[00:00:00] Speaker 00:
The argued case is number 21, 22, 21, McHadam against the Department of Veterans Affairs.

[00:00:10] Speaker 00:
Mr. Austin.

[00:00:14] Speaker 01:
May I proceed?

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

[00:00:20] Speaker 01:
Thank you for considering the appeal of my client, Nafisi Moghadam.

[00:00:25] Speaker 01:
a dedicated licensed physician assistant employed by the VA at its Los Angeles campus.

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

[00:00:31] Speaker 01:
Mogadam's appeal is an important case for federal whistleblowers.

[00:00:36] Speaker 05:
Counselor, if you were to win today, what is it that you expect to gain?

[00:00:40] Speaker 05:
What's the relief that you're seeking?

[00:00:43] Speaker 01:
I would say two things to answer that.

[00:00:45] Speaker 01:
One with regards to what my client is seeking and then what

[00:00:49] Speaker 01:
She is also entitled to.

[00:00:51] Speaker 01:
So for my client, it's very important that she is acknowledged as a whistleblower and that she received corrective action with regards to the fact that she was a whistleblower and that this contributed to her removal, even though she has since been internally.

[00:01:06] Speaker 05:
I understand what arguments are.

[00:01:09] Speaker 05:
What is it that you're seeking?

[00:01:11] Speaker 05:
What's the relief that you're seeking?

[00:01:14] Speaker 01:
The relief that we're seeking is, one, that she is deemed a whistleblower and that she receives corrective action that her removal was due to her whistleblowing.

[00:01:27] Speaker 01:
Secondly, she is seeking to go forward with evidentiary hearing with relation to compensatory damages related to that finding.

[00:01:35] Speaker 05:
So it's compensatory damages.

[00:01:37] Speaker 05:
That's the relief.

[00:01:38] Speaker 05:
Correct.

[00:01:41] Speaker 05:
Is there any other thing that... Is that it?

[00:01:45] Speaker 05:
Just compensatory damages?

[00:01:46] Speaker 01:
Well, compensatory damages as set forth in the amendment to the WPA in 2012.

[00:01:54] Speaker 01:
That is correct.

[00:01:55] Speaker 05:
Okay.

[00:01:56] Speaker 05:
Your client is working, right?

[00:01:58] Speaker 01:
She is.

[00:01:58] Speaker 05:
Reinstated and it's working.

[00:02:00] Speaker 05:
So the only thing you're looking for is compensatory damages.

[00:02:04] Speaker 05:
Did you argue for compensatory damages below?

[00:02:07] Speaker 01:
In the below case, there would have been a claim for compensatory damages had there been a finding of jurisdiction based on whistleblowing.

[00:02:15] Speaker 01:
And I'll also remind the court that the fact that she was seeking corrective action was never challenged until it got to this federal circuit.

[00:02:27] Speaker 01:
The VA never made any issue of the fact that she was seeking jurisdiction.

[00:02:31] Speaker 05:
I'm asking because it looks like you already won the case.

[00:02:36] Speaker 05:
She's been reinstated.

[00:02:38] Speaker 05:
And I'm leery whether there's anything else here.

[00:02:42] Speaker 05:
On your assertion from compensatory damages, it appears to me that that was not properly argued below.

[00:02:52] Speaker 05:
And we don't have jurisdiction over that particular issue.

[00:02:57] Speaker 01:
Our position is that she would be making the claim for damages once there was a finding of jurisdiction.

[00:03:04] Speaker 01:
And we do think that it's important that there is a finding of jurisdiction in this case because she still is employed by the VA.

[00:03:12] Speaker 01:
She still is a whistleblower.

[00:03:15] Speaker 01:
And this issue has never been adjudicated.

[00:03:18] Speaker 01:
And I'd like to make some points that were not brought up in our briefing in response to the agencies citing to the Tunic case.

[00:03:26] Speaker 04:
gray brief is for, right?

[00:03:29] Speaker 04:
The government raises whatever issues it raises and it's red brief.

[00:03:33] Speaker 04:
And then you have an opportunity to reply in your gray brief.

[00:03:37] Speaker 01:
Well, we, we did reply in the brief along the lines of what I'm saying right now is that once you seeking compensatory damages.

[00:03:45] Speaker 04:
I know, I guess I'm, I'm, I'm cutting you off at the pass when you said you want to talk about some additional points that you didn't raise in your gray brief.

[00:03:56] Speaker 04:
uh... we didn't we didn't raise those those issues because we've already set forth clear that she wants to be have corrective action on the ground that she's a whistleblower and that she's entitled to you know i think that this is the question corrective action what what is the action that she's looking for is she back in her position i guess the answer is that she's employed again with the viet right and then secondly uh... typically there's

[00:04:26] Speaker 04:
issues of back pay.

[00:04:28] Speaker 04:
And as far as we can tell, she has received all her various back pay.

[00:04:34] Speaker 01:
Well, that is an issue she denies and something that she would have set forth more clearly had there been an evidentiary hearing on her compensatory damages.

[00:04:44] Speaker 04:
Um, and I could, I can, uh, there was no hearing, uh, or exploration on ex, on compensatory damages because it was just something that was never identified below.

[00:04:55] Speaker 04:
The only thing that was identified below as far as I can tell in terms of a corrective action was, um, back pay for March to April of 2018.

[00:05:03] Speaker 04:
Uh, and then, uh, that was found by the AJ to not have been proven.

[00:05:11] Speaker 04:
And then you have an appeal that section of the AJ's decision.

[00:05:15] Speaker 04:
So now I guess that that's why I, this court is in a bit of a quandary to try to understand what is the basis for the case or controversy.

[00:05:25] Speaker 04:
What is the basis for the corrective action?

[00:05:28] Speaker 04:
Other than I understand the general broad desire to be recognized as a whistleblower, but in terms of corrective action, I'm not sure what the actual relief it is.

[00:05:41] Speaker 04:
that you're coming to this court for.

[00:05:44] Speaker 01:
I apologize to interrupt.

[00:05:47] Speaker 01:
The corrective action that we're here for is for there to be a decision, not that the internal finding was that there was insufficient evidence to support her termination and removal, but that there actually was, more than that, that there actually was retaliation against her

[00:06:08] Speaker 01:
that she was a whistleblower and given the strong public policy for whistleblowing, it is our position that she wants to be deemed a whistleblower and have the corrective action saying you were terminated because of your whistleblower.

[00:06:21] Speaker 01:
And I could give some more context as to why she's here and why she's pursuing this appeal so vigorously is that she was ordered to be returned to work four years ago and to be given full autonomy.

[00:06:35] Speaker 01:
To date, four years later, they have dragged their heels.

[00:06:38] Speaker 01:
She still does not have full autonomy.

[00:06:41] Speaker 01:
She still is not allowed to see patients for nothing that she's done, but she's had to go through hoops and threats just to get under a new superior where she still has not been credentialed.

[00:06:53] Speaker 01:
Is that part of this appeal?

[00:06:55] Speaker 01:
That's not part of this.

[00:06:57] Speaker 01:
It is and it isn't.

[00:06:58] Speaker 01:
It's the reason why she's seeking this relief and why it's important to her to say that they did something wrong to her.

[00:07:07] Speaker 01:
Not that there was just insufficient evidence that she was to find her removal, but there is more than that.

[00:07:16] Speaker 01:
That they violated Congress's mandate

[00:07:19] Speaker 01:
to retaliate against whistleblowers.

[00:07:22] Speaker 01:
And as I was going to say also, that in the decision cited by the government, the reason why they found that there was mootness is because they said, well, the person resigned, and it wasn't a termination decision, and this is just not going to happen again.

[00:07:38] Speaker 01:
There's just no risk of this reasonably happening again.

[00:07:41] Speaker 01:
That's not the case here.

[00:07:43] Speaker 01:
The case here is that it is happening again.

[00:07:45] Speaker 01:
It could happen again, and she should be given

[00:07:48] Speaker 01:
the affirmative decision of corrective action as a whistleblower.

[00:07:53] Speaker 01:
And that's why we're here.

[00:07:55] Speaker 00:
Even though, trying to look at it, you haven't quantified any compensatory damages.

[00:08:03] Speaker 00:
As far as the record shows, there is no gap in pay and back pay.

[00:08:10] Speaker 00:
It certainly, I agree, it does look as if they were not particularly enthusiastic about returning her to the position or a similar position.

[00:08:22] Speaker 00:
but in terms of gaps for what happened without any quantification of what she's looking for.

[00:08:32] Speaker 00:
And it looked as if what you're asking, a declaration, yes, she's a whistleblower or yes, she's associated with a whistleblower.

[00:08:45] Speaker 00:
It's not at all clear what this can conceivably accomplish.

[00:08:51] Speaker 00:
And I came away with this record looking at the primary role of this appeal is the attorney fee aspect of whistleblowing.

[00:09:02] Speaker 00:
And whether, if you are a whistleblower, there is more of a tilt towards payment of attorney fees.

[00:09:15] Speaker 00:
Is that accurate?

[00:09:17] Speaker 00:
You haven't mentioned attorney's fees.

[00:09:20] Speaker 01:
That is something that we would contend she is entitled to if she prevails.

[00:09:25] Speaker 01:
And in this case, he has found jurisdiction.

[00:09:28] Speaker 01:
In the 2012 amendment, there was two different categories of recovery.

[00:09:35] Speaker 01:
One, they did mention attorney fees.

[00:09:37] Speaker 01:
And then separately, they mentioned compensatory damages.

[00:09:40] Speaker 01:
And one of the compensatory damages that's stated in the 2012 amendment

[00:09:44] Speaker 01:
is that costs as well.

[00:09:46] Speaker 01:
So that's differentiated from attorney fees.

[00:09:48] Speaker 01:
But yes, to answer your question, she would be seeking attorney fees.

[00:09:53] Speaker 00:
But you've never said what money she lost and was not restored.

[00:10:00] Speaker 00:
And from the record, it looks as if the agency tried to be meticulous in assuring that as far as money was concerned, she was made whole.

[00:10:13] Speaker 01:
One of the contentions that she raised was that she did not get full back pay.

[00:10:18] Speaker 01:
And the MSPB judge determined that she hadn't met that burden of proof of proving she didn't get back pay.

[00:10:28] Speaker 04:
And you didn't appeal that part.

[00:10:30] Speaker 04:
You did not appeal that part of the board's decision below.

[00:10:34] Speaker 01:
Well, we are seeking compensatory damages, and that would fall within compensatory damages as well.

[00:10:42] Speaker 04:
But do you understand that that was a clear issue of controversy below, whether back pay was in fact provided, and the AJ found that your side hadn't made the case for there being any missing back pay?

[00:11:01] Speaker 04:
And then you had an opportunity with this appeal, with this vehicle, to challenge that finding by the board.

[00:11:09] Speaker 04:
And you chose not to make that appeal.

[00:11:13] Speaker 04:
So we're a little bit stuck now with trying to revisit an issue that has essentially been waived and forfeited by you not having appealed that portion of the board's decision.

[00:11:26] Speaker 01:
I understand.

[00:11:29] Speaker 04:
So that's why I feel like back pay is off the table.

[00:11:32] Speaker 01:
That I correct was not the focus of our briefing.

[00:11:39] Speaker 01:
Our focus is that she wants corrective action to be a whistleblower and then have a hearing for her to make claims for compensatory damages and attorney fees.

[00:11:51] Speaker 01:
So that's correct.

[00:11:53] Speaker 01:
You are correct that that was not set forth.

[00:11:56] Speaker 04:
So we're little stuff.

[00:11:58] Speaker 04:
We're off the table on that.

[00:11:59] Speaker 04:
What would be the compensatory damages?

[00:12:01] Speaker 04:
You've said the term compensatory damages, but I have no idea what that actually means.

[00:12:08] Speaker 04:
What list of things could that be other than back pay?

[00:12:14] Speaker 01:
Well, we would make one for her cost

[00:12:17] Speaker 01:
Two, make a claim that she's entitled to emotional damages, and three, it would open the door for her to make a claim for front pay given the fact that she's arguing that she is a whistleblower.

[00:12:29] Speaker 01:
I'm not making any sort of affirmation on the record here what she intends to do, but that could be an option for her for front pay given the fact that it's her contention that she is a whistleblower and that this is still ongoing.

[00:12:47] Speaker 04:
I'm sorry, I don't know what front pay is.

[00:12:48] Speaker 04:
Can you explain that?

[00:12:50] Speaker 04:
I know what back pay is.

[00:12:51] Speaker 04:
I don't know what front pay is.

[00:12:53] Speaker 01:
Front pay could potentially be a claim for her to make if she's saying that I have been retaliated against and can no longer be here and that's some sort of constructive claim that I should be entitled to future payment instead of having to endure working here.

[00:13:13] Speaker 01:
Now, I want to make clear because she's still employed there, she's not

[00:13:17] Speaker 01:
you know, seeking to leave right now.

[00:13:19] Speaker 01:
And she may not make that claim, but that's something that would be afforded to her as well.

[00:13:29] Speaker 00:
All right.

[00:13:29] Speaker 00:
Let's hear from the government and we'll save your rebuttal time.

[00:13:33] Speaker 00:
Mr. Edelstein.

[00:13:34] Speaker 02:
Good morning, your honors.

[00:13:35] Speaker 02:
May it please the court.

[00:13:38] Speaker 02:
The VHA removed Ms.

[00:13:39] Speaker 02:
Mogadam for poor performance, not because of any whistleblower activity.

[00:13:44] Speaker 02:
But before we get to the merits, there is a mootness issue that looms large in this case.

[00:13:50] Speaker 02:
This case is unusual in that Ms.

[00:13:52] Speaker 02:
Moghadam was restored to her position on the recommendation of an administrative board, known as the DAB.

[00:14:01] Speaker 02:
And she's still working at the VHA today.

[00:14:04] Speaker 02:
So what relief can she meaningfully obtain in this IRA appeal?

[00:14:09] Speaker 02:
Well, at the MSPB, as has been discussed, she only requested back pay.

[00:14:16] Speaker 02:
But the board found a failure of proof on that issue.

[00:14:19] Speaker 02:
And she does not challenge the board's back pay finding in this court.

[00:14:24] Speaker 02:
So what's left?

[00:14:25] Speaker 02:
Ms.

[00:14:26] Speaker 02:
Mogadam argues that she's entitled to request other relief

[00:14:30] Speaker 02:
under the whistleblower statute.

[00:14:33] Speaker 02:
And she mentions compensatory damages and attorney's fees.

[00:14:37] Speaker 02:
Well, sure, she was entitled to request those things before the board.

[00:14:42] Speaker 02:
But our point is that she did not actually request any of that relief before the board.

[00:14:50] Speaker 02:
There's no bifurcation of liability and- Or attorney's fees requested before the board.

[00:14:58] Speaker 02:
Nope.

[00:14:59] Speaker 02:
No, Your Honor.

[00:15:00] Speaker 02:
They were not.

[00:15:01] Speaker 04:
Is it part and parcel with a successful IRA appeal to the board that if you prevail on your whistleblower action that you under some statute are entitled to an attorney's fees automatically?

[00:15:15] Speaker 04:
Is there anything like that?

[00:15:18] Speaker 02:
No, your honor, it's not automatic.

[00:15:21] Speaker 02:
You're certainly entitled to request it, but a request has to be made and throughout the entire

[00:15:28] Speaker 02:
two years of administrative proceedings before the board.

[00:15:31] Speaker 02:
There was not one request for any form of relief, not compensatory damages, not consequential damages, not attorney's fees.

[00:15:40] Speaker 02:
The only thing that was requested was the back pay, which has now been waived.

[00:15:45] Speaker 00:
But why should a request for attorney's fees be barred at any point?

[00:15:51] Speaker 00:
She went through four years of up and down, all sorts of issues and events.

[00:15:57] Speaker 00:
that are barely outlined in the record before us.

[00:16:01] Speaker 00:
And this is the last stop.

[00:16:04] Speaker 00:
Why can't she request attorney's fees now?

[00:16:08] Speaker 02:
Well, it's too late, your honor, because that was a request that needed to be made before the board.

[00:16:13] Speaker 02:
Why is it too late?

[00:16:15] Speaker 02:
there's no longer any substantive relief left.

[00:16:20] Speaker 02:
So if it's just the attorney's fees that's the only remaining issue, this court's decision in Tunic holds that an interest in attorney's fees is not sufficient to create a case or controversy when there's no other substantive relief that can be awarded.

[00:16:39] Speaker 02:
And this court affirmed a dismissal on

[00:16:43] Speaker 05:
mootness grounds and uh... tunic versus mspb in two thousand and five cited in the news what council what happens if we are from today does that end all all litigation here all the moving pieces

[00:16:58] Speaker 02:
It does for this appeal.

[00:17:01] Speaker 02:
However, I should point out that there is still pending at the board because there was a lack of a quorum for many years that there's many cases that are still pending before the MSPB.

[00:17:16] Speaker 02:
And Ms.

[00:17:17] Speaker 02:
Moghadam, her first OSC complaint ripened into an MSPB appeal.

[00:17:25] Speaker 02:
And it was dismissed for lack of jurisdiction by the board judge.

[00:17:34] Speaker 02:
And there's an appending appeal before the full board that has not yet been resolved.

[00:17:39] Speaker 02:
The issues largely subsumed within the same ones that were litigated in this case.

[00:17:45] Speaker 02:
But nonetheless, your honest question was, would this end everything between, and the answer is no.

[00:17:52] Speaker 00:
Are you saying that's the place to request attorney's fees?

[00:17:56] Speaker 02:
Well, Your Honor, if she wanted attorney's fees in this action, she should have requested them in this action.

[00:18:01] Speaker 00:
If the statute entitles you to attorney's fees, why does it have to be pleaded?

[00:18:08] Speaker 02:
Your Honor, you're entitled to seek them under the statute.

[00:18:10] Speaker 02:
But you have to seek them.

[00:18:11] Speaker 00:
That isn't the words of the statute.

[00:18:14] Speaker 00:
Statute doesn't say you can ask for them.

[00:18:16] Speaker 00:
You can always ask for attorney's fees.

[00:18:19] Speaker 02:
sure and and and the statute doesn't say that statutes says whistleblowers are entitled to attorneys fees and miss mcdonough is no whistleblower your honor uh... sign on the merits decisions that she is a whistleblower there are decisions that she's not decisions that she is not not a one your honor not there is no decision that miss mcdonough is a whistleblower the administrative board that restored her to her position restored her

[00:18:48] Speaker 02:
because they found that the removal, uh, was not warranted.

[00:18:53] Speaker 00:
Whistleblowing was... So she wasn't a whistleblower.

[00:18:55] Speaker 00:
No, no, no.

[00:18:56] Speaker 00:
The issue of whistleblowing was always there.

[00:19:00] Speaker 02:
If I may, your honor.

[00:19:03] Speaker 02:
Whistleblowing was not an issue before the DAB.

[00:19:06] Speaker 02:
The DAB has no jurisdiction to consider whistleblower issues.

[00:19:09] Speaker 02:
It considered only whether the specifications of poor performance had been proven to its satisfaction.

[00:19:16] Speaker 00:
And her response was that because of her association with a known whistleblower, that that was a factor in the treatment she received.

[00:19:26] Speaker 02:
That was not the issue before the DAP.

[00:19:28] Speaker 02:
The issue before the DAP was whether the six specifications had been proven.

[00:19:32] Speaker 00:
He was saying the briefs misstated.

[00:19:35] Speaker 04:
I guess you're saying in front of the MSPB, yes, this whole whistleblower activity question was front and center.

[00:19:44] Speaker 04:
Yes.

[00:19:45] Speaker 04:
But in front of this other board, the disciplinary board, the DAB, there was nothing, that whole inquiry had nothing to do with her whistleblowing activity.

[00:19:55] Speaker 04:
It solely had to do with whether the decision to remove her was sound based on the specifications that were alleged for poor performance.

[00:20:05] Speaker 02:
Precisely, your honor.

[00:20:06] Speaker 04:
And the DAB said, no, we don't really think these specifications are adequately articulated or maybe there's some findings that are missing.

[00:20:15] Speaker 04:
And that's why they overturned the removal decision.

[00:20:21] Speaker 04:
But here in front of us is this parallel proceeding in front of the board, which is about alleged retaliation for whistleblowing activity.

[00:20:32] Speaker 02:
that's right your honor exactly and without any substantive relief uh... left that's been preserved for appeal uh... this case should be dismissed as mood but even if it's an appeal from the msvb is it not it is your honor and this case needs to have a case for controversy under article three and that's the issue is that the only relief she sought was back pay

[00:20:59] Speaker 02:
She did not appeal the adverse back pay findings and she didn't seek anything else.

[00:21:04] Speaker 02:
That's why this case is now moot.

[00:21:06] Speaker 00:
But even if the court... We're creating a situation that no employee can decipher and cope with as to, no, we have this agency and that agency and unless you do everything just as we at the last step said you should have done, you're not entitled to.

[00:21:28] Speaker 00:
come into court.

[00:21:31] Speaker 02:
How hard is it, Your Honor, to simply ask for the relief that you're seeking?

[00:21:36] Speaker 02:
That's all we're saying, Your Honor.

[00:21:38] Speaker 02:
It was not requested and it's not been preserved.

[00:21:41] Speaker 05:
Aren't you also saying that there's no finality in this case?

[00:21:45] Speaker 05:
I mean, if we affirm

[00:21:49] Speaker 05:
Does that render final the MSPB action?

[00:21:53] Speaker 05:
And you said no.

[00:21:55] Speaker 02:
Well, it would still be pending.

[00:21:57] Speaker 02:
I suppose that to the extent there is factual overlap between the two cases, there may be a lawyer arguing someday in the future about

[00:22:10] Speaker 02:
a collateral estoppel or some overlapping issue, but I have not studied that.

[00:22:16] Speaker 02:
And I can't speak to that.

[00:22:17] Speaker 02:
Ms.

[00:22:18] Speaker 04:
Mogan filed two different IRA appeals at the board.

[00:22:23] Speaker 04:
One of them is before us today.

[00:22:25] Speaker 04:
One of them is still pending at the board because due to the board's lack of a quorum for all these years, it's been just sitting there lurking at the board.

[00:22:36] Speaker 04:
And so in that sense, anything that Ms.

[00:22:39] Speaker 04:
Mogan

[00:22:40] Speaker 04:
wants to fight over, won't be completely over if this appeal were to be affirmed, because she still has this still pending IRA appeal lurking at the board in a parallel action.

[00:22:57] Speaker 05:
Then why are we hearing this?

[00:22:58] Speaker 05:
If there's really no finality here, there's no... Why are we here?

[00:23:07] Speaker 05:
You may not be the right person to ask that.

[00:23:09] Speaker 02:
That's the thrust of our mootness argument, Your Honor.

[00:23:14] Speaker 02:
Why are we here?

[00:23:15] Speaker 02:
There's no substance of relief left to be awarded.

[00:23:18] Speaker 05:
Well, it's not moot.

[00:23:19] Speaker 05:
I mean, there's no controversy.

[00:23:22] Speaker 05:
There's no finality here.

[00:23:24] Speaker 02:
Well, there was a board decision that Ms.

[00:23:25] Speaker 02:
Mogadam was not a whistleblower.

[00:23:28] Speaker 02:
and that the board had shown by clear and convincing evidence that it removed her because of poor performance, not because of any whistleblower activity.

[00:23:40] Speaker 02:
And presumably Ms.

[00:23:42] Speaker 02:
Moghadam has a right to appeal that decision.

[00:23:49] Speaker 02:
I don't take issue with that, but nonetheless,

[00:23:52] Speaker 02:
Article three remains and there needs to be a case of controversy.

[00:23:56] Speaker 02:
And that's the thrust of our mootness argument.

[00:24:01] Speaker 04:
There is some confusion here in the sense that when Ms.

[00:24:08] Speaker 04:
Mogaddon felt that she was mistreated by her employing agency, the VA,

[00:24:16] Speaker 04:
There are all these different routes she can take.

[00:24:18] Speaker 04:
She can go to the MSPB.

[00:24:20] Speaker 04:
She can go to this other tribunal called the DAB, the Disciplinary Appeal Board.

[00:24:26] Speaker 04:
And she went both.

[00:24:28] Speaker 04:
And then the Disciplinary Appeal Board said one thing.

[00:24:30] Speaker 04:
And then the MSPB ultimately said another thing in terms of the soundness of the removal decision.

[00:24:42] Speaker 04:
And so it just administratively looks confusing.

[00:24:46] Speaker 02:
Well, Ms.

[00:24:47] Speaker 02:
Mogadam does disagree with the board's finding that the DAB decision was not entitled to much probative weight.

[00:24:55] Speaker 02:
They did decide two different things about the strength of the agency's evidence.

[00:25:01] Speaker 02:
But the board found that the DAB decision in this case was poorly reasoned, poorly explained, and it was inconsistent with the evidence that was actually before that tribunal.

[00:25:14] Speaker 02:
And this standard of review that this court applies, if it reaches the merits, does not allow this court to reweigh the probative value of the DAB decision.

[00:25:25] Speaker 02:
She pursued extensively any and all litigation avenues available to her.

[00:25:33] Speaker 02:
No one begrudges her of that, but by the same token, there has to be a case for controversy and there isn't one here.

[00:25:40] Speaker 02:
The VA, just finally.

[00:25:44] Speaker 02:
I just want to put it out there that the VA did not discriminate against Ms.

[00:25:52] Speaker 02:
Mogadam or retaliate against her because of any protected activity.

[00:25:56] Speaker 02:
Ms.

[00:25:57] Speaker 02:
Mogadam's supervisor, Dr. Sohn, testified before the board credibly that Ms.

[00:26:03] Speaker 02:
Mogadam started, quote, on a clean slate, unquote, without regard for whatever happened in the past.

[00:26:11] Speaker 02:
And Dr. Sohn testified that she genuinely wanted Ms.

[00:26:15] Speaker 02:
Mogadam to succeed.

[00:26:17] Speaker 02:
She worked extensively with Ms.

[00:26:20] Speaker 02:
Mogadam to try and train her and help her, meeting with her daily.

[00:26:25] Speaker 02:
And yet, Ms.

[00:26:27] Speaker 02:
Mogadam was unable to handle more than nine out of the usual 25 patients that she was supposed to be responsible for.

[00:26:38] Speaker 00:
And so those are strong findings.

[00:26:41] Speaker 00:
MSPB administrative judge whose findings you're repeating.

[00:26:47] Speaker 00:
My understanding from other cases is that during these many years of the absence of a quorum of board members, that the rulings of the administrative judge could become final.

[00:27:01] Speaker 00:
But from what you have said today, you don't agree with that?

[00:27:08] Speaker 02:
Uh, your honor, I'm not sure I follow your question, but I will try.

[00:27:13] Speaker 02:
Um, the decision of the board, the administrative judge in this case became final because there was no appeal to the full board.

[00:27:24] Speaker 02:
There was no petition for review.

[00:27:25] Speaker 00:
There was no full board to appeal to.

[00:27:28] Speaker 02:
Well, she could have, she could have lodged a petition for review and it would have sat there like her first, uh,

[00:27:35] Speaker 02:
like her first board appeal, which where she did- It was in her favor.

[00:27:41] Speaker 02:
No, it dismissed for lack of jurisdiction.

[00:27:44] Speaker 02:
There is no decision in favor of Ms.

[00:27:47] Speaker 02:
Moghadam on any whistleblower issue in existence.

[00:27:52] Speaker 02:
It doesn't exist, Your Honor.

[00:27:56] Speaker 02:
And for these reasons, the court should dismiss this appeal as moot or affirm the well-reasoned decision of the board.

[00:28:03] Speaker 00:
Thank you.

[00:28:05] Speaker 00:
Okay.

[00:28:06] Speaker 01:
I would like to just comment on the DAB and the MSPB decision and how we argue this should come together.

[00:28:17] Speaker 01:
I think we need to take a step back here and just think of what the MSPB judge concluded here.

[00:28:23] Speaker 01:
The agency had an exceptionally high burden of clear and convincing evidence

[00:28:27] Speaker 01:
their burden to prove that they would have removed her absent of the prima facie finding of whistleblowing.

[00:28:35] Speaker 01:
Yet internally by subject matter experts unanimously, she was returned to work.

[00:28:42] Speaker 01:
So it's very difficult for us to comprehend how the MSPB judge concluded

[00:28:48] Speaker 01:
that there was clear and convincing evidence of her removal when she's still working there.

[00:28:53] Speaker 01:
And that is an egregious finding for us.

[00:28:57] Speaker 01:
And it is a dangerous decision that will show whistleblowers.

[00:29:02] Speaker 01:
And I think the council made a very good point here to the point that I was making before.

[00:29:07] Speaker 01:
There's been no finding that she has been a whistleblower.

[00:29:11] Speaker 01:
And Congress has clearly set forth a mandate

[00:29:15] Speaker 01:
strong public policy decisions that there needs to be protections for whistleblowers.

[00:29:21] Speaker 05:
Are you asking us for some sort of declaration that she's a whistleblower?

[00:29:26] Speaker 01:
We're not asking for a declaration.

[00:29:27] Speaker 01:
We're asking for the board's own corrective finding that she was terminated because she was a whistleblower.

[00:29:39] Speaker 01:
That's what we're asking for.

[00:29:41] Speaker 01:
A couple of points that I would like to comment as well with regards to the Tunic decision, which was made in 2005, before there was an amendment to the WPA in 2012, clearly setting forth, in addition to attorney fees, compensatory damages.

[00:29:56] Speaker 01:
So there's no case that they cited since the amendment, since the compensatory damages was added there about mootness.

[00:30:03] Speaker 05:
And at the same time, Tunic... You could have argued attorney fees below.

[00:30:09] Speaker 05:
And we started this dialogue with you with my asking you, what are you looking for?

[00:30:15] Speaker 05:
What's your relief?

[00:30:16] Speaker 05:
And you didn't even say attorney's fees.

[00:30:18] Speaker 05:
You didn't.

[00:30:20] Speaker 05:
And you said compensatory damages.

[00:30:22] Speaker 05:
And now you're asking us to make declarations on facts and you're asking us to resurrect or to establish some sort of claim for attorney's fees that you yourself haven't even asserted until now.

[00:30:39] Speaker 05:
This is a situation that looks like you understand the term blown by your own peat heart, right?

[00:30:50] Speaker 01:
I understand that perception of this.

[00:30:55] Speaker 01:
What we're arguing is that

[00:30:57] Speaker 01:
It could not have been envisioned by Congress to simply let agencies off the hook by having an internal review board send someone back to work and find that there's no whistle blowing.

[00:31:10] Speaker 01:
That could not have been the intent of Congress in this case.

[00:31:13] Speaker 01:
With regards to attorney fees, to clarify, in addition to compensatory damages, she will be seeking attorney fees and she does not have to claim attorney fees until 30 days after there's a finding of jurisdiction in this case.

[00:31:26] Speaker 01:
So we disagree with the government's contention that that was waived.

[00:31:31] Speaker 01:
They were not able to cite to any sort of authority saying that that's not the case.

[00:31:36] Speaker 01:
And that's how I've always understood that this has to proceed.

[00:31:40] Speaker 01:
Once there's a jurisdiction, then you go to damages and recovery.

[00:31:46] Speaker 01:
Board never found jurisdiction here?

[00:31:47] Speaker 01:
The board never found jurisdiction here because the court sustained the government's affirmative defense that they would have removed her irrespective of the prima facie evidence of whistle-blowing.

[00:32:02] Speaker 03:
There was never a finding of jurisdiction.

[00:32:03] Speaker 03:
I thought in order to make that kind of finding, they have to find that they have jurisdiction to make such a finding.

[00:32:08] Speaker 01:
Well, the jurisdiction, they have to find that she had a prima facie evidence of whistle-blowing, which

[00:32:16] Speaker 01:
the MSPB judge did in this case, and then have to find that the agency did not meet its high burden of clear and convincing evidence that it would have done so anyway.

[00:32:27] Speaker 04:
I guess I'm just saying that sounds more like an overall ultimate merits determination rather than an underlying jurisdiction determination.

[00:32:34] Speaker 01:
In most courts, that is the case, but not with the MSPB.

[00:32:39] Speaker 01:
And it was determined that the term jurisdiction in MSPB means you have to find those

[00:32:47] Speaker 01:
those merits assessments.

[00:32:48] Speaker 01:
So no, she did not find jurisdiction in this case.

[00:32:54] Speaker 01:
I'll also.

[00:32:55] Speaker 00:
It's still not clear to me.

[00:32:59] Speaker 00:
Your position, you generally accept that there is still an outstanding appeal from the administrative judge to the full board available?

[00:33:12] Speaker 01:
I believe that there could be.

[00:33:14] Speaker 01:
However, the reason that

[00:33:17] Speaker 01:
that we're here is she is seeking corrective action that she was a whistleblower.

[00:33:23] Speaker 01:
And a good question that was asked to the government was, well, is this over?

[00:33:30] Speaker 01:
And another way to look at this is, no, this is far from over, because as I indicated, she still could bring claims that she was a whistleblower based on other personal actions that have since occurred, which

[00:33:44] Speaker 01:
is why she's here.

[00:33:45] Speaker 01:
She believes that that has happened.

[00:33:47] Speaker 01:
She's still being retaliated against.

[00:33:49] Speaker 01:
And that's why she's seeking this relief, which we believe she's entitled to by Congress congressional intent.

[00:33:56] Speaker 00:
Any more questions?

[00:33:58] Speaker 00:
Any more questions for counsel?

[00:34:00] Speaker 00:
OK.

[00:34:00] Speaker 00:
Thank you.

[00:34:01] Speaker 00:
Thanks to both counsel.

[00:34:03] Speaker 01:
Thank you very much.

[00:34:04] Speaker 00:
We'll be presenting the cases taken under submission.

[00:34:07] Speaker 00:
And that concludes this panel's argued cases for this morning.