Ramirez v. Dep't of Homeland Sec.

• Decision Date: 15 September 2020
• Docket Number: 2019-1534
• Citation: 975 F.3d 1342
• Parties: Roberto RAMIREZ, Petitioner v. DEPARTMENT OF HOMELAND SECURITY, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

975 F.3d 1342

Roberto RAMIREZ, Petitioner

v.DEPARTMENT OF HOMELAND SECURITY, Respondent

2019-1534

United States Court of Appeals, Federal Circuit.

Decided: September 15, 2020

Jessica Horne, Office of General Counsel, National Treasury Employees Union, Washington, DC, argued for petitioner. Also represented by Larry Joseph Adkins, Gregory O'Duden.

Erin Murdock-Park, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Ethan P. Davis, Robert Edward Kirschman, Jr., Loren Misha Preheim.

Before Newman, Bryson, and Reyna, Circuit Judges.

Opinion for the court filed by Circuit Judge Reyna.

Concurring Opinion filed by Circuit Judge Bryson.

Reyna, Circuit Judge.

The petitioner, Roberto Ramirez, seeks review of an arbitrator's final award sustaining his removal from his job as a Customs and Border Protection Officer for the Department of Homeland Security. Mr. Ramirez contends that the arbitrator lacked the authority to order another psychiatric evaluation after stating, in an interim award, that the prior evaluations failed to preponderantly establish that Mr. Ramirez was unfit for duty. Mr. Ramirez further contends that he was denied due process when the agency refused to provide him with the records of the written psychological assessments underlying his psychiatric evaluations. We hold that the arbitrator did not exceed his authority by seeking additional evidence after issuing his interim award. We also hold, however, that Mr. Ramirez was entitled to a meaningful opportunity to review and challenge the written assessments underlying his adverse psychiatric evaluations. Thus, we vacate the final award and remand for further proceedings.

BACKGROUND

Up until his removal in 2016, Roberto Ramirez served as a Customs and Border Protection ("CBP") Officer for the Department of Homeland Security ("the Agency"). The role required him to carry a service firearm and to remain medically qualified to do so.

The events leading to Mr. Ramirez's termination began on the morning of January 26, 2014, when shortly after he left the house following a heated argument, his wife called the police and reported that he had cocked his service weapon and pointed it at her head. Mr. Ramirez denied the allegation. The police later concluded that the allegations were "[u]nfounded," and Mr. Ramirez was not charged with any crime. J.A. 63.

Investigation and Removal

In response to the incident, the Agency temporarily revoked Mr. Ramirez's authority to carry a firearm and required him to complete a fitness-for-duty evaluation, which included a psychiatric evaluation. His first evaluation was inconclusive. The examining psychiatrist, Brian Skop, reported that he obtained no evidence that Mr. Ramirez was "unable to safely, efficiently, and reliably perform all of the duties without restrictions." J.A. 70. At the same time, however, Dr. Skop could not "confidently say" that Mr. Ramirez was "safe to carry a government issued weapon" because there was evidence that he was not "totally forthcoming" during the assessment. Id.

After receiving Dr. Skop's report, the Agency ordered a second evaluation by a different psychiatrist, Larry Nahmias. Dr. Nahmias was also unable to assess Mr. Ramirez's dangerousness or his ability to safely carry a government-issued weapon. J.A. 77–78. Nonetheless, Dr. Nahmias recommended that Mr. Ramirez be "restricted from any weapons carrying position" based on his "lack of full cooperativeness" during his evaluation. J.A. 77–78.

In reaching their medical opinions, Dr. Skop and Dr. Nahmias each relied on results from a written assessment that Mr. Ramirez completed as part of each evaluation. These assessments were versions of the Minnesota Multiphasic Personality Inventory ("MMPI"),¹ a test frequently used to aid in the diagnosis of mental disorders, and each assessment consisted of a series of true-or-false questions about Mr. Ramirez's emotions, attitudes, thinking, and behaviors. Neither Dr. Skop nor Dr. Nahmias interpreted the MMPI assessments himself. Instead, the assessments were tabulated and interpreted by a third-party clinical psychologist, Richard Frederick, who compiled a report for the psychiatrists’ review. According to Dr. Skop's and Dr. Nahmias's reports, Dr. Frederick interpreted the results of each assessment as "invalid" due to "extreme defensiveness":

On the MMPI-2, Dr. Frederick indicates that Officer Ramirez was extremely defensive when he completed the questionnaire. He denied having any significant psychological problems. He wants to be seen as highly emotionally controlled, highly virtuous, tough and effective, and gregarious. He did not cooperate in the assessment by providing an open and forthcoming account of his emotions, attitudes, behavior, or thinking. Consequently, his responses are not interpretively useful. The test is invalid due to extreme defensiveness.

J.A. 68 (Dr. Skop's report); see also J.A. 76 (Dr. Nahmias's report) ("The interpretation of his MMPI-2 RF by Dr. Frederick is that it is invalid because he was extremely defensive and closed when he selected his responses. He did not cooperate in the assessment by providing an open and forthcoming account of his attitudes, emotions, behavior or thinking.").

Both Dr. Skop's and Dr. Nahmias's conclusions that Mr. Ramirez had been uncooperative during his evaluations were based on Dr. Frederick's interpretation of the MMPI assessments. Other than Dr. Frederick's findings, neither Dr. Skop nor Dr. Nahmias identified any other ground in their reports for concluding that Mr. Ramirez was evasive or uncooperative. Nor did their in-person examinations reveal any indication that he suffered from a mental condition that compromised his judgment or his ability to safely handle a firearm. Moreover, there is no dispute that Mr. Ramirez answered every question of his MMPI assessments as requested; Dr. Frederick's finding of defensiveness was based solely on the answers Mr. Ramirez selected for the questions.

Based on Dr. Nahmias's report, the Agency determined that Mr. Ramirez was no longer fit for duty and proposed his removal. J.A. 80–83. Specifically, the deciding officer relied on Dr. Nahmias's recommendation that Mr. Ramirez be restricted from any weapons-carrying position. J.A. 81. The officer further considered that Mr. Ramirez was "given a second opportunity to be more forthcoming in [his] evaluation" and that Dr. Nahmias nonetheless found Mr. Ramirez to be "extremely defensive" and not fully cooperative in the second assessment. Id . The Agency provided Mr. Ramirez with copies of Dr. Skop's and Dr. Nahmias's reports but did not provide him access to the MMPI assessments or their interpretation by Dr. Frederick.

After several months, during which Mr. Ramirez contested the proposed removal orally and in writing through his union representative, the Agency issued a decision letter officially removing Mr. Ramirez. The decision again cited Dr. Nahmias's finding that Mr. Ramirez was defensive and uncooperative in his psychiatric evaluation. J.A. 86. Pursuant to the collective bargaining agreement between his union and the Agency, Mr. Ramirez elected to challenge his removal through arbitration rather than through an appeal to the Merit Systems Protection Board.

Arbitration

The parties presented the arbitrator with the following questions for resolution: (1) whether the Agency had just cause to remove Mr. Ramirez and (2) if not, the appropriate remedy.

The arbitrator held two hearings during which the parties presented evidence and live testimony. Before the hearings, counsel for Mr. Ramirez requested from the Agency copies of Mr. Ramirez's MMPI assessments and Dr. Frederick's tabulation and interpretation of the scores. J.A. 90–92. The Agency denied the requested records on the grounds that it had never obtained them from Dr. Frederick.

Mr. Ramirez's counsel then objected to the Agency's introduction of evidence during the hearing that relied on the MMPI assessments, including the reports of Dr. Skop's and Dr. Nahmias's psychiatric evaluations, on the ground that Mr. Ramirez had been denied access to the test records. J.A. 55, 90. The arbitrator reserved judgment on the objection and allowed the Agency to present its evidence at the hearing. J.A. 55, 90, 92–93.

Mr. Ramirez testified during the hearings that he had been candid in responding to the MMPI assessments and did not know why his responses had been interpreted as uncooperative. J.A. 119–120. He also offered the testimony of his own expert witness, Vittorio Tomas Puente, who administered another MMPI assessment to Mr. Ramirez and interpreted his scores as within a range typically seen among law enforcement personnel. J.A. 191–192. Based on his evaluation, Dr. Puente opined that Mr. Ramirez was fit for duty.

Following the hearings, the arbitrator issued an Interim Award, which ordered Mr. Ramirez to undergo yet another psychiatric evaluation and "defer[red] all aspects associated with a final decision" pending that evaluation. J.A. 34. In concluding that another examination was necessary, the arbitrator declined to credit Dr. Puente's testimony but found that the conclusions of the Agency's medical experts fell "‘technically’ short of preponderantly proving that CBPO Ramirez is currently unfit for CBP service." J.A. 33. At the same time, the arbitrator explained he was not prepared to take the risk of ordering Mr. Ramirez's reinstatement because the totality of the evidence indicated that he had caused the medical uncertainty by deliberately masking his actual mental state. J.A. 33–34. Thus, the arbitrator deferred his decision pending the availability of a "clear and conclusive opinion " regarding Mr. Ramirez's psychological fitness for duty based on a new evaluation. J.A. 34. The arbitrator further provided that if the new evaluation showed that Mr. Ramirez remained uncooperative, then the arbitrator was "prepared to draw a ...