Kyen M. Hill v. Department of Defense

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KYEN M. HILL,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2024-1695
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-18-0361-I-1.
______________________
Decided: April 7, 2026
______________________
DAVID BRANCH, Law Office of David A. Branch, Wash-
ington, DC, argued for petitioner.
JOSHUA DAVID TULLY, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
ELIZABETH MARIE HOSFORD, PATRICIA M. MCCARTHY,
BRETT SHUMATE, LIRIDONA SINANI.
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HILL v. DEFENSE 2
______________________
Before DYK, SCHALL, and PROST, Circuit Judges.
SCHALL, Circuit Judge.
DECISION
Kyen M. Hill petitions for review of the final decision
of the Merit Systems Protection Board (“Board”) that sus-
tained the action of the Department of Defense (“Agency”)
that removed Mr. Hill from his position of Police Officer,
AD-0083-07 at the Pentagon Force Protection Agency
(“PFPA”) in Arlington, Virginia. Hill v. Dep’t of Def., No.
DC-0752-18-0361-I-1, (Nov. 16, 2018), J.A. 1–46.1 For the
reasons stated below, we affirm.
DISCUSSION
I
The sequence of events pertinent to Mr. Hill’s challenge
to his removal began on December 25, 2015. At that time,
the Agency asserted, Mr. Hill made a racially insensitive
remark to a coworker, Officer Sidney Smith. J.A. 3–4. Af-
ter a third officer reported the remark, the Agency pro-
posed that Mr. Hill be suspended from his job for five days
based on the charge of “conduct unbecoming of a police of-
ficer.” J.A. 3, 16.
While the proposed suspension was under considera-
tion, Mr. Hill presented to PFPA’s Deputy Chief, Major
1 The November 16, 2018 initial decision of the ad-
ministrative judge (“AJ”) became the final decision of the
Board on February 13, 2024, pursuant to 5 C.F.R.
§ 1200.3(b), because the Board did not have a quorum to
consider Mr. Hill’s petition for review of the initial decision.
J.A. 409. Accordingly, all citations herein to the decision of
the Board are to the AJ’s initial decision.
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HILL v. DEFENSE 3
William Lagasse, a sworn statement that Mr. Hill said was
given to him by Officer Smith. In the statement, Officer
Smith purportedly stated that Mr. Hill had not made the
remark that had led to the pending disciplinary action.
J.A. 135. Subsequently, the Agency determined that Mr.
Hill had forged the sworn statement that he presented to
Major Lagasse. J.A. 14.
On December 28, 2016, Captain Johnathan Duck-
worth, Mr. Hill’s supervisor, proposed that Mr. Hill be re-
moved from his position. J.A. 2. The proposal was based
on four charges. The first charge was Providing a False
Statement. It was based upon the charge that Mr. Hill had
forged the document he presented to Major Lagasse. J.A.
3. The second charge was Conduct Unbecoming a Police
Officer. It was based upon the charge that Mr. Hill had
made the racially insensitive remark to Officer Smith on
December 25, 2015. J.A. 15. The third charge contained
two specifications: first, that Mr. Hill was observed sleep-
ing on duty on January 25, 2015, J.A. 17, and second, that
he was found sleeping on duty on September 3, 2016, J.A.
24. Finally, in the fourth charge it was alleged that, during
his shift from 6:00pm on January 24, 2015, through 6:30am
on January 25, 2015, Mr. Hill had failed to complete his
assigned duties. J.A. 26.
In a decision dated June 30, 2017, the deciding official,
Major Ronald Wilkins, sustained Mr. Hill’s removal. J.A.
2. Mr. Hill thereafter timely appealed to the Board.
On November 16, 2018, the AJ issued her initial deci-
sion. In it, she determined that the Agency had established
each of the four charges against Mr. Hill by a preponder-
ance of the evidence. See J.A. 3–27. She also determined
that Mr. Hill had failed to establish that, as he alleged,
during the removal process, the Agency had, in several in-
stances, violated his right to due process. J.A. 35–42. Fi-
nally, the AJ found that the penalty of removal was
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HILL v. DEFENSE 4
reasonable. J.A. 42–43. She therefore sustained the action
of the Agency removing Mr. Hill from his position. J.A. 45.2
After the AJ’s initial decision became the final decision
of the Board, Mr. Hill timely appealed. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(9).
II
We must set aside a Board decision if it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C. § 7703.
On appeal, “[t]he petitioner bears the burden of establish-
ing error in the Board’s decision.” Harris v. Dep’t of Veter-
ans Affs., 142 F.3d 1463, 1467 (Fed. Cir. 1998).
III
A
Mr. Hill makes three arguments on appeal. First, he
raises again the several violation-of-due-process claims re-
lated to ex parte communications that he asserted before
the Board. See Appellant’s Br. 13–34. Many of these com-
munications fall under the category of routine communica-
tions about job performance, which under our decision in
Norris v. Securities Exchange Commission do not raise due
process concerns. 675 F.3d 1349, 1353–54 (Fed. Cir. 2012).
The most significant of these due process concerns, he con-
tends, arose from what he says were improper ex parte com-
munications between Major Anthony Brisueno, PFPA
Deputy Division Commander, and Major Wilkins, the
2 In her decision, the AJ also rejected Mr. Hill’s
claims of racial and disability discrimination. J.A. 27–34.
Those matters are not before us on appeal.
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HILL v. DEFENSE 5
deciding official for the removal action. The circumstances
giving rise to this claim are as follows:
While the Agency’s removal action was pending, Major
Brisueno conveyed to Major Wilkins information concern-
ing additional allegations against Mr. Hill. These allega-
tions involved conduct involving Mr. Hill that was separate
and apart from the four charges in the removal action and
that took place after the removal action was commenced.
See J.A. 38–39. Specifically, the AJ noted that Major Bri-
sueno forwarded by email to multiple officers, including
Major Wilkins, a complaint that Mr. Hill had engaged in
aggressive behavior while on duty at another facility pend-
ing a decision on the removal action. J.A. 39. Major Bri-
sueno wrote in the email: “It appears that Officer Hill’s bad
behavior has increased while in the work place [sic]. This
is affecting Everyone who comes in contact with him or en-
gaging government employees where ever [sic] he is located
or working.” J.A. 215. Major Brisueno continued, “I think
it’s time for us to consider [Mr. Hill] for admin[istrative]
leave before his behavior [sic] and final decision is made for
his removal.” Id. When he was asked in a subsequent
email why the decision on the removal action was “taking
so long,” Major Brisueno replied by email, “Major Wilkins
will make this a priority case and give us updates on a daily
basis of it[s] progression.” Id.; J.A. 39. Major Wilkins was
copied on all three of these emails. J.A. 215. In rejecting
Mr. Hill’s due process claim based upon these communica-
tions, the AJ stated that there was “no showing that [Major
Wilkins] relied on that information in deciding the appel-
lant’s removal.” J.A. 39–40. She further stated that it was
“unreasonable to expect Major Wilkins would be cut off
from any communication involving the appellant or that
any such communication constituted a prohibited ex parte
communication that influenced his decision to remove the
appellant.” J.A. 40.
Mr. Hill argues that the communications just described
“inherently amount to violations of due process,” citing our
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HILL v. DEFENSE 6
decisions in Stone v. Federal Deposit Insurance Corp., 179
F.3d 1368 (Fed. Cir. 1999), and Federal Education Associ-
ation-Stateside Region v. Department of Defense, 841 F.3d
1362 (Fed. Cir. 2016) (“Federal Education Association”).
Appellant’s Br. 22; see also id. at 20–23. We do not agree.
We stated in Stone 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 oppor-
tunity to respond.” 179 F.3d at 1376. In Stone, the decid-
ing official received ex parte memoranda urging that an
employee be terminated. Id. at 1372–73. Because the em-
ployee had no opportunity to respond to the memoranda,
we concluded that the employee’s due process rights may
have been undermined. Id. at 1377. We therefore re-
manded the case to the Board to determine whether the ex
parte communications were “new and material.” Id. We
explained that, to determine whether information is “new
and material” for due process purposes, the Board should
consider the facts and circumstances of each case, weighing
factors such as: (1) “whether the ex parte communication
merely introduces ‘cumulative’ information or new infor-
mation”; (2) “whether the employee knew of the error and
had a chance to respond to it”; and (3) “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.
In its decision, the Board determined that Major Bri-
sueno’s correspondence to Major Wilkins was “about the
status of a decision regarding the appellant’s proposed re-
moval,” and was merely “suggest[ing] that perhaps the ap-
pellant should be placed on administrative leave pending a
decision.” J.A. 39 (emphasis added). In other words, the
Board did not find the ex parte communications to be “of
the type likely to result in undue pressure upon the decid-
ing official to rule in a particular manner.” See Stone, 179
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HILL v. DEFENSE 7
F.3d at 1377. This finding is supported by substantial evi-
dence in the form of the language used by Major Brisueno
in the pertinent correspondence quoted above. We thus see
no due process violation here. See id. at 1376–77 (“[N]ot
every ex parte communication is a procedural defect so sub-
stantial and so likely to cause prejudice that it undermines
the due process guarantee and entitles the claimant to an
entirely new administrative proceeding.”).
Mr. Hill relies on Federal Education Association as
supporting the proposition that “communications from a
deciding official’s supervisors to the deciding official sug-
gesting a certain result on a pending discipline are ‘a par-
adigmatic example of the type of communication likely to
result in undue pressure’ even if it does not ‘direct, officially
recommend, or even pressure an outcome.’” Appellant’s Br.
20 (quoting Federal Education Association, 841 F.3d at
1368–69). Mr. Hill’s reliance on Federal Education Associ-
ation is misplaced since that decision was later vacated.
See Fed. Educ. Ass’n-Stateside Region v. Dep’t of Defense,
898 F.3d 1222 (Fed. Cir. 2018).3 Moreover, here the Board
3 The deciding official in Federal Education Associa-
tion received ex parte correspondence from his supervisor
stating that “we need to try and terminate” the employee
“for repeated use of corporeal [sic] punishment and for in-
subordination.” 841 F.3d at 1369. In the original panel
decision, our court concluded that the employee’s due pro-
cess rights had been violated because the nature of this
communication, particularly in light of the strong language
used and the specificity of the rationale, “create[d] a high
risk that a subordinate decision-maker would have been
unduly pressured to terminate the employee,” regardless of
whether the deciding official believed he had actually been
unduly influenced. Id. at 1369–70. After issuance of the
panel decision, the Department of Defense filed a petition
for rehearing. The en banc Court granted the petition for
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HILL v. DEFENSE 8
did not conclude that the communications at issue “sug-
gest[ed] a certain result” on Mr. Hill’s pending disciplinary
action. Instead, in this case the Board reasonably deter-
mined that the language of the ex parte communications
pertaining to Mr. Hill merely suggested that he be placed
on administrative leave pending the outcome of a decision
on his removal. J.A. 39.
Finally, as noted, on appeal Mr. Hill argues that the AJ
erred in rejecting his additional violation-of-due-process
claims. See Appellant’s Br. 13–17, 23–32. We have consid-
ered all of the arguments Mr. Hill makes in that regard and
have found them not persuasive.
B
Mr. Hill’s second argument on appeal is that he was
improperly subjected to double punishment. Mr. Hill was
placed on enforced sick leave after he was found asleep on
shift on January 25, 2015. Mr. Hill argues that the en-
forced leave was punishment he already received for the
conduct alleged in Charges 3 and 4.
The AJ concluded that Mr. Hill was placed on sick leave
for the purpose of evaluating his general fitness for his po-
sition rather than as punishment for either falling asleep
or failing to complete his assigned duties on January 25,
rehearing and vacated the panel decision. Fed. Educ.
Ass’n-Stateside Region v. Dep’t of Def., 873 F.3d 903, 904
(Fed. Cir. 2017). Before deciding the case on the merits,
the en banc Court discovered there was a question as to the
timeliness of the filing of the petition for review. Fed.
Educ. Ass’n-Stateside Region, 898 F.3d at 1223. The en
banc court sent the case back to the panel, which dismissed
the appeal as untimely. Id. at 1226. In any event, the facts
of Federal Education Association are totally different from
those here.
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HILL v. DEFENSE 9
2015. J.A. 35–36; see Nguyen v. Dep’t of Homeland Sec.,
737 F.3d 711, 716–17 (Fed. Cir. 2013). The AJ’s conclusion
is supported by substantial evidence including testimony
from Captain Duckworth. Furthermore, Mr. Hill was de-
termined to have been sleeping on duty on a different occa-
sion, which would be sufficient to sustain Charge 3. See
Guise v. Dep’t of Just., 330 F.3d 1376, 1380 (Fed. Cir. 2003)
(citing Lachance v. Merit Sys. Prot. Bd., 147 F.3d 1367,
1371 (Fed. Cir. 1998)).
C
Mr. Hill’s third argument on appeal is that the AJ’s
finding that the Agency established Charge 1 (Providing a
False Document) and Charge 2 (Conduct Unbecoming a Po-
lice Officer) is not supported by substantial evidence. This
issue requires little discussion. Having considered the rec-
ord, we conclude that the AJ’s findings regarding Charges
1 and 2 are supported by substantial evidence in the form
of documents and witness testimony. On the latter point,
the AJ found the testimony of Agency officials credible and
the testimony of Mr. Hill on significant matters not credi-
ble. Mr. Hill has given us no reason to disturb these cred-
ibility determinations, which are “virtually unreviewable.”
Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed.
Cir. 1986).
CONCLUSION
For the foregoing reasons, we affirm the final decision
of the Board sustaining Mr. Hill’s removal from his posi-
tion.
AFFIRMED
COSTS
No costs.
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