[00:00:08] Speaker 04: Final case for argument this morning is 171734, HOGO sign versus DHS. [00:00:50] Speaker 04: We have a bit of an unusual circumstance in this case because you came in a little later in the game, but we are allowing an argument, so please proceed. [00:00:59] Speaker 02: Thank you, Your Honors. [00:01:00] Speaker 02: If you may please the court. [00:01:03] Speaker 02: I believe the arbitrator committed a due process violation when he overlooked the fact that the employee in this case requested an oral reply by the deadline that he was given in writing, and he was not allowed to make an oral reply before a final decision is issued. [00:01:21] Speaker 04: Wait a minute, I'm a little unclear on that. [00:01:23] Speaker 04: He requested the oral reply before the deadline. [00:01:27] Speaker 04: That's what you said, right? [00:01:28] Speaker 04: That's correct. [00:01:29] Speaker 04: Is that what the deadline was for, was for you can request the, if you want an oral reply, you can request it by June 30th, 2016? [00:01:40] Speaker 02: If you look at the written instructions that was given to the employee, he was told if he wanted an oral reply that he should do so by requesting one in writing [00:01:48] Speaker 02: in a letter addressed to the deciding official, which is what he did. [00:01:53] Speaker 02: I can also tell you that that's the standard procedure that I've seen in some 15 years of I representing federal employees in these types of cases. [00:02:00] Speaker 03: A reply is due, and you can do it either orally or in writing. [00:02:04] Speaker 03: And they tell you that all communications have to be written, and you can either file a written reply or you can request an oral reply. [00:02:17] Speaker 03: So that's the way it normally works. [00:02:19] Speaker 03: I get that. [00:02:20] Speaker 03: But what happened here is that with the third extension, they said you replied. [00:02:26] Speaker 03: So that meant in whatever form you replied, whether it's oral or written, is due by X date. [00:02:33] Speaker 03: Isn't that what it really said? [00:02:36] Speaker 02: Your Honor, it's been my experience that federal employees frequently make a written response and give an oral reply to charges against them. [00:02:44] Speaker 02: And I believe [00:02:45] Speaker 02: The third extension request that was given to the employee said that he had a right to respond orally or in writing. [00:02:51] Speaker 04: That's all correct, but it says your reply, which I assume means the oral or the written reply is due no later than the close of business, June 3, 2016. [00:03:04] Speaker 02: Your Honor, I can tell you that deciding officials that work for the Department of Homeland Security, especially legacy immigration offices, [00:03:14] Speaker 02: supervise over a thousand people, they don't take phone calls from employees, they don't take phone calls from employees' attorneys, this idea that the employee should have called in advance to request an oral reply. [00:03:25] Speaker 02: In my experience, even if he had called, he would have been told that someone would have gotten back to him. [00:03:31] Speaker 04: Well, no one suggested a call, but once I'm missing something, it's at Appendix 69, it said, all correspondence, blah, blah, blah, and request to reply orally should be in writing [00:03:42] Speaker 04: to the Los Angeles field office. [00:03:44] Speaker 04: So did he submit a request to the Los Angeles field office a request that would have allowed him to have an oral reply before June 30th? [00:03:52] Speaker 02: He did. [00:03:52] Speaker 02: His attorney on June 30th at 322 in the afternoon faxed a letter to the [00:03:59] Speaker 02: district director's office for Los Angeles district. [00:04:03] Speaker 04: Well you would agree right that that request did not would not have as practical any kind of matter allowed for him to provide an oral reply before the deadline at the close of business of June 30th right? [00:04:16] Speaker 02: I would argue your honor that the deadline to request an oral reply was the end of the day by June 30th. [00:04:22] Speaker 02: I'd also like to point out that the government didn't issue a final decision in this case for some six weeks until the middle of August of [00:04:30] Speaker 02: 2016 and they had the entire month of July and the first two weeks in August to schedule an oral reply if they had wanted to. [00:04:36] Speaker 02: They simply didn't want to hear the employee's oral reply in this case and they ignored him. [00:04:40] Speaker 03: The fact that they might have been able to do it or they could have extended the deadline yet again to allow them to do it, that doesn't mean that the failure to do it is necessarily a due process violation, does it? [00:04:53] Speaker 02: I respectfully disagree, Your Honor. [00:04:55] Speaker 02: My reading of the written instructions that were given to the employee [00:04:59] Speaker 02: that all he had to do is request an oral reply by the deadline, not that he actually had to have one completed by the deadline. [00:05:07] Speaker 02: And if you look at the Massey case that was cited in the brief, I believe it's similar. [00:05:11] Speaker 02: And the board in that case ruled that as long as the employee requested an oral reply by the deadline, that the government was obligated to provide him with one before they issued a written decision on the case. [00:05:28] Speaker 02: I'd also like to point out that the government has argued that the employee is given plenty of time. [00:05:37] Speaker 02: However, as frequently happens in these types of cases, the employee initially designated the union as his representative, and then he later went out and hired a private attorney as his representative. [00:05:51] Speaker 02: And the agency refused to [00:05:56] Speaker 02: communicate directly with the attorney until they identified who was the representative, either the union or the attorney. [00:06:02] Speaker 02: I don't see any reason why the employee couldn't have used two representatives, as is frequently done by the government in the cases I oppose them in. [00:06:10] Speaker 02: And also, the designation for his attorney was subsequent to the designation for the union, and it should have superseded and replaced the union's designation. [00:06:22] Speaker 02: The agency should have been communicating with [00:06:25] Speaker 02: the attorney and they weren't doing it. [00:06:27] Speaker 02: So I think the agency is at least partially responsible for the delays in this case. [00:06:33] Speaker 02: And again, that mirrors the Massey case where there was a union and an attorney handling the case for the employee and the government was not communicating with the employee's attorney and that was partially responsible for the delays. [00:06:49] Speaker 02: I'd also like to point out that in my reading of the Alfred case, [00:06:54] Speaker 02: The employee could have merely mailed a written response requesting an oral reply by the deadline of June 30th. [00:07:01] Speaker 02: That might not have been received for several days afterwards. [00:07:04] Speaker 02: In this case, he faxed a letter to the agency and they admitted that they received it by the deadline. [00:07:11] Speaker 02: If they had wanted to schedule an oral reply, they could have immediately called back the employee's attorney and scheduled one. [00:07:20] Speaker 02: perhaps for the next day. [00:07:21] Speaker 04: Yeah, but didn't the notice that was given in Alfred's, give him the notice explicitly said, I think, that you've got two weeks to request an oral reply. [00:07:31] Speaker 04: In contrast, the notice here was not dealing with to request a reply. [00:07:37] Speaker 04: It said the reply is due no later than the close of business. [00:07:40] Speaker 04: So isn't that a meaningful distinction between the two cases? [00:07:44] Speaker 02: I believe the language that was given to this employee in this case was contradictory. [00:07:50] Speaker 02: The final extension request that was sent out on June 14th, I believe, it says if you want to request an oral reply, you must do so in writing to the deciding official. [00:08:03] Speaker 02: It doesn't say anywhere in the instructions that were given to the employee that the oral reply had to be completed by July 30th. [00:08:09] Speaker 02: It just said he had to request an oral reply by July 30th. [00:08:13] Speaker 04: Well, it says the reply, which presumably encompasses oral and written, is due no later than June 30th. [00:08:21] Speaker 04: Is that ambiguous? [00:08:24] Speaker 02: It also says if he wants to request an oral reply, it has to be done in writing by the deadline. [00:08:29] Speaker 04: I can tell you that... It doesn't say... Does it really... Does it say that? [00:08:32] Speaker 04: I mean, it says if you want to request an oral reply, here's how to do it. [00:08:37] Speaker 04: Does it say by the deadline? [00:08:40] Speaker 02: I believe it does say by the deadline. [00:08:53] Speaker 04: I don't have the exact language in front of me, but my reading of the... Are we dealing with the June 16th, 2016? [00:09:05] Speaker 04: That's the operative document, right? [00:09:09] Speaker 04: Okay. [00:09:10] Speaker 02: It does say your reply is due no later than close of business. [00:09:14] Speaker 02: It also says the request to respond orally should be addressed to writing. [00:09:20] Speaker 02: I would argue that that is open to interpretation. [00:09:24] Speaker 02: And that in my past practice of handling these types of cases, all one has to do is request an oral reply by the deadline. [00:09:31] Speaker 02: And that triggers the employee's due process right. [00:09:33] Speaker 02: And an oral reply has to be given before a decision can be issued. [00:09:55] Speaker 02: All right. [00:09:55] Speaker 02: In my experience, the government has all kinds of built-in advantage when they discipline a federal employee. [00:10:00] Speaker 02: They frame the charges. [00:10:02] Speaker 02: They decide what the discipline is going to be. [00:10:04] Speaker 02: Administrative judges are told they have to show deference to the deciding official's decision unless it's clearly outside the limits of reasonableness. [00:10:16] Speaker 02: I believe that the oral reply is the most important right an employee has. [00:10:20] Speaker 02: It's the only chance he has to tell his side of the story to the person that's going to decide his fate. [00:10:25] Speaker 02: And it's an important check and balance that should not be overlooked and should be honored if one is requested. [00:10:34] Speaker 02: I also believe that it's important policy to give an employee an oral reply because the lack of giving him an oral reply can lead to extended litigation is what's happened in this case. [00:10:44] Speaker 02: I've handled several cases. [00:10:46] Speaker 02: Proposed removals were after an oral reply. [00:10:48] Speaker 02: The removal was mitigated to a suspension or even a letter of written reprimand. [00:10:54] Speaker 02: So I believe it's important policy to preserve the right of a federal employee to receive an oral reply if he requests one. [00:11:03] Speaker 02: And also, I believe if you read the case precedence, that all an employee has to do to trigger that right is to request one by the deadline, which is what was done in this case. [00:11:14] Speaker 02: The Massey case does say that if the government is going to change the deadline in which the oral reply needs to be completed, that that needs to be explicitly spelled out. [00:11:24] Speaker 02: in Phoebe's written instructions, which I would argue was not done in this case. [00:11:28] Speaker 02: The letter is ambiguous, and it says he has to request by the deadline. [00:11:32] Speaker 02: Also, I don't believe the government should be rewarded for their bad behavior by refusing to communicate with the employee's attorney for two or three weeks and causing the need for a third extension. [00:11:44] Speaker 03: If they were cooperating... Did the MSPB in either Alfred or Massey expressly say that it was deciding what process was due under Loudermilk? [00:11:55] Speaker 03: And those weren't due process determinations, were they? [00:12:01] Speaker 02: They did quote the passage from Lauderdale where they said the requirement of due process is a hearing before the decision maker, before a decision is issued. [00:12:11] Speaker 02: I would argue that the hearing would refer to the oral reply for the federal employee and that... But why isn't a written reply a sufficient opportunity under latter law? [00:12:25] Speaker 03: to respond to the charges against him. [00:12:28] Speaker 02: There's nothing in case law I've found that says if an employee submits a written reply that they are therefore precluded from also offering an oral reply in addition to their reply. [00:12:38] Speaker 03: I'm not saying it doesn't matter whether they're precluded. [00:12:40] Speaker 03: The question is whether it is required under the due process clause of the Constitution. [00:12:46] Speaker 02: I would argue that based on the language in Lauderdale that says the root requirement is a hearing before the decision maker [00:12:53] Speaker 02: that the hearing would indicate the employee has a right to an oral reply. [00:12:57] Speaker 02: I don't think a written reply corresponds with the word hearing. [00:13:02] Speaker 02: I think hearing suggests a face-to-face meeting or some type of testimony or statement. [00:13:11] Speaker 04: I don't have Laudamil in front of me. [00:13:13] Speaker 04: I think what I do have is a quote from Laudamil that says he has to have an opportunity to present his side of the story. [00:13:20] Speaker 04: I guess that could encompass either an oral or written reply, right? [00:13:25] Speaker 02: All I can say is I respectfully disagree. [00:13:27] Speaker 02: But if this court thinks that if an employee submits a written reply is therefore not also entitled to an oral reply, then please rule so. [00:13:34] Speaker 02: But I firmly believe that the right to the oral reply is an important fundamental due process and procedural right. [00:13:41] Speaker 02: that should not be overlooked. [00:13:43] Speaker 02: It should not be taken away. [00:13:44] Speaker 04: Well, the real issue in this case is not whether or not he should have been entitled to, I mean, there's, entitlement does not encompass that he doesn't have to adhere to whatever time limits are asserted with respect to when that reply comes. [00:13:58] Speaker 04: I mean, he's entitled to a written reply, but if he hadn't complied with the time limit, you wouldn't be here saying due process has been violated, right? [00:14:08] Speaker 02: I don't believe the [00:14:10] Speaker 02: agency in this case would have given him an oral reply even if he had faxed that letter in a day or two earlier and I would argue that the act of faxing the letter in by the deadline triggered and reserved his right to give the oral reply and that he did meet the written requirements instructions that were provided to him and that he should have been given his due process right before a decision was issued. [00:14:52] Speaker 00: May it please the court. [00:14:54] Speaker 00: The court should affirm the arbitrator's decision below because the arbitrator correctly concluded that Mr. Pogozian received due process before his removal from employment. [00:15:04] Speaker 00: As the Supreme Court held in Loudermill and as this court echoed in Darnell and in Stone, all that an employee is entitled to before he is removed is notice and a meaningful opportunity to respond, and that is what Mr. Pogozian received here. [00:15:17] Speaker 03: But if you look at Albert and Massey, [00:15:20] Speaker 03: Doesn't it seem that the normal practice had been to say you can file your written reply by X date or request an oral reply by the same date? [00:15:31] Speaker 00: Well, I would refer the court to the statute which prescribes the procedures that apply to removals of employees. [00:15:37] Speaker 00: 7513B lays out all the steps that the agency must follow before removing an employee. [00:15:43] Speaker 00: And in subsection B2, it says that the employee is entitled to a reasonable time, not less than seven days, [00:15:50] Speaker 00: to respond. [00:15:51] Speaker 03: It doesn't set us to respond orally and in writing. [00:15:54] Speaker 00: Correct. [00:15:55] Speaker 03: It's not or in writing. [00:15:57] Speaker 00: That's correct, Your Honor. [00:15:58] Speaker 00: It is both. [00:15:59] Speaker 00: But importantly, that subsection does not set out a separate deadline to request to schedule an oral reply. [00:16:05] Speaker 00: It is a firm deadline. [00:16:06] Speaker 01: We're not asking about what the statute says. [00:16:08] Speaker 01: We're trying to understand the custom of practice here and whether it's customary, as your friend on the other side says, [00:16:19] Speaker 01: is that when the deadline is being set, the deadline encompasses permitting someone to file a request for an oral reply by the deadline, even if the actual oral reply occurs after the deadline. [00:16:35] Speaker 01: And could you speak to that in terms of understanding for us what is the customary practice here? [00:16:44] Speaker 00: Well, I'm not sure that I can speak to the custom. [00:16:46] Speaker 00: And in particular, in Alford and in Massey, different agencies were involved. [00:16:50] Speaker 00: Here we're talking about USCIS and the Department of Homeland Security. [00:16:54] Speaker 00: What I can tell you is what's in the record, and what I can tell you is what the arbitrator found on the basis of the record. [00:16:59] Speaker 00: There are correspondence that set out the deadlines. [00:17:01] Speaker 00: There's the notice of proposed removal, which says you have 10 days from receipt to get your written response with the agency and 10 days to request to schedule an oral reply. [00:17:13] Speaker 00: Extensions were given after they were requested by the agency, and each of those subsequent correspondence, both the requests and the responses granted the extensions, were always couched in terms of the deadline to respond or the deadline to reply. [00:17:28] Speaker 00: The arbitrator looked at the course of dealings between the parties, read the correspondence, heard testimony from the decision maker, and made a finding that the deadline on June 30th was a firm deadline to reply and not to schedule an oral reply. [00:17:43] Speaker 00: That finding is supported by substantial evidence. [00:17:45] Speaker 03: Doesn't the second half of the notice to him, isn't it a little confusing? [00:17:49] Speaker 03: All written correspondence, including any written reply and or request to reply orally, should be submitted in writing. [00:17:58] Speaker 03: Doesn't that at least imply that written reply and request to reply orally are different things? [00:18:08] Speaker 00: Yes, there is certainly a distinction between the request to give an oral reply and the giving of the oral reply. [00:18:14] Speaker 00: But the language that Your Honor is looking at is essentially form language that appears in every single correspondence from the agency to the employee. [00:18:22] Speaker 00: And that just directs the employee to send any written correspondence of any kind to the deciding official at a particular address. [00:18:29] Speaker 00: The arbitrator looked at that language and correctly concluded that they did not extend the deadline, the firm deadline to give the reply. [00:18:36] Speaker 00: to include a request to schedule an oral reply. [00:18:42] Speaker 00: At the end of the day, what the court has to determine is whether Mr. Boghossian had a meaningful opportunity to respond. [00:18:48] Speaker 00: And what the Supreme Court said in Loudermill is that a meaningful opportunity to respond is an ability to appeal to the discretion of the decision maker, to give his side of the story, and to provide the reasons why he should not be fired. [00:19:01] Speaker 00: Mr. Boghossian had all of those and more [00:19:05] Speaker 00: He was given more time than was otherwise afforded by the statute to give a response. [00:19:09] Speaker 00: He was afforded multiple deadlines. [00:19:12] Speaker 00: He submitted a written response by the deadline in which he went through each chart and specification in detail and gave his reasons why the comparables were not comparable and why he should not be fired. [00:19:25] Speaker 00: The fact that he did not convince the deciding official not to fire him does not mean he was denied due process. [00:19:31] Speaker 00: I would also emphasize that the court held in Darnell very clearly [00:19:35] Speaker 00: that the opportunity to respond is not a guarantee that the employee must be able to present his story prior to his removal. [00:19:42] Speaker 00: Again, all that we're focused on here is whether he had a meaningful opportunity to do so. [00:19:47] Speaker 00: The arbitrator concluded that he had that conclusion is supported by substantial evidence and is not contrary to law. [00:19:53] Speaker 00: And if the court doesn't have any other questions, we would ask that the court affirm. [00:19:58] Speaker 04: Thank you. [00:19:58] Speaker 00: Thank you. [00:20:12] Speaker 02: Court, I'd like to get back to the question about scheduling an oral reply. [00:20:17] Speaker 02: It's been my experience that citing officials are busy people and attorneys are busy people, and usually the process is that an oral reply is requested and then dates are offered and there's a mutual back and forth in which a mutually agreeable date is selected. [00:20:32] Speaker 02: Oral replies are rarely given within the original response period. [00:20:36] Speaker 02: They are frequently scheduled after the response period has expired. [00:20:40] Speaker 02: That's the way I've seen it done for the last 15 years. [00:20:43] Speaker 03: Is it your experience that the practices are consistent across agencies and that the mere fact that this is Homeland Security doesn't change anything? [00:20:53] Speaker 02: That would be correct, Your Honor. [00:20:55] Speaker 02: I've handled cases for Department of Homeland Security, Department of Treasury, Department of the Air Force, Department of Defense. [00:21:01] Speaker 02: Procedures are similar across the board that I've encountered. [00:21:03] Speaker 02: An oral reply is usually requested in writing by the deadline and then [00:21:10] Speaker 02: dates are offered and scheduled at a future date that's mutually convenient for both sides. [00:21:19] Speaker 02: I also would disagree with the government's position that Mr. Pognozian, the employee, was given a meaningful opportunity to respond. [00:21:26] Speaker 02: He was not given his oral reply. [00:21:28] Speaker 02: During the hearing, the deciding official testified that even if he had given an oral reply, it wouldn't have changed her mind, which to me is [00:21:37] Speaker 02: dangerous thing to say because she had no idea what would have been said and she has no idea how she would have reacted to it and that is a dangerous position to take to a fundamental due process requirement. [00:21:52] Speaker 02: I'd just like to sum up by saying I hope you'll agree with me that the right to give an oral reply for federal employees is an important fundamental right that should not be overlooked under any circumstances if one is requested by the deadline [00:22:07] Speaker 02: And I urge you to set aside this ruling and remand it back to the arbitrator.