[00:00:00] Speaker 00:
We have five cases on the calendar this morning, one from the MSPB, two from the PTAB, one from the CIT, and one from an arbitrator, the latter being submitted on the briefs and not being orally argued.

[00:00:21] Speaker 00:
Our first case is David Rickle versus the Department of the Navy.

[00:00:27] Speaker 00:
2020-2147.

[00:00:28] Speaker 00:
Mr. Pinot, is it?

[00:00:31] Speaker 00:
Pinot, sorry?

[00:00:36] Speaker 00:
Pinot, yes.

[00:00:37] Speaker 00:
Please proceed.

[00:00:51] Speaker 01:
May it please the Court, members of the Court, good morning.

[00:00:54] Speaker 01:
My name is Don Pinnell.

[00:00:54] Speaker 01:
I represent David Rickle in this case.

[00:00:57] Speaker 01:
I recognize pragmatically that we're asking the court to make an adjustment to how car factor three is going to be implicated or considered in certain very limited circumstances.

[00:01:12] Speaker 01:
The agency would have you believe that we're proposing

[00:01:16] Speaker 01:
this gross change that affects everything to an incredibly difficult and unworkable standard.

[00:01:22] Speaker 01:
But it's really not the case.

[00:01:24] Speaker 01:
What we're proposing is that this change is important because it has a very minimal effect on the agency and a very substantial effect potentially on the employee.

[00:01:34] Speaker 01:
What we're saying here is that while normally Carb Factor 3 need not necessarily be applied in every situation,

[00:01:43] Speaker 01:
where you have a situation where every official involved in the removal is determined to have some motivation to retaliate against the employee, we're not just going to use factor one.

[00:01:57] Speaker 01:
There's got to be some affirmative discussion, some affirmative evidence as to factor three, even if that evidence is that there's no evidence.

[00:02:06] Speaker 02:
So, but that's what, I mean, are you then going to basically be requiring the agency to submit some kind of pro forma affidavit that said, we've reviewed the personnel files at this particular, you know, employee's location and we find no other person that has committed similar misconduct?

[00:02:25] Speaker 02:
Yes.

[00:02:26] Speaker 01:
I mean, why?

[00:02:26] Speaker 02:
I'll tell you why.

[00:02:28] Speaker 01:
Okay, go ahead.

[00:02:30] Speaker 01:
Here's the why.

[00:02:32] Speaker 01:
When the, when the,

[00:02:33] Speaker 01:
when the administrative judge is making a decision and is saying essentially that everybody has some type of motivation to do the wrong thing with regard to removing the employee

[00:02:44] Speaker 01:
It's really unrealistic to think that those same people don't have a motivation to not give up all the evidence.

[00:02:51] Speaker 01:
It's just not reality.

[00:02:52] Speaker 02:
Well, but this is, I mean, it's not full-blown litigation, but you get discovery at the board, you can have hearings, you can cross-examine these people, and the board can assess their credibility about whether they're being truthful or not, can't they?

[00:03:05] Speaker 01:
Of course the judge makes a decision.

[00:03:09] Speaker 01:
But it's very different as this court has recognized.

[00:03:12] Speaker 01:
The agency holds most of the cards.

[00:03:14] Speaker 02:
Yes, but you can have the discovery.

[00:03:17] Speaker 02:
You can get documents.

[00:03:19] Speaker 02:
You can get the administrator record.

[00:03:22] Speaker 02:
You can you can talk to these people here's my problem with it it seems to me that you are elevating the car factors into essentially a independent three-part statutory test when as I understand car all it is meant to be a non-exclusive list of factors

[00:03:39] Speaker 02:
to guide the AJs and the MSPB in making the ultimate statutory determination, which is would the agency have taken this action but for the protected disclosure?

[00:03:51] Speaker 02:
That's the statutory language or close to it, right?

[00:03:54] Speaker 02:
Understood and agree judge, but but that's and that's what the MSPB has to make as a factual determination agreed And so when we review these cases, we're reviewing whether there's substantial evidence for that factual Determination and you're asking us now to say well, they have to have independent factual

[00:04:13] Speaker 02:
evidence for each of the three car factors and I get it you're trying to limit it to a subset of cases but to me that doesn't matter whether you're trying to limit it or not is what's your authority for elevating the car factor into what is essentially going to be a statutory test that is not there that

[00:04:33] Speaker 02:
We have to find evidence to support each thing.

[00:04:35] Speaker 02:
That's just not what the statute requires, is it?

[00:04:38] Speaker 02:
It requires the agencies show that it would have taken this action even if this person had not made protective disclosures.

[00:04:46] Speaker 01:
Judge, I agree with the idea, but I respectfully disagree with your honest characterization of it.

[00:04:52] Speaker 01:
The car factors are helping reach that determination of whether or not that's in fact been the case.

[00:04:58] Speaker 02:
But those factors are not required by the statute, right?

[00:05:00] Speaker 01:
They are not required by the statute.

[00:05:01] Speaker 02:
We could have a completely different test.

[00:05:03] Speaker 02:
Absolutely, we could have no test at all and just say all that AJ has to do is make this statutory Determination that but for the protective disclosures these the same action would take it I agree, but if we're going to have a test shouldn't it shouldn't matter I mean don't isn't there a difference where why doesn't matter she has a reason to lie I

[00:05:24] Speaker 02:
I think that you're making a presumption.

[00:05:26] Speaker 02:
Why would we assume that every deciding official has to lie?

[00:05:30] Speaker 02:
I know it's a weak canon, but isn't there a canon that government employees are presumed to do their duties in good faith?

[00:05:39] Speaker 01:
Judge, of course they're presumed to do their duties in good faith.

[00:05:43] Speaker 01:
But at the same time, that doesn't change the reality of how life is.

[00:05:47] Speaker 01:
That's why in this particular case,

[00:05:49] Speaker 01:
you know obviously car factor one weight heavily in the a l j's decision here to say hey this rule was appropriate but the judge found that both of these individuals had some motivation to retaliate for the wrong reasons and of course your honor knows there was a lot that went on here with regard to either or both these individuals testify in person of course weiss testified right and did the administrative judge have a chance to assess their credibility

[00:06:13] Speaker 01:
The administrative judge believed the deciding official.

[00:06:21] Speaker 01:
He believes the deciding official in the light of no evidence.

[00:06:25] Speaker 01:
The lack of any evidence as to car factor three becomes a reason to discard the factor.

[00:06:31] Speaker 01:
Why?

[00:06:32] Speaker 01:
I'm, you tell me.

[00:06:33] Speaker 02:
No, no, I mean, why does it not matter?

[00:06:35] Speaker 02:
The deciding official got up there and said, I would have done this even with the whistleblowing disclosures.

[00:06:40] Speaker 01:
He did.

[00:06:41] Speaker 02:
And that's the ultimate statutory question that has to be answered.

[00:06:45] Speaker 02:
The administrative judge believed it.

[00:06:47] Speaker 02:
Why isn't that substantial evidence for the board's decision here?

[00:06:52] Speaker 01:
Judge, of course, that's substantial evidence.

[00:06:54] Speaker 01:
What I'm suggesting is that car factor three shouldn't matter.

[00:06:58] Speaker 01:
It should matter.

[00:06:59] Speaker 00:
Especially in a case where... Counsel, when someone is arguing for a change in the law, he's essentially admitting that the facts in the law are against him.

[00:07:10] Speaker 01:
You want us to... Part of that one's not good for us, Judge, I understand.

[00:07:12] Speaker 00:
You want us to overrule our Whitmore case?

[00:07:17] Speaker 01:
No, I think Whitmore supports our position.

[00:07:19] Speaker 00:
Whitmore held there's no obligation to prove each of the car factors.

[00:07:23] Speaker 01:
Correct.

[00:07:24] Speaker 01:
Correct.

[00:07:24] Speaker 01:
Whitmore held that there's no obligation to prove each of the car factors.

[00:07:27] Speaker 01:
But there hasn't been a case that dealt with this specific situation where we're going to have this unanimous circumstance where everybody's got a reason to not completely tell the truth.

[00:07:37] Speaker 01:
And, you know, pragmatically, when it comes to these applications of the car factors, as your honors know, in the vast majority of cases, all three are being presented anyway.

[00:07:46] Speaker 01:
It's not like it's this huge additional burden for somebody to say, hey, look, where there's some motivation to not tell the truth, then there's always a potential motivation to not present the evidence as to any kind of comparatives.

[00:07:58] Speaker 01:
And we should at least address it.

[00:07:59] Speaker 01:
If there's no evidence, just tell us that there's no evidence.

[00:08:01] Speaker 01:
I mean, make people...

[00:08:04] Speaker 01:
commit to that position in good faith, not just assume that it doesn't apply.

[00:08:09] Speaker 01:
I mean, here, you've got this 27-year employee.

[00:08:12] Speaker 02:
Can't you ask these people that during the hearing?

[00:08:15] Speaker 02:
Can't you ask them and say, are you aware of any other situations where people have committed this type of misconduct and not been penalized in the same way?

[00:08:25] Speaker 02:
other others to i don't see the question car car factor three i mean are there other people that committed the same type of misconduct that your client did and were not punished in the same way did you ask anybody that i didn't hear obviously i think that's not i don't know any of course i i

[00:08:43] Speaker 01:
If your honor's question is whether or not I would have maybe done everything the same way.

[00:08:46] Speaker 02:
Yeah, I probably wouldn't have done everything the same way judge I just don't understand because I think you already acknowledge right at the front that all that's going to happen is if we impose this requirement Which frankly I think we have to go on bonk to do so I doubt that that's going to happen But if we impose this requirement all the agencies are going to do is set some kind of pro forma Declaration that say we're not aware of any other person that's committed this particular type of misconduct and been punished less severely

[00:09:13] Speaker 02:
You can ask that same question and you can get at that same kind of information during discovery, during the hearings, and the like.

[00:09:21] Speaker 02:
I see little reason in enforcing what seems to be a bureaucratic, you know, requirement on the agency.

[00:09:29] Speaker 02:
Now let me ask you this.

[00:09:30] Speaker 02:
How far do you think the agencies have to search?

[00:09:33] Speaker 01:
That is obviously a very fair question, Josh.

[00:09:36] Speaker 01:
They can't be required to search forever, but I do think that when you're dealing with... I don't mean time-wise, I mean how extensively.

[00:09:43] Speaker 02:
Is it good enough for this single employing entity?

[00:09:46] Speaker 02:
So I don't know if he worked at a specific fire station or not.

[00:09:51] Speaker 02:
Is it good enough for one fire station?

[00:09:53] Speaker 02:
Is it good enough for all the fire stations in a region?

[00:09:56] Speaker 02:
Is it good for all the firefighters that work for the entire agency?

[00:09:59] Speaker 01:
Judge, since we're always talking about the particular deciding official, proposing official, obviously it shouldn't go beyond that.

[00:10:06] Speaker 02:
So it should just go to that deciding official, right?

[00:10:08] Speaker 01:
Of course.

[00:10:10] Speaker 02:
So ask him that at the hearing.

[00:10:12] Speaker 01:
Right?

[00:10:12] Speaker 02:
Judge, I understand the argument, but I... What's different than requiring that deciding official to supply an affidavit under oath and ask him the same question at oath at the hearing?

[00:10:25] Speaker 01:
I think that supplying that information in advance of it or making it part of their requirement necessarily brings

[00:10:34] Speaker 01:
more credibility to the process where you have somebody, multiple people, who have a reason to fire somebody for their wrongs.

[00:10:43] Speaker 01:
I'm running out of time, Judge.

[00:10:45] Speaker 00:
I got it.

[00:10:46] Speaker 00:
We will save it for you, Mr. Knoed.

[00:10:49] Speaker 01:
Thank you, Judge.

[00:10:50] Speaker 00:
Ms.

[00:10:50] Speaker 00:
Vicks.

[00:11:03] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:11:06] Speaker 03:
This Court should sustain the Board's decision affirming Mr. Rickles' removal for three reasons.

[00:11:10] Speaker 03:
First, the Board's treatment of comparator evidence under Car Factor 3 is in accordance with the case law, and particularly the Board's finding that there was no relevant comparator evidence is supported by substantial evidence.

[00:11:20] Speaker 02:
How do we know that there's no relevant comparator evidence?

[00:11:23] Speaker 02:
Did the agency actually supply any affirmative statement that there wasn't?

[00:11:29] Speaker 03:
The agency did not bring forward any evidence that there were, well, let me correct myself.

[00:11:38] Speaker 03:
Captain Weiss testified that he was unaware of any employee who had committed the same type of misconduct as Mr. Rickle, and that's at Appendix 289.

[00:11:47] Speaker 03:
And so that is affirmative evidence that there are no similarly situated employees who committed the same misconduct as Mr. Rickle.

[00:11:58] Speaker 03:
also provided some more generalized testimony regarding removals for failure to follow instructions, and he provided that on cross-examination.

[00:12:07] Speaker 00:
Whose burden was it to provide that evidence?

[00:12:10] Speaker 03:
It's the agency's burden, Your Honor.

[00:12:12] Speaker 00:
Sorry?

[00:12:12] Speaker 03:
It's the agency's burden, Your Honor.

[00:12:16] Speaker 02:
And the agency, if it doesn't provide ample evidence on or any evidence on CAR 3, risks being found

[00:12:26] Speaker 02:
to be, you know, have insufficiently shown its clear and convincing evidence.

[00:12:30] Speaker 02:
I think we've said that, right?

[00:12:32] Speaker 03:
Sure, Your Honor.

[00:12:33] Speaker 02:
And the agency... So it might be, even if we don't impose a requirement, that the agencies get in a better practice of providing exactly the kind of affidavit we were talking about, is that we've looked through our files and have determined that nobody's committed this kind of misconduct and been punished less severely.

[00:12:52] Speaker 03:
And this court has held that the agency is at its peril if it does not produce that type of evidence.

[00:12:58] Speaker 03:
And it still has also held that if there is no comparator evidence, there is no comparator evidence.

[00:13:04] Speaker 03:
And that factor simply falls out of the equation, as this court recently held in Redmond v. DBA.

[00:13:12] Speaker 03:
Now, this court has

[00:13:13] Speaker 03:
has held that if there is relevant comparator evidence, the agency is at its peril not to produce it.

[00:13:19] Speaker 03:
But that's different than if there is no comparator evidence at all.

[00:13:22] Speaker 02:
How would an employee go about getting this evidence if the agency failed to produce it?

[00:13:28] Speaker 03:
The employee has the opportunity during his MSPB appeal proceedings to request discovery, to request documents, to have a hearing at his request and to follow up with questions regarding specifics.

[00:13:44] Speaker 02:
So during discovery an employee can propound in and erogatories and document requests to say are there any other people that have been

[00:13:54] Speaker 02:
you know, proposed to be removed or disciplined for similar misconduct.

[00:13:59] Speaker 03:
Yes, the employee can propound document requests and interrogatories regarding whether any employees conducted similar misconduct or were subject to the same discipline.

[00:14:09] Speaker 02:
Do you know if that was done here?

[00:14:11] Speaker 03:
I do not know if the appellant here propounded such discovery requests.

[00:14:17] Speaker 02:
Yeah, I'm not sure we have the full record of all that before us.

[00:14:21] Speaker 02:
I didn't see it either.

[00:14:23] Speaker 03:
But as this court has discussed, it is the agency's burden and when there are no comparators, there are no comparators and the factor simply falls out of the analysis or becomes at most neutral.

[00:14:39] Speaker 03:
In this case, that is what the administrative judge found.

[00:14:41] Speaker 03:
He found that the evidence that Mr. Rickel had provided of removal of another whistleblower was not relevant because the,

[00:14:50] Speaker 03:
The relevant inquiry under car three is the treatment of a whistleblower versus a non whistleblower so evidence about removal of a whistleblower didn't wasn't relevant and he found that Mr. Rickles list of other employees who had.

[00:15:05] Speaker 03:
conducted different misconduct was also not relevant because the question under CAR is whether the employee was a non-whistleblower who was treated differently than the whistleblower for similar, not exactly the same, but similar misconduct.

[00:15:20] Speaker 03:
And so in this case, the administrative judge correctly found that there was no comparator evidence and he correctly found then that CAR factor three would not be part of the analysis and that it was neutral for the agency.

[00:15:38] Speaker 03:
I can turn now to the argument that this court should not impose a bright line rule.

[00:15:46] Speaker 03:
I'll address it briefly.

[00:15:50] Speaker 03:
This argument should be rejected.

[00:15:52] Speaker 03:
It is contrary to the court's case law and the long line of cases from Carr and Whitmore and congressional intent, and because it misunderstands the Carr factors.

[00:16:03] Speaker 03:
The court has never claimed that these are mandatory factors that must be met in order for the agency to meet its statutory burden under 5 USC 1221 E2.

[00:16:12] Speaker 03:
Instead, the court has discussed that the car factors guide the inquiry and are, quote, appropriate and pertinent considerations for determining whether the agency carries its burden.

[00:16:23] Speaker 03:
They are to be balanced against one another.

[00:16:25] Speaker 03:
In a recent case, Robinson, car factor one was found to be strong, car factor two was found to be

[00:16:33] Speaker 03:
And actually this court found that perhaps the AJ had not, had failed to even adequately account for some evidence of motive.

[00:16:44] Speaker 03:
And Car Factor 3 was also mixed.

[00:16:46] Speaker 03:
And on the strength of Car Factor 1, the AJ's opinion was upheld on substantial evidence.

[00:16:53] Speaker 03:
And in this case also, Car Factor 1, the agency,

[00:16:59] Speaker 03:
had strong reasons for its decision.

[00:17:03] Speaker 03:
As the appellant even concedes, he's not contesting that.

[00:17:07] Speaker 02:
Although there was... It's curious that he's not contesting at least some of this, because I understand that there's pretty good evidence that he couldn't be rehabilitated.

[00:17:16] Speaker 02:
But given his background and what he was accused of failing to do, the removal penalties seems a bit disproportionate.

[00:17:27] Speaker 02:
It seems like there could have been some intermediate steps, even if he ultimately would have been fired up trying, at least, to get his attention with lengthier suspensions and the like.

[00:17:37] Speaker 02:
But he didn't challenge any of that, right?

[00:17:40] Speaker 03:
He didn't challenge any of that and he concedes that the agency proved its removal by, that proved its removal and that there was a nexus between his removal and the efficiency of the service.

[00:17:51] Speaker 03:
And he also explicitly doesn't challenge car factor one.

[00:17:55] Speaker 03:
He also doesn't challenge car factor two, although he claims that it is a, it should be a factor in this court's establishment of a bright line rule for car factor three.

[00:18:09] Speaker 03:
But here, as in Robinson, balancing a strong case for removal against a weak motive to retaliate in general produced sufficient measure of proof in the mind of the trier of fact, the administrative judge who took credibility determinations, took evidence, and sorry, participated in listening to hearing testimony and considered the evidence.

[00:18:35] Speaker 03:
He balanced that and it was sufficient to form a firm belief that the agency had met its burden of proof.

[00:18:40] Speaker 03:
It's not this court's role to reweigh evidence and the administrative judge carefully and thoroughly set out the evidence and his reasoning for his decision.

[00:18:50] Speaker 03:
Under this court's standard of review, substantial evidence supports the board's determination that the agency met its burden of proof and the administrative judge's decision should be sustained.

[00:19:01] Speaker 03:
Unless the court has any further questions for me.

[00:19:07] Speaker 00:
As we've said before, no one loses points by not using up all their time.

[00:19:12] Speaker 00:
Thank you, Ms.

[00:19:13] Speaker 00:
Vicks.

[00:19:14] Speaker 00:
Thank you, Your Honor.

[00:19:15] Speaker 00:
Mr. Pinot has some rebuttal time.

[00:19:27] Speaker 01:
After 27 years of federal service,

[00:19:31] Speaker 01:
And every official involved in removal, having a motivation to retaliate against him that was improper, if the court upholds his firing, it does so with absolutely no knowledge of whether or not there is any comparator evidence whatsoever as to car factor three.

[00:19:52] Speaker 01:
There's none.

[00:19:53] Speaker 01:
The judge says, I don't have any.

[00:19:55] Speaker 01:
And of course, Your Honor, fairly asked questions about what discovery could have been done.

[00:20:01] Speaker 01:
maybe discovery could have been done.

[00:20:02] Speaker 01:
Should that really honestly be the employee's burden to get that answer on that comparative information by discovery when there's a clear and convincing standard on the agency to prove their case?

[00:20:16] Speaker 01:
So the appellant has to conduct discovery

[00:20:19] Speaker 01:
to find out if there's comparator employees, any comparator evidence, make sure it's not there, rather than the agency just saying, this is it or it's not it.

[00:20:29] Speaker 02:
That's exactly the type of evidence you're going to want for all other parts of the case, too.

[00:20:34] Speaker 02:
If you wanted to argue that this penalty was disproportionate to his misconduct, you would have said, have other employees committed similar types of misconduct, and how were they penalized?

[00:20:46] Speaker 02:
So it's not just on car factor.

[00:20:48] Speaker 02:
If you're do if you're affirmatively defending an employee that's been disciplined by the agency you're going to want evidence of comparative employees for a whole host of defenses most of which are your burden in this particular instance because of the way the whistleblower Protection Act was written

[00:21:06] Speaker 02:
It's the agency's burden.

[00:21:07] Speaker 02:
But in other instances where you're going to the Douglas Factors, I think, you know, if you're going to show that something was disproportionate or that, you know, they were treated differently than other employees outside the whistleblower conduct context, it's your burden, isn't it?

[00:21:20] Speaker 01:
Judge, I agree, but to be completely, to be completely frank, I think this happens in Orange's standard.

[00:21:25] Speaker 01:
Yes, the burden falls on us sometimes.

[00:21:27] Speaker 01:
But it's the same type of discovery.

[00:21:28] Speaker 02:
It's the same type of discovery and a lot of times these whistleblower cases are mixed case not not I'm using I'm not using the mixed case I'm barred but they are not just whistleblower actions they are challenges to the removal with a whistleblower defense so you're going to be getting that same type of information anyway Judge I just practically don't understand why you think what you're asking for is going to do anything because

[00:21:54] Speaker 02:
The agency is going to come forth with a pro forma declaration in every single one of these.

[00:21:59] Speaker 02:
And then if you just don't do any discovery, then you're stuck with that.

[00:22:05] Speaker 02:
If you do discovery, you may find out additional information which can further go to credibility, which you want to do anyway.

[00:22:11] Speaker 01:
Judge, perhaps you're right.

[00:22:12] Speaker 01:
And again, as the court knows, I didn't handle the case below.

[00:22:15] Speaker 01:
So perhaps I would have done things differently.

[00:22:18] Speaker 01:
But putting that aside, that doesn't change where the burdens here fall.

[00:22:22] Speaker 01:
I understand that this was a typical McDonald Douglas kind of situation.

[00:22:25] Speaker 01:
But there's no burden.

[00:22:26] Speaker 02:
I mean, you're talking about burdens, but we've never held that there's an independent burden to show each independent car factor and that the agency fails if it doesn't meet them separately.

[00:22:37] Speaker 02:
The burden is to show the ultimate factual question, which is they would have taken this action anyway, right?

[00:22:45] Speaker 01:
Judge, I agree, but I respectfully think that there's a difference where every

[00:22:51] Speaker 01:
It's not a typical situation where everybody involved in the removal has a reason to retaliate.

[00:22:57] Speaker 01:
I do think that makes a difference.

[00:22:59] Speaker 01:
I'm not suggesting a change in the rule for every single situation, but this specific situation, because I think it's important.

[00:23:04] Speaker 02:
Doesn't it make a factual difference that the agency, that AJ should be a little bit more suspicious of the testimony of these officials because they had a motive to retaliate?

[00:23:14] Speaker 02:
That's clearly covered by Car Factor 2, but they still get to look at these people and say, I heard them.

[00:23:19] Speaker 02:
I believe them.

[00:23:22] Speaker 01:
yes but again then you might as well just get rid of car factor three why have it if we're just going to agree that you know car factor one is good enough then your honors can make cases much cleaner just get rid of car well i think it's out there for the for the instances where somebody has been punished differently and when it's out there as as the court knows most times

[00:23:44] Speaker 01:
Most cases that come before this court, all three factors have been considered.

[00:23:48] Speaker 01:
This is an aberration in the way things typically go.

[00:23:50] Speaker 01:
It's an aberration that really has a lot of very different facts.

[00:23:55] Speaker 02:
Council points to the fact that... Do you have any suspicion or belief that people are out there in this case that did similar things?

[00:24:04] Speaker 02:
Yes.

[00:24:05] Speaker 02:
within one and i mean i know you didn't have to go after this person you're stuck with the facts of your case i understand that you know uh... again this is a single out of suspicion this is this is a single act it seems to me you're trying to save this case based upon some bad lawyer at the board and there were suspicions at the board that this guy was being singled out i'm trying to hold the agency to its burden in reality not just agency not just or found the agency medics for of the ultimate factual question i understand judge

[00:24:35] Speaker 01:
There's a whole lot missing here and I think it matters under these circumstances.

[00:24:39] Speaker 01:
Thank you very much.

[00:24:39] Speaker 00:
Thank you, counsel.

[00:24:40] Speaker 00:
The case is submitted.