[00:00:00] Speaker 02:
Good morning, Your Honor.

[00:00:02] Speaker 02:
May it please the court.

[00:00:03] Speaker 01:
Okay, are we ready?

[00:00:05] Speaker 01:
Let me just pause a moment to again introduce case number 19, 2059, Oroville against the United States.

[00:00:13] Speaker 01:
Mr. Park, proceed.

[00:00:16] Speaker 02:
Good morning, Your Honor.

[00:00:17] Speaker 02:
May it please the court.

[00:00:18] Speaker 02:
My name is Han Park, counsel for the appellant, Stephen Oliva.

[00:00:23] Speaker 02:
This is a case about a whistleblower who did the right thing

[00:00:27] Speaker 02:
by raising a flag about a prohibited personnel practice at the VA, but received retaliation.

[00:00:34] Speaker 03:
Mr. Park, this is Judge Wallace.

[00:00:37] Speaker 03:
On page one of the blue brief, you characterized this appeal as a contract and takings case.

[00:00:45] Speaker 03:
Have you raised any takings claims, and if so, where is that in the record?

[00:00:50] Speaker 02:
We have not raised it and we clarified it in our reply brief that we are only raising the contract claim.

[00:01:00] Speaker 03:
On page 91 of the joint appendix, Mr. Oliver's complaint notes that he's also pursuing a wrongful termination claim before the Merit Systems Protection Board.

[00:01:14] Speaker 03:
Is that still the case?

[00:01:17] Speaker 03:
And is that the same as the whistleblower complaint noted in your blue brief?

[00:01:22] Speaker 02:
That's a different complaint.

[00:01:24] Speaker 02:
So the whistleblower complaint is about retaliation by the VA by issuing the reprimand letter.

[00:01:36] Speaker 02:
The termination complaint is regarding the ultimate termination of Mr. Oliva in April 2016.

[00:01:45] Speaker 03:
And is he still pursuing that?

[00:01:49] Speaker 02:
We are not involved in that case, but my understanding is that he is pursuing that claim.

[00:01:57] Speaker 04:
I believe that case is scheduled for argument in our court in the May session.

[00:02:04] Speaker 02:
That case that's argued is actually the whistleblower claim.

[00:02:08] Speaker 02:
So the MSPB found that

[00:02:15] Speaker 02:
The VA perceived Ms.

[00:02:18] Speaker 02:
Oliva as a whistleblower, and then the reprimand letter was caused by the VA's perception that he is a whistleblower.

[00:02:29] Speaker 02:
However, the MSPB stated that the breach of agreement is more accurately the proximate cause of his non-selection rather than reprimand itself.

[00:02:40] Speaker 02:
So that forced Ms.

[00:02:41] Speaker 02:
Oliva to file this claim for contract.

[00:02:45] Speaker 04:
We have a situation here in which the contract was admittedly breached on two occasions.

[00:02:53] Speaker 04:
And the question is damages.

[00:02:55] Speaker 04:
So why don't you address that?

[00:02:58] Speaker 04:
Yes.

[00:03:00] Speaker 02:
So I'll address the first loss of salary claim.

[00:03:06] Speaker 02:
The Court of Fair Claims found that the VA termination of Mr. Oliva's employment in April 2016

[00:03:12] Speaker 02:
rather than the VA's breach of settlement agreement in February 2016 was the proximate cause.

[00:03:19] Speaker 02:
But this finding misses Mr. Oliver's situation as a whistleblower at the time of the settlement agreement and the purpose of the agreement.

[00:03:29] Speaker 03:
It is undisputed.

[00:03:30] Speaker 03:
Mr. Park, this is Judge Wallach.

[00:03:33] Speaker 03:
On page 22 of the blue brief, you say, I'm quoting you, because the termination was a foreseen event at the time of contracting,

[00:03:42] Speaker 03:
and would not have occurred but for the VA's breach, it cannot be a proximate cause of the lost salary.

[00:03:50] Speaker 03:
What's the legal basis for that foreseeability argument?

[00:03:54] Speaker 03:
You didn't cite anything.

[00:03:57] Speaker 02:
The foreseeability argument is that looking at the case, Ballstone Corp.

[00:04:08] Speaker 02:
and Fifth Art Bank,

[00:04:10] Speaker 02:
that proximate cause and foreseeability doctrines are not meaningfully distinct.

[00:04:15] Speaker 02:
So when an event is a foreseeable consequence of the breach of the contract, then the courts have found that the proximate cause is actually the breach of the contract rather

[00:04:36] Speaker 02:
than the foreseeable event that happened because of the breach.

[00:04:43] Speaker 04:
It's very confusing.

[00:04:45] Speaker 04:
Look, he says you promised not to tell other people about the reprimand.

[00:04:55] Speaker 04:
You told other people about the reprimand.

[00:04:57] Speaker 04:
I didn't get a couple of jobs as a result of that.

[00:05:01] Speaker 04:
And the fact that I might have been terminated later by

[00:05:04] Speaker 04:
the VA doesn't mean I can't recover for the lost opportunities that resulted from the breach.

[00:05:10] Speaker 04:
That's basically your case, right?

[00:05:14] Speaker 02:
That is right, but Mr. Oliva needed a settlement agreement so that he could precisely avoid what happened in April 2016.

[00:05:23] Speaker 02:
That is to get a judge, another VA judge, before getting fired.

[00:05:30] Speaker 02:
He saw the writing on the wall when he was being retaliated by the VA.

[00:05:35] Speaker 02:
for his withdrawing activity.

[00:05:37] Speaker 04:
So the parties, the contract... If he'd gotten one of these other jobs, he wouldn't have been terminated.

[00:05:44] Speaker 04:
He would have taken the other job.

[00:05:46] Speaker 04:
He would have had the other job.

[00:05:47] Speaker 04:
He would have had the income from the other job.

[00:05:50] Speaker 04:
He would have had the relocation compensation from the other job.

[00:05:54] Speaker 04:
The fact that he didn't get the job and that he was fired later has nothing to do with his damages claim, right?

[00:06:04] Speaker 02:
We respectfully disagree because... You disagree that you're entitled to recover?

[00:06:18] Speaker 02:
No, we disagree that it has nothing to do with the breach.

[00:06:25] Speaker 04:
Maybe I misunderstood your... What I'm saying is they breached the contract, they deprived him of the opportunity to get other jobs,

[00:06:34] Speaker 04:
If he'd gotten those other jobs, he never would have been terminated from the job he had, right?

[00:06:40] Speaker 04:
That's correct.

[00:06:47] Speaker 01:
You know, all of these separate actions are not... You can't say that they're totally independent of one or the other.

[00:06:56] Speaker 01:
Was there any logic to having all of these separate actions?

[00:07:01] Speaker 01:
Is it because they're different tribunals?

[00:07:04] Speaker 01:
but to the extent that they're in different tribunals, does that mean that the issues, one and the other, the question of wrongful termination can't really be separated in a practical way, can it, from the question of damages because of lost opportunity?

[00:07:28] Speaker 02:
We think all these are part of the

[00:07:31] Speaker 02:
continuation of VA's retaliation.

[00:07:35] Speaker 02:
But every time you go to, Mr. Oliva goes to one tribunal, he's told that the cause is some other wrongdoing by the VA, and he goes to another tribunal.

[00:07:46] Speaker 02:
And just as the government argues here, they say, OK, you have to go to another tribunal for a different claim.

[00:07:54] Speaker 02:
So all Mr. Oliva is asking is to be compensated for the harm that VA inflicted on him

[00:08:01] Speaker 02:
But it looks like what he's been told is that while there was a harm, that harm that you have to seek damages for is something else, not that the one you are seeking here.

[00:08:15] Speaker 02:
So it's just the result of the hand that he was dealt with, not that he's trying to get more damages than what he's entitled to.

[00:08:29] Speaker 01:
Okay, this really hadn't been clear to me.

[00:08:32] Speaker 01:
You're telling us that the reason that you have all these separate actions in the separate tribunals is a result of various defenses that were raised by the government and required to respond to them?

[00:08:47] Speaker 02:
Either the defense by the government or ultimate finding by the tribunal.

[00:08:54] Speaker 02:
So MSPB found that

[00:08:57] Speaker 02:
even though there was a whistle-blowing activity, then the damages are because of the contract breach.

[00:09:07] Speaker 02:
And also this court of federal claims found that, OK, you might have lost your way, but it's because of wrongful termination of the job.

[00:09:19] Speaker 02:
So it's both the government's defense

[00:09:25] Speaker 02:
the finding of tribunal that forcing this are already about to seek claim that different tribunals.

[00:09:36] Speaker 01:
Okay, and so you're operating within that framework and saying that the only issue here then is breach of contract, but doesn't one have to assume that all these other issues

[00:09:50] Speaker 01:
would be decided or have been favorably decided or in this case, the breach of contract is conceded.

[00:09:58] Speaker 01:
So that the other, if he isn't a whistleblower, then for instance, or if the MSPB finds no basis for his response,

[00:10:14] Speaker 01:
to the employment action, then the issues here of damages also would lose their support, would they not?

[00:10:25] Speaker 02:
Just correct.

[00:10:26] Speaker 02:
So, for example, if he were to collect relocation incentive pay through the whistleblowing activity, then he wouldn't ask for the same damages here.

[00:10:44] Speaker 01:
Okay, now I hear the bell and I think we're ready.

[00:10:48] Speaker 01:
I have some questions for the government.

[00:10:51] Speaker 01:
Does the panel have any more questions at the moment for Mr. Park?

[00:10:56] Speaker 03:
This is Judge Wallach.

[00:10:57] Speaker 03:
I don't at the moment.

[00:10:59] Speaker 01:
Okay, so you have your rebuttal time.

[00:11:01] Speaker 01:
We'll see what the government has to say.

[00:11:03] Speaker 01:
Mr. Pecky, are you there?

[00:11:07] Speaker 05:
Yes, good morning.

[00:11:08] Speaker 05:
May it please the court.

[00:11:09] Speaker 05:
Judge Newman, you said you had some questions.

[00:11:10] Speaker 05:
If you'd like to just start with that, that's fine with me.

[00:11:13] Speaker 01:
Well, one of the things which starts to rise more significantly to the surface is all of the tribunals that this employee, ex-employee, has been required to go to, along with the expense of counsel.

[00:11:33] Speaker 01:
And I don't know what else, plus the

[00:11:36] Speaker 01:
the separation of the issues.

[00:11:39] Speaker 01:
And the response to the last question is that this has just sort of evolved with the proceedings of government responses and tribunals attempting to stay within their jurisdiction.

[00:11:53] Speaker 01:
And from the government's viewpoint and let's take the larger issue, this starts to sound not

[00:12:02] Speaker 01:
fully in keeping, or perhaps not at all, in keeping with the legislative purpose to provide a fair and reasonable approach to resolving employment disputes.

[00:12:16] Speaker 05:
Yes, Your Honor.

[00:12:16] Speaker 05:
So the proliferation of claims that Mr. Oliva has brought, I mean, there's the MSPB claim, as this Court's aware of, that is being argued next month, which

[00:12:30] Speaker 05:
It's on appeal.

[00:12:31] Speaker 05:
He's seeking the same damages that he's seeking here.

[00:12:33] Speaker 05:
He's arguing that the MSPB erred when it didn't give him the relocation incentive pay on the retaliation claim that he brought, or on the whistleblower claim that he brought.

[00:12:44] Speaker 01:
Well, no, you can't fault him for that if he dropped it.

[00:12:47] Speaker 01:
The government would say he's not interested in damages.

[00:12:51] Speaker 05:
Well, no, no.

[00:12:52] Speaker 05:
I'm just trying to line up that there's... I think that any intimation from counsel that somehow the damages aren't available, and that's why he's pursuing multiple actions, just belied by the fact that he continues to seek those damages in multiple actions.

[00:13:11] Speaker 04:
That may be true, but what about this action?

[00:13:13] Speaker 04:
I mean, this seems pretty simple.

[00:13:15] Speaker 04:
The government reached the contract.

[00:13:17] Speaker 04:
he alleges, and he may be able to prove it, or he may not be able to prove it, that he didn't get a couple of jobs because of the breach by the government.

[00:13:26] Speaker 04:
And he says that he wants the salary and relocation expenses that he would have gotten if he'd gotten those jobs.

[00:13:34] Speaker 04:
And he says it's irrelevant that later on, after he would have gotten those jobs, that he was terminated.

[00:13:40] Speaker 04:
What's the matter with that theory?

[00:13:42] Speaker 05:
The problem with the theory, as comes through in Judge Grigsby's

[00:13:47] Speaker 05:
opinion is I think you can narrow it down to the missing dates, the missing time frame, it doesn't even have to be specific dates, surrounding the applications, his rating, and the termination.

[00:14:05] Speaker 05:
I'm not following what you're saying.

[00:14:07] Speaker 04:
Let's deal with a simple hypothetical.

[00:14:13] Speaker 04:
The government breaches the contract, he fails to get a job that he would otherwise get, and he's asking for damages, and he says the fact that later I was terminated has nothing to do with it.

[00:14:25] Speaker 04:
What's the matter with that theory?

[00:14:27] Speaker 04:
Two things in this case.

[00:14:29] Speaker 05:
First, the specific damages identified for one front, which are relocation damages, require a specific rating at the time the job is taken.

[00:14:41] Speaker 05:
And there are no allegations in the complaint to support that.

[00:14:44] Speaker 05:
And in fact, the allegations tend to contradict it.

[00:14:47] Speaker 05:
The second thing wrong with it is the termination, which happened close in time to these application processes.

[00:14:55] Speaker 05:
There's nothing in the complaint to separate whatever behavior may have happened to lead to the termination or whatever, how the termination came about from these applications, which when all of that is put into a complaint,

[00:15:11] Speaker 04:
I simply do not understand that argument.

[00:15:14] Speaker 04:
He says, let's say, he says, in January, I applied for these jobs.

[00:15:20] Speaker 04:
I didn't get it because you breached the contract.

[00:15:23] Speaker 04:
In December, the government fired me.

[00:15:25] Speaker 04:
What does the fact that the government fired him a year later have to do with his right to damages for the breach earlier?

[00:15:33] Speaker 04:
Well, the government didn't fire him a year later.

[00:15:34] Speaker 04:
It fired him months later.

[00:15:35] Speaker 04:
I'm giving you a hypothetical.

[00:15:38] Speaker 04:
He said, I didn't get a job in January because you've reached the contract.

[00:15:42] Speaker 04:
And the government says, oh, well, you're not entitled to damages because we fired you a year later.

[00:15:47] Speaker 04:
What does that have to do with it?

[00:15:49] Speaker 05:
But as Judge Grigsby found, and I think based on the way this complaint is alleged, that firing operates as an intervening cause.

[00:15:56] Speaker 05:
And there's nothing in the complaint to separate it out.

[00:15:59] Speaker 04:
What's intervening later?

[00:16:02] Speaker 04:
It happened later after he didn't get the job.

[00:16:04] Speaker 04:
It's not intervening, it's just an event that happened after the breach and after he lost the job because of the breach.

[00:16:13] Speaker 05:
But that intervening, or that, I'll leave aside the phrase intervening, that termination, which he's pursuing in this whistleblower action as wrongful, based on some conduct, alleging that in a complaint, raises in the complaint the

[00:16:33] Speaker 05:
uh... conclusion that determination may not have been for the the reason he didn't get these jobs wasn't because of anything the government uh... did in regards to these settlement agreements but was because of behavior that was determination.

[00:16:47] Speaker 03:
Wait, wait, wait, wait, wait, wait, this is Judge Wallach.

[00:16:50] Speaker 03:
I have a couple of questions.

[00:16:52] Speaker 03:
One, as to the failure to get the jobs, it's undisputed that the government breached and said bad things about

[00:17:03] Speaker 03:
Mr. Oliver to the potential employers, right?

[00:17:07] Speaker 05:
No, it is not.

[00:17:08] Speaker 05:
I mean, we are on the pleadings here.

[00:17:10] Speaker 05:
The facts will show that... No, no.

[00:17:13] Speaker 05:
I'm not going to get into... On the pleadings, all he says, he alleges that they mentioned the retaliation in the first and in the second... In breach of contract.

[00:17:23] Speaker 05:
In breach of contract and in the second instance that the wrong person responded, I think, is the allegation there.

[00:17:32] Speaker 03:
Okay.

[00:17:32] Speaker 03:
I said I had a couple of questions.

[00:17:34] Speaker 03:
The other one is, separately from his claim of damages for not getting the job, the relocation one looks to me like you have an interesting argument.

[00:17:51] Speaker 03:
On page 16 of the Red Brief, you argue that his claim that he was a federal employee with a fully successful rating, when he applied

[00:18:00] Speaker 03:
for the Greenville position is insufficient because the reg actually requires that, quote, relocating employees are only eligible if they are federal employees with a fully successful rating immediately before relocating.

[00:18:23] Speaker 03:
Correct, Your Honor.

[00:18:24] Speaker 03:
My question is, when might an employee be entitled

[00:18:28] Speaker 03:
damages equal to relocation instead of pay.

[00:18:32] Speaker 03:
What would he after a lit?

[00:18:33] Speaker 05:
I think it'd be very simple and I also think it's telling here that there's never been a request to amend because I think that all it requires is much like providing plausible allegations to support the elements of a claim.

[00:18:47] Speaker 05:
If you're claiming specific damages that are defined by a statute, right, where there are specific

[00:18:54] Speaker 05:
eligibility requirements, then I think it was entirely proper for Judge Grigsby to say, look, just put down the basic allegations that make it plausible that you're going to hit these eligibility requirements.

[00:19:09] Speaker 05:
If you have to do something on information and belief, do something on information and belief, but you've got to get some allegations down.

[00:19:14] Speaker 05:
And when you look at that complaint, it is very artfully pleaded.

[00:19:17] Speaker 05:
The two paragraphs that are identical for these two positions open

[00:19:20] Speaker 05:
with the allegation that though Mr. Oliva met all the requirements at the time of application and interview, then the last sentence of each of those paragraphs says that at the time of application, he had a fully successful rating.

[00:19:36] Speaker 05:
We don't know when he applied.

[00:19:37] Speaker 05:
We don't know when his rating changed.

[00:19:40] Speaker 05:
He was fired, you know, in close order on these things.

[00:19:44] Speaker 05:
None of that is in the complaint.

[00:19:45] Speaker 05:
And Judge Cruzby said, look, without that in there,

[00:19:49] Speaker 05:
It's not plausible to conclude that you have access to these damages or these wages or incentive pay as damages that are dependent on specific eligibility requirements.

[00:20:02] Speaker 05:
You've got to provide them.

[00:20:05] Speaker 03:
Did the government raise an affirmative defense that he was not fully successful at the time?

[00:20:13] Speaker 03:
Well, there was no relocation.

[00:20:16] Speaker 05:
Right.

[00:20:17] Speaker 05:
And we didn't answer because we moved to dismiss.

[00:20:19] Speaker 05:
So, okay.

[00:20:20] Speaker 05:
Okay.

[00:20:20] Speaker 05:
If we, if we answer, we will, you know, obviously, um, do this.

[00:20:26] Speaker 05:
And I mean, I don't know what's happening.

[00:20:29] Speaker 05:
And he alleged that he had a fully successful rating at all relevant times.

[00:20:34] Speaker 05:
No, he alleged he had a fully successful rating at the time of application.

[00:20:38] Speaker 05:
And he stuck with that.

[00:20:39] Speaker 05:
And this decision came down, this was dismissed once before when he was pro se.

[00:20:44] Speaker 05:
But you'll leave a secure pro bono counsel.

[00:20:47] Speaker 05:
Uh, these assets of the complaint didn't change.

[00:20:50] Speaker 05:
And I mean, the, basically the response group to the most of the dismissal is we don't have to, and there's no request to amend that.

[00:20:57] Speaker 05:
Well, if the court thinks we do have to, you know, we'll amend the complaint.

[00:21:01] Speaker 05:
Um, so there's just, there's nothing in the complaint to solve the timing issues, uh, that the complaint itself raises.

[00:21:11] Speaker 05:
And I think that that's at,

[00:21:13] Speaker 05:
the most basic level with underlying Judge Grigsby's decision.

[00:21:18] Speaker 05:
That only has to do with the relocation expenses, right?

[00:21:22] Speaker 05:
Well, I think it's also inherent in... I understand that the court is more reticent on the lost salary claim, which is different, but I think, you know... I'm sorry, go ahead.

[00:21:38] Speaker 04:
What is the missing allegation about the lost salary claim?

[00:21:43] Speaker 05:
Well, in the opinion, Judge, there's been some damages and also causation.

[00:21:51] Speaker 04:
And I think that the question, what is the misallegation about the lost salary?

[00:21:59] Speaker 04:
That the alleged breaches caused the loss in salary.

[00:22:08] Speaker 01:
Well, they're not alleged breaches, they're admitted breaches.

[00:22:14] Speaker 05:
We have not admitted anything in this action yet.

[00:22:20] Speaker 01:
I don't know.

[00:22:21] Speaker 01:
The briefing before us states that a breach of contract or a breach of that of understanding was admitted.

[00:22:32] Speaker 05:
Yes, in the 2015 case, the agency, through the administrative process, the breach was found and then it was settled.

[00:22:44] Speaker 05:
and then he elected to validate the settlement after there were some administrative issues.

[00:22:54] Speaker 01:
So I guess there's been a finding at the administrative level that there was a breach of... You're saying the government can now take the position that there was no breach?

[00:23:06] Speaker 05:
Well, I'm saying that the government hasn't taken a position yet in this case, but there is a finding.

[00:23:12] Speaker 05:
The government accepts that there's a finding in the administrative level that there was... Undisputed.

[00:23:20] Speaker 05:
A breach, yes.

[00:23:21] Speaker 01:
Undisputed that there were two breaches.

[00:23:24] Speaker 05:
No, Your Honor, one.

[00:23:25] Speaker 05:
There is no administrative finding on the second breach.

[00:23:30] Speaker 01:
Okay, all right.

[00:23:31] Speaker 01:
That may or may not turn out to be validated, but

[00:23:35] Speaker 01:
Let's say we have one breach, one admitted breach, isn't the question then entirely a compensation for that breach?

[00:23:46] Speaker 05:
Well, under the elements of breach of contract, he has to, so if you assume the first three elements then from a breach, it still has to show damages caused by the breach, so it's to allege that.

[00:24:01] Speaker 05:
And he seeks to allege that in the complaint.

[00:24:04] Speaker 05:
It fails to cross the plausibility threshold.

[00:24:09] Speaker 01:
Well, that's not plausible that there were damages or that you can't say it's not plausible that there was a breach that's behind us.

[00:24:19] Speaker 05:
The relocation pay is implausible because there is nothing in the complaint to support a, assuming everything in the complaint is true, to support

[00:24:34] Speaker 05:
a conclusion that he would have even had access at all to those damages.

[00:24:40] Speaker 03:
What about the loss of salary?

[00:24:48] Speaker 05:
The loss of income, the breaches he alleges, which is that you gave the wrong person a

[00:25:02] Speaker 03:
He alleges at least, and there's a concession that a potential employer was given derogatory information that the government promised would not be given.

[00:25:20] Speaker 03:
Is that not correct?

[00:25:25] Speaker 05:
In his allegations?

[00:25:26] Speaker 05:
Yes, that's what he alleges.

[00:25:28] Speaker 01:
Yes.

[00:25:34] Speaker 05:
I mean, Your Honor, frankly, there is testimony and there are things in, it's in the MSPB case and we're operating within the confines of a complaint here.

[00:25:44] Speaker 05:
And the exact status of what was done in the breach, yes, something was mentioned, but the way it was mentioned is very specific.

[00:25:56] Speaker 05:
It wasn't in a negative way.

[00:25:58] Speaker 05:
It gets very factual and I don't want to go into that here, but yes,

[00:26:02] Speaker 05:
The wrong thing was said when an employer called in terms of what's defined in the settlement agreement.

[00:26:09] Speaker 05:
So you've reached the... Can I please continue?

[00:26:13] Speaker 01:
Can I please respond to the question?

[00:26:16] Speaker 04:
I'm sorry, there was a... A brief contract, right?

[00:26:19] Speaker 04:
That's the allegation.

[00:26:21] Speaker 04:
Correct.

[00:26:21] Speaker 04:
That's the allegation.

[00:26:22] Speaker 04:
And he lost salary because he lost a job because you've reached the contract.

[00:26:27] Speaker 04:
He still had a job when it was breached.

[00:26:29] Speaker 04:
He was being paid then.

[00:26:30] Speaker 04:
And he's not seeking to, to recover double damages.

[00:26:35] Speaker 04:
He's saying, uh, I would have gotten this new job and I would have continued as a new job and I would have been paid by the new job.

[00:26:43] Speaker 04:
And I want to recover the additional amounts I would have received.

[00:26:46] Speaker 04:
What's the matter with that?

[00:26:47] Speaker 03:
I just went in there and checked.

[00:26:50] Speaker 04:
There's a doctrine called future expectation.

[00:26:53] Speaker 04:
I simply do not understand the government's position.

[00:26:56] Speaker 04:
This looks like contract law 101.

[00:26:59] Speaker 04:
And you're trying to come up with some convoluted argument as to why damages shouldn't be paid for a breach by the government.

[00:27:12] Speaker 05:
The expectation damages of the lost salary, the court found to be too speculative based on the allegations.

[00:27:23] Speaker 05:
Because the termination which occurred

[00:27:28] Speaker 05:
you put everything together again as alleged in the complaint is right on top of these allegations of not getting the other jobs and it becomes impossible based on the allegations of the complaint to extract whether or not these jobs were not given because of what was done or because he was terminated right around the same time for some reason there's nothing in there in terms of timeline in terms of when

[00:27:56] Speaker 05:
This happened when he heard about the jobs.

[00:27:59] Speaker 05:
There's nothing to fill out the details to untangle all of these things that happened at the same time.

[00:28:05] Speaker 05:
It's unusual that I think these basic allegations aren't made, aren't offered in the complaint, but the result of it is this conflating, and that's what Judge Grigsby I think ultimately found there.

[00:28:26] Speaker 05:
That's the problem.

[00:28:30] Speaker 01:
Okay, we see the problem.

[00:28:32] Speaker 01:
Does the panel have any more questions for Mr. Pelkey?

[00:28:35] Speaker 03:
Well, I have a couple.

[00:28:35] Speaker 03:
This is Judge Wallach.

[00:28:36] Speaker 03:
I have a couple of comments.

[00:28:38] Speaker 01:
Okay, proceed.

[00:28:39] Speaker 03:
One is that I think I was talking at the same time as Judge Dyke, so you may not have heard me.

[00:28:48] Speaker 03:
It seems to me that the doctrine at issue is, if nothing else, is future expectations.

[00:28:55] Speaker 03:
And the other is, as far as your discussion regarding what he alleged and didn't allege in the complaint, is that maybe for the magic of discovery after an answer.

[00:29:07] Speaker 03:
But those are my comments.

[00:29:09] Speaker 03:
Thank you.

[00:29:11] Speaker 01:
Okay.

[00:29:11] Speaker 01:
Anything else from the panel?

[00:29:12] Speaker 01:
Judge Dyke, any more questions?

[00:29:15] Speaker 01:
No.

[00:29:15] Speaker 01:
Judge Wallach?

[00:29:16] Speaker 03:
No, thank you.

[00:29:17] Speaker 01:
Okay.

[00:29:18] Speaker 01:
In that case, we'll hear rebuttal from Mr. Park.

[00:29:22] Speaker 02:
Yes, Your Honor.

[00:29:23] Speaker 02:
I just wanted to address two things.

[00:29:26] Speaker 02:
The first is about the damages at different tribunals that came up today.

[00:29:35] Speaker 02:
So I just wanted to remind Your Honor that we are at the motion of dismiss stage for this case.

[00:29:42] Speaker 02:
And the question of damages would develop over time with discovery and how the other cases proceed.

[00:29:49] Speaker 02:
So there is

[00:29:52] Speaker 02:
no risk that, you know, for some reason, for somehow we are seeking double damages for all these claims.

[00:30:04] Speaker 02:
And second, I wanted to address the relocation incentive pay issue.

[00:30:11] Speaker 02:
So, Mr. Oliva, he pled that his rating of record was at least fully successful or the equivalent

[00:30:22] Speaker 02:
at the time he submitted his application.

[00:30:25] Speaker 02:
And this provides reasonable inference that Mr. Oliva would have met the requirement to receive relocation incentive pay immediately before the relocation.

[00:30:36] Speaker 02:
And I think the government was implying somehow that Mr. Oliva was artfully trying to avoid answering some facts the way it was written here.

[00:30:50] Speaker 02:
But what's ironic here is that the VHA knows better than anybody when it made a hiring decision for the Greenville Health Center, and what Mr. Oliva's rating of record was at the time, and whether he was a federal employee at the time.

[00:31:05] Speaker 02:
This is not something that Mr. Oliva somehow hides from the government, because government has all this information.

[00:31:13] Speaker 02:
So it just seems like the government is arguing that Mr. Oliva should have flat text that would make his claims

[00:31:19] Speaker 02:
even more plausible than meeting the plausibility standard.

[00:31:25] Speaker 02:
But that's not the requirement here.

[00:31:27] Speaker 02:
What he pled that he had a record of fully successful or equivalent at the time he submitted his application shows plausibly that he would have retained the same record when he would have relocated after getting the job.

[00:31:49] Speaker 02:
Of course, when he would have been located, Ms.

[00:31:52] Speaker 02:
Oliver doesn't know yet, but we expect that to come out to a discovery because the government has that information.

[00:32:05] Speaker 01:
Okay.

[00:32:07] Speaker 01:
Anything else that you need to tell us?

[00:32:08] Speaker 01:
Does the panel have any more questions for Mr. Park?

[00:32:15] Speaker 01:
I hear silence.

[00:32:18] Speaker 03:
This is Judge Wallach.

[00:32:19] Speaker 03:
Silence, yes.

[00:32:21] Speaker 01:
Okay.

[00:32:22] Speaker 01:
Well, in that case, we are ready to take the case under submission.

[00:32:26] Speaker 01:
We thank counsel.

[00:32:27] Speaker 01:
The case of Oliver against the United States is submitted.

[00:32:30] Speaker 01:
And that concludes this panel's telephonic arguments for this morning.

[00:32:38] Speaker 02:
The honorable court is adjourned until tomorrow morning at 10 a.m.