  United States Court of Appeals
      for the Federal Circuit
                 ______________________

      FEDERAL EDUCATION ASSOCIATION –
      STATESIDE REGION, KAREN GRAVISS,
                  Petitioners

                            v.

   DEPARTMENT OF DEFENSE, DOMESTIC
 DEPENDENTS ELEMENTARY AND SECONDARY
                 SCHOOL,
                 Respondent
           ______________________

                       2015-3173
                 ______________________

    Petition for review of an arbitrator’s decision in No.
14-1024-00182-7 by Steven G. Hoffmeyer.
                  ______________________

              Decided: November 18, 2016
                ______________________

    DOROTHY LOUISE LEE, Federal Education Association
Stateside Region, Dublin, OH, argued for petitioners.

    TARA K. HOGAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., CLAUDIA
BURKE.

                 ______________________
2               FEDERAL EDUCATION ASSOCIATION   v. DEFENSE




    Before DYK, PLAGER, and REYNA, Circuit Judges.
    Opinion for the court filed by Circuit Judge DYK.
    Dissenting opinion filed by Circuit Judge PLAGER.
DYK, Circuit Judge.
     Ms. Karen Graviss petitions for review of an arbitra-
tor’s decision denying the Federal Education Association –
Stateside Region’s (“FEA”) grievance of her removal for
“inappropriate physical contact with a student.” The
arbitrator held that FEA failed to show that Ms. Graviss’s
due process rights were violated and that the Department
of Defense and Domestic Dependent Elementary and
Secondary Schools (“DDESS”) had proved by a preponder-
ance of the evidence that the removal penalty both pro-
moted the efficiency of the service and was reasonable.
We hold that Ms. Graviss’s due process rights were violat-
ed by an improper ex parte communication between a
supervisor and the deciding official. Accordingly, we
reverse and remand.
                      BACKGROUND
    Ms. Graviss has worked in the education field since
1978, primarily serving as a teacher to young special
needs children. Ms. Graviss started as a pre-school
teacher for a rehabilitation center and eventually transi-
tioned to work as a second-grade teaching assistant and
regular education teacher. From 1994 to 2008, Ms. Gra-
viss worked in the Fort Knox Educational Development
Intervention Services Program at Ireland Army Hospital.
In 2008, DDESS hired Ms. Graviss as a pre-school teacher
for special needs children at Kingsolver Elementary, part
of Fort Knox Schools, where she worked until her removal
on June 16, 2010. At Kingsolver Elementary, Ms. Graviss
taught three- and four-year-old children with disabilities
such as autism.
FEDERAL EDUCATION ASSOCIATION    v. DEFENSE                3



     The events precipitating Ms. Graviss’s removal are
recounted in detail in the arbitrator’s decision. See J.A.
804–90. For purposes of this appeal, we provide only a
brief summary. Special education teachers must make
difficult judgment calls in determining how to handle the
behavior of their special needs students. This case has its
genesis in divergent approaches to that problem.
     On January 22, 2010, Dr. Andrea McClain, Kingsolver
Elementary’s principal and Ms. Graviss’s direct supervi-
sor, issued Ms. Graviss a letter of reprimand based on an
“inappropriate interaction with a student” and “failure to
follow directives.” J.A. 691. Specifically, the letter stated
that, on January 15, 2010, Ms. Graviss and her aide had
physically carried—“under his arms” and “under his
knees”—a misbehaving general education pre-school
student who “wouldn’t come to [the principal’s] office” on
his own. Id. The letter also stated that Ms. Graviss had
emailed concerns to Dennis Labriola, the director of
special education, when Dr. McClain had previously
directed Ms. Graviss to “bring all issues directly to [her]
attention as the building principal.” Id. FEA filed a
grievance concerning the letter.
    Thereafter, on March 22, 2010, one of Ms. Graviss’s
students had an episode, which manifested in his repeat-
edly flailing his arms, kicking, and screaming. While the
other students were out at recess, Ms. Graviss employed
two methods of physical restraint on the child in an
attempt to subdue him. First, Ms. Graviss sat the child in
a bean bag chair next to a wall and rolled the chair over
itself toward the wall with the student inside. Second,
after another outburst approximately three hours later,
Ms. Graviss sat the child in a chair, pressed into the back
of the chair with her knee, and pulled on the child’s
crossed arms from behind. Ms. Graviss does not appear to
materially dispute the factual record of the events de-
scribed, but contends that such methods of restraint were
not improper. Two of Ms. Graviss’s classroom aides who
4               FEDERAL EDUCATION ASSOCIATION     v. DEFENSE



were present at the time later reported the incidents via
email to Dr. McClain. Dr. McClain then conducted an
interview with Ms. Graviss in the presence of an FEA
representative. After the interview, Dr. McClain com-
pleted and submitted a Family Advocacy Program De-
partment of Defense Education Activity (“DoDEA”)
Serious Incident Report and Alleged Child Abuse Report
to the Family Advocacy Program, which operates like
Child Protective Services for the military and investigates
institutional child abuse.
    On March 26, 2010, Dr. McClain forwarded the Seri-
ous Incident Report via email to her direct supervisor,
Community Superintendent John Todd Curkendall, who
would later serve as the deciding official in Ms. Graviss’s
removal proceedings, and his supervisor, District Super-
intendent Dr. Frank Calvano. In response to this email,
District Superintendent Dr. Calvano replied to both Dr.
McClain and Mr. Curkendall (“the March 26 email”),
stating, “I think this is going to come back with a ruling of
no fowl [sic]. 1 Regardless, we need to try and terminate
her for repeated use of corporeal [sic] punishment and for
insubordination . . . .” J.A. 630 (emphasis added). Dr.
McClain quickly replied to both Dr. Calvano and Mr.
Curkendall, stating, “Luckily, we have the two witnesses.
I strongly support termination. This would match the
DoDEA 1435.1 reg for a second offense of insubordination




    1   By “no fo[u]l,” it appears that Dr. Calvano was
referencing the Family Advocacy Program investigation,
which was separate from Ms. Graviss’s removal proceed-
ings and followed from Dr. McClain’s mandatory submis-
sion of Serious Incident and Child Abuse reports. See J.A.
366.
FEDERAL EDUCATION ASSOCIATION   v. DEFENSE              5



and the one on causing bodily harm. The second offenses
on those both say suspension or removal.” Id.
     On April 12, 2010, Dr. McClain issued a notice of
proposed removal for Ms. Graviss. J.A. 708–09. The
notice alleged a single charge of “inappropriate physical
contact with a student” based on the instances of physical
restraint discussed above. The notice did not charge Ms.
Graviss with either of the more serious charges of cor-
poral punishment or insubordination discussed by Dr.
Calvano in the March 26 email. Id. The notice informed
Ms. Graviss that she could reply both in writing and
orally to Mr. Curkendall, who would serve as the deciding
official. J.A. 709. Ms. Graviss, represented by FEA as
her union representative, responded both in writing and
orally to Mr. Curkendall. Neither Ms. Graviss nor FEA
was informed at the time about the March 26 email
correspondence between Dr. McClain, Dr. Calvano, and
Mr. Curkendall.
     On June 14, 2010, after considering Ms. Graviss’s
submitted replies, Mr. Curkendall issued a formal written
decision concluding that “the proposed removal and the
charge of inappropriate physical contact with a student
are fully supported by a preponderance of the evi-
dence. . . . [The removal] is reasonable and promotes the
efficiency of the service.” J.A. 797. Ms. Graviss was
removed from her position effective June 16, 2010.
    FEA filed a grievance challenging Ms. Graviss’s re-
moval on September 9, 2010. DDESS denied the griev-
ance, and FEA invoked arbitration. During discovery
proceedings leading up to the arbitration, Ms. Graviss
learned for the first time about the March 26 email when
DDESS produced a copy in discovery. The arbitrator then
held a hearing on October 22 and 23, 2014, at which he
heard testimony from many witnesses, including Mr.
Curkendall and Dr. Calvano. Mr. Curkendall testified
that, although he considered “everything relative to this
6               FEDERAL EDUCATION ASSOCIATION     v. DEFENSE



case” in making his decision, his direct supervisor Dr.
Calvano “did not direct him how to rule in this matter” in
the March 26 email. J.A. 826. Mr. Curkendall further
testified that he had issued recent disciplinary decisions
contrary to Dr. Calvano’s views—including, in this case,
imposing lesser punishment than Dr. Calvano had sug-
gested. See J.A. 861.
      Dr. Calvano similarly testified that he “never issued a
directive or an order on how Mr. Curkendall should rule
on a case,” including with respect to Ms. Graviss. J.A.
827. Dr. Calvano further testified that “I’m responsible
for everything and sometimes I make direct decisions and
give direct orders and sometimes I opine on matters with
respect to sharing my views with proposing officials or
deciding officials . . . . Sometimes folks agree with me and
sometimes they don’t.” J.A. 861. Dr. Calvano explained
that typically, when he does “opine on proposed disci-
pline,” he communicates his opinion to Nancy Gilley, the
labor relations specialist. J.A. 827–28. He testified that
“I typically, if you will, am overridden by Nancy Gilley
. . . . She and I oftentimes agree; sometimes we don’t.”
J.A. 828. On cross-examination, it became apparent that
Nancy Gilley, unlike Mr. Curkendall, does not report to
Dr. Calvano. See J.A. 861–62.
    In his final written decision, the arbitrator rejected
Ms. Graviss’s first due process argument that the March
26 email should have been disclosed to her at an earlier
stage of the proceedings. The arbitrator held that the
argument “lacks logic” because even if the March 26 email
had been disclosed at an earlier stage, the disclosure
would not have eliminated the alleged bias. J.A. 863.
The arbitrator also rejected Ms. Graviss’s due process
argument that the March 26 email constituted an im-
proper ex parte communication under Stone v. Federal
Deposit Insurance Corp., 179 F.3d 1368 (Fed. Cir. 1999).
The arbitrator explained, “[i]f Calvano’s email was in-
tended to be influential on the proposing or deciding
FEDERAL EDUCATION ASSOCIATION   v. DEFENSE              7



official it was wholly ineffective. Were those officials
influenced by the email they would have had ample
opportunity and ability to modify the charges, to rewrite
the unwritten, as yet, Notice of Proposed Removal, which
they did not do.” J.A. 863. The arbitrator then held,
without any detailed analysis of the three Stone factors
discussed below, that “unlike in Stone, the Calvano
statement contains no ‘new and material information.’”
Id. The arbitrator found that the evidence “do[es] not
show Curkendall was not the decider in this matter. The
full record shows Curkendall was the independent decider
required under case law.” J.A. 864. 2
     Ms. Graviss petitions for review in our court. We
have jurisdiction under 28 U.S.C. § 1295(a)(9); see also 5
U.S.C. §§ 7121(b)(2)(B), 7703(b)(1). In reviewing the
arbitration award, we apply the same standard that is
applied to appeals from the Merit Systems Protection
Board (“Board”). 5 U.S.C. § 7121(f); Young v. Dep’t of
Hous. & Urban Dev., 706 F.3d 1372, 1375 (Fed. Cir.
2013). Under that standard, we must affirm the arbitra-
tor’s decision unless it is (1) arbitrary, capricious, an



   2    The arbitrator also concluded that “[e]ven if, ar-
guably, [the March 26 email] was ‘material relied on in
proposing removal’ the alleged failure to immediately
provide to [Ms. Graviss] was harmless error as [Ms.
Graviss] had the information at the hearing, and oppor-
tunity to challenge and address it and did so.” J.A. 889.
As the government concedes, the arbitrator’s invocation of
a harmless error test here was erroneous. As discussed
below, in Stone we held that “when a procedural due
process violation has occurred because of ex parte commu-
nications, such a violation is not subject to the harmless
error test.” 179 F.3d at 1377.
8               FEDERAL EDUCATION ASSOCIATION    v. DEFENSE



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) unsupport-
ed by substantial evidence. 5 U.S.C. § 7703(c); Young, 706
F.3d at 1375–76. “In addition, we must reverse an arbi-
trator’s decision if it is not in accordance with the re-
quirements of the Due Process Clause of the Fifth
Amendment or any other constitutional provision.”
Young, 706 F.3d at 1376 (citing Ward v. U.S. Postal Serv.,
634 F.3d 1274, 1278 (Fed. Cir. 2011)).
                       DISCUSSION
        Public employees like Ms. Graviss possess a con-
stitutionally protected property right in their continued
employment. See, e.g., Arnett v. Kennedy, 416 U.S. 134,
155 (1974); Stone, 179 F.3d at 1374. In Cleveland Board
of Education v. Loudermill, the Supreme Court held that
pre-deprivation due process is required in public employee
discharge cases, stating,
    [w]e have described the root requirement of the
    Due Process Clause as being that an individual be
    given an opportunity for a hearing before he is de-
    prived of any significant property interest. This
    principle requires some kind of a hearing prior to
    the discharge of an employee.
470 U.S. 532, 542 (1985) (internal quotation marks,
footnote, and citations omitted). “[W]here a serious
procedural curtailment mars an adverse personnel action
which deprives the employee of pay, . . . the defect divests
the removal . . . of legality . . . . In that situation, the
merits of the adverse action are wholly disregarded.”
Sullivan v. Dep’t of Navy, 720 F.2d 1266, 1274 (Fed. Cir.
1983) (quoting Ryder v. United States, 585 F.2d 482, 487–
88 (Ct. Cl. 1978)).
   Our decision in Stone v. Federal Deposit Insurance
Corp. sets forth the constitutional due process require-
FEDERAL EDUCATION ASSOCIATION   v. DEFENSE                9



ments that apply to cases such as this involving ex parte
communications to the deciding official. 179 F.3d at 1376.
In fact, Stone involved nearly identical circumstances to
those of this case, as the government largely concedes.
Mr. Stone was removed from his federal position, and he
appealed to the Board. Id. at 1372. During the discovery
process, Mr. Stone learned for the first time that the
deciding official had received an ex parte memorandum
from the proposing official and another ex parte memo-
randum from a third government employee, both urging
that Mr. Stone be removed. Id. at 1372–73. In an affida-
vit, the deciding official stated that he would have con-
cluded that Mr. Stone should be removed “whether or not
he had seen” the ex parte memorandum from the propos-
ing official. Id. at 1373. The Board denied Mr. Stone’s
appeal, and he petitioned for review in our court. Id.
    We 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 consti-
tutional due process guarantee of notice (both of the
charges and of the employer’s evidence) and the oppor-
tunity to respond.” Id. at 1376. Accordingly, it is “consti-
tutionally impermissible to allow a deciding official to
receive additional material information that may under-
mine the objectivity required to protect the fairness of the
process.” Id. We went on to explain, however, that “not
every ex parte communication is a procedural defect so
substantial and so likely to cause prejudice that it un-
dermines the due process guarantee and entitles the
claimant to an entirely new administrative proceeding.”
Id. at 1376–77. Rather, only ex parte communications
that “introduce new and material information to the
deciding official” contravene due process. Id. at 1377.
The key, therefore, is determining whether the ex parte
communication contained “new and material infor-
mation.”
10              FEDERAL EDUCATION ASSOCIATION    v. DEFENSE



    We articulated three relevant factors: whether (1) “the
ex parte communication merely introduces ‘cumulative’
information or new information”; (2) “the employee knew
of the error and had a chance to respond to it”; and (3) the
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. Finally, we made clear that, if new
and material information has been conveyed by the ex
parte communication, “then a due process violation has
occurred and the former employee is entitled to a new
constitutionally correct removal procedure . . . . [W]hen a
procedural due process violation has occurred because of
ex parte communications, such a violation is not subject to
the harmless error test.” Id. at 1377. Accordingly, we
reversed and remanded for the Board to consider the
above factors and make a determination as to whether the
ex parte communications introduced new and material
information such that Mr. Stone’s due process rights had
been violated. Id. Similarly, in Sullivan we held that
“improper ex parte communications were not only unfair,
but also denied petitioner his rights under the due process
clause of the Constitution” and “further that they tainted
the investigation, voided the entire proceeding, and
rendered [the] removal decision a nullity.” 720 F.2d at
1274.
    Before the arbitrator here, Ms. Graviss argued that
Stone required a finding that her due process rights had
been violated. See J.A. 946. The arbitrator did not under-
take any detailed analysis of the Stone factors, but in-
stead summarily concluded that “unlike in Stone, the
Calvano statement contains no ‘new and material infor-
mation.’” J.A. 863. Substantial evidence, therefore, does
not support the arbitrator’s decision in this respect. Even
FEDERAL EDUCATION ASSOCIATION   v. DEFENSE               11



a brief examination of the Stone factors reveals that Ms.
Graviss’s due process rights were violated by the March
26 email.
     The government first argues that the Stone factors do
not apply at all here because the communication occurred
before removal proceedings had been brought against Ms.
Graviss. The government contends that improper ex parte
communications can only occur once the removal proceed-
ing had actually begun—in this case, when the notice of
proposed removal had been issued. To be sure, as we
discuss below, not all ex parte communications before the
initiation of a proceeding will violate due process. But we
see no basis for a distinction between pre- and post-
initiation communications when the ex parte communica-
tion occurred at a time, as is the case here, when an
adjudicatory proceeding was contemplated. The risk of
creating undue pressure in such circumstances is just as
great when ex parte contact occurs before the proceeding
begins as when it occurs after the proceeding begins.
    Here, it is clear that a proceeding was contemplated;
indeed, that was the very purpose of the email, and it
does not matter for the purposes of constitutional due
process whether the ex parte communication occurred
before or after formal proceedings had been initiated.
Notably, under the Administrative Procedure Act, ex parte
communications in the formal adjudication context are
prohibited when “the person responsible for the communi-
cation has knowledge [the proceeding] will be noticed.” 5
U.S.C. § 557(d)(1)(E). 3 The Board itself follows this rule.


   3   Id. § 557(d)(1)(A), (E) (prohibiting “an ex parte
communication relevant to the merits of the proceeding”
and providing that “the prohibitions of this subsection
shall apply beginning at such time as the agency may
12              FEDERAL EDUCATION ASSOCIATION     v. DEFENSE



See 5 C.F.R. § 1201.102 (prohibiting ex parte communica-
tions “from the time the persons involved know that the
Board may consider the matter until the time the Board
has issued a final decision”). Accordingly, we proceed to
consider the Stone factors.
    The first Stone factor is whether the ex parte commu-
nication “introduces ‘cumulative’ information or new
information.” Stone, 179 F.3d at 1377. While the gov-
ernment echoes the arbitrator’s conclusion that “the
email . . . was not ‘new and material evidence,’” it does not
argue that the March 26 email was merely “‘cumulative’
information” under the first factor. Br. of Appellee at 24.
Nor could it. The March 26 email clearly introduced new
information to Mr. Curkendall, the deciding official,
because it informed him for the first time that his super-
visor, Dr. Calvano, wanted Ms. Graviss to be removed for
“insubordination” and “repeated use of corpor[a]l punish-
ment.” J.A. 630. That information, along with Dr.
McClain’s ready agreement, was not “cumulative” of any
other information received by Mr. Curkendall. The first
Stone factor was satisfied.
    As to the second factor, whether “the employee knew
of the error and had a chance to respond to it,” Stone, 179
F.3d at 1377, the government does not dispute that Ms.
Graviss only learned about the March 26 email during
discovery leading up to arbitration, long after her oppor-
tunity to respond to the proposed termination had closed,


designate, but in no case shall they begin to apply later
than the time at which a proceeding is noticed for hearing
unless the person responsible for the communication has
knowledge that it will be noticed, in which case the prohi-
bitions shall apply beginning at the time of his acquisition
of such knowledge”).
FEDERAL EDUCATION ASSOCIATION   v. DEFENSE             13



the termination decision was made, and she was removed
from her position. Accordingly, the second Stone factor
was satisfied.
     The dissent concedes that “[u]ndoubtedly, it would
have been preferable had the issue been fully aired at the
initial stages of the administrative review, for whatever
relevance to the merits it may have had.” Dissent at 8.
But the dissent suggests that any unfairness resulting
from Ms. Graviss’s lack of knowledge of the March 26
email prior to her termination was mitigated later when
she was given the opportunity to address the email during
arbitration. See id. That opportunity to address the
email occurred four years after her termination when the
email was finally disclosed.
    It is true that, as the Supreme Court recognized in
Loudermill, there are “some situations in which a post-
deprivation hearing will satisfy due process require-
ments.” 470 U.S. at 542 n.7 (emphasis added). But this
does not mean that an employee enjoys no due process
before removal. Our recognition of the importance of pre-
termination due process dates back at least to our holding
in Stone. See 179 F.3d at 1376 (“An employee is entitled
to a certain amount of due process rights at each stage
and, when these rights are undermined, the employee is
entitled to relief regardless of the stage of the proceed-
ings.”); see also Ward, 634 F.3d at 1282 (“If the Board
finds that the communications did introduce new and
material information in violation of [Petitioner’s] due
process rights, [Petitioner] must be afforded a constitu-
tionally correct removal procedure.” (internal quotation
marks omitted)). Recently, this court has squarely reject-
ed the idea that an adequate post-termination review can
cure a procedurally deficient termination proceeding. See
Young, 706 F.3d at 1377 (“[Petitioner] was entitled to
procedural fairness at each stage of the removal proceed-
ings, not just upon review of the termination decision.”
(internal quotation marks omitted)).
14              FEDERAL EDUCATION ASSOCIATION     v. DEFENSE



     As to the third factor, whether the communications
were “of the type likely to result in undue pressure upon
the deciding official to rule in a particular manner,” id.,
Ms. Graviss argues that the March 26 email from a su-
pervisor to a subordinate deciding official is a paradig-
matic example of “the type” of communication “likely to
result in undue pressure.” The government disagrees on
this point, contending that “Dr. Calvano’s informal opin-
ions are just that: informal opinions. They do not direct,
officially recommend, or even pressure an outcome.” Br.
of Appellees at 29–30. The government emphasizes the
arbitrator’s finding that the decision-maker here was
subjectively independent, arguing that such subjective
independence forecloses any due process violation.
    It is true, as the government contends, that the arbi-
trator concluded that the “full record shows Curkendall
was the independent decider required under case law,”
J.A. 864, based on the testimony from Mr. Curkendall and
Dr. Calvano that no undue influence had been intended or
perceived. And it is true that no such finding had been
made in Stone, where we remanded to the MSPB for a
consideration of the three factors in the first instance.
Stone, 179 F.3d at 1377. But whether or not the decision-
maker was subjectively independent is not the question.
Rather, the fundamental issue is whether there was a
substantial potential for undue pressure using the objec-
tive standard of Stone.
    The third Stone factor, whether the communications
were “of the type likely to result in undue pressure upon
the deciding official to rule in a particular manner,” Stone,
179 F.3d at 1377 (emphasis added), specifically directs the
inquiry to the “type” of communication involved, and does
not require proof that the ex parte communication actual-
ly resulted in undue pressure upon the deciding official to
rule in a particular manner. Indeed, we held in Stone
that “[u]ltimately, the inquiry . . . is whether the ex parte
communication is so substantial and so likely to cause
FEDERAL EDUCATION ASSOCIATION    v. DEFENSE                15



prejudice that no employee can fairly be required to be
subjected to a deprivation of property under such circum-
stances.” Id. (emphasis added). While proof of subjective
undue influence from an undisclosed communication may
support a conclusion that there has been a due process
violation, the absence of subjective influence does not
foreclose the possibility of a violation. See Ward, 634 F.3d
at 1280 n.2. Accordingly, the arbitrator’s finding that Mr.
Curkendall in fact believed that he was not unduly influ-
enced by the March 26 email does not preclude a due
process violation. We conclude that a petitioner need not
prove actual subjective influence in order to demonstrate
a violation of due process under Stone. See also Camero v.
United States, 375 F.2d 777, 780 (Ct. Cl. 1967) (invalidat-
ing removal despite concluding that the deciding official
“made up his own mind when he decided to sustain plain-
tiff's removal” because “decisions were made, at least in
part, on the basis of the ex parte communication”).
     Here, the March 26 email was certainly the “type” of
communication “likely to result in undue pressure on the
deciding official to rule in a particular manner” under the
objective framework of the third Stone factor. Stone, 179
F.3d at 1377 (emphasis added). A supervisor issued what
can only most generously be deemed a “suggestion” to a
subordinate decision-maker. The nature of this communi-
cation, particularly in light of the strong language used,
“we need to try and terminate her . . . ,” and the specificity
of the suggested rationale, “for repeated use of corporeal
[sic] punishment and for insubordination,” J.A. 630 (em-
phasis added), creates a high risk that a subordinate
decision-maker would have been unduly pressured to
terminate the employee. Because the undisclosed March
26 email was of the type likely to result in undue pres-
sure, the third Stone factor was satisfied.
    To be clear, we are not suggesting that the standards
of impartiality applicable to the judiciary and to Board
adjudication also apply in the context of an agency deci-
16              FEDERAL EDUCATION ASSOCIATION    v. DEFENSE



sion to remove an employee or other adverse action. 4
Inevitably, due to the nature of the workplace, a deciding
official in the employment context likely is familiar with
the employee and has knowledge of the employee’s prior
performance and conduct. Contrary to the dissent’s
suggestion, we recognize that the existence of such
knowledge by officials involved with the removal process
(including the deciding official) creates no due process
issue, as we held in Norris v. SEC, 675 F.3d 1349 (Fed.
Cir. 2012). In Norris, we affirmed an arbitrator’s finding
that an alleged ex parte communication was not new and
material where the alleged ex parte communication was
merely the deciding official’s awareness of a prior incident
of the employee’s misconduct at the time of her removal
decision. See id. at 1353–54. As we explained, “a deciding
official’s mere knowledge of prior misconduct by the
employee obtained before the commencement of discipli-
nary proceedings does not constitute an improper ex parte
communication.” Id.
    But unlike Norris, this case does not involve routine
communications and knowledge acquired about an em-
ployee’s job performance before a decision to commence
removal proceedings. Rather, the communication in this
case was directed to the conduct of the removal proceed-
ings and is indistinguishable from the type of communica-
tion that this court recognized violated due process in



     4  Other circuits have rejected such arguments
where an impartial decision maker presides over post-
termination proceedings. See, e.g., McDaniels v. Flick, 59
F.3d 446, 459–60 (3d Cir. 1995) (collecting cases); Walker
v. City of Berkeley, 951 F.2d 182, 184 (9th Cir. 1991);
Duchesne v. Williams, 849 F.2d 1004, 1005, 1008 (6th Cir.
1988) (en banc).
FEDERAL EDUCATION ASSOCIATION   v. DEFENSE              17



Stone. All three of the Stone factors are satisfied. First,
the communication was made in contemplation of removal
proceedings and provided the new information that the
official’s supervisor wanted Ms. Graviss to be terminated.
Second, Ms. Graviss was unaware of this communication
and, therefore, she had no opportunity to respond to it.
Third, the recommendation of termination by the deciding
official’s supervisor was “of the type likely to result in
undue pressure upon the deciding official to rule in a
particular manner,” in this case, to terminate Ms. Gra-
viss. Stone, 179 F.3d at 1377.
    We conclude that Ms. Graviss’s due process rights
were violated, and that substantial evidence does not
support the arbitrator’s conclusion to the contrary. We
need not consider Ms. Graviss’s other arguments regard-
ing the merits of her removal. We reverse and remand for
further proceedings consistent with this opinion.
            REVERSED AND REMANDED
                           COSTS
   Costs to petitioners.
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

      FEDERAL EDUCATION ASSOCIATION –
      STATESIDE REGION, KAREN GRAVISS,
                  Petitioners

                            v.

   DEPARTMENT OF DEFENSE, DOMESTIC
 DEPENDENTS ELEMENTARY AND SECONDARY
                 SCHOOL,
                 Respondent
           ______________________

                       2015-3173
                 ______________________

    Petition for review of an arbitrator’s decision in No.
14-1024-00182-7 by Steven G. Hoffmeyer.
                  ______________________
PLAGER, Circuit Judge, dissenting.
    I respectfully dissent from the majority’s conclusion
that, as a matter of law, Ms. Graviss was denied her
constitutional rights during her removal from federal
service. Not only does the majority reach the wrong
conclusion with regard to her due process rights, but the
opinion has the potential to chill important discussions
regarding personnel matters among responsible supervi-
sors, discussions that are essential to well-functioning
agency administration.
    The relevant facts are clear. Ms. Graviss was em-
ployed as a preschool teacher for special-needs children in
2               FEDERAL EDUCATION ASSOCIATION    v. DEFENSE



a school operated under the Department of Defense. Her
immediate supervisor was Dr. Andrea McClain, principal
of the school. The school and its principal were under the
immediate supervision of John Curkendall, Community
Superintendent. In turn, Mr. Curkendall reported to Dr.
Frank Calvano, District Superintendent. That was the
agency chain of command at the time of the events that
led to Ms. Graviss’ removal.
     From the viewpoint of the agency, Ms. Graviss had
not performed well. She had been disciplined previously
in a formal letter of reprimand from Dr. McClain for
“inappropriate interaction with a student” and “failure to
follow directives.” J.A. 691. That interaction apparently
involved physical restraint of a misbehaving student in a
manner contrary to the school’s standing instructions.
    The particular event that precipitated Ms. Graviss’
removal involved her again having physically handled a
child. The event was witnessed by two classroom aides
who were sufficiently concerned that they reported the
event to Principal McClain. After an investigation, Dr.
McClain forwarded a Serious Incident Report to Mr.
Curkendall, her immediate supervisor, and Dr. Calvano,
at the next supervisory level. Dr. Calvano obviously was
aware of the problem with the teacher’s physical handling
of children, as he responded to that report with an email,
to both Mr. Curkendall and Dr. McClain. In that email,
the District Superintendent said that “we need to try and
terminate her for repeated use of corporeal punishment
and for insubordination.” J.A. 630. That email is the
subject of this appeal.
     The following month, Dr. McClain issued a notice of
proposed removal based on “inappropriate physical con-
tact with a student,” the event arising from that particu-
lar incident. J.A. 708. The notice did not include either of
the concerns that Dr. Calvano identified, corporal pun-
ishment or insubordination.
FEDERAL EDUCATION ASSOCIATION   v. DEFENSE                 3



    The Community Superintendent, Mr. Curkendall,
subsequently was designated the deciding official in the
case, pursuant to the agency’s procedures. In due course,
after hearing and consideration of Ms. Graviss’ responses
to the charge, he issued a formal decision removing her.
    During her appeal from the agency’s decision of re-
moval, which she elected to take to an arbitrator rather
than the Merit Systems Protection Board (“MSPB”), the
existence of the Calvano email was disclosed. The arbi-
trator upheld the removal by the agency, and appeal was
taken here. 1
     The issue presented is, does the existence of that
email sufficiently taint the agency’s removal process so as
to deprive Ms. Graviss of the constitutional due process
under the Fifth Amendment to which she is entitled?
                     1.   Loudermill
    The Supreme Court in 1985 set out the basic parame-
ters of proper process for removing employees from public
service, at least as far as constitutional due process
requires. 2 Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532 (1985). In the combined cases generally known as
Loudermill, the employees were summarily dismissed
without a hearing. The issue before the Court was what
rights, if any, does a public employee have to notice and
opportunity to be heard before the decision to remove is


   1    It is an open question whether Ms. Graviss’ union
is a proper petitioner in this case; however, as that ques-
tion was not raised by the Government, it need not be
addressed here.
    2   It is of course possible for statutes and regula-
tions, as well as employment contract provisions, to
impose more process than what is due under the Consti-
tution.
4               FEDERAL EDUCATION ASSOCIATION    v. DEFENSE



made (the pre-decision right), when post-decision proce-
dures are in place. The Court announced that, under the
Constitution’s due process clause, “the tenured public
employee is entitled to oral or written notice of the charg-
es against him, an explanation of the employer’s evidence,
and an opportunity to present his side of the story. To
require more than this prior to termination would intrude
to an unwarranted extent on the government’s interest in
quickly removing an unsatisfactory employee.” Id. at 546
(citations omitted). 3 In Loudermill, there was no issue of
a prior communication among those in the agency chain of
command regarding the particular matter. (We refer here
to such prior communication as ex parte communication,
the general term ex parte simply meaning without the
knowledge or involvement of all parties). 4
                         2. Stone
    The issue of ex parte communication was before this
court fourteen years later in Stone v. Federal Deposit
Insurance Corp., 179 F.3d 1368 (Fed. Cir. 1999). 5 Mr.
Stone was removed from federal employment following a
full hearing and opportunity to respond to the charges.
However, subsequently, during his appeal of the agency
decision to the MSPB, Mr. Stone learned that a previously
undisclosed memo on the matter from the official recom-


    3   Since Loudermill involved state employees, the
due process clause was that of the 14th Amendment; no
one doubts that federal employees such as Ms. Graviss
have at least the same basic rights under the due process
clause of the 5th Amendment.
    4   See, e.g., ex parte, Black’s Law Dictionary (10th
ed. 2014).
    5   This court also addressed the issue in other cases
post-Loudermill. See, e.g., DeSarno v. Dep’t of Commerce,
761 F.2d 657 (Fed. Cir. 1985).
FEDERAL EDUCATION ASSOCIATION   v. DEFENSE                5



mending Stone’s removal had been sent to the deciding
official, and that a second such memo had been sent to the
deciding official by another agency official urging Mr.
Stone’s removal. The MSPB nevertheless affirmed the
removal, and he appealed here.
    The majority in the case now before us turned to
Stone for its analysis of the applicable law. In Stone, this
court said that “not every ex parte communication is a
procedural defect so substantial and so likely to cause
prejudice” that it constitutes a due process violation. Id.
at 1376–77. “Only ex parte communications that intro-
duce new and material information to the deciding official
will violate the due process guarantee of notice. In decid-
ing whether new and material information has been
introduced by means of ex parte contacts, the Board
should consider the facts and circumstances of each
particular case.” Id. at 1377. The court then laid out
several factors to be considered: “whether the ex parte
communication merely introduces ‘cumulative’ infor-
mation or new information; whether the employee knew
of the error and had a chance to respond to it; and wheth-
er the ex parte communication were of the type likely to
result in undue pressure upon the deciding official to rule
in a particular manner.” Id.
    The Stone court declined to express any opinion about
whether the ex parte communications in that case consti-
tuted new and material information; indeed, the court’s
opinion does not elaborate on exactly what was said in
either of the communications involved. The matter was
returned to the MSPB for further consideration pursuant
to the court’s newly-articulated criteria. (On remand, the
MSPB disposed of the case by a single word, “Dismissed.”
84 M.S.P.R. 623 (Oct. 15, 1999)).
                a.   The first Stone factor
    The majority here finds the email from Dr. Calvano
constitutes a communication of new and material infor-
6               FEDERAL EDUCATION ASSOCIATION    v. DEFENSE



mation in violation of the first Stone factor. I disagree.
First, the mere fact of a prior communication, that is,
some earlier communication from an official in the chain
of command to the eventual deciding official regarding the
existence of a personnel problem, cannot constitute by
itself the proscribed ex parte communication. If it did, the
rule would be simply that any communication by a super-
visory officer regarding an existing personnel issue to a
lower administrative officer who then becomes the decid-
ing official in the particular case violates due process.
    This would mean that in any well-functioning admin-
istrative agency, in which lower administrative officers
regularly confer with and seek the advice of their respon-
sible superiors, especially about personnel problems, no
subsequent process within the administrative chain of
command regarding such matters could be conducted.
Every disciplinary case would have to be referred to an
outside entity for initial review and decision. 6 That is
contrary to good administrative practice, and certainly
not the process that Congress and the agencies have in
place. As a general proposition, courts regularly require
that employees exhaust their administrative remedies
before they can seek relief in the courts.
    What the first Stone factor addresses, when it invokes
the concept of a relevant ex parte communication, is a
communication that contains new and material infor-
mation about the facts and circumstances of the event at


    6   The Administrative Procedure Act (“APA”) prohib-
its ex parte communications, but not between agency
employees such as Dr. Calvano and Mr. Curkendall. See
S. Rep. No. 354, 94th Cong., 1st Sess. 36 (1975); H.R. Rep.
No. 880, 94th Cong., 2d Sess. 20 (1976) (“Communication
solely between agency employees are excluded from the
section’s prohibition.”).
FEDERAL EDUCATION ASSOCIATION   v. DEFENSE                7



issue. And even then, as the Stone court notes, a com-
ment on the facts may not be relevant if it is just “cumu-
lative” information. In the case before us, Dr. Calvano’s
email did not contain any new information whatsoever
about the specifics of the incident described in the Serious
Incident Report, on which the charges against Ms. Gra-
viss were based
    It could be argued that the email did provide Mr.
Curkendall new information—that is, the fact that Dr.
Calvano, his superior, was concerned about this employee
and wanted something done. Given the content of the
email, however, it seems unlikely that this was the first
inkling that Mr. Curkendall had regarding his supervi-
sor’s concerns; Dr. Calvano obviously had been advised
previously that Ms. Graviss’ behavior with the children
was viewed as a problem by the school principal.
    In any event, even if the fact of Dr. Calvano’s concerns
were new information, they did not prove to be material,
as I shall explain in the discussion of Stone factor three,
below. Accordingly, the circumstances of this case do not
disclose a relevant ex parte communication containing
new and material information.
               b. The second Stone factor
     Even if it could be argued that the email from Dr.
Calvano constituted new and material information, the
second Stone factor asks whether the employee knew of
the communication and had a chance to respond to it.
There is no argument that the existence of the Calvano
email was not disclosed to the employee at the time she
had her hearing before the administrative deciding offi-
cial; the existence of the email came out during the appeal
proceedings before the arbitrator. At that point, the
arbitrator gave Ms. Graviss full opportunity to respond to
the implications of that communication; it became a major
issue in the record before the arbitrator.
8               FEDERAL EDUCATION ASSOCIATION    v. DEFENSE



    In terms of due process, it is important that the em-
ployee be given a full and fair hearing at which an ex
parte communication such as this is considered and
evaluated. In this case, that full and fair hearing was
held before the arbitrator, the review route chosen by Ms.
Graviss. The record before the arbitrator reveals a full
discussion and consideration of the email’s existence and
possible consequences. Ultimately the arbitrator found
that the email did not affect the propriety of the admin-
istration’s removal decision.
     In Loudermill, the Supreme Court made special note
of the state’s statutory mechanisms for review of adminis-
trative personnel decisions. The existence of such review
mechanisms was part of the Court’s explanation for why
it established a fairly basic notice and hearing require-
ment in order to comply with due process. Loudermill,
470 U.S. at 546 (noting that the Court’s decision “rests in
part on the provision in Ohio law for a full post-
termination hearing”); see also id. at 542 n.7 (noting that
“[t]here are, of course, some situations in which a post-
deprivation hearing will satisfy due process require-
ments”).
     In this case, the hearing before the arbitrator, though
it occurred post-deprivation, provided the employee with a
full opportunity before a disinterested decision-maker to
explore the existence and ramifications of the now-
disclosed ex parte communication, including opportunity
to confront the key witness, the administrator who made
the decision to remove her. Undoubtedly, it would have
been preferable had the issue been fully aired at the
initial stages of the administrative review, for whatever
relevance to the merits it may have had. But it would not
be appropriate for us in this case to impose a higher due
process standard than that called for by the Loudermill
FEDERAL EDUCATION ASSOCIATION   v. DEFENSE               9



ruling, thus creating an indeterminate higher standard
that would have the potential for chilling the communica-
tion needed among responsible administrative officers. 7
                c.   The third Stone factor
    Finally, the third Stone factor asks whether the ex
parte communication was of the type likely to result in
undue pressure upon the deciding official to rule in a
particular manner. That question is one of fact—whether
this particular communication is the type likely to result
in undue pressure upon the deciding official in this case.
Each case will be different—different content to the
communication, different source from which the commu-
nication emanated, different recipient of the communica-
tion, and different defendant’s conduct. That is why, as



   7    See also the concurring position of our sister cir-
cuits. See, e.g., Senra v. Town of Smithfield, 715 F.3d 34,
39–40 (1st Cir. 2013); Coollick v. Hughes, 699 F.3d 211,
220–21 (2d Cir. 2012); McDaniels v. Flick, 59 F.3d 446,
456-460 (3d Cir. 1995); Dennison v. County of Frederick,
Va., 921 F.2d 50, 55 (4th Cir. 1990); Caine v. Hardy, 943
F.2d 1406, 1412 (5th Cir. 1991); Kuhn v. Washtenaw
County, 709 F.3d 612, 621–23 (6th Cir. 2013); Schacht v.
Wisconsin Dep’t of Corrections, 175 F.3d 497, 503 (7th Cir.
1999), receded from on other grounds in Higgins v. Miss.,
217 F.3d 951 (7th Cir. 2000); Krentz v. Robertson Fire
Prot. Dist., 228 F.3d 897, 902 (8th Cir. 2000); Association
for L.A. Deputy Sheriffs v. County of L.A., 648 F.3d 986,
991–92 (9th Cir. 2011); Saavedra v. City of Albuquerque,
73 F.3d 1525, 1533 (10th Cir. 1996); McKinney v. Pate, 20
F.3d 1550, 1556–57 (11th Cir. 1994); Wash. Teachers’
Union Local No. 6, Am. Fed’n of Teachers, AFL-CIO v. Bd.
of Educ. of the Dist. of Columbia, 109 F.3d 774, 781 (D.C.
Cir. 1997).
10              FEDERAL EDUCATION ASSOCIATION   v. DEFENSE



the Stone court put it, the outcome turns on “the facts and
circumstances of each particular case.” 179 F.3d at 1377.
     In this case, the arbitrator heard the witnesses, in-
cluding the agency’s deciding official. The question of
whether Mr. Curkendall, the deciding official, was pres-
sured at all, much less unduly pressured, was explored at
length. He denied feeling any pressure to decide the case
one way or the other, explaining that he understood and
felt free to make the decision regarding removal based on
the facts before him. The arbitrator, after hearing the
testimony of the witnesses, concluded that the deciding
official acted according to his best judgment on the facts
before him, and without regard to the earlier ex parte
communication.
    That factual conclusion is reviewed by us under the
deferential standard prescribed by statute—is there
substantial evidence in the record supporting it? While
there are many cases that delve into the meaning of
“substantial evidence,” sometimes with different termi-
nology, they all come down to this—it is not whether a
reviewing judge would have so concluded, rather it is
whether the evidence is such that a reasonable person
could have arrived at this conclusion. 8 An even more
deferential standard applies to the fact-finder’s determi-
nations about the credibility of the witnesses. 9
    In this case, the facts in the record establish that a
senior administrator was concerned about a new incident
involving this teacher, to the point of expressing that
concern, and before any formal charges were brought.



     8 See, e.g., Parker v. United States Postal Serv., 819
F.2d 1113, 1115 (Fed. Cir. 1987).
    9  See, e.g., Hambsch v. Dep’t of the Treasury, 796
F.2d 430, 436 (Fed. Cir. 1986).
FEDERAL EDUCATION ASSOCIATION    v. DEFENSE               11



The actual charges brought did not reflect the concerned
administrator’s particular views of what charges could be
brought. The deciding official testified that he had not
been directed by the particular views of his superior in
the case, and provided examples of occasions when he
disagreed with such suggestions in the past.
    The deciding official convinced the arbitrator that he
did not feel any pressure regarding how to decide the
case, one way or the other. This conclusion must be
understood in the context of administrative agency pro-
cesses. In Loudermill, the Court commented that “the
pretermination hearing need not definitively resolve the
propriety of the discharge. It should be an initial check
against mistaken decisions—essentially, a determination
of whether there are reasonable grounds to believe that
the charges against the employee are true and support
the proposed action.” Loudermill, 470 U.S. at 545–46.
     This recognizes that, by virtue of their position as
part of the agency, administrative officers when hearing a
case such as this are not expected to be in the same
position of impartiality as a judge or other independent
decision-maker. Compare Marshall v. Jerrico, Inc., 446
U.S. 238, 242 (1980) (“The Due Process Clause entitles a
person to an impartial and disinterested tribunal in both
civil and criminal cases.”), with Walker v. City of Berkeley,
951 F.2d 182, 183–84 (9th Cir. 1991) (holding that pre-
deprivation due process under Loudermill does not re-
quire “an impartial decisionmaker at the pretermination
stage . . . so long as the decisionmaker at the post-
termination hearing is impartial”).
     An understanding of the administrative context re-
flected in the record before us, coupled with the arbitra-
tor’s personal assessment of the veracity of the witnesses,
makes the arbitrator’s factual conclusions unassailable
under our standard of review. The majority‘s effort to
transpose this factual conclusion into something else,
12              FEDERAL EDUCATION ASSOCIATION   v. DEFENSE



something subject to the unlimited discretion of reviewing
judges, is, in my view, inconsistent with controlling law.
                            3.
      As the Stone court stated, “[u]ltimately, the inquiry
. . . is whether the ex parte communication is so substan-
tial and so likely to cause prejudice that no employee can
fairly be required to be subjected to a deprivation of
property under such circumstances.” 179 F.3d at 1377.
That is far from this case.
    For all these reasons, the arbitrator’s decision should
be affirmed. I respectfully dissent from the contrary
decision reached by my colleagues in the majority.
