[00:00:00] Speaker 03:
This morning is 143064, Steele v. Interior.

[00:00:18] Speaker 04:
Thank you, Your Honors.

[00:00:19] Speaker 04:
May it please the Court?

[00:00:20] Speaker 04:
My name is John Berry and I represent the Petitioner, Laura Steele.

[00:00:24] Speaker 04:
This case is a very limited and

[00:00:27] Speaker 04:
Fairly unique kind of matter.

[00:00:29] Speaker 04:
In my research, I was not able to find another case really involving a condition of employment and due process.

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And the reason why we're here today is it appears in the MSPB's board decision, they were unable to do so either.

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And essentially, as noted in the government's brief at page 37,

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It appears that the board made a conscious decision not to decide whether due process actually applied to the petitioner's case.

[00:01:03] Speaker 01:
What additional process, if you could just summarize it, do you believe was due on the history of this case?

[00:01:10] Speaker 04:
Yes, Your Honor.

[00:01:12] Speaker 04:
The petitioner, who was a law enforcement ranger for approximately four years prior to having her commission taken away, was not given a notice of what

[00:01:25] Speaker 04:
her performance issues were prior to the review team that met with her.

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And, you know, she was told that she was going to be able to give a response later.

[00:01:38] Speaker 04:
She was cut off by the chair of the review team.

[00:01:42] Speaker 04:
She never had a chance to find out what the real issues were with respect to her performance.

[00:01:48] Speaker 04:
She had some general idea.

[00:01:49] Speaker 03:
I don't understand how the record supports that conclusion.

[00:01:53] Speaker 03:
I mean, frankly, we've seen a lot of these personnel cases, and not ones necessarily like this, but certainly performance-based cases.

[00:02:00] Speaker 03:
And here, as I understand the findings made by the board, there was repeated reviews.

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She was told to have a period extended for reasons.

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She was continuously in the process apprised of what was deficient and what was not, culminating in a meeting

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telling her about it and giving her an opportunity to respond.

[00:02:25] Speaker 03:
I understand you take issue with, well, she didn't have the chance to finish what she was going to say and say everything she wanted.

[00:02:32] Speaker 03:
But that's a little thin when we're talking about looking globally at whether or not due process.

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I mean, it's hard for us to get into the weeds about whether she was given enough time to say what she wanted.

[00:02:43] Speaker 03:
But I'm missing why this wasn't sufficient.

[00:02:47] Speaker 04:
It's an excellent question, Your Honor, because most cases

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that I have seen with respect to disciplinary actions are fairly concise.

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I mean, in this case, there were so many documents, there were so many reports that she was only able to provide a general sort of outline defense as to what the issues might have been.

[00:03:07] Speaker 04:
No one during the review team meeting said, hey, you've got these issues, these issues, those issues.

[00:03:12] Speaker 00:
That's not what the record shows.

[00:03:14] Speaker 00:
The record shows that even the officer in charge that

[00:03:19] Speaker 00:
with her, the lead trainer, was giving her almost minute-by-minute feedback, redoing things and then discussing with her what had happened, what had occurred, and what some of the shortfalls were.

[00:03:32] Speaker 04:
Excellent question, Your Honor.

[00:03:33] Speaker 04:
With respect to this, this is a case of too much.

[00:03:36] Speaker 04:
I mean, there were a number of items in the record.

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There were a number of criticisms that didn't ultimately end up in the recommendation.

[00:03:44] Speaker 00:
There was too much information, too much feedback given to her?

[00:03:48] Speaker 00:
That's true.

[00:03:49] Speaker 04:
Yes, Your Honor.

[00:03:49] Speaker 00:
When you look at the over 600 pages... I put two argue and there was no feedback.

[00:03:53] Speaker 04:
No, what I'm saying is that when you have no specifics as to what the actual issues are, you have a number of allegations, some good, some bad in the Daily Observation Report.

[00:04:02] Speaker 03:
She did have a number of specifics.

[00:04:05] Speaker 03:
She had ratings, and certain ratings were below three, and that's why they extended her period, which she was aware of.

[00:04:12] Speaker 03:
I mean, I did see between the lines reading your brief that, yeah, it seemed to me your argument was,

[00:04:18] Speaker 03:
she got too much due process and therefore it wasn't enough.

[00:04:22] Speaker 03:
And I guess I understand that at some level but I don't see, I mean I guess you could overwhelm someone with just giving them so much information that they can't even understand what you're talking about but I don't see that demonstrated by the factual findings in this case.

[00:04:36] Speaker 03:
I mean she was a professional woman, she knew what her job was, she knew what she was doing, she had training, she got feedback.

[00:04:43] Speaker 03:
I don't see how

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too much information here can satisfy the fact that there was no due process because there was too much.

[00:04:50] Speaker 04:
Well, I think that in some of the cases that I found, and there haven't been a lot, one was Cheney 479F3 1343 and a Merit Systems Protection Board case Mason 70 MSPR 584.

[00:05:05] Speaker 04:
What was interesting about those cases, and those are not exactly similar to what I have, but they talked about

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um, notice requiring something more, something specific, uh, you know, dates and times.

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And with respect to this case, there was a lot of feedback as, as, as the court has recognized.

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There was, it was, it's extensive and this record is very extensive.

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But when it comes to a point in those cases, it seems to me that when you have so many issues and you don't know what the, what the agency's looking at before they make a decision to take your law enforcement officer commission away,

[00:05:41] Speaker 00:
forbid you from from ever holding a commission with the Department of Interior that they should at least say hey listen here's what your issues are please respond let me ask you this and so that her training period was extended and I guess it's generally acknowledged it was extended because she wasn't going to make it I said let's give you another shot we're going to extend your training period during that training period it appears to me that they focused on just certain

[00:06:10] Speaker 00:
aspects of the training, voice command, the presence, you know, controlling the crowd, that type of thing.

[00:06:17] Speaker 00:
That's not specific feedback.

[00:06:20] Speaker 00:
I mean, doesn't that alert her to exactly what were her problems like?

[00:06:25] Speaker 04:
Well, with respect to that question, and that's a good question, Your Honor, when I looked at the record, and we didn't have this available to us prior to the decision being made at A998 through A1001,

[00:06:39] Speaker 04:
there were specific recommendations that were given and some of these recommendations didn't necessarily relate back to the last portion of her extension process.

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So I guess the point being is when I was looking at especially A-998, I was said they issued a recommendation which if they had given this recommendation to Officer Steele, the petitioner, I think that that would have satisfied due process because

[00:07:07] Speaker 04:
she would have been able to say, okay, you have an issue with officer safety, acceptance of feedback, problem solving, and here, please respond.

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And I think that wasn't done here.

[00:07:18] Speaker 04:
And I think that more importantly, I think the board was in a quandary about how to deal with that issue because reviewing the board's decision, which is at A6, it says, moreover, we are aware of no case in which, in a situation where an appellant is removed,

[00:07:35] Speaker 04:
For failure to meet a condition of employment, the board has subjected the underlying process to a due process analysis.

[00:07:41] Speaker 00:
So you're looking at some of the feedback on those general terms, like officer safety.

[00:07:47] Speaker 00:
But during her training, one of the problems was, for example, when she failed to ask a suspect whether the suspect was armed or not.

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And they went over that issue.

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I mean, that goes to the safety of the officers, doesn't it?

[00:08:03] Speaker 00:
I mean, isn't that exactly what you're

[00:08:05] Speaker 00:
You're referring to?

[00:08:07] Speaker 04:
Well, we didn't know.

[00:08:08] Speaker 04:
I mean, and there's testimony in the record that the petitioner didn't know what the exact issues were before the review board.

[00:08:15] Speaker 04:
She signed the daily observation reports with exception of the last one.

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So she had some idea that there was a fair amount of negative feedback.

[00:08:22] Speaker 04:
That is clear.

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What wasn't clear is when she went into the review team meeting, she tried to figure out what the issues were that she was supposed to address.

[00:08:34] Speaker 04:
She spoke for about five minutes, and then they started asking her questions.

[00:08:38] Speaker 04:
But nobody ever told her, hey, listen, this is what the issues are we want you to address.

[00:08:42] Speaker 04:
And she asked.

[00:08:45] Speaker 03:
Yes, Your Honor.

[00:08:47] Speaker 03:
Thank you.

[00:08:53] Speaker 02:
May it please the court.

[00:08:55] Speaker 02:
This is essentially a substantial evidence case.

[00:08:58] Speaker 02:
The only issue that Miss Steele challenges is the procedure before the review team.

[00:09:02] Speaker 02:
I think as the questions have shown, there were daily contemporaneous written ratings by the trainers of her performance based upon the reference manuals that set out in great detail how the raters should rate the trainee.

[00:09:19] Speaker 02:
There were narratives.

[00:09:20] Speaker 02:
The daily observation reports were maybe four or five pages, not very specific, and she signed each one without ever disagreeing except for the very last time.

[00:09:31] Speaker 02:
At the review team meeting, and again this was initiated based on the reference manual that sets out in Chapter 8 of the trainer manual how this review team should function, headquarters sent three members that had not been involved in her training unbiased.

[00:09:51] Speaker 02:
They testified that they reviewed all of the underlying documentation.

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They interviewed all but one of the trainers.

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They interviewed her.

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She testified she had 90 minutes before the review team.

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They asked her to focus on the phase three extension and phase three, which was critical to enabling her to perform as a solo park ranger.

[00:10:14] Speaker 02:
Contrary to what petitioner is arguing, during the phase three extension, there was extensive remedial training focused upon the performance deficiencies that had been established in terms of officer safety and survival.

[00:10:28] Speaker 02:
investigative skills.

[00:10:30] Speaker 02:
Ms.

[00:10:31] Speaker 02:
Steele testified that yes, even on the last day in the DOR number 43, there were two incidents.

[00:10:37] Speaker 02:
She admitted that she did not ask the appropriate questions of the potential victim of domestic violence.

[00:10:44] Speaker 02:
She admitted that, and we quoted this in our brief, that when they encountered a group of intoxicated campers, actually she walked away, her trainer had to intervene so they didn't drive away, when they

[00:10:58] Speaker 02:
searched one of the campers, Ms.

[00:11:01] Speaker 02:
Steele admitted that she missed, she did the improper search.

[00:11:05] Speaker 02:
She missed a cigarette lighter in this camper's jacket.

[00:11:09] Speaker 03:
I appreciate your joining the argument here.

[00:11:11] Speaker 03:
It just seemed to me in your brief, you were fighting another war.

[00:11:15] Speaker 03:
And that is that, I mean, the board here said, or, and you are arguing that there is no due process requirement that applies to this training program piece of her demotion process.

[00:11:28] Speaker 03:
If we reject that, you're still arguing that on the facts here, it was harmless error not to apply due process because she clearly got an abundance of due process through this.

[00:11:40] Speaker 02:
That's absolutely correct, Your Honor, because in the review team process, which is really the only thing at issue here, there was sufficient notice of what her performance deficiencies were and meaningful opportunities during the review team process as well as before.

[00:11:57] Speaker 02:
to address it.

[00:11:58] Speaker 03:
Her argument that she had to... Is the government acknowledging that she was entitled to due process in this proceeding?

[00:12:04] Speaker 02:
No, not in the review.

[00:12:05] Speaker 02:
We're not acknowledging that because as still argued, there's no case law to support that.

[00:12:11] Speaker 02:
And to the extent there were any errors at all, it was harmless error as the Board concluded.

[00:12:17] Speaker 02:
And in fact, the Board, the way a petitioner characterized it at page 11 of her reply brief, the Board effectively decided that due process did not apply.

[00:12:26] Speaker 02:
I think that's

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really not the issue here.

[00:12:28] Speaker 02:
The issue here is in the review team process, did she have sufficient notice and meaningful opportunities?

[00:12:36] Speaker 03:
No, so you're saying is they said due process didn't apply, but the issue is even if they were wrong, was it harmful given that she got sufficient due process in this circumstance?

[00:12:47] Speaker 02:
And it was not harmful.

[00:12:49] Speaker 02:
She asked for a remand to start this process all over again, but given the record here that is replete with

[00:12:57] Speaker 02:
and the administrative judge credited the testimony of the field training lead, Mr. Jacobs, about the contemporaneous feedback that she got, not only written, but in discussions that there's absolutely no need for remand here, that in this review team process that was set up on a national basis for park service training of park rangers, the review team came out to make sure that the trainers had

[00:13:25] Speaker 02:
done all the training correctly, that she was informed.

[00:13:30] Speaker 02:
There was testimony that they asked her along the way, particularly during phase three and the phase three extension, how are we doing?

[00:13:36] Speaker 02:
Is there anything else we can do to help you learn in this remedial training?

[00:13:40] Speaker 02:
Are you okay with all this?

[00:13:44] Speaker 02:
And she went along and said, okay.

[00:13:45] Speaker 02:
And one of the key things is that she

[00:13:50] Speaker 02:
Her claim that she had to guess really lacks merit because at the hearing she, well, before the review team she sent in these long written rebuttals that she claimed were based upon contemporaneous notes she took along the way that she never shared with her trainers.

[00:14:04] Speaker 02:
And she never really disputed the facts of what happened, but she just wanted to challenge some of the evaluations.

[00:14:12] Speaker 02:
But essentially the only issue here is

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Was she informed of her performance deficiencies sufficiently enough so she could respond?

[00:14:21] Speaker 02:
Did she have meaningful opportunity to respond to the review team and the record?

[00:14:26] Speaker 03:
Well, that's only an issue if the government is wrong and there is a due process requirement, right?

[00:14:32] Speaker 02:
No, actually what applies here is not due process, but the well-established manuals that govern this program.

[00:14:39] Speaker 02:
It's the agency's policies.

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They're set nationally.

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objective, they're detailed, that's what applies, is the agency's internal procedures that govern the review team, which the review team found were met.

[00:14:57] Speaker 02:
And to the extent that the review team sent a summary up the chain of what the petitioner referenced in the argument, there was nothing new in that from all of the evidence that had been developed in the records

[00:15:16] Speaker 02:
during the training.

[00:15:17] Speaker 02:
So there was nothing new.

[00:15:18] Speaker 02:
It's not like there was some surprise.

[00:15:19] Speaker 01:
You're drawing a distinction, I gather, between due process of law and the process of an adequate opportunity to improve.

[00:15:29] Speaker 01:
But is that a reasonable distinction to draw?

[00:15:34] Speaker 02:
I think here what we're relying on is not due process.

[00:15:38] Speaker 02:
It is the agency's well-established program, and this deal is on notice of it, of

[00:15:45] Speaker 02:
how the federal, the field training and evaluation program would be run, how she would be rated.

[00:15:51] Speaker 01:
Notice of the perceived inadequacies and opportunities to improve, whatever that's called.

[00:15:58] Speaker 01:
Whatever it's called.

[00:15:59] Speaker 01:
I gather there are cases that that was inadequate.

[00:16:02] Speaker 02:
I'm sorry, Your Honor.

[00:16:03] Speaker 01:
I say I gather that the petitioner's position is that there was inadequate notice of the perceived flaws and an inadequate opportunity

[00:16:15] Speaker 01:
to improve, whether you call that due process a law or call it something else, it's certainly fundamental to government employment, is it not?

[00:16:24] Speaker 02:
That's what she's, yes, and that's what she's claiming, that she had to guess at her performance deficiencies and she continues that argument in her reply brief.

[00:16:33] Speaker 02:
And that the review team, that the due process was, even though they gave her 90 minutes with the three member review team, it wasn't enough.

[00:16:41] Speaker 02:
She wanted to read verbatim her rebuttal.

[00:16:44] Speaker 02:
the review team members, or two at least, testified that they had all read the underlying documentation for two days before the review team meeting.

[00:16:54] Speaker 02:
And they had received her rebuttals.

[00:16:57] Speaker 02:
They then read the rebuttals.

[00:16:58] Speaker 02:
So it's not as if she wasn't heard.

[00:17:00] Speaker 02:
She was heard.

[00:17:01] Speaker 02:
She was allowed to submit her rebuttals.

[00:17:04] Speaker 02:
They considered it fully.

[00:17:05] Speaker 02:
And the administrative judge made detailed findings of fact supporting the Board's decision that she'd

[00:17:13] Speaker 02:
had sufficient notice of performance deficiencies and that the review team process was fair.

[00:17:21] Speaker 02:
And that's really all that's at issue in this case.

[00:17:25] Speaker 02:
So we respectfully request that the court affirm the decision of the board.

[00:17:30] Speaker 02:
Thank you.

[00:17:38] Speaker 04:
Thank you, Your Honors.

[00:17:40] Speaker 04:
I think that the court should apply due process to this case, because one of the fundamental issues the petitioner brings, and they're so linked together, is the fact that... Can you identify the interests that's protected by the due process clause in this case?

[00:17:53] Speaker 04:
Sure.

[00:17:53] Speaker 04:
Both federal employment in terms of a position as a law enforcement officer, which she, the petitioner, in order to get the position in the first place in 2007, had to attend Northern Arizona University to get a law enforcement certificate, which is in the record,

[00:18:09] Speaker 04:
and then she was able to get a position.

[00:18:10] Speaker 04:
She then functions as a full police officer for four years.

[00:18:15] Speaker 00:
After functioning for four... It seems to me that that's a lot of contingencies.

[00:18:19] Speaker 00:
I mean, she had to, in order to keep her license, she had to pursue a higher license.

[00:18:24] Speaker 00:
In order to keep a job, she had to obtain the higher license, and if she did not get the higher license, she couldn't keep her former job.

[00:18:31] Speaker 00:
Plus, she was out of, so it doesn't seem to me that she actually possessed an interest that's protected under

[00:18:39] Speaker 04:
Your Honor, that's an excellent question.

[00:18:42] Speaker 04:
I think she did.

[00:18:43] Speaker 04:
I think that when someone invests so much time in becoming a federal law enforcement officer and obtains a commission, works as a law enforcement officer performing all the duties of a law enforcement officer for four years, and then has a review team meeting in which she's not presented with the issues and the recommendations with respect to her removal

[00:19:06] Speaker 04:
which then goes to the superintendent who testified, I believe in the record, at A-70 that he wasn't aware that she wasn't allowed to present her full response.

[00:19:20] Speaker 04:
I think that you have an issue because not only did she lose her position as a law enforcement officer, not only was she let go from training, but she was then banned from ever holding a law enforcement officer position with the Department of Interior.

[00:19:36] Speaker 04:
I think that there are significant interests, and when someone invests that much, as we've argued, into becoming a law enforcement officer, I think that that's important.

[00:19:46] Speaker 04:
And I don't think we can minimize one of the issues that came up in the briefs, which is the deciding official's participation in this.

[00:19:55] Speaker 04:
I mean, the government did make a point in their briefs that there were two separate components of the agency.

[00:20:04] Speaker 04:
The record makes it clear that the deciding official back at the home park of the petitioner was involved in the decision to remove her from training.

[00:20:13] Speaker 04:
And the record further shows at 8203 that one of the interesting points is that the revisions to the FTEP manual, which occurred in 2009, was supposed to bring in the home park and the deciding official into the process to decide whether or not a trainee should be remediated or let go.

[00:20:33] Speaker 04:
So I think that those are critical points.

[00:20:36] Speaker 04:
And I would ask, in closing to this honorable court, that especially because the board sort of left it as a void, as acknowledged by the government's counsel on page 37 of their brief, the board didn't fully address whether or not this kind of condition of employment was subject to the due process procedure.

[00:21:00] Speaker 04:
And I argued in our briefs that it was.

[00:21:03] Speaker 04:
And I respectfully request that the court either remand to the board with instructions to remand for a correct constitutional procedure under ward, or in the alternative, remand to the board with instructions to look and actually make a decision on the issue of due process.

[00:21:22] Speaker 00:
Let me ask you this question.

[00:21:23] Speaker 00:
Haven't you conceded to the merits of the case?

[00:21:29] Speaker 00:
You're not challenging that they made the wrong decision.

[00:21:33] Speaker 00:
Correct?

[00:21:35] Speaker 04:
Well, I believe we would challenge if this was remanded.

[00:21:37] Speaker 00:
The appeal is only to that they did not extend due process.

[00:21:45] Speaker 00:
That's correct.

[00:21:46] Speaker 00:
I don't see that you're challenging the actual merits of the decision.

[00:21:51] Speaker 04:
Not before this court.

[00:21:52] Speaker 04:
And we did not allege harmful error.

[00:21:53] Speaker 04:
We did not allege patent unfairness in this appeal.

[00:21:56] Speaker 00:
The errors with respect to those.

[00:21:57] Speaker 00:
If you're not challenging the merits and we find in your favor, what is there left to do?

[00:22:02] Speaker 04:
What's left to do, Your Honor, is to remand it to the agency so that they can provide her with notice of her deficiencies and an opportunity to respond.

[00:22:10] Speaker 04:
If they still go ahead and they remove her following giving her due process, then I think that it would be hard to appeal.

[00:22:19] Speaker 03:
Thank you.