[00:00:00] Speaker 04:
Today is number 18-1350, Cooper versus Armey.

[00:00:07] Speaker 04:
And we need counsel.

[00:00:14] Speaker 04:
Okay, Ms.

[00:00:29] Speaker 04:
Glickson.

[00:00:58] Speaker 04:
Go ahead.

[00:00:59] Speaker 00:
Good morning, and may it please the court.

[00:01:02] Speaker 00:
Your honors, I'm well aware that it is a somewhat unusual thing for an agency decision to be set aside.

[00:01:11] Speaker 00:
But respectfully, this, I believe, is one of those cases because it represents the kind of circular or tautological reasoning that should be avoided and that the court should not allow.

[00:01:26] Speaker 00:
There is a nexus analysis that's required in these types of cases, and that wasn't done here.

[00:01:31] Speaker 00:
The standard is not simply, oh, there are criminal charges pending against this federal employee, and that's the end of the story.

[00:01:39] Speaker 00:
That isn't the end of the story.

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The agency has to prove a nexus between the efficiency of the service and the alleged crime.

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That didn't happen here.

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There was no connection articulated between the alleged offenses and Mr. Cooper's job.

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other than simply stating in a conclusory manner that he occupies a position of trust.

[00:02:00] Speaker 00:
Arguably, every federal employee occupies a position of trust.

[00:02:05] Speaker 03:
Other cases... How far does the agency have to go in explaining Nexus when an employee has been charged with firearms charges?

[00:02:14] Speaker 03:
I mean, the Nexus seems pretty much apparent given the difficulties with firearms issues and employee workplace violence.

[00:02:24] Speaker 00:
When the conduct happens off duty and no one's hurt, it's not considered an egregious on its face.

[00:02:31] Speaker 00:
Other cases do a better job of actually making the connections and connecting the dots.

[00:02:36] Speaker 03:
Well, that may well be true that the agency deciding official can write a better decision.

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But we're not here to do a check on whether they've written the best decision, but whether it's just sufficient.

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And the board found that there was substantial evidence to show that both he was reasonably suspected of committing a crime and that there was a nexus to his service.

[00:03:04] Speaker 00:
But the board does it in a very tautological way.

[00:03:08] Speaker 00:
First of all, the board admitted that it was actually concerned that the deciding official had expressed that he did not take into account the nature of the conduct as being off duty at all.

[00:03:21] Speaker 00:
The judge, the administrative judge, expressed concern with that.

[00:03:25] Speaker 03:
Sure, but that's why we have an independent MSPB that can do a de novo review of the basis for the charges and determine, as an independent fact finder, whether they're supported or not.

[00:03:39] Speaker 00:
Well, respectfully, it's done insufficiently.

[00:03:42] Speaker 00:
It's simply a listing of Mr. Cooper's position description and then saying, again, in a tautological fashion,

[00:03:52] Speaker 00:
The deciding officials' loss of trust justified by the criminal charges justifies a finding of nexus.

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That's just saying that loss of trust because of the existence of criminal charges is enough.

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And I don't think it is.

[00:04:05] Speaker 03:
Why isn't that enough?

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Because every federal... I mean, if you were a federal manager and you know one of your employees had been indicted on weapons charges,

[00:04:15] Speaker 00:
wouldn't you want them out of the office because you don't trust them well respectfully your honor if I'm walking on the street outside you know my house and I somebody attacks me or I perceive that and I reach into my handbag and pull out a gun and hold the attackers at bay until the police come and then I get a notice of proposed suspension from my job saying sure but in your hypothetical you're leaving out the fact that

[00:04:40] Speaker 03:
the state of Maryland indicted him on numerous weapons charges.

[00:04:44] Speaker 00:
No, I'm incorporating that into my example.

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If I hold somebody an attacker at bay until the police arrive and then the police come and they get it wrong and they arrest me because I'm the one holding the gun, which is what happened in this case,

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The indictment happens.

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I don't get to testify to the grand jury and say this was self-defense.

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I'm going to be indicted.

[00:05:07] Speaker 00:
That's what happened with my client.

[00:05:08] Speaker 00:
Only at the criminal trial does he have the opportunity to say this was self-defense and make that argument.

[00:05:14] Speaker 00:
So in my example, I hold the attackers at bay.

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The police come and arrest me because I have the gun.

[00:05:19] Speaker 00:
I get a notice from my job saying you're going to be suspended because there are these criminal charges.

[00:05:25] Speaker 00:
Respond to us.

[00:05:27] Speaker 00:
I go and I say,

[00:05:29] Speaker 00:
This was self-defense.

[00:05:31] Speaker 03:
He got the right to respond, right?

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He got to say that he was self-defense.

[00:05:34] Speaker 03:
And the agency looked at that and said, we still don't have sufficient trust to allow him to continue to perform his duties while he's under indictment.

[00:05:44] Speaker 00:
Well, the agency, what the agency said was they never considered the fact that it was off-duty.

[00:05:49] Speaker 00:
And in the suspension notice, it just- Well, that's pretty apparent, right?

[00:05:56] Speaker 01:
We had the video.

[00:05:58] Speaker 00:
I'm sorry?

[00:05:59] Speaker 01:
They had the video, right?

[00:06:00] Speaker 00:
They had the video.

[00:06:01] Speaker 01:
So it's at his home.

[00:06:03] Speaker 00:
Again, but if it happens, in my analogy, if I go in and say, this was self-defense, here's a video showing part of the incident that shows that it was self-defense, and all I did was hold these people at bay until the police came.

[00:06:14] Speaker 00:
And then I get a suspension notice, like the one my client got, that says, I reviewed everything, and because of the charges, you're still suspended, and it will promote the efficiency of the service.

[00:06:27] Speaker 00:
What happened to what I showed you?

[00:06:29] Speaker 00:
What about my self-defense?

[00:06:31] Speaker 03:
Believe you.

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This is the agency's job.

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I mean, if there was some evidence that they didn't have, or they overlooked, or it was clear that they completely just ignored, you might have a case.

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But there's no dispute.

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They had your client's response, right?

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They had the video.

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They had all the evidence about the indictment and the like.

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And they went ahead and decided, based upon all the factors,

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that they were going to suspend him for the duration of the criminal trial.

[00:07:00] Speaker 00:
But where was the articulation of why and what it has to do with my job?

[00:07:04] Speaker 03:
It's not a case like in that Dunnington case where there's a border patrol agent who is charged with sexual... I mean, if this is your case, I don't see how far you're going to get in saying that the agency has to do more than say, we don't trust you to come into work because you've been indicted on serious

[00:07:22] Speaker 00:
But then, respectfully, why isn't the existence of a criminal charge enough?

[00:07:28] Speaker 00:
Why isn't it end there?

[00:07:30] Speaker 00:
Every time there's a criminal charge for anything, arguably, it can... Well, I think it depends on the nature of the criminal charge.

[00:07:36] Speaker 03:
But again, this is not something that is potentially nonviolent or the like.

[00:07:43] Speaker 03:
This is firearms charges and assault charges, I believe, or something of the like.

[00:07:48] Speaker 03:
Whatever, I don't want to mischaracterize it.

[00:07:50] Speaker 00:
No, that's correct.

[00:07:51] Speaker 03:
But you know what I mean.

[00:07:52] Speaker 03:
you know, something that is completely unrelated to character and the ability to operate in the workplace.

[00:07:59] Speaker 04:
I think it's concerning, respectfully, Your Honor, because as you can see in the depositions of the... Does the record show anything about whether, as a part of his federal employment, he was authorized or required to carry a weapon?

[00:08:14] Speaker 00:
No, he was employed in a civilian capacity in this particular job.

[00:08:18] Speaker 00:
He was retired military, but this job was a civilian job.

[00:08:24] Speaker 04:
But there's no... That didn't require the carrying of a weapon.

[00:08:27] Speaker 00:
No.

[00:08:29] Speaker 00:
But there's never been any dispute that he had all the required permits and licenses and trainings to carry the weapon.

[00:08:37] Speaker 01:
So... One pistol he didn't have a permit, but it was grandfathered, is that right?

[00:08:42] Speaker 01:
The German one that he brought from... Yes, I believe that's the case, yes.

[00:08:47] Speaker 01:
Can I ask you a clarifying question?

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You've referred, as does Appendix 669, to a criminal indictment.

[00:08:54] Speaker 00:
Was there actually a grand jury, or was this... So there was a grand jury indictment, but the agency wasn't aware... I mean, the order of events was this.

[00:09:02] Speaker 00:
There was a notice of proposed suspension issued before the indictment.

[00:09:06] Speaker 00:
Then there was an indictment.

[00:09:08] Speaker 00:
Then the agency issued the final notice.

[00:09:10] Speaker 00:
the final decision, but there was never any appreciation of the indictment.

[00:09:14] Speaker 00:
The deciding officials never took into account the fact that there was an indictment.

[00:09:19] Speaker 00:
They never uttered the word indictment.

[00:09:21] Speaker 04:
It is true that there was a criminal... But they were aware that there had been a probable cause determination when he was charged with these offenses, right?

[00:09:30] Speaker 00:
But it's very problematic, and I know that the Henderson case exists.

[00:09:33] Speaker 00:
I think it's a problem because

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an accused doesn't testify before the grand jury.

[00:09:39] Speaker 00:
The grand jury is going to indict, but it doesn't protect my client at all or me in the hypothetical scenario when I'm arguing that the police have gotten it wrong.

[00:09:49] Speaker 00:
And in this case, the administrative judge recognized that there were very serious discrepancies between what the crime report said occurred and what the video showed occurred.

[00:09:58] Speaker 00:
The judge said that.

[00:10:00] Speaker 01:
But there was, in this case, some kind of judicial look or independent look at evidence, not just, do we have the man who is, you know, are you Mr. Cooper?

[00:10:19] Speaker 00:
I don't really think there's much of a difference from being arrested.

[00:10:23] Speaker 01:
Interestingly, I thought our case law is pretty clear that

[00:10:28] Speaker 01:
Arrest is not enough.

[00:10:30] Speaker 01:
Dunnington says indictment is, even though, as you say, indictments quite commonly occur without the defense getting to supply information.

[00:10:41] Speaker 01:
I've actually not been fully aware that there was an indictment here, but I was sort of going to ask you.

[00:10:47] Speaker 00:
Neither was the agency until after the fact.

[00:10:49] Speaker 01:
But there was some kind of, I think what Judge Dyke referred to as a

[00:10:55] Speaker 01:
probable cause determination during the, what was he, he was, he was being held for two weeks, close to two weeks before he was released?

[00:11:03] Speaker 01:
Yes.

[00:11:03] Speaker 01:
Right.

[00:11:04] Speaker 01:
So, um, and, and the charges here were a couple of reckless endangerments, um, assault, uh, first degree and second degree assault plus the disobedience to the police officers, which the deciding officials said he more or less was discounting because

[00:11:21] Speaker 01:
that just didn't happen.

[00:11:24] Speaker 01:
And the video supports that view.

[00:11:26] Speaker 01:
And that's the charge on which the judge in the criminal trial granted judgment of acquittal, right?

[00:11:32] Speaker 01:
I think it was charge number eight.

[00:11:35] Speaker 01:
Yes, that's correct.

[00:11:37] Speaker 01:
But all of these charges, as I think Judge Hughes was saying, involved on their face a potential for harm to life.

[00:11:50] Speaker 01:
Why isn't that enough for the agency to proceed and say not only is there reasonable cause for criminal conduct that carries a possibility to imprisonment, but also that indefinite suspension, while that is being decided, advances the efficiency of the service?

[00:12:16] Speaker 01:
And leaving to the criminal process

[00:12:19] Speaker 01:
the questions about intent and the surrounding circumstances, which, as Dunnington explains, it's not a great idea for the agency to be required to get too far into.

[00:12:36] Speaker 00:
Of course, that would not be a good idea to do a full-blown investigation.

[00:12:41] Speaker 00:
But what I would like to see, and what I wish occurred in this case and in every case, is an actual analysis.

[00:12:47] Speaker 00:
In other words, an awareness of what the standards are, going through and saying, OK, well, this was off-duty misconduct, but for these reasons, I didn't believe you at some part of what you said.

[00:12:58] Speaker 00:
That didn't happen here.

[00:12:59] Speaker 00:
There was no analysis, probably because the agency didn't know that they had to do one, didn't know that they had to say, OK, this conduct was off-duty.

[00:13:09] Speaker 00:
So here are the four ways that off-duty misconduct can lead to an indefinite suspension.

[00:13:15] Speaker 00:
None of that happened.

[00:13:16] Speaker 00:
And I think it's very concerning.

[00:13:18] Speaker 00:
The proposing official was her first instance with discipline.

[00:13:23] Speaker 00:
The deciding official, I think he said it was maybe his only instance of discipline.

[00:13:27] Speaker 00:
And he also admitted, as the judge pointed out, that he didn't know about this off-duty thing.

[00:13:32] Speaker 00:
There's this reference over and over again

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in this case and with the deciding official's testimony to the crime provision.

[00:13:40] Speaker 00:
There's a misconception, I think, that the crime provision allows just when there's an arrest and charges that that's the end of the story without a nexus.

[00:13:51] Speaker 00:
But there's usually a nexus analysis done.

[00:13:56] Speaker 00:
And it's usually better than the one that the administrative judge included, where he just listed the position description, which I thought was rather unremarkable.

[00:14:04] Speaker 00:
It's usually something more tailored.

[00:14:06] Speaker 00:
Something like, like I said in that Dunnington case, where there's like a border patrol agent who's charged with sexual misconduct of a child.

[00:14:13] Speaker 00:
And they actually go and they say, OK, well, this border patrol agent necessarily has to be alone with women and children.

[00:14:18] Speaker 00:
For that reason, there's a link.

[00:14:22] Speaker 00:
But to just generalize and say, well, this is a position of trust, as are all federal jobs, I don't think it gets us there.

[00:14:31] Speaker 00:
I don't think it's enough.

[00:14:32] Speaker 04:
You want to save the rest of your time for the bottom?

[00:14:35] Speaker 00:
Yes, thank you.

[00:14:41] Speaker 02:
Mr. Yale.

[00:14:44] Speaker 02:
May it please the court.

[00:14:45] Speaker 02:
I would first like to address the issue of the reasonable cause.

[00:14:49] Speaker 02:
So a lot of petitioners' brief relies upon an assertion that it was based solely on the arrest.

[00:14:56] Speaker 02:
I mean, that's plainly not accurate.

[00:14:59] Speaker 02:
There was, on October 26, probable.

[00:15:02] Speaker 01:
Almost the entire argument this morning was focused on something else, namely the thinness

[00:15:10] Speaker 01:
of the explanation, at the time at least, of why suspension was in advance the efficiency of the service and was otherwise a reasonable penalty.

[00:15:24] Speaker 01:
Can you address that?

[00:15:25] Speaker 01:
Because Mr. who is a deciding official, I forget his name.

[00:15:29] Speaker 01:
Mr. Davis.

[00:15:30] Speaker 01:
Mr. Davis, right.

[00:15:33] Speaker 01:
Seemed to acknowledge in his testimony that

[00:15:36] Speaker 01:
He wasn't even aware that he had a choice about what to do once he concluded that the threshold of reasonable cause for an imprisonable crime was committed.

[00:15:51] Speaker 02:
Well, as the administrative judge pointed out, I mean, there's certainly no, the word nexus is not used.

[00:15:57] Speaker 02:
But the final decision does use efficiency of the service

[00:16:01] Speaker 01:
But it's a sentence without an explanation at that point.

[00:16:08] Speaker 01:
And then he goes to the Douglas Factors, which are in fact related, of course.

[00:16:13] Speaker 02:
Well, and the Douglas Factor analysis, which was asked about at the deposition, that was incorporated.

[00:16:21] Speaker 02:
When he was asked at the deposition what he was relying upon, in part, he said the Douglas Factors.

[00:16:25] Speaker 02:
If you look at the Douglas Factors checklist,

[00:16:28] Speaker 02:
It mentions the fact that in his position, it's a position of trust.

[00:16:32] Speaker 02:
And so I think it's not simply the fact that there needs to be a statement nexus and then an additional analysis.

[00:16:44] Speaker 02:
Could there have been more said in the final notice?

[00:16:48] Speaker 02:
I think sure, but that's not what is being reviewed here.

[00:16:51] Speaker 02:
I mean, it's a substantial evidence standard.

[00:16:53] Speaker 02:
And what we have here is,

[00:16:57] Speaker 02:
a situation where there are serious criminal charges.

[00:17:01] Speaker 02:
We have the state of Maryland bringing an independent judicial officer finding probable cause on 11 out of 12 criminal charges.

[00:17:11] Speaker 02:
And the fact even that this went in front of the circuit court, I mean, who deals with felonies.

[00:17:19] Speaker 02:
So I think all of this, as the administrative judge recognized, certainly lends

[00:17:26] Speaker 02:
evidence to the fact that the agency felt a loss of trust at that point in time.

[00:17:32] Speaker 04:
Why is it that he wasn't subjected to removal proceedings after the criminal acquittal?

[00:17:40] Speaker 02:
After the criminal acquittal?

[00:17:41] Speaker 02:
Well, I think that could always have been a possibility.

[00:17:44] Speaker 02:
I don't personally have transparency into why or why not they didn't proceed forward.

[00:17:50] Speaker 04:
I'm just wondering what the agency policy is here.

[00:17:53] Speaker 04:
sort of to just automatically follow what happens with the disposition of the criminal charge, or is there an effort to look at it with an independent investigation?

[00:18:07] Speaker 02:
Well, I think that there have been cases, and I'm not particularly pointing to army cases, but there have been cases, given the differentiation between the burdens of proof in a criminal case versus what we're talking about here, where somebody could

[00:18:21] Speaker 02:
have been found not guilty, and the agency can still go forward with a removal procedure.

[00:18:24] Speaker 04:
But something might also be irresponsible, even if it's not criminal.

[00:18:29] Speaker 02:
Correct.

[00:18:29] Speaker 02:
And for example, maybe there could be something that implicates security clearance, or a bunch of other things that could come out of a criminal trial that the agency could then look at.

[00:18:42] Speaker 02:
As to here, the decision- Well, what's the agency policy about?

[00:18:46] Speaker 02:
I'm not aware of a specific policy or regulation that would affect that particular decision, but that's not, as you're aware, that's not the decision actually at issue here.

[00:18:59] Speaker 02:
He was found not guilty on most of these charges.

[00:19:04] Speaker 02:
There was one that was declined to be prosecuted at that point.

[00:19:08] Speaker 02:
The decision was made to

[00:19:10] Speaker 02:
pretty quickly bring him back into his employment.

[00:19:13] Speaker 02:
There's been no assertion that that wasn't made promptly.

[00:19:19] Speaker 02:
But as to the decision here, as to the indefinite suspension, I think the system really worked here when you look at it.

[00:19:29] Speaker 02:
I mean, the agency had serious concerns about these criminal charges.

[00:19:34] Speaker 02:
They gave the notice.

[00:19:40] Speaker 02:
They provided two written responses.

[00:19:43] Speaker 02:
They provided an oral meeting in person.

[00:19:46] Speaker 02:
And even though the initial notice said that only seven days notice could be provided, because he was incarcerated that period of time, in reality, he was given approximately 36 days of notice before this final decision was made.

[00:20:04] Speaker 02:
So I think just based upon all of the evidence in the record.

[00:20:07] Speaker 04:
They're not arguing the 30-day notice provision, are they?

[00:20:10] Speaker 02:
Nobody is arguing the 30-day notice provision, but in the briefs, part of the argument has been some sort of rush to judgment that all the agency is doing is looking at the mere fact of an arrest.

[00:20:21] Speaker 02:
And we think that when you look at all of the evidence and the fact that the agency has met with the individual and person, reviewed two written statements, I think that certainly counters the point that there's been any sort of rush to judgment in this particular case.

[00:20:37] Speaker 02:
We might add, in addition to the probable cause determination, there was actually, in this case, a grand jury indictment on 1119.

[00:20:48] Speaker 02:
We've pointed to that in our brief.

[00:20:51] Speaker 02:
So again, we have both an independent judicial officer providing probable cause determinations on 11 of the 12 charges, but then, even before the final decision, a grand jury indictment.

[00:21:06] Speaker 02:
Now, I think it's probably correct that the record's not clear whether or not the agency was aware, particularly of this superseding criminal indictment in the Circuit Court.

[00:21:19] Speaker 02:
But again, it certainly counters the notion that there's been any sort of rush to judgment or that there was no probable cause at the time.

[00:21:26] Speaker 04:
I don't know how we can take the indictment into account unless the agency was aware of it.

[00:21:31] Speaker 04:
But we do have the probable cause finding

[00:21:34] Speaker 04:
Why the courts in bringing the charges?

[00:21:37] Speaker 02:
Well, the reason why we're mentioning the indictment, you can imagine a situation where there has been a notice, there's been probable cause findings, and it goes to, for example, in this case, if it had gone to a grand jury and there was actually a no bill.

[00:21:54] Speaker 02:
I mean, that didn't happen in this case.

[00:21:56] Speaker 02:
The case proceeded further.

[00:21:59] Speaker 02:
than what we have here.

[00:22:01] Speaker 02:
So I'm certainly, I'm just pointing it out to the fact that it's not as if in between when the notice happened and the final decision was made, the state of Maryland somehow decided that there actually was no probable cause at that point in time.

[00:22:16] Speaker 02:
And if there's no further questions, we ask to affirm the judgment of the MSPB.

[00:22:24] Speaker 02:
Okay, Ms.

[00:22:25] Speaker 02:
Blixson.

[00:22:29] Speaker 00:
May it please the court, just briefly, Your Honors.

[00:22:34] Speaker 00:
The grand jury never sees the video and never hears that there's a complete defense.

[00:22:39] Speaker 04:
Why are we talking about the grand jury?

[00:22:41] Speaker 00:
Well, I was just responding to what my friend was offering.

[00:22:44] Speaker 04:
The record on Shelley Agency was aware that there was a grand jury.

[00:22:47] Speaker 00:
Right.

[00:22:49] Speaker 00:
Yes, and I'll just end with the idea that we don't want these notices, notices of proposed suspensions or

[00:22:59] Speaker 00:
final decision notices to be like boilerplate notices that just use certain buzzwords like they just say promote the efficiency of the service or they say the words Douglas Factors.

[00:23:09] Speaker 00:
We don't want to have that type of situation because we're not looking at each situation case by case and it denies federal employees the minimum due process that they're entitled to.

[00:23:20] Speaker 00:
But if you look at these notices there's some cunning and pasting from the crime report but there's nothing tailored to the individual situation at play here.

[00:23:28] Speaker 00:
There needs to be something more than just, well, they use the words failure to promote the efficiency of the service, or the words Douglas Factors were said.

[00:23:37] Speaker 00:
We shouldn't be having on our computers just boilerplate documents and we just change the name of the employee.

[00:23:44] Speaker 00:
There needs to be an individualized analysis and that's the main argument that we have.

[00:23:52] Speaker 04:
Okay, thank you.

[00:23:53] Speaker 04:
Thank Bob Council.

[00:23:53] Speaker 04:
The case is submitted.

[00:23:54] Speaker 04:
That concludes our session for this morning.

[00:23:58] Speaker 04:
All rise.