[00:00:01] Speaker 03:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:06] Speaker 03:
God save the United States and its Honorable Court.

[00:00:11] Speaker 01:
I now call case number 191990, Oliver, Oliver versus GBA.

[00:00:20] Speaker 01:
Ms.

[00:00:20] Speaker 01:
Seeluck, whenever you're ready to proceed, we're ready.

[00:00:24] Speaker 00:
Thank you, Your Honor.

[00:00:25] Speaker 00:
Good morning.

[00:00:26] Speaker 00:
May it please the court?

[00:00:27] Speaker 00:
My name is Jennifer Seelig, counsel for appellant Stephen Oliva.

[00:00:32] Speaker 00:
It is undisputed in this case that Mr. Oliva is a government whistleblower who was retaliated against and is entitled to damages for such retaliation.

[00:00:42] Speaker 05:
The only question... This is Judge Mayer.

[00:00:45] Speaker 05:
I have a preliminary question for you before you get into your argument.

[00:00:49] Speaker 05:
Yes, Your Honor.

[00:00:50] Speaker 05:
You argued a case last month

[00:00:53] Speaker 05:
was an appeal from the Claims Court.

[00:00:57] Speaker 05:
And it seems to me that the remedies that are at issue in both of these cases are the same, even though you have a different theory.

[00:01:06] Speaker 05:
Isn't there a conflict?

[00:01:10] Speaker 05:
And isn't the other case in violation of the Faustall case in the Supreme Court

[00:01:24] Speaker 00:
You're correct, Your Honor.

[00:01:25] Speaker 00:
There is a second case that was argued last month and the claims at issue in that case related to a breach of contract that is the contract being at issue in this case as well.

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However, there are different damages at issue in the breach of contract case.

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Mr. Oliva initially sought compensation at the MSP.

[00:01:48] Speaker 02:
You've agreed in that other case, and I assume you agree here, that he can't recover in each case for the same damages.

[00:01:55] Speaker 02:
He can't recover twice, right?

[00:01:57] Speaker 00:
That's correct.

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He has claimed he filed the breach of contract case as a result of the decision that was reached by the board here.

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where the board stated the breach of the agreement is more accurately the proximate cause of his non-selection rather than the reprimand itself.

[00:02:18] Speaker 00:
If he recovers for the relocation incentives for the El Paso position here, we agree that he is not entitled to recover those same damages in the breach of contract case.

[00:02:34] Speaker 05:
Is it that this case is not the prevailing case, the predominant case, that Faustos says these civil service cases all should be in the board and not in the courts.

[00:02:46] Speaker 05:
So shouldn't this case be the dominating case?

[00:02:56] Speaker 00:
The issue here is that the government is trying to argue that Mr. Oliva is not entitled to these damages in either case.

[00:03:04] Speaker 02:
Your answer to the question is that the Court of Federal Claims case is a breach of contract case based on a breach of the settlement agreement, whereas here it's the civil service violation that's at issue.

[00:03:16] Speaker 00:
That's correct.

[00:03:18] Speaker 00:
Yes, and the reasoning for it is because of the different administrative jurisdictions, which is why Mr. Olivo was required to file a second action in the Court of Federal Claims because of the breach of contract issue, whereas here he is seeking for the damages as a result of his original whistleblower claim.

[00:03:38] Speaker 01:
So what are the damages you're seeking in the Court of Claims case based on breach of contract, the same

[00:03:45] Speaker 01:
25% or whatever the travel incentive that you're seeking here?

[00:03:49] Speaker 00:
Yes.

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So the difference here is that Mr. Oliva is seeking, in this case, the emotional damages as a result of the letter of reprimand remaining in his file and for the relocation incentive in the El Paso case, whereas in the breach of contract case, he is also seeking the El Paso relocation incentive due to the fact that the board

[00:04:15] Speaker 00:
opined that those damages were more of a proximate cause.

[00:04:21] Speaker 00:
No, I understand that.

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But what else are you seeking?

[00:04:23] Speaker 01:
And here you're seeking the sick leave and the pain and suffering damages.

[00:04:28] Speaker 01:
You said in the court of claims you're seeking this relocation thing.

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Anything else in terms of the damages you're seeking in the breach of contract claim?

[00:04:37] Speaker 00:
Yes, Your Honor.

[00:04:38] Speaker 00:
And there was also a second breach at issue in

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The breach of contract case, Mr. Oliva had applied for another position in Greenville, and the contract was breached in relation to that position.

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And Mr. Oliva was eventually terminated, and he is seeking for his lost salary.

[00:05:07] Speaker 01:
Okay.

[00:05:08] Speaker 01:
You cited a Supreme Court case.

[00:05:11] Speaker 01:
Did you respond to that, or did you want to respond to that?

[00:05:16] Speaker 00:
I apologize, Your Honors.

[00:05:17] Speaker 00:
I am not familiar with this particular Supreme Court case.

[00:05:23] Speaker 00:
Would you give me the pleasure of repeating the case?

[00:05:30] Speaker 05:
The case was in the United States v. Postol, where the Supreme Court said that the

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any of these civil service matters remain solely in the jurisdiction of the board and if not the courts.

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And so the issue in this case is that we're seeking damages as a result of the retaliation and all of the damages that follow from any foreseeable consequences

[00:06:09] Speaker 00:
as a result of that retaliation.

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The second case, the breach of contract case, was only filed as a result of the board's decision here saying that the breach was the proximate cause for Mr. Oliva's relocation incentive damages.

[00:06:28] Speaker 01:
Now the district court, the administrative judge here made a lot of factual findings with regard to the selection for the position.

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and also with regard to the pain and suffering damages that were incurred.

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What's our standard of review for that?

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The standard of review is for a substantial evidence standard.

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However, the issue here is that there is no substantial evidence to support

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the board's factual findings.

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First, one of the board's factual findings was that Mr. Oliva was only harmed for a three-week period.

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However, the letter of reprimand was not expunged until April 17, 2015.

[00:07:18] Speaker 01:
Let me ask you about that.

[00:07:21] Speaker 01:
I mean, there's a little gap, and I don't know whether this is in the record.

[00:07:25] Speaker 01:
But what's probative, it seems to me, is not necessarily only when the letter was expunged.

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but when he found out that the letter had not been expunged.

[00:07:36] Speaker 01:
So do we know when that is?

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Because each letter may not have been expunged.

[00:07:40] Speaker 01:
If he didn't know that, then it doesn't seem to me there will be a nexus between the pain and suffering that that caused.

[00:07:51] Speaker 00:
That's correct.

[00:07:53] Speaker 00:
Mr. Oliva found out about the letter of the letter reprimand remaining in his file.

[00:07:58] Speaker 00:
due to his following up about the loss of the El Paso physician in March 2015.

[00:08:04] Speaker 01:
There was then a letter... So, in March... So, I mean, except that... And that's somewhere in the record, I assume.

[00:08:11] Speaker 01:
So, the time in which he incurred pain and suffering because of the remainder of the reprimand letter being in his file would have been from some period in March and April, right?

[00:08:26] Speaker 01:
a matter of weeks, I assume?

[00:08:30] Speaker 00:
It's not only that he knew about the letter of reprimand still remaining in his file, but also the impact it had in being in his file, being able to be accessed by anyone in the agency any time he was being looked up, any time he inquired about a position.

[00:08:47] Speaker 00:
So the damages that he had suffered, he had continued to suffer emotional pain as a result of knowing that this

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letter was in his file, and he did not receive notice that it was expunged, that there was a letter that was sent.

[00:09:06] Speaker 01:
Hold on.

[00:09:06] Speaker 01:
I'm trying to interrupt you.

[00:09:08] Speaker 01:
Sorry.

[00:09:09] Speaker 01:
So he found out that the letter had not been expunged in March, and it was actually expunged in April, right?

[00:09:18] Speaker 01:
So we're talking about a period between March and April?

[00:09:21] Speaker 00:
I believe that Mr. Oliva knew that the letter was still on his file,

[00:09:26] Speaker 00:
But I would have to, I don't believe that there is distinct evidence in the record that, you know, of any kind of moment where he still found out that the letter was still on his file.

[00:09:41] Speaker 00:
It was just that he knew definitely it was still in his file in March when he applied for the El Paso position and found out that

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the letter of reprimand was disclosed at that time.

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And so the letter had, you know, remained on his file since its issuance through April.

[00:10:01] Speaker 01:
Right.

[00:10:02] Speaker 01:
So am I right?

[00:10:03] Speaker 01:
Just again, I'm waiting for kind of a yes or no answer.

[00:10:06] Speaker 01:
So based on the record evidence, the best we can discern is he found out about the record, the reprimand not having been expunged sometime in March, and it indeed was expunged in April.

[00:10:19] Speaker 01:
that a fair assessment of the record?

[00:10:23] Speaker 00:
I believe it's fair to say yes, that he did know at least in March that it still had not been expunged.

[00:10:31] Speaker 00:
But I am not sure at this time without consulting with my client whether he had continuously knew about the letter for the entire period, which I believe

[00:10:48] Speaker 00:
Anyone with access to his file at the agency would have known that the letter would still remain on his file continuously from the day it issued through April.

[00:11:01] Speaker 00:
So I don't believe that his damages would be limited to just, you know, his knowledge from March to April, Your Honor.

[00:11:14] Speaker 01:
With regard to the pain and suffering amount, and this again goes to kind of our standard of review, you're seeking, I don't recall, is it, the judge awarded $3,500, correct?

[00:11:28] Speaker 01:
That's correct.

[00:11:29] Speaker 01:
And what are you, you're seeking $25,000 or $17,000?

[00:11:33] Speaker 01:
I can't remember.

[00:11:35] Speaker 00:
Based on the court's calculation, for calculating the amount through April 17th, the amount is calculated to be $16,500.

[00:11:45] Speaker 00:
Okay.

[00:11:46] Speaker 01:
So what standard of review was an appellate court supposed to apply in assessing whether or not the judge erred in awarding $3,500 versus $17,000?

[00:12:02] Speaker 00:
I believe that the standard of review here is

[00:12:05] Speaker 00:
both the arbitrary standard and the substantial evidence standard because the $3,500 award was explained by the board of being limited to that three-week period, which we know is a mistake of fact because on Appendix 15, the board stated that the agency rescinded the January

[00:12:34] Speaker 00:
2015 letter of reprimand only three weeks after it issued.

[00:12:38] Speaker 00:
However, it was not rescinded until April.

[00:12:44] Speaker 01:
Yeah, okay.

[00:12:48] Speaker 01:
I think I heard the bell.

[00:12:49] Speaker 01:
Did you hear the bell?

[00:12:55] Speaker 00:
I did not, but I am happy to preserve my remaining time for rebuttal.

[00:13:02] Speaker 00:
Patrick?

[00:13:03] Speaker 03:
I rang the bell at five minutes.

[00:13:06] Speaker 03:
There is now two and a half minutes left.

[00:13:09] Speaker 01:
OK.

[00:13:09] Speaker 01:
Well, we'll restore your rebuttal, but if my colleagues might have more questions, because or nothing.

[00:13:17] Speaker 01:
Not now.

[00:13:17] Speaker 01:
All right.

[00:13:19] Speaker 01:
All right.

[00:13:19] Speaker 01:
We'll hear from the government.

[00:13:21] Speaker 01:
Thank you very much.

[00:13:29] Speaker 04:
Good morning, Your Honors, and may it please the court

[00:13:31] Speaker 04:
The administrative judge's damages at work here is supported by substantial evidence.

[00:13:35] Speaker 02:
Let me ask you a question.

[00:13:39] Speaker 02:
The serious logical flaw in the reasoning of the administrative judge here with respect to causation and the loss of the El Paso position, and that is that the HA said that

[00:13:57] Speaker 02:
Nancy knew about the letter of reprimand, but he testified that it didn't have an effect, but denied that he knew about it.

[00:14:14] Speaker 02:
And what the AJ says is, well, just because Nancy testified inaccurately on one point doesn't mean testimony on another point.

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And of course, the cases do support that notion.

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The problem here is that Dancy's inaccurate testimony was only on a single point.

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And that is whether the letter of reprimand influenced the selection.

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And his testimony is it didn't influence the selection because I didn't know about it.

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AJ finds that that testimony was inaccurate.

[00:14:52] Speaker 02:
He did know about it.

[00:14:54] Speaker 02:
So I'm not quite understanding how the judge can say, oh, well, Dancy testified that it didn't have any effect because he didn't know about it.

[00:15:05] Speaker 02:
I don't believe the testimony is correct that he didn't know about it, but somehow I still believe that he wasn't influenced by it.

[00:15:15] Speaker 02:
How can that be logically correct?

[00:15:20] Speaker 04:
Your Honor, first there are other hurdles that Mr. Lieber has to overcome on the relocation bonus.

[00:15:25] Speaker 02:
Yeah, I understand, but that's my question.

[00:15:28] Speaker 04:
But yes, so I'm trying to find the page where you're referring to the administrative judge's opinion, but there's basically testimony, there's not testimony from Dancy where he was being asked questions.

[00:15:43] Speaker 04:
He just orally earned some sort of deposition.

[00:15:46] Speaker 04:
He responded to a questionnaire.

[00:15:48] Speaker 02:
His sole testimony is

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that the letter of reprimand didn't affect the selection because I didn't know about it.

[00:15:55] Speaker 02:
And the admittance judge finds that that was not true, that he did know about it, right?

[00:16:01] Speaker 03:
Right.

[00:16:02] Speaker 02:
So how can the judge then go on to believe that it didn't affect the decision-making process when the only reason that was given for it not affecting the process was he didn't know about it.

[00:16:19] Speaker 04:
Your Honor, the first point is correct.

[00:16:22] Speaker 04:
He said he didn't know about it.

[00:16:23] Speaker 04:
The second point, I think the judge credited the testimony, the written testimony of Ms.

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Harbin, who said, yes, I told them about it.

[00:16:31] Speaker 04:
So there's an apparent conflict there.

[00:16:33] Speaker 04:
But what Ms.

[00:16:35] Speaker 04:
Harbin said is that she told them about it, but she also said that it was a quote unquote bogus reprimand or based on bogus facts.

[00:16:45] Speaker 04:
and that it shouldn't have been there.

[00:16:48] Speaker 02:
You're not addressing my question.

[00:16:51] Speaker 02:
My question is how at one and the same time can the judge disbelieve his testimony that he didn't know about it and say that he did know about it and then say that his testimony that he didn't know about it is sufficient to sustain the lack of connection between the letter of reprimand and is not getting the job.

[00:17:12] Speaker 02:
That's not consistent, is it?

[00:17:15] Speaker 04:
Well, the judge didn't just use that inconsistency.

[00:17:20] Speaker 04:
The judge looked at the numerical ratings.

[00:17:22] Speaker 04:
I think that was the driving determinant there, because there were five selection panels, and all of them had rated the person who was ultimately selected higher, with the exception of one union panel, or the main leadership panel rated the two candidates equally.

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And so the judge looked at those in deciding that there was

[00:17:43] Speaker 02:
Dancy was on the leadership panel, right?

[00:17:48] Speaker 04:
Dancy was in charge of the process.

[00:17:49] Speaker 04:
I don't believe Dancy was on the leadership panel.

[00:17:54] Speaker 02:
The way I read the record, he says the acting associate director, which is him, was on the leadership panel.

[00:18:01] Speaker 02:
So if, in fact, he was influenced by the letter of reprimand, that could have influenced the leadership panel.

[00:18:10] Speaker 04:
There's also no indication in the record, Your Honor,

[00:18:14] Speaker 04:
that the letter of reprimand was disclosed before the scores were tabulated.

[00:18:19] Speaker 04:
And in fact, I think there is testimony.

[00:18:22] Speaker 02:
That's not correct.

[00:18:23] Speaker 02:
There was a couple of week period there between the advice to DNC about the letter of reprimand and the evaluation.

[00:18:39] Speaker 02:
I mean, we seem to have

[00:18:41] Speaker 02:
a finding of fact here, which is internally inconsistent.

[00:18:45] Speaker 02:
Do you agree that it's internally inconsistent?

[00:18:52] Speaker 04:
Not necessarily, Your Honor.

[00:18:53] Speaker 04:
I think that the finding of fact is twofold.

[00:18:55] Speaker 04:
One is that Dancy said he didn't know about the letter of reprimand.

[00:18:59] Speaker 04:
And two is that... The second finding, I guess, is twofold.

[00:19:06] Speaker 04:
One is that Ms.

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Harbin told him about it, and that's undisputed.

[00:19:09] Speaker 04:
And two is that it didn't affect his decision.

[00:19:13] Speaker 04:
Your Honor is suggesting that that second finding is inconsistent with the first.

[00:19:17] Speaker 04:
Is that correct?

[00:19:19] Speaker 02:
Yeah, and the only reason he gave for it not affecting his decision is he didn't know about it, which has been found to be false.

[00:19:30] Speaker 04:
And I think the explanation for that is the one provided by Ms.

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Harbin in that when she told him about it, she told him that that was a bogus letter of reprimand and it had been removed from the file.

[00:19:42] Speaker 04:
So he didn't register it as an actual letter of reprimand that needed to be taken into account.

[00:19:48] Speaker 02:
I think that is a plausible explanation for... Sure, it's a plausible explanation, but it's not the one he gave.

[00:19:55] Speaker 02:
The explanation he gave is I didn't know about it, which has been found to be false.

[00:20:03] Speaker 04:
Right, but that doesn't mean, that could mean that he just didn't, he did not register when it was told to him by Ms.

[00:20:10] Speaker 04:
Harbin during the process.

[00:20:14] Speaker 01:
Well, can I go back to, I mean, one of the predicates is that, I mean, I think they're, I'm looking at the AJ's opinion.

[00:20:19] Speaker 01:
He's talking about a number of panels that were part of the selection, that leash panel, is that correct?

[00:20:28] Speaker 01:
Because I'm not seeing an indication

[00:20:31] Speaker 01:
And I don't know, I think Judge Dyke, so I take him at his word, said that Mr. Dancy was part of the leadership.

[00:20:38] Speaker 01:
There were five panels that the judge ruled, right?

[00:20:44] Speaker 01:
That's correct, Your Honor.

[00:20:44] Speaker 01:
Have you discussed what their conclusions were?

[00:20:49] Speaker 04:
Yes, and that's at Appendix 8 and 9 of the opinion.

[00:20:52] Speaker 04:
He talks about three of the five panels that rated the candidate that was ultimately selected ahead of Mr.

[00:20:59] Speaker 04:
Oliva and the panel that gave them the same score as the leadership panel and one, the union panel rated Mr. Oliva above the person who was ultimately selected.

[00:21:11] Speaker 04:
So there were three other panels that had rated the person ultimately selected higher than Mr. Oliva.

[00:21:21] Speaker 01:
And this is also dependent.

[00:21:26] Speaker 01:
But also looking at Appendix 8, which is the A.J.'

[00:21:29] Speaker 01:
's opinion, where I guess there is testimony by Dancy that about, which I guess is just factual, about how the appellant had been outside working for a private organization for a portion of the time, correct?

[00:21:50] Speaker 01:
That is correct.

[00:21:56] Speaker 01:
Can I ask you about this three-week issue?

[00:22:00] Speaker 01:
I mean, why isn't that a bit of a problem?

[00:22:05] Speaker 01:
If indeed, I mean, why is the date the letter, the reprimand was allegedly removed from his file, but we know it wasn't, why do we count that date as anything?

[00:22:23] Speaker 04:
Well, for two reasons, Your Honor.

[00:22:24] Speaker 04:
One is that

[00:22:26] Speaker 04:
The wrongful agency action here is the placement of a letter of reprimand that shouldn't have been, or the issuance of a reprimand to Mr. Oliva for actions that he should not have been reprimanded for.

[00:22:39] Speaker 04:
And the agency conceded that that was improper on January 30th and took that reprimand back via agreeing to retract it through the settlement.

[00:22:49] Speaker 04:
So at that point, the agency no longer views Mr. Oliva as being

[00:22:54] Speaker 04:
reprimandable in a way.

[00:22:56] Speaker 04:
It now has conceded that it should not have issued that letter of reprimand.

[00:23:01] Speaker 04:
Everything after that I think is more correctly characterized as a breach of the settlement agreement because the agency didn't follow through on its administrative burden, its ministerial burden to remove the letter and to inform Ms.

[00:23:15] Speaker 04:
Harbin that she shouldn't talk about it in the reference.

[00:23:19] Speaker 04:
And so that date is significant because the harm here to Mr. Oliva is

[00:23:24] Speaker 04:
from the agency viewing him as somebody who needed to be reprimanded.

[00:23:29] Speaker 04:
And that's what the, at least that's what the only issue in this appeal.

[00:23:33] Speaker 01:
Let's assume, excuse me, but let's assume hypothetically that he was watching his file every day and that he knew that the truth, which is that the age of the fact, which is that the agency failed to comply, allegedly failed to comply with the breach, with the settlement agreement and didn't take the letter out until April.

[00:23:53] Speaker 01:
If we knew that he knew that, then why wouldn't his whatever pain and suffering or concerns flowed from the letter of reprimand not have been extendable through that period?

[00:24:07] Speaker 01:
You're right.

[00:24:10] Speaker 01:
Your theory is he thought the reprimand was there and when the agency agreed to take it out, he assumed it was out, end of story.

[00:24:17] Speaker 01:
But we all know now that they didn't take it out.

[00:24:20] Speaker 01:
And what if he had known at the time that they hadn't complied with the agreement?

[00:24:24] Speaker 01:
Wouldn't that inert to his pain and suffering related to the reprimand itself, since it's still in his file?

[00:24:32] Speaker 04:
Your Honor, I think at that point, he has a breach claim.

[00:24:34] Speaker 04:
He has a claim that the agency didn't follow through on its obligation to remove that.

[00:24:38] Speaker 04:
But the agency, after it signs the settlement agreement, no longer views Mr. Oliva as being subject to that reprimand.

[00:24:45] Speaker 04:
So I don't, even if he had known about it,

[00:24:48] Speaker 04:
I think it doesn't change the fact that this is more of a routine breach.

[00:24:52] Speaker 01:
Well, part of his claims with regard to the reprimand is how the public perceived him and his public persona, and that goes more to whether or not the reprimand was still being used and still in his file as opposed to what he knew about the agency having agreed to take it out.

[00:25:16] Speaker 01:
Am I wrong about that?

[00:25:20] Speaker 04:
Well, I think he tries to argue that, but there's no evidence that, aside from this one disclosure, but Ms.

[00:25:27] Speaker 04:
Harbin, that the wrongfully, after January 30th, the wrongful reprimand somehow had any impact on his reputation or his standing.

[00:25:38] Speaker 04:
I think that would be a different case, and that could, if the agency was still publicizing the

[00:25:44] Speaker 04:
reprimand, despite agreeing to withdraw it.

[00:25:47] Speaker 04:
Again, I think that's a routine breach of an agreement.

[00:25:51] Speaker 04:
And if he was concerned about that, as he did here, when he found out, I believe, around April 8th, in the set of appendix 148, he notified the agency, and the agency shortly thereafter removed it.

[00:26:05] Speaker 04:
I think the main harm that he alleges from this letter of reprimand was

[00:26:12] Speaker 04:
was retracted by the agency on January 30th.

[00:26:15] Speaker 04:
And that's why that date figures prominently in the administrative judge's decision as cutting off the pain and suffering damages that he weighed and made this sort of careful factual calculation about all the various actions that Mr. Lieber claimed were constituted causing him emotional distress.

[00:26:35] Speaker 04:
And the judge here went through and tried to sort out the various strands

[00:26:42] Speaker 04:
of the harassment that necessarily the claim started as early as 2012, the harassment that happened in the summer of 2015 with the search of his car, all of those which were not part of this claim and the judge tried to pull those apart and awarded what he believed was a

[00:27:01] Speaker 04:
a reasonable figure, and this court typically does not reweigh those factual determinations.

[00:27:06] Speaker 02:
And the A.J.

[00:27:07] Speaker 02:
did limit it because to that three-week period, he said specifically at the top of page A18, the duration of the agency's action was a short period, three weeks, that is, the time between the letter of reprimand and the settlement agreement.

[00:27:23] Speaker 02:
He seems to be unwilling to consider

[00:27:26] Speaker 02:
that there could be continuing harm from the letter remaining in the file.

[00:27:31] Speaker 02:
Would that be a fair statement?

[00:27:35] Speaker 04:
Your Honor, you're referring to the top of page 10-18?

[00:27:41] Speaker 02:
Yeah, he says the severity, the agency's action was of short, was short, three weeks.

[00:27:51] Speaker 02:
That is between the time of the reprimand

[00:27:54] Speaker 02:
and the settlement agreement, he doesn't consider the period between the reprimand and the removal from the file.

[00:28:04] Speaker 04:
That's correct.

[00:28:04] Speaker 04:
And that's because when the settlement agreement was signed, the agency has retracted the reprimand.

[00:28:12] Speaker 04:
If not in paper form from his file, but certainly as an official statement, you have a settlement agreement signed by the agency saying, we retract the reprimand and we will give you a positive reference.

[00:28:24] Speaker 04:
And that cabins the duration that Mr. Olivo was harmed by the letter.

[00:28:30] Speaker 04:
Now, he certainly alleges harm from the breach of the settlement agreement, and he alleged it last year and in the other case, but that's a different type of issue.

[00:28:41] Speaker 04:
And I heard the tone, so I understand my time is up.

[00:28:43] Speaker 01:
Well, I have another question, and certainly... Well, hold on a moment.

[00:28:46] Speaker 01:
I don't know if Judge Steig is finished with his question, but I have one.

[00:28:50] Speaker 01:
And that's that at A-17, at A-15, I'm sorry, the judge says the appellant did not demonstrate any of the effects of that established harm were permanent or catastrophic.

[00:29:05] Speaker 01:
Where does that standard come from?

[00:29:08] Speaker 01:
I mean, certainly something is permanent and catastrophic.

[00:29:12] Speaker 01:
It would obviously likely result in a finding of substantial damages.

[00:29:19] Speaker 01:
But the fact that it was not permanent and not catastrophic doesn't dictate that there should be very minimal or no damages, right?

[00:29:30] Speaker 04:
That's right.

[00:29:31] Speaker 04:
I think it's a case-by-case evaluation.

[00:29:33] Speaker 04:
And I think on page 16 of the decision... Where does that standard come from?

[00:29:41] Speaker 04:
I'm not sure that permanent or catastrophic is some sort of...

[00:29:45] Speaker 04:
that comes from any case law.

[00:29:49] Speaker 04:
I think the judge looked at the cases that he cites on page 16 and 17 and looked at the sort of damages that are awarded for more permanent harm versus less permanent harm here.

[00:30:03] Speaker 04:
There was a lot of different allegations of harm from many different sources or from many different causes, and there was also the timing of the

[00:30:14] Speaker 04:
of the harm of the impact on Mr. Oliva was spread over a long period of time.

[00:30:19] Speaker 04:
And so I think he, I don't think that he excluded Mr. Oliva's claim simply because it was not permanent or catastrophic.

[00:30:28] Speaker 04:
I think that was just the characterization of the type of harm that could warrant a higher award of damages.

[00:30:34] Speaker 04:
If Mr. Oliva's hypertension was permanent and he could know that it was because of a lot of reprimand, perhaps the judge would have awarded a higher amount.

[00:30:42] Speaker 04:
You've answered the question.

[00:30:43] Speaker 05:
Any other further questions?

[00:30:46] Speaker 05:
I have one question.

[00:30:47] Speaker 05:
Are you familiar with the Pausto case that I mentioned?

[00:30:50] Speaker 04:
I am, Your Honor, yes.

[00:30:54] Speaker 05:
So how do you think that affects the remedies that are in two different forums?

[00:31:03] Speaker 04:
Well, I think, Your Honor, this case doesn't run a foul of Pausto.

[00:31:07] Speaker 04:
The letter of remand here was probably brought before.

[00:31:10] Speaker 04:
The board is a personnel action.

[00:31:12] Speaker 04:
The breach of settlement agreement is court.

[00:31:16] Speaker 05:
I agree that this one belongs here.

[00:31:18] Speaker 05:
But why doesn't the other one belong in the board, too?

[00:31:23] Speaker 04:
Because the other one is just a routine breach of agreement, and those routinely go to the court of claim.

[00:31:29] Speaker 05:
Well, not in a civil service case.

[00:31:32] Speaker 01:
Well, if it had been an MSPB,

[00:31:36] Speaker 01:
breach of settlement claim.

[00:31:38] Speaker 01:
We get those all the time.

[00:31:39] Speaker 01:
The MSP is the one that adjudicates those, right?

[00:31:44] Speaker 04:
My understanding, those are for enforcement of the settlement agreement, not for damages from a prior breach.

[00:31:53] Speaker 04:
But to Judge Mayer's point, the MSPB here did consider it.

[00:32:00] Speaker 04:
I mean, the MSPB is not aware of the costly case because that case is filed.

[00:32:05] Speaker 04:
And it's found for other reasons than Mr. Oliva was not entitled to damages from the breach of contract action.

[00:32:11] Speaker 04:
But he did get his day in court on that claim here at the board, that even if you take a sort of broader reading, it's also that all of these cases are meant to be channeled to the board and not for the court of claim.

[00:32:26] Speaker 01:
Did either party in this case ask that our court

[00:32:31] Speaker 01:
hear the cases together or consolidate them in any way, shape, or form?

[00:32:36] Speaker 01:
Because that would have seemed to, in hindsight, made a lot of sense.

[00:32:40] Speaker 01:
Any of that, was that ever requested or suggested by the parties?

[00:32:45] Speaker 04:
I don't believe that was suggested by either party and in hindsight, I think that may have been a wise choice.

[00:32:52] Speaker 04:
I'm not sure why that didn't happen, Your Honor.

[00:32:57] Speaker 01:
Okay.

[00:32:57] Speaker 01:
My colleagues have nothing further.

[00:33:01] Speaker 01:
Judge Mayor.

[00:33:02] Speaker 01:
Okay.

[00:33:04] Speaker 01:
Let's hear for rebuttals from the other side.

[00:33:06] Speaker 01:
Thank you very much.

[00:33:10] Speaker 00:
Thank you, Your Honor.

[00:33:11] Speaker 00:
First, Mr. Dancy was the decision-maker here, but his testimony was incorrect about a keystone fact.

[00:33:17] Speaker 00:
He was told about the letter of reprimand, as Your Honor said.

[00:33:20] Speaker 01:
Hold on.

[00:33:21] Speaker 01:
Hold on a second.

[00:33:22] Speaker 01:
I just don't know where it is in the record.

[00:33:24] Speaker 01:
There were... The AJA, I think, talked about five different rating panels, selection panels,

[00:33:30] Speaker 01:
Was, is there anything in the record to show whether or not Mr. Dancy was on either any of those panels?

[00:33:38] Speaker 00:
So I believe Mr. Dancy also, it might be in his affidavit in terms of discussing the panel.

[00:33:50] Speaker 02:
It's on page 131 of the record.

[00:33:53] Speaker 00:
Yes, I just turned to it.

[00:33:54] Speaker 00:
Thank you, Your Honor.

[00:33:55] Speaker 02:
The membership of the leadership panel.

[00:33:59] Speaker 02:
including the acting associate director, which is what his position was.

[00:34:05] Speaker 00:
And so on Appendix 131 to 132 is where Mr. Dancy had explained the different panels.

[00:34:15] Speaker 00:
However, Mr. Dancy was the person who ultimately ranked the candidate, and this is clear that it happened after he had known about the letter of reprimand.

[00:34:26] Speaker 00:
However, he

[00:34:29] Speaker 00:
later on in his affidavit on... Wait a minute, I don't know.

[00:34:33] Speaker 01:
Where are you getting that he's the one that ranked the... I thought the panels ranked the candidate.

[00:34:41] Speaker 01:
I mean, they came up with a number of points which translates into rates, right?

[00:34:46] Speaker 01:
Where is it that Mr. Dancy ranked the candidates?

[00:34:52] Speaker 00:
So, the ranking of the candidate is...

[00:34:57] Speaker 00:
discussed in Appendix 132 in Mr. Dancy's affidavit.

[00:35:03] Speaker 00:
The numerical scores are given by the panels according to him.

[00:35:07] Speaker 00:
However, this conflicts with the nomination package which is explained in Appendix 77 that the leadership group was the only group which scored the applicant using a total of eight performance-based interview questions.

[00:35:22] Speaker 00:
And then the separate question is, what was the overall ranking of the complainant and of the selectees?

[00:35:31] Speaker 00:
And he also emailed, there's emails that point out that Mr. Dancy was the one who ultimately ranked the candidate, which is in the record, but I'm having a hard time

[00:35:51] Speaker 00:
finding exactly the pin site for that email.

[00:36:07] Speaker 00:
And because he was part of the leadership group and he knew about the letter of reprimand,

[00:36:20] Speaker 00:
The only evidence that the court relied upon in determining that other factors contributed to Mr. Oliva not being selected for the position is solely based on Mr. Dancy's affidavit, which we know is wrong on the Keystone fact and therefore falls apart.

[00:36:49] Speaker 00:
And the second point is while the government, the board referred to the EEO agreement as a settlement agreement, this is not a settlement of Mr. Oliva's claims.

[00:36:59] Speaker 00:
Mr. Oliva only agreed to retract his EEO complaint, but it's undisputed that this didn't settle any of the claims for the damages for the retaliation.

[00:37:09] Speaker 00:
Mr. Oliva cannot recover for the emotional damages in a breach of contract case.

[00:37:15] Speaker 00:
His pain and suffering cannot be cut off by the government's promise to retract when the government didn't actually remove this letter from his file on April 17.

[00:37:28] Speaker 00:
He continued to suffer after he found out that this letter was still not been expunged and even worse that it was disclosed when he was trying to get himself out of a hostile work environment.

[00:37:44] Speaker 02:
I want to come back to the question of his damages claim for losing the El Paso position.

[00:37:54] Speaker 02:
We've had a lot of discussion about whether the AJ's determination that the letter of reprimand played no part in this and maybe the AJ's finding in that respect is actually inconsistent.

[00:38:11] Speaker 02:
But there seems to be an alternative ground for denying relief with respect to the El Paso position, and that is the AJ's finding that it wasn't foreseeable that the issuance of the letter of reprimand would have that impact on the El Paso job.

[00:38:30] Speaker 02:
And in fact, the proximate cause of the loss of the El Paso job, if there was an approximate cause at all, was the breach of the settlement agreement.

[00:38:40] Speaker 02:
What's your answer to that?

[00:38:42] Speaker 02:
Why was the A.J.

[00:38:43] Speaker 02:
wrong in times of lack of foreseeability between the very issuance of the letter of reprimand and the loss of the El Paso job?

[00:38:54] Speaker 00:
Yes, Your Honor.

[00:38:54] Speaker 00:
Disclosure of the letter of reprimand while it remained on Mr. Oliva's file is foreseeable because anyone at the agency with access to his file could see this letter and

[00:39:08] Speaker 00:
As a result, it was disclosed when there was a reference check.

[00:39:14] Speaker 00:
And that's the entire purpose of such a retaliation.

[00:39:17] Speaker 00:
It is to make it known within the agency about his supposed reprimand.

[00:39:25] Speaker 00:
And so this is not an intervening act by a third party, as the government had argued, but rather the disclosure was by an agency employee acting within her employment.

[00:39:35] Speaker 02:
It's not an intervening act question.

[00:39:37] Speaker 02:
It's a question of whether the issuance was foreseeable when the letter of reprimand was issued, that it would cause the loss of a job in El Paso.

[00:39:50] Speaker 00:
Right, Your Honor.

[00:39:53] Speaker 00:
And that's what I was trying to explain with the entire point of issuing a letter of reprimand is to make it known within the agency and anyone who inquires about him, about Mr. Oliva, that he was reprimanded.

[00:40:08] Speaker 00:
And so as a result, it's foreseeable that that would impact people's decisions surrounding whether to hire him.

[00:40:25] Speaker 00:
And I did hear the bell.

[00:40:27] Speaker 00:
And if you have a final thought, the bell has rung, but you were asked questions.

[00:40:33] Speaker 01:
So if you have a final thought, I would allow you to do that.

[00:40:39] Speaker 00:
Your honor, I believe I sufficiently answered your questions.

[00:40:41] Speaker 00:
I'll just proceed with my conclusion quickly.

[00:40:47] Speaker 00:
So for the reasons discussed today and in the brief, Mr. Oliva respectfully requests that this court issue an order reversing or vacating the board's decision and award the full amount of damages caused by the retaliatory letter of reprimand.

[00:40:59] Speaker 01:
Thank you.

[00:41:00] Speaker 01:
Thank you.

[00:41:01] Speaker 01:
We thank counsel, we thank both sides and the case is submitted.

[00:41:06] Speaker 01:
That concludes our proceeding for this morning.

[00:41:10] Speaker 03:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.