Boss v. Dhs , 908 F.3d 1278 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
LEONARD BOSS,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2017-2231
______________________
Petition for review of an arbitrator’s decision from the
Federal Mediation and Conciliation Service in FMCS
Case No. 13-50967-6 by Michael D. McDowell.
______________________
Decided: November 13, 2018
______________________
MICHAEL P. BARANIC, National Border Patrol Council,
San Diego, CA, argued for petitioner.
DOMENIQUE G. KIRCHNER, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent. Also
represented by JOSEPH H. HUNT, ROBERT E. KIRSCHMAN,
JR., CLAUDIA BURKE.
______________________
Before DYK, O’MALLEY, and STOLL, Circuit Judges.
2 BOSS v. DHS
STOLL, Circuit Judge.
Mr. Leonard Boss, a U.S. Border Patrol Agent, chal-
lenges a 15-day suspension imposed by his employing
agency, Customs and Border Patrol (“CBP”). The suspen-
sion was based on three charges. The arbitrator vacated
Charge One after finding that the deciding official violat-
ed Mr. Boss’s procedural due process rights, and he then
reduced the suspension to ten days. Mr. Boss admits that
Charges Two and Three, which the arbitrator did not
vacate, are unrelated to the alleged due process violation.
Nevertheless, he argues on appeal that Charges Two and
Three should fall with Charge One. We do not agree. We
hold that the arbitrator properly treated the three charg-
es separately and independently. Accordingly, we affirm.
BACKGROUND
In December 2011, the CBP Discipline Review Board
sent Mr. Boss a proposed 30-day suspension based on
three disciplinary infraction charges: (1) failure to follow
policy related to overtime sheets, (2) failure to follow
supervisory instructions, and (3) conduct unbecoming a
U.S. Border Patrol Agent. Mr. Boss protested the pro-
posed 30-day suspension. Accordingly, the deciding
official began an investigation. The deciding official
interviewed witnesses and received argument from both
the agency and Mr. Boss. On October 26, 2012, the decid-
ing official sent Mr. Boss a decision letter, concluding that
Mr. Boss should be disciplined on all three charges, but
reducing the suspension to 15 days.
Mr. Boss contested the deciding official’s decision by
requesting arbitration. During the arbitration hearing,
the deciding official admitted that he had considered
three documents that had not been provided to Mr. Boss
or his union. All three documents were various agencies’
policies regarding administratively uncontrollable over-
time pay.
BOSS v. DHS 3
It is undisputed that the deciding official considered
the documents without disclosing them to Mr. Boss or his
union. Indeed, the government did not give the docu-
ments to Mr. Boss or his union until the arbitration
proceeding. During arbitration, Mr. Boss protested that
the agency therefore violated his constitutional and
contractual due process rights. The arbitrator agreed
that the agency violated the contractual due process
provision, and vacated Charge One without reaching the
constitutional due process objection as it related to
Charge One.
The arbitrator found, and Mr. Boss agrees, that all
three undisclosed documents “solely relate to”
Charge One. J.A. 12; Oral Arg. at 3:06–3:21, http://oralar
guments.cafc.uscourts.gov/default.aspx?fl=2017-2231.mp3;
see also id. at 3:41–3:55. Accordingly, the arbitrator
analyzed Charges Two and Three on their merits, appar-
ently concluding that he need not address Mr. Boss’s
contractual and constitutional due process arguments.
Ultimately, the arbitrator concluded that the agency
carried its burden of proof for Charges Two and Three.
Having resolved Charges Two and Three on the mer-
its, the arbitrator turned to the proposed 15-day suspen-
sion. The agency bore the burden of showing the
propriety of the 15-day suspension, which the arbitrator
reviewed under the applicable Douglas factors. See
Douglas v. Veterans Admin., 5 M.S.P.B. 313 (1981).
Balancing those factors and noting that he had vacated
Charge One, the arbitrator reduced the discipline to a 10-
day suspension. J.A. 31.
Mr. Boss appealed to this court. He argues that the
arbitrator should have completely set aside the discipline
until the agency conducted “a new constitutionally-correct
disciplinary or adverse action procedure.” Appellant Br. 2.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
4 BOSS v. DHS
DISCUSSION
I
We review an arbitrator’s award pursuant to 5 U.S.C.
§ 7121, “in the same manner and under the same condi-
tions as if the matter had been decided by the [Merit
Systems Protection] Board.” 5 U.S.C. § 7121(f); Dixon v.
Dep’t of Transp., 8 F.3d 798, 803 (Fed. Cir. 1993). Thus,
we affirm the arbitrator’s decision unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence[.]” 5 U.S.C. § 7703(c); Dixon, 8 F.3d at 803. “[W]e
must reverse an arbitrator’s decision if it is not in accord-
ance with the requirements of the Due Process Clause of
the Fifth Amendment or any other constitutional provi-
sion.” Young v. Dep’t of Hous. & Urban Dev., 706 F.3d
1372, 1376 (Fed. Cir. 2013) (citing Ward v. U.S. Postal
Serv., 634 F.3d 1274, 1278 (Fed. Cir. 2011)). Mr. Boss
bears the burden of establishing that the arbitrator
committed reversible error. See Fernandez v. Dep’t of the
Army, 234 F.3d 553, 555 (Fed. Cir. 2000).
II
Although Mr. Boss agrees that Charges Two and
Three were untainted by any procedural error, Mr. Boss
asserts that because the deciding official violated his
constitutional right to procedural due process as to
Charge One, the Board should entirely set aside his
discipline until the agency conducts a new, constitutional-
ly correct disciplinary procedure. We disagree.
A
We begin with a review of the law proscribing ex parte
communications in employment discipline. In Cleveland
Board of Education v. Loudermill, 470 U.S. 532, 542
(1985), the Supreme Court explained that before a public
BOSS v. DHS 5
employee can be deprived of his property interest in
continued employment, he must receive notice and an
opportunity to respond:
The tenured public employee is entitled to oral or
written notice of the charges against him, an ex-
planation of the employer’s evidence, and an op-
portunity to present his side of the story. . . . To
require more than this prior to termination would
intrude to an unwarranted extent on the govern-
ment’s interest in quickly removing an unsatisfac-
tory employee.
Loudermill, 470 U.S. at 546 (emphasis added).
In Stone v. F.D.I.C., 179 F.3d 1368 (Fed. Cir. 1999),
we applied Loudermill’s requirements—including that the
employee receive an explanation of the employer’s evi-
dence—to ex parte communications. We held that “[t]he
introduction of new and material information by means of
ex parte communications to the deciding official under-
mines the public employee’s constitutional due process
guarantee of notice (both of the charges and of the em-
ployer’s evidence) and the opportunity to respond.” Id.
at 1376. Stone provided a three-factor test to assess
whether a particular ex parte communication violates due
process: (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. at 1377.
6 BOSS v. DHS
B
The parties dispute whether the contractual due pro-
cess violation as to vacated Charge One 1 mandates a full,
new disciplinary review based on Charges Two and Three.
Mr. Boss relies on our holding in Stone that, if there is a
constitutional due process violation, “the former employee
is entitled to a new constitutionally correct removal
procedure.” Id. He further relies on our precedent in
Sullivan v. Department of the Navy, 720 F.2d 1266, 1274
(Fed. Cir. 1983), and Ryder v. United States, 585 F.2d 482,
487–88 (Ct. Cl. 1978) (superseded by statute as noted in
Adams v. Dep’t of Transp., F.A.A., 735 F.2d 488, 496
(Fed. Cir. 1984) (Nies, J., concurring)), for the proposition
that, when a procedural due process violation has oc-
curred because of ex parte communications, such a viola-
tion is not subject to the harmless error test. Thus,
Mr. Boss argues, all the charges should fall together.
The government responds that Mr. Boss cites no au-
thority for the contention that a notice violation pertain-
ing to one charge would require that the arbitrator vacate
other charges of misconduct that were separate and
distinct. Appellee Br. 41–42. As the government ex-
plains, analysis of the Stone factors serves to ensure the
employee’s notice of the charges, explain the government’s
evidence, provide the employee an opportunity to respond,
and protect the deciding official’s objectivity. Id. at 41
(citing Stone, 179 F.3d at 1376). Furthermore, the gov-
ernment argues, there is no legal basis that would require
the arbitrator to vacate Charges Two and Three for an
alleged constitutional violation of insufficient notice that
1 Here, neither party disputes that the arbitrator
properly vacated Charge One based on the contractual
due process claim. Having vacated Charge One, there
was no need for the arbitrator to reach the constitutional
due process claim relating to the vacated charge.
BOSS v. DHS 7
Mr. Boss admits pertained solely to Charge One. Id.
at 42. We agree. We hold that the constitutional due
process analysis should be applied on a charge-by-charge
basis. This is particularly so in this case, where it is
conceded that the undisclosed documents were not mate-
rial to Charges Two and Three. See id. Such an approach
is consistent with the purposes behind Loudermill and
Stone.
The concept of procedural fairness is the ultimate fo-
cus of the Stone inquiry and is also our focus here. As this
court recognized in Stone, “not every ex parte communica-
tion is a procedural defect so substantial and so likely to
cause prejudice that it undermines the due process guar-
antee and entitles the claimant to an entirely new admin-
istrative proceeding.” 179 F.3d at 1376–77. Only ex parte
communications that introduce new and material infor-
mation likely to result in undue pressure on the deciding
official to rule in a particular manner will violate the due
process guarantee of notice. Id. at 1377. In this case, it is
difficult to see how the undisclosed documents relevant
only to Charge One could result in undue pressure on the
deciding official in his analysis of Charges Two and Three.
We acknowledge our holding in Stone that “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. (first citing Sullivan,
720 F.2d at 1274; then citing Ryder, 585 F.2d at 488).
That prohibition on applying the harmless error test,
however, is directed to foreclosing the argument that an
employee would have been removed from his position on
the merits even without the procedural defect in his
firing. Sullivan, 720 F.2d at 1273–74 (citing Ryder,
585 F.2d at 486–87). We do not fall into that trap here,
because we do not analyze whether Mr. Boss would have
been disciplined for Charge One even without the alleged
procedural defect.
8 BOSS v. DHS
Instead, the analysis we apply is that, by the admis-
sion of the parties, the challenged documents were not
relevant, new, or material to the remaining charges. Oral
Arg. at 3:41. Thus, they were unlikely to cause the kind
of prejudice the court was concerned about in Stone.
Indeed, in this case, the arbitrator simply determined how
long of a suspension Charges Two and Three, standing
alone, would merit. Furthermore, Stone is of limited
applicability here because it only involved one charge,
whereas this case involves multiple, distinct charges.
We note, too, that post-Stone, the Supreme Court in
2009 clarified how courts should apply harmless error:
The federal “harmless-error” statute, now codified
at 28 U.S.C. § 2111, tells courts to review cases for
errors of law “without regard to errors” that do
not affect the parties’ “substantial rights.” That
language seeks to prevent appellate courts from
becoming “ ‘impregnable citadels of technicality,’ ”
[Kotteakos v. United States, 328 U.S. 750, 759
(1946)]. And we have read it as expressing a con-
gressional preference for determining “harmless
error” without the use of presumptions insofar as
those presumptions may lead courts to find an er-
ror harmful, when, in fact, in the particular case
before the court, it is not.
Shinseki v. Sanders, 556 U.S. 396, 407–08 (2009). Adopt-
ing Mr. Boss’s approach of vacating the entire proceeding
without undertaking a charge-by-charge analysis would
“increase the likelihood of reversal in cases where, in
fact, the error is harmless,” contrary to the Supreme
Court’s admonition. Id. at 409. Therefore, we reject
Mr. Boss’s invitation to vacate the entire proceeding. In
the absence of evidence indicating that the procedural
defect tainted the decision-making on the other charges,
or circumstances where the charges are so factually
interrelated that they cannot be fairly separated, we hold
BOSS v. DHS 9
that an error as to one charge can be harmless as to the
other charges.
Our holding is further supported by analogous cases
addressing constitutional due process errors in the crimi-
nal context. In United States v. Job, the Ninth Circuit
held that evidence obtained from an unconstitutional
search contributed only to the verdict on one count, so the
verdict on the other count was allowed to stand. 871 F.3d
852, 865–67 (9th Cir. 2017) (concluding beyond a reason-
able doubt that the admission of the evidence did not
contribute to the verdict on the second count). In United
States v. Cameron, the First Circuit upheld certain counts
of the conviction notwithstanding that certain evidence
had been admitted in violation of the defendant’s Con-
frontation Clause rights because the evidence was not
even relevant, much less “central,” to those counts.
699 F.3d 621, 627, 652–53 (1st Cir. 2012). Because the
defendant’s trial was a bench trial, the convictions were
not tainted with any “spillover” prejudice from the im-
properly admitted records. See id. at 652 (citing United
States v. Meises, 645 F.3d 5, 24 n.26 (1st Cir. 2011) (“Con-
stitutional errors, such as a Confrontation Clause viola-
tion, require reversal unless shown to be harmless beyond
a reasonable doubt.”)). Other circuits have held similarly.
See Earhart v. Konteh, 589 F.3d 337, 346, 351 (6th Cir.
2009) (holding defendant not entitled to habeas relief as
to four charges on which he was convicted, but granting
as to one charge); United States v. Brooks, 772 F.3d 1161,
1171–73 (9th Cir. 2014) (holding procedural due process
error harmless with respect to two of three counts for
which defendant was convicted); United States v. Kizzee,
877 F.3d 650, 661–62, 661 n.4 (5th Cir. 2017) (holding
disputed testimonial statements irrelevant to one of three
counts for which defendant was convicted); United States
v. Smith, 640 F.3d 358, 364 (D.C. Cir. 2011) (holding
Confrontation Clause error affected only one count out of
four counts of conviction).
10 BOSS v. DHS
This history of analyzing due process violations
charge-by-charge in the criminal context and its ac-
ceptance in the Federal Judiciary supports our decision to
take the same approach when analyzing alleged constitu-
tional due process errors in the civil context. Cf. Global-
Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766–68
(2011) (extending willful blindness from a criminal con-
text to civil lawsuits for induced patent infringement).
Nonetheless, Mr. Boss asserts that the discipline
should be entirely set aside. He posits that due process
cannot be analyzed on a charge-by-charge basis because
this court has never before considered or endorsed such
an approach. Appellant Reply Br. 5–7. Mr. Boss relies on
Young for his argument that he is entitled to an entirely
new proceeding on Charges Two and Three because there
was an alleged constitutional due process violation on
Charge One. See Young, 706 F.3d 1372. In Young, a
deciding official received new and material information
regarding a single charge by means of ex parte communi-
cations. We held that the ex parte communications violat-
ed the employee’s due process rights, so the employee was
entitled to a new, constitutionally correct proceeding. Id.
at 1378. We find Mr. Boss’s reliance on Young misplaced
because Young did not involve multiple charges with
distinct facts. Here, we would apply Young’s single-
charge analysis if we were considering Charge One.
Mr. Boss concedes that the undisclosed documents do not
apply to Charges Two and Three. Because the alleged
constitutional due process violation applied only to
Charge One, which the arbitrator vacated, Young does not
require a new proceeding on Charges Two or Three.
Mr. Boss also argues that the Merit Systems Protec-
tion Board has consistently held that, if the Administra-
tive Judge finds lack of due process, the merits of the
adverse action are wholly disregarded under Stone, and
the Administrative Judge should not make alternate
findings on the merits of the case. We acknowledge that
BOSS v. DHS 11
the Board has so held in single-charge cases and in multi-
charge cases where the error has infected all the charges.
Although we are not bound by them, we address the
specific Board decisions cited by Mr. Boss in turn.
First, Mr. Boss’s reliance on the Board’s decision in
Giannantonio v. United States Postal Service,
111 M.S.P.R. 99, 101 ¶ 5 (2009), is misplaced because it,
like Stone, only involved a single charge. There, the
Board found that the Administrative Judge’s “alternative”
finding was actually a contradictory finding on the merits,
that is, a finding that assuming no due process violation,
the agency proved the charge. As discussed above, we do
not undertake the hypothetical of whether, if there had
been no due process violation, the agency would have
proven Charge One. Instead, we reason that, because the
alleged due process violation was not relevant to Charg-
es Two and Three, those charges could not have been
infected.
Nor is Mr. Boss’s reliance on Camero v. United States,
Sullivan, and Ryder persuasive. In those cases, the “taint
of ex parte communications from an adversary vitiated the
entire removal proceeding.” Ryder, 585 F.2d at 486
(discussing Camero v. United States, 375 F.2d 777 (Ct. Cl.
1967)); see also Sullivan, 720 F.2d at 1272 (citing Ryder
for this proposition). In those cases, unlike here, the due
process violation was found or admitted to affect all the
charges in the case. For example, the ex parte communi-
cation in Ryder involved a memo from the employee’s
superior sent to the deciding official recommending a
particular decision, which obviously impacted all the
charges. The undisclosed documents here do not raise
such a risk as it is undisputed that they did not relate to
Charges Two and Three.
CONCLUSION
We see no error in the arbitrator’s application of due
process on a charge-by-charge basis in this case. We
12 BOSS v. DHS
conclude that there is no legal basis to vacate Charg-
es Two and Three as a remedy for an alleged notice viola-
tion that was only relevant to Charge One. We do not
find Mr. Boss’s remaining arguments persuasive. Accord-
ingly, we affirm.
AFFIRMED
COSTS
No costs.