[00:00:00] Speaker 04: We just have one case for today, 2015-3140, Lal versus MSPB. [00:00:08] Speaker 04: Mr. Chousy, please proceed. [00:00:11] Speaker 01: Thank you, Your Honor. [00:00:13] Speaker 01: Your Honor, before I begin, I want to thank the court for its courtesies, given my health situation. [00:00:19] Speaker 01: And the same goes to the government, which was extremely courteous. [00:00:25] Speaker 01: If it please the court, Dr. Renu Lal was employed by the Department of Health and Human Services, the Centers for Disease Control since 1989, ultimately serving as a distinguished consultant in infectious diseases. [00:00:41] Speaker 01: In 2012, Dr. Lal was converted to the accepted service in which she served for over two years. [00:00:47] Speaker 01: So if you say she was converted to the accepted service, what was she in before the accepted service? [00:00:54] Speaker 01: She was in a series of one-year temporary appointments. [00:00:58] Speaker 03: Those were in the accepted service, too, weren't they? [00:01:01] Speaker 03: She was just converted to an indefinite term in the accepted service. [00:01:05] Speaker 03: Yes. [00:01:06] Speaker 03: OK. [00:01:08] Speaker 03: OK. [00:01:09] Speaker 03: This case, I think, is very complicated. [00:01:12] Speaker 03: She's always been appointed under this special hiring authority in 209F, right? [00:01:17] Speaker 03: Yes. [00:01:18] Speaker 03: Which places people, which allows them to be appointed without regard to competitive service procedures, which means she's in the accepted service. [00:01:26] Speaker 01: Yes. [00:01:27] Speaker 03: Well, there's only the competitive and the accepted. [00:01:28] Speaker 03: Right. [00:01:29] Speaker 03: And she's always been, I mean, and you get in the accepted service by a number of means, either by OPM, by statute, by president, right? [00:01:40] Speaker 01: I'm not sure about presidential appointees. [00:01:44] Speaker 03: The president, well, Schedule C is different, but I mean the president can accept certain classes. [00:01:49] Speaker 03: Yes, absolutely. [00:01:51] Speaker 03: He has that statutory authority, or maybe constitutional authority. [00:01:54] Speaker 01: Right. [00:01:55] Speaker 01: The difference is, and the point I was about to make, is that under the due process amendments, [00:02:00] Speaker 01: Once she passed the two-year period, she became an employee as defined by Section 7511. [00:02:10] Speaker 03: So can I ask you this? [00:02:11] Speaker 03: I know you've been doing federal personnel long for a really long time. [00:02:14] Speaker 03: Do you have any sense of how many other special hiring authorities there are out there? [00:02:20] Speaker 03: like 209F that accept people from the competitive service by statute as opposed to the Schedule A listing? [00:02:27] Speaker 01: I know that for HHS, there's 209F, which applies to consultants, and there's 209G, which applies to, I think, scientists and other physicians, possibly, and other kinds of categories. [00:02:44] Speaker 01: But those are the two that HHS uses. [00:02:48] Speaker 01: And I believe the department's interpretation of 209G is the same as 209F. [00:02:56] Speaker 01: To give you an idea, I think GAO did a report on Title 42 authority in 2012, and they found that 25% of NIH employees were Title 42. [00:03:15] Speaker 01: In 2013, I saw this morning, there were over 18,000. [00:03:19] Speaker 01: And when you say Title 42, you mean the whole group, right? [00:03:23] Speaker 01: 209F and 209G. [00:03:24] Speaker 03: Oh, just 209F and 209G, not the uniformed officer corps? [00:03:28] Speaker 03: No. [00:03:28] Speaker 01: OK. [00:03:31] Speaker 01: And in 2013, there were over 18,000 employees at NIH. [00:03:38] Speaker 01: So 25% of them, if that's GAO's estimate. [00:03:41] Speaker 01: So there's over 4,500 of these people [00:03:44] Speaker 03: We looked at the report, I don't remember the details, but is there any breakdown of how many of those are serving under term appointments instead of indefinite appointments like the ones here? [00:03:57] Speaker 01: We provided the information in the appendix. [00:04:01] Speaker 01: Apparently in 2012, [00:04:04] Speaker 01: HHS, and possibly it was in response to the GAO study, but HHS converted Dr. Lau under 209F for the first time. [00:04:15] Speaker 01: And I believe it was because they were getting pressure with respect to these constant term appointments, which provided the employees with no protection at all. [00:04:26] Speaker 01: I looked as hard as I could for how many Title 42 employees there were at HHS. [00:04:34] Speaker 03: So I guess, I mean, this whole thing, frankly, I think you have a very good plain language argument on 7511 and the due process amendments. [00:04:43] Speaker 03: On the other hand, it seems clear that the agencies have been operating under the assumption for many, many years that there is no appeal rights. [00:04:52] Speaker 03: And they've been hiring people with that in mind. [00:04:55] Speaker 03: And they've probably converted a lot of these people to indefinite instead of term with that in mind as well. [00:05:02] Speaker 03: So I understand you have your legal case, but it seems like there may be some really bad ramifications for people going forward as to whether they're going to be classified as term or indefinite if you win. [00:05:15] Speaker 01: Well, I don't believe the department could go back to classifying these people as term. [00:05:21] Speaker 03: No, no, but I mean in terms of future hiring. [00:05:23] Speaker 03: I mean, it seems likely that [00:05:25] Speaker 03: if they're going to be subject to appeal rights, if they're classified as indefinite and not given short-term appointments, that they're going to go back to using short-term appointments. [00:05:33] Speaker 01: But these aren't short-term appointments. [00:05:37] Speaker 01: Many of these Title 42 employees have been employed by HHS for years. [00:05:43] Speaker 03: But under term appointments. [00:05:45] Speaker 01: Only with respect to Dr. Lal and CDC, I believe the FDA and, I mean, I have clients at FDA and- So the rest of them use the indefinite equipment. [00:05:57] Speaker 01: I believe they do. [00:05:58] Speaker 05: I agree. [00:05:59] Speaker 05: Maybe my questions are going to be way too simplistic given how familiar both of you are with these topic areas and have been for years. [00:06:06] Speaker 05: But I just want to get to the cases. [00:06:08] Speaker 05: And as I see the battle ground in the fight over the cases, [00:06:14] Speaker 05: is that you think this case is closer to Briggs, and the government thinks it's closer to Bennett. [00:06:20] Speaker 05: Is that fair? [00:06:21] Speaker 05: Yes, that is fair. [00:06:22] Speaker 05: OK, so you're not saying that we would have to say that we would have to overrule Bennett to rule in your favor? [00:06:29] Speaker 01: No, not at all. [00:06:30] Speaker 01: You see daylight between the two. [00:06:33] Speaker 01: Absolutely, and I think so does the court in Bennett. [00:06:37] Speaker 01: Miss Bennett invoked Briggs in her defense. [00:06:41] Speaker 01: She said that under Briggs, [00:06:44] Speaker 01: I should have appeal rights. [00:06:45] Speaker 01: And the court specifically said in Bennett, you would, but for the fact that your statute specifies that you can be removed without regard to the civil service laws. [00:06:57] Speaker 01: Whereas in Briggs, it did not say that. [00:07:00] Speaker 05: OK, so the language in Bennett that says in order to [00:07:06] Speaker 05: have appeal rights, it would have to say so affirmatively. [00:07:10] Speaker 01: Yes. [00:07:10] Speaker 05: You think that it wasn't necessary to the decision and that, in fact, that saying so affirmatively should relate to the lack of removal, the lack of appeal rights. [00:07:23] Speaker 01: No. [00:07:23] Speaker 01: I believe what this court said in both Todd and Bennett. [00:07:29] Speaker 01: Todd first, because Todd was the first case to come after the due process amendments. [00:07:33] Speaker 01: which redefined employee to include these accepted service employees. [00:07:37] Speaker 01: And Todd went in and invoked the due process amendments. [00:07:40] Speaker 01: And this court said, and Todd, you're right. [00:07:43] Speaker 01: Under the due process amendments, you would have the right to appeal, except for the fact that your appointing statute says you can be removed without regard to the civil service laws. [00:07:54] Speaker 03: It actually was even more specific, wasn't it? [00:07:56] Speaker 03: It said it could be removed without regard to chapter 75. [00:07:59] Speaker 01: Well, I think it said 7511, 7512, and 7701, which is the MSPB statute. [00:08:06] Speaker 01: So it was specific, but clear. [00:08:09] Speaker 01: And in Bennett, the appointing statute said, employees shall be appointed, compensated, and removed. [00:08:17] Speaker 04: without regard to the provisions of Title V. And isn't it true that after Briggs, Congress actually amended the statute to say may appoint and remove? [00:08:26] Speaker 04: Yes. [00:08:27] Speaker 04: And that in our case, the statute only says may appoint. [00:08:31] Speaker 04: That's right. [00:08:31] Speaker 04: And so Congress, of course, would be free to make a Briggs-style amendment, which may very well change, even if you prevail today, it could change for future employees the state of the law. [00:08:42] Speaker 01: That's right. [00:08:45] Speaker 01: It would be interesting if that was the choice that Congress made. [00:08:50] Speaker 03: Can I just ask you about Bennett a little bit more, though, in comparison to this case? [00:08:54] Speaker 03: Because Bennett, in this case, involved really, really old statutes. [00:08:58] Speaker 03: They date back to the 40s and 50s, right? [00:09:01] Speaker 03: They've been amended, but the special hiring authorities in both of them are old. [00:09:05] Speaker 03: And they use kind of a different language. [00:09:08] Speaker 03: But neither of them had any thought as to whether there was going to be some kind of appeal rights to the MSPB when they were enacted. [00:09:17] Speaker 03: Because what they were both doing is accepting people from the competitive service rules then in place. [00:09:24] Speaker 01: Is that right? [00:09:27] Speaker 01: I think it's hard to read the statute in Bennett that way because they specifically... Was the statute in Bennett amended after the CSRA to do that? [00:09:37] Speaker 01: Yes, it was amended and renumbered. [00:09:39] Speaker 03: It was previously something other than... I think it earlier... But was it significantly changed or did it have the same language that you could be appointed and employed without regard to civil service laws? [00:09:51] Speaker 03: I'm not trying to trip you up here, but I find [00:09:53] Speaker 03: The specificity of the language in it to be a little bit of a red herring because nobody was contemplating when it said, appointed an employee without regard to civil service laws, anything about what was going to happen in the CSRA or the due process amendment. [00:10:08] Speaker 03: And the language that they used in this statute, appointed without regard to civil service laws, I think was pretty much another term of art to accept people from competitive service. [00:10:19] Speaker 03: rules at the same time. [00:10:20] Speaker 01: Well, but it was primarily the competitive service salary rules. [00:10:25] Speaker 01: You know, in the GAO report that I referenced, they said that over 1,400, this is 2012, over 1,400 Title 42 employees at HHS were earning an excess of 150. [00:10:37] Speaker 03: Well, that's today, though. [00:10:38] Speaker 03: I mean, when the 209 effort, that predecessor was enacted a long time ago, it may have been to get them so they could hire outside the competitive service and get them more money. [00:10:48] Speaker 03: But they were outside of the competitive service altogether. [00:10:50] Speaker 03: They didn't have the same kind of appeal rights that old people did to the Civil Service Commission. [00:10:55] Speaker 01: Well, you know, I started to become familiar with the Federal Civil Service in 1974, and employees had appeal rights. [00:11:04] Speaker 01: There was the Civil Service Commission's Appeals and Review Board, which went back a fair way. [00:11:11] Speaker 03: Congress had long provided... Right, but I think you would agree that these 209F employees couldn't have gone there. [00:11:18] Speaker 01: I don't know why we should make that assumption. [00:11:22] Speaker 03: Well, I think that's the point of all this language dating back. [00:11:25] Speaker 03: Maybe if they were preference eligible, they could have gone there. [00:11:28] Speaker 03: But I mean, I think it's pretty clear that when you're appointed without regard to the civil service laws, they don't apply to you. [00:11:34] Speaker 01: Well, I don't believe that that's clear. [00:11:36] Speaker 01: And the reason I don't believe it's clear is because of the specific statute in Todd. [00:11:44] Speaker 01: Todd said that he could be appointed [00:11:47] Speaker 01: without regard to the Civil Service Act and 75, 75-12, and 70-70. [00:11:51] Speaker 01: Sure. [00:11:52] Speaker 03: But I mean, did you look at Todd? [00:11:54] Speaker 03: Todd also involves an old statute. [00:11:57] Speaker 03: And we traced back the legislative history on that. [00:12:00] Speaker 03: And it was modified at various points to make it more specific, to specifically include the references to the CSRA provisions. [00:12:09] Speaker 01: And this one hasn't been. [00:12:11] Speaker 01: Yes, Judge. [00:12:11] Speaker 01: But I believe that that action by Congress with respect to the VA employees and Todd [00:12:17] Speaker 01: is an indication that it did not intend that result for the Title 42 employees here. [00:12:24] Speaker 01: In fact, if appointment without regard to the Civil Service Act included removal, then why would there be the need to add Chapter 75 and 77? [00:12:37] Speaker 01: That's really, I think, an indication of Congress's intention to specifically provide it for those employees. [00:12:45] Speaker 01: Bennett was of course the VA canteen, but not doing it here. [00:12:53] Speaker 01: So I think we have three points. [00:12:56] Speaker 01: Number one, Dr. Lau was an employee after the due process amendments. [00:13:02] Speaker 01: I believe that this court has made clear that absent the specific reference to removal, appointing an employee without regard to the civil service laws is not enough. [00:13:14] Speaker 01: And in that case, OPM's regulation, which provides that an employee like Dr. Lal, under Title 42, who is appointed without regard to the civil service laws, is still denied appeal rights unless Congress specifically says that she has them. [00:13:37] Speaker 01: And in Briggs, this court said that that was an ultra-virus reading. [00:13:42] Speaker 04: You said you had three points, because you're in your rebuttal time. [00:13:45] Speaker 04: Three points. [00:13:45] Speaker 04: I got one was employee after due process. [00:13:48] Speaker 04: Two was statute doesn't say removal, not enough. [00:13:51] Speaker 01: In the statutes. [00:13:52] Speaker 01: And number three is OPM's regulation, which the board relied on, cannot provide by regulation what Congress hasn't provided by statute. [00:14:01] Speaker 04: OK. [00:14:02] Speaker 04: Why don't we save the rest of your time for rebuttal. [00:14:04] Speaker 01: Thank you very much. [00:14:09] Speaker 04: Mr. Moro. [00:14:10] Speaker 02: The board's basic view of these statutes is that there's a difference between statutes with a broad generalized exclusion without regard to the civil service laws or at least in earlier days without regard to the competitive service laws versus statutes which list individual provisions that don't apply or in some cases exempt particular actions by the agency as [00:14:39] Speaker 02: without regard to the civil services in the Fennett case. [00:14:42] Speaker 05: But isn't that what we said in Briggs, that there is a distinction between those two categories? [00:14:46] Speaker 02: Yes. [00:14:46] Speaker 02: Briggs changed the law in that regard, from that point. [00:14:51] Speaker 05: Prior to Briggs... I don't know that it changed the law. [00:14:53] Speaker 05: It interpreted the statutory provisions. [00:14:56] Speaker 02: Yes. [00:14:57] Speaker 02: But what I'm saying is that the exclusion of the... Beginning with Briggs, the board, and then the court affirming the board, [00:15:05] Speaker 02: found that the exclusion from the competitive service was only a partial, particular exclusion and not a generalized one. [00:15:12] Speaker 05: But wasn't that the whole point of the 1990 amendments, is to bring these excluded employees into the category of employees that do have appeal rights? [00:15:22] Speaker 02: In general, that was the case. [00:15:23] Speaker 02: But there was no intent shown, and the court has found that they did not intend to address [00:15:30] Speaker 02: separate statutory authorities and outside Title V, such as we have here. [00:15:36] Speaker 05: We have said if there are clear separate statutory authorities that bar any rights upon removal, then we would assume that Congress did not mean to override those. [00:15:48] Speaker 05: But in the absence, because what would be left? [00:15:51] Speaker 05: Who would the 1990 amendments affect if we said that every single statute that exempted anyone [00:15:59] Speaker 05: with respect to their hiring would not also exempt them with respect to their removal, or would? [00:16:07] Speaker 02: Well, there were a number of accepted service employees who are not accepted because they're under these specific statutes saying appointed without regard to the civil service. [00:16:18] Speaker 02: They're classified as accepted for other reasons by OPM or by statute. [00:16:25] Speaker 02: We'll give you some examples. [00:16:29] Speaker 03: The vast majority of accepted service is done by OPM and is on Schedule A, not through these special hiring authorities under a specific statute. [00:16:38] Speaker 02: And the basic concept is they don't have to go through a competitive examination, as you do with a competitive service. [00:16:46] Speaker 02: Although the statute governing 3320 requires a merit-like [00:16:54] Speaker 04: evaluation of them, but it doesn't require the same kind of... But all of those employees would then be eligible for appeal rights upon removal after the 1990 amendments? [00:17:05] Speaker 02: Yes, after the 1990 amendments. [00:17:07] Speaker 05: But there's nothing in the 1990 amendments that says this applies to Schedule A employees only? [00:17:14] Speaker 02: No. [00:17:16] Speaker 03: It simply... Isn't this the real problem? [00:17:19] Speaker 03: I mean, there are references to that in legislative history. [00:17:22] Speaker 03: But Congress didn't put that in the statute. [00:17:25] Speaker 03: Well, that's correct. [00:17:26] Speaker 03: I mean, I understand your argument and the Justice Department's argument to be that 209F, if you look at it, always meant to exclude these people from CSRA coverage. [00:17:36] Speaker 03: But I don't see how you get there. [00:17:38] Speaker 03: Because all 209F does is accept people from the competitive service. [00:17:43] Speaker 03: Everybody agrees that these people aren't in the competitive service. [00:17:47] Speaker 03: And so they're in the accepted service. [00:17:50] Speaker 03: But the due process amendments got enacted. [00:17:53] Speaker 03: it seems like, unless you can find some way to carve out exception by statute rather than exception by regulation, that it swept in people like the petitioner here. [00:18:06] Speaker 02: The appointed provision excluded them from the civil service laws, not just from the competitive service. [00:18:14] Speaker 02: And because of that, and the only way you can limit that is [00:18:24] Speaker 02: The petitioner would limit it by using the word appointment, because it uses the word appointed. [00:18:28] Speaker 02: But appointment in the federal service is much more than just the initial hiring act. [00:18:33] Speaker 03: But again, isn't the problem, it's still when you say it's accepting them from all these laws. [00:18:40] Speaker 03: The same thing would have applied to all the pre-CSRA exceptions from the competitive service by, I guess, the old Civil Service Commission. [00:18:50] Speaker 02: But there were various regulations governing them [00:18:54] Speaker 02: also when OPM has accepted them, but it also provides various regulations dealing with part 302 deals with how they're to be treated. [00:19:02] Speaker 03: So you think all federal employees that are accepted from the competitive service by statute, from the civil service laws by statute, have no appeal rights? [00:19:15] Speaker 02: I think that would be correct, yes. [00:19:16] Speaker 02: How is that consistent? [00:19:18] Speaker 02: At least if it's outside of Title V, by separate statutory authority. [00:19:21] Speaker 03: How is that consistent with the board's decision in Hamlet regarding the power of the attorney general to appoint assistant US attorneys, where you came to the opposite conclusion? [00:19:34] Speaker 02: I'm not familiar with that. [00:19:35] Speaker 03: I mean, it's a statutory exception. [00:19:38] Speaker 03: I think it's probably entitled 28, since it involves the Attorney General's power. [00:19:43] Speaker 03: And the board held that, I'll ask this to you. [00:19:48] Speaker 00: They're like other accepted services. [00:19:49] Speaker 03: She may be unhappy to hear this. [00:19:51] Speaker 03: But the Department of Justice acquiesced in that decision and didn't appeal it, and agrees now that despite the fact that assistant US attorneys are appointed through the specific statutory authority, [00:20:05] Speaker 03: and can be paid off schedule nevertheless have appeal rights. [00:20:12] Speaker 02: I think that must be a special case because it isn't consistent with the way these other statutes have been ruled on by the court over the years. [00:20:22] Speaker 02: There's many decisions. [00:20:24] Speaker 03: Actually, I see a very clear line here. [00:20:27] Speaker 03: And I think the line is, [00:20:32] Speaker 03: If there are specific references, like there are in Bennett and Todd, to post-CSR protections and appeal rights, we found that that's enough to get it out. [00:20:43] Speaker 03: But if it's very general provisions that were adopted well before the CSRA, or don't mention those kind of things, we found them not to get you out of the due process amendments. [00:20:56] Speaker 05: Are you asking that we overrule Briggs? [00:20:58] Speaker 02: No. [00:20:59] Speaker 02: No. [00:20:59] Speaker 02: Briggs, we don't disagree with Briggs, because as we see it, [00:21:02] Speaker 02: Briggs is a statute which lists specific provisions which are exempt and did not list removal, in contrast with a generalized exception which simply exempts generally from the civil service laws. [00:21:18] Speaker 02: And in that connection, I want to mention with Todd, the 2020 USC 241A provision there is also a list of specific [00:21:31] Speaker 02: exclusions, the reference to the Civil Service Act is not a shorthand reference to the Civil Service law. [00:21:39] Speaker 03: Did you look at the legislative history, or the statutory history of Todd? [00:21:43] Speaker 03: Because it was enacted well before the CSR. [00:21:45] Speaker 03: Oh, long before that. [00:21:47] Speaker 03: And it was amended after it, I think, to add in those specific exclusions. [00:21:52] Speaker 02: But the initial reference to the Civil Service Act was a reference to the 1883 Pendleton Act. [00:21:59] Speaker 02: which is what started the whole system and only dealt with competitive examination and would not have said anything about removal. [00:22:07] Speaker 03: Why wouldn't we read into Todd the view of this court and Congress that these general exceptions weren't enough after the due process amendment and if Congress still wanted them not to have appeal rights, they went in and amended it specifically like they did in Todd and like they did in Briggs post [00:22:29] Speaker 03: our decision. [00:22:32] Speaker 02: If there's no affirmative evidence that Congress intended what you say. [00:22:36] Speaker 03: Well, except the plain language of 7511. [00:22:39] Speaker 03: I mean, it seems to me, it may be that this is what everybody understood, but Congress didn't put that in the statute. [00:22:47] Speaker 03: And I don't understand how OPM's gloss on a plain language statute saves you. [00:22:53] Speaker 02: Well, it sort of violates the principle that a broad general later statute should not overrule an earlier statute, which deals with a very specific and narrow subject. [00:23:03] Speaker 02: And that was the basis, in fact, for the court finding in Todd and again in Bennett that there was no implied repeal of these earlier statutes. [00:23:14] Speaker 05: But if, in fact, Congress really didn't intend the 1990 amendment to apply [00:23:19] Speaker 05: more broadly. [00:23:20] Speaker 05: Couldn't it have said so? [00:23:21] Speaker 05: Couldn't it have specifically limited its application to those that are not governed, that were not hired pursuant to statute? [00:23:32] Speaker 02: Well, it didn't say so in the statute. [00:23:34] Speaker 05: Right. [00:23:34] Speaker 05: It didn't say so. [00:23:36] Speaker 05: And we now know that... It didn't say either way. [00:23:39] Speaker 05: But we now know that it knows how to say [00:23:43] Speaker 05: that removal is also not governed by the 1990 amendments because it has amended statutes to do so. [00:23:51] Speaker 05: But it didn't go in and say any general statute or anybody hired pursuant to statute is not governed by this amendment. [00:23:59] Speaker 05: It didn't do that. [00:24:00] Speaker 02: But I don't think you can draw that much from it because there have been different reasons why they've made changes to these statutes, not [00:24:11] Speaker 02: It's not just a general thing, I don't think. [00:24:17] Speaker 02: It's my time up. [00:24:21] Speaker 02: So I think the basic picture that we see is that you have these specific, these generalized exceptions from the civil service laws and they distinguish these cases under those kinds of laws from the more recent ones where there's a list of provisions [00:24:41] Speaker 02: And it is therefore critical whether removal is excluded or not. [00:24:45] Speaker 04: OK, we have your argument. [00:24:46] Speaker 04: Your time is up. [00:24:47] Speaker 04: Thank you. [00:24:48] Speaker 04: So let's hear from Ms. [00:24:50] Speaker 04: Basak. [00:24:58] Speaker 00: Good morning, Your Honors. [00:24:59] Speaker 00: May I please the court? [00:25:01] Speaker 03: So I can tell from your reaction that you don't have any idea what Hamlet is either. [00:25:04] Speaker 03: But let me just lay it out for you. [00:25:06] Speaker 00: Sure. [00:25:07] Speaker 03: The Attorney General has the statutory authority [00:25:10] Speaker 03: to hire assisting US attorneys without regard to the civil service laws and can set the pay at whatever level he or she chooses. [00:25:20] Speaker 03: Despite that, and over the government's arguments, the board found that the due process amendments nevertheless extended MSPB appeal rights to those attorneys. [00:25:32] Speaker 03: It's accepted by service by statute, but is it very specific about accepting from removal and things like that? [00:25:40] Speaker 03: The Justice Department acquiesced in that decision. [00:25:42] Speaker 03: Why isn't that an indication that you agree that people accepted by statute can still be subject to the due process amendments? [00:25:53] Speaker 00: Well, Your Honor, I would focus here on these specific statutes at issue. [00:25:58] Speaker 00: I don't think that that would have been a concession and that a general rule exists that where you have that language that [00:26:05] Speaker 03: But that's really the problem for you here, is the cases that we found that appeal rights were still denied had very specific references, either in Chapter 75, which is the appeal process, or removals, which has been interpreted to be a reference to that. [00:26:22] Speaker 03: You don't have that here. [00:26:23] Speaker 03: You have a general statute that says appointed without regard. [00:26:26] Speaker 03: And it seems to me that all that does is put these people in the accepted service. [00:26:31] Speaker 03: And once they're there, you then look to 7511 to determine whether they have appeal rights or not. [00:26:38] Speaker 00: And as Your Honor pointed out earlier, this statute does date back significantly prior to the CSRA and the MSPB itself. [00:26:48] Speaker 00: The statutory history that I believe was referenced in the cases indicates that when the statute was created, it was intended to be a broadening [00:26:58] Speaker 00: a provision that at that time applied to the National Cancer Institute. [00:27:03] Speaker 03: See, I understand all this. [00:27:04] Speaker 03: And I understand when that statute was enacted, the whole point of this was to get higher authority, not having to go through the civil service process, not having to pay them that. [00:27:14] Speaker 03: And they clearly, at that time, probably had, you know, there was no MSPB. [00:27:18] Speaker 03: They had no appeal rights. [00:27:19] Speaker 03: I suspect that they had very limited appeal rights to the Civil Service Commission. [00:27:23] Speaker 03: But there were a lot of people like that. [00:27:25] Speaker 03: including almost everybody in the accepted service, whether they were there by statute or not. [00:27:29] Speaker 03: And that's why Congress, after Fausto, enacted the due process amendments to give very broad protections to accepted service employees with specific delineated exceptions. [00:27:41] Speaker 03: And they didn't make this distinction, which is what I think you and the board are ultimately relying on between accepted by statute and accepted by OPM under Schedule A. They could have, but they didn't. [00:27:54] Speaker 03: So why isn't that the end of the case for us? [00:27:56] Speaker 00: Well, Your Honor, I think our argument is that these employees are accepted by statute. [00:28:01] Speaker 03: No, I understand. [00:28:02] Speaker 03: But that's not what 7511 says. [00:28:05] Speaker 03: If Congress had said, we just want to give appeal rights to the vast majority of people that were accepted by regulation or by OPM under their Schedule A authority, they could have put that in. [00:28:16] Speaker 03: Or they could have put at the end of the list of exclusions of various agencies, they could have said, [00:28:21] Speaker 03: and anybody else accepted from the competitive service by statute. [00:28:26] Speaker 03: They didn't do that. [00:28:26] Speaker 03: They didn't make this distinction between accepted by statute, accepted by OPM, accepted from some other authority. [00:28:38] Speaker 00: I'm sorry. [00:28:39] Speaker 00: I'm entirely sure I understand the question. [00:28:40] Speaker 00: But I think our point is that this court has held in numerous cases that there are statutes that were not specifically referenced [00:28:50] Speaker 03: chapter 75 that do you name a single one of those cases though where that statute didn't specifically either reference the appeal rights provisions of the CSRA with regard to the MSPB or at least removal procedures. [00:29:06] Speaker 00: I do not believe that this court has seen such a statute at this point your honor. [00:29:14] Speaker 05: Do I understand your response to [00:29:17] Speaker 05: Judge Hughes' question regarding Hamlet, when you responded and said, well, that's a different. [00:29:22] Speaker 05: You've got to look at each statute by its own. [00:29:25] Speaker 05: If that's the case, do you disagree with your colleague's argument that there should be a bright line between those appointed by statute and those appointed pursuant to Schedule A? [00:29:40] Speaker 00: I don't know that I would go so far as to say that there is a bright line, Your Honor. [00:29:43] Speaker 00: Honestly, this is not a question that I [00:29:46] Speaker 00: have considered prior to hearing it put to Mr. Morrow, but I... So where do you draw the line? [00:29:54] Speaker 00: I don't know that there is a line, Your Honor. [00:29:55] Speaker 03: I do think that this is a statute by statute question based on the intent behind... Why isn't the line, whether the statute explicitly references either Chapter 75 or removal procedures and the like, and one that is more general? [00:30:21] Speaker 00: Is the line, so you're suggesting that the removal language is a prerequisite as? [00:30:30] Speaker 03: Well, I think given that Congress enacted a very broad statute in the due process amendments, and without distinction between accepted by statute, accepted by OPM, accepted by the president, they didn't draw a line between those classes. [00:30:48] Speaker 03: And so if you're asking us to draw a line based on our case law, [00:30:51] Speaker 03: it seems the line we've drawn is we can glean some intent from Congress's actions in those specific statutes by referencing removal procedures or Chapter 75, but absent that, we can't glean any intent at all that Congress intended those people to still be carved out from the due process amendments, except for those they specifically did. [00:31:13] Speaker 00: I know I'm out of time, but if I could just briefly respond. [00:31:17] Speaker 00: I don't believe that's a line that has been drawn in these cases so far, and in fact I would [00:31:20] Speaker 00: point back to Bennett where there was removal language, but the court was concerned that the statutes relevant to that language were not referenced and did look to the legislative history to discern the plain language of that statute. [00:31:33] Speaker 04: That last sentence made absolutely no sense to me as a legal point, but we'll just skip over that for now. [00:31:40] Speaker 04: Why don't you tell me why this case isn't like Briggs? [00:31:44] Speaker 04: Because I'm just having trouble distinguishing it. [00:31:46] Speaker 04: You want me to go statute by statute? [00:31:49] Speaker 04: But then you want me to figure out what the statute means based on the legislative history? [00:31:52] Speaker 04: Is that what you're saying? [00:31:55] Speaker 00: Because I'll never do that. [00:31:56] Speaker 00: Understood, Your Honor. [00:31:58] Speaker 04: In Briggs, Your Honor... The plain language of the statute is the plain language of the statute. [00:32:02] Speaker 00: Yes, Your Honor. [00:32:02] Speaker 04: And that seems to be what we looked at in Bennett and then what we looked at in Briggs. [00:32:06] Speaker 04: Yes. [00:32:06] Speaker 04: In both cases, like I'm looking at Briggs and I don't see a single site anywhere to the legislative history of Briggs, what I see instead is a clear [00:32:18] Speaker 04: walk-through discussion of the language of the statute and the OPM regulations. [00:32:22] Speaker 04: Am I missing something? [00:32:24] Speaker 00: No, Your Honor. [00:32:25] Speaker 04: So how does this case differ from Briggs and the way that the court walked through the statute and said Section 783 does not remove the executive director's position from the ambit of Title V's Procedural Protections for removal. [00:32:42] Speaker 04: And so it walked through the language of the statute and what it found it's holding is [00:32:48] Speaker 04: that while it exempts from certain procedural protections in certain circumstances, it doesn't exempt it, quote, for removal. [00:33:00] Speaker 00: Yes, Your Honor, and I think the distinction between the statute here and the statute in Briggs is that the statute in Briggs did specify certain portions of the civil service laws. [00:33:11] Speaker 00: It specified the Title V provisions governing appointments. [00:33:16] Speaker 00: specified certain portions of Chapter 51, Chapter 53. [00:33:19] Speaker 03: That's because Briggs is a post-CSRA statute. [00:33:22] Speaker 03: So you can look at it. [00:33:23] Speaker 03: It was aware of that. [00:33:24] Speaker 03: The problem we have in this case is we have a statute that dates back to like 1940s or 50s. [00:33:30] Speaker 03: And so when the language of it was enacted, nobody had the CSRA on in mind. [00:33:34] Speaker 03: So we can't actually determine whether that language meant to exclude them from the CSRA or not at all because it wasn't there. [00:33:44] Speaker 03: What we have to determine is what the due process amendments did with regards to those people in that category. [00:33:53] Speaker 03: And there's nothing in the due process amendments that doesn't give appeal rights to people just accepted from the competitive service as they were in this statute. [00:34:05] Speaker 00: There is nothing in the due process amendments that [00:34:08] Speaker 04: But I'd like to actually have a chance to answer my question. [00:34:10] Speaker 04: I'm sorry. [00:34:11] Speaker 04: No, you don't have to apologize. [00:34:14] Speaker 04: If you wouldn't mind going back, I'd like you to address why Briggs is different. [00:34:20] Speaker 04: You started to address it but got cut off and didn't get to finish. [00:34:23] Speaker 04: So I'd really like to hear the answer to my question. [00:34:26] Speaker 00: Briefly, the distinction between Briggs and Section 209F is that Briggs enumerated very specific portions of the civil service laws. [00:34:36] Speaker 00: whereas our statute contains a generalized exemption. [00:34:42] Speaker 04: And the court noted what you're referring to in Briggs, but it also went on to say, however, Briggs doesn't specify anything with regard to removal. [00:34:53] Speaker 04: And each of the sections that it enumerates in the statute are with regard to the may appoint provision, right? [00:34:59] Speaker 04: And each of those statutory sections, if you look at them, go to what is necessary to be performed in the process of appointing. [00:35:07] Speaker 04: Don't they? [00:35:09] Speaker 00: Your Honor, I would separate the may appoint language from the provisions of Title V governing appointments. [00:35:17] Speaker 00: The may appoint language doesn't refer specifically to the appointment provisions, otherwise that would be redundant. [00:35:23] Speaker 00: It says it may appoint without regard to the appointment provisions, without regard to these other chapters of that law. [00:35:31] Speaker 00: And I think it's the provisions governing Title V appointments language [00:35:37] Speaker 00: that is the language that is contrasted to the general language we have in this case. [00:35:41] Speaker 04: But all of that language in both instances in Briggs is going to appointments. [00:35:48] Speaker 04: And didn't we in Briggs draw a line between sections which pertain to appointments and sections which pertain to removal and removal rights? [00:35:58] Speaker 04: I mean, that's the way I read Briggs. [00:35:59] Speaker 04: That seems to be the critical thing for you to have to get around. [00:36:03] Speaker 00: Your Honor, my reading of Briggs was not that there was a line drawn between appointment provisions and other provisions, but rather that there were specific provisions, some of which were appointment provisions or other provisions governing the initiating aspects of a position. [00:36:22] Speaker 04: But that's the critical part for me, which is Briggs seems only to be, that statute at the time, seemed only to be about [00:36:31] Speaker 04: the initiating employment provisions. [00:36:34] Speaker 04: And that seems to be what our court held when it said, and we hold. [00:36:38] Speaker 04: that these provisions don't pertain to removals. [00:36:41] Speaker 04: It seemed to draw a line, and that line seems to be similar to the statutory language we have in this case, which again only speaks to appointment. [00:36:51] Speaker 04: And I just don't see any evidence in the statute that it was meant to go broader than appointing process provisions. [00:36:59] Speaker 00: And Your Honor, I don't disagree that the enumerated provisions in Briggs are relevant to appointments and don't [00:37:07] Speaker 00: don't reference removal procedures. [00:37:09] Speaker 00: But again, I would note that those references are not found in our statute. [00:37:15] Speaker 04: And the language that I think is... When you say those references, the may appoint language... The may appoint language is. [00:37:21] Speaker 04: ...is also found in our statute. [00:37:22] Speaker 00: It is, yeah. [00:37:22] Speaker 04: It just doesn't then cite any of the specific provisions, which as Judge Hughes pointed out, didn't actually exist at the time this statute was created, so it couldn't have. [00:37:32] Speaker 04: Yes, you're right. [00:37:33] Speaker 04: It still, though, seems to be cabined into an analysis of what may or may not happen in the appointment process as opposed to the removal process, doesn't it? [00:37:44] Speaker 00: Your Honor, and this is getting into a new topic that I know I'm well over my time for, but I think this goes back to what I believe was well expressed in the MSPB's brief, that the may-appoint language that we're talking about here, separate from references to the appointing provisions of Title V, [00:38:01] Speaker 00: When we were talking about may appoint, we were talking about creating this appointment position. [00:38:05] Speaker 00: We refer to appointments as a year-long appointment, as an indefinite appointment. [00:38:10] Speaker 00: The reference to appointment, or to may appoint, is a broader reading rather than the moment of appointment to the employment relationship. [00:38:19] Speaker 00: And again, I'm not trying to get us into a new topic. [00:38:22] Speaker 00: OK, that's fine. [00:38:23] Speaker 04: Any further questions? [00:38:26] Speaker 00: Thank you very much. [00:38:27] Speaker 04: You have some rebuttal time left, Mr. [00:38:29] Speaker 04: Chousy, please proceed. [00:38:31] Speaker 01: Yes, I just have some brief points. [00:38:34] Speaker 01: I think with respect to your question, Judge Hughes, the specific provisions of the appointing statute in Briggs were chapter 51 and subchapter 2 of chapter 53. [00:38:47] Speaker 01: Chapter 51 is a compensation statute. [00:38:49] Speaker 01: So the position did not have to comply with the compensation provisions. [00:38:56] Speaker 01: And chapter 53 deals with the senior executive service. [00:39:00] Speaker 01: None of those have anything to do with removal. [00:39:02] Speaker 01: And I believe that was precisely the point that the court made in Bennett when Ms. [00:39:08] Speaker 01: Bennett tried to throw herself under the umbrella of Briggs and the court said, no, your statute refers to removal and Ms. [00:39:15] Speaker 01: Briggs did not. [00:39:17] Speaker 01: I also want to... I know that the court is familiar with the legislative history that I included, but there's one provision of the legislative history [00:39:29] Speaker 01: that I just want to read as I take up the remainder of my time. [00:39:34] Speaker 01: The key to the distinction between those to whom appeal rights are extended and those to whom such rights are not extended is the expectation of continuing employment with the federal government. [00:39:47] Speaker 01: Lawyers, teachers, chaplains, and scientists [00:39:51] Speaker 01: have expectations. [00:39:53] Speaker 01: Presidential appointees and temporary workers do not. [00:39:55] Speaker 04: Your time is up. [00:39:57] Speaker 01: That was page 18 of my addendum. [00:39:59] Speaker 04: Thank you. [00:40:01] Speaker 04: Thank both counsel for their arguments. [00:40:03] Speaker 04: The case is taken under submission. [00:40:06] Speaker 01: All rise.