[00:00:00] Speaker 04: Case before the court is an appeal from the Merit System Protection Board. [00:00:04] Speaker 04: Case number 153196, Purifoy versus DBA. [00:00:10] Speaker 04: Mr. Sternhelm, you want three minutes for rebuttal? [00:00:14] Speaker 04: Three minutes, yes. [00:00:26] Speaker 04: Okay. [00:00:29] Speaker 04: You may begin. [00:00:30] Speaker 00: Thank you, Your Honor. [00:00:35] Speaker 00: May it please the Court. [00:00:36] Speaker 00: Philip Sternhelm for the petitioner, Lamont Purifoy. [00:00:40] Speaker 00: Mr. Purifoy has faced severe consequences as a result of his struggles with substance abuse. [00:00:47] Speaker 00: And here, an unfortunate set of circumstances came together and resulted in Mr. Purifoy's removal, all of which were triggered off of his efforts to receive treatment for that substance abuse. [00:01:00] Speaker 00: What Mr. Purifoy wants is to go back to work at the VA medical facility in Milwaukee. [00:01:07] Speaker 00: The board's removal of Mr. Purifoy was unreasonable here in light of the Douglas factors. [00:01:13] Speaker 00: The board failed to adequately consider many of the relevant factors, and its analysis where it existed was cursory at best. [00:01:22] Speaker 04: Does the board have to consider all of them? [00:01:26] Speaker 00: We're not asking for a checklist, Your Honor. [00:01:29] Speaker 00: And I think you're referring to the Nagel decision, which says that irrelevant factors do not have to be considered. [00:01:37] Speaker 00: We're not saying that the board needs to go through each one. [00:01:45] Speaker 00: But the board does have to consider relevant factors. [00:01:49] Speaker 00: And we would submit here factors such as the nature and seriousness of the offense, the notice that was [00:01:56] Speaker 00: given to Mr. Purifoy the potential for rehabilitation, and particularly the adequacy of lesser sanctions, especially where you have a situation with an administrative judge sustaining a different charge than was alleged by the agency, a significantly different charge. [00:02:18] Speaker 05: One question I have for you is I understand your argument. [00:02:22] Speaker 05: But what does the board have to do? [00:02:24] Speaker 05: Do they have to independently assess the relevant Douglas Factors? [00:02:29] Speaker 05: Or do they have to look at whether the agency independently assessed the relevant factors? [00:02:37] Speaker 00: The board does have an obligation. [00:02:39] Speaker 00: The board does have a de novo obligation to assess the relevant Douglas Factors. [00:02:46] Speaker 00: And one of the problems here is that, at best, the board [00:02:51] Speaker 00: Cited back to the agency's consideration of some of these factors if you look for example at the potential for rehabilitation It looked back to and it's what the agency does here and it's brief as well looked back to the agency's consideration in light of the alleged the the proffered charge of the six months of absence it didn't analyze it relative to the actual sustained charge of the [00:03:20] Speaker 00: two days at the beginning and the 38 days at the end. [00:03:25] Speaker 04: So you're saying that basically the board was assessing an entirely different charge than the agency did, but then deferring to the agency's Douglas factor analysis on the much broader charge? [00:03:37] Speaker 00: Yes, Your Honor. [00:03:38] Speaker 00: At best, for the factors that it even provided any consideration to, yes, that is what we believe that the board did. [00:03:45] Speaker 04: So what you really want here is for us to tell the [00:03:50] Speaker 04: board to go back and look at the Douglas Factors? [00:03:52] Speaker 00: Well, Your Honor, we believe that the record here, the only reasonable outcome from the record here is what the administrative judge did, the careful and well-reasoned analysis that the administrative judge went through. [00:04:10] Speaker 00: We would, of course, however, I believe at a minimum, a vacate and remand is required here. [00:04:18] Speaker 02: The board did recognize that the AJA only sustained the 38-day period out of that six-month charge, and then took the position that, well, even the 40-day period is a serious [00:04:40] Speaker 02: amount of time that's a lot of a lot of leave time and went on to talk about why nonetheless the mitigation is not appropriate. [00:04:52] Speaker 02: The board did go on with two pages of analysis. [00:05:00] Speaker 02: Where did they fall short? [00:05:02] Speaker 00: Well I think in two places Judge Lind, they fell short in [00:05:08] Speaker 00: We would submit that they fell short in making a raw comparison of numbers, of simply saying, we have 40 days here, and then citing a case where 14 days was serious, and really citing another case where seven days was serious, and saying 40 is bigger than 14, and so therefore it's serious. [00:05:30] Speaker 00: does not suffice. [00:05:31] Speaker 00: Without any analysis of the facts or circumstance. [00:05:32] Speaker 00: Without any further analysis of the facts, that that does not suffice under Douglas in considering the nature and seriousness of the offense. [00:05:42] Speaker 05: It sounds to me as if you think that it should be remanded not just to the board, but maybe for the board to remand it to the agency for a determination under the 40 days. [00:05:50] Speaker 05: Am I understanding that, or no? [00:05:53] Speaker 00: Well, I mean, I think we have [00:05:58] Speaker 00: I mean, I think we have the administrative judge's determination. [00:06:01] Speaker 00: So I don't know that that is necessary. [00:06:04] Speaker 04: But you think we could reverse outright based on the administrative judge's determination? [00:06:10] Speaker 00: I believe that the case law does permit a reversal of the board's decision. [00:06:17] Speaker 00: And I think we have the record of the administrative judge to reverse and remand for entrance of that. [00:06:27] Speaker 00: of the administrative judge's decision. [00:06:28] Speaker 05: Wouldn't the only basis for that be some sort of thing that there was a credibility determination in the initial decision? [00:06:36] Speaker 05: I mean, because I don't know that I see a credibility determination based on demeanor here. [00:06:42] Speaker 00: Respectfully, Your Honor, I believe that the administrative judge's determinations, especially with respect to the notice and the potential for rehabilitation, were replete with credibility determinations. [00:06:55] Speaker 05: Based on demeanor? [00:06:57] Speaker 00: Yes, Your Honor. [00:06:58] Speaker 00: I mean, it's an issue of, with respect to notice, it's an issue of what Mr. Purifoy understood from these conversations. [00:07:10] Speaker 00: And she received the testimony from, these were verbal communications. [00:07:16] Speaker 00: One side saying, I communicated this to Mr. Purifoy. [00:07:19] Speaker 00: Mr. Purifoy saying, this is what I understood. [00:07:23] Speaker 00: She heard live testimony from both sides of the conversation, and she came to the conclusion, I believe Mr. Purifoy, I heard him, and I believe that it was reasonable that he did not understand, that he did not have notice of the potential penalty and notice of the requirements that the agency is alleging for leave. [00:07:59] Speaker 00: If I may, Your Honor, I would like to come back to the adequacy of the filler to consider lesser sanctions and discuss the agency's brief here. [00:08:15] Speaker 00: Because I think the agency's brief is the prime exhibit with respect to the deficiency of the board's analysis. [00:08:23] Speaker 00: The agency doesn't defend [00:08:26] Speaker 00: the board's decision on its merits. [00:08:29] Speaker 00: The agency defends it entirely based on the proposed charge of the six months. [00:08:37] Speaker 00: And to be clear, that was not sustained by the ALJ. [00:08:44] Speaker 00: That was not by the administrative judge. [00:08:46] Speaker 00: That was not disturbed by the board. [00:08:49] Speaker 00: So any reference here to [00:08:54] Speaker 00: Mr. Perfoy's stay at the MSDF as incarceration, any suggestion that he was not at the MSDF for treatment is not supported by the record. [00:09:10] Speaker 00: And I think that goes as well to the nature and the seriousness. [00:09:19] Speaker 02: Government entitled to argue that the agency's original determination is the determination that should ultimately control, that if that decision was appropriate. [00:09:32] Speaker 02: In other words, they're going back before the AJ's determination. [00:09:38] Speaker 00: I understand your honor's question to be, could they be arguing alternative grounds for affirmance in saying that the original charge should have been sustained? [00:09:48] Speaker 00: Yes. [00:09:50] Speaker 00: I believe that that's an argument that they could have made. [00:09:55] Speaker 00: I don't believe they made that argument. [00:09:57] Speaker 00: But even in that scenario, I don't think it is within this court's purview to enter to change the sustained charge. [00:10:07] Speaker 00: I think this court, if that's what your honors believe, the appropriate thing to do would be to say, [00:10:16] Speaker 00: The removal penalty is not appropriate relative to the 40-day charge, but we would remand it back to the board for further consideration. [00:10:29] Speaker 00: And at that point in time, perhaps depending on this court's decision and the board, it could be valid. [00:10:36] Speaker 04: At this point, the government's [00:10:38] Speaker 04: The government's role is to defend the board's decision, not to try to say the board should have done something else. [00:10:44] Speaker 04: Isn't that right? [00:10:45] Speaker 00: Well, yes, Your Honor. [00:10:46] Speaker 00: And I don't think the government here actually does defend the board's decision. [00:10:51] Speaker 00: I think the government here is trying to rewrite history and rewrite the record. [00:11:04] Speaker 00: If I may, Judge Sol, just to come back to your question on credibility, I would also like to touch on the potential for rehabilitation. [00:11:12] Speaker 00: Because I believe as well that the administrative judge's findings with respect to Mr. Purifoy's pursuit of rehabilitation and the level with which he cared about his job were credibility findings that the administrative judge found. [00:11:32] Speaker 05: I can appreciate your argument. [00:11:33] Speaker 05: What about this habe case, which says that for there to be a credibility determination by an administrative judge to be one that the board can't disregard, that it has to be based on demeanor, and that that's not all credibility determinations. [00:11:51] Speaker 05: Can you help me to understand? [00:11:53] Speaker 05: It says it has to be either implicitly or expressly based on demeanor. [00:11:57] Speaker 05: So can you help me understand why here it was based on demeanor? [00:12:02] Speaker 05: As opposed to just seeing, when you look at the agency's decision, for example, there's in the record, there's something where they have a memo and they evaluate all the Douglas Factors. [00:12:12] Speaker 05: And they seem to omit certain facts, like including the fact that your client initially went [00:12:20] Speaker 05: and said, hey, I've got a problem, and he was put in a facility, and then he ended up going to this other location. [00:12:25] Speaker 05: None of that is addressed in the agency's memo. [00:12:29] Speaker 05: Maybe that's just the reason for the difference. [00:12:32] Speaker 05: But how is it that the AJ actually used a credibility determination as opposed to just viewing the facts differently, say, or viewing a more complete set of the facts? [00:12:43] Speaker 00: Because, Your Honor, I guess I'd submit that the [00:12:49] Speaker 00: The degree to which Mr. Purifoy cares about his job is inherently a demeanor-based decision. [00:13:04] Speaker 00: I think, as well, the reason that the board and the agency reject Mr. Purifoy's potential for rehabilitation is this claim that he was [00:13:19] Speaker 00: not taking full responsibility for his actions, which is certainly something that the administrative judge would be observing while receiving live testimony at the hearing. [00:13:32] Speaker 00: I see that I'm into my rebuttal time. [00:13:35] Speaker 04: Why don't you save the rest for rebuttal? [00:13:37] Speaker 00: Thank you. [00:13:55] Speaker 01: OK, please, the court. [00:13:57] Speaker 01: The court should affirm the MSPB's final decision sustaining Mr. Plurifoy's removal because the board's decision was reasonable and supported by substantial evidence. [00:14:06] Speaker 01: The board sustained the removal, finding that both charges were sustained, even if only part of the second charge was proven. [00:14:14] Speaker 01: The board then points to this court's decision in 1990 from Boroughs versus Department of Army to support that position. [00:14:21] Speaker 04: I have to say that I was a little [00:14:24] Speaker 04: confused by your brief, put it nicely. [00:14:27] Speaker 04: I mean, I felt like we were talking about two different cases. [00:14:31] Speaker 04: I mean, you really didn't. [00:14:32] Speaker 04: Now you're defending the board decision. [00:14:34] Speaker 04: But your brief seemed to ignore the board decision. [00:14:37] Speaker 04: Your brief went on and on about the six months and all those AWOL and all the portions of the charge that were not sustained. [00:14:48] Speaker 04: So why is any of that relevant? [00:14:50] Speaker 01: Ultimately, Your Honor, the [00:14:52] Speaker 01: the government's position as well as the board's position that the board did not make a decision as to whether or not the six months was applicable or the 38 days. [00:15:01] Speaker 01: What we see in the board's final decision is them saying, let's just assume what the administrative judge found. [00:15:06] Speaker 01: Let's assume this 38 days. [00:15:08] Speaker 04: I don't think they said let's just assume. [00:15:10] Speaker 04: They said that will sustain the lesser charge. [00:15:14] Speaker 01: They did, Your Honor, but what I mean by that is that there is no fulsome discussion in the board's decision saying, here's the reason why we are not accepting six months. [00:15:23] Speaker 01: They don't take up that issue. [00:15:24] Speaker 04: But the administrative judge had a really long hearing, went into great detail, and the board says, we agree. [00:15:33] Speaker 04: How are we to read from that that the board really didn't agree, that the board really thought it was much worse, and the board was just sort of saying that and not meaning it? [00:15:43] Speaker 01: We do not intend to imply that that's what the board meant, and that's not what we're reading into the board's decision. [00:15:49] Speaker 01: What we agree with and what we defend and believe is supported by the substantial evidence in the board's decision is that even the 38 days, even sustaining the 38-day time period where he was detained and incarcerated at the detention facility, that that, in addition to the two days on April 4th and April 5th, [00:16:09] Speaker 01: were enough. [00:16:10] Speaker 01: They were severe enough. [00:16:11] Speaker 01: And that was enough to sustain the agency's decision. [00:16:16] Speaker 04: Even though the board never analyzed the Douglas Factors in light of the lesser charge. [00:16:21] Speaker 01: The board did take up the fact, again, the board's decision is cast accepting the 38 days of the detention facility plus the other two days and saying, even with these 42 days, this was severe enough. [00:16:34] Speaker 01: And then they looked to those Douglas Factors with which [00:16:38] Speaker 01: or about which they disagreed with the administrative judge. [00:16:41] Speaker 05: But didn't they look at the agency's analysis of those Douglas factors? [00:16:44] Speaker 05: And the agency's analysis was based on the six-month period, not the 38 days. [00:16:49] Speaker 01: The agency certainly mentions the six months. [00:16:52] Speaker 01: But what we see when we look back at the deciding officials' memorandum, that detailed memorandum which is cited by the board, is that the reference is not only to the fact that it was a six-month period. [00:17:03] Speaker 01: The references there that we see are the fact that it was a continued, unexcused absence. [00:17:08] Speaker 01: And whether that is a 38-day period of time or 40 days, counting the detention period in the previous two days, or whether it's a six-month period, that is not a small amount of time for somebody not to show up for work, not to submit paperwork. [00:17:21] Speaker 04: But the board never did the analysis. [00:17:23] Speaker 04: I mean, in fairness, they never once looked at the adequacy of lesser sanctions. [00:17:27] Speaker 04: So yes, the agency did. [00:17:30] Speaker 04: And they said, we don't want to do lesser sanctions because we're talking six months. [00:17:34] Speaker 04: The board now has 38 days. [00:17:37] Speaker 04: The board doesn't do that analysis despite the fact that the penalty range is from 14 days suspension all the way up to termination. [00:17:44] Speaker 04: Doesn't that imply that there has to be some assessment as to whether or not a lesser sanction would be sufficient? [00:17:50] Speaker 01: I think given the fact, and again, what we see the board do is focus on this fact that this penalty was so severe. [00:17:57] Speaker 01: I'm sorry, not the penalty, but the charges themselves and the impact that it had on the agency was so severe and was not mitigated by those things cited by the administrative judge. [00:18:08] Speaker 01: And with respect to the adequacy of the lesser penalties, again, the board relies on what the agency did because the board's position was that [00:18:19] Speaker 01: once the charges have been sustained, which they were, that the deference is owed to the agency. [00:18:24] Speaker 01: And unless it exceeds the parameters of reasonableness, or the board did not consider the 12 Douglas Factors, unless those things happen, that the deference should be given to the chosen penalty of the board. [00:18:34] Speaker 01: And so, yes, there's this broad range. [00:18:37] Speaker 04: The chosen penalty of the agency. [00:18:38] Speaker 04: I mean, the board says we would defer to the chosen penalty of the agency, assuming that the charge is sustained. [00:18:44] Speaker 04: So this is like saying, OK, [00:18:46] Speaker 04: You know, your charge is bank robbery. [00:18:48] Speaker 04: It turns out that it was just littering. [00:18:50] Speaker 04: And so whatever sentence that the trial court calculated for bank robbery, we're going to defer to, even though we're really only looking at littering. [00:18:58] Speaker 04: I mean, that's a totally different, they're apples and oranges. [00:19:01] Speaker 01: Respectfully, Your Honor, I would submit that they're oranges and oranges. [00:19:05] Speaker 01: We're just talking about the size of the orange. [00:19:06] Speaker 01: Using the burglary example, it would really be more that the charge is burglary, and instead of stealing $12 million, you only stole six. [00:19:16] Speaker 01: He was, in fact, on continued unauthorized absence. [00:19:20] Speaker 01: He was counseled repeatedly to submit this paperwork. [00:19:23] Speaker 01: And he simply did not do so. [00:19:24] Speaker 04: Well, the ALJ didn't find that he was counseled repeatedly to submit the paperwork. [00:19:28] Speaker 04: And in fact, the ALJ found, as a matter of fact, that he didn't really receive that notice. [00:19:34] Speaker 01: Well, with respect to the period when he was in treatment, the administrative judge seems to agree that for that period of time for which he was incarcerated and not receiving treatment, that he is not excused for that period of time for not having submitted paperwork. [00:19:50] Speaker 05: And so, again, what we have- What about her differing view on the potential for rehabilitation? [00:19:54] Speaker 05: She says he has good potential for rehabilitation. [00:19:58] Speaker 05: Why isn't that given any deference by the board? [00:20:00] Speaker 01: It's not an indifference by the board, Your Honor, because that's not a demeanor-based credibility determination. [00:20:05] Speaker 01: There's nowhere within the administrative judge's opinion where it's implied or it's expressly stated that, based on the demeanor of the witness when testifying, I believe what he's saying. [00:20:17] Speaker 04: And the... Well, it doesn't have to be expressly stated. [00:20:20] Speaker 04: From the context, it can be clearly implied. [00:20:23] Speaker 04: And the context here is several days of testimony in which she fleshes out everything that happened, including what she apparently believed to be some real unfairness in terms of the way he was treated, both by the agency and by the parole officer. [00:20:41] Speaker 04: So how do we say that a potential for rehabilitation doesn't have everything to do with demeanor? [00:20:49] Speaker 01: Well, I think even if the court were to find that it were a demeanor-based credibility determination, that in and of itself is not insulated from the board reaching a different conclusion if it has sound reasons for doing so, and that's reflected in the record. [00:21:02] Speaker 01: And here, what the board refers to when it addresses this issue on the ability or, I'm sorry, [00:21:09] Speaker 01: his likelihood for rehabilitation is it goes back to those findings of the deciding official and says, we have a deciding official here who is saying, this man is no longer, although he was in the beginning, and the agency was behind him in the beginning when he was taking these steps towards treatment. [00:21:24] Speaker 01: When he threatened the inmate in treatment and was forced into lockup, at that point, he was not taking responsibility for his treatment. [00:21:31] Speaker 01: At the point at which he never communicated what his address would be when he was gone and away from work for those 40 days, [00:21:39] Speaker 01: He never communicated that to the agency. [00:21:41] Speaker 01: That's not taking responsibility. [00:21:42] Speaker 05: What about the fact that in the agency's member random decision on considering this factor, it doesn't even talk about the fact that he went to his third line supervisor and said, hey, I've got a problem. [00:21:53] Speaker 05: And that third line supervisor sent him to a VA facility for treatment. [00:21:59] Speaker 05: This whole thing happened with the parole officer and everything, but it's not even addressed. [00:22:04] Speaker 05: How is it that the agency can make an informed Douglas analysis without even addressing that part of the rehabilitation facts? [00:22:12] Speaker 01: I think looking into the whole of what Mr. [00:22:15] Speaker 01: I think that is reflected in the deciding official. [00:22:19] Speaker 01: But when we're talking about now where we are, not where he started in the beginning, not when he was... He's not even addressed in the agency decision. [00:22:26] Speaker 05: How can you say it's reflected? [00:22:28] Speaker 01: I thought... I may be mistaken, Your Honor. [00:22:29] Speaker 01: I thought that it was mentioned in the beginning that he was initially at the VA medical center. [00:22:35] Speaker 04: But in any event... But it wasn't mentioned, as the ALJ brings out, that it was actually his own supervisor who sent him there and said, take care of yourself, get yourself where you need to be. [00:22:46] Speaker 04: And so the ALJ felt that there could be a reasonable assumption that he could continue in treatment to the extent that he was able to do so until he was healthy. [00:22:58] Speaker 01: And respectfully, Your Honor, I am sympathetic to Mr. Purifoy's position. [00:23:03] Speaker 01: I believe that the agency was initially sympathetic to Mr. Purifoy's position. [00:23:07] Speaker 01: And that's why they did what they did. [00:23:09] Speaker 01: That's why they excused the time for which he was going to be in treatment voluntarily. [00:23:13] Speaker 01: It was the series of bad decisions that Mr. Purifoy made after he left treatment at the VA Medical Center that leaves us where we are now. [00:23:20] Speaker 01: And that is what reflects what his current possibility or potential for rehabilitation is. [00:23:27] Speaker 01: And so when you look at the series of bad mistakes that he made, it was certainly rational, even if we disagree, even if the court disagrees, it was certainly rational for the agency to reach the conclusion that it reached. [00:23:37] Speaker 01: And it was reasonable and supported by the evidence for the board to look at the agency's point of view on this and take that side and disagree with what the administrative judge found. [00:23:49] Speaker 05: You said that you thought the memo addressed where he reported to his third line supervisor, or at least where he went to an individual treatment facility. [00:23:56] Speaker 05: I see that nowhere. [00:23:57] Speaker 05: I'm looking at page 186, for example, under the heading Potential for Employees Rehabilitation. [00:24:04] Speaker 05: Can you tell me where you see that? [00:24:06] Speaker 01: I will take a quick look, Your Honor. [00:24:08] Speaker 01: As I mentioned, I may be mistaken on that. [00:24:14] Speaker 01: But I think Your Honor is correct. [00:24:16] Speaker 01: It seems to pick up with his transfer or his entering the detention facility. [00:24:24] Speaker 01: And again, I think that simply reflects what really created the problem here. [00:24:30] Speaker 01: And so I think your honor is absolutely correct to say it's certainly commendable that he took these steps. [00:24:38] Speaker 05: That's not my point. [00:24:40] Speaker 01: I'm sorry. [00:24:41] Speaker 05: My point is that they were evaluating something called potential for employees rehabilitation. [00:24:46] Speaker 05: And there are certain facts that seem to maybe relate to that. [00:24:49] Speaker 05: And they didn't take them into account. [00:24:50] Speaker 05: I'm not trying to reweigh their determination. [00:24:54] Speaker 05: I just want to make sure you know where I'm at. [00:24:56] Speaker 05: I don't see that they're taking into account [00:25:00] Speaker 05: all of the relevant information. [00:25:02] Speaker 01: I think Your Honor is correct that that's not mentioned in that particular Douglas Factor. [00:25:08] Speaker 01: But I'm not sure that it's relevant at the point at which this was written. [00:25:14] Speaker 01: And that's to say that this was written in October of 2013. [00:25:17] Speaker 01: At this point, again, we have these unexcused absences. [00:25:21] Speaker 01: We have, whether you count it beginning at six months or whether you count it after Mr. Purpoi had been kicked out of the treatment program at the detention facility, we have continued unexcused absences. [00:25:33] Speaker 01: And it's at that point that the agency [00:25:35] Speaker 01: evaluates what his potential for rehabilitation is at that point. [00:25:39] Speaker 01: And at that point, what Mr. Purifoy has is a series of bad decisions and that was the basis or appears to be the basis for what the deciding official evaluated. [00:25:49] Speaker 04: You're saying they can pick the point in time on a continuum at which they choose to start assessing potential for rehabilitation and ignore everything that started the [00:26:01] Speaker 04: the road down this road? [00:26:03] Speaker 01: I'm not suggesting that at all, Your Honor. [00:26:05] Speaker 01: I am saying that as it relates to the charges, and those charges were the periods of his absence without leave. [00:26:11] Speaker 01: And so the period, even if we take the 38 days, the two days where he was absent due to substance abuse, and the 30 days where he was in the detention facility and not receiving treatment, what's relevant to those charges is [00:26:28] Speaker 01: where he was, what his state of mind was, and relevant to that, he still had obligations. [00:26:33] Speaker 01: And so the question is, did he act responsibly even in light of what he was going through? [00:26:38] Speaker 01: And the answer here is clearly no. [00:26:40] Speaker 01: He was told to submit paperwork. [00:26:43] Speaker 01: He did not submit paperwork, even if he understood for the period of his treatment that he did not need to do so. [00:26:49] Speaker 01: It was clear that before he even left for treatment at the VA Medical Center that he needed to submit paperwork for those two days that he missed prior to entering voluntary treatment. [00:26:59] Speaker 01: He never did that. [00:27:00] Speaker 01: When he spoke with HR, [00:27:02] Speaker 01: After that, when he was incarcerated, the period that even the administrative judge agrees that he was incarcerated, for that period of time, there is no effort on the part of Mr. Purifoy to submit the required paperwork. [00:27:18] Speaker 01: And that simply isn't, you know, it's not a small thing to have to comply with the terms of your employment. [00:27:25] Speaker 01: And we're not looking at one or two days again. [00:27:28] Speaker 01: We are looking at 40 days that's in work days, you know, somewhere in the neighborhood of six weeks. [00:27:34] Speaker 01: It's hard to believe that any of us wouldn't expect to be removed from our employment if we were absent for a period of six weeks, regardless of the reason, without submitting the paperwork that was required, of which we were trained and notified of. [00:27:48] Speaker 01: If the panel has no further questions, again, we respectfully request that the court affirm the board's decision. [00:27:56] Speaker 04: OK. [00:27:57] Speaker 04: We have about two minutes for rebuttal. [00:28:00] Speaker 00: Thank you, Your Honor. [00:28:02] Speaker 00: I just want to pick up on something that my colleague said. [00:28:06] Speaker 00: She kept referring to a series of bad decisions that Mr. Purifoy made, and I'm really kind of perplexed as to what those bad decisions were. [00:28:18] Speaker 00: the page that Judge Stoll directed us to at 186 in terms of the potential for rehabilitation. [00:28:25] Speaker 00: What the agency looked at in saying that he did not have a good potential for rehabilitation, they were treating that entire period at the MSDF, that entire six months, as incarceration. [00:28:39] Speaker 00: There are several problems with that. [00:28:41] Speaker 00: There is not evidence in the record. [00:28:43] Speaker 00: And the ALJ rejected the contention that Mr. Purifoy was incarcerated. [00:28:50] Speaker 00: But it also ignores the fact that Mr. Purifoy was in the MSDF because he had voluntarily sought treatment at the VA medical facility. [00:29:01] Speaker 00: So I'm not sure whether the government is saying that his compliance with his parole agent to report to the MSDF was a bad [00:29:11] Speaker 00: decision or his entrance into the alternative to revocation process at the MSDF was a bad decision. [00:29:18] Speaker 00: This was written not from the perspective of his exit from the treatment program. [00:29:26] Speaker 00: It was written from the perspective of him being at the MSDF in the first place. [00:29:32] Speaker 02: What do you say in response to counsel's argument that he didn't submit the paperwork? [00:29:42] Speaker 02: And he was out for several weeks. [00:29:44] Speaker 02: And everybody knows if you're going to be out for that long, you've got to at least submit your paperwork. [00:29:51] Speaker 00: Well, sir, there are two issues with that, Your Honor. [00:29:54] Speaker 00: The first is that when he entered the VA medical facility to receive treatment, he received verbal approval from his supervisor, who at that time said to him, go take care of yourself. [00:30:09] Speaker 00: You're going to need to submit paperwork. [00:30:13] Speaker 00: He did not, admittedly, did not submit paperwork when he went to Madison to receive treatment. [00:30:20] Speaker 00: He was excused for that period of time and found that he was authorized to have leave. [00:30:28] Speaker 00: He had a similar verbal conversation with his supervisor before he entered the MSDF. [00:30:33] Speaker 00: His testimony at the hearing with the administrative judge was, [00:30:39] Speaker 00: understood that I was following the directions by attempting to contact, by telephone, my supervisors. [00:30:47] Speaker 00: And there's additionally testimony at the hearing in front of the administrative judge that verbal approval is often given for leave. [00:30:57] Speaker 00: So it is not that it's this wildly impossible scenario that [00:31:04] Speaker 00: he would understand that verbal approval was sufficient for him to request leave. [00:31:11] Speaker 00: When he was made aware, when the agency raised this contention of not submitting the required paperwork, and they did that in their first removal decision, he responded in writing in his first removal decision, said, I understood the verbal approval to be enough. [00:31:30] Speaker 00: If I was incorrect, I'm hereby [00:31:32] Speaker 00: I'm hereby requesting leave. [00:31:36] Speaker 00: The agency ignored that. [00:31:38] Speaker 00: And so you have this extended period of AWOL that they eventually charged him with that was really of their own making. [00:31:47] Speaker 00: They knew where he was. [00:31:49] Speaker 00: He had told them where he was. [00:31:51] Speaker 00: He told his supervisor where he was going. [00:31:54] Speaker 00: He, at a minimum, requested leave, or at least requested how [00:32:02] Speaker 00: how to obtain the leave in response to their removal action, and yet they kept him AWOL until his release in November. [00:32:12] Speaker 00: So this contention that they didn't know where he was, that he was not making any effort to apprise the agency or to [00:32:26] Speaker 00: of where he was or to obtain the required leave is really just not supported by the record. [00:32:32] Speaker 02: What about the fact that when his treatment was terminated, when he was at the detention facility, and there's no obligation on his part at that point, he knew he was not going to be able to go back to work for a long period of time. [00:32:50] Speaker 02: He knew that his treatment was effectively over. [00:32:54] Speaker 02: No obligation to at least pick up the phone? [00:33:02] Speaker 00: Yes, had he picked up the phone, that would have been better. [00:33:08] Speaker 00: But his release from the MSCF, the program would have taken him through the, the end of the program would have taken him up to that release date. [00:33:22] Speaker 00: So it's not as though he was there for some extended period of time beyond what he had told his supervisor with respect to that date. [00:33:34] Speaker 00: Before he entered the treatment program at the MSDF, what he said to HR at the BAMC was, I'm entering this alternative revocation program. [00:33:46] Speaker 00: This treatment program starts in July. [00:33:49] Speaker 00: And it will run through the end of October. [00:33:52] Speaker 00: He was eventually released on November 3rd or 4th, I believe. [00:33:58] Speaker 00: There are no further questions. [00:34:00] Speaker 00: Thank you, Your Honor. [00:34:00] Speaker 04: The case will be submitted. [00:34:02] Speaker 04: This court is adjourned. [00:34:04] Speaker 03: All rise. [00:34:14] Speaker 06: Now the court is dismissed from day to day. [00:34:30] Speaker 03: Oh, I'll talk to, I'll talk to your agency when I'm filtering this out. [00:34:47] Speaker 03: Yeah, I'll definitely bring that up in the chat, I think. [00:34:51] Speaker 00: Okay, yeah, he wants to go back to work. [00:34:52] Speaker 00: So, whatever, whatever kind of doubt you have, [00:35:00] Speaker 03: Okay, thank you. [00:35:10] Speaker 06: Yeah, I was saying, you know, just don't stick it. [00:35:24] Speaker 06: They need to be replaced. [00:35:27] Speaker 06: Yeah, I guess I could go out and I could tell you the meaning of the thing, but it doesn't do the same thing all the way. [00:35:43] Speaker 06: Beneath him, if I'm not often taking care of the ceiling fan, that's a problem in the basement, or putting a ring on that toilet. [00:35:55] Speaker 06: Because if it's just the skin that's almost covered, or the diverted, then it's not possible.