[00:00:00] Speaker 04:
And our final case this morning is number 242157, Torres versus DHS.

[00:00:07] Speaker 04:
OK, Mr. O'Donnell.

[00:00:09] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:11] Speaker 00:
My name is Keith O'Donnell, and I represent Petitioner Christian Torres on this appeal.

[00:00:16] Speaker 00:
This appeal raises two main issues.

[00:00:19] Speaker 00:
The first is whether the MSPB abused its discretion in relying upon the agency's purported gelio impairment concerns.

[00:00:28] Speaker 00:
With that first,

[00:00:30] Speaker 00:
doing an individualized assessment of whether or not Mr. Torres was in fact JILIO impaired and whether and to what extent that JILIO impairment may have an impact on his day-to-day job duties.

[00:00:43] Speaker 00:
The second issue is whether the MSPB abused its discretion, sustaining the penalty of removal, where that penalty was unreasonably harsher than the penalties imposed upon agency law enforcement employees charged with the same or similar offenses.

[00:01:00] Speaker 00:
As to the first issue, Your Honor, it's important to first consider the significance of julio impairment issues as they relate to the assessment of the reasonableness of an agency's penalty determination.

[00:01:13] Speaker 00:
The 12 factors set forth in Douglas are non-exhaustive.

[00:01:16] Speaker 00:
In fact, this court in purifoy against VA held, or recognized,

[00:01:23] Speaker 00:
that the factors set forth in Douglas are non-exhaustive risk considerations that the board must assess when relevant to determine whether a penalty was reasonable.

[00:01:34] Speaker 00:
In recognizing that the Douglas factor list is non-exhaustive, this Court necessarily recognized that in particular cases, there may be other factors, although not enumerated in Douglas, that are nevertheless relevant and significant to the assessment of the reasonableness of an agency's penalty determination.

[00:01:55] Speaker 00:
I submit to Your Honors that in a case like this, involving a law enforcement officer, where there is a sustained charge of lack of candor, giglio impairment concerns is one such factor.

[00:02:09] Speaker 00:
That's why in this court, in Torres against DHS, in that case it was Crispin Torres.

[00:02:16] Speaker 03:
So we agree with you that giglio impairment is an appropriate thing to consider under Douglas.

[00:02:22] Speaker 03:
So what is your argument for what happened here, what the board did here in considering the giglio impairment?

[00:02:30] Speaker 03:
Why wasn't it enough?

[00:02:32] Speaker 03:
Why wasn't it enough to say?

[00:02:34] Speaker 03:
Because there has to be some review of the agency's determination.

[00:02:39] Speaker 03:
The agency was concerned that there could be giglio impairment.

[00:02:43] Speaker 03:
And it was one of many factors that was considered.

[00:02:46] Speaker 03:
So why?

[00:02:49] Speaker 03:
Why isn't that good enough, given the position, the nature of Mr. Torres' position?

[00:02:56] Speaker 00:
Your Honor, a very similar issue came up in the Torres against DHS opinion that this court rendered in 2023.

[00:03:03] Speaker 00:
In that case, again, you had a law enforcement officer that has sustained charge of lack of candor.

[00:03:13] Speaker 00:
But what the MSPB failed to do and what this court said

[00:03:18] Speaker 00:
MSPB should have done is determine specifically, okay, just because you are potentially maybe JILIO impaired doesn't mean that that's actually going to affect your day-to-day job activities.

[00:03:31] Speaker 00:
What's significant here is that there's testimony in the record.

[00:03:35] Speaker 00:
In fact, the only testimony in the record that goes to what, if any, impact a JILIO impairment may have comes from the petitioner himself who testified that in his 12 years as a – in the agency.

[00:03:47] Speaker 00:
He never once testified as part of his regular job duties.

[00:03:51] Speaker 00:
Never once.

[00:03:52] Speaker 00:
And it's the failure of the MSPP and the agency to grapple with the issue.

[00:03:59] Speaker 04:
Where does the AJ discuss the Julyon impairment page?

[00:04:04] Speaker 00:
I'm sorry, where the AJ discusses Julyon impairment?

[00:04:07] Speaker 00:
One second, Your Honor.

[00:04:21] Speaker 00:
It is.

[00:04:22] Speaker 00:
So the AJ appendix page 24, the AJ credits the testimony of each side.

[00:04:32] Speaker 04:
What did Sabatino say about that?

[00:04:34] Speaker 04:
That's correct.

[00:04:35] Speaker 04:
What did he say about that?

[00:04:36] Speaker 00:
Sabatino said.

[00:04:38] Speaker 00:
Where?

[00:04:38] Speaker 00:
What page?

[00:04:39] Speaker 00:
It's still on 24.

[00:04:40] Speaker 04:
Oh, no, no, no.

[00:04:41] Speaker 04:
The actual testimony.

[00:04:50] Speaker 00:
Your Honor, I don't have that testimony in front of me.

[00:04:53] Speaker 00:
I'd be happy to submit a letter explaining the nature of the testimony.

[00:05:00] Speaker 00:
OK, that's all right.

[00:05:01] Speaker 00:
Go ahead.

[00:05:06] Speaker 00:
OK.

[00:05:08] Speaker 00:
So again, as

[00:05:09] Speaker 00:
This court's decision in Torres provides where there is a failure of the MSPB to conduct that analysis of the nature of the Julio impairment and the impact it may have.

[00:05:21] Speaker 00:
We amend for a more thorough review of that issue as formed.

[00:05:33] Speaker 03:
With respect to the second issue, there were certain comparators that I think you relied on.

[00:05:42] Speaker 03:
In any of those comparator situations, had the person who engaged in the misconduct been previously warned, had they engaged in similar misconduct in the past and been warned that if they engaged in similar misconduct, they would be removed?

[00:06:01] Speaker 00:
The answer to that question is no, Your Honor.

[00:06:04] Speaker 00:
Although I would note for the record that although Christian Torres, in this case, did have that prior misconduct, even as the deciding official put in her decision letter, that was only considered with respect to his knowledge.

[00:06:24] Speaker 00:
It wasn't considered with respect to

[00:06:27] Speaker 00:
progressive discipline, but a point understood, Your Honor.

[00:06:30] Speaker 00:
No, there was not.

[00:06:35] Speaker 00:
As for the second issue, the petitioner offered into evidence at the hearing before the MSPB comparator discipline cases in which the agency imposed a penalty short of removal

[00:06:45] Speaker 00:
Again, similarly situated employees charged with offenses that were the same or similar to the charges imposed against petition.

[00:06:52] Speaker 00:
Board's failure to address this issue as well.

[00:06:55] Speaker 02:
Well, counsel, where in the record did Mr. Torres first raise a disparate treatment claim before the board?

[00:07:02] Speaker 02:
Do you have a citation?

[00:07:11] Speaker 00:
Sure, Your Honor.

[00:07:12] Speaker 00:
So Your Honor, the first instance in which

[00:07:16] Speaker 00:
The concept of disparate penalties was raised, although not explicitly, was one, when petitioner offered at the hearing comparative discipline cases as exhibits.

[00:07:30] Speaker 00:
Two, petitioner cross-examined the deciding official in this case with respect to several of those comparative discipline cases.

[00:07:40] Speaker 03:
Is there anything in the appendix on that?

[00:07:44] Speaker 00:
Sure.

[00:07:44] Speaker 00:
So, with respect to the offer of comparative cases, I could give you that.

[00:07:50] Speaker 00:
That would be Appendix 0374 through 0389.

[00:08:03] Speaker 00:
Tischner cross-examined the designing official about some of those cases, not all of those cases, but some of those cases at 0518 to 0521.

[00:08:17] Speaker 00:
Petitioner also argued in his post hearing written closing arguments that the agency had failed to consider any comparator cases and therefore could properly consider the Douglas factors in determining an appropriate penalty, not withstanding the fact that the deciding official in Petitioner's case was the same deciding official in some of the other comparators.

[00:08:38] Speaker 00:
So again, although the

[00:08:40] Speaker 00:
disparate penalty argument wasn't expressly raised, certainly the concept that the deciding official should have looked at these comparator cases was.

[00:08:50] Speaker 00:
Indeed, in the agency's own written closing argument.

[00:08:55] Speaker 04:
What's your best argument that there was a comparator like your client?

[00:08:59] Speaker 00:
I apologize, Your Honor.

[00:08:59] Speaker 04:
What's your best instance where there's a supposed comparator like your client?

[00:09:06] Speaker 00:
Your Honor, so one of the four comparator cases offered

[00:09:09] Speaker 00:
It's referred to as Comparator 2 in Petitioner's Briefing, is a CBP officer in the same field office in the same chain of command as Petitioner, was charged with misuse of position and lack of candor stemming from an incident in which that officer, while off duty, went to the airport at which she worked in uniform

[00:09:38] Speaker 00:
for the purpose of escorting her partner through airport security.

[00:09:45] Speaker 00:
Different facts, right?

[00:09:48] Speaker 00:
Your Honor, the facts are different.

[00:09:50] Speaker 00:
But this court has advised that whenever you're facing a disparate penalty analysis, inherently the facts are going to be different.

[00:09:59] Speaker 00:
It's going to be a fact-intensive analysis.

[00:10:02] Speaker 00:
For example, the facts of the comparator discipline cases

[00:10:06] Speaker 00:
the Crispin-Torres case from 2023 were also not identical to the facts of that case.

[00:10:13] Speaker 00:
In that case, sir?

[00:10:15] Speaker 04:
Identical and similar, different questions.

[00:10:19] Speaker 04:
The example you give is not even similar.

[00:10:23] Speaker 00:
Your Honor, I think when distilled,

[00:10:32] Speaker 00:
Here, the gravamen, I think, of the four charges against Petitioner can be distilled as involving, one, some degree of dishonesty or deception, and two, misuse of the position for his own personal benefit.

[00:10:44] Speaker 00:
With respect to Comparator 2, I think that you have the same underlying factors.

[00:10:51] Speaker 00:
And I say that because... Can I ask you a question?

[00:10:55] Speaker 03:
Could the agency and the MSPB view these comparators as having a different level of seriousness in terms of the conduct?

[00:11:10] Speaker 03:
I mean, it seems to me that there is a different level of seriousness.

[00:11:15] Speaker 00:
Your Honor, so the answer is yes, they could.

[00:11:18] Speaker 00:
But respectfully, I believe that the disparate penalty analysis starts with, one,

[00:11:25] Speaker 00:
is the comparator case being proffered sufficiently similar that it warrants consideration.

[00:11:32] Speaker 00:
And once you've established that it warrants consideration, then the burden shifts to the agency to give a legitimate reason why that case, the penalty in that case, in this case, should be different than the penalty in the comparator case.

[00:11:45] Speaker 00:
That analysis has not happened yet, which is one of the reasons, or which is the primary reason we believe a remand is warranted for further consideration by the board.

[00:11:54] Speaker 02:
But it sounds like implicit in what you just stated is you agree that if the alleged comparators are not sufficiently similar, then no such analysis is required.

[00:12:05] Speaker 00:
That's correct, Your Honor.

[00:12:06] Speaker 00:
This court's case law requires that there be sufficient similarity between a proper comparator and the instant case.

[00:12:13] Speaker 00:
What I was getting to before with respect to Judge Dyke's question is that

[00:12:18] Speaker 00:
Comparator two that I was just explaining, I believe is sufficiently similar.

[00:12:23] Speaker 00:
Again, although at the hearing before the MSPB, the deciding official in this case, Sabatino, testified that she didn't sustain the lack of candor charge in that comparator case where she was also the deciding official, I would submit to you that if you look at the underlying conduct there, it still displays elements of dishonesty and deceit.

[00:12:45] Speaker 00:
And I say that because you have a law enforcement officer

[00:12:48] Speaker 00:
who's off duty, going to the airport dressed in uniform, which is clearly being done to make her colleagues and fellow law enforcement officers at the airport believe she's on duty and there to work, when her purpose is for her own personal benefit, getting her partner through airport security.

[00:13:08] Speaker 00:
And it's that level of deceit and dishonesty, again, coupled with the misuse of her position that I think makes it similar, sufficiently similar, to Mr. Torres' case here.

[00:13:20] Speaker 04:
Okay, you want to save the rest of your time for a bottle?

[00:13:22] Speaker 04:
Yes, Your Honor.

[00:13:23] Speaker 04:
Okay.

[00:13:33] Speaker 04:
Mr. Havens.

[00:13:39] Speaker 04:
Where do we find the Sabatino testimony about Giulio?

[00:13:43] Speaker 01:
Yes, Your Honor.

[00:13:44] Speaker 01:
That's at Appendix 511, transcript, page 70.

[00:13:48] Speaker 01:
Mr. Sabatino testifies there at the transcript, page 70, that this could impact his ability to testify.

[00:13:59] Speaker 01:
Not that it would, but that it could impact his ability to testify.

[00:14:05] Speaker 03:
And that's the same language in the opinion, could, right?

[00:14:08] Speaker 01:
Yes.

[00:14:08] Speaker 01:
And in the decision letter, as Judge Stoll is mentioning, the deciding official said that this conduct could be disclosed under Giglio.

[00:14:21] Speaker 01:
But even if not, Mr. Torres still had a lack of integrity that was significant in her decision.

[00:14:31] Speaker 01:
Your Honor, I think it should be

[00:14:34] Speaker 01:
outlined here before we go any further that Mr. Torres was in a position of authority over individuals seeking entry into our nation.

[00:14:43] Speaker 01:
He abused this position.

[00:14:46] Speaker 01:
He minimizes his conduct and briefing as flaring and misstatements.

[00:14:52] Speaker 03:
Can I ask you something?

[00:14:53] Speaker 03:
I'm sorry to interrupt you, but with respect to Guglio and some of the other issues in the case,

[00:14:59] Speaker 03:
Is it also impactful or relevant that this conduct here was brought to the attention of the Miami Police Department?

[00:15:11] Speaker 01:
Yes, Your Honor.

[00:15:11] Speaker 01:
One of the considerations is the impact that it has on the agency's reputation.

[00:15:17] Speaker 01:
And that is one of the Douglas factors that it's considered.

[00:15:21] Speaker 01:
So yes, it was important to the design official that he

[00:15:26] Speaker 01:
This was a matter handled by the Miami Police Department.

[00:15:29] Speaker 01:
There was a police report filed.

[00:15:31] Speaker 01:
And that that could negatively impact DHS's reputation, particularly because officers such as Mr. Torres are trusted to use their integrity to handle and make decisions.

[00:15:42] Speaker 01:
And this impacts his reputation.

[00:15:45] Speaker 02:
Counsel, why do you contend that the board did not need to address the alleged comparator cases identified by opposing counsel?

[00:15:54] Speaker 01:
Your Honor, for a few reasons.

[00:15:58] Speaker 01:
The first is that the only time that those three, I believe, comparators that were in cross-examination, and by the way, that's appendix 519 through 21, transcript pages 104 through 109, Your Honors, Mrs. Sabatino is merely cross-examined about those comparators.

[00:16:21] Speaker 01:
Conducting cross-examination

[00:16:23] Speaker 01:
about comparators is not the same as developing that argument.

[00:16:27] Speaker 01:
for appeal.

[00:16:29] Speaker 01:
For example, Mr. Torres submitted a written closing argument in this case.

[00:16:35] Speaker 01:
And in that closing argument, there's no mention of disparate treatment.

[00:16:39] Speaker 01:
The only allegation by Mr. Torres is that the administrative judge simply failed to consider Douglas Factor VI.

[00:16:48] Speaker 01:
There's no mention that the individual comparators that were cross-examined about show disparate treatment.

[00:16:59] Speaker 01:
Your Honor, my second point on that would be the deciding official did not need to review these comparators, even if they were properly brought up by Mr. Torres, because none of them are sufficiently similar.

[00:17:11] Speaker 01:
The one brought up here in oral argument, it's actually the fourth one listed in the evidence.

[00:17:19] Speaker 01:
There are seven comparators listed in the evidence.

[00:17:21] Speaker 01:
This is actually the fourth one numerically listed.

[00:17:25] Speaker 01:
It should be mentioned, and I don't think we actually mentioned it in our briefing.

[00:17:29] Speaker 01:
But there's giggly impairment mentioned in the proposal letter of that case.

[00:17:35] Speaker 01:
But then in the actual decision letter, which was just a letter of reprimand, giggly impairment is not mentioned by the deciding official.

[00:17:43] Speaker 01:
So the deciding official in that case considered mitigating circumstances, and it was lessened from removal to a letter of reprimand.

[00:17:50] Speaker 01:
And then the letter of reprimand.

[00:17:51] Speaker 03:
And the potential giggly impairment here

[00:17:55] Speaker 03:
is more significant maybe because at least I remember reading in somebody's opinion.

[00:18:00] Speaker 03:
I think it was the administrative judges that because of the, or maybe it was the agency official's opinion.

[00:18:07] Speaker 03:
Because of the more notoriety with the reporting to the Miami Police Department, this becomes a more bigger concern than going outside the agency, right?

[00:18:17] Speaker 01:
Yes, Your Honor.

[00:18:19] Speaker 01:
And the facts also demonstrate that Mr. Torres was in a rover position at the airport that day.

[00:18:26] Speaker 01:
So using our general knowledge of customs at the airport, this was not a position where he was merely stamping passports.

[00:18:33] Speaker 01:
This is the position where he was expected to use his discretion to rove about this area of the airport and make decisions about who to take into secondary.

[00:18:45] Speaker 01:
And Your Honor, I think my third point on this is that simply as petitioner points out,

[00:18:53] Speaker 01:
The Douglas factor list is not exhaustive, and all do not need to be mentioned in every case.

[00:18:58] Speaker 01:
So even if the administrative judge expressly failed to consider the comparators under Douglas factor six, that still would not warrant this case returning to the board.

[00:19:10] Speaker 02:
Counsel, in opposing counsel's briefing, a lot of focus is on the Torres case.

[00:19:16] Speaker 01:
Yes, Your Honor.

[00:19:16] Speaker 02:
Do you want to respond to that or distinguish it?

[00:19:19] Speaker 01:
Yes, Your Honor.

[00:19:20] Speaker 01:
So in this court's 2023 Torres case, the petitioner Crispin Torres, the court found that if Giglio impairment weighs against a particular Douglas factor, there must still be substantial evidence to support that conclusion.

[00:19:37] Speaker 01:
In this case, giglio impairment was not considered by the deciding official under any particular Douglas factor.

[00:19:44] Speaker 01:
So in this court's previous case, it was Douglas factors 6 and 10.

[00:19:50] Speaker 01:
And in that previous case, the arbitrator before the board rejects comparator evidence, because those don't include a giglio impairment, which the arbitrator in that case said was a significant factor.

[00:20:05] Speaker 01:
I believe he actually said it was a critical factor weighing against the petitioner.

[00:20:11] Speaker 01:
So here we don't have anything like that.

[00:20:14] Speaker 01:
We don't have the administrative judge concluding that the giglio impairment significantly weighed against a particular factor.

[00:20:22] Speaker 01:
Instead, we see a very fulsome review, which is what this court asked for, a fulsome review of all the factors.

[00:20:29] Speaker 01:
And here we believe there is significant evidence

[00:20:32] Speaker 01:
under each of those factors as outlined both by the agency and by the board.

[00:20:39] Speaker 01:
Your honors, if there are no further questions, we respectfully ask that the judgment of the board be affirmed.

[00:20:45] Speaker 04:
Okay.

[00:20:46] Speaker 04:
Thank you.

[00:20:47] Speaker 04:
Mr. O'Donnell.

[00:20:56] Speaker 00:
Your Honor, just to briefly address a few of the points raised.

[00:21:00] Speaker 00:
One, opposing counsel mentioned that not all Douglas Factors have to be addressed by the MSPD in its review, and that's true.

[00:21:12] Speaker 00:
But what this court says in Malloy and what this court says in Torres is that the MSPD nevertheless has to address any significant factor relevant to the penalty determination.

[00:21:26] Speaker 00:
Moreover, as Judge Stoll

[00:21:29] Speaker 00:
was asking about the notoriety of the offense as a result of the police being called.

[00:21:33] Speaker 00:
I would like to call your attention, your honor's attention, to second comparator that I think is relevant here, which is referred to as comparator three in petitioner's briefing below.

[00:21:46] Speaker 00:
It's on appendix 380 to 387.

[00:21:51] Speaker 00:
In comparator three, a Customs and Border Protection officer was arrested and pled guilty to driving while under the influence

[00:22:00] Speaker 00:
He was charged with conduct on becoming an officer, misuse of position for having identified himself as a federal law enforcement officer for no official purpose, and failure to timely report his arrest.

[00:22:12] Speaker 00:
Agency proposed 45-day suspension, ultimately mitigating it to 21.

[00:22:17] Speaker 00:
Significantly, the officer there failed to report his arrest for nearly a month and a half, notwithstanding the fact he was obligated by agency policy to report within 24 hours.

[00:22:29] Speaker 00:
As with the other comparative case that I described before, I think there's also no question that if you look at the underlying facts there, there's also elements of dishonesty and deceit that make it similar to the case here, in that when you have a law enforcement officer obligated to report his arrest, his reason for not doing it is yet an opportunity, Your Honor.

[00:22:49] Speaker 04:
OK.

[00:22:49] Speaker 04:
Thank you.

[00:22:49] Speaker 04:
Any questions on the case that's submitted?

[00:22:51] Speaker 04:
That concludes our session for this morning.