[00:00:03] Speaker 02:
We have four argued cases this morning.

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The first is number 18-2171, Sanchez versus DBA, Ms.

[00:00:13] Speaker 02:
Mercado.

[00:00:19] Speaker 00:
Good morning.

[00:00:20] Speaker 00:
May I please report?

[00:00:22] Speaker 00:
Attorney Margarita Mercado on behalf of petitioner Jose M. Sanchez.

[00:00:26] Speaker 00:
I would like to structure my argument by addressing our two main contentions in appeal.

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First, our challenge to the manner in which the judge, before the Merit System Protection Board, closed the record, despite the fact that discovery had been undertaken with permission and authorization of the judge and to her knowledge about depositions and documentary evidence that the agency had produced to petitioner.

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The record was closed and no opportunity was given to petitioner to file the discovery that had been uncovered for the record or to argue his case in light of the discovery.

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Secondly, I will argue the merits of the final decision by the board, which held that the agency did not reach the settlement agreement that had been executed between the parties by which essential terms and conditions

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of petitioners tour of duty with the agency as a position were set.

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Do you dispute the general proposition that a term like this would expire after a reasonable time?

[00:01:35] Speaker 00:
Yes.

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We dispute it, firstly, because it was not argued in the agency response that there was a reasonable amount of time of compliance with the settlement agreement.

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Therefore, when the judge issued the decision on the basis of reasonable compliance, it was a matter that was not placed before in the pleadings.

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That wasn't my question.

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My question is, do you agree that in a contract of this sort,

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that this kind of term about his work hours and his compensation for commuting would expire after a reasonable time.

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Given the text of the settlement agreement that is found in Appendix 48, I would dispute that it was subject to a reasonable amount of time.

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So in your view, it continues forever, as long as he's for life, as long as he works.

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As long as what the parties agreed in Section 2 of the settlement agreement is that he would have the compressed work schedule

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while working at the Ponce Outpatient Clinic.

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While he was maintaining that position, if he was moved to the San Juan facility, the main facility, which was where he was working in 2001 when he was transferred due to the agreement, then that would be a different arrangement because he would be in San Juan.

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But the agreement clearly subjected his

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his tour of duty and his compressed work schedule to the fact that he will be in Ponce.

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So there was a clear term of duration while he was there.

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He's still working in the Ponce outpatient clinic.

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He still lives in San Juan, some 70 road miles away from Ponce.

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So the conditions of the settlement agreement and the terms and conditions are still present and should be honored.

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And it is not subject to reasonable honor.

[00:03:16] Speaker 01:
Let me see if I understand your argument.

[00:03:19] Speaker 01:
It sounds like in a contract where no

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the reason for the contract.

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So that, for example, if you had a contract that called for changing the building that they were working in, which was obviously something that could be done in a short period of time, a reasonable time would be implied.

[00:03:53] Speaker 01:
But you're suggesting that in a contract such as this,

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a settlement agreement such as this, as long as he is at Ponzi, if I remember right, then they are obligated to honor the terms of that settlement agreement.

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Is that your argument?

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Correct.

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That was what was agreed.

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And it's specifically stated in the text of the agreement.

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So it wasn't only the intention.

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Wait.

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What page is the text of the agreement at?

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It's at appendix 48.

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And it's section 1 and 2.

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48.

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Section 2, which is related to Section 1.

[00:04:38] Speaker 01:
There is nothing in that agreement that I could find that set a time one way or the other.

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Is that right?

[00:04:44] Speaker 00:
In terms, if your honor is asking about years or months, that wasn't stated.

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But that wasn't the nature or the purpose of the agreement.

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The purpose was that while he would be transferred to Ponce, he would have this work schedule in consideration.

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that he was transferred as an agreement because he filed an action for reprisal due to whistleblower activity that he had engaged in.

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And they agreed that he would no longer work in San Juan where he was stationed for years, and he would now work in an outpatient clinic in Ponce.

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Since the agreement was reached due to his protected activity, and he was still living in San Juan, that was an essential term or condition of this agreement.

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And it was stated in the text in Section 2.

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The idea was he didn't have to move his home, Ponzi.

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He could drive the three hours back and forth.

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Yes, that was the agreement.

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And it's stated in Section 2.

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So I agree with Your Honors that there isn't a traditional term saying this would last 15 years, five days, or 10 months.

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But the duration was tied intrinsically to the fact that he would be in Ponce.

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Is there any relationship at all between the whistleblowing activity

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and this settlement agreement, the part where he's going to be transferred to the remote location.

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Is there any relationship?

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Yes, his whistleblower activity created an environment that didn't conduce itself for him to still work in San Juan.

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So part of the agreement was that we moved with the facility in Ponce to work outside the environment where he made his whistleblower claims and were investigated.

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And he suffered reprisals due, or that was his claim in the prior board proceedings, that he suffered reprisal due to his protected activity.

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So yes, the essential term was that he would be moved to Ponce so that he could still work in the agency because he couldn't work in the environment in San Juan.

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And then the travel time and the compressed work schedule was agreed upon so that he could move to Ponce.

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Is there anything in the record below at all maybe submitted by the government about how the environment in San Juan was no longer problematic for him?

[00:07:12] Speaker 00:
In the first pages of the appendix, I have it here, but it's the first pages of the appendix.

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It's the documents of the prior board proceeding and the agency's response, his prior grievance with the board and letters exchanged between him and his supervisor way back in 1999 and 2000.

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that then that was the basis for the prior proceeding.

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So the judge could find the context of how that prior procedure developed.

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Yes.

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So the retaliation was by his then supervisor?

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He made a whistleblower claim that wasn't proper.

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Answer my question.

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Was the alleged retaliation by his then supervisor?

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Supervisors.

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And there was a hostile work environment with residents in the San Juan facility that

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that weren't respectful to him, and that led for him to, he made claims regarding residents' behaviors under his supervision, and that his claim in the prior board proceeding, that all those claims that he made requesting investigations regarding supervisors and residents in the San Juan hospital.

[00:08:21] Speaker 02:
Are those, does the record show anything about whether those people are still in San Juan?

[00:08:26] Speaker 00:
No, the record doesn't show some.

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I wouldn't venture to give you names of the same persons that could be there.

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But the agency has never offered

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for him to transfer to San Juan because his schedule was just changed without consulting him and the record does show that.

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That in 2017, the agency unilaterally notified him that he had to work, that the schedule was no longer in place and no interim accommodation were discussed with him to maybe explore the possibility of him now, years later, moving to San Juan.

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And that is part of our argument of the unreasonable and arbitrary manner in which the agency changed

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history of duty in breach of what had been agreed upon in 2001.

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So you wouldn't suggest that there's anything improper about them moving him back to San Juan?

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That wouldn't be a violation of the agreement?

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And if the parties would have to voluntarily agree, maybe a settlement along those lines.

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If they did it unilaterally and moved him back to San Juan, would that be a violation of the agreement?

[00:09:32] Speaker 00:
It wouldn't be a violation of the agreement because the agreement stated that while in Ponce, he would have the compressed work schedule in attention to the fact that he would be traveling.

[00:09:40] Speaker 02:
It would not be a violation of the agreement?

[00:09:43] Speaker 00:
It wouldn't be a violation of the agreement.

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It would or would not?

[00:09:45] Speaker 00:
It wouldn't.

[00:09:45] Speaker 01:
It would.

[00:09:46] Speaker 00:
It wouldn't.

[00:09:46] Speaker 01:
Yes.

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But my contention is that.

[00:09:49] Speaker 01:
Let me ask you a question.

[00:09:52] Speaker 01:
In the July 24, 2017 letter from the Department of Veterans Affairs to Dr. Sanchez, it says, in an effort to ensure that all VA resources are appropriately maximized and our veterans

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or afforded availability of services, we have determined that we're canceling the settlement agreement or we're changing it the way we want it.

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Do you have any explanation as to what actually those statements are meaningless?

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Do you have any explanation or do you know why this suddenly happened?

[00:10:35] Speaker 00:
When it happened in July 2017, my petitioner had not been given any explanation as to whether his performance, his work schedule had affected

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per patient services or whether additional services were suddenly needed.

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That was part of the evidence that was confirmed during discovery.

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But as the record shows, the petitioner was not advised of any issues regarding patient access to services, et cetera.

[00:11:01] Speaker 02:
So it really blindsided him.

[00:11:04] Speaker 02:
So why is that relevant?

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If, in fact, we were to say, yes, the agreement could be terminated in a reasonable period of time,

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and that 16 years was a reasonable period of time, what difference does it make whether the claim of efficiency or need for additional work hours was correct or not?

[00:11:24] Speaker 02:
I mean, the term just expires because a reasonable period of time is over with and it doesn't make any difference why the VA has decided to do it this way.

[00:11:35] Speaker 00:
Because the reasonable analysis needs to look at the attendant circumstances.

[00:11:40] Speaker 02:
And if they were not looked upon, the harm... Wait, wait, wait.

[00:11:45] Speaker 02:
What case says that?

[00:11:46] Speaker 00:
Even the same, it was cited in the same decision.

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The judge even stated that evaluating all of the attendance circumstances, and it cited the case of Parkman v. US.

[00:11:59] Speaker 04:
That's a board decision, right?

[00:12:01] Speaker 00:
A board decision, yes.

[00:12:02] Speaker 04:
So the board has law that says that where a settlement agreement is silent as the time or duration, you can have

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a reasonable time under the circumstances is presumed.

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That's the law you're relying on?

[00:12:17] Speaker 00:
That's decided by the judge.

[00:12:19] Speaker 04:
But what law are you relying on?

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I'm relying on the basic tenet, then when the agreement is clear as to its purpose and duration.

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And in this case, it is clear that the duration is tied

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to his tenure in the Ponce Outpatient Clinic.

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The fact that he has been providing diligent services for 16 plus years is irrelevant because the parties agree that while he remain in Ponce, he would have this schedule.

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He was notified that he would now work in San Juan, where he lives.

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Then the three-hour travel time and the compressed work schedule did not have their purpose.

[00:12:59] Speaker 01:
What were you looking for in your discovery effort?

[00:13:02] Speaker 01:
What did you think you would turn up in discovery that would help decide this case?

[00:13:09] Speaker 00:
As Your Honors should have seen in the response by the agency, they didn't argue reasonableness of the compliance

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for 16 years.

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They relied on similar arguments as Your Honor read from the letter terminating the agreement.

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They relied on allegations of services and need of additional services.

[00:13:32] Speaker 04:
What were you looking for?

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I think the question is, what were you hoping to get from the discovery?

[00:13:36] Speaker 00:
We were hoping to get corroboration information as to whether that was a valid or real reason and not something masking discrimination or other improper means.

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And during discovery, we uncovered that evidence, contrary to their claims, that additional services were needed.

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And importantly, their claim- Did you find any evidence, just evidence that undermined the government's contention

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that he wasn't able to perform the services.

[00:14:08] Speaker 00:
Correct.

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Productivity rates were not considered when the agreement was terminated.

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And we found evidence corroborating that his productivity rates were up to par and that no analysis was made by the agency regarding productivity in Ponce when they decided to overturn the agreement on the basis of a need of additional services.

[00:14:32] Speaker 00:
We did find evidence to refute that.

[00:14:34] Speaker 04:
Did the administrative judge consider or discuss your claim that the time period should be tied to his location in Ponce?

[00:14:46] Speaker 00:
The judge did not rule upon that or give considered analysis as to the agreement.

[00:14:54] Speaker 04:
As to that specific argument.

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Your argument is that you agree with the board's law.

[00:15:02] Speaker 04:
That is that it's not an unlimited amount of time, but you're saying

[00:15:06] Speaker 04:
It is a time that is limited to the time that he's located in that place.

[00:15:12] Speaker 00:
The time was set in the agreement tied to his tenure in Ponce.

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He has been in Ponce for 16 years.

[00:15:18] Speaker 00:
If he's kept in Ponce, the agreement stands regarding his compressed work schedule.

[00:15:23] Speaker 02:
But you're also saying that they can't transfer him to San Juan, right?

[00:15:28] Speaker 00:
Yeah, it wouldn't be a violation of Section 1.

[00:15:31] Speaker 00:
It would not be.

[00:15:35] Speaker 00:
Wait, wait, wait.

[00:15:39] Speaker 02:
Don't interrupt.

[00:15:41] Speaker 02:
You've given two different answers to this question several times.

[00:15:45] Speaker 02:
If they transferred him

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to San Juan, was that permissible under the settlement agreement?

[00:15:52] Speaker 01:
Yes.

[00:15:53] Speaker 01:
You assume for the purpose of that question that he objects to going, but they say you got to go back to San Juan.

[00:16:02] Speaker 01:
Question.

[00:16:04] Speaker 01:
Would that be a violation of the agreement?

[00:16:07] Speaker 00:
Of Section 1 and 2, it would not be.

[00:16:10] Speaker 00:
And that was my original answer.

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Maybe I misspoke or you didn't understand.

[00:16:14] Speaker 00:
But it wouldn't be a violation of section one or two of the agreement.

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It could be a separate employment violation in the manner that the agency would do it, but this is speculative.

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But section one and two of the agreement state that he would be reassigned to Ponce and that while in Ponce, he would have the compressed work schedule.

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And that's the claim that is before this court.

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And I respectfully posit that the agreement is clear as to the fact that he had to

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be maintaining that compressed work schedule when in Ponzi that it couldn't be overturned.

[00:16:48] Speaker 01:
So your argument is as long as he's at Ponzi in accordance with the agreement, they have to give him this work schedule, but if they transferred him back to San Juan,

[00:17:00] Speaker 01:
then that might be a different problem.

[00:17:02] Speaker 00:
It could be a separate employment violations, but not Section 1 and 2 of the addiction.

[00:17:07] Speaker 02:
Why a separate employment violation?

[00:17:08] Speaker 00:
Because it's speculative, or it didn't happen.

[00:17:13] Speaker 00:
But it depends on the reasons why he would be transferred to San Juan.

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So I would have to see the reasons why he would be transferred.

[00:17:19] Speaker 00:
But it wouldn't be the violation of Section 1 and 2 tying his compressed work schedule to his presence in Ponce.

[00:17:29] Speaker 02:
If they did it because they needed his work in San Juan, they could transfer him back to San Juan and not give him the compressed work schedule.

[00:17:41] Speaker 00:
Well, that would mean we would have to analyze the reasons why he would be transferred to Ponce.

[00:17:46] Speaker 02:
I gave you the reason.

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They needed his services in San Juan.

[00:17:50] Speaker 00:
It could be a violation of Section 1 but not of Section 2.

[00:17:53] Speaker 00:
Section 1 is the transfer to Ponce, but Section 2 is the compressed work schedule.

[00:17:58] Speaker 00:
So in San Juan, the compressed work schedule wouldn't be in place.

[00:18:02] Speaker 02:
It wouldn't be a... So now you seem to be saying if they transferred it back to San Juan, it would be a violation of section one.

[00:18:07] Speaker 00:
It could be.

[00:18:08] Speaker 00:
It could be, depending on the reasons why.

[00:18:11] Speaker 02:
What do you mean, depending on the reason?

[00:18:12] Speaker 00:
Because we would have to analyze whether the environment that led him, that led to the settlement agreement was still in place in San Juan.

[00:18:21] Speaker 00:
And it would be part of a settlement with the agency that it could be possible.

[00:18:26] Speaker 01:
So your argument, if I understand it, is that it's possible that he could be transferred back to San Juan if they had a good reason for it.

[00:18:36] Speaker 01:
And that transfer would be consistent with his circumstances

[00:18:43] Speaker 01:
And if that were true, if it was an OK transfer, then the compressed schedule would no longer be applicable.

[00:18:51] Speaker 04:
Yes, it wouldn't be applicable under Section 2, yes.

[00:18:54] Speaker 04:
Can I talk to you a little bit about the discovery issue?

[00:18:59] Speaker 04:
So I understand that the administrative judge didn't give a date certain on which discovery would end.

[00:19:04] Speaker 04:
However, in March and at other times, she asked the parties to identify if they were going to be continuing to need discovery.

[00:19:14] Speaker 04:
Then in April, sent another letter asking for identification of whether anyone would need more time for discovery, and there was no response at all.

[00:19:25] Speaker 04:
I mean, why is that not reasonable for her to assume, given her practice of sending letters and saying, you need to keep me informed?

[00:19:32] Speaker 04:
She let the parties know that she needed to make a decision within so much time.

[00:19:36] Speaker 04:
Why wasn't that?

[00:19:39] Speaker 04:
She was allowing the discovery.

[00:19:41] Speaker 04:
Instead of giving a date certain, she kept on moving the date so that you could take your discovery.

[00:19:47] Speaker 04:
And when she then asked again to know whether further discovery was required before the end of April, there was no response.

[00:19:54] Speaker 04:
Why isn't what she did reasonable?

[00:19:56] Speaker 00:
Because she didn't take into consideration that the delays in the discovery weren't imputable to petitioner, the court confined close to six motions in the appendix from pages 205 to 241 where petitioner was the one advising the judge.

[00:20:14] Speaker 00:
that the agency had not complied with discovery, was requesting additional time to produce evidence.

[00:20:20] Speaker 04:
So it doesn't matter that there was no response to her inquiry in April?

[00:20:23] Speaker 00:
Well, she didn't take into consideration that it was the agency who did not produce particularly the witness that was going to be deposed in April.

[00:20:32] Speaker 00:
And she didn't take into consideration

[00:20:34] Speaker 00:
that discovery was in the record, was uncovered during proceedings, and she didn't allow petitioners to use that discovery, even the one that had been uncovered prior.

[00:20:45] Speaker 04:
Is there something that prohibited you from providing that information to the court earlier in time, the information that you had already gathered from discovery?

[00:20:54] Speaker 00:
Yes, the board rules don't allow parties to file evidence for the record while discovery is pending.

[00:21:01] Speaker 00:
What the procedures provide for is that discovery would be used for the party to present its case.

[00:21:08] Speaker 00:
So when discovery is concluded, then the party on their board rules should have an opportunity to file it for the record in a final pleading or to move the court under even the provisions for enforcement of settlement agreements to move the court for the reasons why she should exercise discretion for a hearing.

[00:21:28] Speaker 00:
But here, the record was closed.

[00:21:30] Speaker 00:
No date for discovery was set.

[00:21:33] Speaker 00:
No date for closing the record was set.

[00:21:35] Speaker 00:
And no advisement was issued to the parties

[00:21:38] Speaker 00:
that the record could close and that the case would be submitted without any further filings from the parties.

[00:21:46] Speaker 00:
And the purpose of discovery that was allowed under the rules under Section 12.1.71 and 72 is that the parties engage in discovery to present their case.

[00:21:56] Speaker 00:
So it would be

[00:21:59] Speaker 00:
If you don't have the ability to file a final pleading with the evidence uncovered during discovery, then the discovery had no reason.

[00:22:08] Speaker 04:
It was granted, but... Well, sometimes the discovery doesn't provide relevant information.

[00:22:13] Speaker 00:
But she didn't allow the parties to express themselves as to whether a final pleading was necessary or a hearing.

[00:22:20] Speaker 00:
And these proceedings for enforcements do allow for a hearing.

[00:22:23] Speaker 04:
But what of the fact that she asked, you know, her April letter was not responded to?

[00:22:29] Speaker 04:
I mean, what about that?

[00:22:34] Speaker 04:
Do you think that she should have given the parties an opportunity

[00:22:38] Speaker 04:
afterwards when there was an explanation that the government hadn't yet provided the discovery request?

[00:22:44] Speaker 00:
Correct.

[00:22:45] Speaker 00:
Because we weren't advised that the record would close, including the agency acted under the assumption below during discovery that the discovery had not ended.

[00:22:55] Speaker 00:
In fact, I asked for dates during April for the final deposition, and the agency did not provide those and provided a date in late May to produce the witness for deposition.

[00:23:05] Speaker 00:
So the agency below acted under the understanding that Discovery had not been closed, that the notice, it is a notice, it isn't an order.

[00:23:13] Speaker 00:
But it was styled as a notice, the April 11th notice.

[00:23:18] Speaker 00:
The agency below acted under the assumption that Discovery could be conducted in May.

[00:23:23] Speaker 00:
Now they argue that it was clear that it couldn't, or they suggest that.

[00:23:27] Speaker 00:
But below, the agency protracted producing the agency.

[00:23:31] Speaker 00:
the witness and only produced the witness in late May.

[00:23:37] Speaker 00:
So both parties were under the assumption that the discovery has not been closed in a fixed date.

[00:23:44] Speaker 02:
I think we're out of time.

[00:23:47] Speaker 02:
We'll give you two minutes.

[00:24:00] Speaker 03:
Thank you, Your Honor, and may it please the court.

[00:24:03] Speaker 03:
I'll begin by going back to a question that Judge Plager asked a while ago, which was, is there anything in the record that indicates why the agency altered Dr. Sanchez's schedule at the time that it did?

[00:24:17] Speaker 03:
And yes, there is.

[00:24:18] Speaker 03:
That's in the declaration that the agency filed in response to the petition for enforcement, which is at page

[00:24:30] Speaker 03:
Appendix 122 and 123, it's on the second page of the declaration.

[00:24:36] Speaker 04:
And the declarant who was Dr. Suarez, the head of the- Do you remember correctly that the declarant is the gentleman who they were seeking the deposition of and they weren't able to get?

[00:24:48] Speaker 03:
That's right, Your Honor.

[00:24:49] Speaker 03:
The agency during written discovery identified two individuals who made the decision to change Dr. Sanchez's schedule, Dr. Miranda and Dr. Suarez.

[00:24:58] Speaker 03:
Dr. Miranda was deposed, Dr. Suarez the

[00:25:00] Speaker 03:
deposition was in the process of being scheduled.

[00:25:04] Speaker 02:
Was either of them charged with being the source of the retaliation that led to the whistleblower complaint?

[00:25:12] Speaker 03:
No, Your Honor.

[00:25:15] Speaker 03:
So Dr. Suarez said in the declaration that they had two urologists operating in the entire VA health system in Puerto Rico outside of San Juan.

[00:25:29] Speaker 03:
one in Mayagas and Dr. Sanchez in Ponce, and that about a year or two prior to the change to Dr. Sanchez's schedule, one of those two urologists had stopped seeing patients, and that they had been unable to fill that position since that time.

[00:25:48] Speaker 03:
So at the time that the change was made to the schedule, the agency had been down to one urologist outside of San Juan for quite some time.

[00:25:57] Speaker 03:
And for that reason, they determined there was an acute need to increase the availability of services to veterans outside of the San Juan area.

[00:26:07] Speaker 01:
So the argument is that the government had a problem.

[00:26:11] Speaker 01:
And their solution to the problem was to abrogate the settlement agreement that they had made 16 years earlier.

[00:26:20] Speaker 01:
Is that what we would understand?

[00:26:22] Speaker 03:
I, of course, wouldn't frame it that way, Your Honor.

[00:26:26] Speaker 01:
Under the fact, right?

[00:26:30] Speaker 03:
No, Your Honor, because whether it's an abrogation of the settlement agreement sort of assumes the nature of the legal standard that's being applied under the standards that the board had established and that have been in place for more than 25 years.

[00:26:43] Speaker 03:
When the agency performs for a reasonable period of time when the duration is not set within the settlement agreement, it has fully performed as long as it performs for a reasonable period.

[00:26:54] Speaker 03:
It's not abrogating the agreement by performing for a reasonable period and then, you know, ceasing to perform.

[00:27:00] Speaker 01:
But it's unilaterally determining what is a reasonable period.

[00:27:05] Speaker 03:
Well, the board determines what's a reasonable period.

[00:27:07] Speaker 03:
The agency takes the risk that if the action is challenged,

[00:27:11] Speaker 03:
that the board may disagree with the agency's action.

[00:27:14] Speaker 01:
And this court may disagree with the board.

[00:27:16] Speaker 03:
Of course.

[00:27:16] Speaker 04:
This court has not ever blessed, in a precedential opinion, that approach of the board, of looking at whether there's been a reasonable amount of time.

[00:27:28] Speaker 03:
It has not, Your Honor, although two things with respect to that.

[00:27:32] Speaker 03:
In a decision issued in the early 90s, which was quite some time ago, cited by the board called Bavula, this court did address a situation in which- That was dicta, wasn't it?

[00:27:42] Speaker 04:
I've read that.

[00:27:43] Speaker 03:
It was dicta.

[00:27:43] Speaker 03:
It's totally dicta.

[00:27:45] Speaker 03:
It is.

[00:27:46] Speaker 03:
But the reasoning still stands.

[00:27:48] Speaker 03:
The second thing is that the petitioner really hasn't challenged the board precedent.

[00:27:54] Speaker 03:
He hasn't relied upon any authorities for the proposition

[00:27:57] Speaker 03:
that this precedent is wrong or that it should be overturned.

[00:28:00] Speaker 03:
He really just disagrees with the notion that the agreement doesn't provide a duration.

[00:28:06] Speaker 04:
What's your response to their position that it's true, it doesn't provide a duration, but because the time period should be tied to the location where he's stationed because he lives far away from that location?

[00:28:21] Speaker 04:
And so that's the argument I hear, is they're saying it's not reasonable because there's a tie between the location and the time period.

[00:28:29] Speaker 04:
So as long as he's at the location, that's the time period.

[00:28:33] Speaker 04:
What's your response to that specific argument?

[00:28:35] Speaker 03:
So the response to that is that if that was the arrangement that the petitioner wanted in 2001, that's the one that should have been put into the settlement agreement.

[00:28:45] Speaker 01:
The settlement agreement.

[00:28:46] Speaker 01:
What more should have been put in that's not there?

[00:28:49] Speaker 03:
So if the petitioner wanted to make his presence in the Ponce Clinic conditional upon his always having the reduced schedule there, then the agreement should have said something along the lines of the petitioner's schedule shall not be altered from this reduced schedule during his time at the Ponce Clinic.

[00:29:11] Speaker 01:
Well, let's look at the settlement agreement.

[00:29:13] Speaker 01:
Sure.

[00:29:14] Speaker 01:
Paragraph one, the agency and the appellant mutually agree

[00:29:18] Speaker 01:
that the appellant will be reassigned to the Ponce outpatient clinic effective not later than 2001.

[00:29:27] Speaker 01:
The appellant's pay will not be reduced.

[00:29:30] Speaker 01:
No conditions or no unless we decide otherwise.

[00:29:37] Speaker 01:
The government did not reserve any right to cancel that.

[00:29:41] Speaker 01:
It just said, you're going to be reassigned.

[00:29:44] Speaker 01:
Paragraph 2 says, the appellant will have a compressed work schedule at the POP, which is PONC's clinic, of 10 hours per day for four days per week, which will include three hours of travel per day, very clearly tied to the distance problem.

[00:30:04] Speaker 01:
And no question about that, is there?

[00:30:06] Speaker 03:
I don't believe so, Your Honor, but it's not clearly tied at all to a duration or to a condition of being present in the clinic and the reason that the government was not required.

[00:30:17] Speaker 01:
What more would you wanted to say to make it clear that the transfer to Ponce is related to the compressed work schedule?

[00:30:27] Speaker 03:
I'm not suggesting that there needs to be, it needs to be clear that there is

[00:30:32] Speaker 03:
was at the outset a relationship between the two.

[00:30:35] Speaker 03:
But what I am suggesting was that if the parties wanted to make it so that forever after, while he was at Ponce, he would maintain the same schedule, that that relationship had to stay the same forever, that needed to be stated in the agreement.

[00:30:54] Speaker 03:
It could have been the case that at the outset, it would have made sense for him to have a reduced schedule

[00:30:59] Speaker 03:
to account for travel time while he made arrangements to move closer to Ponce.

[00:31:03] Speaker 01:
It could have, in which case it would have said something to that effect, wouldn't it?

[00:31:07] Speaker 03:
Well, that's sort of just the reverse of the argument of the other side.

[00:31:12] Speaker 01:
You do agree whether your precedent is binding or anything.

[00:31:18] Speaker 01:
You do agree that in deciding what is reasonable time, we need to look at the entire context in which this settlement agreement was made.

[00:31:30] Speaker 01:
and the extent to which it should continue under the circumstances.

[00:31:36] Speaker 01:
Isn't that part of what your precedent tells us to do?

[00:31:39] Speaker 03:
Well, it's what they tell the board to do.

[00:31:41] Speaker 03:
And of course, this court reviews the board's determination on that point for substantial evidence.

[00:31:48] Speaker 03:
There was no evidence other than the contents of the agreement itself.

[00:31:54] Speaker 03:
There was no evidence in the record before the board concerning

[00:31:57] Speaker 03:
the circumstances surrounding the agreement and the purposes of the parties in playing together.

[00:32:03] Speaker 02:
And the reason that- Isn't it very unusual that some federal employee would be paid for commuting time?

[00:32:09] Speaker 03:
It is exceptionally unusual, yes.

[00:32:11] Speaker 02:
Are there any other instances that you're aware of where employees are paid for commuting time?

[00:32:17] Speaker 03:
Not me personally, but of course, I haven't looked into that question.

[00:32:21] Speaker 04:
So I- This whole thing is quite unusual, isn't it?

[00:32:26] Speaker 04:
the determination of whether 16 years is a reasonable period of time under the circumstances.

[00:32:32] Speaker 04:
Yes.

[00:32:32] Speaker 04:
Is that a question of law or fact?

[00:32:35] Speaker 03:
That's a question, I would say, of fact.

[00:32:38] Speaker 04:
When you say, I would say like that, do you have legal support for that?

[00:32:43] Speaker 03:
Yes.

[00:32:44] Speaker 03:
I believe that when this court reviewed, so for example, in a non-precedential decision, McGee, when this court reviewed the board's determination of what was reasonable,

[00:32:54] Speaker 03:
reviewed it for substantial evidence.

[00:32:57] Speaker 03:
But the- Do you have anything else?

[00:33:00] Speaker 01:
I'm sorry, did you say substantial evidence on what is reasonable?

[00:33:04] Speaker 03:
As a question of fact.

[00:33:05] Speaker 03:
Rather than- Well, if the board cites legal principles, of course, then that would be a question of law.

[00:33:11] Speaker 01:
Isn't it arbitrary or capricious?

[00:33:13] Speaker 01:
It's a judgment by the board as to what is reasonable?

[00:33:16] Speaker 03:
Is that a fact?

[00:33:18] Speaker 03:
That would be an issue of judgment, I would call it.

[00:33:21] Speaker 03:
It's not clearly law or fact.

[00:33:23] Speaker 01:
I'm afraid you agree on that.

[00:33:26] Speaker 03:
But the other issue is that the board precedent starting in 1992 was quite clear on the point that if there was no clear statement of duration of performance in an agreement, then that meant that the board would infer

[00:33:42] Speaker 03:
a reasonable time.

[00:33:45] Speaker 03:
That precedent had been established for nearly 10 years at the time this agreement was put together.

[00:33:50] Speaker 03:
And it's been established for much longer than that since then.

[00:33:52] Speaker 03:
If this court were to rule that suddenly that that rule is not in place, that the parties have a responsibility instead to do the opposite, that if they don't want the duration to be

[00:34:04] Speaker 03:
indefinite or for the entire length of time contemplated but not written down by the parties in the agreement, that would overturn quite a lot of settled expectations.

[00:34:13] Speaker 01:
Well, we really don't have to go that route, because the real question is whether it was reasonable for the government to unilaterally change the terms of his settlement agreement.

[00:34:25] Speaker 01:
There's no question that they're changing the terms of the settlement agreement, is there?

[00:34:31] Speaker 03:
Well, there is, Your Honor, because, again, that sort of assumes the legal stance of the standard.

[00:34:35] Speaker 02:
It assumes that- Your argument is the settlement agreement incorporates a reasonable time provision.

[00:34:41] Speaker 03:
Yes, Your Honor, and so that they have satisfied the agreement and therefore are not changing.

[00:34:44] Speaker 01:
And the question I'm asking is, if it incorporates a reasonable time, then the question is whether

[00:34:49] Speaker 01:
Under these circumstances, this was a reasonable time, given the context in which this settlement agreement was made.

[00:34:57] Speaker 01:
Is that fair?

[00:34:59] Speaker 03:
I mean, context is certainly one of the factors that the board can consider.

[00:35:03] Speaker 03:
Yes, it's supposed to consider.

[00:35:04] Speaker 01:
Would it also be fair to say that that's not a unilateral decision that the government could make willy-nilly?

[00:35:15] Speaker 01:
There has to be some good reason for them to make it.

[00:35:19] Speaker 01:
You're familiar with illusory contracts.

[00:35:24] Speaker 01:
That is to say, if the government went into this thinking it could change its mind any time, wouldn't we think that's an illusory contract?

[00:35:34] Speaker 03:
if it went into it with that intention.

[00:35:37] Speaker 03:
But I mean, the fact that the government has performed for 16 years suggests that it did not have that state of mind.

[00:35:43] Speaker 02:
I mean, that sounds like that.

[00:35:45] Speaker 02:
It's not illusory if they're performing for a reasonable period of time.

[00:35:47] Speaker 02:
Right, exactly.

[00:35:48] Speaker 02:
A restatement.

[00:35:49] Speaker 02:
If this is reasonable.

[00:35:51] Speaker 03:
Of course, Your Honor.

[00:35:52] Speaker 02:
That's really the test.

[00:35:53] Speaker 02:
I wonder whether there's an issue with respect to the reasonableness of the period of time that hasn't been addressed.

[00:35:59] Speaker 02:
It sounds to me as though the assignment to Ponce and this deal that he got about being paid for the commuting time was based on the fact that if he stayed in San Juan, he would suffer potential retaliation from supervisors and other people in the San Juan facility.

[00:36:20] Speaker 02:
And perhaps the question is whether a 60-year period

[00:36:26] Speaker 02:
is a long enough period for that risk to have been dissipated.

[00:36:30] Speaker 02:
For example, that the supervisors who were there at the time and who might retaliate against him were no longer at the San Juan facility.

[00:36:39] Speaker 02:
I mean, isn't that sort of a relevant consideration here as to whether the reasons that gave rise to the transfer have been dissipated over the last 16 years?

[00:36:54] Speaker 03:
That might go to the, well, first of all, Your Honor, discussing the supposed hostile work environment in San Juan and that as the asserted basis for the move to Ponce, there's no evidence for that in the record, as far as I'm aware.

[00:37:10] Speaker 03:
That's simply a sort of apt-and-effect argument.

[00:37:14] Speaker 02:
What does the record show about the reasons that he was transferred to Ponce under the agreements?

[00:37:21] Speaker 03:
I'm not aware that there is evidence in the record on that point.

[00:37:25] Speaker 02:
Well, then maybe we need to know what the reasons behind the transfer were in order to make a determination of what's a reasonable period of time.

[00:37:35] Speaker 03:
Well, it's the petitioner's obligation, of course, to raise to the board any considerations that he thought might be relevant to the inquiry.

[00:37:44] Speaker 03:
So if it's not in the record, that would be the

[00:37:48] Speaker 03:
result of the petitioner's failure to put it in the record, which goes to the- You do agree with Ms.

[00:37:54] Speaker 01:
Mercado.

[00:37:55] Speaker 01:
I think that's her name, isn't it?

[00:37:57] Speaker 01:
Ms.

[00:37:58] Speaker 01:
Mercado.

[00:37:59] Speaker 01:
You do agree with her that if instead of just saying stay in Ponzi but work more than you've been working, they had said it's time to come back to San Juan, that that

[00:38:14] Speaker 01:
might have dissipated any need for this special compressed work pattern.

[00:38:22] Speaker 01:
But it might have raised another question as to whether ordering him to go back to San Juan, as Judge Dyke was just suggesting, would be inappropriate given the context in which he was sent off to Ponzi.

[00:38:38] Speaker 03:
Certainly, that could be a relevant consideration that could be raised by the petitioner in those circumstances as something to be considered by the board.

[00:38:48] Speaker 03:
But the fact remains, and I think it's really difficult to argue that the petitioner, as he asserts here, didn't have the opportunity to complete discovery or to add additional materials to the record.

[00:39:00] Speaker 01:
But in this matter, given- You say it is difficult to argue or it's not?

[00:39:04] Speaker 03:
It is difficult to argue.

[00:39:06] Speaker 01:
It's not difficult at all.

[00:39:08] Speaker 01:
She just announced that the case was closed.

[00:39:13] Speaker 01:
Here's the answer.

[00:39:15] Speaker 01:
She gave no warning to anybody.

[00:39:17] Speaker 03:
Your Honor, on March 1st, the judge issued an order that said, I have to decide this case in 120 days.

[00:39:25] Speaker 03:
This is day 92.

[00:39:27] Speaker 03:
The only way that I'm inclined to allow the petitioner to have additional discovery is if I suspend case processing in this matter for 30 days.

[00:39:35] Speaker 03:
And during that time, the parties should be completing discovery.

[00:39:39] Speaker 03:
They should be formulating any additional materials they want to put into the record.

[00:39:44] Speaker 03:
And after that, we can resume processing.

[00:39:48] Speaker 01:
I'm sure I don't need to remind you that part of the time period was taken up by a hurricane.

[00:39:55] Speaker 01:
And in fact, the judge ordered the case stopped.

[00:40:00] Speaker 01:
Am I correct about that?

[00:40:03] Speaker 03:
Not exactly, Your Honor.

[00:40:04] Speaker 03:
So the 121 days started from the date it was refiled after the hurricane.

[00:40:09] Speaker 03:
After the hurricane, OK.

[00:40:11] Speaker 03:
So the case was then suspended for 30 days and resumed on about day 97, which was in early April, which meant if you could do the math, that by the end of April, the judge had to decide the decision or decide the case.

[00:40:28] Speaker 03:
And the judge at that point issued the order saying, if you need more time past April, you got to let me know.

[00:40:35] Speaker 03:
From all of those factors, it's pretty evident that the petitioner should have been on notice that if he wanted to continue past that date, he needed to let the administrative judge know.

[00:40:46] Speaker 01:
And she didn't?

[00:40:48] Speaker 03:
No.

[00:40:48] Speaker 03:
The petitioner did not let the administrative judge know.

[00:40:51] Speaker 03:
And the petitioner, in his motion for reconsideration, didn't assert that it was the administrative judge's fault because there had been no deadline.

[00:40:59] Speaker 03:
He said it had been a mistake on his part.

[00:41:01] Speaker 03:
That's all.

[00:41:02] Speaker 03:
Unless the court has further questions, we respectfully request that the decision be affirmed.

[00:41:09] Speaker 03:
Thank you.

[00:41:09] Speaker 02:
Thank you, Ms.

[00:41:10] Speaker 02:
Thomas.

[00:41:12] Speaker 02:
Ms.

[00:41:12] Speaker 02:
Mercado, you have two minutes.

[00:41:15] Speaker 00:
Yes.

[00:41:15] Speaker 00:
I would first address questions about the context of the procedure by which the settlement agreement was reached.

[00:41:22] Speaker 00:
In pages one through 47 of the, through 63 of the appendix, those are the documents referencing the initial procedure in 2001 before the board that gives the court context of what happened that led to the settlement agreement.

[00:41:40] Speaker 00:
And this is part of our, the record shows that the reason and the procedure followed by the agency to overturn the settlement agreement was unreasonable.

[00:41:53] Speaker 00:
They didn't take into consideration the settlement agreement and the procedure by which it was reached with the agency.

[00:42:00] Speaker 00:
In their response, they even denied having knowledge of the whistleblower claim that was clearly in the record before the agency.

[00:42:11] Speaker 00:
They didn't have the settlement agreement on file for petitioners.

[00:42:15] Speaker 00:
So when they revoked his compressed work schedule, there is no question that no analysis was made

[00:42:22] Speaker 00:
about the settlement agreement, the agency's responsibilities under the agreement.

[00:42:26] Speaker 00:
No analysis was made by the agency regarding whether it was reasonable to do what they were doing because they didn't consider petitioners' rights.

[00:42:35] Speaker 02:
So on the... Did you ever argue before the AJ that 16 years was not enough time?

[00:42:42] Speaker 00:
I didn't hear the first part of your question.

[00:42:43] Speaker 00:
I'm sorry.

[00:42:44] Speaker 02:
Did you ever argue before the AJ

[00:42:48] Speaker 02:
that 16 years was not a reasonable period of time for any potential retaliatory motive or environment to dissipate.

[00:42:59] Speaker 00:
We argued that the agreement was clear, that he had the right, and that it was still.

[00:43:04] Speaker 02:
You've got to answer my question.

[00:43:05] Speaker 00:
But it wasn't raised by the agency in the response, so the matter wasn't raised.

[00:43:08] Speaker 02:
No, my question is not that.

[00:43:10] Speaker 02:
My question is, did you raise the issue?

[00:43:14] Speaker 00:
whether it was reasonable.

[00:43:16] Speaker 02:
Did you argue that it was unreasonable because the same conditions that led to the transfer to Ponce still exist in San Juan?

[00:43:28] Speaker 00:
Yes.

[00:43:28] Speaker 00:
Where did you argue that?

[00:43:30] Speaker 00:
We argued in our response.

[00:43:32] Speaker 04:
Do you have a appendix site that you could give us for that?

[00:43:37] Speaker 00:
Yes, I have it.

[00:43:44] Speaker 00:
I'm sorry, it's the reply.

[00:43:46] Speaker 00:
It starts in appendix 128.

[00:43:50] Speaker 00:
That's where we argued that the conditions of this, and in the petition of foreign enforcement itself, the main argument is that the settlement agreement was still in place, and that it was clear, and that the- No, no, no.

[00:44:04] Speaker 02:
You've got to focus.

[00:44:05] Speaker 02:
I'm asking a specific question.

[00:44:07] Speaker 02:
You have to focus on giving me a specific answer to the question.

[00:44:09] Speaker 00:
Yes.

[00:44:09] Speaker 00:
I thought I was asked there, yes.

[00:44:11] Speaker 02:
Where is this written?

[00:44:14] Speaker 00:
The reply to the petition for enforcement is at Appendix 128.

[00:44:17] Speaker 04:
So at what page in that reply do you address the specific issue that Judge Dyke asked?

[00:44:24] Speaker 00:
No, I was trying to say that the reasonableness issue wasn't raised by the agency, whether it was reasonable for 16 years to comply.

[00:44:33] Speaker 00:
So it wasn't addressed specifically in the reply.

[00:44:36] Speaker 04:
So the question is, in the reply, did you address the question

[00:44:41] Speaker 04:
of whether the reasons behind the transfer, that being a hostile environment for him in San Juan, whether that condition still existed or not.

[00:44:54] Speaker 04:
Did you mention that in this reply brief that we're looking at?

[00:44:57] Speaker 00:
No, regarding the whistleblower activity, no.

[00:45:00] Speaker 00:
It was, we raised the unreasonableness of the change in light of the fact that the conditions for him in Ponce were still in place and that the agency had never raised any issue as to whether the agreement could be reviewed or amended.

[00:45:15] Speaker 00:
And we did cite that in page 137 of the reply.

[00:45:19] Speaker 00:
But about if the question was geared towards the whistleblower, it wasn't raised in the reply.

[00:45:25] Speaker 01:
The government never raised the issue of whether it was okay to go back to San Juan.

[00:45:31] Speaker 00:
It wasn't raised.

[00:45:32] Speaker 00:
It wasn't raised.

[00:45:33] Speaker 00:
No alternatives were discussed with petitioner nor in their response did the agency

[00:45:37] Speaker 00:
explain that it wasn't feasible for him for another accommodation for him in San Juan or in another area for him to maintain the settlement agreement.

[00:45:47] Speaker 00:
No accommodations were made or discussed and none were explained by the agency in their response.

[00:45:52] Speaker 01:
It's speculation that I assume that going back to San Juan might have been favorable to him had they offered that.

[00:46:00] Speaker 00:
Yeah, it's speculative, but that's why I meant that maybe that would be a better alternative than just keep him in Ponce and withdraw his travel time and compress work schedule without any prior consideration of the agreement itself or the attendance circumstances regarding his rights in Ponce.

[00:46:16] Speaker 00:
In fact, the record shows that he requested a meeting with his supervisor and none was given.

[00:46:22] Speaker 02:
I think we're out of time.

[00:46:23] Speaker 02:
Thank you.

[00:46:23] Speaker 00:
Thank you.

[00:46:23] Speaker 02:
Thank you, House Counsel.

[00:46:24] Speaker 02:
The case is submitted.