[00:00:45] Speaker 01:
The next case for argument is 14-3101, Archuleta versus Miller.

[00:01:14] Speaker 01:
All right, we'll settle Mr. Blaze.

[00:01:30] Speaker 03:
I can't please the court.

[00:01:32] Speaker 05:
Let me ask you, page 14 of the guidance brief, you say, to be clear, we do not challenge the board's right to abandon the burden-shifting approach to considering evidence outlined in Kettering.

[00:01:47] Speaker 05:
I read that with a small degree of surprise.

[00:01:51] Speaker 05:
In the Fray case, specifically 359 Fed 1360, we said, referring to Ketterer, we endorsed the board's approach in these cases as set forth above and adopted as the law of the circuit.

[00:02:09] Speaker 05:
That says to me that the Ketterer burden shifting approach is the law.

[00:02:15] Speaker 05:
And the board is not in a position to overrule us.

[00:02:19] Speaker 05:
The only way that

[00:02:21] Speaker 05:
the Ketterer rule can be changed now is by either this court taking Fray in the bank or by the Supreme Court overruling this.

[00:02:35] Speaker 05:
So I was a little surprised that the government comes into this case with one hand tied behind its back.

[00:02:42] Speaker 05:
Why does the government concede that the board can overrule Fray?

[00:02:51] Speaker 03:
What we were trying to express was that the necessity of presenting evidence would remain the same, but that it wasn't necessarily the mechanical process.

[00:03:05] Speaker 05:
We said a two-step process.

[00:03:07] Speaker 05:
I remember the case.

[00:03:08] Speaker 05:
Yes, sir.

[00:03:10] Speaker 05:
We said, okay, the board's got it right.

[00:03:12] Speaker 05:
This is a good approach.

[00:03:13] Speaker 05:
We adopt it as the law of the circuit.

[00:03:16] Speaker 05:
OK?

[00:03:17] Speaker 05:
And the board can't change that.

[00:03:19] Speaker 05:
Only this court in bank or the Supreme Court said it.

[00:03:22] Speaker 05:
Do you see what we're saying?

[00:03:24] Speaker 03:
Yes, sir.

[00:03:25] Speaker 03:
And perhaps more fundamentally for the purposes of our appeal, the point was that was not what we were appealing.

[00:03:33] Speaker 03:
Maybe we could have.

[00:03:35] Speaker 05:
So you agree that the board was wrong here.

[00:03:39] Speaker 05:
Leaving aside, we'll get to the merits.

[00:03:41] Speaker 05:
You agree the board was wrong here to jettison the burden shifting approach.

[00:03:47] Speaker 03:
Yes, I believe Frye actually controls.

[00:03:52] Speaker 05:
So you sort of back off a little bit from that statement in the brief.

[00:03:57] Speaker 05:
So to the extent that, as I said, what we're trying to make clear was that was not the... But it's an important part of the case because it's a very different case when you look at it through the burden shifting approach that was in Ketterer and Frye and followed by this court in Weiser.

[00:04:15] Speaker 05:
Very different case.

[00:04:16] Speaker 05:
because of what the A.J.

[00:04:18] Speaker 05:
found in terms of findings of fact and credibility.

[00:04:22] Speaker 05:
It's a very different case when you go through the burden shifting approach than when you look at it the way the board did putting all these general factors together.

[00:04:31] Speaker 05:
So in other words, you agree that the board erred here in backing off or trying to change fry.

[00:04:39] Speaker 03:
Yes, but specifically that wasn't the point we appealed and I'm sure we'll discuss further.

[00:04:44] Speaker 05:
But it's a critical point.

[00:04:45] Speaker 05:
So you say the board was wrong on that.

[00:04:47] Speaker 03:
Yes.

[00:04:48] Speaker 03:
Okay.

[00:04:49] Speaker 03:
And before I start the actual substance in my image, a quick house cleaning matter I'd like to point out on page two of our brief, our opening brief, we cited to JA96 and quoted some language from that position description.

[00:05:08] Speaker 03:
I realized in preparing for the argument that that's actually a position description from the Fish and Wildlife Service, which happens to be in the record.

[00:05:15] Speaker 03:
It's not the actual position description that we're dealing with here.

[00:05:19] Speaker 03:
That position description is at JA 166.

[00:05:23] Speaker 03:
I'm not sure it will affect the argument, but I did want to note that error in our brief.

[00:05:34] Speaker 03:
The decision of the Merit Systems Protection Board should be reversed.

[00:05:38] Speaker 03:
because it settles civil service law on its head and undermines personnel management throughout the entire government.

[00:05:50] Speaker 06:
How many people were considered for that liaison job?

[00:05:59] Speaker 03:
specifically just miss no uh... what do you mean other than specifically well i think there's nothing in the record that talks further than that but there's also no indication that as as they were working on uh... creating this new position they didn't consider all of the people in the region to in order to

[00:06:22] Speaker 03:
think about it.

[00:06:24] Speaker 06:
Wasn't it indicative that the person who drafted the position was instructed to change it, to change the GS position?

[00:06:34] Speaker 03:
I don't believe so, Your Honor, because when the position was created, the creation of the position was in response to policy directors from the secretary.

[00:06:46] Speaker 03:
And in creating the position, a determination was made that it should be graded as a GS-13,

[00:06:52] Speaker 03:
There's no indication that I've found that the reason it should be graded as a GS-13 was because they wanted Miss Miller.

[00:07:00] Speaker 06:
All indications are is that as management considered... The analysis, as I recall from the record, was this isn't a GS-13 position.

[00:07:12] Speaker 03:
Creating position descriptions is an iterative process.

[00:07:18] Speaker 03:
And if management decides it wants to create a position at the GS13 level, and the people who actually have to write up the position description are having trouble justifying, then they'll go back to management and say, OK, I need some more responsibilities, or I need some more something so that if you want it to be a 13, you need to give me more.

[00:07:40] Speaker 06:
So the more that was given, Ms.

[00:07:44] Speaker 06:
Miller didn't meet those qualifications, did she?

[00:07:47] Speaker 03:
Yes she did.

[00:07:48] Speaker 06:
She had a doctorate?

[00:07:48] Speaker 06:
What was it?

[00:07:49] Speaker 06:
Advanced degree?

[00:07:50] Speaker 06:
What did the records call for?

[00:07:53] Speaker 03:
I don't recall that she needed a doctorate.

[00:07:59] Speaker 06:
She needed qualifications she didn't have.

[00:08:02] Speaker 06:
If you want to argue with me on that, I'll find a specific.

[00:08:13] Speaker 01:
You go ahead and I'll find it for you.

[00:08:16] Speaker 01:
Let me ask you a more global question, which is what is the government's view as to how the board erred here?

[00:08:22] Speaker 03:
The board erred in two fundamental ways.

[00:08:26] Speaker 03:
One, it conflated its consideration of the reassignment itself, which is a non-appealable action not subject to board review for the efficiency of the service or

[00:08:42] Speaker 03:
Well, I don't know.

[00:08:43] Speaker 01:
Is that the government's view?

[00:08:44] Speaker 01:
I mean, there's several alternatives going on here.

[00:08:47] Speaker 01:
I mean, as I read it, and you can tell me if I'm reading it wrong, they first said this wasn't necessary.

[00:08:54] Speaker 01:
And then in reconsideration, they seem to have backed away from the necessary standard and moved towards using the words legitimate or bona fide.

[00:09:03] Speaker 01:
Is it your view that that's the correct standard?

[00:09:06] Speaker 01:
At least you may quibble over how they applied it.

[00:09:08] Speaker 01:
But is there a standard that the agency does have to establish that it was a bona fide or legitimate reassignment?

[00:09:16] Speaker 03:
Yes.

[00:09:17] Speaker 03:
As a general proposition, any management directive, geographical relocation, whatever, any management directive should be, at least on its face, lawful.

[00:09:27] Speaker 01:
And your view is that the board gets to review that?

[00:09:31] Speaker 03:
No.

[00:09:32] Speaker 03:
Well, it gets to decide, it gets to at least examine whether it was lawful and in the case of a reassignment, whether it was made in good faith for legitimate management reasons.

[00:09:42] Speaker 01:
So your dispute with the board here is that notwithstanding that they said that they were using the standard the second time around, that indeed if you examine the facts and the criteria they used, they went beyond that, right?

[00:09:56] Speaker 03:
Yes, ma'am.

[00:09:57] Speaker 01:
How does that part of it, the efficiency of the service, move into what you think the correct criteria is?

[00:10:02] Speaker 01:
I think in Fray, we did use the term the efficiency of the service in connection with legitimacy.

[00:10:09] Speaker 03:
The court did.

[00:10:10] Speaker 03:
And I will say that in a variety of board decisions and decisions from this court, there's language to the effect of sometimes it just says a bona fide, legitimate managerial discretion exercise and just stops.

[00:10:26] Speaker 03:
Sometimes it says to promote the efficiency of the service, in the interest of the service, for the good of the service, and indeed in the record here when the managers, Mr. Knox and Ms.

[00:10:40] Speaker 03:
Massacre, talk about their management decision to reassign.

[00:10:44] Speaker 03:
They talk about that they believe this reassignment would be good for the service, that it would promote the mission of

[00:10:53] Speaker 03:
of the agency in Alaska, which is of course a fundamental managerial responsibility, is to use your personnel, their talent, skills and experience where you think... So what do you want us to do?

[00:11:06] Speaker 01:
I mean, we view for substantial evidence.

[00:11:08] Speaker 01:
So even though the board, at least in reconsideration,

[00:11:12] Speaker 01:
applies in name at least the standard that you're saying is the correct standard, then what are we to do to say that even though they applied the correct standard, if we review the facts ourselves, we conclude that there was not sufficient evidence?

[00:11:30] Speaker 03:
What do you want us to do?

[00:11:31] Speaker 03:
You touched on it before.

[00:11:32] Speaker 03:
They state the standard.

[00:11:35] Speaker 03:
They misapply the standard.

[00:11:38] Speaker 03:
The only adverse action that's before the board

[00:11:42] Speaker 03:
for review for efficiency of the service is the removal.

[00:11:47] Speaker 03:
There's long standing case law.

[00:11:49] Speaker 03:
Fry was mentioned.

[00:11:50] Speaker 03:
There's others at both the board and this court that recognizes that when an employee refuses to follow management directive.

[00:11:59] Speaker 01:
No, no, no.

[00:11:59] Speaker 01:
But even you're not coming here saying that that's the extent of their review and they can't look at the underlying action at all.

[00:12:06] Speaker 03:
But if they look at the underlying action only to determine

[00:12:10] Speaker 03:
whether it was made in good faith for legitimate management reasons.

[00:12:15] Speaker 03:
They do not look at it for the wisdom of it, whether they got it right or wrong.

[00:12:21] Speaker 06:
So let me apologize to you, Mr. Blades.

[00:12:24] Speaker 06:
I put doctor on my mind because what the requirement was as they expanded the position was that

[00:12:34] Speaker 06:
the person had to have carried out groundbreaking work in this area.

[00:12:40] Speaker 06:
Shorten that to a doctor.

[00:12:44] Speaker 06:
But she did.

[00:12:47] Speaker 06:
Ms.

[00:12:48] Speaker 06:
Miller, your expert witness, Stuart, testified that Ms.

[00:12:54] Speaker 03:
Miller had never carried out any such groundbreaking work.

[00:13:02] Speaker 03:
To dovetail with Judge Pro's question, I really don't.

[00:13:08] Speaker 06:
It does dovetail, because I think it's free pretext.

[00:13:10] Speaker 03:
Right.

[00:13:10] Speaker 03:
And although the board's decision is not supported by substantial evidence, what we think is fundamentally wrong is the board's application of the standard.

[00:13:27] Speaker 03:
But as to the evidence, the administrative judge considered all of the evidence

[00:13:32] Speaker 03:
made credibility determinations and determined, among other things, that Ms.

[00:13:37] Speaker 03:
Miller was qualified for the position.

[00:13:41] Speaker 03:
She heard the administrative judge.

[00:13:43] Speaker 03:
She heard the testimony of the experts.

[00:13:47] Speaker 03:
She heard the testimony of everyone else.

[00:13:49] Speaker 03:
Ms.

[00:13:50] Speaker 03:
Miller, at the time that the position was first presented, apparently considered herself qualified for the position.

[00:13:56] Speaker 06:
She offered to do it long distance.

[00:13:58] Speaker 03:
She offered to do a long distance.

[00:14:00] Speaker 03:
She even tried to see if she could get it upgraded to a GS-14.

[00:14:10] Speaker 03:
And to the extent that's a factual question, whether she was qualified, that was resolved by the administrative judge.

[00:14:17] Speaker 03:
And the board itself, with regard to that and the other factual findings of the administrative judge, did not make any contrary findings or explain any contrary findings.

[00:14:29] Speaker 03:
and back to Judge Prost's question, the board essentially didn't do any analysis based on what the facts in the record were.

[00:14:39] Speaker 03:
They went through the process of stating the standards and then just reaching the conclusion that the reassignment was not bona fide for legitimate management reasons, where the record is full of evidence as to the good faith of

[00:14:59] Speaker 03:
of the managers and the reasons for why they were making the reassignment.

[00:15:04] Speaker 03:
The board otherwise acknowledges that the agency had a good reason for creating the position in Anchorage and for believing that Ms.

[00:15:13] Speaker 03:
Miller was well suited to accept the position.

[00:15:17] Speaker 03:
But nevertheless, the board simply concludes

[00:15:20] Speaker 03:
as I say, without any real analysis just citing the standards and then says that because essentially they think it wasn't a good idea to ask Ms.

[00:15:30] Speaker 03:
Miller to take the position and that once she refused, the agency then had to fill two vacant positions, that it couldn't have been bona fide or for legitimate management reasons.

[00:15:42] Speaker 01:
Why don't we say that we've used the rebuttal while we store a couple minutes and we'll get to the other side.

[00:15:47] Speaker 03:
Thank you.

[00:15:58] Speaker 04:
Good morning and may it please the court.

[00:16:02] Speaker 04:
The board simply... The board doesn't have to follow Frye, right?

[00:16:06] Speaker 04:
The board does have to follow Frye.

[00:16:09] Speaker 04:
And Frye says at the bottom of page 1357, where a removal action is based on a refusal to accept a directed geographical reassignment.

[00:16:19] Speaker 04:
The agency must prove by the ponders of the evidence that its reassignment decision was bona fide and based upon legitimate management considerations in the interest of the service.

[00:16:28] Speaker 05:
So here's the board's simple... You're representing the board, Mr. Gojja, right?

[00:16:35] Speaker 05:
That's correct.

[00:16:36] Speaker 05:
But what about we said in 1360, Mr. Gojja, we quoted, we discussed terror at length, and we said we endorsed the board's approach in these cases as set forth above and adopted as the law of the circuit.

[00:16:51] Speaker 05:
And that means we specifically said, I remember the case,

[00:16:55] Speaker 05:
I remember it being argued to us, this is a good approach.

[00:16:59] Speaker 05:
So we looked at the case, we agreed, and we said we adopt that as the law of the circuit.

[00:17:06] Speaker 05:
Now once it's the law of the circuit, the board can't back off from it or change it.

[00:17:12] Speaker 05:
We can do that in bank, or the Supreme Court can do it to us.

[00:17:17] Speaker 05:
And the one thing I would disagree with, there's references

[00:17:20] Speaker 05:
in the board opinion, to us deferring to the board in Ketterer, in Fray.

[00:17:25] Speaker 05:
We didn't defer.

[00:17:27] Speaker 05:
We said, you've got a good approach here.

[00:17:28] Speaker 05:
It's now the law of the circuit, okay?

[00:17:30] Speaker 05:
So let's go back to the two-step approach.

[00:17:33] Speaker 05:
That's what controls here.

[00:17:34] Speaker 05:
The board can't change that, as Mr. Blades came around and agreed.

[00:17:41] Speaker 05:
You agree that the board can't overrule us?

[00:17:44] Speaker 04:
The board's view, and you're correct, it's at the bottom of the appendix, page 13,

[00:17:49] Speaker 04:
is citing tunic, that where an Asian interpretation is found to be reasonable, then another panel can actually... But who's the other panel here?

[00:18:01] Speaker 04:
The board?

[00:18:01] Speaker 04:
No, it would be this court is not found by the earlier.

[00:18:06] Speaker 04:
And to be clear, what we're talking about is the burden of production.

[00:18:10] Speaker 05:
But we said, we approved and adopt as the law of the circuit the burden of production approach that was stated in Ketterer.

[00:18:19] Speaker 05:
So that means it's the law now.

[00:18:21] Speaker 05:
So the board has to follow the two-step approach that we laid out in Fray when we followed Ketterer.

[00:18:31] Speaker 04:
Even if that was an error, I believe it would be a harmless error here because... How is it harmless when the board purports to overrule us?

[00:18:39] Speaker 04:
It seems like a pretty big thing.

[00:18:41] Speaker 04:
Right, even as Friday makes clear, and I read that section, the burden of proof always remains on the agency.

[00:18:48] Speaker 05:
Yeah, but you have to go through a two-step approach and it becomes a very different case when you do that here.

[00:18:53] Speaker 05:
Because the AJ found, number one, that Mr. Knox was credible.

[00:18:59] Speaker 05:
and that there was a legitimate reason for the removal, point one.

[00:19:03] Speaker 05:
Point two, he found that, or she found, I'm sorry, it was Judge Lunell Taylor, she found that Ms.

[00:19:13] Speaker 05:
Miller was qualified for the position and she found her not credible on certain points.

[00:19:21] Speaker 05:
And finally,

[00:19:22] Speaker 05:
she rejected the various affirmative defenses.

[00:19:25] Speaker 05:
Now the board, in the footnote of the first opinion, 15-513 opinion, doesn't change any of that.

[00:19:34] Speaker 05:
It doesn't disturb the finding that it was a legitimate management reason, and it doesn't disturb the finding that she was qualified, and it specifically says we agree with the A.J.

[00:19:44] Speaker 05:
on the affirmative defenses.

[00:19:45] Speaker 05:
So there, under the two-step Ketter approach, which controls

[00:19:50] Speaker 05:
We agree now.

[00:19:51] Speaker 05:
The government has made out a prima facie case, and it's the other side's burden to come in and show different things.

[00:20:02] Speaker 05:
And the board puts in these things about, you know, there wasn't a vacancy in the position.

[00:20:08] Speaker 05:
None of that's relevant.

[00:20:09] Speaker 04:
Even if Ketterer, the burden of production, was applied here, we'd end up with the same result.

[00:20:16] Speaker 05:
You can't get around the findings.

[00:20:19] Speaker 05:
There's no challenge here to the findings, the credibility determinations of the AJ.

[00:20:23] Speaker 05:
No one has said the AJ failed to follow the proper Hillen approach.

[00:20:28] Speaker 04:
The problem with the agency testimony isn't that it lacks credibility.

[00:20:32] Speaker 04:
It's that it's conclusory.

[00:20:33] Speaker 01:
Can I take you a step back looking at the evidence?

[00:20:38] Speaker 01:
I'm not clear on how things went down here.

[00:20:41] Speaker 01:
The board initially uses the standard of it wasn't necessary repeatedly in its opinion.

[00:20:51] Speaker 01:
And then it comes in for reconsideration.

[00:20:53] Speaker 01:
Does the board kind of get told and appreciate that necessary is the wrong standard, so we've got to change that and we've got to apply a legitimate standard?

[00:21:02] Speaker 01:
Is that a fair assessment of what went on here?

[00:21:05] Speaker 01:
Not in terms of burden of proof.

[00:21:06] Speaker 01:
I'm talking about whether you applied necessary, which the board repeatedly applied initially, or whether the standard is legitimate.

[00:21:12] Speaker 04:
So OPM came in at the board level, asked for reconsideration at the board level, and argued that necessary was the incorrect language.

[00:21:19] Speaker 04:
And the board basically agreed that the correct language is

[00:21:23] Speaker 04:
out of the statute.

[00:21:24] Speaker 01:
So the board agreed that its initial analysis was incorrect because it applied the wrong standard, the too high a standard of necessary versus legitimate, correct?

[00:21:33] Speaker 01:
Right.

[00:21:33] Speaker 01:
But it's the same result.

[00:21:35] Speaker 01:
Yeah, I know.

[00:21:36] Speaker 01:
And then they go back.

[00:21:37] Speaker 01:
And I'm not seeing, except for the words, it's just hard for me.

[00:21:43] Speaker 01:
They repeat a lot.

[00:21:44] Speaker 01:
And so in their reconsideration, they repeat a lot about what they said before about necessary, using necessary again.

[00:21:52] Speaker 01:
And then they cite a few cases, and they talk about burden shifting.

[00:21:58] Speaker 01:
And so where would you say is the chunk of the board's analysis as to why this was not a legitimate board action?

[00:22:08] Speaker 01:
Is it at page 11 where they start?

[00:22:13] Speaker 04:
Well, as the board says,

[00:22:15] Speaker 04:
I would point to both page seven in the reconsideration decision and probably in the first decision 30 to 31.

[00:22:26] Speaker 05:
where is that in the appendix?

[00:22:28] Speaker 04:
Appendix at page seven, sorry.

[00:22:31] Speaker 01:
Just so the record will be clear, this is December 6th, 2013.

[00:22:35] Speaker 01:
Exactly.

[00:22:36] Speaker 04:
In sum, the agency failed to present any evidence showing that its reasons for directing... I'm on page seven, but I'm not seeing where you're reading.

[00:22:43] Speaker 04:
It's the paragraph 11, it's Mark's paragraph 11.

[00:22:46] Speaker 04:
It begins and ends the discussion, however, stating that in sum, the agency failed to present any evidence showing that its reasons for directing

[00:22:53] Speaker 04:
the appellate geographic reassignment to Anchorage is bona fide and goes on from there and then says the emphasis in this case has always been on the agency's failure to show that its reasons for the reassignment were bona fide and then its action promoted the efficiency of the service.

[00:23:08] Speaker 04:
So the problem in this case isn't the witness testimony which was conclusively they just say she's the best person.

[00:23:15] Speaker 04:
The problem with this case is if you look at the actual position description, the position they're trying to put her in,

[00:23:22] Speaker 04:
and you look at the requirements.

[00:23:24] Speaker 04:
Okay, and then going back to fry or fray.

[00:23:27] Speaker 04:
where the court says this has to be a legitimate management reason.

[00:23:31] Speaker 04:
Well, the board can only sustain an agency action based on the reason provided by the agency.

[00:23:36] Speaker 04:
You can't come sustain it on some other reason, some alternative reason.

[00:23:40] Speaker 04:
It has to be the reason provided by the agency.

[00:23:42] Speaker 04:
But the A.J.

[00:23:42] Speaker 05:
found it was legitimate, that legitimate reasons had been established and the board did not say that that fact finding was wrong.

[00:23:52] Speaker 05:
So the reason that provided by the agency... But the board then comes in with all of these things about, you know, her position wasn't being eliminated, she had good performance reviews and all of this, and a whole bunch of things.

[00:24:10] Speaker 05:
And then said this was a veiled removal.

[00:24:15] Speaker 05:
This was a veil for removal action.

[00:24:18] Speaker 05:
There's no basis for that in terms of the findings that were found.

[00:24:23] Speaker 05:
It's contrary to what the AJ found and the board did not say we reject the AJ's findings.

[00:24:30] Speaker 05:
It just went off and brought in a whole lot of other things.

[00:24:33] Speaker 04:
The problem here is not the evidence, it's the absence of evidence.

[00:24:37] Speaker 04:
So the reason given by the Park Service for this reassignment was she's uniquely qualified for this position.

[00:24:43] Speaker 04:
She's the only person who meets all the requirements of the position

[00:24:46] Speaker 04:
And you look at the requirements on page 169 to 170 of the position description, requirements for this position, expert knowledge of federal laws and regulations, Alaskan Indian law at a mastery level, expert knowledge at a mastery level, cultural traditions and sacred beliefs of the tribes, extremely sensitive to... Do they have to prove that this was the only person in the whole government that was qualified for the position in order to effectuate a reassignment based on the payment reasons?

[00:25:11] Speaker 04:
They have to prove the reason they give.

[00:25:13] Speaker 04:
And the reason they gave was that she was the only one who met all the needs of the position.

[00:25:17] Speaker 04:
Now, if that was the reason they gave, that's what they have to prove.

[00:25:21] Speaker 01:
Just before your time runs out, something that would disturb me, and maybe I'm just missing something about what Kate would say that I'm not familiar with.

[00:25:28] Speaker 01:
It seemed to me that the board didn't rely exclusively, but relied heavily on the fact that this was a valuable and successful employee, and her leaving created two vagancies.

[00:25:38] Speaker 01:
Is that a fair statement?

[00:25:40] Speaker 01:
Are there other cases that rely on that?

[00:25:45] Speaker 01:
My concern with that is firstly it's a temporal thing because you don't know that in most cases.

[00:25:51] Speaker 01:
The government fired 15,000 air traffic controllers.

[00:25:54] Speaker 01:
It created an absolute mess in the flying skies of America.

[00:25:58] Speaker 01:
And I don't recall anybody ever using the factor, well, my god, we've created 15,000 vacancies by firing these people.

[00:26:06] Speaker 01:
I've just never seen it used.

[00:26:08] Speaker 01:
By definition, any time you fire someone, you could fire 10 people for misconduct, and you could be at a higher increase.

[00:26:14] Speaker 01:
So that's impossible to ever even fill those positions in the foreseeable future.

[00:26:18] Speaker 01:
Is the board going to use as a criteria?

[00:26:21] Speaker 01:
that it didn't promote the efficiency of the service because now you've got vacancies and you can't fill them?

[00:26:27] Speaker 04:
No.

[00:26:28] Speaker 04:
And to be clear, successful employees are reassigned all the time.

[00:26:32] Speaker 04:
And the most common, most typical type of reassignment is reorganization or restructuring or reduction in force by an agency to make itself more efficient.

[00:26:42] Speaker 01:
Sure.

[00:26:42] Speaker 01:
And if this woman had accepted the job, then there wouldn't be a vacancy.

[00:26:46] Speaker 01:
But because she refused to accept the job,

[00:26:50] Speaker 01:
the agency removed her, right?

[00:26:54] Speaker 01:
And the board doesn't deny that agencies are allowed to do that as long as the reassignment was for a legitimate reason, right?

[00:27:02] Speaker 01:
So in every case where somebody is reassigned doesn't want to take the reassignment and then leaves,

[00:27:07] Speaker 01:
Is there going to be a thumb on the scale that this is a factor that says it doesn't promote the efficiency of the service because we lost a good employee, a decent employee, and now we've got two vacancies?

[00:27:22] Speaker 04:
re-assignment as part of a reduction for restructuring.

[00:27:26] Speaker 01:
So to what extent the board repeatedly referred to this as a criteria.

[00:27:30] Speaker 01:
Am I wrong about that, that the board relied on this?

[00:27:32] Speaker 04:
What the board is trying to point out is how unusual this case actually is.

[00:27:35] Speaker 04:
You have someone singled out and at the hearing just praised for her about how wonderful she's doing as a park superintendent.

[00:27:45] Speaker 04:
And she's the only one here being reassigned.

[00:27:46] Speaker 04:
Even in Pride, there were, I think, four other people being reassigned.

[00:27:50] Speaker 04:
It wasn't just Fray being singled out for this.

[00:27:53] Speaker 04:
And she's doing really great in the position, and they want to put her in another position, but there's no evidence showing that she meets the qualifications or she's uniquely qualified to use the reason provided by the park service.

[00:28:06] Speaker 06:
Well, she's unqualified according to their own standards.

[00:28:09] Speaker 04:
It does great.

[00:28:10] Speaker 04:
She doesn't meet the requirements listed here.

[00:28:13] Speaker 04:
But in any event, the reason provided was she's uniquely qualified, which is something somewhere above minimally qualified.

[00:28:19] Speaker 04:
So it doesn't make sense, and it's hard to see how to promote the efficiencies of the service.

[00:28:24] Speaker 04:
Take someone who's doing so well in their current position, take them out of that, create a vacancy, put them in another position where we don't know how she'll perform based on the record, which doesn't show she's qualified.

[00:28:36] Speaker 04:
So that's what I think the board is trying to show in usually these cases.

[00:28:39] Speaker 04:
If you look at other cases, Frye is a good example.

[00:28:41] Speaker 04:
Frye was not performing well in his position.

[00:28:44] Speaker 04:
And so the organization that he was a part of was trying to make itself more efficient,

[00:28:49] Speaker 05:
The board, I think it was in the 513 decision, uses the term, this reassignment was a bail for a removal.

[00:29:00] Speaker 05:
Do you recall that?

[00:29:01] Speaker 05:
That's a very sinister characterization.

[00:29:05] Speaker 05:
This woman had a good record there.

[00:29:09] Speaker 05:
There's no indication of bad relations with Mr. Knox.

[00:29:13] Speaker 05:
As has been pointed out, she was successful.

[00:29:15] Speaker 05:
There's no indications of friction or tension.

[00:29:19] Speaker 05:
But why is this sinister, hostile implication brought in with no factual basis for it?

[00:29:26] Speaker 05:
She didn't even testify that she'd been harassed or anything.

[00:29:29] Speaker 04:
Well, there's circumstantial evidence that this was a veil to effect an adverse action, specifically the creative position at the GS13 level, her level,

[00:29:39] Speaker 04:
came back and the classifier said, this is 1512.

[00:29:42] Speaker 05:
But what's the evidence of any hostile, often in these cases, we'll see some kind of a background of hostility, tension.

[00:29:51] Speaker 05:
That's not in the record here.

[00:29:53] Speaker 05:
And yet the board puts this sinister term in there.

[00:29:57] Speaker 04:
I don't think it was meant to be sinister.

[00:29:58] Speaker 06:
Wasn't there some evidence of her speaking out of turn in some fashion?

[00:30:03] Speaker 04:
There's evidence in both the proposal notice and the removal decision that there were tensions between her and her staff or that there was poor morale.

[00:30:13] Speaker 04:
All of that's forgotten when this case comes to the hearing.

[00:30:16] Speaker 04:
Suddenly she's the best superintendent ever and you read it and I quote,

[00:30:20] Speaker 04:
big chunk of it in our brief.

[00:30:22] Speaker 06:
I'm going to have to go back to the record, but I recall that there appeared to be a reason for the creation of the physician, a pretextual reason.

[00:30:37] Speaker 06:
That is, that she did something that angered the people of an anchorage.

[00:30:42] Speaker 06:
What was it?

[00:30:44] Speaker 04:
Well, there was, and Mr. Passman might have more on this, but there was a

[00:30:48] Speaker 04:
management review that happened right before this position was created, the park service for whatever reason did not put that in the record.

[00:30:57] Speaker 04:
That could have been a legitimate reason if she did have performance problems, but that's not what they're saying.

[00:31:02] Speaker 04:
They're saying she doesn't have performance problems.

[00:31:04] Speaker 04:
She has a high level of performance in her current... She spoke out in some fashion.

[00:31:08] Speaker 06:
I'll let your co-counsel.

[00:31:10] Speaker 01:
Why don't we hear from Mr. Passman and we're going to shrink your time to a couple minutes, Mr. Passman, because we'll lay out.

[00:31:26] Speaker 02:
may have pleased the Court.

[00:31:29] Speaker 02:
OPM is really objecting to the Board's weighing of the evidence in regard to the reasons set forth by the agency for the directed assignment.

[00:31:39] Speaker 02:
Yet OPM is conceding that the Board must review the legitimacy of any supervisory order before sustaining discipline based upon the failure to obey the order.

[00:31:49] Speaker 02:
It is necessary for the Board to review.

[00:31:52] Speaker 02:
the rationale for the geographic reassignment here to determine whether the employer has shown that the reassignment had no solid or substantial basis in personnel policy.

[00:32:02] Speaker 01:
Can you just address very briefly, because you've got very little time, but Judge Searle's point about whether or not the board had the authority to overrule fray?

[00:32:10] Speaker 02:
Well, I think that was better handled by the board representative.

[00:32:15] Speaker 02:
I think still the bottom line is that the ANC has the burden of proof similar to an adverse action by preponderance of the evidence.

[00:32:23] Speaker 02:
They didn't show that here.

[00:32:24] Speaker 01:
What we really have here is a disguised adverse action.

[00:32:27] Speaker 01:
Well, except we've got an AJ opinion that credited, that had testimony, lots of testimony, that credited the testimony.

[00:32:35] Speaker 01:
And if you just take that as a given, and she had an opportunity to hear from the appellant as well, why isn't that sufficient to establish legitimacy?

[00:32:44] Speaker 02:
It isn't because, for example, in these types of situations when a new position is created, it's required that somebody from HR review the employee to determine whether she meets the minimum qualifications.

[00:32:58] Speaker 02:
That was never done here.

[00:32:59] Speaker 02:
There's no evidence in the record

[00:33:01] Speaker 01:
Were you representing this person at the hearing?

[00:33:05] Speaker 01:
Did any of that come out at the hearing?

[00:33:09] Speaker 01:
You had an opportunity to cross-examine these individuals?

[00:33:12] Speaker 02:
Well, we didn't because the agency never put on any HR witnesses.

[00:33:15] Speaker 02:
They only put on an individual who was from another agency who was not involved in the process of qualifying Ms.

[00:33:22] Speaker 02:
Miller.

[00:33:23] Speaker 02:
It only came out during discovery how the agency had engineered the position to be a GS-13, and it created it for reassignment.

[00:33:31] Speaker 02:
That's really unusual.

[00:33:32] Speaker 02:
When positions are created, they're created for recruitment.

[00:33:35] Speaker 02:
Then people apply.

[00:33:36] Speaker 02:
People can also apply for reassignment.

[00:33:38] Speaker 02:
But this position was specifically engineered for Ms.

[00:33:41] Speaker 02:
Miller.

[00:33:42] Speaker 02:
And when the classifier said the job wouldn't even barely classify as a 12, they raised the position then to a GS-13 by putting in all these very

[00:33:52] Speaker 02:
tough requirements that Miss Miller couldn't meet.

[00:33:55] Speaker 02:
She was an engineer and manager.

[00:33:58] Speaker 06:
Let me ask you this.

[00:34:00] Speaker 06:
As I was asking your co-counsel, I seem to recall that there was an event which triggered this creation of this position, and that it was something that, at least you argue, Miss Miller did, that irritated the folks up in Anchorage.

[00:34:20] Speaker 06:
What was that?

[00:34:21] Speaker 06:
I know I saw it in there.

[00:34:23] Speaker 02:
It was a management review, as counsel has pointed out, it's not part of the record, but it's referenced also in the meeting that Ms.

[00:34:29] Speaker 02:
Miller had when she learned about the reassignment, and it's also mentioned in the proposal and in the decision letter.

[00:34:39] Speaker 02:
And the management review basically claimed that Ms.

[00:34:40] Speaker 02:
Miller was having friction with staff at the park.

[00:34:45] Speaker 02:
And then she brought that up during that meeting on April 27th.

[00:34:48] Speaker 02:
But even there, she had no prior warning of any possible reassignment.

[00:34:52] Speaker 02:
Nobody had counseled her.

[00:34:53] Speaker 02:
All of a sudden, she brought his meeting.

[00:34:55] Speaker 05:
Excuse me, I don't want to interrupt, but one question that I had.

[00:34:59] Speaker 05:
There's reference in here.

[00:35:00] Speaker 05:
And what is exactly a mobility agreement?

[00:35:03] Speaker 05:
And how does it work?

[00:35:05] Speaker 05:
And what is the significance in this case?

[00:35:07] Speaker 05:
The briefs on both sides were written like we knew what that was.

[00:35:11] Speaker 05:
But I didn't see an explanation of what exactly is that.

[00:35:14] Speaker 02:
Mobility agreement is in positions that are required to move around the country to get different experience.

[00:35:21] Speaker 02:
Typically like SES positions have mobility agreements.

[00:35:25] Speaker 05:
Often law enforcement... The employee says, I agree to move to Kansas City or Denver if I'm sent there.

[00:35:33] Speaker 02:
They agree to move as required by the agency to enhance their training and experience.

[00:35:40] Speaker 02:
And there's no such example here.

[00:35:42] Speaker 02:
But Mr. Miller was brought in without any notice on April 27, 2010, and told, we're going to offer you a voluntary reassignment to Anchorage, which is a long distance away.

[00:35:54] Speaker 02:
She said, I need some time to think about it.

[00:35:56] Speaker 02:
They said, we'll give you two hours.

[00:35:58] Speaker 02:
Two hours later, they come back in the afternoon, and Ms.

[00:36:01] Speaker 02:
Miller tells them she's not likely to accept the reassignment.

[00:36:04] Speaker 02:
She doesn't want it.

[00:36:05] Speaker 02:
And all of a sudden, they give her a letter then saying, oh, you're directed to be reassigned to Anchorage.

[00:36:10] Speaker 02:
And if you don't accept it, you're going to be fired in 30 days.

[00:36:13] Speaker 02:
No indication about due process or anything.

[00:36:16] Speaker 02:
Now later the letter was withdrawn, but it shows the mindset that they had already planned to remove Ms.

[00:36:21] Speaker 02:
Miller, and this is more of a disguised adverse action.

[00:36:24] Speaker 02:
She was never well suited for the position.

[00:36:26] Speaker 02:
There's no evidence in the record nor the board ever find that she was well suited for the position.

[00:36:32] Speaker 02:
And the agency... But what about the AJ's findings?

[00:36:35] Speaker 02:
The A.J.'

[00:36:36] Speaker 02:
's findings were erroneous.

[00:36:37] Speaker 02:
She ignored all of the contrary documentary evidence.

[00:36:40] Speaker 02:
She didn't discuss any of the documentary evidence.

[00:36:42] Speaker 02:
But the board didn't disturb those findings.

[00:36:45] Speaker 02:
Well, the board found that Ms.

[00:36:46] Speaker 02:
Miller, they didn't go into any detail and they could have done a lot more, but they found that Ms.

[00:36:51] Speaker 02:
Miller had raised, submitted credible evidence to cast doubt on the agency's motivation

[00:36:59] Speaker 02:
in affecting her removal.

[00:37:01] Speaker 02:
And it's right in the board decision.

[00:37:02] Speaker 02:
Now they could have gone further and said what the credible evidence was, but it's the very evidence that we're discussing here today that she was not qualified for the position.

[00:37:11] Speaker 02:
Okay.

[00:37:13] Speaker 02:
Thank you.

[00:37:17] Speaker 01:
We've gone way over, so if you need extra time, we can give it to you.

[00:37:23] Speaker 01:
But I'm not sure how many more questions there are.

[00:37:25] Speaker 03:
Thank you, Your Honor.

[00:37:27] Speaker 03:
Quick point.

[00:37:28] Speaker 03:
As we were talking about before, as a matter of law, once the agency has established that they, in good faith, for legitimate reasons,

[00:37:41] Speaker 03:
had made the reassignment position.

[00:37:44] Speaker 01:
Yeah, but we were talking here about all this evidence in the record that apparently at least arguably points in the opposite direction.

[00:37:53] Speaker 03:
And the only fact finding that's been done has not been overturned by the board or explained that any contrary findings should be found and that's the findings of the administrative judge that

[00:38:05] Speaker 03:
the agency did have legitimate management reasons for making the reassignment.

[00:38:11] Speaker 03:
There's been much made of the idea that the agency was saying, well, she's uniquely qualified.

[00:38:18] Speaker 03:
As was mentioned, that didn't mean that she was the only person in the entire world who could do this.

[00:38:22] Speaker 03:
And perhaps it was hyperbole on the part of the manager.

[00:38:25] Speaker 03:
But what they were stating, and their testimony reveals this, is that among the people within the Alaska region,

[00:38:32] Speaker 03:
They believed that she was the person who could best do this job.

[00:38:37] Speaker 03:
Now, there's been mention about the management review.

[00:38:41] Speaker 03:
The management review was kind of a typical periodic management assessment that looked at all of the parts throughout the Alaska region and basically said, how are we doing?

[00:38:55] Speaker 03:
Where can we do better?

[00:38:57] Speaker 03:
And the review made some suggested improvements.

[00:39:01] Speaker 03:
The most you can take out of that is that Ms.

[00:39:05] Speaker 03:
Miller, just like everybody else, was not perfect.

[00:39:09] Speaker 03:
And Ms.

[00:39:10] Speaker 03:
Miller herself, and perhaps this is what Judge Wallach's been thinking of, Ms.

[00:39:13] Speaker 03:
Miller herself took some issue with the way the management review had been conducted.

[00:39:19] Speaker 03:
But in the decision sustaining her removal by Ms.

[00:39:26] Speaker 03:
Massacre,

[00:39:27] Speaker 03:
She mentions the management review.

[00:39:29] Speaker 03:
She makes reference to some of the findings.

[00:39:32] Speaker 03:
And as we mentioned, the review itself is not actually in the record.

[00:39:35] Speaker 03:
But she also says that the sole reason she was being removed was because she refused to accept the directed reassignment.

[00:39:44] Speaker 03:
And otherwise, there really is no evidence that the agency in advance of creating this position and deciding that Ms.

[00:39:54] Speaker 03:
Miller, among the current employees,

[00:39:56] Speaker 03:
would be best to fill it, had any other designs on taking any personnel action against Ms.

[00:40:02] Speaker 03:
Miller.

[00:40:03] Speaker 03:
They recognized that, as I mentioned, she might not have been perfect as a superintendent, but one of her obvious manifested skill sets was that she was good at developing relations, particularly with the local community and the tribes.

[00:40:17] Speaker 03:
And that's what this position was going to be all about, but it was going to be bigger than just at Sitka.

[00:40:23] Speaker 03:
It was going to be throughout the Alaska region.

[00:40:25] Speaker 03:
and was created as a result of policy directive from the secretary himself.

[00:40:30] Speaker 03:
And so there really is no evidence that it wasn't, in a good faith, legitimate reason to make the reassignment.

[00:40:37] Speaker 03:
There is no evidence that there was a pretext to make the reassignment.

[00:40:41] Speaker 03:
And the longstanding rule is that employees can be expected to follow management directive, including relocations.

[00:40:49] Speaker 03:
And if they don't, an appropriate penalty is removal.

[00:40:53] Speaker 03:
If I can have one last on the mobility agreement.

[00:40:56] Speaker 06:
Mobility agreements are... It's such an appropriate remedy that a letter was prepared in advance before she was even offered the position saying you're going to be removed if you don't give us a decision.

[00:41:14] Speaker 03:
The direct letter said, and I think this is fairly standard language, when management

[00:41:23] Speaker 03:
directs a reassignment, they will also inform the employee that a refusal to accept the direction of management will subject the employee to discipline up to and including removal.

[00:41:37] Speaker 03:
And that's part of giving the employee notice that this reason isn't really just asking.

[00:41:43] Speaker 06:
It's the norm to call some women and say, congratulations, you're being reassigned to a better job.

[00:41:48] Speaker 06:
And by the way, here's a letter saying you'll be fired if you don't accept this.

[00:41:54] Speaker 06:
That's an interesting approach to personnel management, I must say.

[00:41:59] Speaker 03:
Well, Your Honor, with all due respect, I appreciate the idea that management wants to ask first to see if somebody's willing to go voluntarily.

[00:42:09] Speaker 03:
But if they really need the person or want the person, believe that they have good reason, that this person will help the mission of the agency in this new assignment, management is prepared to direct the reassignment.

[00:42:21] Speaker 03:
They'll ask first, if they refuse,

[00:42:24] Speaker 03:
They'll direct the reassignment, which no one questions they have the ability to do.

[00:42:28] Speaker 03:
No one questions that employee does not.

[00:42:31] Speaker 06:
Of course they do.

[00:42:33] Speaker 06:
The question is, why did they prepare that letter in advance, which by the way they later withdrew?

[00:42:39] Speaker 03:
I'm sorry, which by the way what?

[00:42:40] Speaker 03:
They later withdrew.

[00:42:42] Speaker 03:
Oh.

[00:42:45] Speaker 03:
I can't tell you.

[00:42:46] Speaker 03:
It's not in the record.

[00:42:48] Speaker 03:
I would presume they

[00:42:51] Speaker 03:
Other aspects of the record indicate that they were trying to expeditiously fill this position.

[00:42:59] Speaker 03:
Perhaps they had been getting pressure from above that they'd already spent more than a year on it.

[00:43:03] Speaker 03:
They needed to get it filled.

[00:43:05] Speaker 03:
But honestly, I don't know.

[00:43:07] Speaker 03:
And I don't think there's anything in the record as to why, when the time came, they were moving so quickly.

[00:43:16] Speaker 03:
If I can address the mobility agreement as the last thing,

[00:43:19] Speaker 03:
Mobility agreement is a generic term for agreements, kind of self-explanatory, but I understand that completely, that will control the terms if someone is asked to move.

[00:43:35] Speaker 03:
And someone is, of course, agreeing in advance that they may be asked to move.

[00:43:40] Speaker 03:
But the absence of a mobility agreement in no way restricts the employer from instructing someone to move.

[00:43:48] Speaker 03:
It's just that there are not

[00:43:50] Speaker 03:
predetermined terms as to what the movement will be.

[00:43:54] Speaker 03:
So with that, Your Honor, we respectfully request that the court reverse the decision of the bill.

[00:43:59] Speaker 01:
Thank you.

[00:43:59] Speaker 01:
We thank all counsel on the cases submitted.

[00:44:01] Speaker 01:
That concludes our proceedings for this morning.

[00:44:16] Speaker ?:
All rise.

[00:44:16] Speaker 01:
The Honorable Court is adjourned to a quorum on yesterday.