[00:00:00] Speaker 00:
Winger versus DHS.

[00:00:02] Speaker 02:
Mr. Friedman, whenever you're ready.

[00:00:10] Speaker 02:
Thank you.

[00:00:10] Speaker 02:
May it please the court?

[00:00:12] Speaker 02:
The fundamental issue in this case, which I believe is the case of first impression, is whether an individual who has decided to challenge his termination under the FLRA

[00:00:29] Speaker 02:
through the grievance arbitration process enjoys the same rights as any other federal employee in terms of acquiring information for the claims and defenses that he has.

[00:00:43] Speaker 02:
In this case, the appellant or the, I'm sorry, the petitioner in this case exercised his right to challenge his termination

[00:00:54] Speaker 02:
through the grievance process.

[00:00:56] Speaker 02:
The matter went through the various stages.

[00:00:59] Speaker 02:
The grievance process.

[00:01:00] Speaker 04:
Yes.

[00:01:01] Speaker 04:
Council, one of your complaints, one of the problems that you have is that the arbitrator did not allow discovery.

[00:01:10] Speaker 04:
That is correct.

[00:01:12] Speaker 04:
But the arbitration, the rules are set by the master agreement.

[00:01:18] Speaker 04:
There's these

[00:01:19] Speaker 04:
various laws and rules and regulations that apply to arbitrations, which you cite in your brief.

[00:01:27] Speaker 04:
But none of them require discovery.

[00:01:33] Speaker 02:
There is no language in the master agreement which specifically addresses discovery.

[00:01:43] Speaker 02:
That is not tantamount to stating

[00:01:47] Speaker 04:
that an individual... Okay, so now we have that, put that aside.

[00:01:51] Speaker 04:
What other legal authority do you have to cite to us that mandates or makes discovery compulsory in this type of an arbitration?

[00:02:01] Speaker 02:
It would be a deprivation of fundamental due process.

[00:02:05] Speaker 02:
If an individual, one should not engage in foreign forum shopping in order to choose the best avenue

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in which to challenge an action that has been taken against him.

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There is uniformity in federal law.

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And the court in Cornelius versus Nutt, I believe, stated that the arbitration process should be no different in terms of the substantive rights that an individual enjoys from the

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statutory process.

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In this case, the agency held all the cards.

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The agency was in possession of all of the information.

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The grievant in this case had nothing.

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And he had significant claims and defenses in this case.

[00:03:05] Speaker 03:
Mr. Freeman, did you seek information about any other comparators other than the two that

[00:03:14] Speaker 02:
this guy?

[00:03:16] Speaker 02:
No, I didn't.

[00:03:18] Speaker 02:
Of course, I didn't have an opportunity to.

[00:03:21] Speaker 02:
The agency filed a motion in eliminate, which the arbitrator granted.

[00:03:29] Speaker 02:
In relation to one of them?

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There were two comparators that the grievant identified specifically.

[00:03:43] Speaker 02:
But the agency's position, which was upheld by the arbitrator, was that there was no opportunity to engage in any discovery whatsoever.

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You wanted to go into the personnel files of the individual in question.

[00:04:01] Speaker 03:
What I'm asking you is, were there any other comparators available?

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Did, for example, the union identify any

[00:04:13] Speaker 03:
The two that you have, to me, look pretty far afield.

[00:04:20] Speaker 02:
The most relevant comparator was the highest law enforcement officer in the Federal Protective Service in Region 6, who had been given by a... You're not going to answer my question, is that right?

[00:04:42] Speaker 02:
My understanding is that the comparator was directly relevant for the reasons that the individuals who were involved in evaluating and assessing... Let me ask you a question so we can get back on point.

[00:05:01] Speaker 03:
Were there any other than the two about which you wish to speak?

[00:05:07] Speaker 03:
Were there any other comparators that were in the same position he was in?

[00:05:12] Speaker 03:
Somebody who made a misstatement of fact and was terminated for it.

[00:05:20] Speaker 03:
Full stop.

[00:05:22] Speaker 02:
The union did not seek any information other than the two individuals who they believed were comparators for the reason that the individuals who were involved

[00:05:34] Speaker 02:
in the termination of the grievance in this case, were the same individuals who were involved in effectuating a two or three day suspension by an individual who had given perjured testimony during.

[00:05:52] Speaker 03:
So I think you're answering my question by saying the union did not seek any other information other than those two.

[00:06:02] Speaker 02:
There was a point where we had requested initially information.

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The agency indicated that it was not supplying any information whatsoever relating to those individuals.

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And the assumption that the union had was that the agency was stating that it would not supply any information because it didn't believe it had an obligation.

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to supply any information in any area.

[00:06:35] Speaker 02:
So that question was never asked, is what you're telling me.

[00:06:42] Speaker 02:
That specific question was never asked because of the response the agency gave that it was not, it had no obligation to engage in discovery.

[00:06:55] Speaker 02:
I'm sorry, it had no obligation to respond to any discovery request.

[00:07:02] Speaker 00:
What is it you were trying to discover?

[00:07:04] Speaker 00:
I mean, you have this information in the record with regard to what happened to these two employees.

[00:07:09] Speaker 00:
You made your argument as to why that's relevant to your case.

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And the other side said, no, there's no relationship between the charges against your client for firearms problems and lack of candor and what happened in the other cases.

[00:07:26] Speaker 00:
What else were you seeking that could have changed the outcome or really had an appreciable effect?

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on what the conclusions drawn here by the arbitrator were?

[00:07:33] Speaker 02:
Well, what changed the outcome was that the arbitrator, under threat of closing the hearing, refused my efforts to question the individuals who were involved in the disciplining of Oblinger to show that these individuals were intimately involved and had control over the disciplining

[00:08:00] Speaker 02:
of another individual who had lied under oath, under penalty of perjury, and who had not been charged with lack of candor, and who had been charged with the offense of conduct unbecoming in order to show that the government had different criteria in terms of assessing whether certain conduct

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should fall within a specific charge or not, and also in the consistency of the penalty that had been imposed.

[00:08:39] Speaker 00:
But all of that information was out there, right?

[00:08:42] Speaker 00:
You used that.

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You made your argument.

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The other side made its argument.

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And the arbitrator drew his conclusions with regard to the differences and distinctions between your case and the charges in your case and the charges in the other case, right?

[00:08:56] Speaker 02:
My understanding was that the arbitrator did not permit me to explore anything.

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I was not permitted to even question witnesses on those aspects.

[00:09:08] Speaker 02:
And the key witnesses were Mr. Patterson and Mr. Klein.

[00:09:13] Speaker 04:
These were revealed on Judge Pro's questions.

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Mr. Olson's case involved a procurement fraud.

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Mr. Oppenheimer's case involved

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the theft of a sophisticated assault automatic weapon.

[00:09:31] Speaker 04:
I mean, doesn't that matter in this situation?

[00:09:37] Speaker 02:
The events are different, but the circumstances are dead on.

[00:09:43] Speaker 02:
The grieving in this case had his weapon stolen from his vehicle.

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He initially, when he reported it, had indicated that he had

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We've read the record.

[00:09:58] Speaker 02:
OK.

[00:09:59] Speaker 02:
In the Olson case, and then the grievant immediately recognized that his statement was inaccurate, and he gave a written statement that day, and he gave a written statement two weeks later, in which he was fully forthcoming.

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the regional director gave false statements under penalty of perjury during official investigations.

[00:10:34] Speaker 02:
And he continued to make the false statements.

[00:10:39] Speaker 02:
He had indicated that he had no knowledge.

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He had no relationship with the individual who had eventually been

[00:10:52] Speaker 02:
awarded a substantial contract.

[00:10:54] Speaker 02:
He also gave a statement, which was clearly false, that the successful bidder, who was his friend, did not prepare the statement of work.

[00:11:09] Speaker 02:
These were purely false.

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And he was charged with conduct unbecoming.

[00:11:15] Speaker 02:
He was not given a proposed removal action, and ultimately,

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he received a two-day suspension.

[00:11:22] Speaker 02:
So in terms of the actual lack of candor issue, one has to look at the specific actions.

[00:11:30] Speaker 02:
And what's equally important is how can someone develop a case in arbitration when that individual is prevented from obtaining information relating to his defenses?

[00:11:46] Speaker 02:
If the arbitration process,

[00:11:49] Speaker 02:
a bridges someone's rights as contrasted with an appeal to the Merit Systems Protection Board, there is a fundamental unfairness because an agency is only obligated to give information in order to support its position.

[00:12:10] Speaker 02:
It's not obligated to present exculpatory information

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And when witnesses are questioned, witnesses have memories of convenience, witnesses' memories fade, witnesses perhaps can give inaccurate testimony.

[00:12:33] Speaker 02:
And it's only through the agency's actual evidence, the email histories, that one can get to the truth.

[00:12:42] Speaker 02:
And if one can't get through the truth in an arbitration process by getting the fundamental information, which is in possession and control of the agency, not the grievant, then the grievant has been deprived of his fundamental right.

[00:13:01] Speaker 02:
It would be like having a congressional hearing where there are emails that should be produced and are not produced.

[00:13:09] Speaker 03:
How do you deal with the Wiseman meets Social Security Administration?

[00:13:12] Speaker 03:
I'm sorry.

[00:13:13] Speaker 03:
How do you deal with Wiseman and our holding there?

[00:13:20] Speaker 02:
I'm sorry.

[00:13:22] Speaker 02:
Could you direct me to... Do you want me to quote it for you?

[00:13:25] Speaker 03:
The only procedures an arbitrator must follow are those specified in the collective bargaining agreement in submission of the parties to the arbitrator or required by statute.

[00:13:35] Speaker 02:
And there are fundamental due process principles.

[00:13:40] Speaker 02:
And if one were to look at the collective bargaining agreement, and I believe I cited this in my brief, that both parties are required to adhere to the law legal principle.

[00:13:55] Speaker 03:
The JA20, the union's motion to produce documents, conceded that the master agreement doesn't address the issue of information request.

[00:14:05] Speaker 02:
I would submit that there is no fairness in an arbitration process dealing with the depravation of due process.

[00:14:17] Speaker 04:
If that's the case, why did you elect to arbitrate?

[00:14:22] Speaker 02:
I have never experienced having an arbitration hearing where an arbitrator has denied the union information.

[00:14:35] Speaker 02:
This is the first time.

[00:14:38] Speaker 04:
If existing legal authority is that, you're bound in arbitration by the master agreement.

[00:14:43] Speaker 04:
And you choose to arbitrate.

[00:14:45] Speaker 04:
Don't you look at the master agreement to see what you're gaining or what you've given up?

[00:14:49] Speaker 04:
Or would it be better to pursue your remedy in the courts?

[00:14:53] Speaker 02:
Absolutely.

[00:14:55] Speaker 02:
There's no conflict.

[00:14:56] Speaker 04:
This looks like a situation where your client's raised by his own petard.

[00:15:03] Speaker 02:
If it's the court's interpretation that a master agreement, which is silent on the discovery issue, is actually something that says that an arbitrator can deny an individual access to information on his defenses and his claims.

[00:15:24] Speaker 02:
Yes, that is correct.

[00:15:26] Speaker 02:
But there's nothing in the master agreement that addresses

[00:15:32] Speaker 02:
the discovery process.

[00:15:35] Speaker 03:
Were the two comparators that you see charged with the same misconduct?

[00:15:42] Speaker 02:
They were not, which is a significant argument that we raised.

[00:15:48] Speaker 02:
If someone commits an egregious act and the agency decides to treat that person differently by labeling that act in something which is minor,

[00:16:02] Speaker 02:
That is something that would show a disparity in judgment.

[00:16:06] Speaker 03:
There's a prior authority that says the charges have to be substantially similar in order to establish disparate penalties, right?

[00:16:16] Speaker 02:
My understanding of the law is that the court looks at the specific conduct of the individuals and not the labels that the agencies place on the conduct.

[00:16:31] Speaker 00:
You've exceeded your time.

[00:16:33] Speaker 00:
We still have two minutes of rebuttal.

[00:16:35] Speaker 00:
Let's hear from the government.

[00:16:36] Speaker 02:
Thank you.

[00:16:51] Speaker 01:
May I please record?

[00:16:52] Speaker 01:
Were there any other comparators available?

[00:16:56] Speaker 01:
There were other comparators available, Your Honor.

[00:16:58] Speaker 01:
The agency relied on other comparators.

[00:17:00] Speaker 01:
The union did not ask for other comparators or even what comparators the agency had relied upon.

[00:17:06] Speaker 01:
The Article III of the Collective Bargaining Agreement gives the right to information necessary for the representation of employees pursuing grievances.

[00:17:16] Speaker 01:
That is the avenue for getting information.

[00:17:19] Speaker 00:
Well, it's pretty broad, right?

[00:17:21] Speaker 01:
That's correct, Your Honor.

[00:17:22] Speaker 01:
It's broad and it will apply to any information that the grievance needs

[00:17:28] Speaker 01:
in pursuing his or her grievance.

[00:17:31] Speaker 00:
So was that what happened here?

[00:17:32] Speaker 00:
I mean, the arbitrator didn't blankly say you're getting no information.

[00:17:36] Speaker 00:
He just evaluated the request for information based on what he determined was the need?

[00:17:41] Speaker 01:
The union pursued this avenue and was denied by the... and pursued it specifically on information about Olson and Mathews.

[00:17:50] Speaker 01:
Again, the union did not ask about other comparators.

[00:17:54] Speaker 01:
And the agency said that that information is not relevant.

[00:17:57] Speaker 01:
It's not necessary

[00:17:59] Speaker 01:
for pursuing this grievance in the Uplinger case.

[00:18:02] Speaker 01:
You said the agency.

[00:18:03] Speaker 01:
You mean the arbitrator.

[00:18:04] Speaker 01:
The agency.

[00:18:04] Speaker 01:
Well, the arbitrator decided that since this is going under the grievance article 3, that he did not have the authority to look at that, that this would have to be another grievance.

[00:18:18] Speaker 04:
That he didn't have the authority to look at what?

[00:18:21] Speaker 01:
He didn't have the authority to grant discovery, because there's no discovery under

[00:18:26] Speaker 01:
the collective bargaining agreement.

[00:18:28] Speaker 04:
There's no prohibition against it.

[00:18:31] Speaker 01:
There's no prohibition.

[00:18:33] Speaker 04:
He could have.

[00:18:37] Speaker 04:
He's not prohibited from allowing discovery.

[00:18:40] Speaker 04:
I mean, there's no rules that allow it, but he's not prohibited from it.

[00:18:45] Speaker 01:
Well, there are two motions pending, Your Honor.

[00:18:47] Speaker 01:
One, a motion to eliminate to exclude the evidence of Olson and Matthews, and one, a motion to quash

[00:18:55] Speaker 01:
the subpoenas for information.

[00:18:57] Speaker 01:
And the arbitrator granted both.

[00:19:00] Speaker 01:
And so the arbitrator decided that both the evidence was not relevant and that he did not have the authority to grant the subpoenas.

[00:19:07] Speaker 04:
How do you know it's not relevant evidence if the evidence hasn't been taken?

[00:19:13] Speaker 01:
There's a lot of evidence in the public record.

[00:19:14] Speaker 01:
There's evidence in the JA.

[00:19:15] Speaker 01:
That evidence was before the arbitrator at that time.

[00:19:18] Speaker 01:
There's enough evidence in the public record to understand the conduct and, of course, the charges, most importantly.

[00:19:24] Speaker 01:
that were brought against Mr. Olson and no charges were actually brought against Mr. Matthews.

[00:19:28] Speaker 04:
There seems to be a fundamental unfairness in the arbitrator looking at evidence on the record and deciding on its own this is enough and not allowing someone who has chosen to take arbitration, arbitration route,

[00:19:45] Speaker 04:
to present the evidence that they feel is relevant to their case.

[00:19:50] Speaker 04:
Shouldn't the arbitrator, I mean, really be weighing both sides?

[00:19:54] Speaker 04:
Why is it just a one-sided weighing?

[00:19:57] Speaker 01:
Well, I think the issue here, Your Honor, is that this evidence is so outside of the relevancy of the grievance Mr. Wolflinger was bringing that, I mean, it could make the arbitration go on for an indefinite period to allow

[00:20:12] Speaker 01:
the many trials of other grievances to allow this type of clearly non-relevant evidence.

[00:20:19] Speaker 01:
And I want to remind the court of the context here.

[00:20:22] Speaker 01:
The comparator evidence is brought in to raise issues about the Douglas Factor, about the consistency of the penalty imposed for the same or similar offenses.

[00:20:32] Speaker 01:
So if we're not talking about evidence about someone who's charged of the same or similar offenses,

[00:20:38] Speaker 01:
We're not talking about this Douglas factor.

[00:20:40] Speaker 01:
It's not relevant.

[00:20:42] Speaker 00:
So what does this have anything to do with this legal proposition about what the authority of the arbitrator is?

[00:20:48] Speaker 00:
If your argument is that this evidence would never have been put on in any forum because no judge would have allowed it because it had no relevance of probative value.

[00:20:58] Speaker 00:
in terms of the charges, right?

[00:20:59] Speaker 01:
That's correct, Your Honor.

[00:21:00] Speaker 01:
This case, I mean, it's not close, if you will.

[00:21:03] Speaker 01:
It would have been the same result under the board.

[00:21:05] Speaker 01:
We're talking about a procedural matter.

[00:21:10] Speaker 00:
So what is the actual difference, though?

[00:21:11] Speaker 00:
I mean, what the arbitrator, what you perceive as being, what the government perceives as being the authority that the arbitrator has in connection with an arbitration proceeding and what an MSPB AJ would have, for example.

[00:21:22] Speaker 01:
Well, the MSBP under the regulations has discovery, as the court is well aware.

[00:21:28] Speaker 01:
The arbitration is pursuant to the arbitration agreement or the master agreement.

[00:21:32] Speaker 01:
And there's no mechanism in there for discovery.

[00:21:37] Speaker 01:
There is a mechanism for information requests under Article III, which is where the grievance can get information.

[00:21:45] Speaker 01:
So it's not that the agency is withholding information.

[00:21:48] Speaker 01:
It's a question of how that information is produced.

[00:21:51] Speaker 01:
But under either of those schemes, there's no basis for saying non-relevant information should come in, information about grievances where the same or similar charge wasn't made.

[00:22:00] Speaker 03:
And penalty.

[00:22:02] Speaker 01:
I'm sorry, Your Honor?

[00:22:03] Speaker 01:
And penalty.

[00:22:03] Speaker 01:
And penalty, correct.

[00:22:05] Speaker 01:
Because the idea of this Douglas Act is that the reason I say that is Matthews resigned.

[00:22:11] Speaker 01:
Correct, Your Honor.

[00:22:11] Speaker 01:
There was no charge there and no penalty.

[00:22:14] Speaker 01:
And the question at issue is whether the penalties are consistent.

[00:22:19] Speaker 01:
And that's what the Douglas Factor that's invoked with this sort of evidence is looking at, whether the penalties are consistent.

[00:22:27] Speaker 01:
So different charges, different underlying conduct.

[00:22:30] Speaker 01:
I mean, I would go so far to say the fact that it was a different unit, that there was a different deciding official, a different time period.

[00:22:37] Speaker 01:
All of these things show that in this case, these two weren't comparators, and it's not relevant evidence under any discovery or information-seeking scheme.

[00:22:54] Speaker 01:
The fourth argument the petitioner asserts is that the agency ignored the findings of an internal affairs division memo in which the union says that the candor charge against Opplinger was ruled as being unsubstantiated.

[00:23:12] Speaker 01:
But when you look at that document, there were two lack of candor charges.

[00:23:18] Speaker 01:
And one was found to be substantiated.

[00:23:21] Speaker 01:
The other wasn't.

[00:23:22] Speaker 01:
And of course, it's a substantiated one that led to the charge.

[00:23:26] Speaker 01:
In passing in that memo, the report suggests that this may have been caused by stress of the situation, that the inaccurate statement may have been caused by stress of the situation.

[00:23:37] Speaker 01:
But the agency just looked at the multiple versions of the story.

[00:23:41] Speaker 01:
We're not talking about just two stories.

[00:23:43] Speaker 01:
The story changed over time.

[00:23:45] Speaker 01:
There were multiple versions and different explanations on what

[00:23:50] Speaker 01:
what Mr. Opplinger was doing that morning, and the fact that it took him so long to come out with his correct... Well, it didn't take him that long.

[00:23:59] Speaker 01:
Well, his full correct story didn't come out until three weeks after the fact death.

[00:24:03] Speaker 01:
And there was... That afternoon, he admitted that he left his car in... Or he left the gun in the car overnight.

[00:24:12] Speaker 01:
But he had other statements... The M4 assault rifle.

[00:24:15] Speaker 01:
Yeah, the M4 assault rifle.

[00:24:17] Speaker 01:
There are other details that he would give in different versions of the story about, you know, leaving the gun in the car, coming in for coffee, or at what time did he wake up.

[00:24:31] Speaker 01:
There were details about whether he cleaned the gun.

[00:24:35] Speaker 01:
We read the record.

[00:24:36] Speaker 01:
It's a rifle.

[00:24:38] Speaker 01:
Yes, a rifle.

[00:24:38] Speaker 01:
Yes, thank you.

[00:24:42] Speaker 01:
And...

[00:24:46] Speaker 01:
All these variations led the agency to conclude, and a reasonable person could conclude, that it wasn't the shock of the situation.

[00:24:53] Speaker 01:
He wasn't relying on his routine.

[00:24:54] Speaker 01:
If he was relying on his routine, it would have gone from one story to the truth in an instant once he cleared his mind.

[00:25:02] Speaker 01:
But the fact he had so many varying explanations and stories could lead any reasonable person to believe and led the agency to believe that it wasn't the shock.

[00:25:11] Speaker 01:
It was his attempts to conceal the truth.

[00:25:15] Speaker 01:
So the lack of candor charge is supported by substantial evidence.

[00:25:20] Speaker 03:
You make a giglio argument that you wouldn't be able to testify, but there's a substantial difference between the lack of candor and giglio and the lack of candor here.

[00:25:32] Speaker 03:
Does it matter?

[00:25:35] Speaker 03:
Well, I mean, as I recall, that was a case about stealing refrigerators.

[00:25:39] Speaker 03:
It's been a while.

[00:25:45] Speaker 01:
Any evidence of not being forthright with the truth could be used as impeachment evidence.

[00:25:56] Speaker 01:
It appears that it is giglio and material that would have to be disclosed.

[00:26:03] Speaker 01:
And also the agency is entitled to hold its law enforcement officers up to the highest standards as far as

[00:26:13] Speaker 01:
being forthright and being honest, even in stressful situations, which they're trained to deal with.

[00:26:19] Speaker 01:
Unless there are further questions, we ask the court to affirm the ruling of the arbitrator.

[00:26:26] Speaker 01:
Thank you.

[00:26:29] Speaker 00:
We've restored two minutes of rebuttal if you need it.

[00:26:35] Speaker 02:
There were a few fundamental issues that I wanted to address.

[00:26:38] Speaker 02:
we would deny the opportunity to question the individuals who were involved in the Olson matter.

[00:26:45] Speaker 02:
That is a significant issue in this case.

[00:26:48] Speaker 02:
There should never have been a motion in eliminate.

[00:26:52] Speaker 02:
Everyone is conjecturing as to what the deliberative process was, what kind of evidence these individuals had in their possession, how they evaluated that evidence in order to determine whether there was a consistency

[00:27:07] Speaker 02:
in the way that they determined what type of charge should have been imposed on individuals and whether there was a consistency in the imposition of penalty.

[00:27:18] Speaker 02:
It is fundamentally unfair to deny in the arbitration process.

[00:27:24] Speaker 02:
And there is no language in the arbitration process which permits the preclusion of

[00:27:33] Speaker 02:
of avenues to explore.

[00:27:37] Speaker 02:
We were denied the opportunity to even question the prime decision makers as to the Olson situation.

[00:27:47] Speaker 02:
We were even denied the investigative report that had been generated in the Olson matter to show that there were probably multiple untruthful statements that were known by the individuals

[00:28:03] Speaker 02:
who had decided that Olson should not have been charged with lack of cancer.

[00:28:07] Speaker 02:
So that is one fundamental issue.

[00:28:12] Speaker 02:
Another fundamental issue was that the arbitrator didn't make a Douglas Factor penalty assessment.

[00:28:18] Speaker 02:
He did not go through the Douglas Factors.

[00:28:20] Speaker 02:
If one were to go through the Douglas Factors in terms of whether the offense was malicious, was it intentional, was it done for gain,

[00:28:32] Speaker 02:
what his past record was.

[00:28:33] Speaker 04:
He may not have gone through all, but he did address the nervous factors.

[00:28:39] Speaker 04:
Correct?

[00:28:39] Speaker 04:
I mean, he addressed the nature of citizens of the offense, past disciplinary record, work record and length of service, consistency of the penalty, mitigating circumstances.

[00:28:52] Speaker 02:
I respectfully disagree with that.

[00:28:57] Speaker 02:
If one were to look at his opinion and look at the 12 Douglas criteria, there was no discussion as to whether the penalty was consistent with the penalty imposed upon others.

[00:29:11] Speaker 02:
There was no discussion about his past work record.

[00:29:15] Speaker 02:
There was no discussion about the notoriety.

[00:29:22] Speaker 02:
And taking that factor, Olson's notoriety

[00:29:27] Speaker 02:
was nationwide.

[00:29:28] Speaker 02:
Everyone knew.

[00:29:29] Speaker 02:
It was in the papers.

[00:29:31] Speaker 02:
No one knew about the fact that Opplinger had initially gave misinformation.

[00:29:43] Speaker 00:
OK.

[00:29:45] Speaker 00:
Thank you.

[00:29:46] Speaker 00:
We thank both parties, and the case is submitted.

[00:29:51] Speaker 00:
Next case for argument is 161280, in-raid virus.