[00:00:00] Speaker 01:
16-22-26, Tartaglia against the Department of Veterans Affairs, Mr. Barney.

[00:00:06] Speaker 01:
Good morning, Your Honor.

[00:00:07] Speaker 00:
May it please this Court, after the dismissal of five of the six specifications under Charge 1, and the dismissal of Charges 2 and 3 against Mr. Tartaglia, the only remaining allegation against him was that on one occasion,

[00:00:27] Speaker 00:
He received a short ride from a coworker who was a subordinate in a government vehicle for eight miles down the road after this case amounts to.

[00:00:38] Speaker 00:
At the time, Mr. Tartaglia was relatively new to the area, and the coworker told him he knew some shortcuts to avoid traffic.

[00:00:45] Speaker 00:
Mr. Tartaglia accepted the ride, picked up the rental car, and dropped it back at a new price.

[00:00:53] Speaker 00:
As I said, the whole trip was eight miles one way and eight miles back.

[00:00:57] Speaker 03:
Is there a question in the record as to whether Mr. Motley, whether he volunteered to assist Mr. Tartaglia or whether Mr. Tartaglia directed him to do it?

[00:01:16] Speaker 00:
What is the state of the record on that?

[00:01:20] Speaker 00:
And I'm glad you spotted that, Your Honor.

[00:01:22] Speaker 00:
If you look back, because I had the same question, I look back, where did they come up with it?

[00:01:26] Speaker 00:
My client had ordered Officer Motley to do this.

[00:01:29] Speaker 00:
So I went back and I looked in the record and I found it.

[00:01:32] Speaker 00:
And it comes from the administrative judge at appendix page 85.

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And there, I looked at what she cites as the reference.

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She references my client's testimony.

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Then you go to appendix 74 to see my client's testimony.

[00:01:47] Speaker 00:
Now, she cited my client's testimony.

[00:01:50] Speaker 00:
And if you look at page 74 up at the top, and this is an important point, Judge, I think.

[00:01:56] Speaker 00:
And so I want you to take a look at that.

[00:01:58] Speaker 03:
Yeah, no, I have it here.

[00:02:00] Speaker 00:
OK.

[00:02:01] Speaker 00:
He volunteered to drive.

[00:02:02] Speaker 03:
Lines 3 through 16.

[00:02:04] Speaker 00:
Yes, sir, exactly.

[00:02:05] Speaker 00:
He volunteered to drive me.

[00:02:07] Speaker 00:
I was still fairly new to the area.

[00:02:10] Speaker 00:
And he knew some shortcuts.

[00:02:11] Speaker 00:
He'd been around there, I think he said something like for 100 meters.

[00:02:15] Speaker 03:
I want to make sure I understand this, Mr. Bonney.

[00:02:19] Speaker 03:
You say the administrative board.

[00:02:21] Speaker 00:
Administrative judge at page 85 of the appendix.

[00:02:24] Speaker 03:
Cited?

[00:02:25] Speaker 00:
His testimony is where it came from.

[00:02:29] Speaker 00:
If you look at page 85 of the appendix, that would be in the agency's brief.

[00:02:39] Speaker 03:
Now, where is this now?

[00:02:40] Speaker 00:
Yes, it's a paragraph where you see specification five.

[00:02:43] Speaker 00:
You see the paragraph starting there, Your Honor?

[00:02:45] Speaker 00:
And if you look at the last sentence, and you have to remember, Officer Motley did not testify to my recollection of the hearing, because we had basically said, yes, my client took the ride, accepted the ride.

[00:02:59] Speaker 00:
It was improper.

[00:03:00] Speaker 00:
He did wrong.

[00:03:01] Speaker 00:
But if you look at it, the appellant admitted the specification, acknowledged that it was improper as charged, and then it says, hearing, CD, appellant's testimony.

[00:03:11] Speaker 00:
But we just read the appellant's testimony.

[00:03:13] Speaker 00:
That was not what the appellant's testimony was.

[00:03:15] Speaker 00:
It was offered to him.

[00:03:17] Speaker 04:
What doesn't that go to?

[00:03:18] Speaker 04:
What I get, the flavor I get out of that aspect, is that your client came in and said, yeah, I get it.

[00:03:27] Speaker 04:
I'm sorry.

[00:03:28] Speaker 04:
And I'll take my medicine for whatever that amounts to.

[00:03:33] Speaker 04:
And can't that just be a reference to the appellant admitted this specification and acknowledged it was improper?

[00:03:42] Speaker 00:
That's exactly what we did, Your Honor, for the outset.

[00:03:47] Speaker 00:
Are you saying that the judge's citation back to my client's testimony was... Your Honor, that's what I looked at, because it's not in the record.

[00:03:55] Speaker 00:
If you read my written response, we didn't acknowledge that.

[00:03:58] Speaker 00:
In other places in the testimony, we did not acknowledge that.

[00:04:01] Speaker 00:
It was never really acknowledged anywhere.

[00:04:03] Speaker 04:
Well, the word that's used in there is had a, not ordered, but had a subordinate.

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And we wanted to make sure we immediately, there was only one charge that was valid.

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We knew that.

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And we know that a mitigating factor is to admit when you're wrong.

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So we wanted to come forward and not really do anything but admit that as fast and as quickly as possible.

[00:04:25] Speaker 04:
So the question is, when somebody volunteers to drive you, are you having them do it?

[00:04:31] Speaker 04:
And it's arguable that it is.

[00:04:33] Speaker 00:
Judge, yeah, it is.

[00:04:35] Speaker 00:
And it's a difficult situation.

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And you can imagine somebody

[00:04:40] Speaker 00:
It was not done intentionally or maliciously.

[00:04:42] Speaker 00:
It was a bad choice by Mr. Tarkin.

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Somebody with 18 years experience.

[00:04:49] Speaker 00:
Well, at this point in time, Judge, he's 14.

[00:04:51] Speaker 00:
But yeah, 14 years plus four years.

[00:04:53] Speaker 00:
But I appreciate that, because we're going to address that in just a minute when you ask that question that I'm sure is coming.

[00:04:59] Speaker 00:
It was a bad choice.

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It was a one-time event.

[00:05:04] Speaker 00:
Do you take a 14-year veteran with four years of military service and firing for that?

[00:05:10] Speaker 00:
The thing is, he was fired for a host of violations, including six specifications.

[00:05:16] Speaker 00:
Only one specification.

[00:05:19] Speaker 00:
And not the most serious of the specifications by any stretch of the imagination.

[00:05:23] Speaker 03:
You would say the two least important specifications were this one and the one about using the wrong parking place.

[00:05:29] Speaker 00:
Yes, that was.

[00:05:30] Speaker 00:
And of course, that was dismissed.

[00:05:31] Speaker 00:
Yeah.

[00:05:32] Speaker 00:
But I mean, yes, sir.

[00:05:33] Speaker 00:
I mean, y'all been around.

[00:05:34] Speaker 00:
You know what the charges are, that they're deranges.

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You know, when you're doing things that are intentionally wrong, that are malicious,

[00:05:40] Speaker 00:
that are done to profit yourself.

[00:05:42] Speaker 00:
This was a lapse of judgment.

[00:05:44] Speaker 04:
Or to manipulate the system.

[00:05:45] Speaker 04:
And what we have left is none of those.

[00:05:50] Speaker 00:
Thank you, Judge.

[00:05:51] Speaker 00:
That's the point we're trying to make.

[00:05:53] Speaker 00:
This is a single specification.

[00:05:55] Speaker 00:
So we go right to the issue, is this reasonable to remove him?

[00:05:59] Speaker 00:
Well, let's consider, one, all the other specifications and charges were dismissed.

[00:06:04] Speaker 00:
Two, the mitigating factors, the Douglas factors.

[00:06:07] Speaker 00:
And three things, general principles of law, such as progressive discipline.

[00:06:11] Speaker 00:
Where's the progressive discipline for a first offense of a 14-year employee?

[00:06:16] Speaker 00:
Now, the first point on the reasonableness of the removal action is to note that the incident of accepting a ride occurred two and a half years before the proposal.

[00:06:28] Speaker 03:
Mr. Money, in your view, what's the importance of that?

[00:06:30] Speaker 03:
You're correct about the time gap.

[00:06:32] Speaker 03:
But what, in your view, is the significance of that?

[00:06:34] Speaker 03:
What are you using that for?

[00:06:36] Speaker 00:
Thank you, Judge.

[00:06:36] Speaker 00:
It's a great question.

[00:06:38] Speaker 00:
The potential for rehabilitation is normally shown by whether he admitted it and what the employee's work record is.

[00:06:46] Speaker 00:
Here we have, in this case, 20-20 vision over two and a half years to show my client's rehabilitated condition.

[00:06:55] Speaker 03:
So you're saying there wasn't any procedural problem in bringing the charge this late, but you're saying it establishes that after the offense for which he admitted was committed,

[00:07:05] Speaker 03:
He behaved himself, and he established a good record, so he shows rehabilitation.

[00:07:10] Speaker 00:
Exactly, Judge.

[00:07:11] Speaker 00:
Very sharp.

[00:07:13] Speaker 00:
During the more than two and a half years, let me go over that record during that two and a half years, because it's more than just what I'm trying to show you.

[00:07:20] Speaker 00:
He had not engaged in the same or similar misconduct.

[00:07:23] Speaker 00:
That's important.

[00:07:24] Speaker 00:
He did not have any other disciplinary actions that were sustained against him.

[00:07:29] Speaker 00:
He received two outstanding performance appraisals during that time frame.

[00:07:35] Speaker 00:
He earned an individual cash award, and he earned a time off award.

[00:07:40] Speaker 00:
So yes, we have that two and a half years of 2020 vision of what he did to establish a mitigating factor of rehabilitative potential.

[00:07:49] Speaker 00:
And if you want to go back before that, I was going to also address, prior to that, during his 14-year career, he had received five promotions.

[00:07:59] Speaker 00:
Five promotions in 14 years.

[00:08:01] Speaker 03:
Where exactly was he for the 14 years before he came to the medical center?

[00:08:05] Speaker 00:
He had four years at the medical center at the Hampton VA, where I live.

[00:08:10] Speaker 00:
And then before that he was in Syracuse at the VA.

[00:08:12] Speaker 00:
So he had 14 years of VA experience.

[00:08:16] Speaker 00:
The agency in its brief says, well, the board was correct.

[00:08:20] Speaker 00:
It said he had only four years at the agency.

[00:08:23] Speaker 04:
That's not what they say.

[00:08:24] Speaker 00:
Pardon me?

[00:08:25] Speaker 04:
That's not what they say.

[00:08:29] Speaker 03:
The way agencies define.

[00:08:34] Speaker 03:
If you define agency as Hampton, it's correct.

[00:08:39] Speaker 03:
If you look at agency as total time at the VA.

[00:08:42] Speaker 00:
And I quoted it as, because both of them are VA agencies, the Syracuse VA and the other one.

[00:08:48] Speaker 00:
So clearly, that's the way I took it.

[00:08:50] Speaker 00:
When the word agency comes up, that's the VA.

[00:08:53] Speaker 00:
But you're right.

[00:08:53] Speaker 00:
If it means locally, it's about four years.

[00:08:57] Speaker 00:
In addition to not properly consider Mr. Tartaglia's rehabilitated potential because of that two and a half years, the board made a clear error about the four years, and this is what Judge Wallach was getting to earlier on.

[00:09:09] Speaker 00:
He had actually 14 years of service and then another four years of military service, a total of 18 years of federal service.

[00:09:17] Speaker 00:
Why is that so significant, Mr. Bonney, is the question.

[00:09:20] Speaker 00:
The board's incorrect factual determination as to his years of service means

[00:09:25] Speaker 00:
The penalty determination in relying on Douglas factors is not supported by substantial evidence.

[00:09:31] Speaker 00:
Because the only thing in this case is a penalty determination.

[00:09:35] Speaker 00:
So is the penalty determination supported by substantial evidence?

[00:09:38] Speaker 00:
No.

[00:09:39] Speaker 00:
But why is four years more or less significant?

[00:09:44] Speaker 00:
Well, because in this particular case, this is very unique.

[00:09:48] Speaker 00:
And one of the few times I've seen it, and I've been doing this for a long, long time,

[00:09:52] Speaker 00:
Four years of service was used against him in evaluating whether to mitigate the penalty.

[00:09:59] Speaker 04:
What the board said was, we note that the appellant's tenure with the agency was only approximately four years, which somewhat tempers their significance.

[00:10:09] Speaker 00:
And that's what drove Be Crazy, when they said, it somewhat tempers his outstanding work record and lack of prior discipline.

[00:10:16] Speaker 00:
So in essence, what I'm saying is they actually turned around and used it against him.

[00:10:20] Speaker 00:
Now, if you had not done that,

[00:10:22] Speaker 00:
And like I said, substantial evidence doesn't support that.

[00:10:27] Speaker 00:
The board's erroneous belief for four years, had they factored that correctly into the Douglas Factors, what would you have had?

[00:10:34] Speaker 00:
Your Honor, I suggest you would have had a strongly number of factors that favored mitigation.

[00:10:42] Speaker 00:
And those factors would have included the facts I just told you about.

[00:10:46] Speaker 00:
You would have had five promotions in 14 years.

[00:10:49] Speaker 00:
You would have had multiple outstanding performance evaluations.

[00:10:53] Speaker 00:
You would have had numerous awards.

[00:10:56] Speaker 00:
So if you had actually looked and understood the 14 years, you would have not used it against him.

[00:11:01] Speaker 00:
But you would have said, this case does favor mitigation.

[00:11:05] Speaker 00:
And that's what the whole issue was.

[00:11:06] Speaker 00:
That's what was before the board.

[00:11:08] Speaker 00:
The sole factor was mitigation.

[00:11:12] Speaker 00:
Mr. Tartagli admitted his mistake, except in arriving a coworker, from a coworker in a government vehicle.

[00:11:18] Speaker 00:
He was wrong, but this one-time event of short duration was not willful, wasn't intentional, and was just a mistake.

[00:11:27] Speaker 00:
And it should not ruin his long, distinguished career.

[00:11:31] Speaker 00:
There could not have been a much better employee than Mr. Tartagli.

[00:11:36] Speaker 00:
His performance appraisals were outstanding.

[00:11:38] Speaker 00:
Every year, he got promoted.

[00:11:40] Speaker 00:
You know, regularly, he had awards all through, and we've attached those awards.

[00:11:46] Speaker 00:
The penalty of remover was simply not warranted.

[00:11:49] Speaker 00:
And there is substantial evidence.

[00:11:51] Speaker 00:
There is not substantial evidence supporting the board's decision.

[00:11:55] Speaker 01:
Thank you.

[00:11:56] Speaker 01:
OK.

[00:11:56] Speaker 01:
Thank you, Mr. Bonney.

[00:12:08] Speaker 04:
Let me direct you to it.

[00:12:10] Speaker 04:
Appendix 1, page 1, when it says, Tertaglia v. Department of Veteran Affairs Agency.

[00:12:21] Speaker 04:
Is that the agency?

[00:12:24] Speaker 02:
Yes, Your Honor.

[00:12:25] Speaker 04:
Okay.

[00:12:26] Speaker 04:
So at page 10, when it says, Appellant's tenure with the agency was only approximately four years, that is the agency?

[00:12:38] Speaker 02:
I'm not comfortable saying that the board specifically met the VA at large.

[00:12:46] Speaker 04:
Of course you're not comfortable saying that, because you're going to lose.

[00:12:50] Speaker 02:
No, Your Honor.

[00:12:51] Speaker 02:
OK, a couple reasons why we don't lose on that point.

[00:12:54] Speaker 02:
The issue is whether or not the mitigating factor was considered by the deciding official.

[00:12:59] Speaker 02:
Mr. Bonney represented Mr. Tartaglia?

[00:13:02] Speaker 04:
No, no, no, it is not.

[00:13:03] Speaker 04:
It's whether it was accurately considered, properly considered.

[00:13:07] Speaker 02:
Properly considered, John.

[00:13:09] Speaker 04:
And it says here, was only approximately four years which somewhat tempers their significance.

[00:13:17] Speaker 04:
That's his time with the agency.

[00:13:19] Speaker 04:
How can that possibly be interpreted as his time with one stationing

[00:13:25] Speaker 04:
at one post when he's worked for the agency for 14 years.

[00:13:29] Speaker 04:
Tell me that.

[00:13:30] Speaker 02:
Two reasons, your honor.

[00:13:31] Speaker 02:
First of all, this is the first time that he was the chief of police.

[00:13:34] Speaker 02:
This is the first time that he was a supervisor.

[00:13:36] Speaker 02:
They cited a case.

[00:13:37] Speaker 04:
That's not what this says.

[00:13:40] Speaker 04:
It says his time with the agency.

[00:13:44] Speaker 02:
That's correct, your honor.

[00:13:45] Speaker 02:
His time with the agency.

[00:13:48] Speaker 02:
I can't add language to what they say, but he was only a chief of police at

[00:13:55] Speaker 02:
this job for four years.

[00:13:56] Speaker 02:
They don't contest that.

[00:13:58] Speaker 02:
And they cited a case, Hornbuckle, where the court specifically said, or the MSPB specifically said, the mitigated value is diminished by the fact that his extensive service occurred prior to being promoted to a supervisor position.

[00:14:16] Speaker 02:
And remember, two of the reasons that this case is aggravated is that he's a chief of police and he's a supervisor.

[00:14:24] Speaker 02:
So the deciding official has discretion to determine.

[00:14:30] Speaker 04:
When you say they, you don't mean the deciding officer.

[00:14:36] Speaker 02:
I'm sorry.

[00:14:37] Speaker 02:
I never said that.

[00:14:37] Speaker 04:
You said they cited a case.

[00:14:39] Speaker 02:
Oh, I'm sorry.

[00:14:40] Speaker 02:
The opposing counsel cited the Hornbuckle case, the MSPB decision.

[00:14:42] Speaker 04:
Because what's cited here is Social Security Administration v. Carr.

[00:14:47] Speaker 02:
Oh, you're talking about the Boris decision.

[00:14:52] Speaker 02:
Yeah.

[00:14:52] Speaker 02:
You're correct.

[00:14:54] Speaker 04:
Does CAR make that distinction?

[00:14:58] Speaker 02:
No, Your Honor.

[00:14:59] Speaker 02:
But the Federal Circuit precedent says, and in Zing, the Federal Circuit said that the agency, and again, the agency has the primary discretion to manage its workforce.

[00:15:11] Speaker 02:
And it also has a discretion to weigh Douglas Factors, not just to weigh the Douglas Factors, but to determine the extent of the Douglas Factors relevance.

[00:15:22] Speaker 02:
And in zine, it says that the agency does not have to consider all of the Douglas Factors.

[00:15:29] Speaker 02:
Now, the deciding official did consider this mitigating factor.

[00:15:34] Speaker 02:
The deciding official considered how much time he had been working at this particular facility.

[00:15:42] Speaker 02:
He considered the written statement.

[00:15:45] Speaker 03:
Of course, the deciding official, though, had before him a panoply of charges that are no longer standing.

[00:15:52] Speaker 02:
And that's where this court has to follow.

[00:15:56] Speaker 02:
I mean, the seminal case on that issue is Lachance v. Devon.

[00:16:00] Speaker 03:
So I think you and Mr. Bonney would agree, Mr. Singley, we're in a Lachance situation, correct?

[00:16:05] Speaker 03:
Correct, Your Honor.

[00:16:06] Speaker 03:
And Lachance says, board may mitigate to the maximum reasonable penalty, OK?

[00:16:13] Speaker 02:
Correct, Your Honor.

[00:16:14] Speaker 03:
Now, I looked up the word mitigate.

[00:16:17] Speaker 03:
It says, means to make more

[00:16:20] Speaker 03:
uh, to make more or become less severe or intense.

[00:16:26] Speaker 03:
Okay.

[00:16:27] Speaker 03:
So mitigate means to make the penalty less severe or intense.

[00:16:32] Speaker 03:
Well, they didn't do that here.

[00:16:34] Speaker 03:
They kept it what it was.

[00:16:35] Speaker 03:
So the word mitigate itself seems to say you make the penalty less severe or less intense.

[00:16:43] Speaker 03:
That's the word we used in LaChance, but they didn't do that here.

[00:16:46] Speaker 02:
Okay, Your Honor, first of all, in LeChance, it was actually a reversible error for MSPB to mitigate lower than the maximum reasonable penalty.

[00:16:57] Speaker 02:
where the agency was silent about what it would have done otherwise.

[00:17:01] Speaker 02:
And so you have to look very closely at the procedures that are laid out in that decision.

[00:17:05] Speaker 03:
But it says mitigate.

[00:17:07] Speaker 02:
So yeah, the decision says that the MSPB does have the authority to mitigate, but then it specifically limits the amount of mitigation that the MSPB can do in reviewing the agency's decision.

[00:17:20] Speaker 03:
But how are you mitigating a penalty if you don't make it less severe?

[00:17:27] Speaker 02:
The question is whether they're allowed to mitigate below the maximum reasonable penalty, and it would have been a reversible error for the MSP to do that.

[00:17:37] Speaker 03:
So what we have to say is, what's the maximum reasonable penalty for this offense?

[00:17:42] Speaker 02:
Correct, Your Honor.

[00:17:43] Speaker 03:
Would you agree, Mr. Singley, that of all the charges that were originally brought, this one and the charge

[00:17:52] Speaker 03:
with respect to using the wrong parking place.

[00:17:55] Speaker 03:
In other words, putting his personal vehicle in a government vehicle parking spot were the two least significant charges.

[00:18:02] Speaker 02:
Absolutely not, Your Honor.

[00:18:03] Speaker 02:
If you're considering that argument, imagine walking downstairs and asking an on-duty security officer to drive you to Falls Church.

[00:18:11] Speaker 02:
And that's basically what he did in this case.

[00:18:13] Speaker 03:
And that's just in aggravation of misusing... But you don't think of all the charges that originally brought

[00:18:22] Speaker 03:
These were the two lesser charges.

[00:18:24] Speaker 03:
I would have thought the major charges were the ones about supposedly helping these two gentlemen with whom he worked, Busch Gardens, get a job, and arguably about using the flashing red light when the policeman stopped him.

[00:18:38] Speaker 03:
I mean, it would seem to me that looking at the charges, this one is less severe than the ones I just described.

[00:18:48] Speaker 02:
Two points on that, Your Honor.

[00:18:50] Speaker 02:
What this court would decide about weighing the Douglas Factors is not relevant to whether or not the deciding official had a substantial basis for making their decision.

[00:19:00] Speaker 02:
Oh, no, no.

[00:19:01] Speaker 03:
I'm just saying though, in terms of severity of charges.

[00:19:03] Speaker 02:
The deciding official spoke to that exact issue.

[00:19:06] Speaker 02:
And he said, in the initial decision for the administrative judge, the deciding official said that there were only three specifications that would have justified removal on their own.

[00:19:17] Speaker 02:
the two specifications related to the application, and then this one.

[00:19:22] Speaker 02:
And he said none of the other specifications and none of the other charges were warranted removal on their own.

[00:19:28] Speaker 02:
So you have in the administrative judge's finding, after listening to the testimony of the deciding official, a conclusive statement that from the agency's perspective, which is the only perspective that matters here, this was not the least serious charge.

[00:19:42] Speaker 02:
In fact, it was one of the most

[00:19:44] Speaker 02:
serious charges and it would have warranted removal on its own.

[00:19:47] Speaker 03:
Does it make a difference if Mr. Tartaglia directed Mr. Motley to drive him or if Mr. Motley volunteered to drive him?

[00:19:57] Speaker 02:
The reason it doesn't make a difference, Your Honor, is because he admitted to the specification.

[00:20:01] Speaker 02:
Which says instructed.

[00:20:02] Speaker 02:
Instructed.

[00:20:03] Speaker 02:
Okay.

[00:20:03] Speaker 02:
And he admitted to that.

[00:20:06] Speaker 04:
Isn't that what we call mitigating circumstances?

[00:20:11] Speaker 04:
He admitted it, but he said,

[00:20:13] Speaker 04:
he volunteered to do it.

[00:20:14] Speaker 04:
Isn't that what we call mitigating evidence?

[00:20:20] Speaker 02:
No, Your Honor, I don't think so because the specification, he's admitting that he instructed his support.

[00:20:27] Speaker 04:
He's admitting it and he's saying, look, I'm just going to plead, but I'm going to tell you what actually happened to as well.

[00:20:38] Speaker 02:
No, Your Honor.

[00:20:40] Speaker 02:
The opposing counsel just told you that the VA didn't put on testimony from the subordinate because he agreed in advance that he was going to admit to that charge.

[00:20:51] Speaker 02:
So there was no opportunity for the VA to verify any of that editorialization of the specification.

[00:21:00] Speaker 02:
He admitted to the specification, to the words in the specification, which includes he instructed a subordinate on duty status

[00:21:09] Speaker 02:
to drive him.

[00:21:09] Speaker 04:
So the VA had no opportunity to have that witness available.

[00:21:15] Speaker 02:
What's your evidence in the record that tells me that?

[00:21:17] Speaker 02:
I'm not saying he didn't have an opportunity, Your Honor.

[00:21:19] Speaker 02:
I'm saying that Mr. Motley didn't testify because he admitted to that.

[00:21:25] Speaker 04:
Where does it show that?

[00:21:27] Speaker 02:
Your Honor, that's not in the appendix that we submitted.

[00:21:30] Speaker 02:
I can pull up the pre-filing of what was filed by Mr. Bonney in advance of the MSPB hearing when they were deciding which witnesses were going to testify.

[00:21:42] Speaker 04:
I'll tell you.

[00:21:43] Speaker 04:
I expect more from the Department of Justice in making arguments.

[00:21:52] Speaker 04:
Especially this four versus 14-year interpretation

[00:21:57] Speaker 04:
doesn't seem fair to me, and I expect the DOJ to be fair.

[00:22:03] Speaker 02:
Your Honor, we represent the agency.

[00:22:05] Speaker 02:
The agency testified at the board that they would have removed him for this offense alone.

[00:22:13] Speaker 02:
And the board, twice, found that testimony to be reasonable, not beyond the tolerable bounds of reasonableness.

[00:22:22] Speaker 02:
And this court reviews

[00:22:24] Speaker 02:
the MSPB for an abuse of discretion, and its reversible error for the MSPB to mitigate below the maximum reasonable penalty.

[00:22:35] Speaker 04:
And there is... We also review for clear error, don't we?

[00:22:38] Speaker 02:
And the table of penalties says that for a first-time offense for misuse of a government vehicle... Did you hear my question?

[00:22:45] Speaker 02:
No, Your Honor, sorry.

[00:22:46] Speaker 04:
We also review for clear error, do we not?

[00:22:50] Speaker 02:
Yes, Your Honor.

[00:22:51] Speaker 02:
But there's no clear error in this case.

[00:22:54] Speaker 02:
There's no clear error in this case, because the table of penalties.

[00:22:58] Speaker 04:
Well, shut my mouth.

[00:23:05] Speaker 03:
Fine.

[00:23:05] Speaker 03:
Mr. Singer, let me ask you, if we agree with you, that's the end of the case, OK?

[00:23:09] Speaker 03:
But if we agree there was error here, we would send it back to the board for a determination of a penalty, correct, less than removal.

[00:23:19] Speaker 03:
Is that right?

[00:23:20] Speaker 02:
If you look at Deval, Your Honor, actually I think if the board is going to mitigate the penalty below removal, which is the listed range of penalties for misuse of a government vehicle, then the board has to give the agency an opportunity to reassess the penalty.

[00:23:40] Speaker 02:
But Deval says that

[00:23:43] Speaker 02:
the agency can testify to what it would do at the board hearing, and that's what it did here.

[00:23:48] Speaker 02:
I mean, the deciding official came in and said that he would have removed for that offense alone.

[00:23:54] Speaker 03:
Well, let me ask you, though, but what if it's determined?

[00:23:57] Speaker 03:
Obviously, you wouldn't urge this result.

[00:24:00] Speaker 03:
But what if it's determined that the penalty of removal here, weighing all the Douglas factors, was unreasonable?

[00:24:11] Speaker 03:
should we do at that point?

[00:24:14] Speaker 03:
What would you tell us to do?

[00:24:17] Speaker 02:
Your Honor, I guess I would say that the board should provide more analysis of actually deciding officials should have an opportunity to... Well, what if we said removal is too severe a penalty?

[00:24:39] Speaker 03:
What happens then?

[00:24:40] Speaker 02:
If removal is too severe?

[00:24:42] Speaker 03:
Yeah.

[00:24:42] Speaker 03:
If we say that applying all the Douglas Factors here, would we send it back for imposition of some penalty less than removal, right?

[00:24:52] Speaker 01:
If we were to instruct mitigation, does that then go through the board back to the agency, just with instructions to the board to remand to the agency for a lesser penalty?

[00:25:03] Speaker 02:
Your Honor, my reading of DeVaul is that the board has two options at that point.

[00:25:09] Speaker 02:
They can mitigate.

[00:25:11] Speaker 02:
I don't believe that the board has the authority to mitigate below removal in this case based on DeVaul.

[00:25:18] Speaker 02:
And so that would mean that they would have to give the agency an opportunity to reassess the penalty and specifically focus just on this specification alone.

[00:25:29] Speaker 03:
That's maybe in line, because it says

[00:25:31] Speaker 03:
In the Miguel case, Mr. Singley says, in light of our holding, this is if we found that.

[00:25:37] Speaker 03:
Miguel says, in light of our holding that the penalty imposed constitutes an abuse of discretion, it is necessary to amend the case to the board for determination by the agency of an appropriate lesser penalty.

[00:25:51] Speaker 03:
So in other words, it would go back for determination of some penalty less than removal.

[00:25:58] Speaker 03:
That's what Miguel says, right?

[00:26:00] Speaker 02:
I believe so.

[00:26:01] Speaker 02:
So the agency would get another opportunity to assess what they think that this specification alone is worth.

[00:26:10] Speaker 03:
Less than removal.

[00:26:12] Speaker 03:
That's what Miguel says, less than removal.

[00:26:15] Speaker 02:
Well, because Miguel, in that case, they found that it was so far beyond the... Well, we could find that here.

[00:26:23] Speaker 02:
You could, Your Honor, you could find that.

[00:26:24] Speaker 03:
And if we do that, it then is...

[00:26:27] Speaker 03:
back for an imposition of a penalty less than removal, correct, if we're in a Miguel situation?

[00:26:33] Speaker 02:
Correct, Your Honor.

[00:26:34] Speaker 03:
But again... And how long has he been away?

[00:26:38] Speaker 02:
I believe that this decision to remove was in 2014.

[00:26:49] Speaker 02:
So the decision was in July of 2014.

[00:26:51] Speaker 02:
So he's been away for

[00:26:53] Speaker 02:
Several years.

[00:26:53] Speaker 03:
Coming up on three years.

[00:26:54] Speaker 03:
So we're in a kind of a time-serve situation.

[00:26:57] Speaker 04:
Yes, Your Honor.

[00:27:02] Speaker 04:
OK.

[00:27:02] Speaker 04:
Well, what would his status be if we send it back for less than removal?

[00:27:08] Speaker 02:
For less than removal, Your Honor, I think at this point he would be entitled to back pay for the period of time that he's been removed.

[00:27:17] Speaker 03:
I mean, theoretically, the agency, if we did that, the agency could say, impose a suspension, a retroactive suspension.

[00:27:26] Speaker 03:
He would be suspended for 30 days.

[00:27:29] Speaker 03:
That would be taken out of his back pay.

[00:27:32] Speaker 02:
Correct.

[00:27:33] Speaker 02:
And then if this is not in the records, if he's retired, received any benefits, then some of those benefits might be subtracted from the amount of back pay that he receives.

[00:27:45] Speaker 02:
But yes, Your Honor, so the agency would have another opportunity.

[00:27:49] Speaker 02:
They could say that suspension was warranted, 30-day suspension.

[00:27:55] Speaker 01:
Any more questions?

[00:27:57] Speaker 01:
All right.

[00:27:57] Speaker 01:
Thank you, Mr. Singley.

[00:28:02] Speaker 01:
Mr. Bonney, you have the last word.

[00:28:12] Speaker 00:
You're exactly right.

[00:28:14] Speaker 00:
We were tripping over ourselves, just trying to admit that we did something wrong.

[00:28:18] Speaker 00:
We wanted that mitigating factor.

[00:28:19] Speaker 00:
We knew we had done something wrong.

[00:28:20] Speaker 00:
We were saying we didn't.

[00:28:22] Speaker 00:
Judge, shall you raise the Miguel case?

[00:28:27] Speaker 00:
And you're right.

[00:28:27] Speaker 00:
It says that, and you can remand it.

[00:28:29] Speaker 00:
The whole premise of it.

[00:28:30] Speaker 03:
In other words, we can't dictate a penalty.

[00:28:32] Speaker 03:
If we agree with your position, we can't dictate the penalty ourselves.

[00:28:36] Speaker 03:
It has to go back.

[00:28:37] Speaker 03:
But what would happen with the...

[00:28:41] Speaker 03:
Mr. Singly seems to be saying, I think he may be correct, that if we go that route, we would send it to the board to send it to the agency to determine a lesser penalty.

[00:28:52] Speaker 00:
Now, Judge, what would happen is, first of all, if you can dictate a penalty, this court has.

[00:28:55] Speaker 00:
And in this case, it seems like to me the obvious penalty is a 30-day suspension.

[00:28:59] Speaker 00:
That would be appropriate under the facts and circumstances.

[00:29:04] Speaker 00:
You can dictate the penalty.

[00:29:06] Speaker 00:
You can say, we're going to remand it back to the board, and the board will issue its own decision.

[00:29:11] Speaker 00:
after reviewing the things.

[00:29:12] Speaker 00:
They do not have to send it back.

[00:29:13] Speaker 00:
It never goes back to the agency.

[00:29:15] Speaker 00:
It would go back to the administrative judge.

[00:29:17] Speaker 00:
So it's going to stay within the judicial ranks at all times.

[00:29:20] Speaker 00:
The agency's not going to have any further input on it.

[00:29:23] Speaker 00:
But consider the length of time that he's been out.

[00:29:26] Speaker 00:
And what I think is pretty much a 30-day suspension is a considerable suspension for this misconduct.

[00:29:35] Speaker 00:
I mean, I can see myself walking out and say, hey, can I have a ride to somebody?

[00:29:39] Speaker 00:
And they give me a ride.

[00:29:41] Speaker 00:
I'm charged, and that's not what we want the government.

[00:29:44] Speaker 00:
We don't want people ordering people around.

[00:29:46] Speaker 00:
We don't want them ordering Fairfax.

[00:29:47] Speaker 00:
That wasn't the case.

[00:29:49] Speaker 00:
He's just trying to save real time because of traffic.

[00:29:51] Speaker 00:
Traffic's bad here and there.

[00:29:53] Speaker 00:
Thank you, Your Honors.

[00:29:54] Speaker 00:
I do appreciate your time.

[00:29:55] Speaker 00:
But you do have authority to issue that decision.

[00:29:57] Speaker 01:
Thank you both.

[00:29:58] Speaker 01:
The case is taken under submission.