[00:00:00] Speaker ?:
No.

[00:00:35] Speaker 04:
Next case is Justin Grimsrud versus the Department of Transportation 2017-1737.

[00:00:43] Speaker 00:
That is final.

[00:00:47] Speaker 00:
When you are ready.

[00:01:01] Speaker 00:
May I please report?

[00:01:01] Speaker 00:
Good morning.

[00:01:03] Speaker 00:
We're here on an employment case that was based on a non-final decision from the MSPB.

[00:01:11] Speaker 00:
The board was unable to come to a full 3-3 decision.

[00:01:15] Speaker 00:
So the initial decision from the AJ became the final decision.

[00:01:20] Speaker 00:
Now, typically, it's going to be pretty similar to the analysis that we would have if it was a final decision or an initial decision.

[00:01:31] Speaker 00:
In between the initial decision and the final decision, a case called Forte versus the D came out, and it'd be, I would say that it was probably 99% similar to the case that we have here.

[00:01:44] Speaker 00:
However, it was never analyzed because the initial decision became the final decision.

[00:01:48] Speaker 04:
But counsel, this was all facts that you argued.

[00:01:52] Speaker 04:
40 pages of facts about the handling of the sample, and we give deference to the administrative judge.

[00:02:01] Speaker 04:
So we're not hearing witnesses?

[00:02:04] Speaker 00:
Well, Your Honor, it's about whether or not they took and gave the sufficient evidence to every weight to the mitigated factors.

[00:02:11] Speaker 00:
Under Forte, such as the hair follicle test, which they, in the agency's reply brief, they said didn't matter.

[00:02:18] Speaker 00:
It's not true.

[00:02:18] Speaker 00:
Under Forte, it does matter.

[00:02:19] Speaker 00:
They can give the weight.

[00:02:21] Speaker 00:
There's a negative drug test the day after.

[00:02:23] Speaker 00:
There's the blood test a week later.

[00:02:26] Speaker 00:
There's the polygraph.

[00:02:29] Speaker 04:
given no difference because... But these are all factual issues.

[00:02:33] Speaker 00:
But they're all part of how you rebut a positive drug test finding.

[00:02:37] Speaker 00:
So the real question that is in front of the court today is, is there any way to possibly rebut a positive drug test?

[00:02:43] Speaker 00:
And if so, how much does it take?

[00:02:45] Speaker 00:
And here, just like in Forte, we've given every single solitary way that he could possibly show, other than going back in time and taking the drug test sample

[00:02:56] Speaker 00:
We still don't know what happened to it, because Malone, who was the collector, doesn't recall what happened.

[00:03:04] Speaker 00:
So true, there is no smoking gun here in terms of somebody saw him switch the samples out.

[00:03:10] Speaker 00:
That doesn't exist.

[00:03:11] Speaker 00:
But other than that, beyond that, is that what it takes to prove that a drug test shouldn't have been positive?

[00:03:17] Speaker 00:
Is that what it takes to prove there has to be someone watching the collector on camera to show that he switched the sample out?

[00:03:23] Speaker 00:
We have no idea what happened, because the collector

[00:03:25] Speaker 00:
did not recall and the sample was never given to us because the agency lost it.

[00:03:28] Speaker 03:
Well, there were some conflicts in the testimony.

[00:03:31] Speaker 03:
The AJ did make a finding, for example, on the question of whether Mr. Grimsrud was observed giving the sample.

[00:03:42] Speaker 03:
Mr. Grimsrud, as I recall, said he wasn't observed, whereas Mr. Malone said he did observe him.

[00:03:48] Speaker 00:
Mr. Malone testified that he didn't recall, but he had in the past always done it.

[00:03:54] Speaker 00:
That was the difference.

[00:03:54] Speaker 00:
And that was what some people tried to distinguish in our brief was between what constitutes substantial evidence versus not.

[00:04:01] Speaker 03:
Let me ask you one question, Counselor.

[00:04:05] Speaker 03:
Sure.

[00:04:06] Speaker 03:
The main focus of your brief is on the challenge to the collection of the sample.

[00:04:13] Speaker 00:
That's the main focus of the... I would say the main focus is the fact that they didn't analyze it under Forte because we gave them plenty of evidence.

[00:04:20] Speaker 03:
That's the sample.

[00:04:21] Speaker 03:
That's the whole sample issue.

[00:04:23] Speaker 03:
But the question is, let's assume for the example, and this is just hypothetically, let's assume one were to conclude that the decision of the board, which is what we have in this case, with respect to the collection of the sample and so forth, is all in order.

[00:04:42] Speaker 03:
And we reject all of your argument, except we were to conclude that there was a problem with the issue of whether the deciding official, Mr. Golden,

[00:04:53] Speaker 03:
knew he could mitigate the penalty.

[00:04:55] Speaker 03:
What would be the remedy there?

[00:04:57] Speaker 00:
Well, Your Honor, I think what we would have to do is allow the petitioner to come back to his job and get him on a last chance agreement, which he was given technically in an NOPR.

[00:05:07] Speaker 00:
However, they... Why would that be?

[00:05:10] Speaker 03:
Wouldn't it just be that you would have to decide?

[00:05:12] Speaker 03:
I mean, the question would be, OK, everything else would stand in the case, except one would be saying, Mr. Golden,

[00:05:21] Speaker 03:
didn't realize he could mitigate the penalty.

[00:05:24] Speaker 03:
Correct.

[00:05:24] Speaker 03:
OK.

[00:05:25] Speaker 03:
So wouldn't the result at that point be to send it back to the agency for a determination on that issue?

[00:05:35] Speaker 03:
In other words, to the deciding official.

[00:05:38] Speaker 03:
Isn't that logically what you would do?

[00:05:40] Speaker 00:
Right.

[00:05:41] Speaker 00:
But exactly.

[00:05:41] Speaker 00:
That's exactly true.

[00:05:42] Speaker 00:
And that would go back to the NOPR.

[00:05:45] Speaker 00:
OK.

[00:05:45] Speaker 00:
I'm sorry, who?

[00:05:46] Speaker 00:
The Notice of Proposed Removal.

[00:05:48] Speaker 00:
Yeah.

[00:05:48] Speaker 00:
Because the Notice of Proposed Removal had a quote unquote

[00:05:51] Speaker 00:
last chance agreement in it, but it wasn't fully explained.

[00:05:54] Speaker 00:
It wasn't there properly.

[00:05:55] Speaker 00:
And the reason that my client did not accept that or understand what was going on was because it hadn't been proven yet.

[00:06:01] Speaker 04:
So if you guys proved it.

[00:06:02] Speaker 04:
You hardly argued the point that Judge Schall is making.

[00:06:07] Speaker 04:
You didn't get to it until page 41, and you devoted one page to it.

[00:06:12] Speaker 04:
And that's pretty close to a waiver of that argument, isn't it?

[00:06:16] Speaker 00:
In terms of the last chance agreement, Your Honor?

[00:06:18] Speaker 04:
The question whether the decider knew he could mitigate the penalty.

[00:06:24] Speaker 04:
Well, it's not such... It didn't seem to be an issue that you were significantly raising.

[00:06:30] Speaker 00:
It is a significant issue, and it goes directly to Judge Schall's point, which is, what happens if you guys say that it was all good?

[00:06:38] Speaker 00:
It goes back down to the deciding official.

[00:06:39] Speaker 04:
Well, not you guys.

[00:06:41] Speaker 00:
Yes, sir.

[00:06:42] Speaker 04:
For the United States court.

[00:06:43] Speaker 04:
Yes, sir.

[00:06:44] Speaker 00:
I apologize.

[00:06:44] Speaker 03:
No, my question was, Mr. Civil, if we were to decide that everything was fine in this case, except the fact that the deciding official, Mr. Golden, who was also the proposing official, didn't realize, and this is based on that colloquy that's quoted from the deposition, he didn't know he could mitigate the penalty, okay?

[00:07:08] Speaker 03:
Now, that's separate from this last chance agreement.

[00:07:11] Speaker 03:
I mean, Mr. Grimswood chose not to

[00:07:14] Speaker 03:
pursue that.

[00:07:15] Speaker 03:
So wouldn't the only question be, we send it back to Mr. Golden and say, all right, do you want to mitigate?

[00:07:23] Speaker 03:
Decide whether you're going to mitigate.

[00:07:24] Speaker 00:
Correct.

[00:07:25] Speaker 00:
What I was getting to, Your Honor, was that instead of getting to that point, I was thinking perhaps we could get to, would they offer him an actual last chance?

[00:07:32] Speaker 00:
Now that the court has proven or disproven the actual underlying facts, the reason why he didn't accept that in the beginning, which is a mitigation we know under the MSPB, if he would have accepted it at the time,

[00:07:44] Speaker 00:
all of this would have been, uh, yeah.

[00:07:47] Speaker 00:
But that's kind of water over the dam now.

[00:07:50] Speaker 00:
But if you're sending it back, isn't the water over the dam the exact same situation?

[00:07:53] Speaker 03:
Well, no, the only thing that would change is the only thing that we would be redoing is Mr. Golden, if he is still in the agency, deciding whether or not he wants to mitigate the penalty of removal.

[00:08:10] Speaker 03:
He's in the situation where Mr. Grimswood said, I don't want to

[00:08:14] Speaker 03:
go through the last chance process.

[00:08:17] Speaker 03:
And Mr. Golden would then have to decide, OK, I now have to decide if I want to mitigate.

[00:08:23] Speaker 03:
Would that be the logical situation?

[00:08:26] Speaker 00:
As long as we could have a last chance agreement on the table in terms of the removal, final removal itself, which it wasn't.

[00:08:33] Speaker 00:
It was only in the notice of proposed removal.

[00:08:36] Speaker 00:
It wasn't in the final document.

[00:08:38] Speaker 00:
So in between that interim time, the petitioner did his reply.

[00:08:44] Speaker 00:
in his oral examination, and then there was not a last chance agreement included in the final.

[00:08:50] Speaker 03:
Well, maybe Mr. Goldwyn would decide I'm going to give him a last chance agreement, or maybe he wouldn't.

[00:08:56] Speaker 03:
Sure.

[00:08:57] Speaker 03:
But the point is, isn't that the only thing that would be up for decision?

[00:09:03] Speaker 03:
Namely, is there going to be mitigation?

[00:09:07] Speaker 03:
There might not be mitigation, or there might be some kind of mitigation, or there might be a last chance agreement.

[00:09:13] Speaker 00:
Correct, Your Honor, if you decide in terms of finding that all the testing procedures were followed properly.

[00:09:18] Speaker 00:
Yes, that is correct.

[00:09:22] Speaker 00:
And I'll save my remaining time for both.

[00:09:24] Speaker 00:
There's no further questions.

[00:09:26] Speaker 04:
We will save it for you.

[00:09:31] Speaker 04:
Ms.

[00:09:31] Speaker 04:
Kershaw.

[00:09:33] Speaker 01:
Good morning.

[00:09:34] Speaker 01:
May it please the Court.

[00:09:36] Speaker 01:
The result in this case is controlled by this Court's decision in Frank versus the Department of Transportation.

[00:09:42] Speaker 01:
where the court held that a urine specimen's chain of custody must be strong enough so that on the record as a whole, it is supported by substantial evidence.

[00:09:54] Speaker 01:
Mr. Grimsrod has raised the Forte case, which was decided by the board.

[00:10:02] Speaker 01:
And in that case, the administrative judge found that there was not substantial evidence to support the agency's charge.

[00:10:11] Speaker 01:
The Forte case is this.

[00:10:12] Speaker 02:
The board relied on the hair follicle test there.

[00:10:16] Speaker 01:
Yes, that's correct.

[00:10:16] Speaker 02:
Whereas it did not rely on the, or it basically ignored the hair follicle test here.

[00:10:21] Speaker 01:
The records in the two cases are enormously different.

[00:10:26] Speaker 01:
In the Forte case, they were supporting.

[00:10:28] Speaker 02:
But is my statement right?

[00:10:31] Speaker 01:
Yes, but I want to clarify it.

[00:10:35] Speaker 01:
OK.

[00:10:35] Speaker 01:
In the Forte case, there was supporting expert testimony of the hair follicle test.

[00:10:41] Speaker 01:
to show that it had some relevance to the earlier urine specimen that was collected and tested positive.

[00:10:50] Speaker 01:
The issue in both cases is the urine specimen that is collected, and is that a proper positive result?

[00:10:58] Speaker 01:
In the Forte case, there's a hair follicle test taken approximately 30 days later.

[00:11:03] Speaker 01:
And there's a supporting expert testimony that it has relevance.

[00:11:09] Speaker 01:
to the earlier urine specimen, which is then tested for drugs.

[00:11:13] Speaker 01:
In this case, in contrast, all that was done is that the piece of paper with the hair follicle test was part of the record before the board.

[00:11:26] Speaker 01:
There is no supporting testimony that that hair follicle test

[00:11:30] Speaker 01:
has any relevance to the urine specimen, which in this case, it's approximately a 60-day span between the urine specimen being collected on March 30th and then the hair follicle test.

[00:11:47] Speaker 01:
And no supporting testimony that the hair follicle test has any relevance to whether this urine specimen was properly a positive, that it was a true positive.

[00:12:00] Speaker 02:
So the distinction is one case there was some medical examiner that said that the hair follicle test is probative and in this case there was no such testimony.

[00:12:15] Speaker 02:
That's enough?

[00:12:18] Speaker 01:
No.

[00:12:20] Speaker 01:
There's enormous differences between the two cases if you read the decision in the Forte case.

[00:12:27] Speaker 01:
In the Forte case

[00:12:28] Speaker 01:
the administrative judge is not crediting the testimony of the collector.

[00:12:35] Speaker 01:
And the board points this out, that there is an implicit credibility finding in Forte against the collector and in favor of Mr. Forte.

[00:12:46] Speaker 01:
So that's another distinction between the two records.

[00:12:51] Speaker 01:
And each case really has to be judged on the record that comes to the board.

[00:12:56] Speaker 01:
In this case,

[00:12:57] Speaker 01:
there is ample evidence in the record that shows that the chain of custody was intact.

[00:13:05] Speaker 01:
I could just go through that real briefly here.

[00:13:07] Speaker 02:
Well, you don't have to go through the whole thing, but what about the curiosity of the time entries for the collection of the sample, where Mr. Grimsrud's copy doesn't have that time entered on his copy, but the time

[00:13:27] Speaker 02:
entry is filled out in all the other copies.

[00:13:30] Speaker 01:
That's correct.

[00:13:32] Speaker 01:
It was explained, this is explained through the testimony of all the witnesses, that there's a form which has basically five sheets that are together.

[00:13:43] Speaker 02:
Right, so why isn't the logical conclusion that after Mr. Grimgerud left, Mr. Malone went into the bag, opened up the bag, pulled out the copy that he put in the bag, he took it out and started

[00:13:53] Speaker 02:
filling out that time entry along with the other copies for the time entry?

[00:13:58] Speaker 01:
The administrative judge in this case made alternative findings on that point.

[00:14:04] Speaker 01:
The evidence showed that at the time, the time is written on these custody and control forms.

[00:14:14] Speaker 01:
At that time, a lot of things are happening.

[00:14:16] Speaker 01:
At the same time, Mr. Grimsrod

[00:14:22] Speaker 01:
filling out his form, and that it may be possible that he doesn't see the collector write on his copy, the 615.

[00:14:33] Speaker 01:
It's quite possible, because of what's going on, that he doesn't see the collector write it on the form.

[00:14:39] Speaker 01:
The forms have been separated.

[00:14:41] Speaker 01:
To make it clear, there's five forms.

[00:14:44] Speaker 01:
The one on the bottom is the donor form.

[00:14:47] Speaker 01:
The one on the top is the test facility

[00:14:50] Speaker 01:
copy.

[00:14:50] Speaker 01:
That one is the one that is separated.

[00:14:53] Speaker 01:
The test facility copy is separated.

[00:14:55] Speaker 01:
The whole package goes to Mr. Grimsrod, who then proceeds to fill out.

[00:14:59] Speaker 01:
He signs his name on copy two.

[00:15:01] Speaker 01:
When he's doing that, it's quite possible he doesn't see the collector write on the first copy, the 615.

[00:15:10] Speaker 01:
Alternatively, it could have been, the judge found, it could have been, as Your Honor has just stated, that Mr.

[00:15:19] Speaker 01:
Malone, the collector, went into the bag and, after he'd already placed the form in the bag, took out the form and then wrote on it 615.

[00:15:30] Speaker 01:
But what's pointed out is at that stage of the process, the urine specimen is absolutely secure.

[00:15:40] Speaker 01:
Through the whole process of the chain of custody, the specimen is poured into these vials which are capped

[00:15:49] Speaker 01:
And then they are sealed with a tamper-evident tape that goes over the cover of the vial.

[00:15:59] Speaker 01:
And on that tape is a unique identification number.

[00:16:05] Speaker 01:
That unique identification number is also on the custody and control form.

[00:16:12] Speaker 01:
And once that tape goes over the vial,

[00:16:18] Speaker 01:
It's absolutely secure.

[00:16:20] Speaker 01:
There's uniform expert testimony in the record here and findings by the judge that this tape is tamper evident and that it had never been tampered with.

[00:16:31] Speaker 02:
Is that tape, is that where Mr. Grimsrod puts his initials on?

[00:16:36] Speaker 01:
Yes.

[00:16:37] Speaker 01:
He puts his initials on it and it has the unique number.

[00:16:44] Speaker 01:
Doesn't have his name, just his initials.

[00:16:47] Speaker 01:
And then it is dated by the collector.

[00:16:50] Speaker 01:
In this case, the testimony was that it had his initials.

[00:16:54] Speaker 01:
It is properly dated.

[00:16:56] Speaker 01:
And this is the testimony from the laboratory who receives it, who checks the vials when they arrive at the laboratory, that there has been no tampering with the vial.

[00:17:09] Speaker 01:
So all this happens before

[00:17:13] Speaker 01:
the mix-up with not getting the 615 on all of the copies of the custody and control form.

[00:17:20] Speaker 04:
Ms.

[00:17:20] Speaker 04:
Kirschner, what about the issue of whether Mr. Golden knew that he could mitigate the penalty?

[00:17:29] Speaker 01:
Yes.

[00:17:29] Speaker 01:
On that question, Mr. Golden testified before the administrative judge that he did have discretion.

[00:17:37] Speaker 01:
And then he was cross-examined and showed his deposition testimony, which

[00:17:43] Speaker 01:
could be read to indicate that he didn't think he really had discretion, that he had to go ahead.

[00:17:47] Speaker 02:
That would probably be the plain language reading of the deposition, right?

[00:17:52] Speaker 01:
Well, I think you could read it either way.

[00:17:54] Speaker 01:
He's saying that he thinks it's the secretary's decision.

[00:17:58] Speaker 01:
But what he's saying also in his deposition is he didn't know whether the question referred to the proposal or to the final decision.

[00:18:07] Speaker 01:
And for the proposal.

[00:18:09] Speaker 02:
But getting to the point of what

[00:18:12] Speaker 02:
Did Mr. Golden believe were his options for discipline?

[00:18:18] Speaker 02:
I mean, does the government, what were the options at that point, aside from removal?

[00:18:26] Speaker 01:
At the time of the proposal, just so I make sure I understand your question as to the timing, at the time of the proposal, he considers the table of penalties.

[00:18:37] Speaker 01:
He considers all of the evidence that comes to him.

[00:18:41] Speaker 01:
And based on everything that he had in front of him, including all of the guidelines and the evidence.

[00:18:47] Speaker 02:
What does the table of penalties say for a positive drug test?

[00:18:54] Speaker 01:
That for someone in a position like him, which is a safety-related position, that normally it is removal.

[00:19:03] Speaker 02:
It just says removal.

[00:19:05] Speaker 01:
Yes, but then also you can offer, as was done in this case,

[00:19:10] Speaker 01:
you can offer the possibility of a rehabilitation plan.

[00:19:14] Speaker 01:
But that is the employee's choice.

[00:19:17] Speaker 01:
And that is exactly what Mr. Golden did at the time of the proposal.

[00:19:22] Speaker 01:
Is there anything like suspension or anything like that?

[00:19:25] Speaker 01:
No, not for someone in his position.

[00:19:29] Speaker 01:
Now, it also says in the table of penalties that you do have discretion.

[00:19:35] Speaker 01:
So perhaps, depending upon the evidence,

[00:19:38] Speaker 01:
There might be another case.

[00:19:39] Speaker 01:
If it was evidence that, I know it's hard to imagine, but if somebody was somehow drugged and they took or ingested something that had the cocaine in it and they ended up getting it that way.

[00:20:00] Speaker 01:
If that were the facts of the case, that's clearly a different case.

[00:20:04] Speaker 02:
Well, then there would be no discipline, right?

[00:20:07] Speaker 02:
Excuse me?

[00:20:08] Speaker 02:
Then there would be no discipline if that's what the evidence revealed.

[00:20:12] Speaker 01:
Right.

[00:20:12] Speaker 01:
In fact, there is a board case to that effect.

[00:20:15] Speaker 01:
I'm not sure if it's cited in any brief, but it's the McNeil case where an employee, his cigar was tampered with by his wife.

[00:20:27] Speaker 02:
Right.

[00:20:27] Speaker 02:
So I've been trying to articulate what kind of mitigation is actually an option that would be considered by a deciding official for a positive drug test.

[00:20:36] Speaker 02:
other than the person being drugged.

[00:20:37] Speaker 02:
It sounds like maybe there isn't one other than removal.

[00:20:44] Speaker 01:
Again, it depends on the nature of the job here.

[00:20:47] Speaker 01:
This is a safety-related position.

[00:20:49] Speaker 01:
So for this type of position, in the normal case, someone would be proposed for removal and offered the alternative of a rehabilitation plan.

[00:21:01] Speaker 01:
And that is exactly what Mr. Golden did in this case.

[00:21:05] Speaker 01:
Then he also testified as to his decision-making on the final decision, the decision as to what finally should be done.

[00:21:17] Speaker 01:
And he testified that he considered the response that was tendered by Mr. Grimsrod, all of the evidence that Mr. Grimsrod provided, including the other testing, and he

[00:21:33] Speaker 01:
considered all of that, but then concluded based on the safety nature of the position and the fact that they had offered the rehabilitation plan, but it had not been accepted that he should be removed.

[00:21:48] Speaker 03:
So Mr. Kushner, let me ask you.

[00:21:49] Speaker 03:
So you're saying at the time he was wearing his deciding officials hat, you're saying the record reflects granted what we have in the deposition testimony, but the record reflects that he

[00:22:04] Speaker 03:
knew he had discretion?

[00:22:05] Speaker 01:
Yes.

[00:22:05] Speaker 03:
And what do you point to to support that in the record?

[00:22:09] Speaker 01:
He testified that he knew he had discretion.

[00:22:12] Speaker 03:
This is at 1124 to 1125.

[00:22:18] Speaker 03:
So he said, I recall the testimony

[00:22:26] Speaker 03:
referring to the deposition testimony.

[00:22:28] Speaker 03:
And quite frankly, I recall being confused at that point.

[00:22:31] Speaker 03:
Subsequently to that, I had been preparing for this, making sure I do the right thing.

[00:22:35] Speaker 03:
And there was one at the times that I looked into, and there is discretion.

[00:22:41] Speaker 03:
So is that what you're pointing to?

[00:22:46] Speaker 01:
He also testified earlier on direct examination that he had discretion.

[00:22:52] Speaker 01:
And he went in that he had reviewed the package.

[00:22:55] Speaker 03:
And did he knew it at the time?

[00:22:56] Speaker 03:
I mean, the key is, did he know at the time that he was deciding on the penalty that he had discretion?

[00:23:08] Speaker 01:
OK, I just want to see whether I can.

[00:23:13] Speaker 03:
I mean, certainly the record reflects that at the time of the hearing before the AJ, he recognized that he had discretion.

[00:23:21] Speaker 01:
He said, I did have discretion.

[00:23:23] Speaker 01:
That's on page 1124.

[00:23:33] Speaker 01:
And then earlier in direct testimony, he said also that he had discretion.

[00:23:38] Speaker 03:
But he also went through... Was he saying he knew he had discretion at the time?

[00:23:44] Speaker 03:
That's the key thing.

[00:23:45] Speaker 01:
Yes, I understand.

[00:23:48] Speaker 01:
administrative judge heard the testimony.

[00:23:51] Speaker 01:
Also on direct, he testified that he had discretion.

[00:23:54] Speaker 01:
But he also testified as to how he went through the response.

[00:24:01] Speaker 01:
And he considered... Let me ask you one thing.

[00:24:03] Speaker 03:
If for the moment... I just want to pick up on the questions I asked Mr. Silverfield.

[00:24:08] Speaker 03:
If for the moment one were to say, okay, everything stands in this case except for one thing, the deciding official didn't

[00:24:18] Speaker 03:
know he had the right to exercise discretion, what would be the proper result in that situation?

[00:24:25] Speaker 03:
We affirm everything else, but you have a problem with that.

[00:24:30] Speaker 01:
One alternative then is for the court to remand it to the board, who then remands it to the agency.

[00:24:36] Speaker 01:
And then the deciding official, if Mr. Bolden isn't there, then it's somebody else who would be the deciding official.

[00:24:43] Speaker 01:
And they would go through the whole process again.

[00:24:45] Speaker 03:
and would sit there and just, well, the only thing, not the whole process, the only thing would be deciding on the penalty.

[00:24:52] Speaker 03:
Whether the deciding official, whether it's Mr. Golden or someone else, would then sit there and say, okay, am I going to mitigate?

[00:25:01] Speaker 03:
Right?

[00:25:02] Speaker 01:
Right, right.

[00:25:07] Speaker 01:
But again, here the administrative judge heard the testimony of Mr.

[00:25:12] Speaker 01:
of Golden face-to-face and did credit his testimony when he indicated that he had discretion and also that he went through the entire response from Mr. Goldman and he, Mr., excuse me, from Mr. Grimshaw.

[00:25:28] Speaker 01:
He went through the entire response that he had submitted and addressed every point in that response.

[00:25:35] Speaker 03:
One final, just very quick question.

[00:25:38] Speaker 03:
Was this issue raised in the

[00:25:41] Speaker 03:
raised before the AJ, and was it raised in the petition for rehearing?

[00:25:46] Speaker 03:
This mitigation question?

[00:25:48] Speaker 03:
Because we don't have those documents in the appendix.

[00:25:51] Speaker 03:
I was just wondering if this was an issue before the AJ.

[00:25:55] Speaker 03:
There's this testimony we have, but was it argued?

[00:25:59] Speaker 03:
And was it argued on the petition for review?

[00:26:02] Speaker 01:
I can't say whether it was argued on the petition for review because I don't recall.

[00:26:07] Speaker 01:
But we do have that.

[00:26:08] Speaker 01:
We can supply it to the court.

[00:26:11] Speaker 01:
I do think there's precedent, though, that they do not necessarily need to raise it in the petition for review if they've raised it at the hearing itself.

[00:26:22] Speaker 01:
So I wouldn't be arguing that the failure to raise it to the board concludes the argument now.

[00:26:29] Speaker 01:
I didn't make it in our brief.

[00:26:31] Speaker 01:
I wouldn't make it now.

[00:26:33] Speaker 03:
No, that's fair enough.

[00:26:35] Speaker 03:
I just wanted to find out what you knew.

[00:26:39] Speaker 04:
Thank you, Ms.

[00:26:40] Speaker 04:
Kirshner.

[00:26:41] Speaker 04:
Mr. Silverfield has a few minutes of rebuttal time if you need it.

[00:26:50] Speaker 00:
May I please report just a brief rebuttal, specifically to Judge Schall's point.

[00:26:55] Speaker 00:
The agency states in their reply brief on page 54 that the reason that the penalty was mitigated in their view was Mr. Gold's initial offer of an FAA approved and monitored treatment and rehabilitation plan demonstrated that he had distressions.

[00:27:09] Speaker 00:
Now, the DOT orders in the case law on that from both the Federal Circuit and the MSPB makes it in the final decision of removal for offering the last chance agreement, the FAA approved TRP, not in the notice of proposed removal.

[00:27:26] Speaker 00:
So it's a little bit disingenuous to say that he had discretion because he offered it in his proposed removal rather than in his removal decision itself.

[00:27:34] Speaker 00:
It was never offered in the removal decision itself.

[00:27:36] Speaker 00:
Had he offered in the removal decision itself, then he would have properly mitigated the penalty, likely would have been accepted, and we wouldn't be in front of you guys today.

[00:27:44] Speaker 00:
In front of the court today, I apologize.

[00:27:46] Speaker 00:
So therefore, in stating what would happen if it went back down, even if he found that there was sufficient mitigation and there was a removal, a TRP should have been offered in the final decision for removal, not in the notice of a proposed removal.

[00:28:05] Speaker 04:
Anything further?

[00:28:07] Speaker 04:
Thank you, Mr. Silverfield.

[00:28:08] Speaker 04:
We'll take the case under advisement.