[00:00:00] Speaker 00:
Our next case for argument is 22-1575 Williams versus Bureau presence.

[00:00:07] Speaker 00:
Mr. Whitehead, please proceed when you're ready.

[00:00:09] Speaker 00:
Good morning, Your Honor.

[00:00:15] Speaker 03:
I'm so glad I'm not discussing patent law today.

[00:00:18] Speaker 03:
I'd be completely lost.

[00:00:20] Speaker 03:
We're here on a very simple forthright matter involving arbitration at FCC Beaumont, Texas.

[00:00:27] Speaker 03:
where an arbitrator failed to use his proper authority as a, in this disciplinary matter.

[00:00:35] Speaker 03:
You have our briefs, I could recount some simple facts, but what's important, legally speaking, is that there were two charges brought against this lady, failing to report contact with an inmate, which was denied, was then the proposed removal.

[00:00:54] Speaker 03:
What's supposed to happen as a matter of federal law is that if a particular matter is changed, then you have to go back and do your own Douglas Factor analysis.

[00:01:06] Speaker 03:
Arbitrator Bonney did not do that.

[00:01:08] Speaker 03:
In fact, he even stated in his opinion that if this was a private case, I'd feel very comfortable placing this lady back into service.

[00:01:18] Speaker 03:
But because I'm constrained by the agency's decision, that's not his role.

[00:01:22] Speaker 03:
That's an error of law.

[00:01:23] Speaker 00:
I don't know.

[00:01:23] Speaker 00:
I think you just understated his opinion.

[00:01:25] Speaker 00:
His opinion was the just and fair thing to do would be to set aside the removal.

[00:01:29] Speaker 03:
That's right.

[00:01:30] Speaker 03:
That's right.

[00:01:32] Speaker 03:
And he didn't do that.

[00:01:33] Speaker 03:
But he says he could.

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He was restrained by the agency.

[00:01:35] Speaker 03:
But that's his job, to make his own independent analysis.

[00:01:38] Speaker 03:
He didn't really run through a Douglas factor.

[00:01:40] Speaker 02:
Is that the Lachance case?

[00:01:42] Speaker 03:
Pardon me?

[00:01:42] Speaker 02:
Is that the Lachance case?

[00:01:44] Speaker 03:
Yes, it is.

[00:01:46] Speaker 02:
So you have to- Not all charges are sustained.

[00:01:48] Speaker 02:
The arbitrator or the board have to look at what would be

[00:01:54] Speaker 02:
What would the agency would have imposed absent that charge?

[00:01:58] Speaker 02:
That's correct.

[00:01:59] Speaker 02:
And it's in a range of penalties.

[00:02:01] Speaker 02:
And he didn't do that at all.

[00:02:02] Speaker 02:
He didn't do that at all.

[00:02:02] Speaker 02:
And there's nothing in the deciding official's final decision that suggests that he would have still sustained it if not all charges have been sustained.

[00:02:11] Speaker 02:
No, it's not.

[00:02:12] Speaker 03:
That's this case very simply while we're before, Your Honors, and I don't want to belabor the point.

[00:02:17] Speaker 03:
It's not that complex.

[00:02:19] Speaker 03:
It's straightforward.

[00:02:20] Speaker 03:
Our briefs are quite well-reasoned.

[00:02:23] Speaker 03:
And my opponent's brief is really reciting what the arbitrator said.

[00:02:30] Speaker 03:
We're asking you to remand this matter to Arbitrator Bonnett.

[00:02:33] Speaker 03:
Properly do his analysis.

[00:02:35] Speaker 03:
If he comes up with the same decision, he does.

[00:02:38] Speaker 03:
But it must be done properly.

[00:02:40] Speaker 03:
The underlying facts of this case, if I just make a quick recount.

[00:02:43] Speaker 02:
Was there any testimony by the deciding official during the hearing about what he would have done if one of the charges wasn't sustained?

[00:02:51] Speaker 03:
No.

[00:02:52] Speaker 03:
His view was quite simple.

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Once an inmate, always an inmate.

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The fact that this relationship with this inmate began

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Years later, you know, he was been out for five years.

[00:03:04] Speaker 03:
He was still under supervision.

[00:03:05] Speaker 03:
He was under supervision for two months after it was reported.

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And after that, it was no longer the definition of an inmate.

[00:03:11] Speaker 03:
It appeared completely innocent, the fact that this couple had a relationship and have a child and are married.

[00:03:17] Speaker 02:
The timing here is a little complicated for me, but as far as I can tell is once the petitioner knew about the relationship,

[00:03:27] Speaker 02:
She reported it.

[00:03:28] Speaker 02:
Yes, she did.

[00:03:29] Speaker 02:
But he was already beyond the definition of an inmate at that time, wasn't he?

[00:03:33] Speaker 03:
Two more months later.

[00:03:35] Speaker 02:
Two more months later.

[00:03:35] Speaker 03:
Two more months later.

[00:03:37] Speaker 03:
No.

[00:03:37] Speaker 03:
Okay.

[00:03:38] Speaker 02:
But she reported it promptly.

[00:03:39] Speaker 03:
As soon as she figured it out, yes.

[00:03:42] Speaker 03:
She did.

[00:03:43] Speaker 03:
And during her, when an inmate is under, when an officer is under investigation, you go home, we've nicknamed the penalty box.

[00:03:51] Speaker 03:
You're sitting there listening to inmate calls and doing something where you have no contact for inmate, no chance to earn extra money during the COVID times.

[00:03:59] Speaker 03:
She still received outstanding evaluations and did her job without question, which is really part of the undercurrent here.

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And we're here to seek justice and fairness.

[00:04:12] Speaker 03:
and had this relationship begin sooner, she needs to go because you cannot have a compromise within a federal penal institution.

[00:04:22] Speaker 03:
That didn't occur in this instance.

[00:04:23] Speaker 03:
It really didn't.

[00:04:25] Speaker 00:
OK.

[00:04:26] Speaker 00:
Why don't we go ahead and hear from Ms.

[00:04:27] Speaker 00:
Brandt?

[00:04:28] Speaker 03:
Certainly.

[00:04:29] Speaker 03:
Thank you, Your Honor.

[00:04:29] Speaker 03:
It's a pleasure to be here.

[00:04:31] Speaker 03:
I love going to eat at Moran's Tavern.

[00:04:33] Speaker 01:
Good morning.

[00:04:34] Speaker 01:
May it please the court?

[00:04:35] Speaker 02:
Don't you have a pretty significant problem here with the arbitrator not specifically looking at,

[00:04:43] Speaker 02:
looking at what the penalty should have been absent the non-sustained charge?

[00:04:49] Speaker 01:
Well, Your Honor, in this case, while I appreciate my opposing counsel's recitation of the facts, I do believe that one thing that was omitted from his recitation of the facts is the fact that for both

[00:05:04] Speaker 01:
Failing to report, in addition to maintaining the improper relationship with a former inmate, Ms.

[00:05:09] Speaker 01:
Williams could be removed under either... Oh no, absolutely you're right.

[00:05:13] Speaker 02:
The table of penalties says that.

[00:05:15] Speaker 02:
But the failure to report was not sustained, right?

[00:05:18] Speaker 01:
That's correct, Your Honor.

[00:05:19] Speaker 02:
And our case law says...

[00:05:20] Speaker 02:
if all the charges aren't sustained and there's no indication that the deciding official would have come to the same penalty conclusion, then it is up to the arbitrator or the board to determine whether the penalty was still what the agency would have chosen.

[00:05:37] Speaker 02:
Where in, and I know you're stuck with the record in this case, I feel for you, but where in the deciding official's decision did he do that?

[00:05:48] Speaker 01:
Well, Your Honor, I will.

[00:05:50] Speaker 01:
You are correct.

[00:05:50] Speaker 01:
The record is the record.

[00:05:52] Speaker 01:
So on pouring through the record, I did note some testimony from the warden, from the deciding official, where he essentially indicated, if Your Honor looks at supplemental appendix 137, he stated that given everything that he knew about the case and investigation, which would include Ms.

[00:06:12] Speaker 01:
Williams' contention that she reported her relationship the day after she learned Mr. Hayes was a former inmate

[00:06:18] Speaker 01:
that he would not have changed or amended his decision in any way.

[00:06:21] Speaker 00:
Where is this?

[00:06:21] Speaker 00:
On page 137?

[00:06:22] Speaker 01:
137 of the supplemental appendix, Your Honor.

[00:06:28] Speaker 00:
Is this a question, given what you know about the case sitting here today, would you have changed or amended your decision in any way?

[00:06:34] Speaker 00:
Yes, Your Honor.

[00:06:35] Speaker 00:
But I don't understand.

[00:06:37] Speaker 00:
Was he asked if

[00:06:40] Speaker 00:
She was, in fact, truthful and did report right away.

[00:06:42] Speaker 00:
Would you change your mind?

[00:06:43] Speaker 01:
So it was at the summation of it was basically a redirect.

[00:06:47] Speaker 01:
And agency counsel was essentially trying to elicit from the deciding official essentially what his view of the case was, generally speaking, and whether or not he would have made any alterations or amendments.

[00:07:00] Speaker 00:
But his view of the case was based on what he understood the case to be, which included both charges.

[00:07:05] Speaker 00:
There's nothing in this that suggests

[00:07:07] Speaker 00:
If only one of the charges is sustained, I'd still come out the same way.

[00:07:11] Speaker 01:
Well, Your Honor, I think that, again, I think if you tie it back to the point that I made earlier, which is that Ms.

[00:07:18] Speaker 01:
Williams could have been removed for either.

[00:07:20] Speaker 00:
That's clear.

[00:07:21] Speaker 00:
That's not what he had.

[00:07:22] Speaker 00:
Look at page 62 of the Appendix Council.

[00:07:24] Speaker 00:
Let's look at page 62.

[00:07:25] Speaker 00:
This is the deciding official.

[00:07:27] Speaker 00:
Page 62.

[00:07:29] Speaker 00:
Here on page 62, he is saying that one of the most important Douglas factors for him

[00:07:35] Speaker 00:
He says, so I took into account, you know, factors on that line four, if you're with me.

[00:07:39] Speaker 00:
I want to give you a chance to get with me.

[00:07:41] Speaker 00:
Yes.

[00:07:42] Speaker 00:
Line four.

[00:07:43] Speaker 00:
So I took into account, you know, that factor, many factors, and made my decision to review the Douglas Factors.

[00:07:48] Speaker 00:
And then I determined I didn't.

[00:07:49] Speaker 00:
I'm sorry, Your Honor, to interrupt.

[00:07:50] Speaker 00:
You said page 162?

[00:07:51] Speaker 00:
162.

[00:07:51] Speaker 00:
162.

[00:07:52] Speaker 01:
No, 62.

[00:07:52] Speaker 01:
62.

[00:07:54] Speaker 00:
All right.

[00:07:56] Speaker 00:
Page 62, line four.

[00:07:58] Speaker 00:
Are you there now?

[00:07:59] Speaker 00:
Yes, Your Honor.

[00:08:00] Speaker 00:
This is the deciding official.

[00:08:01] Speaker 00:
So I took into account that factor, many factors, and made my decision and reviewed the Douglas factors, and then determined that I didn't believe there was a chance for rehabilitation based on the fact that it wasn't forthright, the information, and it's a position of public trust.

[00:08:19] Speaker 00:
Withholding the information about her relationship with Mr. Hayes is obviously unacceptable, and I have to take into consideration.

[00:08:27] Speaker 00:
he is saying here was an important factor in his decision, ultimately, was that she withheld the information.

[00:08:35] Speaker 00:
But the arbitrator found the opposite from a fact finding.

[00:08:40] Speaker 00:
The arbitrator found she did not withhold.

[00:08:41] Speaker 00:
She promptly reported.

[00:08:43] Speaker 00:
So how is it that you conclude he would have reached the same penalty even if he understood she did not withhold information?

[00:08:52] Speaker 01:
Well, Your Honor, while I can appreciate that the court did not like my previous response, and I tried to explain that again, in looking at the word as testimony that he gave during the hearing, it based on my understanding- This is testimony too.

[00:09:05] Speaker 02:
I mean, even if we accept that the page you cited to us supports

[00:09:10] Speaker 02:
Your view.

[00:09:11] Speaker 02:
Isn't the real problem here that the arbitrator didn't grapple with any of this?

[00:09:16] Speaker 02:
He didn't look at the page you cited, and he didn't look at the pages we just cited, and he didn't look at the warden's decision and determine whether even if the failure to report chart wasn't sustained, removal was still a problem.

[00:09:32] Speaker 02:
I mean, if we send it back, you still have a chance to argue that this testimony you're talking about supports removal.

[00:09:40] Speaker 02:
Your friend on the other side can argue all this other stuff supports a lesser penalty.

[00:09:45] Speaker 02:
But you're asking us to now step into the place of the arbitrator and do the correct legal job of determining what the agency would have done if only one penalty has been sustained.

[00:09:55] Speaker 01:
Your Honor, I do think that the Douglas analysis that the arbitrator did engage in nonetheless showed that the penalty was reasonable for the act of misconduct that Ms.

[00:10:07] Speaker 02:
Williams was ultimately... I mean, I would be very careful in pushing that point because I have the arbitrator's analysis before me and I don't see anything in it where it suggests that he has carved out the two different

[00:10:24] Speaker 02:
He sustained one, but then when he keeps going back and looking at the warden's testimony, he just talks about misconduct.

[00:10:32] Speaker 02:
But the warden never testified absent that one point that he didn't address that you're citing that he would have done it absent on penalty.

[00:10:41] Speaker 02:
He's just talking about the warden's testimony as removal decision letter as supporting

[00:10:47] Speaker 02:
the removal.

[00:10:48] Speaker 02:
But the removal letter can't be evidence of what the agency would have done absent one of the charges not being sustained, because it didn't say anything about that, right?

[00:10:57] Speaker 02:
Right.

[00:10:58] Speaker 02:
It relies on both of them.

[00:11:00] Speaker 02:
And throughout the arbitrator's decision on Douglas vectors, he's talking about the warden's testimony and removal letter.

[00:11:06] Speaker 02:
How do we know that there's anything in this that suggests the arbitrator understood the correct legal standard here?

[00:11:13] Speaker 01:
That's a fair question, Your Honor.

[00:11:16] Speaker 02:
Did the arbitrator even cite a chance versus Deval?

[00:11:22] Speaker 01:
Let me just look briefly.

[00:11:23] Speaker 02:
I don't really see any.

[00:11:26] Speaker 02:
I mean, you agree there's no discussion in the arbitrator's decision of the law that when one charge is not sustained, the arbitrator has an independent duty to determine what the agency would have selected.

[00:11:39] Speaker 01:
If I recall, Your Honor, I think the arbitrator may have, there may be a line in there about it.

[00:11:43] Speaker 01:
It may not have been a substantial note about it.

[00:11:48] Speaker 01:
But if I may just have one moment.

[00:11:50] Speaker 02:
Well, we don't need to belabor the point.

[00:11:52] Speaker 02:
Let's just assume I'm right, that the arbitrator didn't discuss this legal standard and therefore didn't apply the proper law.

[00:11:59] Speaker 02:
You agree that we'd have to send it back, right?

[00:12:02] Speaker 01:
If the arbitrator failed to apply the proper law, then it would have to go back, Your Honor.

[00:12:06] Speaker 02:
Thank you.

[00:12:07] Speaker 01:
Thank you.

[00:12:11] Speaker 03:
On page 31 of the arbitrator's opinion, he says, on these facts, the just and fair thing that we'd set aside the removal in favor of a long suspension, reinstate her agreement to her position as a federal correctional officer and order back pay.

[00:12:28] Speaker 03:
If this were a private sector case, I would do the just and fair thing.

[00:12:32] Speaker 03:
That's what he was thinking.

[00:12:34] Speaker 03:
He just didn't do the proper analysis.

[00:12:36] Speaker 03:
It's time for this honorable court to take this

[00:12:38] Speaker 02:
Well, I mean, I get your point.

[00:12:40] Speaker 02:
And it sounds like he might do that when it goes back.

[00:12:42] Speaker 02:
But that's not the correct legal standard either.

[00:12:43] Speaker 02:
No, it's not.

[00:12:44] Speaker 02:
But it applies to the private sector.

[00:12:46] Speaker 03:
He has to apply his own Douglas factors.

[00:12:47] Speaker 03:
He has to apply and run through the analysis.

[00:12:49] Speaker 02:
So you agree that we can't just reverse.

[00:12:51] Speaker 02:
We have to send it back.

[00:12:52] Speaker 03:
And I think it's because we have to, yes.

[00:12:56] Speaker 03:
If there's no further questions.