       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                DOUGLAS EILERS,
                    Petitioner,
                           v.
           DEPARTMENT OF THE ARMY,
                  Respondent,
              __________________________

                      2010-3059
              __________________________

   Petition for review of an arbitrator’s decision by
Ronald L. Miller.
              ___________________________

              Decided: January 24, 2011
             ___________________________

    THOMAS F. MUTHER, JR., Minahan and Muther, P.C.,
of Denver, Colorado, for petitioner.

    ELIZABETH M. HOSFORD, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and KIRK T.
MANHARDT, Assistant Director.
               __________________________
EILERS   v. ARMY                                         2


 Before NEWMAN, GAJARSA, and MOORE, Circuit Judges
PER CURIAM.
    This case is an appeal from the decision of an arbitra-
tor sustaining the Department of the Army, Corps of
Engineers’ removal of Douglas Eilers from his position
based on charges of misconduct. Because substantial
evidence supports the arbitrator’s decision and Mr. Eil-
ers’s due process rights were not violated, we affirm.
                      BACKGROUND
    Mr. Eilers was employed as a power plant operator at
the Detroit Dam. On June 18, 2007, while Mr. Eilers was
on duty, a ground fault occurred in the electrical system.
The ground fault caused the XJ-5 and XJ-31 circuit
breakers to automatically open (trip). While the Detroit
Dam system experienced other ground faults in the
months prior to June 2007, this ground fault was serious
enough for Mr. Eilers to call Mr. Deforest Petersdorf, an
electrician, and Mr. Joseph Shindelus, the maintenance
foreman, and request they come to the Detroit Dam to
help analyze the problem.
     Upon arrival, Mr. Petersdorf and Mr. Eilers investi-
gated the problem. Together they concluded that the XJ-5
circuit breaker should be closed to see whether it would
trip again. Mr. Eilers closed the XJ-5 breaker, and almost
immediately the ground fault alarm sounded. Mr. Eilers
pushed buttons to acknowledge and reset the alarm, but
the alarm did not clear. Soon thereafter, unusual and
loud noises came from an area of the powerhouse below
the control room.       Seconds later, additional alarms
sounded and emergency lighting came on. Mr. Petersdorf
left to investigate the source of the noises, and returned
minutes later to report a fire at a lower level of the pow-
erhouse. Smoke from the fire began to fill the control
3                                           EILERS   v. ARMY


room. Mr. Eilers called 911 and evacuated the power-
house.
    In the days following the fire, Mr. Greg Morris, a su-
pervisor, allegedly told Mr. Eilers: “No, don’t go into the
power plant. It’s not safe.” Early in the morning of June
20, however, Mr. Shindelus instructed Mr. Eilers to enter
the powerhouse and retrieve a key needed to reset the
head gate. Mr. Eilers complied. Later that day, Mr.
Eilers, without instruction, allegedly reentered the pow-
erhouse to check the scroll case pressure.
    The Detroit Dam fire gave rise to two reports evaluat-
ing the incident: an Army Regulation (AR) 15-6 investi-
gation report and a Board of Investigation (BOI) report.
The purpose of an AR 15-6 report is to create a record for
use in disciplinary actions. AR 15-6 §§ 1-1 to 1-9. Con-
versely, a BOI report is for accident prevention purposes
and cannot be used as evidence in disciplinary actions.
AR 385-10 § 3-28. Mr. Eilers had access to the AR 15-6
report. Although Mr. Eilers obtained a copy of a “nearly
final” draft of the BOI report, he was denied access to the
final version of the BOI report.
    After the completion of the AR 15-6 and BOI investi-
gations, the operations project manager of the Detroit
Dam issued a Notice of Proposed Removal for Mr. Eilers.
In his response to the proposed removal, Mr. Eilers re-
ferred to portions of the draft BOI report. On September
15, 2008, Mr. Dwane Watsek issued a Notice of Decision
on Proposed Removal, which removed Mr. Eilers from
employment. In the decision, Mr. Watsek indicated that
he considered the contents of the BOI report only “to the
extent necessary to address [Mr. Eilers’s] response and
clarify the facts.” J.A. 59.
    Mr. Eilers’s union initiated a grievance and the mat-
ter was taken to arbitration. During the arbitration, Mr.
EILERS   v. ARMY                                         4


Eilers again sought access to the final BOI report. At the
hearing, counsel for Mr. Eilers indicated that he thought
the Army’s refusal to give access to the final BOI report
raised “a Constitutional violation issue.” J.A. 1315.
Thereafter, the union submitted the draft BOI report into
evidence.
     The arbitrator sustained Mr. Eilers’s removal based
on charges including the failure to reopen the XJ-5
breaker or cut off power to the plant after the alarm
sounded, and the failure to take action to stop the flow of
electricity, for example by opening the A320 main
breaker, after the fire started. The arbitrator also sus-
tained additional charges related to Mr. Eilers’s behavior
after the fire, including reentering the powerhouse with-
out authorization after resetting the head gate, lack of
candor regarding Mr. Morris’s instructions not to enter
the power plant, and lack of candor regarding entering
the power plant after resetting the head gate. Arbitra-
tor’s Op. 9-17. Mr. Eilers now appeals the arbitrator’s
decision. We have jurisdiction pursuant to 5 U.S.C. §
7121(f) and 5 U.S.C. § 7703. Martin v. Dep’t of Veterans
Affairs, 412 F.3d 1258, 1263 (Fed. Cir. 2005).
                       DISCUSSION
    Mr. Eilers raises two issues on appeal. First, Mr. Eil-
ers asserts that his due process rights were violated
because the Army did not provide him with newly ac-
quired evidence and an opportunity to respond. Second,
he asserts that the arbitrator’s decision was not supported
by substantial evidence or otherwise not in accordance
with the law. We address Mr. Eilers’s arguments in turn
below.
5                                            EILERS   v. ARMY


                             I
    The federal statutory employment scheme creates a
property interest in continued employment. Stone v.
FDIC, 179 F.3d 1368, 1375 (Fed. Cir. 1999). Before being
deprived of this property interest, a public employee must
be given “notice and an opportunity to respond.” Cleve-
land Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).
An “employee is entitled to oral or written notice of the
charges against him, an explanation of the employer’s
evidence, and an opportunity to present his side of the
story.” Id. An ex parte communication that introduces
“new and material information to the deciding official will
violate the due process guarantee of notice.” Stone, 179
F.3d at 1377.
    Whether there was a due process violation turns on
“the facts and circumstances of each particular case.” Id.
Factors to be considered include whether the “communi-
cation 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.” Id. There is no due process violation if the ex
parte communication does not introduce new and material
information. Id.
    Mr. Eilers alleges that his due process rights were vio-
lated because Mr. Watsek, the deciding official, reviewed
the final BOI report and spoke with BOI members indi-
vidually prior to rendering his decision in this case. Mr.
Eilers indicates that he was prejudiced because he was
denied access to the final BOI report and “was not given
an opportunity to consider their input in defending
against the Agency action.”
EILERS   v. ARMY                                          6


    The government responds that, as an initial matter,
there is no indication that Mr. Watsek used anything
other than the draft BOI report in his decision and that
because Mr. Eilers had the draft report he could not have
been prejudiced. The government explains that Mr.
Eilers had the opportunity to examine Mr. Watsek during
the arbitration to obtain proof that his procedural due
process rights were violated. Mr. Eilers’s only citation to
the record, however, is that Mr. Watsek had “read the
BOI.” Pet’r’s Br. 17 (citing J.A. 1290-91). This testimony
does not demonstrate Mr. Watsek reviewed the final BOI
report, as opposed to the draft report. Likewise there is
no evidence that indicates that Mr. Watsek received any
new and material information from conversations with
BOI members. Thus, there is no evidence that indicates
that Mr. Watsek relied upon any new and material infor-
mation which was not cumulative of the information Mr.
Eilers already possessed (the draft BOI Report and the
AR-15-6 Report).
    Moreover, Mr. Watsek testified that, under normal
circumstances, he would not consider a BOI Report in a
disciplinary action and, in fact, Army Regulation 385-10
prevents the BOI report from being used as evidence in a
disciplinary action. Mr. Watsek testified that he consid-
ered the BOI Report only to the extent necessary to
address Mr. Eilers’s “mischaracterizations from the BOI”,
but otherwise attempted to give the BOI report no weight
in his decision. J.A. 1273; see also J.A. 59 (same). Thus,
we have no basis to infer that Mr. Watsek considered
information not in Mr. Eilers’s possession. Without
evidence that Mr. Watsek reviewed information not
already in his possession, Mr. Eilers fails to establish any
prejudice, and therefore has failed to establish any due
process violation.
7                                             EILERS   v. ARMY


                             II
     This court reviews the decision of an arbitrator in a
federal employment dispute under the same standard as
if the dispute was decided by the Merit Systems Protec-
tion Board. 5 U.S.C. § 7121(f); Martin, 412 F.3d at 1263-
64. We must affirm the decision of an arbitrator unless it
was “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). “[T]he standard is not what
the court would decide in a de novo appraisal, but
whether the administrative determination is supported by
substantial evidence on the record as a whole.” Parker v.
U.S. Postal Serv., 819 F.2d 1113, 1115 (Fed. Cir. 1987).
“Substantial evidence is ‘such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.’” McEntee v. Merit Sys. Prot. Bd., 404 F.3d
1320, 1325 (Fed. Cir. 2005) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). In addition, a “presid-
ing official’s credibility determinations . . . are virtually
unreviewable.” Hambsch v. Dep’t of Treasury, 796 F.2d
430, 436 (Fed. Cir. 1986).
    The arbitrator articulated the standard for negligent
performance of duties as: “‘A failure to exercise the
degree of care required under the particular circum-
stances, which a person of ordinary prudence in the same
situation and with equal experience would not omit.’” Op.
9, quoting Velez v. Department of Homeland Security, 101
M.S.P.R. 650, 656 (2006). Applying this standard to the
facts, the arbitrator sustained two charges based on Mr.
Eilers’s actions on June 18, 2007: that Mr. Eilers failed to
reopen XJ-5 or otherwise cut off power after the alarm
sounded and that Mr. Eilers failed to take any action to
stop the electrical energy after the fire started. Op. 12-14.
EILERS   v. ARMY                                          8


    Mr. Eilers first argues that the Army did not establish
that there was a standard of care that he failed to meet
because there were no explicit instructions for the situa-
tion, no training for the situation, and no operating proce-
dures in place detailing the emergency protocols. He
characterizes the lack of formal instructions, training, and
operating procedures as a “misguided hope that all em-
ployees should intuitively know what to do in the event of
an emergency.” Pet’r’s Br. 26. Mr. Eilers also argues that
the management of the Detroit Dam was confused as to
the job functions and responsibilities of its employees.
Mr. Eilers’s arguments, however, are belied by his own
testimony, which confirms the standard of care for dam
operators is to de-energize a circuit that is causing a
problem and de-energize electrical fires. We see no error
in the arbitrator’s application of this standard of care.
    Mr. Eilers next argues that he did not breach the
standard of care and acted as a reasonable operator would
under the circumstances. Mr. Eilers first claims the
arbitrator’s finding that he failed to open the XJ-5
breaker was wrong. His primary evidence is a photo-
graph taken days after the event, which showed the
breaker opened. The arbitrator, however, gave the photo-
graph no weight because “prior to the photograph being
taken, the control room was not a secured site.” Op. 13.
The arbitrator instead considered evidence from a data
monitoring system and credited Mr. Eilers’s prior indica-
tion that he did not believe he opened the XJ-5 breaker.
Op. 13. We conclude in light of this evidence and credibil-
ity determination that the arbitrator’s factual findings are
supported by substantial evidence.
    Mr. Eilers also argues that even if he failed to open
XJ-5, he still exercised the degree of care required be-
cause other operators would have acted similarly. He
cites the testimony of various witnesses, which he claims
9                                             EILERS   v. ARMY


indicate that a reasonable operator would not have imme-
diately reopened XJ-5 under the circumstances. Even if
these operators would not have immediately reopened XJ-
5, one of these same witnesses testified that an operator
would reopen the breaker upon determining there was
still a fault, and another confirmed that an operator
should try and open the breaker in order to save equip-
ment. Given this testimony, we conclude the arbitrator’s
findings are supported by substantial evidence.
    Finally, Mr. Eilers disputes that his failure to stop the
flow of electrical energy after the fire started was negli-
gent. He claims that when the emergency lighting came
on, he concluded the A320 main breaker automatically
opened and cut off the flow of electricity. The arbitrator,
relying on Mr. Eilers’s previous indication that he “did not
know what finally cleared the fault,” though “[h]e thought
A320 must have cleared at some point,” J.A. 155, con-
cluded that Mr. Eilers did not know that the A320 main
breaker automatically opened. The arbitrator also found
that the A320 main breaker did not actually open until
minutes after the emergency lighting came on. Op. 14. In
light of the evidence, we cannot overturn these fact find-
ings.
    Mr. Eilers further claims that a prudent operator
would not have opened the A320 main breaker and cites
testimony of witnesses including Mr. Shaw, the crew
foreman. Some of the witnesses relied upon by Mr. Eilers,
however, testified that under the circumstances faced by
Mr. Eilers, when they became aware of the fire below the
power should be cut off by, e.g., opening A320. Moreover,
the arbitrator found there was a two minute delay be-
tween the time Mr. Eilers became aware of the fire and
the time he called 911. In light of this evidence, we
conclude that the arbitrator’s findings regarding negligent
EILERS   v. ARMY                                        10


performance of duties are supported by substantial evi-
dence.
    Mr. Eilers also attacks the arbitrator’s findings re-
garding the charge of entering a hazardous area without
authorization. While Mr. Eilers received authorization
from Mr. Shindelus to enter the powerhouse to reset the
head gate, the arbitrator found that Mr. Eilers subse-
quently reentered the powerhouse without any authoriza-
tion and contrary to a direct order. First, Mr. Eilers
claims that he did not reenter the prohibited area after
resetting the head gate. The arbitrator, however, credited
a note written by Mr. Shindelus a few weeks after the
event that indicated Mr. Eilers did reenter the power-
house on June 20, and that Mr. Shindelus neither in-
structed nor prohibited his reentry. In light of this note
and credibility determination, the arbitrator’s finding was
supported by substantial evidence.
    Second, Mr. Eilers disputes that he received an ex-
plicit instruction not to enter the powerhouse, and claims
he merely overheard a conversation where Mr. Morris
stated it was unsafe to enter. The arbitrator, however,
found that Mr. Eilers was instructed not to enter the
power plant. The record contains an email by Mr. Morris
that he directly told Mr. Eilers: “No, don’t go into the
power plant. It’s not safe.” Op. 15; J.A. 320. Given this
email, we cannot overturn the arbitrator’s credibility
determinations.
    Mr. Eilers also argues that he did not lack candor in
responding to investigatory questions. Since the arbitra-
tor found Mr. Eilers was directed not to enter the power-
house, and did in fact enter the powerhouse, the
arbitrator’s conclusion that Mr. Eilers lacked candor on
these subjects during the investigation is also supported
by substantial evidence.
11                                          EILERS   v. ARMY


    We have considered Mr. Eilers’s additional arguments
on appeal and find them to be without merit.
                        AFFIRMED
                           COSTS
     Each party shall bear its own costs.
