[00:00:00] Speaker 04:
1896, Bryant versus DVA.

[00:00:03] Speaker 04:
Mr. Webb, please proceed.

[00:00:06] Speaker 01:
Good morning, Your Honors.

[00:00:07] Speaker 01:
May it please the Court.

[00:00:09] Speaker 01:
Before I jump into the Rodriguez and the Conner cases, I would like to provide some background on this matter as I believe a harmless error analysis will be critical in making the determination.

[00:00:19] Speaker 01:
The events in this matter took place just around the time of the Ahmaud Arbery incident where an unarmed African American man was shot by police officers in the state of Georgia.

[00:00:28] Speaker 01:
the same state that this incident took place in.

[00:00:30] Speaker 01:
Petitioner, being an African-American male in the same state, was acutely aware of his surroundings and his precarious situation when he was apprehended by Columbus County deputies.

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This set the stage for an approximately 48-minute-long rant of sorts where the topic of Petitioner's grave concerns were the state of policing generally and specifically how he was treated that day.

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As it pertains to the Douglas Factors, I believe that the situation should have been taken into consideration as a mitigating factor.

[00:01:02] Speaker 01:
The Douglas Factors were not used and they should have been.

[00:01:06] Speaker 01:
We filed this brief on August 3rd.

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On August 6th, this court came out with the Connor case, Connor v. Department of Veterans Affairs.

[00:01:16] Speaker 01:
Connor v. Department of Veterans Affairs affirmed

[00:01:19] Speaker 01:
I wouldn't say first, but it clarifies that the Douglas Factors should be used when considering what a penalty should be in a case.

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Not that it should go to mitigating, but in the context of choosing the penalty, you can go through the Douglas Factors.

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One of those Douglas Factors is the context of an incident and the allegations.

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And so certainly we think that should be taken into consideration.

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Amongst other issues that day, the petitioner was stopped.

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He was frisked at the very beginning of the incident.

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Each one of his comments was tempered with criticism of policing generally.

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Please keep in mind that petitioner was not only a VA police officer, but he was actually a member of the

[00:02:17] Speaker 01:
Muskegee County police deputies, he himself was a deputy and he knew of and at least worked with and a little bit with the deputies that were, stopped him, frisked him and were serving this temporary protection order, which ultimately it was found in his favor.

[00:02:42] Speaker 01:
So at this point in time,

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It was a ex parte TPO that was being served and ultimately it was found in favor.

[00:02:51] Speaker 03:
Mr. Webb, this is Judge Prost.

[00:02:54] Speaker 03:
We talked a little yesterday, if you recall, and we talked mainly in your other case about substantial evidence versus preponderance.

[00:03:01] Speaker 03:
So let me follow up with what you're saying about the Douglas factor.

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There are a lot of them.

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There are like 12 of them.

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And it seems to me that quite a number of them are baked in to what the determination is.

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Like, can you trust it, the seriousness of the offenses?

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So is it fair to say that you're focusing, I'm just, whether we manned or not, I mean, I'm just trying to get the focus.

[00:03:27] Speaker 03:
I know you're brief focused on this comparability thing.

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And I guess this morning you're focusing, you know, on what would you call it, the mitigation aspect?

[00:03:39] Speaker 01:
I believe so, the mitigation, but also I was about to get around to there is also comparator evidence, which would go in petitioner's favor, we think, substantially.

[00:03:50] Speaker 03:
Okay, but just on the compare, I mean,

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You started off with harmless error, which I wasn't clear the point you were making.

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And clearly here, the deciding official when asked said, no, I didn't consider the Douglas factor.

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So that's a strong point in your favor.

[00:04:06] Speaker 03:
But with respect to mitigation, I mean, you all laid this out and he said, I considered all of it.

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Are we to assume that that wasn't true and he didn't think about what you had laid out in your response about what you call the mitigating circumstances surrounding this event?

[00:04:26] Speaker 01:
Well, there's a couple of points and I can point them out to you in the appendix where we specifically asked, well, I specifically asked did you consider the Douglas Factors and they said no.

[00:04:41] Speaker 01:
There was two points

[00:04:42] Speaker 03:
No, I take your point.

[00:04:43] Speaker 03:
And he did.

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Yeah, he did say that.

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But in another portion of the appendix, he said he took into consideration the mitigating circumstances that had been provided him as part of the responses.

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That's a JA 286.

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So I take your point, but there's also something else, right?

[00:05:04] Speaker 01:
That is correct.

[00:05:04] Speaker 01:
It's difficult to

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I think the issue with the testimony is that at times it's contradictory and it's a bit... I think both the proposing and the deciding official contradict themselves.

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They contradict each other at some points.

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So it's difficult to say why they made the decisions that they did.

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what exactly they thought about.

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I think he does say that.

[00:05:42] Speaker 01:
It is correct, he does say that.

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At the same time though, I think what he really focused on was, he did focus on one factor and that was whether petitioner connected the incident to his job.

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And I guess, I suppose that is crucial because this did take place outside the workplace.

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And then in addition to that,

[00:06:06] Speaker 01:
I think that phrase, though, means he took into consideration the whole 47 minutes and what was said, not necessarily the Douglas Factors.

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I certainly don't think that he went down the 12 Douglas Factors and read into any of that.

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And then at best, the testimony is contradictory, so it's difficult to say

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It's difficult to make a judgment either way.

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However, when asked point blank multiple times whether he took into consideration the Douglas Factors, he said no.

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And the same goes for the proposing official.

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I'd like to move on to, in addition, there's the Rodriguez case, which changed the standard, the burden of proof.

[00:07:02] Speaker 01:
That's addressed not so much in the opening brief, but it was in our reply brief.

[00:07:08] Speaker 01:
There, again, the standard has been raised to proponents of the evidence.

[00:07:15] Speaker 01:
The deciding official made his determination based upon the lower burden of proof, and we believe that if it goes back on remand, that the deciding official would have the new case law

[00:07:31] Speaker 01:
presumably taking that into consideration, and there's a lot of reasons why he may make a different decision, therefore essentially obviating any sort of harmless error analysis.

[00:07:48] Speaker 04:
What are the consequences of doing that?

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What happens to Mr. Bryant if we do vacate and remand because the evidentiary burden wasn't correct?

[00:08:01] Speaker 01:
We believe that he would, nothing would happen I think until the agency has an additional opportunity to make a new decision.

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And also I think that's what we believe would happen under the law.

[00:08:24] Speaker 01:
We're also considering practical reasons if he was awarded back pay

[00:08:31] Speaker 01:
then the agency turns around and decides the same exact way.

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It goes to MSPB.

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MSPB might uphold that decision.

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I suppose the money would have to, he would get paid back pay, but then he would have to pay it back.

[00:08:46] Speaker 01:
So for practical reasons.

[00:08:50] Speaker 04:
I'm not following you, counsel.

[00:08:52] Speaker 04:
If the deciding official below fired him using the wrong standard,

[00:08:58] Speaker 04:
then doesn't that unravel the entire action?

[00:09:01] Speaker 04:
And isn't he reinstated with back pay?

[00:09:04] Speaker 04:
And they may decide to retry and fire him again, but then wouldn't it be effective on the day they actually make the new decision?

[00:09:10] Speaker 04:
I mean, I don't understand why he'd be paying back back pay.

[00:09:13] Speaker 04:
Please help me understand the law better.

[00:09:16] Speaker 01:
Basically, I do believe he would be reinstated and that he would have to wait for a new decision.

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And depending on what that decision may be.

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But yes, he would be reinstated.

[00:09:34] Speaker 01:
That's correct.

[00:09:44] Speaker 00:
This is Judge Toronto.

[00:09:45] Speaker 00:
Can I ask this question?

[00:09:46] Speaker 00:
I'm sorry if I probably should know the answer to this.

[00:09:49] Speaker 00:
Does the standard of proof now

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clarified to be preponderance, apply to facts that go into the Douglas penalty analysis or only to the underlying charges?

[00:10:07] Speaker 01:
It would go to the underlying facts that would go into the Douglas analysis.

[00:10:13] Speaker 00:
As well as the underlying, I don't know, conduct on becoming or whatever the underlying charge was.

[00:10:19] Speaker 01:
That is correct, Your Honor.

[00:10:21] Speaker 00:
Okay.

[00:10:23] Speaker 04:
Okay.

[00:10:23] Speaker 04:
Thank you, Mr. Webb.

[00:10:24] Speaker 04:
Let's hear from Ms.

[00:10:25] Speaker 04:
Westerkamp, please.

[00:10:28] Speaker 02:
Yes.

[00:10:29] Speaker 02:
Good morning and may it please the court.

[00:10:32] Speaker 02:
Just to touch briefly on the Rodriguez case and the impact that it has on this particular situation.

[00:10:39] Speaker 02:
I think that we have a case where there's just a mountain of evidence that Mr. Bryant made those statements to the deputies when they were serving that order of protection.

[00:10:50] Speaker 02:
It was captured on three body camera videos, which both of the proposing, which was Chief Agee, and the deciding official, Mr. Frupp, he reviewed.

[00:10:58] Speaker 02:
And the administrative judge also reviewed the videos.

[00:11:02] Speaker 02:
And various clips of the videos were shown during the testimony of the witnesses.

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And so I think we have something here where there's just no dispute about what happened.

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And even in Mr. Bryant's declaration attached to his written response, which did go through and lay out the Douglas Factors

[00:11:20] Speaker 02:
and that's in Appendix 121, he admitted that he made the statements.

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And so I think we have a situation here where regardless of whether the burden of proof standard was substantial evidence or by preponderance of the evidence, it's just very plain what happened on that day in May of 2020.

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And indeed, at the appendix on pages 276, 306, and 299,

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both of the deciding officials said there's just no place for this type of behavior as a federal VA officer, and that they would have removed him because, again, he couldn't be trusted anymore.

[00:11:58] Speaker 02:
And even the VA only became aware of the situation because the deputies, the Muskegee County Sheriff's Office called them and said, this happened.

[00:12:09] Speaker 02:
We're taking our guys off this rotation.

[00:12:11] Speaker 02:
We can't believe that you employ people that would act like this.

[00:12:14] Speaker 02:
And so we just have an instance where

[00:12:17] Speaker 02:
This record's just overwhelming.

[00:12:19] Speaker 02:
Ms.

[00:12:20] Speaker 03:
Westerkamp, this is Judge Prost.

[00:12:22] Speaker 03:
I mean, I take your point, but I don't think it's just a Douglas factor that the deciding official would consider circumstances surrounding the event.

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And so how are we that certain?

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that this isn't just a clear cut, no excuses, he never made any excuse, there was no context in this, and he just did what we all know he did on the body camp, end of story.

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I mean, he has made an argument about his intent and context,

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And that's just not only a Douglas factor, is it?

[00:13:01] Speaker 03:
Wouldn't that arguably, I mean, you get a do-over, but isn't there enough to suggest that maybe we're not 100% clear the same result would have a nerd under a different standard?

[00:13:17] Speaker 02:
Your Honor, I think that the deciding officials, no, I don't think there would be a different outcome under the higher preponderance of the evidence standard.

[00:13:26] Speaker 02:
And the reason why is, is because I know that Mr. Webb mentioned the, this occurred right around the time with the Ahmaud Arbery incident.

[00:13:36] Speaker 02:
And so the testimony from both the deciding officials was, you know, with Mr. Faruqi, he indicated that this was, what was it?

[00:13:48] Speaker 02:
It was, that the time was related to his conduct and that he did consider that

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It was, you know, irritating and, you know, an embarrassing situation for him to be in.

[00:14:01] Speaker 02:
And the administrative judge credited that testimony and found that both Chief Iggy and Mr. Ferrucchi had testified that, you know, they did consider lesser penalties but just felt that this conduct was just, rose to the level of removal.

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And importantly, the administrative judge also considered Mr. Bryant's testimony that,

[00:14:24] Speaker 02:
He made some of these statements just to improve policing practices.

[00:14:30] Speaker 03:
Well, I don't think what's really an issue is what the AJ said here or did here.

[00:14:37] Speaker 03:
We're looking at what the deciding official did, what standard he used, whether he considered Douglas.

[00:14:43] Speaker 03:
So I'm not sure the AJ gets you whatever he said or analyzed gets us out from the dilemma we're under.

[00:14:51] Speaker 03:
Could I move you?

[00:14:52] Speaker 03:
I mean, I guess we were, there's some overlap in the issues, but on the Douglas factors issue?

[00:14:58] Speaker 03:
Yes.

[00:14:59] Speaker 03:
What do we make of that?

[00:15:04] Speaker 03:
Is there a harmless error argument to be made, leaving aside now the burden of proof of substantial versus preponderance?

[00:15:11] Speaker 03:
But just on the Douglas, clearly, the guy said on the stand, I didn't consider Douglas.

[00:15:17] Speaker 03:
That's kind of hard to get around, right?

[00:15:20] Speaker 02:
That's right.

[00:15:21] Speaker 02:
He did.

[00:15:21] Speaker 02:
Mr. Ferrucchi did admit to that.

[00:15:26] Speaker 02:
decision letter removing Mr. Bryant, and that's at the appendix of 103.

[00:15:31] Speaker 02:
He also stated that he carefully reviewed the written reply of Mr. Bryant in which Mr. Bryant had gone through the various Douglas Factors.

[00:15:38] Speaker 02:
But I think you have that straight admission from Mr. Faruqi, except then you had questioning and testimony from Mr. Faruqi and Chief Agee that did go to the relevant Douglas Factors.

[00:15:50] Speaker 02:
And we'd mentioned that in our brief, whereas, for instance, the second factor

[00:15:54] Speaker 02:
The employees job level in context with the public and that was in the proposed removal letter, which was is that the appendix at 130 through 131 where she said.

[00:16:06] Speaker 02:
You're one of the first faces that the public sees.

[00:16:09] Speaker 03:
And, you know, he has the ability to... Well, I don't disagree with you, Miss... Just speaking for myself, that there were some of the Douglas factors.

[00:16:16] Speaker 03:
I mean, after all, there are 12 of them.

[00:16:18] Speaker 03:
A number of them are baked in in certain circumstances, possibly including this one, into what the deciding official decided in terms of taking the action.

[00:16:29] Speaker 03:
But some, not so much, right?

[00:16:32] Speaker 03:
I mean, he said he looked at mitigation.

[00:16:35] Speaker 03:
But there's no discussion about the, there's nothing more than that to suggest that the deciding official considered the context and all of the mitigation that your friend here has discussed with us today.

[00:16:47] Speaker 03:
And your friend also raises the comparator stuff.

[00:16:50] Speaker 03:
And I don't think there's anything on the record to suggest that the deciding official looked at the comparator.

[00:16:56] Speaker 03:
Mr. Lucas or whoever it was, and thought about that.

[00:17:01] Speaker 03:
So at least on those two points, how do we avoid Douglas, a need for doing Douglas?

[00:17:06] Speaker 02:
Well, first, Your Honor, Judge Post, with the mitigation, that's at page 284, where Mr. Ferrucchi did say, and he recognized there were a lot of events going on out there.

[00:17:18] Speaker 02:
And that goes to both the allegations of policing and the Mr. Aubrey incident.

[00:17:24] Speaker 02:
And indeed, the Douglas Factors, again, were in the written response from Mr. Bryant.

[00:17:30] Speaker 02:
And so you did have here where with mitigation or potential for rehabilitation, pages 284 through 285 of the appendix, Mr. Ferrucchi testified that it became an issue of trust and whether or not he could trust him to be in this position based off his conduct with those comments.

[00:17:48] Speaker 02:
And so, and even Chief Agee had testified also to that effect where he had said it was, this was just highly concerning and really the only route for them was removal.

[00:18:03] Speaker 02:
And then turning to the second, the second point that you raised, Your Honor, which was the comparator issue.

[00:18:11] Speaker 02:
Although in the written response there is,

[00:18:16] Speaker 02:
a brief reference to an alleged comparator, and that is at Appendix 114.

[00:18:23] Speaker 02:
That just states that Sergeant Lucas committed three counts of simple assault and received no discipline whatsoever.

[00:18:30] Speaker 02:
That's all that was in the written response.

[00:18:34] Speaker 02:
But when Mr. Faruqi and Chief Agee testified, Mr. Faruqi, for one, testified that he was unaware of any comparator.

[00:18:45] Speaker 02:
And Mr. Bryant did not actually identify the comparator issue in the pre-hearing briefing at page 439 of the appendix.

[00:18:54] Speaker 02:
And moreover, the administrative judge found Chief Agee's testimony as well as Mr. Ferrucchi's testimony to be credible in that they were unaware of any alleged comparator.

[00:19:08] Speaker 02:
And I think Mr. Ferrucchi testified that he was unaware, and this is at 275 through 276 of the appendix,

[00:19:16] Speaker 02:
that he was not aware of any employees who have had similar circumstances or had that misconduct captured on video footage.

[00:19:23] Speaker 00:
And indeed... I'm sorry, this is Jeff Serrano.

[00:19:28] Speaker 00:
What is the legal significance of his awareness or not of this comparator?

[00:19:37] Speaker 02:
Well, I think, Your Honor, the comparator

[00:19:39] Speaker 02:
It's a similarly situated employee.

[00:19:42] Speaker 02:
That's one of the Douglas Factors.

[00:19:44] Speaker 00:
Right.

[00:19:45] Speaker 00:
I'm sorry.

[00:19:46] Speaker 00:
Let me yell the word awareness to give the emphasis I have in mind.

[00:19:52] Speaker 00:
Why, what is the legal significance of whether the deciding official was aware or not aware of, now let's assume for purposes of this question, of a actual comparator?

[00:20:07] Speaker 00:
Is there something in the law that says even if there are 17 incidents that are in fact very similar and have been treated more favorably, it's okay in terms of Douglas analysis, penalty analysis?

[00:20:23] Speaker 00:
Those don't matter if the deciding official wasn't aware of them?

[00:20:26] Speaker 00:
The answer may be yes.

[00:20:27] Speaker 00:
That's the question I'm trying to ask.

[00:20:32] Speaker 02:
I think the answer is yes to your hypothetical, Your Honor, and when it comes to

[00:20:38] Speaker 02:
Clearly, the similarly situated employees and comparators is meant for consistency because you don't want to have employees treated disparately.

[00:20:48] Speaker 02:
But in this instance, with the allegation and again... I think I understand all of that.

[00:20:56] Speaker 00:
Just to be clear, your view is that the deciding official's lack of awareness of actual comparators

[00:21:07] Speaker 00:
takes those comparatives out of the required Douglas analysis?

[00:21:12] Speaker 02:
Well, I think that with the testimony we had from Mr. Ferrucchi, where he did say he was not aware of any similarly situated employees, then that, I guess, makes it... He testified that that basically wasn't relevant.

[00:21:29] Speaker 02:
It's not one of the relevant Douglas factors.

[00:21:32] Speaker 02:
And with... But even so,

[00:21:35] Speaker 02:
If you do turn to the affirmative defenses, where I think that same employee, Sergeant Lucas, was brought up.

[00:21:42] Speaker 00:
Right.

[00:21:42] Speaker 00:
I know.

[00:21:43] Speaker 00:
I understand that on the affirmative defenses, the awareness is, the A.J.

[00:21:47] Speaker 00:
found was decisive.

[00:21:49] Speaker 00:
That's not what I was getting at.

[00:21:52] Speaker 00:
The lack of awareness was decisive.

[00:21:54] Speaker 00:
I believe you didn't know about them, so you couldn't possibly have retaliated for a disclosure of them.

[00:22:00] Speaker 00:
I get that.

[00:22:01] Speaker 00:
I asked your opposite number the question, does the preponderance standard apply to facts that bear on the Douglas analysis or not?

[00:22:18] Speaker 02:
So that's the burden of proof, and that's for the agency.

[00:22:22] Speaker 02:
And I think that it must with the, because when you're looking at the Douglas Factors, you're clearly looking at what are the facts before you.

[00:22:32] Speaker 00:
And so in this instance.

[00:22:35] Speaker 00:
Okay, and just, I think that's, I think I have my answer on that.

[00:22:41] Speaker 00:
You were discussing what might be called harmless error and maybe you did even call it harmless error.

[00:22:48] Speaker 00:
Do you have any precedent for treating as harmless error a fact finder's application of too low a burden of proof or standard of proof as sometimes as I think I4I calls it?

[00:23:11] Speaker 00:
Or is that the kind of error that says we have to have a do-over?

[00:23:18] Speaker 00:
Or is there a harmless error analysis that can be applied to that?

[00:23:24] Speaker 00:
And I'm talking about the abstract, not just in this case.

[00:23:28] Speaker 02:
Yes.

[00:23:29] Speaker 02:
And actually, there is a case where an arbitrator applied the wrong burden of proof.

[00:23:38] Speaker 02:
And I believe I'm kind of get the site here.

[00:23:41] Speaker 02:
where, and I think it is called Martin versus Department of Veterans Affairs, and hold on one second, Your Honor.

[00:23:51] Speaker 02:
But, of course, this is when the technology starts to fail you.

[00:23:58] Speaker 02:
But, yes, and so, and in this case, it was Martin versus DBA, and the site is 412 F3 1258, where,

[00:24:08] Speaker 02:
In that instance, the arbitrator applied an incorrect standard and had impermissibly shifted the burden of proof.

[00:24:15] Speaker 02:
And this court found that that error was harmless.

[00:24:17] Speaker 02:
And so that is precedent for something with the kind of situation that we're in.

[00:24:24] Speaker 00:
And... So can I just ask this question?

[00:24:26] Speaker 00:
So Rodriguez adopted as its remedy for the same kind of...

[00:24:34] Speaker 00:
violation, namely the deciding official did not actually apply a preponderance standard, but applied a substantial evidence standard, which as Sayers explains means that we don't even know if the deciding official decided what he believed, but only what some reasonable person could believe.

[00:24:53] Speaker 00:
And the remedy that Rodriguez said was a remand to the board, let the board figure out the remedy, but presumably

[00:25:02] Speaker 00:
a further remand to the deciding official.

[00:25:06] Speaker 00:
And Rodriguez didn't go further and say, well, here's what's supposed to happen in the interim.

[00:25:11] Speaker 00:
Is there going to be a reinstatement?

[00:25:13] Speaker 00:
It didn't ask the back pay ask question under 5 USC 5596 and whether this would be subject to that.

[00:25:21] Speaker 00:
Why shouldn't we do the same thing here?

[00:25:24] Speaker 00:
with a remand for consideration under the preponderance standard, I'm sorry, a remand for the board to consider what to do in light of the failure of the deciding official to apply the preponderance standard including to the Douglas Analysis which itself was at least on its, possibly incomplete.

[00:25:51] Speaker 02:
And I think my time may be up, but I want to answer your Honor's question.

[00:25:56] Speaker 02:
With Rodriguez, I would refer you to footnote three where, in the quote, there could be a situation where it's supported by, quote, a great deal of evidence.

[00:26:05] Speaker 02:
And I think that we're in one of those situations.

[00:26:07] Speaker 02:
But in terms of if this Court were inclined to remand the case back to the Board, we would ask the Court to find that

[00:26:16] Speaker 02:
the burden of proof, whether it was substantial evidence or preponderance of evidence, that that's harmless error, because this is an instance where everything was captured on video, and for this court to vacate and remand and ask the administrative judge to reexamine the penalty using the Douglas Factors.

[00:26:36] Speaker 00:
Okay.

[00:26:36] Speaker 00:
Thank you.

[00:26:37] Speaker 04:
Hearing no further questions, thank you, Wester Camp.

[00:26:40] Speaker 04:
Thank you.

[00:26:41] Speaker 04:
Mr. Webb, you have some rebuttal time.

[00:26:46] Speaker 01:
Yes, Your Honor.

[00:26:47] Speaker 01:
I would like to start off by addressing the agency's claim, the government's claim that there's a plethora of evidence.

[00:26:55] Speaker 01:
I think the issue there is that the statements are on body cam for everyone to see and listen to.

[00:27:02] Speaker 01:
The intent of the statements, how they were taken, whether they were, a lot of them were sarcastic, a lot of them were made with

[00:27:15] Speaker 01:
The intent was almost kind of ridiculing the state of policing.

[00:27:21] Speaker 01:
And most of them were made frivolously without the intent of actually inflicting bodily harm on anyone.

[00:27:28] Speaker 01:
And furthermore, the deputies, they don't appear to take it that way.

[00:27:34] Speaker 01:
And there was a lot addressed in terms of whether the petitioner was actually arrested or not, whether he was charged with anything.

[00:27:41] Speaker 01:
And ultimately, he was not charged with terroristic threats.

[00:27:44] Speaker 01:
Nothing that he potentially could have been charged with, he wasn't charged with.

[00:27:47] Speaker 01:
Furthermore, one of the Douglas Factors, we talked about a lot what Douglas Factors were considered.

[00:27:52] Speaker 01:
Concerning the Douglas Factors that were not considered was his prior discipline was not looked at, which he had none.

[00:27:57] Speaker 01:
The fact that this occurred off duty, he was a great performer.

[00:28:01] Speaker 01:
There was no chance for rehabilitation.

[00:28:04] Speaker 01:
And I believe also the comparative evidence.

[00:28:07] Speaker 01:
So there was many more factors which weren't considered.

[00:28:11] Speaker 01:
I would like to reiterate that we do believe that the preponderance of the evidence standard goes to the ultimate issue of whether or not he engaged in the conduct as alleged.

[00:28:21] Speaker 01:
And because the Douglas Factors would filter into that, we do believe that the preponderance of the evidence standard is an overall burden of proof that affects all aspects of the case when it comes to the first prong, whether or not he engaged in the conduct as alleged.

[00:28:42] Speaker 01:
And then furthermore, I believe the final point I wanted to address was whether or not the substantial evidence was too low.

[00:28:53] Speaker 01:
And I believe that's addressed in the Rodriguez case where, in fact, it's just too low of a burden of proof for any trial judge to take that into consideration.

[00:29:08] Speaker 01:
And I know that there is a bit of back and forth.

[00:29:11] Speaker 01:
And to my recollection, that is in the Rodriguez case.

[00:29:15] Speaker 01:
Outside of that, there's no further.

[00:29:20] Speaker 01:
Oh, and in addition, we just wanted to address the comparator evidence.

[00:29:26] Speaker 01:
Regarding the comparator evidence, I think that the government's argument is essentially stating that

[00:29:32] Speaker 01:
the government is under an obligation to treat everybody equally, regardless of whether it was brought to the attention of the deciding official or not.

[00:29:42] Speaker 01:
And so it's difficult to see how that would, such an argument, if it's taken by the court, how that would play out in the future in terms of putting the burden on the government and deciding officials and the proposing officials in terms of

[00:30:00] Speaker 01:
Should they seek out comparators or are they just supposed to only care about treating people equally if it's brought to their attention?

[00:30:09] Speaker 01:
And with that, we rest our case.

[00:30:14] Speaker 04:
I thank both counsels.

[00:30:15] Speaker 04:
This case is taken under submission.