[00:00:28] Speaker 01: Next case is William Dyson versus the Department of Defense, 2015, 3076. [00:00:37] Speaker 01: Mr. Thomas. [00:00:41] Speaker 02: May it please the court, I'm Wendell Thomas. [00:00:45] Speaker 02: I'm with the law firm of Forbi and Associates in Silver Spring, Maryland. [00:00:48] Speaker 02: I represent Mr. Dyson, who's present here with me. [00:00:58] Speaker 02: Mr. Dyson makes the very simple argument that the board erred in its decision on two levels. [00:01:09] Speaker 02: Firstly, the board failed to address Mr. Dyson's constitutional due process violations claims, which were first made, Mr. Thomas, [00:01:25] Speaker 03: Am I correct that every single employee from janitor to the top at the NGA has to have a TSSCI clearance? [00:01:37] Speaker 02: That's correct, Your Honor. [00:01:40] Speaker 03: So the lack of that clearance automatically means that a person cannot work there. [00:01:50] Speaker 02: That's correct, Your Honor. [00:01:53] Speaker 02: The issue, though, and just to play this out, is that in making that determination ultimately, in terminating Mr. Dyson, it was on two levels. [00:02:02] Speaker 02: First, it was the indefinite suspension. [00:02:06] Speaker 02: And from the record, the agency found itself in a situation where Mr. Dyson's case presented to them a unique circumstance [00:02:20] Speaker 02: for which they determined at some point that they may have to promulgate some new regulations to address it. [00:02:26] Speaker 01: Isn't the only issue you're raising here is whether Mr. Dyson was entitled to a hearing? [00:02:33] Speaker 02: Yes, Your Honor. [00:02:34] Speaker 01: And isn't the law that the hearing isn't required if there's no dispute of fact? [00:02:40] Speaker 02: And I'm getting to that, Your Honor. [00:02:41] Speaker 02: There is a dispute of fact. [00:02:43] Speaker 02: And the dispute that we think is relevant to this particular matter is that [00:02:50] Speaker 02: The deciding official did, in fact, have alternatives to termination. [00:02:57] Speaker 02: The record at termination. [00:02:58] Speaker 04: Every single employee has to have a TSSCI. [00:03:05] Speaker 02: You've agreed with me on that. [00:03:06] Speaker 02: That's admitted. [00:03:11] Speaker 02: Well, Your Honor, in its decision, the board, in fact, suggested that if, in fact, there were alternatives [00:03:20] Speaker 02: removal, then Mr. Dyson would have had the right to an evidentiary hearing, his due process right to an evidentiary hearing. [00:03:29] Speaker 04: What alternative is there if he doesn't have an TSSC on? [00:03:39] Speaker 02: There would be no alternative. [00:03:40] Speaker 02: The issue for Mr. Dyson was the whole procedure by which that determination was made. [00:03:48] Speaker 02: And therein lies one of the problems with the whole process. [00:03:52] Speaker 02: We had requested that the transcript of the personal security board hearing be made available to us, at the point at which it was at the administrative judges' stage. [00:04:05] Speaker 02: We made the request. [00:04:06] Speaker 02: There was no objection from the government side. [00:04:09] Speaker 02: In fact, Mr. Rickert, who was the attorney at the time, consented to the release of that information. [00:04:14] Speaker 02: Because in that, [00:04:16] Speaker 02: It is my understanding the attorney who previously represented Mr. Dyson indicated to us, and Mr. Dyson has also told me this, some determination was made at that hearing that rather than remove Mr. Dyson, the intent was to, in fact, reinstate him. [00:04:37] Speaker 02: We were not able to make any reference to those findings or that discussion. [00:04:44] Speaker 02: Because despite our repeated requests for a copy of that transcript, it was never made available to us while it was before the administrative judges' stage, and even at the point at which the petition for review was filed with the board. [00:04:59] Speaker 02: And we think in that... Did you receive any response? [00:05:03] Speaker 02: Never did. [00:05:04] Speaker 02: And I refer the court to the request was made in the petition for review. [00:05:12] Speaker 02: It's at page six. [00:05:16] Speaker 02: And there is a footnote for where I try to explain the efforts we made to procure that document. [00:05:24] Speaker 03: I'm sorry. [00:05:26] Speaker 02: Where in the appendix? [00:05:28] Speaker 02: Not in the appendix. [00:05:30] Speaker 02: Part of the record is the petition for review following the decision from the administrative judge, the initial decision. [00:05:37] Speaker 02: The request was made to the administrative judge [00:05:41] Speaker 02: No response. [00:05:42] Speaker 02: Again, the attorney for the Department of Defense at the time, Mr. Rickert, had no problems. [00:05:48] Speaker 02: He was very, very cooperative. [00:05:51] Speaker 02: The administrative judge did not concede to a request. [00:05:55] Speaker 02: We made reference to it in the petition, in the response to the initial decision to the board, and they never addressed that. [00:06:05] Speaker 02: And we think that is relevant to the whole issue as to [00:06:09] Speaker 02: the alternatives that were available. [00:06:11] Speaker 02: Because it's clear in the board's decision that if there were alternatives, Mr. Dyson would have been entitled to an evidentiary hearing. [00:06:23] Speaker 02: And I think that was a fatal flaw with respect to how this case unfolded. [00:06:30] Speaker 02: The fact that the transcript of the personal security board hearing was not released to us. [00:06:36] Speaker 02: It is also instructive that in tab four, [00:06:39] Speaker 02: D, the declaration of Harriet Ames, who ultimately made the decision about Mr. Dyson's removal in there. [00:06:48] Speaker 02: I think there is reference to the possibility of her, the authority that she had. [00:06:54] Speaker 02: And I can read it to the court, if I'm allowed to do that. [00:06:58] Speaker 01: You may. [00:06:59] Speaker 02: Thank you. [00:07:01] Speaker 02: The declaration of Harriet Ames at paragraph four, as the division chief of personal security, [00:07:09] Speaker 02: I had the inherent authority to restore the employee's security clearance or to direct his placement on paid administrative leave. [00:07:21] Speaker 02: In Mr. Dyson's case, I considered his June 4, 2012 written response to the notice of proposed indefinite suspension in my capacity as the deciding official. [00:07:33] Speaker 02: However, I found that the proposed indefinite suspension [00:07:38] Speaker 02: was the most appropriate action to take in this case. [00:07:42] Speaker 02: There's no explanation as to why the other two options were not followed. [00:07:47] Speaker 02: And to the extent that the board had the opportunity to review the entire record in this case, and this is part of the record in the case, the fact that they have mentioned that there were no alternatives does not gel with the fact that Ms. [00:08:05] Speaker 02: Harriet Ames, in fact, indicated that there were alternatives [00:08:09] Speaker 02: So on that basis, we think that the board's decision was flawed. [00:08:13] Speaker 01: And to the extent the court... Why is that a fact question? [00:08:22] Speaker 02: It is a fact question in that... If... [00:08:31] Speaker 01: It's clear that there were other alternatives than there were other alternatives, but she didn't employ them. [00:08:39] Speaker 01: So what's the fact question for a hearing? [00:08:46] Speaker 02: Well, I understand your position, Your Honor. [00:08:49] Speaker 02: I understand your position. [00:08:50] Speaker 01: That was just a question, not a position. [00:08:57] Speaker 01: We can save the rest of your time for rebuttal if you like. [00:09:00] Speaker 01: I will, Your Honor. [00:09:04] Speaker 01: Ms. [00:09:04] Speaker 01: Murdoch-Pott. [00:09:14] Speaker 05: May it please the Court. [00:09:16] Speaker 05: Mr. Dyson? [00:09:17] Speaker 00: I'm very troubled by your brief. [00:09:19] Speaker 00: On page 7, you misdescribed the Karoo case and failed to cite contrary authority in the Crispin case. [00:09:29] Speaker 00: You cite the Karoo case as saying that 7701 doesn't require a hearing if there's no genuine dispute of material fact. [00:09:37] Speaker 00: The Karoo case does not hold that. [00:09:40] Speaker 00: It simply holds that 7701 does not apply. [00:09:43] Speaker 00: And in the earlier Crispin case, [00:09:46] Speaker 00: we specifically held that 7701 requires a hearing, and that there's no summary judgment procedure, so even if there is no dispute as to material fact, a hearing has to be held. [00:09:59] Speaker 00: And I find that very troubling, both the miscitation and the failure to recognize the existence of the Crispin case. [00:10:11] Speaker 05: Your Honor, a hearing is required to be offered under 7701. [00:10:16] Speaker 00: use miss cited the group correct if that is what you read in the brief and that is correct yes and chris been case holes that here there is a genuine if there is no genuine dispute is to material right I'm sorry what is the chris been site your honor chris been [00:10:44] Speaker 00: I find it a little astonishing that you don't know, but it's 732-52nd-919. [00:10:49] Speaker 00: It says the board does not have available to it a summary judgment proceeding citing 7701, which covers appeals to the MSPP from agency actions. [00:11:14] Speaker 00: goes extensively into the legislative history of the statute and says that there is always a right to a hearing. [00:11:21] Speaker 05: There's always a right to a hearing, but there's not always a right to an evidentiary hearing, which is congressional intent which this court informed in Frampton versus the Department of Interior. [00:11:33] Speaker 05: Full evidentiary hearings in MSPB board cases are only required when there's a dispute to facts which must be resolved before a decision can be reached. [00:11:44] Speaker 05: And that is not the case here. [00:11:46] Speaker 05: The issues that Mr. Dyson brings on appeal, whether he had received a copy of his PSAB transcript for which he had an attorney present, which he was present, which dealt with the revocation of the case. [00:12:02] Speaker 00: Did you cite the Frampton case? [00:12:03] Speaker 05: We did not. [00:12:06] Speaker 00: I'm addressing how you wrote your brief. [00:12:08] Speaker 00: And I don't think it's satisfactory, Frank. [00:12:12] Speaker 00: But go ahead. [00:12:19] Speaker 05: There is no dispute of facts here because the PSAB transcript addressed only Mr. Dyson's revocation of his security clearance. [00:12:29] Speaker 05: He was given the opportunity to respond at the hearing. [00:12:32] Speaker 05: He was given the opportunity in front of the deciding official to raise his issues, which he did. [00:12:37] Speaker 05: The only issue before the MSPB is whether he had a clearance, which was revoked, whether his clearance was a requirement for his job, [00:12:47] Speaker 05: and whether he received his procedural protections set forth in Section 7513, and if applicable, if the agency followed its own policies or regulations when removing him. [00:12:59] Speaker 05: He does not dispute that he did not receive any of his protections under 7513. [00:13:04] Speaker 05: And he does not address any policies or regulations which the agency purportedly violated when removing him. [00:13:11] Speaker 05: Because the board can only review these issues. [00:13:15] Speaker 04: I think you have an extra knot in there. [00:13:17] Speaker 04: He does not dispute that he did not receive. [00:13:22] Speaker 05: Yes, Your Honor. [00:13:23] Speaker 05: He does not dispute he received those protections. [00:13:29] Speaker 05: I appreciate your correction. [00:13:33] Speaker 05: He did receive those protections. [00:13:35] Speaker 05: And because the board properly found that he received those protections, this court should affirm the board's decision. [00:13:49] Speaker 01: Thank you. [00:13:50] Speaker 00: Just before you sit down, I point out to you that the Crispin case was cited by the dissent before the board. [00:13:57] Speaker 00: Another reason you should have been aware of. [00:13:59] Speaker 05: Yes, Your Honor. [00:14:05] Speaker 01: Mr. Thomas, you have some new bottles. [00:14:08] Speaker 02: I'll be very brief, Your Honor. [00:14:11] Speaker 02: Mr. Dyson contends that the board erred with respect to its ruling, that there were no [00:14:18] Speaker 02: dispute as to material fact. [00:14:21] Speaker 02: And on the basis of Crispin, even if there is no dispute, he's entitled to an evidentiary hearing. [00:14:27] Speaker 02: We ask, therefore, that this court reverse the board and remand this case for an evidentiary hearing. [00:14:37] Speaker 02: Thank you, Mr. Thomas. [00:14:38] Speaker 02: Thank you. [00:14:38] Speaker 02: Let's take the case under advisement.