[00:00:43] Speaker 00:
The next case is number 15-30-42, McMillan against the Department of Justice.

[00:00:54] Speaker 04:
Good morning.

[00:00:54] Speaker 04:
Happy New Year, Your Honor.

[00:00:55] Speaker 00:
Mr. Carter, when you're ready.

[00:00:58] Speaker 04:
On behalf of Colonel McMillan, may it please the Court, by failing to properly allocate the burden of proof in this case, the MSPB wound up putting the burden all on my client, Colonel McMillan.

[00:01:13] Speaker 04:
That failure infected every factual finding by the administrative judge.

[00:01:19] Speaker 01:
Well, you don't dispute that there was some requirement for you to show motivation.

[00:01:26] Speaker 01:
So you had to show that it was motivated by the military duties.

[00:01:30] Speaker 01:
That's correct.

[00:01:31] Speaker 01:
And isn't it at least the contention on the other side is that that's

[00:01:38] Speaker 01:
all that was happening, that the board was simply saying that you hadn't met that part of the burden.

[00:01:44] Speaker 04:
They were saying that, but by not properly analyzing and allocating the burden, Judge Newman's opinion in Sheehan is clear.

[00:01:54] Speaker 04:
There is the initial burden.

[00:01:57] Speaker 04:
We don't have the plaintiff, the petitioner in this case, doesn't have a heavy burden to show motivating factor.

[00:02:05] Speaker 04:
Then the burden shifts.

[00:02:07] Speaker 04:
to the employer, the agency here, to determine and to prove.

[00:02:13] Speaker 04:
That's the key.

[00:02:14] Speaker 04:
They have to prove that they would have taken this decision to deny him his tour extension.

[00:02:19] Speaker 04:
Where is the proof that, for example, everybody who sends a test email to their boss gets their tour denied?

[00:02:28] Speaker 04:
No such proof.

[00:02:29] Speaker 04:
Where's the proof that the folks who are on military duty

[00:02:37] Speaker 04:
are being treated the same as the non-military.

[00:02:42] Speaker 04:
Indeed, the proof was on our side.

[00:02:45] Speaker 04:
We showed that Mr. Walsh, who by everyone's admission, failed to follow chain of command.

[00:02:52] Speaker 04:
He was the one that walked down to Patrick Stemkamp's office and got the permission to use this device, this report.

[00:02:59] Speaker 04:
He was the one who was the intelligence officer.

[00:03:01] Speaker 04:
My client didn't even know what the FSR was or its import.

[00:03:05] Speaker 04:
And they're already on the way down to Mr. Stencamp's office.

[00:03:09] Speaker 01:
In trying to determine what were your exercise of your military duties and what were the exercise of the civilian duties, certainly there was an obligation to engage in military activity.

[00:03:24] Speaker 01:
And there was an assignment to analyze the DEA's removal from Bolivia.

[00:03:32] Speaker 01:
But there was no obligation to use the DEA report for that purpose, was there?

[00:03:38] Speaker 04:
Quite so.

[00:03:38] Speaker 04:
And so my client has a colleague who's in the office who was in Bolivia when they got kicked out.

[00:03:47] Speaker 04:
And so he goes down the hall using open door policy and goes down and says, hey, Mike, is there anything that you'd recommend?

[00:03:54] Speaker 04:
I've got this military assignment.

[00:03:56] Speaker 04:
Is there anything you'd recommend I read up on?

[00:03:58] Speaker 04:
And he says, oh, yeah, there's the FSR.

[00:04:01] Speaker 04:
Let's go down to Pat and get approval for you to use it.

[00:04:04] Speaker 04:
So he goes down the hall and takes him almost by the hand and then gets approval from the third level supervisor.

[00:04:13] Speaker 04:
There's no discussion of this chain of command or anything like that.

[00:04:17] Speaker 04:
And indeed, this is Walsh's report.

[00:04:20] Speaker 04:
This is Walsh's bailiwick.

[00:04:22] Speaker 04:
He's an intelligence officer.

[00:04:24] Speaker 04:
He knows what is compartmentalized and so forth.

[00:04:27] Speaker 04:
And so he's the one who needs to follow chain of command.

[00:04:30] Speaker 04:
he doesn't get discipline, he gets his tour renewed, and he's non-military.

[00:04:36] Speaker 04:
All of this spirals out of control when my client goes out on military service, this is undisputed, goes out on military service and has a email exchange with his boss trying to sort of defend himself.

[00:04:51] Speaker 04:
Now, I think we can all agree that the mode of communication of email

[00:04:58] Speaker 04:
is not ideal and it doesn't allow for tone, it doesn't allow for a lot of things, but remember my client is serving in the military while stationed in Lima, Peru.

[00:05:10] Speaker 04:
He's a weekend warrior, but he can't go up to Miami every weekend to go do his military service.

[00:05:17] Speaker 04:
He has to do it in large chunks as he did here.

[00:05:22] Speaker 04:
So he

[00:05:23] Speaker 04:
He's off on military duty.

[00:05:25] Speaker 04:
And sure enough, he got the permission from the third level supervisor.

[00:05:29] Speaker 04:
And he goes off to do his military service.

[00:05:32] Speaker 04:
The Army's so impressed with his work, they want it to be more.

[00:05:36] Speaker 04:
And then what's critical here is that now Mr. Stenkamp, who, by the way, factually, he and Walsh were formerly in Bolivia, those guys now realize that this military assignment

[00:05:52] Speaker 04:
is becoming more, and they want to shut it down.

[00:05:55] Speaker 04:
They have a change of heart, and they bring up this idea of, well, you haven't followed your chain of command.

[00:06:01] Speaker 04:
Well, my client comes back.

[00:06:04] Speaker 04:
He is appropriately apologetic.

[00:06:09] Speaker 04:
He follows orders.

[00:06:10] Speaker 04:
There's no suggestion he didn't follow orders.

[00:06:12] Speaker 04:
And then he's all of a sudden disciplined.

[00:06:16] Speaker 04:
Let's clarify this chain of command.

[00:06:20] Speaker 04:
OK.

[00:06:22] Speaker 01:
What if we agree with you that your initial burden was met, that there wasn't an appropriate shift to the government to prove, and we can debate what the standard is, but assume it's preponderant, that in fact they would have taken this action, but for, they would have taken it anyway.

[00:06:47] Speaker 01:
What would we have to do to remand for purposes of a reanalysis under the appropriate Sheehan burden shifting?

[00:06:55] Speaker 04:
I don't think so, because here you have nothing.

[00:06:58] Speaker 04:
You have, there are two pieces of evidence in the record that you already have.

[00:07:04] Speaker 04:
You have the interrogatory answer that says Colonel Sheehan broke no rule or regulation at all.

[00:07:14] Speaker 04:
And you also have, and this is key,

[00:07:17] Speaker 04:
You have the, I believe it's called the DEA 460, Form 460.

[00:07:21] Speaker 04:
This is the form that sets out a DEA agent's performance for the prior period.

[00:07:30] Speaker 04:
That form says that he significantly exceeds expectations.

[00:07:34] Speaker 04:
And there is no way for the government to now come in and say, oh, well, you didn't, as they did in the hearing, oh, well, you didn't hit certain metrics, you didn't have confidential informants, none of that

[00:07:45] Speaker 04:
is at all in the official form of his performance.

[00:07:50] Speaker 04:
And so if the government is to prove something, they've got to tilt the scales.

[00:07:55] Speaker 04:
But there's nothing on their side.

[00:07:57] Speaker 04:
Where's the evidence of we treat, we have people applying for tours all over the country, all over the world, in fact.

[00:08:05] Speaker 04:
Where's the evidence that says when somebody is not outstanding, they're not rated outstanding, well then we don't,

[00:08:14] Speaker 04:
extend their tour.

[00:08:16] Speaker 04:
Where's the evidence that says that we had five people transferring into Lima who were Spanish speakers, and we needed to get rid of a couple Spanish speakers?

[00:08:26] Speaker 04:
There's no evidence of any of that.

[00:08:29] Speaker 04:
And they simply don't have it.

[00:08:30] Speaker 01:
So to answer your- What about the evidence of the emails?

[00:08:34] Speaker 01:
Can't they say that the tone is inappropriate?

[00:08:38] Speaker 01:
I mean, I understand it's not the military, but it is still a law enforcement organization.

[00:08:45] Speaker 04:
I understand that.

[00:08:47] Speaker 04:
But what I think is that that decision that that, first of all, we have a line drawing problem.

[00:08:55] Speaker 04:
What is an inappropriate email enough to satisfy the government's burden here?

[00:09:02] Speaker 04:
But in addition, I think the other problem that we have is there isn't anything more.

[00:09:11] Speaker 04:
There isn't anything more, and that is clearly

[00:09:14] Speaker 04:
His military service, he's in Florida with the Army when he sends the email.

[00:09:22] Speaker 04:
And when the MSPB, you know, seizes on the fact that he wrote, you know, his sign line says, you know, DEA agent, well, okay.

[00:09:29] Speaker 04:
But my point is that our reservists are in two capacities all the time.

[00:09:36] Speaker 04:
They're working for their civilian employer and they're working for their, they're working for the military.

[00:09:41] Speaker 04:
And here, it's most definitely about

[00:09:44] Speaker 04:
The stuff of the test email is about his military service, his military assignment, the fact that he'd gotten permission to use this resource, now being told not to.

[00:09:59] Speaker 04:
And if I may, just to defend my client's reaction, you know, the military, they teach military officers to question decisions once.

[00:10:11] Speaker 04:
You question it once, you ask the superior officer,

[00:10:14] Speaker 04:
Is this what you want to do?

[00:10:16] Speaker 04:
Yes?

[00:10:16] Speaker 04:
I would recommend not.

[00:10:18] Speaker 01:
But do you call the superior officer's decision illogical?

[00:10:22] Speaker 04:
Well, I think that might have been a poor choice of words.

[00:10:25] Speaker 04:
If my client had to do it over again, I think he would agree.

[00:10:27] Speaker 04:
But the point is, he was making his point one time, then he was shut down, and he followed orders.

[00:10:35] Speaker 04:
There's no suggestion that he didn't.

[00:10:38] Speaker 04:
And again, we have the, if I can just continue with the factual narrative,

[00:10:43] Speaker 03:
Can I ask you, I guess, what feels like it's somewhere near the heart of what the board is thinking?

[00:10:52] Speaker 03:
Is it right to interpret USERRA so that we're here dealing with forms of personnel decision that are not, you know, adverse actions under the 75-12 regime?

[00:11:10] Speaker 03:
So in the ordinary course, an agency,

[00:11:13] Speaker 03:
as doesn't have to worry too much about how those decisions are being made, putting aside prohibited personnel actions and whistle-blower and stuff like that.

[00:11:26] Speaker 03:
And what seems to be the concern here is that when an employee who's also a reservist is performing work while on reserve,

[00:11:42] Speaker 03:
that there's suddenly a kind of license to engage in, let's just call it misbehavior, use inappropriate language, go outside the chain of command, that suddenly now his actual employing agency has to walk on eggshells about questioning.

[00:12:02] Speaker 03:
How do you deal with that worry that I think is overhanging this case?

[00:12:08] Speaker 04:
I think that when the burden, analytically, when the burden shifts to the agency to prove that it would have taken the decision anyway, the adverse decision, that that's where the administrative judge and then the board can weigh that and decide whether or not there's been proof.

[00:12:30] Speaker 03:
But suddenly now the agency has to keep records of how it deals with other employees who do similar things.

[00:12:38] Speaker 03:
outside the 75-12 regime, that's a burden and presumably a significant disincentive to making an otherwise OK decision to, OK, you're not staying in Lima, which you wouldn't be able to challenge otherwise.

[00:12:56] Speaker 03:
Because the proof difficulty is just too darn hard.

[00:12:59] Speaker 04:
You know, I don't think that this is any different than what every other employer constantly does with its employees, when employees

[00:13:08] Speaker 04:
engage in protected activity, they go on leave under the Family Medical Leave Act.

[00:13:12] Speaker 04:
When they engage in protected activity on behalf of protected classes or on behalf of themselves.

[00:13:19] Speaker 04:
This is the kind of record keeping that employers would do anyway.

[00:13:23] Speaker 04:
And so if your honor's concern is that employers of military folks would be on eggshells for bombs being lobbed at them while the person is away on

[00:13:38] Speaker 04:
military service, I think that there is an element that all wraps up in the agency being able to meet its burden of proof.

[00:13:47] Speaker 04:
Remember, this is a burden that they bear.

[00:13:51] Speaker 04:
By design, remember, USERA was enacted in order to make this harder to discipline and terminate service members on account of their service.

[00:14:06] Speaker 04:
So once

[00:14:07] Speaker 04:
the burden has shifted analytically, then this is where the employer would have to prove.

[00:14:15] Speaker 01:
Isn't the difficulty in this case that in the normal case, there's a clear line of demarcation between what you're doing for your military duty and what you're doing for your civilian service.

[00:14:28] Speaker 01:
Here, by virtue of the military assignment, it gets merged to some extent.

[00:14:33] Speaker 01:
True.

[00:14:34] Speaker 01:
So normally, you wouldn't have

[00:14:36] Speaker 01:
of DEA agent analyzing DEA activity as part of their military assignment.

[00:14:43] Speaker 04:
I agree.

[00:14:44] Speaker 01:
So how do we deal with the fact that there is this merging of the two?

[00:14:50] Speaker 04:
I think of an example.

[00:14:51] Speaker 04:
I try to think of hypotheticals.

[00:14:54] Speaker 04:
But a uniformed service member who's in the logistics business and works for FedEx and then goes off to their job at the Army or the Air Force, let us say,

[00:15:06] Speaker 04:
And they say, hey, how do you guys do it at FedEx that you pack all the planes with all that stuff?

[00:15:10] Speaker 04:
And he says, oh, well, we do this, this, and this at FedEx.

[00:15:13] Speaker 04:
And the reason why we have a reservist military is we want them to bring to the military the best practices and all the stuff that they get in their civilian employment and bring it into the military context here.

[00:15:33] Speaker 04:
He's a military intelligence officer, and they had to come up with an assignment for him to do.

[00:15:39] Speaker 04:
And they gave him this assignment.

[00:15:41] Speaker 04:
He can't refuse his military orders.

[00:15:44] Speaker 04:
He can't.

[00:15:45] Speaker 04:
So he has to comply with his military orders, and this is what he did.

[00:15:51] Speaker 00:
I notice I'm not sure if this is my rebuttal time or my... We'll save you some rebuttal time.

[00:15:56] Speaker 04:
I appreciate that.

[00:15:58] Speaker 04:
But I'll come back to that question.

[00:16:00] Speaker 00:
Okay.

[00:16:01] Speaker 00:
Let's hear from Ms.

[00:16:02] Speaker 00:
Ely.

[00:16:09] Speaker 02:
May I please the court?

[00:16:10] Speaker 02:
MSPB correctly applied this court's burden-shifting framework established in the Sheehan case, and substantial evidence supports the board's determination that Mr. McMillan failed to meet his burden of proving, by preponderance of the evidence, that his military service was a motivating factor in the denial of his tour extension.

[00:16:29] Speaker 02:
Can I just ask?

[00:16:30] Speaker 03:
At least two of the grounds that are asserted to be the grounds for the denial of tour have to do with the way in which he carried out his military obligation.

[00:16:45] Speaker 03:
How does that not conclusively resolve in his favor the first step?

[00:16:52] Speaker 02:
Actually, what Mr. McMillan must prove is that military service was a motivating factor here.

[00:16:59] Speaker 02:
At most, it's incidental.

[00:17:02] Speaker 02:
Mr. McMillan offered no proof that, for example, he would have been treated better had he been working on a personal project, authoring a book on DAA policy.

[00:17:14] Speaker 02:
Or had he been authoring a paper for an institution of higher learning because he was taking a night school class?

[00:17:20] Speaker 01:
But under Sheehan, the court recognized that it's virtually impossible to establish the motivation, since personal motivations are rarely expressed.

[00:17:31] Speaker 01:
But the court set out things that you could do to circumstantially establish the motivation.

[00:17:37] Speaker 01:
And three of the four factors that Sheehan spelled out are present here.

[00:17:42] Speaker 01:
One, the proximity of time.

[00:17:44] Speaker 01:
to the inconsistencies between the proper reason and the other actions of the employer.

[00:17:49] Speaker 01:
I mean, those were very clearly established.

[00:17:53] Speaker 01:
And the fourth, the disparate treatment of certain employees compared to other employees.

[00:17:57] Speaker 01:
I mean, he established all of those things.

[00:17:59] Speaker 01:
Why isn't that enough?

[00:18:01] Speaker 02:
Because, Your Honor, Sheehan made clear, and I know that there's a dispute between the parties as to whether this is dictic.

[00:18:07] Speaker 02:
Sheehan explicitly stated that in determining whether the employee has proven that his protected status was part of the motivation for the agency's conduct,

[00:18:14] Speaker 02:
all record evidence may be considered.

[00:18:17] Speaker 02:
And tellingly, too, in Sheehan, the court made clear that it understood that the board had not segregated.

[00:18:28] Speaker 02:
It says, although the MSPB did not separate the discrimination determinations into discrete parts, the first for which the claimant bears the burden of proof, and the second for where the employer bears the burden of proof, its decision as a whole followed the strictures

[00:18:42] Speaker 02:
of the framework developed by the NLRB in the court.

[00:18:45] Speaker 02:
That means that Sheehan did not establish that if you tick off three or four factors, because it's certainly a flexible inquiry, then automatically the complainant has met its burden of proof.

[00:18:59] Speaker 02:
Instead, all record evidence

[00:19:00] Speaker 02:
has to be considered.

[00:19:01] Speaker 01:
And that is consistent with the notion of preponderance.

[00:19:03] Speaker 01:
Let's look at some of the record evidence then.

[00:19:05] Speaker 01:
I mean, you've got an argument.

[00:19:06] Speaker 01:
One of the arguments is that it didn't follow his chain of command.

[00:19:09] Speaker 01:
Stenkamp didn't even know what the chain of command was.

[00:19:12] Speaker 01:
He thought Walsh was in his direct chain of command.

[00:19:14] Speaker 01:
So how can the chain of command have been so important when the head guy doesn't even know who's in his own chain of command?

[00:19:21] Speaker 02:
Well, I think it's important for I actually, Your Honor,

[00:19:25] Speaker 02:
I'm not familiar with the record site that you appear to have in mind with Stencamp saying he did not know his own chain of command.

[00:19:34] Speaker 02:
Mr. Stencamp certainly testified... He said he thought Walsh was in his direction.

[00:19:38] Speaker 02:
He thought Walsh reported directly to him.

[00:19:41] Speaker 02:
Right, and Walsh actually did have an intermediary.

[00:19:44] Speaker 02:
One of the things that Mr. Stencamp did also testify to was the fact that he assumed by virtue of the fact

[00:19:51] Speaker 02:
that Mr. McMillan was coming to him with this request for information, that it had been fully vetted.

[00:19:56] Speaker 01:
He said he didn't even remember McMillan coming to him.

[00:20:00] Speaker 01:
He only remembered Walsh coming to him.

[00:20:03] Speaker 01:
He said he didn't even remember McMillan being in the room.

[00:20:09] Speaker 02:
I think that is inconsistent with my memory of the record.

[00:20:15] Speaker 01:
And there was testimony from everyone, including Walsh, that up until that point in time, there had been an open door policy in the office, in a very small office.

[00:20:26] Speaker 02:
Well, that's absolutely true.

[00:20:27] Speaker 02:
However, there was consistent testimony from Mr. Walsh and others, including Ms.

[00:20:30] Speaker 02:
Jimenez, who didn't have a dog in the fight, that, indeed, when you were trying to use, it was something from Ms.

[00:20:37] Speaker 02:
Jimenez, who stated on Joint Appendix 740 to 41,

[00:20:43] Speaker 02:
You wouldn't just choose to disseminate or attempt to disseminate information outside of the agency before you ran it through your chain of command.

[00:20:51] Speaker 02:
And that's certainly the distinction that was at work here.

[00:20:53] Speaker 02:
And it's also borne out by the contemporaneous correspondence.

[00:20:58] Speaker 01:
Well, there's no written correspondence about the chain of command in ordering him to follow chain of command until after all these events occur.

[00:21:06] Speaker 02:
That's not true, Your Honor.

[00:21:07] Speaker 02:
Specifically, the email that

[00:21:11] Speaker 02:
At the time that this is going on, on page 920, one of the things that Mr. Walsh advises Mr. McMillan of, as of July 21, 2010, he states to Mr. McMillan, you really need to contact WAN before finalizing it.

[00:21:27] Speaker 02:
I think the latest consensus among upper management is the report should not be attributable to DEA at all.

[00:21:32] Speaker 02:
And WAN is a reference to Juan Arreviega, who is, and I may be mispronouncing it, who is Mr. McMillan's immediate

[00:21:41] Speaker 02:
In addition, when the issue of Mr. McMillan's participation in the telecom, where he says, I'm going to be representing DEA, this is in the record at page 961, Mr. Stencamp's immediate reaction on hearing about this is to state, Pete, no, no, no.

[00:22:04] Speaker 02:
First, did you run this through your chain?

[00:22:06] Speaker 02:
The answer is no, you did not.

[00:22:09] Speaker 01:
when he was seeking approval.

[00:22:11] Speaker 01:
No one asked him if he ran it through his chain.

[00:22:12] Speaker 01:
Walsh knew that he had come directly to him.

[00:22:14] Speaker 01:
Walsh didn't say, you've got to run it through your chain.

[00:22:17] Speaker 01:
Walsh didn't run it through his chain.

[00:22:20] Speaker 01:
And Walsh never got punished for either of those acts.

[00:22:24] Speaker 01:
The chain of command only becomes important once they get nervous about the fact that they've authorized him to use it.

[00:22:30] Speaker 02:
Your Honor, respectfully, I believe that's incorrect.

[00:22:33] Speaker 02:
Mr. Walsh actually explained that there's a difference between someone coming to him for internal DAA work and external work, and that given that McMillan's work was for external purposes, not for military purposes, just that it was for external purposes, they were required to fully vet it.

[00:22:50] Speaker 02:
through the chain of command.

[00:22:51] Speaker 02:
But Walsh didn't ask him about that and Walsh didn't vet it through his chain of command.

[00:22:56] Speaker 02:
But the onus is not really on Walsh.

[00:23:00] Speaker 02:
The real question here is the question of release of the information outside the DEA.

[00:23:05] Speaker 02:
That onus falls so... Which had already been authorized.

[00:23:08] Speaker 01:
And there have been edits back and forth.

[00:23:10] Speaker 01:
StemCamp had even been involved in the edits.

[00:23:13] Speaker 01:
I mean, when you've got the head of the office

[00:23:16] Speaker 01:
editing your report and knowing what you're using the information for, I mean, how is it that you're supposed to think you've got to go to somebody else?

[00:23:25] Speaker 02:
Well, Your Honor, the board found it actually on the point of it being already authorized.

[00:23:31] Speaker 02:
One of the premises on which that authorization was based was a misapprehension by Mr. Sincant that authorization had already been given.

[00:23:38] Speaker 02:
And the board actually made a specific finding that the

[00:23:45] Speaker 02:
that the board credited Mr. Stencamp's testimony that he had assumed that the record site is Joint Appendix 229 and Joint Appendix 233.

[00:24:06] Speaker 02:
Mr. Stencamp stated that he didn't initially question whether Mr. McMillan went through his chain of command, because he assumed that he had.

[00:24:13] Speaker 02:
Because since the Academy,

[00:24:15] Speaker 02:
individuals in these kinds of positions had been instructed that chain of command presents safety issues, issues with consistency of message and the like.

[00:24:27] Speaker 02:
So the board actually indicated that he found Mr. Stencamp, the board found Stencamp's explanation, which is of course based also on a credibility determination, which is virtually unreviewable according to Khan.

[00:24:42] Speaker 02:
The board stated,

[00:24:44] Speaker 02:
I found Stencamp's explanation of why he did not immediately question whether McMillan had gone through his chain of command reasonable and credible.

[00:24:54] Speaker 02:
Stencamp now retired, testified confidently, as did Walsh, Stefik, Araviaga, and Jimenez.

[00:25:01] Speaker 02:
Their testimony was consistent and credible.

[00:25:03] Speaker 02:
This is one of the credibility findings that went to the board's decision as to its finding that Mr. McMillan was required to follow the chain of command and in fact had not.

[00:25:15] Speaker 02:
So under Sheehan, which indicates that all record evidence has to be considered, this is evidence supporting the board's finding that there was a, that Mr. McMillan had not met his burden of proof certainly.

[00:25:28] Speaker 02:
Because there is some implicit weighing that has to go on.

[00:25:32] Speaker 02:
In Sheehan, the board makes clear that there is some weighing that inherently goes on.

[00:25:39] Speaker 01:
If we disagree with you on whether or not his initial showing was sufficient to shift the burden, would we have to remand for the board to assess whether or not the government met its burden, or would we be able to determine based on this record alone?

[00:25:59] Speaker 02:
The court would be able to determine based on this record alone, because contrary to what I believe Mr. Ullman's counsel suggested, there is an abundance of evidence that they would have taken this action, irrespective of military.

[00:26:17] Speaker 03:
That's not the standard.

[00:26:18] Speaker 03:
The question is whether the board, looking at the evidence,

[00:26:22] Speaker 03:
did actually find that the government established that it would have taken the same action.

[00:26:31] Speaker 03:
There could be enough evidence for it to find that, enough evidence for it not to find that.

[00:26:36] Speaker 03:
But the question initially of what it found would be.

[00:26:41] Speaker 02:
Your Honor, you're correct.

[00:26:42] Speaker 02:
The board did not find that.

[00:26:44] Speaker 03:
And our- I don't think you've contended that that is the only possible finding on the record.

[00:26:54] Speaker 03:
That is, that the board would commit error, be reversed by us, if it found that the government did not establish that it would have taken the same action.

[00:27:06] Speaker 02:
It would be hard to conceive of a scenario in which the board could back away from credibility determinations associated with Araviaga, Stefik, and Stencant, all testifying consistently that the decision... But the credibility determination was, oddly, was premised only on

[00:27:23] Speaker 01:
They seemed to be telling the truth.

[00:27:25] Speaker 01:
There's lots of factors.

[00:27:26] Speaker 01:
When you instruct a jury as to how you make credibility determination, one of them has to be, is it supported by other evidence of record or contradicted by other evidence of record?

[00:27:36] Speaker 01:
Are there inconsistencies with respect to how they treated the same circumstances?

[00:27:41] Speaker 01:
You go through a whole series of analyses to make a credibility determination.

[00:27:44] Speaker 01:
This was simply a credibility determination that seemed

[00:27:48] Speaker 01:
almost too cute.

[00:27:50] Speaker 01:
In other words, I call this credibility because I looked at them and they seemed to be saying nice things.

[00:27:54] Speaker 02:
Your Honor, that is not... Your Honor, the government would disagree with that, specifically because of the documentary, some of the documentary evidence that we've discussed this morning.

[00:28:05] Speaker 02:
The immediate reaction being of Stencamp being with... could be well confronted with this request to represent DEA at a military phone call saying, no, no, no, you need to... did you first discuss this with your chain... did you run this through your chain of command?

[00:28:18] Speaker 02:
The answer is no, you did not.

[00:28:20] Speaker 02:
That is consistent.

[00:28:21] Speaker 03:
Can I ask, what are the best citations, not just that Stencamp and others were credible, but that they were credible in testifying, or that they did testify we would have taken this action even if he had been

[00:28:42] Speaker 03:
a little bit impolite or testy, I think was the word used before, but not on behalf of his military security.

[00:28:53] Speaker 02:
OK.

[00:28:53] Speaker 02:
Well, I'll focus on the testimony of Araviyaga, Stefik and Stenkamp, because they are the individuals involved in the decision not to renew the tour request.

[00:29:13] Speaker 02:
I think that one of the things that all attested to, Stefic indicates that the email in which... The citations are more helpful than your reading.

[00:29:24] Speaker 03:
Okay.

[00:29:24] Speaker 02:
Thank you.

[00:29:26] Speaker 02:
I will... Actually, if you want to walk through the whole thing with specific to chain of command... Let me just be sure we're on the same page.

[00:29:39] Speaker 03:
What I'm interested in is

[00:29:40] Speaker 03:
not that they cared about the chain of command, but the specific proposition, we would have denied the tour regardless.

[00:29:50] Speaker 02:
That goes primarily to a discussion of, well, the problem is that there is an inextricable linkage between the rudeness that they all comment on, which is apparent from the face of the email,

[00:30:03] Speaker 02:
Determination this you could judge the level of rudeness a lot of different ways of that Especially since the rudeness is going both ways looks like it started Mr.. Stencat testified joint appendix 815 that even if he had followed the chain of command Even if mr. McMillan had followed the chain of command he would not have renewed mr. McMillan's tour request

[00:30:28] Speaker 02:
because Mr. McMillan's investigations, quote, did not appear to be investigations that merited a GS-13.

[00:30:34] Speaker 02:
Mr. Stenkup goes on, I didn't think he meshed with the team notion that I was trying to cultivate there in Lima.

[00:30:40] Speaker 02:
He was a lone wolf, liked to do his own thing.

[00:30:42] Speaker 01:
Then why were all his reviews, at minimum, outstanding, or exceptional?

[00:30:48] Speaker 02:
The board found that Mr. Araviaga credibly testified, for example, that you could be

[00:30:56] Speaker 02:
a very good agent and still, I guess, basically, Mr. Araviaga was asked this question.

[00:31:06] Speaker 02:
It said, joint appendix 500 to 01.

[00:31:08] Speaker 02:
One could be an exceptionally good agent, sees millions of kilos of cocaine, put 120 people in jail.

[00:31:13] Speaker 02:
He goes on to list several things.

[00:31:15] Speaker 02:
And they're disrespectful.

[00:31:17] Speaker 02:
They're not following the chain of command.

[00:31:18] Speaker 02:
Oh, they formed outstanding in that sense, but they didn't go along with management.

[00:31:21] Speaker 02:
So I think those are the factors.

[00:31:23] Speaker 02:
So I don't think there's anything in the DA policy that says you have to have a certain rating that you're entitled to a tour renewal.

[00:31:29] Speaker 02:
Certainly, that was known in this office, that tour renewals were not automatic.

[00:31:32] Speaker 01:
So that testimony is inconsistent with Stenkamp's testimony.

[00:31:35] Speaker 01:
Stenkamp says, I really based it on the fact that he didn't meet benchmarks.

[00:31:39] Speaker 01:
And his immediate supervisor concedes that there are no benchmarks.

[00:31:44] Speaker 02:
Actually, respectfully, Your Honor, Mr. Stenkamp testified that he

[00:31:50] Speaker 02:
He would not have renewed the tour request because Mr. McMillan's investigations did not appear to be investigations that merited a GS-13.

[00:32:00] Speaker 02:
I realize that there's a lot of testimony.

[00:32:03] Speaker 02:
There were three individuals involved in this decision to deny the tour request working together.

[00:32:08] Speaker 02:
So certainly there was the disrespect.

[00:32:10] Speaker 02:
There was the failure to follow chain of command.

[00:32:12] Speaker 02:
And then there was a protracted discussion of performance matrix.

[00:32:18] Speaker 02:
But in terms of there not being anything in writing as far as performance matrix are concerned, one of the things that Mr. Araviaga testified to was saying, so this is an exchange that occurs on pages 499 to 500 of the Joint Appendix.

[00:32:32] Speaker 02:
Mr. Araviaga says, well, what specifics are you talking about?

[00:32:37] Speaker 02:
There's zero arrests, zero indictments, zero money seizures, speaking to Mr. McMillan's specific performance.

[00:32:45] Speaker 01:
But his performance review, the one right before that, they went into great detail about all the things he'd accomplished and what a good agent he was.

[00:32:55] Speaker 01:
Why do those fall off?

[00:32:57] Speaker 02:
Well, I mean... Those rate justified an exceptional rating.

[00:33:03] Speaker 02:
This is the more contemporaneous.

[00:33:05] Speaker 02:
I mean, the reality is that this is the more contemporaneous rating and taking into account the... And for the tour request, obviously, rating is not all that matters.

[00:33:13] Speaker 02:
That's the testimony.

[00:33:15] Speaker 02:
But also there's the record evidence of the difficulties he started to have with management.

[00:33:20] Speaker 02:
The point here is that you have an employee that refuses to accept the decisions of management regarding the use of the agency's own material.

[00:33:30] Speaker 01:
What about the argument on the other side is that he did ultimately.

[00:33:33] Speaker 01:
He questioned it once, and they said no.

[00:33:36] Speaker 01:
And he said, OK.

[00:33:37] Speaker 01:
He did not keep coming back.

[00:33:39] Speaker 01:
He didn't do it without authorization.

[00:33:42] Speaker 01:
All he did was after being

[00:33:45] Speaker 01:
taken all the way down the road with the edits being done by Stencamp himself and changes being made to his report.

[00:33:52] Speaker 01:
He's told at the last minute he can't use his report.

[00:33:55] Speaker 01:
And he says, this doesn't make sense to me.

[00:33:57] Speaker 01:
You say you can't do it, so he doesn't do it.

[00:34:02] Speaker 01:
How is that not following orders?

[00:34:06] Speaker 02:
The issue was that he was not initially seeking to go through the proper channels to release information outside the DEA in an environment where the testimony universally established that that was important for safety and for consistency of message.

[00:34:24] Speaker 02:
And as far as he didn't keep coming, well, he certainly made his one response count.

[00:34:32] Speaker 02:
He went on for several pages.

[00:34:34] Speaker 02:
criticizing, implicitly criticizing, his third-level supervisor's Bolivia policy, stating, well, I will participate in the FETC as an Army officer, where my service is appreciated.

[00:34:49] Speaker 02:
He opens the email saying, sir, for your knowledge, I am a qualified field-grade military intelligence officer, and goes on for pages.

[00:34:56] Speaker 02:
The one time where you're saying he questioned authority, it certainly was

[00:35:03] Speaker 02:
quite a lot.

[00:35:04] Speaker 02:
It certainly was a zinger of the type that one would not ordinarily expect to see addressed to superiors in that context.

[00:35:13] Speaker 02:
And in addition, it's part and parcel of a larger pattern where he does internally question Mr. Stenkamp's decision with Walsh and does criticize it as illogical.

[00:35:26] Speaker 02:
This is an employee that- He doesn't say, but I mean that's-

[00:35:29] Speaker 01:
He doesn't call Stencamp illogical.

[00:35:33] Speaker 01:
He says, you're requiring me to go back and do additional research.

[00:35:37] Speaker 02:
That would be illogical.

[00:35:39] Speaker 02:
Well, basically, that's a response to an email from Mr. Walsh that says, Pete, sorry, but regional director Stencamp wants all references to FSR to be removed from the report.

[00:35:51] Speaker 02:
And what follows is an immediate complaint.

[00:35:54] Speaker 02:
And he does say that's illogical, but that is a direct criticism, particularly given the prior email of Mr. Stencamp's decision to exclude.

[00:36:02] Speaker 00:
Okay.

[00:36:03] Speaker 00:
I think we've exhausted the issue.

[00:36:06] Speaker 02:
Thank you, Your Honor.

[00:36:06] Speaker 02:
For all the reasons we've stated today and set forth in our brief, respectfully request that the court affirm the decision of MSPB.

[00:36:13] Speaker 00:
Thank you, Ms.

[00:36:14] Speaker 00:
Haley.

[00:36:15] Speaker 00:
Mr. Carter.

[00:36:16] Speaker 04:
Thank you, Your Honor.

[00:36:18] Speaker 04:
To answer Judge O'Malley's question about remand, I do think that the record

[00:36:23] Speaker 04:
is there is enough here for the court to decide that the government could not carry its burden.

[00:36:31] Speaker 04:
Why?

[00:36:32] Speaker 04:
Because if the government were to now come up with something else, this would be what the Supreme Court has said in Reeves and other cases is dissembling.

[00:36:39] Speaker 04:
It's a false reason now.

[00:36:42] Speaker 04:
It's different than what was given before.

[00:36:45] Speaker 01:
How do you get around the credibility determinations?

[00:36:48] Speaker 04:
The credibility determinations, as I argued before, are infected with the

[00:36:53] Speaker 04:
all of the failure to shift the burden analytically.

[00:36:56] Speaker 04:
Everything that we're talking about, the email at issue, the defending after the edits that your honor pointed out, all of that was, his assignment is now kaput, and he's got to start all over again.

[00:37:12] Speaker 04:
He's giving it one last ditch effort.

[00:37:14] Speaker 04:
And this is all while he's in Florida via email defending what

[00:37:22] Speaker 04:
was his role in doing this and why it would be a good idea.

[00:37:26] Speaker 04:
It's actually, I think, what we want our DEA agents to do, not to, of course, insult anyone, but to stand up for themselves and to say where there's an opportunity.

[00:37:39] Speaker 04:
That's what it was.

[00:37:40] Speaker 04:
It was, Mr. Stenkamp, you're missing a good opportunity.

[00:37:44] Speaker 04:
I'm well positioned here to help with this.

[00:37:48] Speaker 04:
Mr. Stenkamp didn't want to take him up on that.

[00:37:50] Speaker 04:
Mr. Stenkamp, as your honor has pointed out, didn't know, didn't even remember all of this had happened.

[00:37:55] Speaker 04:
And why?

[00:37:56] Speaker 04:
Because as your honor pointed out, this is a small office.

[00:37:59] Speaker 04:
Walsh took him by the hand.

[00:38:01] Speaker 04:
And please, if for no other reason, remember this.

[00:38:05] Speaker 04:
The dissemination of DEA stuff.

[00:38:14] Speaker 04:
The lawyers in this case are handicapped because we're not

[00:38:17] Speaker 04:
cleared, so we don't know what the clearance was.

[00:38:20] Speaker 04:
We don't know the substance of what was at issue here.

[00:38:24] Speaker 04:
But the fact is that the military intelligence officer, Walsh, he's the one whose job it is to know whether it's being disseminated or what.

[00:38:37] Speaker 04:
When McMillan goes down the hall and says to Walsh, I'd like to know about what kind of materials I should use for this army assignment,

[00:38:47] Speaker 04:
buddy, colleague, friend, and he says, oh, well, there's this FSR.

[00:38:52] Speaker 04:
Walsh is the one who has to know that would be giving it outside DEA.

[00:38:57] Speaker 04:
Walsh is the one who has to know that rule.

[00:38:58] Speaker 04:
Walsh is the one to know if there's a chain of command rule to be involved here.

[00:39:03] Speaker 04:
Walsh is the one to observe it.

[00:39:05] Speaker 04:
And it is the height of hypocrisy, I think, for the agency to come and say that it was a burden on McMillan, and he should have known this from the get-go,

[00:39:15] Speaker 04:
And that's not something, yes, he knows about chain of command when we're talking about people with guns drawn.

[00:39:21] Speaker 04:
But here, we're talking about a military intelligence assignment that is within the government.

[00:39:27] Speaker 04:
So it's just not appropriate.

[00:39:29] Speaker 04:
I notice I'm out of time.

[00:39:30] Speaker 04:
I submit on the papers.

[00:39:32] Speaker 04:
And thank you, Your Honor, for the opportunity to argue.

[00:39:34] Speaker 00:
Thank you.

[00:39:35] Speaker 00:
Thank you both.

[00:39:35] Speaker 00:
The case is open in this submission.

[00:39:38] Speaker 00:
That concludes our arguments for this morning.

[00:39:43] Speaker 04:
All rise.

[00:39:46] Speaker 04:
The Honorable Court is adjourned until tomorrow morning at 10 o'clock a.m.