[00:00:00] Speaker 09:
We're going to begin today about jurisdiction.

[00:00:07] Speaker 09:
So the plan here is to allot five minutes aside, certainly if there are questions and we need more time, we'll extend that.

[00:00:16] Speaker 09:
And let's see where we're left after our discussion about jurisdiction with respect to how we continue to proceed.

[00:00:23] Speaker 09:
So Miss Lee, whenever you're ready, please.

[00:00:28] Speaker 09:
And again, the question is,

[00:00:30] Speaker 09:
whether or not this was a timely filing.

[00:00:35] Speaker 04:
By order issued on Tuesday, this court has directed counsel to address the question of when the decision of an arbitrator within the meaning of 5 USC 7703.

[00:00:48] Speaker 04:
Respectfully, we submit that the arbitrator issues his or her award when he or she makes the award available to the public, to the parties, excuse me.

[00:01:00] Speaker 04:
Thus, if the arbitrator chooses to make his award available to the parties electronically, as the MSPB does with its decision, the award is issued when it is published on the internet site where such matters are published.

[00:01:15] Speaker 04:
Likewise, if the arbitrator chooses to make his or her award available to the parties as an attachment to an email message, then the award is issued

[00:01:27] Speaker 04:
when the electronic mail message becomes available to the parties.

[00:01:31] Speaker 04:
Usually, this would be instantaneously.

[00:01:34] Speaker 04:
If an arbitrator chooses to make the award available to the parties through regular mail, then the award is issued when it is delivered to the parties, as this is when it first becomes available to the parties.

[00:01:48] Speaker 09:
Well, you said, just let me make sure I have the facts right.

[00:01:51] Speaker 09:
My understanding based on matters in the record is that

[00:01:56] Speaker 09:
Mr. Lee, the attorney said that the arbitration award was dated April 20, 2015, was served by regular U.S.

[00:02:06] Speaker 09:
mail, Paren's hand postmarked April 21, 2015, and was received April 27, 2015.

[00:02:15] Speaker 09:
So your view when the clock would start to run would be?

[00:02:22] Speaker 09:
The 27th.

[00:02:23] Speaker 09:
April 27.

[00:02:24] Speaker 09:
Yes.

[00:02:26] Speaker 09:
Well, let me just start off by asking you.

[00:02:28] Speaker 09:
I mean, my understanding is Congress passed a statute in 2012 which changed for purposes of the board's filing date of receipt to date of issuance.

[00:02:40] Speaker 09:
And that applies, as I understand, with equal force and effect to arbitration awards.

[00:02:45] Speaker 09:
So given that Congress has specifically changed the date of receipt,

[00:02:51] Speaker 09:
to date of issuance, it's my understanding based on what you submitted that you would have us go back to date of receipt for purposes of arbitration awards.

[00:03:03] Speaker 04:
If the arbitrator chooses to send it by regular mail, yes, because that would be the first opportunity where the award would be available to the parties.

[00:03:11] Speaker 04:
And in response to what Congress has done,

[00:03:16] Speaker 04:
We have looked at public law 112.19, and the House and Senate reports, the Senate report was 112-155, and the House report was 112.508, part one.

[00:03:31] Speaker 04:
And neither mentions anything about changing the effective date of when an arbitration decision would be published.

[00:03:44] Speaker 04:
It only uses the word issue, but it does not define what issue actually means.

[00:03:51] Speaker 02:
Sure, but the statute used to say receipt, and now it says issue, and that same statute applies to arbitrator.

[00:03:58] Speaker 02:
So shouldn't we understand Congress to have intended something by changing from receipt to issue?

[00:04:09] Speaker 02:
It seems to me you're advocating that we apply different rules to arbitrators and to the MSPB where the statute says apply the same rule.

[00:04:20] Speaker 04:
What I'm saying is issue because the MSPB began using electronic filing.

[00:04:27] Speaker 04:
that their decisions were instantaneous versus the olden days when they used to mail a decision and it was received by the parties.

[00:04:38] Speaker 04:
But there is no requirement that an arbitrator

[00:04:42] Speaker 02:
But if that's the case, if we can think that Congress wanted different rules going forward to apply because the MSP adopted a new system and the arbitrator didn't, wouldn't we expect to see something different in the statute applying to arbitrators than to the MSPB, which is not the case?

[00:05:02] Speaker 04:
Correct.

[00:05:03] Speaker 04:
But the statute is silent also on what was intended by issue.

[00:05:07] Speaker 04:
It was a change from received to issue.

[00:05:10] Speaker 04:
But nowhere is what does issue mean is it defined.

[00:05:16] Speaker 04:
And it's still, you could have a situation where an arbitrator mails the decision and it gets lost in the mail.

[00:05:22] Speaker 04:
And 60 days later, the person has lost their opportunity to respond in 60 days because the day he signed it was not even close to, you know, the parties may not, never have gotten it.

[00:05:37] Speaker 02:
So you're saying,

[00:05:38] Speaker 02:
So I just want to clarify really quickly, before we continue on the legal issue, is there absolutely no dispute on the facts here?

[00:05:49] Speaker 02:
Because I looked at the record, and the date of mailing of the arbitrator's decision, we don't have a postmark or anything from the arbitrator.

[00:05:57] Speaker 02:
All we have is your representation.

[00:06:00] Speaker 02:
Can we rely on your representation that the arbitrator mailed the decision on the 21st?

[00:06:07] Speaker 04:
was not the attorney at the time, and I don't have a copy of what his postage was.

[00:06:13] Speaker 02:
But there's nothing else on the record.

[00:06:15] Speaker 02:
It's in the petition for review to this court file on behalf of your client.

[00:06:19] Speaker 02:
So you have no reason to second guess that 21st date.

[00:06:24] Speaker 02:
And this is very unfortunate.

[00:06:25] Speaker 02:
We've all spent a lot of time.

[00:06:26] Speaker 02:
So if there's a factual mistake here, I'd like to know about it.

[00:06:30] Speaker 02:
I don't know if the government was able to get a copy of its envelope bearing the postmark or not.

[00:06:35] Speaker 02:
We only gave them a day.

[00:06:36] Speaker 02:
But we're proceeding on the notion that this was mailed by the arbitrator on the 21st.

[00:06:42] Speaker 04:
And I have nothing to alter that belief.

[00:06:45] Speaker 09:
Can I just see if I can summarize your position on issue that even Congress used the word issued, and even though that replaced the word receipt, in their mind, under the circumstances, they're thinking of the MSPB and issuance is synonymous with the parties receiving it.

[00:07:06] Speaker 04:
Yes.

[00:07:06] Speaker 09:
Because they put it on the website and they electronically transfer it.

[00:07:11] Speaker 09:
So Congress was just changing the words but in effect they were trying to implement a system where really the issue meant receipt.

[00:07:23] Speaker 09:
It's just the electronics have changed to that effect.

[00:07:27] Speaker 09:
So what you're saying is under these circumstance when an arbitrator does not communicate with the parties electronically

[00:07:33] Speaker 09:
then we're still nobody meant to change the fact that the clock starts running when the parties get it.

[00:07:38] Speaker 04:
Correct.

[00:07:39] Speaker 04:
I could find nothing in the legislative history to indicate that.

[00:07:43] Speaker 11:
Well, that's not really your position.

[00:07:46] Speaker 11:
If I understand correctly, you're saying there's a difference between when it becomes available to the parties, which is now the rule, and when it's received.

[00:07:55] Speaker 11:
And that, for example, in the case of MSPB decisions, they become available to the parties when they're posted on the website.

[00:08:03] Speaker 11:
and they don't actually have to receive a copy of the impedance at a time to start running.

[00:08:07] Speaker 11:
That is correct.

[00:08:09] Speaker 04:
I did not mean to I did not mean to imply that it would be when they opened up the or went to the MSPB website or whatever but it is made available to the parties via the internet immediately when it's published but with an arbitration award it is not available to the public or to the parties excuse me until it arrives.

[00:08:33] Speaker 04:
And it isn't like with the MSPB, which puts it out on the internet for everyone to see, an arbitration decision is a private document at that moment.

[00:08:45] Speaker 04:
It addresses a person's lots of details about a particular person.

[00:08:51] Speaker 04:
So most likely, they will not put it on the internet for everyone to see.

[00:08:56] Speaker 04:
That is a decision made later with a decision to appeal it.

[00:09:02] Speaker 08:
Just to leave no.

[00:09:03] Speaker 08:
dangling pieces, the conclusion you arrive at is you file timely.

[00:09:10] Speaker 06:
Correct.

[00:09:11] Speaker 08:
Correct?

[00:09:11] Speaker 06:
Yes.

[00:09:12] Speaker 06:
Okay.

[00:09:13] Speaker 06:
Can I just ask, you started off by defining issue as make available to the public or parties.

[00:09:20] Speaker 06:
I'm not sure there's a difference.

[00:09:22] Speaker 06:
Is that a, I don't know, a understanding, a definition that

[00:09:28] Speaker 06:
races to a statute of regulation, federal civil rules or something?

[00:09:35] Speaker 04:
That is the definition in the Merriam-Webster's dictionary.

[00:09:39] Speaker 04:
It defines issue to include the act of publishing or officially giving out or making available.

[00:09:55] Speaker 01:
And other civil litigation, oftentimes following an arbitration, a party can seek review of the arbitrator's decision before a district court, for example.

[00:10:05] Speaker 01:
Have you looked to see whether there are any statutes in that area that might use the word issuance or issue with respect to arbitration and how that's been interpreted?

[00:10:15] Speaker 04:
No, I did not.

[00:10:16] Speaker 04:
But we only learned about this less than two days ago.

[00:10:22] Speaker 04:
If you wish us to brief, that's certainly where we will look.

[00:10:27] Speaker 09:
Okay, thank you.

[00:10:28] Speaker 09:
Why don't we hear from the government?

[00:10:36] Speaker 05:
Good morning, Your Honors.

[00:10:37] Speaker 05:
May it please the Court, with respect to the issue of when a

[00:10:46] Speaker 11:
when an arbitrator issues notice, the final... Is the government's position that the filing of the petition for review is timely or untimely?

[00:10:53] Speaker 05:
Based on the representation of the petitioner, that the envelope was postmarked on April 21st, it would not be timely.

[00:11:02] Speaker 05:
And that would be because issuance of a notice would be to take the first step in, concrete step in notifying the parties, whether that's set by sending an email or by placing it in the U.S.

[00:11:14] Speaker 05:
mail.

[00:11:14] Speaker 07:
What if they never received it?

[00:11:16] Speaker 07:
What if they never receive it in the mail?

[00:11:19] Speaker 05:
Well, that's a different question.

[00:11:22] Speaker 05:
The question is, when is the notice issued?

[00:11:28] Speaker 05:
And when Congress changed the statute in 2012, it made an intentional decision.

[00:11:36] Speaker 07:
So why is that a different question?

[00:11:41] Speaker 05:
Because the statute now runs from the date of issuance of the notice, not

[00:11:46] Speaker 05:
date of issuance of receipt.

[00:11:47] Speaker 10:
So if it's the first step toward making it available to the individual, what if MSPB took the first step of loading something up on its website, but the computer crashed and it never went public?

[00:12:04] Speaker 10:
So then it's done?

[00:12:05] Speaker 10:
It's been issued?

[00:12:06] Speaker 10:
Because they took the first step toward the issuance?

[00:12:11] Speaker 05:
No, Your Honor.

[00:12:11] Speaker 05:
What we're suggesting is that

[00:12:14] Speaker 05:
Again, normally, if it's an electronic service or electronic docketing, the date of issuance is very clear.

[00:12:22] Speaker 05:
But if there is not that opportunity, then we go back to the old days of what we would see as a certificate of service from the arbitrator in an ideal world.

[00:12:33] Speaker 05:
What the certificate of service would say, which is, on this date, I placed this award, postage prepaid.

[00:12:41] Speaker 10:
But in the old days, the date on which

[00:12:43] Speaker 10:
the certificate of service was dated wasn't the same day that it would trigger because there would have to either be a mailing lag or notice of receipt.

[00:12:56] Speaker 05:
But even with respect to other statutes, talk about issuance of the notice.

[00:13:04] Speaker 05:
And it is the date that the decision is placed in the mail.

[00:13:13] Speaker 10:
What other statutes and what other case law says that?

[00:13:19] Speaker 05:
I'm just thinking off the top of my head that, you know, decisions of the Board of Veterans' Appeals, you know, we've had cases where, you know, the date to file a notice of appeal to the Court of Appeals from Veterans' Claims, you know, we're looking at the date of issue and to the notice of the Board decision and we've had circumstances where

[00:13:43] Speaker 05:
the board has explained that its practice is to place the decision in the mail by noon on a particular day, and then that's the date of issuance of the notice.

[00:13:55] Speaker 10:
In that case, does it run from the date of judgment or the date of issuance?

[00:13:59] Speaker 10:
Is the use of the word issuance at issue?

[00:14:05] Speaker 05:
I believe it runs from the date of issuance.

[00:14:08] Speaker 08:
Ms.

[00:14:08] Speaker 08:
Nishoven, I'm not sure that you really answered Judge O'Malley's first question, which was, let's take the case of the appeal heard by the MSPB.

[00:14:22] Speaker 08:
And the MSPB decides the case and orders the technicians to put the decision up on their website.

[00:14:32] Speaker 08:
But when the technician goes to do it, the website crashes.

[00:14:38] Speaker 08:
Has that decision been issued under the statute?

[00:14:47] Speaker 05:
Again, I think this is our preliminary answer, but I think the answer would be no.

[00:14:51] Speaker 08:
It's no.

[00:14:51] Speaker 08:
In the same way that... Why is it no?

[00:14:55] Speaker 05:
Because there hasn't...

[00:14:57] Speaker 05:
The process for the parties to be able to access that has not started.

[00:15:02] Speaker 11:
But that's the problem.

[00:15:04] Speaker 11:
Your opposing counsel is saying that issuance implies public availability or availability to the parties.

[00:15:12] Speaker 11:
And with an arbitrator's decision, it doesn't become available to the parties until it's received, because there's no website the way there is for the MSPB.

[00:15:22] Speaker 07:
Arbitrator goes on vacation to lower Slobobia.

[00:15:26] Speaker 07:
and takes it with him and mails it from there.

[00:15:29] Speaker 07:
And unfortunately, the only means of transportation is by camel.

[00:15:35] Speaker 07:
Issued when they drop it in the post office?

[00:15:39] Speaker 05:
Yes.

[00:15:41] Speaker 11:
Why would that be true?

[00:15:42] Speaker 11:
Why isn't it sensible to view issuance as being public availability?

[00:15:49] Speaker 11:
The FOIA requires, in the case of the MSPB,

[00:15:53] Speaker 11:
that it place its decisions, make them publicly available in electronic form.

[00:16:00] Speaker 11:
So with respect to the MSPB, it would appear the issuance means that when they're publicly available in electronic form.

[00:16:09] Speaker 11:
And why shouldn't the same rule apply to an arbitrator so that the decision is only, quote, issued, unquote, when it's publicly available in electronic form?

[00:16:20] Speaker 05:
The statute doesn't refer to making publicly available or to receipt.

[00:16:24] Speaker 11:
The statute refers to issuance of notice, not even notice.

[00:16:27] Speaker 11:
Does it make any sense to say that something is issued when you drop it in the mailbox?

[00:16:33] Speaker 05:
Yes, it does.

[00:16:34] Speaker 08:
How about if they drop it in the wastebasket?

[00:16:36] Speaker 05:
Well, that would not be issued.

[00:16:39] Speaker 05:
And we've had cases recently in this court where, for example, the arbitrator, the date on the arbitrator's decision

[00:16:46] Speaker 05:
was a few days before it was sent.

[00:16:48] Speaker 08:
And we would concede that the date of the postmark... How about if they drop it in the post office saying there's a fire and the whole thing gets burned up?

[00:16:56] Speaker 08:
Is it issued?

[00:16:58] Speaker 05:
It has been issued.

[00:16:59] Speaker 05:
Now, we can reach the secondary questions of whether there's any remedy available to the employee or the appellant in that case.

[00:17:11] Speaker 08:
But those are... The word issue doesn't...

[00:17:15] Speaker 08:
have anything following it.

[00:17:17] Speaker 08:
It's not issued to the parties, or issued to the public, or issued to the world.

[00:17:24] Speaker 08:
It's just abstractly issued.

[00:17:27] Speaker 02:
Issues notice of the final order.

[00:17:29] Speaker 02:
When it's issued, it has a date on it, doesn't it?

[00:17:34] Speaker 05:
I mean, the Arbitrator Award has a date.

[00:17:36] Speaker 05:
And as represented by the petitioner, it is postmarked the day after.

[00:17:44] Speaker 05:
We, to answer Judge Hughes's question, we don't have a copy of the Arbitrator's Award that was provided to the agency, although to the extent that this is an issue that weighs on the court's jurisdiction, we may be able to get some information from the arbitrator about what he actually did in terms of issuing.

[00:18:07] Speaker 10:
Is there any mechanism by which an arbitrator's decision is, at least the fact of the decision,

[00:18:14] Speaker 10:
docketed or put on a publicly accessible docket or website?

[00:18:21] Speaker 05:
Not to my knowledge.

[00:18:22] Speaker 02:
Can I ask you a different factual question about how the MSPB does it work?

[00:18:27] Speaker 02:
You may not know the answer, but is the public posting of the MSPB's decision the first time the parties learn of the decision, or is it emailed separately somehow?

[00:18:45] Speaker 05:
I don't know the answer to that question.

[00:18:47] Speaker 05:
I mean, my understanding is that the board has its own docketing system, and that the decision would be placed on the docket that would be available to any e-filer or anyone who was e-filing capabilities.

[00:18:59] Speaker 02:
But the MSPB's website also includes notices of its decisions.

[00:19:04] Speaker 05:
Right.

[00:19:05] Speaker 02:
In your view, though, it wouldn't be issued if we accepted public notice as the operative date.

[00:19:14] Speaker 02:
it would still be the date, assuming these two dates are different, the date that MSPB sends its decision electronically to the parties, not the later date of when it's publicly posted on its website.

[00:19:26] Speaker 05:
Correct.

[00:19:28] Speaker 05:
Correct.

[00:19:29] Speaker 11:
You agree that issues means issues notice?

[00:19:33] Speaker 05:
That the terms of the statute say issues, it says

[00:19:40] Speaker 05:
you know, within 60 days after the arbitrator issues notice of the final order of decision.

[00:19:45] Speaker 11:
But doesn't the word notice suggest that somebody can learn about it?

[00:19:55] Speaker 05:
I think, not necessarily.

[00:19:59] Speaker 05:
Not necessarily, Your Honor.

[00:20:01] Speaker 05:
And again, we think that Congress made an intentional choice to change, to tighten

[00:20:10] Speaker 05:
the requirements not to have receipts, which would be receiving the notice, but to limit the deadline for issuance of notice.

[00:20:19] Speaker 05:
And that is something different from receiving notice.

[00:20:23] Speaker 11:
Well, your public counsel agrees with that.

[00:20:25] Speaker 11:
She says that issues notice occurs when it becomes publicly available.

[00:20:31] Speaker 11:
It doesn't have to actually be received.

[00:20:34] Speaker 11:
That's a change in the scope of the statute, isn't it?

[00:20:39] Speaker 05:
As I say, I'm not sure that arbitrator awards are publicly available, so I'm not sure that that's a useful way of looking at this problem.

[00:20:48] Speaker 11:
It's a coherent theory that's not inconsistent with the notion that the statute changed something.

[00:20:54] Speaker 11:
It changed receipt to publicly available or available to the parties.

[00:21:02] Speaker 11:
That's what would be a change, right?

[00:21:04] Speaker 05:
Respectfully, the Congress changed it from

[00:21:07] Speaker 05:
receipts to issuance of notice.

[00:21:08] Speaker 05:
Not public availability, not public notice.

[00:21:10] Speaker 11:
No, but interpreting, the point is interpreting issuance of notice to mean that it has to be publicly available or available to parties would be a change from receipt, right?

[00:21:22] Speaker 05:
That is true.

[00:21:22] Speaker 05:
And certainly to the extent that there is public notice, we would agree that that, you know, that would be sufficient, but that's not, that is not the requirement of the statute.

[00:21:30] Speaker 07:
Do we have to interpret it in light of the notions of fair play and substantial justice?

[00:21:36] Speaker 07:
How is that fair?

[00:21:39] Speaker 07:
How is it fair for you to say that they don't have to necessarily get notice?

[00:21:45] Speaker 05:
Well, in this case, they did receive notice.

[00:21:47] Speaker 05:
And even getting the notice on the date of which they claim, they still had over almost two months to file a petition for review in this court.

[00:21:59] Speaker 05:
So issues in fairness, I think, don't come into play with these facts.

[00:22:04] Speaker 07:
Do you have a response to Judge Dyke's question?

[00:22:08] Speaker 05:
The fairness here is also that the fairness is that everybody understands what the system is.

[00:22:14] Speaker 05:
If the system is that the arbitrator places the arbitrator's decision in the mail on this date, and we have a postmark for that date, then everybody understands the date from which the time to file a petition for review runs.

[00:22:27] Speaker 10:
But if the post office loses it, or there's a huge storm or something else destroys the mail, and they never get it, then under your theory,

[00:22:36] Speaker 10:
they would actually, their time to file would expire and they would never even know that there was an arbitrator's decision.

[00:22:46] Speaker 05:
Well, I think, again, we then go into questions of- Your answer is yes.

[00:22:50] Speaker 10:
If you take your theory to its logical extreme, the answer is yes, correct?

[00:22:53] Speaker 10:
Correct.

[00:22:54] Speaker 03:
Is there any information, legislative history or otherwise, on why in 2012 Congress chose to amend 7703s to change the trigger date from

[00:23:07] Speaker 03:
date of receipt to date of issuance?

[00:23:10] Speaker 05:
There's really not, Your Honor.

[00:23:14] Speaker 03:
But we have to assume it means something different.

[00:23:16] Speaker 05:
We have to assume that Congress had an intention to make it mean something different than receipt.

[00:23:22] Speaker 03:
Are there other case laws, Supreme Court or otherwise, that has construed the term issue in one of these appeal deadline type of statutes?

[00:23:33] Speaker 05:
Your Honor, I feel confident that there probably is, but I am not.

[00:23:37] Speaker 03:
I think so too.

[00:23:38] Speaker 03:
Yeah.

[00:23:39] Speaker 07:
But you're not aware of any right now.

[00:23:41] Speaker 05:
I'm not at this moment.

[00:23:41] Speaker 07:
Was there any overall context as far as legislative history goes?

[00:23:46] Speaker 07:
Was it related to electronic filing in some fashion?

[00:23:51] Speaker 05:
Again, Your Honor, there's really nothing.

[00:23:53] Speaker 05:
This change was part of the Whistle Power Protection Enhancement Act.

[00:23:58] Speaker 05:
And there's not any specific legislative history about why

[00:24:02] Speaker 05:
why that change was made.

[00:24:07] Speaker 07:
Was there any indication?

[00:24:09] Speaker 07:
I know we don't have 24 hours basically, but was there any indication in the overall discussion in the Congress about modernization, electronic filing, anything?

[00:24:23] Speaker 05:
Not to my knowledge.

[00:24:25] Speaker 09:
Thank you.

[00:24:27] Speaker 09:
Typically, you would have an opportunity to respond.

[00:24:29] Speaker 09:
I don't know if there was an additional point you want to make in response to the government.

[00:24:34] Speaker 09:
Anything else?

[00:24:35] Speaker 09:
Thank you.

[00:24:36] Speaker 09:
All right.

[00:24:37] Speaker 09:
We will take recess.

[00:24:40] Speaker 09:
Thank you.

[00:24:42] Speaker 00:
All rise.

[00:24:48] Speaker 00:
The court has directed me to advise the parties that it stands in recess.

[00:24:53] Speaker 00:
and you can expect an order from the court in due course that will provide a schedule for additional briefing on the jurisdictional issue.

[00:25:03] Speaker 00:
With that, the Honorable Court is in recess until tomorrow morning at 10 a.m.