[00:00:00] Speaker 03:
Our next case for argument is 23-1860 Campbell versus United States Postal Service.

[00:00:27] Speaker 00:
We're here today on three issues for this court to consider I will say issues one and three are the most

[00:00:42] Speaker 00:
I think the strongest issues.

[00:00:44] Speaker 00:
I'm happy to talk about all three, of course.

[00:00:46] Speaker 00:
This is an employment case, as I'm sure the court is aware.

[00:00:50] Speaker 00:
And the first issue, I think, is most germane, and that is that Ms.

[00:00:54] Speaker 00:
Campbell never had a neutral and unbiased decision maker.

[00:01:00] Speaker 00:
Now, in the 2023 decision,

[00:01:04] Speaker 00:
The MSPB says, well, you know, that's a new issue and we're not going to review it.

[00:01:10] Speaker 00:
So the 2023 decision, we're not going to get into whether or not she had an unbiased person who decided to terminate her.

[00:01:18] Speaker 00:
That wasn't brought up down below.

[00:01:21] Speaker 01:
it brought up to the initial administrative judge?

[00:01:25] Speaker 00:
In the 20 it was and also in the 2016 opinion.

[00:01:28] Speaker 01:
I thought you challenged the bias of the or that the proposing official was the wrong one initially and then you changed your argument on your petition for review to the deciding official.

[00:01:40] Speaker 00:
I believe if you look at the 2016 opinion I think that the appendix

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The court actually, or the MSPB says, a parent has failed to submit any evidence that she was actually biased, that she actually had a prejudice against her.

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So the bias and the prejudice argument was made going back prior to 2016 and the initial decision.

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But in the 2013 decision, they say, no, that was weighted.

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that it was waived and there was no evidence brought up to this.

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In my brief, I point out that an email was sent before any criminal

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case was charged before any predisciplinary investigation occurred, that Ms.

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Reed sent an email saying, how do we terminate Ms.

[00:02:24] Speaker 00:
Campbell?

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And that's mentioned in the brief that I filed with this court.

[00:02:28] Speaker 04:
Besides the email that you're talking about right now from Ms.

[00:02:31] Speaker 04:
Reed, what other evidence do you have to support your argument that there was bias?

[00:02:37] Speaker 00:
Other than the email saying, what do we have to do to terminate her?

[00:02:39] Speaker 00:
I don't know, but that's pretty strong evidence.

[00:02:42] Speaker 04:
Okay, so that's the only piece of evidence you're relying on.

[00:02:45] Speaker 00:
I mean, I think so.

[00:02:46] Speaker 00:
I mean, I will say I was not counseled during the pre-disciplinary initial investigation, but I've said I've been on this case for some time, so I was not privy for that.

[00:02:55] Speaker 00:
But I think an email, it's like the old West joke, we catch a cattle rustler, like we should execute him.

[00:03:02] Speaker 00:
And the sheriff says, no, let's give him a fair trial and then we can execute him.

[00:03:06] Speaker 00:
I mean, we're going to execute her no matter what, but we'll just pretend to have a fair trial before we bring out and give the death sentence.

[00:03:13] Speaker 01:
I mean, didn't, at the hearing, that deciding official testify that she hadn't pre-decided the case?

[00:03:21] Speaker 00:
Well, she said, yeah, I was biased against her, but I'm going to still have an open mind.

[00:03:25] Speaker 01:
I don't think she said she was biased against her.

[00:03:28] Speaker 00:
There is in the 2016 opinion and 23, it seems to be accepted that these people don't like each other.

[00:03:36] Speaker 00:
These two people don't like each other.

[00:03:37] Speaker 04:
And in fact, can we be precise in terms of the language?

[00:03:39] Speaker 04:
Can you point us to a page?

[00:03:43] Speaker 00:
Well, I can.

[00:03:44] Speaker 00:
I think that the email.

[00:03:50] Speaker 00:
I'll look for that as I'm going through where the email is actually discussed.

[00:03:56] Speaker 00:
It also comes up, and I think this goes to bias as well, that this arrest was publicized and that her agency put out a press release publicizing this criminal charge and then brought up that Stassi or Campbell brought bad publicity to the agency.

[00:04:15] Speaker 00:
But Ms.

[00:04:16] Speaker 00:
Campbell didn't

[00:04:18] Speaker 00:
this theft.

[00:04:20] Speaker 01:
Well, did this specific deciding official issue the press release?

[00:04:26] Speaker 00:
Well, it was someone in the agency.

[00:04:28] Speaker 01:
Well, can we get straight to your argument about this specific deciding official?

[00:04:34] Speaker 01:
Because I don't see why an email from a higher level supervisor, when they find out that somebody has committed serious misconduct,

[00:04:46] Speaker 01:
sends to I don't know who what the HR office whoever saying how do we terminate this person because they've determined that this is a terminal offense and then and then they find out the information this is you know maybe they should have said what steps do we need to undertake to determine what's the appropriate discipline for this but that's not the way people talk in real life I mean if this is a potential

[00:05:13] Speaker 01:
an offense that supports a potential termination, and I think it's clear it does.

[00:05:19] Speaker 01:
You haven't cited any agency table of penalties, I think, that shows this isn't a possible offense for what she did.

[00:05:25] Speaker 01:
Then what's wrong with saying, how do we terminate her?

[00:05:30] Speaker 01:
I mean, the answer could have been back from the HR person that says, you can't.

[00:05:34] Speaker 01:
This is a first offense.

[00:05:36] Speaker 01:
Under our table or our penalties, she can only be suspended.

[00:05:40] Speaker 00:
There's a lot of issues in your question.

[00:05:42] Speaker 00:
One is, I cite multiple cases where you have postal workers who, apparently violence is not as big a deal as this misdemeanor theft offense.

[00:05:49] Speaker 01:
The other cases aren't what I'm asking about.

[00:05:52] Speaker 01:
Do you have something that suggested that it was completely unlawful to terminate this person who was a high level, wasn't she the postmaster?

[00:06:02] Speaker 00:
At two locations, exactly right.

[00:06:04] Speaker 01:
So she was the postmaster between she's in charge of that location

[00:06:08] Speaker 01:
And she's improperly using her government-issued finance.

[00:06:13] Speaker 01:
Is it a credit card?

[00:06:14] Speaker 00:
It's called a Voyager card.

[00:06:15] Speaker 00:
She's putting fuel in her car because she has to drive it now between two post offices that are 60 miles away.

[00:06:23] Speaker 01:
She wasn't allowed to use it for that purpose.

[00:06:25] Speaker 00:
And issue two is, and I say I don't want to focus too much on issue two.

[00:06:29] Speaker 01:
No, but let's stick to issue one then.

[00:06:31] Speaker 00:
Well, sure.

[00:06:32] Speaker 01:
What is biased about a deciding official

[00:06:35] Speaker 01:
saying, look, this person is the highest ranking person in the post office.

[00:06:40] Speaker 01:
She has misused her government credit card.

[00:06:44] Speaker 01:
We need to terminate her, because this looks bad for the agency.

[00:06:47] Speaker 00:
And prejudice is to prejudge, to be etymological with you.

[00:06:51] Speaker 01:
So if you're going to ask us to draw a factual inference, whether she prejudged or not, you're going to lose, because she testified that she

[00:07:00] Speaker 01:
did not prejudge this.

[00:07:02] Speaker 01:
And we, if it's a factual question, it's substantial evidence review, and her testimony supports the opposite view.

[00:07:08] Speaker 01:
Isn't that right?

[00:07:09] Speaker 00:
That's the standard of the law.

[00:07:11] Speaker 00:
But so if you say that all you have to do is say, I wasn't prejudiced on that day, and therefore that absolves any problems.

[00:07:17] Speaker 01:
Didn't the administrative judge that heard that testimony find her credible?

[00:07:22] Speaker 00:
That was their finding.

[00:07:24] Speaker 00:
That was their finding.

[00:07:25] Speaker 01:
What can we do?

[00:07:26] Speaker 01:
We don't overturn credibility findings when the administrative judge heard.

[00:07:30] Speaker 01:
It was live testimony, right?

[00:07:32] Speaker 00:
That's correct.

[00:07:32] Speaker 01:
So the administrative judge sat there, listened to this deciding official, testified that she was not biased and that she kept an open mind and believed that person and did not believe your client.

[00:07:44] Speaker 00:
I understand what you're saying, but certainly

[00:07:48] Speaker 00:
We see it as a bias factor.

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And of course, that wasn't the person that was supposed to make the termination decision.

[00:07:57] Speaker 00:
They say, well, sure, that wasn't the person, they appointed the incorrect person to make the termination order, but that was harmless error as well because anyone would have terminated her in these circumstances.

[00:08:07] Speaker 00:
Let me take your issue one.

[00:08:09] Speaker 00:
We'll go to issue three because I think it is part and parcel to this.

[00:08:13] Speaker 00:
We have cases that I'm citing over and over again where you have postal workers who are threatening violence, who are committing violence, who are challenging supervisors.

[00:08:21] Speaker 00:
Are they terminated on first offense?

[00:08:23] Speaker 00:
No, not in any of the cases that I cite.

[00:08:25] Speaker 00:
They're given last chance agreements.

[00:08:26] Speaker 00:
They're given demotions.

[00:08:27] Speaker 00:
They're given suspensions.

[00:08:28] Speaker 00:
But Ms.

[00:08:29] Speaker 00:
Campbell, she has 25 years of experience with no disciplinary record at all, and she has a misdemeanor theft offense, which is inexcusable.

[00:08:37] Speaker 01:
What's the standard of our review on this question?

[00:08:39] Speaker 00:
Well, you've got the Douglas Factors, and then you have that standard, but it's the same decision.

[00:08:45] Speaker 01:
But we don't review this de novo, right?

[00:08:47] Speaker 01:
We don't apply the Douglas Factors and review it de novo.

[00:08:50] Speaker 01:
Don't we defer to the agency, deciding the agency selection of penalty unless it's, what's the standard there?

[00:09:01] Speaker 00:
Arbitrary, capricious.

[00:09:03] Speaker 00:
I mean, I think that's what we're looking at here.

[00:09:06] Speaker 00:
I mean, one of the things Douglas Factors, they look at is they say, well, look, this case caused a lot of bad publicity for the Postal Service, but they publicized it.

[00:09:16] Speaker 00:
They're blaming Ms.

[00:09:17] Speaker 00:
Campbell for creating bad publicity for the post office when they sent out a press release.

[00:09:21] Speaker 00:
I mean, does that seem like bad faith?

[00:09:24] Speaker 00:
Does that seem arbitrary or capricious to say, yeah, we publicized her arrest, but it still brought bad publicity due to our press release that we sent out.

[00:09:34] Speaker 00:
It's her first offense, 25 years of an exemplary work record.

[00:09:38] Speaker 00:
Let's terminate her.

[00:09:42] Speaker 00:
Again, this court has to give deference, but it's not unlimited deference.

[00:09:45] Speaker 01:
Honestly, I'm a little sympathetic to you on this penalty point, but I think our hands are pretty tied that we defer to the agency's choice of penalty unless it's so grossly disproportionate or it's not within a table of penalties or something like this.

[00:10:01] Speaker 01:
But clearly, you haven't made an argument that removal is not an appropriate penalty

[00:10:08] Speaker 01:
for a first offense under any table of penalties or things like that.

[00:10:12] Speaker 01:
Do we even have a table of penalties here?

[00:10:15] Speaker 00:
I don't know the answer to that.

[00:10:17] Speaker 00:
I don't know.

[00:10:18] Speaker 00:
I'm citing case law out of this court.

[00:10:20] Speaker 00:
I'm citing case law out of other circuits.

[00:10:22] Speaker 01:
The problem with the case law is they're all different factual circumstances.

[00:10:26] Speaker 01:
And you have an employee who happens to be the highest ranking official in two post offices that holds an extreme position of trust.

[00:10:36] Speaker 01:
And when she misuses government credit cards, that inures badly to the benefit of the agency's reputation.

[00:10:45] Speaker 00:
violence is bad, too.

[00:10:47] Speaker 00:
I mean, theft is bad, misdemeanor theft is bad, threatening violence is bad, too.

[00:10:50] Speaker 00:
And you can say, well, that's apples and oranges.

[00:10:53] Speaker 00:
And I think that's the problem with the Douglas Factors and the Singh Factors is because the discretion just seems to be unlimited.

[00:10:59] Speaker 01:
But we're not going to do anything about that.

[00:11:00] Speaker 01:
We've applied the Douglas Factors since the very beginning, the creation of the MSPB and the creation of the Federal Circuit.

[00:11:07] Speaker 01:
If the Douglas Factors, the agency applies them, and they come up with the penalty as reasoned and supported by the records, we have to affirm it.

[00:11:14] Speaker 00:
But what about saying it's one of the Douglas factors is Campbell brought bad publicity to the agency after we sent out a press release.

[00:11:22] Speaker 00:
I mean, it just seems.

[00:11:24] Speaker 00:
You know, again, I don't want to take a common sense approach on this, but it really seems bad faith to say, I can't believe you brought bad publicity to me after a Senate press release.

[00:11:32] Speaker 00:
It seems like that's we can have different views on that.

[00:11:35] Speaker 00:
It seems to be very bad faith.

[00:11:38] Speaker 00:
Ms.

[00:11:38] Speaker 00:
Campbell had should be retiring right now after 35 years of experience.

[00:11:42] Speaker 00:
But no, she was terminated after 25 years for her first offense, a misdemeanor offense.

[00:11:46] Speaker 00:
didn't have counsel at her case.

[00:11:49] Speaker 04:
Do you have any near comparator that you think, so as opposed to your example of violence, was there some near competitor, comparator that you think we should be looking at in terms of the removal penalty that was imposed?

[00:12:06] Speaker 00:
The three or four cases I cite in my

[00:12:11] Speaker 00:
I think you could also come back and say, well, but was that a postmaster?

[00:12:14] Speaker 00:
Was that a postmaster working at two different post offices?

[00:12:17] Speaker 00:
So it becomes a very complicated analysis where you could say, well, it's not apples to apples.

[00:12:24] Speaker 00:
It's apples to pears or something like that.

[00:12:26] Speaker 00:
I cite several cases in my brief where you have someone with multiple disciplinary problems who are given a last chance agreement, much more serious than the theft offense she committed.

[00:12:36] Speaker 00:
There's no excuse for that.

[00:12:39] Speaker 00:
defense to put fuel in her car to drive 50-60 miles a day to drive from this post office, this other post office due to a labor shortage.

[00:12:47] Speaker 00:
And obviously, I have enough confidence in her.

[00:12:49] Speaker 03:
I have a couple questions about the facts that just aren't super clear to me from the record.

[00:12:53] Speaker 03:
She was eligible to receive mileage reimbursement for making that drive, and there's some testimony in the record to suggest that that process was laborious, took a long time to get your reimbursements.

[00:13:05] Speaker 03:
So I guess, was she double dipping?

[00:13:07] Speaker 03:
or was and what I mean by that is was she submitting mileage reimbursements and using her credit card for gas or was she like look I'm gonna use my credit card for gas because it's a wash at the end of the day I could get mileage back but that's gonna take forever it's gonna be a pain I'll just use my credit card for the gas and then I won't seek mileage I believe the facts and this is a lengthy record but I think that she was charged with misdemeanor theft for theft of about three hundred dollars

[00:13:33] Speaker 00:
And I believe that was all for gasoline.

[00:13:36] Speaker 03:
That's not my question.

[00:13:37] Speaker 03:
The record reflects that she was actually authorized to get per-mile mileage reimbursement.

[00:13:44] Speaker 03:
You can't get per-mile mileage reimbursement and also get gas.

[00:13:48] Speaker 03:
That makes sense.

[00:13:49] Speaker 03:
So what I'm trying to ask you for is did she just say, look, I'm not going to get the reimbursement.

[00:13:54] Speaker 03:
I'm just going to go ahead and use my credit card for the gas.

[00:13:56] Speaker 03:
Or did she try to get both?

[00:13:57] Speaker 03:
I know it's only $300, but it matters a little bit, right?

[00:14:01] Speaker 03:
It matters whether she was trying, because it makes her look less bad if she's like, you know what?

[00:14:06] Speaker 03:
I'm not going to ask for the mileage.

[00:14:08] Speaker 03:
I'm just going to use my credit card for the gas.

[00:14:09] Speaker 03:
I know I shouldn't, but I'm going to do this.

[00:14:11] Speaker 03:
That makes her look less bad than I'm going to sneak an extra $300 out of her.

[00:14:15] Speaker 00:
So I'm trying to figure out which one it is.

[00:14:17] Speaker 00:
It's the former.

[00:14:18] Speaker 00:
Ms.

[00:14:18] Speaker 00:
Campbell did this thing.

[00:14:19] Speaker 00:
She did both.

[00:14:20] Speaker 00:
No, she didn't double dip in this case as far as I know.

[00:14:23] Speaker 00:
It's not in the record, is it?

[00:14:25] Speaker 00:
No, I don't believe that it is.

[00:14:26] Speaker 03:
Well, in the record, there is some testimony about how hard it was to get mileage reimbursement, so I was assuming maybe from that that she didn't pursue the mileage reimbursement.

[00:14:35] Speaker 03:
I didn't know.

[00:14:35] Speaker 00:
Ms.

[00:14:36] Speaker 00:
Campbell thought this was so innocuous she didn't even take a lawyer into court.

[00:14:39] Speaker 00:
She just waited for a lady, I shouldn't use the card.

[00:14:40] Speaker 03:
No, that's not true.

[00:14:41] Speaker 03:
She testified, or there's record evidence that the reason she didn't have a lawyer was because she couldn't afford one.

[00:14:47] Speaker 03:
Not because she thought it was so innocuous that she didn't need one.

[00:14:52] Speaker 00:
There's getting the wing right.

[00:14:54] Speaker 00:
You can get appointed counsel.

[00:14:56] Speaker 00:
There's a US Supreme Court case on that.

[00:14:58] Speaker 00:
She could have had a lawyer at no cost.

[00:15:00] Speaker 00:
She might have said the prices were expensive.

[00:15:03] Speaker 00:
But she went in and pled guilty at arraignment, which I know this isn't a criminal court, but that doesn't happen a lot.

[00:15:09] Speaker 00:
She just went in, I want to get this over with.

[00:15:10] Speaker 00:
I'm working a lot.

[00:15:11] Speaker 00:
I plead guilty at arraignment.

[00:15:12] Speaker 00:
I shouldn't have done it.

[00:15:13] Speaker 00:
I apologize.

[00:15:14] Speaker 00:
It's all good.

[00:15:15] Speaker 03:
And then one last thing.

[00:15:17] Speaker 03:
When she used her credit card for the gas,

[00:15:19] Speaker 03:
Am I correct in understanding the facts that she actually used other employees' PIN numbers in order to effectuate that?

[00:15:26] Speaker 03:
And does that really, then, if somebody does some sort of analysis, is it going to look like they're the ones stealing?

[00:15:33] Speaker 00:
I don't have an answer for that.

[00:15:34] Speaker 00:
That is a question.

[00:15:35] Speaker 03:
Well, she did use other people's PIN numbers.

[00:15:36] Speaker 03:
She didn't put her own in.

[00:15:37] Speaker 03:
So she tried to hide.

[00:15:39] Speaker 03:
She knew it wasn't just that's what I'm trying to get at.

[00:15:41] Speaker 03:
She wasn't just like, look, I'm just going to just go buy this gas because I have to drive back and forth.

[00:15:46] Speaker 03:
She bought the gas and she put in other employees PIN numbers, making them seem like they were the ones buying the gas.

[00:15:53] Speaker 00:
It's something she should not have done.

[00:15:55] Speaker 00:
And actually, you make a good we have no no defense for that.

[00:15:59] Speaker 00:
All right.

[00:16:06] Speaker 03:
Do we have any paper towels?

[00:16:08] Speaker 03:
Jen, will you go get some paper towels?

[00:16:10] Speaker 03:
Hold on, just give me a sec.

[00:16:11] Speaker 03:
We're gonna get this little... Okay, you go ahead.

[00:16:17] Speaker 03:
Are you okay to argue with your wet papers?

[00:16:18] Speaker 03:
Alright, you're okay to argue with your wet papers.

[00:16:20] Speaker 03:
We'll clean up the little mess later.

[00:16:25] Speaker 03:
Your excipient spilled all over the table.

[00:16:31] Speaker 02:
only a patent lawyer left at that thank you none of the rest of us know what it means please proceed your honor this case is about whether the board reasonably found that the Postal Service removed for improper conduct a supervisor who pled guilty to eight instances of theft

[00:16:56] Speaker 03:
I don't think that this is what this case is about.

[00:16:58] Speaker 03:
This case is about, like, I mean, at least he's made it about, you know, was the penalty reasonable in light of what appeared to be some concerning things with the Douglas Factors, like the deciding official, Ms.

[00:17:10] Speaker 03:
Reed, used the fact that there was publicity about this against, you know, supporting her decision to remove her.

[00:17:19] Speaker 03:
And that was inappropriate according to opposing counsel because, for example, the agency was the one who actually did make it public.

[00:17:29] Speaker 03:
So how can you, you know, public notoriety, how can you be making something public and at the same time say the fact that it was made public means I have to fire you now?

[00:17:37] Speaker 03:
That's so this is a process.

[00:17:39] Speaker 03:
I feel like this is more process.

[00:17:41] Speaker 03:
I think, you know, at the end of the day, like you could step back and pretty much anyone could say, Okay, look, I think this employee could have been fired for it.

[00:17:48] Speaker 03:
I think this employee maybe could not have been fired for it, given her long history of good behavior and all the mitigating factors, whatever.

[00:17:55] Speaker 03:
And I don't I mean, I don't think this is just about that.

[00:17:57] Speaker 03:
that, you know, 10,000 foot level, should somebody be fired for this offense or not, I think that he's alleging specific concerns with the process.

[00:18:06] Speaker 02:
So focus on those.

[00:18:08] Speaker 02:
Thank you, Your Honor.

[00:18:08] Speaker 02:
Let me address both of the ways in which he discussed the publicity and the process.

[00:18:12] Speaker 02:
First way was in terms of bias.

[00:18:15] Speaker 02:
The plaintiff argued that somehow the deciding official was biased.

[00:18:19] Speaker 02:
that the immediate supervisor of the petition was passed over because of a bias.

[00:18:24] Speaker 02:
There's no record evidence.

[00:18:26] Speaker 03:
Before I start with bias, I know my question was really long-winded, but let me get you on one specific point.

[00:18:30] Speaker 03:
He said it was error for Ms.

[00:18:32] Speaker 03:
Reed to use against his client in her decision-making under the Douglas Factors the fact that there was publicity over this when it was in fact the agency

[00:18:45] Speaker 03:
that caused all the publicity over this.

[00:18:47] Speaker 03:
So he says that, because here's the thing, sometimes if we find there's even one factor that was misapplied from a procedural standpoint, we have to send the whole thing back, even if it would otherwise be justified.

[00:19:00] Speaker 03:
So he's pointing at this one factor and saying, error here.

[00:19:04] Speaker 03:
So tell me why that wasn't error.

[00:19:05] Speaker 02:
It was an area for a couple of reasons.

[00:19:07] Speaker 02:
First of all, it was not exclusively the agency that created publicity in this case.

[00:19:13] Speaker 02:
Rather, Ms.

[00:19:15] Speaker 02:
Campbell was publicly convicted in court as a matter of public record.

[00:19:19] Speaker 02:
The specific article that they, in their briefs, discuss

[00:19:23] Speaker 02:
as evidence of the publicity was one that, as the administrative judge and the board found, did not just reflect facts in the press release from the agency, but instead found facts in the public record.

[00:19:35] Speaker 02:
So the publicity surrounding the case was certainly not caused by the agency.

[00:19:43] Speaker 02:
Secondly, the agency deciding official did not actually

[00:19:48] Speaker 02:
tried to publicize this case, rather the Office of Inspector General that investigated the conduct as a matter of routine work issued a press release after they concluded that she had committed theft.

[00:20:01] Speaker 02:
That's just something they do once a conviction has been entered.

[00:20:04] Speaker 02:
And the agency certainly has a right to make it clear to the public when evidence of theft has occurred that they are addressing it.

[00:20:12] Speaker 02:
That's part of maintaining the reputation of honesty and integrity before the public and responsible stewardship of tax dollars.

[00:20:18] Speaker 02:
So they had every right to publicize it.

[00:20:22] Speaker 03:
So just to be clear, it was the agency's office of Inspector General.

[00:20:25] Speaker 03:
So it was the agency that sent this information to this website.

[00:20:29] Speaker 03:
That's what it says on page JA26 of this record.

[00:20:32] Speaker 02:
To be clear, they issued a press release, which was available on the website.

[00:20:37] Speaker 02:
They didn't specifically.

[00:20:38] Speaker 03:
Well, I'm looking at the actual findings of the MSPB on page JA26.

[00:20:43] Speaker 03:
And they don't say what you just said.

[00:20:46] Speaker 03:
On page JA26.

[00:20:48] Speaker 03:
The person we're reviewing, the board says, responding to Appellant's argument, this was an unfair factor to consider because the Office of the Inspector General had sent the information to the website.

[00:21:03] Speaker 03:
What am I missing?

[00:21:12] Speaker 02:
I see that your honor, I correct my statement, the Office of Inspector General did send the information, but they sent their press release, they didn't send the statement specifically tailored for the circumstance of this case, they simply provided a copy of the press release.

[00:21:27] Speaker 02:
And again, the article that resulted did not exclusively rely upon that press release, rather it also

[00:21:33] Speaker 02:
looked at evidence of the public record.

[00:21:34] Speaker 03:
Yeah, but if the press release was the inspiration for the article, I mean, if LookThisCleveland.com was sitting back like, I don't remember right on today, and suddenly in their email they get a press release from the post office saying, hey, look, this person stole from us.

[00:21:47] Speaker 03:
We're going to do something about it.

[00:21:48] Speaker 03:
Like, huh, you know, if it's the inspiration for the whole article, if the agency is the one putting out there this publicity, why should the agency then say, oh, Ms.

[00:21:58] Speaker 03:
Reed, look, the public is now really interested in this.

[00:22:01] Speaker 03:
You've got a lot of bad publicity, so we're going to have to fire you.

[00:22:03] Speaker 03:
Why is that a factor?

[00:22:04] Speaker 03:
I mean, it seems pretty circular, like a dog chasing its tail.

[00:22:07] Speaker 02:
Well, of course, Your Honor, there is no evidence why this particular publication went forward with our article.

[00:22:12] Speaker 02:
That is unestablished in the record.

[00:22:13] Speaker 02:
But more importantly,

[00:22:14] Speaker 02:
As the deciding official testified, the existence of the notoriety in the press coverage of the offense was not the reason why she selected removal.

[00:22:24] Speaker 02:
And she testified that even had it not been a matter of the public responding to this article, she still would have selected removal.

[00:22:31] Speaker 02:
So there's no need for the court to be concerned about whether the fact of the notoriety was caused by the agency or not.

[00:22:38] Speaker 02:
the agency would have made the same decision.

[00:22:40] Speaker 03:
Okay, fair enough, and that's a really good response to that one.

[00:22:42] Speaker 03:
Now, why don't you move over to your bias point that you wanted to address before and touch on, I mean, because we don't often see emails like this where the person who's actually going to make the decision before they're even prevented with it says, how do I fire this person?

[00:22:59] Speaker 02:
Well, and I think that the petitioner has now conceded that the email is the only evidence of bias that he has produced or cited to.

[00:23:06] Speaker 02:
And to look specifically at it, I think what you'll see is the email is about the conduct, not about a bias.

[00:23:12] Speaker 03:
Where is the email of the record?

[00:23:14] Speaker 03:
Can you show it to us?

[00:23:15] Speaker 02:
Yes, it is.

[00:24:04] Speaker 02:
It's on appendix 21, Your Honor, in the administrative law judge's decision.

[00:24:09] Speaker 03:
That's not the email.

[00:24:09] Speaker 03:
That's the administrative law judge's decision.

[00:24:11] Speaker 02:
Is the email not on the record?

[00:24:12] Speaker 02:
It's signed to the record.

[00:24:13] Speaker 02:
It's not independently a part of the record, but you can see it quoted there, Your Honor, and it reads, I want a removal for this.

[00:24:21] Speaker 02:
We have to do a PDI, which is a pre-disciplinary interview.

[00:24:26] Speaker 02:
So what she says, I want a removal for this.

[00:24:29] Speaker 02:
And the testimony reflects she was referring to the OIG report about the behavior

[00:24:34] Speaker 02:
that Ms.

[00:24:34] Speaker 02:
Campbell engaged in.

[00:24:36] Speaker 02:
So she's suggesting she wants removal for the conduct of theft.

[00:24:39] Speaker 02:
which is an entirely understandable reaction.

[00:24:42] Speaker 02:
It does not talk about anything that any relationship she had with Ms.

[00:24:46] Speaker 02:
Campbell, any impression she had of Ms.

[00:24:48] Speaker 02:
Campbell, or any prejudice that she had of Ms.

[00:24:50] Speaker 02:
Campbell.

[00:24:51] Speaker 02:
And in fact, what we see from her testimony is that just a month prior to this, Ms.

[00:24:57] Speaker 02:
Reed, the deciding official, had recommended Ms.

[00:25:01] Speaker 02:
Campbell for a position and then concurred in a promotion for her position.

[00:25:05] Speaker 02:
So there's no evidence that she had any bias, quite the contrary.

[00:25:09] Speaker 02:
Quite contrary.

[00:25:10] Speaker 03:
So OK, but maybe there isn't evidence that she had overall bias towards Miss Campbell.

[00:25:18] Speaker 03:
But isn't this I mean, I don't think I would be really excited if my deciding official before hearing any of the evidence in my case say, I want you fired.

[00:25:27] Speaker 03:
I want this person fired for this.

[00:25:29] Speaker 03:
I would be really bummed to be like, wow, I don't I don't know if I'm going to

[00:25:33] Speaker 03:
get a real fair hearing on this.

[00:25:35] Speaker 03:
I don't think is this person really going to consider all my all my mitigating factors?

[00:25:40] Speaker 03:
They've already decided what they want.

[00:25:42] Speaker 03:
I want a removal for this.

[00:25:44] Speaker 02:
Well, regardless of what emotional response one might have to the email, the law doesn't require that.

[00:25:50] Speaker 02:
In fact, what the law says is, if the deciding official, even if they concurred, for instance, with the penalty of demotion, and this was in the Beatty decision, affirmed by the Federal Circuit in 1985,

[00:26:05] Speaker 02:
that initial impression or direction for a penalty does not prejudice or it's not established bias for the deciding official.

[00:26:14] Speaker 02:
A supervisor can change their mind.

[00:26:16] Speaker 04:
In your opinion then you're saying that statement that you quoted from Appendix page 21 is not some sort of prejudgment on what the penalty should be?

[00:26:25] Speaker 02:
I think that that statement is properly reflecting as Miss Reed testified shock at the conduct that was described in the office of Inspector General's report and not a final decision that only removal would do.

[00:26:40] Speaker 02:
And in fact, Miss Reed testified that she kept it open mind.

[00:26:44] Speaker 02:
the court found, the board found that testimony credible.

[00:26:47] Speaker 02:
She testified that she was willing to listen to Ms.

[00:26:50] Speaker 02:
Campbell's defenses.

[00:26:52] Speaker 03:
Where can I see, where in the circuit can I see that testimony?

[00:26:55] Speaker 03:
Can you direct me to the transcript of that testimony?

[00:27:08] Speaker 02:
Yes, she testified in the transcript on page 73 to 74.

[00:27:12] Speaker 02:
that she had not made up her mind when viewing the OIG report.

[00:27:16] Speaker 02:
That was the time in which the email was sent.

[00:27:18] Speaker 02:
She was just shocked.

[00:27:20] Speaker 03:
Do we have that?

[00:27:21] Speaker 03:
I don't have anything on page 73.

[00:27:22] Speaker 02:
It's not part of the appendix in this case because it wasn't discussed or raised by the appellant, but it was a transcript on which the board relied below.

[00:27:33] Speaker 01:
The board cites to that in its opinion, I take it.

[00:27:40] Speaker 01:
It would be helpful if the government actually gave us the record we needed to look at this case.

[00:27:52] Speaker 02:
I appreciate that.

[00:27:53] Speaker 02:
I apologize, Your Honor.

[00:27:55] Speaker 02:
You can see Appendix 21.

[00:27:58] Speaker 02:
the Ministry of Law judge, citing the testimony where Ms.

[00:28:00] Speaker 02:
Reed said that she kept an open mind as a disciplinary process unfolded, citing her testimony and directing costs.

[00:28:12] Speaker 02:
In addition, Ms.

[00:28:12] Speaker 02:
Reed met with Ms.

[00:28:13] Speaker 02:
Campbell or her counsel twice during the process of considering removal, listened to her arguments, she testified, she listened to her arguments.

[00:28:22] Speaker 01:
She simply placed different weight on... This really does, I understand,

[00:28:28] Speaker 01:
are limited review and everything.

[00:28:31] Speaker 01:
This seems a little unfair for a 25-year veteran with no disciplinary issues and a first offense for misusing a credit card for $300.

[00:28:43] Speaker 02:
Well, the court had asked opposing counsel whether there was a table of penalties.

[00:28:49] Speaker 02:
The USPS has no table of penalties.

[00:28:52] Speaker 02:
There was nothing regulatory or policy-wise that suggested

[00:28:57] Speaker 02:
a particular kind of offense, warrants removal.

[00:29:00] Speaker 02:
But in this case, while it was the first offense for which she was disciplined, she committed it on eight separate occasions.

[00:29:08] Speaker 02:
As I believe Judge Moore pointed out, she didn't simply misuse her own Voyager card.

[00:29:15] Speaker 02:
She appropriated the pin numbers for her employees

[00:29:20] Speaker 02:
uh, voyager cars and use that on those eight separate occasions.

[00:29:24] Speaker 04:
Um, but did the testimony below talk about consideration of any last chance agreement?

[00:29:30] Speaker 02:
Uh, there there was no testimony supporting the last chance agreement was considered in this case.

[00:29:36] Speaker 02:
But there's no obligation for the agency to have considered it.

[00:29:39] Speaker 02:
In fact, none of the cases on which the petitioner relies show a last chance agreement as being required or compelled by a court before a removal decision.

[00:29:49] Speaker 02:
And on the few cases where last chance agreements are cited by the petitioner,

[00:29:54] Speaker 02:
They were all in a settlement context, which of course has a different standard for penalties.

[00:29:59] Speaker 03:
Now, do you know the answer to the question that your other counsel didn't know?

[00:30:02] Speaker 03:
It's a fact question.

[00:30:03] Speaker 03:
There's some evidence in the record that suggests she was allowed to get per diem or per mileage.

[00:30:09] Speaker 03:
You know, that look, she was pursuant to her job driving back and forth between these two different.

[00:30:15] Speaker 03:
post offices, right?

[00:30:17] Speaker 03:
And so she was allowed to actually get reimbursed for that driving.

[00:30:20] Speaker 03:
Is there evidence of whether she did?

[00:30:22] Speaker 03:
Because I remember reading something in this record, but I don't remember where, where it was talking about, where she testified that it was just really hard to go through all the rigmarole to seek that reimbursement.

[00:30:32] Speaker 03:
So I guess what I'm trying to get at is

[00:30:34] Speaker 03:
Did she just shortchange it, like, try to make it simpler?

[00:30:37] Speaker 03:
Like, OK, I'm just going to use my credit card for the gas.

[00:30:39] Speaker 03:
I won't charge the government for the mileage.

[00:30:41] Speaker 03:
I'll just use my credit card for the gas.

[00:30:42] Speaker 03:
So it's a wash.

[00:30:43] Speaker 03:
Like, was that what was going through?

[00:30:45] Speaker 03:
Is there any testimony?

[00:30:47] Speaker 03:
Did she, my specific question is, did she also seek reimbursement for mileage in addition to using her credit card for gas?

[00:30:55] Speaker 02:
She did not.

[00:30:57] Speaker 02:
The question of whether she could have requires us to answer whether she was appropriately

[00:31:02] Speaker 02:
you know, using mileage for post office business.

[00:31:05] Speaker 02:
And while Ms.

[00:31:05] Speaker 02:
Campbell did give that testimony, no one else gave that testimony on the record.

[00:31:10] Speaker 02:
There's no evidence to support that.

[00:31:11] Speaker 02:
All of the gas charges she made were all in furtherance of post office.

[00:31:16] Speaker 03:
No, but why isn't that matter?

[00:31:17] Speaker 03:
Like why didn't why if what you would use to make matters a lot to me, it matters a lot to me and it should.

[00:31:23] Speaker 03:
Why would didn't it matter to the decision maker that she wasn't necessarily?

[00:31:28] Speaker 03:
I mean, we're talking about less than $300 for a lady that was driving back.

[00:31:31] Speaker 03:
How many miles was it between these two post offices?

[00:31:34] Speaker 03:
I don't know.

[00:31:35] Speaker 02:
We don't dispute that the total was $326, I believe.

[00:31:37] Speaker 03:
Yeah, but I think it's 50 miles, if my recollection is correct, between these two post offices.

[00:31:41] Speaker 03:
That is her claim.

[00:31:42] Speaker 03:
So she's driving back and forth all the time.

[00:31:44] Speaker 03:
And she is legitimately entitled to mileage, which, by the way, is more than the cost of gas, right?

[00:31:50] Speaker 03:
Because it also takes into account wear and tear on your car.

[00:31:53] Speaker 03:
So if she had put in for mileage, the actual mileage could have been well more than the $300 in gas that she charged.

[00:32:01] Speaker 03:
I mean, I get that she might have also stopped and bought lunch somewhere, and that would have been not official duty.

[00:32:06] Speaker 03:
But why wasn't all that taken into account?

[00:32:08] Speaker 03:
It just seems really harsh.

[00:32:10] Speaker 02:
Well, if I could say, Your Honor,

[00:32:12] Speaker 02:
The fact that she didn't put in her mileage could just easily be seen as evidence that she knew whatever she was doing was not fully appropriate or approved.

[00:32:18] Speaker 03:
Oh, she knew what she was doing was not fully appropriate.

[00:32:20] Speaker 03:
That's why she walked in and pled guilty.

[00:32:22] Speaker 03:
But she was cutting corners.

[00:32:24] Speaker 03:
She was cutting corners.

[00:32:25] Speaker 01:
But again.

[00:32:25] Speaker 01:
Do we know that the actual trip she took would have been authorized for reimbursement?

[00:32:33] Speaker 01:
No.

[00:32:33] Speaker 01:
Because sometimes, if you're driving from your house to your workplace at work, that's not

[00:32:40] Speaker 01:
you can't get reimbursement for it.

[00:32:42] Speaker 02:
In this case, there's no record establishing that it was directly from one post office to another.

[00:32:49] Speaker 01:
That's correct.

[00:32:49] Speaker 01:
Because, I mean, did she?

[00:32:52] Speaker 01:
This is what we know.

[00:32:53] Speaker 01:
Did she put in her response to the opposing official or even at the A.J.

[00:32:58] Speaker 01:
that she was just trying to use this credit card to make it easier to get reimbursement?

[00:33:05] Speaker 02:
She did give that testimony.

[00:33:07] Speaker 02:
She testified that she was frustrated by the pace at which reimbursements were allowed.

[00:33:13] Speaker 02:
Some were directed to the incorrect address, I believe she said.

[00:33:15] Speaker 02:
And the agency agreed that there was a longer timeline for some of those reimbursements.

[00:33:21] Speaker 02:
That's not in dispute.

[00:33:23] Speaker 02:
What is dispute is whether she was entitled to reimbursement for all of those trips.

[00:33:28] Speaker 02:
There's no evidence on that.

[00:33:29] Speaker 02:
There's no showing.

[00:33:30] Speaker 02:
All we see

[00:33:31] Speaker 02:
Is Miss Campbell evading the process that the post office required in order to be reimbursed?

[00:33:36] Speaker 02:
And part of the way she evaded it is by misappropriating the pin numbers from her own employees.

[00:33:41] Speaker 02:
She didn't even try to put it on her own card.

[00:33:44] Speaker 02:
Her actions are not consistent with someone who felt they were doing something legitimate.

[00:33:49] Speaker 02:
and simply was trying to get paid.

[00:33:50] Speaker 03:
There's no doubt.

[00:33:51] Speaker 03:
She would not say she knew she was doing something legitimate.

[00:33:53] Speaker 03:
That's why she pled guilty.

[00:33:54] Speaker 03:
She knew that she was not following proper process, for sure.

[00:33:58] Speaker 03:
I have no doubt about that.

[00:33:59] Speaker 03:
I don't think he'd stand up and say anything to the contrary.

[00:34:02] Speaker 03:
But it just seems so harsh.

[00:34:04] Speaker 03:
I mean, how many years of service?

[00:34:05] Speaker 02:
Excuse me.

[00:34:07] Speaker 02:
How many years of service this woman has?

[00:34:08] Speaker 02:
She had 24 years of service, in which case she should have known very well what the process was that she needed to follow.

[00:34:14] Speaker 03:
She knew the process.

[00:34:15] Speaker 02:
Stop being a little retrieval.

[00:34:16] Speaker 03:
No, she knew the process.

[00:34:17] Speaker 03:
She's not guilty.

[00:34:18] Speaker 02:
And she didn't follow it.

[00:34:19] Speaker 02:
She acknowledges she didn't follow it, which is improper, which is the thing for what she's being charged.

[00:34:23] Speaker 03:
And it warrants a response by the agency, for sure.

[00:34:28] Speaker 03:
But does it warrant termination by somebody who said, I want her job for this at the outset?

[00:34:33] Speaker 02:
A supervisor that was misusing the financial system for the office?

[00:34:38] Speaker 02:
Yes, it does.

[00:34:39] Speaker 02:
And in fact, the agency emphasized it was her role as a supervisor that gave the most pause about her conduct.

[00:34:47] Speaker 02:
She was setting an example for the people she worked with.

[00:34:49] Speaker 02:
Not only did she steal their, excuse me, misappropriate their PIN numbers,

[00:34:53] Speaker 02:
She, by her conduct, showed them that they didn't need to follow the rules and regulations related to the reimbursement of finances, which is an important issue for the post office.

[00:35:04] Speaker 02:
Her role as supervisor was the single most serious part of the allegation and why removal was warranted here.

[00:35:10] Speaker 02:
And the petitioner has identified no comparators for other evidence that suggests that that was disproportionate or otherwise an unreasonable exercise of agency discretion.

[00:35:18] Speaker 03:
OK, thank you.

[00:35:19] Speaker 03:
Let's hear from Mr. Gallic.

[00:35:30] Speaker 00:
I appreciate the difficulty in trying to compare these various things and the Douglas factors and Singh factors.

[00:35:36] Speaker 00:
All I can tell you is on my brief that I'm sure you've already seen, pages 14, 15, 16, I'm citing eight circuit cases.

[00:35:44] Speaker 00:
I'm citing DC circuit cases.

[00:35:46] Speaker 00:
I'm citing district court cases involving some involving postmasters, some involving other federal workers who misappropriated a Voyager card.

[00:35:55] Speaker 00:
They were not terminated on their first offense.

[00:35:57] Speaker 00:
suddenly weren't even terminated after multiple offenses.

[00:36:01] Speaker 00:
But you could say, well, but that wasn't a postmaster who was in two different post offices.

[00:36:06] Speaker 00:
And that wasn't, you could certainly, I could see, parse it out and say they're not totally comparable.

[00:36:11] Speaker 04:
So counsel, what do you think is the most comparable case?

[00:36:14] Speaker 04:
If you're kind of giving us the summary and you want to point us to one case, what do you think is most comparable?

[00:36:19] Speaker 00:
I mean, there's, and I know it's not controlling on this court, but I mean, there's, there's more versus postal service out of the eighth service.

[00:36:25] Speaker 00:
But that involved a last chance agreement.

[00:36:28] Speaker 00:
But again, a last chance agreement presupposes there was multiple disciplinary issues.

[00:36:33] Speaker 00:
So you have a last chance agreement.

[00:36:35] Speaker 00:
Then on your second or third offense, you get terminated.

[00:36:38] Speaker 00:
And then it comes up to one of these reviewing courts, such as this one.

[00:36:42] Speaker 00:
There's Alexander versus Post Office.

[00:36:44] Speaker 00:
That's out of this court.

[00:36:47] Speaker 00:
There's Gutierrez for the Postal Service.

[00:36:51] Speaker 00:
I think one or two of these involve postmasters.

[00:36:54] Speaker 00:
But you could say, but they're not postmasters involving Voyager cards.

[00:36:57] Speaker 00:
So some involve Voyager cards, like this case, misappropriation.

[00:37:01] Speaker 00:
Some involve postmasters.

[00:37:02] Speaker 00:
But do they involve postmasters misappropriating Voyager cards?

[00:37:07] Speaker 00:
So maybe the puzzle pieces don't totally fit together.

[00:37:09] Speaker 04:
So if I'm asking you just to pick one, which of that litany would you pick?

[00:37:15] Speaker 00:
You know, I would say.

[00:37:18] Speaker 00:
I mean, a case out of this court, Beth of the US Postal Service, or that's MSPP case, July 5th, 2023.

[00:37:25] Speaker 00:
Are you asking for a circuit opinion?

[00:37:29] Speaker 04:
There's a lot of cases here.

[00:37:31] Speaker 04:
Well, this is true.

[00:37:33] Speaker 04:
I will give you that and spot you that.

[00:37:34] Speaker 04:
I'm asking you to pick one case from this court.

[00:37:37] Speaker 04:
Just one.

[00:37:41] Speaker 04:
And if you can't pick one, you can just tell me you can't pick one.

[00:37:43] Speaker 00:
You know, I would say to look at Alexander versus Postal Service, that's a 2001 decision on this federal circuit.

[00:37:50] Speaker 00:
I think that's a very important case involving the Postal Service.

[00:37:54] Speaker 00:
There's a lot, I think, again,

[00:37:56] Speaker 00:
Judge Moore, I think you're right.

[00:37:58] Speaker 00:
Ms.

[00:37:58] Speaker 00:
Campbell should not have done this.

[00:37:59] Speaker 00:
She knows that.

[00:38:00] Speaker 00:
But the penalty was very, very harsh.

[00:38:03] Speaker 00:
And I don't think all of the Douglas and Singh factors were considered here.

[00:38:07] Speaker 00:
I hope that this court can provide a remedy and give her something other than termination.

[00:38:14] Speaker 00:
Unless there's any other questions, I'd like to thank the court for its consideration.

[00:38:18] Speaker 03:
We thank both counsel, the cases taken, and their submission.