[00:00:00] Speaker 04:
The next case for argument is 24-2144, Jadu v. DHS. Are you ready whenever you are?

[00:00:11] Speaker 04:
Mr. Eisman?

[00:00:12] UNKNOWN:
Yes.

[00:00:13] Speaker 04:
How do we pronounce the name of this case? Is it Jadu?

[00:00:16] Speaker 02:
It's Jadu. Jadu. Yes. Thank you.

[00:00:20] Speaker 02:
Good afternoon. May it please the Court?

[00:00:23] Speaker 02:
to represent Mr. J. Dew in this matter, pending before the court this afternoon. I'd like to discuss two issues with the court. First is the board's sanctions authority here, which we believe the board committed reversible error by not sanctioning the agency in this case for violating statutory mixed case processing rules. And secondly, the board committed a reversible error when it deferred to the agency's penalty determination, even though the agency did not consider all the mitigating factors.

[00:00:56] Speaker 02:
That is a reversible error.

[00:00:58] Speaker 04:
Is that...

[00:00:59] Speaker 04:
I've been here for a long time, so I've seen the cases clarifying, and I thought we had clarified at least certainly where the deciding official testifies that he would have taken the same action based on only two of the 12 specifications. That is a sufficient basis for him having considered that and for affirming him. Am I wrong about what our cases say? No.

[00:01:22] Speaker 02:
Not on that point, but I'm not discussing the specifications. I'm referring to the penalty and the Douglas factors, and that the case law says that if the agency, the signing official, doesn't consider all the relevant factors, the board, here in this case the administrative judge, cannot defer to the agency's decision. And what are the relevant factors that you feel to consider?

[00:01:53] Speaker 02:
In this case, the relevant factor that was not considered was the agency's personnel security unit, who determined that based on many of the same allegations contained in the proposed removal, some of which were sustained. The personnel security unit, which evaluates whether someone gets a security clearance, decided that he should get a security clearance. And the reason that's important, number one, it happened, they decided he should get a security clearance two months before a decision was made to fire him.

[00:02:25] Speaker 02:
Secondly, the deciding official knew about this.

[00:02:27] Speaker 04:
Third, the importance of the security... Did you ask him about this in cross-examination? Did you ask the...

[00:02:35] Speaker 02:
Deciding officially about that? We asked him if he knew about, number one, if he knew about the PSU. And he said he did know about it. And he did know about it. Secondly, he also didn't, if you look at the decision.

[00:02:51] Speaker 01:
He said the Giglio factors overweigh this.

[00:02:55] Speaker 02:
He didn't say overrides that, but that dealt specifically, yes, he talked about the Giglio factors. Yes, that's relevant. But what he didn't talk about was this grant of the security clearance. And what's important is that goes to the very first Douglas factor, which talks about the nature and seriousness of the offense and whether it was intentional.

[00:03:18] Speaker 04:
You asked him about the Suncross examination.

[00:03:20] Speaker 02:
We asked if he was aware of it and whether he'd consider it in his decision, and he said no. And it's also not listed.

[00:03:26] Speaker 01:
So he was aware of it.

[00:03:28] Speaker 02:
Yes.

[00:03:30] Speaker 01:
So he's aware of it. So I know that they've granted him a securities clearance. And he said he didn't consider it. That decision had nothing to do with what he had done. And they said, we've got a real problem with a law enforcement officer who's got jiggling problems. What use would he be to the agency?

[00:03:52] Speaker 01:
You could really only use him in an investigation where the person being investigated confessed.

[00:03:59] Speaker 01:
So he's essentially a useless witness.

[00:04:04] Speaker 02:
I understand what you're saying.

[00:04:06] Speaker 01:
But that's pretty dispositive.

[00:04:08] Speaker 02:
I don't think it is dispositive in this notion. The mitigating factor of being granted a security clearance when in the grant of the security clearance, the finding by the PSU unit specifically talked about I find your, and this is Appendix 1475, your explanations credible and did not find evidence that you willfully intended to deceive or conceal. That goes specifically to Douglas Factor No. 1, which, among other things, talks about whether the offense was intentional.

[00:04:40] Speaker 02:
But what was not considered... And I understand what you're suggesting, Your Honor, is that Giglio— Very much a serious problem. But he didn't discuss Giglio overrides all those things. It's not discussed at all. It's not discussed in the Douglas factors analysis.

[00:04:57] Speaker 04:
Well, you say that, but it is discussed at least by the ALJ.

[00:05:01] Speaker 02:
Only with respect to whether the specification should be sustained, not relating to the penalty.

[00:05:10] Speaker 02:
That is correct, Judge Provost, but not with respect to the penalty.

[00:05:20] Speaker 04:
You said you had two points.

[00:05:21] Speaker 02:
Yes, thank you.

[00:05:23] Speaker 02:
The other was the issue of the board's sanctions authority. The board has broad sanctions authority under its regulations, 1201.43.

[00:05:32] Speaker 02:
Here the board said, we can't do this.

[00:05:35] Speaker 01:
The first question is whether we have jurisdiction to entertain it.

[00:05:37] Speaker 02:
I think of jurisdiction because we're not asking you to review a claim of discrimination or even Mr. Jadoo has waived his discrimination claim here.

[00:05:46] Speaker 01:
You're asking to enforce an anti-discrimination law.

[00:05:50] Speaker 02:
We're not. We're asking.

[00:05:52] Speaker 01:
The purpose of sanctions is to enforce the EEO rules about timings.

[00:05:59] Speaker 02:
Well, this is a statutory requirement, 7703, excuse me, 7702, that only the board, not the EEOC. I'm talking about your problem here is that the EEO took too long. That's what happened.

[00:06:14] Speaker 01:
And there's a law that says that you have to take it within a certain period of time. Correct. And you're arguing that there should be a sanction on the basis that they failed to satisfy that time requirement.

[00:06:25] Speaker 02:
That's correct.

[00:06:25] Speaker 01:
That's correct. So it is, you're enforcing the discrimination law through the sanction.

[00:06:33] Speaker 01:
We're enforcing? The claim arises, your claim arises out of the law that says that the EL has to act within a certain period of time.

[00:06:43] Speaker 02:
Yes, but it is the mixed case authority in the statute.

[00:06:47] Speaker 01:
Your claim is arising out of that anti-discrimination statute.

[00:06:52] Speaker 04:
What does the statute say? The statute doesn't provide for any sanctions. The statute, in fact, suggests that Congress had another idea because it provides in these cases that you should be able to move on to the board if the time has expired. So it's not just silence as to whether sanctions would be available. There's an explicit relief provided for your client in the statutes.

[00:07:15] Speaker 02:
Understood. And that is an option that is provided to the appellant or the employee if 120 days goes by, there's no investigation, no decision. That is an option. But Mr. Jadu and others who exercise this option to file this discrimination complaint first, rather than going to the board, what they get from that is a decision from the agency about the entire appealable action and and an investigation, which gets statements from the relevant witnesses at a time when, hopefully, memories are still good.

[00:07:49] Speaker 02:
You know, over time, as we know, memories fade.

[00:07:53] Speaker 04:
But that whole case, going back to Judge Clevenger's first point, gets into the jurisdictional issue about whether or not we have jurisdiction over this case. Let me ask you, what happens if you prevail?

[00:08:08] Speaker 02:
What happens to this case? On the sanctions part, we prevailed by getting the court remanded this to the board, and the board considers in the first instance, because it didn't, whether there should be a sanction at all.

[00:08:22] Speaker 04:
Okay, so what if the board decides, and that's one of the things that the EOC might do, which is to say, well, we're going to create an adverse inference based on that. Right.

[00:08:35] Speaker 04:
it doesn't come back to us. Let's assume somebody wants to challenge the adverse inference. How on earth would we have jurisdiction over that question?

[00:08:43] Speaker 02:
Well, the adverse inference wouldn't have to be with respect to the discrimination. Any of the sanctions that are available to a judge or a court, you know, in this case, it could have been default judgment, but it could have been.

[00:08:54] Speaker 04:
The sanctions that you're seeking are entirely based on exceeding the time frame with respect to the EEO requirements. So how is it not based on, related to, resting on the requirements with regard to the discrimination claim?

[00:09:11] Speaker 02:
It is based on that, but the sanction wouldn't necessarily have to be the sanction wouldn't have to be related specifically to the discrimination claim. It could be like in the Harris case.

[00:09:24] Speaker 04:
Wait, so you're saying that we should say, yes, you have authority to do sanctions, but we're going to restrict the sanctions that you can give? I mean, how do we know? We can't control what they do, right? I mean, they can appeal it, you know, to us, but you're making rules for what they might not do or they might do. How do we know?

[00:09:42] Speaker 02:
I understand that. But Section 12.1.4.3 doesn't, not to be too acute, doesn't discriminate between mixed cases or non-mixed cases. It applies regardless. And even though this...

[00:09:59] Speaker 02:
rose out of 7702 in a discrimination claim. The evidence that gets developed is not only related to discrimination. For example, you have this investigation that is conducted and questions are asked of, for example, the deciding official.

[00:10:16] Speaker 04:
Just walk me through this. It goes back to the A.J., to determine what sanction is appropriate. If the A.J. decides, do you think it's within the realm of possibility that he or she would decide that I think an adverse inference should be created against the agency? That adverse inference would be applied to the discrimination claim, would it not?

[00:10:39] Speaker 02:
It could be, but actually he's waived his discrimination claim.

[00:10:45] Speaker 04:
So does that mean it doesn't apply to the – it can't be applied to the discrimination of claims, so we're going to suddenly apply it to the other claim? I know – I mean, we're accused of making stuff up as we go along, but this really strikes me as making stuff up as we go along.

[00:11:02] Speaker 02:
It is a provision in the statute that this – decision investigation has to be done. This is a board-controlled process. This isn't something that goes to the EEOC.

[00:11:16] Speaker 00:
Were the sanctions that you sought Originally directed to just the discrimination claim?

[00:11:21] Speaker 02:
No. The overall sanctions was default judgments of that, yes, would cover everything. It would cover the charges, the penalty. It would cover discrimination. The adverse inference was not. Could have covered.

[00:11:35] Speaker 04:
In connection with the discrimination, the investigation of the discrimination. Did I miss something?

[00:11:40] Speaker 02:
I'm sorry, I missed the first part.

[00:11:41] Speaker 04:
What's the delay in the time? Was it with respect to the investigation of the discrimination claim?

[00:11:47] Speaker 02:
The mixed case. The mixed case. Correct. That is correct.

[00:11:50] Speaker 00:
And so now your client has abandoned his discrimination claim. He can't go back on that, right?

[00:11:58] Speaker 02:
Correct.

[00:11:59] Speaker 00:
So what would an adverse inference look like now if you were to prevail here?

[00:12:03] Speaker 02:
An adverse inference, for example, could be that the agency couldn't present evidence that was in, for example, an affidavit that described why the deciding official, for example, didn't believe Mr. J. Dew with respect to one or more of the specifications.

[00:12:22] Speaker 04:
Connecting with this case that we've got before us that doesn't deal with the discriminator.

[00:12:26] Speaker 02:
Yes.

[00:12:27] Speaker 04:
Because the timeframes were exceeded in the investigation of the discrimination case.

[00:12:33] Speaker 02:
Of the appealable action, yes. That includes an affirmative defense of discrimination, yes.

[00:12:41] Speaker 01:
While your case was pending, before it got to the board, the time delay at the EEO had happened, correct?

[00:12:50] Speaker 02:
The time delay from the time he filed his formal complaint of indiscrimination was the agency was supposed to do the investigation in 120 days. From that point, it was almost 500 days before.

[00:13:02] Speaker 01:
Okay, so you could have gone to the, not to the Merit System Protection Board, you could have gone to EEO and said, hey, I'd like you to sanction because you regularly throw cases out for delays like this. You could have done that?

[00:13:18] Speaker 02:
I'm sorry, we could not have gone to the EEOC in that scenario. We could only go to the MSPB in a mixed case appeal.

[00:13:26] Speaker 00:
We could not go to the EEOC at that point that you're— One of the things you say you would have wanted was the investigation and the reports. Could you have gone to the board and said, could you please remand this back and order them to do it in a timely manner?

[00:13:42] Speaker 02:
What could have been done— I suppose if Mr. Jadu had gone past that 120 days, filed his MSPB appeal, he could have asked for sanctions at that moment. A sanction perhaps could have been, okay, agency, the judge could say, okay, agency, you haven't done this, you had a deadline, do an expedited investigation. But that's not a remedy.

[00:14:14] Speaker 02:
I mean, they've already missed the deadline.

[00:14:16] Speaker 02:
If the judge doesn't do that, then the employee, if they have an attorney, they're spending money on doing discovery for information that would have been an investigation that should have been conducted.

[00:14:29] Speaker 04:
Even under the EEOC cases that Chair Harris cited, all types of relief are available in these circumstances, including dealing with discovery and other things, which gets me back to the earlier point we were making that that all deals with the discrimination.

[00:14:50] Speaker 02:
And all those items you mentioned in reference from former Chair Harris, yes, they all could have been on the table, but the judge didn't consider it at all, essentially just denied it, saying your remedy is to request the MSPB appeal or file the MSPB appeal. So it didn't even really consider the merits of it.

[00:15:13] Speaker 01:
The EEO doesn't have any authority over to sanction in a mixed case?

[00:15:18] Speaker 01:
I don't believe they would because what would happen is – That was my point originally was that it seemed to me because it looks as if EEO polices its process vigorously.

[00:15:30] Speaker 02:
And in non-mixed – Right, don't they?

[00:15:33] Speaker 01:
And throwing a case out is frequent, or especially for an egregious case like this. That's true in non-mixed cases where they have... My point is, what case stands for the proposition that they have no authority to sanction in a mixed case?

[00:15:51] Speaker 02:
Because the only... The case that says that?

[00:15:55] Speaker 01:
I can't think of a – Well, I was asking you why in this particular case you couldn't have simply said, hey, I've been sitting over here at EEO. You guys are way out of time. In a non-mixed case, you would have thrown this thing out. All I have to do is ask for it. I'm asking for it now. And you don't have a case that tells me you couldn't have done that?

[00:16:15] Speaker 02:
I don't think we would have had the EEOC would have jurisdiction if we decided after 120 calendar days.

[00:16:25] Speaker 01:
They had a jurisdiction over your case when it was over there, right?

[00:16:28] Speaker 02:
No, it's not.

[00:16:31] Speaker 02:
When he files his formal complaint, it's investigated by the agency, not the EEOC. It's investigated by the employing agency here, DHS, and they have control. It's never... He files his complaint with the board. He files his appeal after he files his discrimination complaint with the agency. He files his appeal with the board, correct.

[00:16:51] Speaker 01:
But he doesn't, until there's a... To do the investigation?

[00:16:56] Speaker 02:
The agency's...

[00:17:01] Speaker 02:
EEO or civil rights office does the investigation. It's not at the EEOC. In fact, it doesn't get to the EEOC until after MSPB. Is it every mixed case? Yes.

[00:17:14] Speaker 04:
The EEOC regulations that are relied on in terms of the sanctions, were those subject to notice and comment rulemaking?

[00:17:23] Speaker 02:
I honestly don't know. I assume they would have been.

[00:17:26] Speaker 04:
All right.

[00:17:26] Speaker 02:
Let's hear from the other side. Thank you.

[00:17:44] Speaker 03:
Good afternoon, Your Honors. May it please the court. I've been saying good morning all day.

[00:17:49] Speaker 03:
I want to start with the penalty piece because I think that's shorter and simpler, and then we can turn to the jurisdictional piece.

[00:17:57] Speaker 03:
So at appendix page 3788, that's the hearing testimony from the deciding official. He is asked point blank, why did you terminate Mr. J. Dew? Sorry. Give us a chance. Absolutely. 3788.

[00:18:17] Speaker 04:
Okay, got it. Thank you.

[00:18:19] Speaker 03:
And it's that entire page. At the top of the page, line three, the deciding official is asked point blank, why did you terminate Mr. J. Dew even though the Office of Professional Responsibility said he could have his security clearance back?

[00:18:34] Speaker 03:
And the deciding official explains exactly why, that his concerns were related to Giglio, as was discussed earlier this morning, and also his broader concerns about his trust in Mr. J. Dew and being forthcoming, both with his supervisors. and with prosecutors in terms of both the positive and the negative information in a case.

[00:18:58] Speaker 03:
And so that is addressed specifically and explicitly by the deciding official in his testimony there. The board also recognizes... It's on direct, I assume.

[00:19:11] Speaker 03:
It feels nice enough that that's probably right. Do you know if there's any cross-examination on this point? I'm not sure, Your Honor, but this, I think, is certainly the most direct testimony where he addresses specifically sort of the existence of one does not undermine the penalty determination on the other. I'll note similarly the decision on the security clearance decision itself makes the inverse point that even though that deciding official, right, it's two different people applying two different standards.

[00:19:46] Speaker 03:
and making two different decisions.

[00:19:49] Speaker 03:
The person who determined to give him back his security clearance also explicitly stated that that sort of is disconnected from any disciplinary action that he might face. And I have that.

[00:20:02] Speaker 04:
But it feels a little incongruous, right?

[00:20:05] Speaker 04:
That it's the same agency.

[00:20:08] Speaker 04:
And a security clearance or the retraction of a security clearance is based on similar things. I mean, he lost his security clearance at the Department of State. So it's hard. The two are not completely separate and distinct in terms of the factors that one would be looking at in the agency as to whether security clearance is appropriate.

[00:20:32] Speaker 03:
Conceivably, but they are very different standards. And that is something that the administrative judge talked about in the decision.

[00:20:39] Speaker 04:
And that's what would seem to be that the security clearance ought to be easier to get rid of than firing someone. When you say there are two different standards, don't you think instinctively one would think it ought to be harder to fire someone than it is to take or require much more than it is to just take away the security clearance?

[00:21:00] Speaker 03:
I think they're looking just at sort of very different things. First of all, the security clearance process is supposed to be kind of a black box, right? Mr. J. Dew, the thrust of his argument is that we can infer based on the fact that they gave him the security clearance that there was sort of positive aspects that we can infer from that.

[00:21:21] Speaker 03:
And I think the Supreme Court in Egan made clear that really we can't infer anything, either from the grant or denial of the security clearance about the character of the person being considered. Whereas here, the lack of candor really goes to the heart of the agencies' trust and confidence in Mr. J. Dew's judgment and whether they could trust him to sort of be forthcoming.

[00:21:46] Speaker 01:
Right, but you ordinarily wouldn't think you'd grant a security clearance to someone you can't trust.

[00:21:52] Speaker 03:
I agree. But I think certainly they could fall together, and it would have been unsurprising if they both took away his security clearance and then also removed him. But ultimately, it is two different decision makers who were making two different decisions based on different considerations. And the question here is whether substantial evidence supports the analysis that the deciding official did on his penalty consideration. And he went through all of the Douglas factors and the board.

[00:22:23] Speaker 03:
I think it is pages 68 and 69.

[00:22:28] Speaker 03:
goes through where he went through the Douglas factors and credits that analysis and ultimately finds that the deciding official's testimony was credible and persuasive in terms of the Giglio concerns, in terms of his lack of trust in Mr. J. Dew's judgment, and that is sufficient to support the— Under these circumstances, did the AJ—

[00:22:51] Speaker 00:
have to defer and did the AJA defer in any way to the analysis of the Douglas factors that was undertaken by the deciding official?

[00:22:59] Speaker 03:
I mean, I think there is some deference, yes, that ultimately it is sort of a management decision and the board also looks at whether the deciding official sort of reasonably considered the appropriate factors.

[00:23:12] Speaker 00:
I think part of the argument today is that deference is not proper under these circumstances. What do you say to that?

[00:23:19] Speaker 03:
I disagree with that.

[00:23:22] Speaker 03:
But I think more importantly, the deciding official, excuse me, the administrative judge and the board sort of looked at the testimony that the deciding official gave and credited that testimony, right? So, for example, on Appendix Page 70, the board says, moreover, at the hearing, deciding official Stanton credibly reaffirmed his reasoning while emphasizing the most important aspects of the removal decision, including the higher standard that applies to law enforcement, the lack of alternative sanctions, the risk of Giglio impairment, and the absence of rehabilitation potential.

[00:24:02] Speaker 03:
He also credibly considered matters that weighed in appellant's favor, some of the mitigating factors.

[00:24:08] Speaker 03:
And on the next page, Appendix 71, the board itself states that he finds that the agency's penalty determination falls within the parameters of reasonableness and is entitled to deference. But then he also states that lack of candor justifies a severe penalty determination. including potentially removal. So I think we have both the administrative judge recognizing that there is a level of deference that is due to the agency in terms of their management decisions, and also sort of independently weighing the evidence and concluding that a significant penalty, including a penalty of removal, is justified here.

[00:24:46] Speaker 03:
Okay, why don't you move on? Let's talk about jurisdiction. So they try to present this argument as a question of the board's authority to sort of oversee and impose sanctions for violations of regulations or statutes. And the problem is that all of those regulations and all of those statutes are exclusively and uniquely within the confines of a discrimination case. and a mixed case appeal. The only types of cases before the board that this question of sanctions authority could possibly arise in is mixed cases.

[00:25:24] Speaker 03:
And we know from the Supreme Court that mixed cases, it's district court or bust. This court does not have jurisdiction to look at that.

[00:25:32] Speaker 04:
So we've got kind of two different issues. The higher level issue is jurisdiction. The second is whether or not the board has the authority to do sanctions. So your view is We don't even reach that issue.

[00:25:43] Speaker 03:
Correct. The question of the scope of the board's authority is if it's going to be litigated one day, it has to be litigated in district court and not in this court because it is sort of part and parcel of just mixed cases.

[00:26:01] Speaker 04:
But the issue of sanctions could come up in a non-mixed case, right?

[00:26:05] Speaker 03:
So other types of sanctions, absolutely. So, for example, Mr. J. Dew cites this string site of case of non-precedential decisions in his reply where this court has looked at procedural issues in sort of formally mixed cases.

[00:26:22] Speaker 03:
But those procedural issues and the scope of that board authority there – were things that sort of would be equally applicable to a purely adverse action appeal as it would in a mixed case. So, for example, it was things like your deadline to petition for full board review. That is a deadline that's the same, whether it was a mixed case or an adverse action appeal. And so when they abandoned the discrimination piece of it, that procedural question remained.

[00:26:53] Speaker 03:
The board has rules about disclosures that you have to make in order to call witnesses and sort of procedural rules, the deadline, timing of hearings. All of these aspects of the board's authority are just as applicable to a purely adverse action appeal that is then reviewed to this court. as it would be in a mixed case appeal.

[00:27:17] Speaker 04:
And so when we sort of- So when the board was saying, well, the board was mixed, but ultimately their conclusion, the AJ's conclusion was sustained, I guess, on a tie vote. was that just on the sanctions piece, that we don't have the authority, we the MSPB don't have the authority to issue the sanctions for the timeliness issue that appeared in his discrimination claim.

[00:27:38] Speaker 03:
So I don't know that, so the AJ's decision, and that's at Appendix 89, he declines to issue sanctions. I don't necessarily read that decision by the AJ as saying, I don't think I have authority to issue sanctions. so much as in my discretion, I'm not entering sanctions here. When Mr. J. Dew appealed that or petitioned the full board, the two members at the time sort of got into this debate that they then split on, on whether the board even had authority to issue sanctions in the first place.

[00:28:13] Speaker 03:
Obviously, if they don't have authority... But in either event...

[00:28:16] Speaker 04:
No matter what the board, what we're reviewing, if we're reviewing the question of whether or not they have the authority to issue sanctions, or whether we're reviewing what you say the AJ said, which is, I just don't think it takes work here. We don't have, your view is we don't have jurisdiction over either.

[00:28:31] Speaker 03:
Correct, correct. All of that is uniquely... always necessarily within the confines of a discrimination case, and therefore within the confines of a mixed case at the MSPB. It's a question that would never arise in a pure adverse action appeal that can then be appealed to this court.

[00:28:52] Speaker 04:
So I think both sides think Harris helps them.

[00:28:57] Speaker 04:
The Harris case, our Harris opinion. So why don't you give us the reason why you think it helps you?

[00:29:02] Speaker 03:
Sure. I mean, I think really it's sort of Harris-Redd following Kleckner and Perry, where the, you know, so I'll start with the Supreme Court. I think the Supreme Court sort of rejected the very distinction that they're relying on, which is that there's some difference between merits of the discrimination case, i.e., were you discriminated against or weren't you, as opposed to sort of associated procedural or jurisdictional issues. Kleckner and Perry said, no such distinction.

[00:29:35] Speaker 03:
If it's discrimination, we funnel that to district courts. Harris follows those two decisions and holds that Even if you sort of started out with a mixed case, if you unconditionally abandon the discrimination portion of your formally mixed case, and then what you're left with is just the adverse action appeal that you could have brought sort of on its own, then the court has jurisdiction over that remaining piece.

[00:30:05] Speaker 01:
His argument is that's what he has here.

[00:30:09] Speaker 03:
except that the procedural issues that he wants to raise with it are part of that discrimination piece. They only exist within the confines of...

[00:30:20] Speaker 03:
The discrimination half of the mixed case, right? So a mixed case is the adverse action appeal plus a discrimination claim.

[00:30:29] Speaker 01:
And everything— So you see it as though he's trying to enforce the procedural anti-discrimination law.

[00:30:35] Speaker 03:
Exactly. And we know from Kleckner and Perry that sort of whether it's procedural, whether it's substantive, whether it's jurisdictional—

[00:30:43] Speaker 01:
All Kluckman really says is the procedure counts as much as substance for purposes of whether I want it to be in the federal circuit or in the district court.

[00:30:52] Speaker 03:
Right. And so if it's sort of part and parcel of your discrimination claim, you've got to go to district court for that. You can't come here for that.

[00:31:02] Speaker 03:
Judge Clevenger, you'd asked a question.

[00:31:03] Speaker 01:
You used the word related in your brief. You said this is because it was the language used in our non-PREC opinion. And I think his argument is related is too broad.

[00:31:15] Speaker 03:
I think actually it's not broad enough. And that it's...

[00:31:20] Speaker 03:
Because in this case, it's not just that it's related to the discrimination claim. It's that it is exclusively within the confines of the discrimination.

[00:31:29] Speaker 01:
Why didn't you say that in your brief?

[00:31:31] Speaker 01:
instead of related. You know, I think we probably thought related was a good word at the time that we wrote it, but I think it's even more... Their basic argument is that even though he has attempted to waive off discrimination pursuant to our rules, he hasn't done it because he still has a discrimination claim, procedural discrimination claim.

[00:31:54] Speaker 03:
Sure, yes. I think it's sort of... One of two things is true. Either...

[00:32:00] Speaker 03:
or I guess maybe more specifically, it's that in order to unconditionally abandon his discrimination claim to be here, that also has to abandon this sanctions argument because it's part of his discrimination case. And so I take him at his word of his unconditional abandonment, and therefore this issue is no longer before the court. If the court...

[00:32:24] Speaker 03:
concludes that he didn't waive that piece, then I think it's still a mixed case and this court doesn't have jurisdiction over any part of it.

[00:32:32] Speaker 00:
Do you agree that when he sought sanctions, he was seeking them with respect to both the adverse action part of his mixed claim and the discrimination part of it?

[00:32:44] Speaker 03:
I mean, he was seeking a default judgment, so that would sort of cover everything. But it was, I think the more critical piece is that it is based entirely on EEOC authority, his argument, which, by the way, has changed in the past year.

[00:33:01] Speaker 03:
And it is entirely based on statutes and regulations that are about the discrimination claims. And it would, like, this aspect of board authority can only ever exist in a mixed case. And therefore...

[00:33:15] Speaker 03:
Whatever judicial review there is of that question, it has to be in district court and not in this court.

[00:33:23] UNKNOWN:
Thank you.

[00:33:36] Speaker 04:
You've got rebuttal time. Okay. Okay. Is there rebuttal time left? Thank you. Or we still have three minutes of rebuttal.

[00:33:41] Speaker 02:
Thanks. Thank you. Just really two points.

[00:33:47] Speaker 02:
First, with respect to the deciding official's testimony, and specifically in Appendix 3788, which was referenced by counsel for the government, at the very bottom of that page, Mr. Staten, the deciding official, was asked, quote, and when you made a decision, did you rely in any way on the OPR's decision to give Mr. Jadu his security clearance? No. No.

[00:34:15] Speaker 02:
So he didn't consider it at all.

[00:34:16] Speaker 01:
What does it mean to say, did he rely on it?

[00:34:22] Speaker 01:
I'm sorry, I didn't hear the first part. They said to him, did you rely on their decision to give him a security clearance? What would it have meant if he had replied?

[00:34:32] Speaker 02:
If he had relied, if he had considered it, then you could say that.

[00:34:38] Speaker 01:
Consider and rely are two different things.

[00:34:41] Speaker 02:
I think you could argue, I don't have a dictionary in front of me, but I think you could.

[00:34:46] Speaker 04:
If you relied on it, wouldn't you assume that that meant that you've deferred it, you've deferred to it? Well, he didn't. And we know that. And he explained the reasons why, because he made his independent judgment on the thing of Canada and their two different proceedings.

[00:35:01] Speaker 02:
But I don't think he explained that he didn't consider the grant of the security clearance in evaluating the penalties.

[00:35:10] Speaker 01:
You put a lot of weight on the word rely.

[00:35:13] Speaker 02:
Well, not just that. There's also the decision letter, which doesn't mention the grant to the security clearance, and the Douglas factors analysis that he did that's in the appendix that doesn't mention the PSU security clearance. So it's not just the rely.

[00:35:31] Speaker 02:
And, well, I made my point, so unless there's other questions. Yes.

[00:35:36] Speaker 00:
Do you agree that on the jurisdictional question that the types of board authority that you're saying were violated here, they're only implicated in, they only apply to mixed cases?

[00:35:53] Speaker 00:
You heard what your friend on the other side said. She drew a very strong distinction that all the statutes, all the regulations, everything that you based your sanctions on, as I understood her, Only apply in mixed cases.

[00:36:05] Speaker 02:
I don't think so, because 1201.43. Which one? I'm sorry, 1201.43, the sanctions regulation.

[00:36:12] UNKNOWN:
1201.43?

[00:36:12] Speaker 02:
Correct. It doesn't say anything about only in non-mixed cases. It says all the cases that the board has, and that includes mixed cases. And the EOC, going kind of back to your point, Judge Clevenger, they don't have jurisdiction requirements. over otherwise appealable actions like the board does.

[00:36:34] Speaker 04:
Okay, thank you.

[00:36:36] Speaker 02:
Thank you very much.

[00:36:37] Speaker 04:
And both sides, the case is submitted.