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

[00:00:14] Speaker 02:
Next argument.

[00:00:16] Speaker 02:
Sorry.

[00:00:16] Speaker 02:
Brookings.

[00:00:19] Speaker 02:
Oh, what?

[00:00:20] Speaker 02:
Do we have Brookings against Labor?

[00:00:22] Speaker 02:
Department of Labor?

[00:00:23] Speaker 02:
Yes.

[00:00:27] Speaker 02:
Number 15, 1568.

[00:00:30] Speaker 02:
Brookings against Department of Labor.

[00:00:46] Speaker 02:
Ms.

[00:00:46] Speaker 02:
Jenkins.

[00:00:47] Speaker 00:
Yes, good morning.

[00:00:49] Speaker 00:
This is probably going to be the simplest case you're going to have today because there's nothing technical in it.

[00:00:56] Speaker 00:
This is about a brief that we tried to file with the MSPB that was rejected by the MSPB as being late.

[00:01:04] Speaker 02:
Ms.

[00:01:04] Speaker 02:
Jenkins, can you start where we are obliged to start and that is this jurisdictional question?

[00:01:10] Speaker 00:
the jurisdictional question.

[00:01:12] Speaker 00:
Well, I actually thought we were over that because we were here.

[00:01:15] Speaker 00:
So I can start with that.

[00:01:17] Speaker 02:
And just tell me if you have a different view and of my view at the moment, which is the board did not make a jurisdictional ruling, didn't say it was doing it.

[00:01:34] Speaker 02:
Department of Justice counsel is here, not board counsel.

[00:01:38] Speaker 02:
So we are squarely, I think, in the land of Klechner or Klockner.

[00:01:44] Speaker 02:
I don't know how to say it.

[00:01:45] Speaker 02:
Klockner.

[00:01:45] Speaker 02:
Klockner, thank you.

[00:01:46] Speaker 02:
And you haven't given up the underlying age and race discrimination claims.

[00:01:55] Speaker 02:
So it seems to me we don't have jurisdiction.

[00:01:58] Speaker 02:
And if that's right, the only question is, do you want the case transferred?

[00:02:02] Speaker 02:
So tell me what's wrong with that.

[00:02:03] Speaker 00:
Well, if you determine that you don't have jurisdiction,

[00:02:07] Speaker 00:
I definitely want you to transfer this case.

[00:02:09] Speaker 02:
To where?

[00:02:11] Speaker 00:
Well, what Klopner says is that it probably should have been filed in district court.

[00:02:18] Speaker 02:
Right.

[00:02:19] Speaker 02:
But I mean, we don't just issue.

[00:02:20] Speaker 02:
We have to actually identify a particular district court to transfer it.

[00:02:24] Speaker 02:
So I'm asking, what's your preference?

[00:02:25] Speaker 00:
Oh, district court for the District of Columbia.

[00:02:27] Speaker 02:
OK.

[00:02:28] Speaker 00:
Oh, exactly.

[00:02:31] Speaker 00:
I believe it should be here because I'm looking at your decision in Comforto.

[00:02:37] Speaker 00:
that came after Klockner.

[00:02:40] Speaker 00:
Now, if you don't agree that it was a jurisdictional dismissal, which we believe it was a jurisdictional dismissal.

[00:02:49] Speaker 04:
How was it a jurisdictional dismissal?

[00:02:51] Speaker 04:
Because you filed late objections to the, I guess, EEO recommendation.

[00:03:00] Speaker 04:
And they said, we're not going to hear it.

[00:03:03] Speaker 04:
We're going to follow that recommendation.

[00:03:05] Speaker 00:
It more or less said we don't have authority, that our authority is foreclosed to me.

[00:03:13] Speaker 04:
Well, I mean, I think you're just going to get a transfer, honestly, which you don't seem to be particularly unhappy with.

[00:03:19] Speaker 04:
I mean, it seems like that way you can get your claim to district court.

[00:03:22] Speaker 04:
But they didn't really say we don't have authority.

[00:03:24] Speaker 04:
They said we're not going to waive the title yet.

[00:03:27] Speaker 04:
And that's kind of almost squarely within what they said in Klechner.

[00:03:31] Speaker 00:
Well, that is Klopman.

[00:03:33] Speaker 00:
That is.

[00:03:34] Speaker 00:
I did not come here to say, you know, you overruled the Supreme Court.

[00:03:38] Speaker 04:
No, I get it.

[00:03:39] Speaker 04:
I mean... Thank you.

[00:03:40] Speaker 00:
Absolutely.

[00:03:41] Speaker 04:
I'm not trying to... I think you were a little wrong in your first statement to this court that this was the easiest case we're going to hear today because, frankly, all this stuff about mixed case jurisdiction and when we can hear it and when we can't and when it has to go to district court is, frankly, I think, much more complicated than some of the other issues we hear.

[00:03:59] Speaker 04:
I appreciate that why you wanted to come and argue today, but it seems to me that this really, the board had jurisdiction over your case, and they didn't say they didn't have jurisdiction.

[00:04:11] Speaker 04:
They just refused to waive a time deadline that they could or could not have waived.

[00:04:16] Speaker 04:
They could have, I mean, you asked them to waive it.

[00:04:18] Speaker 04:
They could have waived it, right?

[00:04:20] Speaker 00:
Yes.

[00:04:21] Speaker 04:
They just didn't do it.

[00:04:22] Speaker 03:
And the other thing is, Jenkins, looking at the opinion,

[00:04:27] Speaker 03:
It issued a decision on the merits.

[00:04:30] Speaker 03:
The board didn't say we lacked jurisdiction.

[00:04:32] Speaker 03:
It said, based on a review of his decision, meaning the AJ's, we adopt the recommendation.

[00:04:40] Speaker 03:
And they then state that affirmative defenses were not approved and said you have certain appeal rights.

[00:04:47] Speaker 03:
I mean, that's a decision on the merits.

[00:04:49] Speaker 03:
It's not a jurisdictional ruling.

[00:04:51] Speaker 00:
Well, to me, they looked at part of the merits and didn't look

[00:04:55] Speaker 00:
at the other part because they said, we're foreclosed.

[00:04:59] Speaker 00:
To me, what I read in the decision, we are foreclosed from entertaining this, your exceptions to the AJS.

[00:05:09] Speaker 03:
They didn't say we're foreclosed.

[00:05:11] Speaker 03:
They said, we will not in this case.

[00:05:13] Speaker 00:
They didn't use that terminology.

[00:05:15] Speaker 03:
But courts do that all the time, and tribunals do that all the time.

[00:05:18] Speaker 03:
If for some reason a party fails to file on time, the court can choose

[00:05:25] Speaker 03:
as a matter of discretion to accept the late filing or not to accept it.

[00:05:29] Speaker 00:
And that's not what they said.

[00:05:31] Speaker 00:
They didn't say we're exercising our discretion.

[00:05:35] Speaker 00:
They're saying because you did not follow section 1201.114 to the letter, we can't look at your exceptions.

[00:05:48] Speaker 00:
They did not say we're exercising our discretion not to do it.

[00:05:52] Speaker 00:
It was almost as though

[00:05:54] Speaker 00:
That provision, that regulation forecloses our jurisdiction to entertain your exceptions.

[00:06:02] Speaker 00:
That's why we're here.

[00:06:04] Speaker 00:
But if you determine that this was not a jurisdictional dismissal, then I agree with you that, you know, Klockner controls and that it should have been filed in the U.S.

[00:06:20] Speaker 00:
District Court for the District of Columbia.

[00:06:22] Speaker 00:
But as I said, this is a pro se appeal, started pro se at least.

[00:06:29] Speaker 00:
I came in later on.

[00:06:32] Speaker 00:
And even though, and I don't want to make any pretense to this court, petitioner does have a law degree.

[00:06:41] Speaker 00:
That has not been his profession for the last 30, 35 years.

[00:06:45] Speaker 00:
He also has an economics degree and a master's in economics, and he has been an international economist.

[00:06:51] Speaker 00:
So he's not practiced law as such, so that this was a pro se filing to begin with.

[00:07:02] Speaker 00:
And I came in much later on.

[00:07:05] Speaker 00:
So if you determine that clock no controls, then, of course, it has to be transferred.

[00:07:12] Speaker 00:
And I don't need to keep arguing that, and I don't probably need rebuttal.

[00:07:18] Speaker 00:
But what I don't want

[00:07:20] Speaker 00:
is the death knell of a legitimate claim.

[00:07:23] Speaker 00:
And I think you've adopted what the Supreme Court has said and what you said in Ford Motor Company, that you don't cause a death knell of a case because it's been filed improperly, otherwise a legitimate claim.

[00:07:38] Speaker 00:
And that's what I want.

[00:07:39] Speaker 00:
If you want to transfer to the District Court for the District of Columbia, we'd welcome that.

[00:07:47] Speaker 00:
And we'd go back, and we would do that.

[00:07:52] Speaker 02:
OK, thank you.

[00:08:04] Speaker 01:
Good morning.

[00:08:05] Speaker 02:
Good morning.

[00:08:05] Speaker 02:
Do you have an objection to transfer?

[00:08:08] Speaker 01:
The only objection that the government would raise to transferring the case to the District Court for the District of Columbia would be that it would be a waste of judicial economy to do so.

[00:08:20] Speaker 01:
has failed to file a timely appeal.

[00:08:24] Speaker 01:
They had 30 days and they were notified in the final order from the MSPB that they had 30 days to file that appeal.

[00:08:30] Speaker 04:
But that is a question for the district court, isn't it?

[00:08:33] Speaker 04:
That 30-day deadline is not jurisdictional.

[00:08:35] Speaker 04:
The district court can determine to waive it or not.

[00:08:38] Speaker 01:
It's certainly not jurisdictional, Your Honor is correct.

[00:08:40] Speaker 04:
However, given where we are... Was the appeal to us filed within 30 days or was it within the 60-day deadline?

[00:08:46] Speaker 01:
The appeal filed for this court was within the 60-day deadline.

[00:08:49] Speaker 01:
And so even if you were to equitably toll the deadline for the appeal for the district court, as of the date that the appeal was filed in this court, we were still missing the deadline for district court by 30 days.

[00:09:01] Speaker 04:
But it seems like the confusion over whether to file here or not would be a reason that the district court could excuse the failure to file within the 30 days.

[00:09:12] Speaker 01:
It certainly could be, Your Honor.

[00:09:13] Speaker 04:
In this case- Don't you really think that that's a decision

[00:09:15] Speaker 04:
the district court should make, not us?

[00:09:18] Speaker 01:
Surely that's a decision that the district court could make, if your honor is correct.

[00:09:21] Speaker 01:
We'd just like to point out the fact that Mr. Brookins was represented by counsel when they received the final order.

[00:09:28] Speaker 01:
And as counsel points out, Mr. Brookins is educated in the law as well as counsel being educated and a member of the bar.

[00:09:36] Speaker 01:
Certainly it was on notice that this appeal was due either before the federal district court or this court.

[00:09:43] Speaker 01:
within the time period prescribed by statute and failed to do so.

[00:09:47] Speaker 03:
Well, actually, the notice of appeal, or I guess I'm looking at A5 of the attachment to the petitioner's brief, it doesn't mention an appeal to this court, a possibility.

[00:10:03] Speaker 03:
It says you can go to the EEOC.

[00:10:08] Speaker 03:
And then there's a reference also

[00:10:13] Speaker 03:
to the district court.

[00:10:15] Speaker 03:
But there's no, unlike often, unlike the usual notice of appeal rights that we see in board decisions, there's no reference to the federal circuit.

[00:10:26] Speaker 01:
There is no, Your Honor is correct, there is no reference to the federal circuit.

[00:10:29] Speaker 01:
They're specifically directed, the district is specifically directed either to make an appeal before the EEOC or the federal district court within 30 days.

[00:10:38] Speaker 01:
And counsel merely failed to do so.

[00:10:41] Speaker 02:
Well, didn't merely.

[00:10:42] Speaker 02:
I mean, if the original form 10 was intentional and not withdrawn, and they were actually withdrawing the underlying age and race discrimination claims, then we could hear this.

[00:11:00] Speaker 02:
And did you think that that was something that Mr. Brookings was actually doing that, or it was a mistake, or what?

[00:11:08] Speaker 01:
Certainly, Your Honor, when we received the original, or I believe it's marked amended, it's handwritten, amended Form 10.

[00:11:14] Speaker 01:
I forget which number in the docket it is.

[00:11:17] Speaker 01:
But when we received that Form 10 statement concerning discrimination, we understood that to mean that Mr. Brookins was waiving any discrimination claims.

[00:11:26] Speaker 01:
When we received the order from the court last week asking us to submit letters addressing the issue of jurisdiction and the statement concerning discrimination, as I mentioned in my letter,

[00:11:36] Speaker 01:
I contacted Ms.

[00:11:37] Speaker 01:
Lauderdale.

[00:11:38] Speaker 01:
I asked her to advise the government as to Mr. Brooklyn's position with respect to waiving any discrimination claims.

[00:11:46] Speaker 01:
And Ms.

[00:11:47] Speaker 01:
Lauderdale represented that that was not, in fact, Mr. Brooklyn's intention, that they intended to retain their ability or entitlement to waive any discrimination claims.

[00:11:56] Speaker 01:
And for that reason, we agree with the court that Klockner controls and this matter ought to be dismissed.

[00:12:05] Speaker 01:
because it's not properly before the court.

[00:12:08] Speaker 02:
Just as a matter of general practice, I, for one, would appreciate in a case like this that the department addresses jurisdiction, which is, as Judge Hughes was indicating, often messy.

[00:12:22] Speaker 02:
And when we have to go rooting around and figuring stuff out for ourselves that you may already have thought about, it's something of a waste of time.

[00:12:31] Speaker 02:
And we had to go through this process because it seemed

[00:12:34] Speaker 02:
at least to me, awfully likely that this was unintentional on their part.

[00:12:39] Speaker 04:
And that's particularly true because most of these cases, unlike this one, are pro se.

[00:12:46] Speaker 04:
And this one was even pro se when filed.

[00:12:48] Speaker 04:
And so it's not always clear, particularly since Kleffner was somewhat of a sea change in this area, that

[00:12:58] Speaker 04:
It's always important to put that jurisdictional question in, even if they seemingly weigh the questions in the form 10, because often they don't quite understand that in the pro se context.

[00:13:11] Speaker 01:
Understood.

[00:13:12] Speaker 01:
If the panel has no further questions for the government, we respectfully request that this case be dismissed for lack of jurisdiction.

[00:13:20] Speaker 02:
Thank you.

[00:13:26] Speaker 00:
I just wanted to.

[00:13:27] Speaker 00:
Correct one thing.

[00:13:29] Speaker 00:
I think that Ms.

[00:13:32] Speaker 00:
Echols said that we had agreed that the case should be dismissed.

[00:13:35] Speaker 00:
I'm not sure if that's what she said.

[00:13:37] Speaker 00:
I thought that's what I heard.

[00:13:38] Speaker 00:
But I never- No, I think we understand.

[00:13:42] Speaker 04:
You want the case transferred if we think Kleppner applies.

[00:13:45] Speaker 00:
We got that.

[00:13:46] Speaker 00:
I just wanted to clarify that.

[00:13:47] Speaker 00:
And the fact that it was pro se, it showed you that Mr.

[00:13:52] Speaker 04:
Honestly, I don't think it matters.

[00:13:55] Speaker 04:
Klechner is so confusing to me personally that even if you had done it as a lawyer, I don't think we would hold you to it.

[00:14:04] Speaker 02:
Thank you very much.