[00:00:00] Speaker 00:
The next case for argument is 153024 Howard v. Army.

[00:00:57] Speaker 03:
Yes, may I please record David Klisham for petitioner Ernest Howard.

[00:01:12] Speaker 03:
In retrospect, I think this case is a lot simpler than these two cases that we've had.

[00:01:19] Speaker 03:
At any rate, I think the reason I decided to

[00:01:25] Speaker 03:
oral argument is because of the apparent misunderstanding and I think the totally wrong standard for mootness that was at the heart of this.

[00:01:40] Speaker 00:
What is your client seeking here?

[00:01:43] Speaker 03:
Pardon me?

[00:01:43] Speaker 00:
What is your client seeking here?

[00:01:46] Speaker 03:
My client is not sitting here.

[00:01:48] Speaker 00:
Seeking?

[00:01:49] Speaker 00:
What kind of relief does your client want?

[00:01:52] Speaker 03:
It is remand to the

[00:01:55] Speaker 03:
system protection board because the case is not moot and his retirement was involuntary.

[00:02:05] Speaker 00:
So they would conclude it was involuntary.

[00:02:07] Speaker 00:
In other words, it was in effect a discharge.

[00:02:10] Speaker 00:
And then what would his allegation be?

[00:02:14] Speaker 00:
What is his allegation in this case?

[00:02:16] Speaker 03:
Well, that the grounds for his termination are illegal.

[00:02:22] Speaker 03:
that he was not terminated on merit system principles.

[00:02:26] Speaker 03:
He was terminated on a wrong standard.

[00:02:29] Speaker 00:
And then he would be seeking back pay and reinstatement?

[00:02:32] Speaker 01:
Yes.

[00:02:33] Speaker 01:
He wants to go back to work?

[00:02:35] Speaker 01:
Yes.

[00:02:36] Speaker 02:
He does?

[00:02:38] Speaker 02:
He would be reinstated if Arthur did?

[00:02:45] Speaker 03:
Things have changed since this happened, and he is sick at the moment.

[00:02:48] Speaker 03:
I don't know whether he will actually go back to work at this point.

[00:02:52] Speaker 03:
But he certainly doesn't want to.

[00:02:55] Speaker 03:
I mean, he wants to have the opportunity to go back to work.

[00:03:00] Speaker 02:
During the process of this case, did he have that expectation or that desire, wanting to go back to work?

[00:03:11] Speaker 03:
Well, he didn't go back to work because the agency imposed the same

[00:03:20] Speaker 03:
the same requirement in the rescission of the removal.

[00:03:26] Speaker 03:
They imposed the same requirement that he had just been fired for.

[00:03:29] Speaker 03:
In other words, he didn't pass the physical agility test.

[00:03:33] Speaker 03:
We challenge the physical agility test as being totally inappropriate and illegal as applied to him.

[00:03:38] Speaker 00:
Really?

[00:03:38] Speaker 00:
In the first case, my understanding was the contention in the first case was simply that he should have been given more time.

[00:03:45] Speaker 00:
before he had to take the test, that I didn't see that you would have challenged the legality of the use of the test in and of itself.

[00:03:52] Speaker 03:
Well, I represented him throughout this, and one of the issues was that he hadn't been given enough time to take it.

[00:04:00] Speaker 03:
But the underlying issue is that it was a violation of 5 CFR

[00:04:07] Speaker 00:
Was that in the first appeal, in the first case, for the first discharge, was that something that you alleged?

[00:04:12] Speaker 03:
Well, there was really only one appeal.

[00:04:15] Speaker 03:
Well, there was a second appeal that was calendared.

[00:04:18] Speaker 03:
But the issue is that he, I mean, the issue evolved into a violation of five CFR.

[00:04:30] Speaker 03:
I can never remember the number.

[00:04:34] Speaker 00:
Maybe it evolved, but when you filed the claim originally over his discharge, what allegation did you make for the unlawfulness of his discharge?

[00:04:45] Speaker 00:
It was because he hadn't been given enough time to prepare for the test, right?

[00:04:49] Speaker 03:
Under the Army regulations, he was required to be given another year.

[00:04:53] Speaker 03:
That's correct.

[00:04:54] Speaker 02:
You don't challenge the requirement that the test be given.

[00:04:59] Speaker 03:
Yes.

[00:05:00] Speaker 03:
I mean, it eventually evolved into that because right in the time this was going on, this very issue was being litigated in an arbitration in the companion agency in North Carolina.

[00:05:13] Speaker 03:
This entire thing took place in Port Chicago in California, or Concord, California.

[00:05:18] Speaker 03:
And it's the military ocean terminal.

[00:05:24] Speaker 03:
And there's a companion terminal in North Carolina.

[00:05:27] Speaker 03:
And right at the time that this was happening, there was an arbitration going on.

[00:05:32] Speaker 03:
And that arbitration decision came down, I think, in May or June.

[00:05:38] Speaker 02:
I'd like to ask you a question that takes us back to something that Judge Prosser is asking you.

[00:05:48] Speaker 02:
And that's this.

[00:05:49] Speaker 02:
What is it that your client expects to win here?

[00:05:52] Speaker 03:
Well, he expects to win his job back, for one thing.

[00:05:55] Speaker 02:
He expects to go back to... His job back, and he wants his job back.

[00:05:58] Speaker 02:
Does he want back pay?

[00:06:00] Speaker 03:
And he wants back pay.

[00:06:01] Speaker 03:
And he wants attorney's fees.

[00:06:03] Speaker 02:
And attorney's fees.

[00:06:04] Speaker 03:
Yes.

[00:06:04] Speaker 02:
And what else?

[00:06:07] Speaker 03:
I don't know if you could get anything else.

[00:06:08] Speaker 00:
Working in the interim, right?

[00:06:09] Speaker 00:
So the back pay would be offset by any wages he's... Oh, pardon me?

[00:06:15] Speaker 00:
He's been working in the interim, correct?

[00:06:17] Speaker 03:
He has not been working in the last few months because he's been ill.

[00:06:22] Speaker 03:
But he did work for a while.

[00:06:24] Speaker 00:
Well, is the relief you're seeking that whatever this test is called is illegal, unlawful?

[00:06:32] Speaker 00:
Yes.

[00:06:32] Speaker 00:
Is the relief you're seeking that it should not be applied to him?

[00:06:37] Speaker 03:
The regulation states that a physical requirement must be waived

[00:06:49] Speaker 03:
if the agency has evidence that the employee can otherwise perform all the essential functions of the job.

[00:06:57] Speaker 00:
So did he ask for a waiver?

[00:07:00] Speaker 03:
No, he did not ask for a waiver.

[00:07:02] Speaker 00:
Why is that applicable if he didn't ask for a waiver?

[00:07:05] Speaker 03:
Because the regulation doesn't say he has to request a waiver.

[00:07:10] Speaker 03:
The regulation puts the onus on the agency that if they have evidence that he can

[00:07:17] Speaker 03:
perform the essential functions of the position, then they have to waive it.

[00:07:21] Speaker 03:
It's not something that he has to ask for.

[00:07:24] Speaker 01:
But these issues were not reached by the board, right?

[00:07:30] Speaker 01:
Yes, that's correct.

[00:07:31] Speaker 01:
I mean, we're talking about mootness here.

[00:07:33] Speaker 01:
We're talking about mootness.

[00:07:35] Speaker 01:
It may not be that he has a decent underlying case.

[00:07:39] Speaker 01:
But the question is whether it's moot.

[00:07:41] Speaker 01:
And I understand your argument that they applied the wrong standard, which seems to me to have a good deal of merit.

[00:07:47] Speaker 01:
But the problem is that he resigned from his job.

[00:07:51] Speaker 01:
So it seems to me he has no case unless he establishes a constructive discharge.

[00:07:58] Speaker 01:
Even if he would have had a case if he hadn't chosen to resign and had moved forward with his original appeal.

[00:08:07] Speaker 03:
The record is clear that he did not resign.

[00:08:11] Speaker 03:
The record is clear that when he was first terminated on March 15th, 2013, the day he was terminated, the director said to him, if you don't retire, then you're going to be removed.

[00:08:27] Speaker 03:
If you don't retire by March 18th, the following Monday.

[00:08:32] Speaker 03:
And he decided not to retire, and he was removed.

[00:08:36] Speaker 03:
And so we appealed

[00:08:38] Speaker 03:
the removal.

[00:08:39] Speaker 03:
We filed an appeal on the removal.

[00:08:41] Speaker 00:
But he was reinstated after that.

[00:08:43] Speaker 03:
He was reinstated two and a half months later, if that's correct.

[00:08:45] Speaker 00:
Okay, and then so I think Judge Dyke was talking about after he was reinstated, he retired, did he not?

[00:08:52] Speaker 03:
No, he retired as of March 15th, 2013, and that is in the record.

[00:09:00] Speaker 03:
He retired because he was removed.

[00:09:04] Speaker 03:
He didn't wait around for two and a half months and then retire after they

[00:09:08] Speaker 03:
if that's the case why didn't he go back when he was reinstated because of the terms of the reinstatement letter the reinstatement letter told him that he still had to pass the physical agility test and he could have gone back and be reinstated and then ask for the waiver well i i suppose he could have done that but the question is whether it's moot in other words does the reinstatement here all of the

[00:09:38] Speaker 01:
issues at that that word that uh... that he was fired for and they not only reimposed the physical agility test which at that point he'd he'd he felt like they didn't have to take it all pursued that he could have continued to argue that the original removal was improper and that there was a live controversy as to whether he had to perform this test but he chose not to do that we hit him and unless you can win on

[00:10:06] Speaker 01:
on the constructive removal issue, it seems to me you lose, that it's moot.

[00:10:16] Speaker 01:
As he chose not to go back to work, right?

[00:10:18] Speaker 03:
He chose not to go back to work at that time, but there's two reasons that he didn't go back.

[00:10:25] Speaker 03:
One is because they simply reimposed the physical agility test, number one, which at that point there had been an arbitration decision from North Carolina,

[00:10:34] Speaker 03:
which said that the agency had to waive this if you could perform the essential duties of the position.

[00:10:39] Speaker 03:
And this is really the core of the case and why it's a big issue that goes beyond him.

[00:10:45] Speaker 03:
Because the Army is using the physical agility test to weed out older people, to weed out people with disabilities.

[00:10:51] Speaker 00:
And that's why you see, you know... What does his personnel folder say?

[00:10:57] Speaker 00:
Does it say he was clearly discharged at one point, but then reinstated?

[00:11:03] Speaker 00:
So he never showed up again once they reinstated him.

[00:11:07] Speaker 00:
So what does his personnel file show in terms of him leaving the agency?

[00:11:14] Speaker 03:
But there's a second reason that he didn't accept it.

[00:11:17] Speaker 00:
Well, do you want to answer my question first?

[00:11:18] Speaker 03:
Well, I'm not so sure I understand the question as to what he did.

[00:11:22] Speaker 00:
What is the status with respect to the agency?

[00:11:25] Speaker 00:
Everybody's got a personnel file.

[00:11:27] Speaker 00:
If he was discharged, it would show he was discharged and removed.

[00:11:31] Speaker 00:
He never came back.

[00:11:32] Speaker 00:
He was reinstated and he didn't come back.

[00:11:34] Speaker 00:
So it's treated as if it was voluntary retirement.

[00:11:38] Speaker 03:
I know, but he wasn't involuntarily retirement at that time.

[00:11:42] Speaker 03:
He had already retired because he was fired.

[00:11:46] Speaker 03:
So he would have had to undo his retirement.

[00:11:49] Speaker 03:
It wasn't something that happened after he was reinstated.

[00:11:53] Speaker 03:
So it really wasn't a constructive termination in that point.

[00:11:57] Speaker 03:
It was simply a termination.

[00:11:59] Speaker 03:
The retirement followed from his first time that he was removed.

[00:12:03] Speaker 03:
So the issue of the constructive termination, I suppose, is somewhat relevant.

[00:12:09] Speaker 03:
But that really wasn't mitigated.

[00:12:10] Speaker 01:
But he has no case here unless he can show that his retirement should be undone on a constructive removal theory, right?

[00:12:22] Speaker 03:
Well, see, the second thing in the rescission letter was

[00:12:29] Speaker 03:
They made a decision to send him to a beginning academy.

[00:12:32] Speaker 03:
This is a person who's 69 years old, who had been in this business for 28 years, had been all through training.

[00:12:40] Speaker 03:
And they put in the letter of rescission that then he had to attend an academy.

[00:12:47] Speaker 03:
And that was the second reason that he gave for not going back to work.

[00:12:52] Speaker 03:
So there's these two controversies

[00:12:55] Speaker 03:
that were in that letter which perpetuated this issue that he was going to go back to work and simply be faced with another termination.

[00:13:02] Speaker 03:
So it was not unrealistic on his part at all.

[00:13:05] Speaker 03:
He lost complete confidence in them that they didn't want him around.

[00:13:11] Speaker 03:
Well, he lost confidence in their ability to follow the regulations, that he really wasn't required to take the physical agility test.

[00:13:21] Speaker 03:
because he could perform the essential functions of the position.

[00:13:25] Speaker 03:
Number one, and he had already completed academy training, and they had accepted him, accepted as E-X-C-E-P-T-E-D, accepted him from any further academy when the Army took over this installation in 2009.

[00:13:41] Speaker 03:
And it's a clear document of the record, yet they told him that

[00:13:46] Speaker 03:
going back he'd have to face these other two conditions.

[00:13:49] Speaker 00:
You're well into your rebuttal, so why don't you want to save that and let's hear from the government?

[00:13:56] Speaker 03:
Well, sure.

[00:13:56] Speaker 03:
I would like to just call the court's attention to the mootness standard, which is not the correct standard that was adopted by the board.

[00:14:05] Speaker 03:
They didn't correct the correct standard that you have to eradicate all of the issues that were attended to the removal.

[00:14:13] Speaker 03:
So I will handle that in my rebuttal.

[00:14:15] Speaker 00:
Thank you.

[00:14:27] Speaker 04:
May I please the court?

[00:14:29] Speaker 04:
We respectfully request that this court affirm the decision of the MSPB to dismiss it.

[00:14:32] Speaker 01:
They're arguing for the wrong mootness.

[00:14:35] Speaker 01:
I mean cases like Heartland by-products, which is our decision, makes clear that where our party and the government comes in and says this case is moot, it has to show that there's absolutely no possibility that would reoccur.

[00:14:49] Speaker 01:
And if all we had here was a removal,

[00:14:54] Speaker 01:
It seems to me that that standard would not be satisfied.

[00:14:59] Speaker 01:
I mean, you're aware of those cases that say that?

[00:15:03] Speaker 01:
A defendant's voluntary cessation does not deprive a federal court of the power to determine the legality of the practice unless subsequent events make it absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur.

[00:15:17] Speaker 01:
That's heartland.

[00:15:19] Speaker 01:
That standard, at the time of the removal, was not satisfied, was it?

[00:15:24] Speaker 04:
That standard, Your Honor, no, was not satisfied, but in the case of these, the MSP removals, is what has happened is that actions aren't considered moot in the context of these personal actions if they are returned to status quo ante and put back in the exact same position as they were left in.

[00:15:41] Speaker 04:
And that is what happened here, and that's why the

[00:15:44] Speaker 04:
removal action was dismissed but as your honor has called that attention to is that that action was actually rescinded and what we do have left here is all we do really have left is this involuntary retirement appeal which the MSBP properly found, Mr. Howard failed to prove, was involuntary and having the fact that he chose deliberately chose not to.

[00:16:05] Speaker 01:
So it's moot because he retired and he hasn't shown that it was involuntary?

[00:16:11] Speaker 04:
Well the removal action became moot when it was

[00:16:14] Speaker 04:
when it was rescinded.

[00:16:15] Speaker 04:
I mean, they did relation.

[00:16:16] Speaker 01:
No, I don't think that's true.

[00:16:17] Speaker 01:
But for the reason that I just showed to you, that that's not the standard is whether it would not recur.

[00:16:26] Speaker 01:
And since they continue to assert they had to satisfy the requirement, the controversy not only could recur, but it would recur.

[00:16:35] Speaker 04:
Wouldn't necessarily recur, Your Honor.

[00:16:37] Speaker 04:
Mr. Howard had several other alternatives besides satisfying the requirement.

[00:16:41] Speaker 01:
No, that's not the standard.

[00:16:41] Speaker 01:
The standard is not whether it would necessarily recur.

[00:16:45] Speaker 01:
The standard is whether you have shown that subsequent offense make it absolutely clear that the original wrongful behavior could not reasonably be expected to recur.

[00:16:55] Speaker 01:
You agreed that standard, I thought, was not satisfied.

[00:16:59] Speaker 04:
Well, that standard, you cannot prove certainly beyond a reasonable certainty that Mr. Howard would not

[00:17:05] Speaker 04:
be removed again, but the standard is whether or not his action was rescinded or he was returned to the status quo ante.

[00:17:10] Speaker 04:
The possibility of them removing again doesn't necessarily make a live controversy, as the agency can bring a new adverse action.

[00:17:18] Speaker 01:
It's not a question of whether it makes a live controversy, the question is whether you have shown that the old controversy is over with.

[00:17:25] Speaker 01:
And I don't see that at the time of the removal you established that.

[00:17:32] Speaker 01:
But at the same time, he seems to have resigned and would have to establish a constructive removal in order to prevail.

[00:17:40] Speaker 01:
He can't establish a constructive removal just because he says that they wrongfully suggested he'd be terminated.

[00:17:53] Speaker 04:
That is the crux of the case at this point is that Mr. Howard cannot establish a contract of removal because he cannot establish his retirement as involuntary in this instance.

[00:18:04] Speaker 04:
He can't prove that he really truly lacked a meaningful choice and likewise he really has yet to prove it as the MSP probably found a wrongful act on the part of the agency.

[00:18:13] Speaker 04:
The conclusion that he did not lack a meaningful choice is clearly supported by substantial evidence.

[00:18:19] Speaker 04:
An employee is expected to come back to work and to fight.

[00:18:22] Speaker 04:
This court has laws very clear on that.

[00:18:25] Speaker 04:
Mr. Howard had several alternatives.

[00:18:28] Speaker 04:
He could have come back to work and he could have passed the PATE.

[00:18:31] Speaker 04:
I mean, the Army specifically said, come back to work.

[00:18:34] Speaker 04:
We're going to give you time to train.

[00:18:36] Speaker 04:
We're giving you 60 days.

[00:18:37] Speaker 04:
If you don't think that's sufficient, take more time.

[00:18:39] Speaker 04:
Give us an alternative proposal and come back and pass the PATE.

[00:18:43] Speaker 04:
He chose not to do that.

[00:18:44] Speaker 04:
He could have applied for a waiver of the PAT.

[00:18:47] Speaker 04:
He also chose not to do that.

[00:18:49] Speaker 04:
He could have tried to take the alternative events to the PAT, which he actually had passed a portion of the alternative events before, but he didn't even attempt to take those alternative events.

[00:18:58] Speaker 04:
Or he could have come back and attempted to challenge the PAT, either by filing a grievance under his union contract,

[00:19:04] Speaker 04:
or being removed again and coming back to the MSPB, or if he thought it was a discrimination case, going to the EEOC.

[00:19:10] Speaker 04:
He chose none of those alternatives.

[00:19:12] Speaker 04:
He actually chose not to return to work, and that's why he really cannot prove under the objective standard that he lacked a meaningful choice here, and that's why he cannot prove that his retirement was involuntary.

[00:19:23] Speaker 04:
Likewise, there was no wrongful act on the part of the agency here.

[00:19:27] Speaker 04:
There's no

[00:19:28] Speaker 04:
violation of 5 CFR 339204, as Mr. Howard suggests, that regulation does require agencies to waive a physical standard if there is substantial evidence that the employee can perform the essential functions of the job without harm to themselves or anybody else.

[00:19:45] Speaker 04:
But it's logical.

[00:19:47] Speaker 04:
First off, that's a question of fact.

[00:19:48] Speaker 04:
You must look specifically to the job requirements, compare the job requirements to the employee's abilities there.

[00:19:54] Speaker 04:
it's logical that the employee has to be the one to request that waiver.

[00:19:58] Speaker 04:
The employee is the only person in possession of the information sufficient to request a waiver.

[00:20:05] Speaker 04:
They know their outside activities, they know what qualifies them physically to perform their essential activities, and management doesn't observe them on a daily basis.

[00:20:17] Speaker 04:
Likewise, management

[00:20:18] Speaker 04:
can't know who wants a waiver.

[00:20:21] Speaker 04:
They can't affirmatively be tasked with identifying all employees who might want a waiver and automatically apply for a waiver for them.

[00:20:29] Speaker 04:
The employee has to come forward and affirmatively seek that.

[00:20:34] Speaker 04:
Likewise, it's also not clear that Mr. Howard could do all the essential functions here.

[00:20:39] Speaker 04:
There is no evidence in the record, just his own conclusory arguments at this point.

[00:20:44] Speaker 04:
Mr. Howard's past performance doesn't

[00:20:46] Speaker 04:
reflect on his present fitness to perform, and that's the real issue here is the physical ability test is designed to ensure these police officers present... The real issue here is whether the case is moot.

[00:20:57] Speaker 04:
Correct, Your Honor.

[00:20:58] Speaker 01:
And... Not the underlying merits of his claim.

[00:21:02] Speaker 04:
Correct, Your Honor.

[00:21:03] Speaker 04:
What we'd say is that the point is Mr. Howard's claim is that the agency committed a wrongful act and his retirement should have been involuntary because the agency violated 5 CFR 339204 and our position

[00:21:17] Speaker 04:
is the same as the MSB properly found that there was no violation.

[00:21:20] Speaker 04:
So he could not prove his retirement was involuntary because he failed to prove he lacked a meaningful choice and he failed to prove wrongful action on the part of the agency here.

[00:21:29] Speaker 04:
So that is our position here is that he failed to prove that his retirement was involuntary.

[00:21:34] Speaker 04:
So as we say,

[00:21:40] Speaker 04:
We respectfully request that you affirm the MSUB decision because they properly dismiss his claim as moot and they properly dismiss his entire voluntary retirement claim because he failed to prove his retirement was involuntary and this conclusion is supported by substantial evidence.

[00:21:54] Speaker 04:
Unless the court has any further questions.

[00:21:58] Speaker 04:
Thank you.

[00:21:58] Speaker 04:
Thank you, Your Honor.

[00:22:03] Speaker 03:
My final statement is that this is about mootness.

[00:22:07] Speaker 03:
And there's an involuntary retirement issue.

[00:22:10] Speaker 03:
An appeal is not moot unless it can be said with assurance that there is no reasonable expectation that the alleged violation, now he's alleging this 5 CFR 339.204 and a host of other statutes and regulations in regard to this physical test, that as to him, it's an alleged violation of the merit system standards.

[00:22:37] Speaker 03:
that the alleged violation will recur and that the interim belief has completely and irrevocably eradicated the effects of the alleged violation.

[00:22:46] Speaker 03:
Now the alleged violation appears on the face of the rescission letter and it adds the fact that he has to go to this academy that he had already been accepted from.

[00:22:56] Speaker 03:
So both of those are alleged violations of merit system standards.

[00:23:01] Speaker 03:
Otherwise, the defendant is free to return to his old ways and the public interest in having the legality of the practices settle militates against a mootness conclusion.

[00:23:11] Speaker 03:
And I just read that from our brief, which cites two Supreme Court cases and a 2014 case from this court.

[00:23:22] Speaker 00:
Thank you.

[00:23:22] Speaker 00:
Thank you very much.

[00:23:23] Speaker 00:
Are these cases submitted?

[00:23:24] Speaker 00:
Thank you.