Ex Parte Advice From Decisionmaker’s Wife Violates Due Process

Written on 12/10/2022

Jacob Johnson worked as an Air Force firefighter at Dyess Air Force Base from 2017 to 2019. Around March 2018, Johnson’s mother came to live with Johnson and his family. She was then taking around 13 pills to treat various health issues. Around the same time, Johnson was also taking “seven or eight” pills a day.

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.” When Johnson tested positive for oxycodone and oxymor­phone, he 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.

Ranard proposed that Johnson be fired. The proposal to terminate John­son was then referred to the deciding officer, Lieutenant Colonel Charles R. Fletcher, who fired Johnson, explaining that he could not “risk the possibility of Johnson coming to work again under the influence of illicit drugs.”

Johnson challenged his removal under his Labor Management Agree­ment’s grievance procedures. At the arbitration hearing that followed, Fletcher explained that he’d spoken to two family members about Johnson’s case: “You know, I consult advisors and I make decisions. When I heard 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.”

When an arbitrator denied John­son’s grievance, Johnson challenged the decision through the federal court system. The Federal Circuit Court of Appeals reversed the Arbitrator’s de­cision, finding that Fletcher’s conduct violated Johnson’s due process rights.

The Court explained that “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. To determine whether information is new and material, we consider whether the ex parte communication merely introduces ‘cumulative’ information or new information, whether the employee knew of the error and had a chance to respond to it, and 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.

“We conclude that the Arbitrator erred in finding no violation of John­son’s right to due process. The first factor weighs in favor of a due process violation because it is apparent that Fletcher received new – not cumulative – information from his wife and brother-in-law. Namely, he received the opinion of two medical professionals that the possibility that Johnson accidentally took his mother’s pill was ‘slim to none.’

“We reject the Air Force’s argument that the ex parte communications were permissible because they did not change Fletcher’s existing understanding of Johnson’s explanation as not being credible. 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. We do not ask whether the ex parte communications constituted harmless error. Once Fletcher had received these comments about Johnson, he had to give Johnson an opportunity to respond to them before reaching a decision.

“The remaining factors similarly weigh in favor of concluding that the ex parte communications introduced new and material information. The Air Force acknowledges that Johnson learned of Fletcher’s ex parte communications only during the arbitration hearing, which occurred after Johnson’s removal was final. Johnson did not have a chance to respond to comments that Fletcher’s relatives made before he was terminated.

“And Fletcher made clear that the communications at issue were material, bearing on the central issue of whether to credit Johnson’s explanation of the test results and coming from medical pro­fessionals. We need not decide whether those facts themselves suffice to find a due process violation or to find that the ex parte communications were of the type likely to result in undue pressure upon Fletcher. 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.

“Having concluded that Fletcher’s ex parte communications violated 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. If the Air Force continues to believe that Johnson should be removed, however, it can institute an entirely new and constitutionally correct procedure to remove him.”

Johnson v. Department of the Air Force, 2022 WL 4456279 (Fed. Cir. 2022).

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