[00:00:00] Speaker 03: Our next case is Thomas Crisp versus the US Postal Service, 2025-1104. [00:00:10] Speaker 03: Mr. Glazer. [00:00:12] Speaker 02: May it please the court, counsel. [00:00:16] Speaker 02: As Mr. Chris Floyer, we have a daunting task. [00:00:20] Speaker 02: We're asking you to reverse an MSPB decision. [00:00:24] Speaker 02: And we've got the burden to show that it was arbitrary or capricious or not supported by substantial evidence. [00:00:29] Speaker 02: I respectfully submit to you that this is that case where we can show that we do have a record of evidence to show that the board's decision was egregiously wrong under the 12 Douglas Factors. [00:00:46] Speaker 02: Let me point out first that Mr. Crisp had an unblemished service record before his errors occurred. [00:00:55] Speaker 02: He'd served for nine years, Your Honors. [00:00:57] Speaker 03: Counsel, your problem is partly that he was a supervisor. [00:01:02] Speaker 03: And that relates to what the board said was a loss of confidence and credibility. [00:01:10] Speaker 03: Yes, Your Honor. [00:01:11] Speaker 03: That's a problem with the workforce. [00:01:15] Speaker 02: It is a problem, Your Honor. [00:01:16] Speaker 02: I'd like to address why I believe that they are exceptional circumstances here. [00:01:20] Speaker 02: The evidence in the record showed, and it was under-budded by the agency, that my client had several people that said that they respected him, they did not lose confidence in him, and in fact... What does that have to do with the Postal Service having confidence? [00:01:37] Speaker 02: Well, the people that said they lost confidence in him, the decision-makers, I submit to you that the record does not support their determinations. [00:01:45] Speaker 02: And I'd like to... Really? [00:01:47] Speaker 04: And then that's because you'd rather use the cross-examination than Ms. [00:01:51] Speaker 04: Wilcox's letter. [00:01:53] Speaker 02: Well, when I asked Ms. [00:01:54] Speaker 02: Wilcox about why she reached the decision she did, Your Honor, she could not explain satisfactorily why a lesser penalty was not appropriate, nor could she explain why the Postal Service... You don't find it satisfactory. [00:02:07] Speaker 02: Well, I don't, but I believe under the law it's not satisfactory either, Your Honor. [00:02:12] Speaker 04: I mean, I believe, again, the rules in this case... Do you agree that the letter stated satisfactory reasons? [00:02:19] Speaker 02: I disagree with those reasons, Your Honor. [00:02:21] Speaker 02: My client disagrees with those. [00:02:23] Speaker 03: Again, I think the issue... That's the problem. [00:02:25] Speaker 03: You disagree. [00:02:27] Speaker 03: It's not for us to agree or disagree. [00:02:30] Speaker 03: We're not fact-finders. [00:02:32] Speaker 03: We're not listening to the witnesses, judging their credibility. [00:02:36] Speaker 02: Right. [00:02:36] Speaker 02: I understand that, your honor, but what I'm saying, I disagree. [00:02:39] Speaker 02: I'm tying it to the predicate, which is the evidence, the evidence that we put in showed they keep in mind the record reflected that Mr. Grayley believed that my client might go into the postal service at a drug induced haste because he was using marijuana. [00:02:53] Speaker 02: And that's not supported by his record, by his service to this country, and by everything that predated. [00:02:59] Speaker 02: In other words, they made all these assumptions that were not supported by the evidence. [00:03:02] Speaker 02: And that is egregiously wrong, Your Honor. [00:03:04] Speaker 02: That's where I'm coming from. [00:03:06] Speaker 02: I understand that I disagree with it, of course, but I also believe that the evidence truly shows that if they thought this man was a danger, if they thought this man was a threat, if they thought that he eroded the confidence of the post... The possession of marijuana, a felony under US law. [00:03:20] Speaker 02: I believe I don't do criminal law, Your Honor, but I honestly can't speak to whether it is or not. [00:03:26] Speaker 02: I know it's prohibited. [00:03:28] Speaker 02: I know it's prohibited down there. [00:03:32] Speaker 02: I do know that he did have a gun on the property. [00:03:35] Speaker 02: Yes, Your Honor, it is. [00:03:38] Speaker 02: And he explained why he had it on him. [00:03:41] Speaker 02: He did not have a card, a medical marijuana card for that, Your Honor. [00:03:44] Speaker 04: Even if he had. [00:03:46] Speaker 04: That's under state law, correct? [00:03:48] Speaker 02: That is, and I understand. [00:03:50] Speaker 02: And that's another issue that we have to deal with. [00:03:52] Speaker 02: I realize, and because you mentioned it, in West Virginia, oddly enough, there is a law that says you can have guns on the employer's premises. [00:03:59] Speaker 02: But again, that doesn't matter because this is federal law. [00:04:02] Speaker 02: But I really do believe that my client had devoted himself to his employment for nine years, and he made mistakes. [00:04:09] Speaker 02: He admitted he made mistakes. [00:04:11] Speaker 02: This isn't a case where he says, I didn't do it. [00:04:13] Speaker 02: This isn't a case where he said, what I did wasn't wrong. [00:04:16] Speaker 02: He's acknowledged that. [00:04:17] Speaker 02: That's part of the calculus for Douglas. [00:04:19] Speaker 02: Basically, it's our position that when you look at what happened here, they looked at the charges. [00:04:25] Speaker 02: The judge looked at the charges and said, look, this is very serious. [00:04:29] Speaker 02: You broke a rule. [00:04:30] Speaker 02: That's it. [00:04:31] Speaker 02: You lose. [00:04:32] Speaker 02: The judge didn't want to hear my evidence about how they didn't have any security before he went into the building. [00:04:37] Speaker 02: If you believe that my client is dangerous, your honor, if you believe that he's a threat, then you don't treat him the way the postal services treated him after this came to [00:04:45] Speaker 02: I mean, again, the world has changed in the last 30 years. [00:04:50] Speaker 02: We have security measures. [00:04:51] Speaker 02: If you think somebody's a danger, you act like it. [00:04:53] Speaker 02: Actions speak louder than words. [00:04:54] Speaker 02: In this case, the Postal Service's actions, Ms. [00:04:58] Speaker 02: Wilcox's letter, they don't reflect a real sincere belief that they thought my client was a danger, that they're telling him and this court. [00:05:07] Speaker 02: That's the problem I have with it. [00:05:09] Speaker 02: If you really believe someone's a danger, then act like it. [00:05:12] Speaker 02: I really respectfully submit they're paying lip service to the Douglas factory. [00:05:16] Speaker 01: I think it's required for the deciding official on the board to find that Mr. Crisp was a danger or a threat to his co-workers in order to conclude that [00:05:28] Speaker 01: Bringing a firearm under the premises is a serious offense. [00:05:33] Speaker 02: Your honor, I don't think that that needs to be part of the bill of particulars or included in it, but I do think it's part of the calculus when you look at it. [00:05:41] Speaker 02: It's part, it's a mitigating factor. [00:05:43] Speaker 02: And it's also, it goes to the idea of like, this was not where he flouted the rule. [00:05:48] Speaker 02: The first criteria says, look, was it mine or inadvertent or technical? [00:05:54] Speaker 02: We submitted it was. [00:05:55] Speaker 02: The gun that he had was stored in his car. [00:05:57] Speaker 02: It was locked. [00:05:58] Speaker 02: We submit that was inadvertent. [00:06:00] Speaker 02: Again, this was not a situation where my client was thumbing his nose at his agency and saying, I'm breaking the rule and I'm not even going to admit I broke the rule. [00:06:09] Speaker 02: He acknowledged it. [00:06:10] Speaker 02: And again, they had different options here. [00:06:14] Speaker 02: There are several options. [00:06:15] Speaker 02: The first option is they do nothing. [00:06:16] Speaker 02: That would be ridiculous. [00:06:17] Speaker 02: The second option is they suspend him with pay. [00:06:20] Speaker 02: That wouldn't work either. [00:06:21] Speaker 02: The third option, which we proposed, is you suspend him without pay. [00:06:26] Speaker 02: You suspend him for a time period. [00:06:27] Speaker 02: You could suspend him for a long time period. [00:06:29] Speaker 02: But the last option they chose, you're gone. [00:06:32] Speaker 02: That's it. [00:06:33] Speaker 02: No quarter. [00:06:35] Speaker 02: We submit that is clear error and egregiously wrong when you look at the Douglas Factors. [00:06:41] Speaker 02: we've maintained all along that they looked at the seriousness of this. [00:06:46] Speaker 02: And they said, no quarter, you lose. [00:06:49] Speaker 02: It's too serious. [00:06:50] Speaker 02: You're supervisor. [00:06:52] Speaker 02: Mr. Chris, you're gone. [00:06:53] Speaker 02: And really, that's where we are in this. [00:06:55] Speaker 02: I mean, I submit this is that unusual case where you do have substantial evidence. [00:07:00] Speaker 02: When you look at the scales of justice, the side of evidence on one side as opposed to the other is so overwhelming that we submit it should be reversed. [00:07:07] Speaker 02: Again, this man had a good record, a good career. [00:07:11] Speaker 02: He was a military vet. [00:07:13] Speaker 02: He suffered PTSD as a result of his service. [00:07:16] Speaker 02: And as a result of two mistakes, he's gone. [00:07:19] Speaker 02: He lost a great job. [00:07:20] Speaker 02: And I just think the penalty is completely disproportionate to what happened to this gentleman. [00:07:24] Speaker 02: I understand the court's concerns, but I think when we're looking at it practically, Mr. Chris has more than served a punishment for this. [00:07:33] Speaker 02: And I'll reserve for rebuttal unless you have questions. [00:07:36] Speaker 03: We'll save it for you. [00:07:37] Speaker 03: Thank you. [00:07:39] Speaker 03: Mr. Hoffman. [00:07:51] Speaker 00: Your Honor, Mr. Hoffman on behalf of the United States Postal Service. [00:07:54] Speaker 03: Isn't the penalty a bit harsh? [00:07:57] Speaker 00: Excuse me, Your Honor. [00:07:58] Speaker 03: Isn't the penalty a bit harsh? [00:08:00] Speaker 03: Your Honor, you're coming... He was seeking approval to use the marijuana for [00:08:07] Speaker 03: medical purposes and the gun was in a locked glove compartment? [00:08:15] Speaker 00: Your honor, you bring up a good point. [00:08:17] Speaker 00: We could all, including Mr. Glazer, including myself, including your honors, [00:08:22] Speaker 00: We could all think the punishment is too harsh, but that's not the question, Your Honor. [00:08:26] Speaker 00: The question is, what Ms. [00:08:28] Speaker 00: Wilcox did and what the board upheld, is that in compliance with the law? [00:08:32] Speaker 00: So in order for Your Honor, we can think it's too harsh. [00:08:36] Speaker 00: But the question is, is it so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion? [00:08:44] Speaker 00: And that's the question, Your Honor. [00:08:46] Speaker 00: And we would say that that question is answered in the negative. [00:08:50] Speaker 00: and abuse of Ms. [00:08:51] Speaker 00: Wilcox's discretion. [00:08:52] Speaker 00: And Your Honor touched on it earlier, as far as you are not fact-finders. [00:08:56] Speaker 00: You were not there to hear the witnesses. [00:08:58] Speaker 00: You did not take the evidence. [00:08:59] Speaker 00: And none of us were there when Ms. [00:09:00] Speaker 00: Wilcox made this adjudication, and then it was upheld by the MSPB. [00:09:04] Speaker 00: So we would submit, Your Honor, that while people may feel that it's perhaps too harsh, that we would argue that it is squarely within the discretion that Ms. [00:09:15] Speaker 00: Wilcox had and that the board had in upholding it. [00:09:18] Speaker 00: I would only make two points in response to what's... I would add... Yes, Your Honor. [00:09:24] Speaker 04: I think it's too harsh too, but I agree with you on the standard over here. [00:09:29] Speaker 00: Two, I would like to address Mr. Chen's question about security. [00:09:33] Speaker 00: The question is not, regarding credibility, is not, is Mr. Crisp a threat? [00:09:39] Speaker 00: I don't think, if you read the testimony from Ms. [00:09:42] Speaker 00: Wilcox, she basically says she did not believe him to be a threat. [00:09:45] Speaker 00: The question is, did he have the credibility to enforce these rules going forward? [00:09:50] Speaker 00: And that's not just one rule. [00:09:51] Speaker 00: It's not the gun rule. [00:09:52] Speaker 00: It's two rules. [00:09:53] Speaker 00: It's the drugs and the gun. [00:09:56] Speaker 00: So it's not whether he's a security threat. [00:09:58] Speaker 00: It's his credibility. [00:10:00] Speaker 00: I already addressed my second point. [00:10:03] Speaker 00: If your honors do not have any questions, I will go the rest of my time. [00:10:11] Speaker 00: We just respectfully request that the court affirm the decision of the board. [00:10:14] Speaker 00: Thank you, your honors. [00:10:15] Speaker 03: Thank you, Mr. Hoffman, Mr. Glazer. [00:10:20] Speaker 02: Yes, Your Honor. [00:10:22] Speaker 02: And I'll be brief, too. [00:10:23] Speaker 02: I think I would hope that most of us could agree that it is too harsh. [00:10:28] Speaker 02: And I certainly respect Mr. Hoffman's position, the agency's position. [00:10:32] Speaker 02: But I've maintained throughout that it is an abuse of discretion to apply the penalty here the way it did. [00:10:40] Speaker 02: As an old aphorism goes, you don't use a hatchet to remove a fly from somebody's forehead. [00:10:44] Speaker 02: And this was a hatchet. [00:10:46] Speaker 02: And the bottom line is when you look at the evidence, [00:10:50] Speaker 02: I mean, it's pretty clear that Mr. Chris hadn't done anything wrong. [00:10:54] Speaker 02: I mean, when you consider someone who's worked for nine years, that's a pretty long time, and he supervised these persons. [00:10:59] Speaker 02: Now, I do understand he's a supervisor. [00:11:02] Speaker 02: How can you say he didn't do anything wrong? [00:11:05] Speaker 02: Until he was disciplined. [00:11:08] Speaker 04: Oh, wow. [00:11:09] Speaker 02: Let me clarify, Your Honor. [00:11:10] Speaker 04: Let's put it this way. [00:11:12] Speaker 04: He wasn't caught. [00:11:13] Speaker 02: Well, you know, that's true. [00:11:18] Speaker 02: But as far as the evidence, there was no indication that he'd transgress. [00:11:22] Speaker 02: But as far as the credibility issue that Mr. Hoffman raised, the idea that he wouldn't... And I think this dovetails into your comment, Judge Wallach. [00:11:32] Speaker 02: The idea that he wasn't caught before, I don't think the record supports a determination that he wouldn't enforce the rules, that he would allow people to disobey rules about guns on the property or contraband on the property. [00:11:46] Speaker 02: That's the issue I have. [00:11:48] Speaker 02: It's like, you can't make speculation as the basis for this decision, especially given the inferences we have here. [00:11:55] Speaker 02: I mean, again, [00:11:56] Speaker 02: We have a lot of people, I'm in West Virginia where a lot of people have firearms in my state. [00:12:02] Speaker 02: And they testify that a lot of people that work at the postal service has firearms. [00:12:06] Speaker 02: But at the end of the day, you know, when Mr. Chris was invited back onto the premises, they didn't. [00:12:11] Speaker 02: act as if he were a threat. [00:12:13] Speaker 02: And I really think that does reflect on the fact that they are saying one thing, but they're do treating him another way. [00:12:18] Speaker 02: And that goes to how they're determining his credibility and supervisor authority. [00:12:22] Speaker 02: I mean, again, I certainly understand we have a difficult burden in overturning this case. [00:12:27] Speaker 02: But I wouldn't have traveled and appealed to this honor record unless I really believed that we had that case. [00:12:32] Speaker 02: So with that, unless you have questions, I'll respectfully submit. [00:12:36] Speaker 03: Thank you, both counsel. [00:12:37] Speaker 03: The case is submitted.