[00:00:00] Speaker 02:
Again, case number 21, 1690, Fraternal Order of Police against the Secretary of the Interior.

[00:00:09] Speaker 02:
Mr. Miller, please proceed.

[00:00:12] Speaker 01:
Good morning, Your Honors.

[00:00:14] Speaker 01:
Thank you for working with me on video today.

[00:00:16] Speaker 01:
And may it please the Court, as an initial matter, I am aware that there was a jurisdictional question raised by the agency, I believe, on Monday.

[00:00:28] Speaker 01:
Since that issue was not briefed, I just wanted to start and, I guess, ask if that would be considered, or if they've argued and switched to be heard on that issue, I guess, before I get into the rest of the case.

[00:00:40] Speaker 02:
But are you prepared to discuss that issue?

[00:00:43] Speaker 02:
It does go to the foundation of this appeal.

[00:00:48] Speaker 01:
Sure.

[00:00:48] Speaker 01:
And that's why I wanted to start with it.

[00:00:50] Speaker 01:
And yes, I can touch on that briefly.

[00:00:52] Speaker 02:
Yeah, please touch on that.

[00:00:54] Speaker 01:
Sure.

[00:00:55] Speaker 01:
In reviewing the case cited by Appleme's, I do agree that in its inception, it is similar to the matter at hand.

[00:01:04] Speaker 01:
There was a proposed disciplinary action of a federal employee, and they, through their collective bargaining agreement, invoked arbitration through their union.

[00:01:12] Speaker 01:
However, I believe that is essentially where the similarities end.

[00:01:16] Speaker 01:
In AFGE, the union on behalf of Apple or the employee prevailed.

[00:01:23] Speaker 01:
And therefore, there was no further involvement of the federal employee.

[00:01:27] Speaker 01:
Whereas, in this matter, the arbitrator ruled in favor of the agency.

[00:01:32] Speaker 01:
And therefore, the union is still representing Mr. Forrest in his proposed removal.

[00:01:38] Speaker 01:
Whereas, as we're aware, in AFGE, that was solely for attorney's fees, was that appeal.

[00:01:44] Speaker 01:
I would briefly going through, I know the Hunt and Greaves cases had been cited.

[00:01:51] Speaker 01:
in the AFG opinion.

[00:01:53] Speaker 01:
I do believe the union easily meets the first two criteria to be represented as an association in this matter.

[00:02:02] Speaker 01:
The first, whether a member would otherwise have standing to sue in their own right.

[00:02:07] Speaker 01:
I believe the agency that conceded this in the letter on Monday that they believe that Mr. Ford should have been the party name in this case rather than he had no ability to bring it at all.

[00:02:20] Speaker 01:
And certainly, again, this is Mr. Foer's removal that we're speaking of.

[00:02:25] Speaker 01:
So I certainly do believe he had the right to appeal.

[00:02:28] Speaker 01:
And the second prong, the interests it seeks to protect or the union seeks to protect are germane to the organization's purpose.

[00:02:36] Speaker 01:
I certainly believe that criteria is met by the union.

[00:02:40] Speaker 01:
This union's mission is specifically to represent officers in workplace issues, which necessarily and frequently

[00:02:47] Speaker 01:
involves disciplinary matters such as the removal in this case.

[00:02:52] Speaker 01:
As to the third prong, whether the claim is asserted or the relief requested requires participation of the individual members in the lawsuit.

[00:03:03] Speaker 01:
I would note that, and I believe this was briefly brought up in the AFGT opinion, the only reason why the union was named as petitioner in this case is because they were

[00:03:14] Speaker 01:
only party that had the right to invoke arbitration in the first place of the removal.

[00:03:19] Speaker 01:
However, Mr. Forrest has been named specifically as a person of interest in all of petitioners briefs and in any documents that requested whether who else is involved in this case.

[00:03:32] Speaker 01:
I can represent Mr. Forrest is still clearly very much involved.

[00:03:35] Speaker 01:
I met with him yesterday to discuss these issues.

[00:03:38] Speaker 01:
I think that if the

[00:03:40] Speaker 01:
Court does believe that Mr. Foer should have been named as a party.

[00:03:44] Speaker 01:
I would just ask you to recapture the filing because, again, he has consistently been named as a person of interest, and he certainly still is a part of this proceeding.

[00:03:57] Speaker 01:
Because I know that was a main issue, I'd certainly be happy to answer any questions then on that front.

[00:04:02] Speaker 04:
Well, this is Judge Prost.

[00:04:04] Speaker 04:
I heard your analysis of AFGE.

[00:04:08] Speaker 04:
The case that it relies on is Reed versus Department of Commerce.

[00:04:13] Speaker 04:
So I'm not sure, except for the caveats on the end about how he's a person of interest, which would mean that you could arguably, and we'll ask the government about this, file a motion to join him.

[00:04:25] Speaker 04:
But otherwise, I think you're not disputing right that he needs to be part of this case under the statutory regime, which says this is just like the MSPB.

[00:04:37] Speaker 04:
And the MSPB refers to individual claims.

[00:04:41] Speaker 04:
I understand, as Judge Raina said in his concurrence,

[00:04:44] Speaker 04:
It's a little anomalous because only the union can invoke arbitration, but I think we've been quite clear that notwithstanding that, this person has to be captioned and joined in this case.

[00:04:57] Speaker 04:
Would you agree with that?

[00:05:00] Speaker 01:
I would agree with that analysis, yes.

[00:05:03] Speaker 01:
Now that it has been raised, it does, yes.

[00:05:05] Speaker 01:
I would agree with that.

[00:05:06] Speaker 04:
I appreciate that very much.

[00:05:08] Speaker 04:
But is your view, and we'll ask the government.

[00:05:09] Speaker 04:
I have no idea whether the government thinks there would be some reason that would foreclose your ability to move to join your client as a party at this juncture.

[00:05:22] Speaker 04:
We'll ask them.

[00:05:23] Speaker 04:
But I assume you would be amenable and ready, willing, and able to do that if that would cure the defect.

[00:05:29] Speaker 01:
Yes, Your Honor.

[00:05:30] Speaker 01:
That is correct.

[00:05:34] Speaker 01:
Thank you very much.

[00:05:35] Speaker 01:
Then to move into the main issues of our appeal, and again, I'm aware everyone has read the brief, so I will not go through each detail.

[00:05:42] Speaker 01:
As you're aware, this is a removal case for two charges, failure of all procedures, as well as conduct on the coming.

[00:05:53] Speaker 01:
The conduct on the coming had two specifications under that charge.

[00:05:59] Speaker 01:
One of the main issues we found in this case was, and we had mentioned it at arbitration, was the overall timeliness of this matter.

[00:06:09] Speaker 01:
We certainly believe, and I know there is case law in this circuit about the timeliness provisions and what is timely.

[00:06:18] Speaker 01:
We do believe our client was prejudiced.

[00:06:20] Speaker 01:
There was, I believe, between the time the investigations were closed and the time discipline was actually proposed to be implemented.

[00:06:29] Speaker 01:
well over a year and a half that our client had sat waiting for the result of this matter and even for the failure of the follow-up procedures, I believe, was over two years.

[00:06:40] Speaker 01:
In that time, in our position, we don't believe that there can be no prejudice to our client when he had to sit that entire time and endure the mental toll and stress of having to wait and find out what was going to happen, as well as we believe the timeliness.

[00:06:55] Speaker 01:
The entire purpose of the provision is to prevent such a situation as that

[00:06:59] Speaker 01:
these charges hanging over our client indefinitely.

[00:07:02] Speaker 01:
Nonetheless, even if the court also agrees with the arbitrator that the time of this provision was not violated, we do believe that underscores the entire issues in this case, frankly.

[00:07:16] Speaker 01:
In this matter, again, without rehashing the time limits, our client for that entire year and a half, a little over that,

[00:07:28] Speaker 01:
was, while this process was going through, even when there was protective order in place against my client, he still remained on duty.

[00:07:38] Speaker 01:
He was still coming into work every day.

[00:07:40] Speaker 01:
And the fact of the matter is, if there had been no protective order entered, my client would have

[00:07:47] Speaker 01:
maintained his entire law enforcement powers.

[00:07:50] Speaker 04:
I'm sorry, counsel.

[00:07:51] Speaker 04:
This is Judge Proce.

[00:07:52] Speaker 04:
Can I ask you about that?

[00:07:53] Speaker 04:
Because I think it's an interesting, important issue, which is I couldn't tell from the government and confirm it.

[00:08:00] Speaker 04:
But at least as of July 2018, that's the protective order time, right?

[00:08:06] Speaker 04:
Your client, I thought, was no longer in full duty status.

[00:08:11] Speaker 04:
Am I wrong about that?

[00:08:14] Speaker 01:
You're correct.

[00:08:14] Speaker 01:
It's somewhat of a vague in-between.

[00:08:17] Speaker 01:
I believe it was called a restricted duty status.

[00:08:20] Speaker 01:
Essentially, he could no longer carry a firearm and badge.

[00:08:25] Speaker 01:
He didn't have his law enforcement authority.

[00:08:28] Speaker 01:
But he was still showing up to work every day.

[00:08:31] Speaker 01:
He was assigned, I believe, at one point to communications.

[00:08:34] Speaker 01:
At another point, he was assigned.

[00:08:35] Speaker 04:
Yeah, but he wasn't performing the duties that his position required because he didn't have his firearm and his badge.

[00:08:42] Speaker 04:
So where is that in the time frame?

[00:08:44] Speaker 04:
So from July 2018 forward, he was not on full duty status, right?

[00:08:52] Speaker 01:
So partially.

[00:08:54] Speaker 01:
For the one year the protective order was

[00:09:00] Speaker 01:
status however the protective order ended I believe a few months prior to the agency proposing the removal and in that time my client was given his firearm and badge back was actually training to go back to his normal position had there been no protective

[00:09:21] Speaker 04:
So you're saying from approximately July of 2019 until October when the proposed removal was issued, he had his gun and his badge and was doing just everything.

[00:09:34] Speaker 01:
Correct, Your Honor.

[00:09:35] Speaker 04:
Can I go back to the first point you were making?

[00:09:37] Speaker 04:
I didn't want to interrupt.

[00:09:39] Speaker 04:
But you were talking about the prejudice that your client suffered because of the time delay.

[00:09:44] Speaker 04:
I mean, I get that, obviously.

[00:09:46] Speaker 04:
To have something hanging over you has some effect on you.

[00:09:50] Speaker 04:
But this was a circumstance where the alternative would have been that they had fired him earlier.

[00:10:00] Speaker 04:
I mean, you mentioned in your brief, for example, because during the interim he couldn't apply for promotions or whatever.

[00:10:08] Speaker 04:
But if you had your way, all that would have happened was they would have removed him a year earlier, in which case he wouldn't have been eligible to get the promotions anyway, right?

[00:10:19] Speaker 04:
You understand my point?

[00:10:20] Speaker 04:
I'm not seeing how the prejudice really, although I understand waiting is always

[00:10:28] Speaker 04:
a challenge, even if the waiting results and you're getting paid for a few more years than you otherwise would have if you had been fired two years earlier.

[00:10:37] Speaker 04:
I'm having a hard time putting that under the category of prejudice.

[00:10:41] Speaker 01:
Sure.

[00:10:42] Speaker 01:
Well, on the one aspect, as to the removal, I mean, it certainly is our position that there was not enough substantial evidence in the record to support that conclusion.

[00:10:52] Speaker 01:
But to go to your point, yes, if the agency had tried to implement

[00:10:57] Speaker 01:
some sort of action earlier, then yes, we would be precluded from making that type of argument because he certainly didn't have to wait as long.

[00:11:05] Speaker 01:
So I do understand that.

[00:11:07] Speaker 01:
However, at the same time, when we're looking at Douglas factors such as the seriousness of the events and I believe including the supervisor's confidence in my client's abilities, I think that highly underscores the implication that the agency has presented that

[00:11:26] Speaker 01:
This is a terrible offense.

[00:11:27] Speaker 01:
We can no longer trust him to be a police officer.

[00:11:30] Speaker 01:
When he was still showing up to work every day during that entire time frame, he was given his gun and badge back after the protective order.

[00:11:38] Speaker 01:
And to briefly mention the protective order, by federal law, my client wasn't allowed to carry a firearm.

[00:11:45] Speaker 01:
So that's the reason it was taken away.

[00:11:47] Speaker 01:
Whereas, so arguably, if there had been no protective order, my client would have been in a full duty status up until

[00:11:55] Speaker 01:
October of 2019 when the proposed removal occurred.

[00:11:59] Speaker 01:
So on that front, we have difficulty understanding how the agency all of a sudden decides that this is such a terrible issue.

[00:12:09] Speaker 01:
My client can no longer perform his duties, et cetera, et cetera.

[00:12:13] Speaker 01:
And I think some of that also goes to the timeline in this matter, that again, my client is going back to full duty.

[00:12:24] Speaker 01:
Sorry, Rob.

[00:12:26] Speaker 01:
I'm sorry, I didn't know if there was a question.

[00:12:27] Speaker 01:
I apologize.

[00:12:31] Speaker 01:
But again, after the protective order expired and my client's attorney was full duty, then the complainant in this matter went public with the video.

[00:12:41] Speaker 01:
And then all of a sudden, the agency comes out a month later with the proposed removal.

[00:12:46] Speaker 01:
And so again, I think that just underscores

[00:12:51] Speaker 01:
seriousness of these allegations that it appears that my client was ready to go back to duty as normal.

[00:12:58] Speaker 01:
And then all of a sudden, he wasn't.

[00:13:00] Speaker 01:
And then there was publicity, and the agency reacted.

[00:13:06] Speaker 01:
Again, without going into all the minor issues in our briefs, again, we don't feel there was substantial evidence to meet the initial underlying charges.

[00:13:15] Speaker 01:
And on that, I still only have a couple of minutes left at this point, so I'd be happy to take any questions if there are any.

[00:13:21] Speaker 00:
Hey, my only question is if I might.

[00:13:25] Speaker 00:
Thank you.

[00:13:26] Speaker 00:
Um, you say small issues, but unless you prevail on the timeliness question, then we review for substantial evidence, uh, what the arbitrator did here.

[00:13:36] Speaker 00:
Isn't that right?

[00:13:38] Speaker 01:
Yes, your honor.

[00:13:39] Speaker 00:
And what would the remedy be if we agreed with you that there was a timeliness violation?

[00:13:45] Speaker 01:
If you were to agree with us as to the timeliness, I believe that would have prevented the removal from ever being closed and then my client would return back to full duty and he'd receive back pay back to the date of his removal.

[00:14:00] Speaker 00:
Thank you.

[00:14:04] Speaker 02:
Any other questions?

[00:14:06] Speaker 00:
Yeah.

[00:14:06] Speaker 00:
No, thank you.

[00:14:08] Speaker 02:
Right.

[00:14:08] Speaker 02:
Let's see from the other side and you'll have some rebuttal time in any case.

[00:14:14] Speaker 02:
Okay.

[00:14:14] Speaker 02:
Mr.

[00:14:16] Speaker 05:
Good morning, Your Honors, and may it please the Court.

[00:14:18] Speaker 05:
We'll address the jurisdictional issue first.

[00:14:23] Speaker 03:
We can't hear you.

[00:14:24] Speaker 03:
Are you muted?

[00:14:29] Speaker 05:
I don't believe I am.

[00:14:35] Speaker 02:
Try again.

[00:14:38] Speaker 05:
May it please the Court, and I will address the jurisdictional issue first.

[00:14:44] Speaker 05:
as the court is aware, jurisdiction is not something that can be waived by the parties.

[00:14:49] Speaker 05:
And we believe that this court's recent decision in AFGE Local as a district attorney.

[00:14:54] Speaker 04:
Let me just cut to the chase.

[00:14:56] Speaker 04:
Do you have a reason that we could not cure whatever deficiency exists currently by your friend's client filing a motion to join at this juncture?

[00:15:07] Speaker 05:
We don't believe that.

[00:15:08] Speaker 05:
That is not the rule from AFGE Local.

[00:15:10] Speaker 05:
The appeal was dismissed for lack of jurisdiction because only

[00:15:13] Speaker 04:
Mr.. Fors could initiate this appeal under 7703 because he's the employee I don't understand but that case involved attorney that was different I mean it is it is that the government's view that at this juncture you're allowed to cure with a motion to join or not We've got some cases that suggest.

[00:15:32] Speaker 04:
I think that you can cure it, but I'd like to hear from you I

[00:15:36] Speaker 05:
Yeah, our position is that this juncture, you cannot cure the jurisdictional defect because only Mr. Forrest could have initiated the appeal in the amount of time required.

[00:15:46] Speaker 05:
And that is where the jurisdictional problem lies.

[00:15:51] Speaker 05:
So we can't substitute, at this point, Mr. Forrest for the union, because the union is never a proper party to bring in.

[00:15:59] Speaker 04:
Are you familiar with that case called Mentor versus Medical Device Alliance?

[00:16:10] Speaker 05:
I don't believe that was said.

[00:16:13] Speaker 04:
I guess it's a tough issue.

[00:16:16] Speaker 04:
I do believe that, arguably, our case law would support a calendar.

[00:16:21] Speaker 04:
So tell us again why you're just saying you can't possibly cure this kind of deficiency.

[00:16:27] Speaker 05:
I think under the rule that was recently announced, that was not an option because the appeal wasn't properly initiated by the correct party.

[00:16:37] Speaker 05:
An appeal isn't timely filed or properly initiated.

[00:16:41] Speaker 05:
That creates a jurisdictional issue, which cannot be cured.

[00:16:44] Speaker 04:
OK, can I just vent a little with you all?

[00:16:48] Speaker 04:
Because you did send us a 28-J letter two days ago.

[00:16:52] Speaker 04:
So clearly, we're way beyond the time which, if you're right, that he could cure it.

[00:16:56] Speaker 04:
But your 28-J letter wasn't based on a change in law or something new and different.

[00:17:02] Speaker 04:
The case that you cited to us has been around for like 30 to 40 years.

[00:17:07] Speaker 04:
The AFG, the Reed case was what it was predicated on.

[00:17:12] Speaker 04:
So I guess I'm a little sort of put off by the fact that you're the government.

[00:17:20] Speaker 04:
And if you thought there was a deficiency in the filing, and if you had

[00:17:25] Speaker 04:
known what you should have known then that you know now because the case law hasn't changed, why a notification then could have cured it.

[00:17:36] Speaker 04:
giving us a 28-J letter on a non-prep case that just reiterates what the law has been for 30 years.

[00:17:43] Speaker 04:
Now, maybe I should have caught it too, but I feel bad about that.

[00:17:46] Speaker 04:
But I guess, don't you understand why it's a little off-putting, the way this seems to have gone down?

[00:17:52] Speaker 05:
I agree.

[00:17:54] Speaker 05:
And we do regret that we did not, this did not come to our attention sooner.

[00:17:58] Speaker 05:
And that was,

[00:18:00] Speaker 05:
should have been raised earlier in the briefing.

[00:18:02] Speaker 05:
We just did not see the recase.

[00:18:04] Speaker 04:
And it could have even been raised in enough time for him.

[00:18:06] Speaker 04:
The notice of appeal, you could have rejected that and given him enough time to do that.

[00:18:11] Speaker 04:
And certainly saved him even after that.

[00:18:17] Speaker 04:
The union, whoever's paying the bills here, has gone through the cost of briefing and getting ready for this appeal for no good reason, because your view of the law, which may in fact be right, is not changed.

[00:18:33] Speaker 05:
We agree.

[00:18:34] Speaker 05:
And again, we regret that we did not raise this sooner.

[00:18:37] Speaker 05:
That said, of course, jurisdiction is an issue that we cannot waive, the parties cannot waive, and the court can consider

[00:18:47] Speaker 05:
at any time.

[00:18:48] Speaker 04:
Well, can I ask you one other question?

[00:18:51] Speaker 04:
I mean, you haven't read the case that I'm citing, and I don't know whether I'm absolutely right or wrong.

[00:18:55] Speaker 04:
But in this Mentor case, and they cited a Supreme Court case, one of the bases for refusing Joinder is in cases where you would have been prejudiced.

[00:19:08] Speaker 04:
The other side would be prejudiced by Joinder.

[00:19:11] Speaker 04:
That would not be the case here, right?

[00:19:13] Speaker 05:
That's correct.

[00:19:14] Speaker 05:
And we don't think the issues that are raised by this appeal would be substantially different if different at all.

[00:19:22] Speaker 05:
As Mr. Miller pointed out, Mr. Fores was identified as the real party in interest in his opening brief.

[00:19:28] Speaker 00:
And so does the government have any reason to object to a joint or a substitution of Mr. Fores if the law allows it?

[00:19:36] Speaker 00:
Is it just you think the law doesn't allow it, but you have no other basis to object?

[00:19:40] Speaker 00:
Is that right?

[00:19:41] Speaker 05:
That's correct.

[00:19:43] Speaker 05:
And so if the court would also like to hear argument on the merits, I could turn to that as well.

[00:19:51] Speaker 05:
So I'll just begin by saying, if the court does consider the merits here, Mr. Forrest began as a patrol officer in 2014.

[00:20:01] Speaker 05:
And in that amount of time, this federal agency has twice proposed that he be removed from service.

[00:20:06] Speaker 05:
And the first time was within a year.

[00:20:09] Speaker 04:
I'll just cut to the chase, because we know the history of this.

[00:20:14] Speaker 04:
What about the argument your friend is making about if this was such a serious matter that warrants removal?

[00:20:23] Speaker 04:
Why, at least, we've got a three-month period after the protective order, at least during the duration of the protective order, you took away his gun or whatever, suggesting that you didn't have confidence or you had some question about his ability to carry out his duties as a sign.

[00:20:39] Speaker 04:
But then, do you dispute, is your friend correct, that from July of 2019 until the removal letter of October of 2019, he was in fact given his gun back and resumed regular duties?

[00:20:57] Speaker 05:
Well, I don't agree with that characterization.

[00:20:59] Speaker 05:
And I would point the court to Commander Belize's testimony before the arbitrator as well as Chief Monahan's.

[00:21:06] Speaker 05:
Because actually, as soon as this incident happened, Mr. Fores and Officer Kingham were separated because there was a concern about the conduct that was going on between the two of them.

[00:21:18] Speaker 05:
They were separated so that they could not interact with each other while they were on duty.

[00:21:21] Speaker 05:
And then subsequent to that, at some point, Mr. Forrest was actually moved to a different floor in a communications department role where he was not on patrol duty.

[00:21:31] Speaker 05:
At some point there, then, his badge and his gun was taken away.

[00:21:35] Speaker 05:
But he was never put back into a patrol duty where he was unsupervised and out interacting with the public.

[00:21:46] Speaker 05:
And as Commander Blythe testified to, she was, you know,

[00:21:50] Speaker 05:
urgently trying to complete this proposed removal action before the protective order expired, so that there wouldn't be any question about him returning to a patrol duty.

[00:22:02] Speaker 05:
But he remained in a communications role until his removal.

[00:22:07] Speaker 05:
So he did not go back to, I guess, his pre-conduct role.

[00:22:15] Speaker 05:
But in addition to that, there wasn't a lot of legal reason for the agency to further restrict his duty after the protective order expired.

[00:22:25] Speaker 05:
Because as Your Honor pointed out, the investigation was complete, but this process of proposing removal and going through those steps wasn't complete.

[00:22:35] Speaker 05:
And so the agency obviously has to allow their process to play out and the due process rights afforded by

[00:22:44] Speaker 05:
the union and the agreement there to play out as well.

[00:22:49] Speaker 05:
So he was obviously paid.

[00:22:50] Speaker 04:
If the agency has complete control over that, they just have to hurry up and get the removal letter done.

[00:22:54] Speaker 04:
You put them on admin leave once you issue the proposed removal, right?

[00:22:58] Speaker 04:
And that's perfectly appropriate.

[00:23:00] Speaker 04:
No due process problem there.

[00:23:02] Speaker 04:
So you have control on your end of that.

[00:23:06] Speaker 04:
I understand that it's a problem and that you have to be responsible about it.

[00:23:11] Speaker 04:
But it seems like you're the ones that control everything in that regard.

[00:23:14] Speaker 05:
Up until the proposed removal, that is correct.

[00:23:18] Speaker 05:
And as Commander Blythe testified though, when you're talking about a proposed removal, unlike some of the other examples that were given where it's just a letter of reprimand or some other disciplinary action, the steps that you have to take just to get to that point are much more

[00:23:32] Speaker 05:
extensive and everything has to go through legal.

[00:23:35] Speaker 05:
And it just takes sometimes a long time.

[00:23:37] Speaker 05:
And she offered an explanation as to why that took longer here.

[00:23:42] Speaker 05:
And I would also just point out that I believe Mr. Miller is incorrect when he says that the collective bargaining agreement itself says that if you are not timely in effectuating this removal, the removal can't happen.

[00:24:01] Speaker 05:
provided for in the language of that agreement.

[00:24:03] Speaker 05:
It is section 18.2.

[00:24:04] Speaker 05:
It's a general provision that just says these actions should happen in a timely or should be carried out in a timely fashion.

[00:24:11] Speaker 05:
But that is the extent of it.

[00:24:13] Speaker 05:
And this court's review of the agency's behavior, of course, is limited to a harmful procedural error.

[00:24:19] Speaker 05:
And there hasn't been any sort of connection drawn between the 20-month period and

[00:24:27] Speaker 05:
an effect that would have on the removal action itself.

[00:24:32] Speaker 04:
For example... Well, is there another way to do it?

[00:24:35] Speaker 04:
I mean, let's assume there is a breach of contract.

[00:24:38] Speaker 04:
The contract says you have to do it timely, and timely means no more than a year.

[00:24:42] Speaker 04:
Outside of this arbitration, doesn't the union have a right to challenge that and to

[00:24:49] Speaker 04:
you know, enforce provisions of the collective bargaining agreement?

[00:24:52] Speaker 05:
Sure, and they can, and they did do that before the arbitrator.

[00:24:59] Speaker 05:
the other arbitration's decisions were looked at.

[00:25:03] Speaker 05:
But again, the collective bargaining agreement doesn't say anything about the consequence of not following that process.

[00:25:13] Speaker 05:
And we have examples from this court, the Brown case in fact, where on a timeliness issue, it was found that the agency did not

[00:25:22] Speaker 05:
necessarily comply with all of their procedural processes, but at the end of the day none of that affected the outcome or the substantial rights of the parties and the removal was still to proceed because it just was not it didn't raise rise to the level of a harmful error Is it the government's position that there is no limit on how long it can take in connection with this type of procedure under this agreement?

[00:25:47] Speaker 05:
the limit would be showing a prejudice that actually affects the process or affects the outcome of the process so it's not a certain amount of days or months no but it would be a showing that's you say absent here

[00:26:03] Speaker 05:
That's correct and the disagreement here is Mr. Miller is pointing to a timeliness provision actually with respect to a disciplinary action and that's necessarily going to be interpreted differently than the timeliness provision that would apply to a removal action because that does take so much more time to effectuate and the consequences are just so much higher and I think as

[00:26:26] Speaker 05:
Your Honor alluded to, we want the agency to take its time and to make sure a complete investigation is conducted and that due consideration in regard is given to these issues before a decision is made.

[00:26:42] Speaker 04:
And prejudice would be what?

[00:26:44] Speaker 04:
I mean, the kind of thing would be prejudice is if the witnesses take so long so witnesses could die or not be available.

[00:26:50] Speaker 04:
Correct.

[00:26:51] Speaker 05:
Or there's evidence that is no longer available or in some way the appellant is not able to appropriately respond to the charges against them or to participate in maybe the arbitration that would.

[00:27:05] Speaker 04:
Can I take you back just a few minutes?

[00:27:07] Speaker 04:
You were citing

[00:27:09] Speaker 04:
of the Blythe testimony.

[00:27:12] Speaker 04:
And I didn't see that cited in red.

[00:27:14] Speaker 04:
So do you have an appendix site for that for where we would end up?

[00:27:17] Speaker 04:
Sure.

[00:27:18] Speaker 05:
I do.

[00:27:18] Speaker 05:
And her testimony begins in appendix 264.

[00:27:23] Speaker 05:
OK.

[00:27:23] Speaker 04:
I appreciate that.

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

[00:27:28] Speaker 05:
And so if there are no further questions from the court, we respectfully request that this appeal be dismissed or in the alternative that the decision of the arbitrator be affirmed.

[00:27:40] Speaker 02:
Thank you.

[00:27:42] Speaker 02:
Any more questions for Ms.

[00:27:43] Speaker 02:
Johnson?

[00:27:43] Speaker 02:
No, thank you.

[00:27:44] Speaker 00:
No, thank you.

[00:27:46] Speaker 02:
OK.

[00:27:46] Speaker 02:
Thank you, counsel.

[00:27:49] Speaker 02:
Mr. Miller, when you're ready.

[00:27:51] Speaker 01:
Thank you, Your Honor.

[00:27:55] Speaker 01:
No, and unless the Court has any further questions, I'd be happy to concede the remaining time.

[00:28:04] Speaker 01:
I think we made our arguments here.

[00:28:08] Speaker 02:
Any questions for Mr. Miller?

[00:28:10] Speaker 00:
I have none.

[00:28:12] Speaker 04:
No.

[00:28:12] Speaker 04:
But just to reiterate that you indicated that your client was ready, willing, and able to file a motion to join.

[00:28:21] Speaker 01:
That is correct, Your Honor.

[00:28:28] Speaker 02:
OK.

[00:28:28] Speaker 02:
All right.

[00:28:28] Speaker 02:
Thank you.

[00:28:29] Speaker 02:
Thanks to both counsels.

[00:28:30] Speaker 02:
The case is taken under submission.