[00:00:07] Speaker 01: Our first case for argument this morning is 21-1460 Potter v. D.B.A. [00:00:16] Speaker 01: Is it Petrie? [00:00:17] Speaker 01: Petrie? [00:00:17] Speaker 01: What is it? [00:00:19] Speaker 01: How do I say your name? [00:00:20] Speaker 03: Petrie. [00:00:20] Speaker 01: Petrie. [00:00:20] Speaker 01: Please proceed. [00:00:22] Speaker 05: Good morning. [00:00:27] Speaker 05: You may have pleased the court. [00:00:29] Speaker 05: It is up to the petitioner's opinion that this appellate review comes down to a simple and straightforward question. [00:00:35] Speaker 05: Has this court ever held [00:00:36] Speaker 05: that a government agency has met the clear and convincing evidence standard in the Whistleblower retaliation case when relying on facts such as those presented in this case that amount to such a weak evidentiary showing. [00:00:48] Speaker 05: I believe it's extremely safe to say this court has not. [00:00:52] Speaker 05: I convey that confidence because I could not find one case that was analogous to the facts presented in this one where this court has held that the clear and convincing evidence burden was met. [00:01:02] Speaker 05: Presumably. [00:01:02] Speaker 00: Well, counsel, on that point, [00:01:06] Speaker 00: Part of the conclusion here, and I think in many of these cases, is the credibility determination by the administrative judge. [00:01:16] Speaker 00: So doesn't that go a long way towards getting to the clear and convincing in every case? [00:01:25] Speaker 00: Because do you agree that if what Mr. Dearing said [00:01:31] Speaker 00: was true, i.e. [00:01:33] Speaker 00: if the judge believed everything he said, that that would be insufficient. [00:01:40] Speaker 00: Is your argument that he wasn't being truthful, or is your argument that even taking his testimony as gospel, you still don't get there? [00:01:49] Speaker 05: Yes, Your Honor, because as Card v. Social Security Administration lays out, there are three factors that the court must consider. [00:01:56] Speaker 05: And the one factor is Card factor one, which is the strength of the agency's evidence. [00:02:01] Speaker 05: We believe that Dr. Dearing's testimony is only one piece of evidence. [00:02:05] Speaker 05: And we're not asking this court to reweigh the evidence or make a credibility determination. [00:02:12] Speaker 05: We're simply asking the court to assess if substantial evidence supports [00:02:18] Speaker 05: a finding that the government clearly and convincingly proved independent causation in this case. [00:02:23] Speaker 00: Can I ask you, and this is a factual question, and maybe I should know this, but it's Friday, so I forgot if I knew it at all. [00:02:31] Speaker 00: The vacancy announcement was posted for like three months. [00:02:35] Speaker 00: And not that you have the burden here. [00:02:37] Speaker 00: Clearly, the burden is on the government to establish. [00:02:39] Speaker 00: But is there anything in the record that demonstrates that Mr. Dearing [00:02:45] Speaker 00: that something happened with respect to the whistleblower's disclosures, some effect, something that occurred with that three months. [00:02:53] Speaker 00: Because the position was advertised. [00:02:56] Speaker 00: I think they kind of knew she'd apply. [00:02:59] Speaker 00: They probably had her in mind. [00:03:01] Speaker 00: And then so what about that? [00:03:03] Speaker 00: Is it a three-month period that it was posted before it was taken over? [00:03:06] Speaker 05: It was a four-month period. [00:03:07] Speaker 05: It was posted on August 10. [00:03:08] Speaker 00: OK. [00:03:08] Speaker 00: So did anything happen? [00:03:09] Speaker 00: Did Mr. Dearing become aware of anything during that period that he hadn't known before related to her disclosure and the impact of her disclosure? [00:03:17] Speaker 00: I recognize that's not the exact issue here. [00:03:20] Speaker 00: It's the agency's burden. [00:03:24] Speaker 02: I think wasn't it more like two and a half months? [00:03:28] Speaker 02: August to November 1st? [00:03:30] Speaker 05: He canceled it on November 1st, 2015. [00:03:40] Speaker 05: So yes, there were several incidents that occurred between the posting [00:03:44] Speaker 05: of the Chief Nurse War position and the cancellation. [00:03:48] Speaker 05: As you are aware, the Phoenix VA scandal began to become public. [00:03:53] Speaker 05: Dr. During had to testify before Congress in September of that year, I believe. [00:03:59] Speaker 05: There were other incidents in which [00:04:01] Speaker 05: VA management as a whole approached Ms. [00:04:04] Speaker 05: Potter about her disclosures, about whistleblowing in general, and stated that they wished that that information would remain in-house and not go outside of the VA prior to reporting it to management. [00:04:17] Speaker 05: I thought that happened before. [00:04:21] Speaker 05: There was incidents that occurred prior to the August 10th posting and then after the August 10th posting between that time and November. [00:04:30] Speaker 05: And then again in September, Ms. [00:04:33] Speaker 05: Potter informed Dr. Dearing that she would no longer be willing to [00:04:38] Speaker 05: act in the Chief Nurse for a position without an official detail. [00:04:42] Speaker 05: So that stopped the ability for the agency to allow her to do the work without actually giving her the title. [00:04:48] Speaker 05: And that what we believe actually sparked the November 1st email stating that he was not going to post the actual position or fulfill the position. [00:04:57] Speaker 01: And am I right in remembering from a factual standpoint that between the posting and the taking down a little later in August of 2015, Ms. [00:05:07] Speaker 01: Tatami testified that she informed Director Grippen about the fact that Ms. [00:05:14] Speaker 01: Potter had made an EEO complaint with all of the same information that was the subject of the whistleblower complaint? [00:05:22] Speaker 05: That's correct. [00:05:23] Speaker 01: So after the posting, [00:05:25] Speaker 01: The director of the agency, Mr. Dearing's boss, was informed about the Ms. [00:05:32] Speaker 01: Potter's complaint to EEO on the same subject matter as the whistleblower issues. [00:05:38] Speaker 05: Correct, but subject matter except the fact that the whistleblower retaliation dealt with the actual June and July incidents in regards to the care that was not being presented to the community. [00:05:54] Speaker 05: The EEO complaints had other factors that were separate and apart, but yes. [00:06:00] Speaker 05: Ms. [00:06:00] Speaker 05: Potter did inform the agency of all her whistleblower as well as her EEO activity during that time period. [00:06:06] Speaker 01: And that was... One follow-up question. [00:06:08] Speaker 01: Ms. [00:06:09] Speaker 01: Tatami informed Mr. Grippen about the EEO complaint, and didn't Mr. Deering testify that the entire selection process was actually a team for this position, which included himself and the director, Mr. Grippen? [00:06:22] Speaker 05: I believe he did testify to that, but Mr. Griffin testified that once he approved the position, he had no further activity to do with it. [00:06:30] Speaker 05: He said that once he had approved it, it was Dr. Dearing's prerogative on what he was going to do with that. [00:06:37] Speaker 00: What's the relief that's being sought here? [00:06:40] Speaker 05: Yes. [00:06:40] Speaker 05: So I'm very happy that you asked that question. [00:06:46] Speaker 05: So. [00:06:49] Speaker 05: If this court agrees that the DVA failed to meet the clear and convincing evidence burden, Deborah Vagnullio, the Department of Interior, is directly analogous to the question. [00:07:02] Speaker 05: This was also a whistleblower retaliation non-selection case, where the appellate applied for a position. [00:07:07] Speaker 05: However, it was filled with another applicant, and she alleged non-selection was due to her whistleblower disclosures. [00:07:13] Speaker 05: The board held that the government did not meet their clear and convincing evidence burden. [00:07:19] Speaker 05: Thus, appropriate corrective action included retroactive promotion with back pay, as well as awards of consequential damages, attorney fees, and costs, citing Harris v. Department of Agriculture, where the board stated, where a law requires a promotion or where facts establish a clear entitlement to a retroactive promotion, the appellant is entitled to the promotion retroactively. [00:07:43] Speaker 05: Then they also cited 5 USC, 1221. [00:07:46] Speaker 00: So let me ask you how that works as a practical matter. [00:07:48] Speaker 00: Obviously, she's been working since then, I hope, and probably been very successful because it seems that she's a really good nurse. [00:07:55] Speaker 00: So all of that offsets whatever it would have been. [00:08:01] Speaker 00: But then your view is that she might be entitled to monetary compensation if there was a difference between the amounts during that period. [00:08:10] Speaker 00: And then, does she want the job back? [00:08:12] Speaker 05: No, she would want the difference in back pay between the chief nurse for position until the period in time, because she has a duty to mitigate. [00:08:20] Speaker 05: So due to the period in time in which she began to make more in salary than the chief nurse would have paid, then obviously she wants attorney's fees and compensated compensatory damages. [00:08:31] Speaker 00: But she's not seeking the position? [00:08:33] Speaker 00: No. [00:08:34] Speaker ?: OK. [00:08:36] Speaker 05: So we believe that, again, that the evidence in the record establishes that there was a lack of substantial evidence in this case. [00:08:44] Speaker 05: We believe, I think we've spoken about car factor one and the reasoning that Dr. Dearing gave was weak. [00:08:55] Speaker 05: So let's discuss car factor two. [00:08:57] Speaker 05: The facts in this case are analogous to those in Whitmore, where the evidence reflects that VA management were closely following a petitioner's whistleblower disclosures and the effect they were having on compelling the Phoenix VA to remedy the problems disclosed. [00:09:11] Speaker 05: This court found when a whistleblower makes such highly critical accusations of the agency's conduct, an agency official merely being outside the whistleblower's chain of command, [00:09:20] Speaker 05: not directly involved in the alleged retaliatory actions and not personally named in the whistleblower disclosure is insufficient to remove the possibility of retaliatory motive or retaliatory influence on the whistleblower's treatment. [00:09:33] Speaker 05: However, there's a difference in this case. [00:09:35] Speaker 05: Dr. Smith was directly involved in the DVA's retaliatory actions by rushing the recruitment of the chief nurse position in 2017 after learning [00:09:45] Speaker 05: Ms. [00:09:45] Speaker 05: Potter's resignation. [00:09:47] Speaker 00: Time is running out. [00:09:53] Speaker 00: I'm clearly convincing evidence and I'm looking at the AJ's opinion here at 12 and 13 where he outlines Dr. Dearing's testimony. [00:10:03] Speaker 00: How would you characterize it? [00:10:05] Speaker 00: Is it your view that even if you believe everything he said, it's [00:10:15] Speaker 00: have any corroboration? [00:10:16] Speaker 00: He's just kind of saying this stuff, and the AJ is saying, well, I understand you don't remember a lot of details because it was a long time ago. [00:10:23] Speaker 00: What's your theory? [00:10:25] Speaker 05: Well, that was this court's theory in Miller, in Troy B. Miller v. Department of Justice. [00:10:29] Speaker 05: This court stated that they did not believe his name was. [00:10:36] Speaker 05: Mr. Miller's supervisor, they did not believe his testimony. [00:10:40] Speaker 05: They said, we believed his testimony. [00:10:42] Speaker 05: We're not questioning his credibility. [00:10:44] Speaker 05: We just believe that there wasn't enough. [00:10:46] Speaker 00: So that's your view. [00:10:47] Speaker 00: I asked you a mixed up question with 14 parts. [00:10:51] Speaker 05: Yes, our view is that there was not substantial evidence. [00:10:53] Speaker 05: When you take the car fact, when you take all the evidence in the aggregate, there is not substantial evidence to prove by clear and convincing evidence [00:11:00] Speaker 05: that the agency would have made the personnel action absent Ms. [00:11:04] Speaker 05: Potter's whistleblower disclosures. [00:11:06] Speaker 05: We believe that Dr. Derry's testimony is simply not enough, would not necessarily corroborating evidence, but when you look at the evidence in the aggregate, there's more than enough evidence that detracts [00:11:17] Speaker 00: Well, there could have been corroboration. [00:11:19] Speaker 00: I mean, if there had been corroboration, you'd be in trouble, right? [00:11:22] Speaker 00: If there were memos to the file written between him and the personnel people saying, this is a problem, we've got to pull this. [00:11:28] Speaker 00: But I don't think there's much documentation. [00:11:32] Speaker 05: There is no documentation. [00:11:33] Speaker 05: But the Corden Miller stated that corroboration wasn't absolutely necessary. [00:11:37] Speaker 02: Well, the email that I think Dr. Dearing sent around the time that the [00:11:44] Speaker 02: the position was pulled is supported, is it not, of his position? [00:11:50] Speaker 05: It's one piece of evidence. [00:11:52] Speaker 02: And then his testimony, you know... It's consistent with his position that it was the dispute over the organizational... Correct. [00:12:01] Speaker 05: However, there is much evidence in the record that detracts from that reasoning that we believe is even equal [00:12:08] Speaker 05: as important. [00:12:09] Speaker 05: And if there are no more questions at this time, I'd like to reserve the rest of my time for rebuttal. [00:12:15] Speaker 01: Yes, Mr. Petrie, no problem. [00:12:17] Speaker 01: Mr. Burr, we'll hear from you now. [00:12:34] Speaker 04: Good morning, Your Honor, and may it please the Court [00:12:36] Speaker 04: This court should affirm the decision of the MSPB because substantial evidence supports the conclusion of the administrative judge that the Dr. Deering of the VA would have canceled the Chief Nurse for vacancy in November 2015, regardless of Ms. [00:12:52] Speaker 04: Potter's July 2014 protective disclosure. [00:12:55] Speaker 04: Substantial evidence under Factor 1 of the Carr test, that being what the agency found to heavily weigh in the agency's favor, the reasons for the cancellation decision, is supported by substantial evidence. [00:13:08] Speaker 04: Dr. Deering sent a contemporaneous email in November 2015 directing HR to cancel the Chief Nurse for vacancy at that time and stating, as Judge Bryson mentioned a moment ago, [00:13:21] Speaker 04: the reasoning for that cancellation decision being needing to discern and confirm how that position was going to report within the agency and also restructuring within the agency was going on and that presented obstacles to filling the position at that time. [00:13:37] Speaker 00: Is there anything in the record that indicates that this [00:13:42] Speaker 00: That same situation seemed to have existed before they posted it. [00:13:48] Speaker 00: Is there anything that changed? [00:13:49] Speaker 00: I mean, the stuff about having to organize the bureaucracy and all this reorganization going on. [00:13:56] Speaker 00: That was in existence at the time they posted the position. [00:14:00] Speaker 00: Was there a change? [00:14:01] Speaker 00: You know, remember what the record said about that. [00:14:04] Speaker 04: Yes, Your Honor. [00:14:05] Speaker 04: The issue of reorganizing this administrative medicine service at the Phoenix VA had existed for a while, and it in part was furred by the patient access crisis. [00:14:15] Speaker 00: So that wouldn't have been a reason for withdrawing the vacancy announcement, because that existed before they posted it. [00:14:23] Speaker 04: And yes, Your Honor, that may be the case, but in the record in this case does establish that the problems, although they persisted, they existed before classification and approval of this vacancy, they persisted after and through the vacancy announcement being advertised. [00:14:41] Speaker 04: And Dr. Dearing testified to that at appendix 621 to 622. [00:14:46] Speaker 04: Additionally, there's consistent testimony in the record from Mr. Grippen, the medical center director at the time, saying that he was attempting to implement a new leadership structure that presented obstacles to [00:15:00] Speaker 04: fulfilling or filling this Chief Nurse for a vacancy. [00:15:03] Speaker 00: Additionally, you have to... Wouldn't that have existed in that same circuit? [00:15:08] Speaker 00: My question goes to, was there any change in circumstances between the time they posted it and the time that withdrew it regarding the reasons that they said they withdrew it? [00:15:20] Speaker 04: There was no change in the reasoning, Your Honor. [00:15:21] Speaker 00: So isn't that a problem? [00:15:23] Speaker 04: No, Your Honor. [00:15:24] Speaker 00: They just hadn't thought about it before, so they go ahead and put up the posting and then they think about it and they think about, oh, there were all these reasons we shouldn't do it, so they pull it down. [00:15:33] Speaker 00: Is that what happened? [00:15:34] Speaker 04: Well, Your Honor, there is evidence in the record establishing that the agency was attempting to fulfill, to fill this position because it was a critical position within the organization. [00:15:46] Speaker 04: and the agency thought it best to move forward with posting this position apparently, but in the end needed to pull it back because Dr. Deering in his email to HR and consistent testimony before the board said that they needed to have more time to [00:16:03] Speaker 04: to finalize their decision about who this was going to report to and how it was going to be organized. [00:16:08] Speaker 02: Well, as I understand it, I'm sorry, can I go ahead? [00:16:11] Speaker 02: As I understand it, Mr. Grippen testified that he had previously used the dyad structure in Milwaukee and he was in favor of using it in Phoenix. [00:16:22] Speaker 02: But correct me if I don't have his testimony exactly right, but the gist of his testimony seemed to me that there was pushback from the doctors. [00:16:31] Speaker 02: who didn't want the nurses not to be reporting to the doctors. [00:16:35] Speaker 02: And that was the gist of the problem. [00:16:36] Speaker 02: Is that a fair characterization? [00:16:39] Speaker 02: Well, go ahead. [00:16:41] Speaker 04: That is a fair characterization of Mr. Griffin's testimony that is consistent with Dr. Dearing's testimony about the concerns of organizing and determining who this position was going to be reporting to. [00:16:54] Speaker 04: Because as Judge Bryson mentioned, there was pushback on implementing this dyad model [00:17:00] Speaker 04: which would contemplate a co-equal nurse and doctor at the top of the organization chart. [00:17:05] Speaker 04: And as Your Honor mentioned, there were doctors, traditionally nurses report the doctors and they were attempting to make them co-equals in the case. [00:17:13] Speaker 02: And to follow up on Judge Prost's question, was there anything to indicate the timing of the pushback from the doctors? [00:17:22] Speaker 02: anything in Mr. Griffin's testimony in particular, because I don't recall. [00:17:26] Speaker 04: Your Honor, there's testimony indicating that the pushback was continuous, and it was going on around the time of the vacancy going through classification approval, through advertisement, and even through... Where does Dr. Dearing testify to that? [00:17:41] Speaker 01: Will you please draw my attention to it? [00:17:43] Speaker 04: Dr. Dearing testifies to the dyad model being controversial at 621 to 622 in the appendix. [00:17:52] Speaker 04: This is consistent with doctor. [00:17:54] Speaker 04: Sorry, your honor. [00:17:56] Speaker 04: Mr. Griffin testifies to this being controversial at appendix 520 to 521. [00:18:01] Speaker 01: Dr. Griffin testifies to it where? [00:18:04] Speaker 04: Mr. Griffin testifies to it at appendix. [00:18:06] Speaker 01: I'm sorry, I meant Dr. Dearing. [00:18:08] Speaker 01: Dr. Dearing is the selecting official. [00:18:09] Speaker 04: Correct. [00:18:10] Speaker 01: Where does Dr. Dearing testify to it? [00:18:12] Speaker 04: Dr. Dearing testifies to these problems persisting at 621 to 622 of the appendix. [00:18:25] Speaker 04: So the substantial evidence in the record about the reasoning for the cancellation is this contemporaneous email. [00:18:32] Speaker 04: Then we have the consistent corroborating testimony of Dr. Dearing having sought earnestly but unsuccessfully to obtain agreement on how this position was going to be structured and who it was going to report to. [00:18:44] Speaker 01: Well, aren't you a bit overstating what the ALJ found? [00:18:47] Speaker 01: I mean, didn't the ALJ actually find that Dr. Dearing's recollections were admittedly less than certain? [00:18:55] Speaker 04: No, you're right. [00:18:56] Speaker 04: The administrative judge did find that Dr. Dearing's testimony was admittedly less than certain as it may once have been. [00:19:06] Speaker 04: However, the administrative judge found the contemporaneous November 2015 email directing HR to cancel the vacancy to be consistent with his testimony. [00:19:15] Speaker 04: Additionally, Dr. Dearing's testimony was consistent both internally and when compared to the testimony. [00:19:22] Speaker 01: Mr. Griffin and you say it was internally consistent that doesn't seem Like my recollection of having read it. [00:19:31] Speaker 01: It didn't he expressed uncertainty at least at one point early in his testimony about why he pulled back the position in November [00:19:43] Speaker 04: Dr. Dearing expressed truthfully and just one testimony that he did not fully remember all of the circumstances around. [00:19:50] Speaker 04: Where did I find that in this record? [00:19:53] Speaker 04: That's actually, that is summarized in the A.J.'s. [00:19:57] Speaker 01: No, I want to know what page is the testimony. [00:20:16] Speaker 04: This is that Appendix 12 and 13 of the A.J.' [00:20:19] Speaker 04: 's opinion where he summarizes. [00:20:23] Speaker 01: Where is the testimony? [00:20:32] Speaker 04: Appendix 559 to 562. [00:20:49] Speaker 02: The email string that is referenced at the bottom of Appendix 621, do we have that entire string in the record? [00:20:59] Speaker 02: You know, okay. [00:21:06] Speaker 04: I'm sorry, Your Honor, which appendix? [00:21:07] Speaker 02: Right at the bottom of 621. [00:21:11] Speaker 02: Answer. [00:21:13] Speaker 02: It's in the email string, this is Dr. Gehring testifying. [00:21:16] Speaker 02: There was a discussion amongst leadership and nurse exec, director, et cetera. [00:21:22] Speaker 02: I'm just curious whether that is in the record. [00:21:28] Speaker 02: Or is it part of the email string that led to the November 1 email canceling the posting? [00:21:40] Speaker 02: Because that is in the record, but I'm wondering if this is a separate email string or part of the same. [00:21:46] Speaker 04: I believe this is part of the same email string that led Dr. Deering to email HR to direct the cancellation of the vacancy. [00:21:53] Speaker 02: Okay. [00:21:55] Speaker 02: And once again, just so I don't have to thumb through the appendix file, where is the email string in the appendix? [00:22:02] Speaker 02: I don't have it written down. [00:22:06] Speaker 04: The email canceling the vacancy is at appendix 806. [00:22:21] Speaker 02: string is not what I understood he was referring to because that was between November 1st and November 4th, and therefore was after the decision was made. [00:22:32] Speaker 02: And there is his email about saying we need to have more discussion about the best way to structure this service, whether the nurse for us should report, et cetera, et cetera, before we move toward a selection. [00:22:45] Speaker 02: What I'm asking, is there anything, any email string before November 1st that [00:22:51] Speaker 02: would be consistent with Dr. Deere's or inconsistent. [00:22:58] Speaker 02: I don't recall anybody citing it but he does make a reference for the email stream and I thought it might be in there. [00:23:13] Speaker 04: And I do not see an email in the appendix before that. [00:23:19] Speaker 01: Okay, can you turn to 559 please in the attendance? [00:23:25] Speaker 01: This is the questioning of Dr. Dearing. [00:23:34] Speaker 01: The question, do you recall what led you to cancel the recruitment, the non-selection? [00:23:39] Speaker 01: Answer, I don't recall what precipitated this. [00:23:42] Speaker 01: I just know that we had lots of discussions around as a leadership team about how this should be structured, how it [00:23:48] Speaker 01: should be ran as a service, whether we get approval from nurse for or not was in whoever approved that. [00:23:55] Speaker 01: So I don't remember specifically what caused us to pull it back. [00:23:58] Speaker 01: But I know that there we decided before we move forward, we need to have some discussion about the reporting. [00:24:06] Speaker 01: How is that clear and convincing evidence that it was pulled back for a reason not related to her disclosures? [00:24:15] Speaker 04: Well, Your Honor, this testimony is read in light of the November 2015 contemporaneous emails stating the same reasons around, concerns around restructuring and figuring out who it was going to report to, and there being consistent testimony as well from Dr. Venditti and Mr. Griffin. [00:24:33] Speaker 01: What November 15th emails are you talking about? [00:24:36] Speaker 04: The November 1st 2015 email, actually. [00:24:39] Speaker 01: Oh, just that one email pulling it back? [00:24:41] Speaker 04: Directing the cancellation, yes. [00:24:43] Speaker 01: Isn't the email that contains all this detail about the structure and the reporting correct? [00:24:51] Speaker 01: So what is the clear and convincing evidence? [00:24:54] Speaker 01: It's that email on page 806. [00:24:56] Speaker 04: and as well as the corroborating testimony of Dr. Dearing. [00:25:00] Speaker 01: Dr. Dearing who says I don't recall what precipitated this? [00:25:03] Speaker 02: You mean Mr. Griffin is what you said earlier? [00:25:07] Speaker 04: Dr. Dearing testified here about his recollection which admittedly the administrative judge found and weighed the testimony to find that it was admittedly less than certain. [00:25:16] Speaker 02: But I was confused. [00:25:17] Speaker 02: Were you saying that the corroborating evidence or some of it comes from Mr. [00:25:22] Speaker 02: Griffin or Dr. Deering. [00:25:25] Speaker 04: So corroborating evidence comes from Dr. Deering and additionally there's consistent corroborating evidence from Mr. Griffin and Dr. Venditti who was Ms. [00:25:35] Speaker 04: Potter's supervisor at the time. [00:25:36] Speaker 02: And what did Dr. Venditti say about this issue? [00:25:39] Speaker 04: Dr. Venditti testified that the agency in moving forward with a Chief Nurse for Vacancy announcement was attempting to recognize Ms. [00:25:52] Speaker 04: Potter in her work before the organization and it was a positive thing. [00:25:57] Speaker 04: But at the same time, Dr. Venditti recognized that there had been substantial pushback on implementing this position within the organization. [00:26:05] Speaker 04: And that is consistent with Dr. Deering's ultimate email in November 2015. [00:26:12] Speaker 02: Do you happen to have the pages where Dr. Venditti testifies to that effect? [00:26:16] Speaker 04: Dr. Venditti is testifying to this Appendix 422, as well as Appendix 452-53. [00:26:27] Speaker 04: Dr. Griffin is, or Mr. Griffin is also testifying to the controversial nature of implementing the dyad model at appendix 500 to 501 and appendix 520 to 521. [00:26:45] Speaker 01: Okay, on page 422, why don't you show me where Dr. Venditti is saying that we pulled it back because we weren't sure of the reporting requirement. [00:26:57] Speaker 04: Well, Dr. Venditti is not saying anything about them having pulled it back because testimony establishes that Dr. Venditti was not at the VA at the time, but rather her testimony is about [00:27:08] Speaker 04: what was going on at the organization with needing to determine who these positions were going to report to, restructuring all of these structures. [00:27:16] Speaker 01: Okay, where on page 422 does it talk about that? [00:27:20] Speaker 01: That's what you referred me to, 422. [00:27:21] Speaker 04: 422 to 423. [00:27:25] Speaker 04: Okay. [00:27:25] Speaker 04: This is talking about the change in the organization chart in December 2014, which had been to add lines [00:27:40] Speaker 04: Well, it's actually the whole page, 422 down to 423. [00:27:43] Speaker 01: Okay, so this is about the change in the organization chart. [00:27:47] Speaker 04: Attempting to get Ms. [00:27:49] Speaker 04: Potter recognition in light of the structural obstacles they had encountered to actually filling a Chief Nurse for vacancy within this organization, which is consistent with Dr. Dearing's reasoning for canceling. [00:28:01] Speaker 01: But all of this is about an organization chart in December of 2014. [00:28:05] Speaker 04: which happened after the protected disclosure in this case. [00:28:09] Speaker 01: But the job wasn't posted until August of 2015. [00:28:13] Speaker 01: This kind of goes back to what Judge Gross was asking you at the beginning. [00:28:17] Speaker 01: How in the world does this testimony about the organizational chart in 2014 support that they pulled back a job they posted in August of 2015? [00:28:28] Speaker 01: in November of 2015. [00:28:29] Speaker 04: This organization chart in December 2014, testimony establishes, was improving Ms. [00:28:37] Speaker 04: Potter's title within the organization to be a Chief Nurse Manager, which [00:28:42] Speaker 04: akin to a chief nurse for that is a chief nurse manager in colloquial terms. [00:28:47] Speaker 04: And that was therefore improving her position within the organization. [00:28:50] Speaker 02: That doesn't really have anything to do with the dispute, apparently, among the staff about who the chief nurse would report for the dyad structure, right? [00:29:04] Speaker 02: That's a different issue altogether. [00:29:06] Speaker 02: At least it seems distinct. [00:29:09] Speaker 04: That's an issue in the background, Your Honor, with the impediments to implementing this position in part has to do with who it was going to report to. [00:29:17] Speaker 04: That was undetermined at the time. [00:29:20] Speaker 04: But on the timing point here with December 2014 organizational chart improving her stature or position title was that that happened after the protected disclosure that is at issue at this point in the appeal and by by improving signing off on improving her title within the organization. [00:29:38] Speaker 04: That is antithetical to having a retaliatory motive toward Ms. [00:29:43] Speaker 01: Potter for having a name. [00:29:46] Speaker 01: The protective disclosure was the November 2014 email chain in which she disclosed the [00:29:58] Speaker 01: colossal incompetence in the handling of the urology and the psych patients and the concerns. [00:30:05] Speaker 04: That was July 2014, you're on. [00:30:07] Speaker 01: I'm sorry? [00:30:08] Speaker 04: That was July 2014. [00:30:09] Speaker 01: Right, okay, I got the date wrong, but thank you. [00:30:11] Speaker 01: That's what that disclosure was about, but then, I guess my biggest problem with the ALJ's opinion in this case is actually relevant to CAR factor two. [00:30:22] Speaker 01: The retaliatory motive, whether or not NP, [00:30:27] Speaker 01: He has analyzed whether the government had any retaliatory motive. [00:30:33] Speaker 01: And he concludes that Dearing had a slight motive to retaliate. [00:30:39] Speaker 01: And what bothers me is that what was introduced in front of him and discussed in detail [00:30:46] Speaker 01: is evidence that after her disclosure there then came this OIG investigation which became, as Mr. Dearing referred to it, a media circus that was a complete crisis [00:31:01] Speaker 01: the breadth of its impact, he said, could not be understated. [00:31:07] Speaker 01: That's what he said. [00:31:08] Speaker 01: It was of enormous proportion. [00:31:10] Speaker 01: He said he was receiving death threats, had to testify before Congress, who asked him how could he still have his job with all of these things going wrong. [00:31:21] Speaker 01: So what we have is a picture painted by Mr. Dearing himself of an absolute, complete and utter crisis [00:31:31] Speaker 01: as a direct result of the things that she reported in her November email to him, which were subsequently also reported and became part of the IG and OIG investigation, which just, there can be no dispute, it blew the whole place to bits. [00:31:47] Speaker 01: It really did. [00:31:48] Speaker 01: This Phoenix place, Vendetti was kicked out, Dearing was kicked out, eventually everyone in the leadership chain was removed as a direct result of the things that she reported. [00:32:00] Speaker 01: Not a single word of that is discussed in car factor two, which is supposed to be going to whether there was any evidence that this individual had any retaliatory motive. [00:32:14] Speaker 01: How is it possible? [00:32:16] Speaker 01: How can that not be discussed? [00:32:18] Speaker 01: Isn't this case at least a vacate and remand for the ALJ to discuss all of that? [00:32:24] Speaker 01: Because that evidence is overwhelming, and it's not mentioned [00:32:29] Speaker 01: in his opinion, even though a portion of the opinion is supposed to be go to, did Dearing or did he not have any motive to possibly want to retaliate in light of these disclosures? [00:32:40] Speaker 01: What do we do with the complete absence of discussion of all of that evidence? [00:32:45] Speaker 04: Well, Your Honor, in the AJ's 2018 decision, which this Court affirmed in early 2020, he does go into a substantial discussion of all of the different evidence that Ms. [00:32:57] Speaker 04: Potter contends now [00:32:59] Speaker 04: detracts from the reasoning for the cancellation decision. [00:33:04] Speaker 04: And he does dispose of that when he disposes of the, the administrative judge disposes of the claim for reprisal around the January 2017 unclassified duties reassignment. [00:33:19] Speaker 01: Yes, but that decision was reversed by us and sent back because he failed [00:33:24] Speaker 01: to understand that Dearing had notice of all of this. [00:33:27] Speaker 01: Remember, he said that Dearing wasn't even aware of it when, in fact, it was clear he was. [00:33:32] Speaker 01: So that opinion, we then said, no, a prima facie case has been established. [00:33:37] Speaker 01: That's what he found later, in light of going back and realizing there was timing and knowledge. [00:33:42] Speaker 01: So once you get beyond a prima facie case, now we're at, has the government established clear and convincing evidence [00:33:49] Speaker 01: And one of the factors that is required, there are only three, and factor number three is irrelevant. [00:33:55] Speaker 01: So there's only two factors here. [00:33:56] Speaker 01: And factor number two is, was there any retaliatory motive that could be ascribed to the actor? [00:34:04] Speaker 01: Why is none of that worth considering or discussing? [00:34:08] Speaker 01: Are you saying that evidence is all irrelevant, that the ALJ didn't consider it or shouldn't have considered it? [00:34:14] Speaker 04: A couple of points. [00:34:15] Speaker 04: First, this court's president establishes that the ALJ has reviewed the record, regardless of what is actually mentioned in the opinion. [00:34:23] Speaker 04: And additionally, the portion of the 2018 decision that this court reversed regarded only this November 2015 non-selection. [00:34:35] Speaker 04: The portion of that opinion regarding the January 2017 unclassified duties detail, wherein the administrative judge [00:34:43] Speaker 04: discussed all of these different pieces of evidence that Ms. [00:34:46] Speaker 04: Potter, in this part of the appeal, continues to allege to track from the reasons for cancellation, that portion of the AJ's decision was affirmed by this court as being supported by substantial evidence. [00:34:59] Speaker 01: I still don't understand. [00:35:00] Speaker 01: Unless I'm confused, [00:35:03] Speaker 01: The government has to prove by clear and convincing evidence that they would have taken this action regardless of her disclosure. [00:35:10] Speaker 01: Are you saying all the things that flowed from her disclosure, all the problems it caused for the selecting official himself, he described death threats, couldn't leave the house, crisis, and ultimately he was fired. [00:35:27] Speaker 01: You're saying all of the problems that she says flowed from her disclosure [00:35:34] Speaker 01: are not relevant to assessing whether he had a retaliatory motive? [00:35:38] Speaker 04: No, Your Honor. [00:35:39] Speaker 04: I'm not saying they're not relevant considerations. [00:35:41] Speaker 04: I am saying, though, the AJ has passed upon them, and this court has affirmed the consideration of that. [00:35:46] Speaker 01: Has passed upon them in what way? [00:35:48] Speaker 04: In the 2018 decision. [00:35:49] Speaker 01: In what context? [00:35:51] Speaker 04: In the context of the January 2017 unclassified duties detail, the administrative judge assessed the retaliatory motive with regard to each of those facts that came. [00:36:00] Speaker 00: And was that dearing that was the prime mover and shaker on that one? [00:36:04] Speaker 04: Your Honor, he was involved, but I do not believe he was. [00:36:08] Speaker 00: Don't you think that makes a difference? [00:36:09] Speaker 00: I mean, we remanded it because this key alleged retaliatory action, the AHA got completely wrong and didn't identify the individual who was responsible for that as being someone who knew about the disclosure. [00:36:26] Speaker 00: So knowing about this is a first, right? [00:36:29] Speaker 00: We didn't review that. [00:36:30] Speaker 00: We didn't have anything like that in the first case on which we could opine a review or which the AJ could opine about the retaliatory motive that Mr. Dearing would have had. [00:36:43] Speaker 00: since he found that Mr. Deering didn't even know about the disclosure. [00:36:47] Speaker 00: Maybe my recollection is foggy about our earlier opinion, but what am I missing? [00:36:53] Speaker 04: And here, Your Honor, going back to the decision that is currently before the court, the administrative judge analyzes the motive of Dr. Deering and assesses the testimony and the documentary evidence around that. [00:37:07] Speaker 00: and notes particularly that... You want to tell us what page you're looking at in the AJ's opinion then? [00:37:14] Speaker 00: His analysis of this factor at this moment. [00:37:23] Speaker 04: This is appendix, page 15 and on the 16 of the opinion. [00:37:28] Speaker 03: Okay. [00:37:33] Speaker 04: And there, he notes that there conceptually could have been a retaliatory motive on the part of Dr. Deering because the July 2014 disclosure, although it did not specifically name Dr. Deering or anybody for that matter, reflected poorly on his management and cost him to have to decide how to respond to that. [00:37:53] Speaker 04: However, the administrative judge found rightly that he was then required to assess any evidence in the record that... Okay, so time out. [00:38:01] Speaker 01: This is what the ALJ said. [00:38:03] Speaker 01: Dearing had ostensibly motive to retaliate for her disclosure because the problems she raised tended to reflect unfavorably on Dearing's management and put Dearing in the place of choosing between working to address her concerns or doing nothing and fearing further consequences. [00:38:20] Speaker 01: What he doesn't discuss is that after that time and before Dearing pulled back the selection that he knew she had applied for, [00:38:30] Speaker 01: He had to testify before Congress, had death threats, was asked how he could possibly be in his job given what they perceived to be his complete incompetence in the handling of the very things she reported. [00:38:43] Speaker 01: I feel like possibly that sounds like an important amount of stuff that might cause somebody to have retaliatory motive. [00:38:55] Speaker 01: I'm not saying Dearing did. [00:38:56] Speaker 01: I'm not saying he's a bad guy. [00:38:59] Speaker 01: But it was argued strongly before the ALJ, and not a word of it is mentioned in this opinion. [00:39:05] Speaker 01: Not a word. [00:39:06] Speaker 01: Not mentioned. [00:39:08] Speaker 01: Now, there's one thing to say. [00:39:09] Speaker 01: We have to presume the ALJ considered everything. [00:39:11] Speaker 01: But this stuff seems important, and it was argued, and it isn't mentioned. [00:39:16] Speaker 01: And I don't know how, if I'm supposed to, am I to review this determination about retaliatory motive [00:39:23] Speaker 01: for substantial evidence is that what I'm I assume it's gotta be a fat question. [00:39:28] Speaker 03: Yes. [00:39:28] Speaker 01: So I'm supposed to review it for substantial evidence. [00:39:31] Speaker 01: Am I supposed to look at it and say did the government prove this by clear and convincing evidence? [00:39:37] Speaker 04: You're supposed to decide whether the car factor two analysis is supported by substantial evidence as part of the balancing test for determining whether there's clear and convincing evidence. [00:39:47] Speaker 01: So how can I conclude that this car factor two analysis is supported by substantial evidence when it doesn't discuss the unbelievably overwhelming set of circumstances this man was subjected to [00:39:59] Speaker 01: by virtue of her disclosures. [00:40:02] Speaker 04: Your Honor, as we make clear in our brief, there's nothing tying Ms. [00:40:07] Speaker 04: Potter to any of the possible negative actions taken against Dr. Deering. [00:40:14] Speaker 04: For example, there's nothing tying Ms. [00:40:17] Speaker 04: Potter's disclosure to Dr. Deering being called to testify before Congress in September 2014. [00:40:23] Speaker 00: Were there other sources of information that led to this blow up and explosion at the Phoenix Center? [00:40:29] Speaker 04: Yes, Your Honor. [00:40:31] Speaker 04: The record makes clear that more employees at the Phoenix VA than not were disclosing activities and problems to the OIG. [00:40:42] Speaker 01: But Dr. Dearing also testified that he was certain this [00:40:46] Speaker 01: Potter would have talked to OIG because some of these things were in her area, like urology, and OIG was talking to everyone, right? [00:40:54] Speaker 01: Ms. [00:40:55] Speaker 04: Potter may have. [00:40:56] Speaker 01: Not may have. [00:40:57] Speaker 01: Mr. Dearing said that he was sure she had spoken to OIG because everyone had spoken to OIG. [00:41:03] Speaker 01: In fairness, if they were talking to so many people, he was sure that a lot of what they were investigating were right in the area of the things she had reported to him, so she would have been within the group. [00:41:14] Speaker 01: of people who OIG was speaking to, right? [00:41:17] Speaker 04: Correct, but it's then fairly [00:41:21] Speaker 04: I guess attenuated what her impact was on him being called to testify before Congress in September 2014. [00:41:29] Speaker 04: In any event, as the administrative judge recognized in 2018, and the record makes clear, Dr. Deering, even after that testimony before Congress where he talked about all of these negative consequences of what was going on at the Phoenix VA with the OIG investigations, he signed that December 2014 organization chart improving her position in the organization. [00:41:52] Speaker 01: He gave her a title, but no pay. [00:41:54] Speaker 04: He did not. [00:41:54] Speaker 04: The agency did not. [00:41:55] Speaker 01: Is that correct? [00:41:56] Speaker 01: He gave her a title, but no pay. [00:41:57] Speaker 04: Correct. [00:41:58] Speaker 04: However, Ms. [00:41:59] Speaker 04: Potter recognized him. [00:41:59] Speaker 04: Heck of an improvement. [00:42:01] Speaker 04: Ms. [00:42:01] Speaker 04: Potter recognizes in briefing before this court at Petitioners' Brief 25 that that was something that she preferred. [00:42:09] Speaker 04: Indeed, Ms. [00:42:10] Speaker 04: Potter made a whistleblower claim about a change back from that title before this court. [00:42:15] Speaker 00: Do you think, I asked your friend this on the other side, which is, [00:42:20] Speaker 00: They decided to advertise the position and then what we debated six weeks or two months or whatever later they pulled it. [00:42:28] Speaker 00: Is there anything in the record there that would indicate that there was more bad stuff happening to Mr. Deering that could be arguably attributable to something that the whistleblower had said and done? [00:42:42] Speaker 04: In between the time that the position was advertised and the position was pulled. [00:42:48] Speaker 02: Between August 10th and November 1st. [00:42:51] Speaker 04: Correct. [00:42:51] Speaker 04: So there there is a 622. [00:42:54] Speaker 01: It should help you as recollection. [00:43:09] Speaker 01: I think Mr. Deering testifies there that the OIG investigation was ongoing during that exact time and there was a lot of discussion about these whistleblower reports. [00:43:17] Speaker 01: I think that's actually a quote. [00:43:19] Speaker 01: a lot of discussion about the whistleblower reports. [00:43:23] Speaker 04: And he does testify that there was discussion about the whistleblower reports. [00:43:27] Speaker 04: However, the administrative judge in 2018 specifically weighed that testimony and found it to not have a lot of weight because it's in response to a leading question. [00:43:37] Speaker 04: And this court approved that in affirming that portion of the decision. [00:43:44] Speaker 04: Additionally... But do you understand? [00:43:48] Speaker 00: I guess what the chief has been referring to is this retaliatory motive, which spans less than a page in the AJ's report. [00:43:58] Speaker 00: And you keep talking about our 2018 opinion. [00:44:02] Speaker 00: But the reason for the remand entirely was because the AJ, when he reviewed this whole case in 2018, did not appreciate or understand that Mr. Deering even knew about the disclosure. [00:44:17] Speaker 00: Or am I misremembering? [00:44:18] Speaker 04: that Mr. Dearing, Dr. Dearing did not know about the July 2014 disclosure. [00:44:22] Speaker 00: So do you think that's something that's worth a talk, worth a look? [00:44:28] Speaker 00: I mean, if now part of the remand, understandably, they have to show an alternative basis with clear and convincing evidence. [00:44:36] Speaker 00: But as the Chief pointed out, one of the car factors is retaliatory motive. [00:44:42] Speaker 00: So wouldn't your expectation have been that he talked about, even concluding that it was minimal, de minimis, that he should have talked about what it was? [00:44:53] Speaker 00: Because the other report, our 2018 record couldn't have done that, because we found that he didn't know what we, the AJ concluded he didn't know about it. [00:45:02] Speaker 04: No, Your Honor, I do not believe the AJ was required to go through all of the different pieces of evidence that have no tie to [00:45:11] Speaker 04: no causal relation between anything that Ms. [00:45:13] Speaker 04: Potter did that is at issue at this point in the appeal. [00:45:17] Speaker 04: The only disclosure at issue at this point in the appeal is the July 2014 disclosure about delayed treatment for psychotherapy patients. [00:45:27] Speaker 04: OIG complaints, other EEO activity, none of that is the [00:45:36] Speaker 04: protected action at issue in this point in the appeal? [00:45:39] Speaker 02: It may not be the protected action, but isn't it relevant? [00:45:42] Speaker 02: Isn't everything that happened before November 1st, 2015, at least relevant? [00:45:52] Speaker 02: That is to say, if all sorts of consequences were ongoing, can't those be tied back to the original disclosure, at least plausibly? [00:46:05] Speaker 02: or possibly in terms of relevance of all that evidence. [00:46:13] Speaker 02: Never mind that those other things might not be precipitating actions for an independent whistleblower determination, but relevant to this one. [00:46:26] Speaker 04: Yes, in a broad sense they're relevant. [00:46:29] Speaker 04: They were all happening around the same time, but still there's nothing in the record tying these actions to Dr. Dearing and negative consequences that Dr. Dearing may have experienced. [00:46:47] Speaker 04: Just for the court's, you know, summer to conclude on the EEO point, I mean, the claim about there being discussions in September 2015 with Ms. [00:46:56] Speaker 04: Tottamy about EEO complaints, those were to Dr. or to Mr. Griffin. [00:47:02] Speaker 04: Those discussions were with Mr. Griffin and Mr. Griffin as counsel opposite recognizes is not the person who made the ultimate decision to cancel this vacancy. [00:47:13] Speaker 04: That person's motive is not at issue here. [00:47:16] Speaker 04: Dr. Deering's motive is that issue here and the record establishes that he did not have a retaliatory motive in doing so but rather he simply thought that the agency needed to restructure the service and figure out who this position was going to report to. [00:47:32] Speaker 00: Can I just get some clarification what you said? [00:47:34] Speaker 00: Take the EEO thing off the table because I think your friend on the other side also discouraged the weight and would give to that. [00:47:42] Speaker 00: But you don't think what she told the [00:47:46] Speaker 00: IG and what Mr. Deering knew or didn't know about what the discurred disclosures were to the IG has any bearing on this whistleblower issue? [00:47:56] Speaker 00: Do you think we're confined to that to just what happened the July 10th 14th? [00:48:03] Speaker 04: Yes, Your Honor. [00:48:04] Speaker 04: The remand order in 2020 was for the administrative judge to consider the impact of this July 10, 2014 protected disclosure, not OIG activity, not EEO activity, not any other protected activity. [00:48:19] Speaker 04: Rather, we are confined to that one disclosure on July 10, 2014. [00:48:23] Speaker 04: And then we're also confined on the personnel action to the November 2015 cancellation, which excludes a consideration of what happened in March 2017 [00:48:34] Speaker 04: when the agency then, after Dr. Deering had left the agency and had been gone for a while, sought to repost the vacancy. [00:48:42] Speaker 04: There's a mentioning of Dr. Smith in reposting the vacancy in March 2017 and that somehow being in reprisal for what Ms. [00:48:51] Speaker 04: Potter had done before. [00:48:53] Speaker 04: However, as the administrative judge recognized in 2018, and in a portion of the decision that this court affirmed, Ms. [00:49:01] Speaker 04: Potter did not adduce any evidence before the board that Dr. Smith, the person who was in charge of reposting in March 2017, had any knowledge of any of Ms. [00:49:11] Speaker 04: Potter's protected disclosures. [00:49:15] Speaker 01: OK, Mr. Bird, I think that we've kept you up here long enough. [00:49:19] Speaker 01: Why don't we hear from Mr. Peter, but I want to say Mr. Byrd, I very much appreciate your mastery of the record in this case. [00:49:26] Speaker 01: It was exceptional. [00:49:27] Speaker 04: Thank you. [00:49:28] Speaker 01: Mr. Petrie, please proceed. [00:49:31] Speaker 01: You have some rebuttal time. [00:49:33] Speaker 01: And because we let Mr. Byrd go just a tiny bit over, if you have to go a tiny bit over also, it's okay. [00:49:39] Speaker 04: Thank you, Your Honor. [00:49:43] Speaker 05: Thank you, Your Honor. [00:49:47] Speaker 05: Just to start, there is no evidence in the record that other than Ms. [00:49:53] Speaker 05: Potter's disclosures where any other employee provided disclosures to the OIG. [00:50:00] Speaker 00: But what do you have to say then about the last point we were discussing with your friend, which is that the remand was limited to the disclosure of July 14, 2014, if I got my date right. [00:50:13] Speaker 00: So that was not the IG stuff. [00:50:17] Speaker 00: And if you use that as the date, then it's fear, is it not, to look at what he did with respect to the organization chart and everything after that? [00:50:28] Speaker 05: Well, no, because the July 10th disclosure was the contributing factor that led to the burden shifting framework. [00:50:36] Speaker 05: And once the burden shifts to the government, then all evidence in the aggregate must be reviewed. [00:50:43] Speaker 05: So after July 10, 2014, then anything that occurs that's pertinent to the non-selection, which would be the 2017 recruitment, should be considered by the court. [00:50:57] Speaker 05: This court stated in Whitmore, [00:51:01] Speaker 05: that evidence only clearly and convincingly supports a conclusion when it does so in the aggregate, considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion. [00:51:15] Speaker 05: The DVA would like this court not to consider the 2017 rush recruitment of the chief nurse position. [00:51:22] Speaker 05: However, there is no precedent which states that the review of independent causation ceases after the personnel action is taken. [00:51:28] Speaker 00: Well, Dr. Deering was long gone by that time. [00:51:31] Speaker 00: And clearly, when your client moved to California, there was a real gap. [00:51:38] Speaker 00: I mean, nobody is disputing that she played a major role. [00:51:41] Speaker 00: They needed to fill a position. [00:51:42] Speaker 00: She was leaving right in 2017. [00:51:44] Speaker 00: So I'm not sure how much traction you get out of that 2017 piece of it. [00:51:51] Speaker 05: Well, here's the traction, Your Honor. [00:51:54] Speaker 05: So the agency would like to argue that [00:52:01] Speaker 05: But there were other factors, such as leadership turnover, that delayed in the hiring of the chief nurse for position from November 2015 to March 17. [00:52:09] Speaker 00: But we're only looking at Dr. Dearing. [00:52:10] Speaker 00: I'm sorry to interrupt you. [00:52:11] Speaker 00: But we're only looking at Dr. Dearing. [00:52:13] Speaker 00: That's the substance of the remand. [00:52:16] Speaker 05: He was long gone. [00:52:17] Speaker 05: But Whitmore Court determined that [00:52:22] Speaker 05: VA management as a whole should be determined when you're looking at car factor two. [00:52:28] Speaker 05: The Whitmore Court said, when a whistleblower makes such highly critical accusations of an agency's conduct, this court, an agency official merely being outside of that whistleblower's chain of command, not directly involved in alleged retaliatory actions, and not personally named in the whistleblower's disclosure, is insufficient to remove the possibility of retaliatory motive or retaliatory influence on the whistleblower's treatment. [00:52:52] Speaker 00: Yes, but our remand was limited to Dr. Dearing, was it not? [00:52:56] Speaker 05: No, Your Honor, your remand was limited to the July 10th disclosure, which [00:53:03] Speaker 05: shifted the burden to the government, which then brought the car factor into play. [00:53:08] Speaker 05: So now car factor two states that you must take into consideration VA management. [00:53:13] Speaker 05: Well, Whitmore states that you must take into consideration VA management as a whole. [00:53:19] Speaker 05: And in this case, VA management was Dr. Smith. [00:53:22] Speaker 05: And Dr. Smith was directly involved in the DBA's retaliatory action by rushing the re-recruitment of the chief nurse for physician. [00:53:29] Speaker 05: This also goes to Car Factor 1, and I will explain how it deflects or detracts from the agency's reasoning and the judge's decision on why Car Factor 1 strongly was in favor of the agency, if you allow me. [00:53:44] Speaker 05: When the chief nurse position was advertised on August 10, 2015, it was based on the reporting structure that had already been approved in two organizational charts approved by the agency. [00:53:56] Speaker 05: All upper management, including interim director Mr. Griffin and Chief of Staff Dr. Deering, improved both organizational charts and the initiation of the recruitment. [00:54:06] Speaker 05: Post March 19, 2015, all positions within Administrative Medicine Services followed the reporting structure of the two approved organizational charts. [00:54:18] Speaker 05: The organizational structure of administrative medicine services remained intact from the approved org chart on March 19, 2015 until August 2017 when it was changed to community managed care. [00:54:31] Speaker 05: According to the facts in the record, the chief nurse position that was advertised and re-recruited in March 2017 [00:54:38] Speaker 05: after the petitioner's resignation was done so under the same organizational structure Dr. Dearing had previously stated needed more discussion for the best way to structure the service. [00:54:51] Speaker 05: So as you can see, there was no change in structure of the service that led to the re-recruitment of the chief nurse position in 2017. [00:54:59] Speaker 02: Did they use the dyad structure? [00:55:01] Speaker 05: Absolutely. [00:55:01] Speaker 05: Yes. [00:55:02] Speaker 05: Yes, Judge, they did. [00:55:03] Speaker 05: The only change was that the petitioner would no longer be a candidate for the position because she had informed the DVA of her intent on resigning and impending transfer. [00:55:16] Speaker 05: So clearly, this is particularly important when considering the March 27 rush recruitment of the chief nurse position. [00:55:23] Speaker 05: Remember, this position was recruited the day [00:55:26] Speaker 05: the day they found out that she was resigning. [00:55:30] Speaker 05: They didn't wait a week, they didn't wait a month, they did it the same day. [00:55:35] Speaker 05: The DBA would like this court disregard those events because they occurred after the November 2015 cancellation. [00:55:42] Speaker 05: Like I said, however, there's no precedent which states the review of independent causation ceases after the personnel action is taken. [00:55:49] Speaker 05: In fact, it would be consistent in the finding in Whitmore, which I've already stated. [00:55:54] Speaker 05: Now let's talk about card factor three, because I think that this is something that the administrative judge and the DBA both [00:56:04] Speaker 05: Mr. Plot, it's very important to note that this court has never found that one factor was more important than any other factor. [00:56:13] Speaker 05: So simply relying on just one factor for which the AJ found way strongly in the favor, but which we forcefully dispute, doesn't automatically get them over the high burden of proof. [00:56:26] Speaker 05: They have to review all three factors. [00:56:28] Speaker 05: So when considering car factor three, [00:56:38] Speaker 05: The DBA conveniently points to the section of Whitman where this court states, CAR does not impose an affirmative burden on the agency to produce evidence with respect to each and every one of the three CAR factors, and that the absence of any evidence relating to CAR factor 3 can effectively remove it from the analysis. [00:56:57] Speaker 05: However, they fail to recognize the very next paragraph [00:57:01] Speaker 05: which is even more important, which states, to the extent such evidence exists, the agency is required to come forward with all reasonable pertinent evidence relating to car factor three. [00:57:13] Speaker 05: Failure to do so may be at the agency's peril. [00:57:16] Speaker 05: Stated differently, the absence of any evidence concerning car factor three may very well cause the agency to prove its case overall. [00:57:25] Speaker 05: As this court is aware, there were three other applicants for the November 2015 cancellation. [00:57:31] Speaker 05: Presumably, the DVA had the names and employment history of those applicants, meaning there was evidence to be presented on those applicants, more specifically their qualifications and potential whistleblower statuses. [00:57:44] Speaker 05: Thus, based on Whitmore, the DVA was required to present it. [00:57:47] Speaker 05: And by not doing so, that should have been to their peril. [00:57:50] Speaker 00: I'm a little confused by your emphasis on this CAR factor three. [00:57:56] Speaker 00: And the AJ says, neither party adduced any evidence as to those applicant's qualifications or status as whistleblowers or non-whistleblowers. [00:58:04] Speaker 00: So did you put in a request that had to do with evidence surrounding these individuals? [00:58:12] Speaker 00: If not, what are you saying the AJ should have done? [00:58:15] Speaker 00: In the absence of anybody putting forward any evidence, this should weigh against the agency? [00:58:20] Speaker 05: Absolutely, Your Honor. [00:58:21] Speaker 05: This is what was found in Whitmore and Miller, because it is the agency's burden of proof. [00:58:27] Speaker 05: Once the framework shifts to the agency, it is no longer the petitioner's or the appellant's burden of proof to put forward evidence. [00:58:35] Speaker 05: It is the agency's burden of proof to put forward evidence to the three car factors, not the petitioner. [00:58:42] Speaker 05: And the reason being Congress stated [00:58:44] Speaker 05: that the agency, the government, is in the position that has most of the cards. [00:58:49] Speaker 05: They're in control of the documents supporting the decision, the testimony of the witnesses. [00:58:54] Speaker 05: They're in control of who participated in the decision and the records that could document whether similarly personnel acts have been taken in other cases. [00:59:02] Speaker 01: Council, the problem with your argument is that what the agency found does benefit you, and here's why. [00:59:07] Speaker 01: The government has the burden of proving by clearing convincing evidence. [00:59:11] Speaker 01: So if the agency concludes no evidence on the third factor renders it neutral, that is to the government's disadvantage because they have the burden of proving by clear and convincing evidence. [00:59:22] Speaker 01: And if the evidence is ultimately in equipoise, they lose and you win. [00:59:26] Speaker 01: So the problem with your argument is that you don't want it to be found neutral, the absence of evidence. [00:59:32] Speaker 01: You want it to be found in your favor. [00:59:35] Speaker 01: I don't agree. [00:59:36] Speaker 01: It's already in your favor simply by virtue of being neutral because they have the burden. [00:59:43] Speaker 01: So I don't understand this argument. [00:59:45] Speaker 01: And we're pretty much out of time unless anybody has any other questions. [00:59:50] Speaker 01: If you want to respond, go ahead. [00:59:51] Speaker 01: But quickly, go ahead and respond. [00:59:54] Speaker 01: Yes. [00:59:54] Speaker 05: So the reason that I don't believe that the AJ was correct in his decision [00:59:59] Speaker 05: The concern of it being neutral is that the petitioner did testify about three similarly individuals within the Phoenix VA that the agency treated differently. [01:00:08] Speaker 05: They were similarly situated and were not whistleblowers. [01:00:12] Speaker 05: And she testified to those three individuals, Mr. Gregory Crenshaw, Ms. [01:00:16] Speaker 05: Lisa Lockridge, and Ms. [01:00:18] Speaker 05: Ann Wilford, who was the selectee for the chief nurse position. [01:00:21] Speaker 05: She testified to those individuals being similarly situated, and the agency put forward no evidence to rebut her testimony. [01:00:29] Speaker 05: Therefore, it can't be neutral because she presented- The court is neutral. [01:00:32] Speaker 01: The agency responded, or the AJ found, I don't remember which, that there is no evidence about the qualifications of those three persons or whether they were, in fact, whistleblowers or not. [01:00:40] Speaker 01: So it doesn't actually inform. [01:00:42] Speaker 01: You didn't put forth evidence of similarly situated people. [01:00:46] Speaker 01: You just put forth evidence of random people without the details to allow anyone to make a factual conclusion [01:00:51] Speaker 01: about whether they were similarly situated. [01:00:54] Speaker 05: Understood. [01:00:54] Speaker 05: Well, I will conclude with this. [01:01:00] Speaker 05: I ask this court to do the same as this court did in Miller, which is to find that the agency did not meet the clear and convincing evidence burden of proof, vacate the board's decision, which found the opposite, reverse and remand this case with a ruling in favor of the petitioner, including the termination of remedies consistent with that decided in back new deal. [01:01:18] Speaker 05: Thank you. [01:01:19] Speaker 01: Okay, I thank both counsel in this case who's taking under submission.