[00:00:02] Speaker 01:
Our next case is AFGE Local 3438 versus Social Security Administration 2021-1972.

[00:00:11] Speaker 01:
Mr. Harris, please begin.

[00:00:17] Speaker 04:
Good morning and may it please the court.

[00:00:19] Speaker 04:
Your Honor, the arbitrator in this case inappropriately denied the attorney fees contrary to the back payout.

[00:00:28] Speaker 04:
We are respectfully asking that this court

[00:00:30] Speaker 04:
rule that the fees are warranted in the interest of justice, return the matter to the arbitrator for determination on the appropriate amount of fees which are due.

[00:00:40] Speaker 03:
Mr. Harris, could we please first talk about this court's read decision, which seems to plainly require us to dismiss your appeal because

[00:00:53] Speaker 03:
Your union does not have a right to appeal this decision by the arbitrator.

[00:01:03] Speaker 04:
We would disagree that Lee stands for that position.

[00:01:07] Speaker 04:
Lee had nothing to do with attorney fees.

[00:01:13] Speaker 04:
Lee had to do with an MSPB denial.

[00:01:18] Speaker 04:
It was not an arbitration.

[00:01:19] Speaker 04:
The union did not allege any injury to itself whatsoever.

[00:01:23] Speaker 04:
in that case.

[00:01:25] Speaker 03:
Didn't Reid do a definitive construction of Section 7703A1 for the word employee?

[00:01:34] Speaker 03:
An employee has a right to make this kind of appeal and then concluded there that that has to be an individual because the statute itself defines employee to be an individual.

[00:01:49] Speaker 04:
Well, I think most notably in Reid,

[00:01:51] Speaker 04:
is that Reid drew a distinction between the MSPB and a negotiated procedure.

[00:01:57] Speaker 04:
And in Reid, it says that only the union may act as a representative when somebody chooses the negotiated grievance procedure.

[00:02:06] Speaker 04:
So we disagree that Reid forecloses the door on that.

[00:02:13] Speaker 04:
There have been other cases where the union has been grandstanding to appeal an MSPB decision on behalf

[00:02:25] Speaker ?:
was the negotiated agreements procedure.

[00:02:27] Speaker 04:
And the negotiated agreements procedure, the agreement doesn't have any stake in that.

[00:02:33] Speaker 04:
The parties to a negotiated agreements procedure are the agency and the union.

[00:02:39] Speaker 04:
The agreement has no right to pick arbitration on their own.

[00:02:44] Speaker 04:
They can't appeal.

[00:02:46] Speaker 04:
They can't seek attorney fees.

[00:02:48] Speaker 04:
And they can't appeal it to the Federal Labor Relations Authority.

[00:02:51] Speaker 04:
So just like the court said... Are you suggesting that Ms.

[00:02:54] Speaker 03:
Kidwell could not have appealed this denial of attorney's fees?

[00:03:00] Speaker 04:
Yes.

[00:03:00] Speaker 04:
Ms.

[00:03:00] Speaker 04:
Kidwell didn't pay for any attorney's fees.

[00:03:03] Speaker 03:
So are you saying that Ms.

[00:03:05] Speaker 03:
Kidwell wasn't harmed by the denial of the attorney's fees?

[00:03:10] Speaker 04:
I'd say the union was harmed.

[00:03:13] Speaker 03:
But Ms.

[00:03:13] Speaker 03:
Kidwell was not?

[00:03:16] Speaker 04:
Ms.

[00:03:16] Speaker 04:
Kidwell personally was not harmed by denial of attorney's fees.

[00:03:19] Speaker 03:
So then how do you have associational standing?

[00:03:22] Speaker 04:
Because associational standing requires that at least one individual member have the right to... Well, I believe, well, I think that she would have associational standing because she is injured as a member of the union.

[00:03:39] Speaker 04:
So yeah, technically, yeah, she is injured.

[00:03:42] Speaker 04:
Because she is a member of the union.

[00:03:43] Speaker 03:
She's injured because all members of the union are injured?

[00:03:47] Speaker 04:
Correct.

[00:03:49] Speaker 04:
Because if the union is not allowed to appeal a decision of a denial of attorney fees, then why would the union ever pay the freight for people in their cases?

[00:04:02] Speaker 04:
The union is allowed, and only the union can appeal a decision of attorney fees to the FLRA when it's 14 days or less.

[00:04:11] Speaker 04:
And we would argue that the same logic should be employed when it's above that.

[00:04:17] Speaker 04:
It simply doesn't make any sense otherwise.

[00:04:19] Speaker 03:
What I just don't understand is how could this court write an opinion saying that the union here does have the right to make this appeal in the face of what this court has already said in Reed and Senior Executives Association in Tierney where we plainly, continually, repeatedly said that the term employee as that's understood in 7703A1 is referring to the individual, the actual employee.

[00:04:48] Speaker 03:
and not someone else, not a union or not an attorney representing the union.

[00:04:55] Speaker 04:
Well, I think if you look at the statute, which is what the government kind of hung their hat on here, where it says employee or applicant, I think discourse is well within its bounds if it gets to the nitty gritty of it to simply rule that as having an absurd result, which is what happens if you follow that to its logical conclusion.

[00:05:12] Speaker 04:
Because you're right.

[00:05:13] Speaker 04:
If you take that literally and you say only an employee or applicant, then no labor union

[00:05:18] Speaker ?:
could ever appeal to this court a denial of attorneys.

[00:05:22] Speaker ?:
Across the country, it's done.

[00:05:24] Speaker 04:
We could appeal thanks to the MSPB.

[00:05:27] Speaker 04:
We could appeal thanks to the FLRA.

[00:05:29] Speaker 04:
But we could never seek judicial review of those attorneys, unless we just put her name as a petitioner.

[00:05:36] Speaker 01:
They're saying we should legislate, rewrite the statute.

[00:05:41] Speaker 04:
No, no, Your Honor.

[00:05:42] Speaker 04:
I'm not saying you should legislate.

[00:05:45] Speaker 04:
What I'm saying is that

[00:05:47] Speaker 04:
And I do believe associational barriers would be found in this case.

[00:05:52] Speaker 04:
And it has been before.

[00:05:54] Speaker 04:
It's not a new thing.

[00:05:56] Speaker 04:
And if you look at the NCEU case, the NCEU Merit Protection Board, that's what the court helped.

[00:06:03] Speaker 04:
They kind of dealt with this, who's the proper party here?

[00:06:06] Speaker 04:
And they simply said to allow the union to seek MSPB

[00:06:15] Speaker 04:
review and did not allow them to seek judicial review would serve no useful purpose.

[00:06:21] Speaker 04:
It says it would merely force NCE to bring an appeal in the name of one of its four members and not its own name, which doesn't serve a useful purpose.

[00:06:29] Speaker 03:
Are you talking about the D.C.

[00:06:30] Speaker 03:
Circuit case from 1984?

[00:06:31] Speaker 04:
Yes, Your Honor.

[00:06:34] Speaker 03:
Okay.

[00:06:34] Speaker 03:
But didn't we already discuss that and distinguish it in Reed as well as Senior Executives Association?

[00:06:42] Speaker 04:
I don't believe so.

[00:06:44] Speaker 03:
Again, I think Reid draws the distinction between... At the very end of the Reid opinion, doesn't this court do a discussion of that NTEU opinion from the D.C.

[00:06:54] Speaker 03:
Circuit and explain that the statute had been subsequently amended and so therefore whatever the D.C.

[00:07:02] Speaker 03:
Circuit did in 1984 is actually inapplicable to the relevant statute that was before the Federal Circuit in Reid.

[00:07:12] Speaker 03:
And then we reiterated that same point in Senior Executives Association.

[00:07:18] Speaker 03:
Am I misremembering that?

[00:07:20] Speaker 04:
Yes.

[00:07:20] Speaker 04:
Well, the way I read it is it draws a distinction between us.

[00:07:24] Speaker 03:
I'm sorry?

[00:07:25] Speaker 04:
The way we read it is it draws a distinction between us.

[00:07:29] Speaker 04:
And irrespective of that, I do believe associational standing is found here.

[00:07:35] Speaker 04:
I believe all the elements of that are met in this case.

[00:07:40] Speaker 01:
Council, putting aside the right to appeal, on the merits, 7701G1 says the board may require payment of reasonable attorney fees incurred by an employee.

[00:07:55] Speaker 01:
You said already that the employee didn't incur any fees here.

[00:08:02] Speaker 04:
Well, the union incurred the fees.

[00:08:04] Speaker 04:
It was paid for on behalf of their member.

[00:08:06] Speaker 01:
That's different.

[00:08:08] Speaker 01:
The union is set up to provide services for its employees, for its members, one of which apparently is representing them in grievance proceedings.

[00:08:19] Speaker 04:
Absolutely, absolutely, which is why we believe we have associational freedom.

[00:08:25] Speaker 04:
And that's kind of where we're at with that.

[00:08:28] Speaker 04:
We think that we have associational freedom, and we think we should be allowed to pursue it.

[00:08:32] Speaker 04:
And in fact, the only case cited by the government in this case was that it had to do with the attorney piece.

[00:08:37] Speaker 04:
was a case that went forward.

[00:08:40] Speaker 04:
They point out that standing wasn't challenged in that case, but clearly the court could have raised the issue and they did not.

[00:08:48] Speaker 04:
So that case was allowed to go forward.

[00:08:49] Speaker 04:
So this isn't like a totally new issue, but we believe we do have standing.

[00:08:55] Speaker 01:
Well, you say it's not a totally new issue, but I think somewhere it's stated here, it's a question of first impression.

[00:09:03] Speaker 01:
You don't have a case that holds that the union may appeal.

[00:09:07] Speaker 04:
Yes, and I don't believe we have one that says it can't.

[00:09:11] Speaker 04:
I think that it's kind of been skated around and never been fully determined.

[00:09:17] Speaker 04:
Again, we're talking about an arbitration proceeding, not an MSPB proceeding.

[00:09:22] Speaker 04:
So we feel it's differently, and a few things are set up differently.

[00:09:28] Speaker 04:
So that's why we're drawing that distinction, and we believe that the case law draws distinction.

[00:09:35] Speaker 04:
So that's where we're at with that.

[00:09:37] Speaker 04:
With respect to the underlying issue in this case, this entire case involved agreement to, it was alleged that she gave a particular claimant personally identifiable information to somebody that wasn't entitled to receive it.

[00:09:55] Speaker 04:
The agreement alleged the entire time that the claimant did give her permissions.

[00:10:01] Speaker 04:
Well, management in this case, instead of actually calling this claimant to determine that,

[00:10:06] Speaker 04:
They just referred the case to the OIG, and then they proceeded to indefinitely suspend her for 14 months without pay.

[00:10:14] Speaker 04:
Well, at the hearing, we had the claimant show up who had said, yes, I did in fact give her push.

[00:10:20] Speaker 04:
After hearing this case, the arbitrator ruled that the agency did not have the reasonable cause as required by the CBA law to sustain the decision to indefinitely suspend her.

[00:10:36] Speaker 02:
What's the posture of those investigations?

[00:10:39] Speaker 02:
Have any of them been finalized?

[00:10:43] Speaker 04:
It was immediately dismissed by OIG as soon as the arbitration was over.

[00:10:48] Speaker 04:
So that ended.

[00:10:50] Speaker 04:
The arbitration also found that the agency engaged in disparate treatment against their own past practices.

[00:10:58] Speaker 03:
Mr. Harris, are you saying there was never a criminal indictment?

[00:11:02] Speaker 04:
Never.

[00:11:03] Speaker 03:
OK.

[00:11:03] Speaker 04:
There was never a warrant, never a criminal indictment, nothing.

[00:11:08] Speaker 04:
When the union made a motion for attorney fees, the arbitrator completely reversed the decision and a two-page decision and said, well, what I meant was, and I quote this, that the agency's action was neither prohibited by law, contract provision, or was without merit.

[00:11:32] Speaker 04:
That's completely not true.

[00:11:33] Speaker 04:
The arbitrator determined in his first decision that they violated the contract and law, they engaged in bias and disparate treatment.

[00:11:43] Speaker 04:
When we filed the motion for attorney fees, he says, oh, they didn't violate the contract.

[00:11:49] Speaker 04:
It's just a completely ridiculous decision.

[00:11:53] Speaker 04:
The case law is secure on the fact that when an agency engages in disparate treatment,

[00:12:02] Speaker 04:
and they indefinitely suspend somebody without the required reasonable cause.

[00:12:09] Speaker 02:
The record to me, I find very troubling and the posture of the case and the decision in the situation of the attorney's fees, the reasonable cause analysis, all of that.

[00:12:25] Speaker 02:
You're running out of time and

[00:12:27] Speaker 02:
I'd like to hear from you, how do we get around Reed?

[00:12:32] Speaker 02:
How do we get around the fact that the statute says that has a word employee?

[00:12:38] Speaker 02:
And obviously, we have precedent that says an association is not an employee.

[00:12:45] Speaker 04:
I think you get around Reed easily by simply saying that the union has associational standing, which it does.

[00:12:51] Speaker 04:
This is what unions do.

[00:12:53] Speaker 04:
They advocate for their members.

[00:12:55] Speaker 04:
They litigate on behalf of their members.

[00:12:57] Speaker 04:
You know, that employee doesn't have to be here.

[00:12:59] Speaker 04:
She's long gone.

[00:13:00] Speaker 04:
We don't even know where that employee is.

[00:13:02] Speaker 04:
But the union paid the price for her arbitration, and that's what unions do.

[00:13:06] Speaker 04:
So the union clearly has associational standing.

[00:13:09] Speaker 04:
This is absolutely germane to what unions do.

[00:13:11] Speaker 04:
It's the bedrock of what unions do.

[00:13:12] Speaker 04:
It's represent on behalf of their members.

[00:13:15] Speaker 04:
And associational standing can be granted, and it has been granted in the past.

[00:13:19] Speaker 04:
And yes.

[00:13:21] Speaker 01:
You said that's what unions do, and that's why they select union dues, to pay for things like this.

[00:13:28] Speaker 04:
They do.

[00:13:29] Speaker 04:
They do.

[00:13:29] Speaker 04:
They do.

[00:13:30] Speaker 04:
And unions should have the right to file an appeal when they feel that they've been unjustly denied those things.

[00:13:36] Speaker 03:
Are you saying that even if a party has standing, constitutional standing in some form or another, including associational standing, Congress has no authority to confine the pool of people who might have constitutional standing and restrict it to a certain subset

[00:13:58] Speaker 03:
Like, let's say, for example, that is what the court concludes, that maybe there are a number of people or organizations that could argue they were harmed by a certain agency action, but then Congress chooses to pick a certain subset of that pool of people who actually have a right to a judicial review.

[00:14:22] Speaker 03:
Are you saying that that's somehow unconstitutional for Congress to do that?

[00:14:29] Speaker 04:
I don't think it's unconstitutional for Congress to limit the pool of people it can field.

[00:14:35] Speaker 04:
But I also believe that the associational standing is well established.

[00:14:43] Speaker 04:
And it's been used in this court and other courts for this very purpose.

[00:14:47] Speaker 04:
So I think it's there.

[00:14:50] Speaker 04:
I think clearly he has associational standing to pursue the interests of his members.

[00:14:59] Speaker 04:
That's where I'm at with that.

[00:15:02] Speaker 01:
Council, you elected not to save time for rebuttal.

[00:15:05] Speaker 01:
And in fact, you've just about used all your time.

[00:15:09] Speaker 01:
So there will be no rebuttal.

[00:15:11] Speaker 01:
We'll hold you to your decision.

[00:15:13] Speaker 01:
But do you have a final thought?

[00:15:17] Speaker 04:
Just that.

[00:15:18] Speaker 04:
We just want this wrong righted, Your Honor.

[00:15:21] Speaker 04:
We believe that whatever decision you make here is going to have far-reaching

[00:15:28] Speaker 04:
tentacles across the country, and we would just ask that you consider the fact that the arbitration procedure is strikingly different than the merit system protection work procedures, and that only the union can push an arbitration forward and agreements not a party to it.

[00:15:47] Speaker 04:
And we would just ask that you grant the union associational standing to try to pursue these perceived wrongs when they come up.

[00:15:55] Speaker 01:
Thank you, Mr. Harris.

[00:15:56] Speaker 01:
Mr. Carson.

[00:16:35] Speaker 00:
Thank you, Your Honor.

[00:16:36] Speaker 00:
I please the Court.

[00:16:38] Speaker 00:
The Court should dismiss the Union's petition because the Union does not have standing under 5 U.S.C.

[00:16:43] Speaker 00:
Section 7703A1 because it's neither an employee nor an applicant for employment as the statute requires.

[00:16:50] Speaker 00:
If the Court does consider the merits of the petition, however, the Court should uphold the arbitrator's denial of attorney's fees because the arbitrator's decision was not arbitrary, capricious, an abuse of discretion, or unsupported by substantial evidence.

[00:17:04] Speaker 00:
With respect to standing, as the court's already acknowledged, the Reid decision and some decisions that follow have held that 7703A1 clearly and unambiguously uses the term employee, which does not encompass labor organizations.

[00:17:27] Speaker 02:
But can an employee invoke arbitration in this case?

[00:17:32] Speaker 02:
I'm sorry, did the employees... Can an employee on their own invoke the arbitration?

[00:17:40] Speaker 00:
The employee needs to invoke arbitration through the CBA.

[00:17:46] Speaker 02:
3121 says that only an association can invoke arbitration.

[00:17:54] Speaker 00:
Correct.

[00:17:54] Speaker 00:
So the employee invoked arbitration through the collective bargaining agreement, the grievance process through the CBA.

[00:18:01] Speaker 00:
That's correct.

[00:18:05] Speaker 00:
Notwithstanding that, once an arbitrator has issued his or her decision, 7703A1 controls who can file the petition to this court.

[00:18:17] Speaker 00:
We're not arguing that an arbitrator's decision can't be appealed to this court, obviously.

[00:18:25] Speaker 00:
We're simply saying that the proper party to appeal that decision is the employee, him or herself.

[00:18:32] Speaker 02:
Let me go back to the question, then.

[00:18:34] Speaker 02:
Let me make sure we're clear.

[00:18:37] Speaker 02:
Under 7121, only a union can invoke the arbitration process.

[00:18:41] Speaker 02:
Is that correct?

[00:18:44] Speaker 00:
That's my understanding, yes, Your Honor.

[00:18:48] Speaker 02:
So isn't it absurd that the statute would say that only an employee can seek fees?

[00:18:58] Speaker 00:
I don't think it's an absurdity, Your Honor.

[00:19:01] Speaker 00:
Again, even at the arbitration phase, even though the employee has invoked arbitration and the union then, because it's the collective bargaining agreement, moves forward, the union is still moving forward on behalf of the employee.

[00:19:18] Speaker 00:
The employee, I believe, opposing counsel say that Ms.

[00:19:24] Speaker 00:
Kidwell doesn't have a stake in the process.

[00:19:26] Speaker 00:
Of course she has a stake in the process.

[00:19:28] Speaker 00:
And this whole case originates from her being indefinitely suspended by the agency.

[00:19:35] Speaker 00:
So she has a clear interest and stake in the process.

[00:19:38] Speaker 00:
And the attorney fee award issue is simply derivative.

[00:19:44] Speaker 00:
It's derived from the employment action that the agency took against her.

[00:19:52] Speaker 03:
Does the government think that Ms.

[00:19:53] Speaker 03:
Kidwell herself could have appealed the denial of attorney's fees?

[00:19:57] Speaker 00:
Ms.

[00:19:58] Speaker 00:
Kidwell could have and should have appealed.

[00:20:02] Speaker 02:
But she didn't pay the attorney fees, did she?

[00:20:06] Speaker 02:
No, quite frankly, Your Honor, I don't... That would be a standing issue on its own.

[00:20:12] Speaker 00:
First, Your Honor, I don't think there's any evidence in the record that anybody has paid any attorney's fees in this case so far.

[00:20:19] Speaker 00:
I don't think there's any evidence that the union has paid any attorney's fees.

[00:20:22] Speaker 02:
That's not required under the statute, though.

[00:20:25] Speaker 00:
I understand, Your Honor.

[00:20:27] Speaker 00:
But I think the point being, though, that 7703A1 establishes that it's the employee is, it's unequivocal that the employee is the proper party to file a petition in this court.

[00:20:41] Speaker 00:
And the party and the employee, even if she isn't paying the attorney's fees, is still an interested party to the case.

[00:20:51] Speaker 00:
And in fact, the case that we cite... It would have had to have been brought by Ms.

[00:20:58] Speaker 02:
Tidwell, otherwise there's no attorney's fees available under 7703.

[00:21:04] Speaker 00:
Yes, that's correct.

[00:21:06] Speaker 00:
And this isn't unprecedented.

[00:21:09] Speaker 02:
She's a member of the union.

[00:21:11] Speaker 00:
She's a member of the union.

[00:21:12] Speaker 00:
Why is that not associational standing?

[00:21:14] Speaker 00:
Well, because of the prudential limitations on associational standing.

[00:21:18] Speaker 02:
That's what Reid... Why do we have this statute begin with?

[00:21:22] Speaker 02:
There's no opportunity, no ability to obtain attorney's fees in these instances.

[00:21:28] Speaker 00:
There is, it's Ms.

[00:21:30] Speaker 02:
Kidwell, so the award of attorney's fees... Wouldn't you say that interpreting the statute in that manner just leads us to an absurd result?

[00:21:38] Speaker 00:
I don't think so, Your Honor.

[00:21:39] Speaker 00:
The way that the statutes are to be interpreted and applied are that the award of attorney's fees is made to a plaintiff or the employee, and then whatever arrangement is

[00:21:53] Speaker 00:
is made between the employee or a plaintiff and their attorney in regards to the payment of those fees or how those fees are to be apportioned is between the plaintiff and her lawyer.

[00:22:05] Speaker 01:
Counsel, is it in the record whether the union argued the case, brought the case through its employed in-house lawyers rather than paying attorney fees to outside counsel?

[00:22:22] Speaker 00:
I don't believe Mr. Harris is a staff attorney, Your Honor.

[00:22:26] Speaker 00:
And I don't know if you're alluding to the rainy decision, which we cite in the latest footnote four of our brief, is an example of where an employee and a member of the union filed a petition before this court, part of which was appealing an arbitrator's decision denying a fee award.

[00:22:52] Speaker 00:
Rainey filed that petition in his own name but did not pay any attorney's fees.

[00:22:59] Speaker 00:
In that case, a staff attorney, a union staff attorney represented the employee before the arbitrator and the fees were going to be paid into a fund, a union fund that would then be used to pay attorney's fees generally.

[00:23:17] Speaker 00:
And that's an example of an employee filing petition in their own name in a similar situation.

[00:23:27] Speaker 00:
This is simply following this court's decision in Reed and an executive association interpreting 7703A1 and applying it in clear and unambiguous terms.

[00:23:42] Speaker 00:
Again, we're not arguing that

[00:23:45] Speaker 00:
that Ms.

[00:23:46] Speaker 00:
Kidwell could not have appealed this award, that the denial of an attorney's fee award is not appealable.

[00:23:53] Speaker 00:
We're saying that it is.

[00:23:54] Speaker 00:
It's just they have the wrong petitioner here.

[00:23:57] Speaker 01:
Well, 7703 refers to a decision of the MSPB, not an arbitrator.

[00:24:05] Speaker 01:
And if we're interpreting employee literally, do we

[00:24:14] Speaker 01:
not interpret MSPD literally, not to include an arbitrator?

[00:24:19] Speaker 00:
Well, I believe with respect to that, we have to go back to Section 5 USC, Section 7121, which states that, excuse me, in matters covered under Sections 4303 and 7512 of this title, 7512 being the relevant section,

[00:24:39] Speaker 00:
as it relates to suspensions for more than 14 days, which have been raised under the negotiated grievance procedure in accordance with this section.

[00:24:50] Speaker 00:
Section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the Board.

[00:25:02] Speaker 01:
And you would probably also argue that Reid sort of covered over

[00:25:07] Speaker 01:
any ambiguity on that point because we dealt with an arbitrator's decision.

[00:25:15] Speaker 01:
It is not?

[00:25:20] Speaker 00:
Yes, Your Honor.

[00:25:23] Speaker 00:
If I understand your question, yes, Your Honor.

[00:25:29] Speaker 00:
So, again, I know that Petitioners' Council has argued that

[00:25:36] Speaker 00:
that association standing exists, but to the extent that it does, I'm not sure, I'm not clear that it does, but even if it does, our prudential, when I say association standing exists, there are the three elements that the court has established regarding association standing, but as the Reed Court pointed out, there are still prudential limitations on that association standing, and that's what 7703A1 places

[00:26:05] Speaker 01:
Let me correct part of my question, which misled you.

[00:26:10] Speaker 01:
I was incorrect factually.

[00:26:11] Speaker 01:
Reed came from the MSPB.

[00:26:14] Speaker 03:
Yes, Your Honor.

[00:26:17] Speaker 03:
Tierney came from an arbitration proceeding, right?

[00:26:20] Speaker 00:
Tierney did come from an arbitrator's decision.

[00:26:24] Speaker 00:
Tierney involved an individual lawyer filing.

[00:26:28] Speaker 00:
But again, Reed

[00:26:34] Speaker 00:
I always get the name of the second case.

[00:26:36] Speaker 00:
Senior Executives Association and Tierney all stand for the same exact proposition.

[00:26:41] Speaker 00:
And as you pointed out, they rejected the DC Circuit's analysis in the NTEU decision, which Petitioners' Council relies upon.

[00:26:57] Speaker 00:
But even if this court were to find that petitioner has standing, which we obviously don't think that petitioner does, with respect to the merits, an arbitrator has considerable discretion in determining whether an award of attorney's fees is warranted in the interest of justice.

[00:27:19] Speaker 00:
And here, the arbitrator's decision, the arbitrator correctly decided that

[00:27:25] Speaker 00:
while grievance prevailed on the merits, that the award of attorney's fees was not in the interest of justice.

[00:27:34] Speaker 00:
The record does not show that the agency made its decision negligently or in disregard of any relevant facts.

[00:27:42] Speaker 00:
The arbitrator found that the agency did not commit any procedural or administrative error.

[00:27:47] Speaker 00:
an agency did not commit any prohibited personnel practice.

[00:27:51] Speaker 02:
But almost all the reasons that were cited as to her removal or her suspension by the agency, they were overruled in arbitration.

[00:28:03] Speaker 00:
Well, I don't think that... I think that... There's no question here who the prevailing party was.

[00:28:13] Speaker 00:
That's correct, Your Honor, but I think then

[00:28:15] Speaker 00:
The analysis and conditioner challenges the attorney fees award on I believe three of the five Allen factors.

[00:28:23] Speaker 02:
Didn't the Inspector General find that there's some sort of animus against her?

[00:28:29] Speaker 00:
I don't recall, I believe the arbitrator's merits decision alluded to that because her father was, as an administrative law judge, was disbarred and convicted of himself misusing PII and that she was being investigated for improperly accessing PII.

[00:28:57] Speaker 00:
and potentially distributing or giving it to her father, the arbitrator commented in his decision that that may have colored the analysis that was conducted.

[00:29:14] Speaker 02:
I said the Inspector General meant the arbitrator, found that the administration was consciously biased against her.

[00:29:22] Speaker 02:
Those were the words that they used.

[00:29:24] Speaker 00:
Well, like I just said, Your Honor, I think it was based on those facts that she was improperly accessing and distributing PII and was doing so to her father who was, who had been convicted and disbarred because of his misuse of PII.

[00:29:40] Speaker 02:
But regardless, excuse me, regardless... You keep bringing that up, but she was never charged with a crime.

[00:29:47] Speaker 02:
I'm not talking about the father.

[00:29:48] Speaker 00:
I understand, Your Honor.

[00:29:49] Speaker 02:
She's never charged with a crime.

[00:29:51] Speaker 02:
She was not indicted.

[00:29:52] Speaker 00:
My understanding is that the investigation was concluded and prosecution was not pursued because, I don't believe this is in the record, but my understanding is that prosecution was not pursued because they had a difficult time proving financial harm to the individuals whose PII was improperly accessed and distributed.

[00:30:15] Speaker 02:
So I just was not filed.

[00:30:17] Speaker 02:
I mean, she was not indicted.

[00:30:20] Speaker 02:
She's not found guilty.

[00:30:22] Speaker 02:
I mean, we still believe in your innocence until proven guilty, right?

[00:30:27] Speaker 02:
But it seems to me that your argument in your brief and what we heard by the arbitrator, it almost stands at

[00:30:38] Speaker 02:
very serious principle on its head.

[00:30:40] Speaker 00:
Well, Your Honor, I wouldn't go that far in that.

[00:30:44] Speaker 00:
I think that the case law establishes that a suspension can be appropriate based on an investigation.

[00:30:52] Speaker 00:
There's no bright line in that analysis.

[00:30:56] Speaker 02:
But it turned out the investigation was wrong.

[00:30:58] Speaker 02:
She was reinstated, back paid, the whole bit.

[00:31:02] Speaker 02:
Well, if anything, and not to throw another cliche in here, but it looks like they put the card before the horse.

[00:31:13] Speaker 00:
Well, I think that that's usually the analysis in these cases is based on the investigation and I think that effectively, Your Honor... That's good when later on the investigation proves out to be true, but it's not good.

[00:31:27] Speaker 02:
It's not good to put the car before the horse when the investigation turns out that we're not going to charge or we're not going to pursue the investigation.

[00:31:34] Speaker 00:
Well, to that very point, Your Honor, that's effectively, though, what I think the arbitrator concluded, but in the sense that

[00:31:41] Speaker 00:
you know, that the agency in this case acted based on an interim investigation report rather than a final report.

[00:31:51] Speaker 00:
And that the arbitrator concluded that in his marriage decision that they essentially

[00:31:58] Speaker 00:
They didn't act based on the kind of the practice, their practice up to that point, which was waiting until a final decision.

[00:32:07] Speaker 02:
However... You don't call that putting a cart before the horse?

[00:32:10] Speaker 00:
Well, you're... But it's a... But here's... I think here's an important point, Your Honor, and that is...

[00:32:16] Speaker 00:
the analysis has to take into account the alleged conduct and the mission of the agency.

[00:32:23] Speaker 00:
And here we're dealing with the Social Security Administration, and we have an employee that's not just alleged, but based on an interim report by the OIG, which the OIG does not normally issue interim reports and provide interim briefings, but because of the seriousness of the alleged conduct and the agency involved,

[00:32:42] Speaker 00:
and the access, inappropriate accessing of and distributing PII at the Social Security Administration, that there was, you know, there was concern, appropriately so.

[00:32:55] Speaker 01:
And the arbitrator found there was sufficient evidence to conclude the grievance likely violated the agency's policies.

[00:33:04] Speaker 00:
Well, in the sense, Your Honor, of

[00:33:06] Speaker 00:
And I think, again, this was the arbitrator's decision.

[00:33:14] Speaker 00:
He said that essentially the SSA's disciplinary decision was premature, meaning that they should have waited until the end of the investigation, that doing so on an interim report of an investigation, it deviated from their normal practices and procedures.

[00:33:33] Speaker 01:
Thank you, counsel.

[00:33:34] Speaker 01:
Your time has expired.

[00:33:36] Speaker 01:
We will take the case under submission.