[00:00:08] Speaker 00:
Okay, thank you very much for this opportunity. I want to take the opportunity today to see if we can streamline and reduce the issue in this case to just one proposition. I know there's a convoluted sequence of events, but I don't think most of it needs to actually be addressed.

[00:00:28] Speaker 00:
We have one proposition, and the proposition is whether the ultimate issue in this case is whether Mr. Grutter was entitled to a waiver of an untimely request for reconsideration.

[00:00:45] Speaker 00:
That's the issue. I don't believe that's an issue that can be decided today because I think there's a procedural nuance that's a problem.

[00:00:54] Speaker 00:
So what happens is that no matter what occurred Between the time he was separated from service in 2014 up until October 12th of 2018, when the OPM, Office of Personnel Management, issued its first initial decision.

[00:01:15] Speaker 00:
And it says you have 30 days. It was inadequate. We don't believe that you timely filed your original application. That's not an issue here today.

[00:01:25] Speaker 00:
You have 30 days from October 12, 2018, to tell us why we're wrong.

[00:01:32] Speaker 00:
Well, the 30 days comes and goes.

[00:01:35] Speaker 00:
And the record shows that there was no filing.

[00:01:38] Speaker 00:
And really nothing happens until July 22, 2019, when OPM spontaneously issues a letter in which It appears to give Mr. Grutter a second chance. Regardless of what happened between October 12th and July 22nd, it gives Grutter a second chance, a second chance to ask for the waiver.

[00:02:07] Speaker 00:
And if we take a look at the letter, which is at page 47 of the appendix, In the last few lines, right above their address, on July 22nd, they say, if you wish to send any evidence to show that you would qualify for a waiver, or, it's in the alternative, the reconsideration time limits, that you did remake a request.

[00:02:45] Speaker 00:
Somehow you made that request within 30 days.

[00:02:47] Speaker 03:
I'm still waiting for what the issue is in this case.

[00:02:50] Speaker 00:
The issue... Okay, the issue is he responds to this letter on August 21st, 2022, within 30 days, as the administrative judge states in his opinion.

[00:03:07] Speaker 00:
And in the response, following the direction of this letter of July 22nd, he gives an explanation for The waiver, the justification for the waiver. Whatever that explanation was.

[00:03:23] Speaker 03:
Okay, do you want to give us an appendix type to his response?

[00:03:26] Speaker 00:
Excuse me?

[00:03:27] Speaker 03:
What's your appendix type?

[00:03:29] Speaker 00:
Well, the July 22nd letter is at appendix 47. Yes.

[00:03:34] Speaker 00:
And then we have the August 21st response at appendix 40 to 46. Okay, thank you.

[00:03:44] Speaker 00:
And on appendix 41...

[00:03:49] Speaker 00:
In the next to the last paragraph, he asks, please review the attached exhibit, which is an exhibit of a practitioner that's been giving him some therapy, showing that Mr. Grutter qualifies for a waiver of the reconsideration time limits.

[00:04:08] Speaker 00:
That's the request for the waiver. That is the second chance that he was given by OPM. On August 21st, he makes that request.

[00:04:19] Speaker 02:
Where's this letter again? Which appendix page?

[00:04:22] Speaker 00:
Page 41 of the appendix.

[00:04:24] Speaker 03:
So, your argument is... He makes the substantive request for the waiver on... I mean, I think their position is that this explanation requesting a waiver and the reasons for his

[00:04:45] Speaker 00:
Right. Understood. But we don't see that as the issue here to be decided. And the reason for that is when the OPM issues its determination on September 9th of 2019, which is on Appendix 38, there's a discussion and they discuss this submission And what they say is, well, we are dismissing your case because you didn't show that you had filed for reconsideration within the 30 days back in October of 2018.

[00:05:28] Speaker 00:
But they do not, and this is the crux of the case, they do not assess the merits of his claim for the waiver. They have discretion to grant a waiver. It's discretionary. They do not say anything about exercising its discretion to grant the waiver on the merits. They don't pay attention to it. They omit any discussion of it. Period of the story. So my point is, if OPM in the first instance does not exercise its discretion, then the Board, when this case was appealed, did not have any jurisdiction to make the claim that Your Honor just stated that the claim was insufficient because the jurisdiction attaches only to an abuse of discretion.

[00:06:21] Speaker 00:
If there's no discretion, there's no abuse of discretion, the board should not have made a determination.

[00:06:27] Speaker 03:
Did you make this argument below to the board?

[00:06:35] Speaker 00:
Well, yeah. Well, the argument that was made to the board, the argument that was made to the board is that Mr. Grutter had expressed an adequate justification for the waiver.

[00:06:47] Speaker 03:
That goes to weighing the merits. I'm really not clear on what you're presenting here as your sole argument, that the board didn't have jurisdiction because this letter of September 9th did not...

[00:07:12] Speaker 00:
the adequacy of Mr. Grutter's claim for a waiver on the merits. It says nothing about it. Well, it says, doesn't it say? It only says that you have no proof that you submitted the reconsideration request back in October. But looking at this July letter, page 47 of the appendix, he gave him an option. They gave him another option, a second chance. Show me why you're entitled to the waiver, but OPM... did not render an opinion on that.

[00:07:44] Speaker 00:
And all I'm saying is that if they don't render an opinion on that, the board didn't have jurisdiction to render an opinion on that, and it should be remanded back to OPM to render such an opinion. That's all we're asking for.

[00:07:57] Speaker 03:
Well, on top of page 39, titled Their Decision, It says, therefore, since you have not presented sufficient evidence to show that you are unable to file a request for reconsideration within the time limit provided, your request for reconsideration request is being dismissed as untimely filed.

[00:08:18] Speaker 00:
Understood.

[00:08:19] Speaker 03:
Decided it.

[00:08:20] Speaker 00:
No?

[00:08:20] Speaker 03:
Well, they say prior to that that they looked at the stuff you submitted, and then they say it's not sufficient evidence to show you are unable to file a request for reconsideration. So why isn't that deciding it?

[00:08:35] Speaker 00:
The way I believe it should be read is since the only discussion had to do with the untimeliness of not filing it within 30 days of October of 2018, then you were unable to show that you filed a request within a time limit.

[00:08:55] Speaker 00:
So it doesn't say anything about the substantive...

[00:08:59] Speaker 00:
merits of his request for a waiver with his report of the practitioner. Does it say anything about that at all?

[00:09:06] Speaker 03:
Yes, it does.

[00:09:07] Speaker 00:
Does it say anything about that at all?

[00:09:08] Speaker 03:
That's all I'm saying is that OPM had an... Sir, yes it does on page 38. We considered this evidence. They talk about the statement of the social worker and your letter of October, the fact that you had the letter of October 1st. And then they say no.

[00:09:30] Speaker 00:
It's not sufficient.

[00:09:31] Speaker 03:
They didn't disagree with the conclusion.

[00:09:34] Speaker 00:
No, I understand.

[00:09:35] Speaker 03:
They decided this issue.

[00:09:37] Speaker 00:
What they say is that there's no evidence to support that a request for a reconsideration was received by OPM within 30 days from the date of our initial letter. That's the October. That's what they say. That's why they dismissed the case.

[00:09:51] Speaker 03:
Don't they say you have not presented sufficient evidence to show you are unable to file a request for reconsideration within the time limit provided?

[00:10:01] Speaker 00:
They're referring, the plain text refers to the fact that there was no submission within 30 days of the initial decision in October of 2018. That's all they opined on. So he's sending in, he's got his second chance, and he's telling them, I'm entitled to a waiver because my mental health interfered with my ability to respond. But they don't opine on that at all.

[00:10:29] Speaker 00:
OPM does not opine on it at all. They don't exercise their discretion. So all I'm saying is the board doesn't have the authority to exercise any discretion, to opine on it, if the OPM doesn't opine on it, because they only have authority on an abuse of discretion standard. That's it.

[00:10:46] Speaker 00:
That is our argument.

[00:10:48] Speaker 00:
Thank you.

[00:10:54] Speaker 00:
Yes, okay, thank you.

[00:10:55] Speaker 03:
Yes.

[00:11:08] Speaker 01:
Good morning, and may it please the court. Substantial evidence supports the MSPB's determination that OPM reasonably decided both that, one, Mr. Grutter did not request reconsideration of that October 12th initial decision within 30 days from that date, which petitioner seems to concede on argument, and that Mr. Grutter did not demonstrate entitlement to a waiver of that 30-day deadline.

[00:11:37] Speaker 01:
Now, it seems that Mr. Grutter's argument is focused on the waiver of claiming that OPM failed to consider his waiver claim, citing to appendix page 38.

[00:11:50] Speaker 01:
OPM did, in fact, address waiver in that decision.

[00:11:53] Speaker 04:
What sentences are relying on it, A38 and 39, for that proposition?

[00:12:00] Speaker 01:
Those are where OPM – it's in the middle of the paragraph under the discussion – OPM states in a letter dated August 21, 2019, it indicates that Mr. Grutter submitted documents. As evidence, he submitted a letter dated October 1, 2018, requesting a waiver for the late filing of your application and a statement from a social worker dated September 10, 2018.

[00:12:31] Speaker 01:
Although we consider this evidence, we have concluded that both the attorney's letter and and the statement by the social worker were dated prior to the issuance of the dismissal letter that you received on October 25, 2018.

[00:12:44] Speaker 04:
So that sentence does seem to go to, just for a minute, that sentence seems to go to the idea that you didn't actually file a request for reconsideration because whatever you filed was before the decision was ever issued.

[00:12:57] Speaker 01:
That's correct.

[00:12:57] Speaker 04:
So that goes to whether... So what are you relying on for them further addressing going on from there and addressing waiver?

[00:13:05] Speaker 01:
That last sentence of the paragraph states, as of September 9th, 2019, there is still no evidence, sorry, the request for consideration and received by OPM within 30 calendar days from the date of our initial letter. So essentially stating that nothing was received within that 30 days. They also, OPM states that it looked at that letter from the social worker and which was discussing Mr. Grutter's medical disabilities.

[00:13:36] Speaker 01:
And it determined that that letter was not sufficient to demonstrate that he was prevented from responding within that 30 days.

[00:13:44] Speaker 03:
Is this whole thing about whether or not they could have considered the submissions prior to the October 12th letter or whatever that letter was? Is that what this whole thing comes down to?

[00:13:58] Speaker 01:
It does not.

[00:14:00] Speaker 03:
It really comes down to, one, the fact that there was no reconsideration request, and it comes down to whether... Well, no, but that goes to the reconsideration request, because if they had said, I mean, your position is we can't consider that to be a reconsideration request because it came in before and not after a reconsideration decision. And at least at one point, if not today, your friends seem to be arguing that the OPM should have considered that information.

[00:14:30] Speaker 03:
And, you know, as part of, you know, ships crossing in the night, and that that should have been considered. And it appears from this decision that they continue to maintain that anything that came in beforehand was not relevant to his reconsideration request. Am I correct on that?

[00:14:47] Speaker 01:
Yes, Your Honor, that's correct.

[00:14:49] Speaker 01:
That letter that Mr. Grutter mailed on July... mailed after the fact...

[00:14:58] Speaker 03:
Before the fact.

[00:14:59] Speaker 01:
I'm sorry, before the fact. The October 1st, 2018 letter that was mailed before an initial decision was even made.

[00:15:06] Speaker 03:
The relevant... Well, except, so is your position that the OPM did consider, in reaching its October 12th decision, it did consider the submissions of October 1st?

[00:15:21] Speaker 01:
No, because it, I'm sorry, the October...

[00:15:30] Speaker 01:
The October 1st submission by its terms was in response to the June 26, 2018 determination by OPM, which is at Appendix 53. This is where OPM rescinded its initial decision that the application was incomplete, and it stated instead that we have determined that Mr. Gruder's initial application was, in fact, untimely.

[00:15:55] Speaker 03:
Okay, what I'm missing in this, just to cut to the chase, is On Appendix 50, which is the OPM's decision that we're fighting about here as to whether he submitted a request, it says at the bottom of the third full paragraph, we have, as of the date of this letter, which is October 12th, we have not received information for your legal representative or yourself showing that you were mentally incompetent to file a timely application.

[00:16:30] Speaker 03:
had they, in writing this decision October 12th, had they considered the submission of October 1st?

[00:16:39] Speaker 03:
They don't seem to address it or indicate that.

[00:16:46] Speaker 01:
That's right.

[00:16:49] Speaker 03:
The... Isn't that a little... I mean, if I'm right about that, okay, so that when they issued the October 12th letter... Either they hadn't yet received the October 1st submission or they hadn't opened the novel.

[00:17:06] Speaker 03:
But either way, they didn't take it into consideration when they decided this case. So this sounds like a catch-22. We can't consider the October 1st for reconsideration because it's too late. And we can't consider it like we have to reconsider our decision because it was too early. I mean, I So nobody ever considered the October 1st submission?

[00:17:33] Speaker 01:
They did consider the October 1st submission.

[00:17:35] Speaker 03:
OPM, that submission... Before they decided and issued this October 12th letter?

[00:17:43] Speaker 01:
Yes. That October 1st letter really only attached the letter from the director of the Vet Center, the social worker, and that was something that OPM did in fact look at in making the determination of waiver, and it determined that that was not sufficient. How do you know that?

[00:18:06] Speaker 01:
In his...

[00:18:12] Speaker 01:
In the October 12th initial decision, OPM states that he had not shown that he was incompetent to file. What page are you looking at? This is Appendix Page 50. So in...

[00:18:45] Speaker 01:
The October 1st letter, it cannot be a response to October 12th.

[00:18:52] Speaker 03:
Okay, I've taken that off the table. My only question is whether or not this October 12th, the board, the OPM in making its decision dated October 12th, had reviewed the October 1st submission and was opining that that was insufficient. We're talking about the first week.

[00:19:12] Speaker 01:
Right, so on October 12th, the only evidence of incompetency was that letter from the director of the Vet Center, which is exactly what that October 1st letter included. That was a statement by Ms. Rochelle Fortin.

[00:19:30] Speaker 01:
And again, that letter stated as per... It was responding to OPM's letter dated June 26, 2018. So...

[00:19:38] Speaker 04:
We understand that the court sees this as possible unfairness to Mr. Grutter, but he has had multiple opportunities to file responses to... But the specific question was, do we know from this record whether OPM was considering the October 1st submission when it issued its October 12th decision?

[00:20:03] Speaker 04:
So that specific question, do you have an answer to it?

[00:20:06] Speaker 01:
In that...

[00:20:08] Speaker 01:
October 12th letter, it does not mention the October 1st letter.

[00:20:13] Speaker 01:
That's correct. However, in the October 12th letter, OPM gave Mr. Grutter the chance to request reconsideration of this decision within 30 days. So to the extent that Mr. Grutter believed this October 12th letter was mistaken because it did not consider his October 1st letter, he had the chance to request reconsideration within 30 days. He received that letter on October 25th.

[00:20:40] Speaker 03:
Well, what about a rational person thinking, I said this October 1st, this October 12th letter doesn't really deal with my submission of October 1st. They're going to still review it for him to say, okay, they should have considered this before October 12th. But now that they got it, they may have gotten it afterwards. And they will consider this the request for reconsideration. Why isn't that a reasonable assessment for them to make?

[00:21:15] Speaker 03:
I mean, how can the government take the position that we can't consider the October 1st submission going forward because it was submitted before October 12th, but we didn't have to consider it before October 12th?

[00:21:32] Speaker 01:
To the first statement in your point, that letter was submitted before any initial decision had even been made, and understanding that the OPM could have considered it prior to that time, it did consider the substance of that October 1st letter, which was... It did when?

[00:21:59] Speaker 03:
On October 12th?

[00:22:01] Speaker 01:
not on October 12th, but it did consider it July 22nd, 2019, when OPM, and then on September 9th, 2019, when OPM issued its final decision, which is at Appendix Page 38.

[00:22:19] Speaker 01:
So in that final decision, OPM did, in fact, look at the letter from Rochelle Fortin.

[00:22:27] Speaker 03:
It looked at... Yeah, but they didn't consider it on the merits. What they say is, this is the Appendix 38, is although we consider this evidence, we have concluded that both the attorney's letter and the statement by the social worker were dated prior to the issuance of the dismissal letter that you received. So it seems like they're saying...

[00:22:49] Speaker 03:
It was prior, so it didn't – they're here reviewing the request for reconsideration, and they're saying that, no, it's not going to help you out here because it was submitted prior. Am I misunderstanding what they said?

[00:23:00] Speaker 01:
No, Your Honor. That is what OPM is stating.

[00:23:03] Speaker 03:
So that's what I was talking about, this catch-22. They didn't – you say they can't consider it now because it was too early, but somehow it must have been too late because it was too late to be considered in the October 12th decision.

[00:23:19] Speaker 01:
We're simply stating that it was not – that October 1st letter does not take away the fact that Mr. Gruder – failed to timely request reconsideration to all of these decisions. So just looking at the record, on October 12th, there was that initial decision. The October 1st letter cannot be a reconsideration request of that October 12th decision because it had not been...

[00:23:56] Speaker 03:
hey guys, doesn't it seem like when you issued this October 12th letter, you had looked at my October 1st submission?

[00:24:04] Speaker 01:
Yes.

[00:24:04] Speaker 03:
Please look at it again.

[00:24:05] Speaker 01:
Yes. That is exactly what he could have and should have done, and there is no evidence in the record that Mr. Gruder did that. He did not even respond.

[00:24:13] Speaker 03:
Could not a reasonable person have assumed that by the time the dust fell and the October 12th thing issued, OPM would have received his letter of October 1st, looked at it, and having to do something about it. The October 12th letter says, we've considered all the evidence. Well, obviously, that wasn't correct, right? So you're saying that's right, but he still needed to file a request for reconsideration to fix that.

[00:24:44] Speaker 01:
Yes, because...

[00:24:46] Speaker 01:
A letter sent prior to an initial decision, a decision that has not even been made yet, cannot be considered a response or a request for reconsideration to a decision that has not yet been made.

[00:24:59] Speaker 03:
The problem I'm having is who's got responsibility here? If the government issues something on October 12th and it purports to have considered all the evidence... And then they get a letter two days later and they're saying, whoops, we were wrong. Were they wrong? They didn't consider all the evidence because they didn't consider the October 1st letter. So don't they have any obligation to clean that up? The obligation is otherwise entirely on Mr. Grutter to figure out what happened.

[00:25:30] Speaker 03:
Did my letter get lost? Did they actually read it beforehand? Should I submit a reconsideration? Why don't the government just... reopen the October 12th letter once they got the October 1st letter.

[00:25:43] Speaker 01:
Because per the regulatory scheme, the burden doesn't fact-shift to Mr. Grutter.

[00:25:48] Speaker 03:
If he believes that OPM made an incorrect decision, which here they did not, he could have responded, and he did not until... It's not sort of an incorrect decision, because October 12th says we've looked at all the evidence, and there was a letter dated October 1st sitting on someone's desk... that had evidence rather than evidence that should have been considered before the decision, right? Even if it's rejected, somebody should have read it, right?

[00:26:14] Speaker 01:
Yes, somebody likely did read it. Somebody did, in fact, read it because they mentioned the letter.

[00:26:18] Speaker 03:
And to the extent that... Where did they mention the letter? You're talking about October 12th, that they had read the letter before October 12th.

[00:26:24] Speaker 01:
In the September 9th, 2019 final decision, which was reconsidering, which was... Yeah, but that's...

[00:26:31] Speaker 03:
That's not what I'm talking about. I'm talking about whether or not by the time OPM issued its decision on October 12th, it had considered all of the evidence of record, which they say they did. But now it appears that they really hadn't considered the October 1st letter.

[00:26:46] Speaker 01:
Even to the extent the court disagrees that OPM considered all of the evidence on October 12th, any kind of... Is that what you're saying, though? No.

[00:26:54] Speaker 03:
Maybe I misunderstood what you said five or ten minutes ago. I thought you were acknowledging... that it does not appear that by October 12th, they didn't respond to any of the information he had submitted on October 12th.

[00:27:11] Speaker 01:
The October 12th question was whether he had shown that he was incompetent to file within the one-year time period. He could request reconsideration within 30 days. He did not respond until OPM reached out again and gave him a second chance to respond.

[00:27:28] Speaker 03:
My only question is when they wrote this, that he hasn't submitted sufficient information, whether that included... the October 1st submission by him of the social worker letter and this. Do we know that from the record?

[00:27:45] Speaker 01:
The appendix page 50, October 12th decision does not mention the October 1st letter. That is correct. However, to the extent Your Honor believes that OPM made a mistake there, any remand would simply require, would simply go back to whether Mr. Gruder, in fact, responded to that October 12th decision and whether he was prevented.

[00:28:16] Speaker 01:
He has demonstrated that he was prevented by circumstances beyond his control for making the request within that time limit, the 30 days, which here there is no record. Or seeking a waiver of that time period. Yes, correct, seeking waiver of that time period. And here there is no evidence of either. So even if there were a remand, that would not solve anything for Mr. Grutter. The result would be the same.

[00:28:37] Speaker 02:
Could I ask one question? The last paragraph on Appendix 50 says, because you have failed to show you were incompetent to file, etc. We've been discussing that, right?

[00:28:49] Speaker 01:
Yes.

[00:28:50] Speaker 02:
Okay.

[00:28:53] Speaker 02:
Is it possible that that was a reference to the October 1 submission but without mentioning it? Yes.

[00:29:02] Speaker 02:
That's one consideration. Or are you saying that this October 12 letter did not in any way consider the October 1 submission?

[00:29:13] Speaker 01:
Your first point, Your Honor, that statement that he has shown that he was incompetent to file— we believe is a reference to that October 1st letter because the only information submitted as to his competency was the letter from the director of the VA center. So that is all we have on the record.

[00:29:34] Speaker 02:
So you're saying that even though the October 12th letter does not signal out or point to the October 1st submission that included... Ms. Wharton's assessment, you're saying that it's necessarily behind what is stated in the paragraph that begins, because you have failed.

[00:29:57] Speaker 01:
That's correct, Your Honor.

[00:29:58] Speaker 04:
What about the sentence above that, where it says, as of the date of this letter, we have not received, it says end information, but maybe that's supposed to be any information from your legal representative or yourself showing you are mentally incompetent to file a timely application. That's kind of ambiguous. I'm not sure whether I should read that as suggesting that they considered the October 1st letter or they considered the material in the October 1st letter to be insufficient.

[00:30:26] Speaker 01:
I believe that indicates that OPM considered the material to be insufficient because all that was on the record by that point was, again, the letter, his VA rating, and the settlement.

[00:30:38] Speaker 04:
The other interpretation is plausible, too, right? We received no information? Because it says, as of the date of this letter, we have not received information showing you were mentally incompetent. That could be we haven't received anything.

[00:30:55] Speaker 04:
Couldn't it?

[00:30:57] Speaker 01:
It could, Your Honor. However, on April 7, 2016, at Appendix Page 76, which was far before Mr. Gruder submitted the statement, the letter from Ms. Fortin, his SF-50, which was his separation from federal service, and a summary of his VA benefits. None of these... were sufficient to demonstrate that he was mentally incompetent to file his application within the timeline.

[00:31:33] Speaker 03:
I don't understand. Are we looking at Appendix 76?

[00:31:36] Speaker 01:
Yes.

[00:31:37] Speaker 03:
This is a letter from his union. And this deals with... I guess this was even before... I think this may have even been before OPM decided that it was untimely.

[00:31:56] Speaker 01:
Yes.

[00:31:56] Speaker 03:
This had to do with the merits of his disability application.

[00:31:59] Speaker 01:
That's correct.

[00:32:00] Speaker 03:
What is that responding to?

[00:32:02] Speaker 01:
Yes. So this letter from Mr. Grutter's counsel is responding to, that's correct, OPM's statement that Mr. Grutter had not submitted sufficient documentation.

[00:32:14] Speaker 03:
So what relevance does that have to what we're discussing here?

[00:32:17] Speaker 01:
that the only information Mr. Grutter has relied upon to demonstrate his incompetency is the exact same information that was submitted in this April 7, 2016 letter.

[00:32:32] Speaker 04:
So there is information?

[00:32:33] Speaker 01:
Yes, so there is information.

[00:32:35] Speaker 04:
Beyond the information that was submitted on October 1st? That's correct. And then there's the Brunner presumption, is that right?

[00:32:42] Speaker 01:
The Brunner presumption, I think that applies to the actual application, which here we're not even looking at. I don't understand.

[00:32:51] Speaker 04:
So in other words, there is information that was provided and consistent with what you had said earlier. That's correct. About the September 9th letter, there is information that was in the record.

[00:33:02] Speaker 01:
Yes, that is correct, Your Honor. And going to the statement you pointed out in the previous letter, we would argue that this information on the record informs that OPM did in fact review that information regarding his competency. Okay. looking at.

[00:33:19] Speaker 03:
What does that have to do with whether they reviewed the letter from the nurse from VA?

[00:33:25] Speaker 01:
That social worker letter was in the April 7th materials. How do we know that? On appendix page 76, which is the letter dated April 7th, Mr. Grutter states, furthermore, Finally, attached here too as Exhibit C is a duly executed physician's statement.

[00:34:00] Speaker 03:
All of this submission was with respect to the merits of his disability application. This wasn't submitted in connection with the reason that OPM bumped him out, which was it was untimely.

[00:34:14] Speaker 03:
Right?

[00:34:14] Speaker 01:
Yes, and that's really the crux of all of the issues in this case that Mr. Grutter never submitted the correct or the requested documentation within the time limit set by OPM. OPM gave him numerous opportunities to respond and Mr. Grutter simply did not. Thank you. Thank you.

[00:34:40] Speaker 04:
to look at to see the letter from the person who works at the vet, you know, to see that the information that was submitted on October 1st was actually submitted on April 7th. If you could just give me a site, I'd appreciate it.

[00:34:54] Speaker 01:
Yes.

[00:34:56] Speaker 01:
That was...

[00:35:16] Speaker 01:
I'm so sorry. I do not have that offhand, but I'm happy to take a look and provide you with one. Appendix 76 is the April 7th letter, and then the statement from... You're saying it's supposed to be some sort of exhibit attached to this?

[00:35:33] Speaker 01:
Yes.

[00:35:34] Speaker 04:
Is that what your implication was?

[00:35:36] Speaker 01:
Yes.

[00:35:36] Speaker 04:
I don't see it. Just so you know. Okay.

[00:35:39] Speaker 03:
Okay.

[00:35:41] Speaker 03:
Well, and the other weird thing is, if you're talking about the letter from the social worker being included in the 2016 submission, the letter in Appendix 49 looks like it was dated September 10, 2018. So that would have been almost two years after that, right?

[00:36:04] Speaker 01:
That's correct. September 10, 2018.

[00:36:08] Speaker 03:
not have been attached to the 2016 submission, right?

[00:36:14] Speaker 01:
That's true.

[00:36:19] Speaker 01:
Yes, that is correct.

[00:36:21] Speaker 03:
So it wasn't.

[00:36:23] Speaker 01:
So it seems it was not.

[00:36:24] Speaker 03:
That's right. It seems like this 2018 letter that we've been talking about in the social order was part of the October 1st submission, but it had not been presented to the VA before that. I'm sorry, to the OPM.

[00:36:36] Speaker 01:
To OPM. It looks like it may not have been.

[00:36:44] Speaker 01:
But again, OPM considered the rest of the information that was presented to it.

[00:36:52] Speaker 01:
And then Mr. Grutter simply did not respond in time, even though he received one.

[00:36:57] Speaker 02:
I just want to make sure I understand. Is it your position that when it rose the letter October 12, 2018, that OPM did or did not have the October 1 submission with the VA Vet Center letter attached.

[00:37:25] Speaker 01:
It did have that submission. That's correct.

[00:37:28] Speaker 02:
But you would acknowledge there's nothing... We don't have any date stamp or anything in the record confirming that. It's just your position based on what the October 12 letter says. Is that correct?

[00:37:41] Speaker 01:
That's correct.

[00:37:43] Speaker 01:
Thank you.

[00:37:51] Speaker 03:
Thank you. You've got four minutes remaining.

[00:37:53] Speaker 00:
Okay. I can only say... I will only say that Mr. Grutter gave OPM everything he could offer on the waiver issue on October 1st, and he did it again on August 21st.

[00:38:08] Speaker 00:
OPM wholly and utterly ignored his request for the waiver, did not make a decision on the merits, and I believe OPM has a responsibility to do that, and I think this Court should remand it back.

[00:38:19] Speaker 02:
Thank you. I have just one question. Given the very fulsome colloquy you've heard today from the panel to government counsel, why are you saying there's no jurisdiction? We clearly died into it. I would think you would have gotten up here and said, see, see, they didn't consider it.

[00:38:42] Speaker 00:
Well, that's what I'm arguing.

[00:38:44] Speaker 02:
But why carry on this jurisdiction?

[00:38:45] Speaker 00:
Here's the concern. Here's the concern, because the administrative judge stepped in and made a decision and said that Grutter's request for a waiver was not adequate. And my point is he had no authority to do that without a previous initial decision from OPM to exercise his discretion one way or the other. And he steps in on a, quote, abusive discretion, end quote, standard, and he had no authority to do that.

[00:39:18] Speaker 00:
That's my point.

[00:39:21] Speaker 03:
right to the case and decide it I understand well part of the problem is some of the discussion in fairness to your counsel on the other side a lot of what we've discussed here has not been pressed in any of your arguments before the board or previously so thank you thank you