[00:00:00] Speaker 03:
Good morning.

[00:00:01] Speaker 03:
May it please the court?

[00:00:02] Speaker 03:
This is Kelly Cruz on behalf of the petitioner, Dr. Nagar Hasami.

[00:00:08] Speaker 03:
The administrative judge... Proceed.

[00:00:11] Speaker 03:
I apologize.

[00:00:12] Speaker 05:
Proceed Ms.

[00:00:12] Speaker 05:
Cruz.

[00:00:14] Speaker 03:
The administrative judge erred in his application of the law under Dr. Hasami's case in finding that she failed to raise a non-frivolous allegation protected under the WPEA.

[00:00:25] Speaker 03:
The administrative judge relied upon the agency's factual assertions while simultaneously ruling that Dr. Hasami's facts were otherwise inadequate to support a prima facie case under the WPEA.

[00:00:38] Speaker 03:
The administrative judge should have applied a standard analogous to that of the summary judgment standard under which it would have been clear that Dr. Hasami had demonstrated the existence of disputes of material fact.

[00:00:52] Speaker 03:
And that is clear with this court's finding in Conn versus the Department of Justice.

[00:00:59] Speaker 03:
Thus, the court should find that the administrative judge's decision was arbitrary and capricious, unsupported by substantial evidence, and thus should be reversed.

[00:01:09] Speaker 05:
There is a... You're talking about the decision of no jurisdiction, is that right?

[00:01:15] Speaker 03:
That's correct.

[00:01:15] Speaker 05:
As being arbitrary and capricious?

[00:01:19] Speaker 03:
Correct, and unsupported by substantial evidence.

[00:01:22] Speaker 04:
Okay.

[00:01:24] Speaker 04:
Is it, is it, this is Judge Rainham.

[00:01:27] Speaker 04:
Is it your view, Counselor, that we should look at, um, whether or not a frivolous, um, allegation has been made or a non-frivolous allegation and look at that from the standard of sum of judgment?

[00:01:40] Speaker 04:
Did I hear you correctly?

[00:01:43] Speaker 03:
That's correct, Your Honor.

[00:01:44] Speaker 03:
Uh, this court found in the case of Conn Department versus Department of Justice,

[00:01:50] Speaker 03:
that the standards for determining whether a non-frivolous allegation exists as required to establish MSPB jurisdiction over an IRA appeal is analogous to that for the summary judgment standard, and thus Dr. Hasami must demonstrate the existence of a genuine issue of material fact.

[00:02:14] Speaker 03:
There is a distinction between the requirements for fail on the merits of a WPEA claim

[00:02:19] Speaker 03:
and the requirements for jurisdiction.

[00:02:21] Speaker 03:
To succeed on the merit, the employee must establish that the protected disclosure was a contributing factor in the adverse action.

[00:02:29] Speaker 03:
But the bar for establishing jurisdiction is significantly lower.

[00:02:33] Speaker 03:
The employee must merely establish a non-privilege allegation that she should get a protected disclosure.

[00:02:40] Speaker 03:
And the administrative judge here has placed the burden on Dr. Hasami to prove in her jurisdictional brief

[00:02:48] Speaker 03:
that her disclosures were correct, rather than holding her to the standard of a good faith, reasonable belief.

[00:02:56] Speaker 01:
Ms.

[00:02:57] Speaker 01:
Cruz, this is Jordan.

[00:02:58] Speaker 01:
Yes.

[00:02:59] Speaker 01:
So I have some questions for you.

[00:03:02] Speaker 01:
What do you think is your best record evidence to show that Hasami made it to support Ms.

[00:03:13] Speaker 01:
Hasami's claim

[00:03:15] Speaker 01:
that she made disclosures evidencing a substantial and specific danger to public health and safety.

[00:03:24] Speaker 01:
You know, I've read Dr. Hasami's affidavit.

[00:03:29] Speaker 01:
I'm wondering what else you have.

[00:03:30] Speaker 01:
And specifically, I want you to focus on, you know, all the stats she requires is evidence, you know, that her disclosures evidence

[00:03:42] Speaker 01:
a substantial and specific danger to public health and safety.

[00:03:46] Speaker 01:
And I think you've got two varieties of answers here.

[00:03:50] Speaker 01:
One is to the effect of there were not, there wasn't, there might not have been enough funds to support future patients.

[00:04:00] Speaker 01:
And the second one is perhaps having prolonged treatment would create some sort of medical conditions for veterans who are being treated.

[00:04:09] Speaker 01:
But I don't feel like I know the specifics of these issues based on the record.

[00:04:17] Speaker 01:
And I also am not sure if it's substantial danger to public health and safety.

[00:04:24] Speaker 01:
And that's what I'd like to see you to address.

[00:04:28] Speaker 01:
Thank you, Your Honor.

[00:04:31] Speaker 03:
Dr. Hasami disclosed on at least 17 occasions that Dr. Nichols,

[00:04:38] Speaker 03:
was prescribing older, more expensive drugs, Semperivir and Sopravir.

[00:04:46] Speaker 03:
These drugs must be taken for a longer period of time, weeks longer.

[00:04:50] Speaker 03:
They're also much more expensive.

[00:04:54] Speaker 03:
So you are correct in that Dr. Hasami was raising two different concerns.

[00:05:01] Speaker 03:
One was that the older drugs had a higher incidence of adverse side effects.

[00:05:07] Speaker 01:
And where do I see that in the record?

[00:05:10] Speaker 01:
Where is there something in the record that says that the older drug had a higher incidence of, I guess, adverse reactions?

[00:05:21] Speaker 03:
That is in the record pages 989 through 994, paragraphs 20 through 21, 28 through 29, and 38, Your Honor.

[00:05:38] Speaker 01:
Okay, thank you.

[00:05:40] Speaker 03:
And Dr. Hasami had knowledge of that because she is a doctor of pharmacy.

[00:05:45] Speaker 03:
And that is why the facility made the decision that they were going to start using the newer drugs, Yakira and Havarni, which can be given for a much shorter period of time, fewer side effects, and significantly less expensive, thus not depleting the funds.

[00:06:08] Speaker 03:
Agency argues that Dr. Nichols continued to treat people after a moratorium was put in place and thus they did not experience harm.

[00:06:21] Speaker 03:
But actually this also goes to show that Dr. Hasami had a good faith reasonable belief to disclose her concerns about Dr. Nichols prescribing practices.

[00:06:33] Speaker 03:
He continued to prescribe after the moratorium was put in place and with the older drugs.

[00:06:39] Speaker 03:
that had to be taken for a longer period of time and with more side effects.

[00:06:44] Speaker 03:
Her concern was immediate and it was great.

[00:06:49] Speaker 01:
Excuse me, this is Judge Stoll again.

[00:06:51] Speaker 01:
What side effects?

[00:06:53] Speaker 01:
Where are the side effects expressedly disclosed in the records?

[00:06:58] Speaker 01:
I just don't see it in the places where you've identified for me.

[00:07:01] Speaker 03:
I am not sure that Dr. Hasami testified specifically on what the side effects were, only that

[00:07:09] Speaker 03:
taking the drugs for weeks longer would expose them to greater side effects and that the newer drugs, Kira and Havarni, had fewer side effects than the older drugs.

[00:07:24] Speaker 01:
Okay.

[00:07:24] Speaker 01:
I don't see where it says the other drugs have fewer side effects in her declaration, which I think is where you're pointing me to.

[00:07:33] Speaker 01:
And I also don't see where it says what side effects will definitely happen or what they were.

[00:07:39] Speaker 01:
But also, is there anything in her declaration or anywhere else in the record that talks about the numbers of patients who would not receive treatment?

[00:07:54] Speaker 03:
Yes.

[00:07:54] Speaker 03:
Dr. Hasami did disclose that there was going to be a very significant budget shortfall in 2015 because Dr. Nichols started treating four patients

[00:08:07] Speaker 03:
at a cost of $280,000.

[00:08:09] Speaker 03:
And prior to this, the facility had projected total cost for treating 17 patients to be $290,645, meaning that Dr. Nichols was leaving the facility with $10,645 to treat 13 of the 17 patients.

[00:08:31] Speaker 03:
So this is not mere conjecture on Dr. Hasami's part.

[00:08:36] Speaker 03:
It's very precise and specific.

[00:08:39] Speaker 03:
And she was concerned that a failure to comply with the protocol that they had put in place would drain resources and could result in a denial of care.

[00:08:49] Speaker 03:
If the denial of care did not happen, that is excellent news.

[00:08:53] Speaker 03:
But all Dr. Hasami needs to show is that she had a good faith reasonable belief that it could happen.

[00:09:00] Speaker 03:
And given those numbers, it is entirely possible that there could have been a denial of care for 13 of the 17 patients.

[00:09:10] Speaker 01:
Isn't it what she has to show is that a person, a reasonable person in her shoes knowing what she knew would have had a reasonable expectation that that's the inquiry, right?

[00:09:23] Speaker 01:
We don't actually look at her subjective views.

[00:09:27] Speaker 01:
It's an objective standard.

[00:09:28] Speaker 01:
Isn't that correct?

[00:09:31] Speaker 03:
That is correct, Your Honor, and given those numbers, it would make sense that a reasonable person would understand that there could be very few funds left to treat the remaining patients.

[00:09:46] Speaker 03:
The agency argues that because Dr. Hasami is not a medical doctor, that she could not have had a reasonable belief that there was going to be a budget shortfall.

[00:09:59] Speaker 03:
But if you do look at the specific situation here, Dr. Hasami was part of the interdisciplinary team, and she helped develop these protocols.

[00:10:11] Speaker 03:
So she had a clear understanding of which drugs were less expensive, safer, and could be used for shorter periods of time.

[00:10:22] Speaker 01:
Council, I understand that.

[00:10:24] Speaker 01:
Oh, I wanted to ask you one other question, which is, what about the

[00:10:29] Speaker 01:
email that Dr. Hasami herself sent to the effect of, you know, vizin, I think it's called, has indicated that no patients will be left untreated.

[00:10:43] Speaker 01:
What about that email?

[00:10:44] Speaker 01:
I believe, if I recall correctly, it's at page A108 of the record.

[00:10:50] Speaker 03:
Your Honor, Dr. Hasami was bravely concerned about the situation and was doing some research to determine

[00:10:58] Speaker 03:
whether or not they were going to have to turn patients away.

[00:11:03] Speaker 03:
But during the course of these disclosures that she was making over time, she was disclosing that it is a possibility that we're going to have to turn patients away.

[00:11:14] Speaker 03:
We have very few funds left, and beyond that, these older drugs are not as safe, and we should not be using them, and this is a policy that the facility has put in place.

[00:11:26] Speaker 01:
Or what about this email?

[00:11:28] Speaker 01:
Again, it's at page A108, and she says, Mr. Cook assured me that we are going to have sufficient funding to support these patients' treatment terms.

[00:11:36] Speaker 01:
He specifically said we will not turn down any patients because of funding.

[00:11:41] Speaker 01:
He even said you can fault me about the funding.

[00:11:45] Speaker 01:
That seems to belie what you're saying right now.

[00:11:48] Speaker 01:
How do you respond to that?

[00:11:50] Speaker 03:
Your Honor, at a certain point, Dr. Hasami did learn

[00:11:54] Speaker 03:
that the patients would not be turned away.

[00:11:58] Speaker 03:
Before sending that email, she was unsure.

[00:12:00] Speaker 03:
That's why she was making her disclosures and that's why she was researching and keeping in mind that a whistleblower need not be correct.

[00:12:10] Speaker 03:
They need only have a good faith, reasonable belief that the harm is about to occur and she did at the time that she was researching to determine whether or not they were going to have to turn these patients away.

[00:12:22] Speaker 01:
I understand, but this is information that you have to take into account when you're saying, would a reasonable person, knowing what Dr. Hasami knows, believe that there was a danger to public health and safety?

[00:12:33] Speaker 01:
And this email, I guess, I'm still not sure how you're responding to it, except maybe that this was just her view at one point in time.

[00:12:45] Speaker 03:
That's correct, Your Honor.

[00:12:46] Speaker 03:
She was researching the situation.

[00:12:49] Speaker 03:
She was disclosing that patients were going to have to be turned away before she conducted the research.

[00:12:56] Speaker 03:
At a certain point, she was told by a member of the facilities administration that they would not be turned away.

[00:13:04] Speaker 03:
But it does not mean that she did not engage in protected conduct prior to that.

[00:13:11] Speaker 03:
I believe that's my time.

[00:13:15] Speaker 05:
Any questions or questions from Ms.

[00:13:19] Speaker 05:
Cruz?

[00:13:20] Speaker 05:
Judge Rainier, you had a question?

[00:13:22] Speaker 04:
Yes, I do.

[00:13:24] Speaker 04:
Please proceed.

[00:13:26] Speaker 04:
It appears to me that what we're talking about here is it's a legal question.

[00:13:32] Speaker 04:
And that's how we're going to look at non-frivolous allegations.

[00:13:35] Speaker 04:
What's the level of specificity of the allegation?

[00:13:40] Speaker 04:
And counselor, I asked you earlier because of your, I guess your apparent devotion to the case of Kahn versus the permanent justice will

[00:13:49] Speaker 04:
We said something to the effect that the standard for determining whether a nonfirmness disclosure has been made is analogous to a summary judgment.

[00:13:59] Speaker 04:
But we also have a number of other cases that say something a little bit different, like in the school versus merit systems, Johnson versus merit, Unis versus Department of Veterans Affairs.

[00:14:11] Speaker 04:
But we take a different take on this.

[00:14:15] Speaker 04:
For example, in school versus merit, we say that the

[00:14:19] Speaker 04:
proper evaluation of a not frivolous allegation is under a well-pleaded complaint rule.

[00:14:27] Speaker 04:
In Piccolo versus Merrick, we said that the allegations are sufficient if they're not vague, if they're not conclusory or facially insufficient.

[00:14:38] Speaker 04:
And it seems to me that what we're talking about is does the petitioner here get to the next step of a hearing of being heard

[00:14:49] Speaker 04:
and the sufficiency of the evidence at that point being enough.

[00:14:54] Speaker 04:
I'm concerned about your attachment to the standard that we should apply here is equal to a summary judgment standard.

[00:15:12] Speaker 03:
Thank you, Your Honor.

[00:15:13] Speaker 03:
In this particular case, the administrative judge asked the parties to brief jurisdiction after discovery had closed, which is why I am saying that this case is more similar to a summary judgment standard in that the parties were not filing their briefs just on what was within the four corners of the complaint.

[00:15:41] Speaker 03:
but also including evidence that had been collected during discovery.

[00:15:46] Speaker 03:
Your Honor, under the standard of, that's more similar, I would say, to a motion to dismiss standard, Dr. Hasami has still met her burden in that her initial complaint disclosed the violations of law, rule, and regulation, gross waste of funds, gross mismanagement,

[00:16:08] Speaker 03:
abuse of authority and danger to public health and safety, recognizing that out of those, Dr. Hasami must only really demonstrate that she engaged and protected under one of those standards.

[00:16:22] Speaker 03:
And for those reasons, we ask you to reverse the administrative judge's decision and allow her case to proceed to a hearing on the merits.

[00:16:32] Speaker 05:
Okay.

[00:16:34] Speaker 05:
Thank you.

[00:16:34] Speaker 05:
We'll show you the battle tab and let's hear from the other side.

[00:16:38] Speaker 05:
Mr. Gallagher.

[00:16:40] Speaker 00:
Thank you.

[00:16:41] Speaker 00:
And may it please the court, Jeffrey Gallagher, for the Merit Systems Protection Board.

[00:16:45] Speaker 00:
It really would not matter what standard the court applies, whether it's summary judgment, which is in the court's precedent in Kahn and other cases, or even if the court changed the standard to more of a motion to dismiss standard, that would not.

[00:17:01] Speaker 00:
affect the outcome here because what the administrative judge found was that these allegations were mere conjecture.

[00:17:09] Speaker 00:
And under the MSPB's regulations, MSPB defines a non-frivolous allegation as something that's more than conclusory.

[00:17:18] Speaker 00:
Here, these allegations do not meet any of the categories of disclosures protected under the Whistle Board Protection Act.

[00:17:27] Speaker 05:
Mr. Garger, is it clear that there was

[00:17:30] Speaker 05:
nonetheless retaliation for the allegations?

[00:17:35] Speaker 00:
The administrative judge did not address the retaliation because the first finding that he was required to make to find jurisdiction was that there were disclosures that were protected under the Protection Act.

[00:17:49] Speaker 00:
And he found that there were no protected disclosures here, so he did not go on to the retaliation issue.

[00:17:58] Speaker 01:
Council, does that mean that if we did disagree with the administrative judge that we still have to remand for the administrative judge then to consider that other factor for jurisdiction?

[00:18:13] Speaker 01:
Is that how it works?

[00:18:15] Speaker 00:
Yes, that's exactly how it would work.

[00:18:18] Speaker 00:
If the court disagreed with the judge about

[00:18:22] Speaker 00:
disclosures and found that Fischer had made some protective disclosures, then a remand would be appropriate.

[00:18:31] Speaker 04:
But the remand would be for a hearing, correct?

[00:18:39] Speaker 00:
That's a little complicated because at this point there hasn't been a finding on personal actions, but assuming that there are personal actions here that were taken in retaliation for protected disclosures, then yes, it would definitely go to a hearing to decide the merits.

[00:18:58] Speaker 00:
The reason the administrative judge found that these allegations were mere conjecture is that there are no

[00:19:06] Speaker 00:
really no specifics that support her allegations.

[00:19:10] Speaker 00:
For example, she admits that she has no information to support her allegation that patients were put at risk under Dr. Nichols' care.

[00:19:20] Speaker 05:
She also... But aren't the facts undisputed in terms of what was prescribed and the compliance of the apparent compliance with the instruction to change the medication?

[00:19:39] Speaker 00:
Yes, the facts are undisputed.

[00:19:42] Speaker 00:
There are contemporaneous emails that the petitioner does not dispute.

[00:19:47] Speaker 00:
I know she did say in her argument, the council said in her argument that there were some disputed facts, but she's not identified those facts she means.

[00:19:58] Speaker 05:
However, as to... Well, and that the government doesn't dispute.

[00:20:02] Speaker 05:
I mean, it's not for her to dispute her allegations.

[00:20:07] Speaker 05:
My question was,

[00:20:08] Speaker 05:
really was in terms of the foundational facts that she refers to, whether the government's position is that there was a dispute as to those facts.

[00:20:23] Speaker 00:
No, there's no dispute and we have, you know, if you're talking about the so-called moratorium, there are emails, there are a lot of emails about that subject in the record that are not disputed.

[00:20:36] Speaker 00:
At the time that this moratorium was going on, there was only one drug available at the medical center and that was the SNS which was prescribed by Dr. Nichols.

[00:20:47] Speaker 00:
So, he wasn't, he didn't really have a choice if he was going to treat these patients.

[00:20:52] Speaker 00:
The only choice at the time was SNS or as the petitioner seemed to suggest, wait three weeks.

[00:21:03] Speaker 05:
that a different drug be used?

[00:21:05] Speaker 05:
That drug was not available through the VA?

[00:21:11] Speaker 00:
Yes.

[00:21:11] Speaker 00:
I'm saying that at the time of the petitioner's complaint.

[00:21:17] Speaker 05:
I mean, is that in the record?

[00:21:18] Speaker 05:
I don't remember seeing that.

[00:21:22] Speaker 00:
Yes.

[00:21:22] Speaker 00:
It's in the record.

[00:21:23] Speaker 00:
As far as the availability of the drug, that's in the record.

[00:21:31] Speaker 00:
It became available at, they said it would become available at the end of a three-week pause on new starts.

[00:21:39] Speaker 00:
That's in Dr. Hasami's own email on page 965 of the appendix that she writes, it was decided to hold off on new starts for February only.

[00:21:57] Speaker 00:
So during that time, they were holding off on new patients, but existing patients would be treated by the drug that they had available, SNS.

[00:22:08] Speaker 00:
And so in the email, Dr. Hassemi questions what Dr. Nichols is doing by continuing to treat four patients with the SNS drug.

[00:22:20] Speaker 01:
Does her email say Dr. Nichols started for patients on the SNF drug?

[00:22:26] Speaker 01:
It doesn't say continued to treat.

[00:22:29] Speaker 01:
It says started.

[00:22:31] Speaker 00:
Yes.

[00:22:32] Speaker 00:
Later Dr. Bennett looks into it and finds that all but one of the patients that Dr. Nichols was treating had been promised treatment prior to this decision to halt new starts.

[00:22:46] Speaker 00:
But even as to that one patient, the reason that these allegations are so vague is Dr. Hasemi never explains why this was a bad clinical decision by Dr. Nichols to treat these patients because she never addressed-

[00:23:05] Speaker 01:
Council, why does she have to explain why?

[00:23:08] Speaker 01:
I mean, under the statute, doesn't it just say, could a reasonable person with her knowledge reasonably believe that this disclosure evidences one of the statutory categories?

[00:23:20] Speaker 01:
Why does she have to, you know, interconnect the pieces of the puzzle, if you will?

[00:23:25] Speaker 00:
Well, of course it depends.

[00:23:27] Speaker 00:
To satisfy a category under the WPA, it depends which category we're talking about.

[00:23:34] Speaker 04:
What about the category of waste or danger to the public health?

[00:23:40] Speaker 04:
Are you saying that it's your position that over prescription drugs can never be waste or a danger to public health?

[00:23:51] Speaker 00:
Well, I don't know that she's alleging that he is endangering his patients by using SNS, which was, you know, an approved drug that was already in use.

[00:24:01] Speaker 04:
I don't mean a patient.

[00:24:03] Speaker 04:
I mean a waste in general or a danger to public health in general.

[00:24:09] Speaker 00:
Okay.

[00:24:10] Speaker 00:
So those are two different categories.

[00:24:12] Speaker 00:
As for a danger, her email doesn't say it's a danger.

[00:24:17] Speaker 00:
It says that, you know, it's focused on the cost involved, that by waiting three weeks and not giving these patients medication, it will save money.

[00:24:27] Speaker 00:
So in the email at page 965, she doesn't identify any dangers.

[00:24:34] Speaker 00:
And as far as gross waste of funds, yes, the cost, just talking about the cost is not sufficient to satisfy that category.

[00:24:44] Speaker 00:
She also has to address the benefit side of the equation and whether, because the question isn't just how much is being spent, that's just,

[00:24:52] Speaker 00:
You know, that's just a label for the information.

[00:24:55] Speaker 00:
But what's important to know is how is that cost significantly out of proportion to the benefits that are reasonably expected?

[00:25:03] Speaker 01:
This is Judge Stoll.

[00:25:06] Speaker 01:
Let's say, let's hypothetically say that Dr. Nichols started for patients on old drugs and actually it was a million dollars or 10 million dollars, some amount.

[00:25:21] Speaker 01:
Are you saying that she would have to go further and say, and this is just, this is a debatable expenditure that is significantly out of proportion to the benefit?

[00:25:33] Speaker 01:
Does she have to say those magic words?

[00:25:36] Speaker 01:
I mean, why, again, I'm going back to the statute itself that suggests that a reasonable person in her position knowing what she knows has to have

[00:25:48] Speaker 01:
think that her disclosure evidences a gross waste of funds or evidences a substantial and specific danger to public health.

[00:25:58] Speaker 01:
She doesn't have to say it.

[00:26:00] Speaker 01:
So I would prefer that you sit here and talk to us about why it is that this doesn't evidence these statutory categories.

[00:26:09] Speaker 01:
Could you address why the disclosure at page A965 doesn't evidence one of the statutory categories that she's identified?

[00:26:18] Speaker 00:
Well, the only category that email would evidence would be gross waste of funds.

[00:26:29] Speaker 00:
And it doesn't meet that because she doesn't go on to address basically what Dr. Nichols is doing wrong.

[00:26:37] Speaker 00:
other than the fact that this costs money.

[00:26:40] Speaker 00:
But he, Dr. Nichols has, he's in the clinic and he's the one making the decisions about how best to treat patients.

[00:26:47] Speaker 00:
And throughout this record, there is plenty of times the policy is stated that it's up to the clinician to decide the proper treatment, the medication.

[00:27:01] Speaker 00:
You know, it's stated on, for example, page 95, antiviral treatment should be provided for any patient

[00:27:07] Speaker 00:
for whom you believe treatment is urgently needed.

[00:27:10] Speaker 00:
So I think to make an allegation that's specific enough, you have to address why this treatment isn't needed and why it's proper to wait another three weeks to treat these patients.

[00:27:24] Speaker 00:
And that's something that's never raised.

[00:27:26] Speaker 00:
Simply saying how much something costs is not sufficient

[00:27:29] Speaker 00:
The numbers here in terms of cost.

[00:27:31] Speaker 01:
Can I interrupt you again?

[00:27:32] Speaker 01:
What about my hypothetical I asked you?

[00:27:34] Speaker 01:
I know I asked you a multifaceted question, but I asked you a hypothetical of let's say hypothetically that Dr. Nichols started four patients, he charged a million dollars, even though the cost of the drugs is $208,000.

[00:27:48] Speaker 01:
Would she have actually needed to say more than that?

[00:27:53] Speaker 00:
Yes, she needs to address, there needs to be some context.

[00:27:57] Speaker 00:
She needs to address the benefit side of the equation.

[00:28:00] Speaker 00:
The numbers here are already extraordinary.

[00:28:02] Speaker 00:
So, you know, a million dollars, well, Congress appropriated billions of dollars for this project with the goal of not just to give... With my hypothetical.

[00:28:14] Speaker 01:
Maybe you missed my hypothetical.

[00:28:15] Speaker 01:
Okay, I thought it was about if it was...

[00:28:17] Speaker 01:
My hypothetical was assuming that the drugs really only cost $208,000, but somehow he got it on, got paid $100 million or something like this.

[00:28:30] Speaker 01:
Wouldn't that loan be enough to evidence gross waste of funds?

[00:28:38] Speaker 00:
So if I understand the question, it's if the drugs he were using were just disproportionately more expensive than the drugs.

[00:28:47] Speaker 01:
Oh, no.

[00:28:47] Speaker 01:
My hypothetical is what if he was somehow, this again is just a hypothetical, but if he was somehow had charged the government $100 million, the VA $100 million for drugs that only cost $208,000.

[00:29:05] Speaker 00:
Yeah, that sounds like that would be wrongdoing.

[00:29:09] Speaker 01:
And she wouldn't have to explain it, right?

[00:29:13] Speaker 00:
If she said that he was spending that much money on drugs, of course, in this situation, the drugs were being dispensed by the pharmacy and they were obtained from the VA through the VA's contracts with

[00:29:28] Speaker 00:
pharmaceutical company, so the prices were set.

[00:29:32] Speaker 00:
But if somehow he was able to charge money for the drugs, that would be wrongdoing.

[00:29:40] Speaker 00:
That's not really, I would say that's not really analogous to what's happening here where... I understand.

[00:29:46] Speaker 01:
I just was trying to get at the point that she doesn't have to explain it if a reasonable person in her shoes, knowing what she knows, would know what her disclosure evidenced.

[00:29:56] Speaker 01:
Correct?

[00:29:57] Speaker 01:
that it evidence the gross waste of funds?

[00:30:01] Speaker 00:
Yes, under those circumstances, yes.

[00:30:06] Speaker 00:
But simply, to simply say that, well, if you wait three weeks, we can save some money.

[00:30:13] Speaker 00:
The problem with that is that it doesn't address the actual patients involved, the specific needs of the patients.

[00:30:20] Speaker 00:
And the purpose here is not just to give the patients medicine, it's to actually cure the patients.

[00:30:26] Speaker 00:
So in some cases,

[00:30:27] Speaker 00:
Dr. Nichols did extended therapy beyond the initial course of treatment.

[00:30:34] Speaker 00:
And Dr. Sami objected to that.

[00:30:38] Speaker 04:
But the question here is not harm done to the specific individual.

[00:30:44] Speaker 04:
It deals with the overspending.

[00:30:49] Speaker 04:
And from the record where I saw is that she did tell quite a few people about the

[00:30:57] Speaker 04:
overspending of the hepatitis funds.

[00:31:00] Speaker 04:
She told Dr. Seale, members of the center, Dr. Fleer, Dr. Bennett, the chief financial officer, Mrs. Schumelmaker, the associate director.

[00:31:10] Speaker 04:
She went around and told all of them that there was overspending going on.

[00:31:14] Speaker 04:
And why is it that sufficient, a sufficient allegation?

[00:31:20] Speaker 04:
It seems to me that you're asking her to also prove the adverse or the opposition to her own case.

[00:31:28] Speaker 00:
Well, no, the standard is whether the spending was out of proportion to the benefit reasonably expected to be provided.

[00:31:35] Speaker 00:
And that's what she hasn't addressed.

[00:31:37] Speaker 00:
I mean, just saying how much things cost, that's just stating a conclusion.

[00:31:41] Speaker 00:
They all knew how much things cost.

[00:31:42] Speaker 00:
According to the petitioner, every time a pill was dispensed, they knew that, and they knew how much it cost.

[00:31:49] Speaker 00:
So just talking about that alone is just, as the administrative judge said, it's just conjecture.

[00:31:58] Speaker 00:
Just to finish, she also admits that she had no information that patients were ever denied medicine due to budget issues.

[00:32:05] Speaker 00:
So that's a key admission at page 86 of the appendix.

[00:32:10] Speaker 05:
Okay.

[00:32:11] Speaker 05:
Any more questions for Ms.

[00:32:12] Speaker 05:
Roker?

[00:32:15] Speaker 05:
Well, then we'll hear rebuttal from Ms.

[00:32:17] Speaker 05:
Cruz.

[00:32:18] Speaker 05:
Three minutes.

[00:32:21] Speaker 03:
Thank you, Your Honor.

[00:32:23] Speaker 03:
To address a question that came up during the MSP's argument, I will note that although the administrative judge did not come to a decision on whether or not there was an adverse action, it is in the record that Dr. Hasami received an improper disciplinary action and an improper reassignment or transfer.

[00:32:48] Speaker 02:
That's not something that the administrative judge addressed.

[00:32:52] Speaker 02:
Ms.

[00:32:56] Speaker 01:
Cruz, this is Judge Stoll.

[00:32:57] Speaker 01:
I just want to ask you one quick question.

[00:33:00] Speaker 01:
What evidence in the record shows that the expenditure was significantly out of proportion to the benefit reasonably expected to accrue to the government?

[00:33:12] Speaker 03:
Dr. Hasami, in her emails and in her affidavits, testified on the actual numbers of how

[00:33:23] Speaker 03:
significantly more expensive it was to continue to use the older SNS drugs.

[00:33:30] Speaker 03:
She expressed concern on how long the patients needed to remain on these drugs.

[00:33:36] Speaker 03:
Therefore, it was a less effective treatment.

[00:33:40] Speaker 03:
And also, Your Honor, to back to a question that you asked before about the point at which Dr. Hasami asked for assurances that no

[00:33:51] Speaker 03:
Patients are going to be turned away.

[00:33:54] Speaker 03:
Protected disclosures take place over a significant period of time.

[00:34:01] Speaker 03:
Today we've discussed a lot of what happened during the moratorium in February 2015, but Dr. Hasami started making disclosures about Dr. Nichols prescribing practices in December 2014 and continued to do so until November 2016.

[00:34:22] Speaker 03:
which I think might explain why at a certain point she researched and thought what she hoped to be assurances that no patients were going to be turned away.

[00:34:39] Speaker 05:
Okay.

[00:34:40] Speaker 05:
Any more questions from last comment, Ms.

[00:34:44] Speaker 03:
Cruz?

[00:34:49] Speaker 03:
I don't believe so, Your Honor.

[00:34:50] Speaker 03:
If there are no further questions, I see the remainder of my time.

[00:34:55] Speaker 05:
Okay.

[00:34:56] Speaker 05:
Thank you.

[00:34:56] Speaker 05:
Thank you both.

[00:34:57] Speaker 05:
The case is taken under submission.

[00:35:00] Speaker 05:
That concludes this panel's arguments for this morning.

[00:35:05] Speaker 00:
The honorable court is adjourned until tomorrow morning at 10 a.m.