[00:00:00] Speaker 01: Mr. Markson and Mr. Byrd, can you both hear me? [00:00:06] Speaker 00: Yes, Your Honor. [00:00:08] Speaker 00: Yes, Your Honor. [00:00:09] Speaker 01: Okay. [00:00:10] Speaker 01: Before I let the clock start, just a heads up. [00:00:15] Speaker 01: You know, this is a difficult circumstance for everyone because we're just on the phone and you can't see us. [00:00:21] Speaker 01: So I ask you to listen carefully for when the judges start talking. [00:00:27] Speaker 01: There's a little bit of a lag time and I know it's difficult, but just try to keep a heads up. [00:00:32] Speaker 01: Okay. [00:00:34] Speaker 00: Yes, your honor. [00:00:36] Speaker 00: I understand your honor. [00:00:37] Speaker 01: Okay. [00:00:38] Speaker 01: Mr. Markson, you, you're, you're reserving five minutes. [00:00:41] Speaker 01: When that tone goes off, I'll try to let you know if you haven't heard it. [00:00:46] Speaker 01: Um, and, um, if you want to use up that time, that's up to you, but, um, uh, I'll, I'll try to help you reserve it if you want to. [00:00:56] Speaker 01: Thank you, your honor. [00:00:57] Speaker 01: Okay, you can go ahead and start now. [00:01:01] Speaker 02: May it please the court? [00:01:03] Speaker 02: This is Ernst Martson for Petitioner Yolanda Reed. [00:01:06] Speaker 02: Affirming the board in this case would lighten the agency's task on the initial appeal, whereas here, a disciplined employee suffers from mental health and memory issues as well as... Yes, Your Honor. [00:01:18] Speaker 01: This is Judge Wallet. [00:01:21] Speaker 01: I have some questions about Dr. Branneman. [00:01:24] Speaker 01: On page 18 of the blue brief, you say, I'm quoting now, Dr. Timothy Braneman, who evaluated Ms. [00:01:33] Speaker 01: Reed's files, concluded that these symptoms and Ms. [00:01:36] Speaker 01: Reed's state of mind during her dark period, internal quote from him, interfered with her ability to attend to the notification of being terminated for AWOL in a timely manner. [00:01:53] Speaker 01: and possibly to fully understand the implications of those notifications. [00:01:57] Speaker 01: Close internal quote, close quote. [00:02:01] Speaker 01: Isn't Dr. Brandeman's statement inconclusive because he said that Ms. [00:02:06] Speaker 01: Reed's condition possibly interfered and therefore doesn't it fail to meet any possible burden of proof? [00:02:15] Speaker 01: And if not, why not? [00:02:18] Speaker 02: Well, Your Honor, I would argue that [00:02:22] Speaker 02: it ties together, it creates a condition for the other evidence that exists in the case to be considered with greater weight, because he's giving his professional forensic assessment about the plausibility of Ms. [00:02:41] Speaker 02: Reed's state of mind at the time. [00:02:44] Speaker 01: He says, he uses the word possible. [00:02:48] Speaker 01: He doesn't say more likely than not, [00:02:52] Speaker 01: How can we even pay attention to this? [00:02:56] Speaker 02: Well, Your Honor, I think this is within the standards of what a forensic assessment does. [00:03:01] Speaker 02: I think it would be... He would be unprofessionally giving an opinion if he were to be more resolute in his opinion than this, because [00:03:14] Speaker 02: Anytime a forensic examiner does, or I'm sorry, a forensic psychologist does an assessment of something that, of a state of mind that occurred so many years ago, by their very nature, they, they have to give a hedged assessment. [00:03:27] Speaker 02: And that's what he gave in this particular case. [00:03:31] Speaker 01: On page 22 of the blue brief, you say, uh, I'm quoting the AJ's determination that Dr. Brandemann was not credible. [00:03:42] Speaker 01: is an abuse of discretion and is unsupported by the evidence," close quote. [00:03:48] Speaker 01: I'm correct that Dr. Brandeman didn't appear before in the NSPB to testify. [00:03:54] Speaker 01: I know that. [00:03:57] Speaker 01: And as our president, Han Bush, the Treasury holds, the NSPB's determination of witness credibility is virtually unreviewable. [00:04:09] Speaker 01: Well, that's probably true as to life. [00:04:12] Speaker 01: witnesses on this, the only thing we can rely on is the provision of a competent and cognizable piece of evidence by affidavit. [00:04:28] Speaker 01: And I don't see anything. [00:04:34] Speaker 02: I suppose perhaps I'm misunderstanding you. [00:04:36] Speaker 02: Are you saying that a forensic report, just by its [00:04:42] Speaker 02: of this sort by its very nature is not admissible for... Do you have any foundation? [00:04:52] Speaker 01: Because I'm very concerned about that possibly. [00:04:56] Speaker 02: Yeah, and I suppose I certainly would be, too, from the other side. [00:04:59] Speaker 02: I understand that, you know, Dr. Brandeman, in my view, established the foundation by, you know, performing the psychological assessments. [00:05:10] Speaker 02: of Ms. [00:05:11] Speaker 02: Reed by interviewing Ms. [00:05:12] Speaker 02: Reed, reviewing the records in the case, and obviously by his own education and training, in my view and petitioner's view, that establishes the foundation for this letter to be considered by an administrative judge in a case like this and to be given weight. [00:05:33] Speaker 01: On page 26 of the blue brief, you say, again, I'm quoting, on one hand, [00:05:39] Speaker 01: Ms. [00:05:40] Speaker 01: Reed's first-line supervisor trusted Ms. [00:05:42] Speaker 01: Reed to do her job right up until her removal. [00:05:46] Speaker 01: And on the other hand, the deciding official decided that Ms. [00:05:49] Speaker 01: Reed could not be trusted and had to be fired. [00:05:53] Speaker 01: I find that somewhat misleading, and I want you to tell me why it isn't. [00:05:57] Speaker 01: Because we know that the first-line supervisor wasn't informed about the investigation against Ms. [00:06:03] Speaker 01: Reed until she was terminated. [00:06:06] Speaker 01: So how is that [00:06:10] Speaker 01: relevant evidence? [00:06:14] Speaker 02: Well, I believe it's relevant evidence because that supervisor is... I mean, I suppose... Well, first off, I'd like to say the agency as a whole understood that Ms. [00:06:31] Speaker 02: Reed was able to continue in her position right up until her removal, including [00:06:37] Speaker 02: including the proposing and deciding officials. [00:06:40] Speaker 02: I mean, the deciding official in this case heard her case in June and July of 2019, and she remained in her position all the way through almost the end of September, as I recall. [00:06:54] Speaker 02: And so, yeah, I understand the first-line supervisor continued to trust Ms. [00:07:00] Speaker 02: Reed, but I guess I suppose I don't see it the way you do. [00:07:07] Speaker 01: Okay, the MSPB determined that after her termination from Social Security, Ms. [00:07:15] Speaker 01: Reed applied for unemployment benefits. [00:07:19] Speaker 01: That wasn't mentioned in the blue brief. [00:07:22] Speaker 01: Don't you think it's relevant? [00:07:25] Speaker 01: I mean, he had the knowledge to go ahead and do that. [00:07:31] Speaker 02: with spectrum. [00:07:33] Speaker 02: I don't believe it's particularly relevant. [00:07:35] Speaker 02: I also know that she had applied for disability, um, as well. [00:07:39] Speaker 02: Um, she, she was aware that she'd been terminated and she, she disclosed that to the investigators, um, you know, openly, she said that she had been terminated, uh, because she couldn't go to work and, and, and so, you know, the operative facts in this particular case were disclosed. [00:07:58] Speaker 02: Um, the mistake and the key, [00:08:01] Speaker 02: The key issue on which our substantial evidence arguments are per base is, you know, whether this incorrect statement that she was not AWOL was lacking candor when she had made disclosures to the investigators that she had indeed been terminated and that she'd been terminated for not going to work, which... Counsel, this is Judge Hughes. [00:08:27] Speaker 02: I just want to ask you about this one point because it seems... [00:08:30] Speaker 02: critical and it seems like the MSPB relied on it. [00:08:33] Speaker 02: She didn't just volunteer that she'd been terminated for not going to work. [00:08:37] Speaker 02: She affirmatively said, I wasn't terminated for AWOL. [00:08:41] Speaker 02: I don't have the words correctly, but she affirmatively addressed the AWOL issue. [00:08:46] Speaker 02: If you thought you had been terminated for not going to work, why would you address this other specific charge, which was the actual basis for termination? [00:08:57] Speaker 02: You know, I don't know the answer to that question, Your Honor. [00:08:59] Speaker 02: I don't think the petitioner had any good reason when she testified to it. [00:09:06] Speaker 02: That was one of the biggest issues in our case, of course, and that's why when I... Well, isn't the problem the board thought she was making a false statement and didn't believe her and therefore found her testimony not credible? [00:09:23] Speaker 02: And if that's the case, how do we review any of that given our very deferential standard of review and credibility determinations? [00:09:33] Speaker 02: Well, I think a lot of it comes down to the faulty analysis of the mental health issues that were in play here. [00:09:39] Speaker 02: You know, in myth versus GSA, that's where this court establishes that a faulty analysis can be a stepping stone to a finding that [00:09:50] Speaker 02: But again, let me interrupt you because it seems to me you're talking about two different issues. [00:09:57] Speaker 02: I don't see any allegations that she was suffering from mental health issues that prevented her from being truthful to the investigators. [00:10:05] Speaker 02: It was the mental health issues sounding around her removal. [00:10:10] Speaker 02: But if she was not suffering from mental health issues that prevented her from being truthful to the investigators, then why would she [00:10:20] Speaker 02: volunteer a statement that she wasn't removed for being able when all she needed to do was tell the investigators what she thought was the truthful story. [00:10:33] Speaker 02: Well, Your Honor, that was a mistake that I know that she wishes she could take back because in retrospect she admitted to the board that she said those words and they were in fact incorrect. [00:10:47] Speaker 02: Well, I get it. [00:10:48] Speaker 02: I mean, [00:10:49] Speaker 02: You have your view of the facts, and the government and the board have their view of the facts. [00:10:55] Speaker 02: And one is it was a simple mistake, and one is that it was a lie. [00:11:00] Speaker 02: And doesn't that just come down to the board's interpretation of her testimony? [00:11:06] Speaker 02: And did she testify live? [00:11:08] Speaker 02: She did, yes, Your Honor. [00:11:10] Speaker 02: I don't know how we get around the fact that the board is in the best position to listen to her, make that testimony, and determine [00:11:17] Speaker 02: whether she telling the truth or not. [00:11:19] Speaker 02: And the board said she wasn't. [00:11:23] Speaker 02: I believe it comes down to the faulty analysis in particular with respect to the judge saying that the judge not crediting the mental health evidence that she had memory problems at the time she received the AWOL letter. [00:11:41] Speaker 02: She had decompensation issues where she was failing to attend to basic life needs. [00:11:45] Speaker 02: And, and wasn't even going to work, obviously. [00:11:47] Speaker 02: She was terminated for not going to work because she literally wasn't showing up to work for, for many, many months. [00:11:53] Speaker 02: And so her mental health issues were so severe and there was that. [00:11:59] Speaker 01: Just so you know, you're into your rebuttal time. [00:12:02] Speaker 02: Uh, yes, your honor. [00:12:04] Speaker 02: Um, I'll reserve the rest of the time for rebuttal and unless the court has any particular questions down. [00:12:11] Speaker 01: Okay. [00:12:11] Speaker 01: Let's hear from the government. [00:12:13] Speaker 01: Mr. Byrd. [00:12:16] Speaker 00: Yes, good morning, Your Honor, and may it please the Court. [00:12:19] Speaker 00: At base in this appeal, Ms. [00:12:21] Speaker 00: Reed inappropriately seeks to have this Court reweigh the evidence. [00:12:24] Speaker 00: Instead, as we detailed in our brief, this Court should affirm the Board's decision sustaining DHS's decision to remove Ms. [00:12:30] Speaker 00: Reed for two reasons. [00:12:33] Speaker 00: First, substantial evidence supports the Board's decision here, sustaining the lack of hand or charge because Ms. [00:12:38] Speaker 00: Reed was not fully candid during the 2018 investigatory interview. [00:12:43] Speaker 00: The board did not ignore the medical evidence that Ms. [00:12:45] Speaker 00: Reed had proffered to the board, but instead simply found that evidence to be of little probative value when weighing it. [00:12:52] Speaker 00: Second, the board's decision demonstrates that the administrative judge identified and balanced all relevant factors in determining that the penalty of removal was reasonable under the circumstances. [00:13:04] Speaker 00: The administrative judge, contrary to Ms. [00:13:06] Speaker 00: Reed's assertion, did not fail to consider relevant mitigating evidence, including evidence concerning her mental health, [00:13:13] Speaker 00: but rather simply found that evidence not to warrant overturning the penalty. [00:13:19] Speaker 00: Turning to the charge of lack of candor, as this court is aware, that charge contains two elements, giving incorrect or incomplete information and doing so knowingly. [00:13:30] Speaker 00: On the incomplete information point, as Mr. Martson pointed out, Ms. [00:13:33] Speaker 00: Reed does not contest that the information she gave regarding the reason for the termination was incorrect. [00:13:40] Speaker 00: And that was that she stated that she was not let go for being AWOL when, in fact, she was fired by the Social Security Administration for being AWOL. [00:13:49] Speaker 00: Regarding whether she gave that incorrect information knowingly, substantial evidence supports the board's finding that Ms. [00:13:56] Speaker 00: Reed knowingly did provide that information incorrectly. [00:13:59] Speaker 00: After fully considering the evidence and assessing the credibility of testifying witnesses, including Ms. [00:14:05] Speaker 00: Reed, [00:14:06] Speaker 00: The board concluded that it was simply improbable that her medical condition caused Ms. [00:14:11] Speaker 00: Reed not to have remembered the reason for her SSA termination during the 2018 interview. [00:14:17] Speaker 00: As the administrative judge explains in his opinion, several facts support this conclusion, including Ms. [00:14:24] Speaker 00: Reed's testimony before the board that she had in June 2015 at the time of the termination gotten the gist of having gotten let go for not returning to work from the SSA. [00:14:36] Speaker 00: Additionally, the year before the November 2018 investigatory interview in October 2017, Ms. [00:14:44] Speaker 00: Reed had an interview with the Office of Personnel Management for a security clearance investigation, and she recounted then the reason she had been let go by the SSA, and that was for her failure to return to work when her supervisor was no longer approving her leave request. [00:15:00] Speaker 00: Additionally, as this court discussed with Mr. Martson, [00:15:03] Speaker 00: It was Ms. [00:15:04] Speaker 00: Reed who volunteered the term AWOL during the 2018 interview and the board as a credibility matter determined that that further discredited her credibility before the board. [00:15:16] Speaker 00: Turning to the medical opinions that were before the board, the administrative judge's decision evidences that he extensively analyzed and weighed those opinions that the parties had presented against other contradictory evidence in the record. [00:15:32] Speaker 00: As part of this inquiry, the administrative judge explained why he found in accordance with this court's precedent ball that the medical opinions proffered by Ms. [00:15:44] Speaker 00: Reed did not show that her medical condition played a role in her inability to or her lack of candor in that November 2018 interview. [00:15:55] Speaker 00: The board judge also then [00:15:59] Speaker 00: explained why, on the other hand, he found the clinician proffer by the agency to be credible in light of his evaluation of the evidence and conclusions that Ms. [00:16:12] Speaker 00: Reed's psychologist from November 2019 had proffered to the board. [00:16:18] Speaker 00: In the end, the administrative judge simply was not persuaded that Ms. [00:16:21] Speaker 00: Reed's mental health in 2015 or 2018, for that matter, [00:16:25] Speaker 00: cost her not to remember the reason for her termination from the SSA in June 2015. [00:16:35] Speaker 00: On appeal, by continuing that the administrative judge err by not granting more weight to the medical opinions that Ms. [00:16:40] Speaker 00: Reed proffered, as we detail in our brief, Ms. [00:16:43] Speaker 00: Reed simply inappropriately asked this court to reweigh the evidence, which is not its function on a substantial evidence review standard. [00:16:53] Speaker 00: Regarding the penalty, briefly, Your Honor, this court should not disturb the penalty determination because removal was in the bounds of reasonableness under the circumstances in both the agency and the board considered the relevant mitigating factors. [00:17:07] Speaker 00: Ms. [00:17:07] Speaker 00: Reed broadly contends that the board failed to consider mitigating circumstances, in particular the evidence regarding her mental health. [00:17:15] Speaker 00: However, as the administrative judge's opinion evidences, both the deciding official and the board considered this evidence, [00:17:22] Speaker 00: but simply concluded when weighing it that it was not, it had little probative value and did not warrant overturning the penalty, which was within the bounds of reasonableness. [00:17:39] Speaker 01: Is that it from the government, Mr. Burke? [00:17:43] Speaker 00: If there are no further questions, Your Honor, at this point I can conclude. [00:17:47] Speaker 00: We respectfully request that the court affirm the MSPB's decision. [00:17:50] Speaker 00: Thank you. [00:17:52] Speaker 01: Thank you, Mr. Byrd. [00:17:54] Speaker 01: Mr. Marksman? [00:17:55] Speaker 01: Yes, sure. [00:17:57] Speaker 02: Thank you, Your Honor. [00:17:59] Speaker 02: Yes, and even if this court does affirm the board in sustaining the charge of lack of candor, it's petitioner's contention that the administrative judge should have performed an independent penalty determination in this case, not only in light of new medical evidence, much of which was not specifically mentioned in the administrative judge's opinion, [00:18:19] Speaker 02: but is contained in the appendix, but also because he should not have given deference to the agency's penalty determination because the agency deciding official failed to consider or at least adequately considered two double factors, including that he failed to truly consider lesser sanctions and second that he failed to consider Ms. [00:18:40] Speaker 02: Reed's continuing satisfactory work performance for the approximately 10 months after she gave her interview in which she purportedly black-handed her. [00:18:48] Speaker 02: Going back to the issue of the failure to consider lesser sanctions in the appendix. [00:18:56] Speaker 02: Yes. [00:18:57] Speaker 02: Yes, Your Honor. [00:18:58] Speaker 01: Mr. Marsden, Douglas doesn't mandate that all factors be considered in every case without regard to their relevancy, right? [00:19:07] Speaker 02: That's correct. [00:19:08] Speaker 02: And Petitioner contends that these are two of the most relevant elements, and they were not considered or not adequately considered. [00:19:16] Speaker 01: Well, the AJA [00:19:18] Speaker 01: found that Ms. [00:19:19] Speaker 01: Reed's failure to take responsibility or show remorse for her lack of candor demonstrated the significance of her misconduct and thus weighed heavily, I'm quoting, weighed heavily against her rehabilitation potential. [00:19:36] Speaker 01: So the relevancy of considering a lesser sanction is diminished by her limited rehabilitation potential as a federal service [00:19:45] Speaker 02: employee right and I'm I'm saying look at what chance for example yeah as a general proposition I agree your honor I believe that again in this case they the the main issue is that there is deference to the agency deciding official who testified um on cross-examination at Appendix 550 that he did not give serious consideration to lesser forms of penalties such as uh such as a suspension and and so when [00:20:14] Speaker 02: there's no serious consideration given, then it's tantamount to not considering a factor at all. [00:20:20] Speaker 02: And again, in this case, I believe that that was relevant given the significant mental health issues, which I know I don't have time to go through all of them, but many of them were not mentioned by the administrative judge and they are contained in the record. [00:20:33] Speaker 02: You know, there's evidence of severe mental health issues going [00:20:37] Speaker 02: back even just within the record to 2014, 2015, 2019, and again, with Dr. Brandeman's report and assessment as well. [00:20:49] Speaker 02: And many of those were not discussed and specifically dealt with by either the agency or the administrative judge. [00:20:57] Speaker 01: Anything further? [00:20:59] Speaker 02: Oh, yes, Your Honor. [00:21:00] Speaker 02: Just that, you know, as you all are likely aware, [00:21:06] Speaker 02: The medical evidence, when it exists, is often given significant weight. [00:21:11] Speaker 02: And again, here it was minimized. [00:21:13] Speaker 02: It was not given significant weight. [00:21:15] Speaker 02: And there was no serious consideration of the lesser penalties, especially in the lives of the medical evidence. [00:21:21] Speaker 02: That by itself is a significant error. [00:21:27] Speaker 02: Pending any further questions from the judges, I can conclude. [00:21:31] Speaker 01: Okay. [00:21:32] Speaker 01: Thank you very much. [00:21:32] Speaker 01: The matter will stand submitted. [00:21:35] Speaker 02: Thank you, Your Honor. [00:21:36] Speaker 01: Thank you to both councils.