[00:00:01] Speaker 05: We have one case this morning, but before we start, I have an admission. [00:00:08] Speaker 05: Cassie. [00:00:11] Speaker 05: So it's always sad when my clerk's year is ending and they have to move on, but I'm always excited to see them move on and either start or go back to their career and see what they do. [00:00:23] Speaker 05: And it's been a great year with Cassie. [00:00:25] Speaker 05: I hope she's had a good time and has learned as much. [00:00:30] Speaker 05: from the clerkship as all of her predecessors have. [00:00:33] Speaker 05: She's been great and has done a really good job helping me get ready for argument and writing opinions and the like. [00:00:38] Speaker 05: So with that said, I move the admission of Catherine Gorash, who is a member of the Bar and is in good standing with the highest courts of Pennsylvania and the District of Columbia. [00:00:48] Speaker 05: I have knowledge of her credentials and am satisfied that she possesses the necessary qualifications. [00:00:55] Speaker 03: I think that sounds like a fantastic motion. [00:00:57] Speaker 03: What do you think, Judge? [00:01:00] Speaker 04: All appear to be in order and the motion was well made orally so I too would grant the motion. [00:01:08] Speaker 02: Welcome. [00:01:33] Speaker 05: Mr. Macomber, when you're ready. [00:01:35] Speaker 05: You have reserved five minutes for rebuttal. [00:01:39] Speaker 01: Yes, please. [00:01:55] Speaker 01: Good morning. [00:01:55] Speaker 01: May it please the court. [00:01:56] Speaker 01: My name is Michael Macomber. [00:01:57] Speaker 01: I represent the appellant in this matter, Susan Hiller. [00:02:01] Speaker 01: issues I just want to address right off the bat. [00:02:02] Speaker 01: First, I'd like to thank the court, and specifically Mr. Laufgraben, for their understanding and granting the adjournment to attend to a family emergency. [00:02:09] Speaker 01: I greatly appreciate that, and I greatly appreciate opposing counsel's consent. [00:02:14] Speaker 01: The other issue is more directly on this case. [00:02:17] Speaker 01: A couple days ago, it came to my attention of a presidential decision that just came down from this court about 10 days ago, the Sharp v. Department of Justice case. [00:02:25] Speaker 01: I provided a copy to Mr. Laufgraben last night as I was going through it. [00:02:29] Speaker 01: I have copies for the court's consideration today. [00:02:31] Speaker 01: I'm happy to brief the issue or discuss it, say it's a very short decision, if you'd like to consider it. [00:02:36] Speaker 05: Why don't you submit it with a Rule 28-J letter, which is consistent with our rules. [00:02:43] Speaker 05: I think we can find the decision ourselves, too, if you just want to give us the site. [00:02:48] Speaker 01: Certainly. [00:02:49] Speaker 01: I only found it on Lexis, but it's 2019. [00:02:54] Speaker 01: US Appellate Lexis 6279. [00:02:58] Speaker 01: And I do have copies of it. [00:02:59] Speaker 01: It's Sharp v. Department of Justice. [00:03:01] Speaker 01: Sharp v. Department of Justice. [00:03:01] Speaker 01: It came down on March 1st. [00:03:03] Speaker 01: Okay. [00:03:03] Speaker 01: Thank you. [00:03:07] Speaker 01: There's three issues before the court this morning. [00:03:09] Speaker 01: Whether or not the administrative judge abuses discretion in denying Ms. [00:03:13] Speaker 01: Hiller the opportunity to present witnesses during her hearing, as well as whether the administrative judge abused his discretion in denying her continuance to present witnesses in her pre-hearing submissions during the proceedings below. [00:03:27] Speaker 01: The third issue is whether the administrative judge erred in finding that the respondent, the agency established by clear and convincing evidence, its affirmative defense, that it would have taken the same action. [00:03:38] Speaker 01: With respect to the first argument there, the facts of this case are pretty clear. [00:03:43] Speaker 01: The case had been put on a case suspension back in May of 2015. [00:03:49] Speaker 01: May 12, 2015, at which point in time the administrative judge did not issue his pre-hearing order until five days before the pre-hearing submissions were due. [00:03:58] Speaker 01: Ms. [00:03:59] Speaker 01: Hiller, pro se at that time, was not understanding what was involved in the pre-hearing submissions and immediately filed a motion for a continuance that same day. [00:04:07] Speaker 01: In her motion, she set forth good cause, why she needed an extension of time to prepare her pre-hearing submissions, at which point... What was her good cause? [00:04:17] Speaker 01: Her good cause consisted of, I believe there was four different things. [00:04:20] Speaker 01: One being that she needed additional time to go through thousands of pages of documents that the agency had dumped on her a couple of days prior. [00:04:28] Speaker 01: Two, that she was looking to retain counsel to assist her in the pre-hearing submissions as she did not understand what was involved. [00:04:34] Speaker 01: Three, that the pre-hearing submission or the pre-hearing order from the administrative judge had come down five days before the pre-hearing submissions were due. [00:04:43] Speaker 01: And four, she was currently out of state at the time, which she previously notified the court about back during an earlier status conference, which led to the case suspension there. [00:04:53] Speaker 01: All four of those issues were ignored by the administrative judge. [00:04:56] Speaker 04: Let me ask you one question. [00:04:57] Speaker 04: I understand that the order was May 12, 17, suspending proceedings. [00:05:03] Speaker 04: And then you have the order that the judge issues, I guess on July 19, correct? [00:05:11] Speaker 04: I believe so. [00:05:12] Speaker 04: During that period, were the, I gather from what you just said, the parties were engaged in discovery? [00:05:18] Speaker 04: Yes, Your Honor. [00:05:19] Speaker 04: Between middle of May and middle of basically that two month period there. [00:05:25] Speaker 01: Yes, the case I believe had been put on case suspension and there was a prior motion to compel filed with regards to document production that had not been turned over. [00:05:33] Speaker 01: I believe that document production was turned over just prior to that July [00:05:37] Speaker 01: 19th pre-hearing order from the administrative judge. [00:05:40] Speaker 04: So the point is the May 19 order does state that pre-hearing submissions would be due on the 24th of July, but your point is that it didn't state what the contents of those submissions were to be. [00:05:58] Speaker 01: Correct, Your Honor. [00:05:59] Speaker 01: And if you look at the board's regulations at 5 CFR 1201, there's no guidance on what goes into a pre-hearing submission. [00:06:05] Speaker 01: Every one of these administrative judges has the discretion to do their pre-hearing submissions as they choose. [00:06:11] Speaker 01: Some have very bare bones pre-hearing submissions. [00:06:14] Speaker 01: Some have much more comprehensive. [00:06:16] Speaker 01: In this case, this was a very detailed pre-hearing order that set forth all the evidence and witnesses that need to be submitted. [00:06:22] Speaker 01: This coming off the tails of the agency producing a proverbial document dump on the appellant at that point in time that she was still sifting through. [00:06:31] Speaker 04: Now at this time she didn't have any, she was representing herself in these proceedings. [00:06:36] Speaker 04: Was she consulting at all with any counsel? [00:06:38] Speaker 01: Not to my knowledge, your honor. [00:06:39] Speaker 01: According to the proceedings below, she was pro se during that entire proceeding. [00:06:44] Speaker 01: As you can see right on the initial decision itself, she's indicated as pro se. [00:06:51] Speaker 01: That said, the administrative judge quickly denied Ms. [00:06:56] Speaker 01: Hiller's motion for a continuance, granting her an additional two days to get her pre-hearing submissions in, which she did. [00:07:01] Speaker 01: And her pre-hearing submissions were voluminous. [00:07:03] Speaker 01: I think they're approximately 28 pages. [00:07:05] Speaker 01: They provide a lot of the information that is requested by or required by the judge in his pre-hearing order, albeit not in a bulleted or summary fashion there. [00:07:15] Speaker 01: If you go through Ms. [00:07:16] Speaker 01: Hiller's pre-hearing submissions, [00:07:19] Speaker 01: She provides all the information necessary, including the names of the witnesses she would have called to testify, including the testimony they would have provided. [00:07:26] Speaker 01: She even goes so far to identify the car factors, which is the key issue at this point in time, whether the agency had proven by clear and convincing evidence its legitimate reasons there for reassigning her position. [00:07:39] Speaker 01: But she goes through and identifies these witnesses are going to testify to car factor number one. [00:07:45] Speaker 04: I just want to clarify one thing. [00:07:46] Speaker 04: At this point, were the parties aware that the sole issue before the administrative judge at the hearing was going to be whether the agency had established, by clear and convincing evidence, that it would have taken this action anyway? [00:08:06] Speaker 01: I don't think so. [00:08:08] Speaker 01: While the administrative did make a jurisdictional ruling finding that Miss Hiller did establish that a jurisdiction of the court below [00:08:16] Speaker 01: which does cover the prima facie case of an IRA appeal. [00:08:19] Speaker 01: There was no stipulation filed saying that the only issue on appeal would be the agency's burden to establish by clearing convincing evidence. [00:08:27] Speaker 01: So the first time that was finally determined is in the AJ's decision. [00:08:32] Speaker 01: I believe so, Your Honor. [00:08:32] Speaker 01: There's nothing prior to that. [00:08:35] Speaker 03: Do I understand correctly that the administrative judge did grant some of the alternative relief that she requested by extending some of the deadlines until August 4th, but not extending others all the way till August 4th, only giving, I think, a two-day extension on, for example, the witness list? [00:08:56] Speaker 01: You're right, Your Honor. [00:08:57] Speaker 01: I believe the administrative judge granted her the opportunity to submit an exhibit list later on, but not addressing the witness list. [00:09:06] Speaker 01: I'll be giving her two extra days to get that pre-hering submission in, which she timely did. [00:09:10] Speaker 01: But yes, he did give her some additional time. [00:09:12] Speaker 03: Why didn't she provide the witness list on the date that was provided and the alternative relief granted? [00:09:18] Speaker 01: Your Honor, I think if we look at that pre-hearing submission, you know, with Ms. [00:09:22] Speaker 01: Hiller not being an employment attorney, not having practiced before the Merit System Protection Board and not understanding what the administrative judge may have necessarily required, you know, she did not go down and do any bulleted or a numbered factor, these are my witnesses, these are my exhibits, things of that nature. [00:09:39] Speaker 01: She provided much more of a narrative statement as to all the evidence and facts, and I think had the judge assisted her in sifting through that, he could have easily discerned [00:09:48] Speaker 01: the witnesses that would have testified. [00:09:50] Speaker 01: If you look at the appendix rate, I believe it's 94 through 96, Ms. [00:09:55] Speaker 01: Hiller goes through and specifically highlights the testimonies of Ransom, Ressar, and Hamilton, who would have all testified to all three of the car factors. [00:10:04] Speaker 01: Each one of them was going to provide testimony that would have rebutted the agency's affirmative defense there. [00:10:10] Speaker 01: Unfortunately, the administrative judge didn't do that at all. [00:10:13] Speaker 03: What do you think about the pre-hearing submissions for this before the board is different than pre-hearing submissions before other tribunals? [00:10:22] Speaker 03: I think every tribe... Whether it be district courts or any other kind of tribunal. [00:10:26] Speaker 01: No, I appreciate that. [00:10:27] Speaker 01: Every court does have their own requirements as to what constitutes a pre-hearing... Doesn't it typically include a witness list and an exhibit list? [00:10:34] Speaker 01: You know, having not litigated... I predominantly practice before the Merit Systems Protection Board and the EEOC. [00:10:39] Speaker 03: But what about Ms. [00:10:41] Speaker 03: Hiller? [00:10:42] Speaker 01: Ms. [00:10:42] Speaker 01: Hiller is an immigration attorney. [00:10:44] Speaker 01: At that time, she was providing largely teaching at Glynco, which is one of the academies where they treat law enforcement officers. [00:10:55] Speaker 01: She wasn't practicing routinely in district court, things of that nature. [00:10:59] Speaker 01: Yes, courts do typically require some form of pre-hearing submission. [00:11:03] Speaker 01: But as you can see from her pleadings, this is not something she was routinely involved with. [00:11:08] Speaker 01: And as her motions demonstrate and her pre-hearing submissions, [00:11:11] Speaker 01: she was trying to focus on the substance of the issues as opposed to some of these procedural issues and get the evidence in front of the judge. [00:11:18] Speaker 01: And that's where the abuse of discretion happened here. [00:11:21] Speaker 01: The judge didn't give her the opportunity to develop that record, and now we're all at a disadvantage to determine whether or not the agency can meet its burden to establish by clear and convincing evidence. [00:11:35] Speaker 04: Let me ask you one question, something I'm just scratching my head a little bit over. [00:11:40] Speaker 04: at page uh... seven thirty three of the appendix we have uh... i guess uh... miss hillers prayer for relief what she's asking for now as i understand it right now she there's been no loss of pay she's working as at least unless it's changed what's in the record she's in charlotte uh... with an attorney position with ice is that correct you know i apologize i don't know specifically where she is right now [00:12:10] Speaker 04: But there's no claim for loss of pay or anything like this in this case. [00:12:15] Speaker 04: As I read what's at 733, she wants to be sent back either to Charleston or I think she mentioned Boston in an equivalent position. [00:12:27] Speaker 04: That's what's there. [00:12:30] Speaker 04: But it appears from the record that Charleston is no longer in operation in terms of what she was doing there. [00:12:40] Speaker 04: uh... assume the moment we would agree with you what is the exact relief that is being requested a new hearing or or what because i mean in your brief you just say remand to the board what exactly would you want to happen before the board if we agree with you on appeal so and i think that running down time here but i'll let me address that question [00:13:03] Speaker 01: The remedy would be a remand and having a full adjudicated hearing at that point in time where she'd be provided the opportunity to call witnesses. [00:13:10] Speaker 01: The relief that would be recovered, this is clearly a personnel action within the IRA. [00:13:15] Speaker 01: If Ms. [00:13:16] Speaker 01: Hiller were to prevail, she could file an addendum proceeding for compensatory damages as well. [00:13:21] Speaker 01: She could also provide a motion for attorney's fees and costs that she's incurred before this court and on the remand there. [00:13:29] Speaker 01: So there is certainly relief still to be had there. [00:13:32] Speaker 01: The fact that three years later this position had been drawn down, the division had been abolished, certainly affects what those damages entail. [00:13:43] Speaker 01: But it doesn't affect whether or not there was a personnel action. [00:13:46] Speaker 01: And it doesn't affect whether or not she could still become a prevailing party for purposes of her IRA appeal. [00:13:52] Speaker 01: Thank you. [00:14:10] Speaker 00: Good morning, may I please the court. [00:14:12] Speaker 00: Agency business needs not whistle blowing compelled ICE to eliminate the Charleston position and reassign Ms. [00:14:19] Speaker 00: Hiller to Charlotte in a litigating position. [00:14:22] Speaker 05: Can we talk about the witness list first? [00:14:24] Speaker 05: Yes. [00:14:24] Speaker 05: I mean, how do you respond to your friend's argument that even though she didn't have a specific witness list, her pre-hearing submissions that were timely clearly identified all the necessary witnesses? [00:14:36] Speaker 00: Well, the pre-hearing submission, the order from the administrative judge, Appendix 63, was pretty specific about the requirements. [00:14:44] Speaker 00: They wanted a list of the witnesses, a detailed summary, their location. [00:14:49] Speaker 00: And the reason why that was important is, well, there are two reasons. [00:14:53] Speaker 00: First, in the original pre-hearing conference order, [00:14:59] Speaker 00: The administrative judge specifically said that witness requests will be reviewed in detail and the facts and issues will be discussed. [00:15:06] Speaker 00: So there is a need to identify who are the potential witnesses who might speak. [00:15:11] Speaker 00: And then to see, you know, is there a crossover between the two parties? [00:15:14] Speaker 00: And also, many of these witnesses were agency employees. [00:15:17] Speaker 00: So the agency personnel who is representing the agency in the board would need to know who do we need to contact to bring them into this appeal? [00:15:27] Speaker 00: Who do we need to subpoena? [00:15:28] Speaker 00: Who do we need to help? [00:15:29] Speaker 00: Ms. [00:15:29] Speaker 00: Hiller arranged for their testimony. [00:15:32] Speaker 00: And so by not providing that information in advance of the pre-hearing conference or in accordance with the extended deadline, Ms. [00:15:41] Speaker 00: Hiller deprived the administrative judge and the agency of the chance to go through that exercise. [00:15:51] Speaker 00: Importantly, Ms. [00:15:53] Speaker 00: Hiller's burden here is a very high one to show that the administrative judge abused his discretion. [00:15:59] Speaker 00: In the cases where the court found an abuse of discretion, such as Whitmore or even a board case such as, I believe it's Moore, there is an erroneous factual or legal assumption underlying the decision. [00:16:15] Speaker 00: In Whitmore, it was, what's the scope of the employee's burden to show? [00:16:20] Speaker 00: What does he need to show in order to present this affirmative defense? [00:16:24] Speaker 00: And because the administrative judge misunderstood or misapprehended his legal burden, [00:16:28] Speaker 00: she denied him the ability to call certain witnesses to testify about those decisions. [00:16:35] Speaker 00: But importantly, in Whitmore, when the administrative judge denied the appellant a certain witness because the appellant failed to identify that witness on the witness list, this court said that's entirely reasonable for the administrative judge to exclude that witness from the hearing. [00:16:57] Speaker 00: In this case, there's no erroneous factual or legal assumption that's underlying the administrative judge's decision to grant partial relief on her extension motion. [00:17:08] Speaker 05: But at some point, a demand to do something within a really short time frame could rise to a level of use of discretion, no? [00:17:19] Speaker 00: Perhaps in a certain circumstance, or? [00:17:21] Speaker 05: In that sense, I don't have the specific timing, but if the case had been, [00:17:27] Speaker 05: Excuse me, under suspension for a couple of years, the administrative judge decides, I'm ready to hear this, give me everything tomorrow. [00:17:37] Speaker 05: That might be an abuse of discretion, right? [00:17:40] Speaker 05: I don't know. [00:17:40] Speaker 05: If it depends what- Particularly with the pro se employee. [00:17:46] Speaker 05: I understand that she's a lawyer, but I think we still have to treat her as we would any other pro se applicant or petitioner at the board. [00:17:55] Speaker 00: Of course, it would depend on the context in which that decision was rendered. [00:17:59] Speaker 00: So in a certain context, it might be an abusive discretion. [00:18:02] Speaker 00: In a certain other context, it might not be an abusive discretion. [00:18:05] Speaker 00: But in this context, the administrative judge did not abuse his discretion in granting partial relief on her continuance motion. [00:18:15] Speaker 00: The second point is, even if this court were to agree that the administrative judge abused his discretion, [00:18:23] Speaker 00: Miss Hiller must satisfy a second step, which is to show prejudice. [00:18:27] Speaker 00: And she also cannot show prejudice. [00:18:29] Speaker 00: The information that she would have provided goes to the part of the case that she won. [00:18:35] Speaker 00: She established her prima facie retaliation claim. [00:18:38] Speaker 00: The witness testimony that was offered as part of the record does not speak to any of the car factors, or at least with any personal knowledge. [00:18:47] Speaker 00: One of the witnesses would have to guess why her position was eliminated. [00:18:52] Speaker 00: It seemed funny to him. [00:18:53] Speaker 03: So your point is that because none of those people were the decision makers, their testimony was not relevant at all? [00:19:02] Speaker 00: Well, let's say it was relevant. [00:19:04] Speaker 00: That's the general point. [00:19:06] Speaker 00: Your Honor has it exactly right. [00:19:08] Speaker 00: The actual decision makers testified. [00:19:12] Speaker 00: She cross-examined them. [00:19:13] Speaker 00: They were on the stand with her for about three hours during the course of a half-day hearing. [00:19:18] Speaker 00: So she had the opportunity to examine the witnesses [00:19:22] Speaker 00: who testified in support of the agency's defense. [00:19:26] Speaker 00: And finally, just on the merits. [00:19:31] Speaker 00: On the merits, the administrative judge examined all of the evidence and made factual findings. [00:19:38] Speaker 00: And Ms. [00:19:40] Speaker 00: Hiller has not identified any sort of clearly erroneous factual findings sufficient to disturb the administrative judge's decision on the merits. [00:19:53] Speaker 00: If the court has no further questions, we respectfully request that the court affirm. [00:20:01] Speaker 00: Thank you. [00:20:15] Speaker 01: I specifically want to address that Whitmore decision, because I think the Whitmore decision in the case that I referred to at the beginning of my argument is directly on point here. [00:20:22] Speaker 01: In Whitmore, the administrative judge denied the appellant the opportunity to call any witnesses with regards to that IRA appeal. [00:20:28] Speaker 01: The one witness that was denied was not relevant. [00:20:32] Speaker 01: There was coming in for character evidence. [00:20:33] Speaker 01: It wasn't even an agency employee. [00:20:35] Speaker 01: And that was all part of the judge's determination as to why not to call that decision, or that witness, I should say. [00:20:42] Speaker 01: More importantly, though, the court in Whitmore highlights that whistleblowers by the very nature are at a severe disadvantage in proving their cases. [00:20:51] Speaker 01: IRA appeals are a very, very hard case to try and prove. [00:20:55] Speaker 01: And it is especially hard for this court to review when the record has not been properly developed, as it was in Whitmore. [00:21:00] Speaker 01: And that's the exact same fact pattern we have here. [00:21:03] Speaker 01: Judge Stoll, you asked the question as to whether or not these witnesses' testimony would not be relevant. [00:21:08] Speaker 01: Their testimony would have been relevant. [00:21:09] Speaker 01: Their testimony would have specifically gone towards the car factors, the strength of the agency's reasoning, the motive behind that, and whether or not similarly situated employees were treated more favorably. [00:21:20] Speaker 03: How do you respond to this specific point that, at least for motivation, you should be looking at the decision-maker, and because they're not the decision-makers, it's not relevant? [00:21:30] Speaker 01: I disagree with that. [00:21:31] Speaker 01: I think, you know, in the work environment, so much gets developed between [00:21:37] Speaker 01: you know, what other employees know and learn. [00:21:39] Speaker 01: When you look at the record itself, Hamilton would have testified that everybody in the office knew that they were out to get her. [00:21:48] Speaker 01: I believe it was Mr. Ransom was expected to testify that she was, quote unquote, a troublemaker and management was specifically out to get her. [00:21:57] Speaker 01: Obviously, management is not going to go in and testify that they believe Ms. [00:22:00] Speaker 01: Hiller was a troublemaker, that Mr. Cameron believed that, you know, they were going to retaliate against her. [00:22:05] Speaker 01: That never happens, and that's why IRA appeals are so difficult. [00:22:09] Speaker 01: We rarely have that direct evidence. [00:22:11] Speaker 03: And it's your view that the administrative judge's comment in his decision about acknowledging that she had this reputation in the office wasn't sufficient? [00:22:20] Speaker 01: No, because the judge is just scratching the surface. [00:22:24] Speaker 01: His decision as well acknowledges that. [00:22:26] Speaker 01: He acknowledges the email from one manager to another, Dobson to Knutson, where he specifically sends correspondence about [00:22:35] Speaker 01: Ms. [00:22:35] Speaker 01: Hiller's dozens or hundreds of complaints. [00:22:37] Speaker 01: I forget the exact verbiage. [00:22:39] Speaker 01: And then Mr. Knudsen directly impacts the decision of Mr. Cameron, the ultimate deciding official there. [00:22:45] Speaker 01: I understand that we have to go through these management chains here and understanding what their rationale is. [00:22:50] Speaker 01: But the testimonies of Ransom and Ressar and Hamilton would have gone directly towards that motive and would have rebutted their legitimate reason of business needs. [00:23:01] Speaker 01: In our brief, we talk about how the evidence directly contradicts this, and the fact that these courses did not draw down for another period of two or three years, yet Ms. [00:23:10] Speaker 01: Hiller was the first on the chopping block. [00:23:13] Speaker 01: So all of that evidence should have been considered, and the problem we have is that the record was not properly developed. [00:23:20] Speaker 01: I do see I'm over my time. [00:23:22] Speaker 01: If there's any additional questions, I'm happy to answer. [00:23:24] Speaker 01: Thank you. [00:23:25] Speaker 01: Thank you very much, Your Honors.