[00:00:00] Speaker 04:
versus H HUD.

[00:00:03] Speaker 04:
Mr. Reiner.

[00:00:58] Speaker 04:
Mr. Renner, you have reserved five minutes of your time for rebuttal, correct?

[00:01:03] Speaker 04:
Yes.

[00:01:04] Speaker 04:
Did I pronounce your name correctly?

[00:01:05] Speaker 02:
Yes, thank you.

[00:01:07] Speaker 02:
You may proceed.

[00:01:09] Speaker 02:
Thank you.

[00:01:09] Speaker 02:
I'm Richard Renner from the College of Arby, Choosy, Newman, and Fitch firm.

[00:01:13] Speaker 02:
I represent Edward Avalos here, the petitioner.

[00:01:16] Speaker 02:
The parties here are in agreement that Edward Avalos committed no misconduct whatsoever.

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He was a good performer.

[00:01:23] Speaker 03:
Does Mr. Avalos have any proof of improper motivation

[00:01:29] Speaker 03:
of political motivation to terminate him other than the article he submitted to the administrative judge?

[00:01:37] Speaker 02:
Well, there's no direct evidence.

[00:01:38] Speaker 02:
But there's never been a requirement that a discriminator admit to their discrimination.

[00:01:44] Speaker 03:
No, no, that wasn't my question.

[00:01:46] Speaker 03:
Yes.

[00:01:47] Speaker 02:
My question was, does he have anything else?

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So we permit both direct and circumstantial evidence.

[00:01:50] Speaker 02:
This would be a case of circumstantial evidence.

[00:01:53] Speaker 01:
Well, what is your circumstantial evidence?

[00:01:55] Speaker 02:
The circumstantial evidence would be the timing.

[00:01:58] Speaker 01:
I mean, isn't that the whole point of the very rule that you are not allowed to move political appointees into career positions at the end of an administration?

[00:02:13] Speaker 01:
So if that timing itself were evidence of discrimination, then it would always be discrimination.

[00:02:19] Speaker 01:
This is an anti-borrowing-in rule, isn't it?

[00:02:23] Speaker 02:
This is a policy of OPM.

[00:02:25] Speaker 02:
But the legal standard for deciding this case begins with a requirement for such a cut.

[00:02:29] Speaker 01:
But if that's the rule, and it's applied uniformly, and there's no suggestion that OPM targeted Mr. Avalos in any way here, is there?

[00:02:39] Speaker 02:
Well, that is the timing argument.

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It wasn't an issue.

[00:02:42] Speaker 01:
But that's not good enough.

[00:02:43] Speaker 01:
This rule is always going to be applied in this circumstance, isn't it?

[00:02:49] Speaker 01:
That's the entire point of the anti-borrowing in rule, to prohibit

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hold over political appointees from prior administrations to burrow into the career service right before the administration ends.

[00:03:03] Speaker 02:
Well, the requirement is that an agency evaluates such applicants in a nondiscriminatory manner and that they get OPM permission.

[00:03:11] Speaker 02:
And there's no dispute here that they failed to get OPM permission before the appointment was made.

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But that was not the fault of Mr. Avalos.

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He fully disclosed.

[00:03:22] Speaker 03:
Nobody says it was his fault.

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And what I asked you for and what Judge Hughes is addressing is, you're saying the timing was circumstantial evidence.

[00:03:34] Speaker 03:
Are you saying by that that there is no other evidence of an invidious political intent?

[00:03:42] Speaker 02:
No.

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The deviation from normal practice is another indicator.

[00:03:46] Speaker 01:
What deviation from normal practice?

[00:03:49] Speaker 02:
Well, they were supposed to give him 30 days notice before they remove him, but they only gave him 14 days.

[00:03:54] Speaker 02:
They were supposed to disclose to OPM who the selecting official was, but there's no record that they did this.

[00:04:01] Speaker 01:
They are supposed to... They were supposed to comply with OPM's regulations in the first place before selecting him involving an official he knew from his work at a prior agency.

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Who had no role in the selection when she saw his name on the... But that's not actually true because she wrote

[00:04:21] Speaker 01:
the criteria for the second solicitation, did she not?

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And she's the one that wrote in the Spanish requirement.

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And she had seen his name on the prior list as well.

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Had she not?

[00:04:34] Speaker 02:
No, she had not.

[00:04:35] Speaker 02:
She recused herself as soon as she saw her name and she added in the second one.

[00:04:40] Speaker 01:
Was she not aware that he'd applied on the first one and didn't make the list?

[00:04:44] Speaker 03:
That's correct.

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And then she wrote the requirements.

[00:04:47] Speaker 03:
I'm sorry, I didn't hear you.

[00:04:48] Speaker 03:
And then she added that Spanish language requirement.

[00:04:51] Speaker 02:
The Spanish language requirement was added before the first announcement due to a- No, it was a preference.

[00:04:56] Speaker 01:
It wasn't a requirement.

[00:05:00] Speaker 01:
Isn't that the record that it wasn't a requirement?

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And the personnel office said, if you want this to be a requirement, you have to write it in the job description, not just as a preference.

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Right.

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And her testimony was she made that decision before she knew Avalos was going to be a candidate.

[00:05:18] Speaker 01:
But it wasn't a requirement for the first go round.

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My understanding was that it was a requirement for the first go round, but I'll be happy to check the record on that.

[00:05:33] Speaker 02:
The deviations from normal practice include the failure to get proper notice, failure to give the materials relied upon, failure to

[00:05:44] Speaker 02:
allow the normal time for preparation of response.

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Do those procedures apply where you have an employee who was illegally hired from the outset?

[00:05:57] Speaker 02:
Yes.

[00:05:57] Speaker 02:
Yes, they specifically do.

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And that, for example, is the holding in the Devine versus Sudemeister case of the Federal Circuit in which an arbitrator considered

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a case of an employee who had failed to disclose a prior conviction and other employment in a court martial in his SF86.

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And the case went to arbitration.

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The arbitrator said this was misconduct.

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It deserves discipline.

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But then the arbitrator mitigated the removal.

[00:06:27] Speaker 04:
Is your response the same where there is an absolute statutory bar that's been violated?

[00:06:34] Speaker 04:
Well, we have no such absolute.

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But I'm asking you whether your arguments would still apply under that situation.

[00:06:41] Speaker 02:
Well, the situation would be different if there were an absolute statutory bar.

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But the burrowing in rule is not a statute.

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Congress has not addressed this issue.

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And indeed, this court has never addressed what it means to regularize an appointment, as OPM calls it, or required in this case.

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So these absolute statutory bars, there are not many of them.

[00:07:08] Speaker 02:
In cases, for example, the Bridgman case, where there's an executive order saying we'll only hire US citizens, we have certain exceptions.

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And the fact that there are certain exceptions means it's not absolute, and MSPB retains its jurisdiction.

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And the same applies here.

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OPM said that you can get a variance.

[00:07:27] Speaker 02:
There's a regulation that says you can get a variance.

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So we're not dealing with an absolute.

[00:07:32] Speaker 04:
Let me make sure I understand your argument.

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You're not arguing that he was improperly

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hired.

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You're arguing that regardless of what happened at that first stage, in the second stage, he was denied certain employee status.

[00:07:53] Speaker 04:
Yes.

[00:07:54] Speaker 02:
Most importantly, he was removed without a finding of such cause as will promote the efficiency of the service.

[00:08:00] Speaker 01:
How is that possible?

[00:08:01] Speaker 01:
He was removed because the agency failed to comply with the Barry memorandum.

[00:08:07] Speaker 01:
And the very memorandum certainly promotes the efficiency of the service, because it promotes merits of some principles.

[00:08:14] Speaker 02:
Well, so does retaining federal employees when they perform well.

[00:08:18] Speaker 01:
But the agency gets to make the call on what it thinks is the efficiency of the service.

[00:08:23] Speaker 01:
And then the AJ reviews it, and we review that for substantial evidence.

[00:08:27] Speaker 01:
The fact that they could have asked for a variance doesn't mean they had to ask for a variance, does it?

[00:08:31] Speaker 02:
I frankly disagree with that.

[00:08:34] Speaker 02:
I don't see how they can establish that they had such causes will promote the efficiency of the service.

[00:08:40] Speaker 01:
You don't think complying with merit systems principles against partisan hiring promotes the efficiency of the service?

[00:08:50] Speaker 02:
I think if you look at the merits of this case where Mr. Avalos was the only qualified applicant on that second cert list and

[00:09:00] Speaker 02:
the agency determined that he still would have been selected even without consideration of the Spanish language requirement.

[00:09:07] Speaker 01:
But they couldn't determine that his hiring was free of political bias.

[00:09:12] Speaker 02:
Well, that was mostly because they hadn't retained and preserved their own records, and they didn't even check for their normal record of who was the selecting official.

[00:09:19] Speaker 02:
It was Ms.

[00:09:20] Speaker 02:
McBride.

[00:09:20] Speaker 01:
Can I just ask you the basic question?

[00:09:22] Speaker 01:
Do you think failure to comply with the Barry memorandum

[00:09:28] Speaker 01:
is a sufficient basis under the efficiency of the service standard?

[00:09:32] Speaker 02:
I don't think it is in this case.

[00:09:33] Speaker 01:
OK.

[00:09:34] Speaker 01:
No, no.

[00:09:35] Speaker 01:
I didn't ask you in this case.

[00:09:37] Speaker 01:
Is failure to comply with OPM's Barry memorandum a sufficient ground to remove for efficiency of the service?

[00:09:45] Speaker 02:
I think that's problematic.

[00:09:46] Speaker 02:
And I think HUD's been recognized.

[00:09:48] Speaker 01:
OK.

[00:09:48] Speaker 01:
Well, let's move on.

[00:09:49] Speaker 01:
I disagree with you on that.

[00:09:50] Speaker 01:
Let's move on to a new point.

[00:09:53] Speaker 01:
Isn't there substantial evidence to support the agency's decision that it failed to comply, which you can't dispute, and that it couldn't determine on the record that it was free of partisan bias?

[00:10:06] Speaker 01:
Why isn't based upon all the testimony and all the evidentiary record that is sufficient to support the ADA's finding?

[00:10:12] Speaker 01:
I know you disagree with it, but we're on a substantial evidence standard here.

[00:10:15] Speaker 02:
We're on substantial evidence when we're looking at a factual issue.

[00:10:20] Speaker 02:
But before that comes the legal issue of whether or not the administrative judge used the correct legal standard.

[00:10:26] Speaker 02:
And I contend that he did not, because nowhere in the initial decision do you find the judge saying, this removal promotes the efficiency of the service.

[00:10:36] Speaker 02:
This is the ancient requirement, the core of our civil service system, that once you're an employee, you get to continue an employment

[00:10:43] Speaker 02:
So unless there is such cause as will promote the efficiency of the service, which in our net, the Supreme Court said is equivalent to just cause in the private sector.

[00:10:51] Speaker 02:
And that's very hard.

[00:10:53] Speaker 01:
But it's not just misconduct.

[00:10:56] Speaker 02:
Misconduct performance.

[00:10:57] Speaker 02:
I think in page 36 of HUD's brief in the footnote, they recognize it as a difficult standard for them to meet in cases like this, where you have so much.

[00:11:07] Speaker 01:
Are you saying that efficiency of the service is equivalent and confined to misconduct?

[00:11:13] Speaker 02:
Or poor performance.

[00:11:14] Speaker 02:
But yes, you need to find some fault on the part of the employee.

[00:11:19] Speaker 02:
What's your support for that?

[00:11:21] Speaker 02:
Well, I think the DeVine v. Sudermeister case is an excellent point on this subject, where the arbitrator said that the misrepresentations on the application may make the application voidable, but not unreviewable.

[00:11:37] Speaker 02:
And the arbitrator determined that good performance after hire showed that removal was not going to promote the efficiency of the service and mitigated the termination to 30-day suspension.

[00:11:48] Speaker 01:
But the agency is not arguing that it was unreviewable.

[00:11:51] Speaker 01:
They're arguing that failure to comply with certain merit principle as espoused in the Barry memorandum is sufficient to remove the employee.

[00:12:01] Speaker 01:
Let's just, again, you're going back to a legal question that I said I disagreed with about.

[00:12:06] Speaker 01:
I mean, you can keep arguing it, but assume I disagree with that, then where is the lack of substantial evidence that the agency couldn't rely on the failure to comply with the Bury memorandum?

[00:12:17] Speaker 01:
It seems to me that there's sufficient evidence here.

[00:12:22] Speaker 01:
You mentioned some of the what you call improprieties in the removal process that they shorten the time period and the like, which they admittedly did.

[00:12:34] Speaker 01:
Where did you establish harmful error from that?

[00:12:37] Speaker 02:
Well, the denial of the 30 days is harmful first and foremost because my client lost 16 days of pay.

[00:12:43] Speaker 02:
That's material.

[00:12:44] Speaker 02:
That's dollars and cents.

[00:12:47] Speaker 02:
But more substantively,

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He lost the opportunity to search around and find a lawyer who actually had experience in federal civil service matters.

[00:12:54] Speaker 02:
He found some local lawyer who really had no familiarity in this area.

[00:12:59] Speaker 02:
And it took a while before he came to our office and retained us to handle the MSPB appeal.

[00:13:04] Speaker 02:
That really is material.

[00:13:05] Speaker 02:
It really makes a difference to have time to prepare your case.

[00:13:08] Speaker 02:
And that's part of why the 30 days is an important requirement.

[00:13:12] Speaker 02:
From HUD's point of view, they were obviously rushing to try to get him fired before.

[00:13:17] Speaker 01:
How does that?

[00:13:18] Speaker 01:
What impact, if we determine that the agency proposes removal for violation of the Barry memorandum, that the agency established that it could not regularize the appointment as OPM required, and that there's substantial evidence to support that, how does the failure to obtain what you call qualified counsel impact that?

[00:13:38] Speaker 02:
I do believe that there is inherent value in our justice system for people to find, retain, and have the opportunity.

[00:13:46] Speaker 01:
Sure, sure.

[00:13:46] Speaker 01:
Absolutely.

[00:13:47] Speaker 01:
But it's a harmful error analysis.

[00:13:49] Speaker 01:
And you have to show how that would have impacted the ultimate decision.

[00:13:55] Speaker 01:
And if we uphold the ultimate decision, how would the failure to have you or somebody you find less qualified make any difference on the actual merits of the case?

[00:14:05] Speaker 02:
Well, I do also disagree with the requirement that it be harmful error, because 7703 specifically says that- I mean, the agencies are allowed to shorten that time period anyway, aren't they?

[00:14:15] Speaker 01:
It's a procedural rule, and procedural rules are subject to harmful error analysis.

[00:14:20] Speaker 02:
I mean, there's precedent from this court on that.

[00:14:22] Speaker 02:
You know that.

[00:14:23] Speaker 02:
There is, but that's not what the text of the statute says in 7703C.

[00:14:26] Speaker 01:
Well, we're bound by the precedent of this court.

[00:14:29] Speaker 01:
And this court has definitely found that violation of procedural rules in this context are subject to harmful error analysis.

[00:14:35] Speaker 01:
It's basic APA law.

[00:14:39] Speaker 02:
Well, that's not what the Congress set out as the requirements for the procedure in this matter.

[00:14:44] Speaker 02:
And my client was caught.

[00:14:46] Speaker 01:
It did cost him dollars and cents.

[00:14:47] Speaker 01:
Congress sets out all kinds of procedures all the time.

[00:14:50] Speaker 01:
And courts routinely subject violation of procedural rules set out by Congress to a harmful error analysis.

[00:14:56] Speaker 01:
If that's your best argument, then you're going to have a health problem.

[00:14:59] Speaker 01:
No, no.

[00:14:59] Speaker 02:
You haven't let me get to my best argument.

[00:15:01] Speaker 02:
My best argument.

[00:15:02] Speaker 01:
Why are you arguing all this subsidiary stuff, then?

[00:15:05] Speaker 02:
Because you're asking me questions.

[00:15:06] Speaker 01:
Well, you didn't start off with your.

[00:15:08] Speaker 01:
But what is your best argument?

[00:15:09] Speaker 02:
My best argument is that under 7513A,

[00:15:13] Speaker 02:
Congress requires that there be a finding of such cause as will promote the efficiency of the service and that is absolutely missing.

[00:15:20] Speaker 01:
I thought we'd already talked about that and that the cause that the agency provided was it was an illegal appointment and therefore he had to be removed to promote the efficiency of the service to comply with merit systems principles.

[00:15:34] Speaker 02:
Well there is no statute that says you cannot hire someone who used to be a political appointee.

[00:15:41] Speaker 01:
It doesn't have to be a statute.

[00:15:42] Speaker 01:
OPM has broad authority to promulgate guidelines.

[00:15:46] Speaker 01:
And in fact, even though there's not a statute on the Barry memorandum, don't

[00:15:52] Speaker 01:
Isn't there a statute requiring them to report to Congress on the instances of this burrowing in?

[00:16:02] Speaker 01:
Doesn't that indicate that Congress is concerned about this whole process?

[00:16:05] Speaker 02:
Well, no doubt Congress should be concerned.

[00:16:08] Speaker 02:
But Congress has not said that agencies cannot hire someone without OPM approval.

[00:16:13] Speaker 02:
Congress has not said that you have to notify OPM.

[00:16:17] Speaker 02:
These are OPM policies incorporated through the Barry memo.

[00:16:21] Speaker 02:
They are not absolute statutory bars, and there's an exception in the variance process.

[00:16:25] Speaker 01:
OPM has the authority to make these hiring policies, does it not?

[00:16:30] Speaker 02:
But that doesn't make them unreviewable.

[00:16:31] Speaker 02:
That's what the Vine versus Pseudometer case.

[00:16:34] Speaker 01:
Nobody's saying they're unreviewable.

[00:16:35] Speaker 02:
The administrative judge did say it was unreviewable.

[00:16:37] Speaker 01:
Well, the administrative judge also said that the hiring was not appropriate under the bearing memorandum.

[00:16:45] Speaker 01:
He said he couldn't review OPM's determination.

[00:16:49] Speaker 01:
Even if we review our PM's determination, it's undisputed that they didn't comply with the very memorandum.

[00:16:55] Speaker 02:
Yes, but an impropriety in hiring doesn't change the fact that Avalos became an employee and he was entitled to continue an employment, except upon such causes will promote the efficiency of the service.

[00:17:07] Speaker 04:
Let's stop on that point.

[00:17:07] Speaker 04:
I think Judge, I want to catch the question.

[00:17:11] Speaker 03:
This is brief.

[00:17:15] Speaker 03:
Will you make a point in both the opening and in the reply

[00:17:19] Speaker 03:
Mr. Avalos, you say, served for almost seven years at USDA.

[00:17:25] Speaker 03:
And because his service at USDA ended and so on, it was continuous at HUD.

[00:17:33] Speaker 03:
But that's not civil service, is it?

[00:17:37] Speaker 02:
Yes, it is.

[00:17:37] Speaker 02:
But this is the definition of an employee at 7511, where- A political is a civil servant?

[00:17:45] Speaker 02:
Well, they're not an employee with civil service protections while they are serving in a political appointment.

[00:17:54] Speaker 02:
But once they become employed in the competitive service, the time they served as a political appointee contributes to their continuous current service.

[00:18:03] Speaker 03:
Are you saying that at that point, there's no probationary period?

[00:18:07] Speaker 03:
That's correct.

[00:18:09] Speaker 01:
That's a result of our McCormick decision, right?

[00:18:12] Speaker 02:
Exactly.

[00:18:12] Speaker 02:
It's in the disjunctive.

[00:18:13] Speaker 02:
And you could be both a probationary employee at HUD and still be an employee under 7511 entitled to MSPB review and continuation of your employment except upon such causes will promote the efficiency of the service.

[00:18:27] Speaker 02:
This is an ancient Lloyd LaFollette standard that protects our federal civil service.

[00:18:32] Speaker 04:
Okay, let's hear it from the other side now.

[00:18:35] Speaker 04:
Will we restore your rebuttal time?

[00:18:40] Speaker 04:
Councillor Speck, correct?

[00:19:00] Speaker 00:
Good morning, Your Honors.

[00:19:01] Speaker 00:
Elizabeth Speck for the United States.

[00:19:03] Speaker 00:
May it please the Court, we respectfully request that the Court either vacate the decision of the MSPB for lack of jurisdiction or sustain the decision of the administrative judge.

[00:19:14] Speaker 03:
Would action against someone because of the political status of the administration that appointed him previously constitute partisan political discrimination?

[00:19:27] Speaker 00:
No, Your Honor, and that's because, as we've explained in our brief, this is a procedure that has been consistently applied.

[00:19:33] Speaker 00:
At least we have dating as far back to the Carter administration that every former political appointee who wants to become a competitive service appointee has to go through this review process.

[00:19:44] Speaker 00:
For example, it's not- That wasn't my question.

[00:19:47] Speaker 00:
Oh, I'm sorry, Your Honor.

[00:19:48] Speaker 03:
My question was, would action against someone because of the political status

[00:19:55] Speaker 03:
of the administration which previously appointed him constitute partisan political discrimination?

[00:20:01] Speaker 00:
Yes, sir.

[00:20:01] Speaker 00:
I mean, the definition under Mastroianno is partisan because of partisan political activity.

[00:20:06] Speaker 00:
But we simply don't have that in the record.

[00:20:08] Speaker 00:
We have evidence of OPM conducting its typical review process, which it does for any political appointee who has been an appointee in the past five years who wants to become

[00:20:20] Speaker 00:
a member who wants to work in the competitive service, for example.

[00:20:23] Speaker 04:
When OPM does this review process, is it doing that pursuant to its internal regulations?

[00:20:31] Speaker 00:
Your Honor, it stems from a variety of statutory authority.

[00:20:34] Speaker 00:
As we've gone through in our brief, there is 5 U.S.C.

[00:20:38] Speaker 00:
1103, which authorizes OPM to enforce the civil service rules.

[00:20:42] Speaker 00:
5 U.S.C.

[00:20:44] Speaker 00:
1104 B, II, and C, authorize

[00:20:47] Speaker 00:
OPM to oversee hiring and to order corrective action.

[00:20:52] Speaker 00:
And it also under 1303 possesses the, 5 USC 1303 possesses the authority to investigate the administration of competitive examinations.

[00:21:02] Speaker 00:
The civil service rules which are under, which are in parts 1 through 10 of the regulations, 1 through 10 are in part from the presidential delegation at 5 USC 3301 through 3302.

[00:21:16] Speaker 00:
which authorized OPM to implement procedures.

[00:21:20] Speaker 04:
I would imagine that this isn't the first time this situation has happened, where you have OPM, for some reason, does not conduct this review that you're referring to.

[00:21:31] Speaker 04:
And if that's the case, is it always the situation where the hire is an illegal hire?

[00:21:37] Speaker 00:
Your Honor, surprisingly, we didn't encounter very many cases about this, as you can see in our brief.

[00:21:41] Speaker 00:
But yet the position is that,

[00:21:43] Speaker 00:
OPM here requests the agencies to complete the checklist that's at 176 through 178 of the appendix beforehand so that it can conduct this review.

[00:21:56] Speaker 00:
OPM also doesn't just leave it to the agencies.

[00:21:59] Speaker 00:
It conducts oversight and looks at a variety of information to determine if there have been hiring of former political appointees without going to OPM.

[00:22:10] Speaker 00:
If that's the case, then OPM investigates the appointment.

[00:22:14] Speaker 00:
And there are options.

[00:22:15] Speaker 00:
There is the possibility that they could, if OPM

[00:22:19] Speaker 00:
Finds issues with the appointment.

[00:22:21] Speaker 00:
It could tell the agency to here, regularize the appointment, which means to make it legal.

[00:22:28] Speaker 00:
Regularize the appointment means to make it legal.

[00:22:31] Speaker 00:
They can either find another hiring authority.

[00:22:35] Speaker 00:
For example, if there's there's a way to appoint the person, the individual non competitively.

[00:22:40] Speaker 00:
Also, there is the ability to ask for retroactive approval.

[00:22:45] Speaker 04:
In this situation, HUD regularizes it by saying this was an illegal hire and therefore we're terminating his employment.

[00:22:53] Speaker 00:
Well, Your Honor, yes, they determined there was not another avenue to make it legal.

[00:22:59] Speaker 00:
They looked to see if there was another

[00:23:02] Speaker 04:
Appointing authority this question is important to me for several reasons, but does that mean once hadn't made that decision when OPM went back to HUD and said We want you to regularize this this appointment, and they said okay.

[00:23:17] Speaker 04:
We are we've looked at everything anew and This appointment was illegal does that mean that that?

[00:23:24] Speaker 04:
illegality stretches back to the date of the that the appointment was made and

[00:23:30] Speaker 00:
Yes, Your Honor, there's no dispute that the agency did not follow the procedures that here HUD, working through its shared service provider, did not follow the procedures for hiring a former political appointee.

[00:23:41] Speaker 00:
The appointment was essentially made ultra veris because there was not that here OPM, through its wide and broad authority to implement the civil service principles.

[00:23:53] Speaker 04:
If that's the case in this situation, then that really impacts whether Mr. Alvarez has had civil service protections, right?

[00:24:00] Speaker 00:
Your honor, we would submit that it's not really a question of Mr. Avalos.

[00:24:05] Speaker 00:
The issue here is the problem with the appointment.

[00:24:07] Speaker 00:
So it's, of course, easy to look at the individual who has brought this case.

[00:24:12] Speaker 00:
But the fact is, this concerns OPM's authority to correct an illegal appointment.

[00:24:17] Speaker 00:
The fact is, again, there was no authority to make the appointment.

[00:24:22] Speaker 04:
I'm asking you this because you're

[00:24:24] Speaker 04:
Your colleague on the other side is arguing what seems to me to be the cart before the horse.

[00:24:30] Speaker 04:
He wants us to look at the effect that the denial of civil service protections had on the decision.

[00:24:39] Speaker 04:
And it seems to me that the first question is whether the hire was legal or not.

[00:24:45] Speaker 04:
And if it was not legal, was he ever entitled to civil service protections?

[00:24:50] Speaker 00:
Your Honor, it's our position that the hiring was not legal because the OPM is indicted.

[00:24:56] Speaker 01:
Yeah, sure.

[00:24:57] Speaker 01:
Let's take that it wasn't legal, but then answer the follow-up question.

[00:25:00] Speaker 01:
Was he ever entitled to civil service protections?

[00:25:03] Speaker 00:
No, Your Honor.

[00:25:04] Speaker 01:
What's your basis for that?

[00:25:06] Speaker 00:
Our position is because there was, again, the best statutory authority we have, aside from the authorities that I've gone through about OPM's broad authority, is that

[00:25:16] Speaker 00:
The very definition of an employee at 5 USC 2105 is an individual appointed to the civil service by an official acting in an official capacity.

[00:25:25] Speaker 00:
And here, there is no authority to hire someone where they have not followed the procedures from OPM.

[00:25:31] Speaker 00:
It is, in fact, correcting the illegal appointment.

[00:25:34] Speaker 01:
And the cases that- Are you arguing that he's not an employee under 75 whatever?

[00:25:40] Speaker 00:
Yes, Your Honor.

[00:25:41] Speaker 01:
I mean, there's some facial appeal to that, but isn't the problem, isn't that foreclosed by our decision in McCormick?

[00:25:51] Speaker 00:
Well, setting aside, our first argument is that there's no employment status because there was no official with authority in terms of whether he was... That, yeah, set that aside.

[00:26:02] Speaker 01:
I have some questions about that because I'm not aware of any kind of case law argument on that point that we've heard before.

[00:26:08] Speaker 01:
But under the definition of employee as interpreted by McCormick, he falls within the competitive service employee standards, doesn't he?

[00:26:19] Speaker 00:
Your Honor, no, that under 7511, the focus under subpart A, we're looking at an individual in the competitive service.

[00:26:28] Speaker 00:
And the provision here that he is relying on to say that he is more than an employee under its initial appointment is who has completed one year of continuous service under other than a temporary appointment.

[00:26:39] Speaker 00:
We would submit that the focus of this subchapter is an individual in the competitive service.

[00:26:45] Speaker 01:
But he was in the competitive service at the time he was serving.

[00:26:48] Speaker 01:
It doesn't say that all of his service has to be in the competitive service, does it?

[00:26:53] Speaker 01:
And isn't there case law to the contrary on that?

[00:26:55] Speaker 00:
We would submit, Your Honor, that the prior case law, the McCormick case, dealt with two initial probationary periods in the competitive service.

[00:27:04] Speaker 00:
And none of the cases that have been cited deal with a specific service, which is political appointee service, which

[00:27:11] Speaker 00:
has a specific exclusion.

[00:27:13] Speaker 01:
Again, I think there's some facial appeal to that argument.

[00:27:16] Speaker 01:
But Cormac does a very plain language look at 7511 and says it has two requirements that are in the subjunctive.

[00:27:24] Speaker 01:
And if he meets one of them, which is he's an employee in the competitive service who served continuously for more than one year, I'm paraphrasing, then he falls within that definition.

[00:27:35] Speaker 01:
And doesn't he meet all three of these?

[00:27:37] Speaker 01:
He was an employee.

[00:27:38] Speaker 01:
in the competitive service who had served continuously for more than a year, counting his prior service.

[00:27:44] Speaker 01:
Is there any case law or statute that says political service as a schedule, whatever he was, doesn't count?

[00:27:51] Speaker 03:
And let me interject an additional question on that.

[00:27:55] Speaker 03:
You used the phrase ultra-virus in an infection.

[00:27:59] Speaker 03:
What you're saying is that employment is a nullity.

[00:28:02] Speaker 03:
And so I think the same question is, what's your legal authority for that?

[00:28:08] Speaker 00:
May my Latin may not may not have been perfect your honor but our legal authority is that the court should not read again that the focus of in terms of the 70 75 11 a 1 a 2 is that the Again, the focus is on the competitive service and that the long-standing statutory authority that the court is not to interpret the statute so as to

[00:28:30] Speaker 00:
give no effect to a certain section.

[00:28:32] Speaker 00:
And this basically puts it.

[00:28:34] Speaker 01:
But let me ask you hypothetically.

[00:28:35] Speaker 01:
If instead of former political service, which doesn't entitle him to employee status under 7511 at all, he had served in the accepted service, which is covered by, I think, subpart C, right?

[00:28:46] Speaker 01:
And he served in that for over a year and then transferred to the competitive service.

[00:28:52] Speaker 01:
Would he qualify as an employee under A then?

[00:28:56] Speaker 00:
I believe the individual, if you're referring to... I mean, don't we have cases like that?

[00:29:00] Speaker 00:
A1C, but that also has a different regulation who has completed two years of continuous service.

[00:29:04] Speaker 01:
No, but that's not what... Listen to the hypothetical.

[00:29:07] Speaker 01:
He was appointed initially into the accepted service.

[00:29:11] Speaker 01:
He served for over a year in the accepted service, applied for and got a competitive service job, and served for less than a year, but cumulatively,

[00:29:22] Speaker 01:
It served over a year.

[00:29:23] Speaker 01:
Wouldn't he be, under our McCormick decision, an employee in the competitive service with current continuous service of over one year?

[00:29:32] Speaker 01:
Is there anything that requires that?

[00:29:34] Speaker 01:
You're saying that current continuous service language in all these parts has to be in the specific category, but the statute doesn't seem to say that.

[00:29:44] Speaker 00:
Well, the statute certainly has in subsection C specific requirements for what constitutes continuous service

[00:29:50] Speaker 00:
that it be in the same or similar position.

[00:29:53] Speaker 00:
And here, the administrative service.

[00:29:54] Speaker 01:
But that's for the accepted service, right?

[00:29:55] Speaker 01:
Not for the competitive service.

[00:29:57] Speaker 00:
Oh, yes, Your Honor.

[00:29:58] Speaker 00:
And here, the administrative judge determined that that would not apply because he hadn't served in the same agency and it hadn't been the same type of service.

[00:30:06] Speaker 00:
Again, the court's interpretation gives essentially every political employee.

[00:30:11] Speaker 00:
It eliminates the probationary period requirement.

[00:30:13] Speaker 00:
It gives them an advantage.

[00:30:14] Speaker 01:
But that's the whole point of McCormick, right?

[00:30:15] Speaker 01:
I mean, McCormick, I think, as it acknowledged,

[00:30:19] Speaker 01:
There's some strong legislative history to suggest that the outcome there wasn't Congress didn't intend the outcome there, but it did a plain language approach.

[00:30:27] Speaker 01:
And it said, look, it uses or, not and.

[00:30:30] Speaker 01:
And so even if they haven't completed their probationary period at the agency, if they qualified under the second part, current continuous service, then they're employed.

[00:30:40] Speaker 01:
Isn't that what McCormick says?

[00:30:42] Speaker 00:
Again, Your Honor, that didn't.

[00:30:43] Speaker 01:
Look, I know the government disagreed with McCormick at the time.

[00:30:46] Speaker 01:
and probably sought rehearing.

[00:30:49] Speaker 01:
And it was denied.

[00:30:49] Speaker 01:
And we're stuck with it, aren't we?

[00:30:52] Speaker 00:
Yes, Your Honor.

[00:30:52] Speaker 00:
Again, just to distinguish McCormick, it was two probationary periods in the competitive service.

[00:30:57] Speaker 00:
It didn't deal with a specific.

[00:30:59] Speaker 00:
Again, allow me to say it.

[00:31:00] Speaker 01:
I understand, but you can't confine it to its facts.

[00:31:02] Speaker 01:
You have to follow its reasoning.

[00:31:05] Speaker 01:
And its reasoning is pretty broad, that if you qualify.

[00:31:08] Speaker 01:
Can you just move on to the merits and not talk about this jurisdiction anymore?

[00:31:14] Speaker 01:
Because you're running out of time.

[00:31:15] Speaker 01:
Your friend on the other side wants to argue that a removal for violation of the Barry memorandum is not an efficiency of the service removal, and it's not permissible.

[00:31:26] Speaker 01:
That it has to be based upon the employee's conduct or performance.

[00:31:30] Speaker 01:
What's your response to that?

[00:31:32] Speaker 00:
As we argue in our brief, no, the efficiency of the service, we didn't find a specific case that held this, but it's our position that the efficiency of the service is upheld when the merit system's principles are upheld.

[00:31:44] Speaker 00:
And here, clearly,

[00:31:46] Speaker 00:
under the statutes, the merit systems principles require that appointments be free from political influence, that they be consistent with merit systems principles and free from political influence.

[00:31:58] Speaker 03:
Well, there's a reason, isn't there, for the presumption that an agency follows the law.

[00:32:05] Speaker 03:
That is to say, when an agency doesn't follow the law, there's a reason, there's a distinction there.

[00:32:13] Speaker 00:
Yes, Your Honor, and I think the MSPB has made this point in several decisions.

[00:32:18] Speaker 00:
The point is to encourage agencies to comply with the civil service rules.

[00:32:23] Speaker 00:
Here, OPM only has the authority, it has authority to promulgate procedures and to conduct investigations, but this ensures that the civil service rules are followed in the employees and have confidence in that.

[00:32:39] Speaker 00:
In terms of the court, I believe there's been some question about the Spanish requirement.

[00:32:46] Speaker 00:
We would submit that there is substantial evidence in the record that supports HUD's conclusion that it could not do anything other than separate Mr. Abalos

[00:32:58] Speaker 00:
We would point to the court to Appendix 153 through 155 that OPM would have not approved Mr. Avalos' competitive service appointment had HUD sought our prior approval prior to selection as it should have, and therefore HUD must regularize the appointment.

[00:33:15] Speaker 00:
In terms of the Spanish requirement, which the court had asked about, and this is discussed more at Appendix 441, it talks about the fact that the first posting

[00:33:24] Speaker 00:
listed Spanish as a selective placement factor, but did not amend the position description to add duties in support of the selective placement factor.

[00:33:32] Speaker 00:
We would emphasize to the court that there was a qualified veteran.

[00:33:36] Speaker 00:
The selective placement factor was never properly vetted, therefore there was a qualified veteran.

[00:33:41] Speaker 00:
that Mrs. Trevino did not follow the appropriate procedures to pass through, to pass over a veteran.

[00:33:48] Speaker 00:
Finally, Mr. Avalos has claimed that another issue that has come up is the fact that, is whether there were, is information about the fact that Mrs. Trevino had not excluded herself from, was still listed on the certificate.

[00:34:01] Speaker 00:
And we just point the court to appendix page 599, which outlines those procedures.

[00:34:05] Speaker 04:
Thank you.

[00:34:19] Speaker 02:
Restored your tongue for minutes.

[00:34:22] Speaker 02:
Thank you.

[00:34:22] Speaker 02:
Let me start at appendix 5 the initial decision Three lines up from the bottom is the word non-reviewable where the administrative judge Found that OPM's directive to regularize was non-reviewable You know and still disturbs me that we have no definition of what that doesn't go to the question whether the agency's decision is

[00:34:42] Speaker 01:
to remove him for failure to comply support is justified by the efficiency of the service center.

[00:34:50] Speaker 01:
Even if we can't review OPM's determination that you need to regularize this, what we're looking at is the agency's ultimate removal decision.

[00:35:00] Speaker 01:
And although the government makes jurisdictional arguments, assume we agree with you that we can review that ultimate removal decision, which is,

[00:35:08] Speaker 01:
whether a removal for failure to comply with the Barry memorandum promotes the efficiency of the service.

[00:35:14] Speaker 01:
Those are two different questions, right?

[00:35:16] Speaker 02:
Agreed.

[00:35:17] Speaker 01:
So the AJ went ahead and reviewed that second question, did he not?

[00:35:22] Speaker 02:
Correct.

[00:35:23] Speaker 02:
but did so basically accepting the testimony of HUD officials that the only way to regularize was to remove and ignoring the opportunity to seek a variance, just saying that, well, it's not required by law that you apply for the variance.

[00:35:38] Speaker 02:
But also, it's not required by law that you remove Avalos once he becomes an employee

[00:35:44] Speaker 02:
because of an agency error in the selection process.

[00:35:47] Speaker 01:
Does it have to be required by law?

[00:35:49] Speaker 01:
Isn't it just that the removal is justified by the efficiency of the service?

[00:35:55] Speaker 02:
Well, it does need to meet that standard.

[00:35:57] Speaker 02:
The administrative judge never addressed that standard, and that's my legal argument that the wrong legal standard was used below.

[00:36:02] Speaker 01:
What standard do you think he used?

[00:36:05] Speaker 02:
I think he kicked the

[00:36:07] Speaker 02:
can over to OPM saying, well, this is OPM's decision.

[00:36:10] Speaker 02:
We have to do what they say.

[00:36:11] Speaker 01:
But he reviewed the agency's evidence of why they couldn't regularize and credited it, right?

[00:36:17] Speaker 01:
I mean, what other evidence would he have been reviewing if he had reviewed the removal action for the efficiency of the service but for the agency's decision that it could not regularize and the testimony and the documents he relied on?

[00:36:31] Speaker 02:
He needed to consider Avalos' service and whether or not continuing Avalos' service would have promoted the efficiency of the service.

[00:36:39] Speaker 02:
and the undisputed evidence that he was a good performer, performed very well, pleased to supplement.

[00:36:45] Speaker 01:
This wasn't a performance removal, and it wasn't a misconduct removal.

[00:36:48] Speaker 01:
It was a removal based upon the agency's failure to comply with merit system principles.

[00:36:54] Speaker 01:
I know you want to argue that that's not permissible, but I'm not interested in hearing that.

[00:36:59] Speaker 01:
I'm interested in hearing whether that decision is supported by substantial evidence.

[00:37:04] Speaker 01:
Well, I mean, we've got your argument that that's not a legally permissible basis for efficiency of the service.

[00:37:11] Speaker 02:
And we can go into detail about the Keystone Cop's nature of how HUD handled the OPM review.

[00:37:16] Speaker 02:
They simply did not provide OPM with the correct information that we discovered in the hearing.

[00:37:21] Speaker 01:
I mean, that's the AJ's job.

[00:37:22] Speaker 01:
It's not our job on review to do a de novo look at the agency's evidence and the like.

[00:37:30] Speaker 01:
It's whether there's substantial evidence supporting the agency's decision.

[00:37:33] Speaker 02:
and also whether it's in accordance with the law.

[00:37:36] Speaker 02:
And this removal is not.

[00:37:37] Speaker 02:
The administrative judge used the wrong standard.

[00:37:40] Speaker 02:
And when you apply the correct standard, the efficiency of the service, you have to look at his performance, whether or not he committed misconduct.

[00:37:47] Speaker 02:
And without such causes, without the efficiency of the service, the removal is not in accordance with law.

[00:37:55] Speaker 02:
Thank you very much.

[00:37:59] Speaker 04:
Our next case is smart meter technologies