[00:00:00] Speaker 01:
Next argued case is number 14, 3152, Fairbanks against the EPA.

[00:00:06] Speaker 01:
Mr. Kaplan.

[00:00:10] Speaker 03:
Thank you, and may it please the court.

[00:00:11] Speaker 03:
Your Honor, my entry of appearance was filed, I believe, at least a week ago because Ms.

[00:00:15] Speaker 03:
Beckett left our firm, is now looking for the government.

[00:00:19] Speaker 03:
And I believe a motion to substitute lead counsel either has been or is being filed.

[00:00:25] Speaker 01:
OK.

[00:00:25] Speaker 01:
I will proceed.

[00:00:27] Speaker 01:
Thank you very much.

[00:00:28] Speaker 02:
Just a minor thing, and this is addressed to the government too, why is it that the briefs aren't properly prepared with a red and gray cover?

[00:00:39] Speaker 03:
Your Honor, I have to plead ignorance not having been involved in this case before preparing for oral argument.

[00:00:47] Speaker 03:
I apologize to the court if we have failed to follow the court's rules with respect to the covers of the briefs.

[00:00:56] Speaker 03:
I think there are some facts in this case that need some elucidating before we get into a discussion of the law.

[00:01:01] Speaker 03:
And the first is the agency seems to assert throughout that all employees in this case had to be furloughed as a matter of agency policy, that there was simply no getting around this preordained decision and that there was no discretion but for all of these employees to be furloughed.

[00:01:23] Speaker 03:
But by the agency's own documents,

[00:01:25] Speaker 03:
That assertion is incorrect.

[00:01:29] Speaker 03:
I would draw the court's attention to a recent document filed by the government.

[00:01:34] Speaker 03:
It's, I think, page one of its supplemental appendix that just filed with its corrected brief.

[00:01:41] Speaker 03:
And I think they also number it as page 240 of the joint appendix.

[00:01:44] Speaker 03:
And this is a document called Process and Guidance for Managers.

[00:01:48] Speaker 03:
And in this document, this is what the agency says.

[00:01:52] Speaker 03:
that some employees will have a right to reply, a 15-day right to reply, quote, to provide a justification for being excused from the furlough.

[00:02:03] Speaker 03:
So certainly, there was, right within the agency's own documents, an indication that there was discretion that somebody in this case would have.

[00:02:12] Speaker 03:
Secondly, in the notice.

[00:02:13] Speaker 02:
What is this document?

[00:02:15] Speaker 03:
And where is it?

[00:02:16] Speaker 03:
The agency, I'm sorry, the respondent filed a corrected brief

[00:02:22] Speaker 03:
just a few days ago and has attached to it, I think, a supplemental joint appendix.

[00:02:32] Speaker 03:
The very first page of that is a document called Administrative Furlough Process and Guidance for Managers.

[00:02:52] Speaker 03:
Under the heading, guidance for implementation, you see about halfway down that paragraph, the agency says this, not all employees have the right to apply.

[00:03:02] Speaker 03:
Those who do will have 15 calendar days to provide a justification for being excluded from the furlough.

[00:03:10] Speaker 03:
So isn't your contention that the deciding officials didn't possess the authority to modify the

[00:03:16] Speaker 03:
the furloughs in instances where modification was necessary.

[00:03:20] Speaker 03:
The contention here is that the individuals that were named titularly as the deciding officials possessed no discretion, no authority, for example, to exempt anyone from the furlough, which means that any reply opportunity to them is a mere formality, an empty formality.

[00:03:41] Speaker 03:
And as notions of due process, and Loudermill certainly indicate that the root of due process is the ability to get to the discretion of the decision maker before there is the deprivation.

[00:04:00] Speaker 03:
And that didn't happen here because the individuals named as the deciding officials in reality weren't.

[00:04:08] Speaker 02:
Deciding officials and this is beyond this is beyond dispute the government So do you agree that if there was no discretion with respect to the furloughs that there was no error here?

[00:04:21] Speaker 03:
If there was absolutely no discretion if the facts in the record supported that Then I think we would be on shake your ground Judge Dyke

[00:04:33] Speaker 03:
But there are a couple reasons, not just the one I mentioned, but a couple other reasons to show that there was discretion, if I may address those briefly.

[00:04:42] Speaker 03:
In the notice to the employees, giving them their rights to reply to the proposal, the notice says if this action is approved by the deciding official.

[00:04:53] Speaker 03:
Again, certainly connoting that the deciding official has some discretion here to make a decision.

[00:05:00] Speaker 03:
And even in

[00:05:03] Speaker 03:
Mr. Mather's argument, Mr. Mather's testimony in this case is found by the arbitrator.

[00:05:11] Speaker 03:
The deciding officials named by the agency did not possess any of this discretion.

[00:05:18] Speaker 03:
Did the deciding officials have authority to modify those template letters?

[00:05:24] Speaker 03:
They had, there were I think a couple different template letters.

[00:05:29] Speaker 03:
They could modify the letter.

[00:05:31] Speaker 03:
They couldn't modify the decision.

[00:05:33] Speaker 03:
That is, there was no authority, contrary to, for example, like the Secretary of Defense gave to his subordinates in the Gadot's case.

[00:05:43] Speaker 03:
There was no authority to exempt someone from the furlough, Your Honor, no authority to reduce the days, no authority to reduce the hours.

[00:05:51] Speaker 03:
And the testimony is quite clear.

[00:05:53] Speaker 03:
Mr. Mather testified, for example, that the following.

[00:05:58] Speaker 03:
I did not see my role to review any responses with an intent towards making any independent decision.

[00:06:06] Speaker 02:
But most of the responses were just boilerplate responses that didn't ask for exemption of particular employees, correct?

[00:06:13] Speaker 03:
Not exactly, Your Honor, and that's one of the other facts I wanted to address, because that's what the government says in its brief, that these were all boilerplate and no employees.

[00:06:22] Speaker 02:
No, they weren't all.

[00:06:22] Speaker 02:
There were a couple of them that

[00:06:24] Speaker 02:
mention individual circumstances, but the vast majority of them were boilerplate responses that didn't ask that the individual employee be exempted.

[00:06:42] Speaker 03:
Those that I've seen at the end of the boilerplate, and most of it was boilerplate granted, Your Honor,

[00:06:50] Speaker 03:
Presented facts you need to answer my question the vast majority I don't care about the ones that you've seen that's not the relevant universe the vast majority of the responses were boilerplate and did not ask for exemption of the individual employees I cannot concede that because again Those that I've seen going through the record at the very end of it contained circumstances in other words you can answer my question because you know what the facts are

[00:07:17] Speaker 03:
Well, I do know what the facts are with respect to those that have been placed into the record, and those that have been placed into the joint appendix by the parties.

[00:07:26] Speaker 03:
And those that have been placed into the joint appendix show that there were individual issues that were raised by the employees.

[00:07:35] Speaker 03:
One employee, for example, and this is at page 260 of the joint appendix, says at the end of, yes, Your Honor, what would be a boilerplate response?

[00:07:46] Speaker 03:
says the following.

[00:07:49] Speaker 02:
The boilerplate response didn't ask for an exemption, right?

[00:07:53] Speaker 03:
The boilerplate portion did not.

[00:07:56] Speaker 03:
It made arguments related to contract violations, et cetera.

[00:08:01] Speaker 03:
That would be correct, Your Honor.

[00:08:04] Speaker 03:
But those that did, and many employees did add, factual circumstances related to their own situation, did ask for an exemption.

[00:08:12] Speaker 03:
And this one employee, for example, says, and this is a page 260 of the Joint Appendix, it's page, I think, 20 of the new... How many employees said... Your Honor, I'm sorry, I don't know that answer.

[00:08:23] Speaker 02:
The employee says... I don't think the record supports the idea that it's many.

[00:08:28] Speaker 03:
But go ahead.

[00:08:30] Speaker 03:
Well, even if it's just one, there's a violation of due process for that employee.

[00:08:36] Speaker 03:
The employee says, in the emergency response program I work in,

[00:08:40] Speaker 03:
I'm constantly receiving and responding to calls and inquiries even when I'm not the designated responder in a certain week.

[00:08:47] Speaker 03:
These communications are urgent in nature and the agency's mission will suffer if not attended to immediately.

[00:08:53] Speaker 03:
This is the kind of information that should be presented to somebody with discretion so that they can make the decision whether this is a valid argument, whether this employee has presented a circumstance where there will be harm to the agency's mission

[00:09:07] Speaker 03:
if he is not exempted from the furlough.

[00:09:15] Speaker 03:
The agency also indicates factually in this case that the role of the human resource department and the general counsel in providing review of the responses and the various letters, that that constituted really review of their responses

[00:09:35] Speaker 03:
The problem with that, Your Honors, is that runs afoul of the agency's own admission, and this I believe is in page 31 of its brief, that the deciding officials here had no discretion.

[00:09:48] Speaker 03:
It runs afoul of the arbitrator's decision, I believe page 51 of the joint appendix, that the decision makers had no discretion, and runs afoul of Mr. Mather's testimony and Ms.

[00:10:01] Speaker 03:
Giles'

[00:10:02] Speaker 03:
testimony admitting that this decision was made at headquarters and they had no discretion.

[00:10:07] Speaker 03:
Therefore, any role that the Human Resource Office was playing or the Office of General Counsel to put the responses together in a way that seemed to comply with the law is certainly not the equivalent of action by someone who has authority and discretion to alter the decision.

[00:10:30] Speaker 03:
And just like I would point out, there's one other factor that does apply to all employees, I think, with respect to the issue of discretion.

[00:10:40] Speaker 03:
And that is the extent of this furlough, the need for this furlough, was constantly under review by the agency.

[00:10:50] Speaker 03:
If you recall, when the agency first announced this furlough, it was going to be 13 days.

[00:10:56] Speaker 03:
And then they change it, no, it's going to be 10 days.

[00:10:58] Speaker 03:
And then they change it, no, it's going to be 55 hours.

[00:11:00] Speaker 03:
And then they change it again, yes, it's 47 hours.

[00:11:03] Speaker 03:
Somebody in the agency had discretion.

[00:11:06] Speaker 03:
Somebody was constantly looking at this issue.

[00:11:09] Speaker 02:
No, but that's discretion as to the broad application to each employee, not discretion with respect to individual employees.

[00:11:17] Speaker 03:
I don't doubt that, Your Honor, but it still goes to the issue that we don't have here what I think the agency is trying to connote, that there was at one point in time, like the Bing Bang Theory, a decision that all employees have to be furloughed.

[00:11:35] Speaker 02:
Well, there was a decision that all employees have to be furloughed for 47 hours, eventually.

[00:11:40] Speaker 03:
Well, eventually that was the decision without taking into account

[00:11:46] Speaker 03:
anything that any individual employee said about why they should be exempted from that.

[00:11:51] Speaker 03:
And the agency has told us, as we've indicated from looking at this policy guides, the agency says that employees were supposed to be given the opportunity to explain why they should be exempted from the furlough.

[00:12:04] Speaker 03:
So this is either an indication that there should have been discretion, or it's some kind of sham document that's issued to the agency when, in fact, there was not going to be discretion.

[00:12:16] Speaker 03:
And I would like not to think that it's some subterfuge by the agency, that it was a real statement of its policy and its intent, but it never carried it through because it just did not give the decision makers the authority that they had and the authority that we've seen in other agencies.

[00:12:38] Speaker 03:
I'm going to ask the government to give me a hypothetical in which

[00:12:45] Speaker 03:
They receive a communication and say, oh, this is somebody we have to not furlough because their job is so important that we have the discretion to say we're going to exempt them.

[00:13:02] Speaker 03:
I can't ask you, I could ask you that, but you wouldn't be able to answer that.

[00:13:09] Speaker 03:
I wouldn't, but the point is this, and I think the case law is clear, certainly the case law

[00:13:14] Speaker 03:
you know, of the MSPB.

[00:13:17] Speaker 03:
And that is, once there is a, in a situation of a suspension or a furlough, something other than a termination, there still are due process rights.

[00:13:28] Speaker 03:
And the- Due process rights are an opportunity, notice an opportunity to be heard.

[00:13:33] Speaker 03:
A meaningful opportunity to be heard.

[00:13:35] Speaker 03:
And it's the case law, I believe- So the question I have to the government is, if you've got one that said, hey, I'm the guy in charge of the nuclear fuel rods,

[00:13:42] Speaker 03:
Uh, they would say, uh-oh, we're not going to furlough it.

[00:13:47] Speaker 03:
Except they wouldn't say that.

[00:13:48] Speaker 03:
And the reason we know they wouldn't say that, your honor, is because as the arbitrator found, as the agency has admitted, and as Mr. Maver and Ms.

[00:13:59] Speaker 03:
Jobs testified, they had no discretion.

[00:14:03] Speaker 03:
They believed

[00:14:05] Speaker 02:
But that's sort of inconsistent.

[00:14:07] Speaker 02:
On the one hand, you're saying there was discretion to exempt people.

[00:14:10] Speaker 02:
On the other hand, you're saying there was no discretion.

[00:14:12] Speaker 02:
If there was no discretion to exempt anybody, if it was a flat rule that didn't depend on individual circumstances, there's no point to notice an opportunity to address an issue which isn't a relevant issue.

[00:14:26] Speaker 03:
What I'm saying is not inconsistent at all, Your Honor, and this is why.

[00:14:29] Speaker 03:
In this case, there was discretion.

[00:14:31] Speaker 03:
The problem was the discretion just wasn't given down to the people that were named as deciding officials.

[00:14:37] Speaker 03:
In reality, the person who had the discretion here, because of the way the agency chose to run this furlough, was the agency administrator.

[00:14:47] Speaker 03:
That's who had the discretion.

[00:14:49] Speaker 03:
Now, the agency had a couple choices here.

[00:14:51] Speaker 03:
The agency could have done what the Secretary of Defense did, was to delegate that discretion down.

[00:14:59] Speaker 03:
uh... to to lower-level officials or what the agency could have been chosen to hear is to retain this discretion in the in the administrator that with its decision it may be more onerous for the agency in terms of how it deals with it but that was the agency's choice your honor as to how to conduct this rift now i'm not so why shouldn't we look at this record as the agency administrators saying i'm not going to make any exceptions because that runs afoul

[00:15:28] Speaker 03:
what we've seen in the policy guidance, which indicates that's the purpose of the reply to explain why you should be exempt.

[00:15:37] Speaker 03:
It runs afoul of the notice that was issued to the employees under 50C 7513 that says if the deciding official sustains the furlough, the following things

[00:15:50] Speaker 03:
will happen.

[00:15:51] Speaker 03:
Again, those are either sham documents or they are reflective of how the furlough should have been conducted.

[00:15:59] Speaker 03:
What I was going to say, Your Honor, is I'm not suggesting at all that because the Administrator retained this discretion that he personally had to hear all the replies.

[00:16:11] Speaker 03:
There's no requirement under the law that he personally hear the replies.

[00:16:14] Speaker 03:
The replies

[00:16:16] Speaker 03:
I'm sorry, my comments expired.

[00:16:17] Speaker 03:
May I finish my comments?

[00:16:18] Speaker 01:
Finish the sentence.

[00:16:19] Speaker 03:
OK, thank you.

[00:16:21] Speaker 03:
There could be reply officials appointed who then summarize the issues in the reply, present it to the person with discretion, the administrator, who would then make the decision.

[00:16:33] Speaker 01:
Thank you.

[00:16:34] Speaker 01:
Thank you, Mr. Kaplan.

[00:16:44] Speaker 01:
Mr. Stern.

[00:16:45] Speaker 00:
I wasn't sure if you could get a word out before that question, but of course I knew the question was coming, Your Honor.

[00:16:57] Speaker 00:
The agency decided that there would be no exemptions.

[00:17:01] Speaker 00:
That's the bottom line.

[00:17:02] Speaker 00:
That was the determination that was made at the highest level.

[00:17:07] Speaker 00:
So the deciding officials did not have that ability.

[00:17:10] Speaker 00:
There were certain policy decisions.

[00:17:12] Speaker 00:
There were certain legal decisions.

[00:17:15] Speaker 00:
that basically were not going to be made by the deciding official, both in the interest of fairness and efficiency and justice.

[00:17:21] Speaker 00:
And there were no exemptions.

[00:17:23] Speaker 00:
What the deciding official did, the deciding official served as a pivotal figure.

[00:17:28] Speaker 00:
First, in terms of being the one that actually issued the decision letters, and in ensuring that the proper decision letters went out to the proper employees, both in terms of the notice of any appeal rights that they may have had, but also in terms of ensuring

[00:17:45] Speaker 00:
that the decision letter an individual employee got was a letter that addressed the individual matters that they raised in their response, because those matters weren't that considered by the agency.

[00:17:57] Speaker 00:
And that's what happened.

[00:17:58] Speaker 02:
How about this document, which unfortunately I don't have the corrected brief in front of me with the supplemental appendix, but what about this document at A240, which

[00:18:09] Speaker 02:
they suggest did say that there was discretion to exempt people.

[00:18:14] Speaker 02:
But what are we to make of that?

[00:18:15] Speaker 00:
Yeah, Your Honor, it didn't use the word exempt.

[00:18:17] Speaker 00:
It referred to excluding.

[00:18:20] Speaker 00:
But the document goes on on the next page to say to specifically address what the decision letters, how that will happen.

[00:18:31] Speaker 00:
And it specifically provides, and this is labeled 241 or also alternatively,

[00:18:37] Speaker 00:
Supplemental Appendix 2, and I'm sorry for the confusion, but it specifically says... It's in A41?

[00:18:42] Speaker 00:
Excuse me.

[00:18:43] Speaker 02:
The same documents of A41?

[00:18:44] Speaker 00:
Yes.

[00:18:48] Speaker 00:
No, I'm sorry.

[00:18:48] Speaker 00:
The same document is not in the Joint Appendix.

[00:18:51] Speaker 00:
It's only in the Supplemental Appendix.

[00:18:54] Speaker 00:
And it specifically says, with respect to decision letters, that decision letter templates will be provided by the Office of Human Resources.

[00:19:02] Speaker 00:
Employees who have replied will receive, and this is the role of the deciding official,

[00:19:07] Speaker 00:
will receive a template with a personalized section addressing the employee's reply.

[00:19:13] Speaker 00:
The essence of a constitutional due process opportunity to be heard is the opportunity to have that response considered.

[00:19:22] Speaker 00:
And in this case, that's what these employees got.

[00:19:25] Speaker 03:
Does consider imply that it's something more than a automatic response?

[00:19:34] Speaker 00:
Yes, Your Honor, and it was more than just an automatic response.

[00:19:38] Speaker 00:
However, it was arrived at by virtue of, for lack of a better word, farming out certain of the considerations.

[00:19:45] Speaker 03:
The automatic response is always no, isn't it?

[00:19:48] Speaker 03:
It's just no couched in various ways.

[00:19:50] Speaker 00:
It happened to be the case because each time the agency looked at the legal, primarily legal challenges that were being presented, the legal experts provided responses that indicated that those legal objections were not valid.

[00:20:04] Speaker 00:
when there were objections to the basis of the furlough?

[00:20:09] Speaker 03:
So if there was a factual response, I'm the person in charge of the fuel rods, and there's going to be a meltdown.

[00:20:16] Speaker 00:
That wasn't a relevant factual response because the agency had already decided that there would be no exemptions and in fact the agency had staggered these furloughs so that the dates were not in order that they would in fact have coverage and that's why they were able to decide that there would be no exemptions.

[00:20:32] Speaker 00:
So relevant responses went either to legal challenges, which got due consideration by legal experts.

[00:20:39] Speaker 00:
If there had been a valid legal challenge, the legal experts would have had to respond to that.

[00:20:43] Speaker 00:
or they perhaps responded to the financial circumstances and the financial policy decisions, and those responses also received due consideration by the experts within the agency who were responsible for looking at the financial circumstances of the sequestration, its effect on the agency, and the decision to respond by the necessity as a matter of sound fiscal determination to furlough some employees.

[00:21:10] Speaker 00:
So in terms of the constitutional elements of this,

[00:21:14] Speaker 00:
The constitutional right is to respond and to have that response considered meaningful at a meaningful time and in a meaningful manner.

[00:21:20] Speaker 00:
What was the fiscal consideration?

[00:21:22] Speaker 00:
The fiscal consideration was that sequestration had caused this agency to have a budget shortfall that had to be addressed within that budgetary area.

[00:21:29] Speaker 03:
Remember the individualized fiscal considerations.

[00:21:31] Speaker 00:
There were no individual fiscal considerations because the agency had determined as a matter of its fiscal, of its approach to the shortfall, they would have to furlough employees.

[00:21:40] Speaker 00:
They decided the fairest way to implement those furloughs

[00:21:43] Speaker 00:
was to furlough every single employee except for the administrator and the deputy administrator.

[00:21:49] Speaker 03:
So the individualized response was the fact that you have an autistic child is simply irrelevant?

[00:21:57] Speaker 00:
Yes, Your Honor.

[00:21:58] Speaker 00:
And that's all right.

[00:21:59] Speaker 00:
Because in certain cases, certain factors will be irrelevant.

[00:22:03] Speaker 00:
So for example, in this court's recent decision in Ryan, the court said when you are removed because you lack a qualification for your job, such as a security clearance,

[00:22:13] Speaker 00:
individual mitigating factors such as Douglas really aren't relevant.

[00:22:17] Speaker 00:
In that case, if someone said, don't remove me because I have an autistic child, the court would say, that factor is irrelevant.

[00:22:23] Speaker 00:
The deciding official shouldn't be penalized for not considering that factor.

[00:22:26] Speaker 03:
Well, not the court.

[00:22:27] Speaker 03:
I'm talking about the deciding official.

[00:22:29] Speaker 03:
The deciding official would provide an individualized response, which would say, we recognize that you have an autistic child, but it's irrelevant to our decision because we're bound.

[00:22:41] Speaker 00:
Right, and the deciding official was charged with ensuring, exactly in that guidance that I just indicated, they were charged with ensuring that employees who replied received a template that addressed, had a personalized section addressing that employee's reply.

[00:22:55] Speaker 00:
But for purposes of ensuring agency-wide fairness, the agency wanted to make sure that all, so that all responses saying I have an autistic child would receive the same consideration.

[00:23:05] Speaker 00:
If we had regional

[00:23:07] Speaker 00:
differences is that that would, I think, impede the fairness of the consideration, and it's all right for the agency to have an agency-wide policy that addresses that problem.

[00:23:15] Speaker 03:
I'm not unsympathetic to your client's dilemma.

[00:23:21] Speaker 03:
They're faced with a circumstance where they're bound by the Antideficiency Act, and they're trying in some fashion to maintain the smattering of morale which might still exist in the agency, which is why they're trying to

[00:23:37] Speaker 03:
along with other considerations, why they're trying to do something individualized, but that individualized response as a bottom line always says no.

[00:23:46] Speaker 03:
Is that a fair summary?

[00:23:49] Speaker 00:
In this case, there was no individual employee who, and certainly petitioners have identified none, who raised a reply that didn't receive a consideration

[00:24:03] Speaker 00:
or that raised a reply that justified or identified a legal error where the agency improperly ignored it or gave the wrong legal response.

[00:24:12] Speaker 00:
There was nothing raised that justified.

[00:24:14] Speaker 03:
Let me give you a hypothetical because you're dealing with human beings.

[00:24:17] Speaker 03:
So did the agency, the agency gets one that says, if I don't, if I'm furloughed, I'm going to kill myself.

[00:24:25] Speaker 03:
Did you refer it in some fashion to something?

[00:24:30] Speaker 03:
That is, was there a human response?

[00:24:33] Speaker 03:
other than we regret that you're going to kill yourself, but unfortunately, we don't have the money.

[00:24:39] Speaker 00:
Well, again, that being a hypothetical, I would say that in that hypothetical, it's the agency's procedures that we're looking at here.

[00:24:48] Speaker 00:
And the agency's procedures required each employee to receive a decision letter that addressed their personal issues.

[00:24:55] Speaker 02:
Well, the answer would be that that's a matter for human resources, and the agency would do something about it, but this is the wrong context to take care of that problem.

[00:25:04] Speaker 00:
I think that is part of the answer, absolutely, Your Honor, but the other part of the answer is that the agency's procedures still ensured that that individual would get a personalized reply.

[00:25:12] Speaker 00:
It might not be the reply that they wanted to hear because it would come out of human resources.

[00:25:16] Speaker 03:
But it would also, what I'm driving at is that you're still trying to maintain that modicum of morale in some fashion, are you not?

[00:25:26] Speaker 03:
I mean, it's not just canned, or is it just canned?

[00:25:31] Speaker 00:
Well, it wasn't just canned, but the agency made the decision that furloughing every employee for the same amount of days would in fact boost morale.

[00:25:40] Speaker 00:
I mean, they've decided that would be the fairest way.

[00:25:42] Speaker 02:
It wasn't canned response.

[00:25:43] Speaker 02:
The only response is, we can't do anything about it.

[00:25:47] Speaker 00:
I'm sorry.

[00:25:47] Speaker 02:
It is a canned response.

[00:25:49] Speaker 02:
The canned response is, we can't do anything about it.

[00:25:52] Speaker 00:
It's not a canned response, except to the extent that each petitioner's response is canned.

[00:26:00] Speaker 00:
They were, in fact, canned.

[00:26:01] Speaker 00:
They were boilerplates and plastics from the employees.

[00:26:04] Speaker 02:
But the agency's response was, we don't care what the circumstances are.

[00:26:08] Speaker 02:
You're going to be furloughed.

[00:26:09] Speaker 02:
Everybody's going to be furloughed, right?

[00:26:12] Speaker 00:
Yes, in terms of individual circumstances, yes.

[00:26:14] Speaker 00:
That, in fact, was the agency's decision.

[00:26:17] Speaker 00:
And the agency, there's nothing wrong with that.

[00:26:18] Speaker 00:
The agency can have a policy that says, given these circumstances, the basis for the furlough, the fiscal shortcomings, the policy decisions made by the administrator,

[00:26:29] Speaker 00:
this is the policy answer is to furlough employees, that's okay.

[00:26:34] Speaker 03:
I suppose what I'm driving at is whether you're able to say we did the best we could or you're not.

[00:26:42] Speaker 00:
I think the agency clearly did not only the best they could but the procedures that they used both in terms of the pre-implementation of the furlough and of course there was a post-implementation right to appeal to an arbitrator.

[00:26:55] Speaker 00:
I'm saying that those were not only the best that they could do, but that they absolutely meet constitutional due process, because they were given notice, which is the first element, and they were given an opportunity to respond, and their responses were considered by the appropriate experts, with the appropriate expert consultations within the agency, and they were given replies that addressed any

[00:27:20] Speaker 00:
the canned parts as well as the personalized section.

[00:27:23] Speaker 00:
Well, I don't understand.

[00:27:24] Speaker 02:
I mean, basically what you're saying is we didn't need to give any notice of opportunity to be heard because there wasn't any issue here to which people could address themselves because everybody was going to be treated the same way and that decision had already been made.

[00:27:37] Speaker 02:
I mean, if there's no relevant issue, there's no notice of opportunity to be heard.

[00:27:42] Speaker 02:
But for you to say, oh, well, we gave them due process because there was notice of opportunity to be heard, but nobody was going to

[00:27:48] Speaker 02:
respond to any of it, so it was irrelevant.

[00:27:51] Speaker 00:
I hope that that's not what I said because that's really not what I intended to say.

[00:27:55] Speaker 00:
They certainly were given notice, so that's the first aspect.

[00:27:59] Speaker 00:
They were given notice that this action was proposed and was going to take place.

[00:28:05] Speaker 00:
They were given an opportunity to raise challenges to that.

[00:28:08] Speaker 00:
They were completely unlimited number of relevant factors that they could raise in their response, but they could raise legal challenges

[00:28:17] Speaker 00:
to the sufficiency of the notice, to the timing of the notice, to the amount of notice, the information that was considered.

[00:28:25] Speaker 00:
They could even raise challenge to the policy decisions.

[00:28:28] Speaker 00:
All of those challenges they could raise and they were considered by the agency by the various departments that had expertise.

[00:28:37] Speaker 00:
What was not relevant for them to raise was some individual hardship circumstances.

[00:28:43] Speaker 00:
because the agency had decided that that was not going to be a source of exemption.

[00:28:47] Speaker 00:
And that's OK.

[00:28:48] Speaker 00:
That doesn't render either the notice or the opportunity to respond a sham in any way.

[00:28:53] Speaker 00:
It just says that certain factors are not relevant.

[00:28:58] Speaker 00:
That's all it says.

[00:28:59] Speaker 00:
We still have provided them with notice so that they can anticipate the furlough and make whatever plans they possibly can make.

[00:29:06] Speaker 00:
And they can also formulate their legal challenges, which they did en masse.

[00:29:11] Speaker 00:
They had paragraph after paragraph.

[00:29:13] Speaker 00:
of legal challenges.

[00:29:14] Speaker 00:
If they hadn't had the notice, they wouldn't have had an opportunity to raise those legal challenges.

[00:29:18] Speaker 00:
But they did.

[00:29:18] Speaker 00:
They formulated those legal challenges.

[00:29:20] Speaker 00:
They presented them to the agency.

[00:29:22] Speaker 00:
The agency considered them, and they responded to them.

[00:29:26] Speaker 00:
That was their pre-implementation due process.

[00:29:30] Speaker 00:
They also had post-implementation due process before the arbitrator.

[00:29:34] Speaker 00:
The Supreme Court has said, of course, that what due process is required depends on the circumstances.

[00:29:41] Speaker 00:
in these circumstances where the nature of the deprivation, and again using the Supreme Court factors in Matthew versus Eldred, the nature of the deprivation, although admittedly difficult for individual people, was comparatively minor compared, for example, to a permanent termination or an even longer furlough or suspension.

[00:30:02] Speaker 00:
The procedures

[00:30:04] Speaker 00:
effectively mitigated the likelihood of any error in terms of people who were furloughed, and the nature of the government's interest in following the procedures that they developed was extremely strong, given the sequestration, the emergency nature, the thousands of individuals who were being furloughed.

[00:30:22] Speaker 00:
In these circumstances, constitutional due process is met.

[00:30:35] Speaker 01:
You have your rebuttal.

[00:30:41] Speaker 03:
Thank you.

[00:30:42] Speaker 03:
Very briefly, I still don't understand the government's argument that there was no discretion here, no decision to be made in light of this language in its own policy issuance.

[00:30:56] Speaker 03:
Those who do have a right to apply

[00:30:59] Speaker 03:
have 15 calendar days to provide a justification for being excluded from the furlough.

[00:31:07] Speaker 03:
I submit that that's contrary to what the government is positing, that there was no possibility of exclusion or exemptions from the furlough.

[00:31:14] Speaker 03:
Well, what the government's saying is that you didn't make a sufficient legal argument in any one of the responses.

[00:31:20] Speaker 03:
This doesn't say anything about just being relegated to legal arguments, factual arguments.

[00:31:26] Speaker 03:
And I don't think the legal argument wouldn't exclude you from the furlough.

[00:31:30] Speaker 03:
That would just mean you didn't follow procedures, go back and do the right procedures.

[00:31:35] Speaker 03:
I think a fair common sense reading of this language is a justification for being excluded from the furlough would be something personal to the employee.

[00:31:50] Speaker 03:
The MSPB in the McGiffords's Navy case has said,

[00:31:54] Speaker 03:
The agency does not afford an individual with a meaningful opportunity to respond by merely providing an empty process for presenting his defense.

[00:32:02] Speaker 03:
And that's what happened here.

[00:32:04] Speaker 03:
And just lastly, to address Matthew's versus Eldridge three-part balancing test, the 47-hour taking here in Middly, not as harsh as a determination, is still significant.

[00:32:20] Speaker 03:
It's more than a week's pay to people.

[00:32:22] Speaker 03:
Many people, it's more than a mortgage payment or more than a rent payment.

[00:32:26] Speaker 03:
With respect to the governmental interest here, this case stands in stark contrast to cases like FDIC versus Malin and Gilbert versus Homer.

[00:32:36] Speaker 03:
The government had seven months here to meet the statutory deadline of the budget cuts.

[00:32:44] Speaker 03:
We didn't have the exigencies here, like a bank president who was lying to FDIC.

[00:32:50] Speaker 03:
or a police officer who was indicted on felony drug trafficking charges.

[00:32:56] Speaker 03:
Those aren't the kinds of exigencies we had here.

[00:32:58] Speaker 03:
And lastly, with respect to the governmental or the possibly erroneous deprivation in Malin and FDIC, we had indictments.

[00:33:13] Speaker 03:
We had some documents showing that the

[00:33:17] Speaker 03:
that there's a little likelihood that the decision would be wrong here.

[00:33:21] Speaker 03:
In this case, because the agency has said there are grounds for exception, the employees had to have that opportunity to come forward and express that.

[00:33:30] Speaker 03:
Supposing they had said, well, there is no overlap.

[00:33:35] Speaker 03:
The stern posits that the agency considered structuring

[00:33:46] Speaker 03:
the timing so that there would be overlap of employees on any particular issue.

[00:33:55] Speaker 03:
Did somebody argue that?

[00:33:56] Speaker 03:
That factually there's no overlap, nobody else overlaps me?

[00:34:00] Speaker 03:
Well, I know in the one example that I was presenting before what the employee stated was that

[00:34:06] Speaker 03:
If I'm not here to answer these calls, that there's going to be harm to the public and harm to the agency's mission.

[00:34:14] Speaker 03:
And I can't tell you that there are more facts than that.

[00:34:16] Speaker 03:
In that letter, he didn't say there's nobody else who can do my job.

[00:34:20] Speaker 03:
He didn't specifically, but there may be individuals who would have that information.

[00:34:25] Speaker 03:
And that's the very purpose of having a meaningful reply.

[00:34:28] Speaker 03:
So you can have that colloquy with a decision maker.

[00:34:31] Speaker 03:
So you can get to that information.

[00:34:33] Speaker 03:
We haven't given anything in the record that shows that.

[00:34:36] Speaker 03:
No, but there's nothing in the record either to indicate that this kind of a response wouldn't be one that someone with true discretion to make a decision wouldn't consider.

[00:34:49] Speaker 03:
I see my time has expired.

[00:34:50] Speaker 01:
OK.

[00:34:51] Speaker 01:
Thank you.

[00:34:51] Speaker 01:
Thank you, Mr. Kaplan.

[00:34:52] Speaker 01:
Mr. Stern, the case is taken under submission.