[00:00:00] Speaker 01:
Well, I think everyone in the court would be younger than I am.

[00:00:13] Speaker 01:
My first question before you get going is, did you understand Judge Moore's question?

[00:00:17] Speaker 00:
I did.

[00:00:22] Speaker 00:
I don't know the answer.

[00:00:24] Speaker 00:
I don't know the facts behind the case, but my gut response would be no, the board does not have the right, or the authority, I should say, to rule a statute unconstitutional.

[00:00:36] Speaker 02:
All right.

[00:00:36] Speaker 02:
This is case 2018-1477, Boe versus Interior Mr. Dahl.

[00:00:39] Speaker 02:
Please proceed.

[00:00:41] Speaker 00:
Thank you, Your Honor.

[00:00:42] Speaker 00:
Please report.

[00:00:43] Speaker 00:
My client's name actually is pronounced Boo.

[00:00:45] Speaker 00:
Oh, Boo.

[00:00:47] Speaker 00:
Wow.

[00:00:47] Speaker 00:
It's an interesting pronunciation.

[00:00:49] Speaker 00:
Got it.

[00:00:49] Speaker 00:
Mr. Boo was employed in the data unit of the Bureau of Indian Affairs, worked under the Department of Accountability and Production.

[00:01:03] Speaker 01:
In the blue brief at 18, you say the MSPB erred by not taking into consideration public statements made by Director Russell.

[00:01:13] Speaker 01:
Yes, Russell.

[00:01:14] Speaker 01:
Russell says that, yes.

[00:01:16] Speaker 01:
Well, that's great.

[00:01:17] Speaker 01:
We can simplify the spelling.

[00:01:19] Speaker 01:
But there's no citation provided.

[00:01:22] Speaker 01:
Would you give me a record cite to those statements?

[00:01:25] Speaker 00:
Yes, those were found, Your Honor, in exhibits P. P. is in Peter and in exhibits V. V. And where would they be in the record for us?

[00:01:39] Speaker 00:
To be honest, Your Honor, I'm not sure that those exhibits are in the record.

[00:01:43] Speaker 00:
It's really not one of the major issues that... We did raise it in our brief in chief, but it's not one of the major issues which I believe requires a remand at this point, Your Honor, to be quite honest.

[00:01:58] Speaker 01:
Listen, if you say it and I look for it and it's not there... Yes, I understand, Your Honor.

[00:02:07] Speaker 00:
We're not swirls looking for acorns.

[00:02:09] Speaker 00:
It was referenced in the transcript, but I do not believe that the exhibits themselves are part of the record.

[00:02:14] Speaker 04:
Can I ask a preliminary question?

[00:02:16] Speaker 04:
Sure.

[00:02:17] Speaker 04:
Sir, Mr. Boo no longer is employed by this agency.

[00:02:22] Speaker 00:
That's correct.

[00:02:22] Speaker 04:
He is farther away.

[00:02:24] Speaker 04:
What relief does he seek?

[00:02:27] Speaker 04:
I mean, typically in one of these situations, there's been some adverse action against an employee.

[00:02:33] Speaker 04:
He wants his record corrected.

[00:02:34] Speaker 04:
He wants this to happen.

[00:02:36] Speaker 04:
What relief are we?

[00:02:38] Speaker 00:
Well, I think that at the end of the day, and that's a very good question.

[00:02:42] Speaker 04:
Well, is there any skin in the game?

[00:02:44] Speaker 04:
I mean, is this really adverse here?

[00:02:48] Speaker 00:
At this point, that's your honor, I believe that he has moved to a different agency.

[00:02:55] Speaker 00:
And therefore, the only issues that remain that I think that Mr. Boo is concerned about is clearing his name with respect to the Euro of Indian Education.

[00:03:08] Speaker 00:
There was a finding of unauthorized commitment that he made with respect to the Charbonneau contract, which is referenced in the briefs.

[00:03:21] Speaker 00:
As a result of that, he believes that that's the primary adverse action that was taken against him.

[00:03:30] Speaker 00:
It was, of course, affecting his workload at the time that he was working with the BIE.

[00:03:36] Speaker 04:
So at the time that he was seeking additional pay.

[00:03:46] Speaker 00:
So the change in job conditions that Mr. Boo is alleging, Your Honor, is that they had to do work within the unit, the data unit, that otherwise would have been performed by Mr. Charbonneau under the contract.

[00:04:01] Speaker 00:
And so in that respect, it would be considered additional work.

[00:04:05] Speaker 01:
How does that finding of unauthorized contracting, about which you're concerned, follow him in his employment records?

[00:04:16] Speaker 00:
Well, Your Honor, I believe that it's part of his personnel record.

[00:04:20] Speaker 00:
I believe that if ever there's a situation where he is required or asked to be a contractor.

[00:04:28] Speaker 01:
How do we know it's part of his current record?

[00:04:32] Speaker 00:
Your Honor, in that respect, I cannot tell you that it is or is not currently.

[00:04:37] Speaker 00:
I do know that a finding was made to that reason.

[00:04:40] Speaker 01:
I understand.

[00:04:41] Speaker 01:
But the question is, does it impact him now?

[00:04:46] Speaker 00:
As he currently stands known, if he were to become a contracting officer representative for any reason in his current employment, though, it could be an issue.

[00:04:57] Speaker 00:
It might preclude him from exercising that ability.

[00:05:02] Speaker 00:
And one of the things that I think is important to understand.

[00:05:05] Speaker 04:
Does that future risk confer standing?

[00:05:10] Speaker 00:
I believe in this instance, Your Honor,

[00:05:13] Speaker 00:
It can.

[00:05:14] Speaker 00:
What's your authority?

[00:05:15] Speaker 00:
I have no authority.

[00:05:17] Speaker 00:
Thank you for your candor.

[00:05:20] Speaker 00:
Thank you.

[00:05:21] Speaker 00:
No, I really have no authority for that other than general principles of standing indicate that if you have an injury that is likely that that may still confer standing.

[00:05:36] Speaker 00:
Mr. Boo has a great deal of experience

[00:05:39] Speaker 00:
in the federal arena working as a contracting officer representative.

[00:05:44] Speaker 00:
And so I believe, and again, no authority, but I believe that there is a probability that he could have that ability, excuse me, or the opportunity.

[00:05:56] Speaker 00:
Anything in the record that shows that?

[00:05:58] Speaker 00:
No, sir.

[00:05:59] Speaker 00:
No, sir.

[00:05:59] Speaker 00:
That's not part of the record.

[00:06:02] Speaker 00:
But again, when the appeal was initially filed, Mr. Boo was still with the

[00:06:08] Speaker 00:
Bureau of Indian Education.

[00:06:11] Speaker 02:
I guess I'm a little perplexed because maybe I misunderstand the facts, but he was removed from being the COTR long before a finding, if I understand the facts right, long before the finding was made of this unauthorized commitment.

[00:06:28] Speaker 02:
So I guess I'm failing to understand how you're asking this court to give you some form of relief that would address any

[00:06:37] Speaker 02:
problem that isn't mooted by him no longer doing this.

[00:06:41] Speaker 02:
I don't understand.

[00:06:43] Speaker 00:
You are correct, Your Honor, that the formal finding was not made for a very long period of time after he was removed as a COTR.

[00:06:54] Speaker 00:
But the evidence does show that the accusation, if you will, of unauthorized commitment

[00:07:05] Speaker 00:
was being made at the time that he was removed as the COTR.

[00:07:10] Speaker 00:
And I guess the wheels of bureaucracy turned slowly so that the formal finding didn't occur until sometime later.

[00:07:21] Speaker 02:
So are you saying that the accusation is the reason he was removed from COTR?

[00:07:28] Speaker 00:
Yes, because the accusation, and this is in the record, was being made by Marlene Walker, who was the person that replaced him as the COTR, and who was, according to the testimony of Mr. Boo, his supervisor, even if not officially, for a period of time during the initial part of first half, I should say, of the year 2013.

[00:07:57] Speaker 00:
She would tell the acting deputy director of the division that Mr. Boo had made an unauthorized commitment.

[00:08:07] Speaker 00:
It was the acting deputy director that then made the determination, okay, I'm going to remove him.

[00:08:14] Speaker 00:
There is some questions whether or not he had the authority to do that.

[00:08:17] Speaker 00:
He was not a contracting officer.

[00:08:20] Speaker 00:
The contracting officer representative is generally supervised, at least in terms of the contract, by the contracting officer.

[00:08:28] Speaker 00:
In this particular case, the deputy director told the contracting officer, remove him from this contract, and he was removed.

[00:08:38] Speaker 04:
Getting back... The removal was by the contracting officer.

[00:08:42] Speaker 00:
I'm sorry.

[00:08:42] Speaker 04:
The actual removal was done by the contracting officer, and that's the proper way to do it.

[00:08:49] Speaker 00:
That is correct.

[00:08:49] Speaker 04:
Is there anything wrong with the boss telling the contracting officer to do that?

[00:08:55] Speaker 00:
No, if indeed the deputy director was the contracting officer.

[00:09:00] Speaker 04:
There's no fine in the ointment over the fact that he was removed.

[00:09:05] Speaker 00:
Well, there's a distinction there.

[00:09:07] Speaker 00:
And it's kind of a fine distinction.

[00:09:11] Speaker 00:
But let me explain what I understand about it.

[00:09:14] Speaker 00:
And that is that procurement, the contracting arm of the BIE

[00:09:21] Speaker 00:
was not part of the Division of Performance and Accountability, and yet it was the Acting Deputy Director of the Departments of Performance and Accountability who instructed a contracting officer who worked in procurement to remove Mr. Boo as the COTR.

[00:09:39] Speaker 04:
Who in your mind should have been the right person to make the instruction to tell this contracting officer what to do?

[00:09:47] Speaker 04:
As I understand it, it would have been... The President of the United States?

[00:09:51] Speaker 04:
who, if not the person who told the contracting officer to remove him, who should it have been?

[00:10:00] Speaker 00:
My understanding, Your Honor, is it should have been the director of the contracting office, who was a fellow in this case by the name of Jeff Senna.

[00:10:10] Speaker 00:
So Mr. Senna did not play a role in removing Mr. Boo as the contracting officer.

[00:10:18] Speaker 02:
Is there an argument you've made on appeal

[00:10:21] Speaker 02:
Or can you direct me to what you think your strongest argument is on appeal for why we should vacate that was actually made below?

[00:10:31] Speaker 02:
Because some of your arguments were not made below, and I understand your argument about they were implicitly decided, so somehow they're before us.

[00:10:39] Speaker 02:
But put those off to the side.

[00:10:41] Speaker 02:
If I don't agree with that, what argument did you make below that you're making to us on appeal that you think is your strongest case for why we should vacate?

[00:10:51] Speaker 00:
Strongest argument, I believe, Your Honor, is the one that we have been discussing.

[00:10:55] Speaker 00:
And that is that he was removed as the COTR based upon allegations, but no formal finding, that he had made an unauthorized commitment.

[00:11:09] Speaker 02:
But what is the evidence that his protected disclosure was a possible factor in that action?

[00:11:19] Speaker 00:
In that respect,

[00:11:21] Speaker 00:
The protected disclosure goes to the cat's paw theory.

[00:11:28] Speaker 00:
And I think the administrative law judge talked about that a little bit, but found that it did not apply.

[00:11:35] Speaker 00:
But it's our position, Your Honor, that the allegations being made by Marlene Walker, my client had made a protected disclosure regarding what he believed to be

[00:11:50] Speaker 00:
improper activity by the acting deputy director Stanley Holder.

[00:11:54] Speaker 00:
Stanley Holder and Marlene Walker worked together and were very close.

[00:11:58] Speaker 00:
And therefore, when Mr. Holder removed Mr. Boo and replaced him with Marlene Walker as the COTR, it is our position that by doing so, Mr. Holder was taking retaliatory action

[00:12:19] Speaker 00:
for disclosures that Mr. Boo had made.

[00:12:25] Speaker 00:
We also believe that Marlene Walker was taking retaliatory action against him by making these allegations of unauthorized commitment and telling him that he had been found essentially guilty already, even though there had been no official or formal finding on that point.

[00:12:46] Speaker 00:
But I see, Your Honor, that I'm into my

[00:12:49] Speaker 00:
rebuttal time.

[00:12:51] Speaker 00:
Just very briefly, I think the major issue though is, and whether the court adopts it is surely up to the court, but is this issue that Mr. Boo did find out at the trial that one of the reasons, at least we believe, that he was retaliated against was because he had assisted the deputy director, not the acting deputy director, but the actual deputy director in an OSC complaint that was brought

[00:13:17] Speaker 04:
Can he bring a whistleblower complaint based on that now?

[00:13:21] Speaker 00:
Excuse me, Your Honor.

[00:13:22] Speaker 04:
Can he bring a whistleblower complaint based on that charge now?

[00:13:27] Speaker 00:
I think that there might be some issues with respect to time bar, because it was raised in this case.

[00:13:34] Speaker 04:
There might also be an issue of- Raised in this case, what, by you in this brief?

[00:13:41] Speaker 00:
Actually, the factual scenario was raised, interestingly enough,

[00:13:47] Speaker 00:
by the agency at the trial.

[00:13:50] Speaker 00:
This was not something that Mr. Boo was aware of until the agency ratified.

[00:13:56] Speaker 04:
But we see cases all the time where a whistleblower goes in and makes a protected disclosure and doesn't have sort of everything in it.

[00:14:04] Speaker 04:
Maybe he gets told that he didn't really exhaust his remedy.

[00:14:08] Speaker 04:
Maybe he gets told later he didn't make a prima facie case and goes back and files another one.

[00:14:15] Speaker 00:
And again, I think that there's some issues with both time bar and whether or not it would be collaterally stopped as a result or risky to cut as a result of having been considered in a prior case.

[00:14:26] Speaker 00:
And that may depend totally on a ruling as well, Your Honor.

[00:14:30] Speaker 04:
So maybe you made a mistake by raising it.

[00:14:36] Speaker 00:
It's possible, Your Honor.

[00:14:38] Speaker 00:
All right.

[00:14:38] Speaker 02:
Well, let's save the rest of your time for rebuttal.

[00:14:40] Speaker 02:
Miss Kirschner?

[00:14:51] Speaker 03:
May it please the court.

[00:14:52] Speaker 01:
Ms.

[00:14:53] Speaker 01:
Kirchner, last week on the 27th of March, you filed a 28J letter.

[00:14:59] Speaker 03:
Yes, Your Honor.

[00:15:00] Speaker 01:
In it, you say, pursuant to 28J, we submit this supplemental authority.

[00:15:07] Speaker 01:
In his reply, petitioner says these three things.

[00:15:10] Speaker 01:
And then you say, parties by express or implied consent cannot confer a jurisdiction on the MSPB that it wouldn't otherwise have.

[00:15:19] Speaker 01:
a 2006 case, a 1973 case, and a 2011 case and a 2004 case.

[00:15:32] Speaker 01:
Now, you're aware that we have binding precedent that prohibits the use of a 28-J letter to bring supplemental argument, right?

[00:15:45] Speaker 03:
Excuse me?

[00:15:47] Speaker 01:
Are you familiar with

[00:15:49] Speaker 01:
How is that not a surreply argument to the reply rather than the presentation of new authority, which is what 28J provides?

[00:16:08] Speaker 03:
Your Honor, you're referring to the dates of the cases?

[00:16:12] Speaker 01:
Yes, I am.

[00:16:13] Speaker 01:
How is that new authority?

[00:16:20] Speaker 03:
I didn't interpret 28J as being restricted to only subsequent decisions that are issued by a court, Your Honor.

[00:16:31] Speaker 01:
I interpreted it... If pertinent and significant authorities come to a party's attention after the party's brief has been filed, were you aware of them before?

[00:16:43] Speaker 01:
Of course.

[00:16:44] Speaker 01:
Why didn't you file a request for a sir reply?

[00:16:49] Speaker 03:
Your Honor, if this is improper, I'm sorry.

[00:16:51] Speaker 03:
I apologize.

[00:16:52] Speaker 03:
I didn't interpret it as improper.

[00:16:54] Speaker 03:
Neither did any of my supervisors.

[00:16:59] Speaker 03:
We viewed 28J broadly as allowing us to cite the court to additional.

[00:17:07] Speaker 01:
How is it different than a surreply?

[00:17:08] Speaker 03:
Excuse me?

[00:17:09] Speaker 01:
How is what you filed different than a surreply?

[00:17:14] Speaker 03:
Your Honor, if I'm in error, I apologize.

[00:17:16] Speaker 01:
I'm bringing it to your attention and to the office's attention.

[00:17:20] Speaker 02:
Yes, Your Honor.

[00:17:21] Speaker 02:
Just so we're clear, I agree with Judge Wallach.

[00:17:24] Speaker 02:
This is a cert reply, and 28J absolutely doesn't authorize that, and our opinions in the past make that clear.

[00:17:31] Speaker 02:
So please do go back to the office and make sure they understand that there will be consequences if the government, who is such a repeat player, we expect them to know and follow the rules, tries to use 28J for the purposes of filing cert replies.

[00:17:44] Speaker 02:
You have more text.

[00:17:45] Speaker 02:
in the 28-J letter, then you do case names.

[00:17:48] Speaker 02:
Usually, we've attached the following case we think is relevant, and then there's a case.

[00:17:52] Speaker 02:
Here, you've got whole arguments replying to what's in the reply.

[00:17:55] Speaker 02:
So it's definitely improper, just so that there's no confusion at all.

[00:18:00] Speaker 03:
Yes, Your Honor.

[00:18:07] Speaker 01:
As we said... Is this case moat?

[00:18:12] Speaker 03:
I'm not in a position to say that it's moved, because in these whistleblower cases, petitioners often have a claim for compensatory damages, which might be pursued if the case was revanded.

[00:18:28] Speaker 03:
So there might be something.

[00:18:29] Speaker 03:
Well, they would often like to have a record corrected.

[00:18:32] Speaker 03:
Excuse me?

[00:18:33] Speaker 03:
Have a record corrected.

[00:18:35] Speaker 04:
We had one last month where someone had had some disciplinary action taken against them, and they said, we'd like to have that corrected.

[00:18:44] Speaker 03:
That's a possibility also, Your Honor.

[00:18:47] Speaker 03:
So I wasn't in a position to tell the court that this matter was moved.

[00:18:52] Speaker 03:
So we didn't make that assertion.

[00:18:55] Speaker 03:
And I'm not contending right now that the case is moved, because I don't have facts from the record that allow me to say that this matter

[00:19:05] Speaker 02:
Okay, so let me help direct your argument, which is everything that you say was waived because it wasn't raised to the board.

[00:19:15] Speaker 02:
As far as I'm concerned, it's not on the table.

[00:19:17] Speaker 02:
So why don't you just address his remaining arguments to the extent that the government has a response to them?

[00:19:23] Speaker 02:
Because you're, of course, absolutely correct that if an argument is a whole new basis

[00:19:28] Speaker 02:
and it wasn't raised before the board, that is not something we can consider on appeal.

[00:19:32] Speaker 02:
So I don't want you to waste your time, your limited time on those arguments, because you're right.

[00:19:38] Speaker 01:
I agree with that.

[00:19:40] Speaker 02:
So why don't you focus on the arguments that weren't waived, if that's OK.

[00:19:44] Speaker 02:
Does that help you focus your argument?

[00:19:45] Speaker 02:
Certainly.

[00:19:46] Speaker 03:
Yes, it does, Your Honor.

[00:19:47] Speaker 03:
OK, good.

[00:19:49] Speaker 03:
This was raised at the board and in his opening brief on appeal, and also the reply brief.

[00:19:56] Speaker 03:
contends that a remand is necessary because the board did not decide whether or not he had made an unauthorized commitment of government funds.

[00:20:09] Speaker 03:
What we pointed out in our brief is that this assertion that an allegation or charge that he made an unauthorized commitment of government funds was not raised with

[00:20:26] Speaker 03:
the Office of Special Counsel.

[00:20:28] Speaker 03:
And if you look at the complaint that he filed with the Office of Special Counsel, the court will not find that allegation in the complaint or the assertion that that allegation of making an unauthorized commitment of government funds was in reprisal for some protected activity.

[00:20:52] Speaker 03:
That's not in his complaint with the Office of Special Counsel.

[00:20:56] Speaker 03:
So the board had no jurisdiction to take up that.

[00:21:01] Speaker 04:
But the board didn't say that.

[00:21:03] Speaker 04:
That's the problem.

[00:21:05] Speaker 04:
You're saying just look at the fact.

[00:21:08] Speaker 04:
And you say, here's the allegation.

[00:21:10] Speaker 04:
We don't look at the complaint he filed with OSC.

[00:21:13] Speaker 04:
It's not in there.

[00:21:14] Speaker 04:
Right.

[00:21:15] Speaker 04:
Therefore, you would say he didn't exhaust.

[00:21:17] Speaker 03:
Correct.

[00:21:18] Speaker 04:
Or if he did exhaust, it wasn't insufficient, yada yada, right?

[00:21:23] Speaker 04:
Yes, Your Honor.

[00:21:24] Speaker 04:
Is there a statement to that effect in the ALJ's decision?

[00:21:28] Speaker 04:
No, there is not, Your Honor.

[00:21:29] Speaker 04:
Isn't that his complaint?

[00:21:30] Speaker 04:
Are you saying it's harmless error that there was not?

[00:21:35] Speaker 03:
No.

[00:21:35] Speaker 03:
We're saying further, not only is it not in the complaint, the issue of jurisdiction was litigated.

[00:21:42] Speaker 03:
And there were two decisions on jurisdiction, setting out

[00:21:46] Speaker 03:
what the board had the authority to decide.

[00:21:50] Speaker 03:
And this issue.

[00:21:51] Speaker 04:
Did the board say it didn't have jurisdiction to look at this unauthorized funds issue?

[00:21:57] Speaker 04:
No.

[00:21:58] Speaker 04:
That's what I'm trying to get at.

[00:21:59] Speaker 04:
His complaint is that there is an issue in here that he never put in play at the Office of Special Counsel.

[00:22:09] Speaker 04:
And yet he made the board was aware of it.

[00:22:14] Speaker 03:
When he litigated the issue of jurisdiction before the board, he told the board that Dr. Russell had made a comment that there was an appearance of an improper relationship between him and the contractor.

[00:22:32] Speaker 03:
That's what he told the board required the board needed to look at.

[00:22:38] Speaker 03:
The board made a finding on that contention

[00:22:42] Speaker 03:
And that would be in the record at appendix page 785.

[00:22:45] Speaker 03:
The board's finding was that Dr. Russell, having a thought that he engaged in an improper relationship with a contractor, that wasn't a personnel action.

[00:22:58] Speaker 03:
That's just the thoughts of Dr. Russell.

[00:23:02] Speaker 03:
It's not a personnel action.

[00:23:03] Speaker 03:
It didn't have any effect on his duties.

[00:23:06] Speaker 04:
No, but that's not related to the unauthorized

[00:23:09] Speaker 04:
Correct.

[00:23:10] Speaker 03:
Correct.

[00:23:11] Speaker 03:
That's why we say that that assertion was not raised with the Office of Special Counsel.

[00:23:18] Speaker 03:
And when jurisdiction was litigated, there was no finding that it came within the board's jurisdiction.

[00:23:25] Speaker 04:
How did you present the question of the improper expenditure of funds to the board?

[00:23:32] Speaker 03:
It came up because it was the government's

[00:23:38] Speaker 03:
contention that they were concerned that he was involved in a contract where he requested services, accepted services, and there were no funds on the contract.

[00:23:49] Speaker 03:
And then he was removed because of it.

[00:23:51] Speaker 04:
And did this come up in testimony?

[00:23:53] Speaker 03:
Yes.

[00:23:53] Speaker 03:
Yes, it's in testimony.

[00:23:55] Speaker 03:
It's all over the... Well, I understand.

[00:23:57] Speaker 04:
I mean, the issue is all we really talk about here today, but I think his concern is that he didn't get an answer on paper from the board.

[00:24:07] Speaker 04:
Right?

[00:24:08] Speaker 04:
Isn't that what he's saying?

[00:24:09] Speaker 04:
I don't have a piece of paper that I got from the board that told me that this business of the improper expenditure was of no effect.

[00:24:20] Speaker 03:
Well, what we've also said in our brief is that this charge of making an unauthorized commitment of government funds does not meet the criteria for being a personnel action under the Whistleblower Protection Act.

[00:24:36] Speaker 03:
Not only was it not raised with the Office of Special Counsel, but it didn't have any consequence when the finding was finally made.

[00:24:46] Speaker 04:
What do you mean by that?

[00:24:46] Speaker 04:
You mean if somebody comes in and says, my boss has been misusing federal money, that's not a basis for a whistleblower complaint?

[00:24:57] Speaker 03:
There has to be some personnel action taken.

[00:25:01] Speaker 03:
In this case, there was no personnel action

[00:25:05] Speaker 02:
taken against him as a result of... For example, you mean cancellation of the contracts had nothing to do with him.

[00:25:11] Speaker 02:
He wasn't even the COTR at the time they were canceled.

[00:25:14] Speaker 02:
So how could that be a personnel action against him, the non-renewal of the contracts?

[00:25:21] Speaker 03:
Your Honor, that indeed is a different question, but if you look at the timeline of these things, he's removed as a COTR much earlier before there's the finding

[00:25:32] Speaker 03:
of an unauthorized commitment.

[00:25:34] Speaker 03:
Those contracts end much earlier before there is a finding of an authorized... But I guess I was trying to... I wasn't trying to get you to run through the facts.

[00:25:44] Speaker 02:
I was just saying an example of something that he's alleging but that isn't a personnel action against him and thus can't be

[00:25:53] Speaker 02:
a basis for a WPA claim is the cancellation of these contracts.

[00:25:58] Speaker 03:
Correct, Your Honor.

[00:25:58] Speaker 02:
I'm just saying this is an example of one of the things he's alleging that just can't support his WPA claim because it isn't an action directed at him.

[00:26:08] Speaker 03:
Correct.

[00:26:08] Speaker 03:
Yes, Your Honor.

[00:26:09] Speaker 03:
And it didn't.

[00:26:11] Speaker 03:
In Your Honor's example, it didn't materially change his duties.

[00:26:15] Speaker 01:
Isn't the crux of your argument that his removal as contracting officer from the

[00:26:23] Speaker 01:
Charbonneau contract was made by individuals who had no knowledge of his protected activity.

[00:26:29] Speaker 03:
That is indeed what the board found and that sustains the board's finding.

[00:26:37] Speaker 03:
I think he's talking about... We're talking about two different things it seems to me.

[00:26:46] Speaker 03:
One is his removal as COTR

[00:26:49] Speaker 03:
That is perfectly sustained by the board's findings.

[00:26:54] Speaker 03:
Now he's saying that we need a remand because the board did not look at what's supposed to be a different act of reprisal.

[00:27:05] Speaker 03:
And that act of reprisal, according to his brief, is the finding that he made an unauthorized commitment of government funds.

[00:27:14] Speaker 03:
What we're saying is that didn't go to the Office of Special Counsel.

[00:27:17] Speaker 03:
If he wants to take it there today, he can take it there today.

[00:27:21] Speaker 03:
There's no statute of limitations.

[00:27:25] Speaker 03:
So he can go back to the Office of the Special Counsel with that allegation of reprisal, should he so choose.

[00:27:34] Speaker 03:
And what we also pointed out in our brief is there was a ruling on jurisdiction.

[00:27:40] Speaker 03:
There were no objections.

[00:27:42] Speaker 03:
When you file a whistleblower complaint, do you have to ask for some corrective action?

[00:27:49] Speaker 03:
I think for there to be standing, you have to be asking for something.

[00:27:55] Speaker 03:
You have to be asking either for compensatory damages or... So it's not enough for somebody to come in and say, I blew the whistle.

[00:28:04] Speaker 04:
They took this action against me.

[00:28:07] Speaker 04:
I'm blowing the whistle as a private attorney general.

[00:28:10] Speaker 04:
I want everybody to know what went on, but I'm not asking for anything for myself.

[00:28:15] Speaker 03:
It's hard to say that it seems like there would not be standing in that case, Your Honor.

[00:28:19] Speaker 03:
Because he's not really asking for anything, just a declaration that doesn't have any effect on it.

[00:28:25] Speaker 04:
He's asking for what the Whistleblower Protection Act exists to achieve, which is shining the light on wrongdoing in the government.

[00:28:36] Speaker 03:
Your Honor, I would contend that the Whistleblower Protection Act exists to correct wrongdoing and to give relief to the whistleblower of some sort.

[00:28:48] Speaker 03:
whether it's correction of his record, compensatory damages, a new job, something that alleviates his situation.

[00:28:58] Speaker 04:
Except if all he wanted was legal fees.

[00:29:03] Speaker 03:
They do ask for that, too, Your Honor.

[00:29:06] Speaker 04:
So that would be enough for the private attorney general, a good citizen who wasn't asking for anything for themselves, if they just said, make certain you pay my lawyers.

[00:29:15] Speaker 03:
I would not submit that.

[00:29:18] Speaker 03:
attorney fees is sufficient to give jurisdiction.

[00:29:22] Speaker 03:
But I don't think we're really faced with that here.

[00:29:24] Speaker 03:
As I said, the unauthorized commitment of government funds is a charge that was raised much later.

[00:29:32] Speaker 03:
It was not part of the jurisdictional rulings, and there was never any objection to the jurisdictional rulings.

[00:29:40] Speaker 03:
So in this case, the way we read his reply brief is that he's trying to get a remand

[00:29:47] Speaker 03:
on issues for which there never was any jurisdiction.

[00:29:52] Speaker 03:
And therefore, based on the cases that we've been citing, I hope I don't need to read the case sites into the record, Your Honor.

[00:30:03] Speaker 03:
We would submit that trial by implied consent doesn't make it.

[00:30:10] Speaker 03:
If there's no jurisdiction, there's no jurisdiction.

[00:30:14] Speaker 02:
Time is up, so we need to move on.

[00:30:16] Speaker 02:
Thank you, Ms.

[00:30:16] Speaker 02:
Kirchner.

[00:30:17] Speaker 02:
We understand your arguments.

[00:30:18] Speaker 03:
Can I just give Judge Wallach the answer to his question?

[00:30:23] Speaker 03:
Sure.

[00:30:24] Speaker 03:
Fire away.

[00:30:25] Speaker 03:
You had a question about certain exhibits.

[00:30:28] Speaker 03:
You could look at our brief at page 45.

[00:30:30] Speaker 03:
You'll find all the citations you wanted.

[00:30:34] Speaker 03:
Thank you, Your Honor.

[00:30:35] Speaker 02:
Thank you very much.

[00:30:36] Speaker 02:
OK, Mr. Kirk.

[00:30:37] Speaker 02:
You've used most of your time, but we'll restore, say, two minutes of rebuttal time.

[00:30:45] Speaker 00:
The court has asked the question of whether or not the issue of unauthorized commitment was raised at the hearing below.

[00:30:51] Speaker 00:
It absolutely was.

[00:30:53] Speaker 00:
In fact, at the record at pages 904 and 908, in the pre-hearing submissions, Mr. Boo did raise the issue that he had been charged with unauthorized

[00:31:05] Speaker 00:
commitments which affected his work ability and his role as a contracting officer representative.

[00:31:16] Speaker 00:
And those were not only raised as pre-hearing submissions, but there was significant evidence that was adduced at the trial.

[00:31:26] Speaker 00:
There was no objection by the government regarding that evidence.

[00:31:30] Speaker 00:
And therefore, it is our position that that was tried by consent.

[00:31:35] Speaker 00:
That was an issue that the board did have jurisdiction over, because under Section 5 U.S.C.

[00:31:42] Speaker 00:
2308, if somebody raises an issue of mismanagement of government funds, for example, that is considered a protected activity.

[00:31:58] Speaker 00:
And so the end results.

[00:32:05] Speaker 00:
if you will, is that the issue of an unauthorized commitment, which was one of the major things that Mr. Bu believed was a damage to his reputation and to his work ability, not to mention the fact that he had been removed as a contracting officer representative.

[00:32:24] Speaker 00:
The board had jurisdiction over it.

[00:32:26] Speaker 00:
The board did raise, or did hear evidence on the issue.

[00:32:32] Speaker 00:
The board failed to address it in any way.

[00:32:34] Speaker 00:
Thank you.

[00:32:35] Speaker 02:
Thank you, Mr. Dahl.

[00:32:36] Speaker 02:
We thank both counsel.

[00:32:37] Speaker 02:
The case is taken under submission.