Patricia J. Kelly v. Department of Agriculture

NOTE: This disposition is nonprecedential.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

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NOTE: This disposition is nonprecedential.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.

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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
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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
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(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
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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
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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
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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.
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