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Do v. Department of Housing & Urban Development

United States Court of Appeals, Federal Circuit

January 14, 2019

HANH DO, Petitioner

          Petition for review of the Merit Systems Protection Board in No. DC-0752-17-0149-I-1.

          Tamara Louise Miller, MillerMasciola, Washington, DC, argued for petitioner.

          Sonia W. Murphy, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Reta Emma Bezak, Reginald Thomas Blades, Jr., Robert Edward Kirschman, Jr., Joseph H. Hunt.

          Before Dyk, Reyna, and Chen, Circuit Judges.

          Dyk, Circuit Judge.

         Hanh Do petitions for review of a decision of the Merit Systems Protection Board ("Board"). The Board sustained the Department of Housing and Urban Development's ("HUD's" or "agency's") action demoting and suspending Do. In its notice of proposed action, HUD charged Do with "negligence of duty" for hiring and later promoting an employee when Do knew that the employee did not have a college degree, which the agency viewed as a requirement. On appeal, the Board agreed with Do that a college degree was not required and that the employee could alternatively qualify for the positions by having a combination of education and experience. The Board, nonetheless, sustained the charge, concluding that Do was negligent because she failed to ensure that the employee met the alternative qualification requirements.

         We hold that Do's due process rights were violated because the Board exceeded the scope of the agency's charge, relying on a new ground to sustain the discipline. We reverse and remand.


         Do has been a government employee since 1990. From 1990 to 1998, Do worked as an auditor for the Internal Revenue Service. In 1998, HUD Office of Inspector General ("OIG") hired Do as auditor in the Information Systems Audit Division. She was promoted to Assistant Director of that division and then to Director in 2003 and 2005, respectively. She held the position of Director until she was demoted on November 27, 2016.

         In November 2006, Do was responsible for selecting candidates for auditor positions in her division. Uyen Asuncion applied for a GS-11 auditor position in Do's division. At the time she applied, Asuncion was working as a GS-11 auditor at the Department of Justice ("DOJ"). Both on her resume and Questionnaire for Public Trust Positions, Asuncion claimed she had a college degree in accounting.

         In December 2006, a pre-employment background investigation revealed that Asuncion did not have a degree in accounting. Do was informed of this discrepancy and questioned Asuncion about it. It turned out that Asuncion was never awarded her degree because, even though she had completed the required coursework, her grade point average was not high enough for the university to confer the degree. Apparently, Asuncion needed to take one additional course to raise her grade point average to meet the minimum and obtain the degree.

         Asuncion told Do that she had made an honest mistake and believed that she had completed the requirements for her degree when she applied. Asuncion promised to complete an additional college course to secure her degree. After conferring with her supervisor, Do approved Asuncion's selection for the auditor position. At the same time, Do urged Asuncion to complete her degree.

         Over the next few years, Asuncion was promoted to a GS-12 auditor position and then to a GS-13 auditor position. In 2009, Do posted two GS-14 auditor positions (one of which was created with Asuncion in mind). Asuncion applied for one of the positions, and human resources flagged Asuncion "as a qualified candidate" and included her on a list of "eligible candidates" for the position. J.A. 3. Do selected Asuncion for one of the positions. At that time, Do knew that Asuncion still did not have an accounting degree.

         In 2013 or 2014, Do consulted with her supervisor regarding Asuncion's lack of degree. After consulting with human resources, Do's supervisor advised Do that Asuncion could continue as an auditor but must obtain her degree. Asuncion resigned in March 2016.

         On July 20, 2016, HUD issued a notice of proposal to demote Do from the position of Director (GS-15) to Non-supervisory Senior Auditor (GS-14) and to suspend her for fourteen days for negligence of duty. The notice alleged that Do was negligent in hiring Asuncion in 2006 and promoting her in 2009 because a college degree was "required for the position[s]," and "Asuncion . . . admitted to [Do] that she did not have her degree." J.A. 367. Do responded both in writing and orally to the agency. On November 9, 2016, after considering Do's submitted replies, the HUD deciding official issued a formal written decision, concluding that "demotion and suspension [we]re warranted and serve to promote the efficiency of the service." J.A. 355. Do was demoted and suspended effective November 27, 2016.

         Do timely appealed to the Board. After a hearing, the administrative judge sustained the agency's action. Do did not appeal to the full Board (which then lacked a quorum), and the administrative judge's decision became the final decision of the Board.

         Do petitioned for review in our court. We have jurisdiction under 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9). In reviewing the Board's decision, we must affirm the 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 regulation having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. § 7703(c); Ward v. U.S. Postal Serv., 634 F.3d 1274, 1278 (Fed. Cir. 2011). "We 'must reverse a decision of the Board if it . . . is not in accordance with the requirements of the Due Process Clause of ...

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