Case: 21-1579 Document: 65 Page: 1 Filed: 09/26/2022
United States Court of Appeals
for the Federal Circuit
______________________
JACOB JOHNSON,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2021-1579
______________________
Petition for review of an arbitrator’s decision in
No. 20115-01709 by Thomas A. Cipolla.
______________________
Decided: September 26, 2022
______________________
ERIN LYNN MARTINEZ, Martinez & Martinez, PLLC, El
Paso, TX, argued for petitioner.
BRENDAN DAVID JORDAN, Civil Division, Commercial
Litigation Branch, United States Department of Justice,
Washington, DC, argued for respondent. Also represented
by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., TARA K.
HOGAN.
______________________
Before TARANTO, CHEN, and CUNNINGHAM, Circuit
Judges.
Case: 21-1579 Document: 65 Page: 2 Filed: 09/26/2022
2 JOHNSON v. AIR FORCE
CUNNINGHAM, Circuit Judge.
The Department of the Air Force fired Jacob Johnson
after he failed a random drug test. Mr. Johnson now petitions this court to review an arbitrator’s decision upholding
his termination. We conclude that the Air Force’s deciding
officer violated Mr. Johnson’s right to due process by engaging in ex parte communications about Mr. Johnson’s
case. As explained below, we reverse and remand for further proceedings.
I. BACKGROUND
Mr. Johnson worked as a firefighter at Dyess Air Force
Base from 2017 to 2019. App. 217, 229. Around March
2018, Mr. Johnson’s mother came to live with Mr. Johnson
and his family. App. 42. She was then taking around thirteen pills to treat various health issues. App. 45. Around
the same time, Mr. Johnson was also taking “seven or
eight” pills. Id.; see also App. 227–28 (Mr. Johnson’s prescription history for 2018).
As a condition of his employment, Mr. Johnson was
subject to random drug testing because the Air Force considered his position to be “sufficiently critical to the Air
Force mission or to the protection of public safety.” App.
244–45. The Air Force selected Mr. Johnson for a drug test
on October 30, 2018. Suppl. App. 121. He tested positive
for oxycodone and oxymorphone. Id. Shortly after, Mr.
Johnson informed his supervisor, Chief Gregory Ranard, of
the positive drug test and his belief that he had accidentally taken one of his mother’s pills instead of his own
prescribed medication. App. 29, 50, 100.
Chief Ranard proposed that Mr. Johnson be fired.
App. 99–100. In a letter to Mr. Johnson, he stated that the
Medical Review Officer found that “there was no legitimate
medical explanation for the positive drug results.” App. 99.
Chief Ranard also wrote that being “under the influence of
Oxycodone could impair [Mr. Johnson’s] ability to perform
[his] duties safely.” Id.
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JOHNSON v. AIR FORCE 3
The proposal to terminate Mr. Johnson was then referred to the deciding officer, Lieutenant Colonel Charles
R. Fletcher. App. 100. On May 30, 2019, Lt. Col. Fletcher
fired Mr. Johnson. App. 229. Explaining his decision, Lt.
Col. Fletcher wrote that he could not “risk the possibility of
[Mr. Johnson] coming to work again under the influence of
illicit drugs.” Id.
Mr. Johnson proceeded to challenge his removal under
his Labor Management Agreement’s grievance procedures.
App. 233. At the arbitration hearing that followed, Lt. Col.
Fletcher testified that he “just [didn’t] believe” that Mr.
Johnson accidentally took his mother’s pill. App. 32. When
asked whether Mr. Johnson’s “lack of candor was a major
part of” his decision to terminate Mr. Johnson, Lt. Col.
Fletcher responded, “[a]bsolutely.” Id. Lt. Col. Fletcher
then described how he had spoken to two family members
about Mr. Johnson’s case:
You know, I consult advisors and I make decisions.
When I heard [Mr. Johnson’s explanation], I
wanted to make sure I consulted probably my number one advisor, my wife, which is—she’s a registered nurse, and I just wanted to make sure I
wasn’t off. And I spoke to my brother-in-law, who’s
a nurse practitioner, and they confirmed that the
likelihood of that happening is slim to none.
Id. On cross-examination, he further testified about consulting his family members:
Q. And you also said that you consulted with your
wife and your brother-in-law. Correct?
A. Well, as far as the inadvertently taking someone
else’s pill, yes, I did talk to them about that.
Q. And their opinion was that Mr. Johnson was not
being truthful.
A. No, their opinion was it’s low probability of that
happening.
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4 JOHNSON v. AIR FORCE
App. 35.
In the end, the arbitrator denied Mr. Johnson’s grievance and affirmed his termination “for having a positive
test result for the metabolites of OxyContin.” App. 10. The
arbitrator concluded that Mr. Johnson’s explanation of his
positive drug test was “so fantastic it is difficult to give it
credence.” Id. He also found that Mr. Johnson’s job “involve[d] the safety of others and the security of the installation” and that a positive drug test “is a powerful indicator
of a possible problem and potential liability down the road.”
App. 9. In response to Mr. Johnson’s due process argument, the arbitrator simply stated that he found “no convincing evidence that [Mr. Johnson] was denied due
process in being able to present any and all matters in his
defense.” App. 10. Thus, the arbitrator concluded, the Air
Force “was within its rights to remove [Mr. Johnson] from
his position for having a positive test result.” Id.
Mr. Johnson appeals. Under 28 U.S.C. § 1295(a)(9), we
have jurisdiction over an appeal filed pursuant to
5 U.S.C.
§§ 7121(f) and 7703(b)(1).
II. DISCUSSION
A. Standard of Review
“We review an arbitrator’s decision under the same
standard of review that is applied to decisions from the
Merit Systems Protection Board.” Appleberry v. Dep’t of
Homeland Sec., 793 F.3d 1291, 1295 (Fed. Cir. 2015). Under this standard, “we must affirm the decision of the arbitrator 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.”
Id. “This standard of review contemplates de novo review of questions of law.”
Id. “We
must reverse an arbitrator’s decision if it is not in accordance with the requirements of the Due Process Clause of
the Fifth Amendment or any other constitutional
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JOHNSON v. AIR FORCE 5
provision.” Boss v. Dep’t of Homeland Sec.,
908 F.3d 1278,
1280 (Fed. Cir. 2018) (brackets omitted).
B. Due Process
Mr. Johnson argues that the Air Force’s termination
proceedings violated his right to due process. See, e.g.,
Pet’r’s Br. 13–24, 27–32, 34. We agree.
The Fifth Amendment guarantees that “[n]o person
shall . . . be deprived of life, liberty, or property, without
due process of law.” U.S. Const. amend. V. There are two
steps to evaluate whether a party has been deprived of
property without due process. First, we determine
“whether the litigant has a protected property interest.”
Edwards v. Shinseki, 582 F.3d 1351, 1355 (Fed. Cir. 2009).
If we conclude that the litigant has such a protected property interest, then we must ask “what process is due.” Id.
1. Property Interest
Mr. Johnson’s “federal constitutional due process claim
depends on his having a property right in continued employment.” Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368,
1374 (Fed. Cir. 1999). Mr. Johnson asserts that he has a
property interest in his job as a firefighter because he was
a “non-probationary, tenured employee.” Pet’r’s Br. 33; see
App. 215 (career report stating that Mr. Johnson was part
of “Permanent – Tenure Group 1”). The Air Force does not
argue to the contrary. See, e.g., Resp’t’s Br. 15. Because
public employees have a property interest in continued employment where the government gives them “assurances of
continued employment or conditions dismissal only for specific reasons,” we agree that Mr. Johnson had a property
interest in continued employment. See Stone,
179 F.3d at
1374. We next turn to what process he was due.
2. Ex Parte Communications
Mr. Johnson argues that Lt. Col. Fletcher’s ex parte
communications with his wife and brother-in-law deprived
Mr. Johnson of his right to due process. Pet’r’s Br. 27–32.
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6 JOHNSON v. AIR FORCE
Although not every ex parte communication is impermissible, “ex parte communications that introduce new and material information to the deciding official will violate the
due process guarantee of notice.” Stone, 179 F.3d at 1377.
To determine whether information is new and material, we
consider:
(1) “whether the ex parte communication merely introduces ‘cumulative’ information or new information;”
(2) “whether the employee knew of the error and
had a chance to respond to it;” and
(3) “whether the ex parte communications were of
the type likely to result in undue pressure upon the
deciding official to rule in a particular manner.”
Id. “Ultimately, the inquiry . . . is whether the ex parte
communication is so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such
circumstances.”
Id. When “a procedural due process violation has occurred because of ex parte communications, such
a violation is not subject to the harmless error test.”
Id.
“The concept of procedural fairness is the ultimate focus of
the Stone inquiry . . . .” Boss,
908 F.3d at 1282.
After reviewing the evidence in the record, we conclude
that the arbitrator erred in finding no violation of Mr.
Johnson’s right to due process. The first Stone factor
weighs in favor of a due process violation because it is apparent that Lt. Col. Fletcher received new—not cumulative—information from his sister and brother-in-law.
Namely, he received the opinion of two medical professionals that the possibility that Mr. Johnson accidentally took
his mother’s pill was “slim to none.” App. 32.
Although the Air Force urges us to follow Blank v. Department of the Army, 247 F.3d 1225 (Fed. Cir. 2001),
Resp’t’s Br. 42, that case is distinguishable. In Blank, we
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JOHNSON v. AIR FORCE 7
held that “[i]nvestigatory interviews and communications
that do no more than confirm or clarify pending charges do
not introduce new and material information.”
247 F.3d at
1229. There, the deciding officer “interviewed various
agency employees merely to confirm and clarify information that was already contained in the record.”
Id.
Here, by contrast, Lt. Col. Fletcher obtained new information that two medical professionals believed Mr. Johnson’s explanation to be highly unlikely. In other words,
when Lt. Col. Fletcher’s relatives allegedly “confirmed”
that the chances of Mr. Johnson taking his mother’s pill
were “slim to none,” App. 32, they were not confirming information in the record; rather, they were providing new
opinions on the evidence.
We also reject the Air Force’s argument that the ex
parte communications were permissible because they did
not change Lt. Col. Fletcher’s “existing understanding” of
Mr. Johnson’s explanation as not being credible. See
Resp’t’s Br. 42–43. A deciding officer may violate an employee’s due process rights even if the deciding officer
states that he “would have concluded that the employee
should be removed whether or not he had received the ex
parte communications.” Ward v. U.S. Postal Serv., 634
F.3d 1274, 1280 (Fed. Cir. 2011) (brackets omitted) (quoting Stone,
179 F.3d at 1373). We do not ask whether the ex
parte communications constituted harmless error. Stone,
179 F.3d at 1377. Once Lt. Col. Fletcher had received these
comments about Mr. Johnson, he had to give Mr. Johnson
an opportunity to respond to them before reaching a decision.
The remaining Stone factors similarly weigh in favor of
concluding that the ex parte communications introduced
new and material information. The Air Force acknowledges that Mr. Johnson learned of Lt. Col. Fletcher’s ex
parte communications only during the arbitration hearing,
which occurred after Mr. Johnson’s removal was final.
Resp’t’s Br. 42; see also App. 2 (showing arbitration hearing
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8 JOHNSON v. AIR FORCE
occurred on September 10, 2020, and Mr. Johnson’s removal was effective May 30, 2019). Mr. Johnson did not
have a chance to respond to comments that Lt. Col.
Fletcher’s relatives made before he was terminated. And
Lt. Col. Fletcher made clear that the communications at
issue were material, bearing on the central issue of
whether to credit Mr. Johnson’s explanation of the test results and coming from medical professionals. See App. 32.
We need not decide whether those facts themselves suffice
to find a due process violation or to find, under Stone’s third
factor, that “the ex parte communications were of the type
likely to result in undue pressure upon” Lt. Col. Fletcher.
See Stone, 179 F.3d at 1377. In this case, there is additional reason to so find. Familial bonds are often strong
and intimate, making family members arguably the most
influential people in anyone’s life. Indeed, Lt. Col. Fletcher
described his wife as his “number one advisor.” App. 32. It
is “constitutionally impermissible to allow a deciding official to receive additional material information that may
undermine the objectivity required to protect the fairness
of the process.” Stone,
179 F.3d at 1376. Once Lt. Col.
Fletcher had received the opinion of two family members—
who are also medical professionals—that Mr. Johnson’s explanation was not credible, he had to at least afford Mr.
Johnson a chance to respond to maintain the objectivity
that due process demands.
Having concluded that Lt. Col. Fletcher’s ex parte communications violated Mr. Johnson’s right to due process,
we are left to decide the remedy. Where “a serious procedural curtailment mars an adverse personnel action which
deprives the employee of pay, the court has regularly taken
the position that the defect divests the removal (or demotion) of legality, leaving the employee on the rolls of the
employing agency and entitled to his pay until proper procedural steps are taken toward removing or disciplining
him.” Id. at 1377. The goal of cancellation of an employee’s
termination is “to place the employee as nearly as possible
in the status quo ante.” Kerr v. Nat’l Endowment for the
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JOHNSON v. AIR FORCE 9
Arts,
726 F.2d 730, 733 (Fed. Cir. 1984). Because the parties have not briefed the remedy due to Mr. Johnson, we
leave it for the arbitrator to determine on remand the
proper remedy for Mr. Johnson in view of these guidelines.
If the Air Force continues to believe that Mr. Johnson
should be removed, however, it can institute an “entirely
new” and “constitutionally correct” procedure to remove
him. 1 Ward,
634 F.3d at 1279 (citing Stone,
179 F.3d at
1377).
III. CONCLUSION
We need not address Mr. Johnson’s remaining arguments because the violation of his due process rights is a
sufficient basis for reversal. See Boss, 908 F.3d at 1280.
For the reasons above, we reverse the arbitrator’s decision
upholding Mr. Johnson’s removal and remand to the arbitrator for further proceedings.
REVERSED AND REMANDED
COSTS
Costs to Petitioner.
1 Our decision turns solely on the violation of Mr.
Johnson’s due process rights. We do not express an opinion
on whether the Air Force can place Mr. Johnson on notice
leave or otherwise reassign him in accordance with Air
Force regulations while initiating new removal proceedings. See 5 U.S.C. § 6329b; cf. Paulic v. Dep’t of the Army,
No. PH–0752–14–0606–I–1, 2015 WL 502971, at ¶ 14 n.7
(M.S.P.B. Feb. 6, 2015) (declining to find whether employee
may be placed on leave following correction of removal).
