced the Deciding Official that Ward showed no
potential for rehabilitation. J.A. 137; J.A. 140; see
Turner, 85 M.S.P.R. at 569. The Deciding Official also
testified that several other Douglas factors weighed
against removal.
17 WARD v. USPS
tutional rights. If, however, the Board finds that Ward’s
due process rights were not violated because the ex parte
communications did not introduce new and material
information, the Board must analyze whether the
Agency’s procedural error, considering Ward’s alleged
prior misconduct that was not included in his Notice of
Proposed Removal, was harmful error.
VACATED AND REMANDED