[00:00:00] Speaker 03:
Our next case for argument is 24-2050, Swer-Garden versus Army.

[00:00:07] Speaker 03:
I don't think I said that name right.

[00:00:08] Speaker 03:
Swer-Rengen versus Army.

[00:00:11] Speaker 03:
I probably still didn't.

[00:00:12] Speaker 03:
Counsel, tell me how to say the name.

[00:00:15] Speaker 00:
Daniel Gamano.

[00:00:17] Speaker 03:
Oh, no, not your name.

[00:00:18] Speaker 03:
I meant the name of your client.

[00:00:19] Speaker 00:
Oh, I'm sorry.

[00:00:20] Speaker 00:
Marcus L. Swearingen.

[00:00:22] Speaker 03:
Swearingen.

[00:00:23] Speaker 03:
Thank you.

[00:00:23] Speaker 00:
Yes, Your Honor.

[00:00:24] Speaker 00:
Daniel Gamano, my privilege to represent Mr. Swearingen in this case today.

[00:00:31] Speaker 00:
We are here on this appeal from an opinion from the Merrick Sister Protection Board.

[00:00:36] Speaker 00:
For Mr. Swearingen, in legal parlance, it was a good news, bad news opinion from the MSPB.

[00:00:45] Speaker 00:
The good news was,

[00:00:46] Speaker 00:
They did reinstate him to employment.

[00:00:51] Speaker 00:
They did strike one of the two allegations against him for making inappropriate remarks.

[00:00:59] Speaker 00:
That part was good.

[00:01:01] Speaker 00:
What the MSPB failed to do, they did not strike the second allegation.

[00:01:08] Speaker 00:
That second allegation is still standing, that he created a disturbance in the workplace.

[00:01:15] Speaker 00:
And because of that, when they reinstated him, they did not reinstate him to his original position, but to a lower position.

[00:01:24] Speaker 00:
That was the order from the MSPB.

[00:01:28] Speaker 00:
The issue and the problem with that is the MSPB, when you read their opinion, you can look back forwards and upside down.

[00:01:38] Speaker 00:
They make no reference.

[00:01:40] Speaker 00:
to this court's precedent that this court set most recently in 2023, Williams v. Federal Bureau of Prisons.

[00:01:50] Speaker 00:
If one of two charges is upheld, then there needs to be, there must be, an analysis under the 12 Douglas Factors to see if the sanction fits the remaining charge.

[00:02:05] Speaker 04:
Didn't the board in substance review those factors even if it didn't cite the case by name?

[00:02:21] Speaker 00:
I think you're asking if the MSPB followed the factors even if they didn't say so.

[00:02:27] Speaker 03:
Well, I mean, I'll tell you, I think they followed the factors.

[00:02:30] Speaker 03:
I think they said so.

[00:02:31] Speaker 03:
They just didn't say the word Douglas factors.

[00:02:33] Speaker 03:
Because, I mean, if you look at the actual analysis itself, it tracks with the factors one is meant to consider under the Douglas inquiry.

[00:02:43] Speaker 00:
Well, in the first place, the opinion never says we're considering the Douglas Factors.

[00:02:49] Speaker 00:
And even if you try to reverse engineer in the Douglas Factors like counsel did in her brief, you still have a number of the factors that were never weighed, were never commented on in the record as an example.

[00:03:09] Speaker 00:
What is the agency put on?

[00:03:11] Speaker 00:
No evidence.

[00:03:12] Speaker 00:
that the penalty of removal was consistent with their past practices.

[00:03:17] Speaker 00:
They never put on any evidence.

[00:03:19] Speaker 00:
It was consistent with the table of penalties at the agency.

[00:03:23] Speaker 00:
They never put on any evidence about the clarity of the notice to Mr. Swearingen about his conduct.

[00:03:29] Speaker 01:
Can I ask you to turn to the substantial evidence question?

[00:03:33] Speaker 01:
You argue that there's no substantial evidence to support the board's conclusions that the second charge was established.

[00:03:42] Speaker 01:
Right?

[00:03:44] Speaker 01:
I'm sorry, I couldn't hear all of it.

[00:03:47] Speaker 01:
You argue that there's no substantial evidence to support the board's conclusions that the charge should be sustained, right?

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

[00:03:56] Speaker 01:
Right?

[00:03:56] Speaker 01:
Can we talk about that?

[00:03:58] Speaker 01:
Because I'm not seeing here some of the things that the board purports to find in the evidence.

[00:04:06] Speaker 01:
I don't find, for example,

[00:04:09] Speaker 01:
any testimony that there was a loud altercation.

[00:04:15] Speaker 01:
I find no testimony that the noise came from your client as opposed to the other individual involved.

[00:04:29] Speaker 01:
And I don't find any testimony that there was disruption caused by the noise as opposed to the overall toxic environment.

[00:04:42] Speaker 00:
Well, and I think you have put your finger on it, Your Honor.

[00:04:47] Speaker 00:
There is no substantial evidence of any of those things that you mentioned.

[00:04:53] Speaker 00:
And the

[00:04:57] Speaker 00:
standard on appeal is under Title 5 USC 7703, MSPB decision must be affirmed unless it is unsupported by substantial evidence.

[00:05:11] Speaker 00:
And that is exactly and precisely

[00:05:15] Speaker 00:
our first ground of appeal, that when you look at the record, the evidence is not there.

[00:05:21] Speaker 04:
Can I just ask you?

[00:05:21] Speaker 04:
So when I read your blue brief, I think your gray brief too, but the blue one is the one that matters for what you're arguing.

[00:05:30] Speaker 04:
I took it that your argument about the substantial evidence was simply

[00:05:38] Speaker 04:
No work of the agency, of the particular office, was disrupted so that there wasn't a disturbance.

[00:05:48] Speaker 04:
Not anything else.

[00:05:50] Speaker 04:
Not even if people got up from their desks to see what was going on, it wasn't Mr. Swearingen's voice that they were

[00:06:03] Speaker 04:
attracted to or anything else.

[00:06:07] Speaker 04:
And I think the board said on the disruption point, it was enough that people were diverted from their work for a period to see what was going on.

[00:06:23] Speaker 04:
And that does seem supported by substantial evidence.

[00:06:27] Speaker 04:
But I'm not sure you made any other argument on that point.

[00:06:30] Speaker 04:
Tell me where you did.

[00:06:33] Speaker 00:
That was the central argument that we made in regard to that there was no substantial evidence of a disruption.

[00:06:43] Speaker 00:
There is testimony on cross-examination from both the presiding, the proposing official, Kyle Anderson.

[00:06:50] Speaker 00:
There's testimony at the trial below from the deciding official, Colonel Martin.

[00:06:57] Speaker 00:
Nobody could point to any

[00:07:02] Speaker 00:
failure to meet a deadline, lost customer, complaint because something was not done on a timely manner.

[00:07:13] Speaker 00:
There was no indicia, no evidence of any kind of disruption in the workplace.

[00:07:20] Speaker 00:
And the agency had the burden to show that and to produce substantial evidence of that.

[00:07:27] Speaker 00:
It seems if there is substantial

[00:07:29] Speaker 00:
if there is a disruption in the workplace.

[00:07:32] Speaker 00:
And I will grant you, some of the testimony was people came to see what the matter, what the language was and what was going on.

[00:07:41] Speaker 00:
But again, besides idle curiosity, there was no evidence of a substantial disruption in the workplace.

[00:07:50] Speaker 00:
And that's the allegation against him.

[00:07:53] Speaker 00:
And the lack of substantial evidence of that disruption undercuts the MSPB board's finding that there was substantial evidence to show any workplace disruption.

[00:08:06] Speaker 00:
That's the only allegation that's left standing.

[00:08:09] Speaker 00:
And you are very correct, Mr. Justice, in this is a workplace.

[00:08:16] Speaker 00:
There are trucks bringing in big radars to be worked on and rumbling around.

[00:08:23] Speaker 00:
There's forklifts back and forth to unload and load and people running back and forth and clanking of tools and power tools.

[00:08:33] Speaker 00:
Everything in this workplace is noisy.

[00:08:36] Speaker 00:
Everything in this workplace, it is not

[00:08:38] Speaker 00:
the reading room at the Library of Congress.

[00:08:42] Speaker 00:
It's not a monastery.

[00:08:44] Speaker 00:
It is a noisy workplace with activity and work going on by all the workers.

[00:08:50] Speaker 00:
And in all of that cacophony, there is no evidence that anything was disrupted enough

[00:08:59] Speaker 00:
that they missed a deadline or they didn't get something finished or they made a mistake because they were distracted, none of that is in the record.

[00:09:10] Speaker 00:
And that's why we raise that in this appeal, that the only standing allegation against him left is that there was some kind of workplace disruption.

[00:09:22] Speaker 00:
And there is no substantial evidence of that.

[00:09:25] Speaker 00:
And I would agree with you, if you read the record, there may be, this is not a case where you're looking for a preponderance of evidence if the scales tip just the slightest.

[00:09:40] Speaker 00:
The requirement is that the MSPB decision must be supported by substantial evidence.

[00:09:47] Speaker 00:
That's a higher standard.

[00:09:49] Speaker 00:
It's not a criminal standard, but it's higher than just a preponderance.

[00:09:53] Speaker 00:
And if there was some idle standing around or asking what happened or something, may have happened.

[00:09:59] Speaker 00:
But that's different from a disruption that is sufficient enough to remove a person from his career

[00:10:09] Speaker 00:
or to sanction him when you turn him back to work at some lower level, there must be in the record substantial evidence of that workplace disruption.

[00:10:23] Speaker 00:
And here there was not.

[00:10:25] Speaker 00:
And to me, that's one of the major errors that occurred at the MSPB.

[00:10:32] Speaker 00:
And the reason it occurred, in my opinion, they did not follow this court's direction

[00:10:38] Speaker 00:
from Williams versus Bureau of Prisons that we quoted in our brief and the other cases strictly from this court to the MSPB that have reviewed it that said, if you're going to strike one of the grounds, then the remaining grounds need to be reviewed under the 12 Douglas Factors.

[00:10:56] Speaker 00:
And that is not in the MSPB opinion.

[00:11:01] Speaker 00:
And what is in the MSPB opinion, if you get down toward the end, footnote 10,

[00:11:09] Speaker 00:
will describe for the court, very much better than I can, the obscene, abhorrent racial language from his supervisor, Robert Kraft, about the employees, African-American employees, are from the ghetto.

[00:11:32] Speaker 00:
They don't want much.

[00:11:34] Speaker 00:
horrible, horrible language that sounds like somebody in the plantation veranda looking over the slaves.

[00:11:42] Speaker 00:
That's the language of 1850.

[00:11:43] Speaker 00:
That's the language of his supervisor.

[00:11:48] Speaker 04:
You don't have a race discrimination claim here.

[00:11:51] Speaker 04:
You gave it up when you decided to come to this court.

[00:11:57] Speaker 04:
You do not have a race discrimination claim because you expressly gave it up in order to come to this court rather than to go to district court for a Title VII action.

[00:12:09] Speaker 00:
Right.

[00:12:10] Speaker 00:
And I don't raise it for that purpose, but just to show the pressures and the stresses on Mr. Swearingen when he's working in that environment, when that's the language of his supervisor and the language of his boss.

[00:12:25] Speaker 00:
And so that's one of the factors that I don't think was properly weighed by the MSPB below.

[00:12:32] Speaker 00:
And it is our request.

[00:12:35] Speaker 00:
that the MSPB opinion be reversed in part and he be reinstated to his regular rate of pay without a demotion.

[00:12:46] Speaker 00:
That is our request.

[00:12:47] Speaker 00:
Thank you.

[00:12:53] Speaker 03:
Is it Aradi?

[00:12:54] Speaker 03:
Yes.

[00:12:58] Speaker 02:
May it please the court.

[00:13:01] Speaker 02:
The court should affirm the board's decision

[00:13:05] Speaker 02:
sustaining the charge of workplace disruption and mitigating the penalty from a removal to a demotion.

[00:13:11] Speaker 01:
So the board here is not aligned.

[00:13:14] Speaker 01:
on the Boyd testimony, right?

[00:13:17] Speaker 01:
Because Boyd says there was no disruption, but they're not relying on it.

[00:13:21] Speaker 01:
That's correct.

[00:13:22] Speaker 01:
OK?

[00:13:22] Speaker 01:
So the question is whether the other testimony supports the notion that Mr. Swearingen caused a disruption.

[00:13:31] Speaker 01:
I don't see any testimony that he made a noise that caused a disruption in the workplace.

[00:13:39] Speaker 01:
If you can show me where the testimony is, I'd be happy to look at it.

[00:13:44] Speaker 02:
There's two places, basically.

[00:13:48] Speaker 02:
There's two written statements.

[00:13:50] Speaker 02:
Those are on appendix 295 and 297 from Tyrone Farmer and Acosta Jenkins, respectively.

[00:13:58] Speaker 01:
295?

[00:14:01] Speaker 02:
Uh-huh, and 297.

[00:14:05] Speaker 02:
Both of these basically say,

[00:14:09] Speaker 02:
that at the time of the incident involving Mr. Swearingen and Mr. Boyd.

[00:14:13] Speaker 02:
Hold on a second.

[00:14:15] Speaker 01:
Oh, sorry.

[00:14:16] Speaker 03:
295.

[00:14:23] Speaker 03:
I mean, this certainly doesn't do it.

[00:14:26] Speaker 03:
295 is I heard some noise coming from the bay, but I mean, this statement doesn't even attribute the noise to Mr. Swearingen as opposed to to Mr. Boyd.

[00:14:40] Speaker 03:
And it just said, I heard some noise as I was going out the back.

[00:14:44] Speaker 03:
That does not create a disruption in the workplace, noise.

[00:14:47] Speaker 03:
Noise could just be talking.

[00:14:48] Speaker 03:
I heard them talking.

[00:14:50] Speaker 03:
Noise?

[00:14:51] Speaker 03:
I heard noise.

[00:14:51] Speaker 03:
I mean, there's noise in the courtroom right now.

[00:14:54] Speaker 03:
Nobody's causing a disruption, but I hear noise.

[00:14:57] Speaker 03:
I don't think that does it.

[00:14:58] Speaker 03:
So what's the other one?

[00:14:59] Speaker 03:
That's 295.

[00:14:59] Speaker 03:
297.

[00:15:00] Speaker 03:
It's the same thing, right?

[00:15:09] Speaker 02:
Yes, very similar.

[00:15:11] Speaker 02:
And then there's separately testimony from Acosta Jenkins, who's one of the people who provided a written statement.

[00:15:20] Speaker 02:
And that starts on Appendix 3723 and goes on to 3724.

[00:15:30] Speaker 02:
It starts at the bottom of 3723.

[00:15:33] Speaker 02:
The question is at line 23.

[00:15:41] Speaker 01:
37 what?

[00:15:41] Speaker 01:
23.

[00:15:43] Speaker 02:
Yeah.

[00:15:46] Speaker 01:
And which line?

[00:15:49] Speaker 02:
23.

[00:15:49] Speaker 01:
Yeah, but that's not testimony that something that Mr. Swearingen did, yelling or something like that, caused disruption.

[00:16:06] Speaker 01:
There isn't any such testimony.

[00:16:08] Speaker 01:
You put aside the Boyd testimony

[00:16:10] Speaker 01:
which you agree the board didn't rely on.

[00:16:12] Speaker 01:
There's no testimony that Mr. Swearingen caused a disruption.

[00:16:23] Speaker 02:
For this one, maybe it's better to start up further on page 3723 for a little more context.

[00:16:33] Speaker 02:
It's starting at line five.

[00:16:36] Speaker 02:
The question is to Mr.. Jenkins about what happened on March 12th 2020 which is the date of the incident in question There's a question about whether missed he heard mr.. Swearingen call mr.. Boyd stupid he did not Does the they talk about that and then

[00:17:00] Speaker 02:
in the context of talking about what Mr. Swearingen did or did not say, that's when there's the question about whatever it was that was in the radar shop on that date.

[00:17:13] Speaker 02:
Did that disturb your work on that date?

[00:17:16] Speaker 02:
And then he goes on to talk about unrest and how

[00:17:21] Speaker 02:
it hindered further operations going forward.

[00:17:25] Speaker 01:
At 3724, he says, how did that disturb you?

[00:17:31] Speaker 01:
He said, the shop had been working in a toxic environment for so long a time.

[00:17:39] Speaker 01:
I don't see that testimony as Mr. Swearingen made a lot of noise that disrupted people.

[00:17:45] Speaker 01:
I just don't see there is any such testimony.

[00:17:52] Speaker 02:
Right?

[00:17:52] Speaker 02:
OK.

[00:17:54] Speaker 02:
I have shown you all of the record that I have on this issue.

[00:17:58] Speaker 04:
So can I ask you the question that I asked your friend on the other side?

[00:18:03] Speaker 04:
I took it from his blue brief that he was making the argument that there was no disruption.

[00:18:09] Speaker 04:
Whatever went on, it didn't disrupt anything.

[00:18:12] Speaker 04:
I don't remember.

[00:18:14] Speaker 04:
I don't think there is in the blue brief an argument that if there was disruption,

[00:18:20] Speaker 04:
It wasn't me who caused it.

[00:18:25] Speaker 04:
I just don't see that argument.

[00:18:26] Speaker 04:
Did he make that argument either to us or to the board?

[00:18:30] Speaker 04:
The only thing that I think see is the argument that whatever was going on in the minutes, hour when this incident occurred, it didn't disrupt the work, which seems to me a different point.

[00:18:50] Speaker 04:
Did he make that point to the board?

[00:18:54] Speaker 02:
His argument is that there was no workplace disruption, not that there was a disruption and he's not responsible.

[00:19:06] Speaker 04:
Assume that that's right.

[00:19:10] Speaker 04:
What do we do?

[00:19:12] Speaker 04:
And assume also that, in fact, all the testimony cited by the board, and I think by you, doesn't actually say

[00:19:21] Speaker 04:
that he was responsible for such disruption as occurred.

[00:19:29] Speaker 04:
What do we do with those two things?

[00:19:31] Speaker 04:
It looks like there's no evidence to support an element of the charge, but that he didn't make that point.

[00:19:45] Speaker 02:
Think you still have to go to whether there's substantial evidence that supports the charge of workplace disruption Okay, okay further

[00:20:01] Speaker 02:
I'd just like to briefly visit the argument about the Douglas Factors.

[00:20:11] Speaker 02:
The board properly considered the Douglas Factors in its decision, though it did not use the words Douglas Factors.

[00:20:21] Speaker 02:
You can tell from the decision that the board was considering the Douglas Factors because

[00:20:29] Speaker 02:
some of the language tracks, the Douglas Factors, for example, the nature and seriousness of the misconduct in relation to the employee's position and responsibilities.

[00:20:39] Speaker 03:
I certainly agree with you on that, but there are certain factors that seem entirely absent from discussion.

[00:20:45] Speaker 03:
What about that?

[00:20:46] Speaker 03:
For example, comparators, that kind of thing.

[00:20:50] Speaker 02:
So on the one hand, there are other Douglas Factors that I think by

[00:20:59] Speaker 02:
mitigating the penalty the board did consider.

[00:21:06] Speaker 02:
But it does not specifically mention them.

[00:21:12] Speaker 03:
But is that OK?

[00:21:13] Speaker 03:
Is that OK?

[00:21:14] Speaker 03:
I mean, the board is charged when it gets rid of one of the charges and is only going to move forward on the other.

[00:21:20] Speaker 03:
It is charged with reviewing and doing its own independent assessment of the Douglas Factors on just this one charge.

[00:21:26] Speaker 03:
If they expressly don't mention,

[00:21:29] Speaker 03:
several of the Douglas factors.

[00:21:30] Speaker 03:
Does that suffice?

[00:21:33] Speaker 02:
The board is only required to analyze the relevant Douglas factors.

[00:21:37] Speaker 02:
So if they decided that some of those factors were not relevant to this case, then they are able to do that without error.

[00:21:46] Speaker 03:
Do you have any cases of ours or anything that would suggest it's OK for the board to not mention some of the Douglas factors?

[00:21:55] Speaker 02:
I mean, the Douglas

[00:21:59] Speaker 02:
factors case says that only the pertinent ones might be considered in a particular case.

[00:22:08] Speaker 04:
Specifically on the question of comparators, which your friend on the other side brought up, was there information about comparators from either side that was in the record?

[00:22:22] Speaker 02:
In the record, I can't recall specifically where.

[00:22:28] Speaker 02:
The deciding official did consider whether there were any comparators and found there were none.

[00:22:35] Speaker 03:
OK.

[00:22:38] Speaker 03:
Why don't we hear from Mr. Camino?

[00:22:54] Speaker 00:
Just two quick thoughts, if it may please the court.

[00:22:57] Speaker 00:
Everybody's been working hard this morning, looking through the record, trying to find evidence of disruption in the workplace.

[00:23:05] Speaker 00:
I think if three learned justices are having the same problem I am, it is clear that the MSPB opinion does not contain evidence to support that allegation of disruption.

[00:23:18] Speaker 00:
The other thing I would bring to the Court's attention in closing is

[00:23:22] Speaker 00:
Counsel said near the end of her argument about, well, they only have to review the relevant Douglas factors.

[00:23:28] Speaker 00:
Well, that's not what any of this court's previous opinions say.

[00:23:33] Speaker 00:
This court's opinions from Williams,

[00:23:38] Speaker 00:
Ball versus Department of Navy, Murano versus Department of Interior, Torres versus Department of Homeland Security, all say you need to review the Douglas Factors, not just to pick and choose.

[00:23:51] Speaker 00:
We think they failed to do that, and their opinion shows that.

[00:23:55] Speaker 00:
And so we press our claim for the relief we request.

[00:23:58] Speaker 00:
Thank you.

[00:23:59] Speaker 03:
Thank both counsel.

[00:24:00] Speaker 03:
This case is taken under submission.