[00:00:00] Speaker 01:
The next case for argument is 24-1900, Comuncon v. Defend.

[00:00:08] Speaker 01:
Sir, we're ready whenever you are, Mr. Bonk.

[00:00:12] Speaker 03:
Always wise to have a drink before you address it.

[00:00:15] Speaker 04:
And I apologize in advance, Your Honors.

[00:00:17] Speaker 04:
I'm a little bit hoarse.

[00:00:19] Speaker 04:
I'm just coming over for some illness, and it's still impacting my voice.

[00:00:22] Speaker 04:
So if my projection is a little bit less than it might be.

[00:00:25] Speaker 04:
Hopefully you're not cetacean.

[00:00:26] Speaker 04:
Not at all, Judge.

[00:00:28] Speaker 04:
I verified that before here, well in advance.

[00:00:33] Speaker 04:
Thank you.

[00:00:33] Speaker 04:
Good morning, Your Honors, and may it please the court.

[00:00:35] Speaker 04:
Christopher Bonk on behalf of Petitioner Diane Comungen.

[00:00:38] Speaker 04:
Here, the deciding official ordered an investigation following are based on her own allegations that she crafted, then altered the findings, directed her top subordinate to consider an adverse action based on those altered findings.

[00:00:52] Speaker 03:
That just doesn't comply with the record.

[00:00:55] Speaker 03:
You're just first statement.

[00:00:58] Speaker 03:
On page 19 of your blueberry,

[00:01:04] Speaker 03:
You say Lieutenant Colonel Kramer issued a 32-page investigative report directly to Ms.

[00:01:09] Speaker 03:
Winbush.

[00:01:12] Speaker 03:
And you cite the appendix of 1393 to 1424.

[00:01:15] Speaker 03:
When I turned to the next page, it was number 33.

[00:01:19] Speaker 03:
33 denotes the 32 enclosures that Colonel Kramer included in his report.

[00:01:31] Speaker 03:
There are hundreds of pages of evidence, interviews, statements of people who self-reported to protect themselves.

[00:01:41] Speaker 03:
And they stretch across the two appendix volumes from 3887 to 4325.

[00:01:47] Speaker 03:
Doesn't that make sense?

[00:01:51] Speaker 03:
misrepresent the scope of the content of Lieutenant Colonel Kramer's report.

[00:01:57] Speaker 03:
It's not a 32-page report.

[00:02:00] Speaker 04:
Certainly, Judge.

[00:02:00] Speaker 04:
And I think the findings is what we're referring to.

[00:02:02] Speaker 04:
And that is the factual findings on the particular allegations is what we're referring to.

[00:02:06] Speaker 04:
The report of investigation, I think, begins at 1396.

[00:02:10] Speaker 04:
There were Kramer's ROI.

[00:02:11] Speaker 03:
You didn't mention that the investigation, the Riverside incident, was the third investigation over the course of a couple of years.

[00:02:19] Speaker 03:
in which the agency found that Kamunkin and others repeatedly mishandled classified documents.

[00:02:26] Speaker 03:
But the board noted it on appendix page four.

[00:02:30] Speaker 03:
Why didn't you mention that or discuss it?

[00:02:32] Speaker 04:
Because here, Judge, what I think that concerns us is the due process violation.

[00:02:36] Speaker 04:
And the due process violation occurs when Ms.

[00:02:38] Speaker 04:
Comungin takes the allegations that she raised, receives the ROI report from the investigating officer at 1396, and then revises those findings materially.

[00:02:51] Speaker 04:
Her revised change expanded findings at 1389 on the appendix.

[00:02:56] Speaker 04:
That's where the due process violation occurs.

[00:02:59] Speaker 03:
Wimbush's involvement in the pre-termination process in a number of ways.

[00:03:05] Speaker 03:
And I circled these in the blue brief, that she crafted the initial allegations, revised the findings of Lieutenant Colonel Cramer's report, gave instruction to Mr. Gagne to propose termination.

[00:03:22] Speaker 03:
But the board's findings are different.

[00:03:24] Speaker 03:
Factual findings are different.

[00:03:26] Speaker 03:
How can we characterize

[00:03:29] Speaker 03:
if you accept your characterization of events, when our review is governed by the substantial evidence standard and there's lots of evidence in there.

[00:03:38] Speaker 04:
Because judge here what we're looking at is is ultimately a issue or question of a pre decisional due process That's that that question this court refused to Nova.

[00:03:49] Speaker 04:
Was there a violation of?

[00:03:50] Speaker 01:
miscommungance Due process right or meaningful the board reach and I maybe miss me remembering but didn't the board reject the allegations you made as to the nature of her participation in the investigation That's correct judge and if that's true

[00:04:08] Speaker 01:
You can't say we're not going to accept your version of that.

[00:04:12] Speaker 01:
We're going to accept the board's version of that unless you can establish that there's no substantial evidence to support.

[00:04:18] Speaker 01:
And whether or not you're raising a due process claim or some other claim, that doesn't change that fact in terms of what the record is for us to review, right?

[00:04:28] Speaker 01:
I don't understand your answer.

[00:04:30] Speaker 04:
I think the distinction here, Judge, is a lot of the focus that the board

[00:04:36] Speaker 04:
centers and you're right they disagree with the characterization of the materiality really is the essence of the materiality of this revisions to the allegations and that's where I think it really gets into the crux of our argument here is where you have those material revisions where you have those material alterations the factual findings that flow from that are largely irrelevant

[00:04:57] Speaker 04:
the assertions of the determinations for example with the it's raising respondents brief as well but also in the board decision of course that a lot of these revisions are essentially conclusion that they're that they're they're harmless right there they're the the changes that miss winbush made are not material they do not impact at the end of the day and i think that is is missing the point here what we're caring about what we're focusing on here is

[00:05:20] Speaker 04:
If you have this pre-decisional investigative involvement, the depth of Ms.

[00:05:24] Speaker 04:
Wingbush's involvement in altering these investigative findings, taking the ROI conclusions and altering them in a material fashion, that then rises to this level of investigative interference that then brings this into a pre-decisional due process violation consideration.

[00:05:39] Speaker 04:
And that, the score can look at de novo.

[00:05:41] Speaker 03:
As a matter of fact, they held below that she didn't alter them in a material fashion.

[00:05:48] Speaker 03:
They didn't.

[00:05:48] Speaker 03:
That's correct, Judge.

[00:05:50] Speaker 02:
So and what is our review of the finding that the alterations were not material?

[00:05:56] Speaker 02:
Isn't that a deferential standard of review?

[00:05:58] Speaker 04:
It could be, Judge.

[00:06:01] Speaker 04:
It could be or it is.

[00:06:06] Speaker 02:
I think you need us to find that there's a due process violation even accepting the finding that the changes in the memo, at least that portion of your argument, were not material.

[00:06:21] Speaker 04:
So I don't fully agree with that, Judge, I think.

[00:06:27] Speaker 04:
I think really we do need, and part of our essential core of our argument here is that these revisions were indeed material.

[00:06:35] Speaker 04:
And we go into, I think, a reasonably amount of depth in our briefings on

[00:06:40] Speaker 04:
why the judges and the conclusions at the board level are erroneous on this.

[00:06:46] Speaker 02:
But you agree that our review of the finding of non-materiality of the changes in the Wind Bush memo is for substantial evidence.

[00:06:55] Speaker 02:
Do you agree with that?

[00:06:57] Speaker 04:
Not wholly judged.

[00:06:57] Speaker 04:
And here's the distinction I want to try to make here.

[00:07:00] Speaker 04:
I think the approach that we're looking at here is that what the board didn't do is look at these materiality revisions or this consideration of whether these were material or not from the subjective standard.

[00:07:12] Speaker 04:
I think the approach taken by the board airs into the subjective consideration.

[00:07:17] Speaker 04:
And the same thing within the respondent's briefing on this as well, where

[00:07:22] Speaker 04:
digging into the materiality determination.

[00:07:27] Speaker 04:
That conclusion as to whether or not the revisions were material or not centers in no small part on this later assessment or determination of did the board uphold this?

[00:07:38] Speaker 04:
Did the board ultimately uphold the allegations?

[00:07:41] Speaker 04:
And I think that is an error of law where the board goes and approaches this in a subjective fashion.

[00:07:49] Speaker 04:
What really needs to happen is looking, and really I think

[00:07:51] Speaker 04:
very instructive in the circumstance of Stone.

[00:07:54] Speaker 04:
And we're looking at the situation where we have pre-decisional due process violations, pre-deprivation due process violations.

[00:08:01] Speaker 02:
OK.

[00:08:01] Speaker 02:
So my understanding is you say the board and we should apply an objective standard.

[00:08:09] Speaker 02:
Basically, would a reasonable person think Ms.

[00:08:11] Speaker 02:
Wynn-Bush was biased as opposed to a factual subjective standard?

[00:08:17] Speaker 02:
Was she proven to be biased?

[00:08:18] Speaker 02:
Is that your position?

[00:08:19] Speaker 04:
That's a fair summation, Judge.

[00:08:20] Speaker 02:
But you get that objective standard from cases like Stone that I think involve reliance on ex parte information that may not be in the record, which really isn't this situation, is it?

[00:08:34] Speaker 04:
It's not exactly a situation, Judge, but it's very well integrated.

[00:08:37] Speaker 04:
It's very well interlinked.

[00:08:38] Speaker 03:
Everything you rely on in that context is about judges, right?

[00:08:42] Speaker 04:
Sorry, Judge, I didn't hear you.

[00:08:43] Speaker 03:
It's about judges and communications.

[00:08:46] Speaker 04:
whether judges are disqualified.

[00:08:49] Speaker 04:
Some of those cases certainly do.

[00:08:50] Speaker 01:
Can I ask you then, before your time runs out, there are three cases that I think are really relevant to this appeal.

[00:08:57] Speaker 01:
Two of our cases, de Sarno and Hanley, which deal with this type of situation of the alleged due process violation because of the simile of the same person.

[00:09:07] Speaker 01:
And then we've got Laudamil.

[00:09:09] Speaker 01:
So can you just tell us why our conclusion is not governed by that precedent?

[00:09:19] Speaker 01:
And let me throw in withdrawal as well.

[00:09:22] Speaker 04:
And Judge, I appreciate that, because I was going to as well, I think.

[00:09:26] Speaker 04:
Very easily distinguishable, I think, from DiSarno handling all that.

[00:09:30] Speaker 04:
And here we have a

[00:09:34] Speaker 04:
wholly different role, a wholly different level of involvement from the deciding official than we're looking at DiSarno and Hanley.

[00:09:40] Speaker 04:
DiSarno, of course, we have the deciding official being both proposing a deciding official, Hanley, the deciding official ordering the investigation into a claim of sexual harassment.

[00:09:48] Speaker 04:
But here,

[00:09:51] Speaker 04:
Those in and of themselves, of course, under the sports case law doesn't quite rise to that level of due process violation.

[00:09:56] Speaker 04:
But there's more here.

[00:09:57] Speaker 04:
There is a fundamental additional involvement by Ms.

[00:10:03] Speaker 04:
Winbush in the circumstance.

[00:10:04] Speaker 04:
So for example, with Henley, where the deciding official ordered the investigation.

[00:10:08] Speaker 04:
They received a claim of sexual harassment.

[00:10:10] Speaker 04:
They ordered the investigation.

[00:10:11] Speaker 04:
They moved forward with it.

[00:10:12] Speaker 04:
They acted as the deciding official.

[00:10:14] Speaker 04:
When Bush went further here, she framed the allegations.

[00:10:17] Speaker 04:
She subsequently then revised the allegations.

[00:10:19] Speaker 04:
She didn't simply receive the allegations or hand off the allegations.

[00:10:22] Speaker 03:
When you say she revised them, isn't it fair to say that she summarized them?

[00:10:28] Speaker 04:
I do not believe so, Judge.

[00:10:29] Speaker 04:
And that really goes, I think, to this.

[00:10:31] Speaker 01:
But just back to Hanley.

[00:10:34] Speaker 01:
Hanley involved in a situation where the proposing adjudicator was the same as the deciding official.

[00:10:41] Speaker 01:
In this case, it's

[00:10:43] Speaker 01:
stronger against you, I think, given that there's an intervening proposing official.

[00:10:49] Speaker 01:
Because all she said is you should look at whether or not there's an adverse action here.

[00:10:54] Speaker 01:
And there was an independent proposing official.

[00:10:58] Speaker 01:
And Hanley was the same person.

[00:11:00] Speaker 01:
Investigation, proposal, deciding.

[00:11:02] Speaker 01:
Same person.

[00:11:02] Speaker 04:
So I would disagree, Judge.

[00:11:04] Speaker 04:
I do think our situation is stronger than in Hanley.

[00:11:07] Speaker 01:
Do you disagree?

[00:11:08] Speaker 01:
Is anything that I said wrong other than it's stronger than you describing Hanley?

[00:11:13] Speaker 04:
So no, Judge.

[00:11:15] Speaker 04:
I think your summary of the case format is accurate.

[00:11:19] Speaker 04:
The issue here, and I think our situation is distinct.

[00:11:23] Speaker 04:
If we have a deciding official, for Hanley, for example, we have an individual serving as both a proposing and deciding official, ordered an investigation, received investigative findings, they did not go back and change the investigative findings.

[00:11:37] Speaker 04:
They did not go and intervene in the investigation.

[00:11:40] Speaker 04:
They received it.

[00:11:41] Speaker 04:
And that really goes to this crux of the issue of, was there a meaningful opportunity to respond?

[00:11:47] Speaker 04:
And there's plenty of case law out there, as you pointed out here with some of these other case references, where the deciding and proposing official can be the same person.

[00:11:55] Speaker 04:
They can receive investigative findings, propose reasonable action based on the independent conclusions.

[00:12:01] Speaker 04:
And a reasonable response under that circumstance is still possible, not so here.

[00:12:06] Speaker 04:
Here, Ms.

[00:12:08] Speaker 04:
Wimbush framed the allegations.

[00:12:10] Speaker 04:
received investigative findings on that, altered those investigations to comport back with her initial allegations, and then sent those on with an instruction to her direct supportant to find adverse action based on her revised allegations.

[00:12:26] Speaker 01:
I'd say to find adverse action or to consider?

[00:12:28] Speaker 04:
Or to consider, I think, correct judgment.

[00:12:30] Speaker 01:
There's a big difference.

[00:12:31] Speaker 01:
And then as part of her capacity, is Director Wynn Bush a male or female?

[00:12:37] Speaker 01:
Female.

[00:12:39] Speaker ?:
OK.

[00:12:40] Speaker 01:
duties as the deciding official, there's no due process deficiency there, right?

[00:12:45] Speaker 01:
I mean, she gave your client the interviews, gave her an opportunity to respond to everything.

[00:12:52] Speaker 01:
There's no defect in the way that was handled as a deciding official, correct?

[00:12:57] Speaker 04:
It's a defect in her serving as a deciding official, considering the circumstances.

[00:13:01] Speaker 01:
What about Hanley?

[00:13:03] Speaker 01:
I'm not Hanley.

[00:13:04] Speaker 01:
Does Sarna?

[00:13:05] Speaker 04:
No, in DiSarno, again, proposing a deciding official serving as the same individual, I think that's fine in that circumstance.

[00:13:12] Speaker 04:
Again, we don't have in DiSarno the situation where there is an intervening or an involvement, excuse me, an interference by the proposing official, excuse me, the deciding official in those investigative conclusions when they move forward.

[00:13:25] Speaker 04:
I see I'm in my rebuttal time there, Your Honors.

[00:13:29] Speaker 04:
OK.

[00:13:29] Speaker 04:
Go next.

[00:13:37] Speaker 00:
May I please support?

[00:13:39] Speaker 00:
As the court has heard, Ms.

[00:13:41] Speaker 00:
Kamunkun's appeal.

[00:13:42] Speaker 03:
This is so confusing.

[00:13:45] Speaker 03:
Isn't this the Department of War now?

[00:13:48] Speaker 00:
This component of DOD, they handle issues related to prisoners of war.

[00:13:55] Speaker 00:
How is this true?

[00:13:57] Speaker 00:
Oh, sorry.

[00:14:00] Speaker 00:
As the court has heard, Ms.

[00:14:02] Speaker 00:
Kamunkin's appeal turns on a disregard of this court's due process case law, as well as the evidence.

[00:14:09] Speaker 00:
I will begin, and I will touch on briefly, Ms.

[00:14:12] Speaker 00:
Kamunkin's bias arguments, beginning with the argument that the agency was biased because of her claim that acting director Wynn Bush framed the allegations against Ms.

[00:14:26] Speaker 00:
Kamunkin and ordered an

[00:14:28] Speaker 00:
an investigation into those allegations.

[00:14:31] Speaker 00:
First of all, Your Honors, the board decisions incorporate extensive evidence establishing that it was two eyewitnesses, contract employees who- Yeah, but that has something to do with the fact.

[00:14:49] Speaker 03:
You can take it, given that we've read the description.

[00:14:53] Speaker 00:
Yes.

[00:14:54] Speaker 00:
I just wanted to gauge what was important for your honesty here.

[00:14:59] Speaker 00:
I mean, the key issue here is that the eyewitness statements of eyewitnesses are what began this investigation process.

[00:15:12] Speaker 00:
First of all, after returning from California, one of the contract employees provided a written statement to her supervisor.

[00:15:20] Speaker 01:
No, as Judge Wallach pointed out, we know what happened.

[00:15:23] Speaker 00:
We know what brought us here.

[00:15:25] Speaker 01:
But now we're here and we're looking at whether or not this

[00:15:28] Speaker 01:
series of events was sufficient to establish a due process violation.

[00:15:33] Speaker 01:
So why don't you tell us why you don't think that's the case?

[00:15:36] Speaker 00:
It does not establish a due process violation based on this court's case law and the record and the evidence.

[00:15:43] Speaker 00:
Under Norris, as well as, as Your Honor mentioned, Hanley and DiSarno, the idea that a deciding official can play or one individual can play multiple roles, including as an investigator,

[00:15:56] Speaker 00:
including having knowledge of the misconduct, the facts related to the misconduct, including serving as a proposing official, do not offend due process.

[00:16:09] Speaker 00:
So clearly, Ms.

[00:16:10] Speaker 00:
Kamunkin.

[00:16:11] Speaker 02:
Do any of our cases address what Ms.

[00:16:15] Speaker 02:
Kamunkin argues is that deciding official crossing some sort of line and making all sorts of substantive and material revisions to both the allegations and the findings at the end of the day?

[00:16:29] Speaker 02:
Have we addressed that kind of scenario?

[00:16:32] Speaker 00:
Your Honor, I would say the court's best case

[00:16:37] Speaker 00:
in terms of covering these scenarios, would be Hanley involving, and beginning to address your honor's question, there was no crossing the line.

[00:16:49] Speaker 00:
The court's cases, including Hanley, stand for the proposition that a deciding official can be involved in the investigation, can have knowledge of the misconduct, can serve in the role of a proposing official.

[00:17:03] Speaker 00:
Norris does as well.

[00:17:05] Speaker 00:
Norris is also a case where this court looked at a deciding official that had knowledge of the underlying conduct.

[00:17:14] Speaker 00:
So nothing presented here offends due process under this case.

[00:17:18] Speaker 02:
What is our standard of review of the board's finding that Ms.

[00:17:23] Speaker 02:
Lindbush's involvement or modification of the memo, for instance,

[00:17:28] Speaker 02:
was not material, was not substantive.

[00:17:31] Speaker 02:
Do we review that deferentially, or do we decide that ourselves de novo?

[00:17:35] Speaker 00:
Your Honor defers to the board's findings.

[00:17:38] Speaker 00:
And here, the board heard testimony from Acting Director Wunbush as to why she prepared a memo.

[00:17:48] Speaker 00:
Acting Director Wunbush testified in front of the board that she prepared that memo in order to summarize Lieutenant Cramer's

[00:17:56] Speaker 00:
report of investigation and also to make it more succinct.

[00:18:03] Speaker 00:
And that was the extent of her involvement.

[00:18:07] Speaker 01:
But would that be any different even if her involvement were greater than that?

[00:18:11] Speaker 01:
The proposing official

[00:18:13] Speaker 01:
makes decisions, decides what the charges should be, what the specifications are.

[00:18:19] Speaker 01:
It's pre-final decision, but it's the preliminary determination.

[00:18:23] Speaker 00:
Exactly right.

[00:18:24] Speaker 01:
And our cases say that that same person can be the deciding official.

[00:18:28] Speaker 01:
It seems to me what comes out in our cases that's clear has to do more with her having had a fair opportunity to respond.

[00:18:36] Speaker 01:
I mean, that's kind of stone where the deciding official goes outside the record with ex parte communications.

[00:18:43] Speaker 01:
And it's inherent in a lot of our cases about her having a fair opportunity to respond to these allegations, which I think she did.

[00:18:53] Speaker 00:
She did.

[00:18:53] Speaker 00:
She clearly did.

[00:18:54] Speaker 00:
They intimate that because acting director Wynn Bush was a deciding official.

[00:19:02] Speaker 00:
that they were somehow entitled to an impartial decision maker.

[00:19:06] Speaker 00:
That's clearly not the standard, Your Honor.

[00:19:08] Speaker 00:
They cite, as Judge Wallach pointed out, they cite a

[00:19:12] Speaker 00:
a list of inopposite cases from the judicial recusal context, from the ex parte communications context, from the context involving quasi-judicial proceedings.

[00:19:24] Speaker 00:
None of those cases provide the appropriate standard.

[00:19:27] Speaker 01:
And what does Laudamil tell us what's required?

[00:19:30] Speaker 01:
I'm sorry?

[00:19:30] Speaker 01:
Laudamil.

[00:19:32] Speaker 00:
A notice of the charges, an opportunity to review the evidence, and an opportunity to respond to the evidence.

[00:19:40] Speaker 00:
That is what due process requires.

[00:19:42] Speaker 00:
And it's clear that Ms.

[00:19:43] Speaker 00:
Kamunkin had three opportunities to respond to the evidence, including two written and one oral.

[00:19:50] Speaker 00:
So they really don't have an argument in terms of whether or not she had an opportunity to respond to Anna.

[00:19:58] Speaker 00:
And as for the subjective standard that counsel Ms.

[00:20:02] Speaker 00:
Kamunkin argues, clearly, again, those cases that they rely upon for this objective

[00:20:09] Speaker 00:
standard are in opposite.

[00:20:12] Speaker 00:
The burden was on Ms.

[00:20:13] Speaker 00:
Kamunkin to provide evidence of a due process violation, and she failed to carry her burden to do so, as the board recognized in view of the record evidence, as well as the governing law.

[00:20:31] Speaker 00:
If your honor has no more questions, thank you.

[00:20:33] Speaker 00:
We ask that the board's decision be affirmed.

[00:20:51] Speaker 03:
Your Honor.

[00:20:51] Speaker 03:
Your Honor, so am I correct that under current authority, the deciding official could be the investigating official?

[00:21:02] Speaker 04:
They can, Judge, yes.

[00:21:03] Speaker 03:
And if they're the investigating official, they can write a report.

[00:21:08] Speaker 03:
Am I correct about that?

[00:21:10] Speaker 04:
They could write a report, yes, Judge.

[00:21:14] Speaker 03:
I'm sorry, Ms.

[00:21:16] Speaker 03:
Winthrow?

[00:21:18] Speaker 03:
Winbush.

[00:21:18] Speaker 03:
Winbush.

[00:21:20] Speaker 03:
Could have written the report without Lieutenant Colonel Kramer having any input to it, right?

[00:21:27] Speaker 03:
She could have written the report.

[00:21:28] Speaker 03:
Then that would have been consistent with due process, right?

[00:21:31] Speaker 04:
Not necessarily, Judge.

[00:21:33] Speaker 04:
And that's really, I think, a really important distinction.

[00:21:35] Speaker 04:
And I know you mentioned Winthrow before, and we didn't get to it quite a bit earlier.

[00:21:39] Speaker 04:
But that's a really important point that I think is- He just agreed with me.

[00:21:42] Speaker 04:
No, no.

[00:21:43] Speaker 03:
You agreed with me that she could be the investigating.

[00:21:46] Speaker 03:
She can be the investigating official.

[00:21:48] Speaker 03:
And as the investigating official, she can draft a report.

[00:21:51] Speaker 03:
Yes, Judge.

[00:21:53] Speaker 03:
So if she can draft a report, can she edit that draft after she finishes writing it?

[00:21:59] Speaker 03:
Certainly, Judge.

[00:22:00] Speaker 03:
Then why is it inconsistent with due process if she edits Lieutenant Colonel Kramer's report?

[00:22:07] Speaker 04:
Because here we have an interference in the investigation, Judge.

[00:22:10] Speaker 04:
And there's additional involvement here by Ms.

[00:22:13] Speaker 04:
Wynn-Bush that we are not looking at in those circumstances.

[00:22:15] Speaker 04:
And I think in withrow, the court makes that clear, leaves that door open.

[00:22:20] Speaker 04:
The court in withrow, of course, says you can be an investigating official or an investigating individual and be an adjudicator at the same time.

[00:22:28] Speaker 04:
That's fine.

[00:22:29] Speaker 04:
The issue is, and the court leaves open this issue, there can still be circumstances that the courts need to consider whether or not that overlap.

[00:22:39] Speaker 04:
the circumstances give rise to a risk of unfairness that's intolerably high.

[00:22:43] Speaker 04:
And a lot of those circumstances, the additional cases that that court cites to from various circuits, involve the depth of involvement in that investigatory stage.

[00:22:52] Speaker 04:
And so here we have Ms.

[00:22:54] Speaker 04:
Winbush, and I think really important to flag for this is the structure of this approach.

[00:22:58] Speaker 04:
Ms.

[00:22:59] Speaker 04:
Winbush put together initial allegations, sent them for investigation.

[00:23:02] Speaker 04:
When she received back those investigative findings, she did not just hand that off to her direct subordinate to pursue an adverse action or consider adverse action.

[00:23:13] Speaker 04:
Rather, her allegations would have still been there.

[00:23:16] Speaker 04:
She went back and materially revised, changed the investigations, issued a whole new document.

[00:23:21] Speaker 04:
that summarized her own understanding of what the allegations should be, which comported them back to her allegations.

[00:23:28] Speaker 04:
She took additional interfering actions, additional interfering steps there that step past this court's comparable precedent.

[00:23:35] Speaker 01:
Thank you.

[00:23:36] Speaker 01:
We thank both sides.

[00:23:37] Speaker 01:
The case is submitted.

[00:23:38] Speaker 04:
Thank you, Judge.