[00:00:00] Speaker 03:
This is the Department of Agriculture.

[00:00:49] Speaker 03:
Mr. Jackman, please proceed.

[00:01:04] Speaker 00:
May it please the Court.

[00:01:05] Speaker 00:
My name is Norman Jackman.

[00:01:06] Speaker 00:
I represent Patrick Carey.

[00:01:08] Speaker 02:
Mr. Jackman, which specific Douglas Factor do you believe the USDA did not adequately consider, and where do you raise that in your blueberry?

[00:01:24] Speaker 00:
We failed to follow regulations, but I don't think I did raise that, Your Honor.

[00:01:34] Speaker 02:
Okay.

[00:01:36] Speaker 02:
Is there anything else?

[00:01:38] Speaker 02:
Yes, there is.

[00:01:39] Speaker 02:
Anything else as far as Douglas Factors?

[00:01:46] Speaker 00:
I don't think so.

[00:01:47] Speaker 00:
I think I just raised the fact that they didn't comply with all of the Douglas Factors, but I don't think I went beyond that.

[00:01:55] Speaker 00:
This case involved a 20-year Navy veteran, a chief petty officer, devoted his life to serving his country.

[00:02:10] Speaker 00:
And when he retired from the Navy, he obtained a job with the, I guess originally with the Department of Defense and then for the last five years of his career with the Department of Agriculture.

[00:02:23] Speaker 00:
He received a telephone call from his supervisor at one point telling him that people have told her that he was not at work when he was supposed to be.

[00:02:36] Speaker 02:
He got extraordinarily upset at that and claimed that... You say that, but in fact, doesn't the evidence indicate that his supervisor said, there may be a perception of this even though I don't think it's true?

[00:02:54] Speaker 00:
And he gets overwhelmed by that and claims, are you saying I cheated the government?

[00:03:04] Speaker 00:
And who said this anyway?

[00:03:06] Speaker 00:
And have you checked the video entrance to the building?

[00:03:12] Speaker 00:
Have you checked with the bus driver?

[00:03:14] Speaker 02:
She said she didn't believe it.

[00:03:18] Speaker 02:
Pardon me?

[00:03:18] Speaker 02:
His supervisor told him she didn't believe that he had been absent.

[00:03:22] Speaker 00:
Well, I guess one could say then why mention the subject at all.

[00:03:27] Speaker 00:
Because she was trying to counsel him, perhaps?

[00:03:30] Speaker 00:
It's conceivable.

[00:03:32] Speaker 00:
But when you get right down to it, he insists that this is not true, that there's no chance this is true, and asks her if she'd checked these things.

[00:03:44] Speaker 00:
And when she says no, she violates the agency regulations.

[00:03:47] Speaker 00:
She told him she didn't believe it.

[00:03:49] Speaker 02:
Why does she have to check it if she doesn't believe it?

[00:03:54] Speaker 00:
I didn't pick that up from the way the conversation went.

[00:03:59] Speaker 00:
It sure seems to be in the record.

[00:04:02] Speaker 00:
Has your honor listened to the tape?

[00:04:06] Speaker 00:
There is a tape recording, and I would suggest to the court it's in the agency file.

[00:04:10] Speaker 03:
Well, we have the entire transcript on pages 130.

[00:04:13] Speaker 03:
I'm looking at it right now through about 140 of the appendix.

[00:04:18] Speaker 03:
So no, I personally have not listened to the tape, but I didn't understand there to be any dispute over the characterization that, for example, Mr. Kerry was very agitated, but that Ms.

[00:04:28] Speaker 03:
Stower was calm.

[00:04:30] Speaker 03:
And I didn't understand you to be disputing the characterization.

[00:04:33] Speaker 03:
So to my knowledge, we don't have the tape or provided with the tape, but we have a transcript of it.

[00:04:37] Speaker 00:
That's good.

[00:04:40] Speaker 00:
That's good.

[00:04:40] Speaker 00:
The reaction by Mr. Kerry was one of being overwhelmed.

[00:04:48] Speaker 03:
And once he... We can't second-guess an agency's penalty decision.

[00:04:56] Speaker 03:
All we can do is assess that they comply with the Douglas Factors and then review it under a very deferential standard.

[00:05:05] Speaker 03:
So you can't stand here and try to just re-argue the same case to us because

[00:05:12] Speaker 03:
We're not a court of first impression who reconsiders the penalty de novo.

[00:05:18] Speaker 03:
So what is it about this case that you think amounted to an abuse of discretion by the agency?

[00:05:26] Speaker 03:
Because that's what you have to prove in order to prevail in this case.

[00:05:30] Speaker 00:
The abuse of discretion by the agency comes where Mr. Carey tape records the telephone conversation and basically gets fired for it.

[00:05:41] Speaker 03:
Well, he didn't just get fired for tape recording it.

[00:05:44] Speaker 03:
He also got fired, as I understand, the counts of his removal for distributing it as well, and for the comments he made in conjunction with the distribution, which were a very derogatory attack on management.

[00:06:02] Speaker 03:
And then it's also my understanding that part of the reason he was fired

[00:06:04] Speaker 03:
is because he demonstrated no remorse for having done this and insisted he would never work with this supervisor again.

[00:06:11] Speaker 03:
So my understanding that the determination to fire him as articulated by the lower tribunal in this case was not limited to the fact that he recorded it.

[00:06:21] Speaker 03:
It was not limited to the fact that he sent it out.

[00:06:23] Speaker 03:
It also included the comments he made and his subsequent absolute refusal to ever be willing to work with the supervisor again.

[00:06:31] Speaker 03:
Am I misunderstanding what was, I think, the things that were considered and discussed expressly in the opinion below?

[00:06:41] Speaker 00:
I think, no, I don't think you're misrepresenting that at all, Judge.

[00:06:44] Speaker 00:
I think that what has to be looked at is the fact that Mr. Kerry spent his lifetime serving the United States government and was so overwhelmed by what happened that he doused himself with gasoline and attempted suicide.

[00:07:00] Speaker 00:
That was avoided by somebody stopping him.

[00:07:05] Speaker 00:
But he had what was described as post-traumatic stress disorder.

[00:07:10] Speaker 00:
He had a nervous breakdown.

[00:07:12] Speaker 00:
His wife was required to answer any questions that came from the agency.

[00:07:18] Speaker 00:
His wife had a nervous condition.

[00:07:21] Speaker 00:
And in one year, seven times, she was taken by ambulance to the hospital.

[00:07:25] Speaker 00:
And on the seventh time, she died.

[00:07:28] Speaker 00:
You need to look at what the effect of the conversation was on Mr. Carey.

[00:07:35] Speaker 00:
And going one step further.

[00:07:37] Speaker 03:
But can I just ask you, didn't all of the events you just described, every single one of them, occur after the conduct that he committed in this case for which he was charged?

[00:07:49] Speaker 00:
That's true.

[00:07:50] Speaker 03:
So none of them are a mitigating explanation for what he was actually going through at the time he made this mistake in his employment.

[00:08:00] Speaker 00:
Well, yeah, those things happened after.

[00:08:03] Speaker 00:
They were the results.

[00:08:05] Speaker 03:
I mean, don't you agree with me that certainly if he was in the midst of dealing with his wife's trauma while he did this stupid thing,

[00:08:14] Speaker 03:
that agency would treat that differently.

[00:08:17] Speaker 00:
I do agree with you on that.

[00:08:18] Speaker 03:
But here, all of those things are consequences that he experienced in his life following this action.

[00:08:27] Speaker 03:
And therefore, they can't be used to necessarily go back in time and say, ah, well, boy, this guy was under a lot of stress at the time he did this.

[00:08:34] Speaker 03:
And it thus mitigated his behavior.

[00:08:38] Speaker 00:
That's true.

[00:08:39] Speaker 00:
We'd go more to damages if we ever reached that point.

[00:08:42] Speaker 00:
Let me continue, however, the regulations regarding tape recording.

[00:08:49] Speaker 00:
There isn't a slightest shred of evidence in the file that he was ever told or shown anything regarding tape recording.

[00:09:01] Speaker 00:
Most States in the United States allow one party to tape record a conversation, but the agency had a regulation specifically prohibiting it.

[00:09:11] Speaker 00:
The judge at page 18 of her opinion points out that the supervisor is supposed to give the copy or advise the person at some point in time before such a thing happens that it is prohibited by the Department of Agriculture's regulations.

[00:09:30] Speaker 00:
And there isn't the slightest shred of evidence in the file or that was ever presented that his supervisor gave him, told him, or did anything regarding

[00:09:41] Speaker 00:
not recording a conversation.

[00:09:43] Speaker 00:
And in fact, there isn't even an allegation without evidence that he ever was given the notice that he couldn't tape record.

[00:09:52] Speaker 03:
Was there evidence, for example, I know that he claimed he was not aware of it.

[00:09:58] Speaker 03:
But was there any evidence that he didn't receive it?

[00:10:01] Speaker 03:
You know, did he produce evidence that he didn't receive it?

[00:10:04] Speaker 03:
Did he question his supervisor?

[00:10:06] Speaker 03:
Did he produce evidence that other people possibly didn't receive it or were unaware of it or anything like that?

[00:10:13] Speaker 03:
No.

[00:10:14] Speaker 03:
Because he's an HR supervisor.

[00:10:16] Speaker 03:
Yes.

[00:10:17] Speaker 03:
And this is a policy of the agency that he is a supervisor for human resources in.

[00:10:23] Speaker 03:
I guess I'm questioning whether it isn't fair to impute to him the obligation of knowing the agency policies given that he is an HR supervisor and he should be the person actually probably making sure everybody knows about the policies.

[00:10:42] Speaker 00:
Here is an individual who in nearly 30 years of his life had a spotless record.

[00:10:49] Speaker 00:
If he had the slightest indication

[00:10:52] Speaker 00:
that there was anything wrong with recording it.

[00:10:55] Speaker 00:
I believe that it is clear from his whole lifetime he would not have done something that he knew was a violation of law.

[00:11:03] Speaker 03:
See, I don't, first of all, it's not a violation of law, as you pointed out.

[00:11:07] Speaker 03:
It's a violation of agency policy.

[00:11:09] Speaker 03:
So those are two different things.

[00:11:11] Speaker 03:
But I'm not certain I agree with that, given what you've articulated at his mental state at the time.

[00:11:18] Speaker 03:
And the fact that he also, he didn't just record it.

[00:11:22] Speaker 03:
He sent it.

[00:11:24] Speaker 03:
And you read the email.

[00:11:25] Speaker 03:
He went on and on in the email about how people should send it to OPM.

[00:11:30] Speaker 03:
And this is a horrible example of leadership.

[00:11:32] Speaker 03:
And then later he said, I will never work with that woman again.

[00:11:34] Speaker 03:
And he showed no remorse for any of the actions.

[00:11:38] Speaker 03:
So here you're saying, you're telling me today he wouldn't have done this if he knew it was wrong.

[00:11:43] Speaker 03:
But isn't that consistent with his own refusal to express remorse

[00:11:48] Speaker 03:
for having done any of this.

[00:11:50] Speaker 03:
At least that's what the record shows.

[00:11:52] Speaker 03:
Again, I'm not judging his credibility.

[00:11:54] Speaker 03:
I've never met the person.

[00:11:55] Speaker 03:
He didn't testify in front of me.

[00:11:57] Speaker 03:
That's why an appellate court is really limited in terms of the level of review we can give, because I just want to be clear.

[00:12:04] Speaker 03:
I'm making no personal assessment of Mr. Kerry or his credibility or anything else.

[00:12:10] Speaker 03:
We don't get to do that on appeal.

[00:12:13] Speaker 03:
We don't have the ability to do that on appeal.

[00:12:18] Speaker 02:
what he says is true, he still has tremendous problems.

[00:12:24] Speaker 02:
Because he admits he sent out that copy, I guess you could say wave copy or whatever, that electronic copy of the tape to everyone.

[00:12:35] Speaker 00:
I agree with that, Your Honor.

[00:12:37] Speaker 00:
I represented many clients in my years, and I worry about this one.

[00:12:42] Speaker 00:
I feel that he did what he thought was right.

[00:12:47] Speaker 00:
He may have been

[00:12:48] Speaker 00:
quite wrong and confused in what he did.

[00:12:51] Speaker 00:
His later actions, particularly the attempted suicide, scared me at the time, and I worry about the man.

[00:13:02] Speaker 00:
He devoted his life to his country, and this is the way he ends.

[00:13:05] Speaker 00:
It just doesn't seem to be the right outcome.

[00:13:10] Speaker 03:
So this has nothing to do with the case, but I'm going to pray for him tonight.

[00:13:14] Speaker 00:
Pardon me?

[00:13:14] Speaker 03:
This has nothing to do with the case, but I'm going to pray for him tonight.

[00:13:17] Speaker 03:
You're in your rebuttal time.

[00:13:20] Speaker 03:
Why don't we hear from the Governor?

[00:13:32] Speaker 01:
May I please support?

[00:13:33] Speaker 01:
Mr. Kerry was a human resources supervisor, and he had the obligation and responsibilities to provide guidance to nearly 2,000 federal employees, including disciplinary measures.

[00:13:44] Speaker 01:
Even before this court, he shows no contrition, no signs of remorse.

[00:13:49] Speaker 01:
He continues to argue that his actions were reasonable.

[00:13:53] Speaker 01:
The agency was well within its discretion to terminate Mr. Kerry.

[00:13:58] Speaker 03:
And unless the court has any questions, the government respectfully requests that the... Was this 20 years of spotless service taken into account in the assessment of his penalty?

[00:14:11] Speaker 01:
It was, Your Honor.

[00:14:12] Speaker 01:
It was considered as one of the Douglas Factors.

[00:14:14] Speaker 03:
He did serve his country, and what about his mental health?

[00:14:20] Speaker 03:
I'm not going to go into detail about it in open court, but there's evidence that he does have some mental health concerns.

[00:14:27] Speaker 03:
How was that, if at all, factored into the assessment of his penalty?

[00:14:32] Speaker 01:
Your Honor, first, with respect to the mental health, as counsel acknowledges here, and

[00:14:39] Speaker 01:
makes a point in his brief, the mental health was a result.

[00:14:43] Speaker 01:
They're arguing it's a result and not a cause of the behavior.

[00:14:46] Speaker 01:
And they continue to argue that his actions were reasonable.

[00:14:50] Speaker 03:
Might it have been different if it were a cause of the behavior?

[00:14:54] Speaker 03:
Maybe then it could have mitigated.

[00:14:56] Speaker 03:
If it was argued to have been a cause of the behavior, then it probably should have been considered in the context of the

[00:15:03] Speaker 01:
Your Honor, the agency did consider it in the mitigating circumstances.

[00:15:09] Speaker 01:
Yes, in the instance where it would have been a cause and not an effect, yes, the government would have considered that in analyzing that particular Douglas factor.

[00:15:19] Speaker 01:
But that is still just one of 12 Douglas factors.

[00:15:22] Speaker 01:
And given the strength and severity of the first Douglas factors, the seriousness of the offense, the ability to rehabilitate Mr. Kerry,

[00:15:31] Speaker 01:
and his position as a human resources supervisor that may not have mitigated it, even in this contest.

[00:15:38] Speaker 01:
I understand.

[00:15:38] Speaker 03:
Anything further?

[00:15:39] Speaker 03:
No.

[00:15:40] Speaker 01:
Thank you.

[00:15:40] Speaker 03:
Thank you, Your Honor.

[00:15:42] Speaker 03:
Mr. Jackman, do you have anything else you'd like to add?

[00:15:50] Speaker 00:
One thing I would like to point out in rebuttal is that progressive discipline was not followed.

[00:15:57] Speaker 00:
They went immediately to termination.

[00:16:00] Speaker 00:
their own regulations say that the purpose of the discipline is to bring a person, correct them.

[00:16:08] Speaker 00:
But they gave no consideration, at least there was nothing in the record to show they even considered progressive discipline.

[00:16:17] Speaker 00:
To somebody with a career like he had, and a record that he had, with nothing ever done wrong.

[00:16:23] Speaker 00:
I mean, this was a Navy guy who saluted the flag and

[00:16:29] Speaker 00:
He never even would have thought of doing anything wrong, and yes, he went off the deep end on this, because he thought he was being accused of cheating the United States.

[00:16:40] Speaker 00:
But progressive discipline would require a different result.

[00:16:44] Speaker 00:
I know what he said, and I appreciate what you repeated, that I will never work for this

[00:16:51] Speaker 00:
I could understand given his reaction.

[00:16:58] Speaker 00:
They could have assigned him elsewhere.

[00:17:00] Speaker 00:
But the progressive discipline is my last straw to argue here.

[00:17:04] Speaker 03:
I understand.

[00:17:05] Speaker 03:
Okay.

[00:17:05] Speaker 03:
Thank you, Mr. Jackman.

[00:17:07] Speaker 03:
Thank both counsel for their arguments.

[00:17:08] Speaker 03:
In this case, it's taken under submission by the court.