[00:00:00] Speaker 04:
are your cases this morning?

[00:00:02] Speaker 04:
The first one is number 231552, Biswas versus DVA.

[00:00:08] Speaker 04:
Mr. Duranis.

[00:00:12] Speaker 02:
Go ahead.

[00:00:12] Speaker 03:
Good morning.

[00:00:14] Speaker 03:
I'm in the court.

[00:00:14] Speaker 03:
My name is Sterling Duranis.

[00:00:16] Speaker 03:
I'm the counsel for the appellant petitioner in this matter, Dr. Nina Biswas.

[00:00:21] Speaker 03:
This case involves her termination in violation of the Whistleblower Effective Act from the Department of Veterans Affairs.

[00:00:29] Speaker 03:
We respectfully argue that this matter should be reversed and that the board should be remanded back to the board for determination of a hearing on damages

[00:00:37] Speaker 03:
Specifically, this case involves application of the car factors, the well-known car factors, which I'm sure you're aware of, particularly car factor three, and failure of the agency to provide a comparator, and more specifically, the administrative judge holding that it was our failure

[00:00:54] Speaker 03:
not to have a comparator, respectfully reverses the issue and puts the burden of proof on the appellate.

[00:01:02] Speaker 03:
And that, respectfully, we argue, is reversible error.

[00:01:06] Speaker 03:
And this court should reverse it as a result of that error.

[00:01:10] Speaker 03:
Paul?

[00:01:10] Speaker 04:
You argue that the board's decision is inconsistent with Huffman in so far as it... You argue... Is the sound system not working?

[00:01:21] Speaker 04:
No, it's working.

[00:01:22] Speaker 04:
You argue that

[00:01:24] Speaker 04:
The board's decision is contrary to Huffman.

[00:01:28] Speaker 04:
The decision in Huffman?

[00:01:29] Speaker 03:
In Whitmore?

[00:01:31] Speaker 03:
No, Huffman also.

[00:01:33] Speaker 03:
Did I say Huffman?

[00:01:34] Speaker 03:
I'm sorry.

[00:01:35] Speaker 03:
I don't recall Huffman.

[00:01:37] Speaker 03:
I recall Greenspan primarily, Smith versus GSA, and the Silo versus EPA.

[00:01:45] Speaker 04:
I'm sorry, but in so far.

[00:01:47] Speaker 04:
as you're arguing that the board sustained the discipline because it was appropriate to rely on the fact that she went outside of the chain of command.

[00:01:59] Speaker 04:
Oh, right.

[00:02:00] Speaker 04:
Right?

[00:02:01] Speaker 03:
Right.

[00:02:01] Speaker 04:
So that would seem perhaps to be problematic to discipline someone because of whistleblowing outside the chain of command.

[00:02:12] Speaker 04:
That's what I'm talking about.

[00:02:13] Speaker 03:
Right.

[00:02:14] Speaker 03:
That is problematic.

[00:02:15] Speaker 03:
You're right.

[00:02:15] Speaker 03:
They should not do that.

[00:02:16] Speaker 03:
You're right.

[00:02:17] Speaker 03:
Exactly.

[00:02:17] Speaker 04:
What role did that particular aspect play in the discipline?

[00:02:26] Speaker 04:
As I read the testimony of the deciding official, it seemed to play a significant role in the discipline.

[00:02:36] Speaker 03:
That's right.

[00:02:37] Speaker 03:
The fact that she had sent an email to, ultimately, the secretary himself, Secretary Shinseki at the time, played a big role in their decision to terminate her.

[00:02:47] Speaker 03:
But that email was, again, about her complaint.

[00:02:50] Speaker 03:
And again, those emails, respectfully, we argue, are protected activity.

[00:02:56] Speaker 03:
She had sent them to a variety of individuals up and down the chain of command to the director of the entire medical center, the Dallas VA Medical Center.

[00:03:05] Speaker 03:
And she had sent those emails up there.

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And they were frightened.

[00:03:08] Speaker 03:
I understand that.

[00:03:09] Speaker 03:
But she has that right respectfully to make that objection.

[00:03:12] Speaker 03:
And the fact that she sent this to the secretary does not make it an automatically termable offense.

[00:03:18] Speaker 03:
And in fact, at the hearing, it was explicitly testified that the secretary did not direct that she be disciplined for that.

[00:03:25] Speaker 03:
He only asked that her concerns be addressed.

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And they replied that they had been addressed.

[00:03:30] Speaker 03:
That's a separate issue, obviously, when I hear about the murder.

[00:03:32] Speaker 01:
It might be wrong.

[00:03:34] Speaker 01:
It might be contrary to law to find Dr. Bistrasz as being insubordinate for going outside the chain of command with any protected disclosure.

[00:03:44] Speaker 01:
But I don't think that would absolve her of an aggressive, wrongful, inappropriate manner of making those kinds of communications.

[00:03:54] Speaker 03:
But respectfully, this court in the Greenspan case explicitly had that issue addressed that issue very well as well.

[00:04:00] Speaker 03:
And it did point out that, yes, whenever you're making those complaints, it's going to be upsetting.

[00:04:08] Speaker 03:
It's going to be important.

[00:04:10] Speaker 01:
But Greenspan said wrongful disruptive conduct

[00:04:14] Speaker 01:
is not shielded by

[00:04:29] Speaker 01:
hiring practice or something like that.

[00:04:32] Speaker 01:
And then the manner, character, and nature of how that communication is undertaken by the whistleblower, the would-be whistleblower.

[00:04:40] Speaker 01:
And if it's truly inflammatory, inappropriate, unprofessional, then those sorts of things can be taken into account when evaluating

[00:04:49] Speaker 01:
the retaliation question.

[00:04:51] Speaker 03:
But again, her statements were that the hiring of Dr. Oyula as a non-citizen was simply illegal.

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And I don't think that that's necessarily still highly inflammatory.

[00:05:01] Speaker 03:
She didn't use curse words or anything of that nature.

[00:05:05] Speaker 01:
I mean, if we went through the list, there's a lot of

[00:05:10] Speaker 01:
Items that the AJ here, the board, looked at and saw that was highly problematic in terms of her behavior and her manner of communicating.

[00:05:24] Speaker 01:
She was accusing anyone that was responsible for hiring the non-citizen doctors to be betraying the United States government.

[00:05:34] Speaker 01:
She called her direct line supervisor a total failure in how he ran the operations.

[00:05:39] Speaker 01:
He called the way he did schedules stupid.

[00:05:44] Speaker 01:
You know, she threatened to refuse to see patients.

[00:05:48] Speaker 01:
She threatened to take unscheduled leave.

[00:05:52] Speaker 01:
I mean, there's a lot of different items here.

[00:05:55] Speaker 01:
I haven't gotten through all of them that the board went through.

[00:05:58] Speaker 01:
And then when I look at page 821 of the board's final analysis,

[00:06:05] Speaker 01:
He was looking at all of this and saying, this is highly inappropriate, disruptive, creating a hostile work environment, unprofessional and improper acts.

[00:06:15] Speaker 01:
And that analysis at the end of the opinion isn't talking about the emails to General Shiseki and isn't focusing on

[00:06:26] Speaker 01:
the alleged insubordination for going outside the chain of command.

[00:06:30] Speaker 01:
And under circumstances like this, what I'm wondering is if the harmless error principle applies here, that even if there's a, I understand, let me finish.

[00:06:43] Speaker 01:
Even if we take away the insubordination for making a communication outside the chain of command finding, there's still other forms of insubordination.

[00:06:55] Speaker 01:
For example, the instructions to stop sending inflammatory, unprofessional emails, distributing them widely, and all this other conduct that could all by itself be rolled up and say, even if there is a legal error as to one piece of all of this record, there's still more, more than enough for satisfying Carbacter 1 that there is very strong evidence

[00:07:25] Speaker 01:
to support the action that the AJA took care of.

[00:07:29] Speaker 01:
Now, go ahead and respond.

[00:07:30] Speaker 03:
No, I understand your point, Your Honor.

[00:07:32] Speaker 03:
It's a good point.

[00:07:33] Speaker 03:
I'm not here to totally defend everything she's done.

[00:07:35] Speaker 03:
She may have been inappropriate in some respects.

[00:07:37] Speaker 03:
But I do respectfully that the agency has not yet demonstrated exactly why those are specifically termable offenses.

[00:07:43] Speaker 03:
As I argued previously in my brief, it's not enough to simply list a terrible bunch of bad ads.

[00:07:48] Speaker 01:
Do you think there's substantial evidence in the record to support the AJA's findings that

[00:07:53] Speaker 01:
No other doctor came and testified to such an event.

[00:08:04] Speaker 01:
Well, we have something on record that's not live testimony, at least statements or declarations from people like Dr. Kutha and at least one other doctor that said this was extremely offensive, what she was communicating widely about them and this kind of nationalistic rhetoric that she's distributing against them that made it not only offensive, but created a hostile work environment.

[00:08:31] Speaker 01:
And that was the kind of

[00:08:33] Speaker 01:
evidence that the AJ relied on to say this was a hostile work environment.

[00:08:39] Speaker 03:
Respectfully her complaints about war specifically with respect to Dr. Gupta was at the time he was a foreign national and she was arguing that the agency was not a properly

[00:08:52] Speaker 03:
complying with the law to hire first and foremost only qualified, if they were qualified U.S.

[00:08:57] Speaker 03:
citizens and then only secondarily to come in there.

[00:09:01] Speaker 03:
If Dr. Gupta may have found that offensive, respectfully, that's not relevant.

[00:09:06] Speaker 02:
Why isn't it relevant?

[00:09:09] Speaker 02:
I mean, she's allowed to make protective disclosures and can't be punished for them.

[00:09:13] Speaker 02:
But she's not allowed to make them in unprofessional, threatening, or hostile ways, right?

[00:09:18] Speaker 02:
You would agree with that, wouldn't you?

[00:09:20] Speaker 03:
Certainly, but I don't think she made it in a threatening way.

[00:09:22] Speaker 02:
I don't see any threats.

[00:09:23] Speaker 02:
But that's a factual finding that the board made, and we're reviewing that for substantial evidence.

[00:09:28] Speaker 02:
You're not going to do any good here, re-arguing evidence on that.

[00:09:31] Speaker 00:
No, I'm not going to.

[00:09:32] Speaker 02:
There's a whole list of things, as Judge Chen correctly pointed out, pages 21 through 23 of the board's

[00:09:41] Speaker 02:
decision listing all of these things that the agency found unprofessional, and hostile, and demeaning, and the like.

[00:09:49] Speaker 02:
And that's evidence we have to support that funding.

[00:09:52] Speaker 02:
Why isn't that the end of the game on this point?

[00:09:56] Speaker 03:
Because again, I don't think, for two factors, one, I don't think the agency produced anybody to show that it wasn't specifically a terminable effect.

[00:10:03] Speaker 03:
They just said that it was the conclusory statement that they were.

[00:10:05] Speaker 03:
They made these conclusory statements, respectfully.

[00:10:08] Speaker 02:
But the way to win, I'm a little confused about this.

[00:10:11] Speaker 02:
She doesn't have civil service protections to the extent that they have to have a cause for her termination, right?

[00:10:18] Speaker 02:
She was a temporary appointment.

[00:10:20] Speaker 02:
So she can be, you know, you're making a lot of faces at the podium.

[00:10:24] Speaker 02:
It's really inappropriate.

[00:10:26] Speaker 02:
I apologize.

[00:10:28] Speaker 02:
She can be terminated for no reason whatsoever if she doesn't have civil service protections.

[00:10:35] Speaker 02:
You brought a whistleblower claim.

[00:10:37] Speaker 02:
So then they have to go through all this

[00:10:40] Speaker 02:
reasons of why they would have taken the action, which is ending her temporary appointment.

[00:10:48] Speaker 02:
But it doesn't convert it into some kind of for-cost standard.

[00:10:53] Speaker 02:
It just means they would have ended her temporary appointment without the disclosures.

[00:11:00] Speaker 02:
And so I don't understand why you keep saying this wasn't a determinable offense.

[00:11:05] Speaker 02:
This is not the world we're operating in in a temporary appointment in an IRA appeal.

[00:11:11] Speaker 02:
So whether they have to show that this was good enough reason to terminate her appointment during her term appointment, not whether that would have a rise to a level of a terminal offense under the regular Title V Chapter 75 procedures.

[00:11:31] Speaker 03:
Well, as a VA physician, she's not under Title V. Right, right.

[00:11:34] Speaker 02:
But you know what I mean.

[00:11:36] Speaker 02:
It's the same thing.

[00:11:37] Speaker 02:
I mean, very similar to the same thing.

[00:11:39] Speaker 03:
But at the time of her protective disclosure, remember, she had been initially converted to a permanent employee.

[00:11:45] Speaker 02:
Well, that's a different issue.

[00:11:47] Speaker 02:
The agency explained why that was a mistake, and they converted her back.

[00:11:50] Speaker 02:
And if you want to challenge that, you can.

[00:11:52] Speaker 02:
But I don't see any evidence.

[00:11:55] Speaker 02:
kind of light of day on that because I think the agency didn't just convert her back, it also converted some other people back that it improperly converted to a permanent thing.

[00:12:08] Speaker 02:
So I don't think you can single out the agency's actions on that.

[00:12:11] Speaker 03:
Well, I understand.

[00:12:13] Speaker 03:
But all of those other doctors were converted back and given professional standards boards.

[00:12:17] Speaker 02:
And again, the appellants, they were converted back to, after they were improperly converted to a permanent appointment without a board, they were converted back to a temporary appointment and then converted back to permanent.

[00:12:28] Speaker 04:
The issue is not whether the conversion was improper, because that was based, as I read it, solely on the fact that the giving her the permanent status in the first place was illegal.

[00:12:41] Speaker 04:
So we're talking not about that aspect of the case, but about the termination.

[00:12:46] Speaker 04:
She can't be terminated for engaging in protected whistle blowing.

[00:12:50] Speaker 04:
And it is true that there are a variety of reasons that were given here, but it does seem as though a central reason was the going outside of chain of command.

[00:13:04] Speaker 04:
And so it's hard to separate that from the overall result.

[00:13:09] Speaker 04:
given the way the board approached this, sustaining the chain of command ground.

[00:13:18] Speaker 03:
You are correct, Your Honor.

[00:13:20] Speaker 03:
It is difficult to do that, but I think respectfully that we do argue that, again, the agency still has not demonstrated precisely why she has done that.

[00:13:32] Speaker 03:
just because she went outside the chain of command.

[00:13:35] Speaker 03:
Again, you're right.

[00:13:36] Speaker 03:
That is the holding in Huffman as I made it in there.

[00:13:40] Speaker 03:
And the administrative judge specifically found that these protective disclosures were made outside the chain of command and that they were, quote, disruptive to the work environment.

[00:13:49] Speaker 03:
I don't think respectfully, though, that there's any substantial evidence that it was destructive to the work environment.

[00:13:54] Speaker 03:
She's a doctor.

[00:13:55] Speaker 03:
She performed all of her doctors' duties.

[00:13:56] Speaker 04:
Well, I'm not sure that's the issue.

[00:13:57] Speaker 04:
I mean, there may be substantial evidence that would support a removal, but if the ground

[00:14:02] Speaker 04:
is based on improper theory, even if there was substantial evidence to support it under some other theory.

[00:14:10] Speaker 04:
I'm not sure that we can sustain what happened here.

[00:14:14] Speaker 04:
But maybe you want to save the rest of your time for rebuttal.

[00:14:17] Speaker 03:
Well, I understand.

[00:14:18] Speaker 03:
And I do want to save some time for rebuttal.

[00:14:19] Speaker 03:
But I do want to emphasize once again that the administrative judge explicitly did put third-car factor burden on us.

[00:14:28] Speaker 03:
And that reverses the basic standard of proof.

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And at a minimum, it should be remanded.

[00:14:32] Speaker 03:
for that reconsideration, if not totally reversed.

[00:14:37] Speaker 03:
Again, the third car factor is still on the agency's burden, not the appellant.

[00:14:42] Speaker 03:
On the last page of his decision, on Appendix page 24, he found that since we did not produce a similar situation with employees who was not a whistleblower or were treated more favorably, that was one of his key factors.

[00:14:53] Speaker 03:
And that, respectfully, is wrong.

[00:14:56] Speaker 03:
And at a bare minimum, the least for a man, if not totally reverse it, for that determination.

[00:15:02] Speaker 03:
I don't think, again, respectfully, that this court should ever simply accept the litany of bad acts without the evidence that it was actually a term, all of these were terminable offenses, or together they were terminable offenses.

[00:15:16] Speaker 03:
I have to use my time up, so.

[00:15:17] Speaker 04:
I will give you two minutes to remodel.

[00:15:19] Speaker 03:
Oh, I think I've done that, so.

[00:15:22] Speaker 03:
But I've got five minutes for a remodel, right?

[00:15:25] Speaker 02:
No, you used all your remodel time.

[00:15:27] Speaker 02:
He said he would give you two minutes back.

[00:15:31] Speaker 03:
Oh, I'm sorry.

[00:15:32] Speaker 03:
I think that you should sit down.

[00:15:35] Speaker 03:
I should sit down?

[00:15:36] Speaker 03:
Okay.

[00:15:36] Speaker 04:
Ms.

[00:15:37] Speaker 04:
Westerkamp?

[00:15:48] Speaker 00:
Good morning and may it please the court.

[00:15:51] Speaker 04:
I think just to briefly address... You got a problem here because it is correct.

[00:15:57] Speaker 04:
that you can't terminate somebody, even a probationary employee, for engaging in protected whistleblowing.

[00:16:05] Speaker 04:
And protected whistleblowing includes going outside the chain of command, correct?

[00:16:10] Speaker 04:
Yes, it does.

[00:16:11] Speaker 04:
OK, so to the extent that the deciding official here was relying on the fact that she went outside the chain of command, that's not a valid ground for termination, right?

[00:16:21] Speaker 00:
But I disagree, Your Honor.

[00:16:22] Speaker 00:
No, no, answer the question.

[00:16:24] Speaker 00:
To answer your question, no, you cannot.

[00:16:28] Speaker 00:
If a whistleblower goes outside the chain of command, that should not be a grounds for a basis for termination.

[00:16:32] Speaker 04:
And the deciding official and the board relied on that in part, right?

[00:16:37] Speaker 00:
I would say in part, yes.

[00:16:40] Speaker 04:
Okay, so the suggestion is that maybe that error was harmless because there was other evidence to support it, which there appears to be, but the problem is

[00:16:51] Speaker 04:
the chain of command ground seems to be somewhat central here.

[00:16:56] Speaker 04:
If you look at page 240 of the appendix on page 577, you see that the deciding official is relying heavily on the fact that she went to Shinseki outside the chain of command.

[00:17:13] Speaker 00:
Well, but I would argue that

[00:17:16] Speaker 00:
All of the emails that Dr. Biswas sent and copied Secretary Shinseki on, that all happened after the confrontation in July 2012 with Dr. Oyula, where it was unprecedented where Dr. Holt, who was the acting chief of staff of a 4,400-member hospital at the Dallas VA, had to intervene and order Dr. Biswas to

[00:17:38] Speaker 00:
do her patient rotation that day, and also Dr. Goodman.

[00:17:43] Speaker 04:
I'm not understanding what your point is.

[00:17:45] Speaker 04:
I mean, there surely is evidence here which would support a termination, evidence which is unrelated to protected whistle blowing.

[00:17:53] Speaker 04:
But the question is, since there is reliance here on protected whistle blowing and discharging her, whether that infects the decision so that we have to send it back.

[00:18:04] Speaker 00:
And I don't think it does affect the decision, Your Honor, where I would point to the Greenspan case, where that did say that wrongful or disruptive conduct is not shielded by the presence of a protective disclosure, as well as the Kahlil case, and that's 479 F3 821, where it again

[00:18:20] Speaker 00:
The character of the disclosure itself can provide clear and convincing evidence that the agency met its burden.

[00:18:27] Speaker 00:
And finally, Pediolos, which is 479F appendix 341, where that was the same kind of thing, where the employee sent rude and disrespectful emails.

[00:18:37] Speaker 04:
OK, but were the emails that went to Shinseki rude and disrespectful?

[00:18:41] Speaker 04:
Maybe you can show us which ones.

[00:18:43] Speaker 04:
I've read those emails.

[00:18:46] Speaker 04:
It seems to me that many of them are not disrespectful.

[00:18:49] Speaker 00:
So yes, they were, Your Honor, where, for example, on page, the appendix at 627, the subject is poor staffing, horrible leadership.

[00:19:03] Speaker 00:
And this is an email from Dr. Goswas directly to Dr. Gutenberger, who was the hospitalist chief.

[00:19:11] Speaker 00:
And she copies Secretary Shinseki on this.

[00:19:17] Speaker 00:
For example, and it's the third full paragraph down, she says, Dr. Oyula has played a nice game, and it looks like he is your boss at this time in getting what he wants.

[00:19:27] Speaker 00:
You were totally manipulated and played to his whims.

[00:19:30] Speaker 00:
And it's totally obvious to all in the group that he has failed as a leader a long time ago, continues to jeopardize the hospitalist program.

[00:19:37] Speaker 00:
And then that was not the only email that Secretary Shinseki was copying on further in

[00:19:46] Speaker 00:
This is at the appendix, page 1247.

[00:19:49] Speaker 00:
And this is, again, she'd been instructed or, I guess, counseled to go through Dr. Gutenberger.

[00:19:59] Speaker 00:
And if she's got complaints about the federal hiring practices, then she should also go to the OIG.

[00:20:06] Speaker 00:
But she, again, emailed Secretary Shinseki on that date

[00:20:11] Speaker 00:
and was again complaining about the hiring of Dr. Oula, where she said we have lost, and this is on page 1248, where we have lost a lot of good citizen physicians due to dirty politics and open workplace violations.

[00:20:26] Speaker 00:
And again, this was something where further down, she acknowledges receipt of the memo that was distributed to all staff on December 11, 2011, about the grievance process.

[00:20:39] Speaker 00:
And this was something where her emails were rude and inflammatory, and I would point to that.

[00:20:46] Speaker 02:
Do you think that the administrative judge relied on this simple going outside of the chain of command to find the clear and convincing evidence, or that he just acknowledged that that existed, which is what made the case out for

[00:21:02] Speaker 02:
the nexus between her disclosure and the conduct with the date.

[00:21:06] Speaker 02:
He relied on other, the inflammatory nature of the emails and the disruptive conduct as the clear and convincing evidence.

[00:21:14] Speaker 00:
I think it's the latter, Your Honor.

[00:21:15] Speaker 00:
And the board.

[00:21:16] Speaker 02:
What's your best point in the decision for that?

[00:21:19] Speaker 00:
Well, so on pages 14 through 24 is the board's decision where he did go through the various misconduct by Dr. Biswas.

[00:21:26] Speaker 00:
And with the

[00:21:31] Speaker 00:
And when it came to looking at exactly what the board had said, this was at the appendix pages 19 through 20 of the board's decision, where the agency clearly, quote, clearly and convincingly showed that Ms.

[00:21:49] Speaker 00:
Bizz-Walsh's appointment was terminated due to her disruptive and insubordinate conduct and not due to her whistle-blowing, and that also

[00:21:57] Speaker 00:
on pages 21 through 22, where, quote, the board found that the agency convincingly showed that Dr. Fiswas was engaged in other unprofessional and improper acts following her non-selection for the hospital as section chief physician with the various emails she sent.

[00:22:14] Speaker 04:
Well, but the problem is that the administrative judge is relying heavily on going outside of the chain of command as itself an independent and appropriate theory for her termination.

[00:22:26] Speaker 00:
But I think, Your Honor, just as Judge Hughes has pointed out, at the time, Dr. Fosloss was a temporary employee.

[00:22:34] Speaker 00:
And so her termination letter is a page 60.

[00:22:36] Speaker 04:
What does that have to do with it?

[00:22:38] Speaker 00:
Well, so what it has to do with it is because she didn't have, I guess, the so-called vested MSPB rights, there didn't have to be a full explanation.

[00:22:45] Speaker 04:
I don't understand what you're saying.

[00:22:47] Speaker 04:
The question we're dealing with is whether they relied, the HA relied on her going outside the chain of command.

[00:22:54] Speaker 04:
quite apart from the tenor of some of the emails that she might have sent.

[00:22:59] Speaker 00:
But I think, and the passages I quoted from earlier, I think that this is something where some of the emails just happened to be copying Secretary Shinseki, but a lot of the inflammatory emails did not.

[00:23:11] Speaker 04:
So for example, even the Dr. Gupta emails where... But what we're asking you is to look at the AJ's decision.

[00:23:18] Speaker 04:
and see what grounds were articulated there for sustaining the discipline.

[00:23:25] Speaker 04:
And the way I read it, she repeatedly relies on going outside of the chain of command separate from the inflammatory nature of some of the emails.

[00:23:39] Speaker 00:
And that may be true, but that also does not undermine the fact that there was other misconduct over the course of several months.

[00:23:48] Speaker 00:
Basically, as soon as she was not selected for Dr. Oula's position from May through roughly September, she was just kind of waging a campaign against her non-selection.

[00:23:59] Speaker 01:
I guess the question that the court is struggling with is,

[00:24:05] Speaker 01:
I'm trying to understand this board decision.

[00:24:08] Speaker 01:
Some of it looks compelling, but at least one piece of the reasoning looks legally wrong.

[00:24:16] Speaker 01:
And now we have to figure out what was really the focus of the board's reasoning and whether the finding that it was insubordinate to email outside the chain of command to General Shinseki a protected disclosure, a cornerstone of the board's reasoning.

[00:24:35] Speaker 01:
And then after we figure that out, we have to ask ourselves, how does the harmless error principle work in the context of this case?

[00:24:46] Speaker 01:
What is the lens we have to look through to try to figure out once we take away what we think is inappropriate reasoning, whether the remaining legitimate reasoning is good enough to give us

[00:25:04] Speaker 01:
sufficient confidence under the law that whatever error that happened is actually just harmless in this context.

[00:25:12] Speaker 00:
Well, I would say in response to that, Your Honor, that the board found credible Dr. Gutenberger's testimony that he only considered the thought of removal only crossed his mind after that July 2012 confrontation that Dr. Goswami had with Dr. Aguilar, and that any of her emails after that was Shinseki came after that.

[00:25:31] Speaker 01:
How about, I'm sorry, maybe, let me try again.

[00:25:35] Speaker 01:
What is your understanding of the rule for harmless error?

[00:25:39] Speaker 01:
What is the legal framework we apply to trying to figure out here whether the reasoning that the emails to Shinseki were in subordination?

[00:25:53] Speaker 01:
And we have to take that away.

[00:25:54] Speaker 00:
Well, with harmless error, just essentially that it

[00:25:59] Speaker 00:
would not affect, I guess, the decision, and that there could be other grounds for it, or that even so, that even with that error, it does not affect the ultimate decision.

[00:26:10] Speaker 00:
And here, I do agree that the board did point out that some of the emails were copied or sent directly to Secretary Shinseki, except at the same time, most of the emails were not, with Secretary Shinseki copied, and it was to

[00:26:28] Speaker 00:
all of the hospitalists that were working there.

[00:26:30] Speaker 00:
It was everybody in HR.

[00:26:32] Speaker 00:
She was sending her complaints just, I guess, pail mail and just the whole kitchen sink to everybody.

[00:26:38] Speaker 00:
And so while I acknowledge that there were some Secretary Shinseki emails and that the board did say that

[00:26:43] Speaker 00:
insubordination outside the chain of command.

[00:26:46] Speaker 00:
I don't know if it was the testimony of Dr. Holtz and Dr. Gutenberger, which again this court can't reweigh the board's consideration of that, but that their testimony was that she was creating a disruptive and hostile work environment.

[00:27:01] Speaker 04:
Yeah, but there's also testimony if you look at page 240 of the appendix where he supervising official seems to say

[00:27:09] Speaker 04:
that it was the sending of the latest salvo to Shinseki that made it time for her to go, even at the cost of hardship.

[00:27:20] Speaker 04:
So this is at 577 at the top.

[00:27:25] Speaker 04:
So I mean, it seems to have played.

[00:27:27] Speaker 04:
This is not something peripheral.

[00:27:29] Speaker 04:
It seems to have been a central aspect of the decision to terminate her.

[00:27:35] Speaker 04:
It may be that there are other

[00:27:37] Speaker 04:
grounds that would support a remand that would support affirming the discipline.

[00:27:43] Speaker 04:
But if the decision of the HA rests on an improper ground, there has to be some determination of whether the other proper grounds were sufficient in and of themselves for the termination.

[00:28:00] Speaker 00:
Well, and I would point the court, not the board, to Appendix 653, where this is an email from Dr. Goodenberger to HR personnel, where it's the subject's outline for inclusion and letter of termination.

[00:28:16] Speaker 00:
And of that, there are four points.

[00:28:20] Speaker 00:
And the top one is insubordination for failure to follow chain of command.

[00:28:24] Speaker 00:
But then the other three are insubordination, so to cease

[00:28:28] Speaker 00:
inflammatory emails about colleagues, insubordination, refusing patient assignments, and hostile work environment.

[00:28:35] Speaker 00:
And so I think you have testimony from Dr. Holt and Dr. Goodenberger, and this is back when they believed she was a permanent employee, and they had to follow a different process.

[00:28:45] Speaker 00:
And so I think although the board may have put several times in its opinion that insubordination for outside chain of command, even the agency, back when it believed she was permanent,

[00:28:56] Speaker 00:
had in subordination for outside chain of command is just one small element.

[00:29:00] Speaker 04:
One small element?

[00:29:03] Speaker 04:
How do we know it's small?

[00:29:05] Speaker 04:
I don't see the record supports the notion that it's small.

[00:29:08] Speaker 00:
Well, but I guess in the sense that if there's four points for her removal, it's one of four.

[00:29:14] Speaker 04:
And again... How did we get where we are now?

[00:29:18] Speaker 04:
I mean, was the VA arguing to the board that going outside of the chain of command was improper and could support discipline?

[00:29:26] Speaker 04:
Because if that's what the VA argued, that's just wrong.

[00:29:30] Speaker 04:
It shouldn't be arguing.

[00:29:31] Speaker 00:
I think it was part of the fact that she had been counseled to follow the proper process.

[00:29:37] Speaker 04:
There's no proper process.

[00:29:39] Speaker 04:
The heart of the Whistleblower Protection Act is to protect people who go outside the chain of command.

[00:29:45] Speaker 04:
It's designed to encourage that and protect it.

[00:29:48] Speaker 04:
So that can't be a ground for firing somebody.

[00:29:52] Speaker 00:
And again, that's where the case law is on our side with Khalil, for example, Greenspan, and Petialos, where even if you're going outside the chain of command, it's the content of the emails that matter, too.

[00:30:02] Speaker 00:
And in this case, even the quotes that I mentioned earlier with the Secretary Shinseki emails were pretty defamatory, where if you're accusing your supervisor, Dr. Goodenberger, of lining his pockets or

[00:30:15] Speaker 00:
just improper conduct, that goes to, she can't just say that because I can report this to anybody, the entire content of my emails are protected.

[00:30:27] Speaker 00:
And that's what those cases say.

[00:30:29] Speaker 00:
And so I think that considering all of that, and with her other misconduct that was escalating, frankly, that the- I don't think anybody's suggesting that there wasn't sufficient evidence to sustain the termination here.

[00:30:42] Speaker 04:
The question is whether it also rested

[00:30:45] Speaker 04:
significantly on improper considerations.

[00:30:50] Speaker 00:
And with that being the chain of command and I would submit that although that may have been a part of the board's decision,

[00:30:57] Speaker 00:
that wasn't the central holding.

[00:30:59] Speaker 00:
And if, for example, the board had said, the agency showed me by clearing convincing evidence that she should be removed because she emailed Secretary Shinseki, we would have a problem.

[00:31:10] Speaker 00:
But that's not what the board said.

[00:31:11] Speaker 00:
That was just a part of the board's explanation of the various disruptive behaviors Dr. Biswas committed over the course of several months.

[00:31:19] Speaker 01:
So is the framework, let's take away the Shinseki emails from the case entirely, and then the

[00:31:26] Speaker 01:
question that's left is, does substantial evidence nevertheless support the ruling?

[00:31:33] Speaker 00:
For this court, the review is substantial evidence.

[00:31:35] Speaker 01:
But in terms of harmless error, I keep asking about what is the way to analyze harmless error.

[00:31:42] Speaker 01:
And so let me just put it to you.

[00:31:44] Speaker 01:
Is it where we take away the Shinseki emails from the basket of things the board considered and then ask ourselves, is there still substantial evidence?

[00:31:56] Speaker 01:
Or maybe it's slightly different that would the AJ have reached the same outcome?

[00:32:03] Speaker 00:
I mean, I think it's the former, where if you excise out any of the change of command analysis, is there still enough in there with substantial evidence to support the board's decision?

[00:32:14] Speaker 04:
No, that can't be right.

[00:32:14] Speaker 01:
That's not.

[00:32:15] Speaker 01:
I mean, it seems like it's a two-part thing.

[00:32:19] Speaker 01:
At least initially, we have to ask ourselves, would the AJ have done the exact same thing?

[00:32:26] Speaker 01:
And then second, do we think substantial evidence supports that same thing under the circumstances?

[00:32:33] Speaker 01:
Then we return to our traditional analysis of substantial evidence.

[00:32:38] Speaker 01:
It seems like there's a threshold question first in terms of harmless error.

[00:32:43] Speaker 00:
And I think that very well could be the case.

[00:32:47] Speaker 00:
And at least on this record, at least, there is substantial testimony that the board had considered and that was outside of the chain of command question.

[00:32:56] Speaker 00:
as well as plenty of documents for the court to also look at what the board had considered.

[00:33:00] Speaker 00:
And I know I'm out of time, but if there are any further questions.

[00:33:04] Speaker 04:
I think we're done.

[00:33:05] Speaker 04:
Thank you.

[00:33:06] Speaker 00:
Thank you.

[00:33:07] Speaker 04:
Mr. Duranus, I gave you two minutes.

[00:33:14] Speaker 03:
Thank you, Your Honor.

[00:33:16] Speaker 03:
I think you raised a very good point, Judge Chen, as to the standard of harmless error and why it becomes a harmless error.

[00:33:23] Speaker 03:
I don't know exactly how the administrative judge would rule.

[00:33:26] Speaker 03:
I don't know if I can answer that respectfully or anybody can.

[00:33:30] Speaker 03:
I think that's why it probably should be remanded back to the administrative judge at a bare minimum for determination to use the proper factors.

[00:33:36] Speaker 03:
And as well, as I argued previously, not to use the car factor as a sword against the appellant, but it's only a shield for the appellant.

[00:33:45] Speaker 03:
That is, when he specifically found on Appendix Page 24 that we had not provided the proper comparator

[00:33:52] Speaker 03:
that's respectfully not the standard for the third car factor, whether the agency hit.

[00:33:58] Speaker 03:
Ultimately, as I've said many times.

[00:34:00] Speaker 02:
The Honda agency said there aren't any proper comparators because her conduct is different than everybody else.

[00:34:06] Speaker 02:
So what's wrong with that?

[00:34:08] Speaker 03:
Well, that's right.

[00:34:09] Speaker 03:
And this court has ruled in the Whitmore case that I've cited in the Air Department of Labor case that you don't have to provide comparative necessarily, but they do so at their caution.

[00:34:19] Speaker 03:
And if there is not a proper comparator, then that factor has to be neutral.

[00:34:24] Speaker 03:
That is, it can't be used against the appellant.

[00:34:27] Speaker 03:
It must be a neutral factor.

[00:34:28] Speaker 03:
In this case, the administrative judges explicitly stated that we didn't provide a comparator.

[00:34:34] Speaker 03:
And that, respectfully, is error.

[00:34:36] Speaker 03:
But I think you've got two major errors here, respectfully.

[00:34:38] Speaker 03:
And that's where I think you go beyond that it's just simply it isn't harmless error.

[00:34:43] Speaker 03:
It must be at least remanded for that determination on that factors.

[00:34:49] Speaker 04:
OK.

[00:34:49] Speaker 04:
Anything else?

[00:34:51] Speaker 03:
No.

[00:34:51] Speaker 03:
I guess I'm done.

[00:34:52] Speaker 03:
26 seconds are up.

[00:34:53] Speaker 03:
Thank you, Your Honors.

[00:34:54] Speaker 03:
I appreciate it.

[00:34:55] Speaker 04:
OK.

[00:34:55] Speaker 04:
Thank you.

[00:34:56] Speaker 04:
Thank both counsel.

[00:34:57] Speaker 04:
The case is submitted.