[00:00:00] Speaker 01: Our next case is Green versus MSPB, 24-1615. [00:00:10] Speaker 01: Counselor Rachel Gold, you reserve five minutes of time for rebuttal. [00:00:15] Speaker 04: I do, Your Honor, please. [00:00:24] Speaker 05: Good morning, Your Honors. [00:00:28] Speaker 04: May it please the Court, my name is Rachel Demers-Gold. [00:00:30] Speaker 04: I'm here on behalf of my client, Bradley Green. [00:00:33] Speaker 04: And I'm here not only because I'm the lawyer who sat at her laptop on Thanksgiving 2017 trying to perfect this appeal, [00:00:40] Speaker 04: But the deference that the board is requesting on behalf of the US Postal Service has been completely eroded since this case started almost 10 years ago now. [00:00:51] Speaker 04: The basis of the board's decision, the merit system principles that were established by 5 USC 2301 and are posted on their website, include all of the reasons for its establishment. [00:01:03] Speaker 04: It was a reform of the Civil Service Act, and it was designed to protect the members of [00:01:08] Speaker 04: the services, particularly clients like mine, Mr. Bradley Green, who for over 20 years was a member of the Postal Service without incident, and in 2017 was transferred to a location where he was assigned and charged with the mission of improving delivery times. [00:01:27] Speaker 03: Can you tell us what actions were taken to timely file the appeal by the actual deadline? [00:01:35] Speaker 04: Yes, I can. [00:01:37] Speaker 04: So my recollection of when I first received the question 16 was the 20th of November. [00:01:45] Speaker 04: The appeal had actually been started the month before, the day after the decision was received. [00:01:51] Speaker 04: And at that point, I was actually not retained. [00:01:53] Speaker 04: My client had started the appeal process. [00:01:55] Speaker 04: I'm sorry. [00:01:55] Speaker 03: What do you mean when you say the appeal had been started the month before? [00:01:58] Speaker 03: What do you mean by that? [00:01:58] Speaker 04: So the Merit System Protection Board is a portal. [00:02:01] Speaker 04: And the WAVE is an e-appeal filing portal. [00:02:04] Speaker 04: And you go in, and like I was explaining, my client was not represented at the time. [00:02:09] Speaker 01: If he- Counselor, I'm going to ask that you're here as a lawyer for Mr. Green, right? [00:02:15] Speaker 01: Yes, sir. [00:02:17] Speaker 01: But you're almost testifying to us. [00:02:19] Speaker 04: Because I personally was the person he was speaking to that day. [00:02:23] Speaker 01: OK. [00:02:23] Speaker 01: But keep everything confined to what is already in the record. [00:02:28] Speaker 04: I will, Your Honor. [00:02:28] Speaker 01: Thank you. [00:02:29] Speaker 01: Do you understand what I'm talking about? [00:02:31] Speaker 04: I do. [00:02:32] Speaker 04: I do believe all of this is in our record. [00:02:35] Speaker 04: The fact that the appeal was, in fact, opened the day after the date. [00:02:39] Speaker 01: It's just that we're not fact-finders. [00:02:41] Speaker 01: And we're also, you know, I want to make sure that we maintain the arguments in accordance with the record that's been developed and that's been sent up to us. [00:02:54] Speaker 01: as opposed to having your personal testimony right now based on your recollection. [00:02:58] Speaker 01: You've said that a couple of times. [00:03:00] Speaker 01: You've said, my recollection is, that's what I'm trying to avoid. [00:03:03] Speaker 05: Understood. [00:03:04] Speaker 04: I was responding to the judge's question as to what steps were taken. [00:03:08] Speaker 04: And I guess I referred to myself, because I did personally take some of them. [00:03:12] Speaker 04: So let me refer just to the record in a more generic way. [00:03:15] Speaker 04: OK. [00:03:15] Speaker 03: And if you can point us to record pages, I think, which will be consistent with, I think, the instruction given by Judge Raina, that would be very helpful. [00:03:23] Speaker 03: So we can see the actual physical steps. [00:03:26] Speaker 05: OK. [00:03:27] Speaker 05: If you look at appendix, if I could pull up my record, Your Honor. [00:03:37] Speaker 04: Appendix page 101 says. [00:03:40] Speaker 05: I did not expect to have to go back to their pages to show where they admitted these things, so I'm sorry. [00:03:53] Speaker 05: I do need a moment to do this properly. [00:04:16] Speaker 05: in the appendix, Your Honors, at the Merit System Protection Board's brief, which is pages. [00:04:30] Speaker 03: I think you were trying to point us to appendix page, you said, 101? [00:04:42] Speaker 05: I did say page 101, Your Honor, yes. [00:04:45] Speaker 05: But I think that I should start by asking you to turn to Appendix page 50, which is in the record beginning as page 46. [00:04:56] Speaker 04: All of the facts that I am currently reciting, if I could appear on pages 47, the appellant opened his appeal and started to upload the required information. [00:05:08] Speaker 04: The statement of facts there is what I am actually alluding to in my statement now. [00:05:13] Speaker 04: beginning on what is page 2 of that argument, page 47 of the appendix. [00:05:18] Speaker 04: And it goes through page 50. [00:05:21] Speaker 04: There are a series of facts there, including when he originally opened his appeal. [00:05:24] Speaker 04: It's an online portal where my client had originally opened an appeal the day that he received the decision saying that he was not going to be able to file this appeal. [00:05:40] Speaker 04: He then sent to me, I believe the date is November 20th is in the record, that I returned to him and we had settled on November 20th. [00:05:54] Speaker 04: On the 23rd, which was in fact Thanksgiving, was the day that [00:05:58] Speaker 04: He went to perfect the appeal. [00:05:59] Speaker 04: Question 16 is the narrative that describes exactly what happened that is the basis for requesting the appeal. [00:06:05] Speaker 04: The entire application, everything in the portal had been done, other than the uploading of question 16. [00:06:11] Speaker 04: That was where the problem arose. [00:06:13] Speaker 04: On the 23rd, which was Thanksgiving, he was unable to do it. [00:06:17] Speaker 04: He then reached out to counsel, who is before you today, but in the record also is the same person who tried to upload it. [00:06:24] Speaker 04: We were unsuccessful. [00:06:25] Speaker 01: Is there any dispute as to whether the system was operating on that day or not? [00:06:32] Speaker 01: I think I read on the other side that they had no proof that the system was down on that day. [00:06:39] Speaker 04: That's exactly what they say. [00:06:40] Speaker 04: That what they did, and this is part of the issue with the record on top of that, is that the decision below did not actually address anything beyond the fact that there was something submitted by the Merit System Protection Board to its own council. [00:06:55] Speaker 04: 10 years after this happened, that was report that was never examined by us, was never turned over. [00:07:01] Speaker 04: Mr. Green, who is the member of the federal services who was supposed to be protected by this system, was never offered the opportunity to examine what that record was, to cross examine on it. [00:07:11] Speaker 04: And yes, there's a dispute, but there is also evidence, human evidence, of people who have, I will say, a verd to the information, because there's been no opportunity for testimony in this matter. [00:07:23] Speaker 04: that, in fact, the system was down. [00:07:25] Speaker 04: What they did admit was that it was down for two days before this happened. [00:07:31] Speaker 04: And they aver that there was a message that was creeping across the top of the screen for the week that this was happening that said that all systems had been restored. [00:07:45] Speaker 04: There is evidence that was turned over, that was made part of the record. [00:07:51] Speaker 04: Late, I would submit. [00:07:52] Speaker 04: It was never given an opportunity to examine. [00:07:55] Speaker 06: Sure. [00:07:55] Speaker 06: Yes? [00:07:57] Speaker 06: I read the board's decision, full board's decision, as saying, even assuming you're correct about that, and there were technical difficulties, there is no evidence that [00:08:13] Speaker 06: the appellant or the appellant's lawyer requested technical assistance to resolve any issues prior to the due date for the appeal. [00:08:23] Speaker 06: So setting that aside, how do you respond to that? [00:08:27] Speaker 06: Because to me, that seems kind of problematic for your case. [00:08:31] Speaker 04: Well, the 23rd was Thanksgiving. [00:08:32] Speaker 04: So there was no one to whom to reach out to the board that day. [00:08:35] Speaker 04: The 24th was the Friday after Thanksgiving. [00:08:38] Speaker 04: And again, we made the attempts as the 27th. [00:08:42] Speaker 06: The 27th, I was on trial as the day it was due. [00:08:46] Speaker 04: It was the day it was due. [00:08:47] Speaker 04: I don't know. [00:08:48] Speaker 04: I don't have an answer other than the fact that we had been trying for days. [00:08:52] Speaker 04: The system was consistently down. [00:08:54] Speaker 04: I was on trial. [00:08:55] Speaker 04: So both Mr. Green, who had been filing it himself, and my assistant continued to try. [00:09:00] Speaker 04: And quite frankly, the fact that there was a scrolling message on the top of the screen. [00:09:05] Speaker 06: The question was, why didn't anyone request technical assistance on November 27th, the day it was due? [00:09:12] Speaker 06: I understand you were at trial. [00:09:16] Speaker 04: I was on trial. [00:09:18] Speaker 04: It did not occur to me personally that there was to call the board that had asked me to electronically file and said there was a problem. [00:09:26] Speaker 04: In fact, it wasn't until my secretary did it several days later. [00:09:29] Speaker 04: She called me and said, I finally called them, and this is what they said to do. [00:09:35] Speaker 04: Mr. Green and I had been trying for days to do it. [00:09:38] Speaker 04: I don't know if I have a better answer to that. [00:09:39] Speaker 04: I know that there's an argument in the papers. [00:09:41] Speaker 06: I do think that there's also something in the record suggesting that there was a misunderstanding that November 27 was dead. [00:09:50] Speaker 04: And I would submit the fact that there are so many questions in this record concerning when this was actually perfected all by itself warrants an examination. [00:09:57] Speaker 04: In the record, it says that it was perfected on November 28. [00:10:01] Speaker 04: Now they're saying it wasn't done until November 24. [00:10:04] Speaker 04: Director Honors, if I could please. [00:10:06] Speaker 06: You mean when the appeal was perfected? [00:10:08] Speaker 06: What does that mean? [00:10:08] Speaker 06: What do you mean by that? [00:10:10] Speaker 04: The appeal was started on October 20 or 21, the day that the notice was received. [00:10:18] Speaker 04: The only thing that was not done that created this delay was the uploading of question 16, which is the narrative of what had happened to lead to the appeal. [00:10:28] Speaker 04: It was that drop-down menu and attaching of the files from our computer that the system was refusing to allow us to do. [00:10:36] Speaker 03: Now, there's no dispute that the upload occurred on December 4. [00:10:41] Speaker 04: No, there is. [00:10:41] Speaker 04: If you would please look at appendix page 101, November 29, 27 day, a day after the appeal was filed. [00:10:49] Speaker 04: There's inconsistency in their own system as to whether or not this appeal was perfected on the 4th, the 1st, or the 27th. [00:10:56] Speaker 03: The reason being, can you at least agree that there's no dispute that that question was not uploaded until after the due date for the appeal? [00:11:05] Speaker 04: I will concede that no, I've never seen the records as to what happened with all of our attempts to submit it. [00:11:11] Speaker 04: Because the truth is, if you look at the record, there were several attempts. [00:11:14] Speaker 04: We hit submit on the 23rd. [00:11:16] Speaker 04: We hit submit on the 24th. [00:11:18] Speaker 06: When did you get some sort of indication that, in fact, your paper had been accepted? [00:11:26] Speaker 04: When my assistant called. [00:11:29] Speaker 04: and said we were having this problem, and we don't know what to do, which was the first, which I will admittedly, and it's in the record. [00:11:36] Speaker 04: The first, I started trying. [00:11:37] Speaker 03: It points to an appendix page in the record that shows the date when it was successfully uploaded. [00:11:44] Speaker 03: OK, well. [00:11:45] Speaker 06: It wasn't uploaded, was it? [00:11:47] Speaker 06: I mean, did you end up faxing it? [00:11:49] Speaker 03: That's the problem. [00:11:51] Speaker 03: It was never uploaded. [00:11:52] Speaker 03: Wait, hold on. [00:11:53] Speaker 03: Let me ask my question, and you'll answer. [00:11:56] Speaker 03: Can you just show us something in the record where it shows that it was successfully, I'm going to say, provided in terms of the appeal of this information regarding question 16? [00:12:08] Speaker 03: If you look at appendix page 101, [00:12:22] Speaker 05: This is the agency's response to our evidence on timeliness, the second paragraph. [00:12:27] Speaker 04: The evidence provided shows email exchanges, including email sent on November 29, the day after the appeal was filed. [00:12:34] Speaker 04: So their own papers actually say it was November 29. [00:12:37] Speaker 04: I know that there are papers here that say it was December 4. [00:12:40] Speaker 04: I've never seen anything that says December 4 other than the submission to your honors here. [00:12:44] Speaker 04: It was December 1 when their appeal was written. [00:12:47] Speaker 04: It was November 29. [00:12:49] Speaker 06: With due respect, I don't see how this sentence you've identified says that's when the appeal papers were filed. [00:12:56] Speaker 06: It says that's when there were email exchanges between the lawyer and the client. [00:13:01] Speaker 04: And it says, one day after the appeal was filed is the file. [00:13:05] Speaker 06: I think the question asked was, what do you have in the record to show when the appeal was perfected or provided? [00:13:15] Speaker 04: Other than the agency's admission that they received it on the 29th? [00:13:19] Speaker 04: I mean, that's what that letter. [00:13:20] Speaker 06: We haven't seen admission that they received it on the 29th in the sentence that you've identified. [00:13:26] Speaker 05: Well, it does say in their papers a day after it was filed. [00:13:29] Speaker 06: It says the evidence provided shows email exchanges between herself and her client, including an email sent on November 29. [00:13:37] Speaker 04: A day after the appeal was filed. [00:13:39] Speaker 06: I don't understand how that proves that the appeal itself was perfected the day after. [00:13:48] Speaker 06: Oh. [00:13:51] Speaker 06: The day after the appeal was filed. [00:13:52] Speaker 06: Oh, so you're saying because it says the day after the appeal was filed, that's an admission? [00:13:56] Speaker 04: I am saying that. [00:13:58] Speaker 04: And it's consistent with not only our attempts for many days to submit this, but with- Why is that not a typo? [00:14:04] Speaker 04: Why is that not a typo? [00:14:05] Speaker 06: Given the rest of the substance of the case. [00:14:07] Speaker 06: I mean, if your appeal was filed- oh, so you think- OK, all right. [00:14:12] Speaker 06: I'm sorry. [00:14:12] Speaker 06: You think it was filed on the 28th, not the 27th. [00:14:15] Speaker 04: I do, and not only do I think it was filed on the 28th, it was submitted on the 23rd, it was submitted on the 24th, and then adapted on the 27th. [00:14:25] Speaker 04: And the whole point is that because there are so many dates in here, [00:14:29] Speaker 04: the arbitrary and capricious nature of refusing to look at the inconsistency, not giving Mr. Brinney the opportunity to examine the records that they're proffering as proof that this system was working when, in fact, there are eyewitnesses that it was not working. [00:14:47] Speaker 04: It just completely undermines the whole purpose of the board and all of the protections it was designed to give Mr. Green. [00:14:53] Speaker 04: The board refused to even consider the five factors in Alonzo, which are actually mandatory under the Barnes case, under the Ziegfeld case. [00:15:03] Speaker 04: And that, by itself, I would say, is both an abuse of discretion as well as arbitrary and capricious. [00:15:09] Speaker 04: But as your honors appear to be focused on the number of times [00:15:13] Speaker 04: that different dates for submission appearing here, I submit to Your Honors that that's, in fact, part of the problem. [00:15:18] Speaker 04: Mr. Green has yet to be given an opportunity to defend the position that we want. [00:15:22] Speaker 03: Let me just ask you one more question. [00:15:23] Speaker 03: I know you're volunteer of all, but let me ask this. [00:15:26] Speaker 03: How did the board abuse its discretion in finding a good cause for waiving the time limitation for filing the appeal? [00:15:35] Speaker 04: So the Barnes case, the Ziegfeld case, required that the Alonzo factors be examined. [00:15:42] Speaker 04: The only thing that was even looked at by the board was a document proffered by the board and by the US Postal Service after the entire brief had been submitted. [00:15:54] Speaker 04: They didn't examine the five factors which are required. [00:15:57] Speaker 04: which are the length of the delay, which again, might be one day, might be three days, but in fact I submit to you was no days. [00:16:05] Speaker 04: We submitted over and over. [00:16:07] Speaker 03: You understand though in the board's decision Alonso is cited, correct? [00:16:11] Speaker 04: Yes. [00:16:12] Speaker 04: And their position is that they don't need to examine the five factors, but that's not the case. [00:16:18] Speaker 04: They are required to look at the length of delay, the reasonable of excuse, the showing of due diligence, the evidence. [00:16:25] Speaker 03: I mean, due diligence is discussed in the actual order as well. [00:16:29] Speaker 04: Except there are factual errors in the due diligence conversation. [00:16:32] Speaker 04: First of all, it says that Mr. Green didn't bother to try and send the paragraph to his lawyer until [00:16:38] Speaker 04: after Thanksgiving. [00:16:39] Speaker 04: That's simply untrue. [00:16:40] Speaker 04: And in fact, if you look at the boards and the Postal Service's own submission, they can see that there are factual delays in the judge's decision. [00:16:55] Speaker 01: Is this back on number one? [00:17:10] Speaker 04: I'm sorry, Your Honor. [00:17:11] Speaker 04: You're asking me to... No, that's all right. [00:17:16] Speaker 05: Okay. [00:17:16] Speaker 05: I think I'm well over my time and... You are. [00:17:19] Speaker 01: Okay. [00:17:19] Speaker 01: But we let you go. [00:17:21] Speaker 01: Are there any other questions? [00:17:23] Speaker 01: Okay. [00:17:24] Speaker 01: We'll restore your rebuttal time. [00:17:26] Speaker 01: I'm sorry? [00:17:44] Speaker 02: Good morning, Your Honors. [00:17:45] Speaker 02: May it please the court? [00:17:46] Speaker 02: My name is Diana Schabacher, and I represent MSPB. [00:17:52] Speaker 02: I would just like to flag at the outset that council is pointing to submissions by the Postal Service that were submitted in the record below and saying that those are admissions by MSPB. [00:18:05] Speaker 02: But those submissions on appendix page 101, for example, that was the Postal Service. [00:18:10] Speaker 06: Would you have us look at page A23, which is the certified list, to see what the filing date was? [00:18:17] Speaker 02: Yeah, the certified list shows that the appeal was received by FACS on December 4 for the first time. [00:18:25] Speaker 02: And there is also the timeliness order by the administrative judge that was issued on [00:18:37] Speaker 02: date of the timeliness orders, December 14. [00:18:39] Speaker 02: And on that appendix, page 92, she notes that it was received on December 4, 2017, and it was untimely filed by seven days. [00:18:50] Speaker 02: So anything that US Postal Service said is not reflecting anything in the board's records. [00:18:58] Speaker 01: So you said we should disregard that statement? [00:19:03] Speaker 02: I believe it's not probative of what the board found or what the board's records show. [00:19:08] Speaker 02: It appears to be an error by the Postal Service. [00:19:12] Speaker 01: This is an error? [00:19:14] Speaker 02: To the extent it implies that the filing was made on November 28, I believe the Postal Service said that on. [00:19:24] Speaker 02: The board's records show that this appeal was received on December 4 [00:19:30] Speaker 02: I think that the very limited evidence provided by Petitioner before the board also confirms that they knew the filing had not been submitted before that time. [00:19:40] Speaker 01: There's not a lot of evidence, but there's usually not a lot of evidence in these cases on this deadline. [00:19:47] Speaker 01: But you actually have discretion to excuse the missing the deadline here, right? [00:19:53] Speaker 02: The board has discretion if good cause is shown. [00:19:56] Speaker 01: So that's what we're looking at, whether there was good cause for this or not. [00:20:00] Speaker 02: Correct. [00:20:01] Speaker 02: The evidence that was provided below consists of emails showing their attempts to file and clearly conveying that counsel knew that the appeal had not been submitted. [00:20:13] Speaker 01: Our regulations provide that an appeal is submitted by... The way I read it, she thought that the client had taken care of it because she's in an arbitration. [00:20:23] Speaker 01: And I can understand that. [00:20:24] Speaker 01: If you're in an arbitration, your hands are full. [00:20:28] Speaker 01: She asked the client. [00:20:30] Speaker 01: The client, of course, is mixed up. [00:20:32] Speaker 01: So they missed the deadline by how many days? [00:20:35] Speaker 02: Seven days. [00:20:35] Speaker 01: By seven days. [00:20:37] Speaker 02: Yes. [00:20:38] Speaker 02: The emails show that Mr. Green emailed her on November 23rd, which is the only email they provided that was actually during the filing period. [00:20:50] Speaker 02: The rest of the emails start on November 29th, which was already two days after the filing period. [00:20:55] Speaker 02: The board's dispositive finding here is that even assuming it's true all of the technical issues alleged by Mr. Green and his counsel, it's undisputed that they did not try to file via alternate means or request technical assistance from the board during the filing deadline, during the filing period. [00:21:15] Speaker 02: This is directly on point with this court's holding in Faden that due diligence requires a party to attempt alternate filing methods if the appeal's not working. [00:21:25] Speaker 01: Looking at the evidence on the record, I'd like for you to tell me, was the system down, the filing system down on the days that the appellate claims? [00:21:34] Speaker 02: We have no record that the system was down on those days, no. [00:21:38] Speaker 01: Would you have had a record? [00:21:40] Speaker 02: I believe that we would have records of full system outages. [00:21:44] Speaker 02: I mean, I don't. [00:21:48] Speaker 02: We can't speak to whether or not they, in fact, experienced some kind of issue with the website. [00:21:52] Speaker 01: You don't know? [00:21:53] Speaker 01: You don't know that? [00:21:54] Speaker 02: OK. [00:21:55] Speaker 02: I have no way to know if they truly couldn't upload question 16 on that day. [00:22:00] Speaker 02: But that's why the board's ultimate finding is so critical, because we credited that they couldn't successfully use e-appeal. [00:22:08] Speaker 02: But due diligence requires more. [00:22:10] Speaker 02: than just trying to use eAppeal four days before the deadline, and then doing nothing else until two days past the deadline, and even then continuing to just experience the same problem with eAppeal and not reaching out to the board for assistance, not using fax or mail, commercial delivery, any of these other acceptable filing methods. [00:22:31] Speaker 02: And the board was open on November 24, the day after Thanksgiving, and was certainly open on the deadline November 27. [00:22:38] Speaker 02: And even if they had simply submitted a ticket requesting technical assistance, that would have been something in the record showing efforts. [00:22:46] Speaker 02: But no such effort was taken here during the filing period. [00:22:49] Speaker 02: It took them a full seven days. [00:22:50] Speaker 06: Is there a record that shows the board was open on November 24? [00:22:55] Speaker 06: Because I heard counsel say it wasn't. [00:22:57] Speaker 02: Well, the government is always open the day after Thanksgiving. [00:23:01] Speaker 02: There's nothing in the record, right? [00:23:03] Speaker 02: It's not in the record, no. [00:23:05] Speaker 02: But regardless, Monday the 27th was a business day. [00:23:10] Speaker 02: It was the deadline. [00:23:13] Speaker 02: It appears that there were no efforts to file on that day. [00:23:15] Speaker 03: The appendix pages 129 to 130 show all of the [00:23:21] Speaker 03: I can't I'm sorry I'm looking at appendix pages 129-130 does that show all the attempts that were made to log into the system to do any sort of filing by Mr. Green or his counsel? [00:23:37] Speaker 03: Yes they do. [00:23:46] Speaker 00: So you're claiming they were not diligent in trying to get a file? [00:23:51] Speaker 02: No, the board acted well within its discretion to find that there wasn't adequate due diligence under these circumstances. [00:24:01] Speaker 02: Having encountered difficulties using e-appeal, it was incumbent upon Mr. Green, who was represented by counsel, to act reasonably under the circumstances to get the appeal submitted on time. [00:24:12] Speaker 02: And they continued to demonstrate [00:24:19] Speaker 02: a failure to try alternate methods, to contact the board for assistance. [00:24:25] Speaker 02: Presumably, the miscalculation of the filing deadline played a role. [00:24:28] Speaker 02: But to blame the seven-day filing deadline on e-appeal doesn't show due diligence under the circumstances here. [00:24:39] Speaker 02: And the board was well within its discretion to decline waiver under these circumstances. [00:24:47] Speaker 01: Any questions? [00:24:49] Speaker 01: Thank you. [00:24:49] Speaker 01: Thank you. [00:24:56] Speaker 01: Counselor Goldwell, we store your time to 30 minutes. [00:24:59] Speaker 04: Thank you, Your Honor. [00:25:00] Speaker 04: I think I just, if I may point out a couple of things. [00:25:04] Speaker 04: based upon what your conversation was with Council for the Board. [00:25:09] Speaker 04: First of all, Barnes vs. the Merit System Protection Board actually specifically found that it was not reasonable to expect someone to find alternate filing during a holiday weekend. [00:25:20] Speaker 04: And in fact, in that case, they eliminated the days of both the holiday and the subsequent weekend from the filing deadline because of the fact that it was found that it was not reasonable to expect people to try and find alternate means during that time. [00:25:32] Speaker 04: And I'm not going to concede that we did not make any attempts. [00:25:35] Speaker 04: I understand they're not in the record. [00:25:37] Speaker 04: I'd just like to point out that that is what's being relied on very heavily here, and that is not what the barn's holding was. [00:25:43] Speaker 04: I would also like to note that they keep saying that ordinary prudence indicates that we should have requested assistance. [00:25:52] Speaker 04: It was Thanksgiving Thursday. [00:25:53] Speaker 04: There was no one to request. [00:25:55] Speaker 04: It was Thanksgiving Friday. [00:25:57] Speaker 04: My office was closed, and we did try and get this done. [00:26:00] Speaker 04: I understand that there are several places in the record where there are discrepancies [00:26:07] Speaker 04: as to when this was actually perfected. [00:26:10] Speaker 04: But that is part of the point here, is that the whole board's purpose is to protect the interests of these workers. [00:26:18] Speaker 04: And if Mr. Green did what he is accused of doing, then there's no question that he probably deserved to lose his job. [00:26:25] Speaker 04: However, here the question is whether or not the board had an obligation to hear his case, whether or not the board had an obligation [00:26:32] Speaker 04: to find that there was good cause when their own system was down for days and days and weeks that week by their own admission, even though they say it's not these days. [00:26:41] Speaker 04: And they have no record of when the system actually finally did either restore itself or show that my client's documents were uploaded. [00:26:55] Speaker 04: If your honors have no further questions, I guess the only other thing I'd like to point out is that Logan, Skaggs, and Herring all point out that the Alonzo factors are required to be considered. [00:27:07] Speaker 04: Otherwise, it's an abuse of discretion, per se. [00:27:10] Speaker 04: And that's exactly what happened here. [00:27:12] Speaker 04: The judge below, the board, decided not to listen, not to pay attention to the record, to consider the one factor that their client had proffered to them that wasn't proffered to the member of the board who was supposed to be protected in this situation. [00:27:24] Speaker 04: And they're not even giving him a chance to be heard. [00:27:27] Speaker 04: And I'd ask your honors to find that there was good cause, there was an abuse of discretion, and give Mr. Green an opportunity to make his case. [00:27:35] Speaker 01: Thank you. [00:27:35] Speaker 01: OK, thank you. [00:27:36] Speaker 01: We thank the parties for their arguments. [00:27:37] Speaker 01: And that's the end of today's arguments. [00:27:41] Speaker 01: This court now writes their recess.