Federal Circuit Deems Family Medical Opinion Unlawful in Removal Case
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
The appellant, a firefighter at the Air Force, was fired after failing a drug test. Importantly, the appellant took several medications, and he lived with his mother who also took several medications. When the appellant informed his supervisor of the positive result of his drug test, he explained that he believed he had accidentally taken his mother’s medications. The appellant was subsequently fired.
The appellant challenged his removal, and, at the resulting arbitration hearing, the deciding official testified that he did not believe the appellant’s explanation that he took the wrong medicine. He further testified that he “consults advisors” in order to make decisions, and, in the appellant’s case, consulted his “number one advisor, [his] wife,” who was a registered nurse. He additionally stated that he spoke to his brother-in-law, a nurse practitioner, about the case. Both the deciding official’s wife and brother-in-law told him that likelihood of the appellant’s explanation being accurate were “slim to none.” The arbitrator denied the appellant’s grievance, and affirmed his removal.
The appellant next appealed to the United States Court of Appeals for the Federal Circuit, arguing that the Air Force’s termination proceedings—specifically, the deciding official’s family consultations—violated his right to due process. The Federal Circuit reviewed the arbitrator’s decision under the “same standard of review that is applied to decisions from the Merit Systems Protection Board.”
An arbitrator’s decision must be reversed “if it is not in accordance with the requirements of the Due Process Clause of the Fifth Amendment.” The Fifth Amendment guarantees that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” Ex parte communications that introduce new and material information to a deciding official during an adverse employment action will “violate the due process guarantee of notice.” To determine whether information is new and material, the court will consider “(1) whether the ex parte information 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.” The ultimate question is whether the ex parte communication is “substantial and so likely to cause prejudice.”
In applying this framework, the court held that the first factor weighed in the appellant’s favor because the deciding official received new, not cumulative, information. “[N]amely he received the opinion of two medical professionals.” The court distinguished this situation from the events in Blank v. Department of the Army, 247 F.3d 1225 (Fed. Cir 2001). In Blank, the government interviewed several agency employees to “confirm and clarify information that was already contained in the record.” These interviews were not held to violate due process. Here, the opinions of the deciding official’s family differed because they provided new opinions on existing evidence.
Further, the court clarified, once the deciding official received these comments, he was required to give the appellant the opportunity to respond. Here, the appellant only learned of the comments at the arbitration hearing, which occurred after his removal was already finalized. The court also noted that “familial bonds are often strong and intimate, making family members arguably the most influential people in anyone’s life.” Accordingly, the court reasoned that it was likely that the communications at issue were “of the type likely to result in undue pressure upon” the deciding official.
For these reasons, the court concluded that the deciding official’s ex parte communications violated the appellant’s right to due process, and it remanded the determination of a remedy to the arbitrator.
Find the full case here: Johnson v. Air Force.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.