Hull v. Department of the Air Force , 374 F. App'x 981 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3210
TRAVIS HULL,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
Tiffany L. Malin, Minahan & Muther, P.C., of Denver, Colorado, for petitioner.
Hilliary A. Stern, Senior Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson,
Director, and Todd M. Hughes, Deputy Director.
Arbitrator’s decision
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3210
TRAVIS HULL,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
Petition for review of an arbitrator’s decision by Gary L. Axon.
____________________
DECIDED: May 7, 2010
____________________
Before RADER, GAJARSA, and PROST, Circuit Judges.
PER CURIAM.
Travis Hull, petitioner, appeals the decision of Arbitrator Gary L. Axon sustaining
the decision of the Department of the Air Force (the “Agency”) to remove him from
federal service. On appeal, Hull has raised only one issue: whether the Arbitrator erred
in sustaining the Agency’s removal of Hull despite an ex parte communication by the
deciding official. For the reasons noted, we affirm.
BACKGROUND
Prior to his removal, Hull was employed as a boiler room operator at Hill Air
Force Base, Utah. The incident that led to Hull’s removal took place on January 30,
2008, when a co-worker, Randy Wolf, was called in to repair the boilers. When Wolf
began working on the boilers, he took out a cigarette and lit it. Hull told Wolf that he
could not smoke in the boiler plant, and the two had a brief verbal exchange. Hull and
Wolf give conflicting stories of what transpired next, but both agree that Hull ultimately
pushed Wolf backwards into a stationary ladder. As a result, Wolf bruised his ribs and
muscles and consequently missed sixty-three hours of work.
Wolf reported the incident to management officials and the United States Air
Force Security Police conducted an investigation. On February 27, 2008, the Agency
issued Hull a Notice of Proposed Removal based on offenses of: (1) disruption in the
work place, (2) disregard of directives, and (3) conduct unbecoming of a federal
employee. The Agency issued a final Decision to Remove on April 25, 2008, citing the
same offenses recorded in the Notice of Proposed Removal. On March 12, 2008, the
deciding official conducted an ex parte communication with Wolf, of which Hull was not
notified.
As an employee covered by a labor union agreement, Hull had the option to
either appeal his removal to the Merit Systems Protection Board (“MSPB”) or to follow
the negotiated arbitration procedure in his labor agreement. 5 U.S.C. § 7121(d) (2006).
Hull chose the latter, and a hearing was held before the Arbitrator where both parties
were able to present evidence and arguments in support of their positions. It was
during the arbitration hearing that Hull first learned of the deciding official’s ex parte
communication. The Arbitrator, however, found that no new and material facts were
elicited during the ex parte communication, and therefore Hull was not deprived of his
due process rights. The Arbitrator affirmed the decision of the Agency to remove Hull
2009-3210 2
based on the reasons cited in the Decision to Remove and Notice of Proposed
Removal. Hull now appeals the Arbitrator’s decision to this court.
DISCUSSION
This court has jurisdiction over the appeal pursuant to 5 U.S.C. §§ 7121(f) and
7703. We review an arbitrator’s decision as if the matter had been decided by the
MSPB. 5 U.S.C. § 7121(f); Zingg v. Dep’t of the Treasury, 388 F.3d 839, 842 (Fed. Cir.
2004). Thus, we may reverse an arbitrator’s decision only if 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).
The only issue Hull raises on appeal is whether the deciding official violated
Hull’s Fifth Amendment due process rights when the deciding official conducted an ex
parte communication of which Hull was not informed. This court has held that “[t]he
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 (both of the charges and of the employer’s evidence) and the
opportunity to respond.” Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368, 1376 (Fed.
Cir. 1999). We emphasized, however, that not every ex parte communication violates
due process; rather only ex parte communications providing “new and material
information” violate the due process guarantee of notice. Id. at 1376–77.
As the arbitrator correctly found, the deciding official’s ex parte communications
provided no “new and material information.” Hull points to statements Wolf made during
the ex parte communication that he “would not work in a boiler plant with Mr. Hull unless
2009-3210 3
escorted” as the only new, non-cumulative information. However, the Arbitrator properly
found that these statements were not material because the Notice of Proposed
Removal and the Decision to Remove cite only Hull’s disruption in the work place,
disregard for directives, and conduct unbecoming a federal employee. There is nothing
in either notice that suggests the deciding official’s decision was based on Wolf’s
unwillingness to work with Hull.
This court finds that the Arbitrator’s decision was not arbitrary or capricious, but
rather is supported by substantial evidence. We therefore affirm.
No costs.
2009-3210 4