[00:00:00] Speaker 00:
18-218-8 Tang versus MSBV.

[00:00:51] Speaker 00:
I think we're ready whenever you are, sir.

[00:01:04] Speaker 02:
Good morning, Your Honors.

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May it please the Court, I'm George Ciusi, and I'm representing Dr. Cindy Tang, who is a FDA scientist who reviews drugs for the FDA.

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In 2015, Dr. Tang disclosed that her superiors had committed two violations of law rule and regulation in conjunction with

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We appreciate that.

[00:01:33] Speaker 00:
I think we understand what went down here.

[00:01:35] Speaker 00:
This case is a bit striking because I think this person was lawyered.

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I don't know if you were the lawyer, but this person, your client, had a lawyer at the time of filing all this stuff at the MSPB, right?

[00:01:49] Speaker 00:
It was me.

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didn't you get like two notices to show cause just asking for you to call out a huge stack of paper the fundamental issues that one needs to decide in determining whether or not a case is frivolous and it seems to me

[00:02:10] Speaker 00:
You didn't do this, certainly not the first time, and even the second time.

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It required for the administrative judge to get her or his mind around what was going on here to call themselves into the record.

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Don't you think this was a bit unusual in terms of requiring the AJ to do stuff that, I mean, some might argue that the AJ could have just stopped that, given the responses you had to the notice to show cause, just said, not enough, goodbye.

[00:02:37] Speaker 02:
No, Your Honor.

[00:02:39] Speaker 02:
I don't believe that the judge was fair when he reached that conclusion.

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What I did in our supplemental brief was I laid out what the legal issues were in terms of the missed deadlines.

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I then indicated which were the disclosures and what those disclosures showed.

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It's true.

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I did not quote the emails in my supplemental submission to the judge.

[00:03:10] Speaker 00:
So you did identify the statutory provisions that were supposedly violated?

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Yes.

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You did disclose the protected disclosures when they were made, who they were made to?

[00:03:23] Speaker 02:
No.

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When they were made and to whom they were made are not relevant factors in jurisdiction.

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The fact of the matter is,

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Dr. Tang identified the violations of law, rule, or regulation.

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I identified those in our brief, and I directed the judge to the relevant emails in which those disclosures were made.

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In fact, Judge Niedrich quoted from my emails, he objected to the fact that he had to actually look them up, but he quoted

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the emails whose references I provided to him.

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He then found that Dr. Tang had not reasonably disclosed violations of law or rule or regulation, but those findings were reached on non-relevant, non-applicable factors.

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He found that

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Dr. Tang merely had arguments with her superiors about how these deadlines were missed.

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In the second disclosure, he found as fact that Dr. Tang was essentially holding her superiors responsible for violations that she had engaged in.

[00:04:44] Speaker 01:
Can I ask, I guess I'm just trying to understand the jurisdictional

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limits of the non frivolous part of this test, suppose that she had accused one of her superiors of crashing a government vehicle.

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Yes.

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Okay.

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But suppose there really is no reasonable dispute that her superior was not even in the car and that she was the driver.

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Okay.

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Would that be something that as a matter of fact, the MSPB judge

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would be permitted to say a non-frivolous allegation because there really is no reasonable dispute.

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These are not effects of your case, even at all, or even close.

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So I know that.

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But I guess you're saying he or she, I don't know, the AJ in this case,

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reached findings of fact that were beyond the purview of what they should have done at this stage in the proceeding.

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That's right.

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And I am just trying to ascertain what kinds of facts they can think about in the context of deciding whether an allegation is not frivolous or not.

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So go to my hypothetical.

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Yes.

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If there's really just no dispute that her supervisor was not in the car and that she was the driver of the vehicle, would the AJ be free at that point to say,

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I find that you were the driver, not your supervisor, and as such this case is dismissed because there's no non-fribolous allegation.

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decision by this court that addresses that particular point.

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In Watson, a case decided by the government, this court held at a hearing, after a hearing, that if the evidence disclosed that the violation was the result of conduct by the disclosure, that in all likelihood, the board would not have jurisdiction over that claim.

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I think in response to your question Judge Moore, if in fact the evidence is indisputable, then I believe a judge may very well, based on the principles that are at play here,

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A judge may very well find that it was not a non-frivolous disclosure.

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We don't have undisputable evidence in this case.

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And in Piccolo, this court made absolutely clear that it's not the judge's job on a jurisdictional question to weigh evidence, evaluate credibility, and reach a decision as to who was right and who was wrong.

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We haven't had an opportunity to take this.

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I mean, we said there's no weighing of evidence of the jurisdictional issue, but we haven't prohibited the board judge from looking at the entire record, have we?

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We said, I believe we've said that this is akin to a summary judgment determination, where you look at the record and determine whether there's any genuine issue of material fact.

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Right?

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Yes.

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And in doing that, even if your client made certain allegations, the board can look at the record and say, well, she may have made that allegation, but there's nothing to support it, so I find no genuine issue.

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District court judges do that all the time, don't they?

[00:08:01] Speaker 02:
Well, yes and no.

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I mean, in this particular case, all the evidence that the judge had were the email disclosures.

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I will grant that the agency superiors who were the subjects of the disclosures, they had their arguments as to why they had not engaged in a violation.

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For each of their arguments, Dr. Tang had a responsive email, sometimes going from multiple pages, arguing why the superiors' suggestions were not accurate.

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In that case, I don't believe a judge could grant summary judgment.

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Even if her reasons were entirely frivolous?

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But how could anybody judge whether her reasons are frivolous without looking at the underlying record and without giving us the opportunity to examine or cross-examine?

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We had the record.

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We had the emails in the back and forth, which was what the disclosures were.

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Dr. Tang clearly raised the disclosures that her superiors had violated these deadlines and the review requirements.

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They said they have all the evidence in the record about what the deadlines were, what the submissions were, when she made it, the deficiencies they noted, and all the like.

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They can't weigh whether she was right or her superiors were right if they find them both

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potentially credible, but they can say, can't they, looking at this record, no reasonable person could conclude that she made a protected disclosure.

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No, I don't believe that is an appropriate conclusion on jurisdictional.

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Do you believe that they can't legally do that or that it was improper here because there was a genuine issue?

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I believe both.

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So you say that in a whistleblower case, an administrative judge can't look at the record before it and apply what we call an analogous summary judgment standard and say there's no genuine issue of material fact as to whether there was a

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non-frivolous disclosure here.

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I believe a judge can do that.

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I don't believe.

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If that's what he or she did here, then there's no legal error.

[00:10:24] Speaker 02:
I disagree.

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Because I think what the judge did was he looked at the superior's arguments, he looked at Dr. Tang's arguments, and he concluded that theirs was more likely to be true than hers.

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And I don't believe that's appropriate.

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I believe that is exactly, with all due respect, Judge, I think that is exactly weighing the evidence

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and reaching conclusions based on disputed evidence, which he is not permitted to do.

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It's undisputed that Dr. Tang accused her superiors of violating these requirements.

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If they have their arguments, there's no dispute that the requirements were violated.

[00:11:06] Speaker 02:
The government admits in its brief at page 11 that the prescription drug requirement had a due date – the two of them had a due date of June 15th and June 16th.

[00:11:17] Speaker 03:
And the ultimate review – So let me ask a hypothetical that's a little bit closer to the facts of the case.

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if she made a disclosure and said, you caused me to miss this deadline.

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And her superiors responded and said, we didn't cause you to miss the deadline at all.

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We did nothing.

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You submitted the initial request a month after the deadline.

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And she said, nothing in response to that.

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Would that be a non-frivolous allegation that her superiors had caused her to miss the deadline?

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If Dr. Tang did not dispute her supervisor's version of the facts, then it might have been possible for Judge Niedrich to decide that that was worthy of summary judgment.

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I mean, how could he not?

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If the only person that caused the misdeadline was Dr. Tang, then no reasonable person could believe that the supervisors caused it.

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If, in fact, she did not dispute their version, she did dispute their version.

[00:12:28] Speaker 03:
In each of these instances... Okay, but we have actual documentary evidence here, right?

[00:12:33] Speaker 02:
But the evidence are the emails.

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Does she dispute that she sent these emails or that her superiors responded?

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She disputes their timeline in each instance.

[00:12:43] Speaker 03:
But we know what the timeline of the emails are.

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Aren't they all updated and things like that?

[00:12:48] Speaker 02:
Judge, it's not the timeline of the emails.

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It's the timelines that amount to the superior's defense to the claims that they violated.

[00:12:59] Speaker 01:
You mean like the timelines, like whether she submitted it at 4 o'clock on June 14 and only gave them so many days to review those timelines?

[00:13:06] Speaker 01:
Is that what you're talking about?

[00:13:08] Speaker 02:
In that same email, Judge Moore,

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Judge Dr. Tang indicated that even though her superior had said, you didn't submit anything until June 15th, giving her only one day.

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Dr. Tang said, in fact, I submitted it on May 29th, and she had two weeks.

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And I wasn't told to make any amendments to these until such and such a day, at which time I did them virtually immediately.

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And then I handed in what I was supposed to hand in on June 15th, and the superiors did not address that until July 27th, I believe.

[00:13:50] Speaker 02:
The deadline was violated.

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Who was responsible for it is a disputed question of fact.

[00:13:57] Speaker 00:
Oh, why don't we hear from the other side, Jerry?

[00:14:00] Speaker 02:
Thank you.

[00:14:12] Speaker 04:
May it please the court.

[00:14:13] Speaker 04:
I'd like to start to briefly correct the record.

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The review that was submitted the last minute that Judge Moore just pointed out was review 5358.

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And the one that was submitted at May 29th was actually a separate review, review 202.

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So I believe my friend here was inaccurate in stating that.

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But going to the hypothetical that Judge Moore and Judge Hughes both presented, I believe that's the key issue here.

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What it comes down to is,

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If a petitioner alleges that her supervisor crashed a government car, or she disclosed her supervisor crashed a government car, and then submits hundreds of pages of documents actually showing her supervisor did not

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crashed the government car.

[00:15:00] Speaker 04:
At the non-frivolous stage, the administrative judge is going to assume all the documents she submitted in support of her disclosure are true and make a reasonable belief assessment based on those documents.

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And when the documents show that the supervisor did not crash the government car, then the judge is going to determine that the appellant did not make a non-frivolous allegation that she reasonably believed she disclosed a violation of law.

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And this court nor the board have never helped.

[00:15:28] Speaker 03:
You know, that's a really easy case.

[00:15:30] Speaker 03:
And my hypothetical was a really easy case, too.

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This one is a lot of emails back and forth about fairly detailed procedures and the like.

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And there is, at least, seems to be arguments back and forth between her and her supervisors about what's going on.

[00:15:48] Speaker 03:
Why isn't that kind of the quintessential

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issue that should have been left for a trial before the administrative judge rather than just go off at the non-privilege stage?

[00:16:00] Speaker 04:
Because they don't actually dispute the key facts for the reasonable belief test about that disclosure in terms of who was at fault.

[00:16:07] Speaker 04:
Her exact wording in her second jurisdictional submission after she was given a second chance to explain it was,

[00:16:14] Speaker 04:
Appellant disclosed three instances in which her supervisor, Patricia Hughes, refused to work on Appellant's work products, specifically two reviews, thereby causing the two reviews to violate the PDUFA.

[00:16:28] Speaker 04:
But then when you look at all the email traffic between them, you see a series of emails from Ms.

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Hughes between May

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29th in June 15th, in which she sent her three separate sets of revisions for that review.

[00:16:41] Speaker 04:
And the petitioner never disputes that Ms.

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Hughes did send her three separate sets of revisions in that time.

[00:16:49] Speaker 04:
So that part is never disputed between the two parties.

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And so based on that, the judge determined the petitioner simply could not reasonably believe nor could an objective person in the same scenario reasonably believe that the petition or that Ms.

[00:17:04] Speaker 04:
Hughes refused to work on her work product in that time period and thereby caused violations of the PDUFA.

[00:17:14] Speaker 04:
And moving on to

[00:17:16] Speaker 04:
The other, my friend just pointed out before, that he cited the statutes in his jurisdictional submission.

[00:17:22] Speaker 04:
The statute he cited for Disclosure 3 about the violation of Bidufma

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as I pointed out in our brief, doesn't actually seem to contain the requirement he claims it does.

[00:17:35] Speaker 04:
It's nowhere in there as far as I can tell.

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And he provided no explanation as to why this was an actual requirement, which is particularly striking when his supervisor or her supervisors in the emails also told her, this is not a requirement.

[00:17:49] Speaker 04:
We don't need to do this.

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And so without further explanation about that statute,

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It's nothing more than a conclusive allegation, and it certainly does not establish that an objective person would reasonably believe that she disclosed a violation of law when she said she disclosed that Mr. Q, I believe it's pronounced, and Ms.

[00:18:08] Speaker 04:
Hughes needed to sign these reviews.

[00:18:14] Speaker 04:
I'm just going back to what my friend said about this being a merits determination.

[00:18:18] Speaker 04:
Again, I just read.

[00:18:19] Speaker 01:
Let me ask you another question.

[00:18:20] Speaker 01:
So there were multiple instances disclosed.

[00:18:23] Speaker 01:
You addressed one of them saying that there were three rounds of revisions.

[00:18:28] Speaker 01:
So it's not true.

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You think the judge can conclude it's not true.

[00:18:33] Speaker 01:
It's just not true what Dr. Tang said about non-responsiveness and that that's what caused it to be late.

[00:18:39] Speaker 01:
There's a second one where

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The allegation is that the supervisor was late, and on this one, she submitted her review at 4 o'clock on June 12 for a June 16th deadline.

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June 12th happened to be a Friday.

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And the government's response, which the administrative judge accepted, was, well, our supervisor didn't get it until after 4 o'clock on June 12.

[00:19:08] Speaker 01:
which means she really didn't get it till Monday morning.

[00:19:11] Speaker 01:
First off, who leaves it before four o'clock on a Friday?

[00:19:14] Speaker 01:
I mean, I don't know about that.

[00:19:16] Speaker 01:
And then doesn't check their email the weekend.

[00:19:18] Speaker 01:
Okay, maybe not.

[00:19:19] Speaker 01:
But still she got it Monday morning.

[00:19:23] Speaker 01:
There's no evidence in this record that it was impossible for the supervisor to turn it around in 24 hours, but that feels to me like the kind of fact question for which further development would help.

[00:19:35] Speaker 01:
How do we know that receiving it on Monday morning didn't give the supervisor enough time to issue it on Tuesday?

[00:19:43] Speaker 01:
The allegation is my supervisor caused it to be late.

[00:19:47] Speaker 01:
What we don't have is anything that explains what needed to occur and why getting it at 4 o'clock on a Friday would prevent the supervisor from having it done in a timely fashion by Tuesday, close of business on Tuesday.

[00:20:01] Speaker 01:
So why isn't that the kind of allegation?

[00:20:04] Speaker 01:
That one doesn't seem as clear to me as the earlier one where she said, I gave it to her and my supervisor did nothing when in fact there were three back and forths disclosed in the actual emails she presented.

[00:20:16] Speaker 01:
You know, so that one maybe I feel more comfortable with, but what about the second one?

[00:20:21] Speaker 04:
In the second one, her response to her supervisors when they accused her of that was actually, no matter when I submitted to her, she won't get it on time.

[00:20:29] Speaker 04:
She never disputes again that it was not in a timely fashion.

[00:20:34] Speaker 04:
And submitting something such as a... What are you talking about?

[00:20:37] Speaker 01:
She said this submission by her supervisor was untimely.

[00:20:40] Speaker 01:
Her supervisor didn't...

[00:20:48] Speaker 01:
I gave it to her June 12th.

[00:20:51] Speaker 01:
And the only response I saw by the government was, well, there was a weekend in between, which baffled me.

[00:20:58] Speaker 04:
is ignoring all aspects of the Anti-Deficiency Act and whether somebody can work on the weekend because a petitioner did not allege that.

[00:21:05] Speaker 04:
Her only response when she was accused of submitting it late was that it doesn't matter when I submit it.

[00:21:13] Speaker 04:
It'll be late regardless.

[00:21:14] Speaker 04:
So she doesn't dispute that she submitted it late.

[00:21:17] Speaker 04:
And if she wants to make a non-frillless allegation that that was sufficient time, that's on the petitioner.

[00:21:23] Speaker 04:
That's not a fact that the judge is going to assume that she can do it within one day.

[00:21:27] Speaker 01:
The petitioner wants to... Wait, but you want the judge to assume because she, the employee, submitted it late, therefore her boss didn't commit a violation when the boss issued it late.

[00:21:41] Speaker 04:
That's a fact.

[00:21:43] Speaker 01:
That's how late, right?

[00:21:44] Speaker 01:
Look, sometimes I give my law clerks false deadlines, right?

[00:21:48] Speaker 01:
They've got to get me their bench memos two weeks in advance of court.

[00:21:52] Speaker 01:
Well, if they get it to me 13 days in advance of court, I'm probably not going to sit here and tell you I'm unprepared because my law clerks only gave it to me 13 days in advance instead of 14 days in advance.

[00:22:03] Speaker 04:
Because when she's making a non-police allegation that her boss caused this review to be late, she has to explain why, when her boss tells her, or her second-level supervisor tells her, this was late and you didn't give your supervisor enough time.

[00:22:17] Speaker 01:
That's a good question.

[00:22:18] Speaker 01:
Why does she have to explain it?

[00:22:19] Speaker 01:
She says, my supervisor was late.

[00:22:22] Speaker 01:
Government's response is not, the supervisor wasn't late.

[00:22:25] Speaker 01:
Government's response is, well, that's because you were late in submitting it.

[00:22:31] Speaker 01:
I don't see how that's not a fact question.

[00:22:33] Speaker 01:
I don't see how that falls on the line of non-frugalist allegation.

[00:22:37] Speaker 01:
Because she has to disclose... Maybe she was complicit in the lateness, but doesn't that something somebody's got to figure out?

[00:22:43] Speaker 04:
Well, she has to explain enough such that there is something to figure out.

[00:22:47] Speaker 04:
The judge isn't going to assume that was on time.

[00:22:50] Speaker 01:
But why?

[00:22:52] Speaker 01:
Why isn't the judge going to assume?

[00:22:53] Speaker 01:
All the judge has to say was this late or not.

[00:22:57] Speaker 01:
Yes, it was late.

[00:22:59] Speaker 01:
She may or may not have been the reason it was late, but we don't know.

[00:23:03] Speaker 01:
We don't know clearly on these facts at this stage in the proceeding.

[00:23:09] Speaker 04:
What the judge has to determine here is whether she reasonably believed in the truth of her disclosure, which is that Ms.

[00:23:14] Speaker 04:
Hughes caused the review to be late.

[00:23:16] Speaker 04:
And in order for her to establish that an objective person would reasonably believe Ms.

[00:23:22] Speaker 01:
Hughes.

[00:23:23] Speaker 01:
Is there any evidence that the supervisor didn't approve this such that the whole thing happened by the deadline?

[00:23:29] Speaker 04:
The only indication in the record.

[00:23:31] Speaker 04:
Oh, yes.

[00:23:31] Speaker 04:
I don't believe this one was approved by the deadline.

[00:23:34] Speaker 04:
I think that's in the record.

[00:23:35] Speaker 01:
So she has made an allegation that this

[00:23:39] Speaker 01:
did not issue by the deadline.

[00:23:41] Speaker 01:
She has made an allegation that my supervisor is responsible for that.

[00:23:45] Speaker 01:
The government's response at the pleading stage is, well, you were responsible for it because you gave it to your supervisor beyond her deadline to you late.

[00:23:55] Speaker 01:
But I mean, do you not see how my example demonstrates that maybe all supervisors are doing these things as signed?

[00:24:02] Speaker 01:
And then issue.

[00:24:03] Speaker 01:
I mean, there's lots of things I get.

[00:24:04] Speaker 01:
I just have to sign.

[00:24:05] Speaker 01:
I mean, not necessarily in this job, actually, but in other parts of my life.

[00:24:08] Speaker 01:
Just sign it, send it in.

[00:24:09] Speaker 01:
I mean, maybe the supervisor didn't have a significant substantive role to play on this.

[00:24:14] Speaker 01:
We don't know, because we're at the allegations stage.

[00:24:16] Speaker 01:
So we have no idea, based on just the allegations that have been lodged, whether or not this was enough time for the supervisor or not.

[00:24:24] Speaker 04:
But part of the allegation is the document she submitted in support of this disclosure.

[00:24:29] Speaker 04:
And what that document states is her supervisor, second level Ms.

[00:24:34] Speaker 04:
Enzor, tells her, this was late because you submitted it basically on the last day or the Friday before.

[00:24:41] Speaker 04:
And then her response is not, no, it's not.

[00:24:45] Speaker 04:
It's Ms.

[00:24:45] Speaker 04:
Hughes' fault.

[00:24:46] Speaker 04:
Her response is, no matter when I submit it to Ms.

[00:24:49] Speaker 04:
Hughes, it's going to be late.

[00:24:50] Speaker 03:
So it doesn't matter.

[00:24:51] Speaker 03:
So your view is that we're not just looking at whether it was late or not.

[00:24:55] Speaker 03:
Because the disclosure is the supervisor caused it to be late.

[00:24:59] Speaker 03:
And as we look at the record, which we're entitled to do, there's no genuine issue that it wasn't her supervisor's fault.

[00:25:08] Speaker 04:
Yes.

[00:25:09] Speaker 04:
And that's reflected.

[00:25:10] Speaker 03:
I mean, this one seems really close.

[00:25:12] Speaker 03:
Yes, but you do have the email you keep quoting from Dr. Tang that says, I don't really care whether it was going to be

[00:25:20] Speaker 03:
late or not, or whether I made the deadline, because it's going to be late no matter what.

[00:25:25] Speaker 04:
Yes.

[00:25:26] Speaker 04:
And so she never disputes Ms.

[00:25:28] Speaker 04:
Enzor's accusations, saying this was late because you submitted it really close to the deadline.

[00:25:34] Speaker 01:
She only responds, I don't care when I submit it.

[00:25:37] Speaker 01:
The thing we're supposed to accept at the pleading stage is all of the allegations made by the pleader.

[00:25:43] Speaker 01:
We're not supposed to accept as true the government's responses.

[00:25:48] Speaker 04:
Yes, but.

[00:25:48] Speaker 01:
So you want me to accept as true the supervisor's statement that you're the reason it's late, not me, in order to then say this is frivolous.

[00:25:58] Speaker 04:
I believe this actually gets back to your original hypothetical and admittedly the much easier question.

[00:26:02] Speaker 04:
When she submits documentation contradicting her own allegation, the board is going to accept that truth too, even if it contradicts her alleged disclosure.

[00:26:13] Speaker 04:
when she she submits a documentation or submits an email in support of her disclosure saying in response it doesn't matter when I submit this the board's going to accept that to be true even if it harms her allegation we're going to

[00:26:30] Speaker 04:
basically adjudicate, assuming everything she said it's true, whether or not it harms her alleged disclosure.

[00:26:36] Speaker 04:
And that email undermined her own claim that Ms.

[00:26:40] Speaker 04:
Hughes caused the missed deadline for Review 5358.

[00:26:44] Speaker 04:
If this court has no further questions, I ask that we refer on the decision of the board.

[00:27:12] Speaker 02:
I'll just add briefly, Your Honor, the government's argument that Ms.

[00:27:16] Speaker 02:
Tang was arguing that because the June 15th or June 16th PDUFA dates were late, that that was the violation.

[00:27:26] Speaker 02:
We cited the judge to the July 29, 2015 email from Dr. Tang to her supervisor, and that's in the appendix of page 121.

[00:27:40] Speaker 02:
And in there, it's July 29th, and Dr. Tang specifically says, this is paragraph three, additionally to date you have not yet responded to the revised memo that was sent to you on June 16th, 2015.

[00:27:57] Speaker 02:
In paragraph four she says, you should also be responsible for 538 because you used inconsistent standards and to date you have not responded to the IR draft that I sent to you on June 15th.

[00:28:12] Speaker 02:
This is July 29th that we're talking about.

[00:28:15] Speaker 02:
The government has no explanation for that and this is one of the disclosures.

[00:28:20] Speaker 01:
I and I There were two disclosures one was number 202 the other was number 5358 and

[00:28:41] Speaker 01:
But you're talking about the first one, then.

[00:28:43] Speaker 02:
I'm talking about both in her July 29th email to her supervisor.

[00:28:49] Speaker 02:
She raises the fact that even six weeks after she submitted whatever the government says was late from her, the government had still not

[00:29:03] Speaker 02:
acted upon those applications.

[00:29:06] Speaker 02:
And Dr. Tang is reasonably arguing that those were the violations.

[00:29:11] Speaker 02:
She's not arguing one day, she's arguing six weeks.

[00:29:17] Speaker 02:
And that's page 121, paragraphs three and four.

[00:29:20] Speaker 02:
And that's why I believe the judge could not simply accept the superior's arguments and find that the board lacked jurisdiction.

[00:29:41] Speaker 03:
The Honorable Court is adjourned from day to day.