[00:00:00] Speaker 02:
Case number 22-3319, Anthony W. Perry, appellant, versus Gina Raimondo, United States Secretary of Commerce, et al.

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Mr. Zielinski, amicus curiae for the appellant, Ms.

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Baty for the appellees.

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Mr. Zielinski, please.

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Judge Henderson, and may it please the Court, the appellant in this case, Anthony Perry, was a longtime civil servant at the Census Bureau.

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He brought a mixed case in the Federal District Court, and that court erred in its adjudication of the mixed case in two independent respects.

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First, the district court should have afforded Mr. Perry to no vote proceedings on his prestanding federal discrimination claims.

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And second, the district court erred in its analysis reviewing APA style, the Merit System Protection Board's decision to hold an extremely limited jurisdictional hearing in this matter.

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I want to begin with the first issue, which was the matter that the motions panel specifically directed me to address.

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The government now agrees with us that Mr. Perry deserved de novo proceedings in the district court on those freestanding federal discrimination claims.

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But in this appeal, the reason is almost as important as the result.

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The panel has the opportunity to make it clear that when federal employees like Mr. Perry receive a judicially reviewable decision from the Merit Systems Protection Board, they may immediately appeal in the federal district court.

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The government is incorrect when it continues to suggest that employees situated as Mr. Perry is have some other obligation to exhaust their claims

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in some other way before some other agency pursuit.

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Second.

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In this particular case though, he did exhaust, so we don't really need to reach that issue.

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So, Judge Pan, I think that you can opine on it because it's part and parcel of the district court's decision.

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It's essentially the district court decision wrapped up in a new guise.

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What the district court said was, I can't look at these claims because the Merit System Protection Board reached a jurisdictional decision.

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What the government is now suggesting and what it continues to suggest at page 19 of its brief is, in a future case involving a jurisdictional decision, the district court won't be able to address it unless

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It's separately exhausted before the office.

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So I think it's the exact same theory that the district court presented and it's wrapped up in a new guys.

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And that I think there's a pressing need for guidance here because as Justice Ginsburg noted in these cases you typically have a pro se party proceeding on one side and the Department of Justice proceeding on the other.

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The employees are often confused as to what they should do.

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And I think a decision from this court that's very clear that it just doesn't matter what happens.

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All you have to do is receive that judicially reviewable action.

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And then in Mr. Perry's case, it didn't matter.

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So does that give an employee in Mr. Perry's situation who has a mixed case an advantage over

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an employee who has only a discrimination case, isn't it more burdensome to exhaust through the EEOC than it is just to file an appeal with the MSPB?

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I don't think it's actually more or less burdensome one way or the other.

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Mr. Perry actually had the option in this case to initially proceed in front of the agency.

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The way 7702 and 7703 are written is that an employee can choose.

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They can choose to go in front of the agency or they can choose to go in front of the Merit System Protection Board.

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And as to the question about whether it might be easier, Congress decided that it wanted to give employees who had these mixed cases the option.

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They could either proceed in front of the agency, in the EEO process, or they can proceed in front of the board.

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Well, they haven't clearly said whether you still have to exhaust or not.

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Well, I think they have because 7703B2 is very clear.

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Once you have a traditionally reviewable action, you can proceed in 30 days.

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The government, if you read 7703B2 to do something else, then in every single mixed case,

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you would have to exhaust separately your claims.

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And that would actually result in the exact kind of claim splitting that Justice Ginsburg was clear in this very case doesn't have to occur.

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It wouldn't matter whether the decision of the board is labeled jurisdictional, procedural, or on the merits.

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If you read the statute to not permit the discrimination claims to proceed, what you force the employee to do in every case would be to split those claims.

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And this court has never required that.

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Instead... But this hasn't been the focus of the briefing in this case, and I think that's because

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factually speaking, he has exhausted.

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So I don't know why this is the right case for us to decide something that seems kind of important and we haven't had the full benefit of.

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So I understand the concern Judge Pan.

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I think what might be helpful would be to flag this as an issue going forward.

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So at least it's in, when the panel writes its decision, it's at least in the panel decision that there were arguments ventilated on this issue so that the next pro se litigant that comes forward is able to flag this.

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Mr. Perry, when we got to the, when he got in front of the court, he identified the key problem.

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He said, I deserve de novo proceedings.

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I had my judicially reviewable action from the Merit System Protection Board.

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He was able to do that because he had a Supreme Court decision in this case bearing his name.

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The next pro se party may not have that, and so I think some guidance, even if it's simply to flag the issue, would at least be helpful to the district courts that are often left trying to figure this matter out and have frankly on the one hand the government, on the other hand a pro se party, which can be difficult.

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I want to briefly turn, unless the panel has any questions on this issue,

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to the way in which the board erred in this case.

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Mr. Perry's allegations in front of the board were fulsome.

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Mr. Perry alleged that he was given a disability accommodation for a crippling osteoarthritis.

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Mr. Perry then alleged that in 2011, his supervisors threatened to terminate him for following that disability accommodation.

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as a matter of board precedent and frankly as a matter of basic fairness.

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An employee has to be given some notice that the rules have changed before the agency can terminate that employee.

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So putting aside the allegations about informal accommodations for his disability, your client also admitted that he worked on EEO complaints in his car when he was supposed to be at work.

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and that he felt emotionally unable to attend some meetings and didn't go.

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So why don't those admissions support a reasonable belief that they had a right to fire him, making this voluntary?

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So Judge Pan, before I answer the question, I want to be clear that Mr. Perry is not my client, that I was appointed by the court as an advocate.

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Oh, that's right.

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Thank you.

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So I don't actually represent Mr. Perry.

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And I am obviously arguing on his behalf.

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The answer was that Mr. Perry had a flexible work schedule, so he was given a flexible work schedule and he alleges that repeatedly.

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At J-98, for example, he says that my supervisor told me that I could make up time off.

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on the weekends and in the evenings, et cetera.

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And when you have a flexible work schedule, as to the working on the EEO complaints, it is quite possible that Mr. Perry believed that he, given this broad, flexible schedule, was able to some days.

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Do you think that's a reasonable belief that during work hours you can go to your car and work on it?

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I think it goes to the factual questions about the nature of the accommodation and what the what in this particular case as it comes to this court the board decided at its equivalent of a motion to dismiss so it was there was no hearing on this issue there was no factual development so your question Judge Pan I think goes to a factual issue that the board should have fleshed out and that would have required among other things some testimony maybe by his supervisor

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It's a standard of reasonableness though, isn't it?

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It's like they have to reasonably believe that they had a basis to terminate him?

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And working on EO complaints in your car does not provide such a basis?

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Even if you have a flexible plan, is it reasonable to think that you can do that?

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Well, Judge Pan, I do think it might be reasonable, maybe provide an analogy.

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I'm an attorney who works a flexible schedule.

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No one cares whether I show up nine to five.

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And there may be days where I stay at home and I don't work and instead I do something else on a Friday.

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And then I work and make up that time on a Saturday and a Sunday.

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Depending on the nature of Mr. Perry's claims, it may be, or the nature, sorry, of the accommodation and the flexible work schedule, it may be that Mr. Perry quite reasonably believed that yes, he could take his time to work on his EEO complaint, and then given the nature of that broad flexible schedule, then he could make that time up on the weekend.

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But that's a factual matter.

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No, but it seems like you're taking the position that

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A flexible schedule means that an employee can do anything they want, including skipping meetings because he feels emotionally unprepared to go to them.

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So I think that's a separate issue, and it's actually not one that the board focused on.

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The board did not focus on the lack of attendance in meetings.

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What the board instead focused on was that he was, for instance, taking lunch breaks, that he once worked on his car on the EEOC issue.

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The government has no response, by the way, on the lunch breaks.

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So every employee, it appears, was given these lunch breaks and they were held against them in Mr. Perry's case.

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But as to the working in the car, it again depends on the nature of the flexible schedule.

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I understand your argument on that.

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My only other question on this point is the attendance log.

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You say in your brief that that was not, I guess, fair because other employees were not required to

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signed the attendance log and he was, but I don't see why it would be unfair to require the employee who actually had attendance issues, who did things like work on EEO complaints on the cart, to do that and not require other people who didn't have attendance issues to log in.

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So Judge Penn, that may be a reasonable way for the board to have resolved this case.

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The board gets great deference.

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That's not in the board opinion.

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That is a creature of whole cloth from the government's brief.

[00:10:20] Speaker 04:
Well, it's only because you raised that in your brief as a reason.

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I think the board did rely on the fact that he didn't sign the attendance log.

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And then you argue, well, you can't make him sign the attendance log if you don't make everybody sign the attendance log.

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But I think the board can say we reasonably relied on the fact that we told him to sign the attendance log.

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He didn't sign it.

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But the problem to Japan is that Mr. Perry also flagged to the board.

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This is a JA 116.

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He says, quote, no other GS 14 or GS 15 supervisory IT specialist was being required to sign in.

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And so what Mr. Perry said to the board was, I was essentially being treated separately, desperately, from other employees.

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But if the board reasonably thinks that that's appropriate because he's the one with the attendance problems, why isn't that sufficient?

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The problem is that explanation, Judge Pan.

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I agree with you that that could be an explanation.

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That explanation would have to appear on the face of the board's opinion, and it doesn't.

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And so if the board had said that... Why is that?

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Why is that?

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We give them great deference.

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The flip side of the great factual deference is a chennery requirement, which is the requirement to articulate the agency's reasoning, in this case the board.

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If the board's opinion isn't reasoned,

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then the court is being asked to doubly defer, defer on factual determinations.

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No, I understand that.

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But if the board says we're relying on the fact that we told him to log in and he did not, we can discern that that's why.

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And then you're raising all these arguments as to why that's not sufficient.

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They have no merit.

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Why can't we just defer to the board's reasoning?

[00:11:46] Speaker 06:
Because the board never addressed it, Judge Penn.

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So the board, I agree with you, could have said, we think potentially in this circumstance the agency has shown why, even under Mr. Perry's allegations, it might be reasonable to hold Mr. Perry to the signing log and not everybody else.

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The problem is that the agency didn't do that here.

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And when an agency is like the board, is given great deference in its ultimate factual determinations and great deference on its actual determinations on the merits in terms of what remedies to give or not give, I think it's incumbent on the agency

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to follow the analysis that you provided.

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And I want to stress this is not an argument I made up in my brief.

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This is what Mr. Perry argued again at J116.

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The board just ignored it.

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What the board should have done is said, given that Mr. Perry alleged that there was a whole host of other GS14s and GS15s were not being required to sign in, could the agency that threatened to terminate him reasonably believe in that circumstance that it could terminate him?

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And it might be that that goes to a hearing.

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And at the hearing, Judge Pan, the agency says, yes, we're doing this to track Mr. Perry in particular because we had specific concerns about Mr. Perry.

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But that's a series of leaps and inferences that don't appear on the actual face of the board's decision.

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So, counsel, assume we agree with you on this attendance log point.

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Clearly, the primary thing the board was focused on was the first ground for the discharge.

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If we thought the first one was substantiated but not the second, how should we think about that?

[00:13:17] Speaker 05:
It seems one reasonable way would be to think the agency still had a reasonable basis to fire him for the first batch of misconduct that Judge Pan was focusing on.

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So obviously, I would, and I'm not going to fight the hypo, which is that we don't think that the agency was reasoned on either ground.

[00:13:35] Speaker 06:
I think you might still send it back down to the board at that circumstance to determine whether when there is a

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justification for firing someone and one of the justifications happens to be totally irrelevant or not substantial would you still have fired him and would you have known you could fire him in that circumstance so I think there are a number of questions that might flow from that that the board might still want to answer in the first instance and it may be that the board says yeah we're going to continue to abide by our decision

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at which point they'll go back to the district court for de novo review or de novo proceedings on those freestanding federal discrimination claims.

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Okay, I appreciate that.

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So on the first ground, there's sort of part of that charge.

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is that he was entering his time inaccurately.

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So you not only have to show that he had this very unusual accommodation where he could make up his time on Saturday for work he didn't do on Monday, but then he could enter that he worked eight hours a day on Monday.

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And I think one difficulty for Mr. Perry is he doesn't ever say that was approved, which would be a little bit of a stretch.

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So I actually think he does, Judge Garcia.

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In the record, he repeatedly says that his supervisors approved his timecards.

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And those are the same supervisors that are also approving his flexible work schedule.

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So I actually think logically that's precisely what he's arguing.

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And I think that actually that highlights exactly what the board didn't do, Judge Garcia.

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The board did not decide that it didn't parse it apart and say, well, the timecard issue was really the issue.

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And based on his allegations, that was a problem with the timecards.

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And so I think this all has to go back down to the board at a minimum for it to articulate some reasoning.

[00:15:17] Speaker 05:
So essentially on 707, right, there is a sentence that refers to this issue.

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It says he conceded that several of the specifications were attributable to failed communications and times when he failed to correct time and attendance for leave taken.

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And that's referring to his initial response.

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And it seems like so is your your response depends on his later statements in other documents.

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So I think Judge Garcia to be candid.

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There are a series of contradictory statements all over Mr. Perry's pleadings because he is a pro se litigant.

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So I think that the board would then have to explain why it's cherry picking out specific proceedings, specific sentences.

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and not looking at other senses, because there are other senses where Mr. Perry is very clear.

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No, in fact, my supervisors knew exactly what I was doing.

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And I think that perhaps an analogy might help, which is the board was proceeding at the equivalent of a motion to dismiss stage.

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If a district court looked at a complaint at the motion to dismiss stage and did this, it sort of cherry-picked and drew, at the end of the day, credibility determinations, or it sort of fly-specked the complaint, I think this court would say, no, that's inappropriate.

[00:16:35] Speaker 06:
You have to have some factual development.

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You look at the allegations that are falsely alleged, and in this court's vernacular, you sort of take those in the light favorable to the pleading party.

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That's essentially where the board was.

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If there are no further questions, I will... We'll give you a couple of minutes in reply.

[00:16:54] Speaker 03:
Thank you very much, Judge Henderson.

[00:17:18] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:17:21] Speaker 01:
I'd like to start with the discussion of this coercion theory that is now being presented.

[00:17:26] Speaker 01:
And the question here is whether the Census Bureau knew or had reason to know that it had no basis for proposing to remove Mr. Perry.

[00:17:36] Speaker 01:
That is just not something anybody can plausibly allege, given the circumstances.

[00:17:42] Speaker 01:
If we look at what the Census Bureau knew at the time,

[00:17:45] Speaker 01:
They knew that Perry was absent for over 133 hours over this time period, sometimes for entire days, sometimes for entire afternoons.

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They knew that Perry received pay for these hours because he misrepresented the time he was at work on his timesheets.

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They knew that he refused to follow supervisory directions despite being told repeatedly that the attendance laws requirement was mandatory.

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And these facts, as described by the Census Bureau, amply support the proposed removal and they are corroborated by Perry's own statements afterwards.

[00:18:23] Speaker 01:
Perry acknowledges that punishment is warranted.

[00:18:27] Speaker 01:
He says that on page 140 of the appendix, including repayment of the debt that he believed he owed the agency for receiving time for pay, excuse me, for time when he was absent from work.

[00:18:43] Speaker 01:
He does say that he failed to complete leave requests or correct his time in attendance records.

[00:18:49] Speaker 01:
And he also says that he failed to follow the supervisory directive, not to sign the attendance log, excuse me.

[00:18:57] Speaker 01:
And in the notice of proposed removal, he does not advance this theory that he, during this time, he was teleworking in his response to the notice of proposed removal.

[00:19:10] Speaker 05:
Assume he stated adequately that this sign-in log requirement was applied to him and only him out of retaliation.

[00:19:19] Speaker 05:
Would not signing the log still be a basis to fire him?

[00:19:22] Speaker 01:
So I also want to just as a factual matter point out that in his response to the notice of proposed removal, he does not make this point.

[00:19:31] Speaker 05:
Take as given, he makes inconsistent statements in his various statements.

[00:19:35] Speaker 05:
But I'm not sure that Amicus is wrong, that if it was in one single complaint, we wouldn't say, hey, you messed up on page 10.

[00:19:42] Speaker 05:
We would read it in his favor.

[00:19:44] Speaker 01:
Even so, Your Honor, employees who do not follow direct

[00:19:49] Speaker 01:
might say, might point to other employees in the offices and say that their circumstances were the same and that the requirement should have been applied to them too.

[00:20:00] Speaker 01:
But that doesn't mean the Census Bureau had no basis for proposing to remove him.

[00:20:04] Speaker 01:
That an employee might have arguments on the back end or excuses on the back end for why he was refusing to follow this mandatory procedure does not at all remove the basis for the firing.

[00:20:18] Speaker 01:
And that really is the question, because the ultimate question we are looking at here is whether this was voluntary.

[00:20:25] Speaker 01:
This theory of coercion is a subsidiary question.

[00:20:30] Speaker 01:
And there is just no basis to say that the Census Bureau had no grounds for proposing to remove him.

[00:20:40] Speaker 05:
There was some discussion of the exhaustion issue.

[00:20:42] Speaker 05:
Is the government committing not to raise that argument in the future in this litigation?

[00:20:47] Speaker 01:
Absolutely, Your Honor.

[00:20:49] Speaker 01:
I want to be extremely clear that the issue is not presented here.

[00:20:54] Speaker 04:
So on the issue of the discrimination claim, it seems that you misled the district court because you characterized

[00:21:03] Speaker 04:
the whole issue as jurisdictional, the jurisdictional issue as a threshold issue implying that the district court didn't need to reach the discrimination issues.

[00:21:12] Speaker 04:
And I'm just wondering why did you do that and why are you taking a different position now?

[00:21:17] Speaker 01:
We do think that the district court erred in this respect and therefore are recommending that the discrimination claims be remanded in accordance with

[00:21:26] Speaker 01:
I'm not sure if that's the right answer, but I think it is.

[00:21:44] Speaker 01:
would send it back to the MSPB.

[00:21:46] Speaker 01:
And so the question whether the MSPB jurisdictional determination could be considered alone as that threshold issue, I think it would be appropriate.

[00:21:56] Speaker 01:
I will note that the government in its

[00:22:00] Speaker 01:
Motion for summary judgment did recognize that at this juncture the court was not considering the merits of the discrimination claim and endeavored to preserve its arguments in that respect as to the merits of the discrimination claim and we point this out on pages 17 and 18 of our briefing this court.

[00:22:22] Speaker 05:
But I mean, I suppose you could have filed something with the district court after this order came out if you all recognize that there was an error and we might not be here today.

[00:22:33] Speaker 01:
Your Honor, there's quite a process for the government in determining whether to take this step and we followed that process and we are here today with what we believe to be the correct result.

[00:22:46] Speaker 01:
So if there are no further questions, we ask this court to affirm the jurisdictional dismissal and remand on the discrimination claims.

[00:22:53] Speaker 03:
All right, thank you.

[00:22:55] Speaker 03:
Why don't you take two minutes, Mr. Zuliski.

[00:23:07] Speaker 06:
Thank you.

[00:23:07] Speaker 06:
I just want to make two very brief points.

[00:23:11] Speaker 06:
Judge Pan, as to your question to my friend on the other side, for whom I have great admiration and respect, about why the government misled the district court, I think it was clear that the government misled the district court, and that's why I'm asking

[00:23:22] Speaker 06:
this court to provide clear guidance to district courts going forward.

[00:23:26] Speaker 06:
If you look at document 34-3, that is the government's brief that it filed below, the government was very clear about the relief it's requested.

[00:23:35] Speaker 06:
This is page 12.

[00:23:36] Speaker 06:
The government said, for the reasons set forth above,

[00:23:38] Speaker 06:
Defendant respectfully requests that the court affirm the judicial to jurisdictional determination of the MSPB and Dismiss this case if you go to the footnote that my friend on the other side references and that is at page

[00:23:54] Speaker 06:
seven of the same document, the government goes on to preserve if and only if the case, the entire action, is not dismissed for lack of jurisdiction.

[00:24:04] Speaker 06:
So the government was very clear below that it thought these entire things traveled together.

[00:24:08] Speaker 06:
It doubled down in this court when Mr. Perry, to his credit,

[00:24:11] Speaker 06:
filed a pro se motion for summary reversal.

[00:24:14] Speaker 06:
The government said no, no, no.

[00:24:16] Speaker 06:
I've come up with another reason why the district court is correct.

[00:24:19] Speaker 06:
So the reason that I am maybe a little too hot under the collar and requesting that the panel provide some guidance going forward is because there is a great imbalance in these cases between pro se parties and there is a great and pressing need for some guidance going forward so that those pro se parties in the district courts are not left in lurch.

[00:24:38] Speaker 06:
I also just want to make one factual point about what Mr. Perry didn't raise in front of the agency.

[00:24:44] Speaker 06:
My friend on the other side suggested that Mr. Perry in the jurisdictional dispute with the board never raised in his response to the initial jurisdictional determination these various different points.

[00:24:57] Speaker 06:
about, you know, for instance, the fact that other employees were not required to sign the log.

[00:25:01] Speaker 06:
He did.

[00:25:02] Speaker 06:
The document that begins at page JA 114 is titled Complainant Response to Order on Jurisdiction of Board in this matter.

[00:25:10] Speaker 06:
At JA 116, Mr. Perry then goes on to explain the issue, Judge Garcia, that you and I were discussing about the other

[00:25:18] Speaker 06:
individuals who are not disciplined for this behavior.

[00:25:21] Speaker 06:
He also discusses as well the broad disability accommodation he had.

[00:25:24] Speaker 06:
For those reasons, we would respectfully request that the court reverse this decision and remand for further proceedings.

[00:25:30] Speaker 06:
Thank you.

[00:25:31] Speaker 03:
All right.

[00:25:31] Speaker 03:
Mr. Zelinski, you were appointed as our amicus, and you've done an outstanding job.

[00:25:37] Speaker 03:
And we thank you.

[00:25:39] Speaker 03:
And I also know you have a wonderful teacher in Miss Stetson.

[00:25:44] Speaker 06:
I do and I'm very appreciative of Ms.

[00:25:46] Speaker 06:
Detson.

[00:25:46] Speaker 03:
Thanks a lot.

[00:25:47] Speaker 06:
Thank you very much, Judge Henderson.