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, Washington, 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 arbitrator’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 preponderance of the evidence that the removal penalty both promoted the efficiency of the service and was reasonable. 

We hold that Ms. Graviss’s due process rights were violated 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 transitioned to work as a second-grade teaching assistant and

regular education teacher. From 1994 to 2008, Ms. Graviss 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 supervisor, 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 repeatedly 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 described, 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 completed and submitted a Family Advocacy Program Department 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 Serious 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 Superintendent 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 proceedings and followed from Dr. McClain’s mandatory submission 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 corporal 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 evidence. . . . [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 removal on September 9, 2010. DDESS denied the grievance, 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 suggested. 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 discipline,” 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 improper 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 intended 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 arbitrator’s decision unless it is (1) arbitrary, capricious, an 

 

2 The arbitrator also concluded that “[e]ven if, arguably, [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 opportunity 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 communications, 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) unsupported by substantial evidence. 5 U.S.C. § 7703(c); Young, 706 

F.3d at 1375–76. “In addition, we must reverse an arbitrator’s decision if it is not in accordance with the requirements 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 constitutionally 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 deprived 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 memorandum from a third government employee, both urging 

that Mr. Stone be removed. Id. at 1372–73. In an affidavit, the deciding official stated that he would have concluded that Mr. Stone should be removed “whether or not 

he had seen” the ex parte memorandum from the proposing 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 constitutional due process guarantee of notice (both of the 

charges and of the employer’s evidence) and the opportunity to respond.” Id. at 1376. Accordingly, it is “constitutionally impermissible to allow a deciding official to 

receive additional material information that may undermine 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 undermines 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 information.” 
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 undertake any detailed analysis of the Stone factors, but instead summarily concluded that “unlike in Stone, the 

Calvano statement contains no ‘new and material information.’” 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 proceeding 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 postinitiation communications when the ex parte communication 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 communication 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 communications “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 communication “introduces ‘cumulative’ information or new 

information.” Stone, 179 F.3d at 1377. While the government 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 supervisor, Dr. Calvano, wanted Ms. Graviss to be removed for 

“insubordination” and “repeated use of corpor[a]l punishment.” 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 opportunity 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 prohibitions 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 postdeprivation hearing will satisfy due process requirements.” 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 pretermination 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 proceedings.”); 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 constitutionally correct removal procedure.” (internal quotation 

marks omitted)). Recently, this court has squarely rejected 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 proceedings, 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 supervisor to a subordinate deciding official is a paradigmatic example of “the type” of communication “likely to 

result in undue pressure.” The government disagrees on 

this point, contending that “Dr. Calvano’s informal opinions 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 arbitrator 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 decisionmaker was subjectively independent is not the question. 

Rather, the fundamental issue is whether there was a 

substantial potential for undue pressure using the objective 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 actually 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 circumstances.” 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 influenced 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) (invalidating removal despite concluding that the deciding official 

“made up his own mind when he decided to sustain plaintiff'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 communication, 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 (emphasis 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 pressure, 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 disciplinary 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 employee’s job performance before a decision to commence 

removal proceedings. Rather, the communication in this 

case was directed to the conduct of the removal proceedings and is indistinguishable from the type of communication that this court recognized violated due process in 

 

4 Other circuits have rejected such arguments 

where an impartial decision maker presides over posttermination 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. Graviss. 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 regarding 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 supervisors, discussions that are essential to well-functioning 

agency administration.

The relevant facts are clear. Ms. Graviss was employed 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 contact with a student,” the event arising from that particular incident. J.A. 708. The notice did not include either of 

the concerns that Dr. Calvano identified, corporal punishment 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 removal, 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 arbitrator 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 parameters 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 question was not raised by the Government, it need not be 

addressed here. 

2 It is of course possible for statutes and regulations, as well as employment contract provisions, to 

impose more process than what is due under the Constitution.
4 FEDERAL EDUCATION ASSOCIATION v. DEFENSE

made (the pre-decision right), when post-decision procedures 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 charges 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 introduce new and material information to the deciding official 

will violate the due process guarantee of notice. In deciding 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’ information or new information; whether the employee knew 

of the error and had a chance to respond to it; and whether 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 constituted 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 supervisory officer regarding an existing personnel issue to a 

lower administrative officer who then becomes the deciding official in the particular case violates due process.

This would mean that in any well-functioning administrative agency, in which lower administrative officers 

regularly confer with and seek the advice of their responsible 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 information about the facts and circumstances of the event at 

 

6 The Administrative Procedure Act (“APA”) prohibits 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 comment on the facts may not be relevant if it is just “cumulative” 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. Graviss 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 supervisor’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 official; 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 employee 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 administration’s removal decision.

In Loudermill, the Supreme Court made special note 

of the state’s statutory mechanisms for review of administrative 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 requirement 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 posttermination hearing”); see also id. at 542 n.7 (noting that 

“[t]here are, of course, some situations in which a postdeprivation hearing will satisfy due process requirements”). 

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 nowdisclosed 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 communication 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 communication emanated, different recipient of the communication, and different defendant’s conduct. That is why, as 

 

7 See also the concurring position of our sister circuits. 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, including the agency’s deciding official. The question of 

whether Mr. Curkendall, the deciding official, was pressured 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 terminology, 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 determinations 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 processes. 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 predeprivation due process under Loudermill does not require “an impartial decisionmaker at the pretermination 

stage . . . so long as the decisionmaker at the posttermination hearing is impartial”).

An understanding of the administrative context reflected in the record before us, coupled with the arbitrator’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 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.” 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.