[00:00:03] Speaker 02:
We have five cases on the calendar this morning.

[00:00:05] Speaker 02:
The government employee case, three patent cases, two from the PTAB and one from a district court and a veterans case.

[00:00:21] Speaker 02:
The PTAB cases and the veterans cases are being submitted on the briefs, will not be argued, and so we have

[00:00:29] Speaker 02:
Two cases for argument.

[00:00:33] Speaker 02:
Excuse me.

[00:00:34] Speaker 02:
A little congestion.

[00:00:36] Speaker 02:
First case is John Clough versus the Merit Systems Protection Board with the DOD as intervener, 2019-1108.

[00:00:44] Speaker 02:
Mr. Vogelsang.

[00:00:59] Speaker 05:
May it please the court, Michael Vogelsang for the appellant, John Klar.

[00:01:04] Speaker 05:
A couple threshold items I wanted to mention before getting into the primary issue, as this is an appeal on a jurisdictional decision from the Merit Systems Protection Board.

[00:01:14] Speaker 05:
So there are no factual assertions to be given substantial evidence in that this is a de novo review of the law of the administrative judge's decision.

[00:01:23] Speaker 05:
I'd also like to clarify that in this appeal, what Mr. Clarke is seeking is the right to discovery and a hearing on the merits in the American Citizens Protection Board, given that there wasn't a discovery or factual determinations done at the lower proceeding.

[00:01:39] Speaker 05:
I would like to narrow the primary issue for this case to whether or not a pre-security office decision is reviewable by the board.

[00:01:50] Speaker 05:
The AJ's, the administrative judge's, initial decision incorrectly ruled that Clark did not assert that he suffered from a personnel action, stating generally that Egan and its cases state that security clearance determinations cannot be reviewed by the court.

[00:02:06] Speaker 05:
The AJ did not address the fact that Mr. Klar was not challenging a decision from the security office or Dodd-Kaff, the DOD's centralized adjudication facility for clearances, but the events that transpired before that.

[00:02:21] Speaker 05:
If you will, think of the national security as behind an iron gate.

[00:02:24] Speaker 05:
Which event are you talking about?

[00:02:26] Speaker 05:
The affirmative reliance by Jason Smith and Robert Conforto to the security office of an interaction between John Clark and Jason Smith, as well as Mr. Conforto, I believe is in the July time period.

[00:02:41] Speaker 05:
there is a question there's a factual question as to how the prior disciplines were related to the Security office, excuse me.

[00:02:51] Speaker 03:
There was back to the event that you're talking about say it again what event

[00:02:58] Speaker 03:
Sure.

[00:03:00] Speaker 05:
Jason Smith, he was the former attorney for the DOD, and John Clarke had an interaction in Jason Smith's office.

[00:03:08] Speaker 05:
Jason Smith relayed to the security office within the DOD that he felt that Mr. Clarke was improper, belligerent, and the like.

[00:03:18] Speaker 05:
That event was two weeks, that event was relayed to the security office.

[00:03:23] Speaker 05:
Two weeks later was when Mr. Clarke received a notice, a statement of reasons that

[00:03:27] Speaker 05:
His clearance would be, on interim basis, tentatively removed.

[00:03:31] Speaker 03:
So your view is that event was a personnel action?

[00:03:36] Speaker 03:
Correct.

[00:03:37] Speaker 03:
An adverse personnel action?

[00:03:38] Speaker 03:
Correct.

[00:03:41] Speaker 03:
Exactly which section of 2302 do you find that event fits as an adverse personnel action?

[00:03:54] Speaker 03:
Which one are you standing on?

[00:03:57] Speaker 05:
It is the last one, I believe it's 11 if I'm not mistaken, that it is the significant change in duties, responsibilities, or working conditions.

[00:04:05] Speaker 05:
That that reliance impacted Mr. Klar's working conditions because of the events it triggered.

[00:04:12] Speaker 05:
So it was the precursor event that triggered the damage, which was the interim removal of Mr. Klar's clearance, or at least the tentative decision to suspend his clearance.

[00:04:28] Speaker 05:
I hate to use the term, the catch-all that is at the end of the list, which is the significant change in duties, responsibilities, and working conditions.

[00:04:36] Speaker 05:
And I believe it's Roman Rule 11, if I have it correctly.

[00:04:39] Speaker 05:
All right.

[00:04:40] Speaker 04:
And how do you think that that fits in that language?

[00:04:44] Speaker 05:
because the tentative removal or suspension of a clearance did impact both his working conditions for what he was going to do in his new position, because he could not apply for a higher level clearance that was required, as well as the emotional impact.

[00:05:04] Speaker 05:
Under the Whistleblower Protection Enhancements Act in 2012,

[00:05:07] Speaker 05:
Congress did confirm that compensatory damages are permissible now under the World Protection Act.

[00:05:13] Speaker 05:
And the act, the betrayal, if I may, of the reliance of this information of an employee who has a security clearance has an impact on their stability, their ability to feel safe in their workplace, because knowing if they have a disagreement with someone, they can refer them to the security office and who knows what will happen thereafter.

[00:05:34] Speaker 05:
So it is that cloud, if you will, over the employee's head that has its own impact on the working conditions, that Mr. Aclar was wondering what will happen because of this information that was related to the security office.

[00:06:00] Speaker 05:
So I will note in the administrative judge's decision

[00:06:03] Speaker 05:
She found, or she focused on the fact that a security clearance decision was made or not made, therefore Egan, therefore no jurisdiction.

[00:06:12] Speaker 05:
So the judge did not actually properly frame the claim that Mr. Klauber was bringing.

[00:06:17] Speaker 05:
So the appellant does proffer that the decision does not match the actual claims being brought.

[00:06:23] Speaker 05:
Inciting Egan

[00:06:25] Speaker 05:
What the judge also did not apply that I am asking the Federal Circuit to apply is the DC Circuit Court of Appeals decision in Radigan.

[00:06:33] Speaker 05:
Radigan does stand for the fact that decisions that are outside the security office, outside Dodd-Kaffer, in this case, DCMA security office, don't have the deference that Egan requires.

[00:06:45] Speaker 03:
I thought Radegan was limited to knowingly false cases.

[00:06:52] Speaker 03:
Am I mistaken?

[00:06:53] Speaker 03:
Did I misread that?

[00:06:54] Speaker 05:
That's correct.

[00:06:55] Speaker 05:
I will say, if I may, the phenomenally false reason for the statement would be a factual contention between the parties.

[00:07:02] Speaker 05:
Mr. Collard does assert that the information Jason Smith relayed was patently false and knowingly false.

[00:07:10] Speaker 05:
The parties, I believe, could agree that we dispute that fact, and so that would be something warranting for discovery.

[00:07:15] Speaker 03:
I see.

[00:07:16] Speaker 03:
You're alleging that is a fact.

[00:07:18] Speaker 03:
Correct.

[00:07:18] Speaker 03:
Which you think the AJ has to accept.

[00:07:23] Speaker 03:
At least for discovery purposes.

[00:07:25] Speaker 05:
For jurisdiction.

[00:07:26] Speaker 05:
For jurisdiction.

[00:07:27] Speaker 05:
Correct.

[00:07:28] Speaker 02:
And Radigan was a Title VII case.

[00:07:32] Speaker 05:
Correct.

[00:07:33] Speaker 04:
And why?

[00:07:35] Speaker 04:
So it didn't involve the question of whether this, what you call the reliance of information, is a personnel action under Title V 2302A.

[00:07:44] Speaker 04:
That is correct.

[00:07:46] Speaker 04:
And there's a broader, I don't know,

[00:07:50] Speaker 04:
Let's call it jurisdictional standard for Title VII.

[00:07:57] Speaker 05:
I would actually disagree.

[00:07:58] Speaker 05:
I believe the jurisdictional standard for the Whistle Protection Act is broader than Title VII.

[00:08:03] Speaker 05:
Title VII relates to materially adverse actions, and it is narrowly tailored to material actions.

[00:08:10] Speaker 05:
The Federal Circuit and the MSPB have consistently interpreted the Whistle Protection Act to be broadly interpreted.

[00:08:17] Speaker 05:
At its foundation, policy-wise, the WPA is not quite an employment statute.

[00:08:23] Speaker 05:
an encouragement for what's supposed to come forward.

[00:08:26] Speaker 05:
It is an anti-fraud statute.

[00:08:28] Speaker 04:
There's a discussion in Hess about what it calls the catch-all provision and whether what was at issue there fell within the language, I think at the time, duties and responsibilities, the working conditions.

[00:08:48] Speaker 04:
got added.

[00:08:49] Speaker 04:
They're also discussed in Hess as an amendment.

[00:08:53] Speaker 04:
But is there anything there that helps us decide one way or the other whether the transmission of information for purposes of a security review is a significant change in duties, responsibilities, or working conditions?

[00:09:14] Speaker 05:
I would say the precise facts in Mr. Clarke's case is relatively unique, and I would proffer for first instance for the circuit.

[00:09:22] Speaker 05:
The comparison I have for Hess for this case is that the Hess case did focus on decisions of security office personnel.

[00:09:32] Speaker 05:
It focused on decisions of personnel within the security office of the agency.

[00:09:37] Speaker 05:
So it is somewhat removed from the current case here, which is

[00:09:42] Speaker 05:
if I may, before that iron gate of national security.

[00:09:46] Speaker 04:
Right, but why would that affect the interpretation of the catch-all, which doesn't say anything particularly about who's making a decision with regard to security or not, I thought has said something to the effect that

[00:10:03] Speaker 04:
A qualification for the job is not a duty or responsibility of the job, which would then maybe leave you with your argument about working conditions and the emotional, I don't mean to be dismissive of it, but the emotional effect of having a potential clearance removal hanging over one's head.

[00:10:33] Speaker 05:
What I would say, my response to that would be HESS is prior to the Whistler Protection Enhancements Act.

[00:10:38] Speaker 05:
HESS was 12 years before the WPEA.

[00:10:41] Speaker 05:
So insofar as Congress expanded the damages permitted under the WPEA, then the definition of personnel action would.

[00:10:50] Speaker 04:
But that didn't change this catch-all provision, right?

[00:10:53] Speaker 04:
So the fact that you can get damages if one of these things

[00:10:57] Speaker 04:
occurs and the damages might be for emotional consequences doesn't necessarily make the emotional consequences a freestanding qualifier.

[00:11:08] Speaker 05:
That is correct, but I believe that issue has not been, I guess, addressed.

[00:11:12] Speaker 05:
That is what Mr. Clarke is asking for the panel to do, is that by opening for damages, considering damages, it does add to the personnel action definition

[00:11:23] Speaker 05:
what can be a personnel action.

[00:11:25] Speaker 05:
If it has to be something so finite, such as a quality, or doesn't qualify for qualifications or duties, those all have material economic type impacts that would fall under the previous iteration of the WPA.

[00:11:39] Speaker 05:
So I don't believe the definition of personnel action has caught up to what the WPA has expanded to reaffirm the broad scope of the Whistle Protection Act, both for protected conduct, personnel actions, and damages.

[00:11:52] Speaker 03:
I think that's a good point.

[00:12:03] Speaker 03:
approve of the Vatican concept?

[00:12:06] Speaker 05:
That is my request, yes.

[00:12:08] Speaker 05:
Pardon?

[00:12:08] Speaker 05:
That is my request, yes.

[00:12:10] Speaker 05:
Yes, OK.

[00:12:11] Speaker 05:
And I do note that I am in my rebuttal time, so I have no problem answering any other questions you have.

[00:12:16] Speaker 04:
You haven't talked about what I think is the second and secondary complaint that you have made to the effect that the job requirements

[00:12:29] Speaker 04:
the required security clearance was changed for the project management review position.

[00:12:43] Speaker 04:
And I guess I thought I remembered that at the end of the day, there simply was no evidence that there was a change.

[00:12:51] Speaker 04:
And not even kind of threshold jurisdictional level of evidence.

[00:12:55] Speaker 05:
Sure.

[00:12:56] Speaker 05:
I do have a response.

[00:12:57] Speaker 05:
I would just want to maintain some rebuttal time left.

[00:13:00] Speaker 05:
I know my yellow light has gone on.

[00:13:01] Speaker 05:
So to answer your question on that issue, yes, it's less that the position description changed.

[00:13:10] Speaker 05:
It was that the requirements of the position were different than when Mr. Clarke received it.

[00:13:17] Speaker 05:
that as advertised to Mr. Klar before accepting the position, there was no mentioning of having a TSCI or a top secret secure classified information access for that position.

[00:13:28] Speaker 05:
It wasn't until he got into the position that it was disclosed to him that his job duties would require 50% of the meetings he'd have to go to require top secret clearance that he didn't have.

[00:13:40] Speaker 05:
And so it was both a combination of the change in expectations as far as Mr. Klar understood them, or a failure to disclose those conditions if they were already known by the agency but not to Mr. Klar.

[00:13:55] Speaker 05:
That is a factual question that it was my intent, full disclosure, to explore in discovery should the judge have found jurisdiction.

[00:14:06] Speaker 02:
Council will say the rebuttal time.

[00:14:09] Speaker 02:
Mr. Morrow.

[00:14:10] Speaker 05:
Thank you, Your Honor.

[00:14:15] Speaker 03:
Morning, ma'am.

[00:14:15] Speaker 03:
Please record.

[00:14:16] Speaker 02:
You're going to take 10 minutes?

[00:14:18] Speaker 03:
Yes, 10 minutes.

[00:14:19] Speaker 02:
Please set it for 10 minutes.

[00:14:20] Speaker 03:
Mr. Morrow, what's wrong with the notion that in terms of stating a cause of action, he seems to have one, doesn't he?

[00:14:34] Speaker 01:
Our view is that he has not identified a personnel action within the board's jurisdiction.

[00:14:41] Speaker 03:
He just gave us grounds for that.

[00:14:47] Speaker 03:
You don't think that worked?

[00:14:49] Speaker 01:
It has to do with the relationship with the security clearance carve out from our jurisdiction.

[00:14:59] Speaker 01:
The personnel action that the reports, the allegedly false reports from the supervisors really only would have affected him if it led to an adverse decision, an adverse security clearance decision.

[00:15:18] Speaker 01:
It did not.

[00:15:19] Speaker 01:
At the end of the day, his security clearance was upheld.

[00:15:25] Speaker 01:
Similarly, during, I mean, relatedly during the time that

[00:15:29] Speaker 03:
He's not quarreling with the security clearance process, or even with the security clearance itself.

[00:15:39] Speaker 03:
He's simply saying, this could have an effect.

[00:15:43] Speaker 01:
But the only effect it could have would be it was reported to the security office.

[00:15:50] Speaker 01:
The security office evaluated him and determined that there's no problem.

[00:15:57] Speaker 01:
What other effect could it have?

[00:15:59] Speaker 01:
That's one point.

[00:16:00] Speaker 04:
What he described was for slightly over a year, from June of one year till August of the next, he was coming to work uncertain if his clearance was going to be withdrawn.

[00:16:15] Speaker 01:
Oh, that's true.

[00:16:16] Speaker 01:
And he also claims that there was a delay in his ability to attain the top secret clearance, which he needed for the new job,

[00:16:29] Speaker 01:
because of this as well.

[00:16:31] Speaker 01:
But both those things are the result of a security clearance determination, the determination to investigate the information that was received from the supervisors.

[00:16:45] Speaker 01:
So it all ties back to the security clearance aspect of this.

[00:16:51] Speaker 01:
You think Egan extends that broadly, is that what you're saying?

[00:16:55] Speaker 01:
Yes.

[00:16:56] Speaker 01:
And here is the other

[00:17:00] Speaker 03:
For example, how about if it doesn't extend quite that broadly, then what?

[00:17:05] Speaker 01:
Well, let's look at the Wilson case, which is your case that's most apposite to this.

[00:17:12] Speaker 01:
Wilson involved a claim relating to the initiation of a security clearance process like his, alleged false accusations.

[00:17:29] Speaker 01:
There was an investigation, and there was a decision against him.

[00:17:37] Speaker 01:
There was an attempt to bring an appeal just on the transmission of the information.

[00:17:42] Speaker 01:
And the court said, no, we'd look at this as a unity.

[00:17:46] Speaker 01:
We can't have a separate claim based simply on the false information.

[00:17:53] Speaker 01:
Here, we have to go with the final decision, which in that case was,

[00:17:59] Speaker 01:
was a revocation of a security clearance because they found the information trustworthy.

[00:18:06] Speaker 02:
Are we free to follow Ratigan or would we have to go in bank because of Wilson?

[00:18:12] Speaker 01:
I think Ratigan is inconsistent with Wilson because it brings up the

[00:18:22] Speaker 01:
Because basically, they've said, this is a unity, and you can't have this separate thing appealed.

[00:18:29] Speaker 01:
And then at the end, they did say, and by the way, if we were accepting it, which we're not, and they've already said they weren't going to, we don't think you have a, you don't meet the requirement

[00:18:49] Speaker 01:
that case, which is knowing falsehood.

[00:18:54] Speaker 02:
So you're saying that, number one, there's no personnel action.

[00:18:57] Speaker 01:
Right.

[00:18:58] Speaker 02:
And number two, even if there were, we would be bound by Wilson.

[00:19:03] Speaker 01:
Right.

[00:19:03] Speaker 01:
In other words, there's no personnel action until you get into the area of its effects with respect to security clearance matters.

[00:19:10] Speaker 01:
And independently of our statute under Egan, we can't review those things.

[00:19:18] Speaker 01:
How could we review, what would we do if we reviewed the alleged falsity that he's claiming that pertained to the reports?

[00:19:35] Speaker 01:
We would have to reach a position that's opposite to what the clearance decision was, which was you're OK to Mr. Carr.

[00:19:46] Speaker 01:
So that would be as inconsistent as the inconsistency rejected in Wilson.

[00:19:52] Speaker 01:
I think to follow Wilson, you could not add in the narrow exception

[00:20:02] Speaker 01:
that is provided in the Ratigan decision.

[00:20:09] Speaker 03:
Hypothetically, let's assume we distinguish Wilson away, which sometimes happens in sports.

[00:20:21] Speaker 03:
What is your view of Ratigan as a matter of basic legal approach to these issues?

[00:20:28] Speaker 03:
Do you have any problem with it?

[00:20:32] Speaker 01:
Problem with it probably is that the whole security system is partly based on a requirement that employees with classified information who have access to it or have security clearances are encouraged and really required to report

[00:20:58] Speaker 01:
instances that they see of someone who perhaps shouldn't have a security clearance.

[00:21:03] Speaker 01:
And it would have a chilling effect on them if they knew, among these employees, if they knew, well, we may be in court with someone quibbling over whether what we said was false and unknowingly false.

[00:21:17] Speaker 01:
So that's one reason for not going down that line, which is discussed in the dissent in Radigan.

[00:21:25] Speaker 04:
Can I ask you a question?

[00:21:27] Speaker 04:
Take this outside the security context.

[00:21:31] Speaker 04:
Is there case law, either from this court or the board, on whether a proposed removal by itself can be challenged through an individual right of action?

[00:21:45] Speaker 04:
which is to say is a proposed removal.

[00:21:48] Speaker 01:
In the civil service system, not in the security clearance area.

[00:21:51] Speaker 04:
That's right, yeah.

[00:21:52] Speaker 04:
Put it completely to one side.

[00:21:55] Speaker 04:
Anything about security.

[00:21:56] Speaker 04:
Can somebody say the proposed removal is a personnel action under

[00:22:05] Speaker 04:
say the catch-all, and it's having the chilling effect on me that while this is going on, I can't really apply for a

[00:22:19] Speaker 04:
better job and, you know, I'm... Well, you'd be claiming it was a form of retaliation if it were a whistleblower case.

[00:22:27] Speaker 04:
Well, there are a variety of wrongs that are covered by 2302.

[00:22:32] Speaker 01:
I'm not familiar with that as a personnel action under 2302A2.

[00:22:42] Speaker 01:
I don't believe it's a listing there as a proposed action.

[00:22:45] Speaker 04:
And you're not aware of case law, either board law or our law, that addresses that one way or the other?

[00:22:53] Speaker 01:
No, I'm not aware of that.

[00:22:58] Speaker 01:
The other point I wanted to make with respect to the position as procurement specialist, analyst, and his complaint that

[00:23:14] Speaker 01:
the higher security clearance was required.

[00:23:18] Speaker 01:
It wasn't amended to his position description, but with the other agencies that they look at and review, some of them have this higher clearance.

[00:23:33] Speaker 01:
So we certainly can't review that, whether they should have that higher clearance.

[00:23:38] Speaker 01:
And it probably he alleges I take it that the people who worked these same supervisors Conspired with these other agencies have this higher clearance, but I doubt that's true, but we're not in the factual area here of course but With respect to that There's just no basis for

[00:24:10] Speaker 01:
finding that that is not a security clearance matter that we can't review.

[00:24:14] Speaker 03:
The AJ opined that Clark could bring an action for enforcement.

[00:24:23] Speaker 01:
Yes.

[00:24:24] Speaker 01:
He says he's not bringing that in this case, but to correct the matter of his being led, yes, he could bring a petition for enforcement

[00:24:36] Speaker 01:
based on, say, that there was misrepresentation.

[00:24:42] Speaker 01:
He took this job as part of the agreement, of course.

[00:24:45] Speaker 01:
So he would have to claim that, well, they misled me because they didn't tell me I would need for some of the work a higher clearance.

[00:24:54] Speaker 01:
What we'd have to do is file a petition for enforcement and ask to have the validity of the agreement because he wasn't told of the material matter.

[00:25:05] Speaker 01:
But that would be a separate action and would not be within the jurisdiction of this case.

[00:25:10] Speaker 03:
What other remedies does someone in Mr. Clarke's position have?

[00:25:14] Speaker 03:
Can you think of any other way he could get a remedy?

[00:25:19] Speaker 01:
That's the only one I can think of with respect to that.

[00:25:23] Speaker 02:
Thank you, Mr. Morrow.

[00:25:25] Speaker 02:
Thank you.

[00:25:26] Speaker 02:
We'll hear from the Justice Department.

[00:25:33] Speaker 02:
Is it Ms.

[00:25:34] Speaker 02:
Koenig or Koenig?

[00:25:35] Speaker 00:
It's actually Kaynag.

[00:25:37] Speaker 02:
Kaynag.

[00:25:40] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:25:43] Speaker 00:
We agree with the arguments made by the respondent, MSPB.

[00:25:47] Speaker 00:
And we would just like to emphasize a few points or answer any questions that Your Honors may have.

[00:25:56] Speaker 00:
Just to follow up quickly on what Mr. Mora was just saying, I believe if Mr. Clark files a petition for enforcement of the settlement agreement,

[00:26:05] Speaker 00:
The validity of the settlement agreement would no longer be at issue.

[00:26:07] Speaker 00:
He could only use petition to enforce the settlement agreement.

[00:26:11] Speaker 00:
But if he didn't file a petition for review of the MSPB case dismissing the appeal because of the settlement agreement, he can no longer challenge the validity of the agreement itself.

[00:26:25] Speaker 04:
Do you have an answer to the question I asked about putting security aside is a proposed

[00:26:34] Speaker 04:
adverse action, like a removal or suspension or any number of denial or promotion or something like that, a personnel action under 2302A?

[00:26:45] Speaker 00:
Your Honor, I believe Mr. Amaro has probably seen many more personnel cases than I have.

[00:26:52] Speaker 00:
And I'm not aware of whether a proposed removal would be considered a personnel action.

[00:26:58] Speaker 00:
But here, the

[00:27:01] Speaker 00:
Again, Mr. Clark challenges the actual report of the information to the security office.

[00:27:07] Speaker 00:
And I think it's clear that there is no significant change in working conditions without the resulting security clearance determination.

[00:27:15] Speaker 00:
Whether it's proposed or actual, it is that security clearance determination that would constitute the alleged personnel action.

[00:27:26] Speaker 00:
Without it, all you have is

[00:27:29] Speaker 00:
a report of information that may or may not be accurate.

[00:27:33] Speaker 00:
And that simply just isn't a change in working conditions under 2302A2A.

[00:27:44] Speaker 00:
And to address Mr. Clarke's argument that there would be sort of a cloud hanging over him due to this alleged security clearance, I think the idea that

[00:27:58] Speaker 00:
that the court could review the security clearance determination because of the cloud is inconsistent even with the DC Circuit's opinion in Radigan, which discusses Executive Order 12.

[00:28:09] Speaker 03:
It's inconsistent with what?

[00:28:11] Speaker 03:
Could you speak just a little more slowly?

[00:28:13] Speaker 00:
Sorry, Your Honor.

[00:28:14] Speaker 00:
I believe it's inconsistent with Radigan's discussion of the Executive Order 12968, which the court's opinion went into great detail to discuss the Executive Order and how it was

[00:28:28] Speaker 00:
required and expected that if employees have any information relating to a potential security clearance issue with another employee, that they are expected to report it, and that you could, in fact, have a chilling effect if those decisions were to be able to be reviewed later.

[00:28:48] Speaker 00:
Following the Supreme Court's decision in Eagan, this court, the Federal Circuit, has addressed

[00:28:59] Speaker 00:
Egan in several following cases.

[00:29:03] Speaker 00:
And in each case, this court expanded the application of Egan.

[00:29:08] Speaker 00:
In Hess versus Department of State, the Federal Circuit applied Egan to whistleblower protection cases.

[00:29:16] Speaker 00:
And in Kaplan versus Conyers, again expanded, which was an en banc decision, again expanded Egan to apply to not just clearance determinations, but to any position that was sensitive.

[00:29:28] Speaker 00:
And then, again, most recently in Wilson, the Federal Circuit stated that even when a petitioner is challenging the initiation of the security clearance determination, that we still fall under Egan's application.

[00:29:45] Speaker 00:
And I think that here, Mr. Clark's allegations go directly to Wilson versus Department of Navy, the 2016 decision.

[00:29:57] Speaker 00:
Although he claims to be challenging solely the report of the information, again, it's only once that information leads to the initiation of an investigation that you have any personnel actions.

[00:30:08] Speaker 04:
Let me just see if I understand.

[00:30:10] Speaker 04:
He challenges only the report.

[00:30:13] Speaker 04:
He doesn't challenge the proposed clearance denial.

[00:30:17] Speaker 04:
The proposed clearance denial is an essential

[00:30:22] Speaker 04:
step in the kind of emotional and other adverse effect that he claims.

[00:30:28] Speaker 04:
And so he doesn't actually challenge that.

[00:30:30] Speaker 04:
And under Wilson, he couldn't.

[00:30:32] Speaker 00:
Is that?

[00:30:33] Speaker 04:
Yeah, my understanding, Your Honor, is he... You're looking like I've overstated some things.

[00:30:36] Speaker 04:
Tell me what.

[00:30:38] Speaker 00:
No, no.

[00:30:38] Speaker 00:
Just to clarify, I think that he's attempting to challenge only the report.

[00:30:43] Speaker 00:
But without the leading initiation, you don't have any personnel action.

[00:30:48] Speaker 00:
And when you start talking about the initiation of the investigation, you're squarely within this court's decision in Wilson, which declined to adopt the radical.

[00:30:58] Speaker 04:
Can I ask you one record question about the second piece, about which we've not discussed much about the classification change or not?

[00:31:07] Speaker 04:
Is there an allegation or evidence here that during his year

[00:31:12] Speaker 04:
or so in the job, that he was idle for significant portions of the work time?

[00:31:22] Speaker 04:
Because there were some projects he couldn't work on because he didn't have the requisite clearance.

[00:31:26] Speaker 04:
Did that mean that he was two days a week or something, he was sitting around doing nothing, or was he otherwise fully engaged on other projects?

[00:31:34] Speaker 04:
And we may not know.

[00:31:36] Speaker 00:
There's no allegation in the record that I'm aware of that he has claimed that he was idle for periods of time.

[00:31:42] Speaker 00:
He does make an allegation that he might have received an outstanding versus fully successful in his performance rating.

[00:31:50] Speaker 00:
But the performance rating is in the record at appendix pages 381 and 382.

[00:31:55] Speaker 00:
And you can see from the performance rating explanation that it does not mention the security clearance, nor does it mention the number of projects that Mr. Clark worked on as being a negative, having a negative effect on his performance rating.

[00:32:11] Speaker 02:
Thank you, counsel.

[00:32:12] Speaker 00:
Thank you.

[00:32:13] Speaker 02:
Mr. Vogelsang has a little rebuttal time left.

[00:32:22] Speaker 05:
I am certain you have more questions, but if I may address a few points that were raised by both agencies.

[00:32:29] Speaker 05:
First, I want to address what I see as a cyclical argument about the personnel action, that the agencies seem to simultaneously state there is no personnel action outside the security client's determination.

[00:32:42] Speaker 05:
But to get to the security client's determination, you have to apply EGAN.

[00:32:46] Speaker 05:
So there is a cyclical argument, or chicken and the egg, that does leave Mr. Klar without a remedy.

[00:32:52] Speaker 05:
And that is why Mr. Klar asked for the application of Radegan.

[00:32:57] Speaker 05:
This goes to personnel with security clearances.

[00:33:02] Speaker 05:
They are the employees of the federal government who have the most access to information to the blow of the whistle on.

[00:33:09] Speaker 05:
They're also employees with the least amount of rights.

[00:33:12] Speaker 05:
Applying Egan and applying down the path that agencies would argue

[00:33:17] Speaker 05:
a supervisor could not like the color of your tie, refer you to the security office, and there's nothing you can do about it.

[00:33:24] Speaker 05:
So there has to be some determination as to before you get into that iron gate of national security that the employee has a remedy, other than there are remedy lists, which is what Radigan attempts to correct in the Title VII realm.

[00:33:38] Speaker 03:
What do you think of the enforcement of the agreement remedy?

[00:33:44] Speaker 03:
And why don't you go that way?

[00:33:47] Speaker 05:
For the enforcement of the agreement, I have two responses.

[00:33:50] Speaker 05:
One, I'm not aware of any case law that, one, an employee must make a binary choice or preclusionary choice between a breach of contract enforcement versus an IRA appeal and whistleblowing.

[00:34:03] Speaker 05:
To do that would be contractually waiving your statutory rights, which most of us would know you can't do.

[00:34:08] Speaker 03:
No lawyer has to make a choice unless he wants to pick a remedy that works.

[00:34:11] Speaker 05:
Well, correct.

[00:34:12] Speaker 05:
But I mean, there's nothing in the agreement that says he's waived any future claims.

[00:34:16] Speaker 05:
If anything, Mr. Clarke chose a more stringent route, which is I have to prove an IRA whistleblowing appeal, which I have the burden of proof on, rather than an enforcement agreement, which the agency has the burden.

[00:34:31] Speaker 05:
I'm not aware of any statute or rule that requires an employee to pick one avenue versus the other such as any kind of waiver.

[00:34:38] Speaker 04:
What would be the available remedies in an enforcement action?

[00:34:44] Speaker 04:
Retrospective monetary relief, yes or no?

[00:34:47] Speaker 05:
Remedies generally in the MSPB, to my understanding, is there would be equitable.

[00:34:52] Speaker 05:
So for example, if the agency were to breach the agreement, then the possibility would be the judge would have to go back to make a decision on the merits, because the case would be reactivated.

[00:35:03] Speaker 05:
If there were damages associated with the breach I do believe monetary damages are available but my understanding in my practice with most administrator forums most relief is equitable that it is the reinitiation of the litigation and sort of making the agreement go away I Do have a couple more points.

[00:35:21] Speaker 05:
I am a minute over so I will if I can try to make one more brief point sure I will pick one pick one that works sure I

[00:35:32] Speaker 05:
I will state that the Wilson case seems to be the permanent case that both agencies rely upon.

[00:35:39] Speaker 05:
And Wilson is not applicable to this particular case.

[00:35:43] Speaker 05:
Wilson focuses on an action initiated by individuals within the security office.

[00:35:50] Speaker 05:
The intervener, DOJ, actually admits that Clarke's case is on a quote, one more step removed, unquote, from what is in Wilson.

[00:35:59] Speaker 05:
I proffer that one step.

[00:36:01] Speaker 05:
outside the iron gate of national security is an important step.

[00:36:05] Speaker 05:
And that's the step that Radegan asked us to take forward to provide a remedy.

[00:36:09] Speaker 03:
So you don't think Wilson is inconsistent with Radegan?

[00:36:13] Speaker 05:
Correct.

[00:36:14] Speaker 05:
I believe Wilson would be consistent with Radegan insofar as

[00:36:18] Speaker 05:
The timeline, if you will, for Wilson starts inside national security within the security office.

[00:36:24] Speaker 05:
Clarke's removal provides the application of Radigan without contradicting Wilson.

[00:36:30] Speaker 05:
And I'll finish on that point, unless there are any other questions from the bridge.

[00:36:33] Speaker 02:
Thank you, counsel.

[00:36:34] Speaker 02:
The case is submitted.

[00:36:35] Speaker 05:
Thank you for your time.

[00:36:37] Speaker 05:
Any extra time?