[00:00:04] Speaker 02: Final case for argument this morning is 15-3148, Kermes versus DHS. [00:01:03] Speaker 00: Mr. Kelly? [00:01:05] Speaker 00: Please record. [00:01:08] Speaker 00: In this case, during the arbitration, the deciding official made a vague reference to having heard from NGOs that my client or that there was a loss of trust. [00:01:24] Speaker 00: During cross-examination for the first time, it was teased out that in fact he had ex parte communications with these NGOs. [00:01:33] Speaker 00: During the course of that discussion, the deciding official stated that my client's Facebook posting contributed to a loss of trust between the Border Patrol and the NGOs. [00:01:47] Speaker 00: He also said that the ex parte communications diminished his ability to carry out the mission of the Border Patrol. [00:01:55] Speaker 00: These ex parte communications were the first direct evidence in this case of any actual harm [00:02:03] Speaker 00: to the board withdrawal because of my client's conduct in making his Facebook posts. [00:02:08] Speaker 02: I guess I'm a little unclear on what your argument precisely is because in the proposal letter, I mean, it was clearly stated that the reason the proposal was going forward was because of the effect on the public and that these comments would have a negative attention and embarrassment to the agency, et cetera. [00:02:28] Speaker 02: So why was [00:02:31] Speaker 02: sort of a subcategory of that, a surprise or prejudicial to your client in any way. [00:02:38] Speaker 02: I mean, he never responded to that. [00:02:41] Speaker 02: He didn't contend that there was no impact. [00:02:43] Speaker 02: The agency told him there was an impact, and that was one of the reasons they were taking this. [00:02:48] Speaker 02: At most, it's cumulative, in my view, the particular detail of that. [00:02:53] Speaker 02: Your client didn't seem to dispute that. [00:02:56] Speaker 00: Your Honor, I'm afraid I must disagree. [00:02:58] Speaker 00: During a subsequent information request, we asked the agency to produce any evidence of actual harm to the agency from anything that my client did. [00:03:09] Speaker 00: And the agency produced nothing, nothing. [00:03:11] Speaker 00: So from the onset of this case, in our effort to defend against the proposal against my client, we engaged in a vigorous defense, among which was the claim that the agency cannot establish harm. [00:03:24] Speaker 00: So when the agency in its proposal made a generalized claim that there was harm to the public, we tried to address that through our information requests, in terms of asking them to produce any such evidence. [00:03:39] Speaker 00: And then in the arbitration, for the first time, the arbitrator says, I had specific conversations with NGOs that harmed the trust that the Border Patrol has with these NGOs, a segment of the public. [00:03:52] Speaker 00: That was startling. [00:03:54] Speaker 04: These kinds of cases where an employee is getting sanctioned for some reason and the deciding official concludes that the misconduct hurts public confidence in the agency and hurts the agency's ability to do its mission and hurts the employee's ability to function as a respected employee of the federal government. [00:04:23] Speaker 04: Is it required under the law that the deciding official have hard evidence? [00:04:28] Speaker 04: Does the deciding official have to go out and do a survey of the local public? [00:04:35] Speaker 04: No. [00:04:35] Speaker 04: My understanding was that's not necessarily required. [00:04:38] Speaker 04: It's permissible for deciding officials to make those kinds of findings without supporting evidence per se. [00:04:47] Speaker 00: You're absolutely correct. [00:04:48] Speaker 00: For instance, the PBS broadcast by itself. [00:04:53] Speaker 00: The agency can legitimately say that there was damage to the agency and it's inferred because of the broadcast. [00:05:01] Speaker 00: The problem we have is this. [00:05:03] Speaker 00: Their proposal made mention of this broadcast, but in terms of the specification, it listed things that accounted for 19 seconds of a 25 minute broadcast. [00:05:14] Speaker 00: And to your point, harm is only one issue. [00:05:17] Speaker 00: Harm goes, for instance, to whether or not the misconduct alleged can be proved. [00:05:22] Speaker 00: In this particular case, the ex parte communications not only went to help establish that the case that they made against my client could be proved, more importantly for us, it went to the penalty. [00:05:35] Speaker 00: And what did the deciding official say? [00:05:38] Speaker 00: He said very specifically that he factored these ex parte communications and the loss of trust evidence into my decision on how to correct the behavior. [00:05:52] Speaker 00: This is classic in terms of the ward case, your honor. [00:05:55] Speaker 03: You know, in the ward case... In fact, reduce the proposed penalty. [00:06:00] Speaker 03: Yes, your honor, but... You're saying it would have been reduced to zero or zero daily suspension? [00:06:06] Speaker 00: Your honor, my contention from David... Your honor, I think it's important to understand that in our sector, we have great relations with the board of patrol and we always have our guys accept responsibility. [00:06:16] Speaker 00: In this particular case, from day one, I, as his lawyer and my client, have always felt that there should be no liability. [00:06:23] Speaker 00: Zero. [00:06:24] Speaker 00: No days. [00:06:25] Speaker 00: If they want to give him a letter of caution, which is not disciplinary under our system, I'm not going to object to that. [00:06:30] Speaker 00: But we felt that his conduct was protected by the First Amendment, that his conduct in terms of the statements to, for instance, the PBS producer, Mr. Brian Epstein, were so de minimis [00:06:42] Speaker 00: It was ridiculous that the agency was relying on the statement of go pound sand, or if you don't like it, don't look at it, as evidencing misconduct by a border patrol agent who was called at his home on an unlisted number and being asked about what he believed to be private Facebook postings. [00:07:02] Speaker 00: I can't imagine any other person, including the chief in this case, acting in a manner that was any more civil than my client did. [00:07:11] Speaker 00: And again, this goes to the expert communications. [00:07:15] Speaker 03: Was the statement about pounding sand a really, I mean, I got the sense that the important thing here was the actual Facebook posting. [00:07:27] Speaker 03: I mean, if I think, if there had just been a call from a television station asking about border patrol activities and your client had Mr. Kermes had said, go pound sand, I'm not going to talk to you. [00:07:41] Speaker 03: I'd be surprised if that would have led to discipline. [00:07:44] Speaker 00: Your Honor, you might be correct. [00:07:46] Speaker 00: But the fact of the matter is during the arbitration, the arbitrator said that he considered the go-pound-sand comment. [00:07:53] Speaker 00: And we separately have argued that that was inappropriate and a procedural due process violation, because that was a statement we had noted in a written reply. [00:08:02] Speaker 00: And unlike the case Wilson, which the agency used to defend against it being a procedural due process case, we did not raise it again. [00:08:10] Speaker 00: We had no opportunity, in fact, we had no desire to defend against that in a written reply, in an oral reply, or as in Wilson, in a phone call with a designing official. [00:08:20] Speaker 00: You know, that was a procedural due process violation, which is a separate argument for remanding this case. [00:08:26] Speaker 00: But in this case, in terms of the due process argument in reference to the ex parte communications, if you look at the record, it's crystal clear. [00:08:36] Speaker 00: The chief said he factored those into my decision on how to correct that behavior. [00:08:41] Speaker 00: It's not a matter of whether or not he enhanced the penalty. [00:08:45] Speaker 00: It's a matter of what degree he used those ex parte communications to enhance the penalty. [00:08:52] Speaker 02: I guess I'm still a little unclear. [00:08:54] Speaker 02: He was on notice that they were, I mean, the proposal said because it's damaged the reputation of the agency, et cetera. [00:09:00] Speaker 02: Did he try to refute that in any way? [00:09:03] Speaker 02: Is it his position that there was no evidence of such damage and therefore there's no damage? [00:09:11] Speaker 02: Is that what he was arguing? [00:09:12] Speaker 00: You know, Your Honor, our argument during the course of this case was that the 19 seconds that the specification represented in that broadcast was very demonized. [00:09:23] Speaker 00: We're talking about the U.S. [00:09:24] Speaker 00: Border Patrol. [00:09:25] Speaker 00: I'm currently representing an agent who's in charge with murder for a cross-border shooting. [00:09:30] Speaker 00: you know, in Nogales, Arizona. [00:09:32] Speaker 00: They have numerous other issues before them, you know, that renders what my client did to be almost meaningless. [00:09:40] Speaker 00: You know, even in the broadcast itself, this didn't even appear until the 20th minute, and it only lasted for 19 seconds. [00:09:47] Speaker 00: It was cumulative in terms of, oh, look, this is what else this agent did. [00:09:51] Speaker 00: You know, so in terms, in the end, it comes down to having a fair opportunity to defend against the proposal and the evidence that the agency [00:10:00] Speaker 00: should have provided to us. [00:10:02] Speaker 02: So I guess I'll try one more time. [00:10:06] Speaker 02: Maybe I'm not being clear. [00:10:08] Speaker 02: If he's on notice that the agency is taking the sanction because they damaged the relationship between the agency and the public, and if he doesn't respond to that, what more would he have arguably responded to if they had said, and this is based on contact with the NGOs? [00:10:28] Speaker 00: Well, to answer your question, Your Honor, [00:10:30] Speaker 00: I know those people. [00:10:32] Speaker 00: One of those people, the NGOs, is one of my law school professors. [00:10:37] Speaker 00: One month before the proposal came out for my client, I was addressing these very people myself, talking about the process that border patrol agents go through when they engage in the use of deadly force. [00:10:50] Speaker 00: I could have gone to these people and said, the chief is saying that you guys are claiming there's a loss of trust. [00:10:56] Speaker 00: And to that fact, one month before when I was talking to Andy Silverman, the law school professor, he didn't mention these Facebook postings. [00:11:04] Speaker 00: He didn't mention anything involving my client. [00:11:07] Speaker 00: I would have had an opportunity to go to these very people who I already had contacts with to see whether or not there was any validity to the chief's assertion that there was a loss of trust, because that was their only direct evidence. [00:11:20] Speaker 00: All of this is important not only in terms of establishing [00:11:24] Speaker 00: the validity of the charge, but certainly to the penalty. [00:11:28] Speaker 00: 45 days was outrageous, in my opinion, for them to even propose that. [00:11:31] Speaker 00: The fact that they went to 15 was recognizing substantial problems in their case. [00:11:36] Speaker 00: In my opinion, the reason they stayed at 15 days is because of evidence like this, where they could say, look, there's some real harm here. [00:11:47] Speaker 00: In the proposal, we made allocations of generalized harm. [00:11:50] Speaker 00: Here's some real harm. [00:11:51] Speaker 00: That's justifying the 15 days. [00:11:53] Speaker 00: And that goes to the Ward case that says that this was new. [00:11:58] Speaker 00: It was material. [00:11:59] Speaker 00: It influenced the deciding official and the determination of a penalty. [00:12:03] Speaker 00: That's the definition that Ward provides us in terms of a due process violation that now requires this case to be remanded back. [00:12:11] Speaker 00: Or frankly, I think that this court has enough to find that there isn't a substantial due process violation sufficient to say that this case not get remanded, that this case get [00:12:20] Speaker 00: reverse for a new constitutionally sufficient proceeding. [00:12:25] Speaker 00: And Your Honor, I don't know if you have your clock for any of my time. [00:12:27] Speaker 00: Yes, I do. [00:12:28] Speaker 00: One, two, one here from the top man. [00:12:30] Speaker 00: Thank you. [00:12:38] Speaker 01: May it please the Court, and good morning. [00:12:40] Speaker 01: As the Court recognized, actual harm with respect to the misconduct charged in this case for the agency to make its next determination is not required [00:12:49] Speaker 01: It is the risk of harm with respect to what the agency charges, which is at issue. [00:12:54] Speaker 02: Yeah, but isn't it the case? [00:12:55] Speaker 02: I mean, if the deciding official said he thought this was highly relevant, we're talking about what he based his decision on. [00:13:02] Speaker 02: So you may be right, but if we've got testimony from the deciding official that he relied on this in order to assess the harm to the public, why isn't your friend correct that there's a problem with that? [00:13:13] Speaker 01: Well, as the court notes, the proposal letter identifies the public. [00:13:18] Speaker 01: as the stakeholder that the agency had great concern with respect to the misconduct. [00:13:23] Speaker 01: A subset of the public, as recognized by I would imagine most border patrol agents, are in fact NGOs. [00:13:30] Speaker 01: The broadcast itself, the PBS broadcast, concerned principally the relationship between the border patrol and NGOs and was focused greatly on the conduct between Mr. Kermes and NGOs. [00:13:45] Speaker 01: So as the court noted, [00:13:47] Speaker 01: The public and NGOs being a part or a component of the public was a great concern to the agency from day one in this investigation. [00:13:56] Speaker 01: The deciding official's testimony is cumulative and confirmed that concern, but offered no new information or doesn't demonstrate that he considered any new information. [00:14:05] Speaker 01: The agency from day one in this proceeding had concerns regarding the impact of Mr. Kirby's misconduct on the public, NGOs or function of the public. [00:14:14] Speaker 01: Mr. Kermes, in his written reply to the proposal letter, in fact, raises the conduct of NGOs, demonstrating that he recognizes NGOs are a stakeholder group that the Border Patrol is concerned with and interact with on a regular basis. [00:14:31] Speaker 01: In fact, Mr. Kermes, in that written reply to the proposal letter, talks about how he dislikes NGOs and has opinions about NGOs. [00:14:40] Speaker 01: So it's hard to imagine based on the record before the court, how Mr. Cremes wasn't on notice that his conduct with respect to NGOs were of concern in the proposal letter and to put forward evidence concerning any evidence that Mr. Cremes may have that would refute any concerns over the public. [00:14:59] Speaker 04: Is it possible that the evidence could have been used by the deciding official as a kicker, like in raising the penalty? [00:15:10] Speaker 04: above and beyond what the deciding official would have applied here. [00:15:16] Speaker 01: Well, as the court noted, the deciding official received a proposal that I believe is indicated in the record was for 30 days. [00:15:26] Speaker 01: And because, as he identifies in his deciding official's letter, mitigates that punishment to 15 days, recognizing Mr. Kirby's history of service, I believe, of 20 years. [00:15:37] Speaker 01: So there was no aggravation of the penalty. [00:15:40] Speaker 01: There was no enhancement of the penalty. [00:15:42] Speaker 01: In fact, the deciding official looking at Mr. Fermi's background reduced the penalty. [00:15:46] Speaker 02: Yeah, but I think the question goes to, but how do we ever know whether he would have reduced it more in the absence of this? [00:15:54] Speaker 01: Well, based on the record, it's not clear why he would have necessarily enhanced the punishment given that he already had the agency, already had the concerns that the public would be impacted by. [00:16:06] Speaker 01: by Mr. Kirby's misconduct. [00:16:09] Speaker 02: Can I move you on to something else, which is that what if we thought that the allegations with regard to this phone call with Mr. Epstein were not sufficient? [00:16:23] Speaker 02: I mean, we're just inadequate and didn't justify any kind of proposed action. [00:16:29] Speaker 02: What happens to your case? [00:16:31] Speaker 02: How do we satisfy ourselves that [00:16:33] Speaker 02: if the agency had exclusively relied on the broadcast stuff and the Facebook and not on the phone call, it would have reached the same result? [00:16:41] Speaker 01: Well, although the agency did charge conduct with or did consider conduct disclosed to the government with respect to the Go Pound Sand comments, certainly the Facebook comments alone and the biased expressions that they demonstrate regarding individuals, Mr. Kermes is directly responsible as a law enforcement officer for interacting with, [00:17:03] Speaker 01: as well as his ability to testify at trial with respect to showing bias and any potential issues regarding Giglio. [00:17:13] Speaker 01: On that basis alone, on the Facebook comments alone, [00:17:17] Speaker 01: There would be more than adequate support with respect to Nexus to punish Mr. Kermes for the misconduct charged. [00:17:24] Speaker 01: How do we know? [00:17:25] Speaker 02: I mean, this isn't a theoretical exercise. [00:17:27] Speaker 02: We're reviewing what it is this particular deciding official relied on and what he did. [00:17:33] Speaker 02: So how do we know? [00:17:34] Speaker 02: I mean, you may be right as a legal matter that there's enough to justify it. [00:17:39] Speaker 02: But how do we know that the deciding official didn't say to himself, well, if he had made that phone call, I probably would just suspend him for 10 days. [00:17:47] Speaker 02: But that phone call, he deserves another five days added to that. [00:17:51] Speaker 01: Well, the focus of the deciding official's letter, as well as his testimony, was principally on the issues concerning the Facebook comments and their impact on Mr. Fermi's ability to testify. [00:18:05] Speaker 01: With respect to that particular example, it's unclear how any discourteous comments to the press would... Has he ever asked, do you know if he was ever asked, [00:18:14] Speaker 02: if this conduct alone, would you have done the same thing with this conduct alone? [00:18:22] Speaker 01: I don't believe he was asked to isolate the specific conduct during the arbitration hearing and to give a response by either government counsel below or opposing counsel. [00:18:34] Speaker 01: So I don't believe there's any [00:18:36] Speaker 01: isolation or separation that's in the record in this case. [00:18:40] Speaker 02: Can I ask you about that comment? [00:18:41] Speaker 02: What is the agency's position on what he was supposed to say or do? [00:18:49] Speaker 02: Well, the agency's got an unlisted phone number. [00:18:51] Speaker 02: He gets a call when he's on his way out to go to work. [00:18:54] Speaker 02: He's arguably from, I think this is undisputed, but he's pretty courteous [00:19:00] Speaker 02: upfront and trying to be responsive and does the right thing, which is says repeatedly, you shouldn't be calling me. [00:19:06] Speaker 02: You should be calling my agency and their public affairs office. [00:19:09] Speaker 02: I would assume that's precisely what the agency wants somebody to do. [00:19:13] Speaker 02: But this guy wouldn't let it go and obviously had a gotcha question. [00:19:17] Speaker 02: So what should he have done? [00:19:22] Speaker 02: What was he compelled to do in response to Mr. Epstein's pressing this point? [00:19:27] Speaker 01: He was supposed to do what he did up until the point where he told the gentleman, Mr. Epstein, to go pound sand. [00:19:33] Speaker 01: He did, in fact, direct... Well, what if he had hung up on him? [00:19:37] Speaker 02: So he didn't say, you know, after Epstein said this stuff and it got him in the way, clearly a hang up annoyed, not a gotta go now, see ya. [00:19:46] Speaker 02: What if he had just hung up on him? [00:19:48] Speaker 01: Would that be a chargeable event? [00:19:50] Speaker 01: Under those circumstances, I doubt that that conduct would have been considered by the agency simply [00:19:56] Speaker 01: hanging up. [00:19:57] Speaker 01: The issue that was disclosed, the comment that was disclosed in Mr. Kermey's own reply brief was the go-pound-sand comment, and I believe that is certainly the agency's focus with respect to conduct involving Mr. Epstein. [00:20:11] Speaker 01: The agency would likely agree that up until that point, Mr. Kermey said the things that were appropriate to say. [00:20:17] Speaker 01: I try to imagine that the hanging up on Mr. Epstein alone would have [00:20:23] Speaker 01: resulted in that conduct being considered. [00:20:26] Speaker 01: It was the go-pound-sand comment. [00:20:28] Speaker 02: Because it was discourteous? [00:20:32] Speaker 02: I mean, what is the standard that he should have been more courteous that you shouldn't be discourteous to someone who calls you at your home in your unlisted number and presses you over a matter? [00:20:42] Speaker 02: I'm having a hard time seeing what the standards are here. [00:20:47] Speaker 01: Well, Your Honor, the agency issues standards of conduct that concern public contact. [00:20:53] Speaker 01: As law enforcement officers in particular, who interact with the public, who interact with press, who interact with those they apprehend, they are held and are put on notice. [00:21:04] Speaker 02: So if it was a telemarketer calling him and he just pressed and the guy said something even more unpleasant than go pound sand, would that be a chargeable event? [00:21:14] Speaker 01: Under those circumstances, if the telemarketer wasn't calling Mr. Kermes to talk about border patrol issues, it would be hard to imagine that the agency would move forward in any punishment with respect to a telemarketer. [00:21:24] Speaker 01: Mr. Epstein was calling to talk about the border patrol, in particular, Mr. Kermes' conduct or misconduct. [00:21:30] Speaker 02: But you're not suggesting that the agency's position is that he got charged because he refused to talk to him, right? [00:21:36] Speaker 01: No, Your Honor. [00:21:37] Speaker 01: And in fact, the proposal letter is focused on the Facebook comments and the broadcast [00:21:42] Speaker 01: on the broadcast of those comments, the agency only became aware of the Go Pound Sand comments as a function of the written reply to the proposal letter. [00:21:52] Speaker 01: So the agency did not have any awareness and made no decisions regarding charging on the Go Pound Sand comment until it was disclosed to the government in Mr. Kirby's own filings at the arbitration. [00:22:05] Speaker 03: Let me ask you, we've been focusing on the Facebook posting by Mr. Kirby's, [00:22:10] Speaker 03: Suppose instead of this, you didn't have a Facebook posting, but Mr. Kermes had sent this picture with the comment under it to some friend of his via an email attachment. [00:22:24] Speaker 03: And that was the only exposure that the item received. [00:22:30] Speaker 03: But then Mr. Epstein somehow had been able to get into his email account or had gone to the person who received it and had received it. [00:22:40] Speaker 03: we have a different case. [00:22:42] Speaker 01: The second scenario, no, there wouldn't be. [00:22:45] Speaker 01: If a third party, Mr. Kearney sends these comments in the picture to a third party, and the third party willingly provides that picture to Mr. Epstein, and then Mr. Epstein, as a function of working for PBS, broadcasts that comment, that would be actually... How has the agency been impacted if there's just one person has [00:23:06] Speaker 01: Well, in that particular case, that one person is still a member of the public and may have an adverse opinion of the Border Patrol, its ability to conduct its mission, as well as Mr. Kirby's ability to do his duties. [00:23:20] Speaker 01: I recognize that that is a harder case than the one presented here. [00:23:23] Speaker 03: Well, supposing the person had sent an email back to Mr. Kirby saying, yeah, I agree with you. [00:23:28] Speaker 03: He obviously doesn't have an unfavorable position of view. [00:23:32] Speaker 03: And what if, though, Mr. Epstein had hacked into his email account? [00:23:37] Speaker 03: Would we be here today? [00:23:38] Speaker 01: Well, under those circumstances, and I know there's been some comment in the briefs regarding hacking and even some citations. [00:23:44] Speaker 01: Oh, no. [00:23:45] Speaker 03: Just assume. [00:23:46] Speaker 03: My hypothetical is he sends the email to a friend. [00:23:51] Speaker 03: The friend receives it, doesn't do anything with it. [00:23:53] Speaker 03: But somehow Mr. Epstein hacked into his email account. [00:23:57] Speaker 03: And in that way, the communication came to light. [00:24:01] Speaker 01: There is no legal basis that the government's aware of that would mitigate its ability to move forward with an adverse action on that basis, just because of a third party's actions, whether they be hacking or not. [00:24:15] Speaker 04: Should federal employees believe that any emails, whether it's on their private email account or their employee account, they just don't have any expectation of privacy whenever they do any kind of communication with a single person? [00:24:32] Speaker 01: No. [00:24:35] Speaker 01: For an individual that is serving in a law enforcement capacity, making comments regarding individuals that he or she is supposed to be responsible for, that is the kind of conduct that is of concern to the agency. [00:24:49] Speaker 01: Even if that's made in private? [00:24:53] Speaker 03: Suppose Mr. Epstein had overheard Mr. Kermes make this comment to someone, just to a friend. [00:25:03] Speaker 03: Would that be a basis for, and then he had reported that he had heard this at an event, and then the agency had moved forward. [00:25:12] Speaker 01: That seems a little bit of a reach, don't you think? [00:25:16] Speaker 01: I think that would be a far tougher case than the one that was presented here, where Mr. Curran-Rees provided these comments on Facebook to at least 300 people, as he acknowledges, and those comments were clearly [00:25:27] Speaker 01: acquired by PBS and broadcast. [00:25:29] Speaker 03: I certainly agree that there are... So you're confining the government's position to this case. [00:25:33] Speaker 03: You're not saying the government would go forward if he had just sent an email to a friend and then it had been hacked. [00:25:39] Speaker 01: No, Your Honor. [00:25:39] Speaker 03: You're not advancing that position. [00:25:41] Speaker 01: We are confined to the facts before us in this particular case from the government's perspective. [00:25:46] Speaker 01: We certainly appreciate that there are a series of sliding scales of possibilities in this case. [00:25:53] Speaker 01: I would also state to your question, Your Honor, [00:25:56] Speaker 01: that the First Amendment, the government fully recognizes, is a component of any question of employees' speech on or off duty. [00:26:05] Speaker 01: In this particular case, with respect to the First Amendment arguments, we would argue that the comments that are at issue are not a matter of public concern. [00:26:12] Speaker 01: But even if they were, the court should engage, as the arbitrator did, in the balancing test that weighs those comments against the agency's interests. [00:26:21] Speaker 01: And in this case, the agency's interests are quite great. [00:26:23] Speaker 01: with respect to its ability to engage with the public and engage in its mission, as well as to Mr. Kirby's ability to do his job, both interacting with those he's responsible for apprehending and addressing in a law enforcement capacity, as well as his ability to give testimony. [00:26:39] Speaker 01: But certainly, the First Amendment would have interplay with and has an important role in determining how to evaluate these types of comments and employee speech generally. [00:26:56] Speaker 02: Thank you. [00:26:57] Speaker 00: Your Honor, you don't have to guess about the influence of the ex parte statements on the penalty. [00:27:16] Speaker 00: The deciding official said that he factored them in, and you will find that in the joint [00:27:23] Speaker 00: exhibits page 171, where he says that he factored that right into his decision about how to correct that behavior. [00:27:30] Speaker 00: As I've argued before, it's not a matter of whether he did it, it's a matter of degree. [00:27:34] Speaker 00: You also, I think, should look at the proposal, because one-third of the proposal is focused on the statements that Mr. Kermes made to the PBS producer. [00:27:44] Speaker 00: And whether or not the deciding official considered those, the answer is he did, and he said so. [00:27:51] Speaker 00: And you'll find that [00:27:55] Speaker 00: in the appendix at pages 142 and 180. [00:27:59] Speaker 00: In both cases, he's telling you that he considered those statements, including the Go Pound Sand statement when he was determining what to do with Mr. Kermes. [00:28:09] Speaker 00: In reference to the First Amendment claim, I would invite the court to seriously consider that claim because I think rather than having this case be remanded for either a new constitutionally sufficient proceeding or for any some additional fact-finding, I think the First Amendment [00:28:25] Speaker 00: case, the claim, would be dispositive of this case. [00:28:30] Speaker 00: And I think that the First Amendment, and it's surprising the Border Patrol continually fails to recognize that Border Patrol agents have First Amendment rights, but they do. [00:28:41] Speaker 00: In this particular case, I think it's important to note that these were off-duty statements made in a private Facebook setting. [00:28:49] Speaker 00: This was not open to the public when he made these. [00:28:54] Speaker 00: And the deciding official [00:28:55] Speaker 00: has agreed that when he was making these statements, he was not making them in reference to his official duties or his employment. [00:29:03] Speaker 00: The deciding official agrees with this in the appendix at 165-66. [00:29:07] Speaker 00: The picture in the statement, run you little bastards, and importantly, the Supreme Court has said that these statements have to be considered in the context of the entire record. [00:29:16] Speaker 00: They cannot be viewed in isolation just in terms of the posting itself. [00:29:20] Speaker 00: The entire record here establishes [00:29:22] Speaker 00: that statement, run you little bastards, reference a new practice by the aliens of running away instead of complying with agents' commands to stop and sit down. [00:29:30] Speaker 00: The testimony was clear that years ago, agents used to be able to go out there and capture 100 people by themselves and bring them in successfully. [00:29:39] Speaker 00: In 2009, when Agent Kermes made this posting, he was frustrated with the fact that clearly there had been a change in the field. [00:29:47] Speaker 00: Clearly, these groups of aliens were now, they call it quailene, were making the election to all run in different directions and make it much harder for the agents to capture them. [00:29:56] Speaker 02: So clearly, in contrast to I think the point you made a minute ago, his posting had an intimate relationship with his work and his duties as an officer. [00:30:08] Speaker 00: That certainly could be one inference, Your Honor, but I think another fair inference is that [00:30:12] Speaker 00: any person, whether he was a border patrol agent or a private citizen, would be concerned with this tactic in the field. [00:30:20] Speaker 00: I mean, particularly today, we have so much concern and worry about the border. [00:30:24] Speaker 00: What is happening in the field in terms of the actions by the aliens to not be apprehended is certainly something that is of huge public concern, regardless of whether or not a border patrol agent is making that statement. [00:30:37] Speaker 00: If you look at... Well, my time is up. [00:30:40] Speaker 00: I would just ask the court to consider that argument. [00:30:42] Speaker 00: Thank you. [00:30:43] Speaker 00: I thank both counsel and the cases submitted and that concludes our proceedings.