[00:00:29] Speaker 03:
Our final case this morning is number 153195, Cobb versus Merit Systems Protection Board.

[00:00:35] Speaker 03:
Mr. Edmonds.

[00:00:36] Speaker 04:
Thank you, Your Honor.

[00:00:37] Speaker 04:
Your Honors may please the court.

[00:00:39] Speaker 04:
There are two errors that the board committed below in this case that require a reversal.

[00:00:43] Speaker 04:
And I think the first of them is fairly straightforward.

[00:00:48] Speaker 04:
The requirement for Ms.

[00:00:49] Speaker 04:
Cobb before the board was that she present, in order to be entitled to a jurisdictional hearing, was that she present evidence which, if proven,

[00:00:58] Speaker 04:
would establish the board, or allegations which have proven would establish the board's jurisdiction.

[00:01:02] Speaker 04:
She did that.

[00:01:04] Speaker 04:
She alleged that she was, based on her record with the Postal Service of over 10 years of service, based on her expectation, based on what happened to others similarly situated at the same location at which she was hired, that she was, for all practical purposes, a permanent employee.

[00:01:24] Speaker 04:
This was not a job where she went in

[00:01:26] Speaker 04:
to the Postal Service and expected to be terminated at the end of a period of time.

[00:01:32] Speaker 04:
In fact, she understood that time to be her vacation time.

[00:01:37] Speaker 04:
And she was, of course, paid out for her accrued leave.

[00:01:41] Speaker 04:
What the government and the board argue and what they do repeatedly in the board's decisions and in the briefing is treat this as if it's a substantial evidence case.

[00:01:52] Speaker 04:
They treat it as if Ms.

[00:01:54] Speaker 04:
Cobb's allegations

[00:01:56] Speaker 04:
are too conclusory or are just not sufficient.

[00:01:59] Speaker 04:
She did not submit anything to contradict the documentary evidence provided by the SF50s that the Postal Service submitted.

[00:02:07] Speaker 01:
And what she asked you, I mean, hypothetically, let's say we have a record that shows every single SF50 showed that even though she'd been there for 10 years, she was on 10 consecutive one-year term limited appointments.

[00:02:23] Speaker 01:
in the face of that overwhelming evidence, sufficient for her to say, well, I thought I was on a career appointment.

[00:02:31] Speaker 04:
I think, Your Honor, where you get to the problem is that you're then looking at whether that's overwhelming evidence.

[00:02:36] Speaker 01:
Well, OK, take aside my word overwhelming.

[00:02:40] Speaker 01:
Hypothetically, the only record evidence we have, the only documentary evidence is SF50 showing all of it's a term appointment.

[00:02:48] Speaker 01:
And the employee comes in and says, I thought I was on a career appointment.

[00:02:53] Speaker 01:
Is that sufficient to be a non-frivolous allegation?

[00:02:58] Speaker 04:
There is a line that is somewhere in between where you have an employee coming forward and saying, I am a temporary employee.

[00:03:04] Speaker 04:
I was hired for one temporary shift.

[00:03:08] Speaker 04:
And therefore, I am entitled to restoration rights if you ignore the argument number two at this stage.

[00:03:16] Speaker 04:
There's a line between that and this case.

[00:03:19] Speaker 01:
And I think your question would be- Where is the line, though?

[00:03:23] Speaker 01:
It seems to me that basically, I mean, there's a lot of term appointments here.

[00:03:29] Speaker 01:
There's no record evidence that you cited to, I think, that suggests that she was ever appointed on an official document to a career civil service job.

[00:03:39] Speaker 01:
Your argument basically is that she had expected to be appointed to one.

[00:03:45] Speaker 01:
if she had not been injured.

[00:03:47] Speaker 01:
But that seems to me to be different than she was actually a career appointee.

[00:03:52] Speaker 04:
Well, here in that everyone else was.

[00:03:53] Speaker 04:
I mean, everyone else at her location was appointed to a career position.

[00:04:00] Speaker 04:
Later though, right?

[00:04:01] Speaker 04:
Later on.

[00:04:02] Speaker 04:
Well, I'm not sure when, Your Honor, and in truth, her allegations would be more specific because she would get on the stand and testify at an evidentiary hearing.

[00:04:11] Speaker 01:
But those people still had to

[00:04:13] Speaker 01:
I mean, those people weren't also in appointments, term appointments that were automatically converted.

[00:04:19] Speaker 01:
They had to apply for and be accepted into a career appointment position, just like she was given the opportunity to do, right?

[00:04:27] Speaker 04:
Well, the collective bargaining agreement letter that I think is at A124 through 127, there's a, I guess, a summary of it.

[00:04:34] Speaker 04:
And then the actual letter shows that, in fact, people that were appointed with it, I mean, it actually proves her claim.

[00:04:40] Speaker 04:
that everyone else was transitioned into this CCA position.

[00:04:45] Speaker 04:
And then from that, it says explicitly, and I think it's on A124, possibly A125, that they could then, you know, they would then have the opportunity for permanent status.

[00:04:59] Speaker 04:
So I think that the answer is that everyone was.

[00:05:03] Speaker 04:
And that the only reason that she wasn't, and I think the MSPB actually acknowledges this on page six of the board's brief,

[00:05:10] Speaker 04:
that these people could do this.

[00:05:13] Speaker 04:
And I think that her allegation is that the only reason she wasn't given that similar opportunity was because she was out, because she was injured twice, in fact, on the job.

[00:05:21] Speaker 01:
But here's the problem.

[00:05:23] Speaker 01:
It seems like you're going backwards on this.

[00:05:26] Speaker 01:
You're arguing that if

[00:05:27] Speaker 01:
that if she'd been given her restoration rights properly, she would have been a career employee.

[00:05:34] Speaker 01:
And therefore, she would have been entitled to appeal to the board to argue that her restoration rights weren't given properly.

[00:05:41] Speaker 01:
But in order to appeal to the board under OPM's regulation, you can't be a time-limited employee.

[00:05:48] Speaker 04:
Well, I think, Your Honor, that gets to the second argument, which is whether or not that's correct, whether that's correct interpretation of the regulation and whether that's

[00:05:57] Speaker 04:
Regulation, if that is a correct interpretation of the regulation, and that's the interpretation that the board has taken, is a correct interpretation of the statute.

[00:06:07] Speaker 01:
OK.

[00:06:07] Speaker 01:
I'd like to get to that, too, because I think that's a little confusing here.

[00:06:10] Speaker 01:
Your argument is that that's inconsistent with the statute to only give appeal rights to, I'm going to use career employees as a shorthand.

[00:06:19] Speaker 01:
I don't mean it to be some kind of term of art.

[00:06:21] Speaker 01:
I mean to distinguish it from time-limited planning.

[00:06:24] Speaker 01:
But the statute doesn't give any appeal rights, does it?

[00:06:27] Speaker 01:
The statute itself does not confer appeal rights.

[00:06:29] Speaker 01:
So if OPM elected to, it could have chosen not to give anybody appeal rights over restoration claims, right?

[00:06:38] Speaker 04:
That is an interesting point, Your Honor, and I'm not sure I'm able to answer that right here, because I do not recall seeing the appeal rights in a statute.

[00:06:47] Speaker 04:
But I think you're making a point.

[00:06:48] Speaker 01:
Well, in Chapter 75, in disciplinary matters,

[00:06:51] Speaker 01:
It gives you appeal rights if you have a suspension for more than 14 days, but no appeal rights if it's less than 14 days.

[00:06:58] Speaker 01:
So there are plenty of statutes that distinguish between appeal rights and non-appeal rights.

[00:07:02] Speaker 01:
And this is an instance where there's no appeal rights whatsoever.

[00:07:05] Speaker 01:
And OPM, exercising another separate statutory authority, which allows it to provide for appeals to the board, said, we're going to give it to career.

[00:07:15] Speaker 01:
We're not going to give it to temporary.

[00:07:17] Speaker 01:
Is that inconsistent with the statute that didn't give appeal rights at all?

[00:07:21] Speaker 04:
I'm not certain that in the statute, as I sit here today, because I haven't thought of the point that Your Honor raises, that there is nothing in any of the statutes that provides for, and not this specific 8151, but in the whole act or elsewhere in

[00:07:42] Speaker 04:
Title 5 of the United States Code that does not confer an appeal right here.

[00:07:48] Speaker 04:
But I think if you assume that it doesn't... Let's assume it does.

[00:07:51] Speaker 04:
Let's assume it doesn't.

[00:07:52] Speaker 04:
I think that you then have to... There has to be a basis for OPM and its regulations to distinguish between the two that is not arbitrary.

[00:08:04] Speaker 01:
And I am not aware of anything that... Well, isn't that inherent in...

[00:08:09] Speaker 01:
the civil service system as a whole that term-limited employees generally don't have appeal rights to the board over large swaths of different actions.

[00:08:20] Speaker 01:
Even if they're term-limited employees that serve for 20 years on one-year appointments,

[00:08:25] Speaker 01:
they don't have an appeal right.

[00:08:27] Speaker 01:
So isn't that per se a reasonable distinction that OPM could have made between term-limited employees and career employees?

[00:08:34] Speaker 04:
I don't think it's per se a reasonable distinction because you have here a specific statute.

[00:08:39] Speaker 04:
It has to be tethered to the statute.

[00:08:41] Speaker 04:
There are other statutes that govern appeal rights and other regulations.

[00:08:44] Speaker 04:
And those decisions that, for example, would not allow someone in Ms.

[00:08:49] Speaker 04:
Cobb's position to appeal to the board if it were a removal action, for example,

[00:08:55] Speaker 04:
Those are based on different statutes and on different policies.

[00:08:58] Speaker 04:
And I think the court would have to look at each individual one to see if this distinction that OPM drew is one that is reasonable.

[00:09:07] Speaker 04:
But I think that it's not something that OPM drew in the first place.

[00:09:11] Speaker 04:
OPM nowhere signified an intent to determine the appellate rights.

[00:09:17] Speaker 04:
It purports in the regulation, if you read it as the board and the United States suggest,

[00:09:23] Speaker 04:
to determine what restoration rights are there.

[00:09:26] Speaker 04:
It's not purporting to determine who has the right to appeal, because in the regulation, if anyone has restoration rights, they're given the right to appeal to the board.

[00:09:36] Speaker 04:
So I don't think that's a distinction that OPM drew.

[00:09:39] Speaker 01:
And I don't think it's a distinction that wouldn't be arbitrary given the... I get your point.

[00:09:44] Speaker 01:
I think there is an intention here, because the regulation specifies that it

[00:09:49] Speaker 01:
the restoration rights only applies to non-time limited employees.

[00:09:58] Speaker 01:
I think that's maybe the correct reading.

[00:10:02] Speaker 01:
That seems to me about restoration rights to be inconsistent with the statute potentially.

[00:10:09] Speaker 01:
But the statute doesn't speak to appeal rights.

[00:10:12] Speaker 01:
So they could have term-limited employees' appeal rights, but maybe not restoration rights.

[00:10:18] Speaker 01:
And I suppose your best argument would be that's arbitrary because this regulation doesn't really do that.

[00:10:25] Speaker 01:
It tries to exclude term-limited employees altogether.

[00:10:28] Speaker 01:
Right.

[00:10:29] Speaker 01:
And I think that that's the case.

[00:10:30] Speaker 04:
I think they weren't dealing with appeal rights when they drafted this regulation.

[00:10:34] Speaker 04:
And maybe that's something they could have hung their hat on if they had

[00:10:37] Speaker 04:
engaged in rulemaking that considered this and that was intended to do that.

[00:10:43] Speaker 04:
But if that reading of the regulation is correct, and I think the court understands the reading that I'm arguing for, which is something that would avoid the tension with the controlling statute if that were the correct reading to be employed.

[00:10:57] Speaker 01:
Well, I don't know how we get around their regulation, except for finding it

[00:11:04] Speaker 01:
arbitrary and capricious, which I'm not sure you've argued for in this way, because it seems to me that the regulation is very plain on its face, that it only applies to appointments without time limitation or this other taper thing, which I know is not at issue.

[00:11:21] Speaker 01:
And so if the regulation only applies to appointments without time limitation, it can't apply to term-limited employees, including the appeal rights section of that regulation.

[00:11:34] Speaker 04:
Correct, Your Honor.

[00:11:34] Speaker 04:
I think that the interpretation, the question is where the clause that begins with who was separated or furloughed, where that goes.

[00:11:41] Speaker 04:
And whether that's modifying the clause immediately preceding it, or whether that's modifying the original beginning of the sentence that talks about any employee of an agency of the United States.

[00:11:53] Speaker 04:
And one argument supporting the construction that the who applies the wholly-owned instrumentality of the United States is

[00:12:02] Speaker 04:
The fact that regulations are supposed to be interpreted consistently with the controlling statutory authority to avoid that tension.

[00:12:11] Speaker 01:
Well, if that's the case, then wouldn't we interpret it as allowing restoration rights to temporary employees, but not appeal rights?

[00:12:21] Speaker 01:
Because they said no appeal rights and no restoration rights.

[00:12:24] Speaker 01:
But clearly under the statute, they're entitled to restoration rights.

[00:12:27] Speaker 04:
Well, clearly they're entitled to restoration rights.

[00:12:29] Speaker 04:
The way the regulation goes, the series of regulations, is that if you have restoration rights, you just get appeal rights.

[00:12:36] Speaker 04:
So they didn't draw that distinction.

[00:12:38] Speaker 04:
And I think that's the problem.

[00:12:40] Speaker 04:
The agency didn't actually do it.

[00:12:42] Speaker 01:
So the court... I'm not sure whether they did or not.

[00:12:46] Speaker 01:
It's hard to tell what they did.

[00:12:47] Speaker 04:
Well, I think the way this is structured, what they intend to do is give appeal rights to everybody who is contained in this first provision and everybody who has them.

[00:12:59] Speaker 04:
If you look at the regulation as a whole, and I don't have the actual provision.

[00:13:03] Speaker 01:
I mean, the problem is, for me, is this regulation seems to be a mashup of two different kinds of restoration rights.

[00:13:11] Speaker 01:
And so they added in these recovery from injury restoration rights to the return from uniformed services rights.

[00:13:20] Speaker 01:
And the statute for uniformed services, I think, makes clear that it only covers

[00:13:26] Speaker 01:
career employees.

[00:13:28] Speaker 01:
You have no restoration right if you are a term-limited employee at all under that statute.

[00:13:32] Speaker 01:
Whereas your statute may cover term-limited employees, so it makes sense that the regulation for uniform services excludes term-limited employees from restoration rights altogether.

[00:13:45] Speaker 01:
But when they added in the return from injury people, they didn't seem to modify the language.

[00:13:52] Speaker 01:
I don't know what they did altogether here.

[00:13:54] Speaker 04:
Well, what they did was they, this is it, right?

[00:13:59] Speaker 04:
And the statute 8151 simply says that it applies to both, both classes.

[00:14:06] Speaker 04:
Both they recovered within one year and they recovered after one year.

[00:14:11] Speaker 04:
It would be arbitrary if the regulation were effective.

[00:14:15] Speaker 01:
I know you're into your rebuttable time, but are you contending that she was recovered within one year and has an unconditional right or that she was recovered beyond one year and that they have to show that it wasn't arbitrary and capricious not to?

[00:14:29] Speaker 01:
She's clearly only partially recovered in this case.

[00:14:32] Speaker 04:
The facts are that.

[00:14:34] Speaker 04:
But again, the facts are that she, to go back

[00:14:37] Speaker 01:
Your honor, first... So here's the... And I know this is beyond the jurisdictional point, but given that she was in a term-limited appointment that's expired, if all she's trying to get in is the agency has to make a reasonable effort to return her to her position, that position no longer exists.

[00:14:58] Speaker 01:
Can't they just say, isn't what's going to happen on remand if we give it to you, they're just going to say there is no position for you to return to

[00:15:05] Speaker 01:
You weren't selected for this other position, so you're out on the merits.

[00:15:10] Speaker 04:
I think, Your Honor, that goes back to the evidentiary hearing issue, where she would be able to present evidence and develop a record that says, well, look, all of these people were actually converted.

[00:15:21] Speaker 01:
Right, but the MSPB still can't order her appointed to a career position that she wasn't selected for.

[00:15:28] Speaker 04:
No, but it could order her appointed to a city carrier position, which is what the evidence

[00:15:33] Speaker 01:
Submitted by the Postal Service.

[00:15:34] Speaker 01:
No, it can't do that.

[00:15:35] Speaker 01:
I mean, that's a career position, right?

[00:15:37] Speaker 01:
No, it's not.

[00:15:39] Speaker 01:
It's term limited.

[00:15:41] Speaker 01:
But there are no term limited positions of that in existence anymore, is my understanding.

[00:15:46] Speaker 04:
There are three positions.

[00:15:48] Speaker 04:
There is the permanent position of a letter carrier.

[00:15:50] Speaker 04:
There is the CCA position, which is what is talked about in the appendix at 124 to 127.

[00:15:56] Speaker 04:
And then there is the position that she occupied, which is the TE position, transitional employee position.

[00:16:02] Speaker 04:
And so all the TEs, I mean what she would show, what the evidence would show if she were entitled and able to present it is that all of those people who were TEs were in fact made CCAs and that all of them in fact are still there.

[00:16:18] Speaker 04:
And I think that that distinction goes to the time when she, you know, something factually that she wasn't entitled or she wasn't given the opportunity to present, I think that she was based on her allegations.

[00:16:29] Speaker 04:
Again, she worked at the same place.

[00:16:31] Speaker 04:
She was treated, I think, that everyone there must have had an expectation that she would come back year after year after year after year.

[00:16:37] Speaker 04:
The SF50s under Grigsby simply don't control.

[00:16:42] Speaker 04:
And I think I've used my rebuttal time more.

[00:16:45] Speaker 03:
We'll give you two minutes for rebuttal.

[00:16:48] Speaker 03:
Thank you.

[00:16:48] Speaker 03:
Thank you, Your Honor.

[00:16:50] Speaker 03:
Ms.

[00:16:50] Speaker 03:
Smith?

[00:16:51] Speaker 00:
Thank you, Your Honor.

[00:16:52] Speaker 00:
Good morning, may I please report?

[00:16:55] Speaker 00:
I'd like to start with Judge Shew's comment about the statute, excuse me, and what appeal rights it provides.

[00:17:01] Speaker 01:
Well, I'd like to start with the regulation because I think the statute's very clear that it doesn't give you appeal rights.

[00:17:07] Speaker 01:
The regulation is a mess because the regulation seems to, on its face,

[00:17:12] Speaker 01:
preclude restoration rights for term employees.

[00:17:18] Speaker 01:
And that's not consistent with the statute, is it?

[00:17:21] Speaker 00:
I would disagree with that because the statute says nothing on its face about term limited employees.

[00:17:25] Speaker 00:
It also says nothing about term limited cover.

[00:17:27] Speaker 01:
Yeah, but if you look at the legislative history, the legislative history is pretty clear because it doesn't define it one way or another that it includes

[00:17:34] Speaker 01:
all employees.

[00:17:35] Speaker 00:
Well, it doesn't define it one way or another.

[00:17:37] Speaker 00:
So if you're going to say the statute is ambiguous because it is silent, then I think you need to give Chevron deference to OPM and to OPM's regulations interpreting the statute.

[00:17:45] Speaker 03:
Well, there's your problem, because the regulations are pretty unclear.

[00:17:49] Speaker 03:
In my view, if you look at 353-304, it says an individual who is partially recovered from a comprehensive injury may appeal to the MSPB for a determination of whether the agency is acting arbitrarily and capriciously and denying restoration.

[00:18:04] Speaker 03:
That's a broad appeal regulation, which seems to encompass this individual, even though she is only partially recovered, and even though she is on a term-limited appointment.

[00:18:18] Speaker 03:
Correct?

[00:18:19] Speaker 00:
Well, the 304 gives restoration rights to partially recovered employees, which, by the way, are not given in the statute.

[00:18:27] Speaker 00:
No, but I'm trying to answer your question.

[00:18:28] Speaker 03:
My question is, on its face,

[00:18:31] Speaker 03:
Isn't she within the first sentence of 304C?

[00:18:35] Speaker 00:
She is, but she is not within section 353.103, which defines people who are entitled to restoration rights in the first sentence.

[00:18:43] Speaker 03:
So what you're saying is that 103 cabins 304.

[00:18:46] Speaker 00:
Exactly.

[00:18:47] Speaker 03:
But it seems to me that's not necessarily true on the face of it, because 103 doesn't say the only people who have appeal rights are permanent employees in these certain specified temporary courts.

[00:19:02] Speaker 00:
Well, I would respectfully disagree with that, because I think it is pretty clear that it specifically excludes term-limited employees.

[00:19:09] Speaker 00:
It says anybody who is separated from employment without time limitation, and by definition, if you have a time limitation on employment.

[00:19:17] Speaker 03:
Yeah, but it's just saying who has rights.

[00:19:18] Speaker 03:
It's not saying who doesn't have rights, correct?

[00:19:21] Speaker 00:
That says that they do have rights if they're a separate department.

[00:19:25] Speaker 00:
All right.

[00:19:25] Speaker 03:
And then here you have another regulation which says that she has rights.

[00:19:28] Speaker 03:
And you're taking an implication from 102 or 103, whatever it is, to cabin 304.

[00:19:37] Speaker 00:
Well, I think that's the logical thing to do because of the order in which these regulations come.

[00:19:41] Speaker 00:
You usually have your definitions at the beginning.

[00:19:43] Speaker 00:
That's exactly what this is here.

[00:19:45] Speaker 00:
Persons covered is a definition of who falls under the regulation.

[00:19:48] Speaker 00:
And then you have the rest of the regulation telling you what your rights are if you fall under that category of persons covered.

[00:19:58] Speaker 03:
Well, the problem is the regulations aren't very clear, right?

[00:20:03] Speaker 00:
I feel they're clear.

[00:20:04] Speaker 00:
Can you answer this?

[00:20:09] Speaker 01:
I know you disagree, but hypothetically, let's assume I read 8151, the statute, as clearly covering

[00:20:18] Speaker 01:
both career and time-limited employees.

[00:20:21] Speaker 01:
If that's the case, then this regulation excluding time-limited employees from restoration rights conflicts with the statute, right?

[00:20:32] Speaker 00:
If you believe the statute is that explicit and that clear, then yes, I would have to agree with you.

[00:20:37] Speaker 01:
So if that's the case.

[00:20:38] Speaker 01:
But I think you also would have an argument that even though they have restoration rights, OPM didn't have to give them appeal rights.

[00:20:47] Speaker 01:
You can have restoration rights without appeal rights, right?

[00:20:51] Speaker 00:
That's correct.

[00:20:52] Speaker 01:
But it's not clear to me that's what OPM intended to do with this regulation.

[00:20:57] Speaker 01:
So what do we do with this?

[00:20:59] Speaker 01:
If we find that the regulation excluding term people from restoration rights is inconsistent with the statute, but we don't know whether OPM would have given appeal rights to term people if it thought the statute covered it or not,

[00:21:17] Speaker 01:
How do we resolve that?

[00:21:20] Speaker 00:
I guess you would want to hear from OPM.

[00:21:22] Speaker 00:
And there is a provision for the board by which OPM can defend its regulations if those are in question.

[00:21:27] Speaker 00:
And that's section, I believe, 5 USC, section 1204 F, if I remember correctly, in which the board can.

[00:21:33] Speaker 03:
Well, why wouldn't you construe the regulation then to give the appeal rights to the temporary employee?

[00:21:41] Speaker 03:
Certainly, why wouldn't you construe the regulations to give the appeal rights to the

[00:21:46] Speaker 03:
partially recovered temporary employees if, in fact, the statute covers those people.

[00:21:54] Speaker 00:
Well, to be clear, I'm not conceding that it does, and I think it's... No, but if.

[00:21:58] Speaker 00:
If.

[00:21:59] Speaker 00:
If.

[00:22:00] Speaker 00:
I would have to say that if there is a clear conflict in the statute, then that is problematic.

[00:22:05] Speaker 00:
I don't think there is a conflict in the statute.

[00:22:07] Speaker 00:
I think the statute

[00:22:09] Speaker 00:
And worst is ambiguous.

[00:22:11] Speaker 00:
It doesn't speak to either partially recovered employees or to temporary employees.

[00:22:16] Speaker 00:
In fact, the legislative history specifically invites OPM to promulgate regulations concerning partially recovered employees, which OPM has done.

[00:22:24] Speaker 01:
I mean, doesn't the statute define for purposes of this, of FICA, an employee is defined as a civil officer or employee in any branch of the government?

[00:22:36] Speaker 00:
Yes.

[00:22:38] Speaker 00:
But it does not say career, temporary.

[00:22:41] Speaker 00:
It doesn't use the language that is used in regulations.

[00:22:48] Speaker 00:
So at worst, I believe it would be ambiguous because it's silent on that question.

[00:23:00] Speaker 00:
I would also like to address Ms.

[00:23:01] Speaker 00:
Cobb's claim that she was not really a temporary employee.

[00:23:03] Speaker 00:
But if you have further questions on this issue, I would want to address those as well.

[00:23:12] Speaker 03:
No, I'm sorry.

[00:23:13] Speaker 00:
Go ahead.

[00:23:15] Speaker 00:
Regarding her claim that she was not really a temporary employee, I think the record is quite clear.

[00:23:19] Speaker 00:
As you pointed out, Judge Hughes, that all of her SF50s point only to temporary appointments.

[00:23:26] Speaker 00:
There is no documents and no specific allegations in the record that would contradict that.

[00:23:31] Speaker 00:
Everything she says is conclusory.

[00:23:33] Speaker 00:
And to the extent that she introduced anything that was not conclusory, she did so extremely late before this court.

[00:23:38] Speaker 00:
She never, for example, pointed out before the administrative judge of the board that she was forced to take vacations at certain intervals that would coincide with her breaks from service.

[00:23:48] Speaker 00:
That's the sort of specific allegation that perhaps could have led to a jurisdictional hearing.

[00:23:52] Speaker 00:
But neither that allegation or anything else specific was ever presented to the administrative judge or the board.

[00:24:03] Speaker 03:
Anything more?

[00:24:04] Speaker 00:
There are no further questions.

[00:24:06] Speaker 00:
OK.

[00:24:06] Speaker 03:
Thank you, Ms.

[00:24:07] Speaker 03:
Smith.

[00:24:07] Speaker 03:
Mr. Hellman?

[00:24:20] Speaker 02:
Good morning, Your Honors, and may it please the Court

[00:24:23] Speaker 01:
Is there anything in the history of the rulemaking for this regulation that has any answers to this that you know of?

[00:24:30] Speaker 01:
I looked and I couldn't find anything.

[00:24:33] Speaker 02:
I couldn't find anything either, Your Honor, although I think the basic... So let me ask you the question I just asked your friend.

[00:24:40] Speaker 01:
Let's assume that the statute covers both career and term-limited employees for restoration rights.

[00:24:47] Speaker 01:
And so that part of the regulation that limits its

[00:24:50] Speaker 01:
to career employees is inconsistent.

[00:24:55] Speaker 01:
OPM still, I think in my view, could have not given an appeal rights to term limit employees, but it's not clear to me that that's what they intended to do.

[00:25:05] Speaker 01:
So how do we resolve this if that's our problem?

[00:25:10] Speaker 01:
Have you talked to OPM about this case?

[00:25:12] Speaker 02:
No, Your Honor.

[00:25:16] Speaker 02:
Taking Your Honor's hypothetical that the statute clearly covers both term-limited and career employees, which I think our position is it does not, it would seem that there would be a distinction between appeal rights and... Do you think there's... I mean, there's nothing in the regulatory... I mean, I looked very hard.

[00:25:40] Speaker 01:
And it did not seem to me that there is anything in the Federal Register of the history of the rulemaking and this statute and the rules for it go back to like 1914 that discusses these distinctions and whether you get appeal rights if you are a career employee but not a term employee, but you get restoration rights altogether.

[00:26:01] Speaker 02:
Nothing that mentions the distinction between those types of employees with respect to appeal rights or with respect to restoration rights.

[00:26:07] Speaker 02:
Because I think it makes sense to make the distinction with respect to restoration.

[00:26:11] Speaker 01:
No, you're right.

[00:26:11] Speaker 01:
I mean, if you read the statute your way and say the statute only applies to career employees, then everything's consistent.

[00:26:18] Speaker 02:
Right.

[00:26:19] Speaker 02:
Which is our position, because it talks about regular full-time employment.

[00:26:23] Speaker 02:
The government agencies have seasonal employees that park service that they rehire year after year.

[00:26:29] Speaker 02:
Where does the statute talk about regular full-time employment?

[00:26:31] Speaker 02:
The statute talks about regular full-time employment, where it says,

[00:26:37] Speaker 02:
The Department of Agency, which was the last employer.

[00:26:42] Speaker 02:
I'm in 5 U.S.C.

[00:26:44] Speaker 02:
8151 B1, which talks about after the injured employee resumes regular full-time employment with the United States.

[00:26:55] Speaker 02:
So the term resumes means that the... They just resume to work.

[00:27:00] Speaker 02:
Well, regular full-time employment and our position is that that term is ambiguous.

[00:27:05] Speaker 01:
Yeah, I mean, this is the problem.

[00:27:08] Speaker 01:
Regular full-time employment doesn't have any real meaning in civil service law.

[00:27:13] Speaker 01:
I'm not aware of that kind of term being used to refer to either career or term limit employees.

[00:27:19] Speaker 01:
You could just as easily read that to mean they come back to work full-time.

[00:27:24] Speaker 02:
Sure, but the preface of that section says under regulations issued by OPM.

[00:27:31] Speaker 01:
Here's the problem, though.

[00:27:32] Speaker 01:
You never in any of that regulatory rulemaking explain or provide an interpretation of that term, and that it's ambiguous, and you think that it means only career employees.

[00:27:45] Speaker 01:
I mean, I guess your answer is that's what the regulations say.

[00:27:48] Speaker 01:
So presumably, that's what they meant.

[00:27:50] Speaker 02:
Yes, and specifically,

[00:27:53] Speaker 02:
5 CFR 353.103b talks about what they mean by employee.

[00:27:59] Speaker 02:
And again, it goes back to the nature of the temporary versus permanent type of positions.

[00:28:05] Speaker 02:
As in Ms.

[00:28:06] Speaker 02:
Combs' case, her position no longer existed by the time she recovered from her injury, because it was a term position.

[00:28:12] Speaker 02:
It makes no sense to offer restoration rights in that context.

[00:28:16] Speaker 02:
So I think the purpose behind the OPM regulations is reasonable.

[00:28:22] Speaker 01:
Well, except that it could make sense to offer restoration rights to term-limited employees if sometimes terms aren't one year, sometimes they're two years.

[00:28:31] Speaker 01:
If you get injured on the job three months into your two-year appointment, you recover six months later, Congress could have meant for those people to have an unconditional right to return.

[00:28:42] Speaker 02:
They could have, but they delegated this to the agency.

[00:28:45] Speaker 02:
And I submit that the agency's regulation here is reasonable.

[00:28:48] Speaker 02:
There may be other reasonable regulations as well.

[00:28:51] Speaker 02:
Are they under Chevron?

[00:28:52] Speaker 02:
It just has to be reasonable.

[00:28:56] Speaker 02:
If the court does not have additional questions specifically on the statutory interpretation, then I'm happy to sit.

[00:29:06] Speaker 03:
OK.

[00:29:06] Speaker 03:
Thank you, Mr. Hellman.

[00:29:08] Speaker 03:
Mr. Atkins, we gave you two minutes here.

[00:29:11] Speaker 03:
Thank you, Mayor.

[00:29:12] Speaker 04:
I appreciate the additional time.

[00:29:13] Speaker 04:
It was very quick.

[00:29:15] Speaker 04:
I want to return to point one that I made, which is the point that she gets an evidentiary hearing.

[00:29:20] Speaker 04:
A lot of the arguments that are

[00:29:22] Speaker 04:
made, and there's a summary, there's a list of them, and I think we've responded to them in our brief, are directed to what she would have presented had she been given the chance to provide evidence.

[00:29:33] Speaker 04:
What happened in this case was it got derailed very early in what the board in its brief at page 5 incorrectly refers to as a motion to dismiss the MSPB appeal.

[00:29:46] Speaker 01:
This was in order to... Honestly, I'm not sure how these factual allegations help you.

[00:29:53] Speaker 01:
Because all you're saying is, if she had restoration rights, she would have been converted to a full-time employee.

[00:30:00] Speaker 01:
But we first have to resolve whether the regulation itself could have given her restoration rights.

[00:30:07] Speaker 01:
And if it doesn't apply to term-limited employees, which she indisputably was,

[00:30:13] Speaker 01:
at a certain point in time, because she never actually was formally converted, then you can't bootstrap the restoration rights to accord her career rights that would then entitle her to rely on the restoration rights statute.

[00:30:28] Speaker 04:
Well, I think we have to be very clear about what the evidence is being used for.

[00:30:31] Speaker 04:
And the evidence that other people were similarly treated isn't being used to show the fact that she, I mean, the fact that she would have been converted makes out a claim.

[00:30:40] Speaker 01:
Are you trying to say that the evidence shows that she was converted?

[00:30:44] Speaker 04:
No, that she was a permanent ab initia.

[00:30:47] Speaker 04:
So she was hired to do a job that lasted 10 years with the Postal Service where everyone else was treated in a way.

[00:30:55] Speaker 04:
They were given a permanent job at the end of their.

[00:30:58] Speaker 01:
They were given a permanent job.

[00:30:59] Speaker 01:
They weren't in a permanent job.

[00:31:01] Speaker 04:
Well, that's my language of this argument.

[00:31:05] Speaker 04:
But what actually happened was she was hired.

[00:31:07] Speaker 04:
They were hired.

[00:31:08] Speaker 04:
They stayed at the Postal Service.

[00:31:09] Speaker 01:
Let me ask you this.

[00:31:10] Speaker 01:
So absent, because you're still, I think, saying she would have been converted, not that she was converted.

[00:31:17] Speaker 01:
Absent an official act from the Postal Service, was she a career employee?

[00:31:23] Speaker 04:
She started as a career employee because of the nature of her employment and because of what was being done in the Postal Service

[00:31:31] Speaker 01:
that time so if she was a career employee and they didn't let her come back to work she would have had the right to appeal this as an adverse action removal because she was a career employee and they didn't let her work if it had been an adverse action removal but it was not it was a failure to restore but yes she would have had those rights that would follow from this

[00:31:59] Speaker 01:
But in this case... Are you aware of any case where somebody can claim just because they served on a bunch of term-limited appointments and that everybody else got converted that they were de facto converted?

[00:32:14] Speaker 04:
There is no such case, Your Honor, and I've looked for it.

[00:32:17] Speaker 04:
But the case that does allow this is Grigsby.

[00:32:21] Speaker 04:
SF50s don't control.

[00:32:22] Speaker 04:
And there are subsequent, in fact, one that must have appeared after we filed our reply brief, though, is decided before Luna, where the court, it's non-precedential, but the court talks about it being a totality of the circumstances test.

[00:32:37] Speaker 04:
And the point is that she has the right to demonstrate from a totality of the circumstances what the nature of her employment relationship was because the SF50s don't control.

[00:32:48] Speaker 04:
And that's the only evidence.

[00:32:50] Speaker 04:
And again, we're talking about evidence that she has the right to dispute, to impeach, to do whatever she wants with it and present her own in full at an evidentiary hearing.

[00:33:01] Speaker 04:
But the only evidence that they rely on is the SF50s.

[00:33:04] Speaker 04:
So they're not saying, there's no contention contrary to her allegations that in fact all of the people who were hired in this way were ever expected to simply be temporary.

[00:33:17] Speaker 03:
Because they're not doing it.

[00:33:19] Speaker 03:
Thank you, your honor.

[00:33:21] Speaker 03:
Thank you, Mr. Chairman.

[00:33:22] Speaker 03:
Thank both counsel.

[00:33:23] Speaker 03:
The case is submitted.

[00:33:24] Speaker 03:
That concludes our session for this morning.

[00:33:27] Speaker 00:
The honorable court is adjourned at the 4.8 a.m.