[00:00:04] Speaker 04:
I'm going to go to bed.

[00:00:39] Speaker 04:
Mr. Aldrich.

[00:00:40] Speaker 03:
Good morning, Your Honor.

[00:00:41] Speaker 03:
Jason Aldrich on behalf of Petitioner.

[00:00:42] Speaker 03:
May it please the Court.

[00:00:44] Speaker 03:
This case is here before you because we found it unacceptable for a federal employee to lose her career of almost 20 years based upon the facts of this case.

[00:00:55] Speaker 03:
And I wanted to take the time this morning to direct your attention to two aspects.

[00:00:59] Speaker 03:
And then first, under the substantial evidence standard, the conduct that they alleged from the get-go in the proposal notice does not amount to misconduct at all.

[00:01:09] Speaker 03:
And there were essentially three allegations contained in that paragraph, which I believe you can find in the appendix at, I believe it was page 54.

[00:01:16] Speaker 03:
And it's that first paragraph on the inappropriate association, which boiled down to that she had a negative attitude while interacting with the airport police officer trying to convince him to arrest an illegal alien that they had in their custody on state charges for possession of a federal... Let me ask you a housekeeping question.

[00:01:35] Speaker 03:
Absolutely, sir.

[00:01:36] Speaker 04:
The government construes part of your

[00:01:40] Speaker 04:
opening brief as making an impermissibly vague argument.

[00:01:44] Speaker 04:
And you say in your reply that it's substantial evidence, question only.

[00:01:50] Speaker 04:
Yes, absolutely.

[00:01:51] Speaker 04:
We're correct on that.

[00:01:52] Speaker 03:
Yeah, and what I really was trying to clarify there, Your Honor, was that this conduct that they say is misconduct is not misconduct at all.

[00:01:59] Speaker 03:
And that's where this vagueness comes in.

[00:02:01] Speaker 03:
And that is, how can you say that encouraging a state officer

[00:02:05] Speaker 03:
to do the very same act that one of her peers at another station does routinely, to which she testified to in this case, it promotes the efficiency of the service and promotes their agency mission.

[00:02:15] Speaker 03:
And then that number two, which I helped out in my brief, is just denying that you know somebody somehow amounts to misconduct.

[00:02:20] Speaker 03:
And then this third allegation that she made this comment, which she denied in the record, which the arbitrator found

[00:02:25] Speaker 03:
that he didn't believe on that.

[00:02:26] Speaker 03:
Those are evidence.

[00:02:28] Speaker 03:
I understand that, Your Honor, but there's also so much about this case where you can question that.

[00:02:33] Speaker 03:
And I understood that under Conan that you may want to defer to the arbitrator on those evidentiary findings, but there's so much about that that I think the arbitrator completely ignored.

[00:02:42] Speaker 03:
He didn't focus on how this allegation came about.

[00:02:45] Speaker 03:
He didn't focus on Officer Spikes, this airport police officer, how he said the recruit who was present with him was so impressionable, but yet this recruit

[00:02:55] Speaker 03:
had 27 years' law enforcement experience.

[00:02:57] Speaker 03:
And there was so much doubt there about that officer's credibility that it just raised some red flags.

[00:03:03] Speaker 03:
I understood under CONUC that that could be difficult for this court to accept.

[00:03:06] Speaker 03:
So I also wanted to focus you on the second aspect, which is the penalty of removal says by a federal agency that we don't trust you to do this job anymore.

[00:03:17] Speaker 03:
That's the only thing it says.

[00:03:18] Speaker 04:
This is not the first time.

[00:03:20] Speaker 03:
for her disciplinary action.

[00:03:22] Speaker 03:
Correct.

[00:03:22] Speaker 03:
And that's why we cited at the arbitration hearing to Madison versus Department of the Air Force, where an employee there who continued to perform the full range of her duties.

[00:03:31] Speaker 01:
I think your argument is that if they were that worried about this employee, they should have taken her off the job site, not kept her around, used her, and paid her.

[00:03:40] Speaker 03:
In the agency, I know there's evidentism before the court, but that's something that the agency routinely does, is they put them on paid administrative duties, pull their badge and gun,

[00:03:48] Speaker 03:
and assign them to duties that have nothing to do with law enforcement.

[00:03:51] Speaker 03:
But here, they assigned her to do the very same thing, which they alleged we couldn't trust you to do anymore.

[00:03:56] Speaker 03:
And that was interact with municipal law enforcement officers at the marinas, in the county, the city.

[00:04:01] Speaker 03:
If she was so untrustworthy, then how do you allow her to go badge, gun, uniform, out in the community, interacting with not only other law enforcement officers?

[00:04:09] Speaker 00:
I mean, isn't the answer there are degrees of untrustworthiness and offsetting possible needs of the agency?

[00:04:19] Speaker 00:
And I mean, is it not within the agency's reasonable discretion about penalty to say there are five or six of these pretty unpleasant incidents?

[00:04:31] Speaker 00:
We don't want them to continue indefinitely.

[00:04:34] Speaker 00:
We don't think, you know, you're so worrisome to us that we need to make sure that from today going forward, you're not dealing with anybody, but we're not going to put up with this any longer.

[00:04:47] Speaker 03:
I think there would be credibility for that position if they didn't allow her to do this full range of duties for 10 months.

[00:04:52] Speaker 03:
They knew about the allegation.

[00:04:54] Speaker 03:
They had it investigated and concluded pretty quickly.

[00:04:56] Speaker 03:
And even after she was proposed termination, I think it was a three or four month time span that she continued to do this whole range of duties.

[00:05:02] Speaker 03:
And when she presented her oral reply to the chief patrol agent, the deciding official.

[00:05:06] Speaker 04:
Would it be legitimate to terminate her just because they think she's nasty to people?

[00:05:11] Speaker 03:
You have to think about the law enforcement officer.

[00:05:13] Speaker 03:
It's not dangerous.

[00:05:13] Speaker 03:
It's just that she's nasty.

[00:05:17] Speaker 03:
I don't think that's legitimate at all.

[00:05:18] Speaker 03:
And part of this is that she's a border patrol agent.

[00:05:20] Speaker 03:
The whole nature of her job, there's an animosity to it, interacting with the public.

[00:05:24] Speaker 03:
And then you have state officers.

[00:05:26] Speaker 03:
Oh, oh, oh.

[00:05:27] Speaker 03:
The immigration topic is a hot topic.

[00:05:30] Speaker 03:
But when you're dealing with another law enforcement officer.

[00:05:32] Speaker 04:
Another immigration topic?

[00:05:34] Speaker 04:
You're saying that the nature of a law enforcement officer's job is to be

[00:05:40] Speaker 04:
aggressive to the public?

[00:05:41] Speaker 03:
I don't think she was accused of being aggressive here, and that's certainly not what I'm saying, Your Honor.

[00:05:44] Speaker 03:
I'm just saying is that when you're in an enforcement position, the person on the receiving end of that is not always going to be receptive to it.

[00:05:50] Speaker 03:
The assertion of authority, that's the whole nature of the Fourth Amendment.

[00:05:55] Speaker 03:
What I am saying here is that in this particular circumstance, it was behind closed doors with only other law enforcement officers trying to convince these state officers to make an enforcement action, and it didn't take.

[00:06:06] Speaker 03:
And after she called her supervisor and said, this is my situation,

[00:06:10] Speaker 03:
whose supervisor said, bring them on in.

[00:06:12] Speaker 03:
And that's exactly what she did.

[00:06:14] Speaker 03:
And this whole thing came about not because that airport police officer made a phone call or filed a complaint.

[00:06:20] Speaker 03:
It was a public survey by her supervisor the very next day.

[00:06:25] Speaker 03:
But for that phone call by him, which I saw that as a fishing expedition, this thing would never be before the court.

[00:06:33] Speaker 03:
So again, it comes down to, was this misconduct at all just this verbal exchange, which really never

[00:06:39] Speaker 03:
Got loud, according to the testimony.

[00:06:41] Speaker 03:
It was this request for enforcement action that the state officer was reluctant to take.

[00:06:45] Speaker 03:
And then these couple other comments, I don't know this person, people are harping on me at work.

[00:06:50] Speaker 03:
That that's somehow, after 20 years of service as a Border Patrol agent, that she should lose her career over that.

[00:06:56] Speaker 03:
And I recognized the prior disciplinary action.

[00:06:58] Speaker 03:
I understood going into this case.

[00:07:00] Speaker 01:
Well, the arbitrator said that the events in question

[00:07:05] Speaker 01:
that the Jacksonville Airport alone would not have been enough for him to sustain the penalty.

[00:07:13] Speaker 03:
Yes, he did say that.

[00:07:14] Speaker 01:
He said that's not enough.

[00:07:16] Speaker 01:
But he said it's a connection with all the prior events that led him to believe that the agency had successfully passed through the Douglas Factors and found the adverse effect on the surface.

[00:07:30] Speaker 03:
My counter to that is it's based upon

[00:07:33] Speaker 03:
a subjective interpretation of another police officer in terms of negative attitude.

[00:07:38] Speaker 01:
If you separate the two things, I mean, the event at the airport is thin, right?

[00:07:45] Speaker 01:
But it happened.

[00:07:47] Speaker 01:
And you have a state officer who seemed to be concerned enough that the interrelationship with your client on that day was going to lead to some further discussion with somebody.

[00:08:01] Speaker 01:
At least that's what he said.

[00:08:02] Speaker 01:
That's why I called up.

[00:08:05] Speaker 01:
Because in essence, I was afraid she'd report me.

[00:08:08] Speaker 03:
Yes, he did testify to that.

[00:08:10] Speaker 01:
That's what he was saying.

[00:08:10] Speaker 01:
So he said something went on out there that maybe it's because they had some knowledge about your client or they were worried about her because she, you know, made a little trouble.

[00:08:21] Speaker 03:
To clarify, Your Honor, that call that he made was to his supervisors only.

[00:08:26] Speaker 03:
No call was made to DHS or CBP about them.

[00:08:29] Speaker 03:
It was only

[00:08:30] Speaker 03:
I believe his testimony was he was covering himself by making that phone call in case something came out.

[00:08:35] Speaker 01:
And didn't his supervisor say, well, you better write something up?

[00:08:39] Speaker 03:
I don't recall that testimony, but it could be there.

[00:08:41] Speaker 01:
You might be correct.

[00:08:42] Speaker 01:
So your concern, you want to cover what you write up, what your view of the episode was, and send it in.

[00:08:50] Speaker 01:
That's what he did.

[00:08:51] Speaker 01:
And then things went on from there.

[00:08:53] Speaker 03:
Yeah, there was the phone call by her supervisor.

[00:08:56] Speaker 03:
It was an acting patrol agent in charge of the station who called

[00:08:59] Speaker 03:
the airport police the next day to say, how did our employee do?

[00:09:03] Speaker 01:
Why was he calling?

[00:09:05] Speaker 03:
That's the big question and that's, I don't know.

[00:09:08] Speaker 01:
Maybe he got a call from the state guy's supervisor or something went on over there.

[00:09:12] Speaker 03:
No, no, that's not what he says.

[00:09:13] Speaker 03:
Agent Martinez testified that it was his initiative.

[00:09:16] Speaker 03:
He received no information prior that prompted him

[00:09:19] Speaker 03:
No information from airport police that prompted him to make that phone call.

[00:09:22] Speaker 03:
It was more adequate.

[00:09:23] Speaker 01:
He was calling up to say, how did my agent do out there yesterday?

[00:09:24] Speaker 01:
Correct.

[00:09:25] Speaker 03:
And he testified clearly.

[00:09:26] Speaker 03:
And I believe the arbitration transcript, which that portion is not lodged in the record, but we get to that if you like, was very clear that no, he's the acting.

[00:09:35] Speaker 01:
If substantial evidence supports the conclusion that whatever happened at the airport went down according to the testimony of the state officer.

[00:09:44] Speaker 01:
And my response to that is... Her behavior was upsetting to me and upsetting to my colleague.

[00:09:50] Speaker 03:
That was his testimony.

[00:09:52] Speaker 01:
Yeah.

[00:09:52] Speaker 01:
And then a colleague who the state officer out there at the airport said, well, this is my scrub, my new person.

[00:10:01] Speaker 01:
And he said, well, new schmoo.

[00:10:02] Speaker 01:
He's been on the service for 20 years.

[00:10:04] Speaker 01:
But then the officer out at the airport came back and said, well, he's new out at the airport.

[00:10:11] Speaker 03:
Yes, but when you read his declaration, which I believe is in the appendix... I read it last night.

[00:10:15] Speaker 01:
He said he was new at the airport.

[00:10:16] Speaker 03:
New at the airport.

[00:10:17] Speaker 03:
And that's not what his... When you read his declaration, you get the distinct impression that this was some new young 20-year-old person coming into law enforcement.

[00:10:26] Speaker 01:
And I just don't... He says he's new at the airport.

[00:10:29] Speaker 01:
I don't want him to think this is how things happen out at the airport.

[00:10:33] Speaker 01:
All this haggling back and forth about who's supposed to take the suspect into custody.

[00:10:40] Speaker 01:
state or fed.

[00:10:41] Speaker 03:
I think that's what he tried to lead the arbitrator to believe in his testimony.

[00:10:44] Speaker 03:
And me personally, I didn't buy that.

[00:10:46] Speaker 01:
I mean, wasn't that the gist of what was going on at the airport was there was a dispute between your client and the state person as to who was going to have to take all the terrible effort to write this guy up.

[00:11:03] Speaker 01:
And this fellow who had

[00:11:05] Speaker 01:
false ident ID or done something that raised suspicion about him.

[00:11:10] Speaker 01:
Somebody has to take a lot of trouble to go write it up.

[00:11:14] Speaker 03:
I focus on the conduct and what her conduct is there as to that first allegation about the negative attitude and reluctance to take a person into custody, her colleague, Agent Metessian, testified he does the same thing.

[00:11:25] Speaker 03:
So when we focus on the conduct, it's like well the person that she's expressing this desire to to have state enforcement on this charge

[00:11:33] Speaker 03:
It's the same conduct that this other agent does, but yet somehow her conduct is perceived as negative attitude.

[00:11:39] Speaker 03:
And that's the double standard that I had a real... Officer said it was the first time he'd ever had anybody say it to him.

[00:11:45] Speaker 03:
Officer Spikes said that?

[00:11:46] Speaker 03:
That might have been what he testified to, but I think he had over 20 years' law enforcement experience.

[00:11:51] Speaker 03:
I personally have trouble accepting that, but it's... And I don't know how often they come into contact with persons who are in the country illegally at the Jacksonville airport.

[00:12:00] Speaker 03:
It's very far north, you know, point of entry.

[00:12:03] Speaker 03:
And this person was trying to get on the plane, the person that was in custody, to try to go back to Guatemala with the ticket that he purchased himself.

[00:12:09] Speaker 03:
Again, I focus on the conduct.

[00:12:11] Speaker 03:
What Agent Dixon here is exactly the same as what another agent did, but yet she had the misfortune of having someone perceive her as negative attitude.

[00:12:19] Speaker 03:
You're under your rebuttal time, but you can keep going.

[00:12:22] Speaker 03:
I will reserve the three minutes for rebuttal.

[00:12:23] Speaker 03:
Thank you.

[00:12:38] Speaker 02:
Thank you.

[00:12:39] Speaker 02:
May it please the court, if I can pick up on one point you were making Judge Clevenger.

[00:12:43] Speaker 02:
The reason that Agent Dixon's supervisor was calling was he testified that was his routine practice to do so because it was important to maintain relationships with local law enforcement.

[00:12:55] Speaker 02:
This misconduct was that she was trying not to perform one of the essential functions of her job, which is to take aliens into custody.

[00:13:03] Speaker 02:
Moreover, she did so in a manner

[00:13:05] Speaker 02:
that had the potential to damage relationships.

[00:13:07] Speaker 01:
Is it her job to take someone into custody if the state official expresses its desire to take the person into custody on a state charge?

[00:13:16] Speaker 02:
Well, no, she doesn't.

[00:13:18] Speaker 01:
Well, let me ask this question.

[00:13:19] Speaker 01:
Was there a pre-existing policy here at this airport and this area that the feds always took jurisdiction and the feds did the charging?

[00:13:28] Speaker 02:
No, but she was directed by her supervisor to go pick up the alien.

[00:13:34] Speaker 02:
She was not told to go and negotiate whether there were state charges.

[00:13:38] Speaker 02:
Her job was to go and pick up the agent.

[00:13:40] Speaker 02:
It was up to Officer Spikes, in the exercise of his discretion, to determine whether or not a state charge was appropriate.

[00:13:47] Speaker 02:
That was not Agent Dixon's job.

[00:13:50] Speaker 02:
She was there merely to pick him up.

[00:13:53] Speaker 01:
She was ordered by her boss to go out to the airport and take this guy into federal custody and bring him down the bookie.

[00:14:01] Speaker 02:
Basically, yes, Your Honor.

[00:14:03] Speaker 01:
Why do we give a darn what the state person said at the Supremacy Clause?

[00:14:08] Speaker 01:
When the federal government said we want someone, why was there any ground for the state officer to express his judgment one way or the other?

[00:14:18] Speaker 02:
Because she told, she asked him to take him into state custody on state charges.

[00:14:23] Speaker 02:
And he said he didn't think that was appropriate.

[00:14:24] Speaker 01:
She's not being charged with violating instructions.

[00:14:28] Speaker 02:
She's being charged with being reluctant to perform her duties by taking the alien into custody.

[00:14:33] Speaker 02:
Because she ultimately did take him into custody.

[00:14:35] Speaker 02:
That's why she wasn't charged with not following instructions.

[00:14:38] Speaker 02:
But to get her to do that, even after he had said he wasn't going to take her into custody, he had to repeatedly tell her that.

[00:14:45] Speaker 01:
Reluctance to obey orders.

[00:14:49] Speaker 02:
I guess you could charge that.

[00:14:52] Speaker 01:
That's not what is written up.

[00:14:53] Speaker 02:
It's reluctant to take an alien into custody.

[00:14:56] Speaker 02:
And that's her job function.

[00:14:58] Speaker 02:
And it was also disparaging her coworkers.

[00:15:01] Speaker 02:
So the charge was that because she ultimately did... That's one of the charges.

[00:15:06] Speaker 01:
She is... The decision here was made that she made three mistakes.

[00:15:11] Speaker 01:
Right?

[00:15:12] Speaker 01:
Second mistake was that she said, I never worked with Judge Toronto when we were in private practice.

[00:15:22] Speaker 01:
That's what she said.

[00:15:22] Speaker 01:
She said, I never worked with that person.

[00:15:25] Speaker 02:
Right?

[00:15:25] Speaker 02:
Well, officers... That's what she said.

[00:15:28] Speaker 02:
Those were her words.

[00:15:30] Speaker 01:
So how is the fact that I never worked with somebody inappropriate conduct?

[00:15:35] Speaker 02:
Because she said it abruptly in a rude tone, as Officer Spikes testified.

[00:15:39] Speaker 01:
Now where's the rude?

[00:15:40] Speaker 01:
Where's the testimony that it was rude?

[00:15:42] Speaker 01:
It was abrupt.

[00:15:43] Speaker 01:
I didn't see the charge that it was rude.

[00:15:45] Speaker 02:
The charge wasn't it was rude, but Officer Spikes testified that it was rude.

[00:15:49] Speaker 02:
He found the conduct to be rude.

[00:15:51] Speaker 02:
It was part of the overall picture.

[00:15:53] Speaker 01:
If she really was just... What was part of the overall picture?

[00:15:56] Speaker 02:
Pardon me?

[00:15:57] Speaker 01:
But I mean, the charge was that she said, I didn't work for that guy.

[00:16:00] Speaker 02:
Well, the charge, it wasn't separate charges.

[00:16:03] Speaker 02:
This was all one incident.

[00:16:04] Speaker 01:
Well, I know.

[00:16:04] Speaker 01:
If you have three separate specifications in a charge, right?

[00:16:14] Speaker 02:
Well, they weren't even broken out into specifications.

[00:16:16] Speaker 01:
Oh, don't they look like it?

[00:16:18] Speaker 02:
They weren't separated out.

[00:16:19] Speaker 02:
This was one instance.

[00:16:19] Speaker 01:
What would happen if we found that one, let's assume, for example, that we found one of the three, take the first

[00:16:25] Speaker 01:
and we found there was no substantial evidence to support that.

[00:16:28] Speaker 01:
Wouldn't we have to vacate the decision to send it back?

[00:16:30] Speaker 02:
Well, I think you can't say that this conduct was so minor that it didn't justify anything.

[00:16:35] Speaker 01:
It's not our judgment.

[00:16:35] Speaker 01:
Doesn't our case law say that if you had specifications and one of them falls out and the agency hasn't made a showing in front of the board that they would have taken the same action even on two of the three charges, you send it back?

[00:16:48] Speaker 02:
Well, but I think his argument isn't necessarily a substantial evidence.

[00:16:51] Speaker 02:
He's claiming that what happened wasn't sufficient enough to justify

[00:16:54] Speaker 01:
He's made it clear that he doesn't think there's substantial evidence to say that, saying to someone, I didn't work for you, that that equals misconduct.

[00:17:05] Speaker 02:
Right, but you can't just take one part of the charge out and then say, well, that doesn't arise to misconduct, so the rest can't arise to misconduct.

[00:17:11] Speaker 01:
Well, my point is, how do I know that the agency would have taken the same action it did here if she had one of these events correctly charged against her, say, instead of three?

[00:17:22] Speaker 02:
Because his whole argument is that's so minor, she couldn't have been removed for that.

[00:17:26] Speaker 02:
You can't find on the one hand that that's so minor, she couldn't be removed for that, and then say, oh, but this other stuff is not significant, or wouldn't stand alone.

[00:17:36] Speaker 01:
Not when the whole ball of wax is accumulatively anyhow.

[00:17:40] Speaker 01:
The reason why they are removing her is not because of this offense.

[00:17:45] Speaker 01:
They're removing her because of, what, three actual grievances before and four

[00:17:52] Speaker 01:
recommended things?

[00:17:54] Speaker 02:
You're right, Your Honor.

[00:17:55] Speaker 02:
It's the cumulative effect.

[00:17:56] Speaker 02:
You have to look at the whole picture to see if it was sufficient enough to justify any penalty.

[00:18:01] Speaker 02:
I agree with you, if there wasn't evidence that she said that to him, then you would have an issue of whether the rest would stand alone.

[00:18:07] Speaker 02:
But when you're making an argument that if she hadn't done that, there wouldn't be sufficient evidence, that wouldn't justify a charge, that completely conflicts with saying, on the other hand, that, well, let's remove that and then the rest can't stand.

[00:18:22] Speaker 02:
You have to look at it as an integrated whole because that's what the agency did.

[00:18:27] Speaker 02:
And so I think that that in addition shows that she wasn't just there trying to further the agency's interest.

[00:18:37] Speaker 02:
If she really was interested in just obtaining a state charge and not avoiding doing work, then why was she complaining about her coworkers pawning work off?

[00:18:49] Speaker 02:
And why did she try and get out of taking the call in the first place?

[00:18:53] Speaker 02:
I think there was testimony from Agent Dixon, her supervisor, that when you look at the whole picture, it was clear that she was trying to get out of performing work.

[00:19:03] Speaker 02:
And this was part of a practice that had happened in the past.

[00:19:08] Speaker 02:
I think, as you noted, the arbitrator had found that this instance standing alone wouldn't have justified removal.

[00:19:15] Speaker 02:
But it was the fact that this was her

[00:19:17] Speaker 02:
her fifth time having been sanctioned for this.

[00:19:21] Speaker 02:
And I think that the other prior charges were substantially similar in that they involved cases where she was trying to get out of performing work or she was being rude and unprofessional.

[00:19:32] Speaker 02:
And I think that the agency certainly is entitled to find that part of her job was to maintain relations with these local law enforcement

[00:19:40] Speaker 02:
and that her conduct at the airport undermined her ability to do that.

[00:19:46] Speaker 02:
So I do think that when you look at the four prior instances on top of what happened here, that would show that the penalty of removal was not totally unwarranted.

[00:20:02] Speaker 02:
Now, they are arguing in this case that the agencies claim that they didn't trust her

[00:20:08] Speaker 02:
is undermined by the fact that they had her to continue, purportedly had her perform all of her duties.

[00:20:14] Speaker 02:
But the agency relied primarily on the lack of ability to be rehabilitated, a Douglas factor, not the lack of trust.

[00:20:22] Speaker 02:
And certainly it's one thing for someone who knows that they're facing charges to be on their best behavior.

[00:20:30] Speaker 02:
But as Agent Dixon's conduct in the past has shown,

[00:20:35] Speaker 02:
Once she's been sanctioned, she reverts back to her old ways.

[00:20:40] Speaker 02:
So I don't think that it was totally unwarranted for the agency to conclude that while she may have behaved while she was being charged, that doesn't show that she has a potential for rehabilitation.

[00:20:53] Speaker 01:
Totally unwarranted isn't really the standard, is it?

[00:20:55] Speaker 02:
Yes.

[00:20:56] Speaker 01:
Really?

[00:20:57] Speaker 02:
Totally unwarranted is the standard, yes.

[00:20:58] Speaker 01:
I thought we were asking whether substantial evidence supports something.

[00:21:02] Speaker 02:
I'm sorry, totally unwarranted is under penalty.

[00:21:05] Speaker 01:
What the agency did wasn't totally unwarranted.

[00:21:08] Speaker 02:
No, no, the substantial evidence is whether or not there was proof of the conduct.

[00:21:13] Speaker 02:
Then when you look at the penalty, the penalty, whether or not that was the appropriate penalty is when you get into the totally unwarranted standard.

[00:21:21] Speaker 02:
I'm sorry if I was unclear on that point.

[00:21:24] Speaker 02:
So that is the last point I would like to make on the penalty issue is that

[00:21:31] Speaker 02:
there wasn't evidence that she performed all of her functions.

[00:21:35] Speaker 02:
There was no evidence that they ever sent her back to Jacksonville Airport or that she interacted with Officer Spikes.

[00:21:41] Speaker 02:
In fact, her testimony... Just touch on one other thing.

[00:21:44] Speaker 04:
Your opposing counsel said it's the norm that border patrol agents are aggressive in their dealings with the public.

[00:21:53] Speaker 04:
I want you to discuss that.

[00:21:57] Speaker 02:
First of all, that is not the appropriate standard.

[00:22:00] Speaker 02:
They should not be overly aggressive.

[00:22:03] Speaker 02:
And in particular here, we're not dealing with her interaction with an alien in any event.

[00:22:08] Speaker 02:
This was her interaction with another law enforcement officer.

[00:22:12] Speaker 02:
Even if she were correct that they can be nasty to aliens, which the government's position is that's completely inappropriate, that won't even be relevant.

[00:22:21] Speaker 02:
She was being nasty to a local law enforcement agent that they rely on to take aliens into custody.

[00:22:28] Speaker 02:
So she shouldn't have treated him

[00:22:30] Speaker 01:
It just strikes me as odd that arguments between the state and federal officials about who's supposed to do what kind of work, hard for me to believe that that is misconduct.

[00:22:47] Speaker 01:
It probably happens every day.

[00:22:49] Speaker 01:
Constant argument back and forth.

[00:22:50] Speaker 01:
Whose job is it?

[00:22:51] Speaker 01:
Who's supposed to be doing this?

[00:22:53] Speaker 02:
That's contrary to Officer Spike's testimony.

[00:22:55] Speaker 02:
He testified that he never had anyone push him to make charges.

[00:22:59] Speaker 02:
And even if she were correct, it would be legitimate for her to say, can you put state charges on this guy?

[00:23:05] Speaker 02:
That's not all she did.

[00:23:06] Speaker 02:
She repeatedly kept pushing him, even after he had indicated he wasn't going to press charges.

[00:23:12] Speaker 02:
And it's important to note here that Officer Spikes had already spoken with ICE, and they had already determined that in this case, ICE was going to handle this case.

[00:23:22] Speaker 02:
It wasn't up to BPA Dixon to make that determination, particularly when Officer Spikes had decided a state arrest wasn't warranted.

[00:23:29] Speaker 02:
And she and ICE had determined that ICE was the proper agency to process this already.

[00:23:35] Speaker 02:
So whether or not that debate may have been appropriate, that had already happened with ICE.

[00:23:40] Speaker 02:
She was just there to pick him up and take him into custody and start processing him.

[00:23:44] Speaker 02:
And she obviously didn't want to do that.

[00:23:46] Speaker 02:
And that potentially damaged the relations with the Jackson burial pit.

[00:23:53] Speaker 02:
If Your Honor's have no further questions, I respectfully request that this court-affirmed decision be arbitrated.

[00:23:58] Speaker 02:
Thank you.

[00:24:03] Speaker 03:
Your Honor, if I could just briefly comment to a couple issues raised by my colleague.

[00:24:07] Speaker 03:
First off, if I did use the language, the norm to be aggressive, I'd certainly misspoke.

[00:24:11] Speaker 03:
I think a certain situation certainly can rise to that.

[00:24:14] Speaker 03:
What I did want to focus on was the comment of the cumulative effect of the prior disciplinary actions.

[00:24:20] Speaker 03:
That argument says is that she pretty much was converted to an at-will employee.

[00:24:23] Speaker 03:
That if someone perceived her as having a nasty attitude or just not being nice enough, she's fired.

[00:24:30] Speaker 03:
And there's the just cause.

[00:24:31] Speaker 03:
And I just can't see that as being the standard because I think you're exactly correct, Your Honor, is that some of these conversations between law enforcement officers, especially out of the eyes of the public, can get heated as to how certain situations

[00:24:43] Speaker 03:
should resolve.

[00:24:44] Speaker 03:
And I think that's exactly what was happening here.

[00:24:46] Speaker 03:
And then if you parallel that to what group here, Agent Metessian testified to.

[00:24:50] Speaker 04:
Is that the record testimony relating to that?

[00:24:55] Speaker 04:
That conversations between law enforcement officers get heated?

[00:24:59] Speaker 03:
In order to keep your appendix as small as possible, I think I cited to the arbitrator's decision that's cited to the record.

[00:25:04] Speaker 03:
And I believe that starts on page 32 of the 20 appendix.

[00:25:07] Speaker 03:
It's about four pages where it's discussed, but I think it starts at the bottom of 32.

[00:25:13] Speaker 03:
So if her conduct, because I do want to wrap up quickly, Your Honor, is parallel and the same as her peers, then how is that misconduct that can warrant the loss of her career?

[00:25:25] Speaker 03:
And then we look at the remaining two allegations in that specification of inappropriate conduct.

[00:25:31] Speaker 03:
All we have left is I don't know that person, which is a very normal thing for someone to say and is, well, it works being pond off on me, which law enforcement officer to law enforcement officer, they're somewhat peers, even though they work for different governments, different agencies.

[00:25:44] Speaker 03:
That being said, we think there's ample reason here for the court to reverse this arbitrator's decision in order to reinstate it, unless you have any further questions.

[00:25:51] Speaker 03:
I have further questions.

[00:25:52] Speaker 04:
I'm looking at 32 through 35.

[00:25:54] Speaker 04:
And I see what I said to you, which is that the officer said he had never had that kind of experience before.

[00:26:04] Speaker 04:
But I don't see anything that says that it's the norm that police officers get into heated discussions about.

[00:26:12] Speaker 03:
I think I misunderstood what you were asking for, Your Honor.

[00:26:16] Speaker 03:
I thought you were asking about Agent Metessian's testimony as to how he handled these situations with deputies in his area, in terms of impressing upon those deputies to impose state charges, just like Agent Dixon was doing here.

[00:26:30] Speaker 04:
I don't see any heated discussion in there.

[00:26:36] Speaker 04:
You said that it was the norm.

[00:26:38] Speaker 03:
For a heated discussion?

[00:26:40] Speaker 03:
Yes, she did.

[00:26:42] Speaker 03:
I suppose it could rise to that, but if that's in the record, I don't think it's in the record.

[00:26:45] Speaker 03:
But it can certainly rise to that, I think, in terms of how things should resolve.

[00:26:49] Speaker 03:
But I don't think this conversation ever really got heated.

[00:26:51] Speaker 03:
I mean, from what Officer Spikes testified to was that he said he felt uncomfortable.

[00:26:56] Speaker 03:
But nowhere in the specification do you see the word heated.

[00:27:01] Speaker 04:
Fine.

[00:27:01] Speaker 04:
Anything else?

[00:27:02] Speaker 03:
Nothing, Your Honor.

[00:27:03] Speaker 03:
Thank you.