[00:00:00] Speaker 02:
And we'll begin with number 241803, Duran against the Department of Justice.

[00:00:09] Speaker 03:
May it please the court, Stephen Goldensweig for petitioner Teresa Duran. With the court's permission, I'd like to reserve three minutes for rebuttal.

[00:00:18] Speaker 03:
This case turns on two fundamental errors. First, the board sustained Ms. Duran's removal on a charge the agency never pleaded. or charged, a theory of high probability of self-injury that appears nowhere in the proposal, which is at Appendix 220 to 228, nor the decision at Appendix 149 to 152. Second, the board reached that conclusion only by reading an FMLA flare-up certification designed to support intermittent leave one to two days per month as if it were a permanent total medical restriction.

[00:00:51] Speaker 03:
My argument has two parts.

[00:00:53] Speaker 03:
First, the board sustained Ms. Duran's removal on a theory the agency never pleaded or charged, high probability of self-injury. The only evidence the board cited for that theory in FMLA flare-up form cannot, as a matter of law, support a finding of permanent medical inability.

[00:01:11] Speaker 03:
Second, the post-removal OPM disability application cannot rescue the removal. It postdates the deciding official's analysis and under Cleveland v. Apology Management System's corpse.

[00:01:23] Speaker 04:
Can I ask you to look at the proposed removal? Yeah. Because I don't see what you're talking about.

[00:01:30] Speaker 04:
I mean, the basis for it is medical inability to perform duties. Yes, Your Honor. And they found she couldn't perform her duties. Yes. Not just because of the FMLA request where she said she needed an accommodation, but because of her disability request where she certified that she couldn't perform her duties.

[00:01:51] Speaker 04:
And the administrative judge relied on that. And in addition to that, heard her live testimony and found it not credible. How can we touch those credibility determinations when the administrative judge said, I don't believe her. I believe the documents, which at the time she was certifying she couldn't do her job.

[00:02:13] Speaker 03:
Your Honor.

[00:02:15] Speaker 03:
The Briley case itself, which was cited, recognizes the credibility findings are reviewable when they're inherently improbable, discredited by undisputed evidence or contrary to physical facts. Here, the AJ's credibility finding rests on a misreading of Cleveland. She discredited Ms. Duran's testimony on an apparent inconsistency that Cleveland says is actually permissible. It's not that it's permissible.

[00:02:39] Speaker 04:
It's that in her case, she's certified, I can't do my job. So I should get disability. Well, what she certified, Your Honor, was I can't do my job without an accommodation.

[00:02:49] Speaker 03:
Okay, show me in her disability application where it says that.

[00:02:54] Speaker 03:
It doesn't say that directly in the application.

[00:02:55] Speaker 04:
That's the problem. But the implication, Your Honor, is... No, the implication is not that. The implication is what the document says. And the document says I need disability because I can't perform my job duties, right? It doesn't caveat it. I understand you can apply for disability and continue to challenge a removal, but you can't do it with flatly inconsistent reasoning, which is what she did here.

[00:03:22] Speaker 03:
Your Honor, she explained at trial that she signed it. The administrative judge found at trial that she was not credible, right?

[00:03:30] Speaker 03:
That was the finding. What we're saying is the credibility.

[00:03:32] Speaker 04:
What's inherently improbable about not believing her when prior documentary evidence, more close in time to these events, contradicted her trial testimony?

[00:03:45] Speaker 04:
Sorry, say again, Your Honor?

[00:03:47] Speaker 04:
I don't understand how what she testified at trial, the credibility finding is somehow so improbable that it can't be deferred to. when the credibility finding by the administrative judge is consistent with her actual statements and documents she submitted to the agency.

[00:04:07] Speaker 03:
It's her who changed the story at trial. No, Your Honor. It's against the weight of the evidence. There's significant other evidence that's in there that supports what she actually testified to a trial.

[00:04:21] Speaker 01:
Counsel, do you at least agree that there's an inconsistency between the sworn statements and the disability annuity application and her testimony?

[00:04:29] Speaker 03:
There's an apparent inconsistency, but that's all it is, is apparent. Because the Bruner presumption that's generally... You keep talking about the presumption.

[00:04:38] Speaker 04:
You need to point me to somewhere in that disability application that suggests she only meant that she couldn't perform without an accommodation, not that she couldn't perform at all.

[00:05:11] Speaker 03:
Your Honor, there are several admissions in the record by the agency that the court did not weigh, and especially those by Mr. Graham, the deciding official.

[00:05:27] Speaker 01:
I don't think you answered Judge Hughes' question. I think he wants an appendix page where you can point him to exactly what he asked for.

[00:05:35] Speaker 03:
A direct, you're talking about the testimony of, the statement in the OPM application or the testimony at trial, Your Honor?

[00:05:46] Speaker 04:
And you're saying that her testimony that she was only disabled and couldn't work if she didn't get an accommodation, is flatly inconsistent with her disability application. And you say it's not. So where in the disability application does she suggest that her application was only conditional on her not getting an accommodation?

[00:06:11] Speaker 03:
It doesn't say it directly in the application. It doesn't say it at all, right? Not in the application.

[00:06:18] Speaker 03:
Yes, Your Honor.

[00:06:18] Speaker 02:
May I continue?

[00:06:24] Speaker 02:
Can you just clarify something for me? In order to get a grant of the disability application, would it make a difference whether she was unable to work full stop or unable to work without accommodations?

[00:06:44] Speaker 03:
Thank you, Your Honor. This is actually one of the main points that we're asserting here is that When it comes to OPM applications in general, the reason the Berner case exists is because there are going to be situations where the employee is put essentially into a Hobson's choice of having to decide, you know, to go apply for disability retirement or contest the removal.

[00:07:17] Speaker 03:
And you essentially get, you know, hamstrung into one or the other.

[00:07:24] Speaker 02:
I guess I'm looking for something slightly more direct. If an applicant for disability retirement said, I'm able to work, but not without accommodations, what would OPM do or have to do?

[00:07:44] Speaker 03:
They still should grant it. If the agency says no accommodations available, and there's a removal for medical inability to perform, and then there's an application for OPM disability retirement, they still should grant it in that instance.

[00:08:09] Speaker 03:
In that instance, now there is a reality of the situation.

[00:08:15] Speaker 04:
Because she's unable to perform the job as required by the agency. Because they said this job requires whatever, won't give her the accommodation, requires at least one day in the office, blah, blah, blah, all that kind of stuff. And if they're allowed to do that, if it's reasonable, and if she can't fulfill those duties, then she can apply for disability application. Yes. But she didn't say, I can't do it without an accommodation. She said, I can't work on a computer at all, and therefore I can't do my job.

[00:08:48] Speaker 04:
She had been telling the agency for... No, no, no, no. You want to run around the disability application, but that's in the record. That's what the AJ relied on. That's what the board relied on and wore on a substantial evidence review. So unless you can point to me something in that disability application that suggests that the administrative judge and the board have read that application incorrectly, then there's substantial evidence for their decision that she couldn't perform her job duties at all.

[00:09:18] Speaker 03:
But that's not – that's a – that is a misreading, a misuse of the OPM application process.

[00:09:33] Speaker 04:
Well, you keep saying it's a misreading, but you refuse to point to me anywhere in the actual application in the appendix that suggests I'm misreading it, the board misread it, or the AJ misread it.

[00:09:47] Speaker 04:
You have something in the actual application that suggests we're all misreading it.

[00:09:52] Speaker 03:
Not the application. Our contention is that the application itself wouldn't even meet that burden because there's so much evidence to the contrary.

[00:09:59] Speaker 04:
But that's a weighing of the evidence.

[00:10:02] Speaker 04:
And we have all the record evidence, including your client's testimony, which the AJ found not credible. and made a factual determination. We don't re-weigh all that evidence. And particularly when it's based on a credibility determination about weighing her testimony against the actual record evidence of the documents, then there's not much we can do about it.

[00:10:27] Speaker 03:
Well, under LeChance, she's...

[00:10:30] Speaker 03:
it has to be the way that the agency charges it. It has to be consistent with her receiving notice. The standard that was ultimately, and this is part of the legal argument involved, rather than the factual reweighing of the evidence, is that the high probability of self-injury is something the agency never pled. What they pled was that she just couldn't perform it. But in the board's decision, the Board actually says that the agency failed to meet that burden.

[00:11:03] Speaker 01:
Do you at least agree that on appeal here to us in your opening brief, you don't challenge the Board's use of the contents of the disability annuity application in the medical inability determination?

[00:11:16] Speaker 01:
I don't challenge the Board's use of the contents of the disability annuity application in the medical inability determination.

[00:11:25] Speaker 03:
The board is permitted under the current law to consider it, but the way it considered it, our argument, is that it violated Cleveland.

[00:11:41] Speaker 03:
Because under Cleveland, it's got to be reconciled with Mr. N's testimony, not just automatically accepted right off the bat. That's the step that's missing here.

[00:11:57] Speaker 03:
And the reconciliation makes sense given the length of record that she had.

[00:12:02] Speaker 01:
She was a – she had been receiving – So does your view of proper reconciliation mean that you think the administrative judge has to find her testimony credible? Is that what your view is? Okay, then what is your view of proper reconciliation?

[00:12:20] Speaker 03:
The problem is that the agent never actually – Without much explanation on that reconciliation, she made the conclusion, and that was part of the problem.

[00:12:33] Speaker 03:
She just essentially says, okay, because it's self-serving, that it's not credible, but she actually credits Ms. Duran's testimony in other areas, and then in this one area decides not to credit it and doesn't other than the fact that it's self-serving, doesn't really provide anything. And that violates Cleveland.

[00:12:58] Speaker 02:
You are into your rebuttal time.

[00:13:03] Speaker 03:
So I will reserve. Thank you. Thank you.

[00:13:25] Speaker 00:
Good morning, Your Honors. May it please the Court. We're here today because the petitioner is asking that the Court disregard the sworn statements that Ms. Duran made in her disability application on which the administrative judge relied to determine that she was properly removed for medical inability.

[00:13:41] Speaker 04:
I mean, it does appear that throughout the time before her removal, she was asking for accommodations that would allow her to do her job. And it doesn't seem anywhere that she said, I can't until the disability application that she couldn't do her job at all. And I know that in the FLMA stuff, there's some stuff from the doctor that says she can't work on a computer, but it seems like I would read that in the context of what the application is, which is for an accommodation.

[00:14:15] Speaker 04:
And she wasn't asking for no computer. She was asking for shades and working at home a lot in dark rooms. And she didn't at least an FMA application says she can never work on a computer at all. And so why don't we consider that as part of the background and the agency's response? Because the application, help me with the timing, the application for disability is either at least after the proposed removal right or after the removal itself.

[00:14:48] Speaker 04:
And so the agency certainly wasn't relying on statements in her proposed removal or the disability application for her removal. It was relying only on the documentary evidence before it, which seems pretty thin on whether she couldn't work on a computer at all.

[00:15:09] Speaker 00:
Well, we would agree that the board relied both on the disability application and on the FMLA certification and other evidence presented by the agency.

[00:15:20] Speaker 04:
So we don't dispute. Putting aside the disability application, where I think it's pretty clear she said, I can't do any work on a computer at all, what's your best piece of evidence that would support the removal without that, that she can't do work on?

[00:15:35] Speaker 00:
Two things, Your Honor. First, the FMLA certification certainly is part of it. You know, we argue in our briefs that that is very consistent with the disability application, but you can see from the face of that certification that, in fact... Could you point me to that? Yes. It's in the appendix at page 1212.

[00:15:57] Speaker 00:
And what we see just from a plain reading of that certification... is that there's a portion of the form on page 1212.

[00:16:06] Speaker 02:
Right, but that's the point that Judge Hughes was referring to when it says work on computer. It's not qualified by terms, but in context.

[00:16:20] Speaker 02:
Why wouldn't one read it to mean?

[00:16:22] Speaker 00:
Well, first I would agree that the plain language here says she cannot work on a computer. That's not qualified. There's only the second section of of the application number seven on page 1213, where her doctor additionally says that she has to have some restrictions for her flare-ups. But to answer your question in addition to that, like first, the context here is that she is directed not to work on a computer or attend meetings occurring in brightly lighted rooms. That second qualification, attend meetings in lightly lit rooms, that's something that has always been a continuing and ongoing restriction.

[00:17:00] Speaker 00:
is featured in all of her accommodation requests going back from 2011 through 2015.

[00:17:05] Speaker 00:
So the fact that the work on the computer was paired with that restriction does suggest in that context that it was also intended as an ongoing restriction. But even if that were not the case, this certification indicates a new diagnosis that is a baseline Chiari malformation.

[00:17:23] Speaker 00:
You can see that at number four on page Appendix 1212. That new diagnosis was what... triggered, in addition to work on the computer, the agency to ask for clarification because it seems that despite her many years of accommodation requests, this diagnosis was never mentioned. It could have triggered additional restrictions and a need for an additional accommodation if possible, and that's what the agency reached out to clarify.

[00:17:51] Speaker 04:
And she refused to respond to that.

[00:17:53] Speaker 00:
She declined to respond. She was given a month to respond. She didn't reach out to her doctor. The agency offered to get a waiver so they could reach out directly. She declined to provide the waiver. So there was no opportunity for the agency to make any decision based on what reasonable accommodation she might have been able to offer. But work on a computer is something that's not only – impossible to ignore as one of the essential functions of her current position. But as the agency found, there was no position within ATF that working on a computer was not an essential function for.

[00:18:29] Speaker 00:
So essentially, they had no option but to seek removal of her at that point because she was not cooperating.

[00:18:39] Speaker 00:
And as the administrative judge suggested, and I think is relevant for the court to consider, this is the understanding of this form in conjunction with a disability application absolutely explains all of the issues with Ms. Duran's failure to seek or provide additional clarification from her doctor. We can see that because the disability application specifically talks about the fact that Mr. Ann, quote, said that, referring to a period beginning August 2011, my doctor advised me on numerous occasions that I would not be able to continue to work.

[00:19:21] Speaker 00:
So she appeared to be having ongoing conversations before her removal with her doctor that she would not be able to continue to work at all.

[00:19:28] Speaker 01:
What page were you just reading from?

[00:19:30] Speaker 00:
I'm sorry, Your Honor, that's the appendix 490 to 491. It begins on 490.

[00:19:36] Speaker 00:
She, in fact, goes on to say that she could not engage in physical activities such as driving or walking for any extended distances. She couldn't do household chores. She couldn't and was limited in her ability to self-care. So she describes her disability as quite significant, and this was, again, at the point before her removal had taken place.

[00:19:58] Speaker 00:
You also asked Judge Hughes, the petitioner, to explain what in the application was inconsistent with her medical removal. And specifically, he discussed her somehow intending to add the words without a reasonable accommodation to her narrative. That's also in his brief. But in fact, her disability application is not silent on that issue.

[00:20:30] Speaker 00:
She asserts, again, as a sworn statement, no accommodations are possible because of the nature, extent, and severity of her medical condition. That's on page 49 of the appendix.

[00:20:42] Speaker 04:
Even if this case law that allows you to do both provisionally could be applied, The application here doesn't indicate an intent to do that of pursuing accommodations and disability if they're not granted at the same time.

[00:21:01] Speaker 00:
That's exactly right, Your Honor. And it's clear, since you brought up the issue of case law, that the law did allow the administrative judge to consider the disability application.

[00:21:10] Speaker 00:
The board cited specifically the Sanders case that was affirmed by the Federal Circuit. In Sanders, they found that it was entirely proper for the board to consider post-removal actions to inform medical disability removal, and that is what happened here.

[00:21:30] Speaker 02:
Can you address the point Mr. Goldenzweig made about the reliance on a concern about self-inflicted injury?

[00:21:42] Speaker 00:
To the extent that my...

[00:21:45] Speaker 00:
colleague has argued that the agency in its removal decision did not cite the concern about self-harm. We would agree that the charges do not specifically discuss the potential for injury from Mr. Ann's condition. However, the narrative clearly supports it. There's a lot of information out there about forward-looking ability to perform and how her medical conditions would likely to be disabling in that situation, one could certainly easily infer that the consequence of not being able to perform with those conditions would be an injury to herself.

[00:22:25] Speaker 02:
And we know that the petitioner reached the same... Just on kind of the simple logic that if working with a computer and working under lights, etc., or working during flare-ups is not possible... then if she's forced to do that, she will be hurting herself.

[00:22:46] Speaker 00:
That's exactly right, Your Honor. I would also note that the agency's responsibility is to give notice in the removal decision and the charges, and the petitioner certainly had notice, and we know that they did because in their response to the proposed removal, They cited the standard and included injury to herself or others as one of the things that they discussed. So there clearly was notice that this was one of the bases for the agency's decision.

[00:23:21] Speaker 00:
And the petitioner, aside from that, made no claim that there was harm resulting from any failure in the charge itself that her medical inability was due to her concern about future harm.

[00:23:38] Speaker 00:
I would say also that The petitioner has failed to actually make this argument below before the board, so they really should have been considered to have waived it at this stage. Unless the court has further questions?

[00:23:53] Speaker 00:
Thank you. Thank you.

[00:24:01] Speaker 02:
Mr. Goldenspeicher, you have the time shown on your clock.

[00:24:04] Speaker 03:
Okay. Regarding waiver, the board raised it for the first time in 2024, so that's not something Mr. Wren could reasonably have anticipated. With respect to the OPM application itself, what we can test is the interpretation under Cleveland. The board read the application as a binary admission against interest. Cleveland holds that an apparent inconsistency Between a sworn disability application and an ability to work claim must be reconciled, not used as automatic estoppel.

[00:24:37] Speaker 03:
The question is weight and legal framework, not admissibility.

[00:24:41] Speaker 03:
And also with respect to the deciding official, and this is where some of the evidence comes in, Mr. Graham, who is the deciding official, made three concessions on the record that the government hasn't rebutted. He conceded that the FMLA forms computer restriction connects to flare-ups, which is Appendix 3209.

[00:24:59] Speaker 03:
He admitted he never determined whether the existing accommodations were effective, Appendix 3221 to 3222. He admitted he never reviewed Ms. Duran's performance appraisals, Appendix 3223. Those three concessions on their own should defeat the agency's charge as it was actually constructed at the time of the removal.

[00:25:18] Speaker 03:
In addition, Mr. Graham actually in the decision itself says that he says that essentially the agency's moving towards more computer use, which means that it wasn't entirely in a heavily computer use setting yet. And then that is also in the proposal as well.

[00:25:47] Speaker 03:
One of the important things here is that the form itself, the FMLA form, doesn't actually say in it anywhere that the doctor knew what accommodations were there or whether or not they were effective because this predated the effective accommodations, which there were effective accommodations that were in place prior to the removal and prior to essentially the agency being intentionally willfully obtuse with how they were approaching the situation.

[00:26:19] Speaker 03:
Thank you very much for this opportunity and I appreciate it. I appreciate your consideration. Thank you and thanks to both counsel. The case is submitted.