[00:00:40] Speaker 01:
Okay, the next case is number 14, 31-63.

[00:00:45] Speaker 01:
Kevin Lacy against the Department of Veterans Affairs.

[00:00:49] Speaker 04:
Mr. Gallardo.

[00:00:50] Speaker 04:
Good morning, Your Honor.

[00:00:50] Speaker 04:
Thank you.

[00:00:51] Speaker 04:
May it please the Court.

[00:00:53] Speaker 04:
Mr. Lacy has challenged not the finding of the arbitrator, which was that he was denied an opportunity to respond to material used against him.

[00:01:05] Speaker 04:
Mr. Lacy says that having found that to be a fact,

[00:01:09] Speaker 04:
The arbitrator should have, as this court instructed in Young, ordered a new constitutionally correct procedure.

[00:01:19] Speaker 03:
Could I ask a point of clarification on that?

[00:01:23] Speaker 03:
Yes, sir.

[00:01:24] Speaker 03:
I was curious, I know that your colleague who, Mr. Helowitz is no longer, he's got it tried this case?

[00:01:33] Speaker 03:
That's correct, Your Honor.

[00:01:34] Speaker 03:
In the record, we have a document which was the Douglas Factor analysis, which is at page A45, I believe, in the record.

[00:01:50] Speaker 04:
I believe that's correct.

[00:01:53] Speaker 03:
And we also have in A49 in the record, the communication to your client about the charges, correct?

[00:02:05] Speaker 03:
Correct.

[00:02:06] Speaker 03:
And on page A49 in that, paragraph 5, it says, the evidence on which this notice

[00:02:13] Speaker 03:
proposed action is based, is located at so-and-so, and if you want to come look at it, it's available.

[00:02:20] Speaker 03:
Was the Douglas Factor analysis included in that evidence?

[00:02:27] Speaker 03:
The government says it was.

[00:02:28] Speaker 04:
Precisely the question, Your Honor.

[00:02:30] Speaker 03:
In the agent... The question yes or no answer?

[00:02:34] Speaker 04:
I think the answer is no, and I'll tell you why, and I was going to address this.

[00:02:39] Speaker 04:
The evidence that the

[00:02:42] Speaker 04:
the department submits in its brief is the testimony of the proposing official when she's asked the question whether she performed the Douglas Factors, the Douglas Factor analysis before or after she decided to impose a suspension.

[00:02:58] Speaker 04:
She said, I did it before, so I could, she says there's some ambiguity in her testimony.

[00:03:06] Speaker 04:
She mumbles mm-hmm, which could be mm-hmm or mm-hmm, affirmative.

[00:03:12] Speaker 04:
She says before, but what's not in the record, and I think this is why there's substantial evidence to support the arbitrator's finding, which cannot be challenged here.

[00:03:21] Speaker 04:
There's no cross appeal.

[00:03:24] Speaker 04:
But I think there's substantial evidence to support the arbitrator's finding that Mr. Lacey was deprived of the opportunity to review and respond to that because the only evidence in the file is the document that you referred to.

[00:03:38] Speaker 04:
which does not bear a date, except when the deciding official signs off on it.

[00:03:45] Speaker 04:
And that date is August the 11th.

[00:03:49] Speaker 04:
The time for Mr. Lacey to respond expired on the 10th.

[00:03:56] Speaker 04:
There's no evidence that that document, and I think your question is precisely the question in this case, there's no evidence that that document was put into the file

[00:04:06] Speaker 04:
at any particular time and there's every reason to believe it wasn't put into the file until the deciding official signed off on it.

[00:04:14] Speaker 04:
In any event, the arbitrator made a factual finding and that factual finding was that Mr. Lacey was deprived

[00:04:22] Speaker 04:
I'll notice an opportunity to respond to precisely that.

[00:04:26] Speaker 03:
They made three findings.

[00:04:28] Speaker 03:
Made a finding that wasn't disclosed, made a finding that it wasn't shared with, meaning actually given to, and then made the finding that it wasn't appropriately presented to.

[00:04:42] Speaker 03:
What does that mean?

[00:04:44] Speaker 04:
Well, I think those are more subtle questions, and I really don't know that this is... See, I'm saying, yeah, I mean, there's some confusion here.

[00:04:51] Speaker 04:
Well, I think what the arbitrator is saying, and I don't know if the court has to get to this issue, is that it's not sufficient to simply say in a proposal, if you want to know more, go get it.

[00:05:02] Speaker 03:
that it's not efficient if all that we have a case says it well i'm i'm saying i don't think we have that it wasn't part of my argument here wouldn't you agree that if indeed Mr. Lacey that the statement that was his challenge which is in the proposal in the proposal in the Douglas Factor analysis if that was made available

[00:05:28] Speaker 03:
then there wouldn't be a problem under an expert in communication.

[00:05:32] Speaker 03:
Well, if they had said to him, yes, here it is, then... No, if they say, here is the evidence against you, you want to go look at it, we've got a previous case that says making that available undermines the claim to an expert.

[00:05:48] Speaker 04:
I now understand what you're asking.

[00:05:49] Speaker 04:
If in fact the evidence was that it was in the file, and that he was given the opportunity to review the file... Well, he was given the opportunity.

[00:05:57] Speaker 04:
He was given the opportunity, but there's no evidence.

[00:06:00] Speaker 04:
The arbitrator apparently found that it was not in the file because he concluded Mr. Lacey did not have the opportunity to see it and to respond to it.

[00:06:11] Speaker 03:
We didn't exactly say it.

[00:06:13] Speaker 03:
The arbitrator didn't use those words.

[00:06:15] Speaker 04:
He didn't use those words.

[00:06:17] Speaker 03:
We have to be very careful what we're saying here.

[00:06:19] Speaker 04:
Sure, but the implication can't be otherwise.

[00:06:21] Speaker 04:
and it can't be other, the absence of evidence tells you as much about what really happened as the presence of evidence.

[00:06:27] Speaker 04:
I think that's axiomatic.

[00:06:28] Speaker 04:
I think when you look at the government or the department's primary argument that the proposing... Typically that means there's a presumption of regularity that applies here.

[00:06:38] Speaker 03:
Typically don't, the evidence includes everything that goes into the charges, including the Douglas factory now.

[00:06:45] Speaker 04:
Except that we have contrary evidence in this case.

[00:06:47] Speaker 04:
We have an undated document

[00:06:49] Speaker 04:
We have evidence that doesn't establish there's no effort by the department to say that it was there.

[00:06:56] Speaker 04:
That's clearly the challenge.

[00:06:58] Speaker 04:
They don't refute it.

[00:07:00] Speaker 04:
And then in their brief, they cite a piece of testimony that certainly does not compel the conclusion, doesn't even create the inference that the document was put in the file.

[00:07:11] Speaker 04:
It's a totally separate matter.

[00:07:13] Speaker 04:
When did you consider it?

[00:07:14] Speaker 04:
I considered it before I made the decision to suspend it all.

[00:07:18] Speaker 03:
So I think that we're... Can I ask another question just about processing?

[00:07:22] Speaker 03:
If you prevail here, your client was given a suspension of a reduced period from 30 days to 2021, something like that.

[00:07:30] Speaker 04:
Right, and there's some ambiguity which way it was 20 or 21.

[00:07:32] Speaker 03:
Has the client already served that suspension?

[00:07:34] Speaker 04:
Yes, indeed he has.

[00:07:36] Speaker 03:
So that suspension is served.

[00:07:37] Speaker 03:
So if it goes back, the agency is free to start this case over again.

[00:07:41] Speaker 04:
They would be free to start it over again if they chose to do so.

[00:07:44] Speaker 03:
As the deciding official said on the record, in the deciding official's opinion, your client was given some leniency.

[00:07:51] Speaker 03:
Removal could have been charged here.

[00:07:54] Speaker 03:
That's what the record shows.

[00:07:56] Speaker 04:
Well, I suppose it could have been charged.

[00:07:58] Speaker 03:
I mean, it would face the same... But that's exactly the word.

[00:08:01] Speaker 03:
So on remand, your client is exposed.

[00:08:03] Speaker 03:
He said they could have gone for removal.

[00:08:06] Speaker 03:
That's what the deciding officials said.

[00:08:08] Speaker 03:
So your client can be exposed to a removal procedure.

[00:08:11] Speaker 04:
You mean they could up the ante if he gets a new trial?

[00:08:14] Speaker 04:
If you go to De Novo, you risk the whole thing?

[00:08:16] Speaker 03:
I'm not... I'm not... I mean, that's... We're sending it back because of a due process violation and the cure for that is a new proceeding.

[00:08:26] Speaker 03:
I think what... And the scene immediately, the agency could say, well, we're going to cancel that proceeding, we're going to review the evidence, and we're going to give you access to everything, including that one sentence in the Douglas Vacker report that you're complaining about, and we're going to remove you.

[00:08:39] Speaker 04:
Well, I suppose that's a risk that Mr. Lacey has to decide if he wants to take an impressive appeal.

[00:08:44] Speaker 04:
He's taken that risk.

[00:08:46] Speaker 04:
But I think I'd make two quick comments.

[00:08:49] Speaker 04:
I don't know that they're this positive on the legal issues.

[00:08:52] Speaker 04:
Number one, I know of a case where a very dramatic case that went to this court was settled, actually.

[00:08:59] Speaker 04:
And the agency could have certainly re-noticed and given the employee a new procedure.

[00:09:06] Speaker 04:
They did not.

[00:09:07] Speaker 04:
They did not.

[00:09:08] Speaker 04:
So that's a choice of the agency that they have to make, as well as the choice that the employee has to make.

[00:09:14] Speaker 04:
But the other thing is this.

[00:09:16] Speaker 04:
I think the agency would be hard pressed.

[00:09:17] Speaker 03:
If the agency loses here, they lose not only on the merits of the appeal, but they're going to have an age of fee they're going to lose on, right?

[00:09:25] Speaker 03:
I'm sorry.

[00:09:25] Speaker 03:
I mean, isn't recovery of your fee a slam dunk?

[00:09:30] Speaker 03:
If we get the back pay.

[00:09:31] Speaker 04:
I think so.

[00:09:32] Speaker 04:
If Mr. Lacey's entitled to back pay, we're entitled to fees under the Back Pay Act if we meet the other criteria, which I think we do.

[00:09:40] Speaker 04:
But the other comment I want to make is this.

[00:09:45] Speaker 03:
i've lost my point i'm sorry uh... well i'm not going to go on and i think that it would seem to me that if indeed there's an expert communication problem here the chips fall in your favor as we just described that's the way i saw the case

[00:10:01] Speaker 03:
But so the question that I had hinged on right away was who's going to resolve this disagreement as to whether or not Mr. Lacey had access to the forbidden document.

[00:10:11] Speaker 04:
I think in the first instance it's the arbitrators already decided that and there's substantial evidence to support his conclusion.

[00:10:18] Speaker 04:
As I mentioned, an undated document then dated after the time has expired

[00:10:22] Speaker 04:
an absence of evidence that it was in the... that it was ever in the file, and then a response... So it was dated after?

[00:10:31] Speaker 03:
Yes, Your Honor.

[00:10:31] Speaker 03:
How do we know when it was dated?

[00:10:33] Speaker 04:
If you look, the document itself says on the bottom, let me just get it for you.

[00:10:40] Speaker 04:
Thank you.

[00:10:41] Speaker 03:
A... A-40... Uh... In the, yeah, in the appellants' brief.

[00:10:51] Speaker 03:
Seven...

[00:10:52] Speaker 03:
When your client declined the Douglas Factor analysis, 817, 2011 was the date.

[00:11:03] Speaker 04:
Yeah, I read it twice.

[00:11:04] Speaker 04:
By the way, it's A45 and A46.

[00:11:06] Speaker 04:
On A46... Where do you see a date?

[00:11:10] Speaker 04:
I see a date on the very... It says Sherry L. Early, who's the proposing official, her typewritten document is undated.

[00:11:18] Speaker 04:
That's the argument I was making.

[00:11:20] Speaker 04:
And then it's signed off by Dennis Smith, who's the CEO of the health system.

[00:11:24] Speaker 04:
I read that first as 817, but I think it's 811.

[00:11:27] Speaker 04:
I think that's the only fair reading.

[00:11:29] Speaker 04:
In any event, it's after August the 10th, which is... He's been decided and official.

[00:11:33] Speaker 04:
Correct.

[00:11:34] Speaker 03:
Well, it has to have been, he has to have dated it after it was prepared.

[00:11:41] Speaker 04:
Yes, it was prepared.

[00:11:42] Speaker 04:
The question is this, as you asked before, as you mentioned before,

[00:11:46] Speaker 04:
A, was it in the file?

[00:11:48] Speaker 04:
The evidence, the fair implication is that it was, the fair inference is that it was not in the file.

[00:11:53] Speaker 04:
There's no evidence of that.

[00:11:54] Speaker 04:
The arbitrators made a finding.

[00:11:56] Speaker 04:
The second question is, you know, when was it, when was it even created?

[00:12:03] Speaker 04:
When was it created?

[00:12:04] Speaker 04:
It could have been created at any time, in the process, up to and including, correct, correct.

[00:12:11] Speaker 04:
And that is not answered definitively.

[00:12:15] Speaker 04:
We don't have record evidence that said it was created on X, Y, or Z date.

[00:12:21] Speaker 04:
But the more important point is there's no evidence that it was ever in the file to which Mr. Lacey was told he could go and view it.

[00:12:28] Speaker 04:
That's the problem in the case.

[00:12:31] Speaker 04:
As to its prejudicial effect, let me just make two quick comments.

[00:12:33] Speaker 03:
Well, there's evidence that he was allowed to go look at the file.

[00:12:36] Speaker 03:
That's in that page A45.

[00:12:38] Speaker 04:
Yeah, I'm not disputing it.

[00:12:39] Speaker 04:
Not disputing it.

[00:12:40] Speaker 04:
It does say it's clear in the proposal.

[00:12:42] Speaker 04:
It says if you want to go look, here's where it is.

[00:12:45] Speaker 04:
You can have time off to go look for it.

[00:12:47] Speaker 04:
That's not contested.

[00:12:48] Speaker 04:
The question is what was in that file.

[00:12:50] Speaker 04:
But here's the other important thing about what was in the file.

[00:12:54] Speaker 04:
That is A45 and A46, which we say was not in the file.

[00:12:59] Speaker 04:
It's a very general and vague statement of misconduct that was, if you will, ignored.

[00:13:06] Speaker 04:
In other words, what the proposing official is suggesting to the deciding official is, look, we've given this guy a free ride for a long time.

[00:13:13] Speaker 04:
Now's the time to crack down on him.

[00:13:15] Speaker 03:
What could be more prejudicial?

[00:13:17] Speaker 03:
The problem is that the way that the arbitrator dealt with this statement, you know, we often got complaints that he's probably not carrying his weight.

[00:13:25] Speaker 03:
That's what it's all about.

[00:13:25] Speaker 03:
It looked to me like what the arbitrator was saying is, let's sort of hearsay, and I don't think I'm going to allow that statement to carry any weight, the size of the penalty, so I'm dialing the penalty back.

[00:13:36] Speaker 03:
The arbitrator didn't say, oh, this is an extradited communication, and I therefore now have to decide whether it was new and material.

[00:13:44] Speaker 04:
Actually, in the petitioner's brief A1, it begins the opinion and award of the arbitrator.

[00:13:51] Speaker 04:
And what he in fact says is, in considering the Douglas factors, the grievance supervisor made certain claims that were considered by the disciplining official.

[00:13:59] Speaker 00:
but not disclosed to the grievant, nor was any evidence demonstrated to support those claims in the arbitration hearing.

[00:14:18] Speaker 04:
Yes.

[00:14:20] Speaker 00:
Really, that's a different analysis.

[00:14:22] Speaker 00:
That doesn't have to do with ex parte communications.

[00:14:25] Speaker 00:
That has to do with the fact that it's got to be within the four corners of the chart.

[00:14:29] Speaker 04:
I always disavow scholarship when I make these arguments, and I guess I have to do again.

[00:14:35] Speaker 04:
The significance of the difference is escaping me, because yes, it's uncharged.

[00:14:43] Speaker 04:
It's uncharged, meaning he didn't have notice of it.

[00:14:47] Speaker 00:
it's on the because of our and record.

[00:14:51] Speaker 04:
He did have a disciplinary record.

[00:14:52] Speaker 00:
He personally knew that he had a disciplinary record and had actually received discipline, progressive discipline in the past.

[00:14:59] Speaker 04:
He had a reprimand and a 10-day suspension, I believe.

[00:15:02] Speaker 04:
A reprimand was, if I recall correctly, reprimand is unrelated to 10 days.

[00:15:06] Speaker 00:
So those things he certainly knew about.

[00:15:08] Speaker 00:
So if we're talking about what he knew about, then that puts you in a more difficult position.

[00:15:13] Speaker 00:
The question is whether or not under the Douglas Factors he can be repunished

[00:15:18] Speaker 00:
for that conduct without a charge that incorporates them.

[00:15:23] Speaker 04:
Right, claiming he can't.

[00:15:24] Speaker 04:
I mean, that's the most essential principle, that you've got to tell somebody what they're charged with.

[00:15:30] Speaker 00:
But didn't the arbitrator, gracefully or not, essentially fix that problem by cutting it back from 30 days to 20 days?

[00:15:37] Speaker 04:
He fixed it to some degree, but he disregarded what Young said as the proper

[00:15:41] Speaker 04:
remedy.

[00:15:41] Speaker 04:
Young clearly says the proper remedy is a new constitutionally correct procedure.

[00:15:45] Speaker 00:
So you go back to a new procedure and you could end up at 30 days?

[00:15:49] Speaker 00:
You could end up at 50 days?

[00:15:51] Speaker 04:
Well, that's the thought that I had lost when Judge Clevenger asked me the question.

[00:15:55] Speaker 04:
I think the agency would be hard-pressed, to say the least, to establish that it's reasonable to impose a greater penalty after going through everything that's since been gone through.

[00:16:05] Speaker 00:
But they certainly could easily go back to 30 days.

[00:16:08] Speaker 04:
I would take my chances.

[00:16:09] Speaker 04:
They could go back, excuse me, yes, they could go back to 30 days, yes.

[00:16:13] Speaker 01:
Okay, let's hear from the other side.

[00:16:14] Speaker 01:
We'll save you some rebuttal time.

[00:16:16] Speaker 04:
Thank you, Your Honor.

[00:16:16] Speaker 04:
I appreciate that.

[00:16:23] Speaker 02:
Ms.

[00:16:23] Speaker 02:
Orfield.

[00:16:26] Speaker 02:
Thank you, Your Honor.

[00:16:27] Speaker 02:
May I please record?

[00:16:29] Speaker 02:
I've heard, I think, at least three new arguments, so I'm going to jump into those and then I'll go back to

[00:16:33] Speaker 02:
the main arguments I've made if I have time remaining.

[00:16:36] Speaker 03:
Well, the elephant in the room is whether or not the Douglas Factor memo was in the evidence pile.

[00:16:44] Speaker 03:
And, Your Honor, I think... And so you heard the arguments that have been made by the Alanist on why it was not.

[00:16:53] Speaker 03:
Why do you think it was?

[00:16:56] Speaker 02:
I do think it was.

[00:16:57] Speaker 02:
I'd like to note that I do think that the new argument, so I think, first of all, I would say they've waived that argument.

[00:17:03] Speaker 03:
I have waved the argument out and they said it wasn't, in replying to your argument in your red brief, which was to say, well, this is not an expert statement because he had access to it.

[00:17:17] Speaker 03:
They come back and say, no, there was a factual finding by the arbitrator that that's not so.

[00:17:23] Speaker 03:
So where's the waiver?

[00:17:25] Speaker 02:
okay here and all the other way but it's not a waiver uh... but i i i do you know i think the government from claiming something that uh... i'm sorry your honor uh... only one uh... i think the record currently support that that that document within the file and

[00:17:48] Speaker 03:
Where?

[00:17:49] Speaker 03:
What supports that the document was?

[00:17:53] Speaker 03:
We see the word the evidence on page 49, and the question is whether or not the document, which is at A45, was in the evidence, yes or no?

[00:18:03] Speaker 02:
I understand that.

[00:18:04] Speaker 02:
Well, I think, first of all, the document that you're referring to, the proposal that was given to Mr. Lacey that invites him to go look at all the information, it says the information upon which this is based,

[00:18:17] Speaker 02:
is in this file for your review.

[00:18:18] Speaker 02:
And I think, as the court mentioned, the government's entitled to presumption of regularity.

[00:18:23] Speaker 02:
It's saying we're giving you the information to look at.

[00:18:26] Speaker 02:
How do we know?

[00:18:28] Speaker 03:
Just back up.

[00:18:28] Speaker 03:
The presumption of regularity was the point I raised.

[00:18:30] Speaker 03:
It's not in your brief.

[00:18:32] Speaker 03:
How do we know what is regular here?

[00:18:34] Speaker 03:
You haven't put it in your brief.

[00:18:36] Speaker 03:
You've made no argument in your brief whatsoever to support a presumption of regularity argument.

[00:18:41] Speaker 02:
Well, that's true, Your Honor.

[00:18:43] Speaker 02:
That's true.

[00:18:43] Speaker 02:
We did make an argument in our brief

[00:18:46] Speaker 02:
that the testimony, first of all, the document says the information is being made available.

[00:18:53] Speaker 03:
The person who created the data factor analysis says, I did it before we made the charge.

[00:18:59] Speaker 02:
Yes.

[00:19:01] Speaker 02:
And putting the notice that says all the information is available to you in the human resources office that we relied on, and the fact that that was part of the information that was relied on,

[00:19:15] Speaker 02:
I think putting those two things together, it's pretty clear that that analysis was in the Human Resources Office available to Mr. Lacey.

[00:19:25] Speaker 03:
What did you make of the appellant's argument that the fact that the Douglas Factor memo isn't dated, but we know it was created on or before 8-11-2001,

[00:19:39] Speaker 02:
I think we know that it was created... What's the magic of 8-17-2001?

[00:19:49] Speaker 02:
When it was dated by the deciding official, that indicates that he's reviewed it in the scope of his review of materials that were presented to him.

[00:19:59] Speaker 02:
Then he does his own sort of Douglas Factor checklist that's also in the record where he initials each Douglas Factor.

[00:20:04] Speaker 03:
It also certainly suggests that he was aware of it.

[00:20:07] Speaker 03:
We know he was aware of it because he relied on it in his decision, correct?

[00:20:11] Speaker 02:
Yes, Your Honor.

[00:20:13] Speaker 03:
The only question is if, and the reason why I'm pushing on this is that I think in a very candid and helpful way, the appellant has said that if the Douglas Factor document was in the evidence that was, if Gries was made available, then he doesn't have a case.

[00:20:32] Speaker 03:
the whole expert case fault.

[00:20:35] Speaker 03:
So it becomes quite important for us to know whether or not the document A45 is in the record, and there seems to be, doesn't there, an implicit finding by the arbitrator that it was not in the other?

[00:20:50] Speaker 02:
Well, I think the arbitrator's finding is not a model of clarity.

[00:20:56] Speaker 03:
Well, let me back down.

[00:20:57] Speaker 03:
Do we presume that the arbitrator knows the law?

[00:21:01] Speaker 03:
The arbitrator knows that you can't have an ex parte communication if the so-called communication was made available.

[00:21:08] Speaker 02:
I think that's right, Your Honor.

[00:21:09] Speaker 02:
And he doesn't state that he's making a finding that there was an improper ex parte communication.

[00:21:14] Speaker 02:
He never uses the word ex parte or due process in his decision, even though he uses it earlier on when he's describing the argument that was made to him.

[00:21:23] Speaker 02:
So he's cognizant of the argument being made.

[00:21:27] Speaker 02:
He chooses not to use those words.

[00:21:30] Speaker 03:
And he doesn't give... He chooses a remedy which is impermissible if he's following down the expert in communication theory route.

[00:21:38] Speaker 02:
Exactly, Your Honor.

[00:21:40] Speaker 02:
It may be that what he's doing is... Frontier justice?

[00:21:46] Speaker 02:
Well, it's not entirely clear.

[00:21:47] Speaker 02:
It's possible that he... If he is making a due process finding in his analysis,

[00:21:55] Speaker 02:
I think what he's doing based on his remedy is agreeing with the government's alternative argument, which is if there was an ex parte communication, it didn't rise to the level of a due process problem, and therefore we don't need a new process.

[00:22:12] Speaker 00:
What's your response to my point to the other side at the end there, which is this whole analysis, this whole ex parte analysis seems to be off base.

[00:22:23] Speaker 00:
The real point was, did the charge actually say that you're being charged for a pattern of AWOL activity, including those for which you've already been punished?

[00:22:36] Speaker 00:
Or did the charge only relate to specific incidences of AWOL and specific incidences of insubordination and therefore was it improper for the Douglas factors to take into consideration prior conduct that had already been addressed by the agency?

[00:22:54] Speaker 02:
I don't think there's evidence that he's being charged for something beyond what's in the specific charges.

[00:23:06] Speaker 02:
that proposes his suspension does state that it will take into account prior discipline.

[00:23:12] Speaker 02:
It does give him notice of that.

[00:23:15] Speaker 02:
And it mentions the two specific incidents, the reprimand and the earlier suspension, the 10-day suspension.

[00:23:25] Speaker 02:
And there's testimony, and I don't think we cited this, but it's in the hearing transcript on page 22, starting at line 17.

[00:23:36] Speaker 02:
about how the deciding official used these two prior incidents.

[00:23:40] Speaker 02:
And I think his description of how he used them is exactly appropriate.

[00:23:45] Speaker 02:
He used them not to make some sort of judgment that because he behaved this way in the past, his behavior this time could be assumed to be equally improper.

[00:24:02] Speaker 02:
Instead he used them to

[00:24:06] Speaker 02:
Just make sure that progressive discipline was happening as it's supposed to.

[00:24:11] Speaker 02:
He's asked, what was the primary reason that you felt the 30-day suspension was appropriate?

[00:24:18] Speaker 02:
And he answers, I believe he'd had a 10-day suspension prior to this, so where do you go from that?

[00:24:27] Speaker 02:
You need to do progressive discipline.

[00:24:29] Speaker 02:
So he needed a suspension that was more than 10 days.

[00:24:32] Speaker 02:
Under the circumstances, I felt that a 30-day suspension was appropriate.

[00:24:36] Speaker 02:
I don't think he's using those earlier incidents as some sort of aggravating factor or using them to address his character in some improper way or make assumptions about what actually happened.

[00:24:55] Speaker 02:
He's just using them in the sense of looking at

[00:24:58] Speaker 02:
the progression of discipline.

[00:25:00] Speaker 00:
Why didn't you object to the arbitrator's decision to arbitrarily cut back the penalty rather than leave it to the agency to make that determination?

[00:25:12] Speaker 02:
I think that would have been unusual for such a small change and the agency didn't express interest in doing that.

[00:25:30] Speaker 02:
Now, I'll just turn back to the general arguments that we've made.

[00:25:37] Speaker 02:
We don't think that the Department of Veterans Affairs violated Mr. Lacy's Fifth Amendment or ITG process through ex parte communication.

[00:25:50] Speaker 03:
Are you making an alternative argument that if indeed we do decide there is an ex parte communication problem here, it's harmless because the information was not new and material?

[00:26:00] Speaker 03:
Well, I think we wouldn't use the term harmless because that is... If it's not new and material and therefore it's not extradited communication.

[00:26:10] Speaker 03:
We would say it's not new and material and therefore... Are you asking us to make a judgment that it was not new and material?

[00:26:16] Speaker 02:
We are asking the court to make a judgment that if there were an ex parte communication, it's not new and material and therefore... How can we do that?

[00:26:26] Speaker 03:
I mean, obviously it was material enough for the deciding official to change the penalty, right?

[00:26:33] Speaker 02:
He didn't change the penalty.

[00:26:34] Speaker 02:
He just decided... He reduced the penalty.

[00:26:38] Speaker 02:
Well, yes.

[00:26:39] Speaker 03:
I mean, it's a difference between 20 days in jail and 30 days in jail.

[00:26:44] Speaker 03:
So it reduced the penalty.

[00:26:46] Speaker 03:
So it had to be material for that purpose.

[00:26:50] Speaker 03:
And it was new, at least to Mr. Lacey, because it wasn't disclosed to him.

[00:26:57] Speaker 03:
So how can it not be new and material?

[00:27:01] Speaker 02:
Well, Your Honor, we don't think it's new and material because

[00:27:10] Speaker 02:
The statement at issue communicates only that Mr. Lacey was a problem and was not carrying his weight.

[00:27:15] Speaker 02:
And we think that all of the other documentation that supported this proposal communicated the same issues with Mr. Lacey.

[00:27:24] Speaker 03:
From the same audience?

[00:27:27] Speaker 03:
Well, even... There's one thing to say.

[00:27:29] Speaker 03:
If there's one person in the room that thinks that Cleverger doesn't do his job and holds his weight, but it's a different thing of everyone who works at the court feels it.

[00:27:38] Speaker 02:
Well, I'm sure that's not a problem, Your Honor.

[00:27:45] Speaker 02:
Don't speak too soon.

[00:27:50] Speaker 02:
I think that even if you look at the document, I don't think there's any indication that the deciding official relied specifically on hearing that same issue from different parties.

[00:28:04] Speaker 02:
I don't think there's anything in the record that supports that.

[00:28:06] Speaker 02:
But even if you look at, in terms of whether or not Mr. Lacey had this information and whether or not the deciding official would have had this information without that specific statement, everything else that the decision was based on, I think, communicates the same ideas.

[00:28:21] Speaker 02:
The first charge, including the charging document, the proposal itself, the first charge absent without leave recounts six incidents where Mr. Lacey was expected to be at work but neither showed up or sought to take leave.

[00:28:35] Speaker 02:
The second charge, failure to follow instructions recounts an occasion where Mr. Lacey refused to update a patient's record as instructed.

[00:28:43] Speaker 02:
And the third charge of disrespectful conduct recounts the fact that Mr. Lacey not only failed to do something that his supervisor asked him to do, but responded to her in an insulting and disrespectful manner.

[00:28:56] Speaker 02:
So all three of these charges describe an employee who's a problem and who's not carrying his weight.

[00:29:02] Speaker 02:
If he doesn't show up for work, he's not carrying his weight.

[00:29:04] Speaker 02:
Somebody else has to do that.

[00:29:06] Speaker 02:
If he's refusing to do the work that his supervisor tells him to do, he's not carrying his weight.

[00:29:11] Speaker 02:
Someone else has to do that work.

[00:29:14] Speaker 02:
And that's a problem.

[00:29:16] Speaker 02:
So I don't think it was new and material for anyone to hear that he was a problem and not carrying his weight.

[00:29:25] Speaker 02:
So therefore, we think it's cumulative.

[00:29:28] Speaker 02:
And even if this was an ex parte communication, it didn't rise to the level of a due process violation.

[00:29:37] Speaker 02:
uh... turning to the last argument we made having to do with mister lathe's request for back pay and attorney fees we don't think he's entitled to that relief here uh... first of all we don't think there's a due process violation but if there is a due process violation he wins right?

[00:29:58] Speaker 02:
well if there is we still think he has to meet the standard for the attorney's fees there's a standard set forth in alan versus united states postal service of five prong

[00:30:07] Speaker 02:
test that is examined.

[00:30:10] Speaker 02:
And we don't think he's made any sufficient showing at this point.

[00:30:14] Speaker 02:
Even the criterion under that standard that refers to procedural error requires more than a showing of harmful procedural error.

[00:30:22] Speaker 02:
It requires a balancing test between the agency's excuse and the prejudice to the employee.

[00:30:29] Speaker 02:
And here the agency pretty clearly tried to make materials available to Mr. Lacey.

[00:30:35] Speaker 02:
Pretty clearly Mr. Lacey was on notice that he was a problem and not carrying his weight, whether or not he saw that statement and that he needed to defend against that.

[00:30:45] Speaker 02:
So even assuming that the agency erred, it's not clear that Mr. Lacey can meet that balancing test and he hasn't offered any argument for that effect.

[00:30:57] Speaker 02:
For all of the foregoing reasons and for those set forth in the government's papers,

[00:31:02] Speaker 02:
Government asked that the court affirm the arbitrator's decision sustaining Mr. Lacey's 20-day suspension.

[00:31:09] Speaker 02:
If the court has no further questions, I have nothing further.

[00:31:12] Speaker 01:
Thank you, Ms.

[00:31:14] Speaker 01:
Overfield.

[00:31:15] Speaker 01:
Okay, Mr. Gallardo, you have a few minutes.

[00:31:17] Speaker 01:
Let's say four minutes.

[00:31:18] Speaker 04:
Thank you, Judge Newman.

[00:31:19] Speaker 04:
Let me just make a couple of quick points.

[00:31:22] Speaker 04:
Talking to the point raised by Judge Clevenger on new material, what's really very new is

[00:31:31] Speaker 04:
His, the second part of the statement, his behavior affects the morale of other employees in the work area.

[00:31:36] Speaker 04:
That's not stated in the proposal or the decision in the proposal in any way by explicitly or implicitly.

[00:31:43] Speaker 04:
We often get complaints from his coworkers that he has a problem in not carrying his weight.

[00:31:48] Speaker 04:
That's again, not implicitly or explicitly in the proposal.

[00:31:52] Speaker 04:
Clearly new, clearly prejudicial.

[00:31:54] Speaker 04:
The arbitrator said it was considered by the deciding official.

[00:31:58] Speaker 04:
You can find that at page A51.

[00:32:01] Speaker 04:
A quick comment on progressive discipline.

[00:32:03] Speaker 04:
If you look at the testimony that my honorable counsel referred to, the deciding official saying there was a need for progressive discipline.

[00:32:13] Speaker 04:
He had already been disciplined for 10 days.

[00:32:15] Speaker 04:
Therefore, he needed more than 10 days.

[00:32:17] Speaker 04:
That is a complete contradiction of what Douglas says.

[00:32:20] Speaker 04:
Douglas says least appropriate to deter future conduct and all the other factors.

[00:32:24] Speaker 04:
you may have a lesser offense on the second go than you had on the first go.

[00:32:30] Speaker 04:
And according to Douglas, you would have to then impose a lesser, not a greater penalty.

[00:32:34] Speaker 04:
The thought, and it's a misconception, that I frequently confront with management officials is, if we gave you a year in jail the first time, we've got to give you two days in jail, two years in jail the second time, even though the first offense was armed robbery and the second offense was shoplifting.

[00:32:51] Speaker 04:
That's more theoretical as opposed to the specifics of this case.

[00:32:55] Speaker 04:
I think we've, in terms of regularity, yes, it's a presumption.

[00:33:02] Speaker 04:
It's a rebuttable presumption.

[00:33:04] Speaker 04:
I think we rebutted it.

[00:33:05] Speaker 04:
I think we discussed that when I made my original presentation, but I'm glad to answer any further questions if that be the case.

[00:33:11] Speaker 03:
You don't agree that the government laid down any precedent for a presumption of regularity?

[00:33:17] Speaker 03:
They did not.

[00:33:18] Speaker 04:
They clearly did not.

[00:33:19] Speaker 03:
It only came out of my mouth.

[00:33:22] Speaker 04:
Yes, sir, as did frontier justice.

[00:33:25] Speaker 04:
But yes, there's lots of frontier justice in the world of labor arbitration.

[00:33:33] Speaker 01:
Okay, thank you.

[00:33:34] Speaker 01:
Thank you both.

[00:33:35] Speaker 01:
Thank you very much.