[00:00:08] Speaker 04: All right. [00:00:09] Speaker 04: Next case for argument is 15-3036, Brown versus Defense. [00:00:54] Speaker 04: Help me with your name. [00:00:56] Speaker 04: Grahalis. [00:00:59] Speaker 00: Thank you. [00:00:59] Speaker 00: Welcome. [00:01:00] Speaker 00: Thank you. [00:01:00] Speaker 00: May it please the court, Andy Grahalis for the petitioner, Damon J. Brown. [00:01:05] Speaker 00: Before I begin, I'm obliged to direct the court's attention to a clerical error in the appendix. [00:01:13] Speaker 00: We cite in our brief page 402, which is a DOD regulation. [00:01:20] Speaker 00: And that page was inadvertently left out of the appendix. [00:01:23] Speaker 00: We're happy to file that as a supplemental appendix following this argument. [00:01:28] Speaker 00: I wanted to point that out to the court right away. [00:01:31] Speaker 00: Due process, Your Honor, requires more than a rubber stamp. [00:01:35] Speaker 01: What you say is that the Bright Bill letter was in fact a response, and it should have been considered by DOD as a response to the statement of reason. [00:01:50] Speaker 01: And you also argue, as I understand it, that the Bright Bill letter had material information in it about the filing of the bankruptcy petition. [00:01:57] Speaker 01: But I'm confused, because it seems to me that at the time of the Bright Bill letter on March 9th, there hadn't been a bankruptcy petition that was filed, because that wasn't done until May 2nd. [00:02:11] Speaker 01: Am I misunderstanding something here? [00:02:13] Speaker 00: No, I believe, Your Honor, the timing is there are two bankruptcy petitions at issue in this case. [00:02:20] Speaker 00: was in 2005, which Mr. Brown received notice had been discontinued in 2006. [00:02:27] Speaker 00: That's the bankruptcy that shows up on the credit report and is referred to in the SOR. [00:02:34] Speaker 01: What I'm referring to is what's being referred to in the Bright Bill letter. [00:02:39] Speaker 01: The Bright Bill letter says he has a current bankruptcy petition. [00:02:44] Speaker 01: That seems to me to be an inaccurate statement, given the fact that his new bankruptcy petition wasn't filed until May 2nd. [00:03:02] Speaker 00: Your Honor, the Brightville letter [00:03:08] Speaker 00: not only contained the statement regarding the bankruptcy, and I'll try to get to address that directly in a moment, it did also contain some additional materials. [00:03:17] Speaker 01: I understand, but I want you to address the statement that there was a bankruptcy petition because it seems to me there wasn't. [00:03:23] Speaker 00: Well, no, Your Honor, if you look at page JA 150 is the discharge of a debtor in a Chapter 7 case, that date is March 24, 2009. [00:03:36] Speaker 00: on that document. [00:03:37] Speaker 01: But that's the next year. [00:03:41] Speaker 01: What I'm talking about is the Brightville letter says there's a current bankruptcy petition. [00:03:45] Speaker 01: You say that's information that DOD should have considered. [00:03:48] Speaker 01: In fact, it seems to me that that statement is inaccurate. [00:03:51] Speaker 01: There wasn't a bankruptcy petition until May 2nd. [00:04:01] Speaker 00: Your Honor, I will try to find that in the appendix. [00:04:05] Speaker 00: We believe that [00:04:06] Speaker 00: Even if that is the case, the Bright Bill letter did open the door to the information that the agency was looking for, among other things. [00:04:15] Speaker 01: But in terms of whether assuming, even assuming that you were correct, that there was a procedural violation here for not forwarding the Bright Bill letter, there's a question of whether that was a harmful error. [00:04:26] Speaker 01: If the Bright Bill letter was basically based on a false statement or inaccurate statement, [00:04:31] Speaker 01: then it's hard to see what the harmful error was in not forwarding it. [00:04:35] Speaker 00: Well, the harmful error is the question that would have gone to the WHS CAF isn't just that a bankruptcy petition had been filed. [00:04:46] Speaker 00: The question or the mitigating factors that they would have looked at is whether or not the employee is taking steps to alleviate or resolve the concerns. [00:04:56] Speaker 00: Those steps are reproduced on JA 132. [00:05:01] Speaker 00: So it's the mitigating factor that would have been addressed, even if that petition for bankruptcy had not been filed, is that the individual initiated a good faith effort to repay overdue creditors or otherwise resolve debts. [00:05:18] Speaker 00: And in this case, that's exactly what Mr. Brown did. [00:05:22] Speaker 00: And we understand that there may be that the Bright Bill letter would have certainly have been clearer [00:05:30] Speaker 00: But I think what the evidence shows is that it directly was responsive to the concerns raised in the SOR. [00:05:40] Speaker 00: It was evidence of the employee of the petitioner trying to resolve and address his debts, which he had already attempted to do earlier in 2005. [00:05:51] Speaker 01: Since DOD made it clear that any response had to be signed by the employee and that the employee had to notify them of any representation, and this write bill letter was not signed by the employee, why was there an obligation to forward it? [00:06:08] Speaker 00: Your Honor, and that goes back to our argument that if you look at the testimony of the security specialist Cohenhour, it's clear in addition to the DOD regulation that C8 [00:06:22] Speaker 00: 0.2, 0.2, 0.1, 0.1, that there was an obligation to assist. [00:06:29] Speaker 00: And if you look at the record, Lancaster, who's the prior security specialist, his failure to even contact Mr. Brown or to contact Mr. Brightfield is as unexplained as it is inexplicable. [00:06:45] Speaker 00: He certainly knew as the security specialist that the Brightfield letter was responsive. [00:06:51] Speaker 00: He knew that Mr. Brown intended to respond to the SOR. [00:06:55] Speaker 00: And there's no explanation for why, having had the Bright Bill letter for weeks, he failed to even inquire as to, is this what you intend as your response to the SOR? [00:07:06] Speaker 01: So what this means is that he had an obligation, once he received the Bright Bill letter, not necessarily to forward the Bright Bill letter, but to call the employee and say, you know, we can't consider this as a response because you didn't sign it. [00:07:19] Speaker 00: At a minimum to do that. [00:07:21] Speaker 00: And it's really inexplicable why he did not. [00:07:24] Speaker 00: They didn't call him to testify. [00:07:26] Speaker 00: He had left the agency. [00:07:27] Speaker 00: And you have the new security specialist, Mr. Kohenauer, who says he certainly would have done that. [00:07:33] Speaker 00: And in the breach, he would have forwarded that information, even if he didn't think it was a response to the SOR, because he conceded that that was not his decision to make. [00:07:47] Speaker 00: And had he forwarded it, [00:07:50] Speaker 00: to the WHSCAT, even if they had not considered it a response to the SOR, it still would have preserved Mr. Brown's ability to appeal the letter of denial that he received internally. [00:08:07] Speaker 04: I understand your argument that they had a duty to assist to the extent that they should have called Mr. Brown and told him, we've got this letter. [00:08:16] Speaker 04: Do you know anything about it? [00:08:18] Speaker 04: It's harder for me to accept the proposition that if I'm in a proceeding and some random person submits a letter purporting to be on my behalf, that the correct way to do it was that they should have forwarded that on. [00:08:31] Speaker 04: That can be extremely detrimental to employees if people in the organization are forwarding on material that the employee hasn't signed or even know about, right? [00:08:41] Speaker 04: So I'm in a little trouble with your suggesting [00:08:44] Speaker 04: In certain respects, it might not be helpful to the employee. [00:08:47] Speaker 04: It might be detrimental. [00:08:49] Speaker 04: And the employee ought to at least have the right to see it. [00:08:51] Speaker 04: So I'm a little troubled by your suggestion that there was an obligation on the agency to just forward the letter on. [00:08:57] Speaker 00: That may be possible, but that is not the case here. [00:09:00] Speaker 00: Mr. Brown had indicated that he intended to respond to the SOR. [00:09:05] Speaker 00: If, in your hypothetical, someone had indicated they didn't, [00:09:09] Speaker 00: Nobody. [00:09:10] Speaker 04: That's possible. [00:09:11] Speaker 04: Did he say my accountant, Mr. Bright, whatever this person's name is, is going to respond on my behalf? [00:09:17] Speaker 04: It's pretty risky to have people submitting things without your signature purportedly to be on your behalf. [00:09:23] Speaker 04: The agency wouldn't know if he'd even seen it or approved it. [00:09:28] Speaker 04: So what did he say was coming, that he was responding? [00:09:31] Speaker 04: He said he was going to respond. [00:09:33] Speaker 00: But if you look at the Brightfield letter, it's very clear. [00:09:36] Speaker 00: Under the circumstances here, the agency [00:09:40] Speaker 00: not only had a duty to assist, they should have known that that's what, at least that this was an attempt to satisfy that requirement. [00:09:46] Speaker 03: Well, the caption of the letter is helpful, right, in that regard? [00:09:50] Speaker 00: Absolutely, Your Honor. [00:09:51] Speaker 00: The entire letter, if you read it, is not a random person. [00:09:55] Speaker 00: It's on the attorney's letterhead. [00:09:57] Speaker 00: It provides his address, his phone number. [00:09:59] Speaker 00: It invites, feel free to contact me if you have any questions. [00:10:04] Speaker 00: Certainly if there was a question, they could have called him and said, [00:10:07] Speaker 00: Who are you? [00:10:08] Speaker 00: If that were the case, who are you? [00:10:10] Speaker 00: We don't ordinarily forward this information to the WHSCAT. [00:10:14] Speaker 00: They easily could have called Mr. Brown, who was there in the facility. [00:10:21] Speaker 00: This would have been a five minute conversation that would have given him the opportunity to perfect the response to the statement of reasons. [00:10:28] Speaker 00: It would have preserved his appeal rights. [00:10:32] Speaker 00: And it would have put the fact that ultimately, [00:10:36] Speaker 00: his debts are discharged. [00:10:38] Speaker 00: Ultimately, he does address and takes very responsible steps to address the agency's concerns. [00:10:46] Speaker 03: Are you also contending that, regardless of the Brightville letter and whether that should have been a red flag, that the [00:10:57] Speaker 03: POC would have at least had an obligation to, given that he already knew that Mr. Brown wanted to respond, that he had an obligation to explain to Mr. Brown how to seek an extension of time before the deadline expired. [00:11:11] Speaker 00: Certainly. [00:11:12] Speaker 00: That's certainly the case. [00:11:13] Speaker 00: And you see it from the testimony of Mr. Kohenauer. [00:11:17] Speaker 00: You see it in their regulation that we cannot deny, and I know the government points this out, Mr. Brown signed the statement of reasons. [00:11:25] Speaker 00: He signed the paperwork. [00:11:27] Speaker 00: And we've never disputed what that paperwork said. [00:11:30] Speaker 00: But in context, on the facts here, Mr. Lancaster had a duty, the agency had a duty, to at a minimum inquire. [00:11:41] Speaker 00: And that would have made a huge difference, both in the resolution of Mr. Brown's eligibility and his procedural rights with respect to the WHF. [00:11:52] Speaker 04: As things went down when he was called, not before, but after the deadline passed, right? [00:11:57] Speaker 04: Correct. [00:11:58] Speaker 04: OK, so I guess you have a problem with that. [00:12:00] Speaker 04: But he never, and it was suggested to him that he submit it late and ask for it. [00:12:09] Speaker 04: But in the ultimate, in the tardy reply filed by Mr. Brown, he never referenced the Breitfeld letter, right? [00:12:23] Speaker 00: He, well, you're right. [00:12:26] Speaker 04: I think it's a JA 142 and 143. [00:12:40] Speaker 04: And I don't see any reference. [00:12:42] Speaker 04: I mean, if we're here now, are we? [00:12:46] Speaker 00: It's not in this document, Your Honor. [00:12:48] Speaker 00: Mr. Brown did have a conversation. [00:12:50] Speaker 04: Well, that may have changed the complexion of what went down here. [00:12:54] Speaker 04: I mean, if he filed late and he said, [00:12:56] Speaker 04: This letter was sent. [00:12:57] Speaker 04: This represents my position. [00:12:59] Speaker 04: I wish it had been considered, and therefore, it ought to be considered in time and away. [00:13:03] Speaker 04: There's no look back to the Brightville letter when he ultimately does respond. [00:13:08] Speaker 00: I don't believe that's the case at all, Your Honor, because Mr. Brown had a conversation with Mr. Lancaster in that conversation, which he testifies about. [00:13:16] Speaker 00: I do believe there was a statement or there was discussion of, I think there was a mistake here. [00:13:22] Speaker 00: I will include a response. [00:13:26] Speaker 00: And that's repeated in Mr. Brown's ultimate reply to the notice of proposed removal. [00:13:34] Speaker 04: So what is your position that they ought to consider the Bright Bill letter or that they ought to consider the information he provided late? [00:13:43] Speaker 00: The procedural error that we believe Mr. Brown was harmed by is the agency's failure to inquire after receiving the Bright Bill letter [00:13:53] Speaker 00: And it's failure to forward the Brightville letter to the WHSCAF because those errors, which simply don't make sense in context, given that they knew it was coming. [00:14:04] Speaker 04: When did he complain about that? [00:14:05] Speaker 04: Why didn't he raise that? [00:14:06] Speaker 04: Shouldn't he have necessarily raised that when he provided his late submission to ask them to consider it? [00:14:13] Speaker 04: He doesn't reference the letter. [00:14:16] Speaker 04: So even if they had accepted this as timely, it wouldn't necessarily cover the Brightville letter, right? [00:14:24] Speaker 00: But that still wouldn't cure the procedural error. [00:14:27] Speaker 00: And looking at it after the fact, parsing down whether or not he could have submitted a later response after he had been past the deadline and not notified that the Bright Bill letter was not forwarded or deemed insufficient by Mr. Lancaster, which we have to presume, looking back at it wouldn't have changed it. [00:14:46] Speaker 00: What he did try to put forward at that time was a response to the allegations. [00:14:52] Speaker 04: But did he ever? [00:14:54] Speaker 01: I was just going to ask, what is the attachment to the Bright Bill? [00:14:58] Speaker 01: Because I did not plan to find that in the appendix. [00:15:05] Speaker 00: Your Honor, I don't know that that was in the record. [00:15:09] Speaker 00: I believe, and I'll look at the testimony, that that was evidence of the bankruptcy petition. [00:15:16] Speaker 00: But I don't have that 100%. [00:15:17] Speaker 00: I'll check that in the record. [00:15:19] Speaker 00: If I can reserve some time for rebuttal, see if I can locate that. [00:15:23] Speaker 01: Please, when you get up on rebuttal, address my question as to whether this statement about the filing of the petition in the Brightville letter, which seems to be the heart of the Brightville letter, was accurate or inaccurate, given that it appears that the petition wasn't filed until May. [00:15:38] Speaker 00: Yes, sir. [00:15:39] Speaker 00: If I can reserve what time it is. [00:15:41] Speaker 00: Yes. [00:15:41] Speaker 00: Thank you. [00:15:47] Speaker 02: Mr. Smith, please, the court. [00:15:49] Speaker 02: Mr. Brown was provided with very explicit instructions about how to respond to the statement of reasons. [00:15:56] Speaker 02: The letter of instructions was two pages, and in three separate paragraphs on those two pages, he was told that his response had to be from him personally. [00:16:04] Speaker 02: It had to be signed personally by him. [00:16:06] Speaker 01: What about the duty to assist here? [00:16:08] Speaker 01: Excuse me. [00:16:09] Speaker 01: What about the duty to assist? [00:16:10] Speaker 01: Why didn't somebody call him and say, this thing, this Brightville letter doesn't count. [00:16:16] Speaker 01: If you want to submit something, you've got to sign it. [00:16:19] Speaker 02: There is no duty to assist in the regulation. [00:16:22] Speaker 02: The regulation requires that he be informed of the right to respond, of the right to request an extension, that he be instructed as to how to respond. [00:16:33] Speaker 02: And those instructions did tell him that he had to respond in something that was signed personally by him and dated. [00:16:39] Speaker 02: And he didn't follow those instructions. [00:16:41] Speaker 02: That's the duty. [00:16:42] Speaker 02: And then the duty is to pass on an actual response. [00:16:45] Speaker 02: Mr. Coroner emphatically specified [00:16:48] Speaker 02: This was not a response. [00:16:49] Speaker 02: And it wasn't. [00:16:50] Speaker 02: It wasn't signed and dated by Mr. Brown in accordance with the instructions. [00:16:54] Speaker 04: And he admitted. [00:16:55] Speaker 04: What's bothering me about this case, as I understand there are rules, and the rules were clear, is that when we personally mess something up or send something to the wrong address or don't sign it, typically what happens is it's rolled over. [00:17:10] Speaker 04: You get it back telling you, this is improper. [00:17:13] Speaker 04: We can't accept it because it doesn't comply with this. [00:17:16] Speaker 04: And normally, that gives you sufficient time to fix your mistake and proceed. [00:17:21] Speaker 04: So except for the duty to assist, I don't really know how broad or narrow that is. [00:17:26] Speaker 04: But it seems to me the normal practice is if someone submits something and it's inadequate, you should do something with it, like send it back for him so that there can be something cured. [00:17:38] Speaker 02: Well, Mr. Bancaster didn't testify, but the time had not run out. [00:17:42] Speaker 02: So he was waiting. [00:17:43] Speaker 02: He was just waiting for Mr. Brown to provide a complete response. [00:17:47] Speaker 02: But then he did wait for the time to run out. [00:17:48] Speaker 03: I mean, there was plenty of time between when he got that and when he, after the deadline, went back to Mr. Brown and said, oh, by the way, this isn't enough. [00:17:58] Speaker 02: He didn't say, this is not enough. [00:18:00] Speaker 02: He said, your deadline's over. [00:18:01] Speaker 02: That's what he told him. [00:18:02] Speaker 02: And then Mr. Brown said, well, I [00:18:05] Speaker 03: Judge Pro's point well taken in that he had plenty of time to say, this isn't enough. [00:18:12] Speaker 02: That was not his obligation, because his obligation was not to go back and say, this is not enough. [00:18:16] Speaker 02: His obligation was to take a response, if one came in that met the requirements, and forward it. [00:18:23] Speaker 02: When none came in, he simply said to Mr. Brown, nothing came in that constitutes a response, and now your time is up. [00:18:31] Speaker 01: That's when Mr. Brown. [00:18:32] Speaker 01: Well, so why doesn't he have an obligation to say, [00:18:34] Speaker 01: We got this letter, and that can't be considered to be a response. [00:18:39] Speaker 01: So you should know that we're not going to consider it. [00:18:42] Speaker 02: His obligation is just to make sure that Mr. Brown understands the instructions and forwards something that does constitute a response, not to judge it, not to respond to him, but to take anything that he provides. [00:18:52] Speaker 02: And he was waiting. [00:18:53] Speaker 02: That could have been part of a response. [00:18:56] Speaker 02: It was something that came in. [00:18:57] Speaker 02: and had it been supplemented by a signed writing. [00:18:59] Speaker 01: So the cases that are filed in this court and they're procedurally deficient, we should just remain silent until the time runs and then throw out the case? [00:19:08] Speaker 02: Well, in this case, Mr. Lancaster is not a court. [00:19:11] Speaker 02: He is an individual who is designated to receive everything. [00:19:14] Speaker 01: No, no. [00:19:14] Speaker 01: What I'm saying is that's what courts do, particularly when they get things from individuals that don't comply with the rules. [00:19:23] Speaker 01: We say, you know, this doesn't comply with the rules. [00:19:25] Speaker 01: We can't accept it. [00:19:26] Speaker 01: Fix it. [00:19:27] Speaker 02: Yes, if something can't be filed because it doesn't comply with the rules, then yes, it has to be rejected. [00:19:32] Speaker 02: It's not that this had to be rejected. [00:19:34] Speaker 01: But we tell people that it's rejected so they can fix it. [00:19:39] Speaker 02: But what I'm trying to say is the distinction is that this is not rejected. [00:19:42] Speaker 02: This was something that Mr. Lancaster could hold onto. [00:19:45] Speaker 02: And had Mr. Brown followed it up with the written representation that Mr. Brightley was in fact his attorney and something signed by him [00:19:56] Speaker 02: then that all could have gone forward. [00:19:58] Speaker 02: It wasn't that it was rejected to send back to him. [00:20:01] Speaker 02: It was just he was waiting for more information to come in. [00:20:03] Speaker 04: But since neither Mr. Brown nor Mr. Bright knew that it was not accepted, why would they have done it? [00:20:09] Speaker 04: I mean, I understand the logic of what you're saying, but it requires Mr. Lancaster picking up the phone and calling Mr. Brown and saying, you should submit something because we've got this filing and we can't accept it unless it's got your name. [00:20:20] Speaker 04: Let me ask you one further question. [00:20:21] Speaker 04: It's my understanding, but I don't have the site from the record, [00:20:25] Speaker 04: Even after the deadline passed and Mr. Lancaster finally did call Mr. Brown, didn't he suggest that Mr. Brown submit a response and apologize for his tardiness and move forward with it? [00:20:40] Speaker 04: So he obviously thought that even a tardy response, if Mr. Brown explained the circumstances, would be accepted, right? [00:20:49] Speaker 02: What he thought we can't know, Mr. Lancaster didn't testify. [00:20:52] Speaker 04: Well, he obviously wasn't just jerking him around and telling him to file something for the sake of filing it, so he obviously had some expectation that even a late filing under these circumstances might well be considered, right? [00:21:04] Speaker 02: Again, I can't say that that was his expectation. [00:21:06] Speaker 02: It may have been a hope. [00:21:07] Speaker 02: It may have been just a Hail Mary suggestion. [00:21:09] Speaker 02: It's late, but you know what? [00:21:10] Speaker 02: Maybe if you explain that it's late, it can't hurt. [00:21:13] Speaker 02: So Mr. Brown said, I admit this is late. [00:21:16] Speaker 02: He didn't refer to the write bill letter. [00:21:17] Speaker 02: He didn't say I tried to respond timely. [00:21:20] Speaker 02: He said, this is late. [00:21:21] Speaker 02: I was trying to gather information. [00:21:23] Speaker 02: I hope you can accept this. [00:21:23] Speaker 04: Well, what's the procedure? [00:21:25] Speaker 04: Are there regulations that deal with accepting late filings? [00:21:28] Speaker 04: Is there a history of their having accepted late filings? [00:21:31] Speaker 02: There's nothing about that in the record, Your Honor. [00:21:33] Speaker 02: And the initial letter explains that if a response isn't received within the time period, including any extensions. [00:21:41] Speaker 02: And Mr. Brown had sought one extension, and he had been granted one extension. [00:21:45] Speaker 02: However, he never sought another extension, even though his letter, his tardy letter says, [00:21:49] Speaker 02: I'm late because I was looking for more information. [00:21:52] Speaker 02: He never sought another extension to get that information together. [00:21:56] Speaker 02: There's nothing in the record that suggests that a late response is acceptable or this provision is a provision for extensions, but not for a late response. [00:22:04] Speaker 03: Well, the first extension was so that he could get the bankruptcy filing ducks in a row. [00:22:09] Speaker 03: At that point, he didn't seek a second extension because he thought he already had them in a row and had told Mr. Lancaster about that. [00:22:17] Speaker 02: Well, that's not what his May 5th letter says. [00:22:19] Speaker 02: His May 5th letter says, I'm really sorry I didn't get this in in time because I was still gathering information. [00:22:24] Speaker 02: And that's his own admission that he submitted late. [00:22:26] Speaker 03: I guess, you know, I don't understand. [00:22:28] Speaker 03: I mean, this has got to be just about the most sympathetic [00:22:32] Speaker 03: employee in all the circumstances that led to these deaths and his efforts to try to clean them up. [00:22:42] Speaker 03: What would have been the prejudice to the agency from allowing a technical reply to go forward and saying the agency supports this? [00:22:54] Speaker 02: Okay, and let me give you three responses to that. [00:22:56] Speaker 02: First of all, in terms of a response to the statement of reasons, it really wasn't one. [00:22:59] Speaker 02: Even the Brightville letter wasn't. [00:23:00] Speaker 02: Yes, it addressed his effort to clean up by referring to a bankruptcy. [00:23:05] Speaker 02: And I'm not sure that bankruptcy wasn't filed until May 2nd, because I haven't been able to find anything in the record that suggests it was before that. [00:23:11] Speaker 02: But to the extent that it refers to a current bankruptcy petition, it referred to some effort to resolve the debt. [00:23:15] Speaker 02: It did not address the issues that led him to incur the debt in the first place, which the statement of reasons... Wait a second. [00:23:22] Speaker 01: Why isn't that significant? [00:23:23] Speaker 02: It is significant because the statement of reasons explicitly identified [00:23:27] Speaker 01: the fact that he incurred debt in the first place was indicative... Yes, that was part of the reason, but the rest of it was that he hadn't done anything to fix it. [00:23:35] Speaker 01: And the filing of a bankruptcy petition is something to fix it. [00:23:38] Speaker 01: So it's very pertinent, isn't it? [00:23:41] Speaker 02: It addresses that aspect. [00:23:42] Speaker 02: It does not address at all the aspect that reflects on his [00:23:46] Speaker 02: reliability and trustworthiness in character in incurring the debt in the first place. [00:23:51] Speaker 01: But don't you have to admit that it's material to the decision that was rendered that if he had, in fact, filed a bankruptcy petition, he was taking steps to take care of it, which they weren't aware of? [00:24:02] Speaker 02: That I would have to admit, Your Honor. [00:24:04] Speaker 02: However, and then I wanted to continue and answer the rest of this question, even if this court, because I want to make sure I get to this, even if this court were to disagree [00:24:14] Speaker 02: with both the administrative judge and the full board that this was error. [00:24:19] Speaker 02: Mr. Brown has utterly failed to demonstrate that it was harmful error. [00:24:23] Speaker 01: Well, that's what we're just talking about. [00:24:25] Speaker 01: It's harmful error because it is directly addressing part of their reasons for saying that he didn't satisfy those security requirements. [00:24:34] Speaker 02: But to show harm, Mr. Brown has to demonstrate that the agency would have reached a different decision on the adverse action, which was the removal action. [00:24:42] Speaker 02: In order for them to have likely reached a different result on that, the agency, the adjudicating facility, would likely have had to come to a different decision on the denial of his eligibility. [00:24:57] Speaker 02: That gets into the merits of the actual eligibility determination, which neither the board or this court can look to. [00:25:03] Speaker 01: So Mr. Brown. [00:25:04] Speaker 01: So in other words, nobody has the ability to ever make harmless error determination because it's beyond our jurisdiction. [00:25:10] Speaker 01: I would disagree with that respectfully, Your Honor. [00:25:12] Speaker 01: So that means that any procedural violation can never be redressed because we are without jurisdiction to determine whether it was harmful error. [00:25:19] Speaker 02: I would respectfully disagree with that, Your Honor. [00:25:21] Speaker 02: In, for example, the Romero case, the error that was asserted, although it ultimately was not found to have been committed, the error that was asserted was that the adjudicating body that made the security determination lacked authority. [00:25:37] Speaker 02: Now, had that error been actually found to exist, it would have rendered that security clearance just simply a null and void. [00:25:44] Speaker 02: And it wouldn't have involved the board or this court into the actual merit. [00:25:48] Speaker 02: So that would be an instance where an allegation of harmful error could be sustained. [00:25:52] Speaker 04: Why is it an involvement in the merits? [00:25:53] Speaker 04: I mean, let's assume hypothetically that the board said, because of all of these debts and because he hasn't filed for bankruptcy and we see nothing in the record to indicate that he's tried to overcome these financial difficulties, [00:26:06] Speaker 04: we are denying him the clearance. [00:26:09] Speaker 04: Wouldn't we have jurisdiction to look at that letter and say, if there was error, it was harmful error? [00:26:16] Speaker 04: Because we know what the... We don't have jurisdiction on that either? [00:26:19] Speaker 02: The court doesn't have jurisdiction to look at the merits of what the adjudicating facility, because that's what we would have needed the adjudicating facility to change their adjudication for the agency to have likely not removed him. [00:26:33] Speaker 02: As long as that [00:26:34] Speaker 02: eligibility was denied, that removal was not going to change. [00:26:38] Speaker 02: But if we know the reason it was denied, and we think that reason was error, that would require this court to predict what the adjudicating body would have done on the merits of his security or eligibility. [00:26:51] Speaker 04: Maybe you didn't understand my question, because I don't know. [00:26:53] Speaker 04: If the adjudicating body had a decision that said, we are affirming or we're denying his clearance because of the following, and we conclude [00:27:04] Speaker 04: that there was error in that. [00:27:07] Speaker 04: Well, you say we can't review what they've said. [00:27:09] Speaker 04: We're not second guessing their decision, but we're relying on if they relied on X, and we've concluded there was an error with regard to that. [00:27:17] Speaker 04: You're saying we can't. [00:27:18] Speaker 02: So I really want to make sure I understand the question. [00:27:20] Speaker 02: So you're hypothetical, which is not his case. [00:27:23] Speaker 02: Right. [00:27:24] Speaker 04: But let's assume the adjudicating authority says, we are denying this because he never filed anything. [00:27:30] Speaker 04: He didn't even try to file anything late. [00:27:32] Speaker 04: And we conclude based on the record that that was wrong. [00:27:36] Speaker 04: And in fact, he did try to file something late. [00:27:39] Speaker 04: And we know that was the reason for their decision. [00:27:43] Speaker 02: And the adjudicating facility actually changes their adjudication so that they don't deny him eligibility? [00:27:49] Speaker 02: No, of course not. [00:27:50] Speaker 02: That's the only basis on which the board. [00:27:52] Speaker 03: Wouldn't the harm be in not letting the adjudicated facility to at least consider the actual facts? [00:27:59] Speaker 02: The court can't look at that. [00:28:00] Speaker 03: The court can look at whether the agency... I'm not saying they look at whether they have to consider it. [00:28:04] Speaker 03: I'm saying the harm is just not giving them the opportunity to look at it. [00:28:07] Speaker 02: No, the harm has to go to whether the agency likely would have reached a different result on the removal action itself. [00:28:13] Speaker 02: And that would only have happened if we had a different decision on the eligibility. [00:28:19] Speaker 02: which could have happened if the appeal had been... But could is not likely to, and for the court to inquire into whether it likely would involve the court into the merits of that eligibility determination. [00:28:28] Speaker 01: Well, couldn't we at least send it back to have them consider the question of whether they would have reached a different decision if they had the right information? [00:28:36] Speaker 02: But the court can't send it back to the adjudicating facility because the [00:28:39] Speaker 02: adjudicating facility is not before this court. [00:28:41] Speaker 01: It's only the agency's decision. [00:28:43] Speaker 01: We can send it back to the board to have them send it back to the agency or ask the board to have testimony from the agency representative as to what they would have done. [00:28:55] Speaker 02: But even the board can't get involved in the adjudication aspect of the security clearance adjudication. [00:29:00] Speaker 02: They can't get involved in the merits of that of what the agency adjudication would have done or wouldn't have done. [00:29:05] Speaker 01: They couldn't even ask the agency what it would have done. [00:29:08] Speaker 02: I don't believe so, Your Honor. [00:29:10] Speaker 02: I believe that that would involve the board in the actual merits determinations by the adjudicating facility. [00:29:16] Speaker 04: I thought the answer would be simpler than that, which is that we have to establish that there was harm. [00:29:21] Speaker 04: I thought, I understood your position to be, we have to establish here that there was harmful procedural error. [00:29:26] Speaker 04: So we have to be able to answer the question here as to whether it would have been change in the outcome. [00:29:31] Speaker 04: Is that not your position? [00:29:32] Speaker 02: Yes, that is why I am saying, Your Honor. [00:29:37] Speaker 02: There are no further questions? [00:29:39] Speaker 02: Thank you. [00:29:48] Speaker 03: How do you articulate the harmful error? [00:29:51] Speaker 00: The harmful error is, again, first of all, likely is not certainly, no more than it may be. [00:29:57] Speaker 00: Likely is based on the evidence that's in front of this court, whether it's likely it would have affected the outcome. [00:30:03] Speaker 04: Is that the standard, likely? [00:30:05] Speaker 00: Likely. [00:30:07] Speaker 00: and looking at what we have here on looking at the agency's own regulations. [00:30:11] Speaker 01: Yes, Your Honor. [00:30:17] Speaker 00: Forgive me for misspeaking. [00:30:18] Speaker 00: But I still believe that first of all, Romero is still good law. [00:30:23] Speaker 00: It is on all fours with what we're arguing here. [00:30:26] Speaker 00: And this court does have jurisdiction to consider whether the agency followed its own procedures. [00:30:32] Speaker 00: That concession was made in Eagan. [00:30:34] Speaker 00: And it's repeated and outlined in Romero. [00:30:36] Speaker 00: And that is still the law. [00:30:37] Speaker 00: And that is still exactly what we are asking this court to do. [00:30:41] Speaker 00: We are not asking this court to engage in a second guessing of whatever the- No, but you're conflating the two issues. [00:30:48] Speaker 04: And as I understand it, they're separate issues. [00:30:50] Speaker 04: Even if we find that the agency didn't comply with its own rules or whatever we find, we still have to establish that there was harmful procedural error in terms of the error that was committed by the agency. [00:31:02] Speaker 00: Correct. [00:31:03] Speaker 00: And we believe that that's, on this record, shown that that is likely exactly what happened if you look at, for one thing, the loss of his appeal rights. [00:31:15] Speaker 00: That's a very persuasive, we believe, factor that shows that it likely would have led to a different result. [00:31:22] Speaker 03: Right. [00:31:22] Speaker 03: So that's the question I was asking. [00:31:24] Speaker 03: So your allegation of harmful error is that the loss of his appeal rights, because had he had the right to appeal, [00:31:31] Speaker 03: then it's likely that there would have been a different determination. [00:31:35] Speaker 00: Correct. [00:31:36] Speaker 00: Under the agency's own criteria, under the regulations and policies that they have produced. [00:31:43] Speaker 01: So the different result is that the issue had been considered on the merits rather than his appeal dismissed for failure to respond. [00:31:54] Speaker 01: Yes, Your Honor. [00:31:55] Speaker 04: But don't we have to look at whether or not, therefore, if he had the right to appeal, he would be likely to prevail on appeal? [00:32:02] Speaker 04: Clearly, he was denied the right to appeal. [00:32:04] Speaker 04: The question is whether or not it's likely that he would prevail on appeal. [00:32:11] Speaker 00: That goes back to one of our other arguments, which is we shouldn't forget that Egan and Conyers are narrow exceptions. [00:32:18] Speaker 04: No, but can you answer my question? [00:32:21] Speaker 04: It's true, right, that your argument would have to be that he would be likely to prevail if he had had the right to file an appeal? [00:32:28] Speaker 00: We certainly believe he would have been likely to prevail. [00:32:31] Speaker 00: That's correct. [00:32:33] Speaker 00: And that's looking again at the agency's own criteria that they have produced. [00:32:39] Speaker 04: Well, what say you to Ms. [00:32:40] Speaker 04: Stern's argument that this is all outside of our jurisdiction? [00:32:45] Speaker 00: Not at all, because again, as Judge Dyke pointed out, [00:32:49] Speaker 00: The remedy here would be a remand back to the agency. [00:32:54] Speaker 00: The decision, the final decision, would go back to the agency because this is a procedural error. [00:33:02] Speaker 00: It's not a merits error. [00:33:03] Speaker 00: It's not a merits analysis. [00:33:05] Speaker 00: It's a procedural error that goes back to the agency for the agency's consideration. [00:33:11] Speaker 04: Can you answer, before your time runs out, Judge Dyck's very first question? [00:33:15] Speaker 00: Yes, and I wanted to get to that. [00:33:17] Speaker 00: I have a partial answer. [00:33:20] Speaker 00: I'm forced to confess I don't have in the appendix or in the record the date of the specific date of the second filing of bankruptcy. [00:33:28] Speaker 00: However, with respect to what was attached to Mr. Brightville's March letter on JA 148, [00:33:39] Speaker 00: Mr. Brown explains in his reply that it was another letter, another copy of his creditors, which were listed on his bankruptcy petition. [00:33:51] Speaker 00: And so it was responsive to the agency's criteria. [00:33:56] Speaker 00: He was attempting to address the concerns that the agency raised in the SOR. [00:34:04] Speaker 00: Just because I say I have very little time left with respect to the due process argument, [00:34:09] Speaker 00: Again, Conyers and Northover and Egan, whether Conyers was an expansion or whether it was a clarification, the heart of those cases now, as they are the law, is that it is the merits or the substance of the agency's security determination which a non-expert third party is not equipped or does not have jurisdiction to consider. [00:34:38] Speaker 00: requiring the agency to simply have a deciding official with the authority to make that determination does not look to what the agency's actual merits or substantive analysis is. [00:34:50] Speaker 00: And it is also consistent with the agency's own policy, which says in each case must be judged, and I meant 407 in the appendix, on its own merits and final determination remains the responsibility of the specific department or agency. [00:35:08] Speaker 00: In this case, that was DFAS. [00:35:12] Speaker 00: And so requiring a deciding official who could have, in fact, changed the outcome does not offend Egan. [00:35:21] Speaker 00: And it is entirely what the Fifth Amendment requires. [00:35:26] Speaker 00: And for these reasons, we ask that you reverse the bill. [00:35:29] Speaker 04: Thank you. [00:35:29] Speaker 04: We thank both parties, and the case is submitted. [00:35:32] Speaker 04: That concludes our proceedings for this meeting.