[00:00:00] Speaker 04:
I'm going to botch this.

[00:00:02] Speaker 04:
Sorry.

[00:00:02] Speaker 04:
Ciara Dona versus the Department of Veterans Affairs.

[00:00:07] Speaker 04:
Mr. Tubman, when you're ready.

[00:00:09] Speaker 04:
And can you correct me on your client's last name?

[00:00:12] Speaker 02:
Thank you, Your Honor.

[00:00:13] Speaker 02:
You're pretty close.

[00:00:16] Speaker 02:
OK.

[00:00:16] Speaker 02:
Sheriff Dona.

[00:00:18] Speaker 02:
Sheriff Dona.

[00:00:18] Speaker 02:
Like Sheriff.

[00:00:20] Speaker 02:
Thank you.

[00:00:21] Speaker 02:
Morning, Your Honor.

[00:00:22] Speaker 02:
May it please the Court, I've reserved five minutes for rebuttal.

[00:00:29] Speaker 02:
I'm here today on behalf of Ms.

[00:00:31] Speaker 02:
Sheridano, who is a nurse practitioner, and she's appealing the denial of her whistleblower claim.

[00:00:39] Speaker 02:
She previously, she'd worked for the VA literally days short of her two-year probation, ending

[00:00:45] Speaker 02:
And for over a year she was a successful nurse practitioner in California.

[00:00:51] Speaker 02:
She moved to Florida and she chose to work in orthopedics, something she had no experience in, she had never done before.

[00:01:01] Speaker 02:
She worked at basically a satellite facility in Lee County, the Lee County Medical Facility.

[00:01:09] Speaker 02:
which is a satellite facility of the Bay Pines VA Hospital in Tampa Bay, about two and a half hours away.

[00:01:17] Speaker 02:
And the main thrust of her appeal, as you see in the briefs, is the failure of the administrative judge to consider and rope into the analysis of the decision to deny her appeal the merit system principles, which are principles that apply to all federal employees.

[00:01:44] Speaker 02:
Contrary to the agency's position, we're not re-arguing facts here.

[00:01:49] Speaker 02:
What we are doing is taking facts that are established, that everyone basically stipulates to, and applying those facts to a legal analysis of the merit system principles.

[00:02:04] Speaker 02:
Those are found in 5 U.S.C.

[00:02:06] Speaker 02:
2301B.

[00:02:09] Speaker 02:
And there's basically nine different principles.

[00:02:11] Speaker 04:
Let me be completely honest.

[00:02:14] Speaker 04:
I do not understand this argument at all.

[00:02:16] Speaker 04:
This is a whistleblower appeal, right?

[00:02:17] Speaker 04:
Yes, Your Honor.

[00:02:18] Speaker 04:
And so she was removed, which is a personnel action.

[00:02:23] Speaker 04:
She established that she made a disclosure that was a contributing factor, and then the agency

[00:02:29] Speaker 04:
According to the administrative judge met its burden of proving by clear and convincing evidence that it would have taken this action otherwise What did the merit sensible systems principles have to do with whether or not the agency would have taken this removal action?

[00:02:43] Speaker 04:
I

[00:02:44] Speaker 02:
The primary one is training, adequate training.

[00:02:47] Speaker 02:
And that really affects much of the case, or the appeal, in the sense that you're talking about an individual that had no prior orthopedic.

[00:02:57] Speaker 04:
I get this, but I don't understand the connection.

[00:02:59] Speaker 04:
Even if we agree with you that she didn't get adequate training, the agency still set forth facts showing why they removed her.

[00:03:09] Speaker 04:
But she wasn't performing her duties.

[00:03:12] Speaker 04:
She had all kinds of problems.

[00:03:13] Speaker 04:
And the administrative judge wrote an incredibly detailed, exhaustive decision here.

[00:03:19] Speaker 04:
It's one of the lengthier decisions I've seen supporting this.

[00:03:23] Speaker 04:
And he set forth, or she set forth, I forget which it is, numerous reasons why the agency met its burden.

[00:03:30] Speaker 04:
Even if the agency didn't train her properly, that's not a defense.

[00:03:37] Speaker 04:
This is not a removal action.

[00:03:38] Speaker 04:
You're not defending against her removal because she didn't have a right to appeal her removal.

[00:03:43] Speaker 04:
If this was a removal, maybe you could have shown as an affirmative defense that she wasn't trained properly.

[00:03:49] Speaker 04:
But why these things?

[00:03:52] Speaker 04:
Try one more time to explain to me how failing to train her impacted the agency's proof that it would have removed her for all the problems it demonstrated.

[00:04:02] Speaker 02:
I think the merit system principles give you context and environment in which that training, how it should occur.

[00:04:08] Speaker 02:
And the VA has set up what's called, and you'll see it's ad nauseum in the brief, the FPPEs, the Focused Professional Evaluations, essentially.

[00:04:20] Speaker 02:
And those are supposed to be done at the beginning of an employee's tenure or employment.

[00:04:28] Speaker 02:
And ultimately, the basis is to give them feedback.

[00:04:33] Speaker 02:
Here's what's wrong.

[00:04:33] Speaker 02:
Here's what you're not doing right.

[00:04:36] Speaker 02:
And as Dr. Hong, the chief of surgery, had testified to, yes, they get the FPPE.

[00:04:42] Speaker 02:
It is a helpful tool.

[00:04:44] Speaker 02:
And they sign off on it at the beginning.

[00:04:46] Speaker 02:
The employee does.

[00:04:47] Speaker 02:
Michelle Adano did.

[00:04:49] Speaker 02:
And they did five FPPs on her.

[00:04:54] Speaker 03:
What does any of that have to do with the legal challenge you're raising?

[00:04:58] Speaker 03:
under the Whistleblower Protection Act.

[00:05:01] Speaker 02:
Because the merit system principles still have, this court has a jurisdiction, and they do apply to Whistleblower Act.

[00:05:09] Speaker 02:
It's 2301, the 2302, right next to it, same part, dealing with same employees.

[00:05:19] Speaker 04:
Can you just say, let's assume you're right, that they violated these merit systems principles by not getting their proper training.

[00:05:25] Speaker 04:
What's the legal basis given that to reverse the board's finding that the agency showed by clear and convincing evidence that it would have removed her, even with knowledge of her disclosure?

[00:05:37] Speaker 02:
Because the entire training was basically a sham.

[00:05:41] Speaker 02:
And again, I'm not trying to get into the argument of the facts.

[00:05:44] Speaker 02:
But they're basically moving to remove her within days of her blowing the whistle.

[00:05:50] Speaker 02:
And they failed to give her an FPPE until they already removed her from care seven months later.

[00:05:56] Speaker 04:
Here, you're not addressing the right thing.

[00:05:58] Speaker 04:
The agency gave a number of reasons why it would have removed her.

[00:06:04] Speaker 04:
by clear and convincing evidence that those reasons were correct and supported her removal.

[00:06:10] Speaker 04:
You have not once mentioned one of those reasons and why the agency and the board were incorrect in finding those reasons were sufficient.

[00:06:18] Speaker 02:
Well, again, it's the context of the training.

[00:06:22] Speaker 02:
And if they're not providing proper... Can you... Okay.

[00:06:25] Speaker 02:
Yes, sir.

[00:06:26] Speaker 04:
We get your argument on the training.

[00:06:27] Speaker 04:
Let's just assume we disagree.

[00:06:28] Speaker 04:
Do you have anything else in this case?

[00:06:31] Speaker 02:
We have...

[00:06:33] Speaker 02:
Again, it bleeds into the FPBEs, but it was a sham process, the PSP, the information it's considering.

[00:06:42] Speaker 02:
She didn't even see these at four of these.

[00:06:44] Speaker 01:
Do you have any analogous case to support your arguments you're making to us here today?

[00:06:47] Speaker 02:
I'm sorry, he said.

[00:06:48] Speaker 01:
Do you have any good analogous case you could point out to support the arguments you're making here today?

[00:06:53] Speaker 02:
The cases generally that have applied it are dealing with federal employees because they apply.

[00:06:59] Speaker 02:
But those are adverse action cases, also under Chapter 3.

[00:07:04] Speaker 04:
Where they raise it as a defense.

[00:07:08] Speaker 02:
They raise it as a claim, I believe.

[00:07:10] Speaker 02:
This is, yeah, this is.

[00:07:11] Speaker 04:
That claim's not available to you here, right?

[00:07:14] Speaker 04:
This is not an appeal of an adverse action.

[00:07:16] Speaker 02:
No, it's not.

[00:07:16] Speaker 02:
But it's under the same chapter.

[00:07:18] Speaker 02:
I don't have a case that is on point.

[00:07:20] Speaker 04:
I don't know what you mean when it's under the same chapter.

[00:07:23] Speaker 02:
Chapter 3 deals with federal employees.

[00:07:26] Speaker 04:
Right, but, I mean, adverse actions are under Chapter 75.

[00:07:29] Speaker 04:
Whistleblower appeals are, the IRA appeals are what, 1221?

[00:07:34] Speaker 04:
I mean, they're not the same parts of the statute.

[00:07:36] Speaker 04:
They're different parts of the statute.

[00:07:37] Speaker 04:
They're both entitled 5.

[00:07:39] Speaker 02:
But I think they're both Part 3, is my... I don't know what you're saying when you refer to 3.

[00:07:43] Speaker 02:
Well, 3 is employees.

[00:07:44] Speaker 04:
Adverse actions are 5 USC 70, Chapter 75.

[00:07:48] Speaker 04:
Whistleblower appeals are 5 USC 1221, or something like that.

[00:07:53] Speaker 04:
I don't know where the three comes from, unless it's just a subpart of chapter of Title V. But they're not the same chapters.

[00:08:01] Speaker 04:
There's a whistleblower appeal, and there's an adverse action appeal.

[00:08:04] Speaker 04:
And then there's also a different, under Chapter 43, performance appeals, which if she'd been an employee, maybe that's the route they'd go.

[00:08:12] Speaker 04:
They didn't go any of these routes, because she was a probationary employee.

[00:08:15] Speaker 04:
And they didn't have to give her any of that due process.

[00:08:17] Speaker 04:
So she asked to meet her burden under the whistleblower statute, which requires she now

[00:08:23] Speaker 04:
show why the board's decision that the agency would have removed her and prove that by clear and convincing evidence, why that factual decision is not supported by substantial evidence.

[00:08:34] Speaker 04:
You have not made one argument about why the board's decision is not supported by substantial evidence.

[00:08:40] Speaker 02:
There's the catch-all argument.

[00:08:42] Speaker 02:
It's a sham proceeding.

[00:08:43] Speaker 02:
The board proceeding was a sham.

[00:08:45] Speaker 02:
And the fact that even the judge herself notes in footnote 48 how heavily they relied upon these FPPEs.

[00:08:55] Speaker 02:
She didn't see these FPPEs until the board did.

[00:08:57] Speaker 02:
Except for the one they had five FPPs against her Critiquing her all negative.

[00:09:04] Speaker 02:
She was none of them were shared with her until except for one Until the board until they went to the board and then she was given copies first time she's ever seen them That's a sham.

[00:09:15] Speaker 04:
Why is that a sham?

[00:09:16] Speaker 04:
I mean, they're because part of training some procedural problems there, but are you I mean the board found those those reports to be

[00:09:25] Speaker 04:
So you have to explain why those reports are just incorrect.

[00:09:34] Speaker 02:
The fact that she was they never shared them with her the fact that mark rosa is the HR director Are you saying that were created after the fact that they're somehow?

[00:09:43] Speaker 04:
You know illegitimate or is it just the fact that they didn't follow what you think is the right procedures and shared with them I think they're illegitimate I think they saw do you think they that they created them after the fact to support the removal There's no evidence for that in the record, right?

[00:09:58] Speaker 02:
Well, there's evidence that they, from the get-go, in September, had already decided we need to start removing her.

[00:10:06] Speaker 02:
These FPBEs came out.

[00:10:08] Speaker 04:
And that's pretty understandable, isn't it?

[00:10:10] Speaker 04:
If they think she's not performing well and her probation period is coming up, they've got to take action.

[00:10:15] Speaker 04:
Otherwise, it turns into a federal employee, and it becomes much more difficult.

[00:10:20] Speaker 03:
I understand that, Your Honor.

[00:10:21] Speaker 03:
We've been talking about what I think are called the car factors the board found by clear and convincing evidence applying the car factors That the agency would have removed your client regardless of any other concerns you've raised right the board found that Correct.

[00:10:38] Speaker 03:
Yeah, and I don't see that you have challenged those findings.

[00:10:43] Speaker 02:
Is that right?

[00:10:44] Speaker ?:
I

[00:10:44] Speaker 02:
No, we're not re-arguing those facts.

[00:10:47] Speaker 02:
We're arguing the context of the merit system principles.

[00:10:50] Speaker 03:
So as the case comes to us, we have to accept as true that it's been determined by clear and convincing evidence that the same agency action would have been taken, regardless of your arguments to us, correct?

[00:11:05] Speaker 02:
No, in the sense, well, again, I think if you look at the judge's order, she talks about how much the FPPAs influenced, or how much they were intertwined with the decision to remove her.

[00:11:20] Speaker 04:
Your answer, your rebuttal time.

[00:11:21] Speaker 04:
Do you want to save it?

[00:11:23] Speaker 04:
I'll save it, yes.

[00:11:24] Speaker 04:
Thank you.

[00:11:25] Speaker 02:
Ms.

[00:11:25] Speaker 04:
Kirchner.

[00:11:26] Speaker 00:
May it please the court, this is indeed a very narrow case.

[00:11:32] Speaker 00:
And the court should affirm, because there is substantial evidence supporting all of the findings of the board in this case, that the Veterans Administration would have taken the very same personnel actions in the absence of her September 2014 protective disclosure.

[00:11:51] Speaker 00:
And as the court points out, what's

[00:11:55] Speaker 00:
at issue here is the application of the core factors.

[00:12:00] Speaker 00:
But that's not really being challenged.

[00:12:03] Speaker 00:
The judge made it.

[00:12:07] Speaker 04:
I know you don't agree that these merit systems principles were violated.

[00:12:11] Speaker 04:
But just for purpose of the hypothetical, let's just assume they were.

[00:12:14] Speaker 04:
Are you aware of any legal authority in a whistleblower case that that would have any relevance?

[00:12:21] Speaker 00:
No, I'm not.

[00:12:23] Speaker 00:
If we look at this particular case here, when the judge applied the core factors, he paid careful attention to the individuals involved.

[00:12:34] Speaker 00:
And for example, Dr. Jones, who was involved in the training.

[00:12:38] Speaker 00:
So you have in the decision

[00:12:40] Speaker 00:
very careful findings as to whether Dr. Jones had a motivation, the strength of his motivation, or whether he had any motivation.

[00:12:51] Speaker 00:
And there, the judge makes particular findings about training and the training that Dr. Jones gave to Ms.

[00:12:59] Speaker 00:
Sharadonna.

[00:13:00] Speaker 00:
And he looks at

[00:13:03] Speaker 00:
the whole circumstances.

[00:13:06] Speaker 00:
And looking at the whole circumstances, he makes the ultimate finding that the agency would have taken the same personnel actions in the absence of the protected disclosure.

[00:13:17] Speaker 00:
But he does realize that Dr. Jones is involved in the training, and he looks at his behavior in terms of whether he has a motivation.

[00:13:28] Speaker 00:
So I think that there is, in the circumstances of this case,

[00:13:33] Speaker 00:
training is one thing that the judge properly looked at.

[00:13:37] Speaker 00:
But it's not a case about whether she was given the proper training.

[00:13:43] Speaker 00:
That's not the issue here.

[00:13:45] Speaker 00:
He looked at, the judge looked at training in assessing motivation.

[00:13:52] Speaker 00:
And also with respect to car factor two, the judge looked at the nature of the disclosure itself.

[00:14:02] Speaker 00:
And here,

[00:14:03] Speaker 00:
It was a simple disclosure about Dr. Jones was not aware you had to throw out these medicine vials and once he was told that you have to throw them out then he complied and these were multi-dose vials which in the private sector you could have used twice but not at the VA.

[00:14:28] Speaker 00:
With regard to the

[00:14:32] Speaker 00:
FPPE, the Focus Professional Practice Evaluation.

[00:14:36] Speaker 00:
I just want to make a couple points.

[00:14:39] Speaker 00:
First of all, that's required.

[00:14:42] Speaker 00:
You have to have a, if you have clinical privileges, which is what she had in this new job, then you have to have a FPPE, and that's in the national guidance, and the appendix site would be 732.

[00:14:58] Speaker 00:
So here she had to have an FPPE, and you have

[00:15:03] Speaker 00:
very very detailed findings in the opinion which I can go through if you see any need but okay so just to be clear it is required that you have an FPPE and then

[00:15:18] Speaker 00:
It's also required for a probationary employee that you go in front of a professional standards board.

[00:15:27] Speaker 00:
And that's also a matter of national guidance.

[00:15:31] Speaker 00:
And the site for that would be at 734 in the appendix, where it sets out that you have to go before a professional standards board, before a decision is made on whether you are retained as a VA employee.

[00:15:46] Speaker 00:
If the court has no further questions.

[00:15:51] Speaker 03:
Part of the situation here seems to be, I'm not sure there's legal authority for anything that Ms.

[00:15:56] Speaker 03:
Erdogan is arguing.

[00:15:57] Speaker 03:
If that were to be our finding, should we consider dismissing this appeal, or would it still be an affirmance?

[00:16:08] Speaker 00:
I think it's an affirmance.

[00:16:12] Speaker 00:
The court has jurisdiction.

[00:16:15] Speaker 00:
I'm not aware of a case where the court would dismiss just because they thought the arguments were meritless.

[00:16:22] Speaker 00:
It is within your jurisdiction.

[00:16:24] Speaker 00:
So I think it leads to an affirmation.

[00:16:25] Speaker 03:
Just one other quick question.

[00:16:27] Speaker 03:
They talk about transfer in the brief that the board or the agency should have considered transferring Ms.

[00:16:34] Speaker 03:
Sharadana.

[00:16:37] Speaker 03:
Given the findings that were made in the FPPs and by the board, PSB I think it was,

[00:16:44] Speaker 03:
Was transfer an option or did she have to be terminated?

[00:16:48] Speaker 00:
She had to be terminated.

[00:16:50] Speaker 00:
But to be more specific, what she was asking for was essentially a reassignment, to stay within the Bay pine system and to move to another clinical position.

[00:17:01] Speaker 00:
You couldn't move her to another clinical position.

[00:17:04] Speaker 00:
Based on those findings.

[00:17:05] Speaker 00:
Yes.

[00:17:06] Speaker 00:
And the appendix site for that would be 649.

[00:17:07] Speaker 00:
That's an email from Dr. Baumann, who was the chief of orthopedics and the surgeon involved.

[00:17:16] Speaker 00:
Thank you.

[00:17:17] Speaker 02:
Mr. Coveney, you have about four minutes left.

[00:17:19] Speaker 02:
Thank you, Your Honor.

[00:17:22] Speaker 02:
Again, the FPPEs, as counsel has pointed out, are required.

[00:17:28] Speaker 02:
She's supposed to see them in a timely manner.

[00:17:31] Speaker 02:
Actually, all of them covered a period of July to October.

[00:17:36] Speaker 02:
She didn't see the first one until February.

[00:17:39] Speaker 02:
uh... and again the merit system principles specifically say uh... employees to be retained the basis of their advocacy performance inadequate performance should be corrected if she's not being given any kind of feedback which the f t p

[00:17:55] Speaker 02:
substantial feedback.

[00:17:56] Speaker 02:
Again, that's why the PSB reviewed them.

[00:17:58] Speaker 02:
That's why the judge mentioned what she mentioned as to how intertwined they were with the decision.

[00:18:05] Speaker 02:
Then it's failing these principles.

[00:18:08] Speaker 02:
She's not being trained properly.

[00:18:10] Speaker 02:
She's not being provided the resources that the agency itself utilizes to train personnel.

[00:18:18] Speaker 02:
And again, these are documents now without any feedback from her, any input from her with the FPPEs, because she's not seeing four out of five of them until she goes to the board.

[00:18:34] Speaker 02:
It taints the process.

[00:18:36] Speaker 02:
The board is reviewing something that is a sham in the sense that she was never able to share in it and share in that process.

[00:18:45] Speaker 02:
She didn't sign off on those.

[00:18:47] Speaker 02:
So it taints the entire process.

[00:18:50] Speaker 02:
And we mentioned the Cat's Paw theory as far as what the PSP was relying upon.

[00:19:00] Speaker 02:
And the agency, in its brief, had said that there's no published opinion where this court has adopted the Cat's Paw outside of a discrimination case.

[00:19:13] Speaker 02:
Well, we'll be dealing with a discrimination case.

[00:19:16] Speaker 02:
outside of a discrimination case.

[00:19:18] Speaker 02:
This court, however, did in that it rejected, this court rejected the cat's paw theory, citing the Howard case for that.

[00:19:25] Speaker 02:
Actually, the court rejected the cat's paw theory, not necessarily applying to the scenario, but just on the facts in that case, that the facts themselves did not support utilizing a cat's paw.

[00:19:37] Speaker 02:
So again,

[00:19:41] Speaker 02:
as far as a reassignment.

[00:19:43] Speaker 01:
You're not implying that you have case law that supports using Katz-Pot in the list floor context, are you?

[00:19:49] Speaker 02:
No.

[00:19:49] Speaker 02:
This court has considered it, but it was not in a published opinion.

[00:19:54] Speaker 04:
Honestly, I don't understand how it comes in anyway.

[00:19:58] Speaker 04:
It's already really covered in the car factors, where you look at the agency deciding officials' motivation and see if that was valid or not.

[00:20:07] Speaker 04:
I mean, that's kind of the point of Katz-Paul's theory, is to make sure that the deciding official isn't tainted by the proposing official.

[00:20:17] Speaker 02:
But again, if they're reviewing FPPEs, and they did with the car factors.

[00:20:23] Speaker 02:
I mean, they looked at this information.

[00:20:24] Speaker 02:
The FPPEs contained a lot of the same information that they were considering.

[00:20:30] Speaker 04:
But you had an opportunity to show that those FPPEs were invalid at the hearing.

[00:20:36] Speaker 02:
Well, and she raised it.

[00:20:38] Speaker 02:
Well, she did raise it, and she questioned it.

[00:20:41] Speaker 04:
But whatever the VA board has called, didn't find them invalid.

[00:20:44] Speaker 04:
And the administrative judge here didn't find them invalid.

[00:20:48] Speaker 04:
So you would just lose on the facts, even if we accepted the cat's paw theory, wouldn't you?

[00:20:54] Speaker 02:
Again, I think they're all related, though.

[00:20:56] Speaker 02:
They're all intertwined.

[00:20:57] Speaker 02:
And even the judge said that herself.

[00:21:02] Speaker 02:
She had a final thought.

[00:21:06] Speaker 02:
As far as the transfers go, she would have gone anywhere.

[00:21:08] Speaker 02:
She didn't have to stay in Bay Pines.

[00:21:10] Speaker 02:
She was already successful at a California facility.

[00:21:15] Speaker 00:
Thank you.

[00:21:16] Speaker 02:
Casey submitted.