Kali Washington v. Federal Bureau of Prisons

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KALI WASHINGTON,
Petitioner
v.
FEDERAL BUREAU OF PRISONS,
Respondent
______________________
2023-1566
______________________
Petition for review of arbitrator Roger Abram’s decision
in No. 220120-02725.
______________________
Decided: February 12, 2025
______________________
J OHN-E D L ONG BISHOP , Whitehead Law Firm, Baton
Rouge, LA, argued for petitioner. Also represented by J ACK
K. WHITEHEAD, J R..
L IRIDONA S INANI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by BRIAN
M. BOYNTON, CLAUDIA BURKE, P ATRICIA M. MCCARTHY .
______________________
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WASHINGTON v. BOP 2
Before H UGHES , STARK, Circuit Judges, and SCHROEDER ,
District Judge.1
STARK, Circuit Judge.
Kali Washington was terminated from her position as
a Senior Correctional Officer at the Federal Detention
Center in Miami, Florida (“FDC Miami”) for three
violations of policy: failure to follow a supervisor’s
instructions, failure to conduct special housing unit
(“SHU”) rounds, and introduction of contraband. An
arbitrator sustained the removal decision and Ms.
Washington appeals. We affirm.
I
The Bureau of Prisons (“BOP”) terminated Senior Cor-
rectional Officer Kali Washington, effective January 13,
2022, for three violations of BOP policy that occurred in
July and August of 2019. The first violation, failure to fol-
low a supervisor’s instructions, was based on Ms. Washing-
ton’s refusal to work mandated overtime on two instances.
FDC Miami policy authorizes supervisors to order correc-
tional officers to work overtime to fill unstaffed positions.
Employees are selected for mandatory overtime based on a
rotating list of eligible officers. On July 19, 2019, Lieuten-
ant Dale Williams ordered Ms. Washington, then the third
employee on the list, to work overtime to cover an overnight
shift. Lieutenant Williams had determined that the two
employees listed ahead of Ms. Washington could not be
mandated due to the hours they had already worked or
other limitations set out in the BOP’s agreement with the
pertinent union. Ms. Washington refused to work the July
19 shift because her son was sick. The next day, a
1 Honorable Robert W. Schroeder III, District Judge,
United States District Court for the Eastern District of
Texas, sitting by designation.
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WASHINGTON v. BOP 3
supervisor2 again ordered Ms. Washington to work a man-
datory overtime shift, but she again refused, this time stat-
ing that she had already worked mandated overtime on
July 18 and was therefore not the next eligible officer on
the rotating list. Lieutenant Williams referred the incident
to the BOP’s Office of Internal Affairs (“OIA”), which con-
ducted an investigation and found “sufficient evidence to
support the allegation of Failure to Follow Supervisor’s In-
structions.” J.A. 1157.
The second violation was Ms. Washington’s failure to
conduct surveillance rounds in FDC Miami’s SHU. As part
of her job, Ms. Washington was sometimes assigned to
work in the SHU, a “jail within a jail” that houses high-
security-level inmates who are kept in cells for 23 hours a
day. J.A. 278; see also J.A. 502-03 (“[T]he [SHU] is where
we house inmates that are either disruptive, do not comply
with the rules and regulations, or we need to keep safe from
the other inmate populations pending an investigation.”).
FDC Miami’s SHU is divided into four quads: northeast,
northwest, southeast, and southwest. BOP policy requires
that “[a] staff member must observe all inmates confined
in [the SHU] . . . [in] rounds . . . to be conducted on an ir-
regular schedule and no more than 40 minutes apart.” J.A.
1184.
On August 24, 2019, Ms. Washington was staffed as
the SHU #2 officer for a shift spanning 1:45 p.m. to 9:45
p.m., along with Officers Jason Patrick (the SHU #1, and
therefore primary, officer) and Anibal Martinez (the SHU
#3 officer). BOP policy provides that the SHU #2 and SHU
2 The record is unclear as to whether it was Lieuten-
ant Williams or another supervisor, Lieutenant Moselina,
who ordered Ms. Washington to work the overtime shift on
July 20. Compare J.A. 1121 (Referral of Incident report
stating Lt. Williams gave order) with J.A. 1123 (witness af-
fidavit stating Lt. John Moselina gave order).
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WASHINGTON v. BOP 4
#3 officers are responsible for assisting the SHU #1 officer
“in maintaining the overall safety, security and orderly
running of the” SHU. J.A. 1191, 1195. At 6:43 p.m. that
night, Officer Patrick discovered that an inmate in the
northwest quad had committed suicide in his cell. An in-
vestigation into the circumstances leading to the suicide
revealed video surveillance footage showing that none of
the three on-duty SHU officers had performed the required
rounds on the northwest quad between 4:06 p.m. and 5:17
p.m., a period of 71 minutes. Consequently, FDC Miami’s
Warden at the time, Geo Ramirez, referred all three on-
duty SHU officers to OIA for failure to follow policy. OIA
determined through its investigation that Officer Martinez
had falsified logs to indicate that he had made rounds in
the northwest quad every 30 minutes when, in fact, he had
not actually done so.
The same video surveillance footage led to the third
charge against Ms. Washington: introduction of contra-
band. She was seen in the video performing rounds while
wearing a Bluetooth-enabled earpiece, specifically an Ap-
ple AirPod, in her right ear. Ms. Washington later admit-
ted that she “violated policy when [she] brought the ear
phones into the institution.” J.A. 1208. She explained that
the AirPods “were connected to [her] watch and [she] used
them to listen to music [she had] saved on [her] watch,”
adding that without a phone the AirPods were “not capable
[of] operating independently to make calls.” Id. An OIA
investigation sustained the charge of “Unauthorized Elec-
tronic Device Introduction.” J.A. 1222; see also J.A 1016
(policy prohibiting officers from “[i]ntroducing . . . contra-
band into or upon the [prison] grounds . . . without the
CEO’s knowledge and consent”).
On March 17, 2021, Ms. Washington received a pro-
posal letter from the BOP recommending she be suspended
for 35 days as discipline for the three violations of policy.
Nearly five months later, on August 3, 2021, the BOP sent
Ms. Washington a new proposal letter, this one rescinding
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WASHINGTON v. BOP 5
the proposed 35-day suspension and instead recommend-
ing termination. On January 13, 2022, the then-FDC Mi-
ami Warden, Eugene Carlton, terminated Ms.
Washington’s employment, effective immediately. Warden
Carlton’s letter analyzed each of the factors laid out in
Douglas v. Veterans Admin., 5 MSPB 313, 5 M.S.P.R. 280,
307-08 (1981),3 and concluded “there is no alternative but
to remove [Ms. Washington] from [her] position.” J.A.
1256.
Ms. Washington appealed the decision to an arbitrator.
In addition to assessing whether the three charges against
Ms. Washington should be sustained, the arbitrator also
evaluated “whether [Ms. Washington’s] misconduct war-
ranted her removal after twelve years of service to the
Agency [i.e., the BOP].” J.A. 10. The arbitrator, while rec-
ognizing that removal is a serious penalty, concluded that
Ms. Washington’s removal was “for just and sufficient
cause.” J.A. 14. In reaching this conclusion, he found that
Ms. Washington’s own affidavits substantially supported
the BOP’s charges against her. In particular, the arbitra-
tor found that Ms. Washington “knew about the Agency’s
mandated overtime procedure” and, when she refused to
work mandated overtime, “demonstrated ‘a marked defi-
ciency’ in the performance of her job functions.” J.A. 12.
The arbitrator also sustained the charged failure to con-
duct SHU rounds based on his finding that Ms. Washing-
ton “admitted that she did not perform all her [SHU]
rounds.” J.A. 11. With respect to the contraband charge,
the arbitrator determined that “[e]lectronic devices such as
AirPods fall into [the contraband] category,” which
3 In taking adverse action against an employee, an
agency such as the BOP “must demonstrate that the pen-
alty imposed was reasonable in light of the relevant factors
set forth in Douglas.” Malloy v. United States Postal Serv.,
578 F.3d 1351, 1356 (Fed. Cir. 2009).
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WASHINGTON v. BOP 6
includes “anything that could threaten the security and or-
derly running of an institution,” adding that Ms. Washing-
ton demonstrated “her attitude of indifference towards
[BOP] policy” by bringing contraband into the prison. J.A.
13. Finally, in response to Ms. Washington’s complaint
that the BOP had failed to complete its investigation
within the recommended 120-day period, the arbitrator
concluded that she had not been prejudiced by the delay
because she “was certainly on notice that all these matters
were being investigated.” J.A. 13. The arbitrator ulti-
mately concluded that the penalty of termination was war-
ranted.4
Ms. Washington timely appealed. The arbitrator had
jurisdiction pursuant to 35 U.S.C. § 7121(d). We have ju-
risdiction to review the arbitrator’s decision pursuant to 5
U.S.C. § 7121(f) and 5 U.S.C. § 7703(b).
II
We review an arbitrator’s decision under the same
standard we apply to decisions of the Merit Systems Pro-
tection Board. See 5 U.S.C. § 7121(f). Under this standard,
we must “set aside any agency action, findings, or conclu-
sions found to be (1) arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or reg-
ulation having been followed; or (3) unsupported by sub-
stantial evidence.” 5 U.S.C. § 7703(c). “Substantial
evidence is such relevant evidence as a reasonable mind
4 The arbitrator indirectly referenced some of the
Douglas factors in his decision. See e.g., J.A. 12 (“She had
been thoroughly trained on her duties as a SHU officer, and
she offered no contrition or excuse for her failure.”); id.
(“[Ms. Washington] knew about [BOP] mandated overtime
procedure.”); J.A. 13 (“Even long seniority counts for only
so much.”).
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WASHINGTON v. BOP 7
might accept as adequate to support a conclusion.”
McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320, 1325 (Fed.
Cir. 2005) (internal quotation marks omitted). Ms. Wash-
ington “bears the burden of establishing that the arbitrator
committed reversible error.” Boss v. Dep’t of Homeland
Sec., 908 F.3d 1278, 1280 (Fed. Cir. 2018).
III
On appeal, Ms. Washington challenges the misconduct
charges against her and alleges that the BOP committed
several prejudicial procedural errors. We address each ar-
gument in turn.
A
Ms. Washington largely concedes that it was not arbi-
trary and capricious for the BOP to find she failed to follow
a supervisor’s instructions to perform mandatory overtime.
In her affidavit, Ms. Washington declared that she did not
remember being mandated to work on July 19, 2019, but
she nonetheless “acknowledge[d] that [she] must have told
the Operations Lieutenant ‘No’ on July 19, 2019, when
asked to stay for the overtime shift.” J.A. 1128. As for the
July 20, 2019 mandate, Ms. Washington admitted to re-
ceiving the mandate to work and refusing it based on her
mistaken belief that she had responded to a mandate ear-
lier that week. Ms. Washington acknowledges in her brief-
ing on appeal that “the evidence and testimony could have
sustained . . . the failure to work mandated overtime
[charge].” Open. Br. 35.
BOP’s Standards of Employee Conduct state that
“[e]mployees are to obey the orders of their superiors at all
times.” J.A. 1015. Ms. Washington signed a form acknowl-
edging that her “conduct is governed by” these Standards
of Employee Conduct. J.A. 1068. As Ms. Washington ad-
mitted to not complying with her supervisor’s instruction
to work mandated overtime, and does not argue on appeal
that she was somehow permitted to refuse the order, we
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WASHINGTON v. BOP 8
have no basis to disturb the arbitrator’s decision to uphold
the BOP’s finding of a violation.
B
Ms. Washington contends that substantial evidence
does not support the arbitrator’s decision sustaining the
charge that she failed to conduct surveillance rounds in the
SHU on the evening that an inmate committed suicide. We
disagree.
BOP policy requires that “[a] staff member must ob-
serve all inmates confined in [the SHU] . . . [in] rounds . . .
to be conducted on an irregular schedule and no more than
40 minutes apart.” J.A. 1184. It is undisputed that no staff
member observed all inmates confined in the northwest
quad of the SHU between 4:06 p.m. and 5:17 p.m., a total
of 71 minutes, on the evening of August 24, 2019, and that
shortly thereafter an inmate in the northwest quad was
found to have committed suicide.5 The only dispute is
whether there was something improper in the BOP holding
Ms. Washington responsible for this failing. There was not.
Ms. Washington explains to us, as she earlier did to the
BOP and the arbitrator, that she and another SHU Officer
5 Both the Warden and the arbitrator noted in their
respective decisions that no SHU round was performed in
the northwest quad between 6:00 p.m. and 6:30 p.m. that
same night, during which time the inmate may have com-
mitted suicide. See J.A. 11 (arbitrator finding “[d]uring the
time Ms. Washington was not doing her rounds, a prisoner
hung a sheet in his cell and committed suicide”); J.A. 1255
(removal decision stating “the required SHU rounds that
were missed, especially during the time frame between
6:00 p.m. to 6:30 p.m., may have assisted in preventing the
suicide of [the] inmate”). Ms. Washington at no point ar-
gues that she or any other SHU officer completed the 6:00
p.m. to 6:30 p.m. round on the northwest quad.
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WASHINGTON v. BOP 9
on duty, Officer Martinez, agreed to split that day’s rounds
between themselves, with Ms. Washington performing
rounds on the southeast and southwest quads and Officer
Martinez agreeing to complete rounds on the northeast and
northwest quads. She contends that this informal agree-
ment relieved her of any personal responsibility for con-
ducting rounds in the northeast or northwest quads for
which, in her view, Officer Martinez bore sole responsibil-
ity. The government acknowledges that dividing rounds in
this manner is a common and permissible practice. See
Gov. Br. at 31 (“[T]he officers were free to divide the rounds
up . . . .”); id. at 32 (“[O]nly one officer must actually walk
the SHU’s corridors . . . .”); id. at 33 (“SIA Newsome and
the Warden’s testimony both acknowledged that splitting
up the required rounds among the officers on duty does oc-
cur.”); see also J.A. 1186 (post orders requiring “a staff
member will make rounds and observe the activity of every
inmate” every 30 minutes). Officer Martinez, not Ms.
Washington, also fraudulently initialed a log, falsely indi-
cating that he had completed rounds every 30 minutes in
the northwest quad. But none of this absolves Ms. Wash-
ington of her responsibility – a responsibility Officers Mar-
tinez and Patrick each also bore – to ensure that all the
required rounds were conducted in all parts of the SHU,
including the northwest quad. We are not tasked with as-
sessing the relative culpability of Ms. Washington com-
pared to her fellow officers, only with determining whether
there is substantial evidence that Ms. Washington failed to
fulfill her own obligation to ascertain that all quads in the
SHU were regularly inspected on a schedule complying
with the policy. We find that there is such evidence, as we
describe below.
In her affidavit, Ms. Washington acknowledges the re-
alities of her responsibility. There she admitted “[t]he
range rounds were not assigned to any specific individual”
and “it was the responsibility of all Special Housing staff to
[e]nsure rounds were complete.” J.A. 1172. While she does
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WASHINGTON v. BOP 10
not admit that she violated this policy, she does admit it
was “a violation of policy [to] allow[] 1 hour and 11
minutes” to elapse between rounds, which is precisely what
occurred on August 24, with respect to the rounds in the
northwest quad. J.A. 1172. These facts provide substan-
tial evidence for the BOP’s finding that Ms. Washington vi-
olated policy by failing to conduct SHU rounds.
Ms. Washington’s arguments against this conclusion
are unavailing. Ms. Washington points out, correctly, that
the arbitrator repeatedly stated that Ms. Washington ad-
mitted she failed to conduct her rounds. See J.A. 2 (“Most
significantly, she failed to complete her rounds in the
[SHU] . . . .”); J.A. 3 (“The Grievant admitted that she did
not do all her rounds on August 24, 2019.”). To the extent
the arbitrator was finding that Ms. Washington admitted
she did not conduct rounds in the southeast and southwest
quads, the areas of the SHU she and Officer Martinez
agreed she would do rounds on, this finding is incorrect.
However, any error in connection with this finding is harm-
less given the undisputed fact that no SHU officer con-
ducted rounds in the northwest quad for 71 minutes. See
Valles v. Dep’t of State, 17 F.4th 149, 152 (Fed. Cir. 2021)
(applying harmless error rule to appeal of removal deci-
sion). As we have explained, because all three SHU officers
were responsible for ensuring that rounds were conducted
in all parts of the SHU, the fact that this did not occur is
sufficient to provide substantial evidence for the arbitra-
tor’s finding that Ms. Washington failed to follow policy.
Ms. Washington also suggests that the BOP erred in
pursuing an unfair policy that essentially imposes strict li-
ability on any SHU officer who happens to be on duty when
another SHU officer does not live up to commitments made
to a fellow officer. See Reply Br. at 1 (“[T]he [BOP] insists
that all officers should work as detectives and examine
clues on their shifts to determine whether their fellow of-
ficers are actually performing their rounds. These officers
should be highly suspicious of one another and not trust
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WASHINGTON v. BOP 11
anything that the other officers say because, ultimately,
they could be held accountable for another officer’s ac-
tions.”). Whether or not her accusations accurately char-
acterize the BOP’s policy, Ms. Washington has not
identified any legal bar to the BOP’s policy and its enforce-
ment of it here.
Thus, again, substantial evidence supports the BOP’s
finding that Ms. Washington violated policy by failing to
conduct SHU rounds.
C
Ms. Washington argues that the arbitrator erred by
adopting the BOP’s finding that she violated its policy
against introducing contraband into the facility by bring-
ing AirPods into FDC Miami for her personal use. BOP
Program Statement 3420.11, “Standards of Employee Con-
duct,” states:
Introducing or attempting to introduce contraband
into or upon the grounds of any Federal correc-
tional institution, or taking or attempting to take
contraband out of it, without the CEO’s knowledge
and consent, is prohibited.
Staff may bring personal items into or upon the
grounds of an institution, unless otherwise prohib-
ited by the Warden. Such items must remain in
the possession of the employee, and /or be secured
away from inmates, and disposed of properly when
no longer needed.
J.A. 1016. The “Staff Entrance and Search Procedures”
provision of Program Statement 3740.02 provides a defini-
tion of “Prohibited Objects” which includes “electronic de-
vices,” at least when such devices “could jeopardize the
[BOP’s] ability to ensure the safety, security, and orderly
operation of [BOP]facilities, and protect the public.” J.A.
1333, 1335-36. The BOP alleged that Ms. Washington
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WASHINGTON v. BOP 12
violated these policies because AirPods are “electronic de-
vices.” J.A. 1228.
In a case presenting different circumstances we might
be required to interpret arguable ambiguities in these pol-
icies. Here, however, there is essentially nothing for us to
analyze because Ms. Washington herself, in her affidavit,
expressly admitted she violated BOP policy: “I do
acknowledge[] that I violated policy when I brought the ear
phones into the institution.” J.A. 1208; see also Oral Arg.
at 1:50-2:10 (counsel acknowledging Ms. Washington’s ad-
mission regarding contraband).6 On this record, Ms. Wash-
ington has failed to show any abuse of discretion by the
arbitrator or the BOP.
D
Finally, Ms. Washington argues that the arbitrator
committed several prejudicial procedural errors. We are
unpersuaded.
First, Ms. Washington contends that the arbitrator was
required to reweigh the Douglas factors because, in her
view, the Warden admitted that she had performed one of
the allegedly incomplete rounds, so at least one of the
grounds for her removal was not proven. While Warden
Carlton did testify before the arbitrator that Ms. Washing-
ton had performed rounds between 5:00 p.m. and 5:30 p.m.,
this only undermined the evidence for specification number
2 of charge 1, leaving intact – in the view of the Warden,
and us as well – the substantial evidence that Ms. Wash-
ington was liable on specifications 1 and 3 of charge 1 (i.e.,
the failure to conduct SHU rounds between 4:30 p.m. and
5:00 p.m., and again between 6:00 p.m. and 6:30 p.m.). J.A.
587 (Warden Carlton admitting mistake as to specification
6 Available at https://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=23-1566_1204202
4.mp3.
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WASHINGTON v. BOP 13
2 of charge 1); J.A. 635-36 (Warden Carlton stating he “100
percent” agreed removal was appropriate despite mistake
on specification 2). Thus, the original charge remained in-
tact, even if one of the three underlying specifications – any
one of which could have sustained the charge – was in er-
ror. Consequently, there was no requirement that the ar-
bitrator reweigh the Douglas factors.
Second, Ms. Washington insists that she was preju-
diced by unreasonable delay in the BOP investigation into
her case, and that the arbitrator abused his discretion by
finding otherwise. Ms. Washington’s removal became ef-
fective in January 2022, two and one-half years after her
charged misconduct, which occurred in July and August of
2019. Because investigations of this nature are supposed
to be completed within a recommended 120 days, see J.A.
214-15, Ms. Washington asserts that she was prejudiced by
the slow pace with which the investigation of her conduct
proceeded.
While the length of time the BOP took in completing its
investigation is regrettable, and several witnesses Ms.
Washington would like to have called to testify before the
arbitrator were no longer employed by the BOP when her
hearing was finally held, Ms. Washington has failed to
show that the “delay was harmful to . . . her defense.” Vil-
lareal v. Bureau of Prisons, 901 F.3d 1361, 1366 (Fed. Cir.
2018). That is, she has not demonstrated that the delay
“substantially impair[ed her] rights such that it likely
caused the agency to reach a different decision than it
would have otherwise.” Id. (internal quotation marks omit-
ted). The BOP bore the burden of proving the charges
brought against Ms. Washington and it presented the evi-
dence it believed would meet that burden, including by call-
ing the witnesses it chose to call. See generally Archuleta
v. Hopper, 786 F.3d 1340, 1352 (Fed. Cir. 2015). While the
BOP was obligated to “pay travel and per diem expenses”
for certain employee witnesses, J.A. 984, Ms. Washington
has cited nothing precluding other witnesses from being
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WASHINGTON v. BOP 14
called as well. The record is devoid of any indication that
Ms. Washington attempted to subpoena witnesses to tes-
tify on her behalf or was precluded from doing so. More
importantly, the only relief Ms. Washington sought for the
BOP’s failure to bring certain witnesses to the hearing –
Officers Martinez and Patrick, Warden Ramirez, Captain
J. Weirich (the initial proposing official), Captain Miguel
Medina (the second proposing official), and SIA Bobby Roy
– was a request that the arbitrator draw an adverse infer-
ence against the agency. See J.A. 753-55 (“[W]e will be for-
mally requesting an adverse inference be made concerning
the non-testimony of these called witnesses.”). But Ms.
Washington has not appealed the arbitrator’s denial of this
request, see Oral Arg. at 3:42-4:02 (Ms. Washington’s coun-
sel agreeing denial of adverse inference is not part of ap-
peal), leaving us no basis to take any action.
Ms. Washington, in her reply brief, also argues she was
prejudiced because the BOP modified its policy during the
pendency of her case to require a heightened penalty, ter-
mination, when a correctional officer violates policy in con-
nection with an inmate suicide. See J.A. 166-67 (Human
Resources testifying that BOP raised Ms. Washington’s
penalty because “disciplinary got more strict as far as SHU
rounds” following Jeffrey Epstein’s suicide). This argu-
ment was forfeited because it was not included in her open-
ing brief. See SmithKline Beecham Corp. v. Apotex Corp.,
439 F.3d 1312, 1319 (Fed. Cir. 2006) (“Our law is well es-
tablished that arguments not raised in the opening brief
are [forfeited].”). In any event, even though the Warden’s
initial proposed punishment was a 35-day suspension, ter-
mination was always available as a possible sanction even
before the policy change, and the 35-day proposal was
never finally imposed on Ms. Washington. See J.A. 1030
(listing removal as possible sanction for first offense of fail-
ure to carry out work assignments or obey direct order);
J.A. 1040 (same for introduction of contraband). Nor does
Ms. Washington cite any authority making it improper to
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WASHINGTON v. BOP 15
sanction her under the policy in effect at the time the sanc-
tion was being imposed.
Third, Ms. Washington alludes to her due process
rights having been violated. See Open. Br. at 25 (“The Ar-
bitrator’s Decision . . . Violated [Ms. Washington’s] Due
Process Rights”). The alleged due process violation ap-
pears to be BOP’s supposed failure to provide Warden Carl-
ton with certain potentially mitigating documentary
evidence. See id. at 26 (“[Ms. Washington’s] performance
evaluations were not included in the discipline packet to
Warden Carlton.”); id. at 31 (“[V]ital documents, such as
security footage of her executing her duties, were absent
[from her case].”); id. at 32 (“The [Human Resources] man-
ager only shared documents that supported Officer Wash-
ington’s termination with the Warden, leaving her with
insufficient documentation to defend herself.”). We are not
in a position to evaluate the merits of Ms. Washington’s ar-
gument, however, as she has failed to cite record support
or any authority in support of her contentions. See
SmithKline, 439 F.3d at 1320 (“[A] passing reference to an
issue . . . will not suffice to bring that issue before this
court.”).
Finally, Ms. Washington argues she was prejudiced be-
cause one official, Captain Weirich, signed the 35-day sus-
pension proposal letter, while a different official, Captain
Medina, later substituted for Captain Weirich and then re-
scinded and replaced the suspension with a proposal for
termination. Ms. Washington contends that our decision
in Boddie v. Department of Navy, 827 F.2d 1578 (Fed. Cir.
1987), held that “[w]hen the proposing official is substi-
tuted for another official at the last minute, it constitutes
a harmful error.” Open. Br. 29. This mischaracterizes the
scope of our holding in Boddie. There, we determined that
the Navy’s “last-minute substitution” – specifically, the re-
placement of the proposing official, who was the employee’s
first-level supervisor, by a higher-ranked official – “de-
prived [the employee] of his right, granted in the Navy
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WASHINGTON v. BOP 16
Yard’s regulation, to have his own first-level supervisor
propose the charges against him and the discipline to be
imposed on him.” Boddie, 827 F.2d at 1580; see also Bross
v. Dep’t of Commerce, 389 F.3d 1212, 1216-18 (Fed. Cir.
2004) (assessing whether substitution of proposing official
violated employee’s rights under labor agreement that pro-
vided “Division Chiefs or their equivalents will normally
serve as both Proposing and Deciding Official”). Ms. Wash-
ington has not identified any similar regulation applicable
here or alleged a right to have a specific official propose or
decide the discipline for her misconduct. Therefore, her ar-
gument lacks merit.
In sum, Ms. Washington’s procedural arguments pro-
vide no basis for reversal.
V
We have considered Ms. Washington’s remaining argu-
ments and find they lack merit. Accordingly, for the rea-
sons given above, we affirm the arbitrator’s judgment
sustaining the BOP’s termination of Ms. Washington for
her violations of BOP policy.
AFFIRMED
COSTS
No costs.
Case: 23-1566 Document: 56 Page: 16 Filed: 02/12/2025

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