[00:00:03] Speaker 05: Our next case for argument is 22.1187 Gomez Rodriguez versus the Army. [00:00:17] Speaker 02: May it please the court. [00:00:19] Speaker 02: I'm here today to discuss with you the lower court, the MSPB, and the agency deciding official that did not analyze 11 comparators under the disparate penalty analysis. [00:00:36] Speaker 02: This is Douglas Factor 6, the consistency of the penalty opposed on other members within that department of similar offenses. [00:00:47] Speaker 02: Without this analysis, we argue that the removal of Gomez Rodriguez exceeds the bounds of reasonableness, and no nexus can be found. [00:01:01] Speaker 02: when the incident occurred where a letter was written to the base general on April 19th by then Officer Cobb alleging wrongdoings in hiring and also hiring an officer that was under investigation for theft at another base. [00:01:27] Speaker 02: The investigation started on a whistleblower complaint, but then brought in Gomez Rodriguez as he was accused of one, searching an alert system, which is a law enforcement database [00:01:43] Speaker 04: to find out this particular officer's... Well, I appreciate your recitation, but I think we're all familiar with the facts. [00:01:51] Speaker 04: Yes. [00:01:51] Speaker 04: Where's the shortcoming here? [00:01:53] Speaker 04: Those allegations with regard to conduct unbecoming and the other matters were largely based on credibility determinations by the administrative judge. [00:02:03] Speaker 02: Yes. [00:02:03] Speaker 04: So what's the basis for reversing those determinations? [00:02:08] Speaker 02: Well, on reversing the credibility determinations, it is absence of the facts of the record. [00:02:17] Speaker 02: The administrative judge stated that Gomez Rodriguez would say just about anything to save his job. [00:02:24] Speaker 02: However, the record reflects that the reasoning is incorrect. [00:02:29] Speaker 02: Because number one, it states that he did not make any DUI arrest that week when he was in DUI training class. [00:02:39] Speaker 02: However, that logic fails because police officers do continual training. [00:02:44] Speaker 02: And what occurred is that if that logic continues, then if he was in training for domestic violence, he would have to make a domestic violence arrest that week. [00:02:53] Speaker 02: Also, Officer Pereca confirmed that, in fact, Gomez Rodriguez was in the class and that he, in fact, gave him those instructions to search the name by no uncertain means. [00:03:09] Speaker 02: So there is no divergent testimony as to between what Officer Pereca says and Officer Gomez Rodriguez. [00:03:18] Speaker 02: And then as to the nature of the search, Deputy Chief Russ testifies on what is a name check search and also what is what he considers unauthorized search, not pointing to any type of policy, just what he believes it should be the policy. [00:03:42] Speaker 02: That type of credibility determination is absence of the facts that are actually in the record. [00:03:49] Speaker 02: And actually, it shows the comparators that are doing name check search, 11 of those, and then as far as the type of punishment that they're actually received within that division. [00:04:04] Speaker 02: and to that the supervisors were not your first line supervisors, but they were division chiefs. [00:04:12] Speaker 02: So this effectively set the policy for the division. [00:04:16] Speaker 02: The deputy director of DES is over all police officers and guards. [00:04:20] Speaker 02: The deputy garrison commander is over [00:04:23] Speaker 02: DES. [00:04:24] Speaker 02: So when they need the determination to remove, it is not a patchwork of supervisory change to compare what happened. [00:04:33] Speaker 02: What happens is, is he set the policy, this is what should be the punishment for someone who does a name check search. [00:04:41] Speaker 02: So the credibility determination that he would say anything is not backed by the record, simply because the record reflects everything that Officer Gomez said is backed by a document. [00:04:54] Speaker 02: And the diverging testimony is not really diverging. [00:04:58] Speaker 02: It's just they're testifying because there is no standard operating procedure within the unit for the alert system. [00:05:07] Speaker 02: So you have officers doing one type of search, officers doing another type of search, and then you have the deputy chief saying, [00:05:14] Speaker 02: This should be the policy, but what you have is an organization and agency that has no clear policy on what individual officers should do the type of search to look up a type of case and what is authorized use. [00:05:30] Speaker 03: The Army's brief goes through, pages 22 and 23, what the audit was of these 11 others who may be misused, or I think the Army found didn't really misuse the alerts system, and has citations to evidence in the record. [00:05:45] Speaker 03: Can we rely on that as responsive to your Douglas argument and due process argument that your client was treated somehow desperately? [00:05:55] Speaker 02: I'm sorry, you're on. [00:05:56] Speaker 02: I did the first part of your question. [00:05:58] Speaker 03: The first part is I was referring you to the red brief where the army addresses at pages 22 and 23. [00:06:05] Speaker 03: Yeah. [00:06:06] Speaker 03: These 11 other possible comparators. [00:06:08] Speaker 03: Yeah. [00:06:09] Speaker 03: And their use of the alert system. [00:06:11] Speaker 03: Yes. [00:06:12] Speaker 03: And it points us to places in the record. [00:06:15] Speaker 03: that show what that audit revealed and why, at least, the Army thinks that nobody was treated dissimilarly to your client. [00:06:26] Speaker 03: And my question is, can we rely on that? [00:06:29] Speaker 02: No, because what it is is that in looking at the type of search, and this is in their allegation into [00:06:41] Speaker 02: Why he is dissimilar is that they raise unconstitutional provision of due process. [00:06:47] Speaker 02: They're saying that, well, he gave the information to another officer. [00:06:54] Speaker 02: Therefore, he's dissimilar than the other officers that were punished. [00:06:58] Speaker 02: However, that is not in the specification in the charge. [00:07:01] Speaker 02: And so what Officer Gomez was prepared to defend is, what is authorized use in official purpose? [00:07:09] Speaker 02: And when we addressed that, there was no policy for official use and official purpose. [00:07:14] Speaker 02: Those 11 comparators, particularly Officer Rodin and Officer Peliquin, they did very similar things to what Gomez Rodriguez did. [00:07:27] Speaker 02: However, what the drawing line is is that they kind of veer off into the allegation of he gave it to someone else. [00:07:36] Speaker 02: But that was not the charge. [00:07:38] Speaker 02: And so we're looking at the narrow charge of what was the authorized use and official purpose. [00:07:45] Speaker 02: For that purpose, the 11 fit within the category of name check searches and then the type of punishment that was given to each of those 11. [00:07:58] Speaker 05: So you're saying the authorized, the charge that was made didn't extend to him sharing the information he learned? [00:08:09] Speaker 02: No, it did not. [00:08:11] Speaker 04: But what about page 24 of the red brief? [00:08:14] Speaker 04: It shows that you've been arguing that there are insufficient procedures. [00:08:20] Speaker 04: But this outlines the co-vice general AR law enforcement reporting. [00:08:27] Speaker 04: And that explicitly calls out unauthorized use, which includes requests, dissemination, sharing. [00:08:34] Speaker 02: Yes, and that is true. [00:08:39] Speaker 02: However, that is a general policy banner. [00:08:43] Speaker 02: In our reply brief, we replied as far as to the second 15-6 investigation. [00:08:50] Speaker 02: What the investigator found is that each individual base is supposed to tailor their specific policy as to how the system is to be used, what type of trainings and things of that nature. [00:09:04] Speaker 02: However, there is no definitive proof that Officer Gomez Rodriguez gave information to Officer Cobb. [00:09:13] Speaker 02: In fact, cited in our reply brief that is now a final order now, the judge in Officer Cobb's case found no proof that Officer Cobb received information from Gomez Rodriguez. [00:09:27] Speaker 04: And so that... Did the judge here, did the administrative judge here make a specific finding on that? [00:09:33] Speaker 02: No, they did not. [00:09:34] Speaker 02: All right. [00:09:36] Speaker 02: And actually, to address that point, we weren't allowed, because the narrow issue was official use and official purpose, we were not allowed to address the point. [00:09:45] Speaker 02: We had witnesses lined up to testify to show that nothing passed between Gomez Rodriguez and to Officer Cobb. [00:09:55] Speaker 02: So it's an allegation that's made, but was not allowed to be explored during the hearing so we can [00:10:02] Speaker 02: prove it as we did in the Officer Cobb case, in which the judge at Independent Fact Finder found that he got the information from a separate individual through a Facebook check, not through Officer Gomez. [00:10:17] Speaker 03: You haven't challenged the evidentiary rulings, though. [00:10:21] Speaker 03: You have not challenged on appeal the evidentiary rulings about what witnesses you were allowed to call, have you? [00:10:26] Speaker 03: That's not part of your appeal. [00:10:28] Speaker 02: Part, some of them, yes, but not directly, to answer your question. [00:10:33] Speaker 02: Only on certain witnesses, like with Officer Keim and on this particular issue here. [00:10:38] Speaker 02: But where is that put at issue in your appeal? [00:10:41] Speaker 02: It's not specifically stated yet. [00:10:44] Speaker 02: It's just stated in the fact that we were denied that particular witness to testify. [00:10:52] Speaker 02: And to emphasize that point with Officer Dietrich in testifying on the credibility determinations, he was in a class with Officer Gomez Rodriguez. [00:11:03] Speaker 02: He were denied that witness. [00:11:05] Speaker 02: That's how the challenge came about to that particular thing. [00:11:08] Speaker 05: What about the government's assertion that on every single alert screen that Mr. Gomez Rodriguez encountered, it would warn him and capitals alerts then say is for official purposes only? [00:11:22] Speaker 05: So that you say that they didn't have a policy on the particular base he was on. [00:11:26] Speaker 05: But if the program itself says it won the program when you encounter the program, isn't that enough information for him to know it can only be used for official purposes? [00:11:36] Speaker 02: Yes, and part of the factual background is that he was in a DUI class. [00:11:44] Speaker 02: The instructor of the class said, look up my name to write narrative reports so you know how to write them for me. [00:11:51] Speaker 02: And later, that type of explanation and training using alerts was determined as official use and purposes. [00:12:02] Speaker 02: And that was Officer Rodin's case. [00:12:04] Speaker 02: So yes, the banner is there, but also within that banner is permissive language that at the very end of it, it states that violation of this may be subject to administrative punishment or legal proceedings. [00:12:24] Speaker 02: And so the permissive use of may shows that there is discretion as to whoever is supervising this has a discretion to say, OK, if you violate certain parts of this, we'll determine what will happen. [00:12:41] Speaker 02: But at the same time, there is no mandatory language that it is an absolute punishment. [00:12:47] Speaker 05: So the policy that banner does not say You can't do a name check search which might rely and turn up other information Your use of may sort of flies in the face of my own sort of parenting right like if I say to my kids I [00:13:06] Speaker 05: You may get in big trouble if you have that. [00:13:08] Speaker 05: I mean, I feel like they're going to know they're going to get in big trouble if they have that, or at least it's on the table. [00:13:12] Speaker 06: Yes. [00:13:13] Speaker 05: So what's the, you know, he got the alert, said you may be in trouble, and he got in trouble. [00:13:19] Speaker 05: But how does that help you? [00:13:21] Speaker 02: But in this case, using your analogy as a parent, is that if the child did everything that you asked to do right then and you instructed them to do, then you cannot come back behind him and say, well, you told me that do this name check, do this search. [00:13:39] Speaker 02: You didn't tell me my exact instructions on how to do it because I wasn't trained in that manner. [00:13:43] Speaker 02: But now I'm being punished because you decided that I found something that I wasn't supposed to find, but I did exactly what you instructed me to do. [00:13:54] Speaker 04: Wasn't this all adjudicated below? [00:13:56] Speaker 04: I mean, wasn't this all adjudicated below? [00:14:00] Speaker 04: We started a few minutes ago talking about credibility determination. [00:14:03] Speaker 04: Maybe I'm wrong, but it's my recollection there was a Colonel Ross or someone. [00:14:09] Speaker 04: I mean, there was testimony. [00:14:11] Speaker 04: that the AJ credited about whether or not this was an authorized use or not. [00:14:17] Speaker 04: And your client's testimony was in conflict with someone else's, and the judge credited the other person, right? [00:14:25] Speaker 04: Am I correctly stating at least what happened in the record? [00:14:28] Speaker 02: You're correct in that. [00:14:29] Speaker 02: And my response to that is that the record does not support the judge's determination in that, because there simply was no policy in place [00:14:38] Speaker 02: until after the removal in May. [00:14:40] Speaker 04: So you're saying there was no there was no standard against which anyone could adjudicate or judge whether or not this use was authorized or unauthorized? [00:14:49] Speaker 02: Exactly that policy did not come into play until the second AR-15-6 in May. [00:14:56] Speaker 04: So you're saying [00:14:57] Speaker 04: There's no policy in so that anybody can go in and search for any purpose they want, and they can't prosecute or the agency can't take any action as a result of that because of the absence of a policy? [00:15:08] Speaker 02: No, I would not go that far. [00:15:10] Speaker 02: What I am saying is that the parameters on the factual situation that Officer Gomez Rodriguez was searching, a name check search asked to do by his supervisor, his field training officer, there was no policy guiding and directing him to say, [00:15:27] Speaker 02: You cannot do a name check search that will allow you to get general information. [00:15:33] Speaker 02: There was no policy on that. [00:15:34] Speaker 02: So, Officer Gomez Rodriguez's intent was to look up DUI cases to find, to write better for this field training officer. [00:15:43] Speaker 02: So he wasn't off while running and searching for everything. [00:15:47] Speaker 02: He had specific instructions, which he happenstancelly came by the larceny case that came up under that training officer's name. [00:16:02] Speaker 02: So that's where, yes, the credibility determination said this. [00:16:07] Speaker 05: But however, the record reflects that there's no policy and even- So you say Officer Pereca instructed him to do a search for Pereca's own cases, right? [00:16:18] Speaker 05: Yes. [00:16:19] Speaker 05: But what about, I mean, the record also reflects that he also searched Burgess's name. [00:16:25] Speaker 05: Was his argument that he was instructed to search that as well? [00:16:28] Speaker 02: Yes, because that's also as he was looking for the same type of narratives. [00:16:33] Speaker 02: And it is in that testimony that oftentimes officers to best write for them, and Parekta testifies this, is that they will look up old cases and say, if you want to write a narrative for me, and there's several field training officers, [00:16:47] Speaker 02: and officers might switch on different shifts, is that, okay, this is how you write for officer at Corecca. [00:16:54] Speaker 02: This is how you write for officer Burgess. [00:16:56] Speaker 02: In each officer's particular, field training officer's particular, how they receive their reports, that's why they direct you to look up their own cases so that you write perfectly for them when you finish their shift. [00:17:07] Speaker 04: And so what went down here that, I mean, the problem here is he just searched by name. [00:17:12] Speaker 04: He didn't search any discrete things that his [00:17:16] Speaker 04: teacher was telling him to search. [00:17:20] Speaker 04: And you're saying that in the absence of a policy telling somebody precisely when you're supposed to search DUI for Gentleman X, you should search DUI for Gentleman X as opposed to just doing a global search about that person. [00:17:34] Speaker 02: Exactly. [00:17:35] Speaker 02: And more clarity is that there is [00:17:40] Speaker 02: officer search cases different ways and when you do a name check search just then it comes up and you have to click on it and then you see what the case is and so along with them much other information that you had no business looking at [00:17:56] Speaker 02: Right. [00:17:56] Speaker 02: Well, you don't know until you click on it. [00:17:58] Speaker 02: Yes. [00:17:59] Speaker 02: So in that sense, that's why the name check searches in 11 comparators did the exact same thing. [00:18:07] Speaker 02: And that's where the comparators come in as far as the type of reasonableness of what should happen to Gomez Rodriguez. [00:18:16] Speaker 02: So yes, they answer your question. [00:18:19] Speaker 05: OK. [00:18:19] Speaker 05: Well, you're way over time. [00:18:21] Speaker 05: Let's hear from the government. [00:18:36] Speaker 00: May it please the court. [00:18:39] Speaker 00: The issue before the court today is whether the MSPB erred when it sustained Mr. Gomez Rodriguez's removal from his position as a police officer with the Army based on two charges. [00:18:50] Speaker 00: First, conduct on becoming a law enforcement officer, and two, failure to maintain the condition of employment. [00:18:56] Speaker 04: Let's turn to the comparators. [00:18:59] Speaker 04: Is it correct that there were 10, 11, I forget the number of comparators who had done searches precisely the way Mr. Gomez had done them, but no action was taken against him? [00:19:10] Speaker 04: One, is that correct? [00:19:11] Speaker 04: And two, if that's so or close to being so, what's the answer to that? [00:19:16] Speaker 00: No, Your Honor, that's not accurate. [00:19:19] Speaker 00: With respect to the comparators that my friend refers to, those comparators came from a subsequent AR 15-6 audit, which was in May of 2021. [00:19:34] Speaker 00: And Mr. Gomez Rodriguez was groomed in February 2021. [00:19:37] Speaker 00: So the subsequent analysis of these comparators [00:19:42] Speaker 00: was months after the initial, or almost a year after the initial investigation, and months after Mr. Gomez Rodriguez was removed. [00:19:51] Speaker 00: And as to... Well, the report was after. [00:19:56] Speaker 05: The report, right, was after. [00:19:58] Speaker 00: The report states that it was initiated in May 2021 and concluded in June 2021. [00:20:09] Speaker 04: I don't understand, are you saying that as a matter of law comparators [00:20:13] Speaker 04: only can involve conduct that occurred before the conducted issue and not after? [00:20:19] Speaker 04: I don't understand what you're making. [00:20:21] Speaker 00: Only to the extent that the deciding official could not have used those comparators if they were identified subsequent to the decision for removal. [00:20:33] Speaker 04: Was this the final decision? [00:20:35] Speaker 04: That happened subsequent to the final decision removal? [00:20:39] Speaker 04: great there's something right to you know i mean if there are right on compared with ten people did precisely the same thing and two months after they fired me for doing that uh... they thought that they've not nothing happened to any of those people [00:20:54] Speaker 04: Can I get that evidence in somewhere, even before an AJ? [00:20:59] Speaker 00: Well, Your Honor, I wanted to also turn to that point, which is that there are no direct comparators to Mr. Gomez Rodriguez that were identified in the subsequent investigation. [00:21:13] Speaker 00: And in fact, some of those officers were disciplined. [00:21:17] Speaker 00: that don't have evidence in the record as to what ultimately resulted from those separate cases. [00:21:23] Speaker 04: Well, did somebody make a finding that those comparators were not relevant comparators? [00:21:27] Speaker 00: Yes, Your Honor. [00:21:29] Speaker 00: The testimony before the board from the deciding official was that Mr. Gomez Rodriguez's conduct was assessed and was the focus, and that his conduct was sufficient for his removal [00:21:45] Speaker 04: But did he also analyze that the comparators were not relevant comparators and there was a distinction to be drawn? [00:21:53] Speaker 00: The record and the testimony before the board does not get into that specific granular detail. [00:22:00] Speaker 00: Again, these comparators, at least some of those that were referenced, were identified subsequently. [00:22:05] Speaker 04: So how do you know they were different? [00:22:08] Speaker 04: Is it part of the record, the differences? [00:22:10] Speaker 00: Correct. [00:22:11] Speaker 00: The investigation is ultimately, the report is in the record. [00:22:18] Speaker 04: So it was in the record before the administrative judge. [00:22:23] Speaker 00: So in the brief, we tried to address these comparators and address the petitioner's arguments on this front and show that they were not comparators. [00:22:34] Speaker 00: So that analysis wasn't before the board. [00:22:36] Speaker 05: I'm really struggling to follow your argument. [00:22:38] Speaker 05: that these comparators as a matter of law cannot be considered either at our level or by the lower tribunal? [00:22:46] Speaker 05: Or is your argument these comparators were in fact considered? [00:22:50] Speaker 05: Which is your argument? [00:22:52] Speaker 00: The comparators were not considered. [00:22:55] Speaker 00: And I can point to the record where [00:22:59] Speaker 00: The deciding official states that the information presented for his decision did not address these other comparators. [00:23:10] Speaker 00: And this was the testimony in a hearing before the board. [00:23:14] Speaker 03: And your answer. [00:23:18] Speaker 03: If you have a record site for where you're saying the board said we're not considering the comparators, where is that? [00:23:24] Speaker 00: Mr. Harden is the deciding official, and his testimony is at appendix 465. [00:23:31] Speaker 00: I'm sorry. [00:23:32] Speaker 03: Are you saying the board did not consider the comparators, or the deciding official did not consider the comparators, or both? [00:23:41] Speaker 00: both that these comparators were not presented. [00:23:45] Speaker 00: They didn't exist at the time in the packet presented to the deciding official and did not factor in the administrative judge's decision in the main. [00:24:00] Speaker 00: The administrative judge did consider comparators with respect to the discrimination claim. [00:24:05] Speaker 05: But stop for a sec. [00:24:05] Speaker 05: I don't understand. [00:24:08] Speaker 05: So I'm looking at page 465, which you told me to. [00:24:11] Speaker 05: It's in Microscript, so there's a bunch of pages. [00:24:12] Speaker 05: Show me exactly what you want me to look at on page 465. [00:24:17] Speaker 00: Excuse me, Your Honor. [00:24:20] Speaker 00: At appendix 469, there's a lengthy discussion of comparators that begins. [00:24:26] Speaker 00: It's the nature of live testimony, so it cuts in and out. [00:24:33] Speaker 05: What page? [00:24:34] Speaker 05: I mean, 469, but there's four pages on 469. [00:24:37] Speaker 00: Which one? [00:24:38] Speaker 00: Excuse me. [00:24:39] Speaker 00: On page 193, [00:24:41] Speaker 00: And then as I understand it, counsel asked Mr. Harden, how would that have affected your analysis not having a picture of those looked at Officer Porek, his name, in there by doing that? [00:24:55] Speaker 00: And he said, sir, that would not have changed my analysis as to whether or not Officer Gomez searched the alerts. [00:25:03] Speaker 05: OK. [00:25:03] Speaker 05: Well, that's OK. [00:25:05] Speaker 05: So first off, what we see on page 193 is, unless I'm mistaken, it's Mr. [00:25:11] Speaker 05: Caldwell saying that he did not have any other, he did not have any information about comparators when he made his decision, is that correct? [00:25:20] Speaker 00: That's correct. [00:25:21] Speaker 05: Okay, so he made a removal decision, he didn't have comparators. [00:25:27] Speaker 05: I don't think that that's probably super unusual that the moving official may not know everything that's gone on across the army. [00:25:36] Speaker 05: This is the army, right? [00:25:37] Speaker 05: Like one person probably doesn't know everything. [00:25:39] Speaker 05: But then as the case moves through the process and it moves up to the ALJ or the board and the defendant becomes or petition, whatever is called in this case, becomes aware [00:25:50] Speaker 05: of all these comparators and introduces that evidence, isn't there an obligation under the Douglas Factors to then take that into account, even if they hadn't been presented to the removing official? [00:25:59] Speaker 00: Yes, Your Honor. [00:26:01] Speaker 05: And I don't think that happened here. [00:26:05] Speaker 00: The administrative judge does address other comparators, and the briefs aren't totally clear on exactly which comparators we're referring to. [00:26:16] Speaker 00: The testimony and the board addressed comparators in the context of a discrimination claim, which is not present before the court. [00:26:29] Speaker 00: But in that adjudication of the discrimination claim, the board did address the idea that there were disparate treatment across these comparators. [00:26:40] Speaker 00: And the board found that that was not available. [00:26:43] Speaker 00: So the board did consider the penalty amongst comparators and found that the agency had supported the charges by a preponderance of evidence. [00:26:55] Speaker 00: that Mr. Gomez Rodriguez did conduct unauthorized searches with an alerts and that he had been decertified from the IRP program for his misconduct. [00:27:11] Speaker 03: So the board did consider it eventually. [00:27:13] Speaker 03: And in your briefing to us, you cite to evidence in the record that you think shows that essentially there really are no comparators, right? [00:27:20] Speaker 03: Correct. [00:27:21] Speaker 00: Right. [00:27:22] Speaker 00: The board's decision does not enumerate every piece of evidence that the board considered. [00:27:28] Speaker 00: So the testimony before the board and the board's decision itself reference this kind of evidence. [00:27:35] Speaker 05: It does? [00:27:35] Speaker 05: It references comparators? [00:27:38] Speaker 00: Yes. [00:27:38] Speaker 00: Where does it do that? [00:27:58] Speaker 00: So this is at appendix 23. [00:28:10] Speaker 00: And there's a discussion of other officers who had been involved in the DCIS investigation. [00:28:20] Speaker 05: wait, I'm sorry, I'm on page 23. [00:28:23] Speaker 05: Where is the discussion of, you know, closing counsel stood up and he said there were 11 comparators alleged in this case, 11. [00:28:30] Speaker 05: He actually used a number and said these were not, these were overlooked by the deciding tribunal below. [00:28:37] Speaker 05: You've agreed that if comparators are presented, they must be part of the Douglas Factor analysis. [00:28:43] Speaker 05: So where did that occur? [00:28:52] Speaker 00: As I understand counsel's argument is that the comparators that were presented or identified as he uses the term comparators, those comparators were identified subsequent to the removal decision and the Douglas factors that were enumerated in that decision did not address those particular comparators. [00:29:21] Speaker 05: the but wait so the comparators arose after the removal decision but remember we have this dialogue in judge post had a dialogue with you and she asked wait a minute two months after I get fired it turns out there are eleven other people who were treated differently than me should I have an opportunity to introduce that evidence and have it be considered you said yes and then in response to my question you likewise said yes if it's introduced the board has to address it so so I don't think [00:29:50] Speaker 05: At least for me, right now, you're saying that because they arose after the removal doesn't seem to obviate the legal necessity of having those addressed. [00:30:02] Speaker 00: Two points, Your Honor. [00:30:03] Speaker 00: First is that the [00:30:05] Speaker 00: quote unquote, comparators were not true comparators, and that they did not have the same misconduct that Mr. Gomez Rodriguez was found guilty of. [00:30:16] Speaker 04: And how do we know that? [00:30:17] Speaker 04: And who adjudicated that? [00:30:18] Speaker 04: I mean, did somebody, the AJ, in the context? [00:30:22] Speaker 04: I mean, I'm not seeing it on page 23. [00:30:25] Speaker 04: in terms of the assessment of this? [00:30:31] Speaker 00: It's not in the administrative judge's decision. [00:30:35] Speaker 00: It arose in the subsequent AR-15-6 investigation. [00:30:46] Speaker 00: You review the charges in that investigation. [00:30:51] Speaker 00: Some of the personnel conducted searches. [00:30:56] Speaker 00: One officer conducted searches at Mr. Gomez Rodriguez's instruction, which is the closest basis for comparison. [00:31:05] Speaker 04: I'm not understanding the first part of my question, which is, where in the record is this? [00:31:12] Speaker 04: And where in the record is? [00:31:14] Speaker 04: an analysis, or you're telling us that they were all different and this was the closest. [00:31:20] Speaker 04: That's fine, but did somebody else say that? [00:31:24] Speaker 04: Like the administrative judge? [00:31:26] Speaker 00: It is not in the administrative judge's decision the analysis. [00:31:31] Speaker 04: But were the arguments made to him? [00:31:33] Speaker 04: Did he have the evidence? [00:31:36] Speaker 04: It's not clear to me when this came up. [00:31:38] Speaker 04: I mean, presumably Mr. Gomez's attorney raised this. [00:31:42] Speaker 04: Or I don't know, maybe he's saying that it was upon you to do it as an affirmative thing because of the Douglas factors. [00:31:51] Speaker 04: But where is it? [00:31:53] Speaker 04: The AJ had this stuff before on the show. [00:32:08] Speaker 00: I'm not aware of. [00:32:10] Speaker 00: the AG's review of the 15-6 investigation that was subsequent to the removal decision. [00:32:19] Speaker 04: Could I ask you just a legal question, which I really don't not sure what the answer is. [00:32:24] Speaker 04: It's the deciding official who makes the decision who's required to consider the Douglas Factors. [00:32:30] Speaker 04: So if the deciding official doesn't consider the Douglas Factors, under our law, if the AJ [00:32:38] Speaker 04: asks him, did you consider this? [00:32:39] Speaker 04: And he says, no. [00:32:40] Speaker 04: But then the AJ herself analyzes that they wouldn't have been relevant. [00:32:45] Speaker 04: Is that sufficient? [00:32:46] Speaker 04: I mean, don't we need, for the record, the deciding official's consideration of these matters, to the extent they're necessary relevant? [00:32:54] Speaker 04: You may have an argument with respect to timing. [00:32:56] Speaker 04: You may have an argument with respect to his not putting forth these arguments. [00:33:02] Speaker 04: You may have other arguments about that. [00:33:03] Speaker 04: But am I right or wrong on the law? [00:33:07] Speaker 04: We need to have the deciding official consider this. [00:33:10] Speaker 00: And Your Honor, to that point, the deciding official did consider the Douglas factors. [00:33:17] Speaker 00: There was a thorough Douglas factor. [00:33:19] Speaker 04: No, we're just talking about the correct, the correct, the comparatives, right? [00:33:25] Speaker 04: And he didn't consider the comparatives. [00:33:27] Speaker 04: And your first answer was that they happened afterwards. [00:33:33] Speaker 00: As I understand the timeline, you're on him. [00:33:35] Speaker 00: That's correct. [00:33:36] Speaker 04: OK. [00:33:36] Speaker 04: So is it your view that because they were considered afterwards, he doesn't have to? [00:33:41] Speaker 04: I mean, I'm not deciding the results here. [00:33:46] Speaker 04: I'm just wondering what your position is on that. [00:34:00] Speaker 00: I don't want to get too far afield of what the deciding official actually considered in the removal decision and the basis for the removal decision. [00:34:09] Speaker 00: The administrative judge made credibility findings. [00:34:16] Speaker 04: Well, I'm sorry. [00:34:17] Speaker 04: I'm looking at page 469 of the appendix, page 195. [00:34:22] Speaker 04: And Mr. Caldwell asks, I think [00:34:30] Speaker 04: the penalties, yada, yada, yada. [00:34:32] Speaker 04: And the answer is no, sir. [00:34:35] Speaker 04: And then the question is, would it have changed your opinion if you had other offices who had done the same thing under the analysis? [00:34:41] Speaker 04: And then there's an objection, blah, blah, blah. [00:34:45] Speaker 04: And then there's a question. [00:34:47] Speaker 04: Anyway, so it looks like [00:34:48] Speaker 04: He didn't consider the comparators, right? [00:34:51] Speaker 00: His answer is that Mr. Gomez Rodriguez's conduct was of such severity that he would have been removed for that conduct. [00:35:02] Speaker 04: And there I see you're saying it. [00:35:03] Speaker 04: He says, if you're asking me a theoretical question, had other officers similar acts, then yes. [00:35:10] Speaker 04: I believe that would have required consideration under those factors of penalty of disparate treatment. [00:35:17] Speaker 04: So he didn't say it wouldn't have mattered, right? [00:35:20] Speaker 04: You know the record better than I. Did he say it wouldn't have mattered? [00:35:24] Speaker 04: Or? [00:35:25] Speaker 00: He says in response to, how would that affect your analysis? [00:35:29] Speaker 00: And he says, sir, that would not have changed my analysis of whether or not Officer Gomez searched and alert. [00:35:38] Speaker 05: But that's saying it wouldn't have changed his analysis of whether he conducted a search. [00:35:42] Speaker 05: It's not saying it wouldn't have changed his analysis as to what the penalty should be. [00:35:46] Speaker 05: That's exactly what these go to, right? [00:35:48] Speaker 05: Comparators go to penalty. [00:35:51] Speaker 03: Yes, sir. [00:35:54] Speaker 03: You referenced the AR-15-6 later investigation. [00:35:57] Speaker 03: Is that in our record? [00:35:58] Speaker 03: And if so, where can I find it? [00:36:02] Speaker 01: There is the... [00:36:12] Speaker 01: It begins at page 74 and makes the memorandum. [00:36:16] Speaker 01: 7-4? [00:36:17] Speaker 01: 7-4, correct. [00:36:19] Speaker 03: And in your brief, when you try to distinguish the 11 comparators, it's at page 22, 23 of your brief, you cite to pages 529 to 534 of the appendix. [00:36:31] Speaker 03: I might have the wrong version of the appendix in front of me. [00:36:34] Speaker 03: That's just like an index in my version. [00:36:37] Speaker 03: What is it that you're citing at 529 to 534? [00:36:42] Speaker 00: There may have been a holdover site from when the appendix was changed, but the reference was to the 15-6 memorandum [00:37:02] Speaker 03: So the same thing that we just talked about? [00:37:05] Speaker 03: So the same memo that's now at A74? [00:37:08] Speaker 00: Yeah, the memo begins at 74 and continues on with the first page of the May 12, 2021 appointment at 86, and then it continues from there. [00:37:23] Speaker 04: Can I ask you kind of a sort of legal question, but a process question? [00:37:29] Speaker 04: You represented that all this stuff happened after the deciding official made his decision. [00:37:36] Speaker 04: All of these comparatives. [00:37:38] Speaker 00: The comparators that petitioner referenced in his brief were identified in an additional audit of the alert system. [00:37:49] Speaker 00: There were several officers in the same audit that had [00:37:53] Speaker 00: that had identified Mr. Gomez Rodriguez's misuse of the alert system, and those officers were disciplined, or at least several of those officers were disciplined for their misuse of the alert system too. [00:38:11] Speaker 04: Okay, well you're just throwing a new thing into the ring. [00:38:14] Speaker 04: I mean, okay, so I've got just a couple questions, the obvious ones about the facts. [00:38:20] Speaker 04: So how many comparators were there [00:38:24] Speaker 04: Did their conduct, the action, it's not when their conduct occurred, it's when the agency discovered their conduct and what, if any, action they took against them. [00:38:32] Speaker 04: When did that all go down? [00:38:34] Speaker 04: Did any of that go down before the deciding official made his decision? [00:38:39] Speaker 04: Did he have any comparators alive to look at when he made his decision? [00:38:45] Speaker 00: Was that in play? [00:38:50] Speaker 00: I want to stay away from the use of comparators, because the misconduct identified in the audit did not have a one-to-one correspondence with another officer. [00:39:05] Speaker 00: This was Officer Cobb. [00:39:08] Speaker 00: And he was disciplined, but for different reasons. [00:39:12] Speaker 00: And the case is totally separate. [00:39:13] Speaker 04: All right. [00:39:13] Speaker 04: So maybe they're not comparators. [00:39:15] Speaker 04: I mean, maybe we've just been assuming there were all these comparators there. [00:39:19] Speaker 04: Your real argument should be that there weren't any competitors to be had. [00:39:24] Speaker 04: That's correct. [00:39:25] Speaker 04: Well, so the question is, when did this all go down? [00:39:30] Speaker 04: Like, to the sighting official, did Mr. Gomez say, you've got to look at competitors for the Douglas Factors? [00:39:38] Speaker 04: the burden to come forward with what those comparatives are. [00:39:41] Speaker 04: But did any of that happen before the deciding official made his decision? [00:39:45] Speaker 00: The initial or the notice of proposed removal was in October of 2020, and the removal decision was in February of 2021. [00:40:00] Speaker 00: That's Mr. Gomez. [00:40:02] Speaker 00: Correct. [00:40:03] Speaker 00: And the union did submit information on October 28th of 2020, I believe, in response to the proposed removal decision for several officers. [00:40:16] Speaker 04: So the union, while the proceeding was before the proposed official or the desired official, information was put into the record by the other side that these are comparators and you should consider them. [00:40:28] Speaker 00: I don't believe the argument is that clear in the union's submission. [00:40:36] Speaker 00: But the union did respond with respect to several officers who were involved in the similar misconduct. [00:40:44] Speaker 04: That was before the deciding official ruled. [00:40:47] Speaker 04: How come he says in his testimony he didn't have any comparators? [00:40:52] Speaker 04: Is that because he concluded they weren't comparable, or is that because he didn't really [00:40:58] Speaker 04: look at that. [00:40:58] Speaker 00: There's nothing directly in the record that explicitly lays out the deciding official's train of thought, but that appears to be the case, is that there were not direct comparators for Mr. Gomez Rodriguez's misconduct. [00:41:16] Speaker 05: OK, so Mr. Gomez Rodriguez's misconduct is that he used the alert system [00:41:22] Speaker 05: you know, first to search for Officer Pereca. [00:41:26] Speaker 05: Is that correct? [00:41:27] Speaker 00: That's correct. [00:41:28] Speaker 05: But wasn't he, is there any dispute that he was actually instructed by Officer Pereca as part of the DUI training class to actually do a search for Officer Pereca's own reports? [00:41:42] Speaker 00: Your Honor, this is a factual question that's a little bit [00:41:48] Speaker 00: an argument that's not really taking place or two ships passing in the night. [00:41:54] Speaker 00: The agency audit found that Mr. Gomez Rodriguez searched for Officer Pereca within the database system, that the way the keystrokes that he used, the way he conducted the search was not to find a report that Officer Pereca [00:42:10] Speaker 00: had authored and, therefore, modeled or see how to write the reports. [00:42:15] Speaker 00: But that Mr. Gomez Rodriguez searched for Officer Pereca as a subject, then identified a case that the subject was larceny, even though the training was on DUI, and then clicked on that three different times. [00:42:32] Speaker 00: So that was the agency's finding. [00:42:36] Speaker 00: The administrative judge made a credibility determination between whether it was more credible that the agency's view of the facts, as I just laid them out, or Mr. Gomez Rodriguez's explanation of the facts, which was that his use was authorized because he was told by Officer Perreca to conduct these searches. [00:42:57] Speaker 04: And did the competing witness that the judge credited, Mr. Ross or somebody like that, he said, did he not, that this is not authorized use? [00:43:08] Speaker 04: Did he say that no one should have or would have [00:43:11] Speaker 04: thought that this is the way you should do the search that is appropriate by just typing in the guy's name. [00:43:19] Speaker 00: That's right. [00:43:20] Speaker 00: That's what Deputy Chief Ross testified to. [00:43:23] Speaker 04: And your friend here, just to switch gears, says, well, that's all nice that you say that, but there was nothing in writing, there was no guidance given as to how we should do this. [00:43:35] Speaker 04: So there's nothing in writing that says what maybe the witness said, which is [00:43:41] Speaker 04: anybody should have, and would have, and could have known that an authorized use would not consist of just globally typing in the guy's name. [00:43:50] Speaker 00: Your Honor, it's true that there were no, at the time, standard operating procedures, as that term is defined, which were developed subsequently. [00:43:58] Speaker 00: But there's no question that Mr. Gomez Rodriguez's searches were not authorized or for an official purpose, as those terms are understood. [00:44:09] Speaker 00: that, as Your Honor pointed out, the guidelines from the Office of the Provost-Marshall explicitly call out unauthorized use, which in which... Yes, but all of that goes to unauthorized use. [00:44:21] Speaker 05: I think the question Judge Prost was asking you, and the same question that I was asking you, is how do we know his use was unauthorized if he was expressly told to search for reports [00:44:32] Speaker 05: created by Officer Pereca and if he didn't know how to do that except to put in Officer Pereca's name. [00:44:40] Speaker 05: So not a question of, there's no doubt if everybody believes that he is trying to find Derp on Officer Pereca, that's a problem. [00:44:50] Speaker 05: But according to Gomez Rodriguez, he was doing exactly the search he was instructed to do and the only way he was instructed to do it. [00:44:59] Speaker 00: And that was the question before the administrative judge, and the administrative judge weighed in the testimony before the board the credibility of the witnesses. [00:45:10] Speaker 00: Deputy Chief Russ said that the way that those searches were conducted were not [00:45:16] Speaker 00: consistent with what the audit results, the key strokes that Mr. Gomez Rodriguez used, were not consistent with his explanation of authorized use. [00:45:27] Speaker 05: And well, OK, but that's because Mr. Russ knows how to do the search to pull reports about that Officer Pareka himself wrote, as opposed to reports about Officer Pareka. [00:45:41] Speaker 05: did she deputy chief Russ also testified that anyone using the alert system would have known how to do that. [00:45:51] Speaker 05: The. [00:45:55] Speaker 05: The or an ordinarily skilled person on the alert system would know I mean what we have to get at or what the ALJ had to get at is [00:46:03] Speaker 05: Did Gomez Rodriguez conduct the search he was instructed to conduct in a way that was reasonable, or did he clearly go outside that? [00:46:12] Speaker 00: I'll refer to what the administrative judge found to be relevant on this point. [00:46:19] Speaker 00: First, that Mr. Gomez Rodriguez accessed a case and clicked on a title that included the chart of larceny. [00:46:28] Speaker 00: And so it was unrelated to the DUI case that Mr. Gomez Rodriguez said that he was searching for. [00:46:36] Speaker 00: that is inconsistent with Gomez Rodriguez's explanation of his supposedly authorized use. [00:46:45] Speaker 00: Mr. Gomez Rodriguez did that three times, which indicates that maybe it was a mistake to click on the larceny case once. [00:46:55] Speaker 00: Mr. Gomez Rodriguez accessed that case several times. [00:46:58] Speaker 00: And the administrative judge also found that Mr. Gomez Rodriguez had not passed the DUI course that the training officer, Careca, had. [00:47:10] Speaker 00: instructed and was not authorized to do these kinds of stops. [00:47:15] Speaker 04: We started off with your friend, and he talked about the fact that he was also charged. [00:47:19] Speaker 04: Is there some problem with him also disclosing that information? [00:47:24] Speaker 04: Not just improperly accessing it, but improperly disclosing. [00:47:28] Speaker 04: But I think he said that he wasn't charged with improper disclosure. [00:47:32] Speaker 04: He was just charged with improper access. [00:47:35] Speaker 04: So I just want to clarify that. [00:47:36] Speaker 00: Right. [00:47:37] Speaker 00: And the specification [00:47:40] Speaker 00: does not reference the disclosure, the specification that was included for charge one in both the notice of proposed removal and the decision on removal state between on or about 1st of March 2020 and 20 March 2020. [00:48:02] Speaker 00: You improperly searched for Officer Michael Pereca and Officer Corey Burgess in the Army Law Enforcement reporting. [00:48:08] Speaker 04: Well, you don't have to read the whole thing. [00:48:09] Speaker 04: Did it charge him with disclosure of that information or just with improper access? [00:48:13] Speaker 00: No, it charged him with improper access, and that is what he was removed from. [00:48:17] Speaker 04: OK, I have one more if the chief will indulge me with one more question, which is completely different than anything else. [00:48:22] Speaker 04: And I think it's a legal question. [00:48:25] Speaker 04: We have some cases which are mixed, not discrimination, but where somebody loses their confidentiality rating or their secret access clearance, and then they get fired because they can't do their job. [00:48:41] Speaker 04: And we have different, I think, different reviewability questions arise as to what we can get involved with and what we can't. [00:48:49] Speaker 04: This seems to present something maybe comparable, and that's my question. [00:48:53] Speaker 04: He got dismissed or whatever for this, he was decertified from the IRP, which is called an Individual Reliability Program. [00:49:05] Speaker 04: and then he was removed in part because he was decertified from this program so he can't do his job. [00:49:11] Speaker 04: Is there any limit or difference in the extent to which we can review that determination, i.e. [00:49:18] Speaker 04: his decertification? [00:49:19] Speaker 04: Are we constrained in any way, shape, or form? [00:49:22] Speaker 00: We are not aware of any court precedent addressing the IRP certification. [00:49:27] Speaker 00: The administrative judge did look into whether the agency's basis for its decertification was supported by the preponderance of evidence. [00:49:39] Speaker 00: And they cite board decisions likening this case to one where an employee had certifications to deal with hazardous chemicals. [00:49:48] Speaker 00: And so the board [00:49:50] Speaker 00: did look into the preponderance of evidence. [00:49:53] Speaker 00: So this is not. [00:49:54] Speaker 04: So no issue argument was made that we are constrained to look at that. [00:49:58] Speaker 04: Like if you can't get certified for firearms, we're not going to put somebody out with a firearm. [00:50:05] Speaker 04: And they said he couldn't do it. [00:50:06] Speaker 00: Correct. [00:50:07] Speaker 00: Though I want to point to one piece that underlies all of this, which is that charge one is the primary driver for Mr. Gomez Rodriguez's removal. [00:50:23] Speaker 00: Hardin, the deciding official's testimony at 465 was asked, what did you determine to be the appropriate penalty for charge one? [00:50:32] Speaker 00: And Mr. Hardin responded, I sustained charge one, and I decided that removal was the appropriate penalty. [00:50:37] Speaker 00: And then following up on that, at appendix 471, the administrative judge asks Mr. Hardin, if you had not sustained the first charge, how would your decision have been to the second charge, which is the certification? [00:50:51] Speaker 00: And Mr. Harden responded, had I not concluded that he accessed alerts, in other words, I concluded that he did not do that, I would have decided the second charge would probably not be applicable because it was based on his accessing the alert system. [00:51:03] Speaker 00: So the court need not consider the [00:51:07] Speaker 00: decertification in charge two if there is a concern about looking to what factual basis the agency had because the agency's deciding official testified that charge one was the driver and that Mr. Gomez Rodriguez would have been removed on the basis of charge one alone and further supported in the decision in terms of proposed removal. [00:51:34] Speaker 05: All right, Mr. Palfwell, you can have as much rebuttal time as you want. [00:51:39] Speaker 04: No, that's only if we ask questions. [00:51:44] Speaker 02: May I please the court? [00:51:48] Speaker 02: To the issue of when what we call the 11 comparators were actually provided, they were actually provided on November 16, 2020. [00:51:59] Speaker 02: Provided to whom? [00:52:00] Speaker 02: Provided to Deputy Chief Russ. [00:52:04] Speaker 02: and to Deputy Garrison, not Deputy Garrison Commander, but the Assistant Director of DES Lowe. [00:52:15] Speaker 04: And provided in connection with this proposed removal hanging out there as a response to that, not just randomly provided. [00:52:22] Speaker 02: Well, actually, and I'll get to that point, we actually had to come close to filing a motion to compel [00:52:31] Speaker 02: These 11 comparators were provided us the day after the pre-hearing submission date as the agency's third response to our discovery. [00:52:43] Speaker 02: And the union actually made an information request for these comparators because this is mentioned at the bottom of the Frost investigation where his [00:52:57] Speaker 02: recommendation to the base commander was to do a three-year audit on all persons who access. [00:53:04] Speaker 04: Okay, I'm sorry, I don't want to cut you off, but I only need to know the level of detail I need to know. [00:53:10] Speaker 04: Okay, so the Union provides this. [00:53:12] Speaker 04: This is between the proposal, this is the Union's official response to the proposed removal decision? [00:53:20] Speaker 02: Actually, the Union did not get the information until the hearing. [00:53:27] Speaker 02: Which hearing, before the agency or before the AJ? [00:53:31] Speaker 02: Before the AJ. [00:53:33] Speaker 02: It never was before the deciding official, Mr. Hardy. [00:53:37] Speaker 04: OK, because the union had requested it before the deciding official made his decision, but it had not been provided, so they couldn't provide it in response to the proposal? [00:53:46] Speaker 02: Yes. [00:53:46] Speaker 02: However, Deputy Chief Russ had it since he actually did it November 16, 2020. [00:53:54] Speaker 05: So let me see if I can clarify the facts, because I think I understand what happened here. [00:54:00] Speaker 05: The Army actually decided to undertake at its own initiative an audit to see how many other people potentially like Mr. Gomez Rodriguez are accessing the alert system and under what circumstances. [00:54:14] Speaker 05: The Army prepared a report on November 16th of 2020 following that review. [00:54:18] Speaker 05: They provided it to Deputy Chief Russ, among other people, that demonstrated, oh, look here, we have 11 people who also appear to ultimately have accessed the alert system in a manner that may be troubling. [00:54:33] Speaker 05: And so the Army was in possession of that information at the time that one of its decision makers was rendering the removal decision in this case. [00:54:42] Speaker 02: Exactly, yes. [00:54:43] Speaker 04: But on the timing, though, to the extent they were going to take any action, and maybe they did in some instances, that wouldn't have happened until later, right? [00:54:54] Speaker 04: I mean, reasonable comparators aren't, they did the same thing. [00:54:56] Speaker 04: It raises the question of, and what did the agency do to them in response to their doing it? [00:55:02] Speaker 04: So that would have happened later, right? [00:55:05] Speaker 02: We would not have known if they would have taken action then or later. [00:55:09] Speaker 04: OK, so what happens in this kind of case? [00:55:11] Speaker 04: It seems like, OK, the information isn't available to anyone in terms of the decision as to what action to take till later. [00:55:17] Speaker 04: So did you go to the AEJ and say, we've got this information. [00:55:21] Speaker 04: We think it's relevant. [00:55:22] Speaker 04: Did you need to have it put into evidence? [00:55:25] Speaker 04: Was it put into evidence? [00:55:26] Speaker 02: Yes, it was put into evidence. [00:55:28] Speaker 02: And the way it occurred was they actually did have the information. [00:55:33] Speaker 02: We had to file a motion to compel and withdraw that. [00:55:37] Speaker 02: And then after it was withdrawn, we got it the next morning after pre-hearing submission. [00:55:42] Speaker 02: However, the AJA allowed us to submit it a day late after the pre-hearing submission, given the nature of it. [00:55:49] Speaker 04: OK. [00:55:50] Speaker 04: And then, so you've got the deciding official on the stand. [00:55:53] Speaker 04: We saw some of that testimony. [00:55:55] Speaker 04: What did you do with that information? [00:55:57] Speaker 04: What was done with that information during the hearing, even though it's kind of late, because the deciding official obviously didn't just consider it when he made the decision, because he didn't have it. [00:56:07] Speaker 02: Well, my line of questioning went to the deciding official as to what would he have done as to the nature of the discipline and how would it have changed his analysis to remove Gomez Rodriguez. [00:56:24] Speaker 04: And did you have information at that time that people who you argued [00:56:28] Speaker 04: had committed comparable conduct, were disciplined in a less severe manner. [00:56:33] Speaker 02: Yes, I did. [00:56:34] Speaker 04: So that was all tied up and it was a bow. [00:56:36] Speaker 02: Yes. [00:56:37] Speaker 04: And you presented it to the deciding, I assume you also argued to the AJ. [00:56:42] Speaker 02: Yes. [00:56:43] Speaker 04: And so where in the opinion does the AJ deal with this? [00:56:47] Speaker 02: And that is our contention. [00:56:49] Speaker 02: The AJ makes no reference to this report, makes no reference to any other comparatives. [00:56:57] Speaker 02: The ones that the army were talking about were comparators for the EEOC portion of the claim, but not for the administrative portion. [00:57:09] Speaker 02: So she went down and went, who was of what race, what was their age. [00:57:13] Speaker 04: Oh, so it was before it. [00:57:14] Speaker 04: And he did deal with it. [00:57:16] Speaker 04: I mean, there's a page in the record. [00:57:17] Speaker 04: Maybe it's not 823. [00:57:18] Speaker 03: It's page 823, but it is referenced. [00:57:20] Speaker 04: If you put it in for discrimination, they dealt with it in that context. [00:57:24] Speaker 02: Well, no, they dealt with the IRP certification, not the discipline. [00:57:30] Speaker 02: So that was a different issue. [00:57:31] Speaker 02: Our issue was that the IRPD certifications were just made on a discriminatory basis, not the actual removal process as comparators to his removal. [00:57:42] Speaker 04: But you just told us. [00:57:43] Speaker 04: You got the information and you put it in, but you put it in in connection with the discrimination case, right? [00:57:51] Speaker 02: Yes, I believe I understand your question, yes. [00:57:54] Speaker 04: So it goes into the discrimination case and the judge rejects it. [00:57:59] Speaker 02: Yes. [00:58:01] Speaker 04: So why isn't that sufficient? [00:58:02] Speaker 02: Well, because those are comparators for the IRP decertification, not to the reasonableness of the penalty of the removal. [00:58:12] Speaker 02: Those are different parties as far as to an employment action, as far as to a promotional opportunity that Gomez Rodriguez lost. [00:58:21] Speaker 02: And he was making an allegation that he was decertified to help another candidate that was sick that went home. [00:58:28] Speaker 05: first. [00:58:29] Speaker 05: Did you argue to the ALJ or the board that there are 11 comparators on the charge, not just on the discrimination portion, but with regard to the charges that need to be considered in the context of the penalty? [00:58:45] Speaker 02: Yes, we did. [00:58:46] Speaker 05: So you say you introduce these comparators for two different purposes. [00:58:50] Speaker 05: Purpose number one is related to the discrimination. [00:58:53] Speaker 05: And the ALJ expressly addressed them in that context and said, these aren't comparators because these other people don't have the same rights or whatever. [00:59:00] Speaker 05: Then you also introduce them for purposes of [00:59:03] Speaker 05: say, and arguing that Mr. Gomez Rodriguez's penalty of removal was too severe in light of how they treated other people. [00:59:10] Speaker 02: Exactly. [00:59:11] Speaker 02: And let me clarify first, now that I completely understand the context of the question, to the discrimination purposes [00:59:24] Speaker 02: We did not introduce these 11 as part of that for the discrimination purposes. [00:59:32] Speaker 02: The 11 were solely introduced as far as to the purposes of the comparative discipline as far as to what they did. [00:59:43] Speaker 02: The discrimination portion of it, those were names that we had from a selection list. [00:59:52] Speaker 02: that were separate from this November 16, 2020 report. [00:59:58] Speaker 02: So they came from totally different comparators. [01:00:00] Speaker 02: Totally different comparators. [01:00:02] Speaker 05: So the ALJ considered comparators different individuals, actually different people, and those comparators [01:00:08] Speaker 05: for the discrimination claim. [01:00:09] Speaker 05: The KLJ never considered this report and the people articulated in it for the penalty. [01:00:15] Speaker 02: Exactly, yes. [01:00:16] Speaker 04: And if we look at the record, and maybe you can somehow give us guidance, although we don't have the complete record here, where you put in that evidence and whether there's any discussion or whatever. [01:00:27] Speaker 04: And I assume was there briefing before the act? [01:00:30] Speaker 04: After the hearing and before the AJ, was there briefing done by the parties? [01:00:34] Speaker 02: No, there was no briefing done by the parties. [01:00:37] Speaker 04: Was there an argument made before the AJ that the court's case was submitted? [01:00:41] Speaker 02: We did do an argument. [01:00:42] Speaker 02: And what we did find, and where you find it, where it was put in a record, is under Officer Gomez Rodriguez's testimony. [01:00:52] Speaker 04: OK, but your position before us is that [01:00:55] Speaker 04: The evidence was admitted and you made an argument to the AJ through witnesses or yourself saying look there were these eleven people they did the same thing and they didn't get penalized nearly as severely as Mr. Gomez Rodriguez. [01:01:12] Speaker 02: Yes and that was during Gomez Rodriguez's testimony at the very end. [01:01:16] Speaker 05: And am I right in understanding that the report that articulates the eleven individuals is page 80 of the appendix? [01:01:23] Speaker 02: Exactly yes. [01:01:24] Speaker 05: And that was introduced [01:01:26] Speaker 05: 2021 report and it's pretty sure short it's only about what they did and what the penalties were exactly yes and that was the thing that wasn't considered expressly or discussed by anybody exactly yes do you happen to have a site to the testimony of your client at the end where you said the argument was made. [01:01:49] Speaker 02: Yes it is. [01:02:13] Speaker 05: Can I ask you a question? [01:02:17] Speaker 05: is the government's argument was a bit confusing and difficult to follow. [01:02:21] Speaker 05: But they may have an argument that because this report was generated after the removal action took place, but before the ALJ made its decision, perhaps it shouldn't be considered. [01:02:34] Speaker 05: But if we vacated and remanded, that could be flushed out on remand. [01:02:38] Speaker 05: Is that correct? [01:02:39] Speaker 02: Yes, that's correct. [01:02:40] Speaker 04: But do you think it's a matter of law? [01:02:43] Speaker 04: It has to be considered? [01:02:44] Speaker 04: I mean, we have to stop the clock running someday. [01:02:46] Speaker 04: You can't reopen a case two years later because you find out that somebody was discriminated for. [01:02:52] Speaker 02: In this case, they're very much tied because the report was actually done, and to clarify, the report was actually done November 16, 2020. [01:03:02] Speaker 02: The actual, those are the data. [01:03:07] Speaker 02: Now, the actual clarification of what is official use and official policy and going through and analyzing the data, that was done on May 16th. [01:03:16] Speaker 04: And then... May 16th of 2021. [01:03:18] Speaker 04: May 16th. [01:03:20] Speaker 02: After the removal. [01:03:21] Speaker 04: That's when... Okay, so the deciding official would not, at the time he made his decision, have had the [01:03:28] Speaker 04: relevant information or the arguments you made with respect. [01:03:31] Speaker 02: Exactly. [01:03:32] Speaker 02: But they have the raw data. [01:03:33] Speaker 04: So what is your view of the law is that when this happens, I think the chief may be correct, or is correct, that the citing official doesn't have to [01:03:43] Speaker 04: We'll look at stuff afterwards. [01:03:45] Speaker 04: You can't keep reopening the record. [01:03:46] Speaker 04: So why is it not as a matter of law? [01:03:49] Speaker 04: He was only compelled, required to look at what was in existence at the time of the decision. [01:03:55] Speaker 04: And this post-dated the decision, end of story. [01:03:59] Speaker 02: Well, it's not in my brief, but there is case law that goes to, and it's an Air Force case, I believe, where the A.J. [01:04:09] Speaker 02: made a decision, and then the comparators were not punished until later. [01:04:14] Speaker 02: And it came up on appeal in which the court said, even though the later punishment, it happened after the hearing, [01:04:22] Speaker 02: What happens is that still the decision of that supervisory chain of how they punish individuals for that particular infraction. [01:04:34] Speaker 02: And so an agency cannot escape its responsibility. [01:04:36] Speaker 04: Wait, you're saying there's a case by us? [01:04:39] Speaker 02: I believe it's an MSPB case. [01:04:41] Speaker 02: Oh, OK. [01:04:41] Speaker 04: A case by the MSPB that says even if the information happens. [01:04:45] Speaker 02: I can find and provide that site. [01:04:47] Speaker 03: I just want to make sure I understand your position. [01:04:50] Speaker 03: You are not arguing. [01:04:52] Speaker 03: that Officer Harden, the deciding official, had an obligation to consider the comparators, which only became known after his decision. [01:05:01] Speaker 03: Correct? [01:05:01] Speaker 03: You're not making that argument. [01:05:04] Speaker 02: I'm making the argument that it's kind of double-minded. [01:05:11] Speaker 02: So just let me explain. [01:05:13] Speaker 02: The answer is yes, but. [01:05:16] Speaker 02: Yes, you are making the argument. [01:05:18] Speaker 02: Yes, I am. [01:05:19] Speaker 02: Is that he had an obligation to, and this is the reason why we mentioned in the hearing that the lieutenant colonel actually disapproved of the actual removal because there was a three-year audit coming. [01:05:33] Speaker 02: That's our argument. [01:05:34] Speaker 05: Let me ask a clarifying question. [01:05:36] Speaker 05: I understood your argument to be that the agency possessed all the necessary information to present to the deciding official on November 16th, which is prior to him rendering his removal decision. [01:05:50] Speaker 05: And so if the agency had within its possession, in fact, Chief Deputy Russ, within its possession, all this informational comparators, yes, they didn't issue their report until after the removal decision. [01:06:01] Speaker 05: But if the agency's obligation to provide this evidence, how would [01:06:05] Speaker 05: the individual have the burden of knowing how the agency treated other people. [01:06:10] Speaker 05: Individuals don't always have access to that. [01:06:12] Speaker 05: So it is your argument that the agency had the information, it was known in the agency [01:06:19] Speaker 05: And it just wasn't shared with the designing official, but that means he should have considered it. [01:06:24] Speaker 02: That is correct. [01:06:25] Speaker 04: But could I ask you, is there a difference in the information that we're talking about, the November information versus the May information? [01:06:31] Speaker 04: No. [01:06:32] Speaker 02: The May information. [01:06:34] Speaker 04: And does that information include not just what they were found to have done, but also what action was taken against them? [01:06:41] Speaker 02: They just recommended a May report just as far as to send down to administrative action. [01:06:48] Speaker 02: They don't say what action was taken as to... Wait, I'm talking about the November. [01:06:53] Speaker 02: The November? [01:06:54] Speaker 02: No, it does not state what action was taken. [01:06:57] Speaker 04: OK, so how was that? [01:06:58] Speaker 04: I mean, how did the deciding official have any? [01:07:03] Speaker 04: That's comparator information, by definition, means similar conduct and different action was taken against them. [01:07:11] Speaker 04: If by November no decision had been made about what action should be taken against them, what basis was there for a comparator analysis by the deciding official? [01:07:23] Speaker 02: to that question is that it would have gave the deciding official a full array, like I said, a different analysis of what different people did, and as far as what the policy would be. [01:07:37] Speaker 02: And if nobody was punished, because remember- But nobody would have been punished by that. [01:07:41] Speaker 04: But I thought that's what you were telling me. [01:07:43] Speaker 02: At the time, Officer Gomez Rodriguez had already been proposed to remove. [01:07:48] Speaker 02: So what was in front of him was the removal of Officer Gomez Rodriguez. [01:07:53] Speaker 04: I know. [01:07:53] Speaker 04: But what we're talking about is what was in front of him with regard to the so-called reasonable comparators. [01:07:59] Speaker 04: And as of November, there was some audit that said we find they did x, y, and z. [01:08:05] Speaker 04: but no information as to what, and it was a different deciding official, but no information or no action had been taken against them. [01:08:15] Speaker 04: So when was, I mean, for reasonable comparators, you just need both pieces. [01:08:22] Speaker 04: So the information that second piece was not available as of November Was it a you can answer and was it available as of May? [01:08:31] Speaker 04: When do we know when did something? [01:08:33] Speaker 04: It was available as of May but not as of November not as of November in So as far as what if the deciding official was saying are there reasonable comparators because I got to do this Douglas analysis Yeah, and the answer is there were no reasonable comparators at the time [01:08:52] Speaker 04: Because now you're saying, well, if it had been me, I might have decided, well, I should therefore wait. [01:08:57] Speaker 04: But I don't know that that's with the law. [01:09:00] Speaker 04: So there were no reasonable comparators at the time the deciding official made his decision. [01:09:05] Speaker 04: But you're saying before the AJ, I assume the AJ decision. [01:09:09] Speaker 02: Yes, before the AJ rule. [01:09:11] Speaker 04: So is it your position as a legal matter that when information becomes, when something is done after the deciding official makes his decision, he has to reopen his decision? [01:09:22] Speaker 04: to say, OK, well, six months later, I understand there's a comparator out there and somebody disciplined him or whatever. [01:09:31] Speaker 04: I have to reopen the whole decision to deal with that? [01:09:36] Speaker 02: Well, I wouldn't say the deciding official, because it's at a different form. [01:09:40] Speaker 02: It comes into a matter of due process. [01:09:46] Speaker 02: And to answer that, the question is that our answer to that is yes. [01:09:51] Speaker 02: And the reason being is that the due process is that if you find other information that will help you decide a reasonable penalty, and you find out now they actually have been punished. [01:10:04] Speaker 02: what was my obligation as far as inconsistency of the penalty as housing given amongst the division, then yes, as far as for good order of the actual division, to keep it within the realms of reasonable. [01:10:21] Speaker 04: Well, what are the legal parameters that you would set for your rule of law if something occurs, if information becomes available before the AJ rules? [01:10:31] Speaker 04: and it's submitted into the record, then somebody's got to deal with it and do something about it. [01:10:36] Speaker 04: Is that the time frame you would propose? [01:10:38] Speaker 02: Well, and I'll go to Loudermilk. [01:10:41] Speaker 02: And part of the opinion in Loudermilk is that the purpose of having these hearing is for the deciding official to gather all the information. [01:10:53] Speaker 02: We certainly wouldn't want to rush them. [01:10:55] Speaker 02: We had no complaints that it came out in May. [01:10:58] Speaker 02: But all we wanted is to have a fair determination of what the penalty would be. [01:11:04] Speaker 02: if that would be the parameters to say, yes, we would like to have that within this period of time, particularly before the hearing, and particularly if we had to file a motion to compel to get the information, it looks like they already had the information. [01:11:20] Speaker 03: If the Chief will permit, I have just a few questions. [01:11:23] Speaker 03: I think you can answer them quickly, maybe even yes, no. [01:11:26] Speaker 03: On motion to compel on all those, we got it at the last minute. [01:11:30] Speaker 03: Again, we don't have any issue on appeal in front of us. [01:11:33] Speaker 03: Correct? [01:11:34] Speaker 03: All right. [01:11:35] Speaker 03: On the question of whether the deciding official needed to have the comparators in front of him, I think you're telling me that you are raising that issue on appeal, that the comparators had to be in front of the deciding official. [01:11:50] Speaker 03: Is that an issue you think you've put in front of us? [01:11:54] Speaker 03: In a way, yes. [01:11:57] Speaker 02: And is it anywhere in your brief? [01:12:00] Speaker 02: As far as to the brief, we raised it as far as in the context of how it was presented, but not in a direct issue, no. [01:12:08] Speaker 03: So it's not in your brief, right? [01:12:10] Speaker 02: No. [01:12:11] Speaker 02: To answer your question, no, not that way. [01:12:12] Speaker 03: So what's in your brief, I think, is that the board failed to at least [01:12:19] Speaker 03: You would say consider the comparators in connection with the Douglas analysis. [01:12:24] Speaker 03: Is that right? [01:12:25] Speaker 03: Yes. [01:12:26] Speaker 03: And am I right that to the extent that's in your brief, it's two sentences at pages 14 and 15 with no citations to the record, no citations to authority of this court. [01:12:37] Speaker 03: Is that right? [01:12:38] Speaker 02: Yes. [01:12:40] Speaker 02: And to answer your question on the testimony of where Gomez Rodriguez, I believe his testimony starts at Appendix 480 and I can double check that before. [01:12:53] Speaker 02: What was that number I missed? [01:12:54] Speaker 02: Appendix 480. [01:12:56] Speaker 02: Thank you. [01:12:57] Speaker 02: In the testimony. [01:12:59] Speaker 02: And I'll double check that. [01:13:03] Speaker 02: Is that, that's the correct? [01:13:05] Speaker 02: Thank you. [01:13:06] Speaker 05: Okay. [01:13:06] Speaker 05: I thank both counsel. [01:13:07] Speaker 05: This case is taken under submission.