[00:00:00] Speaker 02:
Twenty fourteen ninety-nine Franco against the Defense Logistics Agency.

[00:00:05] Speaker 02:
Mr. Lawler.

[00:00:07] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:10] Speaker 01:
My name is Brian Lawler.

[00:00:12] Speaker 01:
I represent the petitioner in this case, Christina Franco.

[00:00:15] Speaker 01:
I would like to apologize in advance to counsel and the Court.

[00:00:18] Speaker 01:
I'm dealing with a little bit of a throat issue, so I'll try to mute myself as I have to clear my throat, but it's been a bit of a problem for the last couple of days.

[00:00:27] Speaker 01:
Ms.

[00:00:27] Speaker 01:
Franco,

[00:00:29] Speaker 01:
is here to ask the court to reverse and remand the Merit Systems Protection Board's initial decision in which it dismissed her case as moot and did not allow her to amend her initial appeal to include a constructive discharge claim that stemmed from the same set of facts that

[00:00:53] Speaker 01:
gave rise to the underlying claim of hostile work environment discrimination to her detriment, which ultimately forced her to resign.

[00:01:00] Speaker 01:
In other words, a constructive discharge claim.

[00:01:03] Speaker 01:
The board committed reversible error in opining that because Ms.

[00:01:09] Speaker 01:
Franco no longer worked for the Defense Logistics Agency, her claim was necessarily moot and because she immediately secured other employment and had no

[00:01:19] Speaker 01:
economic wage loss, that there were no remedy available to Ms.

[00:01:23] Speaker 01:
Franco.

[00:01:24] Speaker 02:
What remedy are you looking for?

[00:01:26] Speaker 01:
The equitable remedy, Your Honor, of front pay.

[00:01:31] Speaker 01:
It's abundantly clear in case law.

[00:01:34] Speaker 02:
Front pay measures on what measure?

[00:01:38] Speaker 01:
That's a rather subjective measuring stick, not to be

[00:01:43] Speaker 01:
flippant about that, but it's rather subjective.

[00:01:45] Speaker 01:
And the cases in which front pay is awarded, again, as an equitable remedy.

[00:01:50] Speaker 01:
There's no question it's not a matter of an element of damages, but it is allowed under USERRA for a court or the board to use its full equity powers and award front pay.

[00:02:03] Speaker 01:
Cases under various other anti-discrimination statutes, whether it be the ADA or the ADA or...

[00:02:12] Speaker 03:
But isn't that the law of use as it applies to private litigants or corporations?

[00:02:28] Speaker 03:
That's not the USERA provision that applies to the federal government, which has, you know, only provided certain level of relief given the federal government's sovereign immunity.

[00:02:41] Speaker 01:
Excuse me, Your Honor.

[00:02:42] Speaker 01:
I have to apologize.

[00:02:43] Speaker 01:
The majority of what Your Honor just said was garbled and cut off.

[00:02:48] Speaker 01:
I heard the last part, which I think the gist of your question was, how does the equitable relief we're seeking, which is specifically provided for in 4323 for state and private employers, apply to the federal government under 4324?

[00:03:02] Speaker 01:
Is that the gist of your answer?

[00:03:04] Speaker 03:
That is the gist of what I said, which is I don't see where it applies under 4324.

[00:03:08] Speaker 03:
So tell me why I'm wrong.

[00:03:10] Speaker 01:
Right.

[00:03:11] Speaker 01:
Well, I hate to tell judges that they're wrong, Your Honor, but I respectfully disagree, and I would invite the court to look at Section 4324, p. c., p. n.

[00:03:17] Speaker 01:
3, and 4324 c.

[00:03:22] Speaker 01:
3, which does apply to the federal government.

[00:03:26] Speaker 01:
reads in part that any compensation received by a person pursuant to an order under paragraph two, which provides for economic damages in cases against the federal government brought before the board, shall be in addition to other rights or benefits provided by the chapter and shall not diminish any right or benefit provided by the chapter.

[00:03:48] Speaker 01:
So Congress, it appears clearly, is incorporating by reference

[00:03:54] Speaker 01:
the other remedies available under 4323.

[00:03:56] Speaker 02:
Well, I think your problem here is that you don't assert economic damages.

[00:04:03] Speaker 02:
I gather there was no period of unemployment that in terms of mootness, it looks as if that was a factor that was considered.

[00:04:17] Speaker 01:
There's no dispute that that was considered, Your Honor, and there's no dispute that Ms.

[00:04:20] Speaker 01:
Franco didn't suffer any economic damages.

[00:04:22] Speaker 01:
Our position is that we feel supported by caseload.

[00:04:26] Speaker 02:
What are you asking for if there was no economic injury?

[00:04:31] Speaker 01:
The equitable remedy of front pay.

[00:04:34] Speaker 01:
Front pay, when reinstatement is not an option, necessarily has to be in monetary compensation.

[00:04:40] Speaker 01:
It's a subtle distinction, but they're not damages because she doesn't have any damages.

[00:04:44] Speaker 01:
But courts, and we've cited many of them, but courts have and do provide monetary compensation when reinstatement is not an available alternative.

[00:04:54] Speaker 00:
Can you cite a case where the board has used granted equitable relief, the kind you're talking about?

[00:05:01] Speaker 01:
We cannot cite a case, Your Honor.

[00:05:02] Speaker 01:
It's a matter of first impression for a case coming to this circuit through the Merit Systems Protection Board.

[00:05:08] Speaker 00:
You're asking us to create law here.

[00:05:13] Speaker 01:
We're asking the court to create law to follow other circuits which have done so that we cite in our brief.

[00:05:23] Speaker 01:
None has applied this to the Merit System Protection Board, because none that I'm aware of has come before this court asking for this relief.

[00:05:31] Speaker 01:
But the other circuits that we cite in our briefs, excuse me, in our opening brief, have done so abundantly.

[00:05:40] Speaker 01:
And again, whether it is under the merit system, excuse me, under USERA, which now there are several cases in which front pay was provided under USERA.

[00:05:49] Speaker 01:
They're done quite frequently under the other anti-discrimination statutes I mentioned a moment ago.

[00:05:55] Speaker 01:
But there is no, there is no, it's, the catch 22 is hostile work environment and discrimination are cognizable causes of action that have been recognized by this court.

[00:06:06] Speaker 01:
It was Peterson versus Department of the Interior in 1996.

[00:06:10] Speaker 01:
case brought before the board but in a hostile work environment discrimination then constructive discharge or wrongful term case if as here there are no economic damages if the appellant were to find like in our case it would seem they left holding the bag and there is no

[00:06:40] Speaker 01:
recourse.

[00:06:40] Speaker 01:
Well, that's not what we feel the law provides.

[00:06:42] Speaker 01:
The law provides front pay as an element of equitable relief, because she can't go back to work at DLA.

[00:06:48] Speaker 01:
Then we get to, well, what is that number, as Your Honor correctly pointed out?

[00:06:52] Speaker 01:
We don't know that.

[00:06:53] Speaker 01:
It is a very subjective determination to be made by the trial court, or in this case, the board, to determine what the element of front pay would be.

[00:07:01] Speaker 01:
And it's usually a function, excuse me, Your Honor,

[00:07:05] Speaker 01:
it's usually a function of the amount of time that the appellant or plaintiff had to deal with the hostile work environment and what ultimately resulted.

[00:07:13] Speaker 01:
Because many hostile work environment claims don't result in termination or constructive discharge.

[00:07:17] Speaker 01:
This one did.

[00:07:18] Speaker 01:
We feel it was an abuse of discretion by the board not to even address that issue.

[00:07:25] Speaker 00:
Could it be because that issue doesn't exist in law?

[00:07:29] Speaker 01:
That's certainly a

[00:07:31] Speaker 01:
an observation that one could make, I would again respectfully disagree with it.

[00:07:33] Speaker 00:
So how are you saying that they abuse their discretion if equitable relief doesn't even exist?

[00:07:45] Speaker 00:
You're asking us to link different sections of a statute and don't give us any legal authority to do that.

[00:07:57] Speaker 01:
Well, Your Honor, I would invite the court to look at what I think is page 26 in our initial, what's actually page 19 of the brief, but as filed as page 26 of the ECF filing.

[00:08:11] Speaker 00:
There have been no circuits, sir, there have been no circuits that have found equitable powers under 4324, correct?

[00:08:21] Speaker 00:
That is absolutely true, because that would be this circuit only, because the only place... If that's the case, then how can you say that there's been an abuse of discretion here?

[00:08:32] Speaker 01:
Well, the court, the board didn't properly look at some of the authority recited that said, look, other circuits have done so.

[00:08:39] Speaker 00:
Maybe, yeah, maybe they have, but they found that there's no authority, there's no authority out there that gives the board the authority to do this.

[00:08:50] Speaker 01:
I don't find... Yeah.

[00:08:56] Speaker 00:
I don't find that... Sorry.

[00:08:59] Speaker 00:
Go ahead, sir.

[00:09:01] Speaker 01:
No, sir.

[00:09:01] Speaker 01:
I'm sorry for interrupting.

[00:09:07] Speaker 00:
Well, it's just the point you're asking us to create law.

[00:09:10] Speaker 00:
You're asking us to do what I think Congress would have to do, and we don't have the authority to do that.

[00:09:18] Speaker 00:
I mean, I don't even see that you're making a compelling argument as to why we should read together these two different sections and create a link that's not there.

[00:09:35] Speaker 01:
Your Honor, respectfully, we think 4324C3 does incorporate the equitable relief available under 4323.

[00:09:43] Speaker 01:
And the fact that Congress said any

[00:09:48] Speaker 01:
economic damages shall be in addition to any other right or benefit provided by you, Sarah, and shall not diminish that.

[00:09:55] Speaker 01:
So just because the Federal Circuit and the MSPB have not so ruled doesn't mean they can't.

[00:10:01] Speaker 01:
This is clearly a matter of first impression.

[00:10:03] Speaker 03:
We are asking this question.

[00:10:06] Speaker 03:
I have a quick question.

[00:10:07] Speaker 03:
I hear what you're saying, but one of the reasons why I have a big problem with your position, which is that we're supposed to take language in 4323 and read it into section 4324.

[00:10:19] Speaker 03:
But if Congress meant that, wouldn't they have put it expressed in 4324?

[00:10:25] Speaker 03:
That's a canon of statutory construction that we can't just ignore, right?

[00:10:31] Speaker 01:
There's no question about that, Your Honor.

[00:10:32] Speaker 01:
They could have put it in there, but again, our position, and I think the benchmark on which we rely is, I see my overtime.

[00:10:39] Speaker 01:
May I finish my answer to the question?

[00:10:40] Speaker 02:
Yes, please do.

[00:10:42] Speaker 01:
Yes, ma'am.

[00:10:44] Speaker 01:
Again, as Your Honor pointed out, it's not codified in 4324.

[00:10:47] Speaker 01:
There's no dispute about that.

[00:10:49] Speaker 01:
Congress could have put this language in about full equitable powers.

[00:10:54] Speaker 01:
It did not, but we feel 4324C3 incorporates it by reference.

[00:10:59] Speaker 01:
and refers to in addition to other rights provided by the chapter.

[00:11:02] Speaker 01:
And the chapter would be the entire statute, not just 4324, and shall not diminish any other such rights.

[00:11:08] Speaker 01:
So we feel like Congress just chose not to be verbose and redundant and simply incorporated 4323's damages and equitable relief provisions in 4324C3.

[00:11:18] Speaker 01:
Thank you, Your Honors.

[00:11:22] Speaker 02:
Okay, thank you.

[00:11:23] Speaker 02:
Let's hear from the other side.

[00:11:26] Speaker 04:
Thank you, Your Honor.

[00:11:27] Speaker 04:
May it please the court.

[00:11:29] Speaker 04:
We respectfully request that the court affirm the administrative judge's dismissal of Ms.

[00:11:35] Speaker 04:
Franco's appeal.

[00:11:37] Speaker 04:
It doesn't seem to be disputed by either party that Ms.

[00:11:41] Speaker 04:
Franco did not suffer a loss of wages or benefits.

[00:11:45] Speaker 04:
And therefore, under the plain language of 4324, there is no effectual relief that the administrative judge could have granted.

[00:11:54] Speaker 04:
Ms.

[00:11:55] Speaker 04:
Franco's argument on appeal relies on an inapplicable statute and cases interpreting that statute.

[00:12:02] Speaker 04:
Section 4324, as the court has already recognized, applies only to state or private employers and not the federal government.

[00:12:11] Speaker 04:
Ms.

[00:12:11] Speaker 04:
Franco did not raise the argument of incorporation under 4324C3 in her brief, but even if

[00:12:22] Speaker 04:
she had.

[00:12:23] Speaker 04:
It's not persuasive because the plain language of 4324 provides only for the two remedies and not for an equitable remedy as Congress very clearly provided in 4323.

[00:12:37] Speaker 04:
And therefore, we believe that the administrative judge properly dismissed her claim as moot.

[00:12:43] Speaker 04:
Additionally, the second

[00:12:47] Speaker 04:
claim that Ms.

[00:12:48] Speaker 04:
Franco raises is whether the administrative judge abused her discretion by denying Ms.

[00:12:52] Speaker 04:
Franco's motion to dismiss her appeal.

[00:12:55] Speaker 04:
And we would just note that the administrative judge has wide discretion in the administration of her docket, and Ms.

[00:13:02] Speaker 04:
Franco has not put forth any argument that shows that the administrative judge's denial of that motion amounted to an abuse of discretion.

[00:13:11] Speaker 02:
Thank you.

[00:13:15] Speaker 02:
Any questions for counsel?

[00:13:19] Speaker 02:
All right, Mr. Lawler, you have the last word.

[00:13:23] Speaker 01:
Your Honor, I appreciate the opportunity.

[00:13:25] Speaker 01:
I only need to speak if Your Honors have questions for me.

[00:13:29] Speaker 01:
I think I've spoken what I heard, said what I needed to say in my initial argument.

[00:13:34] Speaker 02:
Okay, any more questions from the panel?

[00:13:37] Speaker 02:
All right, thanks to both counsel and the cases taken under submission.