[00:00:02] Speaker 03:
Case number 14 at 5283, James N. Blinn, third, appellant versus Jay Charles Johnson.

[00:00:08] Speaker 03:
Mr. Keith for the appellant, Mr. Salzman for the appellate.

[00:00:47] Speaker 02:
My name is Philip Keith.

[00:00:50] Speaker 02:
I'm representing Mr Bland in this appeal and I'd like to reserve four minutes for rebuttal.

[00:00:56] Speaker 02:
There are a lot of different issues here.

[00:01:00] Speaker 02:
I'll try to focus on what I perceive is most important, but obviously the court will interrupt if I'm passing by anything.

[00:01:07] Speaker 02:
The first count has to do with what's called administrative leave, which is barring somebody from the workplace but continuing to pay them.

[00:01:17] Speaker 02:
And the issue is what must be pled?

[00:01:20] Speaker 02:
under Svirkovits versus Sarima.

[00:01:24] Speaker 02:
And the starting point on that is Svirkovits abrogated the Sixth Circuit case Jackson versus Columbus, which had dismissed a complaint for failure to sufficiently plead an adverse personnel action.

[00:01:41] Speaker 02:
What Svirkovits did in principle is say no heightened pleading standard for Title VII cases.

[00:01:51] Speaker 02:
The Seventh Circuit in Parrott versus Connorsville, which is in the blue brief at page 24, quotation from it, explains why being barred from the workplace, barred from performing your work, depending on the circumstances, can be injurious.

[00:02:11] Speaker 02:
That is something that can be remedied under Title VII.

[00:02:16] Speaker 02:
The second circuit case of Joseph V. Levitt, which the agency relies on, explains that if the person is put off the premises by the exercise of a pre-existing general policy of if this happens, that is, let's say, an investigation begins, then automatically the person is taken off the payroll.

[00:02:44] Speaker 02:
The court says, well, that doesn't affect the terms and conditions of employment in the sense that being put off the payroll under those circumstances is a term and condition of employment.

[00:02:54] Speaker 02:
But we allege, in fact, that in fact, in this case, that the agency did not have a general policy of putting people off the payroll when it started the investigation.

[00:03:08] Speaker 01:
You mean off the premises or off the payroll?

[00:03:10] Speaker 02:
Because you're saying- I'm sorry, off the premises, Your Honor.

[00:03:14] Speaker 02:
And so that takes care of the general reason why courts find there's no violation of Title VII when somebody's put on administrative leave.

[00:03:32] Speaker 03:
You think it differs materially that we're talking about?

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Someone who has a job that requires a security clearance?

[00:03:42] Speaker 02:
Yes.

[00:03:43] Speaker 03:
And that's the nature of the investigation?

[00:03:46] Speaker 02:
In the context of Count 1, this is a pleading case.

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That was not a reason given by the agency for taking the action in this particular case.

[00:04:01] Speaker 02:
That's a summary judgment or trial issue.

[00:04:05] Speaker 02:
And that's most of what the government is saying here in their brief.

[00:04:08] Speaker 03:
I thought it was undisputed, though.

[00:04:10] Speaker 02:
Pardon?

[00:04:10] Speaker 03:
I thought it was undisputed that he... I realize the district court said 12b1, but I just want to be clear.

[00:04:17] Speaker 03:
That's what this case is all about.

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He held a job that required security clearance.

[00:04:26] Speaker 03:
But the involvement of many of the other accounts, the... And placing him on administrative leave with pay was in connection with investigating.

[00:04:39] Speaker 03:
whether he should get this security.

[00:04:41] Speaker 02:
If we had pled, and if the truth were, that the government said to him, we're putting you off the payroll because, I'm sorry, off the premises because there's been allegations which would affect your security clearance, then that would be what's in front of the court.

[00:05:00] Speaker 02:
All right.

[00:05:00] Speaker 02:
This is just something the government is saying, the government is saying the stated reason was

[00:05:07] Speaker 02:
And we're saying, no, that's not what the stated reason was.

[00:05:11] Speaker 02:
And that's the same thing on when they suggest that, well, it was a particularly egregious offense that he was charged with.

[00:05:22] Speaker 02:
If they produce an affidavit by the decision-makers saying that was the reason, then we have to deal with that.

[00:05:30] Speaker 02:
And that could be a reason to

[00:05:35] Speaker 02:
to do this, even though there's not a general rule.

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On count one, all we're asking is that he have an opportunity to prove that he was injured the same way as the plaintiff and parrot, and that the stated nondiscriminatory reason was untrue, was a pretext for discrimination.

[00:06:04] Speaker 02:
I want to jump to count four, which is the suspension without pay.

[00:06:13] Speaker 02:
The stated reason for suspending without pay was that he, as a result of the

[00:06:29] Speaker 02:
that he was unable to have access to classified information.

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Paragraphs 86 and 87 on Joint Appendix 16 and 17 expressly allege that management believed that he

[00:06:53] Speaker 02:
did not need access to classified information.

[00:06:57] Speaker 02:
And the analogy we use is you could be the truck driver needs a driver's license.

[00:07:05] Speaker 02:
But if someone with the title of truck driver is a warehouse man,

[00:07:10] Speaker 02:
then the suspension of his driver's license by the state doesn't affect his ability to do the job.

[00:07:16] Speaker 02:
These are fact questions.

[00:07:18] Speaker 02:
We take the risk that we do discovery and we find out that we're wrong or at least, you know, somebody says, yeah, I, you know, I'm his boss and

[00:07:31] Speaker 02:
Boy, some assignments would require access to classified information.

[00:07:38] Speaker 02:
It's our belief that the manager will testify consistent with our allegation.

[00:07:46] Speaker 02:
When this suspension happened, there was no foreseeable reason to have Mr. Bland have access to classified information.

[00:08:00] Speaker 02:
Uh, on the constitutional problem, the first and that should be decisive.

[00:08:10] Speaker 02:
The case of Fullman, um, held that the judge is required to give his reasons

[00:08:19] Speaker 02:
for denying a motion to amend under 59.

[00:08:26] Speaker 02:
And the benefit to us of that is that when the judge sits down to write out his reasons, he may well be persuaded by us.

[00:08:37] Speaker 04:
But it's the case that, in fact, your amendment doesn't change the legal picture.

[00:08:43] Speaker 04:
It doesn't.

[00:08:44] Speaker 04:
I'm sorry.

[00:08:45] Speaker 04:
It doesn't.

[00:08:48] Speaker 04:
Well, that's yes.

[00:08:51] Speaker 04:
Yes, your honor.

[00:08:57] Speaker 02:
I with respect suggests that it's more efficient actually for this.

[00:09:06] Speaker 02:
this panel to ask the good Judge Leon what his thoughts on that are in light of his current experience as a trial judge and the facts of the cases he has, which is deeper than can be put in a brief.

[00:09:25] Speaker 04:
There seem to be cases, including one of ours, which can be characterized as a case where a challenge

[00:09:36] Speaker 04:
connection with security clearances is distinguishable.

[00:09:44] Speaker 04:
That doesn't seem to be what the post-amendment complaint would reach.

[00:09:51] Speaker 02:
What we're trying to do is honor actually the language in

[00:10:04] Speaker 02:
In Ryan, it's quoted on page 17 of the grade brief, which quotes Webster v. Doe, where Congress intends to preclude judicial review of constitutional claims, its intent to do so must be clear.

[00:10:21] Speaker 02:
And we require this heightened showing in part to avoid the serious constitutional question that would arise if the federal statute were construed to deny any judicial forum for a colorable constitutional claim.

[00:10:35] Speaker 02:
That's that's the law.

[00:10:38] Speaker 02:
Um, and the I don't think it's open and shut that title seven evidences a intent to preclude judicial review of constitutional claims that cannot be remedied under title seven.

[00:10:59] Speaker 01:
What is the constitutional claim?

[00:11:01] Speaker 02:
Uh, race discrimination.

[00:11:04] Speaker 02:
equal protection under on amendment five.

[00:11:09] Speaker 01:
What's the authority that that federal employee can bring a race discrimination employment claim?

[00:11:18] Speaker 02:
Um, in federal court, uh, Brown V. G. S. A. Reflects that prior to title seven employees could do that.

[00:11:27] Speaker 02:
Um,

[00:11:28] Speaker 02:
The United Public Workers of America versus Mitchell, 1947, made clear that although there's not a constitutional right to public employment, there can't be, you know, invidious discrimination in making hiring decisions.

[00:11:49] Speaker 02:
So the question is, Brown said, because this can be remedied under Title VII, and you didn't bother to exhaust your administrative remedies under Title VII, you can't bring this case under the Constitution.

[00:12:06] Speaker 02:
Ethnic employees versus Library of Congress, if a action is not covered by Title VII, if there can't be a remedy under Title VII,

[00:12:17] Speaker 02:
Then your theory seems to wipe out even more.

[00:12:21] Speaker 02:
No, Your Honor.

[00:12:25] Speaker 02:
answer that two ways.

[00:12:26] Speaker 02:
First is what we can't have, but I hope this court is not sympathetic to, is interpreting Egan as wiping out all the cases on national security.

[00:12:38] Speaker 02:
All the cases like cafeteria workers or the more recent Guantanamo cases where it's a national security issue and the courts find it's justiciable even though we're

[00:12:55] Speaker 02:
dealing with the president's Title I responsibility to protect the national security.

[00:13:01] Speaker 02:
And that's what is the real problem is, how can the Egan theory, which was simple,

[00:13:11] Speaker 02:
the United States.

[00:13:13] Speaker 02:
The United States.

[00:13:13] Speaker 02:
Even self as nothing says nothing to do about this disability is saying the American Systems Protection Board doesn't have the statutory authority in the first place to even deal with clearances, and it's not in a position.

[00:13:26] Speaker 02:
To make judgments.

[00:13:28] Speaker 02:
Um the number even is.

[00:13:32] Speaker 02:
Premise

[00:13:38] Speaker 02:
clearances should be granted only when clearly consistent with the interests of national security.

[00:13:47] Speaker 02:
I hope the court won't interpret Egan as saying that in Guantanamo cases, for example, or any of these, all the president has to do is say,

[00:13:57] Speaker 02:
the benefit demanded by the prisoner or by the plaintiff will be granted only when consistent with the interests of national security or plainly consistent.

[00:14:13] Speaker 02:
On our side, we're trying to

[00:14:17] Speaker 02:
Again, respect what Ryan said.

[00:14:21] Speaker 02:
We have Title VII.

[00:14:23] Speaker 02:
We have a policy against discrimination.

[00:14:26] Speaker 02:
And we have a policy of protecting the national security.

[00:14:30] Speaker 02:
And how can these be merged?

[00:14:32] Speaker 02:
How can they both be respected?

[00:14:34] Speaker 02:
And that's the challenge.

[00:14:42] Speaker 02:
For example, it may be the furthest we can go

[00:14:47] Speaker 02:
in a constitutional claim is the court requiring the government to certify that the decision to deny the clearance was made by one of the experts that's described in Eagan.

[00:15:03] Speaker 02:
And if they certify that, the case is closed.

[00:15:08] Speaker 02:
the or we may have to go may be allowed to go far enough to insist that the government have to certify that the decision was actually made on the basis that the plaintiff cannot be trusted with classified material.

[00:15:27] Speaker 02:
But these are that's not a question that

[00:15:31] Speaker 02:
We may end up losing on the merits, but Egan can't, I suggest, cannot be construed as all of a sudden making non-justiciable challenges to constitutional violations.

[00:15:52] Speaker 02:
The rest I would rely on the brief.

[00:15:54] Speaker 03:
All right, thank you.

[00:15:56] Speaker 02:
Thank you, Your Honor.

[00:16:07] Speaker 03:
Good morning.

[00:16:08] Speaker 00:
Good morning.

[00:16:08] Speaker 00:
Thank you, Your Honor, and may it please the Court, Joshua Salzman on behalf of Secretary Johnson.

[00:16:14] Speaker 00:
Just at the outset, I want to emphasize that affirming the judgment below does not really require this Court to make any significant new law.

[00:16:23] Speaker 00:
This court's existing precedents, which the district court faithfully applied, squarely foreclosed a number of the arguments made in appellant's briefs.

[00:16:33] Speaker 00:
And to the extent that he's making arguments that aren't directly addressed by cases like Douglas versus Donovan and Ryan and Radigan too, those arguments don't present truly novel issues of law either, in the sense that they've been presented to other circuits, generally multiple other circuits, who considered them and found them to be without merit.

[00:16:52] Speaker 03:
We're in this circuit.

[00:16:55] Speaker 00:
Absolutely, Your Honor.

[00:16:56] Speaker 00:
But I would add that they've reached those conclusions in opinions that are very much in keeping with this court's precedents and would require only a moderate and logical extension of those precedents.

[00:17:09] Speaker 00:
But I'm well aware of that, Your Honor.

[00:17:12] Speaker 00:
As to count one, which is where I'll start unless the court is interested in having me... I was just reacting to your statement in the brief.

[00:17:20] Speaker 03:
that the government doesn't agree with a decision of this court.

[00:17:26] Speaker 03:
All right.

[00:17:27] Speaker 03:
I'm sure that's true.

[00:17:31] Speaker 00:
I'm not here to relitigate that issue, but I think that case law is, if anything, is squarely on point in the government's favor for this case.

[00:17:44] Speaker 00:
I think you're referring to Radigan 2, which pretty squarely forecloses Count 2 of the complaint, because Radigan 2 recognized that only a report of it was knowingly false

[00:17:56] Speaker 00:
could be the basis for an actionable claim.

[00:18:01] Speaker 00:
And here, not only was the report not knowingly false, Plaintiff himself concedes that in the complaint that he committed the crime in question, it was court-martialed for it.

[00:18:11] Speaker 00:
But I'd actually like to begin at count one, which is the administrative leave

[00:18:19] Speaker 00:
And much of the briefing here was directed to the question of whether or not an adverse action is, in fact, a necessary requirement and an essential ingredient of a Title VII claim.

[00:18:34] Speaker 00:
And the answer is, it is, in every single case.

[00:18:37] Speaker 00:
And Douglas v. Donovan makes that clear.

[00:18:39] Speaker 00:
even if you have direct evidence of discrimination, if it's not something that is a sufficiently tangible or concrete injury, if it doesn't meet the Douglas versus Donovan standard and half a dozen other cases of this court which reaffirm that standard, then you do not have an actionable claim.

[00:18:55] Speaker 00:
And unsurprisingly, as a result, this court has upheld, at the motion to dismiss stage, the dismissal of complaints that didn't allege a sufficient adverse employment action.

[00:19:07] Speaker 00:
It's not cited in the briefs, but I'd refer Your Honors to a case called Baird v. Gottbaum, 662 F3 1246.

[00:19:16] Speaker 00:
which was the 2011 case, so this is post-swerblitz, and the court recognized that because there was no adequate adverse action alleged in the complaint, then the plaintiff there had met his obligations under Rule 882,

[00:19:34] Speaker 00:
to show entitlement to relief.

[00:19:36] Speaker 01:
So that count one then boils down to the question of... Did you advise your colleague that you were going to cite this case?

[00:19:45] Speaker 00:
I regret that I did not, Your Honor.

[00:19:47] Speaker 01:
You really should, you know, before argument, advise the other side and give them a copy of the case before you raise it, spring it on them as oral argument.

[00:19:57] Speaker 00:
I I that that's well taken your honor and I apologize for that but what I would add is that this is merely an example of a phenomenon that's very much a point arguing our brief I don't think this stuff stick to what you argued in your brief of course your honor and what we argued in our brief.

[00:20:13] Speaker 03:
Unless there's a Supreme Court case.

[00:20:15] Speaker 03:
that qualifies or overruled something we did.

[00:20:19] Speaker 00:
No.

[00:20:20] Speaker 00:
But what the heart of our brief is on issue one is that regardless of whether it's at the motion to dismiss stage or the summary judgment stage, the plaintiff bears the burden of alleging an adverse employment action order to state a cognizable Title VII claim.

[00:20:37] Speaker 00:
And as numerous circuits have held,

[00:20:43] Speaker 00:
being put on administrative leave.

[00:20:45] Speaker 00:
That's a temporary intermittent action that's taken while an employer decides what further action to take.

[00:20:52] Speaker 00:
The employee retains their full salary, their full benefits.

[00:20:56] Speaker 00:
There's no, in the words of Douglas versus Donovan, there's no tangible injury that results from being placed on administrative leave.

[00:21:06] Speaker 03:
So any allegation of racial discrimination is irrelevant?

[00:21:10] Speaker 00:
When the alleged harm is being placed on administrative leave during an investigation, yes, I think that's consistent with the holdings of the 4th and 6th.

[00:21:22] Speaker 04:
The assumption is it's for a comparatively brief period of time, right?

[00:21:26] Speaker 00:
Right, and this is in keeping, very much in keeping with, as we note in our briefs, this was a three and a half month period, July 1 to October 14, that's exactly almost identical to the lengths of the suspensions at issue in the 5th, 6th, and 7th Circuits.

[00:21:40] Speaker 03:
I know you want us to write broadly, but let's just stick to this case.

[00:21:44] Speaker 00:
Of course.

[00:21:46] Speaker 00:
And to be clear, Your Honor.

[00:21:47] Speaker 03:
So your answer is an employee cannot show any

[00:21:54] Speaker 03:
Adverse employment action if he is treated in a racially disparate manner because it's just for a short period.

[00:22:07] Speaker 00:
Well, I think under Douglas versus Donovan and several other cases, yes, you have to allege an adverse employment action which has a non-specular.

[00:22:16] Speaker 03:
I'm being treated differently.

[00:22:18] Speaker 03:
because of my race.

[00:22:20] Speaker 03:
That's the only reason I'm on administrative leave.

[00:22:23] Speaker 00:
But it's got to be a change in the terms or conditions of employment.

[00:22:27] Speaker 03:
So it's irrelevant.

[00:22:28] Speaker 03:
I just want to be clear what the government's position is.

[00:22:31] Speaker 00:
I think it's this court's position in Douglas versus Donovan that if somebody received a worse performance review on account of their race, and there was a memo in the file that said that the worst performance review was on account of a person's race, this court's precedent says that that's not actionable.

[00:22:48] Speaker 00:
So I'm not asking the court to make any new law here.

[00:22:52] Speaker 00:
I think this is very much a principle that's already established in this circuit as to that.

[00:22:57] Speaker 00:
So then the only incremental step I'm asking this court to take is to recognize that administratively, which is just during the duration of investigation, especially in a context like this, where you're talking about somebody who's a senior agent in the office of the chief security officer and has been accused of a crime of dishonesty,

[00:23:17] Speaker 00:
that he's retaining his full salary, full benefits, no economic injury whatsoever.

[00:23:22] Speaker 00:
And they're saying, we don't want you to come into work for a few months while we figure things out.

[00:23:26] Speaker 00:
And we're going to put things in a holding pattern until we can figure out what to do next.

[00:23:30] Speaker 03:
And this is where he does have an allegation of knowing falsity.

[00:23:33] Speaker 00:
He does have an allegation of knowing falsity.

[00:23:36] Speaker 00:
That's right.

[00:23:37] Speaker 00:
But that we've, at least for purposes of this appeal, argued this in terms of sort of a more generic Title VII lack of an adverse employment action as opposed to... I know, you're a senior official and you're placed on administrative leave on the basis of false accusations.

[00:23:59] Speaker 03:
And the only reason this happens is because of your race.

[00:24:03] Speaker 03:
That's his allegation.

[00:24:05] Speaker 00:
His allegation is that he was accused by the people who made the accusations knew they were false.

[00:24:13] Speaker 00:
He was accused of corruption.

[00:24:15] Speaker 03:
So your answer is yes.

[00:24:17] Speaker 00:
My answer is yes.

[00:24:18] Speaker 00:
You can put somebody, an agency is, and any employer actually, can put somebody on administrative leave during the pendency of an investigation.

[00:24:26] Speaker 03:
For a short time.

[00:24:27] Speaker 00:
As I said, this is what half a dozen circuits have already concluded.

[00:24:34] Speaker 04:
If there are no more questions on count one, I can switch to counts two to five.

[00:24:47] Speaker 00:
Certainly, Your Honor.

[00:24:50] Speaker 00:
So I think, as Your Honor suggested during plaintiff's counsel's argument, I think what plaintiff is asking here is for an end run around Egan and that if his arguments about sort of the scope of the constitutional claims that could be brought here

[00:25:08] Speaker 00:
were accepted.

[00:25:09] Speaker 00:
I think it would really render this court's decisions in Ryan and Bennett and Foote to be really sort of meaningless.

[00:25:17] Speaker 00:
As the 10th Circuit said, when confronted with a similar argument, it would make Egan hardly worth the trouble.

[00:25:23] Speaker 03:
Did the district court say this?

[00:25:26] Speaker 00:
Did the district court say this?

[00:25:28] Speaker 03:
No, Your Honor, what the district court said was... Did the district court have a legal obligation to explain his reasoning?

[00:25:34] Speaker 00:
I think this court's precedents in Fomen v. Davis do suggest that when you're denying rule 59 e-motion, it's generally appropriate to offer a reason of that.

[00:25:45] Speaker 03:
So, you've got a lot of qualifiers in there, but the statement is pretty straightforward.

[00:25:51] Speaker 03:
And so the question I thought that Judge Williams had asked counsel was, does that requirement apply where, arguably, this court could determine

[00:26:04] Speaker 03:
that any constitutional allegation would be futile.

[00:26:10] Speaker 00:
I think this court absolutely can decide this pure issue of law that's been fully briefed here.

[00:26:16] Speaker 00:
Bowman versus Davis makes clear that futility is a completely legitimate reason not to allow amendment of the complaint.

[00:26:23] Speaker 00:
This court needs to find an abuse of discretion under 59E in order to remand.

[00:26:29] Speaker 00:
And to the extent that the complaint was futile, maybe the district court didn't spell this out, but to the extent that this court, with full briefing, can recognize that a pure issue of law

[00:26:39] Speaker 00:
would be resolved in the defendant's favor.

[00:26:41] Speaker 04:
In fact, isn't the relationship between Egan and Webster obscure at this point?

[00:26:48] Speaker 00:
I see, though, there are absolutely circumstances where the relationship is difficult to parse.

[00:26:53] Speaker 00:
I think on facts like these, it's very clear.

[00:26:57] Speaker 03:
No, but if he gets to amend his complaint, can you represent to this court that there is no complaint he could file?

[00:27:08] Speaker 03:
that could go forward.

[00:27:10] Speaker 00:
Well, I can tell you the complaint that he asked for leave to file.

[00:27:14] Speaker 00:
He didn't spell it out particularly well in his 59E motion.

[00:27:19] Speaker 00:
But what he essentially said was, I'm not going to allege any new theories, per se.

[00:27:25] Speaker 00:
What I'm going to do is take the same facts and the same allegations and re-denominate them as Fifth Amendment claims, as opposed to Title VII claims.

[00:27:35] Speaker 03:
So on remand, he hands it over to Professor Exit.

[00:27:39] Speaker 03:
Georgetown University who drafts an amended complaint.

[00:27:45] Speaker 03:
I just want to know how far we're going here.

[00:27:48] Speaker 03:
This professor takes into account this fuzzy area and comes up with a complaint.

[00:27:55] Speaker 00:
The fuzzy area doesn't extend to claims governed by Title VII.

[00:27:59] Speaker 00:
That's what the Ninth Circuit recognized in Brazil, the Fifth Circuit recognized in Paris.

[00:28:03] Speaker 03:
Is it an open question in this circuit?

[00:28:06] Speaker 00:
This circuit has not spoken to that question specifically.

[00:28:10] Speaker 03:
I just want to be clear about this.

[00:28:13] Speaker 03:
He could file such a complaint.

[00:28:17] Speaker 00:
I think Brown versus GSA is so squarely on point.

[00:28:20] Speaker 00:
It says that Title VII is the exclusive remedy for claims of racial discrimination and employment by federal employees.

[00:28:29] Speaker 00:
So I don't think it's really an open question in this circuit.

[00:28:32] Speaker 00:
But this court has connected that.

[00:28:33] Speaker 03:
Should the district court have spelled this out so counsel could respond?

[00:28:38] Speaker 03:
I mean, I think these are interesting arguments, and maybe they're winning arguments.

[00:28:43] Speaker 00:
I think, as I said, I recognize the district court did not do that here.

[00:28:48] Speaker 00:
I think that this is a pure question of law that this court is well positioned to answer.

[00:28:53] Speaker 00:
I think, frankly, it's a relatively easy question of law in light of Brown versus GSA on the facts here.

[00:28:59] Speaker 03:
That there is no complaint that could be filed.

[00:29:05] Speaker 03:
that would be justiciable as a matter of law.

[00:29:09] Speaker 00:
I am not saying, Your Honor, that there is no constitutional claim that could be justiciable.

[00:29:14] Speaker 00:
I think there is no constitutional end-run around the improclusion of Title VII.

[00:29:20] Speaker 00:
I understand.

[00:29:20] Speaker 00:
I thought it was more narrowly.

[00:29:22] Speaker 04:
That's right.

[00:29:26] Speaker 04:
amended complaint here doesn't bring it outside of EGUN.

[00:29:34] Speaker 00:
I think that's right, Your Honor, and that's all the support would need to say.

[00:29:37] Speaker 03:
So in the Rule 59 context, unlike Judge Wilkins can correct me, when you're moving to amend your complaint and you're supposed to attach a proposed amended complaint so the district court can look at it and see whether it be futile

[00:29:56] Speaker 03:
worth granting the motion.

[00:29:59] Speaker 03:
Do any of those requirements apply in the Folman context?

[00:30:06] Speaker 03:
So, I'm not entirely sure I follow your... Well, if he gets, if he's allowed to file an amended complaint, and if he could file a complaint that was justiciable.

[00:30:24] Speaker 00:
Yes, Your Honor.

[00:30:26] Speaker 00:
Certainly, in order for his 59E motion to have any merit, he had an obligation in that 59E motion to show that he had an alternative set of pleadings that he could successfully amend the complaint, have a viable claim.

[00:30:45] Speaker 03:
And he didn't do that here.

[00:30:47] Speaker 00:
So I think to the extent that he did, all he said was, essentially, I should be allowed to proceed under the Constitution to allege essentially the same – to bring these same allegations, I'd say that that is – I mean, the file was specific.

[00:31:05] Speaker 04:
proposed complaint.

[00:31:06] Speaker 04:
It's not just an abstract discussion, right?

[00:31:10] Speaker 00:
I don't think there was a proposed second amended.

[00:31:13] Speaker 00:
My recollection, Your Honor, is that there was a... Well, Dr. 29 seemed to have one attached to it.

[00:31:18] Speaker 00:
Oh, I'm sorry, Your Honor, I misspoke.

[00:31:21] Speaker 00:
But I don't think that this amended complaint would survive under Brown versus GSM.

[00:31:31] Speaker 00:
I'm happy to speak to count four briefly since the court heard argument on that or any of the other issues, but otherwise I'm perfectly satisfied to rest on my brief.

[00:31:40] Speaker 03:
Thank you.

[00:31:41] Speaker 00:
Thank you, Your Honor.

[00:31:42] Speaker 03:
Council for Appellant.

[00:31:49] Speaker 02:
Thank you, Your Honor.

[00:31:51] Speaker 02:
We've talked about theories that would render Egan, nullify Egan.

[00:31:58] Speaker 02:
The theory that the district court does not have to explain its reasons for refusing a foment of complaint, if it's clear enough to the circuit that it would be futile, renders Fulman

[00:32:17] Speaker 02:
negates it.

[00:32:22] Speaker 02:
Essentially what the government is saying is that the district court can literally punt the question of whether the amended complaint is decisible just by not giving any reasons whatsoever.

[00:32:38] Speaker 01:
But we've said lots of times that we won't find an abuse of discretion even where the district court doesn't give reasons if we can discern the reasons from the record.

[00:32:51] Speaker 01:
And if we can look at the complaint and say that it's futile, then we can discern the reasons from the record.

[00:32:58] Speaker 02:
I don't think it's a good policy if that's what the court does.

[00:33:03] Speaker 02:
This court's job is to, in any number of times, is to explain reasons for its decision so that the Court of Appeals can determine whether it's an abuse of discretion.

[00:33:19] Speaker 02:
It's just not a good policy to encourage this sort of action.

[00:33:25] Speaker 02:
On the count one, one of the things that the government points out is that these courts look at the facts and make a judgment.

[00:33:37] Speaker 02:
Oh, this is three and a half months.

[00:33:39] Speaker 02:
That's not, the guy wasn't hurt.

[00:33:42] Speaker 02:
That's not a violation of Title VII.

[00:33:43] Speaker 02:
All these cases that we knew about were review summary judgment.

[00:33:48] Speaker 02:
And I would like permission to file a short reply brief after I look at the Baird case.

[00:33:55] Speaker 02:
So otherwise, we're stuck with something that we don't have a chance to talk about.

[00:34:03] Speaker 04:
Could you just state your theory as to why the post amendment complaint presents a good reason for finding a constitutional substitute outside of Eagan?

[00:34:21] Speaker 04:
I mean, this constitutional substitute, not any old constitutional substitute.

[00:34:28] Speaker 02:
The bedrock is the question of whether the amended complaint is justiciable.

[00:34:36] Speaker 02:
The Supreme Court and this court repeatedly say that national security questions are justiciable, regardless of the likelihood of the plaintiff getting everything he wants.

[00:34:52] Speaker 02:
Egan did not say that this issue was non-justiciable.

[00:34:59] Speaker 02:
It's a pretty big thing to go from the MSPB doesn't have authority to decide this question to A, here is a constitutional plain which used to be justiciable and isn't anymore.

[00:35:15] Speaker 02:
and that the President, by executive order, can make all national security claims non-justifiable.

[00:35:23] Speaker 04:
I think that's something that has to be thought through, and I don't think rejecting the political claim would require going that far.

[00:35:33] Speaker 04:
It would require saying that there is nothing in this

[00:35:37] Speaker 04:
Well, again as a matter of first impression,

[00:35:56] Speaker 02:
I don't think Eagan says that a district court cannot require the government to certify that the facts that Eagan relied on are the facts, for example, that the decision to suspend the clearance was made by someone who was, you know, the experts in classification or security clearances.

[00:36:23] Speaker 02:
Rather than, as we allege, it was made as a favor to line management.

[00:36:31] Speaker 02:
That's what we, I think the district court... Does the proposed amended complaint raise this question of certification?

[00:36:46] Speaker 02:
Yes and no, no, I don't think so.

[00:36:48] Speaker 02:
No, if I recall, and I'm sorry I didn't look at it before today, I think we just added that's why all this stuff violates detection.

[00:37:00] Speaker 02:
But the, well, of course it does, Your Honor.

[00:37:04] Speaker 02:
Yes, yes, fine.

[00:37:07] Speaker 02:
Count.

[00:37:10] Speaker 02:
Three of the complaint alleges that the decision was made as a favor to management.

[00:37:17] Speaker 02:
It was not made by the people or in the process described by Egan.

[00:37:25] Speaker 02:
And again, it's a complaint, it's not a brief.

[00:37:30] Speaker 02:
And we are still governed by Svirkovits.

[00:37:37] Speaker 02:
Well, at least I felt we were.

[00:37:40] Speaker 02:
And we have to state basic facts that put the defendant on notice and why we think it's a Title VII violation.

[00:37:49] Speaker 02:
But we don't have to do our summary judgment memo in the form of a complaint.

[00:37:56] Speaker 02:
But those issues are presented in a complaint.

[00:38:00] Speaker 02:
That is the factual allegations.

[00:38:04] Speaker 02:
Thank you.

[00:38:04] Speaker 03:
Thank you.

[00:38:05] Speaker 03:
We'll take the case under advisement.