[00:00:00] Speaker 00:
The last case this morning was Ralph Aranis versus the Department of Defense, 2023, 1806.

[00:00:36] Speaker 00:
Mr. Day, we're ready when you are.

[00:00:54] Speaker 02:
Thank you, Your Honors, and may it please the Court.

[00:00:56] Speaker 02:
Mr. Orianis was terminated more than a decade ago for blowing the whistle on government waste.

[00:01:02] Speaker 02:
Nine years ago, the Board ordered that he be reinstated with back pay.

[00:01:07] Speaker 02:
Now, the Board is refusing to enforce that order against the Department of Defense.

[00:01:12] Speaker 02:
It does so based on two legal errors.

[00:01:15] Speaker 02:
First, it assumed Mr. Arianas' disability retirement was an intervening separation that cut off his entitlement to reinstatement.

[00:01:23] Speaker 02:
The record actually shows that he never intended to retire.

[00:01:27] Speaker 02:
Instead, his supervisor initiated the retirement paperwork relying on the underlying whistleblower activity as a basis.

[00:01:34] Speaker 01:
He may not have intended to retire, but he took all the objective steps leading to retirement, right?

[00:01:43] Speaker 02:
Yes, other than the fact that his supervisor initiated the paperwork.

[00:01:46] Speaker 02:
So he could have initiated the paperwork himself.

[00:01:48] Speaker 01:
He did file paperwork, or he prepared paperwork.

[00:01:52] Speaker 02:
Yes, he prepared paperwork, but he never filed for retirement until after he was terminated for whistleblowing activity.

[00:01:59] Speaker 02:
And he never intended to, as he stated in his declaration, which starts on Appendix Page 1602, to retire.

[00:02:06] Speaker 02:
Instead, he did so to avoid the severe economic consequences that would have followed from his unlawful termination.

[00:02:15] Speaker 00:
But didn't the board find that he was not ready, willing, and able to perform?

[00:02:21] Speaker 02:
Yes, the board found that he was not ready, willing, and able to perform.

[00:02:24] Speaker 02:
That finding was based on a legal error, but setting that aside in the context of reinstatement, the ready, willing, and able question is one that is distinct from the question of reinstatement.

[00:02:34] Speaker 02:
And that's clear from the regulatory structure.

[00:02:36] Speaker 02:
The regulation where that language comes from is a limitation on the calculation of back pay.

[00:02:42] Speaker 02:
OPM says that you cannot provide back pay for any period during which the individual was not ready, willing, and able to work based on an incapacitating illness.

[00:02:50] Speaker 02:
So the finding based on ready, willing, and able is distinct from the reinstatement question.

[00:02:55] Speaker 02:
I think on this record, the evidence shows that Mr. Arianes never would have retired absent his unlawful conduct.

[00:03:01] Speaker 02:
And that alone is sufficient to require reversal on the reinstatement question.

[00:03:06] Speaker 02:
And the second legal error.

[00:03:08] Speaker 01:
Other than his declaration, what's the evidence?

[00:03:10] Speaker 01:
What's the proof that you have of that?

[00:03:13] Speaker 02:
In addition to his declaration, the supervisor statement itself, because the disability retirement was initiated by the supervisor, and because that statement relied on the very underlying whistleblower conduct, that infects the determination of disability here.

[00:03:29] Speaker 02:
They said that he could not work because he wasn't performing his job, because he was engaging in whistleblowing activity, as found by the board and as uncontested.

[00:03:36] Speaker 01:
How did it infect?

[00:03:37] Speaker 01:
the other question.

[00:03:40] Speaker 02:
So I think the timing here is key.

[00:03:42] Speaker 02:
So that paperwork started and was initiated by the supervisor in July of 2014.

[00:03:47] Speaker 02:
So it was done in parallel to the removal for termination.

[00:03:50] Speaker 02:
So you have to think about the context in which the agency is trying to force him out by hook or by crook.

[00:03:55] Speaker 02:
either terminating him for whistleblowing activity or forcing him into retirement.

[00:04:00] Speaker 02:
And that is why there's a connection between the disability retirement and the underlying whistleblower activity that provides further support.

[00:04:07] Speaker 02:
And I think, in addition, none of these facts have been disputed in the brief from the Department of Defense.

[00:04:13] Speaker 02:
They didn't question his underlying declaration that said he never would have retired absent the unlawful termination action.

[00:04:20] Speaker 02:
And I think that is why, in the but for a world, Mr. Arianes would never have retired.

[00:04:26] Speaker 02:
And that alone requires his reinstatement starting on September 3, 2024.

[00:04:32] Speaker 02:
And concluding otherwise would be inconsistent with this court's decision in Martin versus the Department of Air Force, where the court looked behind the reasons why an individual was injured during interim employment to show that that injury never would have occurred but for the unlawful termination action.

[00:04:50] Speaker 02:
And it would also be consistent with basic remedial principles and cases from other circuits, Biggs, Leibowitz, and other courts like Payne and Paula.

[00:04:59] Speaker 04:
So I think you're anticipating one of my questions.

[00:05:00] Speaker 04:
So what are your best cases to support your arguments here?

[00:05:04] Speaker 04:
It sounds like Martin is one of your best cases.

[00:05:06] Speaker 04:
What are your other controlling best cases?

[00:05:08] Speaker 02:
So Wicker from the Supreme Court that established the underlying principle of but for relief 150 years ago.

[00:05:15] Speaker 02:
And it's kind of the fundamental thing that is what relief is about here,

[00:05:20] Speaker 02:
is returning him to the world that he would have occupied but for the harm.

[00:05:24] Speaker 02:
And on this record, that would be reinstatement because he testified in his declaration that he never would have retired in this case.

[00:05:31] Speaker 01:
But for how long?

[00:05:32] Speaker 01:
Because he also filed his disability paperwork.

[00:05:35] Speaker 02:
Yes, he filed his disability paperwork, but he did so after he was terminated.

[00:05:39] Speaker 02:
So that decision to retire is connected with the underlying termination because he never would have filed it.

[00:05:45] Speaker 01:
That's the problem in filing his disability

[00:05:49] Speaker 01:
He had to declare that he wasn't fit for work, that he was disabled.

[00:05:55] Speaker 02:
That's not exactly right based on the application for disability retirement.

[00:05:59] Speaker 02:
So he had to declare that he had a disability, but the application never required that he say that that disability could not be accommodated.

[00:06:07] Speaker 01:
Well, he had notes from his doctor and everything saying that he could not any longer work.

[00:06:14] Speaker 02:
Yes, he had a note in 2014 that suggested that he had a disability, but it never spoke to the accommodation point.

[00:06:21] Speaker 02:
And I think that's kind of the same point here, where the disability application itself never required Mr. Arianez to say that he could not work with accommodation.

[00:06:30] Speaker 02:
It did require him to say what accommodations he had been provided, if any, but it did not require him to affirmatively state that he could not work without accommodation.

[00:06:39] Speaker 02:
And this returns to the point that his termination cut off his ability to have an ergonomic work assessment, which he had requested from the department and was pending at the time of his termination.

[00:06:50] Speaker 01:
So his doctor's note, at least one of them that I saw, said that he was in pain and said, quote, do not allow him back to work.

[00:07:01] Speaker 02:
I don't think the doctor's note said specifically that he was not allowed back to work.

[00:07:07] Speaker 02:
It said that... Yeah, it was saying don't allow him back to work.

[00:07:12] Speaker 02:
I don't think the doctor's note said that.

[00:07:13] Speaker 02:
The 2014 note said that don't allow him back to work.

[00:07:17] Speaker 02:
It said that he be considered for disability retirement.

[00:07:20] Speaker 02:
It said specific facts about his medical condition, but I don't think the doctor's note specifically said that he was not allowed to return to work.

[00:07:28] Speaker 04:
Maybe it'd be useful for you to take us to the appendix page and actually look at that doctor's note.

[00:07:33] Speaker 02:
So the 2014 note is on appendix 532.

[00:07:39] Speaker 02:
And the sentence that I'm referencing here is the very last one, where it says, I recommend he be considered for medical disability.

[00:07:47] Speaker 02:
It does say that he continues to have significant pain that do not allow him to perform his job.

[00:07:52] Speaker 02:
And I think that's what Judge Raina is referencing.

[00:07:54] Speaker 02:
But I want to draw the distinction here about accommodation.

[00:07:57] Speaker 02:
So Mr. Arianes always could be accommodated, and his application always indicated that his accommodation was pending.

[00:08:02] Speaker 02:
There's no question here that Mr. Arianes had back pain.

[00:08:05] Speaker 02:
There's no question that he had wrist pain.

[00:08:07] Speaker 02:
It's whether he could have been accommodated in his position, and his termination, unlawful termination, cut off that ability.

[00:08:14] Speaker 02:
And I think more generally, it's clear that the rightful position here, the position he would have occupied but for the wrong, is not having applied for retirement.

[00:08:23] Speaker 02:
The facts are just uncontested on that point because his declaration has not been challenged.

[00:08:28] Speaker 02:
His supervisor's statement was related and infected to that problem.

[00:08:32] Speaker 02:
And I think that alone requires reinstatement.

[00:08:35] Speaker 02:
I think there's a separate question of back pay here as to whether he was ready, willing, and able to work during the entire period.

[00:08:42] Speaker 02:
On that issue, the board also committed a legal error.

[00:08:45] Speaker 02:
It placed the burden on Mr. Arianas of showing that he was ready, willing, and able to work during the entire period when that burden under board regulations clearly fell on the Department of Defense.

[00:08:56] Speaker 02:
Correcting for that legal error, Mr. Arianas is entitled to back pay starting at least as of August 23rd, 2016 through present,

[00:09:04] Speaker 02:
and a remand to adjudicate his back pay claim before that.

[00:09:08] Speaker 01:
Is he getting disability payments now?

[00:09:11] Speaker 02:
Yes.

[00:09:12] Speaker 02:
That's not currently the record.

[00:09:13] Speaker 01:
Do you have to return that?

[00:09:15] Speaker 02:
Yes, and that's provided for in the regulation.

[00:09:18] Speaker 02:
So in the same regulation that addresses back pay, it acknowledges that any retirement benefits that had been paid that wouldn't have been paid absent the unlawful termination are returned.

[00:09:30] Speaker 02:
They're credited against the back pay.

[00:09:31] Speaker 01:
Do you see any legal bar for reinstatement

[00:09:35] Speaker 02:
No, there's no legal bar for a reinstatement here.

[00:09:37] Speaker 02:
And in fact, the law requires that Mr. Arianes be reinstated because the basic remedial principles are clear that he never would have retired absent the unlawful termination action.

[00:09:49] Speaker 02:
So I think legal principles actually, in fact, require that he be reinstated.

[00:09:53] Speaker 02:
It does not bar him from being reinstated to his position or a comparable position.

[00:09:59] Speaker 02:
And in returning to the back bay question, there's just no affirmative evidence in this record, starting on August 23, 2016, to show that Mr. Arianes was not ready, willing, and able to work.

[00:10:10] Speaker 02:
The entire basis of the board's decision on that score was that Mr. Arianes had not carried his burden that was improperly placed on that.

[00:10:18] Speaker 02:
You can see that at appendix pages 14 and 15, where it's discussing the 2016 note.

[00:10:24] Speaker 02:
The board affirmatively acknowledges that note was not inconsistent with the 2014 note and goes on to say, it just isn't enough.

[00:10:31] Speaker 02:
We don't think that note is enough affirmative evidence to carry its burden.

[00:10:35] Speaker 02:
But that is not the standard here.

[00:10:38] Speaker 02:
Instead, the burden fell on the Department of Defense to prove that.

[00:10:42] Speaker 02:
And since there's no evidence, there's no reason for this court to remand that question for the board to address it anew.

[00:10:47] Speaker 02:
And I think that's especially apparent here because the Department of Defense always had the opportunity

[00:10:54] Speaker 02:
to request medical records from Mr. Arianes.

[00:10:57] Speaker 02:
The remand initial decision when it awarded Mr. Arianes relief also directed him to comply with any requests from the Department of Defense for his medical records necessary to assess the back pay question.

[00:11:11] Speaker 02:
So there's just no affirmative evidence on the record after that point.

[00:11:15] Speaker 02:
Moreover, for the date before August 23rd, 2016, the burden issue was bound to too tightly with the record below and the decision below to say that that was harmless.

[00:11:27] Speaker 02:
Instead, and the department hasn't made that argument that it was harmless, instead a remand would be appropriate for the board to apply the correct burden framework initially.

[00:11:38] Speaker 02:
So I think for all those reasons, the board's decision on reinstatement ought to be reversed.

[00:11:45] Speaker 02:
The board's decision on back pay from August 23rd, 2016 on should be reversed.

[00:11:50] Speaker 02:
And the board's decision on back pay before that date should be remanded for an adjudication.

[00:11:54] Speaker 02:
And generally, it should be remanded.

[00:11:55] Speaker 04:
I disagree with you.

[00:11:56] Speaker 04:
On your burden-shifting argument, what would be the relief you'd still be seeking from us?

[00:12:03] Speaker 02:
I see my time isn't rebuttal.

[00:12:05] Speaker 00:
Well, you may answer the question.

[00:12:06] Speaker 02:
Thank you, Your Honor.

[00:12:08] Speaker 02:
We would still went on reinstatement.

[00:12:09] Speaker 02:
So the reinstatement question is distinct from the back pay question.

[00:12:13] Speaker 02:
So Mr. Arianes would be ordered to be reinstated from September 30, 2014 through present.

[00:12:20] Speaker 02:
And then the question could be remanded or the issue could be presented to OPM on how that affects his ongoing retirement benefits.

[00:12:28] Speaker 02:
But I don't think the court would need to address that question here.

[00:12:30] Speaker 04:
And if we disagree with you on the burden shifting argument, do you still contend that he would be

[00:12:37] Speaker 04:
Are you continuing that you want to reverse or a baking remand, or what would you want in terms of disposition?

[00:12:42] Speaker 02:
So we have an alternative argument on the back bay question, in that there's no evidence from August 23rd, 2016 moving forward such that the government could not even carry its initial burden of production to create a concrete dispute under Pecone.

[00:12:55] Speaker 02:
So that would require a reversal for that period as well.

[00:13:00] Speaker 00:
Thank you, Mr. David.

[00:13:01] Speaker 00:
I'll save you time.

[00:13:24] Speaker 03:
Good morning, Your Honor, and may it please the court.

[00:13:27] Speaker 03:
Here, substantial evidence requires that the court affirm the board's decision that the agency, in fact, did comply with the board's order that required reinstatement of Mr. Arianas and payment of back pay pursuant to OPM's regulations.

[00:13:43] Speaker 03:
Substantial evidence is under review here because it is at base a factual finding that is an issue, that being whether at any point in time Mr. Arianas was ready, willing, and able to work.

[00:13:55] Speaker 03:
That is the regulatory exception at issue here for the non-payment of back pay below the board and its decision after Ms.

[00:14:04] Speaker 03:
Rarianas was provided additional chances to establish with record evidence his ability to be ready, his readiness, willingness, and ability to work.

[00:14:15] Speaker 04:
The board weighed all the evidence put forth, found that because the evidence submitted...

[00:14:27] Speaker 03:
Your Honor, no, I do not agree with that conception of what has gone on here.

[00:14:30] Speaker 03:
The board recognized, for example, at appendix 15, that the agency canceled the removal effect of September the 30th of 2014 by revising the standard form 50 that it previously represented that Mr. Arianes had been removed.

[00:14:51] Speaker 03:
The agency revised that to represent the current status, which was that Mr. Arianas had retired from disability.

[00:14:59] Speaker 03:
And the board says, thereby retroactively reinstating the appellant to his position.

[00:15:05] Speaker 03:
The board goes on to recognize on Appendix 16 that under the unique circumstances of this case, there simply is no additional relief that the agency could have reasonably provided Mr. Arianas

[00:15:17] Speaker 03:
insofar as it relates to reinstatement.

[00:15:20] Speaker 03:
And that dovetails on the point about his not showing the readiness, willingness, or ability to work during any of the relevant period.

[00:15:30] Speaker 03:
Additionally, the board takes... Go ahead.

[00:15:34] Speaker 04:
So I'm a little bit confused.

[00:15:36] Speaker 04:
I'm on paragraph 23 on appendix 15, where it says the agency did not reinstate the fraud to its position following the board's found decision reversing removal.

[00:15:46] Speaker 04:
But you tell me that you do think that there was reinstatement.

[00:15:49] Speaker 04:
So where were you pointing to?

[00:15:51] Speaker 03:
Your Honor, I guess it's a paper reinstatement in that on the SF-50, there was, rather than him being reflected as being removed, there was a change to reflect that he had retired on disability from his position that he was in before he retired.

[00:16:10] Speaker 03:
He was not put back into a position actually, but rather the paper record, rather than reflecting the improper removal, which admittedly the record below establishes that removal was improper, he was on paper

[00:16:29] Speaker 03:
reflected in his present condition, which is retired on disability.

[00:16:35] Speaker 03:
And as counsel opposite confirmed today, he continues to receive disability annuity payments to this day.

[00:16:43] Speaker 01:
So when that happens, do you notify the veteran and say, we're about to take this action, we're going to take back the wrongful termination, and we're now going to put you on this disability benefit program?

[00:16:58] Speaker 01:
It seems to me that Mr. Arianas at some point has sandbagged here.

[00:17:05] Speaker 03:
Your Honor, I would disagree that there's been sandbagging here, but rather, Mr. Arianas... Well, there was an original finding that he had been improperly terminated.

[00:17:18] Speaker 01:
Correct.

[00:17:18] Speaker 01:
And that he was due back pay.

[00:17:20] Speaker 03:
Correct.

[00:17:21] Speaker 01:
But he was never reinstated.

[00:17:23] Speaker 01:
He was never given any back pay.

[00:17:26] Speaker 01:
Instead, he was handed another determination that he was now disabled and receiving disability benefits.

[00:17:37] Speaker 03:
Your Honor, he was not handed a disability retirement without his say, but rather the record establishes, as you were speaking with Mr. Day about the statements that Mr. Arianes made to OPM in requesting disability retirement annuity payments.

[00:17:56] Speaker 01:
Yeah, I get that.

[00:17:56] Speaker 01:
Let me ask you this question.

[00:17:58] Speaker 01:
Can an employee's disability retirement service a per se bar to end statement?

[00:18:05] Speaker 03:
I don't believe so, Your Honor, and I think the board recognizes that.

[00:18:08] Speaker 01:
Give me an example when it doesn't.

[00:18:11] Speaker 03:
When the employee's retirement on disability benefits or retirement on disability retirement is not a per se bar,

[00:18:20] Speaker 03:
I believe this case is a representation of that, in that the board's decision below, while it considers the fact, undisputed, that Mr. Arianes had retired on disability, had been found by OPM to be eligible to receive a disability retirement annuity, that is only one factor in the board's weighing of all of the record evidence that was before it.

[00:18:45] Speaker 03:
There additionally is all of the attempted showings found to be incredible by the board that Mr. Arias at any point was, in fact, ready, willing, and able to work.

[00:18:58] Speaker 01:
OPM's finding... But he claims that he took those steps because he was about to be terminated.

[00:19:08] Speaker 01:
So he initiated, in order to keep a flow of income, he initiated thinking that he's thinking ahead as to what he needs to do.

[00:19:19] Speaker 01:
And it was all propelled by the notion that he was going to be terminated.

[00:19:26] Speaker 03:
Your Honor, that is a statement made by Mr. Arianez almost three years after initially applying for disability retirement with OPM.

[00:19:34] Speaker 03:
and that statement as well as inconsistent as the board recognizes with other record evidence that preponderates actually that Mr. Arianas at the time he applied for disability benefits was disabled and entitled to receive a disability retirement annuity.

[00:19:49] Speaker 01:
But just to be clear, you did say that it's your view that disability retirement does not serve as a per se bar to reinstatement.

[00:20:00] Speaker 03:
That's correct and the board's opinion in

[00:20:03] Speaker 03:
Disagreeing with the administrative judges ruling on judicial estoppel, I think, lends to that notion as well, that ultimately it's the board's province to decide whether at any point, at least insofar as back pay is concerned, the petitioner demonstrated in response to the agency's initial concrete evidence whether at any point he was really willing and able to work.

[00:20:29] Speaker 04:
There are a couple different doctor's notes here, right?

[00:20:32] Speaker 04:
There's the 2016 doctor's note, right, where it does have statements about ready, willing, and able to work.

[00:20:40] Speaker 04:
So does your viewpoint change in terms of the time period on your arguments relating to ready, willing, and able to work?

[00:20:48] Speaker 04:
Because I know that there's a time period of 2014 to 2016 where there's a different doctor's note that might be applicable in covering some of that time.

[00:20:58] Speaker 04:
versus 2016 moving forward?

[00:21:02] Speaker 03:
No, Your Honor.

[00:21:03] Speaker 03:
Our position is that substantial evidence supports the board's decision that Mr. Arianez at no time met his responsive burden to establish that he was ready, willing, and able to work at any point.

[00:21:17] Speaker 03:
And that took into consideration the August 2014 statements by the doctor, Dr. Rivera, took into account the statements consistent in August 2014 as well of Mr. Arianas himself in the disability application, chronicling all of his conditions that he believed entitled him to disability retirement.

[00:21:40] Speaker 03:
And then we have the August 23, 2016 letter from Dr. Rivera, where the board considers that as well.

[00:21:47] Speaker 03:
And this is all Appendix 11 through 13, where the board methodically walks through all of this evidence.

[00:21:52] Speaker 03:
The August 23, 2016 letter from the doctor, while not inconsistent, per se, with the earlier August 2014 letter from Dr. Rivera and Mr. Arianez's statements to OPM, is inconsistent with a

[00:22:10] Speaker 03:
later June 2017 letter from Dr. Rivera, where he states for the first time, as does Mr. Arianes in July 2017, that actually Mr. Arianes was ready, willing, and able to work since September 30, 2014.

[00:22:29] Speaker 03:
At base, Your Honor, we have a panoply of inconsistent statements about his readiness, willingness, and ability to work in the record.

[00:22:39] Speaker 03:
It is the epitome of substantial evidence review that when we have inconsistent facts in the record such as this that may lead a reasonable person to find, support a conclusion, this court should not, it's not a de novo appraisal for this court to second guess or substitute this judgment for that of the board.

[00:23:00] Speaker 03:
The board's opinion here is supported by substantial evidence, again, Appendix Pages 11 through 13, walking methodically through all of the evidence propounded before the board.

[00:23:11] Speaker 03:
Again, with additional opportunity, I do believe a rare opportunity that the full board actually orders a further record development and provides both the petitioner and the agency, but the petitioner for sure,

[00:23:26] Speaker 03:
who has in his custody admittedly the confidential medical records that could establish his readiness, willingness, and ability to work, gave him that opportunity to do so in 2017.

[00:23:39] Speaker 03:
With that additional record development, the board weighed everything and found that there was no showing that he was ready, willing, and able to work at any point

[00:23:48] Speaker 03:
during the period.

[00:23:49] Speaker 03:
So to Judge Cunningham's point, September 2014 versus August 2016, our position is the same.

[00:23:57] Speaker 03:
Substantial evidence doesn't establish.

[00:24:00] Speaker 03:
Our substantial evidence supports the board's finding that there is no showing of a readiness, willingness or ability to work.

[00:24:09] Speaker 04:
What if we were to

[00:24:11] Speaker 04:
agree that there was some error made here with respect to reinstatement, and then send it back to deal with more of these factual considerations regarding this ready, willing, and able to work point.

[00:24:26] Speaker 04:
What do you think of that possible disposition, and what's your response?

[00:24:30] Speaker 03:
Your Honor, again, given what the Board recognized on Appendix 16 to be the unique circumstances of this case, Mr. Arianas has been provided the full relief that reasonably is available in this case.

[00:24:45] Speaker 03:
The agency did what it reasonably could do, so far as reading the statement is concerned, by revising the SF-50 to reflect that he had retired on disability, as he undisputedly did, and

[00:24:59] Speaker 03:
Putting him into a different position is simply antithetical to him being on disability retirement.

[00:25:09] Speaker 03:
A condition, an element of OPM's determination of him being eligible for retirement annuity payments is that he cannot render useful and efficient service in his position.

[00:25:24] Speaker 04:
whole relief here?

[00:25:25] Speaker 03:
Yes, Your Honor.

[00:25:26] Speaker 03:
He has received, under the unique circumstances of this case, he has received make-whole relief, such that in the world but for having been improperly removed, he nonetheless has received all back pay he is entitled to, and he has, with regard to reinstatement, also received all relief the agency could reasonably provide.

[00:25:55] Speaker 04:
You said all back pay is entitled to.

[00:25:57] Speaker 04:
How much back pay are you saying he's received?

[00:25:59] Speaker 03:
He's received none.

[00:26:00] Speaker 03:
He's entitled to none.

[00:26:02] Speaker 04:
I thought that.

[00:26:03] Speaker 04:
OK.

[00:26:03] Speaker 04:
So you're saying he's entitled to none and he's received none, not that he somehow received some sort of back pay.

[00:26:09] Speaker 03:
The agency is in compliance, as the board found, with the board's order to reinstate and pay back pay to pursue into OPM regulation.

[00:26:16] Speaker 01:
Refresh my memory.

[00:26:21] Speaker 01:
Who files the form F50?

[00:26:24] Speaker 03:
The standard form 50, your honor, I believe you're referring to, is not a form, I don't believe, that is filed anywhere, but rather is a component of an employee of the federal government's official personnel file that is a... Who prepares it?

[00:26:41] Speaker 03:
The agency, the employing agency prepares that standard form 50.

[00:26:45] Speaker 03:
And there's no input by the employee?

[00:26:48] Speaker 03:
I don't believe there's input to the employee.

[00:26:52] Speaker 03:
Your Honor, I can't speak specifically as to whether an employee may have input in certain circumstances.

[00:26:58] Speaker 01:
That is a defining moment in this case, right?

[00:27:03] Speaker 03:
The defining moment, Your Honor, in this case

[00:27:06] Speaker 03:
I'm not sure there is one in particular, the fact that Mr. Arianas applied for retirement disability benefits and was granted a retirement disability.

[00:27:16] Speaker 01:
At the same time, he's waiting for the government to give him the relief of reinstatement and the back pay that he was entitled to.

[00:27:31] Speaker 01:
And he never did get that, because according to the standard form, to the standard form 50, he was no longer retired, or he was now disabled.

[00:27:44] Speaker 01:
He's on the disability program.

[00:27:46] Speaker 03:
You know, I would not say that the SF 50 is the dispositive paper on that point.

[00:27:52] Speaker 01:
I mean, it's undisputed.

[00:27:53] Speaker 01:
That changes his legal rights.

[00:27:55] Speaker 03:
It's undisputed in this case.

[00:27:56] Speaker 03:
Did you say that?

[00:27:58] Speaker 01:
that at that point, Mr. Arianez's legal rights were changed.

[00:28:05] Speaker 03:
At the point that Mr. Arianez went on disability retirement, it was a more difficult road to hoe.

[00:28:12] Speaker 01:
When this forum was entered into his record, his legal rights changed.

[00:28:18] Speaker 01:
Because he was no longer going to get his statement.

[00:28:23] Speaker 01:
He was not going to get back pay.

[00:28:25] Speaker 03:
He was no longer able at that point to provide useful and efficient... He had no input on the form.

[00:28:32] Speaker 01:
Wouldn't you say that his legal rights changed at that point?

[00:28:36] Speaker 03:
His legal rights changed when he went on disability retirement, Your Honor, and that he could no longer perform by statute, 5 U.S.C.

[00:28:43] Speaker 03:
8451.

[00:28:44] Speaker 00:
You're saying the S.F.

[00:28:46] Speaker 00:
50 simply reflected earlier developed facts.

[00:28:52] Speaker 03:
BSF 50 did reflect earlier developed facts that, as I mentioned, Your Honor, and speaking with Judge Raina before, were based in large part on inputs from Mr. Arianes himself.

[00:29:05] Speaker 03:
Again, no sandbagging has occurred.

[00:29:07] Speaker 03:
Mr. Arianes had a hand in the ultimate determination that OPM made.

[00:29:13] Speaker 03:
in submitting certified statements on the disability application, submitting statements consistent in August 2014 from his doctor of his inability to work.

[00:29:23] Speaker 03:
And those statements go so far as to say, additionally, that any further treatment is unlikely to provide any significant benefit, an appendix 532.

[00:29:35] Speaker 00:
And getting back to the burden of proof that was discussed earlier, who has the burden of proof to show willingness, ability, that is already willing and able?

[00:29:49] Speaker 03:
Your Honor, the burden of proof question here is who has the ability to prove compliance with the Board's decision

[00:29:55] Speaker 03:
Undisputedly, by regulation, the agency has that burden.

[00:29:59] Speaker 03:
The agency pursuant to the burden-shifting framework this Court has approved in cases like ISIL, EIS, ELE.

[00:30:06] Speaker 03:
The agency must first put forth some form of concrete positive evidence as to

[00:30:12] Speaker 03:
the petitioner's inability to work.

[00:30:17] Speaker 03:
The agency did that here, namely in putting forth the Disability Retirement Annuity Grant by OPM pursuant to statute that found him unable to render useful and efficient service at 5 USC 8451.

[00:30:34] Speaker 03:
The responsive burden then shifted to Mr. Arianas to come forth with evidence undermining that concrete evidence that the agency had put forth.

[00:30:45] Speaker 03:
Despite contrary assertions by Mr. Arianas, there is nothing inconsistent with the agency having the burden to show compliance with the board's decision and still, Mr. Arianas having some form of responsive burden

[00:31:01] Speaker 03:
after the agency already put forth concrete evidence of an inability to work, that he could have actually, in a matter of fact, worked.

[00:31:10] Speaker 04:
What's your response to the argument that the board was required to consider whether Mr. Arianis would have applied for retirement even if he had not been terminated?

[00:31:21] Speaker 03:
That Mr. Arianis would have been required to apply for?

[00:31:23] Speaker 03:
Would have applied.

[00:31:25] Speaker 04:
The board was needing to consider whether he would have applied for retirement

[00:31:29] Speaker 04:
like the disability, even if not going to be terminated.

[00:31:35] Speaker 03:
Would we disagree with the notion that

[00:31:40] Speaker 03:
Mr. Ioannis argues that there is a requirement to look behind the application for disability retirement.

[00:31:47] Speaker 03:
There simply is no requirement in case law that the board look behind the disability retirement application, and more so the disability retirement finding by OPM, because that is the dispositive point when it comes to his ability to render useful and efficient service in his position.

[00:32:06] Speaker 03:
And just to put a point on that, Your Honor, it is simply antithetical to being able to work and to being ready, willing, and able to work when an employee has been found unable to render useful and efficient service and therefore entitled to disability retirement annuity payments.

[00:32:24] Speaker 03:
That's the main point we're making.

[00:32:25] Speaker 03:
But additionally, as I mentioned previous,

[00:32:29] Speaker 03:
The board's decision uses, considers, weighs OPM's finding of disability retirement annuities as a simple factor in everything considered before the board.

[00:32:42] Speaker 03:
We have, as we've spoken about today, the multiple doctor notes, the later declaration from Mr. Arianas, Mr. Arianas's initial statements in August 2014, establishing or certifying that he was in fact disabled.

[00:33:00] Speaker 00:
And is credibility involved in those evaluations?

[00:33:04] Speaker 03:
And surely credibility is involved in those evaluations, Your Honor, and the board, in weighing all of the evidence before it, at appendix 11 through 13, made credibility findings that the court generally does defer to.

[00:33:17] Speaker 03:
Granted, those credibility findings here are not demeanor-based.

[00:33:21] Speaker 03:
Where in the record is that?

[00:33:23] Speaker 03:
Appendix 11 through 13 is where the board goes through methodically all of the various pieces of evidence it had before it about Mr. Ariyannis' willingness, readiness, and ability to work.

[00:33:38] Speaker 01:
What is it about credibility that they found?

[00:33:41] Speaker 01:
He's been untruthful or?

[00:33:42] Speaker 03:
Well, in weighing, for example, Mr. Arianas' statements in the July 2017 declaration, the board finds that lacking credibility because it's inconsistent with other evidence in the record that the board finds to be more credible.

[00:33:58] Speaker 03:
such as the contemporaneous August 2014 statements about his condition when he applied for disability benefits.

[00:34:05] Speaker 03:
Additionally, it's not outweighed by any other evidence that the board finds to be credible.

[00:34:11] Speaker 03:
The doctor's notes, as I mentioned in speaking with Judge Cunningham previous, the board weighs methodically all of those and simply finds at no point do they actually establish that Mr. Arianas was ready, willing, and able to work.

[00:34:27] Speaker 03:
But at the point at the end of the day, putting aside credibility, which I understand normally is demeanor-based, and this is a record, this is a paper record that we have here, but the court also, as well established, does not reweigh the evidence.

[00:34:41] Speaker 03:
And the board quite clearly, at Appendix 11 through 13, weighed the evidence and did so methodically and thoroughly.

[00:34:50] Speaker 03:
And those findings supported by substantial evidence should not be disturbed.

[00:34:54] Speaker 00:
Thank you, Council.

[00:34:55] Speaker 00:
You've gone well over, but we've lost your questions because an individual's rights are at stake.

[00:35:02] Speaker 00:
Thank you, Your Honor.

[00:35:03] Speaker 00:
Mr. Day, you can have the full rebuttal time you requested.

[00:35:19] Speaker 02:
Thank you, Your Honors.

[00:35:19] Speaker 02:
I'd just like to make three points on rebuttal here.

[00:35:22] Speaker 02:
The first is that Mr. Byrd mentioned the substantial evidence standard repeatedly during his argument, but that's not the standard that applies here.

[00:35:30] Speaker 02:
The board committed two legal errors, so the question is instead whether this court can affirm based on the undisputed evidence in the record or remand is necessary.

[00:35:39] Speaker 02:
The first legal error is that the board should have looked behind whether he would have retired absent the unlawful employment action.

[00:35:46] Speaker 02:
As I mentioned in response to Judge Cunningham's question in the opening argument, there's case law to that effect.

[00:35:51] Speaker 02:
Wicker versus Hopper and Martin versus the Department of the Air Force both support that conclusion based on general remedial principles.

[00:35:59] Speaker 02:
Mr. Bird referenced no case that pointed the other direction, no holding that they could not look behind the distinction in this case.

[00:36:07] Speaker 00:
How does one determine whether if different facts had occurred, he would have made different decisions?

[00:36:18] Speaker 02:
So one would determine that by making the normal factual findings that one would do.

[00:36:22] Speaker 02:
In any case, the board could do here.

[00:36:24] Speaker 02:
It's just on this record.

[00:36:25] Speaker 02:
It shows that Mr. Aragonis never would have retired absent the unlawful termination.

[00:36:29] Speaker 02:
So a remand would not be necessary in this case.

[00:36:32] Speaker 02:
It could be necessary in other cases where the facts are disputed and don't establish it definitively.

[00:36:38] Speaker 01:
But the government answered that question, right?

[00:36:41] Speaker 02:
Answered which question?

[00:36:42] Speaker 01:
The question you just raised, whether he would have retired.

[00:36:46] Speaker 02:
No, I don't think it did.

[00:36:48] Speaker 02:
It suggested that he was disabled as a general matter.

[00:36:52] Speaker 02:
But that's not whether he would have applied for the retirement.

[00:36:54] Speaker 02:
It doesn't address the fact that his request for accommodation was cut off by his unlawful termination.

[00:37:00] Speaker 02:
So I don't think it gets at the crux of the issue of whether he would have applied for retirement absent the unlawful employment action.

[00:37:07] Speaker 02:
And I think turning to the second error, the board improperly placed the burden on Mr. Arianes.

[00:37:12] Speaker 02:
And Mr. Byrd referenced the ISIL case as support for the fact of this concrete burden shifting point.

[00:37:18] Speaker 02:
That is a non-precedential case of this court.

[00:37:20] Speaker 02:
It does not have presidential effect, and it did not engage with the question of whether the interaction between the regulation and what the burden of proof ought to be here.

[00:37:32] Speaker 02:
Below, the board relied on Poconi.

[00:37:35] Speaker 02:
That was a case from the court of claims that predated both the board and the regulation at issue, so it doesn't govern here.

[00:37:41] Speaker 02:
Instead, there's a legal error based on the clear regulatory text in placing the burden on Mr. Ariyannis.

[00:37:46] Speaker 02:
In correcting for that, there's no evidence moving forward.

[00:37:49] Speaker 00:
Mr. Ariyannis is getting disability pay right now, correct?

[00:37:53] Speaker 00:
That's correct.

[00:37:53] Speaker 00:
If we affirm, does that continue?

[00:37:56] Speaker 02:
No, his disability payments would be reclaimed from OPM, and he would be reinstated to his position.

[00:38:03] Speaker 02:
And based on the reinstatement... Well, no, I said if we affirm the board's decision... Oh, sorry, I misheard you.

[00:38:10] Speaker 02:
If the decision is affirmed entirely, yes, Mr. Arians would continue to receive retirement.

[00:38:15] Speaker 02:
Apologies for misunderstanding.

[00:38:17] Speaker 02:
And I think another point about Mr. Bird's argument is that he was consistently blending the facts between reinstatement and back pay here.

[00:38:24] Speaker 02:
The regulations set up that Mr. Arianez could be reinstated without the full period of back pay or without back pay at all.

[00:38:30] Speaker 02:
The ready, willing, able question, first on back pay, not on reinstatement.

[00:38:34] Speaker 02:
And he focused on appendix pages 11 through 13, which were credibility findings primarily about the 2017 note.

[00:38:40] Speaker 02:
He did not address appendix pages 14 and 15, which were about the 2016 note.

[00:38:45] Speaker 02:
which were the focus of our reversal argument that there's no evidence moving forward on that issue.

[00:38:50] Speaker 02:
And so a reversal would be appropriate after correcting for the legal error.

[00:38:54] Speaker 02:
And the last point that I wanted to make on rebuttal is in response to Judge Raina's question about what the defining moment in this case was.

[00:39:01] Speaker 02:
The defining moment in this case was when Mr. Arianez was terminated for blowing the whistle on government waste.

[00:39:07] Speaker 02:
And then he retired in an effort to preserve a semblance of an income while challenging that removal, eventually winning that removal appeal before the MSPB.

[00:39:17] Speaker 02:
And that retirement was a function of that.

[00:39:18] Speaker 02:
He was always ready, willing, able to work with competition.

[00:39:22] Speaker 01:
He never was reinstated, and he never did get any back papers suing to the whistleblower finding, right?

[00:39:30] Speaker 01:
That's exactly right.

[00:39:33] Speaker 02:
Yes, that's exactly right.

[00:39:35] Speaker 02:
There was just a mere shuffling of paperwork around replacing his termination for whistleblowing with a retirement on disability that itself was infected by the underlying whistleblowing conduct and he never received a dollar of back pay.

[00:39:48] Speaker 04:
And Jess, you don't have to give me an actual figure, but I assume that getting back pay would lead to him getting more money than what he's currently receiving in terms of the disability pay?

[00:39:59] Speaker 02:
Yeah, that's right.

[00:40:00] Speaker 02:
So the way disability pay is calculated for the first year, you get 60% of your high three average.

[00:40:05] Speaker 02:
The second year, you get 40%.

[00:40:07] Speaker 02:
And then it goes down once you reach 62 to the standard basic annuity payment calculation.

[00:40:13] Speaker 02:
So his full pay would be greater than his retirement.

[00:40:16] Speaker 02:
But it would be deducted.

[00:40:17] Speaker 02:
His retirement based on regulations would be deducted.

[00:40:21] Speaker 00:
Thank you.

[00:40:21] Speaker 00:
Thank you, counsel.

[00:40:22] Speaker 00:
The case is submitted.

[00:40:24] Speaker 00:
That concludes today's arguments.