[00:00:30] Speaker 04: Okay, the next argued case is number 15, 3163 Williams against the United States Postal Service, Mr. Schoenhart. [00:01:06] Speaker 01: Thank you, Judge Newman. [00:01:07] Speaker 01: Good morning and may it please the court. [00:01:09] Speaker 01: In this case, we're asked to look back to the Stone line of cases that takes us back to 1999 and to determine whether, as this court held in Stone, any new and material ex parte communication that is presented during an adverse employment proceeding at an agency, of which the employee is not provided notice or an opportunity to respond, [00:01:31] Speaker 01: rises to the level of a due process violation. [00:01:33] Speaker 04: You know, it concerns me about your argument. [00:01:36] Speaker 04: If we agree and therefore eliminate the opportunity for whatever it was that was communicated ex parte, doesn't your client run the risk of an even more drastic remedy? [00:01:52] Speaker 04: Because the mitigating, I don't think anyone disagrees, that that communication [00:01:59] Speaker 04: was more likely than not mitigating. [00:02:01] Speaker 04: Isn't he now running the risk of just being entirely separated rather than demoted? [00:02:08] Speaker 01: Your Honor, for better or worse, any time we return an action to an agency for an entirely new and constitutionally correct proceeding, we run a risk that the result differs. [00:02:20] Speaker 01: And indeed, when we're looking at a case in which the ex parte community... It's worse than a risk. [00:02:25] Speaker 04: It's a probability. [00:02:29] Speaker 04: a probability that your client appreciates? [00:02:34] Speaker 01: Unfortunately, Your Honor, we cannot determine how great that probability is as what precise information that was provided is currently unknown. [00:02:42] Speaker 04: There's nothing to say it was anything other than mitigating. [00:02:45] Speaker 01: There is currently no evidence that it was anything other than mitigating. [00:02:49] Speaker 01: There is also no evidence as to precisely what... Nothing in either brief? [00:02:53] Speaker 04: Nobody says it was anything other than mitigating. [00:02:58] Speaker 04: Isn't there a risk that you're taking that that is confirmed, the sources of the communication, the nature of the communication is brought out? [00:03:12] Speaker 01: In an entirely new proceeding, Your Honor, the communication should not be part of the proceeding at all. [00:03:16] Speaker 01: But yes, Your Honor, there is a risk that Mr. Williams... I don't know if this is a new proceeding or not. [00:03:22] Speaker 04: It could be a new decision without the benefit of that communication. [00:03:27] Speaker 04: There was a decision. [00:03:28] Speaker 04: Apparently an internal resolution according to what you've both told us. [00:03:35] Speaker 01: There was no internal decision without the ex parte communication. [00:03:39] Speaker 01: There was a proposed removal. [00:03:41] Speaker 01: Then at the time of decision, ex parte information was brought into the proceedings without notice and opportunity to respond. [00:03:49] Speaker 02: Right. [00:03:49] Speaker 02: So the new proceeding would be presumably by a different decision maker who doesn't have the benefit of the ex parte communication, correct? [00:03:56] Speaker 01: Correct, Your Honor. [00:03:57] Speaker 02: So what Judge Newman's saying is a very real risk because if it in fact resulted in a lesser penalty, then Mr. Williams could end up actually facing that proposed removal. [00:04:11] Speaker 01: It is a risk, Your Honor. [00:04:13] Speaker 01: The reason I'm hedging on the question of probability is because without knowing precisely what information was in fact provided during the proceedings, it is difficult and in fact, in my view, impossible to determine whether and to what extent [00:04:26] Speaker 01: any mitigation could have been greater, lesser, or otherwise if things had proceeded differently. [00:04:34] Speaker 02: Is that the heart of your problem is that it's not so much a question of do we ever classify mitigating evidence as something that could rise to the level of a due process violation, but in your case, even though he says I only used it for mitigation because he has no recollection at all of what he received, he could very well have received [00:04:53] Speaker 02: aggravating material as well as mitigating material or maybe not given as much attention to additional mitigating material, you just don't have any clue what he got. [00:05:04] Speaker 01: As to the latter portion of your question, yes, Your Honor, in that we don't know what else he could have gotten, how it overall impacted what happened. [00:05:12] Speaker 03: Where precisely is his testimony? [00:05:14] Speaker 03: Where precisely, because I recall him [00:05:17] Speaker 03: saying he doesn't remember what was communicated to him. [00:05:20] Speaker 03: He doesn't even remember who communicated it to him. [00:05:23] Speaker 03: However, he remembers it being positive, and it was the basis for him deciding to not propose removal, but instead propose only demotion. [00:05:31] Speaker 03: Where is that testimony in here? [00:05:32] Speaker 03: Because I remember it, but I don't have it at my fingertips. [00:05:35] Speaker 01: Yes, Your Honor. [00:05:35] Speaker 01: In the appendix of pages 869 to 872, we have the cross-examination of Mr. Williams' attorney, during which the deciding official is questioned regarding [00:05:46] Speaker 01: how he received the ex parte communication, and what impact that had. [00:05:51] Speaker 03: And is my recollection of that testimony accurate, that he said, I don't remember who told it to me, and I don't remember precisely what they told me, but I remember that it caused me to decide to lower the sanction? [00:06:06] Speaker 01: Yes, Your Honor. [00:06:06] Speaker 01: At the appendix, page 869, the testimony is that it is correct that this ex parte communication was the basis [00:06:15] Speaker 01: for altering the penalty here, and then proceeding through the bottom of page 869, and then in separate questioning on pages 871 and 872, it's established that he did not recall from whom, from where, or what he ultimately received and relied upon. [00:06:32] Speaker 03: So what, I guess, what is it you think you would get upon a remand? [00:06:37] Speaker 03: You've already had the opportunity to cross-examine the deciding official, Mr. Mourning. [00:06:43] Speaker 03: He says, don't remember what, when, who, where, blah, blah, blah, blah, blah. [00:06:46] Speaker 03: Don't remember anything. [00:06:47] Speaker 03: Just remember it was helpful to the guy. [00:06:49] Speaker 03: And that's his testimony. [00:06:51] Speaker 03: So given that factual record, how is there an opening here for the idea that there was anything harmful or aggravating at all, number one, given what he said? [00:07:03] Speaker 03: I don't see how you could extrapolate to the idea that it was anything harmful. [00:07:08] Speaker 03: But moreover, I don't see how you think you could get anything more helpful [00:07:11] Speaker 03: since he's saying, I remember nothing other than it was helpful to the guy. [00:07:16] Speaker 03: So what would a remand give your client? [00:07:19] Speaker 01: I appreciate your concern, Your Honor. [00:07:20] Speaker 01: And I believe it dovetails with the opening portion of Judge O'Malley's question a moment ago. [00:07:25] Speaker 01: That is, what would happen if this were to go back? [00:07:28] Speaker 01: Judge Newman, you began the questioning here. [00:07:30] Speaker 01: And if things were to go back, presumably this would not be decided by the same deciding official, because that deciding official has already taken in ex parte information that is now unknown and unknowable as far as we can determine. [00:07:42] Speaker 01: That new deciding official reading the appropriate evidence that pursuant to 5 CFR 752.404 is part of a record here could come to any of a number of penalties. [00:07:56] Speaker 01: The US Postal Service does not have a table of penalties. [00:07:59] Speaker 01: That's also a record. [00:08:00] Speaker 03: But you do realize that the deciding official in this case, minus the ex parte information, was planning on removing your client. [00:08:07] Speaker 03: That was what he was planning on doing on the basis of the evidence without the ex parte communication. [00:08:13] Speaker 03: All the ex parte communication did was help your client. [00:08:16] Speaker 03: So why? [00:08:17] Speaker 03: I just don't understand for the life of me why you're here, because I just really see this ending up worse for your client, not better if it goes back. [00:08:25] Speaker 03: So I'm just so perplexed at what you think you're going to get if this goes back. [00:08:30] Speaker 03: If you extract the ex parte communication, you're back in the world where this guy thought removal was appropriate. [00:08:36] Speaker 03: Maybe the next guy won't think removal is appropriate, but I don't see how you're going to have any shot, reasonably, of getting anything better than demotion. [00:08:44] Speaker 03: I understand the due process point is sexy, and that's why you're here arguing it, no doubt. [00:08:48] Speaker 03: But I don't understand what you're going to get for your client out of it. [00:08:51] Speaker 01: I think, Your Honor, the critical issue here is that we do not know to what extent this information was, in fact, mitigating, whether it may also have been aggravating, and whether in isolation. [00:09:02] Speaker 03: No, we do know. [00:09:02] Speaker 03: He says it caused nothing. [00:09:04] Speaker 03: One thing we know for mourning. [00:09:06] Speaker 03: is that he said it only caused him to want to reduce the penalty. [00:09:10] Speaker 03: There's absolutely no testimony that was elicited that gives anything, even the slightest indication that there could have been any aggravating information conveyed to him. [00:09:19] Speaker 03: Nowhere at any point is there any foundation for that argument that you just made on this record. [00:09:25] Speaker 01: Your Honor, I believe that argument is inherent in the witness in that case and in the record as a whole having no information about what was conveyed. [00:09:35] Speaker 01: It's quite difficult to say that someone did not receive any aggravating information when that same someone says, I do not recall what, from whom, or from where I received any information. [00:09:48] Speaker 03: Except what he says is that the information I did get caused me to mitigate his penalty. [00:09:55] Speaker 01: Again, I appreciate your concern, Your Honor. [00:09:56] Speaker 01: If we look to the Douglas Factors worksheet, that is the only contemporaneous documentation of the design officers, [00:10:03] Speaker 03: And he does tell us one other thing. [00:10:04] Speaker 03: He says that what was conveyed to him was what your client presented at the 650 mediation. [00:10:12] Speaker 03: Correct? [00:10:12] Speaker 03: Doesn't he say what was conveyed to him was the information that your client presented at the 650 mediation? [00:10:19] Speaker 03: Those are the two facts we know. [00:10:22] Speaker 03: What was conveyed to him supposedly was only the information possessed by your client and presented. [00:10:27] Speaker 03: And number two was what caused him to mitigate the penalty. [00:10:32] Speaker 03: Doesn't that really bounds the universe of what he was told? [00:10:36] Speaker 01: That bounds the universe of his testimony. [00:10:38] Speaker 01: It does not necessarily bound the universe of what he was told, which is why we have due process protections in place. [00:10:44] Speaker 03: If we believe him, it certainly does. [00:10:47] Speaker 03: If the lower court found as a matter of fact that he was being truthful. [00:10:52] Speaker 01: If we believe him, then he understood that what was told to him was what Mr. Williams stated at the mediation. [00:10:59] Speaker 01: That does not mean that what was told to him was in fact what Mr. Williams stated at the mediation. [00:11:06] Speaker 01: He cannot know that as he was not personally at the mediation. [00:11:09] Speaker 01: And so here we're really shooting at an unknown and unknowable, and we cannot determine on that record what would or would not have happened absent these circumstances. [00:11:21] Speaker 04: He said he had decided that the offenses required separation. [00:11:27] Speaker 04: You have a record. [00:11:28] Speaker 04: You've had a trial. [00:11:30] Speaker 04: That's behind us. [00:11:33] Speaker 04: The only question now is what decision flows from it. [00:11:37] Speaker 04: And I share this view. [00:11:41] Speaker 04: It's hard to see how it could come out better. [00:11:45] Speaker 04: You're saying the ex parte communication was improper. [00:11:50] Speaker 04: So we agree. [00:11:51] Speaker 04: Yes, it was improper. [00:11:52] Speaker 04: Don't count that, this decision-maker or another. [00:11:57] Speaker 04: has the record, which is undisputed, or whether it's disputed or not, it's there, stating that these infractions occurred. [00:12:06] Speaker 04: I think most of them were admitted, maybe all of them. [00:12:11] Speaker 01: Your Honor, if I could make two final points in response before I reserve the remainder of my rebuttal time. [00:12:17] Speaker 04: Okay. [00:12:18] Speaker 01: First, during this discussion, we have not yet looked back to the Douglas Factors worksheet, the contemporaneous documentation [00:12:26] Speaker 01: associated with the deciding officer's penalty decision. [00:12:30] Speaker 01: In the Douglas Factors Worksheet, the 650 mediation is not referenced under Factors 4 or 11 regarding mitigation. [00:12:39] Speaker 01: And in fact, under Factors 4 and 11, the deciding officer said, no, I see no basis to mitigate the penalty. [00:12:48] Speaker 01: Under Factor 12, where the deciding officer references the 650 mediation, [00:12:55] Speaker 01: The deciding officer says, in view of what was said at the 650 mediation, I think another opportunity to be an employee here at the Postal Service is warranted. [00:13:05] Speaker 01: It is only later in testimony that the question of whether this is purely mitigating or mitigating versus aggravating came up at a subsequent proceeding before the MSPB. [00:13:15] Speaker 01: On the factual record, that is suggestive that there is at least the possibility that this had an impact on him that could have been [00:13:24] Speaker 01: aggravating and or mitigating. [00:13:27] Speaker 01: On the legal end of this, I think we cannot lose sight of the essential fact that the question we are deciding cannot be with the benefit of hindsight in any given case, whether the particular case would likely have been decided more in favor of or more adversely to any particular party, especially where we do not know for certain how that would come out. [00:13:52] Speaker 01: Rather, from a constitutional perspective, we need to determine whether the ex parte communication was material. [00:13:58] Speaker 01: And here, I think there can be no dispute but that it was material. [00:14:02] Speaker 03: Why? [00:14:02] Speaker 03: In Ward and in Stone, in both cases, we cite for understanding materiality for due process concerns to be so likely to cause prejudice [00:14:22] Speaker 03: that no employee can fairly be required to be subjected to deprivation of property under such circumstances. [00:14:28] Speaker 03: Tell me how the ex parte communication here was so likely to cause prejudice to this particular individual. [00:14:36] Speaker 03: Because due process, I don't believe, extends only to new and material information under our case law. [00:14:43] Speaker 03: I believe it extends to new and material information that is so likely to cause prejudice that no employee can be fairly required, et cetera, et cetera. [00:14:52] Speaker 03: So if that's my understanding of our case law, which is completely consistent with both Ward and Stone, what about this? [00:14:59] Speaker 03: And you have the burden of proof. [00:15:00] Speaker 03: This is your affirmative defense. [00:15:03] Speaker 03: So how have you established to me that there was an ex parte communication in this case that was so likely to cause prejudice to this employee? [00:15:12] Speaker 01: In this case, the only evidence we have as to how the ultimate penalty was determined, as to what [00:15:21] Speaker 01: particular factor impacted the decision maker and ultimately resulted in the setting of the penalty is the 650 mediation. [00:15:30] Speaker 01: That was the primary item mentioned in Factor 12. [00:15:32] Speaker 03: No, he goes through everything in the Douglas Factors, right? [00:15:35] Speaker 03: He discusses the length of employment of this employee and everything else. [00:15:38] Speaker 03: So the Douglas Factors seem to me to be complete and adequate in terms of... I don't see you appealing his failure to walk through the Douglas Factors. [00:15:50] Speaker 01: No, Your Honor, that's not our focus today. [00:15:53] Speaker 01: But in the Douglas Factors worksheet, the only item that was particularly called out as impacting the choice of remedy. [00:16:02] Speaker 03: To lower remedy, the factor that was called out to lower the choice of remedy. [00:16:08] Speaker 01: I'm not sure it's wholly fair to say a factor chosen to lower the remedy. [00:16:11] Speaker 01: It's in view of what you said here, 650 mediation, I'm willing to give you another chance at the agency. [00:16:19] Speaker 01: is suggestive that, but for this, there might have been a decision to remove. [00:16:24] Speaker 01: But it does not say, I recommend removal. [00:16:28] Speaker 01: I have chosen to mitigate down to a different penalty on this basis. [00:16:32] Speaker 01: That notion does not come out until the subsequent testimony in front of the administrative judge. [00:16:36] Speaker 03: I still don't feel like you answered my question, which was, tell me how you have proven, since it's your burden of proof, that the new and material evidence [00:16:46] Speaker 03: was, quote, so likely to cause prejudice that no employee can be fairly required to be subject to deprivation of property under such circumstances. [00:16:55] Speaker 03: So how have you established, since it's your burden of proof, that the new and material evidence, i.e. [00:17:00] Speaker 03: the ex parte communication, prejudiced your client? [00:17:05] Speaker 03: How have you established that? [00:17:07] Speaker 01: Your Honor, I don't believe that you're looking to the correct test. [00:17:12] Speaker 03: I'm quoting out of Ward. [00:17:14] Speaker 03: when we emphasize that the ultimate inquiry is whether the ex parte communication is so substantial and so likely to cause prejudice. [00:17:23] Speaker 03: So where is your prejudice? [00:17:25] Speaker 03: Where's your proof of prejudice? [00:17:26] Speaker 03: You're operating under the idea that new and material is in a vacuum. [00:17:31] Speaker 03: New and material is not in a vacuum. [00:17:32] Speaker 03: In both of these cases, it was said we emphasize the ultimate inquiry is whether the ex parte communication is, quote, so substantial and so likely to cause prejudice. [00:17:44] Speaker 03: That is the spin they put on new and material. [00:17:46] Speaker 03: You may not like it, but both cases say that expressly. [00:17:50] Speaker 03: That's what they mean by new and material. [00:17:52] Speaker 03: They don't mean new and material in the abstract, as you would like it to be used. [00:17:56] Speaker 03: They mean new and material that is so likely to cause prejudice to this employee. [00:18:02] Speaker 03: Where have you established that prejudice to this man? [00:18:05] Speaker 01: Your Honor, if I may, I have two responses. [00:18:07] Speaker 03: Yes, please answer. [00:18:09] Speaker 01: Thank you. [00:18:10] Speaker 01: The first is stone [00:18:13] Speaker 01: sets out a standard of new and material and several factors to consider in determining what is new and material. [00:18:20] Speaker 01: Those factors have been this court's guiding principles since then. [00:18:24] Speaker 01: And in Ward, and even subsequently in Young, this court has said where it is determined that the evidence was in fact relied upon to alter a decision, then the primary factor we need to focus on is factor one, [00:18:41] Speaker 01: of the stone factors, whether the information is new. [00:18:44] Speaker 03: You're running out the prejudice. [00:18:46] Speaker 03: In both cases, this quote is, I'm reading you a quote. [00:18:49] Speaker 03: This is the quote from Ward, and it's quoting stone. [00:18:52] Speaker 03: We emphasize the ultimate inquiry is whether the ex parte communication is so substantial and so likely to cause prejudice. [00:18:59] Speaker 03: You can't take the words new and material in a vacuum and extract out the language you don't like about these cases. [00:19:05] Speaker 03: These cases say new material and prejudicial. [00:19:08] Speaker 03: Both of them say that expressly. [00:19:10] Speaker 01: I appreciate that, Your Honor. [00:19:12] Speaker 01: That was getting to the second point of my response. [00:19:15] Speaker 01: The first being that I believe that's not the correct reading of the line of cases, that it is not new material, and a third-pronged prejudicial. [00:19:23] Speaker 01: But directly to where is the prejudice here? [00:19:27] Speaker 01: The prejudice here is in not knowing, even to this date, what information was brought in and whether that information could have or whether the proceedings otherwise could have resulted [00:19:39] Speaker 01: in a lesser penalty. [00:19:41] Speaker 01: We do not have a table of penalties at the United States Postal Service. [00:19:47] Speaker 01: We do not have a lengthy recitation in the Douglas Factors worksheet or later as to comparable penalties for comparable offenses, which means we are looking in a vacuum on the facts of this case as what would the appropriate remedy have been absent in ex parte communication that to this date we still do not know what it was. [00:20:07] Speaker 01: And the best we can do is provide a constitutionally correct proceeding in which the government employee can have the opportunity without procedurally improper ex parte communications to advocate his case and to hope for a constitutionally correct result. [00:20:29] Speaker 04: Thank you for the additional time. [00:20:37] Speaker 04: Mr. Hertzfeld. [00:20:38] Speaker 00: Good morning. [00:20:38] Speaker 00: May it please the court. [00:20:40] Speaker 00: The United States Postal Service respectfully requests that the court affirm the decision of the Merit Systems Protection Board, which properly concluded that the United States Postal Service acted appropriately in demoting Mr. Williams instead of removing him based on his misconduct. [00:20:54] Speaker 00: As the court has recognized already, the key issue here is penalty as opposed to the misconduct itself. [00:21:02] Speaker 00: Mr. Williams did not appeal to the board. [00:21:04] Speaker 00: or to this court, the fact that he was engaged in misconduct, that is a... Well, very often these cases do turn on the penalty. [00:21:14] Speaker 02: I mean, when we see these ex parte communications, it's usually the penalty that's affected by that. [00:21:20] Speaker 00: That's correct, Your Honor. [00:21:21] Speaker 00: And certainly that's the case here when it comes to due process violation. [00:21:25] Speaker 00: I merely wanted to reiterate the fact that something that each of the judges has already stated that if this does go back down, [00:21:32] Speaker 00: The misconduct is still in place. [00:21:34] Speaker 00: The finding of misconduct will remain in place. [00:21:36] Speaker 00: It will be rest judicata. [00:21:37] Speaker 00: It will be the law of the case. [00:21:39] Speaker 00: The only issue will be the penalty and whether or not he should be removed. [00:21:43] Speaker 04: But do you agree that as a matter of principle, the ex parte communication was improper, was probably improper, communicating what had transpired in the mediation? [00:21:57] Speaker 00: We can see that, Your Honor. [00:21:58] Speaker 00: It was in fact improper. [00:22:00] Speaker 00: Mr. Wins was informed that the mediation proceeding was going to be confidential and that it would not be provided to the decision maker. [00:22:08] Speaker 02: So how does that concession square with the fact that we set in stone that these due process violations are not subject to a harmless error analysis? [00:22:19] Speaker 02: That's really what you're arguing, right? [00:22:21] Speaker 02: It's harmless because it was mitigating. [00:22:23] Speaker 00: Well, we're not yet necessarily. [00:22:26] Speaker 00: Clearly what we're saying is that it didn't meet the new and material standard. [00:22:29] Speaker 00: I mean, that's one of the arguments we make. [00:22:31] Speaker 00: We also make the argument at the close of part of our brief as it could be implied that the board made that, in fact, mitigating information can never create a due process violation because it's mitigating as opposed to aggravating. [00:22:47] Speaker 02: But that sounds like a harmless error analysis, which we specifically said was not appropriate in this context. [00:22:52] Speaker 00: Your honor, that is true. [00:22:54] Speaker 00: And it could come under the standard that Judge Moore mentioned earlier, which was that it's so substantial and so likely to cause prejudice that it undermines the due process guarantee. [00:23:05] Speaker 02: But again, when you say it could come over, as I read these cases, that that piece, so substantial, would seem to be disclosure of anything that occurred in what was supposed to be a confidential mediation. [00:23:18] Speaker 02: That in other words, that's where your substantiality comes from. [00:23:21] Speaker 02: And then because you can't do harmless error analysis, you're not supposed to really look at exactly what was said. [00:23:28] Speaker 00: I understand that, Your Honor. [00:23:29] Speaker 00: But I think the concern here was you do have to go through the factors that the court laid out in Stone. [00:23:36] Speaker 00: And you have to come to the ultimate conclusion that the board did, in fact, come to, which was that this information was not so substantial and so prejudicial, which is the standard that this court laid out in Stone and in Ward. [00:23:49] Speaker 00: If you go through the factors, you find that it does appear to be cumulative information. [00:23:54] Speaker 00: As the court has already addressed, we know that it's mitigating. [00:23:57] Speaker 00: That was a finding, in fact, by the administrative law judge. [00:24:00] Speaker 00: And in fact, the administrative law judge specifically asked Mr. Mourning, did you consider any information outside of the notice of opposed removal? [00:24:10] Speaker 00: And he answered, no. [00:24:11] Speaker 00: I did not. [00:24:11] Speaker 02: No negative information. [00:24:13] Speaker 02: Actually, this helps you more. [00:24:15] Speaker 02: What he asked was, did you get any negative information that went beyond the notice of proposed removal? [00:24:22] Speaker 02: And he said, no. [00:24:23] Speaker 00: That is absolutely correct, Your Honor. [00:24:25] Speaker 00: And taking together with the fact that it was the facts presented by Mr. Williams himself and the fact that the burden is on Mr. Williams to prove that this was other than cumulative, based on that alone, this court can affirm. [00:24:39] Speaker 02: I guess my problem is with your [00:24:42] Speaker 02: bright line that you try to draw with the notion that if you drill down, the information was mitigating. [00:24:49] Speaker 02: And because it came from a confidential mediation, I have a hard time saying that that isn't essentially just a harmless error analysis. [00:25:00] Speaker 02: Your cumulative argument seems to be a better one. [00:25:03] Speaker 00: And we concur that the court does not need to go as far as concluding that all mitigating information is always [00:25:10] Speaker 00: going to be something that doesn't violate due process. [00:25:14] Speaker 00: I think you could stick to the facts here and that's how we read the board's decisions as essentially sticking to the facts. [00:25:20] Speaker 00: It laid out the stone factors and then it came to the conclusion based on the so substantial and so likely to cause prejudice standard. [00:25:29] Speaker 00: That was the ultimate basis of the board's determination. [00:25:34] Speaker 00: So based on that, if the court has no further questions, [00:25:39] Speaker 00: We respectfully request that the court affirm. [00:25:45] Speaker 04: Any more questions? [00:25:46] Speaker 04: Okay, thank you. [00:25:48] Speaker 04: Mr. Schoenhart, you have a couple of minutes. [00:25:55] Speaker 03: Mr. Stonehart, would you reconcile for me, because I have a little trouble with it, from Stone, the language I quoted you, which is in Stone and Ward, I mean, it's here in multiple places, the so substantial and so likely to cause prejudice language. [00:26:08] Speaker 03: But Judge O'Malley quoted, and she's quite correct, that in another place, in the opinion, it says there's no harmless error analysis. [00:26:16] Speaker 03: So how do you reconcile all of those to make sense of the due process law here? [00:26:25] Speaker 01: Your Honor, I think this is clarified in stone that if the ex parte communication is ultimately found to be new and material, following the factors provided in stone, Your Honor has identified the ultimate inquiry. [00:26:43] Speaker 01: Then that rises to a level of a due process issue and there is no harmless error analysis. [00:26:49] Speaker 03: If... So it's new and material. [00:26:52] Speaker 03: But see, you understand that in the context of both Stone and Ward, both of those were aggravating communications, communications of prior bad acts by the employee, right? [00:27:04] Speaker 03: So both of those went to the heart of the notice and fairness concern, right? [00:27:09] Speaker 03: Those are the facts of both Ward and Stone, correct? [00:27:11] Speaker 01: Yes, Your Honor. [00:27:12] Speaker 03: Yes. [00:27:13] Speaker 03: And so in the context of somebody communicating the deciding official bad stuff about an employee that could [00:27:20] Speaker 03: and possibly did impact the decision, that's where the due process concerns would absolutely be at their highest. [00:27:27] Speaker 03: They'd have to be, because fairness and notice demand that you have a right to confront your accuser. [00:27:33] Speaker 03: You have a right to know all of the bad things about you that could possibly be forging the basis for the decision. [00:27:39] Speaker 03: And so that's why I'm just having a little trouble reconciling in stone when they say, [00:27:47] Speaker 03: Not every ex parte of communication is a procedural defect so substantial and so likely to cause prejudice. [00:27:53] Speaker 03: I feel like they meant for the new and material prong. [00:27:56] Speaker 03: I understand your definition of material, and it comports with everything I know to be the correct definition of material affecting outcome. [00:28:03] Speaker 03: I get it. [00:28:04] Speaker 03: But at least in Stone and Ward, they seem to work into that idea of materiality likely to cause prejudice. [00:28:11] Speaker 03: Right? [00:28:12] Speaker 03: I mean, I don't know how else to reconcile this prejudice notion. [00:28:17] Speaker 01: Well, Your Honor, the second portion of my response as to how to get this out of Ward is that Ward then suggests if the communication does not rise to a level of a due process concern, it may still be a procedural defect. [00:28:32] Speaker 01: And we then shift out of the constitutional analysis to, in fact, a harmless error analysis. [00:28:37] Speaker 01: But we take these as two different approaches. [00:28:40] Speaker 01: First, we look at the constitutional significance. [00:28:43] Speaker 01: If it does not rise to a level of constitutional significance, [00:28:46] Speaker 01: then we tip back to procedural significance. [00:28:49] Speaker 01: And there, again, on a harmless error analysis, the definition of harmless error at the agency level is an error that is likely to have caused the agency to reach a conclusion different than it otherwise would have. [00:29:03] Speaker 01: Not worse. [00:29:03] Speaker 02: Isn't the distinction that you need to make, I mean, you're still saying, you're basically saying the minute it's new in material, that's the end of the inquiry. [00:29:11] Speaker 02: And I understand how the case is. [00:29:15] Speaker 02: build in this substantiality analysis into the new and material. [00:29:20] Speaker 02: But isn't it that the distinction that you want to make is that if it's new and material and it's the fact that he wears red tennis shoes to work versus new and material and it's a disclosure of everything that happened at the confidential mediation, that that's where the due process inquiry would end and you would not go into a harmless error analysis. [00:29:44] Speaker 01: I think, Your Honor, that as I understand the hypothetical you're putting out, that's generally the case. [00:29:50] Speaker 01: I think that would largely be built into the materiality analysis as to whether it's red shoes or the totality of what had been presented, how that is deemed to be material. [00:30:02] Speaker 01: I think that is part and parcel of a singular analysis. [00:30:06] Speaker 01: It's if we do not rise to that level of materiality, if it is only whether he wore red shoes, then clearly we might say there's no due process violation, unless it's a uniform code. [00:30:17] Speaker 01: And then we move on to harmless error analysis. [00:30:18] Speaker 03: Let me just make sure I understand how your view of new and material would affect cases in general. [00:30:27] Speaker 03: So I want to make sure. [00:30:29] Speaker 03: What if in this case we did know? [00:30:31] Speaker 03: What if the deciding official told us precisely what had been communicated to him? [00:30:35] Speaker 03: What had been communicated from the mediation was that Mr. Williams is a really nice guy who worked for 27 years for the post office and has never been in trouble before. [00:30:48] Speaker 03: I know those are not precisely the facts of this case. [00:30:51] Speaker 03: I know nothing about whether he's a nice guy, but I know that he did have some prior disciplinary issues in the PTO, I mean, in the post office. [00:30:59] Speaker 03: But putting those aside, supposedly what was communicated to him was, look, he's a really nice guy. [00:31:03] Speaker 03: Everybody really likes him. [00:31:05] Speaker 03: and he's worked for the post office for a long time, you should give him another chance. [00:31:08] Speaker 03: And suppose that's what the deciding official says. [00:31:11] Speaker 03: This is verbatim what was communicated to me. [00:31:12] Speaker 03: It was communicated to me by a supervisor, from the mediation. [00:31:15] Speaker 03: This is what was taken away. [00:31:18] Speaker 03: And suppose that he then says, and yes, that affected my decision to lower his sanction. [00:31:25] Speaker 03: That is still new and material under your definition, because it is information that your client didn't have the opportunity to respond to. [00:31:32] Speaker 03: But it's clear that it was only positive, and it's clear that the only result was to lower the sanction. [00:31:38] Speaker 03: You still think this procedure would be infirmed and due process would require vacating and remanding under those circumstances? [00:31:46] Speaker 01: If the employee so requested, Your Honor, yes. [00:31:49] Speaker 01: I believe that the analysis in stone, albeit in the context of an aggravating communication, ward, albeit in the context of an aggravating communication, the analysis in stone is clear. [00:32:01] Speaker 01: that an employee has a right to be aware of the charges and the evidence presented, not just the negative evidence, but also the positive evidence. [00:32:09] Speaker 01: So the employee has the opportunity to address both the negative and the positive and to provide the opportunity to allow that to impact the case. [00:32:19] Speaker 01: In fact, I think this goes back to your questioning a moment ago, Judge O'Malley, that based on the transcript in front of the administrative judge, it would appear that [00:32:31] Speaker 01: The only evidence the design official got was not aggravating, was not negative. [00:32:36] Speaker 01: That is in fact what his testimony was. [00:32:39] Speaker 01: He doesn't quite square with the fact that he has no recollection of what he got. [00:32:44] Speaker 01: It's quite difficult for someone to remember, I didn't get anything negative, but I also have no recollection of what I got at all from whom or where. [00:32:54] Speaker 04: But you had an opportunity to cross-examine, to press? [00:32:58] Speaker 04: Whether he had no recollection, perhaps he was protecting the informant. [00:33:04] Speaker 04: Who knows why, but that's what he said. [00:33:07] Speaker 04: And again, and he also left absolutely no doubt, but that these infractions would otherwise have resulted in dismissal. [00:33:18] Speaker 04: And this is really where we started. [00:33:23] Speaker 04: And in my thinking, the concern for the client [00:33:27] Speaker 04: that this is a risk that the client is willing to take, that he's fired completely with a remand and the elimination of the effect of the communication, that this is a nice guy, a veteran of the post office, all the rest of it. [00:33:54] Speaker 01: Your Honor, two brief responses. [00:33:57] Speaker 01: First is my understanding that Mr. Williams would like the benefit of an entirely new and constitutionally correct proceeding that may result in a lesser penalty, that may result in a greater penalty, but he would then have the full benefit of the due process afforded to him. [00:34:14] Speaker 01: As to the opportunity to cross-examination that was ultimately performed or provided, the important thing that we keep in mind is that that was a post-decision opportunity to cross-examine [00:34:26] Speaker 01: during proceedings before the Merit Systems Protection Board. [00:34:29] Speaker 01: That was not a pre-decisional opportunity to take on the evidence that had been presented, which is what is required constitutionally in the stone line of cases and by the Supreme Court in Lauderdale. [00:34:43] Speaker 01: I know I've exceeded my time. [00:34:45] Speaker 04: Any more questions? [00:34:45] Speaker 04: Thank you, Your Honor. [00:34:48] Speaker 04: Thank you both. [00:34:48] Speaker 04: The case is taken under submission. [00:34:51] Speaker 04: That concludes our argued cases for this morning. [00:34:55] Speaker 00: All rise. [00:34:58] Speaker 00: The honorable court is adjourned until tomorrow morning at 10 o'clock AM.