[00:00:29] Speaker 00:
Our final case this morning is number 16-2106, Pope versus Navy, Mr. Jarrett.

[00:00:45] Speaker 04:
Good morning and may it please the Court.

[00:00:47] Speaker 04:
There are five errors in this case, the first two of which concern the probative value of hearsay evidence and proceedings before the Merit Systems Protection Board and the intersection of immutable principles of

[00:00:59] Speaker 04:
jurisprudence and adjudication that are contained in the Fifth Amendment with the relaxed standards of evidence in administrative proceedings.

[00:01:07] Speaker 00:
I'm wondering what really is disputed here.

[00:01:13] Speaker 00:
I mean, you're right, there are cases like Cooper which express concern about the use of hearsay testimony in proceedings like this where we're dealing with an essentially criminal act in particular, but here

[00:01:27] Speaker 00:
There's no question, but the petitioner here did hit his son with a belt.

[00:01:36] Speaker 00:
There is no argument that the son wasn't bruised.

[00:01:41] Speaker 00:
The issue is whether there was a connection between the two.

[00:01:46] Speaker 00:
And then the only other piece of relevant evidence that I saw was that the son

[00:01:52] Speaker 00:
made a statement that he'd been told not to talk about being hit with a belt, but that also seems to be undisputed that he said that.

[00:02:00] Speaker 00:
So I guess where are we in terms of what hearsay evidence that's disputed did the board rely on here?

[00:02:11] Speaker 04:
Yes.

[00:02:12] Speaker 04:
So it's disputed that the son said that he was told not to speak.

[00:02:19] Speaker 04:
And we believe that that's triple hearsay.

[00:02:22] Speaker 04:
And so we don't believe that that is accurate.

[00:02:26] Speaker 04:
It's also disputed that the petitioner engaged in any abuse.

[00:02:31] Speaker 04:
Yes, there's a difference, obviously, between abuse and spanking, which is permitted.

[00:02:37] Speaker 00:
Well, he said he hit him with a belt, right?

[00:02:40] Speaker 04:
That's correct.

[00:02:40] Speaker 04:
But we dispute that he caused the bruises and that if he... Oh, right.

[00:02:42] Speaker 00:
It's a question of the connection.

[00:02:44] Speaker 00:
So just focusing on the connection, there wasn't any testimony

[00:02:51] Speaker 00:
as I understand it, of a hearsay nature, making that connection.

[00:02:55] Speaker 00:
The board made the connection from two undisputed facts, as I understand it.

[00:03:02] Speaker 04:
I believe that the connection came from the police report that the board relied on that was in the agency file.

[00:03:08] Speaker 00:
Where did the police report make the connection?

[00:03:13] Speaker 04:
I believe that it says that the petitioner created

[00:03:18] Speaker 04:
caused extreme bruising to his son's backside.

[00:03:21] Speaker 01:
If the Lord relied more on just a police report for that particular factor, Mr. Pope admitted that he struck the child with a belt.

[00:03:30] Speaker 04:
I'm sorry?

[00:03:32] Speaker 01:
Mr. Pope admitted that he struck his child with a belt.

[00:03:36] Speaker 01:
So there's more than just a police report involved here.

[00:03:40] Speaker 04:
That's correct.

[00:03:41] Speaker 04:
I think that when you have to analyze, the board had to analyze whether there was abuse

[00:03:48] Speaker 04:
And so they have to decide based on, as far as whether there was abuse, the board had to look at the details of the bruising and the details which, and the only evidence... Are you saying they didn't do that?

[00:04:06] Speaker 04:
I'm saying that they relied on a hearsay police report.

[00:04:10] Speaker 00:
Where did they rely on the police report for the connection between the beating of the belt and the bruising?

[00:04:18] Speaker 00:
as opposed to making their own deduction about that?

[00:04:23] Speaker 04:
They did it when they relied on the location of the bruising.

[00:04:26] Speaker 04:
So they made a deduction based on the location of the bruising.

[00:04:30] Speaker 00:
They talked about the implausibility of the petitioner's testimony about this.

[00:04:35] Speaker 00:
They relied on that.

[00:04:36] Speaker 00:
But I guess what I'm saying is where did they rely on the release report for the causation element?

[00:04:45] Speaker 04:
in the location of the bruising, when they analyzed to decide whether the bruising could have been caused by swordplay or jumping off a hill, they look at the location of the bruising, which is only contained in the hearsay police report, because there was no testimony about the location of the bruising.

[00:05:00] Speaker 00:
And when they sit, when they went in... Was the location of the bruising disputed?

[00:05:05] Speaker 04:
I believe it was.

[00:05:06] Speaker 04:
And that it wasn't... That it was improper.

[00:05:09] Speaker 04:
And there's three different accounts even within the police report.

[00:05:12] Speaker 04:
One said that it was a small section of bruising.

[00:05:15] Speaker 04:
The other said it was up and down.

[00:05:16] Speaker 01:
The issue here, though, is whether there was abuse or not.

[00:05:20] Speaker 01:
And you're arguing elements that go to whether there was abuse or not.

[00:05:26] Speaker 01:
It's whether the conduct was going to be coming.

[00:05:28] Speaker 01:
That's correct.

[00:05:29] Speaker 01:
That's the issue that was before the board.

[00:05:31] Speaker 04:
That's correct.

[00:05:32] Speaker 04:
And so the board and this court applies the Bornekoff factors in deciding whether

[00:05:42] Speaker 04:
hearsay evidence could amount to substantial evidence.

[00:05:46] Speaker 04:
And if you look at the, and even in circumstances, so in the Bornikoff case, the individual was charged with a crime, was taken to jail, was pled guilty for a deferred sentence, and the court said that the evidence that relied on that he had engaged in this misconduct, despite that corroborating evidence that he had been charged and pled guilty, that he

[00:06:12] Speaker 04:
that was insufficient given the need to be able to question witnesses.

[00:06:20] Speaker 04:
And that's the whole point of excluding hearsay.

[00:06:22] Speaker 04:
And even under recognizing that hearsay is admissible, they found that when relying on a report, even corroborated by a criminal charge and a plea deal, that that's insufficient unless without something more than the hearsay evidence.

[00:06:39] Speaker 04:
And so we submit to hear that

[00:06:43] Speaker 04:
The only evidence outside of the hearsay police report is that he was arrested, that he admitted to spanking his son, that he was arrested and that he was charged, which is identical to the facts in Bornecoff and also in Cooper, where the individual was not, they were not prosecuted, but they again were arrested and jailed for 14 days and then the victim declined prosecution.

[00:07:11] Speaker 04:
It's similar to the facts here.

[00:07:13] Speaker 04:
And the court said that the hearsay report generated in the police investigation was insufficient to support the government's burden of proving the conduct on becoming by preponderant evidence.

[00:07:27] Speaker 04:
And here, as I mentioned, each of the five fact, five of the factors, the Bornikoff test unquestionably weigh against the admission of the use of the PPD report, the police report to the

[00:07:42] Speaker 04:
substantial evidence, the availability of people with firsthand knowledge to testify at the hearing, whether the statements of the out-of-court declarants were signed or in affidavit form, the agency's explanation for failing to obtain sworn or signed or sworn statements.

[00:07:56] Speaker 04:
The agency did not call the police officer, did not call the babysitter, did not call the nurse, did not the police report is unsigned, there are no affidavits, and the police and the agency did not offer an explanation for its failure to call these individuals.

[00:08:11] Speaker 04:
The seventh and eighth factors also unquestionably cut against the use of the police report to constitute substantial evidence in that Mr. Pope's testimony contradicts the report, in that he says they did not cause the bruising.

[00:08:26] Speaker 04:
And also the credibility of the declarant, which in this case, if there's the first level of hearsay, is the police officer, while there's nothing that indicates the police officer had a motive to lie,

[00:08:40] Speaker 04:
that the police reports themselves are, which are prepared in anticipation of litigation, are routinely found to be inadmissible hearsay, including under the federal rules 8038.

[00:08:52] Speaker 04:
Essentially, the only thing that, the evidence the judge had and the board had before it was the mission, the criminal charge, the plea deal to a no prosecution.

[00:09:09] Speaker 04:
and the admission that there was a spanking by the petitioner.

[00:09:14] Speaker 04:
And we think that under Boronikoff and Cooper, that this is insufficient, that this does not meet the standard of substantial evidence.

[00:09:22] Speaker 01:
For the second charge... There was also the lack of credibility of Mr. Post's testimony.

[00:09:28] Speaker 04:
So, at that point, we believe that the administrative judge should not make a credibility determination.

[00:09:34] Speaker 04:
And you can see that by comparing

[00:09:36] Speaker 04:
or demeanor-based credibility determination, excuse me.

[00:09:39] Speaker 00:
And you can see that by comparing his... Well, on page 822, the A.J.

[00:09:44] Speaker 00:
said, I find the appellant's alternate source explanations of Jacob's rusing implausible and not worthy of credit.

[00:09:50] Speaker 00:
So, I mean, that's evidence that he relied on that was not in the form of hearsay to reach this conclusion.

[00:09:58] Speaker 00:
I guess I'm still having trouble seeing, and I understand the point about the concern about hearsay, but I'm

[00:10:07] Speaker 00:
having some difficulty in seeing where they rely on hearsay for a disputed factual issue.

[00:10:16] Speaker 04:
The disputed factual issue as far as when he's analyzing, he says he believes Mr. Pope minimized the allegations.

[00:10:26] Speaker 04:
He's relying on his analysis of where the location of the bruising, the only evidence of the location of the bruising, and there weren't even, the images were not put into the record.

[00:10:36] Speaker 04:
was based on that police report, which contained itself three or four different accounts of where the bruising was.

[00:10:42] Speaker 04:
That's where the reliance on hearsay when the judge is making deductions.

[00:10:45] Speaker 04:
But the only thing he can make deductions based upon is his, it has to come through hearsay lens, which is that police report.

[00:10:55] Speaker 04:
As far as the second charge I just want to address quickly, that has a different hearsay problem.

[00:11:05] Speaker 04:
There the hearsay is a letter that a witness that actually attended and gave a lot of testimony saw, supposedly saw, that said that Mr. Polk was terminated.

[00:11:16] Speaker 04:
We think, so here, this is not a born-to-cough problem.

[00:11:20] Speaker 04:
This is just a lack of substantial evidence.

[00:11:23] Speaker 04:
In the record, there were a prior statement from this witness that he had

[00:11:31] Speaker 04:
The reasons for Mr. Pope's termination were these sort of outlandish things that he had flown to Iraq without orders as an Air Force commander, that he had a girlfriend that he'd seen, that he'd hired, and that, sorry, he wore his military uniform on base.

[00:11:52] Speaker 04:
And at the hearing, this witness testified solely that the reason that Mr. Pope was terminated was for failing to follow procedures

[00:12:01] Speaker 04:
And the only example we named was they allowed the guards to wear black undershirts as opposed to white undershirts under their uniforms.

[00:12:08] Speaker 04:
And so here our position is that this obvious contradiction that was in the record evidence undermines the credibility determination that the judge made.

[00:12:19] Speaker 04:
And I just want to make one more point that I've left.

[00:12:24] Speaker 04:
When we're talking about credibility determinations, as far as the first charge,

[00:12:27] Speaker 04:
The judge did not make a demeanor-based credibility determination.

[00:12:31] Speaker 04:
That is that he looked at the witness and said, the witness appears untrustworthy.

[00:12:40] Speaker 04:
With respect to the first charge, the judge, in a conclusion sentence, said, what I believe Your Honor read, that I find his account improbable, and I find that he minimizes his role in this.

[00:12:55] Speaker 04:
But that wasn't demeanor-based.

[00:12:56] Speaker 04:
With the second charge, he says... What does that matter?

[00:13:00] Speaker 04:
So there's more... So under the Lopez decision, the board gives greater weight to a demeanor-based determination.

[00:13:10] Speaker 00:
A demeanor-based determination... It's not as though the board set aside this finding and agreed with it.

[00:13:17] Speaker 04:
That's correct.

[00:13:18] Speaker 04:
I'm saying that the first charge is not entitled to the same deference.

[00:13:21] Speaker 04:
of a demeanor-based credibility determination.

[00:13:24] Speaker 04:
And the second charge, while it is a demeanor-based credibility determination, is contradicted by the prior inconsistent statement of the witness.

[00:13:32] Speaker 04:
And so I'll reserve my remaining time.

[00:13:34] Speaker 00:
Okay.

[00:13:34] Speaker 00:
Thanks.

[00:13:40] Speaker 00:
Ms.

[00:13:41] Speaker 00:
Echols.

[00:13:50] Speaker 02:
Good morning.

[00:13:50] Speaker 02:
May I please the court?

[00:13:52] Speaker 02:
The court should affirm the board's decision denying Mr. Pope's petition for review and affirming the administrative judge's initial decision sustaining his removal.

[00:14:00] Speaker 02:
The evidence established that Mr. Pope engaged in conduct unbecoming a security specialist when he beat his four-year-old son.

[00:14:05] Speaker 00:
What about the hearsay evidence?

[00:14:09] Speaker 00:
As you know from my opinion in Long, I have some concerns about the board's approach in this area.

[00:14:17] Speaker 00:
I mean, suppose we had here instead of

[00:14:21] Speaker 00:
admitted facts.

[00:14:22] Speaker 00:
Suppose that the issue on whether the petitioner had hit his son with a belt was disputed and that the board relied on the hearsay in the police report to find that he committed the act and that was the only evidence that relied on.

[00:14:41] Speaker 00:
Would that be sufficient?

[00:14:43] Speaker 02:
It depends on the appropriate value of that police report and it depends on how the administrative judge and

[00:14:50] Speaker 02:
flowing from that, the board engaged in the weighing of those factors.

[00:14:54] Speaker 02:
What does that mean?

[00:14:57] Speaker 00:
In my hypothetical, that's enough?

[00:15:00] Speaker 00:
The police report says that this conduct occurred and that that's the only evidence that the board relied on.

[00:15:07] Speaker 00:
They can find that somebody committed the act based on that?

[00:15:11] Speaker 02:
It may not be enough, Your Honor, depending on the nature of the report, but what we have here is more than just that.

[00:15:16] Speaker 00:
What do you mean the nature of the report?

[00:15:18] Speaker 02:
depending on whether or not the report was signed, depending on whether or not there's other corroborating evidence, that's just not the case here.

[00:15:27] Speaker 02:
What we have is the board saying, I mean, the board and the administrative judge saying, not only are we looking at this police report, which we understand has some factors that weigh against its probative value, but we find that ultimately enough factors weigh in favor of its probative value.

[00:15:44] Speaker 02:
But in addition to that,

[00:15:45] Speaker 02:
We have these undisputed facts, which Your Honor alluded to earlier or referenced earlier.

[00:15:51] Speaker 02:
The fact that Mr. Pope hit the child with the belt either Thursday or Friday due to the child's violent behavior at school, undisputed evidence that the nanny saw the bruising the following Monday and had not, prior to that point, ever seen any bruising on the child.

[00:16:07] Speaker 02:
The fact that the nanny reported the bruising to the child care facility and ultimately the authorities

[00:16:13] Speaker 02:
following her discovery of those bruises on Monday.

[00:16:15] Speaker 02:
It's undisputed by Mr. Pope's own testimony that he was arrested for aggravated child abuse and that he agreed to enter into the pre-trial intervention program because he thought essentially prosecution was inevitable.

[00:16:28] Speaker 03:
What is the evidence of the scope of the bruising on the boy's body?

[00:16:37] Speaker 02:
I believe Mr. Pope doesn't dispute where the bruising was on the child's body.

[00:16:42] Speaker 02:
The police report does note, as a result of its inclusion of the medical examination, that there was bruising from the child's back all the way

[00:16:52] Speaker 02:
you know, down his buttocks, down the backs of his hamstrings and to his shins.

[00:16:56] Speaker 03:
But to the extent that he says the entire police report is hearsay, I thought you were identifying either evidence or lack or admissions or something that showed at least one of the crucial facts independent of the crime report, of the police report.

[00:17:18] Speaker 02:
Yeah, sure.

[00:17:18] Speaker 02:
So taking away the

[00:17:21] Speaker 02:
identification of the locations on the body in the police report.

[00:17:25] Speaker 02:
Again, Mr. Pope acknowledges, and it's undisputed, that the child was bruised on the back of his body.

[00:17:30] Speaker 02:
Now, the extent of that bruising and how far it extended from the back down to the child's shins may be a question that is further illuminated by the police report.

[00:17:40] Speaker 02:
But he does not dispute.

[00:17:42] Speaker 03:
Or even the severity, both location severity, it seemed to matter here.

[00:17:47] Speaker 02:
Yes, Your Honor.

[00:17:47] Speaker 02:
But the fact of the matter was,

[00:17:50] Speaker 02:
Mr. Pope does agree that that bruising existed on Monday.

[00:17:54] Speaker 02:
And so he's saying that, well, in addition to those disputed, undisputed facts by Mr. Pope's own testimony and setting aside the police report, we also have the administrative.

[00:18:08] Speaker 00:
On page 819, the AJ says while the appellant has never contested that, you know, that Jacob had the bruises as reported.

[00:18:16] Speaker 00:
Is that true that he didn't contest that?

[00:18:19] Speaker 02:
I'm sorry, Your Honor.

[00:18:20] Speaker 02:
Can you repeat that?

[00:18:21] Speaker 00:
This is the first line of A-19.

[00:18:25] Speaker 00:
The A.J.

[00:18:26] Speaker 00:
says the appellant has never contested that Jacob had the bruises as reported.

[00:18:31] Speaker 00:
Is that contested or not contested?

[00:18:33] Speaker 02:
I believe that the administrative judge is correct.

[00:18:35] Speaker 02:
I've not seen where Mr. Pope has contested specifically the findings of the police report with respect to that breathing, except now in briefing before the Court,

[00:18:47] Speaker 02:
there is some allusion to, well, maybe there could have been more evidence as to the extent and nature of that bruising.

[00:18:54] Speaker 02:
But the fact of the matter is, at hearing and in pre-trial submissions, pre-hearing submissions, that the child had been bruised in the nature described was not disputed by Mr. Pope.

[00:19:07] Speaker 01:
He was disputing that whether or not he was a source of the bruising, correct?

[00:19:11] Speaker 02:
That is correct, Your Honor.

[00:19:12] Speaker 01:
He said that the bruising was a result of playing with friends and horsing around.

[00:19:18] Speaker 02:
That's exactly right, Your Honor.

[00:19:21] Speaker 02:
And as part of the administrative judge's credibility analysis that it goes through step by step, it takes up this idea, these post-hoc alternative theories for the source of the bruising provided by Mr. Pope at the hearing.

[00:19:37] Speaker 02:
And the administrative judge walks through each one of those alternative theories step by step and explains why it is as a

[00:19:45] Speaker 02:
logical matter based on Mr. Pope's testimony that it's implausible that either or any one of those three alternative theories makes sense.

[00:19:57] Speaker 02:
It just does not fly.

[00:19:59] Speaker 02:
I believe the judge said it exceeded the bounds of credibility.

[00:20:02] Speaker 02:
In addition to that credibility finding, the judge also makes a demeanor-based credibility determination.

[00:20:09] Speaker 02:
And that is with respect to this idea that Mr. Pope testifies at the hearing

[00:20:15] Speaker 02:
that he only hit the child two or three times with a belt.

[00:20:17] Speaker 02:
That was his testimony.

[00:20:19] Speaker 03:
The reason why the- I'm sorry, two or three times on this occasion?

[00:20:23] Speaker 02:
I believe that's correct, Your Honor.

[00:20:25] Speaker 02:
And the administrative judge, having heard his testimony and having lived with the case, made the determination that it just seemed like he was trying to downplay this.

[00:20:37] Speaker 02:
He was trying to minimize the severity by which he assaulted the child.

[00:20:41] Speaker 02:
And as this court recognized in purifoy,

[00:20:44] Speaker 02:
It doesn't have to be an explicit statement that the administrative judge is making a demeanor-based credibility finding.

[00:20:53] Speaker 02:
It can be enough that hearing testimony, implicit in hearing that testimony and witnessing the witness at the hearing, implicit in that is this assessment

[00:21:10] Speaker 02:
or analysis of the demeanor of the witness.

[00:21:13] Speaker 02:
And so a demeanor-based credibility determination need not be explicit for the court to recognize that that's the kind of determination that's being made with respect to a testifying witness's credibility.

[00:21:28] Speaker 03:
Can you point?

[00:21:29] Speaker 03:
Where did the AJA specifically make the remarks about demeanor that you're referring to?

[00:21:38] Speaker 02:
On A-22, in the last paragraph, after the judge addresses the alternate source explanations for Jacob's bruising, goes on to make a separate finding that reads, further, I find that the appellant's testimony that he struck Jacob two or three times with a small belt attempts to minimize what punishment actually occurred, the very punishment the appellant instructed Jacob not to tell anyone about.

[00:22:07] Speaker 00:
In that implicit in that.

[00:22:11] Speaker 02:
He doesn't explicitly say he's relying on demeanor there.

[00:22:14] Speaker 02:
But implicit in his assessment there, his analysis there, is the fact that he just did not believe him when he was testifying.

[00:22:23] Speaker 02:
And implicit in that, again, as the Court recognized in pure forth, is an assessment of the witness's demeanor.

[00:22:30] Speaker 02:
But even if the Court were to find that this were not or was not a demeanor-based

[00:22:37] Speaker 02:
determination, it is a credibility determination.

[00:22:41] Speaker 02:
It is part of the court's credibility analysis in which the court weighs all of the evidence.

[00:22:46] Speaker 02:
And so in that, there is still deference owed to the administrative judge in making that credibility analysis.

[00:22:54] Speaker 02:
And there is nothing on the record with equal weight to contradict those findings.

[00:23:02] Speaker 02:
Again, even if we take away the police report,

[00:23:07] Speaker 02:
which was properly admitted, even if you take that away, you're left with the fact that Mr. Pope offers no credible alternative explanation for how the child received this bruising.

[00:23:19] Speaker 02:
And the alternatives that he provides, he only provides as a matter of convenience when he's testifying.

[00:23:26] Speaker 02:
These were not represented in his pretrial submissions, or at least the platelet condition.

[00:23:32] Speaker 02:
was not and the alternate theories were inconsistent with the actual bruising that's found on the child.

[00:23:39] Speaker 03:
Can I ask you about a different topic?

[00:23:44] Speaker 03:
What's in footnote four on page three of the board's opinion in which the board rejects, I think two senses, the submission

[00:23:58] Speaker 03:
that Mr. Pope made of the then brand new Defense Department reaffirmation of his security clearance, notwithstanding pretty much hearing this entire story and evidence behind it.

[00:24:17] Speaker 03:
And the board said, first of all, you didn't comply with the regulation, and I'm frankly not sure why that's right.

[00:24:28] Speaker 03:
And second,

[00:24:29] Speaker 03:
the evidence is not material to the outcome of the appeal.

[00:24:36] Speaker 03:
So on the regulation, the board seems to say that if you're going to submit evidence like this, you have to move to do it before actually submitting the evidence.

[00:24:50] Speaker 03:
Tell me why the regulation says that.

[00:24:54] Speaker 03:
I don't think it does.

[00:24:55] Speaker 03:
No pleading other than the ones described in this paragraph, you know, the other stuff, will be accepted unless the party files a motion with and obtains leave from the clerk of the board.

[00:25:07] Speaker 03:
He did file a motion.

[00:25:09] Speaker 02:
I believe when Mr. Polk did it, he didn't seek leave of court to file the motion.

[00:25:12] Speaker 02:
He just filed the motion.

[00:25:14] Speaker 02:
And the regulation asked that there be a, that the petitioner or seek leave to do so before filing the motion.

[00:25:22] Speaker 03:
This doesn't say leave of the clerk to file the motion.

[00:25:30] Speaker 03:
It's a leave of the clerk, I would think, to have the evidence or the pleading be accepted.

[00:25:37] Speaker 02:
My understanding of that, Your Honor, would be, for example, if a party were to be out of time for a filing, for example,

[00:25:45] Speaker 02:
And instead of just going ahead and filing whatever the, let's say it was a response, instead of filing the response after the time has run to do so, you must first seek leave of the court to get permission to make that filing.

[00:26:00] Speaker 02:
And then you may make the filing.

[00:26:02] Speaker 03:
And my understanding is, I mean, why does that make any sense?

[00:26:05] Speaker 03:
He files a motion that says, and the second sentence says you actually have to justify the motion, right?

[00:26:11] Speaker 03:
So how do you get,

[00:26:14] Speaker 03:
How do you even give the clerk an intelligible basis for deciding whether to allow whatever it is without showing and arguing?

[00:26:24] Speaker 02:
I think that it could, seeking leave may preview what the motion may say without actually filing the motion to say,

[00:26:32] Speaker 03:
Here's a piece of evidence that's been developed that was not available during... Is there some board precedent that says this, at least to my mind, extremely peculiar idea of a two-step process like this is what's been understood to be required?

[00:26:49] Speaker 02:
I don't have any board precedent that I can refer Your Honor to, except to say that the regulation does say what it says.

[00:26:56] Speaker 03:
Right, but I don't think the regulation says what the board seemed to say it said.

[00:27:02] Speaker 03:
It says you have to file a motion before filing some additional pleading.

[00:27:09] Speaker 03:
He filed a motion.

[00:27:09] Speaker 03:
He said, here's my motion.

[00:27:11] Speaker 03:
There's a recent Defense Department adjudicatory authority command or something that says, we've looked at all this evidence.

[00:27:19] Speaker 03:
We think he can keep his security clearance, attaches and stuff.

[00:27:24] Speaker 03:
What in the world is wrong with that?

[00:27:27] Speaker 02:
Your Honor, I think that it just comes down to whether it's just a procedural issue.

[00:27:32] Speaker 02:
And that's the board's own interpretation of its procedure.

[00:27:36] Speaker 02:
But even if the board is wrong about that.

[00:27:38] Speaker 03:
Talk about why it's not material.

[00:27:41] Speaker 03:
On the conduct on becoming, which I assume would be kind of the nexus to the functioning of here, I guess it's the Navy, when the Air Force, actually it's not the Air Force, the central, the Department of Defense,

[00:27:57] Speaker 03:
central adjudicatory command or whatever it is, irresponsible for the Navy as well.

[00:28:03] Speaker 03:
And it's not precisely the same question, but why is that not a significant piece of evidence?

[00:28:10] Speaker 02:
I think precisely, Your Honor acknowledges that the board, I'm sorry, the central adjudication facility for the Air Force Division doesn't take up

[00:28:21] Speaker 02:
precisely the same question as the administrative judge did.

[00:28:24] Speaker 00:
Is the submission that he attempted to make in the record here?

[00:28:29] Speaker 02:
The motion itself?

[00:28:31] Speaker 00:
Well, the thing from the Defense Central adjudication facility.

[00:28:38] Speaker 02:
I'm not sure that it is, Your Honor.

[00:28:39] Speaker 03:
I would have to go back and look at the... The motion is at 570, and it attaches, is this an email or something?

[00:28:47] Speaker 03:
It attaches a message from

[00:28:52] Speaker 03:
the central adjudicatory facility that says you get to keep your clearance was favorably adjudicated for SCI.

[00:29:06] Speaker 03:
This is at 578, SCI eligibility on November 6, 2015 based on your response to statement of reasons.

[00:29:14] Speaker 03:
The statement of reasons is essentially the charging sheet which looks rather like

[00:29:19] Speaker 03:
the story on which this proceeding is based?

[00:29:26] Speaker 03:
And that's a 584 in the statement of business, right?

[00:29:32] Speaker 02:
Even if the determination that Mr. Pope sought to have admitted should have been admitted because there was no procedural defect,

[00:29:43] Speaker 02:
We're still left with the issue of materiality of it.

[00:29:45] Speaker 00:
And even if... Yeah, and that's the problem.

[00:29:47] Speaker 00:
Because what the board seems to be saying is that we'll rely on the hearsay in the police report about the incident, but we won't rely on the conclusion that was reached by the defense adjudication facility.

[00:30:03] Speaker 00:
It does seem a bit inconsistent, doesn't it?

[00:30:06] Speaker 02:
Well, the reasons are different.

[00:30:08] Speaker 02:
And here, the adjudication

[00:30:12] Speaker 02:
a facility did not, again, precisely take up the issue that was before the agency and before the board.

[00:30:18] Speaker 02:
And in addition to that, the adjudicate, the central adjudication facility did not have the same record.

[00:30:24] Speaker 00:
What issue did it take up?

[00:30:25] Speaker 00:
I mean, whether he should keep his security clearance, right?

[00:30:29] Speaker 02:
Ultimately, whether he should keep his security clearance, but it did not address specifically whether or not he had the temperament to exercise,

[00:30:39] Speaker 02:
deadly force as he would be required to do in this specific job.

[00:30:42] Speaker 00:
That's not part of the security clearance?

[00:30:44] Speaker 02:
It's related, Your Honor, but it's not squarely the same question.

[00:30:47] Speaker 00:
I mean, surely that's part of the security clearance, is that somebody has the temperament to exercise judgment, right?

[00:30:52] Speaker 02:
I believe that it would be, but again, the board and the, this court, the board and the administrative judge had a different record.

[00:31:00] Speaker 02:
They did not have the benefit of hearing Mr. Pope on the stand minimize what he'd done.

[00:31:06] Speaker 00:
Neither did the police report.

[00:31:08] Speaker 02:
But the administrative judge, Your Honor, did not rely exclusively on that police report.

[00:31:12] Speaker 02:
It relied in large part on Mr. Pope's own undisputed testimony, as well as this determination that he appeared to be minimizing what he'd done to the child.

[00:31:21] Speaker 02:
And separate and apart from that, with respect to the lack of candor charge, there's clearly a demeanor-based credibility determination.

[00:31:28] Speaker 02:
And that's set out explicitly in the administrative judge's decision, where the judge is comparing the testimony of the employee

[00:31:37] Speaker 02:
with that of Mr. Pope, and the central adjudication facility did not have the benefit of any of that testimony when making its decision.

[00:31:46] Speaker 00:
Immediately did the police report people have them?

[00:31:51] Speaker 02:
That's correct, Your Honor.

[00:31:52] Speaker 02:
But again, that was not the only piece of evidence considered by the judge or the board.

[00:31:55] Speaker 00:
No, but it's just a question of whether they should have considered this evidence from the security clearance or not.

[00:32:02] Speaker 02:
Even we believe, as the administrative judge sets out in its opinion, as the board sets out in this decision, that the reasons for considering that police report were sound and that there were enough factors that weighed in favor of the appropriate value of that report.

[00:32:16] Speaker 02:
But again, even setting aside that report, there is substantial evidence to support the administrative judge and board's decision sustaining the charge of conduct on becoming.

[00:32:27] Speaker 01:
If the court has no questions.

[00:32:28] Speaker 01:
I have a question.

[00:32:29] Speaker 01:
So the letter that he submitted

[00:32:32] Speaker 01:
to show that he was eligible for security clearance.

[00:32:36] Speaker 01:
Was that untimely?

[00:32:38] Speaker 01:
I'm sorry.

[00:32:39] Speaker 01:
Was that an untimely file?

[00:32:41] Speaker 01:
The letter?

[00:32:44] Speaker 01:
A letter that he submitted from the Air Force stating that he was now eligible for security clearance.

[00:32:50] Speaker 02:
Was it untimely?

[00:32:51] Speaker 01:
It was... Is that what he sought the motion to file?

[00:32:55] Speaker 02:
Yes, Your Honor.

[00:32:55] Speaker 02:
Well, he sought the motion to file the... The motion sought to have the court consider

[00:33:01] Speaker 02:
the central adjudication facility's determination that he could continue with his... And was that filing out of time?

[00:33:06] Speaker 01:
Was it too late to do that?

[00:33:08] Speaker 01:
Is that why he filed a motion?

[00:33:10] Speaker 01:
Was it for leave?

[00:33:11] Speaker 02:
He essentially filed or should have filed a motion for leave, but he... He filed it when he did because that's when he got the information, right?

[00:33:18] Speaker 02:
That's correct, Your Honor, and it was after the evidence had closed, the hearing had concluded.

[00:33:23] Speaker 01:
But it was out of time, so he had to file a motion for leave to, for permission to file it.

[00:33:27] Speaker 02:
That's correct, Your Honor.

[00:33:30] Speaker 00:
So you're not suggesting that we can sustain the board because it had substantial evidence if it improperly excluded other evidence, right?

[00:33:40] Speaker 02:
If the court were to find that that material was, I mean, I'm sorry, if the court were to find that the central adjudication facility's determination was material as to the question of whether or not he, either of those charges should be sustained, then

[00:33:56] Speaker 02:
and that the court improperly excluded that evidence, then it ought to be remanded.

[00:34:01] Speaker 02:
However, that determination is not material.

[00:34:06] Speaker 02:
And separate and apart from that, the record still stands that the administrative judge, the board, and this Court have a far more complete and thorough view of what happened in both of these circumstances than did the central adjudication facility.

[00:34:22] Speaker 01:
Kennedy But there was another circumstance, wasn't there, where he lied on his employment

[00:34:26] Speaker 02:
That's correct, Your Honor.

[00:34:27] Speaker 02:
On charge two, which was the lack of candor charge, Mr. Pope was charged with not having disclosed that he was employed with U.S.

[00:34:36] Speaker 02:
Protect, which was a defense contractor with whom, with which he worked for some period of time in the order of months.

[00:34:43] Speaker 02:
And in addition to not disclosing that he held that employment, he also purposely omitted the fact that he was terminated from that employment.

[00:34:52] Speaker 02:
And he didn't just do so on one occasion.

[00:34:54] Speaker 02:
He did so on three separate occasions where it was clear and explicit that in order to provide an accurate and complete response, as he was obligated to do, that he must provide without any breaks all of his employment and the reason for separation.

[00:35:07] Speaker 01:
Are those incidents related to where he was using his girlfriend as his personal assistant?

[00:35:12] Speaker 02:
Yes, Your Honor.

[00:35:13] Speaker 02:
That is rolled into the reasons for his termination from U.S.

[00:35:18] Speaker 02:
Protect.

[00:35:18] Speaker 02:
And to go to the point that Mr. Jarrett made,

[00:35:21] Speaker 02:
whether or not there's inconsistency in the record with respect to the reasons for that termination.

[00:35:25] Speaker 02:
The through line is that he was terminated.

[00:35:30] Speaker 00:
Yeah, but was there a finding by the decision maker here or by the board that he would have been terminated based on this omission in the form standing alone?

[00:35:44] Speaker 02:
There's no explicit determination by the board or the administrative judge or the deciding official.

[00:35:49] Speaker 02:
that one charge alone would result in his termination.

[00:35:53] Speaker 02:
But what we see in the deciding official's decision is that the deciding official provides a complete explanation of the nexus for each one of those charges.

[00:36:04] Speaker 00:
Yeah, but under these circumstances, if we conclude that one charge had to be set aside or required a further hearing, you couldn't sustain it on the other charge, right?

[00:36:17] Speaker 02:
I, respectfully, Your Honor, I disagree.

[00:36:18] Speaker 02:
I think under LeChance, the Court, there's a presumption created when the most egregious of the charges remains and is sustained.

[00:36:27] Speaker 02:
And here, we have two charges of equal weight, both warranting dismissal in the first instance.

[00:36:32] Speaker 02:
And so even though one of those charges is dismissed or is not sustained, we're still left with another pretty serious charge.

[00:36:40] Speaker 02:
Both of these charges carry equal serious weight in our egregious offenses.

[00:36:46] Speaker 02:
that relate to Mr. Pope's ability to do his job.

[00:36:50] Speaker 02:
And so even if the court were not to sustain one of those, the remaining charge still warrants the penalty of dismissal.

[00:36:57] Speaker 00:
Even without a finding by the board that that's the case?

[00:37:01] Speaker 00:
Even without a specific finding, so long as there's no... What case says that we can do that, that it's up to us to make a determination as to whether one is sufficient?

[00:37:10] Speaker 02:
There's no case that I'm aware of, Your Honor, that says that it's up to the court to make a determination as to whether or not it's sufficient.

[00:37:16] Speaker 02:
But LeChance stands for the proposition that where there are combined charges, and one of those charges, the most egregious of those is sustained, then there is a presumption created that the agency would have gone through with the same penalty as it did on the combined charges, unless there is evidence to the contrary.

[00:37:35] Speaker 02:
And here, we don't have any of that.

[00:37:37] Speaker 02:
And certainly, it's still left to the agency's discretion, and the agency would still move forward with his removal.

[00:37:45] Speaker 02:
Thank you.

[00:38:01] Speaker 04:
So with my remaining time, I'd just like to address the evidence that was excluded of the security clearance determination.

[00:38:11] Speaker 04:
And it's argued that it is material.

[00:38:14] Speaker 04:
And if you look in the testimony of the deciding official, the deciding official considers, when questioned by the judge, the possibility that Mr. Pope would end up losing his clearance and saying, I could work with him on the lack of candor charge, however,

[00:38:31] Speaker 04:
it's likely that he would lose his clearance.

[00:38:34] Speaker 04:
And so that, I think even though it's a separate body.

[00:38:38] Speaker 03:
Can I just ask, the word material is playing, it seems to me, two roles here, and I want to try to understand this.

[00:38:46] Speaker 03:
The board, in its footnote, said he didn't follow the regulation.

[00:38:52] Speaker 03:
I want to put that aside, I think that's probably wrong.

[00:38:55] Speaker 03:
Then it said, it didn't say, and the evidence is not new and material evidence under some regulation, it said, this has no material effect on the outcome, which sounds like the board

[00:39:10] Speaker 03:
looked at the evidence, considered it, and decided even if we now admit it and consider it, it wouldn't change our determination.

[00:39:19] Speaker 03:
If you interpreted it that way, what would be problematic about it?

[00:39:28] Speaker 04:
I believe that it was problematic because there's not a discussion of the evidence and that there was no consideration of the determination.

[00:39:39] Speaker 03:
And I don't think that that essentially I don't think that footnote Addresses that it was a reason determination that it was immaterial And I don't think they're substantial in in in the motion that you submitted I guess at five Starting at 573 you have appendix a which has I guess this message that says your clearance was favorably adjudicated for security clearance eligibility and

[00:40:05] Speaker 03:
based on your response to statement of reasons.

[00:40:08] Speaker 03:
We don't have a response, right?

[00:40:11] Speaker 04:
No, I don't believe so.

[00:40:12] Speaker 03:
And do you know, was there a live hearing that's part of that security clearance process, or is this all paper, or what?

[00:40:23] Speaker 04:
It predated me.

[00:40:24] Speaker 04:
My understanding is that it's normally on papers.

[00:40:27] Speaker 04:
But I think that that's important here, and that there was not a more well-developed record

[00:40:34] Speaker 04:
before the security, before the security clearance adjudicators.

[00:40:39] Speaker 04:
And that, the same evidence that Mr. Pope was charged and pled guilty, or accepted no prosecution, and the fact of the police report, I believe was before the, before the adjudicators, excuse me.

[00:40:54] Speaker 04:
The issue is, just saying that he minimized, there was no great elusive, there's no credibility determination

[00:41:04] Speaker 04:
He just denied the fact that he caused the bruising.

[00:41:07] Speaker 04:
And I think that there isn't any, there's no greater evidence in the record from the judge who just looked at the police report and the facts that he had admitted to the spanking and charged and convicted than was before the DOD GAF.

[00:41:29] Speaker 00:
Could you submit to us, please, a copy of the response that was referred to?

[00:41:37] Speaker 00:
Yes.

[00:41:37] Speaker 00:
Without argument, just submit this response.

[00:41:40] Speaker 04:
I understand.

[00:41:42] Speaker 04:
And if there's no further questions.

[00:41:44] Speaker 00:
Okay.

[00:41:46] Speaker 00:
Thank you.

[00:41:46] Speaker 00:
Thank you.

[00:41:46] Speaker 00:
Thank you both counsel.

[00:41:47] Speaker 00:
The case is submitted.

[00:41:48] Speaker 00:
That concludes our session for this morning.

[00:41:55] Speaker ?:
All rise.

[00:41:56] Speaker ?:
The honorable court is adjourned until tomorrow morning at 10 a.m.