[00:00:05] Speaker 02:
May it please the court.

[00:00:07] Speaker 02:
The plain language of 5 USC Section E40117A defines a law enforcement officer for retirement purposes as an employee the duties of whose position are primarily the investigation, apprehension, or detention of individuals

[00:00:27] Speaker 02:
suspected or convicted of offenses against the criminal laws of the United States and are sufficiently rigorous that employment opportunities be limited to young and physically vigorous individuals.

[00:00:41] Speaker 02:
There is no dispute in this case that appellant petitioners satisfies the latter prom.

[00:00:48] Speaker 02:
So this case, from its inception,

[00:00:51] Speaker 02:
is about whether or not Mr. Clipp's duties, actual duties, what he did, satisfy that statute.

[00:01:01] Speaker 02:
From its inception, the statute has been to examine what the employee actually does.

[00:01:06] Speaker 01:
So what are we to look at the actual duties that were performed or the description of those duties in the different

[00:01:15] Speaker 01:
documents and sources.

[00:01:17] Speaker 02:
So the OPM three-pronged test guides us in that regard.

[00:01:23] Speaker 02:
The short answer is both.

[00:01:26] Speaker 02:
The OPM three-pronged test references, which is part of, it's referenced in the Watson case.

[00:01:34] Speaker 04:
We're not looking at the OPM three-part test.

[00:01:36] Speaker 04:
We have a decision, Crowley, which lays this all out.

[00:01:38] Speaker 04:
Isn't that providing the roadmap that we're supposed to follow here?

[00:01:43] Speaker 02:
In Crowley?

[00:01:46] Speaker 02:
I believe, Judge, the question really is more applicable in Davis, and in Ellis, and in Little, and not as much in the Crowley matter.

[00:02:03] Speaker 00:
Doesn't Crowley set forth a standard for us to consider?

[00:02:08] Speaker 00:
The standard for determining whether the Leo status, right?

[00:02:14] Speaker 00:
And you look at it, I believe, probably is the case that, for example, talks about how you look at the position itself, and then you also have to look at the actual duties performed by the appellant here.

[00:02:26] Speaker 02:
That's correct, all of which is to be evaluated.

[00:02:31] Speaker 02:
But in this case, the administrative judge

[00:02:35] Speaker 02:
gave an outsized amount of emphasis to the official position documents and minimized or marginalized the actual duties.

[00:02:45] Speaker 04:
OK, but you're not contending that the position documents here qualified him for Leo credit, right?

[00:02:51] Speaker 04:
Correct.

[00:02:52] Speaker 04:
Just the actual duties.

[00:02:53] Speaker 02:
Except to the extent, Your Honor, that if you were to look carefully at the JAT or the tool that is used in this case, what we'll commonly refer to as the position description, which is at appendix 58, if you strip out the supervisory duties and the managerial duties, the JAT actually refers specifically to the primary duties of a law enforcement officer.

[00:03:22] Speaker 04:
If you look at it closely... You can't seriously contend that the position description qualified him for primary lia, correct?

[00:03:33] Speaker 04:
Correct.

[00:03:33] Speaker 04:
So we're talking about the actual duties.

[00:03:35] Speaker 04:
Correct.

[00:03:37] Speaker 04:
Okay, so the AJ sort of seemed to mix up the position description and the actual duties.

[00:03:44] Speaker 02:
I agree.

[00:03:46] Speaker 02:
That's correct.

[00:03:48] Speaker 02:
In fact, the AJ actually mixed up the fact that the position was created as a supervisory position

[00:03:57] Speaker 02:
and morphed it into the position existed for a supervisory role, when in fact that's not at all what was going on in this case with Mr. Clip.

[00:04:08] Speaker 02:
Mr. Clip was not performing any supervisory or managerial duties whatsoever.

[00:04:13] Speaker 02:
His actual day-to-day duties were all law enforcement, 100%.

[00:04:18] Speaker 00:
Wasn't he also, if I remember correctly, he was also performing some duties of just kind of communicating and also kind of being a liaison between the different offices?

[00:04:30] Speaker 02:
To some extent, yes.

[00:04:32] Speaker 02:
I mean, in order to work with other law enforcement agencies, as Mr. Clip did, so interfacing with the FBI, running investigations with JTTF,

[00:04:42] Speaker 02:
interfacing with TSA's Office of Inspection, it necessarily requires him to communicate with and liaise with other law enforcement entities.

[00:04:52] Speaker 01:
But those are not legal functions, are they?

[00:04:56] Speaker 02:
Liaising alone is not, that's correct.

[00:04:59] Speaker 01:
or interfacing?

[00:05:01] Speaker 02:
Conducting surveillance.

[00:05:03] Speaker 02:
If you look at what he was actually doing, running investigations, interrogating subjects and witnesses, he was conducting surveillance in dangerous areas.

[00:05:14] Speaker 00:
In a circumstance like this, where does the trust that the court could apply?

[00:05:19] Speaker 00:
In looking at different facts to look at the actual duties, is it the actual duties have to be of a type that would be considered

[00:05:26] Speaker 02:
Leo duties those have to be more than 50% of the time or how do we how do we evaluate that or how should it have been evaluated below that's correct judge what is important in this case is that the judge gave outsized

[00:05:46] Speaker 02:
attention to the official position described in the description and ignore, for example, the Bingaman factors, which aren't in and of themselves dispositive, but they are important factors to weigh.

[00:06:03] Speaker 00:
And the Bingaman factors are the factors that relate to someone's actual duties?

[00:06:08] Speaker 00:
Yes.

[00:06:09] Speaker 02:
That's correct.

[00:06:11] Speaker 02:
has frequent direct contact with criminal suspects, authorized to carry a firearm, interrogates witnesses and subjects, giving Miranda warnings when appropriate, works for long periods without a break, is on call 24 hours a day, and is required to maintain a level of physical fitness, all of which Mr. Cliff qualified for.

[00:06:33] Speaker 02:
The six factors really capture the essence of what Congress intended by the statute.

[00:06:41] Speaker 02:
So that was one thing that the court really fell short on, the AJ really fell short on.

[00:06:47] Speaker 02:
In fact, she mentions that he satisfied several factors.

[00:06:52] Speaker 02:
I believe that's in her decision at appendix 21.

[00:06:56] Speaker 02:
But does not articulate which factors he did and did not satisfy, although we disagree, we believe, and the record evidence shows that he did in fact satisfy those factors.

[00:07:15] Speaker 02:
Uh.

[00:07:17] Speaker 02:
If you look at a position-oriented approach and you look at the agency's evidence, the position description did not apply to him.

[00:07:27] Speaker 02:
Mr. Belcher's declaration violated FRE rule 701 and 702.

[00:07:32] Speaker 02:
It wasn't based on any personal knowledge.

[00:07:35] Speaker 02:
It was highly qualified.

[00:07:37] Speaker 02:
It did not apply.

[00:07:39] Speaker 02:
It is basically a post hoc justification for the agency's determination.

[00:07:47] Speaker 02:
The core roles and responsibilities document that the AJ relied upon wasn't issued until 2008, which is almost a year before Mr. Clip finished the position.

[00:08:01] Speaker 01:
It seems to me as if you're almost arguing that we should reconsider the weight that was

[00:08:11] Speaker 01:
given to these different pieces of evidence.

[00:08:13] Speaker 01:
For example, with the Belcher Declaration, you pretty much are arguing that it's irrelevant, right?

[00:08:23] Speaker 01:
Whereas you can look at the Belcher Declaration as being relevant as to describing what the title means and what the position, the title, the position, or what the job entails.

[00:08:36] Speaker 01:
And not necessarily what Mr. Clipp did.

[00:08:40] Speaker 01:
But that's relevant too, right?

[00:08:43] Speaker 01:
So we're dealing with a case of really, we look at whether there's substantial evidence that supports the determination.

[00:08:51] Speaker 01:
It seems to me that your argument, where you want us to put more weight in this basket instead of this one, doesn't address a substantial evidence standard of review that we have before us.

[00:09:05] Speaker 02:
Thank you for that question, Judge.

[00:09:06] Speaker 02:
We are not asking the court to reweigh the evidence.

[00:09:09] Speaker 02:
The board's decision rested on unsupported factual findings.

[00:09:14] Speaker 02:
Substantial evidence, for example, does not support the board's factual finding that when Mr. Clip was performing primary law enforcement duties, these situations were of an emergency, incidental, or temporary nature.

[00:09:28] Speaker 02:
That was the AJ's finding in Appendix 20.

[00:09:32] Speaker 02:
Have you found on 19 that it occupied 50% of his time?

[00:09:37] Speaker 02:
Exactly.

[00:09:38] Speaker 02:
uh... the aging also failed to apply the law the reasons for the position's existence not merely its creation are determined and this goes to your question uh... your honor the idea states that is noted in watson the board applies a position-oriented approach to determining enhanced retirement focusing on first-prong of the regulatory test uh... however in watson

[00:10:08] Speaker 02:
the MSPB properly determined whether the purpose for the position changed.

[00:10:16] Speaker 02:
That is, whether the purpose for the position's existence was different than the purpose for its creation.

[00:10:22] Speaker 02:
So here, unlike Watson, the basic reasons for the position's existence were different than what it was created for.

[00:10:33] Speaker 02:
Therefore, appellant should have been eligible.

[00:10:37] Speaker 02:
The AJ found that the reason for the appellant's AFSDLE position is to supervise investigators and to establish and maintain relationships with federal, state, and local law enforcement authorities on behalf of TSA.

[00:10:51] Speaker 02:
That's also in Appendix 20.

[00:10:53] Speaker 02:
So the judge misapplied Watson and its progeny.

[00:10:57] Speaker 02:
rendering a decision which was factually inaccurate and inconsistent with congressional intent.

[00:11:02] Speaker 02:
That is not only an abuse of discretion, but her decision is not based on substantial evidence.

[00:11:07] Speaker 02:
So we are not asking the court to simply reweigh the evidence.

[00:11:11] Speaker 02:
And I did want to reserve some time, Your Honors.

[00:11:14] Speaker 04:
OK.

[00:11:14] Speaker 04:
Let's see, Mr. Kerr.

[00:11:18] Speaker 04:
Kerr, how do you pronounce that?

[00:11:20] Speaker 04:
Kerr.

[00:11:24] Speaker 03:
Mr. Clip asserts that the Assistant Federal Security Director position, in which he was appointed in July of 2004, is a primary law enforcement position.

[00:11:34] Speaker 03:
He could have made this assertion when he challenges the TSA October 5, 2016 decision, but he didn't.

[00:11:41] Speaker 03:
When in 2019 he asked the TSA for the first time to consider whether this primary law enforcement position is a primary law enforcement position, the TSA said this is covered under our October 26 decision.

[00:11:55] Speaker 03:
and that no additional decision or determination is necessary.

[00:12:00] Speaker 03:
TSA's 26th decision states that the assistant federal security director for law enforcement is a secondary law enforcement position.

[00:12:09] Speaker 03:
The final decision that Mr. Cliff is attempting to challenge, therefore, is the October 26 decision.

[00:12:15] Speaker 03:
And the board did not have jurisdiction over TSA's refusal to take this up again in 2019.

[00:12:20] Speaker 00:
If we disagree with you on that, do you have an argument on the merits?

[00:12:25] Speaker 03:
Absolutely, Your Honor.

[00:12:27] Speaker 03:
If the board did have jurisdiction, the decision to uphold TSA's determination that Mr. Clipp's position is secondary law enforcement is supported by substantial evidence.

[00:12:36] Speaker 04:
You agree, don't you, that there are two separate inquiries here.

[00:12:40] Speaker 04:
The first one is about the position description, and the second one is about the actual duties.

[00:12:46] Speaker 04:
And they were clear in the opening argument that they're not relying on the position descriptions, which are seemingly a mess.

[00:12:53] Speaker 04:
It's not clear whether they're accurate or which ones are applicable.

[00:12:57] Speaker 04:
So they're saying, we've got to look at actual duties.

[00:13:01] Speaker 04:
The problem, it seems to me, is that the AJA here mixed up the two things.

[00:13:06] Speaker 04:
In turning to the question of actual duties, the AJA kept coming back to the position descriptions, which is not the right way to analyze it.

[00:13:16] Speaker 03:
Well, Your Honor, the government's reading of the administrative judge's opinion is that she's applying the position-oriented approach from Crowler, which really comes from Watson.

[00:13:30] Speaker 04:
Well, that's the problem.

[00:13:32] Speaker 04:
Because we've said in Crowley that that's not the sole test.

[00:13:36] Speaker 04:
That even if you can't satisfy the position description, which admittedly the employee here doesn't,

[00:13:46] Speaker 04:
you still have to go on and look at actual duties.

[00:13:48] Speaker 04:
So what the AJ should have done is analyze the actual duty evidence without regard to the position descriptions.

[00:13:56] Speaker 04:
But it seems to me that the AJ didn't do that.

[00:13:58] Speaker 04:
It's all mixed up.

[00:14:01] Speaker 04:
It's not separated.

[00:14:07] Speaker 03:
On Appendix 21.

[00:14:09] Speaker 03:
The administrative judge is looking at all the evidence, including the position description.

[00:14:16] Speaker 04:
Well, that's exactly the problem.

[00:14:18] Speaker 04:
He's mixing it up.

[00:14:19] Speaker 04:
And then on page 22, he says, although the counsel was supported, he was involved in investigating.

[00:14:26] Speaker 04:
He failed to establish that these were the primary duties of the position.

[00:14:32] Speaker 04:
or that the primary duties constituted basic reasons for the existence.

[00:14:37] Speaker 04:
But that's based on the position description documents, in part, in proceeding cases, and not just on actual duties.

[00:14:47] Speaker 03:
Well, Your Honor, the AJ also looked at the annual appraisals, which does contain Mr. Clipp's actual duties.

[00:15:00] Speaker 03:
And the judge looked at those as confirming what was in the description.

[00:15:07] Speaker 00:
Where do you see that in the opinion?

[00:15:08] Speaker 00:
I just want to know what you're pointing to.

[00:15:12] Speaker 00:
Because it seemed to me she discussed this at pages 20 through 22.

[00:15:27] Speaker 03:
Well, at the top of 21, the AJ is looking at the Belcher's declaration, position description, core roles and responsibility documents, and the performance appraisals.

[00:15:42] Speaker 03:
Exactly.

[00:15:42] Speaker 04:
The problem is mixing up the position description with the other stuff.

[00:15:46] Speaker 03:
Well, the only challenge that Mr. Clip makes to the position description is that it contains supervisory duties.

[00:15:54] Speaker 04:
That's irrelevant.

[00:15:55] Speaker 04:
We're past the position descriptions.

[00:15:58] Speaker 04:
The question is what the actual duties were.

[00:16:00] Speaker 04:
And the problem is that the A.J.

[00:16:03] Speaker 04:
didn't conduct a separate independent analysis of the actual duties separated from the position descriptions.

[00:16:13] Speaker 00:
Do you think that maybe later on that page where the AJ talks about crediting the appellant's argument, that is more something that you would rely on for saying she didn't look at just the position?

[00:16:28] Speaker 03:
Well, the AJ did credit the argument that Mr. Cliff never supervised.

[00:16:36] Speaker 03:
And went on to say that he did satisfy some of the Bingham factors.

[00:16:42] Speaker 03:
So AJ did look at the Bingham factors, but then concluded that the documents as a whole show that his primary duties were working with local law enforcement, were liaisoning with local law enforcement.

[00:17:00] Speaker 04:
That clearly tells us the first question is,

[00:17:04] Speaker 04:
rigourousness, physical rigourousness.

[00:17:08] Speaker 04:
And so where are the findings that in actual fact that the physical rigourousness requirement wasn't satisfied?

[00:17:17] Speaker 04:
We said in Crowley, that's the primary consideration.

[00:17:22] Speaker 03:
Well, Your Honor, the burden is on Mr. Cliff.

[00:17:26] Speaker 03:
And the AJ is saying he did not fulfill that burden.

[00:17:29] Speaker 03:
He did not show.

[00:17:31] Speaker 03:
that he is in a primary law enforcement role.

[00:17:34] Speaker 00:
Wait a minute.

[00:17:35] Speaker 00:
On page 22, the AJ says, appellant averred he was required to work long hours without a break, and that he was on call 24 hours a day.

[00:17:44] Speaker 00:
And then says, even if true, this is less probative.

[00:17:50] Speaker 00:
So it's crediting, actually, what he averred, right?

[00:17:55] Speaker 00:
So where are you saying that he didn't prove that he had rigorous work schedule?

[00:18:03] Speaker 03:
I didn't mean to suggest he didn't prove that he had a rigorous work schedule.

[00:18:06] Speaker 03:
He didn't satisfy his burden to show that his primary duties were the investigation and apprehension,

[00:18:15] Speaker 03:
of suspected criminals.

[00:18:18] Speaker 00:
Do you see that here somewhere, saying that given all of the things that he says he did in his position, that that's not enough?

[00:18:27] Speaker 00:
I'm having a hard time finding that on these pages.

[00:18:31] Speaker 03:
Well, in her review of the evidence, she discusses that one of Mr. Clipp's witnesses, Mr. Austin, said that he

[00:18:41] Speaker 03:
He admitted that the contact Mr. Clip had with criminal suspects was not frequent.

[00:18:46] Speaker 03:
He did have some contact.

[00:18:47] Speaker 03:
This is on page 19.

[00:18:49] Speaker 03:
But his contact was not frequent.

[00:18:52] Speaker 03:
And then the AJ also looked.

[00:18:53] Speaker 04:
Wait, wait, wait, wait.

[00:18:55] Speaker 04:
He said the appellate would pursue and arrest suspected criminals if there was need to do so.

[00:18:59] Speaker 04:
And he spent at least 50% of his time pursuing criminal investigations.

[00:19:04] Speaker 04:
That appears to be inconsistent with what was said on the next page.

[00:19:09] Speaker 04:
that these duties were only of an emergency, incidental, or temporary nature.

[00:19:13] Speaker 04:
50% is enough, isn't it?

[00:19:14] Speaker 03:
Well, that's Mr. Clipp's testimony.

[00:19:17] Speaker 03:
That's his declaration.

[00:19:18] Speaker 03:
The AJA did not credit that declaration.

[00:19:20] Speaker 03:
Where does she say she doesn't credit it?

[00:19:22] Speaker 03:
Well, it's implicit in her ruling that she's looking at the appraisals, the annual appraisals.

[00:19:29] Speaker 03:
She's looking at all the evidence, the declarations, and deciding that Mr. Clipp's primary duties

[00:19:38] Speaker 03:
relate to developing relationships with other law enforcement agencies.

[00:19:46] Speaker 00:
Can I ask you something?

[00:19:46] Speaker 00:
There's a sentence that's confusing to me.

[00:19:48] Speaker 00:
I want to know what you make of it.

[00:19:50] Speaker 00:
It's at the bottom of page 20.

[00:19:52] Speaker 00:
It says, even if the appellant frequently and regularly performed the duties of a primary covered position, or a primary legal, these situations were of an emergency incidental or temporary nature.

[00:20:06] Speaker 00:
What does that mean?

[00:20:08] Speaker 00:
The first clause seems to be inconsistent with the last.

[00:20:13] Speaker 03:
Here the AJ is looking at what the basic reason for the existence of the position is, which is the regulations, 5 CFR 842.802.

[00:20:25] Speaker 03:
The primary duty, the first prong, is the paramount influence or weight

[00:20:30] Speaker 00:
I thought that this sentence were like what he actually did, as opposed to the duties of his position.

[00:20:39] Speaker 00:
Do you disagree with that?

[00:20:42] Speaker 03:
Well, DAJ is talking about the duties, but saying that even to the extent he does.

[00:20:53] Speaker 03:
Sorry, Hunter, I lost the part in you.

[00:20:55] Speaker 03:
But even to the extent he does, he has

[00:21:00] Speaker 03:
investigative apprehension duties, even to the extent he does that, that's not his primary role.

[00:21:08] Speaker 00:
That's not why... That's the frequently and regularly part that has me confused.

[00:21:13] Speaker 04:
Yes.

[00:21:14] Speaker 04:
Well, put together with the fact that on the previous page, she recites testimony he spent 50% of his time doing.

[00:21:23] Speaker 03:
She also cites testimony that he did not have frequent contact with criminal suspects.

[00:21:28] Speaker 04:
Mr. Austin testified to that.

[00:21:31] Speaker 04:
That's usually why in remand cases, because the findings are inconsistent.

[00:21:41] Speaker 03:
Well, Your Honor, in this case, the AJ's findings is that his primary duty was to maintain relationships with other law enforcement authorities.

[00:21:55] Speaker 03:
And that's reflected in the

[00:21:58] Speaker 03:
the appraisals.

[00:22:00] Speaker 03:
And it's also reflected in the position description and the responsibilities description.

[00:22:06] Speaker 03:
Forget about it.

[00:22:07] Speaker 04:
The position description is not relevant.

[00:22:09] Speaker 04:
Where does she say that his actual duties didn't involve criminal investigations?

[00:22:18] Speaker 03:
Well, Your Honor, the AJ is referring to the performance appraisals, which are his appraisals of what he's actually doing.

[00:22:26] Speaker 03:
On the top of page,

[00:22:28] Speaker 03:
21.

[00:22:28] Speaker 03:
It's one of the pieces of evidence she's looking at.

[00:22:39] Speaker 04:
So he lumps them all together, the position description, the Belcher Declaration, the roles and responsibilities.

[00:22:47] Speaker 04:
And then she talks about the position was created for the purpose of it.

[00:22:51] Speaker 04:
I don't see a finding about what he actually did.

[00:22:59] Speaker 03:
The performance appraisals are what he actually did.

[00:23:10] Speaker 03:
That's right.

[00:23:11] Speaker 04:
But she lumps them all together.

[00:23:13] Speaker 04:
That's the continuing problem with this appendix.

[00:23:29] Speaker 03:
Ultimate finding is that Mr. Clip did not show that his position was most immediately involved with investigating, apprehending suspected criminals.

[00:23:45] Speaker 03:
And those findings are supported by substantial evidence that the court can look at these things, the evaluations, the appraisals separately,

[00:23:58] Speaker 03:
and used that as the substantial evidence to support the AJ's findings that he did not in his position description, doesn't say it, and he didn't in real time based on the- Where's the finding about his actual duties didn't involve?

[00:24:20] Speaker 03:
Well, the very next line, Your Honor, he says they, meaning all the documents that I understand

[00:24:28] Speaker 03:
criticizing that she looked at all the evidence matched together.

[00:24:32] Speaker 03:
But they support that his major duties involved building working relationships with other government agencies, and that his other duties, so she's no longer looking at what the position was designed for, but is now looking at his duties.

[00:24:48] Speaker 03:
Other duties included conducting administrative investigations, not criminal, heading VIP movements through airports.

[00:24:55] Speaker 03:
That's not related to primary law enforcement.

[00:24:58] Speaker 03:
and developing disaster preparedness management plans and other functions.

[00:25:03] Speaker 03:
And right there, she's talking about his duties.

[00:25:05] Speaker 03:
So she is looking at both what was the position created for, which is what she has to do under the regulations and this court's decisions in Crowley and Watson, and also what his duties were.

[00:25:21] Speaker 03:
I thus conclude that.

[00:25:24] Speaker 00:
So when you would say that, I'm sorry, you were about to read this.

[00:25:27] Speaker 00:
But I thus conclude that the basis and purpose of his position was not to investigate apprehended or detained suspected criminals.

[00:25:36] Speaker 00:
You think that sentence is based on what he actually did, or based on his position description?

[00:25:41] Speaker 03:
In the context of the sentence before, where she's talking about his major duties, I think what she means by the basis

[00:25:49] Speaker 03:
are the duties he's providing.

[00:25:53] Speaker 03:
He's actually in doing.

[00:25:59] Speaker 03:
Again, the sentence right before that, she's looking at his major duties and what they involve.

[00:26:05] Speaker 03:
And that's what she's basing her decision on, both what it was designed for

[00:26:12] Speaker 00:
What about how, when she's talking about this here, she's, or Lisa's already pointed out, but she's referring to the voucher declaration, the position description, the core roles and responsibility documents, and the appraisal, performance appraisals.

[00:26:26] Speaker 00:
So looking at, as a whole, all of those documents and making these conclusions, as opposed to looking separately out first, while I find that the position is not.

[00:26:36] Speaker 00:
The description of it is not going to make him a Leo.

[00:26:39] Speaker 00:
But the question is whether, even though he had this position description, he nonetheless was acting as a Leo.

[00:26:46] Speaker 03:
Well, perhaps inartfully, but what she's saying here is that they're consistent, that the position description doesn't get him there, and then also his major duties.

[00:26:59] Speaker 03:
And those major duties are in the performance appraisals.

[00:27:04] Speaker 03:
I mean, that's where it shows that he's handling VIP movements.

[00:27:11] Speaker 03:
That shows where he's developing disaster preparedness plans.

[00:27:14] Speaker 03:
And that's what she's referring to.

[00:27:16] Speaker 03:
And so again, saying that the basis and purpose

[00:27:23] Speaker 03:
is perhaps an artful, but she is looking at both aspects.

[00:27:27] Speaker 03:
What was the position designed to do?

[00:27:29] Speaker 03:
And what was he actually doing?

[00:27:31] Speaker 03:
Which, again, are these things that she lists here and that are reflected when you look in the record in the prezels.

[00:27:40] Speaker 04:
Before you sit down, one question.

[00:27:42] Speaker 04:
So assume hypothetically we were to decide that this needed to be remanded to have a redo.

[00:27:49] Speaker 04:
Is there any way to get this case together with the other one pending before the board?

[00:27:54] Speaker 04:
Because it seems sort of wasteful and inefficient to have them separated.

[00:28:02] Speaker 03:
Yeah, I agree it seems wasteful to have both of these cases covering the same time period and the same facts in these separate Cases I'm not sure if there is a way to consolidate the board.

[00:28:16] Speaker 03:
I don't know the board's practice

[00:28:19] Speaker 03:
I mean, one solution could be if Mr. Clip pulled his appeal to the board and then, I guess, brought it to this court with, if it does go back on remand, I assume it's going to come back up to this court and then combine them here.

[00:28:36] Speaker 03:
But I don't know the status of how the board could combine them with that one still pending.

[00:28:42] Speaker 04:
Where are we on the confirmations of board members?

[00:28:45] Speaker 04:
They still haven't been confirmed?

[00:28:46] Speaker 04:
I'm sorry.

[00:28:46] Speaker 04:
I don't know that either.

[00:28:49] Speaker 04:
All right, any other questions?

[00:28:53] Speaker 04:
No?

[00:28:53] Speaker 04:
OK, thank you.

[00:28:53] Speaker 04:
Thank you, Harris.

[00:28:55] Speaker 04:
Mr. Jacobs, do you have an answer to that question as to how it might be combined?

[00:29:07] Speaker 02:
I can answer the last question first, Judge, that there are now two members.

[00:29:12] Speaker 02:
They have been confirmed, so there is a working board.

[00:29:15] Speaker 02:
I don't believe the third member has been confirmed.

[00:29:19] Speaker 02:
But there is a working board.

[00:29:20] Speaker 02:
As far as consolidating clip one with clip two, they are separate time frames that were evaluated by separate administrative judges.

[00:29:34] Speaker 02:
So procedurally, I'd be willing to work with the agency to try to work through those things.

[00:29:43] Speaker 02:
I can't think off the top of my head the procedural mechanism for doing it.

[00:29:49] Speaker 02:
But now that we have a full board, or at least a majority of board members, there must be a way to consolidate the cases.

[00:29:58] Speaker 00:
In your opening brief, I thought your opening brief had more of an emphasis seeking reversal.

[00:30:05] Speaker 00:
Did you also ask for a vacatur in the alternative?

[00:30:09] Speaker 04:
I believe we did.

[00:30:10] Speaker 04:
I think if you look at the conclusion of the brief, that's what's requested.

[00:30:14] Speaker 02:
I believe it's the very last page of the very last page of the alternative.

[00:30:22] Speaker 00:
In the alternative, this court should remand to the board to apply the correct legal standard?

[00:30:28] Speaker 00:
Yes.

[00:30:32] Speaker 02:
The facts, though, if we're looking at his actual duties, clearly support a finding that he spent greater than 50% of his time performing primary law enforcement functions.

[00:30:49] Speaker 02:
He was required to attend and graduate from the criminal investigator training program in order to keep his job.

[00:30:56] Speaker 02:
He did attend and graduate from what is known as CITP, carried a firearm at all times.

[00:31:03] Speaker 02:
He conducted criminal investigations greater than 50% of the time.

[00:31:07] Speaker 02:
He conducted criminal investigations away from the airport in both Florida and throughout Louisiana.

[00:31:14] Speaker 02:
You have a transcript from his direct supervisor, the federal security director, who said that Mr. Clips spent at least 50% of his time performing law enforcement.

[00:31:27] Speaker 02:
He responded, I would say he spent all of his time performing law enforcement duties.

[00:31:33] Speaker 01:
He also said that on page 22 of the decision,

[00:31:38] Speaker 01:
The AJA reports that he further failed to provide any documentary evidence, such as incident-compliant complaint reports, overtime records, interim report, other similar records.

[00:31:50] Speaker 01:
Was there any evidence, documentary evidence, that was submitted to substantiate that the work was this rigorous work?

[00:31:59] Speaker 02:
He did submit case logs.

[00:32:04] Speaker 02:
But unfortunately, we're going back more than a decade

[00:32:09] Speaker 02:
to try to document what happened, which is why Mr. Austin was deposed.

[00:32:19] Speaker 02:
And we received a declaration from Special Agent Kent Daniel, who worked with him.

[00:32:26] Speaker 02:
And Mr. Klip submitted.

[00:32:27] Speaker 01:
You're about to say he did submit documentary evidence?

[00:32:33] Speaker 02:
Other than his case logs and his nine page detailed declaration, we were unable to locate any case file documentation because it was sold.

[00:32:46] Speaker 01:
So it's just mainly based on his recollection?

[00:32:50] Speaker 02:
Yes, and the testimony of Mr. Austin and of Ken Daniels, which, by the way, Your Honors, is not rebutted.

[00:33:01] Speaker 02:
There's nowhere in the record does the agency submit any documentation to rebut.

[00:33:07] Speaker 01:
Why in this situation wouldn't the Belcher Declaration be significant?

[00:33:13] Speaker 02:
So there are a number of problems with Mr. Belcher's declaration.

[00:33:19] Speaker 02:
First of all, Mr. Belcher said that he held a position of oversight over the program.

[00:33:27] Speaker 02:
We don't know what oversight means.

[00:33:30] Speaker 02:
He barely overlapped with Mr. Clip's time that we're requesting in this case, because he only held that position of oversight until November 2005, which is at the very beginning of that time period.

[00:33:49] Speaker 02:
Mr. Belcher indicates that he's currently assigned.

[00:33:52] Speaker 02:
as the Deputy Assistant Director for Region 2.

[00:33:54] Speaker 02:
It doesn't say when he was assigned to that position or what he did for the relevant timeframe from November 2005 to November 2009.

[00:34:04] Speaker 02:
Importantly, Mr. Belcher admits that the position

[00:34:09] Speaker 02:
was still being developed within the organization.

[00:34:12] Speaker 02:
And the roles and responsibilities were still being refined.

[00:34:16] Speaker 02:
So if the agency didn't even know what the position was about, how can the AJ rely on it and mix up all the evidence together?

[00:34:27] Speaker 02:
There's no legitimate foundation for Mr. Belcher's opinions.

[00:34:32] Speaker 02:
He qualifies his opinions throughout by saying, it is my understanding and to my knowledge.

[00:34:38] Speaker 02:
If he had direct knowledge of this, he would say it.

[00:34:42] Speaker 01:
This is based on... I find it remarkable that Mr. Clip would be hired to, in a supervisory role, managing a supervisory role.

[00:34:54] Speaker 01:
And because they haven't yet filled the subservient positions, he doesn't have anybody supervise.

[00:35:01] Speaker 01:
So he decides, apparently, I'm going to go and become a law enforcement officer and arrest people.

[00:35:07] Speaker 01:
Are the TSA structure really this loose?

[00:35:13] Speaker 02:
Well, I can't speak for the TSA structure.

[00:35:16] Speaker 02:
I can say what happened in this case.

[00:35:18] Speaker 02:
You have testimony from his direct supervisor who assigned him to the Joint Terrorism Task Force.

[00:35:26] Speaker 02:
How that could be anything but primary law enforcement duties, I can't tell you.

[00:35:30] Speaker 01:
He's a liaison there.

[00:35:32] Speaker 02:
I know he worked cases.

[00:35:33] Speaker 02:
He conducted surveillance.

[00:35:35] Speaker 02:
He was on arrest teams.

[00:35:37] Speaker 02:
He was on search warrant teams.

[00:35:39] Speaker 02:
He actually worked cases with an aviation nexus to JTTF.

[00:35:44] Speaker 02:
And the other problem with this case and the way TSA handled Mr. Clip, look at the SF50s that are in the record.

[00:35:53] Speaker 02:
They go back and forth between criminal investigator and AFSBLE.

[00:35:58] Speaker 02:
There is a number of.

[00:36:00] Speaker 02:
administrative issues.

[00:36:03] Speaker 00:
Do you think this is because the investigators were all stationed primarily in Atlantic City?

[00:36:15] Speaker 02:
It's hard to know, Your Honor.

[00:36:18] Speaker 02:
I can't explain how or why TSA dropped the ball so significantly on this in terms of making it clear what AFSDLE's obligations were for the time period that Mr. Clip was working.

[00:36:37] Speaker 02:
But what the record does show is that his supervisor

[00:36:41] Speaker 02:
was clearly aware of what he was doing, had knowledge of it, assigned him those roles and responsibilities, and rated him on those.

[00:36:53] Speaker 04:
OK.

[00:36:56] Speaker 04:
Thank you, Mr. Jason.

[00:36:58] Speaker 04:
Thank you, Mr. Kerr.

[00:36:59] Speaker 04:
The case is submitted.

[00:37:00] Speaker 04:
That concludes our session for this afternoon.