[00:00:00] Speaker 02:
The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

[00:00:12] Speaker 03:
Good morning, ladies and gentlemen.

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We have three cases this morning, one from the Merit Systems Protection Board and two from PTAB, one of them being a consolidated case.

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The first case is Rodriguez versus the Department of Veterans Affairs, 2019-2025.

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Mr. Solomon.

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Good morning, Your Honor.

[00:00:41] Speaker 02:
May it please the Court?

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I'm here on behalf of the Petitioner, Mr. Ariel Rodriguez.

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This particular case is primarily centered around questions of law.

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And that's not because there are not a lot of important facts to wade through, but precisely because

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The new procedures found at Title 38, USC 714, place so little importance on facts and instead place so much authority on inferior officers of the United States to make the initial decision.

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As the Federal Circuit has pointed out of their own ability to review factual determinations of lower courts using the substantial evidence standard, such factual determinations are virtually unreviewable.

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So the question here is basically about the intersection between due process and the appointments clause with important considerations on both issues as well as how they overlap.

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As far as the first point is concerned, we have the statute and we have sayers which interpreted the statute and we're bound by both, are we not?

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Yes, we are.

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And Sayers held that the substantial evidence standard was not unacceptable.

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With respect, Your Honors, I mean, as far as the Sayers' opinion, that was ultimately reached on the question of retroactivity.

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There was some determinations in dicta there, but those aren't binding on

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you know, this particular decision.

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And there was also several arguments that were raised in Sayers that weren't even addressed in the decision, once again, because that decision was ultimately based on, you know, that was based on retroactivity.

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In addition to that, there are several arguments that were raised in this case that were not raised in the briefing in Sayers and therefore also not addressed by the court in Sayers.

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So we shouldn't similarly be bound

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by a decision that's ultimately based on the fact that the statute is not retroactive to talk about the wider repercussions of 714.

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But continuing as far as the due process of law, the substantial evidence standard was expanded in Sayers to talk about not just the factual determination and factual sufficiency of whether or not the alleged conduct happened, but also the level of penalty.

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If you look at other Supreme Court decisions that kind of lay out what process is due to federal employees, specifically to Laudermill and kind of the cases that come out of that, one of the key things that they found is that an employee has, for example, the right to cross-examine the witnesses upon which the factual allegations are made against them.

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Obviously, under the previous Title V procedures, that's done at the Merit Systems Protection Board stage with the administrative judge.

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And those administrative judges were reviewing the decision of the agency official making the decision de novo.

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So it was somebody that had full access to the record was ultimately somebody that was making the decision.

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And this is what I mean by the intersection between the appointments clause and the due process of law, because here what we have

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is based on her own testimony, the deciding official in this, Director Klinker, states that she was appointed as an inferior officer of the United States.

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What we have in Hellman is a decision that ultimately says, should the removal decision come from the secretary of the Department of Veterans Affairs, what we can't have is a non-officer of the United States having the final reviewing authority on that.

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But what we have here is an inferior officer of the United States.

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I'm sorry, Mr. Solomon.

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This is Judge Bryson.

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My understanding of Hellman, though, was that there was a preclusion of review not only in the board, but in this court as well.

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Isn't that right?

[00:05:05] Speaker 02:
Yes.

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So as they did point out in Hellman, this court did have authority to review their constitutional claims.

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But I'm not saying that they're directly... The review of the standard issues regarding the sufficiency of the evidence for the removal and the penalty were not available to this court, as I understand Hellman.

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That is correct.

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Okay.

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But the specific holding I'm taking out of Hellman, in that instance, even though it wasn't the

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secretary making the removal decision, the statute at 713 that was ultimately ruled unconstitutional, gave the authority to the secretary to make the removals.

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That authority was then, and this is prior to Lucia, so at the time I believe the Federal Circuit is actually looking at the administrative judges as inferior officers of the United States.

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But basically you have a superior officer's decision being

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you know, having a review by an inferior officer with then no re-review by a superior officer going back to the full board who are, you know, superior officers of the United States.

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And they said it was improper for a superior officer of the United States to have the, you know, have their authority reviewed by an inferior officer with no further review.

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I hear what we have.

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If I may.

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Let me see if I understand your constitutional argument.

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Suppose Congress were to decide tomorrow that the merit systems protection board really should be abolished entirely and that there should be a review of the decision of an agency on employment issues by the pertinent court of appeals or district court in an APA action.

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Would that be unconstitutional?

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Is that the thrust of your argument?

[00:07:03] Speaker 02:
Well, that would undo this particular statute.

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That would not be inherently unconstitutional, as long as it was in accordance with Laudermill.

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Because obviously, they would have to give, if it was just the agency decision, and then the next step was judicial review, they would have to give 100% of the due processes, pre-deprivation due process.

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Laudermill talked about what?

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Right, but there would be no appointments clause problem with that, right?

[00:07:32] Speaker 02:
There would not.

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The issue I'm talking about is the order where you can't have the authority of an officer called into question by, you know, a non-officer at the appellate stage with no review back to an officer.

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And here what we have is we have an inferior officer.

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Ultimately, you know, if we interpret correctly, Lucia, the appeal is then going to a non-officer and then

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Mr. Rodriguez has the opportunity to then take that to the full board who are superior officers of the United States, but because they cannot review this de novo, they are pretty much bound by, you know, in all but extreme circumstances are bound by the decision of an inferior officer.

[00:08:18] Speaker 02:
So you have an inferior officer determining, yes.

[00:08:21] Speaker 03:
Mr. Solomon, please listen carefully.

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It's difficult when we have these telephonic arguments, but if the judge is trying to ask a question, please.

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I'll not continue talking.

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The government argues waiver on the Appointments Clause issue.

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And you chose to go to the MSPB with whatever the infirmities were for the AJ.

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Why isn't that waiver?

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Well, there are two different Appointments Clause issues.

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I believe they raised the waiver as to one of those issues.

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The issue I'm talking about now as far as the, you know, ultimate authority in the board appeal review not being available, that was not waived.

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There was a specific briefing submitted on that.

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What they're claiming was waived is the argument that under Lucia, the judge himself, the administrative judge himself is not properly appointed as required to be an inferior officer of the United States.

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The reason that that argument is not waived is because it is a timely raise, a constitutional consideration.

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I believe specifically for these, it is limited what arguments are not waived.

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But as cited in Luce, I believe that applies to Rider versus United States.

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which is 115, Supreme Court, 2031, Decided 95.

[00:09:55] Speaker 01:
What about the Supreme Court's decision in Carr v. Saul that just came out?

[00:10:02] Speaker 02:
Regarding the Appointment Clause?

[00:10:04] Speaker 01:
Yeah, regarding waiver on Appointment Clause challenges.

[00:10:09] Speaker 02:
Yeah, that does present new issues and I have not had full opportunity to review that.

[00:10:15] Speaker 01:
Okay.

[00:10:17] Speaker 01:
You should have been paying attention because to the extent it presents new issues, they're probably pretty good for you.

[00:10:22] Speaker 02:
Yes, I'll be sure to review that.

[00:10:26] Speaker 02:
But as I pointed out, that's already kind of discussed and wider than citing to Glidden Company versus United States, which makes it clear that when this particular issue of the appointment clause and authority underneath is raised on review, that is properly raised for the first time on review.

[00:10:47] Speaker 00:
Further, I mean... This is Judge Bryson.

[00:10:50] Speaker 00:
Let me see if I understand your argument on the improper appointment of the administrative judges.

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Is that predicated on the notion that there is no quorum on the MSPB at present?

[00:11:06] Speaker 02:
Mostly and realistically, yes.

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That's also predicated on the fact that should there have, you know, once there is a board, they would be then required

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to essentially ratify those administrative judges by officially appointing them.

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Basically, the Lucia decision said for the SEC judges that the, you know, commissioners had to actually go officially appoint their judges.

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And that was true for pretty much every administrative judge.

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The difference between the MSPB and all these other agencies is

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All these other agencies had superior officers that were able to do these appointments at the time.

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So it was quickly rectified.

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The Merit Assistance Protection Board has not had a quorum with which they could appoint these judges since January 2017.

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So none of the judges have been appointed as required by Lucia.

[00:11:59] Speaker 01:
Is there an appointments clause challenge that's currently pending before the board?

[00:12:03] Speaker 01:
Didn't we say we were going to defer to that in

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Javadji?

[00:12:11] Speaker 02:
Yes.

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In Javadji, there was an appointments clause challenge before the board.

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The difference between that case is that case was actually stuck at the MSPB level, and that was a jurisdictional question.

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The reason that this case is different is because we made it through the case without that challenge coming up, and this was then properly appealed to the Federal Circuit Court of Appeals without the case being

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dismissed without prejudice.

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So in that case, it was determined that you did not have jurisdiction yet because that question was still pending.

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But in this case, there's no jurisdictional issue.

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And obviously, the Federal Circuit has the authority to make that.

[00:12:52] Speaker 01:
I assume since there's no quorum, that case is still pending.

[00:12:57] Speaker 02:
Yes, and it's pending indefinitely.

[00:12:58] Speaker 02:
That's also a part of the issue with the process here is, you know, I think what the government is arguing for is that we shouldn't have the opportunity to say,

[00:13:07] Speaker 02:
two bites at the apple, which, you know, I understand the argument, but at the same time, and realistically, the alternative is zero bites at the apple.

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And timeliness is a consideration.

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It hasn't come into effect yet.

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There's no set law on it, but it is something discussed in Lauderdale briefly.

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One of the challenges that was raised there was that the amount of time that lasts prior to an appellate review, I believe in that case, it was something like six months,

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And what the court there said is that's fine for an amount of time to pass for a post deprivation due process.

[00:13:44] Speaker 02:
Um, and they did not actually get to setting a bright line rule of how long is needed, but they did say at some point you violate due process by not allowing, um, you know, a, a, a review within a certain period of time.

[00:13:59] Speaker 02:
And in the concurrence, they talk about, you know, tag, I believe tax cases or social security reviews.

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that had been done as long as a year out and that was okay.

[00:14:09] Speaker 02:
Um, so they don't know exactly when the time period is, but they're discussing periods like periods of years.

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Uh, here we're talking about a removal that took place on August 24th, 2018.

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And if Mr. Rodriguez wanted to wait for a correctly appointed, uh, administrative judge to take this case before it, we would still be waiting now in June of 2021, three years later.

[00:14:34] Speaker 03:
So, you know, especially... Council, you're well into your rebuttal time.

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If you'd like to save it, we'll give you three minutes back.

[00:14:43] Speaker 03:
Why don't we hear from the government now?

[00:14:47] Speaker 03:
Yes, Your Honor.

[00:14:51] Speaker 03:
Mr. Hellman.

[00:14:53] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:14:56] Speaker 03:
I assume you're talking about one of the cases we were talking about.

[00:15:01] Speaker 04:
Yes, Your Honor.

[00:15:05] Speaker 04:
Go ahead.

[00:15:08] Speaker 04:
I'm sorry.

[00:15:09] Speaker 04:
Were you referring to a specific case?

[00:15:10] Speaker 03:
The phone line is a little... We were talking about a helmet case.

[00:15:15] Speaker 03:
Please proceed.

[00:15:16] Speaker 04:
Sure.

[00:15:17] Speaker 04:
So this court should affirm the agency's removal of Mr. Rodriguez under 38 USB 714 because it is supported by substantial evidence and because Sayers resolves the issues with Section 714 that Mr. Rodriguez raises here.

[00:15:34] Speaker 01:
Counsel, how do you respond to the argument, though, that footnote and Sayers is really just dicta?

[00:15:41] Speaker 01:
I mean, it wasn't relevant to the ultimate basis for the decision at all.

[00:15:46] Speaker 04:
Well, to be sure, Sayers went back on the retroactivity issue.

[00:15:50] Speaker 04:
But the court, in where it addressed that footnote, it said it must resolve the differences between the parties regarding Section 714's meaning and effect.

[00:16:02] Speaker 04:
and essentially addressed that argument in the footnote.

[00:16:05] Speaker 04:
The parties, as here, argued different things.

[00:16:08] Speaker 04:
Mr. Sayers and Mr. Rodriguez argued that the agency imposing the substantial evidence standard was impermissible.

[00:16:14] Speaker 01:
The government... But really, all they said in Sayers was that, you know, we don't see anything in the text that explicitly says one way or the other.

[00:16:25] Speaker 01:
So, I mean,

[00:16:26] Speaker 01:
but it really didn't analyze the text or analyze the issue in any extent and it was not necessary to the decision making, right?

[00:16:36] Speaker 04:
That is correct.

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The ultimate decision did not hinge on that issue.

[00:16:43] Speaker 04:
The issue was briefed and the court did consider it even if in passing and

[00:16:48] Speaker 04:
to the extent that there would have been a question, one would expect the panel to flag it.

[00:16:53] Speaker 01:
I agree that there's not a more... Well, let me look at the text with you of 714.

[00:17:02] Speaker 01:
I mean, it says that the secretary can terminate or demote, et cetera, an employee if the secretary determines the performance or misconduct of the covered individual warrants such.

[00:17:16] Speaker 01:
But determined seems to suggest that whoever's making a determination has to do some actual analysis of the evidence in order to reach a definitive result.

[00:17:28] Speaker 01:
And yet, your definition is very vague.

[00:17:33] Speaker 01:
It says that evidence that a person might accept is adequate even though other reasonable persons disagree or evidence that a reasonable mind was accepted.

[00:17:45] Speaker 01:
I mean, it sounds so far removed from the concept of determining something that I'm not sure how it comports with the statute.

[00:17:55] Speaker 04:
That language that you quoted, Your Honor, is the substantial evidence standard.

[00:18:00] Speaker 04:
It's not so insubstantial as to not constitute determination.

[00:18:09] Speaker 00:
Mr. Hellman, this is Judge Bryson.

[00:18:12] Speaker 00:
I think we can all agree that the substantial evidence test as it is articulated with respect to review of administrative determinations by a court is that some reasonable person could conclude that the fact in question was established even though the tribunal that's applying the substantial evidence test might see it otherwise.

[00:18:41] Speaker 00:
But isn't that saying that the deciding official in the VA, if applying a substantial evidence test, could think, as in this case, Mr. Rodriguez didn't actually do the things that he's charged with, and I don't really believe that he is, that the charges of his misconduct are correct, but some reasonable person could so conclude and therefore,

[00:19:07] Speaker 00:
I'm going to remove him.

[00:19:08] Speaker 00:
Isn't that the effect of applying a substantial evidence test?

[00:19:14] Speaker 04:
I think that's what Mr. Rodriguez suggests would be a problem with applying that test.

[00:19:18] Speaker 00:
Well, but isn't that exactly what the substantial evidence test requires?

[00:19:25] Speaker 04:
It does require that some reasonable mind, and it doesn't... But not necessarily the mind of the deciding official, right?

[00:19:35] Speaker 04:
That's correct.

[00:19:37] Speaker 04:
And to the extent that it's used as an appellate standard, there is a decision that's being reviewed.

[00:19:44] Speaker 00:
But there's not a decision being reviewed when the fact finder, the deciding official, makes a determination of substantial evidence, right?

[00:19:56] Speaker 04:
That's right, but that's why I think in practice this concern doesn't really materialize.

[00:20:01] Speaker 04:
It's not that the deciding official would think, well, I wouldn't remove Mr. Rodriguez because I don't believe that the evidence demonstrates his misconduct, but some reasonable mind somewhere out there would remove him and therefore I'm going to proceed with the removal.

[00:20:17] Speaker 00:
But the VA handbook specifically says

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that it is the substantial evidence is the test and that it is a test as to whether a reasonable person might accept as adequate to support a conclusion.

[00:20:36] Speaker 00:
I'm reading from the handbook.

[00:20:38] Speaker 00:
Even though other reasonable persons might agree, that seems to me to basically invite the deciding official to conclude that as long as there's enough evidence that

[00:20:51] Speaker 00:
Some reasonable person could find it sufficient that that's good enough for me.

[00:20:59] Speaker 00:
Even though, in fact, maybe most of the time the deciding official would be otherwise inclined, but isn't that just opening the door to something less than a decision which the statute requires?

[00:21:16] Speaker 04:
Well, two points on that, Judge Bryson.

[00:21:18] Speaker 04:
First, I think the

[00:21:21] Speaker 04:
That's not this case.

[00:21:22] Speaker 04:
There's no argument here that the deciding official just thought that Mr. Rodriguez shouldn't be removed, but effectuated the removal based on some reasonable mind here.

[00:21:35] Speaker 01:
As far as... But, Council, how would we know that?

[00:21:37] Speaker 01:
How would we know that?

[00:21:38] Speaker 01:
I mean, what we have is a standard that was applied that would allow the official to do that.

[00:21:46] Speaker 01:
Did the official say, I'm not following this standard?

[00:21:51] Speaker 04:
No, Your Honor.

[00:21:52] Speaker 04:
I think you would know that in that case, and I think as Judge Bryson suggests, that would be opening the door so it wouldn't be the main run of cases.

[00:22:03] Speaker 04:
It would be an exceptional case where the deciding official would likely state in the decision saying, well, I disagree with this, but a reasonable mind somewhere

[00:22:13] Speaker 04:
could conclude that this is sufficient to sustain removal to remove the the employee and so I'm going to go ahead with that removal even though I personally do not think that the facts Merit removal then I think just the sort of the nature of that hypothetical suggests that it would it would be infrequent at best but likely to be sort of a non-concern because you're saying you're saying that if I give you a standard and say this is what you're to apply and

[00:22:42] Speaker 01:
unless you say that I don't like applying this standard, that somehow we're to assume they didn't follow it?

[00:22:53] Speaker 04:
Well, no, Your Honor.

[00:22:54] Speaker 04:
I think the problem with this hypothetical is that, yes, the standard can be read to say that not the deciding official, but somebody, some other reasonable mind finds this evidence sufficient.

[00:23:06] Speaker 04:
And so the deciding official overruling his or her own

[00:23:10] Speaker 04:
That's what I'm saying.

[00:23:11] Speaker 01:
You're saying they have to say that even though the background of the governing standard is stated directly that way.

[00:23:22] Speaker 04:
I think that they would in this unusual circumstance where they disagree.

[00:23:27] Speaker 04:
The deciding official here has the authority.

[00:23:30] Speaker 04:
They don't have to remove this individual.

[00:23:32] Speaker 04:
So the fact that they're choosing to remove him most likely suggests in most cases that the deciding official, him or herself, concludes that there's sufficient evidence to warrant removal.

[00:23:46] Speaker 04:
It's only the standard ends, I think,

[00:23:50] Speaker 04:
creates a bit of a distinction without a difference.

[00:23:53] Speaker 04:
Yes, there's a hypothetical situation where under the standard, the deciding official can depart from what the deciding official wants to do with respect to removal.

[00:24:02] Speaker 04:
So the deciding official doesn't think this warrants removal, but finds a hypothetical reasonable mind that could differ.

[00:24:13] Speaker 04:
But in practice, that's not going to happen to the extent that it ever does happen.

[00:24:17] Speaker 00:
If that's true, then it's a little hard for me to understand why the VA felt that it was necessary or appropriate to adopt substantial evidence as the test as opposed to simply saying a preponderance that the deciding official has to believe and make a finding of fact that these events that were charged happened.

[00:24:37] Speaker 00:
Instead, the VA has evidently purposely made the

[00:24:41] Speaker 00:
evidentiary test more relaxed for itself.

[00:24:49] Speaker 00:
And then, to add to that, the administrative judge says that, well, I don't see any reason that the VA, the deciding official, should be held to a higher standard than I am.

[00:25:03] Speaker 00:
And I'm only held to a substantial evidence test.

[00:25:07] Speaker 00:
And we know what the VAJ

[00:25:09] Speaker 00:
at the AJ level, substantial evidence just means a reasonable person out there could so conclude.

[00:25:17] Speaker 00:
And therefore, the VA is doing, according to the AJ, nothing more than an AJ would do in looking at the evidence.

[00:25:26] Speaker 00:
That strikes me as a potentially very troubling series of inferences.

[00:25:38] Speaker 04:
Well, two points on that, Judge Bryson.

[00:25:39] Speaker 04:
First, the VA, I think, was following congressional command in Section 714, which is supposed to create a less rigorous alternative to removals than existed under Title V, Chapter 75 for misconduct.

[00:25:56] Speaker 04:
And so, in adopting a substantial evidence test, perhaps the VA's view was that it is

[00:26:06] Speaker 04:
in possibly in hard cases where the evidence may be an equipoise rather than going with a preponderance standard.

[00:26:15] Speaker 01:
But wait, Congress, I understand that there was an intent to make it easier, but Congress specifically chose to lower the evidentiary standard at the MSPB level of review, not the agency level of review.

[00:26:30] Speaker 04:
That is true, but Congress didn't specify the level of review that the agency was required to use.

[00:26:35] Speaker 00:
But the agency has always previously, as I understand it, required a finding.

[00:26:42] Speaker 00:
And now, with a statute that, as Jojo Malley says, did not address the agency's standard of review, the agency has decided to change that standard.

[00:26:52] Speaker 00:
Isn't that right?

[00:26:55] Speaker 04:
I think the agency previously used the performance standard in misconduct type.

[00:27:03] Speaker 04:
appeals in misconduct removals under Chapter 75.

[00:27:07] Speaker 04:
I don't think the agency used that for performance-based removals under Chapter 43.

[00:27:14] Speaker 00:
But in misconduct, the agency has always used preponderance, right?

[00:27:20] Speaker 04:
Right.

[00:27:21] Speaker 04:
But here, Section 714 covers both misconduct and performance removals.

[00:27:26] Speaker 04:
And so perhaps the agency, and I don't think we have this

[00:27:32] Speaker 04:
spelled out expressly, but it could be that the agency is reserving for itself the right to use a lower standard if a performance-based removal.

[00:27:41] Speaker 00:
But are you saying though that Chapter 43, I understand that Chapter 43 has less review at the MSPD level, but surely if someone is found to have been underperforming, that isn't a substantial evidence review

[00:27:57] Speaker 00:
under Chapter 43 at the agency level, is it?

[00:28:00] Speaker 00:
Is there any law to that effect?

[00:28:04] Speaker 00:
I thought that also was preponderance.

[00:28:06] Speaker 00:
The only thing Chapter 43 does is to say that the MSPB's review is more restrictive than it is under Chapter 75, under Lesiecki.

[00:28:27] Speaker 01:
4302 specifically says that the agency has to demonstrate unacceptable performance and that that's always been a preponderance standard, but the MSPB level of review is substantial evidence.

[00:28:50] Speaker 04:
Well, and this issue wasn't briefed with respect to what level of

[00:28:57] Speaker 04:
evidence is sufficient for the agency to sustain removal based on performance.

[00:29:06] Speaker 04:
I don't think 4302 specifies what the agency is required to do and even if it has been in practice a preponderance standard, I think again, there's very little daylight between a substantial evidence standard and

[00:29:23] Speaker 04:
preponderance standard as far as the deciding official is concerned because there's no other reasonable mind that the deciding official is reviewing.

[00:29:34] Speaker 04:
The deciding official, in fact, is that initial reasonable mind and to the extent that the deciding official doesn't think that there's evidence

[00:29:44] Speaker 04:
supporting their removal, the deciding official isn't going to go out of his or her way to then say, well, I wouldn't do this, but somebody else, some other hypothetical reasonable person would find this to be sufficient.

[00:29:57] Speaker 04:
And I think it's possible that there may be some very narrow cases where the evidence is so inconclusive that that hypothetical materializes.

[00:30:06] Speaker 04:
But I think in that case, the reviewing certainly the board on review in this court would have the basis in the decision

[00:30:14] Speaker 04:
of the deciding official specifying that that was indeed the case.

[00:30:19] Speaker 01:
Okay.

[00:30:19] Speaker 01:
Before you sit down, can I ask you about CARV versus SAL and what that does to your waiver argument with respect to the appointments clause?

[00:30:29] Speaker 04:
Yes, Your Honor.

[00:30:30] Speaker 04:
CARV versus SAL does not apply here because CARV versus SAL

[00:30:34] Speaker 04:
for a number of reasons.

[00:30:37] Speaker 04:
First, it discusses administrative exhaustion.

[00:30:40] Speaker 04:
Here we have, in addition to the administrative exhaustion, a litigation-type forfeiture, too, because Mr. Rodriguez didn't really pursue his appointments, clause, argument at this court.

[00:30:52] Speaker 04:
Now, he sort of did with respect to the Hellman case, but his reading of Hellman is incorrect.

[00:30:58] Speaker 01:
But also, Carr versus Saul... But you did assert specifically that they waived it because they didn't raise it to the board.

[00:31:05] Speaker 01:
Right?

[00:31:05] Speaker 01:
And CAR v. Saul directly addresses that question, right?

[00:31:08] Speaker 04:
It does.

[00:31:09] Speaker 04:
And CAR v. Saul is also a product of a claimant protective scheme at the Social Security Administration that doesn't apply here.

[00:31:16] Speaker 04:
Here, Mr. Rodriguez was represented by council, by the same council in fact, even at the agency level.

[00:31:22] Speaker 04:
CAR v. Saul is probably more akin to the veterans type cases where it's supposed to be a uniquely pro-claimant system at the board level.

[00:31:31] Speaker 04:
the applicants are applying per se and to impose an administrative waiver on them as Carvizal found would be unduly harsh.

[00:31:40] Speaker 04:
We don't have that concern here.

[00:31:42] Speaker 04:
But moreover, Mr. Rodriguez doesn't even pursue his appointment clause challenge in his opening, in his principal brief.

[00:31:49] Speaker 04:
He pursues it with respect to mitigating the penalty and sort of tries to fit it under Hellman.

[00:31:56] Speaker 04:
And we're not arguing with that part of his waiver, we're arguing the challenge to the

[00:32:00] Speaker 04:
the AJ's appointment under Lucia is waived because he didn't articulate that in his briefing and therefore it forfeits the argument now on appeal.

[00:32:10] Speaker 04:
And if there are no further questions, we respectfully request that you affirm the decision.

[00:32:15] Speaker 03:
Thank you, Counsel.

[00:32:16] Speaker 03:
Mr. Solomon has three minutes for a bottle.

[00:32:21] Speaker 02:
Thank you, Your Honor.

[00:32:22] Speaker 02:
Just quickly going back to the substantial evidence question, very quickly starting with

[00:32:27] Speaker 02:
The removal based on performance, one of the distinctions we do make in the brief is that removal based on performance has a completely different set of pre deprivation due process where the employee is being supervised and evaluated over the course of several months.

[00:32:43] Speaker 02:
So it's a completely different situation than what we have here.

[00:32:47] Speaker 02:
But going into the substantial evidence standard as far as the deciding official, firstly essentially what they're doing is by using a substantial evidence

[00:32:56] Speaker 02:
they're treating the proposal, officials' proposal, as almost an initial decision.

[00:33:02] Speaker 02:
And this is also not a hypothetical.

[00:33:05] Speaker 02:
If you look at C-12 of the appendix at the actual decision, paragraph one of the decision, it says, I found that Charges 1, 2, and 3, as stated in the Notice of Proposed Removal, were supported by substantial evidence.

[00:33:17] Speaker 02:
That's the standard that's used in the actual decision.

[00:33:21] Speaker 02:
It's doubled down as far as counsel at the board level and their submissions.

[00:33:26] Speaker 02:
And then, as far as the brief itself, which I cover on page 36, I discuss, I believe it's pronounced Omnaya and White, where if you have the wrong standard, if you're applying too low of a standard, it's not enough to say that, well, the deciding official probably would have still found it based on the other standard.

[00:33:45] Speaker 02:
The entire decision is tainted, and the Oman solution is remand, but even setting this aside,

[00:33:52] Speaker 02:
The fact that the deciding official does not have the full record, they do not have an opportunity for a hearing with cross-examination as required by Lauderdale.

[00:34:00] Speaker 02:
That's first available to the administrative judge.

[00:34:04] Speaker 02:
So revisiting kind of what I was discussing earlier with the appointments clause, you can have a superior officer who's sitting on the board in review of, you know, at the second level, but in review of an inferior officer's decision.

[00:34:18] Speaker 02:
So here we have the director at the VA facility.

[00:34:21] Speaker 02:
who makes these determinations, and a superior officer of the United States can disagree both on the factual determination and on the level of penalty based on their preponderance of the evidence review de novo, but because they're stuck at the substantial evidence review, they're handcuffed to go with what the deciding official who did not have the full record decided on, which creates issues, you know, the same as in Lin Hellman where we can't have an inferior officer or a superior officer being called into question by an inferior officer,

[00:34:49] Speaker 02:
Here we have a superior officer of the United States who can even in disagreeing with an inferior officer has no power to actually do anything about it because they're handcuffed by the substantial evidence family.

[00:35:01] Speaker 02:
Thank you, Your Honor.

[00:35:04] Speaker 03:
Thank you.

[00:35:04] Speaker 03:
Both counts will be submitted.