[00:00:07] Speaker 03:
comments upon

[00:00:36] Speaker 02:
Next case is Hector Gonzalez Pagan versus the MSPB, 2018, 1572.

[00:00:52] Speaker 02:
Mr. Rodriguez.

[00:00:57] Speaker 04:
May I request to change the location of argument, the time?

[00:01:06] Speaker 02:
You have up to 15 minutes.

[00:01:09] Speaker 02:
You can break it up any way you like.

[00:01:10] Speaker 04:
We like to split it equally.

[00:01:13] Speaker 02:
That's fine.

[00:01:13] Speaker 02:
Just stop talking at seven and a half minutes.

[00:01:17] Speaker 04:
Yes, Your Honor.

[00:01:18] Speaker 04:
Basically, Your Honor, this is a case that was dismissed, summarily, before any motion was so respondent or reprobate by the administrative judge of the MSPB.

[00:01:35] Speaker 04:
We emphasize on giving the judge the procedures before.

[00:01:44] Speaker 03:
Did you ever make an allegation to the MSPB that the VA had knowledge of Mr. Gonzalez Pagan's military service?

[00:01:52] Speaker 03:
Yes, Your Honor.

[00:01:53] Speaker 04:
Where did you make that allegation?

[00:01:55] Speaker 04:
We submitted the complete decision of the lower court, the copy of the complaint, and the sworn statement from Mr. Gonzalez.

[00:02:05] Speaker 02:
But knowledge isn't enough.

[00:02:06] Speaker 02:
Do you have evidence that that was a factor and is not being hired?

[00:02:14] Speaker 04:
In the allegations we put out, it was a unique case.

[00:02:22] Speaker 04:
In the lower court, it didn't go through discovery.

[00:02:25] Speaker 04:
The government didn't produce any discovery.

[00:02:26] Speaker 04:
So we finally go from answering an interrogatory to receiving an answer to an interrogatory.

[00:02:33] Speaker 04:
directly to trial.

[00:02:34] Speaker 01:
Yeah, but it's your burden to present a non-frivolous allegation of nexus.

[00:02:42] Speaker 04:
In the allegations, it was included that 14 employees were hired.

[00:02:52] Speaker 04:
Majority of them, after he was denied that job,

[00:02:57] Speaker 04:
And out of the 14, none was a member of the military.

[00:03:01] Speaker 01:
He was the only one.

[00:03:02] Speaker 01:
But that doesn't necessarily mean there was some animus here based on his military service.

[00:03:10] Speaker 04:
Yes, Your Honor.

[00:03:11] Speaker 04:
It was Malaysia that he was prepared.

[00:03:13] Speaker 04:
He was actually hired.

[00:03:15] Speaker 04:
The reason for not hiring was a matter of not being at the position.

[00:03:20] Speaker 02:
Was he hired or was he invited to be a candidate?

[00:03:24] Speaker 04:
He received the invitation for filling all the documents.

[00:03:29] Speaker 04:
Once he completed the filing of all the documents, he was in the process of being sworn in and getting his credentials.

[00:03:37] Speaker 04:
That's when everything stopped.

[00:03:39] Speaker 04:
After he submitted all the documents and he went through getting his security clearance.

[00:03:46] Speaker 04:
And they said that he was not hired because the position was vacated.

[00:03:51] Speaker 04:
But then they hired 14 people after, actually 19.

[00:03:58] Speaker 04:
But none of them were in the military.

[00:04:01] Speaker 04:
And he was not even offered the position.

[00:04:04] Speaker 04:
And he was hired and he applied before them.

[00:04:07] Speaker 04:
So basically, in terms of time, he was before them.

[00:04:13] Speaker 04:
So he should be.

[00:04:15] Speaker 04:
asked to come and decline the position.

[00:04:19] Speaker 03:
Are you asking for an inference that when the federal government hires non-veterans that they have an anti-military bias?

[00:04:30] Speaker 04:
Well, actually, he wasn't a veteran.

[00:04:32] Speaker 04:
He was a veteran, but he was on the reserve.

[00:04:34] Speaker 04:
He was an active duty.

[00:04:35] Speaker 04:
He was an active reservist.

[00:04:38] Speaker 03:
OK.

[00:04:38] Speaker 03:
So are you asking for an inference that when the government hires

[00:04:43] Speaker 03:
non-service members.

[00:04:46] Speaker 03:
That there's a bias against service members.

[00:04:49] Speaker 04:
In this particular case, the VA clinic of San Juan, that's the way it was.

[00:04:56] Speaker 04:
And if we take into consideration, at the point of time that the case was dismissed was basically at the initial.

[00:05:05] Speaker 04:
He just filed for it.

[00:05:07] Speaker 04:
So at the beginning of the case, he just needed to have

[00:05:10] Speaker 04:
meet the criteria for the case.

[00:05:12] Speaker 04:
The case didn't go to trial.

[00:05:13] Speaker 04:
Didn't go any discovery or anything.

[00:05:15] Speaker 04:
At the MSPB, the judge determined that he didn't meet the criteria for filing the case.

[00:05:23] Speaker 03:
He found that there was no non-frivolous allegation?

[00:05:29] Speaker 04:
Isn't that correct?

[00:05:32] Speaker 04:
Before the MSPB or before the agency?

[00:05:36] Speaker 04:
Before the MSPB.

[00:05:38] Speaker 04:
We respectfully contest that, because based on the documents that we submitted, including it was a decision from the US District Court that that was addressed by the government.

[00:05:51] Speaker 04:
And the US District Court sustained our objection and sustained the charge.

[00:05:58] Speaker 04:
But later on US, under USERVA.

[00:06:03] Speaker 04:
But it was later.

[00:06:06] Speaker 04:
agree between the parties that they form with jurisdiction is going to be the MSPB.

[00:06:15] Speaker 04:
The decision was submitted to the court with the exhibits on page 62.

[00:06:26] Speaker 04:
So that issue was already

[00:06:35] Speaker 03:
You say there's a US District Court opinion holding that there was a USERRA violation.

[00:06:43] Speaker 04:
Where is that in your effort?

[00:06:45] Speaker 04:
It's on page 62 of the appendix to the brief.

[00:06:57] Speaker 02:
Well, how does the US District Court have jurisdiction over the employment or non-employment

[00:07:05] Speaker 02:
Mr. Gonzalez.

[00:07:07] Speaker 04:
Oh, sorry, Your Honor.

[00:07:08] Speaker 02:
How does the district court have jurisdiction over this case?

[00:07:12] Speaker 02:
Oh, what happened?

[00:07:12] Speaker 04:
We filed multiple complaints before the US district court.

[00:07:19] Speaker 02:
And where does that stand now?

[00:07:21] Speaker 04:
It's still the case on the merits went to trial, and it's on appellate court right now.

[00:07:32] Speaker 02:
At an appellate court?

[00:07:34] Speaker 04:
But not the Usera case.

[00:07:35] Speaker 04:
The claim under Usera was sustained at the beginning, but it wasn't jurisdictionally proper to be addressed by the US District Court.

[00:07:48] Speaker 04:
And that one was in our body.

[00:07:53] Speaker 02:
And you're saying the district court found that there was a Usera violation here?

[00:07:59] Speaker 03:
And the answer is no.

[00:08:01] Speaker 03:
It did not.

[00:08:02] Speaker 03:
I just read what you did.

[00:08:04] Speaker 03:
pointed out, and what it is, is a motion to dismiss.

[00:08:08] Speaker 03:
And the magistrate judge held that based on the pleading of failure to state a claim under USERRA that it taken as true, there could be a USERRA claim.

[00:08:20] Speaker 03:
So the court declined to dismiss under the standards for a motion to dismiss.

[00:08:25] Speaker 04:
There wasn't a finding that there was a USERRA violation.

[00:08:28] Speaker 04:
But it wasn't dismissed.

[00:08:29] Speaker 04:
That's what it meant, that it wasn't dismissed on the district court.

[00:08:33] Speaker 04:
It was dismissed later based on the fact that the district court doesn't have jurisdiction.

[00:08:41] Speaker 04:
I don't know where that gets you.

[00:08:44] Speaker 04:
Your Honor, in the case of Weisside, a case from this honorable court where it says for filing, it's in the case of

[00:08:56] Speaker 04:
Let me see if I get the last name correctly.

[00:09:00] Speaker 04:
For initial pleadings before the MSPB, there's a criteria that we have to meet.

[00:09:05] Speaker 04:
And we met those minimum requirements for filing a case at the MSPB.

[00:09:17] Speaker 03:
How do we know from the record?

[00:09:20] Speaker 03:
Do you have the complaint that the magistrate judge

[00:09:26] Speaker 03:
declined to dismiss in the record.

[00:09:29] Speaker 04:
Yes, Your Honor, it was submitted.

[00:09:30] Speaker 03:
Where's that?

[00:09:53] Speaker 03:
Is that the complaint that starts at 14?

[00:10:01] Speaker 04:
It's the exhibit 11, page 83.

[00:10:05] Speaker 04:
The reason I have to go with all the procedures before, due to the time that this case was filed,

[00:10:13] Speaker 04:
Before the MSPB, at the time, there was different opinions between circuits about USERRA, Statute of Limitation.

[00:10:20] Speaker 04:
Fourth Circuit had four years, First Circuit didn't.

[00:10:25] Speaker 04:
So we have to go through all the different procedures before.

[00:10:30] Speaker 04:
So that's the reason we submit all these prior documents.

[00:10:35] Speaker 04:
Finally, the law changed.

[00:10:37] Speaker 04:
But the MSPB appeal is on page 83

[00:10:48] Speaker 04:
They have a format that we have to submit and a statement on page 89, base 10, 89.

[00:11:00] Speaker 02:
Counsel, you wanted to save a good deal of your time.

[00:11:03] Speaker 02:
You have five minutes left.

[00:11:04] Speaker 02:
You can continue talking or reserve it.

[00:11:09] Speaker 04:
If there's enough for a question, we'll reserve it for that.

[00:11:13] Speaker 02:
All right.

[00:11:15] Speaker 02:
Let's hear from the government.

[00:11:20] Speaker 02:
Ms.

[00:11:21] Speaker 02:
Lerner, morning.

[00:11:24] Speaker 00:
May I please the court?

[00:11:27] Speaker 00:
Excuse me.

[00:11:28] Speaker 00:
The petitioner failed to establish MSPP jurisdiction over his USERRA appeal because he did not non-privilegedly allege a connection between his military service and the agency's decision not to select him for the position.

[00:11:41] Speaker 00:
To establish MSPP jurisdiction over a USERRA appeal, petitioner must show, one, that he performed military service,

[00:11:50] Speaker 00:
Two, that he lost a right or benefit of employment.

[00:11:53] Speaker 00:
And three, that his service was a substantial or motivating factor for the loss of the right or benefit.

[00:11:59] Speaker 00:
And the administrative judge in this case properly found that although he had plausibly made a non-frivolous allegation for the first two requirements, he did not make one for the third.

[00:12:09] Speaker 00:
The administrative judge gave petitioner ample opportunity to meet his burden of making a non-frivolous allegation of jurisdiction.

[00:12:17] Speaker 00:
by issuing an eight-page jurisdictional order that explained the requirements.

[00:12:23] Speaker 02:
Well, what about these 17 people who were allegedly hired for the same position?

[00:12:29] Speaker 00:
Well, he did not actually allege those people were hired for the same position in the same location that he was applying for.

[00:12:36] Speaker 00:
He just said the agency hired 17 people during the period in which

[00:12:41] Speaker 00:
According to petitioner they were claiming that they had budget cuts and they couldn't fill his position as I recall the record he went home and a substantial period of time elapsed something in the order of years So I assume that those 14 people are hired over that period of years I believe it was months, but I'm not sure but also he never actually received an offer of employment he received a pre-offer letter and

[00:13:10] Speaker 00:
And then subsequently it's not clear exactly what happened, but the agency eventually told him that the position had been eliminated, so Is there anything in the record to suggest that the agency was aware of his military status at any point in time?

[00:13:30] Speaker 00:
Well, he does allege that

[00:13:33] Speaker 00:
He had received treatment at the VA clinic, and so they could have been aware of it through that means.

[00:13:38] Speaker 00:
Given the liberal way that USERA allegations are construed at the jurisdictional stage, the judge sort of accepted that that was plausibly alleged.

[00:13:49] Speaker 00:
And if I could just say something about the district court proceedings, the district

[00:13:57] Speaker 00:
court case that he brought alleged Title VII violations as well as a USERRA violation.

[00:14:03] Speaker 00:
The court actually dismissed the USERRA allegation without prejudice because he had not exhausted his procedures at the MSPB.

[00:14:11] Speaker 00:
So that portion of it was then heard by the MSPB.

[00:14:14] Speaker 00:
The court never made a ruling about a USERRA violation one way or the other, except to dismiss it without prejudice.

[00:14:24] Speaker 00:
The jurisdictional order that the judge issued

[00:14:27] Speaker 00:
the administrative judge issued explained the non-frivolous allegations standard and stated that conclusory or unsupported allegations would not be sufficient to meet that standard.

[00:14:36] Speaker 03:
And in response... He made an allegation somewhere in the briefs that the particular position for which he had applied

[00:14:47] Speaker 03:
was filled by somebody's relative.

[00:14:50] Speaker 03:
I don't know if it was more specific than that.

[00:14:54] Speaker 03:
Who, of course, was not in the service, according to this.

[00:14:58] Speaker 00:
Well, he didn't make any allegations regarding that person's military status at all.

[00:15:03] Speaker 00:
So he just said it was the brother of a local political candidate.

[00:15:06] Speaker 00:
So he still didn't draw a connection between the military service and the selection.

[00:15:11] Speaker 03:
But was that the position for which he

[00:15:14] Speaker 03:
Did it apply?

[00:15:15] Speaker 03:
Had it been eliminated?

[00:15:16] Speaker 03:
Was it recreated?

[00:15:17] Speaker 00:
He alleges it was the same position, but he did not supply any other evidence with regard to that.

[00:15:22] Speaker 00:
So in response to the judge's jurisdictional order, Petitioner merely reiterated the same conclusory allegations he had made in his initial pleadings and declined to provide any further evidence or argument.

[00:15:37] Speaker 00:
And I would point out that Petitioner was represented by an attorney at all stages of this proceeding as well.

[00:15:44] Speaker 00:
So Petitioner's allegations do nothing to provide the required link between his military service and the non-selection.

[00:15:51] Speaker 00:
For example, Petitioner's claim that the job he applied for was later given to the brother of a political candidate did not allege anything about that person's military status.

[00:16:04] Speaker 00:
And his claim that the agency hired 17 people during the time he was not hired also did not allege anything specific about which positions those

[00:16:13] Speaker 00:
individuals were hired for and that it was the same position that he had applied for.

[00:16:18] Speaker 00:
So these allegations are nothing more than conclusory statements and do not rise to the level of a non-frivolous allegation.

[00:16:24] Speaker 00:
So because Petitioner was given the opportunity to establish court jurisdiction over his USERRA appeal and informed of the requirements to do so, but failed to articulate a non-frivolous allegation of a USERRA violation, this appeal should be dismissed.

[00:16:42] Speaker 00:
And if there are no further questions, I will respond.

[00:16:45] Speaker 02:
Thank you, counsel.

[00:16:45] Speaker 02:
Mr. Rodriguez has some rebuttal time if he wishes.

[00:16:57] Speaker 04:
The way the apparent became aware of the situation was because he filed a FOIA.

[00:17:08] Speaker 04:
That's how he got the information.

[00:17:12] Speaker 04:
in the complaint.

[00:17:16] Speaker 04:
First, he was told that the positions were vacated.

[00:17:19] Speaker 04:
A couple of years later, he asked for a congressional inquiry.

[00:17:26] Speaker 04:
The same information came out.

[00:17:28] Speaker 04:
Then he filed for a FOIA.

[00:17:30] Speaker 04:
And he found that actually 17 employees were.

[00:17:34] Speaker 04:
Over what period of time are we talking?

[00:17:37] Speaker 04:
Within two or three years.

[00:17:39] Speaker 04:
It seemed like three years to me.

[00:17:41] Speaker 04:
Correct.

[00:17:42] Speaker 04:
So the 17 people were over the course of three years?

[00:17:47] Speaker 04:
No, two years.

[00:17:48] Speaker 04:
During those two years.

[00:17:51] Speaker 04:
Later, during trial at the district court, two other people were found that were hired.

[00:18:01] Speaker 03:
Were any of those other than somebody's brother or brother-in-law allegedly hired for the same position?

[00:18:08] Speaker 04:
Yes, Your Honor.

[00:18:09] Speaker 04:
But it came after.

[00:18:10] Speaker 04:
That information came during the trial of the US DC court.

[00:18:16] Speaker 04:
And that was in November, December.

[00:18:18] Speaker 04:
But the government says that the case was dismissed for lack of jurisdiction.

[00:18:23] Speaker 04:
Is that not?

[00:18:23] Speaker 04:
No, the Ussera case.

[00:18:25] Speaker 04:
The case went to trial.

[00:18:28] Speaker 04:
It was the Ussera and the Title VII.

[00:18:30] Speaker 04:
So other evidence came in for other claims.

[00:18:32] Speaker 04:
And that's when under the testimony, under oath before the court, it was discovered that all the people were hired for equivalent position.

[00:18:44] Speaker 02:
What's the status of the Title VII claim?

[00:18:48] Speaker 04:
The case was after the trial.

[00:18:56] Speaker 04:
It was a bench trial.

[00:18:58] Speaker 04:
And we agree on it.

[00:19:00] Speaker 04:
And it's on appeal because we did not survive that trial, based on the fact that we can provide the court the copy of the sentence.

[00:19:09] Speaker 04:
It's on appeal where?

[00:19:10] Speaker 04:
The first circuit?

[00:19:12] Speaker 04:
The first circuit, based on the evidence.

[00:19:14] Speaker 04:
One evidence is contested.

[00:19:17] Speaker 02:
The problem here is not that 17 other people were hired, but that he didn't show that he was not hired because of his military service.

[00:19:28] Speaker 04:
Correct.

[00:19:31] Speaker 04:
It can be a name.

[00:19:41] Speaker 03:
What was the military status of the politician's brother?

[00:19:46] Speaker 03:
None.

[00:19:48] Speaker 04:
I'm sorry.

[00:19:49] Speaker 04:
None.

[00:19:50] Speaker 04:
He didn't have any military.

[00:19:51] Speaker 04:
None of them.

[00:19:52] Speaker 04:
Was there evidence to that effect?

[00:19:54] Speaker 04:
Yes.

[00:19:54] Speaker 04:
All the testimony.

[00:19:55] Speaker 04:
Only he was in active military.

[00:19:59] Speaker 04:
Two were prior veterans of those 19.

[00:20:05] Speaker 04:
But it's not under veterans privileges under Rosario, which makes the difference.

[00:20:14] Speaker 04:
But basically, on page six, we mentioned the case of Lentz versus MSPB, number 2017-1285.

[00:20:29] Speaker 04:
where the court dismissal of lens two for lack of jurisdiction was done on the agency motion before he had a chance to develop the full record.

[00:20:45] Speaker 04:
And that case was at the beginning.

[00:20:46] Speaker 04:
It was under a motion to dismiss from the government.

[00:20:50] Speaker 04:
This case was just filed and has been dismissed.

[00:20:56] Speaker 04:
As is for the case to be the decision be revoked and remanded, the discovery can be actually exercised.

[00:21:03] Speaker 04:
Because this is not a really common case.

[00:21:06] Speaker 04:
Discovery was not done at the US district level.

[00:21:10] Speaker 04:
And the way it was, the information provided by the VA clinic of San Juan was completely out of the normal ways.

[00:21:18] Speaker 04:
Because after a congressional inquiry saying that they didn't hire anybody,

[00:21:22] Speaker 04:
Under the FOIA, my client found that they hired 19 people.

[00:21:27] Speaker 04:
So it has been struggling for him on finding the information.

[00:21:30] Speaker 04:
Even for the people who were in the military service, they were not admitted that information until trial.

[00:21:37] Speaker 04:
During the trial, the government admitted that none of them had an active duty in military status as a reservist.

[00:21:46] Speaker 02:
Thank you, counsel.

[00:21:47] Speaker 02:
We have your argument submitted.