[00:00:00] Speaker 03:
The first argued case is Reba Abraham Pierce versus the MSPB, 2022-1148.

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Mr. Sullivan.

[00:00:11] Speaker 01:
Good morning and may it please the court.

[00:00:12] Speaker 01:
My name is James Sullivan and I am representing Ms.

[00:00:14] Speaker 01:
Reba Abraham Pierce.

[00:00:17] Speaker 01:
At the outset, it is important to emphasize that we are here to determine near jurisdiction before the board.

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Ms.

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Pierce brought her concerns to the Merit Systems Protection Board seeking to have her day in administrative court.

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And we are here because she's entitled to have her claims heard and adjudicated on their merits.

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Unlike similar bodies like the EEOC, the board has no mechanism for summary judgment.

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Though this may be frustrating for administrative judges with full dockets, the board's administrative judges cannot be allowed to heighten jurisdictional standards so high that a small hurdle becomes an impermissible barrier to seeking justice.

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It does not appear to be contested that personnel actions were taken.

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What is contested is whether Ms.

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Pierce's disclosures were protected

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and whether some of these personnel actions were exhausted before the Office of Special Counsel.

[00:01:04] Speaker 03:
Well, there were some protected exposures, apparently, and they were exhausted.

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But it was found that there were no non-trivalous allegations of wrongdoing.

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And then there was apparently a protected activity, but she failed to raise that with the OSC.

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So how do you overcome these findings?

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Yes, Your Honor.

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So when I say protected, I'm specifically referring to activities that were considered disclosures under 2302B8.

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And these findings were based, primarily the first finding was based around an FMLA violation.

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So under the Family and Medical Leave Act,

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29 CFR 825-215A requires that when an employee returns from FMLA, the position is one that is virtually identical to the employee's former position in terms of pay, benefits, and working conditions, including privileges, prerequisites, and status.

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They must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

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If we look at the administrative judge's decision, he cites the case.

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What were you just reading from, please?

[00:02:18] Speaker 01:
From 29 CFR 825-215, which is the relevant portion of the FMLA that Ms.

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Pierce said was violated.

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That's CFR.

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That's not the FMLA.

[00:02:31] Speaker 04:
Well, it's important to be very precise about this.

[00:02:36] Speaker 01:
So the regulations implementing the FMLA that Ms.

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Pierce deemed violated, the administrative judge disagreed and here the board argued that she was put back into an equivalent or substantially similar duties.

[00:02:49] Speaker 04:
I thought that the administrative judge said she was put back into the same position.

[00:02:54] Speaker 01:
Yes.

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And these are two different options, same position or equivalent position.

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Right?

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Yeah, so it has to be an equivalent position or the same of substantially similar duties.

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I'm sorry.

[00:03:05] Speaker 04:
You keep skipping 630.1210A1.

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You have to be put in the same position or A2, an equivalent position.

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And the stuff you're saying about what it means to be equivalent is certainly right.

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But that stuff doesn't apply to the same position.

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Isn't that correct?

[00:03:26] Speaker 01:
Yes, so what we argued in the brief is that a position is not the same if it's not equivalent.

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And I also cited to Davis v. Munster.

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Obviously, this court does not frequently adjudicate FMLA issues, so I looked outside to other districts.

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And there were 15 officers employed by a hospital.

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And one of those officers whose position title was officer was returned to an officer position.

[00:03:53] Speaker 04:
Right.

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Title alone, probably in general, isn't enough, but we're talking about this incredibly highly reticulated federal civil service system with a very specific job classification.

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This is what general attorney GS 130095 or something.

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And there's a whole job description, which does not restrict the duties by subject matter.

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Why is it?

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Um,

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proper to, in effect, alter this regulatory language to say that within the civil service system, unlike a private employee world where titles can be anything, that if you put somebody back into that very same general attorney, GS 13-0095 position where a range of subject matter duties are assignable by the supervisor, she started in that.

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up till April, she was doing a different part of that range of duties.

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When she came back in June, she was doing different duties, but all within the same job description.

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Why is that, as a matter of law, not sufficient?

[00:05:09] Speaker 01:
Well, Your Honor, I would start with the position that just because the federal employment sector delineates these in-detail job descriptions, it doesn't change the fact that in private sectors, they have kind of these general details about

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what the job description is.

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What the FMLA looks at is the actual duties that were performed.

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And I think if we looked at a private sector example of somebody who is an associate attorney doing one area of casework, let's say white collar crime, and they go on FMLA and they're told, well, now you're doing alcohol and food beverage policy.

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That's a substantial enough change to their duties where you're completely changing the attorney's practice area.

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And if you look at the intent behind the FMLA,

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We're looking not to disadvantage women that become pregnant and have to take time off from the workplace.

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And Ms.

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Pierce went from having an independent ethics caseload in a specialized practice area to performing what were essentially law clerk duties, helping out piecemeal on other attorneys' work.

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Some of them- Oh, I'm sorry.

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Are we now talking pre-leave?

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The phasing out.

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So there was- There was a phasing out.

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So what- From mid-December until mid-April when the leave started, there was phasing out of her management of ethics.

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to, so that that could be right transition to somebody who was going to be there.

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And then when she came back at the end of June, that's the, uh, the restoration provision of the FMLA.

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Have you made both arguments as to an FMLA violation as to both of those periods, the pre April transition and the post June return?

[00:06:53] Speaker 01:
No, obviously, Your Honor, I don't think it would be impermissible for them to temporarily transition her off of those duties.

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But then she started asking for timelines of how will I be restored?

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And that wasn't responded.

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Then when she came back and this was elevated, other personnel actions were taken.

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After she went to her second line supervisor saying they're violating my FMLA rights, a month later, they decided to terminate her.

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So that's kind of the timeline we're looking at.

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So she raises these issues to her second level supervisor, and everything just becomes worse.

[00:07:25] Speaker 04:
When was there an FMLA violation according to, say, your blue brief?

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So once again, there obviously is an implied transition time back.

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So there's not a specific date, but sometime between her return.

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Did you argue in your blue brief that there was an FMLA violation before she left in April?

[00:07:48] Speaker 01:
No.

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But upon her return, obviously, if there's a week or two getting back to transition her back into her caseload, we wouldn't argue that there was an FMLA violation.

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But by the time she's raising these issues, it is documented in the October 2nd emails that I believe are on appendix pages 143 to 145.

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At that point, she is alleging that there was definitely an FMLA violation taking place, and she elevated to her second line supervisor.

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As implied in those emails, there's also extensive oral discussions about this.

[00:08:22] Speaker 01:
But I want to go back to this court in Corthell, First Department of Homeland Security, and the case is cited therein, shows that... Yes, could I just ask, part of your argument that she was this ethics subject matter specialist before she went on her leave?

[00:08:40] Speaker 02:
yes she was independently managing the ethics caseload as a general attorney wasn't she also before she started doing everything which he was doing other things well uh... if you go back in a few years that so there was uh... i'm trying to get a snapshot is on she's hired a general attorney and the rules on the form document the oh nine oh five she couldn't

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work in just general topics or in two or more of the sort of assigned topics.

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And I got the impression that she was sort of doing whatever she was being asked of her in the beginning.

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And she's in a probationary period.

[00:09:21] Speaker 01:
Yes.

[00:09:22] Speaker 02:
Right?

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So I thought although, yes, right at the time she's leaving to go on duty, she's doing primarily ethics work with, I gather, some work on financial disclosure.

[00:09:34] Speaker 02:
Yes, so there was actually... Let's try to look at what the nature of the position was.

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It looked like she was doing more than one thing before she went on leave.

[00:09:44] Speaker 01:
Yes, so there's actually three different periods prior to the transitioning out, where I believe just for a couple months when she was first hired, she was being introduced into the practice generally.

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And she was very quickly put on ethics work.

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Originally, she wasn't supervising and managing her own caseload.

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She was under another

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attorney who was kind of leading the ethics work, and eventually she was transitioned into that lead attorney on the ethics work.

[00:10:10] Speaker 02:
So there was two different transitions, but by the time she was... I just got the feeling that because it was a probationary department, sort of like a trainee in the time up to she were taking the leave, and when she came back, she was put back in a trainee type position.

[00:10:27] Speaker 02:
Well, all the attorneys... In general, to do whatever was sort of

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whatever needed to be done in the office at that time.

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So all the attorneys that were working this office for the most part had their kind of specialized practice areas.

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There was at least one position that was an overfilled position that was occupied by one employee at the time Ms.

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Pierce went on FMLA.

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They shuffled things where that person kind of took over full-time a practice area and there were no positions left that had full-time

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practice areas.

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That's why I classified in my arguments just now that she was essentially put into an over-hire position.

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She was the one attorney that didn't really have a niche within the office.

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She went from having a niche she independently managed to not having a niche in the office.

[00:11:10] Speaker 02:
There's nothing in the record about whether probationary hires are treated differently in terms of the kind of work they're given and whatnot because it's

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The probationary period is obviously to let the employer have a look at the employee to decide whether they want to continue them, right?

[00:11:28] Speaker 01:
Yes.

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Because a probationary employee doesn't have very many rights if they're terminated before the probationary period is over, right?

[00:11:37] Speaker 01:
Yes.

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And I think we need to look kind of at the intent behind the FMLA.

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We don't want pregnant women to have their careers torpedoed if they have to go out and go out on pregnancy leave.

[00:11:51] Speaker 03:
So into your butthole time, you can continue or save it as you wish.

[00:11:55] Speaker 01:
Yeah, I'll just briefly go into the... I just have one question about the record.

[00:12:00] Speaker 02:
There's much talk in the briefs about the June 19, 2019 meeting between Mr. Pax and your client.

[00:12:08] Speaker 02:
Yes.

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And in the supplemental appendix from the government at 80 and after, there's what appears to be the minutes taken by Brooks Moore.

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Can I treat that as a true and accurate statement of what happened at that meeting?

[00:12:26] Speaker 02:
The stuff that's in the record looks like it's been typed up.

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I can't tell.

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Yes.

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So I believe there were a couple minor caveats to that in the brief that we addressed, but for the most part, that was the true and accurate.

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I'm not prepared to fully say this.

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Is there anything that happened at that meeting that's not reflected in these notes?

[00:12:49] Speaker 01:
Your Honor, I would have to, I apologize, I would have to re-review the brief to see if we put any specific caveat to that.

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I do want to kind of wrap up here by going back to Corthel, where this court expanded out protections of the Whistleblower Protection Act, and they cited to other cases in which those protections were expanded and the intent behind it.

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So this court explained protections to be

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uh... perceived the whistleblowers uh... in which who made no disclosure but we're mistaken for somebody who had we're protected in king versus army and then special council versus navy uh... they point out that the failure to expand protections would have a chilling effect contravening the purpose of the statute and then in court though it was somebody that was perceived to have filed o i g and the point i'm making here is

[00:13:42] Speaker 01:
Ms.

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Pierce's second line supervisor never in that email chain said, I don't think there was an FMLA violation.

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So if we're talking about here on appeal or in the MSPB arguments that if the board persuades this court that there was no FMLA violation, what truly matters is did Ms.

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Pierce's second line supervisor

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believe that Ms.

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Pierce disclosed the violation of law, rule, or regulation.

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Because I don't see any reason she should be treated any differently than somebody who is mistaken as a whistleblower, as long as her second line supervisor believes that she disclosed what is a violation of law, rule, or regulation.

[00:14:19] Speaker 01:
That is something that would be obviously important at the factual level, at the board level.

[00:14:26] Speaker 01:
But we have not had a chance to argue on the facts because we were dismissed on jurisdiction.

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As far as exhaustion, this case was, the removal was stayed by the Office of Special Counsel, so I do not understand where the administrative judge believes that the Office of Special Counsel was not aware of the termination.

[00:14:45] Speaker 01:
They also cite two pages in the record that Ms.

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Pierce had provide to the Office of Special Counsel, including appendix page 117 at paragraph eight, and emails starting on appendix 119, where she specifically talks about

[00:15:01] Speaker 01:
the termination and the settlement ultimatum.

[00:15:07] Speaker 01:
So these issues were both exhausted, and therefore any personnel action taking place is related back to that protected activity of discussing this with the Office of Special Counsel.

[00:15:19] Speaker 01:
Thanks, if that's all the time we have.

[00:15:21] Speaker 03:
Yes, your time is fully exhausted, but since we asked you a number of questions, we'll give you two minutes for a bottle.

[00:15:28] Speaker 03:
Thank you.

[00:15:31] Speaker 00:
Good morning.

[00:15:33] Speaker 00:
May it please the court?

[00:15:34] Speaker 00:
The MSPB administrative judge correctly dismissed this whistleblower individual right of action appeal on the grounds that Ms.

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Pierce failed to demonstrate that she exhausted any protected activity before OSC and failed to non-frivolously allege that any of the three alleged protected disclosures raised before OSC were actually protected.

[00:15:55] Speaker 04:
Your friend on the other side ended with some words about the protected activity.

[00:16:01] Speaker 04:
Can you start there and explain why the claim of disclosure of retaliation for filing the complaint was not really presented to OSC, which obviously had the complaint?

[00:16:21] Speaker 00:
Yeah.

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The requirement is not that OSC

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be aware from intervening events that

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there was an OSC complaint.

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She must present her claim that she was retaliated against for OSC activity before OSC.

[00:16:39] Speaker 04:
And I believe that- Could that have been done not by filing a second complaint, but in the course of her elaborating on the complaint that she originally filed?

[00:16:53] Speaker 04:
Which obviously could not have been about post-complaint actions.

[00:16:59] Speaker 00:
Of course, if she had alleged or provided emails or any evidence, a sworn declaration that she raised a claim of retaliation for OSC activity before OSC, then that would have been exhausted.

[00:17:12] Speaker 00:
But she never provided anything before the administrative judge to suggest that she returned to OSC to allege retaliation for OSC activity.

[00:17:20] Speaker 04:
The word, the phrase returned to OSC.

[00:17:24] Speaker 04:
So I'm envisioning a process where she files, this is in early October, is it?

[00:17:29] Speaker 04:
She files her OSC complaint.

[00:17:31] Speaker 00:
I believe it was November 2nd.

[00:17:32] Speaker 04:
November 2nd.

[00:17:33] Speaker ?:
Okay.

[00:17:34] Speaker 04:
And then are there further submissions that she makes to OSC in support of her November 2nd complaint?

[00:17:45] Speaker 00:
Before the board, she submitted follow-up emails to the OSC complaint examiner.

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I believe they were from November 2nd and maybe November 3rd.

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And these do not discuss any retaliation for going to OSC.

[00:17:58] Speaker 04:
And is that the sum total?

[00:17:59] Speaker 00:
That's all that she provided.

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So absent any evidence of exhaustion of a claim of OSC retaliation before the board, the administrative judge properly dismissed

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that part for lack of jurisdiction and found that there was no exhaustion of protected activity.

[00:18:19] Speaker 02:
What is your response to your adversaries pointing to paragraph 8 in a submission that's at A117?

[00:18:28] Speaker 02:
That's what I heard Ms.

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Pierce-Townsend point to as a sufficient disclosure.

[00:18:37] Speaker 00:
Appendix 117.

[00:18:38] Speaker 02:
As in the document she was resubmitting, it's in A117 of the Joint Appendix

[00:18:46] Speaker 02:
I just looked at it because that's what I understood counsel from Mr. Pierce.

[00:18:52] Speaker 02:
Mr. Pierce, he can correct me, but that's what I thought he was saying.

[00:18:56] Speaker 02:
That was his view of the proof that she had sufficiently raised.

[00:19:03] Speaker 00:
I believe that she notified OSC that she believed that the settlement agreement was... What was the notice of separation?

[00:19:12] Speaker 02:
That is to say I'm being fired.

[00:19:15] Speaker 02:
and the proposed settlement agreement, or a last minute effort to deprive me of rights.

[00:19:19] Speaker 02:
It's 117 of the white, not the supplemental appendix, but it's the appendix.

[00:19:29] Speaker 02:
I'm just curious, because that's what I thought Ms.

[00:19:33] Speaker 02:
Pierce's counsel was pointing to.

[00:19:36] Speaker 00:
I understood that he was arguing that he exhausted a claim of personnel action of termination, or that Ms.

[00:19:43] Speaker 00:
Pierce exhausted the claim of termination, which MSPB doesn't dispute.

[00:19:47] Speaker 00:
And I believe the administrative judge found that the termination personnel action was exhausted.

[00:19:54] Speaker 00:
What we believe was not exhausted was a claim of protected activity for going before OSC.

[00:20:00] Speaker 04:
What's the date on this email?

[00:20:03] Speaker 00:
The date is, I believe it's cut off, but it might be on the second page.

[00:20:15] Speaker 00:
On Appendix 119, it says November 3rd, and you can see that she was communicating with Office of Special Counsel on November 3rd.

[00:20:25] Speaker 00:
And November 2nd, yeah, on page 120, I believe, is the date of that email.

[00:20:35] Speaker 00:
So we don't dispute that she notified OSCE that she was being terminated and that she believed that the pro-offered settlement agreement was improper, but that doesn't reflect an exhaustion of any protective activity.

[00:20:54] Speaker 00:
Regarding Ms.

[00:20:55] Speaker 00:
Pierce's allegations regarding the FMLA violation,

[00:21:01] Speaker 00:
We must look to what she actually alleged before the board.

[00:21:04] Speaker 00:
In her jurisdictional submission, the extent of her alleged disclosures occurred between January 2020 and November 2020 when she requested FMLA reinstatement with long-term duties and a full-time workload.

[00:21:19] Speaker 00:
She didn't provide any information to the administrative judge that the duties she was performing upon her return from leave were materially different from those that she was performing before she took leave.

[00:21:29] Speaker 00:
And her belief that she was entitled to a dedicated practice area does not state a non-frivolous allegation of an objectively reasonable belief in a violation of the FMLA.

[00:21:39] Speaker 04:
Why would that be?

[00:21:41] Speaker 04:
It seems to me you kind of have two points.

[00:21:43] Speaker 04:
One is, it doesn't matter what the duties are, at least within this job description, because she was returned to the same position.

[00:21:52] Speaker 04:
And the second position is, even if some sort of equivalence is required, she didn't state enough to show that what she got later was not equivalent.

[00:22:02] Speaker 00:
Exactly.

[00:22:02] Speaker 00:
Under the first prong, she's entitled to be returned to the same position.

[00:22:07] Speaker 00:
I take Ms.

[00:22:08] Speaker 00:
Pierce's argument to also be, and especially in connection with the district court case she cited, that she wasn't, in fact, returned to the same position.

[00:22:17] Speaker 00:
And we don't dispute that title and pay may not be dispositive of whether you've been returned to the exact same position if you make allegations to raise a question of fact that you were performing materially different functions and duties.

[00:22:30] Speaker 00:
But she failed to do so.

[00:22:32] Speaker 00:
I believe that she was returned to the exact same position in the Office of General Counsel performing a range of work

[00:22:37] Speaker 00:
which she acknowledged in her various drastic issues.

[00:22:39] Speaker 02:
How do you decide whether they're materially the same?

[00:22:42] Speaker 02:
I'm sorry?

[00:22:42] Speaker 02:
How do you decide you're saying that the duties were materially the same on both sides, and that she hasn't alleged that they were materially different?

[00:22:53] Speaker 02:
I thought she was saying, I used to be an ethics specialist, and now I'm not.

[00:22:58] Speaker 02:
Yes, but she didn't.

[00:22:59] Speaker 02:
Oh, if you were an ethics specialist before you went on leave and when you came back, you didn't do anything at all about ethics, then wouldn't there be a difference?

[00:23:09] Speaker 00:
I mean, I believe that... Yes or no?

[00:23:11] Speaker 00:
Is there a difference?

[00:23:13] Speaker 00:
No, I believe that she was still doing legal work within the Office of General Counsel.

[00:23:18] Speaker 02:
She acknowledged... I'm trying to get you to tell me how you measure... I think materially different would... Material difference.

[00:23:26] Speaker 00:
For example, I found an 8th Circuit case where they found an employee who had the same title and pay was not returned to the same position, because before leave, she was performing duties as a locomotive engineer, and after, she was performing secretarial duties.

[00:23:39] Speaker 00:
So I think there has to be some allegation, and here there's absolutely none, that she was performing work outside of her position.

[00:23:47] Speaker 02:
Well, do we care at all?

[00:23:49] Speaker 02:
I mean, I didn't see anywhere in your brief where you said, look, if you're returned to the same GSA 0905,

[00:23:55] Speaker 02:
Arguments over.

[00:23:58] Speaker 00:
I believe we said that she was, we did say that she was returned to the exact same position in the general counsel's office that she held prior to taking leave.

[00:24:05] Speaker 02:
Does that end the whole discussion of equivalence?

[00:24:09] Speaker 00:
I believe it does, but the question here is whether she had a reasonable belief.

[00:24:13] Speaker 00:
And so we continued to also discuss whether she made a non-philosophical allegation that she was, in the alternative, restored to a non

[00:24:22] Speaker 00:
an equivalent position.

[00:24:24] Speaker 00:
Because the standard here is a reasonable belief, maybe she didn't understand that that family was not violated by being returned to the same position, even though contrary to what Mr. Solomon stated, I believe there is in the record where her supervisor told her that she was not entitled to the same duties that she had, that she was entitled to be returned to a GES 13 position.

[00:24:44] Speaker 04:
Let me ask you this question, and it may not be

[00:24:47] Speaker 04:
terribly well formed.

[00:24:49] Speaker 04:
But in the world of district court litigation, when a complaint is dismissed under 12b6 for basically failure of specificity to generate a plausible allegation, it is more or less required, certainly the nearly uniform practice, to give an opportunity to amend

[00:25:16] Speaker 04:
Because maybe the plaintiff in writing the first complaint didn't appreciate how much detail to put in.

[00:25:25] Speaker 04:
Is there a counterpart to that in the board proceedings?

[00:25:33] Speaker 00:
Yeah, I believe that there is.

[00:25:35] Speaker 00:
Every appellant before the MSPB has a statutory right to appeal an initial decision to the full board.

[00:25:43] Speaker 00:
The full board will usually consider

[00:25:46] Speaker 00:
We believe that jurisdiction is always before the board, and so Ms.

[00:25:49] Speaker 00:
Pierce could have gone before the full board and provided additional claims regarding jurisdiction and had essentially a chance to meet her burden if she didn't understand what it was below.

[00:26:02] Speaker 00:
But Ms.

[00:26:02] Speaker 00:
Pierce elected not to file petitions.

[00:26:04] Speaker 04:
So you're saying she could have filed an appeal to the full board and in that added allegations that the full board then would have considered on the merits and not the board would not have said, sorry, we're not

[00:26:25] Speaker 04:
considering any allegations except those that were before the A.J.

[00:26:30] Speaker 04:
when she rendered her initial decision.

[00:26:33] Speaker 00:
On the merits, the board would only consider allegations that you raised below.

[00:26:37] Speaker 00:
But when we're discussing jurisdiction, the jurisdictional claims, the board says that jurisdiction is always before us.

[00:26:44] Speaker 00:
And so we will consider if you provide substantive claims and make a non-firmness allegation before the board.

[00:26:53] Speaker 00:
would have considered those.

[00:26:55] Speaker 02:
Is the dismissal in this particular case against Ms.

[00:26:59] Speaker 02:
Pierce with prejudice or without prejudice?

[00:27:02] Speaker 02:
I believe it would be with prejudice because the administrative judge found that... Well, I think what Judge Toronto was referring to that in a district court setting, typically a dismissal 12b6 is not with prejudice you can refile.

[00:27:17] Speaker 00:
No, Ms.

[00:27:19] Speaker 00:
Pierce could not have refiled this appeal with the administrative judge.

[00:27:23] Speaker 00:
It would have been determined to be precluded by Clarell and Staples.

[00:27:28] Speaker 02:
And the way you look at what the full board can do is really not like an opportunity to amend, because the full board reviews the record that was made in front of the AHA.

[00:27:40] Speaker 02:
But the board would consider jurisdictional.

[00:27:42] Speaker 02:
There isn't any analog in the MSPB world for what

[00:27:46] Speaker 02:
appears to be present in a district court setting or a party who has been dismissed for failure of a stated claim has a chance to recoup in the civil setting but not in the administrative setting, according to you.

[00:27:59] Speaker 00:
Correct.

[00:28:00] Speaker 00:
There wouldn't be a parallel.

[00:28:01] Speaker 04:
Do you by any chance have a citation to offer off the top of your head for the point that because we're talking about what the board calls jurisdiction, the full board would have entertained additional elaboration of the allegations that had been originally made?

[00:28:23] Speaker 00:
Off the top of my head, no, but we state pretty frequently that jurisdiction is always before the board.

[00:28:29] Speaker 00:
I would be happy to submit a supplement, if Your Honors would like, with some cases saying that we will consider additional evidence and arguments regarding jurisdiction before the Board.

[00:28:41] Speaker 00:
Anything further?

[00:28:43] Speaker 00:
If you have no further questions, the MSPB respectfully requests that you affirm the initial decision.

[00:28:49] Speaker 03:
Thank you.

[00:28:49] Speaker 03:
Thank you, Counsel.

[00:28:51] Speaker 03:
Mr. Solomon has two minutes for a bottle.

[00:28:54] Speaker 01:
Thank you, Your Honor.

[00:28:59] Speaker 01:
Judge, you asked about subsequent corrective action.

[00:29:03] Speaker 01:
It was answered that we could have filed a claim with the full board.

[00:29:06] Speaker 01:
I believe it's discussed in the reply brief, but at the time that this decision came down, there was no board.

[00:29:12] Speaker 01:
From January 2017, the board lost quorum, and it wasn't until the middle of last year that the board regained quorum, and there was senators actively talking about not wanting to approve the board members because they didn't believe the board should exist.

[00:29:27] Speaker 01:
So there was no indication of

[00:29:28] Speaker 01:
when the board would be back into having a quorum.

[00:29:32] Speaker 01:
And on top of that, you know, in a district court case, normally on something like this, there would be a reply.

[00:29:39] Speaker 01:
And the procedure here is, as a matter of course, in every case now, they submit this jurisdictional requirement where the appellant has to submit a jurisdictional statement.

[00:29:49] Speaker 01:
They have no idea if jurisdiction is actually going to be a contested issue when they submit this statement.

[00:29:55] Speaker 01:
And then there is a reply from the agency.

[00:29:57] Speaker 01:
And then the next thing in this case was a decision.

[00:30:00] Speaker 01:
There was no conference to discuss this further.

[00:30:02] Speaker 01:
There was no opportunity to provide a reply to the response.

[00:30:05] Speaker 01:
There was no opportunity to supplement the record.

[00:30:08] Speaker 01:
The parties had not gone through discovery, so there was no additional information on that end.

[00:30:12] Speaker 04:
uh... it was also it's because it's double check was there also no opportunity here under rules or by invitation to uh... i'm just gonna call this informally seek reconsideration from the administrative judge not from the administrative judge as pointed out they could have sought she could have sought uh... reconsideration from the full board and the board didn't exist since so we didn't find that practical

[00:30:37] Speaker 04:
putting aside the non-existence of a quorum at the board level, do you agree that it's clear that you could have supplemented your jurisdictional allegations in a filing to the full board?

[00:30:54] Speaker 01:
Yes.

[00:30:56] Speaker 01:
However, there was no indication that the board would exist.

[00:30:58] Speaker 01:
And at that point there was three years of backlog.

[00:31:00] Speaker 01:
So we're talking about

[00:31:02] Speaker 01:
potentially a decision in 2026 on reconsideration of a jurisdictional issue.

[00:31:08] Speaker 01:
It was also stated that there was no sworn statements regarding exhaustion.

[00:31:12] Speaker 01:
I want to point out that on the MSPB filings, there's an option to say that these are facts known to me and declared under penalty of perjury, which she selected.

[00:31:21] Speaker 01:
So her jurisdictional statement is under oath.

[00:31:25] Speaker 01:
And she does allege that there was retaliation for OSC.

[00:31:30] Speaker 01:
It's also important to understand her kind of the underlying argument regarding the settlement ultimatum, which she argues, on its face, said that you're not allowed to go to OSCE or these offers are off the table of a clean resignation.

[00:31:46] Speaker 03:
I'll say your time has expired.

[00:31:48] Speaker 03:
Thank you.

[00:31:48] Speaker 03:
That's what your red light means.

[00:31:50] Speaker 03:
So we will take the case on a submission.

[00:31:53] Speaker 01:
Thank you, Your Honor.