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MSPB Administrative Judge Commits Harmful Error

MSPB Appellant challenges Administrative Judge's Decision

Due Process is a fundamental tenet of the legal process and a constitutional right. So what happens when a violation of this right costs a federal employee his or her job?

This is the question that Cody Seeler recently put before the Merit System Protection Board in his appeal of his removal from employment with the National Park Service. Mr. Seeler was removed from his position when he allegedly refused to attend what the Agency deemed to be a mandatory training session. In his appeal, Mr. Seeler contended he had no prior knowledge that this training was a requirement for his position. Upon review of the facts of this case, the Administrative Judge made an ex-parte communication to Mr. Seeler's Acting Chief to clarify a statement in the notice of proposed removal.

In her decision the Administrative Judge referred to comments made during said ex-parte communication that were not contained in the notice of proposed removal or the record. The Board found that in relying on statements made during her ex-parte communication the Administrative Judge deprived Mr. Seeler of his right to due process in that the additional comments made by the Acting Chief were new and material information that Mr. Seeler did not have notice of or an opportunity to respond to and were clearly relied upon by the Judge in making her decision to uphold his removal.

In its decision the MSPB reiterated that federal employees cannot be removed from employment when the removal proceeding is conducted in violation of their right to due process. The removal was overturned as a result of the harmful procedural error.