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We have five cases on the calendar this morning.

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One from the Veterans Court, one from the District Court, one from the Trade Court, one from the PTAB, and one from the Claims Court.

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We truly are a diverse court.

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The Claims Court case is being submitted only on the briefs and won't be argued.

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First case,

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is Marcus Colacelli versus the Department of Veterans Affairs 2020-2048, Mr. Law.

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Morning, Your Honors.

[00:00:52] Speaker 00:
Morning.

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Counsel, may I please report my name is Brian Lawler.

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I represent the petitioner in this matter, Marcus Colicelli.

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Mr. Colicelli at the Merit System Protection Board was denied a request for 22 days of additional paid military leave for the calendar years 2016, 2017, and 2018.

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Administrative Judge Hurtwig indicated in his initial decision he would have granted Mr. Colacelli the relief requested had he timely notified the Veterans Affairs of his request.

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At the time, Administrative Judge Hurtwig did not have what we now know to be Mr. Colacelli's request, the EMAX.

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They were in the possession of the VA.

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were not produced, inadvertently, however, no one suggesting that it was nefarious.

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But he certainly knew what he had done or hadn't done.

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And he didn't argue that he made the request during active duty, correct?

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He did not make that argument.

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And that's the basis upon which the board decided the case.

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That's correct, Your Honor.

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And so why isn't that the end of it?

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I'm sorry, Your Honor.

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Why isn't that the end of it?

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Well, we now know that the evidence, the emails in which he did make the requests do exist.

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So had Judge Hortwig said you didn't timely make these requests for the additional leave,

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and there was no corroborating evidence, we would not be here.

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But we're here because there is that evidence.

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Those emails do exist.

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Mr. Collicelli did timely make the requests.

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That evidence simply wasn't a part of the agency file on which we or the judge could make, on which we could assert our argument, and on which Administrator Judge Hurtwig could base his decision.

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Why didn't he mention those emails?

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Because, Your Honor, he didn't know that they

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You know, in the hundreds and hundreds of emails, he did not know that they were missing from the agency file until Administrator Judge Hurtwig issued his initial decision.

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Once he read the basis for the decision, Mr. Colacelli then he looked for them and said, yes, he had the two that clearly showed he made a request.

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And then snippets of a third email that seemed to be a response from the VA to him

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that he believes was also a request.

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And I think that was 2018.

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But he was a lawyer.

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He was a lawyer.

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And he should know legal procedure and the necessity of making the proper argument in the proper time.

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And he was represented by counsel, right?

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Yes, sir.

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But OK, there is a basis for the board to reopen.

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Section 120118, right?

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That is true, Your Honor.

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It is.

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And we would submit that that certainly is an option we have if this Court does not reverse and remand for Judge Hortwig to issue that decision again based on now the full amount of evidence we have.

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And I would submit to Your Honor that

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5 USC 7703C allows this court to do just that because Judge Hurkley's decision was not based on a rule or regulation having been followed.

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And we would submit that that rule was 5 CFR 1201.25, which are the board's rules.

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and the agency file, specifically what the agency needs to produce.

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And it's the agency's onus to produce those, to proactively produce those.

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Because neither party proposes discovery requests in this case.

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And that's fairly typical for the cases that we have in the MSPB, because the agency has an affirmative duty to provide the agency file.

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It doesn't really make sense to do request reproduction when all the documents are supposed to be provided affirmatively by the agency.

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He asked the AJ to reopen.

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Is that right?

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And the AJ said, I can't do it.

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It's got to be the board.

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That's correct, Your Honor.

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He did do that.

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And at the time when this was done, not only could AJ Hurtwood not reopen of his own accord, there's no board.

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There was not even not a quorum.

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There were no members of the full board at the time.

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I think two have been nominated.

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I don't know if they've been confirmed.

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But there wasn't.

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And the estimate that we've gotten from several sources is we're looking at a three to a five year backlog when the board finally does get quorum.

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So we didn't think we were prohibited from letting the initial decision become final and appealing timely appealing to this court.

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And it certainly seems more to Mr. Colicelli's benefit not to have to wait whatever period of time

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will be that backlog at the board.

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So your argument is that even though he didn't raise the issue before the board, the board should have had the evidence that he didn't produce.

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That the entity didn't produce, yes, Your Honor.

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That's exactly right.

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Oh, that he didn't produce.

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that's that is true but again i would like the court to look at who's usually when one appeals one of the obligation to produce what we have now their appeal i'm sorry i'm going to cut you off they are now included in the appendix uh... i think it's pages two twelve two sixteen those those emails that show you he did look excuse me he did request the uh...

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the leave, timely request the leave, too.

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And that's also part of the issue is, according to the statute, you have to request the leave and use the additional paid leave while you're on that period of active service.

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Clearly, an administrative judge in this court could go back and rectify that.

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But if the service member himself or herself has to do it while they're on that period of leave, which Mr. Cole and Jelly did,

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If we find against you, do you plan on filing another motion to reopen?

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Is that kind of the next step?

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I'm sorry.

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Did Your Honor say if the court rules against us?

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Yes.

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We absolutely will.

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We know that that's an option.

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But again, based on the status of quorum at the board, we don't know how long that would take.

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No one's suggesting that's not an option in the agency's briefs.

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It is correct.

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That certainly is something we can do.

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The AJA denied the request to reopen.

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Yes, sir.

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Because this appeal is pending.

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So as the agency points out, the shell game, if you will, would be to have dismissed this appeal.

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So that's a jurisdictional issue.

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That's not a decision on the merits holding that the AJA could not reopen it aside from the fact that the issue was on appeal here.

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I think that's right, but that's also not the basis for our appeal.

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That is something we could do.

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Again, I come back to if this court denies our appeal.

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denies our petition, and we go back.

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We will ask the board to reopen, but then it becomes, how long is that going to take?

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At what point does that get heard?

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Section 118 suggests that the petition to reopen should be close in time.

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That's not really defined, but close in time to the initial decision.

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Obviously, we've had this appeal pending.

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I suppose once we read, if we do that, if this court does not agree with us, and if we do that, I don't know how long that's going to take.

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And again, that's the premise for why we selected this avenue, not another petitionerial.

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Unless your honors have any further questions, I don't have anything more.

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We will save you time, Counselor.

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Thank you, John.

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Mr. Smith.

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He's sort of in a bind, isn't he, because there's no boy?

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Your Honor, I think it's a bind of his own creation, unfortunately.

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Mr. Colicelli was in possession of these emails.

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Frankly, he was in position with these emails and maybe would not have had to go to the board to reopen the case had they been adequately produced.

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Further, I understand that three nominations are currently pending confirmation, having passed committee.

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This isn't an issue, as we've seen in other MSPB appeals, where we might be waiting years and years and years, and also we have issues of

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improper removal from a position.

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This is seeking back pay.

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Interest would, in fact, be provided should Mr. Colacelli prevail below.

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Are you saying this is a problem in zone making?

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There is that concept of presumption of regularity in the activity of the government.

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which almost always is used against the petitioners.

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Why shouldn't he have been able to rely on the resumption of regularity and the government doing its job in putting those documents into the record?

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Your Honor, I think the question of whether these documents should have been produced actually underscores the fact that this should be sent down for consideration in the first instance by a fact finder.

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First of all, I think there's a question of whether they support the argument that Mr. Colicelli would use them to make.

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There's also the issue of that these emails, at least several of them, appear to have been sent from Mr. Colicelli's Gmail account, and therefore may not have been part of the agency record that was required to be produced in this case.

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Again, these are difficult issues and, frankly, a bit of a messy record below.

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And I think that whether

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One, whether this would be an exceptional case that requires reopening is a question for the fact finder.

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Two, whether there was an affirmative duty on the government to produce these emails as part of the agency record.

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And three, whether in fact these support Mr. Colicelli's argument, all are important questions for the fact finder to address in the first issue.

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So are you suggesting that you wouldn't object to vacating this ruling and sending it back down for reconsideration?

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Your Honor, I think the more proper approach would be to affirm the decision and allow Mr. Colacelli to proceed as to reopen because there is not really a argument here that this was improperly decided on the law or not supported by substantial evidence.

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That being said, I also think another alternative which was not pursued by either party in the briefing would be to stay the current appeal.

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And then consider a motion for reopening below.

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I believe that has been prescribed by this court previously.

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I have sites to that effect if you prefer.

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And in the event that the motion for reopening is eventually granted, the parties could immediately let this court know, and we could proceed on remand.

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in the event that the motion to reopen was denied, then this court could issue an affirmance and end this matter.

[00:12:18] Speaker 01:
Well, that would take years.

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Excuse me, Your Honor?

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That would take years.

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Unfortunately, Your Honor, the timing is not ideal.

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And Mr. Colacelli will certainly may have to wait before the board.

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I do understand that certain nominees have a procedure to fast track some of these matters.

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I also understand that this court has, at least in other cases,

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directed these matters to go directly to the administrative judge rather than the board on a remand.

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I do not, and I take no position as to whether that would be appropriate here.

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I believe in those cases often we're talking about purely administrative and ministerial matters.

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I do not think that is the case here, but that would also be an option for your honors to consider.

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That being said, I think the cleanest issue is to just simply affirm this decision

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The issues raised by Mr. Colicelli were not raised before the board or properly before this court.

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There is no ruling on the motion to reopen for this court to consider, and it was not on appeal here.

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And then Mr. Colicelli could certainly pursue his motion to reopen after this court affirms the current decision.

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What would be the basis for the stay?

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You mentioned that as an alternative.

[00:13:31] Speaker 03:
Your Honor, I believe in the cases that I was looking at, and I would draw Your Honor's attention to Kawa versus the United States, which is 2009-5075.

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In an unreported order, the petitioners sought

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into the appeal pending a 60B motion, which is somewhat analogous to a motion to reopen before the MSPB.

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Both require extraordinary circumstances.

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Both are available for the introduction of new evidence.

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The government did not oppose.

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We would not oppose a stay in this case, provided that the court was willing to entertain that possibility.

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And then if Mr. Colacelli's motions reopen were denied, the decision below would be affirmed.

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What would be the benefit to Mr. Colacelli

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in this day.

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Either way, he has the option to reopen.

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I agree with your honor.

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I don't necessarily think there is a benefit.

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I just think that is a bit cleaner procedurally than to issue a remand, as Mr. Collicelli proposes, on an issue that is not properly before the court and hasn't been preserved below.

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I do not necessarily think that is procedurally proper.

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So I am proposing an alternative.

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But again, the government, in its brief, and I before you today, believe the cleanest and simplest issue here is to simply affirm the decision and have Mr. Colacelli proceed to file the motion to reopen, as counsel has indicated he would today.

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And I don't believe there's anything stopping him from doing so.

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Because the board and the person of the AJ made no error of law or fact, in your view, in the government's view.

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Precisely.

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And I believe, frankly, I do not believe that has been alleged below.

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I understand that Mr. Calicelli relies on the 7703B argument that the decision was not made after proper procedures.

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I'm not sure that is an effective argument, given that there's no argument that the judge weighed the evidence that was before him.

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The evidence that's urged by Mr. Calicelli today was not before him and applied the law correctly.

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Under the evidence that was provided I believe that is in proper procedure and that frankly there are other procedural avenues to argue that Evidence should have been considered namely a motion to reopen Unless your owners have any further questions, I will see the remainder of my time Thank You counsel, mr. Lola has some rebuttal time

[00:16:13] Speaker 02:
Thank you, Your Honors.

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I think when we get back to the issue, the main issue, in fact, the sole issue is, as Your Honor pointed out correctly, the duty to produce the evidence in these cases is incumbent on the agency.

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That's an affirmative duty.

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Is that argued and decided below?

[00:16:37] Speaker 02:
No, Your Honor, it wasn't, because again, this is where we get circular.

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We didn't know that the emails weren't produced until after the initial decision on which Judge Hurtwig said, you didn't timely request the leave.

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We find out that he did, and that those emails, which were sent from Mr. Colagelli's Gmail, but they were sent to va.gov domains.

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So the agency simply had to do a more thorough look than it did to produce these documents, and it did not.

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That's where we get back to.

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We're not suggesting that Judge Hurtwig made a mistake in his ruling, because he didn't have the benefit of all the evidence below.

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We're suggesting that the remand, the reversal, the remand directly to Judge Hurtwig, now with the benefit of having these and ostensibly other emails that show Mr. Colacelli did in fact request the timely request the leave, Judge Hurtwig said, had he timely requested the leave, I would have granted the relief, specifically the 22 days of additional paid leave for those three calendar years.

[00:17:37] Speaker 02:
Frankly, it seems rather simple to do that, invite the court to reverse, remand directly to Judge Hurtwig.

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We then put those emails in front of him.

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My sense is it takes him about a day or two to review and rewrite that initial decision, because he clearly indicated how he would have ruled had he

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the benefit of the evidence that Mr. Colacelli timely requested leave, we now know he did.

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And that's something we just simply can't get away from.

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And the agency can't, in whatever procedural posture the agency wishes to frame this, it still can't get away from the issue that those emails do show that Mr. Colacelli.

[00:18:12] Speaker 00:
What is your view on the stay possibility that was raised by?

[00:18:15] Speaker 02:
It's the first I've heard of it.

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I'm generally amenable to creative solutions.

[00:18:19] Speaker 02:
But like Your Honor indicated, what benefit would the stay

[00:18:24] Speaker 02:
Bring us because then we're still down Assuming the board would reopen and they didn't because this appeals pending.

[00:18:32] Speaker 02:
So if your honors were to write an order that said We're stayed

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But you can entertain a reopening.

[00:18:40] Speaker 02:
I suppose that would be possible.

[00:18:42] Speaker 02:
That's not something I would argue against.

[00:18:44] Speaker 02:
But I do get back to, OK, but then how long is this going to take?

[00:18:48] Speaker 02:
So if we have three nominees, when they'll be confirmed, and then how do they start getting through the backlog?

[00:18:53] Speaker 02:
I don't know that we would get any sort of preference to go to the front of the line and have this case reopened.

[00:18:58] Speaker 02:
Maybe.

[00:18:59] Speaker 02:
I just don't know.

[00:19:00] Speaker 00:
But we have to decide a case on the law, the facts, and the standard of review

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not taking into consideration the political aspects of appointees.

[00:19:10] Speaker 02:
I understand that, Your Honor.

[00:19:12] Speaker 02:
And again, I think our reliance on 7703 and that the opinion was rendered, the initial decision was rendered without a rule of regulation having been followed.

[00:19:24] Speaker 02:
Not Administrative Judge Hurtwick not following the rule of regulation, but the agency not doing so in compliance with the borders.

[00:19:31] Speaker 02:
And as Your Honor correctly pointed out, that is their duty.

[00:19:34] Speaker 02:
And I think Mr. Folicelli has

[00:19:37] Speaker 02:
certainly has the right to rely on, as Gerardo pointed out, the government to do its job, which it did not do in this case, to his detriment.

[00:19:44] Speaker 02:
We know he's going to be entitled to that leave at some point.

[00:19:47] Speaker 02:
It's whether, Your Honors, reverse and remand to judge whether we can do it, or we do a petition to reopen, which we think would be granted, given these are unusual circumstances, right?

[00:19:57] Speaker 02:
We're up on an appeal after required evidence.

[00:20:00] Speaker 02:
I think that would be granted.

[00:20:04] Speaker 02:
Thank you, Your Honors.

[00:20:05] Speaker 00:
Thank you, First Counsel.

[00:20:07] Speaker 00:
We'll take the case on a submission.