[00:00:00] Speaker 02:
Air Force.

[00:00:46] Speaker 03:
It's quite a radical New York.

[00:00:55] Speaker 03:
I prefer not.

[00:01:20] Speaker 03:
He really appreciates it.

[00:01:22] Speaker 03:
May it please the Court.

[00:01:23] Speaker 03:
My name is Marshall D. White.

[00:01:24] Speaker 03:
I represent Petitioner Sherman Howard.

[00:01:27] Speaker 03:
Mr. Howard, as I just indicated, is here in court today.

[00:01:30] Speaker 03:
This case is one issue presented in this consolidated appeal, is whether Mr. Howard was returned to status quo entity with respect to his back pill war.

[00:01:40] Speaker 03:
Mr. Howard believes that the ultimate question before the court is, why should he be worse off when he is entitled by law to a make-hold remedy upon reversal

[00:01:49] Speaker 03:
of the agency's removal action.

[00:01:54] Speaker 03:
That is ultimately what the issue is.

[00:01:56] Speaker 03:
Consistent with the mandate of the Backpay Act, the court's precedents indicate that the return to the status quo entity includes a backpay award that reflects the compensation that the affected employee would have earned or received if the removal or the adverse action had not occurred.

[00:02:13] Speaker 03:
And in accordance with that back pay act, OPM implementing regulations indicate that that back pay award is offset by the earnings and the compensation that the affected employee would not have received or would not have earned if he had not been removed.

[00:02:31] Speaker 03:
So that is how the make-over remedy is supposed to be established.

[00:02:36] Speaker 03:
This is what you would have gotten if you hadn't gotten removed.

[00:02:39] Speaker 03:
And this is what you would have not received or earned if you had not gotten removed.

[00:02:44] Speaker 02:
So the suit was brought against the Air Force.

[00:02:47] Speaker 02:
And it seems to me that there is a question whether it's not OWCP that would, if you were to prevail, that would actually owe the compensation.

[00:02:57] Speaker 02:
Why didn't you bring the case against OWCP or make that the basis for your claim?

[00:03:05] Speaker 03:
Bring the suit against OWCP?

[00:03:07] Speaker 03:
In other words, I think what you're indicating is why did Mr. Howard file a claim for the compensation he lost because of the agency's removal action with OWCP.

[00:03:16] Speaker 03:
Well, I think we did address that issue in our brief.

[00:03:19] Speaker 03:
That is because, first of all, Mr. Howard would not have had to file a retroactive wage claim with OWCP if he had not gotten removed.

[00:03:28] Speaker 03:
Mr. Howard would not have been subjected to delay and a possible denial of that claim if he had not gotten removed.

[00:03:37] Speaker 03:
because of the agency's removal action.

[00:03:38] Speaker 03:
Mr. Howard would not have had to do that.

[00:03:40] Speaker 03:
And so with that said, in fact, if Mr. Howard had filed that claim and OWCP had approved that claim, the agency would be liable for the compensation paid under that claim.

[00:03:51] Speaker 03:
And that's another issue I think that came up in the government's brief that I want to make sure, is that to any extent, there's a kind of space between the agency, the Air Force being liable for OWCP compensation,

[00:04:06] Speaker 03:
and that compensation being payable by the agency, it's brought on by the agency's removal action.

[00:04:11] Speaker 03:
If the agency doesn't remove Mr. Howard, they remain liable for all the OWCP compensation that he would have received if he had not gotten removed.

[00:04:19] Speaker 03:
Just like they would have remained liable for all the regular faith that he would have gotten if he had not gotten removed.

[00:04:25] Speaker 03:
So going on and filing a claim with OWCP was just another step to delay Mr. Howard's compensation.

[00:04:32] Speaker 03:
The agency was going to be liable for that compensation.

[00:04:34] Speaker 03:
So what if he gets denied?

[00:04:35] Speaker 03:
What does that mean?

[00:04:37] Speaker 02:
Well, if he gets denied... Well, then you bring your suit then.

[00:04:39] Speaker 02:
I'm sorry?

[00:04:40] Speaker 02:
You bring your suit then if he's denied.

[00:04:43] Speaker 03:
Well, I mean, as far as the back pay is concerned,

[00:04:46] Speaker 03:
You know, you're requesting back pay.

[00:04:48] Speaker 03:
This was all supposed to be entitled.

[00:04:50] Speaker 03:
He was supposed to be entitled to a compensation that he would have earned or received if he had not gotten removed.

[00:04:57] Speaker 03:
Mr. Howard was earning four hours a day and receiving four hours OWCP compensation.

[00:05:02] Speaker 02:
But he was getting four hours a day compensation, workers' comp.

[00:05:06] Speaker 02:
He's getting four hours a day regular pay.

[00:05:09] Speaker 02:
When he was put back into the original state prior to the removal,

[00:05:15] Speaker 02:
He was still in that state.

[00:05:17] Speaker 02:
He was getting four hours of compensation.

[00:05:22] Speaker 03:
Respect to your honor, that's a fact.

[00:05:24] Speaker 03:
Mr. Howard was not receiving four hours of WCP compensation once he got reinstated back to his position.

[00:05:29] Speaker 03:
Mr. Howard was only getting four hours of regular pay, which, by the way, he was on administrative leave.

[00:05:34] Speaker 03:
He never was allowed to return back to work.

[00:05:37] Speaker 02:
But that's because when he was put back to work, he was only working the four hours.

[00:05:41] Speaker 03:
Right.

[00:05:42] Speaker 03:
When they removed him, which was three and a half years prior,

[00:05:45] Speaker 03:
when they removed him and then they reinstated him.

[00:05:47] Speaker 02:
What he was missing was the OWCP pay.

[00:05:50] Speaker 03:
What he was missing was compensation for the other four hours.

[00:05:54] Speaker 02:
That was the OWCP.

[00:05:56] Speaker 02:
That's what he was missing.

[00:05:58] Speaker 02:
Why didn't he file the claim then for that?

[00:06:01] Speaker 03:
That's what the agency wanted him to do, Your Honor.

[00:06:04] Speaker 03:
That's exactly what the agency wanted him to do, but Mr. Howard would not have had to file a retroactive claim with OWCP.

[00:06:10] Speaker 03:
They wanted him to go back three and a half years and file a claim with OWCP.

[00:06:15] Speaker 03:
If it gets approved, they have to pay anyway.

[00:06:20] Speaker 03:
They have to pay anyway.

[00:06:21] Speaker 03:
And by the way, that's unreviewable by this court or any other court, whether they deny or approve that compensation.

[00:06:28] Speaker 03:
So why should Mr. Howard go out there with WCP and be subjected to delay and denial at that point in time when the agency is going to be liable for that compensation if it comes back approved?

[00:06:40] Speaker 00:
Do you have a response to the government's citation to a case called

[00:06:44] Speaker 00:
which was in their red brief.

[00:06:48] Speaker 00:
It's a bill in the benefits case, but it's quite clear that we said there that OWCP benefits are not payable by an agency.

[00:06:59] Speaker 03:
That's exactly what I was just indicating a few months ago, Judge Chin, that OWCP compensation benefits, agencies are liable for OWCP compensation benefits, 5 USC 8147B.

[00:07:13] Speaker 03:
The agencies are liable.

[00:07:15] Speaker 03:
The only issue is whether OWCP approves it.

[00:07:19] Speaker 03:
To the extent that there's any space between the agency paying for those benefits and the agency being liable for those benefits and Mr. Hollis' case was brought on by an erroneous personnel action.

[00:07:32] Speaker 03:
Why should Mr. Howard be worse off because of their erroneous purpose?

[00:07:35] Speaker 03:
Why should Mr. Howard have to go do this?

[00:07:37] Speaker 03:
Why should Mr. Howard have to go file a claim for OWCP?

[00:07:40] Speaker 03:
Why should Mr. Howard have to do this?

[00:07:42] Speaker 03:
Mr. Howard was collecting benefits and working, and they erroneously removed it.

[00:07:45] Speaker 03:
Why should he be any worse off in any way?

[00:07:48] Speaker 03:
That's what the back pay act is all about, making Mr. Howard whole.

[00:07:55] Speaker 03:
Mr. Howard is supposed to be made whole.

[00:07:58] Speaker 03:
So here we are, Mr. Howard's back pay award.

[00:08:01] Speaker 03:
He only received four hours of regular pay at his back pay award, but nevertheless, in accordance with OPM's regulations, they offset that four-hour back pay award by his full retirement, which was correct, and by his outside earnings, which was correct.

[00:08:16] Speaker 03:
So that left Mr. Howard totally far sharp.

[00:08:19] Speaker 03:
of the status quo empty, which is what he's supposed to be returned to upon a reversal of the board's removal action.

[00:08:25] Speaker 03:
That's where he's supposed to be.

[00:08:26] Speaker 02:
So when he was reinstated, he was reinstated back into the Air Force.

[00:08:31] Speaker 02:
At that point, the Air Force was given the four hours of regular pay.

[00:08:37] Speaker 02:
The Air Force.

[00:08:37] Speaker 02:
This is prior to the removal, and then after reinstatement, he was getting four hours pay from the Air Force.

[00:08:43] Speaker 02:
Correct.

[00:08:44] Speaker 02:
Prior to removal, he was also getting four hours pay from the

[00:08:49] Speaker 02:
OWCP program, correct?

[00:08:52] Speaker 02:
Correct.

[00:08:52] Speaker 02:
The Office Workman's Comm program.

[00:08:54] Speaker 02:
That's correct.

[00:08:55] Speaker 02:
Okay.

[00:08:55] Speaker 02:
So when he's reinstated, he's reinstated back into the Air Force.

[00:09:00] Speaker 02:
The Air Force starts paying them four dollars, I mean for the four hours, and he's missing.

[00:09:05] Speaker 02:
You know, I'm trying to follow your scenario.

[00:09:07] Speaker 02:
He's still missing the other four hours.

[00:09:09] Speaker 02:
But that other four hours is not paid by the Air Force.

[00:09:13] Speaker 02:
It's paid by the

[00:09:14] Speaker 02:
the workman's comp program.

[00:09:17] Speaker 03:
That's if Mr. Howard wants to file a claim.

[00:09:19] Speaker 03:
Well, why didn't he file a claim?

[00:09:21] Speaker 03:
Well, this is my point, Your Honor.

[00:09:23] Speaker 03:
Mr. Howard did not need to file a claim once the Air Force reinstated him.

[00:09:27] Speaker 03:
Excuse me, once the board ordered him reinstated.

[00:09:29] Speaker 03:
Mr. Howard had an eight-hour position.

[00:09:32] Speaker 03:
The agency just kept him on administrative leave.

[00:09:35] Speaker 03:
They wouldn't allow him to come back to work.

[00:09:37] Speaker 03:
Mr. Howard had an eight-hour job.

[00:09:38] Speaker 02:
If he's not getting paid the four hours for workman's comp,

[00:09:43] Speaker 02:
And you're saying that, well, he was obligated.

[00:09:48] Speaker 02:
He should have.

[00:09:49] Speaker 02:
He was entitled to that pay.

[00:09:52] Speaker 03:
Not after he got reinstated, Your Honor.

[00:09:54] Speaker 03:
He was not obligated to that compensation after he got reinstated.

[00:09:57] Speaker 03:
Mr. Howard indicated, I believe, on page 73 of the appendix, the record, Mr. Howard informed the agency on June 5, 2012, that he was willing and able to go to work.

[00:10:07] Speaker 03:
So at that point in time, Mr. Howard was not involved whatsoever interested in filing OWC.

[00:10:14] Speaker 02:
He wanted to work six hours a day and he would work up to eight, but the medical records didn't support that.

[00:10:19] Speaker 02:
They kept him at that four hours, correct?

[00:10:21] Speaker 03:
No, Your Honor, that is not correct.

[00:10:24] Speaker 03:
This is what happened.

[00:10:25] Speaker 03:
The scenario played itself out like this.

[00:10:28] Speaker 03:
Mr. Howard wanted to go back to work and the agency put him on administrative leave.

[00:10:33] Speaker 03:
and he wants to go back to work for eight hours a day.

[00:10:36] Speaker 03:
They did not tell him that he was only getting paid for four hours a day while he was on administrative leave.

[00:10:40] Speaker 03:
They didn't tell him he needed to go get medical evidence so he could get paid eight hours a day.

[00:10:44] Speaker 03:
They didn't tell him anything.

[00:10:46] Speaker 03:
And contrary to any kind of assertion in the government's brief that Mr. Howard was on notice, a constructive notice, that he needed to provide medical evidence to the agency at any time before they told him on May 31st, more than a month after the boy reversed the removal action, that's absurd.

[00:11:03] Speaker 03:
Mr. Howard wasn't collecting those WCP benefits.

[00:11:06] Speaker 03:
Mr. Howard wanted to go back to work.

[00:11:07] Speaker 03:
And this goes back to the issue about his permanent medical restriction.

[00:11:10] Speaker 03:
Mr. Howard didn't have a permanent medical restriction.

[00:11:12] Speaker 03:
And there's no evidence in the record to support that.

[00:11:15] Speaker 03:
And that's the linchpin of the board's finding, is that he had a permanent medical restriction, which he did not have.

[00:11:23] Speaker 00:
What about this letter from OWCP on November 21, 2008, where ultimately OWCP concludes that he reached his maximum medical improvement.

[00:11:37] Speaker 00:
So therefore, he's going to be getting 50% workers' comp.

[00:11:42] Speaker 03:
The most notable thing about that document, Your Honor, is that that document was obviously written after Mr. Howard got removed.

[00:11:52] Speaker 03:
Mr. Howard wasn't collecting OWCP compensation.

[00:11:54] Speaker 03:
Mr. Howard did not collect OWCP compensation under that wage earning capacity determination.

[00:12:00] Speaker 03:
And frankly, that wage earning capacity determination is erroneous.

[00:12:04] Speaker 03:
You don't want it to be erroneous because Mr. Howard was not permanently reassigned to a limited duty position.

[00:12:08] Speaker 03:
And that's the basis for making a wage earning capacity determination.

[00:12:12] Speaker 03:
And Mr. Howard was not re-employed in the four-hour position in August of 2007.

[00:12:16] Speaker 03:
The administrative judge knew that from an initial decision in the underlying removal action.

[00:12:21] Speaker 03:
Mr. Howard came back to work in February 2007.

[00:12:24] Speaker 03:
He didn't come back to work in August 2007.

[00:12:27] Speaker 03:
And the agency knew that.

[00:12:28] Speaker 03:
The SF50s in the record indicated that Mr. Howard was removed from a full-time position.

[00:12:34] Speaker 03:
And Mr. Howard was reinstated to a full-time position.

[00:12:37] Speaker 03:
The wage earning capacity determination that you just mentioned, Your Honor, is erroneous.

[00:12:41] Speaker 03:
It's erroneous.

[00:12:43] Speaker 03:
It is not entitled whatsoever to any evidentiary value in supporting the board's decisions.

[00:12:48] Speaker 03:
Mr. Howard was not permanently reassigned to a limited duty position, because otherwise, that's what his back pay would be about, the limited duty position.

[00:12:56] Speaker 03:
It wouldn't be about his full-time position.

[00:13:00] Speaker 03:
And so Mr. Howard, that's the thing he wants to impart upon the court is that, why is he worse off?

[00:13:08] Speaker 03:
Why is he worse off?

[00:13:10] Speaker 03:
And I think your question is a very valid one, and I think that's what we address, Your Honor, in our PFE.

[00:13:15] Speaker 03:
Why should Mr. Howard, in our petition for enforcement, why should Mr. Howard go out to OWCP and make a claim when, in fact, if the claim is upheld, you have to pay?

[00:13:27] Speaker 03:
Now, what if the claim fails?

[00:13:28] Speaker 03:
What does that leave Mr. Howard?

[00:13:30] Speaker 03:
What does that leave, Mr. Howard?

[00:13:31] Speaker 03:
And by the way, when you make a claim for OWCP, you're basically admitting that you're not really willing and able to work.

[00:13:37] Speaker 02:
So, Counselor, you were going to reserve three minutes of your time?

[00:13:40] Speaker 02:
I was.

[00:13:41] Speaker 02:
Okay.

[00:13:41] Speaker 02:
You're a little bit under that, but I'll give you the three minutes.

[00:13:44] Speaker 03:
Thank you very much, Your Honor.

[00:13:45] Speaker 03:
That was another issue.

[00:13:47] Speaker 03:
Thank you.

[00:13:52] Speaker 02:
Counselor Elie?

[00:13:54] Speaker 02:
Elie.

[00:13:55] Speaker ?:
Elie.

[00:14:01] Speaker 01:
The MSPB's determination that Mr. Howard was returned to the status quo ante is supported by substantial evidence in the record.

[00:14:09] Speaker 01:
Specifically, it's undisputed that at the time of his removal, Mr. Howard was working for only four hours per day and receiving workers' compensation for the remainder.

[00:14:18] Speaker 01:
It's also undisputed that approximately a day after his removal, the Department of Labor had determined that Mr. Howard's wage earning capacity was 50% and that he'd reached maximum medical improvement.

[00:14:29] Speaker 01:
It's also undisputed that Mr. Howard did not present medical evidence regarding his ability to work more than four hours.

[00:14:35] Speaker 02:
The last finding of the 50% disability, was that after his termination?

[00:14:40] Speaker 02:
Like a day after?

[00:14:42] Speaker 01:
It was.

[00:14:44] Speaker 02:
What effect does that have when we're looking at a period going back or at the day he was terminated?

[00:14:53] Speaker 02:
this ruling hadn't come out yet.

[00:14:55] Speaker 01:
But it's evidence of his abilities during the relevant back pay period, the period for which he's seeking back pay.

[00:15:01] Speaker 01:
And significantly, Mr. Howard never presented any medical evidence undercutting this Department of Labor determination, which reflected... So you're saying he's looking for 100% back pay

[00:15:14] Speaker 02:
But he was really entitled, if anything, to 40 or 50%.

[00:15:17] Speaker 02:
Yes, sir.

[00:15:19] Speaker 01:
That's what the evidence showed, Your Honor.

[00:15:20] Speaker 01:
And Mr. Howard had a full and fair opportunity to present medical evidence.

[00:15:24] Speaker 01:
To the contrary, he believed he was ready, willing, and able to work.

[00:15:27] Speaker 00:
Can you explain the date of the events a little bit?

[00:15:30] Speaker 00:
Should we think of it as almost two ships passing the night, two parts of the government doing things in parallel, where perhaps the Department of Labor didn't understand or even know yet

[00:15:42] Speaker 00:
the Air Force had removed this particular employee while it was working on trying to figure out to what extent the employee was deserving the workers' comp?

[00:15:53] Speaker 01:
Is that the way to look at it?

[00:15:54] Speaker 01:
Well, I think it's likely that the Department of Labor didn't know, but that would be irrelevant because the question is really whether this individual

[00:16:02] Speaker 01:
regardless of where he works, has a decreased wage earning capacity.

[00:16:06] Speaker 01:
And that's what the determination, that was the determination.

[00:16:09] Speaker 00:
Do you understand why it's relevant for us?

[00:16:11] Speaker 00:
Because it appears just from the cold record that the Department of Labor issued this after the person was no longer an employee.

[00:16:19] Speaker 01:
That's true.

[00:16:20] Speaker 01:
And I don't know, I have no evidence in the record to suggest why that's the case.

[00:16:24] Speaker 01:
The way that this worked out was that

[00:16:26] Speaker 01:
Mr. Howard was injured in November 2006, did return in February 2007.

[00:16:33] Speaker 01:
By the time of his removal, which is, of course, months later, he's still having some trouble in the job and is working sort of at a 50% four-hour-a-day capacity.

[00:16:42] Speaker 01:
And to get OWCP benefits during that time frame, he is corresponding with the Department of Labor, providing on a kind of constant, every couple weeks basis, evidence of his medical condition.

[00:16:54] Speaker 01:
The wage earning capacity is sort of the next step in that process when the employee effectively receives a ruling by the Department of Labor that he is approximately 50% disabled.

[00:17:08] Speaker 01:
And that's a permanent determination, so he doesn't have to keep running back to the medical.

[00:17:13] Speaker 02:
When he was reinstated, was there a reliance on that determination?

[00:17:18] Speaker 02:
Yes.

[00:17:19] Speaker 02:
So that goes back to the question.

[00:17:21] Speaker 02:
How can there be a reliance on this determination?

[00:17:24] Speaker 02:
if it was issued after.

[00:17:26] Speaker 02:
Even if it's one day, it was issued after he was terminated, he's ordered to be reinstated and put back whole.

[00:17:34] Speaker 02:
Back where he was, and he was getting four hours regular pay, four hours comp pay, and now he's only getting four hours pay, partly in base because of this determination.

[00:17:46] Speaker 01:
Well, the status quo ante

[00:17:48] Speaker 01:
was that the agency was paying four hours out of its own pocket for the work that Mr. Howard was doing.

[00:17:54] Speaker 01:
And actually, when you talk about returning to an employee to the status quo ante under the Back Pay Act, and specifically, there are obviously broad remedies that are available to the employer under the Back Pay Act, but when you're talking specifically about the pay, there is a regulation that precludes, since the agency may not include in the back pay calculation, any period during which an employee was not ready, willing, and able to perform his duties due to an incapacitating

[00:18:18] Speaker 01:
illness or injury.

[00:18:19] Speaker 01:
And in this case, the Department of Labor determination effectively indicates that there is a... That made sense if he'd have been terminated during a period of time when that determination was in effect.

[00:18:31] Speaker 02:
But he was terminated before that 50% disability determination was issued, even though it came out a day after.

[00:18:40] Speaker 02:
So... But the... I'm sorry, I know you're...

[00:18:45] Speaker 02:
Your argument or your argument would give an agency free license to issue a determination after someone's been terminated and affect their pay and really not allow them to respond to that adequately.

[00:19:02] Speaker 01:
No, Your Honor.

[00:19:03] Speaker 01:
The reality is that this, I think that the fact that this was issued even one day after the termination places the Department of Labor determination squarely within the period

[00:19:14] Speaker 01:
for which Mr. Howard is seeking compensation.

[00:19:18] Speaker 01:
So it is evidence in the record as to his ability during the period for which he is seeking the back pay.

[00:19:23] Speaker 01:
And that is also supported by the fact that immediately, this decision of 50% disabilities is consistent with other evidence of the status quo ante, which was that he in fact was working about this.

[00:19:38] Speaker 02:
Does any of the comp pay come out of the Air Force's pocket?

[00:19:44] Speaker 01:
The plaintiff is suggesting that this is a one-to-one reimbursement.

[00:19:47] Speaker 01:
In fact, Congress's scheme basically indicates that the agency sort of, in section 8147, the agency reimburses a fund based on what's paid out for workers' comps.

[00:19:59] Speaker 01:
So this isn't really, I don't think it's coming out of the Air Force's pocket.

[00:20:03] Speaker 02:
But in practice, the Air Force is ultimately paying the compensation that's going back to Mr. Howard?

[00:20:10] Speaker 01:
In some form or fashion, yes.

[00:20:13] Speaker 01:
The agency, as a matter of regulation, is precluded from paying that directly as part of a back pay calculation.

[00:20:19] Speaker 01:
That is from 5 CFR 550.805C1.

[00:20:26] Speaker 01:
The agency is precluded as a matter of regulation for paying the employee directly for periods where the employee is incapacitated.

[00:20:33] Speaker 00:
Is that what we said in Puschel or Puechel?

[00:20:36] Speaker 01:
Yes, Your Honor.

[00:20:38] Speaker 01:
You said that the duty to pay disability benefits is OWCPs, not the employing agencies.

[00:20:49] Speaker 01:
And consistent with that, there's a long-standing board precedent, Lever versus Department of Agriculture, which explains in a footnote, footnote six, that workers' compensation constitutes a non-duty, non-pay status that precludes an employee from receiving regular pay during the time where they're getting workers' comps.

[00:21:06] Speaker 00:
Just as I understand the facts correctly, for the year or two before Mr. Howard was removed,

[00:21:15] Speaker 00:
He was on four hour pay status, four hour a day pay status?

[00:21:21] Speaker 01:
I don't know the exact time.

[00:21:23] Speaker 01:
It's not clear from the record what exact time period he was on the four hour.

[00:21:29] Speaker 01:
But he was, my understanding is that he was general, he came back to work in February 2007, was struggling, working a reduced schedule, and eventually had applied and received workers comp at the four hour level.

[00:21:41] Speaker 01:
And that was where he was at the time of his removal.

[00:21:44] Speaker 01:
And he applied, he obviously had pursued the matter seeking a 50% wage earning.

[00:21:51] Speaker 00:
I guess what I'm trying to figure out is did he ever get any workers comp before that November 21, 2008 ruling by OWCP?

[00:22:03] Speaker 01:
Yes, he did.

[00:22:04] Speaker 00:
So he was getting workers comp and then so what is the significance of the November 21 letter?

[00:22:09] Speaker 00:
Is it just sort of a confirmation?

[00:22:11] Speaker 00:
that everything that OWCP had been doing up to that point was appropriate and accurate?

[00:22:18] Speaker 01:
Yes, Your Honor.

[00:22:19] Speaker 01:
What you'll note is if you look closely at the WEC determination on page 198, 197 of the appendix, one of the things that occurs is, particularly if we were to look at page 198 as an example in the last paragraph,

[00:22:38] Speaker 01:
the Department of Labor writes, you are earning about $700.

[00:22:42] Speaker 01:
On the date of injury, you were of grade YA 511-2.

[00:22:46] Speaker 01:
The current pay rate for that same grade in steps is approximately $1,600.

[00:22:51] Speaker 01:
That's an acknowledgment that he's working at about 50% based on preceding events.

[00:22:57] Speaker 00:
And that he's also getting workers comps during the prior year?

[00:23:03] Speaker 01:
That is not explicit in this WEC determination.

[00:23:08] Speaker 01:
It's a point that the petitioner has openly conceded in his briefs, specifically his brief at page 23, his opening brief, he indicates at the time of his removal, Mr. Howard was working only four hours and receiving workers' compensation for the removal.

[00:23:22] Speaker 01:
So that's not a dispute of fact.

[00:23:24] Speaker 00:
So let's say that Mr. Howard does file a claim at OWCP this afternoon.

[00:23:30] Speaker 00:
Says, here, I have this valid order undoing the removal that occurred in 2008

[00:23:38] Speaker 00:
And now I want to collect all those workers comp benefits that I am entitled to over the four year gap in time.

[00:23:50] Speaker 00:
And let's say workers comp OWCP responds and says, well, we don't have enough proof here in your record that you really were at some 50% disability.

[00:24:03] Speaker 00:
during that entire time.

[00:24:05] Speaker 00:
And so unless you can prove to us that you were really still, you know, permanently disabled to that level during that four years, we're not going to give you any workers' comp for that time.

[00:24:19] Speaker 00:
Then at that point in time, would Mr. Howard be able to come back to the Air Force and say, all right, Air Force, you wanted me to do this through OWCP.

[00:24:28] Speaker 00:
OWCP doesn't want to give me the money.

[00:24:31] Speaker 00:
They're saying that

[00:24:33] Speaker 00:
unless I can prove otherwise, uh, Mr. Howard was fully functional.

[00:24:38] Speaker 00:
And so therefore now it's on you to make me whole Air Force.

[00:24:42] Speaker 00:
What would the Air Force do under those circumstances?

[00:24:45] Speaker 01:
Um, well, the Air Force, um, can't pick, well, I think that it becomes difficult because it becomes difficult because at this point they are probably, are you saying Mr. Howard falls into some of the Kuna where he can't get made whole from anybody?

[00:25:00] Speaker 00:
He's got nowhere to turn.

[00:25:01] Speaker 01:
That very well may be the case, and I realize that that's a very unsatisfying answer.

[00:25:06] Speaker 01:
However, the important thing is that an employee is entitled to as much pay or as much relief as the evidence shows that he's entitled to.

[00:25:16] Speaker 01:
And so when this employee came before the Air Force and was asked to, but failed to

[00:25:23] Speaker 01:
produced medical evidence substantiating that he was, in fact, ready, willing, and able to work during the back pay period.

[00:25:29] Speaker 01:
We know he did it in, when he did it for 2012 and forward, the agency went ahead and paid him.

[00:25:33] Speaker 01:
But he didn't do it for the back pay period.

[00:25:37] Speaker 01:
He wasn't, at that point, he failed to establish his entitlement to back pay because the agency, as a regulatory matter, precluded from paying for periods where

[00:25:47] Speaker 01:
The employee is not ready, willing and able to work.

[00:25:50] Speaker 01:
And the only evidence in the record was that he was in fact disabled.

[00:25:56] Speaker 01:
Now, I mean, prior to filing this lawsuit, could Mr. Howard have gone and sought disability benefits from OWCP and gotten a denial and taken that back to the agency and say, here, I put this question to OWCP, they say I'm just fine.

[00:26:12] Speaker 01:
I see no reason why he couldn't present the OWCP's decision on his claim as evidence that he was, in fact, disabled.

[00:26:21] Speaker 01:
Can you do it now?

[00:26:23] Speaker 01:
But Your Honor, I mean, at this point, he's litigated this matter.

[00:26:26] Speaker 01:
At some point, Grace Judicata has to take over.

[00:26:30] Speaker 00:
Grace Judicata on what?

[00:26:31] Speaker 01:
Well, I mean, presumably he would get a decision from the court or the board resolving this issue because he's brought it up on this specific set of facts based on the record he created.

[00:26:42] Speaker 01:
And one of the things he is asking to do, Your Honor, is come back for a second bite of the apple and to come back and maybe put in more medical evidence or something to support the claim that he was ready, willing, and able to work.

[00:26:53] Speaker 01:
But the reality is the record that he presented to the agency and then brought up to the board was one that was devoid of such proof.

[00:27:01] Speaker 01:
And there's certainly no reason that someone in these circumstances should get a second bite in the apple when he's already had a fair opportunity to make his claim to the agency.

[00:27:11] Speaker 00:
All I see here is the government saying, Mr. Howard, you need to go to OWCP.

[00:27:17] Speaker 00:
That's it.

[00:27:18] Speaker 00:
That would be what, if we were to affirm, would be affirming.

[00:27:25] Speaker 00:
Not that he was perfectly able to work or he was not able to work 50%.

[00:27:31] Speaker 00:
And then it would be up to OWCP in a claim that Mr. Howard would subsequently file to determine whether or not they needed to

[00:27:40] Speaker 00:
honor this requirement to give them the benefit.

[00:27:46] Speaker 01:
Well, actually, there are two things that the government did say to Mr. Howard, which are both equally correct.

[00:27:51] Speaker 01:
When Mr. Howard indicated to the Air Force, I'm ready, willing, and able to work, the Air Force said, OK, give us some medical evidence to substantiate that, and we'll pay you eight hours.

[00:28:01] Speaker 01:
And we know that when he did provide that medical evidence for the period of 2012-14, the agency did pay him.

[00:28:06] Speaker 01:
The agency also said, effectively,

[00:28:09] Speaker 01:
And it is in the record at page 100 to 101.

[00:28:18] Speaker 01:
If you say you're disabled, you've got to go to OWCP for this extra four hours.

[00:28:23] Speaker 01:
So the ball is really in Mr. Howard's court.

[00:28:27] Speaker 02:
At this point, I mean, I don't understand why restituto cotto would apply.

[00:28:31] Speaker 02:
We're not talking about the same parties.

[00:28:34] Speaker 02:
You essentially have already argued that the OWCP and the Air Force are separate.

[00:28:40] Speaker 01:
I apologize.

[00:28:42] Speaker 01:
What I meant to say was, at this point, Mr. Howard would have fully litigated the question of his treatment by the Air Force.

[00:28:52] Speaker 02:
So he could go back to and file for workman's comp.

[00:28:55] Speaker 01:
He certainly could go to OWCP.

[00:28:57] Speaker 01:
I apologize.

[00:28:58] Speaker 01:
I didn't mean to suggest otherwise.

[00:29:01] Speaker 01:
Your honor, I see I'm at the end of my time.

[00:29:03] Speaker 01:
If you don't have any, do you have additional questions?

[00:29:07] Speaker 02:
No questions.

[00:29:07] Speaker 02:
Thank you very much.

[00:29:08] Speaker 01:
Thank you very much.

[00:29:12] Speaker 01:
We ask that the board just affirm the decision.

[00:29:16] Speaker 02:
Thank you.

[00:29:18] Speaker 02:
Mr. White, you went over a little bit over your time, but I'm going to give you three minutes.

[00:29:24] Speaker 03:
I appreciate that very much.

[00:29:25] Speaker 03:
It's two issues I really want to make sure that I lead the court with.

[00:29:30] Speaker 03:
And that is, to your point, Judge Chen, Mr. Howard going out to OWCP and making a claim is just a runaround.

[00:29:37] Speaker 03:
It's just a runaround.

[00:29:38] Speaker 03:
If OWCP denies that claim, Mr. Howard has lost.

[00:29:42] Speaker 03:
He's done.

[00:29:43] Speaker 03:
The Air Force has already taken the position that they're not going to pay him.

[00:29:46] Speaker 03:
If he goes out to OWCP, which is what the Air Force is telling him to do, and if OWCP denies him, he's done.

[00:29:53] Speaker 03:
If OWCP approves him, the Air Force pays.

[00:29:56] Speaker 03:
That is a statute.

[00:29:58] Speaker 03:
That is a statute, 8147B, 5 USC 8147B.

[00:30:03] Speaker 02:
I'm not sure that we could order the OWCP to pay here.

[00:30:10] Speaker 02:
And they're not before us.

[00:30:15] Speaker 02:
And also, you haven't filed a claim up to that point, so I'm not sure that that's

[00:30:21] Speaker 02:
Totally accurate.

[00:30:23] Speaker 03:
I understand what you're saying, Your Honor.

[00:30:24] Speaker 03:
I don't believe you can tell OWCP, but you can order the Air Force to pay that compensation that they would be liable for.

[00:30:30] Speaker 03:
That is the key.

[00:30:31] Speaker 02:
I don't think we could order them to pay the compensation that OWCP owes or is obligated to pay.

[00:30:39] Speaker 02:
They're not a party here.

[00:30:40] Speaker 03:
And, okay.

[00:30:43] Speaker 03:
Well, I understand what you're saying.

[00:30:45] Speaker 03:
They're not a party in this matter, but the agency would be liable.

[00:30:49] Speaker 03:
I mean, it's just a runaround.

[00:30:51] Speaker 02:
And then another aspect I want to hear that is, under Pecone versus... Even if you'd have brought this issue properly before us, I think our response would be, you've got to go file a claim first before you can bring us any cause of action that would order us to pay, to order OWCP to make a payment.

[00:31:10] Speaker 02:
And you haven't done that.

[00:31:12] Speaker 02:
I don't fully understand or agree with your argument that it's a runaround.

[00:31:18] Speaker 02:
You could have filed before OWCP.

[00:31:20] Speaker 02:
It's an open-ended question.

[00:31:22] Speaker 03:
You don't know what they would answer.

[00:31:24] Speaker 03:
Right, but this is Mr. Howard's position, Your Honor.

[00:31:28] Speaker 03:
First of all, with respect to the evidence reissue, it's the agency's burden.

[00:31:32] Speaker 03:
A respondent has tried to flip this burden.

[00:31:34] Speaker 03:
It's the agency's burden to establish that Mr. Howard was not ready.

[00:31:37] Speaker 02:
No, you have a burden to show.

[00:31:39] Speaker 02:
Once they issue that notice of 50%, then it's up to you to show that

[00:31:46] Speaker 02:
that determination is incorrect or that you're entitled to more than the 50% back pay?

[00:31:50] Speaker 02:
Well, first of all, Mr. Howard did not collect benefits under that determination.

[00:31:55] Speaker 02:
Talk about the back pay.

[00:31:56] Speaker 02:
And you didn't submit any evidence with respect to rebunding the issue of back pay.

[00:32:01] Speaker 03:
Your Honor, Mr. Howard responded in certain... Mr. Howard would not have lost any benefits whatsoever.

[00:32:08] Speaker 03:
If Mr. Howard goes out and files a verdict, that's the Pochelle case itself.

[00:32:11] Speaker 03:
That petitioner never got those benefits 20 years after.

[00:32:16] Speaker 03:
If Mr. Howard goes out and files an OWCP compensation claim, he may never get those benefits.

[00:32:22] Speaker 03:
Your Honor, we respectfully ask the court to reverse the decision of the board because it's contrary to the Backpay Act.

[00:32:31] Speaker 03:
Mr. Howard has not been made whole.

[00:32:33] Speaker 03:
Mr. Howard would not have incurred any loss in compensation if he had not gotten removed.

[00:32:38] Speaker 03:
Councilor, you're out of time.

[00:32:39] Speaker 03:
Thank you very much Ron, I appreciate it.