[00:00:01] Speaker 02:
Next case is Gregory Baca versus the Department of Justice, 2016-23-51.

[00:00:09] Speaker 02:
Mr. Baca.

[00:00:10] Speaker 03:
May it please the court.

[00:00:15] Speaker 03:
Good morning, Your Honor.

[00:00:16] Speaker 03:
This is Gregory Baca for the petitioner and employee.

[00:00:19] Speaker 03:
This case is about the appropriate forum and the appropriate remedy when an agency decides to downsize an overstaffed office and does so on the basis

[00:00:30] Speaker 03:
of pretextual performance deficiencies to avoid the statutory consequences of a formal reduction in force, or RIF.

[00:00:38] Speaker 01:
But you didn't actually appeal the determination with respect to the unacceptable performance, did you?

[00:00:46] Speaker 03:
The facts in the performance deficiencies were part of the issue that was appealed.

[00:00:54] Speaker 03:
In other words, the facts are all an inherent part of it.

[00:00:57] Speaker 03:
Now, the government

[00:01:00] Speaker 03:
Judge O'Malley is arguing that that had to be going through chapter 43, that there had to be a, quote, direct challenge.

[00:01:13] Speaker 03:
Yet if we look in the appendix, appendix 8085, when the challenge was made,

[00:01:25] Speaker 03:
The government argued that they couldn't bring up those issues.

[00:01:29] Speaker 03:
It was too late.

[00:01:30] Speaker 03:
It was the 45 days that expired.

[00:01:34] Speaker 01:
When which challenge was made?

[00:01:36] Speaker 03:
When the challenge was made to the EEOC, to the agency council.

[00:01:41] Speaker 01:
Here's the problem is that your argument presupposes that the removal was all pretextual.

[00:01:52] Speaker 01:
In other words, that there was no

[00:01:54] Speaker 01:
basis for saying he performed in an unacceptable manner.

[00:01:59] Speaker 01:
But we've got a final finding.

[00:02:00] Speaker 01:
They performed in an unacceptable manner, and it was not appealed.

[00:02:04] Speaker 01:
So don't we have to begin with the premise that we are talking about someone who was discharged for unacceptable performance?

[00:02:10] Speaker 01:
And then the question is whether you are allowed to discharge someone for unacceptable performance if they happen to be a preference-eligible veteran?

[00:02:19] Speaker 03:
The answer is that the facts, those same facts, are relevant to the

[00:02:26] Speaker 03:
to the performance claim.

[00:02:28] Speaker 03:
In other words, the same facts apply.

[00:02:31] Speaker 03:
And those were raised in Appendix.

[00:02:33] Speaker 03:
If we look at Appendix 20 to 34, those were always.

[00:02:37] Speaker 03:
It's not like they were kept silent.

[00:02:39] Speaker 03:
All those same facts were raised.

[00:02:41] Speaker 03:
The question is whether it has to go through an EEO complaint.

[00:02:46] Speaker 03:
The government is saying that it has to.

[00:02:50] Speaker 03:
The government is saying that

[00:02:53] Speaker 03:
Oh, you had to appeal the performance.

[00:02:59] Speaker 03:
But if you look at the actual claim that was made, it was the EEO.

[00:03:03] Speaker 03:
It was age discrimination.

[00:03:05] Speaker 03:
There's no reason that age discrimination, that the performance has to be part of age discrimination as opposed to VEOA.

[00:03:15] Speaker 03:
In other words, it's the same facts, Your Honor.

[00:03:17] Speaker 03:
So there's no reason why the facts can be only considered in one context and not in the other.

[00:03:23] Speaker 03:
Again, especially in this stage of the proceedings, where the facts have to be assumed in the employee's favor.

[00:03:30] Speaker 01:
So we have an unappealed determination that he was removed for unacceptable conduct or unacceptable performance.

[00:03:40] Speaker 03:
I would invite, where in the record does it say that?

[00:03:43] Speaker 03:
It doesn't say that.

[00:03:45] Speaker 03:
In other words, it doesn't say that that was the basis for the EEO complaint.

[00:03:49] Speaker 01:
Now, the government... No, he's saying that was the basis for his removal from employment, right?

[00:03:56] Speaker 03:
That was the basis for removal from employment.

[00:03:58] Speaker 03:
And at the very outset, this was part of all the facts pertaining to that were incorporated and were part of the complaint made by the employee.

[00:04:12] Speaker 03:
So in other words, the Chapter 43, the way the agency

[00:04:19] Speaker 03:
did the chapter, they include it as part of the age discrimination case.

[00:04:27] Speaker 03:
But there's no reason that there has to be age discrimination.

[00:04:30] Speaker 03:
It's no more relevant to age discrimination than it is to veterans' preference discrimination.

[00:04:36] Speaker 01:
Are you arguing that a preference eligible veteran can't be removed for unacceptable performance?

[00:04:44] Speaker 03:
No.

[00:04:45] Speaker 03:
That's the argument that the government is putting into the employees'

[00:04:49] Speaker 03:
That's the government characterization of the employee's argument.

[00:04:53] Speaker 03:
But in fact, here we have as a fact that the office was downsized.

[00:05:00] Speaker 03:
The employee was never replaced.

[00:05:02] Speaker 03:
So this is not going to be something where we're just going to say, oh, there's automatically a veteran's preference claim in every performance claim.

[00:05:09] Speaker 03:
No.

[00:05:09] Speaker 03:
Because here we have the fact that there was a downsizing.

[00:05:13] Speaker 03:
It was a three-person office, and it went to a two-person office.

[00:05:16] Speaker 03:
And the government said that this is barely a two-person office.

[00:05:21] Speaker 03:
This is not a three-person office.

[00:05:23] Speaker 03:
So therefore, this was a downsizing.

[00:05:25] Speaker 03:
That's not disputed.

[00:05:26] Speaker 03:
That's undisputed.

[00:05:27] Speaker 03:
That's in the record.

[00:05:28] Speaker 03:
So it's not a case of somehow importing a veteran's preference to every single time

[00:05:34] Speaker 00:
When you say it was a downsizing, ultimately they chose not to replace the employee who was removed.

[00:05:45] Speaker 00:
But it doesn't demonstrate that their intent was, when they removed him, was to reduce the size of the office.

[00:05:52] Speaker 00:
And I think that's a critical difference.

[00:05:55] Speaker 00:
A RIF requires an intention to reduce the size of an office and layoffs as a result of that intention.

[00:06:04] Speaker 00:
At least this record demonstrates an intention to remove an employee who they thought wasn't performing according to their standards, and then a decision not to replace.

[00:06:16] Speaker 03:
Well, Judge Moore, that's certainly what the government argues.

[00:06:19] Speaker 03:
However, if we look at the totality of the facts and circumstances, and again, we have to assume the facts in favor of the employee.

[00:06:29] Speaker 03:
And we look at what happens.

[00:06:30] Speaker 03:
We have the evidence that was submitted.

[00:06:32] Speaker 03:
It was not rebutted.

[00:06:33] Speaker 00:
Wait, why do I assume the facts in favor of the employee?

[00:06:35] Speaker 00:
I thought my standard of review was arbitrary capricious abuse of discretion.

[00:06:39] Speaker 00:
I thought this was a final MSPB decision.

[00:06:41] Speaker 03:
No, but that's what the MSPB is supposed to be doing.

[00:06:45] Speaker 00:
And then they didn't what I'm supposed to do on appeal is to decide whether their decision was arbitrary Capricious or an abuse of discretion or otherwise not in accordance by law So this is not a scenario where I have some de novo fact-finding ability.

[00:07:03] Speaker 00:
In fact, I never have no Yes, yes judge more but the MSPB made these factual findings that

[00:07:09] Speaker 00:
that this employee was removed for cause and then the agency decided not to rehire.

[00:07:15] Speaker 03:
What can I do about that?

[00:07:17] Speaker 03:
That was the abuse of discretion.

[00:07:19] Speaker 03:
They made factual findings when there was no evidence.

[00:07:22] Speaker 03:
It's direct in contradiction to the evidence.

[00:07:25] Speaker 00:
Why?

[00:07:26] Speaker 00:
What evidence is there that the agency intended to reduce the size of the office and made

[00:07:33] Speaker 00:
And that was the reason they eliminated this employee.

[00:07:37] Speaker 03:
The evidence is set forth in appendix pages 20 to 020 to 043 in the statement that was given that shows the totality of the circumstances.

[00:07:48] Speaker 03:
So that's all.

[00:07:52] Speaker 00:
What evidence?

[00:07:52] Speaker 00:
If you want to cite evidence, tell me what is the precise evidence that shows

[00:07:56] Speaker 00:
The government made a strategic decision to reduce the size of the office and then got rid of this employee in accordance with that decision.

[00:08:05] Speaker 03:
Some of that evidence includes the budget, the fact that the employee was the highest paid attorney, the fact that the supervisor asked about trying to get rid of the other attorney, asking when that other attorney was going to be retiring or where his spouse worked.

[00:08:25] Speaker 03:
They were looking to remove the number of people.

[00:08:28] Speaker 03:
The fact that they transferred someone there at the same time that the spouse was transferred, so it was they brought someone in.

[00:08:35] Speaker 03:
If you look at all the circumstances, I would encourage, Your Honors, to please read appendix pages 20 to 43 to look at the totality of the circumstances, which were just ignored by the board.

[00:08:49] Speaker 03:
That was the abuse of discretion was ignoring the fact.

[00:08:56] Speaker 03:
Maybe if the court has no other questions, can I save?

[00:09:00] Speaker 03:
Well, I guess I still have more for rebuttal.

[00:09:01] Speaker 03:
Can I save?

[00:09:02] Speaker 02:
You can use it or save it.

[00:09:04] Speaker 02:
Either way.

[00:09:07] Speaker 03:
One issue that was raised, for example, was jurisdiction.

[00:09:10] Speaker 03:
The government was arguing that there's no jurisdiction.

[00:09:13] Speaker 03:
And of course, jurisdiction can be raised at any time.

[00:09:16] Speaker 03:
But I think the fact that they didn't even mention it in their opening brief kind of shows the weakness of their argument that there was no jurisdiction.

[00:09:27] Speaker 03:
If the court were inclined to consider the government's alternative argument, the employee would argue that the failure of the agency across appeal, or even file a statement of disagreement, certainly suggests the pro forma nature of the agency's jurisdictional argument.

[00:09:43] Speaker 01:
But Judge Braden found that there was jurisdiction.

[00:09:46] Speaker 03:
That's correct.

[00:09:47] Speaker 03:
Although they didn't find it as to the discontinued service due to involuntary retirement provision.

[00:09:55] Speaker 03:
And that because I think the board just had a misunderstanding that the employee is not claiming that he's entitled.

[00:10:02] Speaker 03:
In other words, there's no dispute that the employee was removed and that as a consequence, he had to take this involuntary retirement.

[00:10:08] Speaker 03:
I mean, it's already a fact.

[00:10:10] Speaker 03:
So I think that the board just assumed that the employee was trying to get an involuntary retirement.

[00:10:17] Speaker 03:
Whereas, in fact, he already has it.

[00:10:19] Speaker 03:
But I mean, that does show the level of care that the board gave.

[00:10:23] Speaker 03:
In other words, this was very slipshod.

[00:10:27] Speaker 03:
They didn't carefully review the facts in this matter.

[00:10:29] Speaker 03:
I'd like to reserve the remaining argument.

[00:10:31] Speaker 02:
We will do that.

[00:10:32] Speaker 03:
Thank you.

[00:10:33] Speaker 03:
Thank you.

[00:10:36] Speaker 02:
Mr. McBurney?

[00:10:38] Speaker 04:
Yes, Your Honor.

[00:10:41] Speaker 04:
Good morning.

[00:10:41] Speaker 04:
May it please the court.

[00:10:43] Speaker 04:
The issue in this case is whether the Merit Systems Protection Board was correct in declining the petitioner's invitation to essentially import veteran preference rights under the Veterans Employment Opportunity Act into a for-cause removal.

[00:10:58] Speaker 04:
The record in this case is very clear that the claim brought before the board and currently before this court is not a Chapter 43 challenge.

[00:11:06] Speaker 04:
The petitioner was clear

[00:11:07] Speaker 00:
But you know you one of the board even the initial decision and the board's decision both sort of immediately cast aside the idea this could have been a riff because they say no action via a rift was undertaken pursuant to 5 CFR 315 or 432 and so it's almost Basically, and I understand those are the regulatory provisions that explain what has to be done to undertake a riff

[00:11:35] Speaker 00:
Suppose that there were five bazillion emails in this record, where various people within the government were saying, we've got to cut that office down to two people.

[00:11:45] Speaker 00:
We don't have the budget for three people there.

[00:11:47] Speaker 00:
We've got to reduce it to two people.

[00:11:49] Speaker 00:
But they never actually undertook a rift pursuant to these regulations.

[00:11:53] Speaker 00:
But suppose this record contained evidence, which it does not, indicating a clear intent on the part of the decision makers to get rid of somebody in that office for the sole purpose of reducing the size because they don't have the money to keep paying three attorneys.

[00:12:05] Speaker 00:
Are you saying that there could never be a firing pursuant to a riff under those circumstances because it wasn't announced under 5 CFR 35?

[00:12:18] Speaker 00:
You see what I'm saying?

[00:12:19] Speaker 04:
I do.

[00:12:20] Speaker 04:
And no, Judge Moore.

[00:12:21] Speaker 04:
I think in a scenario where there were evidence in the record, which certainly isn't this case, but if you had a record that showed that, in fact, the agency's purpose was not only to reduce the headcount, but to reduce the headcount of someone in particular

[00:12:35] Speaker 04:
that they would not be able to reduce if they went through a riff, then that could be something that could be raised in a Chapter 43 challenge.

[00:12:43] Speaker 04:
And in a Chapter 43 challenge, the employee could say, well, first of all, all these arguments for why my performance was insufficient are not legitimate.

[00:12:52] Speaker 04:
And here's the reason why my performance actually was satisfactory.

[00:12:55] Speaker 04:
Furthermore, as an affirmative defense, and I think it's subsection B11 and B12, which refers to if the purpose for a decision is really to avert someone's preference rights,

[00:13:05] Speaker 04:
I think that's an argument that could be raised in theory under Chapter 43.

[00:13:09] Speaker 04:
Now, it would run into kind of the same circular problems because, again, that theory would assume not only that the agency wants to reduce headcount, but that they want to specifically avoid reducing the headcount of whoever would be first in line to be removed under a riff.

[00:13:26] Speaker 01:
I think that's his whole point.

[00:13:28] Speaker 01:
This is his whole argument, is that

[00:13:30] Speaker 01:
They brought in this husband and wife, and that's who they wanted in the office.

[00:13:34] Speaker 01:
And they wanted to get rid of him, so they used this excuse.

[00:13:37] Speaker 01:
And I mean, that is his point.

[00:13:39] Speaker 01:
So you're just saying that he's procedurally in the wrong vehicle to make that point?

[00:13:45] Speaker 01:
You described exactly his argument, as I understand it.

[00:13:48] Speaker 04:
Right.

[00:13:49] Speaker 04:
And the government's position is, if that argument were going to be made, it would have to be made, if it's viable at all, as a Chapter 43 challenge.

[00:13:57] Speaker 00:
And in this case, in fact... Would you mean, like, in his termination proceeding as distinct from something else?

[00:14:03] Speaker 00:
I mean, where would it be made?

[00:14:05] Speaker 04:
It would be made exactly where Mr. Baca, in fact, made it.

[00:14:07] Speaker 04:
I mean, Mr. Baca had a choice.

[00:14:09] Speaker 04:
He could have raised this argument directly with the board, or he could have raised it with the EEO.

[00:14:16] Speaker 04:
He chose to raise his Chapter 43 challenge with the EEO.

[00:14:19] Speaker 04:
He included with that an age discrimination claim, but he made all of these same arguments in that EEO proceeding.

[00:14:24] Speaker 04:
And initially, when this case was brought before the board,

[00:14:28] Speaker 04:
The board interpreted the claim as encompassing not only this VEOA claim that we see, but also the Chapter 43 challenge and also a USERRA claim.

[00:14:39] Speaker 04:
And the petitioner was very, very clear on the record below that that was not his intention.

[00:14:44] Speaker 04:
He was not arguing a Chapter 43 challenge to his termination here.

[00:14:48] Speaker 04:
He was only raising the VEOA claim.

[00:14:50] Speaker 04:
He intended to pursue the Chapter 43 challenge exclusively in front of the EEO.

[00:14:56] Speaker 04:
And so the board eventually said,

[00:14:57] Speaker 04:
Okay, if that's what you want to do, that's fine.

[00:15:00] Speaker 04:
Whenever that EEO claim is exhausted, if you want to then bring the appeal to the board, you can within 30 days of an EEO decision.

[00:15:07] Speaker 04:
The EEO decision was April 27th.

[00:15:11] Speaker 04:
No appeal to the board was brought.

[00:15:13] Speaker 04:
So the petitioner in this case made a deliberate decision only to raise a VEOA claim here.

[00:15:19] Speaker 04:
And so whether in some other hypothetical case, you could have a scenario where the record is so clear that this was really a combination of

[00:15:27] Speaker 04:
an agency's desire to avoid a riff and to, for some improper purpose, and of course that's the other step, right, was there an improper reason that they wanted to terminate the employee in particular as opposed to what the reason was here and what the record shows, that the employee simply had insufficient performance and was appropriately removed under that standard.

[00:15:47] Speaker 04:
Whether you could have a scenario where that case might be viable, it certainly isn't this case where there is no Chapter 43 challenge before the board and there is simply a VEOA claim.

[00:15:57] Speaker 04:
And the VEOA is simply not implicated by the arguments being raised.

[00:16:04] Speaker 04:
So for those reasons, the board's decision to dismiss for failure to state a claim was appropriate and correct, and we'd ask the court to affirm.

[00:16:12] Speaker 04:
Alternatively, as we raised in our briefs, the board also could have and should have simply dismissed the VEOA claim for lack of jurisdiction, because the allegations raised here simply do not implicate a statute relating

[00:16:25] Speaker 04:
to veterans' preference.

[00:16:26] Speaker 04:
This is a Chapter 43 removal.

[00:16:29] Speaker 04:
There's no Chapter 43 challenge.

[00:16:30] Speaker 04:
The EOA is simply not implicated by this.

[00:16:33] Speaker 04:
The Court could affirm on that reason as well.

[00:16:37] Speaker 04:
If the Court does not have any further questions.

[00:16:39] Speaker 02:
Thank you, Counsel.

[00:16:40] Speaker 04:
Thank you, Your Honors.

[00:16:41] Speaker 02:
Mr. Buck has some rebuttal time.

[00:16:47] Speaker 03:
Thank you, Your Honor.

[00:16:49] Speaker 03:
When I spoke before, I wasn't looking at the page.

[00:16:51] Speaker 03:
So now I have, I've looked at my reply on page five

[00:16:55] Speaker 03:
And I cite some specific pages in the appendix about the claim that was made, the imputative Chapter 43 claim.

[00:17:03] Speaker 03:
And if we look at that, and specifically, I'm citing to page appendix 75, 78, 80, and then 86 to 88.

[00:17:11] Speaker 03:
And if we just go and look at those page by page and see this complaint of discrimination, this complaint of discrimination that actually starting on page 074, that's where the complaint is filed.

[00:17:25] Speaker 03:
And then on page 07, again, it's Appendix 77, that was the amended complaint.

[00:17:34] Speaker 02:
But counsel, discrimination issues don't belong in this court.

[00:17:39] Speaker 02:
Right.

[00:17:40] Speaker 02:
And in fact, as the case is presented to us now, the performance question isn't before us.

[00:17:45] Speaker 03:
That's right.

[00:17:46] Speaker 03:
That's right.

[00:17:47] Speaker 02:
And isn't it clear and well established that a VEOA claim can't be made when the question is performance?

[00:18:00] Speaker 03:
The facts.

[00:18:01] Speaker 03:
That's a case not before us.

[00:18:04] Speaker 03:
The VEO claim encompasses the same facts as the performance.

[00:18:08] Speaker 03:
And in fact, though, what I'm getting at is that the agency refused to consider

[00:18:17] Speaker 03:
to consider the performance.

[00:18:21] Speaker 03:
If you look here on the appendix, page 77.

[00:18:27] Speaker 01:
But these pages are in connection with the age discrimination claim, right?

[00:18:32] Speaker 03:
In the age discrimination claim.

[00:18:33] Speaker 03:
And then the agency is saying that we won't consider all these different things.

[00:18:38] Speaker 03:
We won't consider the performance improvement plan.

[00:18:41] Speaker 03:
because more than 45 days have come by.

[00:18:44] Speaker 03:
So below, they're telling us, oh, you can't come here.

[00:18:48] Speaker 03:
In fact, I would have raised an issue of estoppel, but that whole record is not before the court.

[00:18:54] Speaker 03:
But at the very least, it shows the weakness of the government's case when, on pages 77, appendix 78, and then 80, and 86 through 88, they're refusing to consider the performance improvement plan.

[00:19:08] Speaker 03:
And now they come into court and say, oh, you should have done it there.

[00:19:12] Speaker 03:
That's wrong.

[00:19:15] Speaker 03:
And that's, so, I mean, the facts, it's the same facts that relate to the performance that relate to the pretext, the pretext.

[00:19:27] Speaker 03:
And those facts are, you know, the employee is supposed to be given the benefit of the doubt.

[00:19:32] Speaker 03:
So that's the problem.

[00:19:33] Speaker 03:
I mean, I was just going to look at, like, a specific place on the appendix so I could, to quote, for example, where on page 70,

[00:19:42] Speaker 03:
on page 75, appendix page 77 on block 7.

[00:19:50] Speaker 03:
Explain how you believe you were discriminated against.

[00:19:53] Speaker 03:
And so see attached amended synopsis and talking about as when a colleague was older than him planned to retire and he acquired plans of occupation.

[00:20:06] Speaker 03:
Those are some of the facts.

[00:20:07] Speaker 03:
And that was not appealed.

[00:20:09] Speaker 03:
The fact that the employee didn't have the resources to appeal that.

[00:20:12] Speaker 03:
And also, there was the DSR, DIS, Discontinued Service Retirement.

[00:20:18] Speaker 03:
That age issue, since he was allowed to retire, it's not, it became not really moot, but it weakened the force of it.

[00:20:25] Speaker 03:
So the fact that the employee failed to appeal an EEO case does not thereby

[00:20:33] Speaker 03:
give up the right to look at the facts that are exactly relevant to the VE or A or the USERA.

[00:20:41] Speaker 03:
It's the same facts.

[00:20:43] Speaker 03:
That's not an exclusive forum because the government themselves said we won't even consider it in that forum.

[00:20:49] Speaker 03:
So why does that suddenly become the place that should be considered when the government told the employee that it wouldn't consider those facts?

[00:20:58] Speaker 03:
So it's basically what the government is trying to do.

[00:21:02] Speaker 03:
is they're slicing it down into discrete elements and saying, oh, each of these elements is not satisfied.

[00:21:08] Speaker 03:
And so therefore, he's out of luck and out of court.

[00:21:12] Speaker 03:
But they didn't look at the totality of the circumstances.

[00:21:15] Speaker 03:
That's what needs to be done.

[00:21:17] Speaker 03:
The employee faithfully served the United States government for 22 years and the DOJ for over 11.

[00:21:23] Speaker 03:
And no one deserves to be treated like what happened in this case.

[00:21:26] Speaker 03:
Thank you.

[00:21:27] Speaker 02:
Thank you, Mr. Dr. We have your argument and we'll take the case under advisement.