[00:00:24] Speaker 04:
The next case for argument is 14-3135, Wilson versus DHS.

[00:00:56] Speaker 04:
Mr. Desa, whenever you're ready.

[00:01:03] Speaker 00:
May it please the court, my name is Robert Desa, representing the petitioner, Tina Wilson.

[00:01:10] Speaker 00:
The crux of this case is a failure to communicate.

[00:01:16] Speaker 00:
Whenever an agency is going to take adverse action against an employee, the agency has to communicate three things to the employee.

[00:01:25] Speaker 00:
First, the agency has to communicate the conduct, misconduct that the agency believes that the employee committed and that's usually done, that's done in the charges.

[00:01:38] Speaker 00:
Second, the agency has to communicate the evidence that it will rely upon to prove the misconduct and that is the specifications, the specific facts which support the alleged misconduct.

[00:01:53] Speaker 00:
Then the third thing is that the agency must communicate to the employee any information that the agency intends to use or rely on in terms of establishing a penalty.

[00:02:07] Speaker 04:
That is the case, but under the facts here, I think I appreciate what you're saying or what you're alleging.

[00:02:13] Speaker 04:
fact that establishes that there was no due process because she didn't receive notice of disclosure to her ex-husband.

[00:02:22] Speaker 04:
But the board concluded and the agency argues that

[00:02:26] Speaker 04:
Firstly, there was unrefuted testimony that the deciding official would have reached the same result irrespective of that, would have still offered the penalty irrespective of the non-authorized use.

[00:02:40] Speaker 04:
So an argument of harmless error is made.

[00:02:43] Speaker 04:
Why is that not sufficient?

[00:02:45] Speaker 00:
Because she was denied constitutional due process, the harmless error is the other side of the harmful error argument, but not the due process.

[00:02:58] Speaker 00:
Because if there's a denial of due process, then the merits of the case

[00:03:03] Speaker 00:
are not counted.

[00:03:05] Speaker 00:
The employee is entitled to due process for every aspect of it.

[00:03:09] Speaker 04:
And here... Wait a minute, wait a minute.

[00:03:11] Speaker 04:
So the deciding official, if we accept his testimony or her testimony, that irrespective of whether or not the unauthorized disclosure material was considered for a penalty, the penalty would have been the same even absent that.

[00:03:26] Speaker 04:
Your view is that that's not sufficient.

[00:03:30] Speaker 04:
to satisfy the due process then, because he said that he would have reached a conclusion no matter what, right?

[00:03:39] Speaker 00:
That's correct, because the due process consideration is a separate consideration.

[00:03:43] Speaker 00:
A lot of the due process cases involve multiple allegations of misconduct and sustained allegations of misconduct.

[00:03:52] Speaker 00:
And so if the due process issue was obviated by the fact that there were other sustained issues of misconduct,

[00:04:03] Speaker 00:
then there would be very few of these cases.

[00:04:07] Speaker 04:
If you are right and this due process remedy assertion holds, what's the remedy?

[00:04:17] Speaker 04:
If it's clear on the record that the agency would have gone the same way no matter what, so we issue a case, an opinion saying due process was violated, okay.

[00:04:28] Speaker 04:
And the remedy is?

[00:04:31] Speaker 00:
Reverse and remand for a correct procedure.

[00:04:34] Speaker 00:
And at that point, the agency has the choice to do what they should have done to begin with.

[00:04:40] Speaker 04:
Well, they told us that if the alternative procedure was used and they had not considered it, they would have reached the same result.

[00:04:50] Speaker 04:
So why did they have to do that again?

[00:04:53] Speaker 00:
Because the due process is separate from harmful procedural error.

[00:04:58] Speaker 00:
I mean, in this court has stated that and the board has stated that.

[00:05:04] Speaker 00:
If the only issue was would the agency have done it anyway, then a lot of these cases would not come to this point because the agency

[00:05:16] Speaker 00:
in other cases would have done it anyway.

[00:05:18] Speaker 00:
Now in this case... But that's not true.

[00:05:20] Speaker 03:
The board's decision on the due process question was completely separate from its harmful error analysis under procedural questions.

[00:05:27] Speaker 03:
Yes, yes it was.

[00:05:28] Speaker 03:
And the ALJ laid out each of the factors you're supposed to consider and the ALJ found putting aside whether they would have done it anyway that this was not new and cumulative evidence and that she had an opportunity to respond and that that evidence didn't put any undue pressure on them.

[00:05:45] Speaker 00:
The ALJ and the board had two different rationales.

[00:05:51] Speaker 00:
The ALJ found that it was not new and material information because she was provided with the agency record and there was information in the agency record from which she could have

[00:06:03] Speaker 00:
presumed or gleaned that this was an issue.

[00:06:07] Speaker 00:
Well, as a matter of evidence... No, that's not the board's finding.

[00:06:10] Speaker 01:
The board's finding is that she herself raised the issue.

[00:06:14] Speaker 00:
Right.

[00:06:14] Speaker 00:
No, I'm speaking to the ALJ's finding now.

[00:06:16] Speaker 01:
We're dealing with the board.

[00:06:18] Speaker 00:
Alright.

[00:06:18] Speaker 00:
The board's finding was essentially that she gave herself notification because in her written response

[00:06:26] Speaker 00:
She said in a couple of places, and I did not provide any information to my ex-husband or anyone else, and once she said, and I did not do this for personal gain.

[00:06:38] Speaker 00:
Now, the board took this to be a denial of an allegation.

[00:06:44] Speaker 00:
Well, it was not a denial because a denial is a reflexive verb.

[00:06:48] Speaker 00:
In order to have a denial, you have to have something to deny.

[00:06:51] Speaker 00:
There was nothing there to deny.

[00:06:53] Speaker 00:
The board kept using the term allegation.

[00:06:56] Speaker 01:
The question is, does the employee know that this is an issue in the case?

[00:07:00] Speaker 01:
No.

[00:07:00] Speaker 01:
The employee herself raises the issue.

[00:07:02] Speaker 01:
How is it that the employee doesn't know it's an issue in the case?

[00:07:06] Speaker 00:
Because she was making an argument, the charge was that she made text queries that were not related to her official duties.

[00:07:16] Speaker 00:
She felt very much that they were related.

[00:07:19] Speaker 00:
She explained in great detail why she believed they were related.

[00:07:25] Speaker 00:
This was part of that explanation.

[00:07:27] Speaker 00:
This would be, in effect, like dipped in a judicial decision.

[00:07:32] Speaker 00:
She made this comment, but the point she was making is that she believed that these queries were part of her official work.

[00:07:41] Speaker 03:
But if you make a comment in the course of a hearing, then the veracity of that comment puts your credibility at issue, right?

[00:07:50] Speaker 00:
But the credibility issue was whether she really believed that they were related to her work.

[00:07:57] Speaker 00:
And that's what the deciding official said.

[00:08:00] Speaker 00:
Nothing in the deciding official's testimony or in his decision has anything to do with credibility regarding whether she communicated any information to her ex-husband.

[00:08:13] Speaker 00:
That issue never came up.

[00:08:16] Speaker 00:
It never came up in the OPR report of investigation.

[00:08:19] Speaker 00:
Her ex-husband sent these two emails to the agency and accused her of just about everything under the sun, but not of communicating text information to him.

[00:08:32] Speaker 00:
OPR conducted an extensive investigation, 2,108 pages and five volumes.

[00:08:40] Speaker 00:
They never took a statement from him, but they interviewed him three times.

[00:08:44] Speaker 00:
and an OPR agent did a summary of their interviews with him.

[00:08:47] Speaker 00:
He never said that they... You're not addressing the question.

[00:08:51] Speaker 01:
What's the unfairness when she herself raises the issue of considering the issue to be in the case?

[00:08:58] Speaker 00:
Why is that unfair?

[00:08:59] Speaker 00:
The unfairness was that there was no link between what she did and what the deciding official did.

[00:09:06] Speaker 00:
He did not rely on that.

[00:09:09] Speaker 00:
You have to look at the deciding official's responsibility and what he did.

[00:09:14] Speaker 00:
She had no clue as to his thought processes.

[00:09:18] Speaker 00:
The fact that she said, I didn't convey information or share information, she had no way of knowing what he was thinking.

[00:09:28] Speaker 00:
And after the remand, the agency went through the record in great exhaustedness talking about phone calls that were made back and forth.

[00:09:38] Speaker 00:
The deciding official didn't rely on that.

[00:09:41] Speaker 00:
He didn't rely on her raising the issue.

[00:09:44] Speaker 00:
Who did she raise the issue with?

[00:09:46] Speaker 00:
She didn't raise it with a deciding official.

[00:09:48] Speaker 00:
She did not have a reasonable opportunity to rebut any specific allegations because the agency never made any specific allegations.

[00:09:58] Speaker 00:
If the agency had done what it should have done, if the deciding official really thought this is important, they should have rescinded the notice of adverse action, reissued it, put this charge in here,

[00:10:12] Speaker 00:
and put in specifications saying, based on this, we believe you did this.

[00:10:16] Speaker 00:
She then would have answered that in great detail just the way she answered everything else.

[00:10:23] Speaker 00:
This statement that she made in here was an off-the-cuff statement to emphasize her belief that she made these text inquiries for legitimate official purposes.

[00:10:36] Speaker 00:
You cannot presume from making text inquiries that therefore there was a sharing of information with anyone else.

[00:10:43] Speaker 00:
That's not a logical assumption.

[00:10:46] Speaker 00:
It's a possibility, but it is not a necessity.

[00:10:51] Speaker 00:
Sharing information is a much more serious offense than making text inquiries for personal purposes, and it is not a lesser included offense.

[00:11:04] Speaker 00:
So her remark, just as she said in there, she also said, I did not make these inquiries for personal gain.

[00:11:12] Speaker 00:
That was the subject of the investigation.

[00:11:15] Speaker 00:
She was never charged with that.

[00:11:18] Speaker 00:
So based on that, then was it fair if the deciding official said, and I also believe you did this for personal gain?

[00:11:25] Speaker 00:
I mean, this just opens up a whole can of worms because it shifts the notice burden.

[00:11:34] Speaker 00:
It's a can of worms that she opened up.

[00:11:37] Speaker 01:
And what you're saying is the employee can say anything that he or she wants to.

[00:11:43] Speaker 01:
at the agency level and never be called to account for that.

[00:11:49] Speaker 00:
No, if an employee makes a confession of something, just as in a criminal law, a confession, but if an employee says, I didn't do X, Y, and Z and she's not charged with that, the agency cannot then say, oh, we think you did X, Y, and Z because that completely

[00:12:10] Speaker 00:
obviates the whole due process procedure.

[00:12:13] Speaker 00:
The agency doesn't have to charge anything, the agency doesn't have to prove anything, but the agency in effect gets the benefit of a conviction without having had to put on any case and without any notice to the employee.

[00:12:27] Speaker 00:
Now, much was made of the fact that she gave a detailed written response, which she did.

[00:12:32] Speaker 00:
And had she been charged with communicating this information to her ex-husband or anyone else, she would have given a detailed written response to that.

[00:12:42] Speaker 00:
But she wasn't charged with that.

[00:12:43] Speaker 00:
She didn't have notice of that.

[00:12:45] Speaker 00:
There was no communication of that.

[00:12:47] Speaker 00:
There was no meaning of the minds on that.

[00:12:50] Speaker 00:
So she didn't give a detailed defense because there was nothing to defend.

[00:12:55] Speaker 04:
Okay.

[00:12:55] Speaker 04:
We're in the rebuttal.

[00:12:57] Speaker 04:
I wanted to say that and hear from the government.

[00:13:08] Speaker 02:
Ms.

[00:13:11] Speaker 02:
Wilson contends that just because she wasn't officially charged with disclosing text that a due process violation has occurred.

[00:13:19] Speaker 02:
We admit that the agency did not include a stated aggravating factor of disclosure of text information in the notice of proposed removal, but case law

[00:13:29] Speaker 02:
This court has made clear in stone and in words that not all instances in which certain information relied upon by the agency is not specifically included in the notice of proposed removal necessarily results in a due process violation.

[00:13:42] Speaker 02:
It's only when the deciding official considers new and material information.

[00:13:47] Speaker 02:
The evidence at issue here was information supporting the misuse of text charge.

[00:13:52] Speaker 02:
uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh...

[00:14:22] Speaker 01:
why are you arguing that?

[00:14:24] Speaker 01:
That's a very difficult row to hoe.

[00:14:27] Speaker 01:
I mean, that's not what the board said.

[00:14:29] Speaker 01:
The board said she was on notice because she raised the issue herself.

[00:14:33] Speaker 01:
Right, she was on notice.

[00:14:34] Speaker 01:
Not because she had five volumes of evidence that she could have sifted through and found an allegation about that.

[00:14:41] Speaker 02:
I agree with your honor in the sense that she was on note.

[00:14:47] Speaker 02:
The way I read the board's decision was that she gave herself notice based on the overwhelming evidence in the record demonstrating that she had run the text queries at the request of her ex-husband and a natural conclusion to be drawn from the deciding official would be if she made the searches at the request of her ex-husband that she would be sharing that information.

[00:15:10] Speaker 02:
address that evidence in her responses to the notice of proposed removal and the evidence that she reviewed and significantly denied sharing the text information with her ex-husband and she did so in the context of explaining her side of the story as to why she had conducted each of the text inquiries at issue.

[00:15:31] Speaker 02:
And so that the deciding official considered that she disclosed text information was just the natural inference to be drawn from the overwhelming evidence demonstrating that she ran the searches at the request of her ex-husband.

[00:15:47] Speaker 03:
So you don't deny that the deciding official found it to be important that she shared this information with her ex-husband for purposes of determining the penalty?

[00:15:55] Speaker 02:
Well, with respect to the misuse of tax charge, he did consider it as an aggravating factor.

[00:16:01] Speaker 02:
However, he did testify, and this goes to the third stone factor, which is whether the information at issue was of the type that would unduly influence a deciding official to rule in a particular manner.

[00:16:11] Speaker 02:
Here, as the administrative judge found, the deciding official unequivocally testified that he would have removed Ms.

[00:16:18] Speaker 02:
Wilson based upon the substantiated lack of candor charge and the failure to cooperate charges alone because

[00:16:25] Speaker 02:
Those were the more serious charges.

[00:16:27] Speaker 02:
And more importantly, those charges had nothing to do with the information relied upon by the deciding official that she had disclosed text information with her ex-husband.

[00:16:36] Speaker 02:
So the third stone factor demonstrates that no due process violation has occurred.

[00:16:43] Speaker 02:
Addressing the second stone factor, which is whether Ms.

[00:16:47] Speaker 02:
Wilson knew of the information and had an opportunity to respond, she had the opportunity to respond.

[00:16:54] Speaker 02:
She was presented all the information that was relied upon by the deciding official.

[00:16:59] Speaker 02:
She gave her side of the story, not once, but twice.

[00:17:02] Speaker 02:
It was a 31 page written response and an hour and a half long oral response.

[00:17:08] Speaker 02:
She addressed that overwhelming evidence demonstrating that she had run text queries at the request of her ex-husband.

[00:17:15] Speaker 02:
And she said, no, I didn't.

[00:17:17] Speaker 02:
These are legitimate text queries I ran.

[00:17:20] Speaker 02:
I did it for investigative purposes.

[00:17:22] Speaker 02:
And the deciding official and the administrative judge both found her not to be credible and that she had run the searches on behalf of her ex-husband.

[00:17:31] Speaker 03:
So why wasn't she just charged with that?

[00:17:33] Speaker 02:
I don't know.

[00:17:34] Speaker 02:
She was charged with misuse of text and I don't know whether the agency felt that that was a more solid charge, but the fact that the deciding official considered the natural conclusion to be drawn from the fact that she had ran improper searches on behalf of her ex-husband is not a due process violation.

[00:18:00] Speaker 01:
But as I understand it, and correct me if I'm mistaken about this, they didn't consider this to be part of the charge.

[00:18:08] Speaker 01:
They considered it only in connection with the penalty, right?

[00:18:11] Speaker 02:
That's right.

[00:18:12] Speaker 02:
And in Ward, this court held that the stone analysis applies.

[00:18:16] Speaker 02:
They also extended the stone analysis to situations

[00:18:20] Speaker 02:
in which the agency considers aggravating factors that were not specifically included in the notice of proposed removal as opposed to consideration of whether a charge is substantiated or not.

[00:18:34] Speaker 04:
So on the first factor of stone, new material, you don't dispute that it was material.

[00:18:40] Speaker 02:
So the first stone factor actually, the overall three factor test is to determine whether the information was new and material.

[00:18:54] Speaker 02:
The first stone factor addresses whether the information at issue was new or whether it was cumulative.

[00:19:00] Speaker 02:
And the administrative judge here found that the information at issue was contained

[00:19:07] Speaker 02:
in the case file accompanying the notice of proposed removal, which was provided to Ms.

[00:19:13] Speaker 02:
Wilson.

[00:19:13] Speaker 02:
Notably, Ms.

[00:19:14] Speaker 02:
Wilson does not identify any piece of evidence that she was not provided with that was considered by the deciding official.

[00:19:23] Speaker 02:
And the deciding official testified that he relied on the investigative file in making a determination that he didn't find credible her explanations regarding her text inquiries were done for investigative purposes.

[00:19:37] Speaker 04:
But isn't there a distinction, also I'm confused here, I mean, they're talking about whether or not she did the improper searches, but that's separate and distinct, is it not, for her disclosure of that information to her husband, right?

[00:19:50] Speaker 02:
Whether she disclosed that information with her ex-husband, I think in the factual circumstances of this case, it goes part and parcel with the nature of the charge because

[00:20:03] Speaker 02:
Either she did or did not run these searches at the request or on behalf of her ex-husband.

[00:20:10] Speaker 02:
So that was the agency side of the story.

[00:20:12] Speaker 02:
Her side of the story was no, I did it for investigative purposes.

[00:20:15] Speaker 02:
Well, the agency determined and it was affirmed by the board that she improperly ran the searches at the request of her ex-husband and a natural conclusion

[00:20:23] Speaker 02:
to be drawn is that if she had run searches for her... If they didn't, why did they charge her with that?

[00:20:28] Speaker 04:
The natural conclusion would ordinarily be if that is in fact the natural conclusion, then they would have charged her with that as well.

[00:20:35] Speaker 02:
I don't know why the agency didn't charge her with that, but I don't think it's improper for the deciding official to have considered that as an aggravating factor as part of the misuse of text charge.

[00:20:54] Speaker 02:
This court has no further questions.

[00:20:56] Speaker 02:
We expect to request it to affirm the board's decision.

[00:21:02] Speaker 04:
Sir, you have five minutes, about three minutes.

[00:21:05] Speaker 00:
A critical difference in this case from all the other new and material information cases that I have researched

[00:21:14] Speaker 00:
is that in all the other cases, the information they're talking about is some kind of hard, real information, documentation of prior discipline, conversations with other people.

[00:21:24] Speaker 00:
There's no question that something occurred.

[00:21:27] Speaker 00:
The problem in this case is the new information was the speculation of the deciding official.

[00:21:34] Speaker 00:
He had an ex parte communication with himself

[00:21:37] Speaker 03:
in effect, because he decided... That's my real question.

[00:21:42] Speaker 03:
In terms of the threshold questions, this constitutes an ex parte communication.

[00:21:47] Speaker 03:
Does this really constitute an ex parte communication for purposes of the stone analysis?

[00:21:51] Speaker 03:
I mean, while the stone analysis may be helpful here, there is a threshold question.

[00:21:56] Speaker 03:
Usually we're talking about information that comes from a third party or that the official knew from some prior activity.

[00:22:04] Speaker 03:
This is not a question of how the official views the overall record before him.

[00:22:10] Speaker 00:
I agree and I say ex parte communication because of how the analysis has developed in the previous cases.

[00:22:18] Speaker 00:
This is different.

[00:22:19] Speaker 00:
The real question in this case is if

[00:22:22] Speaker 00:
It's a denial of due process for deciding officials to use ex-party information from other sources.

[00:22:32] Speaker 00:
Is it not even worse if it's just something that the deciding official made up in his head?

[00:22:38] Speaker 00:
Because he exceeded his authority.

[00:22:40] Speaker 01:
He became... What is the evidence that he made it up in his head?

[00:22:43] Speaker 01:
I mean, there is evidence in these five volumes that this is what happened, that she did it at the request of her ex-husband, gave him the information.

[00:22:51] Speaker 00:
There was never any question that she did this based on tips for her ex-husband.

[00:22:57] Speaker 00:
That was never a disputed issue.

[00:23:00] Speaker 00:
Her argument was that notwithstanding that, it was still part of her official duties because it involved potential criminal information.

[00:23:09] Speaker 00:
She never said that she didn't get tips from her ex-husband.

[00:23:13] Speaker 00:
In fact, this became an issue at the hearing because essentially you can get tips from everywhere.

[00:23:19] Speaker 00:
The decision was that no, even though she got these tips from her ex-husband, she had more of a personal interest in it than a law enforcement interest.

[00:23:31] Speaker 00:
That was the credibility issue.

[00:23:33] Speaker 00:
It was never raised in the investigation, in the proposed notice, in the final notice, that she communicated any text information to her ex-husband.

[00:23:45] Speaker 00:
And in fact, if you look at Exhibit 3 to the OPR report, which is the summation of the interviews with him,

[00:23:52] Speaker 00:
He said twice in there that he asked her, well, what did she find?

[00:23:57] Speaker 00:
And she said, I can't tell you that.

[00:23:58] Speaker 00:
Don't go there.

[00:24:00] Speaker 00:
And he never alleged that.

[00:24:01] Speaker 00:
And they never investigated her for that.

[00:24:03] Speaker 00:
The source of the investigation was that she did it for private gain.

[00:24:08] Speaker 00:
And the OPR did a 43-page report on the entire investigation.

[00:24:15] Speaker 00:
And not once in there is there any mention

[00:24:18] Speaker 00:
of her communicating information to her ex-husband.

[00:24:22] Speaker 01:
Under the federal rules of civil procedure, my recollection is, and I can't cite you the rule, that there's a specific rule that says even if something isn't alleged in the complaint, if the party is treated as an issue, it will be deemed to be properly raised.

[00:24:37] Speaker 01:
And how is that different from this?

[00:24:39] Speaker 00:
There's a rule about 40 admissions, and this was not an admission, and this was not treated as an issue.

[00:24:52] Speaker 00:
And aside it was add-on, this was not something where there was any joining of the minds or a focus.

[00:25:01] Speaker 00:
She made this as an emphatic statement, part of her statement that she believed that the text inquiries that she made, that she admittedly made,

[00:25:11] Speaker 00:
and that she made based on tips for her ex-husband, was still part of her official duties because they involved some issues of possible illegal travel or money laundering or that type of thing.

[00:25:25] Speaker 00:
Now, let's suppose they had charged her with sharing text information with her ex-husband.

[00:25:34] Speaker 00:
I think from that charge, you could arguably conclude that therefore the purpose of making the text queries was improper, if in fact you share it.

[00:25:47] Speaker 00:
But it doesn't go the other way.

[00:25:49] Speaker 00:
Making text inquiries for personal reasons does not necessarily implicate sharing information with an outside source.

[00:25:58] Speaker 00:
The deciding official recognized that because he said, this is much more serious in my mind than just making improper text inquiries.

[00:26:08] Speaker 00:
And that issue was never joined.

[00:26:11] Speaker 00:
She didn't make a denial because there was nothing to deny.

[00:26:15] Speaker 00:
In the cases where there have been new ex parte communications and information, the question has been raised as whether the employee knew of the improper communications.

[00:26:33] Speaker 00:
and whether the employee had a chance to respond to it.

[00:26:37] Speaker 00:
And in the cases where it's been held that there was no due process violation, the deciding official gave the employee copies of the communications and copies of the information and kept the case open.

[00:26:50] Speaker 00:
so that they could respond.

[00:26:52] Speaker 00:
And I've had that happen in cases where there'd be a subsequent communication, and the deciding official would say, well, I found out afterwards, thus and so, here's what it's based on.

[00:27:06] Speaker 00:
I'm sorry.

[00:27:06] Speaker 04:
You saw this run up.

[00:27:07] Speaker 04:
A final thought, or?

[00:27:09] Speaker 00:
Pardon?

[00:27:09] Speaker 04:
A final thought.

[00:27:10] Speaker 00:
That was it.

[00:27:11] Speaker 04:
OK.

[00:27:11] Speaker 04:
Thank you.

[00:27:12] Speaker 04:
Thanks, Bob, Councilman.

[00:27:13] Speaker 04:
The case was submitted.

[00:27:14] Speaker 04:
That concludes Dr. Stevenson's testimony.