[00:00:00] Speaker 03:
Our next case is Ginsburg versus DVA.

[00:00:06] Speaker 03:
Case number 22-1900.

[00:00:42] Speaker 03:
Mrs. Pauly, did I say your name correctly?

[00:00:46] Speaker 03:
Ms.

[00:00:46] Speaker 03:
Pauly, thank you ma'am.

[00:00:47] Speaker 03:
Okay, whenever you're ready.

[00:00:49] Speaker 01:
Thank you.

[00:00:50] Speaker 01:
May it please the court.

[00:00:52] Speaker 01:
I have the honor of representing Dr. Ginsburg.

[00:00:55] Speaker 01:
And at the MSPB level of this case, the MSPB found that my client did indeed meet his initial burden that he is a whistleblower.

[00:01:03] Speaker 01:
So then the burden shifts to the agency to then put forth clear and convincing evidence

[00:01:11] Speaker 01:
that they did not take these five personnel actions against my client because of him being a whistleblower.

[00:01:19] Speaker 01:
The MSPB judge found that my client engaged in three different forms of protected activity that would protect him as a whistleblower.

[00:01:27] Speaker 01:
Those included his protective disclosures about his status as a neuropsychologist with the VA.

[00:01:35] Speaker 01:
He talked about the concerns of the standards that were being applied for analysis in how clinicians were performing their duties at the Columbia location for the VA.

[00:01:46] Speaker 01:
I think the most important persuasive of the three car factors that the agency has a responsibility to show

[00:01:59] Speaker 01:
is the third, which is the comparator.

[00:02:01] Speaker 01:
I think that is the most pivotal one here where there is lacking none.

[00:02:06] Speaker 01:
And essentially the MSQD found that to be neutral.

[00:02:09] Speaker 01:
But I've cited in my briefing like five different cases where Whitmore, Chambers, Miller, Russell, and Doyle all show that the agency

[00:02:19] Speaker 01:
has a responsibility to put forth that evidence.

[00:02:22] Speaker 01:
We do not have that burden, and we still were indicating in the record that that's a virtue.

[00:02:27] Speaker 02:
Just to start with that then, do you, just to answer my question, do you think the agency has to produce evidence for each of the factors?

[00:02:34] Speaker 02:
It sounds like you think for factor three they do.

[00:02:36] Speaker 02:
Are you saying for all three?

[00:02:38] Speaker 01:
Well, the first factor is the strength of the agency's evidence.

[00:02:43] Speaker 01:
So I would say definitely the first factor as well.

[00:02:45] Speaker 01:
The second is about the existence

[00:02:47] Speaker 01:
and strength of any motive.

[00:02:49] Speaker 01:
So I would say the first and the third factors are the most persuasive in terms of what the agency needs to look for.

[00:02:56] Speaker 01:
But the second is about motive.

[00:02:59] Speaker 01:
So we have indeed showed that Dr. Amaro and Dr. Haddock, the two decision makers, did indeed have retaliatory motives.

[00:03:07] Speaker 01:
So I think there is a little bit of hybrid there between those three factors, because the motive aspect

[00:03:14] Speaker 01:
is still an intent you know we need to be able to show and have indeed already established that in the initial prima facie showing of reprisal and so the MSPB did indeed agree with that and so with the three car factors I would say that then once the burden has shifted to the agency

[00:03:32] Speaker 01:
All three factors must have evidence from the agency proffering otherwise.

[00:03:37] Speaker 01:
They have a burden of showing.

[00:03:39] Speaker 01:
So to answer your honor more directly, yes, the agency needs to produce evidence about all three car factors once that burden has shifted to them.

[00:03:49] Speaker 01:
They have that clear convincing burden, but I think there's kind of a

[00:03:53] Speaker 01:
a slight exhale, I guess, to some extent, in terms of the most obvious of how much evidence would need to be put forth from the agency.

[00:04:00] Speaker 02:
And prior case law from this court has indicated... Why do you consider that Dr. Birch is a similarly situated employee?

[00:04:08] Speaker 01:
Within the record, Dr. Birch is described as in a non-clinical role as well.

[00:04:15] Speaker 01:
So both Dr. Birch and my client, Dr. Ginsburg,

[00:04:19] Speaker 01:
We're serving as like part-time other repeated roles, but ultimately the ones that issued here is their part-time services to the VA as researchers.

[00:04:29] Speaker 01:
And so when we look at, for instance, the clinical side, this prior case, that's based on conduct and performance being considered.

[00:04:38] Speaker 01:
The reasons given by the VA in terms of taking these five personnel actions about Dr. Ginsburg are solely based on his status.

[00:04:47] Speaker 01:
They essentially argue it's a matriculation, that because he loses his clinical status, he can no longer be a researcher with the VA.

[00:04:56] Speaker 01:
And the only evidence that they cite to in the record is the IRB recommendations and the ORD program guide.

[00:05:03] Speaker 01:
I'd like to analyze both of those each because I think they're pivotal.

[00:05:07] Speaker 01:
The IRB, again, is a recommendation.

[00:05:10] Speaker 01:
So again, this goes to this third and second as well, elements of CAR, where it shows that there is the existence of a motive.

[00:05:20] Speaker 01:
So Dr. Haddock and Dr. Amura had to make decisions.

[00:05:23] Speaker 01:
They had to voluntarily choose to take these five personnel actions, and that they didn't take similar actions against Dr. Birch, who was working on the exact same research program

[00:05:34] Speaker 01:
go to the very heart of the issue.

[00:05:36] Speaker 00:
But is Dr. Birch really similarly situated?

[00:05:39] Speaker 00:
He or she was never a clinician and never lost their clinical status due to misconduct.

[00:05:46] Speaker 00:
Isn't that who would be similarly situated, that type of person?

[00:05:51] Speaker 01:
No, Your Honor.

[00:05:51] Speaker 01:
And let me explain my rationale behind that.

[00:05:54] Speaker 01:
It's because the agency itself does not make that determination.

[00:05:58] Speaker 01:
And there's nothing in the program guide indicating a loss of clinical status.

[00:06:03] Speaker 01:
They're pointing to, is someone a clinical employee?

[00:06:09] Speaker 01:
That five-eighths argument that they've raised.

[00:06:12] Speaker 01:
And again, Dr. Burch and Dr. Ginsburg were both not in that status.

[00:06:16] Speaker 00:
Did the agency take the view that there are no similarly situated individuals?

[00:06:23] Speaker 01:
Again, I think it comes to their burden of proof.

[00:06:26] Speaker 00:
But didn't they take that position?

[00:06:28] Speaker 01:
I think indirectly, yes, Your Honor.

[00:06:31] Speaker 00:
And the board at least tells us they think that you did not dispute that assertion on this third car factor.

[00:06:38] Speaker 00:
Isn't that right?

[00:06:40] Speaker 01:
And that's very much the disputed part of the appeal, is that when it should be.

[00:06:45] Speaker 00:
Sorry, show us where you disputed.

[00:06:47] Speaker 00:
You agree that the agency contended that there are no similarly situated individuals, right?

[00:06:54] Speaker 01:
to the extent it proffered no evidence otherwise of a comparator.

[00:06:57] Speaker 01:
So again, I think the pace call that I've cited to shows that where none has been identified, that that element, at least the MSPB said, is neutral.

[00:07:07] Speaker 00:
We argue that it's not neutral based on the- Show us where you made that argument below, where you said to the board in some fashion,

[00:07:15] Speaker 00:
We should get credit in this balance shifting or burden shifting from the agency's contention that there is nobody similarly situated.

[00:07:26] Speaker 00:
Because the board seems to think they said that, and you said, OK, that's fine.

[00:07:30] Speaker 00:
We'll move on to the other factors.

[00:07:32] Speaker 00:
if you're telling me that's not what happened, I'd just like to see where that is.

[00:07:36] Speaker 01:
Yes, Your Honor.

[00:07:37] Speaker 01:
I'll use it when my colleague gets, I'll find a site just to utilize my time wisely, but I will look for that, Your Honor.

[00:07:45] Speaker 03:
Now, the Whitmore and Miller cases that you cited earlier on Carb Factor III,

[00:07:50] Speaker 03:
They don't say that when the government takes the position that there's no similarity to situated comparators, that that means that there must be some, or that where they don't produce evidence that we're supposed to weigh that strongly in favor of the appellant, right?

[00:08:08] Speaker 03:
Instead, they say there's a small presumption there, a very small presumption that car factor three

[00:08:15] Speaker 03:
Is it neutral, but only slightly favors here, in this case, Dr. Ginsburg?

[00:08:22] Speaker 01:
Right?

[00:08:22] Speaker 01:
I think, Your Honor, with that in mind is that

[00:08:27] Speaker 01:
But that's giving deference to the agency saying there is none.

[00:08:30] Speaker 03:
And again, I think the difference here is- I'm just looking at what our law says.

[00:08:34] Speaker 03:
I want to know what the Whitmore case and Miller case say.

[00:08:37] Speaker 03:
I don't remember them saying that you're supposed to look at that situation and presume the factor should be weighed in favor of the whistleblower.

[00:08:46] Speaker 03:
I don't see that.

[00:08:47] Speaker 03:
I just saw in those cases that it says it's a small increase in favor, weighs a little bit in favor.

[00:08:56] Speaker 03:
of Mr. Ginsburg.

[00:08:59] Speaker 03:
Dr. Ginsburg, am I correct in that?

[00:09:02] Speaker 03:
I just want to make sure I understand the case.

[00:09:04] Speaker 01:
I think the weight of the evidence.

[00:09:06] Speaker 01:
I'm not disagreeing with Your Honor's reading of Whitmore and Miller.

[00:09:10] Speaker 01:
What I'm saying is when you look at Whitmore and Miller and these other cases where the court has considered this element, I think it is, to some extent, a case-by-case analysis.

[00:09:21] Speaker 01:
And in this situation, the agency did not provide any, but Dr. Ginsburg, who did not have the clear and convincing burden, is proffering Dr. Birch as someone who was working on these same, like these most obvious comparators, working on the same research program

[00:09:39] Speaker 01:
And again, the status is the same.

[00:09:43] Speaker 01:
Conduct doesn't matter because that's not at all what's cited by the agency when it removes Dr. Ginsberg ultimately from all research roles through these five different personnel actions where he is ceasing to be in any kind of employment with the VA based on his status.

[00:09:59] Speaker 03:
Do you agree that the standard of review here is substantial evidence?

[00:10:03] Speaker 03:
We're supposed to look and see whether the board's weighing of the factors and ultimate conclusion, whether it's supported by substantial evidence.

[00:10:11] Speaker 03:
In other words, whether it's a reasonable determination based on this factual record.

[00:10:17] Speaker 03:
Yes, Your Honor, that's the de novo review.

[00:10:20] Speaker 01:
No, no, it's substantial evidence review, not de novo review.

[00:10:24] Speaker 01:
Well, in terms of the substantial evidence, it would be one where you are looking at the MSPB's determination from a substantial evidence from the three potentials.

[00:10:33] Speaker 01:
It would be an arbitrary capricious, a violation of the law or substantial evidence.

[00:10:37] Speaker 01:
We assert to the substantial evidence standard.

[00:10:40] Speaker 03:
Right.

[00:10:40] Speaker 03:
And so, you know, in this circumstance where there's recommendations from the IRB,

[00:10:46] Speaker 03:
and statements supporting the action of the agency in the ORD, in the IRB, why isn't that, why isn't the board's determination here that there's clear and convincing evidence that the government would have made that same determination anyway?

[00:11:05] Speaker 03:
Why is that unreasonable?

[00:11:08] Speaker 01:
For example, Your Honor, I would cite to appendix 11, 1176.

[00:11:14] Speaker 01:
That is Dr. Haddock's email.

[00:11:17] Speaker 01:
I think you can expressly see in the contents of her email therein that she acknowledges that her decisions related to this are voluntary in nature and that ultimately it would be something, these personnel actions are something she could choose to do rather than ultimately

[00:11:35] Speaker 01:
But again, it comes down.

[00:11:36] Speaker 03:
I hear what you're saying, that there is some discretion there.

[00:11:39] Speaker 03:
Even if there's some discretion from the recommendation of the IRB, that doesn't mean that the government wouldn't have taken the action anyway.

[00:11:49] Speaker 03:
In this case, it's a little different than other whistleblower cases in the sense that you do have some policy, written policy, that supports the action that the VA took here.

[00:12:04] Speaker 01:
I would disagree, Your Honor, in the sense that the program guide is specifically about who would be the principal investigator.

[00:12:12] Speaker 01:
The program guide is source two in the record.

[00:12:15] Speaker 01:
That is not contemplated in these personnel actions that are taken.

[00:12:19] Speaker 01:
So I think the program guide would be clear that he could not be the primary investigator.

[00:12:26] Speaker 01:
That is clear.

[00:12:27] Speaker 01:
But everything else that the VA did is discretionary and because he is a whistleblower.

[00:12:32] Speaker 01:
And when we look at this IRB, again, that's the other facet of what the agency sources to for their evidence.

[00:12:41] Speaker 01:
to meet what they're starting as the clear convincing standard is that the IRB merely recommended that my client would be essentially amended to show that he is not in the clinical capacity, but they did not recommend these personnel actions that were discretionary in nature and taken by the two individuals

[00:13:02] Speaker 01:
who, as the MSPB already found, had motives related to retaliatory or causal nature for my clients through protected activities.

[00:13:12] Speaker 01:
His OSC complaint, his board appeal in the first matter.

[00:13:16] Speaker 02:
Do you agree that each car factor does not need to weigh in favor of the agency for us to affirm in this case?

[00:13:23] Speaker 02:
I'm sorry.

[00:13:23] Speaker 02:
Do you agree that each car factor does not need to weigh in favor of the agency for us to affirm in this case?

[00:13:30] Speaker 01:
I think all three way in favor of my client.

[00:13:33] Speaker 01:
That's why the reason I analyze all three.

[00:13:36] Speaker 02:
No, but you didn't answer my question.

[00:13:38] Speaker 02:
Do you agree that each car factor does not need to weigh in favor of the agency for us to affirm in this case?

[00:13:46] Speaker 01:
Well, I think the case wall that I've cited to Whitmore, Chambers, Miller, Russell, and Doyle all analyze what the court standard has been in other cases.

[00:13:55] Speaker 01:
So I think I would just cite that being to following in the same footsteps.

[00:13:59] Speaker 01:
This wouldn't be carving out on the wall.

[00:14:01] Speaker 01:
This would be consistent with what the court has already done.

[00:14:04] Speaker 03:
Could you answer that question with a yes or a no?

[00:14:08] Speaker 03:
Are you able to?

[00:14:09] Speaker 01:
Well, Your Honor, I would say that

[00:14:12] Speaker 01:
Here, yes, all three show in favor of my client, whether the court must.

[00:14:16] Speaker 03:
No, the question is, as a matter of law, if it is it, you asked your own question.

[00:14:22] Speaker 03:
As a matter of law, do all three car factors, is it OK if two car factors weigh in favor, I guess one factor weighs in favor of your client, two factors weigh against your client, can we still affirm?

[00:14:37] Speaker 03:
That's the question, I think.

[00:14:38] Speaker 01:
That is the question.

[00:14:40] Speaker 01:
Yes, sir.

[00:14:40] Speaker 01:
And I believe yes, but I can double check.

[00:14:42] Speaker 01:
I have car here.

[00:14:43] Speaker 01:
And in my brief amount of time, I can find the citation, and I'll confirm that in car.

[00:14:48] Speaker 01:
I don't want to misquote.

[00:14:49] Speaker 01:
OK, but it sounds like your answer is yes.

[00:14:51] Speaker 01:
And that's all.

[00:14:52] Speaker 01:
I was trying to get a yes or no.

[00:14:53] Speaker 02:
I appreciate my colleague rephrasing the question.

[00:14:55] Speaker 01:
My recollection of car is yes, but I will refresh myself.

[00:14:59] Speaker 01:
I have it here in front of me, and I will do so.

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

[00:15:02] Speaker 01:
Thank you, Ms.

[00:15:02] Speaker 01:
Polde.

[00:15:04] Speaker 03:
Well, let's now hear from the government.

[00:15:07] Speaker 03:
Ms.

[00:15:07] Speaker 03:
Sinani, did I say her name correctly?

[00:15:10] Speaker 03:
Yes, ma'am.

[00:15:10] Speaker 03:
Whenever you're ready.

[00:15:12] Speaker 03:
Thank you.

[00:15:13] Speaker 05:
Good morning, Your Honors.

[00:15:14] Speaker 05:
May I have the support?

[00:15:16] Speaker 05:
This case presents an attempt by Dr. Ginsburg to re-argue some of the merits of his removal, which this Court has already affirmed.

[00:15:29] Speaker 05:
In essence, what Dr. Ginsburg is requesting is that even though his removal from the clinical position was upheld by this Court,

[00:15:38] Speaker 05:
There should be no downstream effects from that decision, and that the VA should have made every effort to continue to provide him with research funding.

[00:15:49] Speaker 05:
He is wrong.

[00:15:51] Speaker 05:
Substantial evidence supports the board's decision that the agency clearly and convincingly proved that it would have taken the same personnel actions with regard to Dr. Ginsburg's research position.

[00:16:05] Speaker 05:
absent independent of his protected disclosure and activity.

[00:16:10] Speaker 05:
Regarding the first car factor, which is the strength of the agency.

[00:16:14] Speaker 03:
Could you focus on car factor three, which seems to be the one that is the one of greatest dispute here on appeal?

[00:16:20] Speaker 05:
Yes, Your Honor.

[00:16:22] Speaker 05:
Case law is very clear that the agency is not required to produce evidence regarding to each and specific car factor.

[00:16:29] Speaker 05:
In fact, we have Rickold v. Department of the Navy, which is a 2022 decision.

[00:16:34] Speaker 05:
And there, and I quote, it specifically states, CAR imposes no affirmative burden on the agency to produce evidence of each of the three factors.

[00:16:45] Speaker 05:
And the word produced there is italicized, so it's emphasized.

[00:16:52] Speaker 00:
Is Dr. Birch similarly situated here?

[00:16:55] Speaker 00:
No, Your Honor.

[00:16:55] Speaker 05:
Why not?

[00:16:56] Speaker 05:
Because Dr. Birch

[00:16:59] Speaker 05:
Dr. Burch had a five-eighths appointment, which was an appointment of at least 24 hours, 25 hours.

[00:17:05] Speaker 05:
It's undisputed that Dr. Ginsburg lacked that requirement.

[00:17:10] Speaker 05:
And that's reflected in appendix 1146.

[00:17:15] Speaker 05:
And then Dr. Burch also has always been in a research position role.

[00:17:19] Speaker 05:
So he has never had his clinical privileges removed, which Dr. Ginsburg has.

[00:17:25] Speaker 05:
Additionally, Dr. Birch's salary was paid through the research funds, whereas Dr. Ginsburg's salary was paid by the facility.

[00:17:37] Speaker 05:
So those are at least three main differences between the two.

[00:17:42] Speaker 03:
So that's kind of the substantial evidence that would support the board's determination that Dr. Birch is not, in fact, similarly situated.

[00:17:50] Speaker 02:
Yes, Your Honor.

[00:17:52] Speaker 02:
If we were to find that the board erred in its analysis as to Carp Bacter 3, could we still affirm?

[00:18:01] Speaker 05:
It erred in its analysis regarding the legal question of whether or the substantial admins.

[00:18:13] Speaker 02:
Let me keep it kind of general.

[00:18:15] Speaker 02:
Basically what I'm wondering is if there were error, and I'll kind of rephrase to see if this will make it easier for you to answer.

[00:18:21] Speaker 02:
If there were error, would that error with respect to factor three be considered perhaps harmless so that we could still get two and a third?

[00:18:29] Speaker 02:
What's your position on that is what I'm trying to- Yes, Your Honor.

[00:18:31] Speaker 05:
So with regard to

[00:18:35] Speaker 05:
With regard to whether Dr. Ginsburg was similarly situated, the Board did not take an overly narrow view of the record.

[00:18:43] Speaker 05:
Here, there were three declarations in the record, and they start on pages 198 through 1210 of the Appendix.

[00:18:50] Speaker 05:
by Dr. Amora, Dr. Haddock, and Mr. Barman.

[00:18:54] Speaker 05:
And they each stated in their declarations that it was a cumulative effect of Dr. Binsburg's clinical performance, his loss of privileges, his lack of a five-eighths appointment with the agency, and his removal from the clinical position that essentially informed the agency's actions here.

[00:19:15] Speaker 03:
I have a question.

[00:19:16] Speaker 03:
Are you aware of any of our case law where

[00:19:20] Speaker 03:
If we found that the board erred, let's say there's not substantial evidence to support the board's finding on one of the car factors, that we went ahead and affirmed anyway.

[00:19:34] Speaker 03:
Because I don't know of any cases like that.

[00:19:36] Speaker 03:
Do you?

[00:19:37] Speaker 04:
I'm not aware of any.

[00:19:39] Speaker 04:
That's on my head, Your Honor.

[00:19:42] Speaker 04:
No.

[00:19:44] Speaker 00:
But here, maybe just to follow up on my colleagues, if we were to conclude there's non-substantial evidence to treat car factor three as neutral, and we think car factor three could only be viewed as in favor of Dr. Ginsburg, can we affirm, or must we reverse, or what would we do at that point?

[00:20:04] Speaker 05:
No, Your Honor.

[00:20:05] Speaker 05:
So in Rickle, for example, the court affirmed that the question before the court is whether substantial evidence

[00:20:13] Speaker 05:
supports the board's decision that the agency approved by clear and convincing evidence that it would have taken the same actions independent of protected disclosure activities.

[00:20:22] Speaker 05:
And the analysis of the CAR factors, it involves looking at the record of the aggregate to inform the board's decision whether the agency made its burden of proof.

[00:20:34] Speaker 05:
So there's no quantum requirement, for instance.

[00:20:39] Speaker 05:
We're analyzing all of the factors

[00:20:43] Speaker 05:
And if the record of the aggregate supports the board's decision, then I think that's enough to affirm.

[00:20:49] Speaker 03:
Another question I have is the car factors aren't exclusive, right?

[00:20:53] Speaker 03:
As you're sitting there looking at the picture question of whether the government approved by clearing convincing evidence that it would have removed

[00:21:00] Speaker 03:
Dr. Ginsburg anyway, you know another there's other factors that could be considered right besides just car factors Yes, your honor and I believe the court in Rickle did say that those factors are not including excuse me, not exclusive Do you think there's anything additional that the board considered here?

[00:21:20] Speaker 03:
And like maybe the ORB and the IRB, are those separate or part of the car factors in considering whether the government would have taken the action anyway, given that there's independent board, for example, that was recommending the action that the agency took?

[00:21:36] Speaker 05:
Yes, and I think that becomes relevant particularly with regard to car factor one, which is the strength of the evidence.

[00:21:45] Speaker 05:
And I think in retaliation too, because

[00:21:49] Speaker 05:
The record lacked evidence that these decisions were driven by retaliatory motive.

[00:22:00] Speaker 05:
What the decision makers did here was follow agency policy, and as much as Dr. Ginsburg

[00:22:06] Speaker 05:
which is to dispute that the ORD program guide was not binding, the very first paragraph, the first paragraph in that guide states that these are the criteria to receive research support.

[00:22:20] Speaker 05:
And then paragraph four B state refers to the employment requirement, the 25 hour requirement as a requirement, specifically states the foregoing requirements.

[00:22:31] Speaker 05:
So it was binding.

[00:22:35] Speaker 05:
The IRB is an institutional review board that's specifically charged with continuing oversight of the human subject research.

[00:22:47] Speaker 05:
It's important to remember that Dr. Ginsburg was removed from his position for egregious failures to maintain and document patient charts, patient records.

[00:22:58] Speaker 05:
That necessitated the director, Dr. Amora, who was the deciding official in the removal decision, which was affirmed by this court, despite Dr. Ginsburg's allegations of whistleblowing or retaliation.

[00:23:12] Speaker 05:
It necessitated Dr. Amora to make a complaint with the state licensing board.

[00:23:24] Speaker 05:
All of these combined, Your Honor, show clearly that the agency was following its policies, it was following its protocol, and there was no motive to retaliate on either of the officials.

[00:23:40] Speaker 05:
If the court doesn't have any other questions.

[00:23:44] Speaker 00:
I have one more.

[00:23:45] Speaker 00:
So in the addendum, you try to introduce certain policies that appear not to be in the record.

[00:23:51] Speaker 00:
What's the basis on which we could look at them?

[00:23:54] Speaker 00:
And do you need us to look at them in order to prevail in this appeal?

[00:23:57] Speaker 05:
No, Your Honor.

[00:23:58] Speaker 05:
The addendum that I provided, that we provided, that was pursuant to Rule 28 of the Federal Rules of 20-F of the appellate procedure.

[00:24:08] Speaker 05:
But also, that was merely to provide some background to the court.

[00:24:12] Speaker 05:
On the record, there were a lot of references to IRB and ORD and co-investigator and investigator.

[00:24:19] Speaker 05:
But I don't think there was a particular document that specifically described what the rules of all of these boards are.

[00:24:25] Speaker 05:
So I think that was mainly to provide some background and assistance to the court.

[00:24:29] Speaker 00:
You're not asking us to take judicial evidence?

[00:24:33] Speaker 05:
They are part of the public record, Your Honor.

[00:24:36] Speaker 05:
So the court could, if it wanted to.

[00:24:42] Speaker 05:
Thank you for these reasons, and those described in our response group, we respectfully request that the court confirm the board's decisions.

[00:24:51] Speaker 05:
Thank you, Ms.

[00:24:52] Speaker 03:
Hainani.

[00:24:54] Speaker 03:
Ms.

[00:24:54] Speaker 03:
Colby, I'm going to give you another minute.

[00:24:58] Speaker 03:
Thank you.

[00:25:02] Speaker 01:
Thank you, Your Honor.

[00:25:04] Speaker 01:
First, I'd like to address Judge Cunningham's question.

[00:25:08] Speaker 01:
In order to answer that, I think I need to refer to three cases, Carr, Whitmore, and then also a recent, 2023 McClure versus Department of Veterans Affairs.

[00:25:22] Speaker 01:
And therein, the court talks about, in its totality, considering these different factors.

[00:25:30] Speaker 01:
And when I looked back at Carr itself,

[00:25:33] Speaker 01:
Again, it uses the word factor, and it says and, and again, there's contemplated more.

[00:25:37] Speaker 01:
So I think the court could overturn even just on one factor when I looked back at the specific verbiage of the Carr case itself.

[00:25:44] Speaker 01:
So to answer your question, it's just based on Carr, and then I'm looking at the recent McClure.

[00:25:51] Speaker 00:
So we could overturn, but I think the question was, can we affirm if we only think there's substantial evidence for two of the three factors in favor of the agency?

[00:26:00] Speaker 01:
In these cases that I look at, I think when the court has found that a factor was inappropriately found by the MSPB, not in support of the substantial evidence, that they would, in the past, this court has overturned that, based on even one factor being incorrectly applied by the MSPB.

[00:26:21] Speaker 01:
When you say overturned, you mean vacated?

[00:26:24] Speaker 01:
Vacated, Your Honor.

[00:26:24] Speaker 03:
For the board to consider in the first instance?

[00:26:27] Speaker 03:
Yes, Your Honor.

[00:26:31] Speaker 01:
the end of the year.

[00:26:49] Speaker 01:
And I believe there were two that had at least some reference in the record.

[00:26:53] Speaker 01:
I think the court obviously may analyze those differently based on things that were not at all before the MSPB and ones that at least were referenced in some context.

[00:27:03] Speaker 01:
And then with regard to in the record whether Dr. Burch would have been compared to or earlier in the record, two that I just found in quick reference.

[00:27:13] Speaker 01:
was Appendix 873 in Dr. Ginsburg's prior council's correspondence with the agency.

[00:27:23] Speaker 01:
And then also, I was looking at Appendix 1226, which is actually the MSPB's decision.

[00:27:33] Speaker 01:
And they articulate and describe Dr. Burch on this page as being consistent.

[00:27:38] Speaker 01:
that, you know, as a performing research in terms of, as I have described, the similar status that the conduct is irrelevant is they're both their similar status as part-time researchers that are not clinical in nature.

[00:27:53] Speaker 00:
Are those the responses to our discussion earlier about whether you challenged the government's saying that there was nobody similarly situated at the board level?

[00:28:05] Speaker 01:
Yes, and in the review from the initial decision in the petition for review.

[00:28:12] Speaker 01:
That's in there as well, Your Honor.

[00:28:15] Speaker 00:
And is that at these two A sites that you just gave us, or is that a different site?

[00:28:21] Speaker 01:
The petition for review is a different one in the record.

[00:28:24] Speaker 01:
That was in addition to the petition for review.

[00:28:27] Speaker 03:
OK, thank you.

[00:28:28] Speaker 03:
Do you want to cite a particular page in the petition for review, or?

[00:28:32] Speaker 00:
I'm not sure if the petition for review is even in our record.

[00:28:41] Speaker 01:
Thank you for your intelligence for me.

[00:29:00] Speaker 01:
believe it is your honor, but I'm just not finding it at the moment.

[00:29:05] Speaker 03:
You think it's in the petition for review?

[00:29:07] Speaker 03:
Yes, Your Honor.

[00:29:09] Speaker 03:
All right.

[00:29:10] Speaker 03:
Thank you, Mr. Colby.

[00:29:12] Speaker 03:
We thank both counsel for your argument and we will take the case on your submission.

[00:29:17] Speaker 03:
Thank you.