[00:00:00] Speaker 02: Okay, I shall call the case. [00:00:02] Speaker 02: Can you hear me all right, Mr. Chisholm? [00:00:04] Speaker 02: Question? [00:00:05] Speaker 04: Yes, I think I can. [00:00:06] Speaker 04: I have you on the speakerphone and I think your voice is coming in loud and clear. [00:00:12] Speaker 02: Okay, this is case number 16-2508, Macias against the Department of the Army. [00:00:18] Speaker 02: Please proceed as the appellant. [00:00:20] Speaker 02: You have ten minutes for your case in chief and we're saving five minutes for rebuttal. [00:00:26] Speaker 02: Is that great? [00:00:28] Speaker 02: Yes. [00:00:28] Speaker 02: Okay, please proceed. [00:00:30] Speaker 04: Yes, please, of course. [00:00:36] Speaker 04: I think there's really two main issues in this case, at least for purposes of oral argument. [00:00:46] Speaker 04: And those issues are set forth in our reply brief. [00:00:53] Speaker 04: But I wanted to add that in regard to the Posse Comitatus issue, [00:00:59] Speaker 04: It's an issue that the agency should not have brought because it doesn't fit the factual situation for posse commas. [00:01:12] Speaker 04: I mean, in a way, it was overcharged, and it should never have been included. [00:01:16] Speaker 04: But to the extent that it was included and was a major feature of the cause for removal, they accused him of violating the posse commas three times. [00:01:29] Speaker 04: To the extent that they couldn't prove that because there were no facts, I think it validates the decision. [00:01:41] Speaker 02: Well, he was charged with several violations. [00:01:44] Speaker 02: Was he not with a record as to the speed at which he was traveling and sufficient details? [00:01:52] Speaker 02: I'm not sure I understand your point. [00:01:55] Speaker 04: But the point is that I think that the Posse Comitana stuff was a central part of the facts of why he was removed. [00:02:04] Speaker 04: And the Posse Comitana fact, I mean, like you have to commit that interdiction of a vehicle, vessel, aircraft, or other similar activity, search or seizure, arrest, apprehension, stop and first of other similar activity, use of military personnel for surveillance or pursuit of individuals or his undercover agents, informants, investors, [00:02:25] Speaker 04: He didn't do any of that. [00:02:27] Speaker 04: And his testimony was unchallenged on that point. [00:02:32] Speaker 04: And the witness from the State University down there of the federal police department in the Monterey, California State University of Monterey, he backed that up, that the CS didn't do any of that. [00:02:49] Speaker 04: Now, I understand and acknowledge that there were some other [00:02:55] Speaker 04: of violations but this was the main and it was overcharged actually said he did this stuff three times he didn't do it at all and uh... uh... they really just said if you leave the geographical area of the base you're you violated the pc a i don't know if the court has has uh... entertain any party comment on it but it's a big deal i mean it's a federal government [00:03:20] Speaker 04: And the military, especially, is not supposed to go in and enforce the law. [00:03:24] Speaker 04: That's for local, you know, jurisdictions. [00:03:27] Speaker 04: You know, I guess it's the separation of the federal government from the states and their law enforcement. [00:03:33] Speaker 03: Mr. Klisham? [00:03:34] Speaker 04: You know, during San Francisco in 1906, between the mayor and the president, with the army, you know, the earthquake. [00:03:43] Speaker 04: So the fact that they charged this, I mean, this was the heart of the, you know, of the factual vote. [00:03:50] Speaker 04: charges against him. [00:03:51] Speaker 04: If you eliminate that, it has to go back and say, well, wait a second. [00:03:55] Speaker 04: If he didn't do that, maybe all this other stuff is overblown, too. [00:03:59] Speaker 03: Mr. Christian? [00:04:00] Speaker 03: Yes. [00:04:01] Speaker 03: This is Judge Lynn. [00:04:02] Speaker 03: Let me ask you this. [00:04:05] Speaker 03: The SOP 5.18 version of posse commentatus talks about no action to enforce the civilian laws, [00:04:19] Speaker 03: or provide assistance to civilian law enforcement will be taken. [00:04:23] Speaker 03: So there are two aspects to it. [00:04:25] Speaker 03: One, enforcement, and one, providing assistance. [00:04:30] Speaker 03: Now, maybe he was not actively engaged in enforcement activities. [00:04:36] Speaker 03: He didn't arrest anybody. [00:04:38] Speaker 03: He didn't handcuff anybody. [00:04:41] Speaker 03: He didn't do any of those sorts of things. [00:04:43] Speaker 03: But he certainly [00:04:46] Speaker 03: I mean, how can you say there was an improper charge when he was in his car, speeding along at 90 miles an hour, passing red lights in providing assistance, which is another aspect of the Posse Comitatus regulation? [00:05:08] Speaker 04: I don't think there's any evidence at all that he provided assistance. [00:05:12] Speaker 04: He was there as an observer. [00:05:13] Speaker 04: and uh... i think i don't know what was he doing driving ninety miles an hour through red lights well he was he was following the other officer what he was doing and you know i i i can't i can't respond to that that's not a pca violation to go through a red light in california it just isn't if if it were that there'd be a lot of people that would be be violating the uh... you know the pca all the time [00:05:40] Speaker 04: I mean, he has authority to, you know, as a police officer and even a federal police officer to exceed the speed limit to a certain extent. [00:05:51] Speaker 01: Wait, only to do so in the conjunction with his job, right? [00:05:57] Speaker 01: He doesn't have the authority to exceed the speed limit and run red lights when he's, you know, off on the weekend taking his kids to the movies or something, correct? [00:06:06] Speaker 04: what what what what what what what what what what what what what what what what what what what what what what what what what [00:06:34] Speaker 04: That particular law, it's a crime. [00:06:36] Speaker 04: He could have been prosecuted for that. [00:06:39] Speaker 04: I think if they had left that out and charged him with speeding, that may have held up. [00:06:46] Speaker 04: But other officers had been charged with speeding and they weren't removed. [00:06:50] Speaker 04: So I think the PCA thing was a fatal charge on their part. [00:06:58] Speaker 04: He did not participate. [00:07:00] Speaker 04: search and seizure, and our case is where a federal officer can stand by and a federal officer can't assist one request. [00:07:12] Speaker 04: But the specific charge of posse comatose, I think, is fatal to this case. [00:07:20] Speaker 04: And it should never have been brought in. [00:07:21] Speaker 04: In fact, it was brought in prejudice the whole case. [00:07:25] Speaker 04: And it's not just a thing, well, you were there, you saw something. [00:07:30] Speaker 04: They said that he violated three times because he went to three separate calls with this officer from the State University of Monterey. [00:07:41] Speaker 04: And I just don't think there's any facts. [00:07:44] Speaker 04: He didn't interject the vehicle, absolutely didn't engage in search procedure, arrest apprehension, et cetera. [00:07:50] Speaker 04: And I think I'd like to move on to the next issue if that's all right with the court. [00:07:57] Speaker 02: Okay, proceed. [00:07:58] Speaker 02: You have a few minutes. [00:08:00] Speaker 04: I have three minutes. [00:08:02] Speaker 02: You have three minutes and you're a principal argument, but let's hear the next issue. [00:08:08] Speaker 04: Oh, okay. [00:08:09] Speaker 04: The next issue, and I'll try to make this brief, is the comparators. [00:08:14] Speaker 04: There was a lot of evidence of, you know, a discipline that was imposed on other employees. [00:08:23] Speaker 04: And it's understood that the deciding officials didn't evaluate the comparators. [00:08:29] Speaker 04: at the the the final order at the uh... the initial decision go on and on about the fact that that while they were there they were in the notice which is corrected and uh... there's no proof that it was uh... it was new with it and you know in material I didn't get a chance to respond to it but I think the point on on on that and we also put this in the on requirement well we didn't put all in the requirement the uh... the douglas pace requires [00:08:58] Speaker 04: the deciding officials to review the comparatives. [00:09:01] Speaker 04: It's fair to do so with the due prompt of violation. [00:09:04] Speaker 04: Deciding officials like the judge, he she is required to use independent judgment to determine if the deciding official in this case did not review the comparatives. [00:09:13] Speaker 04: He testified that final order contained safety that the recommending official did look at the comparatives and provided the comparatives with tissue, but he used them as the recommending official and decided the official would generally play with prior discipline. [00:09:27] Speaker 04: That's insufficient. [00:09:28] Speaker 04: the one-year uh... uh... whether the private official under the cases you know the the uh... the cleveland case and uh... other due process cases say that the deciding official like the judge he's required to exercise his own independent judgment on the comparative it's not a group decision it's not a committee meeting under stone the deciding official is uh... [00:09:55] Speaker 04: Stone vs. Federal Deposit Insurance Company, this is a specific case from 1999, said that the deciding officials required the weighted comparative factors and the decision notice would explain what weight was given to those factors in reaching the agency's decision. [00:10:11] Speaker 04: And the deciding official in this case didn't do that. [00:10:14] Speaker 04: He would sign the routine language from, that he was given by the Human Relations Department. [00:10:22] Speaker 04: Stone also holds, our system is premised on the procedural fairness of each stage of the removal proceedings. [00:10:27] Speaker 04: The employee is entitled to a certain amount of due process rights at each stage, and when these rights are undermined, the employee is entitled to a relief regardless of the stated proceeding. [00:10:37] Speaker 04: Stone also holds that when there is a due process violation, in that case ex parte communication, the removal must be reversed. [00:10:44] Speaker 04: The employee reinstated and provided back pay. [00:10:47] Speaker 04: The employee is entitled to a new constitutionally correct procedure. [00:10:50] Speaker 04: So I think that the admission of the deciding official that he didn't do this at all deprived the seers of due process. [00:11:03] Speaker 04: It's a constitutional violation. [00:11:05] Speaker 04: He did not act like a judge. [00:11:07] Speaker 04: He simply took what was put in front of him and didn't make an independent decision on that discipline. [00:11:12] Speaker 04: And of those grounds, this matter should be reversed. [00:11:16] Speaker 04: And I think I've used up the time. [00:11:19] Speaker 02: OK. [00:11:20] Speaker 02: No, thank you, Mr. Klischer. [00:11:22] Speaker 02: Now, you have time for rebuttal. [00:11:23] Speaker 02: Let's hear from the government, Ms. [00:11:25] Speaker 02: Biesak. [00:11:26] Speaker 02: And let us know if you don't hear her voice. [00:11:30] Speaker 02: She's standing at the podium. [00:11:32] Speaker 00: Thank you. [00:11:33] Speaker 00: Thank you, Your Honor. [00:11:33] Speaker 00: May it please the Court? [00:11:37] Speaker 00: First, I would like to touch on is the fact that even taking into account the possibility or the instance in which this Court were to find that the specification two concerning [00:11:49] Speaker 00: violation of SOP 518, which is the Posse Comitatus SOP. [00:11:55] Speaker 00: If the court were to find that that specification were unsupported, specification one under charge two has not been challenged and is supported by substantial evidence and independently substantiates that charge. [00:12:07] Speaker 00: Thus the three charges that the administrative judge and the board found to be upheld have not been challenged before this court and those three charges support the penalty of removal. [00:12:20] Speaker 01: Is the one you're referring to requiring the officer to report in at least once an hour and remain in assigned areas? [00:12:27] Speaker 01: Is that the one that you're saying wasn't challenged? [00:12:29] Speaker 00: Yes, Your Honor. [00:12:30] Speaker 00: That is, so charge two is failure to obey or observe, I believe, written regulations, orders, rules, or procedures where danger to the public, where persons or property are not endangered. [00:12:44] Speaker 00: And that specification supports that charge. [00:12:47] Speaker 00: That is also [00:12:48] Speaker 00: I believe Mr. Macias and Mr. Macias' counsel today have repeatedly claimed that this Posse Comitatus specification is the main charge, is the charge that really brought about this removal process, and the record simply does not support that. [00:13:08] Speaker 00: First of all, the charge to itself is the one of the three charges, the only one of the three charges that does not contemplate the penalty of removal. [00:13:17] Speaker 00: Charge 1 and Charge 3 both contemplate that penalty, even for a first offense. [00:13:22] Speaker 00: And Charge 2, this would, I believe, be Mr. Macias' second offense. [00:13:25] Speaker 00: Even as a second offense, it does not contemplate the penalty of removal. [00:13:29] Speaker 00: Second of all, if you look at both the proposing official's notice and the decision document, not only is the only reference to Posse Comitatus come within the specification language itself. [00:13:46] Speaker 00: There is no mention anywhere of the Posse Comitatus Act. [00:13:50] Speaker 00: When you get into the discussion of the Douglas Factors, Posse Comitatus does not come up at all. [00:13:56] Speaker 00: The concerns are primarily to the endangerment to the safety of the public that was caused by Mr. Macias' actions, by the notoriety that his actions caused, negative notoriety to the Presidio Department. [00:14:12] Speaker 00: For the variety of California vehicle codes, the variety of SOPs that he violated while in the company of officers from another department and in the public generally on university grounds, neither notice contemplates the PCA violation as this is the charge that matters. [00:14:41] Speaker 00: Turning briefly to the comparator question, first the deciding official, both the proposing official and deciding official did contemplate the consistency of the penalty with similar conduct and determined that there was no similar conduct that had been penalized to the violations that Mr. Macias did in this one night. [00:15:11] Speaker 00: even if that were not sufficient, the administrative judge in this case re-reviewed the Douglas factors independently and looked at every single one of Mr. Macias' purported comparators and found that they were not, in fact, comparators, that they did not have a similar conduct that justified comparing them in this situation. [00:15:37] Speaker 01: overcome a potential procedural deficit by the deciding official, or is it more appropriate to remand, you know, maybe would the deciding official possibly have made a different decision if you knew about the comparables? [00:15:50] Speaker 01: What is your view on that? [00:15:53] Speaker 00: First of all, Your Honor, I do think it amounts to harmless error at that point when you have the administrative judge and the board reviewing all of the reported comparators. [00:16:07] Speaker 00: The judge also pointed out, the administrative judge, that Mr. Macias provided 14 comparators. [00:16:15] Speaker 00: Ten of those comparators involved Deputy Chief Chaffee, who was the proposing official in this case. [00:16:21] Speaker 00: He was either the proposing or the deciding official in ten of those instances, and in one other, Chief Stubinger, if I'm saying that right, was the deciding official. [00:16:30] Speaker 00: So the two officials involved in this case [00:16:33] Speaker 00: were involved in 11 of the 14 of those comparators. [00:16:37] Speaker 01: So presumably... Well, I think opposing counsel admitted that the deputy chief purported to decide all the comparables. [00:16:44] Speaker 01: So the fact that he was involved in 10 of them, I mean I think that opposing counsel already admitted that those were considered. [00:16:49] Speaker 01: I think his problem is that the deciding official didn't. [00:16:52] Speaker 00: Well, the deciding official relied on Mr. Chaffee's effectively institutional knowledge of [00:16:59] Speaker 00: these comparators. [00:17:00] Speaker 00: There is no requirement that the way in which one must consider this Douglas factor is, as I believe Mr. Macias is arguing, that you have to go to HR and you have to ask HR, what are these records? [00:17:16] Speaker 00: In this case, what Chief Stubinger did was rely on the knowledge of [00:17:28] Speaker 00: the deputy who had been there since the 80s who had indicated that he had never seen violations of this sort. [00:17:36] Speaker 00: And that is a sufficient review of that particular Douglas Factor. [00:17:43] Speaker 00: And again, Your Honor, the administrative judge in this case did then specifically review all of those comparators and found them to be not applicable here. [00:17:56] Speaker 00: Your Honor, unless you have any further questions, we would just ask that the MSPB be affirmed in this case. [00:18:02] Speaker 02: Any more questions? [00:18:03] Speaker 02: Would you comment briefly a little bit more on the argument about disparate treatment and that some other punishment, such as a lengthy suspension, would have been more in keeping with responses to accepting that everything that has been alleged occurred? [00:18:25] Speaker 00: Certainly, Your Honor. [00:18:27] Speaker 00: In terms of disparate treatment specifically, that is certainly something that the petitioner in this case has the burden of proving. [00:18:40] Speaker 00: And again, based on the review of the administrative judge, the purported comparators that he is potentially trying to show disparate treatment in contrast to [00:18:55] Speaker 00: These cases are not similar to his at all. [00:18:58] Speaker 00: As the administrative judge indicated, I don't believe in any of them was somebody charged with three different violations in one night. [00:19:09] Speaker 00: I'm not trying to parrot the Posse Comitatus SOP violation. [00:19:13] Speaker 00: I mean, charge one, charge two, and charge three in this case. [00:19:17] Speaker 00: In many of these, I think in all of these cases, [00:19:21] Speaker 00: No one had three prior instances of similar conduct like Mr. Macias did. [00:19:28] Speaker 00: In only, I believe, one of the cases was public safety an issue. [00:19:35] Speaker 00: And in that case, it was an individual who had caused a car accident. [00:19:39] Speaker 00: And that individual ended up resigning prior to any decision on his removal notice. [00:19:45] Speaker 00: In this case, Mr. Macias put [00:19:50] Speaker 00: both the public and public property as well as government property in danger, particularly by his actions involving speeding without his lights on, well in excess of the posted speed limits, not clearing stop signs through an area that has been reported to have many animals crossing the road, that has pedestrians crossing the road. [00:20:11] Speaker 00: I believe, as the chief of police pointed out, he was following or attempting to follow a law enforcement vehicle that had its lights on. [00:20:20] Speaker 00: When that happens, when you have that vehicle down the street with lights on, cars get out of the way. [00:20:26] Speaker 00: Once that vehicle is passed, they assume it is safe to get back on the street. [00:20:30] Speaker 00: If there is another vehicle behind that vehicle without its lights on, going 90 miles an hour, he is seriously endangering other motorists who may be getting back onto the road. [00:20:41] Speaker 00: The basic point here, Your Honor, is that the severity of [00:20:48] Speaker 00: the violations that did take place, that are uncontested in this case, that took place over a period of nearly two hours, demonstrated, again, in conjunction with Mr. Macias' prior disregard for written regulations for oral orders, caused his superiors to lose faith in his ability to make sound judgments, [00:21:17] Speaker 00: be a police officer in charge of public safety. [00:21:26] Speaker 02: Thank you. [00:21:31] Speaker 02: Five minutes for rebuttal, please. [00:21:34] Speaker 04: Yes, how much time do I have? [00:21:37] Speaker 02: Five minutes. [00:21:39] Speaker 04: Oh, I have five minutes. [00:21:41] Speaker 04: Okay, thank you. [00:21:42] Speaker 04: I may not take five minutes. [00:21:43] Speaker 04: I think what I could point out in terms of the posse comitatus issue is that the petitioner, after he returned back to the main police force, he self-reported everything that happened. [00:22:02] Speaker 04: So he wasn't sneaking around behind somebody's back and saying, well, I was just out in this area just patrolling or something. [00:22:12] Speaker 04: and he's been instructed not to initiate activity. [00:22:15] Speaker 04: He's been instructed to only answer the service call. [00:22:18] Speaker 04: He's not charged with not answering his service call. [00:22:21] Speaker 04: When he went back in, he reported to his sergeant or the lieutenant that was in charge exactly what happened. [00:22:28] Speaker 04: That's how this whole thing started. [00:22:29] Speaker 04: So it's not something that he thought he was doing something wrong in the first place. [00:22:35] Speaker 04: And when this case falls out with the fact that he didn't really engage in law enforcement activity under [00:22:42] Speaker 04: that charge should never have been made. [00:22:46] Speaker 04: And so I just wanted to emphasize that point. [00:22:50] Speaker 04: And I think we answered the questions about due process. [00:22:55] Speaker 04: I guess my final thing is that I think that the decision of this court in Stone has sufficient language in it that this was, that the duty of the deciding official [00:23:11] Speaker 04: exercise his own independence of evaluation of those comparators is key. [00:23:20] Speaker 04: It's due props due to the employee. [00:23:24] Speaker 04: And it doesn't really matter that the recommending official had taken a look at that list and had even made some comments in the recommendation. [00:23:36] Speaker 04: So I think that this is a big [00:23:38] Speaker 04: I think the PCA is a big deal, the Posse Comitatives Act, and I also think that this is a due process violation, that the deciding officials didn't look at those comparators and just signed what was put in front of them as part of the decision. [00:23:55] Speaker 04: He's required to weigh those factors. [00:23:57] Speaker 04: There could be a recommendation from the deputy chief, which is what happened here, but he independently has to weigh that, and that's part of the due process rights of the petitioner in this case. [00:24:08] Speaker 04: And I appreciate the attention of the court to this matter. [00:24:13] Speaker 02: Okay, any questions for Mr. Klishen? [00:24:14] Speaker 02: Thank you, Mr. Klishen, and thank you, Ms. [00:24:17] Speaker 02: Misak. [00:24:18] Speaker 02: The case is taken into submission. [00:24:20] Speaker 02: That concludes the argument schedule for this morning. [00:24:45] Speaker ?: The autumn court is adjourned until tomorrow morning at 7 a.m. [00:25:03] Speaker 05: National Court in DOJ. [00:25:10] Speaker 05: Hi, I'm Pete. [00:25:12] Speaker 00: Hi. [00:25:12] Speaker 05: I work in the Army. [00:25:16] Speaker 05: I've been about 14 months in that job. [00:25:18] Speaker 05: I was a jet in the Air Force for three or four months. [00:25:22] Speaker 05: Oh, yeah? [00:25:23] Speaker 05: I worked in civil aviation, all of this stuff. [00:25:28] Speaker 05: That's what I do. [00:25:29] Speaker 05: Most days I sit at bed. [00:25:31] Speaker 05: You're in the Army? [00:25:32] Speaker 05: I came half years back to duty, and I'm still a reserved judge advocate, so I am a civilian. [00:25:39] Speaker 05: I'm a redeployment attorney, but I have written litigation from here. [00:25:41] Speaker 00: I've come to the City of Whitmore, because I've heard of Valvora, and it's fantastic. [00:25:46] Speaker 00: It's crazy. [00:25:47] Speaker 05: I see it in most cases. [00:25:48] Speaker 05: It's about circuit theory. [00:25:51] Speaker 05: So when there's an MSU case on the dock, I'm like, in. [00:25:55] Speaker 05: So good. [00:25:56] Speaker 00: You guys are doing yourself well. [00:25:57] Speaker 00: Thank you. [00:25:58] Speaker 05: Thank you very much. [00:25:58] Speaker 05: Very good for you as well. [00:26:00] Speaker 05: Well done. [00:26:01] Speaker 05: Yeah. [00:26:04] Speaker 05: Yeah. [00:26:30] Speaker 05: There's a problem with civil evidence. [00:26:42] Speaker ?: Does it matter if you think it matters? [00:26:44] Speaker ?: No, it always does. [00:26:47] Speaker ?: It always does. [00:26:48] Speaker ?: So it's civil evidence. [00:26:49] Speaker ?: But you aren't aware of it? [00:26:49] Speaker ?: Yeah. [00:26:49] Speaker ?: And then this is just from starting. [00:26:54] Speaker 05: I put it in. [00:26:54] Speaker 05: And so then when that happened, things like this just happened. [00:26:57] Speaker 05: Yeah. [00:26:58] Speaker 05: What's the case on it? [00:26:58] Speaker 05: No, no, no, no, no, no, no, no, no, no. [00:27:28] Speaker 05: Definitely not on the sideways. [00:27:37] Speaker 05: Take that off the first time. [00:27:43] Speaker ?: Marty's S-word. [00:28:24] Speaker ?: Okay. [00:28:34] Speaker 05: Yeah, then we won't judge names. [00:28:48] Speaker 05: Most of the jobs that we have, we have to be able to deal with it. [00:29:00] Speaker ?: We have to deal with it. [00:29:10] Speaker ?: We have to deal with it. [00:29:34] Speaker ?: Yes. [00:30:01] Speaker 05: th th th [00:30:33] Speaker ?: th th [00:31:03] Speaker 01: Thanks for helping. [00:31:12] Speaker 01: Oh yeah. [00:31:20] Speaker 05: Do we take these in the back? [00:31:24] Speaker ?: In the back. [00:31:24] Speaker 02: Do we put them in the fridge? [00:31:28] Speaker 05: Yes. [00:31:32] Speaker 05: th th th [00:32:03] Speaker 05: That's it.