[00:00:00] Speaker 03:
We have one case on the calendar this morning.

[00:00:03] Speaker 03:
Kevin Jones versus the Merit Systems Protection Law, 2022-17-88, Mr. Perje.

[00:00:13] Speaker 06:
Good morning, Your Honors.

[00:00:14] Speaker 06:
May it please the Court.

[00:00:15] Speaker 06:
This appeal turns on the similarity of two jobs.

[00:00:19] Speaker 06:
The agency-side employment and personnel lawyer job that Petitioner Kevin Jones had at the Agriculture Department,

[00:00:27] Speaker 06:
and the agency-side employment and personnel law job that he had that he transferred to at ATF.

[00:00:33] Speaker 06:
GS-14, same series, same work, same subject matter.

[00:00:36] Speaker 06:
The AJA had a hearing on jurisdictional loan.

[00:00:41] Speaker 02:
Let me ask you a question about standard of review before we get into the details of the case.

[00:00:47] Speaker 02:
What's our standard of review?

[00:00:49] Speaker 02:
as applied to this particular type of case and the particular stage of the proceedings that we have now.

[00:00:57] Speaker 06:
Wonderful.

[00:00:59] Speaker 06:
Obviously, the court has de novo review power of rulings of law in the AJ.

[00:01:05] Speaker 06:
Obviously, you know what happened.

[00:01:06] Speaker 06:
The AJ had a decision.

[00:01:07] Speaker 06:
The decision became final about operation of law.

[00:01:10] Speaker 06:
There was a quorum to go to anyway at the board.

[00:01:13] Speaker 06:
So we're basically here on review of the AJ's decision.

[00:01:16] Speaker 06:
So matters of law, de novo review, matters of fact.

[00:01:20] Speaker 06:
And similarity is, so the cases tell us, a matter of fact.

[00:01:25] Speaker 06:
More deferential review, I would say, a discretion standard.

[00:01:28] Speaker 02:
Substantial evidence?

[00:01:29] Speaker 06:
Substantial evidence is various ways the cases put it, right?

[00:01:32] Speaker 06:
It was supported by substantial evidence.

[00:01:34] Speaker 06:
Product of reasoned decision making.

[00:01:36] Speaker 06:
You see that very much emphasized in the amicus.

[00:01:39] Speaker 02:
But the rule that we typically apply to factual determinations made by an agency is substantial evidence.

[00:01:46] Speaker 06:
Yeah, that's right.

[00:01:47] Speaker 06:
And I think the case here.

[00:01:48] Speaker 02:
And we do agree that that's the right standard for factual determinations where the law has been applied

[00:01:58] Speaker 02:
as you see it consistently with your view as to what the legal principles are.

[00:02:04] Speaker 06:
I do, and I also think substantial evidence was lacking in support of the AJ's decision and plainly present on the other side, and that's why we're here.

[00:02:12] Speaker 02:
Ah, but the plainly present on the other side won't do it, right?

[00:02:16] Speaker 06:
Not alone, correct your honor.

[00:02:17] Speaker 02:
Right, okay.

[00:02:19] Speaker 05:
I'm anxious to hear how there's not substantial evidence for what the AJ said, but just before we get there, do you agree, I take it you agree, that the AJ correctly understood the regulatory definition of similarity and what we said about the definition of similarity in math is?

[00:02:39] Speaker 06:
Honestly, Your Honor, I don't know if the AJ correctly understood that.

[00:02:44] Speaker 06:
All we have is an opinion.

[00:02:46] Speaker 06:
It appears that the opinion was not only not based on substantial evidence, but basically took Ahmed out of the sky and tried to match it, which is the approach to this court, rejected in Mathis.

[00:02:56] Speaker 06:
So I honestly don't know what the AJ understood.

[00:03:00] Speaker 06:
Of course, we have the statute.

[00:03:02] Speaker 06:
The AJ certainly invoked the statute in the same or similar.

[00:03:05] Speaker 06:
7511A1B.

[00:03:06] Speaker 05:
Let me put it this way, is there an error of law that you think you have identified in terms of how the AHA articulated what similar requires?

[00:03:18] Speaker 06:
I do, and it's basic.

[00:03:20] Speaker 06:
If you say that the only comparison you need to make to establish similarity is to, as I say, pick a case out of the air and try to match it by specific duties, you take the ancient, if you will, and thoroughly discredited exact interchangeability approach and try to resurrect it.

[00:03:41] Speaker 06:
And that's exactly what Mathis says we don't do anymore.

[00:03:44] Speaker 06:
So this court is now under Mathis for a long time.

[00:03:46] Speaker 06:
And Mathis tells us to deal with the fundamental character of the jobs, to look at, you know, we have a wonderful list.

[00:03:55] Speaker 05:
So just to be clear, you think on de novo review, we could say that this AJ erred by applying

[00:04:02] Speaker 05:
the exact interchangeability test when she never says anything like that.

[00:04:08] Speaker 05:
Right.

[00:04:09] Speaker 05:
She never said that's what she was doing.

[00:04:12] Speaker 06:
It appears that is what she was doing.

[00:04:14] Speaker 06:
But as I say, honestly, I do not understand the ruling.

[00:04:18] Speaker 06:
So and that's that's

[00:04:21] Speaker 06:
That's a shame.

[00:04:22] Speaker 06:
It's an exception.

[00:04:23] Speaker 06:
I think plenty of AJ opinions are lucid and easily decipherable.

[00:04:27] Speaker 06:
In my opinion, this one is not.

[00:04:29] Speaker 06:
I believe what happened here was the judges took a case out of the air, tried to match the duties, and frankly did so in a disingenuous manner.

[00:04:37] Speaker 06:
I'm sorry.

[00:04:39] Speaker 02:
If I could very quickly return to the standard review issue.

[00:04:44] Speaker 02:
And I don't want to take up a lot of your time on this.

[00:04:48] Speaker 02:
This is a case which is made a little complicated by the fact that the word jurisdiction pops up in two different places.

[00:04:54] Speaker 02:
First jurisdictional question is, has the claim of board jurisdiction been non frivolous for purposes of getting a hearing?

[00:05:08] Speaker 02:
The second question is, if you get over that hurdle, and that's a hurdle which I take it is subject to de novo review.

[00:05:16] Speaker 02:
If you get over that hurdle and you have a hearing, then we're into the situation where the determination is based on, as we talked about previously, conclusions of law and finding in fact substantial evidence.

[00:05:29] Speaker 02:
Now what's confusing in this case is that the AJ initially said that there was not a non-frivolous showing.

[00:05:38] Speaker 02:
that was made in this case.

[00:05:40] Speaker 02:
But she went ahead and had it clear, which is exactly what would have happened had she made a determination that it was a non-frivolous showman.

[00:05:50] Speaker 02:
So should we not take what she did at the end, which is to find that there was no showing that he was an employee in the same substantial job, as being a determination once she had established

[00:06:07] Speaker 02:
that there was a non-frivolous showing.

[00:06:10] Speaker 06:
It's peculiar, Your Honor, isn't it?

[00:06:12] Speaker 06:
I think of it as the non-frivolousness standard is sort of a not unlawyered way to put this.

[00:06:18] Speaker 06:
The difficulty is that there is, I think, a zone between demonstrating that the allegation jurisdiction is present is non-frivolous, and on the other hand, a demonstration that jurisdiction is present.

[00:06:29] Speaker 06:
And it seems to me that what the judge was doing, and what I feel other AJs do, and perhaps the court can clear this up, is that they sometimes conflate too.

[00:06:38] Speaker 02:
I don't think that's a problem here, because in our judgment, jurisdiction was present, but in any event... Well, what I'm trying to get at is do you understand the AJ to have, in effect,

[00:06:50] Speaker 02:
made a determination that there was jurisdiction sufficient to make a determination as to whether he was an employee by a preponderance, which is what she seems to be, as I read it, what she ultimately did, as opposed to saying, well, what she really did was that she said there was not a nonproposal showing.

[00:07:13] Speaker 06:
I cannot tell for sure if ultimately the judge believed, this is not what was said in the opinion, that the allegation was not non-frivolous.

[00:07:23] Speaker 06:
That's how they couch the standard because that's what's in the cases.

[00:07:27] Speaker 06:
I believe the judge was leaping ahead, if you will, advancing to the next stage, which is, is jurisdiction present, taking for a given that the allegation to that effect was not frivolous.

[00:07:39] Speaker 06:
So that's how I come down.

[00:07:41] Speaker 06:
I don't know if it matters.

[00:07:43] Speaker 06:
I am grateful for the court's close attention to this problem.

[00:07:47] Speaker 06:
I hope this clears up some AJ's, as I say, occasional conflations in this area.

[00:07:54] Speaker 05:
Let's come back to substantial evidence.

[00:07:56] Speaker 05:
What fact findings did the A.J.

[00:07:58] Speaker 05:
make that are not supported by substantial evidence, in your view?

[00:08:02] Speaker 06:
The entire raft of factual considerations of similarity was just misguided.

[00:08:08] Speaker 06:
And as to whether it's a question of fact or a question of law, plainly the determination whether the two jobs are similar is a fact question.

[00:08:16] Speaker 06:
But what law you apply to the basic framework to consider those facts, that's a legal question.

[00:08:24] Speaker 06:
And I'm sorry to say, I believe the judge erred previously.

[00:08:27] Speaker 05:
But you stood up to say, and I think this is what we were all interested in, and then we asked you some other important things.

[00:08:33] Speaker 05:
But I think you said we have to apply a substantial evidence standard at some point in our analysis, and that there is not even substantial evidence

[00:08:42] Speaker 05:
on the other side.

[00:08:44] Speaker 05:
So can you give me even an example of a finding that the AJ relied on that's not supported by substantial evidence?

[00:08:51] Speaker 05:
Well, here's one.

[00:08:54] Speaker 06:
The judge hung her hat, and I don't know if one hangs one's hat anymore in this world, but the judge hung her hat on litigation versus non-litigation areas of the duties of Mr. Jones.

[00:09:10] Speaker 06:
But if you read the PD, and I know we're not supposed to go by the PD alone, it's written deliberately to give us what lawyers must do, not just what litigators must do.

[00:09:21] Speaker 06:
It says, mastery of statutes, rigs, presidents.

[00:09:25] Speaker 05:
I'm not sure if I understand how that helps you.

[00:09:28] Speaker 05:
It seems to me either undisputed or there's at least substantial evidence.

[00:09:32] Speaker 05:
for the fact that at the USDA, your client was largely a litigator of discrimination cases, whereas when he moved over to ATF in DOJ, he was largely dealing with disciplinary actions as opposed to discrimination, and he wasn't litigating, he was advising the decision makers at this PRB.

[00:09:53] Speaker 05:
And he did that at both places.

[00:09:55] Speaker 05:
Fine, but is anything I just said not supported by substantial evidence?

[00:10:02] Speaker 06:
I suppose it's a question of emphasis, but in my judgment the emphasis is so misguided as to amount to a flouting of the substantial evidence that was there.

[00:10:14] Speaker 06:
Now the court is asking whether what the AJ said in this case had substantial evidence supporting it.

[00:10:19] Speaker 06:
I think it was insubstantial evidence.

[00:10:21] Speaker 06:
i think she simply twisted the evidence i don't think that's the product of recent recent decision-making nor do i think that that is how you uh... you uh... show that substantial evidence of what you're doing

[00:10:35] Speaker 06:
There's the problem, I think, that Your Honor flagged before informs this, which is I don't think the court really grappled with the substantial evidence problem in the first place.

[00:10:47] Speaker 06:
She just picked the amend case and just tried to match specific duties and got all up in the question of litigation versus non, when in fact the duties are highly similar in fundamental character.

[00:11:03] Speaker 06:
That's a, I think the court could call that a cop-out, meaning a failure to address, a failure to adduce substantial evidence because the use of the evidence that was in the record was frankly so misguided.

[00:11:21] Speaker 02:
One of the points you make in your brief is that both jobs involved employment law as a category.

[00:11:28] Speaker 06:
Assuredly.

[00:11:28] Speaker 02:
But it strikes me that employment law is a very, very broad category.

[00:11:33] Speaker 02:
So if we had, instead of the facts of this case, if we had a case in which one job was being, let's say, a lawyer responsible for age discrimination in employment, and then the second job involved ERISA.

[00:11:52] Speaker 02:
And in one case, it was giving advice.

[00:11:55] Speaker 02:
The other case, it was litigating ERISA cases.

[00:11:57] Speaker 02:
That sounds like a big difference to me, even though both would come under the umbrella of employment law.

[00:12:02] Speaker 06:
Sure.

[00:12:03] Speaker 06:
It's a little like the single subject rule in state constitutional law.

[00:12:05] Speaker 06:
The subject is law.

[00:12:06] Speaker 06:
Of course, that's not good enough.

[00:12:08] Speaker 06:
But if we say, I mean, there's a whole range of hypotheticals we could imagine.

[00:12:12] Speaker 06:
And I've been sitting in my office imagining dozens of them.

[00:12:15] Speaker 06:
Let's just take your owner's iPhone.

[00:12:18] Speaker 06:
If we look at, let's say, a completely different area of the law, and we have cases like that, right?

[00:12:24] Speaker 06:
The person went from a SSDI reviewer to a trademark reviewer.

[00:12:28] Speaker 06:
That's not similar because the subject matter is fundamentally different.

[00:12:33] Speaker 06:
If you look at agency-side employment and personnel law, which is what he did at

[00:12:37] Speaker 06:
AG and agency-side employment and personnel law, which he did at ATF for a short while until he was, as you know, until he was terminated.

[00:12:45] Speaker 06:
Those are far closer.

[00:12:48] Speaker 06:
than the completely different subject matter areas of the law that you're on are positive.

[00:12:53] Speaker 02:
Discrimination versus discipline seems to me to be a pretty significant difference.

[00:12:59] Speaker 02:
I would see a whole lot of room for overlap, except in cases where, for example, a claim is made that the discipline was predicated on discrimination.

[00:13:08] Speaker 06:
Well, that actually is bigger than just a blip.

[00:13:12] Speaker 06:
I think, for example, in the MSPB system, the employees set up affirmative defenses of discrimination.

[00:13:19] Speaker 06:
In the EEOC system, they allege discrimination.

[00:13:22] Speaker 06:
You still have to decide if discrimination was present on the facts and under the law that you apply in both of these contexts.

[00:13:29] Speaker 06:
Discipline of an employee is often about performance.

[00:13:35] Speaker 06:
Performance is exactly what the facts are that an agency-side employment lawyer is going to be focusing on and deeply in case after case.

[00:13:43] Speaker 06:
That's what the playbook says to do in both of these situations about job performance.

[00:13:48] Speaker 06:
So the job of somebody in Kevin Jones' situation in both of these positions is to get deep into the facts.

[00:13:56] Speaker 06:
find out what the performance problems were, stress them, show to the court that either the AJA that discrimination is no defense or that discrimination is not present because a legitimate nondiscriminatory reason was put forward.

[00:14:12] Speaker 06:
And then in the discipline context, you show how the facts demonstrate that discipline is warranted based on misperformance or misconduct.

[00:14:22] Speaker 06:
I don't think those deep factual inquiries are that different.

[00:14:26] Speaker 06:
If you look at the differences that this court has talked about where dissimilarity has been found,

[00:14:33] Speaker 06:
Frankly, they're an order of magnitude farther over.

[00:14:36] Speaker 06:
You can't just say they're different.

[00:14:39] Speaker 06:
You have to calibrate, in some fashion, how different.

[00:14:43] Speaker 06:
The court gives us contours, although it doesn't give us millimeter by millimeter continuum.

[00:14:48] Speaker 06:
And that's because judging is human.

[00:14:50] Speaker 06:
But I think the cases are very clear.

[00:14:52] Speaker 06:
Mathis, and Korodeski, and Davis.

[00:14:54] Speaker 06:
It just shows how different things have to be.

[00:14:57] Speaker 06:
Because in those cases, differences are considerable.

[00:14:59] Speaker 04:
they were they were not held nearly sufficient to

[00:15:29] Speaker 04:
Yes.

[00:15:35] Speaker 02:
Could you straighten me out about what exactly the AJ was doing in this case when she started out by saying that there was not a non-frivolous showing.

[00:15:49] Speaker 02:
But nonetheless, she had a hearing, and she reached a conclusion which seemed like the kind of conclusion that one would reach after having found that there was.

[00:15:58] Speaker 02:
a non-frivolous allegation, which do you think is the position that she ultimately took on that issue?

[00:16:05] Speaker 01:
Your Honor, I believe that the AJ found that she, in effect, she did find that there was a non-frivolous allegation.

[00:16:14] Speaker 02:
So that was just a false step at the outset?

[00:16:19] Speaker 01:
Perhaps just an error, a stray remark.

[00:16:23] Speaker 01:
But when we look at the substance of the initial decision,

[00:16:27] Speaker 01:
Throughout, the AJ discusses the evidence very fulsomely.

[00:16:33] Speaker 01:
And she also makes findings and states throughout, I find this, I find that.

[00:16:40] Speaker 01:
And I think in that case, she's

[00:16:47] Speaker 01:
clearly moved past the non-crivelous allegation stage.

[00:16:50] Speaker 01:
She has gone to whether this appellant met his burden of establishing jurisdiction by preponderant evidence.

[00:16:58] Speaker 02:
And as to the standard of review, what do you think is the proper standard of review for us, given the position you've taken that she has actually made the determination of non-employee status?

[00:17:10] Speaker 01:
Yes, Your Honor.

[00:17:11] Speaker 01:
The standard of review is, well, of course, a jurisdictional question.

[00:17:15] Speaker 01:
It's de novo.

[00:17:17] Speaker 01:
It's substantial evidence in this case, because the jurisdictional issue turns so much on the particular facts of the case.

[00:17:25] Speaker 01:
And that's consistent with Mathis, in which this court stated that even current continuous service is an issue of fact.

[00:17:35] Speaker 01:
Your Honor.

[00:17:36] Speaker 01:
Substantial evidence supports the AJ's finding that Appellant's position at the USDA litigating and advising on EEO cases was not similar in nature and character to his role at the ATF, assisting the agency with adjudicating employee discipline.

[00:17:53] Speaker 01:
The nature and character of Appellant's positions at the USDA and the ATF are dissimilar in two main ways.

[00:18:01] Speaker 01:
First, substantial evidence established that Appellant's two jobs were in distinct legal fields, civil rights law at the USDA and civil service and procurement law at the ATF.

[00:18:15] Speaker 01:
Second, Appellant's jobs had different duties and required different skills and abilities, because at USDA, he litigated EEO cases, while at ATF, he did not litigate at all.

[00:18:27] Speaker 05:
It seems that Mr. Jones had the skills and abilities for both jobs without requiring significant training.

[00:18:34] Speaker 05:
Is that relevant to the analysis?

[00:18:37] Speaker 05:
That is what he himself could do without further training or is what's relevant that he had to use different parts of his maybe broad level of skills in the two different positions?

[00:18:49] Speaker 01:
Well, Your Honor, by regulation, under OPM's regulation, it's the latter, that two positions are similar when the duties performed are similar in nature and character and require substantially the same or similar qualifications.

[00:19:04] Speaker 01:
But further, the MSBB would respectfully disagree that Mr. Jones had the knowledge, skills, and abilities to perform all the duties in his ATF position.

[00:19:16] Speaker 01:
In fact,

[00:19:17] Speaker 01:
It was, we would submit that the respondent effectively conceded that he did not have the knowledge, skills, and abilities to do contracts law.

[00:19:27] Speaker 01:
He testified that contracts is a specialized area, and that's it.

[00:19:32] Speaker 01:
page 247, and that he had not practiced contract law in his federal employment, specifically at the USDA.

[00:19:39] Speaker 01:
He said specifically that it was not consistent with my career path.

[00:19:44] Speaker 01:
That's at page 247.

[00:19:46] Speaker 01:
And that no one that I know of, nor would I, have said that I ever had experience as a contract law attorney.

[00:19:54] Speaker 02:
Well, how much should we attest to the contract law expertise aspect

[00:19:59] Speaker 02:
of the case because I didn't think that the AJ would rely on that aspect of the second job, right?

[00:20:07] Speaker 01:
So that is correct, Your Honor, but the AJ did make factual findings here.

[00:20:13] Speaker 01:
She made findings that

[00:20:16] Speaker 01:
this appellant did not have the contract law experience that the agency believed that he had.

[00:20:23] Speaker 01:
She also made a finding that contracts law was one of his actual duties.

[00:20:29] Speaker 02:
What's the strongest statement that she made in her decision that bears on the contract law issue?

[00:20:39] Speaker 02:
Because she focused, as I read it, almost entirely on

[00:20:45] Speaker 02:
the difference between the substance of the discrimination in one case and discipline in the other.

[00:20:54] Speaker 02:
And I didn't see very much on contract.

[00:20:56] Speaker 02:
What's the part of her opinion that I should look to to see the extent to which she was relying on contract law?

[00:21:04] Speaker 01:
Yes, Your Honor.

[00:21:08] Speaker 01:
We would submit that simply her findings that he lacked that experience, that he did not have the experience that the agency believed that he did.

[00:21:19] Speaker 01:
And also that it was one of his actual duties.

[00:21:22] Speaker 05:
Yeah, where does the board say it was one of his actual duties?

[00:21:26] Speaker 05:
Where does the AJ make a finding that contract work is one of his duties?

[00:21:33] Speaker 01:
Yes, one moment, Your Honor.

[00:21:34] Speaker 05:
Thank you.

[00:21:47] Speaker 01:
Your Honor, it's on Appendix 7 where she said that Williams, who was appellant supervisor and whose testimony she credited in its entirety, testified that the appellant was designated as the alternate contracts attorney and would be expected to perform duties related to the agency's contracts matter

[00:22:09] Speaker 01:
such as bid protests in that role.

[00:22:11] Speaker 01:
However, and the AJ did go on to say that it is undisputed that he did not actually perform any such duties during his ATF tenure.

[00:22:19] Speaker 01:
And that is.

[00:22:19] Speaker 02:
So I'm suggesting that he was asked to but refused or stated that he couldn't do it, right?

[00:22:28] Speaker 01:
Well.

[00:22:28] Speaker 02:
He just says that during the brief time he was there, it didn't so happen that he had any of that kind of work to do, right?

[00:22:36] Speaker 01:
Well, Your Honor.

[00:22:37] Speaker 01:
He did.

[00:22:38] Speaker 01:
His testimony was that he was directed, and the testimony of Ms.

[00:22:44] Speaker 01:
Williams was that he was directed to meet with the outgoing contracts attorney, and that he did begin to get some contracts and start to review them, but that he really wasn't prepared to do so.

[00:22:57] Speaker 04:
But he wasn't removed for lack of performance.

[00:23:01] Speaker 04:
For performance, was he?

[00:23:03] Speaker 01:
No, Your Honor, the ATF's position was that he was, well, they proposed or informed him that they would propose his removal because of his lack of candor about his experience as they perceived it.

[00:23:17] Speaker 01:
And he then, of course, resigned.

[00:23:20] Speaker 01:
But in this case,

[00:23:22] Speaker 01:
And it's not just the contracts piece.

[00:23:25] Speaker 01:
It's also, frankly, the employment one.

[00:23:28] Speaker 02:
Well, let me pursue the contract a bit.

[00:23:30] Speaker 02:
Yes.

[00:23:30] Speaker 02:
Is this it, that one paragraph, two sentences at page seven of the appendix with respect to the contractor?

[00:23:38] Speaker 02:
Did the AJ say anything else about the contract problem?

[00:23:43] Speaker 01:
No, Your Honor, the AJ did not say anything else about the contracts issue.

[00:23:49] Speaker 01:
But we believe that this court may properly consider it under Chenery, Killip.

[00:23:55] Speaker 01:
Because to make a finding that contracts law was one of his actual duties, and that he did not get the knowledge, skills, and abilities to do that in his previous position,

[00:24:10] Speaker 01:
That doesn't require this court to make any additional factual findings.

[00:24:16] Speaker 01:
It was effectively undisputed and conceded, in fact, by the appellant throughout his testimony.

[00:24:24] Speaker 02:
Well, perhaps so.

[00:24:25] Speaker 02:
But what's missing, it seemed to me, is that having the fact finder making a finding that that was

[00:24:33] Speaker 02:
one of the factors that bore on the question of whether this was the same job or similar.

[00:24:39] Speaker 02:
And that fact finding is not anywhere in her opinion, as far as I can see.

[00:24:45] Speaker 01:
OK.

[00:24:45] Speaker 01:
Yes, Your Honor.

[00:24:46] Speaker 01:
And we would submit that there is ample evidence, and certainly substantial evidence of record,

[00:24:58] Speaker 01:
to even without the contracts law piece to support the administrative judges finding that these two positions were not the same or similar.

[00:25:10] Speaker 05:
evaluate a case where it was attorneys that were involved in the two positions, and weigh in on whether the similarity analysis should take place at the level of employment law, or more refinitely, discrimination law versus disciplinary law, or doing litigation versus doing advice.

[00:25:32] Speaker 05:
Have we had to confront that question here at the Federal Circuit?

[00:25:36] Speaker 01:
No, Your Honor.

[00:25:36] Speaker 01:
This Court has not had to.

[00:25:41] Speaker 01:
Yes, to make a ruling on whether two attorney advisor positions are the same or similar, where there are differences between them as there were here.

[00:25:50] Speaker 01:
But the board submits that this court's rulings in cases such as Holloman, which involved two different law enforcement positions in different fields or in amend

[00:26:05] Speaker 01:
Again, where we have two law enforcement officers positions where the appellant was expected to enforce different laws and to have knowledge of different legal areas, we would submit that those are germane and could properly inform the court's analysis.

[00:26:26] Speaker 05:
There was, at the time of the briefing, there was a jurisdictional question about our jurisdiction and whether this is a mixed case or not.

[00:26:33] Speaker 05:
Is the government now satisfied that he has properly abandoned his discrimination claims?

[00:26:40] Speaker 01:
Your Honor, yes.

[00:26:41] Speaker 01:
We are satisfied.

[00:26:42] Speaker 01:
OK.

[00:26:42] Speaker 02:
Thank you.

[00:26:43] Speaker 02:
Let me ask you another question dealing with an issue that isn't squarely addressed.

[00:26:47] Speaker 02:
Well, I guess the discrimination issue was squarely addressed.

[00:26:52] Speaker 02:
But Mr. Sands had shifted.

[00:26:54] Speaker 02:
But another question that struck me, looking at the

[00:26:56] Speaker 02:
at the materials is normally in these kinds of cases where there's a resignation, there's an issue as to whether the resignation was voluntary or involuntary.

[00:27:07] Speaker 02:
And that hasn't been raised here as far as I can see.

[00:27:10] Speaker 02:
Correct?

[00:27:11] Speaker 02:
In other words, you're not contending that that's the second ground for saying that the board didn't have jurisdiction?

[00:27:16] Speaker 01:
That's correct, Your Honor.

[00:27:17] Speaker 02:
So given the fact that he was put under a very tight time limit, like one day or something like that, and he chose to resign,

[00:27:26] Speaker 02:
That would be, well, you're not contesting that his resignation was voluntary under those circumstances, right?

[00:27:35] Speaker 01:
Your Honor, the board is not, well, for one thing, the agent has not made findings on the issue of whether his resignation was voluntary or involuntary.

[00:27:46] Speaker 01:
And that's because the appellant did not meet his burden of getting past the first threshold jurisdictional issue, which is whether he's even an employee.

[00:27:56] Speaker 01:
And so with board appeal rights.

[00:28:00] Speaker 02:
Did you argue that before the AJ, the involuntary

[00:28:05] Speaker 02:
slash voluntary resignation issue?

[00:28:07] Speaker 01:
Your Honor, I represent the MSPB only.

[00:28:11] Speaker 01:
But did the agency argue that?

[00:28:13] Speaker 01:
But the agency did argue that, yes.

[00:28:16] Speaker 01:
Yes, they argued that issue.

[00:28:17] Speaker 01:
But under the board's case law, an AJ is not to make a finding on involuntary or voluntariness of a resignation if the appellant can't show that they're an employee.

[00:28:30] Speaker 01:
And for example, that was held in the Clark case, Clark versus Department of Commerce.

[00:28:35] Speaker 01:
I didn't agree.

[00:28:38] Speaker 01:
Thank you.

[00:28:39] Speaker 01:
Yes.

[00:28:40] Speaker 01:
So, Your Honor, to my first point on the difference between the qualifications, the board has ruled that two attorney positions in different legal fields are not in the same line of work.

[00:28:52] Speaker 01:
In the Clark case, the appellant transitioned from one attorney advisor position, adjudicating disability claims, to another, handling trademark applications.

[00:29:01] Speaker 01:
And the board reasoned that while there were similarities in the broad sense, for example, that in both positions the appellant had to draft final agency decisions, and this is a quote, even positions requiring some similar skills may be dissimilar.

[00:29:18] Speaker 01:
Whereas here, the work is performed in substantively different fields.

[00:29:22] Speaker 01:
And that appears in paragraph 13 of the opinion.

[00:29:26] Speaker 01:
And we submit that that reasoning is consistent with the source rulings in cases like Holliman and Amend.

[00:29:33] Speaker 01:
And so similar to the Clark case, Appellant's jobs here were dissimilar because he practiced civil rights law at the USDA and Title V civil service law and contracts law work at the ATF.

[00:29:43] Speaker 01:
The administrative judge here found that civil service law and civil rights law are distinct subject matter areas that are based on different

[00:29:52] Speaker 01:
the relevant legal principles.

[00:29:54] Speaker 05:
Can I take you back to the contract point again?

[00:29:56] Speaker 05:
At the gray brief at nineteen, Mr. Jones argues that the record evidence shows that he was never questioned about his contract law experience during the selection process and that the attorney hired to replace him lacked any contract law experience or education.

[00:30:15] Speaker 05:
Does the government concede or does the board concede that that is the record?

[00:30:21] Speaker 00:
Yes, Your Honor, I'm not aware.

[00:30:27] Speaker 05:
And should that not...

[00:30:30] Speaker 05:
make us, I suppose, more reluctant to try to start making fact findings about contract law being part of his actual duties when I think you've conceded that AJ made no findings on that point and now you've conceded he was never asked about his contract law experience in the selection process and the person who replaced him had no contract law experience.

[00:30:51] Speaker 01:
Oh, no, Your Honor.

[00:30:52] Speaker 01:
I wasn't conceding that he wasn't asked about contracts.

[00:30:55] Speaker 01:
I was conceding about the experience of the second person.

[00:31:00] Speaker 05:
Oh, I'm sorry.

[00:31:01] Speaker 05:
It was a two-part question.

[00:31:03] Speaker 05:
My apology.

[00:31:04] Speaker 05:
OK, so you concede the second part.

[00:31:05] Speaker 05:
How about the first part of what they say at A-19?

[00:31:10] Speaker 05:
Record evidence shows that Jones was never questioned about his contract law experience during the selection process.

[00:31:16] Speaker 01:
Oh, I apologize.

[00:31:18] Speaker 01:
Your Honor, I see my time has run.

[00:31:19] Speaker 01:
May I answer your question and then quickly conclude?

[00:31:23] Speaker 01:
So in this case, the details of the interview process, whether Mr. Jones was forthcoming, whether he was prepared to be a contracts attorney, the real issues in this case and the fundamental issue is whether the two positions

[00:31:44] Speaker 01:
His ATF attorney advisor position and his USDA position litigating EEO cases were substantially similar, whether the duties performed were similar in nature and character and required substantially the same or similar qualifications.

[00:32:00] Speaker 01:
And so whether we believe that the looking at the two positions,

[00:32:13] Speaker 01:
Just in making a comparison of the duties in each, I think the contracts piece is relevant.

[00:32:21] Speaker 01:
And the experience of the next person or his experience or what he said in the interview doesn't really weigh on that, on the differences between the two positions.

[00:32:36] Speaker 01:
Your Honor, for the foregoing reasons, we respectfully request that this court affirm the final decision of the MSPB

[00:32:51] Speaker 06:
Thank you, Your Honor.

[00:32:54] Speaker 06:
Just going to your question, Your Honor, about the role of this extra contract, how does it relate?

[00:33:05] Speaker 06:
There are three reasons, I don't think I got this out there, three reasons why this falls short.

[00:33:10] Speaker 06:
This situation, his ATF job falls short of the actually performed standard that the cases give us.

[00:33:18] Speaker 06:
Here's the three words, peripheral,

[00:33:21] Speaker 06:
Occasional and contingent.

[00:33:25] Speaker 06:
Peripheral and contingent.

[00:33:27] Speaker 06:
Peripheral because he didn't have this anywhere near the core of his job duties.

[00:33:33] Speaker 06:
This extra contract little supposed extra duty.

[00:33:38] Speaker 06:
Occasional because he'd only have to do it every once in a while.

[00:33:40] Speaker 06:
It's like being asked to take the shredder out every three weeks.

[00:33:43] Speaker 06:
It's occasional.

[00:33:44] Speaker 06:
And contingent because he wasn't going to have to do it at all.

[00:33:48] Speaker 06:
He thought he was the backup.

[00:33:50] Speaker 06:
And it's reasonable to expect from the evidence that he would only be the alternate to the next person.

[00:33:58] Speaker 06:
And by the way, the record tells us that the next person hired after him had no contract experience at all.

[00:34:05] Speaker 06:
But the difficulty we have with the HA is even before that, because the HA said,

[00:34:11] Speaker 06:
These were not duties actually performed, so it's not part of the similarity equation.

[00:34:16] Speaker 06:
If the judges at this court want to examine that, they would have to make a new finding, a factual finding, on no new evidence that contract law was a great big part of the job, which it simply was not.

[00:34:30] Speaker 02:
The evidence would not support that.

[00:34:33] Speaker 02:
Where does she say that's not part of her

[00:34:35] Speaker 06:
Um, contract law is not part of what she says is not actually performed.

[00:34:43] Speaker 05:
I have an insight for that.

[00:34:45] Speaker 05:
Is it anything more than that one paragraph at A7 that we talked about with your friend on the other side?

[00:34:50] Speaker 06:
Yeah, I want to say it's, well, if you're asking about the

[00:34:54] Speaker 06:
the AJ's opinion specifically, where the AJ actually says there was no, that the contract duties were not actually performed.

[00:35:06] Speaker 02:
I want to say that was on page 10 and 11.

[00:35:12] Speaker 02:
that the entire issue of whether he was qualified to do contact work or not is immaterial to the inquiry of St.

[00:35:21] Speaker 02:
Simon.

[00:35:22] Speaker 06:
I think that's what the judge said, and she said it because she was... Well, she can have it on page 7 of the AJ's opinion.

[00:35:30] Speaker 06:
undisputed that didn't actually perform, AJ opinion at seven, and then it says, therefore, there's no, you simply don't, you don't include this little contingent, peripheral, and occasional contract law bit in the similarity equation.

[00:35:54] Speaker 02:
Where's the price where she said that?

[00:35:55] Speaker 06:
Which is you don't include it in the similarity equation.

[00:35:58] Speaker 02:
Right, that's what I'm looking for.

[00:36:00] Speaker 05:
Is that your spin because it never comes up again in her opinion, or do you see in her opinion where she does the therefore?

[00:36:09] Speaker 06:
I thought there was a place where she says it's not simply, it's not part of the similarity equation at all.

[00:36:15] Speaker 06:
But if I don't find language to that effect specific, you know, explicitly in the opinion, I think it's fair to say it's plainly what she did.

[00:36:23] Speaker 06:
not actually performed, the cases tell her not to consider it, so she didn't.

[00:36:27] Speaker 06:
Of course, the MSPB now wants it both ways.

[00:36:31] Speaker 06:
They want to quarrel with the finding about contract law, but they also want to affirm that two dissimilar jobs are similar.

[00:36:41] Speaker 06:
By the way, just looking at Clark, just so we don't have to just say, similar, they're similar.

[00:36:46] Speaker 06:
Well, Your Honor, they're similar.

[00:36:48] Speaker 06:
That's not enough.

[00:36:49] Speaker 06:
Look at Clark.

[00:36:51] Speaker 06:
This is legal reasoning 101, excuse me, that the HH did not perform.

[00:36:55] Speaker 06:
Clark required seven weeks of mandatory training.