[00:00:00] Speaker 04:
The first case for argument this morning is 21-1488, American Federation of Government Employees versus the Air Force.

[00:00:08] Speaker 04:
Mr. Manley, whenever you're ready.

[00:00:11] Speaker 02:
Good morning, Your Honors.

[00:00:14] Speaker 02:
May I take the mask off?

[00:00:15] Speaker 02:
Yes, please do.

[00:00:17] Speaker 02:
May it please the Court.

[00:00:20] Speaker 02:
My name is Glenn Mangum.

[00:00:21] Speaker 02:
I'm from San Antonio, Texas, and I'm representing Michael Johnson, who is the move-in in this case.

[00:00:27] Speaker 02:
Mr. Johnson has moved to be substituted as the petitioner for the AFG Locals 1367, who originally filed the petition for review in this case.

[00:00:38] Speaker 02:
I'm here today to persuade you that not only is the substitution of Mr. Johnson appropriate, but also that the petition for review has merit.

[00:00:49] Speaker 02:
That is that the decision that was made by the Air Force to remove Mr. Johnson

[00:00:55] Speaker 02:
was not supported by substantial evidence, did not comply with the requirements of the law.

[00:01:01] Speaker 02:
And the arbitrator's decision affirming that decision to remove Mr. Johnson was likewise fatally flawed.

[00:01:10] Speaker 04:
So let's start with your first point.

[00:01:14] Speaker 04:
Maybe it's a coincidence or maybe not, but it seems like very recently we've had a lot of activity here on the substitution question and on the statutory provision, which leads us to starting at Reed.

[00:01:27] Speaker 04:
I mean, it has long been this court's view, has it not?

[00:01:31] Speaker 04:
that the way the statute is written, if you're appealing an arbitrator's award, you're sort of doing it under the MSPB rules, which means it needs to be the employee that is the moving party on appeal here.

[00:01:46] Speaker 04:
That's been our longstanding law.

[00:01:48] Speaker 04:
We've had it recently in non-PREC opinions.

[00:01:51] Speaker 04:
We started in 86 with the Reed case.

[00:01:54] Speaker 04:
How do you, whether that's the right or the wrong answer, it's the answer under the statute and it's the answer under our case law.

[00:02:02] Speaker 04:
How do you avoid that here?

[00:02:05] Speaker 02:
Judge, I agree with you.

[00:02:06] Speaker 02:
I think that only the agreed employee has standing to file a petition for review from either a board decision or an arbitrator decision.

[00:02:15] Speaker 02:
In this case, what we're asking to do is to be substituted as the real party in interest.

[00:02:20] Speaker 02:
That is, even though the union, as the union itself, did not have standing to file the petition for review,

[00:02:28] Speaker 02:
It was acting on behalf of Mr. Johnson as it had acted since he initiated the grievance challenging his removal so that we think that that that Mr. Johnson should be allowed to substitute because

[00:02:42] Speaker 02:
He is the real party in interest.

[00:02:44] Speaker 02:
If we deny him.

[00:02:45] Speaker 01:
How do you get around the federal rule 43B?

[00:02:49] Speaker 01:
That's your problem right there.

[00:02:51] Speaker 02:
Judge, I don't think that rule 43B really tells us the answer to the question that is before the court.

[00:02:58] Speaker 02:
It doesn't provide much guidance to the court in this particular factual situation.

[00:03:03] Speaker 01:
If you require that for there to be substitution, that the original party was a proper party to the suit.

[00:03:09] Speaker 02:
I don't think that's a requirement of the law, Judge.

[00:03:11] Speaker 04:
Well, it doesn't say that explicitly.

[00:03:14] Speaker 04:
I think one could argue very forcefully that implicitly it does say that.

[00:03:19] Speaker 04:
But other circuits who have looked at it have persuasively argued that that's the way it should be applied.

[00:03:26] Speaker 04:
So what you would ask us to do is read this rule in a different way, in a way different than our sister circuits have construed it, which is precisely the way Judge Raina said it's been construed.

[00:03:39] Speaker 02:
Well, I agree with what you're saying, Judge.

[00:03:41] Speaker 02:
But I think the cases that you're referring to confront a different factual situation than we have before us today.

[00:03:50] Speaker 02:
The Mulaney versus Anderson case, I believe, is dispositive of the motion to substitute Mr. Johnson as petitioner in this case.

[00:03:58] Speaker 02:
Because in that case, the case was before the Supreme Court of the United States.

[00:04:03] Speaker 02:
And a motion for substitution was made at that stage of the process

[00:04:07] Speaker 02:
to allow the petitioner to name?

[00:04:09] Speaker 04:
Well, I guess I take your point.

[00:04:12] Speaker 04:
And I read Mulaney.

[00:04:13] Speaker 04:
And you're right.

[00:04:14] Speaker 04:
It's the best thing you have going for you.

[00:04:15] Speaker 04:
The problem I have there, a number of problems.

[00:04:19] Speaker 04:
One, Mulaney isn't Rule 43.

[00:04:22] Speaker 04:
It's Rule 21 of the Rules of Civil Procedure.

[00:04:24] Speaker 02:
You understand that, Judge?

[00:04:26] Speaker 04:
So you've never argued Rule 21 of the Rules of Civil Procedure.

[00:04:30] Speaker 04:
And Mulaney is cited in gray, but I don't believe he's cited in blue.

[00:04:34] Speaker 04:
So it may, in fact, present a new and different argument, not resting on Rule 43, but resting on Rule 21 and the Joinder provisions, that may or may not have any heft.

[00:04:49] Speaker 04:
But how can you argue you've necessarily preserved that?

[00:04:52] Speaker 04:
Rule 21 is a different rule, and it's Joinder.

[00:04:54] Speaker 04:
And it may and may not work here, because here you're not talking about Joinder.

[00:04:58] Speaker 04:
You're talking about really substitution of the party.

[00:05:01] Speaker 02:
That's correct, Judge.

[00:05:01] Speaker 04:
But we haven't had briefing or fulsome briefing.

[00:05:04] Speaker 04:
I mean, you've got the case and nothing more is cited in gray.

[00:05:08] Speaker 04:
So I don't know what to do with that.

[00:05:10] Speaker 04:
But in our normal rules, we'd say that's an argument that hasn't been made in a fulsome way and hasn't been properly preserved.

[00:05:18] Speaker 04:
So what's your response to that?

[00:05:19] Speaker 02:
Well, Judge, I think we have properly preserved it by arguing that the Mulaney case, which was cited by with approval by this court in both the Unilock case and the Mojave Desert case with approval that it stands for the proposition that

[00:05:36] Speaker 02:
If there's a technical error in the initiation of the petition for review, that this court should allow substitution of the real party in interest so that the court has.

[00:05:46] Speaker 01:
And here, I think we have that.

[00:05:48] Speaker 01:
I think we have exactly what you're talking about.

[00:05:51] Speaker 01:
There's a reason why substitution should be permitted.

[00:05:55] Speaker 01:
Otherwise, in my view, there's an injustice here.

[00:05:58] Speaker 02:
That's exactly my point too, Judge.

[00:06:00] Speaker 01:
Yes.

[00:06:00] Speaker 01:
However, you have another rule that you're faced up with.

[00:06:06] Speaker 01:
that really creates injustice.

[00:06:08] Speaker 01:
And this goes back to 43B.

[00:06:11] Speaker 01:
The original party in this suit did not have jurisdiction.

[00:06:15] Speaker 01:
And the way I read 43B, that means that you don't either.

[00:06:20] Speaker 01:
That's the injustice.

[00:06:23] Speaker 01:
Now, how do we get out of that?

[00:06:25] Speaker 02:
Well, Judge, we're not arguing that Mr. Johnson should be substituted because he is a successor in interest to the union or he has somehow received a transfer of their interest in the matter to him.

[00:06:38] Speaker 02:
We're arguing that had the union not made the error of filing the petition in its own name rather than in the name of the grievant, Michael Johnson, that we wouldn't even be talking about this question.

[00:06:51] Speaker 01:
Give me some authority to back up what you just said.

[00:06:54] Speaker 02:
Well, I think the Mulaney versus Anderson case, as it was cited, didn't.

[00:06:58] Speaker 04:
There was no error.

[00:06:59] Speaker 04:
I mean, there was no real error there.

[00:07:00] Speaker 04:
I mean, it was a different kind of a case.

[00:07:02] Speaker 04:
And one of the things the Supreme Court rested on in that case, I think I recall right correctly, is that we're already here at the end of the road at the Supreme Court.

[00:07:11] Speaker 04:
I think it was a real question whether or not they even needed to bring in these employees.

[00:07:16] Speaker 04:
And I mean, why isn't the answer to Judge Raina's question that the statute is a statute?

[00:07:25] Speaker 04:
We might have written it differently, but the statute is quite clear.

[00:07:29] Speaker 04:
It's been around for a long time.

[00:07:31] Speaker 04:
Our cases have been quite clear that the employee should have come in at the beginning on the notice of appeal.

[00:07:38] Speaker 04:
So whether, as you say, the union

[00:07:40] Speaker 04:
I don't know what term you used.

[00:07:42] Speaker 04:
I would have screwed up or whatever or dropped the ball.

[00:07:46] Speaker 04:
That's something we deal with all the time.

[00:07:49] Speaker 04:
And that's the kind of maybe injustice when a lawyer doesn't do what they should have done or so forth.

[00:07:55] Speaker 04:
But that doesn't mean that we change the rules.

[00:08:00] Speaker 02:
I'm not suggesting that the statute should be changed or the interpretation of the statute should be changed.

[00:08:06] Speaker 02:
I'm just saying that as the aggrieved employee, Mr. Johnson should be allowed to substitute so that he has the opportunity to challenge the propriety of his removal.

[00:08:17] Speaker 04:
Well, let's move on, if my colleagues are OK with that, to the merits, because even if we may or may not be able to reach them.

[00:08:24] Speaker 04:
But frankly, if you get to the merits of this case, I really have my doubts.

[00:08:30] Speaker 04:
how the arguments you make can prevail.

[00:08:34] Speaker 04:
And here's my problem.

[00:08:35] Speaker 04:
You seem to make a lot of process arguments on due process, which are very unusual.

[00:08:40] Speaker 04:
You make an argument that I'm not sure I've ever seen before, which is they applied too lenient a standard rather than too tough a standard.

[00:08:50] Speaker 04:
So I don't know where that gets you, even if you're right and I don't think you're right, having applied ponderance versus substantial evidence.

[00:08:56] Speaker 02:
I would concede that, Judge.

[00:08:58] Speaker 04:
Okay.

[00:08:59] Speaker 04:
So then you're left predominantly with kind of due process arguments about the deficiency of the notice.

[00:09:06] Speaker 04:
And I mean, you do the proposed removal.

[00:09:10] Speaker 04:
I don't see how it's quite clear to me, and I think it was clear to your client, what the problem was here and what he did.

[00:09:18] Speaker 04:
Now, he may have disputed that, but I don't see how you have a due process or a process argument

[00:09:24] Speaker 04:
in terms of the specificity of the notice.

[00:09:27] Speaker 04:
I understand why strategically you may pick that argument, because otherwise you've got substantial evidence review of the facts.

[00:09:33] Speaker 04:
And that's really impossible, almost impossible to overcome.

[00:09:37] Speaker 04:
But did he not know?

[00:09:39] Speaker 04:
He was the supervisor.

[00:09:42] Speaker 04:
The rule is clear that there has to be some degree of separation.

[00:09:47] Speaker 04:
And there are real consequences to what gets done in this context as opposed to a lot of the other cases we have.

[00:09:54] Speaker 04:
Where's the due process violation in terms of the specificity of the notice?

[00:09:59] Speaker 04:
Isn't that what your argument is?

[00:10:00] Speaker 04:
Am I correctly stating your argument?

[00:10:02] Speaker 02:
Well, Judge, you are.

[00:10:03] Speaker 02:
But let me expound on it a little bit.

[00:10:08] Speaker 02:
Throughout its brief, the Air Force argues that the arbitrary made certain findings that would satisfy the agency's burden approved to support the removal decision.

[00:10:20] Speaker 02:
That is, that the charged conduct occurred, that there was a nexus between the charged conduct and the efficiency of the service, and that the penalty of removal was appropriate.

[00:10:30] Speaker 02:
The problem with that statement is that it's not true.

[00:10:35] Speaker 02:
The arbitrator made no explicit findings on any of those subjects.

[00:10:41] Speaker 02:
The only reference to the efficiency of the service that was made by the agency was in the amended notice of proposed removal.

[00:10:52] Speaker 02:
The arbitrator himself made only certain findings that were not consistent with the requirements of the burden of proof that the agency had, that is,

[00:11:04] Speaker 02:
He said, the grievant received due process as was treated fairly during the disciplinary process.

[00:11:10] Speaker 02:
Well, that just means that the grievant, Mr. Johnson, was given the right to reply in writing and orally, and that that reply was considered before a decision was made.

[00:11:20] Speaker 03:
Can I ask you?

[00:11:23] Speaker 03:
The Air Force also argues that you forfeited your due process arguments.

[00:11:27] Speaker 03:
Can you show us where they were raised?

[00:11:30] Speaker 02:
In terms of whether they were raised before the arbitrator, is that what you're asking, Judge?

[00:11:35] Speaker 02:
I don't believe they were.

[00:11:38] Speaker 03:
And so why are they not forfeited?

[00:11:41] Speaker 02:
Because I'm here today.

[00:11:43] Speaker 02:
I don't know the answer to that question, Judge, other than I'm arguing again and have been arguing in my briefs that

[00:11:50] Speaker 02:
The sins of the union should not be visited upon my client, Mr. Johnson.

[00:11:55] Speaker 02:
I really think that this court has the ability to give him the chance to prove that his removal was not appropriate.

[00:12:04] Speaker 03:
And I heard you say that before too.

[00:12:06] Speaker 03:
Is there something in the record we can point to that says it was an error, it was a sin of the union, or is that just something you're telling us now?

[00:12:14] Speaker 02:
Well, I think it's obvious from the fact that we're arguing about whether or not Mr. Johnson should be allowed to be substituted.

[00:12:21] Speaker 03:
Right.

[00:12:21] Speaker 03:
I mean, I was really wondering why is Mr. Johnson not the original appellant.

[00:12:25] Speaker 03:
And you're telling me today it was an error.

[00:12:28] Speaker 03:
But do you have something in the record that indicates that?

[00:12:30] Speaker 02:
Because he relied on the union to do what was appropriate for him.

[00:12:33] Speaker 02:
Judge, that's the only answer to the question that I have.

[00:12:37] Speaker 02:
And that is, he had been relying on the union to advocate for him in terms of grieving the decision to remove him.

[00:12:44] Speaker 02:
and relied again on the union in doing the right thing in terms of initiating this petition for review.

[00:12:52] Speaker 04:
Just moving back, though, to the merits and the deficiency.

[00:12:54] Speaker 04:
I mean, even if preserved, I'm not understanding or appreciating your due process and the deficiency of the notice of proposed removal.

[00:13:03] Speaker 04:
This wasn't a complicated set of events.

[00:13:05] Speaker 04:
We all know the basis.

[00:13:07] Speaker 04:
We understand and appreciate the incident.

[00:13:10] Speaker 04:
There's one incident, and it's what led to his removal.

[00:13:13] Speaker 04:
And we all understood easily, I think everyone understands, you may disagree whether what he did or did not do rose to a sufficient basis for removing him.

[00:13:25] Speaker 04:
But we all know what happened.

[00:13:28] Speaker 04:
And are you arguing that he didn't know, even though he was a supervisor, that he should have been supervising?

[00:13:35] Speaker 04:
I guess you seem to be saying the notice was deficient because it didn't

[00:13:43] Speaker 02:
It was not in sufficient detail as required by the Air Force regulation.

[00:13:46] Speaker 04:
What was it missing?

[00:13:48] Speaker 04:
What was the notice missing so he didn't know what he was being charged with?

[00:13:51] Speaker 02:
The charge was careless performance of assigned duties.

[00:13:54] Speaker 02:
The only reference to assigned duties was the fact that he was the watch supervisor.

[00:13:59] Speaker 04:
Right, and he's a watch supervisor and these planes got too close and that was a violation of the rules and he was supervising the two trainees who were in charge of doing that.

[00:14:10] Speaker 04:
I mean, there may be, the notice doesn't have to be beginning to end, chapter and verse.

[00:14:15] Speaker 04:
That's why you have a trial and everything else.

[00:14:18] Speaker 02:
Well, how was he to defend himself, Judge, if he didn't know exactly what it was that the Air Force was charging him with doing?

[00:14:24] Speaker 04:
He didn't know.

[00:14:26] Speaker 04:
know that the problem he was charged with was that he didn't appropriately supervise these people so that it allowed them to get too close?

[00:14:34] Speaker 04:
He didn't know that?

[00:14:36] Speaker 02:
He knew what the allegation was, Judge.

[00:14:39] Speaker 02:
He didn't know what a duty was assigned to him that he failed to perform.

[00:14:45] Speaker 02:
Where does it say that he has to ensure that not a trainee, but another controller who was supervising the trainee who authorized the trainee to release the aircraft?

[00:14:57] Speaker 01:
Well, Counselor, this wasn't the first time he was charged with this.

[00:15:02] Speaker 01:
I mean, there was prior instances where he was charged with a similar type of negligence.

[00:15:09] Speaker 02:
That's true, Judge.

[00:15:10] Speaker 01:
He seems to have experience in this area.

[00:15:12] Speaker 01:
So why wouldn't he have known?

[00:15:15] Speaker 01:
you know, the last time around that what he was being charged with and what the problem was.

[00:15:22] Speaker 01:
This is a smart person we're talking about.

[00:15:24] Speaker 01:
I mean, he's a supervisor in the air traffic control tower.

[00:15:29] Speaker 02:
He was the watch supervisor on that day, Judge.

[00:15:32] Speaker 02:
Yes.

[00:15:33] Speaker 02:
I don't dispute what you're saying, Judge.

[00:15:35] Speaker 02:
I'm just saying that the requirement of specificity that is required by Air Force regulation and by the system principles

[00:15:44] Speaker 02:
requires that the agency specify what it is exactly that he did or didn't do that caused this incident to occur.

[00:15:53] Speaker 02:
And they didn't do that.

[00:15:54] Speaker 02:
The arbitrator found that he violated certain regulations that weren't even alleged in the notice of proposed removal or the amended notice of proposed removal.

[00:16:03] Speaker 02:
How can we sustain an arbitrator's decision when he makes up violations of regulation that weren't even alleged in the notice of proposed removal?

[00:16:13] Speaker 02:
I don't understand that.

[00:16:16] Speaker 04:
OK, we're well into our, we've used your rebuttal time, which we will restore.

[00:16:21] Speaker 04:
Why don't we turn to the government?

[00:16:23] Speaker 00:
Thank you, Your Honor.

[00:16:24] Speaker 04:
Good morning.

[00:16:25] Speaker 04:
Is it Mr. Hough?

[00:16:27] Speaker 00:
Hough, Your Honor.

[00:16:27] Speaker 00:
Good morning.

[00:16:28] Speaker 04:
OK, good morning.

[00:16:30] Speaker 00:
May it please the court, Stephen Hough, for the respondent of the United States Department of the Air Force.

[00:16:35] Speaker 00:
This appeal should be dismissed because the union lacks standing to bring it.

[00:16:39] Speaker 00:
Mr. Johnson did not file a timely petition for review, and he may not be substituted for the union as a petitioner in this matter.

[00:16:46] Speaker 01:
Let's take a look at this Rule 43B.

[00:16:50] Speaker 01:
I have a problem when the application of a particular rule that's effectively a technicality

[00:17:00] Speaker 01:
creates such an injustice.

[00:17:03] Speaker 01:
And the injustice here is that we have an individual who's been kicked out of the courtroom.

[00:17:11] Speaker 01:
The courtroom doors were slammed shut in his face because the union could no longer represent him.

[00:17:19] Speaker 01:
And the union had the rug pulled out from under their feet, defunded, destructured, dissolved,

[00:17:30] Speaker 01:
And the only person left to carry this forward is his client.

[00:17:35] Speaker 01:
And yet, 43B says that's not possible.

[00:17:39] Speaker 01:
Is 43B really intended to apply in a situation such as this that results in what would be a manifest injustice?

[00:17:50] Speaker 00:
Your Honor, it is intended to apply in this situation.

[00:17:52] Speaker 00:
And I think the answer is what Your Honor said in your recent concurring opinion in the AFG local 3438 versus Social Security case.

[00:18:00] Speaker 00:
Your Honor closed, these anomalies are the necessary result of a statutory scheme created by Congress and must be corrected, if at all, by Congress.

[00:18:09] Speaker 01:
We're dealing with the same anomaly here, but under a different factual situation.

[00:18:18] Speaker 01:
Here, the union just no longer existed.

[00:18:24] Speaker 01:
It was totally unable to represent, not because of an attorney got sick or circumstances like that.

[00:18:33] Speaker 01:
I mean, the union just ceased to exist.

[00:18:38] Speaker 01:
So this is a different factual situation than what the one you're citing with respect to my concurrence or my additional views that I wrote.

[00:18:46] Speaker 00:
Your Honor, it's not my understanding that the local union ceased to exist and that's certainly not in the record.

[00:18:50] Speaker 00:
My understanding is that in response to our motion to dismiss, the local union under prior counsel responded that the national union had told that it could take no further action.

[00:19:00] Speaker 00:
That's no different than if a parent corporation tells its subsidiary to stop acting.

[00:19:04] Speaker 00:
Or indeed, if the director or a CEO of a corporation tells its company it's pulling the funding, it can't move forward.

[00:19:10] Speaker 00:
But in any event, Your Honor, it's a conjunctive test.

[00:19:13] Speaker 00:
Substitution is only permitted both if the original party is incapable of continuing and the original party is proper.

[00:19:21] Speaker 00:
Neither of those problems is met here.

[00:19:23] Speaker 04:
Sorry.

[00:19:23] Speaker 03:
Go ahead.

[00:19:24] Speaker 04:
In other words, you're saying the situation posited doesn't matter because the reason he's got a problem here is not because the union was forced to drop out for financial situations.

[00:19:38] Speaker 04:
If the union had stayed in, he'd have the same problem, which is the union can't be representing it him.

[00:19:44] Speaker 04:
He has to appeal it himself.

[00:19:45] Speaker 04:
That's correct, Your Honor.

[00:19:48] Speaker 04:
Let me ask you.

[00:19:49] Speaker 04:
Confused and I was confused.

[00:19:51] Speaker 04:
I had a case a couple months ago that involved the same issue The government doesn't seem to be arguing

[00:19:58] Speaker 04:
the case that we've been talking about for 35 years, which is Reed, and how the statute says it has to be the employee.

[00:20:06] Speaker 04:
You're making this hunt argument, which seems different.

[00:20:10] Speaker 04:
And even though you gave us a 28-J letter citing AFGE in the recent cases, you're making a different argument.

[00:20:20] Speaker 04:
You're not making, I don't think, the Reed argument that was made in Judge Reyna's case in AFGE, right?

[00:20:27] Speaker 00:
You're less familiar with those two cases, admittedly.

[00:20:29] Speaker 00:
However, we did cite read throughout our brief, throughout our motion to dismiss, and the ultimate conclusion of those cases.

[00:20:35] Speaker 04:
Well, who's familiar with those cases?

[00:20:36] Speaker 04:
You wrote a 28-J letter about those cases.

[00:20:39] Speaker 00:
To that extent, certainly, Your Honor.

[00:20:41] Speaker 04:
Well, so you must have read them.

[00:20:42] Speaker 00:
Yes, Your Honor, the decisions.

[00:20:43] Speaker 04:
And they very much stand for, do they not, the fact that it's not a hunt problem here.

[00:20:52] Speaker 04:
It's the statute says you follow what the procedures are for the MSPB.

[00:20:57] Speaker 04:
It has to be the employee that appeals this, even if it's an arbitration award.

[00:21:01] Speaker 04:
That's what we did in Reed.

[00:21:03] Speaker 04:
That's what we said in FOP.

[00:21:04] Speaker 04:
That's what we said in the AFGE case.

[00:21:11] Speaker 04:
Are you not getting what I'm saying?

[00:21:13] Speaker 00:
I think I understand the distinction, Your Honor.

[00:21:15] Speaker 00:
As I recall, one of AFG Local 3438 and one of the Fraternal Order of Police cases, one relied more on the statutory scheme I think Your Honor is referring to, and the other relied upon more of the constitutional scheme.

[00:21:27] Speaker 00:
But both ultimately held there was no standing for the union.

[00:21:31] Speaker 00:
Does that answer the court's question?

[00:21:33] Speaker 04:
Well, not exactly.

[00:21:35] Speaker 04:
Can I just ask you, you may not have the answer to this question, but this goes to Judge Raina's question, which I understand and have sympathy for about closing the doors of justice to people.

[00:21:49] Speaker 04:
But I think here, your answer is that the law has been good for 35 years.

[00:21:57] Speaker 04:
Maybe this is anecdotal, but I didn't recall ever being on a case in the 20 years I've been on the court until a few months ago that raised this problem of the union still being the party that filed the notice of appeal and an arbitration award.

[00:22:12] Speaker 04:
And so we did a little.

[00:22:14] Speaker 04:
In most of these cases, people read the statute and got it right, right?

[00:22:19] Speaker 04:
I mean, in the vast majority of cases that involve appeals of an arbitration award, the employee moves in as the appropriate party, and it's not an issue, right?

[00:22:31] Speaker 04:
We haven't had very many cases that pose this problem.

[00:22:35] Speaker 00:
I assume that's correct, Your Honor.

[00:22:37] Speaker 00:
I don't have statistics to cite for you.

[00:22:38] Speaker 00:
Certainly, if there were many more of them at our disposal, I think we would have cited them in the motion to dismiss.

[00:22:44] Speaker 04:
And we've got a fair number of cases where the employee in the union have opted to go the arbitration versus the MSPB route.

[00:22:51] Speaker 04:
So one would assume if this issue wasn't presented, the parties read the statute in our case law and figured it out.

[00:22:59] Speaker 04:
And the employee was the party that filed the notice of appeal.

[00:23:03] Speaker 00:
I would assume that as well, Your Honor.

[00:23:04] Speaker 00:
And of course, the court would have a Susponte obligation to determine standing issues as well, even if the party didn't raise the issue.

[00:23:10] Speaker 01:
Should we look at this issue differently than our sister circuits by virtue of the fact that there is this option to follow the MSPB route, and we have sole jurisdiction over that option?

[00:23:28] Speaker 01:
And so does that require a special interpretation by this court on the applicability of 43B?

[00:23:36] Speaker 00:
It is not, Your Honor.

[00:23:37] Speaker 00:
I think, in fact, it counsels the other direction.

[00:23:39] Speaker 00:
Mr. Johnson could have gone through the MSPB procedure in the first place rather than the union procedure.

[00:23:44] Speaker 00:
He elected to grieve with the union.

[00:23:47] Speaker 00:
Had he gone the MSPB route, there'd be no problem.

[00:23:48] Speaker 00:
He would be properly before the court today.

[00:23:51] Speaker 04:
We don't penalize people because they chose arbitration versus the MSPB, right?

[00:23:57] Speaker 00:
It's not a matter of penalty.

[00:23:58] Speaker 00:
It's a matter of jurisdiction and standing.

[00:24:01] Speaker 01:
And incidentally, if I recall correctly, the National Union

[00:24:06] Speaker 01:
placed the local union, the one we're talking about, in receivership and issued a command to it that it withdrew all authorization for it to continue representation in this case.

[00:24:19] Speaker 00:
I believe there was a substance of the response to a motion to dismiss that they were not allowed to respond to the motion or engage in any further litigation or advocacy or to that effect.

[00:24:28] Speaker 01:
They were in receivership.

[00:24:31] Speaker 01:
They got an order from the national organization that withdrew authorization for it to continue.

[00:24:37] Speaker 01:
Just take those facts into consideration.

[00:24:41] Speaker 03:
To follow up, doesn't that mean that they were incapable of continuing to litigate?

[00:24:47] Speaker 00:
I would disagree with that, Your Honor.

[00:24:48] Speaker 00:
Incapability, and I note, too, we're talking Rule 43B, of course.

[00:24:51] Speaker 00:
43A refers to the death of the party.

[00:24:54] Speaker 00:
I think there's some parallelism to be seen there.

[00:24:56] Speaker 00:
The examples of incapability are much stronger than that, Your Honor.

[00:25:01] Speaker 00:
Incapability, this Court has found before.

[00:25:04] Speaker 00:
has occurred where a party is becoming competent, when a transfer of interest has occurred, or the focus of litigation has shifted.

[00:25:10] Speaker 00:
That's the Mojave Desert case, a holdings case relying upon more federal practice.

[00:25:15] Speaker 00:
None of those situations are indicated here.

[00:25:17] Speaker 00:
As I suggested to the panel earlier, this is much more similar to the situation where our parent corporation tells the subsidiary it can't keep going.

[00:25:25] Speaker 03:
The owner of a company tells the company it can't.

[00:25:27] Speaker 03:
Let me ask you about it.

[00:25:28] Speaker 03:
the other requirement that you would have us read into 43B.

[00:25:33] Speaker 03:
We have never before said, have we, that the rule is limited to where the original appellant was a proper party?

[00:25:41] Speaker 03:
Have we ever said that?

[00:25:42] Speaker 03:
I think you cite a 9th and 11th Circuit case that says that, but I don't know that you cite a Federal Circuit case where we've ever said that.

[00:25:51] Speaker 00:
I believe you're correct in that, Your Honor.

[00:25:53] Speaker 00:
We cited Sable from the Ninth Circuit and Silverman from the Eleventh.

[00:25:55] Speaker 03:
And so the requirement's not in the literal language of the rule, is it?

[00:26:01] Speaker 00:
No, I don't believe so.

[00:26:02] Speaker 03:
So why should we read it into it?

[00:26:06] Speaker 00:
Your Honor, otherwise would allow situations like this were very late in the day after the statutory jurisdictional time for the judicial review to be filed has elapsed, after the time to move to intervene has passed for a party to come in late.

[00:26:18] Speaker 00:
In fact, this case was resurrected after being dismissed because the wrong party had brought it.

[00:26:25] Speaker 00:
There's no reason to diverge from the other circuits in the well-established law there.

[00:26:30] Speaker 04:
We asked your friend about a case cited in Gray, Mulvaney.

[00:26:35] Speaker 04:
And I think he's right that that seems more helpful than a lot of the other things he cited in the group.

[00:26:40] Speaker 04:
Do you have a view about Mulvaney, which rested not, as I recall, on Rule 43B, but on Rule 21?

[00:26:48] Speaker 04:
Do you have a view on the applicability of that?

[00:26:51] Speaker 00:
I do, Your Honor, and I agree at that distinction.

[00:26:53] Speaker 00:
First, as the Court noted, those arguments were waived because they were not presented in the opening brief.

[00:26:59] Speaker 00:
Malaney was not cited.

[00:27:00] Speaker 00:
Federal rule of self-procedure 21 was not cited.

[00:27:04] Speaker 00:
On the merits, there are also several problems and distinctions with Malaney.

[00:27:07] Speaker 00:
First, as the court observed, that concerns not substitution under Rule 43B, but rather Federal Rules of the Procedure 21, which concerns dropping misjoined parties and adding non-joined parties.

[00:27:21] Speaker 00:
Indeed, as Redden Miller has stated, several courts have held that Rule 21 contemplates the retention of one or more parties in the action.

[00:27:28] Speaker 00:
And it's not a method of substituting the sole plaintiff or the sole defendant in the action, which would result here.

[00:27:35] Speaker 00:
In addition, in the Melania case, the union there was the, quote, avowed agent of its members.

[00:27:40] Speaker 00:
That was not the case here.

[00:27:42] Speaker 00:
As the court previously noted at ECF number 13, the union filed the appeal to this court on its own behalf.

[00:27:48] Speaker 00:
And in fact, the union's certificate of interest at ECF number 5 confirmed as the only entity then represented by Petitioner's Council.

[00:27:56] Speaker 00:
Moreover, in Mulaney, the original plaintiffs redeemed the proper parties below, and the union standing was not questioned for the first time until the Supreme Court.

[00:28:04] Speaker 00:
That's simply not the case here.

[00:28:06] Speaker 00:
The Air Force identified this issue in its docketing statement at ECF number 8, and we promptly moved to dismiss for lack of standing at ECF number 10.

[00:28:14] Speaker 00:
Finally, both this court and the Supreme Court have held that the authority to join or dismiss a party on appeal under Federal Civil Procedure 21 should be exercised sparingly.

[00:28:25] Speaker 00:
That's the Newman-Green versus Alfonso Lorraine case, Supreme Court 1989, and this court's case in Primatech II versus Aru from 2000.

[00:28:34] Speaker 00:
In Primatech, the appellant had specifically challenged a standing in the district court, so the facts of this case didn't warrant the exercise of that power.

[00:28:42] Speaker 04:
OK, let me move you on before your time runs out to sort of part two, which we may never get to.

[00:28:48] Speaker 04:
But on the merits of the case, you heard your friends do process arguments and about the deficiency of the notice of appeal, that it didn't give enough notice, I guess, as to what his client's responsibilities were or should have been in that context, and that the agency should have cited that.

[00:29:08] Speaker 04:
in the proposed notice of removal to put him on notice about what he should challenge.

[00:29:15] Speaker 00:
Yes, Your Honor.

[00:29:16] Speaker 00:
We would argue the notice was more than sufficient under the standard both for the notice and also under the differential sufficiency of the evidence standard review.

[00:29:24] Speaker 00:
However, I also note that the affirmative defenses that the court observed have been waived.

[00:29:30] Speaker 00:
As my colleague admitted, they were not presented to the arbitrator.

[00:29:33] Speaker 00:
They're not properly before this court.

[00:29:35] Speaker 04:
And in addition, due process does not require perfect process, and Mr. Johnson has the burden to prove on those affirmative defenses.

[00:29:50] Speaker 04:
which the agency was removing him?

[00:29:53] Speaker 00:
No, Your Honor.

[00:29:53] Speaker 00:
There are three separate incidents in a span of eight months.

[00:29:56] Speaker 00:
For Mr. Johnson, an experienced air traffic controller allowed planes while he was supervising the watchtower to get too close to each other.

[00:30:03] Speaker 00:
It could have caused an accident.

[00:30:05] Speaker 00:
It could have caused loss.

[00:30:05] Speaker 04:
Was there ambiguity as to whether, as a supervisor in the tower at the time of this last incident, he had some responsibility to do something?

[00:30:14] Speaker 00:
No, Your Honor.

[00:30:18] Speaker 04:
OK.

[00:30:18] Speaker 00:
Thank you.

[00:30:19] Speaker 00:
For these reasons, we respectfully request that the court dismiss the petition, or on the alternative, affirm the judgment of the arbitrator.

[00:30:26] Speaker 04:
Thank you.

[00:30:27] Speaker 04:
OK, Mr. Madden, you used your rebuttal, but we'll restore two minutes if you need it.

[00:30:33] Speaker 04:
Two minutes.

[00:30:35] Speaker 02:
Judge, I'll start with what Mr. Huff just said.

[00:30:39] Speaker 02:
It is incumbent upon the Air Force, if they're going to remove an employee,

[00:30:45] Speaker 02:
to state with specificity to provide exactly what delinquency he committed that justifies them removing him.

[00:30:54] Speaker 02:
In this case, they failed.

[00:30:56] Speaker 02:
They said you allowed such and such to happen.

[00:31:00] Speaker 02:
Well, how did he allow that to happen?

[00:31:02] Speaker 02:
Did he tell the air traffic controller who was in charge of the trainee who released the aircraft?

[00:31:08] Speaker 04:
Has it been his position that he had no authority to do anything about this and no supervisory authority over what was going on in the tower at that time?

[00:31:17] Speaker 02:
No, Judge, that's not his position.

[00:31:18] Speaker 04:
So that's not in dispute that he has the authority?

[00:31:21] Speaker 02:
His position is as the watch supervisor, my responsibility is to maintain situational awareness.

[00:31:30] Speaker 02:
That does not mean that I have to

[00:31:33] Speaker 02:
second guess every decision that every person under my supervision may make that day.

[00:31:38] Speaker 02:
In his defense, he said not only was the trainee well experienced to release the aircraft, but also so was the controller in charge.

[00:31:50] Speaker 04:
So given his position at that time, your view is that

[00:31:55] Speaker 04:
If something had gone wrong, it had nothing to do with him because the other people had authority to stop it as well?

[00:32:02] Speaker 02:
No, he was supervising the controller in charge, Judge.

[00:32:06] Speaker 04:
He testified that- So don't supervisors have an ultimate responsibility to make sure that somebody doesn't mess up?

[00:32:13] Speaker 04:
so that there won't be some catastrophic event occurring?

[00:32:16] Speaker 02:
Yes, Judge, they do.

[00:32:17] Speaker 02:
I agree with that proposition.

[00:32:20] Speaker 02:
In this case, though, if you read the record, what he said was, at the time that the aircraft were allowed to take off, everything that needed to be done had been done.

[00:32:32] Speaker 02:
And it was only because there were unforeseen circumstances that occurred after they were given permission to take off

[00:32:40] Speaker 02:
that caused this particular incident or problem to occur.

[00:32:44] Speaker 04:
Is he saying that they were unforeseen and nobody could have stopped it at that point?

[00:32:51] Speaker 04:
No.

[00:32:52] Speaker 04:
He had the ability to intervene and correct the situation, right?

[00:32:57] Speaker 02:
He could not have intervened after the aircraft were given clearance to take off because he testified that once they leave the runway, they are no longer under the control of the Air Force.

[00:33:08] Speaker 02:
traffic controller there under the control of the local San Antonio air control tower.

[00:33:13] Speaker 02:
The only thing he could have done would be to notify the San Antonio air traffic control tower, but they were already aware of the situation and were taking steps to correct it.

[00:33:26] Speaker 04:
Anything further?

[00:33:28] Speaker 02:
No, Your Honor.

[00:33:29] Speaker 04:
Thank you.

[00:33:29] Speaker 04:
We thank both sides in the case.

[00:33:31] Speaker 02:
Thank you, judges.