Case: 19-1534    Document: 36      Page: 1   Filed: 09/15/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                  ROBERTO RAMIREZ,
                      Petitioner

                              v.

     DEPARTMENT OF HOMELAND SECURITY,
                  Respondent
            ______________________

                        2019-1534
                  ______________________

    Petition for review of an arbitrator’s decision by Don B.
 Hays.
                   ______________________

                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, Wash-
 ington, DC, argued for respondent. Also represented by
 ETHAN P. DAVIS, ROBERT EDWARD KIRSCHMAN, JR., LOREN
 MISHA PREHEIM.
                   ______________________
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 2                                             RAMIREZ v. DHS




     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 ar-
 bitrator’s final award sustaining his removal from his job
 as a Customs and Border Protection Officer for the Depart-
 ment of Homeland Security. Mr. Ramirez contends that
 the arbitrator lacked the authority to order another psychi-
 atric 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 con-
 tends that he was denied due process when the agency re-
 fused to provide him with the records of the written
 psychological assessments underlying his psychiatric eval-
 uations. We hold that the arbitrator did not exceed his au-
 thority 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 med-
 ically 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
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 RAMIREZ v. DHS                                               3



 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 re-
 voked Mr. Ramirez’s authority to carry a firearm and re-
 quired him to complete a fitness-for-duty evaluation, which
 included a psychiatric evaluation. His first evaluation was
 inconclusive. The examining psychiatrist, Brian Skop, re-
 ported 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 “to-
 tally forthcoming” during the assessment.

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 “re-
 stricted 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 Multi-
 phasic Personality Inventory (“MMPI”), 1 a test frequently
 used to aid in the diagnosis of mental disorders, and each


     1   As part of Dr. Skop’s evaluation, Mr. Ramirez com-
 pleted the MMPI-2 version of the assessment, and as part
 of Dr. Nahmias’s evaluation, Mr. Ramirez completed the
 MMPI-2 RF version.
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 4                                            RAMIREZ v. DHS




 assessment consisted of a series of true-or-false questions
 about Mr. Ramirez’s emotions, attitudes, thinking, and be-
 haviors. 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 defensive-
 ness”:
     On the MMPI-2, Dr. Frederick indicates that Of-
     ficer 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. Fred-
 erick is that it is invalid because he was extremely defen-
 sive 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 evalua-
 tions 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 ex-
 aminations reveal any indication that he suffered from a
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 RAMIREZ v. DHS                                           5



 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] eval-
 uation” and that Dr. Nahmias nonetheless found
 Mr. Ramirez to be “extremely defensive” and not fully co-
 operative in the second assessment.

 vided 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. Freder-
 ick.
     After several months, during which Mr. Ramirez con-
 tested the proposed removal orally and in writing through
 his union representative, the Agency issued a decision let-
 ter officially removing Mr. Ramirez. The decision again
 cited Dr. Nahmias’s finding that Mr. Ramirez was defen-
 sive 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.
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 6                                             RAMIREZ v. DHS




     The arbitrator held two hearings during which the par-
 ties 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. Fred-
 erick.
     Mr. Ramirez’s counsel then objected to the Agency’s in-
 troduction 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 objec-
 tion 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 testi-
 mony of his own expert witness, Vittorio Tomas Puente,
 who administered another MMPI assessment to Mr.
 Ramirez and interpreted his scores as within a range typi-
 cally 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 In-
 terim 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 nec-
 essary, the arbitrator declined to credit Dr. Puente’s testi-
 mony 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 ser-
 vice.” J.A. 33. At the same time, the arbitrator explained
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 RAMIREZ v. DHS                                            7



 he was not prepared to take the risk of ordering
 Mr. Ramirez’s reinstatement because the totality of the ev-
 idence indicated that he had caused the medical uncer-
 tainty 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 material and adverse inference”
 against Mr. Ramirez when reaching a final decision.
 J.A. 34–35. The Interim Award did not address
 Mr. Ramirez’s objections to the Agency’s medical evidence
 based on its failure to produce the MMPI records.
     Mr. Ramirez appealed the Interim Award to this court,
 challenging the arbitrator’s jurisdiction to order another
 evaluation. This court dismissed the appeal for lack of ju-
 risdiction because the award was not final for purposes of
 judicial review. Ramirez v. Dep’t of Homeland Sec., No. 18-
 1371 (Fed. Cir. Feb. 22, 2018) (per curiam), J.A. 121–124.
      Thereafter, in July 2018, Mr. Ramirez reported for an-
 other fitness-for-duty evaluation, which was conducted by
 another psychiatrist, Donna Yi. As part of the evaluation,
 Mr. Ramirez completed another MMPI assessment, which
 was reviewed by the same psychologist, Dr. Frederick, who
 again interpreted the results as invalid “because of high
 defensiveness.” J.A. 140. Based on this interpretation and
 a review of the full record, Dr. Yi concluded that “a deter-
 mination of the employee’s potential dangerousness to him-
 self or others cannot be made and I cannot declare that he
 is safe to return to the workplace.” J.A. 145.
     Following Dr. Yi’s evaluation, Mr. Ramirez requested
 from the Agency a copy of all records related to the evalua-
 tion, including the new MMPI assessment. The Agency
 again denied the request on the ground that it did not
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 8                                               RAMIREZ v. DHS




 receive the test records from Dr. Yi. J.A. 125–126.
 Mr. Ramirez challenged the Agency’s response in a submis-
 sion to the arbitrator. J.A. 55–56. He also renewed his
 earlier objections to the Agency’s medical evidence and re-
 quested that the arbitrator order the Agency to produce the
 MMPI records.

hearing, the arbitrator is-
 sued a “Final Award” affirming Mr. Ramirez’s removal,
 this time concluding that the Agency had established by a
 preponderance of the evidence that Mr. Ramirez was unfit
 to meet the conditions of employment. J.A. 42–46. In
 reaching his decision, the arbitrator determined that “Dr.
 Yi’s professional conclusions . . . , in our judgment, essen-
 tially confirmed the disqualifying conclusions previously
 expressed by the agency and other psychiatric examiners.”
 J.A. 43–45. The arbitrator also denied Mr. Ramirez’s re-
 quest to order the Agency to produce the records of his
 MMPI assessments and declined to reopen the evidentiary
 record for a new hearing.

for review by this court. We
 have jurisdiction under 5 U.S.C. §§ 7121(f), 7703(b)(1) and
 28 U.S.C. § 1295(a)(9).
                          DISCUSSION
       As with decisions of the Merit Systems Protection
 Board, this court may overturn an arbitrator’s ruling only
 if it is arbitrary, capricious, an abuse of discretion, contrary
 to law, unsupported by substantial evidence, or obtained
 without following procedures required by law. 5 U.S.C.
 § 7703(c); 5 U.S.C. § 7121(f); Do v. Dep’t of Hous. & Urban
 Dev., 

, 1093 (Fed. Cir. 2019); Brook v. Cor-
 rado, 

, 526 (Fed. Cir. 1993). On this appeal,
 Mr. Ramirez contends (1) that the arbitrator exceeded his
 authority by ordering a new psychiatric evaluation and re-
 considering the merits of Mr. Ramirez’s removal after issu-
 ing the Interim Award and (2) that the Agency’s denial of
 access to the records of the MMPI assessments deprived
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 RAMIREZ v. DHS                                             9



 Mr. Ramirez of due process. We address these arguments
 in turn.
                               I
     Mr. Ramirez contends that the arbitrator’s jurisdiction
 over his case terminated once the arbitrator had evaluated
 the parties’ evidence and stated that the expert opinions
 proffered by the Agency failed to satisfy its burden of es-
 tablishing just cause by a preponderance of the evidence.
 At that point, according to Mr. Ramirez, the arbitrator was
 obligated to order reinstatement and lacked authority to
 take any other action in the case. We disagree.
     Mr. Ramirez’s argument relies primarily on the doc-
 trine of functus officio, Latin for “task performed,” which
 dictates that once an arbitrator has rendered a final deci-
 sion on a submitted issue, he has no further authority, ab-
 sent agreement by the parties, to redecide that issue. See
 20 WILLISTON ON CONTRACTS § 56:100 (4th ed., May 2020
 update); see also, e.g., United Brotherhood of Carpenters &
 Joiners of Am. v. Tappan Zee Constructors, LLC, 

, 277 (2d Cir. 2015); Kennecott Utah Copper Corp. v.
 Becker, 

, 1270–1271 & n.4 (10th Cir. 1999);
 Teamsters Local 312 v. Matlack, Inc., 

, 991 (3d
 Cir. 1997). Traditionally, the doctrine served to protect the
 neutral and reasoned judgments reached by arbitrators
 during their time as “ad hoc judges” in a case from any
 amendments motivated by ex parte influence that may
 arise when the arbitrators resume their roles in private life
 at the end of a case. See 

–92. More
 recently, courts have questioned the continued applicabil-
 ity of these concerns, particularly in the context of labor
 disputes, and have crafted exceptions and limitations to
 the functus officio doctrine to more narrowly protect the ar-
 bitrator’s reasoning about a decision, the distribution of an
 award, and the parties’ expectations about their rights and
 liabilities.

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 10                                              RAMIREZ v. DHS




     This court has not previously considered the question
 of when an interim award by an arbitrator constitutes a
 final decision that triggers functus officio. Other jurisdic-
 tions considering the question have held that the finality of
 an otherwise interim award depends at least in part on
 whether the award states that it is final and whether the
 arbitrator so intended. See Legion Ins. Co. v. VCW, Inc.,
 

, 720 (8th Cir. 1999) (holding that for purposes
 of the functus officio doctrine, “[w]hether the award indi-
 cates that [it] is final and whether the arbitrator intended
 the award to be final are factors in determining if an arbi-
 tration award is final” (second alteration in original) (quot-
 ing Local 36, Sheet Metal Works Int’l Ass’n v. Pevely Sheet
 Metal Co., 

, 949 (8th Cir. 1992))); Bosack v.
 Soward, 

, 1103 (9th Cir. 2009) (adopting the
 rule that “an interim award may be deemed final for func-
 tus officio purposes if the award states it is final, and if the
 arbitrator intended the award to be final”). We agree with
 our sister circuits that an arbitrator’s intent, as expressed
 in the language of the arbitral award, should guide our as-
 sessment of whether an interim award is a final decision
 that terminates the arbitrator’s authority over the issues
 addressed in the award. When an arbitrator makes clear
 that an interim award reflects only a preliminary assess-
 ment of the evidence and retains jurisdiction to render a
 final award based on additional evidence, there is little con-
 cern that new findings in a subsequent award would defeat
 the parties’ reasonable expectations about their rights and
 liabilities. In such cases, the arbitrator also retains his role
 as a neutral adjudicator pending the issuance of the final
 award, alleviating the potential for intervening ex parte in-
 fluence. Thus, we hold that an arbitrator does not lose the
 authority to further consider a submitted issue by an-
 nouncing an interim finding when the award expressly de-
 fers a final decision on that issue pending the availability
 of additional evidence.
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 RAMIREZ v. DHS                                            11



     Neither of the decisions relied on by Mr. Ramirez sup-
 port a different rule. In U.S. Department of Transporta-
 tion, FAA, Northwest Mountain Region, Renton,
 Washington, and National Air Traffic Controllers Associa-
 tion, the Federal Labor Relations Authority found that an
 arbitrator lacked the authority to reverse its earlier deci-
 sion that an agency had violated its collective bargaining
 agreement. 64 F.L.R.A. 823, 825–26 (2010). There, how-
 ever, the arbitrator had issued a cease and desist order
 based on his finding of a violation, thus making clear that
 he had reached his final decision on the merits.

 The arbitrator had also expressly limited his remaining ju-
 risdiction to resolving the question of remedy.

 Similarly, in Butterkrust Bakeries v. Bakery, Confectionery
 and Tobacco Workers International Union, AFL-CIO, Local
 No. 361, the Eleventh Circuit held that an arbitrator had
 no remaining authority to order an employee’s conditional
 reinstatement because the arbitrator had unequivocally
 concluded that the employee’s disciplinary record “justified
 the termination.” 

, 699-700 (11th Cir. 1984).
 In both cases, it was clear from the arbitrator’s decision
 that he had reached a decisive determination on the ques-
 tion presented and had thereby terminated his own juris-
 diction on that question.
     Here, in contrast, the Interim Award expressly “de-
 ferr[ed] all aspects” of the arbitrator’s final decision, in-
 cluding the question of just cause. J.A. 34. While the
 arbitrator opined that the medical evidence presented by
 the Agency fell short of satisfying its burden, he did so in
 the context of explaining the need for additional evidence
 to resolve the medical uncertainty over Mr. Ramirez’s fit-
 ness for duty, including whether it was appropriate to draw
 an adverse inference from the invalidity of his MMPI
 scores. The Interim Award was therefore not a final deci-
 sion that terminated the arbitrator’s authority to further
 consider the Agency’s justification for Mr. Ramirez’s re-
 moval. For these reasons, we will not, as Mr. Ramirez
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 12                                              RAMIREZ v. DHS




 requests, treat the findings in the Interim Award as final
 and give effect to them by ordering his reinstatement. 2
                                II
     We next consider whether Mr. Ramirez was afforded
 due process in challenging the basis for his removal in light
 of the Agency’s refusal to provide him with access to the
 records of his MMPI assessments.
     In general, public employees possess a constitutionally
 protected property right in their employment and are enti-
 tled to due process at each stage of their removal proceed-
 ings. See Cleveland Bd. of Educ. v. Loudermill, 

, 538 (1985); Stone v. Fed. Deposit Ins. Corp., 

, 1374–76 (Fed. Cir. 1999). “The essential require-
 ments of due process . . . are notice and an opportunity to
 respond.” 

. The precise re-
 quirements of due process in each case are not “wooden ab-
 solutes” and must be judged according to the demands of
 the particular situation. See Morrissey v. Brewer, 

, 481 (1972); Ferguson v. Thomas, 

, 856
 (5th Cir. 1970).
     In determining the process due to an individual in a
 given context, a court must consider (1) the private interest
 that will be affected by the official action; (2) the risk of an


      2  We decline to address here the separate question of
 whether, apart from the finality of the findings in the In-
 terim Award, the arbitrator exceeded his authority by or-
 dering Mr. Ramirez to undergo a psychiatric evaluation.
 While Mr. Ramirez asserts in passing that the new evalu-
 ation was “something the parties did not ask for or author-
 ize,” Appellant’s Br. 15–16, he fails to present any
 substantive arguments for why an arbitrator lacks the au-
 thority to order a new evaluation concerning an employee’s
 fitness for duty under the terms of the parties’ collective
 bargaining agreement and applicable regulations.
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 RAMIREZ v. DHS                                            13



 erroneous deprivation of such interest through the proce-
 dures used, and the probable value, if any, of additional or
 substitute procedural safeguards; and (3) the Govern-
 ment’s interest, including the function involved and the fis-
 cal and administrative burdens that the additional or
 substitute procedural requirement would entail. Mathews
 v. Eldridge, 

, 335 (1976). At the same time,
 the courts have recognized that one “relatively immutable”
 principle of due process is that “where governmental action
 seriously injures an individual, and the reasonableness of
 the action depends on fact findings, the evidence used to
 prove the Government’s case must be disclosed to the indi-
 vidual so that he has an opportunity to show that it is un-
 true.” Greene v. McElroy, 

, 496 (1959); Hicks
 v. Comm’r of Soc., 

, 797 (6th Cir. 2018); see
 also ASSE Int’l, Inc. v. Kerry, 

, 1076 (9th Cir.
 2015) (acknowledging that “fundamental fairness—the
 touchstone to determining whether a plaintiff received
 due process—requires that a party against whom an
 agency has proceeded be allowed to rebut evidence offered
 by the agency if that evidence is relevant.” (citations and
 internal quotation marks omitted)).
      This court has not previously decided whether and
 when due process requires a government agency to provide
 its employee with the records of psychological testing un-
 derlying an adverse fitness-for-duty evaluation that leads
 to the employee’s removal. In comparable circumstances,
 the Fifth Circuit has held that when a government agency
 removes its employees based on drug charges established
 through urinalysis, due process requires that the employ-
 ees have access to samples of the urinalysis for independ-
 ent verification. Banks v. Fed. Aviation Admin., 

, 94–96 (5th Cir. 1982). In Houston Federation of Teach-
 ers, Local 2415 v. Houston Independent School District, the
 district court relied on the reasoning in Banks in conclud-
 ing that a school district violates the due process rights of
 its teachers when it bases retention decisions on the results
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 14                                           RAMIREZ v. DHS




 of a proprietary assessment without providing the teach-
 ers with any opportunity to review and assess the accuracy
 and validity of the testing data and methodology. 251 F.
 Supp. 3d 1168, 1178–80 (S.D. Tex. 2017).
     We reach a similar conclusion when we assess the evi-
 dence at issue in this case in light of the Mathews factors
 and the “immutable” principle of due process announced in
 Greene. Here, the record makes plain that the Agency’s re-
 moval of Mr. Ramirez was based on Dr. Nahmias’s recom-
 mendation that he be restricted from carrying a firearm.
 That recommendation was in turn based primarily, if not
 exclusively, on Dr. Frederick’s interpretation of the MMPI
 results as invalid for defensiveness. Thus, the soundness
 of Dr. Frederick’s interpretation was critical to the ques-
 tion of whether the Agency had just cause to remove
 Mr. Ramirez. Dr. Nahmias’s recommendation, and the
 Agency’s removal decision, rested on the assumption that
 Dr. Frederick tabulated the scores correctly and that he ap-
 plied the appropriate criteria in interpreting the scores.
 The only way for Mr. Ramirez to verify or challenge those
 assumptions was to independently review the tests and
 their interpretation by Dr. Frederick.
     Against the critical role of the MMPI records for pro-
 tecting against wrongful deprivation, the Agency made no
 showing that it would have been unduly burdensome to ob-
 tain and produce those records. There is no record that the
 Agency even inquired into the possibility of doing so here.
 While in some instances, “the government’s failure to pre-
 serve and produce such relevant and material evidence
 might be excusable upon a showing of good faith and rea-
 sonable effort,” the fact that the Agency made “no attempt”
 to obtain the evidence at issue undermines any such con-
 clusion in this case. See 

. As the
 Fifth Circuit recognized in Banks, it may be difficult at
 times to “mark an exact balance between relevance and the
 attendant procedural burdens in an administrative pro-
 ceeding”; however, “even the most rudimentary standards
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 RAMIREZ v. DHS                                            15



 of due process” would afford an employee the opportunity
 to access and meaningfully challenge the critical and dis-
 positive pieces of evidence asserted against him.

Ramirez’s request to order production
 of the MMPI records, the arbitrator relied on the following
 reasoning: (1) that the records were not in the Agency’s cus-
 tody, and thus the Agency had no regulatory or contractual
 obligation to produce them; (2) that the Agency itself did
 not directly review or consider the records in making its
 removal decision; (3) that Mr. Ramirez had the opportunity
 to cross-examine Dr. Nahmias and to present testimony
 from his own expert; and (4) that two other psychiatrists,
 Dr. Skop and Dr. Yi, generally concurred with
 Dr. Nahmias’s findings. J.A. 43–45. None of these grounds
 undermines Mr. Ramirez’s due process rights to the rec-
 ords at issue.
      First, as a government entity defending its decision to
 deprive an employee of protected employment, the
 Agency’s obligation to provide Mr. Ramirez with the evi-
 dence underlying its decision stems from more than its reg-
 ulatory and contractual obligations for collective
 bargaining with his union. 3 Rather, the minimum require-
 ments are constitutional. In Banks, the court rejected the
 FAA’s contention that “since it was not in possession of the
 samples, it was under no duty to preserve or order the con-
 trol of the samples.” 

. The fact that
 the Agency contracted for the testing and relied upon it,


     3   While the arbitrator did not identify any specific
 “[r]egulations” that he reviewed in concluding the Agency
 was not obligated to produce the MMPI records, J.A. 43,
 the Agency had based its arguments on 5 U.S.C. § 7114(b),
 which provides that as part of good faith negotiations with
 a union, the agency need only provide the union repre-
 sentative with relevant information “normally maintained
 by the agency in the regular course of business.” J.A. 58.
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 16                                            RAMIREZ v. DHS




 together with the foreseeable importance of the evidence at
 issue to the employee’s defense, obligated the Agency to
 make the evidence available for independent examination
 by the employee.

that the Agency relied indirectly ra-
 ther than directly on the evidence at issue did not excuse
 the Agency from making the evidence available to
 Mr. Ramirez. As the Sixth Circuit recognized in Hicks, an
 agency’s determination “depends on fact findings beyond
 the ultimate factual question at issue, and due process pro-
 tects a person’s right to contest” the basis for the prelimi-
 nary findings that underlie the agency’s ultimate
 

(internal quotation marks
 omitted). Here, the Agency’s conclusion that Mr. Ramirez
 was unfit for duty depended on the preliminary finding
 that he was defensive and uncooperative in completing his
 MMPI assessments. The Agency cannot shield the evi-
 dence underlying that finding from production by simply
 relaying it through the report of another expert.
     Third, the opportunity to cross-examine Dr. Nahmias
 regarding his reliance on the MMPI results did not satisfy
 Mr. Ramirez’s right to independently review and challenge
 the results directly. Even if Dr. Nahmias could be ques-
 tioned on his understanding of the general reliability of
 MMPI assessments, he did not oversee Dr. Frederick’s in-
 terpretation of Mr. Ramirez’s MMPI assessments and thus
 could not opine as to whether Dr. Frederick tabulated the
 responses accurately or interpreted them according to ap-
 propriate criteria—questions that are critical to the propri-
 ety of the Agency’s removal decision in this case. Similarly,
 while Mr. Ramirez’s own expert, Dr. Puente, could admin-
 ister and interpret a new MMPI assessment according to
 his own criteria, his interpretation could not address—and
 indeed rendered all the more material—the question of
 what methods and standards Dr. Frederick applied in
 reaching the interpretations that were relied upon by the
 Agency’s experts and the arbitrator.
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 RAMIREZ v. DHS                                            17



     Fourth, these concerns were not alleviated by the con-
 curring opinions of the three evaluating psychiatrists. All
 of them relied on the interpretation of Dr. Frederick for
 their analysis, and none of them independently assessed
 his work. The repeated evaluations did nothing to dimin-
 ish the likelihood of a fundamental error in Dr. Frederick’s
 analysis.
      In contending that Mr. Ramirez was nonetheless af-
 forded adequate process, the Agency raises one additional
 argument not addressed by the arbitrator: that
 Mr. Ramirez could have tried to obtain the records himself
 from Dr. Nahmias or Dr. Frederick. We are unpersuaded.
 While in certain contexts, an individual who fails to avail
 himself of established procedures for obtaining evidence is
 precluded from later complaining about his lack of access
 to that evidence, see, e.g., Richardson v. Perales, 

, 405 (1971), there was no reasonable expectation here
 that Mr. Ramirez would have been able to obtain the MMPI
 records without the Agency’s cooperation.             Neither
 Dr. Nahmias nor Dr. Frederick had a treating relationship
 with Mr. Ramirez; they were engaged for the purpose of
 responding to the Agency’s inquiries. J.A. 96. Moreover,
 the Agency points to no process by which Mr. Ramirez
 could have compelled records from these third parties in
 time for independent review in advance of a hearing. Cf.
 CVS Health Corp. v. Vividus, LLC, 

, 706–07
 (9th Cir. 2017) (holding that a district court is not permit-
 ted under section 7 of the Federal Arbitration Act, 9 U.S.C.
 § 7, to enforce an arbitrator’s order compelling pre-hearing
 document discovery from a non-party to the arbitration).
 Thus, the mere fact that Mr. Ramirez could have asked Dr.
 Nahmias and Dr. Frederick to provide the MMPI records,
 with no way of obligating them to so, does not relieve the
 Agency of its obligation to produce the evidence that
 formed the basis for its removal decision.
     For these reasons, the arbitrator legally erred in con-
 cluding that Mr. Ramirez lacked a due process right to
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 18                                           RAMIREZ v. DHS




 review and challenge the records of the MMPI assessments
 underlying the Agency’s removal decision.        Because
 Mr. Ramirez was denied this right during arbitration, the
 Final Award must be vacated, and the case remanded to
 provide Mr. Ramirez with the process he was owed.
      We do not, however, agree with Mr. Ramirez that we
 must also vacate the Agency’s removal decision and order
 reinstatement with back pay because he was constitution-
 ally entitled to receive his MMPI records before his re-
 moval. For one, there is nothing in the record indicating
 that Mr. Ramirez pressed his request for his MMPI records
 during pre-removal agency proceedings. The parties also
 did not submit for arbitration the question of whether, in-
 dependent of the merits of the Agency’s decision, deficien-
 cies in the Agency’s pre-removal process constituted a basis
 for overturning his removal. Nor is there any other indica-
 tion in the record on appeal that Mr. Ramirez briefed or
 otherwise asserted this argument before the arbitrator.
 Rather, the record only shows that he objected to the
 Agency’s introduction of evidence relying on the MMPI rec-
 ords when he had no access to them and requested an order
 for the Agency to produce them for independent review.
     We are not persuaded that the Agency’s failure to pro-
 vide Mr. Ramirez with his MMPI records before his termi-
 nation constituted a constitutional violation that cannot be
 remedied through adequate post-termination procedures.
 The Supreme Court has recognized that post-termination
 proceedings may adequately protect a government em-
 ployee’s interest in tenured employment. 

–547. When a full post-termination hearing
 is available, pre-termination proceedings “need not defini-
 tively resolve the propriety of the discharge,” and should
 only serve as “an initial check against mistaken decisions—
 essentially, a determination of whether there are reasona-
 ble grounds to believe that the charges against the em-
 ployee are true and support the proposed action.”

This includes oral or written notice of the
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 RAMIREZ v. DHS                                             19



 charges against him, an explanation of the employer’s evi-
 dence, and an opportunity for the employee to present his
 side of the story.

than this before ter-
 mination “would intrude to an unwarranted extent on the
 government’s interest in quickly removing an unsatisfac-
 tory employee.”

see also 

–76. While we have held that certain due process de-
 ficiencies in pre-removal proceedings, such as ex parte com-
 munications, warrant vacating the removal proceedings in
 their entirety, such violations must be “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.” 

.
      Here, before Mr. Ramirez was terminated, he was no-
 tified of the Agency’s proposal to remove him based on the
 conclusions of his psychiatric evaluations, and he had re-
 ceived the reports of these evaluations, which informed
 him that they relied on MMPI results that neither he nor
 the Agency had reviewed first-hand. That information ex-
 plained the basis for the Agency’s decision and allowed him
 to challenge that decision by pointing out ways in which
 the underlying evidence may have been unreliable. While
 he was ultimately entitled to independently review the
 MMPI results with the assistance of his own expert to test
 their validity and reliability, the fact that he was unable to
 do so during the preliminary pre-removal proceedings is
 not “so substantial and so likely to cause prejudice” as to
 independently justify vacating the removal decision, so
 long as he is ultimately afforded an opportunity to do so
 during post-removal arbitration. 

.
     For these reasons, we hold that when an agency relies,
 directly or indirectly, on the results of a psychological as-
 sessment in justifying an employee’s removal, the agency
 must provide the employee with a meaningful opportunity
 to review and challenge the data, analysis, and results of
 that assessment. Because Mr. Ramirez was denied this op-
 portunity, the Final Award must be vacated.
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 20                                            RAMIREZ v. DHS




     We do not address here the question of what remedies
 would be acceptable should the parties discover, upon re-
 mand, that the relevant records are no longer available.
 That would be an assessment to be made by the arbitrator
 in the first instance, should the need arise. While, as the
 concurrence notes, the considerations set forth in Califor-
 nia v. Trombetta, 

(1984), may provide some
 guidance on the requirements and remedies of due process
 where relevant evidence is destroyed, there are critical dis-
 tinctions between this case and Trombetta.
      First, in concluding that the missing breath samples in
 Trombetta were unlikely to be exculpatory, the Court relied
 on the fact that the breathalyzer used in the analysis had
 been widely validated for accuracy in assessing blood alco-
 hol levels and that the error rates were known to be low.
 

. Here, there is no evidence in the rec-
 ord that the validity scales of the MMPI test have ever been
 scientifically validated to show how often, and under what
 circumstances, “defensiveness”-based invalidity is a relia-
 ble indicator of willful uncooperativeness that warrants an
 adverse inference as to a person’s psychiatric fitness.
     Second, in Trombetta, the defendants had access to the
 most pertinent evidence concerning the most likely sources
 of error in the breath analysis: for calibration errors, in-
 spection of the machine and calibration logs; for external
 radio and chemical interference, investigation of external
 sources of radio waves and the dieting state of the defend-
 ants; for operator error, cross-examination of the police of-
 ficers who administered the test.

 indicates that one of the most likely sources of error in
 Dr. Frederick’s interpretation is the possibility that he
 used a validity range that did not account for the typical
 scores found among law enforcement officers. Yet, Mr.
 Ramirez had no way to determine what numerical criteria
 Dr. Frederick applied in reaching his interpretations of
 MMPI responses at issue here.
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 RAMIREZ v. DHS                                          21



     Third, Trombetta was decided in a context where a re-
 trial with adequate government disclosures was not possi-
 ble, and a recognized due process violation could only be
 remedied by barring further prosecution of a crime or sup-
 pressing the state’s most probative evidence—“troubling
 choices” that would likely allow an alleged crime to go
 unprosecuted and a potentially dangerous individual to go
 free.

Here, the basis for Mr. Ramirez’s re-
 moval was not any alleged crime or misconduct, but failure
 to maintain a condition of employment. Reinstatement in
 this case does not preclude the Agency from ensuring that
 its weapons-carrying employees are fit for duty. If the
 MMPI records are unavailable and the arbitrator deter-
 mines that reinstatement is the only acceptable remedy,
 then the Agency can reevaluate Mr. Ramirez’s fitness im-
 mediately upon reinstatement. At that point, the Agency
 can remove him again with adequate process, if the evi-
 dence warrants doing so, without ever putting a gun back
 in his hand.
                        CONCLUSION
     We have considered the parties’ remaining arguments
 and find them to be either waived or without merit. For
 the reasons discussed, we vacate the arbitrator’s Final
 Award and remand for further proceedings. On remand,
 the arbitrator must order the Agency to provide
 Mr. Ramirez or his designated agent with access to the rec-
 ords of his MMPI assessments, including the assessments
 themselves, his responses, and Dr. Frederick’s interpreta-
 tions. The arbitrator must also provide Mr. Ramirez with
 an opportunity to present new evidence and testimony at a
 hearing concerning these records, and all evidence must be
 considered before issuing a new award.
                 VACATED AND REMANDED
                           COSTS
     No costs.
Case: 19-1534    Document: 36      Page: 22   Filed: 09/15/2020




    United States Court of Appeals
        for the Federal Circuit
                   ______________________

                  ROBERTO RAMIREZ,
                      Petitioner

                              v.

     DEPARTMENT OF HOMELAND SECURITY,
                  Respondent
            ______________________

                         2019-1534
                   ______________________

    Petition for review of an arbitrator's decision by Don B.
 Hays.
                   ______________________

 BRYSON, Circuit Judge, concurring.
     I agree with the court that the arbitrator’s interim rul-
 ing did not constitute a final decision that barred the arbi-
 trator from conducting further review in the matter before
 him. I also agree with the court that this case must be re-
 manded to the arbitrator for further proceedings on the due
 process issue. While I agree with much of what Judge
 Reyna has written in his thoughtful opinion for the court,
 I would couch the remand directive in somewhat different
 terms.
     The court concludes that Mr. Ramirez was denied due
 process when he was unable to obtain access to the MMPI-
 2 tests that he took during each of his fitness for duty ex-
 aminations and to the scoring of those tests done by an
Case: 19-1534    Document: 36      Page: 23    Filed: 09/15/2020




 2                                              RAMIREZ v. DHS




 independent expert. 1 The remedy, according to the court,
 is to remand for the arbitrator to order the production of
 the test results and the scoring of the tests done by the ex-
 pert. I agree with much of the court’s analysis, but I disa-
 gree with the court’s remand order in one respect.
     In my view, the remand order should require the
 agency to ascertain whether the test results and scoring
 reports are available, and to direct the agency to attempt
 to obtain those items if they are available. If the agency
 cannot obtain those materials despite bona fide efforts to
 do so, however, I would treat those materials as unavaila-
 ble and would analyze the due process issue accordingly.
 In that event, in view of the particular circumstances of
 this case, I would not regard the unavailability of the tests
 and the scoring results as necessarily having deprived Mr.
 Ramirez of a fair opportunity to respond to the case against
 him.
                               I
     The agency arranged for three different psychiatrists
 to examine Mr. Ramirez. In addition, the agency arranged
 for a fourth psychiatrist to review certain of the records in
 the case and to offer a further opinion. The principal ques-
 tion posed to those experts was whether, in light of a do-
 mestic incident involving the alleged use of a weapon by
 Mr. Ramirez, the experts could conclude that Mr. Ramirez
 should be qualified to carry a weapon in his official position
 as a Customs and Border Protection Officer. Each of the
 experts declined to state that it was safe for Mr. Ramirez
 to carry a weapon, and each did so based in large part on a



     1   At different times during the course of his psycho-
 logical examinations, Mr. Ramirez took the MMPI-2 and
 the MMPI-2 RF, which is a shorter form of the MMPI-2.
 The two are referred to here as simply the MMPI or the
 MMPI tests.
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 RAMIREZ v. DHS                                            3



 conclusion that Mr. Ramirez was not candid in answering
 questions about himself when he took the MMPI tests.
      In reaching that conclusion, each of the psychiatrists
 relied on the scoring of the MMPI tests Mr. Ramirez took
 during each of the sessions with the three psychiatrists.
 The scorer was Dr. Richard Frederick, a licensed clinical
 psychologist. Dr. Frederick reviewed Mr. Ramirez’s an-
 swers to each of the three MMPI tests and concluded in
 each case that the test was invalid. The tests were invalid,
 according to Dr. Frederick, because Mr. Ramirez’s test re-
 sponses showed that he was not candid but instead was de-
 fensive in the answers he gave. Dr. Frederick did not
 testify at the hearing, and his scoring reports were not of-
 fered into evidence. Rather, the substance of Dr. Freder-
 ick’s scoring reports was presented to the arbitrator
 through the written reports of the three psychiatrists who
 examined Mr. Ramirez and the testimony of one of those
 psychiatrists, Dr. Larry Nahmias.
     Based on the psychiatrists’ findings, the agency refused
 to authorize Mr. Ramirez to carry a service weapon. Be-
 cause his position as a Customs and Border Protection Of-
 ficer required him to be qualified to carry a weapon, the
 agency removed him from his position.
     At the hearing before the arbitrator, the agency de-
 fended its failure to produce copies of the MMPI tests taken
 by Mr. Ramirez and the scoring reports for those tests on
 the ground that the agency did not have those materials in
 its possession and therefore was not obligated to produce
 them. It is true that the psychiatrists who examined Mr.
 Ramirez and administered the tests to him, as well as the
 expert who scored the tests, were not agency employees.
 But all of them conducted their assessments of Mr.
 Ramirez pursuant to contracts that were ultimately funded
 by the agency. The agency therefore appeared to be in a
 better position to obtain the materials related to the MMPI
 tests from the psychiatrists who administered the tests
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 4                                              RAMIREZ v. DHS




 than was Mr. Ramirez. A bona fide request from the
 agency for those materials may well have resulted in their
 production. Instead, the agency simply stood on its posi-
 tion that because it did not have the materials in its pos-
 session, it had no obligation to produce them, or even to
 take steps to attempt to obtain them.
     In its brief, the agency reasserts this position. In addi-
 tion, it argues that the MMPI tests and the scoring results
 were not of critical importance to the agency’s decision that
 Mr. Ramirez should not be deemed qualified to serve in his
 position. But neither argument is convincing.
                               A
     Contrary to the agency’s argument, the MMPI test re-
 sults were not simply one factor among many that bore on
 the psychiatrists’ conclusion that Mr. Ramirez was uncoop-
 erative during his examinations. Rather, the test results,
 as analyzed by Dr. Frederick, were given substantial
 weight by each of the psychiatrists.
     Dr. Nahmias, the agency’s principal witness at the
 hearing before the arbitrator, testified that he was unable
 to determine whether Mr. Ramirez had a mental illness or
 personality disorder because Mr. Ramirez “wasn’t fully co-
 operative” and “was not forthcoming, and an important
 part of my evaluation of that, being the MMPI.” J.A. 104. 2
 Dr. Nahmias added that as to any possible mental illness
 on Mr. Ramirez’s part, “I couldn’t come to a conclusion


     2   Dr. Nahmias administered the MMPI to Mr.
 Ramirez. In his report, Dr. Nahmias stated that when in-
 terpreting Mr. Ramirez’s test responses, Dr. Frederick had
 concluded that the test was “invalid because he was ex-
 tremely defensive and closed when he selected his re-
 sponses. He did not cooperate in the assessment by
 providing an open and forthcoming account of his attitudes,
 emotions, behavior or thinking.” J.A. 76.
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 RAMIREZ v. DHS                                              5



 because of his defensiveness about mental illness.” J.A.
 104. Dr. Nahmias further explained that he could not de-
 termine that Mr. Ramirez could safely carry a weapon “pri-
 marily” because of Mr. Ramirez’s “defensiveness and . . . .
 unwillingness to complete the MMPI-2 RF” and “secondar-
 ily” because of Mr. Ramirez’s “decision to present himself
 in the best possible light, his unwillingness to really talk
 about himself and his own issues with feelings, except to
 say he didn’t have any problems.” J.A. 105.
      Neither of the other two examining psychiatrists testi-
 fied at the hearing, but each submitted a report on which
 the agency relied in its presentation to the arbitrator. The
 first, Dr. Brian Skop, reported that Dr. Frederick had indi-
 cated that Mr. Ramirez was
     extremely defensive when he completed the ques-
     tionnaire. He denied having any significant psy-
     chological 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 forthcom-
     ing account of his emotions, attitudes, behavior, or
     thinking. Consequently, his responses are not in-
     terpretively useful. The test is invalid due to ex-
     treme defensiveness.
 J.A. 68. Based in part on that assessment of Mr. Ramirez’s
 responses on the MMPI test, Dr. Skop concluded that he
 was not able to obtain evidence of dangerousness. He
 added that “there was evidence that the employee was not
 totally forthcoming during the assessment.” J.A. 69. Be-
 tween that and Mr. Ramirez’s wife’s unwillingness to dis-
 cuss the details of the incident that led to the referral, Dr.
 Skop concluded, like Dr. Nahmias, that he could not
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 6                                              RAMIREZ v. DHS




 confidently say that Mr. Ramirez “is not a potential threat
 to self or others.”

      The third psychiatrist to examine Mr. Ramirez was Dr.
 Donna Yi. Like Drs. Skop and Nahmias, Dr. Yi stated that
 in light of Mr. Ramirez’s “limited willingness to accurately
 disclose clinical information about his thoughts, feelings,
 and behavior,” and his wife’s unwillingness to discuss the
 events that led to the evaluation, she could not find that
 Mr. Ramirez had the “ability to use proper judgment and
 execute quick and sound decisions in law enforcement sit-
 uations to protect himself, the public, and other law en-
 forcement personnel.” J.A. 145.
     Dr. Yi administered the MMPI test to Mr. Ramirez and
 relied on Dr. Frederick’s scoring of that test. In her report,
 she included what appears to be a direct quotation from Dr.
 Frederick’s report regarding Mr. Ramirez’s MMPI results:
         Minnesota Multiphasic Personality Inventory-
     2    Restructured       Form    (MMPI-2       RF)—
     interpretation (blind) by Richard I. Frederick, PhD:
         Approach to the Examination: He answered all
     the items. He consistently endorsed items of simi-
     lar content in similar ways. He was highly defen-
     sive and guarded when he selected his responses.
     He characterized himself as a person of exceptional


     3   The agency arranged for another psychiatrist, Dr.
 Marilyn Price, to review Dr. Skop’s report, along with other
 records in the case. Although Dr. Price did not examine
 Mr. Ramirez, she noted Dr. Skop’s observation that Mr.
 Ramirez was “extremely defensive when he completed” the
 MMPI test. Dr. Price reached the same conclusion as Dr.
 Skop, that there was “insufficient information to form an
 opinion about [Mr. Ramirez’s] fitness to perform the full
 range of duties safely and reliably from a mental health
 perspective.” J.A. 157–59.
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 RAMIREZ v. DHS                                              7



     virtue. For example, he reported that he always
     tells the truth, never swears, never gossips, is
     never vain, never procrastinates, likes everyone he
     meets, never acts rashly, and has manners at home
     as good as his manners in public. He did report
     that he has a substance abuse problem. Otherwise,
     he reported that he has no significant mental
     health problems. Because of his highly defensive
     approach to the test, his responses do not likely ac-
     curately reflect his current attitudes, behavior, or
     emotional condition and are therefore not interpre-
     tively useful.
         Summary: Invalid for interpretation because
     of high defensiveness.
 J.A. 140.
                              B
      The agency contended before the arbitrator, and con-
 tinues to argue here, that the agency was not in possession
 of the MMPI records and that it was therefore not required
 to produce them. Contrary to the agency’s argument, how-
 ever, the agency’s potential access to those materials was
 plainly superior to that of Mr. Ramirez. The agency’s ar-
 gument that it was not required to produce what was not
 in its possession ignores the fact that it may have had ef-
 fective control over those materials by virtue of the fact
 that the agency had contracted for the psychiatrists’ ser-
 vices. 4 Given that contractual relationship, the agency
 cannot contend that it need not produce the records simply


     4   The record reflects that the agency procured the
 services of the psychiatrists through an intermediary, a
 company known as PsyBar. J.A. 130. But while the agency
 used a third party to retain the psychiatrists, the agency
 was the ultimate party responsible for obtaining those ser-
 vices.
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 8                                              RAMIREZ v. DHS




 because it does not have actual physical possession of them.
 By analogy, in civil discovery, a party cannot avoid produc-
 ing records simply because it lacks actual physical posses-
 sion of them, as long as it has the right to gain access to the
 records from a third party. See Searock v. Stripling, 

, 653 (11th Cir. 1984) (holding that “control is the
 test” for whether documents need to be produced, where
 control “is defined not only as possession, but as the legal
 right to obtain the documents requested upon demand”);
 see generally 8B Charles Alan Wright et al., Federal Prac-
 tice & Procedure § 2210 (3d ed. 2010) (“control” of materials
 sought in discovery means the legal right or practical abil-
 ity to obtain them). The same commonsense principle
 should apply in the due process context as well.
     In light of the significance attributed to the MMPI rec-
 ords by the psychiatrists and the agency’s potential access
 to those records, the agency should be required to make a
 good-faith effort to obtain those materials from the experts
 who administered and evaluated the tests. If the materials
 can be produced, the arbitration should be reopened to al-
 low Mr. Ramirez to make whatever use he can of those ma-
 terials.
                               II
     If it turns out, however, that the MMPI materials have
 been destroyed or are otherwise unavailable notwithstand-
 ing a good-faith request for their production by the agency,
 the issue becomes not whether the agency has failed to take
 reasonable steps to produce records that are material to
 Mr. Ramirez’s defense, but whether, in the absence of those
 records, Mr. Ramirez has been denied a fair opportunity to
 challenge the agency’s evidence against him.
     On that issue, the Supreme Court’s decision in Califor-
 nia v. Trombetta, 

(1984), provides guidance.
 In that case, the Court held that due process “does not re-
 quire that law enforcement agencies preserve breath sam-
 ples in order to introduce the results of breath-analysis
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 RAMIREZ v. DHS                                              9



 tests at trial” where the defendants had “alternative means
 of demonstrating their innocence.”

If there
 were adequate alternative means by which Mr. Ramirez
 could challenge the evidence against him in the arbitration
 proceeding, the unavailability of the MMPI tests and the
 scoring reports would not deprive Mr. Ramirez of due pro-
 cess. 6




     5    Even in criminal cases, the Supreme Court has
 held that, in the absence of bad faith, due process is not
 violated by the destruction of evidence unless the evidence
 would “both possess an exculpatory value that was appar-
 ent before the evidence was destroyed, and be of such a na-
 ture that the defendants would be unable to obtain
 comparable evidence by other reasonably available
 means.” 

; see also Arizona v.
 Youngblood, 

, 56–57 (1988); Olszewski v. Spen-
 cer, 

, 57 (1st Cir. 2006) (Dyk, J., sitting by des-
 ignation). For purposes of this case, I focus on the “other
 reasonably available means” element addressed in Trom-
 betta.
      6   In his brief, Mr. Ramirez focused his due process
 challenge on the hearing before the arbitrator, not on the
 pre-termination removal hearing before the agency. In oral
 argument, counsel for Mr. Ramirez asserted that he was
 denied due process at both stages. Setting aside Mr.
 Ramirez’s failure to explicitly challenge the adequacy of
 the pre-termination hearing in his brief, I agree with the
 court that his challenge to the pre-termination procedure
 fails, because he had an opportunity to respond in the pre-
 termination hearing before the agency and was subse-
 quently afforded a full adversarial post-termination hear-
 ing before the arbitrator. See Cleveland Bd. of Ed. v.
 Loudermill, 

, 547–48 (1985) (“all the process
 that is due is provided by a pretermination opportunity to
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 10                                             RAMIREZ v. DHS




     In this case, several factors shed light on that question.
 First, Mr. Ramirez was not deprived of an opportunity to
 challenge Dr. Frederick’s assessments of the MMPI tests.
 Mr. Ramirez did so by having his own expert conduct and
 score an MMPI test. Mr. Ramirez’s expert then testified at
 the hearing that the test results did not show that Mr.
 Ramirez was uncooperative and defensive. Although the
 arbitrator did not find the testimony of Mr. Ramirez’s ex-
 pert persuasive, Mr. Ramirez was not barred, either by the
 arbitrator’s ruling or otherwise, from introducing evidence
 as to his state of mind when taking the MMPI tests.
     Second, Mr. Ramirez was able to cross-examine Dr.
 Nahmias, the principal agency witness, at the hearing. In
 so doing, he was able to point out that in several respects
 Dr. Nahmias’s report and testimony were favorable to Mr.
 Ramirez. From that testimony, it might have been inferred
 that Dr. Frederick, who did not examine Mr. Ramirez, was
 mistaken in his assessment of Mr. Ramirez’s cooperative-
 ness when taking the MMPI tests, or that any defensive-
 ness on Mr. Ramirez’s part was limited to the test and did
 not otherwise interfere with the psychiatrists’ ability to as-
 sess his mental stability.
     Third, Mr. Ramirez testified at the hearing that he was
 not willfully uncooperative in his sessions with the psychi-
 atrists. The arbitrator was thus given an opportunity to
 weigh Mr. Ramirez’s credibility in asserting that he was
 cooperative both when taking the MMPI tests and when
 otherwise interacting with the psychiatrists.
     Fourth, as noted above, the psychiatrists’ reports—and
 particularly the report of Dr. Yi—appear to contain close
 paraphrases, if not direct quotes, from Dr. Frederick’s scor-
 ing reports on the MMPI tests. Depending on whether the



 respond, coupled with [adequate] post-termination admin-
 istrative procedures”).
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 RAMIREZ v. DHS                                            11



 psychiatrists confirm that their reports contain the es-
 sence, or the very words, used by Dr. Frederick, the ab-
 sence of Dr. Frederick’s actual reports may be immaterial.
     These factors make this case more like California v.
 Trombetta and less like Banks v. FAA, 

(5th Cir.
 1982), and Houston Federation of Teachers, Local 2415 v.
 Houston Independent School District, 

 (S.D. Tex. 2017), on which Mr. Ramirez relies.
     In Trombetta, the defendants were stopped on suspi-
 cion of driving while intoxicated and were given breath-
 analysis tests. The tests produced positive results, and the
 defendants were prosecuted. The breath samples were de-
 stroyed after testing and were not available for testing by
 the defendants, who contended that the absence of the
 breath samples denied them the right to contest the evi-
 dence against them and thus violated due process.
     The Supreme Court rejected that argument. Among
 other points, the Court noted that even without access to
 the destroyed breath samples, the defendants had alterna-
 tive means to challenge the accuracy of the breath analysis
 results: they were allowed to examine the testing ma-
 chines; they had opportunities to show that other factors
 may have affected the test results; and they were allowed
 to cross-examine the machine operators to show operator
 error. 

.
     By contrast, in Banks and Houston Federation of
 Teachers, the unavailability of evidence that resulted in the
 employees being fired was devastating to the employees’
 efforts to defend themselves. In Banks, the employees were
 fired when their urine samples tested positive for cocaine,
 and the urine samples were destroyed after testing. The
 Fifth Circuit held that the laboratory tests “were the only
 meaningful evidence resulting in the discharges” and that
 “challenging the laboratory reports was probably the only
 way the controllers could succeed in their 

. Because of the importance of the samples, the
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 12                                          RAMIREZ v. DHS




 court held that the government had a duty to ensure the
 preservation of the samples for the defendants’ independ-
 ent examination if the agency intended to rely upon them.

     In Houston Federation of Teachers, the school district
 contracted with a software company to develop a proprie-
 tary algorithm that would be used to evaluate teachers’ im-
 pact on student performance. When the school district
 terminated certain teachers for ineffective performance
 based primarily on that algorithm, the teachers requested
 access to the algorithm to challenge their terminations.
 The software company, however, refused to reveal the al-
 

. The court found that
 the teachers were denied due process because, without ac-
 cess to the algorithm, there was no effective way for the
 teachers to challenge the removal decisions.

      Unlike in Banks and Houston Federation of Teachers,
 it is by no means clear that the disputed evidence at issue
 in this case was destroyed or is otherwise unavailable.
 While Dr. Nahmias stated in response to a question during
 the hearing that he would be “reluctant” to provide MMPI
 results to an employee, J.A. 237, he explained that his re-
 luctance was because he did not wish to provide the MMPI
 results to an untrained individual who would not under-
 stand them. Yet medical records are routinely produced in
 litigation, under appropriate safeguards, and it would not
 be difficult to arrange for the MMPI records to be produced
 to a medical professional representing Mr. Ramirez.

    Even if the MMPI evidence has been destroyed or can-
 not be obtained, Banks and Teachers do not compel
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 RAMIREZ v. DHS                                             13



 reversal of the arbitrator’s decision in this case. 7 Due pro-
 cess would require reversal only if the unavailability of the
 MMPI evidence constitutes a denial of access to evidence
 that has effectively disabled Mr. Ramirez from challenging
 the agency’s presentation against him. Accordingly, on re-
 mand, if the arbitrator determines that the MMPI evidence
 is unavailable, I would require the arbitrator to assess
 whether, notwithstanding the unavailability of that evi-
 dence, Mr. Ramirez still had sufficient means to defend
 against the agency’s case for removing him.

    For the foregoing reasons, I concur with the decision to
 vacate and remand in this case but would frame the re-
 mand order somewhat differently than the court has done.




     7    In addition, Banks was decided before Trombetta,
 in which the Supreme Court held that due process “does
 not require that law enforcement agencies preserve breath
 samples in order to introduce the results of breath-analysis
 tests at trial” where the defendants had “alternative means
 of demonstrating their 

–91.
 The Supreme Court’s decision in Trombetta counsels
 against applying a broad interpretation of the reasoning in
 Banks to find a due process violation here. Id.; see also
 Grimsrud v. Dep’t of Transp., 

, 1366–69 (Fed.
 Cir. 2018) (Lourie, J., concurring in denial of rehearing en
 banc).