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Case number 15-5025, Mohammed Tahid al-Safi, Appellant vs. Thomas J. Vilsack, and his official capacity as Secretary, U.S.

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Department of Agriculture and John F. Kerry, and his official capacity as Secretary of State.

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Ms.

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Krueger for the Appellant, Mr. Tafe for the Appellate.

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Good morning, Your Honors.

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May it please support, I'm Susan Krueger, and I represent the appellant in this action, Mohamed Tawheed Alsapi.

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Morning.

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First, I'm going to talk about the issues involved with his complaints against the Department of Agriculture.

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The issue is, well, let me go back.

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Dr. Alsafi filed a complaint against the Department of Agriculture in 2011.

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This was an administrative EEO complaint alleging discrimination.

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He also filed a complaint against the Department of Agriculture in 2012.

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Again, an administrative EEO complaint alleging discrimination.

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In the spring of 2013, Dr. Asafi requested that his request for hearings before an administrative judge be withdrawn so that he could file a complaint in federal court.

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And in April of 2013, the EEOC judges issued orders responding to his request.

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Dr. Asafi filed his complaint in federal court in October 2013.

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Let me ask you about those two orders.

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You treat them as the same in your brief.

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The two orders, the one by

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with respect to the second complaint, right?

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And Colazzo, which was the third complaint.

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But there is a big difference, isn't there?

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Well, OK, just first of all, to be clear, the 2009 complaint, we're not arguing about that.

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That was just put in his federal question.

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I'm just talking about the second and third.

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Brown and Colazzo, OK?

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Now, they're different, aren't they?

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Well, they're both responses to his request to withdraw his request for a hearing.

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They're looking at the language of the orders.

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They're different because Brown dismissed only the hearing request, which is not covered by 110A, whereas Colazzo dismissed the case, which is a 110A action.

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Isn't that a big difference in terms of whether or not they can ripen into final agency, in fact, whether they can ripen into final agency action?

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Well, I don't think there is.

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I don't think there is a difference.

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I mean, I understand what you're saying.

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What was the language of 110A?

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Right, so.

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110A.

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It has three circumstances.

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One is dismissing the complaint, and the other two don't even apply here.

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So in the third complaint, it was dismissed.

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In the first, it wasn't dismissed.

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So in the third complaint, isn't the department right that because the judge dismissed the complaint, that under that

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under 110A, it ripened into final agency action and plaintiff's complaint was statutorily late.

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Again, what 110A is entitled, final action by an agency following a decision by an administrative judge, there's no decision here as such.

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It says final action by an agency by a judge.

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But then it describes what those decisions by the judge are.

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It lists three things.

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Well, it talks about issuing a decision under 16, 14, 109, B, G, or I.

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Well, yeah, I think that in terms of B, that 109B dismissals, that that is more for, you know, maybe a procedural dismissal.

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The judge makes a decision to do this.

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This was, this is sort of the opposite.

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This is Dr. Al-Safi is saying, I don't want

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I don't want to have a hearing before an administrative judge.

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I want to take it out of that process.

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What I was wondering is what Judge Colazzo did was dismiss the case, not the complaint, which is what 110 and 109 refer to as dispositions of complaints which are filed with agencies.

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And I was trying to figure out whether case there meant just the case before the ALJ.

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So it's like the dismissal of the hearing in the other order.

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Or does case in practice mean the same as the complaint, your whole case before the agency?

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And so I'm just very confused about the use of the word case there, given that the order also references the attached letter, which was only talking about dismissing a hearing.

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Great, Your Honor.

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These, I mean, to me, these orders are pretty much the same because they are basically responding to Dr. Al-Saffi's request to not have a hearing before the administrative judge.

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Both of these cases... Well, they're responding to that, but as Judge Hittle pointed out, the wording is very different.

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The Judge Brown order not only says

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has the narrow language of saying the hearing request is dismissed, but also then says, essentially kicks it back to the agency, and the agency's going to do a final decision.

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We don't have that here.

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And on first flush, a case is dismissed sounds like the end of the whole proceeding.

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But maybe not.

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Maybe in the specialized area, which you need under 109 and 110 is dismissal of the complaint before the agency.

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So what do I do with this word case combined with the fact that it expressly incorporates the letter which only talked about a hearing dismissal?

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What do we do?

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Was that enough to at least put you on notice that you needed to do something?

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Well, I don't think it was unless it came with some sort of notification of what the timelines were.

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Neither of these orders came with any kind of notification.

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Well, that might be an equitable tolling argument, but we're trying to just figure out what the legally operative effect of this order is, which, again, as Judge Hiddles said, is different than the Judge Brown order.

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And we need to figure out whether it's different enough, given the nature of the language.

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Mr. Alfie was represented by you all at the time, so it's not like he was pro se.

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That's correct.

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And so surely lawyers appreciated that these things were worded, although your letters requesting dismissal of hearing were identical, the orders issued were not.

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Was that not enough to put you on notice, as in like the Melson case, where you had to do something to then preserve your rights if you thought this dismissal order had overreached?

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Well, it doesn't say that the case was dismissed with prejudice.

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It just says, the case is dismissed and pursuant to the attached letter, which requested that the hearing be dismissed.

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So in other words, it's- Well, in practice before, I just want to understand, what does case mean?

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For judges, case means one thing.

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Right.

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But in this area, does case mean the whole dispute with the agency, or do you refer to the ALJ proceeding as a case versus an agency case?

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I just don't know what that word means and where it came from.

[00:08:47] Speaker 04:
No.

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The case, I believe, case here means the complaint that was filed with the agency requesting, and Dr. Asafi's initial request for a hearing before an administrative judge.

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So he didn't want to dismiss his, it wasn't like he was withdrawing his complaint, which would have been something different.

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He was just withdrawing his request for a hearing.

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And so you read cases meaning just the case before the ALJ?

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Right.

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What happened in this complaint was that he had received his report of investigation.

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Well, no.

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Actually, no.

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What happened was that the agency had this case for something like more than 180

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more than the time period than they should have been taking action on it.

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And they did not.

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And so instead of requesting, so what he was doing was he was withdrawing his request for the hearing before an administrative judge saying, I'm going to be filing in federal court.

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Thank you, Your Honor.

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May it please the court, Damon Tay for the U.S.

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Attorney's Office, representing defendant agencies, USDA, and the State Department.

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Picking up where the court left off, I would say more broadly that we understand that there are some difficult issues here.

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We recognize that there are some cases that go against us.

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What our position has always been flows directly from what we understand the language of the regulation to be, as well as the district court's holdings in the Wiley case and the Nelson case.

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And this court's affirmance and Nelson didn't deal with a situation in which the agency was required to give notice.

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It did not address that issue.

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That's the problem you have on the 2012 complaint.

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Let me just tell you my issues.

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In the 2011 complaint,

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There isn't any final agency action.

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The agency isn't doing anything here.

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The agencies shall issue a final decision.

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So I simply left.

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There it is.

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That's not final agency action.

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The problem in 2012, from my perspective, is you are required to give notice.

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You didn't give notice.

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Williams and other cases in the circuit make it very clear, statute of limitations does not begin to run, not equitable tolling, statute of limitations does not begin to run until you give that notice.

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At least for me, I need to hear answers to those questions.

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If I could just ask a follow-up question, in what respect is Nelson dissimilar?

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Nelson doesn't address the question where an agency is required to give notice.

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There are cases in our circuit that say where an agency is required to give notice, statute doesn't begin to run if they haven't given notice.

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And they cited a district court case which cites to our case law on that point, so they didn't waive it.

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They raised that question, and it's different from the equitable stop argument.

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So that put it in play.

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And on the first one, I simply don't see any final agency action.

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So nothing began to run, as far as I'm concerned, so that you understand what's bothering me.

[00:12:33] Speaker 03:
I understand both of your honor's points.

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Let me try to respond to them.

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With respect to the Wilson v. Pena case and Williams, the other cases that your honor was referring to, that is broad language.

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We admit that there was not.

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We admit you got a problem.

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Yes, we admit we have a problem as far as that goes.

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I would point out one distinguishing factor that may or may not convince your honor.

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Excuse me.

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In the Wilson case,

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That was substantially different than the facts we have here.

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That came out in effect that the dismissal order there happened in a gap between an iteration of the statute that lengthened the period for filing and the period when the agency's regulations caught up to that statute.

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So the court actually said in that case that the holding here is limited to this particular window of cases, the one-year period, in which the agency's forms were actually actively apprising a litigant of an incorrect filing period, which is different from what we have here.

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Here we have, arguably,

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not communicating any filing period.

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There it is somewhat different because they're being told something that's incorrect.

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It's sort of a difference between being misled and not being informed, I suppose.

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But that is broad language that has taken to apply here.

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It was not applied in

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Nelson, I think if this court had applied it in Nelson, that case would have had to come out differently.

[00:14:10] Speaker 01:
Well, Nelson didn't address it.

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So we don't even know if it was raised.

[00:14:15] Speaker 03:
That's correct.

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Nelson counts for nothing.

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It just doesn't tell us anything about the situation.

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Nothing.

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Because you have a clear requirement to give notice here.

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And the case law on the circuit says when you have a clear requirement to give notice, the factual limitations doesn't start to run if you haven't given it.

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Nelson doesn't address it.

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I believe that the Wiley case may, Your Honor, at least that it was raised there.

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That's a decision by Judge Kolar Kitele some years ago.

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But if the language there, in that case that you're talking about, the Wilson case,

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In that case, there was no active withdrawal from the processes as there was here.

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And that's been something that many courts have found to be important.

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And that's the best I think I can do in distinguishing that case.

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You may or may not need to explain that.

[00:15:10] Speaker 05:
Would you then go on and respond to Judge Edwards' point about the second complaint?

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I mean, you don't even need any cases on that, right?

[00:15:17] Speaker 05:
That's the question of the one that was dismissed by Brown.

[00:15:23] Speaker 05:
You don't even need to look at cases for that, right?

[00:15:25] Speaker 05:
Because the judge dismissed the hearing request, not the complaint.

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And then she cited 110B, not 110A.

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So it couldn't ripen into final agency action.

[00:15:40] Speaker 03:
Correct.

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Acknowledging your Honor's point, that's not a point that plaintiff has ever raised in this case.

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Both parties, as well as the district court, treated these as synonymous dismissal orders, as well as synonymous requests for dismissal.

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What's your response to it on the merits?

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I take your point about that.

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The blue brief does treat the two of them as the same.

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But beyond that, what's your response on the merits?

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That is, to the interpretation of 110A and B here?

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Let me ask you this way.

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Would you agree that if we thought it was raised properly, that they would prevail on that argument?

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under 110B rather than 110A?

[00:16:28] Speaker 03:
Yeah.

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Yeah, I'm talking about Brown.

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The second complaint was dismissed.

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She dismissed the hearing request.

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And that's not one of the actions listed in 110A.

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And she cited 110B, so it couldn't ripen into a final agency action, so it's not linked.

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Your Honor may be right on that point.

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It's not something that we've considered.

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I would point out, this is not directly responsive, but I would just point out an interesting fact about this dismissal, which is it says, absent notice the civil action has been filed in this matter of the agency shall issue dot dot dot.

[00:17:09] Speaker 03:
So it can't possibly be that this notice is construed as causing somebody to wait for something to happen, that is, an order to be issued, because the order itself expressly contemplates that a civil action could be filed before a final agency action.

[00:17:22] Speaker 01:
No, but that's important, what you left out.

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The agency shall issue a final decision in accordance with the procedures in 110B.

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You see, the problem is, if we rewrite a decision of the sort that you're asking for, you're conflating A and B, and they're very different.

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And as Judge Taylor's raising a question on a 2011 complaint, there isn't any final agency action here, and you can't look at it as if it's A because the hearing officer cites B.

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You know, your honor has a point here.

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It's not something that we've been litigating throughout this, so I haven't focused on the difference between A and B maybe as well as I had if we had been litigating this all the way through, but I don't know of any reason as I stand here that your honor is incorrect on that point.

[00:18:11] Speaker 05:
Okay, thank you.

[00:18:12] Speaker 05:
I just had two questions about the State Department complaint, two quick questions.

[00:18:17] Speaker 03:
Yes.

[00:18:17] Speaker 05:
One is, the department's position is that he should have been alerted, plaintiff should have been alerted by the

[00:18:24] Speaker 05:
ROI, right, about these affidavits?

[00:18:29] Speaker 03:
Correct?

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In our view, it would have been within the expected scope of an investigation into a reassignment.

[00:18:37] Speaker 03:
Why the reassignment occurred seems naturally to me.

[00:18:39] Speaker 05:
We don't know whether those affidavits were actually attached, do we?

[00:18:43] Speaker 03:
I don't think they were.

[00:18:45] Speaker 05:
Well, but how do you know?

[00:18:46] Speaker 05:
Is it in the record?

[00:18:47] Speaker 05:
Is the ROI in the record?

[00:18:49] Speaker 03:
The ROI is, I do not believe the affidavits in question were part of the ROI, because they were submitted in part, pursuant to a summary judgment motion in the USDA case.

[00:19:01] Speaker 05:
But you're, yeah, but, right, so it's not in the record here.

[00:19:05] Speaker 05:
And also, it says, it says,

[00:19:11] Speaker 05:
The State Department's final decision on this issue, dismissing it, says, presumably these affidavits would have been included in the report.

[00:19:24] Speaker 05:
It just says presumably.

[00:19:29] Speaker 05:
So we really don't know whether these affidavits

[00:19:32] Speaker 05:
Well, but under the exhaustion, it has to have summary judgment, particularly since we're supposed to interpret disputed issues in plaintiff's favor, summary judgment.

[00:19:47] Speaker 05:
So how could summary judgment possibly be appropriate under those circumstances?

[00:19:52] Speaker 03:
Well, I think the bigger problem, Your Honor, I will respond to that, but first to note what we believe the bigger problem to be is that 42 USC 2016A requires under McDonald Douglas, you have to have an adverse action.

[00:20:07] Speaker 03:
In this case, the adverse action was taken by one entity.

[00:20:13] Speaker 03:
That was USDA.

[00:20:14] Speaker 03:
You can't have the same adverse action taken by two different agencies.

[00:20:18] Speaker 03:
And here there was a complaint filed against USDA for this very adverse action, that is the reassignment of the Yemen duty portfolio.

[00:20:26] Speaker 03:
And then during that litigation there were affidavits submitted explaining why

[00:20:35] Speaker 03:
It happened.

[00:20:37] Speaker 03:
What was the nature of the reason for the reassignment?

[00:20:40] Speaker 03:
And so, yes, there were certain state employees who believed that plaintiff was not fitting in well there.

[00:20:47] Speaker 03:
And based on what their views were, that is the state employees' views, USDA took an adverse action, which is reassigning the duty portfolio.

[00:20:55] Speaker 03:
But state never took that adverse action.

[00:20:58] Speaker 05:
If anything... Well, how do you know that from this record?

[00:21:01] Speaker 05:
This is summary judgment.

[00:21:03] Speaker 05:
Well, let me ask you this.

[00:21:04] Speaker 05:
Do you think that suppose there was evidence that under this statute that you cited, the government cited in the district court, but not here, the chief of mission statute, which sort of gives the ambassador control over other agencies operating in the embassy?

[00:21:21] Speaker 05:
I mean, suppose the evidence showed that the ambassador or someone on the ambassador's staff

[00:21:27] Speaker 05:
actually did control the work of this particular employee.

[00:21:34] Speaker 05:
Even though the employee technically worked for the Agriculture Department.

[00:21:37] Speaker 03:
Well, the evidence in the record here, Your Honor, suggests the contrary of that.

[00:21:42] Speaker 05:
But suppose it did.

[00:21:43] Speaker 05:
Would you concede then that State could be a proper defendant?

[00:21:47] Speaker 03:
I don't think I would, Your Honor, because the State Department literally, I don't believe, had the authority to assign a duty portfolio to the plaintiff.

[00:21:55] Speaker 03:
The State didn't employ the plaintiff.

[00:21:58] Speaker 03:
And what I was going to mention to you, Your Honor, record at Joint Appendix 107,

[00:22:03] Speaker 03:
This is in 109 is a letter to the ambassador, 107 is this an identical letter to somebody else there, but this letter is written by USDA and it explains to the relevant State Department employees who the plaintiff is and what he will be doing when he's there.

[00:22:21] Speaker 03:
It says that he will be

[00:22:23] Speaker 03:
the director of the Agricultural Trade Office and says as director of that office, he will coordinate DOA policies and activities in Saudi Arabia with regional responsibilities for Yemen.

[00:22:34] Speaker 03:
He will work to broaden access for certain products and developments.

[00:22:38] Speaker 03:
And then it says, he will report directly to you so that you will be fully informed of his activities.

[00:22:44] Speaker 03:
And then it says, I think he'll be a valuable member of your staff.

[00:22:47] Speaker 03:
This is something where the USDA is explaining to state, here's the guy we're sending you.

[00:22:52] Speaker 03:
Here's what he's going to do.

[00:22:53] Speaker 03:
He's going to keep you in the loop.

[00:22:55] Speaker 03:
But this, from the beginning and through the end, has been USDA controlling its employees.

[00:23:00] Speaker 02:
The last sentence you just said is, he'll be a valuable member of

[00:23:04] Speaker 02:
your staff.

[00:23:05] Speaker 03:
Yeah, so he'll be in your office, but the duties are being assigned by your office, but your staff and given

[00:23:14] Speaker 02:
Given the ambassador in a country doesn't like someone who's working there, my bet is that the USDA doesn't get to say they stay anyhow.

[00:23:26] Speaker 02:
Or at least, again, this is a disputed fact in the record.

[00:23:29] Speaker 02:
Is it not?

[00:23:30] Speaker 03:
I'm not sure it's disputed.

[00:23:31] Speaker 03:
In a complaint in this case, he said that the USDA reassigned him.

[00:23:35] Speaker 03:
USDA transferred him.

[00:23:37] Speaker 02:
The district court decided a statute involving the chief of mission, which gives the chief of mission, the State Department, full responsibility for the direction and coordination of all government executive employees.

[00:23:49] Speaker 02:
That's in the district court record.

[00:23:51] Speaker 03:
If your honor's right about that, though, then I think the USDA complaint is no good.

[00:23:55] Speaker 03:
Because there's only one adverse action here.

[00:23:57] Speaker 03:
There's one reassignment.

[00:23:59] Speaker 03:
Either that action was taken by the State Department, or it was taken by USDA.

[00:24:03] Speaker 02:
Well, but again, that may be exactly the disputed fact that needs to be resolved here.

[00:24:08] Speaker 02:
And that's why there's two complaints.

[00:24:10] Speaker 02:
He wants to protect himself either way and make sure at the end of the day he's got the responsible employer in this unusual and complicated situation.

[00:24:19] Speaker 03:
We never moved to dismiss on that.

[00:24:22] Speaker 03:
There's no controversy as to whether USDA is responsible for the action that happened.

[00:24:28] Speaker 03:
They're not suggesting otherwise, and we're not suggesting otherwise.

[00:24:31] Speaker 03:
They simply filed a second complaint alleging the same constellation of facts that they alleged in the first one, and the second one was against an agency that never employed

[00:24:41] Speaker 03:
the plaintiff.

[00:24:42] Speaker 03:
This is what Section 107 addresses when they say that it's filing a claim alleging the same facts.

[00:24:48] Speaker 03:
That's why it was dismissed.

[00:24:50] Speaker 03:
And so I think I've said about as much as I can on the subject.

[00:24:54] Speaker 03:
OK.

[00:24:55] Speaker 05:
Thank you.

[00:24:56] Speaker 05:
Thank you.

[00:24:57] Speaker 05:
I think, let's see, did Ms.

[00:25:03] Speaker 05:
Krueger have any time?

[00:25:06] Speaker 05:
Ms.

[00:25:06] Speaker 05:
Krueger had 30 seconds.

[00:25:07] Speaker 05:
OK.

[00:25:07] Speaker 05:
You can take your 30 seconds plus an extra minute if you like.

[00:25:18] Speaker 04:
All right.

[00:25:19] Speaker 04:
I'm going to try and quickly address some of these things that were discussed.

[00:25:24] Speaker 04:
First of all, the complaint against state, what Dr. Asafi is saying is that these State Department employees did have control over the decision to terminate him.

[00:25:37] Speaker 04:
And he did not learn about this, and he did not know to what extent they were participating in the decision to terminate him as ATO

[00:25:45] Speaker 04:
of Yemen until he received these affidavits that were produced in support of a motion for summary judgment in which they basically state that they had discussions with the Department of Agriculture and recommended his dismissal.

[00:26:06] Speaker 04:
So there's no question that the State Department had control over him and, in fact,

[00:26:14] Speaker 04:
These letters, the letters were addressed to the two ambassadors, ambassador of Yemen and the ambassador of Saudi Arabia.

[00:26:22] Speaker 04:
And both of the letters said the same thing about Dr. Al-Safi being a member of their staffs and reporting directly to the ambassador, which is important because it shows the control of the ambassador.

[00:26:34] Speaker 04:
So regarding the department, I'm sorry.

[00:26:37] Speaker 05:
Finish your sentence, your time's up.

[00:26:39] Speaker 04:
Go ahead.

[00:26:40] Speaker 04:
That's it?