[00:00:09] Speaker 03: The next case for argument is 18.1873, Borza versus Connors. [00:00:32] Speaker ?: I think your shoes are starting to small. [00:00:55] Speaker 02: I think we're ready. [00:00:57] Speaker 02: Please proceed. [00:01:06] Speaker 02: Good morning. [00:01:07] Speaker 02: Good morning. [00:01:08] Speaker 02: And may it please the court. [00:01:09] Speaker 04: What's the precise number of days of the time served length of suspension, 563 or 561? [00:01:17] Speaker 02: It's 561 is the correct date. [00:01:20] Speaker 02: There was a little bit of a [00:01:23] Speaker 02: difficulty in determining it based on when she was reinstated and when the effective date of her reinstatement was. [00:01:31] Speaker 02: That again brings us to the main issue in this case, which is the time served suspension imposed by the arbitrary in this case is arbitrary, and under the court's holding in Green Street, it should be vacated and remanded to the arbitrator. [00:01:44] Speaker 02: And the reason it's arbitrary, similar to the reason... [00:01:48] Speaker 02: is correct. [00:01:48] Speaker 02: He did not... He didn't articulate it. [00:01:50] Speaker 02: He didn't articulate it, and also he didn't consider any of the factors required in determining the length of the suspension. [00:01:58] Speaker 03: Can I ask you just hypothetically, you know, it's really... I mean, normally the table of penalties doesn't go up that high. [00:02:04] Speaker 03: You're not arguing that that number somehow exceeds the level of the [00:02:11] Speaker 03: range that he could consider, right? [00:02:14] Speaker 02: Correct. [00:02:15] Speaker 02: We're not arguing that he theoretically could have considered this length of the suspension. [00:02:21] Speaker 03: Okay, well, can you just hypothesize generally what would be sufficient? [00:02:25] Speaker 03: I mean, it's hard for me, even the distinction if we said somebody picked 30 as opposed to 45 days, and those are normal things. [00:02:34] Speaker 03: But here we've got even a larger range. [00:02:36] Speaker 03: How does one possibly articulate something that's not arbitrary to justify the difference between 500 and 561? [00:02:46] Speaker 02: And I think I understand your question. [00:02:48] Speaker 02: The issue is not whether or not he articulated any amount of days, it's whether he made any kind of reasoned deliberation over the length of the suspension. [00:02:59] Speaker 02: And here, just as in Green Street, the arbitrator did not consider anything in setting the length of the suspension. [00:03:05] Speaker 02: Well, he says he did. [00:03:07] Speaker 03: So was that also true of Green Street? [00:03:09] Speaker 03: I mean, in this case, he does say something, right? [00:03:13] Speaker 03: He says, based on the entire record in this matter. [00:03:18] Speaker 03: And clearly, he's already said he's already looked at the Douglas Factors. [00:03:21] Speaker 03: He knows what the Douglas Factors are. [00:03:23] Speaker 03: So he says, based on the entire record in this matter appears as reasonable punishment for blah, blah, blah. [00:03:30] Speaker 02: So at least he says that. [00:03:35] Speaker 02: say that, based on the entire record of the matter, that an extended suspension is warranted. [00:03:40] Speaker 02: However, he doesn't define what that extended suspension is. [00:03:43] Speaker 02: And this is almost identical to the language used by the arbitrator in Green Street, where the arbitrator in Green Street said that, based on the Douglas Factors, again, a substantial suspension is the maximum reasonable penalty. [00:03:55] Speaker 02: In both cases, the arbitrators are saying that removal is unwarranted and that some sort of suspension is warranted. [00:04:02] Speaker 02: However, they're not saying [00:04:04] Speaker 02: what the length of that suspension is at that point, and there's no discussion on why the length they imposed was appropriate. [00:04:14] Speaker 04: The core of your argument seems to me to be your entitled or principled analysis. [00:04:19] Speaker 02: to some degree, and it's also that the suspension must be based on a factor that is not arbitrary. [00:04:27] Speaker 02: How do you measure them? [00:04:31] Speaker 01: The arbitrator said she had a good past record and she was capable of rehabilitation. [00:04:38] Speaker 01: Do you attribute 100 days to each of these? [00:04:45] Speaker 01: How do you do it? [00:04:46] Speaker 01: It's not a quantitative analysis. [00:04:48] Speaker 02: That's true. [00:04:49] Speaker 02: It's not a quantitative analysis. [00:04:51] Speaker 02: However, there are factors that you should consider in determining the length of the suspension. [00:04:54] Speaker 02: And one of the key factors in Douglas is comparators. [00:04:57] Speaker 02: And here we believe if the arbitrator actually did consider comparators when determining the length of the suspension, as opposed to whether removal is warranted at all, he would have determined that a shorter suspension [00:05:08] Speaker 02: was appropriate. [00:05:10] Speaker 02: And again, the arbitrariness is sort of made clear when you review how the suspension's length was actually determined. [00:05:19] Speaker 04: I'm not at all certain that we won't end up with the same result, nor can you be. [00:05:27] Speaker 02: And that's correct. [00:05:28] Speaker 02: That's correct. [00:05:29] Speaker 02: We may end up with the same result if the case is vacated as we're requesting and remanded to the arbitrator. [00:05:35] Speaker 02: The arbitrator may review the factors and determine that a 560-day suspension or a 563-day suspension is warranted, but at least he will then have gone through the factors and the decision wouldn't be based on [00:05:49] Speaker 02: when he issued his decision, because that's the key here. [00:05:52] Speaker 02: He could have issued his decision 100 days later, and the suspension would have been 661 days. [00:05:57] Speaker 02: He could have theoretically issued it earlier. [00:05:58] Speaker 03: But you're saying he's prohibited from using the fact that the agency comes close to having been justified in removing this person. [00:06:08] Speaker 03: And therefore, we just don't think back pay would be appropriate in these circumstances, even though I think maybe she ought to be reinstated. [00:06:16] Speaker 03: So you think that's an inappropriate consideration? [00:06:21] Speaker 02: Not necessarily, but that's not the issue here. [00:06:24] Speaker 02: And there's a couple of cases that are cited in Green Street, the AFGE case and Allette case, which discuss an arbitrator imposing a suspension and not providing back pay. [00:06:33] Speaker 02: However, that's a separate analysis under the Back Pay Act, which requires the arbitrator to determine whether or not the actual removal was unjustified and unwarranted. [00:06:42] Speaker 03: No, no, no. [00:06:42] Speaker 03: I'm not talking about it as a legal matter under the Back Pay Act. [00:06:45] Speaker 03: I'm aware of those cases. [00:06:46] Speaker 03: It's just a matter of equities or, you know, you're not limited to just the Douglas Factories. [00:06:53] Speaker 03: You can look at other things. [00:06:55] Speaker 03: And I'm talking about this more as another factor in that analysis, not under the legal thing about a Back Pay Act. [00:07:02] Speaker 02: Correct, and he could have looked at that in determining the length of an appropriate suspension and sort of linked that to what he did. [00:07:09] Speaker 02: However, here he does not. [00:07:10] Speaker 02: Again, it's based solely on when he issued this decision because, you know, scheduling, for instance, you know, we could have scheduled the arbitration earlier and the decision then would have had 30 days [00:07:21] Speaker 02: fewer days to the suspension or again you could have issued the decision a hundred days later and the suspension could have been a hundred days greater. [00:07:36] Speaker 01: he ends up with the same thing with some reasoning, you haven't gotten anywhere. [00:07:41] Speaker 01: So you're asking for, what, a reversal so that she gets her job back immediately and gets back pay? [00:07:51] Speaker 02: So I understand your question, and it's true that if you do provide the remedy we're requesting, that is to vacate the suspension and remand it, the arbitrator may end up at the same conclusion. [00:08:01] Speaker 02: However, we believe that if the decision is vacated, the arbitrator will then do what he was supposed to do, and that is actually consider what the length of the suspension should be. [00:08:11] Speaker 02: Here, we don't believe he actually made that consideration. [00:08:16] Speaker 02: And so again, the chips may fall where they may when it's remanded. [00:08:20] Speaker 02: But we believe it is important that the suspension's length not be arbitrary and that it be based on some reasoned analysis. [00:08:27] Speaker 02: And I think Judge Wallach said that that analysis is important to us. [00:08:33] Speaker 03: Can I ask you just because you alluded to the fact that it seems arbitrary because it's predicated or relies on the time it took for the arbitration. [00:08:43] Speaker 03: So if he had said, [00:08:45] Speaker 03: Okay, I recognize that seems a bit arbitrary. [00:08:48] Speaker 03: So from the date we invoked arbitration, that's the date I'm gonna use. [00:08:54] Speaker 03: would that take away the arbitrariness of it? [00:08:58] Speaker 03: You seem to rely on the fact that this arbitration proceeding can take anywhere from 10 days to 10 years, and nobody has control over that. [00:09:06] Speaker 03: So to include that time period in the suspension, in your view, is arbitrary. [00:09:11] Speaker 03: Correct. [00:09:11] Speaker 03: I understand that argument. [00:09:13] Speaker 03: But certain of it is kind of procedural and not arbitrary. [00:09:17] Speaker 03: So if you take out the time it took to actually arbitrate this, [00:09:21] Speaker 03: Does that make it less arbitrary in your view? [00:09:24] Speaker 03: If he had given the time for suspension and just given her the days up to the arbitration period. [00:09:31] Speaker 02: So up to... So I'm not certain I understand the question, because in a case like this, once you invoke arbitration, there's a number of sort of factors that play into when the arbitration is actually held and the decision is issued. [00:09:44] Speaker 04: So the question is you can cut all that out. [00:09:46] Speaker 04: And the arbitrator says, [00:09:48] Speaker 04: Well, gee, the time is from the time of the determination to the day you filed for arbitration. [00:09:57] Speaker 04: There is a date certain. [00:09:59] Speaker 04: If it doesn't vary, that was the question. [00:10:02] Speaker 02: Okay, and correct, and I apologize that I didn't understand your question, but [00:10:09] Speaker 02: That would be less arbitrary. [00:10:11] Speaker 02: And again, if it was done with some kind of reasoning, it would sort of solve the problem here. [00:10:18] Speaker 03: Is she back at work? [00:10:20] Speaker 03: I mean, the arbitrator kind of gave her a choice, or left the door open. [00:10:24] Speaker 03: She's got to return to work. [00:10:25] Speaker 03: And my understanding was, I think, in the record, that she did return to work. [00:10:28] Speaker 02: Correct. [00:10:29] Speaker 02: So she did return to work. [00:10:31] Speaker 02: And then subsequent to the filing of this case, she retired. [00:10:36] Speaker 03: Oh, OK. [00:10:36] Speaker 03: So she's no longer a lawyer. [00:10:41] Speaker 02: And if there's no further questions, I'll reserve the remainder of my time. [00:10:43] Speaker 04: My impression is that this is important to the American Federation of Government Employees. [00:10:51] Speaker 02: That is correct. [00:10:52] Speaker 02: It's important to federal employees as a whole. [00:10:55] Speaker 02: However, it is also important to the petitioner because she could be entitled to additional back pay as well as benefits that she wasn't entitled to. [00:11:04] Speaker 02: Your interest in the principal as well. [00:11:08] Speaker 02: Correct. [00:11:24] Speaker 03: Is anybody considered settling this case? [00:11:29] Speaker 00: I am not aware that there have been discussions of settlement, Your Honor. [00:11:32] Speaker 04: Thank you. [00:11:34] Speaker 04: Am I correct that the government isn't disputing the arbitrator's decision to drop the whistle-blowing charge? [00:11:40] Speaker 00: We have not appealed that, no, Your Honor. [00:11:43] Speaker 00: Your Honors, this court in Green Street said that a time-surf suspension can be appropriate and that it's arbitrary when there is no analysis. [00:11:52] Speaker 00: What the arbitrator did here is go a step beyond Green Street. [00:11:55] Speaker 00: We think it's a meaningful step. [00:11:57] Speaker 03: Tell me why it's meaningful and not an insufficient step. [00:12:01] Speaker 03: Right. [00:12:01] Speaker 00: What he did is he laid out a Douglass factor analysis dealing with termination and then he turns to the suspension and he says, for the reasons I've put forth and based on the whole record, what he's saying is I could copy and paste the analysis I just did as to the appropriate of [00:12:17] Speaker 00: appropriate penalty, in which factors he considered, factor six, where he compared it to other penalties, and factor 12, the appropriate alternate penalty that will defer this sort of conduct in other employees. [00:12:33] Speaker 00: So he could have copied and pasted that. [00:12:34] Speaker 00: Instead, he referenced it. [00:12:36] Speaker 00: I've just done that analysis, and I've determined that this suspension, the suspension we've gotten [00:12:41] Speaker 03: I don't know exactly Green Street. [00:12:44] Speaker 03: You probably know the record better than I in that case in terms of what the arbitrator said. [00:12:48] Speaker 03: But what we said in Green Street was that although the arbitrator conducted an analysis under the Douglas Factors, his analysis was directed entirely to whether termination was an appropriate penalty. [00:13:00] Speaker 03: The arbitrator's opinion contains no findings or analysis concerning the appropriate length of Green Street's suspension. [00:13:09] Speaker 03: Where's the finding and analysis where he just says, I've considered the entire record? [00:13:15] Speaker 00: Two points in response. [00:13:17] Speaker 00: The court in Green Street quotes exactly what the decision maker, I think it was the panel, did there, and that's that the [00:13:25] Speaker 00: It's on the first page of the decision. [00:13:29] Speaker 00: Oh, it's 706. [00:13:31] Speaker 00: And what the panel said there is, I conclude the grievance termination exceeds the limits of reasonableness, as required by the Douglas Factors, and that a substantial suspension is the maximum reasonable penalty. [00:13:44] Speaker 00: That's what was said there. [00:13:45] Speaker 00: The difference here is for the foregoing reasons and based on the whole record. [00:13:50] Speaker 00: Again, it's a small step, but we think it's a meaningful step. [00:13:52] Speaker 03: Wait a minute. [00:13:53] Speaker 03: I'm reading it, and it says the limits of reasonableness is required by the Douglas Factors and that a substantial suspension is the maximum reasonable penalty for the grievance misconduct and the efficiency of service. [00:14:04] Speaker 03: OK. [00:14:05] Speaker 00: And in Green Street, that doesn't give the reviewing court anything to look back at. [00:14:10] Speaker 00: Does that mean based on the Douglas factors? [00:14:12] Speaker 00: Does it mean something else? [00:14:14] Speaker 00: The decision maker there doesn't say. [00:14:16] Speaker 00: The difference here is the arbitrator says, for the reasons that I've just explained, for the foregoing reasons plus the record as a whole, this is the appropriate suspension. [00:14:27] Speaker 03: So how do we review that? [00:14:28] Speaker 03: The question is, the question in... I mean, he doesn't pick out any factors. [00:14:35] Speaker 03: I mean, we should assume he did all. [00:14:36] Speaker 03: He analyzed the factors, but that was in terms of the suspension. [00:14:40] Speaker 03: So do you want us to take that one paragraph analysis and say that's also the same analysis that applies to the length of the suspension? [00:14:50] Speaker 00: Well, I think it would have to be because he includes factors 6 and 12, which wouldn't apply, particularly 12, which is the alternate penalty, wouldn't apply to the termination penalty. [00:15:01] Speaker 00: It can only apply to a suspension because it's an alternate sanction. [00:15:06] Speaker 03: All right. [00:15:06] Speaker 03: So his analysis of the Douglas factors was they all favor her except for the seriousness of the offense, right? [00:15:15] Speaker 03: Yes. [00:15:15] Speaker 03: And then he considers her 17-year record. [00:15:21] Speaker 03: So you're saying we should take that as being the same analysis he necessarily applied to the length of the suspension? [00:15:29] Speaker 00: Her 17-year record I believe he also calls out that she's come back to work and she's been able to or she was working while this was going on without showing animus or something else that would suggest that termination is the only [00:15:43] Speaker 00: Penalty that would be appropriate here. [00:15:45] Speaker 00: It is admittedly a brief analysis. [00:15:47] Speaker 03: We will not say there's more here than there is, but it uses that to conclude that the penalty of removal is too severe. [00:15:55] Speaker 03: But we don't know why he. [00:15:59] Speaker 03: thought 30 days versus 560 days was the appropriate penalty under the Douglas factors, do we? [00:16:06] Speaker 03: We don't have any idea, do we? [00:16:08] Speaker 04: Can the government say with a straight face that it's a principled analysis of the time involved? [00:16:20] Speaker 00: Yes, your honor, because what the arbitrator looks at, he specifically analyzes this and says, unlike in QIFO, unlike in Green Street, this is a fireable offense. [00:16:29] Speaker 00: This is an offense that, but for the other factors, termination would absolutely be appropriate. [00:16:34] Speaker 00: So then he comes to the question of, all right, what is the penalty that's appropriate? [00:16:38] Speaker 00: And I've looked at the penalty sheet, the amount of time that has gone by, and yes, it is, I believe this is the right penalty. [00:16:46] Speaker 00: That sort of, and I believe, [00:16:48] Speaker 00: The court was previously alluding to this. [00:16:51] Speaker 00: This sort of length of sentence factor is inherently discretionary and inherently subject to, well, why not 10 days more? [00:16:59] Speaker 00: Why not 100 days more? [00:17:00] Speaker 00: Why not less? [00:17:01] Speaker 04: And why doesn't anyone have a right to an articulated, principled decision as to the length of time of the penalty? [00:17:14] Speaker 00: I would say to some extent there's a question of what more should the arbitrator say. [00:17:19] Speaker 00: If the arbitrator puts in one sentence and says, therefore I think it's 563 days, that I don't think would satisfy the court any more than what he's done. [00:17:27] Speaker 04: If you shifted this over to sentencing guidelines, it would explode. [00:17:32] Speaker 00: I'm sorry. [00:17:32] Speaker 04: I said if we shifted this over to a sentencing guidelines analysis in criminal procedure, it would explode in a flurry of due process. [00:17:44] Speaker 04: My goodness. [00:17:48] Speaker 00: I wouldn't disagree with that. [00:17:50] Speaker 03: Well, I appreciate that. [00:17:51] Speaker 03: I mean, the government, obviously, whoever litigated this presumably, I assume, didn't see this coming because the government was advocating for removal, wasn't advocating alternatives and justification for those alternatives, and citing Green Street so that the arbitrator would realize you have to put more analysis in. [00:18:09] Speaker 03: So I appreciate the position you're in. [00:18:14] Speaker 03: It's quite difficult. [00:18:17] Speaker 03: Yeah, and we were asking your friend about how much the arbitrator has to articulate, because you're right. [00:18:22] Speaker 03: Essentially, everything he says is going to assume an enormous amount of discretion on his part, and it's hard to articulate. [00:18:32] Speaker 03: But it's just whether or not this is consistent with Green Street. [00:18:37] Speaker 04: Based on the record, if the arbitrator had come down the other way, I wouldn't be surprised. [00:18:43] Speaker 04: That is, if the arbitrator had said, hey, this person stole all these hours, reason for termination. [00:18:53] Speaker 04: That wouldn't have shocked me. [00:18:57] Speaker 04: I'm just concerned about the process here. [00:19:00] Speaker 00: and I recognize that concern and I think to some extent it certainly if the court wants more the court can certainly do that and the arbitrator will attempt to articulate more but there's I think fundamentally while Green Street says that you can't have no reasons and while you Judge Wallach have said I need an articulated decision what exactly in this sort of a situation where [00:19:26] Speaker 00: It's fair to say it's not termination because I can compare to other employees who have been terminated or not and it doesn't match up. [00:19:32] Speaker 04: My problem is I don't know. [00:19:35] Speaker 04: I don't know what was in there that caused the arbitrator to say no, this is a person who has 17 years of unblemished service. [00:19:46] Speaker 04: What else was in there that the arbitrator was examining that he's not telling us because [00:19:53] Speaker 04: I would think in the norm that person would be out the door. [00:19:56] Speaker 04: So was there a culture within that sub-entity of which she was a part and she was just going merrily along with everyone saying, no, this is fine, we'll do it. [00:20:08] Speaker 04: And she operated under that assumption. [00:20:12] Speaker 04: I don't know. [00:20:14] Speaker 04: But the arbitrator may, in determining that period of time, [00:20:21] Speaker 04: come back and tell us yes or no, this is why. [00:20:25] Speaker 04: And I think they have to. [00:20:28] Speaker 00: I think to the extent it's helpful, I think the arbitrator's decision does talk about, in terms of why termination isn't appropriate, the fact that this was something that supervisors were aware of and perhaps even encouraged. [00:20:40] Speaker 04: And certainly the arbitrator, when he comes- But there were lots of other people, and she was the goat. [00:20:47] Speaker 00: Well no, there were a lot of other people. [00:20:52] Speaker 00: Most of them, there's a range of hours between on the low, I think, in the 20s and the high over 1,200. [00:21:00] Speaker 00: Everyone above 200 was either terminated. [00:21:03] Speaker 00: 210 was either terminated or chose to leave before the sentence could come down. [00:21:08] Speaker 00: So that's, I think, part of the analysis that the arbitrator references with factor six of how does this compare? [00:21:15] Speaker 00: And the answer is, well, almost everyone else anywhere near her hours was gone. [00:21:22] Speaker 00: I won't say it's more than a step. [00:21:25] Speaker 00: It's a step. [00:21:25] Speaker 00: We think it's a meaning. [00:21:26] Speaker 03: You've made the sort of sub-argument that at least with respect to the period from the time arbitration is voked until the arbitrator decides the case, to use that time [00:21:38] Speaker 03: is kind of inherently arbitrary, because that time isn't based on anything other than the schedule and convenience and swiftness of the arbitrator's operations. [00:21:49] Speaker 03: It can't possibly have anything to do with what she did or why she did it. [00:21:53] Speaker 03: Do you have a view on that? [00:21:56] Speaker 00: I would say the time from when the case was fully submitted and until the time the arbitrator issued a decision, I believe, was four months, which, frankly, for a lengthy decision like this, did not seem unreasonable. [00:22:08] Speaker 00: Were the court to determine fundamentally that any time after the case is submitted, there needs to be a clear articulation of why that period should be tacked on? [00:22:22] Speaker 00: I think that could be a reasonable principle to help guide in these sort of decisions. [00:22:27] Speaker 00: As the court said, the arbitrator may come back and he may say, she stole time on 564 occasions. [00:22:34] Speaker 00: Leading to 900 hours. [00:22:35] Speaker 00: I think a penalty of one day per occasion is appropriate So that's what I did so we may end up right back where we are with the exact same suspension But certainly telling the arbitrator you've got to explain why those four months should be part of this Could certainly be a I think a helpful principle Thank you, thank you [00:23:05] Speaker 02: Yes. [00:23:06] Speaker 02: Your Honor, I'd just like to clarify a couple of points. [00:23:10] Speaker 02: First, you discussed sort of an alternative regarding when the case was submitted and the invocation of arbitration. [00:23:17] Speaker 02: I think there's a little confusion. [00:23:20] Speaker 02: We believe the time – setting a time service suspension is arbitrary. [00:23:25] Speaker 02: However, I understood your previous question to be that [00:23:29] Speaker 02: The time between the invocation of arbitration and the award was an inherently arbitrary time. [00:23:38] Speaker 02: And that was not four months. [00:23:39] Speaker 02: That was far greater than four months. [00:23:41] Speaker 02: The four months is from when the party summit briefs. [00:23:47] Speaker 02: The invocation of arbitration actually occurred [00:23:52] Speaker 02: a year prior to the decision. [00:23:55] Speaker 02: So I think that's an important distinction because, again, the time from invocation to the actual decision of the arbitrator is something that is entirely unrelated to the conduct that the parties had no control over other than through scheduling and so on. [00:24:12] Speaker 02: The other thing I'd like to note is that the factual record is not before, the entire factual record is not before this court. [00:24:20] Speaker 02: And there are comparators, we believe, that would lead an arbitrator to shorten the suspension. [00:24:31] Speaker 02: Then finally, I'd state that the respondents stated that it was but for the other factors that the arbitrator [00:24:41] Speaker 02: did not remove this employee, and that was the same case in Green Street. [00:24:45] Speaker 02: It was but for those other factors that the arbitrary decided not to remove the employee. [00:24:50] Speaker 02: And finally, I'll say again, a close review of both Green Street and this decision show that they're functional equivalents, and we'd respectfully request that the case be – the suspension be vacated and the case be remanded.