[00:00:03] Speaker 02:
We have six cases before the court this morning.

[00:00:07] Speaker 02:
Four of them are on argument.

[00:00:09] Speaker 02:
Two of them have been presented by briefs.

[00:00:13] Speaker 02:
So we're going to start with the first case, Para versus DHS.

[00:00:20] Speaker 02:
Mr. Martinez.

[00:00:21] Speaker 02:
Yes, sir.

[00:00:23] Speaker 02:
I understand you've reserved three minutes of your time for rebuttal.

[00:00:26] Speaker 02:
Is that correct?

[00:00:27] Speaker 03:
That is correct.

[00:00:28] Speaker 02:
OK, you may proceed.

[00:00:52] Speaker 03:
Good morning.

[00:00:56] Speaker 03:
We're here in front of you in order to review a decision by an arbitrator where he sustained the removal of a federal employee, specifically a Border Patrol agent, Adriana Pada.

[00:01:11] Speaker 03:
Adriana Pada worked in El Paso sector of the US Border Patrol.

[00:01:17] Speaker 03:
The US Border Patrol

[00:01:19] Speaker 03:
among other places, is located, was stationed or headquartered in El Paso, Texas, and that's where I office.

[00:01:27] Speaker 03:
When we had this matter come before the arbitrator, and I'm going to try not to restate matters that we brought in our brief, this had to deal with the removal due to a restriction on our driver's license.

[00:01:41] Speaker 03:
Ms.

[00:01:41] Speaker 03:
Bada had a DUI, and in the state of New Mexico, the state

[00:01:47] Speaker 03:
puts on a restriction, an interlock restriction where you have to physically blow into a vehicle before operating the vehicle.

[00:01:56] Speaker 03:
When we had this case come up, the removal notice stated that Ms.

[00:02:02] Speaker 03:
Plata was a GS11 employee.

[00:02:04] Speaker 03:
In fact, that initial notice was rescinded because the agency got the GS level incorrect.

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So they corrected it.

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They gave her the notice of removal.

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That was in October 24, 2014.

[00:02:18] Speaker 02:
So this device that you're talking about that she has to blow into in order to make the vehicle operable.

[00:02:25] Speaker 02:
Yes, sir.

[00:02:28] Speaker 02:
Do the vehicles of CVP have that already on them, or would they have to have been modified?

[00:02:35] Speaker 03:
They do not have them on there.

[00:02:37] Speaker 02:
So for parts of drives, the vehicle would have to have been modified.

[00:02:46] Speaker 03:
Correct, to drive a government vehicle.

[00:02:49] Speaker 03:
Right.

[00:02:49] Speaker 03:
Yes, and that was never in dispute.

[00:02:52] Speaker 03:
When we got forward through the case, Your Honor, we talked about several types of accommodations or issues that were going on.

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For example, we talked about how agents work administrative duties, where they would not regularly or have to drive a vehicle.

[00:03:08] Speaker 03:
In fact, that's the job that she had been doing for close to a year at the time of the removal.

[00:03:14] Speaker 03:
Second, in the hearing before the removal?

[00:03:17] Speaker 03:
That is correct, sir.

[00:03:18] Speaker 02:
She wasn't driving a government vehicle?

[00:03:20] Speaker 03:
She was not.

[00:03:21] Speaker 00:
She was on administrative-like duty as a result of some personal issues?

[00:03:26] Speaker 03:
Correct.

[00:03:27] Speaker 03:
She was put on administrative duties for a disciplinary matter.

[00:03:31] Speaker 03:
At some point, that disciplinary kind of faded away, and the agency went forward with the removal based on the interlocking restriction.

[00:03:39] Speaker 03:
But they kept her on administrative duties.

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Further, there was evidence in the hearing that

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Basically, there was a group of agents that would not be out in the field, so to speak, driving vehicles.

[00:03:52] Speaker 03:
As you can imagine, the Border Patrol has multi-levels of responsibilities and duties.

[00:03:57] Speaker 00:
Well, how much was proved before the arbitrator about that?

[00:04:02] Speaker 00:
I'm not recalling that the record before the arbitrator, insofar as I'm familiar with it, made clear

[00:04:15] Speaker 00:
that it was a sufficiently common arrangement within the office that there would be people who just could quite easily be spared from even the possibility of having to drive a vehicle.

[00:04:33] Speaker 00:
I thought the arbitrator on this record could agree with, was it Mr. Hummer?

[00:04:38] Speaker 00:
Hoffman?

[00:04:39] Speaker 00:
Hoffman, sorry.

[00:04:40] Speaker 00:
Hoffman saying, look, we really can't do that.

[00:04:45] Speaker 00:
We can't say, or we're going to have somebody who's just not going to be able to drive a vehicle because we're not going to retrofit the vehicles.

[00:04:51] Speaker 00:
That places a burden on everybody else.

[00:04:56] Speaker 00:
Why couldn't the arbitrator accept that testimony, thereby kind of eliminating what I took to actually be the heart of the case, which is why couldn't they have just left her on administrative duty for the year until the license restriction lasts?

[00:05:12] Speaker 03:
Yes.

[00:05:12] Speaker 03:
And I think the record shows that there was

[00:05:15] Speaker 03:
contradictory information about the usage of vehicles.

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For example, there was another agent by the name of Ricardo Diaz who testified that.

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Basically, there were specific assignments to specific agents.

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They talked about how there was a number of agents that had just worked administratively in the station as opposed to being out in the field.

[00:05:42] Speaker 03:
the arbitrator, and this is the crux of this appeal, is the crux of this appeal doesn't go towards whether or not she had driving restrictions or whether or not the agency could have accommodated her by allowing her to work administrative duties for three or four more months before she was terminated.

[00:06:02] Speaker 03:
What this appeal is for, and it's very direct, is that this arbitrator, in his analysis, used the reinstatement

[00:06:11] Speaker 03:
And I actually think if he had gone into the analysis of basically whether four or three more months was an accommodation that the agency could do and has done for the other agents at the station or nationwide, we wouldn't be here.

[00:06:29] Speaker 01:
But the arbitrator did discuss the requirement of her position, the requirement that she have the ability to drive an automobile.

[00:06:41] Speaker 01:
and that as a result of this restriction, she was no longer able to fulfill that obligation, correct?

[00:06:50] Speaker 03:
That is correct.

[00:06:51] Speaker 03:
He made that conclusion.

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However, specifically, he relied on a line of cases.

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For example, in his argument or in his analysis, he divided his analysis into two parts, essentially.

[00:07:04] Speaker 03:
He divided condition of employment, and he also discussed

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In other words, how she was treated compared to other agents at the sector.

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In both parts of his analysis, he cites the reinstatement program as a controlling factor on finding on behalf of the agency and not Ms.

[00:07:21] Speaker 03:
Potter.

[00:07:22] Speaker 02:
I thought he also cited the condition of employment as a factor and that he found that Ms.

[00:07:30] Speaker 02:
Potter must meet the conditions of employment both before employment and continuing during the term of employment.

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and found that Ms.

[00:07:40] Speaker 02:
Farr could not perform her duties without a valid driver's license.

[00:07:43] Speaker 02:
And when I look at some of the various conditions of employment, there seems to be quite a number of them that would require a vehicle and a valid driver's license, apart from the specific requirement itself that the person have a valid driver's license.

[00:08:03] Speaker 02:
So what's your response to that?

[00:08:05] Speaker 02:
The arbitrator did.

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cite to the conditions of employment.

[00:08:10] Speaker 03:
Correct.

[00:08:11] Speaker 03:
And you're referring to basically the condition of employment analysis that starts on Appendix 30 and goes through 33.

[00:08:19] Speaker 03:
I need to highlight what he concludes his analysis.

[00:08:23] Speaker 03:
He said specifically, the reasoning in Schaffner is more persuasive due to the ability for an employee to seek reinstatement once the impediment is removed.

[00:08:32] Speaker 03:
In other words, Schaffner basically was the line of cases that said,

[00:08:36] Speaker 03:
You don't look at things after the removal.

[00:08:42] Speaker 03:
We cited cases in Morgan and Street and others that said, no, when those impediments are removed, that's a matter that can be considered by the arbitrator.

[00:08:52] Speaker 01:
But it seemed to me reading his decision in its entirety and reading through all of the analyses that he did, including the analysis relating to her failure to continue to meet the condition of employment

[00:09:06] Speaker 01:
The comment about, well, Schaffner is more persuasive because she could be reinstated seemed to me, he was simply saying, and by the way, I feel comfortable with the decision that I've made and feel comfortable that it falls on the Schaffner and Benally side of things rather than Street and Morgan.

[00:09:30] Speaker 01:
But I think that's just simply a conclusion not

[00:09:34] Speaker 01:
the sole reasoning behind his decision.

[00:09:37] Speaker 03:
And it's more of his exclusion of consideration.

[00:09:40] Speaker 03:
For example, the preceding sentence makes clear what his... Where are you reading, counsel?

[00:09:45] Speaker 03:
I'm reading from the bottom of Appendix 33.

[00:09:48] Speaker 03:
I said that he is... I just cited the lines that says his reasoning is more persuasive due to the reinstatement program being available to Ms.

[00:09:56] Speaker 03:
Patta.

[00:09:56] Speaker 03:
The preceding sentence says the arbitrator is limited to the line of cases.

[00:10:02] Speaker 03:
So what he's doing

[00:10:04] Speaker 03:
is excluding the consideration of the removal of her impediment four months later.

[00:10:10] Speaker 03:
He's excluding consideration of the cases cited by Ms.

[00:10:15] Speaker 03:
Potter, said that you can consider this information.

[00:10:18] Speaker 03:
And that's what we believe is the fractional legal error in this case.

[00:10:22] Speaker 03:
And when we presented that issue in front of this court, we made clear that the reinstatement program doesn't even apply.

[00:10:30] Speaker 03:
to GS11s.

[00:10:31] Speaker 03:
However, it is strewn throughout this analysis.

[00:10:35] Speaker 01:
Why isn't that a harmless error?

[00:10:38] Speaker 01:
He did state that he couldn't consider evidence after removal, but in fact he did.

[00:10:46] Speaker 01:
He did consider that.

[00:10:50] Speaker 03:
He made no finding that the fact that she was going to be released from a restriction four months later was harmless.

[00:10:59] Speaker 03:
He made no such finding.

[00:11:01] Speaker 03:
He made no such finding that basically the impediment of the interlock device didn't matter.

[00:11:12] Speaker 01:
I think it would be different.

[00:11:13] Speaker 01:
That was the basis for his.

[00:11:14] Speaker 01:
That's the reason why he discussed all these cases.

[00:11:17] Speaker 01:
Street and Morgan and Schaffner and Benally.

[00:11:20] Speaker 03:
And what he talked about was that this restriction was a condition of employment that Ms.

[00:11:25] Speaker 03:
Potter had to meet

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However, he specifically divided the line.

[00:11:29] Speaker 03:
He created a benchmark and said, after this point, I'm not considering any evidence or legal argument that she could be reinstated.

[00:11:37] Speaker 03:
And that's where we think the factual and legal error occurred, especially including the fact that the reinstatement program on its face only applies to GS-12 and up.

[00:11:49] Speaker 03:
We pointed that out in the brief.

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We pointed that out that it was a red herring.

[00:11:55] Speaker 03:
you know, frankly, you know, not only does he use that in the condition of employment analysis, but again, regarding the disparate of treatment, again, he says the arbitrator lacks authority.

[00:12:09] Speaker 03:
We believe the legal error comes from him not even attempting to address the union's arguments regarding the impediment being removed after the date of removal.

[00:12:21] Speaker 03:
And we believe that the basis for him

[00:12:25] Speaker 03:
would have been different if he had not considered the reinstatement program and relied on it so heavily.

[00:12:34] Speaker 03:
Just to highlight that, we cited the testimony, because we are talking about the testimony of what actually happened in the arbitration.

[00:12:42] Speaker 03:
The arbitrator did ask, like, why do I even have to pay attention to this program?

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Why is it important?

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And agency counsel said it very clearly.

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He says, this pilot's remedy is not this hearing.

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is not this grievance, it's with the reinstatement program.

[00:12:57] Speaker 03:
Was it, was the license condition for one year?

[00:13:01] Speaker 03:
It was from one year and it expired in April of 2015.

[00:13:04] Speaker 03:
2015?

[00:13:05] Speaker 00:
Yes, sir.

[00:13:08] Speaker 00:
So by the time of the, I guess the October 15th, 2015 arbitration hearing and the February 2016 arbitrator decision, that condition had lapsed.

[00:13:23] Speaker 03:
At the time of the arbitration and the decision, that restriction had gone away.

[00:13:29] Speaker 03:
In fact, it went away three to four months after the removal in April of 2015.

[00:13:34] Speaker 03:
So by the time we get to the arbitration, which is six or seven months later, and we get to the decision, which is 10 months later, that restriction is removed.

[00:13:46] Speaker 03:
And that's why Ms.

[00:13:47] Speaker 03:
Pata said, please consider these line of cases.

[00:13:51] Speaker 03:
That says once these impediments are removed,

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That's a factor that you can consider as an arbitrator.

[00:13:58] Speaker 03:
An arbitrator said take that argument for reinstatement.

[00:14:03] Speaker 03:
He said you can go to reinstatement throughout this program.

[00:14:10] Speaker 02:
So the arbitrator, she's looking to be reinstated in a way that's separate from challenging the removal in the first instance.

[00:14:20] Speaker 03:
There are separate processes, one that applied to Ms.

[00:14:23] Speaker 03:
Pada, and again, the reinstatement program didn't even apply.

[00:14:27] Speaker 03:
And our problem is that, Ms.

[00:14:30] Speaker 03:
Pada's problem is that her eligibility, her option to take the reinstatement program is used as a factor in his decision making in this decision, both on disparate treatment, how it was treated compared to other employees, and basically also in regards to his interpretation of condition of employment.

[00:14:49] Speaker 03:
You're into your rebuttal time.

[00:14:51] Speaker 03:
Do you want to save it?

[00:14:52] Speaker 03:
I'll save it.

[00:14:53] Speaker 03:
Okay.

[00:14:53] Speaker 03:
Thank you.

[00:14:59] Speaker 04:
May it please the court.

[00:15:00] Speaker 04:
The court should affirm because the arbitrators finding that there was a nexus or a rational connection between the removal of Ms.

[00:15:10] Speaker 04:
Parra for her failure to maintain a driver's license and the efficiency of the service is supported by substantial evidence.

[00:15:19] Speaker 04:
The arbitrator in his decision goes through the substantial evidence in the record before him.

[00:15:26] Speaker 04:
He quotes extensively from the position description for a border patrol agent.

[00:15:32] Speaker 00:
Can you address what I think Mr. Martinez said was really the only thing that I think he said this appeal is about, which is the arbitrator made a

[00:15:43] Speaker 00:
very important factual mistake about eligibility for reinstatement and relied on that factual mistake.

[00:15:51] Speaker 00:
Can you address whether A, it was a factual mistake, and B, whether the arbitrator relied on it?

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

[00:16:02] Speaker 04:
First of all, there was no factual mistake.

[00:16:05] Speaker 04:
There are two agency memoranda in the record before the arbitrator.

[00:16:11] Speaker 04:
One is the memoranda from 2011, and then there's a memorandum from 2015, which was actually issued after she was removed.

[00:16:21] Speaker 04:
The 2015 memorandum puts the authority at the local level, and it states that individuals can be reinstated at the local level.

[00:16:35] Speaker 04:
The decision can be made for anyone GS14 and below.

[00:16:39] Speaker 04:
GS 14 and below is a quote from that 2015 memorandum.

[00:16:45] Speaker 04:
I think their argument is based on the 2011 memorandum.

[00:16:49] Speaker 04:
That memorandum does not say that it is limited to GS 12s and above.

[00:16:57] Speaker 04:
It applies to Border Patrol agents.

[00:17:00] Speaker 04:
And that was the testimony that was given at the hearing by Chief Huffman.

[00:17:09] Speaker 04:
You asked secondly, does it make any difference?

[00:17:12] Speaker 04:
It's our contention.

[00:17:14] Speaker 04:
It makes no difference at all.

[00:17:16] Speaker 04:
The decision of the arbitrator is based on the law.

[00:17:23] Speaker 04:
And it's a correct decision based on correct law, correct statement of the law, and the substantial evidence.

[00:17:30] Speaker 04:
I would refer, in addition to going through all the evidence, the position description, the testimony,

[00:17:37] Speaker 04:
of the Assistant Chief Huffman, which he credited.

[00:17:40] Speaker 04:
At page appendix 32, he quote, I'll quote here, he says in his opinion, quote, as persuasive authority in a different case, the withdrawal of the appellant's ATCS certificate was held to be directly related to his qualifications to perform the duties of an air traffic control specialist position.

[00:18:05] Speaker 04:
That's the Thompson

[00:18:06] Speaker 04:
case from the MSPB.

[00:18:08] Speaker 04:
He goes on and then he also cites to Curry versus the Department of Housing and Urban Development, which is a case where a employee's law license was suspended or revoked and they could no longer perform their duties as an attorney and they were removed.

[00:18:26] Speaker 04:
So at that point of the opinion of the arbitrator, he's stating that those are the persuasive authorities that he is relying on.

[00:18:35] Speaker 04:
He also had, before that point in his opinion, he had cited to the opinions from the MSPB that involved the revocation of a driver's license.

[00:18:49] Speaker 04:
There were the Benally case and the, there's some Snowfair case that all these are one-year revocations of driver's license and employees are removed because they cannot

[00:19:05] Speaker 04:
meet the conditions of their employment.

[00:19:09] Speaker 00:
Can I ask, this may be just a curiosity, but does the record tell us anything about whether Ms.

[00:19:17] Speaker 00:
Parra has in fact sought or obtained reinstatement?

[00:19:23] Speaker 04:
The record does not tell you.

[00:19:26] Speaker 00:
She is still... Some knowledge though, there is knowledge about that?

[00:19:31] Speaker 04:
Yes, Your Honor.

[00:19:32] Speaker 04:
Um, I would point out the, she was removed on November 25th, 2014.

[00:19:38] Speaker 04:
The three year period has not let yet elapsed.

[00:19:42] Speaker 04:
He still has three years to apply, um, under the agency memoranda.

[00:19:50] Speaker 04:
And if she applies within that window, she doesn't have to go back through the academy.

[00:19:55] Speaker 04:
Now that's not saying that, uh, she will get it.

[00:20:00] Speaker 04:
I'm not making any sort of representation along those lines, because there are all these requirements.

[00:20:05] Speaker 04:
You have to be physically fit, mentally fit, background investigation.

[00:20:09] Speaker 04:
Everything has to be gone through.

[00:20:11] Speaker 04:
But the window is still there.

[00:20:13] Speaker 04:
And to answer your question, it's more information as of yesterday that she had not applied.

[00:20:18] Speaker 01:
Ms.

[00:20:19] Speaker 01:
Kirschner, the arbitrator said on the bottom of appendix page 33,

[00:20:26] Speaker 01:
says the arbitrator is limited to reviewing the facts as they were before the deciding official.

[00:20:34] Speaker 04:
Yes.

[00:20:35] Speaker 01:
Mr. Martinez says that as a result of that, the arbitrator didn't consider the fact that the interlock requirement had already been lifted.

[00:20:47] Speaker 04:
We agree that that is a misstatement of the law, as we stated in our brief.

[00:20:52] Speaker 04:
But it's our contention that it's a harmless error.

[00:20:55] Speaker 04:
Because in fact, he did look at all the facts before him.

[00:20:58] Speaker 04:
He found as a fact in his decision that her license had been reinstated.

[00:21:03] Speaker 04:
In fact, that was the majority of the arguments before the arbitrator.

[00:21:08] Speaker 01:
Can you show me where he found that as a fact?

[00:21:12] Speaker 04:
Sure.

[00:21:12] Speaker 04:
Yes.

[00:21:22] Speaker 04:
If the court could look at appendix page 4, this is in the fine print at the top, April 9, 2015, Paris valid New Mexico driver's license reinstated.

[00:21:41] Speaker 04:
OK.

[00:21:42] Speaker 04:
And as I was just saying, the majority of the argument before the arbitrator was directed to the fact that this was

[00:21:50] Speaker 04:
a temporary that was revoked for only one year, and that it had gone away by the time of the hearing.

[00:22:00] Speaker 04:
The arbitrator, I wanted to point out, in his decision, he specifically credits the testimony of the assistant of the deputy chief, who's acting as the acting chief, Huffman, that keeping her on administrative duties would have wasted

[00:22:20] Speaker 04:
border patrol agent position.

[00:22:23] Speaker 04:
And because of that, because it's wasting a position that otherwise someone would- She was already in that position.

[00:22:33] Speaker 02:
She was already working in an administrative position.

[00:22:36] Speaker 04:
What had happened was there was an incident where she attempted suicide.

[00:22:42] Speaker 04:
And because of that, she was deemed medically unfit.

[00:22:47] Speaker 04:
to serve as an agent.

[00:22:48] Speaker 04:
And her weapon and her badge were removed.

[00:22:52] Speaker 04:
She couldn't be a Border Patrol agent.

[00:22:53] Speaker 04:
And for that period of time, she was restricted to administrative duties.

[00:23:01] Speaker 04:
And that restriction went into effect, I believe it's in, well, I can't recall when it started precisely, but it started when that incident occurred.

[00:23:17] Speaker 04:
As recently as December of 2013, the department's psychiatrist still deemed her unfit.

[00:23:27] Speaker 04:
And then the traffic incident that she's involved in occurs in January of 2014.

[00:23:35] Speaker 04:
And at that point, now she has an additional problem because now she can't drive.

[00:23:43] Speaker 04:
Her driver's license is taken away.

[00:23:48] Speaker 04:
And all she can do is have an interlock license.

[00:23:52] Speaker 00:
Can I ask, and then the removal doesn't occur, actually not proposed until October of 2014, and I guess removal very shortly after that.

[00:24:07] Speaker 00:
At that point, so by October 2014, does the record tell us anything about the status of essentially the medical based assignment to the office?

[00:24:24] Speaker 00:
But what I'm thinking obviously is if it were quite clear then that she was going to have to stay in that status for the medical reasons for the next six months.

[00:24:37] Speaker 00:
And I wonder.

[00:24:38] Speaker 04:
There were two cases proceeding independently.

[00:24:43] Speaker 04:
And in the case regarding her medical fitness, after December of 2013, they presented, Ms.

[00:24:54] Speaker 04:
Power, through her attorney, presented evidence that she now was fit for duty.

[00:24:59] Speaker 04:
They presented their independent psychiatric report.

[00:25:04] Speaker 04:
that there should be no impediment to her serving as a border patrol agent.

[00:25:11] Speaker 04:
But at that point in time, the license was already revoked and she had only the interlocks.

[00:25:19] Speaker 02:
At that point in time, had her license not been revoked, she would have been entitled to be on statement, correct?

[00:25:27] Speaker 02:
This is under the line of cases dealing with these type of situations.

[00:25:33] Speaker 02:
So what's odd about here is that her physical and mental disabilities have put her on administrative leave, then she's demonstrated she's okay and she's not disabling a lung.

[00:25:50] Speaker 02:
Then at that, under the Atlanta case, she's entitled for reinstatement.

[00:25:54] Speaker 02:
But if she loses her license and then gets back her license during this process, she's not entitled for reinstatement.

[00:26:02] Speaker 04:
And to clarify, at the point where she contends that she's physically fit, there had not yet been a decision by the agency agreeing or disagreeing with that.

[00:26:12] Speaker 04:
But assuming that the agency agreed, then she would have been returned to border patrol agent duties, assuming that she didn't have the problem with the license.

[00:26:22] Speaker 04:
She was never, I mean, she was never fired.

[00:26:24] Speaker 04:
So it's not a question of being reinstated.

[00:26:27] Speaker 04:
Because you're not fired.

[00:26:28] Speaker 04:
You're not terminated.

[00:26:29] Speaker 00:
I guess what I, what I was asking about before was, um, the opposite assumption.

[00:26:37] Speaker 00:
Suppose that the agency had said on the medical fitness, we disagree with you.

[00:26:42] Speaker 00:
We think you still need to stay in the office.

[00:26:45] Speaker 00:
And what's again, suppose they said, and we think you need to stay in the office until, um, May 2015 at that point.

[00:26:56] Speaker 00:
The absence of a driver's license couldn't matter to the job that you were going to have her do during that period.

[00:27:04] Speaker 04:
If the agency had disagreed with the report from her independent psychiatrist and basing their disagreement on the agency's psychiatrist, presumably the agency would have then gone forward with that and

[00:27:22] Speaker 04:
made a decision because they had already proposed her removal for being unfit.

[00:27:27] Speaker 04:
Understand that proposal had already gone out.

[00:27:30] Speaker 04:
And it was being held in abeyance because they wanted to get more information.

[00:27:36] Speaker 04:
And that additional information came in saying she's fit.

[00:27:41] Speaker 04:
So then it's up to the agency to evaluate all the evidence before them, make a decision.

[00:27:46] Speaker 04:
But that was put aside because, frankly, from the agency viewpoint, it was totally irrelevant at that point.

[00:27:53] Speaker 04:
She couldn't drive.

[00:27:54] Speaker 04:
She couldn't work as a Border Patrol agent.

[00:27:57] Speaker 04:
And as the Acting Chief Huffman testified, she was essentially, her situation was wasting a Border Patrol agent position that he needed to have filled by a Border Patrol agent.

[00:28:12] Speaker 04:
And so he went forward.

[00:28:13] Speaker 02:
When you say that, and this is what got me asking you questions, I'm not sure that that's a legally grounded basis to remove somebody, that they're wasting a border patrol position.

[00:28:28] Speaker 04:
Well, the basis, the reason she's removed is because she can no longer meet the conditions of her employment.

[00:28:36] Speaker 02:
OK, well, that's different.

[00:28:39] Speaker 04:
Yes.

[00:28:39] Speaker 04:
Yes, it is different.

[00:28:40] Speaker 04:
And as he said, in addition, he could no longer accommodate her.

[00:28:46] Speaker 04:
It is wasting a position and he has to run the office.

[00:28:49] Speaker 04:
But it's precisely because she can't function as a border patrol agent.

[00:28:54] Speaker 04:
Wasn't taking away that reasoning.

[00:28:57] Speaker 04:
I was just explaining further.

[00:28:59] Speaker 04:
And just to conclude, the arbitrator does make a finding that her removal

[00:29:11] Speaker 04:
was rationally connected to the efficiency of the service.

[00:29:16] Speaker 04:
That's a factual finding he made.

[00:29:18] Speaker 04:
It's supported by substantial evidence in the record.

[00:29:21] Speaker 04:
And we think the court should affirm.

[00:29:27] Speaker 04:
Thank you.

[00:29:30] Speaker 02:
Martina, you've got two minutes and a little over two minutes.

[00:29:40] Speaker 00:
Yes, Your Honor.

[00:29:42] Speaker 03:
To try to address those issues was the, again, the agency is still making the argument that the reinstatement applies to Ms.

[00:29:50] Speaker 03:
Potter.

[00:29:51] Speaker 03:
And you heard that throughout the hearing, throughout the brief, and in this very argument.

[00:29:56] Speaker 03:
It is clear from the language of the program it only applies for GS-12.

[00:30:00] Speaker 03:
This is on the appendix 484.

[00:30:04] Speaker 02:
Had the arbitrator's decision been based solely on the reinstatement issue,

[00:30:09] Speaker 02:
And I think you would have a stronger case.

[00:30:12] Speaker 02:
But the arbitrator made the decision on other grounds as well.

[00:30:18] Speaker 03:
And that's when we go to, does it make a difference?

[00:30:21] Speaker 03:
When you look at the language, just for example, disparate treatment, there was evidence of another agent, agent Delgado, that basically retained his job for almost identical circumstances.

[00:30:31] Speaker 03:
Same charge, aggravated DUI, all those things.

[00:30:34] Speaker 03:
Same state.

[00:30:35] Speaker 03:
So he has the same restrictions.

[00:30:37] Speaker 03:
What he specifically says is,

[00:30:38] Speaker 03:
No, but your case is different, Ms.

[00:30:41] Speaker 03:
Potter, because the provision for reinstatement was administered after your case.

[00:30:46] Speaker 03:
In other words, you're eligible for reinstatement, and that's why you're not like and similar or comparable to Agent Delgado.

[00:30:54] Speaker 03:
She also makes the... I would agree with you, sir, but for the fact that his very language says... That may be an error, but that's an error as to the statement of reinstatement.

[00:31:05] Speaker 02:
That's not an error as to the...

[00:31:08] Speaker 02:
the reasoning for the grounds of removal.

[00:31:10] Speaker 03:
But he uses the foundation of the reinstatement program to prove that Ms.

[00:31:16] Speaker 03:
Potter's arguments have no merit.

[00:31:19] Speaker 03:
Specifically, Delgado being comparator, no merit because of the reinstatement program.

[00:31:24] Speaker 03:
The conditions of employment.

[00:31:27] Speaker 03:
Our simple point was the Schaffner line of cases and Street and Morgan, which talk about considering factors after

[00:31:36] Speaker 03:
Their decision regarding the impediment should be read in concert or together.

[00:31:42] Speaker 03:
And what he specifically said is, no, those are two separate matters that I'm not going to intertwine specifically because of the reinstatement program.

[00:31:53] Speaker 03:
And he makes that clear in his arguments.

[00:31:56] Speaker 02:
Okay, you're out of time, Mr. Martinez.

[00:31:58] Speaker 02:
I'll let you conclude, make a concluding sentence if you want.

[00:32:02] Speaker 03:
Yes, sir.

[00:32:03] Speaker 03:
The reinstatement program was front and center.

[00:32:06] Speaker 03:
throughout the arbitration, throughout this decision, and even in this argument.

[00:32:13] Speaker 03:
To say that it was a harmless error I think is a stretch just based on the evidence that was before the matter.

[00:32:19] Speaker 03:
And also, if I may, the complication of this was that she was on administrative duties for a medical issue.

[00:32:27] Speaker 03:
The agency never removed her from that status prior to going forward with this removal.

[00:32:34] Speaker 03:
And again, those were facts that were just not paid attention to by this arbitrator because of the reinstatement program.

[00:32:43] Speaker 03:
OK.

[00:32:43] Speaker 03:
Thank you, sir.

[00:32:44] Speaker 02:
Thank you.

[00:32:51] Speaker 02:
Our next case is NRA.