[00:00:00] Speaker 04:
We have six cases on the calendar this morning from a variety of sources, one from the MSPB, one from the District Court, the Court of Veterans' Appeals, PTAB, and the Claims Court.

[00:00:22] Speaker 04:
Two from the Claims Court are submitted on the briefs and will not be argued.

[00:00:27] Speaker 04:
The first case is

[00:00:29] Speaker 04:
Manny Vannin versus Energy, 2020, 1804, Mr. Powell.

[00:00:35] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:48] Speaker 01:
My name is John Powell, counsel for petitioner, I accounting Manny Vannin.

[00:00:53] Speaker 01:
I'd like to reserve four minutes of my time.

[00:00:55] Speaker 04:
You don't need to wear your mask unless you wish to.

[00:00:59] Speaker 01:
Thank you, Your Honor.

[00:01:00] Speaker 01:
I take it off.

[00:01:02] Speaker 05:
I'm a little confused as to what relief you're asking for here.

[00:01:08] Speaker 05:
Your client voluntarily resigned from the agency, and you seem to be challenging some earlier transfers that happened.

[00:01:21] Speaker 05:
What exactly are you asking us to do here at the end of the day?

[00:01:25] Speaker 01:
Your Honor, we think the right relief would be some sort of corrective action.

[00:01:31] Speaker 01:
So under the statute, that could involve various possibilities.

[00:01:37] Speaker 01:
It could involve something like compensatory damages.

[00:01:41] Speaker 05:
But you're not challenging his resignation from the agency as involuntary, right?

[00:01:47] Speaker 01:
That's right, Your Honor.

[00:01:47] Speaker 01:
I think that the most likely relief here would be discipline of the parties involved would be appropriate corrective action.

[00:01:55] Speaker 01:
I mean, if the MSPB or this court finds that whistleblower retaliation has occurred, the statute provides that some compensatory action should be taken or some corrective action should be taken.

[00:02:13] Speaker 01:
So here we think that could involve the discipline addressing this within the agency so this doesn't happen again to someone else.

[00:02:23] Speaker 04:
I mean, you're here to discipline

[00:02:25] Speaker 04:
an agency employee?

[00:02:27] Speaker 04:
Excuse me?

[00:02:29] Speaker 04:
You want us to discipline the agency employee?

[00:02:33] Speaker 01:
Well, Your Honor, we actually would just like you to find that the administrative judge here failed to properly decide this case and send it back down for him for a case with proper discovery and a better weighing and imposition of the evidentiary burdens.

[00:02:51] Speaker 01:
And then if after that proceeding, the administrative judge finds that we have carried our burden and the agency has not, then it's really up to the administrative judge at that point to impose a corrective action that is appropriate.

[00:03:12] Speaker 03:
It's my understanding that... Do you have any authority for the proposition that a corrective action could be anything unrelated to the actual whistleblower, him or herself?

[00:03:23] Speaker 01:
No, I don't think so.

[00:03:25] Speaker 01:
That's what we're saying.

[00:03:26] Speaker 01:
I'm not sure I understand the question.

[00:03:30] Speaker 03:
Corrective action is normally viewed as something that pertains to the whistleblower.

[00:03:35] Speaker 03:
In other words, the whistleblower either gets the job that they wanted, or they get their promotion, or to the extent that they claim that they were improperly discharged, they get reinstated.

[00:03:48] Speaker 03:
But I have never seen a case where the corrective action didn't relate to some

[00:03:53] Speaker 03:
benefit directly to the employment-related benefit directly to the individual?

[00:03:58] Speaker 03:
And I'm asking if you have ever seen such a case.

[00:04:03] Speaker 01:
Your Honor, I do believe that such a case exists, but I can't name one for you right now.

[00:04:09] Speaker 01:
It's our understanding that under the statute, corrective action can involve discipline of the people who retaliated against the employee for whistleblowing.

[00:04:19] Speaker 01:
That's part of the statutory framework.

[00:04:22] Speaker 01:
I've certainly seen cases where that was part of the relief granted.

[00:04:28] Speaker 01:
I'm not sure if I've seen a case that that was the sole relief granted, but I don't know a reason that it couldn't be.

[00:04:34] Speaker 01:
I would say, though, I don't want to waive any potential other relief, compensatory relief, to Dr. Manneman.

[00:04:44] Speaker 01:
There are allegations in his OSC complaint that were

[00:04:49] Speaker 01:
advanced below that he suffered medical damages as a result of... Well, can the board award that kind of relief?

[00:05:00] Speaker 01:
I believe they can, Your Honor.

[00:05:01] Speaker 01:
I believe they can award compensatory relief for direct damages caused by whistleblower retaliation, things that satisfy statute.

[00:05:14] Speaker 05:
So damages flowing from

[00:05:16] Speaker 05:
the fact that he was stressed as a result of the discipline?

[00:05:20] Speaker 01:
Yes, Your Honor.

[00:05:20] Speaker 01:
At one point during this long saga, Dr. Manny Vanden was confronted with internal investigation on very short notice and fainted in the office.

[00:05:37] Speaker 05:
Yeah, but I didn't read your brief as suggesting that you were challenging the investigation as being the product of a protective disclosure.

[00:05:47] Speaker 01:
Well, Your Honor, we do allege that the initiation of the management-directed inquiry was an adverse action that

[00:05:58] Speaker 01:
was that these prior disclosures contributed to.

[00:06:01] Speaker 01:
But I agree with you that that's not the focus of our appeal.

[00:06:05] Speaker 01:
We think the main error is below in the decision currently before the court have to do really with the first and second disclosures and the transfers and hostile work environment that

[00:06:20] Speaker 01:
that flowed from those disclosures.

[00:06:23] Speaker 05:
So just to be clear, the protective disclosures that you're challenging on this appeal are the disclosure with respect to the funding issue.

[00:06:32] Speaker 05:
It's actually two disclosures.

[00:06:34] Speaker 05:
And the second one is the disclosure about the authorship issue.

[00:06:40] Speaker 01:
Yes, Your Honor, that's correct.

[00:06:41] Speaker 05:
Those are the only two, right?

[00:06:43] Speaker 01:
Those are the only two disclosures.

[00:06:45] Speaker 04:
How could a belief be reasonable that not being included as an author is an instance of gross mismanagement or a violation of law, even if he genuinely was a co-author?

[00:07:07] Speaker 01:
Thank you, Judge Lurie.

[00:07:08] Speaker 01:
I can explain that.

[00:07:10] Speaker 01:
So it can be.

[00:07:15] Speaker 01:
With respect to the authorship disclosure, Dr. Manny Van was alleging that he was improperly removed as an author of the paper of a scientific publication, which he co-authored.

[00:07:28] Speaker 01:
with other scientists, including a scientist named Dr. Wu at the University of West Virginia, who he had been working with for many years.

[00:07:34] Speaker 01:
The reason that that is significant in this context is that the laboratory here, the National Energy Technology Laboratory, which I'll refer to as NETL, it has a policy about authorship.

[00:07:47] Speaker 01:
And in Dr. Mandy Vanden's profession,

[00:07:50] Speaker 01:
the authorship of the paper is actually very significant, and the policy is very significant.

[00:07:55] Speaker 01:
And there's testimony, uncontroverted testimony, by the agency witnesses in this case, that they take that policy seriously.

[00:08:02] Speaker 01:
I would point to Dr. Gerdes' testimony that's cited in our brief.

[00:08:07] Speaker 01:
The reason it's so important is both because correct citation of authors and attribution of authors on scientific papers is both important for science to avoid

[00:08:19] Speaker 04:
things like gift authorship, but it's also important for... That's a judgment among scientists as to who contributed in a scientific sense.

[00:08:31] Speaker 01:
That's right, Your Honor.

[00:08:31] Speaker 04:
But that's not gross mismanagement.

[00:08:33] Speaker 01:
No, Your Honor.

[00:08:34] Speaker 01:
This would be a violation of a policy.

[00:08:35] Speaker 01:
So under the laws, we understand it.

[00:08:38] Speaker 01:
And there are cases that we could point you to.

[00:08:41] Speaker 01:
One of them is El Casir, and one of them is Drake.

[00:08:45] Speaker 01:
Those are two cases in which someone was alleging a violation

[00:08:49] Speaker 01:
an internal agency policy.

[00:08:51] Speaker 04:
The rule says it can be like- What's the policy that determines who should be an author on a scientific paper?

[00:08:59] Speaker 04:
Isn't that a scientific judgment?

[00:09:02] Speaker 01:
Well, yes, Your Honor.

[00:09:03] Speaker 01:
I think to some degree it is a scientific judgment.

[00:09:06] Speaker 01:
But what NEDL does is science.

[00:09:08] Speaker 01:
The main thing that employees at NEDL, like Dr. Minnie Bannon, are promoted or not promoted based on is the number of scientific publications they have published.

[00:09:19] Speaker 03:
But don't you have a problem, though, that Dr. Wu said that he wasn't entitled to authorship, and there's also a policy against gift authorship?

[00:09:29] Speaker 01:
Thank you, Judge O'Malley.

[00:09:31] Speaker 01:
We don't see that as a problem for us for at least two reasons.

[00:09:34] Speaker 01:
So the first reason is the question here is whether or not Dr. Manny Vanden had a reasonable belief or could have had a reasonable belief, whether someone in Dr. Manny Vanden's position could have had a reasonable belief that the authorship policy was violated.

[00:09:52] Speaker 01:
And we have testimony that says a violation of the authorship policy is a very serious matter.

[00:09:56] Speaker 01:
We don't have the authorship policy itself because the agency did not produce it.

[00:10:00] Speaker 01:
They produced emails that attached it, but they didn't produce the policy itself.

[00:10:04] Speaker 03:
So what's the retaliatory action that was taken against him based on that disclosure?

[00:10:10] Speaker 01:
Thank you.

[00:10:12] Speaker 01:
The retaliatory action based, the first retaliatory action based on the, it was a 2011 to early, I'm sorry, late 2010 or mid 2010 to early 2011 disclosure.

[00:10:24] Speaker 01:
And I can walk through how that process went.

[00:10:26] Speaker 01:
But it resulted in a meeting on March 8, 2011, in which Dr. Vanden, Dr. Mandy Vanden's supervisor, sort of exploded.

[00:10:36] Speaker 01:
You can look to Dr. Tucker's testimony in the record.

[00:10:39] Speaker 01:
He became extremely angry at Dr. Manny Bannon who was screaming at him.

[00:10:44] Speaker 01:
There's a declaration in the record of another scientist.

[00:10:51] Speaker 03:
Right, so that's your harassment?

[00:10:56] Speaker 01:
No, then weeks later, weeks after that, they caused him to be transferred to a different division.

[00:11:04] Speaker 01:
within Nettle.

[00:11:07] Speaker 01:
He was then placed under the supervision of Dr. David Allman, who is based in Oregon.

[00:11:15] Speaker 01:
So they transferred him to a different division.

[00:11:18] Speaker 05:
But the administrative judge found that your client requested the transfer.

[00:11:25] Speaker 01:
That's right, Your Honor, and frankly,

[00:11:29] Speaker 01:
We're challenging that finding because there is no evidence in the record to suggest that Dr. Manny Vanden requested that transfer.

[00:11:37] Speaker 01:
And on the contrary, there's a great deal of evidence in the record that Dr. Manny Vanden did not request that transfer.

[00:11:44] Speaker 05:
OK, but for a second, let's go back to what you were talking about before about why this is a protected disclosure.

[00:11:50] Speaker 05:
The administrative judge disbelieved your client when he said the authorship was improperly denied to me and that I was taken off the paper.

[00:12:02] Speaker 05:
What evidence do we have that would support a reasonable belief on your client's part that he had been improperly deprived of authorship other than his own testimony?

[00:12:15] Speaker 01:
Thank you, Your Honor.

[00:12:16] Speaker 01:
I would point you to the

[00:12:20] Speaker 01:
For example, an email from Kirk Gerdes to Dr. Wu talking about how Dr. Wu and Mandy Bannon had been working together for a long time on projects for the fuel cell team, which was

[00:12:35] Speaker 01:
the work that this paper came out of.

[00:12:36] Speaker 05:
And there's also authored papers on that subject that was given authorship credit.

[00:12:41] Speaker 05:
So the question is, what's the evidence with respect to this particular paper that would suggest that he had a reasonable belief that he was improperly denied authorship?

[00:12:52] Speaker 01:
Yes, sir.

[00:12:53] Speaker 01:
So there's also testimony in the record from agency witnesses, both Dr. Gerdes and Dr. Demmon, saying that they were aware that Dr. Manny-Vann had been working

[00:13:05] Speaker 01:
closely with Dr. Wu and his student who was primarily working on the paper in connection with this very same research.

[00:13:15] Speaker 01:
And I would also point out, Your Honor, that although I'm sensitive to the fact that the administrative judge made a credibility determination against my client, this court has also ruled many times that

[00:13:28] Speaker 01:
A credibility determination can't be used to ignore or disregard uncontroverted testimony.

[00:13:37] Speaker 05:
What's the uncontroverted testimony that he worked on this paper as opposed to this area, which led to multiple papers?

[00:13:47] Speaker 01:
Dr. Manny Vanden has uncontroverted testimony that

[00:13:50] Speaker 01:
And I'll explain why it's on contour in one moment, but that he was working with Dr. Wu on this paper.

[00:13:58] Speaker 01:
There's all kinds of other evidence that he was working with Dr. Wu at this time.

[00:14:04] Speaker 01:
And when we asked the agency witnesses, well, how did you know that Dr. Mandy Banner wasn't working with Dr. Wu at this time?

[00:14:14] Speaker 01:
They all said, well, we don't know.

[00:14:16] Speaker 01:
We don't know what he was doing.

[00:14:18] Speaker 01:
basis, the only thing that they point to is the Dr. Wu email.

[00:14:23] Speaker 01:
But there's two reasons that this court should not consider that email.

[00:14:27] Speaker 01:
The first is that the test here is, could Dr. Manny Vanden reasonably have believed that he should have been on this paper?

[00:14:34] Speaker 01:
And we're saying he's been working with Dr. Wu closely on this research.

[00:14:38] Speaker 01:
He says it's not controverted.

[00:14:40] Speaker 01:
And the Dr. Wu email comes after the disclosure.

[00:14:43] Speaker 01:
So there's no way that Dr. Manny Vanden could have known about that.

[00:14:46] Speaker 04:
He's probably wanted to save some rebuttal time.

[00:14:48] Speaker 04:
It's almost finished.

[00:14:52] Speaker 01:
Would you like to save it?

[00:14:53] Speaker 01:
I would, yes.

[00:14:53] Speaker 01:
Thank you very much.

[00:14:54] Speaker 01:
I appreciate it.

[00:14:55] Speaker 04:
Mr. Kefora.

[00:15:19] Speaker 02:
The key finding in this case is that the MSPB found that Dr. Manavanan was not a whistleblower.

[00:15:31] Speaker 02:
The two alleged protected disclosures that have been already discussed this morning, the board found, were not protected disclosures.

[00:15:41] Speaker 02:
And therefore, he did not meet his burden to prove by a preponderance of the evidence that he had made such disclosures.

[00:15:48] Speaker 03:
One of my concerns is with the way the board phrased things and the way that ALJ phrased things, and that is that he didn't

[00:16:00] Speaker 03:
have to be right that he was entitled to be an author, right?

[00:16:05] Speaker 02:
Yes, that's correct, Your Honor.

[00:16:07] Speaker 03:
He just had to have a reasonable belief that he was, and that therefore when his managers told Dr. Wu not to list him as an author, I mean, I know there's a debate over what Wu wanted.

[00:16:21] Speaker 03:
But when they were involved in that decision making, that he then could have had a reasonable belief that that was an abuse of their authority.

[00:16:30] Speaker 02:
Well, with respect, Your Honor, Dr. Wu was the deciding authority as to who was entitled to authorship credit.

[00:16:39] Speaker 02:
And the board made two findings or addressed two issues with regard to the allegations from Dr. Manavan.

[00:16:49] Speaker 02:
whether or not he was entitled to credit, and two, and this is really the key one, is that whether or not Dr. Gehman and Dr. Gerdes abused their authority by attempting to have him removed from the paper.

[00:17:08] Speaker 02:
The board found that there was substantial evidence in the record that they did not take that action.

[00:17:16] Speaker 02:
The emails that were previously discussed arose after there was a dispute over the authorship credit.

[00:17:24] Speaker 02:
And Dr. Gertz and Dr. Jemin inquired of Dr. Wu.

[00:17:28] Speaker 03:
But those emails came after the disclosure, right?

[00:17:33] Speaker 03:
How is it relevant if they're after the disclosure, as to his reasonable belief at the time of the disclosure?

[00:17:38] Speaker 02:
Yes, Your Honor, but there's no evidence in the record to support the contention that they took some action prior to the disclosure to have him removed from the paper.

[00:17:50] Speaker 05:
Well, other than his own testimony.

[00:17:52] Speaker 02:
That's correct, Your Honor, other than his own testimony which the administrative judge considered and made a credibility determination in light of the evidence in the record was not credible.

[00:18:04] Speaker 04:
What about the policy regarding authorship that was allegedly violated?

[00:18:12] Speaker 02:
Yes, Your Honor.

[00:18:13] Speaker 02:
So there is testimony in the record that the scientists at NEDL followed certain guidelines concerning authorship credit.

[00:18:24] Speaker 02:
But Dr. Manavanan has never established that there was an agency policy that carried the force of law concerning those guidelines.

[00:18:35] Speaker 05:
I thought other witnesses testified that there was such a policy.

[00:18:40] Speaker 02:
They testified, Your Honor, that there were guidelines, academic guidelines, that they followed.

[00:18:47] Speaker 02:
But in this case, the deciding individual as to whether or not Dr. Manavan was entitled to authorship credit was Dr. Wu.

[00:18:55] Speaker 05:
Different question.

[00:18:57] Speaker 05:
That's a question of whether he was entitled to authorship.

[00:19:00] Speaker 05:
The question that Judge Lurie was asking, and it seems to me to be pertinent, is whether a violation of the authorship guidelines

[00:19:08] Speaker 05:
could be a protected disclosure under the Civil Protection Act if you had a reasonable basis for believing that you were improperly denied authorship credits.

[00:19:20] Speaker 05:
Do you agree that a violation of agency guidelines

[00:19:32] Speaker 02:
I would agree that the agency witnesses testified that yes, they do follow those guidelines.

[00:19:39] Speaker 05:
I'm going to answer my question.

[00:19:40] Speaker 05:
Do you agree that a violation of those guidelines could be protected whistle-blown?

[00:19:46] Speaker 05:
A disclosure of violation of the guidelines could be protected whistle-blown?

[00:19:54] Speaker 02:
Yes, if the agency took that action, yes.

[00:19:58] Speaker 02:
Okay.

[00:20:00] Speaker 02:
Yes, to answer the court's question, yes, I would agree with that.

[00:20:04] Speaker 02:
However, the issue in this case, well, there's a couple issues with it.

[00:20:10] Speaker 02:
First of all, the question of whether or not Dr. Manavanan was entitled to authorship credit was a question for Dr. Wu, who is not an agency employee.

[00:20:22] Speaker 02:
The other allegation that he has brought forward was that Dr. Jemin and Dr. Hurd somehow abused their authority as agency employees to attempt to influence Dr. Wu to take his name off the paper.

[00:20:37] Speaker 02:
And there's no evidence in the record to support that.

[00:20:42] Speaker 03:
When I asked your friend on the other side what the personnel action was that he says flowed from that authorship dispute,

[00:20:51] Speaker 03:
He mentioned the two transfers, which there are separate issues I know that you would discuss with respect to those, but he also mentioned the March 11th heated conversation.

[00:21:00] Speaker 03:
Did you understand him to have actually alleged that that was a personnel action?

[00:21:06] Speaker 02:
No, Your Honor, we did not.

[00:21:09] Speaker 02:
There was an allegation, which I believe Dr. Manavan alleged that

[00:21:17] Speaker 02:
That conversation may have contributed to a hostile work environment, but the administrative judge addressed those allegations and found that

[00:21:30] Speaker 02:
while there was not a dispute that there was a heated conversation, that that conversation did not contribute to a hostile work environment.

[00:21:41] Speaker 02:
So in other words, the administrative judge found based on the evidence that there was no hostile work environment.

[00:21:51] Speaker 03:
Obviously, you need to be

[00:21:55] Speaker 03:
you need to stick to the record.

[00:21:57] Speaker 03:
But it seems a little odd that all of a sudden we go from someone who is very well respected and receiving not just good reviews but awards to all of a sudden they're in this kind of debate.

[00:22:11] Speaker 03:
Is there something else that I'm missing here or something in the record that I might have not scoured properly?

[00:22:19] Speaker 02:
Just to be clear as to what you're asking about, the debate about the authorship of the page?

[00:22:25] Speaker 03:
It seemed to be some kind of a turning point, and I guess I'm trying to figure out why.

[00:22:30] Speaker 02:
I mean, I can't speculate as to what the state of mind is to the various people involved is, but what the board found was that the one adverse action that took place in this case was the proposed removal, which was then followed by the voluntary resignation.

[00:22:57] Speaker 02:
that the turning point would have been the initiation of the investigation and the proposed approval.

[00:23:04] Speaker 02:
It happened a couple of years later, didn't it?

[00:23:06] Speaker 02:
It did, Your Honor.

[00:23:08] Speaker 05:
But I think Judge O'Malley's question is directed to why do we have this dispute about this authorship issue?

[00:23:17] Speaker 05:
He has 400 papers.

[00:23:19] Speaker 05:
He's a respected author.

[00:23:20] Speaker 05:
It just seems odd.

[00:23:23] Speaker 02:
I don't disagree, Your Honor.

[00:23:26] Speaker 02:
As was being discussed earlier, with regards to the authorship dispute,

[00:23:37] Speaker 02:
It's not in dispute that Dr. Manavan and Dr. Wu were working together at this time, but the allegation is that for some reason, which is not in the record, that Dr. Jemin and Dr. Gurds took some action to have him removed from this particular paper.

[00:23:57] Speaker 02:
And the board judge found that there wasn't any evidence to support that.

[00:24:02] Speaker 02:
So as to the genesis of that, I'm unaware.

[00:24:06] Speaker 04:
In other words, it's not disputed that he worked on the subject matter of the paper?

[00:24:17] Speaker 02:
As to the subject matter of the paper, it's not disputed that he was working with Dr. Wu in this general area.

[00:24:28] Speaker 02:
There is even evidence in the record that at the time there was a second paper that I believe was published

[00:24:37] Speaker 02:
contemporaneously, if not simultaneously, with Dr. Wu, that Dr. Manavan was a co-author on.

[00:24:45] Speaker 02:
In fact, the board judge made a reference to that it was possible that Dr. Manavan may have been mistaken as to which paper was at issue.

[00:24:57] Speaker 02:
But again, at the time, the issue came up.

[00:25:05] Speaker 02:
Dr. Girds and Dr. Jemin inquired of Dr. Wu as to whether or not Dr. Manavanen should be on the paper.

[00:25:12] Speaker 02:
Dr. Wu said that the authorship of the paper was correct, indicating that Dr. Manavanen should not be on the paper.

[00:25:24] Speaker 02:
Now, turning to the other

[00:25:30] Speaker 02:
the other alleged protected disclosure, this with regard to the funding for the battery project.

[00:25:37] Speaker 02:
The board concluded that Dr. Manavanan's complaints about the unspent funds were broad policy disputes and not protected disclosures.

[00:25:50] Speaker 02:
Specifically, there was

[00:25:53] Speaker 02:
The board found that there was substantial evidence in the record to support this finding, that it was not gross waste or mismanagement.

[00:26:01] Speaker 02:
First and foremost, the funds at issue were returned to the agency.

[00:26:06] Speaker 02:
They were not lost.

[00:26:08] Speaker 02:
There was a decision, the testimony in the record and the other record evidence establishes

[00:26:16] Speaker 02:
that the project in question was a three-year research project that was originally scheduled to terminate at the end of fiscal year 2014.

[00:26:25] Speaker 04:
Is it argued that the cancellation of the project meant that the money previously spent was wasted?

[00:26:36] Speaker 02:
Dr. Manavan appears to advance that argument, Your Honor.

[00:26:41] Speaker 02:
However, the board judge found there was substantial evidence in the record indicating that the money was not wasted.

[00:26:49] Speaker 02:
One of the other scientists involved with the project testified that all of the major experiments involved with the project had already been completed by the time it finished in 2014.

[00:27:04] Speaker 02:
The evidence and data from those experiments was already included.

[00:27:09] Speaker 02:
There was also discussion with regard to the equipment that had been purchased for the project, and there was testimony from the other scientists that that equipment could also be repurposed.

[00:27:22] Speaker 02:
so that there was no loss of equipment.

[00:27:29] Speaker 02:
What the board found was that there was no evidence in the record to support this concept that the failure to spend or I should say the reprogramming of the money at the end of the project had any impact on the project up to that point.

[00:27:50] Speaker 03:
Is it pertinent that his supervisor at that time was not a scientist, though, in making that assessment?

[00:27:58] Speaker 02:
I don't believe it is, Your Honor, because again, with the agency determination to reprogram the money addresses the question of loss as to its relationship to the previously spent funds.

[00:28:20] Speaker 02:
Dr. ManaVanen has not cogently explained why not spending the rest of that money would have had an impact on the earlier part of the project.

[00:28:36] Speaker 02:
It's a bold allegation with no support, whereas the board found that there was testimony in the record to support that the money was not wasted.

[00:28:46] Speaker 02:
Rather, it was a policy determination by the agency to reprogram it to other uses.

[00:29:00] Speaker 02:
So I just briefly would like to reiterate the point that, again, the board made the determination that because substantial evidence supported that neither of these two alleged disclosures were protected disclosures, that Dr. Manavanan had not carried his burden

[00:29:22] Speaker 02:
to establish that he had made the required disclosures under the WPA.

[00:29:30] Speaker 02:
And for that reason, as well as the other reasons articulated in our brief, we ask that this court affirm the finding of the MSVB.

[00:29:38] Speaker 02:
Thank you very much.

[00:29:39] Speaker 04:
Thank you, counsel.

[00:29:42] Speaker 04:
Mr. Powell will give you two minutes for a button.

[00:29:53] Speaker 01:
a few things, but just on the authorship dispute that I think may be helpful.

[00:29:59] Speaker 01:
Another piece of evidence for why Dr. Manny Vanden was reasonable or could have been reasonable in concluding that his name was taken off the paper is because, as the testimony from the agency witnesses on the record shows, there had become a dispute between Dr. Manny Vanden

[00:30:19] Speaker 01:
Dr. Gerdes, who was leading the fuel cell team in 2010, before this disclosure began, Dr. Gerdes testified that, and Dr. Gammon testified that Gerdes was frustrated because Mandy Vanden would work on more fuel cell research than Dr. Gerdes had testified.

[00:30:38] Speaker 01:
There's also testimony in the record that Dr. Gerdes led the fuel cell team, the fuel cell team

[00:30:45] Speaker 01:
was funding Wu's research, and therefore, Dr. Gergis had management control, some degree of management control, over Wu's funding.

[00:30:55] Speaker 01:
That's just another piece of the background of why we think this is, you know, there is evidence in the record for reasonableness there.

[00:31:03] Speaker 03:
The other thing I'd just like to emphasize... I just have two quick questions.

[00:31:06] Speaker 03:
The first protected disclosure, are you saying that the very first conversation that Dr. Manavan had with Jemin was

[00:31:15] Speaker 03:
a protected disclosure, or is it a later one after German supposedly took no action?

[00:31:21] Speaker 01:
Your Honor, I think that, looking at it under the law, I think that it was a protected disclosure, the first one, and then it clearly continued to be protected disclosures.

[00:31:30] Speaker 01:
He essentially talked to him in 2010, raised this issue, this angered Dr. Gerdes.

[00:31:37] Speaker 01:
And then he continued raising it with and got the union involved, leading up to a meeting with the union on March 7th, 2011, and then a meeting with Dr. Mandy Bannon and Dr. Tucker the next day on March 8th, 2011.

[00:31:49] Speaker 01:
And that's when there was sort of the explosion of anger.

[00:31:52] Speaker 01:
And shortly thereafter, Dr. Gemmins spoke with Dr. Allman in Oregon.

[00:31:58] Speaker 01:
caused Dr. Allman to request the transfer.

[00:32:01] Speaker 01:
And you can see that on the SF50 form, which, by the way, was not produced to us.

[00:32:05] Speaker 01:
It is clearly part of the record that should have been produced as part of the agency file.

[00:32:10] Speaker 01:
The only reason we have that document that shows who requested the transfer is because Dr. Manny Vanden, who was pro se for everything until right before the hearing in this case,

[00:32:20] Speaker 01:
He had to pursue FOIA requests and eventually got the SF50 form, which should have been included in the agency file.

[00:32:28] Speaker 03:
But are you disputing that Dr. Manavanan wanted the transfers?

[00:32:35] Speaker 01:
Yes, I think we do dispute that.

[00:32:36] Speaker 01:
He did not want the transfers.

[00:32:39] Speaker 01:
They told him he would be... He was happier under Dr. Alman, frankly, because

[00:32:43] Speaker 01:
And, you know, our brief kind of explains that he did very well with Dr. Allman.

[00:32:47] Speaker 01:
Dr. Allman wrote these wonderful things about the EERE program and Dr. Manny Van's review explaining how the EERE program showed amazing promise to have a potential breakthrough.

[00:32:56] Speaker 01:
This is in the agency files, which, again, this is something we didn't get from the agency.

[00:33:01] Speaker 01:
We had to get from FOIA.

[00:33:02] Speaker 04:
Thank you, counsel.

[00:33:03] Speaker 04:
Did you have another question, George?

[00:33:05] Speaker 04:
No, sorry.

[00:33:06] Speaker 04:
Sorry.

[00:33:06] Speaker 04:
Well, thank you, counsel.

[00:33:08] Speaker 01:
Thank you.

[00:33:08] Speaker 01:
Thank you very much.

[00:33:09] Speaker 04:
Thank both of you.

[00:33:09] Speaker 04:
And the case is submitted.