[00:00:00] Speaker 01:
The argument is 19-2293, Espera Guerra versus Army.

[00:00:06] Speaker 01:
Mr. Walker, whenever you're ready.

[00:00:10] Speaker 04:
Thank you, Chief Judge Prost, and good morning.

[00:00:12] Speaker 04:
May it please the court?

[00:00:14] Speaker 04:
Certain things are just not in dispute here.

[00:00:16] Speaker 04:
The government does not dispute that Maria Espera Guerra was denied notice and an opportunity to respond both before and after the removal from the Senior Executive Service and the motion... Mr. Walker, this is Judge Lorry.

[00:00:30] Speaker 00:
We're very happy to have you in our courtroom, but you'll have to convince me that your case doesn't belong here.

[00:00:39] Speaker 00:
Your client was entitled to an informal hearing, which she had, but we don't have jurisdiction over informal hearings.

[00:00:52] Speaker 00:
We have jurisdiction over final orders or decisions of the board.

[00:00:59] Speaker 00:
And your client did not get that.

[00:01:02] Speaker 00:
So why shouldn't we dismiss this appeal?

[00:01:07] Speaker 04:
So I would disagree that she did not receive a final order decision of the board, which is all the 7703 requires.

[00:01:14] Speaker 04:
There's no dispute here that the order she did receive was an order of the board.

[00:01:18] Speaker 04:
The only dispute is whether it was a final order.

[00:01:21] Speaker 04:
But it plainly was.

[00:01:22] Speaker 04:
It was the last thing the board did with respect to Mrs. Barragera's removal.

[00:01:26] Speaker 04:
and it conclusively ended all of the board proceedings in this case.

[00:01:31] Speaker 04:
The court's jurisdiction under 7703 is not, as the government suggests, limited to final orders or decisions that are issued under the appellate procedures of Title V, Section 7701.

[00:01:44] Speaker 04:
As this court squarely held in the Horner case and the TC Circuit before in the Frazier case, discussed in our reply group at page 6, review under 7703 also applies to cases that fall within the board's

[00:01:56] Speaker 04:
original jurisdiction, such as informal hearings pursuant to Section 3592.

[00:02:02] Speaker 04:
And the board's regulations recognize that the board had jurisdiction there at 5 CFR, Section 1201, 121A.

[00:02:12] Speaker 04:
It says, quote, the board has original jurisdiction over removals of career appointees from the senior executive service for performance reasons.

[00:02:22] Speaker 04:
That describes this case exactly.

[00:02:24] Speaker 04:
So the board had jurisdiction over the case.

[00:02:26] Speaker 04:
and it concluded with an order that was the final order of the board.

[00:02:32] Speaker 04:
And while the case was... And what did the final order decide?

[00:02:36] Speaker 04:
It declined to issue a decision on the legality of her removal, which we argue was error and a violation of due process.

[00:02:45] Speaker 04:
And while it referred the record to other agencies, nothing in 7703

[00:02:50] Speaker 04:
says anything about other agencies.

[00:02:53] Speaker 04:
It only requires a final order of the board, which this was.

[00:02:58] Speaker 04:
The government can see those other agencies did not have to do anything, have not done anything, and are not expected to do anything in light of the final board order here.

[00:03:08] Speaker 04:
And if finality did depend on whether some other agency might do something, employees would not know when to appeal.

[00:03:15] Speaker 04:
They couldn't tell when the appeal clock, which runs from when the board issues notice of the final order,

[00:03:20] Speaker 04:
would start or stop.

[00:03:22] Speaker 04:
The jurisdictional rules should be clear.

[00:03:24] Speaker 04:
And I'd also add that the strong presumption of judicial review, you know, needs to inform this court's interpretation

[00:03:33] Speaker 04:
of 7703 because we have a final order that, yes, Your Honor.

[00:03:38] Speaker 01:
I just want to move off of the jurisdictional question a little, a broadened a little.

[00:03:42] Speaker 01:
Tell me what in your view she was entitled to that she failed to get at the board level.

[00:03:53] Speaker 04:
So at the board level, because she was deprived of the property interest, she was entitled to meaningful post removal review.

[00:04:01] Speaker 04:
And the government doesn't dispute that when there is a deprivation of property appropriate post removal review.

[00:04:08] Speaker 01:
So the board was supposed to evaluate her performance appraisal.

[00:04:18] Speaker 01:
That was the issue, right?

[00:04:20] Speaker 01:
I mean that was the basis for her reassignment.

[00:04:24] Speaker 04:
Yes, it should have evaluated whether the agency's decision

[00:04:28] Speaker 04:
was conducted, was supported by at least substantial evidence or supported by a proponent of the evidence, whether it was conducted in accordance with the procedures required by law and whether it was consistent with her due process rights.

[00:04:43] Speaker 04:
A neutral decision maker is all we want, someone who can rectify the errors that happened before the agency.

[00:04:52] Speaker 04:
And speaking of those, the process that Ms.

[00:04:54] Speaker 04:
Sparadera was due before she was removed from the senior executive service, we've asserted both constitutional and non-constitutional grounds for relief.

[00:05:03] Speaker 03:
Yeah, but, counsel, until you move on to that, I mean, we're only one minute into your argument or so, I don't know, a couple minutes in, I'd really like you to spend more time on this jurisdictional question because, like Judge Florey, that is, for me, a very big stumbling block in this case.

[00:05:21] Speaker 03:
I mean, how, for example, do you contend with the fact that 3592, which is the only thing that establishes her entitlement to this informal hearing, expressly says, such hearing shall not give the career appointee the right to initiate an action with the board under 7701?

[00:05:37] Speaker 04:
So all that language does is say that a particular kind of board proceeding that she cannot receive that, the appellate procedure is a 7701.

[00:05:49] Speaker 04:
But it doesn't say that the informal hearing... But that's the basic appellate.

[00:05:52] Speaker 00:
That's the basic appellate route for an employee from the MSPB, isn't it?

[00:05:57] Speaker 04:
It is the basic one, but there are also cases.

[00:06:02] Speaker 04:
They're said to fall within the board's original jurisdiction.

[00:06:06] Speaker 04:
And that's what the board's regulations say an informal hearing is here.

[00:06:09] Speaker 04:
And actually, when ALJs are removed from office, that's how they obtain board review under Section 7521.

[00:06:17] Speaker 04:
That's like an informal hearing.

[00:06:19] Speaker 04:
It falls within the board's original jurisdiction.

[00:06:21] Speaker 04:
And this court has authority to review the ALJ's appeals from that as well, as we discussed at page 6.

[00:06:28] Speaker 01:
So what's your citation to the reviewability here?

[00:06:32] Speaker 01:
Are you saying there's another statutory provision we should be looking at with respect to these SES employees?

[00:06:39] Speaker 04:
Well, so there is no express statutory right to review for the ALJs.

[00:06:45] Speaker 04:
other than the broad and generally applicable rate to judicial review under 7703, which is not linked to Section 7701 as this Court held in Horner and the D.C.

[00:06:59] Speaker 04:
Circuit before it explained in Frazier.

[00:07:01] Speaker 04:
Likewise, this Court's jurisdiction under 28 U.S.C.

[00:07:05] Speaker 04:
Section 1295A.9 does not limit itself

[00:07:10] Speaker 04:
to cases that arose under 7701.

[00:07:13] Speaker 03:
Council, I agree with you that 7703 is not limited to 7701, and you agree that she's not entitled to 7701 process because of 3592, but my question is what, 7703 does limit our review

[00:07:29] Speaker 03:
to final orders or decisions of the Merit Assistance Protection Board.

[00:07:33] Speaker 03:
Can you explain to me again what your best argument is for why this order, which is an order referring the record to another agency, nonetheless amounts to a final order or decision of the MSPB?

[00:07:47] Speaker 04:
Well, so it is an order.

[00:07:49] Speaker 04:
It's labeled as an order and no one disputes that it's an order.

[00:07:52] Speaker 04:
And it's final because it's the last thing the board had to say about this particular proceeding.

[00:07:58] Speaker 04:
There are no further board proceedings.

[00:08:00] Speaker 04:
There will be no further board decisions, orders, or hearings with respect to her case.

[00:08:07] Speaker 04:
And if we're trying to figure out when the right to review and the time for review is activated, that provides a clear jurisdictional role that employees and this court can follow.

[00:08:20] Speaker 04:
And again, one of our arguments is that it was a violation of due process and a misinterpretation of 3592 itself for the board not to review the legality of Mrs. Sparadier's removal from the senior executive service.

[00:08:36] Speaker 00:
And so if that's not... Council, you're familiar with the Greenhouse case from the D.C.

[00:08:41] Speaker 00:
District Court, which of course is not binding on us.

[00:08:46] Speaker 00:
If it were a decision of this court, would you agree it's directly on points?

[00:08:51] Speaker 04:
So I think one would have to ask whether that would still be good law in light of Elgin, the Supreme Court's decision in Elgin from 2013, I believe, where the court explained that where the CSRA channels someone to a board proceeding, any constitutional or other claims need to proceed through the board and then through this court to review.

[00:09:16] Speaker 04:
And that's the proper way to do it, rather than proceeding in a district court.

[00:09:20] Speaker 04:
And I also, in terms of the greenhouse's analysis of what 3592 itself entitles someone to, it erroneously relied on the board's Berger and Charo decisions, which it failed to appreciate that there is a protected property interest in a career senior executive service appointment.

[00:09:45] Speaker 04:
And I really urge the court to compare the language that we have here

[00:09:49] Speaker 04:
to the statutes that were issued in cases like Hellman and Riley, which applied the strong presumption of judicial review and the even stronger presumption of judicial review of constitutional claims.

[00:10:00] Speaker 04:
In Hellman, the statute expressly said a decision was final notwithstanding Section 7703 and the court still held that it didn't borrow review of constitutional claims under 7703 itself.

[00:10:13] Speaker 04:
Likewise, in Riley, a decision was deemed final, inclusive, not subject to review, but major procedural errors could still be reviewed by this court.

[00:10:23] Speaker 04:
Again, the board issued an order.

[00:10:26] Speaker 04:
It is a final order in these proceedings, and that is all that 7703 requires, particularly in light of the presumption of judicial review.

[00:10:32] Speaker 03:
Steve, can I ask you a question before he stops?

[00:10:34] Speaker 03:
Of course.

[00:10:35] Speaker 03:
So my question to you is, I don't think either party cited Jones versus MSPB.

[00:10:42] Speaker 03:
It's a case out of this court.

[00:10:45] Speaker 03:
I think it's non-PREC, which may be why you didn't cite it.

[00:10:50] Speaker 03:
But in the Jones case, it was a request to reopen an appeal.

[00:10:55] Speaker 03:
And we held that that didn't amount to a final order.

[00:11:00] Speaker 03:
So it was the last thing issued by the board.

[00:11:05] Speaker 03:
It is an order denying the request to reopen, the third repetitive request to reopen, I should say.

[00:11:19] Speaker 04:
I'm not familiar with that case, but I would guess that if it was to reopen an appeal that had previously concluded with a final order that had been the point at which

[00:11:29] Speaker 04:
board proceedings were expected to stop, that earlier order would have been, um, appealable under 7703.

[00:11:35] Speaker 04:
And I think that's essentially where we are here.

[00:11:41] Speaker 04:
Um, and I know I'm eating to my rebuttal time, but I would very likely, uh, very quickly like to address the government's only other disputed question.

[00:11:49] Speaker 04:
Um, it only disputes two questions of law, and that's whether there's a protected property interest in the SDS appointment.

[00:11:54] Speaker 04:
And there clearly is this property interest when a specific benefit can only be taken away for specific reasons.

[00:12:00] Speaker 04:
Here, a career senior executive service appointment can only be taken away for specific reasons like cause or unacceptable performance.

[00:12:08] Speaker 04:
A demotion from that appointment is a deprivation of property that entitles someone to due process.

[00:12:14] Speaker 04:
Congress has told us this is a demotion or a reduction grade because it

[00:12:19] Speaker 04:
Senior Executive Service is classified above GS-15 under Section 3132A2 of Title 5, and she was taken from a position above GS-15 to a lower position at GS-15, and that's clearly in the motion.

[00:12:34] Speaker 04:
And there's finally no dispute that if she was deprived of property interest, she was denied the due process to which she is entitled, and that the proper remedy is her reinstatement.

[00:12:43] Speaker 04:
And I'd like to reserve the remainder of my time.

[00:12:44] Speaker 04:
Thank you.

[00:12:45] Speaker 04:
Thank you.

[00:12:47] Speaker 01:
Ms.

[00:12:47] Speaker 01:
Finan, signing.

[00:12:56] Speaker 01:
Council.

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

[00:13:00] Speaker 02:
This is Molly Finan on behalf of the Army.

[00:13:03] Speaker 01:
Yes.

[00:13:04] Speaker 02:
May it please the court, we submit on behalf of the Army that the Civil Service Reform Act is a comprehensive and exclusive

[00:13:13] Speaker 02:
mechanism that defines the rights and obligations of the parties in this case, and that's pursuant to the Supreme Court's Elgin decision.

[00:13:21] Speaker 02:
Mrs. Bergara received all of the process and relief that was her due.

[00:13:26] Speaker 02:
She has no right under the CSRA to an adjudication of the merits of her removal or her reassignment.

[00:13:34] Speaker 02:
As the court previously pointed out, Section 3592A1 guarantees her only a right to an informal hearing, which she received

[00:13:43] Speaker 02:
and the district court's, United District Court for the DC's greenhouse decision and the MSPB's Charo and Berger decision further confirm that.

[00:13:55] Speaker 03:
Council, suppose that I was of the view that she was horrifically deprived of due process in this case.

[00:14:03] Speaker 03:
Suppose that that was my view.

[00:14:05] Speaker 03:
How could she ever get

[00:14:09] Speaker 03:
in front of an Article III tribunal, is there simply no way at all?

[00:14:16] Speaker 03:
I mean, I understand your arguments about how she did not perfect an appeal over which we have jurisdiction in this case.

[00:14:24] Speaker 03:
Is there any way she could have?

[00:14:31] Speaker 02:
I think it would be highly fact-specific, and there's an endless array of factual scenarios.

[00:14:38] Speaker 02:
She could have, as other SES and non-SES have done, asked the administrative law judge to make rulings.

[00:14:50] Speaker 02:
He might have denied the obligation to make a ruling.

[00:14:55] Speaker 02:
He might have made a ruling on the merits.

[00:14:57] Speaker 02:
That might have created a final appealable order to this court.

[00:15:01] Speaker 01:
What about going to district court?

[00:15:06] Speaker 02:
Well, pursuant to the Elgin case,

[00:15:08] Speaker 02:
District court would seem to be available only if this court were to find or the courts generally were to find that she is not covered by the CSRA.

[00:15:19] Speaker 02:
To the extent she is covered by the CSRA, her rights are defined by the CSRA and her avenues of relief would be only to the ALJ and the board and in appropriate factual circumstances to this court on appeal.

[00:15:35] Speaker 02:
We have submitted that those factual circumstances are not here because the order referring record that she purports to appeal in this case, it does not contain that decision on anything, right?

[00:15:47] Speaker 02:
There were no motions for additional process that were denied.

[00:15:52] Speaker 02:
There were no requests of the ALJ for anything that she was denied.

[00:15:59] Speaker 02:
So the order simply is a ministerial act that collected a record

[00:16:03] Speaker 03:
So Council, I want to make sure I understand your response to my initial question.

[00:16:08] Speaker 03:
Because she did indicate in her briefing to the ALJ that she thinks it's wrong that the ALJ can't

[00:16:17] Speaker 03:
review this, that she believed she was denied due process.

[00:16:20] Speaker 03:
She made those arguments, but then ultimately she seemed to acquiesce, I don't remember the precise language, in the idea that the ALJ couldn't actually decide the constitutional concerns that she had.

[00:16:32] Speaker 03:
And so they're not addressing this opinion ultimately, or this referral order.

[00:16:37] Speaker 03:
So, are you saying that if she had said to the ALJ, I want you to address my due process, you must address my due process, you are required to address my due process issues, if she had made arguments like that and if the ALJ had responded by saying, we can't actually assess

[00:16:56] Speaker 03:
constitutionality because we're an administrative tribunal or whatever.

[00:16:59] Speaker 03:
If they had declined to do so and indicated any partial reason, then the entire due process issue would be squarely in front of this court?

[00:17:11] Speaker 02:
I would say it might be, yes, to the extent that an actual constitutional argument was developed below.

[00:17:19] Speaker 02:
Your honor is correct that the record reflects generalized statements of grievance

[00:17:25] Speaker 02:
before the ALJ that she was not being given all that she felt that was her due, procedurally and substantively.

[00:17:33] Speaker 02:
But there is in the record below absolutely no development of those arguments.

[00:17:38] Speaker 02:
There's no citation to any authority.

[00:17:40] Speaker 02:
There's no application of law to fact.

[00:17:42] Speaker 02:
There's no development of fact to support any of those issues.

[00:17:46] Speaker 02:
So the ALJ did what he was obligated to do pursuant to statute.

[00:17:51] Speaker 02:
He facilitated Mrs. Cerragarra's collection of a record

[00:17:55] Speaker 02:
That record was memorialized, and it was referred to OPM, OSC, and the Army.

[00:18:00] Speaker 02:
She was not, did not.

[00:18:02] Speaker 00:
Counsel, this is Judge Laurie.

[00:18:04] Speaker 00:
Just to clarify, I think we're dealing with an AJ here rather than ALJ.

[00:18:08] Speaker 00:
But on the merits, would you say that there is no constitutional right to a particular job in the federal government, particularly in SES position?

[00:18:23] Speaker 02:
Yes, Your Honor is correct.

[00:18:26] Speaker 02:
Mrs. Bergera devotes substantial argument to the premise that she has been denied a notice and opportunity that you heard, denied procedural due process under the Constitution.

[00:18:40] Speaker 02:
But she skips over that initial inquiry of whether she had a property or liberty interest at stake in the first instance.

[00:18:46] Speaker 02:
And as we submitted in our brief, and I'll repeat here,

[00:18:50] Speaker 02:
She has not established that there was any constitutionally protected property right at stake here.

[00:18:57] Speaker 02:
She is asking the court, albeit not overtly, to recognize a new property right in an SDS position.

[00:19:05] Speaker 02:
But no authority has ever done so in the past.

[00:19:08] Speaker 02:
And the authorities to have considered the issue have limited the property right to continued employment.

[00:19:14] Speaker 02:
Her continued employment has never been at stake here.

[00:19:17] Speaker 02:
She, before the removal, was employed by the Army, and she remains employed by the Army.

[00:19:23] Speaker 02:
She was simply reassigned from one personnel system to another.

[00:19:28] Speaker 00:
And she kept her salary?

[00:19:30] Speaker 02:
She did keep her salary.

[00:19:33] Speaker 02:
She kept her salary level.

[00:19:35] Speaker 02:
And on that, I can point you to some pages in the record.

[00:19:39] Speaker 02:
Her SF-50.

[00:19:41] Speaker 03:
Council.

[00:19:43] Speaker 03:
This is Judge Moore.

[00:19:44] Speaker 03:
She kept her salary, but hasn't her potential salary increases be diminished by virtue of the move from SES to GS-15?

[00:19:56] Speaker 03:
She is not going to receive the increases she would have, as is SES.

[00:20:01] Speaker 03:
She's going to ultimately have a much lower salary under the GS-15.

[00:20:05] Speaker 02:
Is that correct?

[00:20:10] Speaker 02:
Well, this goes back to the exhaustion requirement.

[00:20:13] Speaker 02:
She did not raise these arguments below.

[00:20:15] Speaker 03:
I didn't ask whether she raised them.

[00:20:17] Speaker 03:
I asked if my understanding is correct to the fact.

[00:20:22] Speaker 02:
She will not earn in a GS-15 position, you're correct.

[00:20:26] Speaker 02:
She will not ultimately earn what she might have earned as an SES.

[00:20:31] Speaker 02:
But courts to consider the issue have found that she has no property interest

[00:20:36] Speaker 02:
based on a future speculative potential to earn more money or to earn bonuses, future prospects of advancements, that sort of thing.

[00:20:46] Speaker 02:
That's this court's Wilson decision and the board's Berger decision.

[00:20:50] Speaker 02:
There is no property right created in those future prospects.

[00:20:57] Speaker 02:
On this record, and as reflected in the record at 829 and 431, first salary as an SDS, a basic salary,

[00:21:06] Speaker 02:
rolled over to a GS-15 position, as did her SES lead balance, which is higher than a GS.

[00:21:12] Speaker 02:
There was no reduction in pay or grade.

[00:21:16] Speaker 02:
I would like to correct for the record what we believe to be a misstatement by plaintiff's counsel.

[00:21:23] Speaker 02:
A change in personnel system from SES to GS-15 is not a reduction in grade.

[00:21:33] Speaker 02:
The authority cited section 5 US 23132 does not say that SES is a grade above GS15.

[00:21:41] Speaker 02:
It says SES is classified above GS15.

[00:21:45] Speaker 02:
That is a reference to rank and not grade.

[00:21:49] Speaker 02:
In 1978,

[00:21:50] Speaker 02:
Counsel.

[00:21:52] Speaker 03:
Yes.

[00:21:52] Speaker 03:
Counsel, this is Seth Moore again.

[00:21:54] Speaker 03:
One sort of thing that caught me in this process, which is part of why I'm struggling with whether or not she has a property right, is because there's actually a statute that guarantees her continued status as an SES except for two things, for poor performance or misconduct.

[00:22:13] Speaker 03:
So she's got sort of a statutory guarantee of remaining in the SES position and only these two things

[00:22:20] Speaker 03:
can warrant her removal from the SES.

[00:22:23] Speaker 03:
Doesn't that statutory award create a property interest?

[00:22:33] Speaker 02:
The property interest to be extended exists would be only as defined.

[00:22:38] Speaker 03:
Counsel, I'm sorry, I can't hear you at all.

[00:22:44] Speaker 02:
Well, performance.

[00:22:45] Speaker 03:
Counsel, I still can't hear you.

[00:22:47] Speaker 03:
Can you please turn the volume up or take yourself off speaker?

[00:22:52] Speaker 02:
Oh, I'm sorry.

[00:22:53] Speaker 02:
Apologies, Your Honor.

[00:22:57] Speaker 02:
Her property interest would be defined by the CSRA.

[00:23:00] Speaker 02:
And as you know, there is a statute that provides someone has a position in SES unless and until poor performance or misconduct.

[00:23:09] Speaker 02:
But that in and of itself doesn't create the property right.

[00:23:13] Speaker 02:
Courts that consider this issue have found there is no property interest in a particular position.

[00:23:19] Speaker 02:
SES is not a higher grade than GS-15.

[00:23:23] Speaker 02:
It may be a higher rank, but the CSRA got rid of an appealable adverse action for reduction in rank in 1978.

[00:23:31] Speaker 02:
Grade is defined in 5 U.S.C.

[00:23:35] Speaker 02:
7511A3 to mean a classification under a position classification system.

[00:23:41] Speaker 02:
She did not change grade within the SDS, nor did she change grade within GS-15.

[00:23:46] Speaker 02:
She went from SDS to GS-15.

[00:23:49] Speaker 02:
And this, of course, Wilson's decision and the MSP Huberger's decision have found that those are not, that's not the type of transfer that would be a reduction in grade.

[00:24:00] Speaker 03:
Okay, Council, thank you.

[00:24:01] Speaker 03:
Your responses were helpful to me on this point.

[00:24:03] Speaker 03:
But do you mind if I pivot you now?

[00:24:06] Speaker 03:
I have a question about misconduct versus poor performance.

[00:24:10] Speaker 03:
One of the things that's troubling me about the course of government action in this case is that Congress clearly contemplated two scenarios in which SES employees could be removed.

[00:24:22] Speaker 03:
They could be removed for misconduct or they could be removed for poor performance.

[00:24:27] Speaker 03:
And there is no question among any of the parties, it's undisputed, that if she were removed for misconduct, she would absolutely have a right of appeal and she could assert the due process concerns that she has in this case.

[00:24:40] Speaker 03:
But if she is instead removed for poor performance, the government's position is she has no rights of appeal at all.

[00:24:48] Speaker 03:
Is that correct?

[00:24:50] Speaker 03:
That's correct.

[00:24:53] Speaker 03:
So what is the reason she was removed in this case?

[00:24:57] Speaker 03:
Since Congress has laid out two alternative paths, one of which they clearly contemplated

[00:25:04] Speaker 03:
If misconduct is the basis for her removal, she has a right to appeal.

[00:25:09] Speaker 03:
Because, you know, when it comes to misconduct, my children would be the first ones to tell you, there are a lot of extenuating circumstances, Mom.

[00:25:17] Speaker 03:
You know, yes, I ate the cookies, but you deprived me of lunch, or whatever.

[00:25:20] Speaker 03:
You know, there are often, and I don't mean to belittle her claims, by the way, by analogizing them to my kids.

[00:25:26] Speaker 03:
But in any event, the point being, Congress clearly contemplated a right of appeal

[00:25:31] Speaker 03:
If misconduct formed the basis for the removal, what is the basis for her removal in this case?

[00:25:41] Speaker 02:
Yes, Your Honor, the basis for removal is for performance.

[00:25:44] Speaker 02:
Based on what?

[00:25:46] Speaker 03:
Based on the removal decision at Appendix 6-8.

[00:25:51] Speaker 03:
That doesn't answer my question.

[00:25:53] Speaker 03:
Why was she deemed to have poorly performed?

[00:25:58] Speaker 02:
because the undersecretary, as articulated in her removal notice, found that he had lost confidence in her ability to perform duties, and I'm reading from Appendix 6.

[00:26:09] Speaker 00:
I have lost confidence in her ability.

[00:26:11] Speaker 00:
Wasn't the answer that she used this rotation plan to give a potential employee timing grade that he wouldn't otherwise have had?

[00:26:23] Speaker 00:
Wasn't that the issue?

[00:26:26] Speaker 03:
Yeah.

[00:26:28] Speaker 03:
And isn't that the very misconduct though?

[00:26:32] Speaker 03:
You see my point and you're trying to evade it, which I understand why because it's very hard.

[00:26:37] Speaker 03:
It's hard for me to believe if I'm a textualist that Congress intended someone who was fired solely on the basis of an act of misconduct should have a right of appeal.

[00:26:47] Speaker 03:
And yet Congress would have permitted the agency to morph what is clearly only a misconduct determination into a poor performance

[00:26:57] Speaker 03:
rubric such that it could evade the right of appeal she would otherwise have had.

[00:27:02] Speaker 03:
That's my concern.

[00:27:05] Speaker 02:
Yes, Your Honor.

[00:27:06] Speaker 02:
And so courts, I have two responses to that.

[00:27:09] Speaker 02:
This court's delude decision does a good job of explaining that if the actions, if there's no indicia of misconduct, an agency must proceed with a performance-based removal.

[00:27:22] Speaker 02:
But if the actions may or may not have indicia of misconduct,

[00:27:26] Speaker 02:
then the agency has the option to proceed under either Chapter 75 or Chapter 35.

[00:27:33] Speaker 02:
That is at their election, and it inured in this case to Mrs. Berger's benefit.

[00:27:39] Speaker 02:
Had she been removed from this conduct, yes, she would have had appeal rights, but she would have been removed from federal service entirely, right?

[00:27:47] Speaker 02:
She would have lost her job, and yes, that would have triggered a property interest at that point.

[00:27:52] Speaker 02:
The agency, in recognition of her 30 years of service and the fact that this was a single instance, albeit a grave one, instead of going that route, they removed her from SDS and reassigned her to GS-15 on the basis of unsuccessful performance.

[00:28:11] Speaker 02:
And that allowed her to keep her employment in the federal civil service.

[00:28:17] Speaker 02:
It's a part of the delicate balancing act that Congress,

[00:28:21] Speaker 02:
determined, right, in that in exchange for no appeal rights, Congress gave individuals in Mrs. Barragar's position the right to fall back into another SES position or to fall back into another personnel system.

[00:28:36] Speaker 02:
That's the trade-off that Congress made.

[00:28:38] Speaker 02:
Wait, Council, can I make sure I understand?

[00:28:40] Speaker 03:
Maybe I may not understand the difference between removal for misconduct and removal for performance.

[00:28:45] Speaker 03:
Is every person who's removed for poor performance automatically maintained federal employment?

[00:28:56] Speaker 02:
Not every person, SES, specifically career SES, such as Mrs. Ferragara was.

[00:29:03] Speaker 03:
So a career SES employee who's removed for poor performance is guaranteed continued employment?

[00:29:11] Speaker 02:
Yes.

[00:29:12] Speaker 02:
But 5 USC 3595, sorry, 5 USC 3594 gives her a guaranteed fallback to either another vacant SDS position or to an equivalent tenure in another personnel system, presumptively GS 15.

[00:29:35] Speaker 03:
Okay, one more question along those lines.

[00:29:37] Speaker 03:
Is it the case that a removal for misconduct automatically results in her removal from all government service or could a removal for misconduct also amount to, you know, a transfer or a demotion to a GS-15 or whatever you want to call it?

[00:29:55] Speaker 02:
No, the rem- the statutory remedies for removal of a non-probationary career SDS would be either removal from federal services entirely

[00:30:06] Speaker 02:
or for suspension of more than 14 days.

[00:30:11] Speaker 03:
Okay.

[00:30:11] Speaker 03:
I thank you.

[00:30:12] Speaker 03:
That helps me understand something.

[00:30:14] Speaker 03:
One last question.

[00:30:15] Speaker 03:
Is it really the case, the facts in this case, that her supervising authority, who is the person who does her performance reviews, rated her as an outstanding for the relevant time period and even when presented with

[00:30:29] Speaker 03:
evidence that she may have committed improper personnel procedures in the course of hiring an employee.

[00:30:37] Speaker 03:
He nonetheless said even taking that into account, I still continue to maintain her outstanding performance rating as a five and that in my 30 years of government service, I've never seen someone better than her basically.

[00:30:51] Speaker 03:
I may not be getting it 100% exactly right, but are those the facts?

[00:30:56] Speaker 02:
Almost.

[00:30:59] Speaker 02:
So the laudatory praise of Mrs. Barraguera appeared in connection with the initial rating.

[00:31:09] Speaker 03:
But then he subsequently declined to change that at all, even after being informed about the potentially prohibited personnel practice.

[00:31:18] Speaker 02:
Yes, he did.

[00:31:20] Speaker 02:
But further to the factual point,

[00:31:26] Speaker 02:
Commissioner's brief is replete with allegations that the Secretary of the Army does not dispute facts.

[00:31:32] Speaker 02:
We do dispute the facts.

[00:31:33] Speaker 02:
We do believe she was given all the process to which she was due.

[00:31:37] Speaker 03:
She was not... Council, let me just... I know your time is up, but I'm just going to stop you.

[00:31:44] Speaker 03:
You might be right on jurisdiction.

[00:31:45] Speaker 03:
You may even be right on the property right, but I think this lady was horrifically deprived of due process, and I'm embarrassed that you're standing here saying otherwise.

[00:31:53] Speaker 03:
I think that the process

[00:31:55] Speaker 03:
the secretive process that took her out of the ability to respond without knowledge of what was going on, where even the very supervisor who supervised her for many years and who continued to think she was outstanding was cut out of the process of deciding what her performance review should be for that year.

[00:32:14] Speaker 03:
I think that that behavior was outrageous and I absolutely think it violates due process.

[00:32:19] Speaker 03:
And since your time is up, I suggest you sit down, because you may have won on point one, you may have won on point two, but you will never win with me on point three.

[00:32:28] Speaker 01:
But since we're over time, I don't want to prolong this too long, but I would just like a clarification following up on Judge Moore's point, which is, I guess I was surprised by your answer early on, because I read, I didn't read the government's brief as foreclosing her ability to make, provide, appeal,

[00:32:48] Speaker 01:
go forward with a due process challenge in district court.

[00:32:52] Speaker 01:
In fact, the government, I think in its brief, cites the Coleman case from the DC District Court, Davis versus Billingham from the DC District Court,

[00:33:01] Speaker 01:
And there are other post-elgin district court cases where employees not entitled to MSPB review, which I thought you were arguing was this case, get a district court case for due process challenge.

[00:33:15] Speaker 01:
Now, I don't expect the government to say positively

[00:33:19] Speaker 01:
She does have a challenge, but I guess I was a little surprised because you seem to suggest that even that avenue of trying the due process challenge in district court was somehow foreclosed or not appropriate.

[00:33:32] Speaker 01:
And I was surprised by that.

[00:33:33] Speaker 01:
Is that your position?

[00:33:36] Speaker 02:
Your Honor, I think it's a very nuanced question that would be highly fact dependent.

[00:33:42] Speaker 02:
So you're right.

[00:33:44] Speaker 02:
This is also an issue of first impression, to what extent the CSRA provides remedies for someone in this particular position.

[00:33:53] Speaker 02:
So there's a lot of uncharted territory here and to some extent the government's answer is not finite.

[00:34:02] Speaker 02:
All I can say is I think it's highly fact dependent.

[00:34:06] Speaker 01:
If you're aware of the cases I've just cited to you and there are others coming out of the DC district court and elsewhere, correct?

[00:34:14] Speaker 02:
Yes.

[00:34:15] Speaker 01:
All right.

[00:34:15] Speaker 01:
Thank you.

[00:34:17] Speaker 01:
Mr. Walker, we'll come back to you for rebuttal now.

[00:34:23] Speaker 04:
Thank you, Your Honor.

[00:34:24] Speaker 04:
And I'll get back to the jurisdictional questions very briefly.

[00:34:27] Speaker 04:
But to answer Judge Moore's question about why she was removed, it was, quote, based on OSC's finding that she had committed a prohibited personnel practice containing an OSC report.

[00:34:39] Speaker 04:
that was admittedly withheld from her until after action had been taken based on the report.

[00:34:43] Speaker 04:
That's Appendix 443 of her department's council admitted it was withheld from her.

[00:34:48] Speaker 04:
Addressing the Jones case that was raised earlier, that held the denial of the motion to reopen was really an attempt to just prolong the time for seeking an appeal, which isn't the case here.

[00:34:58] Speaker 04:
We timely appealed from the order, and Jones distinguished an earlier case called McCarthy

[00:35:04] Speaker 04:
uh... which recognized that uh... such deny such orders can be appealable appropriate circumstances on jurisdiction the government appears to admit that it would be sufficient if uh... we raise below the argument that she was entitled to a decision from the l j and she did that and it's important to keep the entire context of this proceeding in view the a l j repeatedly not just at the hearing but throughout this uh... the process before the board and appendix one thirty seven

[00:35:33] Speaker 04:
762 and an 842 at the beginning of the hearing said, I am not going to issue a decision.

[00:35:39] Speaker 04:
The board regulations forbid me from doing that.

[00:35:42] Speaker 04:
Nonetheless, Mrs. Sparra-Garris council objected 854 under the fifth amendment.

[00:35:49] Speaker 04:
She was entitled to a written decision.

[00:35:51] Speaker 04:
She will not get that process due to her 857.

[00:35:54] Speaker 04:
No decision will issue in this proceeding.

[00:35:56] Speaker 04:
The implementation here of 3592 a two does not meet the constitutional standard.

[00:36:02] Speaker 04:
And then again, on the very next page, at appendix 858, the ALJ again explained he was constrained by the regulations, as previously stated, that he could not issue a decision on the legality of her removal.

[00:36:16] Speaker 04:
So we preserved it fully.

[00:36:19] Speaker 04:
And those interlocutory decisions that he would not issue a decision on the legality for removal ripened when he issued the final order here.

[00:36:30] Speaker 04:
entitling her to seeking that trigger of her right to judicial review, and she can obtain review of that refusal to provide a merit decision.

[00:36:40] Speaker 04:
And additionally, under this court's precedents, such as board versus GSA, true cited, someone is not required to make futile arguments in order to preserve them for this court's review.

[00:36:51] Speaker 04:
And here, although we did it, it was futile to make that because the board regulations and precedents made clear that the ALJ's hands were tied.

[00:36:58] Speaker 04:
And the board doesn't have any forum to change those.

[00:37:05] Speaker 01:
Can I just ask one final question, Mr. Walker, and it's the point that I obsessively pressed with the other side, which is, is it not your view that if things don't go the way you'd prefer in the court today, that you think you do have a chance or a likelihood of being able to press the due process claim in district court?

[00:37:31] Speaker 04:
So while we think that 7703 and the presumption of judicial review title us to review here,

[00:37:36] Speaker 04:
You know, it may be difficult under Elgin to obtain review when the CSRA channels us to the merit system protection board.

[00:37:43] Speaker 04:
I think the Elgin makes clear that that's supposed to come up to this court for review.

[00:37:47] Speaker 04:
But if the court holds that we cannot take that, then I think, again, the serious constitutional questions that define review of these constitutional claims would necessitate being able to take some sort of district court action.

[00:38:01] Speaker 04:
But again, I think 7703 provides all the textual support that this court needs to hear her case and to reinstate her.

[00:38:09] Speaker 01:
Thank you.

[00:38:10] Speaker 04:
Thank you.

[00:38:11] Speaker 01:
Anything further from my colleagues?

[00:38:13] Speaker 01:
If not, we thank both parties.

[00:38:18] Speaker 01:
The case is submitted, and that will conclude our proceedings for this morning.

[00:38:22] Speaker 01:
Thank you.

[00:38:24] Speaker 04:
The Honorable Court is adjourned day to day.