[00:00:21] Speaker 04:
The next case for argument is 143083, Bernard v. agriculture.

[00:00:59] Speaker 04:
Whenever you're ready, Mr. Cunningham.

[00:01:03] Speaker 02:
Good morning, Your Honor.

[00:01:04] Speaker 02:
Court, please.

[00:01:06] Speaker 02:
I represent Mr. Bernard.

[00:01:07] Speaker 02:
And we'd like to discuss this morning the issues that we think the court erred in and the relief he's requesting, and then some of the major problems that we've encountered.

[00:01:19] Speaker 02:
Basically, we're claiming two errors on the part of the court below the board.

[00:01:23] Speaker 02:
Excuse me.

[00:01:24] Speaker 02:
One relates to the bad faith argument.

[00:01:27] Speaker 02:
It was dismissed by both the administrative judge and the board saying that the allegations that Mr. Bernard raised were mere, just mere allegations with no proof.

[00:01:40] Speaker 02:
And we think the board erred in that area, in the ruling.

[00:01:44] Speaker 02:
Then the second area is the issue of the discovery in the case below.

[00:01:49] Speaker 02:
The board held that Mr. Bernard had the right to discovery in an enforcement case.

[00:01:57] Speaker 02:
when the board's precedents for at least 1995 have been that

[00:02:02] Speaker 02:
you do not have the right for discovery or hearing in an enforcement case.

[00:02:06] Speaker 03:
Can you clarify what relief you're asking for?

[00:02:10] Speaker 03:
Excuse me, sir?

[00:02:11] Speaker 03:
Can you clarify what relief you're asking for from the board?

[00:02:15] Speaker 03:
Are there still missing credentials on the red card?

[00:02:20] Speaker 03:
No.

[00:02:20] Speaker 03:
Is there retrospective money from missed firefighting opportunities, or what?

[00:02:28] Speaker 02:
What the relief requested by Bernard is, first off,

[00:02:33] Speaker 02:
He did not claim money.

[00:02:35] Speaker 02:
He lost money on it and it was presented that he lost about $12,000.

[00:02:40] Speaker 02:
He was not claiming that.

[00:02:41] Speaker 02:
The relief we're requesting is a vacate the board order remand and a hearing and discovery related to

[00:02:51] Speaker 02:
the manner in which they treated him.

[00:02:53] Speaker 03:
I understand what you're asking us to do.

[00:02:55] Speaker 03:
The question that I'm trying to ask is what are you asking the board ultimately to do in this petition for enforcement?

[00:03:09] Speaker 02:
Basically the attorney fees he's lost in the process from the enforcement action, which is authorized.

[00:03:16] Speaker 03:
and basically that's going to be... Even if there's no relief in the petition itself?

[00:03:21] Speaker 03:
Attorneys fees for prosecuting a claim that results in no relief?

[00:03:26] Speaker 02:
Well, he had relief in the prosecution of the claim because once we filed it a superior did come in or return basically what happened and give him back his credentials.

[00:03:38] Speaker 02:
He did not get them all back.

[00:03:40] Speaker 02:
He has a retaliation claim in there.

[00:03:42] Speaker 02:
The relief in the retaliation claim would provide

[00:03:46] Speaker 02:
damages under that claim.

[00:03:49] Speaker 02:
So yes, you're looking at two cases here basically.

[00:03:53] Speaker 02:
And if you notice in the griefs and all, we've discussed retaliation and bad faith.

[00:03:59] Speaker 02:
And retaliation is the major claim because everything in this case, Your Honor, occurred

[00:04:06] Speaker 02:
six to eight months after the whole settlement process was over.

[00:04:10] Speaker 04:
But I don't understand, you're not seeking punitive damages.

[00:04:13] Speaker 04:
I mean, so what are the damages you're seeking for retaliation?

[00:04:17] Speaker 02:
You're a lot of compensatory damages in this, Your Honor.

[00:04:21] Speaker 04:
So what kind of damages?

[00:04:23] Speaker 02:
He's seeking damages based on... The typical thing of what they've done to him and what they've done to his reputation, the pain he's gone through throughout the entire process,

[00:04:35] Speaker 02:
This was a quite a traumatic thing because when it occurred, he was the only person that was singled out like this.

[00:04:44] Speaker 02:
And we're looking at someone taking his entire life's history and destroying it.

[00:04:52] Speaker 02:
And no one has been accountable.

[00:04:54] Speaker 03:
And he thinks that he really feels that he was wrong and that he has... I know that this may seem kind of technical.

[00:05:02] Speaker 03:
damages other than back pay from the board?

[00:05:08] Speaker 02:
Yes, the board is authorized to give compensatory damages if there's a retaliation claim.

[00:05:12] Speaker 02:
Yes, sir.

[00:05:13] Speaker 03:
Okay.

[00:05:14] Speaker 03:
Do you happen to have a citation for that?

[00:05:16] Speaker 03:
If you don't, I can find it.

[00:05:18] Speaker 02:
I probably got it somewhere here.

[00:05:19] Speaker 01:
Mr. Cunningham, I understood your appeal to be principally on the ground that he didn't get what was promised to him.

[00:05:29] Speaker 01:
and then leave his job back, have the opportunity to have other positions, and you're saying in your brief that he didn't get the red card soon enough.

[00:05:44] Speaker 02:
What he did not get is, well, the red card is his job, number one.

[00:05:47] Speaker 02:
That's the easiest way to look at that.

[00:05:50] Speaker 01:
He did get it back, but it was a little delayed because the records were lost, right?

[00:05:55] Speaker 02:
Well, we claimed the records were destroyed.

[00:05:57] Speaker 02:
They weren't lost.

[00:05:58] Speaker 01:
But he did get a red card.

[00:06:01] Speaker 02:
He got a partial red card.

[00:06:02] Speaker 02:
He did not get it all back.

[00:06:05] Speaker 02:
And he was prohibited from performing his duties.

[00:06:09] Speaker 02:
When they denied the red card, they denied it based on four of his ratings out of 11.

[00:06:15] Speaker 02:
He still had a bunch of them, but they refused to let him participate, even though he had active ratings that they did not challenge.

[00:06:25] Speaker 02:
The letter of March 12th, April 12th.

[00:06:27] Speaker 04:
I don't see you arguing that, oppressing that argument in your blue brief, that sort of an interim period.

[00:06:32] Speaker 04:
You're saying for an interim period before they restored him, there was a time in which even though he was eligible for seven positions, they didn't give him the position?

[00:06:42] Speaker 04:
Yes.

[00:06:42] Speaker 04:
Is that what you're... He was eligible for them.

[00:06:43] Speaker 02:
He had them.

[00:06:44] Speaker 02:
He was qualified and they did not renew them.

[00:06:48] Speaker 02:
And he had all the qualifications for the renewal.

[00:06:51] Speaker 02:
They only held back four of the main, what they call his taskbook thing.

[00:06:56] Speaker 02:
They held back four of those.

[00:06:58] Speaker 02:
He still had others he'd qualify for.

[00:07:02] Speaker 04:
Can I add, going back to the retaliation point, I guess I'm not clear where that's coming from.

[00:07:07] Speaker 04:
This is a petition for enforcement of the settlement agreement, right?

[00:07:13] Speaker 04:
Yes.

[00:07:13] Speaker 04:
And the settlement agreement itself talks about good faith or whatever, full compliance.

[00:07:20] Speaker 04:
So you're pressing a claim beyond that?

[00:07:23] Speaker 02:
Yes, but it's Kuykendall, I believe, is the case.

[00:07:25] Speaker 02:
Kuykendall.

[00:07:26] Speaker 02:
And it allows separate damages for retaliation claims if they come up through as a result of the process in an enforcement case.

[00:07:39] Speaker 02:
In other words, it is a separate claim, but it's a proper claim before the board.

[00:07:42] Speaker 02:
I believe it's Kuykendall.

[00:07:45] Speaker 04:
So your argument with respect to retaliation is they were retaliating against him for having filed his initial claim?

[00:07:53] Speaker 04:
Yes.

[00:07:53] Speaker 04:
Is that what the retaliation was about?

[00:07:55] Speaker 02:
Right.

[00:07:55] Speaker 02:
The retaliation is, if you have a typical enforcement case, let me put it this way probably, it might help.

[00:08:01] Speaker 02:
A typical enforcement case doesn't involve discovery.

[00:08:05] Speaker 02:
The dates are set pretty much like.

[00:08:06] Speaker 02:
In other words, you settle agreement, you make a settlement agreement, and you agree to give the man back pay within 30 days.

[00:08:14] Speaker 02:
You restore him to his position within 45 days.

[00:08:18] Speaker 02:
And there's all these deadlines.

[00:08:20] Speaker 02:
And most of these cases come up when it's due to the workload or something on the board or the employer.

[00:08:25] Speaker 02:
They can't meet one of those deadlines and you have an enforcement case.

[00:08:29] Speaker 02:
All right, this is not the type of case that is.

[00:08:32] Speaker 02:
This is a case that everything was settled.

[00:08:35] Speaker 02:
Everything was taken care of.

[00:08:37] Speaker 02:
But eight months later,

[00:08:40] Speaker 02:
They started an action against him, separate of the settlement agreement, even though it had the best bad faith provision in it.

[00:08:50] Speaker 02:
Then they started retaliating against him by losing his file and not letting him go to work in his job.

[00:08:58] Speaker 02:
And that is a separate, distinct claim, Your Honor.

[00:09:02] Speaker 03:
I think I'm just pursuing the same subject.

[00:09:04] Speaker 03:
Let's assume that you were improperly denied discovery.

[00:09:10] Speaker 03:
Let's assume you go and get the discovery and have a deposition of Ms.

[00:09:18] Speaker 03:
Durham and maybe some others and let's assume that you prove that the actions that they took in 2012 were in bad faith and therefore in violation of the obligation to cooperate in an act of good faith under the settlement agreement.

[00:09:35] Speaker 03:
Now, what relief would you get, having achieved all of that?

[00:09:41] Speaker 02:
Under the board, you're allowed to get the attorney fees, and you're allowed to get compensatory damages, and any other damages that you incur.

[00:09:50] Speaker 02:
So, he could, in fact, possibly get that $12,000 also, and that's a little gray in the law right now.

[00:09:56] Speaker 02:
It's because this is, the case is allowing this, I believe Kurt Goddard was the first one in Keikindorf.

[00:10:02] Speaker 02:
This is Kurt Goddard in Keikindorf.

[00:10:04] Speaker 02:
In that case, you have a separate cause of action for compensatory damages.

[00:10:12] Speaker 02:
And I do these discrimination cases all the time.

[00:10:15] Speaker 02:
And some of the discrimination cases have nothing but some type of pain and suffering like this.

[00:10:21] Speaker 02:
And there's a damages thing.

[00:10:23] Speaker 02:
It's primarily separate and distinct.

[00:10:26] Speaker 02:
And you can have it without any other damages.

[00:10:29] Speaker 03:
Okay, and just to close the one, my impression, correct me if I'm wrong, is that there, at least as of September 2012,

[00:10:40] Speaker 03:
the red card still had four blank slots that had been part of his 2010 red card.

[00:10:51] Speaker 03:
Does it remain true that he's still not certified for task force leader, dozer boss, strike team leader, and firefighter type two?

[00:11:02] Speaker 03:
That's my list.

[00:11:03] Speaker 02:
No, he has most of those back now because

[00:11:07] Speaker 02:
He was working for these people for four years, five years.

[00:11:12] Speaker 02:
This rating thing comes up every year.

[00:11:14] Speaker 02:
In 2001 or 2002, it was disclosed when he transferred from one region to another, not evolving to Taito Forest.

[00:11:24] Speaker 02:
His entire file was lost.

[00:11:27] Speaker 02:
So they had to reconstruct 20 years worth.

[00:11:32] Speaker 02:
And all of those books were gone that they're claiming, talking about.

[00:11:35] Speaker 02:
20 years, they had to reconstruct from 2001 back to 1990s.

[00:11:39] Speaker 02:
So he had basically a brand new file just certified for that whole period.

[00:11:46] Speaker 02:
So when he got to the Tatto National Forest, they knew, they knew that those records weren't there because they'd been lost in the previous region.

[00:11:56] Speaker 02:
So they only had about three years of records.

[00:12:02] Speaker 02:
that applied to when he arrived there.

[00:12:05] Speaker 02:
In those three years, these people were the ones that were signing him.

[00:12:08] Speaker 02:
They knew he was going out.

[00:12:10] Speaker 02:
They could walk in and say, oh, you're a stranger.

[00:12:13] Speaker 02:
We don't know you.

[00:12:13] Speaker 02:
We want to see your credentials.

[00:12:15] Speaker 02:
They're signing him the positions.

[00:12:17] Speaker 02:
So the loss of the file was tremendous, obviously.

[00:12:21] Speaker 02:
But the act of the way they did it when it was a certified file, there weren't hardly any documents there.

[00:12:29] Speaker 02:
There was three years worth of documents, possibly.

[00:12:32] Speaker 02:
But 17 years were the certifications that they would give credit to.

[00:12:38] Speaker 04:
We're into rebuttal time, so you want to save that, and we'll hear from the government.

[00:12:43] Speaker 04:
Thank you.

[00:12:51] Speaker 00:
Mr. Sullivan.

[00:12:52] Speaker 00:
Good morning.

[00:12:52] Speaker 00:
May it please the court.

[00:12:53] Speaker 00:
If this court should affirm the MSP's decision, it was in accordance with law, and its factual findings were supported by substantial evidence.

[00:13:00] Speaker 04:
I'd like to first turn to Mr. Bernard to breach a settlement agreement claim with respect to paragraph 1F, which I understood to be... Can you just briefly kind of clarify this retaliation claim stuff, which I think, at least in my mind, created a little bit of confusion.

[00:13:15] Speaker 00:
Sure, it is confusion, and I think it's a new issue that was not briefed before the court, whether Mr. Bernard is entitled to compensatory damages for a separate retaliation claim.

[00:13:24] Speaker 00:
I would note that before the administrative judge, Mr. Bernard sought in his petition for enforcement and his reply in support of his petition for enforcement was enforcement of the settlement agreement and attorney's fees.

[00:13:38] Speaker 00:
Mr. Bernard did not seek compensatory damages for a separate retaliation claim.

[00:13:43] Speaker 00:
Mr. Bernard had two options before the MSPB.

[00:13:46] Speaker 00:
He could either seek enforcement of the settlement agreement

[00:13:52] Speaker 00:
Or he could seek to rescind the settlement agreement and reinstate the original removal appeal.

[00:13:58] Speaker 04:
And he didn't do the latter.

[00:14:00] Speaker 00:
He didn't do the latter.

[00:14:00] Speaker 00:
He only sought enforcement of the settlement agreement.

[00:14:03] Speaker 00:
And he did that consistently before the MSPB.

[00:14:07] Speaker 00:
And before this court, the release he sought is remand to participate in discovery.

[00:14:13] Speaker 03:
Can I just ask, did you argue in your red brief that even if he could establish

[00:14:20] Speaker 03:
a breach of the settlement agreement that he has not sought any relief that he could get as a result of that finding and therefore the question of breach and the subsidiary question of discovery are essentially moot.

[00:14:43] Speaker 00:
I don't know if we phrased it exactly that way.

[00:14:46] Speaker 00:
Even close?

[00:14:47] Speaker 00:
We addressed the $12,000.

[00:14:49] Speaker 00:
There was a passing reference below to the MSPB that Mr. Bernard had lost $12,000.

[00:14:53] Speaker 00:
And we pointed out in our brief that even if that were true, that Mr. Bernard had lost $12,000 as a result of a breach.

[00:15:01] Speaker 00:
The relief that Mr. Bernard would be entitled to would not be at $12,000.

[00:15:06] Speaker 03:
But the board didn't say anything about that and there's at least some law that might be relevant to our pair of Larry cases.

[00:15:18] Speaker 03:
to talk about the board's ability to award money essentially under the Back Pay Act when there's been something improper.

[00:15:26] Speaker 00:
Sure.

[00:15:27] Speaker 00:
Yes, Your Honor.

[00:15:27] Speaker 00:
And the board did not address that.

[00:15:29] Speaker 00:
I think that's because Ms.

[00:15:31] Speaker 00:
Bernard did not seek that as the relief below.

[00:15:34] Speaker 03:
Well, the board wouldn't have had to get to that, I guess.

[00:15:38] Speaker 03:
Are there any red card

[00:15:41] Speaker 03:
gaps that still need that haven't been filled that relief here might result in filling I don't think relief here I believe that presently today here today mr. Bernard's council indicated that most of the remaining four positions are

[00:15:59] Speaker 00:
that weren't certified in May of 2012 have since been certified.

[00:16:06] Speaker 00:
I don't know if the record reflects this, but I believe there's at least one, if not a couple of positions that are still no longer certified because the qualification records have not been able to be reconstructed.

[00:16:17] Speaker 03:
Can I ask you then about the discovery issue, which does trouble me.

[00:16:24] Speaker 03:
deny that he had a right to discovery in this proceeding.

[00:16:29] Speaker 00:
No, I think the MSPB's cases are clear that there's no regulatory right or entitlement.

[00:16:35] Speaker 03:
The board didn't say his request for discovery could properly be ignored because in an enforcement proceeding you just don't have a right to discovery.

[00:16:44] Speaker 00:
No, the full board said that Mr. Bernard could have engaged in discovery.

[00:16:47] Speaker 00:
He didn't need to express approval to begin the discovery process, whether it be informal discovery,

[00:16:52] Speaker 00:
or formal discovery.

[00:16:55] Speaker 03:
This is my understanding of the lay of the land and I'd like you to correct me.

[00:17:01] Speaker 03:
There's no regulation that specifically applies to discovery in the enforcement proceeding.

[00:17:08] Speaker 03:
It seemed to me that the best you had was that the acknowledgement order in the enforcement proceeding said, see the acknowledgement order in the initial appeal that was settled.

[00:17:22] Speaker 03:
and at the beginning of that first acknowledgement order it says, here's the right to discovery.

[00:17:32] Speaker 03:
The problem I have with that is that the timing rules in the first acknowledgement order as to discovery just absolutely don't fit the timing rules in the second acknowledgement order because you wouldn't even get a response within the due date of his response.

[00:17:49] Speaker 03:
So it seems to me that's just a mismatch

[00:17:52] Speaker 00:
I understand your question.

[00:17:53] Speaker 03:
In which case, what we have is two requests by him to the administrative judge.

[00:18:00] Speaker 03:
Please give me discovery.

[00:18:02] Speaker 03:
And the administrative judge doesn't even rule on them.

[00:18:05] Speaker 00:
Two responses, your honor.

[00:18:06] Speaker 00:
And I understand your question.

[00:18:08] Speaker 00:
The first is, if Mr. Bernard had any questions about the second acknowledgment order, that acknowledgment order expressly told the parties to please contact an administrative judge

[00:18:21] Speaker 00:
with any questions.

[00:18:22] Speaker 00:
He never did that.

[00:18:23] Speaker 03:
The second response that I'd offer is Mr. Bernard... And making the request formally in two filings isn't enough?

[00:18:32] Speaker 00:
I don't think Mr. Bernard made a formal discovery request that were clear and unambiguous so that the administrative judge would know what Mr. Bernard was requesting.

[00:18:44] Speaker 00:
In the conclusion of his petition for an enforcement, Mr. Bernard requested, in addition to enforcement of the

[00:18:49] Speaker 00:
of settlement agreement that the administrative judge consider authorizing limited discovery to resolve any major factual disputes that arise in consideration of... What's unclear about that?

[00:19:04] Speaker 00:
Mr. Bernard's request is that there are any major factual disputes that arise in the administrative judge's consideration of the retaliation claims that discovery be permitted.

[00:19:14] Speaker 00:
But the Forest Service provided evidence in response to the Petition for Enforcement as it was required to, credible, relevant material evidence showing that the Forest Service had already complied with the settlement agreement.

[00:19:29] Speaker 00:
There were internal emails and there were letters from Mr. Bernard's supervisors showing them attempting to reconstruct

[00:19:35] Speaker 03:
Mr. Bernard's... That's the usual kind of... That's the defendant's case and in adversarial proceedings the other side gets to put the individuals under oath and say, now let me ask you exactly

[00:19:52] Speaker 03:
Ms.

[00:19:53] Speaker 03:
Durham about why it was that even in 2010 you accepted all these certifications and now just for lack of documentation, your previous certification, acceptance of certification of all of these things in 2010 is not enough.

[00:20:10] Speaker 03:
Explain that and maybe the answer will be such that the facts look different after the deposition than they do before.

[00:20:19] Speaker 00:
The reason it would not be an abuse of discretion to deny discovery in this case is because the evidence that existed

[00:20:26] Speaker 00:
shows good faith, and it confirms the presumption of good faith.

[00:20:29] Speaker 00:
All Mr. Bernardo was able to do was offer just mere speculation based on two innocent facts, that is that his records were lost and that his records were examined in 2012.

[00:20:38] Speaker 03:
It's a little hard to do more than speculate when you don't get to ask questions as the decision makers about why they made certain decisions, whether they are, and this is a

[00:20:49] Speaker 03:
substantially a subjective determination under the settlement agreement provision about good faith.

[00:20:58] Speaker 00:
But here the evidence that was required to be submitted went to the good faith or went to the bad faith of the Forest Service officials and Mr. Bernard can't point to anything in the record

[00:21:08] Speaker 04:
of the evidence that was required to be submitted that would lend any support to his argument that there was retaliation for... Are you making a harmless error claim because you just asked us that there was no abuse of discretion, but in order to evaluate abuse of discretion, you have to have an analysis of what you're doing and why.

[00:21:26] Speaker 04:
And there was no analysis here, right?

[00:21:28] Speaker 00:
The administrative judge did not...

[00:21:30] Speaker 00:
spell out what he was doing with respect to discovery in his decision in the full board.

[00:21:35] Speaker 04:
So how are we supposed to evaluate whether or not he has used his discretion?

[00:21:38] Speaker 04:
We don't know the basis.

[00:21:39] Speaker 04:
I mean, you can make an argument here as to why he was correct to ignore or reject the discovery request, but there's nothing in the record to indicate that, right?

[00:21:48] Speaker 00:
Well, the full board's decision indicating that Mr. Bernard did not actually need the administrative judges

[00:21:54] Speaker 00:
permission to engage in discovery is the extent of analysis on discovery.

[00:21:58] Speaker 04:
Can I move you to a more global or generic issue on discovery?

[00:22:03] Speaker 04:
What does the board do?

[00:22:04] Speaker 04:
I mean, is this standard that the board, in terms of TFE,

[00:22:09] Speaker 04:
adjudication refers you to the regulations on the other cases.

[00:22:14] Speaker 04:
Is that their policy?

[00:22:15] Speaker 04:
Because obviously, you know, based on what's in the briefs, there are cases in which a board has applied a different rule with respect to petitions for enforcement and discovery, right?

[00:22:25] Speaker 00:
The different MSBB cases indicate that there is no entitlement to discovery, and that is a discretionary issue within the administrative judge's discretion.

[00:22:34] Speaker 00:
That's not necessarily inconsistent with the MSPB's decision here, citing another MSPB decision, indicating that you don't need the express permission of an administrative judge to begin engaging.

[00:22:45] Speaker 04:
Yeah, but as Judge Toronto pointed out, and you agree, that the time frame, they point in the direction of regulations whose time frame for getting discovery would never fit within this regime.

[00:22:57] Speaker 00:
I think that's a fair point.

[00:22:59] Speaker 00:
And to the extent Mr. Bernard needed any clarification, he should have sought clarification from the administrative judge.

[00:23:05] Speaker 00:
He was very capable of serving.

[00:23:07] Speaker 04:
Well, why didn't he, in good faith and correctly, look at board opinions, which have said to do what he did, which is go to the administrative law judge and try to seek him?

[00:23:18] Speaker 00:
But Mr. Brown did not file a motion to engage in discovery.

[00:23:22] Speaker 00:
He could have filed his petition for enforcement and then filed a motion to engage in discovery if there was any doubt in his mind that he could serve the informal or formal discovery request on the Forest Service.

[00:23:34] Speaker 00:
And that's not what happened in this case.

[00:23:36] Speaker 00:
There are a number of things that he could have done below.

[00:23:38] Speaker 00:
He could have, after the acknowledgement order in the petition for enforcement,

[00:23:42] Speaker 00:
was issued, he could have served discovery on the Forest Service.

[00:23:46] Speaker 00:
If the Forest Service thought the discovery was unnecessary or improper, it would have been elevated to the administrative judge.

[00:23:52] Speaker 04:
But what about the time frame here?

[00:23:54] Speaker 04:
The discovery time frame wouldn't have fit with when the record was going to be closed in this case, right?

[00:24:02] Speaker 00:
I think that's right.

[00:24:03] Speaker 04:
So what is the board doing directing people to a discovery regime and time frames which don't fit into the case before them?

[00:24:12] Speaker 00:
I think in this case, the time frame could have been clearer, and it would have been incumbent on whichever... It was clear.

[00:24:20] Speaker 04:
It was clear that it doesn't fit.

[00:24:22] Speaker 04:
What do you mean it could have been clearer?

[00:24:23] Speaker 04:
They pointed into the regulations.

[00:24:24] Speaker 04:
That time frame doesn't... Did they intend something else, do you think?

[00:24:29] Speaker 00:
No, I don't think they intended something else than what they put in the opinion.

[00:24:34] Speaker 00:
It would have been incumbent on Mr. Bernard, though, to the extent it was unclear to him...

[00:24:39] Speaker 04:
that they just do automatically, every AJ just gets put into the acknowledgement letters?

[00:24:47] Speaker 00:
The referral back to the original language?

[00:24:49] Speaker 00:
I don't know for a fact.

[00:24:51] Speaker 00:
I suspect that there's similar language in other acknowledgement orders, but I don't know whether it's a form thing.

[00:24:57] Speaker 00:
I apologize, Your Honor.

[00:25:01] Speaker 00:
But Mr. Bernard could have sought clarification from the administrative judge.

[00:25:05] Speaker 00:
Now he sat on this issue and is bringing it to the court seeking remand so he can engage in discovery that he could have engaged in below the administrative judge or he could have sought clarification from the administrative judge, but he didn't do that.

[00:25:22] Speaker 00:
And I'll briefly turn to what I assumed was Mr. Bernard's primary issue on appeal and that is whether Mr. Bernard was treated differently from any other force.

[00:25:33] Speaker 00:
of firefighters in paragraph one of the settlement agreement.

[00:25:37] Speaker 00:
It contains clear language that indicates Mr. Bernard would not be restricted from applying for supervisory positions or from going on firefighting assignments or from working on a position taskbook.

[00:25:48] Speaker 00:
In sum, that paragraph 1F provides that Mr. Bernard would be treated like any other firefighter, and that means he would be subject to the same policies governing other firefighters.

[00:25:58] Speaker 00:
And as the court is aware, the Forest Service has a policy that there must be an annual red card or instant qualification card issued.

[00:26:07] Speaker 00:
And that's what happened when Mr. Bernard was transferred to a new ranger district within Tonto.

[00:26:12] Speaker 00:
And it was discovered at the time that qualification records were missing.

[00:26:17] Speaker 00:
The full board in its decision noted that it's possible that there was closer scrutiny to the qualification records because, with different supervisors looking at them, but the procedures that were followed when Mr. Bernard was transferred to a new location

[00:26:31] Speaker 00:
are procedures that are set out in the guides and manuals of the Forest Service.

[00:26:36] Speaker 04:
Yeah, but that's not enough, right?

[00:26:38] Speaker 04:
I mean, there's practice and there's policy.

[00:26:41] Speaker 04:
So the question here has to do with the practice, not necessarily just the policy.

[00:26:46] Speaker 00:
I think that's right, Your Honor.

[00:26:47] Speaker 00:
And there's a declaration in the evidence from Ms.

[00:26:49] Speaker 00:
Graham, a Forest Service official, indicating what the practices are.

[00:26:54] Speaker 00:
And one of the practices is when an employee comes from a new duty location is to examine the physical qualification records.

[00:27:01] Speaker 00:
There's also spot checking for the integrity of records.

[00:27:05] Speaker 00:
And she notes a couple other individuals around this time frame whose records were examined as well.

[00:27:13] Speaker 00:
There are no further questions.

[00:27:14] Speaker 00:
For the reasons discussed today and in our brief, the court should affirm the decision of the MSPB.

[00:27:28] Speaker 02:
I have a problem with this discovery as to what Mr. Bernard should have done when you go to and put in to the judge that I need discovery for this, this, this, and this to properly present my case to you

[00:27:43] Speaker 02:
for retaliation and bad faith.

[00:27:47] Speaker 02:
I don't know what else is supposed to do under these procedures that have been before the board a long time.

[00:27:54] Speaker 02:
This 183, Section 183 that makes it strictly up to the judge as to whether or not you get this type of discovery.

[00:28:03] Speaker 02:
You put it in your initial petition for enforcement.

[00:28:06] Speaker 02:
It was right in the first day in front of the judge and to say that

[00:28:11] Speaker 02:
should have done this, this, this, and this, should have made a motion.

[00:28:16] Speaker 02:
That's wrong.

[00:28:17] Speaker 02:
Putting it in the pleading is the same as a motion.

[00:28:19] Speaker 02:
The motion is merely to put it before a judge.

[00:28:21] Speaker 02:
And that's what he did.

[00:28:23] Speaker 02:
And he did it from the first day.

[00:28:24] Speaker 02:
And this reliance on the Larry King Order, which the board relied on, and it broke its precedent in this particular decision, the major paragraph quoted by the board is 10.

[00:28:39] Speaker 02:
Paragraph 9,

[00:28:41] Speaker 02:
ironically, acknowledges that they don't have discovery automatically.

[00:28:46] Speaker 02:
That is discretionary.

[00:28:48] Speaker 02:
Paragraph 9 is correctly stating the regulation, and it is in 183, the regulation.

[00:28:54] Speaker 02:
So the King case correctly cites the discovery process in paragraph 9, and then it faults the attorney in 10.

[00:29:03] Speaker 02:
And the reason it faults the attorney, if you read this, the attorney failed to file a motion to compel

[00:29:10] Speaker 02:
which indicates that in the King case, the judge had already authorized discovery.

[00:29:16] Speaker 02:
And to rely on this case to be is totally misplaced because you wouldn't be faulting somebody for not putting in a motion to compel if you hadn't already authorized discovery.

[00:29:28] Speaker 02:
So I believe in the King case, discovery was authorized.

[00:29:31] Speaker 02:
And then you have in 2010, the Young versus the Postal Service.

[00:29:37] Speaker 02:
And that reaffirms, again, the 1995 precedent.

[00:29:42] Speaker 02:
All discovery in an enforcement case is at the discretion of the judge.

[00:29:46] Speaker 02:
There's no automatic.

[00:29:48] Speaker 02:
You don't challenge the acknowledgement order.

[00:29:50] Speaker 02:
You know what it is.

[00:29:51] Speaker 02:
The timeframes are there.

[00:29:53] Speaker 02:
You don't pick the phone up and say, judge, what about these timeframes?

[00:29:59] Speaker 02:
Enforcement orders don't involve due process.

[00:30:01] Speaker 02:
The other cases do.

[00:30:02] Speaker 02:
That's why they have automatic discovery.

[00:30:05] Speaker 02:
The reason they don't have it in enforcement cases

[00:30:07] Speaker 02:
is because there's not a lot of due process involved, unless the facts become disputed to the point that due process might be involved.

[00:30:16] Speaker 02:
And that's what you had here.

[00:30:18] Speaker 02:
Due process has gotten very involved.

[00:30:20] Speaker 02:
Now, to say that, and go over this issue of the good faith on the part of the agency, the Graham letter, the Graham letter that took away all his rights,

[00:30:37] Speaker 02:
She says, doing our review, it was determined that specific documents were missing.

[00:30:43] Speaker 02:
Well, how do you have specific documents missing out of an entire file?

[00:30:46] Speaker 02:
There was no file.

[00:30:48] Speaker 02:
So that was a lie.

[00:30:49] Speaker 02:
Due to lack of documentation, I requested an audit.

[00:30:56] Speaker 02:
There's no sign of an audit anywhere.

[00:30:58] Speaker 02:
The two people that did the inspection of the so-called file never, ever put in a statement in this case.

[00:31:06] Speaker 04:
We specifically asked to interview those people in the discovery request.