[00:00:02] Speaker 08:
Case number 14-7210, James A. Thompson Jr.

[00:00:06] Speaker 08:
Appellant vs. District of Columbia at L. Ms.

[00:00:09] Speaker 08:
O'Sullivan for the appellant, Ms.

[00:00:10] Speaker 08:
Wilson for the appellees.

[00:00:40] Speaker 03:
Good morning, Honors.

[00:00:49] Speaker 07:
I have not been lead counsel in this case since the beginning.

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My law partner of blessed memory was.

[00:00:57] Speaker 07:
As you say, you don't look old enough to lead from the beginning.

[00:01:01] Speaker 07:
Thank you so much, Your Honor.

[00:01:03] Speaker 07:
I have been involved in this case from the very beginning, not long after just a few years out of law school.

[00:01:10] Speaker 07:
And here we are 19 years later.

[00:01:15] Speaker 07:
May it please the court, my name is Mike Asab, I represent Jim Thompson, and I'm joined by my colleague Dennis Chong.

[00:01:24] Speaker 07:
18 years ago when Jim Thompson was fired, his employment was terminated in a way designed to hide what was really happening.

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The termination was not a rogue act by some low-level employee.

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It was done literally by the hands of the man who ran the lottery, the most senior official there.

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And it wasn't a rare aberration.

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Wasn't like what we saw at the lottery was good personnel practices with proper protections in place for employees.

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At about the exact same time as Mr. Thompson's engineered termination, a jury was reaching the conclusion in the Fox case that Mr. Fox had been fired because he had called the police about a security violation, which embarrassed a high-level lottery official and caused the delay of one of that official's friend's promotions.

[00:02:41] Speaker 07:
It was endemic at the lottery.

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The lottery board was aware of this.

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In September of 96, almost immediately after the constructive termination, the lottery board wrote a letter to Mr. King, the executive director, informing him, we made a mistake when we hired you.

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You've got a three-month review period here.

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And in that letter, it identified personnel violations among other violations.

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The board knew, but it took no action.

[00:03:26] Speaker 03:
Is your answer to their Menell argument, one, procedurally you can't raise it at this juncture because of the agreement against summary judgment?

[00:03:40] Speaker 03:
Two, even if you can raise it, it's satisfying to know because

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Mr. King was the policymaker, or is it three, the board ratified Mr. King's policymaker?

[00:03:56] Speaker 07:
All of the above, Your Honor.

[00:03:59] Speaker 07:
I should point out that the agreement between the District of Columbia and Mr. Thompson, that they would not seek dispositive disposition of the case was- Well, the agreement said, was strikingly specific about

[00:04:16] Speaker 03:
Right, but I don't know that they can get to their Monell argument without it being a 56-D argument.

[00:04:35] Speaker 03:
When did they first raise Monell?

[00:04:38] Speaker 07:
Very recently, Your Honor.

[00:04:40] Speaker 03:
I saw it in their second motion for judgment on the pleadings, which I think attached other documents.

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judgment motion, but I don't have their answer.

[00:04:59] Speaker 07:
That was in the, was that in the 2000s?

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Or was that the 1998 motion?

[00:05:05] Speaker 03:
The second one was 2003, March 2003, Maryse Mannell and attached documents outside the pleadings that called it a judgment on the pleadings, but their first motion

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in January 2003, we don't have a copy of.

[00:05:22] Speaker 03:
It sounds like that raised mail, but I don't know if they attached things outside, whether that was a summary judgment or whether that was a legitimate judgment on the pleadings.

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And I don't have their answers, so I don't know if it.

[00:05:34] Speaker 07:
Unfortunately, I don't have that answer either.

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We had sent those files off site.

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They're quite voluminous.

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I wish I had the answer to that.

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I did look at some material on our server and that we had in the office.

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And there were no Monell arguments raised early in the case, as best I could tell, except that

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We do have indication that some of the lawyers for the District of Columbia, Wendell Hall and Mark Back, Mark Back who's recently been proposed to serve on the Superior Court bench, these are skilled lawyers.

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These are not lawyers without experience and knowledge in the field.

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And if there were a viable Monell claim, they would have addressed it before reaching the agreement that they wouldn't seek summary judgment.

[00:06:33] Speaker 07:
So from our perspective, Monell has never been the locus of dispute in this case.

[00:06:42] Speaker 03:
And can you explain to me, he originally filed a CMPA appeal from the RIPP action.

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Why that was abandoned and why could could that appeal have

[00:07:00] Speaker 03:
given him the relief he wants and that it could, could he have gotten from that appeal reinstatement?

[00:07:05] Speaker 07:
No, Judge Millett, it could not.

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Although it's in, it's preliminary, there certainly is case law that suggests that a statute of limitations in terms of the timeliness of bringing something to the Office of Employee Appeals could be ignored

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or the lack of timeliness rather, when it's the government's failure to advise the employee of his or her right to go to OEA.

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In this case, however, I can state with certainty, because I was on these phone calls, that the administrative law judge, Judge Lim, was absolutely unequivocal that this case was solely about the reduction in force.

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It was not about anything that had happened earlier.

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And by earlier, I'm not talking about the pre-termination stuff.

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I'm talking about the determination and the constructive discharge.

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First OEA appeal was filed on October 7, long after the 15 days that were then permitted under the codes and the rules for filing an appeal to OEA.

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And we argued that the... Was it outside the time limit from the date of the rip?

[00:08:29] Speaker 07:
The RIF itself was the end of September, so it was not outside of the time for the RIF.

[00:08:38] Speaker 03:
What I'm trying to ask is, I understand you have other arguments about the transfer into the position to begin with, but what I'm just trying to figure out is, and maybe there were other things one could have

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had that CMPA adjudication gone forward?

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He made the arguments there that I should not have been subject to the RIF because I should not have been in the spot and essentially make the exact same arguments that have been made here.

[00:09:10] Speaker 03:
And could that process order reinstatement?

[00:09:16] Speaker 07:
Your Honor, you put me in a difficult position.

[00:09:18] Speaker 07:
My opinion is that it should have.

[00:09:22] Speaker 07:
The OEA view was that it would not and could not.

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That the question before the OEA was whether a riff had been done, whether it was a bona fide riff, which we have from the beginning acknowledged to be the case, and whether he lost his job through that riff.

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Now we said, but the only reason he was there

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was because of this misconduct.

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That was of no interest to the OEA.

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They had a very narrow view of the scope of their authority.

[00:10:03] Speaker 07:
And we can say, well... So they took as a given the bona fides of the transfer?

[00:10:09] Speaker 07:
Yes.

[00:10:13] Speaker 07:
Well, strike that...

[00:10:16] Speaker 07:
They said that transfer happened before the riff.

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We are only looking at the riff.

[00:10:23] Speaker 07:
Was he in a position that was eliminated?

[00:10:25] Speaker 07:
Yes, he was.

[00:10:27] Speaker 07:
That's it.

[00:10:27] Speaker 07:
And that was the scope of the issue on appeal.

[00:10:34] Speaker 03:
When I said in the record, that's all that they were looking at.

[00:10:37] Speaker 03:
You don't have it right now.

[00:10:38] Speaker 03:
You can do it on rebuttal.

[00:10:41] Speaker 07:
Your Honor.

[00:10:45] Speaker 07:
At 326 in the appendix, there's only the most passing reference.

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The agency had filed a motion to dismiss for lack of jurisdiction, alleging that Mr. Thompson had not filed an internal

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grievance, a grievance in-house, and therefore there was no action over which the OEA could adjudicate.

[00:11:21] Speaker 07:
So that's really very vague, and it doesn't go very directly to the issue.

[00:11:28] Speaker 07:
The long and the short of it is that I don't believe that there is anything in the record that specifically states that OEA was cabining its review.

[00:11:43] Speaker 07:
But that was the case.

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And we know, by the way, of course,

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The OEA appeal, if we want to take a formal view of this,

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We know that the OEA appeal was filed timely as it relates to the riff, which was, of course, when Mr. Thompson lost his position.

[00:12:06] Speaker 07:
So it was timely as to that, but it was not timely as to the constructive discharge.

[00:12:13] Speaker 07:
And it was, of course, the constructive discharge.

[00:12:15] Speaker 03:
It would be timely if they hadn't given you proper notice.

[00:12:18] Speaker 03:
I'm sorry?

[00:12:19] Speaker 03:
It would be timely if they hadn't given you proper notice.

[00:12:21] Speaker 03:
There would be tolling, I assume, of the time limit if they had hid the information from you.

[00:12:26] Speaker 07:
I believe that all of the case law that suggests or that indicates that there is tolling is case law that comes long after 1996 and 1997.

[00:12:35] Speaker 07:
I don't think that that was really anything that anybody was particularly aware of at that time.

[00:12:46] Speaker 03:
And then can you just explain to me, just to get back to the Menel question, just real quickly, the argument that he was

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the final policymaker, or I'll make it shorter.

[00:13:01] Speaker 03:
Can one tell from just looking at the complaint and answer whether he was the final policymaker?

[00:13:07] Speaker 07:
No.

[00:13:08] Speaker 07:
No, one cannot, because to know whether he's the final policymaker from the complaint, I don't have the complaint memorized, but I'll assume that we said that Frederick King took this action, that Frederick King was the executive director.

[00:13:23] Speaker 07:
And conceivably, when we look at Triplett in particular, we can see that, and we look at the statutory scheme where the executive director is the chief executive officer of the lottery board, and we compare the circumstances in Triplett in terms of the statutory authorities

[00:13:51] Speaker 07:
the role of the chief executive officer, the role of the agency in promulgating rules, and the chief executive officer's role in that regard.

[00:14:03] Speaker 07:
Perhaps there's a way that one could argue on the complaint and answer that Mr. King was a final policymaker.

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Does that read the statute?

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If the complaint alleges that King is the executive director, and then the statute assigns policy-making authority in this area to the executive director, then you'd be home on Manil.

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And so then the question is, what does the statute say?

[00:14:38] Speaker 07:
Well, the statute, and of great significance here, the statute says that the executive director

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not the board itself, the executive director, is the personnel authority for the lottery.

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Not, by the way, for him or herself and not for the deputy director, but for everybody else at the lottery, including, of course, Mr. Thompson.

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So in that regard, if the personnel authority is

[00:15:03] Speaker 07:
the final policymaker as it relates to personnel matters, then that would get us there.

[00:15:10] Speaker 07:
The problem is that we always have to struggle with drawing that distinction between discretionary actions by somebody, which of course are not final policymaking authority, and the ability to set the policy.

[00:15:25] Speaker 07:
And unfortunately, DC law does a very poor job of defining the role of the personnel authority.

[00:15:34] Speaker 07:
The job is to implement, and so one might- As opposed to formulate.

[00:15:40] Speaker 07:
I'm sorry?

[00:15:40] Speaker 08:
As opposed to formulate.

[00:15:41] Speaker 07:
Right, so one might draw that distinction, implement versus formulate.

[00:15:45] Speaker 07:
So yeah, it would be nice if we could just look and see it's very clean, but rarely is that the case in Monell arguments.

[00:15:52] Speaker 01:
So if you had to litigate the Menell issue, what kind of evidence would you put into the record?

[00:15:57] Speaker 07:
We would look at the actual role of the executive director in making employment decisions.

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For years and time after time, the executive director acted independently in setting personnel policy at the lottery.

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And that would be our primary role.

[00:16:23] Speaker 07:
And of course, that's following on the Scalia case, in which the formal words of the statute are not dispositive.

[00:16:34] Speaker 07:
My colleague from the District of Columbia says, look at everything that it says in the statute.

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And I say, yeah.

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And look at what actually happened with knowledge and without interference by the board, which was largely inactive.

[00:16:52] Speaker 06:
I thought in the earlier go-around of this, what we call Thompson 1, that the court had said that King had absolute discretion to identify positions for abolishment.

[00:17:04] Speaker 06:
That is correct, Judge Griffith.

[00:17:06] Speaker 07:
Absolutely right.

[00:17:07] Speaker 07:
His testimony, unrebutted, was that he decided who to hire, who to fire, without supervision.

[00:17:14] Speaker 07:
That he decided who went on the rich list.

[00:17:16] Speaker 06:
Because it just seemed to me from your earlier answer, you were turning the Menell question to a factual determination for us.

[00:17:21] Speaker 06:
I don't think you want to do that, do you?

[00:17:23] Speaker 06:
Well, I'd rather not, Your Honor, to be sure.

[00:17:26] Speaker 07:
I'll take whatever I can get.

[00:17:31] Speaker 07:
And that's why I say it's a little uncomfortable, because I think one can make the argument, as we have, that just on the paper, just in terms of the law, and perhaps maybe if we go beyond that and say the facts alleged in the complaint on a 12b6 motion, we would prevail.

[00:17:50] Speaker 07:
But on a summary judgment motion, I think there would have to be some looking at the facts.

[00:17:56] Speaker 07:
The facts are that Mr. King testified without rebuttal that he had primary, strike that, he had sole authority to formulate the riff list, to formulate how the riff would be done.

[00:18:09] Speaker 06:
So if you prevail, then you think this ought to go back to the district court to make that sort of determination?

[00:18:16] Speaker 06:
No, Judge.

[00:18:17] Speaker 07:
I believe that the facts that are before this Court are adequate for this Court to conclude that in fact Mr. King was the final policymaker.

[00:18:30] Speaker 07:
I think it's important to note that there is no contradictory evidence

[00:18:36] Speaker 07:
All the evidence in this case shows that Mr. King acted independently, he acted with authority, and not just effectuating policies that someone else put in place.

[00:18:47] Speaker 03:
Just to clear up, our prior decision was talking about his authority over the riff.

[00:18:52] Speaker 03:
I take it it's a different question whether he had authority about transferring people into positions.

[00:19:02] Speaker 07:
You're probably right, Your Honor.

[00:19:04] Speaker 07:
It's hard to tease these apart, of course, right?

[00:19:07] Speaker 03:
I'm just trying to figure out how much we've already decided.

[00:19:10] Speaker 07:
Right.

[00:19:11] Speaker 07:
And so, first, I don't think that there is any contradictory evidence

[00:19:18] Speaker 07:
over whether anybody had any role in hire and fire and transfer decisions other than Mr. King.

[00:19:27] Speaker 07:
That's the actual decisions and even the policy underlying it, while they're including the fact that Mr. King is the personnel authority for the agency.

[00:19:38] Speaker 07:
So I think that that puts that issue to bed.

[00:19:42] Speaker 07:
So if we're focused on the transfer into, or as this court already held, the constructive termination that happened in August, in that regard, Mr. King was the personnel authority.

[00:19:54] Speaker 07:
He was the final policymaker.

[00:19:57] Speaker 07:
If we tie that to the riff, we have the same thing where he was the sole actor and the sole decision maker.

[00:20:08] Speaker 07:
relying on the Ascalia proposition that whatever may appear in statute is helpful but not dispositive, it's clear that Mr. King was the final policymaker as it relates to the riff.

[00:20:22] Speaker 08:
But just to be clear, but your first order, this is all fallback, your first order position is that we shouldn't be getting into this enterprise at all because of the agreement.

[00:20:32] Speaker 07:
Judge, if... I know you'd like to say it depends on how we come out, but... Am I that transparent?

[00:20:40] Speaker 07:
Yes.

[00:20:42] Speaker 07:
To be sure, if the court's going to determine as we want, then you should decide the issue.

[00:20:47] Speaker 08:
But your view is that the agreement forecloses our ability to get into this because... Yes, Judge.

[00:20:52] Speaker 07:
That's absolutely right.

[00:20:54] Speaker 08:
And if... And then what would happen if we were to go back down to the district court?

[00:21:00] Speaker 07:
Well, if this court believes that the record is not adequate to actually reach the conclusion, and frankly, as I've said, I think the record is very strong in this regard.

[00:21:10] Speaker 07:
This record is more than adequate for this court to conclude that Mr. King was the final policymaker.

[00:21:16] Speaker 08:
But suppose what we say, we don't get into that because there's an agreement.

[00:21:20] Speaker 08:
Right.

[00:21:20] Speaker 08:
And that agreement extends to this context.

[00:21:24] Speaker 08:
I mean, the district draws a distinction between Rule 56 proceedings before the district court and proceedings before us.

[00:21:29] Speaker 08:
But suppose that we just say, well, the spirit of the agreement or the letter of the agreement, according to your argument, would preclude the ability for us to get into this issue now anyway because it's the functional equivalent of asking for a Rule 56 determination in the district's favor.

[00:21:44] Speaker 08:
So we won't do that.

[00:21:45] Speaker 08:
Then it goes back down.

[00:21:46] Speaker 08:
the case goes back down, then this issue remains open?

[00:21:52] Speaker 07:
It does judge, although I don't think that abiding by the agreement forecloses this court from reaching the affirmative conclusion that Mr. King was the final policymaker.

[00:22:05] Speaker 07:
So the issue, I don't think that that's outside the realm of the power of the court.

[00:22:14] Speaker 07:
Um, and frankly, I think that the reason Judge Leon issued the decision he did was because he recognized that it could not be presented by the defendant.

[00:22:24] Speaker 07:
If the case was to be dismissed, he had to act so as Sponte.

[00:22:27] Speaker 07:
So as Sponte, right.

[00:22:27] Speaker 03:
Right.

[00:22:28] Speaker 03:
I guess what I'm trying to figure out is that normally, Menell arguments can be waived.

[00:22:33] Speaker 03:
And they didn't raise it before the settlement.

[00:22:40] Speaker 03:
I can't see any sign that they raised it before the settlement and the stipulation.

[00:22:45] Speaker 03:
And if at that point they tied their hands so they couldn't raise it going forward, would that be

[00:22:53] Speaker 03:
constructive waiver of the Menell argument, or were they just allowed to say to litigate it at trial?

[00:23:00] Speaker 03:
I can't quite figure out what to do with this, how the stipulation works, is meant to work in this regard.

[00:23:05] Speaker 07:
Our view, as I harkened to earlier, our view was that they knew of the prospect of Manel.

[00:23:16] Speaker 07:
They didn't... I'm sorry?

[00:23:19] Speaker 07:
Well, one would hope, indeed, and as I said, the lawyers who were handling the case then, as now, were excellent lawyers, and they were aware of this, and yet they didn't

[00:23:33] Speaker 07:
see it as a viable claim.

[00:23:36] Speaker 07:
So if we go back to the Court of Appeals to be, I beg your pardon.

[00:23:42] Speaker 07:
Bite my tongue.

[00:23:43] Speaker 07:
I hope never to be before you again on this case.

[00:23:48] Speaker 07:
But if we were to go back to the trial court, then the arguments we would make are that there is no question as a matter of fact or law regarding whether Mr. King is the final policymaker, and indeed that they have waived that argument by foreclosing any kind of motion that would have addressed it

[00:24:09] Speaker 07:
even though they could have much earlier.

[00:24:11] Speaker 08:
Would you have the same waiver argument with respect to the ground on which the district court did resolve the case Suizuante?

[00:24:23] Speaker 07:
The decision by Judge Leon

[00:24:28] Speaker 07:
is so problematic.

[00:24:30] Speaker 07:
I don't know.

[00:24:31] Speaker 07:
I haven't even begun to think about whether there's any sort of waiver argument by the district.

[00:24:36] Speaker 07:
In part, frankly, Your Honor, I don't know.

[00:24:39] Speaker 07:
I hope that my colleague will defend that decision, because that's her role.

[00:24:46] Speaker 07:
And I live in the district, and I want them to do their jobs.

[00:24:48] Speaker 07:
But I don't know that the government truly believes that Judge Leon's decision was a sound decision.

[00:24:58] Speaker 07:
The judge asked for briefing as, I guess I just step back and say, the judge called us in for a status conference after one of my many motions to try to get the case restarted.

[00:25:12] Speaker 07:
The case was quiescent for eight years or something.

[00:25:16] Speaker 07:
And we met in a conference room, unfortunately not on the record.

[00:25:21] Speaker 07:
And the judge indicated that there would have to be, I guess, we have to schedule a trial, he said.

[00:25:26] Speaker 07:
And then suddenly he sort of interjected, but wait, are damages permitted in a case like this?

[00:25:31] Speaker 07:
And we said, you mean a due process case, Your Honor?

[00:25:33] Speaker 07:
And he said, yeah.

[00:25:36] Speaker 07:
And so he asked for briefing on damages, on what damages were permissible.

[00:25:42] Speaker 07:
And so we explained, and it's in the appendix, what we believe the appropriate measure of damages was in this case.

[00:25:50] Speaker 08:
Yeah, I guess I may be asking a question to which there's a very easy answer.

[00:25:55] Speaker 08:
Because I don't mean to get into the merits of whether it was proper, whether the decision on how to allocate the burden was correct.

[00:26:01] Speaker 08:
I don't mean to get into that.

[00:26:02] Speaker 08:
I guess what I'm asking is,

[00:26:04] Speaker 08:
If the case goes back down, then the parties have to deal with what is still open for resolution when it goes back down.

[00:26:12] Speaker 08:
And I think Monell is one possibility.

[00:26:14] Speaker 08:
And one answer to that, if we don't resolve Monell and we say because of the agreement, we're not going to get into that, it goes back down, then one possibility is, well, Monell is actually not open because it's baked into the agreement.

[00:26:26] Speaker 08:
And so that's foreclosed.

[00:26:27] Speaker 08:
And I take it then the argument would be that there can't be a suespante determination as to Monell either because there had been a waiver.

[00:26:34] Speaker 08:
Yes, Judge.

[00:26:35] Speaker 08:
And I guess my question is, does that same logic also apply to this suesponte determination that was made?

[00:26:44] Speaker 07:
Oh, I don't think so, Your Honor.

[00:26:46] Speaker 07:
Because the issue that Judge Leon addressed is whether the plaintiff or the defendant has the burden of proof, right?

[00:26:55] Speaker 07:
Right.

[00:26:56] Speaker 07:
And of course, that wasn't the question that the judge had asked.

[00:26:59] Speaker 07:
So that's not the question that we answered in the district court.

[00:27:04] Speaker 07:
And I don't think there's much mystery as to what the proper answer should be.

[00:27:08] Speaker 07:
But either way, I don't think that that's an issue that somehow would have come up.

[00:27:16] Speaker 07:
Whether Mr. Thompson is entitled to damages is not a hard question.

[00:27:23] Speaker 07:
I don't think that there would have been a motion for them to have filed.

[00:27:28] Speaker 07:
I suppose if the court wants me to make such a motion, I could do so with some ease.

[00:27:33] Speaker 07:
But I don't know that that's something that we would put a lot of eggs in our basket for.

[00:27:40] Speaker 06:
OK, that's fine.

[00:27:41] Speaker 06:
I'm just curious, in terms of damages, was there any evidence about damages?

[00:27:45] Speaker 06:
Evidence about damages?

[00:27:46] Speaker 06:
Evidence about damages?

[00:27:47] Speaker 06:
Is there anything in the record, in fact, finding by the district court on damages?

[00:27:52] Speaker 07:
Fact finding by the district court?

[00:27:54] Speaker 07:
No.

[00:27:55] Speaker 07:
The undisputed evidence relates to calculation of lost wages, which I think exceeds a million dollars, and emotional distress.

[00:28:07] Speaker 07:
And there's voluminous evidence from Mr. Thompson's mental health providers.

[00:28:13] Speaker 06:
But the district court never passed on any of that.

[00:28:16] Speaker 07:
Correct, Your Honor.

[00:28:18] Speaker 07:
Thank you.

[00:28:30] Speaker 00:
Good morning, and if it pleases the court, I'm Mary Wilson, representing the District of Columbia.

[00:28:37] Speaker 00:
There's no point to remand this case for trial because any trial would be futile because the district would be entitled to judgment as a matter of law at trial because under Monell, the plaintiff would not be able to establish municipal liability.

[00:28:59] Speaker 00:
I also don't have the earlier record, but we definitely raised it immediately upon remand.

[00:29:08] Speaker 00:
In 2010, we raised it in opposition to the plaintiff's motion for summary judgment.

[00:29:12] Speaker 03:
2010?

[00:29:15] Speaker 00:
I'm sorry, 2011, DC's own summary judgment motion.

[00:29:20] Speaker 03:
But I don't think, Your Honor, that there's any... 13 years after the case started?

[00:29:24] Speaker 00:
First of all, the plaintiff has never argued that we have waived or forfeited our Menell argument by not immediately raising it if it wasn't immediate.

[00:29:34] Speaker 06:
Did you say not immediately raising it?

[00:29:36] Speaker 00:
Yes.

[00:29:36] Speaker 00:
And the stipulation.

[00:29:38] Speaker 03:
Do you have a copy of your answer?

[00:29:41] Speaker 00:
Did you raise it in the answer?

[00:29:45] Speaker 00:
It's in storage.

[00:29:48] Speaker 00:
But the stipulation that was signed by both government lawyers and plaintiff's lawyers said the parties hereby reserve all rights and defenses as to the remaining counts in the complaint.

[00:29:59] Speaker 00:
And in all the time we raised the Menell issue in.

[00:30:01] Speaker 03:
But you also said, you didn't just say that you won't file for summary judgment.

[00:30:06] Speaker 03:
It also said you won't litigate motion for summary judgment.

[00:30:10] Speaker 03:
And it sounds to me, to the extent it was raised, you kept raising these

[00:30:18] Speaker 03:
I've never seen so many motions for judgment on the pleadings in a single case.

[00:30:22] Speaker 03:
I thought people did it once.

[00:30:24] Speaker 03:
And then a motion in Lemony to raise legal dispositions.

[00:30:30] Speaker 03:
I mean you keep doing that, which is litigating summary judgment

[00:30:36] Speaker 03:
by another name, isn't it?

[00:30:38] Speaker 00:
The district is in an awkward position here, because it has legal defenses.

[00:30:43] Speaker 00:
It could raise a trial that make going to trial futile.

[00:30:47] Speaker 03:
And that's what you do when you say I'm not going to do it.

[00:30:50] Speaker 03:
I'm sorry.

[00:30:51] Speaker 08:
You entered an agreement.

[00:30:52] Speaker 08:
You entered an agreement.

[00:30:52] Speaker 00:
But we reserve the rights and defenses.

[00:30:55] Speaker 03:
Well, then at the end of the trial, you can make a motion on that.

[00:30:57] Speaker 03:
But you have to.

[00:31:00] Speaker 03:
That's an agreement that I'm not going to litigate summary judgment

[00:31:05] Speaker 00:
Yes, but the stipulation was not binding on the district court.

[00:31:11] Speaker 00:
It's not binding in this court.

[00:31:13] Speaker 00:
The district court has the authority to sue a sponte grant summary judgment.

[00:31:17] Speaker 03:
Only in exceptional circumstances, I think, is our president.

[00:31:20] Speaker 03:
There's nothing exceptional about holding you to your agreement.

[00:31:24] Speaker 00:
The district court's entitled to grant judgment to Esponte when there's no prejudice to the plaintiff and the issue has been thoroughly briefed.

[00:31:34] Speaker 00:
And it was thoroughly briefed here in the cross motions for some of the judges.

[00:31:37] Speaker 03:
There's plenty of prejudice to the plaintiff because you're breaching your stipulation.

[00:31:41] Speaker 03:
And what is the exceptional circumstance that would allow this?

[00:31:44] Speaker 00:
The exceptional circumstance is that it would be a waste of the court's time and Mr. Thompson's time himself to allow him to go to trial.

[00:31:53] Speaker 03:
I think he's not concerned about wasting his time litigating this case.

[00:31:56] Speaker 00:
Well, I think the district court was concerned about taking this case to trial when the district has legal defenses, clear legal defenses under Supreme Court case law.

[00:32:07] Speaker 03:
Well, if they're so clear, you would have raised it at some point in 13 years, wouldn't you?

[00:32:11] Speaker 00:
Well, this court's second appeal really focused the case on the fact that he was entitled to process under his version of the facts at the time of the reassignment.

[00:32:26] Speaker 00:
And at that point, the district immediately raised Manel on remand.

[00:32:30] Speaker 00:
And it may have raised it before that.

[00:32:32] Speaker 00:
I'm not sure yet on it.

[00:32:35] Speaker 00:
immediately raised it on remand from the second.

[00:32:37] Speaker 00:
And Mr. Thompson, rather than say, yes, let's have a... Is that what you raised in your summary judgment motion?

[00:32:45] Speaker 00:
At least by then, yes.

[00:32:50] Speaker 00:
In a summary judgment motion.

[00:32:52] Speaker 08:
Which is exactly, I mean, you can't, there's other things that are the functional equivalent of summary judgment, but a summary judgment motion is a summary judgment motion.

[00:32:59] Speaker 00:
I think it doesn't make sense for the court to say Mr. Thompson can force the district court to take this case to trial when the district court has a crowded docket and has determined that the district is entitled to judgment as a matter of law.

[00:33:13] Speaker 03:
No, what they could say is you had your chance.

[00:33:16] Speaker 03:
You forewent summary judgment.

[00:33:17] Speaker 03:
You'd never mentioned Manil before.

[00:33:20] Speaker 03:
You can't show me that you ever mentioned it before.

[00:33:23] Speaker 03:
And the only place that, if you haven't raised that by summary judgment, the normal rule is that it's waived.

[00:33:29] Speaker 03:
And so that must have been a waiver.

[00:33:31] Speaker 00:
I don't think Mannell is an affirmative defense.

[00:33:33] Speaker 00:
Mannell establishes how the plaintiff proves his case, how the plaintiff proves municipal liability.

[00:33:40] Speaker 00:
And if the plaintiff can't prove municipal liability under Mannell, we're entitled to raise that at trial.

[00:33:45] Speaker 00:
You have not established municipal liability.

[00:33:47] Speaker 00:
OK, then raise it at trial.

[00:33:51] Speaker 00:
We could raise it at trial, Your Honor.

[00:33:52] Speaker 00:
I just think it's an injustice to force this case to trial when the district has, you know, three different legal defenses as a matter of law that this could, I mean, under proprotic and singletary.

[00:34:05] Speaker 03:
Are any of those defenses things that are not waivable?

[00:34:10] Speaker 00:
Well, again, the plaintiff has waived any waiver argument.

[00:34:14] Speaker 00:
The plaintiff has never argued that we raised Menell too late.

[00:34:17] Speaker 00:
The plaintiff has never raised that argument.

[00:34:19] Speaker 03:
Well, because his opposition is, we should be at trial.

[00:34:21] Speaker 03:
We should be fighting this stuff at trial.

[00:34:23] Speaker 03:
You should stop trying to dismiss this case post-discovery, pre-trial, based on documents outside the record, which in my mind is called summary judgment.

[00:34:35] Speaker 03:
You certainly preserve that argument.

[00:34:37] Speaker 00:
I think considering that, the court

[00:34:39] Speaker 00:
this court and the trial court have that the stipulation does not bind the courts, and that the stipulation says the parties reserved all rights and defenses, that it just, I think the district court was entitled to act so as wanted to dismiss the case.

[00:34:58] Speaker 00:
And this court has the discretion to reach these issues rather than go through a sham trial or a useless trial, a feudal trial, when it's clear that the district

[00:35:09] Speaker 03:
But to be clear, the district court didn't choose to address Menil either.

[00:35:14] Speaker 03:
So now we would have to be the ones who would choose to address it.

[00:35:19] Speaker 00:
Well, the district court did choose to address one of the district's legal defenses.

[00:35:23] Speaker 00:
Oh, I understand.

[00:35:23] Speaker 03:
But it did not choose to address Menil.

[00:35:25] Speaker 00:
Yes, that's correct.

[00:35:26] Speaker 00:
It didn't.

[00:35:26] Speaker 03:
And in fact, it denied your summary judgment motion raising Menil on the ground that you don't get to do that.

[00:35:34] Speaker 00:
Yes, I think that's right.

[00:35:38] Speaker 00:
Well, or it might have been a minute order, but yes.

[00:35:40] Speaker 08:
But the ground was that you don't get to do it because of your agreement.

[00:35:47] Speaker 00:
Yes, but then the district court found itself in this conundrum that, in its crowded docket, it asked the parties to brief the legal issues that would be left for trial, and the district also did the motion to eliminate.

[00:36:06] Speaker 00:
Considering that the stipulation is not binding on the court, that the plaintiff agreed that we were preserving all defenses, the plaintiff has never raised waiver or forfeiture of Manil to force the district court to take this case to trial and then rule on Manil.

[00:36:25] Speaker 00:
It just doesn't make sense.

[00:36:27] Speaker 03:
If courts can sui espanti raise Manil, can they sui espanti find waiver?

[00:36:34] Speaker 03:
How much sui espanti power do courts have?

[00:36:42] Speaker 00:
I don't know of any cases up the top of my head where the court can suspend a fine waiver.

[00:36:49] Speaker 03:
Can I clarify just one thing on the same question I asked them?

[00:36:54] Speaker 03:
Do you think the Minnell decision can be made determined just on the basis of the complaint and your answer if we can ever get it?

[00:37:03] Speaker 03:
Or would you need as

[00:37:06] Speaker 03:
as they say they may need to have some outside information.

[00:37:11] Speaker 03:
Your summary judgment motion made Modell, but attached a bunch of other stuff to it, like summary judgment motions commonly do.

[00:37:17] Speaker 03:
I'm trying to figure out whether you could actually have a legitimate judgment on the pleadings on Modell in this case.

[00:37:25] Speaker 00:
Well, the court's first appeal was based on accepting the facts in the complaint.

[00:37:31] Speaker 00:
There was no concession on our part of those facts.

[00:37:41] Speaker 00:
I'm not sure.

[00:37:43] Speaker 00:
I think, yes, that the court could rule, based on a judgment on the pleadings, that there was no allegations of any decision made by a final policymaker.

[00:37:57] Speaker 03:
How long would it take?

[00:37:58] Speaker 00:
With the caveat that we didn't waive it if we didn't raise it in the answer, because it's not necessarily the verdict.

[00:38:03] Speaker 03:
Certainly for privacy's trial.

[00:38:05] Speaker 03:
How long would it take you all to get us a copy of your answer?

[00:38:08] Speaker 00:
I think the easiest way would be for me to ask the district court to dig it out, which I'm happy to do.

[00:38:14] Speaker 00:
That might be easier than us getting it.

[00:38:16] Speaker 03:
I think the district court stuff is boxed up, too.

[00:38:19] Speaker 03:
You can try that.

[00:38:20] Speaker 03:
I would like a copy of it if somebody can dig out the answer.

[00:38:24] Speaker 00:
I will work on digging it out.

[00:38:25] Speaker 00:
I mean, the case is done here.

[00:38:25] Speaker 03:
That's what the judgment on the pleadings is about, is the complaint and the answer, that we have all these motions and we don't have half of the operative documents.

[00:38:33] Speaker 00:
I would be happy to search with the understanding that

[00:38:36] Speaker 00:
that we strongly think that we preserved all defenses, that Monell is not an affirmative defense.

[00:38:43] Speaker 00:
In Pupratnik itself and in Singletary, these issues were raised at trial and post trial, and the courts decided the issue was post trial.

[00:38:51] Speaker 00:
So it was in a no way waived.

[00:38:52] Speaker 00:
Plaintiff hasn't claimed it was waived.

[00:38:54] Speaker 00:
And so we would urge the court to affirm because it's plain

[00:39:02] Speaker 00:
from the record that the plaintiff cannot establish municipal liability, that this case is indistinguishable from Singletary and Perotnik.

[00:39:12] Speaker 03:
On the, you had another argument about reclassification, did you not?

[00:39:20] Speaker 03:
That this was reclassification, not transfer?

[00:39:23] Speaker 00:
Well, this court's first appeal... It was just a correction, I guess, is what you called it.

[00:39:27] Speaker 00:
The court's decision in the first appeal makes clear that the district had raised two defenses.

[00:39:34] Speaker 00:
One, that the riff was not personal to him or he had not been transferred as a ruse, and two,

[00:39:41] Speaker 00:
that the court says the district needed to end his disruptive behavior.

[00:39:47] Speaker 03:
So I think it's clear that early on we had at least raised those two factual defenses.

[00:39:59] Speaker 02:
And maybe I'm getting confused, but I thought there was this reclassification argument.

[00:40:04] Speaker 02:
Is that not right?

[00:40:05] Speaker 02:
That his position was just reclassified?

[00:40:07] Speaker 00:
Well, that's one of our factual defenses that he says he was transferred to a new position.

[00:40:12] Speaker 03:
And that's a factual dispute.

[00:40:17] Speaker 03:
Well, he moved for semi-judgment on that.

[00:40:18] Speaker 03:
And that's why I'm asking you is what evidence is there in the record

[00:40:25] Speaker 03:
that you could answer his summary judgment motion on that issue with that would show, create a genuine issue of disputed material fact that it was a reclassification.

[00:40:35] Speaker 03:
And I'm asking that both as to evidence that it was a reclassification and two, that whether, whatever you labeled it,

[00:40:42] Speaker 03:
reclassification transfer is material, given the constructive discharge determination.

[00:40:49] Speaker 00:
I think we have not raised this issue as a grounds for affirmance on appeal.

[00:40:53] Speaker 00:
I think it's a factual dispute.

[00:40:56] Speaker 00:
I think the face of the personnel action form itself says reclassified.

[00:41:02] Speaker 00:
I think in Mr. King's deposition that's in the appendix, he says something about OHR reclassifying it.

[00:41:13] Speaker 00:
And there's evidence that Mr. Thompson himself referred to it as a clarification, a misclassification.

[00:41:20] Speaker 00:
But I think we have a factual dispute.

[00:41:22] Speaker 00:
Our alternative defense.

[00:41:23] Speaker 03:
No, I'm asking you why that labeling would be a material question of disputed fact for purposes of science.

[00:41:30] Speaker 03:
because whatever it's labeled, whether you call it a transfer or reclassification, it was a constructive discharge under our prior decision, was it not?

[00:41:38] Speaker 03:
So why is that a material?

[00:41:40] Speaker 00:
Accepting his version of the facts on the motion for judgment on the pleadings, it was constructive.

[00:41:44] Speaker 00:
But we also said his job duties didn't change, the function of his job didn't change, all it did was- We didn't have time to change.

[00:41:52] Speaker 03:
He was out of a job within a couple weeks.

[00:41:53] Speaker 00:
Well, our job description didn't change.

[00:41:56] Speaker 00:
Our position was that it just reclassified him in the right category.

[00:42:01] Speaker 03:
Did you dispute in the record that in fact his prior position continued after the riff and that in fact someone else was hired to fill it?

[00:42:10] Speaker 03:
That's their argument.

[00:42:11] Speaker 03:
I didn't know if you had disputed those facts.

[00:42:15] Speaker 00:
I'm not sure about that.

[00:42:17] Speaker 00:
But we do have the alternative ground for affirmance that

[00:42:22] Speaker 00:
that Mr. Thompson had an opportunity for a due process hearing at OEA and withdrew and abandoned any opportunity for that hearing.

[00:42:31] Speaker 00:
And it is clear that OEA could address his claim that he was improperly transferred and then riffed, and that the transfer was a ruse.

[00:42:41] Speaker 00:
And in fact, he raised that.

[00:42:43] Speaker 03:
But in our prior decision, this is the second prior decision on the very end,

[00:42:54] Speaker 03:
service employee transferred into a doomed position and we end that by saying, and the district does not contend it afforded him sufficient process for that.

[00:43:07] Speaker 03:
transfer into the doomed position.

[00:43:09] Speaker 03:
So how can we now?

[00:43:10] Speaker 00:
Well, I wish we had at that point.

[00:43:13] Speaker 00:
But again, the plaintiff has never claimed waiver.

[00:43:16] Speaker 00:
When we raised this issue below, he never came forward and said, you had an opportunity to raise that in the first appeal and have waived that.

[00:43:23] Speaker 00:
He said, rather, well, based on this stipulation, you can't raise that till trial.

[00:43:28] Speaker 00:
The plaintiff has never claimed that we waived that by not raising it in the earlier appeal.

[00:43:32] Speaker 03:
Did you give him notice, I think an elementary

[00:43:36] Speaker 00:
He didn't get noticed, but he requested a hearing before OEA, so any failure to get noticed is harmless.

[00:43:43] Speaker 00:
In his OEA complaint, he says that the government misled him.

[00:43:48] Speaker 00:
He was illegally transferred and singled out.

[00:43:51] Speaker 00:
He was unlawfully removed and then subject to the subsequent irregular breath.

[00:43:56] Speaker 00:
And due process required that he be heard prior to the final separation.

[00:44:01] Speaker 03:
So clearly, he raised the claim at OEA, and then he... No, but see, I guess I thought our prior president had held he had to have notice and an opportunity for process before the transfer.

[00:44:12] Speaker 00:
I'm pretty sure that's what we had held.

[00:44:14] Speaker 03:
And so this request, the argument that he could have had process, I guess, before the RIF termination is no...

[00:44:23] Speaker 00:
He asked that he be returned to the original position and that he had been transferred without due process and if he had had the hearing at OEA, OEA had full authority.

[00:44:49] Speaker 00:
I mean, if the court said to transfer the matter to a termination, OEA has jurisdiction to review terminations.

[00:44:55] Speaker 00:
And he could have said this was an illegal termination, and he asked for reinstatement to that original position.

[00:45:02] Speaker 00:
If OEA had given him what he asked for, he would be whole.

[00:45:06] Speaker 00:
he would not have been deprived of property without due process or at least he would have had due process.

[00:45:11] Speaker 03:
Whatever evidence do you have in the right?

[00:45:13] Speaker 03:
So they say that was never going to work because OEA was only going to say were you in a RIF position and was that position RIF?

[00:45:21] Speaker 03:
And so for a firmance as an alternative ground here, what evidence in the record do you have that OEA could have made a decision, that there was any sort of substantive decision before it that would have allowed them to give him, maybe they could have ordered him reinstated, but the legal issues that was decided were not the legal issues he's contesting.

[00:45:45] Speaker 00:
Well, I don't have independent knowledge about these telephone calls with the OEA ALJ.

[00:45:51] Speaker 00:
But if OEA ruled, no, we're not going to look at anything but the riff itself, plaintiff could have appealed that to severe court.

[00:45:59] Speaker 00:
And the Court of Appeals, that would have been part of this process.

[00:46:02] Speaker 00:
OEA has jurisdiction to review terminations.

[00:46:07] Speaker 00:
ruled that, accepting his facts, he was terminated at the time of the transfer and explained that to OEA.

[00:46:13] Speaker 00:
And if they reject that, take it to the Court of Appeals.

[00:46:16] Speaker 00:
He abandoned his opportunity to pursue that argument.

[00:46:19] Speaker 03:
He was untimely on that argument, he says.

[00:46:21] Speaker 00:
Well, I think, as the court said, if he didn't get final notice of the transfer and his right to appeal to OEA, then his time hadn't started running.

[00:46:31] Speaker 03:
Was there authority for that at the time?

[00:46:35] Speaker 03:
Proposition?

[00:46:36] Speaker 00:
I don't know when that...

[00:46:39] Speaker 08:
So just to be clear on OEA, so when you say reinstatement, we're talking reinstatement to the position from which he was transferred, not reinstatement to the position from which he was terminated.

[00:46:50] Speaker 00:
That's what he asked for in his OEA complaint, to be reinstated to the position before the rest position.

[00:46:56] Speaker 08:
And your view is that there, in fact, was authority to do that, that OEA had the ability to do that?

[00:47:02] Speaker 00:
Yes.

[00:47:03] Speaker 00:
OEA has jurisdiction over terminations, can reinstate people that are illegally terminated,

[00:47:09] Speaker 03:
I thought your position was the terminated position and his prior position were one and the same.

[00:47:15] Speaker 03:
That's the whole classification argument, so there's nothing to reinstate him to.

[00:47:19] Speaker 00:
Accepting his facts.

[00:47:20] Speaker 00:
Accepting his facts, as the court did in its decision, saying accepting his facts, that the transfer amounted to a termination, if you accept that premise, OEA

[00:47:37] Speaker 03:
classification that these positions were one and the same.

[00:47:40] Speaker 03:
His facts are that they are two different ones.

[00:47:42] Speaker 03:
Yours is that they are one and the same.

[00:47:44] Speaker 03:
So I'm trying to figure out what OEA would have, if you're right, what OEA would have put him back into.

[00:47:54] Speaker 00:
Well, if we're right, he was not deprived of any property and doesn't have a right to be.

[00:48:01] Speaker 00:
I mean, if we're right, then he wasn't terminated.

[00:48:05] Speaker 00:
If we're right, then he wasn't terminated.

[00:48:07] Speaker 03:
I'm just going with whether or not there's two positions or one.

[00:48:10] Speaker 03:
The process only works if there's two positions.

[00:48:15] Speaker 03:
Sometimes we're taking their facts and sometimes we're taking yours.

[00:48:19] Speaker 00:
accepting the plaintiff's position that when he was transferred to the doomed position, that that amounted to a termination.

[00:48:26] Speaker 00:
Accepting those facts, OEA has jurisdiction over terminations and authority to reinstate him to the original position.

[00:48:33] Speaker 00:
Under our facts, that he wasn't transferred is just job title was clarified.

[00:48:39] Speaker 00:
So that was, under our facts, it wasn't a termination.

[00:48:45] Speaker 03:
Right, so under your facts, there was in fact nothing OEA could have done because he just would have been reinstated into our position.

[00:48:52] Speaker 00:
Right, but OEA could decide whether it was a termination.

[00:48:58] Speaker 00:
So for either reason, I urge the court not to burden the district court with taking this case to trial unnecessarily and ask the court to affirm.

[00:49:09] Speaker 00:
Thank you.

[00:49:09] Speaker 06:
Thank you very much.

[00:49:11] Speaker 06:
Counsel, we'll give it back two minutes.

[00:49:14] Speaker 07:
Thank you, Your Honor.

[00:49:17] Speaker 07:
Mr. Thompson was entitled to process for his constructive discharge.

[00:49:24] Speaker 07:
That is what this court held in Judge Brown's decision.

[00:49:29] Speaker 07:
And there has never been an assertion before now that the District of Columbia extended process to Mr. Thompson.

[00:49:40] Speaker 07:
He was entitled to process for the constructive discharge.

[00:49:44] Speaker 07:
Not for the riff.

[00:49:45] Speaker 07:
We're not arguing about the riff.

[00:49:47] Speaker 07:
It was a legitimate riff.

[00:49:49] Speaker 07:
It was the constructive discharge.

[00:49:51] Speaker 07:
That's where the wrong was done.

[00:49:54] Speaker 07:
The wrong was not done in the riff.

[00:49:56] Speaker 07:
The wrong was done before the riff when Mr. Thompson was moved from a position that remained after

[00:50:06] Speaker 07:
The riff to a position that the day before had been slated for elimination.

[00:50:11] Speaker 07:
I'm not sure that there is any waiver to

[00:50:27] Speaker 07:
a waiver argument.

[00:50:29] Speaker 07:
I also don't know that the Monell argument has really had much of a hearing before the district court.

[00:50:35] Speaker 07:
As we explained in our brief, it's difficult for us to respond to this issue before the Court of Appeals when it has not really been explored by the district court.

[00:50:46] Speaker 07:
There's no district court decision on Monell.

[00:50:48] Speaker 03:
I'm sorry?

[00:50:52] Speaker 07:
No, Judge, I do not.

[00:50:55] Speaker 07:
You keep saying that.

[00:50:57] Speaker 07:
I do not think it means what you think it means.

[00:51:03] Speaker 07:
It's impossible, the government's in an impossible position if they want to try to argue that Mr. Thompson had adequate due process.

[00:51:13] Speaker 07:
The government hid his termination behind the riff.

[00:51:20] Speaker 07:
Clearly they did not provide notice to him.

[00:51:25] Speaker 07:
Was it

[00:51:27] Speaker 07:
Irrelevant because hypothetically, theoretically, maybe OEA might have provided relief.

[00:51:35] Speaker 07:
Of course, that brings us to the gravamen of the appeal.

[00:51:39] Speaker 07:
Mount healthy.

[00:51:40] Speaker 07:
The government has the burden to prove that the outcome would have been different.

[00:51:45] Speaker 07:
Not that hypothetically, theoretically, possibly, maybe, OEA might have decided, OK, we'll waive the lack of timeliness, or that the Superior Court would have reversed the OEA, or that the DC Court of Appeals would have reversed the Superior Court.

[00:52:01] Speaker 07:
They have to prove that the outcome would have been the same, and they cannot meet that burden.

[00:52:08] Speaker 03:
Mr. Claire, I thought you had

[00:52:10] Speaker 03:
to the district court every time they tried to raise Minnell that they're not allowed to do it.

[00:52:14] Speaker 03:
We did.

[00:52:15] Speaker 03:
Because of the room.

[00:52:18] Speaker 07:
Your Honors, I want to be clear as to what we're looking for.

[00:52:24] Speaker 07:
So if I can just give you 30 more seconds.

[00:52:28] Speaker 07:
Thank you, because that's all I needed.

[00:52:30] Speaker 07:
Obviously, we asked that this court reverse the dismissal.

[00:52:35] Speaker 07:
We also ask that this court find that Mr. Thompson has in fact proved a violation of his due process rights and in that regard that is merely reiterating what this court has already held.

[00:52:50] Speaker 07:
We ask this court to find as well that Mr. Thompson has proved the quantum of his lost wages damages, evidence which Mr. Thompson has presented never with any substantive refutation.

[00:53:05] Speaker 07:
We ask that this court find that Mr. Thompson has proved his entitlement to having his pension recomputed by the Office of Management and Budget.

[00:53:15] Speaker 07:
We ask that this court remand the matter to the district court for determination of emotional distress damages and attorney's fees.

[00:53:22] Speaker 07:
And finally, we ask that this case be reassigned when it's remanded.

[00:53:28] Speaker 07:
Thank you, Your Honors.

[00:53:29] Speaker 06:
Thank you very much.

[00:53:29] Speaker 06:
The case is submitted.