[00:00:21] Speaker ?:
Oh shit!

[00:01:29] Speaker 04:
Okay.

[00:01:30] Speaker 04:
The next argued case is number 16-17-11, Mr. Darren A. Jones against the Merit Systems Protection Board.

[00:01:38] Speaker 04:
Mr. Jones.

[00:01:44] Speaker 01:
Thank you, Your Honor.

[00:01:45] Speaker 01:
May I please the court?

[00:01:47] Speaker 01:
Darren A. Jones, Esquire, for Petitioner Darren A. Jones.

[00:01:51] Speaker 01:
Before I begin, I would like to start by thanking this court for the tremendous opportunity to present oral argument in my case.

[00:01:57] Speaker 01:
I'm certainly aware that it is rare for post-appellants to be granted this opportunity.

[00:02:03] Speaker 01:
It is not one that I take lightly, and I'm very grateful for it.

[00:02:07] Speaker 04:
Thank you.

[00:02:07] Speaker 04:
We appreciate your coming to help us reach the right result.

[00:02:11] Speaker 01:
My presence here today is as attorney for petitioner, not as petitioner.

[00:02:16] Speaker 01:
I will be making arguments based on law, facts, and the record, and I do not anticipate, unless specifically requested by the panel,

[00:02:24] Speaker 01:
that I will be put in a position where I would be testifying as petitioner.

[00:02:29] Speaker 01:
There are three issues before the court, and all three should be found in favor of petitioner.

[00:02:34] Speaker 01:
First, this court should find that the clerk's February 23, 2016 letter is a final decision or final order of the board under 28 USC 1295A9.

[00:02:47] Speaker 01:
Second, this court should find that the board abused its discretion under 5 USC 7062A,

[00:02:54] Speaker 01:
when it denied petitioners' motion to reopen based on oversight.

[00:02:58] Speaker 01:
And third, this court should find that the board committed clear and material legal error when it failed to consider this court's controlling Grigsby detrimental reliance and estoppel standard in its final decision.

[00:03:15] Speaker 01:
With respect to the first issue, this court in McCarthy held it is not deprived of review

[00:03:21] Speaker 01:
of a board decision if it's in the form of a clerk letter.

[00:03:27] Speaker 01:
The court in McCarthy held that the letter at issue McCarthy was a substantive decision and that it had a real impact on Mr. McCarthy's right.

[00:03:39] Speaker 01:
In the exact same manner, the February 23, 2016 clerk letter at issue here was a substantive decision that had a real impact on petition of rights

[00:03:52] Speaker 01:
And it is certainly akin to a final order or final decision of the board.

[00:03:56] Speaker 01:
If you were to look at the letter in question under McCarthy, where this court granted, where it was decided that it was a final order or final decision of the board, the letter in McCarthy stated simply cited the board's own precedent in day.

[00:04:12] Speaker 01:
And the court found that to be akin to a final order or final decision of the board.

[00:04:18] Speaker 01:
And if you look at the letter and issue in Petitioner's case,

[00:04:22] Speaker 01:
the clerk actually conducted a legal analysis of McCarthy, so this court's controlling precedent, and issued a legal holding.

[00:04:32] Speaker 01:
So it would defy logic if this court were to find that a simple reference to a citation in the McCarthy case did not equate to finding that the letter in position's case is a final decision in order of the board.

[00:04:49] Speaker 02:
What is it, in your view, that distinguishes

[00:04:52] Speaker 02:
this case, let's say from a case in which someone has filed, let's say, five successive requests for reopening, each of which is denied by a letter saying the case has been closed, it is closed, and it remains closed, and then wants to take that letter on appeal to the Court of Appeals, would you argue that even that fifth

[00:05:17] Speaker 02:
denial by letter would be a final order that's reviewable, or is there something different from that case in this case?

[00:05:24] Speaker 01:
I believe, Your Honor, you're getting to this court's analysis, McCarthy Court's analysis in Haynes, which there were three clerk letters, or motions to reopen in Haynes, and there are also three petitions to reopen or motions to reopen in Petitioner's case.

[00:05:39] Speaker 01:
The clearly factual and distinguishable elements of the motions to reopen in Haynes and the motions to reopen

[00:05:47] Speaker 01:
and petitioner are in substance and time.

[00:05:49] Speaker 01:
The McCarthy court, in its opinion, labeled the motions to reopen in Haynes as, quote, informal, and during oral arguments in McCarthy, classified the motions to reopen as, quote, non-substantive and, end quote, and, quote, baseless charges, end quote.

[00:06:12] Speaker 01:
An analysis, an easy analysis of petitioner's motion to reopen

[00:06:16] Speaker 01:
There is no way, it's undeniable, that they could be determined to be non-substantive and or baseless.

[00:06:25] Speaker 01:
They provide a legal analysis with this court's precedent and also the board's own precedent, showing how the application of those precedents would result in a different outcome.

[00:06:38] Speaker 01:
And the timing is also critical, Your Honor, because petitioners' motions to reopen span a year of almost two years.

[00:06:46] Speaker 01:
And there was one motion to reopen right after the final decision was issued.

[00:06:53] Speaker 01:
And it provided much the same arguments as in the second and third motion to reopen that petitioner submitted.

[00:07:01] Speaker 01:
So to answer your question, Your Honor, it would be an analysis based on the timing and the substance of the motions to reopen of the appellant.

[00:07:10] Speaker 02:
So in my hypothetical case, if the

[00:07:16] Speaker 02:
Uh, fifth motion that was filed was done in formal form, uh, with, you know, a motion to reopen and cited even if it was the same authority that had been previously cited in the second through fourth requests to reopen, it would still be by virtue of its formality and its citation of authority, uh, a final order when the clerk denied it by letter.

[00:07:40] Speaker 01:
Well, I think what's critical in your hypothetical, your honor, is that McCarthy was just decided.

[00:07:45] Speaker 01:
So I think the critical question to your question is, was McCarthy in effect at that time frame, or was McCarthy not in effect at that time frame?

[00:07:54] Speaker 02:
Well, let's assume McCarthy is in effect.

[00:07:56] Speaker 01:
OK, well then, to me, the petitioner would argue that there would be no need for the five consecutive letters, either formal or informal, because that petitioner could use the first letter under McCarthy analysis

[00:08:11] Speaker 01:
and come to this court for... But assume that he didn't.

[00:08:14] Speaker 02:
Assume that the petitioner didn't appeal the first four, but then sought to appeal the fifth.

[00:08:22] Speaker 01:
Those facts are distinguishable from the facts that issue in Haynes and petitioner's case and in McCarthy.

[00:08:30] Speaker 01:
And I think what's critical to understanding is that McCarthy showed that the substance of the letters and the timing of the letters is critical.

[00:08:40] Speaker 01:
And Petitioner's case clearly is factually distinguishable in substance and timing.

[00:08:46] Speaker 01:
And there is nothing in McCarthy or in Haynes that would predispose this court's review based on that analysis.

[00:09:05] Speaker 01:
With respect to the second issue, this court in McCarthy held that

[00:09:07] Speaker 01:
It has jurisdiction to review a board's denial of a motion to reopen premised on a change in law under 5 USC 7062A.

[00:09:16] Speaker 01:
And Petitioner argues that that same analysis that the court followed in McCarthy under the Supreme Court's INS decision and the board's own president of Olson should be followed in Petitioner's case for a motion to reopen that was denied based on oversight.

[00:09:34] Speaker 03:
But how is that a change in the law?

[00:09:36] Speaker 01:
Excuse me, Your Honor?

[00:09:37] Speaker 03:
How is that a change in the law?

[00:09:40] Speaker 03:
You're not making an argument as far as I can tell that the law has changed and that that would have necessitated reopening.

[00:09:51] Speaker 01:
As petition argument is brief in his reply, it was this court's precedent in McCarthy and his issue that precipitated the third motion to reopen without the

[00:10:04] Speaker 01:
Court of Appeals establishing that it has jurisdiction to review the clerk's denial of a motion to reopen.

[00:10:10] Speaker 01:
As petitioner noted in his case, there would have been no motion to reopen, no third motion to reopen.

[00:10:18] Speaker 01:
And hence, the petition would not be here today.

[00:10:21] Speaker 01:
So if the court were to use a separate analysis to find under 7062A that it somehow doesn't have authority to review

[00:10:31] Speaker 01:
jurisdiction to review, a clerk later denying a motion to reopen.

[00:10:35] Speaker 01:
That would be contrary to this court's McCarthy holding.

[00:10:39] Speaker 01:
It would be contrary to the Supreme Court in INS.

[00:10:42] Speaker 01:
And it would be contrary to the board's own precedent in Olson.

[00:10:47] Speaker 01:
And in addition, it would establish some false hierarchy between, in Olson, between a motion to reopen premise on oversight and a motion to reopen

[00:10:57] Speaker 01:
premised on a change in law.

[00:10:59] Speaker 02:
Your principle point here is oversight, right?

[00:11:03] Speaker 02:
That's what you're really relying on, not so much change in law as I understand your brief.

[00:11:07] Speaker 01:
Yes, Your Honor, oversight.

[00:11:08] Speaker 01:
All three of Petitions Most and Should We Open were based on oversight.

[00:11:12] Speaker 01:
OK.

[00:11:14] Speaker 01:
So also it's critical to note that the board in its brief did not rebut or present any argument against the court applying 706 to a

[00:11:25] Speaker 01:
are saying it didn't have the authority to apply 7062A for a motion to reopen.

[00:11:31] Speaker 01:
So the board has conceded that point, and the second jurisdictional hurdle has been met.

[00:11:41] Speaker 01:
With respect to the third issue, this court should find that the board committed clear and material error when it failed to consider the court's Grigsby detrimental and reliance precedence.

[00:11:51] Speaker 01:
First, the board's sole reliance on Campion to say that

[00:11:56] Speaker 01:
the petitioner did not establish detrimental alliance is erroneous.

[00:12:02] Speaker 01:
There is nothing in Campion that would establish, excuse me, Campion did not overrule Grigsby in any manner.

[00:12:12] Speaker 01:
There is no mention of Grigsby whatsoever in Campion, and the facts of Campion are plainly distinguishable to the facts in the petitioner's case.

[00:12:20] Speaker 01:
Mr. Campion did not at any time argue

[00:12:23] Speaker 01:
detrimental alliance or estoppel or even Grigsby.

[00:12:26] Speaker 01:
Yet the board uses Campion to dismiss Petitioner's detrimental alliance and estoppel claims under Grigsby.

[00:12:39] Speaker 01:
Further, this court in Campion plainly held that Campion was a case of statutory interpretation.

[00:12:46] Speaker 01:
There is no issue of statutory interpretation in Petitioner's case, and Campion plainly does not apply.

[00:12:52] Speaker 01:
What does apply is this court's Grigsby, Detrimental Alliance, and Estoppel precedent that neither the board nor this court apply to specific facts and circumstances of a petitioner's case.

[00:13:06] Speaker 01:
Petitioner is arguing that there is a conflict of laws between this court's precedent in Campion and this court's Grigsby precedent.

[00:13:16] Speaker 01:
There should be no vital mechanism for petitioner to use the

[00:13:22] Speaker 01:
That same specific facts and circumstances of this case under Grigsby that would warrant a different result than is shown under Campion.

[00:13:31] Speaker 01:
There is a conflict of laws between Campion and Grigsby that must be resolved by this court.

[00:13:37] Speaker 01:
Petitioner further argues that if somehow the court decides that petitioner's arguments regarding Grigsby are wrong or erroneous, then under Federal Circuit Rule 35A1,

[00:13:50] Speaker 01:
petition respectfully requests an en banc review of Grigsby to specifically overrule Grigsby so that no other appellant or petitioner will have to endure over four years of manifest injustice that Grigsby was specifically issued for the harm that Grigsby was specifically issued to prevent.

[00:14:15] Speaker 01:
A critical distinction as well, Your Honor, is that there is

[00:14:19] Speaker 01:
In the board's brief, there is, and also in the final decision below before the board, there is the statement that the board's jurisdiction cannot be expanded.

[00:14:30] Speaker 01:
And they're under campion.

[00:14:33] Speaker 01:
And as petitioner has repeatedly argued, that there is no unlawful expansion of the board's jurisdiction in his case.

[00:14:41] Speaker 01:
The proper application of this court's Grigsby Detrimental Alliance and Estoppel standard

[00:14:48] Speaker 01:
would properly fine jurisdiction under Chapter 7511B8.

[00:14:55] Speaker 01:
So any argument saying that there is an unlawful expansion of jurisdiction is false.

[00:15:04] Speaker 01:
Also, Your Honor, this is not the first time that this court has evaluated the detrimental reliance and estoppel standard in Grigsby.

[00:15:12] Speaker 01:
This court in Anderson reviewed the detrimental reliance and estoppel standard

[00:15:17] Speaker 01:
in Anderson and found that those petitioners could not prevail with their estoppel argument.

[00:15:24] Speaker 01:
Those petitioners were basing a subjective thought that they only thought that they were appointed under a separate, a different hiring authority than they actually were.

[00:15:36] Speaker 01:
They had no evidence, no basis whatsoever to support their purely subjective thoughts.

[00:15:42] Speaker 01:
And certainly Anderson would appear to be frivolous claims.

[00:15:46] Speaker 01:
And yet this court established a precedent under Anderson saying that using the detrimental lines and estoppel standard to say that you can't create a form.

[00:16:00] Speaker 01:
And there's no such creation of form in Petitioner's case.

[00:16:03] Speaker 01:
Again, there's no unlawful expansion of jurisdiction in Petitioner's case.

[00:16:08] Speaker 01:
Under this court's analysis, which it is required to follow,

[00:16:13] Speaker 01:
the proper application of Grigsby would follow the proper lawful jurisdiction under 7511B8.

[00:16:21] Speaker 01:
And that has not been done.

[00:16:23] Speaker 01:
It has not been done by the board and, respectfully, has not been done by this court.

[00:16:28] Speaker 01:
And that is what Petitioner is respectfully requesting is an analysis to distinguish Grigsby to his case.

[00:16:36] Speaker 01:
The facts of Petitioner's case

[00:16:38] Speaker 01:
are almost exactly like the facts in Grigsby.

[00:16:42] Speaker 01:
However, neither the board nor this court will evaluate that controlling precedent.

[00:16:48] Speaker 01:
And that is in error.

[00:16:51] Speaker 01:
And that is why Petitioner is back here today.

[00:16:55] Speaker 04:
Let's hear from the board, and we'll save you rebuttal time.

[00:17:03] Speaker 04:
Mr. Gove.

[00:17:04] Speaker 00:
Yes, may it please the court.

[00:17:06] Speaker 00:
This court should dismiss Mr. Jones' appeal because the correspondence that he received from the MSPB's clerk was not a final decision.

[00:17:15] Speaker 00:
It was not a final order.

[00:17:17] Speaker 00:
And therefore, this court does not have jurisdiction.

[00:17:20] Speaker 04:
If it's not final, then all we need is a final order?

[00:17:23] Speaker 04:
And you're saying then we would have jurisdiction?

[00:17:26] Speaker 00:
Yes.

[00:17:26] Speaker 00:
In fact, MSPB issued a final decision in Mr. Jones' case back in 2013.

[00:17:34] Speaker 00:
And Mr. Jones appealed.

[00:17:35] Speaker 00:
This court had jurisdiction.

[00:17:37] Speaker 00:
Mr. Jones appealed.

[00:17:38] Speaker 00:
The court heard the same arguments he made today about estoppel and the court affirmed the final decision of the MSPB.

[00:17:46] Speaker 04:
So let's say that after these successive appeals, which have been dismissed just by a letter from the clerk, let's say that a successor board in reviewing the record sufficiently

[00:18:02] Speaker 04:
Because it's a clear government mistake.

[00:18:04] Speaker 04:
Nobody disputes that there had been 10 years of governmental error on which one there's no argument, but that it was reasonably relied on by everyone, by the government and by Mr. Jones.

[00:18:18] Speaker 04:
So let's say that by the third or so requests to review, the board thought that maybe in fact the government did have some responsibility

[00:18:30] Speaker 04:
for its own mistake of some sort.

[00:18:33] Speaker 04:
Is your position that it's too late for the board to second-guess itself?

[00:18:39] Speaker 00:
The board could reopen, and if it did so, it would create a new decision which would become final and reviewable by this court.

[00:18:48] Speaker 04:
If the board could reopen, why can't the refusal to reopen be appealed?

[00:18:53] Speaker 00:
Well, first let me point out that this letter from the clerk

[00:18:57] Speaker 00:
does not state that it's denying the request to reopen.

[00:19:01] Speaker 04:
What the letter says is there is... You're saying that there would be a successive final decision following that letter of the clerk?

[00:19:08] Speaker 04:
The clerk said go away?

[00:19:09] Speaker 04:
You're saying there's something still going on in the board after that letter from the clerk?

[00:19:15] Speaker 04:
No.

[00:19:15] Speaker 00:
No, what the clerk said was there is no right... So you already decided.

[00:19:21] Speaker 00:
The board made its decision back in 2013

[00:19:25] Speaker 00:
and issued a final decision, which was appealed to this court, which affirmed.

[00:19:29] Speaker 00:
Mr. Jones even asked for a rehearing, and that was denied by this court.

[00:19:33] Speaker 00:
Then he went to the Supreme Court, which denied his petition for certiorari.

[00:19:38] Speaker 00:
So this case has been litigated to the Supreme Court, and yet we're back here.

[00:19:42] Speaker 00:
And the same arguments are being made today that were made back in 2015 of this court.

[00:19:48] Speaker 04:
That was my question.

[00:19:49] Speaker 04:
At this stage, did the board have authority to reopen and review

[00:19:54] Speaker 00:
You mean today?

[00:19:55] Speaker 00:
Today's decision.

[00:19:57] Speaker 00:
Could the board reopen today?

[00:20:00] Speaker 04:
Well, when the last letter to the clerk, where the clerk said, we decided this years ago.

[00:20:07] Speaker 00:
In theory, the board could reopen at any time on its own motion.

[00:20:11] Speaker 00:
But as the MSPB clerk told... But not on Mr. Jones' motion?

[00:20:16] Speaker 04:
Has to be its own motion?

[00:20:18] Speaker 00:
Doesn't have to.

[00:20:18] Speaker 00:
It could be on its own motion.

[00:20:20] Speaker 00:
Often the most common circumstance is

[00:20:25] Speaker 00:
A party will file an administrative petition for review with the board.

[00:20:30] Speaker 00:
And in going through that petition for review, they find that the litigant, who's often pro se, has not identified any legal error.

[00:20:38] Speaker 00:
But then the board will do its own review, a complete review.

[00:20:41] Speaker 00:
And if it finds error in the initial decision from the administrative judge, then the board may, and this is the most common scenario, reopen on its own motion.

[00:20:52] Speaker 00:
So it's often prompted by a filing, whether it's normally the petition for review filed to the board that would prompt the reopen.

[00:20:59] Speaker 04:
They're saying they could reopen on their own motion, but not at Mr. Jones' request.

[00:21:05] Speaker 00:
Mr. Jones' request may prompt it, but it would ultimately be on the board's own motion.

[00:21:10] Speaker 00:
In fact, there's nothing by law or regulation that provides for a request for reconsideration to the board.

[00:21:18] Speaker 00:
In fact, there's only one individual who has that right by law and regulation, and that is the director of the Office of Personnel Management, who by law can request that the board reconsider its decision and reopen its decision.

[00:21:30] Speaker 00:
But no other party, not Mr. Jones, not even agencies, have the right to ask for a case to be reopened.

[00:21:39] Speaker 00:
And in Haynes, this court started with the language of its jurisdictional statute,

[00:21:45] Speaker 00:
and found that it must be a final decision or final order from the MSPB for this court to have jurisdiction.

[00:21:52] Speaker 00:
And then the court went on in addressing, well, what is the final decision?

[00:21:56] Speaker 00:
The court deferred to MSPB regulations.

[00:21:59] Speaker 00:
And MSPB regulations do not provide for a petition for reconsideration by any party.

[00:22:06] Speaker 00:
A final decision is defined as one that's either an initial decision that 35 days have passed and it becomes final.

[00:22:13] Speaker 00:
or a petition for review has been filed with the board, and the board has issued a decision.

[00:22:19] Speaker 00:
But there's no petition for reconsideration.

[00:22:22] Speaker 00:
And so the court in McCarthy said, I mean in Haynes said, that it would fly in the face of those regulations, that's the language this court used, to treat correspondence from the MSPB clerk as a final decision.

[00:22:38] Speaker 00:
And so in Haynes,

[00:22:40] Speaker 00:
the court dismissed for lack of jurisdiction, which is what we're asking the court to do in this case.

[00:22:47] Speaker 02:
What do you see as the scope of the McCarthy exception, if you want to call it that, to the Haynes rule?

[00:22:54] Speaker 00:
It seems to be an extremely narrow exception.

[00:22:57] Speaker 00:
And several times in the decision, the court says under these specific circumstances.

[00:23:01] Speaker 00:
And the specific circumstances are extraordinary because not only is there an intervening change in the law,

[00:23:08] Speaker 00:
But there's also a decision that finds that intervening change, these whistleblower amendments passed by Congress, that finds this change in the law to be retroactive to all pending cases.

[00:23:19] Speaker 00:
And Mr. McCarthy's case was one of those pending cases.

[00:23:23] Speaker 02:
Well, but suppose that someone comes in and says, there hasn't been a change in the law.

[00:23:30] Speaker 02:
The board looks at it and says, we don't think so.

[00:23:33] Speaker 02:
The question for us, first question for us is, do we have jurisdiction

[00:23:38] Speaker 02:
when an appeal is taken to us from that decision by the board.

[00:23:42] Speaker 02:
And under McCarthy, since McCarthy refers to a case in which there's an allegation of a change in the law, that would seem to me, under McCarthy, to give us jurisdiction, would it not?

[00:23:53] Speaker 00:
So that's certainly one of the elements in McCarthy.

[00:23:55] Speaker 00:
There would need to be an intervening change in the law.

[00:23:58] Speaker 02:
Well, the question is, does it actually need to be an intervening change?

[00:24:04] Speaker 02:
For sure, or is it enough for the petitioner to say there's been an intervening change?

[00:24:08] Speaker 02:
In other words, put it this way, from our perspective, do we need to decide the question of whether there actually has been an intervening change in the law in order to decide the preliminary question of whether we have jurisdiction over the appeal?

[00:24:24] Speaker 00:
In McCarthy, the court seemed to do that, seemed to decide that this was an intervening change in the law.

[00:24:30] Speaker 00:
I don't think there was any dispute because Congress had passed these whistleblower protection enhancement, whistleblower protection enhancement act amending the law.

[00:24:42] Speaker 00:
And there was also no dispute that this was retroactive.

[00:24:46] Speaker 00:
So I think the two, at least two of the elements, there's really three, at least three elements here.

[00:24:50] Speaker 00:
There's intervening change in the law.

[00:24:52] Speaker 00:
That intervening change in the law would have to apply to the person asking for the case to be reopened.

[00:24:58] Speaker 00:
And in McCarthy, there was retroactive effect, which is not always the case.

[00:25:04] Speaker 00:
And the third thing the McCarthy court pointed out was that this was the first motion or request to reopen the case.

[00:25:12] Speaker 00:
Here with Mr. Jones, this is his third request to reopen.

[00:25:16] Speaker 03:
What about Mr. Jones puts a lot of weight on Olson's statement about oversight?

[00:25:25] Speaker 03:
In Olson, which is not one of our cases, one of the MSPB cases, talks about oversight or a change in the controlling law, seeming to allow for two McCarthy-type exceptions, one for change in the controlling law and one for oversight.

[00:25:40] Speaker 03:
In McCarthy, it seems we went to great pains to say, this is only about a change in the law, and whether we have jurisdictions to review motions to reopen premised on other grounds will not be decided today.

[00:25:51] Speaker 03:
And that came sort of right after a site to Olson.

[00:25:54] Speaker 03:
The court was well aware of Olson's statement about two possible exceptions to Haynes, namely oversight and a change in the law, as articulated by the board in Olson.

[00:26:07] Speaker 03:
And in McCarthy, we validated the change in the law exception.

[00:26:11] Speaker 03:
And we did not address, expressly didn't address the oversight exception.

[00:26:16] Speaker 03:
Do you think that we need to do that in this case?

[00:26:19] Speaker 03:
And if so, how would we do it?

[00:26:22] Speaker 00:
I don't think the court needs to reach the issue of oversight in this case.

[00:26:27] Speaker 00:
Typical oversight, that's the whole purpose of judicial review.

[00:26:32] Speaker 00:
That's why Congress believes that there needed to be judicial review over MSPB decisions, because every so often there would be an oversight.

[00:26:41] Speaker 00:
And the board itself, if it's considering whether it missed something, might reopen.

[00:26:47] Speaker 00:
But that's different from what this court would use as a jurisdictional standard.

[00:26:53] Speaker 00:
The board has discretion to reopen on its own motion at any time.

[00:26:58] Speaker 00:
And so a mere oversight.

[00:27:00] Speaker 00:
And in looking at those decisions, the oversight is almost always because there was some change in the law, either a decision that came out that maybe the board missed or a statutory change.

[00:27:14] Speaker 00:
So in reality, it's normally that there's some change in the controlling law that was not

[00:27:21] Speaker 00:
reflected in the board's final decision.

[00:27:23] Speaker 00:
And that's why the board reopens on its own motion.

[00:27:25] Speaker 00:
But looking at it from the perspective of this court's jurisdiction, it makes sense that this court would take a very narrow view of when it has jurisdiction over a letter from an MSPB clerk, because public policy does not favor endless litigation.

[00:27:44] Speaker 00:
And this case is an example of that.

[00:27:46] Speaker 00:
We have a litigant who has litigated his case all the way to the Supreme Court.

[00:27:51] Speaker 00:
and yet we're back here.

[00:27:53] Speaker 00:
And that goes against the importance of finality and judicial economy and all these principles that are discussed when courts discuss res judicata, the problem with re-litigation.

[00:28:05] Speaker 02:
The fact that it was a letter doesn't really matter, does it?

[00:28:09] Speaker 02:
I mean, suppose that every one of these decisions by the board saying this case is over had been in the form of a brief order

[00:28:18] Speaker 02:
from the board itself.

[00:28:20] Speaker 02:
Wouldn't have made any difference, would it, in terms of our jurisdiction?

[00:28:23] Speaker 00:
I think that's correct.

[00:28:24] Speaker 00:
Because even if it was, well, if it was from the board itself, it would be arguably a decision.

[00:28:30] Speaker 00:
So I think that's why the clerk's letter is an informational letter, a response to an inquiry about a case.

[00:28:38] Speaker 02:
But suppose it was, I mean, I'm troubled by the notion that there can be a jurisdictional difference depending on

[00:28:49] Speaker 02:
Which officer of the agency signs the piece of paper that disposes of the claim?

[00:28:55] Speaker 02:
I mean, if you're right that this third request for effectively the same relief is duplicative and therefore as such falls under Hanes, I can't see why it would matter if that's signed by the chairman of the board, the clerk, or by some other officer within the agency that

[00:29:18] Speaker 02:
is assigned the task of disposing of repetitive requests for relief.

[00:29:24] Speaker 00:
You know, it's generally seen as a ministerial role and that's why the clerk would do it.

[00:29:29] Speaker 02:
Well, I understand that's the practice, but I'm trying to see whether there's any legal significance to the fact that it's the clerk as opposed to the board.

[00:29:37] Speaker 02:
And your last answer gave me some pause because it suggested there was, or might be.

[00:29:44] Speaker 00:
Well, I suppose it depends on the language too.

[00:29:47] Speaker 00:
If the language is your case is closed, we issued a final decision on this date.

[00:29:52] Speaker 00:
This was reviewable by the United States court of appeals for the federal circuit.

[00:29:57] Speaker 00:
That would be very similar to what the clerk does.

[00:29:59] Speaker 02:
I suppose what they said instead was, we have the authority to reopen cases on our own motion.

[00:30:07] Speaker 02:
We've looked at this case very closely and we've read all your authorities in your brief with care.

[00:30:13] Speaker 02:
And we've decided that this is not a case in which we feel it's necessary or appropriate for us to exercise our discretion to reopen the case, period.

[00:30:23] Speaker 02:
Is that somehow converted into a final order for purposes of our jurisdiction, or does it remain a ministerial dismissal?

[00:30:33] Speaker 00:
Well, under Haynes, the court looked to MSP regulations to find the definition of a final decision.

[00:30:40] Speaker 00:
And since there's nothing like what you're describing in the regulation, it would not qualify.

[00:30:46] Speaker 00:
Accepting petitioners' argument would deprive the administrative process and this Court's review of finality.

[00:30:59] Speaker 00:
It would be possible to reopen the process even after someone has litigated their case all the way to the Supreme Court to start the ball rolling all over again.

[00:31:08] Speaker 00:
And it's also contrary to the language of

[00:31:10] Speaker 00:
the jurisdictional statutes that give this court jurisdiction to review MSPB decisions, 28 U.S.C.

[00:31:15] Speaker 00:
1295-89 and 5 U.S.C.

[00:31:19] Speaker 00:
7703-B1.

[00:31:21] Speaker 00:
Because this clerk's correspondence does not constitute a final decision under the regulations of the board, we ask this court to dismiss.

[00:31:30] Speaker 04:
Mr. Jones says that's legal error.

[00:31:33] Speaker 04:
You're saying that an agency is immune from review of legal error?

[00:31:40] Speaker 00:
No, in fact, Congress provided for judicial review and Mr. Jones said this is not reviewable because it was signed by the clerk.

[00:31:50] Speaker 00:
It's not reviewable because under MSPB regulations, it's not a final decision or final order of the MSPB.

[00:31:58] Speaker 04:
And in fact, you're telling us that an administrative agency can avoid judicial review by saying this is not final.

[00:32:07] Speaker 04:
schools out, there's no place for Mr. Jones to go after he gets that letter.

[00:32:11] Speaker 04:
But you're saying we've, we announced this is not a final decision because our clerk signed it and therefore is immune from judicial review.

[00:32:20] Speaker 04:
There is a substantive right at stake here.

[00:32:24] Speaker 04:
You could say it's been previously decided as res judicata.

[00:32:27] Speaker 04:
That's a different point than the point I think you're making.

[00:32:31] Speaker 04:
We're saying it can't be reviewed, not because it's res judicata, but because the clerk signed it.

[00:32:37] Speaker 00:
Actually, that's exactly right.

[00:32:39] Speaker 00:
There's not two decisions here.

[00:32:40] Speaker 00:
In order for there to be ratio de cara, there would need to be two decisions involving the same claims or the same issues.

[00:32:48] Speaker 00:
There's not two decisions here.

[00:32:49] Speaker 00:
There's one final decision that was issued in 2013.

[00:32:51] Speaker 00:
Then there's a letter from the clerk responding to Mr. Jones' correspondence and informing him there is no right to reopen at the board.

[00:33:01] Speaker 00:
There's no petition for reconsideration in the MSPB regulations for any party other than the director of OPM.

[00:33:09] Speaker 00:
And so that's why this case should be dismissed for lack of jurisdiction.

[00:33:13] Speaker 00:
It's simply not a final order or decision.

[00:33:16] Speaker 00:
There already has been a final order and decision in his case, which he has appealed to this court.

[00:33:22] Speaker 00:
There has been judicial review.

[00:33:24] Speaker 00:
So the MSPB is not claiming

[00:33:26] Speaker 00:
that Mr. Jones is not entitled to review.

[00:33:30] Speaker 04:
But what I hear you're saying is that this court has no authority to agree with you.

[00:33:38] Speaker 04:
That it just ended with that letter from the clerk.

[00:33:44] Speaker 00:
The court can certainly issue a decision addressing its own jurisdiction.

[00:33:48] Speaker 00:
The court has jurisdiction to address its jurisdiction and can address Mr. Jones's arguments that

[00:33:54] Speaker 00:
this letter gives the court jurisdiction.

[00:33:58] Speaker 00:
I'm not sure if I'm completely understanding the question.

[00:34:05] Speaker 02:
I think your answer to Judge Newman's question is, yes, the court doesn't have jurisdiction to address the merits of Mr. Jones' case.

[00:34:14] Speaker 04:
Not to address the merits, but to determine whether he has the right to request review

[00:34:22] Speaker 04:
from the board, which is the question before us.

[00:34:25] Speaker 04:
We're saying you can't even request review either from the board or from us.

[00:34:30] Speaker 00:
Well, I think that, I mean, the court can certainly look at the board's regulations and see whether there is a right to request reconsideration.

[00:34:38] Speaker 00:
And in fact, there is no right.

[00:34:39] Speaker 00:
There is one individual who has that right.

[00:34:42] Speaker 00:
And it's not Mr. Jones, it's the director of the Office of Personnel Management.

[00:34:47] Speaker 00:
The court certainly has jurisdiction to address its own jurisdiction, but to get into the merits, which this court has already reviewed, that would be beyond the court's jurisdiction because this letter is not a final decision.

[00:35:01] Speaker 04:
Okay.

[00:35:01] Speaker 04:
Let's give Mr. Jones the last word.

[00:35:10] Speaker 01:
Thank you, Your Honor.

[00:35:11] Speaker 01:
This court's precedent is controlling on the board.

[00:35:14] Speaker 01:
The board has no discretion whether they follow it or not.

[00:35:17] Speaker 01:
Petitioner humbly argues that there will never be, never, a more persuasive oversight case than petitioners.

[00:35:25] Speaker 01:
The board expressly and unequivocally admits that it failed to cite or distinguish Grigsby in its final decision, even though it is undisputed that petitioner argued Grigsby before the board.

[00:35:37] Speaker 01:
Further, nowhere in the board's brief or on the board's brief in the underlying appeal did the board argue that it would have come to the same result if it did apply Grigsby.

[00:35:47] Speaker 01:
nowhere.

[00:35:49] Speaker 01:
Petitioner is humbly asking for the board to apply this court's controlling precedent.

[00:35:54] Speaker 01:
There is a conflict of laws between this court's decision in Campion and this court's Grigsby decision that must be corrected.

[00:36:03] Speaker 01:
It must be.

[00:36:04] Speaker 01:
Or there are going to be other petitioners, other appellants, who are going to suffer the same manifest injustice that petitioners suffered for more than four years that Grigsby specifically sought to prevent.

[00:36:16] Speaker 01:
Unfortunately,

[00:36:17] Speaker 01:
This court, it's not uncommon that either this court or the board would conduct oversight that resulted in clear material legal error.

[00:36:27] Speaker 01:
Just two months ago, Judge Dyke and his dissent in Rosario Fabregas v. MSPB stated that this court and the board failed to follow this court's controlling precedent.

[00:36:38] Speaker 01:
And it's very likely, certainly possible, that since the panel for a hearing on branque for

[00:36:43] Speaker 01:
Vizorio Fabricus was just denied on Friday, November 4th.

[00:36:46] Speaker 01:
It's certainly possible that the court will be entertaining this exact same discussion eight to 10 months from now.

[00:36:52] Speaker 02:
Do you think... You're familiar with the Supreme Court's decision in Office of Personnel Management against Richmond?

[00:36:59] Speaker 02:
Yes, Your Honor.

[00:37:00] Speaker 02:
That is often cited as bearing heavily on the question of estoppel of the government, particularly in personnel cases, which that case was, of course.

[00:37:12] Speaker 02:
Do you think that that case effectively deprives Grigsby of any continuing, uh, authoritative force to the extent that Grigsby is what said that Grigsby might have a claim except for the facts of this case, it was toppled.

[00:37:28] Speaker 02:
But, um, do you think that Richmond undermines Grigsby in any way or that Grigsby survives that language when Grigsby survives Richmond?

[00:37:39] Speaker 01:
The petition argues that Grigsby absolutely survives.

[00:37:42] Speaker 01:
The facts in Grigsby were such that was Mr. Grigsby a probationary or a non-probationary employee?

[00:37:50] Speaker 01:
The facts in Petitioner's case is whether he was a probationary or a non-probationary employee.

[00:37:56] Speaker 01:
Grigsby governs Petitioner's case.

[00:37:58] Speaker 01:
Campion does not.

[00:37:59] Speaker 01:
There is no issue of statutory interpretation.

[00:38:02] Speaker 02:
The question that I'm looking to you to answer is whether the intervening decision, Grigsby's was a 1984 case, I think, from this court.

[00:38:11] Speaker 02:
In 1990, the Supreme Court in the Richmond case said, in effect, in these employment situations, this is maybe too loose a characterization, but for brevity, there is no estoppel of the government.

[00:38:27] Speaker 01:
Well, that was specifically for under a money mandating clause that money cannot be dispensed from the Department of Treasury unless per statute.

[00:38:37] Speaker 01:
There is no request for money damages here.

[00:38:40] Speaker 01:
The request is for petitioner's right to meet his burden for jurisdiction before the board.

[00:38:46] Speaker 01:
Petitioner is being withheld from even being able to meet his burden to meet for jurisdiction because neither this court nor the board will apply Grigsby.

[00:38:58] Speaker 01:
Grigsby has not been overruled.

[00:39:02] Speaker 01:
Grigsby must be followed.

[00:39:03] Speaker 01:
If the board wants Grigsby to be overruled, the board should submit a petition for on bond.

[00:39:09] Speaker 01:
for this court to overrule Grigsby, just as petitioner has requested under 35A1 if this court rules against petitioner today, so that no other petitioner, whether he or she is an attorney or not, will read Grigsby, use a reasonable interpretation, plain meaning interpretation of what is in Grigsby, to try to establish, meet his or her burden before the board of jurisdiction.

[00:39:37] Speaker 01:
Real quick, Your Honor.

[00:39:38] Speaker 01:
The petitioner argues that remand is not necessary in this case, actually, if the board applied the controlling Grigsby precedent.

[00:39:49] Speaker 01:
And just as it did in Anderson, also during the Judgmental Alliance and Estoppel precedent in Anderson, and also the affirmative misconduct analysis that it did in Richmond that was overruled in OPM v. Richmond.

[00:40:06] Speaker 01:
The court could find the petitioner was not, in fact, a probationary employee.

[00:40:10] Speaker 01:
And at that very moment, petitioner wrongful termination should be reinstated, because it is undisputed that petitioner did not receive the constitutional due process rights of notice and an opportunity to respond.

[00:40:22] Speaker 01:
So remand is not required.

[00:40:25] Speaker 01:
And this court could actually reinstate petitioner with a ruling of following Grigsby in this case.

[00:40:36] Speaker 04:
I think it's time to wrap it up.

[00:40:37] Speaker 04:
Is there anything else you need to tell us?

[00:40:41] Speaker 01:
Certainly that ratios cut and collateral stop will do not apply.

[00:40:44] Speaker 01:
It would be absurd to apply ratio cut and collateral stop, which would be in contrary to Olson, and also petition for panel rehearing functions are the same as a motion to reopen.

[00:40:57] Speaker 01:
and to automatically preclude a petition, a panel for re-hearing, an en banc re-hearing, under raised judicata, or claustrophal flies in the face.

[00:41:04] Speaker 01:
And we've got the purpose of those very mechanisms.

[00:41:07] Speaker 01:
And there is no way that the clerk's letter of February 23, 2016 is administrative or ministerial.

[00:41:17] Speaker 01:
That cannot be held.

[00:41:19] Speaker 01:
The letter here, it would defy logic if the court did not find that this is a final order of final decision of the board when

[00:41:26] Speaker 01:
a one-sentence citation in McCarthy was found to be a final order decision of the board.

[00:41:35] Speaker 04:
Thank you, Your Honor.

[00:41:36] Speaker 04:
Any more questions for Mr. Jones?

[00:41:39] Speaker 04:
Okay.

[00:41:39] Speaker 04:
Thank you.

[00:41:40] Speaker 04:
Thank you both.

[00:41:40] Speaker 04:
The case is taken under submission.

[00:41:42] Speaker 04:
That concludes the arguments this morning.

[00:41:45] Speaker 00:
Thank you.

[00:41:46] Speaker 02:
All rise.

[00:41:50] Speaker 02:
The Honorable Court is adjourned from day to day.