[00:00:00] Speaker 05:
OK, the next appeal for argument is appeal number 21-2001, Eddenfield versus Department of Veterans Affairs.

[00:00:12] Speaker 01:
May it please the court.

[00:00:13] Speaker 01:
Nate Eddenfield on behalf of Dr. Mark Eddenfield, who is also in the courtroom with me here today.

[00:00:19] Speaker 01:
This appeal arises out of Dr. Eddenfield's disclosure that the agency facility where he works was violating the agency handbook.

[00:00:29] Speaker 01:
by allowing nurse practitioners and physician assistants, who are also known as mid-level providers, to obtain informed consent from patients for endoscopies and colonoscopies.

[00:00:43] Speaker 02:
Before we get into the merits of the case, I want to just clarify something, if you would help me.

[00:00:50] Speaker 02:
The regulation, 38 CFR 1732, that's cited at page 12 of the

[00:00:59] Speaker 02:
J.A.'

[00:00:59] Speaker 02:
's opinion, I take it was not in effect in 2016.

[00:01:06] Speaker 02:
The handbook, I take it, which had similar language to what now appears in the regulation, was in effect.

[00:01:12] Speaker 02:
But the regulation doesn't change, if my research is correct, until 2020.

[00:01:18] Speaker 02:
So to the extent that the J.A.

[00:01:20] Speaker 02:
is relying on that regulation, that reliance is really not appropriate, is it?

[00:01:25] Speaker 01:
You are absolutely correct.

[00:01:26] Speaker 01:
So the language in the regulation itself changed.

[00:01:32] Speaker 01:
I'm not sure of the year, but it was after this occurred.

[00:01:36] Speaker 01:
And the regulation that Dr. Eddenfield relied upon was different.

[00:01:41] Speaker 01:
It contained slightly different language.

[00:01:43] Speaker 01:
So you are correct that that is an error that the administrative judge made.

[00:01:47] Speaker 02:
So your reliance is entirely on Dr. Eddenfield's reliance on the handbook, so I'm on the regulation.

[00:01:54] Speaker 02:
So as I read the pre-existing regulation, it certainly wasn't nearly as clear as you contend this regulation is.

[00:02:05] Speaker 01:
So he relied upon three things, three documents.

[00:02:11] Speaker 01:
One was the regulation.

[00:02:12] Speaker 01:
One was the handbook.

[00:02:13] Speaker 01:
And one was the National Center for Ethics in Health Care fact sheet that they had published.

[00:02:17] Speaker 01:
Right.

[00:02:18] Speaker 02:
I'm aware of the fact sheet.

[00:02:19] Speaker 02:
That's Dr. Berkowitz's statements during that fact sheet, right?

[00:02:23] Speaker 02:
During the telephone conference.

[00:02:26] Speaker 01:
So those are two different things, actually.

[00:02:28] Speaker 01:
Oh, OK.

[00:02:28] Speaker 01:
And the administrative judge actually mixed those up as well.

[00:02:31] Speaker 01:
So he relied upon the fact sheet.

[00:02:34] Speaker 01:
And there was also a teleconference transcript that was introduced as well.

[00:02:37] Speaker 01:
And the teleconference transcript, he didn't rely upon it, but it was introduced to show

[00:02:41] Speaker 01:
that the agency had the same view about the reasonableness, or the same view as Dr. Eddenfield about the interpretation of the handbook, and at some point obviously changed it.

[00:02:53] Speaker 02:
All right, but to the extent that he's relying on the 2016 version of the regulation, what is it in that version that you would point us to that would be supportive of his position?

[00:03:05] Speaker 01:
Sure, let me just get to it.

[00:03:10] Speaker 01:
So that version of the regulation says the practitioner who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment.

[00:03:20] Speaker 01:
So under that language, the practitioner has to not only be a person who's authorized to perform the procedure, but actually be the person, the practitioner who has the primary responsibility for that particular patient.

[00:03:36] Speaker 02:
And this is in section C.

[00:03:39] Speaker 02:
of 1732.

[00:03:41] Speaker 01:
Correct, Your Honor.

[00:03:42] Speaker 01:
It's 38 CFR 1732 subsection C. I have the dates here.

[00:03:49] Speaker 01:
It was effective August 7, 2009 to May 26, 2020.

[00:03:54] Speaker 01:
Okay.

[00:03:56] Speaker 01:
Correct.

[00:03:59] Speaker 03:
Let me ask you this.

[00:04:01] Speaker 03:
We can look at the handbook provision, and it seems like you have really good arguments that the handbook provision supports your client's reading of it and disclosure of it.

[00:04:13] Speaker 03:
But what do we do when we find that the AJ has just made a factual finding that even despite this language, it actually wasn't the VA policy and it was unreasonable for your client to think it was the VA policy?

[00:04:26] Speaker 03:
So don't we still have to judge that for substantial evidence?

[00:04:30] Speaker 03:
And at least we have some testimony from one of the doctors, I forget which one it is now, that says,

[00:04:42] Speaker 03:
You know, he goes through and says, well, yeah, the people that are part of the treatment team can do the disclosure.

[00:04:48] Speaker 03:
He's aware of other people, other nurse practitioners and other VA hospitals that actually even perform endoscopies.

[00:04:56] Speaker 03:
And so.

[00:04:57] Speaker 03:
I'm struggling with this because in one sense, if we're looking at the language of the regulation or the handbook that was later incorporated in the regulation, then it seems you're absolutely right.

[00:05:09] Speaker 03:
I mean, the most natural reading of that limits the informed consent to the people performing

[00:05:17] Speaker 03:
the procedure or providing the treatment.

[00:05:21] Speaker 03:
And the VA's reading that providing treatment means the treatment team for the procedure just doesn't seem a natural reading of that.

[00:05:29] Speaker 03:
Yet the AJ, I guess, somehow said, well, throwing that all out, or I guess not throwing it out, but even reading that in context, that's not really what goes on here, and he should have known that's not what goes on here, and here's why he was unreasonable.

[00:05:45] Speaker 03:
And then we have to search through and see if there's

[00:05:47] Speaker 03:
record evidence for that or not?

[00:05:50] Speaker 03:
Are you, I mean, I'll ask this to the government obviously, but are you aware, my real problem with that is, I don't think there's any evidence from anybody that says his view is unreasonable.

[00:06:01] Speaker 03:
It all seems to be that, oh, our view is X. Are you aware of anything where we could actually say, here's substantial evidence for the position that his view is unreasonable?

[00:06:16] Speaker 01:
Excuse me, Your Honor.

[00:06:20] Speaker 01:
His view is unreasonable?

[00:06:21] Speaker 01:
OK.

[00:06:22] Speaker 01:
So to sort of unpackage that a little bit, I think the problem with the administrative judge's decision was that she relied upon, she essentially said, OK, this is the agency's interpretation now.

[00:06:37] Speaker 01:
Dr. Eddenfield's disclosure does not comport with that interpretation that they've taken now.

[00:06:45] Speaker 01:
The problem with that was it was never provided to him.

[00:06:48] Speaker 03:
So he... So I get that.

[00:06:50] Speaker 03:
That's why I think you have good arguments on the language of the regulation.

[00:06:54] Speaker 03:
But what I'm getting at, and I know my question was really long, but let's just assume the AJ made a factual finding that despite the language of the manual,

[00:07:05] Speaker 03:
that that actually wasn't the VA's policy, and the VA's policy was that nurse practitioners could give informed consent because they were part of the treatment team, and that any view to that, contrary to that, was unreasonable.

[00:07:22] Speaker 03:
Let's assume that's a factual finding.

[00:07:23] Speaker 03:
I mean, whether it's a reasonable belief is a factual finding.

[00:07:26] Speaker 03:
So we still have to then go look and see whether there are substantial evidence for that view.

[00:07:32] Speaker 03:
And I'm just wondering what your view of the evidence is.

[00:07:35] Speaker 03:
Because there's certainly evidence that that's what VA thinks.

[00:07:41] Speaker 03:
But it doesn't seem to me to go transform from, oh, VA thinks this is what can happen to VA thinks any other view is unreasonable.

[00:07:53] Speaker 01:
Yeah, so if I understand your question correctly,

[00:07:57] Speaker 01:
I think the answer is, until he received the email from Ms.

[00:08:03] Speaker 01:
Hagan that morning, the mid-level providers that he supervised, at least in the pre-op clinic, were not obtaining informed consent.

[00:08:12] Speaker 01:
This was the first time he learned that they were going to begin obtaining informed consent.

[00:08:16] Speaker 01:
So he, of course, thought, well, okay.

[00:08:18] Speaker 01:
since they're not getting informed consent, they're comporting with the agency policy and the agency documents that they put out.

[00:08:25] Speaker 01:
So he only became aware that they started to do this afterwards when he received that email.

[00:08:32] Speaker 03:
And it was... Well, I get that too.

[00:08:34] Speaker 03:
But I mean, his subjective belief isn't the standard, right?

[00:08:37] Speaker 03:
It's an objective belief.

[00:08:38] Speaker 03:
What a reasonable person in these circumstances would have believed if informed of the facts.

[00:08:45] Speaker 03:
Look, I think you're maybe not hearing what my question is.

[00:08:50] Speaker 03:
Is there any evidence to support a factual conclusion that his position was unreasonable?

[00:08:58] Speaker 03:
Is there anybody from the VA that said, your position is unreasonable as opposed to, we just think you're wrong?

[00:09:07] Speaker 01:
No, Your Honor.

[00:09:08] Speaker 01:
Not that I can recall.

[00:09:10] Speaker 01:
There was no record evidence that someone said, no, your position is unreasonable.

[00:09:15] Speaker 01:
It was just simply they introduced evidence to say, well, this is how we interpret it.

[00:09:19] Speaker 01:
And they gave their reasoning.

[00:09:26] Speaker 01:
But of course, it didn't comport with the documents that the National Center for Ethics in Health Care had previously published.

[00:09:31] Speaker 05:
And in fact, that's my understanding of your argument is

[00:09:36] Speaker 05:
Regardless of the fact that VA may have opined that it's appropriate for these mid-levels to do this informed consent process, just because that's their policy and their interpretation, that doesn't take away from the very strong reasonableness of your plain reading view of the handbook, the regulation, the fact sheet, et cetera.

[00:10:02] Speaker 05:
Yes.

[00:10:03] Speaker 05:
Yes, Your Honor.

[00:10:05] Speaker 03:
Your position doesn't even have to be correct.

[00:10:07] Speaker 03:
I mean, the VA could actually be correct that nurse practitioners can give informed consent for these procedures, right?

[00:10:16] Speaker 01:
Yes.

[00:10:16] Speaker 01:
The standard is just a reasonable view.

[00:10:19] Speaker 01:
So he just has to have a reasonable basis to believe that there was a violation of law, rule, or regulation.

[00:10:24] Speaker 03:
So if we agree with you, then presumably this gets sent back.

[00:10:29] Speaker 03:
And then I don't know.

[00:10:31] Speaker 03:
read through every last piece of the record, but the AJ will have to discuss whether there are personnel actions, whether there are contributing factors.

[00:10:45] Speaker 03:
You know, Paul, that's about whether the VA can meet a clear and convincing burden that it would have taken that action otherwise.

[00:10:53] Speaker 03:
Is that right?

[00:10:53] Speaker 01:
That's exactly right, Your Honor.

[00:10:55] Speaker 01:
Since she only reached that first factor, it would need to be sent back for factual findings on the second two prongs.

[00:11:03] Speaker 01:
their convincing standard for the agencies defense uh... so uh... remind me again what's the ultimate rent uh... remedy doctor infield is seeking here i believe it's no longer employed with uh... it but he is still employed there is still employed there he's he was uh... he was not provided a pay increase in his twenty eighteen pay panel so he's he's seeking uh...

[00:11:31] Speaker 01:
He's seeking corrective action to receive that pay increase that he should have received.

[00:11:37] Speaker 02:
Is it your view, I take it it is, but walk me through this, that the statute governs statements made in reasonable belief that the evidence of violation of any law, rule, or regulation?

[00:11:51] Speaker 02:
Going back to my initial question.

[00:11:53] Speaker 02:
Setting aside the question of whether there was a violation of the pre-2020 regulation, do you think that the alleged violation of the handbook constitutes a violation of law, rule, or regulation?

[00:12:09] Speaker 02:
And if so, do you have any support for that proposition?

[00:12:12] Speaker 01:
Yes, Your Honor.

[00:12:13] Speaker 01:
I do believe it constitutes a violation.

[00:12:17] Speaker 01:
For two reasons.

[00:12:20] Speaker 01:
The handbook itself is interpreting the regulation.

[00:12:23] Speaker 01:
And I think under the plain language of the Whistleblower Protection Act, it's a rather liberal interpretation, it seems to me.

[00:12:30] Speaker 02:
And reading the pre-2020 regulation, the handbook seems to me to be elaborating on it pretty substantially.

[00:12:38] Speaker 01:
Sure.

[00:12:39] Speaker 01:
Sure, I'd say it does expand upon it.

[00:12:41] Speaker 02:
But I guess my real question is,

[00:12:45] Speaker 02:
Can you point us to any case in which this court, or for that matter the MSPB, has said a violation of an agency handbook, sort of informal guidance, if you will, falls within this category of law, rule, or regulation as set forth in this statute?

[00:13:06] Speaker 01:
Sure.

[00:13:07] Speaker 01:
The Drake case, which I cited in our briefs, it's out of this court.

[00:13:14] Speaker 01:
The court found it was a violation of a, I believe it was an agency handbook.

[00:13:22] Speaker 01:
Now I will say in the Drake case, the court said the parties agree that this is a violation of law or regulation based upon the handbook.

[00:13:32] Speaker 01:
And then went on to do the analysis based upon that assumption.

[00:13:37] Speaker 01:
So presumably the court believes that... Is that the USAID case?

[00:13:42] Speaker 01:
That is, I could get this site for you.

[00:13:45] Speaker 01:
Yeah.

[00:13:47] Speaker 03:
OK.

[00:13:47] Speaker 03:
That's OK.

[00:13:49] Speaker 03:
I'm intimately sorry about that.

[00:13:51] Speaker 01:
It was the case where the individual was overseas, and he believed that there was alcohol.

[00:13:58] Speaker 03:
Yeah, he reported the excessive use of alcohol.

[00:14:01] Speaker 01:
Yeah, it's the Street V Agency for International Development, 543 F3rd.

[00:14:05] Speaker 03:
I mean, I'm going to follow up on Judge Bison's question because this is actually interesting to me because I'm not sure that we actually have a result.

[00:14:17] Speaker 03:
I'll ask the government about this, too, about whether a handbook is a law, rule, or regulation.

[00:14:21] Speaker 03:
I think it's often treated as a law, rule, or regulation.

[00:14:26] Speaker 03:
But as you say, in that case, it wasn't really a dispute.

[00:14:29] Speaker 03:
Did the government dispute it below that the handbook was a law-roller regulation here?

[00:14:34] Speaker 01:
The government did, yes.

[00:14:35] Speaker 01:
The government made that argument.

[00:14:37] Speaker 03:
What did the OJ say?

[00:14:39] Speaker 01:
So in the jurisdictional determination, she found that it was, I have to pull up that exact language, but she discusses it there.

[00:14:50] Speaker 01:
I don't believe it was discussed in the ultimate decision.

[00:14:54] Speaker 03:
Well, probably because it wasn't necessary.

[00:14:56] Speaker 03:
She didn't think it was a reasonable belief that it didn't matter.

[00:15:01] Speaker 03:
So I guess maybe the government will re-raise that and it'll come back to us.

[00:15:05] Speaker 02:
Well, the NJ seemed to be under the impression that the

[00:15:09] Speaker 02:
current regulation was in place at the time of the events in this case.

[00:15:15] Speaker 02:
At least the way the opinion was written, that certainly seems to be what her analysis was, saying that his interpretation of the regulation was contrary to its plain language.

[00:15:26] Speaker 02:
Well, the regulation didn't exist in 2016 in this form.

[00:15:31] Speaker 01:
Correct, yes.

[00:15:32] Speaker 01:
The regulation was amended.

[00:15:33] Speaker 01:
So it contained language concerning informed consent.

[00:15:36] Speaker 01:
And like I said, it was somewhat more restrictive

[00:15:39] Speaker 02:
I can see why you would say that, but it didn't seem to me on reading the pre-2020 that it was necessarily so crystal clear.

[00:15:52] Speaker 02:
Go ahead.

[00:15:52] Speaker 01:
Yeah, sure.

[00:15:54] Speaker 01:
My reading of that one is that it still has to be someone who's authorized to perform the procedure, but it also has to be the person who has primary responsibility for that particular patient.

[00:16:04] Speaker 01:
And I think the handbook expands upon that.

[00:16:06] Speaker 01:
Well, OK, if one gastroenterologist is performing this procedure and running the scope down, under the handbook language, another gastroenterologist who has a scope of practice allowing, permitting, doing that procedure could also gain informed consent.

[00:16:24] Speaker 05:
Your time has expired.

[00:16:25] Speaker 05:
In fact, you're way over.

[00:16:26] Speaker 05:
We'll give you a few minutes for rebuttal.

[00:16:28] Speaker 05:
OK, thank you.

[00:16:30] Speaker 06:
May it please the court, for an employee's belief to be a protective disclosure, the employee's belief must have a reasonable basis in fact.

[00:16:40] Speaker 03:
So let's just look at the manual provision.

[00:16:42] Speaker 03:
If we think that the manual provision is at least susceptible to a reading that Dr. Edmondson said, that his is a reasonable reading.

[00:16:53] Speaker 03:
Because we can look at the plain language of the regulation.

[00:16:56] Speaker 03:
Don't you lose?

[00:16:58] Speaker 06:
No, we do not lose, because the question here... Why not?

[00:17:02] Speaker 03:
If there's two reasonable readings, then his is reasonable, even if you have another reasonable reading.

[00:17:08] Speaker 03:
Don't you have to prove that his reading is unreasonable?

[00:17:11] Speaker 06:
No, what we have to prove, the statute tells us and tells the board what facts to look at.

[00:17:19] Speaker 06:
And the language is, quote, the essential facts known to

[00:17:23] Speaker 06:
and readily ascertainable to the employee.

[00:17:28] Speaker 06:
Now this case, I would submit, it's an unusual case.

[00:17:33] Speaker 03:
I'm not going to make you concede anything, but you can see how we can look at this handbook provision that was later codified in a regulation and say, well, his reading seems a pretty natural one of this.

[00:17:48] Speaker 03:
It talks about in order to give informed consent, you have to be the person that's doing the procedure or giving the treatment.

[00:17:59] Speaker 03:
And those are two different things, not that being part of the treatment team.

[00:18:05] Speaker 03:
I mean, I understand maybe your reading is reasonable, but I don't see how his is not reasonable.

[00:18:13] Speaker 06:
Again, the test is the essential facts known to and readily ascertainable to the employee.

[00:18:20] Speaker 03:
OK.

[00:18:20] Speaker 03:
Those are the facts.

[00:18:21] Speaker 03:
Is this getting to what?

[00:18:22] Speaker 03:
I'm sorry.

[00:18:22] Speaker 03:
I keep interrupting you, but is this getting to what I was suggesting to your friend that

[00:18:29] Speaker 03:
Despite what seems to be a natural reading of this regulation or the handbook provision, everybody in the VA knew that the policy was actually what you say it is.

[00:18:39] Speaker 06:
That's not what we're contending.

[00:18:41] Speaker 06:
What we're contending is, again, the test, essential facts known to readily ascertainable.

[00:18:49] Speaker 06:
Dr. Ennenfield went to the meeting.

[00:18:52] Speaker 06:
He wanted to hear what they had to say.

[00:18:55] Speaker 06:
the administrative judge heard all the testimony and credited the testimony of Ms.

[00:19:01] Speaker 06:
Hagan as to what was said at that meeting.

[00:19:05] Speaker 03:
Yeah, but here's the problem for you.

[00:19:07] Speaker 03:
It's not just that he knew the VA's position was X and that it thought X was reasonable.

[00:19:15] Speaker 03:
He can still, if he still has a reasonable belief, the position Y is reasonable having protected disclosure, right?

[00:19:22] Speaker 06:
No, because in this case... That's the language.

[00:19:25] Speaker 03:
If he has a reasonable belief, then he has a protected disclosure, even if he's wrong.

[00:19:31] Speaker 06:
I would agree.

[00:19:32] Speaker 06:
Okay, but it's not reasonable.

[00:19:34] Speaker 06:
And that's what the board found in this case.

[00:19:36] Speaker 03:
Well, that's what I'm getting at.

[00:19:37] Speaker 03:
Why isn't it reasonable?

[00:19:39] Speaker 06:
OK, it's not reasonable in this particular case, because the board credited the testimony of Ms.

[00:19:46] Speaker 06:
Hagan.

[00:19:46] Speaker 06:
He went to the meeting.

[00:19:48] Speaker 03:
Did Ms.

[00:19:49] Speaker 03:
Hagan say that his view was unreasonable?

[00:19:51] Speaker 04:
No.

[00:19:52] Speaker 03:
So again, aren't you just arguing about the VA thought this physician was right, and so

[00:19:59] Speaker 03:
By definition his position is wrong, but you have to go a step further Don't you improve that his position was unreasonable because that's the fact finding the board made Can you point me to any evidence in the record where anybody?

[00:20:13] Speaker 03:
Said his position was unreasonable.

[00:20:15] Speaker 06:
Okay, the court could look at page.

[00:20:17] Speaker 06:
This is the transcript of dr. Dominic's

[00:20:20] Speaker 06:
Okay, he's the expert in gastroenterology.

[00:20:24] Speaker 06:
Okay, and he is one of the... Do you have a site for me?

[00:20:28] Speaker 06:
Yes, I do.

[00:20:29] Speaker 06:
Okay.

[00:20:29] Speaker 06:
The site for his testimony where he says specifically it's unreasonable.

[00:20:33] Speaker 06:
This would be appendix page 276.

[00:20:36] Speaker 06:
But the point I want to make here... 276.

[00:20:39] Speaker 04:
Excuse me.

[00:20:39] Speaker 04:
Okay, so what does he say at 276?

[00:20:45] Speaker 06:
At page 276, he's being asked specifically about the transcript.

[00:20:49] Speaker 06:
This is the transcript from 2009.

[00:20:51] Speaker 06:
And in that transcript, there's statements made that would support

[00:20:59] Speaker 06:
Dr. Endenfield's point of view.

[00:21:02] Speaker 06:
And he's asked specifically whether it's unreasonable, and he says it's unreasonable.

[00:21:07] Speaker 05:
He doesn't explain why he thinks it's unreasonable.

[00:21:09] Speaker 05:
Well, he did earlier.

[00:21:10] Speaker 06:
He did earlier explain in his testimony.

[00:21:13] Speaker 06:
He explained, and the board credited all of this testimony.

[00:21:17] Speaker 06:
There is ample substantial evidence.

[00:21:19] Speaker 05:
That is crediting his testimony as to why he thinks the other side's interpretation is wrong.

[00:21:26] Speaker 05:
But isn't it a question of law, just

[00:21:29] Speaker 05:
doing a reading of this regulation, a reading of this handbook.

[00:21:34] Speaker 06:
No, it's a factual question.

[00:21:36] Speaker 06:
Again, what the statute says, it has to have a reasonable belief and has to be based on the essential facts known to or readily ascertainable.

[00:21:46] Speaker 05:
One of those readily available facts is the regulation itself.

[00:21:49] Speaker 05:
And the regulation, at least the one that was in effect at the time, seemed fairly clear on what it expects of who is going to be a qualified practitioner to seek the informed consent of a patient.

[00:22:02] Speaker 06:
The regulation, as the board found, was open to interpretation.

[00:22:06] Speaker 06:
And the board credited the testimony of Dr. Dominics, who's the VA's national subject matter expert in gastroenterology.

[00:22:15] Speaker 06:
He explains what these mid-levels say.

[00:22:17] Speaker 05:
Did you understand what my concern is about turning an interpretation of a regulation into a fact question?

[00:22:24] Speaker 05:
I mean, obviously, that appears to be what your position is.

[00:22:28] Speaker 05:
And I don't know, as a court, I can't help but feel like pushing back on that notion.

[00:22:34] Speaker 06:
I understand your concern, but I would point you to the language in the statute.

[00:22:38] Speaker 06:
The language in the statute is essential facts known to and readily obtainable.

[00:22:44] Speaker 02:
The only essential facts that I can see that he had after he made his first initial disclosure, even if you accept the notion that you have to view what happened in the immediate aftermath of that

[00:22:55] Speaker 02:
of that disclosure as pertinent to the reasonableness of the statement are that he learned that the Medical Evaluation Board or whatever it was and Dr. Hecht had come to a contrary conclusion.

[00:23:09] Speaker 02:
I don't know that there were any other facts that were presented to him during that initial period when he made his disclosure.

[00:23:19] Speaker 02:
that bear on the reasonableness of this disclosure.

[00:23:22] Speaker 02:
Do you have anything else besides those, in other words, that the agencies basically say, we've looked at this, we disagree with you?

[00:23:29] Speaker 06:
The administrative judge found.

[00:23:32] Speaker 02:
Never mind what the administrative judge did.

[00:23:34] Speaker 02:
Is there any other evidence out there that would affect the reasonableness of this view?

[00:23:41] Speaker 06:
Yes, because as I said, the administrative judge credited Ms.

[00:23:46] Speaker 06:
Hagan's testimony concerning what he was told.

[00:23:49] Speaker 02:
But that's all having to do with what happened at the meeting that happened on, what, June 26, or whatever it was.

[00:23:54] Speaker 02:
June 28.

[00:23:55] Speaker 02:
28.

[00:23:55] Speaker 02:
That involved an explanation by the doctors of what the internal assessment of his position was, and they rejected it.

[00:24:08] Speaker 02:
Fine.

[00:24:09] Speaker 02:
That's the evidence.

[00:24:10] Speaker 02:
But I didn't think there's any other evidence out there that I could see in any event that would bear on the reasonableness of this position.

[00:24:18] Speaker 06:
I think what you're missing is the findings that were made, that at the meeting he was told that the National Center for Ethics... I know that.

[00:24:27] Speaker 02:
That's encompassed within what I was describing.

[00:24:30] Speaker 02:
In other words, the VA had taken a look at this and they had concluded that his interpretation of the regulation, the handbook in this case, was wrong.

[00:24:39] Speaker 02:
That all occurred on June, what, 28th, right?

[00:24:42] Speaker 02:
At the meeting, yes.

[00:24:43] Speaker 02:
Right.

[00:24:44] Speaker 02:
Other than that, is there any other evidence that you can point to that impugns the really reasonableness of this interpretation?

[00:24:55] Speaker 06:
I think perhaps what you're missing is that this is an internal VA handbook.

[00:25:02] Speaker 06:
and that it's written by the National Center for Ethics in Health Care.

[00:25:06] Speaker 06:
They are responsible for enforcing it.

[00:25:08] Speaker 02:
So you're saying, in effect, they have revised the handbook?

[00:25:11] Speaker 06:
No.

[00:25:12] Speaker 06:
I'm saying they had applied it to the specific circumstances in question.

[00:25:17] Speaker 02:
OK.

[00:25:18] Speaker 02:
Now, the AJ said, after reading the language which she attributed to the regulation, but in fact we now know was the handbook,

[00:25:27] Speaker 02:
A plain reading of this regulation does not limit it obtaining informed consent to the physician performing the procedure, as the appellant alleges.

[00:25:37] Speaker 02:
That strikes me as a flat-out legal conclusion.

[00:25:41] Speaker 02:
It's not factual.

[00:25:42] Speaker 02:
It's legal.

[00:25:44] Speaker 02:
You would agree with that?

[00:25:47] Speaker 02:
Well, whether you agree with it or not, it's true.

[00:25:51] Speaker 06:
Yes, but I think it's not the ultimate issue.

[00:25:53] Speaker 02:
No, no, but here's my question.

[00:25:56] Speaker 02:
I think that she's just dead wrong in concluding that that is the plain meaning of that regulation.

[00:26:04] Speaker 02:
Doesn't that undermine her entire assessment of the case?

[00:26:09] Speaker 02:
Because the predicate for her conclusion that he was unreasonable is that a plain meaning of that language would lead one to conclude that the consents proposed by the VA were permissible.

[00:26:23] Speaker 06:
What the AJ said was the plain meaning.

[00:26:28] Speaker 06:
His interpretation is you have to be inserting the scope into the patient.

[00:26:33] Speaker 06:
That's plainly wrong, because the handbook and also the regulation allows for mid-levels to come within the definition of practitioner.

[00:26:46] Speaker 03:
If they conform the treatment or the procedure,

[00:26:49] Speaker 03:
There may be other treatments or procedures out there that mid-levels can perform, but at least at the time that this was happening, and at least as I understand it, at this hospital, they weren't allowed to perform a colonoscopy.

[00:27:05] Speaker 06:
I agree.

[00:27:06] Speaker 06:
But the language is, provide the treatment.

[00:27:09] Speaker 02:
Provide the treatment.

[00:27:10] Speaker 02:
OK, suppose the following hypothetical.

[00:27:12] Speaker 02:
Suppose you've got an open-heart surgery, and you have a nurse whose job is to hand the scalpel

[00:27:19] Speaker 02:
to the doctor, can that nurse, in that setting, can that nurse get a consent from the patient?

[00:27:26] Speaker 02:
No, no.

[00:27:28] Speaker 02:
Why is the argument that you're making any different from that?

[00:27:32] Speaker 02:
Because you're saying a practitioner who is involved in the treatment, i.e.

[00:27:36] Speaker 02:
not actually doing the colonoscopy, but perhaps doing a preparation for the colonoscopy, or perhaps after the colonoscopy, taking care to make sure that the patient is doing fine.

[00:27:48] Speaker 02:
That person, I take it, your position is would be OK to get the consent, right?

[00:27:54] Speaker 06:
No.

[00:27:54] Speaker 06:
And this is the testimony of doctor dominance.

[00:27:57] Speaker 06:
And I would ask you to look at that.

[00:27:59] Speaker 06:
Because he explains that this is for gastroenterology.

[00:28:05] Speaker 06:
It's for these nurse practitioners.

[00:28:07] Speaker 06:
And what do they do?

[00:28:09] Speaker 06:
You go into the clinic.

[00:28:11] Speaker 06:
You see the nurse practitioner.

[00:28:13] Speaker 06:
You do not see the doctor.

[00:28:15] Speaker 06:
And the nurse practitioner listens to what you have to say.

[00:28:19] Speaker 06:
The nurse practitioner orders the colonoscopy.

[00:28:23] Speaker 06:
She tells you, this is how you've got to get prepared.

[00:28:26] Speaker 06:
You need two to three days to get it.

[00:28:27] Speaker 02:
Take my example.

[00:28:29] Speaker 02:
My nurse, who hands the scalpel, does all of those things with respect to the open heart surgery.

[00:28:34] Speaker 02:
Is it OK for her, under the language of this regulation, to- I can't answer that question, because they would go to the-

[00:28:41] Speaker 02:
It's pretty important that you have an answer for that, because that case is this case.

[00:28:47] Speaker 02:
No, it's not.

[00:28:49] Speaker 02:
By hypothesis, the nurse is doing everything that your practitioner would be doing in the colonoscopy case.

[00:28:57] Speaker 02:
Let's just accept that that is the preparation, this is what's going to happen, here's how long you're going to be in the hospital, and so forth.

[00:29:07] Speaker 06:
In order to get an answer to this question, the National Center for Ethics said, you have to go to Dr. Dominik.

[00:29:15] Speaker 06:
The two of them consulted.

[00:29:17] Speaker 06:
And it was based on his understanding.

[00:29:20] Speaker 06:
And he testified, it's only for these gastroenterology nurse practitioners.

[00:29:26] Speaker 03:
I get your argument that this is what's done in gastroenterology and these people should be allowed to get informed consent.

[00:29:35] Speaker 03:
The problem for your argument is that a fairly plain reading of the actual handbook provision does not line up with the VA policy.

[00:29:46] Speaker 03:
And so even if we agree with you that the VA policy was the nurse practitioner's

[00:29:51] Speaker 03:
could get this informed consent, even though they didn't perform the actual procedure.

[00:29:57] Speaker 03:
And so that makes his interpretation wrong, but it doesn't necessarily make it unreasonable and unprotected from the Whistleblower Protection Act.

[00:30:08] Speaker 06:
What makes it unprotected is the information that he was given, that the National Center

[00:30:15] Speaker 06:
which is the body that writes the handbook.

[00:30:17] Speaker 03:
So you're saying as soon as somebody from the VA says, we think you read this one way, we read this the other way, you're wrong.

[00:30:29] Speaker 03:
His suggestion that they're reading it wrong is unreasonable.

[00:30:33] Speaker 06:
That's not our argument.

[00:30:35] Speaker 06:
We've never argued that.

[00:30:36] Speaker 03:
What we're arguing is... I don't understand what you're arguing then.

[00:30:39] Speaker 03:
That's what you have to prove.

[00:30:41] Speaker 03:
You have to prove that his interpretation of this manual provision is unreasonable.

[00:30:47] Speaker 06:
What we have to prove is that his assertion that there will be a violation of the handbook is based upon facts that are known and are reasonably ascertainable.

[00:31:00] Speaker 06:
And based on those facts, it is a reasonable belief.

[00:31:04] Speaker 06:
And what we're saying is, in this case,

[00:31:06] Speaker 06:
It's not a reasonable belief.

[00:31:08] Speaker 05:
And the court agreed.

[00:31:09] Speaker 05:
And it's not unreasonable because why?

[00:31:11] Speaker 05:
Because Dr. Dominitz gave the official position that in his view, nurse practitioners can do this under the handbook.

[00:31:20] Speaker 05:
not only doctor dominic's also the national let me ask you this let me ask you a different hypothetical can i just answer please i'm sorry no it's okay well what what if hypothetically they botched the interpretation it's a desperately bad interpretation it is wrong wrong wrong it is super unreasonable

[00:31:41] Speaker 05:
Then would you say just the mere fact of communicating that very wrong, very unreasonable interpretation is enough to take away the reasonableness of Dr. Eddenfield's plain reading of the regulation and handbook?

[00:31:58] Speaker 05:
I just need a yes or no.

[00:32:00] Speaker 06:
I think I need to explain.

[00:32:02] Speaker 06:
I'm going to say no.

[00:32:02] Speaker 05:
Start with yes or no.

[00:32:04] Speaker 02:
OK, you say no.

[00:32:05] Speaker 06:
OK, no.

[00:32:06] Speaker 06:
And the reason is.

[00:32:07] Speaker 02:
It wouldn't be unreasonable, you say?

[00:32:08] Speaker 02:
I mean, it would still be unreasonable.

[00:32:12] Speaker 02:
Is that your position?

[00:32:13] Speaker 06:
Yeah.

[00:32:14] Speaker 06:
Dr. Anderfield's view would still be unreasonable because, as I said, it's an unusual case.

[00:32:19] Speaker 06:
This is an internal agency handbook.

[00:32:22] Speaker 06:
The authority on the handbook- With my hypothetical.

[00:32:25] Speaker 05:
The hypothetical is Alphandre and Dominitz said something that gave a really unreasonable interpretation of the Reg N handbook.

[00:32:36] Speaker 05:
Basically, an illegal interpretation.

[00:32:39] Speaker 06:
I guess I take it that you, the court, think it's unreasonable.

[00:32:42] Speaker 06:
But you, the court, are not the authority on the handbook.

[00:32:45] Speaker 03:
Can I elaborate on the handbook?

[00:32:48] Speaker 03:
No, no, no.

[00:32:48] Speaker 03:
I'm going to ask my question this time.

[00:32:50] Speaker 03:
I want to elaborate on the handbook, my hypothetical.

[00:32:53] Speaker 03:
The hypothetical is the manual provision says for colonoscopies, only the physician performing the colonoscopy can give informed consent.

[00:33:06] Speaker 03:
That sounds pretty plain, right?

[00:33:08] Speaker 06:
I would agree.

[00:33:09] Speaker 03:
Okay.

[00:33:10] Speaker 03:
But despite that, the VA thinks, well, that's really not what happens in this field, and that manual is just wrong, and we're going to allow nurse practitioners to do this because it's done in this field everywhere else.

[00:33:28] Speaker 03:
They say, and assume whoever's the authoritative doctor, the very top of the VA says, look, that manual may say X, but just ignore it because here is our authoritative interpretation of who can do this.

[00:33:44] Speaker 03:
If he comes in and says, well, the manual is really, really clear.

[00:33:49] Speaker 03:
Even if you say they can do it, you're still violating the manual provision.

[00:33:55] Speaker 03:
Assuming that manual provision has the force of law, doesn't he at least have a reasonable belief that he's disclosing a violation of law or regulation?

[00:34:04] Speaker 03:
Even if the most authoritative person has said that very plain manual provision is just wrong.

[00:34:11] Speaker 06:
I'll go with you there.

[00:34:12] Speaker 06:
I mean, you put in the qualifier.

[00:34:14] Speaker 06:
has the force of law.

[00:34:16] Speaker 02:
What we're saying here is that this is agency policy, it's interpreted by the national... Are you relying on the fact, which I actually wasn't aware of until late in the process, that the regulation that the AJ believed was effective in 2016 actually wasn't effective until 2020, and therefore the only

[00:34:39] Speaker 02:
document that contained the language of the 2020 regulation was the handbook.

[00:34:44] Speaker 02:
Is that the basis for your saying, well, the agency's authorities can effectively change the rules in the handbook?

[00:34:54] Speaker 02:
They couldn't change the regulation, obviously.

[00:34:57] Speaker 02:
You would agree.

[00:35:00] Speaker 02:
V.A.

[00:35:01] Speaker 06:
could change the regulation.

[00:35:02] Speaker 02:
But not Dr., what was his name?

[00:35:06] Speaker 02:
Dominitz Alfandre?

[00:35:07] Speaker 02:
No, it's the Dr. Hagen.

[00:35:09] Speaker 06:
Alfandre, I think you may be referring to... Well, I'm thinking the doctor that met with him, Hecht.

[00:35:15] Speaker 06:
Dr. Hecht is not really involved in getting the interpretation at all.

[00:35:19] Speaker 06:
He's just at the local level.

[00:35:22] Speaker 02:
But I think we can agree that the V.A.'

[00:35:26] Speaker 02:
's board that

[00:35:31] Speaker 02:
Next, these policies could not change the regulation.

[00:35:33] Speaker 02:
So are you, is your argument predicated on the fact that the regulation was not in effect in 2016?

[00:35:42] Speaker 06:
No, our argument depends on the board's findings.

[00:35:46] Speaker 02:
Okay, and what the board found... One of which effectively was that the regulation was in effect, which seems wrong.

[00:35:52] Speaker 06:
OK, but I mean, I think you look at the essence of the decision.

[00:35:55] Speaker 03:
So we have to start from whether you agree that that manual provision that was later codified by regulation is the type of law, rule, or regulation even covered by the WPA.

[00:36:08] Speaker 03:
If you think it's not a law, rule, or regulation that's even covered, whether it's a correct interpretation or not doesn't even matter because it

[00:36:16] Speaker 03:
A disclosure about that is not a disclosure at all.

[00:36:19] Speaker 03:
So I didn't see anything in your briefs that suggested that was an alternative basis for a firm.

[00:36:25] Speaker 03:
So we've been proceeding under the view that the manual provision is a law, rule, or regulation.

[00:36:31] Speaker 03:
Are we incorrect?

[00:36:33] Speaker 06:
No, you're correct.

[00:36:34] Speaker 06:
You are correct.

[00:36:35] Speaker 06:
You're not contending that there's a lack of jurisdiction.

[00:36:39] Speaker 06:
The vote found jurisdiction.

[00:36:41] Speaker 06:
And whether or not this jurisdiction goes to the

[00:36:44] Speaker 06:
the language that you're pointing to.

[00:36:46] Speaker 06:
Now, what the board found is that the belief about the handbook, and that's mentioned many, many times in his opinion, the belief about the handbook was an unreasonable belief specifically because of what he was told by Ms.

[00:37:09] Speaker 06:
Hagan.

[00:37:10] Speaker 03:
Because he was told he was wrong.

[00:37:12] Speaker 06:
Actually, she didn't tell him he was wrong.

[00:37:15] Speaker 06:
What she told him was everything that they had done and that the National Center for Ethics in Health Care and Dr. Dominick's had looked at it, applied it to the specific facts.

[00:37:29] Speaker 06:
And that's what's essential here.

[00:37:31] Speaker 06:
This is an application of a handbook to specific facts.

[00:37:36] Speaker 06:
And they've already looked at it.

[00:37:38] Speaker 06:
And he's given all of that information

[00:37:42] Speaker 06:
And he says, I still don't agree.

[00:37:45] Speaker 06:
And I would point to you her testimony page 426, her testimony 431.

[00:37:51] Speaker 06:
She says, quote, we told them all the steps.

[00:37:54] Speaker 06:
He still didn't agree, but that's OK.

[00:37:57] Speaker 06:
That's her testimony.

[00:37:58] Speaker 05:
I think we have your argument.

[00:38:00] Speaker 06:
Excuse me?

[00:38:01] Speaker 05:
I think we have your argument.

[00:38:02] Speaker 06:
OK, I'm sorry.

[00:38:03] Speaker 05:
No, thank you very much.

[00:38:04] Speaker 05:
We're way over time.

[00:38:06] Speaker 03:
We still have another appeal after this.

[00:38:09] Speaker 05:
Thank you very much.

[00:38:10] Speaker 05:
Thank you.

[00:38:11] Speaker 05:
Let's give Mr. Eddenfield here three minutes.

[00:38:17] Speaker 01:
Thank you.

[00:38:18] Speaker 03:
This is very briefly.

[00:38:20] Speaker 03:
Can I just follow up on what the government just finished with?

[00:38:23] Speaker 03:
Why wasn't it unreasonable for him to keep pushing this position when he was told that his understanding was incorrect?

[00:38:31] Speaker 01:
So that's not actually what happened, Your Honor.

[00:38:33] Speaker 03:
No, I don't want to get into the facts of this case.

[00:38:35] Speaker 03:
Let's just assume that's correct.

[00:38:38] Speaker 03:
Right, so because we can figure out whether that's correct or not, but I want to understand as a matter of law, why wouldn't it, if he was told, despite what this looks like, your view is not correct.

[00:38:52] Speaker 03:
Here is our policy.

[00:38:54] Speaker 03:
These people can do it.

[00:38:55] Speaker 03:
And before he heard that, sure, he had a reasonable reading.

[00:39:00] Speaker 03:
After he heard that and was definitively said, no, this is not the view,

[00:39:06] Speaker 03:
you know, it is permissible.

[00:39:08] Speaker 03:
Why is it reasonable for him to keep pushing that interpretation?

[00:39:13] Speaker 01:
So, sure, assuming that alternative hypothetical and those facts, I believe he would still be reasonable in having that view because of the plain text of the handbook and the regulation.

[00:39:28] Speaker 01:
But, of course,

[00:39:29] Speaker 01:
That's actually not what happened.

[00:39:30] Speaker 01:
He wasn't provided the information, certainly nothing sourced to the National Center for Ethics in healthcare.

[00:39:36] Speaker 01:
What he was provided was an unsourced quote and an email from Ms.

[00:39:39] Speaker 01:
Hagan that

[00:39:41] Speaker 01:
It mentioned the MEB board, which is the local facility, which no one contends has the right to interpret or provide any guidance on this.

[00:39:49] Speaker 01:
And then he went to the meeting and the testimony on that meeting was Ms.

[00:39:54] Speaker 01:
Higgin testified.

[00:39:56] Speaker 01:
He shared about it.

[00:39:57] Speaker 01:
And then she told him everything that they had done.

[00:39:59] Speaker 01:
Of course, Dr. Reddenfield's testimony was the substance of his concerns were not addressed.

[00:40:06] Speaker 02:
When exactly did he learn of the decision of the

[00:40:09] Speaker 02:
national board, the 20 doctors, whatever it is, that consult on these kinds of questions.

[00:40:16] Speaker 02:
When did that happen that he learned about?

[00:40:19] Speaker 01:
So it happened long after this was... It didn't occur on... He was not told of that on June 28th, because I think that happened very quickly.

[00:40:29] Speaker 01:
It did.

[00:40:29] Speaker 01:
So he received that email that had an unsourced quote.

[00:40:33] Speaker 01:
And it was not sourced to the National Center for Ethics in Health Care.

[00:40:36] Speaker 01:
According to Dr. Ebenfield's testimony, the substance of his concerns were not addressed in that meeting.

[00:40:42] Speaker 01:
He subsequently, later on after the disclosure, long after, he continued to email people and ask about it.

[00:40:49] Speaker 01:
And he was eventually provided an interpretation by Dr. Alfondri.

[00:40:52] Speaker 01:
Of course, that was long, long after his disclosure.

[00:40:55] Speaker 01:
I know I don't have much time, but I did want to address one point about the law, rule, or regulation.

[00:41:02] Speaker 01:
post-hearing submission.

[00:41:05] Speaker 01:
It's in Appendix 880.

[00:41:07] Speaker 01:
We cited Reid versus Department of Veteran Affairs.

[00:41:10] Speaker 01:
The site is 2015 Westlaw 293609.

[00:41:14] Speaker 01:
And it's an MSPB case, but that one found that a violation of handbook qualified.

[00:41:22] Speaker 01:
So I wanted to point that out in addition to the Drake case.

[00:41:27] Speaker 01:
the doctor dominance testimony i i i looked at that uh... he was being asked about doctor berkowitz's interpretation as represented in the tele teleconference transcript and he was asked if that was reasonable or not he had said he said well you know unreasonable is a difficult thing to say but then he eventually said

[00:41:45] Speaker 01:
He was pressed on that, and he eventually said, well, I think it's unreasonable.

[00:41:49] Speaker 01:
Of course, what he was saying was that the acting chief of ethics consultation at the National Center for Ethics in Health Care's interpretation as represented in that transcript was unreasonable.

[00:42:01] Speaker 01:
And that, of course, changed when Dr. Alfandre took the helm of that department.

[00:42:07] Speaker 01:
But he was saying that the agency's prior interpretation was unreasonable.

[00:42:11] Speaker 03:
So even if that is evidence, it's not substantial.

[00:42:16] Speaker 01:
It's certainly not substantial evidence, Your Honor.

[00:42:22] Speaker 01:
And I'll also point out one other thing.

[00:42:24] Speaker 01:
It's discussed in our briefs, but a critical thing that Dr. Eddenfield relied upon was the fact sheet, the National Center for Ethics in Health Care fact sheet.

[00:42:33] Speaker 01:
It was not discussed once.

[00:42:35] Speaker 05:
Or it didn't address it.

[00:42:36] Speaker 01:
Correct.

[00:42:37] Speaker 01:
OK.

[00:42:38] Speaker 01:
Thank you so much.

[00:42:38] Speaker 05:
Thank you very much.

[00:42:39] Speaker 05:
Case is submitted.