[00:00:00] Speaker 02:
21-1626, Harrison against Department of the Army.

[00:00:06] Speaker 02:
Mr. Watson, please.

[00:00:09] Speaker 00:
Thank you, Your Honor, and may it please the Court.

[00:00:12] Speaker 00:
I would like to address the following issues this morning.

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The first issue is broken up into two parts.

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So I would refer to it as 1A.

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And it's whether OPM approved the agency's performance appraisal system that the appellant was evaluated under before her removal.

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The next issue is whether OPM approved any significant changes to the agency's performance appraisal system that she was evaluated on.

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And the next issue, which I'll term issue two, is did the administrative judge err in incorporating evidence from the OPM website into her initial decision when it wasn't part of the actual record?

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And last, did the administrative judge err by shifting the burden to appellate to prove that OPM authorized the agency's performance appraisal system where the agency carried the burden to prove.

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On issue 1A, the agency did not provide substantial evidence that OPM approved the 2014 reissue of the Department of

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defense instruction, which updated or changed the initial performance appraisal system.

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Of course, Your Honors know, back in 1996, December 31st, 1996, OPM authorized a performance appraisal system for the Department of Defense, agency-wide.

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But the Department of the Army implemented a performance appraisal system term, TAPES, which the acronym is the Total Army Performance Evaluation System.

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Can I ask you this?

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Yes, Your Honor.

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Am I right?

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I don't recall until the reply brief in this court seeing anything about this TAPES program.

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Was this raised previously in this case?

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Yes, Your Honor, it was raised by my client.

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She testified to it when it was her turn, but it was in the record.

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The actual reg was not in the record, but she did testify as to tapes and made the administrative judge known.

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It made it known that tapes was the system that the Department of the Army operated under prior to 2014.

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And putting aside the question of whether this has been raised too late, why isn't TAPES a program, not a system?

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And programs, I gather, don't have to be approved by OPM.

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Only systems do.

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Yes, Your Honor.

[00:03:20] Speaker 00:
Well, the plain text has read, states that it's a system for the Department of the Army.

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And presumably, it's supposed to be in compliance with the Department of Defense's present system, but it was a separate system for the Army.

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And what happened after the Department of Defense obtained the approval of OPM in 1996 is that the Department of the Army, Department of the Navy, and different departments had their own

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What happened in 2014 is that the Department of Defense consolidated it and further expanded upon it in 2016.

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So they scrapped all the individual systems under the

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and went with the uniformed Department of Defense appraisal system.

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And what I've learned since the initial decision is that it's a program.

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So it's bugged.

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They reissued the change to 430.

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Department of Defense 430 in 2014, and then they implemented a system in 2016 to make it uniform across all non-SES employees.

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And then, Your Honor,

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The problem with the evidence presented at the hearing was the agency had to maintain their burden approved on that issue as to whether OPM approved the actual appraisal system that Ms.

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Harrison was under.

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And in doing so, they presented a letter that they did not attach to OPM 41631

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to the letter, they did not produce the actual performance appraisal system that was authorized in 1996.

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And a careful review of the instruction in what I'll term as the 2014 DOTI is that

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It became effective in 2014.

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So if that was the original one that was approved by OPM, the Department of the Army did not produce it at the hearing.

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And to me, and based on the record, it didn't appear that OPM had actually seen that particular one.

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There wasn't evidence.

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And the witness that they

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had testified on this matter, Mr. Fawcett, that gentleman didn't have knowledge of whether OPM even approved the 2014 change.

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Across examination, he acknowledged that he had worked for OPM and he had no knowledge of how they would have done it or if they did it at all, which undermines his previous testimony that

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opium-proofed it.

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And when pressed on it, his only knowledge of whether opium-proofed the 2014 DODI was based on the 1996 letter, opium letter, and nothing else.

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And because of that, the respondent finds that Mrs. Harrison's argument is that isn't substantial evidence.

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If you have a witness,

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testified about an issue that he has no underlying knowledge of.

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Regardless of whether the administrative judge found it credible, he lacked the basic knowledge to testify on that issue.

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Because of that, the agency failed to meet his word of proof on both the documents and Mr. Foss's testimony.

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And as to the 2016 change, I would argue that while it does say it's a program, there were steps taken to further expand upon in 2014 the OVI.

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And the administrative judge indicated in her initial decision that that particular update was not

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approved by OPS.

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There's no evidence in the record of it.

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There's no letter referencing it.

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The agency didn't raise that issue at the hearing.

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And Mr. Fawcett himself also testified that he was unaware of it.

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And to issue two, Your Honors, there was argument made at the

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hearing on the initial decision.

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And after the argument, after the record closed, the administrative judge went out to the OPF website and incorporated aspects of what she found on that after the record was closed.

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Mrs. Harrison believes that that was improper.

[00:09:33] Speaker 02:
What use do you think the administrative judge made of that website information other than to simply say what the regulations provide, which is either correct or incorrect by just looking at the regulations, which are matters of public record and matters of law?

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Why is the citation to the website

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harmful in the sense that does it or does not add anything to what is perfectly proper to look at, namely the regulation books on the shelf.

[00:10:18] Speaker 00:
Yes, Judge.

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I believe it was improper because while she did that to support her buttress,

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the agency's argument, she did not go out and search for the previous performance appraisal system for the Department of the Army, which is taped to create a full record.

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That's also a regulation.

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She didn't do that either.

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And that would have been appropriate as well, Judge.

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I believe she should have just stuck with the record and decided the case on the merits based on the record before her.

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the appellate's concern.

[00:11:03] Speaker 02:
You are into the rebuttal time you reserved.

[00:11:06] Speaker 02:
You can continue or save that time for rebuttal.

[00:11:11] Speaker 00:
I'll save that time for rebuttal, Your Honor.

[00:11:13] Speaker 02:
Thank you.

[00:11:14] Speaker 02:
Thank you.

[00:11:18] Speaker 02:
I think your screen is now going to be moved away.

[00:11:21] Speaker 02:
And so let's pause for a second.

[00:11:28] Speaker 02:
Do we take a photo of us with him?

[00:12:16] Speaker 02:
Mr. Carson, when you're ready.

[00:12:18] Speaker 01:
Thank you, Your Honor.

[00:12:19] Speaker 01:
May it please the Court?

[00:12:23] Speaker 01:
Your Honor, the primary issue here is whether substantial evidence supported the MSPB's decision that Ms.

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Harrison's dismissal was pursuant to an OPM approved performance appraisal system.

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And it did.

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The administrative judge relied on five things in reaching her conclusion.

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One, the plain text.

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of DOD instruction 1400.25, volume 430, which is the DOD's current performance appraisal system.

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And I'll just refer to that as volume 430 for ease of reference.

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The second thing she looked at was the OPM approval letter that was explicitly and directly incorporated verbatim, cut and pasted into the volume 430.

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The third thing she looked at was the plain text of volume DODI 1400.25, volume 431, which is the DOD Performance Appraisal Program.

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The fourth thing she looked at or considered was the hearing testimony of the Army Human Resources Specialist, Andrew Fawcett.

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And then fifth, she used some information from the OPM website to corroborate the information that's in the statute and regulations and that Mr. Fawcett testified to and that's found in the DOD instructions themselves.

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The confusion here on the part of the petitioner seems to be over what constitutes an appraisal system versus an appraisal program.

[00:14:02] Speaker 01:
We're dealing with two different and distinct DOD instructions or issuances.

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The first being volume 430, which establishes on its face the DOD performance appraisal system.

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The second one we're dealing with is volume 431, which on its face establishes the DOD

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performance appraisal program.

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They're both issued pursuant to statute and regulations.

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An appraisal system is high-level.

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It's a framework.

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It's a high-level plan of policies and parameters for the administration of a program.

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The program then delves into the details.

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The system, the appraisal system, is required to be approved by OPM.

[00:14:51] Speaker 01:
That's in the statute.

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That's in the regulations.

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The program does not need to be approved by OPM.

[00:14:58] Speaker 01:
Both the statute and the regulations address that as well, primarily by their silence.

[00:15:07] Speaker 01:
They don't require OPM to approve the program, whereas they explicitly require OPM to approve the system.

[00:15:14] Speaker 03:
Do you understand there being any dispute about what you're saying now?

[00:15:17] Speaker 01:
I'm sorry?

[00:15:18] Speaker 03:
Is there a dispute in this case?

[00:15:20] Speaker 03:
I mean, I didn't see.

[00:15:20] Speaker 03:
I see you made these points in your red brief.

[00:15:23] Speaker 03:
I didn't see any contradiction to it in the red brief.

[00:15:26] Speaker 01:
Well, I think it's important to draw these distinctions.

[00:15:28] Speaker 01:
It seems that from our reading of petitioners' briefs, they were conflating at times.

[00:15:35] Speaker 01:
Ms.

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Harrison seems to conflate at times what constitutes a system versus what constitutes a program.

[00:15:42] Speaker 01:
Then the court looked at it.

[00:15:44] Speaker 03:
Well, that's true.

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And that was a little bit of confusion of the testimony

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Council, the plaintiff asked whether or not 431 wasn't a change to 430.

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And the answer was no, they're different things.

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Correct.

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And in 430, the administrative judge concluded that 430 was approved by OPM based on two things.

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One, the letter that's incorporated directly into the instruction.

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And then two, in looking at that.

[00:16:17] Speaker 03:
Where is that?

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Is that letter incorporated in the 2014?

[00:16:23] Speaker 01:
Correct, yes, Your Honor.

[00:16:25] Speaker 01:
It's at appendix 332.

[00:16:26] Speaker 03:
Wait a second.

[00:16:29] Speaker 03:
I see the letter at 332.

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Now, incorporate that in something for me.

[00:16:35] Speaker 01:
So are we talking about the original 1997 standard?

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Correct.

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So right, there's a two-step process here.

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Do we have the 1997 standard in the record?

[00:16:46] Speaker 03:
I didn't think we did.

[00:16:47] Speaker 01:
It is not in the record, Your Honor.

[00:16:49] Speaker 03:
I found it, but I don't know whether it's accurate or not.

[00:16:53] Speaker 03:
Where do we know that the 1996 letter actually refers to the 1997 system?

[00:17:02] Speaker 03:
Because of the text of the letter?

[00:17:04] Speaker 01:
I'm sorry, your honor?

[00:17:05] Speaker 03:
How do we know, how do we made up the 1996 letter to the 1997 system?

[00:17:12] Speaker 01:
Well,

[00:17:13] Speaker 02:
this this letter uh... what what what what i'm looking at so i'm three to six which is the opening page it says this is a re issue of volume four thirty c reference e reference e two pages later through three to nine is four thirty performance management plan december first nineteen ninety six as amended hereby canceled

[00:17:41] Speaker 02:
Right, and do we know that the December 1996 version is what the January 1996 letter approved?

[00:17:51] Speaker 01:
Yes, Your Honor.

[00:17:52] Speaker 01:
How do we know that?

[00:17:54] Speaker 01:
Well, it's based on the record before the MSPB, Your Honor.

[00:17:59] Speaker 01:
Well, what part of the record?

[00:18:01] Speaker 01:
I'm sorry?

[00:18:02] Speaker 03:
What part of the record in front of the MSPB?

[00:18:05] Speaker 01:
Well, that this instruction was reissued pursuant to that

[00:18:10] Speaker 03:
I'm not talking about the reissue.

[00:18:12] Speaker 03:
I'm talking about the original creation, 1997, right?

[00:18:16] Speaker 01:
Yes, Your Honor.

[00:18:17] Speaker 03:
OK, so we have this 1996 letter, right?

[00:18:19] Speaker 03:
Correct, Your Honor.

[00:18:21] Speaker 03:
And so how do we know?

[00:18:22] Speaker 03:
It says in response to your request of January 26, are we just to assume that that January 26 request was with regard to December 1, 1996, 430?

[00:18:36] Speaker 01:
Well, Your Honor, that's certainly, I think, the conclusion to be drawn that DOD, represented in the DODI, that OPM approved this performance appraisal system that was originally issued in 1996 and then reissued here in 2014.

[00:18:57] Speaker 02:
Is there something odd about OPM's approval in January of 96 and DOD not issuing it until 11 months later?

[00:19:07] Speaker 02:
Or is that it just takes 11 months to issue something after OPM has approved it?

[00:19:13] Speaker 01:
Well, I think it's probably a timing issue in terms of DOD drafting the system, submitting it for approval, and then the process of them then actually issuing it pursuant to their issuance requirements as a formal DOD instruction.

[00:19:35] Speaker 01:
And so the administrative judge

[00:19:41] Speaker 01:
took into consideration that approval letter, and then the testimony of the Army Human Resources Specialist, who testified that she found credibly that there had been no significant changes to the appraisal system in the interim that would require re-approval by the OPM.

[00:20:02] Speaker 01:
And here, to this point, I would like to address the issue raised by Petitioner for the first time in her reply brief.

[00:20:10] Speaker 01:
There is no record of, at the MSPB level, before the administrative judge, and Petitioner did not raise in her opening brief this issue of tapes being the original performance appraisal system.

[00:20:26] Speaker 01:
So, as would be our position, that argument's been waived.

[00:20:29] Speaker 03:
But even if it hasn't been waived... What did his witness testify to as to tapes?

[00:20:36] Speaker 03:
He said she brought it up in their testimony.

[00:20:39] Speaker 01:
And that is not before the record.

[00:20:41] Speaker 01:
That's not in the record that's been transferred to this court.

[00:20:45] Speaker 03:
No, the record that was transferred didn't include all the transcripts.

[00:20:48] Speaker 03:
And I got the transcript.

[00:20:49] Speaker 03:
And unfortunately, I didn't bring the whole transcript to the argument.

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I just brought the part that deals with the approval.

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But what's your recollection of what she testified to?

[00:20:59] Speaker 01:
The copy of the transcript I have does not have her testimony about tapes.

[00:21:04] Speaker 01:
We went back and looked at the record that we received and we did not see testimony regarding tapes.

[00:21:12] Speaker 01:
But for the sake of argument, let's assume that she testified about tapes, and it was an argument or an issue that was before the administrative judge.

[00:21:23] Speaker 01:
I would say that I find that questionable, because Petitioner's Counsel just said one of his complaints was that the administrative judge didn't go out and search for tapes and review that on her own.

[00:21:35] Speaker 01:
So I question whether or not it was really an issue that was raised before the administrative judge and before her.

[00:21:41] Speaker 01:
Putting that to the side, Petitioner's Council talks about the plain text of tapes.

[00:21:50] Speaker 01:
Let's look at the plain text of tapes.

[00:21:51] Speaker 01:
It's attached to Petitioner's Reply Brief.

[00:21:58] Speaker 02:
So the title says system, and then under section 1. whatever it says is basically a program under the 430 system.

[00:22:06] Speaker 01:
Yes, you're anticipating what I'm going to talk about, yes, Your Honor.

[00:22:10] Speaker 01:
So the title of it is a bit of a misnomer, perhaps, by calling it a system.

[00:22:14] Speaker 01:
Because, Your Honor, you read the document, and you're right, at provision 1-1 purpose.

[00:22:24] Speaker 01:
I'm looking at page ADD 5.

[00:22:27] Speaker 01:
It's attached to the reply brief.

[00:22:30] Speaker 01:
It's attached to the reply brief.

[00:22:32] Speaker 01:
Paragraph C states that this chapter sets forth policy for civilian personnel performance management programs of the Department of the Army that are in conformance with the DOD performance appraisal system approved by the Office of Personnel Management.

[00:22:48] Speaker 01:
So TAPES was an old program, an appraisal program that the Army had.

[00:22:54] Speaker 01:
Now, I will grant that it is no longer in effect, but it was phased out in favor of the current program that's in effect, volume 430.

[00:23:06] Speaker 01:
So TAPES is not the old system.

[00:23:11] Speaker 01:
There's no evidence in the record, there was no evidence before the administrative judge that there was an old, different

[00:23:19] Speaker 01:
appraisal system that got cancelled and now we have this new one that isn't approved by OPM.

[00:23:25] Speaker 01:
The only evidence in front of the administrative judge is that the performance appraisal system was approved and that there had been no changes to it, significant changes to it over the years.

[00:23:39] Speaker 02:
Was the witness who was a human resources officer in the Department of Defense or Army?

[00:23:47] Speaker 01:
He was with the Department of the Army, Your Honor.

[00:23:49] Speaker 02:
And was he in that position or similar position as far back as 1996?

[00:23:56] Speaker 01:
He was not, Your Honor.

[00:23:57] Speaker 01:
He had been in that position.

[00:23:58] Speaker 01:
It was either two or three years.

[00:24:01] Speaker 01:
But as part of his job, he testified, and I can get the

[00:24:07] Speaker 01:
the record citation for it, but he testified that he worked regularly on a daily basis with these instructions.

[00:24:14] Speaker 01:
He was very familiar with them.

[00:24:18] Speaker 02:
But what qualified him to testify about the absence of change from 1996 if he wasn't there for the lion's share at that time?

[00:24:27] Speaker 01:
I think that the administrative judge determined that his testimony on that issue was credible because of his

[00:24:33] Speaker 01:
the fact that he normally, on a regular basis, worked with those instructions was familiar with them as part, and had to be familiar with them as part of his job.

[00:24:43] Speaker 02:
And that was only one part of the evidentiary record on which the administrative judge concluded that the reissue in 2014 was not substantively different from the December 1996 one.

[00:24:59] Speaker 02:
Presumably a few months earlier.

[00:25:02] Speaker 01:
It was a big part of her

[00:25:03] Speaker 01:
of her conclusion of that finding?

[00:25:06] Speaker 03:
I didn't think that his qualifications to be able to testify as to whether significant changes had occurred weren't challenged.

[00:25:17] Speaker 03:
Were they?

[00:25:18] Speaker 03:
I mean, his cross-examination from your friend in opposition was whether or not he knew anything about how OPM went about approving plans, yes and no.

[00:25:29] Speaker 03:
And I said, no, I don't know.

[00:25:30] Speaker 03:
I don't know what standards they used, how they do it approving.

[00:25:33] Speaker 01:
I think that's correct, Your Honor.

[00:25:35] Speaker 01:
And I would say that his knowledge about how OPM goes about its job is really neither here nor there.

[00:25:42] Speaker 03:
I mean, how OPM does its job is different from whether or not he had enough experience to recognize the difference between one system and another.

[00:25:50] Speaker 03:
I didn't see anything in the transcript about anyone setting him up as qualified or questioning whether he was qualified to testify as to significant change.

[00:26:00] Speaker 03:
He was simply asked, have there been significant changes you're aware of?

[00:26:04] Speaker 03:
No, sir, no significant changes.

[00:26:07] Speaker 03:
On cross exam, he was asked, well, isn't 431 a significant change?

[00:26:11] Speaker 03:
He said, no, that 431 is not a system.

[00:26:13] Speaker 03:
It's a program.

[00:26:14] Speaker 03:
Correct.

[00:26:15] Speaker 03:
And then there was a question about whether or not he, cross exam, about whether he would have any way of knowing how OPM went about making this change.

[00:26:23] Speaker 03:
He said, no, I don't work over there.

[00:26:25] Speaker 01:
Correct, Your Honor.

[00:26:26] Speaker 01:
And I think that's one of the reasons.

[00:26:27] Speaker 03:
I think the record is just as silent as to whether or not there was a challenge as to Mr. Fawcett's

[00:26:35] Speaker 03:
talents or his ability to know whether significant change.

[00:26:39] Speaker 03:
He testified there was no significant change.

[00:26:42] Speaker 03:
The ALJ accepted that as a fact.

[00:26:46] Speaker 03:
It's a little much to say that she actually credited his testimony as on his ability to know about, to assess whether there were changes.

[00:26:56] Speaker 01:
Well, I think that she did

[00:27:01] Speaker 01:
In her opinion, at appendix five, she wrote that OPM's letter advised the agency to send OPM for approval.

[00:27:15] Speaker 01:
And I'm looking at the middle paragraph on appendix five.

[00:27:20] Speaker 03:
It's incredibly testified there have been no such changes.

[00:27:23] Speaker 01:
Right.

[00:27:23] Speaker 03:
That's what I saw.

[00:27:26] Speaker 03:
She said as to Foster.

[00:27:27] Speaker 01:
Right.

[00:27:27] Speaker 01:
And I think you would infer from that.

[00:27:30] Speaker 03:
It hadn't been cross-examined as to his skills in being able to know the difference between one system and the other as it's written.

[00:27:37] Speaker 01:
Well, to your point, I think it would probably be a combination of things.

[00:27:41] Speaker 01:
I think the administrative judge probably inferred from his experience and the fact that he worked with these instructions.

[00:27:48] Speaker 01:
They're part of his daily job.

[00:27:49] Speaker 03:
He's only been there two years.

[00:27:50] Speaker 03:
He probably hadn't

[00:27:52] Speaker 03:
had a lot of experience with the old system.

[00:27:55] Speaker 01:
Well, I think that the administrative judge, in making her credibility determination, I think you combined with the fact that there was no challenge to his credibility on that point combined with- Well, the elephant in the room is that no one put in evidence and record the 1997 system.

[00:28:19] Speaker 03:
and lay it on the table and analyze it to the 2014 system.

[00:28:25] Speaker 03:
Right?

[00:28:26] Speaker 01:
Yes, Your Honor, but I think it's fair.

[00:28:28] Speaker 01:
And I think under the substantial evidence state, I think it's fair to take the current DODI instruction and the approval letter that's incorporated into it and the testimony that there have been no significant changes to the system since it was first approved.

[00:28:49] Speaker 01:
and find that there's substantial evidence that it is an OPM approved performance appraisal system.

[00:28:55] Speaker 01:
So for these reasons, we would ask that you affirm the MSPP's decision.

[00:29:01] Speaker 02:
Thank you.

[00:29:03] Speaker 02:
And rebuttal.

[00:29:06] Speaker 02:
Hold on one second.

[00:29:13] Speaker 02:
Hold on one second, please.

[00:29:16] Speaker 02:
We have to get the screen lined up so that you can see us and we can see you.

[00:29:20] Speaker 02:
We'll be with you in about 10 seconds or 20 or something.

[00:29:35] Speaker 02:
OK.

[00:29:41] Speaker 02:
Thank you for your patience.

[00:29:43] Speaker 00:
No problem, Your Honor.

[00:29:45] Speaker 00:
I just want to address a handful of issues.

[00:29:48] Speaker 00:
First of all, the complete record for both days of the hearing will show, the second day of the hearing is when my client, Mrs. Harrison, testified that Tate was the Department of the Army appraisal system that she was under.

[00:30:06] Speaker 00:
And my friendly opposition takes issue with that, but that is in the record before the

[00:30:15] Speaker 00:
administrative judge.

[00:30:17] Speaker 00:
And the significance of the change is this, Your Honors.

[00:30:21] Speaker 00:
Under TAPES, there were five rating standards.

[00:30:26] Speaker 00:
There was one through five.

[00:30:28] Speaker 00:
And when 2014 came about and the Department of Defense started standardizing its entire plan, the appraisal system, they switched it from one, three, and five.

[00:30:40] Speaker 00:
So if you were an employee and you

[00:30:43] Speaker 00:
had a five on, one of the critical elements, maybe a one.

[00:30:49] Speaker 00:
There was less of an opportunity to arrive at that three.

[00:30:53] Speaker 00:
If you got too many ones on an evaluation, it significantly impacted your appraisal request.

[00:31:01] Speaker 00:
The next point I want to raise, Your Honors, is if you look at the reply brief to Addendum 13, you'll note that the actual

[00:31:14] Speaker 00:
1996 appraisal system that was approved decided here.

[00:31:20] Speaker 00:
And it says DOD 14-25M, subchapter 430, appendix B. So the appraisal system that was approved was attached to addendum D. And that was the one that takes, operated on, if it's going to be construed as a program for the Department of the Army.

[00:31:43] Speaker 00:
In the record, when you look at Appendix 326, there is no Appendix B. It talks in terms of enclosure.

[00:32:05] Speaker 00:
There's no Appendix D in that.

[00:32:08] Speaker 00:
When you actually get to the alleged DOD performance appraisal system at Appendix 334, there is no Appendix B citation whatsoever.

[00:32:18] Speaker 00:
So this is a different appraisal system.

[00:32:23] Speaker 00:
And despite discovery and a requirement under the MSPB rule to provide the agency file for this case, and after subsequent discovery, this is all that the agency produced.

[00:32:38] Speaker 00:
put forward as evidence of their appraisal system.

[00:32:47] Speaker 00:
I think I mentioned this before, Your Honors, but I just want to make sure that I get this in.

[00:32:56] Speaker 00:
The agency replaced the July 31, 1996 OPM letter with the approval of the 2014 DODI.

[00:33:07] Speaker 00:
At the surface, their arguments tend to make sense if you just look at the statutory scheme and the posture of this court's precedent.

[00:33:17] Speaker 00:
However, as your honors pointed out, the old DODI 430 is not in the record.

[00:33:25] Speaker 00:
It was amended at some point, and that version was canceled.

[00:33:29] Speaker 00:
We don't have a copy of it.

[00:33:31] Speaker 00:
It's not before you today.

[00:33:32] Speaker 00:
The agency actually operated,

[00:33:37] Speaker 00:
of the Army actually operated under tapes until the entire system was changed in 2014.

[00:33:45] Speaker 00:
But nowhere is it evident in the record that the Department of Defense or the Army produced a subsequent letter from OPM indicating that that 2014 change was even reviewed and approved by OPM.

[00:34:06] Speaker 00:
And that's really the issue here.

[00:34:08] Speaker 00:
Your Honor.

[00:34:10] Speaker 02:
That would not be the issue if TAPES is actually a program and not a system notwithstanding its name.

[00:34:17] Speaker 02:
Is that right?

[00:34:20] Speaker 00:
I don't concede that point, Your Honor.

[00:34:23] Speaker 00:
I believe it was a system for the Department of the Army.

[00:34:26] Speaker 00:
Mrs. Harrison was an employee in the Department of the Army.

[00:34:32] Speaker 00:
But I don't concede that point.

[00:34:36] Speaker 03:
OK.

[00:34:40] Speaker 00:
But whatever it was, the performance appraisal plan that she was under was the one governed by the 2016 change.

[00:34:51] Speaker 00:
And there's no proof of that either.

[00:34:53] Speaker 00:
And with that, Your Honors, I rest.

[00:34:56] Speaker 00:
I think I'm out of time.

[00:34:57] Speaker 02:
Thank you very much.

[00:34:58] Speaker 02:
Thanks to you.

[00:34:59] Speaker 02:
Thanks to the government council.

[00:35:01] Speaker 02:
The case is submitted.

[00:35:03] Speaker 02:
We will stand in recess.