[00:00:05] Speaker 02:
We have five cases on the calendar this morning, a government employee case from the MSPB, three patent cases, two of them from the TTAB and one from a district court, and a case from the Court of Federal Claims that is being submitted in the briefs and therefore will not be argued.

[00:00:27] Speaker 02:
Our first case, if I pronounce it correctly, is Uribe.

[00:00:33] Speaker 02:
Maribelia Uribe versus Department of Homeland Security, 2018-14-15.

[00:00:44] Speaker 02:
Council, we are ready when you are.

[00:00:46] Speaker 02:
Would you pronounce your name for us, please?

[00:01:04] Speaker 00:
Your Honor, we're here in reference to Marivela Uribe versus or appealing her removal from the Department of Homeland Security.

[00:01:14] Speaker 00:
Pronounce her last name one more time.

[00:01:17] Speaker 00:
Yes, sir.

[00:01:17] Speaker 00:
Uribe.

[00:01:18] Speaker 00:
Uribe.

[00:01:20] Speaker 00:
OK.

[00:01:20] Speaker 00:
Thank you.

[00:01:24] Speaker 00:
This particular case concerns several charges and specifications as to Ms.

[00:01:30] Speaker 00:
Uribe's conduct.

[00:01:33] Speaker 00:
It is a conduct case.

[00:01:35] Speaker 02:
But they're all fact-based, aren't they?

[00:01:38] Speaker 02:
And we have to give deference on facts.

[00:01:41] Speaker 00:
Well, Your Honor, let's put it this way.

[00:01:45] Speaker 00:
It's a fact that she received a letter of reprimand.

[00:01:48] Speaker 00:
However, it's also a fact that they took three years to investigate a self-inquiry.

[00:01:57] Speaker 02:
But that isn't the issue.

[00:02:00] Speaker 02:
The issue is whether

[00:02:02] Speaker 02:
the board erred in removing her when she had been found to have misused a database allowing family to

[00:02:19] Speaker 02:
committed to the United States without proper procedure, associating with people who have been engaged in criminal activity, providing inaccurate statements.

[00:02:32] Speaker 02:
These are all fact questions.

[00:02:36] Speaker 00:
Well, they are fact questions, Your Honor, but I don't believe it's that simple.

[00:02:40] Speaker 00:
That, OK, this is a fact, and this is the way we're going to interpret it.

[00:02:43] Speaker 00:
There's an interpretation to that fact.

[00:02:47] Speaker 00:
We can both see the same thing and have different opinions about it.

[00:02:50] Speaker 02:
We don't review witnesses.

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We can't judge demeanor.

[00:02:54] Speaker 02:
We have to give deference to the board.

[00:02:57] Speaker 00:
Yes, but there's some certain facts that we don't believe were properly applied.

[00:03:00] Speaker 00:
And we don't believe it really applied.

[00:03:02] Speaker 00:
For example, they want you to believe that she made all these text inquiries.

[00:03:12] Speaker 00:
and that they were made however it has to be looked at, we believe, in order to be fair to her and to be fair to the doctrine cited in, I'm sorry, it escaped me.

[00:03:28] Speaker 01:
Let me ask you, let me help focus that, if I may.

[00:03:32] Speaker 01:
Yes, sir.

[00:03:33] Speaker 01:
What's before us is the decision of the MSPB.

[00:03:38] Speaker 01:
That's correct.

[00:03:38] Speaker 01:
The administrative judge.

[00:03:42] Speaker 01:
is the final decision of the MSPB, of course.

[00:03:46] Speaker 01:
What did the administrative judge do wrong?

[00:03:49] Speaker 00:
Well, I think the number one.

[00:03:50] Speaker 00:
Specifically.

[00:03:51] Speaker 00:
Oh, OK.

[00:03:51] Speaker 00:
Number one, she did not apply the doctrine of stillness.

[00:03:57] Speaker 00:
A lot of these charges go back 10 years.

[00:04:00] Speaker 04:
That's where I want to focus.

[00:04:01] Speaker 04:
So your primary argument is that they waited too long to deal with these issues.

[00:04:07] Speaker 04:
Is that right?

[00:04:07] Speaker 00:
Well, not just waited too long, Your Honor.

[00:04:09] Speaker 00:
There's a lot of inconsistencies that should have been

[00:04:12] Speaker 00:
I think weighed by the judge.

[00:04:13] Speaker 04:
But you don't really dispute the underlying facts.

[00:04:16] Speaker 04:
You say there might be mitigating circumstances, but you don't dispute that any of the things that she was charged with actually occurred, do you?

[00:04:27] Speaker 00:
I think to some degree it's disputed, but it's disputed as a loss of due process.

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

[00:04:39] Speaker 04:
As a matter of fact, you don't dispute that the underlying conduct occurred, correct?

[00:04:48] Speaker 00:
We dispute that some of the way it was presented, it did not occur that way.

[00:04:53] Speaker 01:
What does that mean?

[00:04:55] Speaker 00:
Well, she said, OK, she was told that she violated the text arrangements when she text or inquired about Castillo.

[00:05:07] Speaker 00:
Sergio Castillo.

[00:05:09] Speaker 00:
All right, what's left out is that the supervisor, Oribe's supervisor, told her to initially contact or do an inquiry, a text inquiry, about Mr. Castillo.

[00:05:22] Speaker 00:
She didn't object.

[00:05:23] Speaker 00:
She didn't feel that she should recuse herself.

[00:05:26] Speaker 00:
She just did it.

[00:05:28] Speaker 00:
Then they come back and say, after she turns herself in and says, I did this in 2013 with Carolyn Perez,

[00:05:39] Speaker 00:
Then they go, hey, well, wait a minute.

[00:05:40] Speaker 00:
In 2011, you also did this.

[00:05:43] Speaker 00:
I'm sorry, 2008, you also did this with Castillo.

[00:05:47] Speaker 00:
That's a fact.

[00:05:49] Speaker 00:
But I think you have to look at those particular issues also.

[00:05:54] Speaker 00:
If her supervisor told her to inquire, and she did not turn around and turn herself in as far as to recuse herself, and she's never been told that she has to recuse herself, then she conceded that it was a policy of tax, right?

[00:06:08] Speaker 00:
She can see it was a policy for personal use.

[00:06:10] Speaker 04:
I think she violated that policy.

[00:06:13] Speaker 00:
She did violate it, but I don't think she violated it in Castillo's case.

[00:06:18] Speaker 00:
When your supervisor tells you, text Castillo, then that's what you do, and that's what she did.

[00:06:23] Speaker 00:
Then the issue becomes, should she have refused herself?

[00:06:28] Speaker 04:
But she knew she should have, right?

[00:06:30] Speaker 04:
She admitted she should have.

[00:06:31] Speaker 00:
Well, Your Honor, there is a section in there, and I think we brought it out.

[00:06:35] Speaker 00:
in our brief that says that every employee is allowed certain personal use of the text or any other machine in the work area.

[00:06:47] Speaker 02:
She also let relatives into the United States outside of normal procedures, did she not?

[00:06:53] Speaker 00:
She let them in.

[00:06:54] Speaker 00:
Yes.

[00:06:55] Speaker 00:
OK.

[00:06:57] Speaker 00:
And she was supposed to turn herself in or make certain arrangements to have other people let them in.

[00:07:03] Speaker 00:
But however, the agency also says, and you rode with these people.

[00:07:08] Speaker 00:
You were in the same vehicle with these people.

[00:07:10] Speaker 00:
If that's the case, she didn't let them in.

[00:07:12] Speaker 00:
She accompanied them, but she didn't let them in.

[00:07:17] Speaker 00:
Because there's another CBPO there who lets the vehicles into the United States.

[00:07:24] Speaker 00:
And I think that has to be looked at.

[00:07:26] Speaker 00:
For example,

[00:07:29] Speaker 00:
You have the proposing official.

[00:07:31] Speaker 02:
That was the job of the administrative judge to find the facts.

[00:07:37] Speaker 02:
Court of Appeals don't find facts.

[00:07:41] Speaker 00:
I understand that, but we can argue the outcome of the administrative judge that it may have been wrong or that certain things were not looked at in her decision.

[00:07:51] Speaker 02:
And we look at what the administrative judge did on a substantial evidence basis.

[00:07:59] Speaker 02:
which is an amount of evidence that a reasonable person could consider as establishing a fact.

[00:08:08] Speaker 00:
I understand.

[00:08:08] Speaker 02:
It was not the preponderance of the evidence, but a reasonable amount of evidence.

[00:08:15] Speaker 00:
Yes, Your Honor.

[00:08:15] Speaker 00:
But if this evidence is tainted in some way, if the presentation is tainted in some way, that should be examined.

[00:08:22] Speaker 04:
OK, so let me figure out what's tainted.

[00:08:25] Speaker 04:
You rely on a staleness argument, but you

[00:08:28] Speaker 04:
expressly waived any latches argument, at least as it relates to anything other than the Castillo inquiries, right?

[00:08:35] Speaker 00:
No, Your Honor.

[00:08:36] Speaker 00:
I didn't represent.

[00:08:37] Speaker 00:
She was represented by a union representative.

[00:08:41] Speaker 04:
Well, she and her union representative expressly waived any latches argument, right?

[00:08:45] Speaker 00:
I don't believe.

[00:08:46] Speaker 00:
I think that the judge brought it out, that she directly asked Mr. Rivera, are you seeking the affirmative defense of latches?

[00:08:57] Speaker 00:
And he did not answer it in the affirmative.

[00:09:00] Speaker 00:
But she still made inquire as to whether or not latches would apply.

[00:09:04] Speaker 00:
I think she also, and I think the facts represent that the judge actually went in and made some decisions.

[00:09:14] Speaker 00:
And she actually struck some of the specifications based on latches.

[00:09:22] Speaker 04:
Assuming it's not waived.

[00:09:24] Speaker 00:
I'm sorry?

[00:09:25] Speaker 04:
Even assuming it's not waived, which I think is a difficult assumption, but even assuming that some aspect of this is not waived, what is the prejudice to her from the delay?

[00:09:36] Speaker 00:
Well, I think her Douglas Factor's defenses or her Douglas Factor analysis was prejudiced.

[00:09:44] Speaker 00:
How so?

[00:09:46] Speaker 00:
Well, let's take the deciding official in his, I'm going to strike that, the proposing official in his

[00:09:54] Speaker 00:
letter specifically states, the 11 years you've been with us, I find no derogatory remarks in your record.

[00:10:07] Speaker 00:
But then when she goes to investigation, all of a sudden they find all these exceptions.

[00:10:15] Speaker 00:
And all I'm saying is, I understand the board's duty is to try to

[00:10:23] Speaker 00:
level the playing field, because that's what, to me, that's what MSPB is about.

[00:10:27] Speaker 00:
I may be all wrong.

[00:10:30] Speaker 00:
The board is about giving the employee a level playing field.

[00:10:35] Speaker 04:
So you're saying just because she had never been punished in the past or reprimanded at the past that anything that happened in the past can never be examined?

[00:10:46] Speaker 00:
No, I didn't say that.

[00:10:47] Speaker 00:
I said when you couple that, and I put that in my brief, when you couple that,

[00:10:52] Speaker 00:
with some of the conduct that she's being charged with, that clearly is stale.

[00:10:56] Speaker 00:
It goes back 11 years.

[00:10:59] Speaker 00:
And they even bring it up.

[00:11:00] Speaker 00:
They brought up the incidents with the self-reporting with the Pettis, Carolyn Pettis incident.

[00:11:06] Speaker 00:
They bring it up in her removal when they had already done a letter of reprimand three years earlier.

[00:11:12] Speaker 01:
Counsel, I think you make a fair point about the long delay

[00:11:19] Speaker 01:
the evidence and in this process.

[00:11:22] Speaker 02:
I plan to ask the government about that.

[00:11:47] Speaker 03:
With regard to the allegation of staleness, which the court is interested in, there were four charges in this case.

[00:12:00] Speaker 03:
And staleness, if it has any implication, might have an implication with regard to the charge of misuse of the Treasury enforcement communications system.

[00:12:13] Speaker 03:
the agency was not aware that she had misused this system.

[00:12:19] Speaker 03:
And what I wanted to bring out is you can't use this for personal use.

[00:12:26] Speaker 03:
You have to have an official need to know the information for law enforcement purposes.

[00:12:33] Speaker 03:
And only in such circumstances may you use that system

[00:12:38] Speaker 03:
to get law enforcement information.

[00:12:41] Speaker 03:
And the agency- In terms of her misuse with regard to the boyfriend, that was only uncovered during the course of the Office of Professional Responsibility investigation.

[00:12:56] Speaker 03:
And yes, it was a lengthy investigation.

[00:12:59] Speaker 03:
It involved two interviews.

[00:13:01] Speaker 03:
At the first interview, which was in June of 2016,

[00:13:08] Speaker 03:
She admits that she misused the Treasury enforcement communication system once, only once.

[00:13:17] Speaker 03:
And she's asked specifically, is that the only time you ever did it?

[00:13:21] Speaker 03:
And she says, yes, that's the only time I ever did it.

[00:13:24] Speaker 03:
That leads to further investigation of her.

[00:13:28] Speaker 03:
And it's uncovered that.

[00:13:30] Speaker 03:
She misused it with regard to the boyfriend, Mr. Castillo.

[00:13:35] Speaker 03:
And in her second interview, she's confronted with, again, they go over this.

[00:13:42] Speaker 03:
Did you do it only once?

[00:13:44] Speaker 03:
Yes, I did it only once.

[00:13:46] Speaker 03:
Well, then they show her the documentation that she misused the Treasury enforcement communication system with regard to a boyfriend.

[00:13:54] Speaker 03:
And in the second interview in October of 2016,

[00:13:58] Speaker 03:
She shown the documentation.

[00:14:00] Speaker 04:
This process takes forever.

[00:14:02] Speaker 04:
And she's left on the job to continue doing all of her duties.

[00:14:05] Speaker 04:
So obviously, there wasn't some grave concern that she was incapable of performing her duties.

[00:14:11] Speaker 04:
I mean, this event occurred 11 years before her discharge.

[00:14:18] Speaker 04:
And the entire investigation took, what, three or four years.

[00:14:21] Speaker 04:
And yet, she's still performing her duties the whole time.

[00:14:24] Speaker 04:
And we're now supposed to believe that

[00:14:26] Speaker 04:
There's this grave belief that she was incapable of performing her duties.

[00:14:32] Speaker 03:
What the deciding official found and the board found with regard to the first charge is that she had misused her position.

[00:14:41] Speaker 03:
No customs and border protection officer is allowed to go into this law enforcement database for personal purposes.

[00:14:50] Speaker 04:
Right, but is there no

[00:14:52] Speaker 04:
factor that is considered in the Douglas Factors when it says she did it once 11 years ago and she's been performing her duties since then?

[00:15:01] Speaker 03:
Certainly you look at whether or not there's been repetition.

[00:15:06] Speaker 03:
But what the deciding official found and the board found was that she was a repeat violator.

[00:15:13] Speaker 02:
There are other types of violations, were there not?

[00:15:16] Speaker 03:
Yes, yes.

[00:15:17] Speaker 03:
With regard to the one I've just been discussing, Charge 1,

[00:15:21] Speaker 03:
She was a repeat violator.

[00:15:23] Speaker 03:
That's the finding of both.

[00:15:25] Speaker 03:
But the most recent violation was 11 years before her termination.

[00:15:29] Speaker 03:
No.

[00:15:30] Speaker 03:
No.

[00:15:30] Speaker 03:
The most recent violation, I believe, was in 2013.

[00:15:34] Speaker 03:
The one with Mr. Castillo is the one that Your Honor is referring to.

[00:15:40] Speaker 03:
That is extremely old.

[00:15:42] Speaker 03:
And that wasn't covered during the OPR investigation.

[00:15:45] Speaker 03:
The second charge was.

[00:15:47] Speaker 03:
allowing family members and close associates entry into the United States through her primary inspection lane.

[00:15:55] Speaker 03:
And this was a continuing pattern of conduct.

[00:15:59] Speaker 01:
The violations started- That's what's so weird about this case is that she apparently was doing this for a lengthy period of time.

[00:16:08] Speaker 01:
Where was the enforcement process back then?

[00:16:13] Speaker 03:
Well, unless there is a complaint,

[00:16:16] Speaker 03:
And the Office of Personal Responsibility is alerted and then begins an investigation.

[00:16:23] Speaker 03:
Frankly, misconduct is not going to be ferreted out.

[00:16:27] Speaker 03:
But in this case, there was a complaint that did lead to a lengthy investigation, and additional misconduct was uncovered.

[00:16:37] Speaker 03:
Now, I think the important point is that there was no prejudice, as the board found.

[00:16:45] Speaker 03:
She was found to have engaged in all of these forms of misconduct based on her own testimony in the two interviews that were conducted by the Office of Professional Responsibility.

[00:16:59] Speaker 03:
And there was all this documentary evidence before the judge.

[00:17:05] Speaker 03:
And based on that, he made the findings that she had indeed engaged in these four serious forms

[00:17:12] Speaker 03:
of misconduct.

[00:17:13] Speaker 04:
Why did her own self-reporting not trigger an investigation?

[00:17:19] Speaker 04:
If you say a complaint is necessary, what's wrong with self-reporting?

[00:17:24] Speaker 03:
The self-reporting was the incident back in 2013 involving a neighbor where she went onto the system, and she self-reported that.

[00:17:35] Speaker 03:
And that's what you're supposed to do.

[00:17:37] Speaker 03:
And she did self-report it.

[00:17:43] Speaker 03:
That didn't trigger anything at that time.

[00:17:46] Speaker 03:
Subsequently, when there was suspicion about why she'd want to take credit for this recovery of all these drugs, then there was a more extensive investigation of exactly what was going on.

[00:18:01] Speaker 04:
Yeah, I don't really understand that whole fact pattern.

[00:18:03] Speaker 04:
So she finds out she can't open the trunk, and the driver can't seem to open the trunk.

[00:18:08] Speaker 04:
So she goes and gets help.

[00:18:10] Speaker 04:
There's nothing wrong with what she did.

[00:18:12] Speaker 04:
Right.

[00:18:13] Speaker 04:
That's what I don't understand.

[00:18:14] Speaker 04:
So this whole thing triggers this big investigation, and what she did was exactly right, right?

[00:18:20] Speaker 04:
What she did was right.

[00:18:22] Speaker 03:
Yes, that's true.

[00:18:23] Speaker 02:
In that respect.

[00:18:23] Speaker 03:
But it was right in the sense that she couldn't open the trunk, so she had somebody else assist with opening the trunk.

[00:18:30] Speaker 03:
She couldn't get it open.

[00:18:32] Speaker 03:
There was a report that it was suspicious that she didn't want to take credit for the finding of all the junk.

[00:18:38] Speaker 03:
the drugs, which, you know, the car comes into her lane and normally the officer would be a potential witness if it ever went to... No, I think what you said is normally the officer would want to take credit so they could get a bonus.

[00:18:54] Speaker 04:
Correct.

[00:18:56] Speaker 03:
She didn't say she wouldn't be a potential witness.

[00:19:00] Speaker 03:
No, she just, she left.

[00:19:02] Speaker 03:
And it was a mere suspicion of misconduct at that time that triggered the investigation.

[00:19:09] Speaker 03:
But the government is allowed to do that.

[00:19:11] Speaker 03:
The government is allowed to investigate its own employees and make determinations as to whether they have engaged in any misconduct.

[00:19:22] Speaker 02:
What about the association with someone who was convicted of a crime?

[00:19:27] Speaker 03:
Yes.

[00:19:31] Speaker 03:
Her defense or her allegation there was that he was innocent.

[00:19:37] Speaker 03:
But the problem was she had misused the database and gone into the database to check on him.

[00:19:43] Speaker 03:
And the evidence in front of the judge was when you do that, you uncover the fact that he had a felony drug conviction.

[00:19:53] Speaker 03:
the administrative judge in this case found, because she admittedly went into the database and she remembers checking on her boyfriend, she must have seen that he had a felony drug conviction.

[00:20:06] Speaker 03:
So she must have known that.

[00:20:08] Speaker 03:
And based on that, she should have continued to have this long association, which goes on for years, off and on, with Mr. Castiglia, which is a felony drug conviction.

[00:20:21] Speaker 03:
And in this

[00:20:23] Speaker 03:
Court's decision of James v. Dale, the court pointed out that you don't want to have Customs and Border Protection officers associating with known or suspected law violators.

[00:20:40] Speaker 03:
And that's exactly what Mr. Castiglia was.

[00:20:43] Speaker 03:
And then the last violation also was very serious.

[00:20:49] Speaker 03:
She gave inaccurate statements.

[00:20:51] Speaker 03:
in the second interview with the Office of Professional Responsibility.

[00:20:57] Speaker 03:
And there, in particular, these relate to the use of the Treasury enforcement communication system.

[00:21:08] Speaker 03:
It was the judge's finding that she was not credible during the second interview, because first she denies having ever checked on anyone else in the system for personal reasons.

[00:21:21] Speaker 03:
And then when she's shown the documentation, she gives a vivid account of my boyfriend.

[00:21:28] Speaker 03:
I was concerned.

[00:21:30] Speaker 03:
I'm paraphrasing, Your Honor.

[00:21:32] Speaker 03:
But the exact language is in the investigation interview.

[00:21:37] Speaker 03:
And she gives a vivid description of checking into the database on her boyfriend.

[00:21:42] Speaker 03:
And based on that, the judge doesn't find that she gave correct information.

[00:21:47] Speaker 03:
She gave incorrect information during the interview.

[00:21:51] Speaker 03:
And again, in terms of the latches defense, there was no prejudice.

[00:21:58] Speaker 03:
And then also, the board judge found that there was a waiver.

[00:22:02] Speaker 03:
As we pointed out in our brief, there was a waiver at two specific times.

[00:22:08] Speaker 03:
There was a telephone conference.

[00:22:10] Speaker 03:
And at the telephone conference, her representative says that they're not asserting latches.

[00:22:17] Speaker 03:
And then later on, there is another conference on August 11.

[00:22:22] Speaker 03:
when they're supposed to state all of the defenses and latches is not raised.

[00:22:30] Speaker 03:
If the court has no further questions, we'll ask them to be affirmed.

[00:22:34] Speaker 02:
Thank you, counsel.

[00:22:37] Speaker 02:
Thank you, counsel.

[00:22:38] Speaker 02:
Mr. Tirino?

[00:22:39] Speaker 00:
Thank you, Your Honor.

[00:22:48] Speaker 00:
Your Honor, we would first address

[00:22:50] Speaker 00:
the Carolyn Pettis or the self-reporting.

[00:22:54] Speaker 00:
She did that in 2013.

[00:22:56] Speaker 00:
She self-reported.

[00:22:57] Speaker 00:
She did inquire about her neighbor.

[00:22:59] Speaker 00:
The mother comes, knocks on her door, her neighbor who lives in front of her saying, Mike, we can't find my daughter.

[00:23:06] Speaker 00:
Can you please help me?

[00:23:10] Speaker 00:
The petitioner goes and tells her, here's the numbers you called.

[00:23:14] Speaker 00:
Call the bridge.

[00:23:15] Speaker 00:
Call the International Bridge and see what they can do for you.

[00:23:17] Speaker 00:
The mother comes back.

[00:23:18] Speaker 00:
She's going crazy.

[00:23:19] Speaker 00:
She says, I can't find my daughter.

[00:23:20] Speaker 00:
They're not helping me.

[00:23:22] Speaker 00:
Then that's when the petitioner said, OK, well, let me see what I can do.

[00:23:28] Speaker 00:
Then she turned around and reported herself.

[00:23:31] Speaker 00:
And that is what triggered the rest of the investigation to see if she had ever used the tech system.

[00:23:38] Speaker 04:
And she just got a reprimand for that.

[00:23:41] Speaker 00:
She got a letter of reprimand.

[00:23:43] Speaker 00:
And the investigation took three years on a self-reporting individual.

[00:23:48] Speaker 00:
A person who says, yes, I did it, I'm guilty, and that's it.

[00:23:53] Speaker 00:
They take three years to issue her a letter of reprimand.

[00:23:59] Speaker 00:
And like I've said before, in my opinion, it was used to stack.

[00:24:03] Speaker 00:
Here's where it was prejudiced, that it was used to stack it against her on the removal issues.

[00:24:10] Speaker 02:
Didn't she benefit from the delay by having her job longer?

[00:24:14] Speaker 00:
No, sir, you wouldn't benefit because if it would have gone through its normal process, the collective bargaining agreement says that the letter of reprimand will stay in the employee's record for 18 months.

[00:24:28] Speaker 00:
It would have been taken out by then.

[00:24:30] Speaker 00:
They could have referred to it, but it would still have been not active.

[00:24:36] Speaker 00:
And we think that prejudiced her.

[00:24:41] Speaker 00:
employer this time clearly violated a dozen or so articles of the collective bargaining agreement I Don't know why the union steward didn't bring it up, but that's what happened now as far as the violation for the self reporting if you look at it in its and take it out of a

[00:25:08] Speaker 00:
CBP Directive 51735-0118, which is what has been used against her.

[00:25:16] Speaker 00:
It specifically holds that should a supervisor notice a pattern that indicates an employee willful negligence or disregard of CBP policy and procedures, the alleged misconduct must be reported to the Office of Internal Affairs via the Joint Intake Center

[00:25:36] Speaker 00:
or another CBP approved method of reporting misconduct.

[00:25:43] Speaker 00:
None of that was done.

[00:25:47] Speaker 00:
None of it was done.

[00:25:48] Speaker 00:
Now, there was another issue that I wanted to address.

[00:25:55] Speaker 00:
In the removal letter, and again I state, she went 11 years without any misconduct.

[00:26:03] Speaker 00:
that the deciding official, Higgerson, did not speak to that.

[00:26:09] Speaker 00:
In his analysis of the Douglas Factors, he only looked at, I think, one factor.

[00:26:15] Speaker 00:
You've been here 11 years.

[00:26:20] Speaker 00:
That's not really giving her an equal or at least an equitable view or application of the Douglas Factors.

[00:26:31] Speaker 00:
The Douglas Factors.

[00:26:34] Speaker 00:
The controlling idea of the Douglas Factors are that the individual employee is given fair and equitable treatment in the application of the agency's decision.

[00:26:57] Speaker 00:
Clearly, if you take all the facts, that's not what you're going to find.

[00:26:59] Speaker 00:
You're going to find that the stillness of this

[00:27:03] Speaker 00:
of the decision that the agency failed to make or figured it was not going to have to make was prejudicial.

[00:27:15] Speaker 04:
But didn't the ALJ specifically find that there were mitigating factors that they took into consideration, but those mitigating factors were outweighed?

[00:27:27] Speaker 00:
Well, she didn't get all the specifications.

[00:27:30] Speaker 00:
She didn't rule on all the specifications.

[00:27:32] Speaker 00:
She dismissed about half of them.

[00:27:36] Speaker 00:
But the point is that you still have to apply the Douglas Factors.

[00:27:39] Speaker 00:
You still have to apply the law.

[00:27:41] Speaker 00:
Well, which ones do you think were ignored?

[00:27:45] Speaker 00:
That was part of my brief.

[00:27:47] Speaker 00:
I'm sorry.

[00:27:50] Speaker 00:
If it's in your brief, we'll find it.

[00:27:53] Speaker 00:
Yes, it's in the brief.

[00:27:54] Speaker 00:
I outlined the Douglas factor specifically and went through each one, and I specifically said how it was not applied.

[00:28:03] Speaker 00:
That it should have been applied.

[00:28:05] Speaker 00:
Her length of service was about the only thing that was taken into consideration.

[00:28:10] Speaker 00:
And that was it.

[00:28:11] Speaker 02:
Council, as you can see, your red light is on.

[00:28:14] Speaker 00:
Oh, I'm sorry.

[00:28:16] Speaker 02:
I didn't see it.

[00:28:16] Speaker 02:
Do you have one final statement?

[00:28:19] Speaker 00:
Yes, Your Honor, I think that equity, like I said before, the board ends up being a court of equity.

[00:28:27] Speaker 00:
It is supposed to level the playing field.

[00:28:30] Speaker 00:
The Douglas Factors are supposed to be applied.

[00:28:32] Speaker 00:
You're going to find that the Douglas Factors were not properly applied.

[00:28:37] Speaker 00:
And I think that is the controlling doctrine right now, is that, yes, maybe she did do some of these things, and she admitted it.

[00:28:48] Speaker 00:
But on the same token, what did the agency do to prejudice her?

[00:28:53] Speaker 02:
Why did it take so long?

[00:28:54] Speaker 02:
Thank you, counsel.

[00:28:55] Speaker 02:
We have your argument.

[00:28:57] Speaker 02:
Thank you, Your Honor.

[00:28:57] Speaker 02:
We'll take the case under advisement.