[00:00:00] Speaker 04: Case number 19-5343. [00:00:03] Speaker 04: Andrew H. Ferrar, the balance, versus Steve Jurcik in his official capacity as the Acting Administrator of the National Aeronautics and Space Administration. [00:00:13] Speaker 04: Mr. Robinette, I make this query for the balance. [00:00:16] Speaker 04: Mr. Ferrar, proceed with balance. [00:00:18] Speaker 04: Ms. [00:00:18] Speaker 04: Palmer Ball, for the appellee. [00:00:21] Speaker 01: Good morning, counsel. [00:00:22] Speaker 01: Ms. [00:00:22] Speaker 01: Robinette, please proceed when you're ready. [00:00:26] Speaker 05: Good morning, Your Honors, and may it please the court [00:00:28] Speaker 05: My name is Katherine Robinette, and my guest for appellant, Mr. Farrar. [00:00:33] Speaker 05: The narrow issue before this court is whether a plaintiff seeking a de novo trial in this court must return his administrative award before being permitted to initiate his civil action. [00:00:45] Speaker 05: Because neither the Rehabilitation Act, the incorporated provisions of Title VII, nor case law from this court, impose such a requirement, the district court erred in dismissing Mr. Farrar's complaint. [00:00:57] Speaker 05: There's no dispute in this case that Mr. Farrar seeks de novo review and that therefore he must prove both liability and entitlement to his requested relief. [00:01:07] Speaker 05: The government acknowledged that both in its motion to dismiss below and its brief in its briefings here. [00:01:14] Speaker 05: Because Mr. Farrar seeks de novo review, Scott does not govern. [00:01:18] Speaker 05: There was no ambiguity in Scott that the plaintiff [00:01:22] Speaker 05: explicitly argued that he was not required to relitigate liability in the district court. [00:01:27] Speaker 05: That is not the case here. [00:01:29] Speaker 05: And there's no authority for the proposition that simply maintaining the status quo during the pendency of litigation by retaining an administrative award imposes a substantive violation. [00:01:42] Speaker 05: The only other federal appellate court to address this issue, the Fifth Circuit in Massingale, held that the retention of an administrative award [00:01:49] Speaker 05: was not a bar to initiating a civil action in district court. [00:01:55] Speaker 07: Ms. [00:01:55] Speaker 07: Robinette, the Fifth Circuit said that if the plaintiff in that case loses his federal court suit, then that plaintiff likely would have to give back the award that was received during the administrative adjudication. [00:02:11] Speaker 07: Do you agree that Mr. Farrar will have to give back his entire award [00:02:18] Speaker 07: that he has received if he loses his civil suit to the district court. [00:02:24] Speaker 05: Yes, Judge Walker. [00:02:25] Speaker 05: We're not arguing that Mr. Farrar would not be required to return his administrative award if he ultimately was unsuccessful in the district court in this case. [00:02:34] Speaker 05: We're simply arguing that failing to disgorge the award now before initiating civil action imposed a substantive bar to him initiating his proceeding here. [00:02:45] Speaker 05: So our ask is fairly narrow that Mr. Frer not be required to disgorge the award prematurely or before initiating civil action. [00:02:58] Speaker 05: But we do not argue that he, if ultimately unsuccessful, would have to return his administrative award. [00:03:07] Speaker 07: How much was it? [00:03:09] Speaker 07: My impression is that there was 25,000 plus 8,000. [00:03:12] Speaker 07: Is that ballpark correct? [00:03:15] Speaker 05: Ballpark, that's correct. [00:03:16] Speaker 05: I believe there are attorney's fees as well. [00:03:18] Speaker 05: I don't know if that concluded in that amount, but that comes. [00:03:23] Speaker 07: And if you could expand a little bit on your theory for why the government is not already entitled to that money and why the government didn't become entitled to that money the moment that he filed this civil suit, which could be viewed as a rejection of the [00:03:45] Speaker 07: EEOC adjudication. [00:03:48] Speaker 07: I'm not saying that he would necessarily have to write them a check, but if the government were to bring their own suit to recoup that money today, tell me why the government shouldn't win that suit immediately. [00:04:03] Speaker 05: I guess I would say, you know, it's not, I think the government [00:04:12] Speaker 05: in this or any other case where this happens, has tools at its disposal to work out with the parties some sort of arrangement to place the monies in escrow during the pendency of the litigation. [00:04:25] Speaker 05: I don't think anything prohibits the government from seeking to do something like that. [00:04:32] Speaker 05: As I said, we're just arguing that the mere acceptance didn't bar his action. [00:04:39] Speaker 07: Assume I agree with you on that, but I think that he lost any entitlement to the money as soon as he filed this suit. [00:04:48] Speaker 07: Maybe you agree with me that the government can file their own suit or a counterclaim to his suit and is entitled to get that money back immediately because he rejected that money by filing this suit. [00:05:09] Speaker 05: Yeah. [00:05:10] Speaker 05: I mean, I'll candidly, I haven't thought through the entitlement, you know, to the funds issue at the present moment thoroughly enough, I think to say, yeah. [00:05:20] Speaker 02: Didn't Massingale itself contemplate a counterclaim? [00:05:24] Speaker 05: I believe the court there did. [00:05:26] Speaker 05: Yes. [00:05:27] Speaker 02: So then if, if there's an opportunity to file, if your argument is that we should adopt the approach in Massingale and Massingale, as I recall, correct me if I'm wrong, but as I recall, the opinion closes by [00:05:38] Speaker 02: contemplating that the government could file a counterclaim. [00:05:40] Speaker 02: Then there'd be a question about how ripe the counterclaim would be and exactly when the entitlement to prevail in the counterclaim and get the money back kicks in. [00:05:49] Speaker 02: But at that point in time, the government would have asserted its entitlement to get the money back. [00:05:53] Speaker 02: And then there'd be a temporal question about when the court actually renders the award of the counterclaim and does it have to wait till the end of the suit for the claim itself and the counterclaim? [00:06:03] Speaker 02: I haven't purported to work any of that out in my mind, but I take it that the counterclaim is there. [00:06:08] Speaker 02: as an opportunity for the government. [00:06:11] Speaker 05: That's right. [00:06:12] Speaker 05: And Mastigal certainly contemplated the possibility of a counterclaim and did no pines to the timing question that you raised, which I agree is a tricky one. [00:06:23] Speaker 02: Can I follow up on one aspect of what Judge Walker is asking you about, which is [00:06:28] Speaker 02: So a counterclaim is one possibility that Massingale itself contemplated. [00:06:32] Speaker 02: And you could also contemplate a scenario in which the government would adopt some sort of regulatory apparatus, regulations or something, that would provide for a requirement for a party who brings a suit to put, as you said, put money in escrow, or I don't know exactly how they would work it out. [00:06:49] Speaker 02: But in theory, the government could adopt a regulatory regime that addressed some of the issues. [00:06:56] Speaker 02: that are in play here. [00:06:57] Speaker 02: And I just didn't know whether you'd given any thought to, I know that you're arguing here in your capacity as court appointed amicus, but have you given thought to whether that kind of regulatory apparatus would be something that's within the government's authority to do? [00:07:11] Speaker 05: I think it would. [00:07:12] Speaker 05: And I think the regulations that the court's aware of and directed us to yesterday evening, 29 CFR 1614.502, [00:07:22] Speaker 05: that regulation provides that agencies have 120 days after receipt of the final EEOC decision to provide the relief ordered. [00:07:33] Speaker 05: That rule was amended in 2012, previously the time allotted to agencies to provide relief was 60 days. [00:07:41] Speaker 05: So in 2012, the commission extended the time from 60 to 120 days and they specifically noted in the preamble [00:07:49] Speaker 05: that that change was made because the commission believes quote that agencies should not be required to provide relief before the expiration of the complainants 90 day right to file suit. [00:08:00] Speaker 05: So I think the government's concerns about this just somehow a rule allowing Mr. For our suit to continue somehow opening the floodgates is unwarranted. [00:08:10] Speaker 05: Given this regulation and in the mind run of cases, we believe that the government [00:08:15] Speaker 05: has ample resources to protect itself by simply awaiting the expiration of the 90-day appeal period before it orders relief. [00:08:23] Speaker 05: I don't know if that did happen in this case. [00:08:25] Speaker 05: The EEOC actually ordered relief provided within 60 days. [00:08:29] Speaker 05: I'm not sure why that is the case. [00:08:32] Speaker 05: I think the government could have certainly, I see that I'm out of time. [00:08:36] Speaker 05: May I complete the thought? [00:08:37] Speaker 05: Yeah. [00:08:39] Speaker 05: I think the agency could have requested reconsideration on that point if they thought to extend the period to 120 days to align with the regulation here. [00:08:49] Speaker 05: But I do think that this shows that concerns over floodgates are unwarranted, given this regulation is already on the books. [00:08:57] Speaker 02: So we can ask the government about the way this works in operation, too. [00:09:01] Speaker 02: But to the extent that you're aware of it and have given thought to it, what happens in a situation in which [00:09:07] Speaker 02: what would happen in a situation in which the award has been entered so that we know how much is owed, but then there's no actual payment of the award within the 90 day period. [00:09:24] Speaker 02: But at some point there, within the 120 day period, sorry. [00:09:30] Speaker 02: But at some point before the 90 day period, the suit is brought. [00:09:34] Speaker 02: And then how does that play out? [00:09:36] Speaker 05: I'm not sure in practice, the regulation certainly contemplates in the notes to the regulatory change certainly indicate that the change was made to protect agencies. [00:09:48] Speaker 05: So I would assume that in that scenario, the agency simply would not provide, would not make the payment and the case would proceed in district court as we are here. [00:10:00] Speaker 02: Okay. [00:10:04] Speaker 02: Let me make sure my colleagues don't have any additional questions for you, Ms. [00:10:06] Speaker 02: Rodman, at this point. [00:10:09] Speaker 02: We'll give you some rebuttal time. [00:10:10] Speaker 02: Thank you. [00:10:11] Speaker 02: Mr. Farrar? [00:10:16] Speaker 06: Morning. [00:10:16] Speaker 06: If it may please the court, I'm Andrew Farrar. [00:10:19] Speaker 06: I'm advocating on my own behalf. [00:10:21] Speaker 06: I just wanted to touch on this issue that's been brought up as far as the counterclaim with regard to Massingale. [00:10:32] Speaker 06: My fellow civil servant actually stated in their brief that it's not quite as simple as counterclaiming. [00:10:39] Speaker 06: And where I think that lies is that there is a jurisdictional issue with the Tucker Act. [00:10:49] Speaker 06: If the rule were to issue that provided that the district court has the power to require the parties to stipulate to a counterclaim being remanded to the federal court of claims as the result of a trial, that would be entirely consistent with Massingale, the circuit's precedence, and also West versus Gibson, which was where [00:11:15] Speaker 06: The Supreme Court was tasked with determining whether the EEOC had any authority at all to issue compensatory damages. [00:11:24] Speaker 06: And when that case was decided by the Supreme Court, it did recognize the possibility for a case similar to mine arising and [00:11:39] Speaker 06: you know, it simply stuck to the language of the statute to say that, you know, in the event it does happen where somebody's unsatisfied by the amount of money, they do have the right to proceed de novo. [00:11:53] Speaker 06: And I just think it's important to keep in mind that there are 2 million employees in the federal government and to issue a rule that under, you know, a doctrine of [00:12:08] Speaker 06: equitable mootness or something to that effect would risk consuming the entire faction. [00:12:15] Speaker 06: Thank you. [00:12:16] Speaker 07: May I ask one question? [00:12:17] Speaker 07: Absolutely. [00:12:18] Speaker 07: Chief Judge, I know the time. [00:12:20] Speaker 07: So Mr. Farrar, is there anything that the amicus said that you disagree with other than aside from anything you've already said? [00:12:31] Speaker 07: Anything the amicus said that you disagree with? [00:12:34] Speaker 06: No. [00:12:36] Speaker 06: Not that comes to mind. [00:12:38] Speaker 06: Well, with respect to maybe the counterclaim, which I guess I elaborated on that point, and I think you had asked. [00:12:47] Speaker 06: why the government wouldn't have the right to immediately counterclaim. [00:12:50] Speaker 06: I think it's because it is tied to the right of a trial where if the result of the trial is a lower award or no liability, then of course, I don't think anybody would have the right to continue to hold on to something that they had been adjudicated not to have a legal right to. [00:13:10] Speaker 06: I just think it's important to recognize that [00:13:13] Speaker 06: in judicial proceedings where you have to overcome maybe a motion to dismiss and summary judgment. [00:13:18] Speaker 06: Someone hasn't actually lost their case until it goes to trial. [00:13:22] Speaker 06: Thanks so much, Mr. Farrar. [00:13:24] Speaker 06: Thank you. [00:13:25] Speaker 02: Thank you. [00:13:25] Speaker 02: Let me make sure my colleagues don't have additional questions for you, Mr. Farrar. [00:13:29] Speaker 02: Thank you. [00:13:29] Speaker 02: Ms. [00:13:31] Speaker 02: Palmer-Bell. [00:13:34] Speaker 03: Good morning, Your Honor. [00:13:35] Speaker 03: So may it please the court? [00:13:36] Speaker 03: My name is Katherine Palmer Ball and I represent the appellee in this matter, Steve Jerzik and his official capacity as the administrator of NASA. [00:13:45] Speaker 03: One point I just like to make at the outset is to what the amicus stated as the government's position regarding the type of action Mr. Farrar seeks to bring here. [00:14:00] Speaker 03: I would not say that the government has conceded that Mr. Farrar's pleadings [00:14:07] Speaker 03: seek de novo review, I would say that we have assumed for the sake of argument that they do. [00:14:13] Speaker 03: And that even even making that assumption, the the acceptance and retention of the administrative remedy precludes him from proceeding in this suit at this time. [00:14:27] Speaker 02: Just to be clear. [00:14:28] Speaker 02: So the practical consequence of that is that I think you have conceded it for purposes of appeal. [00:14:33] Speaker 02: You're just you're just holding out your [00:14:36] Speaker 02: ability to make that argument in the district court. [00:14:38] Speaker 02: If there were a Ray man, is that where you're headed with that? [00:14:43] Speaker 03: Um, I think we, uh, we would, we would not say we have conceded it. [00:14:49] Speaker 02: Um, we would find I guess, I mean, I guess what my question is this for our purposes as an appellate court, your brief comes to us without contesting that proposition. [00:15:00] Speaker 02: So [00:15:01] Speaker 02: I don't know if there's any practical distinction between a concession and an assumption as far as we're concerned. [00:15:07] Speaker 02: It seems to me that we're in the same place vis-a-vis the government that we assume for our purposes, which is tantamount to a concession, that you're not disputing that point. [00:15:15] Speaker 02: Now, what you may or may not do with that on district court, that's not our bailiwick, but for our purposes, is there any practical difference? [00:15:25] Speaker 03: No, we assume for purposes of this. [00:15:26] Speaker 02: OK, I just wanted to make sure I wasn't missing where the government was. [00:15:28] Speaker 02: OK. [00:15:29] Speaker 03: Yes. [00:15:31] Speaker 03: And we believe that under this court's holding in Scott, that a federal employee in the situation, such as Mr. Farrar, who has prevailed at the administrative level and was awarded a remedy, has a choice. [00:15:49] Speaker 03: He can accept that disposition and the remedy, or alternatively, he can seek to bring a trial de novo. [00:15:56] Speaker 03: um, in federal court and, and having made that election, um, he should have to reject the, all aspects of the administrative proceeding, including the remedy in order to proceed. [00:16:10] Speaker 03: And, and part of the reason for that is that, you know, as I think the court has sent to that in these cases that, um, they can take some time and that those remedies become more difficult to unwind. [00:16:26] Speaker 03: with the passage of time. [00:16:27] Speaker 03: And so to save the way to go about this for the end of a case or through a counterclaim, it really should be something that is decided at the beginning and upfront. [00:16:42] Speaker 00: Unless we're inventing such a rule on some sort of equitable grounds, I don't see a basis for that in the statute. [00:16:53] Speaker 00: Can you [00:16:56] Speaker 00: direct me to some language in any of the operative statutes that would require this procedure? [00:17:03] Speaker 03: The government's position is that the term civil action in the statute is under Supreme Court precedent means a trial de novo. [00:17:11] Speaker 03: And that is what our argument rests upon in this court's holding in Scott that [00:17:16] Speaker 03: to seek a trial de novo under the circumstances should mean disgorgement of the remedy. [00:17:24] Speaker 00: But Scott only said to seek a trial de novo means you have to seek a trial de novo, i.e. [00:17:31] Speaker 00: a trial on all of the issues. [00:17:34] Speaker 00: It doesn't say anything about disgorgement. [00:17:38] Speaker 00: Disgorgement, I mean, what authority is there that disgorgement is part of trial de novo and what trial de novo means? [00:17:46] Speaker 00: And doesn't our decision in pain undermine your argument? [00:17:52] Speaker 03: I think Scott did not face the precise issue presented here, but I think it very much follows from Scott and the court's language in Scott that, you know, [00:18:06] Speaker 03: employee has a choice to either accept the disposition and its award or to proceed with a de novo action? [00:18:17] Speaker 00: Well, to the extent that there's a problem here, hasn't the EEOC resolved it with 29 CFR 1614.502? [00:18:32] Speaker 03: Your honor, with respect to the change to 120 days that was referenced, perhaps that is not what happened in this case. [00:18:44] Speaker 03: In this case, the commission order did require the agency to comply within 60 days. [00:18:49] Speaker 00: And the government could have asked for sort reconsideration of that, right? [00:18:54] Speaker 03: Right. [00:18:54] Speaker 03: And the government did not seek reconsideration of that order in this case. [00:18:58] Speaker 00: So I mean, the EEOC, [00:19:02] Speaker 00: is obviously we should presume they're aware of their own regulations. [00:19:07] Speaker 00: The regulation says ordinarily you have 120 days unless the agency orders otherwise, unless we order otherwise. [00:19:16] Speaker 00: For whatever reason in their wisdom, the EEOC made the award payable in 60 days here. [00:19:26] Speaker 00: I mean, basically to the extent that NASA is in a conundrum, it's in the conundrum because the EEOC decided for whatever reason that the award should be paid sooner than the 120 days. [00:19:41] Speaker 00: I mean, that sounds like the rule contemplated that that could happen. [00:19:48] Speaker 00: And I don't see [00:19:52] Speaker 00: why we as a court should try to unwind that. [00:20:00] Speaker 03: I think the reason to do so is, you know, the courts holding it Scott and the nature of a, of the trial de novo and that the concepts that it would, it would not be fair for to, to litigate a new, [00:20:16] Speaker 03: the same determination while maintaining the benefits of the prior decision that you are seeking to, that you have stepped away from. [00:20:25] Speaker 02: One thing I don't quite follow about this is that it seems like the whole predicate of having this rule, the regulation adopted to give the government time. [00:20:34] Speaker 02: The idea is one, expand the window so that the government can know before it has to pay up whether the complaining party is going to bring a suit. [00:20:45] Speaker 02: If the whole point of that was allowed to the government to make an intelligent decision about whether to pay, that seems to presume that there is no automatic entitlement, automatic requirement to disgorge by filing suit. [00:20:57] Speaker 02: Because if there were, then there wouldn't have been any reason to have the extended time window. [00:21:07] Speaker 03: I think that, [00:21:10] Speaker 03: you know, as I say, it was not, it was not the situation that we're in in this case. [00:21:17] Speaker 03: The NASA was faced with the choice, you know, and NASA was bound to comply with the EEOC order and did so. [00:21:25] Speaker 03: And it did not have, you know, the opportunity. [00:21:31] Speaker 03: That's the factual circumstances that this case has arisen in. [00:21:37] Speaker 07: This Palmer ball, I think that, um, [00:21:40] Speaker 07: the government might have a common law equitable estoppel argument to block this suit based on Mr. Farrar's acceptance of the EEOC award. [00:21:55] Speaker 07: But you didn't argue common law equitable estoppel. [00:21:59] Speaker 07: My instinct is that that's probably [00:22:05] Speaker 07: a forfeited argument. [00:22:11] Speaker 07: Any reason why I should not treat that as a forfeited argument? [00:22:17] Speaker 03: Your honor, I think we did say use language in our brief such that it would be fundamentally unfair to proceed in that manner and to the extent that the court views that as [00:22:35] Speaker 03: encapsulating a kind of equitable, estoppel argument. [00:22:39] Speaker 03: I think that argument was in our brief. [00:22:53] Speaker 03: I would note also that the regulation in subpart B does put forth different [00:23:02] Speaker 03: I just thought it was an interesting comparison of the EEOC regulation, how they treat different aspects of relief. [00:23:09] Speaker 03: And the regulation does seem to take into account the same concern that NASA has put forth here about when it comes to a monetary remedy, once the monetary remedy changes hands, it can be difficult to unwind that. [00:23:26] Speaker 03: And so it affords the agency the ability to delay the payment [00:23:32] Speaker 03: in under these circumstances where reconsideration is permitted. [00:23:36] Speaker 03: And I think the same principles could be drawn here. [00:23:41] Speaker 00: But it seems significant then that the agency didn't avail itself of its right to seek reconsideration. [00:23:50] Speaker 00: I mean, if anything, the equities are against the government here because you didn't [00:23:57] Speaker 00: seek to use all of the remedies that you had before the agency, before the EEOC. [00:24:04] Speaker 03: The agency did not seek reconsideration. [00:24:06] Speaker 03: That's correct, your honor. [00:24:08] Speaker 00: So that would seem to be that if you had an opportunity to seek relief from having to pay out the money and you didn't, and then you come here and you say to us, this is all unfair, but you sat on your rights below [00:24:28] Speaker 00: that would seem to counsel against the force of any equitable argument you can make before us. [00:24:39] Speaker 03: I think the government's position is that Mr. Farrar reset everything when he saw the civil action de novo. [00:24:46] Speaker 03: And I see that I'm out of time. [00:24:47] Speaker 03: I'm happy to answer any further questions, but if the panel doesn't have any, then we would request that. [00:24:55] Speaker 02: I have one quick question, which is, [00:24:57] Speaker 02: How would this play out for non-monetary relief? [00:25:00] Speaker 02: So for example, if there were equitable relief in the nature of a reinstatement or something, I don't know how you disgorge a reinstatement. [00:25:08] Speaker 02: And if the person's back on the job, but there's some overarching principle that says you have to disgorge, what does that mean for non-monetary equitable forms of relief that might be bound up in the award that an agency, that the EEOC makes? [00:25:26] Speaker 03: Yes, Your Honor, I think it does become a more difficult question when you consider different aspects of relief. [00:25:32] Speaker 03: The bright line rule that the government is advocating is that an individual would have to forswear all facets of the relief awarded. [00:25:43] Speaker 03: I think the EEOC regulation that the court drew the party's attention to last evening, it comes up with a way of differentiating between reinstatement versus [00:25:56] Speaker 03: monetary relief in subsection B. And it envisions a restoration to a position in a temporary or provisional capacity pending the outcome of the reconsideration. [00:26:11] Speaker 03: And so it treats those two elements of relief differently. [00:26:15] Speaker 02: Right. [00:26:16] Speaker 02: I think the agency can construct or an agency could construct a regulatory regime that takes account of these. [00:26:21] Speaker 02: But if there's some antecedent principle that's supposed to tell us that there's [00:26:26] Speaker 02: naturally an obligation to put yourself back to the position you were in before. [00:26:31] Speaker 02: It's just not entirely clear to me how that works out with non-monetary relief. [00:26:38] Speaker 03: I think under the rule that the government advocates, it would have to be that you reject all aspects of the administrative remedy in order to challenge them. [00:26:50] Speaker 02: under the rule you adopt, it's not that you rejected, you would have, in other words, you don't think there was a problem with accepting it. [00:26:57] Speaker 02: It's that you think the problem is that having accepted it, you have to return it, right? [00:27:03] Speaker 02: That's, as I understand it, the government's position. [00:27:05] Speaker 02: It's not as if he was precluded from bringing suit the moment that he accepted, or am I wrong? [00:27:10] Speaker 03: No, he's not precluded from bringing suit, he's precluded from proceeding with the action until disgorgement occurs. [00:27:16] Speaker 03: Until disgorgement? [00:27:18] Speaker 02: That's what I thought your position was. [00:27:20] Speaker 02: And then there becomes a question of how you do that when what you've accepted is not just monetary relief, but is other stuff too, as to which it's not as easy to contemplate how you return it. [00:27:31] Speaker 03: Yes, I think the questions get more difficult. [00:27:33] Speaker 03: And I think it's within a district court's discretion as well how to set that in process moving forward with the suit. [00:27:43] Speaker 00: OK. [00:27:44] Speaker 00: So if the EEOC orders reinstatement, [00:27:48] Speaker 00: it's done that because it found discrimination and it found that that the employer wrongfully terminated the employee. [00:28:00] Speaker 00: And you believe that if the employee is going to challenge any part of the award, um, [00:28:11] Speaker 00: damages or attorney's fees or any part of the award and therefore under Scott has to seek a trial de novo, then what has to happen is that the agency that the EEOC found acted unlawfully. [00:28:33] Speaker 00: Basically, they get the status quo ante [00:28:38] Speaker 00: of their unlawful action according to the EEOC until the court decides in that the employee gets no benefit at all of the EEOC determination. [00:28:58] Speaker 03: Yes, Your Honor. [00:28:58] Speaker 03: Pending the outcome of the district court action, the employee is required to [00:29:05] Speaker 03: to prove liability anew. [00:29:07] Speaker 03: And so our position is that they have to step away from the remedy received and the underlying decision that they're challenging. [00:29:21] Speaker 02: Thank you, Ms. [00:29:22] Speaker 02: Palmer. [00:29:22] Speaker 02: Well, let me make sure my colleagues don't have additional questions for you. [00:29:27] Speaker 02: Thank you. [00:29:27] Speaker 02: Ms. [00:29:29] Speaker 02: Robinette, we'll give you two minutes for rebuttal. [00:29:33] Speaker 05: Thank you. [00:29:34] Speaker 05: Just two quick points I wanted to make. [00:29:37] Speaker 05: It seems like a lot of what's animating the government's concern in this case are background assumptions or intuitions about a plaintiff's ability to repay should he ultimately be unsuccessful in this court. [00:29:51] Speaker 05: No matter how well founded those assumptions or intuitions may be, [00:29:56] Speaker 05: we would pop that the court fashioning a legal rule based on those assumptions and the absence of any statutory authority or precedent. [00:30:07] Speaker 05: The second point pertains to trial de novo. [00:30:12] Speaker 05: We don't disagree with anything the government says about civil action or de novo review or what the plaintiff must prove before the district court. [00:30:23] Speaker 05: Our argument is that [00:30:25] Speaker 05: Nothing about allowing a plaintiff to retain his administrative award impacts this court's ability to review the case in de novo without deference to any previous findings and undertake a de novo review of the action. [00:30:47] Speaker 02: Thank you. [00:30:48] Speaker 02: Make sure my colleagues don't have questions for you on rebuttal. [00:30:51] Speaker 02: Thank you. [00:30:52] Speaker 02: Thank you, counsel. [00:30:53] Speaker 02: Thank you to all counsel. [00:30:55] Speaker 02: Ms. [00:30:55] Speaker 02: Robinette, you were appointed by the court to support appellants arguments in this matter, and the court thanks you and your colleagues for your assistance.