[00:00:01] Speaker 04:
The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

[00:00:14] Speaker 03:
Good morning, everyone.

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The first argued case is number 20, 1893, Lair against the Department of Veterans Affairs.

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Mr. Solomon, proceed.

[00:00:28] Speaker 00:
Good morning, and may it please the court.

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This is a case where we have multiple things going on as far as the ex parte communications.

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There are two different specific ex parte communications that I'd like to focus on, specifically the ex parte communication with the Douglas factor analysis as well as the ex parte communication.

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with the previous investigation that the deciding official ordered and had full access to, while the evidence file contains only redacted and partially included portions of that same investigation.

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This case starts... Mr. Sullivan, this is Judge Laurie.

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I gather you're not contesting the merits, just procedure, is that correct?

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Your Honor, I think this case is something where there is... As the administrative judge found, they actually found several of the charges were unsupported.

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The issue is when there are seven charges and one of the charges is AWOL, and it's undisputed that, you know, that Ms.

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Blair was not there on those days.

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If we do not have a finding that the judge misinterpreted the

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in the law, then it's kind of hard to proceed on the facts, especially in a whistleblower case such as this, where we think that, yes, there are certain things that the agency could have found, but it was disproportionate to this employee, whereas they wouldn't have brought disciplinary action, much less removal against

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Other similarly situated employees had they not been engaging in protective activity.

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So primarily we are looking at the procedural defect especially because we think in particular with the Douglas factor analysis it is so glaring.

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In this case there is a Douglas factor analysis that's included as part of the evidence file.

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It's actually signed a day after the proposal was actually issued.

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There are several findings by the administrative judge that are just incorrect based on the record.

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For example, stating that there was no mention in the record of any sort of discussion of the CBA entitling this layer to receive the evidence file even though that was included.

[00:03:11] Speaker 04:
I think we need to unpack this a little bit so we know exactly what your procedural errors are that you're claiming.

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I mean, with respect to whether she received the information about the AWOL charge, didn't the administrative judge make an express fact finding that she did actually receive that material?

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Yes, Your Honor, there was a fact finding.

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It is based on

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testimony and it does appear to be based on kind of a more in-depth discussion of what the judge was actually looking at.

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It appears to conflate issues together where the judge in this case did kind of take the opinion that the fact that the AWOL was included as part of the specifications and then also the fact that Ms.

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Layer received the previous proposed removal which had

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much of the same evidence and was generally on notice and was able to submit a reply that the evidence file was received.

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As far as the Douglas Factor analysis... Well, with respect to the evidence file then, so what you're saying is that you're asking us to overturn and express fact-finding, right?

[00:04:31] Speaker 00:
Well, I have two ways of looking at it, but yes, I am.

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Okay.

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What did she not know about the AWOL charge?

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Well, Your Honor, I was focusing more on the other two charges here.

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What she bases this off of is there was one employee in particular

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that says that on the day of the proposal that she made a copy of the evidence file and provided it to Ms.

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Lair.

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So that fact-finding by the judge would apply to the AWOL charge even though Ms.

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Lair just keeps ever receiving that, even though she then sent an email request asking for the evidence file which wasn't received, and even though she says in her response to the removal that she never received the evidence file,

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There is a fact finding that, you know, she received most of the evidence for the AWOL charges.

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However, as I pointed out earlier, the Douglas Factor analysis isn't dated until the day after that meeting was set to take place.

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So even on the extraordinarily high standard for overturning a factual determination by an administrative judge,

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I think it's met here to the extent that, you know, her decision does contemplate the Douglas factor analysis as well because, as I mentioned, that wasn't dated until the day after.

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The proposing official testified that that was not an error.

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That was correct.

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He had not completed it until the day after.

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And, you know, the only evidence was ever... Well, wasn't she... Didn't they offer to let her come to HR to see anything she wanted to see and she decided not to?

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So there's a couple of different complications there.

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One is that the agency did not afford the opportunities given within the collective bargaining agreement.

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As she was a bargaining unit employee, it's said that she was just supposed to

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as a matter of course received the evidence file with the proposal and that was never done.

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She also sent email requesting the evidence file and then put again in her response the proposed removal that she never received the evidence file.

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So yes, while there was communication that she could review it at HR, she wasn't entitled to a copy of it without having to do so.

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She did request it via email, did not grant it and then brought it up several times that she didn't have the evidence file.

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But it was all available to her, right, and she chose not to go look at it.

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Well, she was... So, once again, there's several complicating factors here, including that she was only, you know, specifically in that city for the date the proposal was issued, and then she made that request via email partially because she wasn't even in the same city as the ambulance file, so it would have been impractical.

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As I mentioned, it was...

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She is entitled per the master agreement to receive the evidence file as a matter of course.

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And she did request it and it was never provided.

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Okay, but she wasn't in the city because she was somewhere else where she had denied being, correct?

[00:08:01] Speaker 00:
I'm trying to unpack your question there.

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She wasn't in the city.

[00:08:06] Speaker 04:
Well, you say she wasn't in the city even though she had told her supervisor that she was, right?

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And she was directed to be there.

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And that's the whole point.

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She was AWOL because she chose not to be in the city where she was supposed to be.

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Well, yes, that relates to the AWOL charges.

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We're talking about after the receipt of the proposed removal.

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OK.

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So what, on the Douglas factor analysis,

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You say it wasn't done until the day after, but it was done.

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In fact, the record is very clear.

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It was done.

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The person who was in charge of it just forgot to sign it, so they had to go back to him to get it signed.

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But it was there, and it was there in hard copy, was it not?

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Well, his testimony is that he hadn't even reviewed it prior to him reviewing it for signature.

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Also, Ms.

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Blair's testimony, you know, it does contravene testimony that she received any sort of copy of it.

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And in fact, she never received the evidence file at all.

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The only evidence file she received was for the first proposed removal which actually was issued under

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714, that had to be rescinded, that 38 USC 714, the Accountability Act for the Department of Veterans Affairs.

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And that doesn't require a Douglas Factor Analysis.

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So the Douglas Factor Analysis wasn't provided there.

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And then when this was reissued, there was no Douglas Factor Analysis done.

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So they had to do it after the fact.

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There is no

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actual support anywhere in the record that confirms that this was actually completed at any point before, you know, it was signed the day after the proposal was issued.

[00:10:04] Speaker 04:
Well, but AJ made credibility findings with respect to that and found that it was completed, right?

[00:10:11] Speaker 00:
Yes, there is a credibility finding to that extent.

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However, that doesn't take away from the fact that it wasn't actually issued.

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to Ms.

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Lair.

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And Ms.

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Lair's testimony in addition to the proposing official's testimony suggests that it was never completed until after that date.

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And once again coupled with the fact that Ms.

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Lair emailed saying that she didn't have the evidence file and requesting it and then put in her response to the proposed removal that she never received the evidence file.

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Obviously, at that point, the deciding official was on notice that there was an issue here and did not do anything to try to rectify this equation, went forward and ruled on the removal.

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And then on top of, you know, specifically the Douglas Factor analysis, the other issue that we have is the agency conducted an investigation that was coupled with a plethora

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transcripts and summaries that were included as part of the evidence file but only in portions.

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And that investigation was actually ordered by the director who had access to the full investigation but only the select portions that were provided to Ms.

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Lair were in the evidence file so she wasn't able to review potentially helpful or potentially harmful information that the

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deciding official had access to that could have shaped her decision that Ms.

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Laird never receives.

[00:11:53] Speaker 00:
Thank you.

[00:11:56] Speaker 03:
Okay.

[00:11:57] Speaker 03:
Any other point that, Mr. Solomon, that you want to raise in your argument in chief?

[00:12:07] Speaker 00:
No, Your Honor.

[00:12:08] Speaker 00:
Thank you.

[00:12:08] Speaker 03:
All right.

[00:12:09] Speaker 03:
We'll save your rebuttal time.

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We'll hear from Mr. Carhart.

[00:12:15] Speaker 01:
May it please the court?

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This board's decision should be affirmed.

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The board sustained five charges of wrongdoing that the agency brought against Ms.

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Lair and determined that removal was an appropriate penalty.

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On appeal, Ms.

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Lair raises challenges as to the adequacy of the notice she received and whether removal was an appropriate punishment for her misconduct.

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But Ms.

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Lair has provided no reason to disturb the board's conclusion.

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To begin with, Ms.

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Lair hasn't identified any due process

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right that was violated.

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This is for two reasons.

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First, the board concluded, as the courts pointed out, as a factual matter that Ms.

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Blair received all of the evidence that the agency relied upon.

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This factual finding is supported by substantial evidence in the record.

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Specifically, it's supported by the fact that Ms.

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Blair doesn't contest that she received all of the evidence supporting six of the seven charges against her, each charge except the AWOL charge.

[00:13:09] Speaker 04:
I'm trying to sort something out.

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The first time around the agency proposed removal under Title 38, Section 714, and then the second time they proposed removal under Chapter 75 of Title 5.

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Why is that?

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Why change the course?

[00:13:30] Speaker 01:
Well, the agency changed course after getting notice from the OSC that they could proceed with the removal.

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The OSB did say that removal under 7, there's no further obstacles to removal under 714, but the agency nevertheless proceeded under Chapter 75.

[00:13:48] Speaker 04:
It's a different burden of proof for the government, right?

[00:13:52] Speaker 01:
Right.

[00:13:52] Speaker 01:
It's not clear, to my knowledge, it's not clear on the record what the agency's thinking was there, but Ms.

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Blair hasn't challenged the

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the board's decision that the specifications under Chapter 75 were sustained here.

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To continue with what it's undisputed that Ms.

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Lair did receive, as Judge O'Malley pointed out, she also doesn't contest that she received a notice setting forth the charges and proposing that she be removed, and that this notice invited her to go to an HR office and view the evidence against her, which she did not do, and that set forth the dates and times when she was alleged to have been AWOL.

[00:14:41] Speaker 01:
Now, with respect to the evidence that Ms.

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Lair alleges was withheld, Pamela Hoffman was an HR employee testified before the board that she provided Ms.

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Lair with the entire evidence file on August 29, 2018.

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Her testimony is at Appendix 2892 and 2893 of the record.

[00:15:00] Speaker 01:
Ms.

[00:15:01] Speaker 01:
Hoffman's testimony is supported by testimony from Ms.

[00:15:03] Speaker 01:
Hoffman's supervisor, Timothy Hartwell, who testified that he instructed Ms.

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Hoffman to provide the evidence file

[00:15:10] Speaker 01:
to Ms.

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Wehr on August 29, 2018.

[00:15:12] Speaker 01:
Annabee saw Ms.

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Hoffman making a copy of the evidence file that same day.

[00:15:16] Speaker 01:
Mr. Hartwell's testimony is at appendix 3091 and 3092.

[00:15:20] Speaker 04:
What about the Douglas Factor memo though?

[00:15:23] Speaker 04:
If it wasn't finalized until the following day, doesn't that raise a question about whether she got everything that she needed?

[00:15:32] Speaker 01:
Well, Ms.

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Hoffman testified before the board that she had noticed that Dr. Leichhard's signature was missing either the day she gave the evidence file to Ms.

[00:15:44] Speaker 01:
Lair or the day after, after she'd provided the evidence file to Ms.

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Lair, and that she then, once she realized this error, she obtained it from Dr. Leichhard, who was the proposing official, the next day.

[00:15:55] Speaker 01:
The board noted this testimony and it supports Ms.

[00:16:01] Speaker 01:
Hoffman's

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other testimony that she provided the evidence filed to Ms.

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Lair on August 29, 2018.

[00:16:09] Speaker 01:
Ms.

[00:16:10] Speaker 01:
Hoffman's testimony is Appendix 2905-2906 related to this point.

[00:16:17] Speaker 04:
What about the fact that she was found that they did not find that several of the charges sustained?

[00:16:24] Speaker 04:
Does that impact where we are with respect to the actual removal penalty?

[00:16:32] Speaker 01:
Well, because the board sustained five out of the seven charges, and this moves to Ms.

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Lair's other contention, which relates to the way the board weighed the Douglas factors, the board's authority is to assess what the maximum reasonable penalty is in light of the charges that were sustained, as long as the agency hasn't

[00:17:01] Speaker 01:
expressed that it wishes for a lesser penalty to be committed out, which the agency, the board found, did not do in this case.

[00:17:11] Speaker 01:
So the board looked at the five charges that were sustained and assessed whether removal was the appropriate penalty here.

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The board's analysis considered the appropriate factors here.

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The board independently weighed those factors and the board concluded that removal

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was appropriate.

[00:17:33] Speaker 01:
In Ms.

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Flair's opening brief, she argues in a conclusory fashion that there were certain factors the board misapplied.

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This is reading from page 24 of Ms.

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Flair's brief.

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But she hasn't developed any arguments in the way that the board misapplied those factors.

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To the extent she does develop any arguments in a reply brief, those arguments are waived because they were raised for the first time on a reply.

[00:18:04] Speaker 01:
And even if they hadn't been waived, what they amount to asking this court to do is to re-weigh the Douglas factors differently than the board did, which, as this court's president acknowledges, is not the court's function.

[00:18:18] Speaker 04:
With respect to the ones that weren't sustained, the AJ found that the co-workers were actually not being honest.

[00:18:28] Speaker 04:
Why doesn't this just smack a bunch of co-workers going after each other and that maybe there should have been a little bit more assessment of what the motivation was.

[00:18:42] Speaker 04:
Even if it wasn't whistleblower, it might have just been personality conflicts.

[00:18:48] Speaker 01:
Well, the co-workers whose testimony that the board raised questions about, they were not the co-workers whose testimony is relevant to the procedural arguments here.

[00:19:03] Speaker 01:
I just want to make that point at the outset.

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And the charges that were sustained were based on not just testimony but also the board's review of the documents and the testimony of supervisors that the board found had no incentive to retaliate.

[00:19:29] Speaker 01:
against Ms.

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Laird, no reason to single her out.

[00:19:33] Speaker 03:
But the supervisors had, over all the years, given her an outstanding rating.

[00:19:39] Speaker 03:
So just somehow, almost all of a sudden, after 18 years, there seems to be this massive response.

[00:19:51] Speaker 03:
How does one cope with that?

[00:19:54] Speaker 01:
Well, Your Honor, there wasn't just one instance of misconduct that brought about these charges.

[00:20:03] Speaker 01:
There were numerous instances, including a finding substantiated by the board that she had testified dishonestly before the AIB.

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and her decision to not show up for work for eight days.

[00:20:22] Speaker 01:
So that does suggest that there was a change.

[00:20:27] Speaker 01:
But the evidence of intentional misconduct here is strong.

[00:20:34] Speaker 01:
And Ms.

[00:20:35] Speaker 01:
Lair, again, doesn't challenge any of the substantiated findings of wrongdoing.

[00:20:40] Speaker 01:
She did raise as an affirmative defense a whistleblower argument.

[00:20:47] Speaker 01:
But the board concluded that there just wasn't evidence of malice on the part of the deciding official here such that it would constitute a valid whistleblowing affirmative defense.

[00:21:04] Speaker 01:
And Ms.

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Blair hasn't challenged that board conclusion on appeal.

[00:21:09] Speaker 02:
And she would have been removed anyway, right?

[00:21:14] Speaker 01:
Right, exactly.

[00:21:15] Speaker 01:
The board concluded that she would have been removed anyway, because the seriousness of the misconduct was sufficient that removal was appropriate, in addition to the fact that the deciding official here had no malice against her.

[00:21:35] Speaker 01:
So I will just briefly

[00:21:39] Speaker 01:
I will briefly, if I could go back to Ms.

[00:21:47] Speaker 01:
Lara's arguments related to notice.

[00:21:51] Speaker 01:
With respect to the Douglas Memorandum, I would point out too that the notice that she did receive, that she acknowledges receiving in August 2018,

[00:22:03] Speaker 01:
which is at Appendix 158, does note that there was a Douglas analysis that was done in connection with the proposal to remove her.

[00:22:14] Speaker 01:
And in addition to also telling her that she could go review all the evidence that the agency relied upon in a particular HR office.

[00:22:26] Speaker 01:
So Ms.

[00:22:27] Speaker 01:
Blair can't dispute that she was aware of the existence of a Douglas Memorandum

[00:22:31] Speaker 01:
and aware that she had the right to review it by going to an HR office, but she chose not to do so.

[00:22:37] Speaker 01:
Her testimony where she addresses this before the board is at Appendix 3155, and she says she didn't want to go to the office to review it.

[00:22:50] Speaker 01:
That's the basic extent of her explanation.

[00:22:53] Speaker 03:
But doesn't the agreement, the regulations say that she will be provided

[00:23:00] Speaker 03:
with that file, not that you can go and get it if you take the initiative.

[00:23:07] Speaker 01:
The CBA does say that employees, upon request, can obtain a copy of the evidence that's relied on by the agency.

[00:23:22] Speaker 01:
As a factual matter, the board concluded that she did receive all of this evidence.

[00:23:26] Speaker 01:
that the agency relied upon.

[00:23:30] Speaker 01:
As a matter of fact, the board did conclude that she had received all that evidence, so that provision was not violated based on the board's factual findings.

[00:23:43] Speaker 01:
Even assuming that it was, to establish a due process violation, Ms.

[00:23:48] Speaker 01:
Blair would have to show that the evidence was new and material, and she doesn't point to any specific

[00:23:56] Speaker 01:
factors considered in the Douglas Memorandum that she says would have been new and material, or she doesn't point to any way in which her response would have been different if she knew specific information in the Douglas Memorandum, which is 169 to 171 of the record.

[00:24:12] Speaker 03:
You're not asking us to find that unharmless error, that if she actually had done or been provided with something that she was entitled to be provided with, that it doesn't matter if there was nothing there that would have changed anything.

[00:24:33] Speaker 01:
No, Your Honor.

[00:24:34] Speaker 01:
To be clear, what we're arguing is that even if the court overturns the board's factual findings related to whether she'd received the evidence file, Ms.

[00:24:47] Speaker 01:
Blair still has the burden of showing that the information that wasn't provided to her is new and material.

[00:24:53] Speaker 01:
under the Stone Ward standard.

[00:24:56] Speaker 01:
Our contention is that she hasn't met that burden here because she hasn't pointed to any language in the Douglas Memorandum that would have affected her reply.

[00:25:08] Speaker 01:
And it hasn't pointed any way in which her reply would have been different if she had received the Douglas Memorandum.

[00:25:13] Speaker 03:
So you are saying that it depends on the content of what was in the evidence file.

[00:25:19] Speaker 03:
But if she didn't receive it,

[00:25:21] Speaker 03:
on her position, how does she know whether there's new and material evidence there?

[00:25:28] Speaker 01:
Well, she could have, to be clear, this assumes that the court overturns the factual finding of the board.

[00:25:37] Speaker 01:
In that case, she could have gone to the HR office and obtained the evidence if she wanted to.

[00:25:48] Speaker 01:
Now, there is evidence in the record showing that Ms.

[00:25:52] Speaker 01:
Hoffman, who is the HR employee that handled this, didn't respond to an email from Ms.

[00:25:59] Speaker 01:
Lair, but there's also no indication that Ms.

[00:26:02] Speaker 01:
Lair followed up on that email.

[00:26:05] Speaker 01:
So all this really, this renders the board's factual finding.

[00:26:14] Speaker 01:
This is further support for the board's factual finding in the sense that if Ms.

[00:26:19] Speaker 01:
Blair really hadn't received any of the evidence that was being relied upon for her removal, it's implausible that she wouldn't go and make further efforts to obtain it.

[00:26:32] Speaker 03:
She doesn't say any of the evidence.

[00:26:34] Speaker 03:
She says she didn't receive all of the evidence.

[00:26:37] Speaker 03:
She criticizes the date on which the Douglas Factor evidence consideration, all that shows in the record, as I recall, is that writing was entered into or signed after she was given the notice.

[00:27:00] Speaker 01:
That's correct, Your Honor.

[00:27:02] Speaker 01:
And Ms.

[00:27:04] Speaker 01:
Hoffman did address that discrepancy in her testimony, but that is Ms.

[00:27:10] Speaker 01:
Blair's argument.

[00:27:13] Speaker 01:
With respect to the Douglas Memorandum, my point was just that she knew of the existence of the Douglas Memorandum based on the notice that she did receive.

[00:27:25] Speaker 03:
But notice says there exists a Douglas Memorandum?

[00:27:29] Speaker 03:
I don't think so.

[00:27:31] Speaker 01:
So, Your Honor, this is on page 158 of the appendix and it notes that the notice supplied to Ms.

[00:27:49] Speaker 01:
Lair notes that the evidence file lists aggravating and mitigating factors including prior discipline the deciding official may take into account.

[00:27:56] Speaker 01:
And then it says, please see attachment Douglas Factors for factors that I have taken to account as proposing official.

[00:28:02] Speaker 01:
Now, there's a factual dispute about whether Ms.

[00:28:04] Speaker 01:
Lair received the attachment itself.

[00:28:07] Speaker 01:
But the notice did put her on notice that there was a Douglas Factors analysis that was done.

[00:28:17] Speaker 03:
All right.

[00:28:18] Speaker 03:
That's not attached in our appendix, right?

[00:28:20] Speaker 01:
Correct.

[00:28:21] Speaker 01:
Correct.

[00:28:21] Speaker 01:
Again, there is a factual dispute about whether she did receive the attachment.

[00:28:31] Speaker 01:
And the board concluded that she'd received all of the evidence in the evidence file, including the Douglas factors analysis.

[00:28:38] Speaker 01:
But Ms.

[00:28:38] Speaker 01:
Lair disputes that factual conclusion.

[00:28:44] Speaker 03:
Any more questions for Mr. Carhartt?

[00:28:47] Speaker 02:
No.

[00:28:47] Speaker 02:
No.

[00:28:48] Speaker 03:
All right.

[00:28:49] Speaker 03:
Thank you, Mr. Solomon.

[00:28:50] Speaker 03:
You have your rebuttal time.

[00:28:56] Speaker 00:
Thank you, Your Honor.

[00:28:57] Speaker 00:
So separately from the investigation that was called for by the director I was discussing earlier, Ms.

[00:29:02] Speaker 00:
Blair's whistleblower act of the actor is altered in a medical inspector's investigation that was internal to the agency but external to the medical center.

[00:29:10] Speaker 00:
And one of the things they pointed out was there's actually, regarding this behavior, it was brought up that we have years and years of the immaculate record in service.

[00:29:20] Speaker 00:
It was brought up that for all of these issues that the agency was identifying as her performing correctly, there were no procedures in place prior to the agency detailing this layer for these alleged efficiencies.

[00:29:37] Speaker 00:
So she was not previously on any sort of notice.

[00:29:40] Speaker 00:
The agency took no effort to educate Ms.

[00:29:43] Speaker 00:
Slayer or to put procedures in place and then hold Ms.

[00:29:49] Speaker 00:
Slayer to those procedures, but instead just detailed Ms.

[00:29:53] Speaker 00:
Slayer and then eventually terminated her without giving her an opportunity to

[00:29:59] Speaker 00:
correct those behaviors.

[00:30:01] Speaker 04:
Are you saying it wasn't clear to her that it was inappropriate for her, in her position, not being a physician, not being radiologist to actually change the reports?

[00:30:14] Speaker 00:
So that's actually a pretty nuanced analysis you would have to do and go through the actual... No, why is it nuanced?

[00:30:25] Speaker 04:
There's no debate about that.

[00:30:26] Speaker 04:
She changed the reports.

[00:30:28] Speaker 04:
on that doctor, right, that were submitted by that doctor?

[00:30:35] Speaker 00:
She made the minimist corrections and I don't believe there's any sort of other than the proposing and deciding official as well as obviously the administrative judge finding in their favor.

[00:30:47] Speaker 00:
There's no support in, you know, through the OMI that any of this was actually

[00:30:53] Speaker 00:
medically improper or anything like that.

[00:30:56] Speaker 04:
Well, her former supervisor and good friend conceded that it was improper.

[00:31:06] Speaker 00:
I would have to look at the specific concession as to, you know, there has been, my point is that there's been debate on that.

[00:31:18] Speaker 00:
So it's difficult for me to just say as a blanket statement that

[00:31:23] Speaker 00:
You know, this is clear and not clear obviously for the medical professionals, the Congress sought out to have a different process.

[00:31:33] Speaker 04:
Well, let me ask you this.

[00:31:34] Speaker 04:
There is no debate over whether she originally said she never made a change and then later conceded that that was an untrue statement.

[00:31:47] Speaker 00:
I think the point there though is that as far as when she was,

[00:31:53] Speaker 00:
accused of changing a medical record, what she had done, which was once again a correction where she wasn't actually giving any sort of medical input, she was just fixing, you know, the, you know, things as simple as the doctor putting, you know, the wrong name on something, she just corrected it, corrected the record.

[00:32:18] Speaker 04:
Putting a wrong name on a patient's file, that's pretty serious, right?

[00:32:24] Speaker 00:
Well, I mean, and that's why it was corrected.

[00:32:28] Speaker 00:
And this is something that has been done at this medical center by people other than this layer with no consequence is one of the issues that we have here.

[00:32:42] Speaker 00:
But for things where it's an unequivocal clear error,

[00:32:51] Speaker 00:
where it's just a clerical error by the physician.

[00:32:54] Speaker 04:
Well, she doesn't deny the lack of candor charge, correct?

[00:32:57] Speaker 00:
I mean, she denied that originally, you know, when posed with that question.

[00:33:05] Speaker 00:
Are you talking still specifically about this original denial of?

[00:33:14] Speaker 04:
Yeah, she said she never changed anything at all.

[00:33:17] Speaker 04:
And then she later went back and said, OK, maybe I did.

[00:33:21] Speaker 04:
but it was administrative, and then she conceded that there was a whole process for changing records and correcting records that she didn't follow.

[00:33:31] Speaker 00:
Yes, we absolutely concede that she did change the records for the administrative reasons.

[00:33:41] Speaker 00:
The dispute, though, in our position is that when the question was originally posed,

[00:33:49] Speaker 00:
The idea of changing records was something that was, you know, considered that was separate from what she was doing.

[00:33:55] Speaker 00:
As far as making those kind of de minimis administrative fixes, wouldn't, you know, she didn't consider that to be any sort of change in record.

[00:34:07] Speaker 00:
As far as whether the Douglas factors was new and material, from a case-specific standpoint, the deciding official specifically states that her decision was partially based on the aggravating factors considered by the proposing official.

[00:34:22] Speaker 00:
And had the deciding official failed to do any sort of weighing of the Douglas factors, this would not have been considering the efficiency of the service and the removal would have been reversed.

[00:34:33] Speaker 00:
And for that reason, it's quite clearly material, especially as

[00:34:38] Speaker 00:
Ward expands the Douglas Factor analysis or the question of new material specifically to the penalty analysis.

[00:34:47] Speaker 00:
And then finally, just as a side unrelated to my counter, the 714 switch was brought up earlier and the opposing council wasn't quite clear from the record.

[00:35:01] Speaker 00:
I just happen to know that that was based on the fact that despite this being prior to STAIRS versus Department of Veterans Affairs, OGC in this case took the position that it was problematically retroactive and that might interfere with sustaining removal under 714.

[00:35:21] Speaker 00:
So they switched it to Chapter 75 for retroactivity reasons.

[00:35:27] Speaker 03:
Okay.

[00:35:28] Speaker 03:
Thank you.

[00:35:28] Speaker 03:
Any more questions for Mr. Solomon?

[00:35:31] Speaker 04:
No, no.

[00:35:33] Speaker 03:
OK, thank you.

[00:35:35] Speaker 03:
Our thanks to both counsel.

[00:35:36] Speaker 03:
The case is taken under submission.