[00:00:00] Speaker 01:
morning.

[00:00:00] Speaker 01:
We're very excited to be here at Stanford today to hear arguments.

[00:00:05] Speaker 01:
Our first case is going to be 23-1160 Knox versus D. O. J. Mr Burns.

[00:00:17] Speaker 03:
May it please the court.

[00:00:19] Speaker 03:
I will say this is the first time I've ever been admitted to Stanford, so.

[00:00:26] Speaker 03:
You too.

[00:00:27] Speaker 01:
They may not keep you.

[00:00:28] Speaker 03:
There was some hint.

[00:00:31] Speaker 03:
So the bottom line in this case is we agree with one line in the judge's opinion, the AJ's opinion, which is he says this case is really about the timing of promotions

[00:00:41] Speaker 03:
and within grade increases.

[00:00:44] Speaker 03:
In this particular case, the court, the administrative judge, after the government, after it litigated the matter for four years, suddenly conceded our central point, which is that the within grade increase that my client was entitled to was withheld because of the erroneous assumption that he was on regularly versus leave without pay US.

[00:01:04] Speaker 01:
OK, if you don't mind, and I promise that we will not cut you off when you have arguments you want to make, but we do have this room full of students.

[00:01:09] Speaker 01:
So let's just, for a second, just put a little context on this case.

[00:01:13] Speaker 01:
Oh, certainly.

[00:01:13] Speaker 01:
I know that you know it, you know it, but they don't.

[00:01:16] Speaker 01:
So just give them a little bit of context.

[00:01:17] Speaker 03:
This is a military guy, right?

[00:01:20] Speaker 03:
Tony Knox was a Drug Enforcement Administration special agent.

[00:01:24] Speaker 03:
And the special agents of the Drug Enforcement Administration have a promotional track.

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after so many years within grade in any particular grade of the federal service, they're entitled to apply for a promotion.

[00:01:35] Speaker 01:
Certain grades up the grade... Well, just to be clear, so when you're in this position, your within grade step increases are automatic, right?

[00:01:44] Speaker 01:
That is correct.

[00:01:45] Speaker 01:
So from one year to the next, or sometimes they're spaced out by two years, you automatically get this little mini bump in your pay no matter what.

[00:01:51] Speaker 01:
And then there's a promotion that you're eligible for and you're able to apply for it after a certain amount of time in service.

[00:01:59] Speaker 01:
But it's not guaranteed, correct?

[00:02:01] Speaker 01:
You get the grade increases automatically.

[00:02:04] Speaker 01:
You don't necessarily get the promotion automatically.

[00:02:07] Speaker 03:
That is true.

[00:02:08] Speaker 03:
And one of the central issues in this case is the administrative judge's interpretation of reasonable certainty as a requirement of automatic promotion.

[00:02:18] Speaker 03:
And so what happened here is Mr. Knox was deployed for Operation Iraqi Freedom.

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And he served honorably.

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He was a helicopter pilot.

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He was in combat.

[00:02:28] Speaker 01:
And there's a statute, USERA, that indicates that when a military gentleman or service woman is deployed, they should not be set back in their government career by virtue of their deployment in any way.

[00:02:41] Speaker 01:
Correct?

[00:02:42] Speaker 03:
Is that a non-legal version of it?

[00:02:44] Speaker 01:
That is correct.

[00:02:44] Speaker 03:
And it's also part of a statutory scheme.

[00:02:46] Speaker 03:
And there's a greater issue, I think, that is not reflected in some of the briefs.

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This group here.

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is in a volunteer army situation, a volunteer military service situation.

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The Uniformed Services Employment and Reemployment Statute, this circuit has repeatedly used, has its greatest application to reservists who are called up for duty to support active duty operations overseas for wars,

[00:03:09] Speaker 03:
for crises that we face, and we face many.

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And so Congress repeatedly has said, we want to make sure that military members who are deployed for active duty services, the employer's obligation is you ought to treat them as if they never left.

[00:03:26] Speaker 03:
You ought to treat them the exact same way as if they stayed.

[00:03:29] Speaker 01:
And so your argument here, now getting to the meat of your legal argument, why is it that this particular employee, Mr. Knox, this

[00:03:38] Speaker 01:
military member, why would he have necessarily gotten this promotion if he had been able to apply for it at the time that you suggested, I think February 2004.

[00:03:53] Speaker 01:
What caused him not to be able to apply for it, and what makes you think it's so clear he would have gotten it that we can be reasonably certain he would have gotten it?

[00:04:02] Speaker 03:
There are three aspects to this.

[00:04:03] Speaker 03:
The first is that there were two, quote, the judge calls them mistakes.

[00:04:08] Speaker 03:
I suppose discrimination is a form of mistake, according to this judge, and I take exception to that.

[00:04:13] Speaker 03:
What happened was while he was deployed, the time he was deployed for a portion of it was treated as if he was on regular leave.

[00:04:21] Speaker 01:
But the problem is you said discrimination, but there is testimony in this record that it was just a mistake.

[00:04:27] Speaker 01:
They just made a mistake.

[00:04:29] Speaker 03:
Discrimination is a mistake.

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Violations are wrong.

[00:04:31] Speaker 01:
But not all mistakes are discrimination.

[00:04:33] Speaker 03:
No, but the mistake was based upon a calculation directly related to his military service.

[00:04:40] Speaker 01:
They just miscalculated.

[00:04:41] Speaker 01:
There's testimony in the record.

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They just miscalculated the dates, and they didn't process it in a timely fashion like they should have.

[00:04:47] Speaker 01:
Discrimination is when they do something with a sense of intent, right?

[00:04:51] Speaker 03:
No, not on a re-employment benefit.

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The re-employment benefit is granted because of the military service.

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So the denial of the benefit of the within-grade increase, as even the AJ found in the government conceded, was a violation of USERRA.

[00:05:06] Speaker 01:
It was not discrimination necessary.

[00:05:07] Speaker 03:
Well, but a reemployment benefit.

[00:05:10] Speaker 03:
The denial is really a violation of the statute, sine qua non.

[00:05:14] Speaker 01:
I know, but you're trying to equate it.

[00:05:15] Speaker 01:
You're trying to make it seem like every time there's a mistake that is corrected, it is automatically discrimination.

[00:05:22] Speaker 03:
It's not automatically discrimination.

[00:05:23] Speaker 03:
This mistake not only wasn't corrected, it was compounded.

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The agency didn't correct this mistake until two and a half years of litigation.

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16 years later, the agency was given every opportunity to correct it in a timely fashion because my client actually complained about it to his supervisor.

[00:05:37] Speaker 00:
Setting their discrimination aside, you really don't need to show that.

[00:05:41] Speaker 00:
That's correct.

[00:05:42] Speaker 00:
Right?

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You just need to show that it's reasonably certain.

[00:05:45] Speaker 00:
Absolutely.

[00:05:45] Speaker 00:
So the question was, how can you show that it's reasonably certain that he would have had that increase in grades?

[00:05:52] Speaker 03:
Statistical evidence and actual evidence.

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And let's do the statistical evidence first.

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There are a lot of figures shown around.

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But if you look at our appendix, our brief to the court, to the administrative judge below, it said, the agency actually had the records to produce on its promotions.

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There were 1,386 special agents considered promotion to a GS-13 serving the three-year period.

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Of those, 1,366 were promoted.

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The only 20 that weren't had disciplinary issues or insufficient time in grade.

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Our client had no disciplinary history.

[00:06:28] Speaker 00:
What about the response that maybe as of February 2004, there would have been a little bit, not a suspension, but some foresight as to that a suspension of these promotions was coming down the line.

[00:06:44] Speaker 00:
And so it might not have been reasonably certain.

[00:06:47] Speaker 03:
Well, but it was reasonably certain, because even after the February date, all his supervisors put in for his promotion.

[00:06:55] Speaker 03:
And here's where I want to just shift a little bit.

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What is the time period?

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Like, from when somebody puts in for, like, how far in advance of February?

[00:07:02] Speaker 00:
Is there any evidence in the record of how far in advance of February had this occurred at the time that it was supposed to, that the supervisors would have put in the paperwork?

[00:07:13] Speaker 03:
Yeah, he put in for it in November.

[00:07:15] Speaker 03:
And what happened is, under the DEA's policy, they're supposed to process that within 30 days for reasons we don't know, because we never got discovery.

[00:07:23] Speaker 03:
We don't know why that wasn't done.

[00:07:25] Speaker 03:
It wasn't done.

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The agency, the supervisors even, there's a memo where the supervisor says, oh, we've got to move this along.

[00:07:32] Speaker 03:
I'm not sure why this didn't happen.

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And so what he does is he gets the approvals.

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All those approvals are in place before the, quote, policy change, which frankly isn't even implemented for another year.

[00:07:43] Speaker 03:
All those are in place.

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He has met all the criteria for promotion.

[00:07:47] Speaker 01:
Can I ask a question?

[00:07:48] Speaker 01:
One of the things that I thought you did a really good job of is pointing out that the board in this case basically never used the words reasonable certainty.

[00:07:56] Speaker 01:
No.

[00:07:57] Speaker 01:
Is it your argument to us

[00:07:59] Speaker 01:
that the board basically applied too strict of a standard to your client and required basically that they decided that anything discretionary, if there's any discretionary component to it at all, it can never be reasonably certain.

[00:08:12] Speaker 01:
Is that the position?

[00:08:13] Speaker 01:
That is correct.

[00:08:14] Speaker 03:
They read the reasonableness out of it.

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And what they did was they created a loophole that this court has foreclosed.

[00:08:19] Speaker 03:
There's a reason for reasonable certainty.

[00:08:22] Speaker 03:
If an employer could just say any entitlement or benefit that you might get is discretionary, and we just decided not to give it to you, that would eradicate the underlying protection of the escalator clause itself.

[00:08:35] Speaker 03:
The escalator clause, for those who don't know, is the thing that protects you.

[00:08:38] Speaker 03:
Well, should we?

[00:08:38] Speaker 03:
I'm sorry.

[00:08:39] Speaker 03:
Go ahead.

[00:08:39] Speaker 01:
Oh, just one last thing.

[00:08:41] Speaker 01:
I'll for sure stand down.

[00:08:44] Speaker 01:
The board, in this instance, didn't apply the correct standard, and I didn't see the word reasonable certain in their opinion.

[00:08:52] Speaker 01:
So I'm kind of on your side on this one.

[00:08:54] Speaker 01:
But if they didn't apply the correct standard, isn't the right answer for us as an appellate court to send this case back to them and say, re-evaluate it under the correct standard?

[00:09:04] Speaker 01:
Because I think you're sort of asking us to do that, and I don't really do fact finding.

[00:09:09] Speaker 01:
That's not my thing.

[00:09:10] Speaker 03:
No.

[00:09:11] Speaker 03:
But I think the analysis is this.

[00:09:15] Speaker 03:
The government conceded a couple of things.

[00:09:16] Speaker 03:
It conceded that the original denial of the within grade increase was due to his military service, a misapplication.

[00:09:23] Speaker 04:
No, that's not quite correct.

[00:09:25] Speaker 04:
They said that there was an administrative error.

[00:09:28] Speaker 04:
No.

[00:09:28] Speaker 04:
There was a delay in the within grade increase.

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And that there was no link between that two month delay

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and Mr. Knox's 12-month military service.

[00:09:38] Speaker 03:
The administrative judge said that.

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And one of the issues we had on discovery is what evidence.

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He doesn't cite a single brief, a single statement, a single affidavit, a single case, anything in the record.

[00:09:50] Speaker 03:
It came about in his head as a get out of jail free card.

[00:09:54] Speaker 01:
So are you suggesting then, in response to Judge Hunt's question, that there is no evidence in the record to support that particular fact finding?

[00:10:02] Speaker ?:
None.

[00:10:03] Speaker 04:
There was no.

[00:10:04] Speaker 04:
Go ahead.

[00:10:05] Speaker 04:
Just to organize this argument, now we're going back to the within grade increase in whether there was a discriminatory intent against the military service.

[00:10:14] Speaker 04:
That's a separate question from this reasonable certainty issue.

[00:10:18] Speaker 04:
We would have been reasonably certain that Mr. Knox would have received the GS13 promotion, but for the military service.

[00:10:26] Speaker 04:
And so I understand your point about how the board here did not

[00:10:32] Speaker 04:
look through this fact pattern using the reasonable certainty standard.

[00:10:39] Speaker 04:
But we do have this case called Hayden.

[00:10:42] Speaker 04:
Yes.

[00:10:42] Speaker 04:
And that fact pattern looks very similar to Mr. Knox's fact pattern, where in Mr. Hayden's case, he was seeking a promotion.

[00:10:51] Speaker 04:
He was denied that promotion.

[00:10:53] Speaker 04:
He had military service.

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He had an excellent performance record.

[00:10:59] Speaker 04:
There was a very, very high promotion rate.

[00:11:02] Speaker 04:
for people similarly situated.

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And the board concluded that it would not have been reasonable certainty.

[00:11:10] Speaker 04:
We've gotten the promotion and this court confirmed.

[00:11:13] Speaker 04:
So just looking at the facts of Hayden, what the outcome of Hayden was and what we have here.

[00:11:19] Speaker 04:
Why should we think about this case differently than the Hayden case?

[00:11:23] Speaker 03:
In Hayden, the rates were lower, and the government actually produced evidence that he might not have gotten the promotion.

[00:11:30] Speaker 03:
I think it's important to note that in this particular case, the drug enforcement agency produced no evidence.

[00:11:37] Speaker 03:
And when we asked in interrogation at 17, why did he not get promoted?

[00:11:43] Speaker 03:
They objected.

[00:11:44] Speaker 03:
And that objected was appell.

[00:11:46] Speaker 03:
We got no evidence on that issue when we asked them for their affirmative defenses.

[00:11:50] Speaker 01:
So can I?

[00:11:51] Speaker 01:
I'm sorry.

[00:11:52] Speaker 01:
Is that sufficient?

[00:11:55] Speaker 01:
Question.

[00:11:55] Speaker 01:
You complained about not having discovery.

[00:11:58] Speaker 01:
What is it if we vacate and remand this because the board did not apply the correct legal standard, what

[00:12:05] Speaker 01:
Do you envision being the next steps of the board?

[00:12:08] Speaker 01:
Is there then discovery, and then they go forward for a trial?

[00:12:12] Speaker 01:
Or do you think that's just not even necessary?

[00:12:14] Speaker 03:
I don't think that's necessary.

[00:12:15] Speaker 03:
I think the evidence is compelling.

[00:12:17] Speaker 01:
But you said you didn't have discovery.

[00:12:19] Speaker 01:
Did the government have sufficient discovery?

[00:12:21] Speaker 03:
But the burden is on the government to explain why he didn't get promoted, not us.

[00:12:26] Speaker 03:
Under you, Sarah, the burden shifts to the government.

[00:12:28] Speaker 03:
That burden was never applied.

[00:12:30] Speaker 03:
We were made to prove beyond a reasonable doubt why our position was correct.

[00:12:35] Speaker 03:
And this judge marshaled no evidence.

[00:12:37] Speaker 01:
Well, I know, but you see, you already have me on that part.

[00:12:40] Speaker 01:
I told you that so that you don't have to keep beating that dead horse.

[00:12:42] Speaker 01:
OK, certainly.

[00:12:44] Speaker 01:
But the bigger question is, what do we do with the case?

[00:12:47] Speaker 01:
If I'm with you on that they didn't apply the right legal standard, what is the next step?

[00:12:52] Speaker 03:
That's what I'm struggling with.

[00:12:53] Speaker 03:
Well, we think that the evidence is compelling enough for you to work.

[00:12:57] Speaker 03:
In the alternative, because a good attorney always says in the alternative, a remand could be appropriate.

[00:13:02] Speaker 03:
It cannot be to this administrative judge.

[00:13:06] Speaker 03:
The level of hostility was severe.

[00:13:08] Speaker 00:
How do you expect on the reasonable certainty question?

[00:13:11] Speaker 00:
That's a question of fact, right?

[00:13:13] Speaker 03:
Yes.

[00:13:14] Speaker 00:
OK.

[00:13:14] Speaker 00:
So you're saying that that standard was never applied.

[00:13:19] Speaker 03:
Never applied.

[00:13:19] Speaker 00:
There is never a fact finding on it.

[00:13:22] Speaker 00:
No.

[00:13:22] Speaker 00:
How can we make a fact finding as an appellate court?

[00:13:25] Speaker 03:
Well, I think the evidence in the case that was presented is that he met all the criteria for the promotion.

[00:13:31] Speaker 03:
Statistically speaking, all of those promotions had been granted unless there was a disciplinary history, a lack of time and grade.

[00:13:38] Speaker 03:
None of that existed.

[00:13:39] Speaker 03:
His supervisors approved his promotion.

[00:13:42] Speaker 03:
He had excellent reviews, and therefore, it was reasonably certain that that promotion.

[00:13:47] Speaker 00:
It still sounds like a factual question.

[00:13:51] Speaker 00:
I do understand that.

[00:13:53] Speaker 04:
So getting back to the facts here, did Mr. Knox receive SAC approval?

[00:14:01] Speaker 04:
Yes.

[00:14:02] Speaker 04:
The special agent in charge?

[00:14:03] Speaker 04:
Yes.

[00:14:04] Speaker 04:
Because the record is a little muddy to make.

[00:14:06] Speaker 04:
I mean, yes, the supervisor in Portland appeared to approve it.

[00:14:11] Speaker 04:
But then the sack in Seattle, there's an email suggesting that he hadn't yet approved it.

[00:14:18] Speaker 04:
A bot.

[00:14:19] Speaker 04:
Mr. Bot?

[00:14:20] Speaker 03:
Yes.

[00:14:21] Speaker 04:
So who is the sack that needed to give the approval for the promotion?

[00:14:26] Speaker 03:
A bot who actually did it.

[00:14:27] Speaker 03:
If you look through the record, he did it in June.

[00:14:29] Speaker 01:
Where?

[00:14:30] Speaker 01:
And the record will be fine.

[00:14:32] Speaker 03:
I would have to dig through your honor to tell you the truth.

[00:14:35] Speaker 01:
Well, that's what you're asking me to do.

[00:14:38] Speaker 03:
My apologies.

[00:14:39] Speaker 01:
OK, how about you bring it up on rebuttal?

[00:14:40] Speaker 01:
OK, certainly.

[00:14:41] Speaker 01:
But let me just, one thing before you sit down.

[00:14:43] Speaker 01:
You just said something that I don't remember in your brief a minute ago that kind of took me back for a second.

[00:14:49] Speaker 01:
You said, please, if you're sending it back, don't send it back to this particular AJ.

[00:14:53] Speaker 01:
Did you ask us for that in the brief?

[00:14:56] Speaker 01:
Yes.

[00:14:56] Speaker 01:
You did?

[00:14:57] Speaker 01:
I didn't remember that.

[00:14:57] Speaker 01:
OK.

[00:14:58] Speaker 01:
And why?

[00:14:58] Speaker 01:
What in particular is it that you think demonstrates that this AJ could not fairly adjudicate his case if it was sent back to them?

[00:15:06] Speaker 03:
He denied us every possible form of discovery.

[00:15:09] Speaker 03:
He committed an actual abuse when he took that deadline that the MSPB sets at its minimum of 10 days, cut it in half.

[00:15:16] Speaker 03:
He denied us depositions during a pandemic.

[00:15:18] Speaker 03:
He denied us relief, even though the government had agreed to it.

[00:15:22] Speaker 03:
He was short with us.

[00:15:24] Speaker 03:
He misstated things during a conversation he had, which when I pointed it out to him, he admitted he did it.

[00:15:29] Speaker 01:
Well, how about this?

[00:15:30] Speaker 01:
So when you come back up on rebuttal, you'll find the answer to that question about where in the record that approval is from Mr. Bott.

[00:15:37] Speaker 01:
And then also,

[00:15:38] Speaker 01:
You come back up with one or two sites that directs me to your best evidence that demonstrates that this AJ can fairly adjudicate.

[00:15:46] Speaker 04:
Certainly.

[00:15:46] Speaker 04:
If you have some kind of smoking gun quote from the AJ, some kind of inflammatory statement, that would be helpful to you.

[00:15:55] Speaker 03:
OK.

[00:15:55] Speaker 04:
Certainly.

[00:15:55] Speaker 04:
Rather than just decisions that you made that you disagree with.

[00:15:59] Speaker 03:
Well, it's not that I have that.

[00:16:01] Speaker 03:
OK.

[00:16:01] Speaker 03:
We'll see you on that.

[00:16:12] Speaker 01:
All right, Mr. Smith, please proceed.

[00:16:14] Speaker 02:
Good morning, Your Honor.

[00:16:15] Speaker 02:
May it please the court?

[00:16:17] Speaker 02:
To give a little background for our student listeners, the Uniformed Services Employment and Reemployment Act of 1994 provides two protections to military service members returning to civilian employment following military service that are relevant to this case.

[00:16:32] Speaker 02:
The first is re-employment, and what that provides is that a service member is guaranteed the right to return to the position they would have had absent interruption for their military service.

[00:16:44] Speaker 02:
The second is discrimination.

[00:16:46] Speaker 01:
Okay, but before you move on, so for that first one, do you agree that the legal standard is reasonable certainty?

[00:16:53] Speaker 02:
That is one portion of the legal standard, Your Honor.

[00:16:56] Speaker 02:
But I'd like to turn the court's attention to a separate track, which we certainly do have findings on in this opinion.

[00:17:04] Speaker 02:
And that is that a promotion, a GS promotion, in this case from GS-12 to GS-13, is not a right of employment applicable to all employees.

[00:17:13] Speaker 02:
And that's very important.

[00:17:14] Speaker 02:
And that goes back to, actually, what I just said about re-employment, in that you get to go back to where you were.

[00:17:19] Speaker 02:
And here, not every GS-12 employee

[00:17:21] Speaker 02:
Is promoted to GS 13.

[00:17:23] Speaker 04:
That's not a requirement, though.

[00:17:25] Speaker 04:
I mean, isn't reasonable certainty a standalone separate inquiry that can be satisfied?

[00:17:31] Speaker 04:
It is a in order to for Mr Knox here to get the GS 13.

[00:17:36] Speaker 02:
It is a third prong of the CFR, Your Honor.

[00:17:38] Speaker 04:
But the first I read those as being separate, independent bases.

[00:17:46] Speaker 04:
to get a GS13 promotion here, not that you have to satisfy all three of those.

[00:17:52] Speaker 02:
That is not how I read it, Your Honor.

[00:17:53] Speaker 02:
That being said, if you read it that way, I also think there is certainly evidence here for why it was not reasonably certain.

[00:17:59] Speaker 02:
I'm happy to discuss that.

[00:18:00] Speaker 04:
Have we ever had a case, I don't recall us saying, in Hayden, for example, that you have to satisfy all three prongs of that regulation?

[00:18:08] Speaker 02:
Those problems were treated separately, Your Honor.

[00:18:10] Speaker 02:
I cannot say, and I argued Hayden, actually.

[00:18:12] Speaker 02:
I can't tell, on behalf of the petitioner in that case.

[00:18:16] Speaker 02:
I do not recall if those were.

[00:18:17] Speaker 00:
You switched sides.

[00:18:19] Speaker 00:
Yes, Your Honor.

[00:18:22] Speaker 00:
All right.

[00:18:23] Speaker 00:
Council, one of the things that I have a concern about in this case is that I don't see where the AJ talked about reasonable certainty in his analysis.

[00:18:34] Speaker 00:
on page, for example, 813 of the record.

[00:18:37] Speaker 00:
I share Chief Judge Moore's concern about that.

[00:18:39] Speaker 00:
Do you think that the AJ addressed reasonable certainty?

[00:18:44] Speaker 00:
I just don't see it all.

[00:18:46] Speaker 00:
Instead, it seems to be that he was focused on whether there was a right to this

[00:18:53] Speaker 00:
discretionary promotion, as opposed to whether it was reasonably certain that he could have gotten it.

[00:18:57] Speaker 02:
He does not use the words reasonably certain in the opinion, Your Honor.

[00:19:01] Speaker 02:
I believe that he certainly devotes significant effort into that right of employment standard.

[00:19:06] Speaker 02:
I also think there are substantial evidence in the record demonstrates that it was not reasonably certain in this opinion.

[00:19:12] Speaker 00:
But how can we review a non-existent fact finding on reasonably certain for substantial evidence when we don't even have a fact finding expressly before us?

[00:19:22] Speaker 02:
Again, I don't necessarily think that's necessary here, given that we've determined that the GS promotion was not, in fact, a right of employment.

[00:19:30] Speaker 02:
Second of all, we would have to address the evidence that we do have in the record, Your Honor.

[00:19:36] Speaker 02:
Let's turn to that.

[00:19:37] Speaker 01:
Can I ask this right of employment thing?

[00:19:39] Speaker 01:
Can you explain it?

[00:19:39] Speaker 01:
I mean, I've got the CFR in front of me.

[00:19:41] Speaker 01:
I assume that we're talking about 353.106.

[00:19:42] Speaker 01:
That is correct, Your Honor.

[00:19:44] Speaker 01:
So what is, where are you deriving this right of employment concept?

[00:19:50] Speaker 02:
4316B4 specifically says that as part of a re-employment right.

[00:19:53] Speaker 01:
I'm sorry, what is it, B4?

[00:19:55] Speaker 02:
B4, yes, Your Honor, specifically indicates that a returning service member is- I don't have a four.

[00:20:00] Speaker 00:
I have a B. Oh.

[00:20:02] Speaker 00:
Is it 353.106?

[00:20:05] Speaker 02:
Excuse me, I have 38 U.S.

[00:20:08] Speaker 02:
I'm referring back to the USERA statute.

[00:20:10] Speaker 00:
My apologies, Your Honor.

[00:20:16] Speaker 02:
So which one?

[00:20:18] Speaker 01:
The 4316?

[00:20:20] Speaker 02:
Specifically indicates that a service member is not entitled to re-employment to a position that they would not have been entitled to had they remained consistently employed.

[00:20:30] Speaker 02:
Here there's no allegation nor is it true that every GS-12 employee is automatically promoted to GS-13.

[00:20:38] Speaker 04:
That's true, but no GS-12 is automatically entitled to a GS-13 promotion after three years of service in GS-12.

[00:20:45] Speaker 04:
But there are other factors at play here.

[00:20:49] Speaker 02:
Certainly, Your Honor.

[00:20:49] Speaker 04:
Did he get the SAC approval?

[00:20:51] Speaker 02:
No.

[00:20:51] Speaker 02:
And I think that's very important, as is the timing between the relative approvals.

[00:20:56] Speaker 04:
The acting SAC in Portland approved the promotion.

[00:21:00] Speaker 04:
Is that right?

[00:21:02] Speaker 04:
In June.

[00:21:04] Speaker 04:
But it came through.

[00:21:05] Speaker 02:
Yes, but I think the timing is very important.

[00:21:07] Speaker 04:
And then what about the SAC in Seattle?

[00:21:12] Speaker 02:
I'm not aware of any such proof in 2004.

[00:21:16] Speaker 04:
OK.

[00:21:16] Speaker 04:
So the point is, we're looking at someone who has a SAC approval.

[00:21:21] Speaker 04:
We know, we've seen the statistics, and that the three prior fiscal years, people in Mr. Knox's position, who were GS-12 and had three years service in GS-12,

[00:21:33] Speaker 04:
were promoted to GS13 at about a 98% clip for the prior three years.

[00:21:40] Speaker 04:
So it looks overwhelmingly likely that if you are a GS12 or three years in service, you get the GS13 promotion, especially when you have the SAC approval.

[00:21:50] Speaker 04:
And then there's evidence that other people similarly situated to Mr. Knox did, in fact, get that approval during that time frame.

[00:22:00] Speaker 04:
Why can't all of those be factors that, on remand, the board can consider, which it did not consider in the first instance, to assess whether or not it would have been reasonably certain that, back at that time, Mr. Knox would have gotten a GS13 promotion?

[00:22:17] Speaker 02:
Those are certainly factors that can be considered, Your Honor.

[00:22:19] Speaker 02:
And they were not considered.

[00:22:20] Speaker 02:
Is that fair to say?

[00:22:22] Speaker 02:
I do not agree with that, Your Honor.

[00:22:24] Speaker 04:
OK, because I read the board's decision as saying,

[00:22:29] Speaker 04:
These types of promotions are discretionary, and they're not automatic.

[00:22:32] Speaker 04:
And because they're not automatic, then you don't have a right to say that there was a Nassirah re-employment criteria.

[00:22:41] Speaker 04:
That seems to be the beginning and end of the analysis.

[00:22:48] Speaker 02:
With regards to reasonable certainty, Your Honor, I do not disagree with you.

[00:22:51] Speaker 02:
I will say that is in accord with both the Supreme Courts.

[00:22:54] Speaker 02:
opinion regarding reasonable certainty and Tilton where they said if this is discretionary, if this is based on the ability and the credentials of the individual, that that's not reasonably certain.

[00:23:03] Speaker 04:
Tilton only said that if the only thing you're relying on is your time in service and that you would have had the time in service for a discretionary promotion, that's not good enough.

[00:23:14] Speaker 04:
Here we don't have that.

[00:23:16] Speaker 04:
We have the evidence that 98% of the time people like this get the promotion.

[00:23:21] Speaker 04:
We also have the other

[00:23:23] Speaker 04:
The other evidence of at least some supervisors approving, we could quibble right now whether it was the right sack that gave the approval, but nevertheless, that is something that needs to be evaluated on remand, it would seem.

[00:23:37] Speaker 02:
I would like to quibble one step further than you identified, Your Honor, in that Mr. Knox is

[00:23:43] Speaker 02:
urging his court to find that he would have received a promotion in February.

[00:23:47] Speaker 02:
And frankly, Your Honor, those approvals did not exist.

[00:23:49] Speaker 02:
When he approached his supervisor in March, his immediate supervisor, she declined to submit that promotion at the time, as did the ASAC.

[00:23:59] Speaker 04:
Because at the time, the within grade increase did not kick in until April.

[00:24:04] Speaker 04:
That's the only reason why the supervisor didn't.

[00:24:06] Speaker 02:
Your Honor, I do not believe.

[00:24:08] Speaker 04:
And again, this could be evaluated more on remand.

[00:24:12] Speaker 02:
Your Honor, I think the administrative judge did make a finding as to whether that tie-in was there.

[00:24:18] Speaker 02:
And he indicated that neither party presented the requisite evidence to tie in that delay to the ASAC, excuse me, to the failure to promote him whatsoever.

[00:24:29] Speaker 02:
And I would humbly submit, Your Honor, that every citation with regards to what the immediate supervisor was thinking in the record that's provided is simply to a declaration provided by Mr. Knox himself.

[00:24:39] Speaker 02:
There's no evidence.

[00:24:40] Speaker 02:
demonstrating why, in March, she was not willing to move forward.

[00:24:43] Speaker 04:
Would you agree that the question of whether it would have been reasonably certain that Mr. Knox would have gotten the promotion is a question of fact?

[00:24:55] Speaker 02:
I would have to consider that, Your Honor.

[00:24:56] Speaker 02:
Again, I don't think we even get there.

[00:24:59] Speaker 02:
I didn't quite hear an answer.

[00:25:00] Speaker 02:
Is it a yes?

[00:25:02] Speaker 02:
To be honest, no, Your Honor.

[00:25:04] Speaker 02:
That's a legal question?

[00:25:05] Speaker 02:
Well, in light of this court's precedent in Hayden and in Tilton, there's certainly a name.

[00:25:11] Speaker 04:
In Hayden, we reviewed the finding by the board that in that particular instance, Mr. Hayden's promotion would not have been reasonably certain.

[00:25:21] Speaker 04:
And we concluded that substantial evidence supported that finding.

[00:25:26] Speaker 04:
So under that circumstance, don't you think?

[00:25:29] Speaker 02:
I stand corrected.

[00:25:34] Speaker 02:
If that was the substantial evidence, affirmance on that question, then I stand corrected.

[00:25:40] Speaker 04:
OK, so it's a fact finding that maybe, just maybe, needs to be done in the first instance.

[00:25:44] Speaker 04:
We can't do it, and the board didn't do it yet, right?

[00:25:49] Speaker 02:
Well, the board did provide findings that this was not a mandatory promotion, excuse me, an automatic promotion, and that there was wiggle room here.

[00:25:56] Speaker 01:
One of my concerns with this is I do feel like your opposing counsel basically said you've read the word reasonable out of reasonable certainty.

[00:26:04] Speaker 01:
Certainty seems like something on a spectrum between discretionary and automatic.

[00:26:09] Speaker 01:
Certainly, certainty seems automatic.

[00:26:12] Speaker 01:
Reasonable certainty, I feel like, must be just a little shy of automatic, don't you think?

[00:26:18] Speaker 02:
I think there's a gray area there, Your Honor.

[00:26:19] Speaker 02:
For instance, in the position where the x% of employees were automatically going to get, excuse me, were entitled to a GS13 promotion based on some test.

[00:26:31] Speaker 02:
But then the individual departed from military service.

[00:26:34] Speaker 02:
That, to me, would be reasonably certain.

[00:26:37] Speaker 00:
Here are the evidences in it that it's 98% with SAC approval.

[00:26:45] Speaker 02:
under the three-year grade in the preceding three years.

[00:26:48] Speaker 02:
I think if you look, as we suggest in our brief, if you look at the wider discretionary approval process for the GS12, GS13 promotion, those are different.

[00:26:56] Speaker 02:
I will, again, referring back to Hayden, we were talking about 90% there as well.

[00:27:00] Speaker 02:
So I don't think the percentages are necessarily relevant.

[00:27:03] Speaker 02:
I also think there are reasons in the record here to suggest that this was a time of flux, as I believe Chief Judge Moore questioned Mr. Knox's counsel for.

[00:27:12] Speaker 00:
I mean, I think the concern is that was there a time of flux in February?

[00:27:16] Speaker 00:
There was a time of flux at the time that he was actually considered because of the mistaken time of increasing his staff.

[00:27:24] Speaker 02:
Your point is well taken, Your Honor.

[00:27:26] Speaker 02:
That being said, I do think that the three months from the March to June is instructive on this point, that at the very least, the evidence suggests that we are looking at a period of multiple months before this goes up to actual approval.

[00:27:38] Speaker 02:
And even had Mr. Knox been approved in, and we make this point brief, even had Mr. Knox had the requisite approvals, which he lacked as of February, even had his immediate supervisor been willing to promote him in February, which he was not,

[00:27:52] Speaker 02:
There was a delta in the gap between when those promotions were raised up through the chain and when they received approval.

[00:27:57] Speaker 02:
Here, that's three months.

[00:27:58] Speaker 01:
Can you address for me the point that opposing counsel made about whether if we were to send this back, it should go back to the same A.J.

[00:28:05] Speaker 01:
or not?

[00:28:06] Speaker 01:
It normally does go back to the same page.

[00:28:07] Speaker 02:
Certainly.

[00:28:08] Speaker 02:
And Your Honor, I don't think there's any substantiated allegation of bias here that would prevent that.

[00:28:13] Speaker 02:
I will, to Mr. Knox's point, he did make that request.

[00:28:16] Speaker 02:
I think it's at page 17 of his brief or the like.

[00:28:19] Speaker 02:
This is not a new request.

[00:28:21] Speaker 01:
And I'm sorry, because I obviously missed it.

[00:28:24] Speaker 01:
What was the government's response to that?

[00:28:25] Speaker 02:
That there was no bias substantiating that.

[00:28:27] Speaker 02:
Frankly, the allegations of bias here are about substantive questions that were asked

[00:28:33] Speaker 02:
During a scheduling conference.

[00:28:35] Speaker 02:
I'd humbly submit your honor that that happens to me on a routine basis I've certainly had many initial status conference scheduling conferences where we get into the weeds of particular matters And that does not raise the allegation of bias nor does I believe there was the allegation that no discovery had been granted That's incorrect.

[00:28:52] Speaker 02:
In fact, they won a subsequent motion to compel on separate grounds a failure to participate in a meeting confer is a valid reason for eliminating, excuse me, rejecting a motion to compel and

[00:29:03] Speaker 01:
Okay, just so if we were to vacate and remand this what do you think the next steps are what would happen?

[00:29:09] Speaker 02:
Well, I think we have one it would go down to the AJ for a fact-finding with regards to I Think your belief your belief would be reasonable certainty.

[00:29:19] Speaker 02:
Frankly.

[00:29:19] Speaker 02:
I do not believe that's necessary Obviously, but you might disagree then we would have the question of with regards to a discrimination claim We would have to allow the government to present should the administrative judge find

[00:29:33] Speaker 02:
that there was some motivating factor with regard to military service.

[00:29:37] Speaker 02:
Under the burden-shifting framework of USERRA discrimination claims, it would now flip back on the government to show that it would have taken the same action necessary, even absent discrimination.

[00:29:46] Speaker 04:
The opposing council said there was no evidence to support the idea that there was no link between the military service and the delay in which the upgrade increased.

[00:29:56] Speaker 04:
And so therefore, the board, the AJ's finding to the contrary, it needs to be reversed.

[00:30:03] Speaker 04:
Can you comment on that?

[00:30:05] Speaker 04:
In other words, the board essentially put the burden on Knox.

[00:30:09] Speaker 02:
That is correct, Your Honor.

[00:30:10] Speaker 02:
The discrimination must be shown by the appellant under the USERA burden shifting framework.

[00:30:14] Speaker 02:
He needs to come forth with a showing of motivation or consideration of the military service.

[00:30:20] Speaker 02:
The administrative law judge here found that such evidence was lacking, that neither party had shown why that occurred.

[00:30:25] Speaker 04:
And then he was prejudiced by having his emotions for discovery denied.

[00:30:33] Speaker 02:
So can you respond to that?

[00:30:38] Speaker 02:
Certainly, Your Honor, the evidence that is in the record as it exists today does not support any substantial and motivating factor.

[00:30:45] Speaker 02:
The only evidence cited by Mr. Knox is a piece of discussion between two HR personnel, which actually post-dated within grade increase being granted.

[00:30:57] Speaker 02:
So it's not probative of the matter of whether of any military service being considered at the time.

[00:31:05] Speaker 02:
I believe that no, again, Mr. Knapp's failure to comply with the administrative law judge's procedures regarding discovery was a valid reason to deny the motion to compel.

[00:31:18] Speaker 02:
And therefore, there's no reason to reopen the record.

[00:31:21] Speaker 02:
And in fact, as the opinion hints at, the government's latches defense would have teeth

[00:31:28] Speaker 02:
Should we get down into the weeds again?

[00:31:31] Speaker 02:
It's been 17 years.

[00:31:33] Speaker 00:
Council, I have a question for you.

[00:31:34] Speaker 00:
Your question about what would be considered unremand confused me a little bit.

[00:31:39] Speaker 00:
And let me tell you why.

[00:31:40] Speaker 00:
I think on the right to re-employment, that is what we're talking about with reasonable certainty.

[00:31:47] Speaker 00:
And that is what we're talking about vacating and remanding.

[00:31:51] Speaker 00:
I don't understand why you'd get into the discrimination and the burden shifting

[00:31:55] Speaker 00:
on that issue, because I don't think that has any applicability to the right to re-employment.

[00:32:00] Speaker 02:
We 100% agree, Your Honor.

[00:32:01] Speaker 02:
I must have misunderstood the question.

[00:32:03] Speaker 02:
If it was only a remand on the re-employment, we would not have to get into the burden shifting framework or the like.

[00:32:08] Speaker 02:
Apologies if I confused the court.

[00:32:10] Speaker 01:
OK, thank you, Mr. Smith.

[00:32:11] Speaker 01:
Mr. Burns, do you have a little bit of rebuttal time?

[00:32:15] Speaker 03:
Yes, just very briefly.

[00:32:17] Speaker 03:
Just an answer to keep up.

[00:32:19] Speaker 03:
into Judge Chen's question.

[00:32:22] Speaker 03:
We cited it.

[00:32:23] Speaker 03:
It's part of the underlying tab.

[00:32:25] Speaker 03:
I will admit that the tab says that this position title is a tab one of the.

[00:32:31] Speaker 03:
It's not in this record.

[00:32:32] Speaker 03:
It's of the underlying record before the administrative judge.

[00:32:35] Speaker 03:
My apologies.

[00:32:37] Speaker 03:
And it says that it was approved sometime before June 3, 2004.

[00:32:42] Speaker 03:
By whom?

[00:32:43] Speaker 03:
By boss.

[00:32:46] Speaker 03:
And the second point you raised was, why would the judge's actions be so biased that we would want a remand?

[00:32:57] Speaker 03:
This court has ruled that restricting the discovery deadline below the minimum is itself an abuse of discretion.

[00:33:04] Speaker 03:
And federal courts have ruled that as well.

[00:33:06] Speaker 03:
The rule set the minimum, which is 10 days.

[00:33:09] Speaker 03:
Otherwise, the judge could say, you have one day.

[00:33:12] Speaker 03:
Well, you have no days.

[00:33:13] Speaker 00:
But how can the concern is this, is just because

[00:33:16] Speaker 00:
Maybe we would say that a judge abused his or her discretion.

[00:33:21] Speaker 00:
Doesn't mean that they're so biased that they can't hear the case on remand.

[00:33:25] Speaker 00:
How do you tie those two things together?

[00:33:27] Speaker 03:
When a judge questions my integrity in front of my client and asks my client directly what he did and directly what he said to me, I do take exception to that.

[00:33:39] Speaker 03:
I think that was borderline unethical.

[00:33:42] Speaker 00:
Where is that?

[00:33:43] Speaker 03:
It's in the summary of the status hearing.

[00:33:45] Speaker 03:
One of the objections I raised, which the judge didn't deny, is he queried Mr. Knox directly

[00:33:52] Speaker 03:
on a document suggesting that I had misstated the record by citing that document.

[00:33:58] Speaker 03:
And I objected to that rather vehemently, saying, you're asking my client to go into our discussions.

[00:34:03] Speaker 01:
Can you tell me where I can read that?

[00:34:05] Speaker 03:
It is in our response to the summary status conference.

[00:34:08] Speaker 03:
And in his reply, which he raises the bias.

[00:34:26] Speaker 03:
My apologies, Your Honor.

[00:34:37] Speaker 03:
The exact citation is contained within our actual brief in the record.

[00:34:46] Speaker 03:
And I'm just trying to find it.

[00:35:10] Speaker 03:
Might I just ask briefly my assistance of my first wild card?

[00:35:14] Speaker 03:
Sure.

[00:35:24] Speaker 03:
It is at the, in section E of our brief, it cites the appendix citations for all these quotes.

[00:35:38] Speaker 03:
It begins.

[00:35:40] Speaker 03:
There are a number of citations on page 44 and 45 of our brief.

[00:35:44] Speaker 03:
And rather than.

[00:35:45] Speaker 01:
Is there a particular one that you think is best?

[00:35:47] Speaker 01:
You said he questioned your integrity.

[00:35:49] Speaker 01:
He's basically called you a liar.

[00:35:51] Speaker 01:
I want to see it.

[00:35:51] Speaker 01:
I want to see where he supposedly did this.

[00:35:53] Speaker 03:
Appendix 1235, I think is really.

[00:36:16] Speaker 00:
So this is your own pleading at PDT 1234?

[00:36:19] Speaker 00:
Yes, ma'am.

[00:36:19] Speaker 00:
Yes, ma'am.

[00:36:20] Speaker 03:
And then his response is at the order.

[00:36:24] Speaker 03:
I responded to his order and summary of the conference call.

[00:36:26] Speaker 03:
So it's all in writing.

[00:36:28] Speaker 01:
I don't see here where he called from the wire.

[00:36:31] Speaker 01:
I don't see that's where.

[00:36:32] Speaker 03:
No, he called me last.

[00:36:34] Speaker 03:
He questioned my integrity.

[00:36:35] Speaker 01:
Where did he question your integrity?

[00:36:37] Speaker 03:
Where?

[00:36:38] Speaker 03:
I don't see anything.

[00:36:48] Speaker 01:
You know, if you're going to ask us to send it back to a new judge, that is a pretty big deal thing.

[00:36:55] Speaker 01:
And to make that kind of accusation, you should come here fully prepared to defend it.

[00:37:02] Speaker 01:
Because jurists are not generally biased.

[00:37:06] Speaker 01:
And when you make allegations that this one was, you pretty much have to have your ducks in a row.

[00:37:12] Speaker 01:
I think we're out of time.

[00:37:14] Speaker 01:
Thank you very counsel for taking up the commission.