In Hill v. Department of Defense (CAFC No. 2024-1695 (nonprecedential) 4/7/2026) the appeals court addresses Mr. Hill’s efforts to overturn his removal. The whole affair began when Mr. Hill while on the job made a racially insensitive statement to a coworker, Officer Smith. An officer who overheard the remark reported Hill, thus leading to the agency proposing a 5-day suspension for “conduct unbecoming of a police officer.” (Opinion p. 2)
While trying to defend against the proposed suspension, Mr. Hill compounded his problems by providing a sworn statement he claimed Officer Smith had provided Hill, swearing that Mr. Hill had not made the alleged insensitive remark. The agency looked into it and found that Mr. Hill had in fact forged the sworn statement of Officer Smith. Oops.
This bad idea to falsify Smith’s statement led the agency to take a closer look at Mr. Hill. The agency eventually proposed Mr. Hill’s removal for four reasons: (1) providing a false statement; (2) conduct unbecoming a police officer; (3) two instances of Mr. Hill sleeping on duty; and (4) Hill’s failure to carry out his assigned duties on the shift where he was observed sleeping. (Pp. 2-3)
Once the agency’s final decision to remove Hill was issued, he appealed to the Merit Systems Protection Board (MSPB). His main contention was that the agency violated his due process rights. The MSPB Judge disagreed and sustained his removal. Mr. Hill appealed to the federal court arguing that MSPB’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;” did not follow proper procedures; and was unsupported by the evidence. (P 4)
Pointing to Mr. Hill’s most significant argument on appeal—that an agency official engaged in an ex parte communication during the pendency of the removal decision—the court agrees with the MSPB’s finding that the communication in question to the deciding official was to discuss whether Hill should be put on administrative leave while the action was pending. As the court stated, “We thus see no due process violation here…Not every ex parte communication is a procedural defect…” (p 7)
Mr. Hill also creatively argued that he had been subjected to double punishment because he had been put on enforced sick leave after the sleeping-on-duty episodes and thus was being punished twice by citing this as support for removal. The MSPB Judge found the sick leave was so that Mr. Hill could be medically evaluated for explanation as to his fitness for duty following the sleeping episodes. The Judge found that did not amount to double punishment. (p. 8)
As to the false document and conduct unbecoming charges, the court was not persuaded: “This issue requires little discussion.” (p. 9) MSPB’s decision is affirmed by the court.
In this situation the police officer—who as a law enforcement official should have known better—managed to transform a 5-day suspension into removal by his boneheaded move of falsifying a fellow officer’s sworn statement. It is hard to fathom why he would not assume the agency would look into the veracity of the sworn statement, presumably by asking the police officer who allegedly provided it to Hill to defend himself. In any event, he is for all intents and purposes out of appeals and remains fired.
