[00:00:00] Speaker 02: 1221 Beverly vs. Air Force. [00:00:52] Speaker 02: Okay, Mr. Patard. [00:01:14] Speaker 04: May it please the court? [00:01:16] Speaker 04: I'm here representing Mr. Luther Beveley III, the appellant in this case, [00:01:22] Speaker 04: And the main issue before the court is whether Mr. Bebley's due process rights were violated by the agency and did that violation constitute harmful error. [00:01:36] Speaker 04: As a secondary issue is whether the administrative judge erred in not reconvening the hearing in order to give Mr. Bebley an opportunity to question the deciding official about his use of [00:01:52] Speaker 04: what we call exhibit 21, which was Mr. Bebley's criminal history. [00:01:57] Speaker 02: You had that earlier in the proceeding, right? [00:02:00] Speaker 04: Say again? [00:02:01] Speaker 02: You had, you were aware of the criminal history. [00:02:05] Speaker 04: We were aware that the criminal history was an exhibit to the base document, which was the report of investigation by the security forces. [00:02:16] Speaker 04: But that [00:02:17] Speaker 04: I saw that a few weeks before the hearing, and at the pre-conference or pre-hearing conference I raised the issue about why it had been omitted from the agency's responses, both initially during the removal process [00:02:33] Speaker 04: as well as during the appeal process. [00:02:36] Speaker 04: They had never produced that, although in the statement they said that they produced it during discovery. [00:02:40] Speaker 04: And looking back at it, their discovery responses were merely, it has been included as a part of the agency responses. [00:02:45] Speaker 04: They never responded with that particular document as a part of the report of investigation. [00:02:51] Speaker 02: But you knew it had been before the agency. [00:02:57] Speaker 02: It was part of the agency file. [00:02:59] Speaker 02: And you could have asked about it, right? [00:03:01] Speaker 02: You could have asked whether, [00:03:02] Speaker 02: deciding official relied on it or saw it, right? [00:03:06] Speaker 04: During the hearing, because we were aware of it, we could have asked about it, but that's like asking about the mother report, what was in it without knowing what was in it, questioning somebody about it without knowing what was in it. [00:03:23] Speaker 04: We did not know what his criminal history was. [00:03:25] Speaker 04: He did not know what it was. [00:03:27] Speaker 02: It could have been anything. [00:03:29] Speaker 04: You didn't have a copy of this? [00:03:30] Speaker 04: Excuse me? [00:03:30] Speaker 02: I thought that we had a copy of this at the time of the hearing. [00:03:34] Speaker 04: No, we did not. [00:03:35] Speaker 04: That's the problem. [00:03:36] Speaker 04: We did not have a copy, but we asked about it before the hearing. [00:03:40] Speaker 04: The agency was supposed to bring it to the hearing, produce it. [00:03:43] Speaker 04: They did not. [00:03:44] Speaker 04: During the hearing, the administrative judge ordered the agency to produce it, and it was not produced until post-hearing. [00:03:49] Speaker 04: That's the first time we saw it. [00:03:50] Speaker 02: No, it's not introduced into the record. [00:03:53] Speaker 02: The government has said before [00:03:57] Speaker 02: the board here that you were given a copy of it in discovery? [00:04:03] Speaker 04: The government is not correct. [00:04:08] Speaker 04: Mr. Bebley provided me all the discovery he received through previous counsel and it was not in there. [00:04:18] Speaker 04: If we look at the agency's post-hearing submission, which can be found in appendix 36 through 37, they state that [00:04:31] Speaker 04: Exhibit 21, including the previously redacted Privacy Act material, but again, omitted Exhibit 21, the appellant's criminal history, when it filed its submissions January 12, 2018. [00:04:43] Speaker 04: It said, again, omitted. [00:04:45] Speaker 04: It omitted it during the removal process. [00:04:48] Speaker 04: It did not provide it, although it says it provided it during the discovery process, it did not. [00:04:53] Speaker 04: The agency did not provide that to the appellant. [00:04:57] Speaker 04: The first time he saw it, and that's in his declaration, which can be found in Appendix 45 through 46, he says the first time he saw it was in the post-hearing submissions. [00:05:08] Speaker 03: The agency was supposed to... Counselor, can you point us to whether or not that criminal history that you're referring to, whether it was material to the decision to remove Mr. Beverly? [00:05:25] Speaker 04: Charge against Mr. Bebley was based on a May 11, 2016 incident. [00:05:32] Speaker 04: And the charge was conduct unbecoming a federal employee. [00:05:37] Speaker 04: And the specification had to do with alleged threats that he made toward his supervisor, although the word threat is never used within the charge or the specifications, which lowered the burden of proof for the agency. [00:05:52] Speaker 04: But during the hearing, it became very apparent [00:05:54] Speaker 04: persons who were there, the supervisor, they felt threatened. [00:05:58] Speaker 04: They perceived Mr. Bebley as a threat. [00:06:02] Speaker 04: Now, the reason that this exhibit, this criminal history exhibit, is material is because it shows a different light of Mr. Bebley. [00:06:13] Speaker 04: It shows that he had one count of assault, [00:06:20] Speaker 04: with the intent to cause bodily injury, it shows that he has a conviction in his record for burglary. [00:06:32] Speaker 04: If a deciding official is looking at a criminal history of an employee who has been alleged to have done certain things, such as threatening others and threatening them with bodily harm, and if he has a criminal history of [00:06:48] Speaker 04: assault to cause bodily injury. [00:06:51] Speaker 03: So I would agree that the criminal history is prejudicial to your client. [00:06:59] Speaker 03: But the question is whether it was actually relied on or not by the deciding official. [00:07:06] Speaker 04: In the notice of proposed removal, and that starts at page 29, the proposing official [00:07:17] Speaker 04: 29 of the appendix, 29 of the appellants brief. [00:07:27] Speaker 00: The appendix, right? [00:07:28] Speaker 00: The appendix attached to the blueprint. [00:07:30] Speaker 04: Right, yes. [00:07:31] Speaker 04: Okay. [00:07:35] Speaker 00: There's no reference there to any criminal history, is there? [00:07:38] Speaker 04: No, there's no, there's no reference to that specific criminal history or that specific exhibit. [00:07:43] Speaker 04: The references to the report of investigation, the report of investigation was the basis of the removal action because it provided all the witness statements. [00:07:54] Speaker 04: It provided all the information that the management officials primarily relied upon in order to make their decision. [00:08:04] Speaker 04: Unlike Ward and Young, where the deciding official received ex parte communications after the employee had responded to the notice of proposed removal, in this situation, [00:08:20] Speaker 04: The document that we're complaining of was taken out of the base document that was used for the removal process and another document submitted into its place when it was given to Mr. Bedley to respond to. [00:08:34] Speaker 02: We don't know. [00:08:37] Speaker 02: And before the agency, did you say, we didn't get a copy of this criminal history document during the hearing, and therefore we couldn't ask about it, and please reopen the hearing? [00:08:50] Speaker 02: Where do you say that? [00:08:53] Speaker 04: In the pre-hearing conference is when we asked about that document. [00:08:58] Speaker 02: No, no, I understand. [00:08:58] Speaker 02: But I'm asking you, after the hearing was over with, [00:09:02] Speaker 02: you say that they finally submitted Exhibit 21 or whatever it's called. [00:09:08] Speaker 02: Where did you say, okay, now that we've seen this document, we were prejudiced, we want to reopen the hearing so that we can ask about it? [00:09:21] Speaker 04: We asked that of the judge following our first review of that document. [00:09:43] Speaker 04: And on page two, the judge says that... What page of the appendix? [00:09:47] Speaker 04: I'm sorry, appendix two. [00:09:49] Speaker 04: Appendix two. [00:09:50] Speaker 04: Page two of the appendix. [00:10:03] Speaker 04: It states, this is one, two, three, four, five, five lines down. [00:10:08] Speaker 04: At the hearing, the appellant's representative requested that the agency submit a copy of the criminal history document for the record, and the agency did so. [00:10:17] Speaker 04: And that was afterwards, though. [00:10:20] Speaker 02: Yeah, but where did you complain about that? [00:10:22] Speaker 04: The appellant subsequently submitted a declaration responding to the document, arguing that if the deciding official considered it, it would have been prejudicial and violated his due process rights. [00:10:32] Speaker 02: But that's not my question. [00:10:34] Speaker 02: My question is, where did you say we didn't have this document during the hearing? [00:10:39] Speaker 02: We would like to have the hearing reopened so we can question about it. [00:10:50] Speaker 04: I believe that that was a verbal request of the administrative judge. [00:10:53] Speaker 04: It was not a motion for reopening. [00:10:56] Speaker 02: Where do we find a reference to that? [00:10:58] Speaker 02: Where do we find a description that you did that? [00:11:04] Speaker 04: I don't believe it's part of this record. [00:11:17] Speaker 04: In the cases that have been before the court before, they have not contemplated the issue that's here before us today, that a document has actually been removed from [00:11:28] Speaker 04: the base document used for removal. [00:11:31] Speaker 04: I see I'm into my rebuttal time, so I'd like to reserve that for after the Agents or the Respondents presentation. [00:11:39] Speaker 02: Okay, thank you, Mr. Patard. [00:11:42] Speaker 02: Mr. Kerr? [00:11:55] Speaker 01: The Air Force did not, as petitioner alleges, try to hide Exhibit 21 to the report of investigation, the ROI, from the petitioner. [00:12:06] Speaker 01: The government did not submit Exhibit 21 to the board, recognizing that neither the proposing official nor the deciding official relied upon it. [00:12:14] Speaker 02: But the record doesn't show that you gave him a copy of this in discovery the way your post-hering brief states. [00:12:23] Speaker 02: I mean, there's nothing in the record that shows that that happened, right? [00:12:29] Speaker 01: Well, there are statements by the agency attorney that it was provided in discovery. [00:12:36] Speaker 01: Because this issue, it's incumbent on the petitioner to raise a due process issue in a timely fashion, because this issue came up after the hearing. [00:12:46] Speaker 02: Yeah, apparently there's no statement contradicting that by the petitioner in this record, right? [00:12:53] Speaker 01: Well, right. [00:12:54] Speaker 01: There's no evidence that the Air Force kept this from petitioner during the appeal process, or nor kept it from petitioner during the removal process. [00:13:06] Speaker 01: The notice of proposed removal informed Mr. Bailey that he was entitled to the government's evidence, and it told him who to contact to do so. [00:13:16] Speaker 01: He did that, and in the rebuttal response, Mr. Bailey refers to the report. [00:13:22] Speaker 01: There's no evidence that Mr. Bailey did not have access to the full report when he responded to the notice of proposed removal. [00:13:30] Speaker 01: There's also no evidence that the Air Force kept the exhibit from Petitioner during his appeal. [00:13:35] Speaker 01: As we've just discussed, the agency counsel has in the record his statement that a complete unredacted copy of the report of investigation, including Exhibit 21, was provided to petitioner. [00:13:51] Speaker 01: And this would have been petitioner's counsel at the time, John Mahaney and Sterling DeRamos. [00:13:58] Speaker 01: And that was provided in August of 2017, well before the pre-hearing submission. [00:14:03] Speaker 01: which was in January 2017. [00:14:06] Speaker 01: The petitioner did not raise a due process claim in his pre-tearing submission. [00:14:11] Speaker 01: However, five days later, at the pre-hearing conference, he asked about the missing exhibit. [00:14:16] Speaker 01: So he had that information. [00:14:18] Speaker 01: He could have raised this issue in his pre-hearing submission, and then the government would have had a chance to put on evidence to refute it. [00:14:24] Speaker 01: He raised it at the pre-hearing conference. [00:14:28] Speaker 01: It was explained to him that because it was not material to his appeal, it was not relied upon for the proposal of removal or for the decision to remove. [00:14:37] Speaker 01: And it was considered it could be prejudicial. [00:14:39] Speaker 01: that it was not included with the government's filings to the board. [00:14:44] Speaker 00: In the pre-hearing conference, when you said Mr. Bebley's counsel said, we haven't seen this document. [00:14:55] Speaker 00: We need it, right? [00:14:58] Speaker 00: Did the government say, what do you mean we haven't? [00:15:00] Speaker 00: You haven't seen the document. [00:15:01] Speaker 00: In August of 2017, we provided it to you. [00:15:04] Speaker 01: It's my understanding that Mr. Bailey's counsel asked why it was missing, why it wasn't included in the... It was the government's response. [00:15:15] Speaker 00: The government's response was... It isn't missing. [00:15:17] Speaker 00: It may be missing from the official board file, but you have it. [00:15:21] Speaker 01: That was the government's response. [00:15:22] Speaker 01: The government provided it in discovery. [00:15:25] Speaker 00: I'm sorry, do we have the record of the colloquy on the pre-hearing conference or not? [00:15:31] Speaker 01: Uh, no, we have the, um, the pre-hearing conference, uh, summary, um, in the record. [00:15:38] Speaker 01: Um, and that's at, um, it's tab 28 of the certified list, but it's also supplemental appendix 26. [00:15:45] Speaker 01: So in the supplemental appendix for the red brief on 26, it starts on page 23, I'm sorry, but the, um, the, um, [00:16:00] Speaker 01: portion on Exhibit 21 is on page 26. [00:16:04] Speaker 01: And also I would like to make a clarification of this summary. [00:16:08] Speaker 01: This state's appellant objected to agency submission of Exhibit 21. [00:16:14] Speaker 01: It's my understanding that [00:16:19] Speaker 01: that the agency did not include exhibit 21 to the submissions because it was possibly prejudicial and irrelevant. [00:16:26] Speaker 01: And we refer to this on page 17 of our brief, but this is to show that petitioner was aware at this time at the pre-hearing of why exhibit 21 was not included in the submissions to the board and should have been aware that it was received in discovery by Mr. Bailey's prior counsel, Mr. Mahoney. [00:16:49] Speaker 00: So this summary doesn't specifically talk about whether Mr. Beble and his counsel had it, and not only about whether it was in the board record. [00:16:59] Speaker 01: That's correct. [00:17:00] Speaker 01: This doesn't talk about the prior submission during discovery. [00:17:04] Speaker 01: That's referenced in the agency's post-hearing submission. [00:17:09] Speaker 01: The declaration. [00:17:09] Speaker 01: In the declaration, yes. [00:17:14] Speaker 01: Petitioner, therefore, could have asked the decide official at the hearing whether Exhibit 21 played a part in his consideration. [00:17:22] Speaker 01: The administrative judge, in her opinion, says that the petitioner didn't ask for Exhibit 21 until the hearing, and then Petitioner concedes that he did not ask the deciding official questions about the exhibit and about the possible impact on the decision to remove Petitioner. [00:17:42] Speaker 01: The administrative judge ruled in her decision that the deciding official credibly testified that he would have removed Petitioner based on the May 11th incident alone. [00:17:53] Speaker 01: And as I mentioned before, it's incumbent on Mr. Bailey to raise this due process argument timely, which was only raised in a post-hearing submission, and that was not in a timely fashion. [00:18:08] Speaker 01: The board found that there was no record evidence that appellants due process. [00:18:11] Speaker 02: It's certainly not clear that having the assigned officials say that I didn't rely on this is sufficient to eliminate a due process problem if, in fact, he had it and considered it and the employee wasn't made aware of it at the time. [00:18:32] Speaker 01: By keeping it out of the board record because of the possible prejudicial effect, the Air Force admits that it could be prejudicial. [00:18:41] Speaker 01: The Air Force provided the whole case file to Mr. Babley in order for him to respond to the notice of proposed [00:18:50] Speaker 01: removal. [00:18:53] Speaker 00: But not Exhibit 21. [00:18:55] Speaker 00: At that time. [00:18:56] Speaker 01: That included Exhibit 21. [00:18:57] Speaker 01: At that time, the decision to remove it from the board record was based on the fact that neither the citing official. [00:19:05] Speaker 00: I guess I need clarification. [00:19:10] Speaker 00: Long before you get to the board, before there's an appeal. [00:19:13] Speaker 00: We're now just in front of the agency, and there's a notice of proposed removal and then a decision-making process. [00:19:23] Speaker 00: At that point, is the evidence that Exhibit 21 was provided to Mr. Beblich? [00:19:30] Speaker 01: Well, the evidence shows that he was provided the report, but it's not detailed enough to show that he was provided [00:19:39] Speaker 01: the full report, exhibit 21. [00:19:41] Speaker 01: But there's no evidence showing that he wasn't provided the full report. [00:19:45] Speaker 00: So what is the evidence that he was provided in the report? [00:19:49] Speaker 01: Well, in the notice of proposed removal, he was informed that he's entitled to see the government's evidence and then was told who to contact to do so. [00:19:57] Speaker 01: And then in his rebuttal response, which is in the supplemental appendix 15, [00:20:04] Speaker 00: I'm sorry, rebuttal response is now in the board after the HAC. [00:20:09] Speaker 01: No, I'm sorry. [00:20:11] Speaker 01: No, I'm still back in where the removal process. [00:20:15] Speaker 00: Okay. [00:20:15] Speaker 01: So when I say rebuttal response, to clarify, I mean his response to the notice of supposed removal. [00:20:21] Speaker 01: Okay. [00:20:21] Speaker 01: And it's a summary of his response because I think it was oral. [00:20:25] Speaker 01: And this is in the supplemental appendix at 15. [00:20:33] Speaker 01: The report is, and I'm specifically on page 16, about halfway through the paragraph four, it says Mr. Babley continued discussing the report on how multiple members feel threatened and yet have all still worked with Mr. Babley. [00:20:48] Speaker 01: So Mr. Babley is referring to the report. [00:20:51] Speaker 01: He received the report. [00:20:52] Speaker 01: in order for him to respond to the Notice of Proposed Removal. [00:20:56] Speaker 01: And there's no evidence that he didn't receive the full report. [00:20:59] Speaker 02: Where does the Notice of Proposed Removal refer to the availability of the evidence to him? [00:21:06] Speaker 01: So the Notice of Proposed Removal is in Appendix page 29. [00:21:11] Speaker 00: It's paragraph 7 on page 8, page 30. [00:21:18] Speaker 01: Thank you, Your Honor. [00:21:18] Speaker 01: Paragraph 7 on Appendix 30, you're entitled to review the material on which this notice is based, on which was relied on to support the reasons for this proposed action. [00:21:28] Speaker 01: I will provide these documents to you upon request. [00:21:30] Speaker 00: And I guess I wasn't sure just from that language alone. [00:21:34] Speaker 00: whether that meant everything that was in front of the proposing official or only the things that, as indicated in the notice of proposed removal, the proposing official relied on, which might not have been the criminal history. [00:21:49] Speaker 01: Well, it's unclear what is relied upon. [00:21:52] Speaker 00: Based on and relied on are not clear, right? [00:21:57] Speaker 01: Yes, Your Honor. [00:21:58] Speaker 01: This is everything that was considered. [00:21:59] Speaker 01: The case file, which is essentially the ROI that we've been discussing, and then also a commander, a CDI, a commander, and the D is escaping me by investigating. [00:22:12] Speaker 01: Oh, is that a different thing? [00:22:13] Speaker 00: Oh, it's two different things. [00:22:14] Speaker 01: Those, yes, those are two different reports. [00:22:17] Speaker 01: The CDI is based on Mr. Babley's allegations of an unfair work environment. [00:22:24] Speaker 01: And that was released, I believe it was June of 2016. [00:22:29] Speaker 01: And those two documents essentially is the case file. [00:22:32] Speaker 01: And the whole case file was made available to Mr. Babley. [00:22:35] Speaker 01: I'll also note. [00:22:38] Speaker 01: There isn't a record citation for that. [00:22:42] Speaker 01: There is no record citation. [00:22:44] Speaker 01: With the due process claim coming up after the hearing, the government wasn't able to put on evidence of a claim that wasn't being made. [00:22:52] Speaker 01: The government doesn't have the burden to dispute a due process claim that's not being made. [00:22:58] Speaker 01: The evidence is here, and it's clear in the record that Mr. Bailey was providing materials, and there's no evidence that he wasn't provided exhibit 21. [00:23:07] Speaker 01: The reasoning that the Air Force used not to provide it to the board submissions didn't apply at this time because he didn't know what the deciding official was going to rely on. [00:23:17] Speaker 01: And it's a tricky word to use in this context. [00:23:20] Speaker 01: But the deciding official made clear that he reviewed the case file. [00:23:26] Speaker 01: And Mr. Babley was entitled and given access to that case file. [00:23:32] Speaker 01: The deciding official, in fact, the notice of post removal points to the May 11th incident as being the charge and what's being relied upon. [00:23:43] Speaker 01: The notice of additional information by the deciding official actually called out more information from the case file to say, I'm also going to consider [00:23:54] Speaker 01: other outbursts, other than the May 11th outburst that occurred in April 2016, but didn't mention the criminal history at all. [00:24:02] Speaker 01: So Mr. Babley received the due process that he's entitled to for his removal. [00:24:12] Speaker 00: Is there what we often see, I think, a kind of Douglas Factor checklist document? [00:24:20] Speaker 01: Absolutely, Your Honor. [00:24:21] Speaker 01: It's in the agency's submission, the pre-hearing submission to the board, which I think is tab 25. [00:24:29] Speaker 00: Is it in one of these blue or red documents? [00:24:34] Speaker 01: Unfortunately, not. [00:24:35] Speaker 01: It's not in either appendix. [00:24:38] Speaker 01: But it's in the certified list. [00:24:42] Speaker 01: Tab 25, just after the agency pre-hearing submission, is the Douglas Factors analysis. [00:24:50] Speaker 01: I guess it didn't make it in because it's not really being challenged, but I mean, the court will look through it and see that there's no reference to the criminal history in the Douglas Factors analysis. [00:25:05] Speaker 01: Okay. [00:25:06] Speaker 01: Anything further? [00:25:07] Speaker 01: Nothing further, Your Honor. [00:25:09] Speaker 01: Thank you. [00:25:22] Speaker 04: Your Honor, you have asked twice what evidence is there that Mr. Bedley did not receive this Exhibit 21 as criminal history as a part of the removal packet. [00:25:31] Speaker 04: And the evidence we have is his own declaration, which is found in Appendix 45 and 46, where he states that the first time he saw it was the day before this declaration was signed. [00:25:47] Speaker 04: He saw it on the 27th of March. [00:25:48] Speaker 04: That was the first time he'd seen it. [00:25:51] Speaker 04: both through the removal process, the discovery process, and the appeal process. [00:25:56] Speaker 04: The agency produced to him the ROI, the report of investigation, that did not include his criminal history. [00:26:04] Speaker 04: But they had it at some point because they removed it and submitted a different document in its place. [00:26:11] Speaker 04: So when we talk about whether or not his due process... This was submitted to the agency after the hearing, right? [00:26:19] Speaker 04: The declaration? [00:26:20] Speaker 01: Yeah. [00:26:21] Speaker 04: Yes, it was, because that's the first time we saw that particular document. [00:26:25] Speaker 04: Even though we had talked about it beforehand, we had requested it during the hearing, and the judge finally made them produce it afterwards, that was the first time he'd seen it. [00:26:42] Speaker 04: And that's when he finally looked at what was being [00:26:48] Speaker 04: alleged about him, the burglary, the traffic violations, and the assault charge. [00:26:54] Speaker 04: The first time he'd been able to respond to those particular charges, he didn't know that was in his criminal history. [00:27:01] Speaker 04: And if in this case, they had a copy of it during the removal process, if the proposing official had a copy of it, the deciding official had a copy of it, and they relied upon it in any way, any manner, then that was harmful error. [00:27:18] Speaker 04: And that's what's not being addressed here, is why did they take it out of the removal packet? [00:27:24] Speaker 04: He did not have a meaningful opportunity to respond to his criminal history possibly being considered by the deciding official. [00:27:33] Speaker 04: That's something that's not being answered here, is why they did that, when they did it, and who ordered it. [00:27:41] Speaker 02: Fair enough, but the problem is this should have been raised at the hearing. [00:27:46] Speaker 02: or after the hearing in the form of request to resume the hearing. [00:27:52] Speaker 02: So we have this, the record is unclear as to whether this was provided earlier or not and why wasn't it incumbent on council to raise this issue before the board and say we didn't have it before, we would like to have the hearing reopened. [00:28:14] Speaker 04: And I'm sorry that the record does not reflect that. [00:28:19] Speaker 04: We did request that the judge reopen the hearing so that we could examine the deciding official. [00:28:25] Speaker 04: And I believe that was done verbally, not in writing. [00:28:32] Speaker 04: and she denied that. [00:28:34] Speaker 02: Is there any record here of the ALPJ acting on such a request, denying such a request? [00:28:56] Speaker 04: No, other than the statement I've already written, or excuse me, read to the court from appendix page two [00:29:04] Speaker 03: Look at Appendix 52. [00:29:09] Speaker 03: And this is an order that reopened the record. [00:29:19] Speaker 03: Says no further evidence or argument will be considered unless shown to be new and material evidence not available before the close. [00:29:28] Speaker 03: Did this have any impact on any decision to raise the issue? [00:29:35] Speaker 04: We did raise the issue during this period. [00:29:38] Speaker 04: And as I said, I thought we'd raised it at least verbally. [00:29:43] Speaker 04: I know we did not file a motion to reopen the hearing, but I believe we had raised it verbally. [00:29:50] Speaker 04: It was during this period of time when they produced the document to us and we responded with the declaration stating that we believe that there was a due process violation for Mr. Bebley. [00:30:00] Speaker 03: So then this document here that says there's no further argument will be considered unless there's something different. [00:30:08] Speaker 03: Did that foreclose you're raising the issue again? [00:30:11] Speaker 04: It would appear to, yes. [00:30:14] Speaker 00: In the government's brief on this, in the red brief under the section starting at 21, [00:30:23] Speaker 00: The administrative judge did not abuse her discretion when she did not reconvene the hearing. [00:30:30] Speaker 00: I guess does that just presuppose that in fact the request was made to her and she denied it? [00:30:42] Speaker 04: And that's my point, Your Honor, is that we did make that kind of a request and she did not grant it. [00:30:50] Speaker 04: Record was closed. [00:30:51] Speaker 04: She was not going to take any further action. [00:30:53] Speaker 04: We believe that there was an abuse of discretion because she didn't follow the law. [00:31:00] Speaker 04: If there's an obvious due process violation, I believe it's the Ministry of Judges obligation to reopen the hearing, or at least take some action on the side of the person whose rights are being violated. [00:31:16] Speaker 03: Is there a transcript of the hearing? [00:31:20] Speaker 04: There is a transcript, Your Honor. [00:31:24] Speaker 04: I don't have it available with me. [00:31:26] Speaker 03: No, but would that transcript reveal that you made an objection at that time? [00:31:37] Speaker 04: Sure, it would state whatever was stated there at the hearing. [00:31:40] Speaker 02: Yes. [00:31:42] Speaker 02: And the request would have been made until after the hearing. [00:31:46] Speaker 02: I'm sorry? [00:31:47] Speaker 02: Under your theory, the request wouldn't have been made until after the hearing when you got the document. [00:31:51] Speaker 02: No? [00:31:54] Speaker 02: Or is your theory that it was made at the hearing? [00:32:06] Speaker 04: Even the judge says, at the hearing, the appellant's representative requested that the agency submit a copy of the criminal history document for the record. [00:32:14] Speaker 04: So I would think that a transcript of the hearing would show that. [00:32:18] Speaker 04: But she notes that on page two of the appendix. [00:32:22] Speaker 04: Okay. [00:32:23] Speaker 03: And this declaration was filed, the declaration, Mr. Debbie, was filed the day after the hearing, correct? [00:32:30] Speaker 04: It was filed the day after we got the document. [00:32:32] Speaker 02: Okay. [00:32:35] Speaker 02: Okay. [00:32:35] Speaker 02: All right. [00:32:35] Speaker 02: Thank you, Mr. Boutard. [00:32:36] Speaker 02: Thank both of you. [00:32:37] Speaker 02: That concludes our session for this meeting. [00:32:41] Speaker 02: All right. [00:32:47] Speaker ?: The Honorable Wharf is adjourned until 1 a.m. [00:32:50] Speaker ?: morning at 10 a.m.