[00:00:00] Speaker 00:
and 64, Connor against Department of Veterans Affairs.

[00:00:04] Speaker 00:
Mr. Kirkpatrick.

[00:00:06] Speaker 03:
Thank you, Your Honor.

[00:00:07] Speaker 03:
I appreciate it.

[00:00:08] Speaker 03:
I know we're the last case of the day, and it's before lunch.

[00:00:11] Speaker 03:
But Joel Kirkpatrick on behalf of Stephen Connor, the appellant in this case, and may it please the court.

[00:00:18] Speaker 03:
We're here, Your Honors, and I think the court has seen a shift as it considers the section, I'm sorry,

[00:00:28] Speaker 03:
statute 714, discipline cases for the federal government.

[00:00:32] Speaker 03:
And I know this court, especially Judge Newman, I know you participated in some recent cases, the Brenner case and the Harrington case.

[00:00:39] Speaker 03:
And I know Judge Dyke has also participated in the Harrington cases.

[00:00:43] Speaker 03:
It really leads us to questions of how the courts, whether it be the merit board, whether the agency itself, how they handle discipline cases and how they ensure that a client gets their due process met.

[00:00:55] Speaker 03:
In this case, that did not happen.

[00:00:58] Speaker 03:
What we're here to talk about is reasonableness of penalty and whether or not the decision was arbitrary or not.

[00:01:04] Speaker 03:
I think what's really interesting is I see these cases, as I litigate these cases with the VA, is the agency has taken a position from the beginning that any kind of Douglas analysis has somehow been extinguished from Statute 714, which I don't see that anywhere.

[00:01:23] Speaker 03:
that we see that Douglas or that the 714 has done.

[00:01:27] Speaker 03:
It's done three things.

[00:01:28] Speaker 03:
It's made a quicker response.

[00:01:30] Speaker 03:
Time's cut down the time to respond.

[00:01:33] Speaker 03:
It says that the AJ herself or himself at hearing cannot mitigate a penalty even if there's dismissed cases.

[00:01:41] Speaker 03:
And the standard is no longer preponderable of substantial evidence.

[00:01:44] Speaker 03:
That's really all we have here.

[00:01:46] Speaker 02:
And you're not challenging the substantial evidence standard.

[00:01:51] Speaker 03:
No, I'm not.

[00:01:52] Speaker 03:
I've talked to many judges at the board, and then I'm trying to figure out what exactly it is.

[00:01:57] Speaker 03:
And some judges have also asked that question.

[00:02:01] Speaker 03:
But that's not really what we're here to challenge.

[00:02:04] Speaker 03:
I think what's important to understand is how this case came down.

[00:02:08] Speaker 03:
You had one charge with 27 specifications.

[00:02:11] Speaker 03:
It's clear from the record.

[00:02:12] Speaker 03:
It's clear from our brief.

[00:02:14] Speaker 03:
And the judge in this case dismissed 26 of those 27 specifications, 97% of the case.

[00:02:20] Speaker 03:
Now, we certainly know that if there's a charge, and with how many specifications there could be, only one specification gets sustained, then the charge gets sustained.

[00:02:32] Speaker 03:
The issue really comes down to is how the agency itself, in light of this court's decision, starting with Sayers in early 2020 and building on cases such as Harrington and Brenner, how the court says, no, we're not just going to take a rubber-stamped decision.

[00:02:50] Speaker 03:
We're not going to take a rubber stamp.

[00:02:52] Speaker 03:
Yes?

[00:02:53] Speaker 01:
Council, we don't necessarily have to have a global approach to dealing with 714 here.

[00:03:00] Speaker 01:
We're discussing a particular case.

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

[00:03:03] Speaker 01:
And the A.J.

[00:03:05] Speaker 01:
determined that Douglas factors were considered.

[00:03:11] Speaker 01:
And especially since 26 out of 27 charges were not sustained, that supports the idea

[00:03:20] Speaker 01:
that there wasn't just an arbitrary determination here, that there was serious consideration to the penalty.

[00:03:31] Speaker 03:
Yeah, I appreciate that.

[00:03:32] Speaker 03:
I understand.

[00:03:33] Speaker 03:
I think our argument is that it's come through in our brief.

[00:03:37] Speaker 03:
And what happened at the hearing was, did the agency, were they reasonable in the first place with their decision to fire my client?

[00:03:45] Speaker 03:
Was the agency reasonable or was it arbitrary?

[00:03:48] Speaker 03:
And what we did was, and I know we bored you in our brief with some of the issues with the discovery, but it's important to understand the agency never considered any other cases on how they would handle this.

[00:03:59] Speaker 03:
And this assigned official himself had a case very similar where it was a five-day suspension.

[00:04:05] Speaker 03:
How can the agency argue that it's reasonable when they have something similar?

[00:04:08] Speaker 03:
In that case, he testified in hearing it, Appendix 846,

[00:04:13] Speaker 03:
This case, Ms.

[00:04:14] Speaker 03:
Gillis, had a five-day suspension where the agency determined that there was patients at risk for four years.

[00:04:21] Speaker 02:
Is it fair to say that the heart of your argument is that the AJ didn't consider the comparator factor properly?

[00:04:31] Speaker 03:
My heart of my argument, Judge, really goes to the fact that the agency themselves never considered what would be a reasonable penalty before.

[00:04:40] Speaker 03:
they fired my client.

[00:04:41] Speaker 03:
I say it's the pre-removal decision and then what happened afterwards.

[00:04:46] Speaker 02:
AJ found that the deciding official had considered most of the Douglas factors and it seems to me the only one you're saying that wasn't considered is the comparator factor.

[00:04:57] Speaker 02:
Am I correct about that?

[00:04:59] Speaker 03:
Well, we dispute that and we put in the appendix that their discovery responses in the case.

[00:05:05] Speaker 03:
They initially said we don't have to consider anything.

[00:05:07] Speaker 03:
As long as we believe that if our client committed this charge, that if I go through it and I find it's almost an arbitrary decision, then I can get rid of them.

[00:05:21] Speaker 03:
And we put that in there, and it starts at the appendix at page 241.

[00:05:26] Speaker 03:
It goes to the list how they maintained it.

[00:05:29] Speaker 03:
They didn't have to review any Douglas Factors.

[00:05:31] Speaker 02:
And I know we put in there that seems to be

[00:05:35] Speaker 02:
credibility argument that when they said they considered the Douglas Factors, they shouldn't be believed because they said they didn't have to consider the Douglas Factors, right?

[00:05:46] Speaker 03:
Well, Judge, I would agree.

[00:05:48] Speaker 03:
That's why we stuck in what the documents show, not what somebody says or whether, unbelievable, during my testimony, what the documents actually showed at the time when they said, we didn't review that.

[00:06:00] Speaker 03:
It says, Appendix 253, we didn't consider any other cases.

[00:06:05] Speaker 03:
We're not required to.

[00:06:06] Speaker 03:
We didn't even do that in this case.

[00:06:08] Speaker 03:
And then after the motion to compel, and the reason we put that in there for you, judges to show that there was a shift.

[00:06:14] Speaker 03:
Now, yes, I understand you're not here to consider credibility, but what we're showing you as the documents is specifically the issue of what this court is now undertaking to say, wait a second, the agency can't run roughshod in 714.

[00:06:27] Speaker 03:
And I appreciate Judge Newman saying that this is not some global approach.

[00:06:32] Speaker 03:
if that was Judge Newman that said that, to each case, it's a specific case.

[00:06:37] Speaker 03:
But when you have a situation where the design official specifically stated, I didn't consider any previous discipline, and then he has his own case decided essentially at the same time that looked really similar, then that's a problem.

[00:06:55] Speaker 02:
Suppose the A.J.

[00:06:58] Speaker 02:
is correct.

[00:06:59] Speaker 02:
that as a factual matter, the deciding official here did consider comparator.

[00:07:07] Speaker 02:
Does that sink your case?

[00:07:09] Speaker 03:
Well, if the AJ, well, let me term it this way.

[00:07:16] Speaker 03:
The issue that was brought up at here, and I know that the hearing transcripts there, and obviously you're not going to read all of it, but the point is, if SETI considered the case, there has to be

[00:07:28] Speaker 03:
an objective standard to determine, because to answer your question, Judge, in normal Chapter 75 cases, and this is all I do, I do federal discipline cases, is that the comparator cases definitely show, even after deciding to say, well, I considered this, and I didn't think it was the same, but I've had AJ say, wait a second, I can read these cases, and they are the same or even more egregious than what the client is and mitigate on that standard.

[00:07:56] Speaker 03:
So to answer your question,

[00:07:57] Speaker 03:
I don't necessarily think it does think our case because of the objective facts in the case with the comparator cases and the testimony of the deciding official about harm.

[00:08:08] Speaker 03:
How can this deciding official, and I know the agency argues that I'm trying to reweigh the evidence.

[00:08:14] Speaker 03:
I'm not.

[00:08:15] Speaker 03:
What I'm seeing is that there's such a narrow approach in these 714 cases.

[00:08:22] Speaker 03:
Obviously, as counsel to this, I'm happy to see the court open up with sayers and other things that we're not just going to rubber stamp these things, because the discretion's been taken away from these AJs.

[00:08:33] Speaker 03:
And so I don't think it syncs our case, and I'm not trying to be cute with the court, because I think there has to be an objective review, just like this court has to consider the entire factors, the entire case, the entire record,

[00:08:52] Speaker 02:
On the comparator factor, if the deciding official did consider comparable cases, what's the error?

[00:09:05] Speaker 02:
Wait, wait, wait.

[00:09:08] Speaker 02:
The comparison shows that he was treating similarly situated people differently.

[00:09:17] Speaker 02:
Is that the argument you're making?

[00:09:19] Speaker 03:
It is, but it goes even deeper if you'll indulge me, Your Honor.

[00:09:24] Speaker 03:
The point is, this is the first time that this deciding official even talked about comparator cases that we were able to elicit on discovery that they had to give.

[00:09:34] Speaker 03:
They said they never looked.

[00:09:36] Speaker 03:
The records clear at appendix 253 and 259-260 that he never even reviewed any comparator cases.

[00:09:44] Speaker 03:
So now here we are after the removal.

[00:09:47] Speaker 03:
After, at hearing, we're showing him, he says, well, yeah, they're not the same.

[00:09:51] Speaker 03:
But he never had a chance or never did review those cases when he was considering the discipline for my client.

[00:10:00] Speaker 03:
And, you know, as this court stated in Brunner, a decision is arbitrary and capricious where the agency fails to articulate a rational connection between the facts found and the choice made.

[00:10:10] Speaker 03:
The choice was made without reviewing cases or without doing any kind of

[00:10:15] Speaker 03:
Douglas analysis that I think this court is starting to undertake in its sayers decision and progeny that's come from this is that we just can't have agencies not being able to articulate reasonableness of penalty and they haven't done that.

[00:10:34] Speaker 02:
So is your argument that if the decision itself doesn't review the Douglas factors in writing that that's not sufficient?

[00:10:45] Speaker 02:
that you can't have a deciding official come in later and say, well, I didn't document it in the written decision, but I considered these factors.

[00:10:54] Speaker 02:
You're saying that's not enough?

[00:10:56] Speaker 03:
Well, but if you look at his decision letter, which is at 48 of the Joint Appendix, there's not one record in there about him considering any other discipline cases.

[00:11:06] Speaker 03:
Or I found that it's not there.

[00:11:12] Speaker 02:
You're saying that it has to be in the written decision itself, and not just in the mind of the deciding official.

[00:11:19] Speaker 03:
Well, if the deciding official doesn't communicate that, how are we going to handle that?

[00:11:23] Speaker 03:
But I see my time's probably up, and I will reserve on rebuttal, if I can.

[00:11:28] Speaker 00:
OK.

[00:11:29] Speaker 00:
Judge Dike, do you want to pursue this point?

[00:11:32] Speaker 02:
No.

[00:11:33] Speaker 02:
Thank you.

[00:11:34] Speaker 00:
OK.

[00:11:35] Speaker 00:
All right.

[00:11:35] Speaker 00:
Then we'll save you rebuttal time.

[00:11:37] Speaker 00:
And let's hear from the other side.

[00:11:39] Speaker 00:
Ms.

[00:11:39] Speaker 00:
Vomenkova.

[00:11:43] Speaker 04:
Good morning, Your Honors.

[00:11:46] Speaker 04:
May it please the court.

[00:11:48] Speaker 04:
This case raises two questions on appeal.

[00:11:52] Speaker 02:
One, the question of... Could we talk a bit about that last issue?

[00:11:57] Speaker 02:
I mean, here we have a situation in which the deciding official says ultimately that he reviewed the Douglas Factors, but it's not in the decision itself.

[00:12:07] Speaker 02:
Is that itself error, not the decision?

[00:12:11] Speaker 02:
I mean, it does seem to me

[00:12:13] Speaker 02:
that there's a pretty good argument that he ought to document it at the time and not just after the fact.

[00:12:19] Speaker 02:
What's your response to that?

[00:12:22] Speaker 04:
Well, Your Honor, I have two responses to that.

[00:12:25] Speaker 04:
One, I think even in the context of Chapter 75, where there is no dispute that the Douglas Factors are in, there is flexibility on that point.

[00:12:35] Speaker 04:
And as the board judge recognized, the board case law recognizes,

[00:12:40] Speaker 04:
that it does not have to be included in the letter and that sort of subsequent testimony can be sufficient.

[00:12:48] Speaker 02:
Obviously, on our first line point.

[00:12:49] Speaker 02:
Have we decided that issue before?

[00:12:54] Speaker 04:
Your Honor, offhand, I'm not sure.

[00:12:55] Speaker 04:
I do know that sort of with the Douglas Factors, this Court has held that they are even in the Chapter 75 context sort of are a guide, but they're neither a compulsory nor an exhaustive list.

[00:13:08] Speaker 04:
and that you can, you know, I don't think that they have to be specified in the letter.

[00:13:15] Speaker 04:
Offhand, I don't have a site for that in this court because that, I think our primary point on this appeal is that in this case, that should really not matter because the Douglas Factor should not be part of the Section 714 penalty review and that they are, in fact, a mitigation tool under Chapter 75.

[00:13:36] Speaker 04:
And so in this case, which is sort of the second question.

[00:13:41] Speaker 02:
But you seem to have lost that issue in Sayers, right?

[00:13:45] Speaker 04:
So I don't think we've lost.

[00:13:46] Speaker 04:
The issue that the Sayers Court addressed was that some penalty review is still a part of Section 714.

[00:13:54] Speaker 04:
And we accept that that is true.

[00:13:57] Speaker 04:
The question is, what is the nature of that penalty review?

[00:14:00] Speaker 04:
And how is it supposed to proceed?

[00:14:02] Speaker 04:
And we submit that,

[00:14:04] Speaker 04:
The type of penalty review that is available under Section 714 is the arbitrary and capricious standard that historically this court has applied, which is the question of whether the penalty is so disproportionate to the offense as to amount to an abuse of discretion or otherwise prohibited by law.

[00:14:26] Speaker 04:
But there has to be a meaningful difference between the type of penalty review that was available under Chapter 75 and the type of penalty review that the board undertakes in Section 714.

[00:14:37] Speaker 04:
And that is driven by the fact that Congress

[00:14:40] Speaker 04:
clearly reduced the scope of authority that the board has in Section 714, and that the purpose of enacting Section 714 was to streamline and simplify and ease the discipline process for the VA.

[00:14:55] Speaker 04:
And that sort of has two components to it.

[00:14:58] Speaker 04:
One is the increase in deference that the agency gets, and second is the reduction in certain procedural hurdles.

[00:15:05] Speaker 04:
And so the type of penalty review that the board should undertake in section 714 should be meaningfully different and less than the type of penalty review that it did under chapter 75 when it had authority not only to review the penalty, but also the broad authority that it inherited from the commission to mitigate the penalty.

[00:15:27] Speaker 04:
And the board in Douglas itself articulates that distinction when it sort

[00:15:32] Speaker 04:
adopt the standard of review that it will proceed with in Chapter 75.

[00:15:36] Speaker 04:
And that's where we lift that distinction from.

[00:15:40] Speaker 04:
It was originally articulated by the board and Douglas itself.

[00:15:47] Speaker 04:
And so in this case, just to go back one second to the question of what should happen with Mr. Connor.

[00:15:54] Speaker 04:
Mr. Connor's removal should be affirmed regardless of whether the court agrees with us on this Douglas question.

[00:16:01] Speaker 02:
Because there's no question that even at the higher standard, which we submit is improper, that's the standard that the board applied in this case and found that the agencies who have met and what Mr. Connery... Yeah, but they're ignoring the question of whether that review of the Douglas Factors, if let's assume it is required, has to be in the decision itself rather than just in the mind of the adjudicator.

[00:16:34] Speaker 04:
Well, Your Honor, I'm not sure that that specific question is one that Mr. Conner has validly raised.

[00:16:41] Speaker 04:
Certainly, he first takes issue with the content of the decision letter itself in his reply brief, which I would submit is insufficient.

[00:16:50] Speaker 04:
But what we have here is a number of credibility findings from the administrative judge that concludes that the deciding official did properly consider the facts underlying the Douglas Factor.

[00:17:02] Speaker 04:
And this is specifically.

[00:17:04] Speaker 02:
But I assume you're right about that.

[00:17:05] Speaker 02:
But still, usually agencies are required to set forth their decision in writing so that it can be reviewed.

[00:17:14] Speaker 02:
I mean, if you're reviewing a decision of the FCC,

[00:17:18] Speaker 02:
The FCC can't come in and say, well, we didn't put it in the decision, but we really were thinking about it nonetheless, right?

[00:17:27] Speaker 02:
I mean, that's not the way agency decisions get reviewed generally.

[00:17:31] Speaker 02:
It's not by the agency personnel coming in later and saying, well, we didn't talk about it in the decision, but we thought about it.

[00:17:39] Speaker 02:
That doesn't count, right?

[00:17:43] Speaker 04:
That's correct, Your Honor.

[00:17:44] Speaker 04:
But in this case, the decision does set forth what the basis for the agency was in removing Mr. Conner.

[00:17:50] Speaker 04:
And specifically, and the final decision is at Appendix Page 48, that the level of discipline was appropriate given the spuriousness of the offense and the gravity of the misconduct and the position of trust that Mr. Conner

[00:18:08] Speaker 04:
And those things were the basis for the decision.

[00:18:12] Speaker 04:
And that's consistent with what Mr. Ducker testified to during the hearing, that this was the seriousness of the offense and the position of trust that Mr. Conner was in.

[00:18:23] Speaker 04:
let him to lose that trust and that he could not sort of maintain him anywhere in the agency.

[00:18:29] Speaker 04:
And AJ found that testimony to be credible and weighted.

[00:18:34] Speaker 04:
Now, Mr. Connor tried to cross-examine Mr. Ducker on this comparator evidence and that somehow undermined the underlying decisions that this penalty was warranted.

[00:18:46] Speaker 04:
the administrative judge also considered that cross-examination and found it, frankly, to be not credible and that there were differences and that both that Mr. Ducker, the deciding official, reasonably considered that comparator evidence and also that it didn't support or sort of, I guess, undermine his conclusion that the penalty of removal was reasonable in this case.

[00:19:12] Speaker 04:
And that's also the final conclusion of the administrative judge.

[00:19:16] Speaker 04:
After it goes through the Douglas Factor Analysis, which we submit was unnecessary for Section 714, the Board sort of makes a separate and independent finding on the question that we agree is the central question for penalty review under Section 714.

[00:19:37] Speaker 04:
which is that the agency has shown that the seriousness of the offense, given the appellant's position, could justify removal.

[00:19:44] Speaker 04:
And that's at the very end of the decision on Appendix Pages 26 and 27.

[00:19:48] Speaker 04:
And that is the question that the Sayers Court told the board it has to consider.

[00:19:55] Speaker 04:
And that's the question that we submit as the proper standard for penalty review, which balances the concerns that the Sayers Court articulated about ensuring that there is

[00:20:07] Speaker 04:
you know, a stopgap, a decision that there is some review of the penalty and that penalties that are an abusive discretion are not, you know, in the words of my colleague, just rubber stamps, but that still gives sufficient weight to the increase in deference and the meaningful reduction in the process

[00:20:31] Speaker 04:
of disciplining employees that I think is undisputedly the purpose and intention of Congress in enacting Section 714.

[00:20:46] Speaker 04:
The one other point in terms of the heightened standards that the board applied in this case is the NESSIS requirement that they also found that the agency met in this case, and therefore Mr. Connor's removal should be affirmed, but that we submit with a question that the board should never have asked.

[00:21:06] Speaker 04:
That NEXIS requirement is again tied explicitly to the language in Chapter 75.

[00:21:11] Speaker 04:
The discipline has to promote the efficiency of the service.

[00:21:17] Speaker 04:
That requirement is definitely not in Section 714.

[00:21:22] Speaker 04:
All Section 714 requires is that the performance or misconduct warrants such removal, demotion, or suspension.

[00:21:29] Speaker 04:
And so that was another area where the board

[00:21:34] Speaker 04:
you know, the agency cleared an even higher hurdle in this case than it needed to have cleared.

[00:21:39] Speaker 04:
And so the remove, Mr. Connor's specific removal should be affirmed, but that the court should clarify that that requirement is not present in Section 714 cases going forward.

[00:21:55] Speaker 04:
And so I guess at bottom, absent further question from the court,

[00:22:00] Speaker 04:
Our position is twofold.

[00:22:02] Speaker 04:
One is that Mr. Conner's removal in this case should be affirmed.

[00:22:07] Speaker 04:
The agency cleared what is indiscriminately the highest standard.

[00:22:12] Speaker 04:
It could have cleared under Section 714.

[00:22:14] Speaker 04:
And the issues that Mr. Conner raises on appeal are fundamentally a request for this court to reweigh the evidence

[00:22:21] Speaker 04:
that was indisputably before the board and the administrative judge and that the administrative judge found against Mr. Connor.

[00:22:28] Speaker 04:
And that's something that this court cannot do and does not do and should not do in this case.

[00:22:34] Speaker 04:
But second of all, you know, there is a split that is currently forming at the board in terms of the application of the Douglas Factors to Section 714 penalty reviews.

[00:22:45] Speaker 04:
And the court

[00:22:46] Speaker 04:
should resolve that split and clarify and course-correct that situation and specify that the Douglas Factors are not part of Section 714 penalty review by removing and explicitly narrowing the scope of authority that the board has

[00:23:04] Speaker 04:
with the intention of streamlining the discipline process for the VA in section 714, that that removed the sort of broader reasonableness inquiry that the board used to engage in and that the board explicitly tied

[00:23:19] Speaker 04:
to its mitigation authority and the broad mitigation authority that it inherited from the commission.

[00:23:25] Speaker 04:
And so applying the standard that we articulate, which is the standard that the courts had historically applied for arbitrary and capricious penalty review, that that strikes the proper balance between the concerns articulated by this court and theirs and the intention of Congress to meaningfully reduce

[00:23:43] Speaker 04:
and meaningfully change the type of penalty review that the board undertakes in section 714 versus chapter 75.

[00:23:51] Speaker 04:
Okay.

[00:23:54] Speaker 00:
Any more questions for Ms.

[00:23:55] Speaker 00:
Wilmenkova?

[00:23:56] Speaker 00:
No.

[00:23:57] Speaker 00:
All right.

[00:23:59] Speaker 00:
Thank you.

[00:24:00] Speaker 00:
We'll hear from Mr. Kirkpatrick.

[00:24:03] Speaker 03:
I want to hit back.

[00:24:04] Speaker 03:
The court asked counsel specifically, is it an error

[00:24:09] Speaker 03:
But they don't document the discipline if it's in the mind of the deciding official, has this court addressed it?

[00:24:14] Speaker 03:
Yes, this court has addressed it.

[00:24:16] Speaker 03:
Ward versus US Postal Service 634 of 3rd, 1274 discusses this in the context of a due process violation.

[00:24:25] Speaker 03:
If the agency does not give all the reasons why they removed somebody and how they arrived at that decision, this would fall under what we call a ward violation.

[00:24:34] Speaker 03:
And the case has to be overturned.

[00:24:36] Speaker 03:
This court also addressed it a little bit in Stone versus Federal Deposit Insurance Corporation, 179 F.

[00:24:41] Speaker 03:
3rd, 1368.

[00:24:44] Speaker 03:
The same thing that if a due process violation occurs, if the agency cannot articulate what they considered, if now the agency's proposing that Mr. Ducker knew about this, but he didn't say that, then yes, then he would be entitled to a new procedure.

[00:25:03] Speaker 03:
The issue really comes down to,

[00:25:05] Speaker 03:
for the court is to consider what the agency just said.

[00:25:08] Speaker 03:
The agency wants it two ways.

[00:25:10] Speaker 03:
They want to say, on one hand, the court should not review Douglas.

[00:25:14] Speaker 03:
It was an error that the AJ considered Douglas and that kind of thing.

[00:25:18] Speaker 03:
But we do like the fact, and we state in our brief, that the court did consider Douglas.

[00:25:23] Speaker 03:
They can't have it both ways.

[00:25:24] Speaker 03:
The agency also argued in this brief that the court should follow the hybrid method of Chapter 43 in a performance case.

[00:25:32] Speaker 03:
That's what 714 is.

[00:25:33] Speaker 03:
Well, the problem is Brenner came out a month later and said, that's not the case.

[00:25:38] Speaker 03:
The issue that really comes down to this is to consider what the agency did at the time they fired my client.

[00:25:45] Speaker 03:
And Mr. Ducker did not consider, did not memorialize, did not put down.

[00:25:49] Speaker 03:
Before 714, the VA, like all the other agencies, usually submitted what they call a Douglas Factor Worksheet, which would be part of the record.

[00:25:56] Speaker 03:
And they'd go through the 12 Douglas Factors and say, this one applies or this one doesn't apply.

[00:26:00] Speaker 03:
This is what I consider.

[00:26:02] Speaker 03:
This is what I didn't consider.

[00:26:03] Speaker 03:
They did none of that.

[00:26:04] Speaker 03:
And the information and the material that we provided the Joint Appendix demonstrates that and how they responded to our questions.

[00:26:13] Speaker 03:
If the court has any further questions, I'll be happy to entertain that.

[00:26:18] Speaker 00:
Any more questions, Mr. Kirkpatrick?

[00:26:23] Speaker 01:
No.

[00:26:23] Speaker 01:
No.

[00:26:24] Speaker 00:
All right.

[00:26:25] Speaker 00:
In that case, with thanks to both counsel

[00:26:28] Speaker 00:
The case is taken under submission.

[00:26:30] Speaker 00:
And that concludes this panel's arguments for this morning.

[00:26:35] Speaker 03:
Thank you.

[00:26:39] Speaker 04:
The Honorable Court is adjourned until tomorrow morning at 10 AM.