[00:00:00] Speaker 04:
Our next case is on the 10th door, 1695.

[00:00:03] Speaker 04:
He always works this defense.

[00:00:05] Speaker 04:
Okay, Mr. Branch?

[00:00:07] Speaker 02:
Good afternoon, Your Honor.

[00:00:08] Speaker 02:
May it please the court, I'm David Branch.

[00:00:10] Speaker 02:
I represent the petitioner, Kai Yung Heo.

[00:00:15] Speaker 02:
There are two issues in this appeal.

[00:00:16] Speaker 02:
The first issue is the due process violation or the due process violations.

[00:00:23] Speaker 02:
The second issue is that the decision by the administrative judge lacks substantial evidence to support the decision.

[00:00:32] Speaker 01:
Frank, let me ask you a question.

[00:00:34] Speaker 01:
In your brief, you seem to devote most of your attention to the due process issue, as far as I could tell.

[00:00:42] Speaker 01:
Yes.

[00:00:43] Speaker 01:
And then you do talk at the end about the substantial evidence issue.

[00:00:48] Speaker 01:
If we were to not agree with you,

[00:00:51] Speaker 01:
on the due process issues, can you still prevail?

[00:00:55] Speaker 01:
In other words, are the due process issues and your substantial evidence claim intertwined or they stand separately so that one can stand if the other falls?

[00:01:11] Speaker 02:
Your Honor, I believe that they are intertwined.

[00:01:17] Speaker 02:
And the reason why I say that is it primarily deals with the 2015, the prior decision by the arbitrator on the 2015 issue.

[00:01:28] Speaker 02:
And that's the issue.

[00:01:29] Speaker 01:
Which relates to the sleeping in the car issue.

[00:01:32] Speaker 02:
Yes, sleeping in the car.

[00:01:34] Speaker 02:
Ali Am, which was reversed by the arbitrator, but the agency did not fulfill all the requirements required by the arbitrator.

[00:01:43] Speaker 01:
Please cut me if I'm wrong, but as I read the briefs, you're not arguing the, well, I'll call it that way, a shorthand for sleeping in the car issue.

[00:01:52] Speaker 01:
As I understand it, your two arguments on appeal relate to the improper conduct, the allegedly false document, and then the conduct inappropriate for an officer, the comments made in the locker room.

[00:02:08] Speaker 01:
Is that correct?

[00:02:09] Speaker 01:
Yes.

[00:02:10] Speaker 01:
So the sleeping in the car issue isn't really relevant to us, is it?

[00:02:17] Speaker 02:
Your Honor, I think that the sleeping in the car incident obviously was part three and four of the charges.

[00:02:25] Speaker 02:
And so there's a question of whether we would be here, whether the action would have been taken against him, but for these earlier charges of sleeping in the car.

[00:02:34] Speaker 00:
Do you think there's any doubt in the record that this case would have been different if they had

[00:02:42] Speaker 00:
just thought that they did.

[00:02:44] Speaker 00:
And we've got two sleeping incidents.

[00:02:46] Speaker 00:
And there's no challenge that one of them was not previously decided by an arbitrator.

[00:02:51] Speaker 00:
So even if you take the sleeping incident that you're talking about out of this case, you really think there would have been any difference in the result here?

[00:03:01] Speaker 02:
Yes, Your Honor.

[00:03:02] Speaker 02:
I do believe that there would have been a difference in the results.

[00:03:08] Speaker 04:
How can that be since it was the charger supported by two separate specifications either one of which would be sufficient well, I think the I think the

[00:03:23] Speaker 02:
deciding official or my understanding from the record I picked up the case from different counsel but I believe the deciding official both relied on the sleeping in the car incident as well as the claims of the false statement and the conduct of becoming an officer.

[00:03:49] Speaker 02:
So first on the due process issue, the evidence, at least what was presented to the MSP administrative judge was that Major Musumo sent management communications pressing for a decision for the removal of the petitioner.

[00:04:10] Speaker 02:
And this was tied in part to the new complaints concerning the petitioner.

[00:04:17] Speaker 02:
While the proposal was pending, none of this was provided to the petitioner's counsel.

[00:04:24] Speaker 02:
And the petitioner was deprived of an opportunity to respond to these issues or consider these issues.

[00:04:30] Speaker 00:
Would you agree that under our case law, it's relevant only, relevant to whether or not there was a due process violation, if the deciding official considered the matters that were

[00:04:42] Speaker 00:
somewhere on his desk or going through emails that he was receiving?

[00:04:46] Speaker 00:
I mean, isn't there some requirement that he consider that as part of his analysis?

[00:04:52] Speaker 02:
Your Honor, I think the test is an objective test.

[00:04:55] Speaker 02:
It's whether it just can't be his subjective statement that, hey, I didn't rely upon it.

[00:05:00] Speaker 02:
There needs to be some consideration objectively to whether getting pressure from your supervisor to give me a position, a statement.

[00:05:08] Speaker 02:
on removal as well as the other evidence, the fact that you're the deciding official and now you're investigating the petitioner and considering placing him on leave because you've received some subsequent complaint.

[00:05:21] Speaker 02:
And then speaking directly with here was Officer Smith, the person who was making the complaint, and not disclosing any of that.

[00:05:28] Speaker 00:
Well, if the factual analysis done by the AJ, which gets deference by us,

[00:05:34] Speaker 00:
is that she believed, or he believed, the deciding official didn't take anything away from this conversation.

[00:05:42] Speaker 00:
You've thrown a lot of this in, because there are a number of due process allegations.

[00:05:46] Speaker 00:
But if AJ concluded, one, that the deciding official was credible, where he said he didn't consider this, or go into this, or consider this in connection with this case, and two, that

[00:06:02] Speaker 00:
I mean, isn't that relevant if there are findings by the AJ that credits what the other side says?

[00:06:08] Speaker 02:
Yes.

[00:06:08] Speaker 02:
I mean, obviously, yes, Your Honor, it's relevant.

[00:06:10] Speaker 02:
But if there is a gap between the evidence that's in the record that was before the AJ and the AJ's decision, and that's what we have here.

[00:06:20] Speaker 02:
We have not only the AJ reaching this decision, but there was so much contradictory evidence in the record.

[00:06:27] Speaker 02:
We have the recording where Smith is saying,

[00:06:31] Speaker 00:
two letters but isn't that what the AJ does and what we review for substantial evidence I mean they make those are what the hearings are about there's often conflicting evidence and the AJ considers all the conflicting evidence and comes to a conclusion with respect to what's most believable or what

[00:06:51] Speaker 00:
is really germane to the ultimate analysis.

[00:06:54] Speaker 00:
That's what we do here, right?

[00:06:55] Speaker 00:
Yes.

[00:06:55] Speaker 00:
We don't review that deferentially here on appeal, right?

[00:06:59] Speaker 04:
Yes.

[00:07:00] Speaker 00:
Yes.

[00:07:00] Speaker 04:
Your argument, as I understand it, is it doesn't make any difference whether the deciding official relied on it or not, because Stone says that's not the test.

[00:07:11] Speaker 04:
It's not a harmless error test.

[00:07:14] Speaker 04:
There's not a subjective independence test.

[00:07:17] Speaker 04:
And I think you're right that Stone does say that.

[00:07:20] Speaker 04:
But the problem is here that Stone and other cases say that knowledge of other events concerning the employment isn't a due process violation.

[00:07:33] Speaker 04:
Now, maybe under this FEA case it would come out differently, but that was vacated, something which you don't seem to acknowledge in your brief.

[00:07:44] Speaker 04:
And here, in any event, there's no indication here that the superior supervisor to the deciding official told him to terminate this person.

[00:07:56] Speaker 04:
There's just not evidence of that.

[00:07:58] Speaker 02:
Your Honor, if we literally read the correspondence from the supervisor where he says,

[00:08:09] Speaker 02:
the decision for a removal.

[00:08:13] Speaker 02:
He didn't say a decision on the proposed removal, but he says, when are we going to get this decision for a removal?

[00:08:20] Speaker 02:
And wouldn't you consider that with the additional facts of, hey, this, we need to investigate the petition?

[00:08:28] Speaker 04:
Well, he's not just saying we need to get a decision in one way or the other, huh?

[00:08:33] Speaker 04:
He doesn't say,

[00:08:34] Speaker 02:
I think the exact language that we quoted was decision for the removal.

[00:08:40] Speaker 02:
He doesn't say a decision on the proposal removal or a decision on the proposal.

[00:08:46] Speaker 02:
It's a decision for removal when that's compiled with... Where is... What's the appendix site for that, your email?

[00:09:03] Speaker 04:
I think it's 216 isn't it?

[00:09:25] Speaker 01:
Do you disagree, Mr. Marshall, with the way the A.J.

[00:09:30] Speaker 01:
characterized this colloquy about the decision that she has at the bottom of page 39?

[00:09:36] Speaker 01:
If I'm thinking of the issue that you're discussing here.

[00:09:48] Speaker 01:
Bruce Sennow suggested that perhaps the opponent should be placed on administrative leave pending the decision.

[00:09:54] Speaker 01:
In response, Deputy Chief Joe Plummer responded on email and asked why the decision was taking so long to issue.

[00:10:00] Speaker 01:
Major Bruce Sennow responded that Major Wilkins will make it a priority case and provide daily updates.

[00:10:06] Speaker 01:
Is that what you're referring to?

[00:10:10] Speaker 01:
That was especially AJ's characterization of it.

[00:10:19] Speaker 01:
Now, do you dispute what she says there?

[00:10:22] Speaker 01:
I'm just reviewing it.

[00:10:35] Speaker 01:
No, we're not disputing what she says.

[00:10:37] Speaker 01:
Well, so that sort of supports, I guess, the proposition that you were just saying, decide this case, as Judge Dyke was suggesting.

[00:10:47] Speaker 02:
I need to check to see if that's the exact site, Your Honor.

[00:10:53] Speaker 00:
Well, it is 215.

[00:10:54] Speaker 00:
I think Doug was right.

[00:10:56] Speaker 00:
I'm going to get it here.

[00:11:00] Speaker 00:
I didn't hear the court.

[00:11:01] Speaker 00:
It's Appendix 215.

[00:11:04] Speaker 00:
And it says, the last sentence is, I think it's time for us to consider him for administrative leave before his behavior and final decision is made for his removal.

[00:11:13] Speaker 00:
Is that what you're referring to?

[00:11:14] Speaker 02:
Yes, Your Honor.

[00:11:15] Speaker 02:
And so I think that.

[00:11:17] Speaker 02:
That's essentially our position.

[00:11:19] Speaker 02:
All of these conversations were taking place, which suggests that they were considering something more than what was in the proposal to remove.

[00:11:32] Speaker 01:
The statement that Judge Prost just pointed to, page 215 of the appendix, isn't that statement being made in the context of the fact that there were additional allegations that had been made concerning your client's conduct during the period of the investigation?

[00:11:56] Speaker 01:
And I guess what's being said here is, well, place him on leave pending notice.

[00:12:02] Speaker 01:
I mean, that's the way I read this and my conclusion based on what I read before in the case.

[00:12:08] Speaker 01:
Is that wrong?

[00:12:09] Speaker 02:
No, Your Honor.

[00:12:09] Speaker 02:
I think that's correct.

[00:12:10] Speaker 02:
But I think that supports our position that these are factors or these are additional facts that are being considered by the people who are making the decision.

[00:12:20] Speaker 02:
And the employee or the petitioner is not given first notice of these additional claims.

[00:12:26] Speaker 02:
Hey, there are additional charges or additional claims that are being made against you.

[00:12:31] Speaker 02:
and that those decisions, those actions are being considered in the final decision.

[00:12:37] Speaker 02:
That's his, I mean, that's his basic right.

[00:12:40] Speaker 01:
You're saying what it comes down to, you're saying that just the fact that number one, there were these additional charges and number two, that as a result of that, there was a recommendation to place Mr. Hill on administrative leave, you're saying just because of that, that shows prejudice.

[00:12:59] Speaker 02:
being communicated to the deciding official.

[00:13:02] Speaker 02:
Yes, and it's not being disclosed to the petitioner as the petitioner is responding or trying to point out reasons to mitigate the penalty if the penalty is going to be removed or at least give his version of events to these additional facts.

[00:13:19] Speaker 02:
If you're saying he's taking these other actions which

[00:13:23] Speaker 02:
should support placing him on administrative leave or may be considered in the removal, at least at a minimum they have an obligation to place him on notice that since the proposed removal was issued, these additional facts have come to light and they're going to be considered.

[00:13:40] Speaker 02:
They can't just fail to disclose this and then consider these factors in making a final decision.

[00:13:46] Speaker 02:
That violates this due process.

[00:13:48] Speaker 01:
One final question, if you please.

[00:13:51] Speaker 01:
You make a number of due process arguments in your brief and on appeal before us here.

[00:13:57] Speaker 01:
If you were reduced to just one of those, what do you think is the most important, in your view, most important due process allegation that you raise, that you say is determined, if it just stood along?

[00:14:15] Speaker 02:
Your Honor, I think the most important due process violation would be the directive from Major Busuno to Mr. Rokins that essentially other issues have come to light, and when are we getting a decision on his removal?

[00:14:39] Speaker 01:
The one we were discussing a minute ago.

[00:14:41] Speaker 01:
Yeah.

[00:14:41] Speaker 01:
OK.

[00:14:44] Speaker 02:
And the second issue is the double discipline, I think you touched on it briefly, but the double discipline for the 2015 incident.

[00:14:55] Speaker 02:
That the underlying claim is that in 2015 he was already penalized for allegedly sleeping on the job, and that becomes a basis for counts three and four, for the causes of counts three and four.

[00:15:14] Speaker 02:
uh... the administrative judge to consider that in making the final decision we believe uh... well we believe that

[00:15:23] Speaker 02:
precedent prevents the administrative judge from considering the prior decision when the discipline was – the decision was reversed and the agency did not provide all of the remedies afforded by the prior discipline, the reversal of the prior discipline.

[00:15:42] Speaker 04:
Okay.

[00:15:42] Speaker 04:
I think we're out of time.

[00:15:43] Speaker 04:
Thank you.

[00:15:43] Speaker 04:
We'll give you two minutes or a while.

[00:15:46] Speaker 04:
Mr. Kelly?

[00:15:57] Speaker 03:
Good afternoon.

[00:15:57] Speaker 03:
May it please the court?

[00:15:59] Speaker 03:
I'll start with the last topic that was under discussion.

[00:16:04] Speaker 03:
What was characterized as a directive to remove Officer Hill.

[00:16:09] Speaker 03:
As Judge Schall pointed out, that's not how the administrative judge read that email.

[00:16:15] Speaker 03:
The judge read it as a description of a pending decision, not a directive to remove.

[00:16:21] Speaker 03:
And that's consistent and supported by substantial evidence.

[00:16:24] Speaker 03:
It's consistent with Major Wilkins' testimony

[00:16:26] Speaker 03:
about that exchange.

[00:16:28] Speaker 03:
And it's on Appendix 38 where the administrative judge recognized that Major Wilkins testified that no one advised him as to a specific penalty that rather the decision made regarding the appellant's removal was his alone.

[00:16:43] Speaker 03:
And we think that the administrative judges

[00:16:45] Speaker 03:
characterization, understanding that that email is supported by that testimony.

[00:16:50] Speaker 00:
So how are we supposed to analyze that email and maybe some of the other exchanges?

[00:16:54] Speaker 00:
I mean, your friend said there was testimony by the deciding official that said, no, I didn't consider any of this stuff.

[00:17:01] Speaker 00:
I relied on what the record was.

[00:17:04] Speaker 00:
Is this a credibility determination, or would a reasonable person have

[00:17:11] Speaker 00:
considered these, or would a reasonable person have been felt pressured under these circumstances?

[00:17:17] Speaker 03:
Right.

[00:17:18] Speaker 03:
I think in this case, it is a credibility determination.

[00:17:22] Speaker 03:
And I recognize that Stone does contain some language that might suggest that, in some cases, the inquiry could be objective.

[00:17:30] Speaker 03:
But I think there's also language that suggests that what the deciding official considered is important.

[00:17:35] Speaker 03:
And Stone says that due process guarantees are not met if the employee has noticed

[00:17:40] Speaker 03:
of only certain charges or portions of the evidence, and the deciding official considers new and material evidence, in that I think the importance of what the deciding official considered has been highlighted by some of our recent cases, including Ward and Norris.

[00:17:57] Speaker 03:
about whether the ex parte communications influence the deciding official's penalty determination and ignores the court expressed concern about whether the ex parte communication was a basis for the deciding official's determinations.

[00:18:12] Speaker 03:
So I think that that is the crux of

[00:18:14] Speaker 03:
the inquiry.

[00:18:15] Speaker 03:
And I think that the administrative judge in this case did a proper analysis about determining whether there was influence, whether these ex parte communications did factor into the analysis and determine that they did not.

[00:18:33] Speaker 04:
information was relied on, not whether the society official received an directive from the superior to take particular action, which is somewhat different.

[00:18:46] Speaker 03:
That might be true.

[00:18:47] Speaker 03:
I think the Federal Education Association case in which Officer Hill relies was closer, in fact,

[00:18:56] Speaker 03:
to what he views that that communication was, a directive to remove a subordinate.

[00:19:03] Speaker 03:
And in this case, in the Federal Education Association, the deciding official testified that there was no influence, that he remained independent.

[00:19:13] Speaker 03:
And the arbitrator found that fact, that this was an independent decision.

[00:19:17] Speaker 03:
At this court, there was a panel that essentially disagreed and held that it was the improper

[00:19:24] Speaker 03:
to consider the subjective testimony, and that was vacated.

[00:19:29] Speaker 03:
So it's not presidential.

[00:19:30] Speaker 04:
They did that based on Stone, which says the same thing.

[00:19:36] Speaker 03:
Well, I think Stone is perhaps a little bit more nuanced in how the analysis is to be done, and does talk about the effect on the deciding official.

[00:19:47] Speaker 03:
Those languages don't go in both ways, but ultimately, Stone said that the

[00:19:51] Speaker 03:
The ultimate input is whether the ex-private communication is so substantial and so likely to cause prejudice.

[00:19:58] Speaker 04:
We don't really need to reach that question here, do we?

[00:20:04] Speaker 04:
Given the nature of the email, which is quite unlike what happened in NEA,

[00:20:12] Speaker 03:
I think that's right.

[00:20:13] Speaker 03:
I think the email, as Judge Schott was raising earlier, was construed by the administrative judge as not a directive to remove, but simply a consideration for administrative leave pending a decision.

[00:20:31] Speaker 03:
The decision remained pending, and that's consistent with the testimony

[00:20:34] Speaker 03:
of the deciding official, how the deciding official understood it, that he wasn't influenced in his penalty determination.

[00:20:39] Speaker 00:
Well, if you're working in an office and your boss says, in the interim, you're there deciding all your screens on the issues that are before you, and you get word that the subject here has been engaged in continuing or new abusive behavior or terrible behavior, so we're going to have to put him on admin leave.

[00:21:02] Speaker 00:
Isn't that going to affect?

[00:21:04] Speaker 00:
I mean, if you're on the borderline as to whether or not you should remove him or not remove him, and now you get wind of, he's done so much wrong, we're going to put him on admin leave.

[00:21:13] Speaker 00:
Doesn't that affect the way you're going to look at whether you're going to remove him or not?

[00:21:17] Speaker 03:
I think for some deciding officials it could.

[00:21:19] Speaker 03:
But in this case, the deciding official testified that it did not influence this decision.

[00:21:24] Speaker 03:
Where's that testimony?

[00:21:27] Speaker 03:
It's on page 38.

[00:21:29] Speaker 03:
of the administrative judge's decision.

[00:21:32] Speaker 03:
The room is testified that no one advised him of the actual testimony.

[00:21:36] Speaker 04:
Let's see if I have it here.

[00:21:43] Speaker 03:
I think it's on page 403 of the appendix.

[00:21:46] Speaker 03:
403.

[00:21:47] Speaker 03:
403.

[00:21:56] Speaker 03:
Starting on line five, this is where that email was being discussed.

[00:22:02] Speaker 03:
And this is Major Wilkins testifying about Major Versvena.

[00:22:08] Speaker 03:
And Major Wilkins testified, he does not take, he does not partake in any of the exciting of it.

[00:22:13] Speaker 03:
He's not trying to influence my decision.

[00:22:24] Speaker 00:
You know, the assumption in a lot of these due process cases is you get a due over.

[00:22:29] Speaker 00:
I mean, in Stone, they sent it back, as I recall, to the A.J.

[00:22:32] Speaker 00:
to consider these factors.

[00:22:35] Speaker 00:
If it's a matter like this, hypothetically, or any of the charges is made on due process, how do you unwind that battle?

[00:22:43] Speaker 00:
Do you send it back down and say he gets to know about the issue, to know about the email beforehand, and so he could put on contrary evidence?

[00:22:53] Speaker 00:
I don't know how you ring some of these bells here.

[00:22:57] Speaker 00:
Well, I mean, we're not talking about reversing.

[00:22:59] Speaker 00:
I don't think your friend is asking for an outright reversal of this.

[00:23:02] Speaker 00:
So what do you do going back?

[00:23:05] Speaker 03:
I'm no deciding official.

[00:23:06] Speaker 03:
That could be possibly one option.

[00:23:08] Speaker 03:
We love you.

[00:23:09] Speaker 03:
There was no due process violation So I'll just talk about a potential remedy if we disagree with that with that ultimate result, but potentially a new deciding official could be one way to Ten years ago, right?

[00:23:25] Speaker 00:
This all happened like yeah, that's right.

[00:23:27] Speaker 00:
Was this delayed because of the boards not having a quorum and

[00:23:31] Speaker 03:
I think it may have been.

[00:23:32] Speaker 03:
I'm not entirely sure about that.

[00:23:34] Speaker 03:
That's what I suspected.

[00:23:35] Speaker 01:
There was some reference to a judge, a board member, recusing herself, I think.

[00:23:42] Speaker 01:
Oh, there was a reference to a decision.

[00:23:44] Speaker 01:
That's why there was never, pardon me if I'm wrong, but I think that's why there was no board decision.

[00:23:51] Speaker 01:
We had the AJ's decision, became the board decision, but I saw a reference somewhere in the papers to a board member recusing himself.

[00:24:00] Speaker 03:
Yes, that does ring a bell, and I apologize, I cannot recall exactly the details around the refusal, but I think I did see something similar.

[00:24:08] Speaker 03:
Just going back to the second due process concern, the second most important one, according to Officer Hill, the double discipline for the sleeping in the car incident.

[00:24:19] Speaker 03:
In our view, that that issue is really irrelevant on this appeal because first of all, there are two specifications.

[00:24:26] Speaker 03:
for the sleeping in the car charge.

[00:24:28] Speaker 03:
He does not challenge the September specification.

[00:24:31] Speaker 03:
The administrative judge explained that even if the January specification, the one that he does contend is a due process violation, was reversed.

[00:24:39] Speaker 03:
The charge could still be sustained based on the remaining specification.

[00:24:42] Speaker 03:
And ultimately, he was not removed for sleeping on duty.

[00:24:46] Speaker 03:
He was removed because of the falsification charge.

[00:24:49] Speaker 03:
And Major Wilkins, the deciding official, testified that Officer Howard would have been removed on falsification.

[00:24:54] Speaker 03:
And the administrative judge held that even if the agency did err in including the January 2015 sleeping and call charge,

[00:25:02] Speaker 03:
The action would still be sustained because the falsification charge was so important to Officer Hill's credibility and the lack of confidence that the deciding official had in him going forward.

[00:25:25] Speaker 03:
Colleague mentioned that there was testimony.

[00:25:28] Speaker 03:
He believed, suggested that Officer Smith was not credible.

[00:25:33] Speaker 03:
In our view, the credibility determinations were done correctly, and there's no basis for this court to overturn them.

[00:25:41] Speaker 03:
Officer Smith did reference two letters in some of his testimony, but that was determined by the administrative judge to be two copies of the same letter.

[00:25:50] Speaker 03:
And that's consistent with Officer Smith's testimony of that exchange.

[00:25:55] Speaker 03:
In our view, there was no due process violation.

[00:25:58] Speaker 03:
The charges are supported by substantial evidence, specifically the falsification charge that came down to a credibility determination.

[00:26:07] Speaker 03:
And we do not believe that there would be any basis for this court to invalidate that.

[00:26:13] Speaker 03:
I respectfully ask that the court afford.

[00:26:17] Speaker 04:
Okay.

[00:26:17] Speaker 04:
Thank you.

[00:26:19] Speaker 04:
Mr. Grant, we have two minutes.

[00:26:25] Speaker 02:
And just briefly, Judge Post's question concerning if a supervising official issues a statement or sends an e-mail to the deciding official that

[00:26:43] Speaker 02:
When are you going to make a decision on this removal?

[00:26:46] Speaker 02:
We have, you know, these additional issues or complaints being made about this employee.

[00:26:51] Speaker 02:
I think that there's only one logical conclusion that the deciding official can reach at that point and that is

[00:26:59] Speaker 02:
this is a statement that you should take some action and, you know, we have this proposal to remove this person.

[00:27:07] Speaker 02:
We can't even wait until we get a proposal to remove this person.

[00:27:11] Speaker 02:
He needs to be removed.

[00:27:12] Speaker 02:
These incidents are so serious.

[00:27:14] Speaker 02:
He needs to be removed from the workplace immediately.

[00:27:18] Speaker 02:
And so that type of communication

[00:27:20] Speaker 02:
should be disclosed to a petitioner, to the employee, to give the employee to at least address that if that issue has been planted in the mind of the deciding official.

[00:27:31] Speaker 02:
Now, in terms of remedies that could possibly be available, I think at a minimum, a new deciding official must be selected to make this decision.

[00:27:43] Speaker 02:
Yes, it's

[00:27:44] Speaker 02:
It's been 10 years since, you know, the incident, but obviously that's not because of anything that the petitioner did.

[00:27:53] Speaker 02:
The petitioner has timely filed his appeals, prosecuted the case, and for whatever reason, because of someone having to recuse themselves, or not having no claim, or for whatever reason, there's been a delay.

[00:28:08] Speaker 02:
The petitioner had 10 years of employment, and then this incident led to his separation.

[00:28:15] Speaker 02:
There's, and I'll just touch on this final point about the, we're not asking the court to make a predability determination, but there are certain gaps in Smith's testimony.

[00:28:27] Speaker 02:
We have the recording where he says there are two letters.

[00:28:29] Speaker 02:
We have the petitioner's statement that Smith actually said that

[00:28:36] Speaker 04:
executed this letter, assigned the letter, and it all worked.