[00:00:00] Speaker 05:
Next case for argument is 20-1842, Seneca versus MSPB.

[00:00:07] Speaker 05:
Mr. Chappabitty, we're ready when you are.

[00:00:12] Speaker 05:
Please, Mr. Chappabitty.

[00:00:15] Speaker ?:
OK.

[00:00:15] Speaker 03:
Please, the court.

[00:00:17] Speaker ?:
The petitioner's appeal seeks to criticize and order by an administrative judge, Dunnefield, for lack of jurisdiction and, in the process,

[00:00:30] Speaker 03:
He did not weigh or balance what was before him and what petitioner Seneca had placed before him for consideration to show that, yes, indeed, he did have jurisdiction over his initial appeal.

[00:00:46] Speaker 03:
And he should have made a more full decision supporting his lack of jurisdiction situation.

[00:00:56] Speaker 03:
And what we want to do, Mr. Seneca,

[00:00:59] Speaker 03:
respectfully request from this honorable court a decision to reverse and remand the Dutteville, July 26, 2016, final decision for lack of jurisdiction back to the lower level so that he can engage in discovery and argue at a hearing why the MSPB has full jurisdiction in this matter.

[00:01:19] Speaker 03:
Should a remand be deemed appropriate?

[00:01:22] Speaker 03:
Well, is your position, sir?

[00:01:24] Speaker 05:
This is Judge Prost.

[00:01:25] Speaker 05:
Is your position that they were just wrong on the law or on the facts?

[00:01:32] Speaker 05:
In your view, is this is an appealable non-selection, that this is a suitability determination?

[00:01:42] Speaker 05:
And on what basis do you make that?

[00:01:44] Speaker 05:
I mean, we've got as a given the 2008 regulation.

[00:01:50] Speaker 05:
And that suggests that one-off selections

[00:01:56] Speaker 05:
do not constitute, and we're not going to recognize, the courts aren't going to recognize, a constructive eligibility determination.

[00:02:04] Speaker 05:
So how is your case different than one of those?

[00:02:09] Speaker 03:
Yes, Judge.

[00:02:10] Speaker 03:
If you take a look at the extensive timeline that the petitioner had prepared, it begins in September 2015.

[00:02:24] Speaker 03:
numerous conversations, numerous meetings, numerous disclosures to the NIH, and an anticipation of getting a full position with them.

[00:02:38] Speaker ?:
Now, one of the things that's confusing here is that Dean Seneca marked the negative suitability determination in his initial appeal form that was dated April 1, 2016.

[00:02:54] Speaker 03:
What has happened here is the agency and the judge, this day Judge Dutteville, aired and they went way off the situation and did not apply the correct law or they misapplied the law that gave them the basis to say, oh, this is just a tentative offer.

[00:03:15] Speaker 03:
Well, that ignored a March 3rd

[00:03:20] Speaker 03:
2016 letter from the Human Resources Office.

[00:03:23] Speaker 05:
I'm not debating whether it was a tentative or a final offer.

[00:03:27] Speaker 05:
The question before us is whether or not this is an appealable non-selection.

[00:03:33] Speaker 05:
And that's based on whether it was not just a one-off, constructive suitability determination, but a real suitability determination is defined by the regulations.

[00:03:44] Speaker 05:
So how do you draw that distinction there?

[00:03:50] Speaker 03:
Well, let's take a look at the core matter that confronted Ms.

[00:03:54] Speaker ?:
Sinica back in 2016.

[00:03:58] Speaker ?:
And that was that certain information came forward into the hands of Ms.

[00:04:08] Speaker ?:
Becker.

[00:04:09] Speaker ?:
And she wrote him a letter saying, I have information that shows that this was not a competitive promotion.

[00:04:19] Speaker ?:
but that it was a tentative offer.

[00:04:21] Speaker ?:
Now, she's totally wrong in that regard.

[00:04:24] Speaker ?:
Now, explain why.

[00:04:25] Speaker 02:
Well, first of all...

[00:04:32] Speaker 02:
for purposes of current discussion that it doesn't make any difference whether this was a tentative offer or not.

[00:04:40] Speaker 02:
Just assume that.

[00:04:40] Speaker 02:
I know you disagree with it.

[00:04:42] Speaker 02:
Make your argument on the assumption that it doesn't matter whether it was a non-tentative offer.

[00:04:48] Speaker 02:
It was a rescission of a definite promotion.

[00:04:54] Speaker 02:
Why then do you still prevail?

[00:04:58] Speaker 02:
Or are you saying you don't prevail unless we were to conclude that?

[00:05:06] Speaker 02:
Go on.

[00:05:08] Speaker 03:
OK.

[00:05:09] Speaker 03:
Well, what we want to emphasize here to the panel is that the information document that was used by the agency in this becker to withdraw

[00:05:23] Speaker 03:
the so-called tentative offer was in and of itself a suitability determination, patently a very provable suitability determination, because of what it had in it that caused him to be derailed in getting further and going on the job.

[00:05:46] Speaker 04:
Mr. Chappaburi, this is Judge Stoll.

[00:05:48] Speaker 04:
I hear what you're saying.

[00:05:49] Speaker 04:
You're saying that that decision, which we've all read,

[00:05:53] Speaker 04:
is a non-suitability determination.

[00:05:57] Speaker 04:
But we have a regulation that says a non-selection or cancellation of eligibility for a specific position based on an objection to an eligible or a pass-over of a preference eligible is not a suitability action, is not.

[00:06:12] Speaker 04:
Even if it's based on the same reasons that are considered for suitability.

[00:06:17] Speaker 04:
So that's the trouble we're having here.

[00:06:20] Speaker 04:
a communication that says that he is not going to be given a particular position.

[00:06:26] Speaker 04:
And it says even in that circumstance that we cannot consider it a suitability determination.

[00:06:34] Speaker 04:
So how do you respond to that specifically?

[00:06:39] Speaker 03:
Well, the process for that so-called withdrawal by the agency was something that I was

[00:06:48] Speaker 03:
that he has never had the opportunity to look at.

[00:06:50] Speaker 03:
Now, one of the arguments we made early on was that the Administrative Judge should have allowed him to give the document in discovery process and to take that information and review it and argue it at a hearing before the Administrative Judge to see if it was indeed an appealable suitability determination

[00:07:13] Speaker 03:
or whether it was beyond the jurisdiction.

[00:07:15] Speaker 04:
But even, I have a question for you, Mr. Chappabitty.

[00:07:18] Speaker 04:
I hear what you're saying.

[00:07:20] Speaker 04:
I think that let's assume you were given that discovery.

[00:07:25] Speaker 04:
I'm having a hard time imagining what you could possibly get that would overcome this regulation.

[00:07:31] Speaker 04:
Because this was a determination for a specific position only.

[00:07:39] Speaker 04:
You agree with that, right?

[00:07:42] Speaker 03:
Yes, but it was confirmed.

[00:07:44] Speaker 03:
It was a confirmed position.

[00:07:46] Speaker 04:
But it's not a specific position.

[00:07:47] Speaker 04:
Do you agree that the letter was involving a specific position?

[00:07:54] Speaker 03:
It was a letter confirming him to the position that he was supposed to give in on May the 3rd.

[00:08:03] Speaker 04:
So that's a specific position, right?

[00:08:06] Speaker 04:
Is that a specific position?

[00:08:09] Speaker 03:
Yes, it was a specific position for

[00:08:12] Speaker ?:
tribal health resource officer.

[00:08:17] Speaker 03:
And what he did is he went forward and then the information document came up and came in and in effect caused him not to be able to get his confirmed position.

[00:08:34] Speaker ?:
What's happening here is everyone is the agency and the administrative judge are mixing up and they're trying to muggle up what

[00:08:42] Speaker 03:
the meeting of a confirmed position versus a tentative selection.

[00:08:50] Speaker 03:
Now, we're saying that it was a confirmed position, and there's no doubt about it.

[00:08:54] Speaker 03:
The facts, the evidence, and the manner in which the agency acted for months and months and months, including the... I know Judge Toronto has called this too.

[00:09:09] Speaker 05:
Let's assume that it was a confirmed position.

[00:09:11] Speaker 05:
I don't think the agency is resting on, well, if it's a confirmed position, it's a viewable non-suitability determination.

[00:09:21] Speaker 05:
I think whether it's confirmed or not confirmed, you're still in the question that Judge Still raised, which this was a non-selection for a particular position.

[00:09:36] Speaker 05:
Right?

[00:09:38] Speaker 03:
Well, somewhat, but let me go ahead and respond a little bit more.

[00:09:43] Speaker ?:
Non-suitability, is it an appealable suitability determination?

[00:09:48] Speaker 03:
Yes, and we believe that is because the information, had it been divulged to him, would have uncovered the substance of what was alleged to get hit against him to show that he was not, that he could not go into the position because it would harm the agency's functioning.

[00:10:08] Speaker 03:
good harm the agency's duty to the tribes out there.

[00:10:12] Speaker ?:
And therefore, they said, you can't do this.

[00:10:15] Speaker ?:
They said, well, show me.

[00:10:16] Speaker ?:
Show me what it is.

[00:10:17] Speaker ?:
I want to see, Judge Donahue, I want to see the details and substance of what it was that was put in my way to prevent me from going forward with all the assurances that everyone had given me, even way back in February 25th and 26th, when the Deputy Director

[00:10:38] Speaker 03:
and the director, Francis Collins and Jim Anderson, went before a national group of tribal leaders and publicly announced that Dean would be taking the position that it's an issue here.

[00:10:56] Speaker 02:
Mr. Chapman, can I ask you this question?

[00:11:00] Speaker 02:
So the regulation 731.203B, that's the one that we've been talking about so far, a non-selection, blah, blah, blah, for a specific position is not a suitability action.

[00:11:13] Speaker 02:
Before you get to B, don't you have to qualify under A, which says, for purposes of this part, a suitability action is one or more of the following.

[00:11:23] Speaker 02:
Cancellation of eligibility.

[00:11:25] Speaker 02:
Removal, cancellation of reinstatement eligibility, and debarment.

[00:11:31] Speaker 02:
Which is this case in your view?

[00:11:34] Speaker 02:
Or is that not an exhaustive list?

[00:11:40] Speaker 03:
Well, if we had the information and had an opportunity to go get it, review it, then we would come up and probably say this is number one or A there, which was what you just stated.

[00:11:53] Speaker ?:
This is the whole crux of the problem here with the petitioner and having him file his initial petition with the MSPB and then filing this petition with the Federal Circuit Court is that he never had the opportunity to fully argue that yes, it is within the regulations, yes, whatever it was that the information consisted of should have triggered

[00:12:23] Speaker 03:
further action by the agency, and we have argued this in detail in the briefs, it should have triggered their responsibility, legal responsibility, to give him notice and give him an opportunity to come forward and exercise his right to due process to be able to respond and come back and say, that doesn't make any difference, I'm still qualified, and if you're not going to find me suitable, then I'm going to have to take this further up within the jurisdiction of the MSPB.

[00:12:53] Speaker ?:
But he did, the door shut on him in the process to him trying to find out more details about what it was that was approximately the cause for the agency to shut the door on him going forward with the confirmed job on May the 3rd.

[00:13:10] Speaker 03:
So the issue is, we believe that had we had discovery that we could have proven by preponderance of the evidence and by non-fivolous argument that yes, this is a

[00:13:23] Speaker ?:
appealable suitability determination.

[00:13:26] Speaker ?:
As I mentioned, he did check the negative suitability determination on the initial box in his initial MSTD petition filing.

[00:13:36] Speaker 03:
So the box tells me, very openly, it tells him that yes, he was appealing a suitability, a negative suitability determination.

[00:13:46] Speaker ?:
Now, how can we say that?

[00:13:48] Speaker ?:
We can say it because what information was received did indeed constitute

[00:13:53] Speaker 03:
a suitability issue that focused on his ability to go forward and represent the NIH in the job that he was confirmed and selected for.

[00:14:09] Speaker 03:
OK.

[00:14:09] Speaker 05:
You're well into your rebuttal.

[00:14:11] Speaker 05:
Would you like to save it?

[00:14:12] Speaker 05:
And let's hear from the government.

[00:14:15] Speaker 05:
We'll save the remainder of your time for rebuttal.

[00:14:19] Speaker 05:
OK?

[00:14:21] Speaker 05:
Thank you.

[00:14:23] Speaker 03:
OK.

[00:14:24] Speaker 05:
We'll turn to the two advocates for the government now.

[00:14:30] Speaker 01:
May it please the court?

[00:14:33] Speaker 01:
My name is Deanna Schalbacher.

[00:14:34] Speaker 01:
I'm representing MSPB in this appeal.

[00:14:39] Speaker 01:
MSPB's jurisdiction to review suitability actions derives from OPM's regulations.

[00:14:44] Speaker 01:
And as you have mentioned, these regulations are explicit that a non-selection for specific position

[00:14:51] Speaker 01:
simply cannot constitute an appealable suitability action within our jurisdiction, even if it is based on suitability criteria.

[00:14:59] Speaker 02:
Can I just ask on that?

[00:15:03] Speaker 02:
That provision 203b has a placement of a comma after non-selection, which suggests

[00:15:14] Speaker 02:
that the reference to for a specific position is not really attached to the phrase non-selection.

[00:15:27] Speaker 01:
Yes.

[00:15:27] Speaker 01:
I believe that there's another comma after Passover as well.

[00:15:35] Speaker 02:
Right.

[00:15:35] Speaker 02:
So there's a non-selection comma and then a long phrase starting or.

[00:15:40] Speaker 02:
And those two phrases talk about actual eligibility rules.

[00:15:46] Speaker 01:
Okay.

[00:15:46] Speaker 01:
You're correct.

[00:15:46] Speaker 01:
Yes.

[00:15:47] Speaker 02:
So does this regulation say a non-selection is not a suitability action, even if it is based on reasons set forth?

[00:15:55] Speaker 01:
Yes, you're correct.

[00:15:57] Speaker 02:
And why is that attached to a specific position?

[00:16:03] Speaker 01:
I'm sorry.

[00:16:05] Speaker 02:
So any non-selection can never be a suitability determination.

[00:16:09] Speaker 02:
Is that what that regulation says?

[00:16:10] Speaker 01:
I believe that's correct.

[00:16:11] Speaker 01:
Yes.

[00:16:11] Speaker 01:
This section is a little bit confusing, talking about the cancellation of eligibility based on an objection or a Passover.

[00:16:18] Speaker 01:
But I do believe, you're correct, that the comments do set off the specific position.

[00:16:22] Speaker 01:
So a non-selection would never be a suitability action.

[00:16:26] Speaker 04:
Can I ask you, is the term non-selection, what does that mean?

[00:16:29] Speaker 04:
Is it non-selection for a specific position?

[00:16:32] Speaker 04:
Is it defined somewhere?

[00:16:34] Speaker 01:
It's not defined, but I do believe it would necessarily refer to a specific position because you wouldn't just be non-selected in general.

[00:16:42] Speaker 01:
So I think it's kind of inherent in the term that it's for a position that you have applied for.

[00:16:46] Speaker 01:
And there are several cases, including this court's decision in Ritchie v. MSPB, in which the court construed the rescission of a job offer as a non-selection.

[00:16:59] Speaker 01:
That also happened in Solis.

[00:17:02] Speaker 01:
the MSPB, and a board's decision has on.

[00:17:07] Speaker 02:
So I believe that a rescission of a job offer is... Is your position that even irrespective of 203B, that is, this thing that was added in 2009, effective in 2008, that this would not, what happened here, would not qualify as a suitability action under 203A?

[00:17:31] Speaker 01:
Correct.

[00:17:31] Speaker 01:
It doesn't qualify as one of the covered classes.

[00:17:34] Speaker 02:
Why was it not a... I assume the whole focus here is on the first one, cancellation of eligibility.

[00:17:41] Speaker 02:
Why is this not that putting aside the non-selection subsection that comes next?

[00:17:47] Speaker 01:
Right.

[00:17:48] Speaker 01:
If the agency had intended to cancel his eligibility, it might have done so on the basis of an objection to an eligible, which would allow it to pass over

[00:18:00] Speaker 01:
Um, Mr. Seneca, if he was one of the top qualified candidates and select someone else, Mr. Seneca has never alleged that the agency selected anyone else, uh, for this position.

[00:18:10] Speaker 02:
And what does it mean to cancel eligibility that is different from, I think you just understand something that at least I do not understand.

[00:18:19] Speaker 02:
What does it mean to cancel eligibility?

[00:18:22] Speaker 02:
That's different from, I don't think you'd be a good fit for this job.

[00:18:26] Speaker 02:
So I'm canceling your promotion.

[00:18:29] Speaker 01:
That's a great question.

[00:18:30] Speaker 01:
I believe that generally, well, at least when it is a suitability action, the cancellation of eligibility is for more than one position.

[00:18:38] Speaker 01:
It's a broad action across a number of certificates of eligibility.

[00:18:42] Speaker 02:
How do we know that?

[00:18:44] Speaker 02:
My mind was turning to that possibility that it has to do with a scope of the negative judgment

[00:18:54] Speaker 02:
has to be more than for this position today.

[00:18:59] Speaker 02:
Where do I find that notion of scope?

[00:19:01] Speaker 02:
Because when I look at some of the definitions in the suitability regulations, I forget where it's in the 101, but in the definitions, they seem like they would cover something whose scope is no broader than that particular job.

[00:19:26] Speaker 01:
Yes, I understand that.

[00:19:27] Speaker 01:
I believe that a cancellation of eligibility, as far as my understanding, there would really be no reason to cancel eligibility unless the agency wanted to select someone further down on the list of eligibles.

[00:19:43] Speaker 01:
They could simply not select this individual or any individual from the certificate of eligibles and either not fill the position or fill it later.

[00:19:56] Speaker 01:
I would agree that the regulations are fairly confusing regarding what is a cancellation of eligibility.

[00:20:03] Speaker 01:
But the case law has interpreted these two sections, A and B, to require that in order to have an appealable suitability action, the agency must have canceled eligibility across several or more than one certificate of eligibility.

[00:20:17] Speaker 05:
I'm getting more confused, rather than most confused.

[00:20:20] Speaker 05:
And it's probably my fault, not yours.

[00:20:22] Speaker 05:
But if you're saying,

[00:20:27] Speaker 05:
to make it a reviewable or an appealable suitability determination, they have to have said to this applicant, we're not giving you this position, and you are not suitable for every other position in NIH?

[00:20:47] Speaker 05:
Is that kind of what you said?

[00:20:50] Speaker 01:
Right, yes.

[00:20:51] Speaker 01:
A suitability determination on its own is not appealable.

[00:20:54] Speaker 01:
There must be this suitability action on the basis of a suitability determination.

[00:20:58] Speaker 01:
And in order to cancel his eligibility broadly across a number of positions in order to constitute a suitability action, the agency would have given him notice, or there would have been some allegation that he was precluded from applying for it.

[00:21:13] Speaker 05:
And you're saying that would be appealable, right?

[00:21:15] Speaker 01:
if agency had broadly canceled his eligibility, yes.

[00:21:18] Speaker 05:
So I'm confused about the, is it Richie, do you pronounce it, the case that everybody, your side is relying on, because I thought I understood the distinction, but in Richie they did do that, or at least they said that

[00:21:34] Speaker 05:
They've got this derogatory information.

[00:21:36] Speaker 05:
This was for an ICE position and has revealed derogatory information, which is serious enough to warrant a proposal that she be found unsuitable for this criminal investigation position and possibly denied examination for an appointment to all positions in ICE.

[00:21:57] Speaker 05:
Yes.

[00:22:00] Speaker 05:
If this was not impossibly denied examination, but they said, you're denied examination for all other ICE positions, would that be an appealable suitability determination?

[00:22:11] Speaker 01:
That would be.

[00:22:12] Speaker 01:
I believe in Ritchie, they provided notice that they were proposing to debar the petitioner from further employment.

[00:22:19] Speaker 01:
But in the end, they didn't take that action.

[00:22:21] Speaker 01:
So it was still not appealable.

[00:22:22] Speaker 05:
OK, but that's the kind of action, then, that you're differentiating between this, because they said,

[00:22:27] Speaker 05:
not only are we not picking you for this one position, but we're foreclosing you from being eligible for every similar position?

[00:22:35] Speaker 01:
Yes, I think a debarment is forward-looking, so debarring you from future opportunities and a cancellation would be saying you're not eligible for any of these positions that you've already applied for and you're on the certificate of eligibility for.

[00:22:47] Speaker 01:
So it would be cancelling

[00:22:49] Speaker 01:
They did neither of those in this case.

[00:22:51] Speaker 01:
No, they didn't.

[00:22:52] Speaker 01:
They didn't take any broad action.

[00:22:53] Speaker 01:
They simply did not select him for this one particular position.

[00:22:57] Speaker 05:
But you see the frustration and the sort of harshness disappears, at least with respect to the denial of discovery here, because the government has complete control.

[00:23:10] Speaker 05:
So what if the basis for their denying him this position

[00:23:15] Speaker 05:
was something that we know is a practical matter.

[00:23:17] Speaker 05:
This is going to be in his personnel file, and he's never going to be selected for any GS-15 position at NIH.

[00:23:24] Speaker 05:
So as a practical matter, if he knew what the information was, it could be self-evident that this would apply as a debarment for future stuff.

[00:23:34] Speaker 05:
But he's never going to know that.

[00:23:35] Speaker 01:
No.

[00:23:37] Speaker 01:
Subsequent to the 2008 revisions to the OPM regulations, the board

[00:23:42] Speaker 01:
is precluded from considering any kind of de facto suitability action or constructive suitability action, that the effect of this information forward-looking cannot be considered in assessing the board's jurisdiction.

[00:23:55] Speaker 05:
So the government can effectively, though, preclude any review of any of its suitability determinations by doing them each as a one-off as opposed to a generic suitability, right?

[00:24:07] Speaker 05:
I mean, there's a way that the government

[00:24:10] Speaker 05:
if we're inclined to say, we just don't want to have to review any of these non-selections, the government could avoid that by making a one-off, one-on-one determination that's essentially the same thing, right?

[00:24:23] Speaker 01:
I believe that's correct under the revised regulations, yes.

[00:24:26] Speaker 01:
It's kind of troubling, is it not?

[00:24:30] Speaker 01:
Unfortunately, the board is constrained by OPM's regulations that provides this.

[00:24:34] Speaker 05:
Were the regulations ever challenged?

[00:24:39] Speaker 01:
Not as far as I know.

[00:24:40] Speaker 01:
The board previously, before the 2008 revisions to the regulations, did exercise jurisdiction over things that looked like constructive suitability actions.

[00:24:49] Speaker 01:
But OPM amended those regulations explicitly to stop the board from doing just that.

[00:24:57] Speaker 01:
And they're very explicit that the board must look to what the agency actually did, what the agency said it did, and not any potential possible future consequences of the agency's action.

[00:25:09] Speaker 05:
Can I just add one?

[00:25:11] Speaker 05:
This is just a general question.

[00:25:13] Speaker 05:
I was a bureaucrat for a lot of years, so I should maybe know this.

[00:25:15] Speaker 05:
But is the basis for his non-selection, does that remain in any kind of a folder or a file so that if he applies for the next job, that automatically pops up?

[00:25:29] Speaker 01:
I wouldn't think so.

[00:25:31] Speaker 01:
But again, MSPB does not know what that information was.

[00:25:37] Speaker 01:
how formal it was.

[00:25:37] Speaker 01:
If it was just a communication, it's not in the record.

[00:25:40] Speaker 01:
We don't know what it was.

[00:25:41] Speaker 05:
And there's still the ability to challenge non-selections for discriminatory reasons or that sort of thing, right?

[00:25:50] Speaker 01:
Sure.

[00:25:51] Speaker 01:
Through the EEOC, you could challenge a non-selection on the basis of discrimination.

[00:25:55] Speaker 01:
Before the board, a non-selection could be appealed based on whistleblower reprisal or a violation of VOA or USERA.

[00:26:03] Speaker 01:
but simply not a standalone non-selection or a non-selection based on suitability criteria.

[00:26:08] Speaker 02:
I forget whether it's your brief or the Justice Department's brief.

[00:26:13] Speaker 02:
There's a discussion of a due process claim here.

[00:26:18] Speaker 02:
It was a little unclear to me whether there is agreement or dispute about whether we need to say anything about the due process claim if we conclude that there was no board jurisdiction

[00:26:33] Speaker 02:
under the suitability regulations.

[00:26:38] Speaker 01:
Absent for jurisdiction, we're precluded from considering these other claims regarding any of the agency's actions.

[00:26:45] Speaker 02:
You know, is this a disputed point?

[00:26:47] Speaker 01:
I'm not sure.

[00:26:48] Speaker 01:
I don't believe it's between the intervener and respondent.

[00:26:52] Speaker 02:
Well, there's three parties.

[00:26:54] Speaker 02:
Is anybody's argument, because I thought, I'm not sure what I'm remembering.

[00:27:00] Speaker 02:
Maybe it was the government's brief.

[00:27:01] Speaker 02:
Maybe it was the AJA's decision that seemed to just address the due process on the merits without ever saying, you don't have to reach this, or we don't have to reach this, or we don't have to consider this if there's no board jurisdiction.

[00:27:15] Speaker 01:
Do you remember if it was the due process regarding the agency's action or due process before the board?

[00:27:21] Speaker 02:
I don't know.

[00:27:22] Speaker 02:
It wasn't the last argument in the government.

[00:27:24] Speaker 02:
We can ask the government.

[00:27:25] Speaker 01:
Oh, OK.

[00:27:25] Speaker 01:
Yeah, sure.

[00:27:28] Speaker 01:
I believe that he raised some arguments regarding his denial of discovery.

[00:27:32] Speaker 01:
But the MSPB's position is that the administrative judge acted within his discretion to stay discovery deadlines pending a decision on jurisdiction absent a non-frivolous allegation

[00:27:44] Speaker 01:
board jurisdiction.

[00:27:45] Speaker 01:
Accepting Mr. Seneca's arguments as true, there still would not be board jurisdiction because there was no suitability action.

[00:27:54] Speaker 01:
If there's no further questions, thank you.

[00:27:56] Speaker 01:
We respectfully request that you affirm the board's decision.

[00:28:00] Speaker 00:
May I please the court?

[00:28:02] Speaker 00:
I'll begin by saying we agree with everything that Ms.

[00:28:06] Speaker 00:
Schaubacher said and agree that affirming the MSPB's decision is the appropriate outcome here.

[00:28:13] Speaker 00:
I'll address Judge Toronto's question at the outset and say our position is that the court does not need to address any due process arguments if it concludes that the board doesn't have jurisdiction.

[00:28:25] Speaker 00:
I'm not sure if Mr. Seneca disagrees with that.

[00:28:30] Speaker 00:
I'm happy to address any other questions that the panel might have.

[00:28:34] Speaker 02:
Is there a technical answer to the question what an eligibility cancellation is?

[00:28:44] Speaker 00:
There's nothing more precise in the regulations that I'm aware of.

[00:28:50] Speaker 00:
What I can say in this instance, as is clear from Mr. Seneca's chronology at supplemental

[00:28:58] Speaker 00:
Appendix 87, the agency re-advertised the position.

[00:29:03] Speaker 00:
They didn't select Mr. Seneca.

[00:29:05] Speaker 00:
They didn't pick anybody else either.

[00:29:07] Speaker 00:
They re-advertised the position.

[00:29:09] Speaker 00:
So there's no need to cancel eligibility in that instance.

[00:29:13] Speaker 00:
The agency always has the authority to not pick anybody from the list of eligibles that they received from HR.

[00:29:22] Speaker 00:
More generally, as the MSPB noted, there is a distinction

[00:29:26] Speaker 00:
between cancellation of eligibility for a specific position, which generally arises in the case of an objection to an eligible or a Passover of a preference eligible.

[00:29:38] Speaker 00:
And that's a situation where there's a higher rated person A and a lower rated person B, and the agency wants to pick the lower rated person B over person A. The hiring official can cancel the eligibility

[00:29:53] Speaker 00:
of person A by objecting to their eligibility.

[00:29:57] Speaker 00:
And there are various factors they can consider which are set forth in a handbook prepared by OPN.

[00:30:04] Speaker 00:
So that's the situation where eligibility for specific position is canceled.

[00:30:10] Speaker 00:
But not reviewable.

[00:30:12] Speaker 00:
That would not be reviewable right under the regulations.

[00:30:14] Speaker 04:
And how do you define non-selection?

[00:30:19] Speaker 00:
I think generally it's non-selection for a specific position is our understanding.

[00:30:23] Speaker 04:
How do we know that?

[00:30:27] Speaker 00:
There's case law that talks about non-selection generally being not appealable, but I'm not aware of any more.

[00:30:32] Speaker 04:
But saying it's for a specific position.

[00:30:35] Speaker 00:
That's generally how non-selection works in our understanding as the cases use that term and as the regulation uses that term.

[00:30:42] Speaker 00:
But just if I could briefly finish the point, because I see my time has expired.

[00:30:47] Speaker 00:
There is the more general cancellation of eligibility for a number of different positions, all the positions that the applicant has applied for.

[00:30:56] Speaker 00:
We see that, again, in response to Judge Toronto's question.

[00:31:00] Speaker 00:
I'm not aware of any specific regulation that talks about when that happens.

[00:31:04] Speaker 00:
But there are MSPB decisions that have referred to OPM canceling eligibility for different

[00:31:11] Speaker 05:
uh... for for all open positions so and i think it is and it wasn't your time because i think you were still running off your friends clock so i think you you start off with another five minutes my correct on that okay well you've got time uh... but uh... it's been a bit uh... maybe i'm a little confused is there a difference in terms of what we're talking about if they had

[00:31:40] Speaker 05:
selected just when they withdrew his offer or whatever, they just selected number two person on the list versus canceling the whole advertisement and re-advertising it again.

[00:31:51] Speaker 05:
Does that have anything to do with anything that we're talking about here?

[00:31:57] Speaker 00:
So in terms of whether there was a suitability action taken, which is the question this board is deciding, no, it has nothing to do.

[00:32:04] Speaker 00:
I was trying to address the more general issues by addressing specific questions, but that has nothing to do.

[00:32:12] Speaker 05:
And he talks about the box was checked, you're not suitable.

[00:32:15] Speaker 05:
But they still kept the box after the 2008 rate regulation, right?

[00:32:21] Speaker 00:
It seems like it, yes.

[00:32:22] Speaker 05:
So there's some source of confusion then.

[00:32:24] Speaker 00:
It seems like it, yes.

[00:32:26] Speaker 00:
But we agree that suitability determination by itself is not appealable.

[00:32:30] Speaker 00:
There has to be a suitability action.

[00:32:32] Speaker 00:
and the superlative.

[00:32:34] Speaker 05:
How would he know if he's not allowed discovery?

[00:32:37] Speaker 05:
How would he even know whether or not what happened to him and what was done to him passes the threshold?

[00:32:45] Speaker 05:
There could be something in his file that says, we've discovered that he's guilty of some heinous crime.

[00:32:52] Speaker 05:
and we can't select him for this, parens, and we know he can't be selected for any other position.

[00:32:59] Speaker 05:
How do we know that's not in his file?

[00:33:01] Speaker 00:
There are procedural requirements that both the agency and OPM, depending on who takes the action, have to follow before they can take a suitability action.

[00:33:09] Speaker 00:
So if an employee is subjected to a suitability action, they have to get notice of it.

[00:33:14] Speaker 02:
And there are cases where employees get... Right, but I'm sorry, but if the argument is that that requirement was violated,

[00:33:21] Speaker 02:
then you can't use failure to fulfill the requirement to.

[00:33:25] Speaker 02:
to remove it from the predicate for the requirement?

[00:33:29] Speaker 00:
If the argument, and I'm not sure he's made the argument that specifically, but if he's saying there are specific notice requirements that weren't followed here, then we would say, well, first, there's an affidavit from the agency saying no suitability determination was made here.

[00:33:46] Speaker 00:
And there can't be a suitability action without a suitability determination.

[00:33:51] Speaker 00:
That's in supplemental appendix 65.

[00:33:54] Speaker 00:
And there's also the fact that all these suitability actions refer to either removal from a position.

[00:34:01] Speaker 00:
And Mr. Seneca, in his brief, he says he continued in federal employment in a different position until 2018.

[00:34:07] Speaker 00:
He doesn't say he was removed from that position.

[00:34:09] Speaker 02:
If this had all happened on April 15 after the effective date of the new job, so he was in it for a week or two, then that would be a removal and it would be

[00:34:21] Speaker 00:
If he'd been appointed.

[00:34:23] Speaker 00:
Was it the effective date, April 1st or April 6th?

[00:34:28] Speaker 00:
The question would be, was he appointed on that day, assuming he was appointed on that day, and then subsequently removed?

[00:34:36] Speaker 00:
First, it would have to be OPM that did that.

[00:34:39] Speaker 00:
The agency, if it's the suitability action,

[00:34:43] Speaker 00:
authority that's being used, only OPM can remove employees.

[00:34:48] Speaker 00:
So if OPM removed him from employment after he was appointed to that specific position, as a result of the suitability action authority, it would have had to have provided him with notice and an opportunity to respond

[00:35:02] Speaker 00:
uh... and in in that case if you would be able to tell if they just have removed him he would have had a seventy-five twelve he would have that they they can also see the nation i'm sorry i assume he might be a probationer which if you were ten you're right if you are not tenured that would be an issue but if you were tenured then the uh... yes the agency would presumably uh... proceed under chapter seventy-five to remove him happy to address any other questions if not we ask that the MSPD's decision be affirmed

[00:35:33] Speaker 05:
We will restore two minutes for the rebuttal time, sir.

[00:35:37] Speaker 03:
OK.

[00:35:37] Speaker 03:
I want to take a look at the Ricky case.

[00:35:41] Speaker ?:
And there's no doubt that the facts and circumstances that confronted Ricky and her suitability to issues, that they were tentative offered.

[00:35:54] Speaker 03:
The other major point with Ricky is that she did, in fact, have an opportunity to look at the allegations, to examine what they were,

[00:36:03] Speaker 03:
and to assess them, and the court came back and ruled against her efforts to try to get jurisdiction to hear her case.

[00:36:13] Speaker 03:
Now here we have a, why did the, the question I have in rebuttal is why did the NIH decide not to do a suitability investigation when the information, quote unquote, they received caused them to deem

[00:36:31] Speaker 03:
Mr. Seneca no longer qualified and therefore unsuitable.

[00:36:36] Speaker 03:
That is the crux of his due process argument.

[00:36:40] Speaker ?:
It would be so simple for this court to say, we agree that there are some big due process issues here with the manner in which the agency did not let Mr. Seneca review and respond to the so-called information that kept him from the position that he had been confirmed to and therefore

[00:37:00] Speaker ?:
We'd like to go back and simply order that discovery being conducted.

[00:37:05] Speaker ?:
So he can, in fact, get an idea.

[00:37:07] Speaker ?:
He can, in fact, examine it and can, in fact, make a decision to either look at it and say, yes, I agree with the agency.

[00:37:16] Speaker 03:
This was a non-appealable non-selection.

[00:37:19] Speaker 03:
Or else he could say, I don't agree with the agency.

[00:37:23] Speaker ?:
From the facts of this case, it appears that this was a appealable negative suitability determination

[00:37:30] Speaker ?:
that I want to go ahead and proceed on.

[00:37:31] Speaker ?:
Now that is the threshold line in the sand, so to speak, which is that the NIH decided not to do a suitability investigation so that he would not ever know what it was, the details as to why things went the way they did, not in his favor.

[00:37:53] Speaker 03:
So the point I'm stressing here is that we just want to go back and get the simplest action

[00:37:59] Speaker 03:
and decision from this court, this honorable court, that says that let's at least give him discovery.

[00:38:07] Speaker ?:
The administrative judge did not assess the arguments that Seneca made in his filings before the MSPB.

[00:38:17] Speaker 03:
They failed to look at his non-fibilis arguments, but why would they not proceed to give him the information?

[00:38:25] Speaker ?:
That was all designed and a charade to prevent him from

[00:38:29] Speaker ?:
I'm looking at whether or not this was an appealable non-selection.

[00:38:36] Speaker 03:
So that's the crux of the matter here, is that at the outset, the agency took certain actions, you know, put out delivery of the wealth land, and perhaps conspiratorial, to say, okay, we're just going to kick him out on the basis of this information, and we're not going to be taking it if we're going to argue that the MSPB has no jurisdiction, period.

[00:38:57] Speaker 03:
So those are the basic points that we were forgetting about by going into all of these other conflicting, confusing... I think we had arguments, and your time has expired.

[00:39:11] Speaker 05:
So thank both sides, and the case is submitted.

[00:39:14] Speaker 05:
That concludes our proceeding for this morning.