[00:00:00] Speaker 03:
We have three cases scheduled for oral argument today.

[00:00:06] Speaker 03:
And we're ready with the first, Jenkins v. MSPB 17-2193.

[00:00:13] Speaker 03:
Mr. Frumkin, you have reserved three minutes of your time for rebuttal.

[00:00:21] Speaker 03:
Is that correct?

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

[00:00:23] Speaker 03:
Okay.

[00:00:24] Speaker 03:
You may proceed when you're ready.

[00:00:30] Speaker 00:
Thank you, Your Honor.

[00:00:31] Speaker 00:
May it please the Court.

[00:00:33] Speaker 00:
Mr. Jenkins was denied MSPB jurisdiction, yet all agree that but for the agency's unilateral cancellation of its final decision to remove him, the board would have had jurisdiction under 7701J and this Court's decision in Mays.

[00:00:52] Speaker 00:
But because the agency here uniquely conditioned its cancellation,

[00:00:57] Speaker 00:
upon Mr. Jenkins' retirement.

[00:00:59] Speaker 04:
What do you mean by uniquely?

[00:01:01] Speaker 04:
Isn't that a fairly common thing for an agency to say to an employee, we can have a deal here.

[00:01:10] Speaker 04:
There can be a black mark on your record.

[00:01:12] Speaker 04:
You'll go through the removal, and if you lose, there'll be a black mark on the record.

[00:01:16] Speaker 04:
But you can avoid that, get the benefit of avoiding that for future employment if you retire.

[00:01:25] Speaker 00:
Well, Your Honor,

[00:01:26] Speaker 00:
Respectfully, we believe that this particular type of conditional cancellation has never been before this court.

[00:01:33] Speaker 00:
And we have not seen it come before the board in a presidential decision.

[00:01:37] Speaker 00:
Perhaps in practice, this is something that agencies are doing.

[00:01:40] Speaker 00:
But we submit that if an agency has already issued a final removal decision and then conditionally cancels that removal decision upon an employee's retirement, there's no way around running headlong into section 7701J.

[00:01:57] Speaker 00:
Perhaps in this case.

[00:01:58] Speaker 04:
Well, why is that?

[00:02:00] Speaker 04:
I mean, I guess I took Cooper, which involves somewhat different facts, but nevertheless to say, 7701J says that the board cannot make essentially a jurisdictional determination based specifically on a removal, I mean, on a retirement.

[00:02:23] Speaker 04:
But Cooper says

[00:02:26] Speaker 04:
What happened there was it was based on the cancellation.

[00:02:30] Speaker 04:
How you got to the cancellation is essentially irrelevant.

[00:02:35] Speaker 04:
That the cancellation had something to do with the retirement is a matter for the agency, but not for the board's restriction under 7701J.

[00:02:46] Speaker 00:
Your Honor, I believe that how you get to the cancellation does matter, and it has to matter because of the express congressional intent behind 7701.

[00:02:56] Speaker 00:
We know, as this Court has articulated in Mays, that the whole purpose of 7701 is to enable an employee who was eligible to, at that time, take his earned annuity benefits and retire, to do so and still challenge his removal decision.

[00:03:13] Speaker 03:
Tell us why your situation is closer to Mays as opposed to our case in Cooper.

[00:03:20] Speaker 00:
Well, Your Honor, we believe that in every material respect, our case is identical to Mays, but for

[00:03:26] Speaker 00:
the unilateral cancellation.

[00:03:27] Speaker 00:
In Cooper, the significant difference there was that the employee was fired.

[00:03:34] Speaker 00:
He was removed.

[00:03:35] Speaker 00:
He left his job because he had to because he was fired.

[00:03:38] Speaker 00:
A long time thereafter, Mr. Cooper voluntarily applied for disability benefits, which were granted.

[00:03:45] Speaker 00:
And at some time thereafter, the agency decided to substitute its final removal decision for a grant of disability benefits.

[00:03:55] Speaker 00:
First of all, Mr. Cooper's retirement was concededly voluntary.

[00:04:00] Speaker 00:
And second of all, Mr. Cooper wasn't faced with the situation that Mr. Jenkins was, which is the very situation 7701 was designed to prevent.

[00:04:10] Speaker 00:
I am an employee, and my agency wants to fire me.

[00:04:13] Speaker 00:
In fact, in this case, the agency already has told me they fired me.

[00:04:17] Speaker 00:
I am entitled to take my retirement benefits now, when I want to, and still have the ability to challenge my removal decision.

[00:04:25] Speaker 03:
Whatever the government's motive here, perhaps, as you suggest, Judge Toronto, the government was trying... What if the decision to fire is canceled before your retirement and all mention of the matter is removed from the record?

[00:04:41] Speaker 00:
Your Honor, we believe that if there is a connection between the employee's decision to retire and the agency's cancellation of the removal decision,

[00:04:53] Speaker 00:
that has implications for 7701.

[00:04:56] Speaker 00:
This court in Mays has already said that the timing of the retirement with respect to either before a removal or after a removal is of no moment.

[00:05:06] Speaker 00:
7701 applies in either event.

[00:05:09] Speaker 03:
It's... So in this case, the administrative law judge did consider Mays versus Cooper and made a decision.

[00:05:17] Speaker 03:
I'd like for you to look at that decision and tell me exactly in your view

[00:05:23] Speaker 03:
what the error is?

[00:05:25] Speaker 00:
Well, Your Honor, the error we submit is twofold.

[00:05:28] Speaker 00:
First of all, as we believe the government concedes, the judge erred by misinterpreting Mays to prohibit an employee's ability from retiring before the effective date of a removal and deciding that it was the effective date of a removal that can strip the board of jurisdiction.

[00:05:49] Speaker 00:
The government agrees with us that

[00:05:51] Speaker 00:
Mays squarely held that it's not the effective date of a removal that matters, as long as there's been a finally issued removal decision.

[00:05:58] Speaker 00:
So where does that leave us?

[00:06:00] Speaker 00:
Effectively, we believe the administrative judge looked at Mays and looked at Cooper and decided that Cooper controlled.

[00:06:09] Speaker 00:
There's not a lot of analysis on this point in the decision below, but we submit a somewhat novel issue of law.

[00:06:18] Speaker 00:
whether or not Cooper applies has to be governed in our view by the very purpose of 7701.

[00:06:24] Speaker 00:
So an employee like Mr. Jenkins, who has worked for long enough to have earned the ability to immediately retire and take annuity benefits when he wants, under 7701 is allowed to do that and still challenge his decision, his removal decision.

[00:06:45] Speaker 00:
And the government in this case

[00:06:46] Speaker 00:
or not they were trying to help him out by giving him a way out of a blemish on his record.

[00:06:51] Speaker 00:
The consequence of that decision was that they prevented Mr. Jenkins from doing both of those things.

[00:06:57] Speaker 00:
But he could have.

[00:06:59] Speaker 02:
Why couldn't he have contested the merits on the spot?

[00:07:01] Speaker 02:
He could have, couldn't he?

[00:07:03] Speaker 00:
You're right, Judge Wallach, that he could have.

[00:07:06] Speaker 00:
But to do that, he would have had to forfeit his right to retire at that time.

[00:07:11] Speaker 00:
And we submit that, first of all, he was coercive.

[00:07:14] Speaker 02:
He could have stood up and said, you're wrong.

[00:07:18] Speaker 00:
We believe that he was coerced and misinformed, so his ability to do that was very limited.

[00:07:23] Speaker 00:
But we also believe that a reasonable employee in his position would feel at least some pressure to retire.

[00:07:29] Speaker 04:
Kagan.

[00:07:30] Speaker 04:
Just one point.

[00:07:31] Speaker 04:
If he had delayed his retirement by two days, then, in fact, the thing would not have been canceled.

[00:07:40] Speaker 04:
The removal would have gone forward as a 75-12 appealable adverse action.

[00:07:46] Speaker 04:
And so

[00:07:47] Speaker 04:
He could have had the benefit of retirement and the benefit of having a board appeal, but without the benefit of eliminating any possibility of a black mark.

[00:07:59] Speaker 04:
So he didn't forfeit his ability to retire.

[00:08:01] Speaker 04:
He at most, he forfeited two days' worth of retirement.

[00:08:06] Speaker 00:
But, Your Honor, first of all, we believe that that choice was not a real one, that he was pressured.

[00:08:11] Speaker 04:
But that's a separate issue, right?

[00:08:13] Speaker 04:
I mean, everybody agrees that

[00:08:16] Speaker 04:
He has the right to try to prove that the retirement was essentially coerced or based on some sort of misrepresentation or by omission or commission.

[00:08:31] Speaker 04:
So that's not at issue.

[00:08:33] Speaker 04:
You're trying to get to the basically, as I understand it, the merits of the PIP ground in either of two ways.

[00:08:42] Speaker 04:
being an actual removal or there being a constructive removal through involuntary retirement.

[00:08:47] Speaker 04:
And so far, we've been talking almost entirely about the actual removal.

[00:08:52] Speaker 04:
Nobody doubts that if you could prove involuntary retirement, then you get to the merits of the PIP removal, right, and the PIP ground.

[00:09:00] Speaker 00:
That's right, Your Honor.

[00:09:01] Speaker 00:
But we believe that it's not possible.

[00:09:04] Speaker 04:
That's performance improvement plan, right, PIP.

[00:09:08] Speaker 00:
Correct.

[00:09:09] Speaker 00:
Mr. Jenkins would like to challenge the merits of his removal and he was not allowed the ability to do that.

[00:09:15] Speaker 00:
We believe that Your Honor's suggestion that Mr. Jenkins could have just waited two days or one day and retired after the fact of his removal and then he could have had his cake and eaten it too is not a valid reason to deny the application of 7701 because Mays directly held that 7701 applies whether or not an employee retires before

[00:09:39] Speaker 00:
or after their removal.

[00:09:41] Speaker 04:
Right.

[00:09:42] Speaker 04:
But then Cooper came back and said, if the removal has been canceled, 7701-J doesn't apply anymore.

[00:09:53] Speaker 00:
Cooper came after Mays and said, in the event of a cancellation, as presented in that case, 7701 was not a problem.

[00:10:03] Speaker 00:
But Cooper also specifically took pains to note why that was not a problem.

[00:10:08] Speaker 00:
Part of the reason that it was not a problem was that Mr. Cooper voluntarily retired.

[00:10:14] Speaker 00:
And the retirement and the subsequent cancellation of the removal decision were unconnected.

[00:10:20] Speaker 00:
So the board had no problem in saying, we're not going to consider the fact of his retirement in denying jurisdiction here.

[00:10:26] Speaker 00:
We're just going to consider that the decision was canceled.

[00:10:30] Speaker 00:
And the board was able to do that separately.

[00:10:33] Speaker 00:
In this case,

[00:10:34] Speaker 00:
Not only did the board explicitly consider the status of Mr. Jenkins' retirement on page six of the initial decision in an express violation of the statute, but we believe that the board was forced to do that.

[00:10:46] Speaker 00:
The primary piece of evidence in this case to suggest that Mr. Jenkins' removal decision was canceled is the letter, what we refer to as the letter in our briefs, the letter of conditional cancellation.

[00:10:58] Speaker 00:
And if you look at that letter, all over the letter it talks about

[00:11:03] Speaker 00:
if you retire, your retirement.

[00:11:05] Speaker 02:
My problem with your argument is, in essence, any choice is coercion.

[00:11:12] Speaker 02:
If you give someone a choice to do something, and one benefits them more than the other, and they say, I'll take that choice, they can also say, I was coerced because the other choice wasn't as good, in my opinion.

[00:11:25] Speaker 00:
Well, Your Honor, we believe that this case doesn't need to be decided on the basis of coercion.

[00:11:30] Speaker 02:
I understand, but you've argued coercion all the way through this

[00:11:33] Speaker 00:
That's true, Your Honor, but coercion specifically applies to Mr. Jenkins' separate contention that his retirement was involuntary.

[00:11:41] Speaker 00:
Your Honor doesn't need to find that Mr. Jenkins was actually coerced in order to agree with us.

[00:11:46] Speaker 02:
So you're abandoning coercion?

[00:11:47] Speaker 00:
We would not certainly abandon coercion, Your Honor, but we believe that what Mr. Jenkins was really afforded the right here to do and what was denied by the board was the right to, like Ms.

[00:11:59] Speaker 00:
Mays and any other employee who's issued a final removal decision,

[00:12:02] Speaker 00:
challenge the merits of that decision.

[00:12:05] Speaker 00:
And Mr. Jenkins simply wasn't allowed the right to do that.

[00:12:08] Speaker 03:
So what happens if we agree with you?

[00:12:11] Speaker 03:
We reverse and remand?

[00:12:15] Speaker 00:
Correct, Your Honor.

[00:12:15] Speaker 00:
If you agree with us on the merits point that we have been discussing, we believe the proper recourse would be reversal remand to allow an adjudication on the merits of his removal, to allow Mr. Jenkins to present evidence and testimony related to the merits of the removal.

[00:12:31] Speaker 04:
And that's just the PIP, because he's abandoned all the discrimination issues.

[00:12:35] Speaker 04:
Otherwise, we don't have jurisdiction if he hasn't abandoned them.

[00:12:38] Speaker 00:
Correct, Your Honor.

[00:12:38] Speaker 00:
He has abandoned the discrimination issues.

[00:12:41] Speaker 03:
Okay.

[00:12:41] Speaker 03:
You're out of time.

[00:12:44] Speaker 03:
So let's hear from the other side.

[00:12:45] Speaker 03:
Thank you.

[00:12:55] Speaker 03:
Attorney Kilfoy, is that correct?

[00:12:57] Speaker 01:
Yes.

[00:13:00] Speaker 01:
In our view, this case is directly governed by the court's decision in Cooper versus Department of the Navy.

[00:13:06] Speaker 01:
As with Mr. Jenkins, an agency canceled a removal decision based on a petitioner's retirement.

[00:13:13] Speaker 01:
Although Mr. Jenkins contends that these two events were unconnected in Cooper, in fact, the reason that the agency canceled his removal there is that Mr. Cooper's disability retirement application was approved.

[00:13:26] Speaker 01:
If you look at that decision, that's the reason that they canceled it.

[00:13:30] Speaker 01:
And this Court held that when a removal decision has been canceled, 7701J is not implicated.

[00:13:38] Speaker 01:
The fact that the removal has been canceled, and rather than the petitioner's retirement status, is the basis for finding that the Board lacks jurisdiction over the appeal.

[00:13:49] Speaker 04:
How would you describe the congressional intent here?

[00:13:54] Speaker 04:
I realize there's not very much to go on, but there's, what, a sentence or a paragraph or something in the

[00:14:01] Speaker 04:
the committee report of whatever that was, 1990, that says something about the need for this provision to make sure that, I finished that sentence, make sure that what?

[00:14:16] Speaker 01:
I think if the government actually is going to fire you and you have an adverse action on your record, you have a right to appeal that regardless of your retirement status.

[00:14:27] Speaker 01:
And if you look at this court's decision in Mays at 27F3D1580, the court specifically discusses the right of someone stigmatized with an adverse action, like Ms.

[00:14:38] Speaker 01:
Mays was, to contest that regardless of whether they retire.

[00:14:42] Speaker 04:
And the stigma in your view goes away when

[00:14:45] Speaker 04:
essentially, your record is cleansed.

[00:14:48] Speaker 01:
Right.

[00:14:48] Speaker 01:
And it's undisputed that here the removal action, the removal decision for Mr. Jenkins was canceled and was not part of his official personnel file.

[00:14:58] Speaker 03:
Doesn't that give the government an upper hand in these type of cases?

[00:15:01] Speaker 03:
You fire somebody and then cancel it and put the, put the employee in a tight spot?

[00:15:08] Speaker 01:
Well, Cooper, in Cooper, this Court addressed that concern because Mr. Cooper raised it and the Court found that

[00:15:15] Speaker 01:
the remedy there would be to bring an involuntary retirement action, which Mr. Jenkins did.

[00:15:21] Speaker 03:
But how can that happen if there's another determination that the board has no jurisdiction anymore?

[00:15:28] Speaker 01:
Well, certainly someone can prove that the board has jurisdiction over an involuntary retirement.

[00:15:33] Speaker 01:
And Mr. Jenkins was afforded a five-hour hearing before an MSP.

[00:15:38] Speaker 03:
Is that what's happening here?

[00:15:41] Speaker 01:
Yes.

[00:15:41] Speaker 01:
He was given a five-hour hearing, but ultimately, the administration.

[00:15:44] Speaker 03:
So if we find in your favor, then Mr. Jenkins is out.

[00:15:49] Speaker 01:
That's right, because he's already had his involuntary retirement hearing and not prevailed.

[00:15:54] Speaker 01:
He hasn't proven by a preponderance of the evidence that his retirement was involuntary.

[00:16:00] Speaker 04:
And one of the grounds of involuntariness is this coercion ground, but put that aside.

[00:16:08] Speaker 04:
Let's focus on what's called the misinformation ground, either by omission where the omission is misleading or something affirmatively said.

[00:16:17] Speaker 04:
Can you address the colloquy on page 19 of the administrative judge's decision, which to me at least, to me at least has a little bit of the character of those drawings that if you look at one way, it looks like it was the lady in the hat and

[00:16:35] Speaker 04:
look at the other way, it looks like two wine glasses or something.

[00:16:39] Speaker 04:
I'm not quite sure what to make of this.

[00:16:41] Speaker 04:
Why does that colloquy in Appendix 19 not indicate some misunderstanding fostered by that is a false statement?

[00:16:52] Speaker 04:
I was or a misleading statement.

[00:16:54] Speaker 04:
I was told you could always go ahead and retire and fight this matter through merit systems.

[00:17:02] Speaker 04:
When your position is that

[00:17:05] Speaker 04:
with this letter, if he retired, he wasn't going to be able to fight it because the cancellation was going to go away.

[00:17:13] Speaker 01:
Well, he's not able to fight it if he retires by March 31st and the agency canceled it.

[00:17:18] Speaker 01:
As you said, if he retires with a later effective date and it's not cleared from his record, he can, in fact, retire and appeal it because that was the agency's offer, that if he retired by March 31st, which was his previous effective date.

[00:17:32] Speaker 04:
This statement doesn't make

[00:17:35] Speaker 04:
what for you is the critical distinction based on the timing of the retirement.

[00:17:41] Speaker 04:
This is a, you can retire and keep your board cause of action.

[00:17:46] Speaker 01:
Right.

[00:17:46] Speaker 01:
As an initial matter, can I just phrase that before the Merit Systems Protection Board, Mr. Jenkins' argument was not that his retirement was involuntary because he was told he could retire and appeal it to the MSPB.

[00:17:59] Speaker 01:
His argument was that his retirement was involuntary in part because he was not told that he could retire and appeal it to the MSPB.

[00:18:07] Speaker 01:
And that's appendix 365 to 66 and 437 where he's raising those arguments.

[00:18:13] Speaker 01:
At his hearing,

[00:18:14] Speaker 01:
His representative asked him if he received misinformation or disinformation from the human resources office and he testified no, he was told he could retire and appeal it to the MSPB.

[00:18:26] Speaker 01:
However, even assuming that this court is considering this new argument,

[00:18:32] Speaker 01:
Our position is that he never testified that he made his choice to retire based on a mistaken belief that he could appeal a case.

[00:18:40] Speaker 04:
No evidence of reliance on this.

[00:18:43] Speaker 01:
Right.

[00:18:43] Speaker 01:
There's no evidence that he held that belief at the time that he chose to retire or that he relied on it in making that decision to retire.

[00:18:51] Speaker 01:
And in fact, if you look at his MSPB appeal form at APPX 33, he's checking involuntary retirement as the basis for his appeal, not removal.

[00:19:01] Speaker 04:
This is appendix what page you said?

[00:19:03] Speaker 01:
30, I believe 33.

[00:19:06] Speaker 01:
I'm sorry, it's 30, yeah, 33.

[00:19:18] Speaker 04:
where he checks the box.

[00:19:20] Speaker 04:
Is this him?

[00:19:21] Speaker 04:
He filled out this form?

[00:19:22] Speaker 04:
Is that right?

[00:19:24] Speaker 01:
I believe so.

[00:19:27] Speaker 01:
At the time, he didn't have his representative yet at the time.

[00:19:30] Speaker 01:
So, yes, I would believe he filled it out.

[00:19:32] Speaker 04:
I'm sorry.

[00:19:32] Speaker 04:
And what are you pointing to on this?

[00:19:35] Speaker 01:
At APPX 33.

[00:19:36] Speaker 04:
The involuntary retirement box?

[00:19:39] Speaker 04:
Right.

[00:19:40] Speaker 03:
Are you sure he filled this out?

[00:19:43] Speaker 01:
I have no reason to believe that anyone else would have seen it at the time.

[00:19:46] Speaker 03:
It's not something the government would have filled out.

[00:19:49] Speaker 01:
No, the government doesn't fill out your MSP appeal form for you, but I don't know.

[00:19:53] Speaker 01:
I think Mr. Jenkins would have to speak to whether he personally did, but I have no reason to believe it would be anyone.

[00:19:59] Speaker 04:
And so what is the point you're making about

[00:20:02] Speaker 01:
that he's checking involuntary retirement rather than appealing a removal action.

[00:20:07] Speaker 01:
And if you look at APPX 455, which is the summary of pre-hearing conference before the MSPB, there he agrees, according to the administrative judge's notation, that he's only appealing his involuntary retirement and not attempting to appeal his removal for performance.

[00:20:27] Speaker 04:
Right.

[00:20:27] Speaker 04:
But are you relying on this to indicate

[00:20:30] Speaker 04:
evidence of his state of mind back at the time of in March 2012?

[00:20:36] Speaker 04:
Because this is three and a half years later.

[00:20:38] Speaker 01:
The fact that he didn't try to do what we would say shows that he didn't, but we would also say that it's not the MSPB's burden to disprove that.

[00:20:48] Speaker 01:
He held a mistaken belief and retired in reliance based on that.

[00:20:52] Speaker 01:
It's Mr. Jenkins's burden to prove by perfundant evidence that his retirement was involuntary.

[00:20:57] Speaker 01:
And he didn't present any evidence that he held this mistaken belief at the time or that he relied on it in making his decision to retire.

[00:21:14] Speaker 01:
Finally, I'd just like to address the

[00:21:17] Speaker 01:
argument that Mr. Jenkins' retirement was coerced based on the cancellation notice.

[00:21:23] Speaker 01:
At the time he received this notice, he had already submitted his retirement application.

[00:21:29] Speaker 01:
That's at APPX 37.

[00:21:31] Speaker 01:
He submitted it after he received the proposal notice.

[00:21:36] Speaker 04:
And... This is, like, February 23rd or something?

[00:21:37] Speaker 01:
Yes.

[00:21:38] Speaker 01:
That's right.

[00:21:39] Speaker 01:
And the only evidence in the record based on the, about the Army's motivation was that this was done to allow him to retire without an adverse action on his record, which is consistent with evidence in the record about other steps that the Army took to try to help Mr. Jenkins to avoid a removal, such as offering him a non-supervisory position at the same grade and rate of pay prior to even proposing his removal, an offer that he did not accept.

[00:22:10] Speaker 03:
Okay.

[00:22:12] Speaker 01:
If there is no other questions, I can answer.

[00:22:16] Speaker 03:
No, that's fine.

[00:22:16] Speaker 03:
Thank you very much.

[00:22:17] Speaker 01:
Thank you.

[00:22:21] Speaker 03:
Mr. Frumkin, you have two minutes and 46 seconds.

[00:22:28] Speaker 00:
Thank you, Your Honor.

[00:22:29] Speaker 02:
In the red brief, the government says,

[00:22:33] Speaker 02:
Mr. Jenkins argues that a notation on his final SF-50 that his reason for retirement was to obtain, quote, to obtain retirement benefits proves that the agency knew that he misunderstood the effect that a removal would have had on his retirement benefits.

[00:22:50] Speaker 02:
Why wasn't that raised below?

[00:22:51] Speaker 02:
Or was it?

[00:22:54] Speaker 00:
Well, Your Honor, Mr. Jenkins below was consistently told by the government that his only argument was to allege involuntary removal.

[00:23:04] Speaker 00:
So first to a lot of... He was consistently told by whom?

[00:23:08] Speaker 00:
The government's position the entire time was that it was not available to Mr. Jenkins to challenge the merits of the removal itself.

[00:23:14] Speaker 00:
So he was limited to involuntary retirement.

[00:23:19] Speaker 00:
Mr. Jenkins below was represented by a non-attorney representative, and we submit that these arguments are jurisdictional in nature, and so they're not, they could not be waived at this point on appeal.

[00:23:31] Speaker 00:
I'd like to address

[00:23:34] Speaker 00:
some of the questions Your Honor Judge Toronto is asking.

[00:23:37] Speaker 00:
Mr. Jenkins might have had the ability to wait it out in this case and simply delayed his retirement by a couple of days.

[00:23:48] Speaker 00:
But we believe that aside from the fact that that would contradict the holding of Mays to make a distinction on 7701, if this court blesses this practice, there would be nothing to stop an agency from issuing

[00:24:03] Speaker 00:
lawyer drafted conditional cancellation letter, just like it did here, every time that it's issuing a final removal decision.

[00:24:10] Speaker 00:
And if it does that, an employee is faced with a choice.

[00:24:14] Speaker 00:
I can either retire or I can challenge my removal decision.

[00:24:19] Speaker 02:
But it's not a binary choice.

[00:24:22] Speaker 02:
You're saying they have an either-or, but it's not.

[00:24:26] Speaker 00:
If the conditional cancellation letter has the effect that the government would like it to have here, then it must be a binary choice.

[00:24:33] Speaker 00:
Because if the employee like Mr. Jenkins decides to retire, which he did, then the government turns around and says, no more removal.

[00:24:42] Speaker 00:
You can't challenge it any longer on the merits because it's gone.

[00:24:45] Speaker 04:
Unless he can establish involuntariness in either of the two ways that everybody agrees are legally available avenues.

[00:24:55] Speaker 00:
He could still, as he did here, assert involuntary retirement.

[00:24:58] Speaker 00:
we believe that the two are not equivalent.

[00:25:01] Speaker 00:
Even though ultimately the relief he gets might be the same, Mr. Jenkins to prevail on involuntary retirement, as the court well knows, has to overcome an adverse presumption of voluntariness.

[00:25:11] Speaker 00:
That's very different from simply challenging the decision on the merits in which Mr. Jenkins would not have to face that extra jurisdictional hurdle.

[00:25:19] Speaker 03:
Do you want to conclude?

[00:25:21] Speaker 00:
We appreciate Your Honor's time.

[00:25:22] Speaker 00:
We would request that

[00:25:24] Speaker 00:
the Board decision be vacated and remanded for a proper adjudication on the merits.

[00:25:30] Speaker 03:
Thank you.