[00:00:00] Speaker 01:
some of the treasury.

[00:00:45] Speaker 01:
Proceed.

[00:00:46] Speaker 03:
May it please the court.

[00:00:47] Speaker 03:
Under this court's precedent, the failure to consider a significant mitigating circumstance is an abuse of discretion.

[00:00:54] Speaker 03:
Here, the board failed to consider three significant mitigating circumstances.

[00:00:59] Speaker 03:
First, the board failed to consider the adequacy of an alternative of a 60-day suspension.

[00:01:06] Speaker 03:
Second, the board failed to consider the history of Mr. Newsom's accusers having harassed him.

[00:01:12] Speaker 03:
And third, the board failed to consider

[00:01:15] Speaker 03:
Mr. Newsom's demonstrated potential for rehabilitation.

[00:01:19] Speaker 04:
Is it your position that if there's ever any lesser penalty proposed that the decision maker is stuck with that?

[00:01:29] Speaker 03:
No, that is not our position.

[00:01:31] Speaker 03:
Our position is if there is a lesser penalty proposed, then the board and the agency should

[00:01:37] Speaker 03:
discuss the adequacy of that lesser alternative and whether it would be, in the facts of this case, adequate or inadequate.

[00:01:46] Speaker 04:
But isn't it true that in the hierarchy of punishment, that beyond 30 days suspension, it usually is contemplated that beyond that, termination would be the next step?

[00:01:59] Speaker 03:
Actually, Your Honor, I don't think that's the case here.

[00:02:01] Speaker 03:
We've noted several cases on page 9 of our reply.

[00:02:05] Speaker 03:
wherein penalties greater than 30 days were accepted by the board and by the agency penalties of 60 days, 90 days, 120 days.

[00:02:16] Speaker 03:
And so, indeed in this very case, the agency itself at some point thought a 60-day suspension was an adequate penalty and there's a concession here by the agency representative that somebody in agency management thought that a 60-day suspension was sufficient.

[00:02:34] Speaker 01:
But along the lines of Judge O'Malley's question, what I'm having a little trouble understanding is that the deciding official on the board did explain that Mr. Newsom was only temporarily deterred from prior problems by

[00:02:54] Speaker 01:
the suspensions he had previously received and they explained that's why they were terminating him because it didn't seem as though he was deterred.

[00:03:05] Speaker 01:
So why isn't that satisfy the need?

[00:03:10] Speaker 01:
Because your complaint is they didn't consider it.

[00:03:12] Speaker 01:
You're not arguing that they considered it and came to the wrong conclusion.

[00:03:16] Speaker 01:
Your argument is they didn't consider it, but why doesn't that demonstrate that they, in fact, did?

[00:03:22] Speaker 03:
Well, I think there's two difficulties with that.

[00:03:25] Speaker 03:
First is that that testimony was all proffered during the hearing that did not make part of the agency's decision.

[00:03:32] Speaker 03:
So that would be a post hoc rationalization of the agency's decision.

[00:03:38] Speaker 03:
And the second difficulty is it's inconsistent with the deciding official's own testimony wherein she stated, when asked,

[00:03:45] Speaker 03:
Did you consider alternative sanctions?

[00:03:47] Speaker 03:
Quote, I did not.

[00:03:48] Speaker 03:
And so there's an inconsistency.

[00:03:50] Speaker 01:
But she said, I did not because he had not previously been deterred.

[00:03:55] Speaker 01:
Isn't that what she said?

[00:03:56] Speaker 01:
Didn't she say that prior periods of time disciplining him, that the timeouts he previously received weren't long enough?

[00:04:05] Speaker 01:
Or they were not long enough.

[00:04:07] Speaker 01:
That's your argument.

[00:04:07] Speaker 01:
But they were.

[00:04:07] Speaker 01:
But they could have been longer, and it would have worked.

[00:04:09] Speaker 01:
But she said that they didn't work.

[00:04:11] Speaker 01:
to deter him from misconduct.

[00:04:14] Speaker 03:
So in the first instance, when she was first asked, she said she did not.

[00:04:16] Speaker 03:
And then in later testimony, when pressed, she did start explaining, oh, it's because of he was not deterred.

[00:04:25] Speaker 03:
But I think it's important here also to recognize that even the board itself said she wrote what she wrote.

[00:04:32] Speaker 03:
And to look indeed at the decisions, I think if Your Honors would refer in the joint appendix to, for example,

[00:04:42] Speaker 03:
page 8359.

[00:04:43] Speaker 03:
This is the proposed suspension.

[00:04:49] Speaker 03:
This is the first instance of the agency proposing a suspension.

[00:04:54] Speaker 03:
And if you look on page 359, it says, adequacy of alternative sanctions.

[00:04:58] Speaker 03:
And here it says, you have received prior warnings and or disciplinary actions for similar misconduct.

[00:05:04] Speaker 03:
These prior warnings and or disciplinary actions have only temporarily deterred your inappropriate actions.

[00:05:10] Speaker 03:
So this is the very decision that found a 60-day suspension adequate and sufficient.

[00:05:17] Speaker 03:
If you turn then to A355, here's the same official issuing a proposed removal.

[00:05:25] Speaker 03:
And if you look under the adequacy of alternative sanctions, you will note that it's verbatim the same language that you have received prior warnings and or disciplinary actions for similar misconduct, et cetera.

[00:05:36] Speaker 01:
I don't understand what that is meant to demonstrate.

[00:05:39] Speaker 03:
It's meant to demonstrate that.

[00:05:40] Speaker 03:
The same analysis that found a proposed suspension.

[00:05:45] Speaker 01:
She could have gone with the 60-day suspension.

[00:05:48] Speaker 01:
But she changed her mind and went with a removal.

[00:05:52] Speaker 01:
And I have to give enormous, overwhelming deference.

[00:05:55] Speaker 01:
So clearly, she considered this issue.

[00:05:57] Speaker 01:
It's not a matter of her considering it.

[00:05:59] Speaker 01:
It's upon first

[00:06:00] Speaker 01:
Initial impression, she thought a 60-day suspension.

[00:06:03] Speaker 01:
And then later impression, that same evidence, she thought supported a termination.

[00:06:09] Speaker 01:
And I have to review the decision of whether or not it supports a termination with so much deference.

[00:06:15] Speaker 01:
It's crazy in this case.

[00:06:16] Speaker 01:
So how do I jump from giving her all that deference to the fact that she thought the same rationale could have supported 60 days means it can't possibly support termination?

[00:06:27] Speaker 03:
Well, I think for two reasons.

[00:06:28] Speaker 03:
First, there's no discussion in any subsequent agency decision of the 60-day suspension.

[00:06:35] Speaker 02:
Is your view basically, if there's some action that's then canceled and replaced, that prior action is some kind of presumptive view of what the penalty should be, and the agency then has to explain why that first proposal wasn't good enough?

[00:06:50] Speaker 03:
I wouldn't say necessarily that it's presumptive.

[00:06:52] Speaker 03:
I would say that it is an alternative and under the 12th Douglas.

[00:06:56] Speaker 02:
I mean, I don't understand why we would even look at that, that first proposal, because what's happened is they've changed their mind and all that they have to do is explain on the second proposal that they've considered the Douglas factors and that they viewed them all properly.

[00:07:11] Speaker 03:
And that's the point that Your Honor was trying to make before, that if you look at the analysis under adequacy of alternative sanctions, their justification, which, by the way, does not reference the sanctions.

[00:07:21] Speaker 02:
Well, this is where I think you get into trouble, though, because let's just assume that prior proposal is off the book.

[00:07:28] Speaker 02:
Then we're not even considering that.

[00:07:30] Speaker 02:
Then why isn't the final decision sufficient?

[00:07:37] Speaker 03:
Well, I think in this case, I think it is highly material.

[00:07:40] Speaker 03:
And this is a very unique factual circumstance, because the prior proposal was on the book, that there was somebody that thought it was sufficient.

[00:07:46] Speaker 03:
So I think this case sets a lot of other cases apart.

[00:07:50] Speaker 03:
In fact, the government is not able to find or cite to any case where this is happening.

[00:07:55] Speaker 02:
So let me just ask you hypothetically, if that prior proposal that was rescinded wasn't on the table, would you even be here?

[00:08:02] Speaker 02:
Well, there are other- Wouldn't the removal be appropriate, given that it was his fifth defense, I think?

[00:08:09] Speaker 03:
I think that under those circumstances, the agency would still have to consider alternatives.

[00:08:14] Speaker 03:
And if it was found, yes indeed, you did consider the range of alternatives, and yes.

[00:08:18] Speaker 02:
But doesn't the decision reflect that they considered alternatives?

[00:08:22] Speaker 03:
Well, under this facts scenario, no.

[00:08:24] Speaker 03:
Under a hypothetical scenario, possibly.

[00:08:28] Speaker ?:
OK.

[00:08:29] Speaker 02:
But under this scenario, you have, it's a very unique.

[00:08:32] Speaker 02:
How do you, I still don't get at how you don't think they considered that 60 day removal since they clearly knew about it and rescinded it and did a new proposal.

[00:08:41] Speaker 02:
I mean, isn't it implicit that they thought the 60 day wasn't sufficient and wouldn't be a good enough deterrent and that no deterrent would be available, so removal was the only option now?

[00:08:51] Speaker 03:
Well, I think there's two issues there, right?

[00:08:55] Speaker 03:
We're making a lot of implicit assumptions about what the agency did.

[00:08:59] Speaker 03:
And all of the record evidence suggests, in fact, the agency's own testimony, when first asked if she considered alternatives, she said she did not.

[00:09:07] Speaker 03:
So the testimony says no.

[00:09:10] Speaker 03:
You have a paragraph that is regurgitated through all of the decisions.

[00:09:14] Speaker 03:
It is verbatim identical.

[00:09:16] Speaker 03:
So it cannot be said that the same paragraph that supported the suspension now all of a sudden does not support the suspension.

[00:09:21] Speaker 03:
It's the same exact words.

[00:09:24] Speaker 01:
Where is the testimony wherein she said she didn't consider any other alternatives?

[00:09:28] Speaker 03:
That testimony is found at A435.

[00:09:38] Speaker 03:
And it's on lines.

[00:09:40] Speaker 03:
If you start at line four, it says question.

[00:09:43] Speaker 03:
OK.

[00:09:44] Speaker 03:
And you did consider whether there were any kind of alternative sanctions that might have been applied here.

[00:09:49] Speaker 03:
Seven, answer, I did not.

[00:09:51] Speaker 03:
Then she continues.

[00:09:53] Speaker 03:
Next sentence.

[00:09:54] Speaker 03:
The penalty generally goes up to a 30-day suspension to removal.

[00:09:59] Speaker 03:
After removal, I've never seen a suspension post for more than 30 days.

[00:10:03] Speaker 03:
So she categorically did not consider anything beyond a 30-day suspension, notwithstanding the fact that a 60-day suspension was on the record.

[00:10:14] Speaker 03:
In addition to the 60-day suspension, there were several other issues that were not considered.

[00:10:20] Speaker 03:
For example, Mr. Newsom's accusers had a history of harassing him.

[00:10:26] Speaker 03:
And in fact, this testimony was proffered by Ms.

[00:10:28] Speaker 03:
Tita Greyer.

[00:10:30] Speaker 03:
And she testified that Ms.

[00:10:31] Speaker 03:
Kinchin, Ms.

[00:10:32] Speaker 03:
Walton, and Ms.

[00:10:33] Speaker 03:
Turner would all make fun of Mr. Newsom.

[00:10:35] Speaker 03:
They would yell across the cubicles about him that he had no friends.

[00:10:40] Speaker 03:
And these facts, there was no disputing of these facts.

[00:10:43] Speaker 03:
at the hearing.

[00:10:45] Speaker 04:
But even if we accept the proposition that that is true, that doesn't change the fact that he engaged in the conduct that he was being disciplined for.

[00:10:59] Speaker 03:
That's correct.

[00:10:59] Speaker 03:
It's a significant mitigating circumstance.

[00:11:02] Speaker 03:
So it's something else beyond the conduct or potentially involving the conduct that could explain why the conduct may have occurred or some other alternative.

[00:11:10] Speaker 02:
But the board specifically considered that.

[00:11:12] Speaker 02:
Is it the fact that he was provoked doesn't change the fact that he shouldn't have committed this conduct, and he has no rehabilitative potential?

[00:11:22] Speaker 03:
Well, I would disagree.

[00:11:23] Speaker 03:
I think the board did consider the provocation, which occurred immediately prior to the alleged incident, and that there was a longstanding issue.

[00:11:36] Speaker 02:
So you're saying they considered the provocation, but not the longstanding

[00:11:39] Speaker 02:
I mean, you're cutting it pretty finely there.

[00:11:42] Speaker 02:
I mean, that seems to me like opinion writing correction, not actual error.

[00:11:47] Speaker 03:
Well, I would say that there's no discussion of any of these facts.

[00:11:51] Speaker 03:
There's no discussion of them taunting him.

[00:11:53] Speaker 03:
There's no discussion of him making fun or that he had no friends.

[00:11:56] Speaker 02:
Isn't that all implicitly included in provocation?

[00:11:59] Speaker 03:
I would say no, because the word provocation implies closeness in time.

[00:12:03] Speaker 03:
It applies immediately.

[00:12:05] Speaker 02:
I mean, couldn't a decade-long, you know,

[00:12:09] Speaker 02:
disagreement between these employees in a tense working atmosphere provokes somebody into something.

[00:12:15] Speaker 03:
It could, but because the Douglas Factor actually separately delineates provocation from harassment here, we have a situation where this clearly falls under the harassment rubric.

[00:12:24] Speaker 03:
I can see I'm into my time.

[00:12:28] Speaker 01:
OK.

[00:12:28] Speaker 01:
Let's hear from the government.

[00:12:30] Speaker 00:
Thank you, Your Honor.

[00:12:32] Speaker 01:
How do I say your last name?

[00:12:33] Speaker 01:
Majeris.

[00:12:34] Speaker 01:
Majeris.

[00:12:35] Speaker 00:
Everyone else pronounces it.

[00:12:39] Speaker 00:
May it please the court.

[00:12:41] Speaker 00:
We ask that this court affirm the decision of the Merit Systems Protection Board as to the penalty of removal here as being within the tolerable limits of reasonableness as this court has held.

[00:12:54] Speaker 02:
Do we know why the 60-day suspension was revoked and the removal was replaced?

[00:12:58] Speaker 00:
Yeah, so we actually, excuse me, we have a record within the joint appendix of what happened.

[00:13:03] Speaker 00:
So here's the sequence.

[00:13:05] Speaker 00:
There was a proposed notice of 60-day suspension issued on May 5, 2014.

[00:13:09] Speaker 00:
That was at page A141.

[00:13:12] Speaker 00:
The agency then, on August 13, 2014, issued a letter saying that this proposal was being withdrawn.

[00:13:18] Speaker 00:
So it was cancelled and pulled back.

[00:13:20] Speaker 00:
And we know from testimony that took place after the hearing, it's at page A452 of the Joint Appendix.

[00:13:28] Speaker 00:
As counsel noted, Ms.

[00:13:30] Speaker 00:
Chapman, who was the deciding official in the case, noted she said she didn't consider alternative sanctions, but that's really not true.

[00:13:35] Speaker 00:
Because when you look at page A-452, she said, upon my review of the 60-day file when I received it, the proposed disciplinary action did not match our pattern of progressive discipline, nor was enough weight, in my opinion, given to the fact that he had an extensive prior disciplinary record.

[00:13:50] Speaker 04:
But it does seem that her

[00:13:52] Speaker 04:
primary motivation here was that it didn't match this supposedly written out progressive disciplinary statement.

[00:13:59] Speaker 04:
In other words, that you're supposed to go from 30 days to removal.

[00:14:03] Speaker 04:
And so she really didn't consider anything in between, did she?

[00:14:08] Speaker 00:
Well, I think based on her testimony, she did consider 60 days.

[00:14:12] Speaker 00:
But taking into account the prior disciplinary history, the fact that this was his fifth or sixth offense, depending on how you view the last chance agreement with his previous offense, that that was so far

[00:14:22] Speaker 00:
beyond what's listed in the IRS penalty guide.

[00:14:25] Speaker 00:
And this is provided within the record itself, specifically at page A291.

[00:14:31] Speaker 00:
And what's interesting is that it lists the appropriate penalty for the first through the third offenses.

[00:14:39] Speaker 00:
And for example, it includes under creating a disturbance, a workplace disruption, which is what we had here.

[00:14:44] Speaker 00:
It says for the third offense under just

[00:14:46] Speaker 00:
a minor or more limited disturbance that the range is a 15-day suspension to removal.

[00:14:51] Speaker 00:
Notably, though, it says that if there's been a significant disturbance, it only lists the appropriate penalty as removal.

[00:14:57] Speaker 00:
And that's only for the third offense.

[00:14:59] Speaker 00:
We're not talking about the third offense here.

[00:15:00] Speaker 00:
We're talking about the fifth, sixth offense.

[00:15:03] Speaker 00:
And I also think it's critical under these facts that the proposed notice of 60-day suspension was issued by Sharon Worthy, who was an operations manager in the compliance department.

[00:15:11] Speaker 00:
She's basically the more ground level person who's reviewing this.

[00:15:16] Speaker 00:
She then withdrew the 60-day suspension and issued the proposed removal notice.

[00:15:22] Speaker 00:
And then that provided an opportunity for Mr. Newsom to then challenge that, which he did.

[00:15:26] Speaker 00:
He filed an oral reply and was given the opportunity to explain why he didn't feel he should be removed.

[00:15:31] Speaker 00:
And the agency considered that and decided that removal, given his past disciplinary history, given the extreme nature, the seriousness of the misconduct that took place, the fact that the folks were subject to it felt threatened, that given that and given his extensive disciplinary history, the removal was the only thing that was appropriate.

[00:15:50] Speaker 00:
It was the only form of discipline that matched the progressive discipline as outlined in the IRS Penalty Act.

[00:15:56] Speaker 04:
But is that

[00:15:58] Speaker 04:
progressive discipline, is that a mandatory match?

[00:16:02] Speaker 04:
There were several cases cited in the reply brief that talked about higher levels of suspension.

[00:16:08] Speaker 00:
Right.

[00:16:08] Speaker 00:
I'd be happy to walk through those quickly, because we believe they're all distinguishable.

[00:16:12] Speaker 00:
So these are noted at page nine of the reply brief.

[00:16:15] Speaker 00:
The Wiggins case is distinct, because in that case, and these all dealt with different offenses.

[00:16:19] Speaker 00:
In some cases, arguably more egregious offenses.

[00:16:22] Speaker 00:
But there, he agreed to a 60-day suspension in lieu of removal.

[00:16:25] Speaker 00:
So we had essentially a settlement between the parties.

[00:16:28] Speaker 00:
So I don't see how that case is illuminating to the circumstances here.

[00:16:32] Speaker 00:
The Crawford and Gibbs cases are old.

[00:16:34] Speaker 00:
They're from 1993 and 1984.

[00:16:36] Speaker 00:
And so different standards apply to that case, as opposed to the IRS penalty guide applicable in this case 20 years later.

[00:16:44] Speaker 00:
And then the other case is cited.

[00:16:46] Speaker 00:
I would chance that's a 1990 case that concerned the Navy.

[00:16:49] Speaker 00:
So we're not talking about the IRS's penalty guide limitations.

[00:16:53] Speaker 04:
So is it your position that that penalty guide is mandatory, that they can't consider anything above a 30-day suspension short of removal?

[00:17:01] Speaker 04:
I'm sorry, I guess I don't understand.

[00:17:02] Speaker 04:
Are you saying that she wouldn't have been permitted to even consider a longer suspension than 30 days?

[00:17:10] Speaker 00:
No, that's not what I'm saying.

[00:17:11] Speaker 00:
And I don't think that the record indicates that it's absolutely mandatory.

[00:17:15] Speaker 00:
It is a guide.

[00:17:16] Speaker 00:
But of course, circumstances in every case are going to be different.

[00:17:21] Speaker 00:
For example, in this case, if we had a situation where the appellant had one offense, where he'd gotten three days off, being removed for a subsequent offense would seem to test the boundary of what is a reasonable penalty.

[00:17:34] Speaker 00:
But when you have the kind of disciplinary history that we had here, the penalty guide certainly suggests removal.

[00:17:41] Speaker 00:
But when you factor all the various Douglas factors into the equation,

[00:17:45] Speaker 00:
which we feel that the deciding official did, she reasonably concluded that removal was the only appropriate penalty.

[00:17:51] Speaker 00:
It certainly wasn't grossly disproportionate to the offense, given what happened.

[00:17:56] Speaker 04:
What about his argument that there was just a failure to consider, really, all the other circumstances?

[00:18:02] Speaker 04:
In other words, this was workplace where people weren't very nice to each other, period.

[00:18:07] Speaker 04:
And he was picked on just like he picked on them.

[00:18:10] Speaker 00:
And there's certainly a lot of testimony from the various parties.

[00:18:15] Speaker 00:
I think what's critical, of course, bearing in mind that credibility determinations are given a high level of deference, as Judge Moore noted.

[00:18:22] Speaker 00:
In this instance, you had testimony from witnesses that were on the agency's behalf and witnesses for Mr. Newsom.

[00:18:30] Speaker 00:
What's critical to note is Mr. Newsom never denied the conduct took place.

[00:18:34] Speaker 01:
He essentially tried to argue it was a polite exchange, but that doesn't... No, but I think that Judge O'Malley's question goes to whether or not there's a problem with the agency not considering the Douglas factor related to harassment and provocation properly.

[00:18:49] Speaker 01:
So that really... Where can I see in the board's decision that they clearly understood and took into account in their assessment of penalty potential harassment going on in the workplace?

[00:19:02] Speaker 00:
So I think this gets to Judge Hughes' distinction that it's really hard to draw a temporal line between provocation and harassment.

[00:19:08] Speaker 00:
What the board held was that we note that there was provocation.

[00:19:12] Speaker 01:
Where?

[00:19:13] Speaker 00:
If you can bear with me for one moment, I can point you to it.

[00:19:28] Speaker 00:
It's on page A14 of the record.

[00:19:33] Speaker 00:
And there may be other references to it, but this is the one that I recall.

[00:19:37] Speaker 00:
It says in the first full paragraph in A14, after considering the evidence, I find the appellant's misconduct was serious and will not displace management's responsibility in maintaining employee discipline and efficiency.

[00:19:49] Speaker 00:
The appellant's years of service and outstanding performance do not outweigh his prior discipline, which included a 30-day suspension.

[00:19:55] Speaker 00:
And then it talks about the employee's testimony.

[00:19:57] Speaker 00:
And then it says, the fact that he may have been provoked

[00:19:59] Speaker 00:
does not excuse his behavior and the fact that he had been suspended previously shows he has no rehabilitative potential.

[00:20:05] Speaker 00:
So what I think is critical to note is Mr. Newsom testified this was just a polite exchange.

[00:20:09] Speaker 00:
He had a very different recollection of what happened.

[00:20:12] Speaker 00:
But his own witnesses counteracted that.

[00:20:13] Speaker 01:
Well, he didn't say it was a polite exchange.

[00:20:15] Speaker 01:
He said that she said mean things to him.

[00:20:17] Speaker 01:
So he didn't, I mean, he said he was polite.

[00:20:20] Speaker 00:
Right.

[00:20:20] Speaker 01:
I don't think that he ever testified that she was polite.

[00:20:23] Speaker 00:
Right, right.

[00:20:24] Speaker 00:
But I guess the witnesses that testified on behalf of Mr. Newsom

[00:20:28] Speaker 00:
Testified it was a very loud exchange.

[00:20:30] Speaker 00:
It was something they were talking about days after the fact.

[00:20:32] Speaker 00:
And that, while I agree that Mr. Newsom didn't necessarily testify, it was just a quiet, quiet exchange, his story doesn't connect with what the fact that folks were talking about it the next day and the fact that, I mean, for example, one of his colleagues who was wearing headphones took them off because she could hear the yelling.

[00:20:51] Speaker 00:
It just doesn't seem to square up with Mr. Newsom's testimony.

[00:20:53] Speaker 01:
But aside from that... Maybe that was the woman's yelling.

[00:20:56] Speaker 00:
It very well could have been, but that's why the agency, you know, that's, I think, why the board has given so much discretion to weigh credibility.

[00:21:03] Speaker 00:
There's no question that the board took testimony from everyone who was involved and considered all the various perspectives and decided in the end that Ms.

[00:21:11] Speaker 00:
Kinchin, Ms.

[00:21:12] Speaker 00:
Turner, the folks, you know, on behalf of the agency had no reason to lie and that their stories were consistent and that a lot of Mr. Newsom's witnesses supported their story.

[00:21:22] Speaker 00:
And so you can certainly argue it either way, but I think that's why the discretion is accorded to the board to weigh those various credibility determinations.

[00:21:30] Speaker 00:
And I don't think there's a basis here at which to reverse that decision.

[00:21:35] Speaker 01:
Anything further?

[00:21:37] Speaker 00:
Do you have any further questions?

[00:21:38] Speaker 01:
Mr. Cooley, let me use the rebuttal time.

[00:21:51] Speaker 03:
I just want to make three quick points.

[00:21:54] Speaker 03:
First of all, my colleague here noted that there were a number of facts and circumstances that would have supported the original determination penalty.

[00:22:04] Speaker 03:
But I will note that all of those facts and circumstances, the removals and so forth, were all before the agency when it made its proposal for a 60-day suspension.

[00:22:12] Speaker 03:
There was no change in the facts and circumstances as between the suspension and the removal.

[00:22:18] Speaker 03:
Second of all, my friend mentioned the grossly disproportionate standard.

[00:22:23] Speaker 03:
I think it's important to note that there's two different types of cases here.

[00:22:28] Speaker 03:
You have the Van Fossen case and the Miguel case wherein this court actually puts its thumb on the scale, so to speak, given the severity of the facts.

[00:22:39] Speaker 03:
It found that the actual penalty was so disproportionate

[00:22:42] Speaker 03:
to the conduct that it found it grossly outweighed and remanded, vacated and remanded for imposition of a lesser penalty.

[00:22:52] Speaker 03:
Now contrast that, for example, with the Malloy case.

[00:22:56] Speaker 03:
In that case, the court found that there was failure to consider certain circumstances, but it simply was vacated and remanded and did not dictate that there would be an imposition of a lesser penalty.

[00:23:10] Speaker 03:
And so this court has the ability, if it still finds that the offense was so minor as to the penalty that the court can actually put its thumb on the scale, so to speak.

[00:23:21] Speaker 03:
But even if not, this court can still vacate and remand and request that the board conduct a proper Douglas analysis and consider the mitigating circumstances that in this case were not considered.

[00:23:32] Speaker 03:
And then finally, we'd like to note that we're not raising credibility issues.

[00:23:37] Speaker 03:
This appeal is not about credibility.

[00:23:39] Speaker 03:
We are not disputing credibility.

[00:23:41] Speaker 03:
It is all about the failure to consider significant mitigating circumstances.

[00:23:45] Speaker 03:
Any further questions?

[00:23:48] Speaker 01:
Thank you.

[00:23:49] Speaker 01:
Thank both counsel for their argument.

[00:23:50] Speaker 01:
The case is taken under submission.

[00:23:52] Speaker 01:
That concludes our arguments for today.