[00:00:02] Speaker 05:
The next case for argument is 18-1388, Fernandez versus Armey.

[00:00:46] Speaker 05:
Good time to get settled here.

[00:00:49] Speaker 05:
We are ready whenever you are.

[00:00:53] Speaker 03:
Good morning.

[00:00:53] Speaker 03:
May it please the court, my name is Sterling DeRamos, attorney for the petitioner, Mr. Roberto Fernandez.

[00:00:59] Speaker 03:
This case involves an appeal by the petitioner of a ruling from the Merit Systems Protection Board denying the petitioner, Mr. Fernandez, of a ruling in his favor on a petition for enforcement.

[00:01:12] Speaker 04:
But you would be entitled to go back

[00:01:16] Speaker 04:
to the board, wouldn't you and say, here's this documentation which you think is necessary and please compute the amount that's owed, right?

[00:01:29] Speaker 04:
It's still open to you, right?

[00:01:32] Speaker 03:
I believe that with the decision of the administrative judge that it would not be open to us except on a court order from this court.

[00:01:39] Speaker 04:
And then we could go back.

[00:01:40] Speaker 04:
Why wouldn't it be open to you?

[00:01:42] Speaker 04:
They haven't said what the amount owed is.

[00:01:45] Speaker 04:
All they've said is you haven't negotiated in good faith.

[00:01:50] Speaker 03:
That is correct.

[00:01:51] Speaker 03:
But we would argue respectfully that we were not required to negotiate.

[00:01:54] Speaker 03:
My client won the case.

[00:01:56] Speaker 04:
I understand.

[00:01:57] Speaker 04:
But you say that's wrong.

[00:01:59] Speaker 04:
But all I'm saying is they haven't fixed on the final amount that your client is entitled to or that your client has to repay.

[00:02:08] Speaker 04:
That's still an open question, isn't it?

[00:02:10] Speaker 03:
I don't think it is better because I think by the judge's order, my client, the agency is not required to pay my client anything because she has alleged respectfully and wrongfully that my client did not participate.

[00:02:22] Speaker 04:
You don't think you can go back and say, okay, here's the information you wanted, please do the computation?

[00:02:29] Speaker 03:
Only if this court remands it to the administrative judge.

[00:02:32] Speaker 04:
Okay, but if you could go back without a remand, then it's not a final judgment, right?

[00:02:37] Speaker 03:
I believe it is a final.

[00:02:38] Speaker 03:
No, no, no.

[00:02:39] Speaker 03:
If I'm mistaken, I'm not.

[00:02:39] Speaker 04:
Let me ask you a hypothetical.

[00:02:42] Speaker 04:
If I'm right, and that the order doesn't preclude you from going back, giving them more information, and getting a resolution of the amount, you wouldn't have a final judgment here, right?

[00:02:53] Speaker 03:
That would be correct, Your Honor.

[00:02:54] Speaker 03:
That would be correct.

[00:02:55] Speaker 03:
That's absolutely right.

[00:02:56] Speaker 03:
If it was not final, we could go back and request that a final computation be done.

[00:03:02] Speaker 05:
But where do you understand things are now?

[00:03:06] Speaker 05:
The government's free, it's done, this case is over and they walk away?

[00:03:10] Speaker 03:
Yes, Your Honor, that is my understanding, that the case is done and they are free to not pay my client the back pay that we allege that he's owed.

[00:03:18] Speaker 05:
Have you ever given them a number?

[00:03:21] Speaker 05:
When you say the back pay which he's owed, they've come up even though maybe it hasn't been definitive, but I saw three numbers thrown out on the other side reviewing the history of what went down here and I didn't

[00:03:32] Speaker 03:
No, I don't believe that a number was ever given by the petitioner.

[00:03:36] Speaker 03:
He was pro se before and I didn't handle the case below, but I don't believe a number, there had been settlement negotiations, though I believe that the numbers were discussed, but I'm not familiar with exactly what those numbers were.

[00:03:47] Speaker 05:
But what was the basis for your, they put out some offers and what was the basis?

[00:03:54] Speaker 05:
This is too little money and why?

[00:03:57] Speaker 05:
I mean, was that ever discussed?

[00:03:58] Speaker 03:
Yes, sir, Your Honor.

[00:03:59] Speaker 03:
If you look on page 256 of the record,

[00:04:02] Speaker 03:
there is a spreadsheet that was provided.

[00:04:04] Speaker 03:
And that showed that apparently appellant, or petitioner, excuse me, received $8,000 more than he should have received or would have received had he been informed.

[00:04:15] Speaker 05:
And did you explain why you think that's wrong?

[00:04:17] Speaker 03:
I believe that it was discussed internally in, I think, the MAPS mediation program, yes.

[00:04:22] Speaker 03:
But I was not privy to those discussions, Your Honor, because I only got the case, unfortunately, on appeal.

[00:04:28] Speaker 03:
So I don't know exactly what happened.

[00:04:30] Speaker 03:
with my co-counsel on the matter below, whether she had those discussions.

[00:04:35] Speaker 03:
But they did have a MAPS mediation program and a meeting with a MAPS judge, a mediation program.

[00:04:42] Speaker 05:
This case is very odd to me.

[00:04:45] Speaker 05:
I mean, there were a lot of discussions, a lot of back and forth, but then a lot of stop starts.

[00:04:50] Speaker 05:
And if you think what the government was offering was wrong,

[00:04:58] Speaker 05:
Isn't it kind of up to you to tell them what's wrong with it so we can move forward on this?

[00:05:03] Speaker 05:
So they've done the calculations a certain way, and I don't really have any idea.

[00:05:08] Speaker 05:
We've gone through all of this litigation and all of these litigation costs, and I still don't know where you are on this.

[00:05:16] Speaker 03:
You're absolutely correct, Your Honor.

[00:05:17] Speaker 05:
Well, whose responsibility is that?

[00:05:20] Speaker 03:
Well, respectfully, I think it's a responsibility of the administrative judge to have conducted a proper hearing on this matter.

[00:05:27] Speaker 03:
rather than simply to issue a decision.

[00:05:28] Speaker 03:
There should have been a hearing on this matter.

[00:05:31] Speaker 03:
I don't know.

[00:05:32] Speaker 05:
The judge isn't necessarily required to sit down and force the parties to settle.

[00:05:37] Speaker 05:
That's up to the parties.

[00:05:38] Speaker 05:
And there have been discussions.

[00:05:40] Speaker 05:
And you went through mediation.

[00:05:41] Speaker 05:
Yes, ma'am.

[00:05:42] Speaker 05:
So how many more resources have to be expended?

[00:05:45] Speaker 05:
I understand this retirement stuff, and it's all fairly complex in that universe.

[00:05:51] Speaker 05:
But it's not that complex.

[00:05:54] Speaker 05:
And I don't know.

[00:05:55] Speaker 05:
You're saying this spreadsheet is inadequate, and maybe it is, and maybe it isn't.

[00:05:59] Speaker 05:
But I haven't seen where you've pointed to why it's inadequate.

[00:06:03] Speaker 05:
Are they using the wrong numbers?

[00:06:05] Speaker 05:
Are the numbers wrong?

[00:06:06] Speaker 05:
Are the categories wrong?

[00:06:08] Speaker 05:
Are the questions they're asking wrong?

[00:06:11] Speaker 05:
I don't have any idea what your view is.

[00:06:13] Speaker 05:
Exactly.

[00:06:13] Speaker 05:
And so don't you think by this time there should be some record of your view on this?

[00:06:18] Speaker 05:
I mean, how is the government supposed to proceed?

[00:06:20] Speaker 05:
I mean, your view is that they were not performing expeditiously in good faith.

[00:06:25] Speaker 05:
Well, how are they supposed to proceed if they've got no feedback from your side?

[00:06:30] Speaker 03:
Well, I think, respectfully, if they did get feedback, they did get my client's data in March of 2015, all the data necessary to make the calculation.

[00:06:38] Speaker 03:
They should have done a calculation and explained it to us first.

[00:06:41] Speaker 03:
It's their initial burden of proof.

[00:06:44] Speaker 03:
But to the extent that in the underlying petition for enforcement,

[00:06:49] Speaker 03:
I don't know what discussions were done.

[00:06:50] Speaker 03:
Those are not part of the record, and normally would not be part of the record, what discussions there were between the councils during the petition for enforcement period that would have been clearly off the record.

[00:07:01] Speaker 05:
So you had an expectation that the AJ here would sit there and decide what calculation was correct?

[00:07:07] Speaker 03:
If she had hold a hearing, I think that issue could have been addressed and should be addressed by an administrative judge, absolutely.

[00:07:16] Speaker 03:
At some point, if there's a dispute,

[00:07:18] Speaker 05:
on your petition for enforcement and say they owe us X amount of dollars and they're in violation for not have provided that.

[00:07:26] Speaker 05:
That wasn't your petition, right?

[00:07:27] Speaker 03:
But the petition was that they did not provide us with back day.

[00:07:30] Speaker 03:
So I would argue that respectfully it was.

[00:07:32] Speaker 03:
Well, our petition did not say the specific amount

[00:07:35] Speaker 03:
of back pay.

[00:07:36] Speaker 03:
Again, that's an agency determination that should be done by the agency personnel officers who have that necessary expertise.

[00:07:43] Speaker 03:
Well, haven't they done that?

[00:07:45] Speaker 05:
And your complaint is, we don't understand what they've done, so why don't you ask them to explain it?

[00:07:50] Speaker 05:
Or do you?

[00:07:52] Speaker 05:
I'm really perplexed at how things went down here.

[00:07:55] Speaker 05:
It seems like a lot of time has passed, and a lot of resources, including judicial resources, have been expended.

[00:08:03] Speaker 05:
And I don't know how this ends.

[00:08:05] Speaker 05:
And it seems to me that by this juncture, your side arguably would have had enough information to at least come forward and either complain about what the government was putting forth or come up with your own calculation.

[00:08:17] Speaker 05:
Look, you guys owe me $60,000, and here's why.

[00:08:22] Speaker 05:
And that's never been done, right?

[00:08:24] Speaker 03:
Well, I don't know if it's never been done.

[00:08:26] Speaker 03:
Again, I don't know what discussions, again, were done at the petition level.

[00:08:30] Speaker 03:
Well, it's kind of your responsibility to kind of know.

[00:08:34] Speaker 05:
If the history and experiences here is relevant to our adjudication of this issue, it's not really satisfactory for you to say, I don't know if that's done.

[00:08:46] Speaker 05:
Do you agree that should have been done?

[00:08:48] Speaker 05:
Yes, absolutely.

[00:08:49] Speaker 03:
OK.

[00:08:50] Speaker 05:
And you don't know whether your client represented or unrepresented ever did that, right?

[00:08:54] Speaker 03:
Correct, Your Honor.

[00:08:55] Speaker 03:
That is correct.

[00:08:56] Speaker 03:
OK.

[00:08:56] Speaker 05:
Can I just ask you a background question, which is just a little perplexing in my experience doing some of these cases?

[00:09:01] Speaker 05:
And that is, this is what happened in 2012.

[00:09:04] Speaker 05:
They were going to remove your client.

[00:09:08] Speaker 05:
And the same day that he was supposed to be removed, he voluntarily retired.

[00:09:12] Speaker 05:
Is that right?

[00:09:13] Speaker 03:
I believe that there was some issue along those lines.

[00:09:16] Speaker 03:
Correct.

[00:09:17] Speaker 03:
OK.

[00:09:17] Speaker 05:
Well, normally when that happens, the removal is kind of gone away.

[00:09:23] Speaker 05:
I mean, usually, if you retire, if he's... What went first?

[00:09:28] Speaker 05:
He was removed and then he retired?

[00:09:30] Speaker 05:
I mean, neither scenario makes sense to me.

[00:09:32] Speaker 05:
Either he was removed and then he retired, or he retired first and then he was removed.

[00:09:37] Speaker 05:
I don't think you can remove somebody who's already retired.

[00:09:40] Speaker 05:
I don't know.

[00:09:40] Speaker 03:
I think he was removed.

[00:09:42] Speaker 03:
I think to the effect, my understanding was he was removed.

[00:09:44] Speaker 03:
He won that appeal, and that appeal became final.

[00:09:47] Speaker 04:
I know that, but I... He was removed before he retired.

[00:09:49] Speaker 03:
I'm sorry?

[00:09:49] Speaker 04:
He was removed before he retired.

[00:09:52] Speaker 03:
Oh, that's right.

[00:09:53] Speaker 03:
I think what you're saying, the confusion might arise because he was eligible for retirement pay, Your Honor.

[00:10:00] Speaker 03:
And so he did receive retirement pay because he had enough years of experience, or enough years to be able to draw on his interest.

[00:10:09] Speaker 05:
So he was removed and then applied for retirement?

[00:10:12] Speaker 05:
Is that the same?

[00:10:13] Speaker 05:
That can be done, Your Honor.

[00:10:15] Speaker 04:
So what you're saying is that under the original order, he was supposed to be reinstated.

[00:10:20] Speaker 04:
That's correct.

[00:10:22] Speaker 04:
removed because he'd reached retirement age, but that ultimately did happen, right?

[00:10:28] Speaker 03:
Correct.

[00:10:28] Speaker 03:
He could have been removed, we argue December 30th, I say December 30th.

[00:10:32] Speaker 04:
Yeah, but in fact, he was reinstated and then removed, right?

[00:10:36] Speaker 03:
No, he was never, we argue that he was never reinstated.

[00:10:39] Speaker 03:
On what basis?

[00:10:41] Speaker 03:
Because he was ordered, the court's order, excuse me,

[00:10:44] Speaker 03:
judge's order, the administrative judge's order was to reinstatement.

[00:10:47] Speaker 04:
Yeah, but within a particular period of time, and I think the government agrees he wasn't reinstated within that time limit, but after the time limit ran, he was in fact reinstated and then retired or whatever it was.

[00:11:03] Speaker 04:
Right, in August of 2017.

[00:11:04] Speaker 04:
So what's the injury to him from the delay?

[00:11:10] Speaker 03:
Well, there could be several, respectfully.

[00:11:13] Speaker 03:
For one, during all of this time, he had bad paper on his record, which would prohibit him from applying for other federal positions.

[00:11:23] Speaker 04:
What's supposed to be done about that now?

[00:11:25] Speaker 05:
Well, I understand.

[00:11:27] Speaker 05:
Well, is there a record?

[00:11:28] Speaker 05:
I mean, your answer to Judge Dike, I think, was started with, it could.

[00:11:32] Speaker 05:
We don't deal with hypotheticals here.

[00:11:36] Speaker 05:
Did he apply for jobs and they went to the agency and the agency said he was removed from his conduct and therefore he didn't get the jobs?

[00:11:43] Speaker 05:
Is there any record that you provided to establish that?

[00:11:46] Speaker 03:
No, there's not.

[00:11:48] Speaker 03:
And you say you're absolutely correct about that, Your Honor.

[00:11:50] Speaker 03:
There wasn't any record that he tried for any other jobs.

[00:11:53] Speaker 04:
So what's the remedy and what's the injury at this point?

[00:11:57] Speaker 04:
I mean, everybody seems to agree on the fact, if I'm correct about it, that he was reinstated, but he wasn't reinstated.

[00:12:05] Speaker 04:
within the applicable time limit of the order.

[00:12:07] Speaker 04:
So how is he injured by that?

[00:12:09] Speaker 04:
What do you want the board to do?

[00:12:12] Speaker 04:
Well, there's a couple of things.

[00:12:13] Speaker 03:
Respectfully, we still don't agree, respectfully, with the date of the alleged retirement.

[00:12:18] Speaker 03:
They made it December 14th.

[00:12:19] Speaker 04:
We are two week difference.

[00:12:21] Speaker 03:
I understand.

[00:12:21] Speaker 03:
But it's still approximately $4,000 more.

[00:12:25] Speaker 03:
$24,000?

[00:12:27] Speaker 03:
No, $4,000.

[00:12:29] Speaker 03:
No, $38-something, probably.

[00:12:32] Speaker 05:
But you've got that number down pat.

[00:12:38] Speaker 05:
Part of the delay here was that the government did something that I thought was perfectly reasonable for the point of view of your client, which is if we go through rescinding the retirement and then having to restore it, there's a mess involved.

[00:12:52] Speaker 05:
So, but at the end of the day, when you resisted that, they came up with the calculation.

[00:12:58] Speaker 05:
Don't you agree that the retirement income he got offsets any back pay calculation?

[00:13:08] Speaker 03:
Certainly, to the degree that he received retirement.

[00:13:11] Speaker 05:
Okay, so we all know there are records of how much he received in retirement.

[00:13:15] Speaker 05:
That offsets whatever calculation he would be done.

[00:13:18] Speaker 05:
Do you have a number?

[00:13:19] Speaker 05:
Have you presented a number?

[00:13:21] Speaker 03:
I've looked at it the other day and then calculated a number of approximately $90,000 total, including interest.

[00:13:30] Speaker 03:
But that came from the fact that if you look on their calculations from their spreadsheet, they took into account my client's TSB withdrawals, which should not have been included.

[00:13:41] Speaker 03:
They also counted $20,000 for his Army Reserve pay in 2012.

[00:13:48] Speaker 03:
which should not have been included because he did not serve on active duty in a, um, after August 12th or I was seeing August 11th when he was removed in 2012.

[00:14:00] Speaker 03:
Um, he did not receive any kind of.

[00:14:02] Speaker 05:
It's nice that you're telling us this and you're responding.

[00:14:06] Speaker 05:
I appreciate to my questions, but you told the government that there were numerous meetings and email exchanges and even a mediator.

[00:14:16] Speaker 05:
This is what's done in mediation.

[00:14:19] Speaker 05:
Prior to today, have you ever expressed the details?

[00:14:24] Speaker 05:
I have not, Your Honor.

[00:14:26] Speaker 00:
So after the order of restoration, all that we're arguing about is what sort of muddies should have changed hands in that brief period?

[00:14:36] Speaker 03:
That would be correct pretty much.

[00:14:38] Speaker 03:
We again believe that it should be a December 30, 2014 date for the retirement, not a December 14 date for the retirement because of the issues I explained in our brief.

[00:14:48] Speaker 04:
I just want the record to be clear.

[00:14:51] Speaker 04:
Aside from that two week pay, the delay in reinstatement doesn't lead to any issue of practical significance.

[00:15:02] Speaker 03:
correct, I think, with maybe the exception, I'm not sure if it impacts his social security.

[00:15:07] Speaker 03:
And that may be an issue that I think we have to talk about.

[00:15:09] Speaker 05:
He's also receiving social security?

[00:15:12] Speaker 05:
When did he start receiving social security?

[00:15:15] Speaker 03:
It's not that he's receiving social security, but ultimately, it may impact his social security benefits if the social security payments haven't been properly qualified to social security at the time that he starts growing social security.

[00:15:29] Speaker 03:
I don't know whether he is or isn't.

[00:15:30] Speaker 03:
at this point.

[00:15:31] Speaker 05:
Okay, why don't we hear from the government?

[00:15:33] Speaker 05:
Well, I appreciate it.

[00:15:34] Speaker 05:
Thank you, Your Honor.

[00:15:44] Speaker 04:
Good morning, Your Honor.

[00:15:45] Speaker 04:
May it please the Court?

[00:15:46] Speaker 04:
So the petitioner here says you owe him money and the government says no, we don't owe you money.

[00:15:53] Speaker 04:
In fact, you owe us money.

[00:15:55] Speaker 04:
Is he able now to go back to the board

[00:15:58] Speaker 04:
and ask for a determination of that issue.

[00:16:01] Speaker 02:
I don't think he is, Your Honor, because I think that the board, under its jurisprudence, found that the petitioner has had his opportunity.

[00:16:09] Speaker 02:
He did not participate in good faith, and that the government, in that sense.

[00:16:11] Speaker 02:
And that's the end of it.

[00:16:12] Speaker 02:
So he has no remedy at this point.

[00:16:14] Speaker 02:
That's correct, Your Honor.

[00:16:18] Speaker 02:
With regards, I sort of wanted to pick up on one thing.

[00:16:21] Speaker 02:
With regards to the date of the alleged retirement, I think it is only a two-week dispute.

[00:16:28] Speaker 02:
But I think that we're solidly in the right on that one.

[00:16:31] Speaker 02:
The December 14th date is in fact the correct date.

[00:16:33] Speaker 02:
The argument essentially, and I will note that petitioner's brief doesn't address sort of the specific statute.

[00:16:40] Speaker 02:
It relies on an incorrect correspondence from the Army that uses a November 30th date, and then plaintiff goes out from that one month, 30 days, and gets to December 30th.

[00:16:53] Speaker 02:
But I will note first, again, the Army's

[00:16:56] Speaker 02:
Correspondence was incorrect.

[00:16:57] Speaker 02:
The correct date is, in fact, November 14th.

[00:16:59] Speaker 02:
But even setting that aside, even if the Army's incorrect calculation, incorrect presentation was correct, the Army is not required to keep him on the rolls for 30 days.

[00:17:09] Speaker 02:
The Army can keep him on the rolls for 30 days.

[00:17:11] Speaker 02:
And that's under 10 USC section 10 to 18A2.

[00:17:15] Speaker 02:
It speaks in a permissible amount of time, not a required amount of time.

[00:17:19] Speaker 02:
So that takes away those two weeks right there.

[00:17:23] Speaker 04:
So what was the failure to negotiate in good faith?

[00:17:27] Speaker 04:
What things did he not do that he should have done?

[00:17:32] Speaker 02:
Well, essentially, Your Honor, what happened is that in the beginning, there were some communications when he was pro se.

[00:17:38] Speaker 02:
And those tailed off right around the March time frame.

[00:17:41] Speaker 02:
March of which year?

[00:17:42] Speaker 02:
March of, let's see, the decision was... 2015?

[00:17:45] Speaker 02:
It would have been 2015, yes, Your Honor.

[00:17:48] Speaker 02:
And so those tailed off in about March 2015.

[00:17:50] Speaker 02:
And then once

[00:17:52] Speaker 02:
Looking at the record, what appears to have happened is that once the number, as you noted, there were three calculations done.

[00:17:59] Speaker 02:
The first one, we owed him a little money.

[00:18:00] Speaker 02:
The second one, he was overpaid.

[00:18:03] Speaker 02:
And then the third one, he was overpaid by a lot.

[00:18:05] Speaker 02:
It was something like $13,000, $8,000, and then $50,000.

[00:18:07] Speaker 02:
Yeah.

[00:18:08] Speaker 02:
OK.

[00:18:09] Speaker 02:
So once the $8,000 number went out there, it's that we don't owe you anything.

[00:18:16] Speaker 02:
It was retain counsel.

[00:18:17] Speaker 02:
And then once counsel got on board, essentially

[00:18:21] Speaker 02:
for whatever reason and again i understand it was this council substitute communication effectively stopped connected to you i mean it gives you the local

[00:18:29] Speaker 05:
It questions the confidence of your numbers if you jump from, I mean, you were kind of negotiating with yourself, and I appreciate that.

[00:18:37] Speaker 05:
But how do you get from, he owes you 8,000 to he owes you 50,000, and doesn't that sort of question our confidence in the numbers you've been playing with?

[00:18:46] Speaker 02:
Yes, Your Honor.

[00:18:47] Speaker 02:
I would agree that that's a big difference, and it deserves explanation.

[00:18:51] Speaker 02:
And the explanation is that essentially as more data came in, the numbers changed.

[00:18:55] Speaker 04:
But is he correct that your numbers include the TSP withdrawal?

[00:19:00] Speaker 02:
The numbers, the spreadsheet, the final number, the $50,000 spreadsheet, I believe, does include some TSP withdrawals.

[00:19:06] Speaker 02:
Well, that's wrong, isn't it?

[00:19:09] Speaker 02:
Your Honor.

[00:19:10] Speaker 02:
How many clearly?

[00:19:11] Speaker 02:
Come on.

[00:19:12] Speaker 02:
That's probably incorrect.

[00:19:13] Speaker 02:
But let's keep in mind that the spreadsheet before that still said that it was $8,000.

[00:19:17] Speaker 02:
And as Your Honors all noted, when it was before the board, Petitioner had the opportunity

[00:19:25] Speaker 02:
to go through all of these spreadsheets and say, here is a correct calculation.

[00:19:29] Speaker 02:
Here are all the ways that the government is wrong.

[00:19:32] Speaker 02:
And here is the number.

[00:19:33] Speaker 02:
And here's what should have happened.

[00:19:36] Speaker 02:
And that could have happened.

[00:19:37] Speaker 02:
But the more fundamental part is that it didn't even have to happen there.

[00:19:41] Speaker 00:
You're saying could have happened?

[00:19:42] Speaker 00:
I don't want to interrupt you.

[00:19:43] Speaker 00:
You're saying that could have happened.

[00:19:44] Speaker 00:
Are you saying it did happen?

[00:19:47] Speaker 02:
I don't know whether it happened or not, Your Honor.

[00:19:49] Speaker 02:
All I can look at is their brief.

[00:19:51] Speaker 02:
And I know that their brief in their petition for enforcement does not say,

[00:19:55] Speaker 02:
Your honor, here's what we're owed.

[00:19:56] Speaker 02:
They certainly don't set forth any number like that.

[00:20:00] Speaker 02:
No, I didn't see any numbers.

[00:20:04] Speaker 02:
My fundamental position would be it would be too late at that point, because keep in mind.

[00:20:07] Speaker 04:
But that's not the ground that the AJA refused relief.

[00:20:12] Speaker 04:
It was not their failure to submit a number, correct?

[00:20:15] Speaker 02:
That's correct, Your Honor.

[00:20:16] Speaker 02:
And that goes to my point.

[00:20:17] Speaker 02:
My more fundamental position is that it would have been too late at that point.

[00:20:22] Speaker 04:
OK, well, what is it that if it's not

[00:20:25] Speaker 04:
If the HA wasn't faulting for failure to come up with a number, what is the defect?

[00:20:31] Speaker 04:
What is it that they failed to do that they had to do?

[00:20:35] Speaker 02:
They failed to provide all the data and participate in the process with Army Council to get to a number.

[00:20:44] Speaker 02:
What data didn't they provide?

[00:20:46] Speaker 02:
The most fundamental thing is that under the statute, we have to verify whether or not there's any outside employment income.

[00:20:55] Speaker 04:
Right.

[00:20:55] Speaker 02:
And we did not have the tax returns in order to do that.

[00:21:01] Speaker 02:
Essentially, what petitioner argues is that, well, we told you we didn't have you any outside employment.

[00:21:06] Speaker 02:
And in its view, I thought they said that he didn't have the tax returns.

[00:21:13] Speaker 02:
Yes.

[00:21:14] Speaker 02:
No, Your Honor.

[00:21:15] Speaker 02:
I don't understand it to be in the record that he ever said he didn't have the tax returns.

[00:21:18] Speaker 02:
He did represent to Army counsel that I didn't have any outside employment.

[00:21:22] Speaker 04:
But again, when we transition- I thought he said that I didn't have these tax documents.

[00:21:26] Speaker 04:
Am I wrong?

[00:21:29] Speaker 02:
I know that he said he didn't have certain military orders.

[00:21:33] Speaker 02:
And I know that he said he didn't have certain things, and then he was able to produce them later.

[00:21:37] Speaker 02:
But as far as tax documents, and regardless of whether or not he had them, the more fundamental point is the fact that the Army, when it has transitioned from a sort of a settlement posture to a

[00:21:51] Speaker 02:
OK, you are forcing us to do the calculation.

[00:21:55] Speaker 02:
Once it has to do that calculation under the statute, it's not at liberty to sort of just take a petitioner's word for it that he doesn't have any outside employment.

[00:22:04] Speaker 02:
The Army needs to verify that.

[00:22:06] Speaker 02:
It needs to come to a correct amount.

[00:22:07] Speaker 04:
So where do we find in the AJ's decision the specific findings of what Mr. Fernandez failed to do that he had committed?

[00:22:19] Speaker 01:
Well, it would be appendix pages 2 and 3.

[00:22:34] Speaker 04:
So he needed 1099s that he didn't provide to them?

[00:22:39] Speaker 02:
Correct, Your Honor.

[00:22:40] Speaker 02:
On March 14, 2015, this is on appendix 3, he stated that he could not locate four

[00:22:45] Speaker 02:
$10.99 for his civil service annuity.

[00:22:47] Speaker 04:
Yeah, but that's my point about the tax stuff.

[00:22:50] Speaker 04:
He said he couldn't look.

[00:22:51] Speaker 04:
I mean, can you really deny somebody payment because he can't locate the documents?

[00:23:02] Speaker 02:
I mean, I think if they have it, I mean, I guess

[00:23:07] Speaker 02:
They're his documents.

[00:23:09] Speaker 02:
He's aware of this situation.

[00:23:15] Speaker 02:
He's been in this litigation for a long period of time.

[00:23:19] Speaker 02:
He's aware of this situation.

[00:23:21] Speaker 02:
He's aware of the opportunity for back pay.

[00:23:23] Speaker 02:
I can't think of better circumstances under which there is an obligation to keep good records.

[00:23:29] Speaker 04:
You mean he doesn't get any money because he didn't keep good records?

[00:23:32] Speaker 02:
Well, I also don't think, Your Honor, that just because you've lost one record doesn't, I mean, you can re-request a 1099.

[00:23:38] Speaker 02:
I mean, these aren't... Well, it takes time, right?

[00:23:41] Speaker 02:
Yes, Your Honor, but I mean, so somewhere in here, certainly in the March-April timeframe, his counsel could have reached out and said, look, we understand you need some additional documents.

[00:23:50] Speaker 02:
We're requesting those documents.

[00:23:52] Speaker 02:
We'd like some additional time in order to do so.

[00:23:54] Speaker 02:
But there's nothing in the record about that.

[00:23:56] Speaker 05:
Well, you answered Judge Dyken just referred to two and three.

[00:23:59] Speaker 05:
It seems to me that the basis upon which the A.J.

[00:24:03] Speaker 05:
relied, it keeps going on four and five and talks about a protracted period of non-responsiveness to the agency's inquiry.

[00:24:13] Speaker 05:
So it seemed, I read this as being more than just

[00:24:16] Speaker 05:
he didn't come up with the 1099s in a timely way.

[00:24:19] Speaker 02:
That's right, Your Honor.

[00:24:20] Speaker 02:
I mean, I view it sort of in two phases.

[00:24:22] Speaker 02:
I view, if you will, appendix two and three as sort of the settlement, right?

[00:24:26] Speaker 02:
This is pre-council.

[00:24:27] Speaker 02:
The Army's trying to say, look, we don't think we owe you anything.

[00:24:30] Speaker 02:
And the Army even says at one point, we don't think we owe you anything, but we'd like to settle this.

[00:24:35] Speaker 02:
Maybe there's a small amount that we can come to agreement on.

[00:24:38] Speaker 02:
Now, when we get to, you know, I'll delineate it by appendix four and five.

[00:24:41] Speaker 02:
When we get to appendix four and five,

[00:24:43] Speaker 02:
Now we have counsel on board, which is an odd time, admittedly, for communication to stop.

[00:24:48] Speaker 02:
But that is when substantive communication effectively stopped.

[00:24:51] Speaker 02:
The only communication on the record, and it's laid out in four and five.

[00:24:54] Speaker 04:
For how long did it stop?

[00:24:56] Speaker 02:
Substantive communication stopped for about eight months.

[00:24:59] Speaker 02:
The only communication that occurred was communication regarding scheduling times to talk.

[00:25:04] Speaker 02:
But again, on this record, it's unclear whether or not those conversations ever took place.

[00:25:12] Speaker 02:
The record seems to suggest that they did not.

[00:25:19] Speaker 02:
So with that, Your Honor, I believe I've touched on the failure to cooperate in good faith.

[00:25:35] Speaker 02:
I've touched on

[00:25:38] Speaker 02:
the reinstatement issue, barring any additional questions from the court.

[00:25:42] Speaker 02:
For all these reasons and those presented in our response brief, we respectfully ask this court to affirm the decision of the Merit Systems Protection Board.

[00:25:59] Speaker 03:
I'm just to touch base real quickly on some of the issues raised with respect to the failure to provide the documents.

[00:26:07] Speaker 03:
My client respectfully did provide

[00:26:09] Speaker 03:
all of his 1099s, all of his military orders that he had available.

[00:26:13] Speaker 03:
But it's also important to know.

[00:26:14] Speaker 05:
Well, do you have any answer for this period?

[00:26:16] Speaker 05:
It was almost a year, at least almost a year, where there was really non-response.

[00:26:20] Speaker 05:
The AJ lays it out on pages four or five of her opinion.

[00:26:26] Speaker 03:
I wasn't part of that.

[00:26:28] Speaker 05:
My understanding is that- I thought that was after you were hired.

[00:26:32] Speaker 05:
No, ma'am.

[00:26:33] Speaker 03:
I was only hired once this appeal was filed.

[00:26:35] Speaker 03:
You're on.

[00:26:36] Speaker 05:
Oh, well, didn't he have counsel?

[00:26:38] Speaker 03:
He did have counsel.

[00:26:38] Speaker 03:
Oh, so it was just another counsel.

[00:26:40] Speaker 03:
OK.

[00:26:40] Speaker 03:
Correct.

[00:26:42] Speaker 03:
I've been talking to her.

[00:26:44] Speaker 03:
She informed me recently that she did have telephone conversations with them during this time period.

[00:26:51] Speaker 04:
That's all very interesting.

[00:26:53] Speaker 04:
We've got to deal with the record as it is here.

[00:26:55] Speaker 04:
Yes, sir.

[00:26:56] Speaker 04:
And what does the record show about this alleged eight-month delay?

[00:27:02] Speaker 03:
It doesn't show anything.

[00:27:04] Speaker 03:
It doesn't show why exactly it happened, which is another issue.

[00:27:07] Speaker 05:
Well, it shows that the government took these initiatives and that the appellant and through counsel was unresponsive.

[00:27:17] Speaker 03:
Well, I don't think respectfully it shows why she was allegedly unresponsive or whether she had phone calls with the agency counsel as a result.

[00:27:24] Speaker 03:
That is not in the record.

[00:27:25] Speaker 03:
And I don't know whether that is just not clear.

[00:27:28] Speaker 03:
I don't want to argue outside the record, as Your Honor correctly pointed out.

[00:27:33] Speaker 03:
But that probably should have been something that should have been part of a hearing to determine them.

[00:27:39] Speaker 03:
Again, there was never a hearing on this matter to determine the specific act.

[00:27:42] Speaker 03:
Was there a request for a hearing?

[00:27:43] Speaker 03:
I believe there was in the initial appeal on the petition for enforcement.

[00:27:48] Speaker 03:
I can check again, but maybe I don't want to misspeak on that.

[00:27:52] Speaker 03:
But I believe that that's exactly what the petition for enforcement, I know that that's typically involved petitions for enforcement that we file, that we request for a hearing.

[00:28:00] Speaker 03:
So there should have been a hearing, respectfully.

[00:28:04] Speaker 03:
not simply a decision from really on the record, which the record respectfully was undeveloped.

[00:28:09] Speaker 03:
And as a result, you have all of these questions that I can't answer because I'm going off the record that's inappropriate.

[00:28:16] Speaker 03:
That's absolutely correct.

[00:28:18] Speaker 03:
It should have been on the record.

[00:28:19] Speaker 03:
That stuff should have been preserved.

[00:28:20] Speaker 05:
Well, do you know whether there was a request?

[00:28:22] Speaker 05:
I mean, are you suggesting that when you file something, they ask for whether you want a hearing or not and you check the box?

[00:28:27] Speaker 05:
Are you sure you check the box or was there a formal request for a hearing?

[00:28:31] Speaker 05:
And you don't know that?

[00:28:32] Speaker 05:
Do you know if anything in that regard is included in this record?

[00:28:36] Speaker 03:
I don't know, Your Honor.

[00:28:37] Speaker 05:
I'm sorry.

[00:28:38] Speaker 05:
OK.

[00:28:38] Speaker 05:
But how are you coming here and telling us that, at a minimum, there should have been a hearing where you don't even know whether or not the Council of Record asked for a hearing?

[00:28:47] Speaker 05:
Well, I apologize, Your Honor.

[00:28:48] Speaker 05:
I should have checked that before.

[00:28:49] Speaker 03:
But I don't see in the record where the hearing request is.

[00:29:01] Speaker 05:
All right, any further comments?

[00:29:04] Speaker 05:
We need to move on, so.

[00:29:06] Speaker 03:
I understand, Your Honor.

[00:29:18] Speaker 03:
Apologies.

[00:29:18] Speaker 03:
Thank you, Your Honor.

[00:29:19] Speaker 05:
Do you have a final comment?

[00:29:21] Speaker 03:
No final comment, other than we ask for a reversal and a remand to the administrative judge.

[00:29:25] Speaker 03:
Thank you, Your Honor.

[00:29:26] Speaker 03:
Thank you.

[00:29:27] Speaker 03:
We thank both sides.

[00:29:28] Speaker 03:
The case is submitted.

[00:29:29] Speaker 05:
That concludes our proceeding.

[00:29:30] Speaker 04:
Hold on.

[00:29:32] Speaker 04:
If you look at page 59 here, there's a question, do you want a hearing?

[00:29:39] Speaker 04:
And as I understand, the box is checking out.

[00:29:46] Speaker 03:
You are correct, Your Honor.

[00:29:47] Speaker 03:
It is checking out.

[00:29:48] Speaker 03:
I see it now.

[00:29:49] Speaker 03:
Thank you.

[00:29:50] Speaker 03:
My apologies for that.

[00:29:51] Speaker 03:
I apologize.

[00:29:54] Speaker 05:
Thank you.

[00:29:54] Speaker 05:
We thank both sides in the case to submit.