[00:00:00] Speaker 02: Number 211579 Johnson versus Department of the Air Force. [00:00:07] Speaker 02: Ms. [00:00:07] Speaker 02: Martinez, please begin when you're ready. [00:00:10] Speaker 01: Thank you. [00:00:11] Speaker 01: May it please the court. [00:00:13] Speaker 01: I'd like to thank the court for the opportunity to present this appeal today for Jacob Johnson from an arbitrator's decision to uphold the Air Force's decision to remove him from his federal employment as a firefighter at Dyess Air Force Base. [00:00:29] Speaker 01: based upon a sole charge that he tested positive for oxycodone, oxymorphone, without a valid medical reason. [00:00:37] Speaker 01: Today I'm going to focus my argument on the agency's substantive and procedural due process violations, then also the agency's failure to follow its own procedures, failure to [00:00:51] Speaker 01: properly apply the Douglas Factors and also failure to demonstrate that there was a nexus between his off-duty conduct and his ability to complete the agency mission. [00:01:04] Speaker 01: First and foremost, Mr. Johnson is a civil servant and a federal employee, so he has a property interest in his continued employment [00:01:17] Speaker 01: as a federal employee and can't be dismissed except for just cause. [00:01:24] Speaker 01: First went to 5 USC 7512. [00:01:28] Speaker 02: Since there are a number of things going on, can I just focus you at least what I come into the argument focusing on is the argument about ex-party communications with [00:01:40] Speaker 02: Mr. Fletcher's wife and brother-in-law. [00:01:44] Speaker 02: Can you address that and ultimately if you can make sure to talk about why that evidence of which he did not have notice before Mr. Fletcher made his decision is something other than cumulative? [00:02:08] Speaker 01: Yes. [00:02:10] Speaker 01: Yes, basically in his testimony for the first time, the deciding official revealed that he had relied on information and communications from his spouse who was a nurse and from his brother-in-law who is a nurse practitioner. [00:02:33] Speaker 01: Basically, he said that those were his main advisors and the main people that he looked to and trusted to provide him with advice and information. [00:02:44] Speaker 01: These are individuals who are not employees of the Department of Defense or the Air Force. [00:02:53] Speaker 01: And by relying on advice and information from these individuals and not providing that information, [00:03:03] Speaker 01: or advice to Mr. Johnson, that information severely prejudiced the ultimate decision of deciding official. [00:03:16] Speaker 02: Can I just ask? [00:03:18] Speaker 02: Go ahead. [00:03:21] Speaker 00: What new information, though, did he receive in those communications? [00:03:25] Speaker 00: Just following up on my colleague's question. [00:03:27] Speaker 01: Well, the new information, we're not really sure what new information he received. [00:03:32] Speaker 01: What he testified about was that he spoke to his wife, who's a nurse, and he spoke to his brother-in-law about whether or not they believed that Mr. Johnson was being dishonest about accidentally taking his mother's pills in the pill pack. [00:03:55] Speaker 01: or, you know, whether or not what was the likelihood of the possibility of Mr. Johnson doing that. [00:04:06] Speaker 01: And I'm not sure what discussions they had, whether they were medical discussions regarding drug addiction or whether they were discussions regarding, you know, the likelihood of a patient accidentally taking medicine [00:04:22] Speaker 01: Basically, what Fletcher testified about was that he spoke to both his wife and his brother-in-law. [00:04:31] Speaker 01: And I believe his testimony was, you know, the chances of that happening were slim to none, I think, with his testimony. [00:04:41] Speaker 01: So I'm not sure specifically what he spoke about. [00:04:45] Speaker 01: And Mr. Johnson never really became aware of what information [00:04:51] Speaker 01: what research, what testimony that the deciding official Fletcher relied on from his wife or from his brother-in-law regarding, I guess, the medical possibility or just the possibility in general of Mr. Johnson accidentally ingesting his mother's pill on a one-time occasion. [00:05:17] Speaker 03: Ms. [00:05:17] Speaker 03: Martinez, this is Judge Brown. [00:05:20] Speaker 01: Yes. [00:05:20] Speaker 03: I'm looking at Mr. Fletcher, the deciding official testimony. [00:05:27] Speaker 03: He is talking about consulting his wife and brother-in-law. [00:05:37] Speaker 01: Yes. [00:05:37] Speaker 03: He says, quote, I just wanted to make sure I wasn't off. [00:05:42] Speaker 03: And then after speaking to them, they confirmed the likelihood of [00:05:48] Speaker 03: Innocent ingestion was from one to none. [00:05:51] Speaker 03: And so one way to interpret this is that the designing official had already reached his conclusions about this and believed that there wasn't an innocent ingestion of oxytocin. [00:06:13] Speaker 03: But nevertheless, he just wanted to do [00:06:18] Speaker 03: a last-second sanity check after he had reached his conclusion to, quote, make sure he wasn't off. [00:06:30] Speaker 03: Would that be something that would... How would that be fairly characterized as new information? [00:06:39] Speaker 01: Well, it would be characterized as new information because I've [00:06:44] Speaker 01: I know that that's one part of the testimony, but I believe that he also testified that the main person that he looked to for advice was his spouse, you know, I guess on making any sort of decision. [00:06:58] Speaker 01: And so we don't know exactly what, you know, we don't know exactly what came, what information and advice came from the spouse or came from the brother. [00:07:11] Speaker 01: I hear what you're saying that he says, you know, he just went, you know, he asked them and they confirmed, but I'm not sure that, I'm not sure how many conversations he had with his brother-in-law and with his wife. [00:07:27] Speaker 01: I'm not sure what came from those conversations. [00:07:29] Speaker 01: And I'm not sure that he had already made up his mind prior to speaking to both of those people. [00:07:39] Speaker 01: And I'm assuming that he spoke to the, I'm not sure when he spoke to him, if it was prior to the oral reply or following the oral reply. [00:07:49] Speaker 01: Because, you know, at some point during following the oral reply, he had requested a list of Mr. Johnson's medications and prescriptions. [00:08:00] Speaker 01: And I'm not sure what his verification process was or what his thought process was. [00:08:04] Speaker 01: That would be pure speculation. [00:08:07] Speaker 01: But my point is, [00:08:09] Speaker 01: I'm not sure whether or not he'd made up his mind and whether or not speaking to his spouse or his brother-in-law was a turning point or provided some additional information that, you know, sort of tipped the scales toward his decision to terminate Mr. Johnson. [00:08:31] Speaker 03: Well, I guess the concern I have a little bit is that we're at a point now [00:08:37] Speaker 03: where you and us, the court, are speculating as to what really happened. [00:08:44] Speaker 03: And as I understand it, these questions you're raising now are not questions you explored with him during the hearing, is that right? [00:08:55] Speaker 03: Correct. [00:08:58] Speaker 03: Did you make any requests to depose the wife or the brother-in-law or anything like that? [00:09:06] Speaker 01: I did not, Your Honor, because I did not. [00:09:17] Speaker 03: Were you prevented from doing that? [00:09:24] Speaker 01: I'm not sure the answer to that question. [00:09:26] Speaker 01: The arbitration, the information regarding the wife and the brother-in-law [00:09:35] Speaker 01: uncovered at the arbitration, and that was brought forth to the arbitrator, the ex parte communications. [00:09:44] Speaker 01: I don't know that following the, I don't know that I would have been able to depose the wife and the brother-in-law following the close of the arbitration, legally. [00:10:01] Speaker 02: This is Judge Taranto. [00:10:03] Speaker 02: What do you think that the, [00:10:05] Speaker 02: legal standard is when we are in the situation where we essentially have, what, eight or so lines of testimony making, to look at which has language that leaves pretty unclear what [00:10:33] Speaker 02: the relevant questions, what Mr. Fletcher was thinking before he had the conversations, how many conversations, what the substance of the conversation were, et cetera. [00:10:45] Speaker 02: What, if anything, can you point us to identify what legal standard in the face of uncertainty governs whether this need somehow to be redone? [00:11:05] Speaker 01: I mean, basically, I mean, we're looking at, you know, whether or not, well, first off, Mr. Johnson was never charged with lack of candor. [00:11:18] Speaker 01: Lack of candor was never brought up in his charges at any point up until the arbitration. [00:11:24] Speaker 01: So Mr. Johnson was never even given the opportunity to respond to allegations of lack of candor. [00:11:32] Speaker 01: or falsification. [00:11:33] Speaker 02: I know that this seems to me to be changing the subject, but it is very much, that's okay, one of the central subjects of your brief. [00:11:44] Speaker 02: So I guess I'm having some trouble and maybe you can help me understand. [00:11:48] Speaker 02: What daylight is there between talking about lack of candor [00:11:54] Speaker 02: on one hand, and on the other, you gave me an account, an accidental ingestion account, and I need to decide whether to believe that or not. [00:12:04] Speaker 02: He knew that that was, in fact, the issue, because there was no dispute that he ingested the medication. [00:12:14] Speaker 02: He gave an account that said it was accidental, and the entire question on the underlying charge, not on the penalty, but on the underlying charge was, [00:12:24] Speaker 02: Is the decision maker going to believe him or not? [00:12:29] Speaker 02: I'm having trouble seeing what the difference is in this case between lack of candor and what he was clearly on notice of as the charge. [00:12:41] Speaker 01: Well, the difference here would be the application of the penalty. [00:12:45] Speaker 01: So just a pure accidental ingestion of, [00:12:52] Speaker 01: of an illicit drug or a drug for which someone does not have a prescription would not yield a penalty of automatic termination. [00:13:02] Speaker 02: Right, but the underlying fact was whether the decision maker was going to believe the account of accidental ingestion. [00:13:14] Speaker 02: Whatever use then the decision maker was going to make of his conclusion on that. [00:13:22] Speaker 02: I don't believe him and that affects both the charge and the penalty. [00:13:28] Speaker 02: So I'm not sure what he didn't have notice of. [00:13:35] Speaker 01: Well, if you would allow me to respond. [00:13:39] Speaker 02: Please. [00:13:41] Speaker 01: Well, basically he didn't have notice [00:13:44] Speaker 01: ever that he was not believed. [00:13:47] Speaker 01: So Mr. Johnson went into the arbitration and went into this case thinking that he just needed to explain the fact that he had taken it and that there was a presumption that [00:14:02] Speaker 01: his superiors would believe that it was a one-time accident and something that would yield a lesser penalty as opposed to a lack of candor, which yields a termination penalty almost, you know, right off the bat. [00:14:18] Speaker 01: And so I think there was an assumption that he was an honest person. [00:14:23] Speaker 01: He was a good employee. [00:14:26] Speaker 01: He was up for a promotion and that his superiors would [00:14:30] Speaker 01: would trust him to be an honest individual. [00:14:32] Speaker 01: Why would they believe that he was lying? [00:14:35] Speaker 00: Is it your position that he was removed for only lack of candor or both lack of candor and drug use? [00:14:43] Speaker 01: I believe he was removed for lack of candor only, not the drug use, because if the Air Force and their testimony that says that if it just would have been drug use, [00:14:54] Speaker 01: We would have offered him assistance. [00:14:57] Speaker 01: We would have offered him the address program. [00:15:07] Speaker 02: Does the panel have any further questions at the moment? [00:15:11] Speaker 02: Okay, hearing none. [00:15:13] Speaker 02: We will restore your, I think you reserved two minutes of rebuttal time. [00:15:19] Speaker 02: Yes, thank you. [00:15:20] Speaker 02: And we will hear from Mr. Jordan, I think. [00:15:25] Speaker 04: Yes. [00:15:26] Speaker 04: Thank you, Court. [00:15:27] Speaker 04: May it please the Court. [00:15:28] Speaker 04: Petitioner Jacob Johnson brings this appeal challenging the decision of arbitrator Thomas Cipolla, which found that the U.S. [00:15:34] Speaker 04: Air Force's decision to remove Mr. Johnson from his position as a civilian firefighter followed proper procedures, was rational, and backed by substantial evidence. [00:15:43] Speaker 04: Mr. Johnson was removed from his position because he tested positive for an illicit substance, oxycodone, during a routine random drug test. [00:15:50] Speaker 04: Mr. Johnson's is not a dispute that he ingested oxycodone or that the drug test result was flawed or otherwise an error. [00:15:57] Speaker 04: Mr. Johnson's sole defense offered before the agency and the arbitrator is that he innocently or accidentally ingested his mother's oxycodone pill in a one-time mix-up. [00:16:07] Speaker 04: Mr. Johnson's various arguments challenging the agency and arbitrator's holdings can all be reduced to Mr. Johnson's disagreement with the agency's failure to credit his innocent ingestion theory. [00:16:17] Speaker 04: However, it is not the law. [00:16:18] Speaker 04: that an agency's failure to credit the uncorroborated explanation of... This is Judge Shannon speaking. [00:16:23] Speaker 03: Hello? [00:16:24] Speaker 03: Yes. [00:16:25] Speaker 03: I'm sorry to cut you off, but I have a question. [00:16:29] Speaker 03: Again, it's about the ex parte communications with the wife and the brother-in-law. [00:16:35] Speaker 03: If we were to conclude that that was, in fact, new information, new material information, and therefore due process violation, [00:16:48] Speaker 03: What would be the result of that? [00:16:50] Speaker 03: Would this case have to go all the way back down to have a new deciding official consider the charge? [00:17:03] Speaker 04: Thank you, Your Honor. [00:17:04] Speaker 04: So I think that the testimony you pointed to earlier, I think conveys that this was, quote, confirming information and under other precedent. [00:17:12] Speaker 03: Well, I understand that's your argument. [00:17:14] Speaker 03: And of course, I read your brief and saw all that. [00:17:18] Speaker 03: understand what would be the consequences if we disagreed with you. [00:17:22] Speaker 03: Sure. [00:17:22] Speaker 04: So I think, you know, that is one point, but under the stone versus FDA IC analysis, there are two other considerations. [00:17:30] Speaker 02: I'm sorry. [00:17:30] Speaker 02: I'm sorry. [00:17:31] Speaker 02: This is, this is, this is just Toronto. [00:17:33] Speaker 02: You have no twice not answered the question assume for purposes of this question that we think there's a due process violation. [00:17:40] Speaker 02: What is the remedy? [00:17:42] Speaker 04: Sorry, I misunderstood. [00:17:44] Speaker 04: I thought it was just talking about the cumulative nature. [00:17:48] Speaker 04: The remedy could be to remand it back and have other consideration. [00:17:55] Speaker 04: But what I was trying to convey is that even if it is considered cumulative, that's only one of the three. [00:18:00] Speaker 03: I'm sorry, sir. [00:18:01] Speaker 03: Remand it back where to do what? [00:18:07] Speaker 04: So I think... [00:18:11] Speaker 04: under another arbitration could occur, I'm not entirely sure in terms of what that would be. [00:18:21] Speaker 03: I think, you know, wouldn't there need to be a deciding official who considered this case without those ex parte communications? [00:18:42] Speaker 04: remanded back and there was consideration by another deciding official that that might be something that the arbitrator, another arbitrator or the MSPB could decide. [00:18:58] Speaker 04: To be honest, I have not thought through exactly what the exact permutations of what that would be if that was the decision. [00:19:07] Speaker 04: But, you know, I think assuming that it is a due process violation and, you know, as we contend in our brief, you know, the cumulative aspect is one aspect of the stone factors and assuming after balancing all of them, it is decided there's a due process violation, I think some sort of remand of some sort would be warranted perhaps to another deciding official who would not have that or for there to be another arbitration in which those were [00:19:36] Speaker 04: presented, but as we state in our brief, we do not believe that this represents a due process. [00:19:42] Speaker 02: This is just trying to, I want to actually continue on this remedy question. [00:19:48] Speaker 02: So in prior cases involving due process problems or even other kinds of procedural [00:19:58] Speaker 02: problems where it's perfectly clear that the deciding official cannot any longer be [00:20:07] Speaker 02: the decision maker, or that a new deciding official's decision is required, is the standard remedy to say the removal is reversed, job is back, back pay is awarded, and if you want to now initiate a new removal, go ahead, but that doesn't [00:20:32] Speaker 02: But the removal until now has been reversed and there is a reinstatement with back pay until such time as there is a new removal. [00:20:46] Speaker 02: I want to understand what the ordinary course remedy is when there is a tainted removal decision. [00:21:02] Speaker 04: Understood this was not something that we had a brief that could potentially be a potential remedy. [00:21:11] Speaker 04: I can't. [00:21:12] Speaker 04: I'm not sure if I would. [00:21:15] Speaker 04: I don't know if I can speak to whether that's an ordinary course, the normal. [00:21:18] Speaker 04: Remedy that can be considered, but based off of what you told me, that sounds like something the court can consider, assuming it finds that this represents a due process violation for the reasons we contend is not. [00:21:39] Speaker 02: So on that question, finally, to the merits of the due process question, [00:21:47] Speaker 02: Why do you think that this seven or eight lines of testimony are not a basis for saying this has to be redone? [00:22:00] Speaker 02: As far as we can tell, Mr. Fletcher went from a state of uncertainty to certainty. [00:22:11] Speaker 02: We're not quite sure how uncertain he was, but from uncertainty to certainty, and he did it on the basis [00:22:17] Speaker 02: of evidence that he obviously considered important in making that shift from uncertainty to certainty, citing their medical credentials. [00:22:35] Speaker 02: Why is that not enough to say that there was outside communication that mattered in the evidence or that, yes, that mattered in the evidence or may well have mattered in the evidence of which Mr. Johnson was not aware, made aware before the decision? [00:22:57] Speaker 04: Thank you, Your Honor. [00:22:58] Speaker 04: So I think that testimony on supplemental page 19, where Lieutenant Colonel Fletcher says, quote, I just wanted to make sure I wasn't off. [00:23:08] Speaker 04: And then he says that they, quote, confirmed the likelihood. [00:23:12] Speaker 04: And so under the stone versus FDIC factors, there's three factors. [00:23:16] Speaker 04: One, whether it's cumulative, whether the employee knew of the error, had a chance to respond to it, and then the undue pressure. [00:23:22] Speaker 04: And so I think, you know, [00:23:24] Speaker 04: looking at the second factor, you know, the fact that it is explicitly confirmatory. [00:23:30] Speaker 04: He already knew that he did not believe this, the proposing official, Mr. Raynard. [00:23:36] Speaker 02: I'm sorry. [00:23:37] Speaker 02: I'm sorry. [00:23:37] Speaker 02: I want to interrupt there. [00:23:39] Speaker 02: It seems to me that there's a intuitive difference between [00:23:44] Speaker 02: cumulative and confirmatory. [00:23:49] Speaker 02: If I have an intuition about something but I'm not sure and that's the reason I go and ask somebody else who I think has some insight into this, what they think about this and that confirms my intuition, it can't be, can it, that that scenario is one in which that evidence doesn't matter. [00:24:14] Speaker 04: So I think two decisions of this court are on point here. [00:24:18] Speaker 04: One is the blank versus Department of Army case, 247 Federal Third, 1225. [00:24:26] Speaker 04: And that case says that, quote, when a deciding official initiates ex parte communication that only, quote, [00:24:32] Speaker 04: confirms or clarifies information already contained in the record, there's new process violations. [00:24:37] Speaker 04: Similarly, the Spencer v. OPM 95 Federal Appendix 352 says information contained in the agency statement of the case simply confirms information already in the record. [00:24:49] Speaker 04: Now, I do acknowledge that if you have five pieces of evidence and you have a sixth piece of evidence, that, you know, it certainly, you know, can make a prior [00:25:01] Speaker 04: position more robust than it was before. [00:25:05] Speaker 04: So it's similar to, you know, inciting my brief if I have a string site. [00:25:09] Speaker 02: So can you tell me what evidence did the slim to none commentary of Lieutenant Colonel Fletcher's wife and brother-in-law confirm? [00:25:25] Speaker 04: As this court previously indicated, the underlying inquiry here is whether or not the agency deciding official and then the arbitrator believe the innocent ingestion theory. [00:25:36] Speaker 04: If they did not believe that, then the idea that there's no nexus falls apart and the idea that the punishment was unreasonable falls apart. [00:25:44] Speaker 04: And so, Lieutenant Colonel Fletcher, the deciding official, had to decide, do I credit [00:25:52] Speaker 04: this, and credit is apart from this dishonesty, lack of candor part, which you can talk about later, but does, is this explanation credible? [00:26:00] Speaker 04: And he looked at various factors, considered the, you know, the facial implausibility of this being a one-time incident of mixing up his mother's pills on the same day he happened to have a drug test, and then an arbitration confirmed that the pill sizes were different. [00:26:14] Speaker 04: and all these other evidence that further confirm that of the arbitration. [00:26:18] Speaker 04: But the deciding official looked at it and said, this does not sound right. [00:26:21] Speaker 04: The proposing official also didn't believe that. [00:26:23] Speaker 04: And so, you know, simply the way this reads is sort of, you know, sort of dinner time. [00:26:28] Speaker 04: Oh, I have this dinner time talk where he just sort of, you know, raises this and she sort of just confirms this underlying feeling that he already had. [00:26:37] Speaker 04: And so given that, I think [00:26:39] Speaker 03: What if, from Judge Chen speaking, what if his testimony was stated more like, I was leaning towards not finding the innocent ingestion claim credible. [00:26:57] Speaker 03: I was leaning against agreeing with Johnson on that. [00:27:03] Speaker 03: But I wasn't completely sure of it, and I happened to [00:27:09] Speaker 03: know all of these medical professionals in my family, my wife and my brother-in-law. [00:27:15] Speaker 03: And because they deal with drug administration, drug treatment all the time, and lots of patients that need medication. [00:27:26] Speaker 03: And I wanted to check with what they thought. [00:27:30] Speaker 03: And they both told me that it didn't make any sense. [00:27:34] Speaker 03: And so that really [00:27:38] Speaker 03: put the nail in the coffin for Mr. Johnson, because they are experts, unlike me. [00:27:47] Speaker 03: And so I felt a little uncertain about it. [00:27:52] Speaker 03: If that's what he had said, would that be new information in your view, in the government's view? [00:28:01] Speaker 04: So if that was the case where he was leaning in one direction, I still think that [00:28:08] Speaker 04: that would be confirmatory information. [00:28:11] Speaker 04: Well, first of all, I think that is a hypothetical. [00:28:14] Speaker 04: The record is all we have. [00:28:16] Speaker 04: And based off of that, there's no indication other than opposing counsel's speculation, perhaps, to indicate that that's the fact. [00:28:23] Speaker 04: The testimony we have that which you could have potentially elicited through further examination might have shown that, but it didn't. [00:28:30] Speaker 03: No, I understand. [00:28:31] Speaker 03: You've got to go with my hypothetical. [00:28:33] Speaker 03: My hypothetical is... [00:28:35] Speaker 03: that the deciding official was leaning one way, but he still had, he had not come to rest. [00:28:41] Speaker 03: He had not come to rest. [00:28:43] Speaker 03: He had some lingering doubts. [00:28:45] Speaker 03: He had some uncertainty. [00:28:46] Speaker 03: And so he wanted to consult these medical professionals and his family. [00:28:54] Speaker 03: So that was certainly... Because he felt like they're much more experienced with this particular issue, and he could trust their judgment on this. [00:29:06] Speaker 04: that would certainly confirm his initial inclination. [00:29:11] Speaker 04: If it was elicited that he was, you know, leaning towards that, that would imply that he was favored to contend that his... Okay, well, can you think of a hypothetical where the government would find that it is, in fact, new information to consult medical professionals? [00:29:30] Speaker 04: I think one example was if he was inclined to [00:29:36] Speaker 04: completely credit his accidental ingestion theory and the consultation of his wife and brother-in-law upended that understanding and caused him to, you know, essentially introduce a new consideration that, you know, then caused the penalty. [00:29:56] Speaker 03: But I think what the record shows is that, you know... So new information has to be... In your view, new information has to be [00:30:06] Speaker 03: somehow completely decisive information that turns the tide on the inquiry? [00:30:18] Speaker 04: Yes, John. [00:30:21] Speaker 03: Where does it say that in the case form? [00:30:26] Speaker 04: So I think in looking at whether or not something is cumulative or confirmatory or not, I think if it... If I may finish my point, I think if it... [00:30:35] Speaker 04: changes the nature of the inquiry. [00:30:38] Speaker 04: It ceases to be simply confirmatory or cumulative and the nature of that information is substantively different as a result of that. [00:30:47] Speaker 04: And unless there are further questions, I ask the court to affirm the arbitrator's decision. [00:30:51] Speaker 00: Can I ask one quick question? [00:30:53] Speaker 00: Can we conclude that family members have great influence over one another and therefore can exert undue pressure under stone? [00:31:01] Speaker 00: Just wanted to get to that factor too before you sit down. [00:31:05] Speaker 04: Yes, thank you, Your Honor. [00:31:06] Speaker 04: I think where that comes into play is whether or not the wife and brother-in-law had an interest in Mr. Johnson's case. [00:31:18] Speaker 04: And there's no indication that they had any relationship with him or even cared about the outcome of this. [00:31:26] Speaker 04: So they would not [00:31:28] Speaker 04: you know, exercise, I believe the stone says, undue pressure upon his side official to rule in a quote, particular manner. [00:31:36] Speaker 04: There's no evidence that they had any interest whatsoever regarding whether Mr. Johnson stayed in the service or did not. [00:31:43] Speaker 02: You don't think that if they said, that is preposterous that he might feel some undue pressure not to come back the next night and say, you know what I did? [00:31:53] Speaker 02: I gave the guy a pass. [00:31:54] Speaker 02: I believed him that they might say, are you crazy? [00:32:02] Speaker 02: Maybe this is a good reason for keeping the family out of your judicial decisions. [00:32:09] Speaker 04: Just so that I can understand the hypothetical you proposed, when you say preposterous, I think in terms of whether or not it, you know, whether or not this represents an outrageous action on Mr. Johnson's part, I think... No, on Mr. Fletcher's part. [00:32:33] Speaker 02: Right. [00:32:34] Speaker 02: He, he consulted them. [00:32:36] Speaker 02: They say this, that the scenario that Mr. Johnson has proposed is, is preposterous. [00:32:42] Speaker 02: Um, couldn't, couldn't possibly be true. [00:32:46] Speaker 02: He then goes back to decide, actually, I find it pretty plausible. [00:32:51] Speaker 02: You don't think he's under some pressure not to go back and answer the question. [00:32:55] Speaker 02: How did you decide the case and that, that he doesn't want to say, um, [00:33:00] Speaker 02: I disagreed with you. [00:33:02] Speaker 02: I actually thought that the accidental ingestion account was plausible and I credited it. [00:33:13] Speaker 04: In your hypothetical, if the wife and brother-in-law had vociferously advocated for [00:33:27] Speaker 04: you know, not, you know, vociferously advocated for a complete, you know, assigning a degree [00:33:39] Speaker 04: of disapproval or a degree of sort of a very strong reaction against that, I think that might come closer to ruling in a particular manner. [00:33:53] Speaker 04: But based off of the record evidence we have, it appears to just be a sort of sanity check on his already formed belief. [00:34:00] Speaker 04: And they simply said, yeah, that sounds right. [00:34:02] Speaker 04: And I think that's how the record reads. [00:34:04] Speaker 04: So I think in the hypotheticals that the court has posed today, I think that would certainly [00:34:09] Speaker 04: you know, make the decision a little bit more difficult and I can see that's where the court is grappling with. [00:34:15] Speaker 04: But with the record we have, I think it clearly fits under the stone factors as something that would not represent a due process violation and is why the court should affirm the arbitrator's decision on this matter. [00:34:28] Speaker 02: I do actually. [00:34:31] Speaker 02: I think the question arose earlier about whether Ms. [00:34:37] Speaker 02: Martinez could have [00:34:40] Speaker 02: secured additional discovery, maybe depositions of Lieutenant Colonel Fletcher's wife and brother-in-law to nail down what was said and therefore to assess whether the potential of [00:35:00] Speaker 02: what it was that Lieutenant Colonel Fletcher both heard and might have felt in terms of pressure. [00:35:08] Speaker 02: Do you have a view about whether that kind of discovery would in fact have been available during the arbitration? [00:35:20] Speaker 04: So the general approach that the deciding official and the arbitrator took was to be very accommodative of [00:35:28] Speaker 04: petitioners attempts to secure deadlines and other sorts of things. [00:35:32] Speaker 04: So if petitioner had asked for a stay on the proceedings while they deposed or gathered more information on this, I have no reason to doubt that wouldn't be granted. [00:35:44] Speaker 04: I'm unsure of any legal basis where it would be unable to depose those individuals outside of them being outside of subpoena power, which I have no reason to suspect that would be. [00:35:55] Speaker 04: So, I don't know if that would be the case and I have no reason to suspect that a deposition would be disallowed or otherwise prohibited. [00:36:03] Speaker 04: I have no reason to believe that. [00:36:07] Speaker 02: Okay. [00:36:08] Speaker 02: Unless there are further questions from the panel, thank you for your argument and we will have rebuttal time, I think two minutes, but let's say three minutes for Ms. [00:36:22] Speaker 02: Martinez. [00:36:24] Speaker 01: Okay, thank you. [00:36:30] Speaker 01: Basically, the panel had asked what the remedy should be. [00:36:35] Speaker 01: And if you look at stone, the remedy for ex parte, if there's a due process violation of ex parte communications, the remedy is to reverse, to wholly reverse the agency's decision to [00:36:54] Speaker 01: to terminate Mr. Johnson. [00:36:56] Speaker 01: Additionally, also, there is some language in case file regarding the agency's, I mean, this court's ability to go ahead and just remand it back, I guess, for the agency to issue a new proposal. [00:37:13] Speaker 02: And what happens to the period before the new proposal between the earlier removal and the new proposal? [00:37:24] Speaker 01: I mean, I think that Mr. Johnson would be reinstated, you know, with back pay during that period of time. [00:37:34] Speaker 01: So in theory, if the agency's decision to remove is reversed, then he should be reinstated with back pay. [00:37:51] Speaker 01: And basically, with regard to the judge's question regarding the undue pressure that Colonel Fletcher's wife may have put on him, Colonel Fletcher did testify when asking who his consultants were. [00:38:06] Speaker 01: He said, well, I look to my main consultant, who is my wife. [00:38:12] Speaker 01: And so I do believe that if you look at the Anderson's test, you know, the Anderson subjective test, which is also listed in Stone versus FDIC, [00:38:22] Speaker 01: that he was unduly influenced by his wife, not only because she was a nurse, but because he did announce that that was his main consultant that he looked to. [00:38:33] Speaker 01: And this is somebody who is outside the agency and does, you know, certainly family does exert undue influence, especially if Mr. Fletcher is testifying that this is his main consultant. [00:38:47] Speaker 01: You know, clearly he is going to be influenced by, [00:38:52] Speaker 01: the statement of not only his wife but also of a medical professional and also, you know, his brother-in-law who I assume is his wife's brother, you know, and we do believe... This is Judge Chen. [00:39:06] Speaker 03: Could you respond to the government's citation to blank federal circuit opinion which seems to state that mere [00:39:17] Speaker 03: confirmatory information is not really getting to be new information. [00:39:24] Speaker 01: Well, I don't believe this is confirmatory information because, you know, first off, Colonel Fletcher never spoke to Mr. Johnson. [00:39:32] Speaker 01: Not one time during the entire process did he speak to Mr. Johnson or ask what happened. [00:39:39] Speaker 01: And so I don't believe it was confirmatory. [00:39:41] Speaker 01: I believe that it was exploratory and investigatory. [00:39:44] Speaker 01: He was exploring the possibilities and options and investigating. [00:39:50] Speaker 02: But he, I'm sorry, he knew that what the, he had heard what Mr. Johnson's account was, right? [00:39:58] Speaker 02: The innocent, the accidental ingestion account. [00:40:01] Speaker 02: Is that right? [00:40:02] Speaker 02: I believe so. [00:40:04] Speaker 02: And that's what the issue was, whether an undisputed ingestion was accidental or not and he needed to decide whether the, and had he heard that the account was accidental because of mix up in his taking responsibility for arranging the medicines for his mother? [00:40:28] Speaker 01: I'm not sure if he had heard that. [00:40:31] Speaker 01: I mean, I'm not sure what he heard. [00:40:34] Speaker 01: If you look at Colonel Fletcher's testimony, it's very disjointed, and it seems like he didn't look at the Douglas Factors, and he basically just adopted what the proposing official, Renard, had stated. [00:40:52] Speaker 01: So I can confirm that he knew exactly what was going on, or he was just adopting whatever was in the Douglas Factors sheet that he reviewed. [00:41:07] Speaker 02: Okay. [00:41:08] Speaker 02: If there are no further questions, I think I heard the bell ending the rebuttal time and our thanks to both council and the cases submitted.