[00:00:02] Speaker 02: Okay. [00:00:03] Speaker 02: The first argued case this morning is number 162542, Morrison against the Navy, the secator. [00:00:16] Speaker 01: Thank you, Your Honor. [00:00:18] Speaker 01: It has been the law of this circuit since, well, since even before this court was a circuit, that a due process violation [00:00:28] Speaker 01: divest the removal of legality, leaving the employee on the roles of the employing agency and entitled to his back pay until proper procedural steps are taken. [00:00:41] Speaker 01: That is, the employee must be returned to his position as if the unlawful removal had never taken place and remained there until new, correct, and constitutionally adequate procedures are taken. [00:00:59] Speaker 01: For reasons completely unexplained in this record, Mr. Morrison was not provided that relief. [00:01:06] Speaker 01: What he was provided instead was a reconstruction, a procedure where the agency said, well, if we hadn't violated your due process, this is what we would have done. [00:01:19] Speaker 01: We would have fired you anyway. [00:01:22] Speaker 01: So now, instead of a new, constitutionally correct procedure, [00:01:27] Speaker 01: Mr. Morrison finds himself in exactly the same position he was in before he proved that his constitutional rights had been violated. [00:01:36] Speaker 04: Mr. Ketter, I have a question as to whether this is a final order from the MSPB. [00:01:42] Speaker 04: And are you familiar with the line of cases from our court dealing with final orders in situations in which reconstructions have been ordered? [00:01:53] Speaker 04: Cases like Weed, Shoenroka? [00:01:56] Speaker 04: Marshall, nobody has cited these. [00:01:59] Speaker 04: So if you're not familiar with them, it's not your fault. [00:02:01] Speaker 01: I believe we did cite Weed, Your Honor. [00:02:02] Speaker 01: Weed you did cite. [00:02:03] Speaker 01: And Marshall, I filed an amicus in that case. [00:02:06] Speaker 01: OK. [00:02:06] Speaker 04: Well, in each of these cases, just cut to the chase, what each of these cases says is that where you have a remand to an agency, or in the case of the Cummings case, which is one in this series, something that isn't formally a remand, that has the effect of a remand, where the agency has more work to do, [00:02:26] Speaker 04: before the final disposition of the case, then there isn't a final order for us to review from the MSPB. [00:02:33] Speaker 04: And now, I know this may get you somewhat cold, since it wasn't briefed. [00:02:38] Speaker 04: The government briefed the non-aggrieved argument for non-jurisdiction, but not the final order. [00:02:46] Speaker 04: Do you have any comment on those cases, if you're familiar? [00:02:49] Speaker 01: A few things. [00:02:49] Speaker 01: First, John, if we start with the statute where we must, [00:02:56] Speaker 01: And I'm sorry, let's back up. [00:02:58] Speaker 01: This court in Weed said, in the particular context of determinations by the board, we have held that we now look to the board's regulations at 5 CFR 1201113 to determine what constitutes a final order for jurisdictional purposes. [00:03:17] Speaker 01: So the first place we look to determine whether there's a final order is the board's decision. [00:03:25] Speaker 01: articulate what it believed to be a final order. [00:03:28] Speaker 01: And in this case, as we pointed out in our brief, in at least four different places, six total, the board said this is a final order. [00:03:37] Speaker 01: It said this final order is provided the appellate rights. [00:03:42] Speaker 01: It said, except it's expressly modified by this final order, the prior order is still in effect. [00:03:49] Speaker 01: So the board clearly understood that pursuant to its own regulation, [00:03:54] Speaker 01: that this was a final order. [00:03:56] Speaker 01: The other thing that we talked about, and of course is the crux of all of this, is is there anything left to be done other than simply complying with the decision? [00:04:06] Speaker 01: Where there is mere compliance, that does not negate the finality of the order. [00:04:11] Speaker 04: But I take it there's an ongoing proceeding challenging the removal, which is now, I take [00:04:19] Speaker 04: in pending before the board. [00:04:21] Speaker 01: Right. [00:04:22] Speaker 01: It stayed pending resolution of this case. [00:04:24] Speaker 01: Right. [00:04:24] Speaker 02: But what's the status of that proceeding? [00:04:27] Speaker 01: It stayed, Your Honor. [00:04:28] Speaker 02: It stayed? [00:04:28] Speaker 01: It simply stayed. [00:04:29] Speaker 02: It stayed for this decision? [00:04:31] Speaker 01: Yes, Your Honor. [00:04:32] Speaker 03: It stayed at the board? [00:04:33] Speaker 01: Yes, at the board, at the regional office, not at the board. [00:04:37] Speaker 03: There was an action taken by the agency, and then you appealed from that. [00:04:41] Speaker 01: Correct, Your Honor. [00:04:42] Speaker 03: And again, that action that was taken could have been very favorable to you. [00:04:50] Speaker 01: Theoretically. [00:04:51] Speaker 03: Well, I think that's what Judge Bryson perhaps was talking about, was the case went back to the agency and you could have entirely prevailed there. [00:05:02] Speaker 01: And presumably I still can't theoretically. [00:05:05] Speaker 03: And the arguments that you present here, you could present, if you didn't present them here, you would present them in that case. [00:05:11] Speaker 01: So let's take that from right there, that point. [00:05:15] Speaker 01: Well, you could do this another time. [00:05:17] Speaker 01: The government argues, well, you're too soon. [00:05:20] Speaker 01: You're too early. [00:05:21] Speaker 01: You should have come later. [00:05:22] Speaker 01: And quite frankly, you know that if we'd come later, they would have said, you're too late. [00:05:26] Speaker 01: You should have come earlier, which is, in fact, what happened in Marshall. [00:05:32] Speaker 04: But that goes really... They didn't succeed with that argument. [00:05:35] Speaker 01: They didn't. [00:05:36] Speaker 04: Because the court said, [00:05:38] Speaker 04: you wouldn't have been able to appeal from the earlier order. [00:05:41] Speaker 04: So they did say that the earlier order was not final. [00:05:44] Speaker 01: But that's the difference, Your Honor, between a reconstruction and compliance in order to provide status quo ante. [00:05:52] Speaker 01: Under VOA, which a marshal was, the court's remedy is to provide a reconstruction. [00:05:58] Speaker 01: Say, what would you have done had you not violated this veteran's rights? [00:06:03] Speaker 01: That's not the standard. [00:06:05] Speaker 01: under status quo. [00:06:07] Speaker 01: And it's certainly not the standard under this court's precedence and the Supreme Court's precedence when we're talking about a violation of due process. [00:06:16] Speaker 01: Violation of due process requires that the slate be wiped clean. [00:06:21] Speaker 04: Do you see there being room for a harmless error argument in the context of a due process violation? [00:06:28] Speaker 01: Not under this court's precedence, not under the Supreme Court's precedence. [00:06:31] Speaker 04: No, Your Honor. [00:06:32] Speaker 04: The Supreme Court in Peralta, is that what you're relying on? [00:06:35] Speaker 01: Well, Peralta, Coe, Pinoyer versus Neff. [00:06:39] Speaker 01: I mean, the Supreme Court has said if there's a violation of due process, the judgment is void and it's void for all purposes. [00:06:47] Speaker 04: And that's as... Well, but those are particular kinds of due process problems. [00:06:53] Speaker 04: I take it that [00:06:54] Speaker 04: there are various types of due process violations that would be deemed due process violations, as to which there would be room for a harmless error. [00:07:04] Speaker 04: Are you saying there's just, once the term due process comes into the picture, there's no harmless error? [00:07:10] Speaker 01: So I understand that argument, Your Honor, but I believe it's foreclosed by this Court's decision in Stone. [00:07:16] Speaker 01: In Stone, this Court said, our system is premised on the procedural fairness at each stage, recognizing that there are multiple stages to these [00:07:24] Speaker 01: federal employee appeals at each stage of the removal proceeding. [00:07:29] Speaker 01: An employee is entitled to a certain amount of due process rights at each stage. [00:07:34] Speaker 01: And when these rights are undermined, the employee is entitled to relief regardless of the stage of the proceedings. [00:07:44] Speaker 01: And in ward, Your Honor, this court was very specific, I think, in saying [00:07:54] Speaker 01: that when there is a violation of due process, not this particular violation of due process, when there is a violation of due process, we go back to the beginning. [00:08:09] Speaker 01: It starts over. [00:08:11] Speaker 01: It is void. [00:08:12] Speaker 01: It's void for all purposes. [00:08:13] Speaker 01: And I think that that's what the Supreme Court demands. [00:08:17] Speaker 01: And there's no reason for it not to. [00:08:19] Speaker 01: This is due process we're talking about. [00:08:21] Speaker 01: It's not harmless error. [00:08:22] Speaker 01: And that's essentially what we have in this case. [00:08:27] Speaker 04: Well, now, one more question along this line is, where do you discern that this is a due process? [00:08:40] Speaker 04: The precise violation here is a due process violation as opposed to a violation of board-imposed policy as to the requirements [00:08:50] Speaker 04: that have to be satisfied in order to get over the involuntary, in order to avoid a finding of involuntary retirement. [00:09:00] Speaker 04: In other words, let me ask it in a more straightforward way. [00:09:04] Speaker 04: So the board says, look, if you either give somebody wrong advice or you even unwittingly don't give them the right advice, then we're going to throw out the involuntary retirement. [00:09:17] Speaker 04: That's essentially the rule, as I understand it. [00:09:21] Speaker 04: What is it in our case law or board law that says that's a due process violation as opposed to a prophylactic rule to protect against the employee involuntarily retiring? [00:09:36] Speaker 01: So just to rattle off a few, Your Honor. [00:09:39] Speaker 01: I think Covington says that. [00:09:41] Speaker 01: I'm not sure I think. [00:09:42] Speaker 01: As due process as such? [00:09:44] Speaker 01: I'm not 100% certain that Covington says it that way. [00:09:48] Speaker 01: I think Garcia does say it. [00:09:51] Speaker 01: I think it's a court of claims case. [00:09:55] Speaker 01: A decision made with blinders on cannot, as a matter of fundamental fairness, be binding. [00:10:03] Speaker 01: I forget the name. [00:10:04] Speaker 01: Maybe it's Christie. [00:10:05] Speaker 01: I don't know. [00:10:05] Speaker 01: I'm sorry. [00:10:06] Speaker 01: I just don't recall what that was. [00:10:08] Speaker 01: But no, I think that this court's decisions are replete with references to this being a constitutional violation. [00:10:17] Speaker 01: And clearly the board in its decision recognized it as such as a due process violation. [00:10:25] Speaker 04: Just one other quick question on the merits. [00:10:30] Speaker 04: If supposedly the agency had entered a letter of removal and then said, OK, we're going to suspend the removal, [00:10:39] Speaker 04: and allow you to retire. [00:10:41] Speaker 04: So we're entering the order of removal, but we're basically putting it on you can retire. [00:10:48] Speaker 04: Would the case come out the same way in your view? [00:10:52] Speaker 01: Are you asking me on the merits of the constitutional violation or on relief? [00:10:56] Speaker 04: On relief. [00:10:59] Speaker 01: I think it would. [00:11:00] Speaker 01: I think it's a different question. [00:11:02] Speaker 01: It's kind of like Baldwin, I think, is the case the government cites. [00:11:06] Speaker 01: where they said, OK, you're going to be fired on X day. [00:11:10] Speaker 01: And they gave him advance notice. [00:11:12] Speaker 01: And he said, well, before that time, I'm going to retire. [00:11:15] Speaker 01: And then there was confusion about what his health benefits would be. [00:11:18] Speaker 01: And the board ultimately said, that's a due process violation, and you're entitled to reinstatement, retroactive reinstatement incidentally. [00:11:28] Speaker 01: I think it's a confusing question, because again, it's focusing [00:11:34] Speaker 01: very narrowly on kind of what the consequence of the due process violation is. [00:11:40] Speaker 01: And I don't think that that's appropriate inquiry under the Supreme Court's precedent. [00:11:45] Speaker 01: It's not. [00:11:45] Speaker 01: You don't look to say, well, what happened? [00:11:48] Speaker 01: We violated your constitutional rights, but what happened is because of it. [00:11:52] Speaker 01: That's not the inquiry. [00:11:53] Speaker 01: The inquiry is, do you have these rights? [00:11:55] Speaker 01: Were you a court of these rights? [00:11:57] Speaker 01: And if you were not, then we wipe the slate clean and we start all over. [00:12:02] Speaker 01: So it's a harder case, I think, [00:12:05] Speaker 01: to kind of get your hands around, because it seems like, well, gee, he would have been fired anyway. [00:12:13] Speaker 01: And I think, Your Honor, that that's just part of the territory. [00:12:17] Speaker 01: It may be unfair in some sense in that particular case. [00:12:21] Speaker 01: But on a broader sense, that's what the doctrine requires. [00:12:25] Speaker 01: And I think it should. [00:12:29] Speaker 02: OK. [00:12:30] Speaker 02: Well, all right. [00:12:31] Speaker 02: We'll save you a full rebuttal time. [00:12:33] Speaker 02: Let's hear from the government. [00:12:34] Speaker 01: Thank you very much. [00:12:43] Speaker 03: Mr. Burbank? [00:12:49] Speaker 00: Good morning. [00:12:50] Speaker 00: And may it please the court. [00:12:51] Speaker 00: Mr. Morrison is really trying to appeal [00:12:55] Speaker 00: the removal decision that the agency decided was the appropriate status quo anti-relief. [00:13:02] Speaker 00: He is attempting to directly have this court review the agency's decision rather than going first through the MSPB. [00:13:12] Speaker 00: This court does not have jurisdiction over that action because the MSPB's order [00:13:21] Speaker 00: did not make a specific requirement. [00:13:24] Speaker 02: Let's assume the issues are before us. [00:13:26] Speaker 02: And if we need to cut back jurisdictionally, we'll do so. [00:13:30] Speaker 02: But let's use the time to make sure that we understand and explore what the issues that are before us, the distinction from the concurrent case. [00:13:41] Speaker 02: I think it would be interesting to know why the appeal on the merits of the firing had been stayed, I gather, at the government's request. [00:13:51] Speaker 02: on the theory that it would be controlled by the decision here? [00:13:57] Speaker 02: Was that the reason? [00:13:59] Speaker 00: I don't believe there was a stated reason from the MSPB. [00:14:03] Speaker 00: The MSPB recognized that if this court, for example, ordered reinstatement, then there would be. [00:14:09] Speaker 02: You're saying they stated spontaneously without a request from a party? [00:14:13] Speaker 00: I do not remember. [00:14:15] Speaker 00: I don't think they do that. [00:14:17] Speaker 00: I don't remember which party [00:14:19] Speaker 00: requested or whether it was joint, Your Honor, I can look it up. [00:14:23] Speaker 00: But the MSPB's order, I believe it dismissed without prejudice and said file again within 45 days of this court's decision. [00:14:34] Speaker 00: And there is a possibility that this court's ruling, for example, if the court ordered reinstatement and said that it was not appropriate to [00:14:47] Speaker 00: have this removal decision effective July 13, 2012, then that would obviate the need for a proceeding on that. [00:14:57] Speaker 00: So basically, if this court reaches the merits, depending on how this court rules, it might affect that appeal. [00:15:05] Speaker 00: So there are two issues with respect to the removal decision. [00:15:15] Speaker 00: chainy line of cases that Mr. Morrison cites, that the due process issues that he might raise with respect to the removal. [00:15:24] Speaker 00: And that needs to go through the MSPB. [00:15:28] Speaker 00: That's not before this court because the agency's decision on the removal, the actual SF50 that was issued, was after the MSPB's decision that's on appeal here. [00:15:39] Speaker 00: The other issue is the status quo anti-relief itself, whether it is appropriate for the agency to consider the removal decision when a separate action, the retirement, was reversed. [00:15:54] Speaker 00: So Mr. Morrison attempts to put them together and say, wipe the slate clean by not just reversing the involuntary retirement, but also reversing the decision to remove that was [00:16:09] Speaker 00: final. [00:16:09] Speaker 00: It was signed by the deciding official. [00:16:12] Speaker 00: Mr. Morrison had been afforded the opportunity to respond and did respond both orally and in writing to the notice of proposed removal that was based on his loss of security clearance. [00:16:23] Speaker 00: The status quo anti-relief as defined by the MSPP and also this court does not mean wiping away more than the infirm decision. [00:16:34] Speaker 00: It means going back to [00:16:36] Speaker 00: the status of things before the improper action, which here was the involuntary retirement. [00:16:43] Speaker 04: This case is very much involved. [00:16:45] Speaker 04: Why isn't this case, at least somewhat on the merits, somewhat like Cheney, where one could say, well, Mr. Cheney would have been fired for the subsequent drug violation, so let's look at that and figure out whether he would have been fired. [00:17:04] Speaker 04: The court didn't permit that. [00:17:06] Speaker 00: Are you referring to Jarmin, Your Honor? [00:17:08] Speaker 04: Isn't Cheney the drug case? [00:17:10] Speaker 00: I believe it's Jarmin. [00:17:11] Speaker 04: Is it Jarmin? [00:17:11] Speaker 04: Okay. [00:17:12] Speaker 00: Okay, yeah. [00:17:14] Speaker 04: That's Judge Friedman's opinion. [00:17:17] Speaker 04: All right. [00:17:18] Speaker 04: Yeah, I think so. [00:17:18] Speaker 04: Yeah, okay. [00:17:19] Speaker 00: So in Jarmin, there were a total of three drug tests. [00:17:25] Speaker 00: And on the second drug test, the agency... Oh, that's right. [00:17:29] Speaker 04: Cheney was a suspension case. [00:17:31] Speaker 04: Right. [00:17:31] Speaker 04: Right, Jarmin. [00:17:32] Speaker 00: So in Jarmin, there was a [00:17:36] Speaker 00: drug test, basically the second drug test, that the agency actually went through notice of proposed removal. [00:17:45] Speaker 00: And in that process, the removal decision was overturned because there were flaws with the drug test. [00:17:51] Speaker 00: The agency said, well, we never did anything with the third drug test. [00:17:55] Speaker 00: We never issued a notice of proposed removal. [00:17:59] Speaker 00: We never did anything on that. [00:18:01] Speaker 00: But we would have. [00:18:02] Speaker 00: And we would have removed him. [00:18:04] Speaker 00: And this court said, look, you can't [00:18:06] Speaker 00: know what would have happened in that case, maybe there would have been the same problem with the drug test in that third drug test as with the second. [00:18:15] Speaker 00: You can't assume there would have been a process that ended by a certain time and would have come out a certain way. [00:18:21] Speaker 00: Here, this case is like Baldwin in which there was a notice of repulsed removal, there was an opportunity to respond, and a final decision. [00:18:32] Speaker 04: But there really wasn't a final decision, right? [00:18:36] Speaker 04: a piece of paper which they decided not to issue as a final decision. [00:18:41] Speaker 04: And so why isn't that more along the lines of joining? [00:18:44] Speaker 00: The only difference is whether the agency officially issued it. [00:18:48] Speaker 00: The appendix has in it the decision itself. [00:18:55] Speaker 00: And you can see that it's signed. [00:18:56] Speaker 00: But has it been signed by Mr. Morse? [00:18:58] Speaker 02: Well, it's not disputed that it wasn't sent to him. [00:19:01] Speaker 02: And when you tell us there was an opportunity to respond, I couldn't find that. [00:19:06] Speaker 02: Anywhere is that they were saying that this is a notice you'll be removed with such and such an advanced date and there will be the traditional internal hearing. [00:19:17] Speaker 02: It seems to me that there is also a large amount of precedent with relates to loss of security clearance that requires that there be internal going back to due process and a hearing. [00:19:35] Speaker 02: And I couldn't find that anywhere in the materials that were sent to us. [00:19:40] Speaker 00: Your Honor, first of all, the removal decision itself, again, this court doesn't have that final decision on appeal. [00:19:47] Speaker 00: But the joint appendix does explain and show that he was afforded this opportunity to respond both to the [00:20:00] Speaker 00: Security clearance issue. [00:20:01] Speaker 02: Can you point out where that is? [00:20:02] Speaker 02: Yes, Your Honor. [00:20:03] Speaker 02: Either now or send us a note because I missed it. [00:20:07] Speaker 02: I can do it right now, Your Honor. [00:20:09] Speaker 02: That is a notice of removal and the opportunity to respond the internal hearing, the proceedings that are required when you lose your security clearance. [00:20:22] Speaker 00: That's correct. [00:20:23] Speaker 00: Your Honor, on the notice of proposed removal itself, [00:20:28] Speaker 00: The notice is on page... That was the notice that was never sent to him. [00:20:33] Speaker 00: No, this was sent to him. [00:20:34] Speaker 00: The notice of proposed removal was sent to him. [00:20:36] Speaker 04: The proposed was sent, but the final actual removal was not, as I understand it. [00:20:41] Speaker 00: What happened, and this is... So if I could just walk through the timeline here. [00:20:45] Speaker 00: So he was sent the notice of proposed removal. [00:20:48] Speaker 00: That's on page 109 of the appendix. [00:20:53] Speaker 00: The decision on proposed removal on page 112 [00:20:58] Speaker 00: describes his oral and written responses, of which there are several. [00:21:06] Speaker 02: And then the... I'm sorry, 109 is the limited access, right? [00:21:13] Speaker 00: I'm sorry, Your Honor. [00:21:15] Speaker 00: I didn't hear what you said. [00:21:17] Speaker 02: I know. [00:21:18] Speaker 02: Okay. [00:21:19] Speaker 02: I'm sorry. [00:21:20] Speaker 00: On page 112, it says he called and left phone messages. [00:21:24] Speaker 00: On the 30th of March, a fax on the 3rd of April. [00:21:27] Speaker 00: another package on the 5th of April, and another fax after that. [00:21:35] Speaker 00: The memos that are on page 115 and 116 explain what happened with the decision, which is that Mr. Morrison's supervisor called him into the office and said, I'm about to issue this to you. [00:21:55] Speaker 00: and instead Mr. Morrison retired. [00:21:58] Speaker 00: And that retirement decision, so there was no final issuance of this decision, but the decision had already been made. [00:22:05] Speaker 00: It had been signed. [00:22:06] Speaker 00: It was just this one small part that had not been done. [00:22:11] Speaker 02: And- That was the decision that was not officially sent to him. [00:22:15] Speaker 02: He was told about it, you say, but he wasn't given- That's correct. [00:22:21] Speaker 00: My understanding, again, from these two memos, [00:22:24] Speaker 00: 115 and 116 describe this meeting in the office and said, you know, this is on page 116 from Chief Clapsdale saying, I explained I'm going to issue a letter to you on behalf of Fire Chief Cox. [00:22:42] Speaker 00: And this is dated the 13th of July, 2012. [00:22:45] Speaker 02: So what was the reason why it wasn't officially issued? [00:22:50] Speaker 00: Because Mr. Morrison, and this is the next part of this sentence, he asked if he could retire instead. [00:22:55] Speaker 00: And they said, yes, you can retire. [00:22:57] Speaker 00: And that retirement was based on his incorrect understanding about how his retirement benefits would be affected by a removal. [00:23:04] Speaker 00: And that's the process that the MSPB said that's not appropriate and reversed. [00:23:09] Speaker 00: But that doesn't also reverse the removal decision process that had happened. [00:23:15] Speaker 00: erase all of that, that's unrelated to the problem that the MSPB identified with the retirement. [00:23:23] Speaker 03: Could I take us back to Jarman just for a moment to conclude where I think Judge Bryson is going? [00:23:29] Speaker 03: It struck me, I don't know if this is pertinent or not, but in Jarman there was an express demand for back pay. [00:23:38] Speaker 03: And we declined. [00:23:40] Speaker 03: Jarman asked us to release a title to receive back pay. [00:23:44] Speaker 03: We decline to do so. [00:23:46] Speaker 03: All we hold is we send it back. [00:23:48] Speaker 03: The back pay issue will be resolved on remand. [00:23:51] Speaker 03: On your adversary's view of this case, shouldn't Jarman have resulted in automatic back pay? [00:24:00] Speaker 00: I don't want to speak for it, but I think that's correct. [00:24:02] Speaker 03: No, but I mean, this is his theory of the case. [00:24:04] Speaker 03: I mean, what I'm saying is it struck me as it was quite [00:24:07] Speaker 03: important to deciding your adversary's point of view on this case, the fact that in Jarman, there was an express demand to us to order back pay. [00:24:18] Speaker 03: And the court said, no, there is no back pay in this setting. [00:24:22] Speaker 00: Right, that the agency and then the MSPB must determine in the first instance what the correct amount is. [00:24:28] Speaker 03: Well, that's what I mean, whether or not that didn't decide for this case, your adversary's view, that back pay is immediately required now. [00:24:37] Speaker 00: I think that's right. [00:24:38] Speaker 00: And that's also. [00:24:39] Speaker 03: But as if we haven't already decided his question. [00:24:42] Speaker 00: And Baldwin also supports the same idea, that the back pay issue of what the actual dollar amount may be is an enforcement issue that doesn't come to this court unless the MSPB has first reviewed the agency's decision, because it is the agency's decision in the first instance to figure out what that back pay is. [00:25:04] Speaker 00: And the order here. [00:25:06] Speaker 00: explicitly does not decide what the correct amount of back pay will be. [00:25:13] Speaker 00: It says you'll have to decide whether there would have been this removal as of July 13th, if it would have been later. [00:25:20] Speaker 03: But in Jarman, wasn't there a possibility in Jarman that when the case went back, the individual could be removed in a time as of a date when there would have been no back pay? [00:25:32] Speaker 00: I'm not sure how that would have happened in Jarman, given the court's instruction regarding that third drug test. [00:25:41] Speaker 00: But this court said figuring out what that back pay would be is something that must be done below first. [00:25:49] Speaker 00: That is certainly true. [00:25:51] Speaker 04: Do you agree with Mr. Ketter that the event that triggered the finding of [00:25:59] Speaker 04: involuntariness with respect to the retirement was a due process violation as opposed to a violation of a board-made, perhaps even court-made rule governing how people must be apprised of their rights at the point in which they make a decision to retire. [00:26:20] Speaker 00: Your Honor, I standing here do not have a position on that because the issue of whether this was an involuntary retirement [00:26:27] Speaker 00: Isn't it on appeal here? [00:26:28] Speaker 04: No, but the issue of whether there's a due process violation and what flows from that is on appeal. [00:26:34] Speaker 04: And Mr. Kader strongly urges that any such departure from the board-directed procedures is a due process violation. [00:26:44] Speaker 04: And hence, there is no room, for example, for a harmless error or any other reconstruction-type argument. [00:26:53] Speaker 00: The due process cases that [00:26:56] Speaker 00: Mr. Morrison's sites are all about removal process, not about this involuntary retirement standard. [00:27:03] Speaker 00: So I'm not sure that there is, again, I haven't done extensive research. [00:27:07] Speaker 00: I could certainly provide this court with a position on that. [00:27:12] Speaker 00: But my understanding of Mr. Morrison's argument about due process relies on cases about removal decisions, not this involuntary retirement notice about what your benefits will be. [00:27:26] Speaker 00: misunderstanding is certainly something that the MSPB has cited. [00:27:30] Speaker 00: But I'm not sure that it's happened in the context of a due process. [00:27:34] Speaker 04: Let me make sure I understand your position on what are the circumstances in which this reconstruction, if we want to call it that, would be permissible. [00:27:45] Speaker 04: You're not arguing, I take it, that if they had had the capacity to remove him but had never gone through the process [00:27:53] Speaker 04: the process of issuing a proposed letter of removal and so forth. [00:27:58] Speaker 04: You're not arguing that that would be a circumstance in which there could be a remand and reconstruction as to whether there would be a removal, are you? [00:28:06] Speaker 00: No, Your Honor. [00:28:07] Speaker 00: I think that's covered by Jamin, for example. [00:28:09] Speaker 04: Right. [00:28:10] Speaker 04: Okay. [00:28:11] Speaker 04: But you're saying that the difference between that case and this case is that signed letter, which just the only thing missing is the handing it to him. [00:28:21] Speaker 00: That's right, Your Honor. [00:28:23] Speaker 00: This case is between SYNC and Baldwin, both of which the MSPB said the agency can consider the status of that proposed removal. [00:28:36] Speaker 00: In SYNC, there was a proposed removal, but no final decision. [00:28:40] Speaker 00: I think that's a little bit further towards the German side of the spectrum. [00:28:44] Speaker 00: But that's just a board decision. [00:28:45] Speaker 04: That's not a decision of ours. [00:28:46] Speaker 04: I don't think that was reviewed. [00:28:48] Speaker 00: That's correct, Your Honor. [00:28:49] Speaker 00: And then Baldwin is all the way to the end of the process where there had been an issuance. [00:28:53] Speaker 00: And this is just that one. [00:28:55] Speaker 04: So Baldwin is like my hypothetical to Mr. Cator, where there'd been an issuance, but then it had been not acted on formally. [00:29:02] Speaker 00: That's correct, Your Honor. [00:29:03] Speaker 00: And so the MSPB says... And that was reviewed by this court. [00:29:07] Speaker 00: That's correct. [00:29:07] Speaker 00: And it was affirmed. [00:29:09] Speaker 02: But here there was no issuance. [00:29:11] Speaker 02: That's right. [00:29:11] Speaker 02: Isn't that right? [00:29:12] Speaker 02: So not only was it not acted on, there was no issuance. [00:29:16] Speaker 02: And whether [00:29:17] Speaker 02: In fact, and this really is troubling, it wasn't issued. [00:29:22] Speaker 02: It was tucked away. [00:29:25] Speaker 02: It was in a personnel file that belonged to the agency. [00:29:29] Speaker 02: And they said, well, never mind. [00:29:31] Speaker 02: We could have separated you on such a date. [00:29:37] Speaker 02: Therefore, you don't even get two weeks notice that this is what the fallback position [00:29:45] Speaker 02: is, that's very hard to justify, isn't it? [00:29:49] Speaker 00: Well, Your Honor, I'm not sure I follow what Your Honor is saying with respect to a fallback position. [00:29:58] Speaker 00: But he had been afforded notice and an opportunity to respond, and he did respond. [00:30:04] Speaker 00: the agency was looking back to where things were right before there was this involuntary. [00:30:10] Speaker 02: Yes, I agree. [00:30:11] Speaker 02: I accept that. [00:30:12] Speaker 02: And the agency decided to remove him on such and such a date. [00:30:16] Speaker 00: Right. [00:30:17] Speaker 02: But they didn't do so. [00:30:18] Speaker 00: That's correct. [00:30:19] Speaker 02: But now it has. [00:30:20] Speaker 02: They didn't do so. [00:30:20] Speaker 02: And then they said, retroactively, however, we could have, therefore you were, rather than saying, we could have, and since we're curing this retroactively, [00:30:32] Speaker 02: or 30 days notice of removal or whatever would have been fair rather than it actually could have happened, therefore schools out. [00:30:43] Speaker 00: Well, he has the issue of whether he could have appealed the removal decision. [00:30:50] Speaker 02: I don't know whether he could have appealed. [00:30:52] Speaker 02: I'm talking about the agency action from the due process viewpoint. [00:30:56] Speaker 00: Right. [00:30:57] Speaker 00: And the agency action from the due process viewpoint, he had been given all of the process that he was due right up until the removal decision. [00:31:06] Speaker 00: There was no other process that he was still... Okay. [00:31:09] Speaker 00: Agreed. [00:31:10] Speaker 02: And so they decide to remove him, but they don't do it. [00:31:15] Speaker 02: And they don't do it because he says, I wonder, I'll retire. [00:31:18] Speaker 02: But then when that falls away, they say, but we could have done it. [00:31:23] Speaker 02: Therefore, it was done as of such date. [00:31:26] Speaker 02: That's when your payroll cuts off. [00:31:29] Speaker 00: That's right. [00:31:29] Speaker 00: And he had been already afforded all of the process. [00:31:32] Speaker 02: Does that sound fair to you? [00:31:33] Speaker 00: Your honor, he has already received the process that he was due under that notice of proposed removal and the involuntary retirement being reversed. [00:31:43] Speaker 02: But he wasn't told of the, he wasn't given the final judgment. [00:31:48] Speaker 00: He was told that it was about to be issued. [00:31:50] Speaker 02: He was told you lose, but he wasn't given the notice of removal. [00:31:55] Speaker 00: And the notice of removal would then trigger his ability to appeal that, which he now has and has filed. [00:32:01] Speaker 00: And the MSPB has said that it can't. [00:32:04] Speaker 02: He now has, and they said it. [00:32:05] Speaker 02: And this was effective way back then. [00:32:08] Speaker 02: Therefore, no pay. [00:32:11] Speaker 00: That's right, Your Honor. [00:32:12] Speaker 00: And again, he is being given all of the process that he would have been afforded without the involuntary retirement intervening. [00:32:23] Speaker 02: due process to fire someone and not tell him? [00:32:26] Speaker 00: He was told and he has been given the opportunity to appeal. [00:32:30] Speaker 02: The government fires someone with a document for the boss to say, you know, things are over is one thing. [00:32:41] Speaker 02: But here there was this quite elaborate decision which was given to him. [00:32:46] Speaker 00: It has been given to him at this point, Your Honor. [00:32:49] Speaker 00: Yes. [00:32:51] Speaker 02: I think the problem of the interim time and... You see the black problem. [00:32:56] Speaker 00: I think Your Honor is referring to that interim amount of time between that decision and the fact that there's been all of this process with respect to the... Now I'm thinking about the notice aspects. [00:33:06] Speaker 02: Well, okay. [00:33:08] Speaker 00: Thank you, Your Honor. [00:33:09] Speaker 02: Anything else you need to tell us? [00:33:11] Speaker 00: No, Your Honor. [00:33:11] Speaker 00: Thank you. [00:33:13] Speaker 02: Okay. [00:33:14] Speaker 02: We'll hear from Mr. Cater. [00:33:19] Speaker 04: Thank you. [00:33:20] Speaker 04: Mr. Ketter, before you get into the substance of your rebuttal, clarify for me what the general landscape is with respect to people who retire in lieu of removal. [00:33:36] Speaker 04: There are, as I understand it, some cases at least, maybe not this one, but some cases in which removal would indeed influence your entitlement to [00:33:47] Speaker 04: pension rights. [00:33:48] Speaker 04: Isn't that correct? [00:33:50] Speaker 01: Certainly. [00:33:50] Speaker 04: I mean for years I keep hearing people retire because they want to preserve their pension rights. [00:33:56] Speaker 01: It's very complicated and as time has gone on it's become more complicated with the different mutations of retirement. [00:34:04] Speaker 01: For example in Baldwin, he could have gotten an immediate retirement which would have given him health benefits or he could have gotten a greater retirement [00:34:14] Speaker 01: If you waited a couple of years. [00:34:16] Speaker 01: Okay. [00:34:17] Speaker 04: But in any event, what I'm trying to focus on is whether there is really is risk, maybe not in this case, but in many cases, a risk to the employee of forcing the employer's hand to actually remove him as opposed to taking the retirement in lieu of the being removed. [00:34:38] Speaker 04: And there is such a risk, is there not? [00:34:40] Speaker 01: There are, there are sometimes, I mean, there are consequences to resigning. [00:34:44] Speaker 01: rather than being terminated. [00:34:46] Speaker 04: One of which is you don't have to say to the next employer that I was fired. [00:34:49] Speaker 01: Not really. [00:34:50] Speaker 01: I mean, it doesn't work that way anymore, because if you're talking about a federal employment, they will ask, were you ever removed from it? [00:34:58] Speaker 01: Did you ever leave a job under adverse circumstances? [00:35:02] Speaker 04: I mean, that doesn't feel good. [00:35:04] Speaker 04: I would rather retire than be fired, actually. [00:35:06] Speaker 01: Certainly. [00:35:07] Speaker 01: But I'd probably so would you. [00:35:08] Speaker 01: Ordinarily, all things being equal, you would rather hold your head high and say, you can't fire me, I quit. [00:35:14] Speaker 01: But it's far more important decisions than ego that go into that now. [00:35:20] Speaker 04: It just strikes me that potentially, the rule that you're asking for actually hurts employees in some respects more than helping them. [00:35:31] Speaker 04: Because in many instances, the agency's response to a decision that, no, no, you get back pay even if you were prepared to issue an order of removal and instead took the guy's retirement, [00:35:43] Speaker 04: The agency's response is going to say, no, no retirement. [00:35:47] Speaker 04: You're fired. [00:35:48] Speaker 01: That employee for whom that is important is not going to pursue his appeal challenging the involuntariness of the retirement. [00:35:55] Speaker 01: So I'm not concerned with setting a bad precedent for employees in that way. [00:36:00] Speaker 04: Well, he might if he knew that a back pay award was awaiting him, if he could point to a flaw in the involuntary retirement process, right? [00:36:10] Speaker 01: Yes, Your Honor. [00:36:10] Speaker 01: But again, this is all [00:36:13] Speaker 01: focused on the government providing misleading and accurate information. [00:36:18] Speaker 01: The government just does its job. [00:36:20] Speaker 01: It gives proper advice or no advice at all. [00:36:24] Speaker 01: This case doesn't happen. [00:36:26] Speaker 01: But let me just go back to something that you raised earlier, Judge, the question of whether this is a due process violation. [00:36:32] Speaker 01: And the answer is in Covington. [00:36:35] Speaker 01: Covington says, a decision made with blinders on based on misinformation or lack of information [00:36:41] Speaker 01: cannot be binding as a matter of fundamental fairness and due process. [00:36:44] Speaker 01: So I did remember the quote kind of thing. [00:36:47] Speaker 01: And it is Covington. [00:36:49] Speaker 01: So yes, this court has taken it. [00:36:50] Speaker 01: And I'm sure, I haven't looked, but I'm sure that Covington has been cited for this proposition for numerous times. [00:37:01] Speaker 01: The point you raised, Your Honor, about Cheney, this is Cheney. [00:37:06] Speaker 01: Why is there a different result here than there is in Cheney? [00:37:11] Speaker 01: You also talked about Jarman. [00:37:12] Speaker 01: But let's talk about Cheney. [00:37:14] Speaker 01: Here's somebody whose clearance was suspended. [00:37:19] Speaker 01: And the suspension process means we're looking in to see whether we should revoke your clearance. [00:37:25] Speaker 01: So his clearance was suspended. [00:37:29] Speaker 01: Then they did an indefinite suspension saying, you no longer have your clearance, so we're going to indefinitely suspend you. [00:37:36] Speaker 01: This court said, well, you didn't give him the proper procedure [00:37:40] Speaker 01: proper due process under 7513. [00:37:43] Speaker 01: So we're going to reverse, and we're going to order that you be provided back pay. [00:37:49] Speaker 01: We're going to return you to your position, even though we had no clearance. [00:37:56] Speaker 01: We're going to return you to that position and give you back pay until such time as they give you adequate constitutional process. [00:38:04] Speaker 01: That's all that we're asking in this case. [00:38:06] Speaker 01: And there's simply no justification. [00:38:08] Speaker 01: There's no justification in the board's rationale. [00:38:11] Speaker 01: There's certainly none in this court's precedents. [00:38:14] Speaker 01: Baldwin? [00:38:15] Speaker 01: Baldwin was a per curiam order. [00:38:17] Speaker 02: But he was, as your opponent pointed out. [00:38:20] Speaker 02: They did go through all of the internal procedures with respect to the revocation. [00:38:26] Speaker 01: They did. [00:38:27] Speaker 01: They did, Your Honor. [00:38:29] Speaker 01: Again, this goes to what this court observed in Stone, is that you are entitled and employees entitled to due process. [00:38:36] Speaker 01: at every stage in the proceeding. [00:38:39] Speaker 01: And a violation at any one of those stages is a violation of due process and invalid. [00:38:44] Speaker 02: But the question, as I was talking to your friend, was having done that, having made the decision that after the internal hearings required by Eagan and other cases, that the clearance, because of the loss of clearance, he would be separated. [00:39:02] Speaker 02: And then what? [00:39:05] Speaker 02: This is what troubles me. [00:39:06] Speaker 02: Was there in fact, having reached that decision, having perhaps orally told him, although they didn't give him the document, they withheld it so he could retire? [00:39:18] Speaker 01: Correct. [00:39:18] Speaker 02: They withheld it and... Does a due process violation arise there? [00:39:25] Speaker 01: The due process violation arose not by withholding the document. [00:39:30] Speaker 01: The due process... [00:39:33] Speaker 01: violation arose by misinforming him about the consequences of his retirement, basically telling him that in order for you to preserve your retirement, you have to resign or retire, and that if you force us to fire you, you will lose your annuity. [00:39:49] Speaker 01: That's what the board held was a due process violation. [00:39:54] Speaker 01: So it's a different due process violation than a change. [00:39:58] Speaker 01: than in these other cases that have been scored. [00:40:00] Speaker 03: In Cheney, it was due process in connection with the actual removal decision on the security clearance. [00:40:06] Speaker 01: The due process violation was that they didn't give Cheney notice of why they were revoking his clearance. [00:40:12] Speaker 03: Right. [00:40:12] Speaker 03: Johnny, my point is, in this case, there is a security clearance decision in this case. [00:40:21] Speaker 03: And there's no question that there was any due process violation in connection with that, correct? [00:40:26] Speaker 01: That was totally clean. [00:40:30] Speaker 03: And in terms of the papering up of the proposed removal decision, he was given notice of all of that. [00:40:37] Speaker 03: There's no due process problem there. [00:40:39] Speaker 03: The only due process issue is whether or not [00:40:41] Speaker 03: he was afforded the correct process in advising him with respect to the question of whether he should voluntarily resign. [00:40:48] Speaker 01: That's correct, General. [00:40:49] Speaker 01: And my response is that is precisely the vibe. [00:40:52] Speaker 03: And that's the cabinet which Judge Bryson has asked whether that should truly be a due process concern or whether it's not. [00:40:59] Speaker 03: And that's what that did. [00:41:00] Speaker 01: And I believe Covington speaks to that, as I'm sure other cases of this court. [00:41:04] Speaker 01: And I would just add that there's no such thing as a little bit of due process. [00:41:08] Speaker 01: This is due process. [00:41:11] Speaker 01: the Supreme Court has mandated. [00:41:13] Speaker 01: This court has mandated on repeated occasions. [00:41:16] Speaker 01: If there's a due process violation, you must wipe the slate clean. [00:41:20] Speaker 01: There's no [00:41:22] Speaker 01: There's no room to play this well. [00:41:23] Speaker 01: You're better off. [00:41:24] Speaker 03: Well, then the question in this case is, what was the slate? [00:41:26] Speaker 03: I think that's the way the government's presenting the case, is to say the slate includes the proposed notice of removal that had been properly prepared and was properly lying on the desk. [00:41:38] Speaker 03: Isn't that our question? [00:41:40] Speaker 01: To say that, Your Honor, is to say that in Cheney, they could have said, well, OK, yeah, we didn't give you the reasons for it. [00:41:48] Speaker 01: But now, agents, you go back and say, [00:41:51] Speaker 01: give him the reasons, consider his reasons, and if you would have made the same decision, then even though you've shown a due process violation, do nothing. [00:42:02] Speaker 01: That's what the board did here. [00:42:04] Speaker 01: They said, go back, see if you would have made the same decision, irrespective of the due process violation, and if you would, forget about it, no harm, no foul. [00:42:14] Speaker 01: That cannot be the law. [00:42:17] Speaker 01: The Supreme Court's decisions going back over 150 years, [00:42:21] Speaker 01: mandate that due process be protected. [00:42:25] Speaker 01: And that protection, in the words of this court, requires that the slate be wiped clean, that he be reinstated with back pay until such time as he's provided adequate and constitutionally correct process. [00:42:41] Speaker 04: Well, but with respect to the adequate and constitutionally protected process, it seems to me that [00:42:48] Speaker 04: He got all that the first time around. [00:42:50] Speaker 04: The only thing that was missing was the piece of paper having been handed to him. [00:42:57] Speaker 04: You wouldn't argue, would you, that if he got all of his rights to notice, a hearing, a right to be heard orally and in writing, and a decision was made that the failure to actually hand him the piece of paper, they tell him, you're going to be fired. [00:43:14] Speaker 04: You are fired. [00:43:15] Speaker 04: They just don't have it in a piece of paper. [00:43:16] Speaker 04: That's not a due process problem, is it? [00:43:18] Speaker 01: The due process problem was not. [00:43:21] Speaker 04: I understand, but now you're focusing on whether he's entitled to go back and have his due process cured. [00:43:29] Speaker 04: The only curative step [00:43:31] Speaker 04: would be handing him the piece of paper. [00:43:33] Speaker 04: But is the failure to hand him the piece of paper the first time, is that a due process violation? [00:43:40] Speaker 01: Well, no, because he was coerced into retiring, and therefore it was irrelevant. [00:43:45] Speaker 04: But suppose they had said, OK, we're going to fire you, and they forgot to give him the piece of paper, but they told him you're fired, and they processed it. [00:43:54] Speaker 04: You wouldn't be arguing that's a due process violation, would you? [00:43:58] Speaker 04: No. [00:43:59] Speaker 01: I would not, Jerome. [00:44:00] Speaker 04: So he wasn't deprived of due process the first time around with respect to the retirement issue. [00:44:06] Speaker 04: I mean, with respect to the firing and the removal issue. [00:44:07] Speaker 04: Because he wasn't fired. [00:44:08] Speaker 04: I understand. [00:44:09] Speaker 04: But everything that happened led up to a decision that he should be fired. [00:44:15] Speaker 04: And that decision, it seems to me, is not infected by a due process violation so far as I can see. [00:44:21] Speaker 04: That decision is not infected by it. [00:44:24] Speaker 01: But what is infected by it is, take this door here. [00:44:28] Speaker 01: You'll be fine. [00:44:29] Speaker 04: Yeah, I understand. [00:44:30] Speaker 01: But there's no little bit of due process. [00:44:33] Speaker 01: And there's no precedent in this court that says you can have different remedies for different kinds of due process violation. [00:44:42] Speaker 01: In fact, Stone says exactly the opposite. [00:44:45] Speaker 01: Stone says exactly the opposite. [00:44:47] Speaker 01: And the Supreme Court cases on due process, they're property seizures. [00:44:53] Speaker 01: They're custody cases. [00:44:56] Speaker 01: There's judgment execution. [00:44:58] Speaker 01: It's all the same. [00:45:00] Speaker 01: If there is a due process violation, the judgment is void. [00:45:04] Speaker 01: It is void for all purposes. [00:45:06] Speaker 01: It cannot be relied upon. [00:45:08] Speaker 01: And that's exactly what we have here is a judgment that is being relied upon. [00:45:14] Speaker 01: He's entitled to status quo ante. [00:45:17] Speaker 01: He's found himself in status quo post. [00:45:19] Speaker 01: He's exactly where he would have been. [00:45:22] Speaker 01: And the question arises, well, he can't be better off. [00:45:26] Speaker 01: Who's better off in this situation? [00:45:28] Speaker 01: Mr. Morrison, who for, what, five years now has been battling this, has won, has vindicated his rights, and has been told, well, they can just pretend that they didn't write. [00:45:41] Speaker 01: Or the government, who's violated this man's constitutional rights and walks away. [00:45:48] Speaker 01: Who's better off? [00:45:50] Speaker 01: Who came out ahead in that equation? [00:45:52] Speaker 01: And if the question is, [00:45:54] Speaker 01: Who should we? [00:45:55] Speaker 01: It's imperfect. [00:45:56] Speaker 01: You're never going to be able to carve your relief out just so. [00:45:59] Speaker 01: Whose side should we err on? [00:46:01] Speaker 01: Should we err on the side of the wrongdoer or err on the side of the victim? [00:46:05] Speaker 01: I think it's clear. [00:46:06] Speaker 01: So I submit, Your Honor, that there simply is no precedent in this court that would support the board's decision. [00:46:13] Speaker 01: The precedent is completely against it. [00:46:16] Speaker 01: And Jarmin, Your Honor, they said in the first instance, let the board decide back bay. [00:46:23] Speaker 01: Court did not say, you don't get back pay. [00:46:25] Speaker 01: They just said, let the board decide in the first instance. [00:46:28] Speaker 01: There's no precedent for it. [00:46:29] Speaker 01: The precedent in this court and the Supreme Court is against it. [00:46:33] Speaker 03: Well, why is that then different from this case in saying, let the agency decide, well, let the decision be made whether there's going to be any back pay? [00:46:41] Speaker 01: So in the first instance, so are you asking, as a question of jurisdiction, [00:46:49] Speaker 01: So the question is, is the question that we present here in this case, and the reason that we're here now. [00:46:55] Speaker 03: No, it's part of what the status quo ante was. [00:46:57] Speaker 03: If the status quo ante was, is there going to be some back pay? [00:47:00] Speaker 03: And yes, so if so, how much? [00:47:02] Speaker 01: So exactly. [00:47:03] Speaker 01: And the board has said, you can play this reconstruction game in ascertaining what the status quo ante is. [00:47:10] Speaker 01: And we say, no, you cannot. [00:47:11] Speaker 01: And we're coming here to this court now to say, not that we disagree with your calculation of back pay. [00:47:19] Speaker 01: but that you cannot go down that path. [00:47:21] Speaker 01: You cannot play the game of reconstruction and say what you would have done if you hadn't messed it up in affecting this man's entitlements under due process. [00:47:31] Speaker 01: That's the distinction, Your Honor. [00:47:33] Speaker 01: So if there are, go further. [00:47:35] Speaker 01: I apologize for exceeding my time. [00:47:38] Speaker 02: No, thank you. [00:47:39] Speaker 02: The argument was helpful from both of you. [00:47:41] Speaker 02: Thank you. [00:47:42] Speaker 02: The case is taken under submission. [00:47:44] Speaker 01: Thank you.