[00:00:00] Speaker 03:
Our next case is number 24, 1934, Crenshaw versus OPM.

[00:00:06] Speaker 03:
Okay, Mr. Graham.

[00:00:08] Speaker 03:
Good morning, Your Honors.

[00:00:09] Speaker 04:
May it please the court?

[00:00:11] Speaker 04:
My name is Kevin Graham.

[00:00:12] Speaker 04:
I'm an attorney in Liberty, Missouri.

[00:00:14] Speaker 04:
I represent Andréla Crenshaw, former federal employee.

[00:00:18] Speaker 04:
And Ms.

[00:00:18] Speaker 04:
Crenshaw, 11 years ago, approximately applied for disability retirement.

[00:00:25] Speaker 04:
The issue for this court today

[00:00:28] Speaker 04:
from our perspective is how does this court resolve a factual situation in which there is competing evidence of separation?

[00:00:37] Speaker 04:
In this case, the agency believes that separation occurred on March, or excuse me, July 27, 2013.

[00:00:46] Speaker 04:
However, two additional pieces of information following that, after that, establish that she was still an employee potentially for up to four more years at least.

[00:00:58] Speaker 04:
And the issue is... But that happened after the election, right?

[00:01:06] Speaker 04:
I'm sorry, I apologize.

[00:01:06] Speaker 04:
That happened after the election, right?

[00:01:09] Speaker 04:
When you say election, I apologize.

[00:01:10] Speaker 04:
I don't know what you mean by election.

[00:01:12] Speaker 03:
Well, she left the employment of the federal government.

[00:01:18] Speaker 04:
She was on leave without pay for an extended period of time, for sure.

[00:01:20] Speaker 05:
There's no question about that.

[00:01:22] Speaker 05:
All I could find in the record, which is pretty sparse, is the government continuously leaving aside the mix-up in 2015 and what they said, that she resigned as of July 27, 2013.

[00:01:36] Speaker 05:
And they say, review of our record show, did you put on any evidence?

[00:01:42] Speaker 05:
And that's what the ALJ, everybody seemed to assume that.

[00:01:46] Speaker 05:
There's nothing in the record from your side that I could find that disputes that.

[00:01:51] Speaker 05:
Again, so the dispute is that... Is there a dispute over whether or not she resigned July 27, 2013?

[00:01:58] Speaker 04:
There is a dispute of whether or not her separation was effective as of that date for certain.

[00:02:04] Speaker 04:
Whether she was actually separated from the federal government.

[00:02:07] Speaker 04:
That is the core issue of the case.

[00:02:09] Speaker 05:
Okay, and what evidence did you put on except for the...

[00:02:14] Speaker 05:
erroneous information that you have provided in 2015.

[00:02:18] Speaker 05:
What other evidence?

[00:02:19] Speaker 05:
Everybody else seems to establish, and you've got to show error in what the board found, and they assume that the review of the record shows that you resigned from federal service July 27, 2013.

[00:02:31] Speaker 05:
We don't have the attachments in the record.

[00:02:35] Speaker 05:
There's apparently a letter.

[00:02:37] Speaker 05:
Did she or did she not resign as of July 27th?

[00:02:40] Speaker 05:
And what evidence did you put on to show that she did not?

[00:02:44] Speaker 04:
Again, the SF50 that is in the record would certainly indicate that that's when her separation date was.

[00:02:53] Speaker 04:
However, the evidence also indicates that that is not when she was separated and that there is no evidence of when she was separated.

[00:02:59] Speaker 04:
And that is because we tend to want to believe that the federal government acts in a very unitary way.

[00:03:04] Speaker 04:
that there is one document that will say you're in or out as an employee.

[00:03:08] Speaker 05:
That may be your experience, it's not mine.

[00:03:12] Speaker 05:
Can I just ask you along those same lines, you say somewhere in the record one of your letters that she got her social security disability retirement right away.

[00:03:22] Speaker 05:
She did.

[00:03:22] Speaker 05:
When was that?

[00:03:23] Speaker 04:
That would have been, again, 2014, 15, 16 range.

[00:03:29] Speaker 05:
I didn't represent her on that.

[00:03:31] Speaker 05:
Okay, but if she was getting social security disability in 2013, that would clearly demonstrate that she had resigned.

[00:03:38] Speaker 04:
There's nothing in the record about the exact date of social security disability.

[00:03:42] Speaker 04:
I don't want to misstate that.

[00:03:44] Speaker 04:
I know very early in her process she did receive social security disability.

[00:03:47] Speaker 05:
Is there a resignation letter?

[00:03:48] Speaker 05:
There is not.

[00:03:49] Speaker 05:
So what record

[00:03:51] Speaker 05:
What did you put on?

[00:03:52] Speaker 05:
You say review of the record shows that you resigned from federal service July 27, 2013.

[00:03:59] Speaker 05:
Did you dispute that?

[00:04:00] Speaker 05:
That seems not to have been litigated or contested before the AJ in your hearing here.

[00:04:06] Speaker 04:
It was in the sense that there are two different documents were submitted.

[00:04:10] Speaker 04:
One, so OPM.

[00:04:11] Speaker 03:
You're saying later documentation suggests that she wasn't separated as of the 2013 date.

[00:04:17] Speaker 04:
That's correct.

[00:04:18] Speaker 04:
OPM returned her application saying, you're still an employee.

[00:04:22] Speaker 03:
But if the later document was wrong, in fact, she resigned in 2013.

[00:04:29] Speaker 03:
At the time she resigned in 2013, she wasn't confused about anything, right?

[00:04:35] Speaker 04:
Again, the evidence of when her separation was actually affected doesn't exist.

[00:04:41] Speaker 04:
There is an SF-50, no doubt, from 2013.

[00:04:45] Speaker 04:
When my office contacted the agency, they said, no, she's still an employee.

[00:04:49] Speaker 03:
You yourself on page six of the blue brief say she stopped working in 2013.

[00:04:55] Speaker 04:
Which is absolutely the case, often the case.

[00:04:58] Speaker 04:
She was on leave without pay for an extended period of time.

[00:05:01] Speaker 05:
Wait, is there a record of her being on leave without pay in 2014?

[00:05:06] Speaker 05:
Again, the evidence of this case is that she was... Do you have any evidence other than what OPM told you erroneously in 2015 about it appears that she's still on the roll?

[00:05:19] Speaker 05:
Then they took it back and they said, whoops, we're wrong.

[00:05:22] Speaker 05:
We reviewed the record and she resigned as of 2013.

[00:05:26] Speaker 05:
Did you put on any evidence other than the letter that OPM said to demonstrate that she was in fact still employed as of 2015?

[00:05:34] Speaker 05:
Well, again, the other piece of evidence... Can you answer my question first and then you can explain it?

[00:05:39] Speaker 05:
Did you put on any evidence other than the OPM letter

[00:05:43] Speaker 05:
to demonstrate that she had not resigned as of 2013.

[00:05:48] Speaker 04:
So she received documentation up to 2017 giving her entitlement to benefits as a federal employee.

[00:05:55] Speaker 04:
She was still receiving documents as of 2017, and that's in the appendix.

[00:06:03] Speaker 04:
So yes, that was presented to the court as well, to the ALJ as well.

[00:06:07] Speaker 05:
All right.

[00:06:07] Speaker 05:
But she was not on the rolls.

[00:06:10] Speaker 05:
She was not getting paid.

[00:06:11] Speaker 05:
She was on Social Security disability retirement.

[00:06:15] Speaker 04:
At that point in 2017 for certain, yes.

[00:06:17] Speaker 05:
Well, I thought you said earlier to me, 2014.

[00:06:20] Speaker 04:
I didn't represent her.

[00:06:21] Speaker 04:
I know very early in the process.

[00:06:22] Speaker 05:
You understand that that might be relevant.

[00:06:24] Speaker 05:
I mean, if she was getting Social Security benefits on disability in 2014 or 2013, then that's a slam dunk that she was no longer employed, right?

[00:06:37] Speaker 05:
I think you can get it if you are not drawing a check.

[00:06:44] Speaker 04:
I don't think you can get it if you are drawing a check because they have income guidelines that would prevent you from receiving a check.

[00:06:58] Speaker 05:
Social Security would say yes.

[00:07:00] Speaker 05:
Okay, so what evidence did you put on to refute what everybody in OPM and the AHA concluded was the record shows that you, review of the record shows that you resigned as of July 23rd.

[00:07:14] Speaker 04:
Our evidence was two separate pieces of documents from the federal government which indicated she was still employed.

[00:07:20] Speaker 04:
And again.

[00:07:21] Speaker 05:
One was the letter from OPM that they acknowledged they admit was mistaken, correct, in 2015.

[00:07:28] Speaker 04:
4, 27, and 15.

[00:07:30] Speaker 05:
Okay.

[00:07:31] Speaker 05:
Correct.

[00:07:32] Speaker 05:
Well, I think Judge Dyke started with the key question, which is at the time she got that letter, which may have been, let's assume may have been confusing, she was already too late.

[00:07:43] Speaker 05:
So if anything, it was harmless error.

[00:07:45] Speaker 05:
If in fact the record establishes that she did resign July 27, 2013, then whatever OPM told her in 2015 and then took back,

[00:07:57] Speaker 05:
didn't affect her decision to apply well over a year after she resigned, right?

[00:08:03] Speaker 04:
Respectfully, I would disagree.

[00:08:06] Speaker 04:
So again, we believe the case is about federal government at her agency in different places, different offices, one was giving information about separation and one was saying she's still on the rolls.

[00:08:20] Speaker 05:
And when was that?

[00:08:21] Speaker 05:
That was in 2015?

[00:08:23] Speaker 05:
Yes.

[00:08:24] Speaker 05:
Well, if it's true that

[00:08:26] Speaker 05:
That was the misinformation which they took back a year later or whatever.

[00:08:30] Speaker 05:
That would still have been too late.

[00:08:33] Speaker 05:
If they were correct, if they are correct and the record establishes that she filed in 20, that she resigned as of 2013, then who cares if they made a mistake in 2015 and then corrected it in 2015 or 2016.

[00:08:48] Speaker 05:
When she first filed in 2015, it would have been too late if in fact she had resigned in 2013.

[00:08:54] Speaker 04:
Again, respectfully would disagree because again, our position is this agency had the same information and different offices were coming to different conclusions about whether she was still on the rolls.

[00:09:06] Speaker 04:
And when one office says, okay, we're going to say she wasn't, and we're going to go all the way back to 2013, that changes her rights dramatically.

[00:09:16] Speaker 03:
If she resigned in 2013, you lose, right?

[00:09:20] Speaker 04:
If her resignation was affected,

[00:09:23] Speaker 04:
In 2013?

[00:09:23] Speaker 04:
In 2013.

[00:09:24] Speaker 04:
I agree with that.

[00:09:26] Speaker 05:
Okay.

[00:09:27] Speaker 05:
Did she go to work after July 27, 2013?

[00:09:29] Speaker 05:
No.

[00:09:31] Speaker 04:
For the agency, no.

[00:09:35] Speaker 04:
Okay.

[00:09:35] Speaker 04:
She's on extended leave without pay for the entire time.

[00:09:41] Speaker 05:
Leave without pay for two years?

[00:09:42] Speaker 05:
Until when?

[00:09:43] Speaker 05:
When did they?

[00:09:45] Speaker 05:
Again, we don't.

[00:09:47] Speaker 04:
I apologize.

[00:09:48] Speaker 05:
I don't understand when you said she was on extended leave without pay.

[00:09:51] Speaker 05:
Is there a paper trail on that?

[00:09:53] Speaker 05:
I mean, when you're on extended leave without pay, is there a paper trail?

[00:09:57] Speaker 04:
Well, the paper trail, again, is she wasn't going to work and she was receiving information from the agency that she was still employed.

[00:10:05] Speaker 04:
Getting a paycheck every... No, no, she was not.

[00:10:09] Speaker 02:
When's the last time she got a paycheck?

[00:10:14] Speaker 04:
It would probably...

[00:10:16] Speaker 04:
it would have been likely before her July 27, 2013, because I believe she was on leave without pay up to that point as well.

[00:10:26] Speaker 05:
Okay, so you say she was under the impression she was on leave without pay, but she filed in March of 2015.

[00:10:35] Speaker 05:
When she filed in March of 2015,

[00:10:41] Speaker 05:
She thought she had been separated, right?

[00:10:42] Speaker 05:
That's why she was filing for disability.

[00:10:44] Speaker 05:
And you say in that letter that she's been separated for at least 30 days, which would have been the requirement for you to file with OPM, right?

[00:10:51] Speaker 05:
Right.

[00:10:51] Speaker 05:
And I'll say... Okay.

[00:10:52] Speaker 05:
Right?

[00:10:53] Speaker 05:
Okay.

[00:10:54] Speaker 05:
I'm not done yet.

[00:10:55] Speaker 05:
Okay.

[00:10:55] Speaker 05:
Okay.

[00:10:56] Speaker 05:
When then did she discover, you say, for at least 30 days, when you say she thought she was on leave without pay for an extended period of time, when did she discover, whoops, I'm no longer on leave without pay, so I can go and file for disability?

[00:11:11] Speaker 04:
I understand it was my office that followed, so we represent her for 11 years now.

[00:11:14] Speaker 05:
Okay, so when did you figure out that she wasn't on leave without me?

[00:11:17] Speaker 04:
It was my office that did that and that would have been in early 2015.

[00:11:21] Speaker 05:
And how did you figure that out?

[00:11:23] Speaker 04:
Because with phone calls to the agency.

[00:11:26] Speaker 04:
Before then, the agency was telling us she was still employed.

[00:11:30] Speaker 05:
Wait, does the record contain phone calls?

[00:11:32] Speaker 04:
It does not, because this is... That's the answer to your question.

[00:11:36] Speaker 05:
Alright, I appreciate that, but we can't accept that.

[00:11:38] Speaker 05:
I understand that.

[00:11:39] Speaker 05:
I guess, what does the record show, what happened in late 2014 or early 2015 that led to her to suddenly say, whoops, I guess I'm no longer on leave without pay, I must have been removed.

[00:11:54] Speaker 04:
I guess the record would show Appendix Exhibit 30, which is the letter from my office, which attempted to summarize some of the difficulties we've had with the agency, and that's in the Appendix.

[00:12:07] Speaker 04:
Okay, where is that?

[00:12:08] Speaker 04:
I think it's Appendix 30.

[00:12:10] Speaker 05:
I have it's Appendix 30 and it's not there, so.

[00:12:15] Speaker 05:
I know there were a letter, oh, there are different appendix numbers for different, okay.

[00:12:20] Speaker 05:
So what is it in that letter?

[00:12:22] Speaker 05:
I've got that letter now.

[00:12:24] Speaker 04:
There's a heading called confusion regarding Ms.

[00:12:27] Speaker 04:
Crenshaw's employment status and there's a six or seven line paragraph that begins with our attempts.

[00:12:39] Speaker 05:
But there's no record, I mean there's nothing attached to this.

[00:12:44] Speaker 05:
You say this letter indicates that, this is about the erroneous OPM letter.

[00:12:51] Speaker 05:
You say the evidence comes from OPM.

[00:12:53] Speaker 05:
Let's take the OPM error, confessed error off the table, other than OPM's letter saying, it appears to us you may still be on the road.

[00:13:02] Speaker 05:
Did she have any other evidence to indicate?

[00:13:05] Speaker 05:
I mean, something must have precipitated her filing.

[00:13:08] Speaker 05:
If you're correct, she thought she was on leave without pay for this extended period of time.

[00:13:15] Speaker 05:
And this was all before OPM's erroneous letter.

[00:13:19] Speaker 05:
What happened?

[00:13:20] Speaker 05:
Is it in the record?

[00:13:21] Speaker 05:
It is not.

[00:13:22] Speaker 05:
OK.

[00:13:23] Speaker 05:
So we'd have no idea why.

[00:13:25] Speaker 05:
If she thought she had not resigned in 2013, and she thought she was on leave without pay, well, shouldn't you have put something in the record to indicate that she had not resigned in 2013?

[00:13:41] Speaker 04:
Again, at the time we filed it, we didn't have the SF50.

[00:13:44] Speaker 04:
We had no indication that she had resigned or that there's an allegation that she had resigned in 2013 when we filed it.

[00:13:50] Speaker 04:
Okay.

[00:13:50] Speaker 05:
When did you get the SF50?

[00:13:55] Speaker 04:
What's that?

[00:13:55] Speaker 05:
When did you get the SF50?

[00:13:57] Speaker 04:
Probably during the MSPB case, through the MSPB.

[00:14:02] Speaker 05:
And when was that SF50 dated?

[00:14:06] Speaker 04:
July 27th.

[00:14:08] Speaker 05:
2013.

[00:14:08] Speaker 05:
2013.

[00:14:09] Speaker 05:
OK.

[00:14:10] Speaker 05:
And there was no argument made that this was a fabricated letter and this wasn't effectuated.

[00:14:16] Speaker 05:
I'm sorry, I didn't understand.

[00:14:16] Speaker 05:
There was no argument made that this was fabricated or pre… Just that it was not effected, but definitely not fabricated, no.

[00:14:27] Speaker 05:
OK.

[00:14:27] Speaker 05:
So you've got a 755…

[00:14:30] Speaker 05:
SF50 in the record and you're saying it was in the record and she wasn't working but it was not effectuated and she was on leave without pay during that period.

[00:14:41] Speaker 04:
That's what we believe, yes.

[00:14:45] Speaker 04:
I see I'm out of time.

[00:14:45] Speaker 03:
We'll give you two minutes for a bubble.

[00:14:51] Speaker 03:
Thank you.

[00:14:51] Speaker 03:
Mr. Walker.

[00:15:03] Speaker 01:
Thank you, Your Honors.

[00:15:04] Speaker 01:
May it please the Court.

[00:15:05] Speaker 01:
This Court should affirm the decision of the Merit Systems Protection Board because Ms.

[00:15:09] Speaker 01:
Crenshaw was correctly found not to be eligible for disability retirement having untimely filed her application without the one-year period found in 5USD 8337B.

[00:15:21] Speaker 01:
Under that same statute, an employee is only eligible for disability retirement after they've worked for the government for five years and filed a timely application either with OPM or their employer

[00:15:32] Speaker 01:
before they left the employee of the federal government or within one year of that period, with only one exception, that being mental disability.

[00:15:40] Speaker 05:
And I'll ask your friend, or I should have asked your friend, but they've not appealed that issue, correct?

[00:15:48] Speaker 01:
Correct, Your Honor.

[00:15:49] Speaker 01:
That is waived in their brief by Ms.

[00:15:51] Speaker 01:
Crenshaw.

[00:15:51] Speaker 05:
Because it seems that some of the confusion on my part here seems to be that the AJ seemed to

[00:15:57] Speaker 05:
hit a lot of his opinion dealt with the issue of whether she was incompetent, which would have justified a waiver of this one year period, right?

[00:16:07] Speaker 05:
Correct, Your Honor.

[00:16:07] Speaker 05:
So now that's not an issue of appeal.

[00:16:10] Speaker 05:
They've dropped that.

[00:16:12] Speaker 05:
Correct.

[00:16:15] Speaker 05:
Do you know anything about the Social Security disability retirement?

[00:16:19] Speaker 01:
I don't, Your Honor.

[00:16:21] Speaker 01:
I know there is some mention in the record that appears to be that she was on that at some point.

[00:16:27] Speaker 01:
I'm sorry?

[00:16:29] Speaker 05:
Can you collect both the Social Security retirement disability and the federal retirement disability?

[00:16:36] Speaker 01:
I'm not aware of the answer to that question.

[00:16:39] Speaker 01:
My instinct would be no, but there would probably be a waiver provision or something like that, but I'm not aware of that, Your Honor.

[00:16:47] Speaker 05:
So the issue before Russ is not whether she was incompetent and that resulted in her delay of the filing.

[00:16:53] Speaker 01:
Correct, Your Honor.

[00:16:54] Speaker 01:
That issue is not an appeal, but it was an issue before the board.

[00:16:57] Speaker 01:
You're correct.

[00:16:57] Speaker 03:
What she's saying is I didn't resign in 2013.

[00:17:01] Speaker 03:
I was on leave without pay for years and my disability retirement application was within one year after I was actually terminated.

[00:17:15] Speaker 03:
Something like that, right?

[00:17:17] Speaker 01:
I agree, Your Honor.

[00:17:18] Speaker 01:
I believe that is the argument today.

[00:17:19] Speaker 01:
I don't believe that is the argument in the record necessarily though, at least before the board.

[00:17:24] Speaker 01:
Before the board, it's not clear what her status was after July 27th.

[00:17:28] Speaker 01:
We do have 2013.

[00:17:31] Speaker 01:
We do have a reference in that initial, and as we know, errant OPM letter, incorrectly saying that she was still employed, that she may have been on leave.

[00:17:39] Speaker 03:
Why isn't there, I mean, when people resign from the federal government, don't they do that by letter or by some sort of written communication now?

[00:17:47] Speaker 01:
I believe that is typical, Your Honor.

[00:17:49] Speaker 01:
It is also true that you could also just stop showing up for work.

[00:17:52] Speaker 01:
And there is processes, depending on the agency, for how to address that situation.

[00:17:57] Speaker 03:
That's treated not showing up for work as treated as a resignation?

[00:18:01] Speaker 01:
Not right away, at least for most agencies, Your Honor.

[00:18:04] Speaker 01:
It would be an absence without leave initial situation until the agency figures out what's going on in that particular employee status.

[00:18:12] Speaker 03:
And then the agency would terminate that person.

[00:18:15] Speaker 01:
likely if they don't keep showing up or having a reasonable excuse for why they're absent from work without leave.

[00:18:21] Speaker 03:
But that's not what happened here.

[00:18:25] Speaker 03:
What the board is saying is that she resigned in 2013.

[00:18:32] Speaker 03:
Correct, Your Honor.

[00:18:33] Speaker 03:
How do we know that she resigned?

[00:18:35] Speaker 03:
Because the SF50 said it?

[00:18:38] Speaker 01:
We don't have, at least to my knowledge, we don't have an SF 50 in the record.

[00:18:42] Speaker 01:
And it is a skinny record, as your honor says.

[00:18:44] Speaker 01:
What we do know is we have a letter from OPM in 2016 explaining that it was incorrect.

[00:18:51] Speaker 01:
It wasn't a decision at that point.

[00:18:54] Speaker 01:
It was just a letter that was incorrect.

[00:18:56] Speaker 01:
And it said after reviewing the record, it indicates that Ms.

[00:18:58] Speaker 01:
Crenshaw resigned on July 27, 2013.

[00:19:01] Speaker 03:
But reviewing what record?

[00:19:04] Speaker 01:
We don't know.

[00:19:05] Speaker 01:
We don't know, Your Honor, unfortunately.

[00:19:08] Speaker 01:
It is likely an SS50.

[00:19:10] Speaker 02:
Let's look at Appendix 39, second paragraph.

[00:19:17] Speaker 02:
It's a reference to Exhibit B. It says that at the time of the filing, counsel for Ms.

[00:19:23] Speaker 02:
Crenshaw had received information that she had not been separated.

[00:19:26] Speaker 02:
What is Exhibit B?

[00:19:34] Speaker 01:
I believe, Your Honor, I don't know what Exhibit B is there precisely.

[00:19:40] Speaker 02:
My assumption is that... So that could be correct that she had not received information that she'd been separated as of 2013?

[00:19:50] Speaker 01:
Your Honor, while that statement is there, and my friend also repeated it, I don't think that statement can be correct because we were looking at Appendix 29.

[00:19:58] Speaker 01:
This is the application for immediate disability retirement that Ms.

[00:20:02] Speaker 01:
Crenshaw filed.

[00:20:03] Speaker 01:
And looking at the third paragraph, starting with this documentation, is being submitted directly to OPM because Ms.

[00:20:12] Speaker 01:
Crenshaw has been separated from her federal employment for more than 30 days.

[00:20:17] Speaker 01:
So as of the time of the application, March 2, 2015, Ms.

[00:20:22] Speaker 01:
Crenshaw was not confused.

[00:20:24] Speaker 01:
She knew she had resigned, affirmatively, or separated.

[00:20:28] Speaker 01:
from Federal Service at least for 30 days from that letter.

[00:20:32] Speaker 01:
There was no confusion.

[00:20:33] Speaker 01:
As my friend now argues that she hasn't worked since July.

[00:20:36] Speaker 02:
That doesn't contradict the provision that I referenced you to?

[00:20:45] Speaker 01:
I mean, you.

[00:20:45] Speaker 01:
It does appear to contradict it.

[00:20:47] Speaker 01:
Ms.

[00:20:47] Speaker 01:
Crenshaw's own words here appear to contradict the other provision that she argues, which I'm not exactly sure what exhibit they're referencing.

[00:20:54] Speaker 01:
It doesn't appear to be in the appendix of the briefing.

[00:20:57] Speaker 02:
I'll ask you again, then it can be the case that Ms.

[00:21:00] Speaker 02:
Crenshaw had not been separated from the agency in 2013.

[00:21:04] Speaker 01:
I'm sorry, Your Honor.

[00:21:07] Speaker 01:
It could be the case then that she had not been separated.

[00:21:11] Speaker 01:
According to the only thing in the factual record before the board, OPM's letter said that she resigned in July 27, 2018.

[00:21:18] Speaker 01:
So whether that was effectual, I guess we're arguing, but at least OPM's records and looking back, that's what the board rested its factual decision on here.

[00:21:29] Speaker 03:
Okay, but what you're saying is that the argument she's making now, that she was separated later, was not made to the board, right?

[00:21:39] Speaker 01:
Correct, Your Honor, and that is, I think,

[00:21:43] Speaker 01:
Your Honor's picked up on that point.

[00:21:45] Speaker 01:
The main issue with Ms.

[00:21:46] Speaker 01:
Crenshaw's argument, she didn't conduct discovery or look into the records that the agency may or may not have had at the time.

[00:21:53] Speaker 01:
She is simply relying upon documents that would supposedly cause confusion well after the statutory deadline of one year.

[00:22:01] Speaker 01:
She did not seek additional discovery from the agency or from OPM.

[00:22:05] Speaker 01:
She didn't choose to have a hearing, an oral hearing before the MSPB to testify about these issues

[00:22:11] Speaker 03:
We don't have her briefing before the board.

[00:22:15] Speaker 01:
Not in the record here, Your Honor.

[00:22:19] Speaker 03:
But that briefing, you say, didn't dispute the 2013 separation?

[00:22:25] Speaker 01:
I'm not saying that, Your Honor.

[00:22:26] Speaker 01:
I'm simply saying that Ms.

[00:22:28] Speaker 01:
Crenshaw chose not to have an oral hearing and testify and put her testimony about when she believed the separation.

[00:22:34] Speaker 03:
Did she argue before the board that she wasn't separated in 2013?

[00:22:40] Speaker 01:
I'm not sure exactly what her argument was.

[00:22:42] Speaker 01:
She didn't affirmatively put out a different date for that.

[00:22:46] Speaker 01:
That's pretty clear, I think, from the record for the board.

[00:22:48] Speaker 01:
She didn't say a different date or dispute this one, other than to say she was confused because of the agency's inconsistencies with accepting that date.

[00:22:58] Speaker 05:
Well, we've got the AJ begins on essay nine that, according to OPM's record, she voluntarily resigned from her employment on or about

[00:23:10] Speaker 05:
July 27, 2013, and it cites AF tab 6.

[00:23:17] Speaker 05:
Do we know what AF tab 6 is?

[00:23:19] Speaker 01:
I believe it's that OPM letter that we have been discussing, which is located at appendix 31.

[00:23:28] Speaker 05:
And that says, review of the record shows that you resigned from

[00:23:35] Speaker 05:
Federal Service on July 27, 2013.

[00:23:38] Speaker 05:
Correct, Your Honor.

[00:23:42] Speaker 05:
And is it your understanding that there's anything in the record that in response to this letter that says, no, I didn't resign as of July 27, 2013, not ever disputed?

[00:23:56] Speaker 01:
Not that I'm aware of, Your Honor.

[00:23:57] Speaker 01:
It doesn't appear the AJA considered a different argument as to that date.

[00:24:01] Speaker 01:
It appears to be accepted.

[00:24:03] Speaker 01:
and there was an alternative date offered.

[00:24:05] Speaker 01:
There was arguments about the after effects of the agency flip-flopping its position, but there was never a different date presented to the board, to my knowledge, at the age I could have accepted here.

[00:24:19] Speaker 01:
And I think that's the key point of this argument.

[00:24:22] Speaker 05:
Your friend is saying here that she was on extended leave without pay, which is unclear when she realized that she really shouldn't have been on leave without pay, which would have precipitated her filing the filing in 2015.

[00:24:34] Speaker 05:
Do you know if that argument had been made before you heard it today?

[00:24:38] Speaker 01:
Your Honor, I'm looking at their application.

[00:24:43] Speaker 01:
It doesn't mention that in 34 and 35 of the appendix to the OPM's rebuttal.

[00:24:51] Speaker 03:
What we need to know, and I guess you're not able to answer this morning, is whether she made this argument before the board, which she didn't design in 2013.

[00:24:59] Speaker 03:
If she made that argument

[00:25:01] Speaker 03:
board, the board had to address the question of whether she resigned in 2013, rather than assuming it based on the OPM letter.

[00:25:10] Speaker 01:
I think there's two things there, Your Honor.

[00:25:11] Speaker 01:
So we do have in the appendix of our brief, looking at S appendix 40, we have the appellant's close of records submission, which contains an argument about it being timely filed.

[00:25:24] Speaker 01:
In their argument, they presented the MSPB, there was no

[00:25:29] Speaker 01:
Discussion of a different date or a different time that she resigned in fact, and this is the Aaron CMS Crenshaw's argument here She says looking at appendix 41 The first paragraph last sentence OPM has not offered any evidence to rebut miss Crenshaw's evidence on this issue The issue being when she resigned the termination date Simply put this is the previous sentence the evidence establishes that miss Crenshaw's termination was not in July of 2013 and

[00:25:57] Speaker 01:
because the agency kept her honor's roles and likely after application disability retirement, pointing again to the insurance form that we discussed earlier and this errant OPM letter.

[00:26:08] Speaker 01:
There's no other documentation that backs up what is essentially this council's argument for the MSPB, which blurs the line of the burden of proof.

[00:26:20] Speaker 01:
Because Ms.

[00:26:20] Speaker 01:
Crenshaw submitted the disability retirement application under eight

[00:26:25] Speaker 01:
It says in the appeal from the final decision of the Office of Personal Management involving requirement benefits, if the appellant filed the application, the appellant has the burden of proving by a preponderance of evidence entitlement to the benefits.

[00:26:41] Speaker 01:
So what we have here is an affirmative OPM determination.

[00:26:44] Speaker 03:
Look, at the top of page 41, he's arguing, simply put, this evidence establishes that Mrs. Crenshaw's termination was not July of 2015.

[00:26:53] Speaker 03:
the agency kept her on the walls well after that date, and likely after her application for disability retirement benefits.

[00:27:01] Speaker 03:
So she made the argument, and I don't see that the board addressed it.

[00:27:08] Speaker 01:
I think, Your Honor, the problem here, the only argument in here is based off of the erroneous OPM initial

[00:27:15] Speaker 01:
form that was addressed and refuted by OPM.

[00:27:18] Speaker 03:
But that's fine.

[00:27:19] Speaker 03:
I mean, if the board had said that's their only evidence that she wasn't separated in 2013 and, you know, she loses for that reason.

[00:27:28] Speaker 03:
But I don't see that the board addressed this argument, which she seems to have made at Appendix 41.

[00:27:34] Speaker 01:
Well, I think the board, addressing it, because this is only counsel's argument in a brief, there wasn't any documentation or support

[00:27:42] Speaker 01:
for this argument.

[00:27:43] Speaker 01:
This is all stuff outside of the record, outside of an oral hearing where they could have accepted testimony.

[00:27:48] Speaker 01:
This is simply attorney argument in a brief without a citation to the record of where this information could be found.

[00:27:55] Speaker 01:
I mean, it's just a reference thing.

[00:27:56] Speaker 03:
It would have been nice if the board had said that.

[00:27:59] Speaker 01:
I agree, Your Honor.

[00:28:01] Speaker 01:
I agree.

[00:28:01] Speaker 01:
But ultimately, even if there is confusion... What is it that you're ultimately agreeing to?

[00:28:11] Speaker 02:
that the record doesn't support the decision here?

[00:28:14] Speaker 01:
No, Your Honor.

[00:28:16] Speaker 01:
I believe the only evidence in the record supports the July... There seems to be gaps.

[00:28:21] Speaker 01:
Would you say so?

[00:28:23] Speaker 01:
The record is very skinny here, Your Honor, but I think it's important to focus what is in the record and what Ms.

[00:28:28] Speaker 01:
Crenshaw failed to place correctly.

[00:28:29] Speaker 02:
We go back to exhibit B that I referenced before.

[00:28:33] Speaker 02:
You said you didn't know what that was.

[00:28:34] Speaker 02:
It could be anything, right?

[00:28:36] Speaker 01:
It could be anything, but it's not attached to any of the briefing.

[00:28:38] Speaker 01:
It's not before the court today.

[00:28:40] Speaker 02:
But it was an exhibit.

[00:28:42] Speaker 02:
Shouldn't we be entitled or shouldn't we have that to review?

[00:28:48] Speaker 02:
Or maybe have it explained to us?

[00:28:51] Speaker 01:
Well, as far as the board's findings, they met a factual determination as to what's in the record as far as the July 27 to 2023 date.

[00:28:59] Speaker 01:
And that date was uncontroverted.

[00:29:01] Speaker 01:
So that's a factual determination.

[00:29:03] Speaker 01:
And this board is only looking for critical

[00:29:05] Speaker 01:
legal errors.

[00:29:07] Speaker 01:
To that extent, the board did not commit one here having the only clear record being this July 27, 2013 date.

[00:29:15] Speaker 01:
There is no other

[00:29:17] Speaker 01:
in the record here before about what exactly Ms.

[00:29:19] Speaker 01:
Crenshaw may have argued, except, affirmatively, when she submitted her disability application in March of 2015, she said she was separated from federal employment for at least 30 days, which demonstrates there is no confusion.

[00:29:34] Speaker 01:
And even if there was confusion... How does it do that?

[00:29:36] Speaker 03:
I mean, that's not saying I was separated in 2013.

[00:29:38] Speaker 03:
It's just saying I've been separated for at least 30 days.

[00:29:43] Speaker 03:
It doesn't date it back to 2013.

[00:29:47] Speaker 01:
It shows, Your Honor, that she was not confused.

[00:29:50] Speaker 01:
She knew when she resigned, and she accepted that as of 2015.

[00:29:55] Speaker 01:
And it doesn't even matter with the decision of Richmond v. OPM.

[00:30:01] Speaker 01:
It's a one-year statutory mandatory period to apply.

[00:30:04] Speaker 01:
Thank you.

[00:30:05] Speaker 05:
Wait a minute.

[00:30:06] Speaker 05:
I'm not done.

[00:30:07] Speaker 05:
OK, thank you.

[00:30:08] Speaker 05:
That's OK with the presenting officials.

[00:30:09] Speaker 05:
You don't get to sit down until we're done.

[00:30:11] Speaker 05:
Can you look at the AJ's opinion at Appendix 13?

[00:30:16] Speaker 05:
Because I think there was a very important question raised with respect to whether the board said anything about the contention she made on Essay 40.

[00:30:27] Speaker 05:
And I'm not sure that paragraph, the first full paragraph on Appendix 13 doesn't address that argument.

[00:30:36] Speaker 05:
Maybe I'm misreading it, but it seems like here the board says she's failed to demonstrate that she was mentally incompetent.

[00:30:44] Speaker 05:
That's another issue for the one year.

[00:30:45] Speaker 05:
And then say the appellant's primary argument appears to be based on the purported confusion surrounding her date of separation.

[00:30:52] Speaker 05:
In support, she argues the letter, 2015, is evidence she reasonably believed she wasn't separated.

[00:30:59] Speaker 05:
However, I find this not to be the case.

[00:31:02] Speaker 05:
So is that not responding to the argument she made on SA 40 that she was confused and it wasn't untimely because of this OPM letter?

[00:31:16] Speaker 01:
I would say yes, Your Honor.

[00:31:17] Speaker 01:
And again, the A.J.

[00:31:19] Speaker 01:
went back to the actual application that she submitted, which clearly stated that she was separated from federal employment at the time.

[00:31:26] Speaker 03:
I mean, this does seem to specifically address the issue on the 13th.

[00:31:31] Speaker 03:
The appellant does not present any evidence to rebut the ultimate determination.

[00:31:36] Speaker 03:
The appellant has been separated from the Department of Defense by resignation as of July 27, 2013.

[00:31:44] Speaker 03:
notwithstanding the erroneous information.

[00:31:46] Speaker 03:
So, I mean, your answer earlier to me was wrong.

[00:31:50] Speaker 03:
In fact, the board did specifically address this contention and rejected it.

[00:31:57] Speaker 01:
Well, I guess I want to clarify, Your Honor.

[00:31:59] Speaker 01:
There was no specific addressing of Exhibit B that Dedrena brought up directly to this.

[00:32:05] Speaker 03:
But the board says, the A.J.

[00:32:09] Speaker 03:
says she was separated in 2013.

[00:32:13] Speaker 03:
And this erroneous information doesn't suggest otherwise.

[00:32:16] Speaker 03:
Correct.

[00:32:16] Speaker 01:
That is the only factual date in the record.

[00:32:23] Speaker 03:
Okay.

[00:32:26] Speaker 03:
All right.

[00:32:26] Speaker 03:
Mr. Graham, you have two minutes.

[00:32:29] Speaker 03:
So why doesn't that language that Judge Prost referred to and that I just read to you, is it finding a fact that she resigned in 2013?

[00:32:41] Speaker 03:
Clearly on the 13th.

[00:32:43] Speaker 03:
And if there is a finding of fact, why isn't that supported by substantial evidence?

[00:32:47] Speaker 04:
Well, because in the decision by the ALJ, and again, it's the language we've heard today as well.

[00:32:54] Speaker 04:
Everything was, it was an erroneous letter in April of 2015.

[00:32:57] Speaker 04:
No, no, no.

[00:32:57] Speaker 04:
I've got to answer the question.

[00:32:59] Speaker 03:
I just read the opposing counsel a sentence from this decision, which Judge Prost referred to earlier, saying she resigned in 2013.

[00:33:10] Speaker 03:
And that's a factual finding.

[00:33:14] Speaker 03:
And it's based on the record.

[00:33:16] Speaker 03:
Correct.

[00:33:17] Speaker 03:
Why don't you lose?

[00:33:18] Speaker 04:
Because the judge in this decision called it an erroneous letter.

[00:33:23] Speaker 04:
And again, there's a presumption there that the separation was the April letter was somehow just erroneous.

[00:33:30] Speaker 03:
Did the board find that she was separated in 2013?

[00:33:33] Speaker 04:
I would say yes.

[00:33:38] Speaker 03:
And so why and why was it wrong about that?

[00:33:41] Speaker 04:
Because it was a presumption of again there was an erroneous action instead of an acknowledgement that there was obviously competing evidence.

[00:33:51] Speaker 05:
So you're relying entirely on OPM's mess up in that initial letter in 2015 saying that appears she's in the record.

[00:34:00] Speaker 05:
I mean assuming that's an error and assuming we can there's a harmless error standard

[00:34:08] Speaker 05:
If you have anything more than that, I mean the confusion why she filed late, she didn't file, she filed before that erroneous letter from OPM.

[00:34:18] Speaker 05:
So I'm not seeing how that undercuts the position of the government that she was a year late.

[00:34:25] Speaker 04:
Again, we strongly take issue with the idea that somehow it was just a simple mistake that OPM fixed.

[00:34:33] Speaker 04:
what we believe the letter says, the April letter indicates that OPM clearly was told that she was still an employee.

[00:34:40] Speaker 05:
So it's all about the letter, that the letter, what they said in the letter must prove that there was stuff in the record that was unclear or something.

[00:34:50] Speaker 05:
And what about OPM versus Richmond and other cases that just established that you can make a mistake and you can't rely on the mistake and

[00:35:00] Speaker 05:
If they're right that she did resign in 2013, she was late before she got the letter.

[00:35:06] Speaker 04:
And I would say I would distinguish Richmond because Richmond's a case about bad advice.

[00:35:10] Speaker 04:
That's all it is.

[00:35:11] Speaker 04:
It's a case about an employee or annuitant reaching out to the agency and saying, hey, what can I earn when I'm on retirement and not lose my retirement and was told something?

[00:35:22] Speaker 04:
That's just bad advice.

[00:35:24] Speaker 04:
And they shouldn't rely on bad advice.

[00:35:25] Speaker 04:
This is a determination.

[00:35:27] Speaker 04:
It's not bad advice.

[00:35:29] Speaker 04:
It's a determination.

[00:35:30] Speaker 05:
But they corrected it.

[00:35:31] Speaker 05:
I mean, you don't think that the government has ever sent a letter that was an error saying, hey, wait a minute, we say you're still on the record.

[00:35:40] Speaker 05:
And then they look more into it and they said, whoops, we were wrong.

[00:35:44] Speaker 05:
I mean, don't you think this happens routinely?

[00:35:46] Speaker 05:
Not routinely, perhaps, but it happens.

[00:35:49] Speaker 05:
And if you had filed

[00:35:51] Speaker 05:
based on that letter, then I think he might have something.

[00:35:54] Speaker 05:
Because if she had sent a casual letter to OPM in 2014 and they said, no, you're still on the rolls, so that they really were the reason that she didn't file within the one year, then I might think that might be a really hard case.

[00:36:09] Speaker 05:
But how does it affect the situation if she never filed and didn't get the erroneous letter until after her one year had expired?

[00:36:19] Speaker 04:
Because in April of 2015, she was told she was still an employee.

[00:36:26] Speaker 05:
That was a determination made by OPM.

[00:36:28] Speaker 05:
If the government is right and she resigned in 2013, then when she was told she was still an employee, that still would have been after the year had passed since she resigned, right?

[00:36:40] Speaker 04:
But it's a determination, it's not bad advice, it's a determination by OPM.

[00:36:46] Speaker 04:
And I think that's a significant difference under Richmond.

[00:36:51] Speaker 04:
I see I'm out of time.

[00:36:52] Speaker 04:
Thank you.