[00:00:00] Speaker 02:
Next argument is 22-2003 Torres versus DHS.

[00:00:25] Speaker 02:
Is it Sakai?

[00:00:26] Speaker 02:
Yes.

[00:00:27] Speaker 02:
Please proceed.

[00:00:40] Speaker 05:
Thank you, Your Honors.

[00:00:41] Speaker 05:
Good morning.

[00:00:42] Speaker 05:
May it please the Court.

[00:00:43] Speaker 05:
My name is Howard Sakai on behalf of the petitioner, Kristen Torres.

[00:00:47] Speaker 05:
We ask this Court to vacate the arbitrator's decision and to remand for determination of a mitigated penalty for two related reasons.

[00:00:57] Speaker 05:
First, the penalty of removal of gear constitutes an abuse of discretion in that it is unreasonably harsher than that imposed on other law enforcement officers in the very same agency for the very same type of offense, and because the arbitrator categorically and unreasonably rejected Mr. Torres's

[00:01:16] Speaker 04:
potential for rehabilitation.

[00:01:34] Speaker 04:
But we're operating under an abusive discretion standard, which is really incredibly high for you.

[00:01:40] Speaker 04:
And as long as the arbitrator's decision explains itself and is within, as I understand the language of describing this, the reasonable bounds of all possibilities, then we can't do anything.

[00:01:53] Speaker 04:
So why is this not within the reasonable bound, particularly when the agencies own the chart that says possible penalties?

[00:02:03] Speaker 04:
for a first offense for this type of penalty includes removal.

[00:02:08] Speaker 05:
Sure, Your Honor.

[00:02:09] Speaker 05:
And we understand that obviously it is within the range.

[00:02:13] Speaker 05:
And obviously the standard review here is, as you said, very much deferential and difficult.

[00:02:20] Speaker 05:
We believe this case is one of the few exceptions.

[00:02:23] Speaker 05:
The reason

[00:02:24] Speaker 04:
The disparate treatment here.

[00:02:45] Speaker 04:
Now, the arbitrator said that's because the deciding official in that case didn't note any possible deep labor problems.

[00:02:52] Speaker 04:
I mean, that seems to be a reasonable distinction.

[00:02:55] Speaker 04:
It may be that the deciding official got it wrong, but what can we do about that?

[00:02:59] Speaker 05:
Okay, Your Honor, that is indeed the crux of the issue here, okay?

[00:03:03] Speaker 05:
Of course that HSI, Homeland Security Investigations investigator, of course he was jiggly-o-impaired.

[00:03:10] Speaker 05:
By law, he was jiggly-o-impaired.

[00:03:12] Speaker 05:
The fact that the agency did not even mention in its decision

[00:03:17] Speaker 05:
is actually troubling and problematic in of itself, because it would be a violation of the law for the agency to not turn that over to the prosecution, and worse, the prosecution not to turn that over, that type of evidence, falsification, misrepresentation.

[00:03:33] Speaker 05:
So whether they mention it or not, whether they rely upon it or not, he's jiggly-o impaired.

[00:03:38] Speaker 05:
And no more and

[00:03:41] Speaker 05:
In fact, sorry, equally as Mr. Torres, and in fact, because of the nature of his position, in all likelihood, much greater jiggly old pair than Mr. Torres.

[00:03:51] Speaker 04:
I get that and it seems like the agency needs to be consistent if it's going to use this, but I also worry about

[00:03:57] Speaker 04:
requiring the agency to have a one-size-fits-all rule.

[00:04:01] Speaker 04:
Because it seems to me, in some circumstances, even if they give the lead on care, the agency can still decide, well, that's not enough to fire them.

[00:04:12] Speaker 04:
or the like because we can still, you know, make use of them.

[00:04:16] Speaker 04:
How do we know that's not what happened in that comparative case?

[00:04:19] Speaker 05:
Because, Your Honor, there is the record, respectfully, is devoid of any of that additional evidence that would turn their conclusion that he's particularly impaired and therefore lacking rehabilitative potential to turn that into anything other than conclusory.

[00:04:36] Speaker 05:
Because if you take that away, there is nothing there, respectfully.

[00:04:41] Speaker 02:
evidence about how often Mr. Torres had to, during his time with DHS, offer testimony?

[00:04:49] Speaker 05:
So this came up late in the briefing, so there wasn't an opportunity for it to be developed on the record.

[00:04:55] Speaker 05:
So the court can take judicial notice of the distinction between ERO, Enforcement Removal Operations, where deportation officers are situated, as opposed to

[00:05:08] Speaker 05:
Homeland Security Investigations, SSI, which are the detectives of ICE.

[00:05:12] Speaker 05:
I could submit on good faith it's not in the record that Mr. Torres has testified only once in his career when he was in training and was getting exposure to a case that he normally does not work on.

[00:05:26] Speaker 05:
I could say also in good faith that it is rare for deportation officers to testify.

[00:05:32] Speaker 05:
His workplace performance appraisals indicate very little work on prosecutions, and this is in stark contrast to what HSI does.

[00:05:41] Speaker 05:
They are the detectives of the agency.

[00:05:43] Speaker 05:
They're the ones swearing out warrants, affidavits, and testifying in court because they're making cases.

[00:05:51] Speaker 02:
You know, the fact that the agency didn't... It seems like so much of the deciding officials' rationale in this case was the potential for a legal impairment for law students.

[00:06:05] Speaker 02:
What that means is

[00:06:06] Speaker 02:
Whenever you have a law enforcement officer and they're found guilty of something that amounts to misrepresentation or fraud, there's a concern about their later ability to offer truthful testimony in court.

[00:06:17] Speaker 02:
Will they be able to effectively give testimony or, you know, using them as the relevant law enforcement officer when they have this in their background does it automatically make them someone who cannot be trusted and therefore will undermine the agency and not be able to perform their job.

[00:06:32] Speaker 02:
So given that the designing official put so much emphasis on the Giglio rationale, is there any obligation on the part of the agency to discuss or identify the type of job in which the person is in and the likelihood that their job would actually require them to give testimony?

[00:06:54] Speaker 02:
Because there are some law enforcement officers that never give testimony, and there are others that testify all the time.

[00:06:58] Speaker 02:
So given that this second official put so much of an emphasis on that one thing to the exclusion of his otherwise perfect employment history, what obligation, if any, does the law require of the agency to offer proof?

[00:07:14] Speaker 05:
Your Honor, that's an excellent point.

[00:07:17] Speaker 05:
I think that in order to do the Douglas Factors do justice and observing the totality of the circumstances, there cannot be just a categorical rejection of a type of job or a type of conduct.

[00:07:32] Speaker 05:
That is the telltale of what the end result should be, and that is clear from this court's case law.

[00:07:39] Speaker 05:
I do think that we're

[00:07:41] Speaker 05:
the arbitrator did find that this was a significant critical aggravating factor.

[00:07:48] Speaker 05:
And when you look through the briefing and you look at his decision, it's clear that he erroneously, incorrectly assumed that that had nothing to do with that HSI investigator.

[00:08:00] Speaker 05:
How do you realize that?

[00:08:01] Speaker 05:
And had you saw that this critical aggravating effect was actually a factor, whether anyone wants to admit it or not, in that other case, then we realize that this case is on all fours.

[00:08:14] Speaker 05:
If that individual, who's likely testifying much more than Mr. Torres or any other deportation officer, if he can be rehabilitated, then why can't Mr. Torres?

[00:08:24] Speaker 05:
So it's not that that automatically means it goes one way or the other.

[00:08:29] Speaker 03:
a forward-going process is evaluation when they look here at this course and say, for these reasons, this individual can be rehabilitated.

[00:08:41] Speaker 03:
Whereas rehabilitated determined by the history of the employee, and in this case, exemplary reviews that he had and things of that nature.

[00:08:56] Speaker 03:
Where's it both?

[00:08:57] Speaker 05:
I'm sorry, I missed the first part of your question.

[00:09:00] Speaker 03:
Is there a path forward for?

[00:09:11] Speaker 05:
Well, Your Honor, I think that all is relevant and can be relevant.

[00:09:15] Speaker 05:
I think we want to take, we obviously look at the nature of the conduct.

[00:09:18] Speaker 05:
It was serious.

[00:09:19] Speaker 05:
It was undeniably wrong, and you recognize that.

[00:09:22] Speaker 05:
That recognition should be taken into account.

[00:09:25] Speaker 05:
This was clearly aberrant, okay?

[00:09:27] Speaker 05:
It was undeniably- It should be clear.

[00:09:29] Speaker 02:
He recognized it after he got caught.

[00:09:31] Speaker 02:
You know, like, I mean, it's not like he came forward and said, okay, look, I gotta admit something.

[00:09:35] Speaker 02:
I did this thing wrong.

[00:09:37] Speaker 02:
He got, his hand was in a cookie jar, and then he brought his hand to the cookie jar.

[00:09:42] Speaker 05:
Understood your honor, but nonetheless he is here profoundly remorseful and Understands that this will never happen again It cannot happen again and it clearly she he was this is an aberrant exercise If you look at his unblemished 11-year career like that HSI investigator who had eight years

[00:10:03] Speaker 04:
Suppose that instead of his position, he had an investigator position and that the record showed that he testified on an almost monthly basis.

[00:10:16] Speaker 04:
Would that make this case different even if another investigator had not been removed for a first offense?

[00:10:22] Speaker 05:
It's an excellent question, Your Honor.

[00:10:23] Speaker 05:
I think it would make the case harder.

[00:10:26] Speaker 05:
Certainly, they would have an additional reason.

[00:10:28] Speaker 04:
And that assumes that deciding the defendant went through this and said, even though this is the first offense, he is a person that regularly testifies before us on a monthly basis, and we're going to have to disclose this in every single case, and he's going to get cross-examined.

[00:10:44] Speaker 04:
I think that in that instance, you might have a really tough uphill battle on abuse of discretion, even if you have a comparator that wasn't suffering from the same putbacks.

[00:10:54] Speaker 05:
Your Honor, I agree.

[00:10:55] Speaker 05:
I think in that case, that would be much more difficult.

[00:10:58] Speaker 05:
It could still make the argument you would have.

[00:11:00] Speaker 05:
In fact, you would have an inconsistency between the rehabilitative potential analysis conflicting with a clear disparate penalty.

[00:11:09] Speaker 04:
But I guess my problem in that hypothetical reliant on the comparator

[00:11:13] Speaker 04:
You know, that decision maybe didn't do a good job of explaining why there was rehabilitation aspects or not, but I don't know that we can fault the agency retrospectively for not explaining it.

[00:11:24] Speaker 04:
Maybe they were going to reassign that person to some other position or the like.

[00:11:28] Speaker 04:
If it's not in the record, we don't know that.

[00:11:30] Speaker 04:
What we know is what's in this record.

[00:11:32] Speaker 04:
But in this record, at least as far as I understand, and, you know, I'm not going to, you know, consider your representations without us testifying because it's not in the record, but you can just look at,

[00:11:43] Speaker 04:
his job duties and see that it's not likely.

[00:11:46] Speaker 04:
And we'll see if the government disputes that.

[00:11:49] Speaker 04:
But the unexplained nature of the equally impairment in the deciding official seems troubling here, where it wouldn't if they gave a more fulsome analysis of what impact it would have had.

[00:12:02] Speaker 05:
Understood, Your Honor.

[00:12:03] Speaker 05:
And I think the distinction here, to answer that point directly, is that the sole basis for finding that he had no rehabilitative potential was because of the Jiglio impairment.

[00:12:14] Speaker 05:
But if we follow that line of reasoning, then you're just leaving down clear imposition of disparate and arbitrary penalties.

[00:12:22] Speaker 04:
Either that or every law enforcement agency in the Federal Government that disciplines somebody for anything related to falsification or dishonesty has to fire them.

[00:12:32] Speaker 05:
Well, there shouldn't be, we're not arguing that there's a clear line one way or the other.

[00:12:37] Speaker 05:
But we cited cases.

[00:12:39] Speaker 01:
That's a friendly question.

[00:12:44] Speaker 01:
Just say yes.

[00:12:45] Speaker 05:
Sit down and take a little bit of time.

[00:12:47] Speaker 05:
With that, I'll reserve the roommate.

[00:12:50] Speaker 05:
Wait, you're going the wrong seat.

[00:12:57] Speaker ?:
You're over here.

[00:13:12] Speaker 00:
May it please the court.

[00:13:13] Speaker 00:
This is a classic case of the agency's broad discretion to decide.

[00:13:19] Speaker 04:
So look, I know you're stuck with the facts.

[00:13:21] Speaker 04:
You don't work at the AHS or the Justice Department.

[00:13:24] Speaker 04:
You're here to do your best.

[00:13:25] Speaker 04:
But this case has all the hallmarks of them using this as an excuse to get rid of an employee they don't think is a highly performing employee.

[00:13:35] Speaker 04:
I've been around these cases a lot.

[00:13:36] Speaker 04:
I have to look at his performance evaluation record

[00:13:40] Speaker 04:
he is not in the agency's view a high performing employee.

[00:13:44] Speaker 04:
And when the deciding official gives no explanation of how this Guglio impairment is going to impact his continued job performance, that is really suspect.

[00:13:56] Speaker 04:
I mean, aren't they at least required to explain for somebody that doesn't work as an investigator, that works as somebody that takes people back and forth on airplanes, how Guglio impacts their job duties?

[00:14:11] Speaker 00:
Your Honor, based on the record, it's clear that the job responsibility of a deportation officer, based on his performance work plans, that he is subject to investigating potential.

[00:14:30] Speaker 04:
I understand that it's in the job duties and the performance work plans.

[00:14:39] Speaker 04:
Is it actually in his duties, and if it was, why didn't the deciding official explain that more fully?

[00:14:46] Speaker 04:
I mean, I think if the deciding official had said, this person testifies on a regular basis,

[00:14:54] Speaker 04:
then you wouldn't have a child problem.

[00:14:56] Speaker 04:
Now, of course, if that's not true, then let's just assume, even though his performance works by end, and his job duties and his official appointment say testifying and investigating and testifying, let's just assume that he has never done that.

[00:15:14] Speaker 04:
The council represented it once, but for the hypothetical, let's just assume in his entire, how many years he worked at the state PCA?

[00:15:20] Speaker 00:
For approximately 11 years.

[00:15:22] Speaker 04:
In 11 years, he has never once been called to testify in court.

[00:15:27] Speaker 04:
Then how does Iglio impact his continuing performance?

[00:15:32] Speaker 00:
It's the possibility that he can be called.

[00:15:36] Speaker 00:
And he is expected as part of his critical job responsibilities.

[00:15:40] Speaker 02:
And what I have with that is that that results in a conclusion which is not the policy of DHS as I understand it.

[00:15:48] Speaker 02:
But what you just articulated would suggest that every law enforcement officer, if there exists even the slightest possibility that they could be called to testify, must be fired for any conduct that suggests misrepresentation or fraud or any sort of question of credibility.

[00:16:07] Speaker 02:
And that's not, the range of penalties aren't written that way.

[00:16:09] Speaker 02:
The DHS policy's not written that way.

[00:16:11] Speaker 02:
But that was the answer you just gave to Judge Hughes.

[00:16:14] Speaker 02:
The answer you just gave to Judge Hughes affords no discretion within the agency.

[00:16:18] Speaker 04:
It does afford broad discretion and it's a range of punishment based on a table of penalties.

[00:16:31] Speaker 04:
the agency gets to determine, without any reasoned explanation, that if there's a falsification offense, that they might be legal and fair, and it's within your sole discretion to remove them or not.

[00:16:44] Speaker 04:
That may be true, but it has to be reasoned discretion.

[00:16:49] Speaker 04:
Otherwise, if you're just saying what I think you're saying is they're all subject to removal, you can't apply that arbitrarily.

[00:16:58] Speaker 04:
And so clearly, it is not going to be the policy of the United States government that everybody that commits a falsification offense has to be filed.

[00:17:06] Speaker 00:
That's correct.

[00:17:07] Speaker 00:
But here, it was not just a falsification offense.

[00:17:11] Speaker 00:
It was a falsification of certified records that not only happened once, but multiple times.

[00:17:17] Speaker 04:
I know.

[00:17:17] Speaker 04:
We're not talking about the severity of the penalty or the severity of the conduct here.

[00:17:21] Speaker 04:
It's bad.

[00:17:21] Speaker 04:
You should not have done this.

[00:17:23] Speaker 04:
But now we're talking about the rehabilitation of Douglas.

[00:17:27] Speaker 04:
And so all you have on that is possibly glial impairment for a person that doesn't look like they're ever going to testify very much.

[00:17:37] Speaker 00:
That's not the case, Your Honor.

[00:17:39] Speaker 00:
The record states, for example, at Appendix 160, one of his critical responsibilities is prosecution.

[00:17:47] Speaker 00:
And in that role, he has to be prepared to identify or present cases for civil or criminal proceedings.

[00:17:54] Speaker 04:
He can rely on theoretical job duties, because I bet a lot of these people that never testify have that in their job duties as well.

[00:18:03] Speaker 04:
And so that just allows the agency to say, no rule of limitations, even if there's zero possibility.

[00:18:11] Speaker 04:
Let me ask you, and this is not a trade culture.

[00:18:14] Speaker 04:
Same facts here, same job duties, everything.

[00:18:17] Speaker 04:
But because of what the office he works for, there is zero possibility that in this job he will ever testify.

[00:18:25] Speaker 04:
Is Giglio evasive for removal and no rehabilitation finding if there is zero chance that he will testify, even if it's in his job duties?

[00:18:38] Speaker 00:
Your Honor, it's not just about Giglio.

[00:18:41] Speaker 04:
I think you need to answer that question.

[00:18:45] Speaker 04:
I mean, that's a yes or no question.

[00:18:47] Speaker 04:
If he has zero chance of ever testifying, despite what his actual job duties sheet says, is Gieglio aces for removal?

[00:19:04] Speaker 00:
I think the assumption of the zero possibility is itself unlikely.

[00:19:11] Speaker 04:
And that's a- No, no, no.

[00:19:13] Speaker 04:
I'm not trying to trap you.

[00:19:15] Speaker 04:
I'm just trying to ask a hypothetical.

[00:19:17] Speaker 04:
And you're not giving me anything away if you answer the hypothetical candidly.

[00:19:23] Speaker 04:
And you know what the answer is.

[00:19:24] Speaker 04:
I know you know what the answer is.

[00:19:26] Speaker 04:
So just tell me what you think the answer is.

[00:19:28] Speaker 04:
If there is zero chance that this person will ever be called to testify, it's an absolute impossibility, his actual job duties, despite his position description, which may be overbroad, containing it.

[00:19:43] Speaker 04:
Giglio can't be a basis for firing somebody if they're never going to testify, right?

[00:19:50] Speaker 00:
Yes, that's correct.

[00:19:51] Speaker 00:
And that was not the only basis here.

[00:19:53] Speaker 04:
No, OK.

[00:19:54] Speaker 04:
That was my hypothetical.

[00:19:57] Speaker 04:
If that was the only basis here, then Giglio was not a sufficient basis to show lack of rehabilitation.

[00:20:07] Speaker 00:
It depends on managerial discretion, Your Honor.

[00:20:11] Speaker 04:
Well, where is the managerial discretion explained here?

[00:20:14] Speaker 04:
That's my real problem in this case is this signing official didn't sufficiently tie up his actual job duties with Euclid.

[00:20:24] Speaker 04:
Do you point me to anything in the record that specifically talked about, I am aware of what this person does, and he has or will be required to testify in the future?

[00:20:38] Speaker 00:
Not related to his role

[00:20:41] Speaker 00:
in terms of testifying in court and potentially being impeached under Giglio.

[00:20:47] Speaker 00:
But there is, at appendix 1109, when he testified before the arbitrator where he said that he lost confidence himself in Mr. Torres because there are often times when deportation officers are called upon to work independently without supervision.

[00:21:12] Speaker 00:
And he lost the ability for Mr. Torres to tell the truth and be honest.

[00:21:22] Speaker 04:
So I get that.

[00:21:23] Speaker 04:
But is that what the arbitrary relied on?

[00:21:26] Speaker 04:
I thought the basis for the arbitrary refining of rehabilitation was purely people, you know, and not the deciding threshold that complements.

[00:21:34] Speaker 00:
It was not only that.

[00:21:35] Speaker 00:
It was his role as a law enforcement officer that they're held to a higher standard of conduct.

[00:21:42] Speaker 00:
the fact that he could not trust his ability to tell the truth because he affirmed, he certified three times in an attempt to cover up his lies when as a deportation officer working in that role for the government for over 11 years, he knew better.

[00:22:01] Speaker 00:
But instead, at every opportunity to tell the truth, he decided to not tell the truth and to conceal it.

[00:22:12] Speaker 00:
And overall, that gravity of the offense is distinguishable from the criminal investigator case because a verbal statement that's incorrect, a misstatement or false statement is different than when you, as an officer before a court or before the government, when you're asserting something is accurate and the truth and you're affirming that in writing multiple times,

[00:22:40] Speaker 00:
to get more money or in terms of his time in attendance or his overtime, or in compliance with his deportation duties.

[00:22:53] Speaker 00:
In all those instances, he made false statements in writing and he's certified to that effect.

[00:22:59] Speaker 04:
I get all that, but doesn't that all go to severity of the effects and we're talking about rehabilitation?

[00:23:05] Speaker 00:
It does, Your Honor, and to the extent that

[00:23:09] Speaker 00:
You are reweighing the evidence here?

[00:23:11] Speaker 04:
That is not just court's role to do.

[00:23:18] Speaker 04:
is either arbitrary or precuous or not supported by substantial evidence or an abuse of discretion, whichever one you want to standard, whichever way you characterize it.

[00:23:28] Speaker 04:
Because he relied to me, as I read it, solely on the people I know.

[00:23:31] Speaker 04:
And if that's wrong, then he has to reconsider it.

[00:23:36] Speaker 04:
I'm not suggesting that this is not a severe offense.

[00:23:39] Speaker 04:
In other words, the penalty may be a significant one.

[00:23:43] Speaker 04:
But if the arbitrator is often considered one of the Douglas Factors, doesn't it have to come back?

[00:23:52] Speaker 00:
Your Honor, the way to give the relevant Douglas Factors to include the rehabilitative potential of Mr. Torres or the consistency of the punishment given across the agency for same or similar offenses

[00:24:10] Speaker 00:
That primarily lies within the agency's broad discretion.

[00:24:14] Speaker 00:
And even if this was remanded.

[00:24:17] Speaker 02:
It lies within their discretion, but they can't act arbitrarily, correct?

[00:24:22] Speaker 00:
That is correct.

[00:24:23] Speaker 02:
But I think the concern here that was expressed by Mr. Torres's attorney is there exists at least one other case in the same agency

[00:24:32] Speaker 02:
which has similar type of conduct and which resulted in only a 14-day suspension, despite the fact that that law enforcement officer is of a type more likely to offer testimony than Mr. Torres.

[00:24:47] Speaker 02:
So how is that not a comparator case and potentially relevant so that we ensure the agency is not acting arbitrarily?

[00:24:57] Speaker 00:
Your Honor, because all of that with the comparator case is speculation.

[00:25:02] Speaker 00:
The record is light in terms of what his supervisor or what, in that particular instance, considered.

[00:25:11] Speaker 00:
There is no reference.

[00:25:13] Speaker 04:
The record's pretty light on whether Mr. Torres is going to testify also.

[00:25:20] Speaker 00:
The record for that specific factor is light, but it's harmless error.

[00:25:27] Speaker 00:
So there's no indication that even if this case were to

[00:25:33] Speaker 00:
be remanded that the decision of the deciding official or the arbitrator would be any different, because the substantial evidence in this particular case, and not the case that Mr. Torres would like this court to consider to reweigh, in essence, how those Douglas factors should be considered, the evidence in this case supports that his direct first line supervisor and those above him, that the agency in this instance

[00:26:03] Speaker 00:
lost trust.

[00:26:04] Speaker 03:
and confidence in his ability to do- I wanted to ask you a question in that regard.

[00:26:09] Speaker 03:
And you dig right into the area I wanted to discuss.

[00:26:14] Speaker 03:
The deciding officials' use of trust and his confidence in whether Mr. Torres will be able to continue or not will be rehabilitated.

[00:26:24] Speaker 03:
I see that line in this case and in other similar type of cases.

[00:26:30] Speaker 03:
And I'm always left wondering, what?

[00:26:34] Speaker 03:
What groups?

[00:26:36] Speaker 03:
What support does the deciding official have in making that type of evaluation to say without any evidence, without any expert testimony or anything to say that this of course cannot be rehabilitated because I have lost trust in that.

[00:26:54] Speaker 03:
I believe this committee is an area where we approach an unreasonable decision by the deciding officer.

[00:27:07] Speaker 00:
Your Honor, the record indicates that the deciding officer did consider Douglas Factor 6.

[00:27:17] Speaker 00:
The record also indicates that the agency looked across nationwide for similar offenses regarding falsification or lack of candor.

[00:27:28] Speaker 03:
At what point does the personal, emotional level of trust of the deciding official come into play?

[00:27:38] Speaker 00:
It's not about personal.

[00:27:39] Speaker 03:
How are we supposed to review that?

[00:27:43] Speaker 03:
How can I review the deciding official's level of trust?

[00:27:45] Speaker 03:
There's nothing in the record that permits me to do that.

[00:27:50] Speaker 00:
There is substance in the record in terms of the testimony of the direct line supervisor, Mr. Torres, along with the deciding official.

[00:28:01] Speaker 00:
And no single factor is outcome-determinative.

[00:28:06] Speaker 02:
things that you've argued to us today is that, okay, there's potential particularly impairment, but there's also, is it, Mr. Ortega, is that the correct deciding official's name, Mr. Ortega?

[00:28:17] Speaker 00:
Yes, Your Honor.

[00:28:18] Speaker 02:
Mr. Ortega's testimony included that he had lost trust in Mr. Torres, is that correct?

[00:28:24] Speaker 00:
Yes, Your Honor.

[00:28:25] Speaker 02:
What do we do with the fact that during his testimony, on page 1117, in particular page 148 of that manuscript,

[00:28:35] Speaker 02:
deposition or testimony.

[00:28:37] Speaker 02:
What do we do with the fact that the reason he gave for having lost faith in Mr. Torres, the reason he gave for being suspicious that Mr. Torres would do this again is because he said he remembered that another officer said he didn't in fact come home early to see his family.

[00:28:57] Speaker 02:
He came home early for a different reason.

[00:28:59] Speaker 02:
And then, as I understand it in this record, that was investigated and proved to be completely untrue, that the other person who the deciding official thought was offering testimony that Mr. Torres had an ulterior motive, said that is completely false.

[00:29:16] Speaker 02:
So what do we do with that?

[00:29:17] Speaker 02:
To the extent that the deciding official said, I don't trust the guy, I agree with him, he said that.

[00:29:22] Speaker 02:
But the reason, the only reason he gave for not trusting him,

[00:29:27] Speaker 02:
was that he thought Mr. Torres had an ulterior motive, and he thought someone had represented that, that he had an ulterior motive for actually coming out.

[00:29:36] Speaker 02:
Because that would be different, right?

[00:29:37] Speaker 02:
For sure, if not only did the guy falsify his optimism, but on top of that, he was lying during the investigation on what happened.

[00:29:45] Speaker 02:
I mean, Mr. Torres was completely honest in this investigation.

[00:29:48] Speaker 02:
That's what was found by the officials.

[00:29:52] Speaker 02:
What do we make of the fact that Mr. Ortega's testimony seems to hinge, in some part,

[00:29:57] Speaker 02:
on this belief, this belief that turns out to be inaccurate, that there was evidence that Mr. Torres had this alteration.

[00:30:04] Speaker 00:
Your Honor, I have exceeded my time.

[00:30:06] Speaker 00:
May I answer your question?

[00:30:08] Speaker 02:
Yes.

[00:30:11] Speaker 00:
The record reflects that the deciding official considered Mr. Torres' basis for coming home early, and he disagreed that that was a justifiable basis.

[00:30:21] Speaker 00:
Mr. Torres

[00:30:23] Speaker 00:
repeatedly indicated it was just to be with his family.

[00:30:26] Speaker 02:
Are you familiar with what I'm talking about with Mr. Ortega on page 149?

[00:30:31] Speaker 02:
Are you familiar with this?

[00:30:33] Speaker 02:
Yes.

[00:30:33] Speaker 02:
Mr. Ortega claims that another DHS employee, that he believes another DHS employee, gave evidence that suggested that Mr. Torres did not come home early to see his family, the way he explained.

[00:30:46] Speaker 02:
And that turns out to be completely false.

[00:30:51] Speaker 02:
So what do we do with that?

[00:30:53] Speaker 02:
Because if Mr. Ortega thinks not only did the guy falsify stuff, but during the investigation he's lying about all of it, you know, you could kind of understand why he would have even less confidence.

[00:31:02] Speaker 02:
But it turns out that at least this rationale turns out to be completely untrue.

[00:31:08] Speaker 03:
Based on the chief's question and what I was asking you before, should we look at this situation as a reason why we should not trust the reasonableness of the decision of the deciding official?

[00:31:25] Speaker 00:
The reasonableness of the deciding official didn't just stem on the reason Mr. Torres provided for lying officially in certified records.

[00:31:38] Speaker 00:
It could have easily been resolved, whether it was to be with his family or for some other reason that does not justify his offense.

[00:31:49] Speaker 00:
And to the extent that this court disagrees.

[00:31:51] Speaker 02:
But it's not about justifying his offense.

[00:31:53] Speaker 02:
Don't be said that.

[00:31:54] Speaker 02:
What he said to you is Mr. Ortega, the deciding official, seems to have based

[00:32:00] Speaker 02:
part of his rationale on why Mr. Torres is not trustworthy, and therefore not capable of rehabilitation, on something that turned out to be completely wrong.

[00:32:11] Speaker 02:
There was no proof in this record anywhere that there was an alternative mode for Mr. Torres, yet Ortega thought that, and even told in his testimony, well, I think there's an affidavit in here that says this, and there wasn't.

[00:32:24] Speaker 02:
So, to the extent that we're talking about rehabilitation, we've got a deciding official that thinks

[00:32:30] Speaker 02:
Mr. Torres was lied during the investigation.

[00:32:32] Speaker 02:
He gave testimony to that effect.

[00:32:33] Speaker 02:
It turns out he's wrong.

[00:32:34] Speaker 02:
Didn't happen.

[00:32:36] Speaker 02:
What do you do with that?

[00:32:37] Speaker 02:
Doesn't that affect his analysis, potentially, about whether Mr. Torres is capable of rehabilitation?

[00:32:45] Speaker 00:
Your Honor, if there was any kind of error of that extent in what the deciding official considered or misunderstood in terms of what he believed,

[00:32:57] Speaker 00:
the record supported, what evidence there was to exist the basis of Mr. Torres' return, that would just

[00:33:06] Speaker 00:
be harmless based on his testimony of considering.

[00:33:09] Speaker 04:
Let me ask you this as a hypothetical.

[00:33:12] Speaker 04:
So we're still talking about rehabilitation.

[00:33:14] Speaker 04:
And let's just assume there's two basis for the deciding official's conclusion that there's no rehabilitation petition.

[00:33:21] Speaker 04:
One is people go.

[00:33:22] Speaker 04:
Let's assume that's off the board because we think that there's no evidence to show that he's actually going to have to testify.

[00:33:28] Speaker 04:
So you're left with your backup position, which was the deciding official said he lost trust in him.

[00:33:35] Speaker 04:
Let's assume that the deciding official's explanation for why he lost trust is just wrong.

[00:33:43] Speaker 04:
It's factually wrong.

[00:33:44] Speaker 04:
He didn't apprehend the true facts.

[00:33:46] Speaker 04:
How can we rely on that lost trust if it's based upon a factual mistake?

[00:33:52] Speaker 04:
And this is hypothetical, so don't tell me other things that support it.

[00:33:56] Speaker 04:
If those two things are wrong, one's based upon an arbitrary application of glial and one based on a factual misapprehension, you have no basis for the rehabilitation funding, right?

[00:34:08] Speaker 00:
Well, the way that the deciding officer considered Douglas Factor number one, the seriousness of the offense.

[00:34:14] Speaker 00:
No, no, no.

[00:34:14] Speaker 04:
We're talking about rehabilitating.

[00:34:17] Speaker 04:
Please, you know better than this.

[00:34:19] Speaker 04:
You have to answer the hypotheticals.

[00:34:21] Speaker 04:
Don't give the law students a misimpression that it's OK to do this.

[00:34:26] Speaker 04:
I don't want to talk about the severity of the offense.

[00:34:28] Speaker 04:
You win on the severity of the offense.

[00:34:30] Speaker 04:
All we're talking about is rehabilitation.

[00:34:32] Speaker 04:
And so the two proper arguments for no rehabilitation are just wrong.

[00:34:37] Speaker 04:
We have to send it back again, right?

[00:34:39] Speaker 04:
I know you don't agree with the hypothetical, but if that's the case, you have to agree that it goes back.

[00:34:46] Speaker 00:
The government respectfully disagrees.

[00:34:48] Speaker 04:
No, you have to explain to me why you disagree then.

[00:34:51] Speaker 04:
I mean, you can't make that assertion.

[00:34:54] Speaker 04:
Your office knows better.

[00:34:59] Speaker 04:
I'm asking you a hypothetical which says there's only two basis for the no rehabilitation finding.

[00:35:05] Speaker 04:
They're both incorrect.

[00:35:06] Speaker 04:
There's no other basis.

[00:35:08] Speaker 04:
Then we have to send it back on rehabilitation, don't we?

[00:35:12] Speaker 00:
If it's limited to those specific factors, yes, Your Honor.

[00:35:17] Speaker 00:
But here we have a balancing test.

[00:35:19] Speaker 00:
There's no bright line rules.

[00:35:20] Speaker 00:
There's multiple factors for the agency and its broad discretion to consider.

[00:35:25] Speaker 00:
And the removal penalty here was substantially supported

[00:35:30] Speaker 00:
within their broad discretion.

[00:35:32] Speaker 00:
And the government respectfully requests that this court not reweigh that evidence and affirm the decision below.

[00:35:58] Speaker 05:
Thank you, Your Honors.

[00:35:59] Speaker 05:
May it please the Court?

[00:36:01] Speaker 05:
I'll be briefed two quick points on rebuttal.

[00:36:04] Speaker 05:
First, just to respond to what my

[00:36:07] Speaker 05:
opposing colleague has mentioned.

[00:36:10] Speaker 05:
For the purpose of Giguio, there is no difference between whether it was a written falsification or a verbal misrepresentation.

[00:36:18] Speaker 05:
With respect to the loss of trust, respectfully that exists for every single law enforcement officer who or any employee for that matter who has been charged with sustained charges

[00:36:31] Speaker 05:
of an act of dishonesty as we have here.

[00:36:34] Speaker 05:
The question really comes down to the Douglas Factor.

[00:36:37] Speaker 05:
Can that officer, can that employee be rehabilitated from that loss of trust?

[00:36:42] Speaker 05:
And the record here is wholly absent of that.

[00:36:47] Speaker 05:
And in addition, if Mr. Ortega, the deciding official, had as one of the bases for that loss of trust something that turns out to be not true, then indeed

[00:36:57] Speaker 05:
to your Honor's questions that would be grounds for the findings not being supported by substantial evidence.

[00:37:05] Speaker 02:
So what is the relief that you are seeking from us?

[00:37:10] Speaker 05:
So obviously, this court has the power to, it generally does not impose its own penalties.

[00:37:17] Speaker 05:
It generally vacates and remands below for a penalty.

[00:37:22] Speaker 05:
In this case, we are asking for mitigation.

[00:37:25] Speaker 05:
And then it would be up to the decision maker, in this case, the arbitrator, to determine the appropriate penalty that is something less harsh than removal.

[00:37:36] Speaker 02:
I like that answer.

[00:37:37] Speaker 02:
Thank you for not standing up and telling me that I should.

[00:37:40] Speaker 02:
decide a new penalty because that wouldn't be proper and you know I'm sure that you know you were maybe a little bit tempted to say that and it wouldn't be proper but the most we can give you is a vacated remand.

[00:37:52] Speaker 05:
That is correct your honor.

[00:37:54] Speaker 02:
Thank you counsel.

[00:37:55] Speaker 02:
I thank both counsels for these cases.

[00:37:57] Speaker 05:
Thank you your honors.