                        NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                       2009-3210

                                     TRAVIS HULL,

                                                              Petitioner,

                                            v.

                          DEPARTMENT OF THE AIR FORCE,

                                                              Respondent.


       Tiffany L. Malin, Minahan & Muther, P.C., of Denver, Colorado, for petitioner.

       Hilliary A. Stern, Senior Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson,
Director, and Todd M. Hughes, Deputy Director.

Arbitrator’s decision
                        NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

                                       2009-3210

                                     TRAVIS HULL,

                                                              Petitioner,
                                            v.

                         DEPARTMENT OF THE AIR FORCE,

                                                              Respondent.



             Petition for review of an arbitrator’s decision by Gary L. Axon.

                                ____________________

                                 DECIDED: May 7, 2010
                                ____________________

Before RADER, GAJARSA, and PROST, Circuit Judges.

PER CURIAM.

      Travis Hull, petitioner, appeals the decision of Arbitrator Gary L. Axon sustaining

the decision of the Department of the Air Force (the “Agency”) to remove him from

federal service. On appeal, Hull has raised only one issue: whether the Arbitrator erred

in sustaining the Agency’s removal of Hull despite an ex parte communication by the

deciding official. For the reasons noted, we affirm.

                                     BACKGROUND

      Prior to his removal, Hull was employed as a boiler room operator at Hill Air

Force Base, Utah. The incident that led to Hull’s removal took place on January 30,

2008, when a co-worker, Randy Wolf, was called in to repair the boilers. When Wolf
began working on the boilers, he took out a cigarette and lit it. Hull told Wolf that he

could not smoke in the boiler plant, and the two had a brief verbal exchange. Hull and

Wolf give conflicting stories of what transpired next, but both agree that Hull ultimately

pushed Wolf backwards into a stationary ladder. As a result, Wolf bruised his ribs and

muscles and consequently missed sixty-three hours of work.

       Wolf reported the incident to management officials and the United States Air

Force Security Police conducted an investigation. On February 27, 2008, the Agency

issued Hull a Notice of Proposed Removal based on offenses of: (1) disruption in the

work place, (2) disregard of directives, and (3) conduct unbecoming of a federal

employee. The Agency issued a final Decision to Remove on April 25, 2008, citing the

same offenses recorded in the Notice of Proposed Removal. On March 12, 2008, the

deciding official conducted an ex parte communication with Wolf, of which Hull was not

notified.

       As an employee covered by a labor union agreement, Hull had the option to

either appeal his removal to the Merit Systems Protection Board (“MSPB”) or to follow

the negotiated arbitration procedure in his labor agreement. 5 U.S.C. § 7121(d) (2006).

Hull chose the latter, and a hearing was held before the Arbitrator where both parties

were able to present evidence and arguments in support of their positions. It was

during the arbitration hearing that Hull first learned of the deciding official’s ex parte

communication. The Arbitrator, however, found that no new and material facts were

elicited during the ex parte communication, and therefore Hull was not deprived of his

due process rights. The Arbitrator affirmed the decision of the Agency to remove Hull




2009-3210                                   2
based on the reasons cited in the Decision to Remove and Notice of Proposed

Removal. Hull now appeals the Arbitrator’s decision to this court.

                                       DISCUSSION

         This court has jurisdiction over the appeal pursuant to 5 U.S.C. §§ 7121(f) and

7703. We review an arbitrator’s decision as if the matter had been decided by the

MSPB. 5 U.S.C. § 7121(f); Zingg v. Dep’t of the Treasury, 388 F.3d 839, 842 (Fed. Cir.

2004).     Thus, we may reverse an arbitrator’s decision only if it is “(1) arbitrary,

capricious, an 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) unsupported by substantial evidence.” 5 U.S.C. § 7703(c).

         The only issue Hull raises on appeal is whether the deciding official violated

Hull’s Fifth Amendment due process rights when the deciding official conducted an ex

parte communication of which Hull was not informed. This court has 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 constitutional due process

guarantee of notice (both of the charges and of the employer’s evidence) and the

opportunity to respond.” Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368, 1376 (Fed.

Cir. 1999). We emphasized, however, that not every ex parte communication violates

due process; rather only ex parte communications providing “new and material

information” violate the due process guarantee of notice. Id. at 1376–77.

         As the arbitrator correctly found, the deciding official’s ex parte communications

provided no “new and material information.” Hull points to statements Wolf made during

the ex parte communication that he “would not work in a boiler plant with Mr. Hull unless




2009-3210                                    3
escorted” as the only new, non-cumulative information. However, the Arbitrator properly

found that these statements were not material because the Notice of Proposed

Removal and the Decision to Remove cite only Hull’s disruption in the work place,

disregard for directives, and conduct unbecoming a federal employee. There is nothing

in either notice that suggests the deciding official’s decision was based on Wolf’s

unwillingness to work with Hull.

      This court finds that the Arbitrator’s decision was not arbitrary or capricious, but

rather is supported by substantial evidence. We therefore affirm.

      No costs.




2009-3210                                  4
