[00:00:00] Speaker 01:
Very well prepared, and the court appreciates it.

[00:00:03] Speaker 01:
Next case, 2015-3144, Harvey versus MSPB.

[00:00:39] Speaker 01:
Before we get started, I don't want to use your time, but I want to bring something to your attention, both counsel.

[00:00:46] Speaker 01:
The court realized in reviewing the matter for this case that in the appendix, which we understand to be prepared, Mr. Kirkpatrick, you included documents which

[00:01:01] Speaker 01:
had a lot of personal information about your client that I think you may not necessarily want public, including a social security number.

[00:01:08] Speaker 01:
I have had, well, I mean, this is you and your client.

[00:01:12] Speaker 01:
So I actually had the appendix removed from our public website after I realized that they were in there.

[00:01:19] Speaker 01:
I leave it to you.

[00:01:20] Speaker 01:
I will give you until Monday, if you would like to file a corrected version of the appendix that redacts his social security number, we'll post that on the

[00:01:30] Speaker 01:
website.

[00:01:31] Speaker 01:
If you don't file a redacted version by Monday, I'm going to put back up the old one with the understanding that you know that it has his social security number in it.

[00:01:39] Speaker 01:
But I just kind of thought that must have been inadvertent.

[00:01:43] Speaker 03:
Yes, it was.

[00:01:44] Speaker 01:
Thank you.

[00:01:44] Speaker 01:
And so I think there are, what are the pages that we founded on of the appendix just so that you can focus your effort?

[00:01:52] Speaker 01:
It's just two pages, JA 138 and JA 390.

[00:01:56] Speaker 03:
390?

[00:01:59] Speaker 01:
138 and 390.

[00:02:01] Speaker 01:
So if you just file an electronic version by Monday, then we can get it back up on the web.

[00:02:05] Speaker 01:
And if you don't, then I'm going to post it.

[00:02:09] Speaker 03:
I appreciate that.

[00:02:14] Speaker 01:
All right.

[00:02:14] Speaker 01:
Please proceed.

[00:02:15] Speaker 03:
May it please the court, Joel Kirkpatrick, your honors, on behalf of Seamus Harvey, the appellant in this case.

[00:02:21] Speaker 03:
We're here as the court is aware, reading the briefs, that Mr. Harvey

[00:02:26] Speaker 03:
has established that he's an employee within the meaning of 7511.

[00:02:30] Speaker 03:
Obviously, the issue of the case when we had a hearing concerned whether or not his previous employment with the Pentagon police force was the same or similar to his position.

[00:02:43] Speaker 02:
Part of your problem seems to me.

[00:02:48] Speaker 02:
You rely on Korodeshi extensively.

[00:02:55] Speaker 02:
It seems to me that part of your problem is the distinction between the two is the amount of retraining.

[00:03:01] Speaker 02:
Kardashian seamlessly went into the new position, and Mr. Harvey had extensive retraining.

[00:03:09] Speaker 03:
You bring up a good point, Your Honor, because I didn't really see anything in this court's case law that really addressed this issue.

[00:03:16] Speaker 03:
I saw some other cases here.

[00:03:19] Speaker 03:
And like I was going to point out in, I believe it's Benedict, the AJ really relies on that, Judge Brooks.

[00:03:25] Speaker 03:
He relied on that, but part of the issue was it wasn't exactly the same thing because this person had 65 hours of training and still was unable to qualify for whatever the position was.

[00:03:35] Speaker 00:
Isn't your more fundamental problem with relying on Cordesci in that in that case, we vacated and remanded for a jurisdictional hearing.

[00:03:43] Speaker 00:
What we said is it's not sufficiently clear that these positions are dissimilar.

[00:03:49] Speaker 00:
or would require different training or different requirements.

[00:03:53] Speaker 00:
Here you had your jurisdictional hearing and we have factual findings with respect to the distinctions between the positions and training.

[00:04:02] Speaker 03:
Correct.

[00:04:03] Speaker 03:
I would also say this, obviously we don't agree with Judge Brooks' math and the hours that he calculated, one of the main issues or one of the main arguments we make,

[00:04:14] Speaker 03:
is the Spanish language class, which was not required at the time, it could be opted out.

[00:04:20] Speaker 01:
Even if it was not required and it could be opted out, it would take 200 hours out.

[00:04:26] Speaker 01:
You'd still have 180 hours worth of additional training above and beyond.

[00:04:31] Speaker 01:
That's four and a half weeks.

[00:04:32] Speaker 01:
That's a full month of someone's life in training.

[00:04:35] Speaker 01:
When we bring on new employees, it's

[00:04:37] Speaker 01:
half of a day.

[00:04:38] Speaker 01:
Sure.

[00:04:39] Speaker 01:
So a month seems like a lot.

[00:04:41] Speaker 03:
Well, yes.

[00:04:42] Speaker 03:
And again, if we kind of cook that down a little bit and boil it back a little bit more, I mean, the testimony, what Seaman or Ms.

[00:04:50] Speaker 03:
Seaman and Mr. Bonner testified to was, well, there was differences in, say, the firearms training course.

[00:04:57] Speaker 03:
We had a different training course.

[00:04:58] Speaker 03:
You can't count those hours because our silhouettes were human.

[00:05:04] Speaker 03:
Whereas the generic silhouettes of the FLETC, the Federal Law Enforcement Training Center, were blue silhouettes.

[00:05:11] Speaker 03:
And they were also claiming that the ICE instructors that instructed these agents down there were also pool instructors.

[00:05:19] Speaker 03:
And how it works at FLETC, this is a little off the cuff, but how it works down there is all these instructors from various agencies that are down there train all the academy.

[00:05:29] Speaker 03:
I mean, they train everyone, not just their own individual agency.

[00:05:33] Speaker 01:
Apart from the training, and I think you've made several really good points about that, I mean, this, unfortunately, is after an evidentiary hearing where we have a lot of discretion.

[00:05:43] Speaker 01:
And the other thing they relied on was some of the differences between the actual job.

[00:05:49] Speaker 01:
And one of the significant ones, it seems to me, is having to deal with illegal immigrants and having to contend with them as a police officer, as a security guard.

[00:05:58] Speaker 01:
Any of those positions?

[00:06:01] Speaker 01:
you don't have a continuing obligation to deal with the shuttle and you don't have to go through and figure out now what do we do with them.

[00:06:08] Speaker 01:
As an INS agent, it's not simply a matter of arresting them, of identifying and detaining a person who has done something wrong.

[00:06:16] Speaker 01:
You then have to process them all the way through and deal with them.

[00:06:19] Speaker 01:
And that's a significant difference that takes the two jobs and makes them seem

[00:06:25] Speaker 03:
And I appreciate that comment because I think that triggers court as you hear.

[00:06:28] Speaker 03:
Because I think the court said, wait a second, you can't just say that if it's different agencies and different missions where you have a FAM, Federal Air Marshal, and an immigration agent, just because one's mandate is to investigate foreign nationals and illegal aliens and one is to maintain security on airplanes, they're both federal law enforcement agencies.

[00:06:50] Speaker 03:
That's kind of the point of us coming up here.

[00:06:53] Speaker 00:
But you could compare those two as individuals who both have obligations to not just deal with, but to, when appropriate, detain, arrest.

[00:07:07] Speaker 00:
I mean, you're not saying that in the prior position that he would have had

[00:07:13] Speaker 00:
the obligation to process the individual, right?

[00:07:16] Speaker 03:
Well, yeah.

[00:07:18] Speaker 03:
And again, to kind of trigger and piggyback on what you're saying is that, you know, he came across foreign nationals occasionally on his position.

[00:07:24] Speaker 03:
And when they detained them or whatever they did with them, they were called the appropriate agency.

[00:07:28] Speaker 03:
Just like they testified it here in the depositions, you know, Samantha Seaman and Jack Bonner.

[00:07:33] Speaker 03:
You know, the immigration agents were on the street looking for criminal aliens.

[00:07:40] Speaker 03:
And they happened to come across, say, kilos of cocaine.

[00:07:42] Speaker 03:
they themselves would call in DEA.

[00:07:45] Speaker 03:
The point is that just because the jobs aren't the same, just because the mandate isn't the same, obviously I'm reading Kordashe and I think Kordashe should be applied a lot more broadly than the interpretation that the board is reading this.

[00:08:00] Speaker 03:
Because if you have federal law enforcement, I used examples in my brief you probably saw, if a clerk from this office where I checked in today decided to go be a DEA agent,

[00:08:10] Speaker 03:
that I don't think that they could say, well, you know, I'm going to tack my time here at the Federal Circuit Court as a federal employee under that.

[00:08:16] Speaker 03:
No, that would be a ridiculous argument.

[00:08:18] Speaker 03:
Just like I cited, you know, cases in my brief about where it was obvious where somebody tried to tack or had a six-year gap in their federal employment, they couldn't do that.

[00:08:28] Speaker 03:
There's obviously the requirements of employee go far beyond just the, you know, same or similar.

[00:08:34] Speaker 03:
I think the point is, is if you have

[00:08:36] Speaker 03:
an employee who was in federal law enforcement doing the same exact same similar type stuff.

[00:08:43] Speaker 03:
I don't think the decision in core dashi somehow limits that and I don't think it's a problem.

[00:08:48] Speaker 00:
It's a continuum.

[00:08:49] Speaker 00:
Yeah.

[00:08:51] Speaker 00:
And there are factual determinations that have to be made whether or not in that continuum you have jumped off of it.

[00:08:59] Speaker 00:
And I want to go back to the Spanish language thing you said you could opt out of it but only the

[00:09:04] Speaker 00:
Judge Brooks made the finding, you could only opt out of it if you could establish that you've not satisfied the knowledge requirement.

[00:09:09] Speaker 00:
So it wasn't really an opt-out-able thing if you couldn't speak Spanish.

[00:09:14] Speaker 03:
Right, I agree.

[00:09:14] Speaker 03:
You know, if you had a employee that came on, they hire Spanish speakers, and if they had some sort of ability to show their proficiency in Spanish, then they wouldn't have to take the class.

[00:09:25] Speaker 03:
Now they changed that after my client went through the academy.

[00:09:28] Speaker 03:
But that's continuing training in federal law enforcement.

[00:09:31] Speaker 03:
That's why I bring up the point.

[00:09:32] Speaker 03:
This was a different class.

[00:09:35] Speaker 02:
Where does a Pentagon security guard go outside of his or her post to hunt, say, in an urban environment for persons who may be lawbreakers?

[00:09:54] Speaker 03:
Well, they don't.

[00:09:55] Speaker 03:
You bring up a good point.

[00:09:56] Speaker 03:
They're on the Pentagon and other facilities that the Pentagon controls, not just at the Pentagon.

[00:10:01] Speaker 03:
So obviously, it's not just a glorified security guard.

[00:10:04] Speaker 03:
They're actually police officers.

[00:10:07] Speaker 03:
And you know what I'm talking.

[00:10:08] Speaker 03:
So they would investigate a wide range, such as the FBI.

[00:10:12] Speaker 03:
And they have a less mandate.

[00:10:13] Speaker 03:
But if they run across some sort of violations, that would trigger another law enforcement.

[00:10:20] Speaker 02:
It's not their prime goal.

[00:10:23] Speaker 02:
They're protective.

[00:10:26] Speaker 02:
Correct.

[00:10:27] Speaker 02:
They're not primarily looking for

[00:10:31] Speaker 02:
detecting and locating lawbreakers.

[00:10:36] Speaker 03:
You're right, Judge, they have a limited mandate, but IEA agents have a limited mandate.

[00:10:41] Speaker 03:
They're not 1811s.

[00:10:44] Speaker 03:
The Department of Homeland Security has their own 1811 branch.

[00:10:47] Speaker 03:
These are 1801s with the immigration enforcement agents.

[00:10:50] Speaker 03:
They have a limited mandate to only look for and

[00:10:55] Speaker 03:
by our uh... investigate uh... illegal aliens or or whatever distinctions and differences with respect to that law enforcement pension well again i i guess again it becomes the core dashy doesn't really go into that and i'm still looking and you know that i've spent a lot of time trying to kill that because in court actually they both would have had the same right to last correct but again i i guess the way i read it is that it's same or similar i mean

[00:11:24] Speaker 03:
Are we requiring exactly the same occupational code?

[00:11:27] Speaker 03:
Are we requiring the exact classification series?

[00:11:32] Speaker 03:
Or are we looking to the nature of the position itself?

[00:11:35] Speaker 01:
So is part of your argument in response maybe along the lines of, I don't know, I mean, I have to say, I sat around and thought of why does the nature of the pension tell me anything about whether it's the same or similar position?

[00:11:48] Speaker 01:
As a federal judge, the biggest perk we have is we get our salary for life.

[00:11:52] Speaker 01:
At the age of 65, if I've served for 15 years, I keep getting my salary.

[00:11:56] Speaker 01:
There are a million other judges out there, including some in this building, Article 1.

[00:11:59] Speaker 01:
There are judges in state courts.

[00:12:01] Speaker 01:
They're sitting here, and they're judging.

[00:12:03] Speaker 01:
And some of them are appellate court judges, just like me sitting in a panel.

[00:12:06] Speaker 01:
They don't actually have those pensions.

[00:12:08] Speaker 01:
I don't know how the nature of that form of compensation

[00:12:13] Speaker 01:
tells me anything at all about the nature of the job duties and whether... Well, I don't think it has any bearing on this.

[00:12:18] Speaker 03:
I don't think it has any relevance to the argument that I'm making, you know?

[00:12:22] Speaker 03:
I mean, it has no relevance as to whether or not their positions are same or similar.

[00:12:26] Speaker 00:
Well, to play the devil's advocate here with both of you, apparently, but one of the reasons that they differentiate, and I'm not going to get into what federal judges deserve or don't deserve, but one of the reasons they differentiate with respect to the law enforcement pension

[00:12:39] Speaker 00:
is that one of the factors that go into deciding who gets those pensions and who doesn't is because there is a greater risk to law enforcement officers over the course of their career and that they are then compensated for that with a higher pension.

[00:12:55] Speaker 00:
So doesn't that at least reflect that some decision had already been made that the prior position your client held didn't carry those same risks?

[00:13:04] Speaker 03:
Well, I think specifically as it relates to

[00:13:08] Speaker 03:
the argument I'm making.

[00:13:09] Speaker 03:
Again, it's more of a broad argument.

[00:13:11] Speaker 03:
Is it same or similar?

[00:13:12] Speaker 03:
And I think if we look at the positions, I used other examples in there.

[00:13:16] Speaker 03:
I mean, you have cases like this court decided Davis in 2009.

[00:13:21] Speaker 03:
And that was always the same department.

[00:13:27] Speaker 03:
However, there was a complete change of the job and the argument back and forth.

[00:13:32] Speaker 03:
And this court said, no, come on.

[00:13:34] Speaker 03:
I mean, this is ridiculous.

[00:13:37] Speaker 03:
Same or similar, even though their jobs are definitely different.

[00:13:40] Speaker 03:
It had to do with math and mathematician before and statistics before that.

[00:13:44] Speaker 03:
I guess what I'm putting out to the court, and I see my times into my rebuttal, is I don't think this court really addressed what I'm bringing up.

[00:13:56] Speaker 03:
And just to be quick about the Spanish language course, my client,

[00:14:04] Speaker 03:
If he would have been able to speak Spanish and have opted out back then, we might not be here today.

[00:14:08] Speaker 03:
I might have won at the Ameribor.

[00:14:10] Speaker 03:
Is that really going to keep him?

[00:14:12] Speaker 03:
You know, and Judge Brooks calculated a four and a half weeks difference because two weeks of the initial training that he had with IEA and the Pentagon police force, there was approximately two weeks, he deduced somehow there was another two and a half weeks coming up to 180.

[00:14:27] Speaker 03:
Then he threw the 200 hours.

[00:14:28] Speaker 03:
It sounds like a lot, but when you really think about it and scale it back, you see that

[00:14:33] Speaker 03:
that my client testified, I know the judge said two-thirds, but I know he said two-thirds to 70%, was almost the same, the same instructors.

[00:14:42] Speaker 03:
So at what point is that line of demarcation to determine that it's either completely close or is it sufficient enough?

[00:14:51] Speaker 03:
But I'm going to reserve the rest of my time.

[00:14:53] Speaker 01:
Very good.

[00:14:56] Speaker 01:
Mr. Cohn.

[00:15:03] Speaker 04:
May it please the court.

[00:15:05] Speaker 04:
The MSPB correctly dismissed this case because the petitioner failed to prove he was an employee for purposes of board jurisdiction.

[00:15:12] Speaker 04:
This case is about whether the petitioner served in the same or similar position for one year, and substantial evidence in the records supports the board's determination he did not.

[00:15:23] Speaker 04:
I want to address what the petitioner's counsel had said first regarding the 180 hours and saying that was eventually whittled down.

[00:15:29] Speaker 04:
that's not supported in the record.

[00:15:31] Speaker 04:
And in fact, what the record shows, and the administrative judge's factual finding shows, is that was a petitioner's own admission that 180 hours of training was different.

[00:15:42] Speaker 01:
The Spanish language course, I'm struggling to understand the inclusion of those 200 hours.

[00:15:50] Speaker 01:
And I'm not saying there should be any sort of per se rule, but let me ask you this.

[00:15:55] Speaker 01:
If you are a INS officer,

[00:15:58] Speaker 01:
on the border in Texas, in El Paso, you have to take Spanish because everybody you're going to be dealing with is Spanish.

[00:16:05] Speaker 01:
Now suppose you transfer and you're still an INS officer and you're up in, let's see, where's one of those northern places near Canada?

[00:16:16] Speaker 01:
Somewhere up there in the frozen Arctic.

[00:16:18] Speaker 01:
You're up there near Canada and suddenly you're dealing with all these French Canadians with their improper French.

[00:16:26] Speaker 01:
So do you have to now

[00:16:28] Speaker 01:
take French in order to be able to do that job.

[00:16:32] Speaker 01:
I still think it's the same or similar job.

[00:16:35] Speaker 01:
It's just that the individuals you're going to deal with in that capacity speak a different language.

[00:16:39] Speaker 01:
So I'm wondering if it makes sense to include the Spanish language course.

[00:16:43] Speaker 01:
I mean, if he's an INS agent, for example, in Washington, DC, is he required to take the Spanish language course?

[00:16:49] Speaker 04:
The record shows that for the position, he's required to take the Spanish language course regardless of location.

[00:16:54] Speaker 04:
And it's really not the board's role to tell the Department of Homeland Security what should or should not be given to its employees in its training.

[00:17:02] Speaker 01:
This has nothing to do with whether or not they have to have the training.

[00:17:06] Speaker 01:
It has to do with whether the training has anything to do with whether the job is the same or similar.

[00:17:12] Speaker 01:
Whether that part of training has a, like, okay, for example, when you start a new job, you know how to use a telephone, but there's a new telephone system.

[00:17:19] Speaker 01:
You've got to learn how do I conference call, how do I

[00:17:22] Speaker 01:
I'm not sure that that kind of training has any impact on the nature of the job.

[00:17:30] Speaker 04:
Our role as a board really is to follow OPM's regulation.

[00:17:33] Speaker 04:
And OPM's regulation simply says that similar positions are positions where the employee could be interchanged between the positions without significant training.

[00:17:42] Speaker 04:
And if it's the Department of Homeland Security's decision that that Spanish language course is significant training, then we're required to follow that.

[00:17:51] Speaker 01:
It may well be significant training, but why is it necessarily indicative of a different position?

[00:17:58] Speaker 01:
Like I said, if we moved you up to Minneapolis, and we're telling you you've got to learn French, because everybody you're going to be dealing with is Canadians, just crossing the border in droves, does that mean you're no longer in the same position?

[00:18:13] Speaker 01:
Because any language immersion is really long-term training.

[00:18:19] Speaker 02:
to some extent doesn't reflect agency determination that a particular language is more useful for dealing with a proportion of illegal aliens as opposed to others.

[00:18:39] Speaker 04:
I agree with Judge DeWalt there and I think this is a decision that needs to remain within the discretion of the Department of Homeland Security.

[00:18:44] Speaker 00:
Would the case be different then if he already satisfied the knowledge requirement?

[00:18:48] Speaker 00:
Would we just throw that out then?

[00:18:51] Speaker 04:
I don't think the ultimate result would be different because you would still have that other 180 hours of training required for his position and that other 180 hours of training is entirely related just to immigration law in general.

[00:19:03] Speaker 00:
Sometimes it strikes me though that a Pentagon police officer is at a very high risk

[00:19:09] Speaker 00:
position because anything could happen in a Pentagon, as we know, could be an obvious target and has been an obvious target in the past.

[00:19:18] Speaker 00:
So why isn't that position just as much of a position that should be categorized as a law enforcement position as an ICE agent?

[00:19:28] Speaker 04:
Well, it's not the fact that it's not a law enforcement position, and we're not arguing it's not a law enforcement position.

[00:19:33] Speaker 04:
We're simply just arguing that not all law enforcement positions are similar per se.

[00:19:37] Speaker 04:
In a non-precedential decision from this court in amend, which the board first issued, it was found that an ATF inspector was not the same as an immigration agent because they investigated different areas of law.

[00:19:51] Speaker 04:
The ATF inspector being explosives and guns and the immigration agent being immigration.

[00:19:58] Speaker 04:
There's never been a holding from this court that says all law enforcement officers need to be treated similar just because they're law enforcement.

[00:20:06] Speaker 04:
As the board held after the hearing in this case, the record showed that, or the petitioner failed to show by preponderant evidence, that the knowledge, skills, and abilities of the position for the police officer position made the position similar to the immigration agent position.

[00:20:24] Speaker 00:
I'm guessing a lot of people would be pretty surprised if they thought they got into the federal system and they shift from one federal law enforcement job to another federal law enforcement job to understand that they're now starting over.

[00:20:38] Speaker 04:
I can't speak to as to whether or not they would be surprised or not, Your Honor, but I think OPM's classification, as you spoke to earlier to the Petitioners' Council, actually indicates that there might be a greater degree of risk as to going outside of the Department of Defense and searching for illegal aliens as opposed to just being confined within a facility and defending facilities.

[00:21:04] Speaker 01:
What about the argument that we were discussing before about retirement?

[00:21:10] Speaker 01:
Again, like the Spanish language course, I don't think there should be any per se rule in any direction.

[00:21:15] Speaker 01:
And I can see why if you have all the same retirement benefits, that may tend to tell you a little something proxy, very distant proxy, but it might tell you a little something about the jobs being similar.

[00:21:29] Speaker 01:
But just because you have different retirement programs or different

[00:21:33] Speaker 01:
types of benefits.

[00:21:35] Speaker 01:
Why does that tell me anything at all about the underlying nature of the job as it's being performed on a day-to-day basis?

[00:21:42] Speaker 04:
Well, I believe the board and the administrative judge noted that that factor isn't exactly dispositive.

[00:21:47] Speaker 04:
It's just helpful in making the determination, and it derived that factor from coordination.

[00:21:52] Speaker 01:
Why is it helpful that if you have a different retirement plan,

[00:21:56] Speaker 01:
I mean, look at the CFR and FERS, right?

[00:21:58] Speaker 01:
We get all these retirement plan cases.

[00:22:00] Speaker 01:
Early government employees are under CFR, later government employees are under FERS.

[00:22:04] Speaker 01:
Those are totally different retirement plans.

[00:22:06] Speaker 01:
That doesn't, but it's the exact same job.

[00:22:08] Speaker 01:
Like, you know, do you see what I'm saying?

[00:22:10] Speaker 01:
I don't, it's hard for me to imagine that differences in the benefits that one accrues in retirement necessarily imply that they're different jobs.

[00:22:20] Speaker 04:
Well, we derived that requirement from this court's holding in Korodeshi, which found noteworthy, but also not this positive there, that the positions are more likely to be similar because they had similar classification codes.

[00:22:32] Speaker 04:
If you look at the reverse, then you could say that they may not be similar because they do not have the same classification codes.

[00:22:38] Speaker 01:
Well, but isn't it possible that having the same codes and the same retirement speaks more about them being the same?

[00:22:46] Speaker 01:
and should carry a little more weight than the fact that they have different codes, given that there are a gazillion different codes out there that are possible, and that just the fact of different codes means they're not, you think that really implicates anything about the underlying nature of the job as performed?

[00:23:04] Speaker 04:
As Judge O'Malley stated, it might reflect an assessment by OPM about the risk taken on by each position,

[00:23:11] Speaker 01:
And given the fact that the... Well, that's why I said it should never be a per se rule, because I think you're right about that.

[00:23:16] Speaker 01:
I think that you're right to pick up on that.

[00:23:18] Speaker 01:
And in this case, I think that that is actually maybe a reason to think maybe it does make a difference here.

[00:23:27] Speaker 01:
That's why I was very careful to say from the very start it shouldn't be a per se rule.

[00:23:30] Speaker 01:
But in general, given the vast number of employment codes that exist within the government, it seems strange to me to say there's weight

[00:23:41] Speaker 01:
given to the differing codes.

[00:23:44] Speaker 04:
Well, we're not asking for this court to issue a per se rule either way as much as we're just saying that this was one factor that was helpful to the administrative judge in determining whether or not they were similar.

[00:23:55] Speaker 01:
Well, I'm just not sure that it's worthy of any weight in this case.

[00:23:59] Speaker 01:
The codes, I understand the retirement point with the codes.

[00:24:03] Speaker 01:
You've replaced, I was talking retirement and you brought in codes and now we're morphing.

[00:24:07] Speaker 04:
The codes are basically indicative of which position gets which retirement benefit.

[00:24:13] Speaker 04:
The retirement code, I think it's M, for the immigration agent position just indicates that you get additional law enforcement pension that you don't get for the police officer position.

[00:24:28] Speaker 04:
If there's no further questions.

[00:24:30] Speaker 01:
OK.

[00:24:30] Speaker 01:
Thank you, Mr. Fung.

[00:24:33] Speaker 03:
Mr. Patrick?

[00:24:35] Speaker 03:
Just a few comments, Your Honor.

[00:24:37] Speaker 03:
You brought up a good point.

[00:24:40] Speaker 03:
There's a changing mandate, I would imagine, with immigration.

[00:24:43] Speaker 03:
There's a changing mandate with what languages are actually important now.

[00:24:47] Speaker 03:
That's changed around the world.

[00:24:49] Speaker 03:
We see what's going on around the world.

[00:24:50] Speaker 03:
I mean, they may require French speakers.

[00:24:53] Speaker 03:
They may require Arabic speakers.

[00:24:54] Speaker 03:
They may require all kinds of things that everyone has to get retrained on that's already been there, that's been there for a long time.

[00:25:00] Speaker 01:
Another point is that... I don't think we're likely worried about the Canadians.

[00:25:03] Speaker 03:
Well, that's true.

[00:25:04] Speaker 03:
I thought I'd throw that in to be fair.

[00:25:07] Speaker 03:
But I just think that this court hasn't really dove into that because I think there's more of a two-step process that I see.

[00:25:16] Speaker 03:
You have to determine the positions themselves, how they're similar.

[00:25:18] Speaker 03:
And then you can talk about training.

[00:25:20] Speaker 03:
I think the board wants to focus only on training only, saying, look how much more it is.

[00:25:24] Speaker 03:
Whether you agree or not with 180 hours, 380 hours or less, I think you really have to take that two-pronged look.

[00:25:33] Speaker 03:
Are they federal law enforcement officers?

[00:25:35] Speaker 03:
Do they do the same thing, carry guns?

[00:25:37] Speaker 03:
or is one a clerk and one now is a chemist, whatever it may be.

[00:25:40] Speaker 03:
There's got to be something, a bright light that this court can just say, you know, we need to make a decision on this because same or similar does not mean exact.

[00:25:49] Speaker 03:
And I think that's what the board wants.

[00:25:52] Speaker 03:
I think that's what counsel's arguing.

[00:25:54] Speaker 03:
I think that there's been no approach because all the case law I've seen talks about distinguishing court dashing.

[00:26:00] Speaker 03:
And no one's really kind of brought that up.

[00:26:02] Speaker 03:
But my client,

[00:26:04] Speaker 03:
had the opportunity to take the Spanish language course immediately after the first thing because that's when it was scheduled.

[00:26:10] Speaker 03:
But he testified that some other people would come back later, like months later in the first year.

[00:26:15] Speaker 03:
So I have nothing further to say unless the court has any questions.

[00:26:20] Speaker 01:
Thank you, Mr. Capacitor.

[00:26:21] Speaker 01:
We take the case under submission and we thank both counsel.

[00:26:25] Speaker 01:
Our final case