[00:00:01] Speaker 01: Thanks number 22 that's 52 56 Robert and Miller a balance versus Martin J Grimberg chairman and federal deposit insurance corporation. [00:00:11] Speaker 01: Mr. Tisa amicus curiae pretty a balance miss Lyons for the appellees Good morning council. [00:00:17] Speaker 07: Mr. Tisa, please proceed when you're ready morning your honors Nathaniel Tisa is court appointed amicus with the court's permission. [00:00:24] Speaker 07: I'd like to reserve about three minutes for you [00:00:27] Speaker 07: The CSRA requires that a federal employee who successfully challenges an adverse employment action before an administrative judge shall be granted interim relief. [00:00:37] Speaker 07: FDIC has conceded, both in its brief and its August 30 letter to the court, that Robert Miller is entitled to interim relief under the statute and has even paid some of the amount that's owed. [00:00:46] Speaker 07: But this case has not moved. [00:00:48] Speaker 07: Mr. Miller vigorously disputes that FDIC has fully complied with its statutory obligations [00:00:54] Speaker 07: And more importantly, this appeal is not moved because the district court's order denying relief is still in place. [00:01:00] Speaker 07: This court can rectify that by reversing the district court for erroneously withholding relief and remanding for a calculation of the amount that's up. [00:01:08] Speaker 05: I'd like to, I'd like to- Can you, the last point when you said the appeal's not moved, what does it mean that the district court's order is still in place? [00:01:20] Speaker 05: Why does that prevent? [00:01:21] Speaker 07: So the order is right now the law of the case, and the order holds that Mr. Miller is not entitled to any form of preliminary injunction. [00:01:30] Speaker 07: FDIC's compliance is entirely voluntary. [00:01:33] Speaker 07: Even though they've paid Mr. Miller some of the amount that may be owed under the statute, if this court were not to reverse the district court, FDIC doesn't have to continue complying. [00:01:43] Speaker 07: It doesn't have to resolve these disputes. [00:01:45] Speaker 07: It's under no court order to pay out the full amount that's owed under the statute. [00:01:50] Speaker 05: If it had paid out the full amount, and I know you're an amicus, so I don't know if you're familiar with all the nuances, but if it has paid out the full amount, then does your argument still stand? [00:02:03] Speaker 07: If there was absolutely no dispute about the amount that was owed, then you could look at mootness a little differently here. [00:02:10] Speaker 07: A single dollar of dispute is usually enough to keep the case alive. [00:02:14] Speaker 07: If there was literally no dollar of dispute, then yes, that particular issue could be [00:02:19] Speaker 07: But I do want to note as well that Mr. Miller has broader potential requests for preliminary injunctive relief that he made below that the district court did. [00:02:28] Speaker 05: And which are? [00:02:29] Speaker 07: So the preliminary injunction could have gone more broadly than the statute requires. [00:02:33] Speaker 07: The statute requires pay and benefits from the period between the AJ's decision and the MSPB's final. [00:02:41] Speaker 07: That's about 19 months. [00:02:42] Speaker 07: But a preliminary injunction issued under the court's equitable discretion could order ongoing payment. [00:02:48] Speaker 07: until the case is resolved. [00:02:50] Speaker 07: It could also order different forms of non-monetary relief that Mr. Miller requested in his motion below. [00:02:56] Speaker 05: And do you read the papers below to go to that extent? [00:03:02] Speaker 07: We think if you look at Mr. Miller's motion, he basically bifurcates it into two requests. [00:03:06] Speaker 07: The first is for the court to comply with the statute and force the statute by providing interim relief. [00:03:13] Speaker 07: To remind the court at the time he moved for interim relief, the MSPB had not yet issued a final decision. [00:03:18] Speaker 07: So that period was still kind of accruing. [00:03:20] Speaker 07: And then the second half of the motion asked for broader forms of preliminary injunctive relief. [00:03:26] Speaker 07: That included ongoing pay. [00:03:28] Speaker 07: and several other additional non-monetary forms of relief. [00:03:31] Speaker 07: Computer access and things like that. [00:03:33] Speaker 07: That's right. [00:03:34] Speaker 07: Computer access, access to the FDIC's network, and an injunction prohibiting FDIC from doing certain investigatory and disciplinary actions. [00:03:43] Speaker 06: So I have a question about the non-monetary. [00:03:47] Speaker 06: Putting aside, I understand the point that's the monetary relief might not be moot if there's still a material dispute over the amounts. [00:03:54] Speaker 06: But in his motion below, this is page 334 of the appendix, he specifically limits it to until such time as the order of this court decides on defendant's petition for review. [00:04:09] Speaker 06: That, of course, hadn't happened when he made that motion when the district court ruled, but now it has. [00:04:14] Speaker 06: And so it seems to me that his request for the non-monetary relief by its terms has sort of expired. [00:04:22] Speaker 06: Is that something that, I don't mean to put you on the spot, but if that's something you've seen, I wonder if you have a response to that. [00:04:29] Speaker 07: Your Honor, from my recollection of the motion, there were certain phrasings when it came to certain aspects of the relief. [00:04:38] Speaker 07: I want to remind the court that Mr. Miller conceived of his appeal to the district court as an appeal rather than as a new case. [00:04:45] Speaker 07: So the proper language under the statute would be that he filed a new civil case. [00:04:48] Speaker 07: But at times, he referred to it as an appeal. [00:04:51] Speaker 07: At times, he referred to it as a petition for review. [00:04:54] Speaker 07: The way we read the motion, at least, was that you could interpret the request to extend until the district court decided the case, decided his, quote unquote, petition for review of the decisions that he was challenged. [00:05:14] Speaker 06: OK. [00:05:15] Speaker 06: Yeah, I think the concern is, so it actually relates to something else you said. [00:05:20] Speaker 06: Certainly the motion is divided into two parts. [00:05:24] Speaker 06: But in that second part, when he talks about, for example, the likelihood of success on the merits, my reading, at least, is that the only basis is still 7701. [00:05:35] Speaker 06: And what he's essentially doing in the preliminary injunction portion is trying to explain why he should be entitled to other types of relief. [00:05:42] Speaker 06: But he's still making clear that he's basing it on this statute. [00:05:46] Speaker 06: And so that sort of goes back to my first question. [00:05:49] Speaker 06: It would make sense for everything to be limited until the time that the board decided his appeal, because that's all that 7701 entitles him to. [00:06:04] Speaker 06: That's kind of the concern I would have for mootness on the non-monetary relief. [00:06:07] Speaker 06: I wonder what your response is. [00:06:09] Speaker 07: We think that when it comes to the monetary relief, the most straightforward way to read the motion is he's asking for it to order compliance with Section 771, like Your Honor mentioned. [00:06:25] Speaker 07: The non-monetary forms of relief certainly would be ongoing, at least, again, the way we read the request. [00:06:33] Speaker 07: Your return of his laptop, there's not really necessarily an end date on that. [00:06:37] Speaker 07: Access to the FDIC's network, no end date on that. [00:06:41] Speaker 07: And then the injunction of restraining the FDIC from investigating and disciplining on the same back pattern wouldn't have an end date, at least not an end date tied to the MSPB's final order. [00:06:55] Speaker 05: So looking past mootness for a second, can I just go to this question? [00:07:03] Speaker 05: So typically, when you have a motion for a preliminary injunction, there's a prong that involves likelihood of success on the merits. [00:07:10] Speaker 05: And the likelihood of success on the merits is the merits of the underlying action that's brought. [00:07:15] Speaker 05: And here you have what appears to me to be a twist on that, because the likelihood of success on the merits, and I'm not trying to be too picky about exactly how we do this, and I understand the need [00:07:25] Speaker 05: to construe the filings in a way that's consistent with what we usually do in this context. [00:07:30] Speaker 05: But the merits all go to the merits of the request for interim relief under 7701, which is just not something that's part of the underlying action as styled in the complaint that was filed in the district court. [00:07:43] Speaker 05: So and what we're reviewing now is the district court's denial of the preliminary injunction. [00:07:47] Speaker 05: That's what's before us in this appeal. [00:07:49] Speaker 05: And so how do we [00:07:52] Speaker 05: reverse the district court's denial of the preliminary injunction, when what the district court had before it was an argument as to the merits of something that didn't relate to the underlying action, which is what you typically have. [00:08:05] Speaker 05: In a PIA case, it would be likelihood of success on the merits of the underlying action for discrimination for a hostile work environment for those kinds of things, none of which has been resolved yet, ultimately, on the merits. [00:08:15] Speaker 05: But the motion for interim release slash preliminary injunction introduces something new as to this action. [00:08:21] Speaker 05: It's something old as to the underlying proceedings and everything I get that but as to this action, it introduces something new, because it's about interim relief under 7701 which is just isn't in the complaint. [00:08:32] Speaker 07: I think two responses to that first about the plan itself, and then second about the request for relief motion. [00:08:39] Speaker 07: So we think if you read the complaint, as Your Honor mentioned, kind of more liberally, because Mr. Miller is not a lawyer, he's a pro-state litigant, we do think that he does press the issues that ended up forming the basis for the interim relief request in the preliminary injunction motion. [00:08:54] Speaker 07: The complaint walks through what happened leading up to the indefinite suspension, walks through the decision, and then makes the same allegations that he eventually relies on in the preliminary injunction motion. [00:09:06] Speaker 07: The allegation that FDIC was trying to kind of force him into foreclosure, trigger regulation that could render him ineligible. [00:09:13] Speaker 07: So all the bones were there. [00:09:15] Speaker 05: But the relevant part is just what the ALJ. [00:09:17] Speaker 05: And in fact, I think the motion astutely says, don't look at any of the merits of the underlying stuff. [00:09:22] Speaker 05: Really, all you got to know is the ALJ gave me some relief. [00:09:26] Speaker 05: And then once the ALJ gave me some relief, there's obligation to enter a minimum relief. [00:09:30] Speaker 05: And now the FDIC actually agrees with that. [00:09:33] Speaker 05: But I didn't see any of that in the underlying action. [00:09:36] Speaker 07: So in the complaint, he does recount the proceedings that had happened up to that point. [00:09:42] Speaker 07: You're right. [00:09:42] Speaker 07: He didn't frame a separate cause of action as a count, if you will, as maybe a person trained in the law would. [00:09:50] Speaker 07: We think that that's forgivable. [00:09:52] Speaker 07: We hope that the court will find it hard to read it a little more liberally than it normally would. [00:09:57] Speaker 07: But to your Honor's point about the [00:10:01] Speaker 07: the fact that the AJ already found in his favor. [00:10:03] Speaker 07: We think that what Congress did is they created a mandatory form of preliminary relief. [00:10:09] Speaker 07: They just took out some of the kind of normal equitable discretion the district court would have when examining this type of question and provided very clear standards. [00:10:19] Speaker 07: If A, then B, right? [00:10:20] Speaker 07: If you have a prevailing party, a foreign administrative judge, then he receives interim relief. [00:10:26] Speaker 07: Mr. Miller is the prevailing party, therefore, he should receive interim relief. [00:10:30] Speaker 07: That's different than the normal kind of traditional equitable analysis that the court would do, but it is relatively simple. [00:10:37] Speaker 07: And we think that the complaint included all the facts and allegations. [00:10:41] Speaker 05: But for us to reverse, then we'd have to say that the district court should have discerned that and then should have granted the relief. [00:10:48] Speaker 05: And as you helped me point out in your reply brief, [00:10:51] Speaker 05: there's a motion pending in the district court to amend the complaint to include the count that would kind of tidy this up. [00:10:58] Speaker 07: Yeah, so that's already been granted. [00:11:00] Speaker 07: That was granted actually quite a while ago. [00:11:01] Speaker 07: So the amended complaint might have even since been another amended complaint. [00:11:05] Speaker 07: But Mr. Wheeler did go back and amend the complaint to include a separate count for the CSRA issue. [00:11:11] Speaker 07: So you could think of this also in terms of utility. [00:11:14] Speaker 07: Was the motion to amend the complaint was granted before the appeal was taken? [00:11:18] Speaker 07: No, it was granted after, so far as I know. [00:11:22] Speaker 07: We think he did it out of an abundance of caution once it became clear that the FDIC could object on that ground. [00:11:29] Speaker 06: So you have this argument about displacing the traditional equitable discretion. [00:11:36] Speaker 06: And I'd love to hear from you a little bit on that. [00:11:40] Speaker 06: But especially with this amended complaint, is anything at all stopping him from filing a motion for partial summary judgment if he's actually got a claim? [00:11:52] Speaker 06: wouldn't raise that kind of question at all. [00:11:54] Speaker 06: It seems like the most straightforward procedural vehicle to get this kind of relief early in the case. [00:11:59] Speaker 07: So Mr. Miller did argue at one point that the court could construe the motion for preliminary relief as a motion for summary judgment and kind of act on that basis. [00:12:14] Speaker 07: This probably could have been brought as a motion for partial summary judgment, but we also think it's appropriate as a motion for a preliminary injunction. [00:12:21] Speaker 07: We think that Congress just changed up the analysis and made a more focused preliminary injunction analysis required by the statute. [00:12:30] Speaker 05: And remind me, if the argument was made that it could be treated as a motion for partial summary judgment rather than preliminary injunction, was that before the appeal or after? [00:12:39] Speaker 07: So he certainly made it on appeal. [00:12:41] Speaker 07: We can definitely check and come back up and confirm for the court whether it was made specifically in the motions below. [00:12:47] Speaker 07: But we do know while he was briefing as a non-lawyer, in terms of the standards and the exact procedure, often kind of brought in multiple different types of procedures. [00:12:58] Speaker 06: An interesting complication is that if it was construed as a summary judgment motion, we wouldn't have jurisdiction right now. [00:13:04] Speaker 06: And that's why maybe I was suggesting on remand, that would be a path forward. [00:13:08] Speaker 06: But just briefly on this argument about our equitable discretion, it seems to me, on my read of the cases you rely on, typically the statute speaks directly to court's equitable authority and will say something like the court will grant an injunction if. [00:13:27] Speaker 06: Whereas this statute creates a clear entitlement to relief, but it's directed at the administrative process. [00:13:32] Speaker 06: It doesn't talk about injunctions and vehicles for relief. [00:13:35] Speaker 06: And so do I have that distinction right? [00:13:38] Speaker 06: Does it matter? [00:13:40] Speaker 07: Your Honor, we have a few arguments. [00:13:42] Speaker 07: We think that the statute is best read to apply to the court under these circumstances. [00:13:47] Speaker 07: But just on your last point, you're right that the court would like jurisdiction if this were a summary judgment motion at this stage. [00:13:54] Speaker 07: But we think that if you look at the structure of the statute and the legislative history that went into forming the interim relief requirement, it's very clear that this was supposed to be a preliminary form. [00:14:04] Speaker 07: It's known as interim relief. [00:14:06] Speaker 07: The whole point is to give these employees ongoing pay and benefits while they're awaiting a decision. [00:14:12] Speaker 07: So resolving this case on the ground that it should have been a summary judgment motion would essentially defeat the entire purpose of the statute. [00:14:19] Speaker 07: If the motion is denied, then there's no inner relief, and it just becomes mooted. [00:14:25] Speaker 07: Now, on the mandatory point relative to the court, I think it's important to remember the 7701 and 7702 kind of relationship. [00:14:35] Speaker 07: So 7701 sets out a set of procedures for appealing as administrative matter on average employment action. [00:14:41] Speaker 07: And then 7702 says, if it's a mixed case and the agency doesn't act within a certain number of days, there's re-enumerated timelines there, the employee is entitled to file civil action in the same manner as they could have filed under Title VII, the FSLA, the ADEA. [00:14:58] Speaker 07: If you look at the ADEA and FSLA, [00:15:01] Speaker 07: They both include mandatory forms of relief as well. [00:15:04] Speaker 07: And this court and other circuits have held that explicitly. [00:15:07] Speaker 07: If there was a finding that there was a violation of the FSLA, then the court must order certain back pay and other types of damages that are enumerated in the statute. [00:15:18] Speaker 07: The statutory text says that interim relief shall be granted. [00:15:22] Speaker 07: So it's framed in language of direction, not discretion. [00:15:27] Speaker 07: And it's also framed in the passive case. [00:15:29] Speaker 07: It doesn't say shall be granted by anyone in particular. [00:15:33] Speaker 07: And we think that leaves open the possibility that in this type of mixed case, where instead of being resolved in the administrative process, it's gone to the district court, it may be district court's responsibility to enforce what the statute requires. [00:15:48] Speaker 04: Make sure my colleagues don't have additional questions at this time, and we'll give you a little bit of time for rebuttal. [00:15:52] Speaker 04: Thank you. [00:15:54] Speaker 04: Ms. [00:15:55] Speaker 04: Lyons, we'll hear from you now. [00:16:09] Speaker 02: Hear me now. [00:16:13] Speaker 02: Good morning. [00:16:14] Speaker 02: I am Jane Lyons from the U.S. [00:16:16] Speaker 02: Attorney's Office on behalf of the chair of the FDIC. [00:16:21] Speaker 05: You might want to lower that just a little bit more. [00:16:23] Speaker 05: It might come through a little better. [00:16:26] Speaker 02: Am I actually that short? [00:16:28] Speaker 02: I am. [00:16:29] Speaker 02: I am that short. [00:16:31] Speaker 02: I think understanding how we got here and where we are [00:16:36] Speaker 02: shows the way forward for this court. [00:16:39] Speaker 02: In August of 2022, when the district court denied the preliminary injunction request interim relief, Miller had been on indefinite and conditional suspension from his job for two years because it sparked concerns in January 2020 about whether he posed a potential threat to the safety of himself or agency personnel, and he had not found a way to assuage those concerns. [00:17:04] Speaker 02: Miller had prevailed in part in an initial decision rendered by an administrative judge at the Merit Systems Protection Board who found preliminarily the FDIC should have ended Miller's suspension in April of 2021. [00:17:17] Speaker 02: The administrative judge did not address internally despite an agent from board regulation requiring her to do so. [00:17:29] Speaker 02: The FDIC filed a petition for review of the interim decision and asked the [00:17:34] Speaker 02: full board to review that interim initial decision. [00:17:38] Speaker 02: The agency had a reasonable belief at that time that it didn't owe Miller any interim relief because it was unclear in the silence of the statute and the silence of the regulations what it meant if the initial decision did not address interim relief. [00:17:54] Speaker 02: On May 16, 2023, well after the district court ruled, the Merit Systems Protection Board issued a final order which affirmed [00:18:04] Speaker 02: that the indefinite suspension was properly imposed and it reversed the finding that the suspension should have been lifted in April of 2021. [00:18:13] Speaker 02: This deprived Miller of his status as a prevailing party at all in those administrative proceedings. [00:18:19] Speaker 02: But under a newly announced interpretation of the statute on the same day in a case called Stewart versus the Department of Transportation, the board [00:18:29] Speaker 02: also found that its own administrative judge's error in not addressing interim relief in the initial decision rendered Miller eligible for interim relief by operation of the statute. [00:18:41] Speaker 05: Right, and then at that point, it's clear that Mr. Miller's entitled to interim relief too, and the FDIC says so, and then a payment is made. [00:18:52] Speaker 05: And can you just tell me, is the government taking the position [00:18:57] Speaker 05: that the appeal is moot. [00:18:58] Speaker 05: Because your brief, which was before the payment was made, your brief says something like almost moot or largely moot or mostly moot, and then it says almost everything or virtually everything's decided. [00:19:11] Speaker 05: Of course, if it's only virtually, then it's not moot. [00:19:14] Speaker 05: And the only potentially material thing that's happened since, as far as I know, is that there was a direct deposit. [00:19:20] Speaker 05: I assume it was a direct deposit that was made. [00:19:24] Speaker 05: Mr. Miller, I think has indicated to us that he's trying to figure out whether the amounts are right. [00:19:30] Speaker 05: And so we don't know yet that there's actually an agreement and there may well not be on the amounts. [00:19:35] Speaker 05: Given that, is the government taking the position that the appeal is moved? [00:19:39] Speaker 02: Yes, the government is taking the position that the appeal is moved. [00:19:41] Speaker 02: But let me explain a couple of more things that are relative in the factual scenario that you currently laid out. [00:19:48] Speaker 02: There's more to it. [00:19:50] Speaker 02: In the final decision, the board anticipated [00:19:55] Speaker 02: the possibility that there would be a disagreement with the parties about the math. [00:19:59] Speaker 02: And as I stand here this morning, in honor of my most current information from the agency, is that it is still working with the Thrip Savings Plan and its 401K provider, zero price, to calculate the correct amounts of breakage and other things for contributions to Mr. Miller's retirement. [00:20:18] Speaker 02: That is an ongoing process, as far as I understand it. [00:20:22] Speaker 02: There are third parties [00:20:24] Speaker 02: Mr. Miller, as I understand it, has initiated a new MSPB appeal, and those issues are being dealt with in a separate administrative proceeding, and there is still another administrative proceeding ongoing before the Merit Systems Protection Board about the status of the suspension after April of 2021. [00:20:49] Speaker 02: That is all still ongoing. [00:20:51] Speaker 02: There's a hearing scheduled in the [00:20:54] Speaker 02: case about the ongoing suspension. [00:20:57] Speaker 02: There's a hearing scheduled for October 25th. [00:21:00] Speaker 03: This is an appeal from the May 16th ruling? [00:21:04] Speaker 02: There is no, this case? [00:21:06] Speaker 03: No, no, the other actions. [00:21:12] Speaker 02: No, I would not say that is correct. [00:21:15] Speaker 02: I would say that the final order on May 16th is something that could be the subject of a supplemental complaint. [00:21:24] Speaker 02: in the district court. [00:21:25] Speaker 03: He filed a motion to amend within 30 days. [00:21:30] Speaker 03: Is that this separate action? [00:21:32] Speaker 02: That could concern a separate claim. [00:21:37] Speaker 02: I think the question for the district court is going to be, in its case management prerogative, when to start reviewing the MSPB's final orders. [00:21:48] Speaker 02: Because the court is well aware, the district court may only review the final orders. [00:21:53] Speaker 02: Our focus today is on the interim review. [00:21:56] Speaker 03: Isn't there an argument that it's not a final order because it was referred to the regional office? [00:22:05] Speaker 02: With due respect, Judge Randolph, I don't think so. [00:22:08] Speaker 02: I think it is a final order on what was before it at the time. [00:22:12] Speaker 02: It's important to understand what the Merit Systems Protection Board decided was that its administrative judge had made yet another error. [00:22:20] Speaker 02: by considering things the parties had not briefed and put before it. [00:22:25] Speaker 02: There had been a procedural error about who was on fair notice of what would be considered in those proceedings. [00:22:32] Speaker 02: I think the proceedings are closed, but there are ongoing proceedings over the disputes regarding the suspension. [00:22:39] Speaker 02: And if I could say a word about the nature of that claim, which is what underlies this request for interim relief, [00:22:46] Speaker 02: The nature of that claim is one of mandamus. [00:22:49] Speaker 02: If you're going to construe a complaint as broadly as you can, as your questions were suggesting, Chief Judge, that nature of that claim is really one for mandamus because the statute doesn't say who or when or what or who's gonna resolve disagreements about it. [00:23:10] Speaker 02: So it is in the nature of I have a right and I've come into court to enforce it. [00:23:15] Speaker 02: through a preliminary injunction on what is essentially a mandamus request. [00:23:19] Speaker 02: It's extraordinary relief on extraordinary relief, is part of my point there. [00:23:25] Speaker 03: The preliminary injunction apart from the back pay is basically saying, this is what I get from it anyway, saying that the error was in indefinitely suspending me. [00:23:41] Speaker 03: And I'm going to get that overturned. [00:23:42] Speaker 03: And in the interim, what I'd like to do is have my computer back or whatever. [00:23:47] Speaker 02: I think part of what I was hearing developing a little bit in the argument before I got up with my friend on the other side was a notion that there's a difference between the pay and interim relief and the forms of other relief that he sought besides money, non-monetary relief, like his access to the computer system, his laptop. [00:24:09] Speaker 02: being free of any more requests for medical information. [00:24:13] Speaker 02: Those are all forms of the interim relief that he sought and was all predicated on the interim relief statute. [00:24:20] Speaker 02: The interim relief statute, let's be honest, what it is is it's a form of temporary relief similar to restoring the employment if- Okay, I missed that point. [00:24:30] Speaker 03: And so you're saying that all the, other than that pay, [00:24:35] Speaker 03: that the other things that he's seeking were based on the interim relief statute. [00:24:40] Speaker 03: Yes, Your Honor. [00:24:41] Speaker 03: Not on general principles of preliminary injunction. [00:24:45] Speaker 02: No. [00:24:45] Speaker 02: The way he presented the argument to the district court was that it was all incumbent as part of the interim relief. [00:24:52] Speaker 02: And I don't really have any criticism of that approach by him, to be honest. [00:24:58] Speaker 02: The interim relief statute goes beyond the payment of just money. [00:25:03] Speaker 02: And it encompasses a sort of a [00:25:06] Speaker 02: a restoration of the employment relationship to a degree for the time during the MSPB's proceedings. [00:25:13] Speaker 02: But there are exceptions. [00:25:15] Speaker 02: It's not an absolute right. [00:25:17] Speaker 02: And because there are exceptions... Is this a disruption? [00:25:21] Speaker 02: Disruption to the workplace is one of them. [00:25:22] Speaker 02: And obviously, the FDIC never got a chance to invoke that or litigate that before the board because its administrative judge didn't do the job quite right. [00:25:37] Speaker 02: Clear as mud. [00:25:39] Speaker 02: It's clear as mud. [00:25:41] Speaker 02: Every mixed case I've ever been before the court on felt much that way. [00:25:44] Speaker 02: This one is particularly a bit of an interesting one to me because the agency has paid the money because it is here this morning to vindicate the importance of safety in the workplace instead of money. [00:25:57] Speaker 03: It raises another question that hasn't been addressed [00:26:00] Speaker 03: That is, as I understand it, you can, if you don't get a ruling in how many days? [00:26:05] Speaker 03: 120, I believe. [00:26:06] Speaker 03: 120, you can go to the EEOC, or you can go to the Court of Appeals, or you can go to the district court, depending on all that. [00:26:14] Speaker 03: But then what happened, the question that's raised is what happens if on the 120th first day, the agency comes out with a ruling? [00:26:26] Speaker 03: Well, because it's a review of administrative action. [00:26:31] Speaker 02: Right. [00:26:32] Speaker 02: So what happens in a mixed case that comes into the district court, timely under that statute, but a little bit untimely because the board hasn't finished its work. [00:26:43] Speaker 02: Typically, the district court faces having to have, for lack of a better term, sort of bifurcated proceedings. [00:26:51] Speaker 02: It can go ahead on the de novo claims and do what it would normally do. [00:26:56] Speaker 02: And then it has to wait for the final board decision so that it can have an administrative record and ultimately review those decisions under the Administrative Procedure Act. [00:27:05] Speaker 02: But until there is a final court decision, that part of the case isn't ready for review. [00:27:12] Speaker 02: What is, to me, sort of odd about all that is that you're in court, and there are just two different things going on. [00:27:21] Speaker 02: And this case is not just a mixed case. [00:27:23] Speaker 02: Mr. Miller also had an individual right of appeal action that the MSPB rejected. [00:27:29] Speaker 02: That's the whistleblower thing that could go to the federal circuit. [00:27:31] Speaker 02: It may have, for all I know. [00:27:35] Speaker 02: It's particularly confusing here. [00:27:37] Speaker 02: But the agency has complied with the statute and removed the basis for any kind of even claim for irreparable harm. [00:27:46] Speaker 02: And our position is very much so that the statute does not displace the traditional test that is to be applied in injunctive proceedings. [00:27:56] Speaker 06: Council, can you address again why the monetary relief request is fully moot now instead of largely moot [00:28:05] Speaker 06: In particular, what you just suggested certainly seems relevant to me, that the fact that a payment has been made might be relevant to how we think about irreparable harm. [00:28:18] Speaker 06: But where he's saying this payment is not sufficient, so a lot of details to be worked out. [00:28:25] Speaker 06: How does that actually render the case moot when we could issue an order [00:28:29] Speaker 06: that you're actually required to pay a full amount and have that overseen by a court? [00:28:36] Speaker 02: The answer to that, Your Honor, is in Beberman versus Blinken, which instructed that not only this court but the district court as well, courts shouldn't issue orders to pay interim relief because the basis of the claim is an Administrative Procedure Act type of review and instructing the Merit Systems Protection Board perhaps or the agency [00:29:00] Speaker 02: to reconsider would be the absolute outer limit of the authority. [00:29:04] Speaker 02: Here, there's no need to exercise that authority because there are already ongoing administrative proceedings to address these issues, and then they will be subject to judicial review once those are final. [00:29:17] Speaker 05: That's not a merits disposition? [00:29:19] Speaker 05: The case that you cited? [00:29:20] Speaker 02: I'm sorry, Your Honor. [00:29:24] Speaker 05: The case that you cited, if it stands for the proposition, [00:29:29] Speaker 05: that it's wrong to enter an order requiring the transfer of money in this context, that the range of remedies is something limited, more constrained than that. [00:29:41] Speaker 05: That results in mootness, or that results in the claim for interim relief failing on the merits? [00:29:49] Speaker 02: I'd like to say both. [00:29:52] Speaker 02: So Beberman versus Blinken is a case interpreting a very similar interim relief statute [00:29:59] Speaker 02: for the Foreign Service Grievance Board. [00:30:02] Speaker 02: So similar system of personnel review, similar statute. [00:30:06] Speaker 02: And the court was asked to provide interim relief. [00:30:10] Speaker 02: And the court held that interim relief was inappropriate. [00:30:15] Speaker 02: As part of that, it addressed the nature of the claim and the nature of the judicial review of that. [00:30:21] Speaker 02: But getting to your question on [00:30:24] Speaker 02: sort of whether any lingering dispute over the dollars and cents renders the case moot. [00:30:31] Speaker 02: The case is moot because the agency has taken substantial steps of complying with statute, and there's no question that it will continue to do so. [00:30:42] Speaker 05: And we think- Does it matter that the agency tendered a payment at all? [00:30:47] Speaker 05: Suppose the payment hadn't happened yet. [00:30:49] Speaker 05: Would you be in the same position because there's still a dispute as to the payment amount? [00:30:53] Speaker 02: We would be in a weaker position, perhaps, if the agency had not yet made a substantial payment. [00:31:01] Speaker 05: Suppose the agency pays half and says half is coming. [00:31:04] Speaker 05: The second half is coming. [00:31:06] Speaker 05: Is that the same situation we're in now? [00:31:09] Speaker 02: Because courts ordinarily presume that agencies will follow the law and they will act in accordance with their announced intentions to follow through, that that would be a situation where the court should find moot. [00:31:22] Speaker 05: And that would be true even before they paid anything because the FDIC had already represented that payment was going to be made. [00:31:29] Speaker 02: I think that's probably true. [00:31:31] Speaker 02: I think we were a little weaker in our brief than we probably should be. [00:31:34] Speaker 02: Looking back when I prepared for argument, I wish we had been clearer and stronger on the moot [00:31:42] Speaker 04: My colleagues don't have additional questions for you, Ms. [00:31:44] Speaker 04: Lyons. [00:31:46] Speaker 04: Thank you, Ms. [00:31:47] Speaker 04: Lyons. [00:31:49] Speaker 04: Mr. Tisa will give you three minutes for rebuttal. [00:31:53] Speaker 07: Thank you, Your Honor. [00:31:54] Speaker 07: Well, hopefully we can clear up some of the mud on the mootness issue. [00:32:00] Speaker 07: And then, Judge Garcia, I have a response to some of the questions you asked earlier about [00:32:04] Speaker 07: Yeah, I motion itself. [00:32:06] Speaker 07: So on on mootness here, this case just it just isn't. [00:32:09] Speaker 07: If you look at the way that the jurisdiction works here, once the agency doesn't render a decision within the statutory time frame and the employee decides to file a civil case, that court has jurisdiction. [00:32:20] Speaker 07: It's not required to wait for any administrative proceedings to continue. [00:32:24] Speaker 07: essentially the administrative proceedings become irrelevant. [00:32:27] Speaker 07: Jurisdiction vested in the district court, it can review the claims de novo and proceed as it would under any of the statutes that are cross-related to this. [00:32:36] Speaker 07: In terms of the mootness of the requests here, Judge Garcia, if you look at A291-292, the mootness of the preliminary injunction requests, if you look at A291-292, [00:32:54] Speaker 07: The requested relief here isn't bound to the scope of statutory interim relief. [00:33:01] Speaker 07: So we respectfully disagree with my friend on the other side on that point. [00:33:06] Speaker 07: Mr. Miller requested interim relief starting on the date of the AJ's decision, but if you look at the motion, it doesn't expire upon the completion of a final decision. [00:33:18] Speaker 03: Do you have your brief, your topside brief before you? [00:33:24] Speaker 03: Yes, Your Honor. [00:33:25] Speaker 03: Could you turn to page 48? [00:33:26] Speaker 03: I'm looking at the second full paragraph there. [00:33:36] Speaker 03: And the way I read that is that the agency can comply with the ALJ's order either by reinstating Miller or by restoring Miller's paying benefits without duties because of undue disruption. [00:33:52] Speaker 03: That choice [00:33:54] Speaker 03: the agency's choice is effectively unrevealable. [00:33:59] Speaker 03: Miller has no inherent claim to government property not offered as a payment. [00:34:02] Speaker 03: Now, the way I read that is if he gets his back pay, that's in compliance, that's fine, but these other things he's asking for, the agency can deny, that's unrevealable, end of story. [00:34:17] Speaker 03: Have you changed your view on that? [00:34:19] Speaker 07: No, Your Honor. [00:34:21] Speaker 07: In terms of mootness, the case is live if there's any potential for relief. [00:34:25] Speaker 07: This court and the Supreme Court have made that clear case after case. [00:34:29] Speaker 07: If there's even a dollar of disputed value or any potential for remedy, the case is live for constitutional mootness purposes. [00:34:37] Speaker 07: What we said- It's high but unrevealable. [00:34:40] Speaker 07: Well, effectively unrevealable in the sense that there is not an ordinary kind of arbitrary and capricious standard that would apply to the agency's decision of whether to [00:34:50] Speaker 07: return the employee to duty, or simply provide. [00:34:52] Speaker 07: What is the standard? [00:34:54] Speaker 07: So from what we understand, and if you look at the statute, there's two options for compliance. [00:35:00] Speaker 07: The agency can pay the employee and return the employee to work, or simply pay the employee and then not return the employee to work by making that undue disruption determination. [00:35:09] Speaker 07: So that determination is something the Federal Circuit has said the agency has, I think the phrasing they used was effectively unreviewable discretion to make. [00:35:18] Speaker 07: The employee is whole either way. [00:35:20] Speaker 07: The employee is getting the paying benefits. [00:35:22] Speaker 07: So whether the agency wants the benefits of the employee's labor is up to the agency. [00:35:26] Speaker 07: Here, the FDIC has done neither. [00:35:28] Speaker 07: They haven't returned Mr. Miller to work, and they also haven't restored his paying benefits during this statutory period that they showed him. [00:35:38] Speaker 07: So if there's no further questions, we think the most straightforward way to resolve this case would be to reverse the district court's order and remand for a calculation of what's still owed [00:35:47] Speaker 07: statutory interim relief requirement. [00:35:50] Speaker 05: Thank you. [00:35:50] Speaker 05: Thank you counsel. [00:35:51] Speaker 05: Thank you to both counsel. [00:35:52] Speaker 05: Mr. Tisa, you were appointed by the court to assist the court in this matter and we thank you for your assistance.