[00:00:00] Speaker 04:
Our next case this morning is number 21, 2098.

[00:00:02] Speaker 04:
Okay, Mr. Bonk.

[00:00:06] Speaker 02:
Good morning, Your Honors.

[00:00:07] Speaker 02:
May it please the court, Christopher Bonk, for petitioner, Mr. William Coy.

[00:00:11] Speaker 02:
At this time, I'd like to reserve three minutes for rebuttal.

[00:00:15] Speaker 02:
In this case, Petitioner Mr. Coy has been fired twice for the same allegations by the agency without the first removal action ever being rescinded by the agency or returned by a final decision by the MSPB or another court.

[00:00:29] Speaker 05:
What's the status of the appeal that was before the board with respect to the first termination?

[00:00:35] Speaker 02:
It still remains pending on PFR, Your Honor.

[00:00:38] Speaker 02:
So still to date, it is pending on PFR.

[00:00:41] Speaker 02:
Mr. Coy was returned to an interim relief status upon filing of that PFR by the agency.

[00:00:48] Speaker 02:
Subsequently, was terminated again with a second termination action.

[00:00:52] Speaker 02:
So that first termination action was never rescinded.

[00:00:55] Speaker 02:
So he was not placed back in the status quo ante pursuant to that first termination action.

[00:01:03] Speaker 02:
Now, the two main issues I want to address here today.

[00:01:06] Speaker 04:
So why should it make a difference that there was a termination that was set aside on procedural grounds?

[00:01:14] Speaker 04:
Why should that bar a second termination?

[00:01:18] Speaker 02:
Judge, because it was not yet set aside.

[00:01:20] Speaker 02:
There has been no final termination.

[00:01:23] Speaker 04:
What sense does that make?

[00:01:25] Speaker 04:
Why should it make any difference?

[00:01:27] Speaker 02:
Your honor, the first termination, there hasn't been a final decision.

[00:01:30] Speaker 04:
And the reason that that's impactful here is because... Well, there's nothing that's going to help him in this case.

[00:01:40] Speaker 04:
regardless of the outcome of the first termination, right?

[00:01:45] Speaker 04:
How would it help him in this case?

[00:01:47] Speaker 02:
I disagree, Your Honor.

[00:01:48] Speaker 02:
The possibility remains of possible inconsistent decisions here.

[00:01:52] Speaker 02:
The first termination action still has no final decision from the MSPB, so it's sitting on PFR at the board as we speak.

[00:01:58] Speaker 02:
The MSPB still, with finding on the PFR there, could uphold the due process determination.

[00:02:05] Speaker 02:
It could not.

[00:02:05] Speaker 02:
It could still issue some determination of the merits.

[00:02:08] Speaker 02:
The merits are the same exact merits that are at the termination issue here today.

[00:02:12] Speaker 01:
So the impact is that... I thought that the only issues before the board were whether there was a due process violation.

[00:02:20] Speaker 01:
Is that right?

[00:02:22] Speaker 02:
So in part, Judge, the due process violation is raised to the board in the agency's PFR, certainly.

[00:02:31] Speaker 02:
The merits are briefed fully, of course, for that action.

[00:02:37] Speaker 02:
And so there's no reason to believe that the board would not be able to make a determination, make a finding on merit.

[00:02:43] Speaker 00:
Has anyone challenged the merits?

[00:02:45] Speaker 02:
Judge, Mr. Coy did file a cross-PFR that does raise the merits concern because the merits are discussed at length in the judge's initial decision of finding the due process violation.

[00:02:57] Speaker 02:
So it is not outside the realm of possibility that the merits would be at issue in the board's determination on that first termination.

[00:03:04] Speaker 01:
Even though the merits weren't addressed by the administrative judge in the first decision.

[00:03:09] Speaker 02:
I'm sorry, Your Honor, I did not hear the full question.

[00:03:11] Speaker 01:
Were the merits addressed

[00:03:14] Speaker 01:
by the administrative judge in the first decision, or did the judge simply remand for due process reasons?

[00:03:21] Speaker 02:
The judge in the first decision, Your Honor, did discuss the merits at some length and not issue a finding on them because it was... How could the appellate review issue a finding on the merits if the fact finder did not?

[00:03:37] Speaker 01:
How could the board address the merits if the fact finder did not?

[00:03:43] Speaker 02:
The administrative judge in the first petition for review made, we'll say, assertions of how she would have come out on the merits had she not dismissed the matter for a petition for review.

[00:03:56] Speaker 02:
So in our mind, it is certainly possible that the board still addresses the merits.

[00:04:02] Speaker 02:
And again, the merits were raised in Mr. Coy's cross-PFR filed at the board subsequent to the agency's petition for review of that first removal action.

[00:04:13] Speaker 05:
What happens if you win before the board in the first termination action?

[00:04:19] Speaker 02:
What do you get?

[00:04:21] Speaker 02:
So in the first termination action, Mr. Coy would get his back pay.

[00:04:26] Speaker 02:
He would get benefits from that.

[00:04:27] Speaker 02:
He still has not received that to date.

[00:04:29] Speaker 05:
And then you go on to the merits?

[00:04:33] Speaker 02:
Excuse me, the merits of the second termination, Your Honor?

[00:04:36] Speaker 05:
Of the first termination.

[00:04:38] Speaker 02:
So if Mr. Coy prevails in the

[00:04:42] Speaker 02:
I may have misunderstood the question, Your Honor.

[00:04:44] Speaker 02:
I'm thinking on the terms of due process.

[00:04:47] Speaker 02:
If Mr. Coy prevails on the merits of the first action, then I think we've got a clear situation where there's... If you prevail at the board.

[00:04:57] Speaker 02:
Yes, Your Honor.

[00:04:58] Speaker 02:
So if Mr. Coy prevails at the board in the first termination action and the merits are addressed, then I think... But the board can address the merits, right?

[00:05:07] Speaker 05:
The merits have not been addressed with respect to the first termination.

[00:05:12] Speaker 05:
Is that correct?

[00:05:14] Speaker 02:
No, Your Honor.

[00:05:14] Speaker 02:
So the merits were argued, of course, in the first appeal.

[00:05:19] Speaker 02:
The judge discussed the merits at length in the initial decision, ultimately issuing a dismissal or reversal of the decision specifically on the due process.

[00:05:29] Speaker 05:
Not on the merits, based on the procedural ground of due process.

[00:05:33] Speaker 02:
That's correct, Your Honor.

[00:05:34] Speaker 05:
So this is what my point is.

[00:05:35] Speaker 05:
So if you win, and it

[00:05:38] Speaker 05:
They sent what they remand.

[00:05:40] Speaker 05:
Now you went on due process, and now a decision has to be made on the merits, correct?

[00:05:45] Speaker 02:
No, Your Honor.

[00:05:46] Speaker 02:
Generally, what I would expect to happen if the board affirms on the due process issue is that Mr. Coy's overturning of that first termination actually would actually take effect.

[00:05:56] Speaker 02:
And he would actually return the status quo ante for that first termination.

[00:06:00] Speaker 02:
He would actually get his back pay from the time of that first termination.

[00:06:02] Speaker 04:
Yeah, but only until the time of the second termination.

[00:06:05] Speaker 02:
That's correct, Your Honor.

[00:06:06] Speaker 02:
Yes, absolutely.

[00:06:09] Speaker 02:
And again, but again, to our point is when that happens though, to petitioner's position, the second termination actually cannot have any force or effect until that first removal action is resolved.

[00:06:20] Speaker 02:
So at the time that... Why?

[00:06:22] Speaker 05:
What does a first termination have to do with the second hearing, the second action?

[00:06:29] Speaker 02:
The same action, Your Honor.

[00:06:30] Speaker 05:
I know.

[00:06:31] Speaker 05:
So what impact?

[00:06:35] Speaker 05:
What can be the possible impact of the first termination, of the board decision on the first termination that would cause a reversal on the decision on the second termination?

[00:06:48] Speaker 02:
So the board impact on the first termination again I think prevents or precludes the second termination from having any force or effect.

[00:06:58] Speaker 02:
So where that first termination action, if it gets resolved,

[00:07:05] Speaker 02:
in the sense that the due process violation is upheld by the board and the first termination action is overturned, not until that final action actually takes effect may the second termination actually take effect.

[00:07:18] Speaker 04:
So in petitioner's position... When you're talking about his getting a couple of years of back pay under that theory that he wouldn't get if we affirmed the board here.

[00:07:29] Speaker 02:
I don't believe so, Your Honor.

[00:07:30] Speaker 04:
I think the only back pay that would be awarded in the first termination action if he receives it on the... Well, if he said that the second termination action couldn't be commenced until the first one was final, then he'd get back pay up until the time of the second termination action.

[00:07:47] Speaker 04:
when he was terminated, pursuant to the second termination action, right?

[00:07:50] Speaker 02:
Oh, yes, Your Honor.

[00:07:51] Speaker 02:
Sorry, I misunderstood your question.

[00:07:52] Speaker 02:
There would be a reinstatement to the status quo ante.

[00:07:55] Speaker 02:
Admittedly, that's not back to his normal position.

[00:07:59] Speaker 02:
The agency had placed him on an interim release status, which would, of course, be mitigated by a petitioner's efforts.

[00:08:07] Speaker 02:
So it is possible that there would be additional back pain.

[00:08:10] Speaker 01:
The interim release order would remain in effect in the first case.

[00:08:16] Speaker 01:
notwithstanding resolution of the second case, right?

[00:08:20] Speaker 02:
Yes, Your Honor.

[00:08:21] Speaker 01:
Why isn't that then something that takes care of Mr. Coy's concerns?

[00:08:27] Speaker 02:
I'm not sure that I'm understanding the question, Your Honor.

[00:08:29] Speaker 01:
I mean, the interim relief statute, at first when I was looking at this case, I thought maybe that prevented the second action.

[00:08:35] Speaker 01:
But instead, if the interim relief order still remains in effect,

[00:08:41] Speaker 01:
and in the first case, he gets whatever recovery he would have gotten under the interim relief order.

[00:08:47] Speaker 01:
Why does it matter that the second action has occurred in his proceeding?

[00:08:52] Speaker 01:
He's still going to get the money owed to him under the interim relief order in the first case.

[00:09:00] Speaker 02:
Judge, I think this goes back to the issue of

[00:09:05] Speaker 02:
this court's decisions and all the way back to Wharton Stone and the like, where there is a due process violation, as at least has been tentatively found in the first matter, Mr. Coyne and other appellants are not only entitled to a new constitutionally correct proceeding, but a new constitutionally correct proceeding.

[00:09:22] Speaker 01:
And this, at this stage... But the second case is a new constitutionally correct proceeding.

[00:09:30] Speaker 01:
You seem to be suggesting that it's a constitutionally correct proceeding that must start at a particular time.

[00:09:37] Speaker 02:
Your Honor, not that it must start at a particular time necessarily, other than it has to engage after the resolution of the first matter.

[00:09:43] Speaker 02:
But I think this court's case law and the board as well have articulated that what it means by a new constitutionally correct proceeding

[00:09:52] Speaker 02:
includes rescission or actual revocation of that first action.

[00:09:55] Speaker 02:
There can't be a new proceeding while the first action is still in effect.

[00:09:59] Speaker 05:
And so... Why not?

[00:10:03] Speaker 02:
Your Honor, this goes back to decisions back in

[00:10:07] Speaker 02:
I think in the Howard case in 2017, this court addressed that issue.

[00:10:11] Speaker 02:
There was a cancellation for removal.

[00:10:13] Speaker 02:
And the agency in that case, there was a wholly cancellation of the first removal action.

[00:10:19] Speaker 02:
The agency eventually moved forward with the second removal that included charges from that.

[00:10:23] Speaker 04:
There's no authority from this court that having a second removal action commenced while an appeal is pending from the first removal action is improper, right?

[00:10:35] Speaker 02:
Not in those words, Your Honor, no.

[00:10:36] Speaker 04:
Right.

[00:10:37] Speaker 04:
And I read the board decisions.

[00:10:39] Speaker 04:
The only one that seems to me that supports you is, I forgot the name of the case, but it seems to be just general dictum about you can't have a second proceeding until the first one is finished.

[00:10:52] Speaker 04:
Whereas Shoemate and other cases say if the ground for setting aside the first decision was a procedural ground, that doesn't prevent you

[00:11:01] Speaker 04:
from starting the second proceeding while the first appeal was still pending, right?

[00:11:05] Speaker 02:
I disagree, Your Honor.

[00:11:06] Speaker 02:
So, Judge, I believe the case you're referring to is Hanner.

[00:11:09] Speaker 02:
And one of the points on Hanner is it doesn't stand alone.

[00:11:12] Speaker 02:
It does build off the board's prior determination in Parker in 1990.

[00:11:16] Speaker 02:
I described Shoemate correctly, right?

[00:11:19] Speaker 02:
So Shoemate and Barcliffe are cases close in time.

[00:11:23] Speaker 02:
I think they're very easily distinguishable from what we're looking at here.

[00:11:27] Speaker 02:
Shoemate and Barcliffe both deal with indefinite suspensions imposed because of suspended security clearances of those employees.

[00:11:37] Speaker 02:
those types of situations, I think, are procedurally distinct.

[00:11:40] Speaker 02:
I think the board's processing of those shows that the board recognizes they're procedurally distinct.

[00:11:44] Speaker 02:
And that goes back, of course, all the way back to Egan on the limit on review of these types of cases where there's a suspension for security clearance matters.

[00:11:57] Speaker 02:
In this court, look at that.

[00:11:58] Speaker 04:
Suppose the first appeal here had been just an appeal by the government and limited to the procedural issue.

[00:12:06] Speaker 04:
Do you agree that under those circumstances, even while the appeal was pending, the government could have started a second termination proceeding?

[00:12:13] Speaker 02:
No, Your Honor.

[00:12:14] Speaker 02:
If the action had been appealed as it was here and the agency had not rescinded the action, no.

[00:12:22] Speaker 04:
Why?

[00:12:22] Speaker 04:
What sense does that make?

[00:12:24] Speaker 02:
I see that my time is... No, no, go ahead.

[00:12:32] Speaker 02:
As it stands, Your Honor, there's two concurrent actions at the same time.

[00:12:35] Speaker 02:
Mr. Coy is effectively being punished concurrently for the same action.

[00:12:40] Speaker 04:
He's not going to be punished twice.

[00:12:44] Speaker 04:
There will be two separate issues.

[00:12:47] Speaker 04:
One is his entitlement to back pay up until the time of the second termination.

[00:12:51] Speaker 04:
And the second one is the validity of the second termination.

[00:12:54] Speaker 04:
Why is that a bad situation?

[00:12:57] Speaker 04:
What's the problem?

[00:12:59] Speaker 02:
The problem, Your Honor, is because I think at this time there is an imposition of two separate termination actions.

[00:13:05] Speaker 04:
So at this stage, as we sit here now... I'm going to ask you to address my hypothetical.

[00:13:10] Speaker 04:
The only issue with respect to the first termination action is procedural.

[00:13:15] Speaker 04:
The government appeals and says there wasn't a due process violation here.

[00:13:19] Speaker 04:
What is the problem with terminating him a second time when the first action is pending?

[00:13:26] Speaker 02:
Where the first action is pending, Your Honor, it's our position that it's wholly precluded here.

[00:13:33] Speaker 01:
By what?

[00:13:34] Speaker 01:
What source of law?

[00:13:37] Speaker 02:
Decades back of case law from this court supporting that approach and the board as well, Your Honor.

[00:13:42] Speaker 04:
What is the case law from our court supporting that approach?

[00:13:45] Speaker 04:
You just admitted that this was an issue of first impression for us.

[00:13:49] Speaker 02:
In my mind, Your Honor, if I give that impression, my apologies.

[00:13:53] Speaker 02:
I think this Board, going back to review of these situations, mentioned, for example, with the Howard case I began to mention previously, this Court looked at a situation where there was an initial removal action.

[00:14:08] Speaker 02:
The agency wholly canceled that removal action, proceeded with a second removal only afterwards, and this Court noted that this decision and reward

[00:14:15] Speaker 02:
explicitly envisions that an agency follow the very steps taken there.

[00:14:19] Speaker 02:
That is the correct procedure.

[00:14:21] Speaker 02:
That is the process that the agency should take.

[00:14:22] Speaker 02:
This court's Howard case from 2017, Your Honor.

[00:14:31] Speaker 02:
I see that my time has concluded for rebuttal.

[00:14:36] Speaker 04:
If there are no further questions, we'll give you two minutes for rebuttal.

[00:14:40] Speaker 03:
Thank you, Your Honors.

[00:14:44] Speaker 03:
Thank you, Your Honor, and may it please the court.

[00:14:48] Speaker 03:
I'd like to address a few points.

[00:14:50] Speaker 03:
So with respect to the board case law, as Your Honor was mentioning, the cases that are most on point are cases like Shoomey, where there actually are two adverse actions.

[00:15:03] Speaker 03:
there's a petition for review pending and the agency does not wait for that first action to go final.

[00:15:11] Speaker 03:
That's point number one, but the more fundamental point that we made in our brief is there's no basis, let alone a persuasive basis in the law for this rule that petitioners created.

[00:15:26] Speaker 03:
I mean, for example... Well, can I ask you a question?

[00:15:29] Speaker 01:
I mean, one of the things that was said that to me seemed most compelling was that perhaps there's some chance that in the first case the merits would be addressed by the board.

[00:15:39] Speaker 01:
How do you respond to that?

[00:15:41] Speaker 03:
Well, we're not sure how the merits would be addressed because in the first action, the basis of the board's decision was a violation of due process and harmful procedure error essentially under the Stone Ward

[00:15:56] Speaker 03:
line of cases.

[00:15:58] Speaker 03:
And so if that's affirmed, then Mr. Coy is going to essentially likely be provided back pay based on... But what if it's not?

[00:16:07] Speaker 01:
What if it's not affirmed?

[00:16:09] Speaker 01:
Then what?

[00:16:10] Speaker 01:
Would the board possibly go into the merits based on the cross appeal?

[00:16:15] Speaker 03:
Well, at that point, the board itself, the administrative judge never reached the merits.

[00:16:21] Speaker 03:
So there were certainly within the opinion

[00:16:24] Speaker 03:
The administrative judge made strong statements based upon the evidence, but if you look at the opinion, that was much more in the context of there was, for example, a Whistleblower Protection Act violation.

[00:16:38] Speaker 03:
I mean, the board judge certainly looked at the evidence and provided statements, but they never reached the charges specifically in that first decision.

[00:16:48] Speaker 04:
Suppose the administrative judge had reached the charge.

[00:16:51] Speaker 04:
it had alternative holdings.

[00:16:54] Speaker 04:
One, it was a procedural due process violation.

[00:16:57] Speaker 04:
But two, if I'm wrong about that, I'd affirm on the merits.

[00:17:01] Speaker 04:
And there's a cross appeal by the employee.

[00:17:05] Speaker 04:
That creates a situation where there might be inconsistent results between the two proceedings, right?

[00:17:12] Speaker 03:
Well, you know, I'm not sure.

[00:17:14] Speaker 03:
I mean, I guess it would have to be played out whether or not that that could

[00:17:19] Speaker 03:
that could possibly be the case.

[00:17:21] Speaker 03:
But here, what we have, it seems like there's two potential outcomes in that first proceeding.

[00:17:27] Speaker 03:
It's either the full board would affirm on the due process, that there was a due process violation.

[00:17:40] Speaker 03:
And that was the basis of the government's petition for review.

[00:17:43] Speaker 00:
In that case, there would- But didn't Coy have a cross petition here?

[00:17:47] Speaker 00:
And what was that based on?

[00:17:49] Speaker 03:
Well, it was based on a number of bases.

[00:17:54] Speaker 03:
It was based on, there was an EEO complaint, there was whistleblower protection, there was also a appealable issue on the merits of the removal itself.

[00:18:11] Speaker 03:
But that wasn't, the administrative judge there never actually reached that particular issue.

[00:18:18] Speaker 05:
There were arguments on the merits in the first termination case, right?

[00:18:25] Speaker 03:
I'm sorry, Your Honor.

[00:18:26] Speaker 03:
There were arguments on the merits.

[00:18:28] Speaker 03:
There were clearly arguments on the merits here, but that's, so taking one step back too, I mean, in this appeal, there was never, there's never an argument made about this inconsistent decision.

[00:18:41] Speaker 04:
But isn't the answer to the question that we ought to apply the general rules of race, judicata and collateral asap, and that if in this case we decide that he was properly removed,

[00:18:53] Speaker 04:
and the first proceeding was still pending, that would be collateral estoppel on that proceeding.

[00:19:00] Speaker 03:
In this proceeding?

[00:19:01] Speaker 03:
Yes, wouldn't it?

[00:19:03] Speaker 03:
Well, I'm not sure it would actually be race judicata here because... How is that true?

[00:19:10] Speaker 04:
If we decide in this proceeding that he was properly removed on the basis of the charge, that becomes

[00:19:20] Speaker 04:
as long as the first proceeding is still pending, that becomes collateral stop on the first proceeding, doesn't it?

[00:19:25] Speaker 04:
That determination?

[00:19:26] Speaker 03:
Well, here in this particular... Answer my question.

[00:19:29] Speaker 03:
Well, I'm trying to answer it, so my point is that I don't think it necessarily would for the fact that he hasn't, with respect to, for example, issue preclusion, he hasn't raised... The only merits... He doesn't have to raise it until the grounds for issue preclusion exist.

[00:19:48] Speaker 04:
Once

[00:19:48] Speaker 04:
Once we decide here that he loses, that becomes collateral estoppel in the first proceeding.

[00:19:54] Speaker 03:
Or if he wins, it becomes collateral estoppel in the first proceeding.

[00:19:57] Speaker 03:
Well, even if that's the case, what is the violation?

[00:20:00] Speaker 03:
Is that a due process violation?

[00:20:02] Speaker 03:
Because in the second proceeding, he had full due process.

[00:20:05] Speaker 03:
He had noticed an opportunity to raise his issue.

[00:20:09] Speaker 04:
All I'm suggesting to you is that the situation that the board has dealt with in these cases

[00:20:16] Speaker 04:
can be resolved by the ordinary application of rules of collateral estoppel and race judicata.

[00:20:22] Speaker 04:
And there's nothing in those principles that prevents starting a second proceeding while the first one is pending.

[00:20:29] Speaker 04:
And the first one is not race judicata or collateral estoppel until the new comes final.

[00:20:35] Speaker 01:
Does the government agree that its facts were different here?

[00:20:38] Speaker 01:
Let's say the first case, the administrative judge

[00:20:43] Speaker 01:
didn't reverse for procedural reasons, but instead reversed on the merits.

[00:20:48] Speaker 01:
And in that case, certainly, the government would not be able to remove Mr. Coy for the same reasons, right?

[00:20:55] Speaker 01:
They couldn't instigate a second case, right?

[00:20:58] Speaker 03:
Well, I mean, I think that there are board cases saying that.

[00:21:02] Speaker 03:
I mean, where is it?

[00:21:03] Speaker 04:
But I think that- Would the government appeal if it lost on the merits in the first case before the A.J.?

[00:21:09] Speaker 03:
Would we have?

[00:21:10] Speaker 03:
Would you?

[00:21:11] Speaker 03:
We could have.

[00:21:13] Speaker 03:
Yes, we could have appeal to the full board if we lost on the merits.

[00:21:18] Speaker 03:
But to answer Your Honor's question, I think there are board case laws saying that there can't be too

[00:21:25] Speaker 03:
proceedings on the merits.

[00:21:26] Speaker 03:
But again, that's not the procedural issue we're dealing with here.

[00:21:30] Speaker 01:
I wanted to know the limits of what you're asking for today.

[00:21:34] Speaker 01:
Do you understand that?

[00:21:37] Speaker 01:
I see the government's position of wanting to be able to file a second case in the circumstances of this scenario where there hasn't been a quorum at the board and time is passing and there's just a decision for due process violations

[00:21:55] Speaker 01:
But I wanted to know if this, an impact of a decision in your favor today, would result in a ruling where any time the government appealed, they could just initiate a new removal action against a government employee.

[00:22:09] Speaker 01:
So that's why I'm asking you this hypothetical, which is quite important.

[00:22:13] Speaker 01:
Do you want to answer the question differently or the same?

[00:22:17] Speaker 03:
So my answer would be, in this case, we've limited our arguments to the basis here that it's arising out of a Stone Ward violation, which is procedural.

[00:22:27] Speaker 03:
And that's all we've put forth is what the rule should be.

[00:22:32] Speaker 03:
With respect to

[00:22:35] Speaker 03:
your honors hypothetical about, about essentially two, um, two actions based upon the merits.

[00:22:43] Speaker 03:
That's not, that's not any relief we've sought here.

[00:22:46] Speaker 03:
It's not an argument we've put forth that the agency would need to, that that should be allowed.

[00:22:53] Speaker 03:
Um, and so for example, in a, in a ruling, the ruling can certainly be cabin by the argument that we made, which was,

[00:23:01] Speaker 03:
Stone and Ward require a new constitutionally correct proceeding.

[00:23:06] Speaker 03:
That has been provided to Mr. Coy.

[00:23:09] Speaker 03:
And based upon the facts here... So let's go back for a minute.

[00:23:12] Speaker 01:
I understand your... I truly do.

[00:23:16] Speaker 01:
So let's go back to the facts here.

[00:23:18] Speaker 01:
Again, I'm troubled by the fact...

[00:23:20] Speaker 01:
that Mr. Coyle has cross petition for review by the board on merits grounds.

[00:23:27] Speaker 01:
So could you tell me again why you think the board wouldn't address the merits grounds in this case, in the first case?

[00:23:35] Speaker 03:
Why the board wouldn't address it?

[00:23:37] Speaker 01:
The full board would not address the merits and would be limited to just the due process issue before it that the government has raised.

[00:23:44] Speaker 03:
So I'm assuming you're talking about the full board.

[00:23:47] Speaker 03:
The agency, I'm not sure how

[00:23:50] Speaker 03:
the full board would address the merits as opposed to potentially if it, you know, if it got to that particular issue, remanding it back to the AJ on, because- If we affirm here, how could the board address the merits in the pending case?

[00:24:10] Speaker 04:
It would be collateral estoppel, right?

[00:24:13] Speaker 03:
Sure, Your Honor, but I guess I don't see that as

[00:24:17] Speaker 03:
I don't see that as an issue that would defeat the argument.

[00:24:22] Speaker 04:
It's a solution to the problem we're talking about.

[00:24:27] Speaker 03:
Okay.

[00:24:30] Speaker 03:
I guess are you saying wait until that proceeding... They're saying there's a possibility of two inconsistent decisions.

[00:24:38] Speaker 04:
That's their argument.

[00:24:40] Speaker 04:
It's a troubling idea that you could have two inconsistent decisions.

[00:24:44] Speaker 04:
What I'm suggesting to you is no, you can't have two inconsistent decisions because once this case decides the merits, that forecloses the board in the second case from reaching a different conclusion on the merits.

[00:24:59] Speaker 03:
I think that's right, Your Honor, and that could certainly solve that particular issue.

[00:25:03] Speaker 05:
But if collateral assault will apply, you're arguing the same parties, same issues,

[00:25:08] Speaker 05:
in a decision that was important to the determination that was reached.

[00:25:14] Speaker 05:
How can you get to that point and not violate the finality rule?

[00:25:19] Speaker 05:
There's pending before, in the first case, in the first termination, you still have pending the merits.

[00:25:28] Speaker 05:
How can a second court come along and make a determination on the merits that would have stopped

[00:25:38] Speaker 05:
further action in this first case.

[00:25:42] Speaker 03:
Well, with respect to the issues that have been raised in this second proceeding, at least on appeal here, there's been no appeal on the merits issues with respect to whether the charges were sustained or not.

[00:25:57] Speaker 05:
That's because there was no decision on the merits in the first termination case.

[00:26:02] Speaker 05:
There was no decision on the merits.

[00:26:05] Speaker 05:
In fact, the board said, we're not going to decide this.

[00:26:10] Speaker 05:
We're not going to deport the judge.

[00:26:12] Speaker 05:
I'm not going to decide the merits, given that I find this decision on procedure.

[00:26:21] Speaker 03:
Correct.

[00:26:22] Speaker 03:
But in this second proceeding, the proceeding that's on appeal here, Mr. Coy could have appealed to this court the merits issues with respect to his removal.

[00:26:32] Speaker 03:
And he hasn't.

[00:26:34] Speaker 03:
The only issue that was appealed other than this legal issue we're talking about is the scope of the charges issue.

[00:26:45] Speaker 03:
Let me give you another hypothetical.

[00:26:46] Speaker 04:
Suppose in the first case the employee had won and the A.J.

[00:26:51] Speaker 04:
had determined that there was no violation of law or whatever, okay?

[00:26:57] Speaker 04:
And the government had appealed that to the board.

[00:27:00] Speaker 04:
And while that appeal was pending, the government

[00:27:03] Speaker 04:
began a second termination proceeding based on the same charge in the hopes that with a different AJ, they might get a different decision.

[00:27:11] Speaker 04:
That would not be proper, right?

[00:27:13] Speaker 03:
Well, that certainly seems much

[00:27:16] Speaker 03:
along the lines of that likely wouldn't be proper.

[00:27:18] Speaker 03:
And there's a lot of other hypotheticals.

[00:27:21] Speaker 03:
For example, what if the government brought six removal actions or something?

[00:27:25] Speaker 03:
And obviously, if there's something like bad faith or whatnot on the part of the government, I think that's a different situation.

[00:27:32] Speaker 03:
But what we're talking about here is the reason why there was no, that the board

[00:27:40] Speaker 03:
the administrative judge pointed to, was this stoneward violation.

[00:27:44] Speaker 03:
And what is the reason, what is the constitutional provision, what's the statute that would necessitate that the agency has to wait to take the same, to fix that procedural issue?

[00:28:00] Speaker 03:
What about the rule of finality?

[00:28:04] Speaker 03:
But where is the rule of finality?

[00:28:07] Speaker 05:
Are you talking about the cases the petitioner has cited here, where they have sort of... I'm talking about, for example, the various cases where we have found that we don't have any jurisdiction over an action, given that that same issues that are brought to us on appeal is currently pending in some other court.

[00:28:26] Speaker 03:
But this is a new action.

[00:28:29] Speaker 03:
I mean, it may involve... I get that, but I'm going to get back to the point.

[00:28:34] Speaker 05:
That once the decision is made, or the AJ said, I'm not going to decide the merits because I'm ruling on this due process issue.

[00:28:44] Speaker 05:
Okay.

[00:28:45] Speaker 05:
Once that due process issue is resolved, one way or the other, the merits are still undecided in that first action.

[00:28:53] Speaker 03:
Well, but it's only up until the point of the second removal.

[00:28:57] Speaker 03:
And so here, this proceeding is only deciding- Well, that's what they're arguing.

[00:29:02] Speaker 05:
You can't remove me the second time.

[00:29:04] Speaker 05:
When I have a removal action that's still pending.

[00:29:08] Speaker 03:
Well, again, and that's the argument we put forth, which is what is the basis of... You can end up with inconsistent decisions.

[00:29:19] Speaker 03:
Well, again, that inconsistent decision argument wasn't actually raised here, but even if it was, we've sort of struggled when it's solely a procedural issue, it doesn't seem like there's been any articulation as to once, if this court comes out with a decision essentially saying the removal in this case was proper, what the harm would be in that particular situation, because then the only piece remaining is

[00:29:49] Speaker 03:
the removal from the point of the initial removal, the notice of proposed removal in Koi Wan, up until the point when the initial decision happened.

[00:30:01] Speaker 03:
And so what is the harm in that particular situation?

[00:30:06] Speaker 03:
All that's been said is there has been

[00:30:09] Speaker 03:
There's a rule at the board that says that there could not be two successive removals, and that's the Hanner case, but that's just dicta, and it's not been grounded.

[00:30:24] Speaker 03:
There's certainly no double jeopardy issue here.

[00:30:28] Speaker 01:
There's no procedural... I think that the doctrine or whatever, the source of law that Mr. Hoy seems to rely on the most, or at least is the interim relief statute, right?

[00:30:38] Speaker 01:
So how does that play out?

[00:30:41] Speaker 03:
So 7701 doesn't address this particular issue.

[00:30:45] Speaker 03:
And we know it doesn't address this issue because when there are cases, for example, so 7701 says that interim relief needs to be provided in certain situations where the petitioner prevails below.

[00:31:00] Speaker 03:
But for example, if the agency, let's just say this was completely unrelated charges,

[00:31:06] Speaker 03:
The agency doesn't have to keep that interim relief going indefinitely.

[00:31:11] Speaker 01:
But these are the same chargers.

[00:31:13] Speaker 01:
But again, Congress... Can I ask you, are you saying that the second action could cut off the interim relief order provided by the first action?

[00:31:23] Speaker 01:
Is that your position?

[00:31:24] Speaker 01:
I mean, it's not an issue in this case, I don't think.

[00:31:27] Speaker 01:
But is that your position?

[00:31:29] Speaker 03:
Well, I mean, I don't think that in 7701, Congress specifically

[00:31:36] Speaker 01:
address that that issue and so uh... you know whether or not but didn't that say that if an agency it says that the employees shall receive pay compensation or benefits blah blah blah and the outcome of any petition for review so as long as the government still has a petition for review pending that person still gets paid right well by the text of the statute that would

[00:32:00] Speaker 03:
that would address that particular situation.

[00:32:03] Speaker 03:
But what it doesn't address is the situation where the agency then comes in and takes a second adverse action.

[00:32:10] Speaker 01:
So you say that Congress, by having this statute and having the agency take a second action that would thwart the statute's purpose, that that's okay?

[00:32:20] Speaker 01:
Because what you're arguing seems inconsistent with your position that you should be able to file this second action, or be able to bring the second removal action.

[00:32:27] Speaker 01:
This is Congress's intent.

[00:32:30] Speaker 03:
It's certainly not the heart of our argument.

[00:32:32] Speaker 03:
My only point was that that particular statute doesn't address a second proceeding, whether it's on unrelated charges or not.

[00:32:42] Speaker 01:
But can I say something?

[00:32:44] Speaker 01:
It seems to me that if the second action

[00:32:48] Speaker 01:
changes congressional intent, that is, that the employee gets paid until the petition for review is decided, or until the government drops that.

[00:32:58] Speaker 01:
If the second action changed that, then there's something wrong here, because then the statute, Congress's intent, is being violated by the agency.

[00:33:08] Speaker 01:
And that would suggest the second action can occur, in my mind.

[00:33:12] Speaker 01:
How do you respond to that?

[00:33:14] Speaker 03:
Well, again, I don't think that that

[00:33:18] Speaker 03:
I don't think we can draw from congressional intent necessarily the issue of a second action, a second adverse action.

[00:33:26] Speaker 04:
Was there an actual interim relief order here?

[00:33:29] Speaker 03:
There was an interim relief order.

[00:33:30] Speaker 03:
What does it say?

[00:33:32] Speaker 03:
I believe that's Appendix 206.

[00:33:36] Speaker 03:
And so it says that the AJ says that the agency has to, quote, cancel the removal.

[00:33:47] Speaker 03:
into retroactively restore appellant effective April 13, 2018.

[00:33:52] Speaker 03:
And then it provides a time period.

[00:33:54] Speaker 03:
But it also, so later on, and I'm approximately the fifth paragraph down, it says, if a petition for review is filed by either party, I order the agency to provide interim relief to the appellant in accordance with 5 U.S.C.

[00:34:09] Speaker 03:
Section 7701 B2A.

[00:34:13] Speaker 03:
That will remain in effect until the decision of the board becomes final.

[00:34:17] Speaker 03:
And in general, based upon 7701, back pay, for example, does not, back pay attorney's fees does not need to be provided.

[00:34:27] Speaker 03:
There was interim relief granted for that approximate three month period, but then there was a second action that took place.

[00:34:38] Speaker 01:
So once the second action took place, you discontinued payment?

[00:34:42] Speaker 01:
The agency discontinued payment?

[00:34:44] Speaker 03:
That's correct, Your Honor.

[00:34:46] Speaker 03:
So approximately from September 2019 to December 2019, he was restored.

[00:34:55] Speaker 03:
Under the interim relief order, he received compensation.

[00:34:59] Speaker 03:
uh... for that period of time and then once in december twenty nineteen uh... second removal was was decided at that point he is not not been receiving thank you mister yale mister bonk you have two minutes thank you honors

[00:35:26] Speaker 02:
Just a couple brief points regarding some discussion on the first termination.

[00:35:32] Speaker 04:
Did you ever argue that the second termination was barred by the interim relief statute?

[00:35:38] Speaker 02:
No, Your Honor.

[00:35:43] Speaker 02:
Okay.

[00:35:44] Speaker 02:
The first termination, it does, as mentioned, I believe briefly mentioned by the government and as discussed here previously, there are some claims at issue there, whistleblower retaliation, EEO, the like,

[00:35:56] Speaker 02:
that are raised from defenses that are under separate statutory authority than what's at issue here in the second termination action.

[00:36:04] Speaker 02:
So a resolution before this court of this particular matter would not resolve those pending matters, at least on the merits for that first termination action.

[00:36:23] Speaker 05:
Can you give me an example of how the pending appeal can result in a inconsistent decision?

[00:36:31] Speaker 02:
Certainly, Your Honor.

[00:36:33] Speaker 02:
If the board in the first termination action makes any determination on the merits ultimately, then... Makes a determination what?

[00:36:44] Speaker 02:
On the merits, Your Honor, if there is ultimately any determination.

[00:36:48] Speaker 05:
How can they if they only have the procedural issue before them?

[00:36:53] Speaker 02:
Again, Judge, I believe that it's possible that with the issues filed on the cross-PFR there, that there could be a decision from the board as a whole on those matters mentioned, the merits of the claim, those pending affirmative defenses as well.

[00:37:09] Speaker 01:
Where is that argument made in your blue brief?

[00:37:14] Speaker 02:
Not explicitly, Your Honor.

[00:37:16] Speaker 01:
Is it?

[00:37:17] Speaker 02:
It's not made.

[00:37:18] Speaker 02:
It's not listed in the brief.

[00:37:19] Speaker 01:
Because I don't remember reading it until I heard you say it today.

[00:37:22] Speaker 02:
That's correct, Your Honor.

[00:37:24] Speaker 02:
It's not discussed in the brief.

[00:37:26] Speaker 04:
Do you agree that one way or the other, if we decide that the removal here was proper or improper in this case, that that would be collateral estoppel in the first case?

[00:37:36] Speaker 02:
Again, Your Honor, I don't think that there would be collateral stubble in the first case because there are those other confirmed offenses that were raised.

[00:37:42] Speaker 04:
Well, not as to those, but as to the merits, as to the merits of the removal.

[00:37:47] Speaker 04:
It's an issue here.

[00:37:48] Speaker 02:
Yes, Your Honor, there could be collateral stubble in that circumstance, yes.

[00:37:53] Speaker 02:
I see my time's concluded.

[00:37:54] Speaker 05:
But when would that decision be made?

[00:37:57] Speaker 05:
Would it be made at the time that the board issues its decision or is about to?

[00:38:02] Speaker 05:
Where does a collateral stubble argument come in?

[00:38:06] Speaker 05:
Can it come in to play today on this appeal?

[00:38:11] Speaker 05:
Isn't that an issue that will be brought up if the case goes back on the merits under the pending appeal?

[00:38:23] Speaker 02:
If the case goes back on the merits and the pending appeal... In other words, we can't issue an order.

[00:38:27] Speaker 05:
We can't decide collateral assault on this appeal.

[00:38:29] Speaker 05:
Would you agree with that?

[00:38:33] Speaker 02:
Oh, on whether there would be collateral estoppel, I believe I would agree with that, Your Honor, because it's up in the air on the first matter at this point in time, if I'm understanding your question correctly.

[00:38:42] Speaker 04:
Okay, but how could there be two inconsistent decisions if collateral estoppel applies?

[00:38:47] Speaker 04:
That's exactly the purpose of collateral estoppel is to prevent inconsistent decisions.

[00:38:55] Speaker 02:
And again, I may be misunderstanding your questions there, Your Honor, but I believe that it is a possibility that collateral estoppel applies if this court comes down.

[00:39:03] Speaker 05:
But again, on the mayor... But who would decide that?

[00:39:06] Speaker 05:
Where would the argument of collateral estoppel be made?

[00:39:09] Speaker 05:
Not to us.

[00:39:10] Speaker 02:
No, Your Honor, it would be made to the board in that circumstance.

[00:39:13] Speaker 02:
That's correct.

[00:39:14] Speaker 05:
And only if the board is headed towards making an inconsistent decision.

[00:39:18] Speaker 02:
That is correct, Your Honor.

[00:39:19] Speaker 02:
Yes.

[00:39:20] Speaker 02:
I believe that would be accurate.

[00:39:23] Speaker 05:
Okay.

[00:39:23] Speaker 05:
Anything further?

[00:39:23] Speaker 05:
All right.

[00:39:24] Speaker 05:
Thank you.