[00:00:22] Speaker ?:
th th

[00:01:11] Speaker 01:
I'm sorry, McKay versus DHS?

[00:01:16] Speaker 01:
Is that not the correct case?

[00:01:19] Speaker 01:
Did they sit in the wrong path?

[00:01:30] Speaker 02:
No, they're fine right there.

[00:01:31] Speaker 02:
It's just the way we had it arranged for third.

[00:01:44] Speaker 01:
Our next case for argument is 20-2128 McDay versus DHS.

[00:01:51] Speaker 01:
Ms.

[00:01:52] Speaker 01:
Giles, please proceed.

[00:02:05] Speaker 01:
Good morning, and may it please the court.

[00:02:07] Speaker 01:
My name is Allison Giles.

[00:02:09] Speaker 01:
I'm with the National Treasury Employees Union here on behalf of petitioner Dante McDay.

[00:02:14] Speaker 01:
The arbitration decision upholding Mr. McDay's removal for a single positive drug test had multiple errors that weren't reversible.

[00:02:22] Speaker 01:
First, the arbitrator used the wrong standard regarding whether the agency had proven its case against Mr. McDay.

[00:02:27] Speaker 01:
Second, the drug test was not done in accordance with the mandatory drug testing guidelines, which require a retest upon request.

[00:02:36] Speaker 01:
There's case law holding that when a retest is not done, the original sample must be excluded.

[00:02:40] Speaker 01:
The guidelines don't speak to who has to pay for the retest, correct?

[00:02:43] Speaker 01:
One way or the other, the agency or the employee.

[00:02:46] Speaker 01:
When someone's rights are on the line, I think the important issue is the request to a retest on or not.

[00:02:51] Speaker 01:
He was given the opportunity to retest three separate times.

[00:02:55] Speaker 01:
Three separate instances he was told he could retest the sample.

[00:02:58] Speaker 01:
The first one, I'm sorry, on the first time the arbitrator found that there was confusion about how the payment would work.

[00:03:04] Speaker 01:
He did say he wanted a retest.

[00:03:06] Speaker 01:
He did say he was willing to pay.

[00:03:07] Speaker 01:
He offered to get his credit card in that very first call.

[00:03:11] Speaker 01:
Eight and a half months later they did offer again twice, but at that point his rights had already been violated.

[00:03:17] Speaker 01:
He had the right to a retest promptly when the sample was fresh and he was understandably concerned about the lag of time between the initial test and the subsequent offers.

[00:03:28] Speaker 01:
Is there something in the guidelines that specify the number of days in which a retest must take place?

[00:03:35] Speaker 01:
They do say that the employee has to request it within 72 hours, and there was testimony about the norm is to do the retest within a matter of days.

[00:03:45] Speaker 01:
But it doesn't specify how soon the retest must actually be done.

[00:03:49] Speaker 02:
And is it your position that he raised this issue before the arbitrate?

[00:03:53] Speaker 01:
he raised the validity of the retest that it was not done that's undisputed no one disputes that it was not done and we did raise the issue that absent it being done the original drug sample is not the prepayment issue

[00:04:07] Speaker 01:
We do think it was raised before the arbitrator.

[00:04:09] Speaker 01:
In the issues that we raised, the second one in particular, we think is broad enough to include this issue.

[00:04:15] Speaker 01:
On Appendix Page 2, does the agency's removal of Mr. McDade promote the efficiency of the service?

[00:04:21] Speaker 01:
That assumes a valid removal.

[00:04:23] Speaker 01:
This removal here is based solely on one piece of evidence, solely on the original drug test.

[00:04:29] Speaker 01:
The drug test not done.

[00:04:30] Speaker 01:
But like Judge Prosson, I think I understood her question to be, do you have a challenge here

[00:04:37] Speaker 01:
to the fact that your client is responsible to pay for that retest?

[00:04:42] Speaker 01:
And did you raise that challenge below?

[00:04:46] Speaker 01:
So two issues.

[00:04:46] Speaker 01:
I think we do have a challenge.

[00:04:48] Speaker 01:
The guidelines don't specify that the employee has to pay.

[00:04:50] Speaker 01:
I think when someone's rights are on the line and the guidelines refer to a retest as a right, the agency should do it.

[00:04:57] Speaker 01:
I mean, they could always have done it and charged him later.

[00:05:00] Speaker 01:
I don't think he should have to pay, but they could have done it and billed him later.

[00:05:03] Speaker 01:
when someone's rights are on the line, and this is the sole basis for his removal.

[00:05:08] Speaker 01:
The second, the more procedural question, do we raise it below?

[00:05:10] Speaker 01:
We raised two broad issues before the arbitrator, and I think this is subsumed within the second one.

[00:05:15] Speaker 01:
Does his removal promote the efficiency of the service?

[00:05:18] Speaker 01:
That assumes a valid removal.

[00:05:20] Speaker 01:
We don't think his removal is valid here, because it is based on a single drug test.

[00:05:26] Speaker 00:
Just on this point about rights.

[00:05:32] Speaker 00:
People have a right to file a lawsuit.

[00:05:34] Speaker 00:
People have a right to file an appeal.

[00:05:38] Speaker 00:
Presumptively, there are filing fees that go with that.

[00:05:42] Speaker 00:
There are sometimes justifications for not requiring the filing fee to be paid.

[00:05:50] Speaker 00:
But payment for the exercise of a right

[00:05:54] Speaker 00:
is kind of a pretty common feature of the right and doesn't make it any less erect.

[00:06:04] Speaker 01:
I first distinguish your examples where someone affirmatively chooses to pursue a case.

[00:06:08] Speaker 01:
They know that there are going to be various pre-steps to doing that.

[00:06:14] Speaker 01:
This is something imposed on him.

[00:06:15] Speaker 01:
He was removed based on a drug test, which he said was surprising to him.

[00:06:19] Speaker 01:
He didn't think it was.

[00:06:20] Speaker 01:
He didn't smoke marijuana, and he was surprised by the test.

[00:06:23] Speaker 00:
But second, if they want to have prepayment as a condition of this right... A defendant, I'm sorry, a defendant in a case brought against it, but I assume, don't make them wrong, if the defendant wants to appeal, presumptively still needs to pay the filing fee for the appeal.

[00:06:42] Speaker 00:
That was imposed, the suit was certainly imposed on the defendant in any, that's why they're the defendant.

[00:06:48] Speaker 01:
Right.

[00:06:49] Speaker 01:
Putting aside, I'm not familiar with informal hoppers and when an important wave of fees.

[00:06:53] Speaker 01:
But yes, there are rights conditioned on payment.

[00:06:56] Speaker 01:
But when it's so important, they should state it explicitly.

[00:06:59] Speaker 01:
It wasn't in the guidelines.

[00:07:00] Speaker 01:
It wasn't in CBP's own drug testing policy.

[00:07:03] Speaker 01:
It wasn't in the medical review officer's guidance.

[00:07:07] Speaker 01:
And he was willing to.

[00:07:09] Speaker 00:
But it was on the CBP website?

[00:07:12] Speaker 01:
That's the only place it is on the website, yes.

[00:07:15] Speaker 01:
But again, they could have done it and charged him later, and then we may or may not even be here, depending on the results.

[00:07:20] Speaker 01:
Well, we don't accept filings without payment.

[00:07:23] Speaker 01:
I mean, you do it and charge him later, and then if he's being removed, what's the potential ability to recoup the money?

[00:07:29] Speaker 01:
I mean, and look, I'm looking at the guidelines on page 1118 of the appendix, and it says that a sample is to be retained for a minimum of a year for retesting.

[00:07:43] Speaker 01:
So your client may have some personal view that when they came back to him and offered him the retest after his confusion over payment, that it was too late and he was worried about the sample.

[00:07:54] Speaker 01:
But according to the actual Federal Register, it says the retesting can take place anytime and the sample has to be retained for that purpose for up to a minimum of a year.

[00:08:04] Speaker 01:
So why didn't, I don't understand, what is your rationale for how his rights were violated when they revisited

[00:08:11] Speaker 01:
his ability to retest, and he subsequently declined multiple additional times.

[00:08:15] Speaker 01:
What we were saying is rights were violated back at the beginning.

[00:08:18] Speaker 01:
You're right.

[00:08:18] Speaker 01:
His subjective view was that he was concerned about the degradation of the sample.

[00:08:22] Speaker 01:
That is a subjective belief.

[00:08:24] Speaker 01:
But we think the violation of the rights occurred eight and a half months previously when he said, I want to retest, willing to pay, and the arbitrator found.

[00:08:32] Speaker 01:
Yes, but why?

[00:08:32] Speaker 01:
OK, even if you were correct, which I do not give you that, but even if you were, there's things called harmless error.

[00:08:39] Speaker 01:
And when they came back and allowed for a retest eight and a half months later, when the guidelines explicitly say the sample can be retested for up to a year, why are his rights still violated?

[00:08:48] Speaker 01:
Why is it not harmless error?

[00:08:50] Speaker 01:
Even if he had that right, why is it not harmless error when they were willing to correct and do it at eight and a half months later?

[00:08:57] Speaker 01:
Well, again, we'd come back to the language saying it is his right, saying that he believed it should have been done eight and a half months previously.

[00:09:04] Speaker 01:
And that is, this isn't a complicated performance case with 10 different factors justifying his removal.

[00:09:09] Speaker 01:
There's one and only one piece of evidence supporting drugs.

[00:09:12] Speaker 01:
It's a very serious one.

[00:09:13] Speaker 01:
And I'm going to point out counsel.

[00:09:15] Speaker 01:
This may be a function of your and my respective age, which we share.

[00:09:19] Speaker 01:
You alleged that your client denied having smoked marijuana.

[00:09:22] Speaker 01:
Do you know that there are many ways to get marijuana into your body?

[00:09:26] Speaker 01:
edibles which are far more popular now with the kids than apparently smoking marijuana.

[00:09:30] Speaker 01:
Did you speak very precisely on purpose as he alleged or denied smoking marijuana or did he deny having consumed marijuana full stop in any capacity?

[00:09:39] Speaker 01:
Well I don't mean to be parsing language.

[00:09:41] Speaker 01:
We agree these CPPOs have an obligation to be drug free.

[00:09:45] Speaker 01:
We understand the importance of the policy and I didn't mean to parse it.

[00:09:48] Speaker 01:
I just can't remember offhand what exactly he said.

[00:09:50] Speaker 01:
I'm just saying he said something to the fact that he was surprised by the drug test.

[00:09:54] Speaker 01:
I mean he could have

[00:09:55] Speaker 01:
conceded, I suppose, right at the outset.

[00:09:57] Speaker 01:
That's just not what's in the record here.

[00:09:59] Speaker 00:
But I didn't need to be... The arbitrator on page two says, grievant denied he smoked or ingested marijuana.

[00:10:05] Speaker 02:
Did he, in fact, do that, or was that... I'd have to look back on his testimony and what exactly he said when he was... Counsel, a large part of your argument seems to be based on your reading of the arbitrator's opinion as having relied exclusively on the standard of whether the agency's conduct was arbitrary and capricious.

[00:10:25] Speaker 02:
And I'm wondering, the only place I see Arbitrary Patricia mentioned, maybe I'm missing something, is that very last paragraph of her opinion, right?

[00:10:36] Speaker 01:
That's correct.

[00:10:37] Speaker 01:
That's the only place it's mentioned.

[00:10:39] Speaker 01:
It's the only standard mentioned.

[00:10:40] Speaker 02:
So either she... And what was that standard applied to in your opinion?

[00:10:45] Speaker 01:
Well, I think it's unclear.

[00:10:46] Speaker 01:
The government would say it was applied to whether the removal was reasonable.

[00:10:51] Speaker 01:
And I would concede that it is the correct standard for that factor.

[00:10:56] Speaker 01:
But on whether the agency has proved its case, it needs to be preponderance of the evidence.

[00:11:00] Speaker 01:
And there's no dispute that language is not anywhere in the opinion.

[00:11:04] Speaker 02:
But there's no dispute that the party stipulated that.

[00:11:06] Speaker 02:
And there's no suggestion that the arbitrator deviated from that other than a statement about arbitrary and capricious at the end dealing with, as the government would say at least, arguably something different.

[00:11:19] Speaker 01:
We did agree on the standard, and she did find the agency proved its case.

[00:11:22] Speaker 01:
I would suggest that isn't enough.

[00:11:24] Speaker 01:
We are still gleaning from the context whether she used the right standard or not, and we're not supposed to have to guess at her reasoning.

[00:11:31] Speaker 01:
It's only two pages of reasoning.

[00:11:33] Speaker 01:
I would suggest you could have elaborated on what standard she was using and how the evidence supported the agency's decision.

[00:11:40] Speaker 02:
Well, this wasn't that complex a record, right?

[00:11:44] Speaker 02:
I mean, the firing, the removal was for the test that showed that he had ingested marijuana.

[00:11:51] Speaker 02:
That was the beginning and the end of the case, right?

[00:11:55] Speaker 01:
Yes, but nevertheless, she is silent on what standard she used.

[00:11:59] Speaker 01:
She's either wrong or silent on what standard she used for whether the agency had proven its case.

[00:12:04] Speaker 01:
And we think there is case law saying we're not all supposed to

[00:12:08] Speaker 01:
guess at what an arbitrator or a lower fact finder meant.

[00:12:13] Speaker 01:
I would just touch on my last argument about the due process argument, which is that the agency relied on Mr. McDay's decision to decline the late offer of the retest.

[00:12:26] Speaker 01:
The arbitrator's decision on this is solely based on the removal letter, not any of the testimony.

[00:12:32] Speaker 01:
And the removal letter mentions his declamation of the retest

[00:12:35] Speaker 01:
twice in the substantive discussion of what she is using to support the decision.

[00:12:41] Speaker 01:
And I will reserve the remainder of my time.

[00:12:43] Speaker 01:
Okay, thank you.

[00:12:49] Speaker 01:
Ms.

[00:12:49] Speaker 01:
Finani?

[00:13:12] Speaker 03:
Good morning, Your Honors.

[00:13:13] Speaker 03:
May it please the court?

[00:13:15] Speaker 03:
Mr. McDade has failed his burden to establish that the arbitrator committed a reversible error in her decision in this case.

[00:13:23] Speaker 03:
First, given the limited issues presented to the arbitrator and the specific findings, we can reasonably infer that the arbitrator held the agency to the correct standard of proof.

[00:13:35] Speaker 03:
The, as Your Honors pointed out, both parties stipulated as to the appropriate burden of proof.

[00:13:43] Speaker 03:
The agency clearly had to prove by preponderance of the evidence that the charge conduct occurred.

[00:13:49] Speaker 03:
The charge conduct here was testing positive for a controlled substance in a random drug test.

[00:13:55] Speaker 03:
Here, the arbitrator found that this was an undisputed fact.

[00:14:00] Speaker 03:
On page two of the appendix, as well as page four,

[00:14:05] Speaker 03:
She states that vaccines matter are not very much in dispute.

[00:14:09] Speaker 03:
On August 24, 2018, Mr. Mustic.

[00:14:12] Speaker 00:
I'm not sure I heard you correctly.

[00:14:15] Speaker 00:
The conduct is the smoking or ingestion.

[00:14:19] Speaker 00:
The conduct is not the test result.

[00:14:22] Speaker 00:
It's just that the test result is the only evidence of the conduct.

[00:14:25] Speaker 00:
And in the absence of anything else, it's essentially conclusive.

[00:14:28] Speaker 03:
That is correct, Your Honor.

[00:14:30] Speaker 03:
Well, the arbitrator also found that Mr. McDae's lab results from this test showed that he tested positive for marijuana.

[00:14:37] Speaker 03:
The actual validity of the test was not challenged.

[00:14:40] Speaker 03:
Now whether the agency complied with the regulations, with the guidelines, and whether that should have resulted in the exclusion of the test result, that was a separate legal issue.

[00:14:49] Speaker 03:
Additionally, Mr. McDae never even challenged the

[00:14:55] Speaker 03:
second prong, which is the nexus requirement.

[00:14:59] Speaker 03:
Mr. McDade submitted a 34-page post-hearing brief in which there is no argument regarding whether the agency proved that there was a nexus between the misconduct and the efficiency of the service.

[00:15:11] Speaker 03:
Therefore, the arbitrator did not explicitly mention this issue.

[00:15:17] Speaker 03:
Finally, the agency had to prove that the penalty of removal was reasonable.

[00:15:23] Speaker 03:
Again, it was undisputed that Douglas v. Veterans Administration informs this inquiry.

[00:15:29] Speaker 03:
Pursued to Douglas, the arbitrator properly considers whether an agency-imposed penalty was clearly excessive or arbitrary

[00:15:39] Speaker 03:
capricious or unreasonable.

[00:15:41] Speaker 00:
Can I ask you this question?

[00:15:43] Speaker 00:
So there's a factual question.

[00:15:47] Speaker 00:
Did the individual commit the conduct alleged?

[00:15:52] Speaker 00:
Then there's a question about nexus to the efficiency of the service.

[00:15:57] Speaker 00:
And then there's a question, as you just put it, reasonableness of the penalty.

[00:16:04] Speaker 00:
The arbitrator

[00:16:05] Speaker 00:
uses the language of arbitrary capricious in connection with, well, she uses the phrase, the efficiency of the service.

[00:16:17] Speaker 00:
That's right.

[00:16:19] Speaker 00:
The person's removal will promote the efficiency of the service.

[00:16:25] Speaker 00:
Was it at step two or at step three or what?

[00:16:29] Speaker 03:
This was in step three.

[00:16:31] Speaker 03:
That statement she made following her discussion of the Douglas Factors.

[00:16:37] Speaker 03:
If we look at the arbitrator's decision as a whole, she found the first two prongs were essentially undisputed.

[00:16:44] Speaker 03:
So the third prong is whether the penalty imposed was reasonable.

[00:16:49] Speaker 03:
And there's a difference between the burden of proof, which is the evidentiary standard to prove the underlying facts,

[00:16:56] Speaker 03:
And then the standard of review, which is what is also involved here in that third prong, which is whether the agency selection of the penalty was reasonable.

[00:17:07] Speaker 03:
The agency has considerable discretion in selecting the penalty once all the underlying facts are determined.

[00:17:14] Speaker 03:
So although the arbitrator did not specifically mention the preponderance of the evidence burden of proof, that was unnecessary in this case considering the fact that it was undisputed that that is a appropriate burden.

[00:17:29] Speaker 03:
It's also the lowest burden in a civil proceeding.

[00:17:32] Speaker 00:
Does our case law sometimes never always connect the Douglas language about the penalty to the efficiency of the service standard of 7513 or whatever it is?

[00:17:48] Speaker 00:
Or does that efficiency of the service language disappear once the discussion of removal and its justification begins?

[00:17:56] Speaker 03:
Well, Your Honor, the efficiency of the service is under Chapter 75 that the agency can only remove an employee if it promotes the efficiency of the service.

[00:18:07] Speaker 03:
And to make that showing, then we have the three prongs that I just mentioned.

[00:18:12] Speaker 03:
So they are not necessarily mutually exclusive.

[00:18:21] Speaker 03:
And additionally, even if the arbitrators

[00:18:24] Speaker 03:
decision is less than ideally clear if her reasoning is, if her path is reasonably discerned, then the court can nonetheless affirm the arbitrator's decision.

[00:18:35] Speaker 03:
Second, Mr. McDae fails to provide any authority that would justify exclusion of his primary test result.

[00:18:42] Speaker 03:
First, he does not dispute the validity of the test result or whether the agency complied with the guidelines in collecting and testing and storing the initial specimen.

[00:18:55] Speaker 03:
He also provides no authority for the proposition that an agency must cancel the results of the initial test if an employee simply refuses to pay.

[00:19:06] Speaker 03:
As Dr. Moore mentioned, the guidelines are silent on who is responsible for paying the split specimen test.

[00:19:17] Speaker 03:
When the drafters of the guidelines initially introduced this police specimen testing into their regulations in 1994, they specifically contemplated whether there should be a requirement in the guidelines if whether the employee or the agency decides or should pay for the specimen testing.

[00:19:39] Speaker 03:
We cited the Federal Register, 59 Federal Register, 29908.

[00:19:45] Speaker 03:
There, the drafters declined to specify and left it to the agency's discretion on who should pay for the test results for the split specimen testing.

[00:19:58] Speaker 03:
The case law upon which Mr. McDae relied on his brief to essentially try to argue that the agency should have canceled his test result, one, does not address the issue of payment, and two, those cases also concern regulations by the Department of Transportation,

[00:20:19] Speaker 03:
there the regulations specifically required the agency to pay for the specimen testing.

[00:20:26] Speaker 03:
And in contrast here, the agency had a policy of more than 10 years to require the employees to pay for the specimen testing.

[00:20:39] Speaker 03:
Additionally,

[00:20:41] Speaker 03:
As Dr. Seranto mentioned earlier, that was going to be one of my examples that even though the regulations may characterize the split-specimen testing as a right, it nowhere mentions that this is an absolute right.

[00:20:58] Speaker 03:
And in life, we're entitled to certain rights.

[00:21:02] Speaker 03:
For instance, the due process provides a litigant an opportunity to appeal a case.

[00:21:08] Speaker 03:
However, that does not mean

[00:21:09] Speaker 03:
that the litigant cannot be required to pay certain filing fees before exercising that right.

[00:21:17] Speaker 03:
And Mr. McDay mentioned that in this case, just as a criminal defendant might wish to appeal his conviction, so here Mr. McDay

[00:21:37] Speaker 03:
had the possibility to pay a $115 fee to obtain potentially exulgatory evidence to challenge his removal.

[00:21:50] Speaker 03:
Third, Mr. MacDais failed to establish that the arbitrator erred when she concluded that she lacked the authority to consider the issue of whether the agency's policy of requiring the payment was lawful.

[00:22:01] Speaker 03:
that there was a procedure in place by which the parties were required to submit their issues before the arbitrator.

[00:22:08] Speaker 03:
Twenty days before the hearing, the parties were required to submit either their issues jointly or if they could not agree separately, here the arbitrator specifically adopted Mr. McDays' phrasing of the issues and the issue of the legality of the agency's policy was not presented for decision.

[00:22:26] Speaker 00:
And that's the sole basis on which you think the arbitrator said she didn't have the authority to address the question, not something like arbitrators don't get to say whether the agency is acting illegally or something.

[00:22:41] Speaker 03:
Yes, that is our position.

[00:22:43] Speaker 03:
She did say that she lacked the jurisdiction to consider the issue based on the

[00:22:50] Speaker 03:
based on the issues presented, or I could find the exact quote, but she specifically mentioned that based on the issues presented, she liked jurisdiction.

[00:23:00] Speaker 00:
Can I ask you a different question, which I don't think we heard about this morning, which is whether the deciding official

[00:23:09] Speaker 00:
did in fact rely on the repeated refusal to have the split sesame tested.

[00:23:21] Speaker 00:
I know that your position is that the deciding official did not in fact rely so that whether

[00:23:30] Speaker 00:
there was a notice problem that doesn't arise.

[00:23:32] Speaker 00:
Do you agree that if the deciding official had relied on that, that there would be a notice problem, say, under the Doe case, D-O, or do, I don't know if that makes sense.

[00:23:48] Speaker 00:
That notice was not given.

[00:23:52] Speaker 00:
We plan to rely on this evidence.

[00:23:57] Speaker 03:
Well, Your Honor, we would posit that it

[00:24:00] Speaker 03:
Even if the decision maker, which his testimony clearly states that he did not consider this evidence.

[00:24:09] Speaker 03:
The testimony, right?

[00:24:10] Speaker 00:
Sure.

[00:24:10] Speaker 00:
They rely on what the letter says.

[00:24:14] Speaker 03:
Even if he had relied on this information, that would still not amount to due process violation under the circumstances of this case, because Mr. McDay had notice of the existence of this information and opportunity to respond.

[00:24:29] Speaker 03:
In April and May of 2019, communications between the agency and Mr. McDay, which are set forth in Appendix 1442 through 1446, show that the agency provided him the two opportunities to get the split specimen tested, and he declined both offers.

[00:24:49] Speaker 03:
On both emails in which he declined the offers, Mr. McDay, through his union representative, provided a half page of text describing in details the reasons

[00:25:02] Speaker 03:
for declining the split specimen testing.

[00:25:05] Speaker 03:
Thus, he had notice and opportunity to respond to this information.

[00:25:09] Speaker 03:
Additionally, the proposal notice noted that Mr. McDae had requested the split specimen testing, but

[00:25:21] Speaker 03:
As of that date, he had not yet paid for it and therefore no second test was conducted.

[00:25:27] Speaker 03:
So even in the proposal letter, this issue was mentioned.

[00:25:31] Speaker 03:
He had the opportunity in both oral replies to address it and chose not to do so.

[00:25:41] Speaker 03:
Or I'm sorry, not that he chose not to address it, but he chose not to get the test and sufficiently provided his reasons

[00:25:50] Speaker 03:
why he did not want to do so.

[00:25:52] Speaker 00:
And he was represented by the union representative at that point, right?

[00:26:02] Speaker 03:
He was represented.

[00:26:03] Speaker 03:
The notice of proposal removal was sent to him on October 17, 2018, the following day the agency sent Mr. McDay

[00:26:13] Speaker 03:
and his union representative, all the materials relied upon.

[00:26:16] Speaker 03:
So at least as of the date following his proposed removal, he was represented by counsel.

[00:26:23] Speaker 03:
Based on these reasons and those articulated in our brief here on our suite, we would respectfully request that you affirm the arbitrator's decision.

[00:26:30] Speaker 01:
Thank you.

[00:26:31] Speaker 01:
Thank you.

[00:26:32] Speaker 01:
Ms.

[00:26:32] Speaker 01:
Chiles, you have rebuttal time.

[00:26:36] Speaker 01:
Sorry.

[00:26:46] Speaker 01:
Thank you.

[00:26:47] Speaker 01:
Just two small points just to make sure the timelines clear.

[00:26:50] Speaker 01:
His proposed removal letter was October of 2018.

[00:26:53] Speaker 01:
His declination of the late offer of the retest occurred in April and May of 2019, so those were not mentioned in the proposed removal letter.

[00:27:02] Speaker 01:
And second, counsel refers to the testimony of the deciding official on what he relied on.

[00:27:06] Speaker 01:
The arbitrator does not cite to that.

[00:27:08] Speaker 01:
She only relies on the removal letter itself, which I think speaks for itself.

[00:27:13] Speaker 01:
And happy to respond to any more questions, otherwise we'll rely on our briefs.

[00:27:17] Speaker 01:
Thank you counsel.

[00:27:20] Speaker 01:
This case is taken under submission.