[00:00:40] Speaker 00: All right, the next case before the court is Barnes versus Merit Systems Protection Board. [00:00:45] Speaker 00: Mr. Schwartz, you want to reserve five minutes for rebuttal? [00:00:50] Speaker 03: That's correct, Judge Bailey. [00:00:51] Speaker 00: Okay, the case is case number 153018. [00:00:54] Speaker 00: You may begin. [00:00:58] Speaker 03: Good morning, honors, may it please the court. [00:01:00] Speaker 03: I'm Frederick Schwartz on behalf of Mr. Barnes and I think myself as well. [00:01:06] Speaker 03: I believe that [00:01:08] Speaker 03: Herring is just positive, and that the concerns raised by Judge Rayna and his dissent are not present in this case. [00:01:15] Speaker 03: But before I discuss Herring, let me, and he's here to tell me I'm wrong. [00:01:21] Speaker 02: OK, sir. [00:01:22] Speaker 02: Mr. Short, actually, I got something else to address. [00:01:26] Speaker 02: And looking at your brief, for example, on page four, you state that the facts [00:01:36] Speaker 02: You state foregoing facts are not specifically relevant, but they're useful to the court. [00:01:43] Speaker 02: Then you go on and you misspell the name of your client. [00:01:47] Speaker 02: You misspell Pentagon. [00:01:52] Speaker 02: There's other topographical errors in that paragraph. [00:01:57] Speaker 02: And I find your brief replete with this type of lack of attention to correct grammar [00:02:06] Speaker 02: and respect for the English language. [00:02:09] Speaker 02: I would highly suggest that you proofread your briefs carefully before submitting them. [00:02:16] Speaker 02: Because when you have the type of errors that are in the brief and the high number of them, it really distracts from your argument. [00:02:26] Speaker 02: And I say that to you just so that you know going forward that it would be a really good idea [00:02:34] Speaker 02: review your material carefully. [00:02:37] Speaker 03: Well, I certainly would agree. [00:02:38] Speaker 03: And I did submit a corrected brief to the court, as you may know, which corrected what I thought were the topographical errors. [00:02:48] Speaker 03: But if you recall, this was done very quickly. [00:02:54] Speaker 03: And I apologize to the court for the topographical errors, because I pride myself on having as few as conceivable. [00:03:04] Speaker 01: This is your corrected brief. [00:03:06] Speaker 03: I'm sorry? [00:03:06] Speaker 01: This is your corrected brief. [00:03:08] Speaker 03: Then I apologize to the court. [00:03:10] Speaker 03: That's fine. [00:03:11] Speaker 03: Let me go forward. [00:03:13] Speaker 03: I stand chastised in an area where I thought I was OK. [00:03:19] Speaker 03: But in any event, under the Civil Service Reform Act, the Congress, [00:03:35] Speaker 03: determined that the board would be its handmaiden to carry out its statutory and constitutional obligation to provide due process to the employees. [00:03:48] Speaker 03: And they did it for two reasons. [00:03:49] Speaker 03: Not only the constitution, but the expense of having trained an employee. [00:03:54] Speaker 03: And the time limit of filing a petition with the board is not jurisdictional. [00:04:01] Speaker 03: It permits the board to [00:04:03] Speaker 03: to in fact review and make exceptions at its discretion. [00:04:08] Speaker 03: So there's no question about the discretion. [00:04:10] Speaker 00: And that raises a problem for you, doesn't it? [00:04:14] Speaker 00: In other words, we have to find that it was an abuse of discretion. [00:04:17] Speaker 00: We can't simply say that if we've been sitting here in the first instance, we'd find a day or two delay excusable. [00:04:25] Speaker 00: We have to say that the board abused its discretion in reaching its conclusion. [00:04:31] Speaker 00: Isn't that right? [00:04:32] Speaker 03: Well, that's correct. [00:04:33] Speaker 03: But abusive discretion is a very broad term. [00:04:36] Speaker 03: If you look at wall and it's, it's, it's citation from Alonzo, uh, you'll see that, uh, in fact, you are to use, uh, uh, a much broader determination in terms of, uh, abusive discretion. [00:04:54] Speaker 03: Also, if you look at your sentry case, which is not a board case, [00:04:59] Speaker 03: which was set in a brief at 554, 5th, 3rd, 1029, I hope without topographical error. [00:05:05] Speaker 03: A party may establish an abusive discretion by showing that the court made a clear error of judgment in weighing the relevant factors or exercising its discretion based on an error of law or clearly erroneous fact finding. [00:05:20] Speaker 03: So it seems to me that abusive discretion is a term which [00:05:27] Speaker 03: is broad enough to encompass the determination made by the board. [00:05:33] Speaker 03: And for example, they determined that it was three days late without addressing the issue of whether two of those three days were due to the board's email system, which was down, for example. [00:05:46] Speaker 03: So in fact, it was one day and not three days. [00:05:50] Speaker 03: And there are other issues. [00:05:52] Speaker 00: Even if we accept the proposition that it's one day, because I think you've got a pretty good argument on that since the ECF was down, though arguably you could have faxed it in or done something else to get it there. [00:06:03] Speaker 00: But even if we accept it as one day, the board did acknowledge that it was a short timeframe, but they weighed other factors that they thought outweighed this short timeframe. [00:06:15] Speaker 03: Well, they did. [00:06:17] Speaker 03: But for example, they said that I should have been familiar with the rule. [00:06:22] Speaker 03: Uh, pay based on my past practice. [00:06:24] Speaker 03: I, I in fact was familiar with the requirement, the regulatory requirement, but I was not familiar with the fact that the word count has nothing to do with the page count. [00:06:36] Speaker 03: And then that is a critical element in the, in the way that a lawyer works. [00:06:44] Speaker 00: How many pages is 7,500 words? [00:06:48] Speaker 03: Uh, I did it in. [00:06:50] Speaker 03: 26 pages, I believe. [00:06:52] Speaker 03: Well, that's not that far off of 30, is it? [00:06:55] Speaker 03: Well, the problem is this, Your Honor. [00:06:58] Speaker 03: When I do a Douglas case, I list the criteria, single spaced, and I list the agency determination with that criteria, single spaced, and then I address Fiera. [00:07:11] Speaker 03: Because I believe that the fact finder or the determining body has to have before it, just as a reminder what the requirement is, [00:07:19] Speaker 03: and what the agency did. [00:07:23] Speaker 03: That added a lot of lens, apparently. [00:07:26] Speaker 03: So I just took them all out. [00:07:28] Speaker 03: And then I had to come up with language which encompassed both of those particular problems. [00:07:35] Speaker 03: The other thing I did is I took out a lot of citations. [00:07:39] Speaker 03: And I hate string citations probably as much as you do. [00:07:43] Speaker 03: And I didn't have that many. [00:07:44] Speaker 02: But as I point out. [00:07:46] Speaker 02: What word processing program are you using? [00:07:49] Speaker 02: Word perfect. [00:07:50] Speaker 02: And that doesn't give you a word count? [00:07:53] Speaker 03: It does give you a word count. [00:07:55] Speaker 03: But the process of getting a word count is you have to block out that part of the brief, which is subject to a word count. [00:08:05] Speaker 03: And then you have to paste it on another page. [00:08:07] Speaker 03: And then you have to get a word count. [00:08:09] Speaker 03: And it's not a very efficient way of working. [00:08:12] Speaker 03: The efficient way of working [00:08:15] Speaker 03: particularly when you're limited because of the non-availability of the record. [00:08:21] Speaker 03: The efficient way is just to look at the pages. [00:08:23] Speaker 03: For example, in this court, I can look at the number of pages and determine whether or not I'm close to the word count, or in this case, would be the page count. [00:08:34] Speaker 03: And that was the practice that I followed. [00:08:37] Speaker 03: It seems to me that my obligation is to create a brief, [00:08:45] Speaker 03: without typographical errors, and I hope that was only the first page that they were, but in any event, created a brief which is helpful to the court because for the efficiency of the court, the best tool for doing that are the briefs of the parties and the way the briefs structure the arguments and the cases which are cited in support of either argument. [00:09:08] Speaker 03: And Mr. Carney's brief was an excellent brief and in my briefing, I think, [00:09:13] Speaker 03: was a good brief in that regard. [00:09:16] Speaker 03: And that is why what you try to do is you try to come up with the best brief within the time constraints. [00:09:24] Speaker 03: And so rather than pause at the end of every page and determine how many words I had and then how many words I had left, I always use, except now before the board, I always use the page count. [00:09:40] Speaker 03: And that is a perfectly reasonable tool to use. [00:09:43] Speaker 03: And then if it turns out I'm wrong, and as Mr. Carney pointed out, I suppose I could have submitted a brief or a petition which had more words than necessary. [00:09:56] Speaker 03: And then the board, as Mr. Carney pointed out, the clerk would send it back to me and then I'd correct it then. [00:10:03] Speaker 03: And that would be apparently appropriate in terms of board procedure. [00:10:08] Speaker 03: But what I think is my responsibility is to submit a responsive brief. [00:10:13] Speaker 00: Why didn't you just file a motion on Friday saying motion for extension of time for two days in order to remove words from the brief or from the petition? [00:10:30] Speaker 00: We've all practiced law. [00:10:33] Speaker 00: What you do is you watch for your deadline and if you think you're not going to make it, you see if you can't get an extension. [00:10:39] Speaker 03: Well, [00:10:40] Speaker 03: Because I guess there are two answers to that question because I've asked myself that a number of times. [00:10:48] Speaker 03: The answer to that is that I believe that I could in fact comply. [00:10:55] Speaker 03: And the second answer to that is I believe that this court, that court would do what this court would do. [00:11:01] Speaker 03: That because of the shortness of time, and it was a very short time when I finally [00:11:09] Speaker 03: got it completed, that it would be considered de minimis. [00:11:13] Speaker 03: And therefore, the most efficient way of doing it for the court would be to submit a proper brief or proper petition a little bit late. [00:11:26] Speaker 03: And that is apparently not what the board does, even though the board is supposed to. [00:11:37] Speaker 03: considering those criteria in Alonzo and say if there's a reasonable reason for failing to do it promptly, then you look at the time and you look at the other factors and you determine the most efficient way or rather you determine whether there is good cause. [00:11:59] Speaker 03: But I knew that if there was good cause, [00:12:02] Speaker 03: that, in fact, that would be the best way of doing it. [00:12:05] Speaker 03: And I believe there was good cause. [00:12:08] Speaker 03: I agree with you, Judge O'Malley. [00:12:10] Speaker 03: In those circumstances, again, that is what I do. [00:12:15] Speaker 03: I just stop and submit a motion. [00:12:19] Speaker 03: And although the motion would be denied because, well, first of all, the motion, not for any, I'm sorry, [00:12:29] Speaker 03: The motion, if I wanted more words, would be denied. [00:12:31] Speaker 03: The motion to extend the time, I should have done that. [00:12:35] Speaker 03: But that, at least in my view, was not as efficient a way of doing it as presenting, because of the dilemma I found myself in, a full brief to the board when they opened up their doors on Monday morning using the e-filing system, which I was required to adopt because it's much more efficient. [00:12:59] Speaker 03: allows service on the agency too. [00:13:03] Speaker 03: So it is, in my view, a very small error that results in good cause. [00:13:11] Speaker 03: And that is, in fact, what Herring said. [00:13:14] Speaker 03: You look at the duration of time, and the duration of time was really quite small. [00:13:21] Speaker 03: And Herring also is a decision that came after the board made its decision. [00:13:28] Speaker 03: You look at the duration. [00:13:29] Speaker 03: Uh, you look at, uh, whether it was deletory, whether I was trying to stall. [00:13:37] Speaker 03: And in fact, by hand delivering it when their system didn't work on Monday too, I did everything I could to be non-deletory. [00:13:47] Speaker 03: It's not repeated neglect. [00:13:48] Speaker 03: Everything else had been filed on time. [00:13:50] Speaker 00: You want to save the rest of your time for revival. [00:13:52] Speaker 00: You're into it. [00:13:53] Speaker 00: Okay. [00:13:53] Speaker 00: Let's we'll give you what you have left. [00:14:01] Speaker 04: May it please the court? [00:14:02] Speaker 04: I'd like to discuss hearing for just a moment, which I could address in my brief. [00:14:08] Speaker 00: Would you have made a different decision after hearing? [00:14:10] Speaker 04: I don't believe hearing would have required the board to do anything different. [00:14:13] Speaker 04: There is no evidence of any monitoring by the petitioner in this case. [00:14:17] Speaker 04: And then there were also other factors, failure to follow the board's regulations that support the board's decision. [00:14:25] Speaker 00: OK, was there something else you wanted to say about hearing? [00:14:27] Speaker 04: No, Your Honor. [00:14:29] Speaker 00: Well, this is pretty harsh, don't you think? [00:14:31] Speaker 00: It's really, I mean, you call it three days, but your system was down. [00:14:34] Speaker 00: If lawyers at our court try to file an ECF and the system's down, we generally give them that as if it's a weekend. [00:14:45] Speaker 04: Well, Your Honor, the board did consider that its e-appeal system was down. [00:14:49] Speaker 04: It noted those facts and considered them as part of the totality of the circumstances. [00:14:54] Speaker 00: But it still called it three days instead of one. [00:14:56] Speaker 04: Yes. [00:14:57] Speaker 04: As I noted in my brief, there were other options. [00:15:00] Speaker 04: The petitioner did not attempt to use e-appeal until after his brief was already due. [00:15:06] Speaker 04: So there's really almost kind of two phases of the untimeliness. [00:15:09] Speaker 04: There's the Friday failure to file because the brief at the 11th hour was discovered to be too long. [00:15:15] Speaker 04: And then on Saturday, once the brief was put together in the proper format, there were two attempts to e-file and then that was that. [00:15:27] Speaker 04: Faxing it would have taken a few months delivering it to a commercial delivery service. [00:15:31] Speaker 04: Then it would have still been a day late. [00:15:32] Speaker 04: It would have been. [00:15:34] Speaker 04: But it would have given the commissioner the opportunity to cut that off at one day. [00:15:38] Speaker 02: It was within his control to do that. [00:15:40] Speaker 02: Would the result have been different? [00:15:43] Speaker 04: Well, one day is less than three. [00:15:44] Speaker 04: And the length of the delay is certainly one of the factors that the board has to consider. [00:15:49] Speaker 04: Having said that. [00:15:50] Speaker 02: But you're requiring electronic filing. [00:15:53] Speaker 02: And that's just as supposed to facilitate filing. [00:15:57] Speaker 02: It's supposed to improve the processes and yet your system is down and you still count those as days. [00:16:06] Speaker 02: Shouldn't you subtract those two days and it's back to one? [00:16:08] Speaker 04: Your honor, I think if the petitioner had no other option but to use e-appeal, he's not required to use e-appeal. [00:16:15] Speaker 04: He can fax, hand-deliver, mail, email. [00:16:20] Speaker 04: I'm sorry, I don't believe he can email. [00:16:22] Speaker 04: But he has those other three options and I think the board said [00:16:26] Speaker 04: You're late and due diligence is not just trying that, but trying some, not just trying EOPL. [00:16:33] Speaker 02: When he shows up Monday morning and personally goes down there and follows a brief in order to make sure that I think your system was still down on Monday, right? [00:16:42] Speaker 02: Yes, it was. [00:16:44] Speaker 02: So he goes down and follows this by hand. [00:16:47] Speaker 02: I mean, it's, I see signs of diligence here. [00:16:52] Speaker 04: Well, [00:16:54] Speaker 04: Certainly there were signs of diligence. [00:16:56] Speaker 04: The attempts to e-file were signs of diligence, but I think the board looked at it and said, well, but he stopped. [00:17:03] Speaker 04: He was already late and he had these other options within a few minutes that brief could have been faxed to the board or it could have been delivered to a delivery service to preserve that Saturday filing date. [00:17:16] Speaker 04: And that the petitioner did not. [00:17:17] Speaker 00: Did the weekend count? [00:17:19] Speaker 04: Yes. [00:17:20] Speaker 04: Yes, Your Honor. [00:17:25] Speaker 04: Your original question was, would it have mattered? [00:17:29] Speaker 04: And I originally said, you know, one day is clearly less than three days, but there's still no good cause for the failure to file on Friday in the board's view. [00:17:41] Speaker 04: So that even if it's one day, you still have to have good cause and there is no good cause for the failure to file. [00:17:46] Speaker 00: But isn't excusable neglect good cause? [00:17:51] Speaker 04: Well, it's excusable neglect if it's [00:17:54] Speaker 04: neglect that a reasonable person would fall victim to. [00:17:58] Speaker 00: And I think in this case- Well, I mean, he says, you say 30 pages or 7,500 words, whichever less. [00:18:05] Speaker 00: But his point, he thought that 30 pages and 7,500 words would likely correspond or at least close to correspond. [00:18:14] Speaker 00: I mean, it is a pretty big gap if you're talking about a five page differential. [00:18:19] Speaker 00: Why even have 30 pages? [00:18:20] Speaker 00: Why not say 25 pages? [00:18:22] Speaker 04: Well, your honor, I think the board has to accommodate more than just attorneys who type their briefs. [00:18:26] Speaker 04: We receive a large number of handwritten briefs. [00:18:29] Speaker 04: So 30 pages would allow someone to do a handwritten brief that might only be a thousand words. [00:18:35] Speaker 04: So, or I'm sorry, two or 3000 words, but less than the allowable limit. [00:18:41] Speaker 04: So, you know, and the words, whichever is less, signal, don't just do one. [00:18:48] Speaker 04: Make sure that both comply. [00:18:49] Speaker 04: and that was included in the initial decision. [00:18:52] Speaker 04: It's included in the board's regulations. [00:18:54] Speaker 04: I think council made an unfortunate assumption that if he was under 30, he'd be fine. [00:18:59] Speaker 04: Well, it's not what the ID said and that's not what the board's regulations. [00:19:03] Speaker 00: But do you agree that had he submitted this brief on Friday with too many words, that it would have just been a matter of course that they would have sent it back and say resubmit and he would have been fine? [00:19:14] Speaker 04: That is the purpose of the [00:19:16] Speaker 04: Board's regulation that it put in in 2012. [00:19:18] Speaker 04: The clerk has the option to reject a non-compliant brief. [00:19:24] Speaker 04: So if it had looked at the brief and did a word count and said, this is way too long. [00:19:28] Speaker 04: Right. [00:19:28] Speaker 00: But then they would have let him resubmit. [00:19:29] Speaker 04: They could have rejected it and said, you have two days to resubmit. [00:19:34] Speaker 00: Right. [00:19:34] Speaker 00: So he would have had the time to fix his word count. [00:19:37] Speaker 04: If he had filed on Friday, Your Honor. [00:19:39] Speaker 00: Yes. [00:19:40] Speaker 00: So don't you think this is all a lot of spinning for no really good reason? [00:19:46] Speaker 00: You admit that if he had, if he had done the non-compliant brief on Friday, he would have had until Monday to do a compliant brief and you get a compliant brief on Monday. [00:19:56] Speaker 00: Why isn't that good enough? [00:19:58] Speaker 04: Well, your honor, I think if the board has regulations and council and parties are required to be familiar with that. [00:20:08] Speaker 04: And if council had read the regulations, perhaps he would have taken [00:20:12] Speaker 04: the steps that you outlined earlier. [00:20:13] Speaker 02: But he did read the regulations, and that's where he saw he had a dilemma. [00:20:17] Speaker 02: And in addition to the circumstances that Doug O'Malley was pointing out, there's the other circumstance that your electronic system is down, does not allow for electronic filing. [00:20:29] Speaker 02: And you say that had he filed on Saturday, it could have made a difference. [00:20:33] Speaker 02: It had only been one day instead of three. [00:20:36] Speaker 04: That is correct. [00:20:38] Speaker 04: The length of time is a factor, and one is shorter than three. [00:20:42] Speaker 04: But I go back to my original point. [00:20:44] Speaker 04: There's still no good cause for his failure to file on Friday. [00:20:48] Speaker 04: That made his brief untimely. [00:20:51] Speaker 04: Absent good cause. [00:20:52] Speaker 00: But the board does allow excusable neglect by counsel to serve as good cause in other cases. [00:21:00] Speaker 00: So in other words, some lawyers who mess up get a break, and some lawyers who mess up don't. [00:21:07] Speaker 04: Well, Your Honor, when there are other factors present, for instance, in Roe and in Herring, where there was evidence that a petitioner had monitored the progress of the case, and that the attorney's negligence was essentially beyond the petitioner. [00:21:26] Speaker 02: Had Mr. Barnes monitored? [00:21:28] Speaker 02: Are you saying that had Mr. Barnes known about all this and monitored what happened on Friday night, that we'd have a different case? [00:21:35] Speaker 04: Well, I'm not sure that monitoring [00:21:38] Speaker 04: Proclaiming the duty to monitor requires that the petitioner be looking over the attorney's shoulder on Friday afternoon and evening. [00:21:45] Speaker 04: But that didn't happen in Herring either. [00:21:49] Speaker 04: There was evidence a week before the due date that Herring called the attorney. [00:21:54] Speaker 04: There's also evidence that Herring had some impairments that limited his ability or her ability to monitor. [00:22:00] Speaker 04: But there was evidence of monitoring. [00:22:03] Speaker 04: Here there's none. [00:22:04] Speaker 00: We are charging Mr. Barnes with [00:22:07] Speaker 00: essentially a one-day mistake made by his counsel. [00:22:14] Speaker 04: You know, I respectfully disagree. [00:22:15] Speaker 04: I think there was a three-day delay as the board correctly said. [00:22:19] Speaker 00: Well, one day either way. [00:22:20] Speaker 00: I mean, if he had done it on Friday non-compliant, he would have been fine, right? [00:22:25] Speaker 00: And then you make the counsel actually sign up for ECF, and you're telling him he shouldn't have used ECF. [00:22:32] Speaker 00: He should have, even though you were down. [00:22:35] Speaker 04: there was evidence in the record, he was informed that the e-appeal system was not functioning. [00:22:41] Speaker 04: So then he had a choice and to stop and try again on Monday, which is what he did, or go to the fax machine, go to Kinko's and fax it to the board to preserve that one day late. [00:23:01] Speaker 04: The court has no additional questions. [00:23:15] Speaker 03: Cast your alternative means, Your Honor. [00:23:18] Speaker 03: Hearing quotes from Anderson, the Department of Justice, and Alonzo particularly, which says, the appellant may not show an utter impossibility, but only that the delay was excusable in light of the particular facts and intending circumstances. [00:23:34] Speaker 03: I would agree that there were alternative means that I could have used. [00:23:38] Speaker 03: But in fact, the means that I used was the one that was most efficient in terms of the board. [00:23:45] Speaker 03: Perhaps I could have faxed it to the board, but I certainly, if I mailed it, it would have to be, it would arrive later. [00:23:57] Speaker 03: The most efficient way of dealing with the board is to use the e-filing system, which I attempted to use. [00:24:03] Speaker 03: And even if it had only worked on Monday, my assumption was even if it was down for the weekend, and I cried it all weekend long, certainly when people got in on Monday, then they'd fix it. [00:24:15] Speaker 03: the board's chosen means because you served the other party and you also serve or you end the need to scan. [00:24:25] Speaker 03: So that's the most efficient means. [00:24:27] Speaker 03: And when that didn't work, clearly the most efficient means was to walk down or take the subway down there and file it by hand. [00:24:34] Speaker 03: And that's exactly what I did. [00:24:36] Speaker 03: So those were all the most reasonable choices if you consider [00:24:41] Speaker 03: The purpose is to get it in the board system as rapidly as possible. [00:24:48] Speaker 03: And I was aware of the rule. [00:24:53] Speaker 03: The issue isn't whether or not I was aware of the rule or kept abreast of the regulation. [00:24:57] Speaker 03: The issue is this. [00:24:58] Speaker 03: The issue is whether I had some reason to believe that somehow the page count had a relationship to the number of words. [00:25:07] Speaker 03: And I did see it said, whichever is less. [00:25:11] Speaker 03: which meant that I had to go through a process in order to make that determination, which is exactly what I did. [00:25:17] Speaker 03: But I did not contemplate that the word count would be significantly over the permissible page count. [00:25:26] Speaker 03: Thank you very much, Your Honors. [00:25:28] Speaker 00: All right, the case will be submitted.