[00:00:04] Speaker 01: The first case this morning is 19-1374, Kamunkun v. Defense. [00:00:11] Speaker 01: Mr. Fowler, whenever you're ready. [00:00:15] Speaker 01: Thank you, Your Honor. [00:00:19] Speaker 03: May it please the Court, Ms. [00:00:24] Speaker 03: Kamunkun was denied her right to a full and fair hearing. [00:00:31] Speaker 02: On page 3 of the Red Break, the government says you never raised [00:00:35] Speaker 02: your argument that the MSPB's election remedies regulation found at 5 CFR 1209 B to D is statutorily invalid and unconstitutional. [00:00:48] Speaker 02: Did you present that argument? [00:00:50] Speaker 03: Yes, Your Honor. [00:00:52] Speaker 03: Where in the record? [00:00:54] Speaker 03: I covered that in the brief and in the reply brief. [00:01:00] Speaker 03: May I say this, Your Honor? [00:01:03] Speaker 04: The reply brief in this court? [00:01:05] Speaker 04: You mean the brief and reply brief in this court? [00:01:07] Speaker 03: Yes. [00:01:08] Speaker 02: Yes. [00:01:08] Speaker 02: Where did you cover it in the record below? [00:01:10] Speaker 03: Yes. [00:01:12] Speaker 03: The administrative judge consistently imposed regulation 1209. [00:01:22] Speaker 03: And we consistently objected to that and said no. [00:01:28] Speaker 03: Now, how we articulated it or parsed those words, perhaps we could argue about. [00:01:37] Speaker 03: Well, you could. [00:01:38] Speaker 02: Did you raise unconstitutionality? [00:01:41] Speaker 03: Not explicitly. [00:01:43] Speaker 02: Did you raise an argument that it was statutorily invalid? [00:01:49] Speaker 03: As it applied to her, I would say yes. [00:01:54] Speaker 02: Can you show me in the record below? [00:01:58] Speaker 02: I'll let you do it when you come back up. [00:02:03] Speaker 03: What I would say about that, though, Your Honor, is we did consistently oppose this action being treated or confined to an individual right of action appeal. [00:02:21] Speaker 03: We consistently opposed that. [00:02:23] Speaker 03: Now, how you articulate that [00:02:26] Speaker 01: Well, let me ask this. [00:02:27] Speaker 01: How are we? [00:02:29] Speaker 01: What's your problem with what the government is saying? [00:02:31] Speaker 01: The government is saying, OK, we messed up. [00:02:33] Speaker 01: We need a remand. [00:02:36] Speaker 03: I don't have a problem, Your Honor. [00:02:37] Speaker 03: I'm sorry. [00:02:37] Speaker 03: I'm sorry. [00:02:38] Speaker 01: All right. [00:02:39] Speaker 01: So does the case end? [00:02:40] Speaker 01: I mean, why are we still fighting over it? [00:02:41] Speaker 01: The government says we need a remand. [00:02:43] Speaker 01: We agreed that there should be a remand. [00:02:46] Speaker 01: Good point. [00:02:46] Speaker 01: Because we misconstrued the statute. [00:02:48] Speaker 01: If you're agreeing with that, OK, what else do you have in terms to complain about other than that? [00:02:57] Speaker 03: I really don't argue about that. [00:03:01] Speaker 03: When the government, what I think the government and of course Mr. Yale, I can't speak for him, but what I can say is, as I understand it from the brief, there's a slight difference as to how we characterize the error. [00:03:20] Speaker 03: And there's a slight difference of opinion as to the scope of what that remand should be. [00:03:27] Speaker 03: But the government, as I understand it, admits error, and they admit there should be a remand. [00:03:36] Speaker 03: May I just bounce back to your question for a moment, Your Honor? [00:03:44] Speaker 03: For the appellant below to actually say this is unconstitutional, this is invalid, [00:03:55] Speaker 03: to the AJ below. [00:03:57] Speaker 03: That really wouldn't have mattered as I see it. [00:04:06] Speaker 02: That is how you preserve your record, you know. [00:04:10] Speaker 03: I know, because the AJ really had no authority or power to do anything except impose that regulation. [00:04:18] Speaker 03: And he had no power or authority to find that regulation unconstitutional. [00:04:26] Speaker 03: And if we want to go and say, well, what about an interlocutory? [00:04:31] Speaker 03: At that point in time, when that happened, you couldn't have done an interlocutory because of the situation at the board. [00:04:42] Speaker 03: So that would be it. [00:04:47] Speaker 03: Your Honor, you asked me about the remand. [00:04:57] Speaker 03: I think the scope of any remand, and Mr. Yale argues it should be limited. [00:05:05] Speaker 03: The scope is best left up to the AJ and the parties. [00:05:09] Speaker 03: on remand, because it can get very complicated. [00:05:13] Speaker 01: Why don't you give us a preview of what's so complicated? [00:05:17] Speaker 01: What do you think you would differ with Mr. Young? [00:05:21] Speaker 03: OK. [00:05:21] Speaker 03: I'm saying, and I'm coming here this morning, Your Honor, to ask for a full remand to give her right to a full chapter 75 adjudication as to whether she did it or not. [00:05:39] Speaker 03: And the finding that was reached below was that the evidence the agency had was strong. [00:05:46] Speaker 03: And since it was strong, it passed the reprisal test. [00:05:51] Speaker 03: Well, that's no surrogate finding for whether she really did it. [00:05:56] Speaker 03: So I need a finding on whether she really did it. [00:06:00] Speaker 03: And then also the way the judge approached this thing, [00:06:05] Speaker 03: was he said nothing is an issue except reprisal. [00:06:11] Speaker 03: We have in here a very significant, very important due process argument to make if we can get back there and get a full hearing. [00:06:22] Speaker 04: And what exactly is the due process claim that you would raise in a 75 appeal as opposed to the IRA? [00:06:33] Speaker 03: Yes, the due process argument is that, essentially, it distills to this. [00:06:40] Speaker 03: The deciding official directed an investigation, got the investigation, made findings and conclusions pursuant to the investigation. [00:06:53] Speaker 03: and turn them over with instructions how to proceed to the proposing official. [00:07:02] Speaker 03: So that gives me, and should most people, a lot of heartburn right there. [00:07:10] Speaker 03: And whether you want to say harmful procedural error or due process, I would say due process. [00:07:17] Speaker 03: So that is another key issue. [00:07:19] Speaker 01: What should have happened instead of that? [00:07:22] Speaker 03: Well, there should have been some kind of wall between the two and not instructions. [00:07:27] Speaker 03: This gets very similar to the case that this court had in what was at Griffith versus a DOD Department of Education that bounced around for years here, where the proposing and the deciding official were giving instructions by top staff how to handle this. [00:07:49] Speaker 03: So, you know, I think there should have been some purity between the proposing official, the deciding official, and in fact how the investigation was handled. [00:08:06] Speaker 04: Now, do you agree that with respect to 7121G that [00:08:15] Speaker 04: Your client is not an employee for purposes of Chapter 71? [00:08:20] Speaker 03: Absolutely, Your Honor, absolutely, absolutely. [00:08:23] Speaker 04: I thought there was some question in the briefs as to whether you were on board with that, but you are on board, that she's not an employee and therefore nothing in 71-21G applies to her. [00:08:33] Speaker 03: No, no. [00:08:34] Speaker 03: The elections. [00:08:35] Speaker 03: Yeah. [00:08:35] Speaker 03: I was looking at my reply brief last night, and I think I got myself wrapped around the axle a little bit on that. [00:08:43] Speaker 03: But you're right, she is not under 71-21G. [00:08:46] Speaker 04: And that's consistent with the government's position. [00:08:49] Speaker 03: Yeah, yeah, because she is a supervisor. [00:08:52] Speaker 04: And so all of the discussion in the briefs about the constitutionality of 71-61-21G's election and the [00:09:03] Speaker 04: the regulations really has nothing to do with this case. [00:09:08] Speaker 03: Well, the regulation on his face would clearly apply to her. [00:09:13] Speaker 04: Except it applies to employees, as I understand it, which is defined in the statute not to include her. [00:09:21] Speaker 04: So unless you say that employee in the regulation means something other than employee in the statute, I don't see how the regulation applies to her. [00:09:31] Speaker 03: You know, Your Honor, we have all of these laypeople and employees and so forth coming up and we give them all this information. [00:09:40] Speaker 03: Nobody, no supervisor or manager, as I read the rate, would read it and say, this doesn't apply to me. [00:09:47] Speaker 03: You really have to do a lot of research. [00:09:50] Speaker 03: to go back and look at the Labor Relations Statute 71 and get into that definition to figure it out. [00:10:01] Speaker 03: I mean, on its face, it applies to everybody, and that's done a lot of damage. [00:10:07] Speaker 03: But, you know, in a strict view, you're right. [00:10:17] Speaker 01: All right. [00:10:17] Speaker 01: Well, you're in dear rebuttal time. [00:10:18] Speaker 01: Why don't we hear from you? [00:10:34] Speaker 00: May it please the court? [00:10:36] Speaker 00: I'd like to address a few issues. [00:10:38] Speaker 00: The first issue about whether or not the constitutionality [00:10:42] Speaker 00: and whether the regulation exceeds the statutory authority. [00:10:46] Speaker 00: I mean, that was clearly not raised below. [00:10:48] Speaker 00: And there's reasons why, even if the AJ may not have had the authority to rule it unconstitutional, you would want to have briefing. [00:10:59] Speaker 00: The AJ, if they were presented with those arguments, may have actually decided to go forward, for example, with a full hearing, including the chapter 75. [00:11:09] Speaker 00: action and those issues. [00:11:12] Speaker 01: What's your view of what the scope of the reading is? [00:11:15] Speaker 00: Well, as we set forth in our brief, we do think there's been a couple of issues that have been raised by petitioner that would be fair game. [00:11:25] Speaker 00: The first one is this harmful procedural error that was raised. [00:11:29] Speaker 04: So you agree that that's open for reconsideration, initial consideration by the [00:11:35] Speaker 00: Yes, and I mean I think that AJ would need to look at the record that was presented to him in the hearing and see whether or not the testimony is already sufficient on that. [00:11:47] Speaker 00: But if you look at the decision, because he essentially dismissed the Chapter 75 action for the election reasons, he didn't do an analysis specifically [00:12:02] Speaker 00: I think what we have here is an ex parte communication potential issue. [00:12:08] Speaker 00: I don't think that there was, you know, that there wasn't really an analysis in the decision of that. [00:12:15] Speaker 04: And then presumably also the AJ would have to analyze the efficiency of the service issue. [00:12:21] Speaker 00: Correct. [00:12:22] Speaker 04: Which is not part of an IRA. [00:12:23] Speaker 00: Correct. [00:12:25] Speaker 00: But in terms of when Petitioners' Council talks about the scope of a full remand, there were four days of hearings here. [00:12:34] Speaker 02: There's an extensive underlying factual record. [00:12:36] Speaker 00: There's an extensive underlying factual record, and much of that gets to the whistleblower issues. [00:12:42] Speaker 00: which have the same burdens of proof, the same issues factually would be presented. [00:12:49] Speaker 00: And it doesn't make sense to essentially go back to square one on that. [00:12:53] Speaker 04: And isn't that a question that the AJ is in the best position to judge as to whether the record is as complete as it needs to be for purposes of the affirmative defenses under 75 as it was for purposes of the initial IRA appeal? [00:13:11] Speaker 04: Well, why should we be in a position to say, AJ, you must not hear any more evidence on this? [00:13:18] Speaker 04: You must decide this predicated on what you previously decided. [00:13:21] Speaker 02: Well, really, the only question is whether they want more. [00:13:25] Speaker 02: I mean, what's there is there, which is extensive. [00:13:28] Speaker 02: But that doesn't mean the AJ won't say, [00:13:31] Speaker 00: Well, I suppose the AJ may use their discretion if there's some additional issue that's raised. [00:13:37] Speaker 00: But in this appeal, there's never really been an articulation of what exactly that is. [00:13:43] Speaker 00: And we think there should be other limitations to this remand as well. [00:13:49] Speaker 01: Because, for example, what's the first limitation that should not allow the AJ the discretion to allow further testimony or evidence to come in? [00:14:00] Speaker 00: Well, we don't think that the whistleblower issues need to be re-tried again as putting on additional evidence. [00:14:08] Speaker 00: You know, there's been an extensive record, four days of hearing testimony. [00:14:14] Speaker 04: But aren't you saying that you would like us to tell the A.J. [00:14:18] Speaker 04: that the whistleblower issues are out of the case? [00:14:22] Speaker 00: Well, I think whether or not you specifically prohibit them or not, I think that the record has been extensive. [00:14:29] Speaker 04: I understand, but we have to issue a judgment in this case. [00:14:34] Speaker 04: So what I'm asking you is, what form should that judgment take? [00:14:37] Speaker 04: Does the government want us to say, these issues, there's substantial evidence in the case already, but the AJ [00:14:45] Speaker 04: ought to make a determination as to whether more evidence needs to be heard and ultimately decide the affirmative defenses on that basis or do you want us to have in the judgment the AJ is not to address the whistleblower issues because that has already been decided. [00:15:02] Speaker 00: As we set forth in our brief, we think that the court should affirm the whistleblowing issues and not allow further testimony. [00:15:09] Speaker 00: So the latter is what you want in the judgment. [00:15:11] Speaker 00: Correct. [00:15:12] Speaker 00: And we also would like a limitation that discrimination issues should not be raised. [00:15:17] Speaker 00: And again, besides the harmful procedural error, discrimination was really the other major... Well, haven't they been clear in the case? [00:15:27] Speaker 01: Well, they have, Your Honor. [00:15:29] Speaker 00: That's correct. [00:15:30] Speaker 00: They have, Your Honor, but when we're talking about, when Petitioner's Council is talking about a full remand, which, you know, again, from their brief, we really don't exactly know what that means. [00:15:40] Speaker 00: And so we do think that, given where we are, you know, we think that there should be certain limitations in not [00:15:49] Speaker 00: have to basically put on every witness again, especially to go through, for example, these whistleblowing issues that have been extensively addressed. [00:16:04] Speaker 04: And you said there were other issues that you thought should be part of our judgment dictating to... Well, the other part of it would be petitioner [00:16:16] Speaker 00: below had an opportunity to identify affirmative defenses for this chapter 75 case. [00:16:23] Speaker 00: From the record, it seems unclear whether they ever actually complied with that. [00:16:27] Speaker 00: But the pre-hearing submissions indicated that the affirmative defenses that they were raising included discrimination and included this harmful procedural error. [00:16:37] Speaker 00: So we also don't think, if it's remanded below, that it [00:16:40] Speaker 00: then petitioner can then come up with you know some other defense that has not previously been raised because the error [00:16:50] Speaker 00: here, the alleged error here, was this election, which happened really close to the hearing. [00:16:58] Speaker 00: So it doesn't make sense to have something along a full remand going all the way back to the beginning of the case. [00:17:05] Speaker 00: That just doesn't seem to be resolving the error that occurred below. [00:17:12] Speaker 00: And so that's an additional limitation that we would think would make sense in this case. [00:17:25] Speaker 00: And if there's nothing further, we would request that the court affirm essentially the whistleblowing claims in this case. [00:17:32] Speaker 04: Well, actually, you're not asking for an affirmance. [00:17:35] Speaker 04: You're asking for a remand. [00:17:37] Speaker 00: A remand, yes. [00:17:39] Speaker 00: And a remand consistent with the discussion that we had in accordance with what issues would be able to be raised below. [00:18:00] Speaker 01: are out of this case, right? [00:18:03] Speaker 03: I am not disputing that, Your Honor. [00:18:05] Speaker 03: No, no. [00:18:06] Speaker 03: And will not be raised? [00:18:08] Speaker 03: We will not raise them, Your Honor. [00:18:09] Speaker 03: We did that on our 4 and 15. [00:18:12] Speaker 03: And yes, they're going. [00:18:15] Speaker 03: They're going. [00:18:19] Speaker 03: There's been some mention of these constitutional issues. [00:18:25] Speaker 03: Yes, I raised it. [00:18:26] Speaker 03: Yeah, I know. [00:18:27] Speaker 03: Just while I really think a lot of times when I reference that, and I was talking about constitutional conditioning and stuff like that, that was more, I guess, of a consequence as what was happening as a result of this reg here. [00:18:48] Speaker 03: If there is a remand, you're absolutely right, Judge Bryson. [00:18:52] Speaker 03: There's service efficiency, there's reasonableness of penalty, there's a possibility of mitigation, a whole bunch of issues. [00:19:03] Speaker 03: Now, Mr. Yale may be right, and I think the judge is in the best position to determine that, to what extent are we bound [00:19:13] Speaker 03: by the findings on reprisal below in the first action and maybe significantly. [00:19:22] Speaker 03: But yet there are those other issues and paramount of them, I said, was we have a significant due process question and also I'm greatly troubled by a finding that [00:19:42] Speaker 03: the agency's evidence was strong enough to pass a no-reprisal test being used as a surrogate finding for did she really do this, which is a finding that she's entitled to under Chapter 75. [00:20:03] Speaker 02: The underlying factual [00:20:10] Speaker 02: issues may be the same. [00:20:12] Speaker 02: Pretty much. [00:20:13] Speaker 02: Yeah, pretty much. [00:20:15] Speaker 02: Yes, Your Honor. [00:20:17] Speaker 02: We understand what you're saying. [00:20:20] Speaker 02: I want to take you back to that. [00:20:21] Speaker 02: I take what you said about constitutional arguments. [00:20:25] Speaker 02: You mean that you didn't find anything where you raised it in the record below. [00:20:28] Speaker 03: Yes, yes. [00:20:30] Speaker 03: I glanced at the Joint Appendix, Your Honor, and I have something at 319 and 423 [00:20:40] Speaker 03: And what those are, those are mainly responses. [00:20:45] Speaker 03: And I think there are more, but those are the ones I could find where appellant is saying, hey, you can't join these. [00:20:56] Speaker 03: Where on 319? [00:21:08] Speaker 02: And you said 423? [00:21:09] Speaker 02: 423. [00:21:10] Speaker 02: So I'll start with 319. [00:21:32] Speaker 03: I'm sorry, 318, 319. [00:21:38] Speaker 03: Oh, this is an extensive response to his honor below. [00:21:52] Speaker 03: I'm going over the treating this perhaps as an IRA and show cause on your IRA finding. [00:22:07] Speaker 03: Admittedly, we're not articulating as clear as you can. [00:22:15] Speaker 03: Is the word constitution on this page? [00:22:17] Speaker 03: I don't see it. [00:22:20] Speaker 02: I'm sure it's not, Your Honor. [00:22:21] Speaker 02: I'm sure it's not. [00:22:22] Speaker 02: Yeah. [00:22:23] Speaker 02: Nor amendment or any of those magical. [00:22:25] Speaker 03: Right. [00:22:28] Speaker 03: And I wouldn't come here this morning, Judge Wallach, and tell you, [00:22:31] Speaker 03: We need to get to a constitutional issue. [00:22:36] Speaker 03: I think more than anything You're right your honor, okay, I was saying I was a constant Well, I wish I'd answered it earlier So in any event [00:22:54] Speaker 03: We respectfully ask for a reband and believe that the A.J. [00:23:01] Speaker 03: with some filings by the parties is in the best position to define the scope of that. [00:23:09] Speaker 03: And again, I have a lot of heartburn over that reprisal finding being used as surrogate for whether or not she actually did it. [00:23:22] Speaker 01: Thank you, Your Honor.