[00:00:33] Speaker 03:
Next case is Thomas Smith versus the Department of Homeland Security, 2015, 3065.

[00:00:40] Speaker 03:
Mr. Friedman.

[00:00:48] Speaker 05:
Thank you.

[00:00:49] Speaker 05:
May it please the court.

[00:00:52] Speaker 05:
This unfortunate matter had arisen as a result of a minor event caused by forces outside of the control

[00:01:03] Speaker 05:
of the petitioner in this case, Thomas Smith, where, and has resulted in his termination.

[00:01:10] Speaker 05:
He was a dedicated Federal Air Marshal with an otherwise unblemished and exemplary record of 10 years of service.

[00:01:20] Speaker 05:
The incident was, the underlying incident was described as an assault on one of Smith's team members when he was

[00:01:32] Speaker 05:
On a mission, it was a one and a half day mission where he and three other team members traveled from Philadelphia on a commercial international airline to Brussels.

[00:01:47] Speaker 03:
Aren't there facts here to which we have to defer?

[00:01:50] Speaker 03:
There was an investigation.

[00:01:52] Speaker 03:
He caused a witness to lie.

[00:01:54] Speaker 03:
He threatened him.

[00:01:55] Speaker 03:
Aren't these underlying facts supporting the lack of candor charge?

[00:02:02] Speaker 05:
The lack of candor charge was based upon a determination that Mr. Smith had intentionally provided misleading testimony, relating to the time of the event in question.

[00:02:25] Speaker 05:
And the fundamental issue is, in a lack of candor charge,

[00:02:32] Speaker 05:
There is a difference between a false statement made under a good faith estimate and a false statement made with an intentional intent to deceive.

[00:02:46] Speaker 03:
There were credibility judgments here.

[00:02:48] Speaker 03:
We can't do anything about those.

[00:02:50] Speaker 05:
There was no credibility assessment made by the administrative judge in this case based on demeanor evidence.

[00:03:01] Speaker 05:
There is a significant issue as to whether the injured Federal Air Marshal, Mr. Messinger, was treated in the same fashion as Mr. Smith.

[00:03:19] Speaker 05:
Mr. Smith rendered aid to a colleague of his who had been assaulted, who was bleeding profusely, who had gone

[00:03:28] Speaker 05:
with his colleague by ambulance to a local hospital, stayed with him, and then returned to his motel room or hotel room and provided a written statement.

[00:03:42] Speaker 05:
He was focused on the events relating to the well-being of his colleague.

[00:03:50] Speaker 05:
He had given a good faith estimate as to the time of the events in question.

[00:03:58] Speaker 05:
Mr. Messinger was also asked questions relating to the timing of the events in question.

[00:04:09] Speaker 05:
Mr. Messinger claimed that he did not have any memory of any of the circumstances, would not give an estimate as to when he believed the events took place,

[00:04:27] Speaker 05:
and stated that he suffered a head injury.

[00:04:31] Speaker 05:
The only head injury that he had was a cut to his head.

[00:04:35] Speaker 05:
There was no treatment rendered to him at the hospital for his head injury other than to address the wound and to treat his fractured ankle.

[00:04:52] Speaker 05:
There is no evidence that Mr. Messinger was

[00:04:57] Speaker 05:
suffering any neurological problems.

[00:05:02] Speaker 05:
He wasn't treated for any vision problems.

[00:05:05] Speaker 05:
He didn't complain of headaches.

[00:05:06] Speaker 05:
He didn't seek any treatment for any issue which could possibly have been related to a memory issue.

[00:05:15] Speaker 05:
At the time he was in the hospital, he texted his wife.

[00:05:19] Speaker 05:
He had spoken to the hospital personnel.

[00:05:22] Speaker 05:
He had spoken to Mr. Smith.

[00:05:26] Speaker 05:
One of the major focuses of Mr. Smith's claim is that the agency has applied different evidentiary standards to Mr. Smith as it had applied to Mr. Messinger.

[00:05:45] Speaker 05:
Mr. Messinger was not cited for lack of candor.

[00:05:54] Speaker 05:
During the investigation that took place when the federal air marshals were interviewed about two and a half months later, Mr. Altomare and Mr. Messinger were told that the incident had occurred at a particular period of time based upon ambulance records and based upon hospital records.

[00:06:18] Speaker 05:
Mr. Smith was not informed of that.

[00:06:23] Speaker 05:
There would be no plausible... Why do they have to inform him about it?

[00:06:28] Speaker 05:
Why do they have to inform him about it?

[00:06:31] Speaker 05:
Mr. Smith gave a statement where he, in good faith, believed that the incident happened... Well, you keep saying it's in good faith, but the testimony

[00:06:46] Speaker 02:
from other people and the AJ specifically found that he was lying to cover up the fact that they were drinking in an impermissible time period.

[00:06:55] Speaker 02:
And so whether or not he was told the time or whether the others were told the time, the fact is there's a factual finding based upon evidence that he was not telling the truth intentionally.

[00:07:08] Speaker 02:
It's not just a negligent oversight on the time.

[00:07:12] Speaker 05:
With regard to the drinking issue and the

[00:07:16] Speaker 05:
and the disparity in treatment and the inequality in treatment.

[00:07:25] Speaker 02:
Mr. Messinger was not found culpable of... Again, the fact that the agency treated this other person who was not the team leader differently, even if there was disparate treatment,

[00:07:44] Speaker 02:
Isn't the team leader subject to a higher penalty?

[00:07:49] Speaker 05:
A team leader may be subject to a higher penalty.

[00:07:54] Speaker 02:
Particularly when he fabricated a story to try to cover it up.

[00:08:00] Speaker 05:
A team leader may be entitled to a higher penalty if he fabricated something.

[00:08:09] Speaker 05:
But in terms of culpability,

[00:08:13] Speaker 05:
if two individuals engage in identical conduct.

[00:08:17] Speaker 02:
It seems to me your whole argument here on appeal is they should have also fired this other guy because he did the same kind of impermissible drinking as my client.

[00:08:28] Speaker 05:
That is a conclusion that is being made based upon the premise that Mr. Smith was lying.

[00:08:38] Speaker 02:
But that's the conclusion that the AJ made

[00:08:41] Speaker 02:
based upon specific factual testimony?

[00:08:44] Speaker 05:
Without taking into account the fact that Mr. Smith, during the course of the investigation, was not apprised of the records that the investigator had, which showed that the incident occurred at a time later than what Mr. Smith

[00:09:10] Speaker 05:
had thought.

[00:09:16] Speaker 05:
Why would there not be a good faith belief on Mr. Smith's part?

[00:09:31] Speaker 05:
Why could he not have been totally focused on rendering aid to a fallen colleague

[00:09:39] Speaker 02:
uh... traveling what he could but that's the argument you made to the a l j and as a fact-finder the a l j the a j disagreed with you and found the opposite but we're not here to read decide the facts we're here to look at the evidence and the evidence is even before this interview that you claim he should have been told the data he helped another subordinate and according to the subordinate compelled him into filing a false incident report predating the time period he continued to lie about it interview

[00:10:08] Speaker 02:
he harassed the subordinate.

[00:10:09] Speaker 02:
Those are all factual allegations that I know you disagree with, but they're what the AJ found, and they're supported by specific pieces of evidence.

[00:10:17] Speaker 02:
And how can we just sit here and decide your story is better now on appeal?

[00:10:22] Speaker 05:
The factual evidence of record which the administrative judge did not consider and which was significant.

[00:10:29] Speaker 02:
Don't talk about what they didn't consider.

[00:10:31] Speaker 02:
Talk about the evidence that the AJ relied on and why it's not substantial evidence.

[00:10:37] Speaker 05:
In order to reach a substantial evidence finding, one must look at the evidence which is not supportive of the evidence.

[00:10:50] Speaker 02:
Which detracts from the whole picture, right.

[00:10:53] Speaker 02:
But there's a lot of evidence supporting the AJ's finding.

[00:10:57] Speaker 05:
But a significant and material piece of evidence that the administrative judge did not consider

[00:11:04] Speaker 05:
was Mr. Altomare's statement that at the time the initial report was drafted, he believed that the time of the event were correct.

[00:11:20] Speaker 05:
And then when Mr. Altomare returned to Philadelphia, he had given a statement, an independent statement.

[00:11:31] Speaker 05:
independent statement was consistent with his initial statement.

[00:11:35] Speaker 05:
And he stated at the time of the hearing that he believed that when he made the first two statements, that the times that he had placed in the statement were accurate.

[00:11:50] Speaker 02:
But in between that, he recanted and said Smith forced him into going along with that story.

[00:11:56] Speaker 02:
And that's the piece of evidence that A.J.

[00:11:58] Speaker 02:
relied on.

[00:11:59] Speaker 02:
Aren't those two, I mean, there's two different stories, and AJ can pick one, can't he?

[00:12:06] Speaker 02:
I mean, particularly because he heard Altamar's testimony live, didn't he?

[00:12:10] Speaker 05:
No.

[00:12:11] Speaker 05:
No?

[00:12:12] Speaker 05:
No.

[00:12:13] Speaker 05:
The time sequence of events is that on the morning after the incident, there was a joint report sent to management.

[00:12:29] Speaker 05:
After Mr. Altomare returned to Philadelphia, he prepared a second report.

[00:12:36] Speaker 05:
Both of those reports indicated that the incident happened at approximately 1130 p.m.

[00:12:44] Speaker 05:
When Mr. Altomare was interviewed two months later, he initially told the investigators that the incident happened at 1130 p.m.

[00:12:55] Speaker 05:
After he was shown

[00:12:57] Speaker 05:
the ambulance records and the hospital records and was interrogated for four hours, he changed his story.

[00:13:08] Speaker 02:
So the AJ knows all of this and he's still choosing the other story over yours?

[00:13:15] Speaker 05:
That was not reflected in the decision that the administrative judge issued.

[00:13:22] Speaker 02:
Can I refer you to pages 23 and 24?

[00:13:25] Speaker 02:
of the supplemental appendix, specifically talking about the inconsistencies in his testimony and his changing of his story, and it finds that he went along with the fabrication of the story.

[00:13:44] Speaker 05:
I'm sorry, where were we?

[00:13:46] Speaker 02:
It's okay, you can move on.

[00:13:49] Speaker 03:
You're well into your rebuttal time, Mr. Friedman.

[00:13:51] Speaker 03:
Thank you.

[00:13:51] Speaker 03:
If you want to save the rest of it.

[00:13:53] Speaker 03:
Yes.

[00:13:54] Speaker 03:
Over here from the government, Mr. Iyarasi.

[00:14:04] Speaker 01:
Good morning and may it please the court.

[00:14:07] Speaker 01:
This case is about a federal law enforcement officer who betrayed both the public's and his employer's trust.

[00:14:13] Speaker 01:
He did so repeatedly and attempted to cover it up.

[00:14:16] Speaker 01:
When the agency discovered his malfeasance, it fired him.

[00:14:19] Speaker 01:
was right to do so.

[00:14:22] Speaker 01:
The MSPB sustained three charges against Mr. Smith in this case for lack of candor, interfering with an investigation, and violation of the TSA's policy on the consumption of alcohol prior to mission time.

[00:14:33] Speaker 01:
Ample evidence supported each one of the charges and the MSPB decision should be affirmed accordingly.

[00:14:40] Speaker 01:
What this case is really about is about credibility.

[00:14:42] Speaker 01:
Credibility of the petitioner, Thomas Smith,

[00:14:45] Speaker 01:
credibility of his fellow federal ear marshals on the mission with him that night, credibility of the investigating Secret Service agent, as well as other federal ear marshals who were uninvolved but who interacted with the petitioner when he returned to Philadelphia.

[00:15:00] Speaker 01:
Most of the petitioner's arguments here are mere disagreements with the administrative judge's witness credibility determinations and conclusions.

[00:15:09] Speaker 01:
But those are insufficient bases for this court

[00:15:11] Speaker 01:
to overturn the MSPB decision.

[00:15:13] Speaker 01:
In fact, as this Court has held, and as the Court is aware, credibility determinations made by an administrative judge are, quote, virtually unreviewable by this Court.

[00:15:22] Speaker 01:
Mr. Friedman argues that the administrative judge did not make demeanor-based credibility determinations.

[00:15:31] Speaker 01:
But in fact, that's not the case.

[00:15:32] Speaker 00:
The MSPB decision at Supplemental Appendix believes to be based on demeanor to earn deference to them.

[00:15:42] Speaker 01:
They do not, but in this case particularly, the MSPB held that the administrative judge's credibility determinations, while the judge did not explicitly say that he based them on the witness's demeanor, the MSPB board decided that, or held, that the judge at least implicitly made demeanor-based credibility determinations.

[00:16:08] Speaker 01:
So to the extent that... Who testified live before the A.J.?

[00:16:11] Speaker 01:
?

[00:16:11] Speaker 01:
Well, Mr. Altamire, in fact, did testify live.

[00:16:15] Speaker 01:
As Your Honor noted, Mr. Altamire was unclear about what time the events that night occurred.

[00:16:25] Speaker 01:
But ultimately, when he testified before the Minister, and actually before the Minister of Judge, he was a little bit unclear about what the times were.

[00:16:31] Speaker 01:
And what the Minister of Judge concluded was that he thought his testimony regarding the timing of the events was more accurate and more reliable

[00:16:40] Speaker 01:
only a couple months after the events versus 20 months after at the time of the hearing.

[00:16:47] Speaker 01:
Essentially, most of the arguments the petitioner makes here are challenges to the witness credibility determinations made by the administrative judge for lack of candor interfering in the investigation as well as the alcohol violations.

[00:16:59] Speaker 01:
Although the petitioner claims that the administrative judge never took into account certain facts or testimony on behalf of the other earmarkers, that's not the case.

[00:17:08] Speaker 01:
We point that out in our brief where

[00:17:10] Speaker 01:
Specifically, the administrative judge made credibility determination.

[00:17:14] Speaker 02:
Was Messenger disciplined in any way for this event?

[00:17:17] Speaker 01:
He was.

[00:17:17] Speaker 01:
He was originally slated to be suspended for 30 days, but that suspension was reduced to 14 days.

[00:17:25] Speaker 01:
To the extent that Mr. Smith here argues that he was treated unfairly as compared to his fellow federal air marshals, what happened was that the agency investigated the three air marshals that were on

[00:17:38] Speaker 01:
the mission that went out that night drinking for nearly eight hours.

[00:17:43] Speaker 01:
It fired two of them and suspended one of them.

[00:17:46] Speaker 01:
With regard to the extent that the petitioner is making an argument that the penalty itself was unjustified, each one of the first two charges leveled against Mr. Smith, lack of candor interfering with investigations, alone are

[00:18:03] Speaker 01:
justified the penalty of removal according to the TSA's own table of penalties and offenses.

[00:18:09] Speaker 01:
For this court to second-guess that, the court can only review the penalty determination of the agency if it's totally unwarranted.

[00:18:18] Speaker 01:
What happened here was that the deciding official took into account all of the aggravating and mitigating circumstances with regard to Mr. Smith's offenses as well as his past and blemish record

[00:18:31] Speaker 01:
He detailed that extensively in a written form as well as testifying before the administrative judge at the hearing.

[00:18:37] Speaker 01:
The administrative judge reviewed that penalty determination to see if it was reasonable or not and concluded that it was.

[00:18:43] Speaker 01:
TSA's choice of the recommended penalty based on its own table of offenses for a federally marksman who repeatedly tried to interfere with an investigation violated a significant safety protocol by drinking

[00:18:58] Speaker 01:
well within the barred window before mission time.

[00:19:02] Speaker 01:
And then attempting to cover up was certainly well within the bounds of reasonableness.

[00:19:07] Speaker 01:
Regarding Mr. Smith's allegation of harmful procedural error, the burden is on Mr. Smith to prove that an error occurred and that it was harmful.

[00:19:18] Speaker 01:
This is a classic case of where the cover-up was worse than the crime.

[00:19:23] Speaker 01:
The agency investigated all of the federal remarks involved that night.

[00:19:28] Speaker 01:
And it was Mr. Smith's response to that investigation that caused concern for the agency and caused him so much trouble later on.

[00:19:36] Speaker 01:
Mr. Smith never points to any particular investigatory guideline that was violated by the fact that the special agent who was investigating did not disclose to him the fact that the agency had the EMS records and knew exactly what time the event occurred.

[00:19:50] Speaker 01:
Because there was no investigatory guideline that was violated, there was no error in that investigation.

[00:19:56] Speaker 01:
Moreover, it was Mr. Smith's response to the investigation by trying to cover it up, by trying to intimidate his junior probationary federal air marshal that he was supervising, as well as his continued intransigence during the investigation that made the agency end up treating him differently and in fact firing him as opposed to firing the air marshal who was injured that night.

[00:20:21] Speaker 01:
If the panel doesn't have any questions.

[00:20:23] Speaker 00:
It seems to me that the confidentiality markings in your briefs are improper.

[00:20:28] Speaker 00:
You mark messenger's name as confidential, the time of the drinking, the name of the cafe where they were.

[00:20:36] Speaker 00:
None of this is appropriately labeled confidential.

[00:20:39] Speaker 00:
And indeed, you yourself at oral argument disclose some of that information.

[00:20:44] Speaker 00:
I just don't understand what you're doing.

[00:20:46] Speaker 01:
Well, Your Honor, to the extent that I disclosed any of that information during the argument here, it was inadvertent.

[00:20:51] Speaker 01:
I'm not sure which one

[00:20:53] Speaker 00:
You mentioned Messenger's name.

[00:20:55] Speaker 01:
I think I only referred to him as an engineer.

[00:20:58] Speaker 00:
No, you used his name specifically.

[00:20:59] Speaker 01:
I apologize.

[00:21:00] Speaker 01:
Certainly, the redactions that I made in my brief were based on redactions that the agency made.

[00:21:11] Speaker 00:
Yeah, but you're supposed to re-examine them.

[00:21:14] Speaker 00:
Anyway, I don't want to argue about it.

[00:21:16] Speaker 00:
I think that it's an example of over-marking and you shouldn't be doing it.

[00:21:22] Speaker 00:
Hopefully our new rule will take care of this when it comes out.

[00:21:25] Speaker 00:
Understood, Your Honor.

[00:21:27] Speaker 03:
Thank you, Counsel.

[00:21:28] Speaker 03:
Thank you.

[00:21:28] Speaker 03:
Mr. Friedman has a couple of minutes for you, but a few minutes too.

[00:21:34] Speaker 04:
Yes.

[00:21:40] Speaker 05:
Mr. Messinger received a 14-day suspension based upon missing a return flight.

[00:21:46] Speaker 05:
He did not receive a suspension for lack of candor.

[00:21:51] Speaker 05:
He didn't receive a suspension for violating TSA's policy on the use of alcohol.

[00:21:59] Speaker 05:
So he was treated in a disparate fashion.

[00:22:03] Speaker 05:
In terms of the harmful procedural her portion, there is an Office of Mission Support Regulation 3700, which is cited in the brief.

[00:22:18] Speaker 05:
And it talks about employees perform duties fair and partial and reasonable manner equally to everyone.

[00:22:28] Speaker 05:
There was testimony by the supervisory special agent, the one who supervised the special agent who had conducted the investigation, that it was impermissible to target any individual.

[00:22:42] Speaker 05:
Mr. Smith,

[00:22:44] Speaker 05:
was never questioned on any aspects of interfering with an investigation, yet he was charged with that.

[00:22:53] Speaker 05:
The proposing of a official in this case relied on the findings of the investigation when Mr. Smith was never apprised of the charge and given an opportunity to provide a statement.

[00:23:13] Speaker 05:
There's absolutely no evidence that Mr. Smith told Mr. Altomare what to say.

[00:23:22] Speaker 05:
There was never any claim that Mr. Altomare had informed management that there was a threat.

[00:23:29] Speaker 05:
Mr. Altomare was a probationary employee.

[00:23:31] Speaker 05:
That's why he was terminated.

[00:23:34] Speaker 05:
He didn't have the procedural due process protections.

[00:23:40] Speaker 05:
there is a distinction between Mr. Altamore and Mr. Smith.

[00:23:46] Speaker 05:
There is no distinction between Mr. Smith and Mr. Messinger.

[00:23:53] Speaker 05:
Mr. Messinger was not charged with violating the drinking policy and the only basis for

[00:24:06] Speaker 05:
Mr. Smith being charged with a violation of the drinking policy was that Mr. Altemar, two months after the events in question and after being questioned or interrogated for four hours, stated that he remembers seeing Mr. Smith holding a bottle of beer at 1 a.m.

[00:24:29] Speaker 03:
Mr. Friedman, as you can see, your red light is on.

[00:24:33] Speaker 04:
uh... uh... uh...