[00:00:00] Speaker 01:
Our final case this morning is number 241638, 10 minutes with the DHS.

[00:00:08] Speaker 04:
My name is DeShart.

[00:00:10] Speaker 04:
Thank you, Your Honor.

[00:00:11] Speaker 04:
The main case in court, Andrews Roever, put the petitioner in this case to finalize.

[00:00:16] Speaker 04:
In our briefs, we raise three arguments.

[00:00:18] Speaker 04:
The first challenging, whether there is substantial evidence to support the MSP's decision.

[00:00:23] Speaker 04:
I'm the first charge in this case.

[00:00:25] Speaker 04:
The second challenging, the method used by the board to assess

[00:00:28] Speaker 04:
the maximum reasonable penalty in this case, and the third, challenging the penalty itself.

[00:00:34] Speaker 04:
I would like to begin with the second point today, which we see as the key legal issue in this case.

[00:00:40] Speaker 04:
In Luchance versus Deval, it's court held that when the board sustains fewer than all of an agency's charges, and the record does not indicate that the board would have imposed a lesser penalty on the sustained conduct, the board must independently balance the Douglas-Backers to determine the maximum reasonable penalty.

[00:00:58] Speaker 04:
In this case, the board sustained only one of four charges that the agency brought against Agent Timmons, and the agency gave no indication that it would have imposed a lesser penalty.

[00:01:08] Speaker 04:
Accordingly, the chance is squarely applied, and the board was required to independently balance the federalist factors.

[00:01:15] Speaker 04:
A plain reading of the board's opinion makes clear that it failed to do so.

[00:01:19] Speaker 01:
On page 19, the board says, we find the deciding official properly considered the factors of Douglas, and that the penalty of removal is reasonable in the light of the sustained charge.

[00:01:32] Speaker 04:
Yes, Your Honor.

[00:01:33] Speaker 04:
That's it.

[00:01:35] Speaker 04:
Well, the first part of it is wrong, Your Honor.

[00:01:37] Speaker 04:
I would respectfully submit in that it says, we find the deciding official properly considered the factors set forth in Douglas.

[00:01:45] Speaker 04:
The emphasis in that sentence, as I've just read, is on my own, but the point is clear.

[00:01:50] Speaker 04:
The board was not weighing the Douglas factors as it was required to do, but instead assessing how the deciding official had done it himself.

[00:01:59] Speaker 02:
So what about the next page, page 20, the sentence where they go on to discuss certain factors that consider a felon's status in the sentence?

[00:02:10] Speaker 02:
Why is that not independent of the valuation?

[00:02:13] Speaker 04:
I think you're referring to the one that starts out by, for example, noticing his status as a law enforcement officer.

[00:02:18] Speaker 04:
That seems like the last sentence of that.

[00:02:22] Speaker 04:
I would say a couple things.

[00:02:27] Speaker 04:
The first thing is, that's one sentence in many, eight or nine, depending on how you count them, in which the board is clearly looking over the shoulders of the deciding official, emphasizing what the deciding official looked at, emphasizing what he considered.

[00:02:43] Speaker 04:
So it's hard to tell whether that is just, even to some extent.

[00:02:46] Speaker 01:
They're supposed to do that, right?

[00:02:47] Speaker 01:
They're supposed to decide the size of the shop was reasonable.

[00:02:52] Speaker 01:
And then they're supposed to come on and make their own.

[00:02:56] Speaker 01:
And the determination is supposed to do both, right?

[00:02:57] Speaker 04:
Well, in the Luchant situation, the board itself is supposed to independently balance in my sense.

[00:03:02] Speaker 01:
That's the second part.

[00:03:04] Speaker 01:
I would say they only did one.

[00:03:18] Speaker 04:
I mean, I think in one, they're determining, they're making some sense.

[00:03:22] Speaker 03:
that last sentence, the considering sentence, is it's anything but their independent evaluation.

[00:03:28] Speaker 03:
Are you saying that in the old chance situation, we require them to go through each Douglas Factor themselves and say that they weigh in the paper of removal as the maximum reasonable penalty?

[00:03:41] Speaker 03:
No, Your Honor.

[00:03:41] Speaker 03:
I don't think they have to... So all we have to do is discern from this opinion that they have independently come to the conclusion that the penalty is a maximum or additional penalty.

[00:03:54] Speaker 03:
I don't think... I don't think that's correct.

[00:03:56] Speaker 04:
I think that... I'm sorry.

[00:03:57] Speaker 04:
That is the standard.

[00:04:01] Speaker 03:
I agree that that's the ultimate conclusion, but the method is the board has to balance the factors itself.

[00:04:18] Speaker 04:
Here it's clearly

[00:04:22] Speaker 03:
And then can you go through all the specific factors that are relevant and say why that reaches maximum resultability?

[00:04:30] Speaker 04:
Yes, I am saying it has to do that.

[00:04:33] Speaker 04:
Whether it has to explicitly state in the opinion that it did that is a different question.

[00:04:37] Speaker 04:
What I'm saying is it has to, it could, for example, say we have independently evaluated all of the relevant factors.

[00:04:44] Speaker 04:
We think the relevant factors are 1, 5, 7, and 9.

[00:04:48] Speaker 04:
You know, the evidence on factor 1 says X, so on and so forth.

[00:04:51] Speaker 04:
The evidence on factor 3 says X. Here's how we view that evidence.

[00:04:55] Speaker 04:
Here, there's just no indication that he did that.

[00:04:58] Speaker 04:
And, you know, getting back

[00:04:59] Speaker 03:
Except they know what they are.

[00:05:02] Speaker 03:
They looked at what the deciding official did.

[00:05:05] Speaker 03:
And they suggested that the deciding official did it right.

[00:05:09] Speaker 03:
And then they say, independently, we find that it doesn't exceed the tolerable limits of racial bias.

[00:05:15] Speaker 03:
I think the second part of that is- I think you're imposing a burden on them to go through the helpless factors in its opinion that's not present in the law.

[00:05:24] Speaker 03:
in our case law.

[00:05:26] Speaker 04:
I would respectfully disagree with that.

[00:05:28] Speaker 04:
I mean, I think it's clear that what they're doing here is looking over the shoulder so excitedly.

[00:05:33] Speaker 03:
We're reading this opinion differently.

[00:05:34] Speaker 03:
So let's just go with the way I'm reading it, which is they have evidence that they have determined independently that this is the maximum reasonable penalty.

[00:05:44] Speaker 03:
And what I think you're arguing is they have to show their work by specifically discussing about those factors.

[00:05:51] Speaker 03:
If that's what you're arguing, then where is that in our call?

[00:05:56] Speaker 04:
I think it is in Lachance.

[00:05:58] Speaker 04:
It's in Williams.

[00:05:59] Speaker 04:
It's in Moreno.

[00:06:00] Speaker 04:
I mean, in Williams or Moreno or both, the judge that basically says, that basically quote language very similar to a lot of this language that the board used in this case, where they're saying, we find that the deciding official reasonably balanced the donuts faster.

[00:06:16] Speaker 04:
So to make it clear, that is not right.

[00:06:18] Speaker 03:
That's not the standard.

[00:06:20] Speaker 03:
This discussion had ended on page 20 before the considerate dissent.

[00:06:26] Speaker 03:
And it didn't also have the stuff we talked about earlier, where they seemed to also suggest that they agreed with this penalty.

[00:06:37] Speaker 03:
You might have an argument.

[00:06:38] Speaker 03:
And sure, it could be more explicit.

[00:06:41] Speaker 03:
This last sentence is their independent judgment of the appellate status of a law enforcement officer, all the facts of this case, and the conclusion that the removal doesn't exceed the tolerable limits.

[00:06:55] Speaker 03:
That's their conclusion under the Douglas Factors.

[00:06:58] Speaker 03:
I would again say that it is a conclusion.

[00:07:00] Speaker 03:
I would say that the first thing is the first thing.

[00:07:02] Speaker 03:
Let me ask you this.

[00:07:03] Speaker 03:
If we see that that is a conclusion that evidences their intent to analyze the Douglas Factors, then you've lived right.

[00:07:12] Speaker 04:
If you believe that they independently weighed the Douglas-Fackers, if that sentence indicates to you that they did that independently, then under LeChance, yes, he's going to be a problem for us.

[00:07:25] Speaker 04:
But what I would say is a couple things with regard to that sentence.

[00:07:28] Speaker 04:
Number one, the first thing they referred to is law enforcement.

[00:07:31] Speaker 04:
That's something the deciding official emphasized.

[00:07:33] Speaker 04:
Then they referred to affidavits.

[00:07:35] Speaker 03:
I mean, is it natural that they looked at stuff the deciding official did?

[00:07:39] Speaker 03:
Because they went through and said, here, the deciding official looked at all the relevant types of those factors.

[00:07:44] Speaker 03:
Which they have to do, because if the deciding officials look at the relevant of those factors, they don't even get to their view of whether it's a maximum reasonable penalty.

[00:07:54] Speaker 03:
So they're aware of the factors, and then they say, we find also that it's the maximum reasonable penalty.

[00:08:00] Speaker 04:
I disagree.

[00:08:01] Speaker 04:
I think the emphasis, and I'm sorry to keep harping on this emphasis.

[00:08:04] Speaker 03:
No, I understand.

[00:08:05] Speaker 03:
You're making your best case for your client, which is most of their analysis is about the deciding official.

[00:08:11] Speaker 03:
They don't go into great detail, their reasoning as to why they independently do it.

[00:08:17] Speaker 03:
But this is up to us basically to read this decision and think they've done it up.

[00:08:21] Speaker 03:
And that last sentence coupled with the other couple said, also with the fact that they properly cited the right standard,

[00:08:28] Speaker 03:
and they made the initial finding that the agency would have done this, then it's up to us to determine whether we think that they applied the right standard or not.

[00:08:38] Speaker 04:
I would submit, though, respectfully, number one, there's a lot of evidence here that they are looking over the shoulder of the deciding official.

[00:08:45] Speaker 04:
And I want to be clear with that.

[00:08:47] Speaker 03:
Here's what you're not separating now, is they have to do that first before they even get to their job of deciding whether it's the maximum result that they need.

[00:08:57] Speaker 03:
Because if they haven't gone through all of that stuff about the deciding official looked at all these factors and just said, we think this is good enough, you would be up here arguing that they failed to determine whether the deciding official in the first instance

[00:09:10] Speaker 03:
apply to Douglas Factors?

[00:09:13] Speaker 04:
Well, what I would argue is this.

[00:09:16] Speaker 04:
When I read the chance, I see it as the key difference, or one of the key differences, between the sort of standard Douglas argument is, when you look at Douglas, that's the first prong, is did the deciding official properly weigh the factors?

[00:09:29] Speaker 04:
That's standard Douglas.

[00:09:30] Speaker 04:
That is, the agency made two charges, proved two charges.

[00:09:34] Speaker 04:
Well, Chance says, once the agency doesn't put the charge, then it's locked.

[00:09:39] Speaker 03:
If instead of the sentence they had, maybe one through all, they have that extensive discussion of the deciding official's Douglas analysis, and they've written a sentence that said, we have also independently looked at the Douglas factors and agree with the deciding official.

[00:09:55] Speaker 03:
Is that good enough?

[00:09:56] Speaker 04:
If they're, yeah, I mean, I would say that is better.

[00:09:58] Speaker 04:
No doubt that is better.

[00:10:00] Speaker 04:
And I'm not saying, again, that they have to trot out all 12 factors.

[00:10:03] Speaker 04:
But I'm saying that the standard is independent, independently balanced.

[00:10:08] Speaker 04:
What evidences are here that they've independently balanced?

[00:10:10] Speaker 04:
Think about the things they could have done.

[00:10:12] Speaker 04:
They could have cited the Douglas Factors.

[00:10:14] Speaker 04:
They could have cited evidence under the Douglas Factors.

[00:10:17] Speaker 04:
Doesn't mean they have to trot out all of them, but they could have trotted out some of them.

[00:10:20] Speaker 04:
The other thing I would say here is I would make a distinction between looking at the agency's evidence, which clearly they would have to do if they're independently doing that, looking at evidence under various factors.

[00:10:32] Speaker 04:
And I would distinguish that from the ultimate decision that the agency made.

[00:10:35] Speaker 04:
That's deference.

[00:10:36] Speaker 04:
And I don't believe that that's the chance.

[00:10:38] Speaker 04:
The other thing I would point out is, in this case, the board, the real danger of the chance is that the correspondence, as LaChance calls it, between the penalty

[00:10:48] Speaker 04:
And the specific reasons, therefore, is loss.

[00:10:51] Speaker 04:
Here the board is citing to evidence on specifications that the board itself did not sustain.

[00:10:58] Speaker 04:
I would submit to you that part of the reason they're doing that is because they're looking over the shoulder of the deciding official.

[00:11:03] Speaker 04:
The deciding official was right to do it because he was sustaining those particular incidents.

[00:11:08] Speaker 04:
Now, the board has rejected that, and then it goes back, and it looks over the shoulder of the deciding official, and it doesn't catch that.

[00:11:15] Speaker 04:
That's one of the reasons it has to do its own analysis, because it has to make sure that the penalty that it's saying is reasonable is actually tied to the conduct that it itself has sustained.

[00:11:24] Speaker 04:
That's incredible.

[00:11:25] Speaker 01:
Where in the board's decision are they discussing aspects of the charges that weren't sustained in connection with the dollar sign?

[00:11:35] Speaker 04:
Sure.

[00:11:35] Speaker 04:
That's footnote six.

[00:11:37] Speaker 04:
And that's at page 19 of the board's decision, and that's appendix 19.

[00:11:46] Speaker 04:
The board is referring there to how certain supervisors had testified that they

[00:11:53] Speaker 04:
changed the scheduling for Agent Simmons based on the fact that he made certain females uncomfortable.

[00:12:00] Speaker 04:
One of the allegations it looks at is an allegation made by Jennifer Parra.

[00:12:04] Speaker 04:
Her allegations were alleged and made in specification eight.

[00:12:09] Speaker 04:
They were not sustained by the board.

[00:12:11] Speaker 04:
The board also refers to allegations made by Sharon Rogers.

[00:12:14] Speaker 04:
The agency did not even charge that conduct.

[00:12:18] Speaker 04:
She recanted, or at least backtracked on those allegations.

[00:12:22] Speaker 03:
What is more?

[00:12:32] Speaker 03:
making other people's employees uncomfortable?

[00:12:36] Speaker 04:
There are specifications that obviously challenge those.

[00:12:38] Speaker 04:
There are a lot that were not substantiated and a lot that there's evidence in the record that he made people uncomfortable.

[00:12:45] Speaker 04:
Well, did he make them uncomfortable?

[00:12:47] Speaker 04:
Was that ever specified?

[00:12:48] Speaker 04:
Was it based on all the rumors and gossip about his adult online business?

[00:12:52] Speaker 04:
I would submit to you, this is why the board has to independently do this.

[00:12:56] Speaker 04:
It's got to go back and tie the conduct to the penalty.

[00:13:00] Speaker 02:
That was not done.

[00:13:01] Speaker 02:
DHS argues at page 41 in their brief that the chance requires an abuse of discretion standard to be applied.

[00:13:08] Speaker 04:
Do you agree with that?

[00:13:10] Speaker 04:
This board ultimately reviews for the use of discretion, yes.

[00:13:13] Speaker 04:
But the chance is clear on the legal issue that the board has to independently balance the Douglas-Badgers.

[00:13:19] Speaker 04:
And that's what we're saying it didn't do.

[00:13:21] Speaker 04:
This is a legal error.

[00:13:22] Speaker 04:
I can see I'm into my revival time.

[00:13:25] Speaker 03:
Can I just ask you about that point again?

[00:13:28] Speaker 03:
You said about JP, but there was a specific patient system in regard to SR.

[00:13:35] Speaker 04:
Yes, Sharon Rogers.

[00:13:37] Speaker 04:
But what's cited is an allegation, I believe, regarding an incident in which she said that she was being stalked by 18 tenants.

[00:13:45] Speaker 04:
And then she told the supervisor about that.

[00:13:49] Speaker 04:
The supervisor did not corroborate that.

[00:13:51] Speaker 04:
The answer to the question is yes, there is one.

[00:13:54] Speaker 04:
But that particular reference is to an incident that was not sustained.

[00:13:59] Speaker 01:
OK, thank you.

[00:13:59] Speaker 01:
We'll give you two minutes.

[00:14:00] Speaker 04:
OK, thank you very much.

[00:14:17] Speaker 00:
the court on behalf of the Department of Homeland Security, I'm asking that this court affirm the board's decision as to security.

[00:14:24] Speaker 01:
Could you please tell me why in heaven's name would the Department of Homeland Security give permission to a Border Patrol agent to conduct an adult entertainment business on the side?

[00:14:35] Speaker 00:
That decision is not fully developed in the record, but it is.

[00:14:41] Speaker 00:
He was given permission to do that, provided, I think, the memorandum approving it was more concerned with.

[00:14:52] Speaker 00:
Just asking for the problem.

[00:14:53] Speaker 00:
Potentially, yes.

[00:14:54] Speaker 00:
I'd like to start, if I can, just with the factual discussion that the panel just had

[00:15:00] Speaker 00:
Council across the aisle.

[00:15:03] Speaker 00:
Petitioner is asserting that the board relied on evidence that was part of charges that were not sustained.

[00:15:12] Speaker 00:
That's not accurate.

[00:15:13] Speaker 00:
I'm going to run through some evidence in the record for the court's consideration.

[00:15:21] Speaker 00:
First of all, yes, SR is Sharon Rogers.

[00:15:24] Speaker 00:
She did not recant that testimony.

[00:15:27] Speaker 00:
Appendix 398 talks about how she does not recall reporting it to a supervisor, but she is not discounting that the conduct occurred.

[00:15:35] Speaker 00:
The implication is that somebody else reported it to the supervisor, but she's not recounting the concerns about stalking.

[00:15:44] Speaker 00:
But the complaining witnesses, the complaining employees who were involved in the conduct sustained,

[00:15:52] Speaker 00:
were uncomfortable, and that's reflected in the record.

[00:15:54] Speaker 00:
Portwood is uncomfortable.

[00:15:55] Speaker 00:
That's at 262, 349 to 353, 1077 to 92.

[00:16:00] Speaker 00:
Rogers is uncomfortable, concerned about possible stalking, 368 to 372, 398.

[00:16:05] Speaker 00:
Fierro goes to great lengths to avoid being in the same place as Mr. Timmons.

[00:16:10] Speaker 00:
That's 506 to 510, 1116 to 1118.

[00:16:14] Speaker 00:
Ramirez describes the hearing in a sexually aggressive manner, 268, 359 to 61.

[00:16:20] Speaker 00:
Supervisor Harold corroborates Portwood's discomfort.

[00:16:24] Speaker 00:
That's 427 to 430.

[00:16:26] Speaker 02:
What about the point, though, that I think he was citing from note 6-4?

[00:16:29] Speaker 02:
JP, for example, there's no charge sustained at any level out of effect about JP.

[00:16:36] Speaker 02:
How is it appropriate for the board to factor that into its analysis?

[00:16:40] Speaker 00:
Well, the board is the supervisor's testimony that the supervisor needed to schedule

[00:16:48] Speaker 00:
The supervisor testified, Harold testified, that he needed to schedule Mr. Timmons to avoid contact with SLR, Sharon Rogers, and Ms.

[00:16:57] Speaker 00:
Para, whose allegations were not sustained, but also endeavored not to schedule him with any employees, any female employees.

[00:17:06] Speaker 00:
That remains a concern, and it remains a factual concern that the board was within its discretion to factor in its analysis under Lashance and Douglas.

[00:17:17] Speaker 02:
that's a concern about the assignment of Mr. Timmons with the female employees, even if there's no particular charge sustained associated with those specific employees?

[00:17:28] Speaker 00:
Correct.

[00:17:29] Speaker 00:
And even with regards to Ms.

[00:17:30] Speaker 00:
Parra, yes, there was a specification that concerned Ms.

[00:17:33] Speaker 00:
Parra that was not ultimately sustained.

[00:17:35] Speaker 00:
That was one of the specifications that was reversed.

[00:17:38] Speaker 00:
But her discomfort with working with Mr. Timmons still stands, right?

[00:17:42] Speaker 00:
It's still something that the supervisor was willing

[00:17:46] Speaker 00:
and interested in protecting it.

[00:17:54] Speaker 02:
I think the best you have, maybe all you have, is the considering sentence at page 20.

[00:18:01] Speaker 02:
And even that seems to stress keeping in mind the employee agency's primary discretion

[00:18:09] Speaker 02:
in assessing penalties, how can I fairly read this one sentence, which has embedded in it the discretion, the primary discretion?

[00:18:18] Speaker 02:
How can I read that as a truly independent evaluation by board?

[00:18:23] Speaker 00:
Because overarching this independent evaluation is the abuse of discretion standard, right?

[00:18:28] Speaker 00:
The chance is clear that it is not for the board to independently step into the shoes of the agency and decide what penalty is appropriate, to take over that role,

[00:18:39] Speaker 00:
The board sits there just to determine whether or not the penalty that the agency imposed is still reasonable in light of the lesser sustained charges.

[00:18:51] Speaker 00:
And when the agency does not indicate an intention to consider something a lesser penalty, then the board is also considering what is the maximum reasonable penalty.

[00:19:03] Speaker 00:
I think on this record, we have an employee who has a persistent pattern of unprofessional conduct with female employees, was verbally aggressive with a supervisor, admits to being too aggressive with his female coworkers, and as the deciding official noted, did not admit his misconduct at any point up and through the oral reply before he was removed from his service.

[00:19:34] Speaker 00:
I think it belies reason to suggest that

[00:19:39] Speaker 00:
removal of this employee is patently unreasonable.

[00:19:43] Speaker 03:
Is Lachance the case where the board initially had, at the board stage, had said we do have the authority to do a dinner review when not all the charges are sustained?

[00:19:57] Speaker 03:
Do you recall?

[00:19:58] Speaker 03:
I recall that situation happening.

[00:20:00] Speaker 03:
I don't know if it was in Lachance or some other case.

[00:20:05] Speaker 03:
the court agreed that the board doesn't get to do an independent de novo evaluation of the Douglas Actors.

[00:20:15] Speaker 03:
They have to do it under the guise of this maximum regional penalty, which is based upon the fact that the agency officials are in the best position to determine what the appropriate penalty is.

[00:20:27] Speaker 00:
Yes.

[00:20:28] Speaker 00:
As I said, I'm not sure if it's the sheriff either.

[00:20:31] Speaker 00:
Yeah.

[00:20:33] Speaker 00:
But in terms of the party's briefings, in this case, the sheriff seems to also be on Hays.

[00:20:38] Speaker 03:
Let me ask you, if we didn't have this considering settings, it would be a little bit more problematic, wouldn't it?

[00:20:45] Speaker 00:
Absolutely.

[00:20:46] Speaker 00:
But we do, right?

[00:20:48] Speaker 03:
I guess my view is,

[00:20:49] Speaker 03:
And why should we require a little bit more from the board so that we are more comfortable that they've done the right review under the chance?

[00:20:59] Speaker 03:
They're just a pretty, I'm not going to call it cursory, because it actually hits on a number of points.

[00:21:06] Speaker 03:
But it doesn't specifically reference Douglas.

[00:21:09] Speaker 03:
It doesn't really indicate.

[00:21:12] Speaker 03:
I mean, as your cuisine council said, they do have some obligation.

[00:21:16] Speaker 03:
And it's a little apart from this.

[00:21:19] Speaker 03:
And it's certainly in the inferences to think that, you know, these two board members are set there and thought, yeah, the Douglas Factor would be agreed at that, under our argument, would be a factual result in a week.

[00:21:32] Speaker 03:
I think, Your Honor, I think it's the discretion standard.

[00:21:35] Speaker 00:
I think it's the discretion standard, but I think it's also the factual record in this case, right?

[00:21:40] Speaker 00:
This is not the kind of case where the specifications that were not sustained

[00:21:47] Speaker 00:
you know, materially altered the brunt of the considerations, right?

[00:21:52] Speaker 00:
The mitigating circumstances, the aggravating circumstances.

[00:21:55] Speaker 03:
Well, it's not the specifications that weren't sustained.

[00:21:57] Speaker 03:
It's the other charges that weren't sustained.

[00:22:00] Speaker 03:
It doesn't matter that some of the specifications under this charge weren't sustained.

[00:22:05] Speaker 03:
It's whether the non, the other charges that weren't sustained would alter the penalty.

[00:22:11] Speaker 00:
And you're already at a good point in that the deciding official, in considering the penalty of removal, also considered the conduct underlying the lack of candor charge, right?

[00:22:20] Speaker 00:
Concerns over Giglio and concerns about credibility, if Mr. Timmons should ever have to testify in court in connection with his work, right?

[00:22:28] Speaker 00:
There was a sustained lack of candor charge.

[00:22:30] Speaker 00:
That lack of candor charge did not survive through to the board's decision.

[00:22:34] Speaker 00:
And the board, rightly so, did not consider that lack of candor conduct

[00:22:41] Speaker 00:
in assessing the penalty of removal.

[00:22:44] Speaker 00:
Petitioner puts a lot of attention on whether or not the board's decision diverged from the deciding official's decision and says, well, it can't be independent if there's no diversion.

[00:23:00] Speaker 00:
There was diversion.

[00:23:02] Speaker 00:
As I mentioned, the board did not consider the lack of candor of conduct in reassessing

[00:23:09] Speaker 00:
The removal, they also didn't consider, or they did consider the difficulty in scheduling Mr. Timmons.

[00:23:15] Speaker 00:
I mean, if you have a male employee, you can't schedule your endeavor not to schedule any female co-workers.

[00:23:21] Speaker 00:
Right?

[00:23:21] Speaker 00:
If that, if the agency is not within its discretion to determine that that's not efficient for service, I'm not sure what is.

[00:23:30] Speaker 02:
In Williams, I think you recognized we said that if the board's analysis in this type of chance situation amounted to nothing more than deferential review of this binding officials analysis, then we have to re-hand, isn't that right?

[00:23:46] Speaker 02:
That's correct.

[00:23:47] Speaker 02:
So if that's how I read that one sentence, I have to re-hand.

[00:23:52] Speaker 00:
If your honor sees that there's deference there, but we would submit there's no language of deference, right?

[00:23:57] Speaker 00:
The board was.

[00:24:00] Speaker 00:
as Judge Houston noted earlier, responsible for looking at whether or not the deciding official in the first instance considered the Douglas analysis.

[00:24:08] Speaker 02:
Let me ask you this, because one of the interesting parts of the facts here, I think, are because the board, I think, didn't have a quorum for a certain amount of time.

[00:24:17] Speaker 02:
And Mr. Timmons went back to work, I think, for a significant amount of time.

[00:24:22] Speaker 02:
And it's not clear to me that the board considered potentially, I don't know, the mitigating factor the five, six, seven subsequent years where there was maybe no complaints about his work.

[00:24:37] Speaker 02:
Should that factor into the analysis of whether we should remand for a clearly independent evaluation?

[00:24:44] Speaker 00:
Well, to the extent there was, I don't know if there was, but to the extent there was an opportunity to offer additional evidence about his conduct once he returned to work, petitioner did not do so.

[00:24:55] Speaker 00:
So that evidence is not in the record.

[00:24:57] Speaker 00:
And I think the court's role at this point is to decide whether or not the board acting on the record in front of it, which was developed by the parties below,

[00:25:13] Speaker 00:
supports the charges sustained and the penalty of remittal.

[00:25:18] Speaker 00:
Conduct thereafter is outside the record.

[00:25:26] Speaker 00:
If the panel has no further questions.

[00:25:38] Speaker 04:
Thank you.

[00:25:39] Speaker 04:
First of all, I just want to say that, obviously, he was not removed again from his position until early last year.

[00:25:45] Speaker 04:
At that point, we were before this court.

[00:25:47] Speaker 04:
We looked into that issue.

[00:25:48] Speaker 04:
This court's authority on supplementing the record at this level is not necessarily favorable.

[00:25:55] Speaker 04:
If this is remanded, we would definitely seek to reopen the record and have court consider essentially almost doubles his tenure with the agency having been reinstated for those years.

[00:26:08] Speaker 04:
The first thing I want to respond to is, with regard to that footnote and who is being rescheduled to avoid... The footnote doesn't relate to the court's determination of a reasonable list.

[00:26:20] Speaker 04:
Well, no, that's the one spot where perhaps the board did consider something independent.

[00:26:30] Speaker 04:
And what I'm saying is that the board relied on evidence that it hadn't sustained.

[00:26:34] Speaker 04:
I just wanted to respond to say, you know, it's unclear exactly who the supervisor is referring to.

[00:26:39] Speaker 04:
That's at Appendix 428 and 429, Supervisor Harrell's discussion of people he's referring to.

[00:26:47] Speaker 01:
It all relates to the deciding officials' reason on the list, rather than the board's independent determination.

[00:26:55] Speaker 04:
I disagree.

[00:26:55] Speaker 04:
That is our position.

[00:26:57] Speaker 01:
That's our understanding.

[00:26:59] Speaker 01:
The placing of the footnote isn't in relation to the words of the appendix determination.

[00:27:02] Speaker 04:
I disagree with that.

[00:27:05] Speaker 04:
The second thing I would say is, Judge Hughes, you referred to the statement that the board considered that the deciding official would have made the same decision on the basis of the one charge.

[00:27:17] Speaker 04:
I just think it's important to wonder how much credit to give that statement, given the fact that when he made the statement, it was based on 15 specifications.

[00:27:25] Speaker 04:
Now there are six.

[00:27:26] Speaker 04:
I just wanted to make that point clear.

[00:27:28] Speaker 04:
And the last thing I would say is- So that's not for the board.

[00:27:32] Speaker 03:
I mean, that's really factual.

[00:27:34] Speaker 03:
The presiding official says on the record that I would still have, and I know they all put this in now, pro-form and enter the decisions, but that's the way it works.

[00:27:45] Speaker 03:
If the board agreed with that, there's a factual basis for us to disagree with that.

[00:27:50] Speaker 04:
Well, I mean, it's not clear if there's testimony to that effect because it's not in the decision letter.

[00:27:56] Speaker 04:
He only refers to a charge there.

[00:27:59] Speaker 04:
There's some testimony.

[00:28:00] Speaker 04:
I believe this is Appendix 1528.

[00:28:02] Speaker 04:
It's like the last question the agency counsel asks.

[00:28:05] Speaker 04:
She says, well, what would you have done with the same specifications?

[00:28:08] Speaker 04:
He, or excuse me, on fewer specifications, he interprets that essentially as the charge question again.

[00:28:14] Speaker 04:
He doesn't really answer the question.

[00:28:16] Speaker 01:
So.

[00:28:16] Speaker 01:
Did you make this argument in the brief?

[00:28:19] Speaker 01:
I don't recall.

[00:28:20] Speaker 01:
Maybe you did.

[00:28:21] Speaker 01:
In the brief.

[00:28:22] Speaker 04:
Did you make this argument about the.

[00:28:25] Speaker 04:
That there were fewer specifications?

[00:28:26] Speaker 04:
Yes.

[00:28:27] Speaker 04:
That's highlighted in the number of questions.

[00:28:29] Speaker 04:
Not about the society official, but the testimony you're talking about.

[00:28:32] Speaker 04:
Oh, no, because I'm not sure.

[00:28:37] Speaker 04:
Well, I think it's just the point about the board's interpretation.

[00:28:40] Speaker 04:
It's not independent grounds.

[00:28:42] Speaker 04:
It's just a question of how much to credit that statement.

[00:28:44] Speaker 04:
That's all.

[00:28:45] Speaker 04:
I can see you have a little bit of time.

[00:28:47] Speaker 01:
Thank you.

[00:28:47] Speaker 01:
Thank both counsel and cases.

[00:28:48] Speaker 01:
And then that concludes our session for today.