[00:00:00] Speaker 03:
Our final case for argument today is 23-1831, Halleck versus DOJ.

[00:00:08] Speaker 03:
Mr. Sincar, please proceed.

[00:00:10] Speaker 01:
Good morning, may it please the court.

[00:00:14] Speaker 01:
My name is Robert Sincar and I'm here representing Michael Halleck.

[00:00:18] Speaker 01:
This appeal challenges the decision of an MSP administrative judge affirming the removal of Mr. Halleck from a position as an Assistant U.S.

[00:00:29] Speaker 01:
Attorney in the Northern District of Mississippi.

[00:00:33] Speaker 01:
We have several different issues, but the central claim that we make here that this court, I think, needs to address and justifies reversal is that the record here is corrupted by a foundational legal error.

[00:00:48] Speaker 01:
And that is, both in the decision making at the Department of Justice and in the AHA's affirmance, they studiously excluded all evidence

[00:01:00] Speaker 01:
of Mr. Halleck's successful performance.

[00:01:05] Speaker 01:
So, right from the beginning in the PIP, the Performance Improvement Plan,

[00:01:13] Speaker 01:
deputy chief of the criminal division, Susan Bradley, was in charge of that operation.

[00:01:18] Speaker 01:
She wrote the proposed removal, and she admitted that she did not consider any of the positive work that... Where did she admit that?

[00:01:31] Speaker 01:
I'm sorry?

[00:01:32] Speaker 03:
Where did she admit that?

[00:01:32] Speaker 03:
You said she admitted she did not consider any of the positive work.

[00:01:36] Speaker 01:
Where did she admit that?

[00:01:37] Speaker 01:
Appendix page

[00:01:41] Speaker 01:
1028 is where we have some of that discussion, Your Honor.

[00:01:46] Speaker 01:
She also admitted, for example... 1028?

[00:01:49] Speaker 01:
Yes.

[00:01:50] Speaker 01:
Okay.

[00:01:52] Speaker 01:
It's also quoted in our brief on page... opening brief on page 27.

[00:01:56] Speaker 03:
Okay, we're on 1028.

[00:01:58] Speaker 03:
Did she admit it?

[00:02:00] Speaker 01:
I still think it's 1028, I suppose.

[00:02:07] Speaker 03:
Yep, I'm on 1028.

[00:02:18] Speaker 01:
There's actually several parts to that point.

[00:02:21] Speaker 01:
There's not just one page I want to cite you to.

[00:02:33] Speaker 01:
So it goes really from 1026 through 1028.

[00:02:39] Speaker 01:
It was a discussion we had back and forth.

[00:02:41] Speaker 01:
So for example,

[00:02:44] Speaker 01:
Part of the proposed removal discussion.

[00:02:47] Speaker 03:
I just need to know a page number and a line number, counsel.

[00:02:50] Speaker 03:
What part of this did she make this admission?

[00:02:53] Speaker 01:
All right.

[00:02:54] Speaker 01:
Appendix page 1026.

[00:03:00] Speaker 01:
And the discussion starts on

[00:03:14] Speaker 01:
on page 103, line 2, and it goes over the next several pages.

[00:03:29] Speaker 01:
And we're talking about the names of various probation officers that Mr. Hallett worked with who complimented him.

[00:03:37] Speaker 01:
And the reason why we got into that discussion, so it goes over those next couple pages there, the reason why we got into that discussion is because in the proposed removal, there's references to unnamed probation officers who complained about Mr. Hallett's work.

[00:03:52] Speaker 01:
And so our effort was to both find out who they are so we could respond to them, but also to point out in the course of these proceedings that Mr. Halleck had received compliments from probation officers.

[00:04:09] Speaker 01:
And in fact, also if we, let's see.

[00:04:23] Speaker 01:
Ultimately, what happened in the hearing here, it gets truncated because the administrative judge rules that positive information about the performance of Mr. Halleck is not relevant.

[00:04:38] Speaker 01:
It's only the bad things he did.

[00:04:41] Speaker 03:
I don't know what you're talking about.

[00:04:43] Speaker 03:
I don't see the admission.

[00:04:45] Speaker 03:
The most I see here is this particular person.

[00:04:48] Speaker 03:
saying on page 104 that she has never heard any of these, you or whoever was doing the questioning says, are you familiar with this person?

[00:04:57] Speaker 03:
Are you familiar with this person?

[00:04:58] Speaker 03:
Are you familiar with this person?

[00:04:59] Speaker 03:
And then ultimately say, do you know that all these people give him compliments?

[00:05:02] Speaker 03:
And her response is, I have never heard compliments from any of those gentlemen about Mr. Howard's work, no.

[00:05:07] Speaker 03:
So what she said is nobody presented her with any proof or ever called her and complimented him.

[00:05:13] Speaker 03:
So you're saying she didn't take into account positive work

[00:05:17] Speaker 03:
She took into account all the things that she was made aware of.

[00:05:20] Speaker 01:
Your Honor, respectfully, I think you're flipping what's going on here.

[00:05:26] Speaker 01:
This is in the context of a PIP, which she is running.

[00:05:31] Speaker 01:
Excuse me, I'm just getting over a cold a little bit.

[00:05:35] Speaker 01:
Which she is running, and she's doing the investigation.

[00:05:38] Speaker 01:
And so what you see here, it's not that people are supposed to call her, it's she directed the investigation.

[00:05:47] Speaker 01:
And she did not inquire, for example, the number of agencies that Mr. Halleck worked with.

[00:05:57] Speaker 01:
you're trying to investigate whether someone's doing a good job, it would be incumbent upon her, because it's her investigation, to see what other agents who worked with Mr. Halleck, what their view was of his work, and she didn't do that.

[00:06:14] Speaker 00:
That's a slightly different argument than saying you can point to an admission where she says, no, I don't consider any positive information.

[00:06:24] Speaker 01:
I apologize if it came across as if she had that admission.

[00:06:29] Speaker 01:
Part of the problem is, is that the administrative judge cut me off to pursue what she did or did not do on the proposition that that was not relevant.

[00:06:39] Speaker 01:
That exploring what positive performance of Mr. Halleck she considered in making her proposed removal.

[00:06:47] Speaker 00:
And that's what- Will it add to the performance evaluations over the years?

[00:06:52] Speaker 00:
Weren't they in the record?

[00:06:53] Speaker 00:
Yes.

[00:06:54] Speaker 00:
And there was a lot of positive in there, you would say.

[00:06:58] Speaker 00:
So how can we make an assumption that that was not considered by either the U.S.

[00:07:04] Speaker 00:
Attorney's Office or by the board?

[00:07:07] Speaker 01:
Well, it's curious in the way the record reads in that regard, Your Honor.

[00:07:13] Speaker 01:
So we have positive

[00:07:16] Speaker 01:
I mean, he starts out in 2016, 2017.

[00:07:19] Speaker 01:
He transitions to being in a regular AUSA, and he's addressing some issues.

[00:07:25] Speaker 01:
2018, he has reviews that applaud what he's been doing and how hard he's been working.

[00:07:31] Speaker 00:
And then that's laid out, by the way, by the board, isn't it?

[00:07:37] Speaker 01:
It's not laid out.

[00:07:39] Speaker 01:
I mean, it exists.

[00:07:41] Speaker 01:
But the question is that you have, in 2019,

[00:07:46] Speaker 01:
his mid-year review.

[00:07:49] Speaker 01:
And that is brief, but you're doing great, keep doing what you're doing.

[00:07:55] Speaker 01:
And then two months later, he gets the PIP.

[00:07:58] Speaker 01:
And so what you have is in that record, there's no explanation of how any of what went before could fit there.

[00:08:07] Speaker 01:
As this court said in Santos, that the question of the PIP is not just whether it gives notice

[00:08:16] Speaker 01:
to the employee of any problems, but whether it's justified.

[00:08:20] Speaker 01:
And I would submit, on this record, you can't find out why the PIP was justified.

[00:08:28] Speaker 01:
And even when we get to look at other components of the record, because the record is not just Ms.

[00:08:36] Speaker 01:
Bradley's testimony, but the deciding official of the Justice Department, Ms.

[00:08:40] Speaker 01:
O'Rourke.

[00:08:41] Speaker 01:
For example, we put in

[00:08:45] Speaker 01:
letters from judges and other law enforcement folks that Mr. Hallett worked with, and who complimented him, said he did a great job, and so forth.

[00:08:56] Speaker 00:
And the board expressly references that evidence at 829 and 30, does it not?

[00:09:02] Speaker 00:
I'm sorry, who reference?

[00:09:03] Speaker 00:
829 to 30.

[00:09:05] Speaker 00:
Isn't that the board opinion?

[00:09:06] Speaker 00:
I also consider the fact that the defense submitted several reference letters from judges or representatives from other agencies who spoke highly of him.

[00:09:14] Speaker 01:
But the Justice Department totally discounted that.

[00:09:19] Speaker 01:
So the Justice Department's decision is what the AJA was reviewing.

[00:09:25] Speaker 00:
So your argument, your laws at the board, the administrative judge, considered out of the positive effects.

[00:09:32] Speaker 01:
No, I don't believe she did.

[00:09:33] Speaker 01:
I think she followed the thinking of the Justice Department.

[00:09:37] Speaker 01:
Because we explicitly challenged that decision of justice to

[00:09:44] Speaker 01:
not consider, for example, the judges, law enforcement agents that were recommending Mr. Halleck.

[00:09:51] Speaker 01:
And the rationale for that was because they didn't supervise him.

[00:09:56] Speaker 01:
Nevertheless, unnamed judges and unnamed probation officers that supported and that were referred to in the removal papers, the deciding official credited

[00:10:10] Speaker 01:
And so that inconsistency, and I think that the AJ embraced all that.

[00:10:17] Speaker 01:
I don't think she challenged it.

[00:10:18] Speaker 01:
She didn't make findings separate from the Justice Department.

[00:10:24] Speaker 01:
She affirmed what the Justice Department did.

[00:10:28] Speaker 01:
So she didn't say, no, they were wrong here, and I'm going to consider this, even though they didn't.

[00:10:36] Speaker 01:
But so the problem that you have is that the record here doesn't really even let you fairly evaluate

[00:10:53] Speaker 01:
criticisms that are in it.

[00:10:54] Speaker 01:
So first of all, it's not just a matter of the overall amount of evidence.

[00:11:00] Speaker 01:
So it's not just, here's a pile of bad things, here's a bigger pile of good things, or vice versa.

[00:11:05] Speaker 01:
It's not just at that gross level, but it is actually understanding the specific performance issues that they claim Mr. Halle can.

[00:11:15] Speaker 01:
So for example, there's a case, U.S.

[00:11:18] Speaker 01:
versus Cyrus Smith.

[00:11:19] Speaker 01:
I think we have a typo in one of our briefs of Cyrus Vance.

[00:11:24] Speaker 01:
But the criticism in the proposed removal was that in a mock trial, he didn't do very well in asking direct questions of an FBI agent who was practicing for a trial.

[00:11:37] Speaker 01:
Now, the evidence that we weren't allowed to get in, and is not in, is that that case was run by a senior assistant justice attorney, Mr. Minns, and had asked Mr. Halleck to just help out a couple minutes before, read these questions for direct, but then I'm going to do a cross-examination of the FBI agent to prepare him for the case.

[00:12:03] Speaker 01:
Fine.

[00:12:04] Speaker 01:
Now, Ms.

[00:12:05] Speaker 01:
Bradley, who wrote the removal decision, she was not part of that, but she watched, she wasn't part of that assignment.

[00:12:12] Speaker 01:
She came there and watched what Mr. Halleck did.

[00:12:14] Speaker 01:
Mr. Moons thought that Mr. Halleck did fine, and in fact asked Mr. Halleck to help him prepare other witnesses for the actual trial of the case.

[00:12:26] Speaker 01:
So the notion that

[00:12:30] Speaker 01:
his preparation in that particular instance of the mock trial was somehow something terrible.

[00:12:38] Speaker 01:
It was a judgment that has to be understood in the broader point that the AUSA who was in charge of the case felt he did just fine and that his work was excellent.

[00:12:52] Speaker 03:
You're saying now that's in this record?

[00:12:57] Speaker 01:
No, we put it in, but they did not consider it, no.

[00:13:02] Speaker 01:
So it's not in the record.

[00:13:02] Speaker 03:
If something's in the record or it's not in the record, then there's whether it was considered or not.

[00:13:07] Speaker 03:
Those are two different issues.

[00:13:10] Speaker 03:
I'm finding your argument very difficult to follow.

[00:13:12] Speaker 03:
Is this evidence in the record?

[00:13:15] Speaker 01:
The evidence of Mr. Halleck helping out with the trial of these

[00:13:26] Speaker 01:
I'm not exactly sure what issue you're looking at here, Your Honor.

[00:13:31] Speaker 01:
The proposed removal rested on just this one example.

[00:13:37] Speaker 01:
And I'm just using it as an example of how limited the record is.

[00:13:42] Speaker 01:
And so how do you describe it?

[00:13:44] Speaker 00:
Mr. Mims, this O.S.O.

[00:13:46] Speaker 00:
said perhaps closing your client.

[00:13:49] Speaker 00:
Is that in the record?

[00:13:50] Speaker 01:
The fact that he asked our client

[00:13:55] Speaker 01:
to work with him and do that.

[00:13:57] Speaker 01:
Yes, Mr. Halleck testified to that in the hearing.

[00:14:02] Speaker 00:
And so your contention is that it was overlooked by the deciding official and or the judge?

[00:14:07] Speaker 00:
Correct.

[00:14:08] Speaker 00:
And both the judge also overlooked it?

[00:14:12] Speaker 01:
Yes, yes.

[00:14:13] Speaker 01:
And in part, again, that comes down to her point that

[00:14:19] Speaker 01:
is really quite simple, which is that positive performance shouldn't be considered in the context of these proceedings.

[00:14:29] Speaker 03:
I mean, that, in a simple way... I don't see anywhere where anyone said that.

[00:14:32] Speaker 03:
I don't see the deciding official saying that.

[00:14:34] Speaker 03:
I don't see the board saying that.

[00:14:36] Speaker 03:
I don't see anyone saying they're not going to consider a positive performance.

[00:14:43] Speaker 01:
On the page,

[00:14:47] Speaker 01:
We put it in big print on page 27 of our opening brief, and that cites to page 1028, which is tiny print.

[00:15:02] Speaker 01:
But when I tried to cross-examine Ms.

[00:15:07] Speaker 01:
Bradley,

[00:15:08] Speaker 01:
about not considering any of Mr. Halleck's satisfactory performance, she said, quote, Mr. Sincar proposed renewals on performance do not usually identify instances of positive performance.

[00:15:21] Speaker 01:
It's a proposed removal for unacceptable performance.

[00:15:25] Speaker 01:
So they cite or give examples of unsuccessful performance.

[00:15:28] Speaker 01:
And I understand it doesn't mean that 100% of the things he did was unacceptable.

[00:15:33] Speaker 01:
My response was essentially a straightforward articulation of the substantial evidence standard.

[00:15:38] Speaker 01:
That's true, Your Honor.

[00:15:40] Speaker 01:
But the law with respect to the substantial evidence that the agency has to prove requires that they consider the whole record, including evidence that tracks from their proposed conduct.

[00:15:50] Speaker 01:
And so it would be incumbent upon them, if there were such satisfactory performance, to explain why, in fact, that did not detract from their conclusion that removal was appropriate.

[00:16:03] Speaker 01:
I have one reserved sometimes for rebuttal.

[00:16:07] Speaker 01:
And so I have a few seconds left if I could pause here.

[00:16:10] Speaker 03:
That's fine.

[00:16:13] Speaker 03:
Yep.

[00:16:13] Speaker 03:
OK.

[00:16:13] Speaker 03:
Thank you.

[00:16:24] Speaker 02:
The court should affirm the decision of the board because it was not arbitrary, capricious, and of use of discretion, or otherwise not in accordance with the law, and it was supported by substantial evidence.

[00:16:36] Speaker 02:
If I could please just first turn to counsel's argument regarding substantial evidence.

[00:16:43] Speaker 02:
Counsel appears to be arguing that this decision by the board is not supported by substantial

[00:16:50] Speaker 02:
and not based on attacking specific incidents of deficient performance.

[00:16:56] Speaker 02:
Overall, throughout the proceedings, it appears that Mr. Halleck more or less agrees that these incidents took place.

[00:17:04] Speaker 03:
Give me an example of some of the incidents.

[00:17:07] Speaker 02:
For example, Your Honor, there was the rave case that came down from the Supreme Court, which changed the elements that the jury had to be advised on.

[00:17:18] Speaker 02:
And multiple times prior to the PIP being instituted, it was brought to Mr. Howlett's attention that these elements had changed and that they needed to be properly instructed on.

[00:17:29] Speaker 02:
And prior to the PIP, in indictment documents presented to his supervisors and to the court, he improperly articulated the elements of the offense.

[00:17:42] Speaker 02:
And then once they were in the PIP period, he again

[00:17:46] Speaker 02:
improperly instructed the grand jury on the elements of defense and his supervisor had to stand up and actually correct that misinterpretation.

[00:17:55] Speaker 02:
Here he seems to be arguing that there was not substantial evidence to support the board's decision because the decision official did not take into consideration some positive character letters presented by Mr. Halleck.

[00:18:13] Speaker 02:
And we can test that that's not what the record supports.

[00:18:18] Speaker 02:
Ms.

[00:18:19] Speaker 02:
Orr, the decision official on page 1054 of the record, indicated that she weighed all the evidence, but also articulated that those character letters was not referencing performance during the PIP period.

[00:18:42] Speaker 03:
Where are you in the 1-0-5-4?

[00:18:44] Speaker 02:
Actually, Your Honor, I would also direct you to the decision letter at page 143, where she articulates what she considered, which included the documents provided by Mr. Halleck.

[00:19:01] Speaker 02:
Now, one other thing I'd like to bring to the Court's attention in regards to these character letters.

[00:19:06] Speaker 03:
Yeah, number 143.

[00:19:07] Speaker 03:
Where does she mention the documents?

[00:19:12] Speaker 02:
Are you going to refer me to a page?

[00:19:13] Speaker 02:
Yes, Your Honor.

[00:19:14] Speaker 02:
At the bottom, 143, after careful and thorough review of the record, including the proposal, the attachments, your written response, and attachment in your oral reply, which includes these character letters.

[00:19:26] Speaker 03:
Oh, actually, she goes into more detail, doesn't she, on page 149 and 150?

[00:19:30] Speaker 03:
Or she, they, I don't know who this is.

[00:19:33] Speaker 03:
149 and 150, is this the same thing, or is this something different?

[00:19:37] Speaker 03:
Uh, 149 to 152, again, addresses the... I have several letters of support from individuals with whom you have worked, appreciated your efforts, extended diligence with which you performed your duties.

[00:19:48] Speaker 03:
However, those individuals are not responsible for supervising you on a daily basis, nor are they tasked with reviewing and evaluating your work on matters.

[00:19:56] Speaker 03:
It's your supervisor's assessment that matters in my consideration of this proposal.

[00:20:01] Speaker 03:
But has she rejected entirely everything else because they're not supervisors?

[00:20:05] Speaker 03:
Yeah, I think she had credibility determination and said... She found those people not credible?

[00:20:12] Speaker 02:
Well, for one, they weren't referencing specifically conduct during the PIP performance period that was in question.

[00:20:19] Speaker 02:
So it didn't directly refute the issues that were presented.

[00:20:24] Speaker 02:
The other matter I'd like to draw the board's attention to is

[00:20:30] Speaker 02:
These letters seem to be brought to contradict this general allegation that judges and probation officers were critical or upset with Mr. Halleck's performance.

[00:20:44] Speaker 02:
But that's really not an issue that was before the board.

[00:20:48] Speaker 02:
The United States Attorney for the Northern District of Mississippi footnote five on his decision letter

[00:20:58] Speaker 02:
stated that he wasn't considering the judge's inputs as a basis to find substantial evidence to support the instances of deficient performance.

[00:21:10] Speaker 02:
And then Ms.

[00:21:10] Speaker 02:
O'Rourke goes on to say that she didn't consider the probation officer's comments.

[00:21:16] Speaker 02:
And so what this general character letter seemed to be attacking are these general assertions by probation officers and judges about his deficient performance

[00:21:27] Speaker 02:
which the decision officials did not use as a basis to find efficient performance.

[00:21:34] Speaker 00:
So that now seems to go to what the deciding official did with his positive evidence.

[00:21:40] Speaker 00:
How about the administrative judge and the objection at the hearing?

[00:21:46] Speaker 00:
How could we be confident that the board actually considered all of this evidence as well?

[00:21:53] Speaker 02:
The board also considered all the evidence that was put before them.

[00:21:56] Speaker 02:
And there's nothing in the record to indicate that they otherwise rejected it.

[00:22:02] Speaker 02:
The board explained that we're here to decide whether your deficient performance rose to a level that required an unsatisfactory performance review.

[00:22:13] Speaker 02:
And so they took into consideration everything that was put before them, including everything that Mr. Hawick put before them.

[00:22:23] Speaker 02:
an opportunity to provide evidence to refute the specific allegations of deficient performance.

[00:22:34] Speaker 02:
All decisions indicate that the board took that into consideration.

[00:22:43] Speaker 03:
Ultimately, the decision to remove him was based on poor performance in case handling, poor performance in his advocacy, and poor performance in his writing.

[00:22:52] Speaker 03:
So pretty much across the board.

[00:22:54] Speaker 03:
Is that?

[00:22:55] Speaker 02:
So we have the five critical elements here.

[00:22:57] Speaker 03:
And were each of them, I'm just curious, do each of them independently support removal, or was it collectively that they support removal?

[00:23:05] Speaker 02:
I don't believe that they articulated whether it was one or all of them that supported removal and the decision.

[00:23:13] Speaker 02:
But the Santos case says that just deficient performance, even just one critical element, is grounds for removal.

[00:23:20] Speaker 03:
Do you understand the appeal to be arguing on these underlying three elements, or to be arguing mainly that there was also positive stuff that should have been weighed?

[00:23:33] Speaker 02:
My understanding is simply that Mr. Holick believes that there was positive information that should have been weighed that was not weighed.

[00:23:41] Speaker 02:
But it's all to say that he had due process in these proceedings.

[00:23:46] Speaker 02:
He was permitted to testify before the administrative judge, provide an oral statement, provide written comments.

[00:23:55] Speaker 02:
And so he had every opportunity to bring these matters to the attention of the decision official.

[00:24:03] Speaker 02:
And every indication in the record is that they considered all matters before them in reaching their decision.

[00:24:08] Speaker 00:
He also seems to be troubled by what he would say was a very quick change of view of his superiors, of his performance.

[00:24:16] Speaker 00:
He characterizes that through July, I think it was, of 2019.

[00:24:22] Speaker 00:
They were patting him on the back and telling him, everything's fine, you're doing great, keep up the good work.

[00:24:26] Speaker 00:
And only two months later, they put him on a pip.

[00:24:29] Speaker 00:
Is that a fair interpretation of the record?

[00:24:32] Speaker 02:
No, I don't believe that accurately reflects the record evidence.

[00:24:36] Speaker 02:
In the record, we have

[00:24:38] Speaker 02:
in 2017, going back as early as 2017, his supervisor, Mr. Norman, providing him a pretty severe letter articulating all the deficiencies in his performance.

[00:24:50] Speaker 02:
His ultimate performance work report for 2017, while it was satisfactory,

[00:24:58] Speaker 02:
Almost every critical element said, you've got issues.

[00:25:02] Speaker 02:
There's multiple things that you have to improve.

[00:25:05] Speaker 02:
2018, while it said it was satisfactory, it again says, we see you're trying.

[00:25:10] Speaker 02:
But does that get by any means a glowing review?

[00:25:12] Speaker 02:
2019, you have testimony from Mr. Norman that he was, if not daily basis, very routinely giving oral feedback as to the issues that Mr. Holick was continuing to experience.

[00:25:28] Speaker 02:
Then when it got to the midterm feedback in July, he did have a very quick informal discussion with him that said keep up the good work.

[00:25:37] Speaker 02:
He exclaimed that in his testimony to the administrative judge in which he explained that at some point this becomes a little demoralizing and he wanted to continue to

[00:25:49] Speaker 02:
encourage him to become a good prosecutor, and they hadn't had any incidents leading up to that performance review for several weeks.

[00:25:57] Speaker 02:
And then very quickly after that performance review, we have almost two months of multiple incidents of deficient performance, which led to be the basis for the PIP.

[00:26:08] Speaker 02:
So looking at the record as a whole, overall, I don't think that accurately reflects the issues.

[00:26:18] Speaker 02:
no, unless the court has any further questions.

[00:26:21] Speaker 03:
Thank you, counsel.

[00:26:23] Speaker 03:
We'll restore two minutes of rebuttal time.

[00:26:25] Speaker 03:
Mr. Sinclair, please.

[00:26:27] Speaker 01:
Just briefly, Your Honor, I appreciate your...

[00:26:34] Speaker 01:
your indulgence here.

[00:26:35] Speaker 01:
I think the key point here that I was trying to get out, and I disagree with my colleague, is that it is not true that either the board or certainly DOJ considered everything.

[00:26:47] Speaker 01:
And that objection that was sustained by Judge Delacruz is key to that.

[00:26:54] Speaker 01:
Because what you see from the performance reviews is

[00:27:00] Speaker 01:
Exactly.

[00:27:01] Speaker 01:
2016, he goes to the Northern District of Mississippi in this unique position.

[00:27:07] Speaker 01:
2017, new administration and he has shaking issues and he works hard.

[00:27:15] Speaker 01:
And then 2018, what you see is a very positive

[00:27:22] Speaker 01:
trend line for him.

[00:27:24] Speaker 01:
For example, on Appendix 195, and this is from the 2018 PWP, he said, Mr. Halleck has made noticeable efforts to improve and sharpen his presentation and advocacy skills during the reporting period.

[00:27:38] Speaker 01:
He is learning what is expected of him and is adjusting from being in the more relaxed reentry court setting to the demands of the more formal courtroom setting in regular U.S.

[00:27:47] Speaker 01:
District court proceedings on Appendix 198.

[00:27:50] Speaker 01:
Mr. Halleck has successfully authored several motions and appeals this year that demonstrate his abilities to research and analyze issues.

[00:27:57] Speaker 01:
He has continued to improve his writing skills during the previous period.

[00:28:01] Speaker 01:
And then on appendix 194, among other things, many of his co-workers and his supervisors have noticed and appreciated his increased efforts to more fully develop his own skills and to help the office.

[00:28:14] Speaker 01:
So you've got that trend line.

[00:28:16] Speaker 01:
You have the mid-year review in July of 2019.

[00:28:20] Speaker 01:
And suddenly, two months later, you have the PIP.

[00:28:22] Speaker 01:
What I was trying to do is to understand.

[00:28:26] Speaker 03:
The PIP is incredibly well documented.

[00:28:28] Speaker 03:
There's a million details in this PIP.

[00:28:31] Speaker 03:
I don't honestly think I've ever seen a PIP that is more thoroughly detailed with all the problems in his performance over those two months.

[00:28:38] Speaker 03:
It's catastrophic.

[00:28:41] Speaker 03:
I don't understand how you're standing there making this argument.

[00:28:43] Speaker 03:
Maybe he was great, but then he fell off a cliff, work-wise.

[00:28:47] Speaker 03:
And they detailed it in exasperative detail, and you're not even really challenging all these individual instances of him showing up unprepared to things, his poor writing.

[00:28:57] Speaker 03:
And it's all documented.

[00:28:59] Speaker 03:
I'm baffled.

[00:29:01] Speaker 01:
Well, Your Honor, first of all, the point here is not to get this court to reweigh that evidence.

[00:29:06] Speaker 01:
My point is that that was a very narrow sliver of what his work involved.

[00:29:14] Speaker 01:
And that- When you perform poorly, you're put on a PIP.

[00:29:18] Speaker 03:
And then they evaluate your work during the PIP period to see if you can improve these specific elements

[00:29:24] Speaker 03:
that they've identified for you clearly are deficient.

[00:29:27] Speaker 03:
In his case, three of his five performance criteria were deficient.

[00:29:31] Speaker 03:
They gave him lots of detail on what he needed to do to make it better.

[00:29:34] Speaker 03:
It didn't get better.

[00:29:36] Speaker 03:
And then they documented in lots of detail how it didn't get better going through each one of those.

[00:29:41] Speaker 03:
So you're given a period of time to improve.

[00:29:43] Speaker 03:
You don't improve.

[00:29:44] Speaker 01:
Your Honor, respectfully, we articulate this, I think, in some detail in our briefs, but there was, our point is twofold, which is why I respectfully disagree with you, is that in the PIP itself,

[00:29:59] Speaker 01:
that there were lots of other things that they excluded that were going on, and this is part of this issue of positive performance.

[00:30:09] Speaker 01:
But even before that, the threshold question that I was trying to understand with my cross-examination here was what this court taught in Santos, which is that a PIP has to be justified.

[00:30:22] Speaker 01:
So the PIP itself cannot justify itself, its notice,

[00:30:29] Speaker 01:
But two months after having this good performance, good review, suddenly he's on a PIP.

[00:30:38] Speaker 01:
That has to be justified.

[00:30:40] Speaker 03:
Have you said the PIP didn't give a lot of examples and details about why it was justified?

[00:30:46] Speaker 01:
No, it didn't.

[00:30:47] Speaker 01:
It was all post-July.

[00:30:50] Speaker 01:
And so, part of what I was trying to figure out,

[00:30:54] Speaker 01:
It was in the time of the pit.

[00:30:57] Speaker 00:
It was in the pit period.

[00:30:58] Speaker 00:
Yeah, I'm sorry.

[00:30:59] Speaker 01:
So the point is that there are two components here.

[00:31:02] Speaker 01:
One is the pit has to be justified.

[00:31:04] Speaker 01:
And you're right, Your Honor.

[00:31:06] Speaker 01:
I guess it's possible for any human being, his performance could suddenly fall off a cliff.

[00:31:12] Speaker 01:
In my experience, that's not likely, but it's a possibility.

[00:31:16] Speaker 01:
But then also the point is

[00:31:20] Speaker 01:
that there was lots of evidence that we tried to put in the record, and some of it got in there, of positive performance by Mr. Halleck.

[00:31:30] Speaker 03:
So anyway, thank you.

[00:31:31] Speaker 03:
I want to thank both counsel to see who was taken under submission.