[00:00:24] Speaker 03:
Next case is Fernando Solis versus the Department of Homeland Security, 2016-1726.

[00:00:31] Speaker 03:
Mr. Gibbons.

[00:00:33] Speaker 03:
Good morning.

[00:00:34] Speaker 02:
Good morning, Judge.

[00:00:35] Speaker 02:
May it please the Court?

[00:00:37] Speaker 02:
My name is Darren Gibbons.

[00:00:38] Speaker 02:
I represent the petitioner, Mr. Fernando Solis.

[00:00:42] Speaker 02:
There are two issues the petitioner sees in this appeal, judges.

[00:00:47] Speaker 02:
The first is the breadth of the finding made by the government.

[00:00:51] Speaker 02:
They want you to believe that my client was found

[00:00:54] Speaker 02:
Non-selected for two positions.

[00:00:56] Speaker 02:
The breadth of the finding was much broader than that.

[00:00:59] Speaker 01:
Is your client under consideration for a third position at this point?

[00:01:04] Speaker 02:
They never responded to that application.

[00:01:05] Speaker 02:
He applied for a position that was not law enforcement.

[00:01:08] Speaker 02:
He testified relating to that position and they never... There's been no communication?

[00:01:13] Speaker 02:
None.

[00:01:13] Speaker 02:
They didn't tell him he was qualified, not qualified.

[00:01:16] Speaker 02:
They didn't respond to it at all.

[00:01:18] Speaker 02:
And then he subsequently reapplied for the same positions of issue in this case.

[00:01:23] Speaker 02:
The other issue is a due process issue.

[00:01:26] Speaker 02:
He was given a due process.

[00:01:28] Speaker 02:
And the regulations provide clearly that he shouldn't.

[00:01:32] Speaker 02:
And I'll address those in detail.

[00:01:34] Speaker 04:
Can you clarify something for me?

[00:01:35] Speaker 04:
Following up on Judge Rainer's question, I thought the board decision made reference to

[00:01:41] Speaker 04:
a tentative offer for some third position?

[00:01:44] Speaker 02:
They're referring again to the same positions at issue in this case, the Border Patrol agent and the Customs and Border Patrol officer.

[00:01:51] Speaker 02:
He applied for three positions.

[00:01:54] Speaker 02:
Originally, that third position wasn't addressed below.

[00:01:58] Speaker 02:
He then reapplied.

[00:02:00] Speaker 04:
So just can you explain to me what was the board referring to when they said something about a third tentative offer that's different from the two tentative offers that were withdrawn?

[00:02:12] Speaker 04:
Yes.

[00:02:13] Speaker 04:
That's the subject of this appeal.

[00:02:14] Speaker 02:
The board is specifically referring to this same Border Patrol agent, Customs and Border Patrol officer.

[00:02:20] Speaker 02:
They re-advertise these every year.

[00:02:22] Speaker 02:
So if you wish to, you can reapply over and over again for the same positions, which my client

[00:02:28] Speaker 02:
took advantage of that.

[00:02:29] Speaker 02:
The problem is the polygraph, they find a three-year, without explanation, they say once you fail the polygraph, even if you pass all other requirements, you're still not going to get a job.

[00:02:44] Speaker 04:
But just to clarify, he did in fact receive

[00:02:49] Speaker 04:
yet another contingent offer for either a poor patrol agent position or a CBPO?

[00:02:55] Speaker 02:
He did, but that processing at the time we had this hearing had not concluded.

[00:03:00] Speaker 04:
And what's the status of that?

[00:03:03] Speaker 02:
They never contacted him.

[00:03:04] Speaker 02:
Our understanding is that because the polygraph was still less than three years old, he was not.

[00:03:11] Speaker 04:
So after receiving the contingent offer,

[00:03:15] Speaker 04:
there's been radio silence.

[00:03:17] Speaker 04:
Correct.

[00:03:20] Speaker 03:
Why isn't this simply a case of non-selection, which we can't review?

[00:03:27] Speaker 02:
Well, the record's clear, Judge.

[00:03:28] Speaker 02:
If you look at the testimony of the key witnesses, they don't describe it that it's a non-selection just with respect to two positions.

[00:03:39] Speaker 02:
They say the opposite of that.

[00:03:41] Speaker 02:
Not only in the letter, which is at issue at page 21,

[00:03:45] Speaker 02:
But in Brown's declaration at pages 71 and 72, he refers to it as a suitability determination, very broad.

[00:03:53] Speaker 03:
But it was based upon criteria following an objection, and one of the criteria is non-suitability.

[00:04:01] Speaker 02:
We dispute that it was an objection.

[00:04:03] Speaker 02:
It was a suitability finding, and they were clear in both their letter and their letter to him, which the board seems to have an amnesia.

[00:04:11] Speaker 02:
Because in their remand order, if you read their remand order,

[00:04:16] Speaker 02:
you would believe that they at least inferred at that point that my client had made a case because they referred... To be fair to the board, let's not suggest they had amnesia.

[00:04:26] Speaker 04:
I think the point the board was trying to make was the letter was internally inconsistent.

[00:04:33] Speaker 04:
It said things that suggested that this was a broad suitability determination by CBP and yet there were other statements that maybe made it look

[00:04:45] Speaker 04:
like it was a specific cancellation of an eligible or a non-selection for this particular position.

[00:04:53] Speaker 04:
So it wanted the A.J.

[00:04:55] Speaker 04:
to do a hearing on that.

[00:04:57] Speaker 04:
And so the A.J.

[00:04:58] Speaker 04:
brought in all of these witnesses.

[00:05:01] Speaker 04:
And then the A.J.

[00:05:02] Speaker 04:
drew the conclusion that based on all the testimony from those witnesses, it supported one reading of those internally inconsistent documents

[00:05:13] Speaker 04:
which channeled towards the conclusion that this was just a non-selection for the border patrol agent position and for the CBPO position.

[00:05:25] Speaker 02:
That is true, but the judge's reading, we don't believe, is a fair reading.

[00:05:29] Speaker 02:
If you look at the testimony of these individuals, specifically when the judge asks a question at page 735, you'll see that the judge asks, okay, so let's say you have done an entire suitability adjudication

[00:05:42] Speaker 02:
this is the memo you would send for that, answer right, we would send this memo.

[00:05:48] Speaker 02:
That memo is a suitability finding.

[00:05:50] Speaker 02:
They're trying to say that it's not now because I filed this claim.

[00:05:55] Speaker 04:
Isn't there a regulation that says that agencies can do a non-selection

[00:06:03] Speaker 04:
Yes.

[00:06:03] Speaker 04:
Based on a suitability determination?

[00:06:06] Speaker 02:
The law was changed in 2008.

[00:06:08] Speaker 04:
Right.

[00:06:08] Speaker 04:
And in our view, the... So now that we have that regulation, and I don't see you challenging the validity of that regulation in this appeal, what we're trying to figure out is did they permissibly apply that regulation here when one division, the Personnel Security Division, says there's a suitability problem here and then

[00:06:33] Speaker 04:
and kicks that determination over to the human resources and the human resources department is the actual department that makes the final choice of whether to go through with hiring someone.

[00:06:45] Speaker 04:
And so that seemed to be the way I was reading the various witness testimony that perhaps the personnel security division is making a request

[00:06:57] Speaker 04:
that you should find this person unsuitable, but ultimately it's up to HR to make the final conclusion on whether to withdraw the contingent offer for this particular position.

[00:07:10] Speaker 02:
We don't agree with that position.

[00:07:12] Speaker 02:
We don't believe that HR was making the decision.

[00:07:14] Speaker 02:
We believe the decision was made by the personnel security division.

[00:07:17] Speaker 02:
In fact, Mr. Staples testifies.

[00:07:19] Speaker 02:
Once he failed the polygraph, it's a fait accompli.

[00:07:23] Speaker 02:
You fail the polygraph, you are not eligible.

[00:07:27] Speaker 02:
You can use the word suitability, you can use the word disqualified, you can place any label you want on it.

[00:07:32] Speaker 02:
But at that point in time, once you fail the polygraph, they found very broadly he was unsuitable for all employment.

[00:07:39] Speaker 01:
What's the difference, what's the substantive difference like in terms of duties between those that would be performed as a Border Patrol agent and a Customs and Border Protection agent?

[00:07:52] Speaker 02:
I think they're both law enforcement positions, but that was not an issue below.

[00:07:57] Speaker 02:
But is there any difference?

[00:08:01] Speaker 02:
Other than how they define the law enforcement specific duties, no.

[00:08:05] Speaker 02:
To our knowledge, no.

[00:08:07] Speaker 02:
But my client was a border patrol agent, and he served and was promoted twice in that position.

[00:08:13] Speaker 02:
And as the record shows, he had passed a background check and suitability to at least initial determination previously.

[00:08:21] Speaker 04:
What is your understanding of what an unsuitability termination does?

[00:08:27] Speaker 04:
Does it basically bar an agency from hiring an individual for any and all positions?

[00:08:36] Speaker 04:
Or is it that broad?

[00:08:42] Speaker 04:
Or is it for some subset of possible positions that could be available from that agency?

[00:08:50] Speaker 02:
Well, I speak from personal experience here and not so much in the record because I am a former JAG and government counsel.

[00:08:57] Speaker 02:
And our position is that once the personnel security office goes through the criteria and the polygraph exam is a question and answer session, as the record indicates, they average almost six hours, five hours and 53 minutes.

[00:09:14] Speaker 02:
During that questioning, they're trying to determine, is this person suitable?

[00:09:17] Speaker 02:
Are they trustworthy?

[00:09:18] Speaker 02:
Are they honest?

[00:09:19] Speaker 02:
And that's the finding that they made, that my client wasn't honest.

[00:09:22] Speaker 02:
We're simply saying, there should be procedural due process.

[00:09:27] Speaker 02:
Let me analogize.

[00:09:28] Speaker 04:
I'm sorry.

[00:09:29] Speaker 04:
Let me get a little more tighter with my question.

[00:09:33] Speaker 04:
OK.

[00:09:33] Speaker 04:
We're trying to figure out here whether this was an unsuitability determination which affords appeal rights.

[00:09:40] Speaker 04:
or whether this was merely a non-selection for a particular position.

[00:09:44] Speaker 04:
Understood.

[00:09:46] Speaker 04:
If it's the latter category, then there are no appeal rights.

[00:09:49] Speaker 02:
Understood.

[00:09:49] Speaker 02:
I agree.

[00:09:49] Speaker 04:
So now, if non-selection for a particular position, I understand what that means.

[00:09:56] Speaker 04:
That means for this particular position, you've been blocked from getting hired for it.

[00:10:01] Speaker 04:
And now I'm trying to understand, okay, what's the scale and scope of an unsuitability determination?

[00:10:06] Speaker 04:
Is it completely blocking an individual from any position that could be available from that entire agency?

[00:10:15] Speaker 02:
I believe it is, and I believe that's what they said, and that was their intent, and that they later, in realizing, they later realized that they were too broad in that explanation.

[00:10:25] Speaker 02:
But their own testimony, again, in their own sworn statements, in their own testimony,

[00:10:30] Speaker 02:
The only explanation you were given is a template, which there isn't much explanation to that other than to say it's a template, and then to say that there was, they actually testified there is another process, but when I asked what is that process, they couldn't describe it, because this is the process.

[00:10:47] Speaker 02:
And because they didn't follow their own regulation, we would submit, and I'll reserve three minutes for rebuttal and I'll close in a minute and a half, but we would submit, you should look at these cases like you do security clearance cases.

[00:10:58] Speaker 02:
We always require if someone loses a security clearance, they get procedural due process.

[00:11:06] Speaker 02:
They get procedural due process to any suitability finding.

[00:11:09] Speaker 02:
Let's say you have a background check and you have criminal record, you have a bankruptcy.

[00:11:14] Speaker 02:
That personnel security office will say to you, here's the negative derogatory information we found.

[00:11:19] Speaker 02:
Would you like to respond?

[00:11:21] Speaker 02:
But they're exempting polygraphs from that.

[00:11:23] Speaker 02:
They're saying this is unreviewable.

[00:11:25] Speaker 02:
We're going to question you for six hours.

[00:11:26] Speaker 02:
We're going to find 50% of you are not qualified based on it.

[00:11:31] Speaker 02:
But you don't get to respond.

[00:11:34] Speaker 02:
You just must take our word for it.

[00:11:36] Speaker 02:
And there's no written letter.

[00:11:38] Speaker 02:
We're just saying,

[00:11:40] Speaker 02:
If you're going to do it with respect to everything else, if they have a criminal record, if they have a bankruptcy, if they have a bad history, you should say to them, we questioned you, we found you, we're not fully forthright in the following area, would you like to respond?

[00:11:59] Speaker 02:
And they didn't do that.

[00:12:00] Speaker 02:
And my problem having practiced in this area for my entire career is that it's not fundamentally fair to have no process in the case of a polygraph.

[00:12:12] Speaker 02:
But we submit that it was a suitability.

[00:12:15] Speaker 02:
But in the alternative, if it's not, you have procedural and substantive process arguments that I've made.

[00:12:21] Speaker 01:
Does the result of this polygraph test is going to endure for three years?

[00:12:25] Speaker 02:
Yes.

[00:12:26] Speaker 01:
So any position he applies for, let's say he wants to be Assistant Secretary for CBP or Homeland Security, this polygraph test would pop up?

[00:12:37] Speaker 02:
Yes.

[00:12:39] Speaker 02:
According to the record, yes.

[00:12:42] Speaker 01:
So this is why I was asking you about the differences in the duties, and that's the use of a single result to decide different positions.

[00:12:53] Speaker 01:
Is there a difference with the law enforcement communications agent between that position and the other two?

[00:13:00] Speaker 02:
Yes, because the communications agent wasn't a law enforcement position.

[00:13:06] Speaker 02:
But Brian Staples testified that this finding applied to all positions, regardless if it was law enforcement or not.

[00:13:12] Speaker 02:
And we acknowledge law enforcement positions.

[00:13:14] Speaker 02:
You have a good reason to give a polygraph.

[00:13:16] Speaker 02:
We're not disputing that.

[00:13:17] Speaker 02:
We're simply saying if you're going to give every applicant that's otherwise qualified a polygraph, please give them an opportunity, if you find in six hours of questioning that they've said something that you believe is wrong or inaccurate, to respond to that.

[00:13:30] Speaker 02:
Thank you and I'll reserve two minutes.

[00:13:32] Speaker 03:
Thank you, Mr. Givens.

[00:13:34] Speaker 03:
Mr. Garger for the board.

[00:13:39] Speaker 05:
May it please the court.

[00:13:41] Speaker 05:
First and foremost, there's a clarification that needs to be made.

[00:13:44] Speaker 05:
A suitability determination is not a suitability action.

[00:13:49] Speaker 05:
There was a suitability determination here.

[00:13:51] Speaker 05:
The determination was that Mr. Solis was unsuitable.

[00:13:56] Speaker 01:
What's the difference with respect to continued employment?

[00:14:04] Speaker 05:
There's important differences between a suitability determination and a suitability action.

[00:14:09] Speaker 05:
So suitability determination typically in a position that's being applied for that's subject to investigation.

[00:14:16] Speaker 05:
the investigator at the end of collecting all the information from the investigation makes a determination.

[00:14:22] Speaker 05:
Is this candidate suitable for employment or are they unsuitable for employment?

[00:14:28] Speaker 05:
If the answer is no, it goes on to the selecting official, this information, unsuitable.

[00:14:32] Speaker 05:
So the selecting official has two options.

[00:14:35] Speaker 05:
They can object to the candidate, actually three options.

[00:14:40] Speaker 05:
They can object to the candidate and remove that candidate from the certificate.

[00:14:46] Speaker 05:
they can process a suitability action, which could mean debarment for three years, meaning if they reapply any time in those three years, they're not going to be placed on... You call that a suitability action?

[00:14:58] Speaker 05:
That would be a suitability action, yes.

[00:14:59] Speaker 01:
So if you have a suitability determination that says in an official communication, internal communication of the agency, that says disbarred for three years, are you saying that the difference in the word determination in action is

[00:15:15] Speaker 01:
really that drastic?

[00:15:18] Speaker 05:
They're referring to two different things, a suitability determination.

[00:15:22] Speaker 01:
What's the difference though?

[00:15:23] Speaker 01:
If you're barred from employment, all future employment with the federal agency for three years under a suitability determination,

[00:15:32] Speaker 01:
or you're barred for three years for federal employment under a suitability action, what's the difference?

[00:15:40] Speaker 05:
There's significant differences.

[00:15:42] Speaker 05:
Suitability determination, if that information leads to an objection to an eligible, as it did here,

[00:15:49] Speaker 05:
that candidate can reapply.

[00:15:51] Speaker 05:
And in fact, Mr. Solis concedes he reapplied.

[00:15:54] Speaker 05:
Not only does he concede that he reapplied, he concedes that he actually received a tentative offer.

[00:15:59] Speaker 05:
That would not have happened if he was debarred.

[00:16:01] Speaker 01:
You see, here's the problem that I'm having.

[00:16:04] Speaker 01:
He applied for two different positions, albeit it appears to be the same duties and, you know, law enforcement officer.

[00:16:13] Speaker 01:
And under one determination or under one polygraph, he was found to be not suitable for this one, or not selected, either one.

[00:16:24] Speaker 01:
And then, using the same polygraph, the same thing for this position.

[00:16:28] Speaker 01:
It seems to me that whatever he applies for within the agency for the next three years, he's not going to get the job, correct?

[00:16:36] Speaker 01:
Or does he have a real prospect to be employed as a law enforcement communications agent?

[00:16:45] Speaker 05:
The only information about that position, which is basically dispatch,

[00:16:49] Speaker 05:
is from Mr. Solis' testimony, saying that he applied for that.

[00:16:53] Speaker 05:
But that's not a law enforcement position.

[00:16:54] Speaker 01:
You don't have any record of that application?

[00:16:57] Speaker 05:
There's not much in this record at all except for his testimony, because that's not what his claim is about.

[00:17:02] Speaker 05:
It's not a law enforcement position, so the polygraph has nothing to do with that.

[00:17:06] Speaker 05:
The polygraph is not a requirement of that position.

[00:17:09] Speaker 05:
Again, if he was debarred for three years, that would apply to all agency positions.

[00:17:13] Speaker 01:
Why wouldn't you tell him that then?

[00:17:15] Speaker 01:
Why would you inform him?

[00:17:17] Speaker 01:
Not you personally.

[00:17:18] Speaker 05:
Right.

[00:17:18] Speaker 05:
I'm representing the MSPB, to be clear.

[00:17:21] Speaker 05:
But why was he not informed?

[00:17:22] Speaker 05:
I don't know.

[00:17:23] Speaker 05:
There's not much in the record at all about that because he's not bringing a claim about that position.

[00:17:29] Speaker 05:
To get back to this suitability determination, there's three options because the third option is

[00:17:36] Speaker 05:
based on an unsuitability conclusion of an investigation, there can be an objection followed by a suitability action.

[00:17:45] Speaker 05:
There are two different things, and in some cases, an agency has to take a suitability action.

[00:17:50] Speaker 05:
If there was fraud in the examination process, for example, if that's the conclusion of the investigation, then that applicant will not only be found to be unsuitable, but there will be unsuitable action taken in a referral to OPM.

[00:18:04] Speaker 04:
What does that mean, fraud in the examination?

[00:18:07] Speaker 05:
It basically means if they lied about something in their application.

[00:18:11] Speaker 05:
For example, there's a question about criminal... About cheated?

[00:18:14] Speaker 03:
Cheated.

[00:18:15] Speaker 05:
Cheated on the examination.

[00:18:17] Speaker 05:
Fraud by the applicant.

[00:18:19] Speaker 05:
By the applicant, which isn't what happened here.

[00:18:22] Speaker 04:
And just so I understand, you're saying for non-law enforcement officer positions, the polygraph test isn't a required element and so therefore there wouldn't be some suitability determination memo from

[00:18:39] Speaker 04:
the personnel security division to HR for a contingent offer to an applicant for a non-law enforcement officer position?

[00:18:50] Speaker 05:
That position may still be subject to investigation, but the polygraph examination did not apply to that position.

[00:18:59] Speaker 05:
And I think that's why Mr. Solis didn't include that in his claims.

[00:19:03] Speaker 05:
And there's very little in the record about his application for that position.

[00:19:07] Speaker 05:
It comes from his own testimony.

[00:19:09] Speaker 05:
So we don't really know what happened in that application.

[00:19:13] Speaker 05:
We know about these two positions and there's the key evidence here.

[00:19:19] Speaker 01:
Let's say he had applied and this application is pending.

[00:19:22] Speaker 01:
Are you telling us that the polygraph examination or the results of the polygraph examination would not have an influence here on this position?

[00:19:31] Speaker 05:
On the non-law enforcement?

[00:19:33] Speaker 05:
Yes.

[00:19:33] Speaker 05:
The polygraph is for the law enforcement positions.

[00:19:36] Speaker 05:
So if he didn't receive the position, that was not the reason why.

[00:19:40] Speaker 05:
And that's why the objections here were taken to the two law enforcement positions he applied for, because the polygraph applies directly to those.

[00:19:50] Speaker 05:
The key testimony here is really from Ms.

[00:19:53] Speaker 05:
Roletter.

[00:19:54] Speaker 05:
The other witnesses are all dealing with the investigation.

[00:19:57] Speaker 05:
And again, the determination is this candidate suitable or unsuitable.

[00:20:01] Speaker 05:
But Ms.

[00:20:01] Speaker 05:
Rowlater is the key witness because she's actually in HR.

[00:20:05] Speaker 05:
And her testimony is, once she received this information, she processed an objection, not a suitability action, an objection.

[00:20:12] Speaker 05:
And that's in the appendix at 742 to 43.

[00:20:17] Speaker 05:
And her testimony is undisputed.

[00:20:20] Speaker 05:
So even though the petitioner raises some issues about credibility findings and whether the administrative judge did that correctly, there's no other witness disputes Ms.

[00:20:30] Speaker 05:
Rilletter's testimony that the agency took an objection, not a suitability action.

[00:20:36] Speaker 05:
Other evidence that corroborates her testimony is the letters that were actually sent to Mr. Solis, which notify him that an objection was taken and that he was removed from the certificate.

[00:20:46] Speaker 05:
interesting is he was invited to reapply for those positions.

[00:20:51] Speaker 05:
If there had been a suitability action, he most certainly would not have been invited to reapply because they would have found that he should be debarred.

[00:21:04] Speaker 05:
Finally, even this internal memo, which I think is the crux of the petitioner's claims,

[00:21:09] Speaker 05:
supports the idea that an objection was taken, because it says right in the memo.

[00:21:14] Speaker 04:
Can you show me on what page of the appendix he was re-invited to apply?

[00:21:18] Speaker 05:
Well, on both on page 126 and 127, in those letters that he received.

[00:21:32] Speaker 04:
If you decide to re-apply for positions in the PDP.

[00:21:36] Speaker 04:
Right.

[00:21:38] Speaker 04:
But then it says the results of your polygraph will be used for three years.

[00:21:43] Speaker 04:
Right.

[00:21:45] Speaker 04:
That's correct.

[00:21:47] Speaker 04:
Doesn't that imply that you can keep on applying for this same position, but it's not going to work for three years?

[00:21:58] Speaker 05:
It means that most likely that will be reused.

[00:22:01] Speaker 05:
There's actually a witness was asked whether an agency witness was asked whether he would have the opportunity to retake it within three years.

[00:22:10] Speaker 05:
And that witness said probably not.

[00:22:13] Speaker 04:
But I guess your larger point is that if this was an unsuitability action that affords appeal rights, then the letter wouldn't say you have still the opportunity to re-applaude.

[00:22:27] Speaker 05:
The opportunity to reapply did reapply.

[00:22:31] Speaker 05:
It's true, though, that the agency says it will reuse those results for a three-year period.

[00:22:37] Speaker 05:
And based on the witness testimony, that's most likely what would happen.

[00:22:41] Speaker 05:
They would reuse the polygraph for a three-year period.

[00:22:44] Speaker 01:
So that's the communication given to Mr. Solis.

[00:22:47] Speaker 01:
you were referring back to the internal memorandum.

[00:22:50] Speaker 01:
Right.

[00:22:51] Speaker 01:
And that's at appendix 21.

[00:22:52] Speaker 05:
21, that's correct.

[00:22:54] Speaker 01:
So let's look at that.

[00:22:55] Speaker 01:
This is actually from the assistant director of personal security division and the position that it addresses with respect to Mr. Solis is all CBP federal employment.

[00:23:10] Speaker 01:
So is this other position I referenced, the law enforcement communications agent,

[00:23:15] Speaker 01:
Is that a CBP federal employment position?

[00:23:19] Speaker 05:
It is, and that is exactly why the board remanded the case.

[00:23:22] Speaker 01:
I'm sorry, I didn't hear your answer.

[00:23:24] Speaker 01:
It is?

[00:23:25] Speaker 01:
Yes.

[00:23:26] Speaker 05:
And that's exactly why the board remanded for a hearing, because this memo is so unclear.

[00:23:31] Speaker 05:
It doesn't identify the positions at issue.

[00:23:35] Speaker 05:
And that is, I mean, that is why this is so inarticulate.

[00:23:38] Speaker 05:
This was not sent to Mr. Solis.

[00:23:40] Speaker 01:
But even this... It indicates to me what the agency is thinking.

[00:23:46] Speaker 01:
in terms of the use of its polygraph test or in terms of Mr. Solis, the first line of that says, an unfavorable suitability determination has been rendered for the applicant following suitability factors.

[00:24:00] Speaker 01:
So you're telling us that the word determination

[00:24:06] Speaker 01:
it should read action or if it read action then it'd be a suitability issue with respect to the board's jurisdiction.

[00:24:13] Speaker 05:
Now I want to make this clear.

[00:24:14] Speaker 05:
This is coming from the investigative side of the agency.

[00:24:18] Speaker 05:
So they're talking about a determination.

[00:24:20] Speaker 05:
Was the person found suitable or unsuitable?

[00:24:23] Speaker 05:
This is going, this memo, this information is going to an HR person.

[00:24:27] Speaker 05:
That HR person decides that there will be a suitability action, and if they decide there will be a suitability action, they forward that on to their examiner.

[00:24:34] Speaker 01:
Again, what happens if there's a suitability action?

[00:24:38] Speaker 01:
He's barred from employment?

[00:24:40] Speaker 05:
He could be debarred for employment up to three years, yes.

[00:24:43] Speaker 01:
But that's what's happened under the suitability determination.

[00:24:46] Speaker 01:
He's been barred.

[00:24:47] Speaker 05:
No, that's not true because he can reapply.

[00:24:51] Speaker 01:
He hasn't received, he's been barred from at least two positions so far, two law enforcement positions that have different names and from what I understand that this polygraph test is going to persist in his records for three years.

[00:25:05] Speaker 01:
Isn't that

[00:25:06] Speaker 01:
What am I not seeing here?

[00:25:09] Speaker 01:
That seems to me to be a bar for three years.

[00:25:12] Speaker 05:
The key difference is OPM regulations distinguish between an objection to a specific certificate, which is what happened here,

[00:25:21] Speaker 01:
I'm looking more at the jurisdiction of the board and whether they have jurisdiction and it depends on whether you have a suitability determination or if you have a selection issue here.

[00:25:37] Speaker 05:
That is the key question for jurisdiction.

[00:25:40] Speaker 05:
That's a key question.

[00:25:40] Speaker 05:
Whether it's for a specific position.

[00:25:42] Speaker 01:
So when I look at the internal document here, and it refers to all CB federal employment, it refers to suitability, unsuitability.

[00:25:52] Speaker 01:
And then you tell me that, well, an action hadn't been taken, so the board's jurisdiction is not invoked.

[00:25:59] Speaker 01:
But there was a determination.

[00:26:00] Speaker 01:
And under this suitability determination, Mr. Solis has been barred for three years

[00:26:07] Speaker 01:
He's going to be barred for three years.

[00:26:09] Speaker 05:
That's not what the testimony says.

[00:26:10] Speaker 01:
No, that's what's happened.

[00:26:12] Speaker 01:
That's what the record shows.

[00:26:14] Speaker 01:
He did not get either one of the two positions because of the polygraph test.

[00:26:19] Speaker 05:
That is correct.

[00:26:20] Speaker 01:
Right.

[00:26:21] Speaker 01:
And the polygraph test is going to affect any decision involving law enforcement for the next three years.

[00:26:28] Speaker 05:
It absolutely could.

[00:26:30] Speaker 01:
But why is that not a suitability action?

[00:26:36] Speaker 01:
We're looking at differences in words here.

[00:26:41] Speaker 05:
And when it comes down to differences in words, according to OPM, it's the form that matters, not the substance.

[00:26:47] Speaker 01:
Well, I'm looking at the jurisdiction of the board and having a veteran have, or an applicant rather, have the right to appeal.

[00:26:56] Speaker 01:
And we know that they cannot appeal when they're not selected for a particular position.

[00:27:02] Speaker 01:
But when they've been declared by an agency, we're not going to pick you regardless.

[00:27:06] Speaker 01:
of what you apply for for the next three years, then I'm beginning to think maybe that invokes a jurisdiction of the board.

[00:27:13] Speaker 05:
Prior to 2008, the board engaged in an analysis like that and called it constructive suitability.

[00:27:19] Speaker 01:
Yeah, I understand.

[00:27:20] Speaker 01:
So things change, but I'm not sure that the change has been sufficient.

[00:27:25] Speaker 01:
I'm not sure that that's so.

[00:27:27] Speaker 01:
Anyway.

[00:27:28] Speaker 03:
Let's hear from the Department of Justice.

[00:27:32] Speaker 03:
Let's ask the veto.

[00:27:43] Speaker 00:
May it please the court?

[00:27:45] Speaker 00:
This is a case about a simple, non-appealable, non-selection, or an objection to eligible.

[00:27:50] Speaker 00:
It is not a suitability case.

[00:27:53] Speaker 00:
Congress mandated in the Anti-Border Protection Act that all applicants for law enforcement positions with the Customs and Border Patrol Agency be polygraphed as part of their background investigations.

[00:28:02] Speaker 04:
So hypothetically, if Mr. Solis applied for a position in CBP that was not a law enforcement official position, it was something else?

[00:28:13] Speaker 04:
Would the polygraph test be used in that situation?

[00:28:17] Speaker 00:
It is my understanding that it would not, although I don't know whether the AGT would consider it for that purpose or not.

[00:28:24] Speaker 00:
It would depend on what the requirements were for that particular position.

[00:28:27] Speaker 00:
It could also be another position for which a polygraph is required.

[00:28:31] Speaker 00:
But I can assure you that the polygraph results did not debar or cancel Mr. Solis's

[00:28:38] Speaker 00:
eligibility to seek re-employment with the agency because on four separate times since his offers were rescinded in April and June of 2013.

[00:28:47] Speaker 04:
But I guess getting back to Judge Raina's questions, it seems in effect this exact same outcome, right?

[00:28:56] Speaker 04:
I mean, if he had been debarred, then he would never be able to get any of these positions.

[00:29:02] Speaker 04:
Okay, he wasn't technically debarred, but there's this polygraph test that's going to be used against him for three years.

[00:29:09] Speaker 04:
And each time that he's been applying for these positions, each time he's getting the contingent offer withdrawn.

[00:29:16] Speaker 04:
Why?

[00:29:16] Speaker 04:
Because of the polygraph test.

[00:29:19] Speaker 04:
I mean, from that vantage point,

[00:29:21] Speaker 00:
It looks like the exact same thing.

[00:29:41] Speaker 00:
And the sentence goes like this.

[00:29:43] Speaker 00:
If you reapply for a position with CVP, the results of your last background and or polygraph examination will be used in future investigations for a minimum of three years.

[00:29:53] Speaker 00:
Now we don't know precisely what that means, but we know what it doesn't mean.

[00:29:56] Speaker 00:
Mr. Solis had an opportunity to ask the witnesses at the jurisdictional hearing and obviously it's his burden to prove by preponderance before his jurisdiction.

[00:30:06] Speaker 04:
The reason why the contingent offers were withdrawn here for the BPA position and the CBPO position is because of the failed polygraph.

[00:30:16] Speaker 00:
That's not true.

[00:30:17] Speaker 00:
So he was offered a position in January.

[00:30:20] Speaker 01:
The letter, the letter, and this is an appendix on 26.

[00:30:24] Speaker 00:
Yes.

[00:30:25] Speaker 01:
Okay.

[00:30:25] Speaker 01:
It's to Mr. Solis.

[00:30:28] Speaker 01:
And it says, we've been notified that you were found unsuitable.

[00:30:31] Speaker 01:
This is a letter where it's being told he's not going to get the CBP job, right?

[00:30:36] Speaker 01:
Then it goes on and it talks about the pre-employment requirement.

[00:30:40] Speaker 01:
And then it finally, the final sentence says, and if you decide to reapply for position within the CBP, the results of your last background investigation and or polygraph examination will be used in future investigations for a minimum of three years.

[00:30:56] Speaker 01:
Why isn't that telling him that he didn't get the position because of the polygraph?

[00:31:02] Speaker 00:
We don't know what it means because there was no testimony elicited on it, but we know what it doesn't mean.

[00:31:06] Speaker 00:
It doesn't mean that if he's considered in the future, he won't get a job because of the polygraph.

[00:31:10] Speaker 00:
And I can represent to you that he applied on four separate occasions after that and received tentative offers once he didn't show up for his job interview.

[00:31:18] Speaker 00:
once he didn't respond to the agency's correspondence.

[00:31:21] Speaker 00:
And there was one instance where he had a... Is this in the record?

[00:31:23] Speaker 00:
It's not in the record.

[00:31:24] Speaker 00:
There was no evidence it was put in the record with respect to the meaning of this particular provision.

[00:31:29] Speaker 01:
But another... Excuse me.

[00:31:30] Speaker 01:
There is evidence in the record, and this is back at Appendix 21.

[00:31:36] Speaker 01:
This is the internal memorandum.

[00:31:39] Speaker 01:
And it says that it ties the suitability determination that was used to deny him his position

[00:31:45] Speaker 01:
on the basis of criminal or dishonest conduct.

[00:31:49] Speaker 01:
That's the result of the polygraph, correct?

[00:31:52] Speaker 00:
That is the result of the polygraph.

[00:31:53] Speaker 01:
How can you argue then that the polygraph was not the basis of the denial of his position?

[00:32:01] Speaker 00:
No, let me be clear.

[00:32:02] Speaker 00:
He didn't get the positions that were rescinded in 2013 because

[00:32:07] Speaker 00:
He failed his polygraph.

[00:32:09] Speaker 00:
That is clear.

[00:32:10] Speaker 00:
But with respect to whether he has been debarred, now obviously suitability action is a term of art that's defined in the regulations at 731-205A, and in particular an agency debarment is defined at 731-205A.

[00:32:21] Speaker 00:
And that means that you will be denied examination for or appointment going forward for a position.

[00:32:27] Speaker 00:
And we know he wasn't debarred.

[00:32:29] Speaker 00:
because Mr. Staples, the author of the memorandum founded at Appendix 21 that Your Honour just referred to, testified on no less than six occasions that only that the memorandum... Well, just try to imagine a hypothetical where someone keeps applying over and over again and he ultimately isn't chosen because of a failed polygraph.

[00:32:51] Speaker 04:
And so for three years this keeps happening over and over again.

[00:32:56] Speaker 04:
Do you understand why in effect that looks like essentially an unsuitability action because he is being blocked from being able to get hired due to the polygraph test?

[00:33:08] Speaker 00:
It just means that he doesn't meet the requirements for the position.

[00:33:10] Speaker 00:
There are also other requirements for the position relating to your age, relating to your education, relating to your skill sets.

[00:33:16] Speaker 00:
You have to have certain language skills, certain firearms handling skills.

[00:33:19] Speaker 00:
It just means he doesn't meet one of the requirements that he's not going to be

[00:33:22] Speaker 00:
selected for that position, but we don't know that that sentence that says, used in future investigations, will preclude him going forward.

[00:33:30] Speaker 00:
And in fact, he was given options.

[00:33:32] Speaker 01:
We do know that, well, we don't know why he was not selected for those positions based on education and all these other elements.

[00:33:43] Speaker 01:
But we do know that criminal or dishonest conduct was a reason.

[00:33:49] Speaker 00:
I'm sorry, which positions are you referring to?

[00:33:51] Speaker 00:
The ones that were rescinded in 2013 or the ones that he didn't get thereafter?

[00:33:55] Speaker 01:
The ones he didn't get thereafter.

[00:33:57] Speaker 00:
No, I can assure you, so he was given, in January he applied for another BPA position, in January of 2015, within the three years.

[00:34:06] Speaker 00:
And he subsequently in July applied for the same position, so that application subsumed into the July one.

[00:34:12] Speaker 00:
And that's made clear in the job announcement.

[00:34:14] Speaker 00:
It's not like the lottery where if you buy two tickets, you get two chances.

[00:34:17] Speaker 00:
You don't get to apply twice to the same job position and get additional chances.

[00:34:21] Speaker 00:
So there's only one.

[00:34:22] Speaker 00:
Hold on a second.

[00:34:23] Speaker 04:
Yeah.

[00:34:24] Speaker 04:
So we're in 2017 now.

[00:34:26] Speaker 04:
Yeah.

[00:34:26] Speaker 04:
Right?

[00:34:26] Speaker 04:
So this is several years after the polygraph test.

[00:34:30] Speaker 04:
Is the polygraph test still relevant or it's no longer relevant?

[00:34:35] Speaker 00:
My understanding is he was given another polygraph on May 12th of 2016, and he failed that polygraph as well.

[00:34:45] Speaker 00:
So he was given an opportunity to retake the exam.

[00:34:47] Speaker 01:
It's not in the record.

[00:34:49] Speaker 01:
Well then, how can you argue on the basis that something's not on the record?

[00:34:54] Speaker 00:
because that's what Mr. Gibbons has argued.

[00:34:57] Speaker 00:
Mr. Gibbons has said he's been debarred and he's not been considered for these positions, but that's simply not the case.

[00:35:03] Speaker 00:
He has been considered.

[00:35:04] Speaker 00:
He didn't show up for his job interview.

[00:35:06] Speaker 00:
He didn't respond to our correspondence.

[00:35:07] Speaker 00:
He was given another polygraph.

[00:35:09] Speaker 00:
He failed that.

[00:35:09] Speaker 00:
And there was one position that was rescinded because of that.

[00:35:12] Speaker 00:
But I can assure you, he was absolutely examined for and given consideration for additional law enforcement officer position within the three-year period.

[00:35:22] Speaker 00:
The judge expressly entertained Mr. Solis's argument that the polygraph operated as a debarment on page 782 of the record.

[00:35:31] Speaker 00:
And he rejected that.

[00:35:32] Speaker 00:
He said, no, because it doesn't operate as a debarment.

[00:35:36] Speaker 00:
Because within the three-year period, you have not only applied for, but on 755 of the record, Mr. Solis testified he got two offers.

[00:35:43] Speaker 03:
Wait, wait, wait.

[00:35:44] Speaker 03:
Please don't speak through Judge's question.

[00:35:47] Speaker 04:
Yeah, it's getting annoying.

[00:35:50] Speaker 04:
So back to my question.

[00:35:54] Speaker 04:
If there was evidence hypothetically in the record that the polygraph tests were the reason why each and every time someone applied,

[00:36:04] Speaker 04:
they had their contingent offer withdrawn.

[00:36:07] Speaker 04:
Okay, this is a hypothetical.

[00:36:08] Speaker 00:
Yes.

[00:36:09] Speaker 04:
Don't cite me anything in the record.

[00:36:11] Speaker 00:
Okay.

[00:36:11] Speaker 04:
In this hypothetical, wouldn't that look like, in effect, a suitability action?

[00:36:20] Speaker 04:
Why wouldn't it look like that?

[00:36:23] Speaker 04:
Because it has the exact same impact as a suitability act.

[00:36:28] Speaker 00:
It may, as a practical matter, have the same effect that a suitability action would have.

[00:36:34] Speaker 00:
But it is not a suitability action which is defined in the regulations as a debarment or a cancellation of eligibility because the applicant can still apply the language that is found in the records.

[00:36:44] Speaker 04:
Right, but what's the point of applying over and over again if there's already a design in place by the government to

[00:36:53] Speaker 04:
to say no to you because of the polygraph test.

[00:36:56] Speaker 00:
It could, as a practical matter, operate as a suitability action, but we don't have evidence that that is what happened here.

[00:37:02] Speaker 01:
And in fact, there's evidence... If it could apply, in effect, as a suitability action, then why should we not find that that invokes the jurisdiction of the board?

[00:37:12] Speaker 01:
Because that's the issue we're looking at.

[00:37:15] Speaker 00:
Because at 731-203B,

[00:37:18] Speaker 00:
the regulations were amended to say that you can... I get that.

[00:37:23] Speaker 01:
I get that.

[00:37:24] Speaker 01:
The regulations, and you're arguing that under the new regulations, this is not a suitability action.

[00:37:30] Speaker 01:
But if the effect is the same, we're talking about a federal employee here, if the effect is the same, and there's going to be a debarment for three years,

[00:37:38] Speaker 01:
Why shouldn't we find that that invokes the jurisdiction of the board?

[00:37:42] Speaker 00:
Because at part 332-406-G, OPM, which has authority over suitability matters, has expressly said that if you're not selected, you do not have appeal rights.

[00:37:52] Speaker 00:
And here, under the reg 731-203-B, Mr. Solis was simply not selected.

[00:37:57] Speaker 00:
There's nothing in the record to support the fact that the polygraph operated as a bar to being reconsidered for another position.

[00:38:03] Speaker 00:
It may, as a practical matter, make it more difficult for him to get a law enforcement officer position, but it doesn't mean that he's not eligible to be considered for that.

[00:38:11] Speaker 04:
Has CBP changed its so-called templates so it doesn't speak in the way it speaks as to all CBP employment, non-suitability determination?

[00:38:23] Speaker 00:
I believe it has changed its forms and templates to update them.

[00:38:27] Speaker 04:
So what do they say now?

[00:38:29] Speaker 04:
I know it's outside the record, but I'm just curious because obviously the internal memo with its so-called templates didn't look good, which is why the MSPB called for a jurisdictional hearing.

[00:38:43] Speaker 00:
I'm not familiar with what the current templates say.

[00:38:47] Speaker 00:
It has been communicated to me that they have been amended to fix the problem that we find here, the inartful reference to suitability, which is confusing.

[00:38:56] Speaker 03:
Thank you, counsel.

[00:38:57] Speaker 03:
I think we've explored the issue.

[00:39:00] Speaker 03:
Mr. Gibbons will give you your full five minutes back.

[00:39:04] Speaker 03:
Thank you, Judge.

[00:39:05] Speaker 03:
If you need it.

[00:39:07] Speaker 02:
I do.

[00:39:08] Speaker 02:
As the trial lawyer, there were a number of things said that I can't address them all.

[00:39:13] Speaker 02:
But I will address a few.

[00:39:16] Speaker 02:
HR doesn't make any decisions.

[00:39:18] Speaker 02:
They're administrative in function.

[00:39:21] Speaker 02:
They receive a letter that says he's unsuitable for all fair employment.

[00:39:25] Speaker 02:
That's the end of it.

[00:39:26] Speaker 02:
There's no selecting official discussion.

[00:39:29] Speaker 02:
He just gets a letter.

[00:39:30] Speaker 02:
The letter they sent him didn't reference any position.

[00:39:33] Speaker 02:
It said he failed a polygraph.

[00:39:36] Speaker 02:
There was no identification of a position, neither in the internal memo or the letter sent to him.

[00:39:43] Speaker 02:
I had your same questions, Judge Chen.

[00:39:45] Speaker 02:
I drilled down on this in the record.

[00:39:47] Speaker 02:
I asked, and you look at 735, I asked Mr. Staples about that memo.

[00:39:52] Speaker 02:
I said, okay, this is a template for any, I said, okay, this is the actual template letter for any unsuitable applicants that we actually, I'm sorry, I missed

[00:40:05] Speaker 02:
Let me strike that and start over.

[00:40:06] Speaker 02:
Judge Henderson asked, the judge got involved, because they said this is the template for an unsuitability determination, not something less than unsuitability.

[00:40:18] Speaker 02:
And the judge asked, OK, so let's say you had done an entire suitability adjudication.

[00:40:24] Speaker 02:
This is the memo you would send for that.

[00:40:26] Speaker 02:
Witness, write.

[00:40:27] Speaker 02:
We would send this memo.

[00:40:29] Speaker 02:
They sent him.

[00:40:30] Speaker 02:
That was a suitability finding.

[00:40:33] Speaker 02:
He clarified it to the judge's question.

[00:40:35] Speaker 02:
He said it in his original testimony.

[00:40:36] Speaker 02:
He said it in his sworn statement in the EEO case, which is at pages 72 and 73.

[00:40:40] Speaker 02:
They said it over and over again.

[00:40:42] Speaker 01:
The government... The opponent argues that that's not enough.

[00:40:46] Speaker 01:
There may have been a determination made, but there's no action.

[00:40:50] Speaker 01:
What's your response to that?

[00:40:51] Speaker 02:
They're playing with words.

[00:40:53] Speaker 02:
In law school, we would say,

[00:40:54] Speaker 02:
This is the exception swallow the rule.

[00:40:57] Speaker 02:
The rule used to be, as he stated, well they created, they changed the rule, so now the exception swallows the rule.

[00:41:03] Speaker 02:
You're never going to have a suitability determination if you don't find that this is one.

[00:41:08] Speaker 04:
The problem is, in this particular appeal, you're not challenging the validity of the regulation.

[00:41:15] Speaker 04:
So, now the next question is,

[00:41:18] Speaker 04:
you know, did they properly apply the regulation on the facts of this case?

[00:41:23] Speaker 04:
And there's at least some argument that they can make that based on some of the statements that favor their views in the documents and then the testimony by their witnesses that the AJ credited

[00:41:41] Speaker 04:
there's a view here that ultimately what happened is that there was just a non-selection for these two particular positions.

[00:41:49] Speaker 04:
I understand your point that the memo, the template says something about all CBP federal employment.

[00:41:55] Speaker 04:
At the same time, the internal memo also talks about how the personnel division's sending this along to HR for HR's processing of an objection to an eligible or for taking other action

[00:42:10] Speaker 04:
as HR deems appropriate.

[00:42:12] Speaker 04:
And then also indicates that this subject is not entitled to MSPB appeal rights.

[00:42:18] Speaker 04:
So there's content in this memo that also supports the idea that the intentions here of the agency was, if anything, to simply cancel the eligible for this position rather than do a full-scale broad

[00:42:37] Speaker 04:
what I guess we're now calling unsuitability action.

[00:42:42] Speaker 04:
And so on the facts here, if we have to review it deferentially, there's a way to just say, okay, this is affirmable.

[00:42:51] Speaker 04:
Is it right to blur the line between

[00:42:54] Speaker 04:
unsuitability actions and cancellations of eligible as the regulation currently does?

[00:43:00] Speaker 04:
I don't know, but that seems like something that's not at stake in this case because what we don't have is a facial challenge to the validity of the regulation itself.

[00:43:13] Speaker 02:
Yes, a couple of thoughts in answer to your comments, Judge.

[00:43:18] Speaker 02:
One,

[00:43:19] Speaker 02:
We can't challenge the regulation.

[00:43:21] Speaker 02:
We don't have the authority.

[00:43:23] Speaker 02:
The appellant, you can't file a claim saying this is an unlawful regulation.

[00:43:28] Speaker 02:
That's not how the board works.

[00:43:30] Speaker 02:
That is the regulation.

[00:43:31] Speaker 02:
We're bound by it.

[00:43:32] Speaker 02:
And I quoted it in the initial appeal.

[00:43:34] Speaker 02:
Now, personally, I don't agree with it.

[00:43:36] Speaker 02:
I don't agree with what that change was in 2008.

[00:43:38] Speaker 02:
I think the court should have looked at it in 2008, perhaps, when a case came to it and said this is overreaching.

[00:43:44] Speaker 02:
But we can't challenge it.

[00:43:46] Speaker 02:
We have to live with it.

[00:43:47] Speaker 02:
So what I'm saying to you is in living with the regulation as written, the exception has now swallowed the entire suitability 5 CFR 731.

[00:43:58] Speaker 02:
The whole rule is gone now because the adjudication is done in personnel security.

[00:44:05] Speaker 02:
There is no adjudication outside.

[00:44:07] Speaker 02:
It's all been pro forma and it's just the sending of letters.

[00:44:10] Speaker 02:
that you need to look at the thought process of what happened in the suitability office.

[00:44:14] Speaker 02:
This is a new requirement.

[00:44:15] Speaker 02:
We're now going to give all, we're going to give polygraphs to everyone.

[00:44:18] Speaker 02:
You fail, that's it.

[00:44:20] Speaker 02:
You're done.

[00:44:21] Speaker 02:
And then on balance, if you look at the totality of the record, you'll see that that decision was an effective bar.

[00:44:29] Speaker 02:
Whether they intended it or not, it was.

[00:44:31] Speaker 03:
Thank you, counsel.

[00:44:32] Speaker 03:
I'll take the case under advisement.