[00:00:00] Speaker 03: Our last case this morning is Bruce Fleming versus the Department of the Navy, 2024-1557. [00:00:07] Speaker 03: Mr. Ehrenberg, when you're ready. [00:00:14] Speaker 01: Thank you, Your Honor, and good morning to all. [00:00:17] Speaker 01: May it please the court, Jason Ehrenberg, on behalf of Professor Bruce Fleming. [00:00:26] Speaker 01: I'm reserving five minutes of my time because I think we've said everything that needs saying in the brief or that can be said in the brief. [00:00:35] Speaker 01: I think what I would say to the court is that one has to look at the bias and one has to look at the context. [00:00:47] Speaker 01: The bias of the decision maker and the context of the action or the [00:00:53] Speaker 01: utterance. [00:00:55] Speaker 01: This is a case where essentially an English professor who writes about, if you look at appendix 726, writes articles on the vocabulary of transgender theory and talks about implications of separating sex from gender and whether men should be talking about these issues or women getting into [00:01:25] Speaker 01: basically the nature of what it is to be transgender. [00:01:30] Speaker 03: But this isn't a question of writing an article. [00:01:32] Speaker 03: It's not a question of free speech. [00:01:34] Speaker 03: It's a question of what he did during class. [00:01:38] Speaker 01: I'm sorry, Your Honor. [00:01:40] Speaker 03: Performance. [00:01:41] Speaker 01: And essentially, he's being terminated for talking about transgender issues. [00:01:49] Speaker 03: He's taking off his shirt, and he's sending photos around. [00:01:53] Speaker 03: Doesn't the academy? [00:01:55] Speaker 03: have a right to determine what kind of performance occurs in its classes? [00:02:05] Speaker 01: They certainly do, but this is not a case where somebody was taking off his shirt in class and doing this. [00:02:12] Speaker 01: It was the essence of the- It's an English class. [00:02:20] Speaker 04: It's an English class where the professor writes... He's taking off his shirt and sending around pictures of himself without a shirt, right? [00:02:30] Speaker 01: That's not what the record reflected. [00:02:32] Speaker 04: I know English literature is expressive, but this kind of redefines expression. [00:02:41] Speaker 01: I think that taking off a shirt is a red herring. [00:02:44] Speaker 01: That is not something that is occurring in the classroom. [00:02:47] Speaker 04: You have to combine that with all of the other herrings in the case. [00:02:51] Speaker 04: I'm sorry? [00:02:51] Speaker 04: Combine that with the general conduct that underlines the charges that were brought against the professor. [00:02:58] Speaker 04: I mean, that whole broad category of conduct. [00:03:02] Speaker 01: Yes, sir. [00:03:03] Speaker 01: There were seven specifications. [00:03:07] Speaker 01: And I think I am not reading between the lines when I say that the individual who looked and decided whether this behavior [00:03:19] Speaker 01: was appropriate or professional or whatever the vague, vacuous notion or standard is of what a federal employee, what conduct is unbecoming, I think [00:03:35] Speaker 01: penalizing somebody for talking about things that they wrote about and that they assigned readings about, though maybe uncomfortable for some. [00:03:46] Speaker 01: That's not the point of the Naval Academy. [00:03:48] Speaker 01: It's the number four ranked liberal arts school in the US news. [00:03:54] Speaker 01: It's not just a military institution. [00:03:56] Speaker 01: It's a college. [00:04:00] Speaker 01: And yes, there are certain things about this college that are unique. [00:04:06] Speaker 01: But the right of a professor to talk about. [00:04:10] Speaker 04: Why don't you discuss the standards that were used to judge your client's conduct? [00:04:17] Speaker 04: What standards were applied? [00:04:21] Speaker 01: I think the standard is, at least according to the [00:04:26] Speaker 01: administrative judge below, the proper standard is to look at the conduct and the context of the situation in which it occurred. [00:04:35] Speaker 01: So if you're talking about somebody being unhappy with a picture being sent to them of my client, this is the [00:04:48] Speaker 01: The appendix is full of pictures of my client and his students like this, arms around each other, wearing costumes, smiling, flexing, because it's the Naval Academy. [00:05:03] Speaker 01: And your physical abilities and your physical strength is more relevant than it is in another college. [00:05:17] Speaker 01: I think you have to look at the context in which the specific things arose and what the specific allegations are. [00:05:28] Speaker 01: And they're essentially trying to make it seem as though my client was sexually harassing his students. [00:05:39] Speaker 01: They basically walk all the way up there and don't say those words. [00:05:46] Speaker 01: But it's clear to me as a reader that the board did not take into account the context. [00:05:59] Speaker 01: The board, like Dean Phillips, Provost Phillips, the agency [00:06:09] Speaker 01: The agency decider here, Dean Phillips had previously punished Professor Fleming in 2011. [00:06:18] Speaker 01: He punished him and denied him a merit pay raise. [00:06:26] Speaker 01: Professor Fleming went to the Office of Special Counsel. [00:06:29] Speaker 01: And the Office of Special Counsel, and this is at appendix 105-7, [00:06:35] Speaker 01: The Office of Special Counsel determined that the decision violated appellant's rights. [00:06:41] Speaker 01: And specifically, it was his free speech rights. [00:06:45] Speaker 01: And I'm not saying here that my client was fired for First Amendment rights. [00:06:51] Speaker 01: But what I'm saying is, as a professor at a college, [00:06:55] Speaker 01: where he's teaching a class where one of the subjects is transgender surgery and the language surrounding gender and homosexuality, it's perfectly proper. [00:07:10] Speaker 01: It's professional. [00:07:15] Speaker 01: What is the line there? [00:07:18] Speaker 01: You know, he writes about the stuff, he talks about it, he teaches about it. [00:07:22] Speaker 04: I don't think there is a standard. [00:07:29] Speaker 01: I think today there may be a very different standard than there was [00:07:37] Speaker 01: five or six years ago as to what employees can say and reasonably be explained. [00:07:44] Speaker 01: Federal employees can say and reasonably expect to be protected. [00:07:48] Speaker 02: When it comes to codes of conduct, they're generally drafted quite broadly. [00:07:54] Speaker 02: And so now there's an element of common sense as to when are you crossing the line. [00:08:02] Speaker 02: Here, there's a record of findings, finding that your client was continually crossing the line in very different ways. [00:08:15] Speaker 02: Yes, the subject of sex can come up in a classroom. [00:08:21] Speaker 02: It depends on how it comes up and whether it's off topic or on topic. [00:08:26] Speaker 02: I mean, just because he may have written an article about transgender surgery or something else, then it comes down to how does it actually come up? [00:08:39] Speaker 02: And how does the subject of sex come up? [00:08:41] Speaker 02: And how does the subject of all these other things that came up? [00:08:45] Speaker 02: And there's a little bit of common sense, maybe a lot of common sense, involved here when we're trying to make an assessment of what's acceptable and what's really not acceptable conduct and conduct overcoming. [00:09:00] Speaker 01: I would argue that the analysis should not be what's acceptable or not acceptable when we're talking about language [00:09:10] Speaker 01: and speech in a college classroom. [00:09:14] Speaker 02: I understand their... We're still in a senior subordinate situation in the Naval Academy and the federal employee. [00:09:22] Speaker 02: And so there are certain expectations and standards that people ought to be held to. [00:09:29] Speaker 02: And it's not so freeform that it's anything goes. [00:09:33] Speaker 01: And I'm not suggesting that anything goes, or that anything my client did, allegedly. [00:09:39] Speaker 02: The real problem we have here is that this has already been litigated below, and the fact finding has been done, and the record is fixed. [00:09:49] Speaker 02: And now, when we're at this stage, we're in an appellate court, and we give a lot of deference to administrative tribunals like the MSVB. [00:10:02] Speaker 02: We can't just revisit everything and undertake a re-legation of the case. [00:10:08] Speaker 01: No, and I don't believe our appeal is asking that everything be revisited. [00:10:13] Speaker 01: I think at the core, the appeal is not suggesting but articulating that if you look at these things in the context [00:10:29] Speaker 01: As I'm saying, they arose. [00:10:32] Speaker 01: And you don't just isolate things. [00:10:36] Speaker 03: This is an English class. [00:10:40] Speaker 03: And he emailed partially closed photos. [00:10:44] Speaker 03: He mispronounced an Asian-American's name multiple times. [00:10:49] Speaker 03: He made demeaning remarks about a child and her mother. [00:10:54] Speaker 03: All of that would seem to be irrelevant to teaching [00:10:58] Speaker 03: What, English? [00:10:59] Speaker 03: Not English language, but English literature? [00:11:05] Speaker 01: Following your point, sir, the argument would then turn to what's the appropriate remedy? [00:11:12] Speaker 01: What's the appropriate punishment or appropriate penalty for a 31-year English professor who has [00:11:26] Speaker 01: I won't get into all the laudatory things I can say about his career, but what happened was within a matter of a few months after he wrote an article that appeared in The Federalist, Dean Phillips started an investigation into him. [00:11:45] Speaker 01: All of the midshipmen in any class he ever took were given a survey and asked, did any of these things ever happen? [00:11:53] Speaker 01: Or did Professor Fleming ever do this? [00:11:57] Speaker 01: It didn't say what was the context in which it happened. [00:12:00] Speaker 01: The board, in its decision, did not [00:12:04] Speaker 01: Note what specific language was inappropriate or even what words were uttered about transgender or homosexuality or anything. [00:12:15] Speaker 03: If you're into your rebuttal time, you can continue or save it. [00:12:20] Speaker 01: I will stop there, sir. [00:12:21] Speaker 03: All right. [00:12:26] Speaker 03: Ms. [00:12:26] Speaker 03: Sonata. [00:12:27] Speaker 00: Good morning, Your Honor. [00:12:27] Speaker 00: It's me. [00:12:28] Speaker 00: Please, the court. [00:12:30] Speaker 00: I would like at the outset to start by addressing the allegations of bias and retaliation, which my friend here referred to as penalizing Dr. Fleming for writing articles. [00:12:41] Speaker 00: Dr. Fleming raised those issues as affirmative defenses before the MSPB, before the administrative judge. [00:12:48] Speaker 00: And the administrative judge specifically addressed and rejected them. [00:12:52] Speaker 00: Dr. Fleming chose not to appeal that decision before the full board. [00:12:56] Speaker 00: And the full board also affirmed. [00:13:00] Speaker 00: Likewise, he failed to challenge that decision before this court. [00:13:06] Speaker 00: Therefore, the court should not even consider those allegations of bias and retaliation because that issue has been resolved. [00:13:15] Speaker 00: Regarding the other matters, the [00:13:21] Speaker 00: The standard here is whether Dr. Fleming engaged in conduct on becoming a federal employee. [00:13:29] Speaker 00: That charge has no specific elements. [00:13:31] Speaker 00: The agency was required to prove that he engaged in the underlying conduct supporting the charge and that the conduct was improper in the U.S. [00:13:40] Speaker 00: Naval Academy setting. [00:13:42] Speaker 00: Substantial evidence here supports the board's conclusions with regard to both points. [00:13:47] Speaker 00: Specifically, as we explained in our briefs... [00:13:51] Speaker 02: The challenge here is that conduct on becoming is very broad and not very specific and can be a bit impressionistic. [00:14:02] Speaker 02: And so when we look at the two decisions that are before us, the AJ had one view of things and then the board had another view of things. [00:14:12] Speaker 02: And so, I mean, is this a case where things are a little murky as to [00:14:18] Speaker 02: whether someone crossed the line, so to speak, in terms of what makes good sense or doesn't make good sense, or in terms of what is, I don't know, bantering that doesn't quite rise to the level of something actionable versus something that, like I said, crosses the line. [00:14:40] Speaker 00: Yes, Your Honor. [00:14:41] Speaker 00: We would argue that the administrative judge's decision is [00:14:48] Speaker 00: not supported by substantial evidence, and the whole board is. [00:14:52] Speaker 00: The administrative judge did not consider the totality of the record as is required under the standard of review. [00:14:59] Speaker 00: Instead, the administrative judge started by essentially attacking the credibility of the main complainant, MD, on issues based on MD's religious upbringing, which, as we explained in our brief, [00:15:15] Speaker 00: is not permissible under the federal rules of evidence and suggests bias by the administrative judge. [00:15:23] Speaker 00: Additionally, the administrative judge found MD not credible when his statements were unsupported or not corroborated by other evidence. [00:15:36] Speaker 00: However, as we explained in our brief as well, [00:15:39] Speaker 00: Every single point on which Andy testified was corroborated by either documentary evidence and or other witnesses. [00:15:48] Speaker 00: The board, unlike the administrative judge, considered the totality of the evidence. [00:15:57] Speaker 04: Did the board entitle to overrule credibility determinations by the administrative law judge? [00:16:02] Speaker 00: I'm so sorry, Your Honor. [00:16:03] Speaker 00: Can you repeat the question? [00:16:04] Speaker 04: Is the board entitled to overrule credibility determinations that's made by the administrative logic? [00:16:12] Speaker 00: Yes, Your Honor. [00:16:12] Speaker 00: The board is entitled to do so provided that it provides sound reasons for doing so. [00:16:18] Speaker 04: Here, what were the sound reasons? [00:16:20] Speaker 00: The sound reasons, so there were two credibility determinations made by the administrative judge. [00:16:26] Speaker 00: One was concerning RJ, which was the Asian American student who complained and testified regarding Dr. Fleming mispronouncing his name. [00:16:37] Speaker 00: And then the second was concerning MD. [00:16:40] Speaker 00: With regard to MD, the credibility determination was irrelevant because there were no contradictory statements on the record on which to make a credibility determination. [00:16:53] Speaker 00: As I stated, everything that MD testified regarding was corroborated. [00:16:58] Speaker 00: The administrative judge relied on MD's religious upbringing to claim that, well, [00:17:06] Speaker 00: Essentially, most of the other students were unoffended. [00:17:09] Speaker 00: But because MD came from a religious background, he took particular offense. [00:17:14] Speaker 00: And therefore, he should not deserve any credit for his testimony. [00:17:18] Speaker 00: The board explained on appendix page 11 that regardless of whether anyone was actually offended, the conduct still amounted to conduct on becoming. [00:17:34] Speaker 00: credibility determination for RJ, the board provided three main reasons for rejecting that determination. [00:17:44] Speaker 00: First, the board referenced specific portions of the record, which established that the administrative judge's finding regarding the discrepancies in [00:17:56] Speaker 00: and lack of corroboration with RJ's testimony were factually inaccurate. [00:18:01] Speaker 00: For example, the AJ questioned RJ's credibility because when he was interviewed by the panel, he said he wasn't sure if the mispronunciation was done on purpose. [00:18:12] Speaker 00: However, the board explained, even though RJ said he was unsure if he was done on purpose, he felt that it was intentionally directed at him. [00:18:21] Speaker 00: So there was no real discrepancy there. [00:18:24] Speaker 00: As to the corroboration, several other students also remarked on Dr. Fleming's pronouncing students' names, particularly Asian names. [00:18:34] Speaker 00: And second, unlike the [00:18:37] Speaker 00: administrative judge, the board engaged in a fulsome analysis of the record to assess the credibility of RJ and Dr. Fleming. [00:18:45] Speaker 00: For instance, the administrative judge faulted RJ for not specifically mentioning the F-off comment to the panel, but RJ stated that profanity was directed at him two or three times. [00:19:05] Speaker 00: The AJ did not, but the board did acknowledge Dr. Fleming's own lack of forthrightness on this point. [00:19:12] Speaker 00: He never denied that he said F off to RJ, but instead denied saying a few, which are different things. [00:19:20] Speaker 00: And finally, the board articulated that Dr. Fleming's own lack of forthrightness [00:19:24] Speaker 00: and contradictions detracted from the weight of the evidence of his version of events. [00:19:31] Speaker 00: For instance, in his deposition, he thrice claimed that he could not recollect whether he mispronounced RJ's name and only denied doing so after he was specifically asked if he denied it. [00:19:43] Speaker 00: He also never denied saying F off. [00:19:47] Speaker 00: So those are the some reasons why the board, that the board provided for rejecting the credibility determinations [00:19:54] Speaker 00: the administrative judge. [00:19:58] Speaker 00: As to context, the proper context in which to evaluate Dr. Fleming's conduct is the US Naval Academy, which is unlike a regular civilian institution. [00:20:12] Speaker 00: As we explained in our brief, this court has explained that conduct that might be overlooked in some settings can be inappropriate [00:20:23] Speaker 00: or if it's contrary to the mission of the agency. [00:20:26] Speaker 00: Here, the record is clear that the Naval Academy's mission is to train officers of what's acceptable and unacceptable conduct so that when those officers are in charge of a fleet and supervising a subordinate, they understand how to treat them. [00:20:44] Speaker 00: In support of that mission, all faculty members are expected to exemplify dignity and respect, and several witnesses, including [00:20:53] Speaker 00: Captain Chadwick, Dean Phillips, and Professor Liddler testified that Dr. Fleming's conduct was inappropriate and contrary to the agency's mission. [00:21:03] Speaker 00: Also, I want to briefly address the [00:21:07] Speaker 00: claimed that my friend made that the subject of the class was transgender surgery. [00:21:15] Speaker 00: But other than counsel's statements here and before the AJ, and before the administrative judge, there's actually no evidence on the record to show that the sexual topics and the discussion of transgender surgery was connected to the course material at all. [00:21:34] Speaker 00: Several students either stated to the panel [00:21:36] Speaker 00: in their complaints or testified before the administrative judge that those discussions were immaterial to the class. [00:21:46] Speaker 00: Unless the court has any other questions, we respectfully request that the court affirm the decision of the board. [00:21:54] Speaker 00: Thank you. [00:21:55] Speaker 03: Mr. Ehrenberg has some rebuttal time. [00:21:58] Speaker 01: Yes, sir. [00:21:58] Speaker 01: Thank you. [00:21:59] Speaker 01: I will just touch on one or two issues. [00:22:04] Speaker 01: First, council for the government referred to the Naval Academy as somewhere where there are training officers to lead. [00:22:15] Speaker 01: The ROTC, which is at many other universities, [00:22:19] Speaker 01: graduates officers to lead. [00:22:22] Speaker 01: Those are college institutions. [00:22:24] Speaker 01: Those officers are no different than the officers that graduate from the Naval Academy. [00:22:30] Speaker 01: With regard to credibility, MD's testimony was not corroborated. [00:22:39] Speaker 01: It was greatly exaggerated. [00:22:40] Speaker 01: is what the administrative judge found. [00:22:43] Speaker 01: And while underlying things may have happened the way they happened or the extent to which things happened was greatly exaggerated. [00:22:58] Speaker 01: The agency feels the need to dig into the record and point to hearsay evidence, which is not properly before this body, my client's deposition. [00:23:09] Speaker 01: There was an administrative hearing, essentially a trial. [00:23:22] Speaker 01: That's where the testimony would have to come from, not from a deposition. [00:23:27] Speaker 01: And I think, at core, and I appreciate the court's hesitancy [00:23:41] Speaker 01: to look at the context I want this to be looked at in. [00:23:44] Speaker 01: But I think the context is not just an English classroom. [00:23:48] Speaker 01: The context is also Dean Phillips not knowing what my client teaches, admitting that at the hearing, saying he was unaware that my client taught these areas and wrote about these subjects. [00:24:04] Speaker 01: So necessarily, they're [00:24:08] Speaker 01: They're wrong. [00:24:08] Speaker 01: They're excluded. [00:24:09] Speaker 01: You can't talk about them in the classroom. [00:24:11] Speaker 01: And I think the question does become, what is the proper cutoff? [00:24:17] Speaker 01: There is no bright line, black line rule. [00:24:22] Speaker 01: It's reasonableness. [00:24:28] Speaker 01: decider here who looked at this without bias and with reason was the administrative judge. [00:24:34] Speaker 01: I think the board showed significant bias in its treatment of some of the issues. [00:24:44] Speaker 01: And I will stop there and thank the court for its time. [00:24:49] Speaker 03: We appreciate your comments and arguments. [00:24:52] Speaker 03: Cases submitted.