[00:00:00] Speaker 02:
9 Hayden versus Air Force.

[00:01:21] Speaker 02:
Good morning.

[00:01:22] Speaker 04:
Good morning, Your Honor.

[00:01:22] Speaker 04:
Stephen Smith for the petitioner, Carl D. Hayden.

[00:01:26] Speaker 04:
May it please the court.

[00:01:28] Speaker 04:
Make no mistake.

[00:01:29] Speaker 04:
The Air Force discriminated against Mr. Hayden when it canceled his position upgrade request in 2012 while he was serving his country in the Air Force.

[00:01:39] Speaker 02:
But that's not the issue before us, correct?

[00:01:41] Speaker 04:
Agreed, Your Honor.

[00:01:43] Speaker 04:
Because of that discrimination, the burden then shifted back to the Air Force to prove that it would have canceled his position upgrade

[00:01:50] Speaker 04:
for valid reasons standing alone.

[00:01:53] Speaker 04:
But that's not what happened here.

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The decision to cancel Mr. Hayden's position upgrade.

[00:01:59] Speaker 02:
I don't know if there's any dispute.

[00:02:01] Speaker 02:
Is it canceling the upgrade or not proceeding with the upgrade?

[00:02:06] Speaker 02:
Was there an official cancellation because this hadn't gone through a proceeding yet, right?

[00:02:11] Speaker 04:
The upgrade was canceled, Your Honor.

[00:02:15] Speaker 04:
And that was not the result of a reasoned judgment by the Air Force.

[00:02:18] Speaker 04:
It was not the result of considering the composition of the protocol office or the position upgrade itself.

[00:02:25] Speaker 04:
But it was due to the fact that he was not available for military service.

[00:02:29] Speaker 02:
Yeah, but again, I understand the background of this case, but that's not the issue before us.

[00:02:36] Speaker 02:
What is your view as a question before us?

[00:02:38] Speaker 04:
Well, respectfully, Your Honor, I think that's very important here, because the MSPB and the Air Force are then left

[00:02:44] Speaker 04:
to recreate history and effect, to create after the fact justifications and speculations and assumptions.

[00:02:50] Speaker 02:
But isn't what, are you objecting to that?

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Isn't that what the law contemplates?

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Or are you kind of saying that no, they can't, unless they did it beforehand, they can't do it hypothetically now?

[00:03:03] Speaker 04:
I believe that they have to show some evidence that the Air Force would have actually canceled this promotion for valid reasons.

[00:03:10] Speaker 04:
If there is no evidence in the record, as I submit is the case here,

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that they were actually in the process of considering his request, of comparing him to other individuals in the protocol office, or actually competing the position itself, the rest of this can't suffice to show that they would have taken the adverse action, only that there was the possibility that they may have taken the adverse action, which is not sufficient to meet their burden, Your Honor.

[00:03:40] Speaker 04:
Further, the MSPB's decision

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in addition to relying on speculation and assumptions, make several errors of law.

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The first being that Mr. Hayden was not, in fact, required to compete for the position upgrade.

[00:03:55] Speaker 04:
First of all, Air Force Manual Rule 20 provides, and as does the appropriate OPM regulation, that Mr. Hayden was, in fact, eligible for a non-competitive promotion.

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The MSPB determined that Mr. Hayden's promotion was governed under Rule 21 based on the

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the fact that there was allegedly another GS-11 person in a similar or identical position.

[00:04:20] Speaker 02:
So maybe I'm misunderstanding and confusing this with another case.

[00:04:23] Speaker 02:
I thought on remand the question was whether or not this position, this upgrade, had to undergo a competitive kind of proceeding.

[00:04:31] Speaker 04:
It is, Your Honor.

[00:04:32] Speaker 02:
Is that the right answer?

[00:04:33] Speaker 02:
And then the agency concluded that it did.

[00:04:38] Speaker 04:
Under Air Force rule 21.

[00:04:40] Speaker 04:
That's correct.

[00:04:40] Speaker 02:
All right.

[00:04:41] Speaker 02:
So you are challenging the fact that what you say that regulation does not allow for competitive examination.

[00:04:53] Speaker 04:
Two separate issues here, Your Honor.

[00:04:55] Speaker 04:
The first is that Mr. Hayden was entitled to a non-competitive promotion under Air Force Manual Rule 20.

[00:05:01] Speaker 02:
Okay, so you're saying the government misconstrued, the Air Force misconstrued, and they should not have authority, or this was not the type of position that should have, or it may have been held competitively.

[00:05:11] Speaker 04:
Correct, Your Honor, and that even if it were assessed under Rule 21, that the subsidiary facts, one, that there was another individual in a similar, identical position,

[00:05:22] Speaker 04:
And secondly, that that individual could have been assigned those duties both was incorrect as a matter of law and not supported by substantial evidence.

[00:05:32] Speaker 04:
How so?

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The first being that she was in a separate flight test with separate duties.

[00:05:36] Speaker 03:
Is this second argument, does it rely on your interpretation of similar or identical positions requiring the same supervisor?

[00:05:44] Speaker 04:
It does, on the legal side, and I would also submit, Your Honor, that there was just no showing that that individual, even if they were in a similar identical position, could... I'm sorry, I didn't understand.

[00:05:55] Speaker 02:
You're talking too fast.

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I apologize.

[00:05:56] Speaker 04:
Even if they were not in similar identical positions... Even if they were, there is no showing or evidence that they actually could have been assigned those duties.

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What does that mean?

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How is an agency supposed to show that?

[00:06:09] Speaker 04:
Well, there are two ways, Your Honor.

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The first would be that the individual that was recommending Mr. Hayden for promotion could have actually assigned those duties to another GS-11 individual.

[00:06:21] Speaker 02:
That goes back around circularly to Judge Stoll's question about whether or not your position has to have the identical supervisor in order to be an identical or similar position, right?

[00:06:33] Speaker 04:
Oh, I must have misunderstood Judge Stoll's question.

[00:06:36] Speaker 04:
Yes, Your Honor, I would submit that they do, in fact, have to be under the same supervisor.

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because that supervisor.

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Let's assume we don't agree with that.

[00:06:42] Speaker 02:
Certainly.

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So what are you left with?

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The second, Your Honor, under that prong would be that another individual actually has to have capacity to take on the additional duties that Mr. Hayden had taken on, which led to his promotion being submitted.

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So you're saying there isn't substantial evidence that this was an employee who was similar or identical to whom the duties could be assigned.

[00:07:05] Speaker 03:
Correct.

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You're focusing on that language, to whom the duties could be assigned.

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And you think that there isn't substantial evidence to support the board's finding on that.

[00:07:14] Speaker 04:
In fact, there's no evidence, Your Honor.

[00:07:15] Speaker 04:
The only record evidence on that point is the position upgrade request itself, which specifically contains a question about the capacity of other individuals to assume Mr. Hayden's duties, and specifically in an affirmative... Well, isn't there a lot... I mean, look at the AJ's opinion.

[00:07:31] Speaker 02:
It goes on for pages, unless...

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Starting at 8, appendix 17, 18, 19, 20, they say, am I looking at the wrong thing?

[00:07:40] Speaker 02:
It says, given the record, it is clear that the surplus employee, that's a weird terminology to call somebody a surplus employee, but was already a GS-12 protocol specialist in March 2012, and would have been fairly qualified for a funded vacancy if one existed.

[00:07:57] Speaker 02:
Are you saying that there's no substantial evidence to support that?

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Am I looking at the wrong thing?

[00:08:02] Speaker 04:
That evidence goes to whether Mr. Hayden would have won the alleged competition, Your Honor.

[00:08:07] Speaker 04:
That was not cited and does not suffice to show that someone was available to take on Mr. Hayden's duties.

[00:08:17] Speaker 04:
In fact, the position upgrade request itself specifically indicates that there were not enough personnel to take on Mr. Hayden's work, additional work.

[00:08:27] Speaker 03:
So your point is that when you're looking at whether there is competition or not, they were looking at a GS11 employee and the availability of GS11 employees.

[00:08:38] Speaker 03:
The later question as to whether Mr. Hayden would have received the position if there had been competition, then that was talking about the qualities of this person referred to as, I think, JH in the opinion.

[00:08:53] Speaker 04:
Correct, Your Honor.

[00:08:54] Speaker 02:
Can I ask you about the remedy sought here as a relief?

[00:08:57] Speaker 02:
As I understand from the record, your client has already been promoted to a GS-12.

[00:09:03] Speaker 02:
That was done like a bunch of years, 2015.

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And I don't know what the, even if they had not discriminated against your client or whatever, it would have taken a little time for them to

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effectuate the promotion you are seeking here.

[00:09:19] Speaker 02:
So are we looking at the difference between two or three years, the difference in pay between a GS-11 and a GS-12?

[00:09:28] Speaker 02:
Is that the relief that's at stake here?

[00:09:30] Speaker 04:
Correct, Your Honor, in addition to interest and also attorney's fees at this point.

[00:09:36] Speaker 02:
Do you have a view of exactly when the clock would have started to run on his entitlement to a GS-12 precision, given this record?

[00:09:43] Speaker 04:
30 days after he was recommended for promotion, I believe that the MSPB assumed that it would be completed within 30 days on remit.

[00:09:53] Speaker 02:
So he was recommended for promotion, and then he left on reserve duty.

[00:10:02] Speaker 02:
And so he wasn't available to undergo the interview.

[00:10:07] Speaker 04:
That is correct, Your Honor.

[00:10:10] Speaker 04:
And then the position was canceled upon his return.

[00:10:13] Speaker 04:
They elected not to, and they canceled the promotion and elected not to seek it.

[00:10:17] Speaker 04:
And then several years later, Mr. Hayden became eligible for the promotion to a GS-12 position in 2015.

[00:10:24] Speaker 04:
He retains that position today.

[00:10:25] Speaker 02:
Was that a non-competitive, when you say he became eligible, was that a non-competitive basis, or was that another competitive promotion?

[00:10:33] Speaker 04:
I believe it was a non-competitive promotion, Your Honor, but that was not under Air Force Manual Rule 20 or 21 that was the issue in this case.

[00:10:40] Speaker 04:
I believe an individual left

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Another GS-12 position left the Air Force, which allowed Mr. Hayden to assume that position under a separate rule.

[00:10:50] Speaker 04:
I'd also like to point out, Your Honor, turning now to the second prong about whether Mr. Hayden would have won any alleged competition.

[00:10:58] Speaker 04:
An important aspect here is that the Air Force and the MSPB merely assume that the GS-12 surplus employee would have been considered best or fully qualified under the Air Force manual.

[00:11:12] Speaker 04:
That is not a de minimis requirement.

[00:11:13] Speaker 04:
And in fact, the Air Force manual at several points sets out that even someone who's considered well qualified may not in fact be deemed best or fully qualified.

[00:11:22] Speaker 02:
So this is a, is this a substantial evidence question?

[00:11:26] Speaker 04:
Yeah.

[00:11:26] Speaker 04:
Yes, your honor.

[00:11:27] Speaker 04:
And that there was no evidence that the individual was in fact, best or fully qualified under the Air Force manual.

[00:11:32] Speaker 03:
And further, there is, are you saying that nobody testified to that effect?

[00:11:38] Speaker 04:
That is precisely what I'm, I'm

[00:11:40] Speaker 04:
indicating, Your Honor.

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In fact, in numerous places, the testimony specifically indicates that J.H.

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only would have been entitled to the position should she be best or fully qualified, and there's just so simply no evidence on that point.

[00:11:55] Speaker 04:
The MSPB seems to make that assumption just on the fact that she was a GS-12, but as I indicated... And performing those duties.

[00:12:01] Speaker 04:
Well, she was a surplus employee, so she was not, at that time, performing those duties.

[00:12:04] Speaker 02:
I thought there was some special status for these surplus employees.

[00:12:08] Speaker 02:
So they didn't have to be, assuming it's a competition, that they don't have to be the best.

[00:12:15] Speaker 04:
They still must be best or fully qualified under the Air Force manual rule.

[00:12:18] Speaker 02:
Or fully qualified.

[00:12:19] Speaker 02:
They don't have to be the best.

[00:12:20] Speaker 02:
They have to be fully qualified.

[00:12:21] Speaker 02:
And that was the finding of the judge here, right?

[00:12:24] Speaker 04:
Your Honor, I would submit that they did not make any such finding.

[00:12:28] Speaker 04:
They just simply assumed that she was qualified.

[00:12:31] Speaker 04:
And in fact, as I'm trying to convey, that best or fully qualified

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moniker is not just a de minimis requirement.

[00:12:38] Speaker 04:
It's actually, and there's language to this effect in the Air Force manual that even if you're best or fully qualified, excuse me, even if you're well qualified, you're not best or fully qualified pursuant to the Air Force manual.

[00:12:50] Speaker 04:
So it is not something that can just be substantiated based on the fact that she was a surplus employee.

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There had to be separate evidence showing that she was, in fact, best or fully qualified per the Air Force.

[00:13:00] Speaker 03:
And did you think that the board correctly defined that at page appendix 17, where they say, best or fully qualified candidates are defined as possessing the knowledge, skills, and abilities to satisfactorily perform the duties of the position without undue interruption to the gaining organization?

[00:13:21] Speaker 04:
I am not challenging that definition, Your Honor.

[00:13:25] Speaker 04:
I would also suggest that the MSPB simply assumes that Ms.

[00:13:29] Speaker 04:
Hayden would have actually taken the position if offered.

[00:13:32] Speaker 04:
There is no evidence to that effect.

[00:13:34] Speaker 04:
And in fact, the MSPB tasked Mr. Hayden to put forth evidence that she would not have accepted the position.

[00:13:40] Speaker 03:
But he did address this, right?

[00:13:42] Speaker 03:
I mean, the board does address that issue and points out that as a surplus employee, she would have had great inclination to take the position or she might have been let go.

[00:13:52] Speaker 04:
She may have suffered adverse action, but there is no evidence that that actually would have occurred here.

[00:13:57] Speaker 03:
What is the burden of proof that the government had?

[00:14:00] Speaker 03:
Is it clear and convincing evidence?

[00:14:02] Speaker 03:
What is it?

[00:14:02] Speaker 04:
No, it's a preponderance of the evidence, Your Honor.

[00:14:05] Speaker 02:
One, you're willing to hear about it.

[00:14:06] Speaker 02:
One minute from the other side.

[00:14:08] Speaker 02:
Thank you.

[00:14:19] Speaker 00:
May it please the court?

[00:14:20] Speaker 00:
The Air Force was required to show on remand whether competition was required for Mr. Hayden to receive his upgrade to a GS-12 position and whether he would have been successful of doing so.

[00:14:31] Speaker 00:
The board correctly found that the Air Force showed by a preponderance of the evidence both that competition would have been triggered under Rule 21 of the Air Force Manual and that surplus employee J.H.

[00:14:42] Speaker 00:
would have received the position if competition.

[00:14:46] Speaker 02:
that it would have, aren't the regulations we're talking about, don't they say may?

[00:14:51] Speaker 02:
Don't they give the Air Force discretion?

[00:14:54] Speaker 00:
Yes, Your Honor.

[00:14:55] Speaker 00:
It is entirely discretionary.

[00:14:57] Speaker 02:
So you have to get up and say, hypothetically, if I were presented with this circumstance, I would have exercised my discretion to do this.

[00:15:09] Speaker 00:
What the Air Force was required to show, and again, this is five years after the fact.

[00:15:13] Speaker 00:
So what Petitioner's Council asks

[00:15:16] Speaker 00:
The burden to be on the Air Force is to show the impossible, which is something that did definitely happen that only could have happened with the Air Force showed through preponderant evidence was that in these circumstances.

[00:15:31] Speaker 00:
This is what would have been recommended, which is competition would have been required.

[00:15:36] Speaker 02:
Did you put on evidence about comparable circumstances in which this thing happens?

[00:15:42] Speaker 02:
I don't know what frequency this occurs, but where a person is recommended for upgrade and you do competition?

[00:15:50] Speaker 02:
I mean, was the file before the AJ replete with examples of similar circumstances?

[00:15:56] Speaker 00:
I don't believe that there's any similar circumstance in this precise circumstance.

[00:16:01] Speaker 00:
There was testimony before the administrative judge regarding whether upgrades had been canceled, similar to Mr. Hayden's position.

[00:16:09] Speaker 00:
But I don't believe there were.

[00:16:11] Speaker 02:
And what was the result?

[00:16:11] Speaker 02:
What was the evidence in that regard?

[00:16:13] Speaker 00:
Very rarely did it happen.

[00:16:16] Speaker 00:
But because this Court had already determined that Mr. Hayden met his prima facie showing that

[00:16:23] Speaker 00:
that the cancellation was due to his military service.

[00:16:26] Speaker 00:
The question wasn't whether the Air Force did, in fact, cancel the upgrade because of Mr. Hayden's military service.

[00:16:33] Speaker 00:
It is if they had proceeded further, again, within that approximately 30-day period, what would have happened?

[00:16:40] Speaker 00:
And what the substantial evidence shows is that there was at least one other employee in a GS-11 protocol specialist position who was, if you look at page appendix 682,

[00:16:53] Speaker 00:
It's in an exactly parallel track to Mr. Hayden.

[00:16:56] Speaker 00:
And they report to different first-level supervisors, but the same second-level supervisor end up.

[00:17:02] Speaker 00:
And as the staffing specialist testified before the board, that would have been sufficient to trigger competition.

[00:17:13] Speaker 00:
And as you correctly note, Judge Prost, because this is permissive, the Air Force could have determined anyways, even if Rule 21 was not triggered or

[00:17:23] Speaker 02:
and this was a potential non-competitive upgrade under Rule 20, the Air Force could still have determined that principles of fairness required that competition be... Well, you just use... I mean, the difficulty here is, you're right, it's all hindsight introspection, but you use the word could, and that's troubling to me because I would think that under your... It's not clear convincing evidence, it's just preponderance, but you have to make a showing that he would have.

[00:17:52] Speaker 02:
not that he could have.

[00:17:54] Speaker 02:
Do you agree with me about that?

[00:17:56] Speaker 02:
It's not that they had the discretion to do that.

[00:18:00] Speaker 02:
You need to have shown something more than he could have.

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

[00:18:05] Speaker 00:
And the Air Force definitely showed that.

[00:18:07] Speaker 00:
And the administrative judge took into account the testimony of four Air Force witnesses, all who testified that

[00:18:15] Speaker 00:
The position descriptions in order, Ms.

[00:18:18] Speaker 00:
Perez, that the position descriptions of the A and B wing GS11 protocol specialists were basically the same, that Ms.

[00:18:25] Speaker 00:
Currell, the director of protocol, or Mr. Hayden's third level supervisor, who stated that the A and B wing protocol specialist GS11s were capable of performing work across flights, that work was sometimes assigned across flights, and that those position descriptions, again, were essentially the same.

[00:18:44] Speaker 00:
Ms.

[00:18:45] Speaker 00:
Estes, who testified that if employees were in the same two-letter organization, and that was later defined as essentially the kernel, and no one disputes that the A and B wings were in the same two-letter organization, that if employees in that same two-letter organization have the same grade, title, and job series, competition would have been required, as well as Ms.

[00:19:10] Speaker 00:
Driscoll that testified, again, that A and B wings were in the same

[00:19:15] Speaker 00:
organization that if two employees have the same grade series and position description, then competition would have been required.

[00:19:23] Speaker 01:
So all of this was the findings of the administrative judge, right?

[00:19:27] Speaker 01:
None of it went to the full board?

[00:19:30] Speaker 00:
This was the findings of the administrative judge, yes.

[00:19:32] Speaker 01:
And there's no MSPB, there's no board review, is that right?

[00:19:38] Speaker 00:
Correct.

[00:19:39] Speaker 00:
I believe that he appealed directly to the sports.

[00:19:42] Speaker 01:
And what is the reason for that?

[00:19:44] Speaker 01:
Is it because of the lack of a quorum on the board?

[00:19:47] Speaker 01:
Or it's very rare that we see appeals directly from an administrative judge.

[00:19:55] Speaker 00:
I do not know why Positioner chose to go straight here, perhaps because- Well, let me speculate.

[00:19:59] Speaker 02:
I mean, there is no board.

[00:20:01] Speaker 02:
So if he had decided he could have gotten an appeal from the board, but that would mean that his case would be sitting there.

[00:20:09] Speaker 02:
We don't even know for how long.

[00:20:11] Speaker 02:
So it's his choice to say, do I want to get, we can ask him about it, but my understanding is it's his choice to either wait it out for a board quorum, which is what's happening to thousands of cases currently, or the exception, like your friend who decides, well, I'm not going to wait for the board.

[00:20:31] Speaker 02:
I'd rather just go up to the AJ.

[00:20:33] Speaker 02:
Is that fear, you think?

[00:20:36] Speaker 00:
I would be speculating entirely, but I would agree that would be his choice.

[00:20:42] Speaker 02:
Not your choice.

[00:20:43] Speaker 01:
Correct.

[00:20:44] Speaker 01:
That's right.

[00:20:44] Speaker 01:
But I agree that we all understand and have been told that there has been no board now for a couple of years.

[00:20:54] Speaker 01:
But I have not seen a consistent pattern of the administrative judge being given the authority

[00:21:03] Speaker 01:
for the final decisions that are assigned to the board.

[00:21:11] Speaker 00:
And I believe.

[00:21:13] Speaker 01:
You don't know anything about that, but you're representing the board's decision.

[00:21:28] Speaker 00:
Your Honor, my understanding is that petitioner chose to go back because there is no board.

[00:21:32] Speaker 00:
Presumably, it went back to the administrative judge, and he went directly to this board.

[00:21:37] Speaker 01:
What's the authority of the administrative judge to act for the board?

[00:21:41] Speaker 00:
Well, the administrative judge's decision becomes final after 30 days, which is then presumed to be the board's decision.

[00:21:47] Speaker 01:
And that's just long-standing.

[00:21:49] Speaker 01:
Because it's impossible to appeal to an absent board.

[00:21:52] Speaker 01:
So you're saying it's as if.

[00:21:55] Speaker 01:
There was a voluntary decision not to seek board review so that it automatically became final.

[00:22:03] Speaker 01:
But that's impossible here.

[00:22:06] Speaker 01:
There might have been an involuntary action.

[00:22:12] Speaker 00:
It may have been an involuntary action, Your Honor.

[00:22:14] Speaker 00:
I do not know why Petitioner proceeded in the manner that he did or why

[00:22:21] Speaker 00:
It wasn't appealed to the board, as you correctly stated, there is no quorum.

[00:22:26] Speaker 00:
And so this is clearly the most expeditious manner of getting a decision.

[00:22:32] Speaker 02:
But isn't it your understanding that the longstanding statutory provisions have always been the same?

[00:22:38] Speaker 02:
In other words, the petitioner has the ability to not appeal to the board, but to come straight to us

[00:22:47] Speaker 02:
and the administrative judge's opinion, if it isn't appealed to the board, becomes the final decision, which then gives us appellate review?

[00:22:55] Speaker 01:
Yes, Your Honor.

[00:22:57] Speaker 01:
It becomes the final decision of the board, but there is no board.

[00:23:00] Speaker 02:
No, but that's always been the case.

[00:23:02] Speaker 02:
I think that that's my understanding of the statute.

[00:23:04] Speaker 02:
We can ask the other side, too.

[00:23:06] Speaker 03:
I have a different question, which is on remand.

[00:23:08] Speaker 03:
I'm curious as to why you didn't introduce additional evidence regarding the amount of time typically required to approve an upgrade request.

[00:23:17] Speaker 00:
Well, and that, Your Honor, is because the agency conceded that if this would have proceeded in the normal course, 30 days would be a reasonable time frame, which is something that petitioner asserts occurred when he was upgraded from a GS9 to a GS11 and does not.

[00:23:36] Speaker 03:
Is that reflected in the record?

[00:23:38] Speaker 00:
I know that the administrative judge states that

[00:23:47] Speaker 03:
I know there was no additional evidence was required because whatever that additional time would be, the amount of time typically required, it would be more than 30 days or less than 30 days.

[00:23:59] Speaker 03:
I'm sorry.

[00:24:00] Speaker 03:
Could you please elaborate?

[00:24:02] Speaker 00:
My understanding, and I don't know if it was from testimony in front of the border or in the agency's pre-hearing submissions, but that

[00:24:11] Speaker 00:
It agreed a 30-day time period would have been reasonable to process Mr. Hayden's request, and then it would not have taken more than 30 days.

[00:24:20] Speaker 00:
And because Mr. Hayden was satisfied with that, there was no attempt to introduce further evidence that it would have occurred more quickly or it would have taken longer.

[00:24:31] Speaker 00:
The other finding by the board, which again is correct, is it goes to the second prong, which is that Mr. Hayden would not have

[00:24:39] Speaker 00:
received this position due to the surplus employee J.H.

[00:24:43] Speaker 00:
Now, petitioner argues that the MSPB required or the administrative judge required that he put on evidence to show that J.H.

[00:24:54] Speaker 00:
would not have taken the position.

[00:24:55] Speaker 00:
That is not the requirement here.

[00:24:59] Speaker 02:
No, I'm not sure I understood his position.

[00:25:02] Speaker 02:
I thought he thought that it was your burden.

[00:25:04] Speaker 02:
I don't know that you dispute this, that you have to show at some level of certainty that she would have taken the position.

[00:25:13] Speaker 00:
And substantial evidence shows she would have taken the position, because JH was a surplus employee.

[00:25:18] Speaker 00:
She had priority, and there's no dispute over that.

[00:25:22] Speaker 00:
Because surplus employees are in non-appropriated positions, if there is a reduction in force, then the surplus employees will be removed more quickly than someone who is in a funded position.

[00:25:35] Speaker 02:
So you're arguing that there was, so there ought to have been sort of a presumption that she would have taken it and then he would have to come forward with something to rebut that?

[00:25:45] Speaker 00:
Well, it's more likely than not, Your Honor, that an employee who is given the decision that

[00:25:51] Speaker 00:
I could take a GS-12 position as a protocol specialist in the A wing, which is virtually the same as a GS-12 protocol specialist position in the B wing.

[00:26:02] Speaker 00:
So basically the same position.

[00:26:04] Speaker 00:
They're apart by several miles.

[00:26:06] Speaker 00:
They're still located at Wright-Patterson Air Force Base.

[00:26:09] Speaker 00:
That the employee would choose to take that position to be better protected in the event of a reduction in force.

[00:26:15] Speaker 03:
If she took the position, she would no longer be a surplus employee, correct?

[00:26:19] Speaker 00:
She no longer would have been a surplus employee, yes.

[00:26:22] Speaker 00:
And further that.

[00:26:26] Speaker 03:
Didn't the board also say that she could have been directed to take the position?

[00:26:31] Speaker 03:
Did I read that correctly?

[00:26:32] Speaker 00:
Yes, Your Honor.

[00:26:33] Speaker 00:
She could have been.

[00:26:34] Speaker 03:
So was there evidence to that effect?

[00:26:36] Speaker 00:
There was.

[00:26:36] Speaker 00:
I am not certain who put on that evidence, but the board certainly found that if J.H.

[00:26:45] Speaker 00:
did not take the position, she may have been removed from federal service.

[00:26:49] Speaker 03:
But there had to have been somebody who explained that, right?

[00:26:51] Speaker 03:
Or there wouldn't have been a basis for the board to make that finding?

[00:26:55] Speaker 00:
If there was no explicit testimony, then the Air Force, yes, there wouldn't have been a basis for it unless there was some sort of testimony or other information.

[00:27:09] Speaker 00:
But looking at the

[00:27:12] Speaker 00:
Again, the record evidence discussing the surplus employees and the reasons behind it, the fact that a surplus employee could have been removed in the event of a reduction in force, it's more likely than not that JH would have taken that position.

[00:27:29] Speaker 02:
But those are two different things.

[00:27:31] Speaker 02:
Whether they could be moved at a reduction in force is different than whether they would have been removed if they hadn't taken the position offer.

[00:27:39] Speaker 00:
Yes, Your Honor.

[00:27:40] Speaker 00:
They are different things.

[00:27:43] Speaker 00:
But because substantial evidence shows both that competition would have been required and that Mr. Hayden would not have received the position in the event of competition, the Air Force met its burden and its decision should be affirmed.

[00:28:05] Speaker 02:
Thank you.

[00:28:05] Speaker 02:
Could you take just a moment to clarify the point that Judge Newman was raising, which

[00:28:10] Speaker 02:
I have an understanding about writing here and how you got here.

[00:28:15] Speaker 02:
Can you elaborate?

[00:28:16] Speaker 04:
Certainly, Your Honour.

[00:28:18] Speaker 04:
You were certainly on the right track.

[00:28:21] Speaker 04:
The statute all allows the petitioner to appeal directly to this court after the initial decision of the ALJ becomes final after 60 days.

[00:28:31] Speaker 04:
As for the rationale to come directly to this court,

[00:28:33] Speaker 04:
It is because there is a lack of a quorum on the MSPB's board.

[00:28:36] Speaker 02:
So you're saying, long-standing, petitioners have always had the right to opt, either to get the board to review it or to let the time pass, at which point my understanding is the statute says the AJ's opinion becomes the board opinion.

[00:28:51] Speaker 04:
That is correct.

[00:28:52] Speaker 02:
Now that's what happened here.

[00:28:53] Speaker 02:
It is probably true, and you're suggesting, I'm not going to question that, that you have an added incentive, given the lack of quorum in the board now,

[00:29:02] Speaker 02:
Every petitioner has the choice to keep this case at the board and wait or to appeal the AJ.

[00:29:11] Speaker 04:
Once it becomes final.

[00:29:12] Speaker 04:
Yes, Your Honor.

[00:29:12] Speaker 04:
And frankly, my client after seven years was looking for closure on this issue.

[00:29:18] Speaker 04:
To address a few other points, I think that the panel correctly seized on this issue that the evidence here, even taken at full face value, which you should not,

[00:29:29] Speaker 04:
amounts only to that Mr. Hayden may have had to compete and may have lost the resulting competition.

[00:29:35] Speaker 04:
And that's insufficient.

[00:29:37] Speaker 04:
The could is insufficient to show the burden that he would not have received the position and would have had to compete for it.

[00:29:43] Speaker 02:
Well, on one theory, the other, the alternative theory could be that the may means that it's the agency's discretion, right?

[00:29:51] Speaker 02:
So the agency has the authority to do that.

[00:29:54] Speaker 02:
And if the agency testifies that they would have, under these and similar circumstances, done it, why isn't that sufficient to make the could into a would?

[00:30:02] Speaker 04:
If there was any contemporaneous evidence that shows they were considering such an action, I might be willing to entertain that, but that's not the situation we have here.

[00:30:09] Speaker 02:
But aren't we necessarily in a hypothetical situation in any of these cases?

[00:30:14] Speaker 04:
No, Your Honor, and that's actually a point I wanted to address.

[00:30:16] Speaker 04:
For instance, in Dean v. Consumer Products, which is cited in the appellee's brief,

[00:30:21] Speaker 04:
There, the individual did in fact show that there was discriminatory animus, and then it shifted back.

[00:30:28] Speaker 04:
And although he was not successful, that was because he hadn't complied with the relevant application protocols.

[00:30:35] Speaker 04:
And that does show you the type of circumstances that can exist in these cases.

[00:30:39] Speaker 04:
Although the discrimination happened, it was part and parcel of an otherwise negative decision.

[00:30:47] Speaker 04:
And that is not what happened here.

[00:30:49] Speaker 04:
Here, the discrimination occurred right at the outset.

[00:30:52] Speaker 04:
And in fact, the only evidence that we have was that Mr. Hayden's position upgrade was, in fact, being processed.

[00:30:59] Speaker 04:
They went to the next step in the procedure, which is, can he complete this desk audit?

[00:31:04] Speaker 04:
At which point, when he was absent from military service, they canceled it.

[00:31:07] Speaker 04:
There's just no evidence.

[00:31:10] Speaker 02:
This is a neutral question.

[00:31:11] Speaker 02:
I just want to know.

[00:31:12] Speaker 02:
It was his supervisor that recommended him, right?

[00:31:16] Speaker 04:
Correct, Your Honor.

[00:31:17] Speaker 02:
Is there no final review of that outside of this audit that was canceled?

[00:31:22] Speaker 02:
Don't other people of the food chain have to approve it or review it?

[00:31:28] Speaker 04:
Your Honor, I think that is what the Air Force would have you believe.

[00:31:31] Speaker 04:
But as a matter of course, these were granted.

[00:31:33] Speaker 04:
And that is an important consideration.

[00:31:35] Speaker 02:
But my question is...

[00:31:37] Speaker 02:
It either is or isn't.

[00:31:39] Speaker 02:
Who signs off on these?

[00:31:40] Speaker 02:
Does the supervisor have final sign off on this?

[00:31:44] Speaker 02:
Or does it, whether you say this isn't the way it's done or they always wink and nod and just sign anything the supervisor puts in front of their face.

[00:31:52] Speaker 02:
That's not my question.

[00:31:52] Speaker 02:
My question is, is a matter of protocol, is there subsequent review?

[00:31:57] Speaker 04:
There was additional review.

[00:31:58] Speaker 04:
In fact, that fact that it was canceled for lack of a desk audit is evidence that there was some process that should have been followed here.

[00:32:07] Speaker 02:
Thank you.

[00:32:09] Speaker 02:
One final remark, I've used up all your remedial time.

[00:32:12] Speaker 04:
Certainly, Your Honor.

[00:32:13] Speaker 04:
And I think that this is a key point, and that the Air Force bears the burden to show that Mr. Hayden would have had to compete and would have not been successful.

[00:32:21] Speaker 04:
And to the extent that they've only established that he could have had to compete and that he may have not been successful, that's not sufficient to carry the burden in this case.

[00:32:29] Speaker 02:
Thank you for your time.

[00:32:30] Speaker 02:
Thank you.

[00:32:31] Speaker 02:
We thank both sides in the cases significantly.