and administrative matter here within the court to hear. There's Rayna, I lose the admission of John A. Kelly. There was a member of the bar in bridge standing for the highest court of Virginia. I acknowledge of his credentials and I'm satisfied that he will possess the necessary qualifications. Motion, gentlemen. Judges. Granted. Looks like the motion's been granted. Jack, you've been my clerk for over a year now and we're gonna miss you. You know, you brought great skill and talent to my chambers as a law clerk during the past year. In addition to your legal acumen, I've really grown to respect and appreciate your discipline. You're a triathlete, you're a marathon runner, you're running the Boston marathon a number of times, including this past time
. You've even got my chambers running and you've got me running. And if you can do that, then that's big challenge. I've come to respect your legal skills and I know that you're a great practitioner and student of the law and I know that you're going to achieve great things and I expect great things from you. Jack. Good morning, ladies and gentlemen. We have three cases for our argument this morning and we have three cases that are submitted on the brief. The first case is Jackson versus GPO. Councillor Hanna, are you ready? Yes, Your Honor. Good morning and may it please the court, and congratulations to Mr. Kelly. I was also moved in by a judge I clerked for, but it was only a one panel clerk, one judge panel at the time that I was music. I hope he doesn't have a job with the government
. I wanted to talk a little bit about Miss Bolden Reed who was the woman at the government printing office who gave the instruction and the fertilizer test because I think that this entire case revolves around this Reed. The proposal alleged in its last count that that the court did not uphold the responsibility of acting favorably to the UPB both on and off duty and that she participated in an incident involving moral turpitude as a consequence of the allegation that she went to Miss Bolden Reed and tried to get her quote to tell the lieutenant and sergeant that you were in the class and were excused by her since she was already certified. Ms. Bolden, read Bull Me. Your client has, if she was removed from her position for various reasons, you know, failure to follow instructions, a lack of tender and inappropriate conduct. Yes, sir. If we find just for one of those reasons, that, that disposes of the case, correct? No, it doesn't because that there's no evidence to indicate that the penalty would remain the same. I also believe, Your Honor, that the issue with Ms. Bolden, read drives all of the other issues because Ms. Bolden, read was interviewed three times, gave three statements and never said that Corporal Jackson tried to get her to say that she was excused. And, in fact, when she testified live under oath before the administrative judge, again, all she said was that Corporal Jackson can do her and said, just say yes when the two supervisors come to her. In her opinion, the administrative judge acknowledges that there was no evidence from Ms
. Bolden read that she was asked to lie by Corporal Jackson. And the administrative judge ignored the fact that the testimony out of this own woman's mouth, he lied the allegation. She did not believe that Ms. Jackson was trying to get her to lie and she said nothing, nor was she asked whether the Ms. Jackson, Corporal Jackson said to her, tell them that I was authorized to leave early because I already had the class. So the issue for the court is, can the administrative judge take evidence from this witness, which essentially is the absence of any proof that Corporal Jackson tried to get her to lie and turn it into the opposite that she tried to get her to lie by relying on statements of other officials and officers at the government printing office? I would suggest that that notion is taking the flexibility of this administrative proceeding which allows her to say way too far. Well what about the other witnesses that were there during the initial conversation with Ms. Bolden read who testified that they did think that Ms. Jackson was coercing this read? You know, if we were in a trial setting where the rules of evidence were being applied, the statements of those witnesses would not be admissible at all because they're pure to try to impeach the testimony of Corporal Jackson because Corporal Jackson is the one in the legend. Right. He said Ms. We were in a court of law, but we're not real administrative, is he? That's how evidence is in this
. That's it is admissible. The question becomes really here. Can you take the sworn testimony of Ms. Bolden read who's the full promul of all of this? And he says, you know, I felt frightened a little coerced by the manner in which Ms. Jackson came in and turned that into an effort by Ms. Jackson together to lie when she didn't say that. That's just taking it too far. You would essentially allow your honor. The officials in the line here and the admins is undisputed that they were making book on Corporal Jackson and the admins is undisputed from Director Vernon himself. That he's a very bright and very good officer. They were making book on her. In this circumstance, can you allow the hearsay statements from these other witnesses to Trump, what this woman said, under oath, and she had three prior statements in each of those prior statements she was given the opportunity to say that Ms
. Jackson tried to get me to lie. It just didn't happen. And then you buttress that by the fact that one of the lack of candor allegations. Great. Can I get you a minute? Yes, sir. Why isn't it enough evidence all by itself, this July 11, 2011 letter from Ms. Bolden Reed? I felt that Corporal Jackson was trying to coerce me into lying or covering up what really happened. She didn't ask her to lie. The administrative logic admits there was no evidence that Corporal Jackson tried to get her to lie. She went and said to her, just say yes. That may have been her subjective feeling. But there were zero of those
. In fact, the opposite. That what Corporal Jackson was trying to do, and that's who we're talking about here, that Corporal Jackson was trying to get her to lie. Now if the allegation were that she was engaging in a threatening activity in the workplace, and that Ms. Bolden Reed felt threatened, then that's a different matter altogether. However, the standard for finding Ms. Condor is much, much higher than what occurred here. She had the opportunity three times when interviewed, and a final time when agency counsel had prepared the case in testifying in front of the administrative law judge. And to say, Corporal Jackson told me to tell them that I released her from the class. I excused her from the class because she already had the certification. She never testified that. But that's the allegation. And this is buttressed by the fact that it's obvious that Lieutenant Rivera
... But to what extent are you relying on a distinction between what Corporal Jackson expressly said or expressly did not say, versus an inference about the most natural meaning of what she said, just say yes and understood by the person to which that sentence just say yes was directed. Well, Corporal Jackson had already spoken to Rivera and Solomon, and they had accused her of not going to the class at all. And so, Corporal Jackson goes to her and says when they come to see you, just say yes. She's asking her to tell the truth. Well, how do we know? One could draw a different inference because of that word at the expression just say yes. In context, it could very easily mean, in fact, it feels like it more naturally means. Keep your testimony limited so that you only give a favorable answer and then stop. But the allegation, your honor, is that Corporal Jackson told her to say that she had excused her. And there's no evidence that that's the allegation. And so, we're talking about whether the proof is sufficient to support that
. Well, there were other people at the June 14th meeting where Jackson met with Solomon. Lieutenant Manor, a few other was there. That's Solomon's boss and officer Edgar James, who is the union representative. So there was other individuals at that meeting. And their testimony is all consistent that they felt that this exchange that Mr. Jackson was trying to cause Mr. Bowling Reed. So, I would suggest that what they did is when they decided they were going to package charges against Corporal Jackson. They went back and they packaged this as part of the allegations. I understand that director Vernon was alarmed when officer James reported to him his version of the conversation with Ms. Bowling Reed. I mean, Officer James even said the union isn't going to support this type of conduct
. That's a different issue, whether he fulfilled his fiduciary duty. But so the issue for director Vernon was whether in fact, she tried to get Bowling Reed to law. And there's no evidence of that. And one of the things that I find remarkable here is that at page 2002 of the transcript, I asked, I'm sorry, Mr. Crowley asked director Vernon if Ms. Bowling Reed told me, I'm sorry, what are you reading from, please? Sir, page number please? Page 202 of the transcript. 202 of the transcript. At line 13, Mr. Crowley asked director Vernon, quote, if today Ms. Bowling Reed told you that Jackson did not ask her to say that she was excused from class early. And Corporal Jackson agreed that she did not say that. Would that change your decision? And the answer was no, sir
. So you would believe James over both Ms. Bowling Reed and Corporal Jackson answered. Yes, sir. That's the hide in my view of an arbitrary and capricious decision maker when the person who is alleged to have been the one whose testimony was trying to be fabricated, whose being interfered with his almost obstruction of justice doesn't recite the actual facts of that act. Sir, you're into your rebuttal time now. Do you wish to preserve it? You're a minute over into your rebuttal time. I would like to take one more minute to say that I think it's important to understand that one of the allegations of the false statement was that she said that she went to the class at 1107. And that was the printout of the breathalyzer. Lieutenant Rivera was the one that she said this to knew that the breathalyzer times were inaccurate, so he couldn't possibly have believed when she showed him that breathalyzer time that she was telling him she was there at 1107. And how can they interpret that to suggest that she went there and was immediately excused because there are three times on the breathalyzer, the last time being 1120. So clearly she was in the class for at least 15 or 20 minutes and for them to allege that she represented that she was excused from the class in the case of that, I think, is the distortion in effort to try to get rid of a thorn in the side of the director. Thank you, Your Honor. Ms. Jackson's appeal in this case invites the court to do precisely what it has repeatedly said it will not do, which is re-way the evidence on the record and the credibility determinations that the administrative judge who had all of the witnesses and all of the evidence in front of her made in this case. We've cited the Henry case for that point, but you can, you can cite check the Henry case. This court has cited that case over and over and over again for the proposition that under these circumstances when there is an administrative judge who has had an opportunity to observe all of the witnesses and in this case there were a lot of witnesses. There were four separate witnesses in three different conversations who watched Ms. Jackson, listened to Ms. Jackson tell this story first to her supervisors, Sergeant Sullivan, and Lieutenant Rivera, then her conversation with Ms. Bowling Reed, and then her conversation with Director Burns. And one of the witnesses, Officer James, who at the time was in the position of being Jackson's own advocate, watched her go through three iterations of this conversation. All of these witnesses came away with the impression that Ms. Jackson was attempting to excuse her, her not being, her not being as a training when she originally ran into her supervisor by claiming that she had originally been at the training relatively on time and then being excuse. So this is not an instance of a of a meerkunique miscommunication as Ms
. Ms. Jackson's appeal in this case invites the court to do precisely what it has repeatedly said it will not do, which is re-way the evidence on the record and the credibility determinations that the administrative judge who had all of the witnesses and all of the evidence in front of her made in this case. We've cited the Henry case for that point, but you can, you can cite check the Henry case. This court has cited that case over and over and over again for the proposition that under these circumstances when there is an administrative judge who has had an opportunity to observe all of the witnesses and in this case there were a lot of witnesses. There were four separate witnesses in three different conversations who watched Ms. Jackson, listened to Ms. Jackson tell this story first to her supervisors, Sergeant Sullivan, and Lieutenant Rivera, then her conversation with Ms. Bowling Reed, and then her conversation with Director Burns. And one of the witnesses, Officer James, who at the time was in the position of being Jackson's own advocate, watched her go through three iterations of this conversation. All of these witnesses came away with the impression that Ms. Jackson was attempting to excuse her, her not being, her not being as a training when she originally ran into her supervisor by claiming that she had originally been at the training relatively on time and then being excuse. So this is not an instance of a of a meerkunique miscommunication as Ms. Jackson claimed. I'll break from my initial prepared remarks just to point out an absolutely canonical example of what I'm talking about when I say Ms. Jackson invites this court to re-way the record. And that is the transcript section that my colleague read to your honors in his okay remarks. That is the transcript session where counsel for Ms. Jackson asked Director Verne in the deciding official, well if you didn't have Ms. Bowling Reed's testimony on this, would you still have made the same decision? And he said absolutely yes, I would believe Officer James who is in the position of Ms. Jackson's union rep and had absolutely no reason to fabricate his testimony, who consistently testified that this was about Ms. Jackson claiming that she had been excused from class, even if Ms. Bowling Reed claimed otherwise. And he went on to explain that among other things, the one he spoke to Ms. Bowling Reed and she was shaken, she was frightened, and the turn he used was she was shaking like a leaf
. Jackson claimed. I'll break from my initial prepared remarks just to point out an absolutely canonical example of what I'm talking about when I say Ms. Jackson invites this court to re-way the record. And that is the transcript section that my colleague read to your honors in his okay remarks. That is the transcript session where counsel for Ms. Jackson asked Director Verne in the deciding official, well if you didn't have Ms. Bowling Reed's testimony on this, would you still have made the same decision? And he said absolutely yes, I would believe Officer James who is in the position of Ms. Jackson's union rep and had absolutely no reason to fabricate his testimony, who consistently testified that this was about Ms. Jackson claiming that she had been excused from class, even if Ms. Bowling Reed claimed otherwise. And he went on to explain that among other things, the one he spoke to Ms. Bowling Reed and she was shaken, she was frightened, and the turn he used was she was shaking like a leaf. And he essentially said especially given that, certainly I would trust Officer James who was there and not the target of these instructions to just say I suppose able to be a third party observer and reported consistently with everyone else that she was saying that she had to be excused. And the argument I heard coming from counsel from Ms. Jackson was, well you shouldn't believe that, that's arbitrary, that's wrong because you shouldn't have believed Officer James, you shouldn't believe someone else. And that's precisely what this court said again, it doesn't do, that's re-waying the evidence that was before the administrative judge who had the opportunity to determine, but I'm sorry, observe all of these witnesses determined who was credible. It's certainly, there was certainly an extensive amount of evidence on these all of these issues that supported the decision. This isn't an instance, for example, like some of the cases that Ms. Jackson decided where, and I'm thinking specifically, the Wade case and the spur-lock case that she cited in her reply brief, where the court said, well, there was the administrative judge who the decision below relied on one very flimsy piece of evidence and that doesn't constitute substantial evidence. Here they're saying- Let me ask you the same question I asked your colleague. If we affirm on, let's say the tender issue, the lack of tender issue, on that charge, does that dispose of the entire case? I would say you're honored that- You have to affirm all four charges there. No, you're honored. Director Vernon, and this is a page A100 of the record, I want to say A100 that's our appendix that we file. Director Vernon, in his decision, indicated that the second two charges, the lack of tender and inappropriate conduct charges would constitute a sufficient basis to remove Ms
. And he essentially said especially given that, certainly I would trust Officer James who was there and not the target of these instructions to just say I suppose able to be a third party observer and reported consistently with everyone else that she was saying that she had to be excused. And the argument I heard coming from counsel from Ms. Jackson was, well you shouldn't believe that, that's arbitrary, that's wrong because you shouldn't have believed Officer James, you shouldn't believe someone else. And that's precisely what this court said again, it doesn't do, that's re-waying the evidence that was before the administrative judge who had the opportunity to determine, but I'm sorry, observe all of these witnesses determined who was credible. It's certainly, there was certainly an extensive amount of evidence on these all of these issues that supported the decision. This isn't an instance, for example, like some of the cases that Ms. Jackson decided where, and I'm thinking specifically, the Wade case and the spur-lock case that she cited in her reply brief, where the court said, well, there was the administrative judge who the decision below relied on one very flimsy piece of evidence and that doesn't constitute substantial evidence. Here they're saying- Let me ask you the same question I asked your colleague. If we affirm on, let's say the tender issue, the lack of tender issue, on that charge, does that dispose of the entire case? I would say you're honored that- You have to affirm all four charges there. No, you're honored. Director Vernon, and this is a page A100 of the record, I want to say A100 that's our appendix that we file. Director Vernon, in his decision, indicated that the second two charges, the lack of tender and inappropriate conduct charges would constitute a sufficient basis to remove Ms. Jackson standing alone. So if he didn't rely on one of the charges, he was not on two. As a reminder, one of those two charges, the lack of tender charges, had two specifications and in order to sustain that charge, only one of those specifications has to be supported. So the one that he said wouldn't have affected anything was the one about failure to follow the instruction to show up at this training session in the first place? That's right. He said that was a serious charge, but that the other two standing alone were sufficient and that's important in the context of the briefing here because the various harmful error allegations that Ms. Jackson has made and her brief relate to the failure to follow instruction charge. Even though that's a serious charge, it makes the allegations effectively moot because Director Vernon stated that he would remove her based on the other two charges. Just focusing on the inappropriate conduct charge, there are a number of ways in which counsel from his jamson was erroneous in his characterization of the records, so I just wanted to correct those briefly on the record. The first is, he said that effectively that Ms. Boltingbury didn't say anything to corroborate what the other witnesses said. And that's not entirely true in the record that your honor cited, which is at page A66, I'm sorry, the letter that your honor cited, which is page A66 of the record, which we would agree, among other things, to amply supports the agency's determination here. Ms
. Jackson standing alone. So if he didn't rely on one of the charges, he was not on two. As a reminder, one of those two charges, the lack of tender charges, had two specifications and in order to sustain that charge, only one of those specifications has to be supported. So the one that he said wouldn't have affected anything was the one about failure to follow the instruction to show up at this training session in the first place? That's right. He said that was a serious charge, but that the other two standing alone were sufficient and that's important in the context of the briefing here because the various harmful error allegations that Ms. Jackson has made and her brief relate to the failure to follow instruction charge. Even though that's a serious charge, it makes the allegations effectively moot because Director Vernon stated that he would remove her based on the other two charges. Just focusing on the inappropriate conduct charge, there are a number of ways in which counsel from his jamson was erroneous in his characterization of the records, so I just wanted to correct those briefly on the record. The first is, he said that effectively that Ms. Boltingbury didn't say anything to corroborate what the other witnesses said. And that's not entirely true in the record that your honor cited, which is at page A66, I'm sorry, the letter that your honor cited, which is page A66 of the record, which we would agree, among other things, to amply supports the agency's determination here. Ms. Boltingbury made clear that the issue that Ms. Jackson came to discuss with her was telling her that her supervisor who were coming to discuss was what time that she had been at the training. And that's consistent with the story. I mean, certainly there's room for witnesses to discuss the tame type of issues in different ways. And that's the issue of that being about time, or it being about whether she was excused from class. These are all aspects of the story that Ms. Jackson told her supervisors. The second is when we discussed, when counsel discussed that Ms. Boltingbury never said that she was told to lie or anything of that nature, actually Ms. Boltingbury on several occasions indicated that she felt that Ms. Jackson was essentially acting her. This is particularly at page 216 of our appendix
. Boltingbury made clear that the issue that Ms. Jackson came to discuss with her was telling her that her supervisor who were coming to discuss was what time that she had been at the training. And that's consistent with the story. I mean, certainly there's room for witnesses to discuss the tame type of issues in different ways. And that's the issue of that being about time, or it being about whether she was excused from class. These are all aspects of the story that Ms. Jackson told her supervisors. The second is when we discussed, when counsel discussed that Ms. Boltingbury never said that she was told to lie or anything of that nature, actually Ms. Boltingbury on several occasions indicated that she felt that Ms. Jackson was essentially acting her. This is particularly at page 216 of our appendix. She was being asked to be dishonest, to cover things up, officer James, this is page 196 of the record. I'm confirmed that it appeared to him that Ms. Jackson was attempting to coerce Ms. Boltingbury and to cover things up. The only important thing to add is that officer James' testimony is absolutely not hearsay because, sure, he put in a statement, but he also came in and testified in court, and this is at several places in the record. But the one I have noted here is page 195 of our appendix, and through his testimony after that officer James testified directly in court that Ms. Jackson instructed Ms. Boltingbury to say if I was excused, and tell them if they asked I was excused, say yes. The other thing I would add is that, I'm sorry, two other quick things to add, which is that director Vernon also testified to that fact. He testified essentially that Ms. Jackson told a story to him that was consistent with the story that she told to everyone else. He testified that when he spoke to officer James and Ms
. She was being asked to be dishonest, to cover things up, officer James, this is page 196 of the record. I'm confirmed that it appeared to him that Ms. Jackson was attempting to coerce Ms. Boltingbury and to cover things up. The only important thing to add is that officer James' testimony is absolutely not hearsay because, sure, he put in a statement, but he also came in and testified in court, and this is at several places in the record. But the one I have noted here is page 195 of our appendix, and through his testimony after that officer James testified directly in court that Ms. Jackson instructed Ms. Boltingbury to say if I was excused, and tell them if they asked I was excused, say yes. The other thing I would add is that, I'm sorry, two other quick things to add, which is that director Vernon also testified to that fact. He testified essentially that Ms. Jackson told a story to him that was consistent with the story that she told to everyone else. He testified that when he spoke to officer James and Ms. Boltingbury directly after the incident that both of them, and this is a page 226 and 28 of the record, that all of them reported to him that Ms. Boltingbury reported to him that Ms. Jackson had instructed Ms. Boltingbury to confirm that she had been excused from past to confirm the story. And so while that thing, well director Vernon was not there, he certainly can report on what the witness is in this context, which is an administrative context and not in district court can report on those witnesses, and not just for their confirms. The last point I have on this issue, Your Honor, is just that this is not a case where the judge ignored this evidence. The administrative judge at page 8, 8, 8, 20, I'm sorry, 8, 21 of our appendix, did discuss a strong analysis of these issues and to her credit she made clear that yes Ms. Boltingbury's testimony differed somewhat from officer James about the extent of what Ms. Jackson has said, but she concluded and reasonably so from the evidence that the point of the story as Your Honor's noted in the, during opposing council remarks, was that Ms. Jackson was instructing Ms. Boltingbury to say yes regardless of the truth and that was heightened by the furtive movements that Ms. Boltingbury observed and the implication of the just say yes
. Boltingbury directly after the incident that both of them, and this is a page 226 and 28 of the record, that all of them reported to him that Ms. Boltingbury reported to him that Ms. Jackson had instructed Ms. Boltingbury to confirm that she had been excused from past to confirm the story. And so while that thing, well director Vernon was not there, he certainly can report on what the witness is in this context, which is an administrative context and not in district court can report on those witnesses, and not just for their confirms. The last point I have on this issue, Your Honor, is just that this is not a case where the judge ignored this evidence. The administrative judge at page 8, 8, 8, 20, I'm sorry, 8, 21 of our appendix, did discuss a strong analysis of these issues and to her credit she made clear that yes Ms. Boltingbury's testimony differed somewhat from officer James about the extent of what Ms. Jackson has said, but she concluded and reasonably so from the evidence that the point of the story as Your Honor's noted in the, during opposing council remarks, was that Ms. Jackson was instructing Ms. Boltingbury to say yes regardless of the truth and that was heightened by the furtive movements that Ms. Boltingbury observed and the implication of the just say yes. And that certainly, certainly sufficient to support the charge which involved allegations that she was acting in a way that was unbecoming to an officer and had asked Ms. Boltingbury to be untrue full about the issues around her attendance at training. So unless there are further questions I'm concluded. Thank you. Thank you. Mr. Han, you have three minutes left and I'll restore you back to four in the event that she needs that much. Thank you very much, Your Honor. The issue of what happened with Boltingbury presupposes that Corporal Jackson on the 14th told Rivera and Solomon a different statement about what happened that she told Solomon initially. She told Solomon initially I didn't know that I had the training and then went up. Now when she went up to them and gave them the documentation that showed the repilizer tests that was because on the 14th she thought Rivera and Solomon were accusing her of not going at all and on be knows to her they took that information as some kind of evidence that she arrived at 1107 obviously that's the reason for the lack of candor. My position is that that Corporal Jackson said that never happened in that conversation
. And that certainly, certainly sufficient to support the charge which involved allegations that she was acting in a way that was unbecoming to an officer and had asked Ms. Boltingbury to be untrue full about the issues around her attendance at training. So unless there are further questions I'm concluded. Thank you. Thank you. Mr. Han, you have three minutes left and I'll restore you back to four in the event that she needs that much. Thank you very much, Your Honor. The issue of what happened with Boltingbury presupposes that Corporal Jackson on the 14th told Rivera and Solomon a different statement about what happened that she told Solomon initially. She told Solomon initially I didn't know that I had the training and then went up. Now when she went up to them and gave them the documentation that showed the repilizer tests that was because on the 14th she thought Rivera and Solomon were accusing her of not going at all and on be knows to her they took that information as some kind of evidence that she arrived at 1107 obviously that's the reason for the lack of candor. My position is that that Corporal Jackson said that never happened in that conversation. I never told them that I went and was excused. Why would I? Because you see the three different times that were there. She would have to be profoundly stupid to tell them that she went and left it was excused because there were two other officers who were there. They were interviewed by James. They told James she was there. The problem here is that there was lack of communication on the 14th when Rivera and Solomon and Vernon listened to her and saw these printouts and they thought she was saying that she was there at 1107 and was there through 1120 and then somehow was excused and then encountered Solomon and went back. It's not possible and it's profoundly stupid for her to do that and therefore that's why it's important that Council for the government never asked Ms. Bowling Reed did she tell you to say that you excused her? It didn't happen. You can't allow Ms. Bowling Reed's testimony here to be trumped by everything else in the record. Thank you. Thank you very much