[00:00:00] Speaker 03:
First case for argument is 22-1024, Toby versus DVA.

[00:00:06] Speaker 03:
Mr. Opinski, whenever you're ready.

[00:00:10] Speaker 05:
Thank you, Your Honor.

[00:00:13] Speaker 05:
This case has been around for a while.

[00:00:19] Speaker 05:
It was originally filed about 10 years ago in the Tohono O'odham Regional Office.

[00:00:29] Speaker 05:
This Toby was a employee of the Veterans, Department of Veterans Affairs.

[00:00:40] Speaker 05:
Sad to say, while this case was patented, he died.

[00:00:44] Speaker 05:
And his son, Malcolm Toby, has taken over.

[00:00:52] Speaker 05:
So.

[00:00:53] Speaker 04:
Counselor, let me ask you a quick question.

[00:00:56] Speaker 04:
It's kind of like a threshold question here.

[00:00:59] Speaker 04:
What's left to decide?

[00:01:02] Speaker 05:
What relief do you see?

[00:01:08] Speaker 05:
That's what I was going to address.

[00:01:10] Speaker 05:
Mr. Tobey, Malcolm Tobey and I believe this is a very simple case.

[00:01:21] Speaker 05:
Back in September of 2016, the board

[00:01:29] Speaker 05:
issued a remand order.

[00:01:33] Speaker 05:
And you'll find that remand order at appendix pages 57 to 63.

[00:01:40] Speaker 05:
The board issued a remand order.

[00:01:45] Speaker 05:
The purpose of that remand order, as stated in the order, is for the regional office to hold a jurisdictional hearing

[00:01:59] Speaker 05:
to determine whether Mr. Tobey, the original Mr. Tobey, was in Chapter 75 statutory employment with full rights to notice and appeal.

[00:02:18] Speaker 01:
Can you confirm for me whether Mr. Tobey received two days of back pay?

[00:02:23] Speaker 05:
What's that?

[00:02:24] Speaker 01:
Did Mr. Tobey receive two days of back pay?

[00:02:28] Speaker 05:
Two days.

[00:02:29] Speaker 01:
Can you confirm?

[00:02:32] Speaker 05:
While this matter was pending before this honorable court, let me take a step back.

[00:02:44] Speaker 05:
This really gets into the other side's case, which I had intended to rebut.

[00:02:52] Speaker 05:
I only reserve five minutes of initial.

[00:02:56] Speaker 03:
No, we understand that.

[00:02:57] Speaker 03:
But time is short.

[00:02:59] Speaker 03:
So two questions.

[00:03:00] Speaker 05:
Well, the answer to your question is two days back pay were offered while this case were pending specifically before this court.

[00:03:15] Speaker 05:
It has not been paid as of this moment, no.

[00:03:21] Speaker 03:
So back to Judge Raina's question.

[00:03:24] Speaker 03:
What are you appealing here, and what is it you want us to do?

[00:03:30] Speaker 05:
I was glad to tell you.

[00:03:34] Speaker 05:
When the case was remanded, the administrative judge issued an order finding board jurisdiction.

[00:03:46] Speaker 05:
But that's it.

[00:03:48] Speaker 05:
He found board jurisdiction.

[00:03:50] Speaker 05:
But there never was a hearing on the merits of Mr. Tobey's case.

[00:03:56] Speaker 05:
So what we're seeking is for a remand back to the board for a merits hearing.

[00:04:10] Speaker 03:
I think it's very clear that you- But don't you think, I mean, I think the government's position, which we'll hear from them, is that through this proceeding, before that order was issued,

[00:04:19] Speaker 03:
the agency withdrew its termination.

[00:04:22] Speaker 03:
So how is... Let me address that.

[00:04:26] Speaker 03:
Why is the termination still before us if it was withdrawn?

[00:04:30] Speaker 05:
Because the action of the agency did not give Mr. Tobey full and complete relief.

[00:04:41] Speaker 04:
Okay, that's the relief I'm asking you.

[00:04:43] Speaker 04:
What relief?

[00:04:45] Speaker 05:
Okay, we believe

[00:04:47] Speaker 05:
that Mr. Tobey, the agency has treated this like a term employment.

[00:04:56] Speaker 05:
Mr. Tobey's appointed like a term employment.

[00:05:00] Speaker 05:
We believe that he had career employment, and therefore he should be reinstated to his career employment.

[00:05:09] Speaker 03:
And did you raise that issue before the A.J.?

[00:05:11] Speaker 03:
Was that your position at the get-go that he should be, that he's not a term employee?

[00:05:16] Speaker 03:
And what is the basis for saying that, I mean, the agency makes a decision.

[00:05:22] Speaker 03:
They appointed him to a term appointment.

[00:05:24] Speaker 03:
We all agree with that, right?

[00:05:26] Speaker 03:
The job he was given was a term appointment job.

[00:05:28] Speaker 05:
Well, the so-called term appointment is illegal because of the appointing authority used, which is limited to temporary appointments for one year or less.

[00:05:41] Speaker 03:
So did you make that allegation, Raoul, that he was appointed illegally?

[00:05:47] Speaker 03:
Yes.

[00:05:48] Speaker 03:
You made it before the administrative order?

[00:05:50] Speaker 05:
Yes.

[00:05:52] Speaker 05:
What happened is when this was going on.

[00:05:55] Speaker 03:
So you're asking us, in order for your client to prevail, you're asking us to determine that this was an unlawful appointment.

[00:06:02] Speaker 03:
Right.

[00:06:04] Speaker 03:
If it were an unlawful appointment, the relief would necessarily be that your client gets

[00:06:10] Speaker 03:
a full career job in lieu of this appointment, right?

[00:06:16] Speaker 03:
That's what you would ask.

[00:06:18] Speaker 05:
Well, ordinarily, where a legal, illegal appointment is made, the proper remedy is a, was it re, I'm trying to remember, forgive me.

[00:06:39] Speaker 05:
Well, they have to make it regular.

[00:06:42] Speaker 05:
Regularization, regularization.

[00:06:44] Speaker 03:
Well, is there any case you can think of?

[00:06:46] Speaker 03:
I've never seen one where the agency did what you're alleging was illegal here.

[00:06:51] Speaker 03:
Let's assume it's illegal.

[00:06:52] Speaker 03:
Let's assume it was improper, that they did a term appointment and there was something problematic about that appointment.

[00:07:00] Speaker 03:
Is there any case law that says the relief for that would be that the employee gets a career appointment in lieu of a term appointment?

[00:07:10] Speaker 05:
Okay.

[00:07:14] Speaker 05:
Let me go back.

[00:07:15] Speaker 05:
Mr. Tobey originally was employed by the same agency in New Jersey where he attained career status.

[00:07:30] Speaker 05:
He had career status.

[00:07:33] Speaker 05:
He went into the army and became disabled.

[00:07:37] Speaker 05:
which gave him what they call that 10% disabled veteran.

[00:07:45] Speaker 05:
When he applied for the job, he was anticipating getting his career satisfied.

[00:07:56] Speaker 03:
But when he applied for the job, it was a term job, and there was no guarantee

[00:08:02] Speaker 03:
that he converted into it.

[00:08:04] Speaker 03:
Am I wrong about that?

[00:08:05] Speaker 03:
Was there anything in writing or orally said, like, this is not really a term job, or it will be converted at the end of the year?

[00:08:13] Speaker 05:
There's a case that I have cited in our brief.

[00:08:19] Speaker 05:
Bear with me.

[00:08:22] Speaker 05:
It's the Shipoka-Shiposka versus United States

[00:08:28] Speaker 05:
You'll find that case referred on page 15 and 16 of the petitioner's brief.

[00:08:42] Speaker 04:
At a later point in time, didn't the government see that Mr. Tobey was a Chapter 75 employee?

[00:08:54] Speaker 05:
No, we had to go back and forth up to the board to where the board finally issued that remand order.

[00:09:04] Speaker 05:
No, they kept saying that he was only a temporary employee.

[00:09:10] Speaker 05:
We kept saying, no, he's a Chapter 75 employee.

[00:09:14] Speaker 05:
Finally, what happened was that the board issued that remand order.

[00:09:19] Speaker 04:
Let's say we agree with you, and he's a Chapter 75 employee.

[00:09:23] Speaker 04:
What is it that you want as a result of that?

[00:09:26] Speaker 05:
Well, first of all, we want a marriage hearing.

[00:09:31] Speaker 05:
Second of all, out of that marriage hearing, we would hope that we would get some kind of confirmation that he has career employment versus

[00:09:51] Speaker 05:
term employment of one year and two days, which is illegal.

[00:09:55] Speaker 05:
In addition to that, we would want... Counsel.

[00:09:58] Speaker 05:
I'm sorry.

[00:09:58] Speaker 01:
That's okay.

[00:09:59] Speaker 01:
In light of the fact that he is deceased, what do you want in terms of your point about the permanent employment?

[00:10:06] Speaker 05:
Well, I'm sorry.

[00:10:07] Speaker 05:
I didn't understand the question.

[00:10:08] Speaker 01:
You indicated that your client's deceased, correct?

[00:10:12] Speaker 05:
Yes, he is.

[00:10:13] Speaker 01:
Okay.

[00:10:14] Speaker 01:
So what... I'm just trying to follow up a little bit on Judge Raina's question.

[00:10:17] Speaker 01:
I'm trying to understand what you want

[00:10:19] Speaker 01:
in terms of the permanent employment.

[00:10:22] Speaker 05:
Oh, okay, I understand your question now.

[00:10:25] Speaker 05:
Well, it seems to me that the appropriate relief would be to reinstate him, well, he, when I say reinstate him, he is reinstated, but

[00:10:47] Speaker 05:
I would think that he would be entitled to back pay and other benefits computed up to the date of death.

[00:10:57] Speaker 05:
I mean, obviously, he can't go beyond the date of death.

[00:11:01] Speaker 05:
That would be the limitation.

[00:11:03] Speaker 03:
Can you tell us approximately when his death occurred?

[00:11:07] Speaker 05:
When his death occurred, maybe six months ago.

[00:11:10] Speaker 05:
Just six months ago.

[00:11:12] Speaker 03:
We're well into your rebuttal.

[00:11:14] Speaker 03:
I know you saved a lot.

[00:11:15] Speaker 03:
Why don't we hear from the government?

[00:11:17] Speaker 00:
Okay, thank you Morning, your honors may please the court Mr. Toby appeals the decision of the Merit Systems Protection Board Reversing his late father's removal for misconduct from his time-limited appointment with the VA Shortly before the MSPB issued his decision in the case however the MSPBA rather rescinded that Removal for misconduct.

[00:11:39] Speaker 00:
Mr. Toby's appeal therefore is moved

[00:11:42] Speaker 00:
Although Mr. Toby contends that he is entitled to further relief because of the time-limited appointment.

[00:11:47] Speaker 04:
What was it that was removed?

[00:11:48] Speaker 04:
The misconduct?

[00:11:50] Speaker 00:
Yes.

[00:11:50] Speaker 04:
The termination?

[00:11:51] Speaker 04:
So then he was reinstated?

[00:11:53] Speaker 00:
Yes.

[00:11:54] Speaker 00:
Reinstated to the term of appointment that he held, which was for one year and two days.

[00:11:58] Speaker 04:
Was he ever reinstated to a Chapter 75 employee status?

[00:12:02] Speaker 00:
He wasn't.

[00:12:04] Speaker 00:
I think it's...

[00:12:05] Speaker 00:
He was reinstated to the term that he was serving on.

[00:12:07] Speaker 00:
The board found that he had attained Chapter 75 status, but not for the reasons that Mr. Tobey advanced to the board or here.

[00:12:15] Speaker 00:
Well, he did at some point advance this.

[00:12:18] Speaker 04:
But Mr. Tobey was a Chapter 75 employee.

[00:12:22] Speaker 00:
He was, Your Honor, because he was terminated on the 365th day.

[00:12:25] Speaker 00:
So he had served a full year and attained that status by that reason.

[00:12:29] Speaker 00:
And so that is the reason that the court, that the board, rather, was looking into the nature of the appointment.

[00:12:35] Speaker 00:
It had to, to some degree, because the board would have had no jurisdiction to review the removal for misconduct if he hadn't attained that chapter 75 status.

[00:12:47] Speaker 00:
So that the purpose of that analysis was, can we even analyze the removal for misconduct because you have to be a Chapter 75 employee for that reason.

[00:12:56] Speaker 00:
But the issue is that neither the board nor the court has jurisdiction to look into the

[00:13:03] Speaker 00:
illegal nature, alleged illegal nature of the term of appointment because the board has jurisdiction to review advertisements.

[00:13:10] Speaker 04:
But either way, he is a Chapter 75 employee.

[00:13:14] Speaker 04:
So let's start from there.

[00:13:15] Speaker 04:
What do you owe him?

[00:13:18] Speaker 00:
two days of back pay to the end of it.

[00:13:20] Speaker 04:
Why haven't you even paid the back pay?

[00:13:22] Speaker 00:
It has been paid, John.

[00:13:23] Speaker 04:
It has been paid.

[00:13:23] Speaker 04:
A check has been sent for the two days.

[00:13:26] Speaker 00:
Yes, the check for the two days was sent in September 2022.

[00:13:29] Speaker 00:
At the same time, we also offered, the VA offered interest on the back pay as well.

[00:13:37] Speaker 00:
That, for administrative reasons, had to be paid by direct deposit.

[00:13:41] Speaker 00:
We offered repeatedly to counsel to provide bank account information

[00:13:46] Speaker 00:
Council has declined to do so to this point for reasons unknown, but the VA is ready to pay that interest as well.

[00:13:54] Speaker 03:
I'm still unclear.

[00:13:55] Speaker 03:
The government's conceding that he became a Chapter 75 employee.

[00:13:59] Speaker 03:
That's not computing in my head, because he had a term appointment.

[00:14:05] Speaker 03:
So by saying he was a Chapter 75 employee, are you conceding that he automatically became a career employee or a career conditional employee?

[00:14:16] Speaker 03:
I mean, are you a Chapter 75 employee just because if you're on a term employment,

[00:14:23] Speaker 03:
What rights do you have that necessarily inured to someone who's a Chapter 75 employee?

[00:14:28] Speaker 03:
I'm just, I'm not computing what you're saying.

[00:14:30] Speaker 00:
You can attain the Chapter 75 status in a number of ways, including service, continuous service for a year, and that's what he did, but that still doesn't change the nature of the appointment.

[00:14:39] Speaker 00:
So you can have a term

[00:14:41] Speaker 00:
appointment, a time-limited appointment that expires on a particular date.

[00:14:45] Speaker 00:
And that's what we have here.

[00:14:46] Speaker 03:
But his additional allegation then, unless your contention is that he waived it, is that he necessarily was entitled to a career appointment because the government allegedly exceeded

[00:15:01] Speaker 03:
the time frame for a term appointment.

[00:15:03] Speaker 03:
So what's your answer to that?

[00:15:04] Speaker 00:
Correct, Your Honor.

[00:15:05] Speaker 00:
That's his argument.

[00:15:06] Speaker 00:
We disagree with the argument.

[00:15:07] Speaker 00:
We also have a jurisdictional concern with that argument, because again, it wasn't properly before the board.

[00:15:12] Speaker 00:
The board was empowered to review the adverse action of his removal.

[00:15:16] Speaker 00:
That removal has been rescinded.

[00:15:18] Speaker 00:
And so therefore, there's no more jurisdictional basis for the court to have considered this other argument about the nature of his appointment.

[00:15:25] Speaker 03:
Well, if the removal were not rescinded, would they have jurisdiction to consider this issue?

[00:15:29] Speaker 00:
No, the only jurisdiction that they had to consider the nature of the appointment was to determine whether he has Chapter 75 status and therefore the ability to challenge the adverse action.

[00:15:41] Speaker 00:
Mr. Tobey's not established that the MSPB would have had jurisdiction.

[00:15:45] Speaker 00:
Maybe there's some other forum to challenge

[00:15:47] Speaker 00:
Well, my appointment was for one year, two days.

[00:15:49] Speaker 00:
It should have been only one year.

[00:15:50] Speaker 00:
And so therefore, there's an issue here.

[00:15:52] Speaker 00:
He hasn't established that the MSPB has any jurisdiction to entertain an argument of that age.

[00:15:58] Speaker 03:
He pointed us to some cases that he cites on page 15, or 15 and 16, I guess, of his blue brief.

[00:16:06] Speaker 03:
So is there any legal basis for an allegation that the appointment was unlawful?

[00:16:13] Speaker 03:
And therefore, he should be converted to a career employee.

[00:16:16] Speaker 00:
No, Your Honor.

[00:16:17] Speaker 00:
The Sheposka case does not have that outcome at all.

[00:16:21] Speaker 00:
The issue in that case was the employee had been hired

[00:16:25] Speaker 00:
the agency said mistakenly under the wrong appointment authority.

[00:16:30] Speaker 00:
And then they went back and tried to change it.

[00:16:32] Speaker 00:
And the court had understandably took issue with trying to retroactively change him to the status that they had meant to hire him under.

[00:16:41] Speaker 00:
And that was the difference here.

[00:16:43] Speaker 00:
Here there was no change.

[00:16:44] Speaker 00:
He was initially hired under the

[00:16:47] Speaker 03:
terms of a... But you agree that the term appointment, the time he actually worked exceeded what was necessarily legal for a term appointment.

[00:16:57] Speaker 00:
The time that he worked did not, but the time that was on the appointment was likely for an administrative mistake.

[00:17:04] Speaker 04:
It was a term appointment by name only.

[00:17:07] Speaker 04:
By operational law, that was not a term appointment.

[00:17:11] Speaker 04:
He became an employee under the statute at the expiration of that one year.

[00:17:17] Speaker 04:
and later the government's c

[00:17:21] Speaker 00:
Right?

[00:17:22] Speaker 00:
The government never conceived that, but the board did find that.

[00:17:24] Speaker 00:
That's the board's finding that he became an employee.

[00:17:26] Speaker 04:
OK, so he's a federal employee under the statute.

[00:17:29] Speaker 04:
And he's entitled by operation of the law to appeal to the MSPB.

[00:17:33] Speaker 00:
Correct, Your Honor.

[00:17:34] Speaker 00:
OK.

[00:17:34] Speaker 00:
To appeal his removal for misconduct, which has been rescinded.

[00:17:37] Speaker 00:
So there's no more.

[00:17:40] Speaker 00:
That is a separate question of whether he has the right to appeal an adverse action like a removal for misconduct versus removal of him.

[00:17:47] Speaker 03:
Well, even though you repealed the removal for misconduct,

[00:17:51] Speaker 03:
If, in fact, it was an illegal appointment and the appointment exceeded the one year, did he have a legal basis for staying on and saying, hey, I'm not leaving?

[00:18:01] Speaker 03:
Forget the removal.

[00:18:03] Speaker 03:
Hey, I'm here because the appointment was illegal, and you can't just willy-nilly stop me on day 367.

[00:18:11] Speaker 00:
No, Your Honor, because the expiration of his term has been found by the board and the court to not be an appealable adverse action.

[00:18:19] Speaker 00:
His term was always at that point.

[00:18:22] Speaker 00:
Also, Mr. Tobey, the counsel refers to the need to regularize.

[00:18:27] Speaker 00:
So he argues here that the need to regularize means that he would have had to have this reinstatement to a career status.

[00:18:33] Speaker 00:
But that's not the case.

[00:18:35] Speaker 00:
What regularized means under this court's jurisprudence is to remove the illegal

[00:18:40] Speaker 00:
portion to correct the illegal portion of the appointment.

[00:18:43] Speaker 00:
In this case, the illegal portion of the appointment was the excess two days.

[00:18:47] Speaker 00:
So it doesn't always have to, it's not the case that it always has to adhere to the benefit of the employee.

[00:18:52] Speaker 04:
And the misconduct.

[00:18:55] Speaker 04:
The misconduct was also removed.

[00:18:57] Speaker 00:
Yes, the misconduct removal was rescinded.

[00:19:01] Speaker 00:
But yes, the illegal portion of the appointment is the extra two days.

[00:19:06] Speaker 00:
So regularizing most naturally would mean removing those extra two days.

[00:19:10] Speaker 00:
And it can be the case that that regularization takes the form of something that's not in the employee's benefit.

[00:19:17] Speaker 00:
One of the cases relied on by Mr. Tobey is this Avalos case that this court

[00:19:22] Speaker 00:
had in 2020 and in that case the regularization decision ended up in the removal of the employee and this court held that to be correct and reasonable.

[00:19:34] Speaker 01:
Does the fact that you haven't yet paid the interest mean that the case is somehow not moot?

[00:19:39] Speaker 00:
no your honor the interest has been offered in fact this court this is a case that's not in our brief but one comparison it's also a non-precedential decision but the court recently looked at an issue where an agency had offered the full relief in that case it was CRS

[00:19:56] Speaker 00:
CSRS makeup deposits and the agency had said we're going to allow you to make those the petitioner took the position that well I haven't actually been made the deposits yet so the case is not moot and the port found no they've told you they're going to do that there's no indication that they're not going to hear the you just mentioned is not in your brief what's the situation I'm sorry

[00:20:26] Speaker 00:
Wells versus Merit Systems Protection Board.

[00:20:29] Speaker 00:
It's at 730F appendix 909.

[00:20:34] Speaker 00:
And the pin citation is 912.

[00:20:37] Speaker 00:
And that's a 2018 case of this court.

[00:20:42] Speaker 00:
So again, to clarify, we've sent numerous emails to counsel offering to pay the interest by direct deposit.

[00:20:49] Speaker 03:
Going back to the merits of this, or whatever we're going to call it.

[00:20:53] Speaker 03:
I mean, you can see there were at least two errors that I see on the government's end of this.

[00:20:58] Speaker 03:
Then we have to figure out what the consequence of those errors are.

[00:21:02] Speaker 03:
One, I don't know how it would happen, but a term appointment under the statute is one year.

[00:21:07] Speaker 03:
And this thing they put in writing exceeded one year.

[00:21:09] Speaker 00:
Correct.

[00:21:10] Speaker 03:
So that was one problem.

[00:21:12] Speaker 03:
The other problem was that somebody decided to remove him

[00:21:17] Speaker 03:
as opposed to just let his term appointment expire.

[00:21:22] Speaker 03:
So I'm a little sympathetic to the other side, because I think this case has necessarily snowballed into something much more complicated.

[00:21:31] Speaker 03:
And that's a result of some of the stuff that went on below, right?

[00:21:38] Speaker 00:
Correct, Your Honor.

[00:21:38] Speaker 00:
But I would say that the removal was for serious misconduct, which is reflected in the record.

[00:21:43] Speaker 00:
It's not really an issue here, because Mr. Doby denies that it took place.

[00:21:47] Speaker 00:
But it was very serious misconduct.

[00:21:49] Speaker 00:
And that's why the agency took the action that it did, notwithstanding the fact that there were two agents.

[00:21:54] Speaker 03:
But then it realized, whoops, we're into MSPB land.

[00:21:57] Speaker 03:
So we don't need to remove him, because this term appointment, notwithstanding that it may not be kosher, allows us to remove him as of such and such a day.

[00:22:08] Speaker 00:
I can't say the rationale, but that was the effect anyway.

[00:22:13] Speaker 00:
Yes, the rescission of the removal meant that because there was only two days left, they paid him for the two days.

[00:22:19] Speaker 00:
And that gives him the full relief that he would have been entitled to because that was the expiration of his appointment.

[00:22:25] Speaker 04:
Well, at that point, he was entitled a right to appeal to the MSPB.

[00:22:29] Speaker 04:
To appeal the adverse action.

[00:22:32] Speaker 04:
When he gets to the MSPB, then you're arguing there's no jurisdiction here.

[00:22:37] Speaker 00:
There was jurisdiction to appeal the removal, but the removal has been rescinded.

[00:22:42] Speaker 00:
So that's what moots that part.

[00:22:44] Speaker 00:
And so it's a lack of jurisdiction because of mootness.

[00:22:46] Speaker 00:
There was no jurisdiction to challenge the two extra days on the appointment under this theory that that transforms it into a permanent employment.

[00:22:57] Speaker 00:
There's no MSPB jurisdiction for that.

[00:22:59] Speaker 00:
The MSPB is empowered to hear adverse action appeals, some other, but... So, in your view, what issues are outstanding right now?

[00:23:08] Speaker 00:
None, Your Honor.

[00:23:08] Speaker 00:
The cases move because they... No, no, wait a minute.

[00:23:11] Speaker 04:
What about attorney fees?

[00:23:12] Speaker 00:
Attorney's fees, certainly it doesn't impact upon the issue of moodness.

[00:23:18] Speaker 00:
The court has consistently held that that's a peripheral issue.

[00:23:22] Speaker 00:
Whether or not Mr. Tobey is entitled to attorney's fees would be up to the board if he were to file a petition.

[00:23:27] Speaker 00:
We're aware of no petition for attorney's fees to this point.

[00:23:30] Speaker 00:
I will say it's my understanding of the MSPB law that because the agency took this action voluntarily, that ordinarily no attorney's fees would be due.

[00:23:39] Speaker 00:
Mr. Toby certainly can present an argument if he doesn't believe that that's the right result there and that will be analyzed by the board.

[00:23:46] Speaker 03:
Thank you.

[00:23:47] Speaker 00:
Thank you.

[00:23:48] Speaker 03:
Okay, will we restore four minutes of rebuttal if you need it?

[00:23:54] Speaker 05:
I'm sorry, how much time do we have?

[00:23:55] Speaker 05:
Four minutes.

[00:23:56] Speaker 05:
Okay, thank you.

[00:23:57] Speaker 05:
Let me address a couple of things here.

[00:24:02] Speaker 05:
Mr. Toby was not removed from his condo.

[00:24:07] Speaker 04:
He was not what?

[00:24:08] Speaker 05:
He was not removed for misconduct.

[00:24:12] Speaker 05:
The removal states that it is a removal for expiration of the term.

[00:24:20] Speaker 05:
Now.

[00:24:22] Speaker 03:
He never got a rem- or the one that wasn't something rescinded that was a removal for misconduct?

[00:24:28] Speaker 05:
No.

[00:24:30] Speaker 05:
Well, what was rescinded was the removal for expiration of the term.

[00:24:41] Speaker 05:
If he had been removed from his conduct, being a statutory employee, he would have had a right to appeal, to respond to that proposed removal, and he would have had a right to appeal that removal to the board.

[00:24:59] Speaker 04:
So the point... It was my understanding that he was removed.

[00:25:03] Speaker 04:
It was my understanding that he was removed for misconduct.

[00:25:06] Speaker 04:
No.

[00:25:07] Speaker 04:
And that later they pulled back the misconduct and said, no, we're removing you because your term had expired.

[00:25:13] Speaker 05:
That's not the case?

[00:25:14] Speaker 05:
I don't believe that's the case.

[00:25:17] Speaker 05:
It's very clear.

[00:25:19] Speaker 05:
There is mention of misconduct in the removal letter.

[00:25:27] Speaker 05:
There is mention.

[00:25:28] Speaker 05:
However, it's very clearly stated in there that the removal is for after.

[00:25:35] Speaker 02:
Can you give us a site of the appendix for the removal letter?

[00:25:39] Speaker 02:
Can you give us an appendix site for the removal letter?

[00:25:42] Speaker 02:
Maybe not.

[00:25:47] Speaker 02:
Reject.

[00:25:49] Speaker 02:
Well, it's got to be in here.

[00:25:51] Speaker 05:
I would think so.

[00:25:54] Speaker 05:
Well, I'm looking for that.

[00:25:56] Speaker 05:
The other thing I would like to point out is that the Lord considers regularization as an adverse action that can be appealed to the Lord.

[00:26:09] Speaker 01:
Is it supplemental appendix page 5?

[00:26:13] Speaker 01:
Looking for the removal letter, is it supplemental appendix page 5 in the red brief?

[00:26:17] Speaker 05:
I'm sorry.

[00:26:20] Speaker 01:
I'm sorry.

[00:26:20] Speaker 01:
Let me speak up.

[00:26:21] Speaker 01:
Is it supplemental appendix page five in the red brief answering the question about the removal letter?

[00:26:28] Speaker 01:
I'm asking if that's the right page.

[00:26:30] Speaker 02:
I don't know.

[00:26:31] Speaker 02:
I don't know.

[00:26:36] Speaker 03:
Well, this refers to, in connection with the later, this is dated September 24, so I actually don't think this is the removal letter.

[00:26:43] Speaker 03:
It refers to a letter dated February 25.

[00:26:47] Speaker 03:
given notice that he was being terminated because of misconduct.

[00:26:52] Speaker 03:
So I don't know.

[00:26:54] Speaker 03:
Where is that?

[00:26:55] Speaker 03:
February 25th.

[00:26:56] Speaker 03:
23rd, though.

[00:26:58] Speaker 03:
So it's in the red brief, government's brief.

[00:27:02] Speaker 03:
They submitted it in appendix one.

[00:27:03] Speaker 03:
Yeah.

[00:27:05] Speaker 03:
Yeah.

[00:27:06] Speaker 03:
OK.

[00:27:08] Speaker 03:
Go ahead.

[00:27:09] Speaker 03:
We don't want to take up your time.

[00:27:10] Speaker 03:
OK.

[00:27:11] Speaker 05:
Well, like I said, the other thing is that regulars

[00:27:17] Speaker 05:
I'm having trouble saying that word.

[00:27:19] Speaker 05:
Regularization is an adverse action that can be abused or reported.

[00:27:25] Speaker 05:
So what I'm getting at is procedurally what should happen is this case should be remanded to the administrative judge, who in turn should remand it to the agency to be regularized.

[00:27:46] Speaker 05:
Okay.

[00:27:47] Speaker 03:
And by regularized you mean because the term appointment initially exceeded one year.

[00:27:55] Speaker 03:
Exactly.

[00:27:56] Speaker 03:
It should necessarily as a matter of law become a regular employment thing and your case for that is the one you cited to me earlier.

[00:28:05] Speaker 05:
I forget which case that was.

[00:28:11] Speaker 05:
But the point is that the end result may be

[00:28:16] Speaker 05:
they still may maintain that it is a term appointment of one year and two days.

[00:28:26] Speaker 05:
However, because that is an adverse action, that regularization, Mr. Tobey would have the right to appeal that determination

[00:28:40] Speaker 05:
to the regional office, and he would have a right to have the board decide whether or not the regularization was appropriate.

[00:28:56] Speaker 05:
There's some due process rights here that are being short-term.

[00:29:03] Speaker 04:
I sympathize with your client.

[00:29:05] Speaker 04:
I mean, it just seems to me that the government has backpedaled several times and has put your client in untenable positions.

[00:29:15] Speaker 04:
And it also appears to me that with the MSPB not having a quorum, you had to wait years to get to- Five years.

[00:29:26] Speaker 04:
You had to wait five years to get to where you are now, and that should not have happened.

[00:29:31] Speaker 04:
However, I still don't see what it is that we can do for you.

[00:29:36] Speaker 04:
It seems to me that all your arguments have been made.

[00:29:41] Speaker 04:
And whatever relief that you've been praying for, that you've been asking for, it's been granted.

[00:29:48] Speaker 04:
I don't see how this case has not moved.

[00:29:52] Speaker 04:
So let's address that.

[00:29:56] Speaker 05:
If I might paraphrase it.

[00:30:01] Speaker 05:
is moot only if, as a matter of law, it was an appointment for one year and two days.

[00:30:14] Speaker 05:
If there's any chance that it could be for something different, then the case is not moot.

[00:30:25] Speaker 05:
And our argument is that based

[00:30:31] Speaker 05:
Well, it's an illegal appointment.

[00:30:35] Speaker 05:
There's no such thing under that appointing authority other than something less than one year.

[00:30:43] Speaker 05:
And here we have something more than one year.

[00:30:47] Speaker 05:
So what should that be?

[00:30:51] Speaker 05:
What should the appointment be?

[00:30:54] Speaker 03:
I just want to ask you one final question.

[00:30:55] Speaker 03:
I'm sorry.

[00:30:55] Speaker 03:
My colleagues are here.

[00:30:57] Speaker 03:
I mean, where is the harm?

[00:31:00] Speaker 03:
If I get appointed, and I think I've got it, it's called a temporary appointment.

[00:31:04] Speaker 03:
And it happens that it unlawfully, arguably, exceeds the one year.

[00:31:09] Speaker 03:
It's one year and one day.

[00:31:13] Speaker 03:
Have I been prejudiced for that?

[00:31:16] Speaker 03:
What was my expectation?

[00:31:18] Speaker 03:
My expectation is I have a term appointment.

[00:31:22] Speaker 03:
My expectation is, even though it's called a term appointment, because it's for over one year, it's really a career conditional employment?

[00:31:29] Speaker 03:
That was my expectation.

[00:31:30] Speaker 05:
My expectation is, because I worked in New Jersey and obtained career status, and because I am preferably eligible, that I should receive, I should have received,

[00:31:46] Speaker 03:
So he didn't think this was a term appointment, even though it was dubbed a term appointment.

[00:31:52] Speaker 03:
And he didn't think this was an appointment that would expire at the end of 367 days, even though that's what the appointment said.

[00:32:00] Speaker 05:
No, he didn't.

[00:32:01] Speaker 05:
That's what he's told me.

[00:32:02] Speaker 05:
He thought that he was a career employee based on his prior service.

[00:32:11] Speaker 03:
And that the term title term appointment or the time frame

[00:32:16] Speaker 03:
in his letter of appointment was not relevant or dispositive.

[00:32:22] Speaker 03:
I thought he was being given a permanent job.

[00:32:28] Speaker 03:
All right.

[00:32:28] Speaker 03:
Well, thank you.

[00:32:30] Speaker 05:
I think all of you seem to understand, appreciate the opportunity to argue the case.

[00:32:40] Speaker 03:
Thank you.

[00:32:40] Speaker 03:
Thank you.