Privileged to have with us Judge Patty Saras from the District Court in Massachusetts who is sitting by designation. It's our privilege to have her with us and we welcome her to the Federal Circuit. We have an interesting array of cases. Two cases submitted on the briefs and four cases scheduled for argument. The first case for argument is Bowdoin versus the VA, Ms. Zyler. Good morning. May I please the Court and Jean Zyler representing the Palin-Loran Bowdoin in this case. This appeal comes before you from a final decision on the Merit Systems Protection Board, which we believe rendered its delegation of authority to its administrative judge, Anolity, Department of Veterans Affairs. Manchester New Hampshire terminated Mr. Bowdoin's employment. From there, the administrative judge following live hearing reversed the agency's decision and reinstated Mr. Bowdoin with no penalty and full back pay. The Board of Merit Systems Protection Board completely reversed the administrative judge and reinstated the agency's decision and penalty
. The question is how did we get such a dramatic turnaround between the trial and fact and the board? A searching scrutiny of the record is required for the decision of the board departs so fully from the decision of the judge. The Court has stated that the Board must defer to the administrative judge's determinations that are explicitly or implicitly based on observations of demeanor of testifying witnesses. The Board in this case avoided that difference by stating it did not reach the judge's credibility determinations. It claimed to have accepted the judge's findings, effect, and corrected his erroneous conclusions of law. This is not true. The Board looked at— Why is this not true? It's not true because they made findings based simply on what I would characterize as physical movements of the appellant without any determination of how the judge interpreted those movements or comments in relation to the facts. Your Honor, I would agree there was the whole interaction between this employee and a supervisor was largely agreed upon what actually occurred and the interaction they had. The actual words used and the judges findings based on the testimony he heard that he gave meaning to what was said was not dispute. It is the appellance was an opinion that the Board simply looked at the agency's version of events. It did not look at the judges version of events. Now I did look at the appellance version of events. I mean, it accepted all of the judges' conclusions as to what actually happened. Did it not? I mean, we're—we're didn't do that
. What particular incident or words did it face its conclusions on the use they were different than what the AHA found? Well, one of the most blatant differences, I believe, occurred at the end of this interaction, which the Board considered a blatant insolence by the appellant, occurred when he indicated that he asked the supervisor to leave. The supervisor said he ordered her to leave. The judge said that this was nothing more than a request for the supervisor to leave because the supervisor was blocking the exit. They had this—an agreement, they had a mediation agreement which was applicable to both of them. The judge recognized that and this that the Board could only have substituted its credibility decision for that of the judge by saying he ordered her to leave. The judge said he didn't order her to leave. He asked her to leave and he was reasonable in doing so because he had nowhere to go. And that was one finding. But is that a credibility or a finding of that? It seems to me that we talk credibility and they're not credibility, but this case seems to be more about something else which is kind of context, something called context, which is a legal term that's just a preoperate. And it seems to me that when there's a difference between the whole context in which these events arose and therefore perhaps the consequence, why is that something that's solely in the discretion of the AHA? Why can't the Board also evaluate the whole context of that? I think the Board can evaluate the context but I think it evaluated it without considering what the judge heard when the people testified before him. And the context was this, these people had an inter—a history of interactions with each other. They had an agreement that was mutual of how to deal with that. The judge found that the supervisor suggested that this employee should quit his job
. The supervisor said she didn't say that. I just suggested he make a change and I would help him, I would coach him. And the employee was— Even assuming his—that version, assuming everything he says is true, I think one thing that was found was that he invaded her space even though minimally. And there was enough room between them to cross his arms. That was undisputed. But that's very close. That's very—I mean, I just—it's a foot away. So why isn't that insolence? I disagree with the characterization that insolence and defiance are the same. I think the judge found he was defiant. And those two words have different meanings. Insolence has a meaning of a more confrontational meaning. In this case, as a judge found and the judge specifically said, it was not insolent, it was defiant. And he understood the difference
. This—this employee was defiant in the sense he was resisting his supervisors' criticism of his job, which the judge found was unjustified. He heard the supervisor—didn't know what she was taught. Let's assume she's dead wrong. Absolutely dead wrong. She thinks, you know, you're doing a lousy job. Maybe she's doing a fabulous job. She suggests that he leave and that's not a fair thing to do. But then he comes right into her face after two prior incidents, apart from who had to leave. And why isn't that either defiance or insolence? That's not how you deal with the supervisor. Because I don't think—in this—in it is a context, I don't think he did come into her face. I mean, I think that's what the judge found is that he—we're talking about a physical movement. They all agreed he approached her. He crossed his arms
. But he had a reason for doing that. And it was because of what she said to him. And the judge found, contrary to what she testified, that she did say what? The appellant said—she said to him. Maybe that's true. His defiance was to say—incensually, I don't agree that I should quit my job. I don't agree that my job—doing my job wrong—and the judge found he was truthful. He believed—pretably believed what she said. He said, as opposed to the supervisor. And I don't think the board can just reach in and say, well, we're just going to look at how he moved around the room. I mean, it was a small face. She wouldn't get out of his way. No, not in this context. I mean, the finding was they moved close to her, planted his feet and crossed arms, and said to her, what do you have to say to me? What do you have to say to me now? And the disagreement was whether it was a foot or a few inches
. But there's no dispute on the rest of that having occurred, correct? Just to this extent of how threatened he was, I think the judge found he wasn't threatening to her implicitly that he was moving towards her. He did leave some space. And the judge found it significant that he had enough room to cross his arms. And the judge's reading that indicated he was not right up in her face. And I just, the view is that the record had to be viewed as a whole and not for the board to reach in and say, well, he walked up to her. Or he came up to her and he said this and she did nothing. That's not how the judge found. But looking at the record as a whole and looking at the findings that the administrative judge made, it seems to me that this simply turns not on credibility, but on the legal consequences of the facts found. And the board certainly is within its discretion in concluding that the legal consequences are other than what the administrative judge concluded. And that's my disagreement as I think it did turn on credibility findings that the board ignored. I don't think it occurred just so we all agreed what happened. We agreed that these people had an interaction and we do agree the appellant made some movements towards the supervisor. But there were findings that the judge made hearing the testimony of the witnesses that made him give credit to the appellant's version of events that justified the appellant's actions
. And the board simply said, well, we're just going to pretend that doesn't matter and say, well, he moved this way, he said this, we're going to ignore this. I did anything. I mean, you're relying, you're hanging your hat not really on differences in credibility, but on what the judge found that in the context, some of this may have been justified. And is it a fair game for the board to say to dispute that or to say it doesn't matter because even if it was justified, he still cannot. The agency is free to say that's another matter, but you're still not, even if provoked, you're still not allowed to do certain things. Why is that outside of what the board is able to do? The agency in the first instance and the board in a second. I mean, the board obviously has its authority to change the decision of the judge and make the final decision. I just think that it can't just have designated this authority to a judge, to hear the case, and have the judge sit there and hear and hear the witnesses, and make determinations about how these people interacted and that it was very significant to him, how they interacted. Listening to their versions of events. And then for the board, just essentially say, well, we don't really agree with his version of events. We agree with everything the agency said. And in my reading, that is what they did. They said, we agree, he did everything wrong, she did nothing wrong
. And employees aren't robots. They were allowed to speak to their supervisors. They're allowed to interact with their supervisors. And they are not allowed to be in subordinate and threatening to anybody in the workplace. You were well into your reputal, you want to reserve your time? I will just close and use up that time, I think. The board was not required to look at the record as a whole. They did not do that in this case. And that record included credibility, finding the differences in how the witnesses testified and what the outcome was in the judge's view based on what was said. And the final part is the court, the board looked in and looked at this employee's past disciplinary record. Well, the judge looked at that too and found that did not automatically make this individual at fault here. He listened to what they said during this interaction. And he found, despite what had happened in the past, this individual was not more at fault than the supervisor. And can we just blame one side, I guess we can, but I think when the judge has made findings that one side is not more to blame than the other side, then the appellate doesn't lose his job
. And we would simply as of the court respectfully reverse the MSBV's decision and reinstate the decision of the judge. All right, thank you. You do have some time, so we will reserve that for you. Mr. Morgan. May I please the court. The question before the court is whether the record contains substantial evidence supporting the decision of the Marit Systems Protection Board that Mr. Voden was disrespectful, ensue and willfully resistant to his supervisor. On December the 4th, 2003, when he charged his supervisor and challenged her during what can best be described as an in your face confrontation. Clearly, the record supports the boards determination for which reason the board decision should be affirmed. But does the characterization of this interaction as a confrontation in your face discussion, is that represents some credibility assessment of the facts? I don't believe it does, Ron. I believe it's as Judge Prost had identified earlier. It's a question of context
. Judge Saras mentioned that when you get in somebody's face, it's hard, I think, to argue that that's not confrontation. The board, as a matter of fact, even the administrative judge in this case, found that this conduct by the appellate was defiant. And yet he then concluded that this defiance was neither disrespectful nor insolence. The problem with that conclusion, whether you characterize it as a question of what the facts say or a conclusion of law, is that the board's law has consistently determined that insolence and disrespect are synonymous. It's a matter of fact, even if we go back to some of the basic levels and look at Websters doing an ascald dictionary, defiant is defined as insolent. That definition was adopted by the board in a case of the board cited called Bennett vs. Army. The real question here is one of taking the context in which this exchange occurred. And then taking that context and putting it in the further context that Mr. Bowden had not done this on one occasion or two occasions, but instead on three occasions. And those three occasions had occurred over the course of 18 months. Moreover, it wasn't just with one supervisor, as Dr. Levinson testified, this had been with two supervisors, different supervisors. I sometimes find it difficult here is what's a fact and what's a gloss on a fact, so that on the main point stressed by the appellant is the you need to leave. That may well be a fact in the sense of why it was asked, was it because of the size of the room or because it was insolent? And that's one piece where I think that there was a little bit of a different factual gloss put on by the MSPB than the administration. Yes, I agree, but what happens here under this court's decisions in both Abe and Conley to the extent that credibility determinations are not involved. The MSPB is free to substitute its judgment as to the significance of the facts and finding the facts. I couldn't tell how big the room was from what we had so that it was hard that where was the administrative judgment and a better position to make that credibility binding. Well, there was a drawing of some sort admitted or considered during this. I think that the important fact here is that evidently, Ms. Mahoney was at the end of the room and the confrontation occurred in such an environment that she was between Mr. Bowden and the door. Now, what we have is a situation where Mr. Bowden approaches Ms. Mahoney, whether this is he charged her as she said, and she also said she was intimidated by that. But then further said, I'm not going to allow myself to be intimidated
. I sometimes find it difficult here is what's a fact and what's a gloss on a fact, so that on the main point stressed by the appellant is the you need to leave. That may well be a fact in the sense of why it was asked, was it because of the size of the room or because it was insolent? And that's one piece where I think that there was a little bit of a different factual gloss put on by the MSPB than the administration. Yes, I agree, but what happens here under this court's decisions in both Abe and Conley to the extent that credibility determinations are not involved. The MSPB is free to substitute its judgment as to the significance of the facts and finding the facts. I couldn't tell how big the room was from what we had so that it was hard that where was the administrative judgment and a better position to make that credibility binding. Well, there was a drawing of some sort admitted or considered during this. I think that the important fact here is that evidently, Ms. Mahoney was at the end of the room and the confrontation occurred in such an environment that she was between Mr. Bowden and the door. Now, what we have is a situation where Mr. Bowden approaches Ms. Mahoney, whether this is he charged her as she said, and she also said she was intimidated by that. But then further said, I'm not going to allow myself to be intimidated. And then when she got face to face or when Mr. Bowden got face to face with her, she offered Mr. Bowden the opportunity to take a time out. Now, after we chuckle about that, thinking about our kids, this is exactly the kind of situation that was anticipated when this prior mediation agreement was entered into. That is, provide Mr. Bowden with the opportunity to withdraw from this situation. His supervisor asked him repeatedly, do you need a time out of valing him of the opportunity to avoid this confrontation? He didn't answer the question, despite her repeated requests, and ultimately said, I think you should leave or you have to leave. But there is just no way, and I think that the board was clear in this. There was no way to take these facts and conclude other than on December 4, 2003, Mr. Bowden for the third time was disrespectful, insolent, and willfully resistant to a supervisor. Now, there was some talk about credibility determinations, and the only expressed credibility determination that the administrative judge made related to whether Mr. Bowden was familiar with the equipment and the maintenance of that equipment. From that, the AJ said, and it perhaps, Ms
. And then when she got face to face or when Mr. Bowden got face to face with her, she offered Mr. Bowden the opportunity to take a time out. Now, after we chuckle about that, thinking about our kids, this is exactly the kind of situation that was anticipated when this prior mediation agreement was entered into. That is, provide Mr. Bowden with the opportunity to withdraw from this situation. His supervisor asked him repeatedly, do you need a time out of valing him of the opportunity to avoid this confrontation? He didn't answer the question, despite her repeated requests, and ultimately said, I think you should leave or you have to leave. But there is just no way, and I think that the board was clear in this. There was no way to take these facts and conclude other than on December 4, 2003, Mr. Bowden for the third time was disrespectful, insolent, and willfully resistant to a supervisor. Now, there was some talk about credibility determinations, and the only expressed credibility determination that the administrative judge made related to whether Mr. Bowden was familiar with the equipment and the maintenance of that equipment. From that, the AJ said, and it perhaps, Ms. Mahoney, was unjustified in her criticism of Mr. Bowden. That goes to a question of provocation. The board has said provocation is not a defense to disrespect. The board has further said, and this court has indirectly adopted this, it seems, that provocation is something which is considered in the reasonableness of the penalty. This was the third time, even if somehow contrary to the board's belief, the court could conclude that Mr. Bowden was somehow provoked into this action. There are ways to do things and ways not to do it. And Mr. Bowden was clearly aware of the way to do things. How do we know this? From the record, there was a meeting scheduled later that morning, in which Mr. Bowden, with his union representative, was supposed to meet. I believe with Ms
. Mahoney, was unjustified in her criticism of Mr. Bowden. That goes to a question of provocation. The board has said provocation is not a defense to disrespect. The board has further said, and this court has indirectly adopted this, it seems, that provocation is something which is considered in the reasonableness of the penalty. This was the third time, even if somehow contrary to the board's belief, the court could conclude that Mr. Bowden was somehow provoked into this action. There are ways to do things and ways not to do it. And Mr. Bowden was clearly aware of the way to do things. How do we know this? From the record, there was a meeting scheduled later that morning, in which Mr. Bowden, with his union representative, was supposed to meet. I believe with Ms. Mahoney. Clearly, he knew how to address these things in other than a confrontational, disrespectful or insolent manner. And he did not do that. Judge Sarah's may have been referring to this. The concern, the question I have in my mind with respect to this case, is that the one particular aspect of the incidence, which is in the original letter, among other things, they said, you step forward and given the space, your supervisor had to step back at the brushed pasture to go to the door. So that seemed to be a separate conduct that he was being charged with as being sort of menacing, intimidating. And the board also included that. The board says, and brushed by her when she did not act, we asked to request to leave the area. But aren't the A.J.'s findings of fact, really, just plain findings of fact in terms of what happened, and aren't those probative and don't those resolve that dispute, so that at least that particular aspect of this entire confrontation, was not, did not constitute disrespect of its coordination? I believe that the board addressed that, at least indirectly, when, if not directly, when the board said that the appellate demonstrated, willful resistance to his supervisor, when he refused the supervisor for a quest that he stepped back, and did not immediately take his supervisor's offer of a time out. Further, the board then says, not only that, in a footnote, on footnote 3, it says, Mr. Bowden also demonstrated insulin's toward a supervisor in other ways, including advancing toward a supervisor, raising his voice, posing face to face with a supervisor with his arms crossed, challenging her to respond to these questions and stating that a supervisor should leave the area
. Mahoney. Clearly, he knew how to address these things in other than a confrontational, disrespectful or insolent manner. And he did not do that. Judge Sarah's may have been referring to this. The concern, the question I have in my mind with respect to this case, is that the one particular aspect of the incidence, which is in the original letter, among other things, they said, you step forward and given the space, your supervisor had to step back at the brushed pasture to go to the door. So that seemed to be a separate conduct that he was being charged with as being sort of menacing, intimidating. And the board also included that. The board says, and brushed by her when she did not act, we asked to request to leave the area. But aren't the A.J.'s findings of fact, really, just plain findings of fact in terms of what happened, and aren't those probative and don't those resolve that dispute, so that at least that particular aspect of this entire confrontation, was not, did not constitute disrespect of its coordination? I believe that the board addressed that, at least indirectly, when, if not directly, when the board said that the appellate demonstrated, willful resistance to his supervisor, when he refused the supervisor for a quest that he stepped back, and did not immediately take his supervisor's offer of a time out. Further, the board then says, not only that, in a footnote, on footnote 3, it says, Mr. Bowden also demonstrated insulin's toward a supervisor in other ways, including advancing toward a supervisor, raising his voice, posing face to face with a supervisor with his arms crossed, challenging her to respond to these questions and stating that a supervisor should leave the area. So, almost, in addition to what the court has pointed out, that maybe he didn't touch her, or if he did, as the A.J. found any was minimal or was incidental to his leaving. But the fact remains, there was clearly conduct, the record is replete with conduct, which supports the board's determination that Mr. Bowden, in this instance, was insulin disrespectful and willfully resistant. Moreover, the board is... What was disrespectful and insulin about, I mean, A.J. found he didn't, roughly against her, correct? That's correct, and you're on a..
. So, almost, in addition to what the court has pointed out, that maybe he didn't touch her, or if he did, as the A.J. found any was minimal or was incidental to his leaving. But the fact remains, there was clearly conduct, the record is replete with conduct, which supports the board's determination that Mr. Bowden, in this instance, was insulin disrespectful and willfully resistant. Moreover, the board is... What was disrespectful and insulin about, I mean, A.J. found he didn't, roughly against her, correct? That's correct, and you're on a... So, what is insulin disrespectful about that particular aspect? I don't know if there is anything insulin disrespectful about that aspect in this context. But the fact remains, that by itself, even if we were to assume that that wasn't disrespectful or insulin, the record is still replete with conduct, which is. Finally, there's some... in the A.J. opinion, he says, that Mr. Bowden was entitled to some leeway. And in support of that determination, the A.J. sites a case called Dagle. Now, the problem with that authority is it has nothing to do with the facts of this case
. So, what is insulin disrespectful about that particular aspect? I don't know if there is anything insulin disrespectful about that aspect in this context. But the fact remains, that by itself, even if we were to assume that that wasn't disrespectful or insulin, the record is still replete with conduct, which is. Finally, there's some... in the A.J. opinion, he says, that Mr. Bowden was entitled to some leeway. And in support of that determination, the A.J. sites a case called Dagle. Now, the problem with that authority is it has nothing to do with the facts of this case. In Dagle, what had occurred was Mr. Dagle was in the E.O. counseling session. And to clean up his language, he told the E.O. counselor that if I weren't a sane man, I'd go get a gun and shoot that my supervisor. The threat to the extent there was a threat was not made to the supervisor. It wasn't made in the day-to-day work environment. That's not what is presented in this case. And for that reason, the board rejected the A.J.'s determination that perhaps Mr
. In Dagle, what had occurred was Mr. Dagle was in the E.O. counseling session. And to clean up his language, he told the E.O. counselor that if I weren't a sane man, I'd go get a gun and shoot that my supervisor. The threat to the extent there was a threat was not made to the supervisor. It wasn't made in the day-to-day work environment. That's not what is presented in this case. And for that reason, the board rejected the A.J.'s determination that perhaps Mr. Bowden was entitled to some leeway in this environment. This is not the first instance that I had mentioned before the VA was left with no alternative. As a matter of fact, even their penalty table said on the third instance, the only choice is dismissal. For all of these reasons, the government forced that this court affirm the mere systems protection board decision. Clearly, there are substantial efforts, and clearly the board was correct in sustaining the A.J.'s decision to dismiss Mr. Bowden. Thank you very much. Thank you. Miss Eilor, any comments? Yes. The comments less than the time allotted. Just because this issue of prior discipline keeps coming up, I just want to emphasize that what supports the board's decision is this emphasis on what Mr
. Bowden was entitled to some leeway in this environment. This is not the first instance that I had mentioned before the VA was left with no alternative. As a matter of fact, even their penalty table said on the third instance, the only choice is dismissal. For all of these reasons, the government forced that this court affirm the mere systems protection board decision. Clearly, there are substantial efforts, and clearly the board was correct in sustaining the A.J.'s decision to dismiss Mr. Bowden. Thank you very much. Thank you. Miss Eilor, any comments? Yes. The comments less than the time allotted. Just because this issue of prior discipline keeps coming up, I just want to emphasize that what supports the board's decision is this emphasis on what Mr. Bowden had done before. It's not what he did in this case and the judge addressed that. And he nevertheless, listening to these two people discuss what happened that day, thought Mr. Bowden was credible in how he described what happened, and he did address the context, and he did say he was justified to some extent in what he did. And this reliance on this word defiant is not proper, because the MSPB has other cases, we think defiant is insulin. Does not mean it was the same in this case, and the judge twice, at least, emphasized he was not insulin, he was not disrespectful, he was defiant, and there is a difference between those two words. And one is saying, I'm just not going to act yes to what you say, that I did my job wrong, and I should quit my employment, that's what the judge found, and the supervisor testified differently to both of those instances, and that was her provocation. And for the board to say provocation only goes to remedy, and then turn around and say, do to penalty, and then turn around and say, but we're actually not going to consider it at all, is further damage to the judge's role in this case. He found enough to totally reverse this penalty. The board just stepped in, ignored what he did, and reinstated it without any other consideration. Thank you for your time. Thank you. Both counsel, the case is submitted