[00:00:00] Speaker 04:
We begin our proceedings.

[00:00:01] Speaker 04:
I just want to make a few very brief preliminary remarks.

[00:00:04] Speaker 04:
Firstly, I wanted to thank, on behalf of the panel and the court, Dean Jennifer Collins for all of her hospitality.

[00:00:12] Speaker 04:
And her staff has been great.

[00:00:14] Speaker 04:
And this has just been wonderful for our people to try to set up here.

[00:00:17] Speaker 04:
So we very much appreciate her efforts.

[00:00:20] Speaker 04:
And of course, Professor David Taylor,

[00:00:22] Speaker 04:
who, if you don't know, he's a former clerk of mine, so we have a special relationship, and we thank him for all of his efforts as well.

[00:00:30] Speaker 04:
I'd also like to say that we do this at least once a year, and portions of our court, because we're a national court, travel to another location, and the best part of it is that most of our sittings are law schools, which we really enjoy.

[00:00:44] Speaker 04:
I'd like to thank all of the parties, though, in the cases, because

[00:00:49] Speaker 04:
Nobody ever complains and for some of you I realize it's a little heavier lifting than normally a trip to Washington.

[00:00:56] Speaker 04:
So we very much appreciate your cooperation in all of this.

[00:01:00] Speaker 04:
First case is 182195 Sears versus DVA.

[00:01:06] Speaker 04:
We've got split time here.

[00:01:09] Speaker 04:
So, Mr. Scherr, you're first.

[00:01:13] Speaker 04:
Okay, we're gonna run the clock individually, so you'll get your six minutes.

[00:01:17] Speaker 04:
Now you represent- Dr. Sayers.

[00:01:19] Speaker 02:
Dr. Sanders and your- Oh, I'm sorry.

[00:01:23] Speaker 02:
Yes, my name is David Scherr.

[00:01:24] Speaker 02:
I'm with the Hoyer Law Group.

[00:01:25] Speaker 02:
We represent Dr. Jeff Sayers, the appellant, to my side.

[00:01:30] Speaker 02:
Our counsel for AFGI, they will introduce themselves.

[00:01:32] Speaker 02:
They're part of the union.

[00:01:33] Speaker 02:
They've prepared an amicus brief and they're prepared to argue also.

[00:01:37] Speaker 02:
Thank you.

[00:01:38] Speaker 02:
Thank you.

[00:01:39] Speaker 02:
Please proceed.

[00:01:40] Speaker 02:
And good afternoon and may it please this board.

[00:01:43] Speaker 02:
Your honors, in this case, the administrative judge misapplied section 714D2A.

[00:01:49] Speaker 02:
That section requires the administrative judge to uphold the agency's decision if it is supported by substantial evidence.

[00:01:57] Speaker 02:
But that isn't what happened here.

[00:01:59] Speaker 02:
Here, there were two charges against the appellant.

[00:02:02] Speaker 02:
The first had several specifications, and the administrative judge did not uphold one of the specifications and then applied a razor-thin analysis, parsed out on the other specifications parts of the charges, and only upheld parts of those.

[00:02:18] Speaker 02:
as to Charge B, the administrative judge, quite skeptically only upheld what she called the gravamen of the charge.

[00:02:26] Speaker 02:
In some, in this case, the administrative judge did not upheld both charges in their entirety and therefore did not uphold the decision.

[00:02:35] Speaker 02:
Thus, section D to A is not satisfied here.

[00:02:37] Speaker 04:
We've had these cases, I mean, forget this.

[00:02:38] Speaker 04:
I mean, that's a little confusing to me because we've had a history of doing all these MSPB appeals.

[00:02:43] Speaker 02:
Yes, Your Honor.

[00:02:43] Speaker 04:
So it seems to me the argument you're making has a little connection to

[00:02:48] Speaker 04:
the high issue here, which is we're construing a new statute that applies only to them.

[00:02:53] Speaker 04:
Because your argument has been made for 20 years I've been on the court.

[00:02:57] Speaker 04:
And the answer is, if the only appellate wants, if there's enough for the deciding official to conclude that the penalty was justified on that one charge, that's fine.

[00:03:07] Speaker 04:
It happens quite a few times that you don't win on every specification in the charge.

[00:03:13] Speaker 04:
but you can still uphold the penalty on that basis.

[00:03:15] Speaker 04:
So that's not enough for you to prevail, I don't think.

[00:03:19] Speaker 00:
Yes, Your Honor.

[00:03:19] Speaker 00:
And the administrative judge did uphold both the specifications, just one of them on fewer than all of the charges.

[00:03:28] Speaker 02:
Yes, Your Honor.

[00:03:29] Speaker 02:
Actually, the administrative judge did not uphold one of the specifications and partially upheld two of them, but did uphold the charge.

[00:03:35] Speaker 02:
That is correct.

[00:03:36] Speaker 02:
Sorry, I mixed up the specification charge, George.

[00:03:38] Speaker 00:
Yes.

[00:03:38] Speaker 00:
There were two charges, right?

[00:03:40] Speaker 00:
Yes, Your Honor.

[00:03:40] Speaker 00:
And both of those were upheld?

[00:03:42] Speaker 00:
I think incorrectly, Your Honor.

[00:03:43] Speaker 00:
That's actually- Well, no, no, no.

[00:03:45] Speaker 00:
But again, you're starting off the wrong point.

[00:03:47] Speaker 00:
Our precedent says you don't have to uphold every single specification to find the charges supported.

[00:03:53] Speaker 00:
And if both charges are upheld, that supports the penalty.

[00:03:56] Speaker 00:
You have, I think, a more different argument here because of the new statute.

[00:04:02] Speaker 02:
Yes, Your Honor.

[00:04:02] Speaker 02:
I think we also do have, in addition to that argument, we have an argument about retroactivity.

[00:04:07] Speaker 02:
And I think that's kind of the main focus.

[00:04:08] Speaker 04:
Well, that's their argument.

[00:04:09] Speaker 04:
Well, yes, your argument.

[00:04:11] Speaker 04:
I mean, their argument is you waive the argument of retroactivity because you never raised it below.

[00:04:16] Speaker 02:
Is there any dispute that it was not raised below?

[00:04:18] Speaker 02:
We do not dispute that it was not specifically raised below.

[00:04:22] Speaker 04:
Why not?

[00:04:23] Speaker 04:
Is there any reason why it wasn't?

[00:04:27] Speaker 02:
To be honest with you, Your Honor, I was not the attorney below, so I don't know the answer to that question, except to say that we did raise several arguments of due process.

[00:04:35] Speaker 02:
We did raise several, we did raise that we felt that the wrong statute was being applied.

[00:04:40] Speaker 04:
Well, see, let me just say, we do a lot of different cases, and among those are PTAB cases, and we've really recently

[00:04:46] Speaker 04:
had tons of cases where they're challenging retroactivity.

[00:04:51] Speaker 04:
And the question is whether or not the board should have assessed the issue in the first instance.

[00:04:56] Speaker 04:
And we've typically said really not so much because they don't have any authority to cure it, yadada.

[00:05:01] Speaker 04:
But in this case,

[00:05:03] Speaker 04:
You could have, the AJ might have agreed with you.

[00:05:06] Speaker 04:
Indeed, several AJs at the MSPB have concluded, gone one way and some others have gone the other way.

[00:05:12] Speaker 04:
So why wouldn't we hold you to a waiver where if you had raised this below, it might have changed the result and saved us a whole lot of time.

[00:05:23] Speaker 02:
I think simply, Your Honor, we are here.

[00:05:25] Speaker 02:
This is an important issue.

[00:05:26] Speaker 02:
It needs to be heard.

[00:05:27] Speaker 02:
It's affecting thousands of employees.

[00:05:29] Speaker 02:
And I think it's an important issue to decide, regardless of the fact that it wasn't raised below.

[00:05:34] Speaker 02:
And I agree.

[00:05:35] Speaker 02:
I'm not sure you're saying this, but we believe that if you do apply that analysis to this case, there's simply no question that the decision has to be reversed.

[00:05:45] Speaker 00:
Are there any factual issues that would have to be explored for us to decide the retroactivity issue?

[00:05:52] Speaker 02:
No.

[00:05:52] Speaker 02:
I don't think there are any factual issues at all, and I think that's what makes this particular case somewhat unusual in the sense that... Well, what does reversal mean in this context?

[00:06:00] Speaker 04:
We vacate, assuming you were to prevail, and we remand.

[00:06:09] Speaker 04:
Yes.

[00:06:12] Speaker 04:
Can we remand just to the agency to make a decision?

[00:06:15] Speaker 04:
I mean, what's your view of the remand or the do-over?

[00:06:18] Speaker 04:
How far back do you have to go in the history of this action?

[00:06:22] Speaker 02:
I think that the remand would be to the administrative judge ordering her to consider the case in light of the fact that she cannot consider any of the charges that occurred prior to the enactment of the statute, which in this case is all of them.

[00:06:34] Speaker 04:
No, no, no.

[00:06:38] Speaker 04:
these charges might still exist.

[00:06:41] Speaker 04:
The argument is that there ought to be a different standard of view, that there might be different time frames to consider, but agencies are still allowed before this to bring removal action, so the agency would not be precluded.

[00:06:56] Speaker 04:
My question is how far back you have to go.

[00:06:58] Speaker 04:
Do we send it back to the AJ for the AJ

[00:07:01] Speaker 04:
to then evaluate it under what your argument is, is the proper standard of preponderance and the pre-statutory changes?

[00:07:10] Speaker 02:
Yes, Your Honor.

[00:07:11] Speaker 02:
I think that the Court should reverse entirely, remand it to the agency, and demand that the agency review the case in light of this decision, which we hope will be that this Section 714 cannot be used as a way to discipline or terminate the employee in this case.

[00:07:28] Speaker 02:
because all of the conduct occurred before the statute was enacted.

[00:07:31] Speaker 02:
You're absolutely correct.

[00:07:32] Speaker 02:
There are many options that the VA has available.

[00:07:34] Speaker 00:
That would still lead them free to institute an inaction under Chapter 75 if they determined to maintain one under that.

[00:07:41] Speaker 02:
Yes, and amongst other options.

[00:07:44] Speaker 02:
Yes, Your Honor.

[00:07:44] Speaker 00:
Do you think there's any basis for us to just order since this, assuming we agree with you that we can reach it despite waiver and that it is an impermissible

[00:07:54] Speaker 00:
retroactive application and those are just assumptions I don't know if that's right or not right is there any way for us to tell the AJ to just convert this to a chapter 75 or does the agency have to start at the outset I don't know how procedurally that would occur I think the agency would have to initiate that well you have I mean you still have the charges you have the specification you have the same evidence that's true you could could we just order the board to apply the chapter 75 standards to that instead of the chapter 714 standards

[00:08:24] Speaker 02:
I am unaware of any rule that prohibits this court from doing that.

[00:08:29] Speaker 02:
So you could, but I think it would be more efficient to send it back to the agency, but you could do that.

[00:08:35] Speaker 02:
Okay.

[00:08:37] Speaker 02:
I'm out of time.

[00:08:37] Speaker 04:
Thank you, Your Honor.

[00:08:38] Speaker 04:
Let's hear from your friend here.

[00:08:41] Speaker 04:
Good morning.

[00:08:42] Speaker 04:
Good afternoon.

[00:08:50] Speaker 04:
Now, I wanted to talk to you about the statute a bit, but before that, do you have any disagreement with your friend if we were to decide this case on retroactive application, what happens then on remand?

[00:09:04] Speaker 03:
So we did not brief the topic of retroactivity, and we did not take any position on that issue.

[00:09:12] Speaker 03:
So I don't really have much to say on that.

[00:09:15] Speaker 04:
So tell us about the statute.

[00:09:17] Speaker 04:
Clearly, provision B, 714D2B, couldn't be clearer, right?

[00:09:25] Speaker 03:
The board doesn't have the authority to mitigate.

[00:09:28] Speaker 03:
Correct.

[00:09:28] Speaker 03:
And our position is not that the board can mitigate.

[00:09:32] Speaker 03:
We are aware that the statute expressly precludes mitigation.

[00:09:35] Speaker 03:
However, we believe that mitigation and assessment are distinct.

[00:09:40] Speaker 03:
And as we've stated in our brief, we believe the decision that the board is reviewing when they're reviewing an action under 714 is a decision that includes both the penalty and the conduct underlying the charge or the factual predicates to the charge.

[00:09:54] Speaker 04:
Well, sure, that's true.

[00:09:55] Speaker 04:
The action is the action.

[00:09:57] Speaker 04:
The action isn't just you stole some pens.

[00:09:59] Speaker 04:
The action is we're doing something to you.

[00:10:02] Speaker 04:
We wouldn't be here unless the agency had taken some action.

[00:10:05] Speaker 04:
So in the face of clear congressional, it's not congressional intent, it's the words.

[00:10:11] Speaker 04:
You can't mitigate.

[00:10:15] Speaker 04:
Why isn't that enough to do what the agency did here?

[00:10:19] Speaker 03:
Well, and again, it's not what the agency did.

[00:10:22] Speaker 03:
It's what the AJ can or cannot review.

[00:10:24] Speaker 03:
In this case, the AJ explicitly said that she was not able to assess whether the penalty was appropriate.

[00:10:30] Speaker 03:
And what we're arguing is that by determining whether or not substantial evidence supports the decision, the removal of the petitioner, the AJ must necessarily also assess whether the penalty that was imposed as part of that decision was reasonable.

[00:10:44] Speaker 03:
So then what meaning does B have?

[00:10:45] Speaker 03:
If you're saying that the agency does have... Reasonable or authorized?

[00:10:51] Speaker 03:
Reasonable.

[00:10:55] Speaker 05:
If you said assess and you said meant, well, AJ could say, this wasn't authorized.

[00:11:02] Speaker 05:
I might buy your assessment argument.

[00:11:08] Speaker 03:
And to answer your question, Judge Prost, what would occur in a situation like this, which would be a reversal.

[00:11:16] Speaker 03:
So you would reverse the charge.

[00:11:18] Speaker 03:
And I think this court, in a decision that was issued after this case was briefed, the mogul decision, talked about a hypothetical where an employee stole a paper clip.

[00:11:30] Speaker 03:
And an employee with 20 years of service, outstanding, everything else about the employee is outstanding, and they misused or stole a paper clip.

[00:11:39] Speaker 03:
Congress could not have intended for that employee to have no review of their removal.

[00:11:45] Speaker 03:
Under the VA's interpretation of the statute, the VA has unfettered discretion.

[00:11:49] Speaker 03:
And if Congress intended that, they could have used language that permitted that.

[00:11:54] Speaker 03:
And I think Section 714A1 is important.

[00:11:59] Speaker 04:
So how do you read the statute?

[00:12:02] Speaker 04:
So you're saying that the A.J.

[00:12:05] Speaker 04:
does have the authority to mitigate and say, no, this paperclip abuse only justified a 15-day suspension and not a removal?

[00:12:14] Speaker 03:
No, so the A.J.

[00:12:15] Speaker 03:
does not have the ability to substitute the penalty that was imposed.

[00:12:19] Speaker 03:
Instead, the A.J.

[00:12:20] Speaker 04:
could reverse, and I think the board... In other words, Congress, we know why Congress was enacting this.

[00:12:26] Speaker 04:
They wanted to toughen the standards, make it easier to remove or to discipline

[00:12:32] Speaker 04:
Veterans Affairs employees, right?

[00:12:34] Speaker 04:
There's no dispute about that.

[00:12:36] Speaker 04:
But you're suggesting that they did the reverse, which is now you're saying otherwise this person who stole paper clips under the old former statute would at least get a five-day suspension or a 15-day suspension.

[00:12:50] Speaker 04:
And under this statute, they go home free?

[00:12:52] Speaker 03:
No, they don't go home free.

[00:12:54] Speaker 03:
And I think, again, the board's interpretation of the previous version of Section 713.

[00:13:00] Speaker 04:
So just tell me, if they don't go home free, what happens to the paperclip guy under your reading of this statute?

[00:13:06] Speaker 04:
You said the AJ, you agree, we all agree, the AJ can't,

[00:13:10] Speaker 04:
change the penalty to a 15-day removal.

[00:13:12] Speaker 04:
So what should he do?

[00:13:14] Speaker 03:
What does he have to do?

[00:13:16] Speaker 03:
He would reverse it and remand it back to the agency, essentially.

[00:13:18] Speaker 03:
For what purpose?

[00:13:19] Speaker 03:
For the purposes of imposing a penalty that is warranted.

[00:13:24] Speaker 03:
Why would he remand it?

[00:13:26] Speaker 00:
I mean, this is a review.

[00:13:27] Speaker 00:
First of all, it's a different standard, so it is easier for the agency because all they have to do is prove substantial evidence for their decision, not for the charges, for the decision.

[00:13:36] Speaker 00:
And if they don't prove it by substantial evidence, generally in administrative cases, they fail to meet their burden.

[00:13:44] Speaker 00:
So it's reversed.

[00:13:46] Speaker 00:
The decision lacks substantial evidence and can't be sustained.

[00:13:49] Speaker 00:
Why would you give the agency a do-over?

[00:13:53] Speaker 03:
You know, and that's an issue that

[00:13:58] Speaker 03:
Again, it would be an issue for the board to examine on first instance.

[00:14:01] Speaker 03:
And again, I think it's telling the board promulgated regulations under 713 in which they had indicated that a similar statute where mitigation was not available for an AJ, the reversal would essentially be a remand because there's nothing precluding the agency from recharging the employee.

[00:14:19] Speaker 00:
Sure, but that was under a different statute and different things and the like.

[00:14:23] Speaker 00:
And wasn't that a senior executive service position which has all kinds of different rules applying to it anyway?

[00:14:28] Speaker 03:
Correct, it was a different statute and it applied to senior executive service employees but the statutes read very similarly and the board hasn't been able yet to interpret section 714 and we believe, especially since the board hasn't been able to interpret it, that their interpretation of 713 is the closest thing we have to what could occur in the situation like the paperclip example.

[00:14:50] Speaker 04:
But you're saying, let me just be clear, you're saying, so now you've adopted my hypothetical as well as Judge Yu, so you're saying one of two things

[00:14:58] Speaker 04:
happens under this statute.

[00:15:00] Speaker 04:
If the AJ is not persuaded that the paperclip theft was sufficient to justify a removal.

[00:15:09] Speaker 04:
They can't do anything.

[00:15:11] Speaker 04:
So you told me

[00:15:12] Speaker 04:
They can remand it to the agency and tell the agency, do a do-over.

[00:15:17] Speaker 04:
So in effect, they can't mitigate, but they can in effect tell the agency, the agency has to mitigate.

[00:15:23] Speaker 04:
Under Judge Hughes' question, he was suggesting that you don't get a remand at all, which means the employee could be arguably much better off under this statutory provision

[00:15:35] Speaker 04:
than it could under the prior one, which seems, I mean, Congress makes mistakes and maybe they made one here, but it doesn't seem to be consistent with what their intent was, right?

[00:15:44] Speaker 03:
Well, and that's where we did want to highlight that we don't believe they will be better off under the statute because, again, as Judge Hughes highlighted, the substantial evidence burden is much lower.

[00:15:55] Speaker 03:
So it's going to be much harder for an employee to challenge the removal.

[00:15:58] Speaker 03:
That's one piece of it.

[00:15:59] Speaker 04:
But we don't disagree that they will be better off if there's some concern over the penalty.

[00:16:04] Speaker 04:
Under the prior law, the agency could mitigate the penalty and say, at least we're going to suspend you for 15 days.

[00:16:11] Speaker 04:
And under this situation, even though, granted, the penalty is the standard, the burden is higher, they get nothing.

[00:16:20] Speaker 03:
It's all or nothing.

[00:16:21] Speaker 03:
No, again, because under the other standard, the board would be mitigating the penalty, and the board would be making the decision of whether or not to reduce the penalty here.

[00:16:31] Speaker 03:
So it's just a game.

[00:16:31] Speaker 03:
It would be pushed back to the AJA.

[00:16:32] Speaker 00:
But even under that prior mitigation standard, if the board

[00:16:36] Speaker 00:
found that even on one single minor sustained charge that any penalty was so disproportionate, they could order zero penalty, couldn't they?

[00:16:46] Speaker 03:
In the prior standard?

[00:16:47] Speaker 03:
In the prior standard, right.

[00:16:49] Speaker 00:
I mean, if there was a whole series of things that the guy stole a car, the guy stole a computer, the guy stole a typewriter, and for that he got a paperclip, for that he got removed.

[00:17:00] Speaker 00:
And it turned out he didn't steal the car.

[00:17:02] Speaker 00:
He didn't steal the computer.

[00:17:05] Speaker 00:
to take in a paperclip, they can say, charge is not sustained at all and we're not going to mitigate even on the paperclip to, you know, a day or something like that.

[00:17:15] Speaker 00:
There's nothing warranted here.

[00:17:17] Speaker 00:
So that's part of their decision that the decision of the agency is not supported by, in the other case, purported evidence.

[00:17:25] Speaker 00:
That's just them showing that the action they took

[00:17:30] Speaker 00:
was not warranted.

[00:17:31] Speaker 00:
Isn't that what's going on here?

[00:17:34] Speaker 00:
Congress chose to use the word decision.

[00:17:35] Speaker 00:
They did not choose to use the word the factual evidence, the charges, or the like.

[00:17:40] Speaker 00:
And they know how to do that if they want to, because in our retirement benefits cases, the factual decisions of OPM cannot be reviewed by this court.

[00:17:50] Speaker 03:
Correct and that is our argument that the decision that is being reviewed is a decision including the penalty and here again the judge explicitly stated that she didn't have the ability to even look at whether or not

[00:18:01] Speaker 03:
the charge was appropriate or the penalty was appropriate.

[00:18:06] Speaker 00:
Isn't the mitigation standard that we're talking about, this is an old power that goes all the way back to the Civil Service Commission and was always an independent power of the agency to mitigate.

[00:18:18] Speaker 00:
It's not wrapped up necessarily with just whether some of the charges are proven.

[00:18:25] Speaker 00:
It goes back to the fact that even if every single one of the charges were proven, the Civil Service Commission and then by succession, the MSPB could mitigate.

[00:18:34] Speaker 00:
It seems to me that the best way to read this is decide they don't want the board engaging in that mitigation authority anymore, but they're still subjecting the actual decision, which is not just the facts.

[00:18:46] Speaker 00:
It's the ultimate decision, as it says in the statute, to remove, demote, or suspend to full board review.

[00:18:53] Speaker 00:
That's correct, and that is what we are... How could it be full board review if all they get to do is review the facts underlying the charges?

[00:19:00] Speaker 03:
That's correct.

[00:19:01] Speaker 03:
And I see my time is up.

[00:19:04] Speaker 03:
You can finish answering, Judge.

[00:19:05] Speaker 03:
That's correct, and that is what we are arguing, that the board must be able to necessarily review or assess the penalty when making that decision on whether or not the decision

[00:19:16] Speaker 03:
was supported by substantial evidence and I think again while Douglas does not apply here, the board's decision in Douglas demonstrated that historically the board and the Civil Service Commission always interpreted the term decision as including an assessment of the penalty and what we believe should have happened here and should happen in the future is when an A.J.

[00:19:35] Speaker 03:
is determining whether or not substantial evidence supports a decision imposed under section 714, they still need to review whether or not the penalty

[00:19:44] Speaker 03:
was proper.

[00:19:46] Speaker 03:
Thank you.

[00:19:54] Speaker 01:
Good afternoon, Your Honors.

[00:19:55] Speaker 01:
Brinton Lucas for the federal government.

[00:19:56] Speaker 01:
May it please the court.

[00:19:57] Speaker 01:
I'd like to start with the statutory mitigation issue.

[00:20:00] Speaker 04:
If you don't mind, just because you go in our order.

[00:20:03] Speaker 04:
We started with retroactivity, so why don't we start with retroactivity if you don't mind.

[00:20:07] Speaker 04:
Certainly, Your Honor.

[00:20:08] Speaker 04:
So your view is

[00:20:11] Speaker 04:
they waived their right.

[00:20:13] Speaker 04:
Yes.

[00:20:13] Speaker 04:
Do you agree that, yes, assuming they did, we as the Court of Appeals has the authority to consider the retroactivity question, notwithstanding that it wasn't raised below?

[00:20:26] Speaker 01:
I believe your court does have exceptions to allowing it to address issues not raised below, but there isn't any basis in the record below or that petitioner or his amicus have presented for why this court should address the retroactivity issue.

[00:20:40] Speaker 04:
Well, here's one.

[00:20:42] Speaker 04:
So tell me why this doesn't, ought not to at least carry the day or be substantial.

[00:20:46] Speaker 04:
The board hasn't had a quorum in a year or two.

[00:20:49] Speaker 04:
They may not have one in the foreseeable future.

[00:20:53] Speaker 04:
So you've got administrative judges deciding this, and there's a split in authority in the current cadre of administrative judges.

[00:21:00] Speaker 04:
Some are saying it was retroactive.

[00:21:02] Speaker 04:
Some are saying it wasn't.

[00:21:04] Speaker 04:
So we are looking at the possibility of people just going away and getting inconsistent results, or are it just coming up to us again and again and again?

[00:21:13] Speaker 04:
So why isn't that at least compelling enough to say, yeah, we ought to think about taking a look and resolving this issue now?

[00:21:19] Speaker 01:
I think the reason is because it would better come up under the ordinary procedures if an administrative judge, even without a quorum on the board, addressed the issue in the first instance by a party who had preserved it.

[00:21:30] Speaker 04:
Why?

[00:21:30] Speaker 01:
Because in that case, you would have a reasoned opinion by an administrative judge who tackled this issue presented by a particular petitioner.

[00:21:39] Speaker 00:
But it's a pure legal issue, right?

[00:21:40] Speaker 00:
You agree it's a pure legal issue.

[00:21:42] Speaker 00:
There are no facts that need to be explored by the administrative judges.

[00:21:45] Speaker 00:
There's nothing else that needs to be here.

[00:21:47] Speaker 00:
We can decide this.

[00:21:49] Speaker 00:
and decided as a legal issue, whether it applies retroactively to conduct before the act was passed or not, right?

[00:21:56] Speaker 01:
It is a legal issue, Your Honor, but this Court has considered legal issues to be forfeited, and we believe that here.

[00:22:02] Speaker 01:
But setting waiver aside, I'm happy to turn to the merits of the retroactivity issue.

[00:22:06] Speaker 01:
And I think it's important to split this up into two parts.

[00:22:08] Speaker 01:
So the first part, petitioner complains about that the mitigation bar was applied retroactivity.

[00:22:15] Speaker 01:
It seems he's essentially abandoned that in his reply brief.

[00:22:17] Speaker 01:
He doesn't address that issue at all.

[00:22:19] Speaker 01:
And it's telling, because the mitigation bar is a quintessential jurisdictional rule that should not be treated as having any retroactive effect.

[00:22:25] Speaker 04:
Yeah, but we all know the differences.

[00:22:27] Speaker 04:
And the stark differences, the differences begin with the timetable from the notice of proposal and so forth.

[00:22:34] Speaker 04:
That's a difference.

[00:22:36] Speaker 04:
He had shorter time in his case because the statute was retroactively applied, right?

[00:22:41] Speaker 04:
Certainly, Your Honor, but I believe.

[00:22:42] Speaker 04:
And he did have the different burden.

[00:22:44] Speaker 04:
And the burden didn't just come up.

[00:22:46] Speaker 04:
The burden shift isn't just with respect to the AJ, right?

[00:22:50] Speaker 04:
Didn't the deciding official also apply a substantial evidence burden under the new statutory provision?

[00:22:55] Speaker 04:
I don't recall.

[00:22:56] Speaker 01:
A few points on that, Your Honor.

[00:22:58] Speaker 01:
Yes, the VA director did apply a substantial evidence burden, but that's not in the statute.

[00:23:06] Speaker 01:
So to speak, the only thing the statute addresses is substantial evidence on appellate review.

[00:23:10] Speaker 01:
And we think for the purposes of administrative appellate review, changes in the procedures and

[00:23:16] Speaker 01:
The standards of appellate review are classic procedural issues.

[00:23:18] Speaker 01:
So let me just give you an analogy.

[00:23:20] Speaker 00:
But the problem here is it's not just a change in a burden of proof.

[00:23:25] Speaker 00:
If you take your whole reading of this statute altogether and your view prevails on how the statute operates, you are giving them far less rights onto what they get review on.

[00:23:37] Speaker 00:
Your view is they only get review on the factual evidence supporting the charges, not the ultimate decision itself.

[00:23:44] Speaker 00:
And isn't that quintessentially a substantive change in the authority of the board and their due process rights?

[00:23:52] Speaker 01:
No, Your Honor.

[00:23:53] Speaker 01:
We believe that this is a change in jurisdiction as to who gets to review the particular instance.

[00:23:58] Speaker 01:
And all it is saying is that the administrative judge

[00:24:01] Speaker 01:
cannot mitigate the penalty.

[00:24:02] Speaker 00:
That doesn't make any sense under Loudermill.

[00:24:04] Speaker 00:
The whole point of Loudermill is you get initial pre-termination rights that are speedy and quick if you get a full post-termination review by an independent adjudicator.

[00:24:16] Speaker 00:
And what your reading of this statute does is take away a full independent review by an independent adjudicator and gives them a much more limited look into what the employee did.

[00:24:28] Speaker 00:
I don't see how that's not even, that's even remotely procedural.

[00:24:33] Speaker 01:
Your Honor, I think it's important to separate out two issues, the retroactivity versus the due process.

[00:24:37] Speaker 01:
With respect to due process, I'm unaware of any- But your arguments work against each other.

[00:24:42] Speaker 00:
If you prevail on your merits of the reading of the statute, then what they're getting at the end of the day at the MSPB is a much less in form of review and much less in due process rights than they got before.

[00:24:56] Speaker 00:
Isn't that true?

[00:24:56] Speaker 00:
If before they got a full review of the charges, the evidence supporting them, the reasonable, so the penalty on whether it's negotiated, your view now is all the board gets to do is look at the charges and say, yeah, up or down, they're supported or not.

[00:25:14] Speaker 00:
They don't get to review a reasonable list.

[00:25:15] Speaker 00:
They don't get to mitigate.

[00:25:17] Speaker 00:
Isn't that a drastically substantive difference in the scope of independent post-decision review?

[00:25:24] Speaker 01:
I don't think it's any different from perhaps the example that was given in Landgraf itself where the Supreme Court discussed the statutory issue of a jury trial right being given.

[00:25:32] Speaker 01:
That's obviously going to make a significant difference in a lot of cases if you elect to have a jury trial right rather than a bench trial.

[00:25:38] Speaker 01:
It may affect a particular claimant quite dramatically in making it a lesser.

[00:25:42] Speaker 00:
But that just affects the adjudicator.

[00:25:44] Speaker 00:
It doesn't affect the scope of the review.

[00:25:47] Speaker 01:
Well, with respect to the scope of the review, Your Honor, I would just analogize this.

[00:25:52] Speaker 01:
It's outside of this context, but in the Fourth Amendment context.

[00:25:55] Speaker 01:
So when the Supreme Court said that it was clear that decisions about reasonable suspicion and probable cause were reviewed for de novo review rather than clear error,

[00:26:07] Speaker 01:
they told the Court of Appeals to apply that new standard to cases on review.

[00:26:10] Speaker 01:
That's a significant shift in how things are reviewed on appeal, and it will affect the rights of the particular litigant.

[00:26:16] Speaker 00:
But it didn't change the content of what reasonableness is, did it?

[00:26:21] Speaker 00:
No, and neither does... Yes, it does.

[00:26:24] Speaker 00:
It means they only get the facts underlying the penalty, not the whole ball of wax reviewed.

[00:26:30] Speaker 01:
Your Honor, if I can extend my analogy a little bit further,

[00:26:33] Speaker 01:
What they're saying is that it's the same shift as from a clear error to de novo.

[00:26:38] Speaker 01:
Under clear error review, you're not going to be able to take certain factual findings into account unless they're clearly erroneous.

[00:26:43] Speaker 01:
Whereas under de novo, you don't expect... But you still get to challenge them here.

[00:26:46] Speaker 00:
They don't get to challenge it at all.

[00:26:47] Speaker 00:
It's out.

[00:26:49] Speaker 00:
It doesn't matter what burden of proof, what standard of review.

[00:26:52] Speaker 00:
They don't get to challenge under your view the reasonableness of the penalty.

[00:26:56] Speaker 01:
Your Honor, and again, I would submit that with respect to jurisdictional changes as to what court or what administrative agency gets to hear,

[00:27:02] Speaker 01:
that would not be inherently retroactive, that would be the sort of classic jurisdictional change the Supreme Court discussed in Landgraf.

[00:27:10] Speaker 00:
Why don't we just move to the merits?

[00:27:11] Speaker 00:
I mean, to me, I don't understand your retroactivity argument at all, because it certainly seems to me that it's a substantive change.

[00:27:19] Speaker 00:
Why is your reading of the statute right when the statute says the administrative judge shall uphold the decision of the secretary to do certain actions if supported by substantial evidence?

[00:27:30] Speaker 00:
It doesn't say uphold it if the facts are supported by substantial evidence.

[00:27:35] Speaker 00:
And there's a difference between facts and the decision, isn't there?

[00:27:38] Speaker 01:
Your Honor, I think the key phrase in that statute is, if supported by substantial evidence.

[00:27:44] Speaker 01:
And we know that substantial evidence is primarily a factual review.

[00:27:48] Speaker 04:
No, no, no.

[00:27:49] Speaker 04:
Let's look at the statute.

[00:27:50] Speaker 04:
The statute says if the decision is supported by substantial evidence.

[00:27:54] Speaker 04:
And the decision in the same sentence in the earlier part is characterized as the decision to remove, demote, or suspend an employee.

[00:28:03] Speaker 04:
I don't see how that's limiting, the word decision is limiting.

[00:28:07] Speaker 04:
It says exactly what Judge Hughes just said, that the decision includes the penalty.

[00:28:12] Speaker 01:
Certainly, Your Honor.

[00:28:13] Speaker 01:
So let me try and clarify this if I can.

[00:28:15] Speaker 01:
The decision, when you're reviewing it for substantial evidence, is you would look at to see whether substantial evidence supports the underlying conduct that the Secretary chose.

[00:28:25] Speaker 00:
You're entirely rewriting the statute with those words.

[00:28:29] Speaker 00:
I mean, isn't this directing the administrative judge to look whether substantial evidence supports the ultimate decision to remove, suspend, or the like?

[00:28:38] Speaker 00:
That's what the statute says.

[00:28:40] Speaker 01:
No, Your Honor, respectfully, I don't think that is.

[00:28:41] Speaker 00:
And I would just point you to Douglas, where... Can you look at the statute?

[00:28:44] Speaker 00:
That's what it says.

[00:28:46] Speaker 00:
Shall uphold the decision to remove, demote, or suspend if supported by substantial evidence.

[00:28:51] Speaker 01:
Yes, Your Honor, and the way that this would work is if the decision is supported by substantial evidence... What decision?

[00:28:57] Speaker 04:
The decision to demote or the decision to suspend?

[00:29:01] Speaker 04:
That is a portion of the decision.

[00:29:04] Speaker 04:
That's the decision.

[00:29:05] Speaker 04:
The decision encompasses the penalty.

[00:29:09] Speaker 01:
Yes, Your Honor, but just so I can make this clear, the substantial evidence part of it goes to the underlying charges because that... How do we know that?

[00:29:15] Speaker 01:
Because substantial evidence is primarily a factual determination and you look at

[00:29:22] Speaker 05:
Sure, it's primarily a factual determination, but the facts can include application of certain factors, for example, right, by a deciding officer.

[00:29:30] Speaker 01:
Isn't that a fact?

[00:29:32] Speaker 01:
I don't think so, Your Honor.

[00:29:33] Speaker 01:
And let me just point you to Douglas, where it discusses this particular issue.

[00:29:36] Speaker 01:
So it says, substantial evidence, you review for the factual determinations underlying the charge.

[00:29:41] Speaker 01:
Then Douglas, in a separate section, goes on and say, you apply a reasonableness review, and that is an entirely substantive, different review.

[00:29:48] Speaker 01:
But substantial evidence alone is you are just looking at the underlying facts to make sure that the Secretary's decision is factually supported.

[00:29:56] Speaker 01:
And that carves out a role for the board to engage in review.

[00:29:59] Speaker 04:
Can I just ask you just this is really just a neutral question under your reading of the government's reading of the statute What is our authority do we get to still on appeal even though the agency?

[00:30:12] Speaker 04:
I mean sorry the board or the AJ do not have the authority to mitigate and in your view they're really just Passing on whether the facts support taking charges.

[00:30:23] Speaker 04:
What do we get to do?

[00:30:24] Speaker 04:
Don't we get to under arbitrary and capricious also review a

[00:30:28] Speaker 04:
the level of the penalty applied to the conduct?

[00:30:31] Speaker 01:
Your Honor, I don't think that's been the case, at least with respect to Chapter 43 cases.

[00:30:36] Speaker 01:
And that is what we understand.

[00:30:37] Speaker 00:
You know what?

[00:30:37] Speaker 00:
The Chapter 43 cases don't get you very far.

[00:30:40] Speaker 00:
Because Chapter 43 was a special procedure designed to give employees plenty of due process.

[00:30:46] Speaker 00:
Before the termination decision, they were given an opportunity to improve.

[00:30:50] Speaker 00:
They had to be given clear guidelines and a time to see if they could meet it.

[00:30:54] Speaker 00:
And the decision at the end of the day is,

[00:30:57] Speaker 00:
if they don't meet them, that they can't do their job.

[00:31:01] Speaker 00:
There's no mitigation of, well, you can't do your job, so we're only going to send you out for 40 days.

[00:31:06] Speaker 00:
If you can't do your job, you're out.

[00:31:08] Speaker 00:
So I don't understand why those Chapter 43 cases are all that analogous when what we're talking about here is misconduct and how proportional a agency decision is to punish misconduct.

[00:31:22] Speaker 01:
Certainly, Ross.

[00:31:23] Speaker 01:
So let me explain if I can.

[00:31:24] Speaker 01:
The Chapter 43 cases and the discussion in Lisiaki of the performance improvement period and all of that, none of that had anything to do with Lisiaki's holding that and upon discovering an implicit mitigation bar that the board was not allowed to review for reasonableness or in applying the Douglas Factors.

[00:31:40] Speaker 01:
Those were entirely separate.

[00:31:41] Speaker 01:
They were discussed.

[00:31:42] Speaker 01:
They were not part of the holding.

[00:31:44] Speaker 01:
And with respect to the procedures, I think it's very clear that Lisiaki made

[00:31:48] Speaker 01:
quite clear distinction between due process procedures, notice, and opportunity to respond and the like, and the fact of the performance improvement period, which was simply another measure.

[00:31:59] Speaker 01:
There's nothing in that, in Lisiecki, that would say this changes our holding, depending on whether there's a performance improvement plan.

[00:32:05] Speaker 01:
In fact, Lisiecki discussed those cases.

[00:32:07] Speaker 00:
But in Chapter 43 cases, you have to have a performance improvement plan.

[00:32:12] Speaker 00:
It's part of the statutes and the regulations supporting it.

[00:32:16] Speaker 00:
It's not optional.

[00:32:17] Speaker 01:
Certainly, Your Honor, but we don't think that has anything to do with the mitigation authority.

[00:32:21] Speaker 00:
And to our knowledge, neither petitioner nor his amicus have provided an explanation for how you have mitigation of an agency decision where the agency removes somebody because they're incompetent.

[00:32:32] Speaker 00:
The board agrees that they're incompetent, but yet they'd mitigate it.

[00:32:37] Speaker 00:
That doesn't make any sense.

[00:32:38] Speaker 00:
It's just a matter of logic that there's no mitigation in performance cases.

[00:32:42] Speaker 00:
The same is just not true of misconduct cases where you are punishing people and the severity of the punishment depends upon the severity of the action.

[00:32:53] Speaker 00:
Can you think of an instance where an agency gives somebody a 180-day performance improvement period with clear specific guidelines and quantitative factors and the like.

[00:33:05] Speaker 00:
At the end of it, this person fails every single one of them and the agency says, you're out.

[00:33:10] Speaker 00:
The board says, yeah, they failed every single one of them.

[00:33:15] Speaker 00:
The person is unable to do their job and they would mitigate.

[00:33:20] Speaker 00:
Your Honor, how could you mitigate somebody that can't do their job back into their job?

[00:33:25] Speaker 04:
Well, I hate to do your job, but isn't one of the answers possibly that you would demote them rather than remove them?

[00:33:31] Speaker 00:
Well, sure, that applies too, but that's the agency's choice to determine.

[00:33:35] Speaker 00:
Sorry, I don't mean to answer your question.

[00:33:38] Speaker 00:
You're a little unlucky because I did this for 20 years.

[00:33:42] Speaker 04:
And I did it too.

[00:33:44] Speaker ?:
Yes.

[00:33:44] Speaker 00:
And I'm sitting here thinking, in the Army, they just make him a cook.

[00:33:49] Speaker 00:
But even the demotion is not really mitigation.

[00:33:51] Speaker 00:
It's the agency's obligation, if they have procedures in place, is it not, to put somebody into a position they can perform?

[00:33:58] Speaker 00:
It's not really mitigation.

[00:33:59] Speaker 00:
It's putting them, if they were promoted beyond their means or the like, back into a position that they can actually accomplish.

[00:34:07] Speaker 00:
The board can't do that.

[00:34:09] Speaker 01:
With respect to the mitigation under Chapter 43 cases,

[00:34:13] Speaker 01:
The fact that Douglas held this, and yes, to the extent there are different procedures in Chapter 43, that wasn't at all a part or key aspect of the holding of the Chapter 43 seminal press and of Lisiecki.

[00:34:25] Speaker 00:
I mean, we can all read Lisiecki.

[00:34:26] Speaker 00:
I don't think you're going to convince me, at least, on differing what that case means.

[00:34:31] Speaker 00:
So can you get back to?

[00:34:33] Speaker 04:
Can I ask, can I get back to one of the statutory questions that we had before?

[00:34:37] Speaker 04:
I think we covered this with your friend, but I don't recall covering it with you, which is, under your reading of the statute, let's say so far, does the AJ, what is the AJ supposed to do if they say, this is crazy, they fired this guy for picking up, you know, stealing a paper clip, but I don't have authority to mitigate?

[00:34:57] Speaker 04:
Does the AJ, we know the AJ can't mitigate,

[00:34:59] Speaker 04:
In your reading of the statute, does the AJ still get to look at the penalty and send it back to the agency and say, you need to take another look at this or is it over?

[00:35:10] Speaker 01:
I see I'm out of time.

[00:35:11] Speaker 04:
Please continue.

[00:35:13] Speaker 01:
No, Your Honor.

[00:35:14] Speaker 01:
The AJ would look at that.

[00:35:15] Speaker 01:
And if the charges were supported by substantial evidence, then he could not mitigate or mitigate through remand.

[00:35:23] Speaker 00:
And I do think- No, no, no, no.

[00:35:25] Speaker 00:
I don't think that's the question.

[00:35:26] Speaker 00:
The question is the AJ determines that the ultimate decision is not supported by substantial evidence because the penalty is so disproportional to the underlying misconduct that it can't be sustained.

[00:35:37] Speaker 00:
If that's the decision of the AJ, what does the AJ do?

[00:35:42] Speaker 00:
It finds the decision unsustained and the person that actions overturned, or it sends it back to the agency for a do-over.

[00:35:49] Speaker 04:
Or is it forced to affirm simply because, yes, he did prove that he once took a paperclip, and you can't bother yourself with whether he should have been fired for that?

[00:36:01] Speaker 01:
Yes, Your Honor, that would be the answer.

[00:36:03] Speaker 01:
And I would just like to underscore.

[00:36:04] Speaker 00:
And can I get your answer if you take that option off the table of the prior two options, what the government prefers?

[00:36:10] Speaker 01:
Could you please, with all respect, just give me the two of them.

[00:36:13] Speaker 00:
Either the action's not sustained and so it's not sustained, the employee has to be put back to work, which is what happens when an action's not sustained, or the AJ sends it back to the agency to consider what further course it would take.

[00:36:28] Speaker 01:
The latter, Your Honor.

[00:36:29] Speaker 00:
And where's the statutory support in the statute or basic principles of administrative law for that?

[00:36:36] Speaker 01:
I think since this is a fallback and I think this just sort of underscores why

[00:36:40] Speaker 01:
This isn't allowed under the statute.

[00:36:42] Speaker 01:
That presented with a case where substantial evidence supports the underlying charges, the board can't mitigate or can't do the same thing through the back door by simply sending it back or just... Substantial evidence, again, live with the hypothetical.

[00:36:56] Speaker 00:
It's not substantial evidence doesn't support the underlying charges.

[00:37:00] Speaker 00:
That's the way you want to read the statute and the words you want to put in it.

[00:37:03] Speaker 00:
Substantial evidence doesn't support the decision to remove.

[00:37:08] Speaker 01:
Right, and if substantial evidence doesn't support the decision, it's because the facts underlying the charges aren't supported.

[00:37:14] Speaker 00:
No, I know you want to confine this to facts, but certainly there's Supreme Court precedent and the like that when it's talking about an agency decision, it has to be the decision itself.

[00:37:27] Speaker 00:
And if it is so grossly misproportionate to the underlying charges, then that agency decision can't be sustained.

[00:37:36] Speaker 00:
Isn't that the whole basis for the Douglas Factors and the like is that these are APA cases and that on appeal to us, we're going to do an APA-like review and therefore any agency decision is going to be subject to arbitrary and capricious review by us as well.

[00:37:54] Speaker 01:
I would just like to underscore with respect to the Douglas Factors, one of the Douglas Factors and one of the key aspects of the analysis is the efficiency of the service standard.

[00:38:02] Speaker 01:
And there's no efficiency of the service standard here, just like in the Chapter 43 contact.

[00:38:06] Speaker 00:
But it still has to be supported by substantial evidence.

[00:38:08] Speaker 00:
And it doesn't just say the facts.

[00:38:10] Speaker 00:
Let's just assume I disagree with you on that.

[00:38:12] Speaker 00:
You can stop wasting your time arguing that that actually means facts.

[00:38:17] Speaker 00:
The AJ gets to review the whole thing for whether it's supported by substantial evidence, including whether the penalty is disproportionate.

[00:38:25] Speaker 00:
What happens then?

[00:38:27] Speaker 01:
On that premise, then, if he concludes that it's not supported by substantial evidence, he can't uphold it, and then presumably would send it back, as in any other sort of context.

[00:38:39] Speaker 00:
Is that what happens in regular APA cases when an action's not sustained?

[00:38:42] Speaker 00:
I thought it's just not sustained.

[00:38:44] Speaker 00:
If the reviewing court finds some procedural deficiency or something that was unexplained, then they can send it back.

[00:38:53] Speaker 00:
But if the decision's not supported, then doesn't it just get reversed?

[00:38:58] Speaker 01:
That's the general matter but sometimes in cases there is remand without vacature and in that context.

[00:39:04] Speaker 00:
I suppose your hook could be here that really implicitly what's happening is the AJ is finding that the decision to remove wasn't explained enough so they need to or the proportion of the penalties and they need to go back and think about it and give a better explanation of why a certain action should be taken and implicit in as that as they can reconsider.

[00:39:25] Speaker 01:
Certainly, Your Honor, under the theory that substantial evidence review includes some sort of reasonableness component, then I think we would analogize this to arbitrary and

[00:39:34] Speaker 00:
So we've been talking about this.

[00:39:36] Speaker 00:
Let's assume we even agree with you that this only allows AJs to review the underlying charges.

[00:39:42] Speaker 00:
And so the AJ, like in this case, said, you know, I didn't sustain some of these.

[00:39:47] Speaker 00:
I sustained some of these.

[00:39:49] Speaker 00:
I'm going to sustain the penalty because I don't think I have any room.

[00:39:54] Speaker 00:
We review this under a typical ABA standard, right?

[00:39:57] Speaker 00:
Yes, Your Honor.

[00:39:58] Speaker 00:
And you don't read the statute as reading out our arbitrary and capricious review.

[00:40:02] Speaker 00:
Your Honor, it would be strange for this court to be able to review something that the underlying judge or the, excuse me, administrative judge... Would it also be really strange to read out APA review, which is specifically somewhere in Title 77, I believe, and they didn't change Title 77 for these cases?

[00:40:19] Speaker 01:
Your Honor, we're not asking you to rule out APA review.

[00:40:22] Speaker 01:
We're just asking that the ordinary procedures be followed.

[00:40:25] Speaker 01:
And I think in the Chapter 43 context, there's no mitigation either by the administrative judge or by this court with respect to a penalty.

[00:40:32] Speaker 01:
So we think the same would apply here.

[00:40:35] Speaker 05:
Isn't the core of your argument that the intent of the national legislature was to drastically reduce the existing rights of VA leadership

[00:40:49] Speaker 05:
so that they could be removed as quickly as possible and that barring the Constitution, the legislature could do as it pleased.

[00:41:05] Speaker 01:
I think without framing it as drastically reducing rights, but changing the procedures so that the VA could quickly remove employees who were engaged in misconduct within the bounds of the Constitution, then yes, I think that is the underlying focus of the VA Accountability Act.

[00:41:20] Speaker 00:
Isn't there a constitutional process, a problem here?

[00:41:22] Speaker 00:
You took my follow-up.

[00:41:25] Speaker 00:
Sorry.

[00:41:25] Speaker 05:
Go ahead and ask it.

[00:41:28] Speaker 05:
But go ahead.

[00:41:28] Speaker 05:
Isn't there a constitutional problem?

[00:41:31] Speaker 01:
Not at all, Your Honor.

[00:41:32] Speaker 01:
Petitioner here received ample procedural due process before his termination.

[00:41:38] Speaker 00:
We're not talking about pre-termination.

[00:41:40] Speaker 00:
We're talking about post-termination.

[00:41:42] Speaker 00:
Isn't that kind of the gist of all of this is you get much slower

[00:41:48] Speaker 00:
less fulsome procedures pre-termination if you get fulsome post-termination procedures.

[00:41:54] Speaker 00:
And clearly here, this statute tightens up timeframes to the extent it allows the agency to sustain it under a lower burden, lots of those kind of things.

[00:42:03] Speaker 00:
I think you probably have pretty good arguments on all that stuff as long as it gets a fulsome review post-termination.

[00:42:11] Speaker 00:
But your view is it doesn't get that full view post-termination either.

[00:42:15] Speaker 00:
Isn't that a violation of due process?

[00:42:18] Speaker 01:
No, Your Honor, a few points.

[00:42:20] Speaker 01:
First, petitioner has not pointed to any authority, and we're unaware of any where it violates the procedural due process provision to have limits on post-termination review.

[00:42:30] Speaker 01:
And secondly, it's not completely... They have a property right in their employment.

[00:42:36] Speaker 01:
Exactly.

[00:42:36] Speaker 00:
No one is disputing that, Your Honor, but the question is whether... And you're saying that their property right in continued employment

[00:42:43] Speaker 00:
can be taken away without anybody reviewing the reasonableness and the proportionality of the penalty compared to the actual misconduct.

[00:42:56] Speaker 00:
Any independent adjudicator.

[00:42:57] Speaker 00:
And I think if you look at those employment cases, they all emphasize that post decision review

[00:43:06] Speaker 00:
is usually done by an independent adjudicator.

[00:43:08] Speaker 00:
Your view of the statute takes away the right to have an independent adjudicator review proportionality.

[00:43:15] Speaker 01:
Your Honor, that is true, and all that is the same is true with respect to Chapter 43 actions.

[00:43:19] Speaker 01:
So if that violates the Constitution, then Chapter 43 actions presumably would violate the Constitution, too.

[00:43:25] Speaker 00:
Let's assume I just don't agree that your Chapter 43 analogy works, because there's a difference between performance, which is an up or down answer, and misconduct, which can be punished by a range of penalties.

[00:43:40] Speaker 01:
Again, Your Honor, I understand that point, but I don't think it goes to any sort of procedural due process analysis.

[00:43:46] Speaker 01:
And at the end of the day, petitioners have yet to articulate an explanation for why Chapter 40... Okay, let me ask you another hypothetical.

[00:43:53] Speaker 00:
Congress decides this is not working well enough, and they say, you know what, the agency gets to decide this, no review whatsoever after the fact.

[00:44:03] Speaker 00:
Not even limited review, no review whatsoever.

[00:44:06] Speaker 00:
In your view, isn't that just another taking away more procedures, but they still have procedural due process before the termination decision?

[00:44:14] Speaker 00:
Yes, Your Honor.

[00:44:15] Speaker 00:
And so you think that Congress can take away tenured federal employees' properties rights and make it apply retroactively to people that already have existing property rights?

[00:44:27] Speaker 01:
Again, your honor you have a case for that because I'm pretty sure that it's inconsistent with a half a dozen Supreme Court cases Again, your honor just to be clear and as you pointed out we have a good case on the pre termination process and I'm unaware of any of the post Termination cases that would say that this sort of scheme would be unconstitutional employees have to have post termination rights, I mean that's in louder middle, I think I

[00:44:55] Speaker 01:
Your Honor, in Loudermill, it discusses the balance between pre-termination and post-termination.

[00:44:59] Speaker 00:
Yes, but implicitly, the reason you get to have expedited and less than fulsome procedures pre-termination is the assumption that you get fulsome post-termination procedures.

[00:45:10] Speaker 00:
And you just told me that Congress can take away an employee with due process property rights in their job any kind of post-termination proceeding.

[00:45:19] Speaker 00:
That seems to be a sweeping, extraordinary statement.

[00:45:23] Speaker 01:
A few points here on our first, if the pre-termination procedures were sufficient, then there would not be a need for any sort of post-termination review.

[00:45:31] Speaker 00:
But secondly, in this case, it is not- But you're not arguing that they meet the post-termination standards of being performed by an independent adjudicator with the right to present evidence and all that kind of stuff.

[00:45:43] Speaker 00:
That clearly doesn't happen at the VA.

[00:45:45] Speaker 01:
Your Honor, at the VA, Petitioner did have a significant chance.

[00:45:48] Speaker 01:
He was given an extension of time to respond with a lengthy reply and over 300 pages of exhibits.

[00:45:54] Speaker 01:
Didn't get an independent adjudicated decision, though, did he?

[00:45:58] Speaker 01:
It was adjudicated by the VA, who carefully reviewed it.

[00:46:01] Speaker 01:
And to the extent, I'm unaware of a holding that says that any time an administrative agency adjudicates something that's not an independent decision, I think that would be a remarkable sea change in the law.

[00:46:14] Speaker 01:
Thank you very much.

[00:46:15] Speaker 01:
Thank you, Your Honors.

[00:46:20] Speaker 02:
Thank you, Your Honors.

[00:46:21] Speaker 02:
I'll be very brief.

[00:46:23] Speaker 02:
First of all, I'm quite certain that Congress cannot strip all federal employees from having any judicial review of decisions made against them.

[00:46:32] Speaker 04:
And if Congress wanted to do that, it could have made... Well, is it enough that we get to review under arbitrary capricious the APA standard?

[00:46:39] Speaker 04:
Is that enough?

[00:46:40] Speaker 02:
I'm not arguing that point.

[00:46:41] Speaker 02:
We're talking about appellate review, yes.

[00:46:43] Speaker 02:
I'm simply saying that if Congress decided to leave it at once the agency makes a decision, it's over.

[00:46:49] Speaker 02:
That can't be constitutional.

[00:46:50] Speaker 04:
Well, nothing we're talking about in this statute speaks to our authority.

[00:46:54] Speaker 02:
Yes.

[00:46:54] Speaker 02:
And the only other point I wanted to make, Your Honor, is that I was thinking about what is the best in this case if the court is planning to reverse a remand.

[00:47:02] Speaker 02:
I believe that the court should reverse

[00:47:05] Speaker 02:
and send it back to the agency, that would have the effect of reinstating the employee.

[00:47:10] Speaker 02:
But of course, the agency has a number of mechanisms available to it to recharge the employee if it so choose to do so.

[00:47:18] Speaker 00:
I mean, if we find that it was applied impermissibly, retroactively, they could always charge it under Chapter 75.

[00:47:25] Speaker 00:
Yeah, exactly, Your Honor.

[00:47:26] Speaker 02:
That's right.

[00:47:28] Speaker 02:
Unless there are questions, that's all I have.

[00:47:29] Speaker 04:
Thank you.

[00:47:30] Speaker 04:
Thank you, Your Honor.