[00:00:01] Speaker 04: Case number 14-1155, Anthony W. Perry, Petitioner versus Merit Systems Protection Board. [00:00:08] Speaker 04: Ms. [00:00:08] Speaker 04: Tabelson for the amicus puri, Mr. Fung for the respondent. [00:00:16] Speaker 01: May it please the court, Rebecca Tabelson, appointed amicus supporting petitioner. [00:00:19] Speaker 01: I'd like to reserve two minutes for rebuttal. [00:00:22] Speaker 01: Just a few years ago, the unanimous Supreme Court explained that the Civil Service Reform Act, quote, routes in crystalline fashion all mixed cases from the MSPB to the district court. [00:00:33] Speaker 01: The act creates no exceptions to that rule based on how the board disposes of an employee's mixed case appeal. [00:00:39] Speaker 01: If the board dismisses a mixed case on the merits, it goes to the district court. [00:00:43] Speaker 02: You've read the oral argument in that case, I take it. [00:00:46] Speaker 01: I have, Your Honor. [00:00:47] Speaker 02: It seemed to me that at least for two of the justices and the one who wrote for the court, it did make a difference that they weren't dealing with the jurisdictional issue that this case arises, right? [00:00:58] Speaker 02: That was an important part of the argument. [00:01:02] Speaker 01: I agree, Your Honor, that Klechner appropriately addressed only the issue before the court, which was a procedural dismissal. [00:01:07] Speaker 02: Well, it was more than that. [00:01:08] Speaker 02: I mean, we don't want to read too much into the questions, but it seemed to be more than just that that was the issue before the court. [00:01:17] Speaker 02: There seemed to be that there [00:01:19] Speaker 02: distinction in the arguments between the jurisdictional issue and the procedural issue and the jurisdictional issue might have more of a statutory hook, but they didn't reach it. [00:01:28] Speaker 02: It's clear, right, from the argument that Kleckner, or Kleckner, how you pronounce it, was not reaching this issue. [00:01:36] Speaker 01: Would you agree with that? [00:01:38] Speaker 01: Your Honor, yes. [00:01:39] Speaker 01: Justice Kagan's questions at oral argument do indicate she did ask the Petitioner's Council [00:01:43] Speaker 01: If I disagree with you about jurisdictional dismissals, can I still rule in your favor? [00:01:47] Speaker 01: And he said that they could. [00:01:48] Speaker 01: But notably, both of the parties in Klechner agreed that it made no sense to distinguish between procedural and jurisdictional dismissals. [00:01:55] Speaker 04: More importantly though, if Klechner didn't decide the issue, then aren't we bound by our prior decision in Powell? [00:02:01] Speaker 01: Powell did concern a mixed case dismissed on jurisdictional grounds, but Powell has been abrogated by Klechner. [00:02:06] Speaker 04: How so? [00:02:07] Speaker 01: It's because the reasoning in Klechner is inconsistent with the reasoning of Powell. [00:02:13] Speaker 01: Powell followed Ballantine, which is the Federal Circuit's sort of guiding principle. [00:02:17] Speaker 02: Has any other Court of Appeals accepted your invitation to push down this last vestige of the threshold merits distinction? [00:02:26] Speaker 02: Anyone else done that? [00:02:27] Speaker 01: No other court of appeals has considered it other than the federal. [00:02:30] Speaker 02: You want us to be the first, right? [00:02:32] Speaker 01: In addition to Judge Dyke's dissent in Conforto, yes, Your Honor. [00:02:35] Speaker 02: He was in the minority there, right? [00:02:38] Speaker 01: Yes, that's true. [00:02:39] Speaker 01: This is the second court to consider the issue. [00:02:40] Speaker 01: There is no other circuit court precedent on point since Klechner. [00:02:45] Speaker 04: I'm sorry, correct me if I'm wrong, did the 10th Circuit in harm, did they decide procedure or jurisdiction could be different before Klechner? [00:02:55] Speaker 01: Yes, correct. [00:02:56] Speaker 01: The 10th Circuit in Harms and the 2nd Circuit in Downey. [00:02:59] Speaker 01: But Your Honor, for the same reason that I think Conforto was wrong under Kleckner, those opinions were abrogated by Kleckner. [00:03:05] Speaker 01: And in fact, the statutory interpretation that the government advanced in Kleckner, which was the interpretation the Federal Circuit had adopted in Valentine, would have covered both procedural and jurisdictional dismissals, [00:03:17] Speaker 01: and sent them both to the Federal Circuit, and the Supreme Court unequivocally rejected that. [00:03:21] Speaker 00: So I'm familiar with the statutory interpretation advanced by the government in Klechner. [00:03:24] Speaker 01: Yes, Your Honor. [00:03:25] Speaker 00: I remember listening to argument in Klechner. [00:03:29] Speaker 00: In order for us to conclude that Klechner affords a basis to get out from under Powell, you'd have to show that Klechner necessarily dealt with jurisdiction, even though by terms, it didn't deal with jurisdiction. [00:03:45] Speaker 01: I disagree, Your Honor. [00:03:46] Speaker 01: I think that if the reasoning of Plekner is inconsistent with the reasoning of Powell, then this Court and this panel has the power to recognize that Powell is no longer good law. [00:03:55] Speaker 01: This Court is not often reversed by the Supreme Court, but there are examples of panels of this Court holding that a prior panel opinion is no longer good law [00:04:03] Speaker 01: in light of an intervening Supreme Court decision with different reasoning. [00:04:06] Speaker 00: Two examples are... Let me ask you this another way then. [00:04:10] Speaker 00: If we thought there were a basis for distinguishing between jurisdiction and procedure, then we'd be hard pressed to say that Klechner cast doubt on Powell to an extent that we'd overrule one. [00:04:22] Speaker 00: We'd deem one of our precedents no longer good. [00:04:25] Speaker 01: If you agree with the government's approach here, [00:04:28] Speaker 01: then you could simply follow it without discussing Powell one way or the other. [00:04:33] Speaker 00: Right, but that assumes that Powell doesn't even exist, because as far as I can tell the government, I don't even have Powell cited in the government's brief. [00:04:39] Speaker 00: Correct. [00:04:40] Speaker 00: But we're starting with the foundation that we have Powell as a decision on our books. [00:04:44] Speaker 00: That's a holding that binds us, unless something comes along and tells us that Powell is no longer a good law. [00:04:49] Speaker 01: Yes, and Your Honor, I believe that Klechner does exactly that. [00:04:53] Speaker 02: But none of the cases cited in Klechner dealt with jurisdiction. [00:04:56] Speaker 02: They were all the procedural. [00:04:58] Speaker 02: They were very careful about that. [00:05:01] Speaker 00: That's true. [00:05:01] Speaker 02: Maybe you assume some bravery on the part of, well, maybe you have some bravery here, but you got a chicken here. [00:05:09] Speaker 02: You've mentioned that rarely does the Supreme Court overturn this, but they do. [00:05:14] Speaker 02: And I have scars to show it. [00:05:16] Speaker 02: So it seems to me you're asking us to do something rather extraordinary with no hint from the Supreme Court that the, and we don't, by the way, we don't act on hints from the Supreme Court, right? [00:05:29] Speaker 02: we act on direction from the Supreme Court. [00:05:30] Speaker 02: For example, I mean, it would take an iron's footnote for us to do this, right? [00:05:34] Speaker 01: Well, Your Honor, I do think an iron's footnote could be appropriate in this situation, but it's certainly not required. [00:05:38] Speaker 01: This panel has the undisputed authority to find a prior panel precedent invalid in light of intervening Supreme Court precedent. [00:05:45] Speaker 01: And, you know, two cases in which the Court has done so, based on the reasoning undermining, not the direct holding of the intervening Supreme Court, [00:05:52] Speaker 01: is Kaufman v. Anglo-American School of Sophia, 28 F. [00:05:56] Speaker 01: 3rd, 1223, and Koritsky v. Herman, 178 F. [00:06:00] Speaker 01: 3rd, 1315. [00:06:02] Speaker 01: Those are both panel opinions, recognizing that the reasoning, although not per se the direct holding of an intervening Supreme Court opinion, makes invalid a prior panel opinion. [00:06:12] Speaker 04: How clear was it in those cases? [00:06:16] Speaker 04: If it's debatable, [00:06:19] Speaker 04: reasonable jurors as to whether the Supreme Court's prior decision addressed jurisdiction. [00:06:27] Speaker 04: Then can we say it's abrogated? [00:06:30] Speaker 01: I believe you can, Your Honor. [00:06:31] Speaker 01: One of those cases, Kaufman, I believe, actually has a dissent, arguing that the Supreme Court's intervening opinion did not directly abrogate the prior panel decision. [00:06:38] Speaker 04: No, I'm talking about the interpretive question. [00:06:40] Speaker 04: In Conforto, we have a dissent, and then two other judges who read the Supreme Court decision as reserving, leaving, and not effecting this jurisdictional inquiry. [00:06:52] Speaker 04: because you're interpreting a different statutory provision. [00:06:55] Speaker 04: So what do I do with the fact that reasonable minds can debate this? [00:07:00] Speaker 01: Well, that's true, Your Honor, but notably in Conforto, the Federal Circuit had to redo entirely its interpretation of 7702 because the interpretation that the Federal Circuit's prior precedent had used in Valentine was squarely and unequivocally rejected by Kleffner. [00:07:15] Speaker 04: you're fighting about different, it was judicially reviewable action that was where all the action was in Klockner, and here we're simply talking about whether something can be appealed, is appealable to the board, and that it's just different statutory tax, and jurisdiction is different than procedure. [00:07:35] Speaker 01: Well, Your Honor, on that point, the difference between jurisdiction and procedure in the context of the MSPB's decisions is actually somewhat elliptical. [00:07:42] Speaker 01: The government described it in Kleckner as, quote, difficult and unpredictable. [00:07:45] Speaker 01: And in the city of Arlington just a year later, the Supreme Court explained that it's usually a waste of judicial mental energy to attempt to distinguish between jurisdictional and non-jurisdictional rules in the context of an administrative action. [00:07:57] Speaker 00: So can I ask you this, though, on the distinction between jurisdiction and procedure? [00:08:00] Speaker 00: So suppose I thought, [00:08:02] Speaker 00: there was a plausible statutory textual basis for distinguishing between timeliness slash procedural rulings and jurisdictional rulings that mean that the MSPB could have never taken the case in the first place. [00:08:16] Speaker 00: If I thought that, then, and I think you're gonna probably tell me that there isn't one, but if I thought that, then it seems to me that I'm bound by power. [00:08:24] Speaker 01: Well, Your Honor, as an amicus of the court, I can tell you that if you look only at 7702A1A, ignore the rest of section 7702 [00:08:33] Speaker 01: and ignore any procedural implications, then there is a plausible statutory interpretation, and that's the one the government has advanced. [00:08:39] Speaker 00: No, I have a different one. [00:08:40] Speaker 00: Can I suggest a different one? [00:08:42] Speaker 00: Yes, please. [00:08:42] Speaker 00: Maybe it's either less plausible or more plausible. [00:08:45] Speaker 00: You can tell me. [00:08:46] Speaker 00: But A1A talks about actions that may be appealed. [00:08:53] Speaker 00: Right, so that's the key text. [00:08:54] Speaker 01: Yes. [00:08:55] Speaker 00: And then if you're looking at, since this talks about an action that may be appealed, it seems to me that the time for judging whether something can be appealed is at the time of the action. [00:09:04] Speaker 00: And the difference between timeliness and jurisdictional rulings is that at the time of the action, the jurisdictional one could never be appealed, because by hypothesis, it was voluntary. [00:09:15] Speaker 00: It could never be appealed. [00:09:16] Speaker 00: But at the time of the action, it can be appealed as against procedures, just as something happens later. [00:09:22] Speaker 00: Somebody fails to file on time, or somebody doesn't wait long enough to file, but it actually may be appealed. [00:09:29] Speaker 00: So if you look at it at the time of the action, it seems to me that the statute actually [00:09:33] Speaker 00: supports a distinction between timeliness slash procedural rulings and jurisdictional rulings. [00:09:39] Speaker 00: Now, that's not the argument that the government makes. [00:09:41] Speaker 00: They make a different textual one, and we can argue about the bona fides of that one. [00:09:46] Speaker 00: But as to this one, what do you think about that? [00:09:48] Speaker 01: Well, Your Honor, if I'm understanding you correctly, I mean, we're focusing on the word action here. [00:09:52] Speaker 01: And to a certain extent, the government does allude to that in its brief, but I agree, it's a different argument. [00:09:56] Speaker 01: One of the problems with that approach is that the board's jurisdictional dismissals do not necessarily concern the type of action that the employee has actually suffered. [00:10:04] Speaker 01: The board sometimes dismisses for court jurisdictional grounds because of timeliness issues or because, for example, Jones versus MSPB, a 2014 federal circuit case, the employee has failed to raise a specific discrimination claim in a prior negotiated grievance procedure. [00:10:18] Speaker 01: So even under that approach, [00:10:20] Speaker 01: the statutory interpretation doesn't quite line up with what the government wants to do here. [00:10:24] Speaker 00: But I guess I could at least reach the following conclusion based on that approach, which is that timeliness rulings, which is what Klechner was about and what Ballantyne was about and a lot of the procedural cases about are different because timeliness turns on something that happens after the action. [00:10:38] Speaker 00: Whereas for things that are already baked in as at the time of the action, they may not be appealed. [00:10:44] Speaker 00: Well, Your Honor, those things are often in dispute, and I think what... Sure, so you don't know the answer to it until you go through the process to determine, for example, in this case, whether it in fact was voluntary or involuntary. [00:10:54] Speaker 00: But the way we look at these things is that that's just figuring out what in fact was the state of play at the time the action was taken. [00:11:01] Speaker 01: Well, Your Honor, I think the problem, if you don't know the answer at the time that the employee files the case, is that the rest of 7702 becomes difficult to understand. [00:11:08] Speaker 01: And you can see this. [00:11:09] Speaker 01: I realize I'm out of time if I could just finish answering. [00:11:12] Speaker 01: If you can see this best at 7702E, which gives the employee the immediate right of appeal to the district court if the board does absolutely nothing with his next case within 120 days. [00:11:23] Speaker 01: So what 7702E reflects is that [00:11:27] Speaker 01: whether or not an action is mixed and satisfies 7702A must be ascertainable at the time of filing based entirely on the employee's allegations without regard to how the MSPB would ultimately adjudicate those allegations. [00:11:40] Speaker 01: Congress, in other words, sent to the district court mixed cases based on whether the employee had alleged the elements of 7702A. [00:11:49] Speaker 04: Judge, in a Boston's reading, I would have thought you would have said that at the time of the action, your client thought this was, in fact, a qualifying action, because at the time he submitted his papers, he felt coerced to do so. [00:12:06] Speaker 01: Certainly. [00:12:06] Speaker 01: I completely agree with that statement, Judge Millett. [00:12:08] Speaker 01: And perhaps I wish I had said that. [00:12:10] Speaker 00: No, but it turns out to be wrong. [00:12:12] Speaker 01: Well. [00:12:13] Speaker 00: He might have thought it. [00:12:15] Speaker 00: But that's the purpose of the appeal, is to figure out whether that's right. [00:12:18] Speaker 00: And it turns out it's wrong. [00:12:19] Speaker 00: No? [00:12:20] Speaker 00: Am I missing something? [00:12:21] Speaker 01: No, no. [00:12:21] Speaker 01: It turns out that the board disagreed with him. [00:12:23] Speaker 01: And of course, Mr. Perry has a colorable claim that that was incorrect. [00:12:27] Speaker 01: But my argument is that regardless of what the board ultimately thinks of his allegation, we must be able to determine whether 7702A is satisfied based on that allegation in order for the rest of 7702 to make sense. [00:12:40] Speaker 04: Do we? [00:12:42] Speaker 04: I don't know from courts, but I don't know from the board. [00:12:45] Speaker 04: Normally, you determine [00:12:46] Speaker 04: jurisdiction of the time and action is filed. [00:12:53] Speaker 04: In doing that, are we supposed to take, I have no idea, the facts in the, I haven't been able to find the answer, the facts in the light most favorable to the plaintiff to see whether we have jurisdiction or [00:13:07] Speaker 04: Is it your position that at the time he filed his action, taking the light facts in the light was favorable to him, his allegations, the action was one that was available to the board? [00:13:21] Speaker 01: Well, Your Honor, the board has, as you sort of suggested, a somewhat different procedure for assessing its own jurisdiction in the federal courts. [00:13:27] Speaker 01: First, it assesses whether the petitioner has made, quote, a non-frivolous allegation that could support jurisdiction. [00:13:33] Speaker 01: And if it finds that, then it actually conducts an entire evidentiary hearing at which the employee has the burden to prove by preponderance of the evidence that the board does have jurisdiction over his case. [00:13:44] Speaker 04: Courts do that sometimes. [00:13:45] Speaker 01: Yes, a preliminary jurisdictional hearing, for example. [00:13:47] Speaker 04: But in those hearings, do you not take the facts in the light most favorable, too? [00:13:51] Speaker 04: That's what I'm trying to figure out, is the hard cases are like this one, are constructive discharge, where jurisdiction and the merits are intertwined. [00:14:01] Speaker 04: They're very much, notwithstanding Judge Bryson's attempt to separate them out, they're very much the same inquiry. [00:14:11] Speaker 04: And so that's what I'm trying to figure out, [00:14:13] Speaker 04: how or when that determination should be made and do you do it in the facts in the light most favorable to the plaintiff or not? [00:14:22] Speaker 01: The board on my understanding does not take the fact necessarily in the light most favorable to the petitioner. [00:14:27] Speaker 01: The petitioner has the burden of proving jurisdiction and I have not seen any reference in the MSPB's adjudications to putting that sort of thumb on the scale. [00:14:37] Speaker 04: Normally the burden of proof [00:14:43] Speaker 04: in light of the facts taken in the light most favorable to them, and then to put a complete revisiting in it and go through the entire hearing and let the end of the hearing go. [00:14:52] Speaker 04: No constructive discharge for our application of Title VII principles, therefore no jurisdiction, it seems. [00:15:01] Speaker 01: Yeah, I mean, I agree that it seems odd, and I agree with your suggestion that Judge Bryson's attempt to distinguish this in the Comforto majority was incorrect. [00:15:09] Speaker 01: It's inevitable, and as the Federal Circuit has recognized, that the jurisdiction and the merits will be, quote, inextricably intertwined. [00:15:16] Speaker 01: I think that's a quote from a Federal Circuit opinion. [00:15:18] Speaker 02: They certainly were in this case, right? [00:15:20] Speaker 02: I mean, the jurisdictional inquiry sure looks like a merits inquiry. [00:15:22] Speaker 01: It does. [00:15:23] Speaker 01: And in a way, that's why it's so bizarre to send quote, jurisdictional dismissals to the federal circuit while procedural ones go to the district court. [00:15:31] Speaker 00: Well, in the context of this type of jurisdictional issue, that's not true of all jurisdictional issues. [00:15:35] Speaker 00: It just so happens that this one, there's overlap. [00:15:37] Speaker 01: Well, Your Honor, that's true, but this will be true of the majority of constructive adverse action jurisdictional dismissals, excuse me, jurisdictional dismissals, because the question there is, is the alleged action actually voluntary? [00:15:51] Speaker 01: And in order to answer that question, the MSPB has to look at the circumstances that the employee claims made the action actually involuntary, even though it might look voluntary. [00:16:01] Speaker 00: But there might be all sorts of other jurisdictional issues that have nothing to do with voluntariness or involuntariness. [00:16:05] Speaker 01: That's true, Your Honor. [00:16:06] Speaker 01: They have nothing to do with whether it's an action at all, I suppose. [00:16:10] Speaker 01: And in a sense, that's a different problem with the government's argument because, again, the board's jurisdictional dismissals [00:16:16] Speaker 01: that that universe of cases does not really line up with the action language necessarily in 7702A1A. [00:16:24] Speaker 01: Again, there are jurisdictional dismissals because, say, you fail to raise this issue in a prior procedure. [00:16:29] Speaker 01: And that is not going to have the merits intertwined in the issue, but instead it has the issue of really having no link to the statutory text of 7702A1A. [00:16:37] Speaker 04: Is it that crazy to send jurisdiction to the Federal Circuit? [00:16:41] Speaker 04: Imagine your client had one [00:16:50] Speaker 01: In mixed cases, no, Your Honor. [00:16:53] Speaker 01: I mean, not all of them. [00:16:58] Speaker 04: I've got 7703D1. [00:17:03] Speaker 04: I will confess, it's a very complicated area. [00:17:05] Speaker 04: Now who knows what I'm missing. [00:17:07] Speaker 04: But that looks to me like all their appeals go, if the board attorney can tell you, would go to the Federal Circuit. [00:17:14] Speaker 04: So it's not so crazy to think that even in mixed cases, jurisdiction might be decided by the Federal Circuit. [00:17:22] Speaker 01: Well, Your Honor, I'm sure my friend from the government can speak more accurately than me to the entire universe of MSPB appeals, but my understanding here is that 7703B2 sends cases of discrimination subject to the provisions of 7702, says here, shall be filed under the civil rights statutes that are then listed, and all of those civil rights statutes [00:17:44] Speaker 01: provide for jurisdiction in the district court. [00:17:46] Speaker 02: What's the reason for that? [00:17:48] Speaker 02: What do you think the statutory purpose is in that sort of distinction between sending some to the federal circuit and the discrimination cases to the district court? [00:17:57] Speaker 02: What's the reason for that? [00:17:58] Speaker 01: The reason for that is that Congress wanted the district court to adjudicate, in the first instance, difficult claims of discrimination. [00:18:04] Speaker 01: And it makes sense, because the district court has the capability. [00:18:07] Speaker 02: You're saying they're really just looking for a trier of fact in the district court. [00:18:10] Speaker 01: Exactly. [00:18:10] Speaker 02: And they don't get that in the federal circuit. [00:18:12] Speaker 01: Exactly. [00:18:13] Speaker 01: And another problem with the government's argument here is that, if I may just continue, I realize I'm over time. [00:18:19] Speaker 02: No, as long as we keep asking questions, unfortunately, you have to stay up there. [00:18:25] Speaker 01: One other problem with the government's approach is that it could lead to bifurcated litigation in two different courts of those discrimination claims. [00:18:31] Speaker 01: And the reason for that is as follows. [00:18:33] Speaker 01: Under 29 CFR 1614.302, when the board dismisses a mixed case for lack of jurisdiction, [00:18:40] Speaker 01: those underlying discrimination claims do not simply die. [00:18:44] Speaker 01: Rather, they get routed back to the employing agency to get processed through the regular EEO procedures. [00:18:49] Speaker 01: When the employee reaches the end of the line in that process, he goes to the district court. [00:18:54] Speaker 01: Meanwhile, in the government's view, the employee should be appealing to the federal circuit, the MSPB's dismissal of his case for lack of jurisdiction. [00:19:01] Speaker 01: a dismissal that is often inextricably intertwined with the merits of his underlying discrimination claims. [00:19:06] Speaker 01: So what we have here is an employee, often pro se, like Mr. Perry is here, forced to litigate his case in multiple different forms at the same time. [00:19:14] Speaker 01: None of that can be right, and it violates the Supreme Court's repeated and recent admission. [00:19:19] Speaker 04: If that problem gets solved either way, if we say you go to the Federal Circuit, the problem is equally solved. [00:19:24] Speaker 01: Well, Your Honor, no, because he, under 29 CFR 1614.302, must pursue his underlying discrimination claims [00:19:31] Speaker 01: through the employing agency, the EO procedures, and then to the district court. [00:19:35] Speaker 03: Couldn't take it to the federal circuit? [00:19:37] Speaker 01: The federal circuit has jurisdiction only for the petition for review of the board's decision, the administrative law appeal. [00:19:44] Speaker 04: So in this case, had he filed with the federal circuit, they couldn't have looked at the discrimination issue? [00:19:49] Speaker 04: No, Your Honor. [00:19:49] Speaker 04: If they said, oh, the board is right, [00:19:52] Speaker 04: on the board is wrong on jurisdiction. [00:19:56] Speaker 01: They would just remand to the board. [00:19:57] Speaker 04: That's correct. [00:20:00] Speaker 01: By contrast, if he was able to go to the district court, then the district court could do all of those things. [00:20:05] Speaker 01: The district court can adjudicate, say, the Title VII claim to Novo, and it can also conduct a petition for review [00:20:10] Speaker 01: of the MSPB's decision, as this court described in the Barnes case, describing how this would work if it was all in the district court. [00:20:16] Speaker 00: Wait, so if, and in this case, if the board, if this goes to the Federal Circuit and the Federal Circuit overturns on the jurisdictional issue. [00:20:23] Speaker 01: Yes. [00:20:23] Speaker 00: What we're calling the jurisdictional, then it goes back to the board. [00:20:26] Speaker 00: And at that point, it can go to district court, though. [00:20:28] Speaker 01: depending on what the board does with it. [00:20:31] Speaker 01: That's true, but meanwhile, 29 CFR 1614 does not provide for tolling while the Federal Circuit adjudicates this issue. [00:20:38] Speaker 01: So, I'm not Mr. Perry's attorney, so I don't want to speak to what exactly he's going to do, but an employee in Mr. Perry's situation would, to diligently pursue his rights, have to go back to the agency at the same time, follow the EEO process, when that gets wrapped up, go to the district court, all while he's arguing in the Federal Circuit. [00:20:55] Speaker 01: That simply cannot be right, especially when you consider this in light of the Supreme Court's explanations that administrative simplicity is key to a jurisdictional statute like this one. [00:21:04] Speaker 00: Yeah, that's an admission we should take into account to the extent we can. [00:21:08] Speaker 00: That may be a lost cause in this regime. [00:21:11] Speaker 00: But can I get back to the line of answers you were giving to Judge Mallett's questions on jurisdiction? [00:21:16] Speaker 00: So it does seem odd that the way the board has conducted or configured the jurisdictional inquiry in this case [00:21:24] Speaker 00: doesn't give every benefit to the plaintiff. [00:21:26] Speaker 00: And there's things that need to be proved for jurisdictional purposes. [00:21:28] Speaker 00: And it goes beyond what we normally think of in jurisdiction, at least in the courts. [00:21:32] Speaker 00: But is there anything in the statute that prevents the board from just configuring jurisdiction in that way? [00:21:39] Speaker 01: In Garcia, the Federal Circuit in 2006 and bank actually considered the board's procedures for adjudicating jurisdiction in cases like this. [00:21:48] Speaker 01: And it basically, Garcia was not precisely on that question, but it basically approved the board's, it gave the board some leeway to promulgate regulations that define how it will adjudicate these jurisdictional appeals, and it sanctioned the procedures that I described earlier to Judge Millett, where you have that non-frivolous allegation standard, followed by a preponderance of the evidence standard to be carried at a hearing. [00:22:11] Speaker 00: So that does seem anomalous, but I don't, is there something in the law that prevents the board from configuring jurisdiction in a way that's just not unfamiliar to us in terms of the way jurisdiction is usually conducted? [00:22:22] Speaker 00: That just happens to be the way the board chose to do it. [00:22:25] Speaker 01: I believe, I cannot think of anything in the law right now that would prevent that. [00:22:30] Speaker 01: But the board has regulations, has promulgated regulations that say that the applicant, excuse me, the petitioner, the employee has the burden of proof at this stage. [00:22:39] Speaker 01: I'm not aware of any [00:22:41] Speaker 01: to change those regulations are challenges to them pending at the moment. [00:22:45] Speaker 01: Okay. [00:22:46] Speaker 04: On the question of transferring this case, is it true that we have the power to transfer when nobody, including the plaintiffs, even contends that there's a colorable argument that we ever had jurisdiction? [00:23:02] Speaker 04: Yes, Your Honor. [00:23:04] Speaker 04: Yes, Your Honor, this is an unusual case for that reason, but 28 USC 1631 not only provides the court with the authority to transfer, and it does not differentiate between cases in which [00:23:27] Speaker 01: there is a callable claim of this court's jurisdiction and ones which they're not. [00:23:31] Speaker 01: It also says that the court shall transfer if the interests of justice so require. [00:23:35] Speaker 01: I don't understand there to be any dispute about that in this case. [00:23:38] Speaker 01: That is to say, the government has asked it for transfer to the Federal Circuit, not for dismissal, and we have asked for transfer to the district court. [00:23:45] Speaker 01: But to the extent, Your Honor, is concerned about that, [00:23:48] Speaker 01: The interests of justice here plainly support transfer. [00:23:51] Speaker 01: There is no suggestion that Mr. Perry filed in this court out of bad faith or in an attempt to gain some kind of procedural advantage. [00:23:57] Speaker 01: To the contrary, this has just been a long detour for him before he's able to obtain relief on his substantial claims. [00:24:03] Speaker 01: He was simply confused by this maze. [00:24:06] Speaker 01: It's also true that he filed in this court at a time when it was timely to file here, timely to file in the federal circuit, and timely to file in the district court. [00:24:13] Speaker 01: And it's possible that if you were to dismiss, he would face a timeliness issue [00:24:17] Speaker 01: in an attempt to to re-file. [00:24:18] Speaker 04: In addition, you had a case like this where there was absolutely no colorable or plausible basis for our own jurisdiction. [00:24:31] Speaker 01: I do not have a case. [00:24:32] Speaker 04: Exactly. [00:24:35] Speaker 01: And the statute of 20 USC 1630, the language of 20 USC 1631 does not draw any such distinction. [00:24:41] Speaker 00: I mean, I suppose you could say that in some, if it's truly frivolous and knowingly frivolous, then you could say it wouldn't be in the interest of justice to transfer it. [00:24:49] Speaker 00: So maybe the interest of justice standard sort of accounts for frivolousness situations by saying that, well, then the court is free to say that it's not in the interest of justice. [00:24:58] Speaker 00: But I take it your argument would be, this isn't that kind of case because there's actually at least some basis for enough of a basis for understanding why a pro se litigant would have filed here that interest of justice would still support transfer. [00:25:10] Speaker 01: That's true, Your Honor. [00:25:11] Speaker 01: And then furthermore, his underlying challenge to the board's decision here is also not frivolous. [00:25:18] Speaker 01: He has a callable claim that the board here completely failed to even mention his central argument below, and under black letter principles of administrative law, that's just totally wrong. [00:25:27] Speaker 01: No matter what you think about the record as a whole, the board cannot just ignore Mr. Perry's central allegations here, and that is what it did. [00:25:35] Speaker 01: Mr. Perry was an employee of the government for almost 30 years. [00:25:39] Speaker 01: He's just trying to obtain a hearing here in the district court, in the board, and he's been thwarted at every turn by this complicated jurisdictional scheme and now by the government's attempts to further complicate it. [00:25:51] Speaker 01: He wants a hearing in the district court, he wants a hearing in the board, and that's all he asks for. [00:25:54] Speaker 02: Great. [00:25:56] Speaker 02: Thank you very much. [00:25:56] Speaker 01: Thank you, Your Honor. [00:25:57] Speaker 02: We'll hear from the board's attorney. [00:26:19] Speaker 05: May it please the Court, Stephen Fung for the Mayor's Assistance Protection Board. [00:26:23] Speaker 05: This case should be transferred to the Federal Circuit because neither this Court nor the District Court have jurisdiction to hear the Board's, or to review the Board's decision. [00:26:32] Speaker 04: Can you just answer quickly my question? [00:26:34] Speaker 04: I'm sure I probably just misread something, but if Mr. Perry had won, where could the government [00:26:40] Speaker 04: government take the appeal? [00:26:43] Speaker 04: Would they have to go to district, say they won, they said there is jurisdiction for the board, and then address the discrimination claim, and find discrimination under appeal, what would happen? [00:26:53] Speaker 04: Where would you go? [00:26:54] Speaker 05: Actually, the relevant section for there is actually 7703A, with a one, which states that only the employee or the appellant can appeal to a decision of the board if they're adversely affected by a decision of the board. [00:27:07] Speaker 05: The government does not have the right in just a standard [00:27:10] Speaker 05: or decision saying that the employee wins to appeal that decision to the Federal Circuit. [00:27:15] Speaker 04: I thought the OPM or something they found it was an important question for administration of the statute could take such an appeal. [00:27:23] Speaker 04: Is that not right? [00:27:24] Speaker 05: Yes OPM can but no other government agency could so it would have to be OPM's decision based on... So if OPM wanted to appeal this case because they thought the board may [00:27:35] Speaker 04: They would take it to the Federal Circuit, that's correct. [00:27:39] Speaker 03: They can't go to district court? [00:27:40] Speaker 05: No. [00:27:42] Speaker 04: And what if they thought, in addition, the board had made a terrible misinterpretation of the Age Discrimination and Employment Act on the merits, too, and wanted to appeal both? [00:27:53] Speaker 04: Or could they not? [00:27:55] Speaker 05: Well, OPM's decision to appeal would be because there was an error in interpretation of civil service law, as it felt there would be. [00:28:05] Speaker 05: The original purpose of the Federal Circuit and of the Civil Service Reform Act in the first place was to actually promote uniformity and consistency in the jurisdiction of the board's decisions along with other agencies within the Federal Circuit's jurisdiction. [00:28:20] Speaker 05: And so in order to promote that sense of uniformity, those appeals and any appeal about civil service law or any other questions such as the board's jurisdiction should go to the Federal Circuit. [00:28:33] Speaker 04: And so I'm trying to clarify. [00:28:35] Speaker 04: So OPM could clearly disagree with the jurisdictional ruling in Perry's favor by the board and take back to the Federal Circuit. [00:28:42] Speaker 04: Could OPM ever appeal the board's discrimination decision? [00:28:48] Speaker 04: Would that standard that has an effect, I forget what the Secretary said, an important effect on the administration of the civil service laws, could that ever happen based on an interpretation of [00:29:00] Speaker 04: how discrimination statute Title VII or age discrimination interacts with federal employees? [00:29:07] Speaker 04: Or could they just not appeal that? [00:29:08] Speaker 04: They could only appeal the jurisdictional question. [00:29:13] Speaker 05: I think based on 7703D1, which gives it the authority to interpret civil service law, I do not believe the discrimination laws will be covered within that. [00:29:23] Speaker 05: And I think the point of the statute is to give OPM the right to question the board's interpretation of civil service law, and all civil service law was meant to be interpreted at the Federal Circuit. [00:29:34] Speaker 05: So I don't believe the Federal Circuit. [00:29:36] Speaker 04: By the way, the jurisdictional question [00:29:39] Speaker 04: Under their theory, it goes to a different place depending on who wins before the board. [00:29:45] Speaker 04: And under your theory, they should both vote. [00:29:51] Speaker 05: In a sense, but what's actually missing from that is that any determination of the board in which jurisdiction is found in a constructive action, such as a constructive removal, that appellant is actually automatically going to win that appeal at the board, usually for lack of due process, and therefore they would not be adversely affected by a decision of the board and would get whatever remedy they were seeking initially. [00:30:16] Speaker 04: I'm sorry, I didn't understand that. [00:30:18] Speaker 05: I didn't follow that. [00:30:19] Speaker 05: In a constructive action appeal, such as somebody... Constructive discharge is what you're talking about. [00:30:23] Speaker 05: Yeah, constructive discharge. [00:30:25] Speaker 05: If the appellant is alleging that they were forced to quit due to some improper agency action, [00:30:34] Speaker 05: then they would appeal that to the board. [00:30:35] Speaker 05: And if the board found that, in fact, they were forced to quit for whatever reason, they would be adjudicated as a removal. [00:30:42] Speaker 05: Under Section 7513, they are guaranteed certain procedures for any removal. [00:30:47] Speaker 05: And if they are found to have quit, they will not have received those procedures, and there will automatically be a due process violation, and the appellant will have won. [00:30:56] Speaker 05: And so they will not actually be agreed by the board's decision and not have a right to appeal. [00:31:00] Speaker 05: So in those circumstances only, they actually would not even receive a right to a district court review because they will have one receive the remedies they're seeking. [00:31:11] Speaker 00: Even if they never raise a due process claim? [00:31:13] Speaker 00: So they don't raise the due process claim at all. [00:31:17] Speaker 00: They raise some other discrimination claim. [00:31:19] Speaker 05: The board can find a due process violation with or without the appellant raising it. [00:31:23] Speaker 04: Usually the nature of constructive discharge is that the boss isn't ever gonna say, here's your pink slip, here's your notice of your procedure, they're gonna be forced out, and so inherently there's gonna be an absence of the ordinary notice and process. [00:31:35] Speaker 05: Yes, in the typical constructive resignation claim, an appellant or an employee is just gonna feel they have to quit because of some situation and then will not have received the due process. [00:31:47] Speaker 04: It would be fine if there was only one issue, but you could have multiple issues before the board. [00:31:51] Speaker 04: They could have a disparate treatment, disparate impact, hostile work environment. [00:31:58] Speaker 04: And if they said, you know, hostile work environment was a constructive discharge, but I also think there was a separate instance of [00:32:09] Speaker 04: failure to promote me three years earlier based on gender discrimination and lost that one. [00:32:14] Speaker 04: So that yes, you were forced out in 2005, you went on that claim under constructive discharge, but I'm denying your claim that two years earlier you should have been promoted and that was a product of gender discrimination. [00:32:30] Speaker 04: then there is still going to be an interest in going to district court on at least the former claim. [00:32:36] Speaker 05: As to that specific example, there wouldn't be because a failure to promote is actually not within the board's jurisdiction. [00:32:41] Speaker 05: For a reduction in pay. [00:32:42] Speaker 05: Yeah, reduction in pay. [00:32:43] Speaker 05: In that instance, there may be a right to go to the district court on that individual claim alone because that claim would probably be dismissed actually for timeliness. [00:32:55] Speaker 05: And under Klopner, that claim would go straight to the district court. [00:32:58] Speaker 05: But the other claim regarding [00:33:00] Speaker 05: the constructive discharge, it would not be a decision of the board from which they were adversely affected. [00:33:08] Speaker 04: And what would happen if someone, if there was a dismissal, and it wasn't clear if the grounds for dismissal, like the failure to raise something in an earlier arbitration, really was jurisdictional or not. [00:33:20] Speaker 04: The employee says no, that's just a procedural [00:33:25] Speaker 04: to go through agency arbitration or something. [00:33:28] Speaker 04: And the agency says, no, no, no. [00:33:34] Speaker 04: Or the board says, no, we think that's actually jurisdictional. [00:33:37] Speaker 04: You have fights about what's jurisdictional. [00:33:39] Speaker 04: Courts do it all the time. [00:33:40] Speaker 04: Who should decide? [00:33:41] Speaker 04: What would happen then? [00:33:42] Speaker 04: They say it's procedural, so we get to go to Klockner. [00:33:45] Speaker 04: You say, no, no, it's jurisdictional. [00:33:47] Speaker 04: You should go to the Federal Circuit. [00:33:49] Speaker 05: Well, the board's jurisdiction is actually set by statute. [00:33:52] Speaker 05: And so if a claim such as that where maybe they went to the wrong forum first, elected the wrong remedy, or something along those lines basically prevented them from having jurisdiction. [00:34:04] Speaker 04: This thing that says it applies to termination, but not a termination on national security grounds. [00:34:10] Speaker 04: So they go, you know, or. [00:34:13] Speaker 04: or they say there was a wrong procedure for determining the national security status. [00:34:18] Speaker 04: You're going to say, no, no, that's not feelable because it was a national security termination. [00:34:22] Speaker 04: They're going to go even follow the procedures for deciding whether I was a national security risk. [00:34:27] Speaker 04: That's a procedural problem, not a jurisdictional problem. [00:34:30] Speaker 05: It becomes a jurisdictional problem because under 7702A1A, the only action which could be appealed to the district court, regardless of any procedure originally taking place at the agency level, are actions which may be appealed to the board. [00:34:50] Speaker 05: So if there is a problem where the type of removal, regardless of procedure, is not one that may be appealed, such as a national security removal, that's an action which specifically cannot or may not be appealed to the board, and therefore there is no jurisdiction, and it must be reviewed at the Federal Circuit. [00:35:08] Speaker 03: I was curious as to why you didn't argue Powell at all in your brief. [00:35:11] Speaker 03: Is there something missing in reading that? [00:35:14] Speaker 05: uh... basically because the statute we felt was clear and and clocking itself was clear clocking excluded jurisdictional dismissals from uh... this decision so there really is no need to go further than that but if you're arguing to a court of appeals wouldn't you really a lot of times start with the fact that the court of appeals has a decision on point and that it would take something to overcome that [00:35:38] Speaker 05: Yes, Your Honor. [00:35:38] Speaker 05: And frankly, we can admit we just didn't feel it was necessary at the time based on Klackner. [00:35:45] Speaker 05: I mean, based on the argument here, I can say that it certainly seems relevant, yes. [00:35:51] Speaker 00: And is the argument that you're making, does it stand at least in substantial tension with the argument that the government was making in Klackner? [00:36:00] Speaker 00: Because the government was arguing in Klackner, based on some excerpts we've seen from the briefs and whatnot, that there is no difference between procedure and jurisdiction. [00:36:08] Speaker 05: The government was arguing in Cochrane that there was no difference between them based on the Federal Circuit's ruling in Ballantyne from [00:36:17] Speaker 05: 30 years ago now. [00:36:18] Speaker 05: We're arguing based actually along the lines of what the court found in Klockner, which was it defined a mixed case as only involving actions serious enough to appeal to appeal to the board. [00:36:30] Speaker 05: The government argued in Klockner that it should stay together along the lines of Ballantyne, assuming that both should go to the federal circuit. [00:36:37] Speaker 05: But the government also refused to concede in Klockner that [00:36:42] Speaker 05: had the court, as it did eventually, rule that procedural dismissal should go to the district court, that jurisdictional dismissal should follow it. [00:36:53] Speaker 04: Is it true that ordinarily in determining jurisdiction we take the facts in the light most favorable to the plaintiff, while they have the burden, we credit their allegations of fact? [00:37:10] Speaker 05: Along those lines, a formula that actually does exist at the board in terms of the non-frivolous allegation standard, what is typically construed as viewing the facts from the light most favorable to plaintiff in the 12b6 standard, exists in a sense in the non-frivolous standard by [00:37:30] Speaker 05: by defining a non-frivolous allegation as one that, if proven true, would establish the facts or would establish what was alleged. [00:37:38] Speaker 05: And that is what's necessary to get a jurisdiction. [00:37:40] Speaker 02: But the allegation is taken at face value at that point? [00:37:43] Speaker 02: Yes. [00:37:43] Speaker 05: And if it's taken at face value, and if it is an allegation that, if proven true, would prove jurisdiction, then a jurisdictional hearing isn't allowed for the appellant. [00:37:55] Speaker 04: Well, I know there's this whole non-frivolous, and then you get the hearing, and then we decide jurisdiction. [00:38:00] Speaker 04: out that was all after Congress wrote the statute. [00:38:04] Speaker 04: And my question is, with Congress, when it wrote a statute that turned upon the nature of the action for which review is sought, and you have these cases where jurisdiction and the merits are more than the same, [00:38:19] Speaker 04: Would Congress have understood, you have these two rounds that you do in procedure, would Congress have thought the categorization of the action would turn upon taking the facts in the light most favorable to the plaintiff or petitioner? [00:38:37] Speaker 04: that it states the type of action that is reviewable by the board. [00:38:43] Speaker 04: And that could be enough for the statutory jurisdiction in our statutory interpretation question. [00:38:48] Speaker 04: Could it not? [00:38:50] Speaker 05: But the issue is that resignation is actually not something that's within the jurisdiction of the board. [00:38:56] Speaker 05: Removal is. [00:38:58] Speaker 04: That's right. [00:38:59] Speaker 04: With the whole case, was it a resignation or was it a removal? [00:39:02] Speaker 04: So in itself, do we think Congress is thinking [00:39:05] Speaker 04: Well, we won't know if you have jurisdiction until you've had your entire trial, or if Congress have thought that this was going to be an upfront determination because prong B is based on allegations. [00:39:17] Speaker 04: You decide that early on. [00:39:19] Speaker 04: And so wouldn't prong A equally be determined at the time the case is filed with the board? [00:39:26] Speaker 05: I actually disagree with that, Your Honor, because the word alleges is only in prong B, and it's not in prong A. And by using the word... Oh, I understand that. [00:39:34] Speaker 04: They can't just allege jurisdiction. [00:39:35] Speaker 04: They can't say, I allege that you have jurisdiction over my failure to get a bonus last year. [00:39:40] Speaker 04: That wouldn't be sufficient. [00:39:42] Speaker 04: But if taking the facts in the light most favorable, the facts only in the light most favorable to the petitioner, then they have identified a substantive action [00:39:54] Speaker 04: that falls within the statutory list of things that are reviewable, and that would be A. So that's the difference between the allegation language. [00:40:01] Speaker 04: It's just a question of, do Congress want the prong A determination to be made at the same time the prong B determination is being made? [00:40:11] Speaker 05: I can't speak to Congress's intent as to whether they construed them to be, or whether they thought they would be determined at the same time, but what I can say is that, like I said before, a resignation itself is not an appealable action, and it's the board's own precedent and the Federal Circuit's precedent, and I believe the Court acclaims before it, that allowed resignations to be construed as removals under certain circumstances. [00:40:34] Speaker 05: But until that resignation becomes established as an involuntary resignation, [00:40:39] Speaker 05: It doesn't meet the terms of the statute and can't qualify as a mixed case. [00:40:46] Speaker 00: Can I ask you this question, which is getting back to the way that I was trying to construe the statute, and I know that your amicus counsel pointed out that there's a potential issue with 7702E, and I understand that. [00:41:01] Speaker 00: Is there a reason that the government, besides that, or maybe you think that argument is dispositive, but is there a reason that the government doesn't construe May appeal in the way that I was suggesting, which is that if you look at it at the time of the action, [00:41:12] Speaker 00: The question whether there's jurisdiction turns on the nature of the action. [00:41:16] Speaker 00: So either you have the ability to appeal or you don't. [00:41:18] Speaker 00: But if you look at it in terms of timeliness, that's based on things that happen after the time of the action. [00:41:23] Speaker 00: So as to those, you may appeal it. [00:41:26] Speaker 00: It's just that something might happen later on because the party slept on its rights or because you either waited too long or didn't wait long enough. [00:41:32] Speaker 00: But at the time of the action, we don't know any of that. [00:41:34] Speaker 00: So that thing can be appealed. [00:41:37] Speaker 05: I believe that is actually how we interpret it though, Your Honor, I'm not... It is. [00:41:40] Speaker 00: Because I thought you were focused on... I thought what you were focused on in your brief as a basis for drawing a textual distinction is what the footnote and conferto pointed to, which is that there can be waiver. [00:41:50] Speaker 00: And it's true that in situations in which there can be waiver, you could turn out to have the ability to take the appeal, the board can take the appeal. [00:41:58] Speaker 00: But I guess I'm trying to make a different point, which is take waiver out of the equation. [00:42:03] Speaker 00: The question is, at the time of the action, can it be appealed? [00:42:06] Speaker 00: And just because things that come along with respect to timeliness later on, they don't call into question that at the time of the action, it can be appealed. [00:42:13] Speaker 00: Whereas for jurisdictional things, at the time of the action, we know whether it can be appealed or not based on [00:42:19] Speaker 00: the nature of the action. [00:42:22] Speaker 05: And I think when we reference waiver, we are trying to argue something along what you're stating right now, which is that certain actions at the time of the action may be appealed and certain actions may not. [00:42:34] Speaker 05: A 10-day suspension may not be appealed, but a 20-day suspension may. [00:42:38] Speaker 05: And certain actions may be appealed, such as a 20-day suspension, but if something happens, such as they slept on it or they filed late for any other reason, they later, [00:42:50] Speaker 05: it will be dismissed, but that does not mean the action may not be able to appeal in the first place. [00:42:54] Speaker 00: But the way I see a distinction, and the reason I'm asking this is because I think there's probably something wrong with this, which is why, as I understood it, you didn't make the argument. [00:43:02] Speaker 00: But for timeliness considered, for timeliness rulings, at the time of the action, we don't know yet whether there's going to be a timely appeal. [00:43:11] Speaker 00: So the person who's supposed to take the appeal can just wait too long. [00:43:15] Speaker 00: Now, I thought your response to that was, yeah, but that can be waived. [00:43:19] Speaker 00: So it turns out it still can be appealed. [00:43:20] Speaker 00: And I guess what I'm saying is I don't even care about waiver, because I'm looking at it at the time of the action, and I'm saying, yeah, it can be appealed. [00:43:28] Speaker 00: So waiver just never even enters into the equation for me. [00:43:31] Speaker 05: I think the waiver response though is more in line with people or with Judge Dyke's dissent in Conforto and the waiver argument actually originally arose from the majority in Conforto where Judge Dyke believed that an action which was appealed 60 days or 90 days or 120 days after the original adverse action may not be appealed because it was dismissed for timeliness and the waiver argument is meant to say no those actions still may be appealed they just [00:44:00] Speaker 05: were dismissed because they did not comply with the board's procedures. [00:44:03] Speaker 00: Right, and I guess what I'm saying is there's an argument that that's just asking the wrong question. [00:44:08] Speaker 00: Because the question is, could that have been appealed at the time of the action? [00:44:12] Speaker 00: And at that point, we don't know whether the person's gonna go in 60 days, 90 days, or 120 days. [00:44:16] Speaker 00: The question is, at the time of the action, can it be appealed? [00:44:18] Speaker 00: And the answer is yes. [00:44:20] Speaker 00: So we never even care about waiver, because we look at it at the time of the action and we say, yes, it could have been appealed. [00:44:26] Speaker 00: That's the textual distinction. [00:44:28] Speaker 00: Now, there must be something wrong with that. [00:44:29] Speaker 00: But when I read the statute, that's the way I look at it. [00:44:34] Speaker 05: I'm not certain I actually see anything wrong with that. [00:44:38] Speaker 05: I believe that we're arguing the same point, that the action may be appealed or may not be appealed. [00:44:42] Speaker 05: OK. [00:44:42] Speaker 05: All right. [00:44:43] Speaker 04: Well, maybe it's that does the board have the power? [00:44:47] Speaker 04: entertain, to review that action. [00:44:51] Speaker 04: And in the case of the timeliness, it has the power. [00:44:57] Speaker 04: Timeliness things can be waived. [00:44:58] Speaker 04: They aren't jurisdictional. [00:44:59] Speaker 04: So it has the power. [00:45:02] Speaker 04: And I take it your argument is here they just don't have the power because it was in a retirement. [00:45:09] Speaker 04: Voluntary resignation, yes. [00:45:11] Speaker 04: Or they say you have the power because it was actually a covert termination. [00:45:17] Speaker 05: They're what they're alleging is that the board has jurisdiction because it was involuntary resignation and what we're saying is until it is established as an involuntary resignation, it is not within the jurisdiction of the board. [00:45:28] Speaker 04: Back to the question about at what point in time would Congress want the board to have evaluated whether [00:45:38] Speaker 04: it had the power. [00:45:40] Speaker 04: Complaint or end of hearing. [00:45:43] Speaker 05: Congress actually gave the board authority to set its own regulations to adjudicate its decisions in 1204H and one of those regulations we set was our procedures in determining whether such an action is within the [00:45:58] Speaker 05: jurisdiction of the board. [00:45:59] Speaker 05: And so by giving us that authority, I think they left it to the board to determine when it should determine if something's within its jurisdiction. [00:46:11] Speaker 05: Thank you very much. [00:46:12] Speaker 05: Thank you. [00:46:14] Speaker 02: Ms. [00:46:14] Speaker 02: Tabelson, we'll give you back a minute. [00:46:27] Speaker 01: Uh, Your Honor, Judge Millett, I think, was asking a question that goes to the core of this case, which is, at what point in time do we decide whether the elements of 7702A1 are satisfied? [00:46:37] Speaker 01: And there is an answer to that question. [00:46:39] Speaker 01: If we look at the rest of 7702, it's clear that you have to be able to answer the question about 7702A at the time the employee files the case, at which point all he has are his allegations. [00:46:51] Speaker 01: So if the employee claims to have suffered, for example, an involuntary termination [00:46:56] Speaker 01: and claims that it was motivated by discrimination, then 7702A is satisfied. [00:47:01] Speaker 01: If that is not the case, then the rest of 7702, which sets deadlines that run from the time of filing and provides, in E, an immediate right of district court appeal if the board does nothing in 120 days, makes no sense. [00:47:13] Speaker 01: Kleckner is consistent with that interpretation. [00:47:16] Speaker 01: As Kleckner reflects, the May appeal language in 7702A1A [00:47:21] Speaker 01: is not defeated by an ultimate board decision that the appeal cannot go forward for any reason, procedural in that case, or jurisdictional, what I'm arguing here. [00:47:30] Speaker 01: As a result, there's really only one way to understand this statute and to understand what a mixed case is. [00:47:35] Speaker 01: And in fact, it is consistent with the way a mixed case is defined in the applicable regulations. [00:47:40] Speaker 01: It's a case in which the employee claims to have suffered a personnel action appealable to the board and claims that that action was motivated by discrimination. [00:47:48] Speaker 01: Thank you, Your Honors. [00:47:49] Speaker 01: If there are no further questions, [00:47:52] Speaker 02: Ms. [00:47:53] Speaker 02: Tabelson, you were appointed by the court to represent the appellant in this case and the court, thank you for your excellent assistance and thank to all the counsels for an excellent argument. [00:48:02] Speaker 02: The case is submitted.