Young v. Hud ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
RAYLAND YOUNG,
Petitioner,
v.
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT,
Respondent.
______________________
2011-3232
______________________
Petition for review of an arbitrator’s decision in FMCS
no. 111228-52284-6, by Marvin J. Feldman.
______________________
Decided: February 11, 2013
______________________
MATTHEW H. SOLOMSON, Sidley Austin, LLP, of
Washington, DC, argued for petitioner. With him on the
brief was KYLE J. FIET. Of counsel on the brief was JACOB
Y. STATMAN, Snider & Associates, LLC, of Baltimore,
Maryland.
HILLARY A. STERN, Senior Trial Counsel, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent. With her on the brief were STUART F.
DELERY, Acting Assistant Attorney General, JEANNE E.
2 YOUNG v. HUD
DAVIDSON, Director, and BRIAN M. SIMKIN, Assistant
Director.
______________________
Before PROST, O’MALLEY, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge
REYNA. Dissenting opinion filed by Circuit Judge PROST.
REYNA, Circuit Judge.
Rayland Young seeks review of the arbitrator’s opin-
ion and award, dated August 31, 2011, denying his griev-
ance that challenged his termination. For the reasons set
forth below, we reverse the arbitrator’s decision and
remand for further proceedings consistent with this
opinion.
I. BACKGROUND
Mr. Young served as a Public Housing Revitalization
Specialist in the Office of Public Housing in the Cleve-
land, Ohio office of the Department of Housing and Urban
Development (HUD). He had been employed by HUD for
more than ten years. On August 31, 2010, Mr. Young was
representing himself at an arbitration hearing, appealing
his five-day suspension for disruptive behavior, misrepre-
sentation of authority, and use of insulting language to
and about other employees. One of the witnesses testify-
ing against him was Gregory Darr, the Executive Director
of the Coschocton Metropolitan Housing Authority and a
HUD client.
Following Mr. Darr’s testimony, there was a recess in
the proceeding. According to Mr. Darr, while he was
walking down the hallway, about 25-30 feet away from
Mr. Young, Mr. Young shouted from immediately outside
the door of the hearing room, “[y]ou are a racist. You are
a member of the KKK, and you should be shot.” Mr. Darr
YOUNG v. HUD 3
reported that he was shaken by the alleged incident, and
he immediately relayed the events to an administrative
officer, Reishmemah Haggins, and to the office manager,
Doug Shelby. Mr. Darr also insisted on filing a statement
with the Federal Protective Service. Mr. Darr did not
identify any person who directly witnessed the alleged
confrontation. In the days that followed the incident,
distress within the office grew as word of the supposed
confrontation spread. On September 3, 2010, Mr. Young
was placed on administrative leave.
Shawn Sweet, Director of the Cleveland Hub Office of
Public Housing prepared a proposal for disciplinary action
to be taken against Mr. Young. Ms. Sweet determined
that Mr. Young’s conduct was similar to Offense Five from
the HUD Handbook No. 0752, “[r]ude boisterous, or
disruptive conduct; use of insulting, abusive or offensive
language to or about other employees,” but bordered on
Offense Six, “[t]hreatening behavior.” His threatening
behavior was her key concern in recommending Mr.
Young’s termination. But the reason Ms. Sweet gave for
the punishment she recommended was that he “[made] an
aggressive or intimidating statement to an Agency wit-
ness at an arbitration hearing.” Joint App’x 17.
Once Ms. Sweet issued her notice of proposed remov-
al, Unabyrd Wadhams, Regional Public Housing Director,
became the deciding official. Ms. Wadhams reviewed the
proposal as well as the notes and supporting documents.
She also interviewed several relevant witnesses, including
Mr. Darr, Mr. Shelby, Ms. Haggins, and Jimmy Davis.
Notably, Ms. Wadhams conducted all of her interviews
after Mr. Young submitted his oral and written state-
ments. This meant that Mr. Young was unaware of the
content and substance of the interviews and was unable
to respond to anything unearthed during those inter-
views.
4 YOUNG v. HUD
Ms. Wadhams found Mr. Darr’s account of the inci-
dent credible, but its only support came from other indi-
viduals who relied on what Mr. Darr had told them about
the incident. No witnesses testified that they either saw
or heard Mr. Young yell or shout at Mr. Darr. In contrast,
Mr. Davis, a HUD employee assisting Mr. Young in the
arbitration, submitted an affidavit on behalf of Mr. Young
in which he stated, “I was with Mr. Young the entire time
during this break. He never approached Mr. Darr and did
not make any intimidating or aggressive statements to
him. As a matter of fact he never said anything to Mr.
Darr.” Joint App’x 35. During an interview held after
Mr. Young made his submissions, Mr. Davis also testified
that Mr. Young was in his view the entire break and that
he did not witness Mr. Young scream, threaten, or other-
wise interact with Mr. Darr. During the arbitration,
HUD stipulated that Thomas Massouras, counsel for
HUD at the hearing outside which the incident allegedly
occurred, stayed in the hearing room during the entire
recess and heard no confrontation or yelling. Consistent
with these clear statements, Mr. Young and Mr. Davis
maintained that they spent the entire recess outside the
hearing room, while Mr. Davis later acknowledged in his
interview that the two went to his cubicle during the
recess and that he checked email and attended to other
matters. Ms. Wadhams determined that this discrepancy
wholly undermined Mr. Davis’ credibility as a witness
and, as a result, Ms. Wadhams determined that Mr.
Young engaged in the conduct described in Ms. Sweet’s
proposal for removal. Mr. Young was never apprised of
these supposed inconsistencies, nor did he have a chance
to respond to them because the interview only occurred
after Mr. Young had fully been heard.
In sustaining the recommendation to remove Mr.
Young, Ms. Wadhams explained that she considered this
as his second offense (the first being the conduct that gave
rise to the five-day suspension). She viewed Mr. Young’s
YOUNG v. HUD 5
conduct as a very serious threat, and one that was partic-
ularly egregious because he directed it at a HUD client.
She also explained that the language Mr. Young allegedly
used was similar to language he allegedly used on other
occasions, including the incident that gave rise to the
prior appeal, so she treated those past incidents as evi-
dence of a pattern of misconduct. On the basis of these
considerations, Ms. Wadhams concluded that removal
was the appropriate measure.
Following Ms. Wadhams’ decision, Mr. Young arbi-
trated his grievance before Marvin J. Feldman. The
arbitrator found Mr. Darr’s testimony credible while Mr.
Davis’ testimony was inconsistent and lacking in candor.
As for the proposed penalty, the arbitrator also noted that
this was Mr. Young’s second offense. But when discussing
the first incident, the arbitrator described it as “nothing
more than the predecessor of the activity involving the
instant matter.” Joint App’x 12. Finally, regarding Mr.
Young’s due process arguments, the arbitrator found
them unfounded because he had been given adequate
time at the end of his arbitration hearing to address
them. The arbitrator found the charge against Mr. Young
supported by preponderant evidence and denied the
grievance. Following the arbitrator’s decision, Mr. Young
appealed to this court. We have jurisdiction pursuant to 5
U.S.C. §§ 7121(f) and 7703.
II. STANDARD OF REVIEW
This court reviews an arbitrator’s decision, issued
pursuant to a negotiated grievance procedure, under the
same standard that applies to appeals from the Merit
Systems Protection Board. 5 U.S.C. § 7121(f) (2006);
Dixon v. Dep’t of Transp., 8 F.3d 798, 803 (Fed. Cir. 1993).
Under that standard, we must affirm the arbitrator’s
decision unless it is (1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
6 YOUNG v. HUD
regulation having been followed; or (3) unsupported by
substantial evidence. 5 U.S.C. § 7703(c); Dixon, 8 F.3d at
803. In addition, we must reverse an arbitrator’s decision
if it is not in accordance with the requirements of the Due
Process Clause of the Fifth Amendment or any other
constitutional provision. Cf. Ward v. U.S. Postal Serv.,
634 F.3d 1274, 1278 (Fed. Cir. 2011).
III. DISCUSSION
The proceedings leading to Mr. Young’s removal pre-
sent serious concerns related to constitutional due process
and observance of agency procedures, both of which the
arbitrator failed to adequately address. In that order, we
explain why each concern amounts to a violation and
requires reversal.
A. Due Process
Procedural due process requires that certain substan-
tive rights—including the property interest established by
certain kinds of federal employment—cannot be deprived
unless constitutionally adequate procedures are followed.
Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368, 1375 (Fed.
Cir. 1999) (quoting Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 541 (1985)). Applicable to this case are
“[t]he essential requirements of due process, . . . notice
and an opportunity to respond.” Id. at 1375-76 (quoting
Loudermill, 470 U.S. at 546). As such, an employee is
entitled to notice of the charges against him, an explana-
tion of the employer’s evidence, and an opportunity to
present his side of the story before termination. Id. at
1376 (quoting Loudermill, 470 U.S. at 546); see also
Douglas v. Veterans Admin., 5 M.S.P.R. 280, 304 (1981).
When an employer obtains new and material infor-
mation through ex parte communications, an “employee’s
constitutional due process guarantee of notice (both of the
charges and of the employer's evidence) and the oppor-
tunity to respond” are undermined. Stone, 179 F.3d at
YOUNG v. HUD 7
1376. Where an employee has notice only of certain
charges or portions of the evidence and the deciding
official considers new and material information, proce-
dural due process guarantees are not met because the
employee is no longer on notice of the reasons for dismis-
sal and/or the evidence relied upon by the agency. Id.As we observed in Stone, not every ex parte communi-
cation is a procedural defect that is so substantial and so
prejudicial as to undermine the due process guarantee
and require an entirely new administrative proceeding.
Rather, “only ex parte communications that introduce new
and material information” to the deciding official violate
the due process guarantee of notice. Id. at 1377.
In Stone, we identified several useful factors to con-
sider when determining if new and material information
has been introduced by means of ex parte contacts: (1)
whether the ex parte communication introduces “cumula-
tive” information or new information; (2) whether the
employee knew of the communication and had a chance to
respond; and (3) whether the ex parte communication
resulted in undue pressure upon the deciding official to
rule in a particular manner. Id. Where “the ex parte
communication 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 circum-
stances,” a due process violation has occurred and the
former employee is entitled to a new constitutionally
correct removal procedure. Id. Such a violation is not
subject to the harmless error test. Id. (citing Sullivan v.
Dep’t of the Navy, 720 F.2d 1266, 1274 (Fed. Cir. 1983)).
Under the first Stone factor, HUD argues that the de-
ciding official uncovered cumulative, rather than “new
and material,” information during her investigatory
interviews of Mr. Darr, Mr. Shelby, Ms. Haggins, and Mr.
Davis. HUD maintains that Blank v. Department of the
Army, 247 F.3d 1225 (Fed. Cir. 2001), authorizes such
8 YOUNG v. HUD
interviews to “confirm and clarify information that was
already contained in the record.” Id. at 1229.
We are convinced that the ex parte communications in
this case were more than “confirming and clarifying
information” that was already on the record because the
deciding official described the ex parte communication as
a “huge” departure from written statements already on
the record. The deciding official also admitted that the ex
parte communications were the most critical statements
in her mind. The significant and overwhelming role that
the new communication played in the termination deci-
sion makes it evident that the ex parte communications
introduced new and material information as understood
under the first Stone factor.
As we observed in Ward—a case very similar to this
one—the third Stone factor, undue pressure, is less rele-
vant to determining whether the ex parte communications
deprived the employee of due process where, as here, the
deciding official admits that the ex parte communications
influenced her determination. 634 F.3d at 1280 n.2.
Based on record admissions regarding the significance of
the ex parte communications, the first Stone factor strong-
ly suggests a due process violation while any deficiency of
the third factor is less significant.
We also find HUD’s reliance on Blank misplaced for
another reason. In that case, the Board actually analyzed
the allegedly improper ex parte communications under the
Stone factors, and this court found those findings sup-
ported by substantial evidence. Blank, 247 F.3d at 1229.
In this case, the arbitrator performed no due process
analysis whatsoever. Cf. Stone, 179 F.3d at 1377. In-
stead, the arbitrator merely noted that “[Mr. Young]
received a full disclosure by the employer when request-
ed . . . . [and] . . . was given, at the end of the hearing,
sufficient time to reflect on his activities in the case.”
Joint App’x 15. But the opportunity “to reflect on his
YOUNG v. HUD 9
activities” post-termination does not address whether Mr.
Young had notice and an opportunity to be heard at the
investigation stage. Instead, the controverted ex parte
contacts arose after Mr. Young had made his written and
oral statements to the deciding official. Mr. Young had no
opportunity to respond to the allegedly inconsistent
statements Mr. Davis had made only in his ex parte
interview with the deciding official before the deciding
official rendered her decision. This defect during the
investigation stage more than satisfies the second Stone
factor considering that Mr. Young neither learned of the
ex parte communication, nor had an opportunity to re-
spond to it before the deciding official. We also note the
likelihood that any response from Mr. Young would have
been meaningful in addressing the allegedly inconsistent
statements. Given the layout of the HUD offices, the
proximity of the hearing room to Mr. Davis’s cubicle, and
the sworn testimony that Mr. Young was in view of Mr.
Davis at all times, the perceived inconsistency in Mr.
Davis’s statements appears easily reconcilable.
Mr. Young was entitled to “procedural fairness at
each stage of the removal proceedings,” not just upon
review of the termination decision. Stone, 179 F.3d at
1376. No amount of time for reflection can excuse past
due process violations. “[W]hen these rights are under-
mined, [he] is entitled to relief regardless of the stage of
the proceedings.” Id. We conclude as a matter of law that
the ex parte communications from this case were so sub-
stantial and so likely to cause prejudice that no employee
can fairly be required to be subjected to a deprivation of
property under these circumstances. Id. at 1377. A due
process violation has occurred and Mr. Young is entitled
to a new constitutionally correct removal procedure. 1
1 The dissent accuses the majority of wearing blin-
ders in our review of the termination proceeding. The
problem with this perspective is that the dissent, like the
10 YOUNG v. HUD
B. Violation of Agency Procedures
Even if Mr. Young’s due process rights had not been
violated, the deciding official’s conduct resulted in a
harmful procedural error requiring reversal. Cf. Ward,
634 F.3d at 1281. Applicable regulations instruct the
deciding official to “consider only the reasons specified in
the notice of proposed action and any answer of the em-
ployee” in arriving at a removal decision. 5 CFR §
752.404(g)(1) (2012). Similarly, HUD’s Adverse Actions
Handbook explains that a deciding official’s “decision
must be based on the evidence relied upon to support the
proposal, and not on ‘ex parte’ (with only one side present)
communications; i.e., conversation that provides addition-
al evidence that is not provided to the employee for com-
ment or response.” Dep’t of Housing and Urban Dev.
Admin., Handbook 0752.02 REV-3, Adverse Actions (Dec.
1, 2000). “It is a procedural error . . . for ‘an agency to
rely on matters . . . without including those matters in the
proposal notice.’” Ward, 634 F.3d at 1281 (quoting Cole-
man v. Dep’t of Defense, 100 M.S.P.R. 574, 579 (2005)).
Accordingly, because the deciding official relied on ex
parte communications that were not part of the original
proposal for removal, HUD committed procedural error.
Id.deciding officer below, starts from the position that Mr.
Young indisputably engaged in the behavior of which he
is accused, relying on prior experiences, the truth and
veracity of which were not adjudged below or brought on
appeal. See, e.g., dissent at 2 (“Young is not a stranger to
disciplinary proceedings.”); see also id. at 2 n.1 (crediting
the unsubstantiated “fears” of Mr. Young’s co-workers).
Thus, the dissent concludes that the ex parte communica-
tions were harmless procedural errors that merely “con-
firmed” Mr. Young’s behavior. We believe the record
evidence on that point is sufficiently in dispute that Mr.
Young’s due process rights must be safeguarded.
YOUNG v. HUD 11
C. Evidence of Prior Misconduct
Finally, we believe that the deciding official and the
arbitrator erred in basing their decisions—in part—upon
similar instances of past misconduct. In particular, the
deciding official explained that she found “Mr. Darr’s
report . . . credible because the language he reported [Mr.
Young] using is similar to language that the record shows
[he] . . . used on other occasions, including those which
have been the basis for prior discipline.” Joint App’x 22.
Similarly, the arbitrator noted that “[t]here is no doubt in
th[e] writer’s mind [Mr. Young] was responsible for the
commentary to Darr at the time and place complained of.
[Mr. Young’s] alleged activity was nothing more than a
continuation of his behavior pattern that has followed the
course of his presidency at the Cleveland HUD agency
office.” Id. at 11.
The Board has previously held that, while prior mis-
conduct may be considered in determining the appropri-
ateness of a penalty or impeaching credibility where the
prior misconduct relates to the propensity for honesty,
reliance on prior conduct to prove whether the petitioner
engaged in the same conduct on another occasion is
inappropriate. See Carrick v. U.S. Postal Serv., 67
M.S.P.R. 280, 283, aff’d, 69 F.3d 555 (Fed. Cir. 1995); see
also Bennett v. Dep’t of the Air Force, 84 M.S.P.R. 132, 138
(M.S.P.B. 1999); Hawkins v. Smithsonian Inst., 73
M.S.P.R. 397, 403 (M.S.P.B. 1997). Similarly, in Ibrahim
v. Department of the Army, 30 M.S.P.R. 531, 536 (1986),
the Board, looking to Federal Rule of Evidence 404(a) for
guidance, stated that “[t]he basic rule is that character
evidence may not be introduced circumstantially to prove
the conduct of the witness.” We agree. While the Federal
Rules of Evidence do not apply to Board hearings, we
have found them to be a helpful guide to proper hearing
practices. Yanopoulos v. Dep’t of Navy, 796 F.2d 468, 471
(Fed. Cir. 1986). On remand, Mr. Young’s past miscon-
duct should not be used to prove charges that have been
12 YOUNG v. HUD
asserted against him in this case. Mr. Young’s identity is
not at issue here and the government’s reliance on Feder-
al Rule of Evidence 404(b) to excuse this use of character
evidence is without merit.
IV. CONCLUSION
Because we conclude that Mr. Young’s due process
rights have been violated and that the agency violated its
own procedures, we reverse the arbitrator’s decision and
remand for further proceedings consistent with this
opinion. Given this disposition, we need not address the
other grounds for relief asserted by the petitioner.
REVERSED AND REMANDED
COSTS
No costs.
United States Court of Appeals
for the Federal Circuit
______________________
RAYLAND YOUNG,
Petitioner,
v.
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT,
Respondent.
______________________
2011-3232
______________________
Petition for review of an arbitrator’s decision in FMCS
no. 111228-52284-6, by Marvin J. Feldman.
PROST, Circuit Judge, dissenting.
I disagree with the majority that Young’s termination
amounted to a violation of his due process rights. In my
opinion, Young received all the process he was due—and
more. The majority views the termination proceedings
with blinders, focusing solely on one particular portion of
Wadhams’s investigation without considering the exten-
sive pre- and post-termination proceedings that Young
received. In doing so, the majority creates an unneces-
sarily stringent due process standard that bumps up
against Supreme Court precedent and opens the door to
meritless claims by duly-terminated employees. For these
reasons, I respectfully dissent.
2 YOUNG v. HUD
I
Young is not a stranger to disciplinary proceedings.
The alleged conduct at issue in this case occurred during
an earlier arbitration proceeding in which Young was
contesting a five-day suspension for allegedly engaging in
disruptive behavior when he did not receive a specific
desk. J.A. 6. One of HUD’s witnesses at that earlier
proceeding was Gregory Darr, who happened to be visit-
ing HUD’s Cleveland Field Office when Young had en-
gaged in the behavior upon which his five-day suspension
had been based. While questioning Darr during that
proceeding, Young, on the record, asked Darr whether he
was a racist. Young later allegedly told Darr during a
break in the same proceeding, “You are a racist, you are a
member of the Ku Klux Klan and you should be shot.” 1
J.A. 17. Based on this latter statement, Shawn Sweet
proposed Young’s removal, and Young ultimately was
terminated.
II
Under Cleveland Board of Education v. Loudermill,
an agency’s pre-termination proceedings need only afford
the employee “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.” 470 U.S.
532, 547 (1985). These proceedings “need not definitely
1 Indeed, in response to Young’s alleged statement
during the break, his coworkers “expressed elevated
concern in the possibility that Mr. Young’s unpredictable
behavior will become violent.” J.A. 13. In fact, one
coworker stated that “people here are scared, and their
feelings are becoming more intensified because of the
behavior of Mr. Young. They are afraid of him. . . . This is
no way to work. No one should come into work fearful of
what might happen if Mr. Young shows up and gets
angry.” J.A. 14.
YOUNG v. HUD 3
resolve the propriety of the discharge” but are only “an
initial check against mistaken decisions—essentially, a
determination of whether there are reasonable grounds to
believe that the charges against the employee are true
and support the proposed action.” Id. at 545-46. Here,
Young received all the process to which he was entitled.
The notice of proposed removal informed Young that his
removal was based on the statement he allegedly made to
Darr. It further noted that there was evidence that Darr
was visibly shaken by Young’s alleged statement and that
Darr had complained to the Field Office Manager. J.A.
17. Young was then given an opportunity to respond to
this charge prior to his termination. Ultimately, Young’s
termination was based on the precise charge for which he
was accorded an opportunity to respond. In my opinion,
these pre-termination proceedings undoubtedly provided
enough process to allow Wadhams, the deciding official, to
determine whether there were reasonable grounds to
believe that Young made the alleged statements and
whether termination was the appropriate penalty.
The majority, however, concludes that these pre-
termination proceedings were insufficient because Young
did not have an opportunity to respond to the evidence
uncovered during Wadhams’s ex parte pre-termination
investigation. As we have previously recognized, howev-
er, “not every ex parte communication is a procedural
defect so substantial and likely to cause prejudice that it
undermines . . . due process.” Ward v. U.S. Postal Serv.,
634 F.3d 1274, 1279 (Fed. Cir. 2011) (quoting Stone v.
FDIC, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999)). Instead,
“the ultimate inquiry is whether the ex parte communica-
tion 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.’” Id.(quoting Blank v. Dep’t of the Army, 247 F.3d 1225, 1229
(Fed. Cir. 2001)).
4 YOUNG v. HUD
Here, I cannot accept that the identified ex parte
communications created such prejudice to Young that his
due process rights were violated. Young argues that these
ex parte communications—particularly Wadhams’s com-
munications related to Davis’s alibi for Young—led Wad-
hams to discount Davis’s affidavit, an affidavit which
Young himself had submitted to support his response to
the proposed notice of removal. See Young Br. 22 (“In
particular, Ms. Wadhams discounted Mr. Davis’ affidavit
upon information she obtained ex parte from Mr. Davis
and other HUD employees she interviewed, and this
information was pivotal to her decision to sustain the
charge against Mr. Young.”). The ex parte communica-
tions, therefore, did not result in new and material infor-
mation to support the charge against Young, but merely
followed up on Young’s own evidence. That is, Young was
informed of the specific charge against him, had an oppor-
tunity to respond to the charge, and was ultimately
removed based solely on that charge. Nevertheless,
Young is arguing that he had a right to know—before his
termination—whether the deciding official would credit
his evidence. This is not the law.
Furthermore, to the extent that Young is arguing that
Wadhams’s additional communications with HUD em-
ployees violated his due process rights, those communica-
tions simply confirmed what was already noted in the
proposed notice of removal: Darr was visibly shaken after
the alleged encounter with Young. J.A. 17. Where, as
here, the deciding official interviews other agency em-
ployees “merely to confirm and clarify information that
was already in the record . . . there is no due process
violation.” Blank, 247 F.3d at 1229. Consequently, on
this record, I am unwilling to conclude that Wadhams’s ex
parte communications were “so substantial and so likely
to cause prejudice” that they amounted to a due process
violation.
YOUNG v. HUD 5
Even assuming Wadhams’s ex parte investigation did
taint the pre-termination proceedings, the post-
termination hearings before the arbitrator decidedly
cured any procedural due process deficiencies. Our sister
circuits, applying Loudermill, have recognized that “ex-
tensive post-termination proceedings may cure inade-
quate pre-termination proceedings.” Krentz v. Robertson
Fire Prot. Dist., 228 F.3d 897, 902 (8th Cir. 2000); Schacht
v. Wisconsin Dep’t of Corrections, 175 F.3d 497, 503 (7th
Cir. 1999) (“[Plaintiff’s] procedural due process claim fails
. . . because, even if he could prove his claim, he had
adequate post-termination administrative remedies he
could have pursued.”). In this case, the arbitrator held a
four-day hearing during which Davis testified and Young
had an opportunity both to present his side of the story
and to cross-examine HUD’s witnesses. The arbitrator
was not persuaded by Young’s version of the events and
instead credited Darr’s testimony. We owe the arbitra-
tor’s determinations the same deference that we apply to
decisions from the Board. See 5 U.S.C. § 7121(f); Frank v.
Dep’t of Transp., 35 F.3d 1554, 1556 (Fed. Cir. 1994).
III
I also disagree with the majority’s determination that
Wadhams’s conduct violated agency policy and somehow
“resulted in a harmful procedural error requiring rever-
sal.” Maj. Op. at 10. As an initial matter, it is unclear
whether HUD’s Adverse Actions Handbook is actually
binding on the agency. See Farrell v. Dep’t of the Interior,
314 F.3d 584, 590 (Fed. Cir. 2002) (“The general consen-
sus is that an agency statement, not issued as a formal
regulation, binds the agency only if the agency intended
the statement to be binding.” (citations omitted)). But
even if it were, Wadhams’s ultimate decision was not
“based on” her ex parte communications. Nor did Wad-
hams rely on these communications to glean additional
reasons for terminating Young in violation of 5 CFR
§ 52.404(g)(1). Rather, the communications here were
6 YOUNG v. HUD
merely an attempt to confirm and clarify information—
submitted by Young—that was already contained in the
record. In my view, such communications do not amount
to procedural error, let alone harmful procedural error.
Finally, neither the arbitrator nor Wadhams improp-
erly relied upon Young’s prior misconduct. While the
arbitrator did mention it, there is no indication that this
recognition played any role in his conclusion that the
agency proved the charge at issue here. Indeed, before
discussing Young’s past behavior pattern, the arbitrator
had already concluded that “[t]here is no doubt in this
writer’s mind that the grievant was responsible for the
commentary to Darr at the time and place complained of.”
J.A. 11. Similarly, Wadhams’s decision letter expressly
recognized “that the sustained charge, standing alone,
regardless of [the] first or second offense, is sufficient to
justify [Young’s] removal.” J.A. 23.
IV
In sum, let us be clear: Wadhams did not rely upon
her ex parte communications to bring additional charges
against Young, or even to provide additional proof that
Young committed the misconduct specifically charged
here. Rather, she relied upon these communications
merely to confirm and clarify information that was al-
ready contained in the record. That is not a violation of
due process. We should defer to the arbitrator’s assess-
ment of Young and his claim and affirm. I respectfully
dissent.