[00:00:00] Speaker 03:
Our final case for argument is 23-1878 Buker v. Treasury.

[00:00:07] Speaker 04:
Campbell, please proceed.

[00:00:10] Speaker 04:
May it please support?

[00:00:14] Speaker 04:
I'm Nakeesha Campbell on behalf of the petitioner, Mario Buford.

[00:00:18] Speaker 04:
The issues before the court are whether the agency proved.

[00:00:21] Speaker 00:
Can you speak up a little bit?

[00:00:22] Speaker 00:
I know the microphone's not good, but if you just speak a little bit louder.

[00:00:26] Speaker 00:
Because we can hear you, but I don't think they can hear you.

[00:00:29] Speaker 00:
Oh, OK.

[00:00:29] Speaker 04:
Sorry about that.

[00:00:31] Speaker 04:
The four issues before the court are whether the agency proved by substantial evidence that Mr. Buford disregarded a lawful order to submit to a psychiatric examination.

[00:00:42] Speaker 04:
Whether Mr. Buford was denied due process when the agency didn't provide him with all the materials their decided official relied upon when it removed him, when it sustained the charge and opposed his removal, actually upheld his removal from federal service.

[00:00:59] Speaker 04:
Whether the administrative judge abused his discretion when he failed to comply with the objective evidence standard that was articulated by the Supreme Court in Bragg v. Abbott, 524 U.S.

[00:01:10] Speaker 04:
624.

[00:01:12] Speaker 04:
and whether the removal exceeds the maximum reasonable penalty in the case.

[00:01:18] Speaker 04:
And I want to start with the due process issue because that's the most significant.

[00:01:22] Speaker 04:
The law is clear that tenured federal employees are entitled to due process.

[00:01:27] Speaker 04:
And that's at Stone versus FDIC 179 F3D 1368 1375.

[00:01:33] Speaker 04:
And due process requires the agency to give the employee notice of the charges and the evidence that was used against them to support the charges and opportunity to respond to each of those.

[00:01:44] Speaker 02:
Are you arguing that there were some reports that are applicable here?

[00:01:49] Speaker 02:
Is that part of your due process agreement?

[00:01:52] Speaker 04:
So there's not just reports, because the law is clear that it doesn't matter what the category of documents are that were withheld.

[00:01:59] Speaker 04:
The employee is just entitled to all of the evidence, whatever it is, that was used against him.

[00:02:03] Speaker 04:
So the deciding of it.

[00:02:05] Speaker 02:
OK, so what I'm asking then is, are you arguing that there was some evidence that was withheld?

[00:02:10] Speaker 02:
And so what is your basis for continuing that there was some evidence that was withheld?

[00:02:15] Speaker 04:
Yes, Your Honor.

[00:02:15] Speaker 04:
The deciding official, Mr. Batdorf, testified that he reviewed a few files that were over a couple of hundred pages.

[00:02:24] Speaker 02:
So how does that testimony seem pretty vague?

[00:02:27] Speaker 02:
Can you maybe explain what you're relying on in particular to indicate that there really were those files in existence in this particular case, as opposed to maybe just something that he generally thought happened in various cases?

[00:02:42] Speaker 04:
Well, he didn't refer to various cases.

[00:02:43] Speaker 04:
He referred to Mr. Buford's case specifically.

[00:02:46] Speaker 02:
Well, then why don't you just look at the testimony?

[00:02:48] Speaker 02:
Maybe that would be the easiest way.

[00:02:51] Speaker 04:
Yes.

[00:02:51] Speaker 04:
So let's look at Appendix 161.

[00:03:06] Speaker 04:
Starting at line five, and I ask him

[00:03:11] Speaker 04:
that he reviewed the materials relied upon.

[00:03:14] Speaker 04:
He said, yes, that's correct.

[00:03:16] Speaker 04:
I asked him what those were.

[00:03:17] Speaker 04:
He said, quote, a couple of reports in there.

[00:03:19] Speaker 04:
The 2015 letter from Mr. Arrow, I'll skip down, the proposal letter was in there.

[00:03:24] Speaker 04:
I asked him about the couple of reports.

[00:03:26] Speaker 04:
He said he's trying to remember the particular report.

[00:03:28] Speaker 04:
And at the bottom, I asked him how many pages were in the files that he received.

[00:03:32] Speaker 04:
Well, before we get there, Your Honor, he said he can't remember if it was a ticket or not.

[00:03:37] Speaker 04:
But I asked him how many pages were in the materials that he relied upon, and he said, quote, most of those files were over a couple of hundred pages, end quote.

[00:03:45] Speaker 02:
So you skipped over where he says, I don't recall.

[00:03:47] Speaker 02:
I have to go back and look, right?

[00:03:50] Speaker 04:
Yeah, but he didn't say he didn't recall if he reviewed a couple of hundred pages.

[00:03:53] Speaker 04:
He said, I asked him, what kind of reports did he review?

[00:03:56] Speaker 04:
And he said, at line 17, quote, I'm trying to remember if there was a tick to report in there or not.

[00:04:01] Speaker 04:
I can't remember, end quote.

[00:04:03] Speaker 04:
And that's when I asked him, well, how large were the pages that you reviewed in the materials relied upon?

[00:04:08] Speaker 04:
And he said, most of the files were over a couple of hundred pages.

[00:04:12] Speaker 04:
So when you look at the agency's table of contents for their

[00:04:18] Speaker 04:
agency files, they identified the materials relied upon as consisting of four pages, pages 10 to 13 of their agency, or part 15 of their agency file.

[00:04:29] Speaker 04:
So regardless of what the documents were that they reviewed, a couple of hundred pages is significantly more than the four that the agency indicated that they provided to Mr. Seifert.

[00:04:39] Speaker 00:
How do we know?

[00:04:40] Speaker 00:
I mean, my recollection was that the employees sent hundreds of pages

[00:04:47] Speaker 00:
to the residing image.

[00:04:49] Speaker 00:
That is correct.

[00:04:50] Speaker 00:
How do we know that isn't the hundreds of pages he's talking about?

[00:04:53] Speaker 00:
And if it's coming from the employee, then they don't have to send him right back to them, do they?

[00:04:58] Speaker 04:
That's correct.

[00:04:58] Speaker 04:
But if you look at page 162 of the appendix, which continues Mr. Batdorff's testimony, at the top, my question is, quote, and who provided those files to you?

[00:05:06] Speaker 04:
End quote.

[00:05:07] Speaker 04:
And Mr. Batdorff said, quote, it probably would have been our LR specialist.

[00:05:11] Speaker 04:
End quote.

[00:05:11] Speaker 04:
And I asked him, does he recall if it was the LR specialist?

[00:05:14] Speaker 04:
And he says, I do not recall.

[00:05:15] Speaker 00:
What's an LR specialist?

[00:05:17] Speaker 00:
Well, isn't that the person that the employee might have sent a bunch of documents to?

[00:05:24] Speaker 00:
In the testimony, Mr. Batdorf didn't- Usually when we have these ex-party cases, there's a specific piece of information that the deciding official has called out as affecting his testimony that the employee was never given a chance to respond to.

[00:05:41] Speaker 00:
In some cases, they've talked to another employee at the office that worked with his employee, and they never told the

[00:05:50] Speaker 00:
removed employee about that, or there was something specific that was in a file that they called out in their deciding official as important to their decision on removal or penalty.

[00:06:05] Speaker 00:
Is there anything in the deciding official's determination that suggests he relied on a specific piece of information that your client didn't have?

[00:06:14] Speaker 01:
Yes, that's testimony that he reviewed a couple of times.

[00:06:17] Speaker 00:
No, no, his decision.

[00:06:19] Speaker 00:
Because that's what's on the review.

[00:06:20] Speaker 00:
He said he got the charges, he reviewed stuff, and then he gave the reasons for why he was sustaining them, right?

[00:06:28] Speaker 00:
Did he add anything in to that decision that specifically identified something that the employee already had gotten?

[00:06:39] Speaker 04:
Well, he didn't specifically identify it because he said he couldn't remember.

[00:06:42] Speaker 04:
But the case law doesn't say that the manager has to say exactly what it was.

[00:06:47] Speaker 04:
The case law is clear then.

[00:06:48] Speaker 00:
It has to be material, though.

[00:06:49] Speaker 00:
And the board made a fact finding here that there was nothing specific enough to be material that would rise to a due process violation.

[00:07:00] Speaker 00:
And you can't identify anything.

[00:07:01] Speaker 00:
It's not that it's a due process violation

[00:07:04] Speaker 00:
If there were things that weren't turned over, it's if they weren't turned over and they were material and they were relied upon to make the penalty or the removal decision.

[00:07:14] Speaker 04:
Well, I think there's no question that they were relied upon because the deciding official asked him whether he reviewed and the materials relied upon.

[00:07:20] Speaker 04:
He said a couple of hundred pages.

[00:07:22] Speaker 00:
Is there a difference between reviewing and relying on?

[00:07:26] Speaker 03:
well you will certainly rely on things that you review well but there's no question that it wasn't on council page 164 and 165 continuing the same testimony you asked him you asked him

[00:07:42] Speaker 03:
whether or not it was Mr. Jones, it was a specialist.

[00:07:46] Speaker 03:
Is that what you're saying?

[00:07:47] Speaker 03:
Is that right?

[00:07:47] Speaker 03:
Correct?

[00:07:48] Speaker 03:
Are they related to specialists?

[00:07:49] Speaker 03:
Got it?

[00:07:49] Speaker 03:
Anyone else?

[00:07:50] Speaker 03:
No?

[00:07:50] Speaker 03:
Not that I know of.

[00:07:51] Speaker 03:
And then you say, you testified earlier that when you reviewed the documentation that Mr. Bucke provided to you, that was somewhere between 150 to 170 exhibits.

[00:08:01] Speaker 03:
Yes, I do.

[00:08:02] Speaker 03:
Can you tell me about that?

[00:08:04] Speaker 03:
So then it seems possible that the

[00:08:10] Speaker 03:
or below could have understood his statement about several hundred pages as being the several hundred pages provided by Mr. Puebert through his labor relations specialist.

[00:08:21] Speaker 03:
That's the problem.

[00:08:22] Speaker 03:
I don't see any evidence that there exists some, I don't know what it is, but TIGTA report anywhere.

[00:08:28] Speaker 03:
There doesn't seem to be any evidence that there is one or that it was relied on by him.

[00:08:33] Speaker 04:
Right, but the agency didn't turn that over, and that's specifically the problem.

[00:08:36] Speaker 03:
They didn't turn it over just because there's a proof there is one.

[00:08:40] Speaker 04:
There's no dispute that Mr. Batchelor said that he reviewed a couple of hundred pages, and there's also no dispute that it wasn't provided to Mr. Buford.

[00:08:47] Speaker 04:
And there's also no dispute that when I asked him who provided him with those couple hundred pages, he did not identify Mr. Buford.

[00:08:52] Speaker 04:
And when I asked him about 164 and 165, it says that he reviewed, well, wait, but who provided them the labor relations specialist?

[00:09:01] Speaker 03:
And then when you go two pages further in the same testimony, he refers to what the labor relations specialist

[00:09:07] Speaker 03:
having given him was over 150 to 100, 107 exhibits.

[00:09:11] Speaker 03:
Why doesn't that tie it all up in at least the purposes, our purposes, which are reviewing and review substration when the American Civil Protection Board did?

[00:09:20] Speaker 03:
I mean, why isn't that sufficient?

[00:09:22] Speaker 03:
I understand your argument about how a fact better could have interpreted those things differently.

[00:09:28] Speaker 04:
I think Your Honor's reading of that testimony is inaccurate, especially on page 165 with line 6.

[00:09:35] Speaker 04:
It doesn't say anywhere that the labor and employee relations specialist provided Mr. Buford's written reply to the labor and employee relations specialist or Mr. Batdorf.

[00:09:47] Speaker 04:
In fact, Mr. Batdorf testified that Mr.

[00:09:52] Speaker 04:
Buford provided his written reply.

[00:09:56] Speaker 04:
Mr. Buford testified that he provided his written reply directly to Mr. Dorsey, and then he received it from Mr. Backdoor.

[00:10:04] Speaker 04:
Let me see where that is on the record.

[00:10:14] Speaker 04:
But I think if Mr.

[00:10:18] Speaker 04:
If Mr. Batdorf believed the documents were from Mr. Buford, he would have said that, but he didn't say that.

[00:10:23] Speaker 04:
He said he thought it was community labor and employee relations specialist.

[00:10:29] Speaker 02:
And then- I think fundamentally, though, I don't think the admissions that you think you got are quite as clean as you're describing them.

[00:10:36] Speaker 02:
I feel like Chief Judge Gore explained one medium.

[00:10:40] Speaker 02:
I understand that you have a different viewpoint, but maybe you should move on to your next argument.

[00:10:46] Speaker 04:
OK.

[00:10:47] Speaker 04:
And can I say one thing before I do more?

[00:10:50] Speaker 04:
I think we should read the deciding official's testimony from what he actually said, because he testified to his experience rather than some other unexpressed meaning in the record.

[00:11:03] Speaker 04:
So my next point I want to move on to, and they kind of go together, is whether the agency proved by substantial evidence that Mr. Buford disregarded a lawful order to submit to a psychiatric examination.

[00:11:15] Speaker 04:
And to prove the charge of whether or not one violated a lawful order is that first the instruction given had to have been proper.

[00:11:24] Speaker 04:
And then the person had to have not failed.

[00:11:27] Speaker 04:
And our argument here is that the instruction for him to submit to a psychiatric examination was not proper.

[00:11:33] Speaker 00:
You agree he refused to submit.

[00:11:35] Speaker 00:
I'm sorry?

[00:11:36] Speaker 00:
You agree he refused to submit.

[00:11:38] Speaker 00:
Yes, that's right.

[00:11:38] Speaker 00:
Your only argument is that it shouldn't have been given because it was a lawful.

[00:11:43] Speaker 04:
Right.

[00:11:43] Speaker 04:
And so the agency issued that order under 5 CFR section 339.301, which allows them to require a medical examination for somebody in this instance, but it has to be based on objective evidence.

[00:11:56] Speaker 04:
And they essentially wanted Mr. Buford to submit to the psychiatric examination because he kept complaining to them about suspicious activity on his computer.

[00:12:04] Speaker 04:
But it wasn't just the figment of his imagination.

[00:12:06] Speaker 04:
He showed them screenshots of the different suspicious activity that was on his computer.

[00:12:12] Speaker 04:
And that is, in the appendix, there's a lot of those pages.

[00:12:22] Speaker 04:
Let's see.

[00:12:24] Speaker 04:
Appendix 15.

[00:12:28] Speaker 04:
starting at 1547 through 1628.

[00:12:34] Speaker 04:
So I get that.

[00:12:35] Speaker 00:
I mean, even if there might have been suspicious activity, there's a lot more here, isn't there?

[00:12:40] Speaker 00:
I mean, he accused or he told people that he believed the government is listening in on everyone, including himself, via government-issued cell phones.

[00:12:55] Speaker 04:
That's inaccurate.

[00:12:56] Speaker 04:
Mr. Rupert testified that he said the government had the capability of doing that, not that they actually did it.

[00:13:04] Speaker 00:
I mean, we're not here to reassess the truth of one witness versus the other.

[00:13:12] Speaker 00:
And so if that's what the government official testified, why wouldn't that be objective evidence?

[00:13:19] Speaker 04:
Because they didn't just order him to take a direct examination based on that one comment.

[00:13:25] Speaker 04:
It was mostly based on the fact that he kept reporting suspicious activity.

[00:13:29] Speaker 04:
But they didn't consider the fact that he was a criminal investigator for the IRS.

[00:13:32] Speaker 00:
And he had said that he accused another agency employee of hacking into his computer.

[00:13:39] Speaker 00:
It's not just isolated things.

[00:13:44] Speaker 00:
It's a problem here that it's not just, oh, he reported that there were problems with his computer.

[00:13:50] Speaker 00:
He thought it was the way he reported all of these that suggested that he was paranoid and that he required a medical evaluation.

[00:13:58] Speaker 00:
Don't you think somebody that thinks the government is listening in on their cell phones and is hacking into their computers at least objective evidence sufficient for us to affirm?

[00:14:11] Speaker 04:
No, because the agency's own emails between their IT office indicated that there was, in fact, actually malicious content on his computer, but they never shared that with information with him until later.

[00:14:22] Speaker 04:
It's in a series of emails between them, and that is at appendix 1631 to 1635.

[00:14:31] Speaker 04:
And I'll draw your attention to what's on 1634, where the IT people said, you know,

[00:14:41] Speaker 04:
any chance we're going to be able to determine where and when the malicious content originated from.

[00:14:46] Speaker 04:
Was the content purged or was the system fully re-imaged?

[00:14:50] Speaker 04:
And then they subsequently issued him a new laptop.

[00:14:52] Speaker 04:
So to call somebody crazy and say, oh yeah, there really is malicious content on his computer.

[00:14:58] Speaker 04:
Let's take it off and give him another one and act like that didn't happen.

[00:15:01] Speaker 04:
That's disingenuous on the agency's part.

[00:15:03] Speaker 04:
So that there is indication that they didn't have a reasonable belief based on objective evidence that he was somehow paranoid because there was this malicious content that actually was, in fact, on his computer that the agency was aware of.

[00:15:16] Speaker 04:
And as I was saying before, he was a criminal investigator for the IRS who also worked undercover.

[00:15:22] Speaker 04:
And so he had sensitive taxpayer identification information on his computer as well as who is Larry.

[00:15:29] Speaker 03:
Mr. Buford wrote an email to Larry, which is one of the things the MSPB cited on 1824.

[00:15:34] Speaker 04:
The very era was his first fine supervisor.

[00:15:37] Speaker 04:
Mr. Buford's first fine supervisor.

[00:15:39] Speaker 03:
So Mr. Buford is accusing his supervisor.

[00:15:42] Speaker 03:
He says, I want to present you with the opportunity to liberate yourself from the fraudulent statements you've made.

[00:15:48] Speaker 03:
I know you have the ability to remotely access my computer despite your denials.

[00:15:52] Speaker 03:
You stood by SAC Pullman and constantly denied remotely access to my computer.

[00:15:57] Speaker 03:
And by the way, there's evidence in this record that nobody had access to this computer except for the IT people as well because the MSP resided in it.

[00:16:04] Speaker 03:
Tom has stated November 21, 2019 meeting at

[00:16:08] Speaker 03:
no love that he did not authorize anyone below him to remote access the computers.

[00:16:14] Speaker 03:
You can't phone Andrew or Thomas.

[00:16:16] Speaker 03:
They're not with the agency.

[00:16:17] Speaker 03:
This past Friday, he was the only person with the ability and motive to remove my old emails because you know the emails support my story.

[00:16:25] Speaker 03:
Why jump through all the hoops to cover up your lies?

[00:16:28] Speaker 03:
Question mark.

[00:16:30] Speaker 03:
Judge.

[00:16:31] Speaker 03:
Who asked if it was impossible that emails like this, accusing another employee who has no access to your computer, of having not only access to your computer, but trying to delete emails which they think would support his story, might be indicative of some sort of paranoia.

[00:16:55] Speaker 03:
I just agree.

[00:16:59] Speaker 04:
So if the EEO complaint is not before this court, I'm not going to really go into any detail.

[00:17:04] Speaker 03:
But that's one of the pieces of evidence rolled out by the board, or his own emails.

[00:17:07] Speaker 03:
That's what the board said was many of Mr. Buford's own emails are the emails that evidence

[00:17:15] Speaker 03:
the troubling behavior.

[00:17:18] Speaker 04:
Well, what I'm saying is that the behavior wasn't troubling because there was, in fact, malicious content on his computer.

[00:17:24] Speaker 04:
So to continue to complain about something that is, in fact, happening when the agency's telling you, oh, no, no, no, it's not.

[00:17:29] Speaker 04:
I can find these emails.

[00:17:30] Speaker 04:
Oh, yeah, it is.

[00:17:31] Speaker 00:
Jumping from possible malicious conduct to accusing your supervisor of hacking your computer and deleting emails is a pretty big leap.

[00:17:41] Speaker 04:
I would disrespectfully disagree.

[00:17:45] Speaker 00:
But again, we are not app finders.

[00:17:47] Speaker 00:
You've got to make all these arguments to the board.

[00:17:50] Speaker 00:
They found against you.

[00:17:51] Speaker 00:
And what we're looking for is substantial evidence to determine whether there was good faith.

[00:17:56] Speaker 00:
And this email seems to be a piece of evidence.

[00:18:00] Speaker 04:
It seems to be one piece of evidence, but when taken in conjunction with everything else, I don't think it's enough to tip the scales.

[00:18:05] Speaker 02:
You agree that we need an appellate court?

[00:18:12] Speaker 02:
I'm just adding on what Judge Hughes says.

[00:18:15] Speaker 02:
We're not going to do that by you, reweigh that, right?

[00:18:18] Speaker 04:
Right, right.

[00:18:19] Speaker 04:
But you are going to look to see if there's substantial evidence to support the judge's ruling in the case.

[00:18:25] Speaker 04:
And that's what we're looking at here.

[00:18:27] Speaker 03:
And I just want to go back to you, you said there was possible...

[00:18:45] Speaker 01:
Good afternoon, and may it please the court.

[00:18:47] Speaker 01:
So also, just to dive right into due process, I think that is the main issue here.

[00:18:52] Speaker 01:
I would encourage the court to look before that testimony on pages 160 and 161 of the appendix, where earlier in it, Director Batdorf testified on page 141 that he had reviewed Mr. Buford's written reply.

[00:19:08] Speaker 01:
It had about 170 exhibits.

[00:19:10] Speaker 01:
And then when it gets to the testimony about hundreds of pages, that actually is supported by the fact that on Appendix 1314, Director Batdorff received the reply, so basically the written reply from Mr. Buford, from that labor relations specialist.

[00:19:28] Speaker 01:
And so as the board correctly determined, this speculation of some TIGTA report, and TIGTA is the Treasury Inspector General Tax Authority, that if they had done any kind of investigation on the computer, that gets to whether there was any malicious content for that.

[00:19:46] Speaker 01:
But that also goes to decisions that happened well before Director Baddorf was considering whether to sustain the charge of failure to follow a directive.

[00:19:55] Speaker 01:
And with the due process argument, again, the Norris case would control here.

[00:20:02] Speaker 01:
And that's 675 F.

[00:20:03] Speaker 01:
1349 of this court where information known by a deciding official but not relied on does not create a due process violation.

[00:20:13] Speaker 01:
And also that a due process violation only raises concerns when the knowledge is, quote, the basis for the deciding official's determination on either the merits of the underlying charge or the penalty taken.

[00:20:25] Speaker 01:
And here, with the allegation of the hundreds of pages and the possible take to report, that isn't any material information that the deciding official testified that he relied upon.

[00:20:37] Speaker 03:
What about the second issue?

[00:20:38] Speaker 03:
Is there substantial evidence for having ordered a report?

[00:20:42] Speaker 03:
I pointed to one email that I saw on the appendix.

[00:20:45] Speaker 03:
Is there more?

[00:20:47] Speaker 01:
Yes, there is, Your Honor.

[00:20:48] Speaker 01:
And so that email of course was of concern to both the agency and the board.

[00:20:54] Speaker 01:
And that was the, so then that's page 1824 of the appendix.

[00:21:00] Speaker 01:
where, that even occurred on February 2021, where despite IRS, so the, I think it was the Special Agent in charge of the Georgia Atlanta office, stating Mr. Buford down, explaining no IT can access your computer, your direct supervisor, Special Agent Arrow, Larry Arrow, is not accessing your computer, that Mr. Buford continued to sincerely believe that somebody was, but other information,

[00:21:25] Speaker 01:
for example, as well as the testimony.

[00:21:27] Speaker 01:
So the board heard the testimony of not only Mr. Buford, and the board believed, and this is at page 18 of the appendix note seven, the board believed that Mr. Buford, even as he testified, still sincerely believed that there had been surveillance and monitoring.

[00:21:44] Speaker 01:
except the board also heard the testimony of SA Arrow and also Dorsey, who was the recommending official for removal, as well as Director Batdorf, where they all said, there is only IT people can go in and monitor your computer.

[00:22:00] Speaker 01:
But to directly address your Honor's question,

[00:22:02] Speaker 01:
Other evidence, again, included the agency, and this is the pages 14 through 18 of the appendix, where the agency, again, had multiple discussions with Mr. Buford and explained that there was no surveillance going on.

[00:22:15] Speaker 01:
I think another key document is the management inquiry report.

[00:22:21] Speaker 01:
at pages 11, 43 through 47 of the appendix.

[00:22:25] Speaker 01:
And this was done on February 13, 2021.

[00:22:30] Speaker 01:
So even after that email, where Mr. Buford was still really concerned about things, where this was an investigation done by the Atlanta field office, where they actually went in and interviewed

[00:22:42] Speaker 01:
essay arrow and Dorsey and a couple others and also looked at Mr. Buford's computer and confirmed that there was no surveillance.

[00:22:51] Speaker 01:
And it's the basis of that report which led to the recommendation to do a to recommend a medical evaluation of Mr. Buford which then following 5 CFR

[00:23:05] Speaker 01:
three three nine point three oh one it was only after a physical exam of Mr. Buford basically it was clear that the um agency then recommended Dr. Nguyen and this is the page 1118 then recommended a psych evaluation and so the agency properly followed regulations and there was um you know an objective belief or objective evidence before the agency that there was a real concern about Mr. Buford's

[00:23:32] Speaker 01:
possible paranoia, as Dr. Nguyen identified.

[00:23:36] Speaker 01:
And again, let's keep in mind that the agency had put him on temporary restrictive duty as early as October of 2020, and he'd been making these allegations for almost a whole year prior.

[00:23:47] Speaker 01:
And Mr. Hubert carried a weapon, and he had a government vehicle, and so there's objective evidence supporting the agency's concern over a nearly two-year-long period before he was ultimately removed.

[00:24:00] Speaker 01:
No, Your Honor, we respectfully request that the court affirm divorce decision.

[00:24:07] Speaker 03:
Thank you.

[00:24:15] Speaker 04:
Well, the agency stated that they had a reasonable belief based on objective evidence that Mr. Buford wouldn't be able to perform the duties of his job.

[00:24:24] Speaker 04:
During that same year, they issued him a performance rating of exceeds fully successful, basically saying that he really did do his job even better than they expected.

[00:24:33] Speaker 04:
And so that also cuts against their argument that they had this reasonable belief that they needed to have him submit to a psychiatric examination.

[00:24:42] Speaker 04:
And Mr. Arrow, his former first-line supervisor, testified that Mr. Buford's allegations did not impact his ability to perform his job at all.

[00:24:53] Speaker 04:
And in the elements of a workplace interaction and workplace environment that gave him exceeds fully successful in both of those elements.

[00:25:03] Speaker 04:
So that also cuts against their argument about what they thought about his condition and his ability to perform his job.

[00:25:11] Speaker 04:
The deciding official, Mr. Batdorff, also testified that he was surprised at the charges against Mr. Buford because Mr. Buford didn't have a history of failing to follow directions at all in his 18 years of working for the IRS.

[00:25:26] Speaker 04:
He only did so when he believed that the instruction was improper.

[00:25:30] Speaker 04:
The other thing I wanted to hit on before my time runs out is that removal, we believe, is beyond the maximum reasonable penalty in this case, because it's outside of the agency's table of penalties.

[00:25:41] Speaker 03:
Counsel, you didn't address that at all in your initial argument?

[00:25:47] Speaker 03:
I did.

[00:25:47] Speaker 03:
I remember in your brief, I remember in your initial oral argument.

[00:25:50] Speaker 03:
Did you raise that issue here in your oral argument?

[00:25:53] Speaker 03:
Did you raise the issue of removal fee?

[00:25:56] Speaker 03:
In my brief to the court?

[00:25:57] Speaker 00:
No, you raised it in the brief.

[00:25:59] Speaker 00:
But you can't raise in the public an argument that you didn't raise in your first time here, because she doesn't get a chance to respond.

[00:26:07] Speaker 00:
That's fine.

[00:26:08] Speaker 00:
My apologies, Your Honor.

[00:26:09] Speaker 00:
That's OK.

[00:26:09] Speaker 00:
We have the argument in the brief.

[00:26:11] Speaker 03:
Thank you.

[00:26:12] Speaker 03:
Thank you.