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have Judge Cechy on our panel this morning.

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Judge Cechy is sitting by designation from the United States District Court for the District of New Jersey.

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We have four cases on our panel on our schedule for argument today.

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The first is Prather v. Arming.

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It's docket number 23-1452.

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Ms.

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Watson, whenever you're ready, you can proceed.

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Thank you.

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Good morning, Your Honors.

[00:00:39] Speaker 03:
Good morning.

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Thank you.

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In this case, the appellant, Terrell Prather, was assigned to a position with the Army overseas in Germany as a food service operations specialist.

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And in October 2013, his coworker, Heinz Kassenberger,

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started an argument with him about whether his door should be open or closed.

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From that event, precipitously, Mr. Prather's approval to be placed in his position overseas was removed on the basis of Mr. Kaffenberger's misconduct allegation based on that event.

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This case is being appealed because Mr. Prather

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was not afforded a meaningful chance to oppose that misconduct allegation.

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I thought that the main argument that you were making today was that the proper Douglas factors weren't considered in the analysis.

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We have submitted that argument, and we do reassert that argument, submit that this action was fundamentally based on an erroneous misconduct determination, which are, in the federal service, analyzed under the 12 Douglas Factors, which we address in our brief.

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Do you have an issue with the three Douglas Factors that the board focused on?

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We don't have an issue with them.

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I recognize those are included in those 12 Douglas Factors, which are to be considered.

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And you do recognize that not every factor is considered in every case.

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In this case, with the charge of failure to meet a condition of employment, which is Mr. Prather's registration on the Priority Placement Program, PPP.

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I do recognize that under the Penland case and others, that the board and the court generally focuses on a subset of three as the most important.

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And we do submit that even under that standard, this action was not warranted.

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But you are discretionary, though, to determine which factors actually are applicable.

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Understood, Your Honor.

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And again, even without challenging applying those three factors, we submit that this action was not warranted.

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Can I ask you?

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So you're suggesting there is not substantial evidence to support the analysis of the three Douglas factors that were considered?

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Is that what you're saying?

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You know, I guess that's our position.

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And in tandem with that, I'd like to mention that the cases cited in the briefs, for example, Pennland itself, Adams versus Army, a 2007 MSPB decision, McGillivray,

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versus FEMA, Akval versus Army.

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Those cases recognize that the decision itself to remove Mr. Prather from the PPP is reviewable for reasonableness.

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And in this case, that decision was based on an erroneous determination that Mr. Prather had committed misconduct, as reported by management.

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in our arguments in which we are pressing that Douglas factors would be the more appropriate way to review is connected with this idea that the fundamental error that occurred in this case was that Mr. Prather had an argument with a coworker two days later.

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That coworker who was a supervisor, but not Mr. Prather's supervisor,

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said, I have observed misconduct.

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But didn't he fail to maintain a condition of employment?

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Isn't that the real issue?

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That is the charge that he was charged with and the charge on which his removal was based.

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I'm presenting, I'm attempting to impress on the court that the underlying decision that Mr. Prater did commit misconduct

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should be reviewed again, because I don't believe it is supported by substantial evidence or status of state.

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I didn't see where you were raising that issue.

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Can you point to me?

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If I look at your statement of the issues, for example, in your blue break, you say that it sounds as if one issue is whether the proper Douglas Factors to be considered are only the ones that were considered.

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And then the second issue is considering all those factors.

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Was it inappropriate to find removal with a reasonably effective penalty?

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So I'm having a hard time understanding why you're raising what I think is a new issue.

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I understand, Your Honor, and I will respectfully submit it.

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It may be new, but it's closely related to our argument.

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You can't raise a new issue at oral argument.

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That would not be appropriate.

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I understand.

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But it doesn't change our position.

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If analyzed under either the Douglas Factors or the Pennland Factors, the removal action is not warranted under these circumstances.

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The Pennland Factors include the

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one of them being an availability of alternative sanctions.

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And I would note that

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In the record, it's reflected that in 2012, late 2012, Mr. Prather had to delay his registration for the PPP because of a letter of reprimand.

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This suggests that delaying registration is an alternative sanction.

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And fundamentally, you're saying because previously, that's what was done.

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That should have been done again.

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Right.

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Before us, you want to present your legal argument.

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Why is it that in a circumstance like this, there should be consideration of additional Douglas Factors other than just the three that were considered by the agency?

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What is your legal basis for that?

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Our legal basis is that in reality, this action is based on a misconduct allegation.

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And the misconduct is disturbance in the workplace is the charge.

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And our position is that Mr. Prather at no point got a fair adjudication of that underlying charge.

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And it frankly has led to what we consider an absurd result.

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Is there a specific additional Douglas Factor you think should have been analyzed?

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And if so, what is your best case to indicate why that is the case here?

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It should be analyzed in addition to the three that were.

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Well, Your Honor, I think what is often cited as the most important is the nature and seriousness of the offense.

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And if that is reviewed and applied to the misconduct allegation at issue.

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But isn't that the first factor that they applied?

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They applied the nature of the offense, its effect on appellant's performance on the job, and the availability and effect of alternative sanctions.

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Or rather, those are the Penfield factors.

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But nature of the offense.

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was the overlapping element here.

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That is element number one under Pennland and also element number one under the Douglas Factors.

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Yes, Your Honor, and I recognize I am focusing on the underlying misconduct charges as being, in our point of view, very low seriousness, not warranting removal, not warranting an actual disciplinary action by the agency.

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So I recognize policy states is not required.

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So one of the concerns I'm having, and this gets a little bit more into the facts of the case and not really the legal issue that's before us, but one of the sounds is if you're suggesting that we should be looking at the underlying misconduct as opposed to looking at whether he satisfied the requirements for employment to be part of the PPP program, right?

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Why is it that we should look at,

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that underlying determination when he was told, you're going to have to have certain kinds of behavior.

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And if you have additional misconduct, you're going to be removed from the PPP program.

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It's a requirement.

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Yes, Your Honor.

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And our position, it fundamentally comes down to the cases that you can compare this one to, such as the ones I've mentioned, involve, for example, in Pennland,

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the appellant lost his pilot's license.

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That was reviewed because he was involved in an aircraft accident.

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In another case, I believe, Axvold, that appellant, pled guilty in a Japanese court to a drug offense.

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Mr. Prather had an argument about his door.

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So our position is this is a fundamentally absurd result to have an argument about his door, and then the same person with whom he had that argument simply accused him of misconduct two days later.

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And less than two weeks later, he's off the PPP and out of the federal service.

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But isn't that still nature of the offense?

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And didn't the board actually take a look at that issue?

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Forgive me, which issue?

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The nature of the offense.

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Doesn't that reflect the nature of the offense?

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You're saying he had an argument with someone.

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So in evaluating that, that is reviewing the nature of the offense, which is factor number one that the board did review, correct?

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The board did state that an affirmation or agreement with the decision to remove Mr. Prather from the PPP

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And our position is that which is, in my view, part and parcel with its review of the overall reasonableness of the action.

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But our position is that they did not afford sufficient review to that factor or to that service.

[00:11:36] Speaker 02:
Well, but they've done.

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I mean, the agency explained it's very hard, particularly

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on appeal for us to second-guess what the agency considers to be misconduct or the nature of the offense, the strength of the offense, how much that interferes with the work that has to be done, right?

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So what is your legal argument for why or why there isn't substantial evidence to support that determination below that what was done was sufficient on nature of offense?

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That we submit that there is a lack of substantial evidence that Mr. Prather could not perform his duties going forward after this incident.

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He had an incident in the past that apparently did not warrant his complete removal from the PPP, but rather a formal discipline of a letter of reprimand, which this incident did not.

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And therefore, we submit that this should be

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reversed or remanded for further review on that issue.

[00:12:44] Speaker 02:
You have a little over two minutes.

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Do you want to save the rest of your time?

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If I may, yes.

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Thank you.

[00:12:50] Speaker 02:
Let's hear from the government.

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May it please the court?

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I guess I just want to address sort of an overall point, which the charge here was failure to meet a condition of employment.

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And so the Douglas Factors really have to link to that charge, the charge that was affirmed.

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With respect to this underlying issue of misconduct, I mean, those factual issues were looked at by the board.

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I mean, if you look at pages eight and nine of the board's decision,

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It goes through.

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It credits the witness statements of the other individuals, not just Mr. Prather's supervisor, but, for example, a, quote, disinterested observer.

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And so the board looked at that and found that to be reasonable with respect to step one of the three-part inquiry here.

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So step one is whether the charge was met.

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Now, we're here, despite, I think,

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petitioner attempting to raise maybe a due process claim in the reply brief or now challenging the first part in oral argument here, those issues were not raised.

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So the only issue here is the appropriate application of the Douglas factors.

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And when the charge is proven, it has to link.

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The penalty analysis has to link here.

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And the Douglas factors that were chosen make sense.

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If you look at even Douglas himself,

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The Douglas court, the board in Douglas used the phrase practical realism.

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And that, I think, is what needs to be the focus here.

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And this court in Zing and Nagle also said there's no mathematical formula that either the agency or the board has to go through to make sure that every single factor is addressed.

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And here, when you have failure to meet a condition of employment,

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unless there is an argument that one that wasn't really a condition of employment or two it was actually met then you know those are the most important factors and question about that factor so that's one factor is the same is what you looked at as well the adequacy and effectiveness of alternative sanctions correct that's correct on so what counsel appears to be arguing is that the result here is disproportionate

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If you'd like to respond to that what actually occurred?

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Well that factor is going to is there based upon the charge is there something else that could be a penalty here and the testimony that we have here is that Essentially when you're serving these overseas position, there's essentially a five-year limit And so when we're talking about this earlier reprimand issue his at that point his tour

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had not been over at that point.

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And so that was a different issue.

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I mean, it's unclear to me how the fact that he had an earlier reprimand actually helps in a Douglas Factors analysis.

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But the testimony that was elicited in this case was also that the deciding official considered whether or not, essentially, that he could just extend the tour out.

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And he found that

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that he thought that that was not appropriate and why would it be appropriate to do that.

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Again there was testimony at least at the hearing that this is essentially an over hire position but when it comes right down to it

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The Army has an interest in rotating people out of these overseas positions.

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The individuals sign this agreement.

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It's very clear.

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There's policy reasons for that, because individuals are rotating a lot into these positions, for example, spouses of military service members.

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And so if you have an individual who is essentially static in this position, then that can't take place.

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uh... you know there's other reasons to that's probably you know don't need to get into but if yours if you're overseas for a certain period of time eventually the german government or wherever government you're serving under is going to wonder whether actually but you know a resident of germany or whatnot but that's just getting to the point that uh... the board considered alternative sanctions uh... and if you if you look at the douglas factor analysis uh... for the full board it it

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it got into that.

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And it's based upon the testimony.

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So it's difficult to see how there could not be substantial evidence of that.

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Did you think any other factor needed to be looked at?

[00:17:45] Speaker 00:
No, because those are the key factors.

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I mean, there's other factors that actually the agency actually looked at, but just weren't really at issue.

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So for example, consistency.

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with respect to other employees.

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That's one of the Douglas factors.

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And the deciding official pointed to the fact that there weren't other comparators.

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So essentially, that factor drops out.

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So the full board doesn't need to go through and essentially have an opinion so that there's 12 factors and check the box.

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whether all of them are applicable or not.

[00:18:23] Speaker 04:
So your position is that you looked at the salient factors for this particular situation?

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Both the Army and the board looked at the salient factors.

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Certainly when you look at the board's opinion, it's focusing on the ones that make sense in the context of a case where it's a failure to meet a condition of employment and there's been no challenge

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as to whether that charge has been established under the first prong of essentially of the adverse action analysis.

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So yes, that's correct.

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And that's entirely consistent with Nagel and the Zing case and this court's precedent.

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So if there's nothing further, I just ask that you affirm the decision of the board.

[00:19:11] Speaker 00:
Thank you.

[00:19:15] Speaker 02:
Ms.

[00:19:15] Speaker 02:
Watson?

[00:19:16] Speaker 02:
You have, I think, two minutes and 46 seconds.

[00:19:23] Speaker 03:
All right.

[00:19:23] Speaker 03:
Thank you, Your Honor.

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I would briefly like to make reference to counsel's reference to practical realism, which is, I think, one of the fundamental notions we're trying to get across with our appeal.

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And Mr. Prather, as I mentioned,

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He got into an argument.

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The person whom he got into that argument with two days later accused him of misconduct.

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Less than two weeks later, he's out of the federal service.

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This is out of proportion with many of the cases.

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The cases cited where a condition of employment is revoked and that appellant loses his or her job.

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And because, as I say, the other cases involve things that are gross negligence, dangerous situations, criminal conduct.

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And none of that was at issue in Mr. Prather's case.

[00:20:23] Speaker 01:
Well, you do agree that there was a failure to meet a condition of employment.

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We cannot fail to concede that point.

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But what we are hoping will be recognized is that the very person with whom he got in that argument is the one who precipitated that action.

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Is that the due process argument that you made in your advantage?

[00:20:50] Speaker 03:
Yes, Your Honor, yes.

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And we appreciate your time and consideration for that.

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And if there isn't anything further, then I'm concluded.

[00:21:00] Speaker 03:
Thank you.

[00:21:02] Speaker 02:
Thank you.

[00:21:03] Speaker 02:
The case will be submitted on the brief.