[00:00:00] Speaker 00: Vanister versus DVA. [00:00:02] Speaker 00: Mr. Webb, whenever you're ready. [00:00:06] Speaker 02: Good morning, Your Honors. [00:00:07] Speaker 02: May it please the Court? [00:00:10] Speaker 02: This case involves Petitioner Angelina Vanister was issued conduct on becoming charged and underlined that conduct on becoming charged as four specifications. [00:00:23] Speaker 02: I would like to jump right into the specifications and [00:00:27] Speaker 02: Underline the specifications is a case that this, uh, that this court came out with in August of this of 2021. [00:00:37] Speaker 00: Sorry to interrupt. [00:00:37] Speaker 00: This is Judge Prost, but I know your time is short and I'm glad you got right to at least what I think is most, most important or difficult for me in this case. [00:00:48] Speaker 00: And that is the Rodriguez question and the burden of proof that was laid on it. [00:00:55] Speaker 00: Starting with that, I don't quite understand. [00:00:58] Speaker 00: I assume your argument is that you didn't have to preserve this in blue because Rodriguez didn't come out till August. [00:01:08] Speaker 00: And then in gray, I'm not sure what you're asking our court to do with Rodriguez in this case. [00:01:16] Speaker 02: In this case, we're asking the court to reverse and remand for further proceedings in line with the Rodriguez case. [00:01:26] Speaker 02: If the administrative judge does not review a case with the proper burdens of proof, according to Rodriguez, the petitioner is entitled to a new hearing. [00:01:40] Speaker 02: And in terms of preservation, [00:01:42] Speaker 02: It didn't come out, the case did not come out until our response brief or our reply brief, and we addressed Rodriguez at some length in our reply brief. [00:01:53] Speaker 00: Okay, but tell me again, I guess I'm still a little unclear about what you want us to do. [00:02:00] Speaker 00: So you want us to say the AJ got it wrong because he applied the wrong standard of substantial evidence, at least to its review of the deciding officials. [00:02:11] Speaker 00: decision, right? [00:02:13] Speaker 00: That is correct, Your Honor. [00:02:14] Speaker 02: Okay. [00:02:15] Speaker 02: So far, we did it, but to be honest, in addition to a further review, we went into quite a bit of analysis as to why, even under preponderance of the evidence standard, the agency cannot prove by preponderance of the evidence that appellant or that petitioner occasionally [00:02:37] Speaker 00: Well, that was what was a little confusing to me, candidly, because it sounded to me like you were expecting us to do initial fact finding in the first instance under a preponderance standard. [00:02:50] Speaker 00: And that's obviously not something that we normally would do. [00:02:53] Speaker 00: You understand? [00:02:54] Speaker 02: That is correct, Your Honor. [00:02:56] Speaker 02: And I do apologize. [00:03:00] Speaker 02: The brief could have been more clear on that. [00:03:02] Speaker 02: And I came into this oral argument intending to correct that and truly [00:03:07] Speaker 02: We believe that if there's a different standard that comes out, or if there's new caseload that comes out after the fact, much like the court did with Rodriguez, it should be remanded for a new hearing and whatever administrative judge. [00:03:21] Speaker 00: Yeah, so we would send it back to the administrative judge. [00:03:24] Speaker 00: But as I think the court said in Rodriguez, presumably the administrative judge [00:03:30] Speaker 00: presumably, I don't know for sure, we didn't order it, to send it back to the deciding official because the error that's at issue in this case is what the deciding official said, not exclusively what the A.J. [00:03:43] Speaker 00: did, right? [00:03:44] Speaker 00: That is correct, Your Honor. [00:03:46] Speaker 00: Okay. [00:03:47] Speaker 00: So a little sub-question. [00:03:50] Speaker 05: Go ahead. [00:03:51] Speaker 05: Sorry, I just wanted to clarify, this is Judge Hughes, because I was confused by what you were saying. [00:03:56] Speaker 05: Do you think the AJ applied the wrong standard in reviewing the agency action or that the agency applied the wrong standard in the first place? [00:04:06] Speaker 02: The agency applied the wrong standard in the first place. [00:04:10] Speaker 02: To be honest with you, it's both. [00:04:12] Speaker 02: The agency is required to use a proponents of the evidence and then also in reviewing, it should be proponents of the evidence as well. [00:04:25] Speaker 05: What's your support, because the statute I think explicitly says the board uses a substantial evidence standard. [00:04:33] Speaker 05: What's your support for the fact that the board should use a preponderance standard? [00:04:38] Speaker 02: I'm sorry, Your Honor. [00:04:39] Speaker 02: I misspoke. [00:04:40] Speaker 02: It's that the agency and the deciding official should use the preponderance of the evidence standard and that the board, the statute does say substantial evidence. [00:04:51] Speaker 02: And what happened was that the [00:04:53] Speaker 05: So there was no error in the board's standard of review. [00:04:57] Speaker 05: It applied the right standard of review to the agency's decision. [00:05:02] Speaker 05: You just think the agency's initial decision was legally erroneous under Rodriguez. [00:05:08] Speaker 02: Under Rodriguez, the administrative judge initially reviewed the burden of proof set forth that the agency reviewed the decision or made this determination with the incorrect burden of proof. [00:05:24] Speaker 02: And the administrative judge... Go ahead, I'm sorry. [00:05:28] Speaker 02: And then the administrative judge upheld their decision stepping in, essentially stepping into the shoes of the deciding official and using that same substantial evidence standard. [00:05:43] Speaker 00: Can I... Sorry. [00:05:45] Speaker 02: Judge Hughes? [00:05:49] Speaker 05: No, go ahead. [00:05:50] Speaker 00: No, I mean, let me try to clarify what I think may be the answer to the question and maybe you can tell me if you agree with this. [00:05:58] Speaker 00: You're not saying the agency gets to, the AJ gets to apply substantial evidence. [00:06:03] Speaker 00: standard of review. [00:06:05] Speaker 00: I don't think that's in dispute. [00:06:08] Speaker 00: I thought what you were saying was the agency got it wrong by not applying preponderance. [00:06:13] Speaker 00: And the AJ got it right, it got it wrong only because it said that the agency's application of substantial evidence was OK. [00:06:24] Speaker 00: But you're not challenging the fact that the AJ, in its own review of this, could apply substantial evidence. [00:06:31] Speaker 00: That is correct, Your Honor. [00:06:32] Speaker 00: That is correct. [00:06:38] Speaker 05: Okay, so that leads me to an additional question. [00:06:42] Speaker 05: You had a full hearing before the board, right? [00:06:44] Speaker 05: You did discovery and you had witness testimony and there was cross, is that correct? [00:06:50] Speaker 05: That is correct. [00:06:52] Speaker 05: And the AJ made factual findings based upon all of that? [00:06:56] Speaker 02: That is correct, Your Honor. [00:06:58] Speaker 05: Why isn't the fact that the AJ made independent factual findings, you know, [00:07:06] Speaker 05: that your client committed this conduct and the like sufficient to find that any error by the agency is harmless because the independent adjudicator at the MSPB has sustained the charges as well. [00:07:22] Speaker 02: Well, my answer to that is that the administrative judge should be looking to the, and she does, [00:07:30] Speaker 02: delve into the substantial evidence standard quite a bit. [00:07:32] Speaker 02: And she makes quite a bit about the substantial evidence and the low burden of proof. [00:07:39] Speaker 02: And so therefore, if she reviews it based upon a higher, with a higher burden of proof, we believe that the analysis should come out differently when she does that. [00:07:50] Speaker 02: Furthermore, in Rodriguez, it's, to my knowledge, [00:07:58] Speaker 02: upon reviewing the Rodriguez case is that there's little to no harmless error analysis there. [00:08:08] Speaker 02: What the court focused on was that it was the wrong burden of proof that was analyzed and therefore that petitioner, the petitioner on Rodriguez was entitled to a new hearing. [00:08:22] Speaker 05: Sure, but I mean the fact that Rodriguez didn't look at harmless error doesn't mean that we're not. [00:08:27] Speaker 05: required to look at harmless air. [00:08:29] Speaker 05: Appellate courts generally do look to see if air is harmless. [00:08:33] Speaker 05: And if there's factual findings that support the removal, even if the agency applied the wrong standard, then we would find them harmless. [00:08:43] Speaker 05: I guess what I'm asking is, is there any question, given the AJ's findings and hearing the testimony and the like, that this misconduct occurred? [00:08:53] Speaker 02: Absolutely. [00:08:54] Speaker 02: And that's why a lot of our briefs [00:08:57] Speaker 02: It did focus on kind of rehashing what happened and the specifications. [00:09:04] Speaker 02: There is a testimony that was provided via deposition, particularly regarding Specification 1, where the veteran that was at issue there, he completely reneged on the version of events [00:09:20] Speaker 02: stated that everything was his fault. [00:09:22] Speaker 00: This is gross. [00:09:24] Speaker 00: I get that but the A.J. [00:09:25] Speaker 00: made quite detail. [00:09:28] Speaker 00: I mean he listened to the witnesses. [00:09:29] Speaker 00: You know credibility determinations receive a lot of deference here. [00:09:34] Speaker 00: He heard from the witnesses, he heard everything you said and I think he found on a lot of points if not every point that he did not believe your client and he believed the people who had a different story. [00:09:47] Speaker 00: Normally, that's not even anything we get. [00:09:49] Speaker 00: We come close to dislodging at the appellate level, right? [00:09:56] Speaker 00: So you're sort of looking for a different finding and a do-over on credibility determinations that have been made by the AJ. [00:10:06] Speaker 00: That's how I understand Judge Hughes' point, which I kind of have the same question about. [00:10:12] Speaker 02: Well, to that, I think [00:10:15] Speaker 02: When it comes to the Hillen factors, the administrative judge certainly relies heavily on the witnesses' demeanor. [00:10:23] Speaker 02: I don't think that the other evidence, particularly Mr. Richard Miller's deposition, was taken into consideration. [00:10:35] Speaker 02: The inconsistent statements by the other witnesses, by the agency's witnesses, so I do think that if you look at the specific Hillen factors, there is room to doubt. [00:10:45] Speaker 02: the administrative judge's opinion and there's quite a bit in all cases where judges rely on demeanor and they kind of do away with the other Hillen factors and it kind of leaves one to question why the other Hillen factors are even present when so much about demeanor is relied upon. [00:11:12] Speaker 02: But further though, there is an affirmative defense [00:11:15] Speaker 02: I guess the question that we've been pondering is how does the credibility play into the different burdens of proof? [00:11:26] Speaker 02: So there's, when it comes to the affirmative defense, there's the clear and convincing evidence, substantial evidence and preponderance of the evidence. [00:11:36] Speaker 02: If ultimately the judge's determination of a witness's demeanor is gonna effectively trump [00:11:44] Speaker 02: all three of those burdens of proof, it seems that those burdens of proof would be obviated and that there would be no need if the court is simply going to rely on a judge's determination of a witness's demeanor. [00:12:00] Speaker 05: I'm not sure I understand what you're trying to tell us. [00:12:03] Speaker 05: I mean, that's the role of a trial-level adjudicator is to hear witness testimony and judge whether it's credible, and we defer to that. [00:12:13] Speaker 05: Under that standard, they apply whatever standard they're applying and say, we believe this person, not that person. [00:12:22] Speaker 05: Aren't we bound by that? [00:12:26] Speaker 02: Not necessarily. [00:12:28] Speaker 02: If there's another, there's other factors. [00:12:32] Speaker 02: Sure, I understand. [00:12:33] Speaker 05: I understand there's exceptions that basically it's just so entirely [00:12:39] Speaker 05: incredible that the Administrative Judgment bought it or something like that. [00:12:43] Speaker 05: But you bring up an important point, I think, although, you know, it wasn't briefed tangentially, but it gets back into the standard of proof. [00:12:52] Speaker 05: I mean, the AJA did go on and find that at least one whistleblower claim had been met [00:13:01] Speaker 05: And so it switched the burden to the agency to show that it would have taken the action by clear and convincing evidence. [00:13:08] Speaker 05: That's right, isn't it? [00:13:10] Speaker 02: That is correct, Your Honor. [00:13:12] Speaker 05: So why doesn't that render, even if on the main part of the removal case, the agency applied the wrong standard, why doesn't that, and the AJ uses substantial evidence standard on that, why doesn't the fact that the AJ found [00:13:27] Speaker 05: that on the whistleblower part, the AJ still would have taken this action and under clear and convincing evidence. [00:13:34] Speaker 05: So under an even higher standard than is required of the agency, the board judge found that the suspension would have been undertaken. [00:13:46] Speaker 05: Doesn't that render any error by the agency armless? [00:13:51] Speaker 02: Not necessarily, certainly not according to the Rodriguez court that specific argument was made. [00:13:57] Speaker 05: Let's just set aside Rodriguez because I don't think Rodriguez says anything about harm look there one way or another. [00:14:02] Speaker 05: So, but my question is, is if, and you would, you might, there's definitely some question here, but if the AJ has looked at this suspension action under two different standards, one is it applied a substantial evidence standard to review it. [00:14:16] Speaker 05: on the merits under the regular procedures under 7-14, which may or may not have been infected by the agency's use of an improper standard. [00:14:26] Speaker 05: But on the whistleblower side of the case, it applied the proper clear and convincing evidence standard and said even with the whistleblower disclosure, the agency is shown by clear and convincing evidence that it would have taken this 30-day action. [00:14:40] Speaker 05: That wasn't an issue in Rodriguez. [00:14:42] Speaker 05: So why isn't the fact that the AJ has looked at this under an even higher standard than the agency should have applied and found that it was sustainable enough to find harmless air? [00:14:56] Speaker 02: If you look at the, I think it goes to the fourth Hillen factor, the witnesses bias or lack of a bias. [00:15:07] Speaker 05: No, no, no, no. [00:15:09] Speaker 05: I don't want to get into whether the AJ was right or not about its findings. [00:15:14] Speaker 05: I'm at a higher level. [00:15:15] Speaker 05: Let's just assume the AJ was right, the agency met its burden under the clear and convincing evidence standard. [00:15:22] Speaker 05: Wouldn't that lead to a conclusion that any possible error on the direct appeal of the adverse action is harmless? [00:15:32] Speaker 05: Because the agency has met a higher standard than it was required to meet in the first place. [00:15:40] Speaker 02: Potentially, Your Honor, potentially, yes. [00:15:44] Speaker 00: Mr. Webb, can I move you on to a kind of a different but related question? [00:15:48] Speaker 00: And this is purely in the hypothetical and maybe a little in the we. [00:15:52] Speaker 00: Let's assume hypothetically, solely on the Rodriguez standard of proof point, we were to conclude, as I think Rodriguez did in their case, that the agency applied the wrong standard. [00:16:08] Speaker 00: What happens next? [00:16:10] Speaker 00: I mean, if you're asking for a do-over under the right standard, that suggests not just a do-over by the AJ, but a do-over by the deciding official. [00:16:20] Speaker 00: If that's where we go, again, leaving aside all the harmless error problems and stuff like that, [00:16:26] Speaker 00: What happens, your case only involves a suspension. [00:16:30] Speaker 00: So it's writing a check or not writing a check, I guess, for back pay. [00:16:35] Speaker 00: But what we say here might affect lots of other cases, including cases where there's been a removal. [00:16:41] Speaker 00: You're not suggesting, are you, that in the interim, while the agency is doing a do-over under the correct standard of proof that [00:16:54] Speaker 00: the employee would have to be reinstated or given some sort of back pay and then the do-over just starts to run from the date of the do-over as opposed to retroactively once the error is cleared, assuming again that the agency reaches the same decision. [00:17:12] Speaker 00: I know that's convoluted, but do you understand what I'm saying and do you have any view on that? [00:17:16] Speaker 03: Have you thought that through? [00:17:17] Speaker 03: I think any kind of determination would come after the decision. [00:17:24] Speaker 03: I'm sorry, can you clarify what you mean by that? [00:17:27] Speaker 02: I'm sorry, any kind of consequences or back pay, we would expect that that would come after a new determination. [00:17:36] Speaker 00: OK, so once we see what the deciding official comes up with, obviously, if he changes his mind on review, then your client is going to win, get something. [00:17:48] Speaker 00: But if he doesn't change his mind, nothing in the interim has to change. [00:17:51] Speaker 00: The status quo is maintained, right? [00:17:53] Speaker 00: Is that what you said? [00:17:55] Speaker 02: That is correct, Your Honor. [00:17:56] Speaker 02: And further, I just wanted to note that having any kind of negative disciplinary actions in your SF50 [00:18:07] Speaker 02: is pretty substantial in the federal government. [00:18:10] Speaker 02: So to any degree, in terms of what benefit the petitioner might be getting, it's a pretty substantial benefit that she gets if the suspension is completely overturned in terms of her record. [00:18:26] Speaker 02: And then furthermore, to the extent that it's there, Connor, we didn't get her, [00:18:36] Speaker 02: to the extent I have time left, the Connor decision as well, it's clear that the administrative judge, and there is a portion in the hearing where it's discussed, the judge interjects and states that there should be no Douglas factor analysis, and this is on Appendix 1660. [00:19:00] Speaker 02: And so the same issue there, it appeared that with the Douglas Court, [00:19:06] Speaker 02: They also remanded simply because, and it appears without a, they didn't do much of a harmless error analysis. [00:19:15] Speaker 02: And so without going into that, they remanded for those reasons as well. [00:19:24] Speaker 00: Hearing no other questions from my colleagues, why don't we hear from the government and we'll retain the rebuttal time. [00:19:31] Speaker 00: Thank you. [00:19:35] Speaker 00: The NAMI. [00:19:38] Speaker 07: Good morning, Your Honors. [00:19:40] Speaker 07: May it please the Court. [00:19:42] Speaker 07: Ms. [00:19:42] Speaker 07: Bannister's appeal to this Court is not an opportunity for her to retry her case anew. [00:19:49] Speaker 05: She has the burden of showing... Can you just go directly to Rodriguez? [00:19:53] Speaker 05: I'm a little disturbed that you all didn't address it in your brief because it had come out in time for you to address it. [00:20:00] Speaker 05: But how do you think Rodriguez affects his case? [00:20:05] Speaker 07: Your Honor, well, as I believe Judge Hughes stated earlier, Rodriguez decided that the burden of proof for the deciding official at the agency, that the burden of proof is preponderance of the evidence. [00:20:21] Speaker 07: However, the standard of review at the Merit Systems Protection Board is substantial evidence. [00:20:27] Speaker 05: Sure, but the agency applied the wrong standard. [00:20:33] Speaker 05: You can go look at the decision letter I did, and the agency applied a substantial evidence standard. [00:20:39] Speaker 05: That's legal error. [00:20:44] Speaker 05: Why doesn't that mean the whole case has to be thrown out, and it has to start over? [00:20:50] Speaker 07: Well, there are several reasons, Your Honor. [00:20:52] Speaker 07: And I will get to that direct question in a moment. [00:20:55] Speaker 07: I also wanted to bring up the fact that Ms. [00:20:59] Speaker 07: Bannister never raised this argument [00:21:03] Speaker 07: to the administrative judge in the first instance. [00:21:07] Speaker 05: The precedent in the court... Well, that's because our Rodriguez case hadn't issued yet. [00:21:13] Speaker 05: And at least there was some... That's correct. [00:21:15] Speaker 05: There was some confusing dicta in a case from our court that suggested maybe it was okay for the VA to apply substantial evidence standard. [00:21:24] Speaker 05: And why would she have had to do that? [00:21:28] Speaker 05: Let's just move past that. [00:21:30] Speaker 05: I don't want to hear about her waiving something [00:21:32] Speaker 05: when you didn't even bother to argue this in your red brief to us either. [00:21:37] Speaker 05: Just to address the question, why isn't the VA's legal error in applying the wrong standard in its final decision sufficient for us to just vacate and order the whole thing sent back to the agency to start again? [00:21:50] Speaker 07: Several reasons, Your Honor. [00:21:54] Speaker 07: Well, first of all, Ms. [00:21:56] Speaker 07: The Rodriguez opinion came out on August 12th, and Ms. [00:21:59] Speaker 07: Bannister filed her opening brief on August 18th. [00:22:03] Speaker 05: I did it. [00:22:04] Speaker 05: I don't want to hear about waiver. [00:22:06] Speaker 05: I just said I don't want to hear about waiver. [00:22:08] Speaker 05: Address the merits of the question, please. [00:22:10] Speaker 07: Yes. [00:22:12] Speaker 07: So the deciding official's letter did state that substantial evidence supported the charge. [00:22:19] Speaker 07: However, it is clear that based on his testimony, the deciding official [00:22:25] Speaker 07: He didn't elaborate on what he thought was the standard of proof or what the substantial evidence meant to him, but his testimony was unambiguous that he reached a conclusion that Ms. [00:22:37] Speaker 07: Stanister engaged in the conduct alleged. [00:22:41] Speaker 07: His testimony clearly reflects that he considered the evidence to satisfy [00:22:46] Speaker 07: even the preponderance of the evidence standard. [00:22:49] Speaker 07: Now, preponderance of the evidence... Really? [00:22:50] Speaker 00: Does he say that? [00:22:51] Speaker 00: Can you show me? [00:22:52] Speaker 00: We're in his testimony. [00:22:53] Speaker 00: He says, even if the standards were preponderance, not substantial, I would have used the same... I would have reached the same result. [00:22:59] Speaker 00: Does he say that? [00:23:01] Speaker 07: He doesn't say that directly, no, Your Honor, but... Well, how does he say it indirectly? [00:23:08] Speaker 07: Yes. [00:23:09] Speaker 07: The definition of preponderance of the evidence is that... We know what the... We know the definition of preponderance of the evidence. [00:23:15] Speaker 04: Can you point us testimony of the deciding official at the board hearing that you are relying on? [00:23:23] Speaker 04: So, on page... Yes, go ahead. [00:23:26] Speaker 07: Sure. [00:23:27] Speaker 07: On page 1618, he discusses the evidence that he considered in reaching his decision. [00:23:37] Speaker 07: 1629 and 1630 of the appendix. [00:23:41] Speaker 07: He addresses the unique vulnerability of the veterans that present to the VA. [00:23:46] Speaker 04: Ms. [00:23:48] Speaker 04: Sinani, could you give me an actual particular page and line number that I can look at? [00:23:56] Speaker 07: Okay. [00:23:57] Speaker 07: I think the most direct testimony would be on page 1626, Your Honor. [00:24:05] Speaker 04: Okay. [00:24:08] Speaker 04: Can you find the line number and read it out loud for us? [00:24:12] Speaker 07: Yes. [00:24:15] Speaker 07: Just one moment while I get there, Your Honor. [00:24:25] Speaker 07: Beginning on line 15, the question is, did you come to the conclusion as to whether or not Ms. [00:24:33] Speaker 07: Fannister engaged in conduct on becoming? [00:24:36] Speaker 07: And his response is yes. [00:24:38] Speaker 07: and what was that conclusion and his responses that she did. [00:24:44] Speaker 07: There's no ambiguity here whether he truly determined as required under Section 714 that Ms. [00:24:57] Speaker 07: Bannister engaged in the conduct alleged. [00:25:02] Speaker 07: He also testified. [00:25:04] Speaker 00: Doesn't it matter whether, I mean, he reached that conclusion. [00:25:09] Speaker 00: Nobody's disputing that. [00:25:11] Speaker 00: But isn't it relevant that he reached that conclusion applying the substantial evidence rather than a preponderance of evidence standard? [00:25:19] Speaker 00: How does this dislodge that difference? [00:25:23] Speaker 00: And isn't that a distinction that we have to account for? [00:25:27] Speaker 07: In Rodriguez, Your Honor, the court identified one issue with using a substantial evidence as a standard of proof, and that is a scenario where the deciding officials did not believe that the misconduct had occurred or was unsure whether it had been proved, but believed that a reasonable person could have found that the misconduct took place. [00:25:50] Speaker 07: That is not what happened here. [00:25:52] Speaker 07: His testimony is clear that he determined, as required by 714A1, that Ms. [00:25:58] Speaker 07: Bannister engaged in the misconduct that's defined as discipline. [00:26:04] Speaker 07: In other portions of his testimony, which I will... I'm sorry to interrupt. [00:26:11] Speaker 00: This is Judge Prost again. [00:26:12] Speaker 00: Can you show me... Do you have a page site in Rodriguez? [00:26:16] Speaker 00: I just pulled it up in front of me that... [00:26:19] Speaker 00: I did go through it, and I didn't notice that. [00:26:22] Speaker 00: But what you're saying is that the deciding official clearly testified that it seemingly made a difference, whether it was preponderance or substantial. [00:26:33] Speaker 00: Is that what you're telling us? [00:26:36] Speaker 07: No, Your Honor. [00:26:37] Speaker 07: I was identifying an issue that the court addressed in Rodriguez with a deciding official relying on the substantial evidence as the burden of proof. [00:26:48] Speaker 07: And that would be where the evidence does not convince the deciding official that the misconduct occurred, but he concludes that, well, a reasonable person could find that a misconduct occurred. [00:27:00] Speaker 07: Therefore, the misconduct occurred. [00:27:02] Speaker 07: And I'm saying that that situation does not exist here. [00:27:08] Speaker 07: In other portions of his testimony, which we did not include in the appendix because the issue was not raised, [00:27:16] Speaker 07: He testified that he would have sustained the same disciplinary action based on specifications one and two individually and perhaps three and four as well. [00:27:29] Speaker 07: Certainly in his opinion, every specification individually warranted some sort of discipline and certainly specifications one and two alone would have warranted the discipline that he selected here. [00:27:43] Speaker 07: Where is that in the transcript? [00:27:47] Speaker 07: Your Honor, this would be page 1624 of our draft appendix, which we did not include in our joint appendix, so I can furnish it to the court today if the court would like it. [00:28:00] Speaker 07: And that's, again, this is because the issue of the agency using the wrong standard of proof was not raised at the Merit Systems Protection Board or in the opening brief. [00:28:13] Speaker 07: In Rodriguez, even though the petitioner there did not have the benefit of a decision from this court on the appropriate standard of proof, he still raised the issue at the MSTB level and therefore preserved it for appeal. [00:28:30] Speaker 07: And that did not happen here. [00:28:35] Speaker 04: Ms. [00:28:35] Speaker 04: Sinani, this is Judge Chen. [00:28:37] Speaker 04: What if we feel compelled in light of Rodriguez to do what Rodriguez [00:28:43] Speaker 04: Rodriguez's opinion did, which is to send this back and remand for further proceedings. [00:28:52] Speaker 04: How would you understand the mechanics of what that would look like? [00:28:57] Speaker 04: If we conclude the deciding official very clearly used the wrong standard of review, just as the deciding official and Rodriguez had, and we have to send this back for further proceedings, what happens next? [00:29:11] Speaker 07: And I believe that in Harrington versus Department of Veterans Affairs, which was a case decided in December 7th of 2020, I believe that in that case, the court remanded it back to the administrative judge or to the board and then opined that the board could remand it back to the agency. [00:29:36] Speaker 07: So other than that, I'm not... [00:29:40] Speaker 04: I believe that, you know, if... If the case were to get remanded back to the agency, that would mean that the original deciding official decision is vacated, right? [00:29:56] Speaker 07: Well, not necessarily. [00:29:58] Speaker 07: I think that the deciding official would have to reevaluate the evidence based on the new standard of proof and could very well reach the same decision. [00:30:08] Speaker 07: Here, we do think that this would be a harmless error. [00:30:11] Speaker 04: Well, that would require an act of replacing the first deciding official decision with a new second deciding official decision, right? [00:30:24] Speaker 07: I think so. [00:30:25] Speaker 04: And so that necessarily would require the, you know, the elimination of the first decision, a vacating of that. [00:30:37] Speaker 07: perhaps but replaced with a new decision which could very well have the same result. [00:30:43] Speaker 07: And in this case, we think that the evidence was so overwhelming that the administrative judge clearly determined even the more demanding, clear and convincing burden of proof. [00:30:55] Speaker 07: So even if there was error here, that would be a harmless error. [00:31:02] Speaker 04: But I guess in terms of harmless error, I guess the question is, [00:31:06] Speaker 04: Is the prejudice the fact that this particular person, Ms. [00:31:11] Speaker 04: Bannister, did not get the right person to apply the right standard review? [00:31:18] Speaker 04: It is true that the AJ very well may have found under an even heightened burden of proof, clear and convincing, that all of these charges there was [00:31:34] Speaker 04: a serious amount of evidence, a clear and convincing amount of evidence. [00:31:37] Speaker 04: But we don't have the correct person, the deciding official, making the same call under the correct standard of proof. [00:31:50] Speaker 04: And so maybe that's the prejudice, because who knows? [00:31:52] Speaker 04: Maybe the deciding official might have arrived at a different conclusion under the correct burden of proof, even though the AJ, under a different [00:32:01] Speaker 04: higher burden of proof found that, in fact, the conduct was unbecoming. [00:32:09] Speaker 04: Can you speak to that? [00:32:11] Speaker 04: Do you see how there's a mismatch there? [00:32:14] Speaker 07: I do see that, Your Honor. [00:32:15] Speaker 07: But as I stated, the deciding official testified that either one specification alone would have justified the same disciplinary action here. [00:32:27] Speaker 07: And he considered the reports of contact that were present [00:32:31] Speaker 07: With regard to specification one alone, for instance, there was corroborating evidence or corroborating testimony by two witnesses, including the veteran, the veteran's account to Dr. Kostarczyk. [00:32:48] Speaker 07: And the only evidence contrary to that was Ms. [00:32:54] Speaker 07: Banister's own statement, self-serving statement. [00:32:58] Speaker 05: So just... Sorry. [00:33:00] Speaker 05: This is Judge Hughes. [00:33:02] Speaker 05: Is there any testimony from the deciding official in the record that goes to the whistleblower defense and his view that he would have taken the same action despite the whistleblower disclosure? [00:33:20] Speaker 07: Well, he testified that he was not aware of her disclosures, and the administrative judge addresses that [00:33:29] Speaker 07: in her decision that he, you know, because of the COVID pandemic, he had received many, you know, statements and concerns regarding TCE. [00:33:42] Speaker 07: So any of her statements that he may have seen in the emails provided to him, they didn't send out to him. [00:33:48] Speaker 07: So he was the only reason that the administrative judge found knowledge here. [00:33:55] Speaker 07: She imputed the, based on the timing, [00:33:59] Speaker 07: She computed that knowledge and motive to the side of the patient. [00:34:05] Speaker 05: Sure, okay. [00:34:06] Speaker 05: But so there's no testimony from him that speaks directly to the clear and convincing evidence standard? [00:34:15] Speaker 07: Well, he testified that the decision that he made here with regards to her conduct was consistent with the prior decisions that he made with similar, for instance, [00:34:28] Speaker 07: involving similar conduct in the past. [00:34:31] Speaker 07: And he stated that this was basically during his tenure at the VA, which was starting from January 2015, which is, of course, before the clarification of Section 714. [00:34:47] Speaker 01: Counsel, this is Judge Crouse. [00:34:49] Speaker 01: I have one final question. [00:34:50] Speaker 01: Are we okay, Sheila? [00:34:51] Speaker 01: Sorry. [00:34:52] Speaker 01: Sorry. [00:34:52] Speaker 01: Can we pause for a second? [00:34:54] Speaker 01: We just lost Judge Hughes. [00:34:56] Speaker 01: Okay. [00:34:57] Speaker 01: Thank you. [00:34:58] Speaker 01: Let us know. [00:34:59] Speaker 01: One moment, please. [00:35:02] Speaker 01: Hi, Judge Hughes, can you hear me? [00:35:04] Speaker 01: Yeah, I'm back. [00:35:06] Speaker 01: OK, thank you. [00:35:07] Speaker 01: Sorry for the interruption. [00:35:08] Speaker 00: OK, this is Judge Prost. [00:35:11] Speaker 00: Unless my colleagues have anything else, I had one further question for the government, I guess two maybe. [00:35:17] Speaker 00: One is, do you happen to know whatever happened to Rodriguez? [00:35:22] Speaker 00: We said send it back to the AJ. [00:35:24] Speaker 00: Have you tracked whether the AJ did send it back to the agency or what happened? [00:35:30] Speaker 07: Unfortunately, Your Honor, I do not have personal knowledge of that. [00:35:34] Speaker 00: OK. [00:35:35] Speaker 00: And the other question I have, I guess, is this goes to Judge Yu's first point, which is now you're arguing to us waiver. [00:35:42] Speaker 00: Isn't that something you could have come in and moved to strike the gray brief because it's added stuff that it didn't preserve? [00:35:51] Speaker 00: I mean, you understand we're in a difficult position, never having heard until this morning Ward 1 from the government [00:35:59] Speaker 00: on its views on Rodriguez. [00:36:02] Speaker 00: Puts us in a bit of a difficult position, right? [00:36:06] Speaker 00: You understand that? [00:36:08] Speaker 07: Even in her reply brief, Ms. [00:36:10] Speaker 07: Spencer was not entirely clear what she was arguing with regard to Rodriguez. [00:36:15] Speaker 07: Her argument seemed to imply that the standard of review at the NSEB and the Ford Discord is preponderance of the evidence. [00:36:23] Speaker 00: On page one, in response to our argument, she specifically... Well, we've read it too, and even though it may not be a model of clarity, I think they're challenging the use of preponderance of evidence by the agency. [00:36:35] Speaker 00: I think that's the fairest reading, but that's just my view. [00:36:39] Speaker 00: Can I ask you one other question? [00:36:41] Speaker 00: On the point that I asked your friend about, about if we were to follow the path of Rodriguez, [00:36:48] Speaker 00: And it's got to go back to the deciding official. [00:36:52] Speaker 00: Just bear with me now. [00:36:53] Speaker 00: And he's got to do a do-over. [00:36:56] Speaker 00: What happens in the interim? [00:36:58] Speaker 00: Do you know of any cases in which we've said, well, the decision that we think has an error stays in effect until [00:37:10] Speaker 00: the new decision by the deciding official. [00:37:12] Speaker 00: This may not make that much difference here, but it might make a difference in a lot of other cases where there's potential for a lot of back pay just for the interim period. [00:37:21] Speaker 00: Does the government have a position on that? [00:37:25] Speaker 07: Your Honor, due to the recency of 714, I've reviewed every decision that the court has, you know, issues with respect to 714, and I have not seen any decision that addresses that question. [00:37:40] Speaker 07: So I'm not aware. [00:37:41] Speaker 00: Okay. [00:37:45] Speaker 00: All right. [00:37:46] Speaker 00: Thank you. [00:37:47] Speaker 00: Anything further from my colleagues? [00:37:51] Speaker 00: Hearing nothing, Mr. Webb, we'll restore some rebuttal time if you don't have enough. [00:37:55] Speaker 00: We'll give you five minutes on rebuttal if you need it. [00:38:05] Speaker 02: Mr. Webb? [00:38:08] Speaker 02: Thank you, Your Honor. [00:38:09] Speaker 02: If you don't mind, I wanted to quickly address the appendix and the deciding official's testimony. [00:38:16] Speaker 02: It appeared that the discussion was around whether or not it would make a difference to the deciding official what the burden of proof was, if it's preponderance of the evidence versus substantial evidence. [00:38:27] Speaker 02: As I'm looking at the same testimony around page 624 and going back to 622, the discussion does not appear to be around the burden of proof. [00:38:38] Speaker 02: It appears to be around [00:38:40] Speaker 02: It questions the deciding official whether he would have made the same decision, let's say, if it was only specification one and two, but they did not bring specification three and four. [00:38:51] Speaker 02: So the burden of proof is not specifically discussed on these pages. [00:38:57] Speaker 02: And so I just wanted to clarify that as the discussion was around the burden of proof, not specifically if some of the charges had not been brought [00:39:09] Speaker 02: which I think is pretty substantial. [00:39:11] Speaker 02: It makes a difference in terms of a decision-maker's thinking what degree, what level of proof is required. [00:39:20] Speaker 02: In addition, this is Judge Hughes. [00:39:24] Speaker 05: Can I just interrupt you a minute? [00:39:26] Speaker 05: I didn't see anything on this point, but you know the record better than I do, hopefully. [00:39:31] Speaker 05: The agent made a finding on the whistleblower defense that the agency approved its case by clear and convincing evidence. [00:39:37] Speaker 05: and particularly that it had a really strong case for the suspension. [00:39:42] Speaker 05: But he doesn't really cite anything. [00:39:45] Speaker 05: Are you aware of any testimony in the record from any agency officials saying that would support that clear and convincing evidence standard? [00:39:56] Speaker 05: Or is it just the AJ's view of the testimony generally given? [00:40:00] Speaker 02: It is the AJ's, to my opinion, it is the AJ's view of the testimony provided. [00:40:06] Speaker 02: There is an exchange on 1660 and thereabouts, which I think is the most insight into the deciding officials, what he's thinking, how he came to the decision, and I believe that's the most pertinent expert. [00:40:23] Speaker 02: He did not go into the clear and convincing burden of proof there. [00:40:26] Speaker 00: What was the site you just gave us to that last point you were making? [00:40:29] Speaker 02: I thought you said 1660. [00:40:32] Speaker 02: Appendix 1660. [00:40:33] Speaker 03: I don't have a 1660. [00:40:38] Speaker 03: No, our appendix goes up to 1649. [00:40:41] Speaker 02: Oh, my apologies. [00:41:18] Speaker 02: I have it, I'm sorry, I have it paged earlier. [00:41:23] Speaker 02: It's at 1644. [00:41:24] Speaker 02: 1636, 1644 is the deciding official's testimony where I believe both myself and agency council at the time were questioning him about his decision making. [00:41:48] Speaker 05: Is there any specific line numbers you want to point us to on those cases? [00:41:59] Speaker 02: Yes, Your Honor. [00:41:59] Speaker 02: What I initially was thinking was... [00:42:32] Speaker 02: It's, I think, and this is consistent with what agency counsel said. [00:42:38] Speaker 02: On line number five, the deciding official says, in discussing this case or whether I'm consistent, this is my decision is consistent with other cases, other, and then he just kind of goes on. [00:42:53] Speaker 05: So you view that as his response on his decision here was consistent with how he would have treated [00:43:01] Speaker 05: non-wiffle blowers. [00:43:03] Speaker 02: That is correct. [00:43:04] Speaker 05: But it doesn't go specifically to the standard. [00:43:09] Speaker 02: It does not. [00:43:09] Speaker 02: It was more of a nebulous testimony. [00:43:15] Speaker 05: Although at least the AJ found it sufficient to meet a clear and convincing burden. [00:43:22] Speaker 05: I mean, I know they didn't specifically cite that. [00:43:24] Speaker 05: But if that's the portion of the testimony that relates to the issue and the AJ found [00:43:29] Speaker 05: clear and convincing evidence, and we have to assume that that's at least part of what the testimony he was relying on was. [00:43:37] Speaker 05: Let me just lay my cards on the table. [00:43:40] Speaker 05: I think this is very difficult here because we have an initial agency decision that's clearly error. [00:43:47] Speaker 05: It uses the wrong standard. [00:43:50] Speaker 05: But we also have this particular, you know, quirk in this case that there's a whistleblower defense where [00:43:59] Speaker 05: whatever the agency found and whether that might have infected it, the AJ made an independent finding that there was clear and convincing evidence supporting the suspension. [00:44:11] Speaker 05: And it seems to me that if we assume that that finding is correct, and I know you dispute that, but we assume that's correct, that that seems to cure the error when in a regular case the error might not be cured. [00:44:30] Speaker 02: That is correct, Your Honor, but I also believe that because it goes back to the deciding official, we don't know the deciding official's thoughts. [00:44:38] Speaker 05: So your view is that even if the AJ found that the agency met its burden under a sufficiently high standard, the agency itself might not have found this in the first sentence, and therefore, that doesn't cure the error. [00:44:54] Speaker 02: That is correct, Your Honor. [00:44:56] Speaker 05: OK. [00:44:57] Speaker 00: Fair enough. [00:44:59] Speaker 00: Anything further? [00:45:01] Speaker 00: If not, thank both sides and the case is submitted. [00:45:05] Speaker 00: That concludes our proceeding for this morning. [00:45:07] Speaker 00: Thank you. [00:45:12] Speaker 01: The honorable court is adjourned at 10 a.m.