[00:00:00] Speaker 00:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:06] Speaker 00:
God save the United States and its honorable court.

[00:00:16] Speaker 02:
All right, let's proceed.

[00:00:18] Speaker 02:
First argued case is number 19, 2032, Brenner against the Department of Veterans Affairs.

[00:00:25] Speaker 02:
Mr. Weldon, please proceed.

[00:00:27] Speaker 04:
Yes, thank you.

[00:00:28] Speaker 04:
May it please the court.

[00:00:30] Speaker 04:
Good morning, Your Honor.

[00:00:31] Speaker 04:
My name is Alan Wolin and I represent the petition of Lawrence Brenner.

[00:00:38] Speaker 03:
Mr. Wolin, this is Judge Wallach.

[00:00:40] Speaker 03:
I'd like to ask you a couple of housekeeping questions.

[00:00:43] Speaker 03:
Yes, Your Honor.

[00:00:44] Speaker 03:
Am I correct that Mr. Brenner has abandoned his discrimination claims in keeping with his Rule 15C statement?

[00:00:53] Speaker 03:
That's correct, Your Honor.

[00:00:56] Speaker 03:
On page 40 of the joint appendix, the MSPB notes that Mr. Brenner also had a complaint pending before the EEOC.

[00:01:07] Speaker 03:
Do you know the status of that?

[00:01:09] Speaker 04:
Yes, Your Honor.

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The administrative judge in that case granted summary judgment on Mr. Brenner's discrimination claim.

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and that the matter is currently under appeal to the EEOC's Office of Federal Operations.

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In whose favor was that summary judgment granted?

[00:01:31] Speaker 04:
Yes, Judge, I'm sorry.

[00:01:32] Speaker 04:
It was granted in favor of the agency.

[00:01:37] Speaker 03:
Okay, thank you.

[00:01:40] Speaker 04:
May I proceed, Your Honor?

[00:01:41] Speaker 04:
Yes, proceed.

[00:01:43] Speaker 04:
Okay, thank you.

[00:01:44] Speaker 04:
For purposes of my discussion today, Your Honors,

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There are three points that I would like to focus on.

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The first point deals with the retroactive application of 38 USC 714 to justify petitioner's removal in this case.

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The second point is the failure of the agency to provide petitioner with procedural safeguards such as a performance improvement plan and other remediation to which he was entitled once it is determined

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that 714 could not be applied to allegations that predated the effective date of 714, and also by the agency's reliance on performance issues that occurred more than one year before the proposed removal was issued.

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These safeguards, Your Honor, are mandated in the VA Handbook and by Chapter 43, assuming Chapter 43 would apply here.

[00:02:48] Speaker 02:
But is it correct that at least one half year of the issues that were raised were after the enactment of 7-14 or the effective date?

[00:03:00] Speaker 04:
Yeah, I mean, that's certainly a question in the case, Your Honor.

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This case did not wholly predate the enactment of 7-14.

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Part of the case occurred subsequent to 7-14, and that's certainly one of the exceptions that the government tries to carve out here.

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However, Charge 1 and Charge 2 predominantly occurred prior to the effective date of the act.

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And I don't believe it's for the court to speculate as to how the administrative judge would have ruled in only applying Section 714 to part of the case, which was essentially Charge 3, certainly had

[00:03:47] Speaker 04:
uh... seven fourteen not applied here to events uh... that occurred prior to the effective date of the act uh... seven fourteen of course would not have uh... applied and even assuming arguably that chapter forty three applied then uh... uh... the uh... petition would have been entitled to certain procedural safeguards which he did not uh... received your honor uh... and which the administrative judge held

[00:04:16] Speaker 04:
He was not entitled to, because under the administrative judges' conclusion, Chapter 43 did not apply to the prior acts.

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So that's certainly one issue.

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The third issue, Your Honor.

[00:04:35] Speaker 03:
Mr. Wallin.

[00:04:35] Speaker 04:
Yes.

[00:04:36] Speaker 03:
This is Judge Wallin.

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I want to ask you a couple of factual questions.

[00:04:41] Speaker 03:
Sure.

[00:04:42] Speaker 03:
On page 27 of the joint appendix,

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The MSPB says, I'm quoting, in support of Charge 2, the VA alleged that Mr. Brenner had backdated his notes in GC laws to reflect the same day's service in seven cases, despite the fact that no such timely service had been provided.

[00:05:07] Speaker 03:
Mr. Brenner doesn't deny that he backdated the entries, does he?

[00:05:10] Speaker 04:
Well, he certainly had an explanation for it, Your Honor.

[00:05:14] Speaker 04:
He argued that it was certainly nothing intentional.

[00:05:16] Speaker 04:
I understand.

[00:05:18] Speaker 04:
That's a yes or no.

[00:05:19] Speaker 04:
I'm correct, he doesn't deny it.

[00:05:21] Speaker 04:
Well, he doesn't deny it, but he had what he believed to be a legitimate explanation, and those particular entries only were a minor portion of the entries that he made.

[00:05:35] Speaker 04:
Many of those entries in that particular charge... Mr. Wallen.

[00:05:40] Speaker 04:
Yes.

[00:05:42] Speaker 03:
Stop.

[00:05:42] Speaker 03:
Yes, Your Honor.

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If you get any yes or no question, answer yes or no.

[00:05:47] Speaker 03:
I have further questions.

[00:05:48] Speaker 03:
You're just in time.

[00:05:51] Speaker 03:
Yes, Your Honor.

[00:05:54] Speaker 04:
He did state that... I don't know that he called it back dated, but he did say that he... Mr. Wallen.

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...dated it.

[00:06:02] Speaker 03:
Mr. Wallen, let's ask my question.

[00:06:05] Speaker 03:
Yes, Your Honor.

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To the extent he did backdate entries, was it to record the date something actually happened or to conceal the date something actually happened?

[00:06:17] Speaker 04:
No, it was not to conceal the date that something happened.

[00:06:19] Speaker 03:
Mr. Wallen, wait till I finish my question.

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That is, is the delayed entry, delayed dead entry,

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simply a correction or is it false?

[00:06:35] Speaker 03:
That's my question.

[00:06:37] Speaker 04:
I don't believe it was false, Your Honor.

[00:06:40] Speaker 03:
Okay, tell me why.

[00:06:43] Speaker 04:
Because the services were actually performed and the backdating, to call it that, was simply unintentional and there was certainly no intent

[00:07:01] Speaker 04:
on my client to backdate.

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My client was under a lot of pressure at the time, and to the extent that he did backdate, it was totally unintentional, but the services were performed.

[00:07:13] Speaker 03:
Okay, on page 28 of the Joint Appendix, the MSPB says that when Ms.

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Duncan subsequently, and I'm quoting, subsequently went into GC laws, she determined that

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Mr. Brenner's justification for backdating was actually untrue since 15 of his previously entered entries had not been backdated.

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Leaving aside the characterization of the work, was Mr. Brenner's justification that he had backdated entries to reflect when work was actually done rather than input untrue?

[00:07:52] Speaker 03:
No.

[00:07:53] Speaker 03:
I thought so.

[00:07:54] Speaker 03:
I thought that was your position.

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Right.

[00:07:57] Speaker 03:
About about how many GC laws entries Has mr. Brenner made over the last decade, you know, I believe there's hundreds your honor is 15 a meaningful sample No Hey, why not?

[00:08:14] Speaker 04:
Because it was a small percentage of the overall entries he made and it certainly was not characteristic of his of his performance or his

[00:08:24] Speaker 04:
ability to comply with the regulations.

[00:08:30] Speaker 03:
One legal question, then.

[00:08:35] Speaker 03:
On page 40 of the red brief, the government says, quote, even if the agency were required to apply the Douglas Factors, Mr. Brenner has failed to identify any relevant factor that the agency failed to consider.

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Is there any merit to that argument?

[00:08:51] Speaker 04:
No.

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He identified many, many Douglas factors.

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Certainly he identified his long past, very satisfactory performance.

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He identified circumstances that preceded

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the situation here, which came into play, including his accident and resultant disability.

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He cited his belief that he certainly was able to be rehabilitated and in mitigation of the adverse action.

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He claimed that there was certainly no notoriety

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to the issues here.

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He claimed that there were unusual drop tensions between he and his supervisor, which are documented.

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He cited the fact that he did have complaints pending against his supervisors at the time the action occurred.

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So he claimed a whole host of Douglas factors, Your Honor, which certainly should have been considered

[00:10:08] Speaker 04:
in mitigation of the adverse action here.

[00:10:12] Speaker 04:
And quite simply, under Sayers, and more recently Harrington, this court has indicated that under 714, the assessment of the penalty is part of the overall substantial evidence analysis.

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And the court here categorically stated, I should say the board here categorically stated,

[00:10:35] Speaker 04:
that she did not have the authority to consider whether the penalty was appropriate in this case because 714 precluded her.

[00:10:49] Speaker 01:
This is Judge O'Malley, I'm sorry.

[00:10:52] Speaker 01:
What is your response to the argument on the other side that the discussion and Sayers-Ray consideration of the penalty was actually just dicta?

[00:11:04] Speaker 04:
Well, I don't believe it was Dicta, and I think the court has recently reaffirmed it in Harrington that it was not Dicta, that certainly the penalty is an essential part of the overall substantial evidence analysis.

[00:11:27] Speaker 04:
And so I don't believe it was Dicta or Dicta at all,

[00:11:31] Speaker 04:
I think that the court in my opinion stated and reaffirmed subsequent to Sayers that an assessment of the penalty is an essential element of the overall determination.

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And I might add that the agency here tries to carve an exception to performance-related issues.

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And I believe that 714 covers not only conduct-based issues, but performance-based issues as well.

[00:12:08] Speaker 04:
That's right in the statute.

[00:12:09] Speaker 04:
The court at several junctures in Sayers indicated that 714 applies to performance-based issues as well as conduct-related issues, which would also include

[00:12:29] Speaker 01:
uh... the uh... would uh... uh... having to consider the uh... the uh... the penalty and let me let me ask you a question before you before you sit down uh... because i know you've got you want to save some of your time for rebuttal but assuming we agree with you that sayers uh... requires remand uh... what would that remand look like in other words are you asking that we say

[00:12:56] Speaker 01:
everything needs to be considered without reference to 714 and all of the safeguards that would have been in place prior to 714 should be afforded to Mr. Brenner, or are you asking that we remand and direct the board to not consider anything that happened before 714 passed?

[00:13:20] Speaker 04:
Well, I think that there was a one-year limitation

[00:13:26] Speaker 04:
which is incorporated into chapter 43, as well as the VA handbook, which states that you can't go back more than one year.

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So even if chapter 43 applied here, and we can't even speculate whether chapter 43 applied or chapter 75 applied, but even assuming that chapter 43 would have applied, then even if

[00:13:55] Speaker 04:
the board could consider events that occurred prior to the effective date of the act, it would be anything that occurred within one year before.

[00:14:09] Speaker 04:
And I don't even know, to be honest with you, Your Honor, if that would be anything prior to the effective date.

[00:14:14] Speaker 01:
So, yeah, so... Okay, so I guess I'm not quite sure what your answer is.

[00:14:20] Speaker 01:
So your answer is,

[00:14:22] Speaker 01:
I gave you two options, and you're saying if it's the first option that you want all the protections, then that also would mean that they can't go back more than a year.

[00:14:31] Speaker 04:
Right, and I think that would preclude most, if not all, of the allegations.

[00:14:37] Speaker 04:
I believe the proposal here was brought in March of 2018.

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So certainly, anything that occurred prior

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to one year before March of 2017 would not be able to be utilized.

[00:14:56] Speaker 04:
And with reference to anything else, then my client would have required a performance improvement plan, remediation under Chapter 43, which he never received.

[00:15:08] Speaker 01:
There was never a performance improvement plan.

[00:15:10] Speaker 01:
Do you think there is enough that occurred after the relevant date, after the passage of 714

[00:15:17] Speaker 01:
that the board could still proceed with consideration of some kind of penalty?

[00:15:25] Speaker 04:
Well, my position would be no, but I do have to concede that there was a portion of the charges, more specifically Charges 3B, which was subsequent to 714.

[00:15:39] Speaker 04:
But again, the whole basis of that was improper because there was no performed improvement plan to begin with.

[00:15:46] Speaker 04:
Okay.

[00:15:46] Speaker 04:
Thank you.

[00:15:48] Speaker 04:
Thank you, Your Honors.

[00:15:50] Speaker 02:
Okay, anything else from Mr. Wellen at this point?

[00:15:52] Speaker 02:
We'll save the rebuttal time.

[00:15:54] Speaker 04:
Thank you, Your Honor.

[00:15:56] Speaker 02:
Okay, then let's hear from the government, Ms.

[00:15:59] Speaker 02:
Speck.

[00:16:00] Speaker 00:
Good morning, Your Honor.

[00:16:01] Speaker 00:
We respectfully request that the Court affirm the decision of the Merit Systems Protection Board.

[00:16:06] Speaker 00:
I want to start out with one threshold issue, which I have

[00:16:09] Speaker 00:
raised with opposing counsel and that the joint appendix that has been filed in this case is incomplete.

[00:16:15] Speaker 00:
It doesn't include several deposition testimony and other documents that I cited in my brief.

[00:16:22] Speaker 00:
I've talked to opposing counsel about it and we anticipate filing some kind of motion to file a corrected joint appendix so that all of the appendix pages that are cited are before the court.

[00:16:34] Speaker 00:
Your Honor.

[00:16:35] Speaker 02:
When do you have in mind conducting that filing?

[00:16:39] Speaker 00:
Your Honor, we'd like to, as soon as possible, I'm in the process of identifying, we just, in preparing for this argument, I identified several pages that were not there, so we intend to, I don't know when we'll have the full corrected joint appendix, but we intend to file a motion shortly, Mr. Wollin is

[00:17:02] Speaker 00:
has been, we've agreed to work together.

[00:17:05] Speaker 00:
If there's a date the court needs it by, we'll certainly also endeavor to make that happen as well.

[00:17:12] Speaker 02:
Well, I'd say with all deliberate speed would be appropriate.

[00:17:15] Speaker 02:
Okay, proceed.

[00:17:20] Speaker 00:
Yes, Your Honor.

[00:17:21] Speaker 00:
Mr. Brenner was removed for a pattern of poor performance that began before the act was passed, which was January 23rd, 2017, and became worse after the act was passed.

[00:17:34] Speaker 03:
Ms.

[00:17:34] Speaker 03:
Speck, this is Judge Wallach.

[00:17:36] Speaker 00:
Yes, Your Honor.

[00:17:37] Speaker 03:
On page 13 to 14 of the Blue Brief, Mr. Brenner argues that in assessing his response to the DMC, which formed the basis of charges one and three,

[00:17:50] Speaker 03:
The VA's deciding official judged his timeliness based upon the erroneous, I'm inserting that belief, that the SLA requires a legal advisement within seven days after receiving a referral from the DMC when what he says is it actually requires the response be within seven days of obtaining the facts and documents supporting the DMC request.

[00:18:18] Speaker 03:
On pages 19 and 20 of the red break,

[00:18:20] Speaker 03:
You argue that, I'm quoting now, Mr. Brenner failed to introduce any evidence that this distinction makes any difference, or that he timely submitted his assignments within seven days of receipt of the facts and documents.

[00:18:34] Speaker 03:
Two questions.

[00:18:36] Speaker 03:
One, was the burden on Mr. Brenner to introduce that evidence?

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And two, can the VA's determination be supported by substantial evidence if it failed to prove for Charges 1 and 3

[00:18:50] Speaker 03:
that Mr. Brenner was actually late under the rules as they applied.

[00:18:56] Speaker 00:
Mr. Your Honor, we believe that there's substantial evidence in the record that shows that he failed.

[00:19:01] Speaker 00:
I mean, we're not talking about a situation in which he didn't meet it by seven days or which he was close.

[00:19:08] Speaker 00:
As the MSPB noted on page 18 through 19 of the joint appendix,

[00:19:13] Speaker 00:
that he did not testify that any of the cases were complicated or that he required additional information and that he didn't dispute missing the deadline.

[00:19:21] Speaker 00:
And again, as the Joint Appendix shows and as the agency's decision shows, at least for the charge one, he failed to meet the seven-day requirement on 31 occasions, ranging from 10 to 147 days and was more than two weeks late in all but four of them.

[00:19:40] Speaker 00:
that's reflected in the decision on page Appendix 15 and several were missed by more than 100 days.

[00:19:46] Speaker 01:
Council, weren't almost all of those events that occurred before the passage of 714?

[00:19:54] Speaker 00:
Some of them were for Charge 1.

[00:19:57] Speaker 00:
Charge 3 dealt with, at least we identified in the brief,

[00:20:01] Speaker 00:
which there were still several that occurred after June 23rd, 2017.

[00:20:08] Speaker 00:
Also, with respect to charge three, which dealt with the next fiscal year, there were all of the charges were after that, and he failed to meet the seven-day deadline for the DMC in 36 instances.

[00:20:21] Speaker 01:
Well, I think you're being a little less than clear when you say some or

[00:20:28] Speaker 01:
You know, we're talking the vast majority occurred before 714 was passed, right?

[00:20:35] Speaker 00:
No, Your Honor.

[00:20:36] Speaker 00:
I mean, for Charge 3, it was certainly all of them that occurred after Chapter 714 was passed.

[00:20:42] Speaker 00:
Certainly for Charge 1, I don't have it.

[00:20:45] Speaker 00:
I believe we identified the number in our brief.

[00:20:48] Speaker 00:
It's certainly all of the deadlines are identified in the MSPB's decision.

[00:20:54] Speaker 01:
Well, it certainly was a vast majority, but as to that charge, it was at least 20, more like 24 out of 31.

[00:21:03] Speaker 01:
But putting that aside, and you're unwilling to answer that question, are you arguing that 714 was not retroactively applied at all, or are you saying that even if Sayers says what it says, that somehow the retroactive application was harmless?

[00:21:24] Speaker 00:
We're arguing that there was some of, it's understood that some of his performance issues occurred before June 23rd, 2017 when the Act was passed.

[00:21:36] Speaker 00:
Our position is that he was removed and certainly there are

[00:21:40] Speaker 00:
We break it down in our brief.

[00:21:42] Speaker 00:
Charges 1 and 2 did include performance that occurred after the Act was passed.

[00:21:48] Speaker 00:
And so our position is that he was removed for a pattern of poor performance that began before the Act was passed and, in fact, became worse despite repeated counseling.

[00:21:58] Speaker 01:
So, again, are you saying that 714 was not retroactively applied at all to him, or are you saying that the retroactive application somehow becomes harmless if

[00:22:10] Speaker 01:
the conduct that occurred afterward is similar to the conduct that occurred before?

[00:22:18] Speaker 01:
Which is it?

[00:22:20] Speaker 00:
It was partially applied retroactively unless the court accepts our argument that there was a pattern of poor performance.

[00:22:27] Speaker 00:
Certainly in a Chapter 43 action, the agency can consider a performance that occurred before they put the employee on a performance improvement plan.

[00:22:37] Speaker 00:
Our position is that he showed no intent, despite being repeatedly counseled by his supervisors, despite receiving a written reprimand, despite receiving numerous emails from his supervisors, to get better and rehabilitate his performance.

[00:22:52] Speaker 00:
Certainly the administrative judge indicated the agency proved charges one and three by more than substantial evidence.

[00:23:00] Speaker 01:
But the administrative judge assumed that 714 governed the entirety of the analysis, did he not?

[00:23:07] Speaker 00:
Yes, Your Honor.

[00:23:08] Speaker 01:
Okay.

[00:23:09] Speaker 01:
So, and then in addition to things that occurred before 7-14 was passed, you mentioned things going all the way back to January of 2017.

[00:23:20] Speaker 01:
So that would be more than a year before the notice of the proposed removal, wouldn't it?

[00:23:28] Speaker 00:
Yes, Your Honor.

[00:23:30] Speaker 01:
Okay.

[00:23:30] Speaker 01:
So you've got two periods of time that are of concern, regardless of what we're looking at.

[00:23:38] Speaker 01:
Right?

[00:23:41] Speaker 00:
I'm sorry, I don't understand the court's question with the two periods of time.

[00:23:44] Speaker 01:
Two periods of time, regardless of the statutory governing section.

[00:23:51] Speaker 01:
Right?

[00:23:52] Speaker 01:
We have to consider the things that occurred before 714 was passed and see what impact that might have under Sayers.

[00:24:00] Speaker 01:
And we have to consider anything that occurred before the one year

[00:24:08] Speaker 01:
governing limitations period, right?

[00:24:12] Speaker 00:
The one year governing limitations period for what, Your Honor?

[00:24:17] Speaker 01:
It occurred more than one year before the notice of proposed removal, some of the activities that you cite.

[00:24:25] Speaker 00:
Yes, Your Honor.

[00:24:26] Speaker 01:
Okay.

[00:24:29] Speaker 01:
Okay, and do you agree with your friend on the other side that Harrington sort of

[00:24:36] Speaker 01:
resolved your argument or disputes your argument, undercut your argument at least, that the discussion of penalty consideration in Sayers was mere dicta.

[00:24:48] Speaker 00:
Yes, Your Honor.

[00:24:48] Speaker 00:
Certainly, although we dispute the holding, we understand that the court said that it was a part of the holding in Sayers.

[00:24:57] Speaker 00:
But we note that in the Sayers case, the court did seem to draw a distinction between performance-based cases and

[00:25:05] Speaker 00:
misconduct-based cases, and this is certainly the first performance-based case that is before the court, and certainly the court, in its discussion of Lisecki, indicated that there are more deference to be afforded to the agency.

[00:25:22] Speaker 01:
Sayers did reference both types, as did Harrington, didn't it?

[00:25:27] Speaker 00:
But both removals in FAERS and the removal in inherent were about misconduct-based removals.

[00:25:36] Speaker 00:
Certainly, like it changed 1317.

[00:25:39] Speaker 03:
Is it the government's position that there is no misconduct basis in this case?

[00:25:46] Speaker 00:
Your Honor, this was considered a performance-based removal.

[00:25:53] Speaker 00:
Why?

[00:25:55] Speaker 00:
Mr. Brenner didn't meet the criteria under his performance standards.

[00:26:00] Speaker 00:
He failed to meet the requirements of timeliness.

[00:26:05] Speaker 01:
But other than saying that now in support of your argument that we can draw a distinction between the two, where in the record did the agency say that there was nothing relating to misconduct?

[00:26:21] Speaker 00:
Notice of proposed removal and the removal were based on performance.

[00:26:26] Speaker 00:
Certainly, again, I don't know if the pages are different in what Mr. He didn't include the pages that I cited from the proposed removal in his brief, but they were both, they were tied to the standards, his performance standards for timeliness,

[00:26:48] Speaker 00:
and professional responsibility and accountability.

[00:26:52] Speaker 00:
So they were tied to his performance standards, not to misconduct, the fact that he failed to perform his work on time and that he failed to adhere to requirements for professional responsibility in his dealings with his supervisors and in his... Hi, Counselor.

[00:27:12] Speaker 01:
I guess I'm having a really hard time understanding why the government doesn't simply say,

[00:27:18] Speaker 01:
Look, in light of Sayers and in light of Harrington, it makes sense to have a remand and that you would agree to a remand.

[00:27:27] Speaker 01:
And then this whole thing could be done appropriately and his behavior can be considered under all the appropriate standards.

[00:27:36] Speaker 01:
I don't understand the battle against that.

[00:27:40] Speaker 00:
Your Honor, simply put, there's... Oh, I'm sorry, Your Honor, I didn't mean to interrupt.

[00:27:45] Speaker 00:
The problem is this is the first performance case.

[00:27:48] Speaker 00:
We only had misconduct cases before.

[00:27:51] Speaker 00:
The court seemed to indicate there was some difference in how it would defer to the agency and sayers with performance versus misconduct.

[00:27:59] Speaker 00:
There's also questions we weren't sure exactly how to fashion a remand in considering this.

[00:28:07] Speaker 00:
We've argued in our brief that the application of the Douglas Factors deals with the efficiency of the service requirement under 5 USC 7513.

[00:28:16] Speaker 00:
So it was unclear if we remanded it, if there would have to be an application of the Douglas Factors.

[00:28:22] Speaker 00:
So I think the agency is very much looking for guidance from the court as to how something would proceed if this was remanded because we felt, honestly, in considering how to proceed with this case,

[00:28:36] Speaker 00:
there were a lot of open questions that it wasn't clear often that a remand would not create more problems than it solved.

[00:28:44] Speaker 01:
Well, and maybe that's where your arguments have been focused on what a remand should look like.

[00:28:50] Speaker 01:
So let me ask you the question I asked to your friend on the other side.

[00:28:54] Speaker 01:
If we were to say that under Sayers and Harrington, we have no choice but to remand, would we be remanding to say

[00:29:02] Speaker 01:
You can't, you shouldn't, you're not allowed to consider anything before passage of 714?

[00:29:07] Speaker 01:
Or would we be remanding to say that you can consider the whole scope of conduct, but you have to, you have to consider it under Chapter 43 instead of 714 and provide all the protections afforded.

[00:29:24] Speaker 00:
And I don't think he, he was not removed under Chapter 43.

[00:29:27] Speaker 00:
So, I mean, I get it.

[00:29:30] Speaker 00:
Or Chapter 75, either one.

[00:29:32] Speaker 00:
Right, he was removed under Section 714.

[00:29:35] Speaker 00:
I think the court could structure it that conduct, I mean, I think his pre-June 23rd, 2017 conduct colors this.

[00:29:45] Speaker 00:
I think the court could say it needs to be reconsidered based on anything after June 23rd, 2017.

[00:29:51] Speaker 00:
Would that have been sufficient?

[00:29:57] Speaker 00:
possibly taking into account that there was a pattern of poor performance.

[00:30:01] Speaker 00:
He was certainly informed of his poor performance before the statute was passed, and it got worse and not better.

[00:30:09] Speaker 00:
So one option would be just considering his post-June 23, 2017 conduct, or performance, not conduct, performance issues.

[00:30:17] Speaker 01:
But if you're saying that they would still be allowed to take into consideration the things that occurred before it, then aren't you still

[00:30:26] Speaker 01:
retroactively applying the statute.

[00:30:29] Speaker 01:
I mean, if that's the case, if it is a pattern and the pattern predates 714, don't you just have to walk away from 714?

[00:30:42] Speaker 00:
I don't think the agency has to walk away from 714.

[00:30:45] Speaker 00:
714 was certainly designed so that the agency could more expeditiously remove poor performers or employees that have committed misconduct.

[00:30:55] Speaker 00:
I mean, it seems odd that they have to pretend it didn't happen.

[00:30:59] Speaker 01:
Counsel, after the passage of the statute.

[00:31:02] Speaker 01:
So if you want to use 714, doesn't that limit your ability to look backward?

[00:31:10] Speaker 00:
I don't think that MS... I mean, the court wants to say that it absolutely cannot be... The Viacom case, which indicated that the court could look at a pattern

[00:31:20] Speaker 00:
You know, it seems odd to say that the agency has to pretend that nothing ever happened prior to the statute, but certainly I think there's enough here after June 23, 2017 to indicate that he was aware of he had performance-related issues and did nothing to improve them, and in fact, got worse.

[00:31:48] Speaker 00:
I see my time is up.

[00:31:49] Speaker 00:
If the court has no further questions, you respectfully request that the court affirm the MSPB's decision.

[00:31:53] Speaker 02:
Thank you.

[00:31:54] Speaker 02:
Anything else for Ms.

[00:31:55] Speaker 02:
Speck from the panel?

[00:31:58] Speaker 03:
Not for me.

[00:31:59] Speaker 03:
Thank you.

[00:31:59] Speaker 02:
Okay.

[00:32:00] Speaker 03:
No, thank you.

[00:32:01] Speaker 02:
Okay.

[00:32:01] Speaker 02:
Thank you.

[00:32:02] Speaker 02:
Then we'll hear from Mr. Wellen and you have your full rebuttal time.

[00:32:06] Speaker 04:
Yes.

[00:32:06] Speaker 04:
Thank you, Your Honor.

[00:32:07] Speaker 04:
First of all, I want to make it perfectly clear that before the effective date of the act, my client

[00:32:13] Speaker 04:
was not placed on any type of notice that his performance was deficient.

[00:32:17] Speaker 04:
In fact, in May of 2017, shortly before 7-14 was enacted, he received his mid-year appraisal.

[00:32:30] Speaker 04:
That mid-year appraisal was fully successful.

[00:32:34] Speaker 04:
In May of 2017, fully successful.

[00:32:37] Speaker 04:
At that time, he had a sit-down with the supervisor.

[00:32:41] Speaker 04:
Supervisor never mentioned, never mentioned any of the allegations which were then several months later utilized in the notice of proposed removal.

[00:32:54] Speaker 04:
So I just want to make that very clear that my client was not placed on any notice of any performance related issues prior to the effective date of the act and the mid-year confirms that.

[00:33:08] Speaker 04:
Any remand that would involve events that occurred prior to the effective date of the action, even utilizing Chapter 43 as the basis of that, would, in my estimation, be invalid because he was not provided with the safeguards.

[00:33:31] Speaker 04:
The government wants both ways here, and it can't have both ways.

[00:33:38] Speaker 04:
It says that there's no retroactivity here because the application, one way or the other, was harmless because the same standard would apply on the 43.

[00:33:51] Speaker 04:
But again, it ignores the fact that my client had these procedural safeguards, the performance improvement plan, the one-year statute, all of that, which would have effectively placed him on notice.

[00:34:03] Speaker 04:
And that was the whole concomitant intent in Chapter 43.

[00:34:08] Speaker 04:
You can make it easier to remove someone for performance-related issues.

[00:34:12] Speaker 04:
We'll then, on the other hand, give that person the rights in order to make sure that if he is going to be terminated for performance-related issues, he had every opportunity to improve.

[00:34:25] Speaker 04:
Well, my client here, prior to the effective date of the act, never had that opportunity to improve.

[00:34:31] Speaker 04:
and there was no pattern here.

[00:34:34] Speaker 04:
So in my estimation, that if this matter does get remanded, nothing that happened prior to the effective date of the act should even come into play, because clearly, once you conclude that Section 714 did not apply to the prior acts, then clearly, if Chapter 43 applied, then he

[00:34:59] Speaker 04:
did not receive any of those safeguards, which was a gross violation and which was, in no respect, harmless.

[00:35:09] Speaker 04:
And I might add, as Iran has touched upon, that a lot of these allegations do have misconduct involved.

[00:35:20] Speaker 04:
And we spoke about the allegation that he backdated GC laws.

[00:35:25] Speaker 04:
Well, that certainly has misconduct overtones.

[00:35:28] Speaker 04:
We talked about the allegation that he did not provide a draft of a letter which his supervisor had requested in a timely fashion.

[00:35:40] Speaker 04:
Well, that has misconduct overtones.

[00:35:42] Speaker 04:
So I'm not convinced that even if this action had not been brought under 714, that it would have been properly brought under

[00:35:52] Speaker 04:
uh... under section on the chapter forty three perhaps it should have been brought out of the chapter seventy five and then we get it up all of these other issues concerning the different burdens of proof in all of that uh... in my estimation uh... the government wants to have it both ways and they cannot have it both ways please finish your thought i'm sorry your honor can i please please finish finish what you're telling us and just one other point

[00:36:22] Speaker 04:
There is no distinction in 714, and this court has made no distinction in its previous decisions that performance-related issues does not apply to 714.

[00:36:35] Speaker 04:
714 abrogated Chapter 43 with reference to the VA, and there's no distinction to be carved between performance-related issues

[00:36:49] Speaker 04:
and misconduct-related issues.

[00:36:51] Speaker 04:
Thank you, Your Honors.

[00:36:53] Speaker 02:
Any more questions for Mr. Weldon?

[00:36:56] Speaker 04:
No, thank you.

[00:36:58] Speaker 02:
Okay, thanks to both counsels.

[00:37:00] Speaker 02:
The case is taken under submission.