[00:01:01] Speaker 03:
Our second and final case this morning is number 153023, Olson versus Merit System Protection Board, Mr. Harwood.

[00:01:15] Speaker 00:
Good morning, Your Honors.

[00:01:16] Speaker 00:
May it please the Court.

[00:01:18] Speaker 00:
The issue in this case is whether the Merit System, it's framed as whether the Merit System Protection Board had jurisdiction to determine whether furloughing

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petitioner who is national taxpayer advocate without written approval of the secretary.

[00:01:32] Speaker 02:
If we sent this back, what relief could your client get?

[00:01:35] Speaker 00:
The relief would be a declaration that the... Sorry to cut you off.

[00:01:43] Speaker 02:
I know what you're going to say.

[00:01:44] Speaker 02:
Isn't that an advisory opinion?

[00:01:46] Speaker 00:
No, it is not, Your Honor.

[00:01:48] Speaker 00:
First of all, it's not an advisory opinion because the implementation of the 2014 Internal Revenue Service

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Shutdown Contingency Plan, which remains in effect, created a case or controversy between petitioner and the Commissioner of Internal Revenue Service and as the... I don't understand that.

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Why is it not an advisory opinion that that plan, if it's applied in the future, is inappropriate?

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because the plan still remains in effect.

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In the Avery case, which was affirmed by this court in the Berlin matter, it involved a situation where the Department of Labor, prior to implementation of the 2014 shutdown plan,

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brought an action under 7521 of Title V before the Merit Systems Protection Board to determine whether there was good cause for the furlough plan.

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And the court there and the board held that there was good cause for a furlough plan as implemented, and this court affirmed it.

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And obviously, in that case, there was a case of conflict.

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What were the facts of that case?

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Who were the employees involved?

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The employees involved were administrative law judges.

[00:03:05] Speaker 02:
Well, isn't that a little bit different?

[00:03:07] Speaker 02:
That's your problem.

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In 7521 cases involving administrative law judges, agencies have to seek permission from the MSPB before they can administer a plan.

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So that's what gives them the authority.

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In essence, that statute does give the board essentially authority to issue an advisory opinion.

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But you don't have that here.

[00:03:29] Speaker 00:
Your honor, but not only did... You have to have an adverse action.

[00:03:32] Speaker 00:
Well, the board doesn't have authority to issue advisory opinions, plus this court went on appeal to this court, and this court can't give advisory opinions, yet it affirmed the board's determination.

[00:03:47] Speaker 02:
Right, because that statute actually essentially creates an exception to that rule.

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which is before an agency can take an adverse action against an ALJ, it has to receive the board's permission.

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So in essence, the board does render an advisory opinion to the agency saying, yes, you can take an adverse action against the ALJ.

[00:04:09] Speaker 02:
That law doesn't apply to other employees, does it?

[00:04:12] Speaker 00:
Well, Your Honor, first, like I said, this court then, the case was appealed to this court, and this court entered a decision in the Berlin case, affirming the action of the Merit Systems Protection Board.

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And in this Article III court, neither Congress, Congress cannot

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enter and pass a statute that imposes jurisdiction on a court where there is no case of controversy or require a court to enter an advisory opinion.

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And in here, it's not an advisory opinion because there's still a determination of the rights of the petitioner vis-a-vis the Internal Revenue Service as to

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the legality of the 2014 shutdown contingency.

[00:05:02] Speaker 03:
What consequences does that have?

[00:05:04] Speaker 03:
I don't understand.

[00:05:05] Speaker 03:
I mean, she's gotten her back pay and benefits and, you know, so what she, she just seems to want an abstract determination that she shouldn't have been furloughed.

[00:05:16] Speaker 00:
Well, no, Your Honor, she doesn't want an abstract determination because this case cuts to the heart of the relationship between the Commissioner of Internal Revenue Service and the National Taxpayer Advocate Service.

[00:05:28] Speaker 00:
When Congress enacted the 1998 Internal Revenue Service Reform and Restructuring Act, it enacted 78- What are the practical consequences of such a determination?

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What difference does it make to her?

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I mean, she may feel better.

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But we don't decide cases to make people feel better.

[00:05:50] Speaker 00:
Well, Your Honor, it's not a question of whether or not she feels better.

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She didn't bring this action to feel better.

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She brought this action to determine her rights vis-a-vis the Commissioner of Internal Revenue Service.

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Sometime in the future.

[00:06:03] Speaker 00:
Well, even if it is valid sometime in the future, and there still would be a case or controversy under... How do we know that until we get to that case or controversy sometime in the future?

[00:06:14] Speaker 00:
Your Honor, it's one of those cases where it

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repetition, but evading review.

[00:06:22] Speaker 03:
And it never happened before, right?

[00:06:24] Speaker 00:
Well, Your Honor, she had never been furloughed before because the prior contingency plans all allowed, accepted the national taxpayer advocates and parts of her staff from being furloughed.

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But this plan still remains in effect.

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We've had 18 furloughs now.

[00:06:41] Speaker 02:
It's binding.

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They could change it tomorrow.

[00:06:43] Speaker 00:
Well, if they could change any plan tomorrow, the law could be changed tomorrow.

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That's why we don't hear cases where there's not a case or controversy.

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If a furlough comes up next year because Congress can't agree to a budget, they may reconsider this and they may decide that she's exempt.

[00:06:58] Speaker 00:
Well, Your Honor, in the Nebraska Press Association, and then in Murphy versus Hunt, the Supreme Court set out a two-part test for the capable of repetition but evading review determination.

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And one is, is the action complaint of such short duration that it will necessarily

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evade being litigated in full before it ceases.

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And in this case, since the board only has jurisdictions that furloughs do not exceed 30 days, there's no way in which a petition challenging a furlough could be fully litigated within that 30-day period.

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Can I answer this?

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I'm not quite sure why, despite the use of the language by the administrative judge, why we're talking about mootness.

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The fact is before the October 30th, 2013 filing, the day the case began, relief was complete.

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Muteness is about cases that begin with a case of controversy, and then something happens after the filing that terminates it.

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And there's a certain exception to that, capable of repetition, but evading review.

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But on the day of the filing here,

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There was no relief available from the board under adverse action.

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So I don't know why mootness is the right category, in which case capable of repetition, but evading review simply has nothing to do with it.

[00:08:33] Speaker 00:
Well, Your Honor, we believe that, well, first, Your Honor, we believe the real issue isn't really a jurisdictional issue.

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I think this court in the Johnston case, 518, f3rd at 905, noted that the board often conflates jurisdiction with whether there are facts alleged sufficient.

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so that if the person prevails, it is entitled to relief.

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So it's really a question of whether there was relief that could be granted, which is not really jurisdictional.

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But in this case, we believe that it's similar to a situation, analogous to a situation in which an individual is terminated without a hearing and without any prior notice, and there's a record in his personnel file or her personnel file

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stating that they're terminated because they had the unauthorized use of government property.

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And then prior to or immediately after a petition being filed with the board, the agency rescinds the termination and reinstates the person with back pay to the date of termination but doesn't

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expunge the record, the notice of removal and the causes for removal from the record.

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And in that situation, we believe that the board would have the authority in the juristic to grant relief in order the agency to expunge the record.

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And in the Cooper case, which was a situation where the employee was removed

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for inability to perform the services.

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And he had a claim for disability pending, which was granted.

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And that we held moot after the Navy had essentially expunged the original removal and replaced it with a voluntary retirement, right?

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And so what's the counterpart here?

[00:10:34] Speaker 00:
Well, the counterpart here is that what led to the petitioner's furloughing and the furloughing of her staff was the adoption of 2014

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shut IRS shutdown contingency plan, which went into effect on October 1, 2013, the date that the furlough began.

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And so for there to be complete relief, the portions of the contingency plan providing for the furloughing of petitioner and her staff would need to be removed in the prior furlough plan, which was in effect immediately before her removal or her furloughing.

[00:11:13] Speaker 00:
would go back into effect.

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And, Your Honor, besides if the determination is made that for some reason or other, the board lacked the authority to grant declaratory relief if it's determined that there was jurisdiction because it involved a covered employee

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and covered personnel action.

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And therefore we believe that the board erred in dismissing the case, whether it was for lack of jurisdiction or for there not being relief that could be granted.

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And if there's any further questions.

[00:12:03] Speaker 03:
Okay.

[00:12:03] Speaker 03:
Thank you, Mr. Horwitz.

[00:12:07] Speaker 03:
Mr. Carney.

[00:12:11] Speaker 01:
May it please the court.

[00:12:14] Speaker 01:
I guess I would start with the discussion of the capable of repetition yet evading review exception to the mootness doctrine.

[00:12:23] Speaker 01:
It's a petitioner's burden, of course, to establish that.

[00:12:25] Speaker 02:
Can I ask my threshold question?

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What does that have to do with a case that was over before it began?

[00:12:32] Speaker 01:
Well, I think your honor makes it clear.

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As a shorthand.

[00:12:35] Speaker 02:
I don't know why.

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Mootness is about cases that are real Article III case or controversies on the day they're filed.

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Something happens thereafter.

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And then there's this exception.

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Ordinarily, if the controversy gets resolved, the case is moot and it's over.

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There is no capable of repetition but evading review exception to standing requirements, for example.

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This is about cases that start out well and then

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and after they've started out well.

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And we don't have that, right?

[00:13:06] Speaker 02:
Or do we?

[00:13:07] Speaker 01:
I think your honor makes a good point.

[00:13:10] Speaker 01:
Board's jurisdiction is determined at the time that the case is filed and clearly that the petitioner had received, you know, full back pay and benefits and the case was never in the board's jurisdiction and should have just perhaps been dismissed for lack of jurisdiction, period.

[00:13:29] Speaker 01:
I think you make a good point there.

[00:13:30] Speaker 02:
Let's assume she filed her suit on October 16th instead of October 30th.

[00:13:35] Speaker 02:
And then, then there would be a mootness.

[00:13:38] Speaker 01:
Yes.

[00:13:39] Speaker 01:
So I'm not sure why the judge, I believe that they were raised in the arguments below.

[00:13:45] Speaker 01:
So the judge addressed them, but I think you're correct.

[00:13:50] Speaker 01:
It's the ward lacked jurisdiction over this case.

[00:13:54] Speaker 02:
I'm sorry.

[00:13:54] Speaker 02:
You were going to explain why, why if

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Um, mootness was a relevant category.

[00:14:00] Speaker 02:
This is not capable of repetition for the evading review for, for reasons that, I mean, I gather, I think I remember the administrative judge and, um, you all say, who knows whether Congress will give back pay the next time there's a furlough.

[00:14:16] Speaker 02:
And, um, in which case if Congress doesn't, then it's not evading review.

[00:14:22] Speaker 02:
She can, she'll litigate it then.

[00:14:25] Speaker 02:
Um, but I.

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Took it that at least one of the alternative positions is, of course Congress is going to give back pay the next time.

[00:14:35] Speaker 02:
That's not quite always, but pretty much always what Congress does.

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How are we supposed to decide?

[00:14:41] Speaker 01:
I don't know that that can be decided.

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And then the petitioner's reply brief, I can give you the page site.

[00:14:48] Speaker 01:
He indicated that Congress usually gives back pay.

[00:14:52] Speaker 01:
Well, in an instance where Congress did not give back pay,

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then an appellant such as Ms.

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Olson would have a viable appeal before the court.

[00:15:04] Speaker 02:
This isn't raised at all, and I assume you may not know the question of this record, but it seems you all agree that she's actually a covered employee for purposes of appeal.

[00:15:15] Speaker 02:
But I wonder if you have any idea of whether she actually is a covered employee, because in 7511 there's an exception for people that are of confidential policy advocating or policy implementing

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and if agency heads can make those sometimes or the statute makes them.

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And it seems to me that given her level, it may be a question of whether she falls into that category.

[00:15:38] Speaker 01:
I couldn't find anything in the book.

[00:15:40] Speaker 01:
I didn't.

[00:15:41] Speaker 01:
It was not in the judge's decision and it wasn't briefed by either party.

[00:15:45] Speaker 01:
I was just curious.

[00:15:48] Speaker 01:
Okay.

[00:15:49] Speaker 01:
Anything further?

[00:15:50] Speaker 01:
No, Your Honor.

[00:15:50] Speaker 01:
The court has no additional questions.

[00:15:52] Speaker 03:
Okay.

[00:15:53] Speaker 03:
Thank you, Mr. Kearney.

[00:15:55] Speaker 03:
Mr. Horowitz?

[00:15:58] Speaker 00:
Your Honor, briefly, under Elgin, the board has jurisdiction if there is a covered employee and covered agency action.

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I don't think anyone disagrees that a furlough of less than 30 days is covered agency action.

[00:16:14] Speaker 00:
And though there's a question here as to whether Ms.

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Olson is a covered employee, as my colleague

[00:16:22] Speaker 00:
Um, stated that was never briefed or argued or brought up in the, before the board.

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Um, and so I think at this point in time, we have to presume that she was a covered employee.

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And even though the agency gave her, even though, um, Congress.

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The furlough ended and she was reinstated with back pay because Congress authorized back pay.

[00:16:45] Speaker 00:
We believe that still the, um, contingency plan is similar to a

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situation where an employee is suspended or terminated for reasons that are put in his personnel file, and before he brings the action, he's reinstated with back pay, but they don't rescind the, or expunge the record as to his, the reasons for his being terminated, even though there may not have been valid reason for termination.

[00:17:18] Speaker 00:
And we think that therefore this court

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the board had jurisdiction and had the authority to grant relief that was requested by Ms.

[00:17:26] Speaker 00:
Ossoff.

[00:17:28] Speaker 03:
Okay.

[00:17:28] Speaker 00:
Okay.

[00:17:29] Speaker 00:
Thank you.

[00:17:29] Speaker 03:
Thank you, Mr. Horowitz.

[00:17:32] Speaker 03:
Thank both counsel.

[00:17:33] Speaker 03:
The case is submitted.

[00:17:34] Speaker 03:
That concludes our session for this morning.