[00:00:00] Speaker 03:
Our first case for argument today is 22-1271.

[00:00:05] Speaker 03:
Please say the name of your client, counsel.

[00:00:08] Speaker 03:
I don't know how to pronounce it.

[00:00:11] Speaker 00:
Hi.

[00:00:12] Speaker 03:
OK, so the first case is Bessansone versus DHS.

[00:00:17] Speaker 03:
Mr. Harrington, please proceed.

[00:00:20] Speaker 00:
Good morning, Your Honors.

[00:00:21] Speaker 00:
John Harrington for Appellant Mark Bessansone.

[00:00:24] Speaker 00:
May it please the court?

[00:00:26] Speaker 00:
The Merit Systems Protection Board erred in not finding that Mr. Basansini, a special investigator for the TSA, engaged in protected activity under the WPEA.

[00:00:37] Speaker 00:
Mr. Basansini, a seasoned investigator with 40 years of law enforcement experience, was leading an investigation of baggage thefts at LaGuardia Airport.

[00:00:50] Speaker 00:
And his supervisors, Tom Williams and Jeff Facy,

[00:00:55] Speaker 00:
pressured him to obtain search warrants of the homes of... Council, we know the facts.

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

[00:01:03] Speaker 02:
But the Board found there were no protected disclosures.

[00:01:08] Speaker 02:
There were either policy disagreements, which aren't evidence of illegal or improper activity, or simply a failure of proof of the number of items that were alleged.

[00:01:24] Speaker 00:
Well, we certainly believe that the board erred in coming to those conclusions, particularly with regard to the issue of whether a search warrant was justifiable under the circumstances in the investigation.

[00:01:39] Speaker 00:
Mr. Basancini objected.

[00:01:41] Speaker 04:
Isn't the question not for whether a search warrant was warranted, but to collect the evidence and then present it to somebody, I think in the attorney general's office, I think, who would then determine whether a warrant was appropriate.

[00:01:55] Speaker 00:
That is the position put forward by TSA, but that's not what happened.

[00:02:01] Speaker 00:
Mr. Basantini clearly told his supervisors that there was insufficient evidence to obtain a search warrant.

[00:02:07] Speaker 03:
Is Mr. Basantini a lawyer?

[00:02:09] Speaker 00:
He is not, Your Honor.

[00:02:10] Speaker 03:
So he's not a lawyer.

[00:02:11] Speaker 03:
So his supervisors told him to consult a lawyer about whether we could obtain a search warrant, right?

[00:02:18] Speaker 00:
Well, this was after they pressured him to obtain a search warrant.

[00:02:22] Speaker 03:
How did they pressure him to obtain a search warrant?

[00:02:24] Speaker 03:
He can't obtain a search warrant.

[00:02:25] Speaker 03:
He's not a lawyer.

[00:02:26] Speaker 03:
He can't go before a judge and get a search warrant, right?

[00:02:28] Speaker 00:
They told him to proffer information that a search warrant that there was probable cause for a search warrant.

[00:02:34] Speaker 03:
I think they told him to review the footage and then take his results to the AUSA and see if a search warrant could be obtained.

[00:02:43] Speaker 00:
Respectfully, Your Honor, I understand that's what TSA has argued here.

[00:02:47] Speaker 00:
That's not what happened.

[00:02:49] Speaker 00:
Mr. Basancini had reviewed the evidence and there was... Who cares whether Mr. Basancini had reviewed the evidence?

[00:02:56] Speaker 03:
It's not his job for him to assess whether there's probable cause.

[00:03:00] Speaker 03:
It's the AUSA's job.

[00:03:01] Speaker 03:
So what his supervisors were asking him to do is collect the evidence and present it to the attorney who would make the decision about whether there's probable cause.

[00:03:09] Speaker 00:
That is what TSA has argued after the fact, Your Honor.

[00:03:12] Speaker 04:
Isn't that what the facts were as found by the Merit Systems Protection Board?

[00:03:18] Speaker 04:
And those aren't challenged.

[00:03:20] Speaker 04:
I don't see you challenging, you know, the basic facts as reiterated by Chief Judge Moore today.

[00:03:28] Speaker 04:
Those seem to be the facts that the board found when I read their opinion.

[00:03:32] Speaker 04:
That's what that board indicates as the fact findings is what occurred.

[00:03:36] Speaker 04:
So I think we have to accept those.

[00:03:39] Speaker 00:
I disagree, Your Honor.

[00:03:41] Speaker 00:
I believe that the judge made errors of law and of fact.

[00:03:45] Speaker 04:
Okay.

[00:03:46] Speaker 04:
But you haven't challenged the basic facts we're talking about right now, which are that Mr. Basanchini was asked to look in video footage for the purposes of collecting evidence to talk to the AUSA about a search warrant.

[00:04:04] Speaker 04:
Right?

[00:04:05] Speaker 00:
That is a piece of the factual record.

[00:04:08] Speaker 00:
It is not the record.

[00:04:09] Speaker 04:
That's fine, but it is facts that you haven't challenged, right?

[00:04:13] Speaker 04:
I know there's other facts.

[00:04:14] Speaker 04:
I just want to make sure that you've identified certain issues on appeal.

[00:04:21] Speaker 04:
You're not allowed to raise new ones here before us.

[00:04:24] Speaker 04:
And if we can't even get through the basic facts, that's going to be problematic.

[00:04:29] Speaker 00:
I understand, Your Honor.

[00:04:30] Speaker 00:
And I think the basic fact at issue here

[00:04:33] Speaker 00:
is whether there was probable cause based on the evidence before Mr. Basantini that would justify a search warrant of these two suspects homes.

[00:04:42] Speaker 00:
And he argued with his supervisors that there was not.

[00:04:45] Speaker 04:
I know, but how does, why is that then not, I think the issue actually isn't quite that, but the issue is whether there was a disclosure satisfying 2302A2D, which would mean not a communication concerning policy decisions.

[00:05:02] Speaker 04:
or something that reasonably is believed to be gross mismanagement.

[00:05:07] Speaker 00:
And this was a disagreement about whether there was or was not probable cause that involved a legal standard established by the US Constitution.

[00:05:16] Speaker 00:
And Mr. Basancini was objecting that there was no probable cause.

[00:05:20] Speaker 00:
And it went beyond a policy disagreement.

[00:05:22] Speaker 00:
And certainly, the jurisprudence is clear that the two things are not mutually exclusive.

[00:05:26] Speaker 04:
So the question, what is the standard of review we apply?

[00:05:30] Speaker 04:
to the board's decision that that was a policy disagreement.

[00:05:35] Speaker 00:
Well, I think in terms of, the judge made several different errors here.

[00:05:39] Speaker 00:
I mean, first, she made a legal error in determining that Mr. Basancini had not specifically identified a particular law or rule of regulation, which he's not required to do.

[00:05:49] Speaker 00:
And I think the standard of review there should be

[00:05:53] Speaker 00:
Um, the standard that applies to just a legal error in a situation like that.

[00:05:57] Speaker 04:
And I think she also made... What about the factual question of whether there is a, it was a policy decision?

[00:06:05] Speaker 00:
Um, the standard of review, whether she made an error in analyzing and considering those facts.

[00:06:13] Speaker 04:
And the standard of view, substantial evidence.

[00:06:15] Speaker 04:
We look to see whether there's substantial evidence to support that fact-finding, right?

[00:06:20] Speaker 04:
Yes, Your Honor.

[00:06:20] Speaker 04:
Okay.

[00:06:22] Speaker 00:
And Mr. Basancini, we argue, and the record presented at the hearing establishes it, that he made these protective disclosures numerous times to his supervisors in various meetings.

[00:06:35] Speaker 00:
And the board also erred in not analyzing or even considering the evidence of a causal link between what we argue with the protective disclosures

[00:06:46] Speaker 00:
and the prohibited personal practices.

[00:06:49] Speaker 03:
And there was... What was the protected disclosure regarding this issue?

[00:06:55] Speaker 00:
The protected disclosure was that he was objecting, that he was being asked to violate the legal standard established by the US Constitution in asserting that there was probable cause to search... They didn't ask him to assert there was probable cause.

[00:07:08] Speaker 03:
There's no evidence in this record they asked him to assert there was probable cause.

[00:07:11] Speaker 03:
Not even his testimony says that.

[00:07:16] Speaker 00:
They told him to get search warrants for these suspect's homes.

[00:07:20] Speaker 00:
He told them the evidence did not justify that.

[00:07:23] Speaker 03:
I'm sorry.

[00:07:24] Speaker 03:
Were his supervisors, he was told to review the surveillance footage, catalog his findings, so that AUSA could assess whether the evidence supported a search warrant.

[00:07:38] Speaker 00:
That was part of what happened after Mr. Basancini objected to being told to get search warrants.

[00:07:46] Speaker 00:
Mr. Basancini initially was told to get search warrants.

[00:07:50] Speaker 03:
Well, maybe he was initially told to get search warrants, but then his supervisors backed down from that and said, okay, instead, even if what you're saying is true, they said, review the footage and take it to the AUSA.

[00:08:05] Speaker 00:
That was after Mr. Basancini engaged in protective activity by objecting to getting search warrants.

[00:08:11] Speaker 00:
And then they retaliated against him in close temporal proximity after that investigative step occurred.

[00:08:20] Speaker 00:
And we believe that the board also erred in not analyzing and considering the evidence of the causal link between the two.

[00:08:28] Speaker 04:
But how would you even get, now let's assume for a minute, just assuming.

[00:08:35] Speaker 04:
that the board was correct, that there was no protected disclosure.

[00:08:39] Speaker 04:
What is your basis for saying, even if there is no protected disclosure, you still need to look at whether there's a causal link?

[00:08:49] Speaker 00:
Well, the judge should have considered the evidence that there was a causal link.

[00:08:54] Speaker 00:
I think it was error not to even evaluate that evidence.

[00:08:59] Speaker 04:
But answer my hypothetical for a minute.

[00:09:02] Speaker 04:
What is your basis for saying

[00:09:04] Speaker 04:
Assuming, I understand you'd challenge whether there was a protected disclosure, but assuming there was not and the board was correct with that, then why did the board have to go on to look at other evidence regarding a causal link?

[00:09:20] Speaker 00:
Well, Your Honor, I suppose the administrative judge was not required to engage in that analysis if she had decided there were no protected disclosures.

[00:09:30] Speaker 00:
I think it's a better course of action so that if there is a remand in this case, the evidence would have been clear here and the record would have been clear.

[00:09:39] Speaker 00:
And I think it was a failure to not even consider his evidence of the causal link and the contributing factor analysis that we think should have been done.

[00:09:50] Speaker 00:
But the underlying area here is the failure to find a protected activity.

[00:10:00] Speaker 00:
Although his supervisors backed off and told him to go back and look at this again, they had initially pressured him to get the search warrants.

[00:10:11] Speaker 00:
And doing so would have required him to provide a false affidavit that there was evidence that these items could be found at the suspect's home.

[00:10:20] Speaker 03:
You're telling me they asked him to provide a false affidavit?

[00:10:23] Speaker 00:
They told him to get search warrants, which would have required that affidavit.

[00:10:26] Speaker 03:
So let's look at page 1049 of the appendix.

[00:10:28] Speaker 00:
Do you have page 1049 of the appendix handy?

[00:10:30] Speaker 03:
You don't have the appendix?

[00:10:31] Speaker 00:
I do not.

[00:10:37] Speaker 03:
Ultimately, government, do you happen to have a copy of the appendix that you might share with?

[00:10:40] Speaker 01:
I'll turn this to the patient.

[00:10:44] Speaker 03:
There you go.

[00:10:44] Speaker 03:
1049.

[00:10:45] Speaker 03:
This is the testimony of your client.

[00:10:50] Speaker 03:
My question is simple.

[00:10:51] Speaker 03:
This is on 1049 page

[00:10:54] Speaker 03:
But right at the top, question one.

[00:10:56] Speaker 03:
And Mr. Williams never instructed you, okay?

[00:10:58] Speaker 03:
He never instructed you to misrepresent facts to a judge, correct?

[00:11:01] Speaker 03:
Yes, but he didn't understand also that a judge needed to see.

[00:11:04] Speaker 03:
That's not my question.

[00:11:06] Speaker 03:
My question is simply, did he instruct you to misrepresent facts to a judge?

[00:11:09] Speaker 03:
And you said no.

[00:11:10] Speaker 03:
No, I didn't.

[00:11:10] Speaker 03:
Now, Mr. Vassi, did he ever instruct you to misrepresent facts to a prosecutor?

[00:11:16] Speaker 03:
No.

[00:11:16] Speaker 03:
Did Mr. Vassi ever instruct you to misrepresent facts to a judge?

[00:11:19] Speaker 03:
No.

[00:11:20] Speaker 03:
So they both never instructed you to lie in an affidavit, correct?

[00:11:25] Speaker 03:
That's correct.

[00:11:26] Speaker 03:
That's his testimony.

[00:11:28] Speaker 00:
It is his testimony, Your Honor.

[00:11:29] Speaker 03:
And his testimony is that he was never pressured to lie or make any false representations to a judge or a prosecutor.

[00:11:37] Speaker 00:
His testimony was that he did not receive these specific instructions.

[00:11:44] Speaker 00:
But he was told to get the search warrants without receiving.

[00:11:46] Speaker 00:
They never said, Mr. Sancentini, misrepresent facts to the proper authority to get a search warrant.

[00:11:54] Speaker 00:
He did not receive those explicit instructions.

[00:11:57] Speaker 00:
Nonetheless, we believe the record shows that he was pressured to obtain the search warrants without explicitly being told to misrepresent in an affidavit.

[00:12:07] Speaker 00:
But obtaining the search warrants would have required him to do that.

[00:12:11] Speaker 04:
One of these, only one of these questions talks about an affidavit, by the way.

[00:12:17] Speaker 04:
But he just says never instructed, never instructed you to misrepresent.

[00:12:23] Speaker 00:
Mr. Basanchini testified that his supervisors never told him explicitly misrepresent facts or misrepresent evidence.

[00:12:29] Speaker 04:
Could Mr. Basanchini receive a warrant without going to the AUSA?

[00:12:37] Speaker 00:
I don't believe he could have, Your Honor.

[00:12:41] Speaker 04:
But the question was... So all we could do was provide evidence to the AUSA who would then make a determination on whether to issue a warrant.

[00:12:50] Speaker 00:
But Mr. Vastancini knew that that evidence... Was that a yes?

[00:12:52] Speaker 00:
Just answer my question first.

[00:12:54] Speaker 00:
Yes.

[00:12:54] Speaker 00:
Okay.

[00:12:54] Speaker 00:
Thank you.

[00:12:55] Speaker 00:
And if I may, Mr. Vastancini knew that he did not have that evidence, which was at the heart of his disagreement with his supervisors and his

[00:13:07] Speaker 04:
Where is the testimony in the record where he says, I knew that I didn't have this evidence even without looking at the video footage?

[00:13:16] Speaker 00:
Where is that?

[00:13:16] Speaker 00:
I can't give you a citation, Your Honor.

[00:13:18] Speaker 00:
I can't give you a citation to the record.

[00:13:21] Speaker 00:
But certainly, he testified that the evidence could not be traced to the suspect's homes.

[00:13:26] Speaker 00:
And that was the core of the issue here in terms of whether a consent search was justified or whether a search warrant at the homes was justified.

[00:13:35] Speaker 00:
because there was no evidence as Mr. Basanthi testified at the hearing to establish where these stolen items could currently be found.

[00:13:46] Speaker 00:
And reviewing the surveillance footage for any extended period of time beyond how it had already been reviewed would have done nothing to establish that these items could be found at the suspect's homes.

[00:13:58] Speaker 03:
Council, would you like to save the remainder of your time for a battle?

[00:14:01] Speaker 00:
I would thank you, Your Honor.

[00:14:02] Speaker 03:
OK.

[00:14:02] Speaker 03:
Ms.

[00:14:02] Speaker 03:
Moses.

[00:14:03] Speaker 00:
Thank you, Ms.

[00:14:04] Speaker 00:
Moses.

[00:14:04] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:14:08] Speaker 01:
Your Honors, we have many meritorious arguments in our brief, and we think they all merit your attention.

[00:14:14] Speaker 01:
But an utterly decisive point in this case is that in Mr. Basancini's OSC complaint at Appendix Page 26, the question is asked,

[00:14:30] Speaker 01:
When did personnel actions or threats occur?

[00:14:34] Speaker 01:
His answer, the retaliation began in December 2017 and continues to date.

[00:14:41] Speaker 01:
The first five of Mr. Basantini's alleged protected disclosures occurred before December 2017.

[00:14:54] Speaker 04:
I'm going to interrupt you for a minute.

[00:14:57] Speaker 04:
I don't think this is the basis for the board's opinion.

[00:15:00] Speaker 01:
Am I wrong?

[00:15:02] Speaker 01:
It's not the basis for the board's opinion.

[00:15:04] Speaker 01:
It's something I wanted to point out to Your Honor.

[00:15:07] Speaker 04:
I mean, I agree with you.

[00:15:08] Speaker 04:
I noticed that myself when reviewing the record.

[00:15:11] Speaker 04:
But since we're going to just, I think we have to just focus on what the board actually found and whether that finding is supported by substantial evidence.

[00:15:20] Speaker 01:
Yes, Your Honor.

[00:15:22] Speaker 01:
Mr. Basansini cannot convincingly

[00:15:25] Speaker 01:
convincingly argue that he reasonably believed that his disclosures were evidence of agency wrongdoing.

[00:15:34] Speaker 01:
By his own words, the alleged mismanagement of the investigation, again, that concerns disclosures one through five, was a dispute over, quote, investigative strategy.

[00:15:47] Speaker 01:
And that can be found at appendix pages 734 and 1062.

[00:15:54] Speaker 01:
These disclosures are explicitly excluded from the definition of a protected disclosure under the statute.

[00:16:01] Speaker 01:
Disclosures concerning a supervisor's discretionary decisions, challenged by subordinates, are not protected under the statute.

[00:16:11] Speaker 04:
What about an issue raised albeit late in the amicus brief

[00:16:18] Speaker 04:
with regard to Mr. Basansi's disclosure to the Office of Inspector General and whether it has to satisfy the requirements for a disclosure under 2302A2D.

[00:16:30] Speaker 04:
It doesn't, right?

[00:16:31] Speaker 04:
I mean, that's undisputedly what the board did there was indisputedly incorrect.

[00:16:36] Speaker 04:
It might not be properly before us because it wasn't raised on appeal.

[00:16:40] Speaker 04:
But I understand the government to totally agree with the amicus briefs reading of the statute.

[00:16:46] Speaker 04:
Am I right?

[00:16:47] Speaker 01:
We do agree, Your Honor.

[00:16:48] Speaker 01:
We agree that the wrong test was applied, that the OIG complaint would be a protected activity under the statute, and that the reasonable belief test that the board applied is not applicable.

[00:17:04] Speaker 01:
We would agree.

[00:17:05] Speaker 01:
And as we argue in our brief, we believe

[00:17:08] Speaker 01:
This is not grounds for reversal, because Mr. Basansone cannot show that the outcome of his appeal would have been different had the board applied the correct standard.

[00:17:21] Speaker 03:
Oh, wait.

[00:17:21] Speaker 03:
I thought your first argument was he never waived this argument, and therefore it's waived.

[00:17:26] Speaker 03:
And then Lucas can't raise at the appellate level an argument on behalf of the client that they don't represent.

[00:17:31] Speaker 01:
Yes, Your Honor.

[00:17:32] Speaker 01:
Judge Stoll had mentioned that.

[00:17:34] Speaker 01:
So I just went right into it.

[00:17:37] Speaker 01:
some of our other argument pertaining to that.

[00:17:41] Speaker 01:
But yes, it is our position that not only is the amicus party cannot raise it, it's also waived by Mr. Passantini.

[00:17:48] Speaker 01:
And the third argument is that it's harmless error nonetheless.

[00:17:55] Speaker 01:
After reading the record, one is left with the impression

[00:17:59] Speaker 01:
that Mr. Basantini is exaggerating the significance of an entirely ordinary situation.

[00:18:05] Speaker 01:
He and his supervisors disagreed about how they would pursue the baggage theft investigation, and healthy discourse certainly is appropriate, especially in a law enforcement agency.

[00:18:20] Speaker 01:
Mr. Basantini appears to have unpleasant feelings.

[00:18:23] Speaker 01:
about the supervisor's disagreement about how they would approach the suspects, whether it would be through a search warrant or a consent search.

[00:18:35] Speaker 03:
But he has failed to... The curiosity, the consent search that he wanted to conduct, was he requesting a consent search of their properties?

[00:18:41] Speaker 01:
Yes, Your Honor.

[00:18:42] Speaker 01:
His operational plan was to arrive at the suspect's home and ask whether they would agree to

[00:18:53] Speaker 01:
let the investigators search their homes.

[00:18:57] Speaker 03:
And I wouldn't let them do that, even if I had done nothing wrong.

[00:19:00] Speaker 03:
But if you've got these guys on tape rolling out the luggage in one universe, they could be like, yeah, sure, come on in.

[00:19:05] Speaker 03:
Search my house.

[00:19:07] Speaker 01:
Sure.

[00:19:07] Speaker 01:
And yes, your honor, I agree.

[00:19:09] Speaker 01:
And even more egregiously, Mr. Bassancini's supervisors were not aware of Mr. Bassancini's position on this until the pre-briefing,

[00:19:21] Speaker 01:
hours before they were intending to execute this operational plan.

[00:19:28] Speaker 03:
The suspects were on tape sort of rolling the luggage out of baggage claim, right?

[00:19:33] Speaker 03:
Is that the case?

[00:19:36] Speaker 01:
I'm not sure exactly what the footage showed, and as the record reflects, Mr. Basantini didn't review the surveillance footage or make the proper notations that were required.

[00:19:48] Speaker 01:
in order to pass along that information to an assistant US state's attorney to make a probable cause determination.

[00:19:56] Speaker 03:
Well, I'm confused.

[00:19:58] Speaker 03:
I thought that this record included footage that suggested that a couple of individuals had wrongfully taken luggage from the baggage claim area.

[00:20:08] Speaker 03:
So somebody must have seen this footage or something to come to that conclusion.

[00:20:13] Speaker 01:
Oh, yes, Your Honor.

[00:20:14] Speaker 01:
Yes.

[00:20:15] Speaker 01:
JetBlue Security at the LaGuardia Airport had reviewed the evidence and passed it along to be reviewed and move forward with the investigation.

[00:20:27] Speaker 01:
Unless there are any further questions, we will submit a respondent's case on the brief and ask the court to affirm the board's decision.

[00:20:39] Speaker 03:
OK.

[00:20:40] Speaker 03:
Thank you, Ms.

[00:20:40] Speaker 03:
Moses.

[00:20:41] Speaker 03:
Mr. Harrington, you have some rebuttal time.

[00:20:44] Speaker 00:
I just wanted to acknowledge that clearly there was a policy disagreement here about the best course to take in the investigation, but as we have argued, we believe there was also a protected disclosure involved.

[00:21:00] Speaker 00:
And the two things are not mutually exclusive, as I mentioned earlier, and Congress made that explicit when they enacted the Enhancement Act for the WPEA.

[00:21:11] Speaker 00:
several years ago in 2012.

[00:21:12] Speaker 00:
So the two things are not mutually exclusive, and we believe they both occurred here.

[00:21:19] Speaker 00:
And although there was some animosity between Mr. Bisantini and his supervisors predating his protected disclosures regarding the search of these suspects' homes, his pushback on seeking a search warrant

[00:21:36] Speaker 00:
certainly was a contributing factor to the prohibited personal actions that occurred after he engaged in this protected activity.

[00:21:44] Speaker 00:
And again, we believe that the board should have considered his counter-revealing evidence and analyzed it in its decision, and the judge did not do so.

[00:21:54] Speaker 00:
Respectfully, unless there are any other questions, I will leave it at that.

[00:22:01] Speaker 03:
Okay.

[00:22:02] Speaker 03:
I thank both counsels.

[00:22:03] Speaker 03:
This case is taken under submission.

[00:22:04] Speaker 00:
Thank you.