[00:00:00] Speaker 03:
Before we begin, note that Judge O'Malley is a member of this panel.

[00:00:05] Speaker 03:
She was not able to be here today.

[00:00:08] Speaker 03:
She is listening to the oral argument.

[00:00:10] Speaker 03:
She does not plan to ask questions, but she's a full participant in the panel and the deliberations.

[00:00:20] Speaker 03:
So with that, let's begin with the first case, number 191206.

[00:00:27] Speaker 03:
Soros versus Department of Justice.

[00:00:29] Speaker 03:
Mr. Burr.

[00:00:30] Speaker 02:
Yes, thank you, Your Honor.

[00:00:32] Speaker 02:
May it please the court.

[00:00:34] Speaker 02:
There's a lot in this case that is fundamentally wrong in the way it was allowed to be prosecuted and the way we were surprised.

[00:00:44] Speaker 02:
But I think it's important to understand that at its core, it's a USERRA case.

[00:00:48] Speaker 02:
And the central issue was whether or not the Drug Enforcement Administration

[00:00:55] Speaker 02:
discredited or failed to take into account in calculating my client's pay grade.

[00:01:00] Speaker 02:
is military service.

[00:01:01] Speaker 02:
And that fact is undisputed, because Ms.

[00:01:04] Speaker 02:
Tanya Bingham-Schreider testified that she did not consider my client's service in law enforcement in Haiti.

[00:01:11] Speaker 02:
While it was, quote, law enforcement, she said it didn't protect federal law.

[00:01:16] Speaker 03:
One of your arguments here is that the AJ made a mistake in interpreting the testimony as to whether the qualifications

[00:01:29] Speaker 03:
the position in 1998 were to be determined as of the date of the vacancy announcement or the date of the hiring correct correct but and What what is it that happens?

[00:01:42] Speaker 03:
between, in terms of his accumulating additional experience, what happened between the date of the vacancy announcement and the hiring that was pertinent?

[00:01:54] Speaker 02:
He continued to serve as a police officer in California, and then if you credit... Police officer, probation officer?

[00:02:00] Speaker 02:
Yes, but under California law, as we explained in the case in Chief, he's a peace officer who's assigned law enforcement-type qualifications and duties.

[00:02:08] Speaker 02:
So the issue for the judge was not, the judge did not reach... I'm just trying to understand what happened for a second.

[00:02:16] Speaker 03:
So you say he continued to serve as a probation officer?

[00:02:20] Speaker 03:
Correct.

[00:02:21] Speaker 03:
And how long did he serve as a probation officer before the vacancy announcement?

[00:02:26] Speaker 02:
His testimony was that at the time of the vacancy announcement, he had a total amount of time of a year and a half of qualifying law enforcement experience.

[00:02:34] Speaker 03:
Okay, and he accumulated, according to you, after the vacancy announcement and before the hiring, what?

[00:02:40] Speaker 02:
Correct.

[00:02:40] Speaker 02:
He accumulated, he had seven months in Haiti, and the remainder of the time of, I think it was 11 months, was in California, in the system in California.

[00:02:49] Speaker 04:
And he only needed one year of time, right?

[00:02:51] Speaker 02:
Right.

[00:02:52] Speaker 04:
And that could have been satisfied, in your view, by

[00:02:55] Speaker 04:
the probation officer experience alone, right?

[00:02:59] Speaker 04:
So you consider that probation officer experience relevant to whether he would have been qualified for that higher pay grade, right?

[00:03:07] Speaker 04:
Correct.

[00:03:08] Speaker 02:
And the administrative logics didn't really reach that issue.

[00:03:10] Speaker 02:
He suggested that the military time might actually qualify.

[00:03:14] Speaker 02:
He came down to his decision solely based on his, on Tanya Bingham-Schwader's

[00:03:18] Speaker 02:
11th hour and a surprising testimony that she had calculated that the decision on how to set up a grade for DEA applicant occurred at the time of application, not at the time the vacancy announcement closed.

[00:03:33] Speaker 04:
She did testify to that fact, right?

[00:03:35] Speaker 02:
Well, she contradicted herself.

[00:03:36] Speaker 02:
She did.

[00:03:37] Speaker 02:
She went back and forth.

[00:03:38] Speaker 02:
I think one of the things that should guide the court, and I hate to do this, but... I still need to understand what happened here.

[00:03:45] Speaker 03:
Are you claiming that the Haiti experience also took place in that interim period or not?

[00:03:50] Speaker 02:
The Haiti experience went combined with the police officer experience.

[00:03:55] Speaker 02:
No, but did the Haiti experience... I think that occurred before the application.

[00:03:59] Speaker 03:
Okay, so the only relevant experience that you claim to be necessary to consider was the probation officer experience between the vacancy announcement and the hiring.

[00:04:14] Speaker 02:
That is correct, but one of the reasons he doesn't make the year according to the agency's original position was that that military time didn't count.

[00:04:26] Speaker 02:
Military time being the Haiti.

[00:04:28] Speaker 02:
Haiti experience.

[00:04:29] Speaker 02:
That that didn't count.

[00:04:31] Speaker 04:
Where is that in the record?

[00:04:32] Speaker 02:
That is in the examination of both the examination and the cross-examination, if I can find the actual page number.

[00:04:39] Speaker 04:
You're saying that part of the agency's decision was to discredit the ADA experience?

[00:04:46] Speaker 02:
Well, she said as much, because in the transcript itself, both of us... Not in the decision?

[00:04:53] Speaker 02:
See, the distinction is in the decision.

[00:04:56] Speaker 02:
No, what did she say in the decision?

[00:04:58] Speaker 03:
What did the AJ say in the decision about the Haiti experience?

[00:05:01] Speaker 02:
He said that it might qualify, but that it doesn't matter because of the time of his hiring.

[00:05:09] Speaker 02:
He didn't have, that the time he was hired, the time was a year.

[00:05:14] Speaker 04:
You're saying at the time of the hiring, he didn't yet have a year's worth of experience.

[00:05:18] Speaker 02:
At the time of his application, he did not.

[00:05:21] Speaker 02:
At the time of the hiring.

[00:05:22] Speaker 02:
Right.

[00:05:22] Speaker 02:
He had about 10 to 11 months at the time the application was submitted.

[00:05:29] Speaker 03:
And the central issue for the administration... And so the idea is that the probation experience that occurred between the time of the vacancy announcement and the time of the hiring would have brought him up to one year.

[00:05:39] Speaker 02:
If they had included them both.

[00:05:41] Speaker 02:
Yes.

[00:05:43] Speaker 04:
That's 1.5 years worth of time, and all he needed was for a probation officer.

[00:05:50] Speaker 04:
And he only needed one year worth of time in order to get the GS9.

[00:05:57] Speaker 04:
Why are you relying on the Haiti experience at all?

[00:06:01] Speaker 02:
Because the original position from the agency that they argued in the hearing itself when they examined Miss Tanya Bingham Schweider was that the military time in Haiti didn't qualify because as Tanya Bingham Schweider said, that's not enforcing federal law.

[00:06:18] Speaker 02:
So that came into the testimony.

[00:06:20] Speaker 02:
So on the merits, we believe that that decision was wrong because

[00:06:26] Speaker 02:
If you discount the military time, then you don't get over the year.

[00:06:30] Speaker 02:
And the USERRA violation would be made out even if it was a simple question.

[00:06:37] Speaker 02:
Did you qualify?

[00:06:38] Speaker 03:
You're saying that if you count the Haiti experience he had a year even before the vacancy announcement?

[00:06:43] Speaker 02:
No.

[00:06:44] Speaker 02:
He did not.

[00:06:44] Speaker 02:
No.

[00:06:45] Speaker 02:
No.

[00:06:47] Speaker 02:
I'm sorry.

[00:06:47] Speaker 02:
Yes, before the vacancy announcement, but not at the time of the application.

[00:06:52] Speaker 02:
And I think the critical thing that gets a little understand.

[00:06:55] Speaker 02:
Well, let me see if I can explain, Judge.

[00:06:58] Speaker 02:
The issue in the case is twofold.

[00:07:02] Speaker 02:
The issue is, did the agency discount military service in terms of assessing time?

[00:07:11] Speaker 02:
And the answer to that is yes.

[00:07:12] Speaker 02:
Ms.

[00:07:12] Speaker 02:
Tanya Bingham's wife said that didn't qualify.

[00:07:15] Speaker 02:
The Haiti experience.

[00:07:16] Speaker 02:
The Haiti experience.

[00:07:17] Speaker 02:
The second issue is, and the critical issue... What difference would that have made?

[00:07:20] Speaker 02:
Because if they had included the Haiti time and he had been... When he went in to Joe Love and said, you've got my grade wrong because you did not include my military time.

[00:07:32] Speaker 02:
And on the... How do we get a year before the vacancy announcement by counting the Haiti experience?

[00:07:38] Speaker 02:
Because you combine it with the time as a peace officer.

[00:07:41] Speaker 02:
And that amounts to a year?

[00:07:42] Speaker 02:
Over a year.

[00:07:43] Speaker 04:
On the SF-171 application, right?

[00:07:49] Speaker 04:
As of the time that he filed that, he didn't yet have a year's worth experience when you combine the Haiti experience with the parole officer experience, right?

[00:08:00] Speaker 02:
Correct.

[00:08:00] Speaker 04:
He had about 10 months.

[00:08:01] Speaker 04:
And didn't Miss Bingham testify that you look at the time that the SF-171 is submitted for determining the grade?

[00:08:10] Speaker 02:
Correct.

[00:08:11] Speaker 02:
But that's where the second error comes in.

[00:08:12] Speaker 02:
That's why I'm trying to link them both.

[00:08:14] Speaker 02:
The second error is there is no support for that.

[00:08:17] Speaker 02:
There's no written policy.

[00:08:19] Speaker 03:
I don't understand the first error.

[00:08:20] Speaker 03:
I'm still confused.

[00:08:22] Speaker 03:
Let's assume that we're measuring experience at the time of the vacancy announcement.

[00:08:27] Speaker 03:
Correct.

[00:08:28] Speaker 03:
Do you contend that he satisfied the one year at that point?

[00:08:32] Speaker 02:
Yes.

[00:08:33] Speaker 02:
And how do you get that?

[00:08:34] Speaker 02:
You combine the time of law enforcement service in Haiti with the time as a California police officer.

[00:08:40] Speaker 02:
And that amounts to more than a year?

[00:08:42] Speaker 03:
More than a year, correct.

[00:08:43] Speaker 03:
Okay.

[00:08:43] Speaker 03:
So you're contending that they heard by failing to consider the Haiti experience as qualifying.

[00:08:50] Speaker 03:
Correct.

[00:08:51] Speaker 03:
And you're contending that if you properly consider in your view the time between the vacancy announcement and the hiring,

[00:09:02] Speaker 03:
and even putting to one side the Haiti experience, he still had one year as a probation.

[00:09:07] Speaker 03:
Correct.

[00:09:08] Speaker 03:
That's correct.

[00:09:09] Speaker 03:
So what did the AJ say in the decision about the Haiti experience?

[00:09:14] Speaker 02:
He did not reach the issue.

[00:09:16] Speaker 02:
He simply said that

[00:09:17] Speaker 02:
The issue, the sole issue is did he have a year at the time he applied and the answer is no.

[00:09:22] Speaker 02:
He did not get to the calculations that we asked him.

[00:09:25] Speaker 03:
I don't understand if in fact the Haiti experience and the probation officer amounted to a year, why didn't the A.J.

[00:09:33] Speaker 03:
have to reach that question?

[00:09:35] Speaker 02:
I don't know.

[00:09:36] Speaker 02:
He just chose not to address it.

[00:09:38] Speaker 02:
That's the problem with his opinion is he came into an opinion and he said what I look at is I look at the testimony of Tonya Bingham-Schweider who says that

[00:09:48] Speaker 02:
You take the application.

[00:09:49] Speaker 02:
At the time of the application, you calculate the grade.

[00:09:52] Speaker 02:
The grade was calculated at GS7 according to the SF-171.

[00:09:56] Speaker 02:
The reason they did that is because they don't include additional experience.

[00:10:00] Speaker 02:
And by the way, I discounted the military experience too.

[00:10:04] Speaker 02:
That's what she says.

[00:10:05] Speaker 02:
That's what she testified to.

[00:10:06] Speaker 02:
The judge only reached the issue of the issue of, at the time of the application, which was based on an erroneous set of assumptions, because Tanya Bingham swore to contradict herself.

[00:10:17] Speaker 03:
But that may be.

[00:10:18] Speaker 03:
But you're saying that even at the time of the application, the one year was satisfied.

[00:10:24] Speaker 02:
At the time of the vacancy was closed.

[00:10:27] Speaker 02:
He had the year and a half.

[00:10:28] Speaker 04:
OK, wait.

[00:10:30] Speaker 04:
Let's just be clear, because I think we're talking about three different things.

[00:10:34] Speaker 04:
There's the time of the vacancy announcement.

[00:10:36] Speaker 02:
Correct.

[00:10:37] Speaker 04:
There's the time of the submission of the SF-171.

[00:10:40] Speaker 02:
Which is before the, yes.

[00:10:41] Speaker 02:
Before the vacancy announcement.

[00:10:42] Speaker 02:
No, no.

[00:10:42] Speaker 02:
The vacancy announcement comes out.

[00:10:44] Speaker 02:
Uh-huh.

[00:10:44] Speaker 02:
He submits the SF-171.

[00:10:46] Speaker 02:
Under normal circumstances, there would have been some quick response, but there was a two-year hiring freeze.

[00:10:52] Speaker 02:
Okay.

[00:10:52] Speaker 02:
That's the the unhidden gem and all this is that's what happened and and during during that period he came in and when he originally was hired he went to Joe love and said look I have this qualifying time in Haiti and this time as a peace officer because earlier I asked you at the time that he filed his SF 171 did he have a whole year worth experience and you said no no I

[00:11:15] Speaker 04:
But you also said at the time of the vacancy announcement, he did have one year worth of experience.

[00:11:21] Speaker 02:
No.

[00:11:21] Speaker 02:
At the time it was closed, I apologized.

[00:11:23] Speaker 02:
I was getting a little confused.

[00:11:24] Speaker 02:
When the vacancy announcement is closed, it's one of the positions.

[00:11:27] Speaker 03:
It seems to be easy to get confused about it.

[00:11:29] Speaker 03:
So you're not contending that at the time of the vacancy announcement, he had a year's service?

[00:11:34] Speaker 02:
No.

[00:11:34] Speaker 02:
It's when it was closed.

[00:11:35] Speaker 03:
OK.

[00:11:37] Speaker 03:
And when it was closed, you're relying, you have to rely,

[00:11:41] Speaker 03:
on the probation officer experience as being qualifying experience, right?

[00:11:46] Speaker 02:
Correct.

[00:11:46] Speaker 03:
So we don't really need to concern ourselves with Haiti.

[00:11:49] Speaker 02:
Well, no, because the only way he would qualify is if you combined it with the Haitian time.

[00:11:53] Speaker 02:
That would get him over the year and a half.

[00:11:54] Speaker 04:
You said that he did not, even combining the Haitian time with the probation officer experience, he does not have a whole year worth of experience before SF-171, when SF-171 was filed.

[00:12:07] Speaker 02:
That's correct.

[00:12:09] Speaker 02:
And if you look at the OPM regulations on this, this is one of the things I think is missed.

[00:12:15] Speaker 02:
We cited it in our brief.

[00:12:17] Speaker 02:
At section 521-203, 5 CFR 521, it says that the grade is determined at the time of the appointment.

[00:12:24] Speaker 03:
And one only gets a- But I think we need to- Certainly are.

[00:12:28] Speaker 03:
Understand the facts.

[00:12:30] Speaker 03:
Sure.

[00:12:30] Speaker 03:
At the time of the actual hiring- Correct.

[00:12:33] Speaker 03:
He had, according to you,

[00:12:35] Speaker 03:
more than one year of experience.

[00:12:38] Speaker 03:
And you get there by combining the Haiti experience with the probation officer experience, correct?

[00:12:43] Speaker 03:
Correct.

[00:12:44] Speaker 03:
And the government contended that the probation officer experience doesn't count because it's not federal law enforcement experience.

[00:12:51] Speaker 03:
No.

[00:12:52] Speaker 02:
No.

[00:12:52] Speaker 02:
They simply said that at the time he applied for the position, he did not have a combined period of more than a year.

[00:13:00] Speaker 02:
Then at the hearing,

[00:13:02] Speaker 02:
They raised the issue.

[00:13:03] Speaker 02:
Tanya Bingham-Schweider, on direct, raised the issue that she did not calculate.

[00:13:08] Speaker 02:
She would not calculate his military time in Haiti.

[00:13:11] Speaker 03:
I understand.

[00:13:11] Speaker 03:
But you're not addressing what I'm asking about.

[00:13:14] Speaker 03:
Did the government contend that the probation officer experience didn't count as federal law enforcement?

[00:13:22] Speaker 02:
I am uncertain of that point.

[00:13:25] Speaker 02:
There was some contradictory testimony from Tanya Bingham-Schweider about whether she thought it did or not, but it was never made clear in the record to me what the basis of any of that really was.

[00:13:39] Speaker 02:
There was never a position taken.

[00:13:40] Speaker 02:
Remember, the way this all came about for us was this witness came in after the close of discovery as an essential expert.

[00:13:47] Speaker 02:
which we tried to oppose.

[00:13:49] Speaker 02:
One of the reasons we needed that deposition, Your Honor, is to address some of the questions you're raising.

[00:13:53] Speaker 02:
What do you mean by that?

[00:13:54] Speaker 03:
We had the opportunity to cross-examine her at the hearing.

[00:13:57] Speaker 03:
Why isn't that sufficient?

[00:13:59] Speaker 02:
Because I could not, in her disclosures, the pre-hearing disclosures,

[00:14:05] Speaker 02:
the government never once stated, if you look at those disclosures, never once stated that she's going to come in and testify that the grade we determine is at the time he applies.

[00:14:15] Speaker 03:
No, no, no.

[00:14:16] Speaker 03:
Why wasn't cross-examining her at the hearing sufficient to render any failure to allow the deposition non-prejudicial?

[00:14:26] Speaker 02:
Because we couldn't go into the basis, we couldn't go into

[00:14:30] Speaker 02:
The basis of her opinion, we couldn't call an expert to counter her.

[00:14:34] Speaker 02:
We couldn't.

[00:14:35] Speaker 02:
That's a different question.

[00:14:36] Speaker 03:
You're complaining that you didn't get to depose her.

[00:14:40] Speaker 02:
Correct.

[00:14:40] Speaker 03:
And I'm asking you, you had the chance to cross-examine her at the hearing.

[00:14:44] Speaker 03:
Why didn't that render any failure to allow a deposition?

[00:14:48] Speaker 02:
Because look at the way the cross-examination was limited.

[00:14:52] Speaker 02:
When I would object that she testified as an expert, the judge would overrule that.

[00:14:55] Speaker 02:
You haven't complained about the limitation of the cross-examination.

[00:14:58] Speaker 02:
I did.

[00:14:58] Speaker 02:
We said in the brief that she was brought on as an expert witness, and we continually objected to that.

[00:15:02] Speaker 03:
Where in your brief in this court did you say that there was an error in cabining the cross-examination?

[00:15:09] Speaker 02:
I think we alluded to the fact that there was an error in allowing her to speculate on issues that she wasn't a recipient witness.

[00:15:15] Speaker 02:
Where do you say in the brief that there was an error in limiting the cross-examination?

[00:15:21] Speaker 02:
I think the error was... I think our position is that our cross-examination was... Do you have a page in your brief that you could identify?

[00:15:30] Speaker 02:
Certainly, Your Honor.

[00:15:31] Speaker 02:
I see I'm out of time.

[00:15:32] Speaker 02:
Do you want me to pick it up?

[00:15:33] Speaker 02:
You're not out of time.

[00:15:46] Speaker 02:
Okay, certainly.

[00:15:46] Speaker 02:
Hold on one second, Your Honor.

[00:15:48] Speaker 02:
I'm sorry.

[00:16:02] Speaker 02:
If you look at page 2, we talk about how she engaged in opinion testimony.

[00:16:09] Speaker 02:
We also... Here do you say that the cross-examination was improperly limited?

[00:16:15] Speaker 02:
I don't believe we said so directly.

[00:16:18] Speaker 02:
I think we're out of time.

[00:16:19] Speaker 03:
We'll give you two minutes to... Okay.

[00:16:29] Speaker 03:
Thank you.

[00:16:29] Speaker 03:
This is Kristaniak.

[00:16:30] Speaker 03:
Is that the way you pronounce it?

[00:16:31] Speaker 01:
Yes.

[00:16:31] Speaker 01:
Thank you, Your Honor.

[00:16:33] Speaker 03:
I'd like to start actually just by turning to the application that was submitted by mr. Sorrell's because there's been somebody I just tell you what the problem of course with the AJ says it was undisputed that the Relevant time was the time of the vacancy announcement, but it wasn't undisputed There's conflicting testimony by ms.

[00:16:55] Speaker 03:
Bingham perhaps others as well saying the relevant times the vacancy announcement or the relevant time is the higher end

[00:17:03] Speaker 03:
And I think what we're trying to figure out is whether if that were an error, whether it was prejudicial.

[00:17:11] Speaker 01:
Certainly.

[00:17:12] Speaker 03:
And that turns in part on the question of whether the probation officer experience, which continued during that period, was in fact a qualifying experience.

[00:17:22] Speaker 01:
So on the probation officer experience, because during opposing counsel's argument, he referred to him as a police officer, a peace officer, probation officer, I would just like to refer the court to appendix page 574, which is the actual application submitted by Mr. Sorrell in 1995.

[00:17:39] Speaker 01:
And you see there that he describes this position we're talking about.

[00:17:42] Speaker 01:
And I'm in the section A, the first section there, as an extra help counselor.

[00:17:48] Speaker 01:
Hold on a second.

[00:17:49] Speaker 01:
Page 574 in the appendix.

[00:17:53] Speaker 01:
Which is page 104 in the PDF your honor?

[00:17:57] Speaker 01:
Okay, so you see there that this this position we're talking about he described Mr.. Sorrell's did as an extra help counselor and

[00:18:19] Speaker 01:
a juvenile hall counselor charged with the supervision, care, and custody of minors who are accused of every sort of misdemeanor and felonies.

[00:18:26] Speaker 01:
So I just wanted to make the record clear that that's the experience that Mr. Sorrell is talking about having continued, I guess, from the time he applied in 95 through his date of hire in 1998.

[00:18:35] Speaker 01:
Right.

[00:18:36] Speaker 04:
So did the government take the position that that was not qualifying experience?

[00:18:42] Speaker 01:
The factual finding of the AJA was that what the government looked at was the experience at the time of the application.

[00:18:49] Speaker 01:
That's the factual finding we're looking at right here.

[00:18:51] Speaker 01:
So we're not talking about whether or not... A different question.

[00:18:54] Speaker 04:
I'm asking you a different question.

[00:18:55] Speaker 04:
Right.

[00:18:56] Speaker 04:
Let's set the timing issue aside.

[00:19:01] Speaker 04:
Did the government contend that this work as an extra help counselor was qualifying or not?

[00:19:07] Speaker 01:
So there was testimony from Ms.

[00:19:08] Speaker 01:
Bingham that she, if she in her capacity, would not qualify this as qualifying experience.

[00:19:14] Speaker 01:
However, from a legal perspective, legal arguments, the argument of the agency has always been

[00:19:18] Speaker 01:
The experience at the time of the application is what matters.

[00:19:21] Speaker 03:
So I guess from a legal perspective, we've not... You're just not talking about the timing or just asking a different question.

[00:19:26] Speaker 01:
Right.

[00:19:27] Speaker 03:
Does this experience qualify?

[00:19:29] Speaker 01:
The testimony from the relevant witness from the agency was that it would not qualify, no.

[00:19:34] Speaker 01:
And I think Mr. Posing Council pointed out that this is a USERA case, and so we need to keep in mind that there needs to be a nexus to Mr. Sorrell's service in order for there to be any recovery, even if there were an error here.

[00:19:45] Speaker 01:
And as the court pointed out, he concedes that when he applied in 1995, the combination of the time spent in Haiti and the time spent as a special extra health counselor would not have qualified him for a nine.

[00:19:57] Speaker 01:
And so the question is really whether

[00:19:59] Speaker 01:
The factual finding that it was the date of application that mattered for the purposes of the GA grade.

[00:20:04] Speaker 03:
Yeah, but the question that we're trying to address is, assume that the relevant date is the date of hiring.

[00:20:10] Speaker 03:
Would he qualify, have the one year experience that was necessary?

[00:20:14] Speaker 03:
That's the question we're asking.

[00:20:16] Speaker 01:
Certainly.

[00:20:16] Speaker 01:
The testimony from Ms.

[00:20:18] Speaker 01:
Bingham, who again, the agency brought in as

[00:20:21] Speaker 01:
She's a supervisor of the agency right now in this department.

[00:20:24] Speaker 01:
She oversees six specialists and two assistants.

[00:20:29] Speaker 01:
And she's the chief of the Special Agent Recruitment Unit.

[00:20:32] Speaker 01:
Her testimony was that she would not consider this experience to be qualifying as an investigative law enforcement type experience for the purposes of a GS7 versus 9 under the framework that was set forth in the vacancy.

[00:20:45] Speaker 01:
Again, that's not where's the description of qualifying experience in the vacancy and certainly your honor so that would be part of So I would turn the court to pages so two one four four of the appendix PDF page 118 is where the vacancy announcement occurs and then if you keep

[00:21:11] Speaker 01:
Flipping just a couple pages after that, you have the criminal investigation qualification standards.

[00:21:16] Speaker 01:
Which page?

[00:21:17] Speaker 01:
Those start on 2147, PDF page 121.

[00:21:21] Speaker 01:
2147 in the appendix, PDF page 121.

[00:21:48] Speaker 03:
And her theory was because the experience as the probation officer was basically custodial, it didn't come within this description.

[00:21:59] Speaker 01:
And again, Your Honor, not probation officer, extra help counselor for juvenile delinquents.

[00:22:04] Speaker 01:
Yes, that was her testimony.

[00:22:05] Speaker 01:
But again, the factual finding of the AJ did not get that far.

[00:22:08] Speaker 03:
He essentially was undisputed.

[00:22:09] Speaker 03:
That testimony was undisputed, right?

[00:22:13] Speaker 03:
Or was there testimony of the contrary?

[00:22:15] Speaker 01:
So Mr. Sorrell testified that he believes he should have qualified as a GS9 based on the experience he undertook after application deadline two closing.

[00:22:23] Speaker 01:
Because what?

[00:22:24] Speaker 01:
Because he considers it to be law enforcement type activities.

[00:22:28] Speaker 03:
Well, did he testify that he did any of these tasks that are described here?

[00:22:32] Speaker 01:
We don't have the full testimony before us.

[00:22:34] Speaker 01:
I understand that there was some testimony along the lines that maybe he escorted minors to and from court, oversaw them.

[00:22:41] Speaker 01:
Maybe there was some investigation.

[00:22:43] Speaker 01:
Again, the question is whether, of course, again, this is a USERRA case, so we have to draw a nexus between his service in Haiti and the failure to give him a GS9.

[00:22:51] Speaker 01:
And the factual finding was that it's the time of application that the agency looks at.

[00:22:56] Speaker 04:
You say it's a factual finding.

[00:22:59] Speaker 04:
Well, go ahead.

[00:22:59] Speaker 04:
Continue your thought, and then I want to ask you about that.

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

[00:23:01] Speaker 01:
I just want to say the narrow finding this court would essentially have to reach is that

[00:23:07] Speaker 01:
Policy of the agency in 1998 actually was to retroactively look at all the experience gained in the delta between application and actual hire, and that they failed to do so here because of Mr. Sorrell's military service.

[00:23:20] Speaker 01:
That's the finding this court would need to make in order to find a recovery under you, Sarah, for Mr. Sorrell's.

[00:23:26] Speaker 04:
So there's been this discussion back and forth about the AG's finding that it's undisputed.

[00:23:33] Speaker 04:
that you look at the experience at the time of the application, right?

[00:23:39] Speaker 04:
But even there is inconsistent testimony from the key witness on this.

[00:23:45] Speaker 04:
So the concern is that how can we just review this for substantial evidence when the AJ mistakenly thought that it was undisputed and perhaps, you know, when you look at substantial evidence, you're supposed to look at the evidence that

[00:24:00] Speaker 04:
favors both sides, and as you're considering that, how can we justify this as a fact finding that's reviewed for substantial evidence given the sentence, the statement that it's undisputed, which is clearly incorrect?

[00:24:14] Speaker 01:
Certainly, Your Honor.

[00:24:14] Speaker 01:
So what you're referring to is, of course, the fact that Ms.

[00:24:16] Speaker 01:
Bingham referred several times during her testimony to the closing date of the announcement.

[00:24:20] Speaker 01:
And then as opposing counsel pointed out, in this particular announcement, it said open until filled.

[00:24:25] Speaker 01:
And so the closing date of the announcement

[00:24:27] Speaker 01:
As opposed to a normal government job, for example, the one I applied for, I believe it was only open for one month.

[00:24:32] Speaker 01:
So I applied in middle of May, it closed on May 31st.

[00:24:35] Speaker 01:
That was the closing date of the announcement.

[00:24:38] Speaker 01:
Here we have a job that was open until filled.

[00:24:40] Speaker 01:
And so Ms.

[00:24:41] Speaker 01:
Bingham was testifying in those contexts, and I can send the court to the portions of her testimony.

[00:24:46] Speaker 01:
But she was testifying, I believe, in a more general sense that, in general, they look at the closing date.

[00:24:54] Speaker 01:
But also, even within that context, her testimony was consistent that what the agency is looking at is what was actually submitted by the applicant at the time of their application.

[00:25:04] Speaker 04:
She said... You're telling us we're not supposed to find an inconsistency.

[00:25:07] Speaker 04:
But what if we do?

[00:25:08] Speaker 01:
Certainly, Your Honor.

[00:25:09] Speaker 01:
I think that the AJ made a factual finding based on the overwhelming majority of her testimony.

[00:25:14] Speaker 01:
Again, it was consistent that what the agency looks at is the experience that is submitted at the time of the application.

[00:25:19] Speaker 03:
But the assumption is that he made a mistake in saying it was undisputed.

[00:25:23] Speaker 03:
Right.

[00:25:24] Speaker 03:
Let's assume he was wrong about that.

[00:25:26] Speaker 03:
What do we do?

[00:25:28] Speaker 01:
If he made an incorrect factual finding based on, obviously, the high standards for substantial evidence, that would be ground for this court, of course, to send it back to him.

[00:25:35] Speaker 01:
But I don't think that the court needs to get there

[00:25:37] Speaker 03:
The testimony and it back if there was a showing of prejudice.

[00:25:43] Speaker 03:
In other words, a showing that this would have been different.

[00:25:47] Speaker 03:
Right.

[00:25:48] Speaker 03:
If the agency had considered the extra help duty experience between the vacancy announcement and the hire.

[00:25:58] Speaker 03:
Right.

[00:25:58] Speaker 03:
You address that whether it would have made a difference.

[00:26:01] Speaker 01:
Again, I think the court should credit the testimony of Ms.

[00:26:05] Speaker 01:
Bingham, who has, I believe, at this point in time, over 20 years experience doing particularly this, which is reviewing applications and then determining what grade should be assigned to them.

[00:26:13] Speaker 01:
And she testified that she would not credit that sort of experience.

[00:26:16] Speaker 01:
with the kinds of investigatorial, narcotics investigation, law enforcement experience that they would usually use to give a GS9.

[00:26:26] Speaker 01:
In discussions with my agency counsel, he gave the example of it's set up that way that if you have a couple years experience as an FBI agent, they want to make sure that when you come over to the DEA, you actually can get a higher grade as opposed to someone who's just coming in.

[00:26:39] Speaker 01:
And I would just like to briefly address the assertion made that the military experience was not credited at all, that Ms.

[00:26:46] Speaker 01:
Bingham testified to that.

[00:26:48] Speaker 01:
That's inaccurate based on the testimony.

[00:26:49] Speaker 01:
And I would refer the court to page 18 of the appendix, which is in the AJ's decision, where he stated that military service gives an applicant, such as the appellant, a competitive advantage between candidates for the same position.

[00:27:05] Speaker 01:
And as Ms.

[00:27:05] Speaker 01:
Bingham testified, essentially it works that

[00:27:08] Speaker 01:
Based on the experience of the different candidates, they're sectioned out into GS7, GS9, GS11, whether or not you have a master's degree that would get you into a GS9, for example.

[00:27:18] Speaker 01:
Then once you have the experience to be considered for a GS7, there's a point tallying type system, which I think at maximum is probably about 100 points.

[00:27:26] Speaker 01:
You get 10 extra points for any former military service.

[00:27:29] Speaker 01:
And so that is calculated into the points.

[00:27:32] Speaker 01:
And it gives someone with military service

[00:27:34] Speaker 01:
an advantage to receive that job over someone who does not have it.

[00:27:37] Speaker 01:
So I just wanted to make the record clear that that was a finding of the AJA.

[00:27:40] Speaker 01:
And Ms.

[00:27:40] Speaker 01:
Bingham did testify to that effect.

[00:27:45] Speaker 03:
OK.

[00:27:46] Speaker 03:
Anything further?

[00:27:47] Speaker 01:
If there's no further questions, obviously there were some other issues raised by the petitioner.

[00:27:51] Speaker 01:
But if the court does not have questions on those, I will see the rest of my time.

[00:27:55] Speaker 01:
Thank you.

[00:27:56] Speaker 01:
Thank you.

[00:27:57] Speaker 02:
Your Honor, very briefly.

[00:27:58] Speaker 02:
Mr. Burns.

[00:27:59] Speaker 02:
Yes.

[00:27:59] Speaker 02:
If you look at page of the appendix 2668, one of the things that

[00:28:04] Speaker 02:
There's a couple of misunderstandings here.

[00:28:05] Speaker 02:
First of all, Tanya Bingham-Swider didn't address his Butte County experience after the SF-171 was filed, had she.

[00:28:12] Speaker 02:
She would have noted as he testified that his duties increased.

[00:28:16] Speaker 02:
Question, while you were at Butte County, did you investigate any narcotics type criminal activities?

[00:28:22] Speaker 02:
Yes.

[00:28:23] Speaker 02:
So here's the problem with this case, and this is why it's

[00:28:27] Speaker 02:
And frankly, I feel for both attorneys in the court, this is why it's so difficult to address.

[00:28:33] Speaker 02:
It's what happens when a judge allows.

[00:28:37] Speaker 02:
But this is about Haiti.

[00:28:39] Speaker 02:
No, no, it's about Butte County.

[00:28:41] Speaker 02:
While you're at Butte County, did you investigate any narcotic-type criminal activities?

[00:28:45] Speaker 02:
The answer, yes.

[00:28:46] Speaker 02:
That is 19 to 21 on the form.

[00:28:50] Speaker 02:
OK, so here's the problem with the case.

[00:28:53] Speaker 02:
I think the court's correctly identified it.

[00:28:55] Speaker 02:
It's what happens when you allow a surprise witness at the last minute to come in who testifies as a virtual expert, who testifies without any reference to documents or any reference to policies, who's not allowed to be deposed.

[00:29:08] Speaker 02:
And the reason that that's important is... Can I ask you a question?

[00:29:11] Speaker 04:
I understand your position.

[00:29:12] Speaker 04:
Had you had an opportunity to depose Ms.

[00:29:14] Speaker 04:
Bingham?

[00:29:15] Speaker 04:
What do you think you would have been able to prove?

[00:29:17] Speaker 02:
I would have been able to bring an expert in to say that's not the way we do it I would have been able to put I could have also brought in Joe love Who could have explained why he had the comments he did if on the SF 171 that tells the story itself if the agency's position?

[00:29:32] Speaker 02:
Was you don't qualify as a set as a nine because of your experience then why do mr?

[00:29:37] Speaker 02:
Love send a note to my client saying please run this up your chain of command did you ever ask to bring in an expert after she testified I

[00:29:44] Speaker 02:
We wanted her qualified as an expert.

[00:29:47] Speaker 02:
We tried to block her testimony based on that because we didn't know what she was going to testify to.

[00:29:51] Speaker 03:
Because in the disclosures, they never told us she was going to testify on grade calculations.

[00:30:03] Speaker 03:
I believe we

[00:30:07] Speaker 02:
referenced in our motion that we could put on contrary witnesses and that we could explore the basis of her testimony.

[00:30:15] Speaker 02:
Frankly, until she actually testified, I wasn't- You're talking about when she actually testified.

[00:30:19] Speaker 03:
Did you say at that point, we've been surprised we needed additional time to develop an expert?

[00:30:26] Speaker 02:
No, we did not at that time because the decision had already been made that she wasn't an expert.

[00:30:31] Speaker 02:
So what we were going to counter, I must have objected 12 times to her expert testimony, and I kept being told she was a fact, she was a Percipian fact witness, even though the agency denied it.

[00:30:41] Speaker 02:
So how do I present an expert to counter non-expert testimony that should never have been allowed in in the first instance?

[00:30:47] Speaker 03:
So just briefly aside from the exchange that you quoted on 2668, what evidence was there?

[00:30:57] Speaker 03:
that this was a position within the qualified experience description in the vacancy announcement?

[00:31:07] Speaker 02:
Well, it wasn't any, because we were surprised by Tanya Bingham-Schweider claiming that going into the issue of the qualifications of the testimony.

[00:31:18] Speaker 02:
So this is it, that one column?

[00:31:20] Speaker 02:
There may be more.

[00:31:21] Speaker 02:
There may be more in pre-hearing submissions.

[00:31:23] Speaker 02:
Without looking at the entire record, I can't say.

[00:31:25] Speaker 02:
I know that there is some testimony.

[00:31:27] Speaker 02:
And again, Your Honor, I think that the problem is that as a court said, there's a process that goes with presenting cases.

[00:31:38] Speaker 02:
And it's through discovery, and it's through disclosures.

[00:31:40] Speaker 02:
And when you get a surprise like this at the end of your position, at the end of your case, right before a hearing, there's no way to counter that.

[00:31:48] Speaker 02:
We did everything we could to try to get the recipient witness at the time who actually filled out these forms and discussed this with my client, who the agency said they couldn't find.

[00:31:58] Speaker 03:
OK.

[00:31:58] Speaker 03:
I think we're out of time.

[00:31:59] Speaker 03:
All right.

[00:31:59] Speaker 02:
Thank you.

[00:31:59] Speaker 02:
Thank you.

[00:32:00] Speaker 03:
Thanks, old counsel.

[00:32:01] Speaker 02:
The case is submitted.