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


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  •                         NOTE: This disposition is nonprecedential.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    NOTE: This disposition is nonprecedential.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
    

Document Info

Docket Number: 2009-3210

Citation Numbers: 374 F. App'x 981

Judges: Rader, Gajarsa, Prost

Filed Date: 5/7/2010

Precedential Status: Non-Precedential

Modified Date: 10/18/2024