[00:00:00] Speaker 02:
Our final case today is 2017-1071, Henderson versus DVA.

[00:00:36] Speaker 02:
Please proceed Mr. Brown.

[00:00:55] Speaker 01:
I don't know if it's good morning or good afternoon.

[00:00:57] Speaker 01:
I think it's probably good afternoon by now.

[00:01:00] Speaker 01:
My name is Mike Brown.

[00:01:02] Speaker 01:
I am here representing Mr. Henderson on appeal.

[00:01:05] Speaker 01:
Cathedral Henderson was a 23-year employee with the Veterans Administration with an impeccable record and no disciplinary actions have ever been assigned or taken against him.

[00:01:19] Speaker 02:
He had an impeccable record up until the time when he advised his employees to close 2,700 unresolved cases against veterans even though they still contained open information that had not yet been fully resolved.

[00:01:34] Speaker 01:
as charged in the indictment.

[00:01:35] Speaker 01:
Yes, Judge Moore, that's correct.

[00:01:38] Speaker 02:
And in fact, the opportunity... He was charged on 50 separate counts of making false statements, is that correct?

[00:01:45] Speaker 01:
That's correct.

[00:01:46] Speaker 01:
And those facts were adjudicated, by the way, in a criminal proceeding that is now before the 11th Circuit.

[00:01:54] Speaker 01:
So that's the status of where we are.

[00:01:56] Speaker 01:
Back in July of 2015, he had only been indicted on those 50 charges.

[00:02:02] Speaker 01:
Out of 2,700 possibilities, he was indicted on 50.

[00:02:08] Speaker 02:
Just out of curiosity, they tried to bring 2,700 charges?

[00:02:11] Speaker 01:
They did not.

[00:02:12] Speaker 02:
Oh, how many did they bring?

[00:02:14] Speaker 01:
They brought 50.

[00:02:15] Speaker 02:
OK.

[00:02:15] Speaker 02:
All right.

[00:02:17] Speaker 02:
Keep going.

[00:02:18] Speaker 01:
And in a period of time, his division was given six days to close 2,700 consult requests.

[00:02:30] Speaker 01:
that had been left open for a period of three years, not by his group, which was not the Non-Veteran Association's care coordinating group, but by another group.

[00:02:44] Speaker 01:
He was detailed to that group without any experience and asked to supervise five other employees who had absolutely no experience.

[00:02:53] Speaker 01:
And during the process of processing 2,700, allegedly there were 50.

[00:03:00] Speaker 01:
over which he had problems as far as the computerized information was concerned.

[00:03:10] Speaker 01:
Allegedly, there were 50 people who did not receive outside consults, did not receive any kind of offer of an outside consult, and did not have any kind of disqualification by refusal to take a consult.

[00:03:26] Speaker 02:
But the indictment said, at least I think I'm quoting from it, that he falsely declared that the consults had been completed or refused by the veteran when he knew the consults were still pending and unresolved.

[00:03:43] Speaker 01:
That's what it said.

[00:03:43] Speaker 01:
There was no process by which he could do that.

[00:03:47] Speaker 01:
There's no process by which he could declare anything without the help and assistance of the five people that worked under him.

[00:03:54] Speaker 01:
and without the authorization of the people that worked over him.

[00:03:59] Speaker 01:
Judge Moore, in over 100,000 such cases that were disclosed in the scandal that broke in 2014, around the time that this became an issue for Mr. Henderson, there has been one person in all of the Veterans Administration that has been charged with a crime and convicted of it, and that is Mr. Henderson.

[00:04:20] Speaker 01:
He was taken out of his employment by virtue of this indictment.

[00:04:25] Speaker 01:
He was denied any kind of compensation, that is any kind of pay, by virtue of this action.

[00:04:33] Speaker 01:
And as a result, he has now been out of work for over 36 months.

[00:04:43] Speaker 02:
What about whatever happened with the veterans whose benefits claims he falsely closed or ordered closed or had closed based on

[00:04:54] Speaker 02:
the indictment what happened to them because these are men and women that served our country with distinction and had medical problems that they claim they were entitled to disability benefits for or medical help for and he ordered that there according to the indictment I have to accept as true that he knew they had not received the consultations that they were entitled to and nonetheless ordered

[00:05:21] Speaker 02:
those cases to be closed against the veterans' best interests.

[00:05:26] Speaker 02:
What about them?

[00:05:26] Speaker 02:
What happened to them?

[00:05:27] Speaker 02:
Have those cases been reopened, to your knowledge, and have the veterans gotten the medical treatment that they were entitled to before he did this?

[00:05:34] Speaker 01:
They were never denied any medical treatment.

[00:05:39] Speaker 01:
The question wasn't whether or not they were going to receive these consults.

[00:05:43] Speaker 01:
It was a matter of scheduling the consults.

[00:05:47] Speaker 01:
That was it.

[00:05:47] Speaker 01:
That was the total issue.

[00:05:49] Speaker 02:
I thought that he closed

[00:05:51] Speaker 02:
unresolved authorizations for consults, which was to terminate the consideration of whether such consults would in fact be authorized by the government.

[00:06:01] Speaker 02:
Am I mistaken in my understanding?

[00:06:03] Speaker 01:
Yes, Your Honor, you are.

[00:06:05] Speaker 01:
As a matter of course, if the consult is closed on the computerized system they have... Well, tell me what he did then.

[00:06:11] Speaker 02:
What did he do?

[00:06:12] Speaker 02:
I really need to know.

[00:06:13] Speaker 01:
Well, we're trying to figure that out ourselves, Judge Moore, and in fact... Tell me what the indictment

[00:06:18] Speaker 02:
said he did, because that's all that matters.

[00:06:20] Speaker 02:
I'm not a fact-binder, and I'm not supposed to look behind it.

[00:06:24] Speaker 02:
You're telling me this indictment on its face is not good enough for me to accept that the government was able to suspend him indefinitely in light of it.

[00:06:34] Speaker 02:
So what is the face of the indictment?

[00:06:36] Speaker 01:
I think you're putting your finger right on it.

[00:06:38] Speaker 01:
The indictment says one thing.

[00:06:40] Speaker 01:
The facts are completely different.

[00:06:42] Speaker 01:
My client is charged under the indictment.

[00:06:44] Speaker 01:
He has to try to figure out for himself.

[00:06:47] Speaker 01:
What is going on?

[00:06:47] Speaker 01:
One of the interesting things about the indictment, if you look at it closely, is that the names of the patients that supposedly did not receive their consults are not identified.

[00:06:58] Speaker 01:
There's just unidentifiable information provided, dates that are provided, on which he allegedly did this, among 2,700 people, 50 of them.

[00:07:11] Speaker 01:
He has to try to guess who they are.

[00:07:14] Speaker 01:
There's no way for him to know.

[00:07:16] Speaker 01:
And that did not become apparent to him until well after his job was taken from him.

[00:07:22] Speaker 01:
And that's what we're here about today.

[00:07:24] Speaker 01:
Was there due process involved in his dismissal?

[00:07:30] Speaker 01:
His suspicion.

[00:07:31] Speaker 03:
I have a question for you.

[00:07:32] Speaker 03:
I think you had said, and maybe I misheard, but you said he only had one week to close cases.

[00:07:40] Speaker 03:
But I thought the undersecretary gave the VA one year.

[00:07:44] Speaker 01:
The intersecretary may have given the VA one year, but as stated in the indictment on Supplemental Appendix 13, paragraph 11, between February 6, 2014 and February 11, 2014, Cathedral Henderson ordered employees of the VA under his direction to close over 2,700 unresolved authorized consults.

[00:08:13] Speaker 01:
And he was indeed ordered

[00:08:14] Speaker 01:
to do that.

[00:08:17] Speaker 01:
And he passed that order along to the people that were working for him.

[00:08:23] Speaker 01:
One of the things, one of the scandals in this case is the fact that somehow the undersecretary gets away with telling people that worked under her, you're going to close these consults within a period of time without herself ensuring that those terms on which those consults were closed

[00:08:44] Speaker 01:
were commensurate with medical need.

[00:08:48] Speaker 01:
That did not happen in this case.

[00:08:51] Speaker 01:
For Cathedral Henderson to have been accused of not closing these correctly is a little bit like charging somebody who has absolutely no responsibility for it for not operating a light down on the corner.

[00:09:06] Speaker 03:
I'm still confused.

[00:09:07] Speaker 03:
I apologize.

[00:09:08] Speaker 03:
But I thought we've got the undersecretary providing a year, and then

[00:09:14] Speaker 03:
Mr. Henderson waits and does this in February 6th and February 11th.

[00:09:22] Speaker 03:
I'm still having a hard time understanding.

[00:09:25] Speaker 03:
The deadlines were approaching, so he closed them, but not because he didn't have notice from the undersecretary.

[00:09:30] Speaker 01:
He didn't work for the undersecretary in that respect.

[00:09:33] Speaker 01:
He was assigned, he was detailed to that.

[00:09:38] Speaker 01:
The non-veterans

[00:09:42] Speaker 01:
uh, uh, care coordinator or the, uh, consult coordinator, he was designated to that division.

[00:09:47] Speaker 01:
He wasn't even, that's not his job description.

[00:09:49] Speaker 01:
He's a program analyst.

[00:09:51] Speaker 01:
He was designated.

[00:09:52] Speaker 03:
I understand.

[00:09:52] Speaker 03:
It's just nothing in the record to support this particular aspect.

[00:09:56] Speaker 01:
Well, there's nothing in the indictment that explains it.

[00:09:59] Speaker 01:
That's the problem.

[00:10:00] Speaker 01:
He gets an indictment that says, look, you were, you did this between February, February, the dates of February the 6th through February the 11th of one year, which is the time that he was

[00:10:12] Speaker 01:
detailed over there to specifically for the purpose of closing those 2,700 consults.

[00:10:19] Speaker 01:
And that's what the indictment says.

[00:10:21] Speaker 01:
And it is very confusing.

[00:10:22] Speaker 01:
And that's just one of the reasons we're here, Judge, is because there is no way that anybody reading this indictment has any knowledge, has any actual knowledge of what he or she might be charged with.

[00:10:35] Speaker 01:
It's just not there.

[00:10:36] Speaker 01:
We don't even have the names of the people that are involved.

[00:10:38] Speaker 01:
We don't even have the people that were detailed to work under him who actually made the entries, not him.

[00:10:46] Speaker 01:
But those people are the ones that actually made the entries into the computer.

[00:10:49] Speaker 01:
They're not included in this.

[00:10:51] Speaker 00:
This is the argument presumably you're making to the 11th Circuit.

[00:10:59] Speaker 01:
This is the argument that is being made to the 11th Circuit, yes.

[00:11:03] Speaker 01:
And it is also an argument that was made to the trial judge.

[00:11:07] Speaker 01:
But we're here today because he lost his job without any adjudication of these matters.

[00:11:16] Speaker 01:
None at all.

[00:11:16] Speaker 01:
The mere fact he was charged was enough.

[00:11:19] Speaker 02:
He wasn't just charged, right?

[00:11:21] Speaker 02:
He was indicted.

[00:11:23] Speaker 02:
That's the difference.

[00:11:24] Speaker 02:
We do have case law that says a mere arrest isn't enough, and you rely on it.

[00:11:29] Speaker 02:
But that's not what we have here.

[00:11:30] Speaker 02:
You have to explain to me why I should say an indictment by a grand jury

[00:11:37] Speaker 02:
on 50 separate counts is as speculative as an arrest.

[00:11:44] Speaker 02:
Do you understand what I'm trying to get at?

[00:11:45] Speaker 02:
To win your case, you've got to convince me that an indictment, which is not just a charge, it is a grand jury has reviewed it and decided to move forward.

[00:11:55] Speaker 01:
OK.

[00:11:56] Speaker 01:
In the world of due process, the grand jury doesn't hear from him at all.

[00:12:01] Speaker 01:
The grand jury has no participation with the facts in an adversarial way.

[00:12:06] Speaker 01:
They presented the case in this event by the employer who was trying to blame this on Mr. Henderson.

[00:12:13] Speaker 01:
Pure and simple.

[00:12:14] Speaker 01:
This is the reason that due process exists for these kinds of situations.

[00:12:20] Speaker 01:
He's supposed to have a due process to keep getting paid during the period of his suspension.

[00:12:27] Speaker 01:
That's what the due process is supposed to be about.

[00:12:29] Speaker 02:
Well, he's supposed to have due process to keep getting paid during his suspension.

[00:12:33] Speaker 02:
So long as the suspension, what is the language of the regulation, you may know better than me, something about, you know, is not likely to result in imprisonment or something.

[00:12:42] Speaker 02:
Something, what is the language?

[00:12:43] Speaker 02:
I don't have it handy.

[00:12:45] Speaker 01:
It is, there are three things, but one of the, I think the element that you're referring to is that there is a reasonable cause to believe that he would be convicted under the, under the charge.

[00:12:58] Speaker 01:
And, you know, the, the truth is,

[00:13:01] Speaker 01:
this entire matter was presented to the grand jury had to be, by virtue of the position and the knowledge, as Judge Stoll was just pointing out, in the indictment itself, it's very, very confusing because it's all about what happened at work.

[00:13:16] Speaker 02:
So the statute, I'm sorry, I found what I was referring to.

[00:13:19] Speaker 02:
The statute is 7513, and it says at least 30 days advance notice unless there is reasonable cause to believe

[00:13:30] Speaker 02:
the employee has committed a crime for which a sentence of imprisonment may be proposed.

[00:13:34] Speaker 02:
So the question is, does an indictment on the 50 counts by the grand jury create a reasonable cause to believe the employee has committed the crime?

[00:13:47] Speaker 02:
Why doesn't it?

[00:13:48] Speaker 02:
Why isn't there a reasonable cause in light of the indictment?

[00:13:52] Speaker 01:
For two reasons, and one is that in this case,

[00:13:56] Speaker 01:
the reasonable cause is based on what the employer who is trying to get rid of him, trying to blame this on him, is proposing to the grand jury.

[00:14:04] Speaker 01:
I mean, that's all they hear from.

[00:14:07] Speaker 01:
It's like having a preclusive effect of a case where you don't even have the opportunity in the case that the preclusion is based on.

[00:14:18] Speaker 01:
You don't even have the opportunity to appear.

[00:14:20] Speaker 01:
You don't have the opportunity to present your side of the case.

[00:14:24] Speaker 01:
You don't have the opportunity to even know what the matter that is being presented against you is.

[00:14:29] Speaker 01:
And even after the indictment, there is still nothing that he can look at in that indictment and say, OK, this is what I'm being accused of.

[00:14:40] Speaker 02:
OK, would you like to save the remaining time for rebuttal?

[00:14:42] Speaker 01:
What little I may have?

[00:14:43] Speaker 01:
Yes, ma'am.

[00:14:44] Speaker 02:
Thank you.

[00:14:44] Speaker 02:
Mr. Brown?

[00:14:47] Speaker 02:
Ms.

[00:14:47] Speaker 02:
Kaprowski?

[00:14:54] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:14:57] Speaker 04:
Mr. Henderson has failed to show that the MSPB abuses discretion are acted contrary to law.

[00:15:02] Speaker 04:
The question before the MSPB in terms of whether or not to invoke the crime.

[00:15:07] Speaker 02:
There are cases that say an arrest alone wouldn't be enough to meet the standard articulated in 7513, is that right?

[00:15:14] Speaker 04:
Correct, Your Honor, an arrest in conjunction.

[00:15:16] Speaker 02:
Why would that be?

[00:15:17] Speaker 02:
Why is it that an arrest alone is not enough?

[00:15:19] Speaker 04:
My understanding is that

[00:15:21] Speaker 04:
An arrest alone without conjunction of some other investigation or something else is merely an accusation that hasn't been proven or vetted through any sort of verification by the agency itself.

[00:15:31] Speaker 02:
An accusation?

[00:15:31] Speaker 02:
I mean, I just don't think police officers going around arresting people on accusations, right?

[00:15:36] Speaker 02:
I mean, isn't there something more that usually an arrest requires?

[00:15:40] Speaker 02:
Probable cause?

[00:15:41] Speaker 02:
I don't know, something to believe that they actually did what they did?

[00:15:44] Speaker 02:
I mean, just an allegation is enough?

[00:15:51] Speaker 02:
I'm just trying to understand why an arrest isn't enough but an indictment is because that's the only thing that is at issue in this case as far as I can tell.

[00:16:00] Speaker 02:
So I'm trying to understand what are the circumstances that cause an arrest to occur and we've concluded and we're bound by the law that an arrest alone isn't enough

[00:16:11] Speaker 02:
What makes this different then?

[00:16:12] Speaker 02:
If you can't answer me the questions about criminal law, I'll give you a pass on that.

[00:16:17] Speaker 02:
But what makes this different from those arrest cases?

[00:16:20] Speaker 04:
I would admit I am no expert on criminal law.

[00:16:22] Speaker 04:
But I think my understanding is an arrest alone is not sufficient for the agency to rely on the fact of an arrest itself to satisfy the crime exception.

[00:16:33] Speaker 04:
So an arrest does not, in and of itself, establish a reasonable cause because it hasn't gone through some sort

[00:16:39] Speaker 04:
independent vetting process, whether that process is done by the agency itself through an investigation or through an independent ex parte arm like a grand jury.

[00:16:48] Speaker 02:
And here are you relying exclusively on the indictment as providing the reasonable cause?

[00:16:55] Speaker 04:
Yes, Your Honor.

[00:16:55] Speaker 04:
It's exclusively the indictment, not the underlying actions that supposedly supported the indictment.

[00:17:02] Speaker 02:
Does the indictment generally

[00:17:05] Speaker 02:
include evidence beyond what was included when the person was arrested?

[00:17:10] Speaker 02:
Because I'm trying to get at, you know, Mr. Brown has raised the argument that his client had no opportunity to participate in the indictment, no opportunity to see even whatever evidence is presented.

[00:17:20] Speaker 02:
So how is it that I should, why should I conclude that that indictment nonetheless gets over the reasonable cause hurdle when the arrest did not?

[00:17:29] Speaker 04:
Well, that is supported by precedent.

[00:17:31] Speaker 04:
And in the indictment itself, it is a finding by the grand jury and by an independent

[00:17:36] Speaker 04:
armed that one, a crime has occurred, and two, in this case Mr. Henderson, the person indicted with that crime, probably committed those crimes.

[00:17:46] Speaker 04:
So that's the fact that the agency is relying upon when it points to an indictment to justify the crime exception in 7513-8.

[00:17:54] Speaker 02:
Don't you think when someone's arrested, the officer believes a crime has occurred and that that person has committed it?

[00:18:01] Speaker 02:
I mean, don't those seem like absolute predicates to an arrest?

[00:18:04] Speaker 02:
I mean, any reasonable arrest?

[00:18:07] Speaker 04:
I would think so.

[00:18:10] Speaker 02:
Again, I don't want to... And wouldn't that officer be an independent third party, apart from the agency, usually?

[00:18:16] Speaker 02:
Again, I'm just trying to get at the distinction between arrest and indictment, where why that indictment is a much more powerful indicator of reasonable cause than an arrest.

[00:18:27] Speaker 04:
Well I believe that the police officer in executing the arrest and of course in this case the arrest actually occurred after the indictment so I suppose it depends in part on whether it's arrest in connection with a suspicion by the police officer who judges for himself whether or not he suspects somebody of a crime and then executes an arrest and then there's a vetting process whether it's through an arraignment or through grand jury procedure

[00:18:54] Speaker 04:
to determine whether or not, in fact, the police officer was justified in making his decision.

[00:18:59] Speaker 04:
And that's the step that occurred with the grand jury.

[00:19:03] Speaker 04:
In this case, the prosecution brought charges to the grand jury.

[00:19:06] Speaker 04:
The grand jury then verified that the prosecution did have probable cause to bring the charges that, in fact, it charged Mr. Henderson with.

[00:19:18] Speaker 04:
And this is clearly established in the case law, that probable cause, as established by the grand jury,

[00:19:25] Speaker 04:
the same threshold as reasonable cause under 7513 for the agency to rely upon.

[00:19:30] Speaker 02:
But why would a probable cause for an arrest be good enough, then?

[00:19:33] Speaker 02:
Maybe my problem isn't that an indictment should be sufficient.

[00:19:37] Speaker 02:
Maybe my problem is that an arrest should be.

[00:19:41] Speaker 04:
That could be, Your Honor, but I don't believe that's relevant to the merits of this particular case.

[00:19:44] Speaker 02:
No, but I can't decide that, because the law, I have to follow precedent.

[00:19:48] Speaker 02:
And precedent says an arrest is not enough.

[00:19:51] Speaker 02:
So now I have to look at it.

[00:19:53] Speaker 02:
If an arrest is not enough, why is an indictment enough?

[00:19:57] Speaker 04:
The arrest is executed by the same person who is determining that the reasonable cause exists.

[00:20:04] Speaker 04:
So the police officer, and I may be using the wrong terminology from criminal law because, again, I'm not an expert, but reasonable suspicion or probable cause, whatever the police officer believes he or she possesses,

[00:20:19] Speaker 04:
He is also executing that action of perpetuating the arrest.

[00:20:24] Speaker 04:
Whereas with a grand jury, one individual, the prosecutor, is coming in to state, I believe I have probable cause.

[00:20:33] Speaker 04:
And then the grand jury is adjudicating that and deciding that.

[00:20:38] Speaker 04:
So it's not just a matter of a third party separate from the employing agency, but it's a third party coming through and stating, I believe there's probable cause.

[00:20:48] Speaker 04:
and an independent arm agreeing with that and affirming that through the course of an indictment.

[00:20:55] Speaker 04:
And as you state, the precedent is clear that an indictment is sufficient to establish reasonable cause.

[00:21:00] Speaker 04:
And when that indictment alleges crimes for which imprisonment might be imposed and which have a nexus to the employment.

[00:21:08] Speaker 04:
And here, the alleged crime was that he committed criminal acts in the course of his employment

[00:21:17] Speaker 04:
recruited other supervisees that he was charged with overseeing to commit these crimes in the course of their employment and to the detriment of the veterans that the VA is charged with trying to protect.

[00:21:32] Speaker 04:
So there's really no question that there was a nexus here and that is sufficient to justify an indefinite suspension.

[00:21:38] Speaker 04:
And I'd like to clarify that Mr. Henderson did not lose his job as a result of the indictment.

[00:21:45] Speaker 04:
Mr. Henderson was placed on unpaid suspension, meaning he was not paid, but he did not lose his status as a government employee at that time.

[00:21:53] Speaker 04:
That did occur later.

[00:21:54] Speaker 04:
It's not part of the record in this case.

[00:21:56] Speaker 04:
But Mr. Henderson, had he been acquitted of his crime, had the prosecution dropped the charges, and that followed through with the indictment, would have had the opportunity to come back to the agency and would have been able to seek back pay under the Back Pay Act.

[00:22:12] Speaker 04:
It is misleading to state, as counsel has, that he lost his job and he was taken out of employment solely as a result of this indictment.

[00:22:22] Speaker 04:
Mr. Henderson's due process arguments appear to rest on the fact that he was entitled to prove his innocence before he was suspended.

[00:22:31] Speaker 04:
But the agency is simply not equipped or authorized to make that determination in and of itself.

[00:22:37] Speaker 04:
And that the requirements for due process

[00:22:40] Speaker 04:
were for him to receive notice of the charge against him, which was that he was going to be indefinitely suspended without pay pending his criminal proceedings.

[00:22:51] Speaker 04:
Two, an explanation of the basis for the VA's decision, which was the fact of the indictment itself.

[00:22:58] Speaker 04:
And three, an opportunity to present his side, which he was afforded, in which he took advantage of.

[00:23:01] Speaker 02:
This is very much an aside.

[00:23:03] Speaker 02:
But do you have any idea?

[00:23:04] Speaker 02:
I assume that the 2,700 cases and all the ones in particular that were identified as cases where he closed them contrary to the veterans medical opportunities needs.

[00:23:18] Speaker 02:
I don't know how to frame it.

[00:23:19] Speaker 02:
But I assume all those were opened back up again and treatment was received as necessary?

[00:23:26] Speaker 04:
I would hope so.

[00:23:27] Speaker 04:
As a factual honor, Your Honor, I don't know.

[00:23:32] Speaker 04:
unfortunately and I know it's not relevant yeah I get it but Mr. Henderson also tries to create some sort of exception to the rules and in Dunnington and the other case law that it cited in our brief by arguing that somehow that did the grand jury was the cat's paw at the VA because the the agency presented all the arguments to the grand jury presented all the evidence to the grand jury

[00:24:02] Speaker 04:
On this record, there is no evidence that that actually occurred.

[00:24:07] Speaker 04:
Number one, and number two, it's irrelevant to the VA's actual basis for suspending Mr. Henderson, which was the fact of the indictment, as supported in the case law.

[00:24:18] Speaker 04:
Unless the panel has any other questions for me.

[00:24:21] Speaker 02:
No.

[00:24:22] Speaker 04:
I thank you, Mr. Kroski.

[00:24:24] Speaker 04:
I ask the court to affirm, please.

[00:24:25] Speaker 02:
Mr. Brown, you have some rebuttal time left?

[00:24:29] Speaker 01:
Great.

[00:24:30] Speaker 01:
John, first let me say that,

[00:24:31] Speaker 01:
It is a fact that the referrals did go back through the system automatically.

[00:24:38] Speaker 01:
They absolutely did go back through.

[00:24:40] Speaker 01:
And even at trial, some of those people had actually seen the people that they were referred to.

[00:24:46] Speaker 01:
You had asked a very interesting question about an arrest and what's the difference.

[00:24:50] Speaker 01:
And the difference that counsel came up with is that there's some sort of third party intervening in the arrest process.

[00:24:59] Speaker 01:
There is not some third party intervening.

[00:25:01] Speaker 01:
And I would point out that in this case, the complainant in this case was the agency.

[00:25:07] Speaker 01:
They were the ones that sought the indictment.

[00:25:09] Speaker 01:
And they were the ones that presented the evidence to the grand jury.

[00:25:14] Speaker 01:
So without anybody there representing Mr. Henderson's side, it's the same thing.

[00:25:21] Speaker 01:
It's the same practical effect.

[00:25:23] Speaker 01:
of using an arrest warrant on what you're going to do.

[00:25:25] Speaker 02:
Well, I guess one difference is an arrest is a single officer who gets credited with an arrest.

[00:25:30] Speaker 02:
And a grand jury is a jury of peers in a more objective moment.

[00:25:37] Speaker 02:
Arrests usually take place at times of crimes often.

[00:25:41] Speaker 02:
And a grand jury is a more independent body.

[00:25:44] Speaker 02:
And it's made up of not just one person, but a whole group.

[00:25:48] Speaker 01:
The difference being that in this case, all they heard

[00:25:52] Speaker 01:
All they hear is the evidence of the complaint in the process of an arrest.

[00:25:59] Speaker 01:
You may be in a police department where you have a structure of hierarchy that reviews that process.

[00:26:05] Speaker 01:
If all you hear from is the arresting officer and the complainant, it's not good enough.

[00:26:10] Speaker 01:
And all I'm saying is that in this case, that can't be due process.

[00:26:15] Speaker 01:
If you don't have an opportunity to present your side of it, if you don't have notice of what you're being charged with,

[00:26:22] Speaker 01:
then I don't think there is any law, and Laudermill, we've cited for the court in the brief, Laudermill holds that that is a requirement any time you're taking somebody's pay.

[00:26:34] Speaker 02:
OK.

[00:26:34] Speaker 02:
Thank you, Mr. Brown.

[00:26:35] Speaker 02:
I think both counsel the cases taken under submission.