[00:00:07] Speaker 02:
We have three cases on the calendar this morning.

[00:00:10] Speaker 02:
We have an employee case, two patent cases from the key tab.

[00:00:18] Speaker 02:
First case is Crandall Griffin versus the Department of the Navy, 2018-2072.

[00:00:23] Speaker 02:
Mr. Burns.

[00:00:25] Speaker 02:
Thank you, Your Honor.

[00:00:29] Speaker 01:
Good morning, Your Honor.

[00:00:31] Speaker 01:
It's Kevin Burns.

[00:00:34] Speaker 01:
for the petitioner assisted by Rachel Leahy, who assisted me both on the brief and in preparing for this argument.

[00:00:40] Speaker 01:
The fundamental function of this court is twofold when it comes to federal employment, to ensure clarity of federal employment law and to ensure fairness in the decision making, both for the parties and particularly in this case for the petitioner.

[00:00:53] Speaker 01:
In this particular action, neither were honored by the judge, and therefore we come to this court with an appeal.

[00:01:00] Speaker 02:
But you have a client who got 15 speeding tickets in a foreign country, and he was demoted and suspended, not removed.

[00:01:11] Speaker 02:
And that kind of behavior causes problems anywhere, but particularly in a foreign country.

[00:01:22] Speaker 02:
And so where was the problem?

[00:01:26] Speaker 01:
There were a couple of problems with the decision.

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Were they speeding?

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15 speeding tickets?

[00:01:29] Speaker 01:
No, there were actually 7 tickets that were charged, not 15.

[00:01:32] Speaker 01:
That's one of the issues.

[00:01:33] Speaker 01:
Yeah, but they weren't all speeding tickets.

[00:01:35] Speaker 01:
No, some of them were.

[00:01:36] Speaker 01:
Failures to yield one was a minor bumping accident where somebody parked he rear-ended somebody in a parking, but there was at least one parking violation There was one parking violation there these weren't speed the only speed there would know one of the problems with the idea of the 15 and the speeding and the Outrageous of the conduct is there's a couple of problems there first of all there were only seven tickets that were charged and not all of them were speeding most of them are off base only one involved more than 20 miles over the speeding limit and

[00:02:02] Speaker 01:
And none ended with a reckless driving charge.

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None had an injury.

[00:02:06] Speaker 01:
None had intoxication.

[00:02:07] Speaker 01:
So these are the type of traffic infractions that, while there is some frequency to them, certainly, that many of us earn over the course of time.

[00:02:16] Speaker 01:
And so therefore, as we pointed out in our brief, they're not disciplinary actions.

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One does not get disciplined for an off-base failure to yield.

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One does not get disciplined for off-base conduct.

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What happened here is that your client faced

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point accumulation that causes license to be suspended or revoked.

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Correct.

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That's the problem.

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It's not the nature of the traffic ticket.

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It's that your client's license was suspended, and can you do his job that he had as the director of the NCIS in a foreign country

[00:02:54] Speaker 03:
with no license.

[00:02:55] Speaker 01:
Well, let's look at this actual circumstance as to what happened.

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The license that was suspended was his license to drive on a DoD installation in Japan where he was transiting out three weeks later.

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When he originally went to this hearing, as you can see from the form, it's Appendix 1147, the only thing that happened is he appeared before a Navy chief who asked him if he had these items and he said yes and they told him you were going to have your

[00:03:18] Speaker 01:
your Japan-based opportunity suspended.

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To him, that was about three weeks of time he was transiting out.

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The NCIS itself didn't even understand whether or not that would apply to the United States.

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And the NCIS regulations do not require a DOD driver's license.

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They require a state driver's license, which is always maintained.

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Assume that once his license was suspended, it was effective to all bases in the United States.

[00:03:44] Speaker 01:
Correct.

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But there was no requirement that he drive his feet.

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What I don't understand is the argument that he doesn't need a license.

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He can still be the director of the NCIS and not drive, that his wife can take him to

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emergencies and things of that nature.

[00:04:00] Speaker 01:
But we're conflating and confusing certain things.

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First of all, the NCIS could impose a requirement that you have a DOD installation license.

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It can give you a service vehicle like the FBI, the DEA, the Marshall service.

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that requires you to respond whenever, and you have the emergency equipment to do so.

[00:04:18] Speaker 01:
The NCS does not require that.

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It does not require you to drive your car to work.

[00:04:22] Speaker 01:
Most of the people that went where my client was stationed here in the US went to the Pentagon, which I think we can take judicial notice of, has an actual metro station there.

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So he was not required to bring his vehicle.

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He had a Virginia driver's license.

[00:04:37] Speaker 04:
Yes.

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Was that Virginia driver's license valid on basis

[00:04:43] Speaker 04:
for driving overseas?

[00:04:45] Speaker 01:
The Virginia driver's license would give him the opportunity to drive.

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The restriction would be that once he reached the post itself, he would not be authorized to bring that vehicle on if his license was in suspension for the DoD installation.

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So technically speaking, he could not drive his car onto the Pentagon itself.

[00:05:03] Speaker 01:
But I think, again, one of the things.

[00:05:05] Speaker 04:
And yet I can drive with a Virginia license onto a military base.

[00:05:11] Speaker 01:
Right.

[00:05:12] Speaker 01:
Right.

[00:05:13] Speaker 01:
I am not sure whether or not that would apply to restricting him to enter the bass or not.

[00:05:18] Speaker 01:
That was not an issue that was raised.

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It was not an issue that was discussed.

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And I think the important thing for the court is to recognize this.

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I'm not quite sure why he was punished.

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Was he punished for the revocation, or was he punished for the tickets?

[00:05:31] Speaker 01:
Because the court never made that clear.

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And so we have two arguments.

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We have a nexus and a notice argument.

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And on the nexus,

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Yes, losing your license to drive for a year on a military base is certainly embarrassing.

[00:05:45] Speaker 01:
But this individual was not required to have that DOD license, and he was not required to operate a vehicle on the base.

[00:05:51] Speaker 01:
There is no showing from the government, which has the burden of establishing the notice, that he was required to bring this car here.

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What do you say to the missions and the functions that

[00:06:04] Speaker 03:
for NCIS federal law enforcement.

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He's a federal law enforcement agency.

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Part of the mission is to defend against terrorism and foreign intelligence threats, to investigate major criminal offenses, provides the law enforcement security services.

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He's a chief law enforcement officer, isn't he?

[00:06:24] Speaker 01:
Right, and he did all those functions.

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And you're saying he doesn't need to be able to

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have to drive to an emergency or to be a person?

[00:06:33] Speaker 01:
Well, if he was working during the day, one would assume that if he drove to an emergency.

[00:06:36] Speaker 01:
First of all, there's some confusion here as to whether or not the agency has argued.

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But this is substantial evidence we're looking at.

[00:06:44] Speaker 01:
Right.

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But the substantial evidence has to be that that is true, that he is required to be an emergency first responder, which he is not.

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He is an investigator that investigates crimes.

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I think he's required to protect and defend against terrorism and foreign intelligence threats to investigate major criminal offenses.

[00:07:05] Speaker 03:
It seems to me that that's substantial evidence that a driver's license is required by this particular officer to be able to fulfill that mission.

[00:07:13] Speaker 03:
But he had a driver's license.

[00:07:14] Speaker 01:
I mean, I think the issue is that the only requirement the agency imposed was a valid state driver's license.

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So the notice to the individual is that in order to do this job, you have to have a valid state driver's license.

[00:07:27] Speaker 01:
At no point did my client not have a valid state driver's license.

[00:07:29] Speaker 04:
I think there's some confusion here.

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And I intend to ask the government about it.

[00:07:33] Speaker 04:
But it seems to me that in the hierarchy of the military and its investigative entities, that the person at the top is not generally the pointy end of the spear.

[00:07:48] Speaker 01:
Correct.

[00:07:49] Speaker 01:
Well, that's the point.

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I mean, the director of the FBI is literally a law enforcement agent.

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I don't think I would expect him to drive to a scene of a shootout and engage in firefight there.

[00:07:59] Speaker 01:
And nor would my client be required to.

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What I want to say is that if NCIS wants to impose that level of obligation, then give my client a service vehicle, make him have a license to go anywhere, give him emergency equipment, make him respond to crisis situations.

[00:08:17] Speaker 01:
They did not.

[00:08:18] Speaker 04:
I imagine.

[00:08:19] Speaker 04:
That if, like any law enforcement officer, that if your client is on the scene and an event occurs, that it's his obligation to respond just like it is.

[00:08:31] Speaker 04:
Correct.

[00:08:32] Speaker 04:
Anyone.

[00:08:33] Speaker 01:
Right.

[00:08:34] Speaker 01:
Right.

[00:08:34] Speaker 01:
And the interesting thing is that the government, as proof, points to a Washington Post article, which I didn't know was proof.

[00:08:41] Speaker 01:
But the Washington Post article sums it up.

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It talks about the Navy shooter incident.

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The only reason NCIS responded is because they were literally in the building where the shooting occurred.

[00:08:51] Speaker 01:
The people that responded in the article were the FBI and the Metropolitan Police Department.

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Why?

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Because they are first responder law enforcement agencies.

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NCIS agents are not.

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If they were, they would have a different criteria, they would have different obligations.

[00:09:05] Speaker 04:
Your client carried a firearm?

[00:09:08] Speaker 01:
Yes, all 1811 series agents carry a firearm.

[00:09:11] Speaker 01:
But my client engages sometimes in investigations that can cause dangerous circumstances.

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And as a supervisor, he would normally go with other agents and be accompanied.

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He wouldn't normally respond to himself.

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And again, how is this supposed to be legitimate if I don't require you to bring your car to work and there's a shooting at Quantico?

[00:09:30] Speaker 01:
How do you anticipate I'm going to get down to Quantico if I'm not required to bring my car?

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I have to get on the metro, go back to my house, drive my vehicle to Quantico.

[00:09:39] Speaker 01:
That's the reality of what happened here.

[00:09:41] Speaker 01:
So that the agency, in order to justify this result, which was a little unclear, if you look at the opinion, I'm not quite sure again what he actually got punished for.

[00:09:51] Speaker 01:
Was it the revocation of the license on the DOD base?

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Because then he got no notice that that would result in discipline.

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Or was it the accumulation of tickets?

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Because he also got no notice that that accumulation of tickets would result in discipline.

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And because of that, he did not get the notice that he needed to get.

[00:10:08] Speaker 01:
And the second thing is, the question is whether there is a fundamental nexus.

[00:10:13] Speaker 01:
The cases cited, I think we need to focus on the severity of the cases that are cited by the judge herself, the administrative law judge.

[00:10:20] Speaker 01:
She cites Brown, which is a case where somebody who worked for Marine Corps Welfare and Recreation Department had an extramarital affair with a deployed Marine.

[00:10:32] Speaker 01:
So their job was to bring the message to help families who had people deployed, and he had an affair with someone.

[00:10:39] Speaker 01:
That was contrary to the mission.

[00:10:42] Speaker 01:
In Alredd versus Department of Health and Human Services, it was child molestation for a gentleman who was in an agency charged with protecting children.

[00:10:49] Speaker 01:
The court found that that was nexus to federal employment.

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In Giles versus United States, it was an IRS agent who was delinquent in his own tax returns.

[00:10:59] Speaker 04:
Your problem, I think, is that the reviewing person looked at it all and said, and the ALJ,

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and say, oh, this makes the agency look bad.

[00:11:15] Speaker 04:
He's overseas.

[00:11:17] Speaker 04:
He gets tickets.

[00:11:18] Speaker 04:
But they don't articulate that.

[00:11:20] Speaker 01:
Well, they didn't.

[00:11:20] Speaker 01:
And that's my fundamental point with the whole decision.

[00:11:24] Speaker 01:
I don't know whether or not, in the end, and I'll be honest, I don't know whether or not, in the end, this rises to the sufficiency for the punishment if there was notice, if he had some understanding that these things would result in this.

[00:11:39] Speaker 01:
But in this opinion, everything's backwards.

[00:11:41] Speaker 01:
Oh, we did this.

[00:11:42] Speaker 01:
Now we're going to figure out a reason why.

[00:11:44] Speaker 01:
And in the courts, one of the things I want to impress upon the court is another fundamental function you have is to address the propriety of a judicial decision.

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And this judicial decision is improper.

[00:11:57] Speaker 01:
It calls his defenses laughable.

[00:11:58] Speaker 01:
It calls him preposterous.

[00:12:00] Speaker 01:
It insults him personally.

[00:12:02] Speaker 01:
That suggests to me that that judge stopped listening

[00:12:06] Speaker 01:
the minute she saw the charges.

[00:12:08] Speaker 01:
And we know that because she uncritically accepted things like LEAP pay means that he's an emergency first responder.

[00:12:15] Speaker 01:
It has nothing to do with that.

[00:12:17] Speaker 01:
LEEP is designed to take care of the overtime requirement that would otherwise apply to law enforcement agents who need to be reasonably available.

[00:12:26] Speaker 01:
So my problem with the opinion is not, I think Judge Wallach, you've highlighted my problem with the opinion.

[00:12:32] Speaker 01:
I do not know at the end of the day whether NCIS tomorrow could pass a series of regulations saying this would result in discipline and maybe that would pass muster.

[00:12:40] Speaker 01:
I do know that this is in this case and you can't sit there and punish somebody and say well you should have known when we say well where is the regulatory authority of the notice that he's supposed to get.

[00:12:50] Speaker 03:
What do you mean he should have known?

[00:12:51] Speaker 03:
He should have known that his actions could lead to some sort of

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of punishment or discipline?

[00:12:59] Speaker 03:
Right.

[00:13:00] Speaker 03:
I mean... Setting aside the violations and also the tone of the opinion, which I agree with you.

[00:13:10] Speaker 03:
I have problems with that too.

[00:13:12] Speaker 03:
But setting that aside and looking at what we're here to discuss, the deciding official found that

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Mr. Griffin demonstrated poor judgment and decision-making, which is not congruent with expectations of senior NCIS management.

[00:13:29] Speaker 03:
And when your client got his first ticket, then his second, then his third, and he keeps going, he gets seven tickets in all, and he's accumulating points, he's a senior law enforcement officer,

[00:13:43] Speaker 03:
I think there's substantial evidence that he had notice that his actions were leading towards discipline.

[00:13:50] Speaker 01:
How?

[00:13:51] Speaker 01:
How would he have notice of that if the government doesn't tell him?

[00:13:54] Speaker 01:
It's not even in the table of penalties.

[00:13:56] Speaker 03:
It stands to reason that if I, for example, get a ticket and I get three points on my license as a driver, I know I have X amount left.

[00:14:06] Speaker 03:
Next week I get another.

[00:14:08] Speaker 03:
Third week I get another.

[00:14:11] Speaker 03:
I should be exercising some sort of judgment as a licensed driver and I would know that pretty soon my license is going to be suspended.

[00:14:22] Speaker 01:
And your punishment is in the civil administrative body that handles traffic.

[00:14:26] Speaker 03:
In other words... Yes, but now we have the agency looking at that activity and saying the series of steps, putting aside the suspension of the license and everything, the series of steps indicate poor judgment.

[00:14:40] Speaker 03:
not congruent with an NCIS officer.

[00:14:43] Speaker 01:
I don't understand how picking up... That's substantial evidence.

[00:14:47] Speaker 01:
Well, but I don't understand how that argument can be phrased when the agency's own regulations say that traffic tickets are not disciplinary in nature.

[00:14:55] Speaker 03:
I understand that there's a penalty... So setting that aside, the traffic ticket itself, and looking at this

[00:15:02] Speaker 03:
at this substantial evidence here that the deciding official, he sustained the proposed suspension on the basis of poor judgment.

[00:15:18] Speaker 01:
He didn't turn appropriately on one of them.

[00:15:20] Speaker 03:
Well, you're pointing a different interpretation than the deciding officer and what we have before us.

[00:15:27] Speaker 03:
But substantial evidence, I think, supports that decision.

[00:15:30] Speaker 01:
But they didn't take the action based on his tickets.

[00:15:33] Speaker 01:
I would understand that if they said, the reason we're doing this is because you accumulated traffic tickets.

[00:15:38] Speaker 01:
They took the action only based on the revocation.

[00:15:41] Speaker 01:
The only issue that they raised was the issue.

[00:15:43] Speaker 03:
No, they took it.

[00:15:45] Speaker 03:
Sir, I just got the reading to you.

[00:15:46] Speaker 03:
They took it on the basis of,

[00:15:47] Speaker 03:
of demonstrated poor judgment in decision-making that's not congruent with the expectations of senior NCIS management.

[00:15:56] Speaker 03:
That's different than the ticket.

[00:15:58] Speaker 01:
Well, but I don't, again, I want to go back, and I only have a few seconds.

[00:16:02] Speaker 01:
I want to go back.

[00:16:03] Speaker 02:
You don't have a few seconds, your counsel.

[00:16:05] Speaker 02:
Your red light is on.

[00:16:07] Speaker 01:
Oh, it says 26 here, but that's okay.

[00:16:10] Speaker 02:
Let's hear from the government, and we'll give you two minutes of rebuttal time.

[00:16:19] Speaker 04:
Is it reversible error if the AJ relied on traffic tickets that Mr. Griffin received outside the 24-month period associated with his suspension?

[00:16:33] Speaker 00:
Your Honor, the administrative judge did not rely on traffic tickets outside of the two-year period.

[00:16:37] Speaker 00:
She only looked at those traffic tickets when it came to penalty.

[00:16:40] Speaker 00:
So with respect to looking at the nexus requirement, she was limited to just the seven infractions we're talking about.

[00:16:47] Speaker 00:
And I want to remind the court and raise for the record that there were seven traffic infractions, four of which were speeding.

[00:16:53] Speaker 00:
Two of those were on base and two of those were off base.

[00:16:56] Speaker 00:
So I don't want to minimize the severity or the egregiousness of the number of traffic infractions occurring over a two-year period of time.

[00:17:05] Speaker 04:
In the red brief at 27, footnote 12, you say it's permissible for the AJ to look at all 15 traffic violations.

[00:17:13] Speaker 00:
for the purposes of penalty.

[00:17:16] Speaker 00:
So under the Douglas factors, for the purposes of penalty, she's able to look at past disciplinary record, past performance, et cetera, and so forth.

[00:17:23] Speaker 00:
Nexus, she did not look at that.

[00:17:25] Speaker 00:
She was limited to seven traffic infractions we're talking about here.

[00:17:28] Speaker 00:
And again,

[00:17:30] Speaker 00:
The misconduct was not necessarily just getting the tickets.

[00:17:34] Speaker 00:
The misconduct was the accumulation of the tickets, which led to the revocation of driving privileges in the host nation.

[00:17:41] Speaker 00:
And so the 15 tickets only come up when she's discussing penalty under the Douglas Factors.

[00:17:46] Speaker 04:
Yeah, I'm looking at 317 in the appendix, which is the Navy's table of penalties.

[00:17:55] Speaker 04:
Yes, Your Honor.

[00:18:00] Speaker 04:
Let me ask you a few questions about that.

[00:18:01] Speaker 04:
Was Mr. Griffin ever disciplined for any of his traffic infractions?

[00:18:06] Speaker 00:
He did not receive specific discipline from the agency for these seven traffic infractions, no.

[00:18:11] Speaker 00:
He did get prior discipline, I believe, in the form of a 30-day suspension back in 2009.

[00:18:17] Speaker 00:
And that was for misuse of a government vehicle.

[00:18:20] Speaker 00:
And it involved him.

[00:18:20] Speaker 04:
And I'm asking you about these.

[00:18:22] Speaker 00:
OK, about these seven.

[00:18:23] Speaker 00:
He didn't receive specific discipline for these seven.

[00:18:25] Speaker 04:
Was he disciplined for his?

[00:18:26] Speaker 04:
traffic infractions in successive order with increasingly severe punishments.

[00:18:31] Speaker 00:
I'm sorry, your question?

[00:18:32] Speaker 04:
Was he disciplined for his traffic infractions in successive order with increasingly severe punishments?

[00:18:39] Speaker 00:
He was not.

[00:18:40] Speaker 00:
So the guide that we're looking at here at appendix 317 is, in fact, a guide.

[00:18:45] Speaker 00:
It's not mandatory.

[00:18:46] Speaker 00:
It notes that supervisors are held to a higher standard.

[00:18:49] Speaker 00:
He's also held to a higher standard as a law enforcement official.

[00:18:52] Speaker 00:
But even looking at this table of penalties.

[00:18:53] Speaker 04:
How about answering my questions for me?

[00:18:56] Speaker 00:
Absolutely.

[00:18:56] Speaker 00:
Okay.

[00:18:57] Speaker 04:
Where on this penalty chart does the revocation of a DOD driver's license fall?

[00:19:02] Speaker 00:
So revocation of DOD driver's license is not listed here specifically.

[00:19:06] Speaker 00:
The agency looked at the bottom of page 317 at any traffic regulation, violation of a traffic regulation that caused injury to yourself or others, or damage to property or endangered safety of others, or that didn't cause injury or property damage and didn't endanger the safety of others.

[00:19:23] Speaker 00:
And in that case, reprimand to removal was appropriate.

[00:19:28] Speaker 00:
for anything, a traffic infraction that could have caused damage, injury or damage to yourself or to others.

[00:19:33] Speaker 04:
Did his traffic infractions endanger the safety or damage the property of Mr. Griffin or others?

[00:19:38] Speaker 00:
He did not damage the property of anyone else.

[00:19:40] Speaker 00:
But the agency would argue that there was a risk involved and that four of those tickets, again, were speeding tickets and one was an accident.

[00:19:48] Speaker 00:
And so the agency looked at this and they believed the misconduct fell under conduct that could cause injury to yourself or others.

[00:19:54] Speaker 04:
Is it reversible error if that

[00:19:57] Speaker 04:
AJ failed to distinguish between conduct that occurred while he was on duty and off duty.

[00:20:02] Speaker 00:
I don't believe it's reversible error, Your Honor.

[00:20:04] Speaker 00:
OK, what's your authority?

[00:20:06] Speaker 04:
I'm sorry, your question?

[00:20:07] Speaker 04:
What's your authority?

[00:20:09] Speaker 00:
It was a reversible error, because here on the chart of penalties, it says on or off duty.

[00:20:14] Speaker 00:
And so they could be considered under the chart of penalties together.

[00:20:17] Speaker 00:
And that's what the administrative judge did here, and that's what the agency did.

[00:20:21] Speaker 00:
So the seven infractions, there were a mixture of on and off duty violations.

[00:20:25] Speaker 00:
And remember, even though he was off duty, he was in Japan as an NCIS special agent.

[00:20:31] Speaker 00:
That's the entire reason he was in the host nation.

[00:20:33] Speaker 04:
Did the AJ make any distinction between the tickets he received on base

[00:20:38] Speaker 04:
which don't involve the laws of other nations, and the ones he received off base, which, of course, involved Japanese law.

[00:20:44] Speaker 00:
Not that I'm aware of, Your Honor.

[00:20:45] Speaker 00:
I do not believe she made a distinction that AJ was focused on the accumulation, the misconduct, what was considered the accumulation of the traffic ticket, which led to the revocation of driving privileges.

[00:20:56] Speaker 00:
And again, not just in Japan, but the revocation of driving privileges on military bases worldwide.

[00:21:01] Speaker 04:
OK, in the red break at 3, you

[00:21:06] Speaker 04:
include an explanation of what an emergency situation, emergence situation, is, what it might entail, terrorist actions, active shooter incidents, natural disasters, and so on.

[00:21:27] Speaker 04:
Who's the primary responder in those situations?

[00:21:31] Speaker 00:
So in those situations, when NCIS is involved as a naval facility, NCIS is responsible for responding to threats, et cetera.

[00:21:38] Speaker 00:
There may be others, like the police, who are responsible for responding.

[00:21:41] Speaker 04:
Who's the primary responder in those situations?

[00:21:44] Speaker 04:
I'll restate my question again.

[00:21:46] Speaker 00:
I'm unaware.

[00:21:48] Speaker 00:
Depending on where the location is and what the situation is, I believe that can change.

[00:21:52] Speaker 00:
And so I can't stand here and unequivocally tell you who would be considered first responder.

[00:21:58] Speaker 00:
And I note that the AJ did not use the language first responder.

[00:22:01] Speaker 00:
That language was introduced by Special Agent Griffin's brief.

[00:22:05] Speaker 00:
The language of first responder was not used.

[00:22:07] Speaker 00:
What language was used was emergent crisis.

[00:22:11] Speaker 00:
Defend Against Threats, and again, Federal Law Enforcement Agency.

[00:22:14] Speaker 00:
The mission of NCIS itself states that it's a federal law enforcement agency.

[00:22:19] Speaker 00:
So it's undisputed that the misconduct, which was the disregard for the law in the host country, and the agency's mission, which is law enforcement, that is where the administrative judge found a complete nexus between the misconduct and the agency's mission.

[00:22:35] Speaker 00:
And the agency's mission is undoubtedly federal law enforcement.

[00:22:38] Speaker 00:
It's listed in the mission statement itself.

[00:22:40] Speaker 00:
at appendix 493.

[00:22:42] Speaker 04:
So in the red brief at 14 and 15, and this is sort of curiosity on my part, really, you note that a traffic ticket, receiving a traffic ticket is contrary to his mission as a law enforcement officer.

[00:23:00] Speaker 04:
Does that apply to DOJ as well?

[00:23:03] Speaker 00:
Well, unfortunately, I learned yesterday that a DOJ employee who accumulates a large number of tracking tickets would absolutely have a problem, that it run contrary to our law enforcement mission.

[00:23:14] Speaker 04:
What's the citation for that?

[00:23:17] Speaker 00:
I don't have authority for that, Your Honor, but I'm happy to get it for you.

[00:23:20] Speaker 04:
As I say, that was curiosity on my part.

[00:23:23] Speaker 04:
In the red brief at 16, you rely on testimony that asserts that

[00:23:30] Speaker 04:
leap payments are intended to assure a special agent is available at any time to respond to emergencies.

[00:23:38] Speaker 04:
And the quote is, NCIS agents must be able and are paid a special supplement to respond to emergencies at any time.

[00:23:51] Speaker 04:
That's false, isn't it?

[00:23:54] Speaker 00:
No, Your Honor.

[00:23:55] Speaker 00:
And I'm sorry, where are you reading from?

[00:23:56] Speaker 00:
Page 16?

[00:23:57] Speaker 04:
Yeah, from the testimony.

[00:24:01] Speaker 00:
From the testimony quoted on page 16?

[00:24:04] Speaker 04:
From the deciding official and the proposing official?

[00:24:07] Speaker 00:
Yes, Your Honor.

[00:24:08] Speaker 00:
That is not false.

[00:24:09] Speaker 00:
Law enforcement agents do receive.

[00:24:11] Speaker 04:
Leap pay?

[00:24:12] Speaker 04:
Leap pay.

[00:24:13] Speaker 00:
Yes.

[00:24:14] Speaker 04:
for a supervisor is so that they'll respond at any time.

[00:24:18] Speaker 00:
So they'll be available to respond at any time or according to the agency's needs.

[00:24:24] Speaker 00:
And so Special Agent Griffin received 25% above the salary that another federal employee at that rate will receive to be available.

[00:24:31] Speaker 04:
That's availability pay.

[00:24:33] Speaker 04:
It's not responder pay, is it?

[00:24:35] Speaker 00:
I'm not sure I know the distinction, Your Honor.

[00:24:37] Speaker 00:
That pay is for law enforcement officials.

[00:24:41] Speaker 00:
As was conceded, he carries a firearm.

[00:24:44] Speaker 04:
OK, let me put it this way.

[00:24:45] Speaker 04:
It's not first responder pay.

[00:24:47] Speaker 00:
No one has called it first responder pay.

[00:24:50] Speaker 00:
But it is availability pay for him to be available under the mission to respond to threats and crisis as they arise and as the agency needs.

[00:25:02] Speaker 04:
Do you know anywhere in the regs where it says an NCIS agent has to be available as a first responder 24-7?

[00:25:09] Speaker 00:
The words first responder do not appear anywhere in a reg, Your Honor.

[00:25:13] Speaker 00:
But the testimony here was clear that he had to be available outside of business hours.

[00:25:17] Speaker 04:
Excuse me.

[00:25:18] Speaker 04:
I'm talking.

[00:25:19] Speaker 04:
That's where the AJ goes astray, among a number of others.

[00:25:24] Speaker 04:
Do you disagree with that?

[00:25:27] Speaker 00:
I think the administrative strategy here is to dissect

[00:25:32] Speaker 00:
all of the findings made by the administrative judge, some of which were unnecessary to find a nexus.

[00:25:38] Speaker 04:
Some of which came close to scandalous if they were in a complaint.

[00:25:42] Speaker 00:
And I would proffer, Your Honor, that the administrative judge had to make a determination regarding nexus.

[00:25:49] Speaker 00:
The administrative judge found that there was indeed a nexus based on the misconduct being inconsistent with the mission of the agency.

[00:25:56] Speaker 00:
Nothing further was required.

[00:25:58] Speaker 00:
Even under the law, job performance was irrelevant.

[00:26:00] Speaker 00:
All these other things that are being introduced were findings she made in response to arguments raised at the hearing by Special Agent Griffin.

[00:26:07] Speaker 00:
But they weren't necessary to find a next.

[00:26:09] Speaker 04:
I think the government's strong position is what I said to your friend on the other side.

[00:26:14] Speaker 04:
And that is, there's a bad flavor when the host country is seeing somebody pretty high up doing minor things.

[00:26:24] Speaker 04:
I mean, I assume that they're not

[00:26:29] Speaker 04:
There's no real damage that he's only going 10 miles an hour plus, he's going 25 in a 15 zone or whatever.

[00:26:38] Speaker 04:
But I agree there's a bad flavor to that which can make the NCIS look bad.

[00:26:45] Speaker 04:
The problem with that is that's not what the AJ did.

[00:26:49] Speaker 00:
Well, the AJ did make specific findings that the agency was embarrassed.

[00:26:52] Speaker 00:
And so again, I think the AJ went beyond what she needed to do for a finding of nexus.

[00:26:57] Speaker 04:
I don't think she fairly articulated it that way, though.

[00:27:00] Speaker 02:
Is it also your argument that we review decisions, not opinions?

[00:27:09] Speaker 00:
That you review the decision.

[00:27:11] Speaker 00:
Decisions, not opinions.

[00:27:12] Speaker 00:
Yes.

[00:27:15] Speaker 00:
And so that issue here is the decision of the MSPB.

[00:27:18] Speaker 00:
And the MSPB found that the agency established a nexus, and at the penalty of demotion, not removal, the progressive discipline of demotion was reasonable.

[00:27:27] Speaker 00:
And we believe that the administrative judge and the MSPB got it right.

[00:27:32] Speaker 03:
Well, they got it right because that decision is supported by substantial evidence.

[00:27:37] Speaker 00:
Absolutely.

[00:27:38] Speaker 00:
Even the additional findings, which, again, were above and beyond what was required for nexus and were made to respond to arguments raised by Spatial Asian Griffin at the hearing, even those additional findings, including that the agency was embarrassed, were supported by substantial evidence.

[00:27:54] Speaker 00:
There were agency witnesses who testified that the agency was embarrassed.

[00:27:57] Speaker 00:
He was the second highest ranking official in the host nation.

[00:28:00] Speaker 00:
There was clear testimony that Japanese police issued a number of those tickets.

[00:28:05] Speaker 00:
And so there's no question that the agency was embarrassed.

[00:28:09] Speaker 00:
And that substantial evidence supports those findings, even though they were in addition to the necessary findings that the mission of the agency.

[00:28:17] Speaker 03:
And am I correct that a general charge here was conduct on becoming an officer?

[00:28:22] Speaker 00:
Yes.

[00:28:23] Speaker 00:
which was then defined as blatant disregard for the law in a host nation.

[00:28:28] Speaker 00:
And that was based on the accumulation of a number of traffic violations over a two-year period.

[00:28:35] Speaker 00:
And I know Special Agent Griffin had been there since 2011.

[00:28:38] Speaker 00:
These tickets started in 2014.

[00:28:40] Speaker 00:
So the argument that he misunderstood a sign, et cetera, really doesn't hold much weight or is without merit.

[00:28:47] Speaker 00:
He was there for three years and able to obey the law perfectly.

[00:28:50] Speaker 00:
And then for some reason, for two years straight, he consistently accumulated a number of traffic infractions.

[00:28:58] Speaker 00:
As your honor, we would submit that the decision is sound, that it's supported by substantial evidence, and that this court should affirm the decision that substantial evidence supports.

[00:29:08] Speaker 00:
The nexus was established, and that the penalty of demotion was reasonable.

[00:29:11] Speaker 04:
What are we to do about the AJ's terrible opinion?

[00:29:19] Speaker 00:
I'm not sure what you do, Your Honor.

[00:29:20] Speaker 00:
Unfortunately, there is no mechanical guide for the AJs on how to write these opinions.

[00:29:26] Speaker 00:
And this comes up more often in the Douglas Factors, whether they consider the factors, et cetera.

[00:29:30] Speaker 00:
And the case law is clear that they don't have to go through every single thing mechanically.

[00:29:33] Speaker 00:
So I'm not sure what we impose on the administrative judge, but I think what we do is focus on the findings that were made.

[00:29:39] Speaker 00:
And the findings that were made are all supported by substantial evidence.

[00:29:42] Speaker 00:
And so even if they're not in the proper order or if there are additional findings made that didn't need to be made, particularly in response to arguments that were raised, they're still supported by substantial evidence.

[00:29:52] Speaker 00:
And that's our standard.

[00:29:52] Speaker 00:
And so I think this court has to affirm.

[00:29:55] Speaker 02:
Thank you, counsel.

[00:29:57] Speaker 00:
Thank you, Your Honor.

[00:29:58] Speaker 02:
Mr. Burns, two minutes.

[00:29:59] Speaker 02:
Two minutes for rebuttal.

[00:30:01] Speaker 01:
I think I had three.

[00:30:02] Speaker 02:
Well, you well exceeded your total time.

[00:30:06] Speaker 02:
So we are, by a matter of grace, giving you two minutes.

[00:30:09] Speaker 01:
Thank you, Your Honor.

[00:30:11] Speaker 01:
A couple of things I just want to say.

[00:30:14] Speaker 01:
In terms of the 15 versus the 7, if you look at the judge's opinion, she decided on the penalties appropriateness based on the communications by the two senior persons who said they were embarrassed.

[00:30:26] Speaker 01:
So all things flowed together.

[00:30:28] Speaker 01:
She didn't dice that out.

[00:30:29] Speaker 01:
So she did take into account the 15 tickets and actually finding both nexus and a penalty.

[00:30:36] Speaker 01:
As we pointed out in our brief, she didn't take into account many of the Douglas factors appropriately.

[00:30:42] Speaker 01:
The other thing we wanted to point out is the idea of embarrassment.

[00:30:46] Speaker 01:
We actually asked the officials themselves whether they were embarrassed, and they could not confirm that.

[00:30:52] Speaker 01:
And in fact, again, the distinction I want to make is that he was never punished for getting the traffic tickets.

[00:30:59] Speaker 01:
He was punished for the revocation of the license.

[00:31:02] Speaker 01:
And I know that tickets flow into that, and we can blend that.

[00:31:05] Speaker 01:
But we need to be a little bit clear about what he was punished for, because this punishment wasn't imposed in Japan.

[00:31:11] Speaker 01:
There was no embarrassment in Japan.

[00:31:14] Speaker 01:
There was no Japanese official calling up saying, we were embarrassed by what you did.

[00:31:18] Speaker 01:
There was no repercussions other than paying fines.

[00:31:22] Speaker 01:
If getting traffic tickets were a sign of poor judgment, frankly, I don't think I could practice law, especially with the speed here.

[00:31:31] Speaker 04:
Lawyers don't have to have good judgment.

[00:31:33] Speaker 01:
Obviously not, Your Honor.

[00:31:35] Speaker 01:
But what I'm trying to say is that that's a little bit of a stretch, particularly when you're talking about nexus for federal employment, which requires something a little more substantial.

[00:31:44] Speaker 01:
The final thing I'll say, and I want to conclude on this because I think it is important, what can you do?

[00:31:47] Speaker 01:
Because I think that's important however you rule.

[00:31:50] Speaker 01:
An opinion like this shouldn't go unchastened.

[00:31:53] Speaker 01:
No judge should denigrate in the manner that Mr. Griffin was denigrated in an opinion the way this was done.

[00:32:00] Speaker 01:
And this court does have a responsibility.

[00:32:02] Speaker 01:
So I urge you that even if you decide against this, that you mention that in the opinion because I represent federal employees who come there for

[00:32:10] Speaker 01:
their version of justice.

[00:32:11] Speaker 01:
And none of them should be belittled for seeking the opportunity to do so.

[00:32:14] Speaker 02:
Thank you.

[00:32:15] Speaker 02:
Thank you, counsel.

[00:32:16] Speaker 02:
Case is submitted.