[00:00:00] Speaker 03: All right, our next case for argument is 24-1717, Reyes versus MSBB. [00:00:04] Speaker 03: Good morning, Your Honors. [00:00:07] Speaker 06: May it please the Court. [00:00:08] Speaker 06: My name is Jeff Sramac. [00:00:09] Speaker 06: I represent Mr. Miguel Reyes. [00:00:12] Speaker 06: In a appeal of an important question, whether Mr. Miguel Reyes' petition for enforcement of a settlement agreement with the Department of Veteran Affairs was filed within a reasonable time with the American Civil Protection Board. [00:00:28] Speaker 06: The board dismissed this matter without a hearing, holding that either a 14-month or a four-month delay was unreasonable. [00:00:39] Speaker 03: Well, the board only addressed the four-month delay in a tiny little footnote in the rehearing, correct? [00:00:43] Speaker 03: Yes. [00:00:43] Speaker 03: The AJ didn't address the four-month delay? [00:00:46] Speaker 06: No, they didn't, Your Honor. [00:00:47] Speaker 03: And they didn't really give any rationale in the footnote? [00:00:49] Speaker 06: No, they didn't, Your Honor. [00:00:51] Speaker 03: My review of all the cases suggests that I couldn't find one where a four-month delay was deemed to be [00:00:57] Speaker 03: too much delay. [00:00:58] Speaker 06: I could not either. [00:00:59] Speaker 06: I mean, in fact, there is no bright line rule as far as how long is too long. [00:01:04] Speaker 06: I mean, there certainly is a unreasonable aspect of delay, but I think that the cases, if you look at them, there is no bright line rule. [00:01:13] Speaker 06: It's reasonable, right? [00:01:15] Speaker 06: It's a reasonable decision. [00:01:15] Speaker 04: Which is kind of odd, right? [00:01:17] Speaker 04: I mean, usually we have a statute of limitations, so we have some regulatory time frame for filing, and this seems to be [00:01:24] Speaker 04: based on the circumstances of what's happening here? [00:01:29] Speaker 06: 100%. [00:01:30] Speaker 06: When you look at, say, you get, as your honors would know, if you get a decision on a disciplinary matter or something to that effect, there's a very bright line rule as far as when that appeal has to be filed, when the petition for enforcement has to file, or not petition for enforcement, but when a petition for review has to be filed, all those things under the board's precedent. [00:01:52] Speaker 06: are laid out for a complaint and for an appellant. [00:01:56] Speaker 06: Here, that's not the case. [00:01:57] Speaker 06: Here, all they have is that it must be filed within a reasonable time period, which, when left to the discretion of a prurose appellant, leaves very questionable when that reasonable time period runs, correct? [00:02:12] Speaker 06: And so in this case. [00:02:13] Speaker 01: And the basic facts, or at least the ones that have stuck in my mind, are that you waited until it was clear that you were harmed before basically initiating the preparation to seek relief from the board. [00:02:31] Speaker 01: And then it took four months for those preparations to result in a filing. [00:02:40] Speaker 06: Yes, Your Honor. [00:02:42] Speaker 06: basically the case. [00:02:44] Speaker 06: Immediately after DHS had rescinded his conditional law enforcement offer, that was on September 8, 2017, Mr. Wray recognized that the rescission might stem from the VA's disclosure, which was found later on, or I guess it was found in an OPR notice that there was something mentioned to a confidential statement, which would have been the alleged [00:03:10] Speaker 01: OPR, OPM? [00:03:12] Speaker 06: OPR, Office of Professional Responsibility. [00:03:15] Speaker 06: Because they had done some of the background investigation and checked into Mr. Reyes' application for the case. [00:03:21] Speaker 03: OK, I have a question. [00:03:23] Speaker 03: Is it, just so I understand for clarification purposes, is there a dispute here about, or has it just not reached the stage where there's a dispute because they're saying it's untimely? [00:03:35] Speaker 03: Is there a dispute over the question [00:03:38] Speaker 03: of whether the agency actually breached the settlement agreement? [00:03:45] Speaker 06: Absolutely, if it got to that point. [00:03:47] Speaker 06: But that's the issue. [00:03:48] Speaker 04: But the government, correct me if I'm wrong, the government has already responded. [00:03:51] Speaker 04: Because when they were responding to the MSPB, they argued both things, right? [00:03:57] Speaker 04: They argued untimeliness, and they also argued that the settlement agreement in this agency off the hook. [00:04:04] Speaker 06: Perhaps, yes. [00:04:05] Speaker 06: But I mean, there still should have been a hearing on either the credibility of that. [00:04:10] Speaker 06: I mean, there was a limited amount of discovery that was allowed for some reason by the administrative judge, despite the fact that he was going to dismiss the matter under a timeliness issue. [00:04:19] Speaker 06: We actually held a deposition of a human resources agent at the Department of Veteran Affairs. [00:04:25] Speaker 06: And so there was a limited amount of discovery. [00:04:27] Speaker 06: We could have went forward to a hearing and made a determination on a credibility basis [00:04:33] Speaker 01: A credibility about what? [00:04:35] Speaker 01: Well, credibility. [00:04:35] Speaker 01: I guess the thing that I keep focusing on in the settlement agreement, it says Mr. Race will not attempt to hold the agency liable or in breach of this settlement agreement for responses to communications. [00:04:53] Speaker 01: How does that not just say that's what you're complaining about? [00:04:59] Speaker 01: What's the actual issue? [00:05:01] Speaker 06: Sure. [00:05:01] Speaker 06: If you look at the settlement agreement also, Your Honor, it indicates that what the Human Resources Department was supposed to report specifically. [00:05:08] Speaker 01: Yeah, it goes on and for the first six months you got to go to the top dog and after that you go to the designee of the top dog and it says you're responsible, you, Mr. Race, for making sure that anybody who wants information goes to the right place. [00:05:24] Speaker 01: But even before you get to that, you have this disclaimer of responsibility for mistaken communications. [00:05:35] Speaker 06: Yes, Your Honor, there is a disclaimer in there about mistaken communications, but our argument, our contention was going to be that it was referred to HR, that HR didn't disclose the proper information that they were responsible for doing so in the settlement agreement. [00:05:56] Speaker 01: Also something that there hasn't been litigation about that maybe you can help me understand. [00:06:02] Speaker 01: So in your petition for enforcement, you say, [00:06:05] Speaker 01: either order the agency to stop saying stuff about the settlement agreement or unravel the settlement agreement. [00:06:19] Speaker 01: And we're going to now litigate, re-litigate the underlying removal back from 2013 or 14 or whatever. [00:06:28] Speaker 01: And that second would presumably require your client to pay back the money [00:06:35] Speaker 01: that he got in that to relitigate the thing from 12 years ago, I'm a little bit stumped about, I don't know, is this really a serious possibility? [00:06:53] Speaker 01: And of course, everything about the settlement agreement is now publicly aired in your filings. [00:07:00] Speaker 01: So what good would it do to order the agency in the future to stop revealing what's in the settlement agreement? [00:07:07] Speaker 01: You've made it all public. [00:07:10] Speaker 06: Well, Your Honor, I'd say, first off, on the issue of the 12 years, either by the political environment that we've been involved in or various other issues not necessarily at the fault of the board itself, [00:07:25] Speaker 06: We've been without a quorum on numerous occasions. [00:07:29] Speaker 06: We haven't been able to have petitions for reviews, actually followed through with petitions. [00:07:34] Speaker 03: I don't think that's Judge Toronto's question. [00:07:38] Speaker 03: I think Judge Toronto's question is, do you really want what you're asking for? [00:07:41] Speaker 03: Because what you're asking for is for us to unravel the settlement agreement. [00:07:44] Speaker 03: Your client got a lump sum payment of money in exchange for releasing his claims, and if we unravel that settlement agreement, he's got to pay that money back. [00:07:53] Speaker 03: And that seems like [00:07:55] Speaker 03: a risk for him, so is that really the relief he wants? [00:07:59] Speaker 06: Not necessarily, Your Honors. [00:08:03] Speaker 06: What can happen with a petition for enforcement, as you're very well aware, you could have specific enforcement [00:08:11] Speaker 06: which could include some form of damages based on the breach. [00:08:14] Speaker 04: So are you seeking relief? [00:08:15] Speaker 04: Are you seeking some damages because he didn't get the job and you're saying this breach was... Yes, and the specific performance. [00:08:22] Speaker 06: In the alternative to specific performance, you would also... No, I'm sorry. [00:08:27] Speaker 01: That would be part of a specific enforcement would be damages for the DHS position that he did not get. [00:08:42] Speaker 06: Not necessarily. [00:08:43] Speaker 06: I may have misspoke on the damages issue, but the fact of the matter is that you can get specific performance of the agreement. [00:08:50] Speaker 06: Would we want to go back and unravel the agreement? [00:08:53] Speaker 03: But I know you can get specific performance, but that was the Judge Toronto's question. [00:08:56] Speaker 03: It had like this two part to it. [00:08:57] Speaker 03: Part number one is, does he really want to give the money back and start over? [00:09:00] Speaker 03: Because he settled. [00:09:01] Speaker 03: And you've said not really. [00:09:03] Speaker 03: But part number two was, OK, well, the only other form of relief that he could get if we find ultimately for you here and then they find for you below, [00:09:12] Speaker 03: The only other form of release you can get is future-specific performance, i.e. [00:09:16] Speaker 03: HR people stop saying anything about the settlement agreement, and I guess, I think Judge Toronto's question to you was [00:09:23] Speaker 03: Well, goodness, everything about the settlement agreement is now public. [00:09:26] Speaker 03: I mean, all the HR lady said is, I can't give you information about him because there's a settlement agreement. [00:09:32] Speaker 03: Now there's way more out there about the settlement agreement by virtue of this action. [00:09:38] Speaker 03: So is that really relief that would be suitable or helpful to him at the end of the day, given that it's all public now? [00:09:47] Speaker 03: We're a little baffled about why the case is here. [00:09:49] Speaker 03: I'm not going to lie. [00:09:50] Speaker 03: We're kind of like, why are you here? [00:09:52] Speaker 06: Well, quite honestly, Judge, Your Honors, we're here because of the fact that if they breached the settlement agreement and also the issue of the fact that the administrative judge, if he would have retained it, if he would have not just dismissed it under a speculative delay and actually heard the merits of the case, [00:10:17] Speaker 06: We may have had a breach of settlement agreement decision years ago, but now. [00:10:22] Speaker 03: OK, I get that. [00:10:23] Speaker 03: I get maybe why you initiated the case. [00:10:26] Speaker 03: I'm kind of wondering why you're here, though. [00:10:28] Speaker 03: Why are we continuing? [00:10:30] Speaker 03: I mean, your client's paying money for this. [00:10:31] Speaker 03: I mean, you're continuing to appeal it. [00:10:33] Speaker 03: What does he think he's going to get out of it now? [00:10:35] Speaker 03: Because the cat's out of the bag on the settlement agreement. [00:10:38] Speaker 03: There's no putting the toothpaste back in the tube. [00:10:40] Speaker 03: It's all over the counter. [00:10:41] Speaker 03: So he can't get any relief that way. [00:10:44] Speaker 03: So why is he paying you to argue? [00:10:46] Speaker 03: What does he want? [00:10:47] Speaker 03: What does he think he'll get now? [00:10:49] Speaker 03: Not what did he think he'd get when he initiated. [00:10:51] Speaker 03: I hear you. [00:10:52] Speaker 03: I see that. [00:10:53] Speaker 03: But what's he going to get now? [00:10:54] Speaker 03: Say I fine for you. [00:10:55] Speaker 03: Yep. [00:10:56] Speaker 03: His delay was reasonable. [00:10:57] Speaker 03: It's not untimely. [00:10:58] Speaker 03: Go back. [00:10:59] Speaker 03: He's going to keep paying you to... [00:11:01] Speaker 03: argue what is the relief he has any chance of getting and how's it going to help him? [00:11:06] Speaker 03: I mean sometimes as lawyers don't we have to advise our clients what's in their best interest not just whether they can possibly win an issue but if they win are they really gonna win anything? [00:11:17] Speaker 06: I mean it's quite possible that he will win something if we go back below and there is the decision that there was a breach of the settlement agreement and [00:11:26] Speaker 06: I mean, we could argue and contend for that there were damages. [00:11:30] Speaker 06: We could contend that there were his attorney fees. [00:11:34] Speaker 06: We could contend that this was all a result of his lost job with DHS. [00:11:41] Speaker 06: I mean, so there is that argument to be made. [00:11:44] Speaker 06: I understand. [00:11:45] Speaker 06: I understand. [00:11:46] Speaker 06: I'm not saying that I necessarily want to go back to relitigate a 2013 case. [00:11:51] Speaker 06: whether or not Mr. Reyes was potentially removed under, you know, legal standards, you know, but that would be an option for him should he decide or choose to do it. [00:12:07] Speaker 06: I see that my time has expired as far as my... Oh, yes. [00:12:13] Speaker 03: Do you want to save the rest for a bottle? [00:12:14] Speaker 03: Yes, please. [00:12:14] Speaker 03: Sure, that'd be great. [00:12:16] Speaker 03: Ms. [00:12:16] Speaker 03: Fletcher, please proceed. [00:12:26] Speaker 05: May it please the court? [00:12:28] Speaker 05: The board cannot abuse his discretion in this case by finding that Mr. Reyes failed to file promptly where he waited 14 months after receiving written evidence [00:12:37] Speaker 05: of the alleged breach before filing his petition. [00:12:40] Speaker 04: But there's a standard of reasonableness that applies here. [00:12:43] Speaker 04: There's no clear delineation of the time frame. [00:12:47] Speaker 04: So it's based on the circumstances of each case, correct? [00:12:50] Speaker 04: Yes, Your Honor. [00:12:50] Speaker 05: What is reasonable under the facts and circumstances? [00:12:53] Speaker 04: So when he first learned about this in November 16, he had no idea whether this was going to have any consequence to his ultimately getting the job. [00:13:01] Speaker 04: He had a conditional job offer. [00:13:04] Speaker 04: And he knew in his mind. [00:13:07] Speaker 04: the agency had done something wrong, arguably a breach of the settlement agreement. [00:13:12] Speaker 04: But he had no idea if there would be any consequence. [00:13:15] Speaker 04: And if he had, in fact, filed, it would have made more of the fact that there was a settlement agreement and there was litigation. [00:13:25] Speaker 04: I mean, that would be kind of upfront and center. [00:13:27] Speaker 04: So why on earth would we want to have rules that incentivize people to move forward prematurely when there is no consequence? [00:13:36] Speaker 04: And possibly, it would have been avoided. [00:13:40] Speaker 04: If he got the job, there's no reason for him to file, right? [00:13:43] Speaker 04: Why would we want to have a system that incentivizes people having to litigate sooner than is necessary out on cases that may go away on their own? [00:13:53] Speaker 05: Well, Your Honor, I want to respond [00:13:57] Speaker 05: First of all, it was actually Mr. Reyes who gave the agency the settlement agreement. [00:14:04] Speaker 05: And I believe he gave that to them. [00:14:08] Speaker 04: Well, that's because after he learned that the cat was out of the bag, right? [00:14:12] Speaker 05: Yes, after he received the first, during his interview with the background investigation. [00:14:17] Speaker 05: And it was in November 2016 that he finally got the written record. [00:14:22] Speaker 04: But isn't that all the more reason why he wouldn't been incentivized to file [00:14:27] Speaker 04: allegations at that time when he thought he still had the job. [00:14:30] Speaker 04: He was being upfront. [00:14:31] Speaker 04: He said, OK, they reached the settlement agreement, allegedly. [00:14:36] Speaker 04: This is a problem, but I have no reason to believe it's going to sabotage my conditional offer. [00:14:47] Speaker 04: What was his intention to file? [00:14:49] Speaker 04: And why does it matter that he gave them the settlement agreement? [00:14:52] Speaker 04: That was perfectly a reasonable thing to do under the circumstances, was it not? [00:14:57] Speaker 05: Well, Your Honor, his incentive to file would be to enforce the settlement agreement with the conditions that he negotiated for. [00:15:04] Speaker 05: He negotiated for this NDA, this non-disclosure provision, and so he has every reason [00:15:14] Speaker 05: to seek to enforce that promise? [00:15:16] Speaker 03: No, no, he doesn't. [00:15:17] Speaker 03: That's not reasonable. [00:15:18] Speaker 03: That is just not reasonable. [00:15:19] Speaker 03: You're talking about an individual person, and the agency allegedly breached the agreement and revealed something. [00:15:26] Speaker 03: But he had no reason to think that revelation was going to cause him not to get the job. [00:15:31] Speaker 03: He had an offer. [00:15:31] Speaker 03: He had a conditional offer for this job. [00:15:34] Speaker 03: And the agency breached in his background check and said stuff they weren't supposed to, according to him. [00:15:39] Speaker 03: But he still thought he was going to get the job. [00:15:42] Speaker 03: It's not reasonable to say, go to court and fight the breach, when there might not have been any harm at all from this breach. [00:15:48] Speaker 03: Maybe the breach was small. [00:15:50] Speaker 03: Maybe it was insignificant. [00:15:51] Speaker 03: Maybe it wouldn't affect whether he got the job. [00:15:54] Speaker 03: It's not reasonable to say, go enforce the settlement agreement when there's no harm from the breach. [00:16:01] Speaker 03: It's reasonable for him to wait to see if he's harmed first. [00:16:05] Speaker 05: Well, Your Honor, I respectfully disagree, because the board's regulations are clear. [00:16:11] Speaker 03: it's this is a petition for what regulation what regulation the only regulation says he has to pursue it within a reasonable time that leaves it open to question what is reasonable under a set of facts and the set of facts we know here is for the first 10 months he thought there was no harm that was going to come to him by virtue of the [00:16:33] Speaker 03: the agency's breach. [00:16:34] Speaker 03: So why would it be reasonable for someone to run to court? [00:16:38] Speaker 03: Do we really want to clog our court system with cases that have no damages? [00:16:43] Speaker 03: I sure don't. [00:16:44] Speaker 03: I'm a judge. [00:16:44] Speaker 05: Please don't file those. [00:16:48] Speaker 05: In fact, the board's standards don't require appellants to run to court. [00:16:53] Speaker 05: In fact, there's the Martin case in which that appellant, she had a delay of several months because she was working with the agency, communicating with them, trying to get compliance with the settlement agreement that she had negotiated. [00:17:07] Speaker 03: And this guy had no damages. [00:17:09] Speaker 03: For 10 months, he did not believe that he had been damaged by virtue of this disclosure. [00:17:13] Speaker 03: So why would he rush to court? [00:17:17] Speaker 05: Well, Your Honor, because he's interested, because he wants the VA, presumably, to stop talking about the settlement agreement. [00:17:24] Speaker 05: That was why, I mean, that's ultimately why he brought it. [00:17:26] Speaker 03: Respectfully, I don't think that's reasonable at all. [00:17:28] Speaker 03: Is there a standard review I need to apply for reasonableness? [00:17:31] Speaker 03: Yes, Your Honor. [00:17:32] Speaker 05: What would that be? [00:17:33] Speaker 05: Abuse of discretion, Your Honor. [00:17:34] Speaker 03: Which means error of law or what? [00:17:37] Speaker 05: Or lacking, not supported by substantial evidence. [00:17:41] Speaker 05: And in here, there is substantial evidence. [00:17:43] Speaker 03: What's the substantial evidence? [00:17:44] Speaker 03: Should we pull the jury? [00:17:45] Speaker 03: How many people think you should go to court if you have no damages? [00:17:51] Speaker 03: I don't see any hands. [00:17:52] Speaker 03: No hands are raised. [00:17:53] Speaker 05: Well, Your Honor, there's no requirement that you have damages in a case like this that's under the board's precedence, Young versus USPS. [00:18:02] Speaker 03: In fact, there's no requirements. [00:18:04] Speaker 03: But we have to assess reasonableness. [00:18:07] Speaker 05: Yes, Your Honor. [00:18:08] Speaker 05: Yes, Your Honor. [00:18:10] Speaker 05: It's just, I respectfully, the MSPB disagrees. [00:18:15] Speaker 05: We, there's, you know, perhaps, and it's also, one thing that I do want to emphasize is that the board is a tribunal of limited jurisdiction. [00:18:28] Speaker 05: We're not a court, not a, you know, a court of general jurisdiction. [00:18:32] Speaker 05: So we don't necessarily have the power to award damages. [00:18:36] Speaker 05: on a bonding of breach is not like consequential damages like Mr. Reyes is requesting. [00:18:42] Speaker 05: What it is is a petition for enforcement. [00:18:44] Speaker 01: Just how much is built into your word necessarily? [00:18:49] Speaker 01: Are you asserting that the board does not have the authority to award damages? [00:18:56] Speaker 01: Let's just focus on the very specific thing. [00:18:59] Speaker 01: The loss of the increase in salary [00:19:04] Speaker 01: he would have gotten if he had gotten the DHS job. [00:19:09] Speaker 01: That is, the board just can't do that. [00:19:11] Speaker 01: Is that correct? [00:19:12] Speaker 05: Yes, that's correct, Your Honor. [00:19:14] Speaker 05: We have jurisdiction to enforce the settlement agreement. [00:19:18] Speaker 05: And if this had been a settlement agreement, for example, that had some kind of provision that allowed us to award damages, then that would be a different case. [00:19:25] Speaker 05: But in this case, the settlement agreement doesn't provide that. [00:19:28] Speaker 05: In fact, the settlement agreement appears [00:19:31] Speaker 05: it doesn't even appear to allow him to file a claim, as you pointed out, based on communications. [00:19:40] Speaker 05: You seem to have weighed that. [00:19:42] Speaker 04: Yeah, but that would have been, I think you would have gotten this panel less exercised if you had gotten into the merits of this and decided it based on what the settlement agreement says. [00:19:53] Speaker 04: But that's not the case before us. [00:19:55] Speaker 01: Yes, that is correct, daughter. [00:19:57] Speaker 01: And what about the, [00:19:59] Speaker 01: the discussion we were having with Mr. Shremec about kind of what are we doing here? [00:20:11] Speaker 01: He's not, I assume, not prepared to, assume he's not prepared to give back the non-trivial amount of money he got, perhaps with interest, and go back and re-litigate the removal that led to the settlement agreement. [00:20:25] Speaker 01: So petition, what's left then in his [00:20:29] Speaker 01: one or the other remedy request at the end of his petition for enforcement is, tell the agencies to stop telling people about the settlement agreement. [00:20:38] Speaker 01: Well, to exaggerate, the whole world knows about the settlement agreement right now. [00:20:45] Speaker 01: Is there anything that we should be doing with that bafflement about whether resolving this question of whether it's [00:20:58] Speaker 01: just not unreasonable as a matter of law to wait and see if you're armed before going forward? [00:21:08] Speaker 01: Or is this just all kind of we don't know, so we can't do anything about it, and maybe this will all end if we became remand or something? [00:21:20] Speaker 05: Well, Your Honor, I mean, I would say that [00:21:27] Speaker 05: I mean, to me, it almost appears like the case is moot, or almost like any error by the MSPB is almost harmless. [00:21:36] Speaker 05: Like there's really nothing. [00:21:38] Speaker 05: But that was not, you know, this is an issue that could be determined by the MSPB on remand that the court found it appropriate. [00:21:46] Speaker 05: But we would submit that the board didn't abuse this discretion. [00:21:50] Speaker 05: The board [00:21:51] Speaker 05: In this case, this court held in poet that in of the time to file your petition for enforcement runs from when the appellant has actual knowledge of the alleged breach. [00:22:01] Speaker 01: Right. [00:22:02] Speaker 01: But just to the next step, though, it seems to me, is let's assume that the time for petition for reinforcement begins to run when you [00:22:16] Speaker 01: have actual knowledge more than suspicion, in those cases, the other one, but the K. Kowalski or something. [00:22:22] Speaker 01: Kowalski, yes. [00:22:23] Speaker 01: Kowalski, sorry. [00:22:26] Speaker 01: In both of which, the complainant won, because there was an effort to say you had to think about it even before. [00:22:32] Speaker 01: But assuming that's the starting point, there then remains the question, is it nevertheless unreasonable from that starting point [00:22:40] Speaker 01: to wait and see if you're harmed before you undertake the expense and effort of filing something. [00:22:51] Speaker 01: I don't think the starting point really answers, gets you all the way to the board's conclusion. [00:22:58] Speaker 05: Yes, Your Honor. [00:22:59] Speaker 05: And we believe that substantial evidence, actually I'm sorry, pardon me. [00:23:06] Speaker 05: But the board didn't abuse his discretion in finding that that 14-month delay was unreasonable. [00:23:10] Speaker 05: Because in this case, Mr. Reyes did not offer any explanation for what he was doing between November 2016 and January 2018. [00:23:18] Speaker 05: It's just not consistent with the case law or with the approach under the risk statement that you have to wait until you get consequential damages from a breach of contract. [00:23:31] Speaker 04: I wanted to move on, so finish your answer. [00:23:35] Speaker 05: Yes. [00:23:35] Speaker 05: So under the restatement, section 235, which is coincided in Kosarski, is that a breach of contract is simply the nonperformance of the contractual duty. [00:23:46] Speaker 05: And the restatement makes it clear that breach doesn't have to be substantial in order to be material. [00:23:52] Speaker 05: And there's no requirement of pecuniary harm under the board's cases. [00:23:55] Speaker 05: Or we can look to the Supreme Court in Delaware State College. [00:24:01] Speaker 05: discussing claim accrual general, they have a case where they say the focus for when a claim accrues is at the time of the defendant's actions, not upon the time at which the consequences of the act become most painful. [00:24:13] Speaker 05: And that's what happened to Mr. Reyes here. [00:24:15] Speaker 05: He waited until the consequences became most acute, but the breach [00:24:22] Speaker 05: happened many months before. [00:24:23] Speaker 04: And I just want to take back to, because Judge Toronto raised a very correct point, which is, but it bothers me, because in a lot of these cases, if you're going to litigate a breach of a settlement agreement, that's going to become public in some way, shape, or form. [00:24:37] Speaker 04: And you mentioned in passing the word moot. [00:24:41] Speaker 04: You're not suggesting, I mean, I guess I'm bothered by, hypothetically, if we have a case where there's a breach of settlement agreement, and it's a clear breach. [00:24:48] Speaker 04: I mean, we would all sit here and agree the settlement has been breached. [00:24:53] Speaker 04: But he's not, you know, it's passage of time or whatever. [00:24:58] Speaker 04: He's not harmed. [00:25:01] Speaker 04: But shouldn't reasonably an employee say, I don't have the right to pursue that, even though it's not going to help me now because everything's public, because I want to enforce the agency's obligation to adhere to settlements agreements it reaches with its employees. [00:25:18] Speaker 04: So the case wouldn't necessarily be mooted out in all circumstances where [00:25:23] Speaker 04: Well, now the cat's out of the bag now, or the toothpaste back in the tube, as the chief said. [00:25:30] Speaker 05: Yeah, so that's correct, Judge Gross. [00:25:32] Speaker 05: He has a legal right to pursue enforcement of his settlement agreement. [00:25:36] Speaker 05: And whether it's a practical matter, that's something that an appellant wants to do. [00:25:42] Speaker 05: That is a separate question. [00:25:44] Speaker 05: I do think he has the right to pursue it, even if it seems like there's not much benefit to it. [00:25:55] Speaker 05: Your Honor, we would ask in the alternative that if you believe that, you know, if you find that it was reasonable for him to, that he had essentially had actual knowledge of the breach in September 2017, we would ask this court to uphold the board's alternate holding that the four-month delay was unreasonable. [00:26:20] Speaker 05: In this case, the board did have some reasoning [00:26:24] Speaker 05: in the footnotes that George Moore referenced, where it said that he just did not explain. [00:26:32] Speaker 05: He said, other than asserting that he was waiting until he had secured legal counsel to file a petition for enforcement, the appellant has not offered any explanation for his untimeliness. [00:26:43] Speaker 05: And then it's cited to some cases holding that seeking counsel or if it's not, [00:26:47] Speaker 05: you know, establish good cause for untimeliness. [00:26:50] Speaker 01: And in fact, there's the... Why should those cases be applicable? [00:26:56] Speaker 01: I mean, it's one thing when there's a legislative rule that says you have 60 days to do this, at which point good cause is a true, true exception. [00:27:08] Speaker 01: We don't have an untimely... We don't start from a premise that this was untimely and you're now [00:27:17] Speaker 01: you know, pleading for mercy. [00:27:20] Speaker 01: We have a standard that has no numbers in it. [00:27:26] Speaker 01: It's not until you figure out if the action was reasonable that you can conclude as a conclusion, not as a premise, that it was untimely. [00:27:35] Speaker 01: So it's not clear to me why the same pretty demanding standard for good cause from a actual violation of the time limit [00:27:46] Speaker 01: should apply to this circumstance. [00:27:50] Speaker 05: Your Honor, I see my time is run. [00:27:51] Speaker 05: May I answer? [00:27:53] Speaker 05: Thank you. [00:27:55] Speaker 05: Your Honor, we believe that ultimately it's similar issues of timeliness. [00:28:03] Speaker 05: Yes, it's correct that there is no hard and fast deadline. [00:28:07] Speaker 05: It's based on promptness. [00:28:09] Speaker 05: However, ultimately, and I believe [00:28:15] Speaker 05: Just want to also, I would know that this court in the Arnold case actually cited Alonzo, which is Alonzo v. Department of the Air Force, which is a case about timeliness and good cause. [00:28:28] Speaker 05: So this court has also kind of viewed, analyzed these issues in similar ways. [00:28:33] Speaker 05: But in fact, I believe it was in Kosarski, they said the petition for enforcement's presumed timeliness and timely. [00:28:42] Speaker 05: If that's rebutted, then the burden is on the appellant to show facts establishing timeliness. [00:28:49] Speaker 05: And that was held in Kosarski. [00:28:51] Speaker 03: And so I'm just out of curiosity. [00:28:53] Speaker 03: Do you have any cases that held a four-month delay was not reasonable? [00:28:59] Speaker 05: No, Your Honor. [00:29:00] Speaker 05: But it's not based. [00:29:01] Speaker 05: It's not mechanical, like a four months is per se reasonable. [00:29:05] Speaker 05: It's based on the facts and circumstances. [00:29:08] Speaker 05: So what were you doing in those four months? [00:29:10] Speaker 03: But you have no case that said four-month delay was an unreasonable amount of time. [00:29:16] Speaker 05: Your Honor, I'm not aware of such a decision. [00:29:18] Speaker 03: In fact, aren't there one, two, three, four cases that you all cited which resulted in a four-month delay being found to be a reasonable amount of time? [00:29:26] Speaker 03: I'm referring in particular to Phillips, Bostic, Martin, all of those involved four-month delays, and those four-month delays were all held to be a reasonable amount of time. [00:29:36] Speaker 05: Well, Your Honor, those cases are distinguishable. [00:29:38] Speaker 05: For example, in Martin, which I think is very germane, that was a case where the appellant was negotiating with the agency. [00:29:47] Speaker 05: She found out about the noncompliance, and she went to the agency to try to settle it informally, highlighting the concern that the panel has raised. [00:29:56] Speaker 03: And did Mr. Reyes go to DHS about this? [00:29:58] Speaker 03: I mean, it turns out he went to the wrong people. [00:30:00] Speaker 03: But didn't he try to go to somebody about it? [00:30:03] Speaker 05: He communicated with OPM. [00:30:05] Speaker 05: I'm not certain, Your Honor, about DHS, but the agency that was relevant was the VA, which was the agency that he had the settlement agreement with. [00:30:13] Speaker 03: I think he also tried to communicate with DHS. [00:30:15] Speaker 03: My clerk is nodding his head. [00:30:17] Speaker 03: I'm betting he knows. [00:30:18] Speaker 05: Yes. [00:30:19] Speaker 05: Then, yes. [00:30:20] Speaker 05: But that's another. [00:30:23] Speaker 05: It's like going to a third party and talking to them. [00:30:27] Speaker 03: And I think that AJ actually found. [00:30:28] Speaker 03: He's per se. [00:30:29] Speaker 03: And he went to the government, and he tried to see if he could get some relief. [00:30:32] Speaker 03: He went to the wrong people, it turns out. [00:30:34] Speaker 03: But it's not like he did nothing during that four months. [00:30:37] Speaker 05: No, but he is aware that the agency that he made the settlement agreement with, the agency that had contractual duties, was the VA, not DHS. [00:30:47] Speaker 02: Fair enough. [00:30:47] Speaker 02: OK, let's hear from Mr. Sremmick. [00:30:51] Speaker 02: He has some model time. [00:30:57] Speaker 06: Thank you, Your Honor. [00:30:58] Speaker 06: And not only did Mr. Reyes reach out to DHS and OPM, upon identifying that once the old council was involved, they also attempted to negotiate with the VA. [00:31:13] Speaker 06: They sent notice to the VA that they were going to be filing a petition for enforcement. [00:31:17] Speaker 06: The VA didn't respond, and then the breach of a petition for enforcement was filed. [00:31:23] Speaker 06: So that is very similar to the case in Martin where there was some discussion or negotiation or attempt to negotiate. [00:31:31] Speaker 06: I would also say that the questions being posed by your arms are spot on in the sense that there is no [00:31:40] Speaker 06: delineation of time. [00:31:42] Speaker 06: And even if you look at the Arnold case, which was just referenced recently, which is non-precedential, by the way, but does follow a long line of the cases that were mentioned, Kacarski and others, you see that one of the issues in that case is that there was no distinct amount of time provided to Mr. Arnold to file his petition for enforcement. [00:32:06] Speaker 06: So that was an issue that the court actually looked at. [00:32:08] Speaker 06: Now, in that particular case, that appellant was dealing with a, I believe it was a disability claim, and that was what ultimately delayed his decision. [00:32:18] Speaker 06: But going back to what has been discussed a lot here today during oral argument is exactly the case, is that [00:32:25] Speaker 06: First of all, reasonable is arbitrary. [00:32:27] Speaker 06: Second of all, Mr. Reyes, in this particular case, did take steps. [00:32:31] Speaker 01: I'm sorry. [00:32:32] Speaker 01: Reasonable is arbitrary? [00:32:33] Speaker 06: Well, not arbitrary. [00:32:34] Speaker 06: I'm sorry. [00:32:35] Speaker 06: Reasonable is vague. [00:32:36] Speaker ?: Thank you. [00:32:38] Speaker ?: Thank you, Your Honor. [00:32:39] Speaker ?: Reasonable is vague. [00:32:41] Speaker 06: And in this particular case, it's clear that Mr. Reyes did take steps. [00:32:44] Speaker 06: Now, the other issue, as I see I have a minute left, that was addressed is, OK, well, [00:32:53] Speaker 06: Why, why file a petition for enforcement? [00:32:56] Speaker 06: Why, why do it at this point? [00:32:58] Speaker 06: Well, honestly, sometimes when a decision is wrong, when a decision is incorrect or it doesn't provide, is that providing [00:33:07] Speaker 06: Appellants with the proper information as far as within a decision as to when a petition for enforcement should be filed. [00:33:15] Speaker 06: That's important to delineate because it's going to cease things that we're talking about here. [00:33:21] Speaker 06: Unnecessary filings with petitions of enforcement at the board. [00:33:25] Speaker 06: You mean for other people? [00:33:26] Speaker 03: Yeah. [00:33:27] Speaker 03: And if that's Mr. Reyes' altruistic goal, that's great, but as his counsel, I do hope that you will appropriately advise him of the likelihood of any actual personal gain that he might get. [00:33:41] Speaker 03: Even if you succeed and the whole thing is not untimely, it's hard for me looking at this case. [00:33:47] Speaker 03: to think that Mr. Reyes has any chance of any sort of remuneration, any sort of damages, both because the board is not allowed to provide that in a petition for enforcement, as well as because the settlement agreement has warts that we haven't discussed. [00:34:02] Speaker 03: So I do hope that you'll communicate that to him. [00:34:04] Speaker 03: If you get a redo and your whole thing is not untimely, he needs to figure out if he wants to keep spending money on this under those circumstances. [00:34:13] Speaker 06: Thank you, Your Honor. [00:34:15] Speaker 06: And I see I'm over my time, but thank you, Your Honors. [00:34:19] Speaker 06: And just to ask again that the matter be remanded for review and hearing. [00:34:26] Speaker 06: Thank you. [00:34:26] Speaker 03: We thank counsel. [00:34:27] Speaker 03: Case is taken out of submission.