If you’re a federal employee facing discipline or removal, it can feel like the ground is shifting under you—stress at home, uncertainty at work, and a lingering fear that speaking up will make things worse. Many employees also describe isolation: colleagues pull back, supervisors stop communicating clearly, and the process starts to feel stacked against you.
One of the most common (and most painful) surprises is learning that the deciding official considered something you never saw—information you didn’t get a chance to explain or correct—before your career was changed.
Sometimes you answer the charges. Sometimes you give your side of the story. And sometimes you find out later that the deciding official went around you to get information you didn’t even know was being considered.
In Kolenc v. Department of Health and Human Services (Sept. 11, 2013), the Merit Systems Protection Board (MSPB) affirmed an administrative judge’s decision reversing a removal because the deciding official relied on ex parte information that affected how the official viewed the employee’s credibility. Southworth PC did not represent any party in this matter.
Case Snapshot
Forum: Merit Systems Protection Board (MSPB)
Decision date: September 11, 2013
Agency: Department of Health and Human Services (HHS), Food and Drug Administration (FDA)
Position: Consumer Safety Officer
Action challenged: Removal
Core issue: Whether ex parte communications gave the deciding official new and material information without allowing the employee to respond
Outcome: MSPB denied the agency’s petition for review and affirmed reversal of the removal
Relief ordered: The agency was ordered to cancel the removal effective December 5, 2011, and provide back pay, interest, and benefits (with deadlines stated in the decision)
What Happened
According to the decision, the agency removed the employee based on four charges: willful misuse of a government-owned vehicle, misuse of a government gas card, failure to provide accurate time and attendance information, and failure to follow instructions.
One specification under the “failure to follow instructions” charge involved a traffic ticket the employee received while driving a government vehicle in August 2011. In a written reply to the proposed removal, the employee’s representative stated that the ticket had been cancelled. The deciding official, however, received information from the agency’s fleet manager—obtained after contacting the Denver Police Department—that the ticket was still active.
The deciding official referenced that information in the removal decision and later testified that it affected the official’s view of the employee’s credibility.
After a hearing, an MSPB administrative judge reversed the removal in an initial decision dated July 13, 2012, finding a due process violation because the deciding official considered ex parte information that was new and material. The judge also ordered interim relief while the case was under review.
The agency petitioned for review. The employee moved to dismiss that petition, arguing the agency did not timely comply with the interim relief order. The MSPB ultimately declined to dismiss the petition, finding the agency had shown compliance (although delayed), and then denied the petition on the merits—affirming that due process was violated.
What the MSPB Decided—and Why
The MSPB focused on a constitutional due process problem: when an agency removes a federal employee, the employee is entitled to notice of the charges and the evidence relied upon, plus a meaningful opportunity to respond.
The decision applied the Federal Circuit’s framework from Stone v. FDIC for evaluating ex parte communications. In plain English, not every off-the-record communication is automatically fatal—but it becomes a due process problem when it introduces new and material information that the employee didn’t know about and couldn’t answer.
The MSPB emphasized several points that mattered in this case:
- The deciding official did more than “confirm and clarify” what was already in the record. The official obtained and relied on new information about the status of the traffic ticket.
- The deciding official used that new information to judge the employee’s credibility, and credibility mattered to how the official evaluated the charged misconduct.
- The employee was not given an opportunity to respond to the discrepancy about whether the ticket had been cancelled.
- Even though the agency argued the traffic-ticket issue was not central to the removal, the deciding official admitted the ex parte communication influenced the credibility assessment.
On these facts, the MSPB affirmed the finding that the removal decision was constitutionally flawed.
Why This Matters for Federal Employees
A removal case isn’t only about the underlying allegations—it’s also about whether the process was fair. When a deciding official considers extra information behind the scenes, it can change the outcome in subtle ways, especially if the official decides the employee is “not credible.”
This decision is also a reminder that:
- Credibility determinations can be decisive. If a deciding official uses undisclosed information to conclude an employee was untruthful, that conclusion can spill over into other charges.
- Interim relief is supposed to reduce hardship. Even when an agency ultimately complies, delays can create real-world financial stress—exactly what interim relief is meant to prevent.
- Procedural rules are not “technicalities.” They exist to ensure that federal employees can respond meaningfully before being deprived of a job.
Key Takeaways
- Recognize that ex parte communications can create a due process violation when they add new, important evidence. Track what evidence was actually provided to you during the proposal-and-reply stage.
- Focus on whether undisclosed information affected credibility or the penalty decision. Document interim relief problems promptly and in writing if an initial decision orders relief.
- Preserve all proposal notices, replies, exhibits, and decision letters in one organized file. Ask (politely and professionally) for clarification when decision letters reference facts you did not see in the record.
Practical Next Steps
If you are facing discipline, removal, or an MSPB appeal, a few practical steps can help you stay grounded and protect your options:
- Preserve evidence. Save emails, texts, Teams messages, calendar entries, travel logs, and any policy documents you were expected to follow.
- Build a timeline. Create a dated, factual chronology of events (proposal date, reply date, key meetings, decision date, and any interim relief orders).
- Identify witnesses. Write down names and what each person observed (stick to facts, not conclusions).
- Keep communications professional. Assume every message could be read later by a third party.
- Request the record. When appropriate, ask for the materials the agency relied on so you can respond to the evidence, not rumors.
- Watch deadlines. Federal-sector deadlines can be short, and missing one can limit your ability to challenge an action.
- Get informed about forums. Some disputes go through Merit Systems Protection Board (MSPB) appeals, while others proceed through the EEO process—sometimes both.
- Consider the overlap. If disability, leave, or accommodation issues are part of your situation, learning about FMLA and disability discrimination may help you ask better questions.
- Know where whistleblowing fits. If your concerns involve protected disclosures, Office of Special Counsel (OSC) complaints may be a separate track to understand.
For readers who want to review primary sources, the MSPB official site and OSC official site can provide general background. If your issue involves the federal-sector EEO process, an EEOC overview and the regulations in eCFR 29 CFR Part 1614 may also be useful context. And if you are trying to understand reprisal concepts, EEOC retaliation is another helpful reference point.
A Word From Southworth PC Leadership
“When your livelihood is on the line, you deserve a process you can actually participate in—where the decision is based on the record you had a fair chance to answer.” — Lydia Taylor, Co-Owner of Southworth PC
How Federal Employment Attorneys Can Help
In many cases, counsel can help federal employees make sense of the record, identify procedural problems (like undisclosed evidence), and present a clear, organized narrative to the tribunal reviewing the action.
Depending on the situation, federal employment lawyers may review proposal and decision letters for due process concerns, evaluate whether the agency followed MSPB procedures in a removal or suspension, prepare exhibits, witness lists, and hearing strategy for appeals, advise on settlement considerations and practical risk management, and coordinate strategy when EEO allegations or protected activity may also be involved.
In removal cases, many employees look for MSPB lawyers who understand how “new and material” evidence issues can affect credibility and penalty analysis. And when the dispute involves claims that resemble MSPB wrongful termination, counsel can help frame the issues in a disciplined, evidence-based way.
Separately, some federal employees also consult a federal employee EEO attorney when discrimination statutes may apply, or a federal employee retaliation attorney when they believe protected activity is being used against them. (Those issues were not specified as claims in this MSPB due process decision.)
Working with federal employee attorneys can be especially valuable when the situation involves multiple moving parts: procedural challenges, credibility disputes, and potential parallel processes. If you’re looking for attorneys for federal employees who understand how due process issues can shape removal outcomes, it can help to speak with someone who regularly works inside these systems.
Talk With Our Team
Southworth PC is a firm of attorneys for federal employees, serving federal employees nationwide and abroad. If you want to talk with practitioners about what your paperwork means and what questions to ask next, we’re here to listen.
Use the contact form below to reach Southworth PC.
FAQ
What is an ex parte communication in an MSPB removal case?
An ex parte communication is information provided to the deciding official outside the employee’s notice-and-response process. The key issue is whether it adds new and material information the employee did not get a fair chance to answer.
Why does credibility matter so much in federal discipline cases?
Credibility can influence how a deciding official interprets disputed facts across multiple charges. In the decision discussed here, the MSPB emphasized that undisclosed information affected the deciding official’s view of the employee’s credibility.
What do MSPB Attorneys look for when reviewing a due process issue?
They often look for signs that the deciding official relied on evidence the employee never received, especially information used to resolve disputed facts or assess credibility. They also examine whether the employee had a meaningful opportunity to respond.
Can the MSPB order back pay after reversing a removal?
Yes. In this decision, the MSPB ordered the agency to cancel the removal and provide back pay, interest, and benefits, with specific timeframes stated in the order.
If my case also involves disability issues, where does the Rehabilitation Act fit?
Federal employees sometimes raise disability discrimination or accommodation issues under the Rehabilitation Act. A useful starting point for background is EEOC Rehabilitation Act (Sections 501 and 505), but how it applies depends on the specific facts of a case.
Disclaimer
This post is for informational purposes only and is not legal advice. Reading this post does not create an attorney-client relationship. Outcomes depend on the specific facts and procedural history of each matter. Southworth PC did not represent any party in this matter. Southworth PC handles matters for federal employees.