[00:00:00] Speaker 02:
Mr. Berger.

[00:00:03] Speaker 03:
Yes, thank you very much.

[00:00:06] Speaker 03:
This case does raise quintessential factual issues all the way through.

[00:00:11] Speaker 03:
We understand what the substantial evidence standard is, but our position here is that looking at this record as a whole with respect to the thing that supports each of the reasonings in this case, the record certainly in our view detracted from

[00:00:28] Speaker 03:
the weight of the evidence relied upon by the board.

[00:00:32] Speaker 03:
We have evidence here that is cited in our brief that was wholly ignored by the board that indicates that these reasons should not have been sustained and we don't believe substantial evidence supports the various reasons.

[00:00:46] Speaker 03:
With respect to reason one, which has to do with the misuse of a government vehicle, understanding that this is a statutory misuse charge

[00:00:56] Speaker 03:
requires a proof of an element of willfulness.

[00:01:00] Speaker 03:
I suppose the issue here is whether, how do we gauge the state of mind of an employee where you have an agency with a national policy that has a certain policy regarding government vehicle use, restrictions, et cetera, and if we have a deviation from that policy in a local office where the employees such as Meisenheimer

[00:01:25] Speaker 03:
as well as the supervisor together have authorized his use of this government vehicle for the purposes that were established at the hearing.

[00:01:36] Speaker 03:
And we know from the record in this case that Mr. Meisenheimer's use of that government vehicle was utterly open, was utterly obvious.

[00:01:47] Speaker 03:
He recorded it faithfully in his vehicle logs.

[00:01:53] Speaker 03:
We know that the supervisor

[00:01:55] Speaker 03:
Mr. Testa Verde testified that he reviewed those vehicle logs on a monthly basis, that he actually signed off on them.

[00:02:02] Speaker 03:
He was aware, he says, and he looked for the destinations of Mr. Meisenheimer, and he never counseled him.

[00:02:10] Speaker 03:
He never told him to stop.

[00:02:13] Speaker 03:
We also have evidence in the record not only that Mr. Testa Verde, the supervisor at Appendix 120,

[00:02:20] Speaker 03:
uh... was aware of that you know he was reporting in his view of vehicle he was going uh... on these personal appointments that he also indicated that he was uh... accommodating uh... mister my son hi my that's an appendix one hundred and thirty that he made accommodations for him to attend a personal appointments so when we're dealing with issues where the local supervisor uh... and the employee together have a mutual understanding

[00:02:48] Speaker 03:
that it is appropriate and okay to use the government vehicle for the use that you assume.

[00:02:54] Speaker 00:
This is Judge Stoll.

[00:02:56] Speaker 00:
You know, one thing I'm thinking about with hearing what you're saying is, at appendix page A17, something that the board said was that in observing Testa Verde, I found his demeanor consistent with providing truthful testimony.

[00:03:10] Speaker 00:
He came across as thoughtful and forthcoming.

[00:03:12] Speaker 00:
Ultimately, I found Testa Verde's testimony denying he ever gave the appellant permission to use his

[00:03:18] Speaker 00:
government-authorized vehicle to drive to personal appointments far more credible than the appellant's testimony, the contrary.

[00:03:24] Speaker 00:
I mean, I'm having a hard time.

[00:03:27] Speaker 00:
I understand the facts that you're pointing out, but we also have this credibility determination combined with Mr. Testaberti's testimony denying that he ever gave appellant permission to use his government-authorized vehicle in the way that he was using it.

[00:03:44] Speaker 03:
I understand that.

[00:03:45] Speaker 03:
Appendix 130, I would only point out at the very bottom, Appendix 130, lines 24 and 25, Mr. Testaverde was asked specifically about those accommodations, and he said, and he may have seen those accommodations to include the use of the GOV, which was never addressed.

[00:04:06] Speaker 03:
Okay.

[00:04:07] Speaker 03:
So we don't have an explicit authorization, but certainly the behavior of Mr. Testaverde

[00:04:14] Speaker 03:
Clearly, in our view, implied that he authorized it because he had knowledge of the use.

[00:04:20] Speaker 03:
He did check the logs on Appendix 120.

[00:04:26] Speaker 03:
He indicates that he viewed all the vehicle logs for the accuracy of destinations.

[00:04:32] Speaker 03:
He said that Meitenheimer might have understood that the use of the GOV was okay, although I never addressed it.

[00:04:42] Speaker 03:
So the question is whether the implied authorization or tacit authorization or even condoned authorization would serve here to undermine that credibility determination.

[00:04:56] Speaker 03:
And that's what the point of this brief is.

[00:04:57] Speaker 03:
I understand that she's observing demeanor.

[00:05:00] Speaker 03:
The judge is observing demeanor.

[00:05:02] Speaker 03:
But the judge can't ignore the testimony, this rather hesitant testimony, Mr. Testaverde, in which he indicates that on a day-to-day basis,

[00:05:12] Speaker 03:
Well, he may have understood that he could use the GOV.

[00:05:14] Speaker 03:
When did he come to that understanding?

[00:05:16] Speaker 03:
When did he come to that understanding?

[00:05:18] Speaker 00:
Well, how am I supposed to review credibility determinations when it's based on demeanor?

[00:05:24] Speaker 00:
I mean, there are Supreme Court cases that say those are virtually unredeemable, right?

[00:05:29] Speaker 00:
As an appellate court, I'm just looking at a paper record.

[00:05:32] Speaker 00:
And how can somebody on a paper record make a credibility determination that's contrary to the fact finder that actually got to see the witness?

[00:05:41] Speaker 03:
I could only say that.

[00:05:42] Speaker 03:
the caveat of virtual suggests that there's room for making a separate assessment and relying on Mr. Testaverde's own testimony, it belies that credibility determination.

[00:06:01] Speaker 03:
If on page 120 of the appendix that he views, where you have an employee who is disclosing

[00:06:12] Speaker 03:
obviously like a neon sign going on and off to his supervisor that I'm going to these seven personal appointments.

[00:06:19] Speaker 03:
And the supervisor attest that he looked at those vehicle logs and said nothing and understood the vehicle logs, signs off on them and says nothing.

[00:06:27] Speaker 03:
And then he says, I even made an accommodation for him to go to those personal appointments.

[00:06:32] Speaker 03:
And he might've thought that he could use the GOV.

[00:06:35] Speaker 03:
I didn't address it.

[00:06:35] Speaker 03:
I understand that.

[00:06:37] Speaker 03:
So in a situation like that, I think the cold transcript

[00:06:41] Speaker 03:
does undermine that credibility determination.

[00:06:44] Speaker 00:
I remember correctly that there were a few emails that were sent to your client that told him that he was not to be using his vehicle in that manner for personal use, right?

[00:06:54] Speaker 00:
He did have a couple emails.

[00:06:56] Speaker 00:
He received a couple emails that told him that point blank, right?

[00:07:00] Speaker 03:
Yeah, there was one email that the agency relies on.

[00:07:05] Speaker 03:
But the email of December 17th of 2017, which was after

[00:07:11] Speaker 03:
all the use issues.

[00:07:13] Speaker 03:
But there's no, and that was after all the use issues, and apparently that email was given, you know, was sent to him at that time because of the use issue.

[00:07:27] Speaker 03:
I believe that's at Appendix 252, yes.

[00:07:30] Speaker 03:
There's an employee counseling email of December 7th, 2017 at Appendix 252, and it comes from Mr. Lagerway, a supervisor who's

[00:07:40] Speaker 03:
not in the local office.

[00:07:42] Speaker 03:
And the way that we understood this email was that apparently there was some confusion concerning the use of the GOV, and this email sorted it out once and for all.

[00:07:54] Speaker 00:
We're not disputing that... 2017, right?

[00:07:56] Speaker 00:
December 7, 2017 email?

[00:07:59] Speaker 03:
Okay.

[00:07:59] Speaker 03:
Right, right, right.

[00:08:00] Speaker 03:
So that came afterwards, after all the misuse allegations.

[00:08:04] Speaker 03:
But nevertheless, our position is that

[00:08:07] Speaker 03:
We understand it as a nationwide, agency-wide policy.

[00:08:10] Speaker 03:
The real issue, I think in this case, and I know in this case, is what happens if we have a deviation, and what does that say about willfulness?

[00:08:18] Speaker 03:
What does that say about his state of mind?

[00:08:21] Speaker 03:
Yeah, maybe he made a mistake, and maybe he was even negligent.

[00:08:25] Speaker 03:
But the question is, was he willful or reckless to the point that he doubted the propriety of his own actions?

[00:08:32] Speaker 03:
And all I'm saying is that somebody who's so transparent about what he's doing and telling his supervisor every day what he's doing, I don't think doubted that in his state of mind.

[00:08:42] Speaker 03:
That's why I don't think the statutory misuse is proven in this case.

[00:08:47] Speaker 03:
And, you know, likewise, we have the second charge, you know, which was the inaccurate reporting of the sustained specifications.

[00:08:58] Speaker 03:
And we had 12 specifications sustained.

[00:09:01] Speaker 03:
And you know, we have the same problem, which is that you have a supervisor that seems to be going along, right?

[00:09:07] Speaker 03:
Going along and accommodating this employee.

[00:09:11] Speaker 03:
And only in a look back, we use the word post hoc in this previous arguments, only in a look back are we saying he did something wrong.

[00:09:20] Speaker 03:
But at the time, this employee understood that the supervisor was accommodating him for his personal appointments.

[00:09:29] Speaker 03:
And as the supervisor says on page, again, Appendix 130, he says, I have it right here, I just went over it before, it's right here, it's, you made accommodations, Appendix 130, line 20, you made accommodations, answer yes, that's correct, that's correct, and he may have seen those accommodations to include the use of a GOV, but he made accommodations.

[00:09:56] Speaker 03:
So we're back to the issue of, okay,

[00:09:58] Speaker 03:
We, our guy is, Meisenheimer is reporting his personal visits on his time and attendance sheets.

[00:10:04] Speaker 03:
He's not, he's not concealing them.

[00:10:07] Speaker 03:
He's not pressing them.

[00:10:09] Speaker 03:
He's not, he's not... Well, that was quick.

[00:10:13] Speaker 03:
Okay.

[00:10:13] Speaker 03:
I'll run through the rest if that's okay.

[00:10:16] Speaker 03:
Is that all right?

[00:10:18] Speaker 03:
You'll what through the rest?

[00:10:20] Speaker 03:
Can I go through the rest of my argument if I keep it?

[00:10:23] Speaker 02:
Sure.

[00:10:24] Speaker 03:
Well, right now you're using your rebuttal time.

[00:10:26] Speaker 02:
Okay.

[00:10:27] Speaker 03:
All right.

[00:10:27] Speaker 03:
Thank you.

[00:10:27] Speaker 03:
I'm going to go through the rebuttal time then.

[00:10:29] Speaker 03:
Anyway, my point is that the accommodation issue is of the same.

[00:10:33] Speaker 03:
The reason three has to do with the violation of internal policies when he helped to interdict a gate runner at the Port of Alaska.

[00:10:45] Speaker 03:
And my only point there is that I don't think that anyone would expect a paid law enforcement officer paid to

[00:10:52] Speaker 03:
working to confront hazards, to stand mute, where you have a gate runner that's eluding security on a bike and a backpack, running in a secure area, the Port of Alaska, towards, they thought, fuel tanks, and at two or three seconds that Meisenheimer had to assess whether, in fact, this was a threat or not.

[00:11:12] Speaker 03:
He acted in order to help interdict this gate runner.

[00:11:16] Speaker 03:
He was requested for help by the captain of the Port of Security, Port of Alaska,

[00:11:22] Speaker 03:
and that's at appendix 118 that corroborates that he was requested to help.

[00:11:27] Speaker 03:
He did help and I pointed out that the agency policy in fact allows the intervention, the response of their law enforcement officers for emergencies and that means gratuitous responses and he did so and it was consistent with policy.

[00:11:46] Speaker 03:
So he didn't stand mute, he did what he was asked to do by the captain

[00:11:50] Speaker 03:
And he intervened to help stop a gate runner who was eluding security.

[00:11:58] Speaker 03:
Reason four has to do with the unlawful possession of marine mammal parts.

[00:12:03] Speaker 03:
I'll only say this.

[00:12:04] Speaker 03:
I believe that at the wrong charge, the record shows that he had the right to collect the mammal parts.

[00:12:10] Speaker 03:
He just didn't register them within 30 days of collection.

[00:12:15] Speaker 03:
He's charged with unlawful possession.

[00:12:17] Speaker 03:
So if someone collects the mammal parts but doesn't register them,

[00:12:21] Speaker 03:
Does that mean that they don't lawfully possess them?

[00:12:23] Speaker 03:
We don't believe that possession has been shown to be unlawful.

[00:12:26] Speaker 03:
He just failed to register.

[00:12:28] Speaker 03:
He's charged with unlawful possession, not failed to register.

[00:12:33] Speaker 03:
And lastly, the lack of candor charge, that goes back to the issue of his use of the government vehicle.

[00:12:40] Speaker 03:
He understood, we understand with lack of candor, that state of mind

[00:12:46] Speaker 03:
uh... evidences necessary because of knowing this element to uh... candor did he know that he was deceiving anyone when he felt that common practice uh... allowed for the uh... use of the g-riders he did and did he lie when he said he had authority to go on personal appointments well based on his supervisors behavior uh... the uh... meisenheimer could have believed in all sincerity that he was allowed to do so and that he was authorized to do so

[00:13:13] Speaker 03:
So the record of factual issues in this case detract from the weight of the evidence relied upon by the agency.

[00:13:22] Speaker 03:
And we ask that you reverse this.

[00:13:25] Speaker 02:
This is Judge Turner.

[00:13:25] Speaker 02:
Can I just ask you a clarifying question?

[00:13:30] Speaker 02:
On the mammal parts piece, was failure to register the only wrong as to each of the mammal

[00:13:42] Speaker 02:
or was at least one that he wasn't allowed to take in the first place.

[00:13:47] Speaker 03:
That is my interpretation of the record is that's correct.

[00:13:53] Speaker 03:
There was a question as to whether he had actually collected an endangered species, but that was not resolved and it was not found in this record to have happened.

[00:14:03] Speaker 03:
The deciding official testified that he did not make a finding that he collected an endangered species.

[00:14:11] Speaker 03:
And we have that here.

[00:14:18] Speaker 03:
So the only issue is if he were to register.

[00:14:20] Speaker 03:
But he's not charged with failure to register.

[00:14:22] Speaker 03:
So that's why we believe the charge can't be supported.

[00:14:28] Speaker 02:
OK.

[00:14:30] Speaker 02:
Why don't we hear from his motto now?

[00:14:34] Speaker 03:
Yep.

[00:14:34] Speaker 02:
Thank you.

[00:14:37] Speaker 01:
Good morning, Your Honors, and may it please the Court and motto on behalf of the United States.

[00:14:43] Speaker 01:
This Court should affirm the MSPB's decision because substantial evidence supports the Board's conclusion that the Department of Commerce proved all five charges of misconduct against Mr. Meisenheimer by a preponderance of the evidence and that the penalty of removal was within the bounds of reasonableness.

[00:14:59] Speaker 01:
As to the first charge misuse of a government vehicle, Mr. Meisenheimer was warned in writing and orally before the misconduct of misusing his government vehicle in 2017, not just after.

[00:15:13] Speaker 01:
At appendix 168, there is an email from May 12, 2016 from his direct supervisor, David Testaverde.

[00:15:22] Speaker 01:
And in the last paragraph, he says, please keep in mind that you have- What are you reading from, please?

[00:15:27] Speaker 01:
Oh, I'm reading from the last paragraph of Appendix 168, Your Honor.

[00:15:31] Speaker 02:
168, thank you.

[00:15:32] Speaker 02:
168, yeah.

[00:15:34] Speaker 01:
And please keep in mind that you have home-to-work authorization for your government vehicle.

[00:15:39] Speaker 01:
It is for work purposes, government use only.

[00:15:42] Speaker 01:
It is not meant for you to take to make repeat trips to include personal use.

[00:15:48] Speaker 01:
This may be considered abuse of this privilege or even misuse of a government vehicle.

[00:15:53] Speaker 01:
So he was warned prior to the misconduct in 2017 that serves as the basis of his charge.

[00:15:59] Speaker 01:
He was again warned on May 14, 2017, so during the time that he was committing the misconduct, that his second-level supervisor, Nathan Blagerway, emailed him.

[00:16:12] Speaker 01:
This is at Appendix 169.

[00:16:14] Speaker 01:
And his second level supervisor told him that he was again not allowed to use his government vehicle for personal use because the policy clearly provides that employees may not deviate from their direct route except for going on a meal break.

[00:16:28] Speaker 01:
So he was warned prior to the misconduct in 2017.

[00:16:33] Speaker 01:
Mr. Meisenheimer repeatedly claimed that he was given either an explicit approval or an accommodation to drive his government vehicle to personal appointment.

[00:16:44] Speaker 01:
But as Judge Sol asked Mr. Berger during his argument, the ALJ very thoroughly weighed the credibility of both individuals, Mr. Meisenheimer and his supervisor, and she found that his supervisor's testimony was more credible under the circumstances, and she did not find that Mr. Meisenheimer's testimony was credible.

[00:17:03] Speaker 01:
And she thoroughly explained why she found his testimony not to be credible.

[00:17:08] Speaker 01:
At appendix 12 and 13 and 14 of the board's decision, the ALJ explained that Mr. Meisenheimer's testimony was inconsistent with the plain text of the policy.

[00:17:20] Speaker 01:
The prior written warnings that he received, he didn't present any other evidence that other officers did this or testimony from other officers corroborating his statements.

[00:17:31] Speaker 01:
And as to the issue of state of mind, for misuse of a government vehicle, willful use can be shown that an employee acted in reckless disregard for whether the use would be non-official.

[00:17:45] Speaker 01:
And here, the ALJ found that the warnings Mr. Meisenheimer received should have raised a significant question in his mind whether his use was permissible, and that his failure to follow along.

[00:17:56] Speaker 02:
Ms.

[00:17:56] Speaker 02:
Dorado, this is Ms.

[00:17:57] Speaker 02:
Dorado.

[00:17:58] Speaker 02:
With respect to, I guess it's the second charge,

[00:18:01] Speaker 02:
What was the testimony by Mr. Testaverde and what was the administrative judge's finding about the daily logs?

[00:18:15] Speaker 01:
The logs that Mr. Meisenheimer wrote about the implicit condemnation, is that what you're asking, Your Honor?

[00:18:22] Speaker 02:
Yes.

[00:18:23] Speaker 01:
Sure.

[00:18:24] Speaker 01:
So at appendix 19 of the judges, the ALJ's decision,

[00:18:30] Speaker 01:
The judge did not ignore Mr. Meisenheimer's claim of implicit condemnation.

[00:18:34] Speaker 01:
The ALJ did acknowledge that Mr. Meisenheimer's logs disclose driving the vehicle to the hospital and appointments, but she found more compelling supervisor Testa Verde's statement that, you know, his approach to managing Mr. Meisenheimer was hands-off and that he did not know he was using his government vehicle for personal use.

[00:18:55] Speaker 01:
And that's consistent with Appendix 114 and 115.

[00:19:00] Speaker 01:
That's a March 2019 memorandum of an interview that Department of Commerce took of Supervisor Testiverde where he again said he thought that Mr. Meisenheimer was taking his personal vehicle to these appointments.

[00:19:16] Speaker 01:
And, you know, Mr. Berger did say

[00:19:19] Speaker 01:
on during his argument that, you know, Mr. Meisenheimer.

[00:19:23] Speaker 02:
I'm a little confused.

[00:19:24] Speaker 02:
So there's use of the vehicle and then there's reporting time and attendance, which seem to me two separate things.

[00:19:32] Speaker 02:
And I guess I just need to understand a little bit better than I do at the moment what Mr. Testaverde testified about, what he knew about either one of those from the logs that I gather it was his job to review.

[00:19:49] Speaker 01:
Yes, Your Honor.

[00:19:50] Speaker 01:
He testified, and that's at Appendix 130, the testimony that Mr. Berger was pointing to.

[00:19:57] Speaker 01:
He testified that he allowed Mr. Meisenheimer to go to personal appointments during the day as long as he took leave, flexed his day, or made up the time.

[00:20:08] Speaker 01:
But he never authorized Mr. Meisenheimer to take his government vehicle to these appointments or work less than eight hours.

[00:20:16] Speaker 02:
So I think, you know... I'm still not at least understanding the responsiveness.

[00:20:22] Speaker 02:
What did Mr. Verdin say about what was on Mr. Meisenheimer's logs?

[00:20:34] Speaker 01:
He reviewed the logs and signed them.

[00:20:38] Speaker 01:
That's true.

[00:20:39] Speaker 01:
And the ALJ acknowledged that, you know, that doesn't make his supervisor look very good.

[00:20:43] Speaker 01:
That, you know, he did sign these logs, but what his supervisor testified to was just based on the logs that say hospital and VA and appointments, he did not know that he was driving his vehicle, his government vehicle to those appointments.

[00:20:59] Speaker 02:
But he did know that that was, that that time was counted in, I'm just going to make up this figure, the eight hour workday.

[00:21:08] Speaker 01:
No, he did not.

[00:21:09] Speaker 01:
He never allowed Mr. Meisenheimer to work eight hours less.

[00:21:13] Speaker 01:
He testified that in reviewing the law of

[00:21:18] Speaker 01:
he didn't know that he was doing either of those things.

[00:21:20] Speaker 01:
And I do think it's worth pointing out that the logs, and you can see them at Appendix 146, 151, 152, these are the example logs that his supervisor was looking at.

[00:21:33] Speaker 01:
They only say that Mr. Meisenheimer was going to VA or hospitals, you know, just one word.

[00:21:40] Speaker 01:
They do not say, for example, I took my wife to a medical appointment in my

[00:21:43] Speaker 01:
you know, government vehicle.

[00:21:45] Speaker 02:
Can I just ask which topics?

[00:21:49] Speaker 02:
This middle charge, number three, about turning on the sirens and lights to help the Port of Alaska's authorities when there seemed to be an urgent threat.

[00:22:07] Speaker 02:
Justify that for me.

[00:22:09] Speaker 02:
It seems on its face rather strange.

[00:22:13] Speaker 01:
Sure, Your Honor.

[00:22:14] Speaker 01:
So the third charge is that he violated OLE policy, and specifically the policy is 5.2.4 C and G, which can be found at appendix 268 and 269.

[00:22:26] Speaker 01:
And those policies prohibit vehicle pursuits of all kinds, as well as conducting stops with emergency lights and sirens.

[00:22:34] Speaker 01:
Mr. Meisenheimer was previously suspended in 2013 for exceeding his authority as an enforcement officer when he initiated a traffic stop with emergency lights and sirens.

[00:22:45] Speaker 01:
And his suspension documents, they're at appendix 157 and 158,

[00:22:49] Speaker 01:
do explicitly say that policy is clear that he is not allowed to stop vehicles, and that is not within his scope of duty.

[00:22:55] Speaker 01:
His duty is limited to patrolling the marina, and he enforces wildlife and fishery regulations.

[00:23:02] Speaker 01:
He is not a state police officer, and the rules, you know, the policy makes clear that he is not allowed to use his government vehicle, initiate the license sirens, and actually conduct a vehicle stop.

[00:23:12] Speaker 01:
That is not within his authority.

[00:23:15] Speaker 01:
And Mr. Meisenheimer's own incident report that he drafted, which can be found at appendix 189, he admits outright that he knew he didn't have authority, and he initially told the requesting captain that he did not have authority to do so, but that he nonetheless persisted in assisting the security in apprehending this biker.

[00:23:37] Speaker 01:
And the ALJ did take into account Mr. Meisenheimer's

[00:23:44] Speaker 01:
claimed that he believed the biker to be a credible threat.

[00:23:48] Speaker 01:
Again, the ALJ made a credibility determination, and she did not believe that Mr. Meisenheimer actually perceived the biker to be a threat because he left the door of his vehicle open.

[00:23:58] Speaker 01:
He didn't search the backpack that she had, which was kind of the sole basis of this concern because the bike might have explosives in it.

[00:24:06] Speaker 01:
And so the ALJ did address that argument and didn't find it credible.

[00:24:11] Speaker 01:
And even if

[00:24:13] Speaker 01:
this were a situation where exigent or unusual circumstances were present, preponderant evidence would still support the specifications, because as the ALJ recognized at Appendix 50, and as I already stated, the policy just categorically prohibits vehicle pursuits.

[00:24:31] Speaker 01:
And Section 5.2.4E says, under no circumstances shall emergency lights be used to stop vehicles.

[00:24:39] Speaker 01:
So that the policy is clear.

[00:24:41] Speaker 02:
And that includes bicycles.

[00:24:45] Speaker 01:
Well here, here it does say stop vehicles.

[00:24:48] Speaker 01:
Um, I think it's clear that the policy prohibits him from, um, activating his lights and sirens and conducting stops.

[00:24:55] Speaker 01:
It does say vehicles admittedly, your honor, but Mr. Meisenheimer had previously been suspended for, for, you know, similar conduct before, and he does admit in his own incident report.

[00:25:05] Speaker 02:
Really similar conduct where another officer asks for help in what on its face appears to be.

[00:25:12] Speaker 02:
a potentially catastrophic emergency situation?

[00:25:18] Speaker 01:
In the prior situation, he was suspended for pulling over a vehicle.

[00:25:23] Speaker 01:
We pulled over somebody when he's not supposed to do that.

[00:25:27] Speaker 01:
And I do understand that Captain Poole asked him to help, but Mr. Meisenheimer is subject to his specific offices

[00:25:38] Speaker 01:
regulations and policies, and he knew, as he said in his incident report, that he doesn't have authorization to conduct a traffic stop or use his license siren to apprehend somebody.

[00:25:50] Speaker 01:
And the ALJ, as I said, did address his claim that he thought it was a credible threat, but given that he

[00:25:58] Speaker 01:
left the door of his vehicle open throughout the encounter and he did not actually search or secure a backpack.

[00:26:03] Speaker 01:
He did not actually believe that he perceived a true threat in his mind of the biker.

[00:26:10] Speaker 01:
But instead he knew he couldn't do this and he just nonetheless persisted in doing it anyways.

[00:26:15] Speaker 01:
Especially given that his jurisdiction is limited.

[00:26:18] Speaker 01:
I just want to repeat that.

[00:26:20] Speaker 01:
He is an OLE officer for the National Marine Fisheries Service.

[00:26:24] Speaker 01:
He patrolled the marina and so he doesn't have the same authority as a police officer.

[00:26:31] Speaker 02:
And do I understand right that the deciding official said in the decision document that removal would be the chosen penalty under any one of these five charges?

[00:26:49] Speaker 01:
He did say that, Your Honor, at Appendix 100.

[00:26:51] Speaker 01:
He said, each of the five reasons identified, even standing alone, is serious enough to support removal.

[00:26:58] Speaker 01:
I think given the repeated nature of the misconduct on some of the specifications and prior disciplinary conduct, and given the high level of trust inherent in his position, yes, the agency official decided that standing alone, any of these charges would be serious enough to support removal.

[00:27:18] Speaker 02:
In your red brief, did you rely on that, on the penalty question?

[00:27:24] Speaker 01:
Did I rely on that?

[00:27:26] Speaker 02:
On the deciding official?

[00:27:28] Speaker 02:
I mean, suppose I had doubts about charge number three, then I need to figure out what to do, right?

[00:27:34] Speaker 02:
And there are some rules about that, and one of them has to do with what the deciding official said should be done if not all charges were supported.

[00:27:43] Speaker 02:
Did your brief rely on

[00:27:45] Speaker 02:
I guess it's Appendix H100.

[00:27:50] Speaker 01:
Well, I think our brief, as far as the penalty goes, Mr. Meisenheimer in his brief had argued that, you know, condemnation of some kind warranted mitigation.

[00:27:59] Speaker 01:
So I addressed those arguments.

[00:28:01] Speaker 01:
I don't recall in our brief actually addressing the argument if the court does not sustain all the charges, but to address Your Honor's question.

[00:28:11] Speaker 02:
I'm not sure the blue brief did either.

[00:28:14] Speaker 01:
Correct, yes.

[00:28:15] Speaker 01:
And so, but if the court was, you know, if the court indicated that it wasn't going to hold up, you know, one of the charges, remand would be unnecessary because the board's decision to sustain removal would be supported by the other charges because the agency said any one of them would support removal.

[00:28:32] Speaker 01:
So, remand wouldn't be necessary because we have the agency actually saying, you know, standing alone, it would be serious enough to support removal.

[00:28:40] Speaker 00:
Council, I thought maybe you did say something like this on page 50 of your brief.

[00:28:46] Speaker 01:
Oh, OK.

[00:28:48] Speaker 01:
I took the call in my brief if I actually relied on that exact statement.

[00:28:53] Speaker 01:
I might have mentioned it in kind of reiterating, but thank you.

[00:28:56] Speaker 01:
I appreciate that, Your Honor.

[00:28:57] Speaker 01:
Yes, good.

[00:28:58] Speaker 01:
Thank you.

[00:28:59] Speaker 01:
OK.

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

[00:29:00] Speaker 01:
I appreciate that, Your Honor.

[00:29:01] Speaker 01:
And I will just very briefly address the claim about the unlawful possession of mammal parts since that came up.

[00:29:10] Speaker 01:
Again, he doesn't dispute that he collected and possessed the parts.

[00:29:14] Speaker 01:
He instead claims that the agency never made a finding about unlawful possession, but that is incorrect.

[00:29:20] Speaker 01:
The proposal to remove at Appendix 90, you know, clearly calls reason for unlawful possession of marine mammal parts.

[00:29:28] Speaker 01:
And it explains that he collected them, then failed to register them as required.

[00:29:32] Speaker 01:
So the failure to register them is what made the possession unlawful.

[00:29:36] Speaker 01:
and the agency cites to the relevant regulations.

[00:29:39] Speaker 02:
And at least based on the findings, it was the failure to register as the only thing that made the continued possession unlawful, right?

[00:29:47] Speaker 02:
That is, we don't have an endangered species finding or something like that, or do we?

[00:29:52] Speaker 01:
Well, so if Your Honor, I could just answer your question briefly with that.

[00:30:00] Speaker 02:
Yes, please.

[00:30:01] Speaker 01:
Oh, OK.

[00:30:01] Speaker 01:
So the proposal to remove at Appendix 82 says that some of the parts that Mr. Meisenheimer turned in or attempted to register were stellar sea lion parts, which is an endangered species whose parts cannot be kept.

[00:30:15] Speaker 01:
And then it further goes on in the final removal decision at Appendix 90 and 91 that Mr. Meisenheimer was responsible for enforcing the Endangered Species Act and that he knew the office doesn't register parts from the, you know, Endangered Species Act because they cannot be legally collected.

[00:30:31] Speaker 01:
And then at Appendix 92, then the deciding official said, you know, his violations are aggravated because he didn't properly identify the parts.

[00:30:40] Speaker 01:
And so the agency did at least put Mr. Meisenheimer on notice of the charge against him and that they believed he failed to comply with the Endangered Species Act.

[00:30:49] Speaker 01:
But I agree that the main focus of the charge is this.

[00:30:53] Speaker 02:
I think if I remember right, Mr. Berger, I think said something to the effect that,

[00:31:01] Speaker 02:
Maybe one of the government witnesses testified that there was in fact no finding that any of the mammals at issue were unlawfully taken by Mr. Meisenheimer.

[00:31:20] Speaker 02:
Maybe I've misunderstood that, but I think you must have heard the same thing I did.

[00:31:23] Speaker 02:
Can you clarify that?

[00:31:25] Speaker 01:
I think Mr. Meisenheimer was talking about his argument that they never actually concluded with a DNA test or otherwise that these parts were endangered species parts.

[00:31:38] Speaker 01:
The agency had a biologist look at them and he identified the parts as endangered species act.

[00:31:43] Speaker 02:
Was there testimony at the A.J.

[00:31:45] Speaker 02:
hearing from a government officer acknowledging the absence of a finding

[00:31:54] Speaker 02:
of unlawful taking apart from registration?

[00:32:01] Speaker 01:
So they're intertwined, Your Honor.

[00:32:04] Speaker 01:
So the regulation that's cited in the... I'm sorry.

[00:32:08] Speaker 02:
I'm not asking a simple enough question.

[00:32:11] Speaker 02:
Tell me about testimony at the AJ hearing from a government witness if there was such, which is what I understood Mr. Berger to say there was.

[00:32:22] Speaker 02:
Don't tell me about the underlying facts.

[00:32:24] Speaker 02:
I'm just asking a question about testimony at the A.J.

[00:32:27] Speaker 02:
hearing.

[00:32:29] Speaker 01:
I don't, other than Mr. Meisenheimer's own testimony, no, I don't believe there was testimony from any of the Department of Commerce agents on this particular charge.

[00:32:41] Speaker 01:
You know, the investigating officials, you know, Mr. Henry and

[00:32:45] Speaker 01:
Mr. Ellis, the final deciding official.

[00:32:47] Speaker 01:
They based it on his forms that he submitted, which are in the appendix at 201 to 237.

[00:32:54] Speaker 01:
Those are the forms that he submitted, you know, acknowledging that he had these parts and that he had held onto for three and a half years.

[00:33:00] Speaker 01:
And that's what the ALJ, at pages 51 and 52 of her opinion, that's what she based her decision on, the documentary evidence in the record that he admittedly had these parts and admittedly did not register them for over three years.

[00:33:15] Speaker 02:
Okay.

[00:33:17] Speaker 02:
Okay, thank you so much.

[00:33:19] Speaker 02:
And Mr. Berger, your rebuttal.

[00:33:23] Speaker 03:
Yes, thank you very much.

[00:33:24] Speaker 03:
At a appendix 138, the deciding official was questioned about the relevance of the Endangered Species Act.

[00:33:33] Speaker 03:
He said he knew the allegations, he knew what those allegations were at the time.

[00:33:39] Speaker 03:
At a minimum, he failed to register the parts.

[00:33:43] Speaker 03:
So when he's questioned, is it fair to say,

[00:33:46] Speaker 03:
that the way you looked at this charge, because the general counsel had not opined on whether there was a violation of the Endangered Species Act, you looked at it as a fail to register.

[00:33:55] Speaker 03:
Is that right?

[00:33:56] Speaker 03:
Answer, yes.

[00:33:57] Speaker 03:
So I see this solely as a fail to register act.

[00:34:00] Speaker 03:
My point is the fail to register does not necessarily undermine his right to possess the parts.

[00:34:06] Speaker 03:
There are two different claims, two different elements.

[00:34:10] Speaker 03:
And like a vehicle that's not registered is still owned by the owner.

[00:34:14] Speaker 03:
So we say that the fair to possess charge is not supportable on its face.

[00:34:20] Speaker 03:
I want to point out briefly that Meisenheimer did inform Testaverde.

[00:34:25] Speaker 03:
You see, Testaverde is the one that's collaborating with him on this issue of the use of the vehicle.

[00:34:31] Speaker 03:
He informs Testaverde on the seven specifications of reason one in a vehicle log that he took the vehicle for his personal appointments.

[00:34:40] Speaker 03:
So Testaverde had to know that he was using the government vehicle

[00:34:44] Speaker 03:
as for these personal appointments and he said nothing and he relied on it.

[00:34:49] Speaker 03:
It's obvious that he and Testa Verde had an arrangement or had an understanding in the local office concerning his use of a vehicle for personal reasons and is going to these personal appointments.

[00:35:02] Speaker 03:
And so that goes to his state of mind.

[00:35:05] Speaker 02:
I think your time has expired.

[00:35:07] Speaker 02:
Okay.

[00:35:07] Speaker 02:
All right.

[00:35:08] Speaker 02:
Thank you very much for the opportunity to speak.

[00:35:10] Speaker 02:
Thank you for the argument and both counsel.

[00:35:13] Speaker 02:
The case is submitted.

[00:35:14] Speaker 01:
And that concludes our session for today.