[00:00:02] Speaker 01:
1756, Irv Carson's Treasury.

[00:00:08] Speaker 00:
Good morning, Your Honors.

[00:00:10] Speaker 00:
In this case, the agency bears the burden of proving the charges against Mr. Irv and each element thereof, but instead what the agency has done and the MSPB affirmed was putting the burden on Mr. Irv to disprove those charges instead of carrying the burden itself.

[00:00:30] Speaker 00:
This case involves two charges, one of time card fraud with 11 specifications underneath that, and one charge of failure to follow supervisory instructions, or failure to follow instructions.

[00:00:44] Speaker 01:
OK, with respect to the time card fraud, as I understand it, in each specification there were two allegations of falsehood.

[00:00:53] Speaker 01:
One that he worked in person, and the second that he worked a full tour of duty, correct?

[00:00:59] Speaker 00:
That's correct, Your Honor.

[00:01:03] Speaker 01:
And it seems to me in reviewing the records that you have a strong argument with respect to some of the specifications, but less so with respect to others.

[00:01:17] Speaker 01:
For example, on the misstatement about the working in person.

[00:01:24] Speaker 01:
There are several specifications.

[00:01:26] Speaker 01:
There was detailed testimony about no recollection of a request to telework, and also the deciding official checked the time records and found no evidence that he had been approved for telework.

[00:01:45] Speaker 01:
So as to those specifications, and I think there might be two, three, four, maybe there are others,

[00:01:52] Speaker 01:
It's as though there's substantial evidence to support the finding of falsity, correct?

[00:01:59] Speaker 00:
I would not be able to agree with that, Your Honor.

[00:02:01] Speaker 00:
We will acknowledge the evidence supports that with these specifications at issue, Mr. Urb recorded having worked a regular tour of duty when he should have recorded telework.

[00:02:13] Speaker 00:
And so that would meet one element of the charge.

[00:02:16] Speaker 00:
That would be wrong information.

[00:02:18] Speaker 00:
However, what's not met is that he intended to mislead with his time entry or that he benefited from it personally via personal gain because the only way the agency could prove that element is to prove that he didn't work on those occasions.

[00:02:35] Speaker 00:
Now his supervisor for much of the time period here... So what you're saying is

[00:02:40] Speaker 01:
that you agree that the support for those specifications, that it was inaccurate to state that you had permission to telegram.

[00:02:49] Speaker 01:
But that wasn't a material for that statement.

[00:02:53] Speaker 00:
That's not exactly what I'm trying to persuade you of, Your Honor.

[00:02:58] Speaker 00:
We acknowledge that on his web time and attendance records, it recorded in-office work, when in fact what he had been doing was telework.

[00:03:08] Speaker 00:
And he should have recorded it as telework on most of these dates at issue.

[00:03:15] Speaker 00:
So that he worked remotely rather than in the office, which is what his time record said was in-office work.

[00:03:23] Speaker 00:
That aspect of each of these specifications, we acknowledge, is not correct information that he entered.

[00:03:30] Speaker 00:
However, the record doesn't support a contention that he did that with an intention to deceive, but rather he testified that he didn't use telework very often, and it was a mistake that he recorded it as regular in-office work versus telework on these dates at issue.

[00:03:50] Speaker 03:
The large majority of them spanning from January to June 1st are... That would be a credibility determination by the board, right, as to whether the board accepted that testimony that he accidentally recorded his time as being in office when he actually was teleworking.

[00:04:13] Speaker 03:
I think that's fair to say, however... That's hard for us to look behind, I suppose, is what my point is.

[00:04:19] Speaker 00:
understand, but the credibility determination's in concert with the record evidence.

[00:04:23] Speaker 00:
And in addition, the MSPB stated that Mr. Erb was not credited on that because of the improbability of his explanation.

[00:04:36] Speaker 00:
And a lot of that in the MSPB decision is based on the January 22nd date, the first substantiated specification in this date.

[00:04:46] Speaker 00:
And we filed a request for the court to take judicial notice that on that date, the federal government was on a shutdown.

[00:04:55] Speaker 00:
So Mr. Erbs, neither party was aware of that circumstance while this was being litigated.

[00:05:03] Speaker 00:
The investigators from the Treasury Office of Inspector General did not overturn that piece of information.

[00:05:11] Speaker 01:
But your problem is this.

[00:05:12] Speaker 01:
As I understand the case law,

[00:05:14] Speaker 01:
The charge gets sustained if one of the specifications gets sustained.

[00:05:18] Speaker 01:
So you really have to show us that there was an error with respect to all the specifications with respect to charge 1.

[00:05:27] Speaker 01:
Even if we find one specification to be supported by substantial evidence, that's sufficient, right?

[00:05:33] Speaker 00:
Well, it might be sufficient to support the charge, but not the removal action in this case, because it would be so mitigated.

[00:05:42] Speaker 00:
And also, what has not been proven with respect to any of the charges is Mr. Erb's intent to deceive or intent to defraud the government by garnering a personal gain on any of these dates.

[00:05:57] Speaker 01:
Well, let's take June.

[00:06:03] Speaker 01:
isn't plausible that he put in a full day.

[00:06:08] Speaker 01:
And there is no logging on to the web system on those days, unlike other days.

[00:06:16] Speaker 01:
So why isn't there substantial evidence to support the finding with respect to those two specifications that he didn't work full-time duty, which would be a personal gain, right?

[00:06:31] Speaker 00:
If that had occurred, I'd be forced to acknowledge that it was.

[00:06:35] Speaker 00:
However, both supervisors at issue here, Mr. Crosby and Mr. Yaros, testified that Mr. Erb was able to perform work without logging onto the telework system, and Mr. Erb testified to that as well.

[00:06:53] Speaker 00:
He had two special projects, one regarding improving SCIF operations and the other involving improving Intel review operations and those Intel review process and those entailed reviewing.

[00:07:06] Speaker 03:
Wasn't there testimony from either Crosby or Yaros that they wouldn't know how someone in this role would be able to do a full day of work, teleworking, without being logged on at least some point of the day?

[00:07:23] Speaker 00:
They testified to that, but they also testified that he did have work that he could do offline.

[00:07:28] Speaker 00:
He could work on his hard copy documents.

[00:07:30] Speaker 00:
He could work on his Samsung government device and respond to emails.

[00:07:35] Speaker 01:
In addition, why isn't, I mean, the A.J.

[00:07:38] Speaker 01:
credited the testimony that if he didn't log into the system, it was implausible that he didn't work a full tour of duty, right?

[00:07:47] Speaker 01:
So why isn't that substantial evidence?

[00:07:52] Speaker 00:
Because the testimony was not consistent.

[00:07:55] Speaker 00:
Mr. Crosby's testimony at the hearing is contradicted by his testimony during his deposition, where he was forced to admit that, yes, it's possible for Mr. Urb to do a substantial amount of work not logged on to the system.

[00:08:09] Speaker 00:
And in addition, the decision maker.

[00:08:11] Speaker 02:
Can I just, you added this time,

[00:08:15] Speaker 02:
the phrase substantial number.

[00:08:17] Speaker 02:
Is that what he said in the deposition?

[00:08:22] Speaker 00:
He said that it's possible for him to do work offline.

[00:08:25] Speaker 02:
That's not quite the same thing.

[00:08:29] Speaker 02:
The possibility of determination turns on just how much work there is to be done offline.

[00:08:37] Speaker 00:
Right.

[00:08:38] Speaker 00:
And I will say this, that the agency in responding to discovery requests in the record, in the appendix, stated that it would not put a number on how much time could be spent on some of the offline work that Mr. Erb cited, such as reading flash reports and working on the special projects and reviewing open source resources.

[00:09:00] Speaker 01:
Yeah, but they also testified that it wasn't plausible that it could work full tour of duty without logging onto the system.

[00:09:07] Speaker 00:
But that is undermined by their acknowledgement that there was work that Mr. Irv could do while not logged onto the system.

[00:09:15] Speaker 00:
In addition, he had just received an outstanding performance rating.

[00:09:18] Speaker 00:
What's not present in this record is any evidence that his work suffered, or that he missed a deadline, or that he had any performance issues which would be expected if he were gold-bricking on a regular basis and not working when he stated that he was.

[00:09:33] Speaker 03:
There was something in the record about it, a history of

[00:09:35] Speaker 03:
problems with his WebTA submissions, is that right?

[00:09:39] Speaker 00:
There is something in the record that Mr. Crosby's testimony was Mr. Erb's supervisor from until April 2018 stated that he counseled him on his WebTA.

[00:09:51] Speaker 00:
What Mr. Crosby did not say is that Mr. Erb had a history of recording that he worked when he didn't work.

[00:09:59] Speaker 00:
However, Crosby said that he had instructed Mr. Erb to correct his WebTA.

[00:10:04] Speaker 00:
Mr. Crosby also stated on Appendix 78 that he had emailed correspondence with Mr. Erb where he told him this and that he'd given those emails to agency counsel.

[00:10:15] Speaker 00:
Yet those are not in the record, and Mr. Erb doesn't recall that ever occurring.

[00:10:20] Speaker 00:
That criticism doesn't appear in any performance review.

[00:10:23] Speaker 00:
It doesn't appear in any written document.

[00:10:25] Speaker 00:
There's absolutely no documented history of Mr. Erb having time in attendance problems.

[00:10:32] Speaker 00:
None of that transpired until the events of this case.

[00:10:36] Speaker 00:
And I think it's important that I also highlight that Mr. Erb was abruptly removed

[00:10:44] Speaker 00:
from his position effectively in early July 2018, and he had to relinquish his badge, his mobile device, his laptop, and was never again given access to his workspace.

[00:10:57] Speaker 00:
So he was not able to look through his systems to try to recreate his work days on the days at issue here in a sufficiently meaningful way.

[00:11:09] Speaker 01:
But you don't raise as an error on appeal that he was denied discovery as to that information, right?

[00:11:14] Speaker 00:
That's true, but we did cite it, that Mr. Erb sought to compel that kind of information at the MSPB, but that was denied.

[00:11:24] Speaker 00:
And it's my understanding that normally will not be treated as reversible error.

[00:11:27] Speaker 00:
But it's in keeping with the theme of this case, which is that Mr. Erb has walked out in July 2018

[00:11:38] Speaker 00:
Abruptly, taken by surprise, he's just recently represented the agency overseas in Doha, Qatar.

[00:11:45] Speaker 00:
He's gotten an outstanding performance rating, and all of a sudden he's walked out and he's not allowed to look through his systems to try to recreate what exactly he did on all these dates ranging from January to June 2018, or July, excuse me.

[00:12:04] Speaker 00:
But nonetheless, he has been able to adduce significant evidence with respect to each of these dates to support his contention that he was working a full day.

[00:12:15] Speaker 00:
And he certainly did not intend to defraud the government of a day's work.

[00:12:21] Speaker 00:
He always delivered at the highest level on each of his days working for the agency.

[00:12:30] Speaker 01:
Do you want to save time for the role here?

[00:12:34] Speaker 00:
Yes thank you.

[00:13:25] Speaker 04:
Go ahead.

[00:13:29] Speaker 04:
Good morning, Your Honors.

[00:13:30] Speaker 04:
May it please the Court?

[00:13:32] Speaker 04:
We respectfully request that the Court affirm the decision of the Board below.

[00:13:36] Speaker 01:
Okay, so it seems to me that with respect to Charge 1, there are a number of specifications here where it seems as though the finding

[00:13:51] Speaker 01:
pretty speculative testimony.

[00:13:55] Speaker 01:
Take, for example, the permission to telework issue.

[00:13:59] Speaker 01:
And you have Yarrow's specifying as to some of the specifications that he couldn't recall that Mr. Erb had received permission to telework.

[00:14:10] Speaker 01:
And he keeps saying, well, this was a couple of years ago.

[00:14:12] Speaker 01:
I mean, how can that be substantial evidence that he didn't have permission to telework?

[00:14:19] Speaker 04:
Certainly, Your Honor.

[00:14:22] Speaker 04:
To clarify, you had asked before about, are there two allegations underneath each specification?

[00:14:30] Speaker 04:
And I disagreed slightly with your honor's characterization.

[00:14:34] Speaker 04:
I think it's important in answering your question.

[00:14:36] Speaker 04:
It's not that for each specification, the allegation is he did no work whatsoever, or that he teleworked without permission.

[00:14:43] Speaker 04:
The allegation for each one is that he did not do what he certified.

[00:14:48] Speaker 04:
For 10 of those, it was an in-office, and one that was telework.

[00:14:53] Speaker 04:
And then it was that he did not do a full tour of duty.

[00:14:56] Speaker 01:
So for some of the... But the theory is that if he had permission to telework, then it wasn't material that he falsely entered on his time sheets, or inaccurately entered on his time sheets that he worked in person.

[00:15:09] Speaker 01:
So that's how it becomes important as to whether he had permission to telework or not.

[00:15:14] Speaker 01:
And as to some of these specifications, there's a finding of no permission to telework, which it seems to me is based on nothing but speculation by Yeros, that he can't recall two years later that he gave permission to telework.

[00:15:33] Speaker 01:
That really is difficult for me to see how that's substantial evidence.

[00:15:37] Speaker 04:
I understand, Your Honor.

[00:15:39] Speaker 04:
For some of the specifications, I think the evidence is very clear that Teller was not authorized.

[00:15:44] Speaker 01:
I agree that there are some, but there are many where it's not.

[00:15:49] Speaker 04:
Your Honor, I recently disagreed with the idea that it applies to many, but I do agree it applies to a couple.

[00:15:54] Speaker 04:
For example, with regards to specification seven and with regards to, one moment,

[00:16:13] Speaker 04:
So with respect to specification 7, Your Honor, I agree.

[00:16:19] Speaker 04:
The specification that Mr. Yaros was his supervisor for is specification 6 through

[00:16:33] Speaker 01:
And in some respects, the evidence isn't supported by substantial evidence.

[00:16:38] Speaker 04:
Well, I disagree with that statement, Your Honor.

[00:16:40] Speaker 04:
But I do agree that for a couple of them, there is not a specific finding or there's not evidence that it was not.

[00:16:48] Speaker 04:
There's not clear evidence that Teller was not approved for that particular day.

[00:16:51] Speaker 01:
So let's take the other issue about a full tour of duty.

[00:16:54] Speaker 01:
As to some of these, there is evidence that he logged in repeatedly to the system.

[00:17:00] Speaker 01:
And there's also evidence that the system didn't recall log-offs.

[00:17:06] Speaker 01:
So how can it be, in those situations where he logged into the system half a dozen times throughout the day, that there's evidence to support the notion that he didn't work a full tour of duty?

[00:17:19] Speaker 04:
Your Honor, the Council argued in the papers the significance of the lack of the... No, answer my question.

[00:17:27] Speaker 01:
How is it with respect to those

[00:17:29] Speaker 01:
specifications where there's repeated logging on to the system and the system doesn't tell you when he logged off that he didn't work a full tour of duty.

[00:17:39] Speaker 01:
What's the evidence?

[00:17:41] Speaker 04:
Your Honor, the administrative judge looked at the logins, but also looked at the email traffic as well as the testimony.

[00:17:49] Speaker 04:
And below, Mr. Erb's story wasn't that he was actually in the system for an extended period of time.

[00:17:55] Speaker 04:
His story was rather that he worked outside of the system.

[00:17:59] Speaker 01:
And so- Well, there is such testimony as to some of these things, but there are some specifications where he logged into the system repeatedly throughout the day.

[00:18:06] Speaker 01:
Where is the substantial evidence that on those days he didn't work a full-tour of duty?

[00:18:15] Speaker 04:
Your Honor, it depends on which specification we're speaking about, but for the ones where there's multiple logins, it's also the lack of email traffic and the specific testimony from the supervisors.

[00:18:27] Speaker 01:
There's also email traffic on those days.

[00:18:30] Speaker 04:
uh... you're right uh... there are emails but it is minimal uh... for example i i i just don't understand your position uh... certainly your honor half a dozen logins emails phone calls where's the evidence that it didn't work well your honor for most of these specifications it is not that there are there are only a couple of logins

[00:18:56] Speaker 04:
For the emails, it's only a couple in there.

[00:19:00] Speaker 04:
What the administrative judge found is that they were short.

[00:19:02] Speaker 04:
They tended to be not about substantive work, jokes, or about a job he was applying for, and so the nature of the emails.

[00:19:11] Speaker 01:
You're not being specification specific.

[00:19:14] Speaker 01:
Yes, there are some specifications where there's a plausible

[00:19:23] Speaker 01:
So let's assume for the moment that we find that some of these specifications should not have been sustained if there was no substantial evidence.

[00:19:30] Speaker 01:
Where do we go?

[00:19:32] Speaker 01:
As I understand it from the cases, we can sustain the charge even if one specification is sustained, right?

[00:19:39] Speaker 04:
Yes, Your Honor.

[00:19:40] Speaker 01:
Okay, but how does that affect the penalty?

[00:19:43] Speaker 01:
That's the problem.

[00:19:44] Speaker 01:
Because if there's only one specification sustained,

[00:19:57] Speaker 04:
Well, in my understanding of the case law, the penalty is really tied to the charge.

[00:20:02] Speaker 04:
But I also think it's significant here that the administrative judge found credible that this was a repeated pattern of behavior even outside of the specifications.

[00:20:12] Speaker 04:
And so even if your honor has only sustained certain specifications, it's not the case that these are then isolated instances.

[00:20:20] Speaker 04:
What the administrative judge found is that this was actually a repeated pattern of behavior.

[00:20:25] Speaker 04:
which I think is significant.

[00:20:27] Speaker 04:
So it is my understanding or honor that under the case law, that if both charges are sustained, that the penalty, it still goes to whether it is disproportionate to the fence, such that it is outside the bounds of reasonals.

[00:20:47] Speaker 04:
And we would submit that it is a reasonable penalty

[00:20:52] Speaker 01:
Even the chance that you sustain some but not all the charges.

[00:20:58] Speaker 01:
There's an issue about health.

[00:21:00] Speaker 01:
I didn't see cases that dealt with a situation where it sustained some of the specifications sufficient to sustain the charge, but not all.

[00:21:09] Speaker 01:
Are you aware of any cases?

[00:21:12] Speaker 04:
No, Your Honor.

[00:21:13] Speaker 04:
When I looked at this in preparing for this argument, Your Honor, what I found is that the court can sustain a charge based on even just one specification, and that as long as the charges were sustained, the penalty is based on the charges rather than the number of specifications that are sustained.

[00:21:30] Speaker 04:
So I'm not aware of a case, Your Honor, that ties the penalty to specifications rather than to the charge itself.

[00:21:39] Speaker 04:
But if this is something Your Honor would like more information about, we can certainly submit something after argument that delves into this further, because it's not fleshed out in the parties' briefs.

[00:21:51] Speaker 03:
To what extent there was a dispute below about

[00:21:55] Speaker 03:
the telework logging on, whether it was one time or as many as four times during a given day, to what extent was there a dispute about whether those single or multiple logons represented enough of the full day that we should consider the person as having been logged on the full day.

[00:22:21] Speaker 04:
Certainly, Your Honor.

[00:22:22] Speaker 04:
The way the record developed below was not about how long Mr. Urb was in the system.

[00:22:27] Speaker 04:
He appeared to concede that the few logins represented minimal time in the system.

[00:22:33] Speaker 04:
It was not developed.

[00:22:36] Speaker 04:
He didn't concede that, Your Honor.

[00:22:37] Speaker 04:
I'm saying his explanation wasn't that he was in the system for an extended period of time.

[00:22:41] Speaker 04:
His explanation was he was working outside of the system.

[00:22:44] Speaker 04:
And that is what the administrative judge found not credible.

[00:22:47] Speaker 04:
So my point was that this was not explicitly addressed in the hearing, Your Honor.

[00:22:52] Speaker 04:
Exactly.

[00:22:55] Speaker 04:
whether he was in the system for entire days.

[00:22:59] Speaker 04:
We do not know exactly when he logged out, but the issue below was rather did, with minimal time in the system, was there evidence that he was teleworking a full day, and Mr. Erb explained that he was working from his phone.

[00:23:14] Speaker 04:
and working on projects outside of the system, and the administrative judge found that not credible, and instead credited the testimony of his supervisors that said that you can perform some tasks outside of the system, but really to perform substantial work, you really need to be in the system.

[00:23:31] Speaker 02:
Is there evidence about whether besides logging in and logging off, there's an electronic means

[00:23:44] Speaker 02:
checking or identifying numbers of communications with, numbers of uses of the system, communications to databases or that sort of thing.

[00:23:59] Speaker 04:
No, Your Honor, that was not in the record.

[00:24:00] Speaker 04:
We have the logins.

[00:24:02] Speaker 04:
We have email communications.

[00:24:03] Speaker 04:
But there was not evidence about other time in the system.

[00:24:08] Speaker 04:
It's my understanding that it's because, like many government systems, the computer locks if you're not actively using it.

[00:24:14] Speaker 04:
And so the way the testimony unfolded, everyone seemed to perceive with the understanding that you would expect to have many logins throughout the day, which is why, when Mr. Urban addressed that, he said- Where is that?

[00:24:28] Speaker 01:
I'm sorry, Your Honor.

[00:24:30] Speaker 01:
This is my point, Your Honor, is I'm saying that everyone appeared in the hearing to be testifying, no one specifically... No, Your Honor.

[00:24:46] Speaker 01:
It is not explicitly addressed.

[00:24:51] Speaker 01:
Correct.

[00:24:54] Speaker 04:
Your Honor, it is correct that we do not have a specific log out time.

[00:24:59] Speaker 04:
However, I do not agree that that means that Mr. Erb was in the system all day long, nor was that his explanation.

[00:25:08] Speaker 04:
Both at the hearing, but also if you look at his response to notice of proposed removal, he explains that he was working on his phone or on these outside projects.

[00:25:16] Speaker 04:
He wasn't alleging that he logged in at 8 AM

[00:25:19] Speaker 04:
and then continued working all day long, and it never locked.

[00:25:22] Speaker 04:
And that's why there's only one login.

[00:25:24] Speaker 04:
So my point is that this was not explicitly addressed, Your Honor.

[00:25:28] Speaker 04:
So that testimony about how many logins you would have explicitly or with the log off times was not specifically addressed.

[00:25:37] Speaker 01:
Well, give us an example of his response to the specification where he says, I was working full time all the time.

[00:25:47] Speaker 01:
Certainly, Your Honor.

[00:25:48] Speaker 01:
I know that exists.

[00:25:55] Speaker 04:
Certainly.

[00:25:55] Speaker 04:
As a brief example, Your Honor, on Appendix 137, which is the response to notice of proposed removal, and I'm just happy to put to that first, Mr. Urge's explanation was, is the telework software that FinCEN uses... What I'm sorry, what did you want?

[00:26:23] Speaker 04:
137.

[00:26:24] Speaker ?:
Okay.

[00:26:25] Speaker 01:
uh... in the fall uh... uh... explanation about working on a project this is really hard where it's uh... uh... uh... uh... uh...

[00:27:03] Speaker 04:
One moment, Your Honor.

[00:27:11] Speaker 01:
I mean, I'm looking at specification number three in this.

[00:27:17] Speaker 01:
139, depending on 139, he says he worked the full day and received a little commission of telework, logged into the system three times,

[00:27:33] Speaker 04:
I'm sorry, what page are you on, Your Honor?

[00:27:35] Speaker 01:
139.

[00:27:44] Speaker 01:
It says it was kicked off the system.

[00:27:46] Speaker 01:
Mm-hmm.

[00:27:49] Speaker 04:
Yes.

[00:27:49] Speaker 04:
So for Institution 3, he says he was kicked off of the system.

[00:27:52] Speaker 04:
He was likely kicked off of the system and continued working.

[00:27:55] Speaker 04:
And then he references the emails.

[00:27:56] Speaker 04:
And the court looked at those emails and found that the emails

[00:28:00] Speaker 04:
generally were not substantive or more minimal, and generally did not reflect substantive work.

[00:28:06] Speaker 04:
Mr. Irv says with regard to specification four that he accessed the system in between meetings, or I'm sorry, around four after his interview, and he talks about the emails.

[00:28:23] Speaker 04:
And then he also says that he was working on these special projects.

[00:28:26] Speaker 04:
And that's what I mean, Your Honor, about saying

[00:28:30] Speaker 01:
Generally, he's pointing to his work from his phone and more of the special projects that are outside the system.

[00:28:44] Speaker 01:
in between the two meetings?

[00:28:52] Speaker 04:
Yes, Your Honor.

[00:28:52] Speaker 04:
Specification 8 is where there is, I agree, the most nuanced of the specifications.

[00:29:01] Speaker 03:
Does that make the word for weakest?

[00:29:05] Speaker 04:
Well, Your Honor said that there is the most evidence here for Mr. Erb doing work.

[00:29:10] Speaker 04:
And this is what I wanted to clarify from where you were starting with Ms.

[00:29:15] Speaker 04:
Watson before, is that it's not that the administrative judge found that he did no work every day.

[00:29:20] Speaker 04:
It's that the administrative judge found that for e-specification, his certification, what he certified was incorrect, and that he did not work a full two-hour duty.

[00:29:30] Speaker 01:
But take specification eight.

[00:29:37] Speaker 01:
What's the evidence?

[00:29:39] Speaker 04:
So, Your Honor, there was a 20-minute meeting at Treasury, and then Mr. Erb claimed that he attended a panel from 1 to 4, and that he accessed the system.

[00:29:51] Speaker 04:
The Administrative Judge looked at that evidence and concluded that he did not work a full tour of duty, but I agree that that one is where there is the most evidence of Mr. Erb performing work.

[00:30:04] Speaker 04:
in contrast to, for example, specification number seven, where Mr. Erb logged in once at 813 in the morning and sent one email that was four sentences long.

[00:30:17] Speaker 04:
And so I think it's, we have to go really specification by specification, your honor.

[00:30:27] Speaker 04:
So for example.

[00:30:28] Speaker 01:
Do you agree that some of the specifications are supported by substantial evidence?

[00:30:33] Speaker 04:
No, Your Honor.

[00:30:34] Speaker 04:
I do not agree that the assessments were not supported by substantial evidence.

[00:30:38] Speaker 04:
However, when Your Honor asked me, do I agree that there is evidence that Mr. Erb worked, did perform work on certain of the days, I would agree with that statement, Your Honor.

[00:30:50] Speaker 01:
But again, because the specification was- The burden is not on him to show he worked a full day.

[00:30:55] Speaker 01:
It's the burden is on the government to show he didn't.

[00:30:59] Speaker 01:
And on these days where he logged in repeatedly,

[00:31:03] Speaker 01:
and also send emails.

[00:31:05] Speaker 01:
And on that day when specification eight weren't at the meeting, it seems quite special that he's saying he didn't want to put it back.

[00:31:16] Speaker 04:
You know, I understand.

[00:31:17] Speaker 04:
I take your point with regards to specification eight.

[00:31:19] Speaker 04:
And I would just say that it's not the agency's burden to provide the precise amount of time that he was logged into the system every day or the precise amount of time he was exactly working.

[00:31:29] Speaker 04:
The burden was to show that he falsified his time report, which is what they did.

[00:31:33] Speaker 04:
He certified 10 false time cards.

[00:31:36] Speaker 04:
Nine of which said that he was working a full day of regular in-office time, but he never entered the facility.

[00:31:41] Speaker 04:
For many of those, he claimed he was teleworking, but there was minimal evidence to support that he did minimal of any work.

[00:31:50] Speaker 04:
And then for one of the days, for specification 11, I did just want to clarify something that was said before.

[00:31:56] Speaker 04:
On that one, he certified a timesheet saying he teleworked a full-tour duty.

[00:32:02] Speaker 04:
So I think there was a reference before about

[00:32:04] Speaker 04:
all of them saying that he was in the office.

[00:32:06] Speaker 04:
And that's not quite right.

[00:32:07] Speaker 04:
11 is that he certified that he worked a full tour of teleworking.

[00:32:12] Speaker 04:
But he agrees he was not working that day.

[00:32:13] Speaker 04:
He was actually on leave.

[00:32:15] Speaker 04:
So for example, for specification 11, there's a service conceded he was actually on leave that day.

[00:32:21] Speaker 04:
And instead, it certified a full.

[00:32:25] Speaker 04:
No, for that one, it was annually, Your Honor.

[00:32:27] Speaker 04:
It's specifications nine and 10, where he certified that he worked five hours in the office and four hours of sick leave.

[00:32:35] Speaker 04:
But in reality, he says that he teleworked those days.

[00:32:39] Speaker 04:
And he did not log into the system.

[00:32:43] Speaker 04:
And I believe there's only one email over the two days.

[00:32:45] Speaker 04:
And then he did not attend mental appointments.

[00:32:48] Speaker 03:
How common was telework in this office during this time?

[00:32:51] Speaker 03:
I mean, nowadays, obviously, people are teleworking one, two, three, four days a week.

[00:32:56] Speaker 03:
What about in this office in this year?

[00:33:00] Speaker 04:
There's not evidence about the exact amount of time that people were teleworking, but it appears there was a flexible telework policy at the time.

[00:33:11] Speaker 04:
There is testimony.

[00:33:13] Speaker 04:
that the employees just had to request approval from their supervisors in advance.

[00:33:20] Speaker 04:
And the supervisor had to approve their ability to telework.

[00:33:23] Speaker 04:
And then if that was not possible, they could have a verbal approval that had to be followed up in writing.

[00:33:28] Speaker 04:
So the evidence is that individuals, including Mr. Erb, did have permission to telework with their supervisor's approval.

[00:33:35] Speaker 04:
But there's not evidence in the record regarding exactly how frequently it occurred.

[00:33:43] Speaker 04:
I believe Mr. Irv testified that he generally testified at telework about how frequently he did over a period of time, but I don't have a statistic about how common the system was.

[00:33:58] Speaker 04:
Yes, Your Honor.

[00:33:58] Speaker 04:
So his father had died in 2015.

[00:34:03] Speaker 04:
And so Mr. Crosby agreed that he had allowed Mr. Erb some flexibility.

[00:34:08] Speaker 04:
Normally you're required to telework from your home if you get permission to telework.

[00:34:11] Speaker 04:
But he had allowed Mr. Erb at times to telework from Pennsylvania.

[00:34:15] Speaker 04:
But Mr. Crosby testified that Mr. Erb still had to request permission to telework in advance in writing that he was not excused from that requirement.

[00:34:26] Speaker 04:
The flexibility was that he was permitted at times to telework from Pennsylvania instead of from Virginia.

[00:34:30] Speaker 04:
and he still had to certify his timecard record.

[00:34:34] Speaker 02:
So for some of the specifications where there's some evidence of logging in and maybe a few emails, did the relevant supervisor or anybody for the government explain why in that circumstance

[00:34:52] Speaker 02:
It sure looked like there wasn't work throughout the day because, for example, ordinarily you would see the following kind of activity.

[00:35:03] Speaker 02:
There was none of that.

[00:35:05] Speaker 02:
Something that fills in

[00:35:09] Speaker 02:
that provides a basis for an inference that the small number of objective things, the logins, emails, a supervisor saying that really is not what we would expect to see from a full day's work.

[00:35:27] Speaker 02:
Something on that.

[00:35:28] Speaker 04:
Your Honor, that was not asked of the supervisors at the hearing, so that specific testimony you're looking for is not in the transcript.

[00:35:34] Speaker 04:
Instead, what was being asked from the supervisors is, could he do substantial work or a full day's work from his phone or outside of the system?

[00:35:43] Speaker 04:
So that was the series of questions that was put to his supervisors.

[00:35:47] Speaker 04:
There was not explicit testimony about why it is the

[00:35:56] Speaker 04:
minimal number of logins represented minimal time in the system.

[00:36:01] Speaker 04:
Because instead, again, the focus was on whether one could work outside of the system.

[00:36:06] Speaker 01:
So let's take specification three as just an example.

[00:36:09] Speaker 01:
He logged into the system four times in the morning and the afternoon.

[00:36:15] Speaker 01:
And he sent six minutes emails.

[00:36:23] Speaker 01:
OK?

[00:36:23] Speaker 01:
What's the evidence there that he didn't work the whole day?

[00:36:27] Speaker 04:
Your Honor, the administrator did consider that and found that those emails showed some activity.

[00:36:34] Speaker 04:
But because the email traffic was non-substantive.

[00:36:42] Speaker 01:
But it shows he was working.

[00:36:45] Speaker 04:
Yes, Your Honor.

[00:36:45] Speaker 01:
Again, it wasn't.

[00:36:46] Speaker 01:
And they won't do this system four times.

[00:36:47] Speaker 01:
He may have been on the

[00:36:55] Speaker 04:
Your Honor, respectfully, I appreciate your point.

[00:36:58] Speaker 04:
We do not know exactly when he longed off.

[00:37:04] Speaker 04:
But what the administrative judge found instead was that he could not.

[00:37:19] Speaker 04:
Unfortunately, there is not testimony that you're looking for.

[00:37:23] Speaker 04:
People do not explain why it is, exactly how many instances you would expect someone to log in.

[00:37:27] Speaker 04:
But I will say the number of logins that you see, 808-843-924, shows that you would expect someone to be logging in if you're actually at your computer.

[00:37:40] Speaker 04:
Yes, Your Honor.

[00:37:41] Speaker 04:
My point is that the three that are close together, it is my understanding that's generally what you're expecting to see, but that is not, it was just not addressed at the hearing, Your Honor.

[00:37:50] Speaker 04:
Like I said, instead, what was developed was whether one could work outside the system, and that's where Mr. Yaros and Mr. Crosby testified that to justify a full day of work, you have to be logged into the network.

[00:38:06] Speaker 04:
and that all the forms are attached outside of it, substantive work.

[00:38:11] Speaker 01:
He was logged into the system.

[00:38:14] Speaker 04:
Respectfully ordered, he did log into the system, but what the administrative judge found was that he was, that reflected minimal time in the system, those logins.

[00:38:27] Speaker 04:
It is not.

[00:38:28] Speaker 03:
What happened in specification six, where he was telling some coworkers he was going

[00:38:35] Speaker 03:
He was teleworking because he was sick, but then was on an email chain with multiple employees.

[00:38:46] Speaker 03:
But then when the conversation turned to him saying he was sick, he removed his supervisors from the email chain.

[00:38:54] Speaker 03:
What's that all about?

[00:38:56] Speaker 04:
Yes, Your Honor.

[00:39:05] Speaker 04:
I'm afraid I don't quite understand what you're saying.

[00:39:08] Speaker 03:
I guess what I'm trying to figure out is why are we supposed to take some relevance from the fact that the AJ said that in this email chain, he removed his supervisors from the email chain when he started talking about how he was sick and would be working from home.

[00:39:30] Speaker 04:
Yes, Your Honor.

[00:39:30] Speaker 04:
So that's on appendix page 17.

[00:39:33] Speaker 04:
This is in response to Mr. Ibb's general claim that he had authorization on these days to telework.

[00:39:39] Speaker 04:
So for this particular specification, the administrative judge found that he had not made a specific claim of being authorized on this day.

[00:39:49] Speaker 04:
it's noteworthy that the email chain where he was telling his colleagues he removed his supervisor.

[00:39:54] Speaker 04:
I believe the inference therefore being that he specifically did not get permission from his supervisor or even notify his supervisor that day because he removed his supervisor from the email chain.

[00:40:04] Speaker 04:
So it's to rebut the idea that on that particular day he had authority to telework that day.

[00:40:17] Speaker 01:
Thank you.

[00:40:17] Speaker 04:
Thank you, Ernest.

[00:40:40] Speaker 00:
Your honors, if I may briefly, with respect to specification six, which you were just discussing, the emails referenced in that, I believe, appear at 186 in the appendix.

[00:40:58] Speaker 00:
Mr. Ur was corresponding with Ann Martin on that because if you look at the previous emails they were corresponding about a meeting that the two of them were meant to attend, not his supervisor.

[00:41:10] Speaker 00:
So that would be the very reasonable explanation for why he corresponded with the person that he did, who was his second-line supervisor.

[00:41:23] Speaker 00:
I'd also like to highlight that the decision maker, Mr. El-Hindi, testified repeatedly that he did not know how much Mr. Erb worked on any of the specific dates at issue here.

[00:41:35] Speaker 00:
And the agency has acknowledged that the allegation isn't that he didn't work, but they don't know how much he worked.

[00:41:40] Speaker 00:
And again, we would say that that is putting the burden on him yet again.

[00:41:45] Speaker 00:
I'd also like to cite a decision from this court, Tartaglia versus Department of Veterans Affairs, which the MSPB cited.

[00:41:58] Speaker 00:
And in that case, there were two charges against the appellant.

[00:42:03] Speaker 00:
One was overturned.

[00:42:04] Speaker 00:
One was sustained, but a subset of the specifications of that charge were sustained.

[00:42:12] Speaker 00:
And ultimately, one specification was sustained, that he had abused his authority by having a subordinate drive him in a government vehicle for personal errand.

[00:42:22] Speaker 00:
This court determined that removal should be vacated in that case.

[00:42:26] Speaker 00:
I'd also direct attention to the case of Rigliano versus USPS from the MSPB from 1988.

[00:42:40] Speaker 00:
That case got remanded to determine if the appellant had known that his spouse had forged a doctor's note for him.

[00:42:51] Speaker 00:
So I bring these up to suggest that

[00:42:55] Speaker 00:
you know certainly our position is that vacating the penalty is appropriate but also remanding for determination of what's appropriate I would suggest is a is an option in this case.

[00:43:07] Speaker 02:
Can I just clarify?

[00:43:08] Speaker 02:
Yeah.

[00:43:09] Speaker 02:
So vacating the board's decision goes only so far as to send the matter back to the board.

[00:43:17] Speaker 02:
For the board to determine

[00:43:20] Speaker 02:
whether in the absence of any particular specifications that we might find insufficiently proved, the removal remedy should be upheld.

[00:43:30] Speaker 02:
That's not a vacating of the removal for a new decision by the deciding official.

[00:43:41] Speaker 00:
Not the deciding official.

[00:43:43] Speaker 00:
And I probably didn't communicate it well.

[00:43:45] Speaker 00:
But I was suggesting that the removal action should be vacated.

[00:43:50] Speaker 00:
And it could be appropriate to remand to the MSPB to determine the appropriate penalty under the circumstances if it's determined that not all of the specifications are upheld.

[00:44:02] Speaker 02:
And there's some legal standards governing how the board

[00:44:07] Speaker 02:
decides that, right?

[00:44:09] Speaker 00:
Within the bounds of reasonableness is my understanding of the standard there.

[00:44:17] Speaker 00:
I mentioned the Tartaglia case because that is one in which this court determined that removal was inappropriate and that was reversed because

[00:44:32] Speaker 00:
not all the specifications were sustained and the one that was was not serious enough to warrant removal in that case.

[00:44:39] Speaker 01:
Specifications or charges?

[00:44:42] Speaker 00:
In this case, specifications.

[00:44:44] Speaker 00:
That appellant had two charges against him.

[00:44:47] Speaker 00:
Only one charge was sustained and only

[00:44:54] Speaker 00:
The board sustained a subset of the specifications but also sustained the removal and this court found that that was not a

[00:45:14] Speaker 00:
within that was not reasonable, that removal was not a reasonable penalty given those circumstances.

[00:45:21] Speaker 00:
And we would, you know, the facts are certainly not identical, but we would say the analysis is similar.

[00:45:29] Speaker 00:
If this court determines that these specifications are not all sustainable, that the removal action should not be as well.

[00:45:40] Speaker 00:
And in this regard, I would like to cite to appendix page 465, which is the agency's table of penalties.

[00:45:51] Speaker 00:
for these charges.

[00:45:56] Speaker 00:
The table, the range of penalties, it's page 465 in the appendix.

[00:46:02] Speaker 02:
I don't have a 465 in my appendix.

[00:46:04] Speaker 00:
Understood.

[00:46:04] Speaker 00:
Well, it's not part of the appendix that was cited in the brief.

[00:46:08] Speaker 00:
But it's in the record, and I'll represent to you that the range of penalties according to the agency for

[00:46:20] Speaker 00:
Time card fraud, which is falsification of a government record, ranges from written remand to removal.

[00:46:28] Speaker 00:
So that's, I would say, essentially the full range of penalties, but depending on how egregious the violation is.

[00:46:35] Speaker 01:
And if I may briefly... It doesn't attempt to quantify it.

[00:46:39] Speaker 00:
It doesn't attempt to quantify it?

[00:46:40] Speaker 00:
Yeah.

[00:46:41] Speaker 00:
The range is articulated as written remand to removal.

[00:46:44] Speaker 01:
So it doesn't say, you know, three instances of misstatement.

[00:46:48] Speaker 01:
usually brings about a 14-day suspension.

[00:46:53] Speaker 00:
That is a good point of clarification.

[00:46:56] Speaker 00:
What I've cited is for a first offense.

[00:47:00] Speaker 00:
For a second offense, the agency cites 30-day suspension to removal.

[00:47:05] Speaker 00:
And for a third offense, removal.

[00:47:08] Speaker 00:
If I can briefly address charge two.

[00:47:12] Speaker 01:
I think the most