[00:00:00] Speaker 01:
Our next case for argument is 21-1751 Smolinski v. MSPB.

[00:00:13] Speaker 01:
Is it Rapp-Tully?

[00:00:16] Speaker 01:
Mrs. Rapp-Tully, please proceed.

[00:00:29] Speaker 02:
Good morning may please the court.

[00:00:31] Speaker 02:
My name is Stephanie rap tele and I represent petitioner dr. George Smolinski this time I'd like to reserve two minutes for a bottle Petitioners Dr. Smolinski respectfully requested this honorable report reversed the initial decision Finding that the board has jurisdiction over petitioners claim and remand the instant action for further processing

[00:00:53] Speaker 02:
The administrative judge erred in finding that the petitioner failed to make a non-frivolous allegation of protected disclosures and erred in dismissing petitioners' appeal for lack of jurisdiction.

[00:01:05] Speaker 02:
I know my predecessors have said this this morning, but this case actually is rather simple.

[00:01:10] Speaker 05:
There is... Do you agree that with respect to disclosures three and four that those were raised before OGC?

[00:01:20] Speaker 02:
With the Office of Special Counsel, you mean, Your Honor?

[00:01:22] Speaker 02:
No, we do not agree.

[00:01:24] Speaker 02:
The complaint that Dr. Smolinski submitted to the Office of Special Counsel is very clear on the disclosures and the acts of reprisal.

[00:01:34] Speaker 02:
The first complaint included the three acts of reprisal, and then the amendment included the last act of reprisal.

[00:01:43] Speaker 05:
Could you show me where these two were raised before the Office of Special Counsel?

[00:01:49] Speaker 02:
I'm sorry?

[00:01:49] Speaker 05:
Could you show me where these two were raised before the Office of Special Counsel?

[00:01:55] Speaker 02:
Sure.

[00:01:55] Speaker 02:
And the complaint itself, it states that, and if you turn to the page, its appendix page 58 and 59, it states specifically the first disclosure, which was the... No, I'm not talking about the first and second.

[00:02:12] Speaker 05:
We'll get to that.

[00:02:12] Speaker 05:
I'm talking about the third and fourth.

[00:02:15] Speaker 02:
Disclosures?

[00:02:16] Speaker 05:
Yes.

[00:02:19] Speaker 05:
Concerning the failure to consider those alleged disclosures to be protected disclosures.

[00:02:36] Speaker 02:
Your honor, if I'm understanding your question correctly, the OSC complaint itself is a disclosure.

[00:02:42] Speaker 05:
Yeah, but what the board said is that once you made a

[00:02:50] Speaker 05:
The allegation that in three and four is that the making of the complaint to the Office of Special Counsel itself was a protected disclosure and that there was retaliation against that.

[00:03:05] Speaker 05:
And what the HA said was that those issues, those two issues about the protected disclosure to the Office of Special Counsel were not themselves raised with the Office of Special Counsel.

[00:03:19] Speaker 05:
That's what I understand.

[00:03:22] Speaker 02:
I believe I'm understanding your question that by making the complaint that Dr. Smolinski in making the complaint did not say in making the complaint there was an act of reprisal related.

[00:03:38] Speaker 05:
But he says that things happen later on.

[00:03:40] Speaker 05:
As a result of the disclosures that were made to the Office of Special Counsel, right?

[00:03:44] Speaker 05:
And what the A.J.

[00:03:46] Speaker 05:
said is that those actions that were taken later on were not raised as retaliatory with respect to protective disclosures before the Office of Special Counsel.

[00:03:59] Speaker 05:
In other words, the theory is you had to go back again

[00:04:01] Speaker 05:
to the Office of Special Counsel and say the disclosures that I made to the Office of Special Counsel itself were protected and here was retaliation as a result of those two disclosures.

[00:04:14] Speaker 05:
And in fact, you did not go back to the Office of Special Counsel and make that point, right?

[00:04:19] Speaker 05:
Well, the amended complaint was filed after... Okay, but so show me where that amended complaint makes this point.

[00:04:28] Speaker 02:
So in the amended complaint, well, explicitly as you're stating, I would say it's not written as you're stating.

[00:04:35] Speaker 02:
However, in the amended complaint, it does follow the timeline.

[00:04:39] Speaker 02:
And it follows that after the OSC complaint was filed, the agency then took additional actions in reprisal for those disclosures, but also the disclosures that had predated the AR-186.

[00:04:56] Speaker 05:
Just show me where the amended complaint says that.

[00:05:00] Speaker 02:
So if you look on page 64 and 65, the bolded text are the added acts of reprisal.

[00:05:11] Speaker 02:
And it's following the timeline of this case.

[00:05:15] Speaker 02:
The entirety of the continuation sheet is written as a timeline of actions.

[00:05:20] Speaker 02:
And the bolded claims.

[00:05:21] Speaker 05:
OK, but what I don't see is a statement that as a result of the complaints that I made to the Office of Special Counsel, I was retaliated against.

[00:05:30] Speaker 02:
I would agree that sentence is not in there.

[00:05:33] Speaker 02:
Your Honor, respectfully, I believe it's kind of obvious that if you submit an amended complaint that includes new instances after you file a complaint, then

[00:05:44] Speaker 02:
You are amending your complaint to say, and there are further acts of reprisal.

[00:05:50] Speaker 02:
Additionally, the complaint does say, and still ongoing.

[00:05:54] Speaker 05:
But not as a result of the complaints to the Office of Special Counsel.

[00:05:58] Speaker 05:
That's the problem.

[00:05:59] Speaker 05:
But I don't want to take up too much time with this issue.

[00:06:05] Speaker 02:
I understand your argument, Your Honor.

[00:06:08] Speaker 02:
However, I believe that the disclosures in this case

[00:06:12] Speaker 02:
and the acts of reprisal are still properly before the board because of the point that the Merit Systems Protection Board concedes, which is that the two initial disclosures were included in the AR-15, 15-6 investigation.

[00:06:29] Speaker 02:
When Dr. Smolinski gave that statement, the AR-15, as part of the investigation, he disclosed the first disclosure, which is the incident at the hospital, and he talked about the holiday ball incident.

[00:06:42] Speaker 02:
And then after his participation in that disclosure, or in that investigation, then the acts of reprisal followed.

[00:06:54] Speaker 02:
And that's what allows the case to be properly before the Maryland Citizens Protection Board.

[00:07:00] Speaker 02:
I'd also like to go to the point of what was discussed at the Office of Special Counsel, because the record is

[00:07:07] Speaker 02:
Well, it's very limited.

[00:07:09] Speaker 02:
And that is because of the nature of these cases.

[00:07:12] Speaker 02:
When you go to the Office of Special Counsel, all you submit is your complaint.

[00:07:17] Speaker 02:
And then the attorney at the Office of Special Counsel who's assigned to your case calls you, and they do a telephone interview.

[00:07:23] Speaker 02:
But unlike other cases, maybe at the EEOC, where the agency then investigates and produces affidavits, produce documents, produces a report of investigation, Office of Special Counsel does not do that.

[00:07:35] Speaker 02:
All they produce

[00:07:37] Speaker 02:
A closure letter if they are closing the case so the discussions the issues raised to the attorney as part of the office of special counsels Investigation are never before in a record of any sort so

[00:07:53] Speaker 02:
That is essentially problematic for the administrative judge's decision, because you don't have a lot of time.

[00:07:59] Speaker 01:
Could I get you to focus on the 2302 claims?

[00:08:03] Speaker 01:
The government, as I understand from their brief, admits that a limited remand is necessary in this case, because the board failed to specifically address the 2302 B9C claim.

[00:08:16] Speaker 01:
Is that correct?

[00:08:16] Speaker 02:
Yes, Your Honor.

[00:08:17] Speaker 01:
And you're arguing also that we should remand under

[00:08:23] Speaker 01:
The same provision because AR 15-6 and his testimony in that investigation constitutes a protected disclosure on its own.

[00:08:33] Speaker 01:
Is that correct?

[00:08:34] Speaker 02:
That's correct, Your Honor.

[00:08:35] Speaker 02:
23-02-B-8 is a protected disclosure.

[00:08:41] Speaker 02:
It's any disclosure of information.

[00:08:43] Speaker 02:
by an employee that he or she reasonably believes evidences a violation of any law, rule, regulation.

[00:08:48] Speaker 01:
So you say the board got the B-8 decision wrong and simply missed the B-9 altogether?

[00:08:53] Speaker 01:
That's correct, Your Honor.

[00:08:54] Speaker 01:
OK.

[00:08:55] Speaker 01:
And so tell me more about why you think they got the B-8 wrong.

[00:09:02] Speaker 02:
The administrative judge completely.

[00:09:06] Speaker 01:
Is it your argument?

[00:09:08] Speaker 01:
that what occurred at that ball that was testified to, or the holiday party, amounted to an abuse of authority, or did it amount to a violation of rule, regulation, or other?

[00:09:20] Speaker 01:
It seems to kind of allow for both, right?

[00:09:23] Speaker 02:
It does allow for both.

[00:09:24] Speaker 02:
And it is an abuse of authority.

[00:09:27] Speaker 02:
The universe that these actions took place are not just in normal civilian life.

[00:09:32] Speaker 02:
This was also in military life.

[00:09:34] Speaker 02:
In the military there is an additional code criminal code and other code on civilian on military personnel and that is the UCMJ and An abusive authority is not only what we describe it as here But it is also potentially could be a criminal action if they a senior ranking officer is

[00:09:54] Speaker 02:
does something that is in violation of the UCMJ, then potentially that is a violation of the UCMJ.

[00:10:00] Speaker 04:
Just to refresh my memory, the holiday ball was, it was work-related, correct?

[00:10:06] Speaker 04:
I mean, it was a military.

[00:10:08] Speaker 02:
Correct.

[00:10:09] Speaker 04:
And Mrs. Smolinski, her statement said that she felt

[00:10:16] Speaker 04:
that she would have been assaulted.

[00:10:18] Speaker 04:
The action would have made her feel as she'd been assaulted had nobody else been there, right?

[00:10:23] Speaker 04:
That's correct.

[00:10:26] Speaker 04:
Was the behavior sexual in nature?

[00:10:30] Speaker 02:
Ms.

[00:10:31] Speaker 02:
Malinsky believed it was based on her statement.

[00:10:34] Speaker 02:
The account of those statements is that Colonel Hudson came up very close behind her and was whispering in her ear.

[00:10:42] Speaker 02:
And as Your Honor pointed out, this was a party.

[00:10:44] Speaker 02:
There was loud music playing.

[00:10:45] Speaker 02:
And he was so close that he was whispering.

[00:10:49] Speaker 01:
And she also testified he had his hand on the small of her back as well.

[00:10:52] Speaker 01:
Is that correct?

[00:10:53] Speaker 01:
Or that's alleged.

[00:10:56] Speaker 02:
I believe it's actually in her statement.

[00:10:58] Speaker 02:
Yes.

[00:10:59] Speaker 02:
So he was touching her.

[00:11:01] Speaker 02:
If there had been... I don't want to be touched.

[00:11:04] Speaker 02:
Exactly, Your Honor.

[00:11:06] Speaker 02:
And from Dr. Smolinski's point of view, he's watching this happen to his wife.

[00:11:12] Speaker 01:
And is this basically in the same conversation in which Dr. Smolinski, his own, his testimony was that the Colonel Hudson was repeatedly telling everyone in the group how much he hated Smolinski.

[00:11:28] Speaker 01:
Yes.

[00:11:28] Speaker 01:
I hate this man.

[00:11:29] Speaker 01:
I hate him.

[00:11:30] Speaker 02:
Yes, Your Honor, he pointed.

[00:11:31] Speaker 01:
So I hate him, I'm whispering this wife of your ear, and I'm touching her back.

[00:11:34] Speaker 01:
Yes, and there was very little that Dr. Smolinski could do.

[00:11:37] Speaker 01:
It's hard for me to conclude that isn't an allegation that is non-frivolous of abuse of authority.

[00:11:43] Speaker 02:
Yes, Your Honor, exactly.

[00:11:45] Speaker 02:
Anything further?

[00:11:46] Speaker 02:
Nothing further, Your Honor.

[00:11:47] Speaker 04:
Okay, why don't you say, oh.

[00:11:48] Speaker 04:
Our case law may not necessarily support that this is abuse of authority, but do you find anything in our case law that would prevent us

[00:11:58] Speaker 04:
from finding this point to be an abuse of authority.

[00:12:01] Speaker 02:
I do not, Your Honor.

[00:12:03] Speaker 02:
And I believe that it could be a separate argument if we were talking about the merits, but in terms of a non-frivolous allegation, no.

[00:12:11] Speaker 02:
I believe that it is squarely

[00:12:14] Speaker 01:
And that's all we have at this point are these allegations.

[00:12:18] Speaker 01:
Am I right in understanding that what would happen if we say this is a non-frivolous allegation, it would go back and then there would actually be more process and more opportunity to introduce evidence?

[00:12:28] Speaker 02:
Yes, Your Honor.

[00:12:29] Speaker 02:
There would be a discovery process, which this case greatly needs, and then there would be a hearing on the actual merits of the case.

[00:12:38] Speaker 04:
We did also give you the opportunity to make structural amendments to your complaint, because the complaint that I see is lacking a little bit on factual allegation that makes a connection between, let's say, the abuse of authority and what took place.

[00:12:59] Speaker 04:
It's not enough to say it was an abuse of authority.

[00:13:04] Speaker 02:
That's correct, Your Honor.

[00:13:06] Speaker 02:
There is development on the facts that needs to happen through the course of discovery.

[00:13:10] Speaker 02:
Unfortunately, like I said, there isn't a development of facts really before you get to this stage, a jurisdictional stage, because that jurisdiction, and then you go into discovery.

[00:13:21] Speaker 02:
And given what information is provided when someone files an OSC complaint, you're not given the other statements.

[00:13:27] Speaker 02:
We don't even have the entirety of the AR-15-6 investigation.

[00:13:31] Speaker 02:
We only have.

[00:13:33] Speaker 02:
Dr. Smolinski and Mrs. Smolinski, just because they happen to know each other well, we only have those two statements.

[00:13:39] Speaker 02:
We don't have the entirety of the investigation.

[00:13:42] Speaker 02:
So there is a lot, I agree, there are a lot of facts that need to be developed here.

[00:13:46] Speaker 04:
Yeah, but just for purposes of your analogation, just keep it out of the sphere of it being just conclusions.

[00:13:54] Speaker 04:
Yes, Your Honor.

[00:13:55] Speaker 04:
I think you probably already have enough information to do, to have such an amendment.

[00:14:01] Speaker 02:
Yes, Your Honor, I understand.

[00:14:02] Speaker 02:
I understand.

[00:14:03] Speaker 02:
Do you want to save the rest for rebuttal?

[00:14:05] Speaker 02:
Yes.

[00:14:06] Speaker 01:
Thank you, Your Honor.

[00:14:07] Speaker 01:
No problem.

[00:14:27] Speaker 01:
Mr. Calder, please proceed.

[00:14:32] Speaker 00:
It may please the court.

[00:14:34] Speaker 00:
I guess I'll start with Disclosure 2 because it seems there's interest in that.

[00:14:39] Speaker 05:
I'm sort of puzzled as to the government's position about this because we have a statute that deals with sexual harassment in the military and we have very detailed regulations which are

[00:14:51] Speaker 05:
in Army Regulation 620, which explicitly talk about the very kinds of things that happened here and suggest that those are inappropriate.

[00:15:05] Speaker 05:
So quite apart from a generalized statement about abuse of authority, we have a specific regulation here and a specific statute on the face of it

[00:15:14] Speaker 05:
The allegations seem to allege violations of the of the statute and the regulations.

[00:15:20] Speaker 05:
What's the problem?

[00:15:22] Speaker 00:
Well, let me start with the first problem.

[00:15:24] Speaker 00:
The first problem is some of the facts that were mentioned here by the chief judge.

[00:15:31] Speaker 00:
They're not in the complaint to the special counsel if you look on page 58.

[00:15:36] Speaker 00:
In fact, where that small of the back, touching on the small of the back, for example, where that comes from is the agency's evidence which the administrative judge was not allowed to consider.

[00:15:46] Speaker 00:
The court just said that in

[00:15:48] Speaker 00:
that no, the administrative judge cannot look at the agency's evidence at the jurisdictional threshold, what the judge can do.

[00:15:55] Speaker 01:
Can I ask a question?

[00:15:57] Speaker 01:
I thought that part of Simolinski's argument is that the testimony that he gave in the AR 15-6 investigation on its own is a protected disclosure, just the testimony.

[00:16:11] Speaker 01:
Is that right?

[00:16:14] Speaker 00:
So that would be, I think you're referring to what we're conceding here, which is cooperation with an internal investigation.

[00:16:21] Speaker 00:
is a claim by itself, which that's why we're asking for a remand on that.

[00:16:26] Speaker 00:
And the only disagreement we actually have with the petitioner is the scope of the remand.

[00:16:31] Speaker 00:
We believe the remand should be limited to this B9C claim, which says when you apply.

[00:16:38] Speaker 01:
Remind me then, what's the difference between B8 and B9?

[00:16:41] Speaker 00:
B8, the most significant difference is that B8, you have to look at the content of the disclosure.

[00:16:48] Speaker 00:
B9C, you don't.

[00:16:49] Speaker 00:
It's enough that you just say, look, we cooperated.

[00:16:51] Speaker 05:
But look, the disclosure on 63 is pretty specific.

[00:16:56] Speaker 05:
It says that he made Ms.

[00:17:02] Speaker 05:
Swaminski extremely uncomfortable by whispering in her ear and touching her to the point where she would mark that she'd been alone rather than sitting with other people around.

[00:17:10] Speaker 05:
She thought he would have assaulted her.

[00:17:13] Speaker 05:
I don't understand reading the regulations.

[00:17:16] Speaker 05:
how that isn't a very clear statement that there's a violation of the regulation, even though it doesn't mention the regulation itself.

[00:17:25] Speaker 00:
It did not need to mention the regulation, but factually, there's not much factual support.

[00:17:31] Speaker 00:
And it's also written in a very cryptic way.

[00:17:33] Speaker 00:
If she had been alone, she felt he would have assaulted her.

[00:17:37] Speaker 00:
But what the administrative judge did, which this court said is proper and not an abuse of discretion, is she asked for more factual support.

[00:17:45] Speaker 00:
She asked for more detail.

[00:17:46] Speaker 00:
by issuing a jurisdictional order.

[00:17:49] Speaker 05:
Look, the regulations says that any deliberate or repeated unwelcome verbal comment or gesture of a sexual nature by any member of the armed services.

[00:18:01] Speaker 05:
This isn't included within that?

[00:18:03] Speaker 00:
Well, of course, that wasn't brought up in the special counsel complaint.

[00:18:08] Speaker 05:
Well, it was.

[00:18:10] Speaker 05:
The statement of fact was brought up in the complaint.

[00:18:13] Speaker 05:
It's just that the regulation wasn't cited.

[00:18:15] Speaker 05:
You just said you didn't have to cite the regulation.

[00:18:17] Speaker 00:
You don't have to cite the regulation as long as the circum... This is what needs to happen.

[00:18:21] Speaker 00:
There needs to be enough factual support so that...

[00:18:25] Speaker 00:
You look at all the circumstances and you say, OK, that falls within this regulation.

[00:18:29] Speaker 05:
Well, how does it not fall within the regulation?

[00:18:31] Speaker 00:
So the administrative judge found it facially insufficient.

[00:18:35] Speaker 00:
And she did what this court has told administrative judges to do.

[00:18:39] Speaker 00:
She issued a jurisdictional order and said, please provide more details, more factual support.

[00:18:45] Speaker 00:
This is conclusory.

[00:18:47] Speaker 00:
And so there was a submission by the petitioner.

[00:18:50] Speaker 00:
It's explicit.

[00:18:52] Speaker 05:
It's exactly the sort of thing that I just read to you.

[00:18:54] Speaker 00:
But there was an opportunity to provide more detail and to explain.

[00:18:59] Speaker 01:
But if we conclude enough detail was present in the amended complaint to put everyone on notice that there's both a violation of regulation and that this amounts to abuse of authority based on exactly what's here, doesn't that end it?

[00:19:14] Speaker 01:
I mean, we're reviewing this de novo, right?

[00:19:18] Speaker 00:
If you're asking me if the court believes that this is facially sufficient on page 58, then yes.

[00:19:24] Speaker 00:
If the court believes that this is facially sufficient, there's enough factual information in the allegation, then- To amount to a non-frivolous- To amount to a non-frivolous allegation, yes.

[00:19:37] Speaker 00:
Then that would be something else for your remand.

[00:19:41] Speaker 01:
Is it the government's position that sexual harassment is not an abuse of authority?

[00:19:51] Speaker 00:
No.

[00:19:51] Speaker 00:
The government's position is there's not enough factual information to make a finding that there's sexual harassment.

[00:19:57] Speaker 01:
We don't have to make a finding.

[00:19:58] Speaker 01:
We just have to have an allegation, correct?

[00:20:00] Speaker 00:
That there's not a non-frivolous allegation of sexual harassment.

[00:20:04] Speaker 01:
So when a person unwontingly touches you and whispers in your ear,

[00:20:11] Speaker 01:
You don't think that that is an allegation of sexual harassment?

[00:20:16] Speaker 00:
It could be with more, certainly with more, but you need... An allegation.

[00:20:20] Speaker 01:
She made it clear it was unwanted in the allegation.

[00:20:23] Speaker 01:
The allegation makes it clear it was unwanted and made her feel uncomfortable.

[00:20:26] Speaker 01:
He physically touched her.

[00:20:29] Speaker 01:
and what you shake your hand according to the allocation right that would be sort of the kind of thing that i think a reasonable person would say put his hand on the small of her back really feels odd i don't have many strangers walk up to me and put their hands on the small of my back certainly would make me feel uncomfortable i understand that's not the standard it's what would a reasonable person understand this allegation that way but

[00:20:53] Speaker 01:
I'm hard pressed to imagine a reasonable person wouldn't.

[00:20:57] Speaker 03:
You say you need more, more what?

[00:20:59] Speaker 03:
More tax or more conduct?

[00:21:01] Speaker 00:
You know that allegation, small for back, that would be more.

[00:21:05] Speaker 00:
But that's not in the complaint and that was in something the judge could not consider.

[00:21:10] Speaker 00:
What about whispering in your ear?

[00:21:12] Speaker 00:
That was in the complaint.

[00:21:13] Speaker 00:
That could be considered.

[00:21:15] Speaker 01:
The touching is in the complaint, correct?

[00:21:16] Speaker 00:
The touching is in the complaint.

[00:21:17] Speaker 00:
So the judge is saying, give me more.

[00:21:19] Speaker 00:
And instead of providing more detail, if you compare page 58.

[00:21:23] Speaker 05:
What more detail is required?

[00:21:25] Speaker 05:
I mean, the regulation is explicit, that that sort of thing is a violation of the regulation.

[00:21:32] Speaker 00:
Again, as I conceded to the chief judge, if the court believes that's sufficient.

[00:21:36] Speaker 05:
Well, I don't understand how the government can take a position that it's not sufficient.

[00:21:42] Speaker 00:
because it was not an abuse of discretion for the administrative judge who found it to be vague to ask for more information.

[00:21:49] Speaker 00:
And instead of providing more information, if you compare

[00:21:52] Speaker 00:
In the record, you know, page 58 and page 63 with page 122, it's almost verbatim.

[00:21:58] Speaker 00:
It's the same exact language.

[00:21:59] Speaker 00:
And it's this conditional language about if this had happened, then this would have happened.

[00:22:04] Speaker 00:
It's not just a statement of fact.

[00:22:06] Speaker 00:
And a statement about touching, would it be really helpful to have that small of the back fact as part of the allegations, I would think.

[00:22:15] Speaker 00:
I mean, it's definitely been pointed out by the court that that's significant.

[00:22:18] Speaker 00:
But it's not in it.

[00:22:18] Speaker 00:
It wasn't made.

[00:22:20] Speaker 00:
That's in the agency's evidence, which again, the administrative judge was not allowed to consider.

[00:22:25] Speaker 00:
So that's why the administrative judge properly, the court in Young said, it's proper for an administrative judge faced with a situation where she believes that there's not enough there to find out what category of wrongdoing it falls in in BA to order the party to provide more factual support.

[00:22:45] Speaker 00:
The administrative judge did that here.

[00:22:47] Speaker 00:
And instead of providing more factual support, the petitioners repeated the same words verbatim

[00:22:54] Speaker 00:
In this in the submission responding to that or is very much like young this whole case is very similar to young in that respect that there was an opportunity here to provide more factual detail and the Petitioner didn't do so did not respond to the order with more facts or more detail and

[00:23:14] Speaker 00:
So the administrative judge had to figure out, where does this fit in B-8?

[00:23:18] Speaker 00:
What category does it fit in to B-8?

[00:23:20] Speaker 00:
Is it a violation of law?

[00:23:22] Speaker 00:
You point out this Army regulation that was never... How about abuse of authority?

[00:23:26] Speaker 04:
How about abuse of authority?

[00:23:28] Speaker 00:
Abuse of authority, the definition is that it was done for personal gain or for someone else's, some favored person's, preferred person's personal gain.

[00:23:37] Speaker 04:
In terms of sexual harassment or this type of situation, what else would it be other than personal gain?

[00:23:44] Speaker 00:
Sexual harassment could be a violation of law or, as Judge Dyke pointed out, could be a violation of an Army regulation.

[00:23:50] Speaker 01:
Is it your view that sexual harassment cannot fit within the definition of abuse of authority?

[00:23:58] Speaker 00:
It could, with the right facts.

[00:24:01] Speaker 00:
It definitely could.

[00:24:02] Speaker 01:
Sometimes it wouldn't.

[00:24:03] Speaker 01:
Sometimes things that would unequivocally amount to sexual harassment do not constitute an abuse of authority.

[00:24:08] Speaker 00:
Facts that unequivocally amount to sexual harassment could definitely fit with an abuse of authority.

[00:24:13] Speaker 00:
It would be abuse of authority to sexually harass an employee, for example.

[00:24:18] Speaker 01:
Now, which category would that fall into?

[00:24:20] Speaker 01:
Personal gain or affecting the rights of others?

[00:24:22] Speaker 00:
Affecting the rights of others.

[00:24:24] Speaker 01:
So it would affect the rights of others if you sexually harass them.

[00:24:27] Speaker 00:
Yes.

[00:24:29] Speaker 00:
Sexual assault, I suppose, could fall in either category or both categories.

[00:24:34] Speaker 00:
Again, she's saying it was not sexual assault.

[00:24:36] Speaker 00:
The administrative judge addresses this in a footnote and points out that there's just agency evidence about this that she can't consider, but says there's just not enough here to conclude that it's sexual harassment.

[00:24:50] Speaker 00:
If the court finds differently than, I mean, we were already asking for a remand.

[00:24:53] Speaker 00:
If the court finds differently, that could be part of the remand instructions to also consider this Disclosure 2.

[00:25:00] Speaker 00:
I can address the other disclosures if the court would like.

[00:25:03] Speaker 00:
Disclosure 1 uses this phrase, substandard care, and never provides any more information about what that was.

[00:25:13] Speaker 00:
So again the administrative judge asked for more detail about the substandard care and never received any the Disclosure one is described exactly the same in the response to her order The courts already discussed disclosures three and four, but I'm happy to discuss those as well What about mr. Smolinski's claim?

[00:25:38] Speaker 01:
that Colonel Hudson was drunk and was bullying him and trying to intimidate him.

[00:25:43] Speaker 01:
Would that on its face be an abuse of authority given that Mr. Smolenski is a subordinate ultimately to Colonel Hudson?

[00:25:51] Speaker 00:
And again, that would be how does that fit into abuse of authority?

[00:25:55] Speaker 00:
How is that for his personal gain or... You don't think if I bully you I'm affecting your rights?

[00:26:03] Speaker 01:
If I treat you in a work setting in a way as to intimidate you, I'm not affecting your rights?

[00:26:11] Speaker 00:
If there was a threat to do something employment related, that would be pretty clear.

[00:26:16] Speaker 01:
But intimidating, saying I hate you repeatedly in front of a group of people at a work function doesn't affect your rights?

[00:26:24] Speaker 00:
Again, that I hate you, that's in the agency evidence which the administrative judge was not allowed to consider.

[00:26:29] Speaker 01:
Fine, but the page 58 says he

[00:26:33] Speaker 01:
Intimidated me.

[00:26:35] Speaker 01:
Let's see what he said.

[00:26:36] Speaker 01:
Intimidated, yes.

[00:26:37] Speaker 01:
Colonel Hobson was physically intoxicated and attempted to intimidate Dr. Smolinski as a lower ranking officer.

[00:26:43] Speaker 00:
So the administrative judge does not abuse her discretion by saying, tell me more.

[00:26:46] Speaker 00:
Give me more detail about this.

[00:26:48] Speaker 00:
How did he intimidate you?

[00:26:49] Speaker 00:
How did he bully you?

[00:26:51] Speaker 00:
And the facts that you're mentioning are not provided by the petitioner.

[00:26:55] Speaker 01:
They're not part of the B-8, but they are part of the B-9.

[00:26:58] Speaker 01:
Is that right?

[00:27:00] Speaker 00:
The B-9, the content doesn't matter.

[00:27:02] Speaker 00:
OK.

[00:27:02] Speaker 00:
So all that matters.

[00:27:03] Speaker 01:
I'm trying to keep these two things separate in my head.

[00:27:05] Speaker 01:
I don't have it.

[00:27:06] Speaker 00:
Yeah.

[00:27:06] Speaker 00:
So it's an important distinction, because the content doesn't matter, it's much more straightforward.

[00:27:11] Speaker 00:
All that needs to be alleged is I cooperated with this internal investigation, and then I was retaliated against after that.

[00:27:18] Speaker 00:
And there's enough there that we think it should be remanded for a hearing on that claim.

[00:27:24] Speaker 01:
Why would it need to be remanded for a hearing on that claim, given what's alleged?

[00:27:27] Speaker 01:
Why wouldn't we just remand and say there's enough there?

[00:27:30] Speaker 00:
On the B-9.

[00:27:32] Speaker 01:
On the B-9.

[00:27:35] Speaker 00:
On the B-9.

[00:27:36] Speaker 00:
Well, we agree that there's enough there to remand it for a hearing.

[00:27:39] Speaker 01:
Oh, for a hearing, not a jurisdictional hearing.

[00:27:41] Speaker 01:
A hearing.

[00:27:41] Speaker 01:
No, but this would be... No, in... You're admitting that there's enough there to move forward on that claim.

[00:27:46] Speaker 01:
Right.

[00:27:47] Speaker 01:
I misunderstood.

[00:27:48] Speaker 01:
I thought you were only agreeing that there's enough there to remand for the court to consider the issue, or the board to consider the issue, since they hadn't already.

[00:27:57] Speaker 01:
For jurisdictional purposes.

[00:27:59] Speaker 00:
No, we believe there is jurisdiction on that.

[00:28:01] Speaker 00:
And there shouldn't be any jurisdictional hearing because the jurisdiction is based on the written record.

[00:28:07] Speaker 00:
And that's part of the problem with the other claims is the administrative judge has to look at the written record, cannot look at agency evidence, has to look at what the petitioner has provided.

[00:28:18] Speaker 00:
And you look at page 58, and that's what she has to go by.

[00:28:22] Speaker 05:
Well, but again, you've got a very specific regulation, which has a heading, bullying in it.

[00:28:28] Speaker 05:
and you have an allegation of bullying.

[00:28:32] Speaker 00:
Why isn't that enough?

[00:28:37] Speaker 00:
He had attorneys, and they could have mentioned this regulation, but they did not.

[00:28:42] Speaker 00:
Well, you just said earlier they don't have to mention the regulation.

[00:28:45] Speaker 00:
The court has said you don't have to mention it.

[00:28:47] Speaker 00:
You should mention it.

[00:28:48] Speaker 00:
But if the circumstances make it clear what law or regulation you're talking about,

[00:28:53] Speaker 00:
then that's enough.

[00:28:55] Speaker 00:
I'm not sure it's clear from what's been alleged here that there's an Army regulation that's been violated.

[00:29:00] Speaker 00:
I mean, it wasn't mentioned, and there's no attempt to make it fit into it.

[00:29:05] Speaker 01:
What authority do you have for the notion that the ALJ cannot look at the actual testimony?

[00:29:12] Speaker 00:
Hessamy.

[00:29:14] Speaker 00:
The Hessamy case, the court said in Hessamy that it was error for the administrative judge to look at the agency's evidence at the jurisdictional stage.

[00:29:25] Speaker 00:
Prior to Hessamy, and Hessamy clarified some other earlier cases, prior to Hessamy, the administrative judges basically used a summary judgment standard where they looked at everything in the record.

[00:29:35] Speaker 00:
So this appendix, at the end of it, is the agency evidence.

[00:29:40] Speaker 00:
All this stuff at the end with the agency evidence, that wasn't considered by the administrative judge because she was at the jurisdictional stage.

[00:29:47] Speaker 00:
So she was following Hessamy, which came out, I think, in 2020 or 2021.

[00:29:52] Speaker 00:
It's a very recent case.

[00:29:54] Speaker 00:
And she cites the Hessamy.

[00:29:56] Speaker 01:
So just one more time so I understand, why do you think this shouldn't be vacated and remanded under B-8?

[00:30:01] Speaker 01:
What is it that is unique about B-8 as opposed to B-9?

[00:30:09] Speaker 00:
For B-8, it has to fall in one of those categories of wrongdoing based on the content of the disclosure.

[00:30:16] Speaker 01:
The content of pages 58 and 59 that content the content of what what is that's right page 58 and 63 Those are the what was what was presented to OSC so so under be a these What is page 58 and 63 only what's disclosed here?

[00:30:37] Speaker 01:
would have to create in the mind of a reasonable person an allegation of abuse of authority and

[00:30:45] Speaker 01:
I don't think I said that exactly right.

[00:30:48] Speaker 00:
No, I think that's correct.

[00:30:49] Speaker 00:
A reasonable belief that there was an abuse of authority.

[00:30:51] Speaker 00:
I think that's correct.

[00:30:53] Speaker 01:
OK, so 58 and 63.

[00:30:56] Speaker 01:
I can only look at those.

[00:30:57] Speaker 01:
I can't look at small of the back, because that's not on 58 and 63.

[00:31:01] Speaker 01:
I can only look at these and say, does this, as alleged, not whether it's true or not, but as alleged, amount to what a normal, reasonable person would think is an abuse of authority?

[00:31:13] Speaker 00:
Right.

[00:31:14] Speaker 00:
And you can also look at, and the administrative judge could also look at, what the petitioner provided in response to her order.

[00:31:22] Speaker 00:
And that, as relevant here, is at 122.

[00:31:25] Speaker 00:
But it's the same thing.

[00:31:26] Speaker 00:
It's the same language.

[00:31:27] Speaker 00:
There's nothing new stated.

[00:31:29] Speaker 00:
And I believe I'm over my time.

[00:31:31] Speaker 00:
But if there's any other questions.

[00:31:34] Speaker 01:
No.

[00:31:34] Speaker 01:
Thank you very much.

[00:31:37] Speaker 01:
Ms.

[00:31:37] Speaker 01:
Rapateli, you have some rebuttal time.

[00:31:57] Speaker 02:
Thank you, Your Honors.

[00:32:00] Speaker 02:
The AR-15-6 investigation and statement is itself a disclosure.

[00:32:06] Speaker 02:
And so as itself a disclosure, it can be considered.

[00:32:11] Speaker 02:
And it is clear in that statement, it is very evident what was described that happened at the holiday ball and also what happened at the ER Medical Center three days prior to the holiday ball.

[00:32:27] Speaker 02:
And unlike what my opposing counsel has said, it is heavily discussed what happened.

[00:32:34] Speaker 02:
And so the points, Chief Judge Moore, that you raised are in that disclosure.

[00:32:39] Speaker 02:
Itself is a disclosure.

[00:32:41] Speaker 02:
The participation in that AR-15-6 investigation is itself a disclosure.

[00:32:46] Speaker 05:
Well, that may be, but the question is whether that evidence can be considered to elaborate on the other disclosures, which are separately sent to be protected.

[00:32:57] Speaker 02:
Yes, because those disclosures are a B8 type of disclosure.

[00:33:04] Speaker 02:
The AR-15-6 investigation is a B9 disclosure.

[00:33:07] Speaker 02:
So it stands alone as itself as a disclosure.

[00:33:11] Speaker 02:
And it is discussed in the OSC complaint.

[00:33:13] Speaker 02:
It is referred to and discussed in that.

[00:33:18] Speaker 02:
And in fact, the closure letter makes note of it.

[00:33:22] Speaker 05:
Where is it mentioned in the Office of Special Counsel Disclosure?

[00:33:27] Speaker 02:
See my other evidence.

[00:33:30] Speaker 05:
I'm sorry the other evidence.

[00:33:31] Speaker 05:
Where's the other evidence mentioned in the closure letter?

[00:33:35] Speaker 05:
In the in the display in this disclosure the complaint made the office of special counsel

[00:33:42] Speaker 02:
No, Your Honor.

[00:33:43] Speaker 02:
What I'm saying, I'm sorry, is that it self-stands alone as a disclosure.

[00:33:47] Speaker 01:
Yeah, a benign disclosure.

[00:33:49] Speaker 01:
Correct.

[00:33:49] Speaker 01:
But we were misunderstanding.

[00:33:50] Speaker 01:
I think I'm in the same place as Judge Dyke.

[00:33:52] Speaker 01:
I thought you were saying that the AR 15-6 statements could be considered to determine whether the OSC complaint, a separate disclosure, qualifies under BA.

[00:34:09] Speaker 01:
That's what I'm confused by.

[00:34:12] Speaker 01:
I think that's what you're getting at, too.

[00:34:15] Speaker 01:
He said, I can't look outside what is written.

[00:34:18] Speaker 01:
One page 58 and 63 and 122.

[00:34:21] Speaker 01:
I may not get them right, but something like that.

[00:34:24] Speaker 01:
And you stood up and said, yes, you can.

[00:34:26] Speaker 01:
You can look at the 15-6.

[00:34:28] Speaker 01:
But I thought that's for B-9.

[00:34:30] Speaker 02:
Correct.

[00:34:31] Speaker 02:
But that's because the 15-6 is a B-9 disclosure.

[00:34:35] Speaker 02:
And that brings in the facts.

[00:34:37] Speaker 01:
So it's a part of the universe that the AJ can consider in determining whether there is a whether the OSC complaint satisfies the non-frivolous allegation as its own B-8 disclosure.

[00:34:49] Speaker 01:
Whether Dr. Smolinski has made a non-frivolous

[00:34:53] Speaker 01:
State an allegation of what what no a b8 whether it whether the osc complaint is a non-frivolous b8 disclosure The osc complaint is both a b8 and a b1 they can be both You can have both yes, but in assessing whether the osc is a b8 disclosure Can the aj look outside of the four corners of the osc complaint?

[00:35:19] Speaker 02:
for just that purpose for and I'm saying

[00:35:23] Speaker 02:
Saying for this purpose that the AR-15-6 is its own standalone disclosure, that is part of that consideration.

[00:35:32] Speaker 02:
So the administrative judge should have looked at the OSC complaint, the amendment, and the AR-15-6 statement.

[00:35:45] Speaker 04:
Okay.

[00:35:45] Speaker 04:
Did you make that argument before us?

[00:35:48] Speaker 02:
I believe it, I don't think it was stated as I just said it.

[00:35:51] Speaker 02:
because I don't know that that was an issue explicitly stated in the opposition brief.

[00:35:58] Speaker 02:
However, that encompasses why the administrative judge's decision is wrong, because she enters into the world of evaluating the merits and not the jurisdiction.

[00:36:12] Speaker 02:
If I may briefly conclude, if there are no other questions, we respectfully request that the court reverse the initial decision, and in addition, appellant

[00:36:20] Speaker 02:
Expect respectfully request that if the entirety is remanded that the court consider reassignment upon remand as appropriate Okay, I think both counsel this case is taken under submission