[00:00:01] Speaker 00:
Phase number 20 of 1732, Alexander J. Bustani et al.

[00:00:06] Speaker 00:
Avalance versus American Federation of Government Employees AFL-CIO.

[00:00:11] Speaker 00:
Ms.

[00:00:11] Speaker 00:
Jenkins for the Avalance, Ms.

[00:00:13] Speaker 00:
Alves for the Avalance.

[00:00:25] Speaker 03:
Good morning.

[00:00:28] Speaker 06:
Good morning.

[00:00:29] Speaker 06:
Um, if we support, my name is Eleanor Jenkins and I represent this on et al.

[00:00:35] Speaker 06:
Um, because of my limited time, we're going to get straight to it.

[00:00:40] Speaker 06:
Our first objection on the trial of trial court's decision, um, was that they summarily dismissed two of the plaintiffs, Lauder Dale and McCarran.

[00:00:55] Speaker 06:
Um, and they relied on the case Himmler.

[00:00:57] Speaker 06:
of the Southern District of New York.

[00:01:00] Speaker 06:
They didn't have to rely on it, but the trial judge relied on that case.

[00:01:05] Speaker 06:
That case is in opposite to what was done here.

[00:01:09] Speaker 06:
It was not a full and fair feathering out of whether there were material facts before he granted summary judgment and dismissed two of the complaints.

[00:01:23] Speaker 02:
When you agreed that the motion to dismiss standard and the summary judgment standard are different, I mean, motion to dismiss, we'd be looking at the.

[00:01:30] Speaker 02:
I really could hear that.

[00:01:31] Speaker 02:
Sure.

[00:01:32] Speaker 02:
Wouldn't you agree that the motion to dismiss standard is different from the summary judgment standard?

[00:01:37] Speaker 02:
In other words, on the motion to dismiss, we're looking at complaint insufficiency of allegations.

[00:01:42] Speaker 02:
But by the time you get the summary judgment, you would have gone through interrogatories, responses, depositions, et cetera.

[00:01:48] Speaker 02:
And that is the evidence at that time.

[00:01:50] Speaker 06:
That is true.

[00:01:50] Speaker 06:
We had gone through the interrogatories.

[00:01:55] Speaker 06:
We had gone through pretrial hearing at which the

[00:01:59] Speaker 06:
trial judge did not allow Ms.

[00:02:02] Speaker 06:
Lauderdale to testify.

[00:02:04] Speaker 06:
He said, we're going to take testimony only from Mr. McCarran and it's going to be very limited.

[00:02:11] Speaker 06:
We're not going to take testimony from her.

[00:02:14] Speaker 06:
So there was no feathering out of a lot of the issues before he got to that.

[00:02:19] Speaker 02:
What I'm trying to get you to do is focus on the point in time of the record.

[00:02:25] Speaker 02:
In other words, motion to dismiss again, relying on a complaint and then summary judgment.

[00:02:30] Speaker 02:
What is the evidence that has been developed up to that point that the judge gets to assess and determine if there's any genuine issues of fact versus what's then at trial, which is actually testified to and things of that nature.

[00:02:43] Speaker 06:
Right.

[00:02:43] Speaker 06:
What had been developed at that point interrogatories had been taken.

[00:02:47] Speaker 06:
There was not a whole lot that had been developed.

[00:02:53] Speaker 02:
at that point in time.

[00:02:55] Speaker 02:
And then that's my point too, because then Ms.

[00:02:59] Speaker 02:
Bassani is thinking into the future about what would be developed for trial versus what the judge's limited record is at that point in time.

[00:03:07] Speaker 06:
Yes, yes, that's true.

[00:03:09] Speaker 06:
That's true.

[00:03:11] Speaker 06:
Bassani and I was always figuring we're developing this as we go.

[00:03:15] Speaker 06:
And that may have been an error on their part to think that this is going to develop as we go.

[00:03:23] Speaker 06:
But then the trial judge then held back because they knew there was going to be a free trial hearing.

[00:03:32] Speaker 06:
And then he did not let one of the plaintiffs even testify there.

[00:03:36] Speaker 06:
He said, I'm taking very limited testimony.

[00:03:40] Speaker 06:
And he limited that as well.

[00:03:47] Speaker 06:
Can I move on?

[00:03:48] Speaker 06:
Because I really want to get to the real central point

[00:03:51] Speaker 06:
is that this case was tried.

[00:03:54] Speaker 06:
The principals, J. David Cox, who took the action against the union president, vice president, and treasurer, J. David Cox was the president of AFGE national.

[00:04:07] Speaker 06:
He took the action.

[00:04:09] Speaker 06:
He put in place a trustee, Nate Nelson, to carry out the trusteeship.

[00:04:16] Speaker 06:
Neither of these individuals, though they were listed

[00:04:21] Speaker 06:
early on, on AFGE's witness list, neither of them came to testify.

[00:04:29] Speaker 06:
Now, what you have from AFGE now is that, oh, we didn't object, that the Staniatel did not object.

[00:04:39] Speaker 06:
However, we went back in the record and it's quoted in our reply brief.

[00:04:45] Speaker 06:
We put the whole objection in the record that, I mean, in the brief,

[00:04:51] Speaker 06:
that the attorney, Mr. Keating, went on at length as to what he would have done to get Mr. Cox here in order to

[00:05:06] Speaker 04:
Ms.

[00:05:07] Speaker 04:
Jenkins, even if you preserved it below the trial court, even if you preserve the issue in the trial court, how did you, can you point to where you preserve that issue?

[00:05:18] Speaker 04:
Yes, exactly.

[00:05:20] Speaker 04:
In your opening brief to this court?

[00:05:24] Speaker 04:
Appendix 220, 229.

[00:05:28] Speaker 04:
No, but in your opening brief to this court?

[00:05:32] Speaker 04:
Oh, in your opening brief to this court?

[00:05:34] Speaker 06:
Yes.

[00:05:36] Speaker 03:
Let me see.

[00:06:06] Speaker 04:
The only place that I see it is in the statement of issues on page two.

[00:06:35] Speaker 04:
What page are you looking at?

[00:06:38] Speaker 04:
I'm just wondering if there's, I don't see this point developed further in the actual brief.

[00:06:46] Speaker 06:
In the actual brief, in the reply brief, I think that what I considered was that it was not clear enough that we had maybe objection below.

[00:06:57] Speaker 06:
And so what we did in the reply brief was quoted it instead of just referring to it.

[00:07:04] Speaker 06:
We gave the entire quote on page six.

[00:07:08] Speaker 06:
We quoted the language from the transcript of what Mr. Keating had to say about it because we did state that, and I can't find it exactly right now, but I will refer to it later if you need.

[00:07:28] Speaker 06:
We did object.

[00:07:32] Speaker 05:
It wasn't the government's point that you are focusing in, even in your reply brief.

[00:07:42] Speaker 05:
And of course the government didn't have a chance to respond to this yet, that what happened at one point, but then the matter proceeded before the trial court.

[00:07:57] Speaker 05:
And at the end of that further proceeding,

[00:08:02] Speaker 05:
defense counsel presented no objection.

[00:08:07] Speaker 05:
Would you agree with that?

[00:08:12] Speaker 06:
Defense counsel.

[00:08:15] Speaker 06:
I don't know what they did at that point.

[00:08:18] Speaker 06:
What happened is after the judge ruled and that's around a two 32 to 33.

[00:08:25] Speaker 05:
I'm not focusing on what happened after that.

[00:08:31] Speaker 06:
The court, after the objection was made and the trial judge ruled that he would allow the case to proceed without Mr. Cox and without Mr. Nelson, then counsel for Bastani said, I have to do what the trial judge has said to do to go ahead with this process of allowing

[00:09:00] Speaker 06:
actors to read the deposition into the record.

[00:09:06] Speaker 06:
He said, I have to go along with it.

[00:09:08] Speaker 06:
What could he do with that point?

[00:09:11] Speaker 06:
But do with the judge had ordered that this information was coming in.

[00:09:15] Speaker 06:
It was coming in without Mr. Cox, without Mr. Nelson.

[00:09:20] Speaker 06:
And there was nothing else that that plaintiffs could do at that point.

[00:09:25] Speaker 06:
But to lay the objection there, to bring it to this court,

[00:09:31] Speaker 06:
but there was nothing that, that, that they could do in the district court.

[00:09:38] Speaker 04:
Do you have an idea why they're the claims of, of, um, Astani and the others was not framed as a freedom of association?

[00:09:48] Speaker 06:
I don't know.

[00:09:50] Speaker 06:
And that's one of the things I wanted to say about Himmler that the judge relied on Himmler.

[00:09:56] Speaker 06:
But one of the concepts in Himmler is that,

[00:10:00] Speaker 06:
there can be this distant group that you're a faction that you're seeing that way in union political alleys.

[00:10:12] Speaker 06:
And that's how you are perceived.

[00:10:14] Speaker 06:
And that's how the case was presented.

[00:10:17] Speaker 06:
Um, that, that whatever the Stani was doing, whatever, uh, president Cox felt about the Stani

[00:10:27] Speaker 06:
He felt about the people who had run on Pestani's ticket and the people who were in process with Pestani, and that was Lauderdale and McCarran, that they were a triumvirate.

[00:10:42] Speaker 04:
Any further questions?

[00:10:44] Speaker 04:
Ms.

[00:10:44] Speaker 04:
Rogers?

[00:10:46] Speaker 04:
No, thank you.

[00:10:48] Speaker 04:
We'll give you a couple of minutes on rebuttal.

[00:11:14] Speaker 01:
Good morning.

[00:11:15] Speaker 04:
Good morning.

[00:11:17] Speaker 01:
May it please the court.

[00:11:19] Speaker 01:
Denise Warte-Elves on behalf of the American Federation of Government Employees.

[00:11:24] Speaker 01:
The court should affirm the district court's decision to dismiss plaintiff appellant Loreda Dale and plaintiff apparent McCarran's claims and affirm the jury's verdict in favor of AFTE for three reasons.

[00:11:37] Speaker 01:
First,

[00:11:38] Speaker 01:
The district court did not abuse its discretion in finding Mr. Cox unavailable and allowing excerpts from his deposition and testimony from the evidentiary hearing to be read to the jury.

[00:11:50] Speaker 01:
Moreover, plaintiff appellant failed to properly preserve this issue when they did not object to the lower court's ruling, nor have they raised the issue in the air opening brief before this court.

[00:12:01] Speaker 01:
Second.

[00:12:02] Speaker 05:
I think the reply brief shows there was an objection.

[00:12:05] Speaker 05:
At least there's a way to read

[00:12:08] Speaker 05:
the attorney's comment that he was preserving the objection.

[00:12:18] Speaker 05:
And then they proceeded to this next phase, the alternative way of presenting the evidence.

[00:12:24] Speaker 05:
So to that extent, it could be read most favorably to the defendant that there was an objection, but that doesn't respond to your

[00:12:37] Speaker 05:
point about there was no abuse of discretion.

[00:12:42] Speaker 01:
Your honor, if I may, I would explain in response to your statement that the objection that was made by Plaintiff Appellant's Council was, and if you see the colloquy that takes place between the judge and Plaintiff Appellant's Council,

[00:13:03] Speaker 01:
there is this colloquy that is addressing Mr. Keating's concerns regarding rule 804 of the federal rules of evidence, but specifically with regards to A5.

[00:13:15] Speaker 01:
And there you see where Mr. Keating is expressing concern that under the federal rules of evidence, the proponent of testimony would be responsible for procuring the witness.

[00:13:32] Speaker 01:
And Mr. Keating expressed concern that AHE had not attempted to, in fact, subpoena Mr. Cox.

[00:13:41] Speaker 01:
But the important point here is that even though Mr. Keating, in fact, expressed that issue and that concern to the court, the court did not rely on that and expressed to Mr. Keating that he opposed that argument and that that argument, in fact, was not the reason

[00:14:02] Speaker 01:
for his decision.

[00:14:05] Speaker 05:
I'm not really taking issue with the way you want to read the record.

[00:14:08] Speaker 05:
All I'm suggesting is that there could be a way to read the record that is more favorable here to the defendants, but I don't think that responds to the argument that there was no abuse of discretion here.

[00:14:23] Speaker 05:
given the nature of abusive discretion, where alternative reasonable options are not an abuse of discretion as opposed to an error of law.

[00:14:34] Speaker 05:
That was the only point I was making.

[00:14:36] Speaker 05:
So it's not unusual to read records where counsel says, I'm not surrendering my objection.

[00:14:45] Speaker 05:
But moving along,

[00:14:49] Speaker 05:
You know, what can I do then?

[00:14:51] Speaker 05:
Trial court has ruled, he wants the evidence to come in.

[00:14:54] Speaker 05:
And so I take your point about no objection to A4, only to A5.

[00:15:01] Speaker 01:
But I think an important point here is yes, no objection to A4, an objection to A5.

[00:15:07] Speaker 01:
But at the moment that the court then issued his ruling saying that Mr. Cox was unavailable, according to rule 804, A4, under the federal rules of evidence, Mr. Keating could then

[00:15:19] Speaker 01:
object on that basis and a review of the Council.

[00:15:23] Speaker 01:
We're agreeing.

[00:15:25] Speaker 01:
I'm so sorry to not hear you.

[00:15:29] Speaker 05:
I'm not disputing your point.

[00:15:33] Speaker 05:
I'm just offering an alternative view, but I don't think it's worth pursuing here.

[00:15:43] Speaker 03:
Understood.

[00:15:43] Speaker 03:
Thank you for clarifying.

[00:15:46] Speaker 04:
Can I just ask you an actual question?

[00:15:49] Speaker 04:
Who was Mr. Stennis?

[00:15:52] Speaker 04:
Who was he?

[00:15:52] Speaker 04:
Mr. Stennis, who read Mr. Cox's testimony, who was he?

[00:15:57] Speaker 01:
Mr. Stennis is an employee of AFGE.

[00:16:00] Speaker 01:
He's an attorney at the Office of the General Counsel at AFGE.

[00:16:07] Speaker 01:
So aside from not objecting with regards to in order to preserve the issue,

[00:16:17] Speaker 01:
Plaintiff appellants also did not object to the, and did not object to the lower court's ruling.

[00:16:22] Speaker 01:
They have not raised this issue in this opening, in their opening brief here before the court.

[00:16:28] Speaker 01:
The second point I wanted to make as to why the decision should be affirmed is that the district court properly dismissed plaintiff appellants Lauderdale's claims because there's no specific evidence in the record showing that she engaged in protective speech.

[00:16:44] Speaker 01:
And it properly dismissed McCarran's claim because there was no evidence of the record showing that Mr. Cox or Mr. Bun knew that McCarran had engaged and protected the plaintiff.

[00:16:54] Speaker 01:
And three, the court should reject appellant plaintiffs' arguments which were not raised with the district court or which are not supported by the record.

[00:17:02] Speaker 01:
And even if they were, it does not provide the court with the basis to overturn the district court's decision.

[00:17:08] Speaker 01:
I would like the opportunity to address a few points that

[00:17:15] Speaker 01:
Ms.

[00:17:15] Speaker 01:
Jenkins raised, I would note that Ms.

[00:17:18] Speaker 01:
Jenkins is also, is one of the same with Ms.

[00:17:20] Speaker 01:
Lauderdale, who is plaintiff in this case, one of the plaintiffs.

[00:17:27] Speaker 01:
There is, when you are looking at the moment that you find that a witness is unavailable

[00:17:46] Speaker 01:
pursuant to 804A4.

[00:17:49] Speaker 01:
The testimony that was brought in and read by Mr. Senes, the deposition, the excerpts from the deposition that were also read by Mr. Senes, those were excerpts of the deposition and of the evidentiary hearing where plaintiff appellants, their counsel had an opportunity

[00:18:15] Speaker 01:
to cross-examine, to ask questions of, in fact, Mr. Cox.

[00:18:21] Speaker 01:
So to the extent that there is an argument, that plaintiff appellants are making an argument that there was harm in Mr. Cox, his testimony, and the excerpts of the deposition being allowed into the record and him not being deemed unavailable, it is AFGE's position that there was no harm.

[00:18:47] Speaker 01:
I would also like to address that, aside from the court not abusing its discretion in finding Mr. Cox unavailable, I would like to bring to your attention that in the opening brief, they did not, in fact, raise the argument properly before this court with regards to preserving

[00:19:16] Speaker 01:
their argument as to 804A4.

[00:19:21] Speaker 01:
If you look at the opening brief, specifically with regards, I would direct the court's attention to page 13, you will see that there is no mention of no argument addressing 804A4.

[00:19:36] Speaker 01:
In fact, they don't address 804 at all.

[00:19:39] Speaker 01:
In the opening brief, they now modify their argument, change their argument to

[00:19:45] Speaker 01:
In fact, not object or not address whether or not the court aired in admitting or allowing the transcript and the deposition to be read to the jury.

[00:19:57] Speaker 01:
And instead, now they're arguing that the court in fact aired in allowing Mr. Cox to hide behind the 100 mile limit of enforcement subpoenas.

[00:20:11] Speaker 01:
appears to argue a violation of federal civil procedure 45C1A.

[00:20:15] Speaker 01:
I would finally bring to the court's attention that ultimately plaintiff appellants have not shown that they were harmed in this case.

[00:20:30] Speaker 01:
First, as I already argued, plaintiff appellants had the opportunity to close Mr. Cox, had the opportunity to cross-examine,

[00:20:39] Speaker 01:
We did have an evidence hearing where he was questioned.

[00:20:44] Speaker 01:
The court provided instructions to the jury with regards to how to treat the testimony that was being introduced and read to them.

[00:20:53] Speaker 01:
Moreover, plaintiff appellant's counsel was given the opportunity to in fact argue to the jury in disclosing arguments as to the ability to consider Mr. Cox's unavailability and to in fact

[00:21:09] Speaker 01:
question the credibility of what was heard by the jury.

[00:21:18] Speaker 01:
In conclusion, we would ask that this court affirm the district court's decision to dismissing Lauderdale and McCarran's claims and affirm the jury's verdict in favor of AFC.

[00:21:34] Speaker 01:
Thank you.

[00:21:39] Speaker 04:
Ms.

[00:21:39] Speaker 04:
Jenkins will give you two more minutes.

[00:21:57] Speaker 06:
I think I heard that AFGE saying that the objection was not reserved.

[00:22:06] Speaker 06:
I think that's what I heard.

[00:22:08] Speaker 06:
And Mr. Keating, and we laid it out in the reply brief, but Mr. Keating also added, and we couldn't put everything in the reply brief, he noted, and this is at Appendix 231, that the fact that Cox was not here and that Nate Nelson was not here

[00:22:32] Speaker 06:
that it deprives Mr. Bustani of the right to have the jury review all of the key witnesses in person.

[00:22:41] Speaker 06:
This is not what the rules intended.

[00:22:44] Speaker 04:
Ms.

[00:22:44] Speaker 04:
Jenkins, I think you would do best to focus on whether you've preserved this argument in your opening brief rather than as an objection below in the trial.

[00:22:54] Speaker 04:
Can you point to where it's been preserved in the opening brief?

[00:22:58] Speaker 04:
In the opening brief.

[00:23:00] Speaker 04:
Before this court?

[00:23:03] Speaker 06:
Okay, that may have been, I don't see it written in the opening brief, but that's why you have a reply brief.

[00:23:12] Speaker 06:
We did not know that they were going to say that it had not been preserved.

[00:23:19] Speaker 06:
So there was no need to sit and do a recitation of we reserved this, we reserved this not until we got a police brief.

[00:23:30] Speaker 06:
Did we know that that was in contention?

[00:23:33] Speaker 06:
It was very clear as much time as was spent on this, we didn't know that they would make that base argument because it shouldn't be, because it was clearly deserved.

[00:23:47] Speaker 06:
It clearly was.

[00:23:48] Speaker 06:
So no, we didn't expound on that in the opening brief.

[00:23:52] Speaker 06:
We didn't feel it was necessary.

[00:23:54] Speaker 06:
But when we got the brief, we said, well, that's a major contention.

[00:23:58] Speaker 06:
And we got to address it.

[00:24:00] Speaker 06:
And that's why I think

[00:24:02] Speaker 06:
the system is set up, the rules are set up so that you can have a reply brief and you can get to those elements that you didn't in the first one because you did not know that they were in contention.

[00:24:18] Speaker 04:
Any further questions?

[00:24:20] Speaker 04:
And let me just add that.

[00:24:31] Speaker 03:
Yes.

[00:24:32] Speaker 03:
seconds.

[00:24:33] Speaker 06:
They spoke about the deposition testimony coming in, but I think it's crucial that people, I'm sure your judges, you understand that that does not give the jury an opportunity to judge the witnesses.

[00:24:49] Speaker 06:
What they had instead of Nate Nelson, they had, I think for him, uh, what's her name?

[00:25:00] Speaker 06:
Keisha Williams.

[00:25:01] Speaker 06:
who was a trained attorney.

[00:25:04] Speaker 06:
They had an attorney giving testimony for a man who knows absolutely nothing about the law, who is not as well spoken as her, who is not as bright as her, whose demeanor is totally different than hers.

[00:25:21] Speaker 06:
How can the jury judge the demeanor of that witness, the truthfulness of that witness, anything about that witness?

[00:25:30] Speaker 04:
Thank you, Ms.

[00:25:31] Speaker 04:
Jenkins.

[00:25:31] Speaker 04:
You're out of time.

[00:25:32] Speaker 04:
Thank you.

[00:25:33] Speaker 03:
Thank you.

[00:25:34] Speaker 04:
Yes.

[00:25:34] Speaker 04:
The case is submitted.