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The next case is Carl Hayden versus the Department of the Air Force, 2015.

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3073.

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Mr. Smith, we're ready when you are.

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May it please the Court.

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Thank you, Your Honors.

[00:01:57] Speaker 00:
My name is Stephen Smith, and I represent Carl Hayden in this case.

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This case involves the Air Force discriminating against one of their own,

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for his service in the Air Force.

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Today, Mr. Hayden asked that you consider three distinct claims.

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If you find him on any of which, we would ask that the case be remanded to the Merit Systems Protection Board for a calculation of back pay, interest, and associated retirement benefits.

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The first claim is discrimination.

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The MSPB erred in failing to apply the proper burden-shifting spectrum and regime outlined by this court in Sheehan

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Although it found that his reserve service was a motivating factor in the Air Force's cancellation of his promotion upgrade.

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But the board found that there were other reasons.

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There were other reasons rather than his military service.

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Yes, the MSPB accredited two justifications of the Air Force's right.

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The first being that he was required to complete a desk audit.

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However, that desk audit was not required, as both the MSPB found and the Air Force concede.

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Moreover, the desk audit could have... Wasn't there evidence, though, that for a move from GS11 to GS12, a desk audit would be preferred?

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Although it may have been preferred, Your Honor, it was certainly not required.

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The imposition of the in-person desk audit of Mr. Hayden

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continued to discriminate against him based on his absence from military service and the requirement to the extent it is considered a requirement could have been completed by interviewing his supervisor, Ms.

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Chambers.

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I'm trying to figure out exactly what your position is.

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Is your position that they should have done away with the desk audit?

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That they should have accommodated him by having the desk audit be of his supervisor or by phone?

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Or are you saying he should have been entitled to a desk audit the minute he came back?

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Which one?

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Your Honor, I would first argue that the desk audit was not a legitimate reason to cancel Mr. Hayden's promotion request.

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To the extent that this answers your question, I believe that the promotion process could have been completed and should have been completed in his absence, whether that means that they

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did not impose the desk audit or had been completed with his supervisor.

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Wasn't the desk audit an established practice?

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I believe the record evidence shows precisely the contrary, Your Honor.

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The supervisor of Mr. Hayden testified that she had never had to complete a desk audit or an in-person desk audit when recommending individuals for promotion.

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But didn't the person who performed the desk audit say that for a GS11 to a GS12 move, that was the practice?

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that that was her preference, yes, your honor.

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Again, that further the imposition of the requirement continued to discriminate against Mr. Hayden due to his absence.

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As this court has recognized, absence is the most predictable consequence of reserve service.

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The fact that the desk order could have been completed despite Mr. Hayden's absence, but they held him to the additional standard that he complete this in person, continued to

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require that he be present.

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So if we agree with you on that, what's left?

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Further, the Air Force would point to the presence of surplus GS-12 and other GS-11 employees to justify their discrimination.

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Did the Air Force, did the board point to that in connection with the discrimination claim or did they only point to that in connection with the other claims?

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Your Honor, unfortunately, the MSPB's analysis is far from clear in setting out the evidence they consider for every individual claim.

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I would argue that they did, in fact, find that there was a surplus employee that would have been, was relevant for the discrimination analysis.

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What happened to that employee?

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Ultimately, that employee was, at the time of the appeal, I am not aware of what that employee was.

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Okay, so you don't know whether that employee ever became a 12 again or not.

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One of the surplus employees did, in fact, become a 12.

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But that's not the one you would have had to compete against.

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Correct.

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Though, Your Honor, I would like to say that I do not believe competition was necessary.

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I believe that the MSPB erred in failing to consider Air Force Manual Rule 19, which the Air Force concedes as relevant, includes in its brief, though it does not devote any analysis to that rule.

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Under that rule, Mr. Hayden, because he was already performing

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performing GS-12 duties could have been promoted without competition.

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All right, but even if there was, when you say could have been promoted without competition, even if there was competition, there's three different claims here.

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Some where Mr. Hayden has a different type of burden of proof and would have to prove they would have gotten the position regardless, and it's his burden, versus the discrimination claim

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What would the government's burden be?

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Is the government's burden simply to establish that he would have been subject to competition, or would the government have to establish that he would have failed in that competition?

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The latter, Your Honor.

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The government would have to establish that he would not have been promoted for legitimate reasons standing alone.

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That means without reference to his absence.

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And also he would have to show that he would not have, in fact, won the competition.

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The cancellation occurred before the competition was ever employed.

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So I would argue that the competition could not have justified the cancellation.

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Was the surplus employee surplused before this proposal to move him up to a 12?

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Yes, Your Honor.

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Okay, so that employee was floating around at the time, at the relevant time frame.

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Yes, Your Honor.

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What about the issue of how long such a process normally takes?

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There seems to be nothing in the record that would establish for us how long

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a promotion like this, assuming the dust got it went forward with the supervisor, how long would it have taken?

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I would argue that the record evidence demonstrates that the supervisor herself believed that the promotion would have been processed had Mr. Hayden not been absent.

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How quickly?

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To be honest, Your Honor, I do not believe that there is evidence suggesting a precise duration of time for how long it would have been processed.

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The only evidence is that

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Mr. Hayden's supervisor, Ms.

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Chambers, believed that the promotion would have been completed had he not been absent from military service.

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There were obviously some changes in needs.

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They said they didn't need a 12 at the time that Mr. Hayden came back, but then Mr. Hayden gets promoted to a 12 anyway.

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Is there any evidence in the record with respect to when the drop in needs first occurred and when the return of the needs

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The drop in needs occurred after the promotion had been canceled, Your Honor.

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Further, if the promotion had been timely processed, had it not been canceled due to Mr. Hayden's absence, due to military service, I would submit that the needs of the protocol office would not have changed.

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So therefore, the Air Force is attempting to justify its discrimination via the very results of that discrimination, which is both circular and confounds common sense.

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When he was promoted,

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to a 12, when he was moved up to a 12.

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Was he subject to competition at that point?

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To my knowledge, no, Your Honor.

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Turning now to the reemployment claim, which does not depend, which does not take into account the Air Force's motivation, the Merit Systems Protection Board erred when it found that consideration for the promotion was not a generally granted benefit available to all employees.

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The Air Force manual specifically contemplates the availability of positions to be upgraded and governs and provides regulations applicable to each civilian employee of the Air Force in such circumstances.

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Here, the Air Force did not follow those as the manual set out.

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It did not consider him an absentia and merely canceled his request.

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The MSPB also erred in finding that the promotion was not reasonably certain in Mr. Hayden's circumstances.

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At the outset, to the extent the MSPB is suggesting that a discretionary promotion is per se not reasonably certain, that line of inquiry and line of reasoning has been explicitly rejected by the MSPB and Rasenfloss, which explicitly overruled all cases suggesting that.

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Further, the presence of other employees is not part of the standard, the applicable standard that should be suggested.

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So to the extent that the surplus employees were considered

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in terms of the reasonable certainty of Mr. Hayden's promotion upgrade, that was legal error.

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Under the proper standard, which only should be evaluating Mr. Hayden's outstanding performance reviews, his history of merit increases, as shown by his increase from GS9 to GS11, and the pay history of employees in other similar positions, many of which had and were eventually upgraded from GS11 to GS12 as protocol specialists,

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The only record evidence suggests that, applying those factors, that the promotion was reasonably certain.

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I would further argue that, as mentioned before, Ms.

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Chambers believed that the promotion was reasonably certain absent his military service.

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What is the standard of review that we would apply to the board's determination here?

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For which claim, Your Honor?

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For this one that you're discussing, the re-employment crisis.

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I would argue that it is a matter of law.

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that should be reviewed de novo.

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It is an interpretation of the relevant CFR, which codifies the standard for which one determines reasonable certainty in a reemployment claim.

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So in looking at the facts here and applying the standard of reasonable certainty, that would be a question of law?

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No, Your Honor.

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I believe that the Merit Systems Protection Board erred in considering the presence of other GS-12 and GS-11 personnel

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that is not part of the proper standard.

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So therefore, that would be the legal error.

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Applying the correct standard, I believe that in looking at the evidence, the only reasonable interpretation is that the promotion was reasonably certain.

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Moving finally to Mr. Hayden's retaliation claim, the MSPB correctly noted that the standard is the same as that employed in its discrimination analysis.

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You will recall that the Air Force did, in fact, find record evidence showing that Mr. Hayden's military service was a motivating factor for the Air Force's adverse employment action.

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However, applying that same standard, they found that Mr. Hayden had somehow not provided evidence of discriminatory animus.

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This is the very discriminatory animus that they cited as what should have shifted the burden in Mr. Hayden's discrimination claim.

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Further, they made an explicit... Isn't it a little bit different because now we're looking at retaliation for seeking assistance from the ESGR?

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So wouldn't you have to be looking at different... wouldn't it be a different fact that you would be relying on here to show discrimination?

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Because it would be later in time.

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Thank you, Your Honor.

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I would point to the explicit finding, factual finding of the board that his absences were reserved duty were considered not only for the cancellation,

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but their continued decision not to pursue the upgrade upon his return.

[00:14:03] Speaker 04:
The Merit Systems Protection Board... But again, isn't that different than actually retaliating against him for seeking help with respect to that issue?

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Your Honor, the facts found by the MSPB as part of its discrimination analysis regarding the conduct of the Air Force and his supervisors in the meetings that occurred immediately following the day after

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he had applied with the EGSR to enforce his rights under the USERRA would suggest the opposite.

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The fact that those facts, specifically the notes of the agency which corroborated Mr. Hayden's claims that they had considered his motivation and cited his absences during that meeting, the day after meeting with the EGSR, and for the first time raised concerns

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that were totally out of character regarding his performance is in fact evidence of retaliation.

[00:15:02] Speaker 01:
Mr. Smith, you're well into your rebuttal time.

[00:15:04] Speaker 01:
You can continue or save it.

[00:15:05] Speaker 00:
No, thanks.

[00:15:06] Speaker 00:
I'd like to save it.

[00:15:07] Speaker 00:
Thank you, Your Honor.

[00:15:08] Speaker 01:
Ms.

[00:15:08] Speaker 01:
Gerber.

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The MSPB applied the correct legal standards and substantial evidence supports their decision to dismiss all three claims.

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With respect to the discrimination claim, the MSPB found that the Air Force would not have promoted Mr. Hayden into a GS-12 position, regardless of his absence, regardless of any discriminatory animus.

[00:16:03] Speaker 04:
The only thing that they relied on with respect to the discrimination claim was the need for the desk audit, right?

[00:16:10] Speaker 02:
No, Your Honor.

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Respectfully, they also, well, there's two time periods to look at.

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First, prior from March 2012 to July 2012, there was the fact that even if there had been

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The upgrade had been processed in that time.

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They had decided to go forward with reclassifying the position.

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Then there would have to be competition.

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And there were these surplus employees.

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And the board does, in fact, cite to that information in its section about discrimination.

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And that's on page JA.

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But what was the government's burden with respect to that, just to show that there would have to have been competition or that he would not have survived?

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The government's burden is to show by a preponderance of the evidence

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that Mr. Hayden would not have received this.

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And because there was this mandatory priority placement, there was a surplus GS-12 employee who had priority over Mr. Hayden in any competition, that was sufficient to establish... Did that employee ever get a promotion to a 12?

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She did receive a GS-12 position in 2014 after this opinion, after

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the board's decision.

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You mentioned March 2012.

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That's when you're saying that competition arose?

[00:17:32] Speaker 02:
No.

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March 2012 is when the upgrade request gets submitted.

[00:17:36] Speaker 02:
OK.

[00:17:37] Speaker 03:
Can you give us a timeline of when the competition arose?

[00:17:40] Speaker 02:
Absolutely.

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In late 2011, excuse me, I have a timeline here.

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Yes.

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In November 2011 is when B-Flight lost its two GS-12 positions and those employees became surplus.

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One of those was surplus throughout the entire period of this appeal.

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I don't see a finding by the board that other than the fact of competition that's referenced, I don't see a finding by the board saying that the government established that that employee, the other employee necessarily would have been chosen over Mr. Hayden.

[00:18:16] Speaker 02:
The board does not state it as forcefully as perhaps the Air Force would have liked.

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But the board does state that even if the upgrade position were filled competitively, this is on page JA11, the GS12 employees would have had internal priority over the appellant.

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That is sufficient.

[00:18:40] Speaker 04:
My problem with the desk audit is that I don't understand how you get around Erickson.

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I mean, this is dead on with Erickson.

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The only reason he can't be there for an in-person desk audit

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is because he's on military leave.

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And we said in Erickson that even if you would hold absence against any other employee, you can't hold it against a military employee.

[00:19:01] Speaker 02:
So this is actually segues to that second time period.

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So at the time the Air Force determined, we are going to do this desk audit when you return, on page JA 323, there's a line that says that

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We will perform a desk audit when he returns.

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And then as the MSPB cited on J324, there's an email from his supervisor saying, we'll reengage when you return.

[00:19:31] Speaker 02:
So at that time, there was an attempt to process this through the desk audit when he returned.

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But in July 2012, the A-flight where Mr. Hayden worked lost its additional protocol duties.

[00:19:45] Speaker 04:
I get that.

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But I don't understand why in March 2012,

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that they had the right to discretionarily hold it.

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In other words, to not conduct the desk audit in the way that could have been done with his supervisor or to do it by phone or to conclude that in this particular instance a desk audit was not necessary given the recommendations of his supervisor.

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In other words, that decision in and of itself to me seems dead on with what we said in Erickson.

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I mean, we said in Erickson repeatedly

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You cannot treat military employees the same way that you treat non-military employees.

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So the mere fact that she preferred, usually, to do this in person doesn't mean that she had the right to impose that preference on a military employee.

[00:20:35] Speaker 02:
So Your Honor, our position is that Erickson is about discriminating for the fact of the leave.

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So just because you could discriminate against someone for leave that's not military, you can't discriminate it.

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when it is military leave.

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Here there are downstream effects of that military leave, saying we're going to conduct this audit later when you're available.

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It's our position that it's not discrimination.

[00:21:00] Speaker 02:
But even if this court disagrees with that, the board's decision still does say there was discriminatory animus.

[00:21:09] Speaker 02:
In its discussion of discriminatory animus, lists that there was not a good explanation for why

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the desk audit was not completed when he returned, that there was discriminatory animus.

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But the board found, and substantial evidence supports its finding, that even if the desk audit had gone through, he still would not have received the GS-12 position because of the surplus employees, or they might have decided not to create the GS-12 position.

[00:21:42] Speaker 02:
And certainly after July 2012,

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there was no longer any need for a GS-12 position and the board found that the Air Force had sufficiently established that those valid reasons were sufficient to overcome its burden of proof.

[00:22:01] Speaker 02:
Turning to the the reemployment, actually before I do that I wanted to clarify just one thing.

[00:22:08] Speaker 02:
Mr. Hayden argues that

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he should not have had to have competition and that Rule 19 would have applied.

[00:22:17] Speaker 02:
This is in AFMAN, the Air Force Manual 36-203, Table 2.1, which the parties have discussed at length in their briefs.

[00:22:31] Speaker 02:
Rule 19 is about if there is an error in the classification, in the job description as written, it's incorrectly classified.

[00:22:38] Speaker 02:
And there's no

[00:22:39] Speaker 02:
evidence that anyone has argued that that was what happened, that when Mr. Hayden received the GS-11 position in 2010, it should have actually been a GS-12.

[00:22:53] Speaker 01:
What are we to make of the fact that he's gotten the 12 job now?

[00:22:57] Speaker 02:
Yes, Your Honor.

[00:22:58] Speaker 02:
That is another thing I wanted to clarify.

[00:23:00] Speaker 02:
He received

[00:23:02] Speaker 02:
a GS-12 position not for a position upgrade, but because someone in B flight left, he competed for that job.

[00:23:08] Speaker 02:
There was competition, and he received it.

[00:23:11] Speaker 02:
And the reason, again, that he was able to receive it was the surplus GS-12 employees had already gotten other GS-12 positions prior to his competition.

[00:23:21] Speaker 04:
So that... The thing that's troubling me in the record is that the reference to competition

[00:23:28] Speaker 04:
Still, I understand that someone has a priority, but they still have to be similarly situated in all other respects.

[00:23:36] Speaker 04:
Yes.

[00:23:36] Speaker 04:
So the fact that, I mean, again, the board never makes a finding that this other employee necessarily would have been chosen.

[00:23:47] Speaker 02:
So Jenera Hayden, and there is evidence in the record, was a GS-12 protocol specialist, the same type of role that Mr. Hayden had.

[00:23:58] Speaker 02:
and had herself very good employment history and had excellent performance reports.

[00:24:07] Speaker 02:
And that's in the record at JA 260, the pages just thereafter.

[00:24:12] Speaker 02:
So you are correct that the board never specifically states that this person would have received this job.

[00:24:18] Speaker 02:
The board instead

[00:24:20] Speaker 02:
And this is a little more clear in the reemployment discussion says, well, we're not sure if they even would have eventually decided to have a GS-12 position.

[00:24:28] Speaker 02:
Maybe it would have been processed by July 2012.

[00:24:30] Speaker 02:
But the burdens are completely different.

[00:24:32] Speaker 02:
The burdens are different.

[00:24:33] Speaker 02:
But the board's decision shows that the board determined that the Air Force, by a preponderance of the evidence, had showed that Mr. Hayden would not have gotten this job, that there were

[00:24:48] Speaker 02:
other employees with priority over him.

[00:24:50] Speaker 02:
There was another GS11 employee.

[00:24:52] Speaker 02:
There was also an issue of whether it would have even gone through at all.

[00:24:55] Speaker 04:
And all of that together... But that actually wasn't as of March.

[00:24:58] Speaker 04:
Not as of March, but as of July 2012.

[00:25:00] Speaker 02:
So whether it was gone through at all was later.

[00:25:02] Speaker 02:
Right, but if the position, and Your Honor previously was asking counsel, and it is a lack in the record, there is no evidence on the record that I'm aware of,

[00:25:14] Speaker 02:
that discusses how long these upgrades usually take.

[00:25:18] Speaker 02:
But the board does say that it's unclear whether it would have processed it even if it had gone forward.

[00:25:28] Speaker 04:
Right.

[00:25:28] Speaker 04:
But unclear whether it would have been processed doesn't help the Air Force when the Air Force has the burden in the discrimination claim.

[00:25:36] Speaker 02:
Not if the Air Force had to establish that

[00:25:41] Speaker 02:
this particular way is how he would have not gotten the job.

[00:25:44] Speaker 02:
The point is that whether they decided not to upgrade the position, whether it didn't get upgraded before July 2012 and circumstances changed, or whether there was this need for competition and there was another protocol specialist who had mandatory placement priority over him, all of those together, the board determined that is sufficient to establish by preponderance of the evidence that he would not have gotten this position.

[00:26:11] Speaker 02:
is substantial evidence to support that finding.

[00:26:13] Speaker 04:
Sounds like speculative evidence.

[00:26:15] Speaker 04:
I mean, I think the government's burden would be to establish that he would not have gotten it.

[00:26:20] Speaker 04:
Not to say, well, there's a lot of factors and we can't tell.

[00:26:23] Speaker 04:
It's your burden.

[00:26:25] Speaker 04:
It's not his burden.

[00:26:26] Speaker 02:
Respectfully, Your Honor, I don't believe it's speculative.

[00:26:29] Speaker 02:
It's saying any of these paths leads to Mr. Hayden not getting these.

[00:26:35] Speaker 04:
But that assumes that we're not talking about March 2012.

[00:26:38] Speaker 02:
No, Your Honor, it does assume that we're talking about March through July 2012, because again, even if they had determined to do away with the desk audit or do the desk audit with the supervisor, there would have had to be a competition that's described by rules 20 and 21, and there were

[00:27:05] Speaker 02:
There were employees who had priority over him, who had excellent histories and were protocol specialists.

[00:27:11] Speaker 04:
There's no reason to believe.

[00:27:12] Speaker 04:
Not multiple employees, just one, right?

[00:27:15] Speaker 02:
At the beginning there were two and then I apologize, I'm not sure exactly when the second one got the job.

[00:27:25] Speaker 02:
At some point during this period there was only one.

[00:27:28] Speaker 03:
So as of March 2012, which is I think the time frame we should be looking at since that's the time before he left,

[00:27:35] Speaker 03:
You're saying there were two.

[00:27:38] Speaker 03:
I thought you had said there was one.

[00:27:39] Speaker 02:
There was one the entire period from March 2012 to after 2013.

[00:27:45] Speaker 02:
I confess I'm not sure exactly when the second one stopped being a surplus employee and got another GS12 position.

[00:27:58] Speaker 02:
I believe it was after March 2012, but I confess I do not have a

[00:28:03] Speaker 02:
a citation for you, so at least one at any given time.

[00:28:07] Speaker 02:
And the finding by the MSPB talks about two GS-12 employees and says the GS-12 employees from the B flight, and that's on JA-11.

[00:28:20] Speaker 02:
So it's talking about both of them there.

[00:28:24] Speaker 02:
So whether there's one or two doesn't really matter because there would be someone with priority to get this position, a protocol specialist with GS-12

[00:28:33] Speaker 02:
to get a GS-12 protocol specialist position before Mr. Hayden would be able to get it.

[00:28:42] Speaker 02:
Turning quickly then to the re-employment claim, we've talked largely about what would be considered the reasonably certain.

[00:28:52] Speaker 02:
We've discussed that it's very similar to the discrimination except for a different burden of proof.

[00:28:56] Speaker 02:
But I wanted to briefly touch on whether the promotion is generally granted

[00:29:03] Speaker 02:
advantage to all employees.

[00:29:07] Speaker 02:
The board found that there was no evidence that this type of promotion creating a new position would be generally granted to all employees.

[00:29:19] Speaker 02:
This isn't like a career ladder promotion where you have a job that says eventually you can get to GS12.

[00:29:25] Speaker 02:
This was having to create a new position.

[00:29:26] Speaker 01:
Isn't the opportunity available though?

[00:29:29] Speaker 02:
Not if there's no need for it.

[00:29:30] Speaker 02:
This is not a

[00:29:34] Speaker 02:
It is discretionary, but it is not discretionary and generally granted to all employees.

[00:29:39] Speaker 02:
It is specifically created in very specific circumstances.

[00:29:44] Speaker 04:
But what's recommended, it's 90 out of 100 get it, right?

[00:29:50] Speaker 02:
There is evidence on the record that Ms.

[00:29:53] Speaker 02:
Chambers testified, Mr. Hayden's supervisor, that when she recommended things, they generally went through.

[00:29:59] Speaker 02:
However, there isn't

[00:30:03] Speaker 02:
evidence that there's normally, you know, what would happen when there's a surplus employee and things change in the midst of the process.

[00:30:09] Speaker 02:
There's very little evidence about whether that is a usual circumstance and what would happen usually in that circumstance.

[00:30:18] Speaker 02:
And again, that just gets you further and further away from the generally granted to all employees situation.

[00:30:23] Speaker 02:
And if you said that something that requires competition is a generally granted promotion to all employees,

[00:30:30] Speaker 02:
That gets you to this very strange situation that Mr. Hayden is suggesting that you have to just look at the person's work history and then say, oh, well, they have good past records.

[00:30:45] Speaker 02:
And then it's reasonably certain they would get this promotion, even if it had to be competed.

[00:30:50] Speaker 02:
I see my time is out.

[00:30:52] Speaker 02:
I would like to just very briefly touch on retaliation with Your Honors.

[00:30:56] Speaker 01:
Very briefly.

[00:30:57] Speaker 02:
Very briefly.

[00:30:58] Speaker 02:
Yes, Your Honor.

[00:31:00] Speaker 02:
I just want to mention that it is important to look only post-2013 for evidence of discrimination based on the seeking the USERRA rights.

[00:31:12] Speaker 02:
And the board determined that because of the change in circumstance, there was evidence that they wouldn't have created this GS-12 position in 2013 and later.

[00:31:22] Speaker 02:
We respectfully request that the court affirm the MSPP's decision.

[00:31:27] Speaker 01:
Thank you.

[00:31:28] Speaker 01:
Thank you.

[00:31:29] Speaker 01:
Mr. Smith has a couple of minutes of rebuttal time.

[00:31:42] Speaker 00:
First to address the time frame at which a promotion takes to be processed, I would submit that Mr. Hayden's recent promotion took four to six weeks from the time it was initially submitted to be processed.

[00:31:54] Speaker 00:
I would also like to point out the fact that

[00:31:57] Speaker 00:
There are a lack of fact findings with regards to whether Mr. Hayden would have received a promotion is not a coincidence.

[00:32:04] Speaker 00:
It's because the MSPB failed to apply the correct legal standard.

[00:32:08] Speaker 00:
They required Mr. Hayden to show that he was entitled to the promotion rather than asking the Air Force to prove that he would not have received that promotion.

[00:32:18] Speaker 00:
Therefore, many of the facts that Your Honors have pointed out are lacking the record is more than just a mere coincidence.

[00:32:24] Speaker 03:
So it's your position that even though

[00:32:26] Speaker 03:
the board used the language and said that it understood what the burden of proof was and explained what the standards were and then seems to have used the language suggesting that there's a burden of proof that nonetheless, when they actually applied it, Mr. Hayden really had the burden of proof.

[00:32:41] Speaker 00:
Yes, Your Honor, and that's precisely the situation in Bequor.

[00:32:44] Speaker 00:
This court, excuse me, the MSPB reversed the initial determination, it was affirmed by this court, because they, although they recited the proper standard and

[00:32:53] Speaker 00:
inform the party regarding the proper standards, they imposed an additional requirement to show that the veteran showed he was entitled to the position.

[00:33:01] Speaker 00:
And that was reversed.

[00:33:03] Speaker 00:
Further, to the extent that your opposing counsel addresses Rule 19 today, that was not addressed in their briefs, although it was included as a relevant portion of Table 2.1.

[00:33:12] Speaker 00:
I would argue that any such arguments be waived.

[00:33:17] Speaker 04:
But we can read the rule.

[00:33:18] Speaker 00:
Certainly.

[00:33:19] Speaker 04:
The rule itself does talk about the fact that there was an improper classification.

[00:33:25] Speaker 00:
It actually, that isn't a note, it's actually directed to the fact that there is no increase in duties and Mr. Hayden was already performing GS-12 duties as detailed in the position upgrade request.

[00:33:36] Speaker 00:
So therefore I would argue that rule 19 is the applicable rule.

[00:33:39] Speaker 00:
Also rule 20 also provides for non-competitive promotions in the event that there are not similarly situated personnel.

[00:33:46] Speaker 00:
There was no such factual finding made by the Air Force, excuse me, by the MSPB in this case.

[00:33:52] Speaker 00:
Finally, with regards to the generally granted benefit, there is record evidence, I believe, that was cited by Your Honors, that only 10 out of hundreds of position upgrade requests had been rejected.

[00:34:04] Speaker 00:
10 of hundreds, so we're talking above 95%.

[00:34:08] Speaker 00:
That seems reasonably certain.

[00:34:13] Speaker 00:
I thank you, and my client thanks you for your time.

[00:34:15] Speaker 03:
Do you have any thoughts on the government's argument about Mr. Hayden having to compete and that there were two GS-12 eligible employees who he had to compete with?

[00:34:25] Speaker 00:
One of the GS-12 employees had been employed in a GS-12 position, so there is one.

[00:34:30] Speaker 00:
To the extent that that person had mandatory placement priority and should be considered, though they shouldn't under the proper rule, to the extent you credit that argument of the government

[00:34:39] Speaker 00:
There still should have been a competition that takes place.

[00:34:41] Speaker 00:
There is no showing that Mr. Hayden would not have been considered for position despite there being someone in surplus.

[00:34:49] Speaker 00:
Further, Mr. Hayden, as detailed in my previous argument, had an exemplary record and would have ended.

[00:34:57] Speaker 00:
Also, at the time the position upgrade request was submitted, that was of the supervisor, presumably, who was evaluating all of the GS-12 personnel, and she chose Mr. Hayden

[00:35:07] Speaker 00:
because he was already performing GS-12 duties.

[00:35:10] Speaker 00:
I think that her judgment, she was in the absolute best position to make that recommendation and she did so.

[00:35:16] Speaker 01:
Thank you.

[00:35:17] Speaker 01:
Mr. Smith will take the case under advisement.

[00:35:19] Speaker 01:
Thank you.