[00:00:00] Speaker 02:
The next case for argument is 22-2024, Gomez versus Interior.

[00:01:24] Speaker 02:
Please proceed.

[00:01:25] Speaker 02:
Good morning.

[00:01:26] Speaker 03:
May it please the court?

[00:01:27] Speaker 03:
My name is Christopher Zamponia, and I represent Officer Gomez in this matter before your honors.

[00:01:34] Speaker 03:
Thank you.

[00:01:36] Speaker 03:
Convicted.

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Convicted is defined by the issue of being sentenced, which 5 USC 7371 and Appendix 117 of the brief indicates removal of a law enforcement

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officer who has been convicted of a felony that is entered by a federal or state court.

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Here, this language has been replete throughout the proceedings, and it is the gravamen of our argument that even under the federal rules under 32K1, there must be a sentencing

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for there to be a conviction.

[00:02:18] Speaker 02:
Yeah, but the government comes back with the position, and I don't see you're really objecting to it or persuading us in gray that it's not correct, that this removal wasn't taken under 73-71.

[00:02:30] Speaker 02:
It was taken under 75-13A.

[00:02:35] Speaker 03:
Well, I would argue, Your Honor, that in the Douglas Factors, which were critical to both the initial removal decision in February of 2019, I believe it was, or 2021, I think, sorry, I may have the year wrong, and then in the Judge's order or the Administrative Law Judge's order referring to how important the Douglas Factors are,

[00:02:57] Speaker 03:
The final factor indicates that that is the key legal determination as to not allowing Mr. Gomez to continue in his employment, the 12th factor.

[00:03:09] Speaker 01:
I guess I have read that as simply saying we've decided on 7513 grounds that there is a misconduct.

[00:03:23] Speaker 01:
Now I'm trying to figure out what the appropriate sanction for that is.

[00:03:28] Speaker 01:
There's another statutory provision that confirms me in my view that this kind of misconduct warrants removal as a sanction.

[00:03:39] Speaker 01:
That doesn't mean that the 73-71 provision was the basis for the misconduct

[00:03:49] Speaker 03:
Well, as our reply brief also indicated, that if you're taking their argument as the argument, that under, I believe it's the Supreme Court case, Montana, by Supreme Court Justice Whitaker had indicated that there was a need to have specific language used.

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And I think his quote was,

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term, Your Honors, actually and necessary to determine by the court of competent jurisdiction that facts had to be actually and necessarily determined by the court of competent jurisdiction.

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So that in a sentencing, like in this case, he changed his lawyers.

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He tried to undo a sentencing.

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And the facts could have changed up till sentencing.

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if you're taking their argument that it doesn't matter, that just the plea matters, then you're disregarding whether the facts were agreed to in that plea.

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So I would argue that they weren't, because he had first a lawyer named, his name was, sorry to hear, we had two different attorneys.

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Susan Marcus was his final lawyer.

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His first lawyer was Adam Silverstein,

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This is an appendix three for her name, page three, and appendix 173 is his name, if you wish to find those names, which is the plea agreement.

[00:05:27] Speaker 03:
So he was trying to undo what was happening, which falls into another Supreme Court case as an exception.

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So I would argue that his attempts to change the facts or to change the plea would be something that could be considered by Your Honors in deciding this.

[00:05:47] Speaker 02:
Well, sure.

[00:05:48] Speaker 02:
We could have maybe an intellectual debate about whether a guilty plea standing alone would always be sufficient.

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For example, what if it were later withdrawn and the charges dropped?

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But here, that guilty plea ultimately carried the day, right?

[00:06:04] Speaker 03:
Well, there never was an appeal.

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So there's no reasonable dispute that he committed the acts underlying the felony offense.

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And under those circumstances, isn't it quite difficult to say that the defendant was wrong to use the guilty plea as evidence that he did the thing?

[00:06:28] Speaker 03:
Yeah, as I'm attempting to argue, Your Honor, it is a difficult case.

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I'm not disputing the fact that it's difficult, but I believe in this case, it's still not over until it's over, as Yogi Berra said.

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So I think that this case, you still can find that there was some discrepancy in the facts in the court's decision in addition to their arguing or failing to look at

[00:06:58] Speaker 03:
factors defined in Heller or Hiller I'm sorry which talk about whether there are certain indicia of his demeanor which would indicate whether he was telling the truth that's a second stage of my argument besides the first factor which is I believe still the most important factor but so the the judge below didn't we were arguing this via phone

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which was during the pandemic, which I understand was the reason why we had to do things differently.

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But there are cases that have found that that isn't sufficient in my understanding or even seeing the argument or being there for the argument.

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There was a wholesale acceptance of Mr. Monahan's, his decision in February, which

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against on the site of the douglas factors which had the twelfth factor which was uh... as i said earlier uh... the five u s he said i don't like that they didn't make it credibility termination of that they need the wrong credibility termination because it was done telephonically or what's your argument is it was wrong because it was telephonically this case law that says that uh... you to get demeanor you need to be

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telephonic communication is not sufficient.

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So that it needs to be more in person to figure out whether the person... And what was the credibility determination that needed to be resolved?

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Well his intent as to whether he intentionally... I'm not going to get as much into the facts as I'm sure the others as far as the government will get into because I do believe the law is supporting me but in the underlying case he had

[00:08:44] Speaker 03:
Uh, he had his license expire and then he was flying a plane.

[00:08:50] Speaker 03:
Uh, he didn't intend for it to expire.

[00:08:52] Speaker 01:
Flying a plane as an instructor.

[00:08:54] Speaker 01:
And I thought he acknowledged that he knew he was, um, um, no longer had a flight instructor certificate from the FAA when he was doing that, you know, on the order of a dozen or more times for a year.

[00:09:09] Speaker 03:
Well, my, your honor, I'm sorry.

[00:09:11] Speaker 01:
Is that right, that he did acknowledge that he knew that he lacked that certificate?

[00:09:15] Speaker 03:
Later, he had the time.

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At the time of flying, he didn't know.

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I think later when questioned, he said, yes, I did have or I did not have the license at that time.

[00:09:25] Speaker 02:
But whether he intended to fly... Wait, did he just say that he didn't know at the time he was giving the instruction that he needed?

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Right.

[00:09:32] Speaker 03:
I believe there was a... Yeah, I'm sorry.

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You're going to be interrupting me.

[00:09:36] Speaker 03:
There was an incident that occurred.

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A plane crashed.

[00:09:39] Speaker 01:
uh... that was that was before that's right lead trigger that's what led to the suspension and the suspension occurred and then what six weeks later the certificate expired anyway surely knew about suspension and it was in the year to year and a half after that that he what uh... instructed two different students twelve or eighteen times or something

[00:10:04] Speaker 03:
I'm sure, Your Honor, in this case, or in other cases, there's been instructors that have flown with something that has expired.

[00:10:12] Speaker 03:
So I think there's a... Are they working for the park police?

[00:10:17] Speaker 03:
I don't know how many are working for the park police, Your Honor.

[00:10:21] Speaker 03:
I do not know the answer.

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So I think it's his credibility would be important because he did explain that he didn't

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He didn't have direct knowledge at the time when he was flying.

[00:10:34] Speaker 03:
That's what he said.

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He was confused about whether there was a license that he was applying for his license.

[00:10:41] Speaker 03:
So he was under the belief that as he was applying for his license, he was still able to... This is the issue on which you think credibility is... Would be a factor because I think they said that he wasn't credible, in my understanding.

[00:10:55] Speaker 03:
The judge had ruled that.

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I think that would then kick in that other argument that I had.

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As I said, even the Supreme Court, well, their arguments are going to be, as you pointed out, some of them.

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But some of their arguments are going to be more factual, I believe.

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They're going to get into the facts of the case.

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And I don't believe that

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As I said, I think that the fact that there wasn't an agreement upon the facts until a sentencing would mean that until that point in time, he couldn't be fired.

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To Your Honor's point, yes, now there wasn't an appeal.

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So after that point, of course, he couldn't go back after the actual conviction, which would mean the actual sentence.

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So I would agree with your point that that is no longer an issue today.

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But in that period of time, he was terminated before the sentencing.

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So there was at least, I think, the termination.

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It was February.

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The sentencing was September.

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And it was February.

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So there was several months of time when he should have been.

[00:11:59] Speaker 02:
What remedy are you seeking here?

[00:12:01] Speaker 02:
I mean, this all went down a few years ago.

[00:12:04] Speaker 02:
So he'd get back pay for three years since the discharge.

[00:12:08] Speaker 02:
What are you seeking?

[00:12:09] Speaker 03:
Well, if he could get back pay at least from the time of sentencing to when he was, from the time of sentencing back to, well, from the time of sentencing to termination, because he didn't get, that would be months of time.

[00:12:21] Speaker 03:
If Lisa could get that, that was the remedy.

[00:12:22] Speaker 03:
And I had asked for that below and was refused that request.

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So that's the remedy I'm seeking.

[00:12:29] Speaker 03:
A reinstatement would be.

[00:12:31] Speaker 02:
OK.

[00:12:31] Speaker 02:
And you don't think the government's argument that this action wasn't taken under 73-71 doesn't sort of blow that up?

[00:12:39] Speaker 03:
Well, as I said, I believe that under our case law that we've cited that the underlying facts wouldn't have been agreed to until a sentencing.

[00:12:48] Speaker 03:
I know that's a hyper-technical thing, but that's my argument, Your Honor.

[00:12:51] Speaker 03:
Thank you.

[00:12:51] Speaker 02:
Why don't we go to the other side?

[00:13:08] Speaker 00:
Good morning, Your Honors.

[00:13:09] Speaker 00:
May it please the Court.

[00:13:11] Speaker 00:
Mr. Gomez was a police officer with the United States Park Police for more than 16 years when he was arrested for repeatedly giving flying license without a license, a federal felony charge, a charge to which he pled guilty.

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On the same day of his arrest, he called his supervisor and notified him that he had left his agency-issued firearm, which was loaded in an unsecured locker in his locker room in the workplace.

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Based on these events, the agency removed Mr. Gomez, based on pursuant to Chapter 75 of Title 5 of the United States Code.

[00:13:48] Speaker 00:
The fact that the agency terminated him based on Chapter 75 is very clear from the record.

[00:13:55] Speaker 02:
What about his argument?

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It seems like it, if I understand correctly, it boils down to the fact that at the time of the removal decision, he hadn't been sentenced yet and he was attempting to withdraw his plea.

[00:14:09] Speaker 02:
So the question is, does that cast any doubt on using the plea as a basis for showing that the conduct occurred?

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It does not, Your Honor, and my answer is three-part here.

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First, that Mr. Gomez's argument there is premised on the assertion that the agency removed him pursuant to 5 USC 7371B, and that is not the case here.

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As my friend acknowledged a moment ago,

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The deciding official made this statement in the analysis of Douglas Factor 12, which is the adequacy and effectiveness of alternative sanctions to deter future conduct.

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The Douglas analysis

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is part of a Chapter 75 removal.

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The single statement that the deciding official made on Douglas Factor 12 was meant, if read in context, it's mainly to show the reasonableness of the deciding official's decision

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that only removal would be appropriate here.

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In Cleeton, this court explained that the purpose behind 7371B is to maintain the public's confidence and trust in the law enforcement system.

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And here, the deciding officials specifically explained that imposing any lesser penalties would give the public the impermissible conclusion that the United States Park Police condones this criminal activity

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by its law enforcement officers.

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As well, he explained that it would not deter Mr. Gomez for engaging in such criminal conduct in the future.

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Secondly, Your Honor, to the extent that Mr. Gomez made

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In his reply brief, he made an argument that's distinct from what he had raised in his initial brief because his opening brief focused on whether a guilty plea constitutes conviction under 7371B.

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Once we showed that that was not the

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the statute upon which the agency relied, then he changed his argument that regardless, a plea agreement did not establish the underlying facts, even under Chapter 75.

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That's a different argument, and it's our position that he has waived that argument.

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But nevertheless, if the court is inclined to address it substantively, he is wrong.

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It is a fact that as of February 11, 2021,

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the date of his removal, Mr. Gomez, after being sworn in and read his rights, had a guilty plea that was very much on the record and had not been vacated.

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So his attempts to vacate it, as the administrative judge correctly noted, don't change the agency's burden because as of the date of his removal, the plea agreement was very much on the record.

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But moreover,

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In addition to the plea agreement, there was substantial other evidence on the record that showed that he engages in these underlying facts.

[00:17:25] Speaker 00:
Now, Mr. Gomez claims that he didn't know.

[00:17:29] Speaker 00:
However, he admitted to the special agent.

[00:17:32] Speaker 01:
The commission asks you this question.

[00:17:33] Speaker 01:
So I'm looking at the decision to remove page 109 of the appendix, the basis for adverse action, and charge one

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is called engaging in criminal misconduct.

[00:17:49] Speaker 01:
And the specification doesn't say you did these acts and they were criminal.

[00:17:56] Speaker 01:
It says you pled guilty to a charge.

[00:18:01] Speaker 01:
Is there some significance to the difference between the two things I just mentioned, one that's said and one that's not said?

[00:18:11] Speaker 01:
Except for the title, engaging in criminal misconduct,

[00:18:15] Speaker 01:
The basis for removal doesn't seem to be the conduct itself as evidenced by something, but rather the plea.

[00:18:26] Speaker 01:
Is that the incorrect way to read this?

[00:18:28] Speaker 00:
I think, Your Honor, certainly the specification does correctly.

[00:18:34] Speaker 00:
You're correct that it does point to the fact that he had entered a guilty plea.

[00:18:39] Speaker 00:
And as I entered, as of the date of removal, that was very much a fact.

[00:18:46] Speaker 01:
And so one way, I guess, to think about your friend's argument on the other side, putting aside the waiver point, is that a plea is not enough to constitute the misconduct, at least where it is still being contested.

[00:19:14] Speaker 00:
That is what Mr. Gomez is asserting, Your Honor.

[00:19:20] Speaker 00:
However, that's incorrect.

[00:19:23] Speaker 00:
So the court in Cleeton, which we cited in our brief, specifically held that a guilty plea is sufficient.

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Of course, there the court was addressing 73-71B, which is our position that that's not what the agency relied on.

[00:19:40] Speaker 00:
But nevertheless, the court

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held that an individual can be convicted for purposes of 73-71b once guilt has been established, whether by plea or by verdict, and nothing remains to be done except to pass a sentence.

[00:19:56] Speaker 00:
So the authority of this court is that a guilty plea is

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is sufficient and it does amount to a conviction for purposes of that statute.

[00:20:09] Speaker 01:
You don't need it to amount to a conviction.

[00:20:12] Speaker 00:
Correct.

[00:20:13] Speaker 01:
And what you need is that a guilty plea, even if he's still fighting it, or yes, if he's now fighting it, is a sufficient basis for a charge of removable misconduct.

[00:20:27] Speaker 00:
That's correct, Your Honor.

[00:20:29] Speaker 00:
That's correct.

[00:20:30] Speaker 00:
Cleeton was in particular addressing 73-71B, which does require the conviction.

[00:20:37] Speaker 00:
And just a couple more points to address.

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that were mentioned by Mr. Gomez, he claimed that he did not know that his conduct was criminal.

[00:20:53] Speaker 00:
On appendix page 206, he specifically admitted to the Department of Transportation special agent that was investigating his criminal activity that he had falsified his student's log books.

[00:21:08] Speaker 00:
His certification was in any event set to expire in June of 2016, and he changed the date intentionally to June of 2018 to give the impression that his license was still active.

[00:21:22] Speaker 00:
Additionally, he had been flying for over 14 years, and although neither party ordered a hearing transcript, he testified that every seven years he would renew his license.

[00:21:38] Speaker 00:
He was very well aware of the requirements of his recreational activity, I should say.

[00:21:47] Speaker 00:
As to his second point, Your Honor, what Mr. Gomez is proposing is that the court require the board in every decision, whether there are factual disputes or not, to conduct a comprehensive analysis of the Hillen factors.

[00:22:09] Speaker 00:
And there simply exists no authority in this court to do that.

[00:22:17] Speaker 00:
As we've, you know, I believe comprehensively addressed in our opening brief, there were no factual disputes on this record.

[00:22:25] Speaker 00:
Mr. Gomez stipulated to pretty much to all of the underlying charges and there being no factual disputes on the record, there was nothing for the judge to resolve and therefore no credibility determinations needed to be made.

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unless the court has any other questions.

[00:22:45] Speaker 00:
We respectfully request that the court affirm the decision of the court.

[00:22:49] Speaker 02:
Thank you.

[00:22:55] Speaker 03:
I just have maybe 30 seconds of rebuttal here, so I'll be quick.

[00:22:59] Speaker 03:
Just regarding the one case, Cleeton, that was brought up by my esteemed opposing counsel.

[00:23:07] Speaker 03:
In that case, I would note

[00:23:10] Speaker 03:
Two things.

[00:23:11] Speaker 03:
Well, today underlying it was a marijuana case.

[00:23:14] Speaker 03:
So who knows what he's gotten to where it got with our current state of marijuana as a crime.

[00:23:21] Speaker 03:
However, there is a distinguishing factor, which I believe I still point out in the brief, which indicated that while it wasn't in the record, but he attempted to change the plea.

[00:23:34] Speaker 03:
However, since it wasn't in the record, it didn't

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enter into the factor of the decision of the court.

[00:23:41] Speaker 03:
Whereas in my case, that is in the record.

[00:23:44] Speaker 03:
So that's all I have to add, Your Honor.

[00:23:48] Speaker 03:
Thank you.