[00:00:08] Speaker 01:
Thank you.

[00:00:09] Speaker 01:
May it please the court.

[00:00:10] Speaker 01:
You can take your mask.

[00:00:14] Speaker 04:
May it please the court.

[00:00:15] Speaker 04:
My name is Christopher Landrigan.

[00:00:17] Speaker 04:
I represent the petitioner in this case, Joseph Vallis.

[00:00:21] Speaker 04:
I'd like to first address the relation between Mr. Vallis' performance plan and the charge of failure to follow instructions.

[00:00:28] Speaker 04:
When a performance plan that establishes expectations

[00:00:34] Speaker 04:
for completing routine, repetitive, complex tasks.

[00:00:41] Speaker 01:
the deciding official on the board heard in not considering his evaluation in connection with the charge and the penalty.

[00:00:56] Speaker 01:
We only set aside decisions if there's harmless error.

[00:01:03] Speaker 01:
With respect to the charge, it seems to me that your client has admitted

[00:01:09] Speaker 01:
all the facts relating to the charge, I don't understand under those circumstances how it could be harmful error not to consider the evaluation, since there's no real dispute about the facts.

[00:01:24] Speaker 01:
Let's put to one side the question of the penalty, but just in terms of whether the charge was established, I just don't see where there's an issue here.

[00:01:36] Speaker 04:
Mr. Vales would not dispute those instances of errors, but what we would dispute is that when a performance plan specifically recognizes, anticipates, and allows that he is going to make some error in adjudicating between 14 and 16 applications at his desk per hour, that the agency has to prove more than simply a few instances of error.

[00:02:00] Speaker 04:
The agency would have to prove that he committed a different type of error than his plan specifically allows or that he committed more than the number of errors that the plan specifically allows.

[00:02:14] Speaker 01:
Why is that so?

[00:02:15] Speaker 01:
That's not part of the charge.

[00:02:17] Speaker 01:
The charge doesn't say he committed more errors than most people.

[00:02:21] Speaker 04:
So the charge was based on a series of instructions, all of which relate directly to his performance expectations.

[00:02:27] Speaker 04:
Complete adjudication.

[00:02:28] Speaker 01:
And there's no issue that he failed to comply with the instructions, right?

[00:02:32] Speaker 04:
We would say that those instructions to complete these tasks, so long as it's in this situation when you have routine tasks that you're completing many of per hour, and instructions such as complete these as soon as possible, that was the instruction, or promptly, appropriately, properly,

[00:02:52] Speaker 04:
implicitly includes a recognition that you're going to make some error world doing so.

[00:02:58] Speaker 04:
Otherwise, it would make the performance plan pointless.

[00:03:01] Speaker 04:
The performance plan sets out production rates, very detailed production rates of how many you have to accomplish per hour in different settings.

[00:03:09] Speaker 02:
It also provides... Before we keep going with the performance review, Mr. Velas was previously disciplined for failure to follow instructions, right?

[00:03:22] Speaker 02:
Correct.

[00:03:23] Speaker 02:
Was there any objection to disciplining him for failure to follow instructions that time because somehow those were things that related to his performance plan?

[00:03:39] Speaker 02:
As I understand it, the specifications there of failure to follow instructions are very similar to the ones that we have in front of us here.

[00:03:47] Speaker 04:
You're absolutely right.

[00:03:48] Speaker 04:
Three specifications along the same lines.

[00:03:51] Speaker 04:
Our argument would have applied to that.

[00:03:52] Speaker 04:
We note that it was a five-day suspension, so he's unable to appeal that to the Merit Systems Protection Board.

[00:03:58] Speaker 04:
In response to that suspension, he did raise on his own accord a similar issue that those were unintentional mistakes.

[00:04:05] Speaker 04:
And so he simply doesn't have the form to be able to adjudicate that issue.

[00:04:10] Speaker 04:
But our argument would apply to a situation like that, where our point would be that if you give somebody a performance plan, give specific production rates, average rates of adjudications, and says that you can make so much error when doing so,

[00:04:25] Speaker 04:
then looking at the person's performance and identifying just instances of delay or an error doesn't prove that you weren't doing them as soon as possible or properly and appropriately.

[00:04:38] Speaker 04:
You were meeting your performance expectations.

[00:04:41] Speaker 04:
Otherwise, again, the plan would be pointless.

[00:04:44] Speaker 02:
Well, I'm getting a little lost.

[00:04:47] Speaker 02:
You seem to be arguing two things.

[00:04:49] Speaker 02:
One is,

[00:04:52] Speaker 02:
saying or instructing someone to do some tasks as soon as possible is either not clear enough or already assumes that there's going to be a little bit of error that takes place.

[00:05:08] Speaker 02:
And then a separate argument you're making is, well, you can't possibly discipline someone on conduct-based grounds when these matters overlap with things that are contemplated in a performance plan.

[00:05:25] Speaker 04:
our argument would only apply and agree that the instruction generally, complete this as soon as possible.

[00:05:32] Speaker 04:
We are not arguing that that's always vague in any context.

[00:05:36] Speaker 04:
I imagine in most contexts it's actually fairly clear.

[00:05:40] Speaker 04:
Our argument only applies to when that person is given a performance plan that sets out specific adjudication production rates.

[00:05:48] Speaker 04:
When you say as soon as possible, it's reasonable to then, in that specific instance, understand that instruction as meaning I need to meet the performance rates.

[00:05:58] Speaker 04:
So, and which he did.

[00:05:59] Speaker 04:
We did during the time in which his conduct is being evaluated.

[00:06:03] Speaker 04:
So if you're completing, again, 14 to 16 applications per hour at your desk, and that's your expectation.

[00:06:11] Speaker 04:
You're meeting that.

[00:06:12] Speaker 04:
A supervisor generally reminds you to do them as soon as possible.

[00:06:18] Speaker 04:
Then you would reasonably understand that that would mean meet your production rates.

[00:06:23] Speaker 04:
Do 14 to 16 per hour at my desk, or I think it was 6 to 9 at the public counter.

[00:06:28] Speaker 04:
He was doing that.

[00:06:30] Speaker 04:
It would be completely pointless to set out production rates and essentially say that that's what we mean by doing them properly.

[00:06:36] Speaker 01:
He wasn't charged with failure to meet the production rates.

[00:06:38] Speaker 01:
He was charged with specific instances where he failed to follow instructions.

[00:06:44] Speaker 01:
Let's assume for the moment that we conclude that any

[00:06:48] Speaker 01:
error if there was one with respect to consideration of the evaluation was harmless with respect to the proof of the charge and that the charge was proven.

[00:06:59] Speaker 01:
Turn to the penalty and tell us why the treatment of the evaluation was harmful error in your view with respect to the penalty determination.

[00:07:13] Speaker 04:
It was absolutely harmful, particularly given that the deciding official

[00:07:17] Speaker 04:
relied on the fact that he believed management had lost trust in Bellis's performance.

[00:07:23] Speaker 04:
The deciding official admitted that he did not read the selling portions of this performance appraisal.

[00:07:29] Speaker 04:
which stated that VALIS was helping to assist the Colorado Passport Agency meet its goals in 2019 and that management looked forward to its continued progress and development in 2019.

[00:07:41] Speaker 04:
We'd also argue the production of the performance plan as a whole rebuts the idea that the signing official mentioned a phrase that his repeated misconduct was suggestive of intentionality.

[00:07:54] Speaker 04:
If he's referring to the prior suspensions, the one suspension regarding just a handful of issues happened in the beginning of 2018.

[00:08:01] Speaker 04:
Then the performance review kicks in.

[00:08:04] Speaker 04:
Two progress reviews, both positive, and then a performance review for the entire year of 2018 was successful.

[00:08:12] Speaker 04:
So if anything, it's demonstrating the opposite intent.

[00:08:14] Speaker 01:
This is the person.

[00:08:15] Speaker 01:
Well, but half of the instances, this issue about the performance evaluation

[00:08:22] Speaker 01:
relates only to charge one.

[00:08:25] Speaker 01:
And with respect to charge one, it relates to only half of the specifications, correct?

[00:08:31] Speaker 04:
I believe it relates, depending on, it was issued in February 2019.

[00:08:36] Speaker 04:
And so all those qualitative comments would apply.

[00:08:41] Speaker 04:
It was only, I believe, two instances.

[00:08:43] Speaker 04:
But right, there would be a little over half in charge one.

[00:08:47] Speaker 04:
But the relevance to the penalty would not be limited to charge one at all.

[00:08:52] Speaker 04:
following internal control processes such as the adjudication stamp issue or the passport on the application on the photocopier, those are still looked at through your performance appraisal.

[00:09:03] Speaker 04:
It discusses how you maintain internal control processes and he passed those.

[00:09:08] Speaker 01:
Where did you argue in your brief that the performance evaluation related to the other charges in terms of the penalty?

[00:09:17] Speaker 01:
Maybe I missed it.

[00:09:18] Speaker 01:
I thought that the

[00:09:19] Speaker 01:
argument was exclusively directed to the impact on the significance of charge one.

[00:09:25] Speaker 04:
And I'm sorry if it was unclear.

[00:09:27] Speaker 04:
We were limiting our argument that the performance plan proves that charge one is unsupported.

[00:09:36] Speaker 04:
So we're limiting the plan as far as the proof of the charge, but we were not limiting the argument that the plan generally proves that the penalty was reasonable, as we would argue in that section of the brief.

[00:09:52] Speaker 01:
Does it have any bearing on the penalty other than, in your view, suggesting that some of the specifications in charge one were less serious than the administrative judge and the deciding official thought they were?

[00:10:07] Speaker 04:
And I would actually argue that there was two errors with respect to the penalty.

[00:10:12] Speaker 04:
One, that the performance appraisal would show that these errors were not the type, and I went over my time, if you don't mind me finishing the answer, were not the type that would rise to level of seriousness warning or removal.

[00:10:26] Speaker 04:
But the other part of the issue of the commonplace nature of the errors was that the board disregarded that evidence because it looked at it only under a disparate treatment analysis, as in,

[00:10:37] Speaker 04:
If else could produce a person who is charged with the same number of charges.

[00:10:41] Speaker 01:
Well, I understand that argument, but I'm just wondering, is that error, if it was an error, harmful error?

[00:10:49] Speaker 04:
Absolutely.

[00:10:50] Speaker 01:
What is the evidence that it would have come out differently on the penalty if they'd given weight to the performance evaluation?

[00:11:01] Speaker 04:
Certainly in combination with the complex nature, but because the deciding official relied heavily on the fact that management had lost trust in Ballas and that his misconduct was suggestive of intentionality, that he couldn't be rehabilitated, where the performance appraisal shows that this is a person who's not only trying to meet his expectations as a passport specialist, but he was doing so.

[00:11:23] Speaker 04:
And he should be given the opportunity to continue to do so.

[00:11:26] Speaker 04:
Thank you.

[00:11:32] Speaker 01:
We'll give you two minutes for rebuttal.

[00:11:53] Speaker 00:
Good morning, Your Honors, and may it please the Court

[00:11:56] Speaker 00:
The court should affirm the agency's removal of Mr. Valles here because it is supported by substantial evidence and the penalty determination was reasonable.

[00:12:06] Speaker 01:
Okay, but it seems to me there's a pretty good argument that the board erred in dismissing the relevance of the performance evaluation as being somehow irrelevant to the chart.

[00:12:20] Speaker 01:
That's difficult to make sense of, frankly.

[00:12:25] Speaker 01:
Let's assume for the moment that we were to conclude that that was error.

[00:12:31] Speaker 01:
Is it harmful error?

[00:12:37] Speaker 00:
I want to make sure I understand your question.

[00:12:39] Speaker 00:
With respect to the performance evaluation, are you addressing the first prong, the charges, or the reasonableness?

[00:12:46] Speaker 01:
Well, I was asking about both.

[00:12:49] Speaker 01:
It seems to me that

[00:12:51] Speaker 01:
They are arguing that it was harmful error both with respect to the charge, the determination of the charge, and to the penalty.

[00:12:58] Speaker 01:
And with respect to the penalty, they're basically saying these incidents that happened in 2018, about half of the incidents that form the basis for charge one, couldn't, weren't all that serious because they weren't even mentioned in the performance evaluation.

[00:13:13] Speaker 01:
And the performance evaluation said that he was performing fully satisfactorily.

[00:13:21] Speaker 00:
Okay, so with respect to the the impact of the performance evaluation and your the your honors assumption that The board did err in not considering it the performance evaluation Doesn't cover first of all all of the specifications.

[00:13:40] Speaker 00:
So there's at least seven some under charge one and

[00:13:46] Speaker 00:
one under Charge 3 that fall outside the time range of that.

[00:13:49] Speaker 00:
So it wouldn't even be relevant to those.

[00:13:54] Speaker 00:
It was not harmful error to not consider it for the first prong of the evaluation, whether the charge conduct occurred, because Mr. Valas seems to view this as a Chapter 43 performance removal.

[00:14:12] Speaker 00:
But it's not.

[00:14:13] Speaker 00:
It's a Chapter 75

[00:14:15] Speaker 00:
for cause removal.

[00:14:16] Speaker 00:
And those can be based on performance.

[00:14:19] Speaker 01:
And I think the Lobson case... It can't be that someone is performing fully successfully if he refuses to follow instructions, right?

[00:14:29] Speaker 00:
The performance review doesn't capture all the aspects of his job.

[00:14:35] Speaker 01:
And it, yes... It's got to be relevant to the performance review.

[00:14:39] Speaker 01:
I mean, you can remove somebody for failure to follow instructions under Chapter 43, can't you?

[00:14:46] Speaker 00:
You would have to follow a different process.

[00:14:48] Speaker 00:
You would have to put them on a performance improvement plan.

[00:14:50] Speaker 01:
That's to say that's what you do under Chapter 43.

[00:14:53] Speaker 01:
Right.

[00:14:54] Speaker 01:
But you could say someone should be removed for poor performance under Chapter 43 for failure to follow instructions, correct?

[00:15:03] Speaker 00:
Yes.

[00:15:04] Speaker 00:
Yes, you can.

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

[00:15:05] Speaker 00:
Yeah.

[00:15:06] Speaker 00:
But the failure of the performance review to note these things doesn't

[00:15:13] Speaker 00:
create harm in the removal.

[00:15:16] Speaker 00:
Again, because under Chapter 75, you look at whether the charge conduct occurred and was proven.

[00:15:21] Speaker 00:
And here it was.

[00:15:22] Speaker 00:
And so the fact that the performance review may have gone too easy on Mr. Vias.

[00:15:28] Speaker 00:
And I think he can argue that maybe he wasn't on notice.

[00:15:31] Speaker 00:
And if he didn't have the prior suspensions, for instance, you could say,

[00:15:35] Speaker 00:
You know, this is unfair because I didn't know that I was supposed to follow instructions and being removed for failure to follow instructions, but my performance plan doesn't say anything about that.

[00:15:47] Speaker 00:
But that's not, that's a different argument.

[00:15:50] Speaker 01:
Okay, so let's assume that it's harmless error in respect to the proof of the charge because they're not really disputing that these events happened with respect to the specifications in 2018.

[00:16:01] Speaker 01:
What about its relevance to the penalty?

[00:16:03] Speaker 01:
Because doesn't it suggest that these incidents, assuming that they happened, weren't that serious because they were not treated as serious in the performance evaluation?

[00:16:19] Speaker 00:
It is one of the factors that would be considered in the penalty determination.

[00:16:23] Speaker 00:
And on a blank slate, I think it may be a different case if this was the first

[00:16:30] Speaker 00:
instance of discipline for Mr. Vales if this the only thing he if he had sort of an unblemished record and a performance review and then the agency is saying well these are removable charges I think that would be a different argument here the the board did consider his years of federal service and his otherwise acceptable performance satisfactory performance but it just it was outweighed by the two prior suspensions it was outweighed by other factors to

[00:17:00] Speaker 00:
And I just briefly want to point out, it's not that he was failing to meet his production rates.

[00:17:05] Speaker 00:
It's that he was failing to follow the workflow, which may not necessarily be... He was not doing what he was told to do.

[00:17:15] Speaker 00:
He was repeatedly not doing what he was told to do and that was having an impact, but it wasn't the sort of thing where he was unable to process the applications because of the substance of the applications.

[00:17:25] Speaker 00:
He wasn't properly updating the tracking system.

[00:17:28] Speaker 00:
He was putting things, taking things out without noting them, putting things back without having finished them, which has an impact on the rest of the passport adjudication office.

[00:17:41] Speaker 00:
And I think, again, the Nexus part was established and not contested.

[00:17:45] Speaker 00:
So it's not that he's struggling to keep up processing the applications.

[00:17:51] Speaker 00:
His performance review says, well, you're doing fine, but then he gets removed for not keeping up his production rates.

[00:17:59] Speaker 00:
The production rates aren't at issue here.

[00:18:01] Speaker 00:
It's more the failure to properly cashier.

[00:18:06] Speaker 01:
OK, but their argument is if these failure to follow instructions, the 2018 specifications in charge one, were serious or significant,

[00:18:16] Speaker 01:
They would have been mentioned in the performance evaluation.

[00:18:19] Speaker 01:
The fact that they weren't mentioned in the performance evaluation suggests that they weren't that serious.

[00:18:25] Speaker 01:
That supports our notion that the penalty of removal was unreasonable.

[00:18:30] Speaker 01:
That is what I understand the argument to be.

[00:18:33] Speaker 01:
What's your response to that?

[00:18:36] Speaker 00:
The response is twofold, Judge Dyke.

[00:18:41] Speaker 00:
Standing alone, each charge may not have been serious enough to merit a mention of performance review, but combined and exceeding the duration of the performance review, there are several sophistications after that, the aggregation of those creates more of a serious

[00:19:00] Speaker 00:
infraction for charge one.

[00:19:01] Speaker 00:
But there are also three other charges including non-performance based charges.

[00:19:07] Speaker 02:
Following up on Judge Dyck's question, I mean you can see our concern from our perspective that if all of the specifications identified that occurred in 2018 really were serious problems, certainly

[00:19:24] Speaker 02:
the combination of all of them creating a pattern of a problem, it somehow would have been reflected in his performance review for 2018.

[00:19:31] Speaker 02:
And so that's a concern with, by my count, six of the 11 specifications to support Charge 1.

[00:19:40] Speaker 02:
But even putting aside those six specifications, there are still five other specifications to support Charge 1 that were adopted below.

[00:19:51] Speaker 02:
And those all occurred in 2019.

[00:19:54] Speaker 02:
And so therefore, on the record, there is no conflict for those specifications with any performance review.

[00:20:02] Speaker 02:
And I guess what I'm wondering is, if we only looked at the 2019 actions that led to those five specifications to support charge one, is there anything in the record that would suggest that the deciding official would have done something different than have the removal penalty here?

[00:20:26] Speaker 02:
in light of five specifications supporting charge one instead of 11 specifications supporting charge one and in the context of the fact that Mr. Valis had been suspended twice before for various different reasons.

[00:20:45] Speaker 00:
There's nothing in the record to suggest that the deciding official would have

[00:20:52] Speaker 00:
gone with a lesser penalty if only five of those specifications were sustained for charge one.

[00:20:58] Speaker 00:
And to point out, you only need one specification of many to support a charge.

[00:21:02] Speaker 00:
I think we argued that in our brief with respect to charge three, because Mr. Rice doesn't even dispute specification five under that charge.

[00:21:10] Speaker 00:
And so as long as there's one specification that's bound to be supported, that charge is sustained.

[00:21:20] Speaker 00:
Here the pattern and the prior suspensions for essentially the same type of infraction of failure to follow Follow procedure and to move these cases to properly properly account for the case handling because they don't want to lose sight of these passport applications those are

[00:21:43] Speaker 00:
Those were the same types of charges that led to his five-day suspension.

[00:21:47] Speaker 00:
They were the same types of charges that occurred in 2019.

[00:21:51] Speaker 00:
And they're similar to the charges that occurred in 2018 that were not mentioned in the performance review.

[00:21:59] Speaker 00:
That performance review, for whatever reason, chose not to mention them.

[00:22:06] Speaker 00:
But the combination of them is sort of the repeated pattern is what the deciding official looked at when he considered one of the factors, you know, rehabilitation and concluded reasonably that based on Mr. Valas's track record, he's not capable for whatever reason, intentional or not, and we're not arguing intentionality and we don't have to establish intentionality.

[00:22:34] Speaker 02:
But for whatever reason, Mr. Vallis has shown that he is incapable of following instructions such that... Was there some finding that he has a resistance to improve and just minimized his actions?

[00:22:52] Speaker 02:
And so those were reasons why ultimately management lost confidence in him?

[00:22:58] Speaker 00:
There is testimony in the record of that, Your Honor, that there's testimony from his supervisors that other individuals have made similar types of mistakes, but after one mistake they correct it and they no longer make those mistakes, whereas Mr. Valles here

[00:23:14] Speaker 00:
continue to make these mistakes.

[00:23:16] Speaker 01:
It's sort of a question of who has the burden here under our decision in LaChance.

[00:23:23] Speaker 01:
You know, as you pointed out, there's no testimony that these five or six instances from 2018 were critical in his determination.

[00:23:37] Speaker 01:
On the other hand, there's no testimony the other way.

[00:23:39] Speaker 01:
In fact, he specifically

[00:23:41] Speaker 01:
declined to address whether the charges would have been sustained or the penalty would have been sustained if one of the charges had been eliminated.

[00:23:52] Speaker 01:
So who has the burden here to show that the 6-2018 specifications wouldn't have made a difference in terms of the penalty or would have made a difference in terms of the penalty?

[00:24:11] Speaker 00:
I think Mr. Dallas has the burden to show that any error was harmful.

[00:24:17] Speaker 00:
Here the deciding official, and again we're talking not just about the six festifications of charge one, we're talking about other charges including charges that wouldn't have nothing to do with the performance review, the charge of having the

[00:24:34] Speaker 00:
the wine glass and the inappropriate conduct doesn't seem to be.

[00:24:37] Speaker 00:
No one disputes that that falls anywhere near the performance review issue.

[00:24:41] Speaker 00:
And so this court doesn't, you know, this court reviews the penalty determination.

[00:24:48] Speaker 01:
What case has the burdens on him to show that it's harmful?

[00:24:56] Speaker 00:
I believe

[00:25:03] Speaker 00:
I'm not recalling a case off the top of my head that says that the burden.

[00:25:14] Speaker 00:
I think this court's precedent generally puts the burden on the party claiming harmful error to demonstrate that it's harmful.

[00:25:21] Speaker 00:
But I'm not recalling a specific case name, Judge Zeig.

[00:25:29] Speaker 00:
If this court has no further questions, we respectfully request that the decision below be

[00:25:34] Speaker 00:
Thank you.

[00:25:39] Speaker 01:
Mr. Landrigan, you've got two minutes.

[00:25:49] Speaker 04:
Thank you, Your Honor.

[00:25:50] Speaker 04:
I'd like to first note the deciding officials testified that he did not know what penalty that he would choose if even one specification was not supported.

[00:25:59] Speaker 04:
I'd also like to point out to the point of if we're splitting it at the six and five, certainly if

[00:26:04] Speaker 04:
Six specifications of these type of failure to follow instructions didn't warrant discussion in his performance appraisal.

[00:26:12] Speaker 04:
You don't understand why five would.

[00:26:14] Speaker 04:
And it goes to our point of there's a certain amount of error or delay that's reasonably anticipated and allowed.

[00:26:21] Speaker 04:
The performance appraisal

[00:26:24] Speaker 04:
And goes to the reasonableness of the penalty, but I'd also like to focus as well on we not only show that the performance appraisal shows that these were minor issues, not warranting removal.

[00:26:36] Speaker 04:
The record also shows that these were in fact commonplace.

[00:26:40] Speaker 04:
Didn't hear it just from Valis.

[00:26:41] Speaker 04:
There was passport specialists who served for both of them 10 years who talked about the commonplace nature.

[00:26:48] Speaker 04:
And not just of the errors in adjudication, but the other issues, leaving a adjudication stamp.

[00:26:56] Speaker 04:
There's testimony that was left unsecured every day at the public counter, which wasn't even alleged here, and that the ramifications for that were minor.

[00:27:04] Speaker 03:
So also the... Mr. Landrigan?

[00:27:06] Speaker 03:
Yes.

[00:27:07] Speaker 03:
Yes.

[00:27:08] Speaker 03:
It's Judge Lind.

[00:27:10] Speaker 03:
Do you dispute what Mr. Hellman said about the burden to show harmful error being on vales?

[00:27:20] Speaker 04:
We do.

[00:27:21] Speaker 04:
Our burden is to show that the decision was arbitrary, capricious, unsupported by substantial evidence.

[00:27:28] Speaker 04:
This court has the authority to remand to the board if they find error and for the board to correct it.

[00:27:35] Speaker 03:
But whose burden is it to show that any error was harmful?

[00:27:44] Speaker 03:
Isn't that Mr. Vallis's burden?

[00:27:46] Speaker 04:
It would be harmful in the sense that it could have led to a different result.

[00:27:54] Speaker 04:
This court has remanded when there was legal error for the board to make a decision as to what impact that error would have.

[00:28:05] Speaker 04:
So I don't know, I don't believe we have the burden to, excuse me, going over time.

[00:28:08] Speaker 04:
I apologize.

[00:28:10] Speaker 04:
To show particularly that the penalty would have definitely warranted mitigation, this court has remanded for the board to make appropriate penalty determinations in the past in many cases.

[00:28:22] Speaker 04:
All right.

[00:28:23] Speaker 04:
Thank you.

[00:28:23] Speaker 04:
Thank you.

[00:28:24] Speaker 01:
Okay.

[00:28:24] Speaker 01:
Thanks both counsel.

[00:28:25] Speaker 01:
The case is submitted.

[00:28:27] Speaker 04:
Thank you.

[00:28:30] Speaker 01:
Our next case is number 20-2347, First Face Co., Limited versus Apple Inc.