NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

MIRANDA GOLDENBERG, AS PERSONAL 

REPRESENTATIVE FOR MICHELLE DAVIDSON,

Petitioner

v.

FEDERAL BUREAU OF PRISONS,

Respondent

______________________

2020-1361

______________________

Petition for review of an arbitrator’s decision in No. 

19114-03260 by Richard A. Beens.

______________________

Decided: August 16, 2021

______________________

RUSHAB SANGHVI, Office of General Counsel, American 

Federation of Government Employees, Washington, DC, 

for petitioner. Also represented by ANDRES MYLES 

GRAJALES.

 WILLIAM JAMES GRIMALDI, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by 

JEFFREY B. CLARK, TARA K. HOGAN, ROBERT EDWARD 

KIRSCHMAN, JR.

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2 GOLDENBERG v. BOP

 ______________________

Before LOURIE, SCHALL, and DYK, Circuit Judges.

LOURIE, Circuit Judge.

Petitioner Miranda Goldenberg, as personal representative for Michelle Davidson, seeks review of an arbitrator’s decision sustaining Davidson’s removal from 

employment as a nurse with the Bureau of Prisons 

(“BOP”), arguing that the deciding official violated Davidson’s due process rights by considering new and material information without notice to Davidson. See Federal 

Bureau of Prisons v. Am. Fed’n of Gov’t Emps., Local 1612, 

No. 19114-03260 (Nov. 22, 2019) (Beens, Arb.). Because 

the record does not establish that the deciding official considered the information as an aggravating factor in determining the penalty, we affirm.

BACKGROUND

BOP operates seven United States Federal Prison 

Medical Centers throughout the country. Davidson was 

employed as a nurse in one such facility in Springfield, Missouri for over 22 years, at one point rising to the position of 

Assistant Director of Nursing. For approximately two 

years prior to her removal, Davidson was one of two certified chemotherapy nurses at the facility.

The conduct at issue in this appeal arose from a series 

of events in early 2018. On January 25, Davidson’s personal physician prescribed Suboxone®, a treatment for opioid or alcohol dependence, with instructions to take the 

medication six times a day. Davidson took a first dose that 

night. The following morning, Davidson took a second dose 

prior to arriving at work and a third dose shortly after arriving. During her shift, Davidson’s coworkers reported 

signs of impaired behavior, including slurred speech. Following breath and urine tests, Davidson was excused from 

the remainder of her shift and taken home.

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GOLDENBERG v. BOP 3

A second incident occurred a week later when two 

coworkers observed Davidson arrive to work and remove 

from one of her personal bags a hazard bag containing 

chemotherapy waste. The relevant procedures pertaining 

to disposal of chemotherapy waste instruct nurses to 

“[p]lace disposable material used in the administration of 

Chemotherapy into a plastic zip-locked bag labeled chemotherapy then place in yellow trash container clearly labeled 

Chemotherapy waste . . . .” Davidson told the coworkers 

that she had been extremely busy the day before working 

in the chemotherapy building and had not felt like walking 

all the way to the appropriate building to throw away the 

waste before going home. Davidson later disposed of the 

waste in the appropriate bin after returning to work.

BOP investigated Davidson’s conduct, and on November 1, 2018, notified Davidson that it proposed to remove 

her from her position based on two violations of the BOP 

Standards of Employee Conduct: (1) Failure to Follow Policy for the improper disposal of chemotherapy waste, and 

(2) Reporting for Duty Under the Influence of Suboxone. 

J.A. 281. The letter noted that BOP considered that Davidson had been suspended previously for 21 days in 2017 

for failure to follow policy, and the proposing official 

“ask[ed] the deciding official to consider this prior discipline in making the decision” on the proposed removal. 

J.A. 283. On November 14, 2018, Davidson met with Warden Smith, the deciding official, to discuss the charges. Davidson asked Smith to take into consideration, among other 

things, her years of service and work history, and Smith 

responded that he would review the applicable Douglas factors for determining an appropriate penalty in making his 

decision. J.A. 286; see also Douglas v. Veterans Admin., 5 

M.S.P.B. 313 (1981).

On January 2, 2019, Smith informed Davidson of his 

decision to remove her from service. J.A. 290. Smith found 

that the charges were supported by the evidence and that 

Davidson’s conduct “could have had serious consequences 

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4 GOLDENBERG v. BOP

for the safety of everyone at the institution.” J.A. 289. Regarding the appropriate penalty, Smith considered Davidson’s prior 21-day suspension and concluded that 

Davidson’s “misconduct is so serious as to warrant a substantial penalty.” J.A. 290. Smith also noted that removal 

“is consistent with sanctions imposed on others for substantially similar conduct.” Id. Sometime between the conduct at issue in this appeal and Smith’s decision, Davidson 

was demoted based on a separate disciplinary action, but 

Smith did not address the demotion in his removal decision. See Appellee’s Br. 34 n.8.

Pursuant to her rights under a collective bargaining 

agreement, the American Federation of Government Employees appealed Davidson’s removal to an arbitrator. The 

arbitrator held a hearing at which Smith testified. On direct examination, Smith was asked about his consideration 

of Davidson’s prior 21-day suspension in his removal decision. Smith responded that he contemplated disciplines 

other than removal, including “another demotion.” 

J.A. 183. On cross-examination, Smith was asked about 

the role of Davidson’s prior demotion in his removal decision and responded that, because previous discipline had 

not “changed [Davidson’s] behavior,” Smith “could not get

past . . . that Ms. Davidson was safe to bring . . . back inside the facility in any capacity.” J.A 199.

The arbitrator sustained Davidson’s removal. The arbitrator found Smith’s testimony credible and that Smith 

“appropriately reviewed the Douglas factors” in making his 

decision. J.A. 16. Ultimately, the arbitrator concluded 

that the evidence supported both charges and that there 

was a reasonable relationship between Davidson’s misconduct and the penalty of removal. J.A. 15. The arbitrator 

did not specifically address Smith’s testimony regarding

Davidson’s prior demotion.

Davidson appealed but passed away after briefing was 

completed. We granted Goldenberg’s motion to substitute 

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GOLDENBERG v. BOP 5

her as petitioner in this case as Davidson’s personal representative. We have jurisdiction under 5 U.S.C. §§ 7121(f) 

and 7703(b)(1).

DISCUSSION

We review “the award of an arbitrator in the same 

manner and under the same conditions as if the matter had 

been decided by the [Merit Systems Protection] Board.” 

5 U.S.C. § 7121(f). We must set aside a decision of the 

Board if it was “(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.” Id. § 7703(c). Accordingly, we “must 

reverse a decision of the Board if its decision [was] not in 

accordance with the requirements of the Due Process 

Clause of the Fifth Amendment or any other constitutional 

provision.” Blank v. Dep’t of the Army, 247 F.3d 1225, 1228 

(Fed. Cir. 2001) (citing Khan v. United States, 201 F.3d 

1375, 1382 (Fed. Cir. 2000)). “We review the Board’s legal 

conclusions de novo and its fact findings for substantial evidence.” Smith v. Gen. Servs. Admin., 930 F.3d 1359, 1364 

(Fed. Cir. 2019) (citing Campbell v. Merit Sys. Prot. Bd., 27 

F.3d 1560, 1564 (Fed. Cir. 1994)).

On appeal, Goldenberg argues that Smith violated Davidson’s due process rights by relying on Davidson’s prior

demotion as an aggravating factor in his removal decision 

without providing prior notice to Davidson that the demotion would be considered and an opportunity to respond. 

At a minimum, because the arbitrator failed to address the 

issue in his decision, Goldenberg argues that the arbitrator’s decision should be vacated and remanded for a determination whether Smith’s consideration of the prior 

demotion was a violation of due process in the first instance.

The government responds that no due process violation 

occurred because Smith did not rely on the demotion as an 

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6 GOLDENBERG v. BOP

aggravating factor for an enhanced penalty. According to 

the government, Smith’s testimony establishes that the 

safety of the institution was the motivating factor in his 

removal decision, and a mere reference to Davidson’s prior 

demotion does not create a due process violation. But even 

if the demotion was considered in the removal decision, the 

government argues that the arbitrator’s decision should be 

affirmed because Goldenberg has not demonstrated that 

the information was new and material.

We agree with the government that Smith’s testimony 

establishes that he did not rely on Davidson’s prior demotion as an aggravating factor in his removal decision, and 

therefore his reference to the demotion was not a violation 

of due process. “Procedural due process guarantees are not 

met if [an] employee has notice only of certain charges or 

portions of the evidence and the deciding official considers 

new and material information.” Stone v. FDIC, 179 F.3d 

1368, 1376 (Fed. Cir. 1999). This extends to aggravating 

factors supporting an enhanced penalty. See Ward v. U.S. 

Postal Serv., 634 F.3d 1274, 1280 (Fed. Cir. 2011). Here, 

Goldenberg urges that Smith relied on Davidson’s prior demotion as an aggravating factor supporting his removal decision without any previous notice. Specifically, 

Goldenberg argues that the demotion was the “decisive factor” in removing Davidson and thus necessarily material to 

the decision. Appellant’s Br. 13.

Goldenberg overstates Smith’s testimony. Smith’s initial reference to “another demotion” was in reference to his 

consideration of “other disciplines”—that is, disciplines 

other than removal—as required by the Douglas factors. 

J.A. 183; see also Douglas, 5 M.S.P.B. at 332. Read in context, it is evident that Smith simply acknowledged that he 

considered demotion as an alternative penalty to removal

generally, not Davidson’s prior demotion specifically. His

reference to “another” demotion indicates only that he was 

aware that Davidson had been demoted previously, not 

that he relied on the prior demotion as an aggravating 

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GOLDENBERG v. BOP 7

factor in the current discipline. “A deciding official’s 

knowledge of an employee’s background only raises due 

process or procedural concerns where that knowledge is a

basis for the deciding official’s determinations on either the 

merits of the underlying charge or the penalty to be imposed.” Norris v. Sec. and Exch. Comm’n, 675 F.3d 1349, 

1353 (Fed. Cir. 2012). Here, we agree with the government 

that Smith’s reference to Davidson’s demotion was largely

“mere knowledge” of her background and was not relied 

upon as an aggravating factor for the penalty imposed. Id.

To be sure, the deciding official relied on the previous 

demotion in concluding that another demotion would be ineffective. But it is also apparent from Smith’s testimony 

that it was the safety of the institution’s inmates and employees, rather than the ineffectiveness of prior discipline 

to change Davidson’s conduct, that led him to conclude that 

removal was necessary. At the oral hearing, Smith testified that, although he “seriously” considered another demotion, “it was just not safe to put [Davidson] back in the 

institution. So [he] felt like [he] had no other choice than 

termination.” J.A. 184. When pressed on cross-examination whether he considered the prior demotion in determining the penalty in the instant matter, Smith again 

reiterated that he considered it only as it pertains to 

whether it was “safe to bring her back to work” and 

whether the discipline is “going to be effective and [Davidson] no longer have issues with misconduct.” J.A. 199. 

Rather than considering that the prior demotion was ineffective in changing Davidson’s behavior as an aggravating 

factor warranting an increased penalty, Smith’s testimony 

focused on the prospective effectiveness of discipline in the 

current matter to ensure a safe work environment. Thus, 

Smith did not determine that an increased penalty was 

warranted because the prior discipline was ineffective, but 

because, based on the seriousness of the conduct at issue in 

this discipline and the uniquely demanding work 

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8 GOLDENBERG v. BOP

environment, a demotion would be ineffective to ensure the 

safety of the institution.

The failure to notify Davidson of the limited use of the 

prior demotion in the course of the proceedings before the 

agency was not in and of itself sufficiently serious to 

amount to a due process violation, particularly since Davidson made no effort on appeal to demonstrate how such 

knowledge would have enabled her to better argue against 

the penalty of removal. See Do v. Dep’t of Hous. and Urb. 

Dev., 913 F.3d 1089, 1097 (Fed. Cir. 2019) (failures to notify 

do not violate due process if the procedural errors were minor). Accordingly, we agree with the government that the 

record does not demonstrate that Smith relied on the prior 

demotion as an aggravating factor, and thus there was no 

violation of Davidson’s due process rights.

CONCLUSION

We have considered Goldenberg’s remaining arguments but find them unpersuasive. For the foregoing reasons, the arbitrator’s decision is affirmed.

AFFIRMED

COSTS

No costs.

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