[00:00:00] Speaker 01:
May it please the court, we're asking on this appeal for a remand back to the Court of Federal Claims on the ground that there is jurisdiction in the lower court in this instance.

[00:00:11] Speaker 01:
Judge Dietz held that there was not, based on an interpretation of United States detested,

[00:00:17] Speaker 01:
But Testen very clearly said that the Backpay Act provides a money-mandating cause of action where the employee is in the classified position and alleges an unwarranted deprivation of salary.

[00:00:31] Speaker 01:
The issue in Testen was that the employee was seeking another position.

[00:00:35] Speaker 01:
He wasn't yet classified.

[00:00:37] Speaker 01:
And that's why the Supreme Court said there was no jurisdiction.

[00:00:39] Speaker 01:
So we believe Judge Dietz was in error in how he construed that question.

[00:00:44] Speaker 04:
Can I go back to there are several different arguments that play here.

[00:00:49] Speaker 04:
And one of them is the idea, based on what Fausto and Elgin, that the Civil Service Reform Act ousts whatever jurisdiction might otherwise have existed under the Tucker Act, whether it be the Backeye Act or anything else, for a challenge to

[00:01:12] Speaker 04:
a matter covered by the Civil Service Reform Act, and this one is removal.

[00:01:17] Speaker 04:
Why does that not fully resolve the matter?

[00:01:21] Speaker 01:
Because I don't think it applies to what is really construed as a structural question.

[00:01:26] Speaker 01:
Now, in Freitag, the court dealt with a related issue, whether or not it was something within it.

[00:01:31] Speaker 04:
The government, I think, tell me if I'm misremembering, acknowledges that the board, whether the administrative judge or the full board, can in fact hear and adjudicate a challenge to the constitutionality of the agency

[00:01:51] Speaker 04:
removing during a period when there is no full board.

[00:01:57] Speaker 01:
I have no doubt that it could hear it.

[00:01:59] Speaker 01:
The question is whether that is the exclusive agency or forum for the matter.

[00:02:03] Speaker 04:
But why isn't the logic of Elgin and Fausto that at least as to a constitutional matter that the board can hear, it's the only forum to do that?

[00:02:14] Speaker 01:
Because I think they go to the constitutionality of the merits of a question rather than the structural issue of whether there's even a lower agency to even act on the question of deprivation of salary.

[00:02:26] Speaker 01:
When one looks at the issue in New Process and Noel Canning, the Supreme Court very clearly said that we're the adjudicating agency has no members in office.

[00:02:40] Speaker 01:
It has no legal power at all.

[00:02:42] Speaker 01:
And the question of FITAG was, well, there are structural issues that really transcend an agency.

[00:02:48] Speaker 04:
But I'm sorry, there is an agency now.

[00:02:50] Speaker 01:
There is an agency now, but there wasn't number one at the time we brought the action.

[00:02:55] Speaker 04:
But the now existing agency can hear the argument that during a period in which there was no MSPB, all removals were unconstitutional.

[00:03:08] Speaker 01:
Well, we'd have to go back to the agency.

[00:03:09] Speaker 04:
That's your argument, right?

[00:03:11] Speaker 01:
It's not a small proposition.

[00:03:15] Speaker 01:
It actually affects hundreds of people because there's a five-year gap when the MSPP had no members.

[00:03:21] Speaker 01:
And so it's a significant, it is a structural question really whether an agency can act at all.

[00:03:26] Speaker 01:
Now in New Process and Noel Canning, the court rejected this proposition, the Supreme Court.

[00:03:31] Speaker 01:
It said no, the agency itself is not the one

[00:03:34] Speaker 01:
to determine whether it's lost its powers, in effect, that's a question that does go to the courts.

[00:03:40] Speaker 01:
And so where the question relies upon or devolves upon an unwarranted deprivation of salary, in other words, when there is no legal power to deprive, it's really not something that must be filed within the agency.

[00:03:52] Speaker 01:
A new enterprise in Noel County make it pretty clear that one can go beyond the agency to the judicial system.

[00:03:58] Speaker 01:
So if the claim arises from a money-mandating statute, as we say it does under Testen,

[00:04:03] Speaker 01:
The Court of Federal Claims is an appropriate body.

[00:04:06] Speaker 01:
So I think that although, in theory, the MSPP, now that it exists again, could be asked to adjudicate whether that earlier deprivation of salary was constitutional.

[00:04:16] Speaker 04:
Have you asked it to do that?

[00:04:18] Speaker 01:
No, because they didn't acquire it.

[00:04:19] Speaker 01:
I didn't mean to interrupt your answer.

[00:04:20] Speaker 04:
No, no, no.

[00:04:20] Speaker 04:
The proceeding is underway now, right?

[00:04:22] Speaker 01:
The proceeding is concluded.

[00:04:23] Speaker 01:
But it didn't start until after all of this process took place.

[00:04:27] Speaker 01:
I think we even filed this appeal

[00:04:29] Speaker 01:
just before it acquired membership.

[00:04:32] Speaker 01:
So that issue didn't come before the administrative, well, the MSPP at all at that point.

[00:04:39] Speaker 00:
So this is maybe a little bit of the mootness question that's raised.

[00:04:43] Speaker 00:
So since their non-existence was temporary, everybody understood that to be the case and that's what happened.

[00:04:51] Speaker 00:
Everything else could have been adjudicated.

[00:04:55] Speaker 00:
You could have gotten back pay.

[00:04:57] Speaker 00:
For cases, you could have theoretically, even if the adjudication was delayed for five years, your back pay would then just exceed the amount it otherwise would have for people who were ultimately adjudicated and find to have merit in their claims.

[00:05:14] Speaker 00:
So in your case, given what's left on, is your mootness argument that it's not moot because one of your claims had to do with the fact that he should have never been fired in the first place during the period in which the board was non-existent?

[00:05:32] Speaker 00:
The firing itself should not and could not have happened?

[00:05:35] Speaker 01:
I think the claim is that he should not have been deprived of salary.

[00:05:38] Speaker 01:
during a period when the process for terminating didn't exist.

[00:05:43] Speaker 01:
In other words, the agency itself, in this case the FDA, has a duty to prove its case in the MSPB.

[00:05:50] Speaker 01:
Can't do that if the MSPB doesn't exist.

[00:05:52] Speaker 01:
So the issue is not really the merits.

[00:05:54] Speaker 04:
When there is a removal, does salary stop getting paid during the, I'm going to make up a number,

[00:06:03] Speaker 04:
12 months it takes for there to be even an initial AJA ruling in the board?

[00:06:09] Speaker 01:
Not necessarily.

[00:06:10] Speaker 01:
In fact, in this case... No.

[00:06:11] Speaker 00:
I mean, the answer is no, right?

[00:06:12] Speaker 00:
If someone is removed, they're removed and their pay stops.

[00:06:17] Speaker 00:
And then the employee has the option of trying to appeal it to the MSA.

[00:06:21] Speaker 01:
Well, I think what Judge Sorrento was asking was prior to the actual formal removal during the process itself.

[00:06:27] Speaker 04:
No, no, no.

[00:06:27] Speaker 04:
Post removal.

[00:06:28] Speaker 04:
Post removal.

[00:06:29] Speaker 04:
Post removal, formal removal, you're gone 10 days from now.

[00:06:33] Speaker 04:
Salary stops even before the board gets to adjudicate it.

[00:06:40] Speaker 04:
And that's so even though if the employee, former employee, goes to the board, it's the agency's burden to justify what it did.

[00:06:50] Speaker 04:
You don't wait for the justification in order to stop the payments.

[00:06:57] Speaker 01:
I think that's the practice.

[00:06:59] Speaker 01:
I don't recall offhand if there's a specific regulation that states salary must ipso facto terminate.

[00:07:05] Speaker 01:
Well, if someone has removed, there's no basis on what you could pay them.

[00:07:08] Speaker 01:
I have to agree, as a practical matter, that's true.

[00:07:11] Speaker 01:
And so you can go back immediately to the administrative law judge in that case and say, now wait a second, my conviction was vacated, my conviction was expunged under state laws as a case here, and the administrative law judge could immediately say, well no, in that case we should at least maintain salary even if you can't be allowed to practice in the agency temporarily.

[00:07:32] Speaker 00:
Did they have that authority?

[00:07:33] Speaker 00:
I guess I've never seen that happen before.

[00:07:35] Speaker 00:
You're removed.

[00:07:36] Speaker 00:
You're off the rolls.

[00:07:37] Speaker 00:
The agency can't lawfully be paying you a salary.

[00:07:40] Speaker 00:
Someone, the employer decides to challenge it, goes to the MSPB and what, you file for an emergency stay to put me back at work.

[00:07:51] Speaker 00:
Maybe there were procedures for doing that.

[00:07:54] Speaker 00:
I've never heard of it.

[00:07:55] Speaker 01:
I don't think there's a procedure.

[00:07:56] Speaker 01:
But on the one hand, the government says, well, the MSPP can hear this very significant constitutional question of whether you can be deprived of salary when there are no members.

[00:08:05] Speaker 01:
It would seem to me that this lesser question of whether there can be, in effect, a suspension with salary during the full removal hearing process would still be within the jurisdiction.

[00:08:14] Speaker 01:
I think they have the authority to hear that.

[00:08:17] Speaker 01:
So it probably doesn't happen very often for a very simple reason.

[00:08:20] Speaker 01:
This is a unique case.

[00:08:21] Speaker 01:
Very rarely is the criminal conviction vacated and then expunged.

[00:08:26] Speaker 01:
And so this is an unusual circumstance.

[00:08:28] Speaker 01:
But there was no administrative law judge, and there was no MSBP to go to, to do precisely this, to say, well, I've been removed, but since then it's been vacated and expunged, and therefore I should be paid at least during this as an equitable matter.

[00:08:43] Speaker 01:
Because now there's a serious question of whether I should be removed.

[00:08:46] Speaker 00:
And you think an AJ at the board has the legal authority to do that?

[00:08:52] Speaker 01:
No, the board has the legal authority.

[00:08:54] Speaker 01:
The AJ is a fact finder.

[00:08:55] Speaker 01:
I don't think the AJ has that authority, but the board itself probably would.

[00:08:59] Speaker 01:
If the board itself has the power to say, well, you were structurally deprived illegally of salary when there are no members, it certainly would have the power to say you should be paid temporarily if there's an equitable reason.

[00:09:10] Speaker 01:
It's a very rarely litigated, if ever, question, because I think these circumstances are very rare.

[00:09:16] Speaker 01:
The answer is, I think it probably can be done, probably is very rarely done.

[00:09:21] Speaker 01:
Also, I'd stress, most terminated or removed employees don't do this.

[00:09:26] Speaker 01:
If they're convicted of a crime in general, they probably accept the result.

[00:09:31] Speaker 01:
It's very rare, I think, that there's ever any litigation over the removal following a conviction.

[00:09:36] Speaker 00:
Can I ask you about another matter?

[00:09:37] Speaker 00:
The government may have more information than you do on this.

[00:09:41] Speaker 00:
But we lived through this whole thing on appeals, but this is just a small portion of our docket.

[00:09:46] Speaker 00:
And it seems like in this case, the government came in and moved for the AEJ to dismiss without prejudice until the board is ultimately confirmed.

[00:09:58] Speaker 00:
Was that a standard practice that you know of in that case?

[00:10:01] Speaker 00:
And did you have the ability to say, no, no, no, I want to go forward because I want to at least get in the queue?

[00:10:07] Speaker 01:
I can say exactly what happened.

[00:10:11] Speaker 01:
The government made this motion under Lucia doctrine because there had been an internal ruling within the attorney general's office that Lucia required a total stoppage in the MSBP process until there were members.

[00:10:27] Speaker 01:
So the attorney general had made a determination and ultimately the government in MSBP cases began seeking that application.

[00:10:35] Speaker 01:
So this was initiated because I think there was a finding in the AG's office.

[00:10:40] Speaker 01:
During the process, admittedly, the government offered to waive the MSBP hearing process after the AJ case, excuse me, the MSBP process, completely if we wanted to go directly to an appeal.

[00:10:56] Speaker 01:
And we declined that because we wanted the process that's available at the MSBP, which functions as a court.

[00:11:01] Speaker 01:
So I didn't want to lose that level of process for my client.

[00:11:04] Speaker 04:
So this is what I understood you to say.

[00:11:08] Speaker 04:
First, that this is not the only case in which the agency went, filed a request to dismiss appeal to the board.

[00:11:20] Speaker 04:
I don't mean, I mean the initial appeal, right, to the board.

[00:11:26] Speaker 04:
on Lucia grounds.

[00:11:28] Speaker 01:
To my knowledge, this was a practice that was being used by the government.

[00:11:32] Speaker 04:
We haven't seen that before.

[00:11:34] Speaker 04:
But at some point, the government, the agencies, DOJ, decided that it was OK for these matters to proceed to the administrative judge.

[00:11:50] Speaker 04:
And with a little assist from Congress,

[00:11:54] Speaker 04:
the administrative judge's decision could come up to us directly, because there was no full board for that decision to change.

[00:12:03] Speaker 01:
That's not how I understood it.

[00:12:04] Speaker 04:
Well, we had during this period five years' worth of direct appeals from AJP.

[00:12:09] Speaker 01:
No, I apologize.

[00:12:10] Speaker 01:
Yes, I think that's what the government's position was, that one could skip the MSPP.

[00:12:15] Speaker 01:
They would agree to that and come here to direct appeal.

[00:12:19] Speaker 01:
I'm sorry, from the AJ.

[00:12:21] Speaker 01:
from the AJ.

[00:12:22] Speaker 01:
But I declined that in this instance because the MSPP is a corp and I wanted my client to have the benefit of that first level review where there is probably greater discretion to change the result than there would be here.

[00:12:34] Speaker 01:
And so I felt that it was not, although I appreciated the offer, I didn't think it was fair to my client because we lose a level of due process.

[00:12:41] Speaker 01:
So I hope that's clarified.

[00:12:43] Speaker 00:
It's a... Well, the government may have a little more information than you did in terms of what their standard practice was, so we'll ask them.

[00:12:49] Speaker 00:
Right.

[00:12:49] Speaker 01:
My impression was that there were other cases where the Lucia doctrine was applied.

[00:12:54] Speaker 01:
Okay.

[00:12:54] Speaker 01:
Thank you.

[00:12:55] Speaker 01:
Thank you.

[00:12:55] Speaker 01:
You're into your rebuttal, so Mark is waiting for you.

[00:12:57] Speaker 01:
Thank you.

[00:13:20] Speaker 02:
May I please the court?

[00:13:22] Speaker 02:
In this case, the appellant seeks to undermine the CSRA's integrated scheme.

[00:13:25] Speaker 00:
Can we start with just where we left off?

[00:13:27] Speaker 00:
Sure.

[00:13:27] Speaker 00:
Just in terms of our general information about what the practice was.

[00:13:31] Speaker 00:
So after Lucia and before McIntosh or whatever our opinion was that said, no, no, no, this is okay,

[00:13:39] Speaker 00:
Was that the uniform practice by the Justice Department to go in and ask for dismissal without prejudice?

[00:13:46] Speaker 02:
Well, the Justice Department wasn't the employing agency in all these cases, but the appellant's employing agency, because this information is still under seal, that was a practice in cases where they were the

[00:14:01] Speaker 02:
the employer.

[00:14:02] Speaker 00:
So it was just a agency by agency basis determination as to how they wanted to proceed.

[00:14:08] Speaker 00:
But who was construing what was compelled to be done under Lucia?

[00:14:11] Speaker 00:
That must have come from DOJ.

[00:14:13] Speaker 02:
I don't know where the actual opinion came from.

[00:14:17] Speaker 02:
I mean, the appellants represented that it's from DOJ.

[00:14:20] Speaker 04:
But what Lucia requires cannot possibly have been an agency by agency determination.

[00:14:28] Speaker 02:
No, but how do you handle that as a litigation strategy?

[00:14:30] Speaker 02:
That was an agency-by-agency determination.

[00:14:33] Speaker 04:
Even when DOJ is doing the representing, as it always does, of the agency?

[00:14:37] Speaker 02:
In the Federal Circuit, but not within the MSPB itself.

[00:14:40] Speaker 02:
Not to the board?

[00:14:41] Speaker 02:
Not before.

[00:14:42] Speaker 02:
The agencies represent themselves before the board.

[00:14:44] Speaker 00:
So as far as you can tell, in some cases during this whole interim period,

[00:14:49] Speaker 00:
They did go forward, right?

[00:14:51] Speaker 00:
The agencies did go forward with their cases before the AJ.

[00:14:55] Speaker 00:
And then the party's employee had the ability to appeal the AJ's decision in the absence of the board.

[00:15:03] Speaker 00:
Because this is just Toronto putting up.

[00:15:05] Speaker 00:
We were seeing cases come up.

[00:15:07] Speaker 00:
Yes, I understand.

[00:15:09] Speaker 02:
That was the case.

[00:15:12] Speaker 02:
Certainly, the MSPB, the administrative judges, continue to operate and continue to decide cases, even when the board lacked a quorum.

[00:15:19] Speaker 00:
Can I ask just another technical question that's outside of this case?

[00:15:23] Speaker 00:
When the board got back, it did a few things.

[00:15:26] Speaker 00:
And one of the things was to, I don't know, retroactively or whatever, reinstate AJs or do something about AJs.

[00:15:34] Speaker 00:
Why was that?

[00:15:35] Speaker 00:
Was that only the case for AJs that had been hired during the interim period, or did they have to do that for all of the AJs?

[00:15:41] Speaker 02:
I'm not entirely sure.

[00:15:42] Speaker 02:
I believe it was during the period for administrative judges who were hired during the period when the board locked a quorum, they ratified their hiring.

[00:15:50] Speaker 02:
So even if they were inferior, they're not principal officers, but to the extent that they were inferior officers, then the ratification, I guess, affirmed whatever they had done when they were hired.

[00:16:04] Speaker 02:
prior to the quorum being restored.

[00:16:06] Speaker 00:
Now I'd like to talk about your case.

[00:16:07] Speaker 00:
Can we start with you?

[00:16:08] Speaker 00:
Yes.

[00:16:09] Speaker 00:
Because why, at least, isn't that aspect of your friend's case not moved if his claim was that they didn't have any authority to hot fire him in the first place when the board was absent, nonexistent?

[00:16:24] Speaker 02:
The claim is moved.

[00:16:25] Speaker 02:
I mean, this case has been litigated in front of the administrative judge.

[00:16:29] Speaker 00:
But even if he, no matter what the outcome of this case,

[00:16:34] Speaker 00:
Under his theory, as I understand it, he still would be entitled to something if his claim that just the fact that the agency took him off the payroll when the board wasn't existent was a violation.

[00:16:51] Speaker 02:
There's no reason why that claim couldn't have been brought in front of the MSPB if he won, for instance.

[00:16:58] Speaker 00:
If he won, the MSPB said... No, but he's saying even if he lost, that doesn't affect his ability to get back pay for a period with... He's charging, at least one of his allegations, is the discharge itself was not lawful.

[00:17:15] Speaker 00:
because there was no board.

[00:17:17] Speaker 00:
That isn't affected or doesn't go away just because he loses at the end of the day, if somehow that would be found to have merit.

[00:17:26] Speaker 02:
Well, the entire point of him not being paid was because he was removed.

[00:17:30] Speaker 02:
So if the removal was improper, either because there wasn't enough evidence or because his criminal conviction was expunged, or because- No, what if the removal is improper because there's no board?

[00:17:40] Speaker 00:
Because there's no board.

[00:17:41] Speaker 02:
Yes, that's still his removal, though.

[00:17:43] Speaker 02:
So if it's a removal challenge,

[00:17:45] Speaker 02:
then the board has to decide it.

[00:17:49] Speaker 02:
I mean, that's what the CSRA provides.

[00:17:51] Speaker 02:
Any removal challenge, for whatever reason, has to go to the board.

[00:17:54] Speaker 03:
In this parallel proceeding at the board, did the appellant raise that argument?

[00:17:59] Speaker 03:
As I understand it, he didn't.

[00:18:01] Speaker 03:
What is the status of that proceeding?

[00:18:03] Speaker 03:
Is it finally concluded?

[00:18:04] Speaker 02:
It's finally concluded before this court.

[00:18:07] Speaker 02:
It's under number 25.

[00:18:12] Speaker 03:
And so in that case, he, of course, challenged his removal, but not on this ground about the structural legal question of whether the board or the

[00:18:31] Speaker 03:
time when the MSPB left the quorum.

[00:18:34] Speaker 02:
He hasn't filed his brief yet, but he didn't raise that argument when he was presenting it to the MSPB.

[00:18:39] Speaker 02:
So that would be a new argument.

[00:18:40] Speaker 04:
Do I remember right in your brief you acknowledged that he could have and that the board could have, in fact, ruled on that?

[00:18:48] Speaker 02:
Yes.

[00:18:48] Speaker 02:
OK.

[00:18:49] Speaker 02:
Yes, because it's a removal.

[00:18:50] Speaker 02:
It's the adverse action.

[00:18:52] Speaker 02:
So whatever the reason for the removal, whether it's because there's a facial constitutional challenge like in Elgin or in

[00:19:00] Speaker 02:
or in any other of these cases where they're challenging or read where the adverse action stems from the removal, the failure to receive payments, those are all cases that the board has exclusive jurisdiction to consider.

[00:19:15] Speaker 04:
So explain again how anything that went on or could have gone on in the board makes this case moot.

[00:19:27] Speaker 02:
Oh, it makes it moot because to the extent that he won and the board said,

[00:19:36] Speaker 02:
You were right, you shouldn't have been removed for whatever reason because the agency didn't have authority to remove in the absence of a board quorum for whatever reason.

[00:19:45] Speaker 02:
And he got the relief that he would be entitled to receive before the board, back pay, attorney's fees.

[00:19:51] Speaker 02:
What would be left for the court of federal claims to do?

[00:19:54] Speaker 04:
So if he had gotten all relief, already gotten all relief in another forum, that seems a fairly simple move at this point.

[00:20:03] Speaker 04:
That has not happened.

[00:20:05] Speaker 02:
That's correct.

[00:20:09] Speaker 02:
The question of this is to what happens when?

[00:20:12] Speaker 04:
It sounds to me like what you're saying is that if there are two possible forums, that the case in one of them is moot if the other one remains available or was available.

[00:20:25] Speaker 04:
I don't know.

[00:20:26] Speaker 04:
That doesn't sound like a mootness argument.

[00:20:28] Speaker 02:
Not exactly.

[00:20:29] Speaker 02:
It's a valid argument anyway.

[00:20:30] Speaker 02:
The question of what happens to an employee when the MSPB lacks a quorum.

[00:20:37] Speaker 02:
Where do they go?

[00:20:38] Speaker 02:
What do they do?

[00:20:39] Speaker 02:
How do they challenge those decisions?

[00:20:40] Speaker 02:
The fact that the quorum was restored, that form is now no question as to whether or not it's available.

[00:20:48] Speaker 02:
That resolves any question about whether or not the court of federal claims is open.

[00:20:54] Speaker 02:
for an employee to challenge their removal there.

[00:20:57] Speaker 04:
Why?

[00:20:58] Speaker 02:
Why?

[00:20:58] Speaker 02:
Because they've already challenged the removal before the MSPB.

[00:21:02] Speaker 02:
So the court doesn't assume to decide that jurisdictional question.

[00:21:05] Speaker 04:
I get the point if the reason that the board's openness negates jurisdiction under the Tucker Act, the Fausto-Elgin point, which if you're right about, there's no jurisdiction.

[00:21:23] Speaker 04:
And we don't need to talk about moodness.

[00:21:25] Speaker 04:
Without that, though, I don't understand the mootness point.

[00:21:29] Speaker 02:
The best I could provide to you at this point is the question of whether or not the court doesn't need to necessarily reach what happens and whether or not the form of the Court of Federal Claims is open when there's a lack of a board quorum, because the restoration of the board quorum resolves any potential need to go to the Court of Federal Claims.

[00:21:54] Speaker 04:
I'm just interested to do this one more time.

[00:21:57] Speaker 04:
I'm not aware of a mootness principle that says when two forums are open, are available, the dispute in one of them is moot because there is a second forum that's available.

[00:22:12] Speaker 02:
The dispute that's moot isn't about whether or not the removal is proper.

[00:22:17] Speaker 02:
It's whether or not the court of federal claims has jurisdiction in these kinds of circumstances.

[00:22:25] Speaker 04:
But does the Back Pay Act reach a request for back pay when the underlying violation is a constitutional one?

[00:22:36] Speaker 02:
When the underlying violation.

[00:22:37] Speaker 04:
As opposed to a statutory one.

[00:22:41] Speaker 02:
I'm not sure entirely how to answer the question.

[00:22:44] Speaker 02:
The Back Pay Act requires that there's an unjustified or unwarranted employment action that's decided by an appropriate authority.

[00:22:52] Speaker 02:
In Foster, the Supreme Court said that the Court of Federal Claims is not an appropriate authority to make that type of determination.

[00:22:59] Speaker 02:
So that's why the Back Pay Act really isn't applicable here as a basis of Court of Federal Claims jurisdiction.

[00:23:08] Speaker 02:
And the case that's cited for that proposition by the appellant is testing.

[00:23:13] Speaker 02:
But testing, first of all, didn't reach the Back Pay Act.

[00:23:17] Speaker 02:
And more importantly, test it because it would reach the Classification Act.

[00:23:21] Speaker 02:
And testing was decided in 1976, which was two years before the CSRA came around and required that all of these removal challenges or all challenges to adverse personnel actions be brought before the board.

[00:23:34] Speaker 02:
The other points I just want to cover is, first of all, in Elgin, the Supreme Court said that there is no exception to this.

[00:23:45] Speaker 02:
Everything that's about a removal, whether it involves a facial constitutional challenge, which this case does not, it still goes before the board.

[00:23:54] Speaker 02:
There's no independent jurisdiction to consider it.

[00:23:56] Speaker 02:
The second point, the agency's removal authority isn't connected to the board's quorum.

[00:24:03] Speaker 02:
The board doesn't... But that's the merits point.

[00:24:07] Speaker 02:
Sorry, I thought we moved on to the merits or to the jurisdictional arguments.

[00:24:13] Speaker 04:
The argument that it is incorrect to say that any employee may not be removed

[00:24:22] Speaker 04:
when there is no board available, that's the argument about whether the statutes authorize a removal just because one of the statutes may be currently inoperative, namely the board review statute.

[00:24:40] Speaker 04:
What does that have to do with it?

[00:24:42] Speaker 04:
But that question wasn't reached, and it's not before us.

[00:24:45] Speaker 02:
Well, it was reached as to whether or not the court of federal claims could consider it.

[00:24:50] Speaker 04:
Yes, that's right.

[00:24:52] Speaker 02:
Right.

[00:24:53] Speaker 04:
So what's the role of the takings claim in this case?

[00:24:58] Speaker 02:
The theory would be that he has a property interest in his employment.

[00:25:05] Speaker 04:
Do we have to decide that?

[00:25:07] Speaker 04:
Or is there some ground on which we can not can.

[00:25:11] Speaker 04:
I mean, you have an answer on taking that says he has to concede that it was lawful.

[00:25:19] Speaker 04:
I want to put that aside.

[00:25:20] Speaker 04:
I understand.

[00:25:20] Speaker 04:
Does one of the other arguments take care of the takings assertion?

[00:25:27] Speaker 04:
Does, for example, Fausto Elgin or Elgin take care of it, or what?

[00:25:34] Speaker 02:
Yes, because to the extent that he's making an argument about his removal, it belongs in the MSPB under Elgin.

[00:25:42] Speaker 02:
No matter what the underlying theory is, to the extent that it's a challenge to his removal, it belongs in Elgin.

[00:25:50] Speaker 02:
It belongs in the MSPB under Elgin.

[00:25:58] Speaker 02:
Yeah, just the final point, because there's questions about the authority of the agency.

[00:26:03] Speaker 02:
So I just want to clarify, there are three separate issues.

[00:26:06] Speaker 02:
There is the authority of the agency to remove, the authority of the administrative judge to make a first decision as to whether or not the removal was valid, and then there is the authority of the board to act in reviewing the administrative judge's decision.

[00:26:24] Speaker 02:
And so the cases that the appellant cites, like Noel Canning, those don't apply here.

[00:26:30] Speaker 02:
First of all, they don't apply here because the Supreme Court already said in Elgin that whatever your challenge is about authority, it belongs in the board.

[00:26:38] Speaker 02:
But Noel Canning

[00:26:40] Speaker 02:
In those cases, the analogy would be if the board without a quorum had already reviewed the administrative judge's decision and then took some action on it, then perhaps there would be a challenge as to whether or not the board had authority to take the action that's assigned for the board to take by law.

[00:26:58] Speaker 02:
But that's not the case here.

[00:27:00] Speaker 02:
There's no analogy to a matter where the quorum, the board's quorum, has some sort of

[00:27:10] Speaker 02:
has some sort of effect on the agency statutory authority to manage its personnel.

[00:27:18] Speaker 02:
So that's just wanted to highlight that.

[00:27:20] Speaker 00:
Just to clear up in this again, less about this case and more about just because we do all these MSPV appeals.

[00:27:26] Speaker 00:
Is there authority under its regs or in your view under the statute, is there some injunctive authority that the board has or something that you can go up and say, I'm so right that temporarily you ought to put me back in my job while we're adjudicating this?

[00:27:42] Speaker 02:
I believe that an administrative judge, I don't think the full board, but that body has some sort of interim relief that it can provide under a set of unique circumstances that are provided by either statute or regulation.

[00:27:59] Speaker 02:
But they can provide some sort of interim relief in certain cases.

[00:28:05] Speaker 00:
Thank you.

[00:28:07] Speaker 02:
Thank you.

[00:28:10] Speaker 02:
We request that the court affirm the judgment below.

[00:28:21] Speaker 01:
I'd like to know, with respect to Elgin, which a lot of the government's argument is based on, Elgin dealt with the constitutionality of firing someone because of their civil disobedience by not registering for the Selective Service.

[00:28:34] Speaker 01:
There, the constitutional question is immersed within the personnel issue.

[00:28:39] Speaker 01:
This is different.

[00:28:40] Speaker 01:
The constitutional question here has nothing to do with the personnel issue.

[00:28:43] Speaker 01:
The constitutional question is whether if the disciplinary process doesn't exist because the MSPP doesn't exist, is there legal power to deprive someone of salary?

[00:28:53] Speaker 01:
And it is a constitutional right to hold salary.

[00:28:55] Speaker 01:
That's why, in fact, we have a back pay act in the first place.

[00:28:59] Speaker 01:
because one can't be deprived in an unwarranted manner of salary.

[00:29:03] Speaker 01:
The Fifth Amendment protects the government employee's right to the salary.

[00:29:06] Speaker 01:
It's not like a private employer would have to sue for breach of contract.

[00:29:10] Speaker 01:
There's a Fifth Amendment right to that salary, and that's the essence of this case.

[00:29:14] Speaker 01:
that here, if the agency doesn't exist, that means the methodology by which Congress said termination and removal can take place also doesn't exist.

[00:29:23] Speaker 01:
And this is very important because Congress wanted a two-step process.

[00:29:26] Speaker 01:
It was not willing to let a supervisor say, you are removed.

[00:29:29] Speaker 01:
There are all sorts of interpersonal reasons why that could happen.

[00:29:32] Speaker 01:
It required the agency on the employee's demand prove its case in an independent body, the MSPB, that didn't exist.

[00:29:40] Speaker 01:
So Congress's two-step process for removal was no longer in existence.

[00:29:45] Speaker 01:
And therefore, under the reasoning intestine, there is an unwarranted deprivation, because the deprivation of salary took place at a time when the mechanism

[00:29:54] Speaker 01:
to remove was not legally functioned.

[00:29:57] Speaker 01:
And so we fail within the jurisdiction of the Court of Federal Claims.

[00:30:01] Speaker 03:
The merits of our- The MSPB lacked a quorum for one week.

[00:30:06] Speaker 03:
And within that week, that's when the removal here by the agency took place.

[00:30:12] Speaker 01:
I guess that falls in the category of looking at the kind of most extreme example to judge a broader case.

[00:30:20] Speaker 03:
We're talking about a five year- I'm trying to understand the underlying principles

[00:30:24] Speaker 01:
behind your argument?

[00:30:25] Speaker 01:
I think that a one-week loss of jurisdiction is de minimis.

[00:30:30] Speaker 01:
It even happens in Congress.

[00:30:34] Speaker 01:
The Republican majority might disappear for a couple of months, for example, because there may be resignations until new special elections.

[00:30:40] Speaker 01:
So temporary problems arise.

[00:30:42] Speaker 01:
I don't think we could judge a five-year loss of jurisdiction by that same measure.

[00:30:47] Speaker 01:
I mean, we were facing a deadlock in Congress, and one on year after year after year.

[00:30:51] Speaker 01:
Hundreds of employees were in a sort of Netherland or Netherworld of the inability to get any remedy.

[00:30:57] Speaker 01:
So I think that if it was a one week deprivation or lack of jurisdiction, I think it would fall into a de minimis category because that would just be between the resignation of one member and the opportunity to swear someone in, there was a few days gap.

[00:31:11] Speaker 01:
But here we're dealing with a structural question.

[00:31:12] Speaker 01:
Congress was utterly refusing to approve any members to the MSPP for years.

[00:31:18] Speaker 01:
And so the whole Fifth Amendment right of the employee to have this two-step process to protect the employee was gone.

[00:31:25] Speaker 01:
In that very real way, there was no warranted basis for deprivation of salary.

[00:31:29] Speaker 01:
That Fifth Amendment interest was impugned by the government.

[00:31:33] Speaker 01:
That's what this case is about.

[00:31:34] Speaker 01:
Now, the merits of that, whether the loss of membership does make it unwarranted, would have to be decided presumably by the Court of Federal Claims if this court remands.

[00:31:44] Speaker 03:
Is there a reason why you didn't pursue this theory

[00:31:48] Speaker 01:
Yes, because we were in the Court of Federal Claims beforehand, and Judge Dietz did not rule on this question of exclusive jurisdiction to the MSPP.

[00:31:59] Speaker 01:
We had no reason to believe we would be compelled to seek that route exclusively.

[00:32:03] Speaker 01:
Judge Dietz, in fact, did not rule on it.

[00:32:05] Speaker 01:
He simply said the Court of Federal Claims has no jurisdiction because this is not a money-mandating action.

[00:32:11] Speaker 01:
And I don't think, so we didn't bring it because frankly we were never told by the court of jurisdiction of our case, the court of federal claims, that we had, that was our exclusive remedy.

[00:32:21] Speaker 01:
We didn't have that fear that we were facing a legal ruling that would force us into the MSBP on this issue.

[00:32:27] Speaker 01:
If this court says that is the exclusive jurisdiction, and this becomes a final stage, and I think we would go back, but I don't think we were required.

[00:32:36] Speaker 01:
I would like to point out something further.

[00:32:38] Speaker 01:
Under new process, steel, narrow canning, and free enterprise, these are issues that don't necessarily get heard by the agency.

[00:32:46] Speaker 01:
Under free enterprise, it's a collateral question if it's not directly related to the personnel removal.

[00:32:51] Speaker 01:
And so, unlike Elgin, where the

[00:32:54] Speaker 01:
constitutional question of civil disobedience was tied into the removal.

[00:32:59] Speaker 01:
You were removed because you broke the law.

[00:33:02] Speaker 01:
Here the constitutional question is irrelevant in terms of the removal.

[00:33:05] Speaker 01:
It stands outside of it.

[00:33:06] Speaker 01:
So it's collateral as the Supreme Court held in Free Enterprise Fund.

[00:33:10] Speaker 01:
So I don't think we were required to go to the MSPP at all under any reasonable examination of prevailing law.

[00:33:17] Speaker 01:
I think it would be unjust for the appellant here to lose his rights.

[00:33:21] Speaker 00:
So what remedy do you get now?

[00:33:23] Speaker 00:
Let's just say, hypothetically, we would agree with you.

[00:33:25] Speaker 00:
What happens in this case now?

[00:33:27] Speaker 01:
Well, there is a separate appeal on the merits of the removal, putting that aside, assuming we lose that, for the sake of argument.

[00:33:34] Speaker 01:
We still have an independent claim that during that five-year period, when the removal process could not legally be used, our client lost his salary in an unwarranted manner.

[00:33:44] Speaker 00:
And you're saying that the Court of Federal Claims should adjudicate that, not the Board.

[00:33:49] Speaker 00:
You had an opportunity to bring that before the Board and you didn't.

[00:33:52] Speaker 01:
Well, we went to the Court of Federal Claims before we went to the Board came back.

[00:33:55] Speaker 00:
So you're seeking in this case is put this back in the Court of Federal Claims to adjudicate

[00:34:05] Speaker 00:
just the issue of because you've already lost on the merits.

[00:34:09] Speaker 01:
Right.

[00:34:09] Speaker 01:
Count four is gone to the extent it was collateral jurisdiction and court of federal claims that's gone.

[00:34:14] Speaker 01:
Yes.

[00:34:14] Speaker 01:
If I interrupt you, I'm sorry.

[00:34:16] Speaker 00:
So what would be left would be the claim from the time

[00:34:20] Speaker 00:
He was removed until the time the board quorum was there, that he should get back pay for that, because there was no authority for the agency to remove him.

[00:34:31] Speaker 00:
And the Court of Federal Claims should adjudicate that claim.

[00:34:34] Speaker 01:
That is precisely the claim.

[00:34:35] Speaker 01:
And in fact, under Calderon and Scientology,

[00:34:39] Speaker 01:
If I may just make one reference to case law, under Scientology, for example, the Supreme Court said a claim's not moot if there's some remedy within the scope of the broader causes of action that's still valid.

[00:34:51] Speaker 04:
I was just really trying to understand that.

[00:34:56] Speaker 04:
I don't think this came up in any of the briefs.

[00:34:58] Speaker 04:
Does 28 USC 1500 have any bearing here?

[00:35:03] Speaker 01:
I honestly don't know.

[00:35:05] Speaker 01:
because of hand, I don't recall what it says.

[00:35:07] Speaker 04:
That's the one that basically says when there are similar actions, similar enough actions in claims court and somewhere else, depending on timing, other things, that can't be, we don't allow simultaneous similar actions.

[00:35:25] Speaker 04:
But if you haven't explored it, I don't want to.

[00:35:27] Speaker 01:
I haven't explored it, but my feeling is that the MSPP doesn't really have authority or exclusive authority over this type of question, which is outside of the personnel action.

[00:35:36] Speaker 01:
So my answer would be we can do this.

[00:35:39] Speaker 01:
And it's a Hobson's choice.

[00:35:40] Speaker 01:
Sometimes one doesn't even know where to go.

[00:35:42] Speaker 01:
If we went to district court on a due process claim, the government might say we belong in the Court of Claims.

[00:35:46] Speaker 01:
And if we're in the MSBP, the government might say that's a structural claim.

[00:35:51] Speaker 01:
You have to go to the district court itself.

[00:35:53] Speaker 01:
So we have to choose to be somewhere.

[00:35:55] Speaker 01:
And I think if it's reasonable to assume jurisdiction, the court should recognize that.

[00:36:00] Speaker 01:
Thank you.