[00:00:01] Speaker 00: Case number 14 as 5285, Lawrence Niski, appellant, versus J. Charles Johnson, U.S. [00:00:08] Speaker 00: Department of Homeland Security. [00:00:09] Speaker 00: Mr. Rosenthal for the uniques pariah, Mr. Trong for the appellee. [00:01:03] Speaker 05: Good morning. [00:01:04] Speaker 01: Good morning. [00:01:05] Speaker 01: Thank you, your honors. [00:01:06] Speaker 01: My name is Thomas first from University of Georgia Appellate Clinic appointed by this course and on behalf of Mr Lawrence Niski. [00:01:12] Speaker 05: Are you not Mr Rosenthal? [00:01:15] Speaker 01: No, you're not. [00:01:16] Speaker 01: I'm Thomas Birch. [00:01:17] Speaker 01: I'm the supervisor of the Appellate Clinic. [00:01:19] Speaker 01: Today, one of our students, Mr Matt Rosenthal, will argue the case on her behalf and I'll be sitting at council table. [00:01:24] Speaker 05: I'm sorry. [00:01:24] Speaker 05: I apologize. [00:01:25] Speaker 05: I jumped again. [00:01:25] Speaker 01: That's okay. [00:01:26] Speaker 01: Thank you very much. [00:01:34] Speaker 05: All right, Mr. Rosenthal. [00:01:36] Speaker 03: Thank you, Your Honor. [00:01:37] Speaker 03: It may please the court. [00:01:39] Speaker 03: My name is Matt Rosenthal, and I represent the appellant in this case, Mr. Lawrence Nisky. [00:01:43] Speaker 03: The district court should not have granted the motion to dismiss for two reasons. [00:01:48] Speaker 03: First, Nisky alleges in his complaint that he satisfied the timely contact requirement after each adverse employment action. [00:01:55] Speaker 03: And second, the agency should be stopped from asserting an exhaustion offense because of its two clear errors in violation of federal regulations. [00:02:04] Speaker 03: Niski alleges that he satisfied the timely contact requirement on several occasions. [00:02:09] Speaker 03: First, in August 2002, he complained to his supervisors about racially discriminatory leave policies in his department. [00:02:16] Speaker 03: In September 2002, he contacted Allison Stafford, an EEO counselor in the agency, to complain that his security clearance suspension was rooted in racial discrimination and retaliation. [00:02:28] Speaker 03: In October 2002, he sent a letter to the Washington EEOC office. [00:02:33] Speaker 03: In 2006 and 2007, after security clearance was revoked and after he was removed, Niski wrote letters to various agency officials who were logically connected to the EEO process to convey his intent to pursue a race discrimination complaint. [00:02:48] Speaker 05: What's your definition of logically connected to the EEO process? [00:02:51] Speaker 03: This court and the EOC have both identified two strains of agency officials who are largely connected to the EO process. [00:03:00] Speaker 03: The first is agency officials who deal with civil rights and employment matters in the agency, such as one example is the director of civil rights in the USDA. [00:03:11] Speaker 05: And the second strain of officials are the officials who took the- If you go back, you can see that the folks that he wrote to, the Zawadni and [00:03:21] Speaker 05: Williams did not qualify under that first responsible for civil rights. [00:03:26] Speaker 03: Yes, Your Honor. [00:03:27] Speaker 05: OK, so we don't have that one in this case. [00:03:29] Speaker 03: Well, Nicole Heiser, he did write a letter to her. [00:03:32] Speaker 03: And she was the general counsel for labor and employment, which we argue that would be logically connected to the EEO process because she deals with, she's an attorney who deals with employment matters which would involve the EEO process, discrimination complaints such as that. [00:03:50] Speaker 05: So you think Nicole Heiser fits under that first category? [00:03:53] Speaker 03: Yes, Your Honor. [00:03:54] Speaker 05: And the other two officials... Are there any cases holding that someone with her position, because she didn't have an EEO title, she was essentially the employment person. [00:04:02] Speaker 03: Uh, no, your honor. [00:04:03] Speaker 03: There are any cases that specifically state, uh, general counsel for labor and employment. [00:04:08] Speaker 03: However, uh, and clue will be small. [00:04:10] Speaker 03: The district court for District Columbia noted that, uh, it that the reason that there's a logically connected person's exception is because it's not supposed to keep someone like Mr Niski who's not familiar from the process from being able to get review of their case because they [00:04:24] Speaker 05: He's plenty familiar with the process, because the first time back in September 2002, he went marching straight to the EEO counselor. [00:04:31] Speaker 05: He knew, and he'd already talked to the EEO counselor. [00:04:34] Speaker 05: And the EEO counselor said, let's see what happens when you have your final revocation. [00:04:37] Speaker 05: He had the final one, and he didn't go back to the EEO counselor. [00:04:40] Speaker 03: Well, yes, Your Honor. [00:04:42] Speaker 03: And Ms. [00:04:43] Speaker 03: Stafford violated the regulations when she told him to wait and come back, because 29 CFR. [00:04:48] Speaker 05: She very well may have, but the event she said wait for has happened. [00:04:53] Speaker 05: And he knows who the EEO person is for that dispute, and he didn't go back to her. [00:04:58] Speaker 05: He instead wrote to, you know, General Counsel is a pretty high-level official. [00:05:04] Speaker 03: Well, yes, your honor. [00:05:06] Speaker 03: And that was almost four years later when they finally took the next action. [00:05:10] Speaker 03: And in the interim, his department had been transferred from the Department of Defense to Homeland Security. [00:05:16] Speaker 03: So it was reasonable for someone in his situation to, he probably, he did not know who the EEO counselor would be in an agency he never worked in. [00:05:24] Speaker 06: So he- Would that be hard to find out? [00:05:28] Speaker 03: I'm not sure, Your Honor. [00:05:31] Speaker 03: However, given the fact that he was responding to the officials who were writing to him, they were the ones taking these final actions, that he was responding to the only people he likely knew in the new agency, in the Homeland Security. [00:05:46] Speaker 03: And these individuals would be logically connected to the EEO process because they were the officials who- When he was transferred, it wasn't like this was right after he was transferred. [00:05:55] Speaker 05: Three years elapsed between [00:05:57] Speaker 05: when he says he was told that everything was being transferred to DHS and then when he wrote these letters. [00:06:03] Speaker 03: Yes, Your Honor. [00:06:05] Speaker 03: I think it's important to remember that Allison Stafford violated federal regulations the first day. [00:06:10] Speaker 03: He approached her the same day that his security clearance was suspended, and he satisfied his obligations under the regulations by doing that. [00:06:17] Speaker 03: However, she violated the regulations by telling him to wait, because that, as the district court noted, is quite contradictory to federal regulations. [00:06:25] Speaker 03: This entire ordeal would not have happened but for this violation of the regulations. [00:06:29] Speaker 03: For all we know, this was a genesis of all the complications that [00:06:33] Speaker 06: But she gave him a timing instruction, which then didn't follow, at least it didn't follow in the strict sense, right? [00:06:44] Speaker 06: Because there wasn't a final replication, and he didn't find her equivalent in DHS. [00:06:56] Speaker 03: First, Your Honor, is that he wrote to officials who we argue are logically connected to the EEO process, which would satisfy his contact requirement. [00:07:05] Speaker 03: Even though he didn't go to an EEO counselor after the next actions were taken, he contacted individuals who satisfy this requirement. [00:07:15] Speaker 04: But isn't there two parts of that, if that's gonna satisfy his exhaustion requirement, that he contact people who are logically connected to the decision and that he continued to press his discrimination claim as such? [00:07:28] Speaker 04: I mean, for example, when he went to the MSPB, in retrospect, he said, oh, that was a mixed case, but he didn't act. [00:07:36] Speaker 04: consistently with that characterization because he didn't go to the federal circuit to appeal the MSPB decision. [00:07:44] Speaker 04: So it's a little hard to see that he continued or really ever pressed in an administrative forum the discrimination prong of his claim even after it must be obvious to him that the action that Alice and Stafford referred to had in fact now [00:08:07] Speaker 03: Yes, sir. [00:08:08] Speaker 03: First, as to the MSPB, the agency had an obligation under 29 CFR 1614302B at the moment that the MSPB declined jurisdiction over his discrimination complaint that the agency had to notify him of his right to contact an EEO counselor, which it did not do. [00:08:29] Speaker 04: The question is, did they really have reason to believe that he was pressing a discrimination claim there? [00:08:34] Speaker 03: Yes, Your Honor. [00:08:34] Speaker 03: First, given the stage of the proceedings, the motion is dismissed, we would construe his factual allegations as true, and that he alleges in his complaint that he put the MSPB and the various officials he wrote on notice of his discrimination complaint. [00:08:51] Speaker 03: It's important because, for example, there are communications that could be out there that we don't have access to, where he could have addressed his discrimination complaints that we don't have access to, such as in his letter to Sally McDonald, he lists [00:09:09] Speaker 03: six or seven different letters and we only have access to three of those. [00:09:12] Speaker 03: We also don't have access to the briefs filed with the MSPB. [00:09:16] Speaker 03: So at this stage of the proceedings, we would construe that as true since we don't have access to a complete set of facts. [00:09:22] Speaker 03: And he also said that he provided the MSPB and the different officials he wrote to with complete access to the facts. [00:09:30] Speaker 03: They would likely have access to the case file from when he was fired and when he first contacted Allison Stafford. [00:09:37] Speaker 03: And also, in his letters, he mentions discrimination, harassment, disparate treatment, prohibited personnel practices, which the first prohibited practice is [00:09:48] Speaker 03: discrimination on the basis of a protected basis. [00:09:52] Speaker 03: So someone such as Nicole Heizer, who's a lawyer for employment, would see this and realize that he's raising a race discrimination complaint, especially given the fact that he's a lay individual who's not trained in legal jargon. [00:10:05] Speaker 04: And he's not represented at that time? [00:10:07] Speaker 03: At which time? [00:10:09] Speaker 04: Well, he was represented up to a point, and then his lawyer, I know there was an issue in the case, his lawyer, [00:10:17] Speaker 04: stop representing him? [00:10:19] Speaker 03: That's true, Your Honor. [00:10:20] Speaker 03: And when was that? [00:10:22] Speaker 03: His lawyer stopped representing him when his security clearance was appealed to the, within the agency, and that's when he missed the hearing for that and his lawyer stopped the hearing. [00:10:33] Speaker 05: When did the lawyer start representing him, I think is the question. [00:10:36] Speaker 05: When did he start representing? [00:10:38] Speaker 03: I'm not sure if that's in the record, Your Honor. [00:10:43] Speaker 03: And the purpose of the exhaustion requirement is for the agency to be able to be put on notice of a discrimination complaint against them. [00:10:52] Speaker 03: This court in Congress have noted that it's not supposed to be a procedural labyrinth to keep individuals out of from getting meaningful review. [00:11:00] Speaker 03: And in this case, Niski tried diligently over the course of this matter to let the agency know that he had complaints of racial discrimination, and the agency violated its own internal regulations twice. [00:11:11] Speaker 05: So the MSPB decision is final in February 2008. [00:11:15] Speaker 05: Yes, Your Honor. [00:11:17] Speaker 05: And there was at the end of that decision instructions on what to do to appeal that decision. [00:11:22] Speaker 05: And he didn't do anything for, it looks like about 20 months before he contacted an EEOC office. [00:11:28] Speaker 05: So what do we do with that 20-month gap there? [00:11:31] Speaker 05: He was told what to do and didn't do anything. [00:11:33] Speaker 03: Your Honor, the agency did not follow their obligations at that point in giving him guidance on how to proceed from there. [00:11:40] Speaker 03: The agency has a burden under the regulations after the MSPB declines jurisdiction to give him notice of his right to contact an EEO counselor [00:11:50] Speaker 03: They did not do that in this case. [00:11:52] Speaker 05: Was he diligent to do nothing for 20 months? [00:11:55] Speaker 03: Uh, he, he tried to, he, he, he appealed his case to the MSPB, and he was left without guidance in knowing what to do after the MSPB declined jurisdiction. [00:12:05] Speaker 03: So it was the agency who did not follow their obligation, and that he attempted, he attempted to pursue his claim, but he was left without guidance in this complicated administrative scheme. [00:12:14] Speaker 05: Well, but no, he figured out, he, he, he decided to contact the EEOC, but it took him 20 minutes to, 20 minutes, excuse me, 20 months to, uh, 20, 21 months before he did that. [00:12:25] Speaker 03: Yes, Your Honor. [00:12:27] Speaker 03: The time gaps, first is that he contacted the agency after each action was taken by the agency. [00:12:33] Speaker 03: For example, after security clearance was finally revoked and determined. [00:12:38] Speaker 05: I got you all the way up to the MSPB. [00:12:40] Speaker 05: I understand your arguments up to that point. [00:12:41] Speaker 05: I'm trying to figure out what to do, though. [00:12:43] Speaker 05: This seems to be a really long period of inactivity, complete inactivity, by him after a decision that at least gave him some guidance on something to do. [00:12:55] Speaker 05: you didn't give them all the guidance. [00:12:57] Speaker 03: Yes, Your Honor. [00:12:58] Speaker 03: Well, the lack of guidance was contrary to the regulations, and he did not know how to pursue a discrimination complaint specifically instead of how to appeal the MSPB's decision. [00:13:09] Speaker 03: And second is that the time gap also existed because he was still waiting on a final action on his pension from the pension board. [00:13:17] Speaker 03: And [00:13:19] Speaker 03: This is also all negated by the fact that the entire time the agency did not seem to be emphasizing that time was of the essence. [00:13:26] Speaker 03: They told him, contrary to the law, to wait until further action was taken. [00:13:31] Speaker 03: It took nearly four years to actually revoke his security clearance and to remove him. [00:13:39] Speaker 03: at the end of all this, tell him, then tell him that, oh, you waited too long to start this claim, and that they created the impression that time did not matter, and violated the regulations in the interim while doing that, and that it's, and that for this reason, the agency should be a stop, because absent that, he would have never had an opportunity to have meaningful review of his claims. [00:14:01] Speaker 05: What do I do with the letter, it's on JA 8081, in October 2002, and that letter of memorandum? [00:14:08] Speaker 05: where they say you're now being suspended without pay. [00:14:13] Speaker 05: And then they have a whole paragraph free that tells them exactly what to do if you want to pursue an EEO claim. [00:14:22] Speaker 05: That was October 2002. [00:14:23] Speaker 05: He got this letter, told them exactly what to do, and he didn't do anything until 2006. [00:14:32] Speaker 03: Uh, Your Honor, in his complaint, Niske does note that he sent a letter to the Washington EEOC office in October 2002. [00:14:38] Speaker 03: Um, implicit from his, the pattern of his communications... That's not what he told me. [00:14:44] Speaker 05: This told him specifically where to go. [00:14:45] Speaker 05: Gave him a phone number. [00:14:48] Speaker 05: Two different places to go, none of which was the EEOC itself. [00:14:53] Speaker 03: Your Honor, it's... [00:14:54] Speaker 03: It's argument that it's from Miss Stafford's incorrect advice from day one that it is from that point that Mr Niski satisfied his burden under the regulations. [00:15:14] Speaker 03: No, Your Honor, because he does attempt to assert his claim after that by contacting other officials after final action was taken, which was the advice that Ms. [00:15:24] Speaker 03: Stafford gave him, where she said, wait until... And he's got written, post Ms. [00:15:28] Speaker 05: Stafford, you have the same agency, DOD, intervening and saying, okay, now there's been a change, another change, here without pay, and here's what you do. [00:15:40] Speaker 05: Equitable estoppel, I understand, is an important argument for you to be making here. [00:15:47] Speaker 05: Ms. [00:15:47] Speaker 05: Stafford shouldn't have done what she did, but it doesn't go on in perpetuity, does it? [00:15:53] Speaker 05: Doesn't this intervene and cut off that misconduct by the government, reset the clock, and they told him what to do? [00:16:02] Speaker 05: I think I didn't hear you saying this was not the right advice, and he ignored it. [00:16:06] Speaker 03: Well, Your Honor, if Ms. [00:16:08] Speaker 03: Stafford had given him the correct advice, then the suspension without pay period may never have happened. [00:16:14] Speaker 03: They may have reviewed his discrimination complaints and agreed that there was discrimination. [00:16:18] Speaker 06: It sounds to me as if you're turning equitable stoppable into permanent exoneration. [00:16:28] Speaker 03: No, Your Honor. [00:16:30] Speaker 06: Whatever the reverse is, exoneration. [00:16:33] Speaker 03: We would just argue that the agency should be, that estoppel here should mean that the agency cannot raise an exhaustion claim when they fail to follow regulations from day one. [00:16:44] Speaker 05: But even, all right, so day one, they failed to follow regulations, did something exactly you're not supposed to do. [00:16:50] Speaker 05: And the question here is, on day 20, another agency decision was made and they did, oh, we're gonna get it exactly right this time, here's what you should do. [00:17:01] Speaker 05: and your view is too bad, doesn't matter if once a month for the next seven years you go, here's what you should do, here's what you should do, because you gave bad advice the first time. [00:17:12] Speaker 03: Yes, Your Honor. [00:17:14] Speaker 03: Well, first, in regard to the letter on page 81, he does allege in his complaint that he wrote a letter to the Washington EEOC office in October 2002. [00:17:24] Speaker 03: So that's likely in response to this letter, and contacting an EEOC field office satisfies the contact burden. [00:17:32] Speaker 05: Under the regulations so and it goes the agency's EEO office, right? [00:17:36] Speaker 05: It wasn't the EEOC This is the Equal Employment and Cultural Diversity Office, which I assume was internal to the Defense Department Yes, your honor. [00:17:44] Speaker 05: So it was an EEO office not the EEOC itself [00:17:48] Speaker 03: Yes. [00:17:48] Speaker 03: However, even if he didn't contact the EEO office within the agency, contact with the field office, such as the Washington office that he wrote to, satisfies that contact. [00:18:00] Speaker 04: And it's a little hard to say from the complaint. [00:18:02] Speaker 04: I mean, this gives him two alternatives, one of which is Chief EEOCD Arlington, Virginia, that's in paragraph five on [00:18:12] Speaker 04: J.A. [00:18:13] Speaker 04: 81 and in his complaint in paragraph 16 he says to the EEOC and I mean I guess there's a question there maybe a fact question of which whether that matched up or whether that was reasonable but [00:18:26] Speaker 04: He was told to contact something that had EEOC in it, and he says he contacted something that he understood to be the EEOC. [00:18:33] Speaker 04: That's your position? [00:18:34] Speaker 03: Yes, Your Honor. [00:18:35] Speaker 03: And the burden is not, he doesn't, this court noted that the burden is not on him to follow the letter of the law, you know, rigidly. [00:18:44] Speaker 05: Does this complaint that's alleged, that's how I read that paragraph? [00:18:47] Speaker 03: Sorry, Your Honor. [00:18:49] Speaker 05: Does his complaint mention this October 2002 letter? [00:18:52] Speaker 03: No, it does not. [00:18:53] Speaker 05: So he doesn't even allege that that's how he read that letter is EEOC. [00:18:57] Speaker 05: Yes, Your Honor. [00:18:58] Speaker 05: So I can get people getting confused about EEO and EEOC. [00:19:00] Speaker 05: I can get that. [00:19:01] Speaker 05: But he doesn't even mention this letter and its guidance and how he reacted to it. [00:19:06] Speaker 03: Yes, Your Honor. [00:19:07] Speaker 03: He did not. [00:19:07] Speaker 05: So you don't have any basis for thinking that in this complaint, there's no allegation that there's any basis for thinking he thought he was satisfying this requirement. [00:19:15] Speaker 05: He just ignores this. [00:19:16] Speaker 03: Yes, Your Honor. [00:19:19] Speaker 03: If there are no further questions. [00:19:21] Speaker 05: Thank you. [00:19:23] Speaker 05: We'll give you some time on rebuttal. [00:19:36] Speaker 02: May it please the courts. [00:19:37] Speaker 02: My name is John Truong and I represent the Department of Homeland Security in this case. [00:19:43] Speaker 02: We ask that the court affirms that this court judgment in this case because as the court has pointed out, Mr. Niske has been more deleterious than diligent in pursuing his claims. [00:19:54] Speaker 05: I don't think that's a fair statement. [00:19:57] Speaker 05: I really don't think that's a fair statement. [00:19:59] Speaker 05: He did a lot. [00:20:01] Speaker 05: He was writing to everyone he could think of time and again and again, and the only time there's gaps is when somebody in the agency messed up. [00:20:11] Speaker 02: The records that we have in this case show that there were specific instructions from the agency after the September 02 issue. [00:20:20] Speaker 02: There, as the court pointed out, as your honor pointed out, in October of 2002, when the agency sent him the letter putting him on indefinite suspension, that letter gave him very specific information. [00:20:32] Speaker 05: That was going from suspension to suspension without pay, but he still wants to complain about [00:20:37] Speaker 05: this leave and this AWOL and suspending my security clearance, which is going to take my job away if that's what goes through. [00:20:44] Speaker 05: That's not what this decision in October 2002 was about. [00:20:48] Speaker 05: I'm still upset about those predicate things and as to those predicate decisions, I've been told to wait. [00:20:53] Speaker 05: until his final action by security clearance, which doesn't actually happen until 2006. [00:20:57] Speaker 05: And as soon as that happened, he started writing letters again. [00:21:02] Speaker 02: He did write letters to the three officials as alleged in the complaint, but [00:21:08] Speaker 02: The issue here is that he did not contact the EO office despite the fact that assuming the truth of the allegation where Ms. [00:21:16] Speaker 02: Stafford told him not to contact an EO office. [00:21:19] Speaker 02: And we're certainly assuming that at this stage. [00:21:20] Speaker 02: Okay, and then in 2006, he should have done that, that is to contact an EO office. [00:21:25] Speaker 05: I know, but he was no longer in that agency anymore. [00:21:28] Speaker 05: He couldn't go back to Ms. [00:21:29] Speaker 05: Stafford. [00:21:30] Speaker 05: And so he said, wow, who made this decision? [00:21:32] Speaker 05: They're the ones who made it. [00:21:34] Speaker 05: They're the ones that I should [00:21:35] Speaker 02: complain to that's right you know about that uh... s s t k and many complaints alleged that the agency didn't form him there was a transition agency are informed also informed him that the dhs will now continue to to be agency that we don't know that we don't know that anything in that communication identified who the eeo people are just said you're now working for dhs and we're gonna take this over [00:22:01] Speaker 02: That's correct. [00:22:03] Speaker 02: Do we have that letter? [00:22:04] Speaker 02: The minute complaint does not, and we don't have that letter in the record for purposes of this case. [00:22:10] Speaker 02: So that could matter, right? [00:22:11] Speaker 05: Well, it may matter. [00:22:12] Speaker 05: So there's a fact dispute as to whether he knew once he got over to DHS to whom he should complain once Ms. [00:22:21] Speaker 05: Stafford's triggering event occurred. [00:22:23] Speaker 02: Right, Your Honor. [00:22:25] Speaker 02: Let's take the discussion that we have in March of 2006, assuming that he did reach out to three different officials as he alleged in the amendment complaints in paragraph 26. [00:22:36] Speaker 05: And was also appealing the security denial, too. [00:22:39] Speaker 05: We know he did that, too. [00:22:40] Speaker 02: Well, that's one of the same, really. [00:22:43] Speaker 02: In paragraph 22, 23, and 24, he basically [00:22:48] Speaker 02: reached out to certain officials to appeal the – or to ask for a hearing to appeal the denial or the revocation of his security clearance. [00:22:57] Speaker 02: There is no allegations here that those communications contain any discrimination claims, or even [00:23:05] Speaker 02: And now, as I understand it, Mr. Niske is arguing that those officials are now somehow logically connected to the EEO process. [00:23:14] Speaker 02: But there's no evidence to show that those officials are actually connected to the EEO process. [00:23:18] Speaker 02: And furthermore, there's no evidence to show that Mr. Niske expressed an intent to file an EEO claim. [00:23:27] Speaker 05: Because in order to qualify for that- I thought he said, does he not mention discrimination in any of those letters? [00:23:32] Speaker 02: The only one that he mentioned, he may have raised was the one to Ms. [00:23:38] Speaker 02: Nicole Heiser. [00:23:40] Speaker 02: And that was after the removal. [00:23:42] Speaker 05: Nicole Heiser was the general counsel person. [00:23:44] Speaker 02: Ms. [00:23:45] Speaker 02: Nicole Heiser, she's an agency counsel. [00:23:47] Speaker 02: However, her job is actually to defend lawsuits filed by clients. [00:23:53] Speaker 05: OK, but we can spare him from understanding exactly what her job duties were. [00:23:57] Speaker 05: She's in charge of, she has an employment portfolio. [00:24:00] Speaker 05: And I remember Ms. [00:24:03] Speaker 05: Stafford said, wait for this decision. [00:24:05] Speaker 05: And so now I'm in this new agency, but this person's in charge of employment, so I'm going to write to this person and tell them that the security clearance decision was contaminated by discrimination. [00:24:15] Speaker 05: Why is that not sufficient? [00:24:16] Speaker 02: Two things, as I said, putting aside whether Ms. [00:24:20] Speaker 02: Heiser was representing the agency or anyone else who may have complained to her, the issue here is that in order to qualify as a person logically connected to the EEO counseling process, [00:24:31] Speaker 02: there has to be some evidence that Ms. [00:24:34] Speaker 02: Heiser herself is responsible for EEO counseling. [00:24:38] Speaker 04: But isn't the point that the exhaustion requirement is don't go running into court because maybe there's a way to work it out more informally. [00:24:48] Speaker 04: So within a week after being removed from his position, [00:24:54] Speaker 04: You know, Allison said, wait, wait to see what really happens with security clearance in the job. [00:24:58] Speaker 04: I mean, she took the position that the removal of security clearance wasn't an adverse employment action. [00:25:05] Speaker 04: So maybe he takes from that, OK, it's not how I lose my job. [00:25:09] Speaker 04: That's clearly an adverse employment action. [00:25:11] Speaker 04: Within a week of that, [00:25:13] Speaker 04: He turns around and he contacts Nicole Heiser, who is attorney advisor for labor employment at DHS, thinking, okay, I'm contacting a lawyer who does EEO stuff for my employer and surely if she's not the right person, she'll tell me where to go and we can work it out if that's possible. [00:25:32] Speaker 04: That's really not enough. [00:25:34] Speaker 02: But it's not, Your Honor, because in order to be logically connected to the EO process, the person to whom Mr. Nisky reached out to, or a brief person, has to have the responsibility of providing EO counseling or to provide the process itself, the counseling process itself. [00:25:55] Speaker 04: He's supposed to know that, but she's not. [00:25:57] Speaker 04: She's not supposed to turn around and tell him, I'm not the right person. [00:26:00] Speaker 04: If you have concerns, go to these people. [00:26:04] Speaker 04: That's not her? [00:26:04] Speaker 04: So he's supposed to know more about how this process works than she is? [00:26:08] Speaker 02: Right, Your Honor. [00:26:09] Speaker 02: Here is the issue with that, as the court is aware in the removal letter. [00:26:18] Speaker 02: in J-57 and 58 in the removal letter, the agency gave him very specific, very specific instruction on whom to contact, where to contact, and when to contact. [00:26:33] Speaker 02: And Mr. Koheiser's name is not on it. [00:26:35] Speaker 02: In addition, and I'm looking at J-58 in the bottom paragraph there, it provided two different names, two different numbers. [00:26:45] Speaker 02: for Mr. Nisky to contact, but for some reason, he ignored the very specific instructions that the letter gave him. [00:26:54] Speaker 04: We don't actually really know that, do we? [00:26:56] Speaker 04: I mean, maybe he's, this is years later, maybe he's misremembering, he's like, contacted EEO when he writes his complaint. [00:27:05] Speaker 04: Possible that he actually had this letter in front of him and contacted one of these? [00:27:08] Speaker 04: I mean, the question is, is this something that is so clear on the face of a complaint? [00:27:15] Speaker 04: that we think, reading all inferences in the light most favorable to the plaintiff, that we can say, no way. [00:27:24] Speaker 02: Well, the allegation of the plaintiff's one, the letter that I just pointed out is two, and the second thing. [00:27:30] Speaker 05: But he did. [00:27:30] Speaker 05: I mean, the letter said you can go to the MSPB, and he did. [00:27:35] Speaker 02: Yes, he did. [00:27:36] Speaker 05: And I know it's got a two, but it said that you can do one of these two things, and he will be forgiven if he, like an awful lot of judges, [00:27:45] Speaker 05: and some Supreme Court justices finds the handling of mixed cases by MSPB and district courts less than a crystalline process. [00:27:55] Speaker 02: That's correct, Your Honor. [00:27:56] Speaker 02: And so he did. [00:27:57] Speaker 05: He was diligent. [00:27:58] Speaker 02: He was diligent. [00:27:59] Speaker 02: However, the issue here is that when he went to the MSPB, he was given basically two opportunities to specify whether he was bringing a mixed case appeal or just the fact challenging the removal. [00:28:12] Speaker 02: For example, looking at JA62, which is part of the MSPB application or appeal, and look at box number six. [00:28:23] Speaker 02: and he reads, quote, explain briefly why you think the agency was wrong in taking the action or making the decision. [00:28:30] Speaker 02: Now, end quote, that is an invitation for Mr. Dnitsky to basically [00:28:36] Speaker 05: But he says, I wasn't given a chance to make my case. [00:28:38] Speaker 05: He doesn't say that my case did not involve discrimination. [00:28:42] Speaker 05: He says, I didn't get a chance to make my case. [00:28:44] Speaker 02: Well, Your Honor, then may I direct your attention again to JA-64, box number four. [00:28:50] Speaker 02: Again, he was given a second opportunity. [00:28:52] Speaker 02: And in that box, for example, it reads, quote, if you believe a specific law was violated, please identify the law and describe how the law you identify was violated, end quote. [00:29:03] Speaker 02: So, he is actually given a second opportunity, if you will, to specify that he was also raising a discrimination claim on appeal. [00:29:11] Speaker 02: But Mr., and as the court can see from the response to those two boxes, he did not mention discrimination. [00:29:17] Speaker 05: But that's totally consistent with discrimination or not discrimination. [00:29:20] Speaker 05: This is just, look. [00:29:21] Speaker 05: I've been trying to get my chance. [00:29:23] Speaker 05: My attorney banned me. [00:29:24] Speaker 05: I didn't know about the hearing. [00:29:25] Speaker 05: I've written all these people. [00:29:27] Speaker 05: I've been trying to get my chance to tell you my story and no one will let you tell me my story. [00:29:31] Speaker 05: That just begs the question of what that story is. [00:29:33] Speaker 05: It doesn't show that it isn't a discrimination story one way or the other. [00:29:36] Speaker 02: Right, but here at the MSPB forum gave him that forum, gave him that opportunity to ask whoever maybe listened to him to listen to his story. [00:29:47] Speaker 02: But for whatever reason, he chose not to say that I was discriminated against based on whatever factors. [00:29:54] Speaker 02: when I was removed from the agency. [00:29:56] Speaker 02: So therefore, when he appealed to the MSPB, he chose one route and not a big-case appeal. [00:30:02] Speaker 02: And from the reading, from how we read this, he was represented by counsel. [00:30:06] Speaker 02: If the court can look at J.A. [00:30:08] Speaker 02: 65, he was represented by counsel in [00:30:13] Speaker 02: on appeal with the MSPB. [00:30:17] Speaker 02: And so from what we have, as opposed to mere speculation, what we have [00:30:25] Speaker 02: in front of us shows that he didn't file a mixed case appeal. [00:30:28] Speaker 02: And therefore, it is incorrect to suggest that because the MSPB denied his appeal on jurisdictional grounds, the agency somehow has an obligation to inform him of subsequent procedures. [00:30:41] Speaker 02: Because under the provision that countercited 29 CFR [00:30:45] Speaker 02: 16.4.302, the agency has an obligation to inform Mr. Nisky of additional procedure if the appeal was a mixed case appeal. [00:30:57] Speaker 02: But as the court can see, it's not a mixed case appeal. [00:30:59] Speaker 02: So there's no additional obligation from the agency. [00:31:01] Speaker 04: Is that determination made on the basis of this form? [00:31:05] Speaker 02: I'm sorry, Your Honor. [00:31:05] Speaker 04: Whether it's mixed case or not is made on the basis of this form? [00:31:09] Speaker 02: That's correct, Your Honor. [00:31:09] Speaker 02: And also, as I pointed out, in the two boxes, box six and box four, that we discussed, there was no mention of a discrimination claimed by... It's interesting. [00:31:20] Speaker 04: There's nothing on this form asking for grounds, asking was it discrimination, was it... Asked for the type of adverse action [00:31:35] Speaker 04: but it doesn't actually, I mean, he seems to have taken it, interpreted this as, [00:31:42] Speaker 04: more procedural than substantive in terms of what he wants. [00:31:45] Speaker 04: He says, well, I want procedure. [00:31:46] Speaker 04: I know no one's going to decide my case based on this form. [00:31:49] Speaker 04: What I want is a chance, as Judge Millett was saying, to make my case. [00:31:53] Speaker 04: And I'm telling you what I want. [00:31:55] Speaker 04: And consistently from the beginning, he thinks his trouble began because other people were getting all kinds of flexible leave, and he wasn't. [00:32:04] Speaker 04: So he thinks the root cause, and that's been consistent of his mistreatment, was discrimination. [00:32:11] Speaker 04: And then he thinks if someone would actually listen to that, the thing would be unraveled and fixed. [00:32:18] Speaker 02: That's reading into facts that are not apparent in the MSPB form. [00:32:26] Speaker 04: I understand that Mr. No, I'm reading the complaint. [00:32:29] Speaker 02: Oh, I understand that. [00:32:30] Speaker 02: Throughout the event of complaints, Mr. Miske [00:32:34] Speaker 02: alleged that he had contacted different officials, but the flaw of the allegations is simply that he failed to [00:32:42] Speaker 02: contact an EO officer within 45 days of each of the disputes act. [00:32:49] Speaker 02: And so when he had the opportunity on appeal with MSPD, for example, as we discussed, Box 6 asked a very open-ended question. [00:32:57] Speaker 02: And he was like, tell me what's wrong. [00:33:00] Speaker 02: I said, briefly describe why you think the agency was wrong. [00:33:03] Speaker 02: And that is a very open-ended question that Mr. [00:33:10] Speaker 02: I was discriminated against when I was removed because of my race, my gender, my... [00:33:16] Speaker 04: I can't remember. [00:33:16] Speaker 04: Did you cite any cases on a mixed case being foreclosed based on a failure to mention discrimination in this form? [00:33:24] Speaker 04: Are there some cases on that? [00:33:27] Speaker 02: We did not cite those cases in our brief, Your Honor. [00:33:30] Speaker 02: And that was not an issue that was litigated, per se. [00:33:35] Speaker 05: Well, if you had forms like this, but then when he got to the MSPB, his briefs raised discrimination [00:33:42] Speaker 05: I assume that's what will control what he presented to the MSPB, would it not? [00:33:46] Speaker 02: Right, but I don't think the MSPB decision mentioned discrimination, Your Honor. [00:33:50] Speaker 02: We don't know what he argued to the MSPB. [00:33:52] Speaker 02: Well, at best, the MSPB decision did summarize the arguments. [00:33:57] Speaker 02: May I direct your attention to JA-69, and it is the first group paragraph beginning with as a result of the revocation. [00:34:06] Speaker 02: And if the court were to go down maybe one to third line, [00:34:11] Speaker 02: It summarizes that Mr. Nisky's appeal, it says that, quote, on appeal, the appellant claims that he has not been provided or the due process due to him in the revocation of his security clearance. [00:34:24] Speaker 02: because the agency did not inform him along with his attorney of the dates of the personal appearance, et cetera. [00:34:30] Speaker 05: But later on page 71, they say near the end of the full paragraph beginning, thus, issues that extend beyond the scope of these requisite due process rights are not material factual issues reviewable by the board. [00:34:45] Speaker 05: And so the board's saying, look, we have a very narrow question in front of us, and that's all we're going to talk about, his arguments on that question. [00:34:53] Speaker 05: And anything else he's raising... Well, because he raised a very... Does not make real facts for us, so we don't know what he did. [00:35:02] Speaker 02: Well, because based on the form that we just revealed, he raised a very narrow issue, and those issues did not include discrimination and the type of things. [00:35:11] Speaker 06: Are his further submissions part of a public record? [00:35:14] Speaker 02: Yes, they are. [00:35:15] Speaker 02: You know, they were filed along with a motion dismissed and along with the plaintiff's complaint, or amendment complaints, at the district level. [00:35:24] Speaker 05: Is that something we could consider at this stage? [00:35:26] Speaker 02: Yes, Your Honor. [00:35:27] Speaker 02: The Court can certainly take traditional notice of certain documents specifically referenced in the complaints, especially when it comes to the issue of administrative exhaustion. [00:35:40] Speaker 05: There's a whole other issue of even though the board can't review the security clearance, we've got a Rattinger decision that says you could challenge no only false statements by coworkers or supervisors that launched you into the security revocation. [00:35:57] Speaker 05: process, which might be consistent with his complaint, but you can imagine someone not being quite sure how do I deal with that type of argument because I've not only got now the mixed complaint, the MSPB, and then all the trappings that are associated with security decisions and what can be reviewed and what cannot. [00:36:16] Speaker 02: Well, the Radigan issue didn't become an issue until he gets to the district court. [00:36:22] Speaker 02: And we raised that issue in our motion to dismiss. [00:36:25] Speaker 02: There's nothing in the amendment complaints or the records that we saw here where Mr. Niske concerned himself with sort of the Egan issue and his progeny. [00:36:34] Speaker 02: And as a court no, when Judge Bates granted a motion to dismiss, he chose not to. [00:36:40] Speaker 05: And he had an attorney for his complaint. [00:36:43] Speaker 02: For the district court? [00:36:43] Speaker 02: Yes, Your Honor. [00:36:44] Speaker 02: He was represented. [00:36:46] Speaker 02: during the district court proceedings in front of us. [00:36:51] Speaker 02: If the client has no other questions, we ask that the court affirm Judge Bates' decisions. [00:36:55] Speaker 02: Thank you very much. [00:36:58] Speaker 05: All right. [00:36:58] Speaker 05: Mr. Rosenthal has no time left, as I recall. [00:37:00] Speaker 05: That's correct. [00:37:01] Speaker 05: Mr. Rosenthal will give you two minutes. [00:37:07] Speaker 03: Thank you, Your Honor. [00:37:08] Speaker 03: I first want to address the different MSPB documents. [00:37:11] Speaker 03: Although there are certain forms in the record, we don't have access to all the documents that are involved with the MSPB dispute. [00:37:19] Speaker 03: There are briefs that were filed that the MSPB decision cites. [00:37:23] Speaker 03: And this is just another example that the agency is trying to create factual disputes that are not proper at this stage, because we do not know exactly what type of [00:37:33] Speaker 03: what type of allegations Mr. Niske did make, in fact, to the MSPB without access to these documents. [00:37:42] Speaker 05: Would you agree that if we obtain those other documents and look at them and there's no mention anywhere of discrimination, then Mr. Niske has a problem? [00:37:53] Speaker 03: He would likely have a problem, however, we would need discovery to be able to get access to those documents. [00:38:01] Speaker 05: Just for the MSPB filing, so it should be a matter of public record. [00:38:05] Speaker 03: Yes, Your Honor, that is true. [00:38:06] Speaker 03: However, he also, the MSPB in its decision noted that [00:38:10] Speaker 03: It said on page 69 that the appellant claims that the agency should not have revoked his security clearance at all. [00:38:16] Speaker 03: The only merits argument he's made this entire time has been his discrimination complaint. [00:38:21] Speaker 03: There's been no other, besides he made a due process argument, but the only merits complaint that he has raised has been that his security clearance was revoked for racially discriminatory reasons. [00:38:31] Speaker 03: So that points to the fact that he likely did raise a discrimination complaint with the MSPB. [00:38:38] Speaker 06: The agency also- [00:38:41] Speaker 06: followed purely me and its crew, but doesn't seem to be a follow-up from that. [00:38:48] Speaker 03: Your Honor, at this stage of the proceedings, we would draw that inference in Mr. Niske's favor. [00:38:54] Speaker 03: And especially since the MSPB declined jurisdiction over the merits argument, which is, and the only merits argument he has made has been a race discrimination claim, it was at that point that the agency had an obligation to notify him that if he has a discrimination complaint, that he has the right to contact an EEO counselor to do so, which the agency failed to do. [00:39:17] Speaker 03: and in doing so violated the federal regulations. [00:39:22] Speaker 03: Thank you. [00:39:22] Speaker 05: Mr. Rosenthal, you were appointed by the court to represent Mr. Nisky in this case, and the court very much appreciates your able assistance. [00:39:30] Speaker 03: Thank you. [00:39:32] Speaker 05: Case is submitted.