Speaker 1:

We have five cases on the calendar this morning. One from the Veteran’s Court and one from the District Court and one from the Trade Court, one from the [inaudible 00:00:11], and one from the Claims Court. We truly are a diverse court. The Claims court case has been submitted and won’t be argued. The first case is Marcus Colachelli versus the Department of Veteran’s Affairs, 2020-2048. Mr. Lawler.

Brian Lawler:

Good morning Your Honors.

Speaker 1:

Good morning.

Brian Lawler:

Counsel. May it please the court, my name is Brian Lawler. I represent the petitioner in this matter, Marcus Colachelli. Mr. Colachelli, at the meritus protection board was denied a request for 22 days of additional paid military leave for calender years 2016, 2017, and, 2018. Administrative Judge Hertwig indicated in his initial decision, he would have granted Mr. Colachelli the relief requested had he timely notified the Veteran’s Affairs of his request. At the time Administrative Judge Hertwig, did not have what we now know to be Mr. Colachelli’s request, the emails. They were in the possession of the VA, were not produced inadvertently, however, I don’t know that I’m suggesting it was nefarious.

Speaker 1:

He didn’t… he certainly knew what he had done or hadn’t done and he didn’t argue that he made the request during active duty. Correct?

Brian Lawler:

He did not make that argument.

Speaker 1:

That’s the basis upon which the board decided the case.

Brian Lawler:

That’s correct Your Honor.

Speaker 1:

So, why isn’t that the end of it?

Brian Lawler:

I’m sorry Your Honor. I can’t hear.

Speaker 1:

What isn’t that the end of it?

Brian Lawler:

Well, we now know that the evidence, the emails in which he did make the requests, do exist. Had Judge Hertwig said you didn’t timely make these requests of the additional leave and there was no corroborating evidence, we would not be here. But we’re here because there is that evidence. Those email do exist. Mr. Colachelli did timely make his, make the request. That evidence simply wasn’t a part of the agency file on which we or the judge could make… on which we could assert our argument and on which Administrative Judge Hertwig could base his decision.

Speaker 3:

Why didn’t he mention those emails?

Brian Lawler:

Because Your Honor, he didn’t know that they… the hundreds and hundreds of emails, he did not know that they were missing from the agency file until Administrative Judge Hertwig issued his initial decision. Once he read that the basis for the decision, Mr. Colachelli then he looked for them and said, yes he had the two that clearly show he made a request. Then snippets of a third email that seemed to be a response from the VA to him that he believes was also a request. I think that was the 2018.

Speaker 1:

But he was a lawyer.

Brian Lawler:

He is a lawyer.

Speaker 1:

He should know legal procedure and the necessity of making a proper argument in the proper time. He was represented by counsel, right?

Brian Lawler:

Yes sir.

Speaker 1:

But, okay, there is a basis for the board to reopen. Section 1201118, right?

Brian Lawler:

That is true Your Honor, it is and we would submit that that certainly is an option we have if this court does not reverse and remand for Judge Hertwig to issue that decision again based on now, the full amount of evidence we have. I would submit to Your Honor that 5 USC 7703C allows this court to do just that. Because Judge Hertwig’s decision was not based on a rule or regulation having been followed and we would submit that that rule was 5CFR1201.25, which was the board’s rules and the agency file, specifically what the agency needs to produce. It’s the agency’s onus to produce those… to proactively produce those.

Brian Lawler:

Because neither party propounded discovery requests in this case. That’s fairly typical for the cases that we have in the MSPB, because the agency has an affirmative duty to provide the agency files. It doesn’t really make sense to do a request for production when all the documents are supposed to be provided affirmatively by the agency.

Speaker 1:

So he asked the AGA to reopen. Is that right? And the AGA said, I can’t do it. It’s got to be the board.

Brian Lawler:

That’s correct Your Honor. He did do that and at the time when this was done, not only could AGA Hertwig not reopen of his own accord. There’s no board. There was… not a quorum. There were no members of the full board at the time. I think two had been nominated. I don’t know if they’ve been confirmed, but there wasn’t and the estimate that we’ve gotten from several sources is you’re looking at a three to a five year backlog when the board finally does get quorum. So we didn’t think we were prohibited from letting the initial decision become final and appealing, timely appealing to this court.

Brian Lawler:

It certainly seems more to Mr. Colachelli’s benefit not to have to wait whatever period of time will be that backlog at the board.

Speaker 1:

So your argument is that even though he didn’t raise the issue before the board, the board should have had the evidence that he didn’t produce.

Brian Lawler:

That the agency didn’t produce. Yes Your Honor, that’s exactly right.

Speaker 1:

Or that he didn’t produce.

Brian Lawler:

That is true and again, I would invite the court to look at who’s-

Speaker 1:

Usually, when one appeals one has the obligation to produce-

Brian Lawler:

Well, we have them now.

Speaker 1:

They’re appealed.

Brian Lawler:

I’m sorry Your Honor. I didn’t mean to cut you off. They are now included in the appendix. I think it’s pages 212 to 216. Those emails that show he did look, or excuse me, he did request the leave. Timely request the leave too and that’s also part of the issue is according to the statute, you have to request the leave and use the additional paid leave while you’re on that period of active service. Clearly, an Administrative Judge in this court could go back and rectify that, but if the service member himself or herself has to do it while they’re on that period of leave, which Mr. Colachelli did.

Speaker 3:

If we find against you, do you plan on filing another motion to reopen? Is that kind of the next step?

Brian Lawler:

I’m sorry. Did Your Honor say if we… if the court rules against us?

Speaker 3:

Yes.

Brian Lawler:

We will. We absolutely will. We know that that’s an option, but again, based on the status of quorum at the board, we don’t know how long that would take. No one’s suggesting that’s not an option. In the agency’s briefs, it is correct. That certainly is something we can do.

Speaker 1:

The AGA denied the request to reopen.

Brian Lawler:

Yes sir because this appeal was pending. So as the agency points out, the shell game if you will, would be to have dismissed this appeal and-

Speaker 1:

So that’s a jurisdictional issue. That’s not a decision on the merits holding that the AGA could not reopen it aside from the fact that the issue was on appeal here.

Brian Lawler:

I think that’s right, but that’s also not the basis for our appeal. That is something we could do. Again, I come back to if this court denies our petition and we go back, we will ask the board to reopen, but then it becomes well how long is that going to take. At what point does that get heard? Section 118 suggests that it… petition to reopen should be close in time. That’s not really defined, but close in time to the initial decision. Obviously, we’ve had this appeal pending. I suppose once we… if we do that, if this court does not agree with us and if we do that, I don’t know how long that’s going to take.

Brian Lawler:

Again, that’s the premise for why we selected this avenue. Not another petition to reopen. Unless Your Honor’s have any further questions, I don’t have anything more.

Speaker 1:

We will save your time counselor.

Brian Lawler:

Thank you Your Honor.

Speaker 1:

Mr. Smith. He’s sort of in a bind isn’t he because there’s no board?

Mr. Smith:

Your Honor’s I don’t… I think it’s a bind of his own creation unfortunately. Mr. Colachelli was in possession of these emails and further the… Frankly, he was in possession of these emails and maybe would not have to go to the board to reopen the case had they been adequately produced. Further, I understand that three nominations are currently pending confirmation having past committee. This isn’t an issue as we’ve seen other MSPD appeals where we might be waiting years and years and years. Also, we have issues of improper removal from a position. This is seeking back pay, interest would in fact be provided, should Mr. Colachelli prevail below.

Speaker 1:

Are you saying this is a problem of his own making? There is that concept of presumption of regularity in the activity of the government, which always almost always is used against the petitioners. Why shouldn’t he have been able to rely on the presumption of regularity of the government doing its job and putting those documents into the record?

Mr. Smith:

Your Honor, I think the question of whether these documents should have been produced actually underscores the fact that this should be sent down for consideration in the first instance, by a fact finder. These emails and first of all, I think there’s a question of whether they support the argument that Mr. Colachelli would use them to make. There’s also the issue of that these emails, at least several of them, appear to have been sent from Mr. Colachelli’s Gmail account and therefore, may not have been part of the agency record that was required to be produced.

Mr. Smith:

In this case, again, these are difficult issues and frankly, a bit of a messy record below. I think that whether, one, whether this would be an exceptional case that requires reopening is a question for the fact finder. Two, whether there was an affirmative duty on the government to produce these emails as part of the agency record. And three, whether in fact these support Mr. Colachelli’s argument. All are important questions for the fact finder to address in the first issue.

Speaker 1:

So are you suggesting that you wouldn’t object to a vacating… to vacating this ruling and sending it back down for reconsideration?

Mr. Smith:

Your Honor, I think the more proper approach would be to affirm the decision and allow Mr. Colachelli to proceed to reopen because there is not really a argument here that this was improperly decided on the law or not supported by substantial evidence. That being said, I also think another alternative which was not pursued by either party in the briefing, would be to stay the current appeal. Then consider a motion for reopening below. I believe that has been prescribed by this court previously. I have cites to that effect if you’d prefer. In the event that the motion for reopening is eventually granted, the parties could immediately let this court know and we could proceed on remand. In the event that the motion to reopen was denied, then this court could issue an affirmance in this matter.

Speaker 1:

That would take years.

Mr. Smith:

Excuse me Your Honor.

Speaker 1:

That would take years.

Mr. Smith:

Unfortunately Your Honor, I… the timing is not ideal and Mr. Colachelli will certainly may have to wait before the board. I do understand that certain nominees have a procedure to fast track some of these matters. I also understand that this court has at least in other cases directed these matters to go directly to the Administrative Judge rather than the board on a remand. I do not and take no position as to whether that would be appropriate here. I believe in those cases, often we’re talking about purely administrative and ministerial matters. I do not think that is the case here, but that would also be an option for Your Honors to consider.

Mr. Smith:

That being said, I think the cleanest issue is to just simply affirm this decision. The issues raised by Mr. Colachelli were not raised before the board or properly before this court. There is no ruling on the motion to reopen for this court to consider. It was not on appeal here. Then Mr. Colachelli could certainly pursue his motion to reopen after this court affirms the current decision.

Speaker 1:

What would be the basis for the stay? You mentioned that as an alternative.

Mr. Smith:

Your Honor, I believe in the cases that I was looking at and I would draw Your Honors attention to Cawah versus The United States which is 2009-5075. In an unreported order, the petitioner sought a motion to stay the proceedings, the appeal, pending a 60D motion, which is somewhat analogous to a motion to reopen before the MSPB. Both require extraordinary circumstances. Both are available for the introduction of new evidence. The government did not oppose… we would not oppose a stay in this case provided that the court was willing to entertain that possibility.

Mr. Smith:

Then if Mr. Colachelli’s motion to reopen were denied, we could… the decision below would be affirmed.

Speaker 1:

What would be the benefit to Mr. Colachelli in a stay? Either way, he has the option to reopen.

Mr. Smith:

I agree with Your Honor. I don’t necessarily think there is a benefit. I just think that is a bit cleaner procedurally than to issue a remand as Mr. Colachelli proposes on a issue that is not properly before the court and hasn’t been preserved below. I do not necessarily think that is procedurally proper. So I am proposing an alternative, but again, the government in its brief and I have before you today, believe the cleanest and simplest issue here is to simply affirm the decision and have Mr. Colachelli proceed to file the motion to reopen as counsel has indicated he would today. I don’t believe there’s anything stopping him from doing so.

Speaker 1:

Because the board and the person of the AGA made no error of law or facts in your view? From the governments view?

Mr. Smith:

Precisely, and I believe, frankly, I do not believe that that has been alleged below. I understand that Mr. Colacheilli relies on a 7703B argument that the decision was not made after proper procedures. I’m not sure that is an effective argument given that here is no argument that the judge waived the evidence that was before him. The evidence that’s urged by Mr. Colachelli today was not before him and apply the law correctly under the evidence that was provided. I believe that is in proper procedure.

Mr. Smith:

That frankly, there are other procedural avenues to argue that evidence would have been considered. Namely a motion Three Opening. Unless Your Honors have any further questions, I will seize the remainder of my time.

Speaker 1:

Thank you counsel. Mr. Lawler had no rebuttal talk.

Brian Lawler:

Thank you Your Honors. I think when we get back to the issue, the main issue. In fact the sole issue, is… as Your Honor pointed out correctly. The duty to produce the evidence in these cases is incumbent on the agency. That is an affirmative duty.

Speaker 1:

Is that argued and decided below?

Brian Lawler:

No Your Honor, it wasn’t because again, this is where we get circular. We didn’t know that the emails weren’t produced until after the initial decision which Judge Hertwig said, “You didn’t timely request the leave.” We find out that he did. Those emails, which were sent from Mr. Colachelli’s Gmail, but they were sent to VA.gov domains. So the agency simply had to do a look more thorough look than it did to produce these documents and it did not.

Brian Lawler:

That’s where we get back to. So we’re not suggesting that Judge Hertwig made a mistake in his ruling because he didn’t have the benefit of all the evidence below. We’re suggesting that the remand, the reversal, the remand directed at Judge Hertwig now with the benefit of having these and ostensibly other emails that show Mr. Colachelli did in fact request, timely request the leave. Judge Hertwig said, had he timely requested the leave I would have granted the relief. Specifically, the 22 days of additional paid leave for those three calendar years. It, frankly, seems rather simple to do that by this court to reverse remand directly to Judge Hertwig, who would then put those email in front of him.

Brian Lawler:

My sense is it takes him about a day or two to review and rewrite that initial decision because he clearly indicated how he would have ruled had Mr. Colachelli timely, had he the benefit of the evidence that Mr. Colachelli timely requested the leave we now know he did. That’s something we just simply can’t get away from and the agency can’t, in whatever procedural posture the agency wishes to frame this, it still can’t get away from the issue that those emails do show that Mr. Colachelli-

Speaker 3:

What is your view on the stay possibility that was raised-

Brian Lawler:

It’s the first I’ve heard of it. I’m generally amenable to creative solutions. But like Your Honor indicated, I… what benefit would the stay bring us? Because then we’re still down… assuming the board would reopen and they didn’t because this appeal was pending. If Your Honors were to write an order that said, we’re stayed, but you can entertain a reopening, I suppose that would be possible. That’s not something I would argue against. But I do get back to, okay, but then how long is this going to take? So if we have three nominees, when they’ll be confirmed and then how do they start getting through the backlog?

Brian Lawler:

I don’t know that we would get any sort of preference to go to the front of the line and have this case reopened. Maybe. I just don’t know.

Speaker 1:

But we have to decide a case on the law and the facts and the standard of review, not taking into consideration the political aspects of appointees.

Brian Lawler:

I understand that Your Honor and again, I think our reliance on 7703 and that the opinion was rendered, the initial decision was rendered without a rule or regulation having been followed. Not Administrative Judge Hertwig not following the rule or regulation, but the agency not doing so in compliance with the boards orders. As Your Honor correctly pointed out, that is their duty and I think Mr. Colachelli has… certainly has the right to rely on, as Your Honor pointed out, the government to do its job, which it did not do in this case to his detriment.

Brian Lawler:

We know he’s going to be entitled to that leave at some point. It’s whether Your Honors reverse and remand so Judge Hertwig can do it, or we do a petition to reopen, which we think would be granted given these are unusual circumstances, right? We’re up on an appeal after acquired evidence. I think that would be granted.

Brian Lawler:

Thank you Your Honors.

Speaker 1:

Thank you both counsel. We will take the case under submission.