[00:00:00] Speaker 02:
17-2371 Jimenez vs. DOJ.

[00:00:49] Speaker 02:
Mr. Burns, please proceed.

[00:00:51] Speaker 02:
Oh, wait a minute.

[00:00:53] Speaker 01:
Yeah, I just wanted to make sure they could.

[00:01:02] Speaker 02:
Give everybody a second.

[00:01:06] Speaker 02:
Sorry, I didn't realize that they were still there.

[00:01:08] Speaker 02:
Is it okay to go now?

[00:01:14] Speaker 01:
It would be better for my argument if they actually aren't there.

[00:01:19] Speaker 02:
All right, go ahead.

[00:01:19] Speaker 01:
Thank you.

[00:01:19] Speaker 01:
May it please the court.

[00:01:22] Speaker 01:
This case comes to you a little bit different than most of these cases because the issue in the case goes to the hostile work environment claim that we believe the judge made aired in his decision determining that a referral to OPR, the Office of Professional Responsibility, was not tainted by discriminatory or retaliatory animus.

[00:01:42] Speaker 01:
And the reason the

[00:01:43] Speaker 01:
I'm not going to repeat what's in the briefs, because it gets a little convoluted.

[00:01:48] Speaker 01:
But the reality of the case is this.

[00:01:50] Speaker 01:
What happened here was that Mr. Jimenez, facing a deadline, submitted what he thought in a closed system was information that supported his claim that he was being retaliated against by being given Christmas duty for a time he had already taken a vacation.

[00:02:07] Speaker 01:
And he wanted to show the court that that was further evidence of the hostile work environment he was facing, that he was suffering

[00:02:14] Speaker 01:
both denials petty and large.

[00:02:17] Speaker 01:
There is some things that we agree about and the reason this case comes to this posture is a little different than I think that is even pitched in the brief.

[00:02:24] Speaker 01:
The DEA has a policy that any OPR referral stops that promotion for three years.

[00:02:30] Speaker 01:
Now whether that violates the merit system principles as it before you, we didn't argue it below.

[00:02:35] Speaker 01:
We accepted the premise because it's important for the second issue in the hostile work environment.

[00:02:40] Speaker 01:
The agency is arguing that the two supervisors that referred my client to OPR following his submission in a closed system of evidence he believes supported his claim were unaware of the impact and didn't really discuss it in advance, even though the evidence shows that the prior limitation on his promotion to a GS-13 had been vetted through those same supervisors.

[00:03:05] Speaker 01:
So they were clearly aware that this referral would in fact

[00:03:09] Speaker 01:
get him limited from being promoted, which is an adverse action.

[00:03:13] Speaker 01:
The DEA wants to argue that somehow that the referral itself can't be an adverse action.

[00:03:18] Speaker 01:
But we go substance over form.

[00:03:21] Speaker 02:
I don't understand.

[00:03:22] Speaker 02:
The administrative judge expressly found that SAC Coleman testified, and her finding was that he could not know with certainty whether a referral would lead to an investigation.

[00:03:33] Speaker 02:
They also say SAC Coleman was never asked about the portion of the John Brown memo relating to not promoting during OPR proceedings, and that Mr. McGinty expressly said he didn't have any idea.

[00:03:47] Speaker 01:
Yeah, we contest all of that.

[00:03:49] Speaker 02:
OK, but that's all fact stuff.

[00:03:51] Speaker 02:
I mean, we review that under an incredibly differential standard.

[00:03:53] Speaker 01:
Certainly, but I think that the issue for the judge, the issue was did the judge have substantial evidence to make the determination.

[00:04:00] Speaker 01:
There was testimony in the record

[00:04:03] Speaker 01:
these two gentlemen that Mr. Coleman had tried to promote Mr. Jimenez earlier.

[00:04:11] Speaker 02:
Well, there's evidence that they supported his promotion before and even after he initiated the MSPB.

[00:04:17] Speaker 01:
Well, he supported it before, but he was told that he couldn't promote them because there was a three-year limitation on that promotion due to the firearm that was lost.

[00:04:25] Speaker 01:
So he certainly knew in advance that there was the Brown memorandum and this rule because he had vetted it through Herman Whaley.

[00:04:31] Speaker 01:
These were the same two people.

[00:04:33] Speaker 02:
He was told that my client could... But the guy testified and the AJ watched him testify and looked him in the eyeballs and the guy said, I didn't know.

[00:04:42] Speaker 01:
Well, but the discrimination doesn't come from just... And that's a fact-finding.

[00:04:46] Speaker 01:
It is a fact-finding, but I think that the thing that that ignores is that the evidence in the case was that he did know and there were inconsistencies between his testimony and Mr. McGinty's on whether they knew the referral would impact his promotion.

[00:05:02] Speaker 01:
Mr. Coleman had physically been involved with Mr. Whaley contemporaneously before this submission because Whaley had told him, with respect to the prior request to promote my client to GS13, that there was this three-year limitation if there was a referral to OPR.

[00:05:19] Speaker 01:
So the argument that Mr. Coleman wouldn't know is belied by the fact that the underlying acceptance of the rationale for why he wasn't promoted before

[00:05:30] Speaker 01:
because we originally challenged those promotions, the explanation from the agency that was accepted by all parties and advanced by this agency was, well, he can't promote because he's got to wait three years.

[00:05:41] Speaker 01:
So they knew that fact when they sent this memorandum forward.

[00:05:46] Speaker 01:
And the reason that's important is because the memorandum was sent forward.

[00:05:50] Speaker 02:
So why do you think Mr. Just out of curiosity, why do you think Mr. McGinty and Mr. Coleman would both lie?

[00:05:56] Speaker 02:
Because they both supported him for promotion beforehand.

[00:05:58] Speaker 02:
They support him for promotion afterwards.

[00:06:00] Speaker 02:
Why would these gentlemen, these supervisors, lie about whether they knew this or not?

[00:06:05] Speaker 01:
Because the way that this came down is there were two companion cases.

[00:06:10] Speaker 01:
There was John Stark and my client, and there's even a reference to it, Israel Joseph.

[00:06:15] Speaker 01:
Stark and Jimenez were reservists who had filed an appeal.

[00:06:19] Speaker 01:
Coleman had gone in to Stark's case and said, I have no animosity towards reservists because I'm promoting Mr. Jimenez.

[00:06:28] Speaker 01:
At the time, he knew he wasn't promoting Mr. Jimenez because he knew that his OPR referral would limit that promotion.

[00:06:35] Speaker 01:
In other words, he knew that by submitting this to OPR, that would limit his promotion.

[00:06:42] Speaker 01:
And we know that the gentlemen are not telling the truth, so to speak, because there are so many inconsistencies in their testimony as to how they made this referral and why they made this referral.

[00:06:52] Speaker 01:
They argued to the court,

[00:06:55] Speaker 01:
To the ALJ, they said, well, we have no discretion, so there's no retaliatory animus.

[00:07:00] Speaker 01:
We have to report this to OPR.

[00:07:02] Speaker 01:
That's not true.

[00:07:03] Speaker 01:
They had the discretion to do so, and they exercised that discretion against Mr. Jimenez.

[00:07:08] Speaker 02:
Remember, the other... You suggested that there might be a lie in Mr. Coleman's testimony.

[00:07:12] Speaker 02:
What about Mr. McGinty's?

[00:07:13] Speaker 02:
Because he alleged he had no idea, and he was not a participant in this other set of facts that you're discussing.

[00:07:19] Speaker 01:
Well, Mr. McGinty was a witness in the case, and he was a witness in

[00:07:23] Speaker 01:
Both Mr. McGinty and Mr. Comer were witnesses in the USERRA appeal.

[00:07:27] Speaker 01:
The intervening event between what happened with the submission of the promotion, if you look at the timeline, there's an intervening event between when they were seeking to promote him.

[00:07:37] Speaker 01:
The intervening event is he filed the class appeal.

[00:07:40] Speaker 01:
It is at that moment that his supervisors come in and they tell him, his immediate supervisors say, you can't mention USERRA in your promotional requests.

[00:07:50] Speaker 01:
You can't mention USERRA

[00:07:52] Speaker 01:
in your submissions.

[00:07:53] Speaker 01:
And we want you to strike that.

[00:07:55] Speaker 01:
And the judge in the ALJ in this case rules that that is because that was a lawyerly language that was unnecessary.

[00:08:02] Speaker 01:
In other words, the judge surmises that because I'm trying to give notice of a USERRA complaint, I'm trying to say to my supervisors, by the way, I think this thing is being held up.

[00:08:13] Speaker 01:
The thing you told me you were going to give me, I believe that's being held up because I engaged in the USERRA appeal.

[00:08:19] Speaker 01:
The distinction that the judge misses is the fundamental fact that shifted between the promotion from Mr. Jimenez and his referral to OPR was the fact that they got notice of his appeal.

[00:08:32] Speaker 01:
And when he was in the midst of that appeal, this referral, I think the court needs to focus on, here's how this happened.

[00:08:40] Speaker 01:
The allegation is not from this judge as to why the referral was appropriate is not based on the knowledge of the people.

[00:08:46] Speaker 01:
Because let us assume for the fact they didn't know.

[00:08:50] Speaker 01:
Let's assume for the fact that neither one of these individuals knew that their referral would limit my client from being promoted.

[00:08:55] Speaker 01:
To some extent, that's not particularly persuasive because the impact is more important.

[00:09:01] Speaker 01:
The agency certainly knew.

[00:09:03] Speaker 01:
And the reason that I think this is significant is that the nature of this referral was advocated and advanced by the agency and accepted by the judge because the submission of this duty roster would somehow put agents at risk.

[00:09:15] Speaker 01:
If you look at Mr. McGinty's submission to OPR,

[00:09:19] Speaker 01:
He doesn't say it's an unauthorized disclosure.

[00:09:21] Speaker 01:
He says it's a violation of national security, and then my client is submitting it for personal gain.

[00:09:27] Speaker 01:
And when examined, he said the personal gain was a USERRA lawsuit.

[00:09:31] Speaker 03:
So these individuals as the basis for this anti, this bias against the military service, what is the basis for that?

[00:09:45] Speaker 01:
The basis, I think, in the, well, there's

[00:09:47] Speaker 01:
There's two elements to this.

[00:09:48] Speaker 01:
The basis of the underlying class complaint, if the court would like me to get into that, is that senior agents were being recalled to active duty for extended periods of time.

[00:09:58] Speaker 01:
Those agents were impacting already stressed operational units, which were 20% to 30% under strength, as Mr. Coleman testified.

[00:10:06] Speaker 01:
So our position in these claims was that what was going on is that these senior agents, by doing active duty service, were considered to be, quote, double dipping from the government

[00:10:17] Speaker 01:
and disloyal to the agency because they should be focused on their duties as law enforcement officers.

[00:10:22] Speaker 01:
And in that class appeal, which I think is part of the record, that was the allegation was that this was impairing the ability, it was imposing a liability on the agency because so many people in the Southwest, in Phoenix and in San Diego and those areas were reservists because there was a natural tendency for law enforcement officers to also have been in the military.

[00:10:42] Speaker 01:
So our position on this was that

[00:10:45] Speaker 01:
The reason there was this animus is because Sachs and assistant Sachs were graded on their production, and this was impairing their production and their bonuses.

[00:10:54] Speaker 00:
Are all of these facts in the record?

[00:10:57] Speaker 01:
They should be in the underlying class appeal.

[00:11:00] Speaker 01:
They may not all be in this particular record.

[00:11:02] Speaker 00:
In this case?

[00:11:03] Speaker 00:
No, I don't believe that all of that is in the record.

[00:11:06] Speaker 00:
So you did not rely on that in support of Sachs?

[00:11:09] Speaker 00:
this case?

[00:11:10] Speaker 01:
No, in this case, this case is largely a retaliation case.

[00:11:13] Speaker 01:
We're saying that what happened here was that when my client filed his USERRA appeal, there was direct evidence of actual hostility from management officials.

[00:11:24] Speaker 00:
And that's clear because one... And I think Judge Mayer's question goes to where is the nexus to USERRA?

[00:11:32] Speaker 01:
Well, my client filed the USERRA appeal.

[00:11:36] Speaker 01:
The reason the agency disciplined him in this case is because he filed a submission that they said was, quote, sensitive that in his mind indicated disparate treatment.

[00:11:49] Speaker 01:
And so the punishment that he received, we want to focus on just the narrow issue in this case, the punishment that he received came from that submission.

[00:11:59] Speaker 01:
In other words, he made a submission within a closed system.

[00:12:02] Speaker 01:
The agency argues the reason that violated everything

[00:12:06] Speaker 00:
And the judge accepted it because it's important to accept why the judge... There was more than just the USERRA complaint.

[00:12:15] Speaker 00:
There was a violation, a technical violation that your client released information that shouldn't have been released.

[00:12:24] Speaker 00:
Well, the question is, first of all... There's more than one potential issue of causality in play here.

[00:12:36] Speaker 01:
Right, but the judge didn't find that the reason that he accepted the premise of the referral was based upon the violation.

[00:12:47] Speaker 01:
He said the reason it was significant is because the information, the harm that could happen is the information could end up in the hands of criminals.

[00:12:55] Speaker 01:
And he did not address the issue that was clearly presented that these officials had discretion on whether to refer that or not.

[00:13:04] Speaker 01:
So in other words, if this was a technical violation, if this was, as we said it was, at worst, he submitted something he thought was helping him.

[00:13:14] Speaker 01:
He did it on his own because he faced the deadline.

[00:13:17] Speaker 01:
He did it in a way that that information was either not relevant, particularly relevant, or was unnecessary.

[00:13:24] Speaker 01:
The government took the appropriate action, withdrew that.

[00:13:27] Speaker 01:
The question is, why then is there a referral to OPR?

[00:13:30] Speaker 01:
That was a discretionary decision.

[00:13:31] Speaker 00:
The supervisors felt that they were obligated

[00:13:34] Speaker 01:
But they weren't.

[00:13:35] Speaker 01:
That's the point that the judge didn't address was that they were not obligated.

[00:13:39] Speaker 01:
They were not.

[00:13:40] Speaker 01:
No, they said they were mandatorily required.

[00:13:42] Speaker 01:
And the reason they said that is that would take out any question of their intent and motivation.

[00:13:47] Speaker 01:
And their intent and motivation is pretty... But that's what they believed.

[00:13:51] Speaker 00:
Now, maybe they weren't actually required, but that's why they offered that as an explanation of why they did it.

[00:14:00] Speaker 01:
But the reason they did it was submitted in their memorandum, which is they said he violated national security and was seeking personal gain.

[00:14:08] Speaker 01:
And the personal gain that they said he was seeking was through the filing of the USERRA appeal.

[00:14:13] Speaker 01:
And so my concern in bringing this case is that the real rationale for this referral wasn't because it was some violation, per se, that there was some discretion on this.

[00:14:24] Speaker 01:
And the real reason it was forwarded was to block his promotion.

[00:14:28] Speaker 01:
In other words,

[00:14:29] Speaker 01:
They knew that the implication would be to block his promotion.

[00:14:32] Speaker 01:
It did block his promotion.

[00:14:33] Speaker 03:
Well, the referral doesn't block his promotion.

[00:14:36] Speaker 03:
It's if the IPR takes it up.

[00:14:40] Speaker 03:
They didn't know whether they would take it up.

[00:14:42] Speaker 01:
I believe, actually, anyone that's referred during the time of the referral is prohibited from being promoted.

[00:14:48] Speaker 01:
So the actual referral does block the promotion.

[00:14:51] Speaker 01:
If there's any finding, it's a three-year limitation.

[00:14:54] Speaker 00:
I think that's correct on that point.

[00:14:57] Speaker 00:
The problem that I'm having is you've got a big mountain to climb.

[00:15:03] Speaker 00:
That is the substantial evidence standard of review.

[00:15:07] Speaker 01:
Correct.

[00:15:08] Speaker 01:
And that's why we say that when looking, well, there's a couple of things we do know.

[00:15:12] Speaker 01:
We know that the judge found two of the four Sheehan factors.

[00:15:15] Speaker 01:
So we don't have to argue about that.

[00:15:18] Speaker 01:
He found that he was in a protected status, and there was a proximity and a rationality

[00:15:23] Speaker 01:
to the actions of the agency in the hostile work environment and to his military status.

[00:15:28] Speaker 01:
So that really is decided.

[00:15:29] Speaker 01:
That's not before you.

[00:15:30] Speaker 01:
The issue is the other two factors.

[00:15:33] Speaker 01:
And so when he said that he found a lack of a hostile work environment, he said he found it because he found two things.

[00:15:39] Speaker 01:
He found that the testimony of the individuals was consistent.

[00:15:46] Speaker 01:
And therefore, there were no inconsistencies.

[00:15:48] Speaker 01:
And in our brief, we pointed out there were many inconsistencies.

[00:15:52] Speaker 01:
And that's important because the issue I'm trying to get at here is, in the discrimination claims, the focus is on the intentionality of decision makers doing the action.

[00:16:03] Speaker 01:
Now, the government argues about the penalty and things like that, but the cat's paw theory would kick in, and we're a little bit backwards on that.

[00:16:09] Speaker 01:
I think the thing that we're looking at, our perspective is, did the judge give a reasonable review of the evidence to support this claim that there were no inconsistencies?

[00:16:21] Speaker 01:
There was an inconsistency of whether they were mandatory required to refer it.

[00:16:26] Speaker 01:
There was an inconsistency in the rationale for the referral that was contained in the memorandum, which was hyperbolic in the extreme.

[00:16:33] Speaker 02:
Mr. Prince, you've used all of your time and all of your rebuttal time.

[00:16:36] Speaker 02:
We're going to have to hear from the opposing counsel.

[00:16:39] Speaker 02:
Certainly are.

[00:16:40] Speaker 02:
Mr. Randelbaum?

[00:16:50] Speaker 04:
May it please the court?

[00:16:55] Speaker 04:
To address the question of whether the referral itself delays a promotion, if I could direct the court to page 172 of our appendix.

[00:17:11] Speaker 04:
This is a 2002 memorandum from the Deputy Administrator John Brown III.

[00:17:18] Speaker 04:
What page?

[00:17:20] Speaker 04:
172, your honor.

[00:17:24] Speaker 03:
What does it say?

[00:17:25] Speaker 04:
It says, when an employee is found to be under an active Office of Professional Responsibility investigation, active investigation includes those investigations still being investigated, being written up under consideration by the Board of Professional Conduct, or deciding official action will be held in abeyance until the completion of the process.

[00:17:49] Speaker 04:
So it has to be an active investigation, not just a referral.

[00:17:56] Speaker 02:
And didn't one of them, either McGinty or Coleman, testify that just because they refer something doesn't mean it automatically gets investigated and they don't know if it's going to be investigated?

[00:18:10] Speaker 04:
Right.

[00:18:10] Speaker 04:
Mr. Coleman testified to that.

[00:18:15] Speaker 04:
That's in Appendix 2438.

[00:18:19] Speaker 04:
2439.

[00:18:19] Speaker 04:
He testified.

[00:18:27] Speaker 04:
Well, first he was asked on 2438 at line 16, when you submitted this memorandum forward, did you know that that would limit Mr. Jimenez's ability to promote to a 13?

[00:18:38] Speaker 04:
The answer, no.

[00:18:40] Speaker 04:
And then further down at the bottom of the page, he started to explain, sometimes they send it back to me and say, no, this is a management issue for you.

[00:18:49] Speaker 04:
or they or they decide to take the case there was no when I sent this up there was no active investigation I didn't know how it was going to play out it's their decision we've heard argument that they must have known because they were aware they must have known that it would delay the investigation because they were aware of this three-year rule where it's two different rules one rule is

[00:19:15] Speaker 04:
You can't be promoted within three years of significant misconduct.

[00:19:19] Speaker 04:
The other rule is you can't be promoted when there's an active investigation.

[00:19:23] Speaker 04:
Just because you know about the three-year rule doesn't mean you know about the other rule.

[00:19:32] Speaker 04:
And they all testified that they felt that they had to refer it, at least in this instance.

[00:19:40] Speaker 02:
Why do they feel like they had to refer it?

[00:19:45] Speaker 04:
Mr. Coleman, this is at Appendix 2414.

[00:19:48] Speaker 02:
It sounds like a pretty insignificant disclosure in a closed proceeding.

[00:19:53] Speaker 02:
I don't understand why they felt like, did they, is there testimony that they felt like they had no choice but to refer it as in the rules governing them required them to do so or they had no choice to do it because they were uncertain of the impact of what he had done?

[00:20:10] Speaker 02:
What is their precise testimony?

[00:20:13] Speaker 04:
That they had to do it because the rules required them to do it, Your Honor.

[00:20:18] Speaker 02:
It's not because... Do the rules require them to refer it?

[00:20:24] Speaker 04:
Yes, Your Honor.

[00:20:25] Speaker 02:
What rule?

[00:20:26] Speaker 04:
It's the... This is it.

[00:20:37] Speaker 04:
Appendix 582.

[00:20:42] Speaker 04:
It says reporting situations, which reflect on the integrity of an employee or on DEA.

[00:21:01] Speaker 02:
Well, I'm in 582.

[00:21:03] Speaker 02:
What section?

[00:21:04] Speaker 04:
Towards the top of the page, Your Honor.

[00:21:06] Speaker 04:
Section T, paragraph T, and then the one below that.

[00:21:12] Speaker 04:
Well, starting with T, reporting situations which reflect on the integrity of an employee or on DEA.

[00:21:19] Speaker 02:
Okay, but then this says an employee who has any information which indicates or alleges another employee is engaged in improper or illegal activities.

[00:21:28] Speaker 04:
Right.

[00:21:32] Speaker 04:
Will immediately report such information to his or her supervisor or directly to the... What were the illegal activities he was engaged in?

[00:21:39] Speaker 04:
Well, it's certainly improper.

[00:21:41] Speaker 02:
Were they illegal?

[00:21:42] Speaker 02:
Is there any allegation they were illegal?

[00:21:44] Speaker 04:
Well, I suppose I'm not sure what illegal means.

[00:21:48] Speaker 04:
If that just means it's a violation, or if it means it's an actual violation of a criminal statute.

[00:21:52] Speaker 02:
But I think improper.

[00:21:54] Speaker 02:
Any improper activities?

[00:21:58] Speaker 04:
Right.

[00:21:58] Speaker 04:
So if I could direct the court to Appendix 2065, this is

[00:22:10] Speaker 04:
This is quoting, this is a document that's quoting one of the rules.

[00:22:15] Speaker 04:
It's in the middle paragraph there, it's quoting from the DEA Personnel Manual, Section 2735.15.

[00:22:23] Speaker 02:
I'm sorry, what page?

[00:22:26] Speaker 04:
2065, Your Honor.

[00:22:28] Speaker 04:
Section 2735.15, J-13, it's quoting from that.

[00:22:33] Speaker 04:
In the middle there it says, no employee shall, one, intentionally destroy, mutilate, remove,

[00:22:40] Speaker 04:
falsify, conceal, alter, or make an unauthorized copy of any government record for his or her own purposes.

[00:22:49] Speaker 04:
And what he did was, if I could direct the court to Appendix 441.

[00:23:01] Speaker 02:
Wait a minute.

[00:23:02] Speaker 02:
You think anybody who makes a photograph of any government record, a copy of a government record for their own purpose,

[00:23:09] Speaker 02:
any at all must be reported through an OPR referral?

[00:23:14] Speaker 02:
Is that right?

[00:23:16] Speaker 02:
That's what you think?

[00:23:19] Speaker 02:
It's a photocopy of any government record.

[00:23:22] Speaker 02:
There's no level of severity.

[00:23:24] Speaker 02:
And you think it's a must, not a may report.

[00:23:27] Speaker 02:
So you think any photocopy of any government record, regardless of significance, requires a reporting to OPR?

[00:23:35] Speaker 04:
If it's unauthorized and if it's for his or her own purpose according to the rules, yes.

[00:23:40] Speaker 02:
You police the photocopy machine?

[00:23:43] Speaker 02:
I mean, you know, it just seems like a ridiculous standard.

[00:23:45] Speaker 02:
Let's go back though for a second to 582.

[00:23:47] Speaker 02:
Page 582, what you're talking about, says that these infractions must be reported to the proper DEA authorities.

[00:23:59] Speaker 02:
What in this section

[00:24:01] Speaker 02:
Defines that as an OPR referral as opposed to just someone else within the chain at DEA Well, this says you got to report it to DEA authorities It doesn't say you have to refer it to OPR You told me that this statue or this section required them to refer it to OPR, right?

[00:24:22] Speaker 02:
What portion of this this

[00:24:24] Speaker 02:
Document requires an OPR referral as opposed to just referring it to DEA authorities right right below that it says Anyone who has information?

[00:24:33] Speaker 04:
In violation of these standards of conduct will immediately report to her immediate supervisor right or directly to the Office of Professional Responsibility Right of referring it.

[00:24:44] Speaker 02:
They didn't have to refer it to OPR correct and

[00:24:48] Speaker 04:
Well, they felt that they did, your honor, and that's what they did.

[00:24:51] Speaker 02:
You stood up and said, yes, I asked you, did they feel like they did or did they actually have to report it?

[00:24:56] Speaker 02:
And you said they actually had to report it.

[00:24:59] Speaker 02:
And so we just walked through it.

[00:25:00] Speaker 02:
And now I think we've come to the conclusion, both of us, that they did not actually have to do a referral.

[00:25:06] Speaker 04:
I don't agree with that.

[00:25:07] Speaker 02:
You don't agree.

[00:25:07] Speaker 02:
So you don't think an or means you have two different options?

[00:25:10] Speaker 04:
Well, if you can repeat Mr. McGinty,

[00:25:14] Speaker 04:
under this could have reported it to Mr. Coleman or he could have reported it to OPR.

[00:25:18] Speaker 04:
Mr. Coleman could have reported, he didn't, I don't know if he had another supervisor, he could have reported it to his supervisor if he had one or he could have reported it to OPR.

[00:25:29] Speaker 04:
So it goes up the chain of command and eventually it gets to OPR if everybody in the chain of command thinks that it is actually something that meets these standards, that it's a

[00:25:43] Speaker 04:
If somebody in the chain of command looks at it and says, no, that's not a violation, then maybe they wouldn't have to report it higher or wouldn't have to report it to OPR.

[00:25:51] Speaker 04:
But if everybody looks at it and says, I think it's a violation, it goes up the chain of command and it goes to OPR.

[00:25:57] Speaker 00:
It sounds like you may have misspoken or perhaps overstated your argument.

[00:26:02] Speaker 00:
Am I correct?

[00:26:05] Speaker 00:
Your position is that it has to be reported, not necessarily directly to OPR in the first instance.

[00:26:13] Speaker 00:
has to be reported.

[00:26:14] Speaker 04:
It goes to the supervisor or to OPR, but when the supervisor gets it, then the supervisor makes the same decision, either report it up to my supervisor.

[00:26:23] Speaker 00:
But in this case, the supervisor could have made the determination that, well, this is a minor thing.

[00:26:30] Speaker 00:
It was inadvertently disclosed, and then it was pulled back.

[00:26:34] Speaker 04:
I think the only discretion they have is to say it's clearly not a violation.

[00:26:39] Speaker 02:
Let's look at T2.

[00:26:40] Speaker 02:
What does T2 say?

[00:26:43] Speaker 02:
It can handle it if it's not a serious matter.

[00:26:46] Speaker 02:
Not if it's not a violation.

[00:26:47] Speaker 02:
If it's not a serious matter.

[00:26:49] Speaker 02:
This seems to me like the quintessential definition of not a serious matter.

[00:26:54] Speaker 02:
I don't think what Mr. Jimenez did, while it may technically be a violation, sounds particularly bad.

[00:27:02] Speaker 02:
The problem he has for me is that he's got to overcome a substantial evidence point of standard.

[00:27:09] Speaker 02:
And even if I think these agents did not have to

[00:27:13] Speaker 02:
refer it.

[00:27:13] Speaker 02:
And even if I think maybe they knew they didn't have to refer it, I still don't know how I get to a reversal under a substantial evidence standard.

[00:27:22] Speaker 04:
Well, because there is substantial evidence, the court would be obligated to affirm it, Your Honor, under the standard of review.

[00:27:32] Speaker 02:
But it seems to be clear to me as we walk through this personnel manual that they did not have to report it and that a supervisor absolutely could have made a determination.

[00:27:40] Speaker 02:
This is not a serious matter because

[00:27:43] Speaker 02:
That's at least the determination I would have made under the circumstances, knowing all the facts.

[00:27:47] Speaker 02:
So then it leaves me to question what their motives were under the circumstances.

[00:27:51] Speaker 04:
Well, certainly all of these supervisors had been advocating for Mr. Jimenez's promotion both before and after this.

[00:28:00] Speaker 04:
Mr. McGinty had been editing his memo to try to help him get promoted.

[00:28:12] Speaker 04:
Direct the court to Appendix 207.

[00:28:15] Speaker 04:
This is an email.

[00:28:17] Speaker 04:
Mr. McGinty talking to Mr. Jimenez by email.

[00:28:23] Speaker 04:
I made many, many corrections in grammar, word choice, syntax, consistency, and sentence structure in the case write-up and accompanying position review worksheet.

[00:28:33] Speaker 04:
Your written work product needs to be perfect.

[00:28:36] Speaker 04:
It goes on to say,

[00:28:39] Speaker 04:
Your written work is pretty much your only contact with me and the special agent in charge, SAC on this matter, so it needs to reflect you in the best light possible.

[00:28:50] Speaker 04:
He's working hard, working on the weekends, editing his memo to try and get him promoted, but then secretly he's retaliating against it.

[00:29:03] Speaker 02:
It doesn't make sense.

[00:29:04] Speaker 02:
What is that essay that you were talking about that he was editing?

[00:29:08] Speaker 04:
It's the promotion memo.

[00:29:09] Speaker 02:
So he didn't have to do that.

[00:29:11] Speaker 02:
It's not like he was editing work product that was part of, in the supervisory chain, something he would have edited.

[00:29:18] Speaker 04:
Well, I think it goes through the supervisory chain.

[00:29:21] Speaker 02:
Did he have an obligation to edit it?

[00:29:26] Speaker 04:
I don't think he had an obligation to edit it, Your Honor.

[00:29:29] Speaker 02:
You're actually friendly questions.

[00:29:31] Speaker 02:
You think they're hostile, so you're really suspicious and you're fighting me, but they're friendly.

[00:29:36] Speaker 04:
I'm sorry, could you say that again, Your Honor?

[00:29:38] Speaker 02:
I said that these are friendly questions, not hostile questions.

[00:29:43] Speaker 02:
You're looking for the hidden something.

[00:29:46] Speaker 02:
And they're not.

[00:29:47] Speaker 02:
They're friendly questions.

[00:29:48] Speaker 02:
So he didn't have any obligation to do this, to edit this guy's memo.

[00:29:54] Speaker 02:
So he was helping him seek promotion.

[00:29:59] Speaker 04:
Right.

[00:30:00] Speaker 04:
Yes, that's right, Your Honor.

[00:30:01] Speaker 02:
That's the clear evidence of record.

[00:30:03] Speaker 04:
Right.

[00:30:04] Speaker 02:
So that would seem to be substantial evidence upon which the AJ could have found.

[00:30:09] Speaker 04:
Right.

[00:30:11] Speaker 04:
And the judge relied on this.

[00:30:17] Speaker 04:
So that's Mr. McGinty.

[00:30:18] Speaker 04:
As for Mr. Coleman, when the promotion was delayed the first time because of the three-year rule, Mr. Coleman is

[00:30:29] Speaker 04:
He's calling Mr. Whaley, who is the inspector at OPR, to advocate for the promotion.

[00:30:38] Speaker 04:
This is at appendix 2411 and 2412.

[00:30:40] Speaker 04:
At 2411, this is Mr. Coleman testifying.

[00:30:48] Speaker 04:
He said he doesn't remember every word of the conversation, but he said he called Chuck, meaning Mr. Whaley at OPR, and said, hey, Chuck, got this guy.

[00:30:56] Speaker 04:
He's earned his 13.

[00:30:59] Speaker 04:
came back disapproved, checking to see the status, essentially, of what the details are on this thing.

[00:31:05] Speaker 04:
And then at page 2412.

[00:31:07] Speaker 02:
It doesn't sound like someone who's trying to thwart.

[00:31:11] Speaker 04:
Right.

[00:31:13] Speaker 04:
At 2412, he said, so did I vehemently argue and jump up and down with Chuck?

[00:31:19] Speaker 04:
No.

[00:31:20] Speaker 04:
But I certainly said, hey, this kid is a good agent, and he's done a good job.

[00:31:24] Speaker 04:
And Chuck said, I realize that, but the three year

[00:31:27] Speaker 04:
is the three-year rule for these lost guns, essentially.

[00:31:31] Speaker 02:
That's the disciplinary proceeding for the lost gun.

[00:31:33] Speaker 02:
Right.

[00:31:33] Speaker 02:
That's not the disclosure of the unredacted copy of the stuff.

[00:31:38] Speaker 04:
Right.

[00:31:38] Speaker 02:
So we've got Mr. Right.

[00:31:41] Speaker 04:
So we've got Mr. Coleman, who previously was not only moving it through the chain of command, but advocating and maybe to a small degree complaining to Mr. Whaley when the three-year rule

[00:31:54] Speaker 04:
delayed at the first time.

[00:31:55] Speaker 02:
And that's all the substantial evidence to support the AJ's conclusion that these two supervisors didn't have it out for Mr. Jimenez.

[00:32:03] Speaker 02:
That's not why they sent this OPR referral.

[00:32:06] Speaker 02:
They sent it because they thought they had to.

[00:32:09] Speaker 02:
Now, maybe they technically didn't have to, but even you thought they had to.

[00:32:11] Speaker 02:
So it couldn't be unreasonable for them to think they had to.

[00:32:16] Speaker 04:
I couldn't have said it better myself, Your Honor, and I'm out of time.

[00:32:19] Speaker 02:
All right, your time's up.

[00:32:21] Speaker 02:
So there you go.

[00:32:22] Speaker 02:
I'll give you two minutes of rebuttal.

[00:32:26] Speaker 01:
Just very quickly, the actual edits are in the record.

[00:32:28] Speaker 01:
They're at Appendix 1403 on.

[00:32:31] Speaker 01:
They're hardly substantive.

[00:32:33] Speaker 01:
The other issue, as I want you to look at the date, they're in April.

[00:32:37] Speaker 01:
The intervening event is he files a complaint a month later, arguing you, Sarah.

[00:32:42] Speaker 01:
All of this stuff about how they supported him occurred before he filed his appeal.

[00:32:47] Speaker 02:
Our position is I think you've locked on it, which is... Did they support him after he filed the appeal?

[00:32:53] Speaker 01:
For his 13, no, there was actually a change in the regulations where he was supposed to automatically get a promotion afterwards.

[00:33:01] Speaker 02:
But didn't they inquire why he didn't?

[00:33:03] Speaker 02:
And he didn't because of the three-year for the gun, lost gun thing.

[00:33:07] Speaker 02:
But didn't they actually say, why didn't he get this?

[00:33:09] Speaker 01:
I don't believe that occurred after he filed his appeal.

[00:33:12] Speaker 01:
I think that occurred before.

[00:33:13] Speaker 01:
And they were told that he could reapply in November.

[00:33:16] Speaker 01:
And he needed to reapply it in the intervening time.

[00:33:19] Speaker 01:
this case was litigated.

[00:33:21] Speaker 02:
What about the fact that you were wrong when you represented to this court that the OPR referral immediately blocked her promotion?

[00:33:29] Speaker 01:
Because the way I looked at the regulations is the OPR, while that case is referred... Is it correct?

[00:33:35] Speaker 02:
The government's... I mean, it certainly looks to me like page 172 expressly says only an active investigation.

[00:33:40] Speaker 01:
No, because he was already entitled... If that was the case, he was already entitled to his promotion.

[00:33:45] Speaker 01:
I mean, if the OPR referral wouldn't have blocked him,

[00:33:48] Speaker 01:
He was already entitled to his promotion before OPR actively looked into this.

[00:33:52] Speaker 02:
Did you argue that?

[00:33:53] Speaker 02:
Maybe that would have been a good argument to make.

[00:33:55] Speaker 02:
If the rule really is that only an OPR investigation, not a referral, will block a promotion, did you argue that in this case they shouldn't have held up a promotion that he was automatically entitled to?

[00:34:06] Speaker 01:
It's hard because the judge truncated the hearing and dealt with the OPR issues somewhat separately.

[00:34:11] Speaker 01:
Only the referral did he handle at the time.

[00:34:14] Speaker 01:
So we argued that this case should be taken as a whole.

[00:34:19] Speaker 01:
And in all candor, I'm not certain that came up in that particular context.

[00:34:24] Speaker 01:
I just want to finish with returning to, I think, the central issue is, let us look at what the judge said was his rationale for finding substantial evidence.

[00:34:33] Speaker 01:
And that was that there were no inconsistencies in testimony.

[00:34:37] Speaker 01:
Well, there was.

[00:34:38] Speaker 01:
That there was no opportunity for them to use discretion.

[00:34:41] Speaker 01:
Well, there was.

[00:34:42] Speaker 01:
That there was no underlying motivation.

[00:34:45] Speaker 01:
And I just want to finish with, please look at the actual referral.

[00:34:49] Speaker 01:
Because you've touched on it, Your Honor.

[00:34:52] Speaker 01:
In order for them to bolster that this needed to be referred to OPR, they took what was a de minimis disclosure and they trumpeted it into a violation for personal gain and a violation of national security.

[00:35:05] Speaker 01:
And they did that knowing that they were witnesses in this case.

[00:35:09] Speaker 01:
I think given that and given that there were other attacks on him for filing the USERO appeal, there was sufficient evidence for this

[00:35:16] Speaker 01:
ALJ to find a hostile work environment and there was substantial evidence to suggest or there was evidence to suggest that his findings on their face were incorrect.

[00:35:26] Speaker 01:
None of the ones being advanced today were the ones he advanced in his opinion.

[00:35:30] Speaker 01:
Thank you.

[00:35:30] Speaker 02:
I thank both counsel for their arguments.

[00:35:32] Speaker 02:
The case is taken under submission.