[00:00:00] Speaker 04:
Our final case this morning is number 24, 1918, Palmeri versus MSPB.

[00:00:07] Speaker 04:
Okay, Mr. Kirkpatrick.

[00:00:09] Speaker 03:
Thank you, Your Honors.

[00:00:10] Speaker 03:
May it please the court, Joel Kirkpatrick, appearing on behalf of my client, Petitioner Nicholas Palmeri, and I believe I have reserved four minutes.

[00:00:20] Speaker 03:
I think it's pretty clear from my brief and our position is that my client is and was entitled to a hearing

[00:00:28] Speaker 03:
on the proposed removal from DEA to challenge pursuant to alleged misconduct that he received.

[00:00:35] Speaker 04:
Well, he may be entitled to a hearing as a constitutional matter.

[00:00:39] Speaker 04:
Well, the question is, does the statute give him a right to a hearing?

[00:00:44] Speaker 04:
That's correct.

[00:00:45] Speaker 04:
And it says that it has to be done pursuant to regulations which have never been issued.

[00:00:51] Speaker 03:
Well, that's correct.

[00:00:52] Speaker 03:
However, the problem that I think the agency has here in this case

[00:00:56] Speaker 03:
is that they removed him under a statute, 752 of Chapter 5, that grants him rights to challenge at the mayoral court.

[00:01:06] Speaker 02:
They removed him under a statute because there were no regulations in place.

[00:01:11] Speaker 02:
The regulations that were supposed to apply to this, to an appeal here or to this procedure, don't exist.

[00:01:21] Speaker 03:
Well, I would say this.

[00:01:23] Speaker 03:
I would say that the agency has already conceded that they used the wrong statute when they proposed his removal.

[00:01:29] Speaker 03:
They said we made a mistake and it's immaterial.

[00:01:33] Speaker 03:
So when you confer, as I represent federal employees, that's all I do for misconduct.

[00:01:38] Speaker 03:
A couple times I'd come up here for cases.

[00:01:40] Speaker 03:
And I will say this, is that when there's a mistake made and there's due process violations, it could be the smallest thing.

[00:01:47] Speaker 03:
It could be the fact that they used the wrong statute in this case.

[00:01:50] Speaker 03:
Those cases are reversed and sent back to let the agency fix the problem, to correct their mistake and start over.

[00:02:01] Speaker 03:
That's at the very least what I'm asking this court to consider here.

[00:02:05] Speaker 03:
And if we have a statute under 5 USC 3131, which is basically what we're here to talk about, is the fact that they lay out what's going to happen, but they don't say what will happen if in fact there's going to be a hearing.

[00:02:20] Speaker 03:
And as the agencies pointed out, these procedures haven't been set forth.

[00:02:27] Speaker 03:
So what do you do if you're an employee who's never been told this or received this, and I think it's laid out pretty clearly, bringing it up here, is that it's yet to be decided and promulgated by the attorney general.

[00:02:41] Speaker 03:
At some point, the agencies and the government has to be held accountable for not having certain regulations in place.

[00:02:47] Speaker 03:
It's not where they say, we will have regulations in place, they don't have any in place.

[00:02:52] Speaker 03:
And when I come before courts all the time and I say agencies, I should say that to the merit board, if there is certain things that aren't laid out, I know certain federal employees don't have board appeal rights.

[00:03:03] Speaker 03:
Why?

[00:03:04] Speaker 03:
Because it's written in the statute or it's written in the agency regulations that you don't have any board appeal rights.

[00:03:11] Speaker 00:
These may be real defects with the current structure of the system, but I don't see how that gives the MSPB authority to hear your client's case.

[00:03:24] Speaker 00:
I mean, the MSPB ultimately is a creature of statute.

[00:03:28] Speaker 00:
And if the statute is defined in such a way that it excludes from the MSPB appeals by

[00:03:38] Speaker 00:
DEA SES members then then I don't know if then the MSPB is not the right forum perhaps in district court you can make this kind of a case.

[00:03:51] Speaker 03:
Well the agency hasn't laid out any redress they always lay out agencies always lay out what you can do if you're dissatisfied you can file an EEO

[00:04:00] Speaker 03:
If you're dissatisfied, you can go to the Office of Special Counsel and claim whistleblowing.

[00:04:05] Speaker 03:
If you're dissatisfied, you can file at the MSPB or whatever the case may be.

[00:04:09] Speaker 03:
There's no other provisions that I know as a practicing attorney in this field where I can go to district court and challenge the fact that he was going to be fired for alleged misconduct when it's laid out in how they fired him.

[00:04:24] Speaker 03:
Now, I understand we're here trying to figure out the absence

[00:04:29] Speaker 03:
of what 3131 says we can or can't do, but it certainly doesn't say you can't.

[00:04:36] Speaker 03:
So what I have to say is, and the reason we bring this to you today, Your Honors, is the fact that at some point, when he is removed under a statute that grants the appeal rights, then the ultimate resolution is to send it back and make them correct.

[00:04:57] Speaker 03:
Correct their mistake.

[00:04:58] Speaker 03:
But who makes it correct?

[00:04:59] Speaker 03:
Well, in the MSPB, or in this case, this form, this form has the power to say, you know what, this is a defect, this is a due process problem, you didn't fire him under the wrong statute, you conferred board rights, as it's kind of laid out in the brief, I don't have to reiterate that, I think it's pretty clear on that, it's that it needs to be sent back for them to correct the defect that they had.

[00:05:24] Speaker 03:
Then they can go ahead and remove him under the proper

[00:05:28] Speaker 03:
You know, statutory requirements.

[00:05:33] Speaker 03:
Look, I think when you see things like this that happen, Your Honors, where the agency is not clear, or I should say the statutes aren't clear and don't give you certain redress, the agency relies on the argument, well, if it's not there, we have to.

[00:05:48] Speaker 04:
Statute seems to be pretty clear that there are no hearing rights except pursuant to regulations issued by the Attorney General which have never been issued.

[00:05:59] Speaker 03:
You know, entitled to be held or decided pursuant to procedures established.

[00:06:03] Speaker 03:
And where are they?

[00:06:05] Speaker 03:
Why haven't they been established?

[00:06:06] Speaker 03:
And I understand what you're saying, Your Honor.

[00:06:08] Speaker 03:
I'm not trying to be cute or splice semantic here with you.

[00:06:12] Speaker 03:
What I'm saying is, is that had the agency handed him his charging document, which is the proposed removal, and said we're firing you under this statute, 752,

[00:06:23] Speaker 03:
which confers rights under the five USC 7543 that allows you to challenge these board appeal rights, then they need to be held accountable for this, and they need to correct that, and if they charge him again after you correct this and send this back, then he'll challenge it in the way that he has in front of him to do, however that might be.

[00:06:48] Speaker 02:
Is this case influenced in any way by

[00:06:54] Speaker 02:
the fact that your client was with the DEA?

[00:07:00] Speaker 03:
Well, if you're asking me if it's because he's with DEA, Your Honor?

[00:07:05] Speaker 02:
DEA, any confidentiality or any special reasons as to that?

[00:07:14] Speaker 03:
No, if you're asking me any clearance matters, there's no security clearance issues that I'm aware of for this.

[00:07:21] Speaker 03:
I mean, there's certainly always certain things within

[00:07:25] Speaker 03:
the actual charges themselves, but it's laid out in the charging document, which I believe is part of the Joint Appendix.

[00:07:33] Speaker 03:
But no, there's nothing like where I may run into that Department of Defense with clearance issues and so forth.

[00:07:40] Speaker 03:
But that's not an issue here.

[00:07:42] Speaker 03:
The issue is I think it's clear and I think it's pretty simple.

[00:07:47] Speaker 03:
And I have to convince you of this.

[00:07:48] Speaker 03:
And I don't know if I can, but I'm doing my best to say, look, the agency must be held accountable if they're going to charge my client under a statute that grants board appeal rights and say, well, sorry, it's okay.

[00:08:02] Speaker 03:
We made a mistake.

[00:08:04] Speaker 03:
We're just going to get that ignored because we know we can't grant them rights because,

[00:08:08] Speaker 03:
No provision has been put in place to say what would happen if an SES employee, once he steps over that threshold, from being a grade 15, which he was, into being an SES.

[00:08:21] Speaker 04:
I put a little- Did they cite the wrong statute?

[00:08:23] Speaker 03:
I'm sorry?

[00:08:24] Speaker 04:
Where's the citation to the wrong statute?

[00:08:27] Speaker 03:
Well, I believe that is in the- I want to say it is at Appendix 237.

[00:08:39] Speaker 03:
And this is the charging document.

[00:08:42] Speaker 03:
And it lays out, as Judge Randi just asked about, all the charges in there.

[00:08:47] Speaker 03:
So it's not something that's top secret clearance.

[00:08:50] Speaker 03:
But if you look at the top of page 237, this letter, it's a notice of proposed removal action taken in accordance with five USC, or five quarter federal regulations, excuse me, my mouth is dry, part 752.

[00:09:06] Speaker 03:
And as the agency concedes on page 27 of their motion, they admit that this is the wrong statute that he was proposed to be removed for.

[00:09:16] Speaker 03:
And they even admit that this provides and grants board appeal rights through USC 7543D.

[00:09:23] Speaker 03:
So if there's a mistake in the charging document, the agency must be held accountable for the due process violations.

[00:09:31] Speaker 03:
And the redress for that and the correction for that is for this court.

[00:09:37] Speaker 04:
What's that?

[00:09:38] Speaker 04:
Why isn't the wrong citation harmless error?

[00:09:42] Speaker 03:
Well, I think because the whole genesis of my argument, Your Honor, is that under that citation, you have board appeal rights, which leads my clients to believe that he can challenge this removal.

[00:09:55] Speaker 03:
under their theory of... If they decided the right statue, how would you have perceived it?

[00:10:01] Speaker 03:
That's the wrong statue.

[00:10:03] Speaker 03:
That's not the statue that he should have been proposing.

[00:10:05] Speaker 04:
Yeah, but if they decided the correct statue, the one that they're relying on now, what difference would it have made?

[00:10:13] Speaker 03:
Well, I mean, should the government be held accountable when they fire someone, what difference would it make?

[00:10:19] Speaker 03:
It'd make a lot of difference.

[00:10:20] Speaker 03:
I may not even be here today.

[00:10:21] Speaker 00:
Just trying to figure out, was there any prejudicial error?

[00:10:25] Speaker 00:
Assuming that this was erroneous to cite to part 752 of the CFR, how did that prejudice this case?

[00:10:35] Speaker 00:
And it's unclear to me, and perhaps to Judge Dyck as well, what difference does it make?

[00:10:43] Speaker 03:
Well, that's a good question, Your Honors.

[00:10:45] Speaker 03:
And I wish I could answer it in a way that would satisfy you.

[00:10:48] Speaker 03:
But I would say this, is that if you're going to,

[00:10:53] Speaker 03:
is a practitioner who represents people being fired daily.

[00:10:57] Speaker 03:
And there's always certain things that the board looks for into overturning when there is a significant error.

[00:11:07] Speaker 03:
It could be relied upon, the deciding official has material that he never relied upon previously or something like that, or in this case, it's the wrong statute.

[00:11:17] Speaker 03:
I mean, the only thing I could say is I don't have evidence that it was done

[00:11:22] Speaker 03:
Nefariously.

[00:11:24] Speaker 03:
But it's still in error.

[00:11:25] Speaker 03:
That should have happened.

[00:11:26] Speaker 03:
But I see that my time for is done and I think I have about three and a half minutes on rebuttal.

[00:11:37] Speaker 04:
Okay.

[00:11:37] Speaker 04:
Ms.

[00:11:37] Speaker 04:
Smith.

[00:11:39] Speaker 01:
Good morning.

[00:11:39] Speaker 01:
May it please the court?

[00:11:40] Speaker 01:
Catherine Smith for the MSPB.

[00:11:42] Speaker 01:
I'd like to start just by returning to the conversation that Mr. Palmieri's counsel just had in pointing out that this is not actually a statute that's in the charging document.

[00:11:51] Speaker 01:
It's a regulation.

[00:11:53] Speaker 01:
And the agency's erroneous citation to a regulation that doesn't apply cannot override a clear statutory exception.

[00:12:00] Speaker 01:
Additionally, they did not actually remove Mr. Palmieri.

[00:12:03] Speaker 01:
He resigned.

[00:12:04] Speaker 01:
after making his statutorily permitted reply.

[00:12:07] Speaker 01:
And the agency actually issued a notice saying that if he hadn't resigned, they would have removed him, in which they corrected their previously erroneous citation to this regulation.

[00:12:17] Speaker 04:
Does he have a constitutional right to a hearing?

[00:12:22] Speaker 01:
I would say yes.

[00:12:23] Speaker 01:
I think he does.

[00:12:25] Speaker 01:
Although I don't want to concede that for the DEA if this should be taken into another forum.

[00:12:30] Speaker 01:
But that right is not before the MSPB.

[00:12:33] Speaker 01:
If he can go somewhere, he may be able to go to district court under this court and the DC Circuit's president and the two Asparagara cases.

[00:12:42] Speaker 01:
But in no event can he come to MSPB.

[00:12:44] Speaker 01:
MSPB is a form of limited jurisdiction.

[00:12:46] Speaker 01:
We cannot hear a standalone constitutional claim.

[00:12:49] Speaker 01:
It must be coupled with an action that is under our jurisdiction by statute, and this is not.

[00:12:55] Speaker 04:
Why have the regulations not been issued for all these years?

[00:13:00] Speaker 01:
I can't speak about it, Your Honor, because I don't represent the DEA or the Attorney General.

[00:13:06] Speaker 01:
The DEA is under, I believe, the Department of Justice.

[00:13:08] Speaker 01:
That's why the Attorney General has the authority to issue those regulations.

[00:13:11] Speaker 01:
MSPB is a separate agency and we don't have authority to review that.

[00:13:16] Speaker 00:
Do you read that statutory provision as demanding and requiring the Attorney General to issue regulations to provide for a hearing or appeal rights?

[00:13:26] Speaker 01:
I don't.

[00:13:29] Speaker 01:
I think it says that he may do so, regardless they afforded the appeal rights, the pre-removal appeal rights that are provided in the statute.

[00:13:40] Speaker 01:
So if there had been additional process provided by regulation, that would have been additional to what the statute requires, or perhaps it would have just carried out the statutory intent by specifying a particular forum.

[00:13:52] Speaker 01:
But he got the process that was provided in the statute.

[00:14:00] Speaker 04:
Well, not exactly.

[00:14:01] Speaker 04:
I think the statute contemplates a hearing pursuant to regulations issued by the Attorney General and he didn't get that because the regulations were never issued.

[00:14:11] Speaker 01:
Well, I think, respectfully, Your Honor, I don't think that's quite correct.

[00:14:14] Speaker 01:
The statute says that, and then this is 3151A5D,

[00:14:19] Speaker 01:
that the pre-removal procedures have to be consistent with sections A, B, and C of 7543, except that any hearing or appeal to which he may be entitled shall be held or decided pursuant to procedures established.

[00:14:32] Speaker 01:
I think that reference is to 7543C, which in turn references

[00:14:39] Speaker 01:
Excuse me, 7543B.

[00:14:40] Speaker 01:
And there, I'm sorry, C, 7543C, it says an agency may provide by regulation for a hearing which may be in lieu of or in addition to the opportunity to answer provided under section B2, subjection B2 of this section.

[00:14:56] Speaker 01:
So I actually don't think this is even talking about an MSP, in a post removal appeal at all.

[00:15:01] Speaker 01:
I think this is talking about process prior to the removal or suspension.

[00:15:06] Speaker 01:
And the statute contemplates that you can make

[00:15:09] Speaker 01:
of some kind of response and that the agency, if it wants to, can provide a specific hearing or appeal opportunity in addition to that response or in lieu of that response.

[00:15:19] Speaker 04:
I don't understand.

[00:15:20] Speaker 04:
You're saying this is a pre-removal procedure?

[00:15:23] Speaker 01:
I am.

[00:15:25] Speaker 01:
And I recognize that I think we may have.

[00:15:27] Speaker 00:
It says appeal.

[00:15:29] Speaker 00:
It's post-decision.

[00:15:32] Speaker 01:
Well, if it's post, and I believe in our brief we argued it was post-decision because that was the arguments made below.

[00:15:38] Speaker 01:
And if it's post-decision, it's the same answer, which is that it's not before the MSPB.

[00:15:42] Speaker 01:
And so even if he had to have had something, it's not before the MSPB.

[00:15:46] Speaker 01:
The statute forbids it coming to the MSPB.

[00:15:50] Speaker 01:
And that is dispositive of this case.

[00:15:52] Speaker 01:
The board correctly held that.

[00:15:54] Speaker 01:
But if it's, and I can rest on that.

[00:15:59] Speaker 01:
Unless you have.

[00:16:00] Speaker 02:
Are we missing something here?

[00:16:03] Speaker 02:
Are there any reasons

[00:16:05] Speaker 02:
What are the reasons as to why the regulations were never promulgated, which is contrary to the statute.

[00:16:12] Speaker 02:
The statute seems very clear, and it's mandatory and charging in its message that these procedures are to be set up.

[00:16:23] Speaker 02:
If they haven't been, then why does that not give us the basis to send this back and ask, why haven't you done this yet?

[00:16:33] Speaker 01:
Because as this court found in Aspergera, to the extent that you can look at this issue, because you have jurisdiction over an MSPB decision, the MSPB did not have jurisdiction over this issue.

[00:16:43] Speaker 01:
The MSPB doesn't have any authority to order the Attorney General to promulgate regulations.

[00:16:49] Speaker 04:
You'd have to do that under the APA in this report.

[00:16:51] Speaker 01:
I think that's right.

[00:16:52] Speaker 01:
And so to the extent you could send it back, it could not come back through the board.

[00:16:58] Speaker 02:
And he still has that remedy available?

[00:17:01] Speaker 01:
I mean, I think there might be a timeless problem, given that it's been many years and the MSP.

[00:17:07] Speaker 04:
There's no time limit about applying for due process relief in district court, right?

[00:17:13] Speaker 01:
Well, I think specifically, Ryan, that'd be up to the district court.

[00:17:15] Speaker 01:
They could look at whether it's timely.

[00:17:17] Speaker 01:
They could look at equitable tolling.

[00:17:18] Speaker 01:
I can't speak to.

[00:17:19] Speaker 01:
what the district court would find or what the DEA, which would be the respondent or the defendant in district court, would represent.

[00:17:26] Speaker 00:
Are you saying there's a time limit on when a party can petition for rulemaking in a district court action?

[00:17:36] Speaker 01:
That's not my specialty.

[00:17:37] Speaker 01:
I'm afraid I don't know.

[00:17:37] Speaker 01:
But if there is one, he is several years beyond what I would expect that to be.

[00:17:42] Speaker 01:
I mean, petition for rulemaking, I suppose, would be different from challenging his particular personnel action against him.

[00:17:49] Speaker 01:
But even if he petitioned for rulemaking and the attorney general issued these regulations, there'd have to be some kind of retroactivity question given that he's already been removed.

[00:18:00] Speaker 01:
Excuse me.

[00:18:01] Speaker 02:
Any prospective rulemaking authority would be the attorney general, correct?

[00:18:05] Speaker 01:
Yes.

[00:18:05] Speaker 01:
That's what the statute says.

[00:18:06] Speaker 01:
The statute specifically provides the attorney general with that authority.

[00:18:10] Speaker 01:
It does not provide that authority to the MSPB.

[00:18:13] Speaker 01:
It does not provide the MSPB authority to review those regulations or lack thereof.

[00:18:23] Speaker 04:
Okay, anything more?

[00:18:27] Speaker 01:
There's no further questions.

[00:18:35] Speaker 03:
Thank you.

[00:18:36] Speaker 03:
Just briefly, Your Honors, I do want to correct.

[00:18:39] Speaker 03:
I did say Section 31, or Statute 3131, I meant 3151.

[00:18:43] Speaker 03:
So thank you.

[00:18:46] Speaker 03:
Council reminded me of that when she was up here.

[00:18:49] Speaker 03:
Also, I wanted to also correct.

[00:18:51] Speaker 03:
that yes, he did involuntarily retire prior to the expiration of the proposed removal.

[00:18:57] Speaker 03:
Involuntary retirement is an adverse action that is challengeable at the board just for the court certification.

[00:19:06] Speaker 03:
I'm not really certain what the government's position is that they're forbidden to take this to the MSBB.

[00:19:14] Speaker 03:
I know we've discussed this and it's been briefed pretty clearly in the case here is that,

[00:19:21] Speaker 03:
The redress for the failure of the agency to properly fire him under the proper statute, proper regulation, whatever it might be, should be something that should be remanded and corrected.

[00:19:33] Speaker 03:
And the procedures for that is if it's sent back, it's sent back to the original court, the judge there, and the proceedings, well actually it's sent back to the agency, and they have to repropose.

[00:19:46] Speaker 03:
And if they repropose,

[00:19:48] Speaker 03:
then we'll address it.

[00:19:49] Speaker 03:
It's not the first time that's happened here.

[00:19:51] Speaker 03:
I've had a lot of cases remanded for whatever reason.

[00:19:54] Speaker 00:
Would Mr. Elmery get back pay under those circumstances?

[00:19:58] Speaker 03:
Yes.

[00:20:00] Speaker 03:
He would.

[00:20:03] Speaker 03:
And I've had employees that have been voluntarily retired in the past that have gotten reinstated and usually works out in settlement.

[00:20:12] Speaker 03:
But the point is, is that the agency, and just one last comment on 3151,

[00:20:17] Speaker 03:
It really has put employees in a no man's land.

[00:20:20] Speaker 03:
What do I do if I get accused of misconduct, and I'm allowed to respond to that in writing, I'm allowed to have an oral reply with a design official, and in every other situation where it's clear that you have board appeal rights, or it never says you don't have board appeal rights, you can challenge to the authority, in this case, the MSPB for federal employees.

[00:20:47] Speaker 03:
There's nothing here that says you don't have that.

[00:20:50] Speaker 03:
I'm reminded being in this courtroom, I have represented court employees, probation officers at U.S.

[00:20:56] Speaker 03:
District Courts, and it's very clear, it's laid out what happens, that the chief judge generally, or who he designates, he or she designates, will be the assigned official, and that's it.

[00:21:06] Speaker 04:
Whatever that decision is, done.

[00:21:08] Speaker 04:
To reframe your argument, it seems to me perhaps what you're saying is that his resignation was involuntary because the

[00:21:16] Speaker 04:
regulations have never been issued, and therefore he didn't have a remedy to challenge a forced removal.

[00:21:28] Speaker 03:
It was in a voluntary retirement, Your Honor, which is an adverse action, but I understand what you mean.

[00:21:33] Speaker 03:
Yes, you're right.

[00:21:34] Speaker 03:
He never had a chance to challenge it because the DEA made it clear that he wouldn't go anywhere, and obviously we instituted this action and appealed here for the court to

[00:21:45] Speaker 03:
to basically take this and realize that there's too many holes here.

[00:21:49] Speaker 02:
There's too many unknowns and... Do you have any idea how many people are in the FBI, DEA, Senior Executive Service?

[00:21:58] Speaker 03:
There's not many.

[00:21:59] Speaker 03:
I don't know how many there are.

[00:22:00] Speaker 03:
I've represented several SES over the years, but not with DEA or FBI.

[00:22:04] Speaker 03:
This is the first.

[00:22:05] Speaker 03:
I've represented them.

[00:22:10] Speaker 03:
I see my time's over and I appreciate unless you have any other further questions.

[00:22:14] Speaker 04:
Okay, thank you, thank you.