[00:00:00] Speaker 03:
OK, our next appeal is docket number 23-1071, Charles Hag versus Federal Bureau of Prisons.

[00:01:04] Speaker 03:
Mr. Bishop, whenever you're ready.

[00:01:28] Speaker 02:
Your Honor, may I please support?

[00:01:30] Speaker 02:
My name's John Ed Bishop, here on behalf of the appellate Charles Hagg in this case.

[00:01:34] Speaker 02:
What you're going to find here is that the issues in this case, they stem from failures by the deciding officials, specifically the warden.

[00:01:42] Speaker 02:
Those failures then became adopted, or in actually some cases, completely reworded and changed by the arbitrator when he issued his decision.

[00:01:51] Speaker 02:
As you can see, we've raised five issues before the court.

[00:01:57] Speaker 02:
Lack of reasonable suspicion for the urinalysis performed on Mr. Hagg.

[00:02:02] Speaker 02:
Admission and acceptance of agency exhibit 16, which was the litigation packet, based basically on the failure to produce a doctor.

[00:02:11] Speaker 02:
Outside research by the arbitrator.

[00:02:14] Speaker 02:
A failure to properly analyze the Douglas factors by the warden and then the arbitrator.

[00:02:20] Speaker 02:
And then consideration of factors outside the proposal letter.

[00:02:25] Speaker 02:
The main issue, or the first issue that actually needs to be addressed, is the proposal letter in this case.

[00:02:31] Speaker 02:
contained in appendix 91 through 94.

[00:02:34] Speaker 04:
It has two charges.

[00:02:35] Speaker 04:
Is that the fifth of the issues that you just listed?

[00:02:37] Speaker 02:
Yes, sir.

[00:02:38] Speaker 02:
And actually, because so many of these issues correspond with one another and they interchange, it's the best one to start with.

[00:02:46] Speaker 02:
And the reason is this.

[00:02:46] Speaker 02:
Charge one is off-duty misconduct.

[00:02:49] Speaker 02:
Now, specifically that off-duty misconduct only deals with the June 3rd guilty plea for driving under an influence.

[00:02:58] Speaker 02:
This is only under the influence of alcohol.

[00:03:00] Speaker 02:
If you look and address a record, there is no issue whatsoever to a controlled substance or drug.

[00:03:08] Speaker 02:
Reviewing the record indicates that the testimony states that bargaining unit employees typically would get a one day suspension for a first defense DUI off duty misconduct.

[00:03:19] Speaker 04:
Isn't there sufficient circumstantial evidence here to support a finding that your client did also use marijuana?

[00:03:28] Speaker 04:
There's the apparent police test in February, the reasonable suspicion test in March.

[00:03:35] Speaker 04:
There is your client's statement about smoking up the vape.

[00:03:41] Speaker 04:
There is a statement, I think he gave,

[00:03:44] Speaker 04:
And he has some experience, apparently, that the hangover the next day didn't feel just like an alcohol hangover.

[00:03:51] Speaker 04:
Correct.

[00:03:52] Speaker 04:
And he himself said the tests he took at home were consistently testing positive, I think, for THC.

[00:03:59] Speaker 04:
So wouldn't that all be enough to support a finding that he did use marijuana?

[00:04:05] Speaker 02:
Well, and here's the point, Your Honor.

[00:04:07] Speaker 02:
And this is why I suggested we start with the proposal letter.

[00:04:10] Speaker 02:
This isn't a hearing where anything can come in and anything can be considered.

[00:04:16] Speaker 02:
It's very restricted to what was placed in the proposal letter in front of him.

[00:04:19] Speaker 02:
And in this case, charge one, where we started here now with the question dealt only with the alcohol.

[00:04:25] Speaker 02:
And if you read the guilty plea,

[00:04:27] Speaker 02:
that was entered by my client, you will see that there was not a single controlled substance charge that was contained within that plea.

[00:04:36] Speaker 02:
They were all dropped.

[00:04:37] Speaker 02:
Why were they dropped by the police?

[00:04:39] Speaker 02:
No one knows.

[00:04:40] Speaker 02:
Was it a faulty task?

[00:04:41] Speaker 01:
How about charge two?

[00:04:43] Speaker 02:
So charge two is where I was going to go next to on it.

[00:04:47] Speaker 02:
So under charge two, your issue is of course providing a urine sample that tested positive for marijuana.

[00:04:53] Speaker 02:
Now the agency has no

[00:04:55] Speaker 02:
requirement to place a title on a charge.

[00:04:57] Speaker 02:
But when they do, that's the charge that's in front of you.

[00:05:01] Speaker 02:
And so in this case, he only provided one urine sample.

[00:05:04] Speaker 02:
And that was the urine sample provided under the reasonable suspicion test in March 3rd.

[00:05:09] Speaker 01:
And as we'll address it.

[00:05:11] Speaker 01:
That came back positive.

[00:05:12] Speaker 02:
That did come back positive, allegedly.

[00:05:15] Speaker 02:
I mean, so he was told it came back positive.

[00:05:18] Speaker 02:
We have... Well, not allegedly.

[00:05:19] Speaker 01:
It came back positive.

[00:05:20] Speaker 02:
Well, yes, Your Honor.

[00:05:21] Speaker 02:
I guess it did.

[00:05:22] Speaker 02:
I guess my issue with allegedly is without a doctor's testimony, without any supporting of the litigation packet that showed it, BOP policy requires a doctor certifying a positive urinalysis test.

[00:05:40] Speaker 02:
I have a signature on a piece of paper that was entered into an arbitration, but beyond that, I have nothing else.

[00:05:47] Speaker 03:
I guess in the context of charge two, the proposal letter also recounts the police blood test, which yielded positive for marijuana, and then also your client's affidavit statement that he had been taking multiple home drug test kits all weekend, and they all came back positive.

[00:06:08] Speaker 02:
You're right, Your Honor.

[00:06:09] Speaker 02:
But again, neither of those fall within the charge that was the title of the charge given by the BOP.

[00:06:15] Speaker 02:
Again, there is no requirement for them to put that title, but when they do, that's where at.

[00:06:19] Speaker 02:
They could have said uses of marijuana or illegal use, off-duty use.

[00:06:24] Speaker 02:
They could have actually added a charge three and said providing the police a blood test that tested positive for THC, then they would have had that burden approved.

[00:06:33] Speaker 02:
But nothing was established, especially to prove that blood test beyond

[00:06:38] Speaker 02:
Just a simple statement by an ulcer and an affidavit.

[00:06:41] Speaker 02:
No one can sit here and tell me what was the level of that blood test, what was the cutoff they were testing for, when was that machine calibrated.

[00:06:48] Speaker 02:
Nothing came into evidence to indicate that.

[00:06:51] Speaker 02:
The only thing that should have been at issue at the arbitration was the March 3rd urinalysis.

[00:06:56] Speaker 02:
That was the only thing in the proposal letter, and therefore the only thing that should be a factor in this case.

[00:07:02] Speaker 04:
And you didn't even have the March 3rd documents, correct?

[00:07:06] Speaker 02:
Correct.

[00:07:06] Speaker 02:
And that was one of the other issues.

[00:07:08] Speaker 02:
Despite repeated requests, we never received the March 3rd, what they call a litigation packet.

[00:07:14] Speaker 02:
And I do need to correct one issue, Your Honor.

[00:07:21] Speaker 02:
And so that litigation packet is actually identified on Appendix 23 of the certified list.

[00:07:28] Speaker 02:
The parties put it 16 pages.

[00:07:30] Speaker 02:
You can look at the record.

[00:07:32] Speaker 02:
between appendix 549 and 556, that document is actually 116 pages.

[00:07:40] Speaker 02:
The document isn't in front of you, neither party put the application packet in the appendix, but the certified list indicates that that's the document that we're discussing.

[00:07:50] Speaker 02:
I've never received that 116 page document until the morning of the arbitration.

[00:07:57] Speaker 01:
When the government initially responded to the request for the litigation packet, it basically said, well, we don't know what you're talking about.

[00:08:06] Speaker 01:
Correct.

[00:08:07] Speaker 01:
But you've got to be a little more specific and invited a further inquiry.

[00:08:14] Speaker 01:
Did Mr. Haig subsequently make a more specific inquiry?

[00:08:21] Speaker 02:
So there were multiple inquiries that were made, Your Honor.

[00:08:23] Speaker 02:
If you look at the request itself, and I'll try to give you the right appendix page,

[00:08:27] Speaker 02:
Even the issue within your document indicates that this was a second attempt.

[00:08:37] Speaker 02:
The attorney had already reached out to get the document.

[00:08:39] Speaker 02:
He was denied it as a non-BOP employee.

[00:08:42] Speaker 02:
That's when the union then reached out to get it.

[00:08:44] Speaker 01:
But I'm interested in what action was taken.

[00:08:48] Speaker 01:
After the government's response that basically said, we don't know what you're talking about, be more specific.

[00:08:54] Speaker 02:
Well, after that, and I would point, Your Honor, to the testimony of Kevin Hood.

[00:09:00] Speaker 02:
If you notice a request was made to Kevin Hood, he passed it to the human resource manager.

[00:09:05] Speaker 02:
During the appendix, page 568 through 569.

[00:09:08] Speaker 02:
568?

[00:09:09] Speaker 02:
Yes, sir, in 569.

[00:09:13] Speaker 02:
And again, this was during COVID.

[00:09:15] Speaker 02:
I believe at times they call him Kyle Wood, or even Kevin Wood.

[00:09:19] Speaker 02:
The name is Kevin Hood, was the witness.

[00:09:25] Speaker 01:
It went me to some specific testimony.

[00:09:28] Speaker 01:
Yes, sir.

[00:09:28] Speaker 01:
I give you that.

[00:09:29] Speaker 02:
So if what Kevin Hood testifies there is that he knew exactly, and let me get you the exact line number.

[00:09:35] Speaker 02:
I apologize, Your Honor.

[00:09:36] Speaker 02:
I don't have that.

[00:09:52] Speaker 02:
So first, as to what a litigation packet is, look on page number five, or starting at line five.

[00:10:01] Speaker 02:
A litigation packet, that's not a big term, is it?

[00:10:04] Speaker 02:
No, I know what's in the litigation packet.

[00:10:07] Speaker 02:
It's a term of art, yes.

[00:10:09] Speaker 02:
If I told you litigation package, you would know exactly what that is, correct?

[00:10:13] Speaker 02:
Yes.

[00:10:14] Speaker 02:
And that's a common course in any type of positive year analysis litigation, correct?

[00:10:19] Speaker 02:
Yes.

[00:10:20] Speaker 02:
If there is a litigation, we would request it.

[00:10:22] Speaker 02:
So how did Human Resource say, I don't know what a litigation packet is?

[00:10:26] Speaker 02:
That's an answer that you could have immediately provided.

[00:10:29] Speaker 02:
I could have.

[00:10:30] Speaker 02:
Would you have if she asked without saying yes?

[00:10:34] Speaker 02:
I would have told her what the litigation packet was.

[00:10:36] Speaker 02:
And then he goes on to say that the donor had the right to receive it.

[00:10:41] Speaker 02:
So the request was made to Kevin Hood.

[00:10:44] Speaker 02:
Kevin Hood evidently passed it to the human resource manager, Ms.

[00:10:47] Speaker 02:
McDonald, who then denied it based on grounds which Kevin Hood testified, yes, I knew what it was.

[00:10:54] Speaker 02:
I knew he had a right to it.

[00:10:55] Speaker 01:
I just didn't give it to him.

[00:10:57] Speaker 01:
I understand all of that.

[00:10:58] Speaker 01:
Then I apologize.

[00:10:59] Speaker 01:
My question is, well, what happened next?

[00:11:02] Speaker 01:
I mean, nothing.

[00:11:04] Speaker 01:
Well, here's specifically what I'm looking for.

[00:11:07] Speaker 02:
No, Your Honor, because it was specified.

[00:11:11] Speaker 02:
Once the litigation was packet, I'm not aware of anything in the record where a subsequent email or any written documentation could show that.

[00:11:21] Speaker 02:
Whether or not there was additional verbal communication between the union president and the HRM,

[00:11:25] Speaker 02:
I couldn't answer that.

[00:11:27] Speaker 02:
I'm not going to testify about it.

[00:11:28] Speaker 01:
Did you ever make a specific request?

[00:11:31] Speaker 01:
I need to see the doctor's statement.

[00:11:34] Speaker 01:
I need to see the technical details.

[00:11:36] Speaker 01:
I need to know everything you've got that relates to your analysis.

[00:11:43] Speaker 02:
I don't think you're going to find any more specific examples than the litigation packet.

[00:11:48] Speaker 02:
As testified, it's a term of art.

[00:11:50] Speaker 02:
When you say litigation packet and you do your analysis cases,

[00:11:54] Speaker 02:
The title of it is Litigation Pack.

[00:11:56] Speaker 02:
It's the term, what's included in there includes all those things, the complete chain of custody, the doctor's report.

[00:12:04] Speaker 02:
Again, as you read the objection that was made to the introduction of it at the hearing, it's because it was dispositive.

[00:12:12] Speaker 02:
Without that packet coming in, the agency could not meet their burden of proof.

[00:12:16] Speaker 02:
And I say I'm getting near my rebuttal time, but I'll continue.

[00:12:19] Speaker 02:
They could not meet their burden of proof of saying, I have a positive UA, because the doctor state was there.

[00:12:25] Speaker 02:
The chain of custody that was completed, that is only in that litigation packet, which is signed off by the MRO again, who never testified.

[00:12:34] Speaker 01:
Did the doctor sign off on your analysis?

[00:12:36] Speaker 01:
Was that?

[00:12:38] Speaker 01:
Is there a statement in the record that the doctor signed off that the test was positive?

[00:12:43] Speaker 02:
In the statement before you, I believe there is a one MRO sheet at the bottom, but I mean, not to see the court, while the litigation packet is not in the appendix.

[00:12:53] Speaker 02:
Yes, the litigation packet did conclude a statement from the doctor that it was a positive urinalysis.

[00:12:59] Speaker 02:
And he had signed off on the chain of custody form.

[00:13:02] Speaker 02:
The issue is without being able to subject that doctor to cross-examination of those or without having the documents ahead of time in order to question that puts a huge disadvantage.

[00:13:11] Speaker 02:
The courts looked at this in Ramirez before, where it talked about the issue of the psychological reports being placed in front, and whether or not... Is there something you can identify now?

[00:13:21] Speaker 03:
I mean, it appears that you did have the litigation packet, perhaps very, very tardy, where you can say, look, this is how our case was harmed and injured by receiving the litigation packet at such a late-breaking moment,

[00:13:39] Speaker 02:
As we sit here today, Your Honor, I can't without being able to subject that doctor to cross-examination.

[00:13:44] Speaker 02:
This is unlike a normal civil case.

[00:13:49] Speaker 02:
We don't have depositions and discovery.

[00:13:50] Speaker 02:
I don't get to know what the doctor is going to say until I get him on the stand for the first time, which has happened repeatedly.

[00:13:58] Speaker 02:
So no, but being denied that opportunity and being denied to have it ahead of time created the issue.

[00:14:04] Speaker 01:
You're already in your rebuttal time.

[00:14:07] Speaker 01:
Yes, sir.

[00:14:08] Speaker 01:
Can you just make a brief statement as to your assessment of the Douglas Factors?

[00:14:14] Speaker 02:
Yes, sir.

[00:14:15] Speaker 02:
So one of the biggest issues with the Douglas Factors, and I'll keep it very brief, Your Honor, is two issues actually kind of outside the rest of it.

[00:14:27] Speaker 02:
One of those is the entire zero tolerance, whether or not the warden had to terminate.

[00:14:35] Speaker 02:
And as the MSPB has stated,

[00:14:37] Speaker 02:
Whenever there's a zero tolerance, termination is automatic.

[00:14:41] Speaker 02:
There's a natural assumption the deciding official feels that way.

[00:14:44] Speaker 02:
He's not going to apply the Douglas Factors.

[00:14:47] Speaker 02:
And in this case, you're going to find that the warden did so.

[00:14:52] Speaker 02:
It was a fact finding by the arbitrator under Appendix Number Page 16.

[00:14:58] Speaker 02:
The arbitrator says termination is automatic, as suggested by the warden.

[00:15:02] Speaker 02:
Again, on 17, a careful review of the testimony of the warden

[00:15:07] Speaker 02:
could lead one to believe that the use of drugs and alcohol results in an automatic penalty of termination in many cases.

[00:15:14] Speaker 02:
the arbitrator gets around this by saying, well, while the warden, the deciding official may have said that, BOP policy doesn't require it.

[00:15:23] Speaker 02:
Well, the question for the arbitrator is not, is the policy correct?

[00:15:26] Speaker 02:
It's did the deciding official follow the policy?

[00:15:29] Speaker 02:
And he makes his own fact-finding here that the warden, while he says use the principles of Douglas Factors, did not apply the Douglas Factors directly.

[00:15:39] Speaker 02:
And then he goes on to acknowledge that the warden has stated,

[00:15:43] Speaker 02:
In this case that he felt termination was automatic And I am getting into my rebuttal, so I'll cover the rest Okay, thanks very much.

[00:15:52] Speaker 00:
Thank you Good morning your honors may I please court

[00:16:08] Speaker 00:
Starting with a point that Patricia's counsel has raised, I will start with the discussion regarding the litigation packet.

[00:16:15] Speaker 00:
As the court indicated through his questioning of counsel, counsel did and ultimately received the litigation packet, even if late.

[00:16:21] Speaker 00:
Counsel has failed to identify what, if anything, differently he would have asked the MRO, any other witness, had he had the litigation packet at his disposal, or had he reviewed it and then decided to ask questions of witnesses, even if late.

[00:16:36] Speaker 00:
There's nothing in the briefs indicating what he would have done differently, any additional arguments that would have been made.

[00:16:40] Speaker 04:
And so at this juncture, is there any good reason for why he got it only the morning of the hearing?

[00:16:46] Speaker 00:
Your honor, I'm unable to answer that question.

[00:16:48] Speaker 00:
There's nothing in the record indicating

[00:16:50] Speaker 00:
why the litigation packet may have been passed at the time that it was.

[00:16:55] Speaker 04:
Let me ask you another point that's really troubled me.

[00:17:00] Speaker 04:
The arbitrator seems to have made a fact finding that Mr. Haig admitted that he used marijuana.

[00:17:08] Speaker 04:
I can't find the record support for that admission.

[00:17:12] Speaker 04:
Can you help me with that?

[00:17:19] Speaker 00:
So the arbitrator did not state that Mr. Hag admitted that he used marijuana.

[00:17:25] Speaker 00:
What the arbitrator found, we can essentially look at two different portions of the record.

[00:17:30] Speaker 04:
Do you agree that there is no admission by Mr. Hag that he used marijuana?

[00:17:36] Speaker 00:
Mr. Hag admitted to his supervisors that he was arrested for DUI and that the police issued blood tests indicated that his

[00:17:47] Speaker 00:
blood tested positive for marijuana.

[00:17:50] Speaker 00:
Mr. Haag notified his supervisors of that.

[00:17:53] Speaker 00:
And then Mr. Haag, the day of his March 3rd urinalysis, indicated that he had been taking home tests, that he had been testing positive, indicating that he was aware that he would test positive.

[00:18:05] Speaker 04:
So again, he did not admit that he used marijuana.

[00:18:09] Speaker 00:
Is that correct?

[00:18:12] Speaker 00:
admitted that he smoked from a bait pen of a shipper.

[00:18:17] Speaker 03:
Right.

[00:18:17] Speaker 03:
I think what Judge Stark is trying to figure out is what to do with the statement at A11 by the arbitrator, where the arbitrator at the top of A11 says, quote, Mr. Hag admitted to using marijuana on or about that date, E9.

[00:18:34] Speaker 03:
And that date is referring to March 3, 2021, the date of the urine test.

[00:18:41] Speaker 03:
So that statement appears to me to be incorrect.

[00:18:47] Speaker 00:
So as we argued in our brief, the more reasonable reading of that is that Mr. Hagg notified his supervisors, that being Lieutenant Crout, owner about March 3 of the positive test.

[00:19:02] Speaker 00:
If your honors recall from taking a look at the transcripts, Lieutenant Crout testified that he essentially had multiple conversations with Mr. Hagg.

[00:19:11] Speaker 00:
Within about 24 hours of Mr. Hegg's initial arrest, Mr. Hegg apparently went to Lieutenant Crout and informed him of the DUI arrest.

[00:19:20] Speaker 00:
Lieutenant Crout then said to Mr. Hegg, OK, I need the police paperwork.

[00:19:25] Speaker 00:
So Mr. Hegg, there may have been at least maybe one, maybe two instances where he provided paperwork to Lieutenant Crout.

[00:19:33] Speaker 00:
Lieutenant Crout also testified at the arbitration hearing that he received additional police paperwork directly from the police.

[00:19:41] Speaker 00:
So it's clear from the record that Mr. Hagg had at least, let's say, two, maybe three conversations with Lieutenant Kraut, the last of which appears to have been on or about March 3, which is when Lieutenant Kraut and the warden asked Mr. Hagg to submit to the analysis.

[00:19:57] Speaker 00:
And so the more reasonable reading of that particular portion is that on or about March 3, Lieutenant Kraut received

[00:20:05] Speaker 00:
paperwork and essentially, I don't want to say an admission, but acknowledgment from Mr. Hag that the police paperwork indicated that he tested positive for THC.

[00:20:17] Speaker 01:
But there's a difference between Mr. Hag acknowledging that the test was positive and his admission that he used marijuana.

[00:20:28] Speaker 01:
He's contesting that fact.

[00:20:30] Speaker 01:
He's contesting any use of marijuana, saying,

[00:20:33] Speaker 01:
I have no idea how these tests might have been positive.

[00:20:37] Speaker 01:
The only thing I can speculate to is that maybe it came from the fact that I smoked this vape pipe.

[00:20:45] Speaker 01:
I don't see anything in referring to his affidavits on page 878, 79, 83, 84.

[00:20:56] Speaker 01:
I don't see anything there where he admitted to using marijuana.

[00:21:03] Speaker 01:
on March 3rd.

[00:21:04] Speaker 00:
If I could, Your Honor.

[00:21:06] Speaker 00:
It appears that the arbitrator understood exactly what Mr. Hegg was essentially admitting to.

[00:21:11] Speaker 00:
So if we look at page 10 of the record, the arbitrator acknowledged, this is in the first paragraph, quote, Mr. Hegg admitted he reported this test to the Bureau's management.

[00:21:23] Speaker 00:
Again, this is referring to the blood test that was administered by the police.

[00:21:28] Speaker 00:
And that he, quote, asserted he did not use any marijuana.

[00:21:32] Speaker 00:
he did admit to having used a vape pen given to him by one of the shippers and hypothesized that this may have been the reason for the positive test.

[00:21:40] Speaker 00:
And so I point the court to that because he's all there.

[00:21:45] Speaker 01:
But that's not an admission to using marijuana.

[00:21:50] Speaker 01:
If anything, he's disputing that.

[00:21:52] Speaker 00:
Right.

[00:21:52] Speaker 00:
And what I'm saying, Your Honor, is

[00:21:56] Speaker 00:
The arbitrator is not concluding that Mr. Hagg admitted to using marijuana.

[00:22:02] Speaker 00:
If we look at what Mr. Hagg admitted to on or about March 3rd and place that in the context of what the arbitrator acknowledged that Mr. Hagg admitted to, it's not the fact that the arbitrator understood Mr. Hagg to be admitting to using marijuana.

[00:22:15] Speaker 04:
And how do you explain A18 and the conclusion by the arbitrator that Mr. Hagg had two incidents of marijuana use within a month?

[00:22:26] Speaker 04:
which can only mean honor around the February arrest and honor around the March 3rd test.

[00:22:34] Speaker 04:
He doesn't say at A-18 Mr. Haag admitted to two marijuana uses within a month.

[00:22:41] Speaker 04:
But he makes a factual finding that Mr. Haag used marijuana twice within a month.

[00:22:47] Speaker 04:
And I would have thought that he's using as support for that conclusion

[00:22:52] Speaker 04:
what he mistakenly characterized as an admission by Mr. Hag that he, in fact, used marijuana.

[00:22:58] Speaker 00:
So again, without further explanation from the arbitrator here, what the reasonable interpretation here is that there essentially are two incidences where Mr. Hag tested positive for marijuana, that being the February 7th DUI accident and again on March 3rd.

[00:23:15] Speaker 00:
So it appears that the arbitrator is simply indicating that Mr. Hag tested, there were two separate tests, and that

[00:23:21] Speaker 00:
For each test, Mr. Haag tested positive.

[00:23:23] Speaker 03:
Right.

[00:23:24] Speaker 03:
And the arbitrator apparently did some independent research on the internet, according to Footnote 1 on A10, where he, based on this partial independent research, he concluded it couldn't be possible that the positive test with the police in February could be the same

[00:23:52] Speaker 03:
THC that was in the system in March of that same year because of how long THC lasts in a person's system.

[00:24:03] Speaker 00:
Right.

[00:24:04] Speaker 00:
So I saw that the arbitrator did include that as a footnote.

[00:24:07] Speaker 00:
What is most important to note here is that the arbitrator explained that irrespective of whether or not he believed Mr. Haag's theory as to how he came to test positive for marijuana for both February and March,

[00:24:20] Speaker 00:
that what was pretty disturbing with regard to his misconduct was, quote, the significance of the DUI.

[00:24:26] Speaker 00:
He referred to that specifically at page 10 of the appendix.

[00:24:30] Speaker 00:
What is also important to note here is that with regards to Mr. Hagg's removal, it's not the case that Mr. Hagg could or should have only been removed in the event that he tested multiple times for marijuana.

[00:24:42] Speaker 04:
But was he in fact removed just for the DUI?

[00:24:46] Speaker 04:
We don't have to get into, I don't think, how serious the DUI was and whether it could have been removed just for that.

[00:24:53] Speaker 04:
He in fact was not removed just for the DUI, was he?

[00:24:56] Speaker 00:
He was removed also because he tested positive on March 3rd.

[00:25:01] Speaker 00:
Right.

[00:25:01] Speaker 04:
So I don't think that means we can just ignore, well, the agency could have removed him maybe just for the DUI.

[00:25:09] Speaker 04:
Or is that what you would have us do?

[00:25:11] Speaker 04:
Just say, well, it could have been done on some other grounds than what it was done on, so don't worry about it?

[00:25:17] Speaker 00:
Well, I wouldn't say don't worry about it.

[00:25:19] Speaker 00:
I would say that the record indicates or makes clear

[00:25:29] Speaker 00:
Mr. Haag tested positive on March 3rd for THC.

[00:25:35] Speaker 00:
He made statements indicating that he knew that he would test positive, and that irrespective of what theory Mr. Haag put forth to explain why he was testing positive, the drug-free workplace program statement does not include language saying that there has to be intent behind it.

[00:25:55] Speaker 00:
And I wanted to bring that up because it seems as if

[00:25:59] Speaker 00:
Maybe one of the unstated arguments that ran pervasive in petitioners' brief is this idea that his consumption was not intentional.

[00:26:10] Speaker 00:
But I do think that that raises a point about what may have been quite frank, the willful ignorance of Mr. Hag regarding the events that occurred on February 6.

[00:26:20] Speaker 00:
Mr. Hag did indicate that he

[00:26:23] Speaker 00:
smoked out of this vape.

[00:26:25] Speaker 00:
And it would appear to be that he is now, that he is facing the repercussions, attempting to, for lack of a better word, bury his head in the sand and failing to ask questions in that moment, which may have been difficult because he was intoxicated, but to ask questions that would have led him to know in advance that there was marijuana in there.

[00:26:42] Speaker 00:
And so there's nothing in the workplace program that would seem to provide shelter for an employee who fails to ask questions when they are placed in a situation that Mr. Hag was in.

[00:26:52] Speaker 00:
and then to then deny knowledge and culpability.

[00:26:55] Speaker 03:
The focus of the penalty here, though, is not on that February event.

[00:27:01] Speaker 03:
It's really on the March urinalysis test.

[00:27:05] Speaker 03:
Is that right?

[00:27:05] Speaker 00:
Well, it's a combination of both the DUI accident and plus.

[00:27:08] Speaker 03:
I mean, the charge, charge two specifically says positive THC from a urinalysis test.

[00:27:16] Speaker 03:
Correct.

[00:27:16] Speaker 03:
So that's the basis.

[00:27:18] Speaker 03:
That's the thing we have to focus on.

[00:27:19] Speaker 03:
Right.

[00:27:22] Speaker 03:
Is it okay for the MSPB or an arbitrator to do independent scientific research and then rely on that in the final decision?

[00:27:34] Speaker 03:
I would think the answer is no, but if you think the answer is yes, I'd really like to hear it.

[00:27:39] Speaker 05:
You know, without warning, right?

[00:27:42] Speaker 03:
No briefing.

[00:27:44] Speaker 03:
I'm doing some freelance independent scientific research on google.com and here's what I've found and here's how I'm going to apply that.

[00:27:53] Speaker 03:
Do you think that's okay?

[00:27:54] Speaker 00:
Well, I cannot say that if placed in the same circumstances I would have done that.

[00:28:01] Speaker 00:
However, my background knowledge is a bit different as a former DUI prosecutor, and so I would not have had to do that.

[00:28:07] Speaker 00:
So I'm not sure that I am probably the fair person to ask that question to, because I knew the answer.

[00:28:13] Speaker 01:
Maybe what the arbitrator should have said was there's nothing in the record, and Haag hasn't produced any evidence to suggest that smoking a vape pen in February might produce a positive

[00:28:29] Speaker 01:
THC test in March.

[00:28:32] Speaker 01:
He could have said, because Mr. Haag failed to produce any evidence to support his defense, then I find that defense not sustainable.

[00:28:42] Speaker 01:
But he didn't say that.

[00:28:44] Speaker 00:
That's fair, Your Honor.

[00:28:44] Speaker 00:
I will note that the arbitrator did say that it is also not clear.

[00:28:49] Speaker 00:
I'm looking at page 10, the first sentence of the third paragraph.

[00:28:52] Speaker 00:
It is also not clear whether his assertion regarding the positive results of marijuana in both March 3

[00:28:58] Speaker 00:
in February 6-7 was the result of his contact with the stripper's vape pen.

[00:29:03] Speaker 00:
So there he's indicating there seems to be some ambiguity.

[00:29:05] Speaker 00:
So it's not as if he is vying into Mr. Haig's theory of how he came.

[00:29:09] Speaker 04:
But then he does, as I pointed out before, conclude at the end on 18 that there were two marijuana uses, which I think means he's making a finding.

[00:29:18] Speaker 04:
that the February vape pen can account for the march.

[00:29:21] Speaker 04:
But put that aside for a second.

[00:29:23] Speaker 04:
If we as a panel find that there was something improper about the arbitrator doing this outside research, and if we think that that factored into the decision, doesn't that mean we have to at least vacate and renounce this case?

[00:29:37] Speaker 00:
Yes, Your Honor.

[00:29:38] Speaker 01:
Thank you.

[00:29:40] Speaker 01:
Talk a little bit about the Douglas Factors, because I'm having trouble with the arbitrators

[00:29:47] Speaker 01:
discussion about the Douglas factors and how to support the conclusion that Mr. Huyck should be terminated.

[00:30:00] Speaker 01:
I mean, I got the sense from reading the arbitrator's decision

[00:30:14] Speaker 01:
that he was putting a lot of weight on the warden's statement that was probably somewhat misplaced, that one use is enough, or one DUI is enough.

[00:30:30] Speaker 01:
But that's not what the charges were.

[00:30:32] Speaker 01:
That's not what the conclusion was.

[00:30:35] Speaker 01:
The conclusion was that because of the DUI and not one but two incidents of marijuana, termination is the only appropriate conclusion.

[00:30:46] Speaker 01:
Then I have problems with both the conclusion with regard to two incidents of marijuana and the fact that this statement comes at the end of a very abbreviated

[00:31:00] Speaker 01:
discussion about the Douglas Factors, which I don't know, I came away with the sense that the arbitrator really did not consider the Douglas Factors in assessing the penalty.

[00:31:14] Speaker 00:
Your Honor, if we look at page 16 of the arbitrator's opinion,

[00:31:19] Speaker 00:
The arbitrator notes, consistent with the court, that it's the petitioner's position that the Douglas Factors were not thoroughly considered.

[00:31:29] Speaker 00:
And the arbitrator begins his analysis by saying that while not applying the Douglas Factors in a direct manner, it's clear that the warden used the principles set forth by Douglas to reach his conclusions.

[00:31:40] Speaker 00:
The arbitrator then, from page 16 through the end of his opinion, does go into detail regarding the Douglas Factors.

[00:31:49] Speaker 00:
If we look at page 17, the arbitrator does specifically hone in on one of the particularly salient Douglas factors, which is the length of service.

[00:32:00] Speaker 00:
And he indicates that it appears that one of the most important criteria is the petitioner's list of length of service, which at the time of the incident was only about two years.

[00:32:09] Speaker 00:
And the arbitrator looking at the length of service relative to the misconduct alleged in this case, which was the DUI accident and the March 3rd

[00:32:19] Speaker 00:
Positive tests concluded that removal was appropriate given, again, the totality of the circumstances relative to the short amount of time that the petitioner had been with BOP.

[00:32:30] Speaker 00:
The arbitrator also engaged in a pretty thorough analysis when he considered the cases that petitioner had raised with regard to other employees who had not been removed for somewhat similar instances of misconduct.

[00:32:45] Speaker 00:
And the arbitrator did do a thorough analysis, essentially saying that I understand that these are the cases that have been presented.

[00:32:53] Speaker 00:
But in my review of those cases, the employees there were not similarly situated because they had been with their agencies for 2030 or whatever particular time frame it had been, which distinguished it from the case at Barber for the arbitrator.

[00:33:11] Speaker 00:
The court views the arbitrators' opinion as somewhat succinct.

[00:33:15] Speaker 00:
He did hone in on what some of the key and salient Douglas factors were.

[00:33:21] Speaker 03:
Over time, but I do have one final question.

[00:33:24] Speaker 03:
And that is about the other side's argument that the government's failure to bring the doctor in to testify means that there is some failure of proof on the government's part to establish that there was

[00:33:42] Speaker 03:
positive test results in March of 2021.

[00:33:47] Speaker 03:
Could you speak to that?

[00:33:50] Speaker 00:
So essentially, Petitioner is raising an imperfect chain of custody argument and essentially saying that the doctor needs to come in to testify to the positive drug use, your analysis results, and to essentially show her.

[00:34:05] Speaker 03:
I think there's potentially a few different arguments.

[00:34:07] Speaker 03:
One is the chain of custody.

[00:34:10] Speaker 03:
I don't think I saw that.

[00:34:12] Speaker 03:
the term chain of custody appear until the great brief.

[00:34:15] Speaker 03:
Then there's a second argument.

[00:34:16] Speaker 03:
And that could be a proper foundation for the actual one-page test report.

[00:34:23] Speaker 03:
And you need the doctor for that.

[00:34:25] Speaker 03:
And then maybe there's a third argument.

[00:34:27] Speaker 03:
And that third argument would be the doctor needs to come in to assure the arbitrator of the reliability of the test and test results.

[00:34:39] Speaker 03:
So putting aside the chain of custody, could you just comment on the other two?

[00:34:44] Speaker 00:
So with regard to the doctor's presence, as we did note in our brief that the identity of the doctor was known to petitioner, and that there was nothing to prevent him from calling the doctor, and to the extent that he had questions for the doctor, there was nothing in the record indicating that that occurred.

[00:35:01] Speaker 00:
Even if the agency or petitioner had called the doctor to testify, it is

[00:35:07] Speaker 00:
There's nothing in the record or even indicated in Petitioner's brief what line of questioning he would have asked the doctor or what the doctor would have said differently.

[00:35:15] Speaker 00:
It's undisputed that Petitioner did test positive for marijuana when he gave the sample on March 3.

[00:35:25] Speaker 00:
There's nothing in the record indicating that Petitioner, let's say, directly challenged those results.

[00:35:31] Speaker 00:
He made statements indicating that he knew he was going to test positive.

[00:35:34] Speaker 00:
And so while I don't mean to say, you know,

[00:35:36] Speaker 00:
What difference does it make?

[00:35:39] Speaker 00:
What is before the court is the fact that the petitioner knew what his results would be.

[00:35:44] Speaker 00:
They weren't that deep that.

[00:35:46] Speaker 00:
And there's no evidence in the record that the doctor would or could have potentially testified differently, particularly if we do look at the MRO review sheet in which the doctor indicated the positive test.

[00:35:58] Speaker 00:
He presumably would have testified consistent with that document.

[00:36:01] Speaker 00:
And there's nothing in the record.

[00:36:02] Speaker 00:
And petitioners made no arguments incriminating otherwise.

[00:36:07] Speaker 03:
Okay, thank you.

[00:36:15] Speaker 03:
Bishop, I think you get your full five.

[00:36:18] Speaker 02:
Thank you, Your Honor.

[00:36:20] Speaker 02:
I'd like to start at the end of it.

[00:36:23] Speaker 02:
The last thing that was addressed, and that's what the doctor would presumably justify in the courts.

[00:36:29] Speaker 02:
Again, that's the issue.

[00:36:30] Speaker 02:
That's the presumption.

[00:36:32] Speaker 02:
The doctor is now not being subjected to cross-examination to be able to be detailed on that report.

[00:36:38] Speaker 02:
Did he comply with all the policies?

[00:36:39] Speaker 02:
Were there fatal errors that he made within the course of that test?

[00:36:43] Speaker 02:
until he can be questioned, until he can be called to task for those, then to take those findings even more damaging without the paperwork, but especially without him testifying, there are too many issues, even outside the chain of custody.

[00:36:57] Speaker 02:
But the chain of custody is an issue itself, Your Honor.

[00:37:01] Speaker 04:
What about the suggestion that you should have called him anyway?

[00:37:04] Speaker 02:
I mean, he was on the witness list, Your Honor.

[00:37:06] Speaker 02:
He's a contract employee, just like Ramirez with the agency.

[00:37:09] Speaker 02:
So in that issue, I believe you will also find that... What is the answer?

[00:37:16] Speaker 04:
You thought he was going to be there?

[00:37:18] Speaker 02:
Yes, Your Honor.

[00:37:19] Speaker 02:
In every litigation, the doctor had always been called prior.

[00:37:24] Speaker 02:
Actually, we got that testimony from Kevin Hood, and I can point that to you in the appendix, that typically the doctor does testify on behalf of the agency.

[00:37:32] Speaker 02:
I mean, not in the record, but yes, Your Honor, I was caught completely by surprise when the doctor

[00:37:39] Speaker 02:
was not there.

[00:37:44] Speaker 02:
When you talked about the admission of marijuana, there's some questioning concerning that.

[00:37:48] Speaker 02:
Well, they're trying to say this is a misstatement.

[00:37:53] Speaker 02:
The arbitrator doesn't say it just once.

[00:37:55] Speaker 02:
He states that Mr. Hagg made the admission twice within it, in very clear language.

[00:38:00] Speaker 02:
So not only on page 11, which was noted before, but if you look on page 4, the second paragraph,

[00:38:05] Speaker 02:
you're going to see another admission where it says Mr. Hack admitted to his intoxication and use of marijuana.

[00:38:13] Speaker 04:
And by the way, in both places there's a reference to E9.

[00:38:17] Speaker 04:
What is E9?

[00:38:19] Speaker 04:
And is that in our appendix?

[00:38:21] Speaker 04:
That is, the arbitrator seems to find support for the admission at E9.

[00:38:26] Speaker 02:
Let me look at page 23 of the appendix, and it will tell me what E9 is.

[00:38:35] Speaker 02:
That would be the HAG affidavit, which I know are, I don't have the appendix numbers for you, but the affidavit for Mr. HAG.

[00:38:42] Speaker 04:
It's the collective collection of HAG affidavits.

[00:38:46] Speaker 04:
Yes, Your Honor.

[00:38:47] Speaker 04:
Thank you.

[00:38:52] Speaker 02:
One issue that wasn't addressed due to timing, and I would like to cover just very briefly, and that's the issue of this prior usage.

[00:39:01] Speaker 02:
that Mr. Hague may have used drugs prior to his work with the BOP.

[00:39:06] Speaker 02:
There was testimony concerned.

[00:39:09] Speaker 02:
that the warden, when he was hired, he disclosed it was a prior drug usage.

[00:39:13] Speaker 02:
The warden signed a waiver to allow him to come in, which was in the power of the warden.

[00:39:19] Speaker 02:
But that's not contained anywhere within the proposal letter.

[00:39:23] Speaker 02:
But then it becomes clear during questioning of the warden during the arbitration that this was a factor that he took into account.

[00:39:30] Speaker 02:
This now becomes an aggravating factor in violation of ward that he used to determine

[00:39:36] Speaker 02:
I have a history here.

[00:39:38] Speaker 02:
And in fact, they wouldn't use the exact words.

[00:39:40] Speaker 02:
What does this mean to you?

[00:39:42] Speaker 02:
History of drug use.

[00:39:44] Speaker 02:
This is troubling for a few reasons.

[00:39:46] Speaker 02:
I mean, one, it wasn't in the proposal letter.

[00:39:48] Speaker 03:
Word was about the agency relying in part on cross-party communications.

[00:39:53] Speaker 03:
And here, it's more the fact finder relying on materials that maybe the agency, the deciding official didn't rely on.

[00:40:03] Speaker 03:
So is word the right?

[00:40:05] Speaker 02:
Believe it is because this case the deciding official itself did rely on them, too You have it first in the warden's testimony that he relied on that history And again, he was not a fact-finder and that he was a deciding official for the warden

[00:40:22] Speaker 03:
cleaned up his testimony, so to speak, right?

[00:40:27] Speaker 03:
He tried to, and then he... And so now it's a question of fact, how best to understand what did the warden really mean when he said

[00:40:37] Speaker 03:
Whatever you say.

[00:40:38] Speaker 02:
I don't think so.

[00:40:39] Speaker 02:
And again, I guess you can try to make that.

[00:40:41] Speaker 02:
But at this point, at two different locations, on the appendix 270 to 271, when I hired him, I approved a waiver because he was previously charged with the use of illegal drugs.

[00:40:53] Speaker 02:
So I gave him an opportunity.

[00:40:54] Speaker 02:
His misconduct that occurred was a problem for the agency, for FCIM McCain, and the reputation.

[00:41:00] Speaker 02:
That was taken into consideration.

[00:41:03] Speaker 02:
Due to him continuing to conduct himself, I felt he could not be rehabilitated.

[00:41:08] Speaker 02:
That's why I made the decision I made.

[00:41:11] Speaker 02:
I think that's pretty crystal.

[00:41:13] Speaker 02:
Yes, the warden did attempt to backtrack, but then

[00:41:17] Speaker 02:
actually was questioned again.

[00:41:18] Speaker 02:
So knowing that, the prior drug usage, prior to employment, how did that affect your analysis of the Douglas Factors?

[00:41:25] Speaker 02:
Ward's answer, history of drug use.

[00:41:27] Speaker 02:
So while Ward was the knowledge through ex parte, one of the issues, what the deciding officials found in Ward was, hey, I'm relying on this extra information to establish a history.

[00:41:39] Speaker 02:
It's the same thing the Warden did here when that was not within the proposal.

[00:41:43] Speaker 02:
So what about the credibility point?

[00:41:44] Speaker 04:
Because the Warden does

[00:41:46] Speaker 04:
contradict himself elsewhere in his testimony, and isn't it for the arbitrator who saw all of this to decide which portion of the testimony to credit?

[00:41:55] Speaker 02:
I believe so, but if you look at the question I just cited, it comes immediately thereafter the question where he says, well, I relied on

[00:42:04] Speaker 02:
on what I should have relied on.

[00:42:06] Speaker 02:
In fact, he doesn't, and I don't have the exact quote, but the word doesn't say what he relied on.

[00:42:10] Speaker 02:
He goes, no, I relied on what I was supposed to, basically.

[00:42:13] Speaker 02:
And then that was the follow-up question to that.

[00:42:16] Speaker 04:
Someone later says, are you saying that was not a factor?

[00:42:19] Speaker 04:
And he says it was not a factor.

[00:42:21] Speaker 04:
So you misspoke earlier, and he's like, he just says it was contained in files.

[00:42:28] Speaker 04:
So anyway, I mean, the point being, it seems to me his testimony is all over the place.

[00:42:35] Speaker 04:
But we didn't see it, and the arbitrator did.

[00:42:38] Speaker 04:
And the arbitrator credited the portions

[00:42:41] Speaker 04:
credit certain portions and not other portions.

[00:42:43] Speaker 04:
Shouldn't we just defer to that?

[00:42:46] Speaker 02:
You can attempt to make that difference, but the very fact that it was contained, he did use exact words that it was a factor.

[00:42:53] Speaker 02:
I mean, either, again, you have a contradiction in the testimony, or you have consideration of something outside the proposal letter.

[00:43:00] Speaker 02:
And I don't think it can be argued that there at least wasn't some consideration of it.