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The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

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The first argued case for this morning is number 20-1248, Bullock against the United States.

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Mr. Mansour, please proceed.

[00:00:24] Speaker 05:
Thank you.

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And I want to thank the panel for their attention to this case in advance.

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This is a relatively old case.

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And may it please the court, I'm representing Ellen Bullock in this matter.

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I apologize.

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I haven't had an oral argument of this formality over the phone yet.

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So I apologize for having omitted that.

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My name's Michael Montur.

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I represent Ellen Bullock in this relatively old case.

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This case originated with a 2013 gender discrimination case.

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and retaliation complaint.

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And it ultimately resolved in 2015 with a contract or settlement of that case that included seven equitable remedies to be implemented in Ms.

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Bullock's workplace.

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And in fact, those seven equitable remedies were implemented in Ms.

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Bullock's workplace.

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And it also settled for $70,000 in compensatory damages.

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Now, what is odd here is that after the attorney for the government orally promised the $70,000... Mr. Monsoor?

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Yes, sir.

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Mr. Monsoor?

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Excuse me.

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This is Judge Shaw.

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Can you hear me?

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I can.

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Yes, I can.

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Yes.

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I have two questions.

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In looking at the materials before us, it appears to me that there's a factual dispute on two points.

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Number one, whether Ms.

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Lynch, the Army attorney, had authority to settle.

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And number two, whether in fact a settlement agreement was reached.

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And I say that based upon the materials that you cite

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in in your brief uh... and in contrast the materials uh... that the government sites in its brief the declaration materials that were submitted in the court of federal claims do we have a factual dispute on those points uh... i don't think though i mean i think that judge richardson who was the settling judge

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believed that Miss Lynch had authority.

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The government has come back after the fact and said that she didn't have authority, but I haven't seen any authority to say that she doesn't have authority, not to overuse the word.

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I suppose there could be a factual dispute in a formalistic sense if they say, no, she didn't.

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But I don't know how you send an attorney to a settlement conference without

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providing them with authority, and I don't know how an attorney says to a settling judge, my client will pay $70,000 without having that authority.

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And the currency case actually that I cite in my brief addresses this matter.

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If you're in front of an administrative law judge and you say, my client will pay $70,000, it is presumed that you have authority to do that.

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Yeah, but the Court of Federal Claims here originally said that there was a lack of authority and then reconsidered.

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And my understanding of the status of the thing after the reconsideration is that the recognition by the Court of Federal Claims that there was a fact issue on this question.

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Of course, the decision that was rendered saying any agreement was unenforceable because it was oral

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kind of mooted the necessity of resolving that fact issue.

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But isn't it the case that the Court of Federal Claims thought there was a fact issue about authority?

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Yeah, I think, I mean, when you frame it that way, I think it's, yeah, yes, there is a fact issue.

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I don't think it's a, I think it's a fact issue that my stuff wins, candidly.

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I suppose they have the ability to say that Attorney Lynch didn't have authority when she told the judge, my client and my employer will pay $70,000.

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Well, even if there was, assuming there was authority at the time, how do you get around that a month later the government says, no, we retreat, there is no deal?

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Because at that point, you cannot get out of a contract that has been completed.

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And the agreement was complete at that point.

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The important piece here is that the one through seven, all of the different workplace accommodations that Ms.

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Bullock requested as part of settlement were already being implemented after the first mediation in July.

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The government agreed to one through seven of her 10-point settlement demands and was implementing them.

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It wasn't just waiting for completion of the other three parts.

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It was actually performing on them.

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And when Judge Richardson confirmed settlement on the basis of Attorney Lynch's promise to pay $70,000,

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Jeff Elliott of Ms.

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Bullock's attorney at the time said, so this is Settlement, and Judge Richardson replied, yes, as to the points that were still in dispute, eight, nine, ten.

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Mr. Montzor, Mr. Montzor, excuse me, this is Judge Shawl again.

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We do have, though, these declarations in the Court of Federal Claims.

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Judge Richardson's declaration,

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uh... attorney lynch's declaration and i guess it's mister uh... mister shipley's declaration and they all state that no there wasn't a uh... settlement and i'd i'd knowledge it appears that the you can say that the richardson declaration contradicts some of the uh... uh... deposition testimony but where does that leave us i believe that without a summary judgment

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order.

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Frankly, I think that those things have to be assessed by a judge in a hearing or by a fact-finder in a hearing with live witnesses and cross-examination, and all of those things have to occur.

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Well then, should we then, in your view, should we send it back for that to be decided without ruling on the question of the effect of the two regulations, the Army regulation

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and the EEOC regulation?

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Well, yeah, and if I can address that, yes, I think that is, I mean, obviously you folks can do what you want, but I think that that is certainly a prudent path.

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Well, wait, you mean after we decide that an oral agreement is enforceable?

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Yes, and I think that the fact established that the oral agreement, that there was an oral agreement and that

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At least there's an issue of material fact as to whether there was an oral agreement.

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I understand you have Judge Richardson's declaration, which is contradicted in a way by her deposition testimony.

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And there is a muddle in there about whether Attorney Lynch had the... I think in the end, even Judge Firestone said it appears that she could have had and probably did have

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Now I'm paraphrasing, but she said she could have had authority.

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Why in the world?

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Wait a moment.

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We have two fact issues here which haven't been decided by the Court of Federal Claims.

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One, whether she had authority and two, whether there was an agreement.

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The Court of Federal Claims disposed of the case on another ground and that is that even if there was an agreement with authority, oral agreements are not enforceable.

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Are you suggesting that we should send this back without deciding that issue, the oral agreement issue?

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You could do that.

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I don't think, because I think ultimately the oral contract, I think the case law is clear that oral contracts are enforceable and the regulations are not statutes and the Winstar case says clearly

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that the government cannot avoid contractual liability by passing regulations.

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Do you want us to decide that issue, or do you not want us to decide that issue?

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Well, I think, candidly, that issue has already been decided, but I think Judge Firestone should get another shot at this case.

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I think there's a certain logical disconnect in the way that it proceeded through her

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I don't think you're understanding my question.

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You appealed here challenging Judge Firestone's ruling that oral agreements are not enforceable.

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Do you want us to decide that issue or not?

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Yes, I do.

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I thought so.

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Okay.

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I apologize for the confusion, Your Honor.

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Oral agreements are enforceable in the Court of Federal Claims.

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against the government under the Tucker Act.

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Mr. Montseur is Judge Schall again.

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We have two regulations here.

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We have an Army regulation and we have an EEOC regulation and Judge Firestone rested her decision on both of them.

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You spend most of your time in your briefing, I think, directing your attention to the Army regulation

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You don't think the Army could pull back on a deal that it had just because there was a regulation.

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But what about the EEOC regulation?

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This was the tribunal before which the parties were proceeding, and isn't that regulation entitled to some consideration?

[00:11:13] Speaker 05:
Well, it's interesting that you bring that up.

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The EEOC regulation says they will not enforce

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a contract that isn't in writing.

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That's what the Court of Federal Claims is for.

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In other words, we couldn't go to the – the EEOC says if it's not in writing – in essence, the EEOC's position is if it's not in writing, we're not going to enforce it.

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Yeah, but the regulation – wait, wait, wait.

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The regulation doesn't say that, right?

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No, the regulation doesn't say that.

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But that's what it appears that they're taking from the regulation.

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I don't think the EEOC regulation has any relevance if there's an oral contract with the Army.

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If I have an oral contract with the Army for the Army to pay me $70,000,

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in exchange for me withdrawing my EEO complaint, as well as all of these equitable replicates that the Army is implementing in my workplace, that's consideration, that's offer, that's acceptance, et cetera.

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And I then withdraw my EEO complaint, and the contract is performed on the contract.

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well mister mister let me ask you one question the regulation says any settlement reached shall be in writing and signed by both parties and she'll identify the claims resolved how do you get around that that's the uh... the eeoc rate well the eeoc for the eeoc judge anita richardson tried to get around tried to effectuate that and the army ball at that point i think the issue shifts

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to the Court of Federal Claims, which is why we went there instead of to the EEOC.

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Because at that point, we have an agreement and a contract with the US government, comes under the Tucker Act, and we go to get a writing, I suppose, in the form of an order from a judge in the Court of Federal Claims, which would then be enforceable elsewhere, even in the EEOC.

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If Judge Firestone finds that there's a contract, it doesn't matter if it's an EEOC settlement or any other contract with the United States government.

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An oral contract with the United States government is enforceable in the court of federal claims.

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That's why we went there.

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Once we get an order from a court of federal claims judge,

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that the contract exists and is enforceable, we can take it anywhere to the EEOC or to a district court in the federal circuit to get performance on that order if there's a problem.

[00:14:22] Speaker 01:
Right, any more questions at the moment?

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We'll save your rebuttal time.

[00:14:27] Speaker 05:
Thank you.

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Okay, let's hear from the government.

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Mr. Howe.

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May it please the court?

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The judgment should be affirmed because the trial court correctly determined.

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Mr. Howe, this is the state.

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So there's this statute which is not much discussed in the brief, which now I think appears at 31 USC 1501.

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And earlier iteration of that statute was addressed by the DC Circuit

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in the American Renaissance Lines case.

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And court held in that case that an oral agreement is not enforceable as a result of this statute.

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Judge Allegra in the court of federal claims has since given detailed reasons why that case was wrongly decided and why oral agreement with the statute are enforceable because the purpose of that statute is

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merely internal to the government about how it takes account of various obligations.

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Does the government contend that the statute that is 31 USC 1501 bars plural agreements?

[00:15:54] Speaker 00:
Your Honor, I missed the last part of your question.

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Does the government take the position that 31 USC 1501 bars plural agreements?

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No, Your Honor, we have not relied upon 31 USC 1501 in this case for the proposition that the regulations bar or rather require a written contract.

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We're relying upon the EEOC and ARMA regulations that we cited in our brief and that were discussed in Mr. Munsoor's argument.

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OK.

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But as I read those regulations, the EEOC regulation is just providing a framework as to how these cases ought to be run and how settlement agreements

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should be entered into.

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It doesn't say that oral agreements are unenforceable.

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And there are plenty of cases, both from the Supreme Court and our court, saying that housekeeping rules, time limits, and other things like that may be imposed, may be mandatory, but they don't affect the validity of the action that was taken.

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Why isn't this writing requirement just one of those housekeeping rules saying,

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to the agency AJA's and everybody else please put this in writing, but it doesn't make an oral agreement unenforceable.

[00:17:16] Speaker 00:
Your Honor, this court in the Tiberiusy decision held that a signed writing is not necessary in the absence of a statute requiring it.

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Here, those regulations do in fact require that writing.

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So it operates in two ways.

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It's not a statute.

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You just agreed it's not a statute.

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It is a regulation, rather than a test, if that's correct, Your Honor.

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OK.

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So why is the housekeeping regulation telling people who are negotiating these agreements to put them in writing, which is a perfectly reasonable housekeeping regulation, but it doesn't say that oral agreements are unenforceable?

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And we have held in Tberzi and other cases that oral agreements generally are enforceable.

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Your Honor, it operates in two ways, though I respectfully would disagree with the characterization of this regulation only as a housekeeping regulation.

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One is that it does act almost as another element to be satisfied to create a contract here.

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The other is it sheds light upon the absence of the other elements of the contract, whether or not there's been a meeting of the minds, whether or not there's been actual authority exercise.

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And the lack of writing here, in addition to failing to satisfy that extra element through the regulations,

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also suggest those other elements for contract formation have not been met here?

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Well, those other elements are not before us right now.

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The only question is whether the regulation bars oral agreements.

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And I'm not seeing that the regulation says that oral agreements are unenforceable.

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It doesn't say that on the face of it, right?

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Neither the EDFC regulation nor the Army regulation says that oral agreements are unenforceable.

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Your Honor, it's not a question of enforceability.

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It's more a question of a distance.

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Without a written agreement, there is no agreement here under the regulations, both the EEOC and the Army regulations.

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The Army regulations provide that the terms of settlement and time for instant completion will be set forth in a written agreement, and also that any settlement agreement that includes payment of compensatory damages must be in writing.

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Similarly, the EEOC regulation.

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Why does that make an agreement unenforceable?

[00:19:23] Speaker 04:
I'm not understanding that.

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Because we have these lines of cases that say that not every requirement makes an order or agreement unenforceable.

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Your Honor, it's not so much about enforceability.

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It's about no agreement being formed in the first place.

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Without this being satisfied, there was no agreement.

[00:19:47] Speaker 03:
Mr. Huff, is it Mr. Huff or Mr. Howe?

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Huff, thank you, Your Honor.

[00:19:53] Speaker 03:
Mr. Huff, yes.

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This is Judge Shaw here again.

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You've been discussing with Judge Dyke the regulations.

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Is there anything in the record as to the parties' awareness of these regulations during the settlement discussions?

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And I'm thinking here,

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Whether there's anything in the record about Mr. Elliott representing Ms.

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Bullock and Ms.

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Lynch representing the Army, do we have anything indicating their awareness and intent to operate under these regulations?

[00:20:33] Speaker 00:
There is, Your Honor.

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In earlier settlement negotiations around Christmas or December of 2013, the Army had prepared and circulated a written settlement agreement that the parties did not execute.

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Declaration testimony at pages 233 and 234 of the supplemental appendix, which explains that Ms.

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Lynch prepared that written settlement agreement.

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There's also a description at page 231 of the appendix.

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And then that actual earlier written but un-executed settlement agreement is also in the record at pages 245 to 247 of the supplemental appendix.

[00:21:07] Speaker 03:
So that's... So you're saying... So you're saying this supports...

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the proposition that the parties that were aware that they wouldn't have an agreement until there was a signed document.

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That is correct your honor.

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Now let me ask you one other question if I could please.

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You heard our discussion with Mr. Mansour and what is your view as to the relevance of the factual dispute here as to one, Ms.

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Lynch's authority and two,

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whether there was a settlement agreement at all, regardless of authority, should we decide this regulation issue that has been presented on appeal that Judge Dyke has been discussing, or given that we have this factual issue, should we not decide that issue and send it back for these fact questions to be decided?

[00:22:06] Speaker 00:
Your Honor, I'd say first of all, the issue about the writing should be decided because that was the basis of the court's decision below and of an independent reason that the case failed.

[00:22:16] Speaker 00:
But I would like to address the Lynch authority issue and the issue of settlement separately, if I may.

[00:22:22] Speaker 00:
As to Ms.

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Lynch's authority, the only argument that's been made throughout the case, while I point this, has been that Ms.

[00:22:28] Speaker 00:
Lynch had apparent authority.

[00:22:29] Speaker 00:
Sometimes the term actual authority is used, but it's talking about how Ms.

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Lynch held herself out.

[00:22:35] Speaker 00:
Well, that may be factually disputed.

[00:22:37] Speaker 00:
That's not the material issue of a fact.

[00:22:40] Speaker 00:
The material issue is whether Ms.

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Lynch had actual authority.

[00:22:43] Speaker 00:
Actual authority, of course, is required for a government contract, and it is undisputed that Ms.

[00:22:48] Speaker 00:
Lynch lacked the actual authority, which, of course, would be a legal determination.

[00:22:54] Speaker 04:
The Court of Federal Claims didn't agree with you on that.

[00:22:58] Speaker 04:
The Court of Federal Claims said there's a fact issue as to authority, right?

[00:23:04] Speaker 00:
Well, early on, Your Honor, at the pleading stage, the court found that there may be an issue of actual authority.

[00:23:10] Speaker 00:
It was not determined on summary judgment once declarations were submitted and once Ms.

[00:23:15] Speaker 00:
Bullock had the opportunity to take some depositions.

[00:23:19] Speaker 04:
Well, that's the question.

[00:23:20] Speaker 04:
That's an order from the Court of Parole Plaint saying there's a fact issue here, right?

[00:23:26] Speaker 00:
Your Honor, the order was not one based on summary judgment.

[00:23:30] Speaker 00:
I agree that the court did not make that factual, a factual determination as to actual authority.

[00:23:36] Speaker 00:
But the determination that the court made at the pleading stage, it was not once the evidence had come in, which demonstrates the absence of a genuine issue of material fact that there was, that Ms.

[00:23:45] Speaker 00:
Lynch did not have actual authority.

[00:23:50] Speaker 00:
The other question that the court raised was about whether a settlement existed at all.

[00:23:54] Speaker 00:
And as we've argued in the briefing, we do not believe there is a genuine issue of material fact about that either.

[00:24:00] Speaker 00:
As set forth in our briefing, in the pleadings, Ms.

[00:24:05] Speaker 00:
Bullock says that the parties only resolved the material issues and needed to finalize other terms.

[00:24:10] Speaker 00:
And the evidence we've set forth makes clear that the parties didn't agree upon all the terms.

[00:24:14] Speaker 00:
They did not agree upon all the terms.

[00:24:15] Speaker 03:
Well, you would agree, though, this Judge Schall here, Mr., you would agree, I think,

[00:24:20] Speaker 03:
If you put on one side of the table the material that Mr. Mansour relies on, namely the deposition material and some of the email exchanges that occurred contemporaneously, and if you put on the other side of the material, other side of the table, the declaration material that was prepared for the Court of Federal Claims, the Richardson Declaration,

[00:24:48] Speaker 03:
the Lynch Declaration and the Shipley Declaration, I really think there's a fact issue when you put those things together as to whether there was an agreement, leaving authority aside.

[00:25:04] Speaker 00:
Perfectly, Honor.

[00:25:04] Speaker 00:
We would disagree.

[00:25:05] Speaker 00:
And part of that is outlined in the briefing before the Court of Federal Claims and not before this Court, because the only issue Mr. Elliott or Ms.

[00:25:13] Speaker 00:
Bullock raised was the question of the writing requirement.

[00:25:18] Speaker 00:
We raised evidentiary challenges to the materials that Ms.

[00:25:21] Speaker 00:
Bullock relied upon.

[00:25:22] Speaker 00:
Now, the Court of Federal Claims did not decide those challenges.

[00:25:25] Speaker 00:
But as we argued below, neither Ms.

[00:25:29] Speaker 00:
Bullock nor Mr. Elliott's affidavits are based on their personal knowledge.

[00:25:32] Speaker 00:
And we had a number of objections to the deposition testimony that they cited as well.

[00:25:38] Speaker 03:
Well, yeah, fair enough.

[00:25:40] Speaker 03:
But just we, as the reviewing court, looking at the paper material before us,

[00:25:48] Speaker 03:
I don't see how we can come to any conclusion other than that based on these paper materials, there's a fact issue on whether there was a settlement.

[00:25:59] Speaker 00:
Your Honor, the good news for the court is that the court need not necessarily reach that issue.

[00:26:03] Speaker 00:
Ms.

[00:26:03] Speaker 00:
Bullock, and because of waiver, Ms.

[00:26:06] Speaker 00:
Bullock forfeited and failed to preserve the only issue she did raise with whether regulations like statutes may require contracts to be in writing.

[00:26:13] Speaker 00:
In addition, all the alternative grounds that we... Where was the waiver?

[00:26:17] Speaker 04:
What do you mean waiver?

[00:26:18] Speaker 04:
Waiver by what?

[00:26:21] Speaker 00:
By failure to present the argument.

[00:26:24] Speaker 04:
On appeal?

[00:26:27] Speaker 00:
Both below the trial court and on appeal.

[00:26:30] Speaker 04:
Why does that issue have to be raised on appeal?

[00:26:36] Speaker 04:
The only ground of decision

[00:26:38] Speaker 04:
is the unenforceability of oral contracts.

[00:26:42] Speaker 04:
That's the only issue that came up on appeal.

[00:26:44] Speaker 04:
That's the only issue that has to be briefed.

[00:26:48] Speaker 04:
Why does Bullock have to address some other issue that's not up on appeal?

[00:26:53] Speaker 00:
As to that question, Your Honor, because we raised the other arguments in our opposition brief, Ms.

[00:26:58] Speaker 00:
Bullock was obligated to address them in her reply brief.

[00:27:01] Speaker 00:
The leading case on that point is from the Seventh Circuit.

[00:27:07] Speaker 00:
It's a case called Hardy versus City Optical 39 F3rd 765.

[00:27:11] Speaker 00:
It explains that when an appellee advances on alternative ground for upholding the ruling by the district judge and the appellant does not respond in the reply brief or an argument, it weighs as a practical matter anyway.

[00:27:23] Speaker 00:
Any objections not obvious to the court to specific points urged by the appellee and several other focus, including the 10th and the 5th appear to have followed that proposition.

[00:27:33] Speaker 00:
But, Your Honor, I was speaking more directly to the waiver of the writing itself.

[00:27:39] Speaker 00:
Ms.

[00:27:39] Speaker 00:
Bullock did not raise that argument before the trial court until her motion for reconsideration.

[00:27:44] Speaker 00:
And therefore, she forfeited that issue before the trial court and also did not preserve that issue for appellate review.

[00:27:50] Speaker 00:
We cited several cases for that, but the Bluebonnet and Caldwell cases from the Federal Circuit established those propositions.

[00:27:57] Speaker 00:
Moreover, the Court of Federal Claims expressly held that Ms.

[00:28:01] Speaker 00:
Bullock had forfeited that regulations argument

[00:28:04] Speaker 00:
But Ms.

[00:28:04] Speaker 00:
Bullock did not challenge that determination of forfeiture in her opening brief.

[00:28:09] Speaker 00:
And by failing to challenge that forfeiture... Where is the decision about forfeiture?

[00:28:15] Speaker 00:
It's in the order denying Ms.

[00:28:17] Speaker 00:
Bullock's motion for reconsideration.

[00:28:22] Speaker 04:
Where do we find that?

[00:28:28] Speaker 00:
It would be in the addendum.

[00:28:33] Speaker 00:
Look at docket number 84 below.

[00:28:35] Speaker 03:
I'm not sure, Mr. Huff, that this was in the record, but what you're referring to is the November 8, 2019 ruling by Judge Firestone denying reconsideration, correct?

[00:29:00] Speaker 03:
That's correct.

[00:29:01] Speaker 03:
Thank you, Your Honor.

[00:29:02] Speaker 03:
Where did we find it?

[00:29:08] Speaker 03:
I don't think it, I could be wrong, but I don't think it was presented, was it Mr. Hoffman, any of the appendix documents, either the original appendix or in your appendix supplemental?

[00:29:23] Speaker 00:
I don't believe it appeared in our supplemental.

[00:29:25] Speaker 00:
I believe it was part of the addendum that Ms.

[00:29:28] Speaker 00:
Bullock filed.

[00:29:35] Speaker 01:
Before you sit down, I'm still troubled by one question.

[00:29:43] Speaker 01:
I'm interested in the government's

[00:29:45] Speaker 01:
position, let us just assume that we conclude either that we decide that an oral agreement is enforceable, or there was an oral agreement, or that it goes back to federal claims for that purpose.

[00:30:03] Speaker 01:
Does the government agree that on that premise, the purported withdrawal a month later would be ineffective?

[00:30:19] Speaker 00:
You're saying, Your Honor, if the court determined that a writing were not required, would the reported withdrawal be ineffective?

[00:30:26] Speaker 01:
If we assume that an agreement was reached in the course of the settlement, your record, your briefing says that a month later, the government wrote and said, we withdraw the agreement.

[00:30:43] Speaker 01:
Is the government's position understanding

[00:30:47] Speaker 01:
that if an agreement were indeed reached, it would not be withdrawn.

[00:30:54] Speaker 00:
Unless there are other reasons to do that, Your Honor, I would agree.

[00:30:57] Speaker 00:
Certainly a final contract would not be unilaterally withdrawn.

[00:31:00] Speaker 00:
Of course, we have argued that there was a material breach by Ms.

[00:31:03] Speaker 00:
Bullock of the agreement.

[00:31:06] Speaker 00:
If I may, with the court's permission, respond to the prior question about... Okay.

[00:31:10] Speaker 01:
Yes, please.

[00:31:12] Speaker 03:
Mr. Huff, the waiver issue, I think what you're referring to is the statement in the reconsideration decision that says, in her original motion in replying, this bullet failed to address the applicable army and EEOC regulations establishing the requirement for a valid EEOC settlement agreement.

[00:31:32] Speaker 03:
The government, its cross-motion for summary judgment, expressly raised the argument that these regulations precluded an enforceable

[00:31:40] Speaker 03:
oral settlement agreement, and this bullet could have addressed the argument in a reply brief but did not.

[00:31:45] Speaker 03:
That's what you're referring to, right?

[00:31:48] Speaker 00:
That was half the waiver argument, Your Honor.

[00:31:50] Speaker 00:
There are two aspects of it.

[00:31:51] Speaker 04:
The one was the failure to... That, what Judge Shull just read, doesn't hold that there was a waiver, right?

[00:31:59] Speaker 00:
That affected the waiver, but the Court of Federal Claims, and I don't believe it was in the Addendum.

[00:32:03] Speaker 00:
I do want to correct that statement.

[00:32:05] Speaker 00:
But it's document number 84 that November 8th, 2019, order to deny reconsideration.

[00:32:10] Speaker 00:
It did hold that there was a forfeiture.

[00:32:15] Speaker 04:
Where?

[00:32:15] Speaker 04:
I mean, the part that Judge Scholl just read didn't say there was a forfeiture.

[00:32:22] Speaker 03:
Is there any... I didn't see anything else, Mr. Huff.

[00:32:25] Speaker 03:
I was reading what I... the best I could find, but I didn't see anything else.

[00:32:29] Speaker 03:
Is there something else in there?

[00:32:32] Speaker 00:
I'm looking at page four, I believe it was, of that document number 84, the November 8, 2019 order.

[00:32:39] Speaker 00:
And it notes that in transitioning, it notes, moreover, besides being forfeited, Ms.

[00:32:44] Speaker 00:
Bullock's argument is without merit.

[00:32:49] Speaker 00:
Oh, I see.

[00:32:50] Speaker 00:
Yes.

[00:32:51] Speaker 00:
Yes, you're OK.

[00:32:53] Speaker 00:
I see it.

[00:32:54] Speaker 00:
And just before the court says, Ms.

[00:32:56] Speaker 00:
Bullock's contention on reconsiderations that these regulations cannot bar the enforcement of an oral settlement

[00:33:01] Speaker 00:
is therefore a new argument that should have been raised earlier and cannot serve as a basis for reconsideration now.

[00:33:11] Speaker 03:
So basically though you're saying to us we should, even though the Court of Federal Claims ruled on the matter of, you know, enforceability of an oral settlement agreement, we can't

[00:33:28] Speaker 03:
And that was the basis for the decision.

[00:33:30] Speaker 03:
We can't rule.

[00:33:32] Speaker 03:
We can't decide that because it was forfeited, right?

[00:33:36] Speaker 00:
Your honor, I believe it will be because it's forfeiture.

[00:33:38] Speaker 00:
I believe it'll be discretionary with this court, but certainly the court should not.

[00:33:42] Speaker 00:
The argument was forfeited and under longstanding federal circuit precedent, it will be appropriate to deem a waiver and not reach the merits.

[00:33:50] Speaker 00:
But it is discretionary.

[00:33:52] Speaker 00:
You would agree with us.

[00:33:54] Speaker 03:
I would.

[00:33:55] Speaker 03:
Yeah.

[00:33:57] Speaker 01:
Okay, any more questions for Mr. Huff?

[00:34:03] Speaker 01:
Okay, I ask silence.

[00:34:05] Speaker 01:
In that case, Mr. Moser, you have your rebuttal time.

[00:34:08] Speaker 05:
Thank you very much, and I want to thank the panel again for their time and attention to this.

[00:34:15] Speaker 05:
First of all, with regard to the waiver issue, ironically enough, Judge Firestone, in

[00:34:24] Speaker 05:
let in her order of July 11, 2018 said that because oral EEO settlements before the ALJ may be enforceable, the court will allow Ms.

[00:34:36] Speaker 05:
Palook to conduct limited discovery regarding Ms.

[00:34:40] Speaker 05:
Lynch's authorization.

[00:34:41] Speaker 05:
And that's in my motion before you, in my brief before you.

[00:34:46] Speaker 05:
In other words, this issue of oral

[00:34:51] Speaker 05:
of the enforceability of an oral argument was, in my opinion, resolved by Judge Firestone.

[00:34:58] Speaker 05:
I didn't see the need to respond to it.

[00:35:01] Speaker 05:
Perhaps I should have.

[00:35:04] Speaker 05:
Not even perhaps.

[00:35:05] Speaker 05:
Obviously, I should have, given what happened.

[00:35:08] Speaker 05:
But I did raise it in my motion for reconsideration.

[00:35:10] Speaker 05:
In other words, in looking at the procedural history of this case, that issue was front and center in front of the court

[00:35:19] Speaker 05:
in the motion to dismiss that the government filed at the outset of the case before the Court of Federal Acclaims and the matter survived the motion.

[00:35:30] Speaker 04:
I don't know how that incorporates the doctrine of waiver, but even if it did... So are you saying originally in the motion to dismiss the government argued that oral agreements were not enforceable and you responded to that?

[00:35:44] Speaker 05:
Yes.

[00:35:47] Speaker 05:
Yes, and that's why you see that July 11, 2018 order, where the judge says, because, Judge Firestone says, because oral EEO settlements before ALJs may be enforceable.

[00:36:04] Speaker 05:
That means that that issue was front and center for a period of time in this case.

[00:36:09] Speaker 05:
And the doctrine of waiver is therefore overly formulaic, hyper-technical,

[00:36:17] Speaker 05:
And exactly the type of concept that our courts have habitually said should not be applied.

[00:36:28] Speaker 05:
And furthermore, and ironically enough, the doctrine of waiver only becomes relevant if there's an enforceable contract.

[00:36:40] Speaker 05:
And I think that's why I think the Court of Federal Claims got it backwards.

[00:36:46] Speaker 05:
when they said, well, there's, you know, you didn't address it, so it's waived.

[00:36:50] Speaker 05:
I think that's hyper-technical formula over the formula and putting form way before substance.

[00:36:57] Speaker 05:
As far as some of the other points that were raised here, if I can, one of the things that the attorney for the government said was that Ms.

[00:37:07] Speaker 05:
Bullock made an affidavit without any personal knowledge.

[00:37:09] Speaker 05:
She was working at the government.

[00:37:12] Speaker 05:
She was talking exactly about what she knew.

[00:37:15] Speaker 05:
when she said that these particular pieces of the agreement were implemented and were in effect awaiting completion of the compensatory piece, which Attorney Lynch completed in August when she told an administrative law judge the government will pay $70,000, therefore settling the case.

[00:37:38] Speaker 01:
Please continue your thought.

[00:37:40] Speaker 05:
Thank you very much.

[00:37:42] Speaker 05:
I think one of the things that rings

[00:37:45] Speaker 05:
clear throughout all the cases that you look at is that a regulation of the federal government agency cannot impair a fundamental right of an individual in a contract with the government.

[00:37:59] Speaker 05:
That is win star and that is every case that is looked at this matter at this issue back as far as you can look.

[00:38:08] Speaker 05:
If you enter into a contract with the government in the absence of a statute

[00:38:14] Speaker 05:
that says that agreement has to be in writing.

[00:38:18] Speaker 05:
That oral agreement is enforceable.

[00:38:21] Speaker 05:
And the fact that the federal government has a housekeeping regulation that might affect their internal processes does not impair the right of the individual who entered into the contract with the government to receive the benefit of that contract.

[00:38:37] Speaker 05:
And that is exactly what happened here.

[00:38:40] Speaker 05:
The federal government... You would agree.

[00:38:41] Speaker 03:
You would agree, Mr. Montseur, that there is the qualification in the cases that says the contract is not, the oral agreement is not enforceable if the record shows that the parties did not intend it to be enforceable until it's submitted to writing.

[00:39:00] Speaker 03:
And that was what we said in Tberzi referring to Mahbub, I think.

[00:39:04] Speaker 05:
That's absolutely true.

[00:39:06] Speaker 05:
And what you have to look at in that respect, Your Honor, is the fact that the federal government was implementing the equitable remedies of the settlement before Attorney Lynch made the final piece complete by offering the $70,000 to resolve the compensatory issue.

[00:39:26] Speaker 05:
If it had to be in writing, Your Honor, all one through seven of those would have been reduced to writing and notarized, et cetera, witnessed.

[00:39:33] Speaker 05:
They weren't.

[00:39:34] Speaker 05:
The federal government was performing on an oral contract partially before the $70,000 offer.

[00:39:41] Speaker 01:
Okay.

[00:39:45] Speaker 01:
Any more questions for Mr. Mansour?

[00:39:48] Speaker 01:
Okay.

[00:39:51] Speaker 01:
Hearing none, we will take the case under submission.

[00:39:54] Speaker 01:
Thanks to both counsel.

[00:39:56] Speaker 05:
Thank you very much.