[00:00:00] Speaker 03: This is Holland versus MSPB 19-1388. [00:00:02] Speaker 03: Mr. Rovio, I see you reserved four minutes of time for rebuttal. [00:00:09] Speaker 03: I did, Your Honor. [00:00:10] Speaker 03: Okay, we're ready to go. [00:00:11] Speaker 03: Thank you. [00:00:11] Speaker 04: Good morning. [00:00:18] Speaker 04: I'd like to address first that these specific critical issues that we believe are important to a decision and the reversal of the decision of the action below. [00:00:27] Speaker 04: First, the central issue is Mr. Holland's status at the time of his termination. [00:00:32] Speaker 04: And secondly, whether or not he was afforded his due process and or procedural due process rights as an employee. [00:00:39] Speaker 04: It is undisputed that Mr. Holland was an employee pursuing to Part 73, 101.B, and in a covered position at the time of his termination. [00:00:50] Speaker 04: Also, he had attained that status. [00:00:53] Speaker 05: Sorry, those are the suitability regulations you're talking about? [00:00:57] Speaker 05: Correct. [00:00:58] Speaker 05: It's a different question for statutory. [00:01:00] Speaker 05: Correct. [00:01:02] Speaker 04: This is the suitability aspect. [00:01:04] Speaker 04: and at the time he attained that status three weeks prior to his termination because he had to be an employee that was there for at least a year in a covered position and then he attains at that point employee status and at that point the [00:01:18] Speaker 04: where our argument is that he at that point obtained and was subject to an afforded due process, Fifth Amendment due process rights and procedural due process rights under the suitability statutes. [00:01:31] Speaker 04: Also, he was an employee who was subject to investigation. [00:01:35] Speaker 04: And according to the regulations, being such an employee, they must make a suitability determination, and then thereafter determine what suitability action, if any, has to be taken. [00:01:49] Speaker 04: Now, that could be for any reasons. [00:01:51] Speaker 04: It could be misconduct. [00:01:52] Speaker 04: It could be criminal act, intentional false statements, deception, fraud. [00:01:56] Speaker 01: If they find a negative finding, then DEA was required to refer that matter to OPM for further consideration. [00:02:14] Speaker 04: That's correct, but I don't believe that's what it is right now. [00:02:16] Speaker 04: I believe this regulation stands alone. [00:02:19] Speaker 04: Every employee in a subject to investigation position, which a DEA criminal investigator is, Mr. Cameron is in the courtroom. [00:02:27] Speaker 04: is subject and must have the determination made. [00:02:30] Speaker 04: The suitability isn't separate from another particular place. [00:02:34] Speaker 04: It's saying, if you're going to work for us as a criminal investigator, we are required to do a suitability determination on you, whether there's something wrong or not. [00:02:42] Speaker 04: That's not the point. [00:02:44] Speaker 04: The point is to determine the character, the morality, the conduct of a particular person, good or bad. [00:02:50] Speaker 04: So I disagree that they have to be separated. [00:02:53] Speaker 04: We can look at statutes and we can look at the regulations, but unless the agencies are required and do not follow their own regulations, then what value are the regulations? [00:03:05] Speaker 05: Maybe just the point might be put a slightly different way. [00:03:12] Speaker 05: That is, the government's position is, DOJ's position is that it did not make a determination of unsuitability. [00:03:24] Speaker 05: And as I kind of understand it, they kind of have three points about that. [00:03:31] Speaker 05: One is there's only, [00:03:34] Speaker 05: in the list within the regulations of the things that can lead to an unsuitability determination. [00:03:41] Speaker 05: Only one is really relevant, the one about essentially intentional falsehoods. [00:03:46] Speaker 05: And they say, we did not determine they were intentional falsehoods. [00:03:53] Speaker 05: We just determined that there were important omissions [00:03:57] Speaker 05: The intent element was not part of it. [00:03:59] Speaker 05: Second, that another reason I think that they say they did not make a determination of unsuitability is that they recognized they didn't have the authority to do it. [00:04:09] Speaker 05: It wasn't delegated to them from OPM. [00:04:12] Speaker 05: And then third, that's kind of a more legal point. [00:04:14] Speaker 05: that when in 2008 or nine or something, OPM promulgated the regulations, the Federal Register commentary on it says, we are not going to look behind the assertion, the invocation of the particular authority. [00:04:31] Speaker 05: And here, suitability with the exception of a, what they later say was a mistake on the form but not in the letter, was not invoked as the authority. [00:04:41] Speaker 04: Yeah, but I believe it was, your Honor. [00:04:43] Speaker 04: And I'll tell you why I believe they made a suitability... There are several aspects to this case, and I think that they kind of get intertwined somewhere along the line, and they also get confusing along the line. [00:04:53] Speaker 04: But I think a suitability determination was made just because they didn't use the word suitability determination, or they didn't use the word unsuitable, rather they used incompatible, because in the termination later, that's what it said. [00:05:08] Speaker 04: You have provided untruthful information and incomplete information, and therefore we find you incompatible to the services and duties of an 1811 criminal investigator. [00:05:19] Speaker 04: I think because of the use of those words, they say the same thing. [00:05:23] Speaker 04: As we argued in the brief, suitability and incompatibility are synonymous. [00:05:28] Speaker 04: So just because they avoided the use of the words, I think at some point they recognized that they should have done a suitability determination. [00:05:34] Speaker 04: But they can't back up on that because now they terminated them under another form. [00:05:39] Speaker 04: So they did make a suitability determination when you look at it. [00:05:42] Speaker 04: In fact, their own attorney stated that he was basically, Mr. Cameron was responsible for providing false or misleading information in the questionnaire. [00:05:51] Speaker 04: Once that issue arose, and they stated that, and they stated that in their submissions to the board below, once they made those submissions, they have admitted that a suitability determination should have been made. [00:06:04] Speaker 04: They've already admitted they didn't do one. [00:06:05] Speaker 04: They said, we didn't have the authority to do one. [00:06:07] Speaker 04: Well, if they didn't have the authority under the regulations, they had to refer it to OPM to do the suitability determination, which they didn't do either. [00:06:15] Speaker 04: They're saying, no, we don't have to. [00:06:16] Speaker 04: It was a probation. [00:06:17] Speaker 04: OK, goodbye. [00:06:18] Speaker 04: He's gone with no rights, nothing at all. [00:06:21] Speaker 04: Under 315-805, he had rights. [00:06:23] Speaker 04: We're arguing that. [00:06:24] Speaker 04: That's another section of this argument. [00:06:26] Speaker 04: And we say that because of that, he is an employee. [00:06:29] Speaker 04: Whether you're an employee under a regulation, whether you're an employee under a statute, you are an employee. [00:06:35] Speaker 04: And once you become an employee, according to this court, at least in the Robinson case, which I believe two of you sat in on that case and did that decision, there's a fundamental right to pre-termination [00:06:47] Speaker 04: opportunity to be heard, at least at a minimum, to have a meaningful response, to know what the notice is and respond to it accordingly. [00:06:56] Speaker 04: Regardless of where you are, whether you're a probationer or whatever, once you are an employee, under any statute. [00:07:02] Speaker 04: not just necessarily 7511, not under any other statute, 2105, or whatever it may be. [00:07:08] Speaker 04: Once you're an employee, your rights arise by the Constitution, not necessarily by the statutes. [00:07:15] Speaker 04: Excuse me. [00:07:15] Speaker 01: To be clear, the suitability stuff you're pointing to is not a statute. [00:07:19] Speaker 04: I can't hear you, Judge. [00:07:20] Speaker 04: I'm sorry. [00:07:21] Speaker 04: Please say it. [00:07:23] Speaker 05: The suitability material is not in the statute. [00:07:26] Speaker 05: It's only regulatory. [00:07:27] Speaker 05: That's correct. [00:07:29] Speaker 04: Yes, it is regulatory. [00:07:31] Speaker 04: But if you don't follow your regulations, why have them? [00:07:34] Speaker 04: So if you're required that once you find that somebody provided misleading information, their own attorney said that's what it was. [00:07:39] Speaker 04: It was misleading information all quit. [00:07:42] Speaker 01: Where in the regulation do you believe under these circumstances a suitability determination had to be made? [00:07:51] Speaker 04: Yes, they do. [00:07:51] Speaker 01: Where? [00:07:53] Speaker 01: Where in the regulation [00:07:55] Speaker 04: We're basically right here, Judge. [00:07:57] Speaker 04: It's right here. [00:07:58] Speaker 04: It's in Section 73104B3. [00:08:03] Speaker 04: Anyone on a subject to investigation position must have a suitability determination made. [00:08:10] Speaker 04: It's exactly right there. [00:08:27] Speaker 04: Let me know when I can proceed. [00:08:28] Speaker 04: Oh, I'm sorry. [00:08:29] Speaker 04: I don't see how we can avoid loud and mild or stump. [00:08:32] Speaker 04: Can I ask you this? [00:08:33] Speaker 05: Let me just say I want to understand a little bit more about what consequences follow from a negative suitability determination or suitability action, including removal. [00:08:48] Speaker 05: Does that mean that there is an extra formal impediment to later being employed, either by the federal government generally or by this agency? [00:09:00] Speaker 04: Absolutely. [00:09:02] Speaker 05: But why then isn't it significant that that was not asserted, that is made by the DEA? [00:09:12] Speaker 05: The impediment to getting re-employed is lower now than it would be had there been a suitability action. [00:09:21] Speaker 04: Had there been a suitability action, he would have a right to appeal. [00:09:25] Speaker 04: the jurisdiction that would be jurisdiction in the MSPB, be it under 501 and or 50401, 501A. [00:09:32] Speaker 04: He would be able to appeal. [00:09:33] Speaker 04: In this case, we're saying, no, you cannot appeal. [00:09:35] Speaker 04: We have no jurisdiction. [00:09:37] Speaker 04: Once there's suitability, determine which is made under these regulations. [00:09:41] Speaker 04: whichever one it may be, by the agency and or by OPM, which is really the person who should have handled this situation, should have been referred to them. [00:09:49] Speaker 04: Once that happens, you would have an appeal, right of appeal. [00:09:51] Speaker 04: That's the consequence. [00:09:53] Speaker 04: What has happened now, because there's no right of appeal, Mr. Cameron can no longer work in law enforcement, state, local or federal. [00:10:00] Speaker 04: Because they have, as we argued in the case, definitely basically giggly owed him. [00:10:05] Speaker 04: He's lied. [00:10:05] Speaker 04: Therefore, he can't be used for affidavits. [00:10:07] Speaker 04: He can't be used for this. [00:10:07] Speaker 04: He can't be used for anything. [00:10:09] Speaker 04: He can't testify. [00:10:10] Speaker 04: He can't be in certain investigations. [00:10:12] Speaker 04: His career has been ruined by the statements in this letter as a result of an innocent error and misinterpretation of a question, for which he was never given an opportunity after termination to address. [00:10:25] Speaker 04: I find that patently unfair and unjust. [00:10:29] Speaker 04: And I asked this court to reverse the decision below and at least give him an opportunity for a hearing to see whether or not it was there. [00:10:35] Speaker 04: At that hearing, they're going to have to establish by preponderance and evidence that he intentionally did it. [00:10:40] Speaker 04: That's in the Habeke case in NACO. [00:10:44] Speaker 04: Once you get to those two cases, they have a severe burden, which I don't believe they can sustain. [00:10:48] Speaker 05: And so those cases say that the specific charges that were made have an intent element in them? [00:10:58] Speaker 04: Yes. [00:10:59] Speaker 04: And this one does. [00:11:01] Speaker 05: Where is that, by the way? [00:11:03] Speaker 04: They basically said that, well, they didn't say that he had intent, but obviously it's there. [00:11:07] Speaker 04: If someone says to someone, you provided untruthful and incomplete information, they don't say you did that erroneously. [00:11:13] Speaker 04: They never said that. [00:11:15] Speaker 04: They knew that was true, but they never addressed that point. [00:11:19] Speaker 04: And I can't get into something that didn't happen because we didn't have the opportunity. [00:11:22] Speaker 04: I can't bring up facts that have happened since then. [00:11:24] Speaker 04: But I can tell you it's been severe consequences. [00:11:27] Speaker 04: And I might add, Judge, just Toronto, that in this particular case, this will not have far-reaching effects at all. [00:11:34] Speaker 04: It's basically limited to cases like this where possibly the agency itself and or OPM has not complied with their own regulations. [00:11:43] Speaker 04: I only have three minutes left. [00:11:45] Speaker 04: I'd like to reserve those, if I may. [00:11:54] Speaker 02: May it please the court, Jeff Gogger for Respondent MSPB. [00:11:59] Speaker 02: So one of the things that's easily conflated with suitability is suitability determination versus suitability action. [00:12:04] Speaker 02: There are two different things that are defined in the suitability regulations. [00:12:08] Speaker 02: We actually, in the addendum to our brief, the red brief, on page nine, you can see the definitions, how OPM is defined. [00:12:17] Speaker 02: Suitability action and how it defines suitability determination. [00:12:21] Speaker 02: So as relevant here, a suitability action is the only thing that can be appealed to the MSPB. [00:12:25] Speaker 05: But a suitability action includes a removal. [00:12:30] Speaker 02: Expressive, right? [00:12:31] Speaker 02: As listed here, yes. [00:12:32] Speaker 02: Right. [00:12:33] Speaker 05: Based on a determination of unsuitability. [00:12:37] Speaker 05: And the only question, therefore, is whether it is proper or improper to characterize [00:12:44] Speaker 05: the determination made by DEA as a determination of unsuitability, because the action is undisputedly one of the ones that's listed as a suitability action, right? [00:12:58] Speaker 02: I don't know if that's indisputable, but let me just... Is it disputed? [00:13:01] Speaker 05: He was removed from his job. [00:13:04] Speaker 02: It was not removed as a suitability removal action, no. [00:13:08] Speaker 02: It was a termination. [00:13:10] Speaker 02: Maybe I misunderstand your question. [00:13:11] Speaker 05: You started by saying there's suitability determination and suitability action. [00:13:15] Speaker 05: Agreed. [00:13:16] Speaker 05: Suitability action is you're determined to be unsuitable and then there's an itemization of a number of actions taken on that basis, one of which is removal. [00:13:27] Speaker 05: Right. [00:13:27] Speaker 05: He was removed. [00:13:29] Speaker 05: So aren't we just talking about whether the basis for the removal was a determination of unsuitability? [00:13:35] Speaker 02: No. [00:13:35] Speaker 05: Oh. [00:13:36] Speaker 02: No. [00:13:36] Speaker 02: This is a termination during a trial period. [00:13:40] Speaker 02: That's what the record shows. [00:13:41] Speaker 02: He was terminated during a trial period, which is a different type of action. [00:13:44] Speaker 02: It's not appealable. [00:13:45] Speaker 05: So you say that there was no removal here. [00:13:48] Speaker 02: There is no removal. [00:13:49] Speaker 02: That's a term of art in the suitability regulations. [00:13:52] Speaker 02: First you have to get to the suitability regulations. [00:13:54] Speaker 05: What does removal mean? [00:13:57] Speaker 02: in the suitability regulations. [00:13:58] Speaker 02: It means that they've been removed based on the criteria set forth in the suitability regulations. [00:14:05] Speaker 02: A termination, on the other hand, during a trial period could be for a myriad of reasons, none of which are under the accepted service are appealable to the MSPB. [00:14:14] Speaker 02: So this is the real issue in this case. [00:14:18] Speaker 02: The only issue in this case is whether the MSPB correctly determined that Mr. Holland is in the accepted service, serving a trial period, and that he is a non-preference eligible, not a preference eligible veteran. [00:14:33] Speaker 02: If all of that is true, and the record is pretty clear that it is, then he has no appeal rights to the MSPB. [00:14:40] Speaker 05: the agency here didn't, they never- You were truly saying something that I guess is surprising to me, so you can correct my thinking. [00:14:50] Speaker 05: I had understood that there were several possible alternative appeal rights on the table. [00:14:55] Speaker 05: There were the 7511-based appeal rights and there were some of the, I don't know, [00:15:01] Speaker 05: other regulatory ones, 731-806 or 804 or something, and those depend, those two both depend on this resolution of the issue about competitive service versus accepted service. [00:15:16] Speaker 05: My understanding was that the question of appeal rights under 731-504 or 501 or something does not depend on that. [00:15:26] Speaker 05: because he is or was a covered employee for purposes of the suitability regulation, and that the argument that the board adopted, and I think that the government is pressing, is not that he wasn't the covered employee, but that the basis for the action [00:15:44] Speaker 05: was not a determination of unsuitability under the 731 regulation. [00:15:50] Speaker 05: But that had nothing to do with questioning, with saying, oh, he really was not in the accepted service. [00:16:00] Speaker 02: So in order to invoke the suitability regulations, the agency would have had to do two things. [00:16:06] Speaker 02: First, they would have to consider the suitability criteria, which does not exactly match up to saying that someone's not been truthful. [00:16:16] Speaker 05: I understand that argument, but you were making a different point here, which I truly did not understand. [00:16:21] Speaker 05: I thought the only dispute [00:16:24] Speaker 05: about whether he had suitability regulation, appealability, was whether the decision that was made that led to the end of his employment, just call it that, was a determination of unsuitability, basically under the intentional falsehood criteria. [00:16:44] Speaker 02: The agency never invoked the suitability regulations. [00:16:49] Speaker 02: And I think the answer to your question [00:16:51] Speaker 02: is in the suitability regulations themselves, it's on addendum page 12, and OPM specifically states that nothing in the suitability regulations, nothing in the regulations prevents or precludes an agency from terminating someone during their probationary period. [00:17:10] Speaker 02: The entirety of this record reveals that what happened here was, Mr. Hollander, it's on page 12 of our agenda with the red brief and the act. [00:17:19] Speaker 02: There are a lot of words on there, help me with that. [00:17:23] Speaker 02: And it's 5 CFR 731 105, paragraph E. [00:17:26] Speaker 02: And it says an agency may not take a suitability action against an employee. [00:17:31] Speaker 02: That's the second part I was going to tell you, that if they believe this met the suitability criteria and they wanted to turn it over to OPM, that's what they would have had to have done. [00:17:42] Speaker 02: They could not have taken this action. [00:17:43] Speaker 02: But it goes on. [00:17:45] Speaker 02: It says, nothing in this part precludes an agency from taking an adverse action against an employee under the procedures or standards of part 752. [00:17:52] Speaker 02: But it couldn't do that because he's not an employee under chapter 75. [00:17:57] Speaker 02: Doesn't meet the definition under 5 USC 7511. [00:18:02] Speaker 02: Continuing, it says that nothing prevents them from terminating a probationary employee under the procedures of part 315 or part 359 of this chapter. [00:18:13] Speaker 02: So the options are right in the regulations. [00:18:16] Speaker 05: No, no, you really need to say what the heck 315 and 359. [00:18:19] Speaker 02: OK, so the reason it references 315 is up until 2008. [00:18:24] Speaker 02: So there's the accepted service and the competitive service. [00:18:26] Speaker 02: And the general idea is accepted service is easier to hire, easier to fire, so more flexible. [00:18:33] Speaker 02: Up until 2008, the suitability regulations only covered competitive service employees. [00:18:39] Speaker 02: And in fact, suitability was considered part of competitive examination. [00:18:43] Speaker 02: In 2008, OPM said, well, now we're going to include accepted service employees who are eligible at some point to be non-competitively converted into the competitive service. [00:18:56] Speaker 02: That never happened here. [00:18:57] Speaker 02: For all purposes of this appeal, at all times, Mr. Holland was an accepted service employee, not a competitive service employee. [00:19:07] Speaker 02: However, because of that language in the definition, this isn't, if you're looking for that definition of covered employee, it's on page nine of the addendum. [00:19:17] Speaker 02: Because of that language, the administrative said, okay, he's a covered employee, let's see if there is a suitability action here. [00:19:24] Speaker 02: And on page four of the appendix in the initial decision, the administrative judge concludes there's no suitability action here. [00:19:33] Speaker 02: These regulations were never invoked by the DEA. [00:19:36] Speaker 02: The DEA instead, as the record reflects based on the SF50, based on the termination letter, the record reflects that the agency chose to terminate the employment of Mr. Holland during his trial period. [00:19:53] Speaker 02: And nothing in these regulations prevents the DEA from doing that. [00:19:58] Speaker 03: Councillor, you've used up most of your time. [00:20:00] Speaker 03: So let's hear from Councillor Krueger. [00:20:21] Speaker 00: Good morning. [00:20:22] Speaker 00: May it please the court? [00:20:23] Speaker 00: Rebecca Kruser for DOJ. [00:20:25] Speaker 00: I just wanted to use my time to clarify some of the issues that have been raised by Mr. Hollins' counsel here. [00:20:33] Speaker 00: First, the fact that under the suitability regulation he meets that specific definition of an employee, that by itself does not give him any appeal right to the MSPB because that regulation requires a suitability action to have been taken place. [00:20:49] Speaker 00: So just [00:20:50] Speaker 00: Fall into that definition does not in and of itself create jurisdiction. [00:20:54] Speaker 03: Second of all. [00:20:55] Speaker 03: Termination is not a suitability action? [00:20:57] Speaker 03: Just stand alone. [00:21:00] Speaker 03: Termination, is it a suitability action? [00:21:02] Speaker 00: A removal can be a suitability action if it's taken based on a suitability determination. [00:21:08] Speaker 00: Any removal that has something to do with a background investigation is not a suitability determination or a suitability action. [00:21:15] Speaker 00: And me. [00:21:16] Speaker 05: Right. [00:21:16] Speaker 05: So you are making the argument that I came in [00:21:20] Speaker 05: to this oral argument, understanding was at issue, but I think the Board's attorney was saying something quite new. [00:21:27] Speaker 05: Your brief says the reason the suitability regulation doesn't apply is that there was no suitability determination, and I think that's very much worth talking about. [00:21:36] Speaker 05: I had understood the Board's attorney now to be saying there wasn't even a removal under 203A. [00:21:44] Speaker 05: Which I, I mean, there's only one paragraph in the whole AAJ decision on this. [00:21:49] Speaker 05: I did not understand that you even were making that argument in your brief. [00:21:54] Speaker 00: I believe MSPB Council is correct that there's a difference in term of art between a termination and a removal. [00:21:59] Speaker 00: However, in our brief, I did not discuss if that definition is determinative in this issue, so I won't get into that here. [00:22:07] Speaker 00: Going from what we have argued. [00:22:09] Speaker 03: Is that term of art codified in any way? [00:22:11] Speaker 00: I am not prepared to talk about that difference based on what the board has held and what the DEA has done in this case. [00:22:27] Speaker 00: burden at this point to make non-frivolous allegations that would prove jurisdiction. [00:22:31] Speaker 00: He has no allegations showing either a suitability action or a suitability determination took place. [00:22:38] Speaker 00: He cannot contradict the declaration of Patricia Murphy, which the DEA offered before the board, which explicitly lays out that the DEA did not make a suitability determination. [00:22:49] Speaker 00: That's Appendix 286. [00:22:52] Speaker 00: And that expressly lays out that the DEA did not make a suitability determination and did not terminate him based on any suitability determination. [00:23:03] Speaker 00: It did not refer to OPM to do that. [00:23:04] Speaker 00: It did not receive anything from OPM telling him to do that. [00:23:08] Speaker 00: Mr. Holland's attorney belief that it must have happened because it has something to do with his background investigation is not a non-frivolous allegation that the board judge found to be sufficient. [00:23:19] Speaker 00: And that's correct. [00:23:19] Speaker 00: There is no proof in this case a suitability action actually occurred. [00:23:24] Speaker 00: Whether he was terminated, whatever, removed from federal service, that is not automatically a suitability action just because it relates to information on his background investigation. [00:23:34] Speaker 05: If the substance of the decision [00:23:38] Speaker 05: made by the deciding official were identical to the particular provision of the suitability determination regulations. [00:23:49] Speaker 05: That is, I think, the only one being talked about, basically intentional falsehood. [00:23:57] Speaker 05: Would that change the analysis? [00:24:01] Speaker 05: Because at that point, what would be left was only the argument that the employer just didn't call it a suitability determination. [00:24:10] Speaker 05: And maybe you have an argument based on the introduction in the Federal Register that deciding what you call it, that makes all the difference in the world. [00:24:18] Speaker 05: But is that the argument? [00:24:21] Speaker 05: Or is it – I mean, maybe that's one of the arguments, but is there also a difference between the substance of the decision that was made by the deciding of Ishell and the particular intentional falsehood standard of the 731 recognition? [00:24:39] Speaker 00: Well, there's several issues in that, Your Honor. [00:24:42] Speaker 00: One is that an agency is not delegated authority from OPM to make a suitability determination on that specific charge of material intentional [00:24:52] Speaker 05: Right, so your argument is we couldn't have done that. [00:24:55] Speaker 00: Yes, separate from the fact that the DA did not. [00:24:57] Speaker 00: It also could not have. [00:24:58] Speaker 05: Well, but the fact that the DA did not could mean something entirely semantic. [00:25:06] Speaker 05: We didn't use the word. [00:25:07] Speaker 05: Or it could mean something substantive. [00:25:09] Speaker 05: What is the substantive difference between what the deciding official decided and what is in the intentional falsehood regulation? [00:25:20] Speaker 00: Yes, you're correct, Your Honor, that his termination letter did not say that he intentionally made any of those statements in his background investigation. [00:25:29] Speaker 00: He was terminated, and I believe that's at Appendix 107, that he was terminated for a failure to complete [00:25:39] Speaker 00: to provide complete and truthful information on his background investigation. [00:25:43] Speaker 00: So they weren't giving him any sort of mens rea of that. [00:25:46] Speaker 00: They were simply looking at the discrepant information. [00:25:48] Speaker 00: And he was actually warned that this could happen when he was hired. [00:25:51] Speaker 00: He signed a letter saying that if discrepant information was later found, he could be terminated on that basis. [00:25:57] Speaker 00: So that's what occurred. [00:25:59] Speaker 00: They did not go through any process of looking into any of the suitability grounds and making that determination. [00:26:05] Speaker 05: Is there some kind of [00:26:08] Speaker 05: an intent suggestion in what comes a little bit later in the letter, which is not only is there this discrepancy, but that discrepancy we think renders him incompatible, I think is the word, incompatible with the job for this particular agency. [00:26:31] Speaker 00: That's not how [00:26:32] Speaker 00: we believe it should be read, Your Honor. [00:26:34] Speaker 00: And the agency, this goes back to that his argument is simply a constructive suitability determination. [00:26:40] Speaker 00: The agency did not invoke that legal authority. [00:26:43] Speaker 00: It used Title V, Chapter 23, and it terminated him during his probationary period. [00:26:50] Speaker 05: So to try to- Do you think that even if the decision were substantively identical, even if the letter had said, we think you intentionally omitted things, intentionally, [00:27:02] Speaker 05: presented falsehoods and for that reason was incompatible the fact and we're doing this under not under 731 that that would be enough to mean [00:27:16] Speaker 05: the whole 731 basis for appeal is unavailable all by itself. [00:27:21] Speaker 00: Yes, Your Honor, because the only way a person can appeal to the MSPB from the suitability regulations is under 731.501. [00:27:30] Speaker 00: And that specifically states that an appeal can only be taken from a suitability action taken by OPM or an agency with delegated authority from OPM. [00:27:39] Speaker 00: Here, under the same regulations, agencies do not have delegated authority from OPM. [00:27:44] Speaker 00: to make suitability determinations on that specific factor. [00:27:47] Speaker 00: So no matter what language was used in the letter, they still wouldn't have had authority to be doing it. [00:27:52] Speaker 00: And that doesn't grant an appeal right because there's no authority there. [00:27:54] Speaker 00: So this, again, goes to the constructive suitability actions. [00:27:58] Speaker 00: The board cannot, based on the 2008 regulations, cannot read something into the letter that is beyond the authority from the regulations. [00:28:06] Speaker 00: And that's what the Upshaw case from the board was correcting. [00:28:10] Speaker 00: So I see that I have gone quite, yes. [00:28:14] Speaker 01: Why not give the guy an opportunity to be heard? [00:28:18] Speaker 01: I don't understand. [00:28:19] Speaker 01: You found that his behavior renders him incompatible, but you didn't give him a chance to explain his behavior. [00:28:27] Speaker 00: Well, Your Honor, it's established that, for example, in the Mastriano case, that probationary employees have very limited rights. [00:28:34] Speaker 00: That in these circumstances, he does not have certain appeal rights that employees would have. [00:28:41] Speaker 00: And that includes due process protections because of the way Congress has defined these different categories. [00:28:47] Speaker 00: I understand that Mr. Holland believes it's unfair, but it's not. [00:28:54] Speaker 01: It is unfair, but your view is we don't have to be fair? [00:28:59] Speaker 01: Well, Your Honor... Because that's what due process is all about, fairness. [00:29:03] Speaker 01: And you're saying he doesn't get due process rights, so we're allowed to be unfair. [00:29:07] Speaker 00: Due process comes from the Constitution. [00:29:10] Speaker 00: However, the Constitution does not guarantee a right of continued federal employment. [00:29:14] Speaker 00: And if that property right does not attach to a person, yes, that's correct, they are not afforded particular [00:29:19] Speaker 00: due process arguments. [00:29:20] Speaker 00: And this court has actually discussed that in the Stone v. FDIC case, that due process rights do not come from a unilateral desire for them or an expectation of them or what's in your mind when you're hired. [00:29:35] Speaker 00: It comes from Congress. [00:29:36] Speaker 00: It comes from an independent source. [00:29:38] Speaker 00: And in this case, [00:29:41] Speaker 00: This is discussed in stone. [00:29:44] Speaker 00: The fact that 5 USC 7513 says that an employee can only be fired for due cause is what gives the property right. [00:29:54] Speaker 00: And here he does not meet those categories. [00:29:56] Speaker 01: You would certainly agree his supervisors could have called him in and given him an opportunity to defend or explain all the problems that they found. [00:30:06] Speaker 00: Yes, I suppose that could have happened. [00:30:08] Speaker 01: and probably even routinely happens is my guess within the government. [00:30:12] Speaker 01: I know that if I've had to let people go, I don't just usually let them go. [00:30:17] Speaker 01: I usually explain why and hear them out. [00:30:20] Speaker 01: Wouldn't you hope for at least that same courtesy? [00:30:24] Speaker 00: Yes. [00:30:25] Speaker 00: But unfortunately, equities cannot create a property benefit that does not exist other than what's been delegated by Congress. [00:30:31] Speaker 05: Can I just ask, as a factual matter, [00:30:35] Speaker 05: Did Mr. Holland get a chance to, not to go to the board, which is what you're arguing about, but to respond to the decision maker or the charging official? [00:30:49] Speaker 00: No, I don't believe so, Your Honor. [00:30:50] Speaker 00: He was given the termination letter and signed it the same day. [00:30:54] Speaker 00: So, you know, I understand that the [00:30:58] Speaker 00: that there's a, obviously that if he wasn't a probationer, if he had more than two years of continuous federal service, he would be in a different category. [00:31:07] Speaker 00: But that is the structure that Congress has provided in the categories it's driven. [00:31:10] Speaker 01: What's troubling to me is just what if all of the things that the background investigation revealed turned out to be false? [00:31:19] Speaker 01: Now you have an employee who has been terminated, and I understand he can be terminated at will for any reason within his probationary period. [00:31:27] Speaker 01: It's a pretty big deal for him to have on his record that he lied. [00:31:32] Speaker 01: I mean, that's going to follow him forever in his career. [00:31:34] Speaker 01: It can't not. [00:31:35] Speaker 00: Well, Your Honor, that's why the agency gave him the choice before he was hired to wait for his background investigation to be completed or come on with the risk, knowing that if distraught information was found, he would be terminated for that. [00:31:48] Speaker 01: But I doubt that the agency said to him when they said that, [00:31:52] Speaker 01: If discrepant information is found, you'll be terminated. [00:31:54] Speaker 01: And by the way, whatever we find, we won't even open the door and allow you to speak to us about it. [00:32:00] Speaker 01: I doubt that that was explained to him, was it? [00:32:03] Speaker 00: Mr. Holland was aware that he is a probationer and that he was serving on the accepted service as he checked off his form. [00:32:08] Speaker 01: But he was aware he could be fired if discrepant information was found. [00:32:12] Speaker 01: Perhaps this information is not discrepant. [00:32:15] Speaker 01: We don't know because he's been given no opportunity to present his side. [00:32:20] Speaker 00: Well, unfortunately, Your Honor, that's not how the Congressional Congress has defined the different employee categories. [00:32:28] Speaker 00: And if there's no further questions, I'll sit down. [00:32:31] Speaker 00: Thank you. [00:32:32] Speaker 03: Sure. [00:32:34] Speaker 03: You have four minutes. [00:32:37] Speaker 04: Briefly, Your Honor. [00:32:38] Speaker 04: Your Honors, I've covered all the comments I was going to make. [00:32:41] Speaker 04: You've already covered everything that I was going to say. [00:32:44] Speaker 04: And I think what we have to talk about, no, he was not, Your Honor, Judge Moore. [00:32:48] Speaker 04: given an opportunity to respond at all. [00:32:50] Speaker 04: He was handed a termination letter for us to sign it that day, and he was gone. [00:32:53] Speaker 04: Clean out your desk, you're out of here. [00:32:55] Speaker 04: Give us your gun, your creds, and everything else, you're through. [00:32:58] Speaker 04: Without any opportunity whatsoever to address discrepant information, which wasn't discrepant, it was because of the way a word question was formed on that SF-86. [00:33:10] Speaker 01: Unfortunately, there are times, sir, when the government acts in ways that makes me not very proud of them. [00:33:17] Speaker 01: that as a judge I have no power to unravel given the state of the law. [00:33:21] Speaker 04: We have an opportunity here, Your Honor, to unravel because if he was as... How do we unravel this within the four corners of the law? [00:33:29] Speaker 04: How do we unravel it? [00:33:30] Speaker 03: Within the law. [00:33:31] Speaker 04: Within the law, of course. [00:33:32] Speaker 04: I would say that first he's established that he's an employee. [00:33:36] Speaker 04: We have to go back to 731, Your Honor. [00:33:38] Speaker 04: 731 establishes he's an employee in a covered position, subject to investigation. [00:33:43] Speaker 04: Once he's subject to investigation, as I argued earlier, there must be, and it's right in the statute, there must be, the regulation, I'm sorry, there must be a suitability determination made for good or for bad. [00:33:55] Speaker 01: Yes, but that has to be done by OPM. [00:33:59] Speaker 01: Your Honor, once this is determined by them... And by the way 105, which you pointed me to, says that suitability determination can take place at any time, even outside the probationary period. [00:34:12] Speaker 01: So it doesn't have to be the case that this was in fact that very investigation that you say was required to take place. [00:34:21] Speaker 01: It wasn't conducted by the person who was charged to do it. [00:34:24] Speaker 01: And it can be done at any time, even beyond the probationary period. [00:34:28] Speaker 04: But they had an obligation, Your Honor, under the regulations, if they could not do it because they didn't have the delegated authority, they had the obligation, it's a must, refer it to OPM for a suitability determination because of the status he holds. [00:34:43] Speaker 04: Not every employee is covered by that regulation, that they have to do a suitability determination. [00:34:50] Speaker 04: It's absolutely right there, black and white. [00:34:53] Speaker 04: There's no further questions? [00:34:55] Speaker 03: Thank you very much.