[00:00:46] Speaker 03:
Okay, this is case number 191534, Ramirez against the Department of Homeland Security.

[00:00:57] Speaker 01:
Ms.

[00:00:57] Speaker 01:
Holman.

[00:00:57] Speaker 01:
May I please the court?

[00:01:01] Speaker 01:
This case concerns petitioner Mr. Ramirez's wrongful removal from his job as a Customs and Border Protection Officer on a charge that he was unfit to carry a firearm.

[00:01:11] Speaker 01:
Mr. Ramirez's removal must be vacated for two reasons.

[00:01:16] Speaker 01:
First, the arbitrator determined that the agency's evidence, quote, fell technically short of preponderantly proving that CBPO Ramirez is currently unfit for CBP service, end quote.

[00:01:29] Speaker 01:
This determination conclusively resolved the issue before the arbitrator and it was legal error for the arbitrator to then order Mr. Ramirez to undergo another psychiatric examination and to ultimately sustain the removal.

[00:01:45] Speaker 04:
I guess there's some question about the status of the arbitration when he ordered that other medical evaluation, and that is whether the decision that the arbitrator had made was an initial decision or was it a final decision, correct?

[00:02:06] Speaker 01:
That's correct.

[00:02:07] Speaker 01:
And this court, after Mr. Ramirez petition for review of that interim award, the court found that that award was not final for purposes of taking jurisdiction over the petition.

[00:02:20] Speaker 01:
But the court expressly found in its opinion on the dismissal that

[00:02:27] Speaker 01:
Mr. Ramirez could obtain meaningful relief after a final decision on the claim that the arbitrator's ordering of another psychiatric examination was unlawful.

[00:02:39] Speaker 01:
So at this point Mr. Ramirez has petitioned for review of the final decision and he seeks that meaningful relief.

[00:02:47] Speaker 01:
—that the court expressly left open.

[00:02:50] Speaker 02:
Isn't it fairly clear that what the arbitrator was doing, regardless of what precise language he used when he did it, is that he was saying, at this point, I don't think I have enough to sustain the government's case, but I want more evidence.

[00:03:10] Speaker 02:
And the additional evidence I want is to give another examination

[00:03:16] Speaker 02:
Mr. Ramirez.

[00:03:18] Speaker 02:
And then when that was done, reconvened the proceedings and ultimately ruled his final ruling being in favor of him.

[00:03:27] Speaker 02:
Why isn't that a fair characterization of what the arbitrator was doing as opposed to having conclusively ruled against the government, as your argument suggests?

[00:03:38] Speaker 01:
That may be a fair characterization of what the arbitrator was doing, but Mr. Ramirez's argument is that it was unlawful for the arbitrator to, after having determined that the evidence that the agency presented at a full evidentiary hearing did not satisfy the agency's burden, that at that point it was beyond the arbitrator's authority.

[00:04:03] Speaker 02:
Are we really having a discussion about

[00:04:05] Speaker 02:
the exact words that the arbitrator used, that he didn't say so far, the government's evidence is not strong enough, I want more evidence.

[00:04:14] Speaker 02:
Had he said that, you wouldn't be making this argument, I tell you.

[00:04:18] Speaker 01:
I think there are a couple of points, Your Honor.

[00:04:22] Speaker 01:
First of all, I think the words do matter.

[00:04:25] Speaker 01:
The arbitrator expressly invoked the preponderance of the evidence burden language and found that the evidence that the agency presented at a full evidentiary hearing was not enough to satisfy that burden.

[00:04:39] Speaker 01:
But even if the arbitrator hadn't used that language... He could have said that and then said so far.

[00:04:47] Speaker 02:
Are we really focusing on the absence of the words so far?

[00:04:54] Speaker 02:
Is that your argument that without those words it was over and there was no supplementation of the record that was possible?

[00:05:06] Speaker 02:
Notwithstanding that that's what it was clear the arbitrary wanted to do.

[00:05:11] Speaker 01:
Right.

[00:05:12] Speaker 01:
I'm not sure that the exact words after the arbitrator determined that the agency didn't carry its burden matter.

[00:05:21] Speaker 01:
There are a couple of reasons why I think, you know, even if the arbitrator hadn't used that language, that it would have been improper for the arbitrator to do what he did here.

[00:05:31] Speaker 01:
So of course, I think

[00:05:35] Speaker 01:
We've made it clear that it's the agency's burden to prove its charge by a preponderance of the evidence based on the evidence that it presents at the hearing when it asks the arbitrator to rule on the issues.

[00:05:50] Speaker 01:
And it makes sense that if it's the agency's burden and the agency doesn't carry that burden, the arbitrator should not give the agency a second bite of the apple, a second chance to prove its case, essentially.

[00:06:06] Speaker 01:
And I think point number two is that even if an arbitrator could

[00:06:13] Speaker 01:
order the production of new and existing evidence after the hearing was over.

[00:06:20] Speaker 01:
That's not exactly what happened here.

[00:06:22] Speaker 01:
Here the arbitrator ordered the creation of entirely new evidence that didn't exist.

[00:06:28] Speaker 01:
And indeed he ordered a compulsory psychiatric examination.

[00:06:33] Speaker 01:
I don't think the agency has cited any authority for the arbitrator to order an employee to undergo a psychiatric examination.

[00:06:41] Speaker 01:
That was certainly beyond the agency's authority.

[00:06:44] Speaker 04:
Can you move to your due process argument?

[00:06:47] Speaker 04:
And this is specifically the MMPI examinations.

[00:06:54] Speaker 04:
And I'd like for you to comment on whether Mr. Mears received copies of those, the results of those examinations or not.

[00:07:04] Speaker 04:
And what difference does it make?

[00:07:06] Speaker 04:
Is this the nature of your due process argument?

[00:07:09] Speaker 01:
yes yes judge rena uh mr ramirez did not receive copies of

[00:07:14] Speaker 01:
MMPI results interpreted by Dr. Frederick.

[00:07:19] Speaker 01:
He did not receive the actual tests that he took that were sent to Dr. Frederick for interpretation.

[00:07:27] Speaker 01:
And his lack of access to that evidence is the basis for the due process violation.

[00:07:36] Speaker 01:
The whole removal decision sort of traces back to that evidence.

[00:07:40] Speaker 01:
And here's why.

[00:07:41] Speaker 01:
So the removal decision

[00:07:44] Speaker 01:
which is at page 85 of the appendix, states that the basis for the loss of Mr. Ramirez's ability to carry a weapon are, quote, the medical findings which found that he is restricted from any weapons carrying positions and the restrictions are permanent.

[00:08:00] Speaker 01:
So if you look back to those medical findings that the agency referred to there, it's Dr. Namius' report at pages 77 to 78 of the appendix, where Dr. Namius says, quote, because the employee was not cooperative, I recommend the employee be restricted from any weapons carrying position.

[00:08:18] Speaker 01:
And if you look through Dr. Namius' report, there really isn't any reference to Mr. Ramirez's failure to cooperate except for

[00:08:28] Speaker 01:
The small, short, secondhand summary of what Dr. Frederick found were the results of the MMPI tests.

[00:08:36] Speaker 02:
If Mr. Ramirez had actually... Dr. Mamius testified at the hearing on several occasions that his own conclusion was that Mr. Ramirez was not being forthcoming and cooperative.

[00:08:53] Speaker 02:
Why isn't that enough right there to establish the predicate for his finding quite apart from Dr. Frederick in his report?

[00:09:01] Speaker 01:
Two responses to that, Your Honor.

[00:09:03] Speaker 01:
First of all, an employee is entitled to due process at each stage of the removal proceedings.

[00:09:09] Speaker 01:
And so because Mr. Ramirez was not granted access to the MMPI evidence at the initial stage at the agency's decision to remove him,

[00:09:20] Speaker 01:
that itself renders the removal a nullity and requires Mr. Ramirez to be reinstated.

[00:09:26] Speaker 01:
Second of all, at the arbitration hearing, it is true that Dr. Nami has testified about Mr. Ramirez's failure to cooperate, but I think those

[00:09:37] Speaker 01:
Those findings don't have any bearing on the charge that was before the agency, the charge that the arbitrator was authorized to rule on.

[00:09:46] Speaker 01:
The agency charged Mr. Ramirez with failure to maintain a condition of employment.

[00:09:51] Speaker 01:
fitness to carry a firearm.

[00:09:53] Speaker 01:
And so his cooperation doesn't have a bearing on the charge before him.

[00:10:00] Speaker 02:
Well, it did as far as Dr. Namius was concerned, because he said it was integral to his decision that this was not a risk that he was prepared to endorse, putting a gun back in this man's hand.

[00:10:12] Speaker 02:
in light of his lack of cooperation because that impaired the ability of Dr. Namias to get at the truth of his psychological condition.

[00:10:22] Speaker 02:
So he tied the two directly together.

[00:10:24] Speaker 02:
And let me ask you another question about the whole question of

[00:10:31] Speaker 02:
What happened to the MMPI results?

[00:10:34] Speaker 02:
Those were, as I understand it, not in the possession of the government.

[00:10:39] Speaker 02:
So did you make a request of the arbitrator to compel the production from Dr. Neneas or wherever these records might be found?

[00:10:50] Speaker 01:
Mr. Ramirez requested all the medical records that were... From the government, as I understand it.

[00:10:56] Speaker 01:
From the agency.

[00:10:56] Speaker 01:
From the government, and the union, Mr. Ramirez's union raised the issue with the arbitrator.

[00:11:01] Speaker 02:
Right, but always, and I read the whole transcript, and my impression was that it was always in the context of

[00:11:09] Speaker 02:
The government has to produce this for us, and the government's response each time is, we don't have it.

[00:11:15] Speaker 02:
My question to you is, did you ever say that the arbitrator, all right, this is not presumably in the possession of the government.

[00:11:21] Speaker 02:
Mr. Arbitrator, we want you to direct Dr. Navias to the extent that he possesses these, or Dr. Frederick for that matter, to produce the information that we want.

[00:11:31] Speaker 02:
Did you ever make that request of the arbitrator?

[00:11:34] Speaker 01:
I don't recall that specific request.

[00:11:37] Speaker 01:
Of course, there was a lengthy discussion about how Mr. Ramirez's due process rights were impaired based on his lack of access to that evidence at the removal decision from the start.

[00:11:52] Speaker 01:
And I also don't believe that the agency has raised the argument that Mr. Ramirez somehow failed in his duty to request this evidence, except that he did not go directly to Dr. Namias or Dr. Frederick for it.

[00:12:09] Speaker 02:
I'd also add that... The government's answer is that we didn't have it, therefore we had no obligation to produce it.

[00:12:15] Speaker 02:
So that presumably puts the ball back in Mr. Ramirez's court to produce the evidence and to do so by requesting that the arbitrator assist if the assistance were necessary.

[00:12:29] Speaker 01:
Respectfully, Your Honor, I'm not sure that the

[00:12:33] Speaker 01:
that there's case law out there to support that it's, if the government doesn't have it, that that puts the burden back in Mr. Ramirez's court.

[00:12:43] Speaker 01:
In the cases that we cite, Banks versus FAA and Houston Federation of Teachers, the government agencies there also didn't have possession of the critical evidence there, and the courts found that the proper remedy was not to force

[00:13:00] Speaker 01:
The government based its removal decision on those reports, correct?

[00:13:10] Speaker 04:
I mean, ultimately the removal decision was based on those reports.

[00:13:21] Speaker 01:
That's correct, Your Honor, but the reports themselves were based almost entirely on that MMPI evidence.

[00:13:30] Speaker 01:
And it's also the government's burden.

[00:13:34] Speaker 04:
That's what I'm referring to.

[00:13:36] Speaker 04:
The decision appears to me to be, and I'm talking about the removal decision, it's ultimately just entirely based on those MMPI reports.

[00:13:47] Speaker 01:
That's correct, yes.

[00:13:48] Speaker 01:
based entirely on the conclusion that Mr. Ramirez was unfit because he failed to cooperate, which then traces directly back to the MMPI evidence.

[00:13:59] Speaker 01:
I see that I'm into my rebuttal time, so unless there are pressing questions at the moment, I will reserve my time.

[00:14:10] Speaker 03:
Okay, let's hear from the government.

[00:14:14] Speaker 03:
Ms.

[00:14:15] Speaker 03:
Murdoch-Park.

[00:14:15] Speaker 00:
The agency proved by preponderant evidence that Mr. Ramirez failed to meet a condition of his employment, which was to carry a government-issued firearm.

[00:14:26] Speaker 00:
And to take a step back and to answer directly first, Judge Raina, your most recent question, with respect to what the agency relied upon.

[00:14:36] Speaker 00:
The agency relied upon in making its decision the report of Dr. Namias.

[00:14:41] Speaker 00:
And the report of Dr. Namias was not based solely on the MMPI-2 interpretation from Dr. Frederick.

[00:14:47] Speaker 00:
But as Dr. Namias testified was based on a multiple hours long meeting, interview with Mr. Ramirez as well as his attempt, Dr. Namias' attempt to contact Mrs. Ramirez and speak to her about what happened.

[00:15:02] Speaker 00:
After the interview, speaking with Mrs. Ramirez and reviewing the reports, Dr. Namias testified and wrote clearly in his report that not only was Mr. Ramirez not truthful in his responses, he pointed to, for example, one occasion in which Mr. Ramirez said that he was a perfect performer at work, but in fact then admitted on further questioning that he had had other problems at work before,

[00:15:28] Speaker 00:
Dr. Namias pointed to untruthfulness, unwilling to cooperate, which was based upon his personal observations as well as Dr. Frederick's observations.

[00:15:38] Speaker 00:
The removal decision that Mr. Ramirez could not carry a weapon began after he was accused of placing his government-issued firearm to his wife's head.

[00:15:49] Speaker 00:
The agency then ordered these reports.

[00:15:53] Speaker 00:
Now, of course, the agency went through the proper procedures, got the initial medical exam.

[00:15:59] Speaker 00:
The reports from the forensic psychiatrists and the interviews for the fitness for duty test, Dr. Namies could not certify that Mr. Ramirez was able to carry a government-issued firearm, and therefore he could not perform the essential functions of his duty.

[00:16:19] Speaker 00:
то арбитратор си си си си си си си си

[00:16:45] Speaker 00:
any final findings in his interim report, he instead stated that he relied on the more convincing evidence, the clearly and convincingly medical evidence from the government.

[00:17:03] Speaker 00:
He found that to be not, quote, technically

[00:17:09] Speaker 00:
meeting the preponderance of the evidence standard, but he directly tied this issue to Mr. Ramirez's choice not to respond to the questions and to the fact that Mr. Ramirez could not be cleared to carry a gun.

[00:17:27] Speaker 02:
Now, to go to some of the... You characterized that as giving Mr. Ramirez a second bite of the apple.

[00:17:34] Speaker 02:
He actually was giving the government a second bite of the apple, wasn't he?

[00:17:38] Speaker 02:
Because at that point, what he was saying was, if I had to stop now, government, you lose.

[00:17:44] Speaker 02:
That's the way I interpret what he was saying.

[00:17:47] Speaker 02:
Is that not fair?

[00:17:48] Speaker 02:
I don't think the government has proved its case at this point.

[00:17:52] Speaker 00:
Your Honor, if reading the totality of the interim report, there is no evidence that Mr. Ramirez could carry a firearm.

[00:18:01] Speaker 00:
There is no evidence that the arbitrator found he could actually conduct the duty that or conduct the essential functions of his job.

[00:18:11] Speaker 02:
Well, there are two interwoven features here.

[00:18:16] Speaker 02:
the ability to carry the firearm, the two, as the government's proved its case for dismissal.

[00:18:23] Speaker 02:
The second depends upon the first, but when he says that the government hasn't proved the second, in effect, he's saying the government hasn't proved what it needs to prove, which is he's not qualified to carry a firearm.

[00:18:35] Speaker 02:
That was certainly the way I interpreted the order of the arbitrator in the first instance.

[00:18:43] Speaker 00:
Reading the arbitrator's decision, it again traces to Mr. Ramirez's unwillingness to finish or conduct these fitness for duty tasks.

[00:18:56] Speaker 00:
And the arbitrator talks about Mr. Ramirez's deliberate avoidance of transparency and no reasonable effort to cooperate, his deliberately recalcitrant behavior, and that

[00:19:07] Speaker 00:
He did not want to reward this type of behavior.

[00:19:10] Speaker 00:
The arbitrator did not want to reward.

[00:19:13] Speaker 00:
And again, the arbitrator, he considered the evidence of... But he did answer all the questions, correct?

[00:19:18] Speaker 04:
All ago you said he did not answer all the questions.

[00:19:22] Speaker 00:
I don't see that.

[00:19:26] Speaker 00:
Yes, my apologies.

[00:19:27] Speaker 00:
He did not answer the questions truthfully.

[00:19:29] Speaker 00:
To give you an example... But he did answer the questions.

[00:19:32] Speaker 00:
My understanding is he answered all of the questions and these were on a sort of like a Scantron form, say 500 questions, like taking the SATs or something.

[00:19:43] Speaker 00:
To give an example, Dr. Yee characterized

[00:19:47] Speaker 00:
or explain some of these answers.

[00:19:49] Speaker 00:
And to take a step back, the MMPI-2 is a standardized test, as Dr. Nami has testified, that it can only be interpreted in one way.

[00:19:58] Speaker 00:
The information is put in and output comes out, and then Dr. Frederick presented his summary of that output.

[00:20:06] Speaker 00:
Dr. Yee explained in her report that Mr. Ramirez characterized himself as a person of exceptional virtue.

[00:20:13] Speaker 00:
For example, in response to the MMPI-2 test questions, he reported that he always tells the truth, never swears, never gossips, is never vain, never procrastinates, likes everyone he meets, never acts rashly, and has manners as good at home as his manners in public.

[00:20:32] Speaker 00:
And these are the types of questions that could not be interpreted because they're simply not truthful and that's backed up by everything that... The fact that they cannot be interpreted and that they're not truthful, that result was part of the decision to remove.

[00:20:52] Speaker 00:
That result was incorporated into Dr. Namies' report, which formed the basis of the agency's removal decision.

[00:20:59] Speaker 00:
Correct.

[00:20:59] Speaker 00:
Yes.

[00:21:00] Speaker 00:
And the agency based its removal decision on Dr. Namies' report, on the fact that Dr. Namies, a forensic psychiatrist, stated that Mr. Ramirez was permanently prohibited from carrying a firearm until he could show otherwise.

[00:21:17] Speaker 04:
Why should he not have had the opportunity to challenge this finding of truthfulness?

[00:21:23] Speaker 00:
Well, respectfully, Your Honor, he did at the arbitration hearing.

[00:21:26] Speaker 04:
Was he given a copy of the reports and the results?

[00:21:29] Speaker 00:
He was given a copy of Dr. Namias' report and Dr. Scott's report, the first report, through his... I'm talking about the test, the MMIP test.

[00:21:38] Speaker 00:
He was not given a copy of that, Your Honor, because the agency never had it.

[00:21:41] Speaker 00:
And as Judge Bryson, you stated... The agency relied on it.

[00:21:45] Speaker 00:
The agency did not rely on the MMPI-2 tests.

[00:21:49] Speaker 02:
Др.

[00:21:49] Speaker 02:
Намиес, я считаю, верил в обоих тестах, в которых он сказал, что он взял ответы, и доктора Фредрикса, вероятно?

[00:22:01] Speaker 00:
Вероника, я не помню, если доктор Намиес взял результаты теста, но он вероятно взял сумми доктора Фредрикса результатов.

[00:22:08] Speaker 03:
Да, но это... вы можете видеть, что это неправильно.

[00:22:15] Speaker 03:
There was information, there was medical information that was withheld and we're trying to understand the justification for why that wasn't provided as a threshold to the entire question of the process that was followed.

[00:22:33] Speaker 00:
Well, First Your Honor,

[00:22:35] Speaker 00:
The information was never in the agency's possession.

[00:22:38] Speaker 00:
It never had the MMPI-2 reports.

[00:22:41] Speaker 00:
It never had it and never relied on it.

[00:22:43] Speaker 03:
The information that... They conducted the test.

[00:22:46] Speaker 03:
You say they never had it.

[00:22:51] Speaker 00:
I do not recall if Dr. Namias had the 500 questions and answers or if he only had the four-page summary that was received from Dr. Frederick interpreting the results.

[00:23:07] Speaker 00:
Dr. Namias testified as to how these results are interpreted and stated that they are always interpreted in the same manner, that this is

[00:23:19] Speaker 00:
It's always scored the same way.

[00:23:22] Speaker 00:
And so Dr. Namias incorporated that summary into his report.

[00:23:27] Speaker 00:
Now, the information that was available to Mr. Ramirez was the information that was available to the agency for review, which was

[00:23:35] Speaker 00:
the copies of the Forensic Psychiatrist Report finding that Mr. Ramirez was not cleared to carry a gun.

[00:23:42] Speaker 02:
Dr. Namias, I think is not an agency employee.

[00:23:46] Speaker 02:
No, Your Honor.

[00:23:48] Speaker 02:
This was per contract with Dr. Namias to conduct this particular investigation.

[00:23:51] Speaker 02:
Yes, Your Honor.

[00:23:54] Speaker 02:
And so the agency, I suppose, could have asked Dr. Namias for the MMPI results.

[00:24:01] Speaker 02:
I think there's somewhere in the record suggested that Dr. Namias actually

[00:24:06] Speaker 02:
has a copy of the results, but the agency did not make that request, right?

[00:24:12] Speaker 00:
The agency did not make the request, nor did the union make the request of Dr. Namias or of Dr. Frederick himself, nor request that the arbitrator do so.

[00:24:24] Speaker 02:
It would have certainly made this case a lot easier if you had just said, okay, let's see if Dr. Namias can produce the materials, and if he did, then the issue is taken care of.

[00:24:39] Speaker 00:
To that point, Your Honor, one of the points that Dr. Namias testified to at the hearing was that

[00:24:47] Speaker 00:
These results are not given to the agency regularly because they need to be interpreted by somebody who is qualified to interpret that information.

[00:24:57] Speaker 00:
So providing a bunch of raw data would simply be unhelpful to the agency.

[00:25:04] Speaker 02:
But the agency could do exactly what it did with some of the medical information, which is say, please designate it.

[00:25:11] Speaker 02:
Mr. Ramirez, please designate a psychiatrist who will examine these and will produce them to the psychiatrist.

[00:25:17] Speaker 00:
Because the agency did not have it in its control, then... They could say to Dr. Namias, they have a greater relationship with Dr. Namias than Mr. Ramirez does, right?

[00:25:30] Speaker 02:
Because they contracted for him.

[00:25:33] Speaker 02:
Yes.

[00:25:34] Speaker 02:
So at least it would have been something that would have been possible for the agency to go to Dr. Namias and say,

[00:25:40] Speaker 02:
Are you willing to produce these?

[00:25:42] Speaker 02:
We would like you to do that.

[00:25:43] Speaker 00:
It could have been possible, Your Honor, but the fact that the Union did not have the arbitrator compel this to occur, the agency repeatedly stated, we do not have this information.

[00:25:53] Speaker 00:
We cannot produce it to you.

[00:25:55] Speaker 00:
And there was no further action from the Union on that point.

[00:25:58] Speaker 04:
Now you're taking a different position.

[00:26:00] Speaker 04:
Now you're saying that.

[00:26:02] Speaker 04:
Ms.

[00:26:06] Speaker 04:
Ramirez did not seek to compel production of the test.

[00:26:08] Speaker 04:
How does your position differ from the case in Houston Federation of Teachers?

[00:26:17] Speaker 00:
Houston Federation of Teachers.

[00:26:17] Speaker 00:
That was the drug test case.

[00:26:20] Speaker 00:
Thank you, Your Honor.

[00:26:21] Speaker 00:
Well, simply, in the drug test case, the urinalysis was the only evidence of any wrongdoing.

[00:26:26] Speaker 00:
No, that was banks.

[00:26:28] Speaker 04:
That was banks?

[00:26:29] Speaker 04:
The urinalysis banks.

[00:26:32] Speaker 04:
That's a flight controller's case.

[00:26:35] Speaker 02:
Oh yeah, that's right.

[00:26:36] Speaker 02:
Houston Federation is not drugs, I'm sorry.

[00:26:39] Speaker 00:
You're right.

[00:26:41] Speaker 04:
And I will... Well, we can review that at some other time, but I think that case is pretty close on point here.

[00:26:51] Speaker 00:
If I may pull that up in our briefs, Your Honor, I believe first that is not binding on this court.

[00:26:57] Speaker 00:
But in Houston Federation, I believe the plaintiffs were unable to obtain the test results, if not the urinalysis results, but the test results that were the only basis for their removal proceedings.

[00:27:11] Speaker 00:
And that certainly did not happen here.

[00:27:13] Speaker 00:
Again, Dr. Namias testified.

[00:27:16] Speaker 00:
Mr. Ramirez had a copy of Dr. Scott's report and Dr. Namias' report.

[00:27:20] Speaker 00:
He had a chance to challenge on testimony Dr. Namias, and Dr. Namias made numerous findings unrelated to the MMPI-2 results based solely on his observation of Mr. Ramirez as well as his attempt to obtain collateral information from Mrs. Ramirez.

[00:27:38] Speaker 00:
These things all together formed the basis of the agency's decision to remove.

[00:27:43] Speaker 00:
And in Brooks, the agency is only required to present the information that it relied upon.

[00:27:52] Speaker 00:
The agency never relied on the MMPIG reports.

[00:27:57] Speaker 03:
How can you challenge your report if you don't have access to the data the report is based on?

[00:28:05] Speaker 00:
Well, Your Honor, Mr. Ramirez was able to challenge Dr. Namias' use of the report in his determination that he could not carry a firearm.

[00:28:15] Speaker 00:
And so he is able to, assuming, let's assume that even the report is entirely inaccurate, that Dr. Frederick, in his blind

[00:28:28] Speaker 00:
interpretation of this test interpreted it incorrectly.

[00:28:32] Speaker 00:
Dr. Namiya still had such sufficient findings in his report based on his own personal observations of Mr. Ramirez and his attempts to contact Mrs. Ramirez that he's still concluded that Mr. Ramirez was not able to carry a gun.

[00:28:48] Speaker 00:
He could not perform an essential duty of his position.

[00:28:52] Speaker 03:
Based on what we're told could be a flawed report.

[00:28:57] Speaker 03:
So that they, how can you accept the conclusion?

[00:29:02] Speaker 00:
Well, Mr. Ramirez was able to challenge that conclusion through Dr. Namias, but even assuming that the MMPI-2 report is completely flawed, there's still the independent findings of Dr. Namias unrelated to the report and the testimony by Dr. Namias as to the basis for it.

[00:29:19] Speaker 04:
That's a different argument.

[00:29:21] Speaker 04:
Now you're arguing the sufficiency of the evidence that goes to the report.

[00:29:25] Speaker 04:
And that's not what we're addressing here.

[00:29:30] Speaker 04:
We're addressing evidence that was used, was relied on, that wasn't given to Mr. Romero so that he could effectively challenge the decision to remove him.

[00:29:38] Speaker 00:
But respectfully, Your Honor, the MMPI-2 reports were never utilized by the agency.

[00:29:43] Speaker 00:
They were never reviewed by the agency.

[00:29:46] Speaker 00:
They were never seen by the agency.

[00:29:48] Speaker 00:
What the agency relied upon was Dr. Namias's report, which stated, Mr. Ramirez is permanently barred.

[00:29:55] Speaker 04:
This is a report that was based, I think, to a large extent, and you argued to a tiny extent, I guess, but it was based on those reports, PI reports.

[00:30:09] Speaker 00:
Right?

[00:30:13] Speaker 00:
But that's not the question here.

[00:30:18] Speaker 04:
The question is whether Mr. Ramirez should have had access to those reports in order to challenge that part of the report itself.

[00:30:35] Speaker 04:
And he didn't get it.

[00:30:37] Speaker 00:
Yes, Your Honor, and the agency did not have the duty to provide information it did not have to Mr. Ramirez, which it did not rely upon to make its determination.

[00:30:46] Speaker 04:
What's your legal authority for that assertion?

[00:30:49] Speaker 00:
Loudermill, Your Honor, certainly does not state that the agency must provide every iota of information, particularly when it's not in front of the agency.

[00:31:02] Speaker 00:
And respectfully, Your Honor, there was no due process violation here.

[00:31:07] Speaker 00:
Just one additional point, one of the, and I realize I'm over my time, but if I may, the union has argued that the arbitrator had no authority to order Dr. Yee's report.

[00:31:25] Speaker 00:
Dr. Yee's report is entirely consistent with the other two reports, makes the same findings, and so to the extent that the arbitrator exceeded his authority, it was harmless error.

[00:31:36] Speaker 04:
So, what in addition to the MMPI reports did Dr. Mahima show these caps in order to show that Mr. Ramirez was defensive or combative or truthful?

[00:31:54] Speaker 00:
Particularly, Your Honor, if you turn to appendix page 76,

[00:32:01] Speaker 00:
And that is in the midst of Dr. Ramirez's report.

[00:32:06] Speaker 00:
There are several issues, like I guess first starting with appendix page 75.

[00:32:10] Speaker 00:
Dr. Namias notes that Mr. Ramirez reported he had an outstanding track record with numerous awards, but on closer questioning he admitted to several past problems at work.

[00:32:23] Speaker 00:
This indicates that Mr. Ramirez is not entirely truthful with Dr. Namias upon questioning.

[00:32:29] Speaker 00:
On appendix page 76, under mental status evaluation and mood,

[00:32:34] Speaker 00:
Mr. Ramirez states he doesn't describe any specific angry feelings towards his wife for allegedly falsely accusing him of a felony.

[00:32:42] Speaker 00:
According to Dr. Namias, on questioning during the hearing, he found that highly suspect, especially if this was actually an allegedly false report that his wife was making against him.

[00:32:57] Speaker 00:
Dr. Namias also found that he found very troubling the collateral phone contact with Mrs. Ramirez and the fact that she would not discuss the incident.

[00:33:08] Speaker 00:
He explained that as well, let's see here,

[00:33:17] Speaker 00:
He stated that the employee's lack of full cooperation and due to his wife's decision not to discuss the marital problems on Appendix page 77.

[00:33:26] Speaker 00:
And Dr. Namias discussed his findings in full.

[00:33:29] Speaker 00:
I believe it's from Appendix pages approximately 103 to 109 where he discusses some of his findings specifically with respect to Mr. Ramirez's defensiveness and other answers that he gave during the examination that caused him concern.

[00:33:47] Speaker 03:
Okay, any more questions?

[00:33:48] Speaker 03:
Thank you.

[00:33:49] Speaker 03:
Thank you, Ms.

[00:33:50] Speaker 03:
Murdoch-Park.

[00:33:57] Speaker 03:
Ms.

[00:33:58] Speaker ?:
Holm.

[00:33:58] Speaker 01:
Thank you.

[00:34:00] Speaker 01:
There was some discussion of Dr. Namias' testimony, sort of elaborating upon his conclusions and his report.

[00:34:09] Speaker 01:
I'll note that Mr. Ramirez is entitled to due process at each stage of the proceedings, and so since Mr. Ramirez did not have access to the MMPI reports at the initial removal stage,

[00:34:22] Speaker 01:
He was denied due process at that point.

[00:34:25] Speaker 02:
Did you make that argument in your briefs?

[00:34:27] Speaker 02:
I thought your briefs were focused on the failure to produce the amendment, the results, and Dr. Frederick's analysis at the hearing or before the hearing, but not before the agency removal.

[00:34:40] Speaker 02:
That would strike me as would have been peculiar at the hearing, particularly at the removal stage, particularly if no request was made at that point.

[00:34:50] Speaker 01:
The briefs, I believe, address both the removal decision, that it renders the initial removal decision a nullity, and it also detracts from the arbitrator's eventual decision.

[00:35:03] Speaker 02:
Was there a request at the initial removal stage for these materials?

[00:35:07] Speaker 01:
Mr. Ramirez requested all of the medical records created after each psychological examination.

[00:35:14] Speaker 02:
And they produced everything in their possession.

[00:35:16] Speaker 01:
That's correct.

[00:35:17] Speaker 02:
But they did not produce something that wasn't in their possession at that point.

[00:35:21] Speaker 01:
That's correct, Your Honor.

[00:35:24] Speaker 01:
Just a couple more points.

[00:35:28] Speaker 01:
So there was some discussion about other evidence in the reports that supported the proposition that Mr. Ramirez was not cooperative.

[00:35:39] Speaker 01:
If you look at page 116, or I'm sorry, 105 of the appendix, and this is even in Dr. Namius' testimony elaborating upon

[00:35:51] Speaker 01:
conclusion.

[00:35:53] Speaker 01:
He says that the conclusion that he was not cooperative was based primarily on the MMPI test.

[00:36:06] Speaker 01:
And in Houston Federation of Teachers, the school district argued that this performance score to which the teachers do not have access to the underlying data or the algorithm, that the performance score was just one factor among many that could

[00:36:21] Speaker 01:
support a removal decision of a teacher and the court found that because of its significance it might not be the only factor but it was a very significant factor that violated the teachers due process rights to remove them even if that was one significant factor.

[00:36:43] Speaker 02:
Let me ask you a question.

[00:36:45] Speaker 02:
If you should be right about your due process argument, but set aside the argument that the whole proceeding should have been terminated as of the time that the arbitrator said, government, you haven't proved your case yet.

[00:37:03] Speaker 02:
What would be the result?

[00:37:05] Speaker 02:
Would it be to remand for the arbitrator

[00:37:11] Speaker 02:
at least make an effort to obtain the MMPI and Dr. Frederick's report for supplementation of the record?

[00:37:19] Speaker 01:
I think the remedy, Your Honor, would be to reinstate Mr. Ramirez and require an entirely new constitutionally adequate removal procedure from the start.

[00:37:31] Speaker 01:
If the agency still wishes to remove Mr. Ramirez, they can

[00:37:36] Speaker 01:
the process all over again and either not use the MMPI evidence or if an MMPI test is administered and it ends up being the primary basis on which the removal decision is made that that evidence needs to be provided.

[00:37:54] Speaker 04:
Is that what you're asking this court to do?

[00:37:57] Speaker 04:
What's the prayer of relief here on your part?

[00:38:00] Speaker 01:
The relief is to reinstate Mr. Ramirez with back pay and benefits under the Back Pay Act.

[00:38:08] Speaker 02:
not to have this evidence made available to him for further proceedings.

[00:38:17] Speaker 01:
I think that would certainly be better, but I think this court's cases in Stone versus FDIC, for example, say that when a due process violation occurs, the proper remedy is the employee actually, in effect, should stay on the rolls until he is afforded a constitutionally adequate removal procedure.

[00:38:42] Speaker 04:
So we would vacate the removal decision.

[00:38:43] Speaker 01:
Yes, Your Honor.

[00:38:46] Speaker 03:
Thank you.

[00:38:48] Speaker 03:
Anything else?

[00:38:48] Speaker 03:
Anything else?

[00:38:49] Speaker 03:
Thank you.

[00:38:49] Speaker 03:
Thank you both.

[00:38:50] Speaker 03:
The case is taken under submission.