[00:00:07] Speaker 02:
We have four argued cases this morning.

[00:00:09] Speaker 02:
The first is number 19-1168, Sistak versus DVA.

[00:00:16] Speaker 02:
Mr. Bakash, is that how you pronounce it?

[00:00:20] Speaker 02:
Okay, go ahead.

[00:00:29] Speaker 00:
May it please the court.

[00:00:31] Speaker 00:
I stand before you today to argue on behalf of my client, Leonard Sistak.

[00:00:35] Speaker 00:
a former official with the Department of Veterans Affairs in Denver, Colorado.

[00:00:39] Speaker 00:
As I'm sure you are aware from reading the briefs, Mr. Sistak is a whistleblower who disclosed, among other things, that over $43 million in appropriated funds were illegally parked at the government printing office.

[00:00:49] Speaker 00:
I'm here because we believe Mr. Sistak has been reprised against through a retaliatory investigation in an effort to change his behavior, that is, to quell future disclosures as well as to chill others from engaging in lawful whistleblower activity.

[00:01:02] Speaker 00:
From the outset,

[00:01:03] Speaker 00:
And before we discuss a narrow legal issue before you today, I would like to identify four key factual points that may be helpful as we discuss the law and questions surrounding it.

[00:01:12] Speaker 00:
With respect to the Administrative Investigation Board, there were at least four concerns in co-regarding the three-day MSPB hearing.

[00:01:18] Speaker 00:
First, Mr. Sistek was informed that he was to appear before an AIB investigation as a witness, only later to learn that while he was appearing that he was a subject of an investigation, a violation of a VA directive.

[00:01:32] Speaker 00:
Three individuals were named as members of the AIB, of the Administrative Investigation Board.

[00:01:39] Speaker 00:
One of those individuals, Mr. David Isaacs, was removed from the board as he had a direct conflict of interest in the matter.

[00:01:46] Speaker 00:
Three, Ms.

[00:01:48] Speaker 00:
Clara Hajuk, one of the individuals who was a member of the board,

[00:01:53] Speaker 00:
conducted an informal fact-finding prior to becoming a member of the investigation board, thus having knowledge of some of the issues she was conducting an investigation about, therefore not being an impartial fact-finder.

[00:02:06] Speaker 00:
And four, I would draw your attention to Appendix, Joint Appendix, page 71, where the AIB investigation identifies an allegation, allegation number four.

[00:02:18] Speaker 02:
Allegation of inappropriate use of the fact-finding process by managers in the Denver CBO office on so I guess one of the things you are is that the investigation here Perhaps not itself a personnel practice Was in the circumstances here because it resulted in a change in working conditions correct and I guess I'm having some difficulty with that.

[00:02:45] Speaker 02:
I think it's

[00:02:46] Speaker 02:
It certainly could be the case if he conducted, if the government conducted an investigation which was so disruptive of the ordinary work process that it might fall under that category.

[00:02:59] Speaker 02:
But here, the only thing that happened to him, if I recall correctly, is that he was subjected to a single interview.

[00:03:08] Speaker 02:
Am I correct about that?

[00:03:09] Speaker 02:
That is correct, Your Honor.

[00:03:10] Speaker 02:
However, within, I'm sorry.

[00:03:13] Speaker 02:
So well, I guess then my question is how

[00:03:15] Speaker 02:
How was it that the investigation caused a change in working conditions if we just had a single interview?

[00:03:23] Speaker 00:
Well, in this particular case, within the AIB, within the finding on Appendix 73, where the board sustained the allegation that the Denver CBO Office was using fact findings inappropriately, the purpose of investigations

[00:03:39] Speaker 00:
that they found within the AIB was that they were being used as tools to go after, effectively, individuals.

[00:03:45] Speaker 00:
Let me step back for a moment as well to talk about the larger issue about retaliatory investigations.

[00:03:50] Speaker 02:
Well, Congress has made pretty clear that retaliatory investigations in and of themselves aren't a prohibited personnel practice, right?

[00:03:58] Speaker 00:
Your Honor, from looking at the congressional record,

[00:04:01] Speaker 00:
Congress and the Senate record, they wanted to ensure that they did not make just any investigations to be personnel actions.

[00:04:09] Speaker 00:
There was concern that by saying that investigations would therefore be one of the enumerated personnel actions under Title V, that that would create a situation where anybody can claim, for example, a security clearance investigation, a, I don't want to say a rudimentary, but a typical investigation, a fact finding, somebody then can claim reprisal.

[00:04:29] Speaker 00:
In this particular case, what Congress did was they wanted to enhance protections for whistleblowers from being retaliated against from investigations, but they chose a middle ground.

[00:04:40] Speaker 00:
And looking back at the Russell case, because they deferred back to Russell, they did not want to change necessarily the jurisprudence in that area.

[00:04:48] Speaker 00:
In order for retaliatory investigation to exist,

[00:04:52] Speaker 00:
One, there had to be a subsequent personnel action, which occurred in this case.

[00:04:55] Speaker 00:
There was a letter of reprimand that Mr. Sistak received following the AIB.

[00:05:01] Speaker 00:
And two, the investigation, the retaliatory investigations already fall under

[00:05:15] Speaker 00:
the significant change in duties, responsibilities, and working conditions.

[00:05:18] Speaker 01:
So there was no... You thought it was that the investigation had to be closely related to that personnel act?

[00:05:23] Speaker 00:
Correct, and it was.

[00:05:24] Speaker 00:
So if there is a close relationship to it, then we can pull in the investigation to determine whether or not there was a retaliatory basis for the investigation.

[00:05:32] Speaker 00:
Was the investigation initiated for purposes of targeting a whistleblower?

[00:05:37] Speaker 02:
I don't read Russell that way.

[00:05:40] Speaker 02:
Admittedly, Russell is not 100% clear, but I would read Russell as saying that if there's this close relationship, then the investigation becomes part of the prohibited personnel practice and could be considered, for example, at the stage where the government's trying to prove by clear and convincing evidence that it would have taken the same action anyway, which seems to be how the investigation was used in the Russell case itself.

[00:06:10] Speaker 00:
Understood.

[00:06:10] Speaker 00:
And I understand that that's what a lot of individuals believe in so far, is that the investigation can become part of the clear and convincing analysis to determine whether or not the subsequent personal action was taken in reprisal.

[00:06:24] Speaker 00:
However, in looking at Russell, and I'll just quote this section here, it says that, quote, when we ask here, an investigation so closely related to the personal action that it could have been a pretext for gathering evidence or retaliating

[00:06:38] Speaker 00:
And the agency does not show by clear and convincing evidence that the evidence would have been gathered absent the protected disclosure.

[00:06:45] Speaker 00:
Then the appellant will prevail on his affirmative defense of retaliation for whistle-blowing.

[00:06:51] Speaker 00:
And that's talking about the investigation, not just the subsequent personnel action, but was the investigation initiated for purposes of targeting an individual.

[00:07:00] Speaker 00:
So the issue, therefore, is to ensure that investigations are not being used purely as retaliatory tools.

[00:07:09] Speaker 01:
In fact... In your view, Russell says the investigation is relevant to the board's analysis of the contributing factor, as well as whether the government would have taken that action any later.

[00:07:22] Speaker 00:
Correct.

[00:07:24] Speaker 01:
Can I ask you something else?

[00:07:25] Speaker 01:
In this case, something I don't see in your brief is an explanation of what the investigation would add to change the board's determination on contributing factor.

[00:07:42] Speaker 01:
Because both Kindred, the board made a fact finding that Kindred did not have knowledge

[00:07:51] Speaker 01:
of the disclosures to OIG.

[00:07:54] Speaker 01:
Correct.

[00:07:54] Speaker 01:
So how would this even be helpful?

[00:07:57] Speaker 00:
It would be helpful because two of the individuals who were members of the board had knowledge of Mr. Sistak's disclosure.

[00:08:03] Speaker 00:
In fact, one individual, if I recall correctly from the hearing, Ms.

[00:08:09] Speaker 00:
Hajik, I believe she testified that she had knowledge of Mr. Sistak's disclosure prior to that because Mr. Sistak would regularly discuss his protected activity.

[00:08:20] Speaker 00:
So and this is our members of the board who were conducted the investigation correct That's miss Claire had you and this Claire had you actually conducted an investigation prior to being on the board So if we step back for a moment in that particular case She was prior to the AIB being initiated prior to becoming a member of the board was conducting an independent

[00:08:44] Speaker 00:
unofficial fact-gathering about the exact same issues that she was appointed to be a member of the board to then investigate so when she was appointed she already had information that a normal investigator wouldn't have in her Mind was perhaps already painted going into that investigation So there's a concern about why that investigation was initiated and and going back and I asked you one other The other question I have is was this argued?

[00:09:14] Speaker 01:
Yes.

[00:09:16] Speaker 01:
Where?

[00:09:17] Speaker 00:
We were arguing that, or it was discussed before the board about the issue of how the investigation was being conducted to establish that there was a retaliatory purpose for the investigation.

[00:09:32] Speaker 00:
So as to go out, so as to target Mr. Sissig both through the investigation and then the subsequent personnel action.

[00:09:37] Speaker 01:
Focusing particularly on the board members.

[00:09:40] Speaker 00:
Correct.

[00:09:41] Speaker 00:
Correct.

[00:09:41] Speaker 01:
During the course of... Reliance on Russell.

[00:09:43] Speaker 01:
I mean, I know you've got multiple different arguments you've presented before us for why the investigation should be considered.

[00:09:50] Speaker 01:
One of them is the hostile work environment.

[00:09:53] Speaker 01:
The other one is the Russell argument, and then just an argument that investigation should be considered a personnel action.

[00:10:01] Speaker 01:
Maybe you've got something separate there, too.

[00:10:04] Speaker 01:
Was the Russell argument made to the board?

[00:10:07] Speaker 00:
Yes, it was.

[00:10:08] Speaker 00:
During the course of the, when the administrative judge requested for briefs on a specific topic, we presented briefs arguing Russell as well.

[00:10:17] Speaker 01:
You have those in the record, like in our appendix?

[00:10:20] Speaker 00:
I don't believe I do.

[00:10:21] Speaker 00:
I have to take a look.

[00:10:23] Speaker 00:
But we did provide those documents, or we provided that brief.

[00:10:28] Speaker 00:
And the arguments are similar to what we're providing for this.

[00:10:32] Speaker 03:
What about in your blue brief here?

[00:10:35] Speaker 03:
I guess I'm not remembering mention of the role in the Administrative Investigative Board of somebody other than Kindred.

[00:10:46] Speaker 00:
We mentioned, we discussed Ms.

[00:10:49] Speaker 00:
Hagek's, the concern that Ms.

[00:10:50] Speaker 00:
Hagek, which I believe we did, about her activity, and that's one of the reasons why we're here today, is how the investigation was conducted, okay?

[00:11:03] Speaker 00:
So when I'm talking about concerns about the fact-finding process, we're talking about the makeup of the board.

[00:11:10] Speaker 00:
We had one individual who had to be removed from the board because of conflict of interest.

[00:11:15] Speaker 00:
Two, we had Ms.

[00:11:15] Speaker 00:
Hajuk, who we were concerned about there being a preliminary fact-gathering process before she was actually a member of the actual investigative board.

[00:11:25] Speaker 00:
And we also have concerns about

[00:11:29] Speaker 00:
The fact that Mr. Sistek was informed about the existence of an investigation, told that he's going to be a witness, shows up to the interview, is told he's the subject of the investigation.

[00:11:40] Speaker 00:
And oh, by the way, the board was not convened until the day after Mr. Sistek was interviewed.

[00:11:46] Speaker 00:
So you're literally having the cart before the horse.

[00:11:48] Speaker 00:
There were a number of deficiencies throughout this process with the AIB, which causes concern that this was designed to reprise or target Mr. Sistek because he's a whistleblower.

[00:11:58] Speaker 01:
Where in your blue brief would you direct us to for where the point about Ms.

[00:12:05] Speaker 01:
Hadrick was made?

[00:12:07] Speaker 00:
I'd have to look it back in the blue brief.

[00:12:10] Speaker 02:
You can maybe do that and answer that question on the reply.

[00:12:13] Speaker 02:
Could I just back you up for a moment so I understand where we are?

[00:12:16] Speaker 02:
I understand the Russell argument that you've just been making.

[00:12:20] Speaker 02:
thought also that you were arguing that the investigation itself quite a part to this close relationship theory resulted in a change in working conditions.

[00:12:32] Speaker 02:
Yes.

[00:12:33] Speaker 02:
And I started out asking you about that.

[00:12:35] Speaker 02:
But are you still arguing that, that the investigation alone was a change in working conditions?

[00:12:42] Speaker 02:
Absolutely.

[00:12:43] Speaker 02:
And how could that be when all it did was result in a single interview?

[00:12:49] Speaker 00:
It may have resulted in a single interview, but we have to step back and understand what the purpose is, a purpose for an investigation is.

[00:12:56] Speaker 00:
When somebody's under investigation, and I just want to step back beyond this case because this will apply to all federal cases potentially down the road, when somebody's under investigation, potentially they're, depending on the investigation, they may not be able to be promoted.

[00:13:10] Speaker 02:
There may be an impact on their but the problem with that argument is that as you just said that's true of every investigation and it would make all Investigations potentially prohibited personnel practices retaliatory investigations.

[00:13:25] Speaker 02:
So it goes back to the hook that in order for us That's what Congress made clear that retaliatory investigations in and of themselves Can't be a prohibited personnel practice

[00:13:36] Speaker 00:
And my position is that I view them as a separate personnel action as well that falls under a significant change in duties, responsibilities, and working conditions.

[00:13:45] Speaker 00:
Because?

[00:13:47] Speaker 00:
Because based on Russell, on the Russell finding, as well as I believe it's a 2010 MSPB whistleblower guidebook, they cite to Russell as stating that retaliatory investigations

[00:14:01] Speaker 00:
are part of a significant change in duties, responsibilities, and working conditions.

[00:14:05] Speaker 00:
And that brings me back to this key point, is that Congress wanted a middle ground.

[00:14:09] Speaker 00:
They did not want to create, as you rightly, sir, point out, Your Honor, you point out, is that we don't want to have a situation where all investigations, like a security clearance investigation or a background investigation

[00:14:20] Speaker 00:
is viewed as potentially a process.

[00:14:22] Speaker 01:
Did they actually give those two examples?

[00:14:24] Speaker 01:
I don't recall that.

[00:14:25] Speaker 00:
No, no.

[00:14:25] Speaker 00:
It's something I'm bringing up right now as I'm thinking through this process.

[00:14:29] Speaker 00:
That distinguishes it from a retaliatory investigation because it's being used as a tool.

[00:14:36] Speaker 02:
So in order for, I think that's a tough, to me, that's a tough argument.

[00:14:40] Speaker 02:
I mean, putting aside the Russell plot, which is different.

[00:14:43] Speaker 02:
to say that any investigation results in a change in working conditions, would say that any retaliatory investigation is a prohibited personnel practice, which seems to be exactly what Congress didn't want.

[00:14:57] Speaker 00:
Well, respectfully, I would suggest that looking back at Russell, in order to say that there has to be retaliatory investigation, to get to that point, we have to see that there was a subsequent personal action to bring in the investigation to determine whether or not it's retaliatory.

[00:15:12] Speaker 00:
We had that happen here.

[00:15:13] Speaker 00:
We went back and we looked at the genesis for why, for example, there was the letter of reprimand.

[00:15:18] Speaker 00:
The letter of reprimand was based upon what I view as a retaliatory investigation.

[00:15:25] Speaker 00:
And so that is the purpose of Russell.

[00:15:27] Speaker 00:
And I'll just quote this one point from Russell in its conclusion that the agency must show clear and convincing evidence that the evidence would have been gathered absent to protect the disclosure to establish that the purpose of gathering the evidence was to retaliate

[00:15:43] Speaker 00:
to hold otherwise would sanction the use of a purely retaliatory tool, selective investigations.

[00:15:48] Speaker 00:
And that's the point here.

[00:15:49] Speaker 00:
It's selective investigations.

[00:15:51] Speaker 00:
I'm not talking about investigations globally.

[00:15:53] Speaker 01:
The way I'm distinguishing it... It's a little bit circular, though, to be honest.

[00:15:57] Speaker 01:
So there's a determination

[00:16:01] Speaker 01:
that investigations are not alone going to be a personal action because you don't want to chill investigations.

[00:16:08] Speaker 01:
But you're presuming that it's retaliatory before you even determine that it's a personal action.

[00:16:14] Speaker 01:
Does that make sense?

[00:16:17] Speaker 00:
I'm having a hard time with that.

[00:16:19] Speaker 00:
So the way I'm viewing this is that because we had a subsequent personnel action following Russell, which allows us to look back at the initiating activity, which is an investigation, you can then determine, because you're conducting fact finding, whether or not that investigation was initiated for purposes of retaliation.

[00:16:36] Speaker 01:
That's your Russell theory.

[00:16:38] Speaker 01:
Yes.

[00:16:38] Speaker 01:
This isn't separately just focusing on your

[00:16:42] Speaker 01:
you know, change in work circumstances or hostile work environment.

[00:16:45] Speaker 00:
Right.

[00:16:47] Speaker 01:
And so that, just focusing on that and setting Russell aside, how, what other things, one of the questions that I could answer earlier that I didn't, I don't think he fully answered was, what is it besides a single interview and then a letter of reprimand, just the single interview for the investigation?

[00:17:06] Speaker 00:
It impacts not only the client's ability to go into the office every day wondering whether or not, because they're a whistleblower, they're going to be targeted through investigation.

[00:17:14] Speaker 00:
It also impacts everybody in the office.

[00:17:16] Speaker 00:
Having worked in the federal government myself.

[00:17:18] Speaker 02:
That's true of every retaliatory investigation.

[00:17:20] Speaker 00:
But if it's retaliatory, then it's reprisal.

[00:17:25] Speaker 00:
I mean, that's the distinction between retaliatory investigation and an investigation.

[00:17:30] Speaker 00:
Having having a security clearance investigation is not comfortable, but I know that that investigation is not being designed to target me I think unless my colleagues have other questions.

[00:17:42] Speaker 02:
I think we're out of time.

[00:17:42] Speaker 02:
We'll give you two minutes for rebuttal.

[00:17:44] Speaker 02:
Okay, thank you Mr. Maker Thank you

[00:18:01] Speaker 02:
it please the court uh... congress expressly did not provide retaliatory investigations are a personnel action in support suppose hypothetically had a situation where there was an investigation was alleged to be retaliatory and every day every workday the employee is called in for a one-hour interview and

[00:18:28] Speaker 02:
Would that be a change in working conditions that could?

[00:18:33] Speaker 04:
That very likely would.

[00:18:34] Speaker 04:
I mean, the statute does cover significant changes in responsibilities, duties, and working environments.

[00:18:39] Speaker 02:
So an investigation could end up being a prohibited personnel practice if it were sufficiently disruptive of the work day or the work

[00:18:48] Speaker 04:
That's correct, Your Honor.

[00:18:49] Speaker 04:
If it rises to the level of the significant change in duties, responsibilities, or working environments, either because the employee has duties that are being shifted as a result of the investigation, or he's, as in your example, being called in regularly so that his working conditions have changed.

[00:19:08] Speaker 04:
But that is actionable under the Whistleblower Protection Act,

[00:19:12] Speaker 04:
not because it's an investigation, it's actionable because it's a significant change in duties, responsibilities, and working conditions.

[00:19:30] Speaker 04:
And there are no fact findings in that regard.

[00:19:34] Speaker 04:
The factual arguments were not made before the board.

[00:19:38] Speaker 04:
The submissions on the issues are actually included in the appendix.

[00:19:45] Speaker 04:
I know there was a question about whether those briefs with regards to the jurisdictional actions were included in the appendix.

[00:19:51] Speaker 04:
They actually are in there.

[00:19:54] Speaker 04:
only an excerpt from the government briefs, but I believe we have... I don't understand Mr. Sestek's briefs.

[00:19:59] Speaker 03:
Excuse me, I don't understand Mr. Sestek to be even arguing that point in this case.

[00:20:05] Speaker 03:
namely that if the inquiry were whether, in this particular case, this particular investigation so disrupted his work as to come within the catch-all clause of the definition.

[00:20:19] Speaker 03:
I don't even think that's at issue here.

[00:20:22] Speaker 03:
But you acknowledge that in a case in which there was such evidence, it might well be proved.

[00:20:28] Speaker 04:
Yes, Your Honor.

[00:20:28] Speaker 04:
The argument in the brief that was presented, I believe, was as a matter of law.

[00:20:31] Speaker 03:
Right.

[00:20:32] Speaker 03:
So what about putting aside

[00:20:35] Speaker 03:
the in and of itself characterization of an investigation as a personnel action, assume that Congress said, no, we don't want that, and putting aside a case in which the investigation causes disruption, the disruption being therefore qualifying under the catch-all working conditions clause.

[00:20:56] Speaker 03:
What do you understand under Russell or otherwise

[00:21:01] Speaker 03:
there to be in the way of a role for looking at an investigation as part of the inquiry into whether a distinct personnel action is subject to corrective action.

[00:21:18] Speaker 04:
Well, the board should should be should and and should allow evidence to be presented with regards to that investigation.

[00:21:26] Speaker 04:
And if you have a disclosure and which which of the elements would it bear on conceivably.

[00:21:33] Speaker 04:
Well, it wouldn't bear upon whether or not there's a protected disclosure.

[00:21:36] Speaker 04:
That's not an issue in this case.

[00:21:38] Speaker 03:
Or whether there was a separate personnel action.

[00:21:41] Speaker 03:
We're assuming there was a separate personnel action.

[00:21:42] Speaker 03:
So there's kind of two parts of the test for the link between those two things.

[00:21:48] Speaker 03:
One kind of contributing factor, the other immaterial.

[00:21:51] Speaker 04:
I think it fits in within the contributing factor elements.

[00:21:56] Speaker 01:
Because... You said... Could you speak up a little?

[00:21:59] Speaker 01:
Sorry, I apologize.

[00:22:00] Speaker 04:
I'll try to make sure I speak up.

[00:22:02] Speaker 04:
I said the contributing factor element, your honor.

[00:22:05] Speaker 01:
And it does fit within contributing factor.

[00:22:07] Speaker 04:
It could fit within contributing factor if we have a personnel action and we have a personnel action where those disclosures were a contributing factor.

[00:22:19] Speaker 04:
Here, I mean, it's notable, I mean, counsel... I'm confused.

[00:22:23] Speaker 02:
I mean, it seems to me that there may be at least two ways of looking at Russell.

[00:22:29] Speaker 02:
One,

[00:22:30] Speaker 02:
is that it says if it's closely related and if you determine that some other action is a prohibited personnel action, then you consider the investigation to be part of that prohibited personnel action and it relates to the question of whether the government would have removed the person anyway and it has to be part of the car factor analysis.

[00:22:51] Speaker 02:
That seems to be

[00:22:52] Speaker 02:
largely what happened in Russell itself.

[00:22:55] Speaker 02:
The alternative way of looking at Russell is that you can use the retaliatory investigation to make the finding that the other action here, the letter of reprimand, was a prohibited personnel practice.

[00:23:10] Speaker 02:
So which of those two do you think Russell leaves room for?

[00:23:17] Speaker 04:
I don't think it would be here.

[00:23:22] Speaker 04:
Possibly I suppose the second, but I really don't see that in Russell.

[00:23:26] Speaker 04:
I mean and it's I mean focusing on The facts of this case.

[00:23:32] Speaker 04:
I mean we have Although it's not the appendix about the facts of this case.

[00:23:37] Speaker 02:
How do you interpret Russell what?

[00:23:40] Speaker 02:
What is the significance of a retaliatory investigation?

[00:23:44] Speaker 02:
That's in some way closely related to another personnel practice

[00:23:52] Speaker 04:
If the relationship, well, first off, it has a direct relationship in terms of damages you could recover for the personnel action that you would have corrective action for.

[00:24:04] Speaker 04:
So that's expressly included elsewhere in the statute at, I believe it is 1221G4.

[00:24:14] Speaker 04:
So it's an element of damages, enhanced damages that were provided in the Civil Law Protection Enhancement Act.

[00:24:20] Speaker 04:
Um, with regards to receiving that evidence and work, I'd fit quite sit in.

[00:24:25] Speaker 04:
Russell isn't entirely clear, um, about how exactly it fits in.

[00:24:31] Speaker 04:
Um, it does provide the board to consider evidence.

[00:24:34] Speaker 04:
Russell case we had.

[00:24:36] Speaker 04:
demotions and other actions against the the whistleblower that were expressly found to be contributing factors, so It's difficult to exactly figure out whether or not it's Listed as a pendant whether Russell intended how Russell fit it into the scheme And I don't think you get I don't think you can get that really from Russell because Russell is is rather ambiguous the board clearly was statute preserve Russell and

[00:25:06] Speaker 04:
The statute preserves Russell, and it preserves the definition found in Russell for retaliatory investigations and takes and incorporates it into the damages measure.

[00:25:20] Speaker 02:
Well, apart from the damages measure, it preserved Russell.

[00:25:27] Speaker 02:
Russell's holding?

[00:25:31] Speaker 04:
I believe it does, Your Honor.

[00:25:33] Speaker 04:
Because Congress was expressly aware.

[00:25:34] Speaker 02:
So that leads us to figure out what Russell meant.

[00:25:37] Speaker 04:
Yes.

[00:25:39] Speaker 04:
But one of the difficulty, or what Congress felt Russell meant.

[00:25:42] Speaker 04:
And if you turn to the legislative history, Congress expressed a clear concern about chilling investigations, including management inquiries and potential wrongdoing in the workplace as here.

[00:25:55] Speaker 04:
So it wasn't simply just about chilling security clearance investigations.

[00:25:59] Speaker 04:
It's about investigations into wrongdoing, which were the concerns here.

[00:26:02] Speaker 04:
There was an individual at VA who was in an inappropriate relationship with an inferior subordinate.

[00:26:09] Speaker 04:
And so there was a reason to investigate that and to try to determine what had been done in order to try to remedy the situation.

[00:26:19] Speaker 04:
Mr. Sistak ended up

[00:26:20] Speaker 04:
wrapped up in that because Mr. Sistak had had a conversation with the individual and failed to take any further action on that.

[00:26:30] Speaker 04:
I'll note that initially, despite the focus on Ms.

[00:26:33] Speaker 04:
Hagek, Ms.

[00:26:34] Speaker 04:
Hagek and Ms.

[00:26:35] Speaker 04:
Nightingale's recommendation at the conclusion of the investigation was that no charges against Mr. Sistek should be sustained.

[00:26:42] Speaker 04:
It was only later, after Ms.

[00:26:43] Speaker 04:
Hagek retired, a second individual came in, Nikki Craven, and Ms.

[00:26:48] Speaker 04:
Craven had recommended that because he had failed to take any action that he be subject to receiving a letter of reprimand in his file.

[00:26:56] Speaker 04:
So neither of the investigators had recommended any action against Mr. Sistek.

[00:27:03] Speaker 04:
It was only subsequently when Ms.

[00:27:05] Speaker 04:
Craven came in.

[00:27:05] Speaker 04:
And Ms.

[00:27:06] Speaker 04:
Craven testified, although this is not found in the record before his court, Ms.

[00:27:09] Speaker 04:
Craven had testified at the hearing that she had no knowledge of his disclosures.

[00:27:16] Speaker 04:
And that was, although we have to acknowledge there's no fact finding specifically from the board on it.

[00:27:22] Speaker 03:
So suppose it were the case, and I just assumed this, perhaps contrary to the record in this case, that Ms.

[00:27:31] Speaker 03:
Kindred did know about one or more of the protected disclosures, whether the 2012 or 2013 ones or maybe the February 4th one, and were

[00:27:51] Speaker 03:
could be found to have initiated the investigation, knowing of those disclosures, perhaps with a retaliatory motive, and then it gets to an ultimate

[00:28:07] Speaker 03:
decision by, was it Ms.

[00:28:09] Speaker 03:
Amos who wrote, who issued the letter of reprimand in the summer of 2014?

[00:28:15] Speaker 03:
Would the retaliatory character, by assumption here, of Ms.

[00:28:21] Speaker 03:
Kindred's initiation of the investigation bear on whether to believe, whether to attribute, sorry, to Ms.

[00:28:33] Speaker 03:
Amos's decision

[00:28:35] Speaker 03:
the investigation as a contributing factor.

[00:28:40] Speaker 04:
I believe it would in that case.

[00:28:41] Speaker 04:
Yes, under that hypothetical, and that's not the case here because neither Ms.

[00:28:46] Speaker 04:
Amos nor Ms.

[00:28:47] Speaker 04:
Kindred were found to have actual or constructive knowledge of the disclosures.

[00:28:51] Speaker 04:
But in that case, yes, I think that hypothetical... So as I understand it, there's a paragraph about Ms.

[00:28:58] Speaker 03:
Amos which says

[00:28:59] Speaker 03:
neither actual nor constructive of any of the disclosures.

[00:29:02] Speaker 03:
The preceding paragraph about Ms.

[00:29:04] Speaker 03:
Kindred refers to the 2012 and 2013 disclosures, but not to this February 4th disclosure.

[00:29:12] Speaker 03:
It just doesn't say one way or the other.

[00:29:14] Speaker 04:
But the problem is February 4th is after the AIB and the investigation had already

[00:29:19] Speaker 04:
occurred.

[00:29:20] Speaker 03:
There may be an important, and I don't mean to diminish it, technicality about whether the investigation was launched by January 29th or not until the next day on February 5th, but there's just no finding about that.

[00:29:31] Speaker 04:
Yes, and Your Honor, let me note, just to clarify for the sake of the record, in his reply brief, Petitioner contends it's suspicious that the board that heard him was appointed the day after, but that isn't suspicious quite simply because he had already been called in for the

[00:29:49] Speaker 04:
For the interview the board had been appointed with three members some concerns were raised and the record reflects concerns were raised about one of the members so they chose to proceed with simply two members, but that required a new appointment letter so the appointment with with one of the investigators having been removed a new appointment letter had to be issued and

[00:30:11] Speaker 04:
even though initially it was going to be with three individuals.

[00:30:15] Speaker 04:
So I don't think there's anything suspicious at all about the timing on that.

[00:30:20] Speaker 03:
Do you think, getting back I guess a little bit to the legal structure surrounding what it is we are to decide, that Congress sufficiently endorsed Russell that our task is to figure out what Russell said or using

[00:30:39] Speaker 03:
some kind of endorsement of Russell as a springboard to indicate what role an investigation might play in deciding whether something that does qualify as a personal action on its own is actionable.

[00:31:01] Speaker 04:
I think it is a significant task to attempt to discern from the legislative history what Congress

[00:31:09] Speaker 04:
believed Russell meant.

[00:31:11] Speaker 04:
One of the difficulties of this court attempting to discern on its own what Russell meant is we would have to try to determine what Congress felt Russell meant.

[00:31:20] Speaker 04:
And that isn't really clear from either the legislative history or the text of the statute other than it would seem that the definition of retaliatory investigation, at least as it relates to damages, was incorporated and that

[00:31:35] Speaker 04:
from looking at the legislative history, there was a concern about the chilling of actual investigations by the threat of litigation.

[00:31:44] Speaker 04:
But attempting to discern, I think it's a difficult if not impossible task to attempt to discern what Congress believed Russell stated, given the ambiguity in Russell.

[00:31:55] Speaker 01:
I was just going to ask you two questions.

[00:32:00] Speaker 01:
One was,

[00:32:02] Speaker 01:
In this significant change argument being made by Mr. Sistak with respect to the investigation, being a significant change and falling within that definition of a personnel action, do you see where the board actually ruled on that in its opinion?

[00:32:20] Speaker 04:
I see that they didn't accept it as a personnel action, but I mean the entirety of their ruling would be found on appendix

[00:32:32] Speaker 04:
pages eight and nine.

[00:32:34] Speaker 04:
And now I think they focus primarily on the question of whether or not it was included as a personnel action.

[00:32:46] Speaker 04:
They don't expressly address it.

[00:32:49] Speaker 01:
Okay.

[00:32:49] Speaker 01:
And then similarly, in your brief, you seem to

[00:32:56] Speaker 01:
concede that the board could consider the investigation as part of the reprimand letter analysis.

[00:33:02] Speaker 01:
And the board cites to Russell.

[00:33:05] Speaker 01:
But I don't see them anywhere really grappling with how that investigation and the reprimand letter, they don't actually apply Russell, in other words.

[00:33:18] Speaker 01:
They give homage to it and cite Russell and say that the investigation could be considered as part of looking at

[00:33:26] Speaker 01:
the reprimand letter, but they don't really say, they don't really do an application of that.

[00:33:32] Speaker 01:
Do you think I'm missing anything?

[00:33:33] Speaker 04:
No, I mean, I don't know of any actual fact findings related to the investigation other than those few pages that exist and the pages it's talking about in terms of whether or not it's a personnel action.

[00:33:45] Speaker 02:
Why under your view of Russell?

[00:33:48] Speaker 04:
Because, Your Honor, the issue raised on appeal is whether or not it was a personnel action in the first instance.

[00:33:56] Speaker 04:
And secondly, you know, I believe even if the Board did err, neither Ms.

[00:34:03] Speaker 04:
Kindredge or Ms.

[00:34:04] Speaker 04:
Amos had knowledge of the protected disclosures.

[00:34:07] Speaker 04:
So I don't think you can get to... Is that for us to determine?

[00:34:12] Speaker 04:
That's actually a finding of the Board.

[00:34:14] Speaker 04:
Where is that a finding of the Board?

[00:34:16] Speaker 04:
Page 10 and 11 of the appendix, Your Honor.

[00:34:20] Speaker 04:
Specifically, second paragraph down on page 10 and the next to last paragraph on appendix 11.

[00:34:34] Speaker 01:
So this goes to even if the investigation could be considered as part of Russell, they wouldn't change the outcome here?

[00:34:41] Speaker 04:
Yes, Your Honor.

[00:34:42] Speaker 04:
I'm out of time unless the Court has further questions.

[00:34:51] Speaker 02:
I'm not sure that I see where this finding about the individuals responsible for the investigation is made.

[00:35:05] Speaker 02:
I see a finding about Amos, but where is the other finding?

[00:35:09] Speaker 04:
The other finding would be on Appendix 11, Your Honor.

[00:35:12] Speaker 04:
Which sentence?

[00:35:13] Speaker 04:
That would be, and I will, I'm sorry, your finding.

[00:35:18] Speaker 04:
Amos on Appendix 10 is kindred.

[00:35:20] Speaker 04:
Kindred was the management official who raised.

[00:35:22] Speaker 04:
Kindred had neither actual nor constructive knowledge of the August 2012, October 2013 OIG closures by Appellee.

[00:35:30] Speaker 02:
Accordingly, I find... Kindred is the one who initiated the investigation.

[00:35:33] Speaker 04:
Kindred initiated the investigation, Your Honor.

[00:35:39] Speaker 02:
Thank you.

[00:35:39] Speaker 02:
Thank you.

[00:35:42] Speaker 02:
Okay, she's got two minutes.

[00:35:46] Speaker 00:
I would just like to address three very brief points.

[00:35:50] Speaker 00:
First, with respect to the analysis as to whether or not this investigation was a reprisal, that would have to be determined ultimately by the board back on remand.

[00:35:59] Speaker 00:
The issue here, I believe, is whether or not Russell should be looked at again, and I believe it has to be.

[00:36:07] Speaker 00:
Looking at the Russell decision here right now, one of the conclusions is that

[00:36:12] Speaker 00:
An agency's selective use of investigations, i.e.

[00:36:15] Speaker 00:
his choice to investigate a whistleblower because of his or her status as a whistleblower, will contravene the goal of there being no harm to the whistleblower.

[00:36:24] Speaker 00:
And in Russell, they consider the appellant's claim of, quote, retaliation by investigation.

[00:36:31] Speaker 00:
So again, it goes back to the distinction of why did Congress not want to include as an investigation, as a named personnel action?

[00:36:40] Speaker 00:
It's because we don't want to prevent

[00:36:42] Speaker 00:
Your Honor, as you mentioned, you mentioned investigations by management, management-directed investigations.

[00:36:51] Speaker 00:
Looking to see what the genesis of the investigation is, once there is a personal action and you go through the visible reprisal analysis, you can determine whether or not that investigation was initiated for purposes of trying to figure out what was going on in an office, perhaps mismanagement or just an office that's sick, versus

[00:37:09] Speaker 00:
specifically going after an individual for retaliatory purposes.

[00:37:12] Speaker 00:
Again, is it a retaliatory investigation, or is it a management-directed investigation?

[00:37:17] Speaker 01:
What about the express finding that was just pointed out to us about Kindred, who was the person who started the investigation?

[00:37:25] Speaker 01:
It says she credibly testified that she had no knowledge of the appellant's OIG contacts, and specifically that she had no knowledge of the August 2012 and October 2013 OIG disclosures by the appellant.

[00:37:39] Speaker 00:
And that's why I would go back to the board to determine whether or not, one, had any of the board members who were appointed had any impact in the investigation to diversely target Mr. Sistic.

[00:37:52] Speaker 00:
And two, we also, and it's not really, it's an issue in the briefs, but not something I wanted to focus on was having the administrative judge also go back and

[00:38:05] Speaker 00:
Determine whether or not she followed the guidelines In making witness credibility assessments one of the questions I had asked you before you sat down was where is that in your brief?

[00:38:17] Speaker 01:
Members yeah, did you find it?

[00:38:19] Speaker 00:
I was listening.

[00:38:20] Speaker 00:
I'm sorry.

[00:38:21] Speaker 00:
I don't believe that I made that argument necessarily about the board members I say that for Okay, thank you.

[00:38:29] Speaker 00:
Thank both counsel cases submit