[00:00:04] Speaker 03:
We have four argued cases this morning.

[00:00:06] Speaker 03:
The first one is number 17, 2331, Joy v. Treasury.

[00:00:12] Speaker 01:
Mr. Bregman.

[00:00:20] Speaker 01:
Good morning, Your Honors.

[00:00:21] Speaker 01:
May it please the Court.

[00:00:22] Speaker 01:
I have the honor of representing Corporal Eileen Joy in this case, who, as you know, was terminated

[00:00:32] Speaker 01:
from the Bureau of Engraving and Printing.

[00:00:35] Speaker 01:
I wanted to point out that this case at its core boils down to an issue that occurs every day in every courthouse, every trial courthouse in this country, in every docket.

[00:00:52] Speaker 01:
A police officer is making an accusation against a defendant, whether it be for a traffic violation, parking ticket,

[00:01:03] Speaker 01:
for a serious crime, and the defendant is disputing the allegations.

[00:01:10] Speaker 01:
In this particular case, the officer, my client, Corporal Joy, who had been working for the Bureau of Engraving and Printing for 16 years.

[00:01:19] Speaker 03:
Well, the problem with that scenario is that the fact-finding tribunal makes a finding

[00:01:26] Speaker 03:
Yes.

[00:01:26] Speaker 03:
Which in this case is reviewed for substantial evidence.

[00:01:30] Speaker 03:
Agreed.

[00:01:30] Speaker 03:
And your problem is showing us that there is not substantial evidence to support the finding.

[00:01:38] Speaker 01:
Absolutely.

[00:01:39] Speaker 01:
And I think the board's decision is interesting in that it recites the case law and then I think unfairly tries to shoehorn the facts into the case law.

[00:01:55] Speaker 01:
especially with respect to credibility issues, because we're dealing with a false statement charge.

[00:02:02] Speaker 01:
But that's my point, is that we're dealing with a situation where an officer makes a reasonable determination that there's been a security violation.

[00:02:15] Speaker 01:
And just because the MSPB judge didn't feel that she took the appropriate action at that moment, therefore is indicative of

[00:02:24] Speaker 01:
her untruthfulness.

[00:02:25] Speaker 01:
In other words, she sees a violation.

[00:02:27] Speaker 01:
She reacts a certain way.

[00:02:29] Speaker 01:
And the point that I think, Your Honor, is getting to is that when it comes to substantial evidence, the board ignored two critical pieces of evidence, never even considered them.

[00:02:41] Speaker 01:
And I think it frankly got forgotten.

[00:02:42] Speaker 05:
How do you know that the board never considered them?

[00:02:45] Speaker 05:
You think the board didn't consider them because it wasn't expressly addressed in the opinion?

[00:02:51] Speaker 01:
Yes, and I'm aware.

[00:02:52] Speaker 01:
Yes, Your Honor, that's correct.

[00:02:54] Speaker 01:
But I feel that with all the other, and I agree that the case law doesn't require the board to spell out every last thought and every last piece of evidence.

[00:03:05] Speaker 02:
Could you say what the two things are you talking about?

[00:03:07] Speaker 02:
Yes, Your Honor.

[00:03:08] Speaker 01:
Critically, the first one was Corporal Nelson.

[00:03:11] Speaker 01:
We had a stipulation because the judge excluded a Corporal Nelson who was actually the officer who was closest to my client at the security checkpoint.

[00:03:20] Speaker 01:
And that person, that Corporal,

[00:03:23] Speaker 01:
recalled my client mentioning something about a person with a camera.

[00:03:29] Speaker 01:
So that was critical corroborating testimony.

[00:03:32] Speaker 01:
Because we were saying that if the argument is my client's out of whole cloth making up this security violation, that Miss Rivera-Pagan did not have a camera, she's completely made it up, then why would she also have the advanced thought to be able to tell a colleague who's nearby, I just dealt with somebody with a camera.

[00:03:51] Speaker 01:
So that was the first piece.

[00:03:53] Speaker 01:
And the second, and that was a stipulation.

[00:03:55] Speaker 01:
So that's why I believe I think it got forgotten, because that was dealt with at the pretrial phase.

[00:04:02] Speaker 01:
And the judge excluded that witness and said, look, we'll just agree to a stipulation.

[00:04:06] Speaker 01:
And that was stipulated.

[00:04:08] Speaker 01:
Stipulated as to what the witness would testify?

[00:04:12] Speaker 01:
Exactly what I just said, that he remembered some discussion of my client speaking about an employee with A. And did you say,

[00:04:23] Speaker 02:
even with the stipulation, we think it's important for Corporal Nelson to get on the stand so that we can explore how your client didn't seem, I don't know, like she was making stuff up when she said this to me, or something about surrounding circumstances, or was, did you object to the exclusion of the witness?

[00:04:45] Speaker 01:
I did, I mean, it was my position that the witness, during pretrial, that the witness should be allowed to testify, but the resolution that the

[00:04:52] Speaker 01:
that the judge came up with, I think just said, I'm going to exclude this witness, but I'm going to allow for stipulation.

[00:05:00] Speaker 01:
And in other words, I think she turned to the government and said, do you agree that this is what he would, Corporal Nelson would say?

[00:05:09] Speaker 01:
Yes.

[00:05:09] Speaker 01:
Okay.

[00:05:09] Speaker 01:
Well, she settled.

[00:05:10] Speaker 01:
We don't need to hear from Corporal Nelson.

[00:05:12] Speaker 03:
Did you object to, in your brief sound appeal, do you object to the witness not being called in person?

[00:05:19] Speaker 01:
I honestly can't recall if I objected on that telephonic, that was a telephonic pretrial conference.

[00:05:25] Speaker 01:
But I did, it was my position that the corporal should be called.

[00:05:29] Speaker 01:
But even if that was, because I don't believe that- Is that an issue on appeal?

[00:05:36] Speaker 01:
No, it's not one of the issues I raised, but I did note that I felt that the court improperly made, created this situation where I'm going to exclude your witness.

[00:05:45] Speaker 01:
I'm going to allow for stipulation.

[00:05:47] Speaker 01:
The stipulation was noted, and it was in the pretrial conference report.

[00:05:50] Speaker 01:
But then we don't, it's almost as though, and I know this is a long way around the barn to let the cows out, as the saying goes.

[00:05:59] Speaker 01:
But my point is that the decision is that she's lying.

[00:06:07] Speaker 01:
But it mentions nothing.

[00:06:09] Speaker 01:
And I understand Your Honor's issue with that is with my,

[00:06:15] Speaker 01:
argument, that being that because Corporal Nelson was never mentioned again, that I feel that the board did, in fact, ignore it.

[00:06:26] Speaker 02:
And what was the second?

[00:06:28] Speaker 01:
Well, the second issue was Corporal Vandegrift.

[00:06:30] Speaker 01:
And this is even a bigger issue, because this witness did testify and testified, I think, very credibly.

[00:06:37] Speaker 01:
And there was no credibility determination by the board as to that she was not credible or that she had contradictory

[00:06:45] Speaker 01:
testimony or some reason not to acknowledge or consider this particular witness.

[00:06:53] Speaker 01:
This witness again corroborated my client's testimony, albeit on a different incident where she testified that she also had encountered Miss Rivera Pagan on a different occasion with a camera and there was some discussion back and forth about that camera.

[00:07:11] Speaker 01:
So even if the

[00:07:12] Speaker 01:
The board said for some reason that my corporal Vandegrift is not credible.

[00:07:16] Speaker 01:
It would have been incumbent upon the, I think upon the board to say that.

[00:07:20] Speaker 01:
Because otherwise you have these two critical pieces of evidence that directly corroborate what my client's saying.

[00:07:26] Speaker 03:
What was the time frame of the earlier incident with the camp?

[00:07:29] Speaker 03:
A few months.

[00:07:30] Speaker 03:
Two months?

[00:07:30] Speaker 01:
A few months.

[00:07:31] Speaker 01:
Several months, yeah.

[00:07:33] Speaker 01:
It was like within six months.

[00:07:35] Speaker 01:
A few months earlier?

[00:07:38] Speaker 01:
Yes.

[00:07:38] Speaker 01:
So in other words, it directly corroborated my client's and the fact, and I will also say there was a third piece that it was discussed at the trial, that my client sought direction from her superiors even prior to taking any official police action.

[00:08:02] Speaker 01:
So this is an officer who's not hard charging to

[00:08:09] Speaker 01:
get Ms.

[00:08:10] Speaker 01:
Rivera-Hagan, who she didn't even know, and the evidence was she's never even met before, never knew, had no reason between them to have a dispute.

[00:08:21] Speaker 01:
And yet, we have the evidence on the record that my client contacted several times her supervisors, which is known as C-Pockets, like the communication center, and a corporal cook who

[00:08:35] Speaker 01:
is basically the communications oversight and said, what should I do?

[00:08:40] Speaker 01:
This is what I think happened.

[00:08:41] Speaker 02:
Do I remind me, did the administrative judge here say anything about a suggested motive to fabricate this event?

[00:08:53] Speaker 01:
No, no suggested, no.

[00:08:55] Speaker 01:
And there was no such evidence put forth on the record at all.

[00:08:58] Speaker 01:
I think the only thing the judge was saying is that she felt that there was

[00:09:03] Speaker 01:
I suppose there was an inference, just in full candor, that I think the judge said that she felt maybe that corporal Joy felt that she had been... Insulted?

[00:09:18] Speaker 01:
Insulted in some very, but in an instant, because of the fact that Miss Rivera-Pagan came to her with her bag very quickly, threw it on there and searched it.

[00:09:32] Speaker 01:
And then there was that moment where I think the judge is inferring that because of that, I'm going to risk my entire 16-year career in law enforcement at this agency where I search bags every day.

[00:09:45] Speaker 01:
People are rushing, coming in, coming out.

[00:09:47] Speaker 01:
I have people who feel they're too good to be searched, people who feel that they don't need to be searched.

[00:09:53] Speaker 01:
High ranking, low ranking, everybody in the middle, former police, former military, former dignitaries, whatever the case may be, they come to this building, and she's used to dealing with them.

[00:10:02] Speaker 01:
And all of a sudden, the judge is saying, I think you felt snubbed.

[00:10:06] Speaker 01:
And as a result, you're going to dishonorably fabricate an entire situation.

[00:10:13] Speaker 03:
Isn't there some support for that in the video?

[00:10:17] Speaker 01:
No, it's actually quite the opposite.

[00:10:18] Speaker 01:
Because the agencies, and I'm glad you brought that up, Your Honor, and I know I'm in rebuttal time.

[00:10:23] Speaker 01:
The agency's theory from the ground up was that the purple joy had

[00:10:31] Speaker 01:
essentially felt snubbed because that Ms.

[00:10:37] Speaker 01:
Rivera-Pagan snatched the bag back.

[00:10:40] Speaker 01:
But actually, the judge felt that there was no snatching of the bag either way and instead focused on a different issue, which was this hurried movements and the fact that Ms.

[00:10:51] Speaker 01:
Rivera-Pagan kept her hand over top of the bag.

[00:10:55] Speaker 03:
Yeah, but there was a laughter afterwards, which kind of could suggest that

[00:10:59] Speaker 03:
your client was expressing frustration or sort of expressing by laughter that she thought that the person going through the metal detector was behaving badly?

[00:11:15] Speaker 01:
Yes, she referred to it as the look of surprise, the leaning back with the gesture that the judge referred to in the decision.

[00:11:23] Speaker 01:
looking back at an open mouth issue.

[00:11:27] Speaker 01:
But my client testified.

[00:11:29] Speaker 01:
She never disputed that.

[00:11:31] Speaker 01:
She said, it was a look of realization.

[00:11:34] Speaker 01:
Now I understand why you were acting this way.

[00:11:38] Speaker 01:
She says, I get it.

[00:11:39] Speaker 01:
You were trying to conceal the fact that you had a camera.

[00:11:42] Speaker 01:
But it's only a security violation.

[00:11:44] Speaker 01:
It's not like a weapon or a bomb or some other kind of destructive device.

[00:11:49] Speaker 01:
It's a security violation that needs to be dealt with, and it would be handled by a supervisor.

[00:11:54] Speaker 01:
And no one gets fired over it.

[00:11:57] Speaker 01:
It's not theft.

[00:11:57] Speaker 01:
It's not a crime.

[00:11:58] Speaker 01:
It's just a security issue.

[00:11:59] Speaker 01:
It's like leaving a door unlocked or leaving a book inside of a door.

[00:12:02] Speaker 01:
You're not supposed to do that.

[00:12:03] Speaker 01:
You're supposed to let things be secure.

[00:12:05] Speaker 01:
They get a security violation.

[00:12:06] Speaker 01:
Everybody knows in the building.

[00:12:08] Speaker 03:
But the administrative judge could conclude that her explanation about her reaction at the security point was not accurate.

[00:12:18] Speaker 01:
Could, is that a rational connection to make that if somebody expresses surprise that I'm going to reach into their brain and say, you know what, I don't think you were telling the truth.

[00:12:28] Speaker 01:
I think you weren't just realizing that the person was doing this.

[00:12:31] Speaker 01:
I'm thinking that you are acting angry by with that and I'm going to get you now and I'm going to, it's not a rational connection.

[00:12:45] Speaker 05:
One of the problems I'm having is that

[00:12:48] Speaker 05:
We have to look at whether there's substantial evidence to support the findings made by the administrative judge, which include findings that Ms.

[00:12:58] Speaker 05:
Rivera-Pagan testified credibly, and that she had no reason to deny having a camera if she had one, and that she didn't have a camera.

[00:13:07] Speaker 05:
And then you have the contrary statements of your client that she did have a camera, that she snatched her purse.

[00:13:13] Speaker 05:
These things that seem to be in opposition.

[00:13:18] Speaker 05:
The question is, one of the charges was candor, right?

[00:13:21] Speaker 05:
And the other one was, what was it, false testimony?

[00:13:24] Speaker 05:
False statement, yes.

[00:13:26] Speaker 05:
So what do we do with that?

[00:13:28] Speaker 05:
I mean, because you've got a pretty difficult burden of proof here, of showing that the administrative judge's findings were unreasonable.

[00:13:39] Speaker 01:
Yes, I think the issue comes down to whether the judge's decision was arbitrary, capricious, or an abuse of discretion, I think,

[00:13:48] Speaker 01:
I agree that substantial evidence may be even harder, but I think it's not unfair to say that when you have this information before you and you have this decision that just accepts one version over the other and makes these leaps that I think we just discussed that are really not rationally based and not fair.

[00:14:14] Speaker 01:
You could come to that conclusion, but is that something that we could reasonably say?

[00:14:18] Speaker 01:
If I go like that, it means I'm going to concoct a setup and conspiracy to find you guilty of a crime or a security violation that you didn't commit, or can this reaction be something that makes sense, which is what my client had testified about, which is that she felt, now I get it, I understand what happened, and I'm going to deal with it when she gets back.

[00:14:37] Speaker 01:
And I'm also going to double-check.

[00:14:39] Speaker 01:
So we're dealing with

[00:14:40] Speaker 01:
whether the standard being whether the judge was abused her discretion or acted in an arbitrary or capricious manner, when she basically wholesale accepted the government's viewpoint on this case, seemingly ignoring or discounting or not considering or not weighing the evidence, the very significant evidence that corroborated my client's testimony.

[00:15:09] Speaker 01:
in a case where there really is no way to tell.

[00:15:12] Speaker 01:
We have no conclusive evidence in this case.

[00:15:13] Speaker 01:
No one's changed their story.

[00:15:15] Speaker 01:
There's no smoking gun.

[00:15:17] Speaker 01:
But there's not a requirement of conclusive evidence.

[00:15:20] Speaker 01:
I agree, but that's my whole point.

[00:15:22] Speaker 01:
There may not be a requirement, but that doesn't necessarily give the MSPB license to say, because like I pointed out at the very beginning, this happens every day.

[00:15:32] Speaker 01:
And if this is the standard,

[00:15:34] Speaker 01:
that we're going to allow that every situation, time where there's an officer who disputes what, and a defendant takes a different position, the officer could be up on false statement charges.

[00:15:44] Speaker 01:
I believe my time is up.

[00:15:45] Speaker 03:
Thank you very much.

[00:15:46] Speaker 03:
All right.

[00:15:46] Speaker 03:
We'll give you two minutes for rebuttal.

[00:15:48] Speaker 01:
I'm sorry, Your Honor.

[00:15:49] Speaker 03:
We'll give you two minutes for rebuttal.

[00:15:50] Speaker 03:
Understood.

[00:15:51] Speaker 03:
Thank you very kindly.

[00:15:59] Speaker 03:
Mrs. Bae, is that how you pronounce it?

[00:16:01] Speaker 00:
Yes, Your Honor.

[00:16:10] Speaker 00:
May it please the court.

[00:16:11] Speaker 00:
The MSPB's decision upholding the agency's removal of Ms.

[00:16:15] Speaker 00:
Joy from her position was supported by substantial evidence and not arbitrary or capricious.

[00:16:20] Speaker 00:
As such, it should be affirmed.

[00:16:22] Speaker 00:
Mr. Bregman just now stated that the administrative judge's decision essentially came down to accepting one version over another, presumably meaning the agency's version and Ms.

[00:16:33] Speaker 00:
Rivera-Pagan's version over Ms.

[00:16:35] Speaker 00:
Joy's.

[00:16:35] Speaker 00:
However, what Mr. Bregman says

[00:16:38] Speaker 00:
actually goes to the heart of the administrative judge's role in assessing credibility of the witnesses and making a credibility determination, which is virtually unreviewable by this court.

[00:16:49] Speaker 00:
Mr. Bregman makes much of the fact that the administrative judge failed to consider certain exculpatory evidence.

[00:16:56] Speaker 00:
However, as we demonstrated in our brief,

[00:16:59] Speaker 00:
Just because the administrative judge did not discuss every single piece of evidence in her decision, it does not mean she did not consider them.

[00:17:06] Speaker 00:
And in this case, the administrative judge actually specifically said in her decision that she considered all the evidence on the record.

[00:17:15] Speaker 02:
There are two propositions of law that together have to be.

[00:17:22] Speaker 02:
have a bearing on insufficiency of agency explanation.

[00:17:26] Speaker 02:
The fact that something isn't mentioned is obviously not by itself a reason to overturn an agency decision.

[00:17:32] Speaker 02:
On the other hand, an agency does actually have to give reasons, including reasons for factual findings on substantial evidence of the record as a whole.

[00:17:40] Speaker 02:
And so there can be instances in which there seem to be unexplained aspects of the evidence that seem important enough that they should have been addressed.

[00:17:49] Speaker 02:
Why is this not one of those?

[00:17:51] Speaker 00:
This is not one of those, because for one, one of the key points that Mr. Bregman makes is the testimony of Corporal Vandergrift.

[00:18:00] Speaker 02:
However, the testimony of- This is about the months earlier instance of a camera in the verse?

[00:18:08] Speaker 00:
Yes, Your Honor.

[00:18:09] Speaker 00:
Corporal Vandergrift's testimony.

[00:18:11] Speaker 00:
I believe Corporal Vandergrift worked at BEP and was a good friend of Miss Joyce.

[00:18:16] Speaker 00:
However, the administrative judge held an eight-hour or more hearing, hearing live testimony from multiple witnesses, which included Corporal Vandergrift and so had the opportunity to assess Corporal Vandergrift's testimony live and assess Corporal Vandergrift's own credibility and demeanor.

[00:18:34] Speaker 00:
And there's no reason to think, especially given that she said she considered all the evidence that she did not consider Corporal Vandergrift's testimony.

[00:18:42] Speaker 03:
Where do we find the Vandergrift testimony and the record in the appendix?

[00:18:46] Speaker 00:
The Vandergrift testimony is in the record.

[00:18:54] Speaker 00:
I believe she starts testifying at approximately page 618, or appendix 618 or so, and there are excerpts of her testimony contained in the hearing transcript and as part of the joint appendix.

[00:19:12] Speaker 00:
Why is it that

[00:19:13] Speaker 05:
I heard your answer was that there was an eight-hour hearing, and the judge heard this testimony.

[00:19:22] Speaker 05:
But I didn't hear an answer to the question of, why didn't the judge have to explain that this testimony was not convincing or didn't corroborate Ms.

[00:19:35] Speaker 05:
Joy's testimony?

[00:19:38] Speaker 00:
The administrative judge did not specifically discuss Corporal Vandergrift's testimony.

[00:19:43] Speaker 00:
However, she did discuss a good deal of evidence that was on the record and at the hearing in front of her, and she concluded that the preponderance of the evidence established an overwhelming case for Ms.

[00:19:57] Speaker 00:
Joy's removal and that Ms.

[00:19:59] Speaker 00:
Joy's story was essentially internally inconsistent with the video and inherently improbable.

[00:20:09] Speaker 00:
Upon such findings, she determined that Ms.

[00:20:11] Speaker 00:
Joy had made a false statement to the agency with the intent to deceive them.

[00:20:17] Speaker 05:
Is it your point that there's obvious problems with the testimony that was presented, and that's why the administrative judge didn't have to address it?

[00:20:27] Speaker 05:
I mean, you're not sure what the administrative judge thought.

[00:20:32] Speaker 00:
Of course, I cannot look into exactly what the administrative judge was thinking.

[00:20:36] Speaker 00:
when she determined not to address Corporal Vandergrift's testimony specifically.

[00:20:41] Speaker 00:
But again, there is no indication that she did not consider such testimony, especially given that Corporal Vandergrift testified right in front of her.

[00:20:49] Speaker 00:
And the evidence still presented an overwhelming case in favor of her determination that Miss Joy made a false statement and lacked candor during the agency proceedings.

[00:21:00] Speaker 00:
And she did go into a good amount of detail of the various reasons why Ms.

[00:21:05] Speaker 00:
Joy's story did not make sense and led her to believe that Ms.

[00:21:08] Speaker 00:
Joy was making a false statement.

[00:21:11] Speaker 00:
The two key things that she discussed were the video footage and that Ms.

[00:21:15] Speaker 00:
Joy's account was simply inconsistent with that footage and that Ms.

[00:21:19] Speaker 00:
Rivera-Pagan

[00:21:20] Speaker 00:
knew what the camera policy was at the agency, and essentially that Ms.

[00:21:26] Speaker 00:
Rivera Pagan had no reason to lie about having a camera in her bag.

[00:21:32] Speaker 02:
Can you answer the question I asked your friend on the other side?

[00:21:36] Speaker 02:
Where exactly does the administrative judge say something suggestive of a motive on Ms.

[00:21:47] Speaker 02:
Joy's part to make this up?

[00:21:50] Speaker 00:
I don't believe that the administrative judge did say anything suggesting a motive on Ms.

[00:21:56] Speaker 00:
Joy's part.

[00:21:57] Speaker 00:
As far as we can tell on the record, we don't know why Ms.

[00:22:03] Speaker 00:
Joy acted the way she did or why she made this up.

[00:22:06] Speaker 00:
But the evidence still overwhelmingly suggests that she did make this up and that she did not see a camera in Ms.

[00:22:12] Speaker 00:
Rivera-Pagan's purse.

[00:22:16] Speaker 00:
The MSPB's decision.

[00:22:17] Speaker 02:
So there's nothing in the AHA's decision about insult or snubbing or feeling disrespected or anything like that.

[00:22:25] Speaker 02:
At least speaking for myself, I read the events here and there's a kind of mystery about what happened here and why people were acting the way they did, which seems to have some bearing on a charge of

[00:22:42] Speaker 02:
fabrication, deliberate lying about something.

[00:22:48] Speaker 00:
Your Honor, there is nothing in the administrative judge's decision that speaks to the direct motive of Ms.

[00:22:54] Speaker 00:
Joy in doing what she did.

[00:22:56] Speaker 00:
The administrative judge does address the interaction between Ms.

[00:22:59] Speaker 00:
Rivera-Pagan and Ms.

[00:23:00] Speaker 00:
Joy during the security screening and states that Ms.

[00:23:05] Speaker 00:
Joy

[00:23:06] Speaker 00:
may have perceived Ms.

[00:23:07] Speaker 00:
Rivera-Pagan to be angrily stomping and acting rudely.

[00:23:12] Speaker 00:
However, the administrative judge decided that the video footage did not support Ms.

[00:23:17] Speaker 00:
Joy's account of those events.

[00:23:19] Speaker 00:
And even if we don't know Ms.

[00:23:20] Speaker 02:
Joy's exact motive in- But doesn't that, I guess, doesn't that deepen the mystery?

[00:23:27] Speaker 02:
That is, if it turns out that there wasn't even behavior

[00:23:34] Speaker 02:
at the scene that might suggest a motive, then aren't we even deeper in the mystery of what kind of motive would there be for Ms.

[00:23:47] Speaker 02:
Joy to make this up?

[00:23:49] Speaker 00:
Well, first of all, the administrative judge does state that Ms.

[00:23:52] Speaker 00:
Pagan does appear to be in a very typical hurry.

[00:23:55] Speaker 00:
And there was evidence in the record suggesting that Ms.

[00:23:58] Speaker 00:
Rivera Pagan may have been a little bit hasty or rude with Ms.

[00:24:01] Speaker 00:
Joy.

[00:24:02] Speaker 00:
However, there's nothing to suggest that

[00:24:04] Speaker 00:
the specific reason why Ms.

[00:24:08] Speaker 00:
Joy targeted Ms.

[00:24:09] Speaker 00:
Rivera-Pagan.

[00:24:10] Speaker 00:
And we agree with you.

[00:24:11] Speaker 00:
It is a mystery as to why.

[00:24:12] Speaker 03:
Now I'm confused.

[00:24:14] Speaker 03:
Are you saying that the administrative judge did find that there was evidence that Ms.

[00:24:19] Speaker 03:
Joy found the behavior rude?

[00:24:23] Speaker 00:
No, Your Honor.

[00:24:24] Speaker 00:
What I was saying regarding the administrative judge's decision was that she cited Ms.

[00:24:29] Speaker 00:
Joy's

[00:24:31] Speaker 00:
Contention that miss Rivera Pagan appeared to be angrily stomping and snatching the bag back from her however the administrative judge actually disagreed with Miss Joy's finding on those points.

[00:24:41] Speaker 05:
Wasn't that really not going to motive?

[00:24:44] Speaker 05:
It was going to whether Miss Joy's account was true or not.

[00:24:49] Speaker 00:
Yes, your honor.

[00:24:50] Speaker 05:
It's not really fair to infer a motive from that, is it?

[00:24:53] Speaker 00:
No, I agree with your honor that it doesn't specifically go to motive.

[00:24:58] Speaker 00:
Is there anything in the record on motive at all?

[00:25:01] Speaker 00:
There might be some inferences in the agency's response, but not in the specific evidence on the record as to the motive.

[00:25:10] Speaker 00:
But we agree that we don't know exactly why Ms.

[00:25:13] Speaker 00:
Joy did what she did, but the evidence still overwhelmingly supports the determination that Ms.

[00:25:19] Speaker 00:
Joy lacked candor during the investigative process and that she made a false statement

[00:25:25] Speaker 00:
knowing it was false, either with the intent to deceive or at the very least with reckless disregard for the truth.

[00:25:31] Speaker 02:
I think I'm probably just repeating myself, but in the absence of any finding about motive, really what is the basis for saying that she made this up?

[00:25:47] Speaker 00:
The basis for saying that Ms.

[00:25:49] Speaker 00:
Joy made a false statement was not one specific- I'm sorry.

[00:25:53] Speaker 02:
Made up means false and deliberately intentionally false.

[00:25:59] Speaker 00:
Yes, Your Honor.

[00:26:00] Speaker 00:
We agree that the standard is that she had to deliberately have made the statement with intent to deceive, or at least with a reckless disregard for the truth.

[00:26:10] Speaker 00:
And the evidence as a whole that the administrative judge cites supports this

[00:26:14] Speaker 00:
First of all, there is the fact that Miss Rivera Pagan had no reason to lie.

[00:26:19] Speaker 00:
And second of all, there is the fact that Miss Joy's story was internally inconsistent, even throughout the entire process of the interaction with Miss Pagan and through the investigative process and the hearing in front of the administrative judge.

[00:26:35] Speaker 00:
And finally, the administrative judge simply found that Ms.

[00:26:39] Speaker 00:
Joy's account of what happened was inherently improbable based on her testimony, Ms.

[00:26:45] Speaker 00:
Rivera Pagan's testimony, and the video evidence.

[00:26:50] Speaker 00:
And taking all that evidence into account decided that Ms.

[00:26:55] Speaker 00:
Joy's story was simply not believable, and based on preponderant evidence, the MSPB upheld Ms.

[00:27:02] Speaker 00:
Joy's termination.

[00:27:04] Speaker 00:
Both the agency and the MSPB determined that either the false statement charge or the lack of candor charge standing on their own would have been enough to remove Ms.

[00:27:16] Speaker 00:
Joy from her position.

[00:27:17] Speaker 00:
And the lack of candor charge, which was also upheld by the administrative judge, has different standards than the false statement and only requires that the agency must prove that the appellant gave incorrect or incomplete information and did so knowingly.

[00:27:33] Speaker 00:
And the administrative judge stated that based on many of the same reasons, including the video footage and the credibility of the witnesses, that Ms.

[00:27:43] Speaker 00:
Joy lacked candor in providing her statements to the investigator during the investigative process.

[00:27:50] Speaker 02:
So I'm still having trouble understanding what difference on the facts of this case there is between these two charges.

[00:27:58] Speaker 02:
Either she made this up or she didn't make it up.

[00:28:00] Speaker 00:
Yes, Your Honor.

[00:28:01] Speaker 00:
The evidence overwhelming supports a finding that Ms.

[00:28:04] Speaker 00:
Joy did make up the statement that Ms.

[00:28:08] Speaker 00:
Rivera-Pagan had a camera in her bag.

[00:28:13] Speaker 00:
As I said, the video footage does not support Ms.

[00:28:16] Speaker 00:
Joy's account of the testimony.

[00:28:17] Speaker 00:
And there is, again, the fact that Ms.

[00:28:19] Speaker 00:
Rivera-Pagan knew that she was allowed to bring a camera into the facility.

[00:28:23] Speaker 00:
Therefore, even if she had a camera, there would have been no reason for her to obfuscate it

[00:28:29] Speaker 00:
or put it in the bushes during her break.

[00:28:31] Speaker 00:
And that's one thing that I hadn't discussed yet, which is that Miss Joy alleges that she saw a camera in Miss Rivera Pagan's bag as she was exiting the building.

[00:28:42] Speaker 00:
However, even though Miss Joy thought that was a security violation, she did and said nothing at the time.

[00:28:47] Speaker 00:
However, further, it's undisputed that Miss Rivera Pagan returned only 10 to 15 minutes later after getting lunch.

[00:28:55] Speaker 00:
and came back through that same security station with Ms.

[00:28:58] Speaker 00:
Joy.

[00:28:59] Speaker 00:
And Ms.

[00:28:59] Speaker 00:
Joy concedes that at this point, Ms.

[00:29:01] Speaker 00:
Rivera Pagan did not have a camera.

[00:29:04] Speaker 00:
And however, again,

[00:29:07] Speaker 00:
Even though Ms.

[00:29:08] Speaker 00:
Joy states that she saw a camera on Ms.

[00:29:10] Speaker 00:
Rivera-Pagan's way out, she did not say anything either on the way out or when Ms.

[00:29:15] Speaker 00:
Rivera-Pagan came back in purportedly without a camera.

[00:29:19] Speaker 00:
And this version of events simply does not make sense given that Ms.

[00:29:23] Speaker 00:
Joy was under the impression that having such a camera constituted a security violation and that Ms.

[00:29:29] Speaker 00:
Rivera-Pagan knew

[00:29:30] Speaker 00:
that cameras were allowed and therefore had no reason to go hide a camera on her lunch room.

[00:29:35] Speaker 02:
And does the record make clear that Ms.

[00:29:37] Speaker 02:
Joy did not know about the change of the policy, even though Ms.

[00:29:40] Speaker 02:
Rivera-Pagan did know?

[00:29:42] Speaker 00:
The record is clear that Ms.

[00:29:44] Speaker 00:
Rivera-Pagan did know about the change in policy.

[00:29:46] Speaker 02:
I'm really interested in the first half.

[00:29:50] Speaker 00:
Ms.

[00:29:50] Speaker 00:
Joy's testimony is that she did not know about the change in the policy.

[00:29:54] Speaker 00:
I don't know that there's any extrinsic evidence that she did not know, but we have no reason

[00:30:00] Speaker 02:
And I don't remember on the video, does it show that there were a significant number of people as Ms.

[00:30:08] Speaker 02:
Rivera-Pagan was going out, waiting to behind her to also go out?

[00:30:15] Speaker 02:
Or was she, did they basically have all the time in the world to have a conversation about what happened?

[00:30:22] Speaker 02:
Or might there have been some sense of pressure to get other people out to lunch?

[00:30:27] Speaker 00:
I believe that Miss Joy testified during the administrative hearing that she was undecided what to do at that moment.

[00:30:35] Speaker 03:
I think the answer to the question is the video doesn't show a lot of people waiting behind her to go out.

[00:30:40] Speaker 00:
No, no it doesn't.

[00:30:42] Speaker 00:
And again, Miss Joy stated that she was indecisive about what to do and that in hindsight she should have stopped Miss Rivera Pagan.

[00:30:51] Speaker 00:
But the fact that she didn't and the fact that she didn't say anything to Miss Rivera Pagan on the way back in

[00:30:57] Speaker 00:
again supports the agencies and the MSPB's determination that Ms.

[00:31:02] Speaker 00:
Joy was not telling the truth and she knew she was not telling the truth when she asserted multiple times on official records that Ms.

[00:31:10] Speaker 00:
Rivera Pagan had a camera in her bag.

[00:31:12] Speaker 03:
What are we to make of the testimony and the finding about the testimony where Ms.

[00:31:20] Speaker 03:
Joy testified that there was stomping

[00:31:24] Speaker 03:
and her testimony about the laughter, which the administrative judge specifically disbelieved her statements about both of those, finding that they were not credible.

[00:31:43] Speaker 03:
To what extent does that bear on the finding of false statements?

[00:31:48] Speaker 00:
It supports the administrative judge's finding of a false statement because it again shows that Ms.

[00:31:53] Speaker 00:
Joy's story was not consistent with the video footage which the administrative judge reviewed both at the hearing and perhaps when she was issuing her decision.

[00:32:03] Speaker 00:
The administrative judge found that the video evidence did not support Ms.

[00:32:08] Speaker 00:
Joy's characterization of the incident and that based on Ms.

[00:32:12] Speaker 00:
Joy's testimony at the hearing, that she did not find Ms.

[00:32:15] Speaker 00:
Joy's explanation for the laughter to be credible.

[00:32:19] Speaker 00:
And therefore, it again supports the MSPB's determination that Ms.

[00:32:23] Speaker 00:
Joy was making a false statement.

[00:32:25] Speaker 05:
So there were two documents that were identified as being documents where there were false statements made.

[00:32:32] Speaker 05:
One was a Form 9090, and then the other one was an incident report that was prepared after the Form 9090 was prepared.

[00:32:41] Speaker 05:
I can't find that incident report in the appendix.

[00:32:44] Speaker 05:
Is there a reason why I can't find it?

[00:32:46] Speaker 00:
I believe the only reason why you wouldn't be able to find it is because I don't think

[00:32:52] Speaker 00:
Either we overlooked it when we were putting together the joint appendix, or we did not cite specifically to that page.

[00:32:58] Speaker 00:
However, if Your Honor wishes, I would, of course, be willing to file a supplement to the appendix.

[00:33:03] Speaker 00:
It was on the record below, and it was in our proposed joint appendix.

[00:33:06] Speaker 00:
It just did not make it into the final appendix.

[00:33:09] Speaker 00:
But as I said, if Your Honor wishes, I would file a supplement to the appendix.

[00:33:14] Speaker 03:
Why don't you submit a copy of that?

[00:33:16] Speaker 00:
Excuse me?

[00:33:16] Speaker 03:
Why don't you submit a copy without argument?

[00:33:19] Speaker 03:
Just a copy of the document.

[00:33:23] Speaker 03:
OK.

[00:33:24] Speaker 00:
For these reasons, we respectfully request that.

[00:33:26] Speaker 03:
OK, we're out of time.

[00:33:28] Speaker 03:
Thank you.

[00:33:31] Speaker 01:
Thank you kindly again, Your Honors, for this opportunity.

[00:33:35] Speaker 01:
The 16 years in law enforcement and with an honorable military background.

[00:33:41] Speaker 01:
And my client goes and has a lawyer from the general counsel's office who's relatively new to the agency.

[00:33:49] Speaker 01:
And she doesn't have any connections with whatsoever.

[00:33:53] Speaker 01:
No reason to fabricate.

[00:33:54] Speaker 03:
Apparently, the Administrative Judge did find that she fabricated something else, which is her testimony about the stomping and her other testimony about the incident concerning the laughter.

[00:34:12] Speaker 01:
My response to that when I wrote it down was, I hope you can watch the video again and see

[00:34:17] Speaker 01:
That is not a rash once again.

[00:34:19] Speaker 01:
That's where the that's where the problem I have with the judges opinion being and why fields arbitrary capricious Or abuse of discretion to say that you don't see first.

[00:34:29] Speaker 01:
I can't hear anything.

[00:34:30] Speaker 03:
There's no audio So you don't hear any noise secondly there's it only shows miss Rivera Pagan coming into the frame Okay, but what we have the point is that we have a finding by the administrative judge that she misstated the existence of stomping at at the checkpoint

[00:34:48] Speaker 03:
and that her explanation as to why she left was not credible.

[00:34:54] Speaker 01:
Does that entitle the decision to any deference because that decision that's no more than any other person's opinion?

[00:35:05] Speaker 01:
That's why I keep using the term, is it rationally based?

[00:35:09] Speaker 01:
The judge saying, I don't find any stomping.

[00:35:13] Speaker 01:
Well, of course, you're not going to see what

[00:35:15] Speaker 01:
Joy saw, which is her coming down the hallway, hearing what's coming down the hallway.

[00:35:20] Speaker 01:
And even if she misperceived, and we all have been in this situation, where we recall an event differently than other people do, I felt this person was angry.

[00:35:30] Speaker 01:
Well, I didn't think they were angry.

[00:35:31] Speaker 01:
I think they were surprised.

[00:35:32] Speaker 05:
What about this?

[00:35:33] Speaker 05:
I mean, it's not just the video here.

[00:35:37] Speaker 05:
And I understand what you're saying about the video.

[00:35:39] Speaker 05:
I watched it.

[00:35:42] Speaker 05:
But there's also testimony from another witness as well.

[00:35:45] Speaker 05:
who is deemed to be credible and whose account of the events was deemed to be credible and who justified that you didn't angrily stop.

[00:35:52] Speaker 05:
So it's not just the video, right?

[00:35:54] Speaker 01:
Right.

[00:35:55] Speaker 01:
It's a video.

[00:35:56] Speaker 01:
The video, I almost feel, is essentially, it's not a tiebreaker.

[00:36:00] Speaker 01:
The video is the video.

[00:36:01] Speaker 01:
And then you have two people giving their reasonable impressions about what they felt was going on and why they did what they did.

[00:36:10] Speaker 01:
It doesn't then connect.

[00:36:11] Speaker 01:
That goes to that mystery point that I think was raised earlier.

[00:36:14] Speaker 01:
is then you say, well then, because that's my point earlier as well, that there's no smoking gun to be a tiebreaker.

[00:36:22] Speaker 01:
And then essentially what the judge is doing is making, I feel, an abuse of the discretion to say, I'm going to go with this attorney who apparently had some

[00:36:40] Speaker 01:
knowledge about the procedures and therefore wouldn't have any motivation to lie.

[00:36:46] Speaker 01:
But on the other hand, I have an officer who also doesn't have a motivation to lie.

[00:36:49] Speaker 01:
I think that's the problem here.

[00:36:51] Speaker 01:
Those discretionary decisions, were they proper?

[00:36:56] Speaker 01:
And that, I think, goes to the heart of our concerns here.

[00:36:59] Speaker 01:
Because again, any situation that we deal with for police officers every day would be under scrutiny with this type of evaluation.

[00:37:09] Speaker 01:
And it depends on who they're dealing with.

[00:37:11] Speaker 03:
I think we're about out of time.

[00:37:12] Speaker 01:
I am.

[00:37:12] Speaker 03:
Yes.

[00:37:12] Speaker 01:
OK.

[00:37:13] Speaker 03:
Thank you.

[00:37:14] Speaker 01:
Thank you all very much.

[00:37:15] Speaker 01:
Thank both counsel and cases.