[00:00:00] Speaker 03:
162540, Sweden vs. MSPB.

[00:00:39] Speaker 03:
Let's make sure the other side is set.

[00:00:42] Speaker 03:
Okay, please proceed.

[00:00:43] Speaker 02:
Thank you, Chief Judge Prost.

[00:00:45] Speaker 02:
May I please the court?

[00:00:47] Speaker 02:
This case involves a straightforward and undisputed legal issue that the Merit Systems Protection Board simply got wrong, namely that the existence of new and material facts will defeat the application of collateral estoppel.

[00:01:01] Speaker 02:
The board on appeal agrees with that principle, but the board in the decision on review never recognized it

[00:01:07] Speaker 02:
and certainly didn't apply it.

[00:01:09] Speaker 00:
What new and material evidence was presented?

[00:01:14] Speaker 02:
So it's the four documents that Mr. Sweeting attached to his petition for review to the court, and these are at appendix 107 to 113.

[00:01:24] Speaker 00:
What relevance do those documents have to the only ground for which he could contest his

[00:01:36] Speaker 00:
dismissal, namely that the dismissal was a result of political action.

[00:01:41] Speaker 02:
Certainly.

[00:01:41] Speaker 02:
And before I answer your question, Judge Lynn, I do want to make clear that that question is not actually before this court because it wasn't considered by the board.

[00:01:50] Speaker 02:
But to answer your question, I think it helps if we go back to the beginning of this case and how we got here.

[00:01:58] Speaker 02:
This case has been from the beginning about partisan politics, which of course is one of the two grounds.

[00:02:04] Speaker 02:
on which Mr. Sweeting could obtain jurisdiction as a probationary employee.

[00:02:08] Speaker 02:
And we know that it's been about partisan politics from the beginning.

[00:02:12] Speaker 02:
We had the board's initial opinion in the Sweeting 1 case in which they in fact issued a presidential opinion on what the partisan political reason standard means.

[00:02:21] Speaker 02:
That case was then remanded to the presiding official.

[00:02:24] Speaker 02:
And unfortunately, we don't have the records from that remand proceeding because they've been destroyed.

[00:02:30] Speaker 02:
But in that remand proceeding, Mr. Sweeting alleged that he was a member of the Republican party and that the other individuals involved were members of the Democratic party.

[00:02:41] Speaker 02:
That allegation was held to not satisfy the non-frivolous standard.

[00:02:46] Speaker 02:
But now what we have is the newly discovered documents, and in particular, it's attachment A and attachment C to his petition for review.

[00:02:54] Speaker 02:
And what they do is they shore up his previously, his own allegation,

[00:03:00] Speaker 02:
that there was differential treatment here.

[00:03:03] Speaker 03:
I'm sorry, I don't remember these documents.

[00:03:05] Speaker 03:
Does he allege that the people who got favorable treatment better than him were of a certain political party different than his?

[00:03:12] Speaker 02:
My understanding is that that was his allegation in the initial, the remand proceeding after tweeting one when it went back to the presiding official.

[00:03:20] Speaker 02:
And I recognize, unfortunately, these facts are not on the record, but you have that allegation

[00:03:25] Speaker 03:
Well, yes.

[00:03:25] Speaker 03:
So I'm looking at what he put forward that you're arguing about.

[00:03:30] Speaker 03:
I guess I have the same question that I think Judge Lynn had, whereas what is the significance of relevance of these documents?

[00:03:39] Speaker 03:
Now you say, well, that isn't before us, but sure it is, because we're deciding whether they were right, the collateral estoppel applies.

[00:03:47] Speaker 03:
And in order to justify it not applying, you've got to

[00:03:50] Speaker 03:
demonstrate that this is a different case than the one adjudicated.

[00:03:56] Speaker 02:
Right.

[00:03:56] Speaker 02:
We have to demonstrate that the new evidence is material to the question whether he is non-fraudulously alleged partisan political reasons.

[00:04:04] Speaker 02:
That is the question that the board didn't consider.

[00:04:07] Speaker 02:
Do you think that under the Waldo case, the legal error alone merits a remand here?

[00:04:13] Speaker 02:
I do want to answer your question.

[00:04:15] Speaker 02:
And so the relevance here is that you have in attachment A, this is the investigative report from the training center staff.

[00:04:25] Speaker 02:
And that's at appendix 107 to 109.

[00:04:28] Speaker 02:
And you have a discussion of the allegations against Mr. Sweeting and the response to them and the allegations against several other students and the very different response to them.

[00:04:36] Speaker 02:
You also have attachment C, which is that appendix one

[00:04:42] Speaker 02:
12, which is the letter explaining that several of the other students against whom similar allegations were made and who, like Mr. Sweeting, denied those allegations were not terminated from their positions.

[00:04:55] Speaker 00:
That relates to differential treatment, but not necessarily connected to political activity.

[00:05:02] Speaker 02:
It relates to differential treatment.

[00:05:04] Speaker 02:
It backs up his claim that the agency's reason for dismissing him was pretextual.

[00:05:09] Speaker 02:
And again, you have to pair that with the background of this case.

[00:05:12] Speaker 02:
And I recognize it would be ideal if he had reiterated his prior allegations here.

[00:05:17] Speaker 02:
He is a pro se litigant.

[00:05:19] Speaker 02:
And so his pleadings, you need to be liberally construed.

[00:05:22] Speaker 02:
There's no confusion that this case is about partisan politics.

[00:05:25] Speaker 02:
And so again, you have an allegation of party membership.

[00:05:28] Speaker 02:
And then you have the documents to back that up.

[00:05:31] Speaker 00:
We think that there has to be some connection.

[00:05:34] Speaker 00:
Don't you agree with the, to avoid the effects of collateral estoppel, there has to be something that he can point to that makes that connection.

[00:05:46] Speaker 00:
Otherwise it would be like him submitting his high school yearbook and saying, Hey, this is new evidence.

[00:05:53] Speaker 00:
And then, you know, it's not before you.

[00:05:56] Speaker 00:
to consider what that is or how it's connected to political activity, that gets us beyond collateral estoppel, let's go.

[00:06:04] Speaker 02:
No, to be clear, we're not arguing that any submission of new evidence defeats collateral estoppel.

[00:06:09] Speaker 02:
It does have to be material.

[00:06:11] Speaker 02:
But I think it might be helpful here to look back at what the board actually said to understand why we believe a remand is necessary here.

[00:06:20] Speaker 02:
Because if you look at appendix 14,

[00:06:26] Speaker 02:
This is the board's, this paragraph in the middle is the board's only analysis of Mr. Sweeding's evidence.

[00:06:31] Speaker 02:
And to be clear, this is not analyzing the collateral estoppel doctrine.

[00:06:36] Speaker 02:
That's the legal error that we've pointed out.

[00:06:38] Speaker 02:
This is after the board has concluded that collateral estoppel applies simply because it's the same jurisdictional issue very broadly defined.

[00:06:47] Speaker 02:
That's the legal error.

[00:06:49] Speaker 02:
But even if you look at their analysis of new material evidence, which was under a different standard,

[00:06:55] Speaker 02:
All they say, the sum total of the board's analysis on materiality is that the contents of the document, quote, addresses the merits of the appellant's claim and is not material to the jurisdictional issue.

[00:07:08] Speaker 02:
That statement simply does not make sense.

[00:07:11] Speaker 02:
For a probationary employee like Mr. Sweeding, in order to invoke the board's jurisdiction, he has to make a non-frivolous allegation that his termination was based on either marital status, which he does not claim,

[00:07:23] Speaker 02:
for partisan political reasons, which he does.

[00:07:25] Speaker 02:
If he makes that non-frivolous allegation to fully obtain the board's jurisdiction, he has to prove that by a preponderance of the evidence.

[00:07:31] Speaker 03:
I guess I read this sentence, so let me pause it how I'm reading it, and then you can tell me if we're just disagreeing on the consequence of that or whether we're reading it differently.

[00:07:41] Speaker 03:
This strikes me as absolutely fine, because when they were saying its content addresses the merits of the claim, it goes to Judge Lynn's point,

[00:07:51] Speaker 03:
If we were in the merits now and he had passed the threshold jurisdiction, then perhaps maybe at some level it would be relevant to say you were treated differently than other people and therefore this wasn't the appropriate remedy.

[00:08:04] Speaker 03:
But they said, no, no, no, that's not what we're here to adjudicate, which is it's relevant to the jurisdictional question about political affiliation.

[00:08:15] Speaker 03:
One, I think that's what they're saying.

[00:08:16] Speaker 03:
And two, I don't see how given the record that we have before us, you can call that into question.

[00:08:21] Speaker 03:
I think they looked at the documents.

[00:08:23] Speaker 03:
They said there's nothing here about political affiliation.

[00:08:26] Speaker 03:
Political affiliation, non-frivolous allegation is what we're here to decide.

[00:08:30] Speaker 03:
So I don't see what the problem is with that sentence, honestly.

[00:08:33] Speaker 02:
So they didn't say that.

[00:08:34] Speaker 02:
That's part of the problem.

[00:08:36] Speaker 02:
The board's appellate council claims that the documents have nothing to do with political affiliation.

[00:08:41] Speaker 02:
But if we confine ourselves to the four corners of the board's decision, which is what the court has to review, the board is not saying that.

[00:08:53] Speaker 02:
This underscores the problem here.

[00:08:55] Speaker 02:
We're speculating about what the board might... Well, no, I'm reading it.

[00:08:58] Speaker 03:
I mean, we can create a debate about parsing the words and the definition of any words, but I'm telling you how I read it, and I think that's a straightforward reading.

[00:09:08] Speaker 03:
I mean, if we had to remand every case because two people disagreed about precisely what they said, we'd be in no trouble here.

[00:09:16] Speaker 02:
I agree.

[00:09:16] Speaker 02:
I don't think it's a question of precision, so let me address...

[00:09:20] Speaker 02:
When the board refers to the merits of the appellant's claim, the merits of his claim will be, were you terminated for partisan political reasons, or does the agency have a non-discriminatory basis for terminating you?

[00:09:35] Speaker 02:
And so it's, to me, incoherent to say that something is relevant to the merits of his claim, namely, I was terminated based on partisan political reasons, but not relevant to the jurisdictional issue, namely,

[00:09:49] Speaker 02:
have I made a non-frivolous allegation that I was terminated.

[00:09:52] Speaker 01:
So can you summarize for me the newly discovered evidence about partisan political reasons?

[00:09:59] Speaker 02:
Yes.

[00:10:00] Speaker 02:
The newly discovered evidence that is material is the investigative report and the letter.

[00:10:09] Speaker 02:
Again, we have his prior allegation that this case was about partisan politics.

[00:10:13] Speaker 02:
And then what the evidence does is it's documents that back up his allegation that show that this is something more than his work.

[00:10:19] Speaker 01:
Well, they're documents.

[00:10:20] Speaker 01:
What was the content that you're relying on?

[00:10:23] Speaker 02:
Certainly, it's at appendix 107 to 108.

[00:10:26] Speaker 02:
This is the investigative report where the training center director writes a memo to his boss at the federal prison system and describes the allegations that were made against Mr. Sweeting.

[00:10:38] Speaker 02:
the allegations that were made against other students, then walks through the investigation of the allegations and shows that Mr. Sweeting, like the other students, denied that he had used marijuana.

[00:10:51] Speaker 02:
But unlike the other students, Mr. Sweeting was first let go from the training center and then we know later terminated by the agency, whereas the other students, as we see in Attachment C, which is at Appendix 111, retained their positions.

[00:11:08] Speaker 02:
And so as he's explained at appendix 106 in his petition for review to the board, that underscores his prior claim of differential treatment.

[00:11:17] Speaker 01:
And the political emphasis?

[00:11:21] Speaker 01:
Well, just to be sure, I understand where the partisan political emphasis affects the view of that information.

[00:11:30] Speaker 02:
And that is his allegation from the first proceeding, which

[00:11:36] Speaker 02:
is repeating here even though it's not.

[00:11:37] Speaker 01:
You're saying it's just enough to say that this was related to, in fact, establishes political affiliation

[00:11:52] Speaker 02:
I think that's certainly enough to satisfy the non-frivolous allegation.

[00:11:56] Speaker 02:
And remember, that's the first step of the jurisdictional analysis, to have a non-frivolous allegation, something more than conclusory.

[00:12:03] Speaker 02:
And here we have not just him saying, I think a conclusory allegation would be to just come in and say, my termination was based on partisan politics.

[00:12:11] Speaker 02:
We don't have that.

[00:12:11] Speaker 02:
We have more than that.

[00:12:12] Speaker 02:
We have that allegation.

[00:12:13] Speaker 02:
We have his prior allegation that he was a member of the Republican Party, that the other individuals involved in the incident were members of the Democratic Party.

[00:12:22] Speaker 02:
And then we have a documentary evidence that clearly shows that the basis for his termination was pretextual.

[00:12:30] Speaker 02:
That taken together has to be more than a non-frivolous allegation.

[00:12:33] Speaker 02:
Then the question whether he's established jurisdiction by a preponderance of the evidence would be the next thing for the board to consider.

[00:12:39] Speaker 03:
OK, why don't we hear from the government and we'll reserve the remainder for you guys.

[00:12:57] Speaker 04:
The board correctly determined that Petitioner's new appeal of his 1979 removal was barred by collateral estoppel.

[00:13:06] Speaker 04:
The issue in this case is identical to that litigated in the prior appeal, and that is whether the board had jurisdiction over the removal.

[00:13:14] Speaker 04:
In his first appeal, Petitioner argued that he was removed from his position based on partisan political reasons.

[00:13:20] Speaker 04:
He was represented by an attorney in that

[00:13:22] Speaker 04:
proceeding.

[00:13:23] Speaker 03:
Which one was that?

[00:13:24] Speaker 03:
This was the one in 1979.

[00:13:26] Speaker 04:
Yes.

[00:13:27] Speaker 04:
He was represented and the issue of the board's jurisdiction based on partisan political reasons was fully litigated.

[00:13:35] Speaker 04:
In fact, the board even remanded the case to the administrative judge to further explore that issue under the correct standard.

[00:13:44] Speaker 04:
Now 37 years later, Petitioner again alleges in a new appeal that his removal was based on partisan political reasons.

[00:13:51] Speaker 04:
The law is clear that in order to prevent the operation of collateral estoppel, an appellant must present new evidence that is material to the issue that was previously litigated.

[00:14:01] Speaker 04:
Here, Petitioner presented allegedly new evidence that relates only to the merits of his removal, as the board found, not to the issue adjudicated, which is whether the board had jurisdiction over the appeal.

[00:14:14] Speaker 04:
Petitioner has not presented any explanation for why he believes the new evidence he presented is material

[00:14:20] Speaker 03:
Allegation that his removal was based on partisan political reasons and instead he's only alleging that The documents the new documents show that some employees were treated differently But the other side represents that this is in the context of I know it's over a period of over 30 years So it's hard to put it together But that there is some record evidence or some evidence that shows the political affiliations of the various cast of characters.

[00:14:46] Speaker 03:
We're talking about here

[00:14:47] Speaker 04:
Well, actually that evidence is not in the record because that record has been destroyed.

[00:14:52] Speaker 04:
So the evidence of which political parties these people belong to was not before the board.

[00:14:57] Speaker 04:
The only thing the board this time had was his allegations as presented in the new documents he attached.

[00:15:05] Speaker 04:
So this board had no way of knowing that he previously had alleged that these other employees were Democrats and he was a Republican.

[00:15:13] Speaker 04:
That's because those records no longer exist.

[00:15:17] Speaker 03:
And those were destroyed in the normal course of getting rid of them?

[00:15:23] Speaker 04:
They were destroyed, I believe, in 1998, pursuant to records retention policies.

[00:15:29] Speaker 04:
And in fact, the administrative judge this time around issued a show cause order informing the petitioner that his claim may be barred by collateral estoppel and directing him to

[00:15:43] Speaker 04:
show cause why it should not be.

[00:15:46] Speaker 04:
In response to that order, the petitioner only argued that basically that the underlying facts of the merits of his removal had not yet been litigated.

[00:15:54] Speaker 04:
He didn't even make any argument that the issue of board's jurisdiction based on political reasons was even an issue in this case.

[00:16:04] Speaker 04:
Similarly, when he appealed the administrative judge's decision to the full board in his petition for review, he also made no reference to partisan political reasons for his removal.

[00:16:15] Speaker 04:
Instead, he argued that he was entitled to a due process hearing in order to determine the credibility of the individuals who had made the allegations against him, which was a meritistic determination.

[00:16:27] Speaker 04:
So in the absence of any new evidence that was material to the question of whether

[00:16:33] Speaker 04:
The board had jurisdiction.

[00:16:35] Speaker 04:
The board properly applied collateral stop to bar the appeal.

[00:16:41] Speaker 04:
With regard to petitioner's argument that the board should have construed his new appeal as a request to reopen the previous case, the board properly did not exercise its discretionary power to reopen the previous appeal.

[00:16:58] Speaker 04:
Notably, Petitioner never actually made a request for reopening.

[00:17:02] Speaker 04:
All he did was file a new appeal.

[00:17:05] Speaker 04:
So the only basis for any indication that the board should have considered this as a request for reopening was a footnote in the administrative judge's decision, which stated that even assuming for the sake of argument that this could be construed as a request for reopening, the administrative judge did not have the power to grant that request because only the board can reopen a case.

[00:17:28] Speaker 04:
Even if the board should have considered this as a request to reopen, it would be a waste of resources to remand the case to instruct the board to consider it as such a request because this case doesn't meet the requirements for reopening.

[00:17:44] Speaker 03:
What's the standard of review for a denial of a request to reopen?

[00:17:49] Speaker 04:
The standard of review is an abusive discretion standard.

[00:17:54] Speaker 04:
This is a reopening is love to the board's discretion.

[00:17:57] Speaker 04:
Usually they'll only reopen a case in extraordinary circumstances and usually also within a short time after the previous decision is issued.

[00:18:06] Speaker 04:
Here obviously it hasn't been a short time and based on the evidence petitioners submitted, the extraordinary circumstances standard also isn't met.

[00:18:18] Speaker 04:
So if the court has no further questions, we would ask that you affirm the board's decision.

[00:18:23] Speaker 04:
Thank you.

[00:18:33] Speaker 02:
Thank you.

[00:18:34] Speaker 02:
To the point that we've been discussing about whether Mr. Sweeney's new documents are material to his jurisdictional claim.

[00:18:44] Speaker 02:
Again, I want to emphasize that there's been no confusion since the beginning.

[00:18:48] Speaker 02:
This case has been about partisan politics.

[00:18:50] Speaker 02:
And so you take that history and then Mr. Sweeney comes in and as the government points out, there was an order to show cause why collateral establish should not apply.

[00:19:00] Speaker 02:
And at appendix 84, Mr. Sweeney explained that in his response.

[00:19:04] Speaker 02:
He said, because the facts, lateral sacral doctrine does not apply to the facts in this, and he uses the word instinct, I believe he means instance.

[00:19:12] Speaker 02:
The prima facie facts and circumstantial evidence have never been litigated and decided in a prior appeal or a hearing by the MSPB.

[00:19:20] Speaker 02:
And the facts that he's referring to

[00:19:22] Speaker 02:
are at the prior page 84, which discusses the contents of the investigative report of this very same new document that he is submitting and that is attached to his petition for review.

[00:19:35] Speaker 02:
And then again, at appendix 106 in his petition for review, he explains how these new documents are linked to his prior claim of differential treatment, which was alleged based on partisan political reasons.

[00:19:48] Speaker 02:
And so taking all of this in combination, you have an allegation of partisan political discrimination and documentary evidence of differential treatment.

[00:19:57] Speaker 02:
It's very difficult to see how that is not, first of all, how that doesn't move the needle at all on the frivolity or non-frivolity of his allegation, which is of course the question for Claude Ostapel purposes.

[00:20:10] Speaker 02:
But even beyond that, how that's not enough to show a non-frivolous allegation of partisan political motivation for his termination.

[00:20:17] Speaker 00:
At Appendix 106, where does he talk about partisan political activity?

[00:20:24] Speaker 02:
He does not expressly refer to it, but what he does at Appendix 106 is he explains after pointing out that there's new and material evidence available here,

[00:20:35] Speaker 02:
He describes the documents, and in particular, attachment A and attachment C showing the differential treatment.

[00:20:42] Speaker 02:
He does have attachment B, which is not a new document.

[00:20:44] Speaker 02:
That's simply to show that he was terminated, whereas the other students were not.

[00:20:50] Speaker 02:
And I'd like to briefly address the reopening point as well that the government discussed.

[00:20:56] Speaker 02:
Yes, Mr. Sweeting did not include an express request for reopening in his papers, but we believe it was arbitrary and capricious for the board not to treat his submission

[00:21:05] Speaker 02:
as an implicit request for reopening as it is done in similar circumstances, including the two McNeil cases that are cited in our brief, McNeil with an I and McNeil with an E. In both cases, there were jurisdictional dismissals, collateral estoppel was held to apply, and there was a submission of new and material evidence.

[00:21:24] Speaker 02:
In neither case was there an express request for reopening, including the McNeil with an I case where the appellant was represented by counsel.

[00:21:31] Speaker 02:
Nonetheless, the board construed the submission of new evidence as an implicit request to reopen, and we think that there at the very least ought to be a remand here for the board to consider the same standard in this case.

[00:21:43] Speaker 03:
Thank you.

[00:21:44] Speaker 03:
We thank both sides for the cases submitted, and that concludes our proceedings for this morning.