[00:00:00] Speaker 01:
Case is number 21, 1802, Fairfax against the Army.

[00:00:06] Speaker 01:
Right, Mr. Mihalic, are you ready?

[00:00:09] Speaker 04:
Good morning.

[00:00:09] Speaker 04:
May it please the court.

[00:00:11] Speaker 04:
My name is Matt Mihalic, and Mr. Meyer and I represent Petitioner Duane Fairfax.

[00:00:16] Speaker 04:
At this time, I would like to reserve two minutes for rebuttal.

[00:00:20] Speaker 04:
Thank you.

[00:00:20] Speaker 04:
And I just would note that I'm not able to see the time, the camera, or the clock on the camera here, but I'll do the best I can.

[00:00:29] Speaker 04:
keep track of the time on my end.

[00:00:33] Speaker 04:
Petitioner Fairfax respectfully requested this honorable court reverse the initial decision and remand the instant action for further processing.

[00:00:40] Speaker 04:
The administrative judge erred in finding that Petitioner Fairfax's reclama regarding his senior rating potential evaluation, or SERPI, was not a disclosure protected by the Whistleblower Protection Act, erred by finding that there was no nexus between Petitioner's protected disclosures

[00:00:58] Speaker 04:
and the July 2018 management directed reassignment.

[00:01:02] Speaker 04:
And, as Mr. Meyer will explain, by missupplying the car factors.

[00:01:07] Speaker 04:
And again, Mr. Meyer will explain that in further detail.

[00:01:10] Speaker 04:
That's how we're going to split this up.

[00:01:13] Speaker 04:
The first address, the first two points that were raised in our appeal, first... Hello, Counselor?

[00:01:20] Speaker 02:
Counselor, this is Judge Raina.

[00:01:22] Speaker 02:
Let me ask you a preliminary question before we get into the other issues that you just mentioned.

[00:01:28] Speaker 02:
And I'm having a very difficult time understanding why there's a belief that what we have before us is a protected disclosure.

[00:01:41] Speaker 02:
And a protected disclosure, as you know, involves a disclosure of information

[00:01:48] Speaker 02:
that involves violation of law, rule of regulations, gross management, gross waste of funds, an abuse of authority, or substantial specific danger to public safety or health.

[00:02:00] Speaker 02:
I don't see any of those involved in the claims for protected disclosure.

[00:02:07] Speaker 02:
And because of that, I'm dubious whether the Whistleblower Act even applies to it.

[00:02:14] Speaker 02:
Can you respond to that?

[00:02:18] Speaker 04:
And I just want to make sure that over the telephone, I understood your question correctly, which is whether or not the 2018 memorandum, which has been known in the record as a reclama, was a protected disclosure under the Whistleblower Protection Act, and whether it alleged a violation of law or rule of regulation.

[00:02:37] Speaker 04:
Is that right?

[00:02:38] Speaker 02:
Yeah, and we're going to have to share that Mr. Fairfax had a reasonable belief that he was making a disclosure.

[00:02:47] Speaker 04:
Absolutely.

[00:02:49] Speaker 04:
On that, I would direct the court's attention to the joint appendix at page 94 and 95.

[00:02:55] Speaker 04:
This sets out the agency's policy regarding a surfeum.

[00:02:59] Speaker 04:
These are not discretionary policies.

[00:03:02] Speaker 04:
The employee must have been in the position for a minimum of 120 days.

[00:03:08] Speaker 04:
And at hearing, agency officials testified that he had not been in position that long.

[00:03:14] Speaker 04:
And their actions at the time reflected the fact

[00:03:18] Speaker 04:
the circuit was improperly issued.

[00:03:19] Speaker 04:
It wasn't issued according to the relevant regulations and rules.

[00:03:29] Speaker 02:
That document actually favored Mr. Fairfax, didn't it?

[00:03:35] Speaker 04:
Well, the document... It was a boring report.

[00:03:41] Speaker 04:
He passed with flying colors.

[00:03:50] Speaker 04:
Outside of the context of Mr. Fairfax's employment, that report could appear to have been fully positive yet.

[00:04:00] Speaker 04:
However, Mr. Fairfax, the report was generated by an official who Mr. Fairfax had raised, or had identified, I should say, in his protected disclosures to the IG.

[00:04:16] Speaker 04:
And it was ultimately,

[00:04:19] Speaker 04:
it was ultimately something that he knew was going to be used to, and as the administrative judge held, this was a personnel action that affected his promotion potential.

[00:04:33] Speaker 04:
And a major issue here was the question of, we can talk about damning with faint praise, or we can discuss the control that, first of all, Mr. Fairfax

[00:04:50] Speaker 04:
Um, sought to have over his, uh, over his career development.

[00:04:55] Speaker 04:
This is Judge Raina.

[00:04:59] Speaker 02:
Yes.

[00:05:00] Speaker 02:
None of, none of the factors that you cite actually happened.

[00:05:05] Speaker 02:
He was not held back from promotion.

[00:05:07] Speaker 02:
In fact, he was promoted.

[00:05:09] Speaker 02:
He was, his salary was maintained.

[00:05:13] Speaker 02:
He just seems to have moved through this process rather well compared to other claimants we have in whistleblower acts.

[00:05:23] Speaker 02:
Was your client aware of what the SERPI report said before it was released?

[00:05:33] Speaker 04:
Was my client aware of what the SERPI said before it was released?

[00:05:36] Speaker 04:
Correct.

[00:05:39] Speaker ?:
Okay.

[00:05:40] Speaker 04:
Your Honor, I believe the answer to that question is Appendix 113 and 14.

[00:05:48] Speaker 04:
I believe he had received it at the time that he issued his memorandum disputing it.

[00:05:56] Speaker 04:
And it's not a question, Your Honor, and I would add that it's not a question of whether or not it was a fact.

[00:06:03] Speaker 02:
How can you say that Mr. Fairfax had a reasonable belief that he was making a protected disclosure

[00:06:09] Speaker 02:
when in fact he was aware of the content of the report before it was released, and that content of that report highly favored him.

[00:06:20] Speaker 04:
Well, Your Honor, I mean, as a matter of law, I think that a protected disclosure could be something that was done that was favorable to an individual.

[00:06:29] Speaker 04:
As a matter of law, I don't see any reason why a report that if it was generated in a manner inconsistent with law, rule, or regulation,

[00:06:37] Speaker 04:
Even if it was favorable to an individual, they could still report it as having been inappropriately issued.

[00:06:45] Speaker 04:
That does come up at the juncture of whether it was a protected disclosure.

[00:06:53] Speaker 04:
That's a question of whether the action was adverse.

[00:07:00] Speaker 04:
That's a separate part of the case.

[00:07:02] Speaker 01:
What is the remedy that you are seeking?

[00:07:07] Speaker 04:
We're seeking to have this, we're asking to have this remanded for further processing below.

[00:07:17] Speaker 01:
Processing for what purpose?

[00:07:22] Speaker 04:
Your Honor, to re-evaluate, well, Mr. Meyer will

[00:07:38] Speaker 04:
were first looking to have this remanded with a finding that his 2018 reclama memorandum was a protected disclosure as well as holding that either as a result of the first or independently that there was in fact a causal connection between the 2018 management directive refinement and Fairfax's protected activity.

[00:08:05] Speaker 01:
And therefore, what remedy is he seeking a restoration to the prior context in which he was working?

[00:08:17] Speaker 04:
As far as this entire complaint goes, we're looking to have this remanded.

[00:08:27] Speaker 04:
Mr. Fairfax is looking to have some of these items.

[00:08:30] Speaker 04:
uh, corrected as far as his personnel record goes.

[00:08:34] Speaker 04:
Um, and, and those are the, you know, we, we, the, the, the relief that we've identified below is the relief that he's continuing to seek.

[00:08:41] Speaker 05:
What is that?

[00:08:43] Speaker 05:
I don't understand what you're asking for.

[00:08:48] Speaker 05:
Are you asking him to be moved from his current position back to an old position?

[00:08:54] Speaker 05:
Are you just asking for some kind of compensatory damages under the Whistleblower Protection Act?

[00:08:59] Speaker 05:
It's not clear to me.

[00:09:01] Speaker 05:
You point out all these violations, alleged violations, and alleged retaliatory actions, but usually when you do that, you say, if there hadn't been whistleblower retaliation, this person wouldn't have been fired, or this person would have gotten a promotion.

[00:09:16] Speaker 05:
But he hasn't been fired, at least on this record, and he got the promotions he wanted.

[00:09:23] Speaker 05:
What order from the board are you going to ask for the board to order the agency to do if you prevail?

[00:09:35] Speaker 04:
We have identified compensatory damages.

[00:09:40] Speaker 04:
I think we've also identified certain actions to be taken to correct his record.

[00:09:45] Speaker 04:
I think that there are additionally, although I'm not sure of all of the actions that have taken place,

[00:09:52] Speaker 04:
to the action of this appeal, but other actions as far as the reassignment and various positions that he was placed in.

[00:10:04] Speaker 01:
All right.

[00:10:05] Speaker 01:
Let's hear from Mr. Meyer.

[00:10:07] Speaker 01:
Perhaps he can give us a more direct answer to these questions.

[00:10:14] Speaker 01:
Can the court hear me?

[00:10:16] Speaker 03:
Yes.

[00:10:17] Speaker 03:
Can you hear us?

[00:10:18] Speaker 03:
Yes, I can.

[00:10:20] Speaker 03:
Very good line, Your Honor.

[00:10:22] Speaker 03:
That was the remedy sought at the lower level before the hearing about the board.

[00:10:30] Speaker 03:
Mr. Fairfax wants to be back where he was.

[00:10:35] Speaker 03:
It's hard to make this disclosed.

[00:10:36] Speaker 03:
What changed was the duties that defined him.

[00:10:42] Speaker 03:
a job that was a different type of activity in a different field, not in the area of cyber defense, which frankly has become quite competitive and quite sought after assignments within the federal government.

[00:10:58] Speaker 03:
And so that change, in addition to the correction of the record, record needs to be corrected because that makes them more competitive going forward.

[00:11:09] Speaker 03:
So we did not reach the

[00:11:11] Speaker 03:
The bifurcated damages phase at the board because of the way General decided the opinion, but we have advanced the theory on damages that had he not been reassigned into a different type of activity, he would have been more competitive in the field in which he had developed that experience.

[00:11:38] Speaker 03:
And if that helps clarify the matter, I can also give my presentation on the bar test.

[00:11:43] Speaker 01:
OK.

[00:11:44] Speaker 01:
Proceed with what you want to tell us.

[00:11:47] Speaker 03:
OK.

[00:11:47] Speaker 03:
Yes, Your Honor.

[00:11:48] Speaker 03:
May it please the Honorable Court and Dan Meyer, co-counselor to Mr. Fairfax, with Mr. McHarris and admitted to this court and to the Bar of District of Columbia.

[00:11:57] Speaker 03:
The conventionally established Title V rubric for analyzing reprisal against federal whistleboards consists of a four-part test.

[00:12:05] Speaker 03:
The fourth element splits into a three-prong analysis under the ruling car and its progeny.

[00:12:11] Speaker 03:
The four-part test first three elements burden our client, Mr. Fairfax.

[00:12:15] Speaker 03:
The fourth element splits into car three prongs, and that burdens the Department of the Army.

[00:12:20] Speaker 03:
in this proceeding.

[00:12:22] Speaker 03:
Of importance before the court is a matter of law, namely whether the judicial administration below of the car analysis, whether that process properly locks the Title V statutory and take the application

[00:12:38] Speaker 03:
means that the four-part test correctly allocates elements between the whistleblower and the alleged advisor.

[00:12:46] Speaker 03:
That allocation is designed to assign the production of evidence to the party best suited with access to the data.

[00:12:54] Speaker 03:
It is done to the efficiency of the judicial process.

[00:12:57] Speaker 03:
A whistleblower like Mr. Fairfax, observing corruption,

[00:13:00] Speaker 03:
can read Title V, earn his affairs accordingly, and then preserve evidence and make the presentation before the board, which is then well guided by the legislature's pick.

[00:13:11] Speaker 03:
A whistleblower who does their homework, is studied up, will find protection.

[00:13:16] Speaker 03:
There is predictability in these first three elements of Title V that will protest.

[00:13:22] Speaker 03:
What does not exist

[00:13:23] Speaker 03:
Under the fourth element is that predictability, and that is the part of the rubric that orders the agency's work.

[00:13:30] Speaker 03:
In the fourth element enabled by CAR, the net effect of the board's jurisprudence is often wrongly described as giving the agency an out.

[00:13:40] Speaker 03:
Show the correctness of the action, make the decision at a level in which moment it may not be actual or impaired,

[00:13:46] Speaker 03:
like or similar employees in the same manner, and that agency will find its actions indicated despite the presence of a prima facie case.

[00:13:54] Speaker 03:
That's the law.

[00:13:55] Speaker 03:
Be a good and competent manager and use the alleged responsible management official to have the evidence to clear a sullied name when the time comes for agency counsel to defect.

[00:14:06] Speaker 03:
But when management does not execute its responsibility accordingly, there's a danger that some jurors, with intent or by mere reflex, will adjust the car analysis and provide a form of what I would deem unapproved local administrative equity for the agency.

[00:14:22] Speaker 03:
Judicial decision making under car, therefore, and wrongfully, becomes a gap filler for missing agency evidence.

[00:14:30] Speaker 03:
That's why this is in front of the honorable court.

[00:14:34] Speaker 03:
In the decision bureau, the car three-factor test was misapplied in this manner.

[00:14:38] Speaker 03:
The relevant factors were analyzed and considered, such as existence of malice or animus on the part of the decision makers.

[00:14:45] Speaker 03:
One does not need malice or animus to simply have motive.

[00:14:49] Speaker 03:
The two are a different concept.

[00:14:50] Speaker 03:
They might be related, and so and so a pedigree back to Title VII, but really motive is different.

[00:14:56] Speaker 03:
The general did not make a lack of comparative employees appropriately.

[00:15:00] Speaker 03:
The agency has no impediment in the production of adequate comparative data.

[00:15:05] Speaker 03:
It owns all the data.

[00:15:07] Speaker 03:
And the Department of Army is well enough to produce a simple data set of 40 to 50 competitors.

[00:15:13] Speaker 03:
This they did not do.

[00:15:15] Speaker 03:
And currently, you can argue the merits of the data set.

[00:15:18] Speaker 03:
It's lacking its characteristics.

[00:15:20] Speaker 03:
But the agency must produce the evidence for that argument to take place.

[00:15:24] Speaker 03:
And finally, Judge Howard.

[00:15:27] Speaker 03:
Am I done?

[00:15:29] Speaker 01:
Well, finish your sentence.

[00:15:31] Speaker 03:
Okay.

[00:15:32] Speaker 03:
And finally, Dr. Carroll allocated some evidence to the car factor, noting that it favored the agency when it should have been allocated the car factor free when it favored Mr. Fairfax.

[00:15:41] Speaker 03:
Okay.

[00:15:44] Speaker 01:
Any questions for Mr. Meyer?

[00:15:46] Speaker 01:
Any questions?

[00:15:47] Speaker 01:
All right.

[00:15:48] Speaker 01:
Thank you.

[00:15:49] Speaker 01:
We'll hear from the government.

[00:15:52] Speaker 01:
Mr. Howe, when you're ready.

[00:15:53] Speaker 00:
The police of the court.

[00:15:56] Speaker 00:
Stephen Huff, from the Department of the Army.

[00:15:58] Speaker 00:
Mr. Fairfax argues that he was reassigned and improperly given a senior rater potential evaluation in retaliation for allegedly protected activity.

[00:16:07] Speaker 00:
The merit system detection board held that the Army demonstrated by clear and convincing evidence that it would have taken the same personnel actions even absent Mr. Fairfax's allegedly protected activity.

[00:16:17] Speaker 00:
Specifically, the first CAR factor, the strength of the agency's evidence.

[00:16:21] Speaker 00:
The MSUB found that that supported the Army for each of the four challenge actions.

[00:16:26] Speaker 00:
Again, the second CAR factor,

[00:16:28] Speaker 00:
the existence and strength of motive to retaliate.

[00:16:31] Speaker 00:
Again, the MSOB found that supported the Army for each and every four of the challenge actions.

[00:16:37] Speaker 00:
For the third car factor, evidence that the agency takes similar actions against similarly situated employees, the MSOB found that that was neutral for each of the four challenge actions.

[00:16:46] Speaker 00:
That decision is supported by substantial evidence and should be affirmed.

[00:16:53] Speaker 02:
You heard my question about whether we're actually dealing with a disclosure of protected information under the Whistleblower Protection Act, right?

[00:17:01] Speaker 02:
I did, Your Honor.

[00:17:02] Speaker 02:
What's your position on that?

[00:17:04] Speaker 00:
We are not, Your Honor.

[00:17:05] Speaker 00:
It is not a protected disclosure.

[00:17:06] Speaker 00:
The MSV found it merely a pro forma list of things that did not rise to the level of a protected disclosure, and I believe Your Honor's analysis was correct.

[00:17:16] Speaker 00:
It does not rise to protected disclosure.

[00:17:18] Speaker 02:
But even if it did... I'm surprised you didn't start with that argument, because that disposes of the entire case.

[00:17:24] Speaker 00:
Respectfully, Your Honor, that would only dispose of the July 2018 aspect of it.

[00:17:29] Speaker 00:
There is the protected activity, alleged protected activity of the IG report that relates to the temporary transfer, the first permanent transfer, and the senior rate of potential evaluation.

[00:17:40] Speaker 00:
The alleged protected disclosure in the reclama came after in time and therefore only related to the final July 2018 transfer.

[00:17:54] Speaker 02:
With respect to the damages that are being talked about here,

[00:17:59] Speaker 02:
Is it your view that Mr. Fairfax was demoted or received lesser compensation as a result of the activity, the protected activity?

[00:18:13] Speaker 00:
He was neither demoted nor did he receive less compensation.

[00:18:16] Speaker 00:
In fact, his duty change station did not even change in the last transfer.

[00:18:20] Speaker 00:
He actually went to a better organization in that before he's reporting to an old five level Lieutenant Colonel.

[00:18:26] Speaker 00:
And then in the new position, we're reporting to a more senior Oh, six level Colonel.

[00:18:31] Speaker 00:
On top of that, Your Honor, with regard to the senior rate or potential evaluation, it's important to point out that after Mr. Fairfax complained, within one month or so, despite the presence of the Christmas holidays, that was withdrawn from his file.

[00:18:44] Speaker 00:
In fact, it's not in the joint appendix.

[00:18:46] Speaker 00:
There's only other references to it because it's been destroyed entirely.

[00:18:49] Speaker 02:
Didn't that request to fill out the Sherpie report, didn't that go out to more people other than just Mr. Fairfax?

[00:18:57] Speaker 00:
That is absolutely correct, Your Honor.

[00:18:58] Speaker 00:
That was a at least component-wide decision.

[00:19:01] Speaker 00:
It went to everybody at the GS-15 level or equivalent.

[00:19:04] Speaker 02:
He's not the only one that received it.

[00:19:07] Speaker 00:
Absolutely correct, and that's true for the transfer as well with July 2018.

[00:19:11] Speaker 00:
He was moved because of a realignment of certain divisions with the Army trying to separate the technical management and cyber security functions.

[00:19:18] Speaker 00:
He was not the only employee affected by that reorganization.

[00:19:21] Speaker 00:
In no way was he single.

[00:19:22] Speaker 02:
What's your response to the questions we had to Mr. Furfax about the relief that's sought?

[00:19:29] Speaker 00:
Your Honor, the first part of his relief to have his personnel file expunged, that's already happened.

[00:19:33] Speaker 00:
That issue is moved.

[00:19:34] Speaker 00:
We argued that in our brief.

[00:19:36] Speaker 00:
He did not address that in his reply brief whatsoever.

[00:19:39] Speaker 00:
That resolves that aspect of it.

[00:19:41] Speaker 00:
As to the rest, I agree with the court's suggestion.

[00:19:42] Speaker 00:
It's hard to see what possible damage Mr. Fairfax suffered.

[00:19:46] Speaker 00:
He was not sent to a different location.

[00:19:48] Speaker 00:
He was not demoted.

[00:19:49] Speaker 00:
He did not receive a loss of pay.

[00:19:51] Speaker 00:
And I understand that, although it's outside the record, as of 2019, he's now employed not by the Army, but by the Marine Corps.

[00:19:58] Speaker 00:
For those reasons, we respectfully request that the Court affirm the judgment of the Merit Assistance Protection Board.

[00:20:03] Speaker 01:
Thank you.

[00:20:05] Speaker 01:
Anything else?

[00:20:06] Speaker 01:
Good.

[00:20:06] Speaker 01:
Thank you, Council.

[00:20:09] Speaker 01:
Okay, Mr. Mihalik, you have a couple of minutes for rebuttal.

[00:20:14] Speaker 04:
Absolutely, Your Honor.

[00:20:16] Speaker 04:
I'd like to just first note that the Board must consider oil wells and factories as evidence, plus I believe there is more.

[00:20:23] Speaker 04:
countervailing evidence by only looking at the evidence showing the agency's position.

[00:20:27] Speaker 04:
I'm not sure we've been keeping that.

[00:20:31] Speaker 04:
We would refer the court's attention to Allery, the Department of Army, 122 MSPR 600, especially page 608.

[00:20:41] Speaker 04:
The failure to produce any of it's oil under one or more costs, the client offices want not to be used by the agency to locally reformulate the four-part text.

[00:20:50] Speaker 04:
The board did not

[00:20:54] Speaker 04:
the evidence, but weigh them together to determine whether the evidence is clear as a whole.

[00:21:16] Speaker 04:
In doing so, one may knowingly or unknowingly reverse engineer a decision toward a different end than a cloud analysis would permit.

[00:21:23] Speaker 04:
We know that once a whistleblower shows protective disclosures contributed to an action, the agency who bears the burden of sharing would have acted the same, absent any whistleblowing.

[00:21:34] Speaker 04:
But where the board finds an absence of relative

[00:21:45] Speaker 04:
908 effort, 1291, 1299.

[00:21:49] Speaker 04:
The board can't simply guess what might have happened absent whistleblower.

[00:21:57] Speaker 04:
We direct the record to our briefs for the arguments as far as four instances where Judge Harold misapplied CAR and its progeny to produce a decision against our client.

[00:22:11] Speaker 04:
And we respectfully reiterate our request to the Solvable Court, reverse the initial decision, remaniate the action for further adjudication.

[00:22:18] Speaker 04:
I'm not sure how much more time I actually have.

[00:22:21] Speaker 04:
I don't see the timer and I'm not tracked.

[00:22:25] Speaker 04:
But there we go.

[00:22:29] Speaker 04:
I guess that's how much time I have left.

[00:22:31] Speaker 01:
Thank you.

[00:22:33] Speaker 01:
But let me ask you one last question because it looks as if we

[00:22:39] Speaker 01:
except everything that has been put forward on behalf of Mr. Fairfax, that the relief is to put him back in the job he had before all of this transpired.

[00:22:52] Speaker 01:
And I gather that that is not a relief that you're requesting.

[00:22:58] Speaker 01:
Is that right?

[00:23:02] Speaker 04:
I'd leave that question to Mr. Meyer, please.

[00:23:06] Speaker 04:
Oh, he's dropped off the line.

[00:23:10] Speaker 04:
Well, I believe the relief that we're requesting here is that identified by Mr. Meyer as far as below.

[00:23:18] Speaker 04:
We didn't reach the question of relief and whether or not relief was available at the prior stage.

[00:23:33] Speaker 04:
did take him off track of his own expertise and into a different track.

[00:23:40] Speaker 04:
And in so doing, had a negative effect on his, excuse me, performance.

[00:23:49] Speaker 01:
All right.

[00:23:50] Speaker 01:
Any more questions for counsel?

[00:23:52] Speaker 01:
Good.

[00:23:53] Speaker 01:
Thank you.

[00:23:54] Speaker 01:
Thanks to all three counsel.

[00:23:55] Speaker 01:
The case is under submission.

[00:23:59] Speaker 01:
And that concludes this panel's

[00:24:02] Speaker 01:
arguments for this session.