[00:00:01] Speaker 02:
I'm pleased to announce we have an admission this morning.

[00:00:04] Speaker 02:
Mr. Green, will you come forward?

[00:00:09] Speaker 02:
I'm pleased to move the admission of Scott Garrett Green, who is a member of the Bar and Good Standing with the highest court of New York.

[00:00:18] Speaker 02:
I have knowledge of his credentials and am satisfied that he possesses the necessary qualifications.

[00:00:25] Speaker 02:
Let me say also that Mr. Green has served as my law clerk

[00:00:31] Speaker 02:
with distinction over his stay with us.

[00:00:35] Speaker 02:
And I am delighted that he is on the path to what I trust will be gainful employment in the future.

[00:00:44] Speaker 02:
So will you approach the clerk who will administer the oath?

[00:01:10] Speaker 02:
Now as you proceed, I must announce with regret that Judge O'Malley on very short notice is unable to be with us today.

[00:01:20] Speaker 02:
She will listen to the arguments as soon as she is as able and will participate fully in the further events.

[00:01:30] Speaker 02:
So as you present your arguments, and we will try and represent her viewpoint in our interaction with you

[00:01:39] Speaker 02:
as well.

[00:01:42] Speaker 02:
Okay.

[00:01:43] Speaker 02:
So the first target case this morning is number 17, 2072, Washington against the Department of Defense.

[00:01:52] Speaker 02:
Mr. Hunter.

[00:01:53] Speaker 02:
Yes.

[00:01:58] Speaker 00:
May it please the court.

[00:02:00] Speaker 00:
My name is Scott Hunter.

[00:02:01] Speaker 00:
I'm an attorney from Fairhope, Alabama.

[00:02:04] Speaker 00:
My good friend and my co-counsel, Ed Smith, is still back home today, but I'm here today with Miss Washington, who is in the gallery above right over my left shoulder.

[00:02:16] Speaker 00:
I want to give kind of an update.

[00:02:19] Speaker 00:
As you know, there's a pending motion to transfer that's included in this case.

[00:02:26] Speaker 00:
The EEO appeal is before the Southern District of Alabama.

[00:02:31] Speaker 00:
There is currently a stay that was issued

[00:02:35] Speaker 00:
There was a stay issue by Judge Terry Moore pending.

[00:02:39] Speaker 00:
We advised the court that

[00:02:41] Speaker 00:
that the motion to dismiss was put up as part of the briefing.

[00:02:46] Speaker 03:
Judge Moore in the Southern District of Alabama?

[00:02:49] Speaker 00:
Yes.

[00:02:50] Speaker 00:
He was a magistrate in the Middle District for a while.

[00:02:53] Speaker 00:
He was just appointed six, eight months ago to the Southern District.

[00:02:59] Speaker 00:
And so that case has stayed pending your honor's decision on the motion to transfer.

[00:03:03] Speaker 03:
So what is your theory for why this case has to be transferred?

[00:03:07] Speaker 00:
Well, Miss Washington has had

[00:03:11] Speaker 00:
Her EEO complaint during this time, she's also had the MSBB at this time.

[00:03:18] Speaker 00:
During the briefing, she had a different trial lawyer than me handling her district court case.

[00:03:30] Speaker 00:
During the appeals, she gets a right to sue letter from the EEO and says, here you can proceed with your racial discrimination claims and your others.

[00:03:38] Speaker 00:
in district court, and I felt that it was appropriate for me to advise the court that there's still this racial issue out there.

[00:03:48] Speaker 03:
So I may not be remembering accurately, and maybe the government can clarify this, but I think in the government's response in its red brief on this, it makes a point something along the lines of the actual subject of the discrimination charge

[00:04:07] Speaker 03:
complaint that's in the Alabama court is not the removal.

[00:04:12] Speaker 03:
It is rather the issuance of the notice of proposed removal.

[00:04:17] Speaker 03:
And that therefore, even if Ms.

[00:04:21] Speaker 03:
Washington has a discrimination complaint, it's not actually a discrimination complaint about the removal

[00:04:30] Speaker 03:
And therefore, the removal case, which is what this is, belongs here as it was properly transferred, indeed requested to be transferred from Georgia.

[00:04:40] Speaker 00:
Can you address that?

[00:04:41] Speaker 00:
My understanding is the EEO determination includes a reference to the fact that she had been terminated.

[00:04:54] Speaker 00:
in that 2018 report that was the nexus of her district court lawsuit, it references the fact that she was terminated.

[00:05:05] Speaker 00:
And so the termination became part of the EEO investigation along the way.

[00:05:13] Speaker 00:
The lawsuit that was filed in district court by a fellow named Ronnie Williams

[00:05:19] Speaker 00:
includes the reference to the fact that the EEO mentions the termination in their findings.

[00:05:28] Speaker 00:
And so that's where we are.

[00:05:31] Speaker 00:
And I felt it was appropriate to bring it to your honor and just to the court.

[00:05:38] Speaker 00:
And that's where we were.

[00:05:40] Speaker 00:
And so I initially was started with this to do the merits.

[00:05:44] Speaker 00:
And so I'm OK.

[00:05:46] Speaker 00:
That's where I am at this.

[00:05:48] Speaker 00:
And so if you don't have any other questions on the transfer right now, it's OK.

[00:05:54] Speaker 00:
I'm going to go to the merits.

[00:05:57] Speaker 00:
But with regards to Miss Washington, she's a civilian auditor at the Department of Defense.

[00:06:12] Speaker 00:
Before she worked in Mobile, she did a year

[00:06:17] Speaker 00:
volunteered to do this job in Baghdad for a year.

[00:06:21] Speaker 00:
At some point, they tell her, you need to move to Smyrna, Georgia.

[00:06:27] Speaker 00:
About six and a half hour drive from Mobile.

[00:06:34] Speaker 00:
We're going to talk about a lot what's in the record.

[00:06:37] Speaker 00:
But you've got to look at what's not in the record.

[00:06:39] Speaker 00:
They're saying she never moved to Georgia.

[00:06:41] Speaker 00:
They're saying she never did this.

[00:06:43] Speaker 00:
She never missed a day of work in Smyrna, Georgia.

[00:06:46] Speaker 00:
She never missed a TDY assignment except for the assignment where she was in Jacksonville, Florida and had a medical emergency and had to have emergency surgery and was out for about three months.

[00:06:59] Speaker 02:
What is your response to these claims?

[00:07:02] Speaker 02:
They have quite a strong list of concerns that have been raised.

[00:07:08] Speaker 00:
Yes, Judge.

[00:07:10] Speaker 00:
The main thing is, of the several

[00:07:15] Speaker 00:
issues that they're raising.

[00:07:17] Speaker 00:
And mind you, in my reading of the record, some of the things that the union rep was arguing about didn't quite dovetail with what was being brought about by the government at the time, or the department at the time.

[00:07:37] Speaker 00:
Because up until they're coming into the hearing, they thought they were

[00:07:42] Speaker 00:
Arguing, you know, they were nitpicking the regulations.

[00:07:47] Speaker 00:
And so if you look at the the the pretrial information everything they were all based off of they were all based off of the They're all based off of what they thought with the inaccuracy they thought they were just coming in arguments almost like a CBC a style of

[00:08:07] Speaker 00:
You know, it fits under this reg, but not that reg.

[00:08:10] Speaker 00:
And when they get those, oh, well, this is actually more of a falsification.

[00:08:14] Speaker 00:
And they kind of change it midstream.

[00:08:17] Speaker 00:
Of the things that they found that they said she falsified documents, they claimed that metadata proved it.

[00:08:30] Speaker 00:
And we looked at her computer, and there was metadata.

[00:08:34] Speaker 00:
And all he did was right-click on properties.

[00:08:38] Speaker 00:
And so, okay, well, it says that it was put on, it says the document was created that day.

[00:08:44] Speaker 00:
Mr. Fonter, the investigator, isn't a forensic scientist, isn't a forensic IT expert.

[00:08:52] Speaker 00:
He's their PI.

[00:08:53] Speaker 00:
He's the same guy that drove to Mobile and took photographs of a parked car in a driveway.

[00:09:00] Speaker 03:
Did you have the opportunity at the hearing to put on evidence about why this metadata didn't really establish?

[00:09:12] Speaker 00:
She tried and the department objected to her trying to rebut this evidence.

[00:09:19] Speaker 00:
She tried to show them that some certain software, it says it was created and what had happened,

[00:09:27] Speaker 00:
when she had to, in order to obtain these reimbursements, she has to put these documents onto her work computer in order to, the requests for payment have to come from a .gov email.

[00:09:49] Speaker 00:
She can't do it from her personal address.

[00:09:51] Speaker 00:
So she has to get these documents onto her computer, save it on her computer, and then upload it.

[00:09:57] Speaker 00:
And when she tried, let me find the page, there was in the record, she tried to show them, she said, no, here's what, look, here's what happens when you upload a document onto the computer, onto a .gov computer.

[00:10:18] Speaker 00:
They objected and said, well, she's not an expert.

[00:10:20] Speaker 00:
But everything, and I agree that when you're discussing something like metadata... You say they objected.

[00:10:27] Speaker 02:
You're saying that she was not permitted to present this argument?

[00:10:32] Speaker 00:
Absolutely.

[00:10:35] Speaker 00:
She was absolutely not allowed to do that.

[00:10:37] Speaker 02:
Were you representing her in this?

[00:10:39] Speaker 00:
No, she had a union rep.

[00:10:41] Speaker 00:
Mr. Mitchell was the union rep.

[00:10:43] Speaker 00:
And so I came into this case very, very late.

[00:10:48] Speaker 00:
And so I came in just enough time to file the opening brief.

[00:10:54] Speaker 00:
And so the, I've got it written down.

[00:10:57] Speaker 02:
It does seem strange that there were no original documents as far as we could tell in the record that was presented to us.

[00:11:08] Speaker 00:
They were to the extent that, and for one of the documents, it was a document they said she forged,

[00:11:16] Speaker 00:
They even admit the purported author, if they say it was forged, the purported author was Miss Washington.

[00:11:23] Speaker 00:
It came from a document that she had prepared.

[00:11:31] Speaker 00:
And so one of the documents was from a business courtyard manor.

[00:11:36] Speaker 00:
She and her now ex-husband, they were both co-owners of this courtyard manor.

[00:11:43] Speaker 00:
So how can you forge your own document?

[00:11:47] Speaker 00:
I mean, I can't forge my own signature either.

[00:11:49] Speaker 00:
It's my signature.

[00:11:50] Speaker 00:
It's not.

[00:11:51] Speaker 00:
It was at the supplemental index, 448 and 449.

[00:11:57] Speaker 00:
And I'm at five minutes left, so I'm going to reserve the rest of my time for a while.

[00:12:01] Speaker 00:
Yes, all right.

[00:12:02] Speaker 00:
Thank you.

[00:12:14] Speaker 02:
Mr. Lyons, on this particular issue, what is the government's response to the argument that she wasn't permitted to present her evidence in rebuttal?

[00:12:28] Speaker 01:
She was allowed to present her argument that when you upload a file to a computer

[00:12:33] Speaker 01:
the file gets the date it's uploaded.

[00:12:36] Speaker 01:
She attempted to introduce evidence that she could manipulate the clock on a computer to create a false date.

[00:12:45] Speaker 01:
That's the evidence that the judge excluded.

[00:12:48] Speaker 01:
And in the initial opinion, the judge notes, well, if in fact the issue was you uploaded the moving receipt on a later date, there's no email from the moving company.

[00:13:01] Speaker 01:
for that later date.

[00:13:02] Speaker 01:
So if that's the issue, you've got it on a later date, where's the underlying evidence to support that?

[00:13:08] Speaker 01:
The whole issue here of metadata is really something of a red herring.

[00:13:13] Speaker 01:
As counsel just stated in his argument, all Mr. Fonterre

[00:13:19] Speaker 01:
The investigator did was right-click on a document's properties.

[00:13:23] Speaker 01:
This isn't specialized knowledge for which expert testimony is necessary.

[00:13:27] Speaker 01:
He just looked to see.

[00:13:28] Speaker 02:
He reported what he found on her computer.

[00:13:31] Speaker 02:
Yes, Your Honor.

[00:13:31] Speaker 02:
But we're told that there were other considerations.

[00:13:37] Speaker 01:
Yes, he looked, he said, and he found the dates.

[00:13:40] Speaker 01:
The fact that those dates don't line up with underlying emails, that there's no receipt of payment, there's no proof of payment, and that Miss Washington admitted that she never actually moved to the Atlanta area, never set up permanent residence there.

[00:13:54] Speaker 01:
She was in the Tennessee mountains or living with a brother somewhere.

[00:13:58] Speaker 01:
She could not remember the address.

[00:14:00] Speaker 01:
That all shows the substantive evidence that proves that justifies the decision upholding the removal here.

[00:14:06] Speaker 03:
Can I just ask this about the metadata issue?

[00:14:10] Speaker 03:
I certainly see in the blue brief an argument that the administrative judge erred in allowing the testimony by the non-expert investigator about the meaning of the information that you get when you right-click, whether that's date of document on computer or date of creation of document, which might have been earlier, obviously.

[00:14:39] Speaker 03:
I'm not sure I see an argument, and I guess I want you to tell me if there is an argument in the blue brief that the AJ erred in denying her ability to make her own testimony about the meaning of metadata.

[00:15:02] Speaker 01:
As I read the argument Miss Washington makes, she is complaining that the investigator's testimony was allowed, not that her testimony was excluded.

[00:15:15] Speaker 01:
The problem in her view is that Mr. Fonter should not have been allowed to testify.

[00:15:21] Speaker 01:
And that's why our response was, well, at the time you didn't object.

[00:15:24] Speaker 01:
at the time you had actually listed miss washington actually listed him as a witness she intended to call and that fundamentally it's not expert testimony one could read it i suppose generously the argument it would require a very generous reading to say the argument was that was made in the briefing is that miss washington should have been allowed to introduce this testimony that she could

[00:15:52] Speaker 01:
that she hadn't previously identified that she could change the clock inside a computer to create a false date.

[00:16:00] Speaker 03:
Can you address the transfer question and the relationship between the new district court action, the one in Alabama, and this appeal from the board decision?

[00:16:15] Speaker 01:
Yes, Your Honor.

[00:16:17] Speaker 01:
We think very clearly the court has jurisdiction.

[00:16:20] Speaker 01:
The Alabama case is an appeal from the EEOC determination.

[00:16:25] Speaker 01:
The EEOC determination, during the pendency of that matter before the EEOC, Ms.

[00:16:33] Speaker 01:
Washington added a claim about her proposed removal, not her termination, her proposed removal.

[00:16:38] Speaker 01:
And you can see that at the supplemental appendix at 61.

[00:16:44] Speaker 02:
But you say it's not a termination appeal.

[00:16:47] Speaker 02:
But in fact, doesn't it arise from this termination action?

[00:16:52] Speaker 01:
No, Your Honor, because the EEOC proceeding arises from various actions that Ms.

[00:17:02] Speaker 01:
Washington found adverse in advance of even the proposed termination.

[00:17:06] Speaker 01:
And then she amended it to add the proposed termination.

[00:17:10] Speaker 01:
She never amended it.

[00:17:11] Speaker 01:
to include her termination.

[00:17:13] Speaker 01:
We don't think she could have.

[00:17:15] Speaker 01:
That was already in front of the MSPB.

[00:17:17] Speaker 01:
But in any event, you can see that from the EEOC's actual opinion, which counsel referenced.

[00:17:23] Speaker 01:
It's in the supplemental appendix beginning at 512.

[00:17:29] Speaker 01:
It identifies four claims that Miss Washington makes.

[00:17:33] Speaker 01:
And three of them don't have to do with

[00:17:37] Speaker 01:
any part of the removal and claim four is identified as proposed removal.

[00:17:44] Speaker 01:
That's consistent with what she amended

[00:17:48] Speaker 01:
her EEOC petition to assert, that's what the EEOC considered.

[00:17:55] Speaker 01:
To get back to your question, Your Honor, the Alabama matter comes up from the EEOC.

[00:18:02] Speaker 01:
It has no impact on what was done before the MSPB.

[00:18:07] Speaker 01:
The MSPB matter was not a mixed case.

[00:18:11] Speaker 01:
And this case before this court

[00:18:15] Speaker 01:
is from that matter and is not a mixed case because it wasn't a mixed case below.

[00:18:20] Speaker 01:
This case cannot be turned into a mixed case by a subsequent amendment of an unrelated district court complaint.

[00:18:31] Speaker 01:
We think, therefore, very clearly the court has jurisdiction and this matter should remain here.

[00:18:36] Speaker 01:
We're also frankly concerned that if in essence all one needs to do to create a mixed case is say the word discrimination and then waive it or put in no evidence of it, then in essence every case will become a mixed case because every savvy plaintiff will say the word mixed case or say the word discrimination in order to be able to then choose their forum where they proceed.

[00:19:00] Speaker 01:
We don't think that's what the law requires and we don't think that's what

[00:19:04] Speaker 01:
the court should find here.

[00:19:06] Speaker 01:
We think very clearly the court has jurisdiction.

[00:19:09] Speaker 01:
We think very clearly the host of evidence presented to the MSPB, setting aside the metadata issue, the lack of any receipts, the admission of non-movement, the

[00:19:22] Speaker 01:
the various statements that were introduced into the record where Ms.

[00:19:28] Speaker 01:
Washington admitted that she had never left Alabama.

[00:19:32] Speaker 01:
There was a host of evidence.

[00:19:35] Speaker 01:
We set it forth in our brief.

[00:19:37] Speaker 01:
We've put the entire transcript there.

[00:19:39] Speaker 01:
There's far beyond the very limited standard of substantial evidence to support the decision below.

[00:19:45] Speaker 01:
So for those reasons, Your Honors, we think very clearly the court has jurisdiction.

[00:19:51] Speaker 01:
The decision below was correct, and we ask that it be affirmed.

[00:19:57] Speaker 02:
Well, all right.

[00:20:00] Speaker 02:
We will consider the merits.

[00:20:01] Speaker 02:
We still need to think about the fact that you didn't waive the discrimination claim.

[00:20:08] Speaker 02:
But would you comment further on the merits?

[00:20:12] Speaker 01:
Further on the merits?

[00:20:14] Speaker 01:
Yes.

[00:20:14] Speaker 01:
Yes, Your Honor.

[00:20:15] Speaker 01:
There were two.

[00:20:20] Speaker 01:
charges that the MSPB upheld, one of falsification, one of conduct unbecoming.

[00:20:30] Speaker 01:
There were four specifications under the falsification charge.

[00:20:35] Speaker 01:
Obviously, or as the law is, only one of those needs to be supported by substantial evidence.

[00:20:40] Speaker 02:
But the issue that's been raised by counsel is that she didn't have a fair opportunity to respond to these various charges and that they were not adequately supported by the evidence.

[00:20:55] Speaker 01:
Yes, Your Honor.

[00:20:57] Speaker 01:
The record doesn't support that position.

[00:21:01] Speaker 01:
I'll go through each of the specifications.

[00:21:03] Speaker 01:
The first one was the false rental payment, where there were $35,000 in rental payments.

[00:21:12] Speaker 01:
Ms.

[00:21:12] Speaker 01:
Washington supported that by pointing to an alleged bill.

[00:21:16] Speaker 01:
As we've talked about extensively, there's the bill, the metadata showing it's not the right date.

[00:21:21] Speaker 01:
But set aside that it's not the right date.

[00:21:25] Speaker 01:
There's no underlying payment.

[00:21:27] Speaker 01:
She couldn't put that in evidence.

[00:21:29] Speaker 01:
She also admitted that the lease itself doesn't justify, doesn't give any basis for imposing this fee upon her.

[00:21:38] Speaker 03:
This is the lease termination fee?

[00:21:40] Speaker 01:
Yes, Your Honor.

[00:21:49] Speaker 01:
The second specification

[00:21:52] Speaker 01:
under the falsification charge had to do with the moving furniture, the moving expense of furniture of about $10,000.

[00:22:01] Speaker 01:
Again, there's a receipt on a computer.

[00:22:05] Speaker 01:
The metadata shows it's at the wrong date.

[00:22:07] Speaker 01:
But again, set aside the metadata.

[00:22:09] Speaker 01:
There's still ample evidence.

[00:22:11] Speaker 01:
There's no underlying payment.

[00:22:14] Speaker 01:
There's no bill of lading.

[00:22:16] Speaker 01:
There's allegedly 20,000 pounds of materials moved, but Ms.

[00:22:20] Speaker 01:
Washington, in a bankruptcy proceeding, said she had only $2,000 worth of household items.

[00:22:26] Speaker 01:
There's the fact that she has what the initial decision, I believe, calls a nomadic existence.

[00:22:32] Speaker 01:
She doesn't have anywhere.

[00:22:33] Speaker 01:
She doesn't set up a residence in Atlanta.

[00:22:36] Speaker 01:
So where did this 20,000 pounds of materials move to if she's staying in hotel rooms and with a brother-in-law or in the Tennessee mountains?

[00:22:45] Speaker 01:
That is substantial evidence.

[00:22:47] Speaker 01:
It's evidence that would support the reasonable conclusion that the claim of moving, of this moving expense, was not accurate.

[00:22:54] Speaker 03:
And I gather it's your view that that evidence is substantial even if one puts aside the interpretive question about the meaning of the metadata.

[00:23:07] Speaker 01:
Absolutely, Your Honor.

[00:23:09] Speaker 01:
As soon as the question is raised of you say you moved,

[00:23:13] Speaker 01:
show me the check stub or the bill of lading or some evidence you paid this.

[00:23:19] Speaker 01:
And it's not there.

[00:23:20] Speaker 01:
Nor was a witness from the moving company called who could have come and said, oh yes, that didn't happen.

[00:23:25] Speaker 01:
No, we think even without the metadata issue, there's substantial evidence here.

[00:23:30] Speaker 01:
The third issue, the third specification had to do with living expenses, where Ms.

[00:23:36] Speaker 01:
Washington claimed

[00:23:39] Speaker 01:
Living expenses and couldn't prove that she had actually been in the Atlanta area she Said that she had she was able to show a receipt for two days of hotel stays But these were many many days of living expenses she had no proof of having been in the Atlanta area She said she'd stayed in hotels for two years But couldn't identify any documentation to support that and in fact again at the hearing she

[00:24:04] Speaker 01:
admitted she never set up permanent residence in the Atlanta area.

[00:24:08] Speaker 03:
What, if anything, did the administrative judge or the full board say about Mr. Hunter's point that during a couple of years, she never missed a day in Atlanta when she was supposed to be in Atlanta?

[00:24:27] Speaker 03:
Which would be pretty hard to do if she was immobile.

[00:24:30] Speaker 01:
Well, unfortunately it appears it wasn't that hard.

[00:24:34] Speaker 01:
She was on a four day a week work schedule.

[00:24:37] Speaker 01:
Two of those days were telework.

[00:24:40] Speaker 01:
So now we're down to two days.

[00:24:42] Speaker 01:
We're talking here about a seven-month period.

[00:24:45] Speaker 01:
It's not years.

[00:24:46] Speaker 01:
And during three months of that, apparently, there was some sickness issue, so she wasn't in any way.

[00:24:52] Speaker 01:
It's of note that the investigator, Mr. Fonterre, came to her office to interview her on one of the days she was supposed to be there.

[00:24:59] Speaker 01:
She wasn't there.

[00:25:00] Speaker 01:
Now, certainly, she would have leave and be entitled to take it.

[00:25:03] Speaker 03:
How much of this of what you're now saying is actually in the AJ's opinion or the board's opinion as opposed to you're describing what the underlying evidence?

[00:25:14] Speaker 03:
Certainly.

[00:25:16] Speaker 01:
The four day a week work schedule, I believe, is in the AJ's opinion.

[00:25:24] Speaker 01:
The investigator coming the first time is in the testimony.

[00:25:27] Speaker 01:
It's in the supplemental appendix, but it's not in the opinion.

[00:25:30] Speaker 01:
The issue, frankly, Ms.

[00:25:32] Speaker 01:
Washington didn't argue this all must be true because nobody charged me with not showing up for work.

[00:25:38] Speaker 01:
So we don't think that would have worked as a defense for the reasons that the evidence shows, but that's not an issue she put in front of the administrative judge.

[00:25:46] Speaker 01:
If she had wanted to make that argument, she needed to raise it there, or at least to the full board, to say, oh, you got it all wrong.

[00:25:53] Speaker 01:
I was at work every day.

[00:25:54] Speaker 01:
She didn't make that point.

[00:25:56] Speaker 01:
So that isn't fairly, honestly, that shouldn't be considered now.

[00:25:59] Speaker 01:
It wasn't raised below.

[00:26:03] Speaker 01:
Judge Newman, you asked me to go through the remaining specifications.

[00:26:08] Speaker 01:
Under the first charge has to do with making a false representation of having moved.

[00:26:12] Speaker 01:
She admitted that she hadn't moved.

[00:26:14] Speaker 01:
And then the second charge was for conduct on becoming.

[00:26:19] Speaker 01:
And this was for making false documents using government records, using government equipment.

[00:26:26] Speaker 01:
This is a credibility challenge, Mr. Fonter said.

[00:26:30] Speaker 01:
These don't appear to be correct.

[00:26:31] Speaker 01:
They don't appear to have the right dates.

[00:26:33] Speaker 01:
There's no underlying documents, Ms.

[00:26:34] Speaker 01:
Washington said.

[00:26:35] Speaker 01:
They're correct.

[00:26:36] Speaker 01:
They're what happened.

[00:26:37] Speaker 01:
The administrative judge made a credibility determination that Mr. Fonterra was correct.

[00:26:43] Speaker 01:
He ruled in that way, having viewed the evidence in the first instance.

[00:26:48] Speaker 01:
And that is substantial evidence to support that charge.

[00:26:54] Speaker 01:
So for those reasons, Your Honors, as we said, we think the court has jurisdiction.

[00:26:58] Speaker 01:
And we'd ask that the decision below be affirmed.

[00:27:01] Speaker 02:
Thank you, Mr. Lyons.

[00:27:02] Speaker 01:
Thank you.

[00:27:07] Speaker 00:
Thank you.

[00:27:09] Speaker 00:
I'll try to cram 12 minutes into this 450.

[00:27:15] Speaker 00:
With regards to, with spec two, what he's talking about, they charged her with, the actual charge is, I'm gonna get it, and they said that she misused her work computer for personal gain, or for personal reasons.

[00:27:35] Speaker 00:
the documents they point to are the documents she submitted to the government for reimbursement.

[00:27:46] Speaker 00:
My reading of what misuse of the work computer, if she had run payroll for Courtyard Manor off of that, that would be misuse.

[00:27:55] Speaker 00:
But the only documents they have are documents that if she's going to submit a receipt, it has to be

[00:28:05] Speaker 00:
on her work computer.

[00:28:06] Speaker 00:
And so they're arguing that doing what they tell her to do is a misuse of the work computer, and it just doesn't stick.

[00:28:19] Speaker 00:
With regards to charge one, what he's talking about, he says, well, judge, even if you ignore the metadata,

[00:28:26] Speaker 00:
Look at all this other stuff about her.

[00:28:28] Speaker 00:
One, she never confessed that she never said that she had not moved away from Mobile.

[00:28:38] Speaker 00:
She didn't say that.

[00:28:41] Speaker 00:
They said that she had a nomadic existence.

[00:28:43] Speaker 00:
Well, again, her nomadic existence was all in the Atlanta area.

[00:28:47] Speaker 00:
Yes, sometimes she did stay in a hotel because her brother-in-law's house, she had to stay in her brother-in-law's house because she was just going through a divorce.

[00:28:57] Speaker 00:
Then around the time of the move, she's going through a divorce.

[00:29:01] Speaker 00:
Her four-day work week included two weeks where she's doing a TDY in Jacksonville, in Texas, in London, looking at Rolls-Royce building jet engines.

[00:29:13] Speaker 00:
Those kinds of things that they had her doing.

[00:29:15] Speaker 00:
On top of the fact that in the seventh month span, she spent three of it recovering from emergency surgery.

[00:29:22] Speaker 00:
So she never really had time to set up a permanent address.

[00:29:28] Speaker 00:
Most of the time she was living with her brother-in-law in Ellenwood, Georgia, which, if you don't know, the geography of Atlanta is the southeast corner of the Atlanta metro area.

[00:29:40] Speaker 00:
And Smyrna is in the northwest corner.

[00:29:44] Speaker 00:
As someone, I may have driven in Atlanta traffic more than anybody in this room.

[00:29:49] Speaker 00:
And if you don't leave at 3.30 in the morning, she wouldn't be in Smyrna by 8 o'clock near Stone Mountain.

[00:29:57] Speaker 00:
And so sometimes she would stay.

[00:30:00] Speaker 00:
There was a base, mile, mile and a half from her station, and there was a courtyard there.

[00:30:07] Speaker 00:
That's the receipt she showed was for the courtyard on the base.

[00:30:10] Speaker 00:
And so sometimes she would stay on her two days instead of driving all the way back to her brother's in between her two work days, she'd stay at the hotel in between.

[00:30:21] Speaker 00:
And again, part of the time, her first seven months there complaining she wasn't there, she had use it or lose it time that she used.

[00:30:29] Speaker 00:
That's in the record.

[00:30:30] Speaker 00:
It is in the record on the transcript about her doing the four-day work week.

[00:30:33] Speaker 00:
But she had use it or lose it time.

[00:30:35] Speaker 00:
She had accrued all these hours working in Baghdad.

[00:30:37] Speaker 00:
She had to use before it went away.

[00:30:39] Speaker 00:
And then she had the emergency surgery.

[00:30:41] Speaker 00:
We're talking about just a matter of a few days.

[00:30:43] Speaker 00:
They're saying, aha, you didn't move.

[00:30:48] Speaker 00:
And something else to remember is,

[00:30:50] Speaker 00:
The record shows they started this investigation in December of 2013, and she didn't submit these documents until June of 14.

[00:31:01] Speaker 00:
So they were just looking for a reason to get rid of her.

[00:31:05] Speaker 00:
And then they came up with this metadata stuff and said, aha, we got it.

[00:31:11] Speaker 03:
With regards to... In the record, did she provide an explanation of

[00:31:18] Speaker 03:
You know, no original invoices from the moving company from courtyard.

[00:31:22] Speaker 00:
The old man died.

[00:31:23] Speaker 03:
No checks, you know, or bank payment records or credit card company payment records.

[00:31:29] Speaker 00:
They didn't bring, because the old man died.

[00:31:32] Speaker 00:
The old man that ran the moving company died.

[00:31:34] Speaker 00:
That kind of, there are emails before the move where they negotiated it.

[00:31:40] Speaker 00:
There's emails in the record where her husband was negotiating with this company.

[00:31:45] Speaker 00:
But afterwards, the old man died, and it was a one-man outfit.

[00:31:48] Speaker 00:
I got 20 seconds.

[00:31:48] Speaker 00:
One of the things else I'm going to mention is they mentioned about the bankruptcy and about her $2,200 and moving 20,000 pounds of stuff.

[00:31:55] Speaker 00:
She had just gone through a divorce at the same time she's doing all this stuff.

[00:31:59] Speaker 00:
And so half of that stuff was David Washington's.

[00:32:02] Speaker 00:
And I got 321, so I'm done.

[00:32:05] Speaker 00:
Thank you.

[00:32:07] Speaker 02:
Thank you.

[00:32:08] Speaker 02:
Thank you both.

[00:32:09] Speaker 02:
The case is taken under submission.