[00:00:00] Speaker 03:
The next appeal is docker number 23-1400, a butylib versus the More Efficient Protection Board.

[00:00:12] Speaker 03:
Feel free to begin.

[00:00:12] Speaker 03:
Thank you, Your Honor.

[00:00:21] Speaker 02:
Hey, Prince of Court.

[00:00:21] Speaker 02:
My name is Dyrton Corkindale.

[00:00:23] Speaker 02:
We represent Dr. Dabina Boudelib in this appeal from the MSPB.

[00:00:29] Speaker 02:
She joins us by listening on the line from Chicago today.

[00:00:32] Speaker 02:
Dr. Boudelib is an award-winning physician.

[00:00:36] Speaker 02:
She has an unblemished service record across a decade now.

[00:00:40] Speaker 02:
It's undisputed that she led the geriatric world of Avila Hospital through the COVID-19 pandemic, and she did so effectively and very well.

[00:00:48] Speaker 02:
But after 27 months, she was demoted without explanation and dropped from a table two to a table one compensation by Dr. Cotter, her direct in-line supervisor.

[00:00:59] Speaker 04:
Well, the term demoted, it seems to me, is a demoted term in this context.

[00:01:03] Speaker 04:
She had been bumped up, as I understand it, during the time she was a hospitalist.

[00:01:09] Speaker 04:
And then when she stopped being a hospitalist during that COVID period, she was returned to her status

[00:01:17] Speaker 04:
that she occupied previously.

[00:01:19] Speaker 04:
There was no further reduction in her pay, as I understand.

[00:01:23] Speaker 04:
Is that right?

[00:01:25] Speaker 02:
Yes, Judge Wilson.

[00:01:25] Speaker 02:
You're right.

[00:01:26] Speaker 02:
There was no reduction in her pay.

[00:01:27] Speaker 02:
But moving to a table one.

[00:01:29] Speaker 04:
Well, and no reduction from, she didn't go beyond where she was at table one prior to the time that she became a hospitalist.

[00:01:39] Speaker 04:
She wasn't deprived of any rights she had at table one before she was a hospitalist, right?

[00:01:47] Speaker 02:
She describes losing the ability to have further pension abilities, further promotions that are available on Table 2, so she does consider that a demotion.

[00:01:59] Speaker 04:
No, I understand that Table 2 is better than Table 1, but Table 2 sounds to me like the record reflects that that was a temporary status determined by the fact that she was doing hospitalist work.

[00:02:15] Speaker 04:
Isn't that right?

[00:02:16] Speaker 02:
There was nothing to indicate that it was temporary, Your Honor.

[00:02:20] Speaker 02:
That was the post-hoc excuse given when they told her that it was a clerical mistake that had put her up to table two in the first place.

[00:02:28] Speaker 02:
But there was nothing in her mind that made that that was temporary in any way.

[00:02:32] Speaker 02:
And she also felt that it was a demotion that she was returned to the geriatric

[00:02:38] Speaker 02:
an expensive care ward where she is underutilized as opposed to being a hospitalist.

[00:02:43] Speaker 02:
So she considered that a demotion in her duties as well as a substantive matter.

[00:02:49] Speaker 02:
She thought that those were retaliatory actions based on whistle blowing that she had engaged in in previous proceedings as against this individual who then

[00:03:06] Speaker 02:
who then demoted and took her from that table 2 to table 1.

[00:03:10] Speaker 00:
One of the difficult questions in this case is trying to figure out whether there's jurisdiction here because the alleged whistleblowing activities are part of an EEOC complaint.

[00:03:28] Speaker 00:
One thing I'm concerned about is that

[00:03:34] Speaker 00:
your client has the burden to prove on this.

[00:03:37] Speaker 00:
And there's no complaint or pleadings from the EEOC proceeding to show, because it's very important.

[00:03:46] Speaker 00:
There's very limited jurisdiction for the board in these circumstances where it's coming from in the EEOC complaint.

[00:03:54] Speaker 00:
So we don't have a complaint or any other pleadings other than the ultimate resolution with the government to try to determine what the whistleblowing activities were.

[00:04:03] Speaker 00:
Was she talking about herself?

[00:04:05] Speaker 00:
It seems pretty clear.

[00:04:08] Speaker 00:
There's a very fine line in the statute in describing the kind of whistleblowing activity that will give jurisdiction to the court.

[00:04:18] Speaker 02:
Yes, Your Honor.

[00:04:20] Speaker 02:
It is true, they must be distinct from Title VII discrimination actions.

[00:04:26] Speaker 02:
These whistle-blowing activities must be more generalized and personnel type grievances.

[00:04:31] Speaker 02:
And we'll see from that settlement agreement, they were talking about, for example, residency interviews.

[00:04:38] Speaker 02:
She was no longer a resident.

[00:04:39] Speaker 02:
She was speaking broadly about other individuals.

[00:04:42] Speaker 02:
These are more

[00:04:43] Speaker 02:
personnel type activities, these are employment type activities, this had nothing to do with her personal Title VII grievances.

[00:04:50] Speaker 00:
Where is the complaint?

[00:04:53] Speaker 00:
Where are the other documents that were filed in that proceeding?

[00:04:57] Speaker 02:
She said that she has no other documents.

[00:04:59] Speaker 02:
Much of it is done online.

[00:05:00] Speaker 02:
It's a cleaning process online.

[00:05:02] Speaker 02:
Much of that is built out in other ways.

[00:05:05] Speaker 02:
She had to make a FOIA request to even find some of the internal fact-finding of the EEO.

[00:05:12] Speaker 02:
And so that has come piece by piece.

[00:05:15] Speaker 02:
But we certainly know that from those things, we can draw a very reasonable inference that she was making legitimate and distinct whistleblowing accusations against Dr. Cotter there.

[00:05:25] Speaker 00:
But in this case?

[00:05:26] Speaker 02:
Yes.

[00:05:26] Speaker 00:
as I understand it, is that you're faulting the board for not making those inferences based on the settlement agreement alone, right?

[00:05:38] Speaker 02:
All inferences in a pro se case should be drawn in favor of that pro se appellate.

[00:05:43] Speaker 00:
But just am I right that the inferences are being drawn primarily based on the settlement agreement?

[00:05:50] Speaker 02:
That is the one document that she had to submit.

[00:05:53] Speaker 02:
It was one of 20 pages that she provided.

[00:05:57] Speaker 02:
It was not deep in the matter of rummaging through thousands of pages.

[00:06:02] Speaker 03:
Just to put a final point on this, does your case rise or fall as to whether she made a 2302B8 disclosure in the EEO proceeding?

[00:06:18] Speaker 03:
Does it rise or fall based on the content of the settlement agreement?

[00:06:23] Speaker 04:
Page 211 of the appendix.

[00:06:25] Speaker 02:
Is that your whole case, I guess, as a way to... Page 211 of the appendix is the matter from which we derive the inference that there was something underneath it.

[00:06:38] Speaker 02:
Is the answer yes?

[00:06:40] Speaker 02:
The answer is yes, that is the one document that speaks to her entire video proceeding.

[00:06:44] Speaker 03:
One concern is that we've said that a protected disclosure

[00:06:53] Speaker 03:
like a 2302B8 type of protected disclosure, has to be pretty specific and clear.

[00:07:01] Speaker 03:
And it can't just be some broad-based vague allegation.

[00:07:06] Speaker 03:
And just based on this settlement agreement alone, we don't, first of all, can't even be sure whether an allegation was made, let alone

[00:07:15] Speaker 03:
a specific one as opposed to some broad-based vague allegation.

[00:07:19] Speaker 03:
And so what I'm trying to do right now is put myself in the shoes of the administrative judge here at the board and figure out whether she somehow legally erred by not divining that there could be and should be some kind of further investigation that there was

[00:07:41] Speaker 03:
a 2302b8 protected disclosure here that was specific enough, especially in the context of an EEO proceeding.

[00:07:52] Speaker 02:
Your Honor, the judge below never analyzed this document whatsoever.

[00:07:57] Speaker 02:
There is no discussion of it.

[00:07:59] Speaker 03:
Had that analysis... My understanding is Ms.

[00:08:02] Speaker 03:
Butylid didn't discuss this settlement agreement in her filing in the response to the show cause order.

[00:08:11] Speaker 03:
Is that right?

[00:08:12] Speaker 02:
It was directly given in response to that show cause order.

[00:08:16] Speaker 02:
These statements do speak volumes if given the proper plausibility on their face standard.

[00:08:23] Speaker 02:
On their face it is not implausible that there was something underlying this if the government would undertake a responsibility and legal obligation to investigate these things which are of a nature not directed to Title VII but to employment type issues.

[00:08:41] Speaker 02:
And so with the proper standard articulated in Cahill and the pro se liberality for amending, this would have been something that they could have given further specificity, saying this document may have more.

[00:08:53] Speaker 02:
Can you please, with another show cause order, spell this out?

[00:08:58] Speaker 02:
Instead, they didn't discuss this document at all.

[00:09:01] Speaker 02:
They never mentioned that EEO proceedings could, within them, have nested whistleblowing as a distinct activity.

[00:09:08] Speaker 02:
It never said any of that to her.

[00:09:10] Speaker 00:
What about page 8204, which is part of her submission up at the top?

[00:09:18] Speaker 00:
This seems to be where she mentions the complaint.

[00:09:23] Speaker 00:
And she says somebody was her direct line supervisor, and she had filed an EEO complaint against him for unprofessional conduct.

[00:09:32] Speaker 00:
But that, again, it's vague.

[00:09:37] Speaker 00:
I'm not sure how an administrative judge would

[00:09:40] Speaker 00:
look at that, and look at the settlement agreement, and take it together and understand what her EEO case was about sufficiently.

[00:09:53] Speaker 02:
Yes, it's certainly again a mention of the EEO complaint, but it's the allegations within that that we found the resolution.

[00:10:03] Speaker 02:
We have the end result, the one document that she still had access to that she put forward before the court, one of 20 pages.

[00:10:11] Speaker 02:
where the court could analyze those last three and say, you know, there might have been something underlying this.

[00:10:17] Speaker 02:
In fact, it was reasonable to assume the government wouldn't have undertaken that responsibility without having had some whistle-blowing disclosure there.

[00:10:25] Speaker 02:
It's inartfully perhaps stated here that it was the filing of the EO complaint against him.

[00:10:31] Speaker 02:
But we have the resolution of this entirely, which shows us on page 211 of the appendix that there was something there, at least plausibly, non-fibrillously, to ask for more.

[00:10:44] Speaker 00:
Can I ask you something else?

[00:10:45] Speaker 00:
It says on this, handwritten on this page, page 211, it says, my attorney agreed to this agreement.

[00:10:53] Speaker 00:
So why doesn't the attorney have the records of what was submitted during this proceeding?

[00:11:00] Speaker 02:
We do not have information as to those EEO proceedings.

[00:11:05] Speaker 02:
Those were in 2019.

[00:11:06] Speaker 02:
This is, of course, 2022 MSPB where she was pro se.

[00:11:11] Speaker 02:
We don't know why that is written there or what she had.

[00:11:15] Speaker 02:
But we do know she had to make FOIA requests to get the deeper documents.

[00:11:20] Speaker 02:
And those deeper documents do show

[00:11:22] Speaker 02:
that she was making clear whistle-blowing statements.

[00:11:25] Speaker 02:
And if this court would look, for example, at what is submitted at page 263 in the appendix, she talks about, in 2019, I submitted a JPRS related to medication issues.

[00:11:38] Speaker 02:
That's clearly safety in public health.

[00:11:40] Speaker 02:
That is whistle-blowing gold standard.

[00:11:42] Speaker 02:
She said she made that against, well, it's blocked out.

[00:11:47] Speaker 02:
And of course, a further supplementation of the record, a further opportunity to expand on this for Dr. Butylib, will allow us to see the things that she has written in this and supplement the record for her jurisdictional purposes.

[00:12:00] Speaker 04:
Now, to be clear, these are not part of the record in this case.

[00:12:04] Speaker 04:
These were submitted

[00:12:06] Speaker 04:
and put into the appendix in the appeal, right?

[00:12:10] Speaker 02:
Judge Bresson, they were not in the record below.

[00:12:12] Speaker 02:
The board did not see these.

[00:12:14] Speaker 02:
This is not something we're asking you to take for the truth of it, but to see rather what might be available and what she thinks is available and out there that she could expand the record with.

[00:12:25] Speaker 02:
Rule 16 flat does allow the court

[00:12:27] Speaker 02:
to Sue Esponte have these things added if they would like to the record, but it is not necessary.

[00:12:35] Speaker 02:
It could be just merely to recognize what other matter could be found if they had slightly more time to work on jurisdiction with Dr. Budilub's further direction.

[00:12:44] Speaker 04:
Now I take it that the response from the OSC we have, and the lawyer for the OSC has written a letter for

[00:12:55] Speaker 04:
to her in outlining in some detail the claims that she made to the OSC.

[00:13:01] Speaker 04:
Do we have her complaint to the OSC?

[00:13:03] Speaker 04:
I didn't see it in the record.

[00:13:05] Speaker 02:
Again, I think a lot of that is done with online fields, and she didn't have... I don't... Nothing in writing that she sent to the OSC?

[00:13:13] Speaker 04:
I mean, that would surprise me given the nature of the response, which was very detailed.

[00:13:20] Speaker 04:
Now, maybe she went through the details very carefully and extensively, but

[00:13:25] Speaker 04:
The letter I'm talking about, well, you know where it is.

[00:13:29] Speaker 04:
It's 200 through 202.

[00:13:34] Speaker 04:
Correct.

[00:13:34] Speaker 04:
It walks through a number of allegations.

[00:13:39] Speaker 04:
And it says, thank you for submitting your complaint of prohibited person.

[00:13:43] Speaker 04:
I had inferred that that was in writing, but we don't have that.

[00:13:48] Speaker 04:
I take it whether it was in writing or not.

[00:13:50] Speaker 02:
Your Honor, I do not understand why that was not part of the formal records submitted from the agency below.

[00:13:56] Speaker 02:
One other question.

[00:14:02] Speaker 04:
In that material, she has disclosure number five in which she says that Dr. Connor has been overpaid.

[00:14:15] Speaker 04:
In reading your brief, I didn't see that that was part of your brief.

[00:14:19] Speaker 04:
to us as a part of her whistle-blowing complaint.

[00:14:24] Speaker 04:
Is that right?

[00:14:25] Speaker 02:
I don't think it's material how much Dr. Cotter makes.

[00:14:31] Speaker 02:
What she was grieving and complaining about was her reduction in pay.

[00:14:36] Speaker 02:
I think she was maybe making a comparator.

[00:14:38] Speaker 04:
But I suppose you could say, at least hypothetically,

[00:14:46] Speaker 04:
Disclosures one through four are disclosures about her circumstances, why she felt that she was mistreated.

[00:14:52] Speaker 04:
But disclosure number five is a disclosure of what the VA is doing wrong out there other than things that have happened to her.

[00:15:02] Speaker 04:
But I don't understand you to be arguing that in this case.

[00:15:06] Speaker 02:
The wisdom of the court has seen a further possibility here, and I

[00:15:12] Speaker 02:
I would wholeheartedly agree with it, albeit not fully articulated in our briefing.

[00:15:17] Speaker 02:
This is one of the disclosures she was making.

[00:15:20] Speaker 02:
There are many, and many of them reach back to EEOC.

[00:15:23] Speaker 02:
Okay, you've spent all your better time, but we'll give you some back.

[00:15:26] Speaker 03:
Thank you.

[00:15:41] Speaker 01:
Please, the court.

[00:15:43] Speaker 01:
I'd like to start with Judge Bryson's very last question about disclosure number five.

[00:15:47] Speaker 01:
That is a disclosure she made to OSC.

[00:15:50] Speaker 01:
But all the disclosures she made to OSC were not the basis of her reprisal claim that would serve as how an IRA complaint is formed.

[00:15:57] Speaker 01:
IRAs are based on reprisal for whistleblowing.

[00:16:00] Speaker 01:
So she made all these complaints to OSC about Dr. Kotter's pay, nepotism, and other things.

[00:16:05] Speaker 01:
But she did not claim she was being retaliated against for making those disclosures to OSC.

[00:16:10] Speaker 01:
the one claim she made to the board and to OSC was that she was retaliated against for filing her EEO complaint.

[00:16:18] Speaker 01:
And as this court said in Spool and has continued to say all the way through Young, complaints of reprisal for making complaints of discrimination are not covered in IRA appeals.

[00:16:29] Speaker 04:
I'm not sure I understand the point you made right at the outset.

[00:16:34] Speaker 04:
Assuming, suppose she had said to the OSC that

[00:16:39] Speaker 04:
the entire staff, senior staff at the hospital, are taking bribes from pharmaceutical companies.

[00:16:51] Speaker 04:
Clearly, the kind of whistleblower disclosure that would light up the Christmas tree at the OSC.

[00:17:00] Speaker 04:
Are you saying that if she had put that in her complaint, it wouldn't have been cognizable in her IRA appeal?

[00:17:08] Speaker 01:
No.

[00:17:09] Speaker 01:
Well, when you're talking with OSCE complaints separately, going to OSCE and saying, yes, all these people are taking bribes, all kinds of other legal activity, that would certainly qualify as a... So her complaint disclosure number five about Dr. Cotter's pay,

[00:17:22] Speaker 04:
would fall into that category.

[00:17:24] Speaker 04:
It might not be as serious, but it would still be a whistleblower complaint, right?

[00:17:28] Speaker 01:
It would qualify as a disclosure of a violation of law, but then to be able to claim a violation of BH, she then needs to go on and claim she was retaliated against by the agency for making that disclosure to somebody.

[00:17:42] Speaker 04:
Setting aside retaliation, why would that disclosure not be

[00:17:47] Speaker 04:
within the jurisdiction of the board when she takes an appeal in this case.

[00:17:53] Speaker 04:
Did she limit herself just to retaliation?

[00:17:56] Speaker 01:
Because that was a claim she made to OSCE after the fact.

[00:17:59] Speaker 01:
After the fact of what?

[00:18:02] Speaker 01:
After she went to the OSCE in the first place.

[00:18:06] Speaker 01:
She went to OSCE, and I apologize.

[00:18:08] Speaker 01:
The timeline does get kind of rude, but it's on the way she presented claims to OSCE.

[00:18:12] Speaker 01:
She went to OSCE originally and presented

[00:18:15] Speaker 01:
six claims, or six allegations.

[00:18:19] Speaker 01:
Five of them are essentially disclosures of things that she is seeing that she believes are wrong, such as the things that happened to her, her reduction in pay, and everything else were alleged reduction in pay.

[00:18:29] Speaker 01:
But she does not claim then that the VA went and retaliated against her, which is the other part of an IRA claim.

[00:18:38] Speaker 01:
You have to claim that somebody retaliated against you for making those disclosures.

[00:18:42] Speaker 01:
She doesn't claim that her disclosures

[00:18:45] Speaker 01:
to OSC with a basis for reprisal.

[00:18:49] Speaker 01:
Or could they be because she was essentially going to OSC and complaining about her own personnel actions?

[00:18:55] Speaker 01:
Logically, the timeline doesn't fit.

[00:18:58] Speaker 01:
The one claim she claimed reprisal for, which she's arguing is the basis of her IRA appeal, is that she was retaliated against for filing her EEO complaint in 2019.

[00:19:09] Speaker 01:
And that's the claim that is excluded from IRA jurisdiction.

[00:19:13] Speaker 00:
Now, there was a change in law between Spruill and 2019, right?

[00:19:17] Speaker 00:
Yes.

[00:19:17] Speaker 00:
So there is some short, small area in which somebody could rely on proceedings that occurred in the EEO proceedings, things that were said, allegations that were made, that would constitute proper whistleblowing made in the context of those proceedings, right?

[00:19:35] Speaker 01:
Correct, yeah.

[00:19:36] Speaker 00:
And that was not the law at the time of Spruill.

[00:19:38] Speaker 01:
There was not the law at the time of Spruill.

[00:19:40] Speaker 01:
The WPEA passed in 2012.

[00:19:43] Speaker 01:
But this court, since the passage of WPEA, has continued to rely on Spruill and Sarau and other cases about that line set forth in Spruill about IRAs excluding discrimination complaints.

[00:19:55] Speaker 01:
And if you look at the legislative history... Sure.

[00:19:56] Speaker 00:
If it's just a complaint, if it's just a discrimination claim, then that is not going to be the whistleblowing activity that falls under Section 8.

[00:20:04] Speaker 00:
Yes, correct.

[00:20:06] Speaker 03:
So just to put a finer point on it, if during the EEO proceeding, Dr. Budelib also made a disclosure, an allegation, a specific allegation that all the management team in the hospital was taking bribes,

[00:20:26] Speaker 03:
that would qualify as a 2302b8 protected disclosure, even though it was done in the context of an EEO proceeding?

[00:20:36] Speaker 01:
So that specific question is not one that this court nor the board have actually answered.

[00:20:41] Speaker 01:
I'm asking you a question.

[00:20:42] Speaker 01:
So that is certainly something that is possible and within the reading of the statute.

[00:20:47] Speaker 03:
So you agree, in that hypothetical, that would qualify as 2302b8 protected activity?

[00:20:55] Speaker 01:
I think based on the reading of the statute, yes, that was something that could potentially qualify.

[00:20:59] Speaker 01:
Again, this court, I think in the McLaughlin case recently cited by a petitioner in the 28-J letter, expressly said it wasn't answering that question, and neither the board has not answered that question yet, and so I don't want to get ahead of either forum there, but certainly on the language of the statute, if it was presented in a way

[00:21:16] Speaker 01:
where it was meant to report whistleblowing, then certainly in the face of the statute it could possibly qualify.

[00:21:22] Speaker 01:
But that's also not what this case presents because even looking at petitioners' allegations in the light most favorable to her, what she's presented is, in the context of an EEO complaint,

[00:21:33] Speaker 01:
complaints about the quality between employees.

[00:21:36] Speaker 01:
And so the only way you can even really look at these allegations are as discrimination allegations.

[00:21:42] Speaker 01:
And even that is very generous to petitioners, given the lack of specificity.

[00:21:46] Speaker 00:
What is discrimination generally?

[00:21:49] Speaker 01:
I think even discrimination generally is covered by the board decision in Edwards, in which an individual talked about complaining.

[00:21:56] Speaker 03:
Is that a presidential or non-presidential?

[00:21:57] Speaker 03:
Edwards is a public decision of the board.

[00:21:59] Speaker 03:
OK.

[00:21:59] Speaker 01:
Yes.

[00:22:00] Speaker 01:
Of the board?

[00:22:00] Speaker 01:
Of the board, yes.

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

[00:22:02] Speaker 01:
where an individual complained about discrimination against all African-Americans, and the board said that's still just a discrimination complaint.

[00:22:10] Speaker 01:
It is not covered under B-8.

[00:22:14] Speaker 01:
But looking at petitioner's allegations here, again, she doesn't really provide much detail at all.

[00:22:20] Speaker 01:
The one affirmative statement she makes is, I was retaliated against for filing my Yale complaint.

[00:22:25] Speaker 01:
And then she, in that submission, includes a settlement agreement with

[00:22:30] Speaker 01:
forward fairly generic commitments to investigate potential inequality between employees in the agency.

[00:22:40] Speaker 00:
But there's no... Well, she complained about how residents are assigned a mature, standardized process.

[00:22:45] Speaker 00:
Let's assume that she did that.

[00:22:47] Speaker 00:
She needed the American College of Graduate Medical Education Guidelines.

[00:22:52] Speaker 00:
What is your position?

[00:22:56] Speaker 01:
If there was more specificity about how there was an actual violation of law, rule, procedure, or anything, she would certainly get closer.

[00:23:06] Speaker 01:
But the first thing she would have to do is, one, point the board to this agreement, which, as you pointed out, she did not do.

[00:23:13] Speaker 01:
And then, two,

[00:23:15] Speaker 01:
explain why this is not a complaint about equality when she's still talking about treatment.

[00:23:21] Speaker 00:
I think she needed to point to the settlement agreement if it was attached to a small group of papers.

[00:23:26] Speaker 00:
But regardless, your second point is that this specific statement is not specific enough.

[00:23:34] Speaker 00:
I'm sorry.

[00:23:35] Speaker 00:
The statement I read to you was just under D.

[00:23:38] Speaker 01:
Yes, I would say it's not specific enough, because again, looking at it in the context of how she's writing it, in the context of an EEO claim, it appears to be, when you're talking about distribution, you're still talking about giving one thing to another.

[00:23:51] Speaker 01:
It's still a complaint about equality between employees, which in the course of an equal employment opportunity context looks like a discrimination complaint.

[00:24:07] Speaker 04:
Let me circle back and make sure I understood your answer to one of my earlier questions.

[00:24:15] Speaker 04:
I think you said with respect, again, to Dr. Cotter's pay that she made that complaint to the OSC.

[00:24:23] Speaker 04:
And were you saying that that, therefore, was not a whistleblower complaint because that's not enough to trigger whistleblower liability because it was made initially to the OSC?

[00:24:37] Speaker 01:
That's what I thought you were saying.

[00:24:43] Speaker 01:
So in order to present a claim of an IRA, a violation of 2302B8, you must allege, one, you made a protected disclosure, but two, you retaliated against her making that disclosure.

[00:24:54] Speaker 04:
Let's take this out of the retaliation setting.

[00:24:56] Speaker 04:
What I'm asking is suppose that she's saying there's retaliation, but in one instance, she's saying, and beyond that,

[00:25:05] Speaker 04:
There's something going on here.

[00:25:07] Speaker 04:
Either Dr. Carter's being overpaid or, to take my hypothetical, everybody in the upper management is taking bribes.

[00:25:14] Speaker 04:
And she makes that to the OSC.

[00:25:16] Speaker 04:
Is that a whistleblower complaint, I'll say first?

[00:25:22] Speaker 01:
So that's a whistleblower disclosure.

[00:25:25] Speaker 01:
It's a whistleblower disclosure.

[00:25:26] Speaker 01:
Yes.

[00:25:27] Speaker 04:
It qualifies.

[00:25:28] Speaker 01:
Yes.

[00:25:28] Speaker 04:
And therefore, if OSCE says POP and goes off, she can go to the Merit Systems Protection Board with that as the centerpiece of her complaint, correct?

[00:25:40] Speaker 04:
Centerpiece of half of her complaint.

[00:25:42] Speaker 04:
I want you right now to take retaliation and throw it in the ocean.

[00:25:46] Speaker 04:
I want you to focus entirely on

[00:25:49] Speaker 04:
the question of whether there is an actual whistleblower disclosure that's actionable once exhausted through the OSC, in my example.

[00:26:02] Speaker 01:
Your Honor, respectfully, I can't simply throw the retaliation part in the ocean because it's the other half of the complaint.

[00:26:07] Speaker 01:
If you just go to the board and say I made a disclosure and nothing happened, there's nothing to remedy.

[00:26:11] Speaker 04:
OK, then keep it in the complaint.

[00:26:12] Speaker 04:
But part two of my complaint is, and then she says it's the disclosure that I made to OSC.

[00:26:20] Speaker 04:
And as to that, I'm not arguing retaliation.

[00:26:24] Speaker 04:
I'm arguing that there was a disclosure and nothing was done.

[00:26:33] Speaker 01:
So in that incident of disclosure, yes, there would be a disclosure on it.

[00:26:37] Speaker 01:
But then there would be nothing for the board to remedy.

[00:26:38] Speaker 01:
And it would essentially just be an advisory complaint.

[00:26:41] Speaker 00:
Just to be clear, you're saying that is a disclosure.

[00:26:43] Speaker 00:
That would be a whistleblowing disclosure that satisfies 2302B8.

[00:26:47] Speaker 01:
Yes.

[00:26:48] Speaker 01:
That would be a disclosure.

[00:26:51] Speaker 01:
Somebody's taking a bribe.

[00:26:53] Speaker 01:
That's true.

[00:26:53] Speaker 01:
That's a disclosure.

[00:26:54] Speaker 01:
It's a B8.

[00:26:55] Speaker 01:
And then you have to go back and say, and by the way, they demoted by pay.

[00:26:59] Speaker 01:
Oh, I understand.

[00:27:01] Speaker 01:
Okay, thank you.

[00:27:03] Speaker 01:
If this court has no further questions, then we request that you affirm the decision the board is missing for lack of jurisdiction.

[00:27:12] Speaker 01:
Thank you.

[00:27:16] Speaker 03:
Thank you.

[00:27:17] Speaker 03:
Give counsel two minutes, please.

[00:27:22] Speaker 02:
Thank you, Your Honor.

[00:27:23] Speaker 02:
If McLaughlin shows us anything, this after-rising decision, is that there are some questions here.

[00:27:29] Speaker 02:
There are shifting legal standards.

[00:27:31] Speaker 02:
And under this case, it would be suitable to remand so that the complainant can modify those jurisdictional disclosures.

[00:27:48] Speaker 02:
It's very clear that Cahill teaches us that we should freely give leave to amend when justice so requires.

[00:27:55] Speaker 02:
This isn't a one strike and you're out.

[00:27:57] Speaker 02:
A show cause order could have developed these things.

[00:28:00] Speaker 02:
They didn't even address the settlement agreement.

[00:28:03] Speaker 02:
On the contrary, they ignored it.

[00:28:05] Speaker 02:
And Dr. Budilov didn't have any idea that she should have expanded on what was in that EEO complaint to show the true whistle-blowing nature of many of those disclosures.

[00:28:16] Speaker 02:
The board said nothing regarding that, and it should be remanded with further instruction to seek out and find out what was in that EEO complaint.

[00:28:26] Speaker 02:
There's at least a plausible argument, non-frivolous argument, that there were

[00:28:33] Speaker 02:
whistle-blowing directed disclosures made in that EEO proceeding.

[00:28:39] Speaker 02:
And I would ask the court to remand for that purpose.

[00:28:43] Speaker 03:
Mr. Courtson-Bell, are you and your co-counsel representing Appellant Pro Bono offer this appeal?

[00:28:50] Speaker 03:
We are.

[00:28:51] Speaker 03:
Okay.

[00:28:52] Speaker 03:
The court thanks you for your service.

[00:28:54] Speaker 03:
Thank you.

[00:28:55] Speaker 03:
Okay.

[00:28:55] Speaker 03:
This case is submitted.