[00:00:00] Speaker 01:
We have one argued case this morning.

[00:00:02] Speaker 01:
It's number 222192, Coppola versus Department of Veterans Affairs.

[00:00:08] Speaker 01:
And we have Mr. Coppola arguing by video.

[00:00:11] Speaker 01:
You may proceed.

[00:00:13] Speaker 03:
Good morning.

[00:00:14] Speaker 03:
May it please the court, Ralph Coppola, representing Dr. Ralph Coppola.

[00:00:19] Speaker 03:
The court committed reversible error because it did not consider all of the evidence under the CAR factors.

[00:00:28] Speaker 03:
Namely, it did not consider the performance reviews out of Dr. Capola, including the 2011 performance review that he provided world-class service to the veterans and was an excellent provider.

[00:00:43] Speaker 03:
And then strangely, a week after he was terminated by the VA, there was another performance review that found him to be satisfactory.

[00:00:52] Speaker 03:
The AJA did not consider either of these performance reviews.

[00:00:57] Speaker 03:
The AJ also failed to consider under the car factors that Dr. Kapola had successfully completed his focused professional practice examination review, his PIP.

[00:01:16] Speaker 03:
On those basis, the court should reverse and remand the case to the AJ.

[00:01:26] Speaker 01:
You argue extensively in your reply brief about the March 2012 evaluation, but I don't think you argue that much in the opening brief.

[00:01:42] Speaker 01:
I could only find a single sentence in the opening brief about that.

[00:01:46] Speaker 01:
Is that correct?

[00:01:48] Speaker 03:
That's correct.

[00:01:49] Speaker 03:
On page four, I put it in the FAFs.

[00:01:53] Speaker 03:
There was a rebuttal to

[00:01:54] Speaker 03:
the argument by the VA that the VA had successfully completed the car factors.

[00:02:03] Speaker 01:
Well then, why shouldn't we find there's a forfeiture of the argument about the March evaluation?

[00:02:11] Speaker 03:
There is no need to find a forfeiture of the argument because it was in my rebuttal and the VA did raise the issue.

[00:02:18] Speaker 01:
But you have to make arguments in your opening brief to preserve them.

[00:02:24] Speaker 03:
That's the problem.

[00:02:30] Speaker 02:
Likewise, did you raise this specific issue in front of the board?

[00:02:40] Speaker 02:
You know, I looked at the board's opinion and it looks like a very thorough

[00:02:45] Speaker 02:
opinion considering a lot of different issues and I didn't see this particular progress evaluation report being evaluated against the strength of the evidence of all of the different issues regarding unprofessionalism or failure to follow orders and so that makes me wonder did you sir raise this progress evaluation in the context of

[00:03:15] Speaker 02:
why you believe that the evidence against Dr. Coppola, in fact, wasn't so strong.

[00:03:22] Speaker 03:
I think, Your Honor, in fact, there was an issue because there were two different versions of the report.

[00:03:29] Speaker 03:
The VA had a version that did not include the final recommendation that Dr. Coppola had successfully completed the PIP.

[00:03:41] Speaker 02:
I guess, sir, the concern I have is that I cannot tell, looking through the joint appendix, whether you, in fact, raised this progress evaluation in the way that you're now raising it in your gray brief.

[00:03:57] Speaker 03:
Yes, I did, Your Honor.

[00:03:59] Speaker 02:
OK, so then in your view, the board must have overlooked this argument?

[00:04:03] Speaker 02:
Is that your... The board did overlook this argument, Your Honor, yes.

[00:04:08] Speaker 02:
OK.

[00:04:10] Speaker 02:
But again, getting back to Judge Dyck's point, I didn't see you making that kind of legal error argument in your blue brief, in your opening brief to us.

[00:04:20] Speaker 02:
Is that fair to say?

[00:04:21] Speaker 03:
No, it would be fair to say, I believe that I raised it on page four in the facts.

[00:04:27] Speaker 02:
OK.

[00:04:30] Speaker 01:
Well, I mean, to give you credit for it, I do think there's a single sentence on page 25 of the opening brief that mentions it also.

[00:04:39] Speaker 03:
Thank you, Your Honor.

[00:04:42] Speaker 03:
The VA had a burden of evidence to show that it would not have otherwise terminated Dr. Kapola.

[00:04:51] Speaker 03:
What is interesting in this case is that the Douglas Factor checklist was done in April.

[00:04:58] Speaker 03:
The decision to terminate him was reportedly made in May, but the VA did not, quote unquote, pull the trigger until September, and it did not pull the trigger

[00:05:11] Speaker 03:
until Dr. Capola had appeared for his second protected whistle-blowing on TV along with Dr. Mahavita.

[00:05:22] Speaker 03:
And Dr. Mahavita was also terminated.

[00:05:26] Speaker 03:
So the argument is that they would not have terminated him at all.

[00:05:29] Speaker 03:
They had decided to not terminate him because he was such a valuable provider.

[00:05:34] Speaker 03:
And the only reason they terminate him was that he appeared on TV with Dr. Mahavita

[00:05:41] Speaker 03:
which embarrassed the VA.

[00:05:44] Speaker 03:
And it's also inherently improbable that Dr. Ross, as his supervisor, did not know of the VA investigation because the VA investigation was an on-campus investigation.

[00:05:58] Speaker 03:
It was public.

[00:06:00] Speaker 03:
It consisted of two different visits over a course of two different weeks.

[00:06:06] Speaker 03:
And the testimony of Dr. Ross was that she provided a

[00:06:10] Speaker 03:
new kind of oversight that she was very active.

[00:06:14] Speaker 03:
The investigation considered three different deficits in her department.

[00:06:21] Speaker 03:
So it is inherently improbable that she did not know that when she was preparing the decision to terminate Dr. Capola.

[00:06:31] Speaker 01:
Well, there are two incidents, and perhaps more, that happened after this March 16th evaluation.

[00:06:39] Speaker 01:
There was the Horan

[00:06:41] Speaker 01:
complaint and then the failure to move appropriately to cancel these patient appointments, correct?

[00:06:50] Speaker 01:
And both of those were relied on in connection with the termination.

[00:06:56] Speaker 03:
And the AG's finding in both of those was incorrect in that with regard to Horan, he refused to corroborate what Dr. Rossin had put in her paperwork under his testimony at court.

[00:07:10] Speaker 03:
And then with regard to the clinic cancellation, the AJ found that Dr. Coppola had canceled a clinic that, in fact, was actually canceled by Dr. Brilliant, according to the evidence in the appendix.

[00:07:25] Speaker 01:
Say that last thing again.

[00:07:27] Speaker 01:
I didn't understand what you said.

[00:07:28] Speaker 03:
Oh, I apologize.

[00:07:30] Speaker 03:
According to the evidence in the appendix, the clinic cancellation that the AJ is referring to is actually a cancellation

[00:07:39] Speaker 03:
of the cancer clinic by Dr. Brilliant, not by Dr. Coppola.

[00:07:44] Speaker 01:
There were 23 appointments that were canceled without following appropriate procedures.

[00:07:49] Speaker 01:
That was the finding by the AJ, right?

[00:07:53] Speaker 03:
That was an incorrect finding because that refers to the cancer clinic cancellation that was actually canceled by Dr. Brilliant.

[00:08:01] Speaker 03:
It was not canceled by Dr. Coppola.

[00:08:06] Speaker 01:
Are you saying there's no testimony that 23 appointments were canceled improperly?

[00:08:14] Speaker 03:
The testimony by Dr. Ross was incorrect.

[00:08:19] Speaker 01:
Well, that's not our job.

[00:08:22] Speaker 01:
To determine whether it was incorrect, if there's substantial evidence supporting the findings, we have to approve them.

[00:08:29] Speaker 03:
Well, even if there were two incidences after the successful completion of the PIP,

[00:08:37] Speaker 03:
The fact remains that the VA did not terminate Dr. Coppola for four and a half months until he appeared on TV.

[00:08:46] Speaker 03:
So we can reasonably conclude that they had determined to not terminate Dr. Coppola.

[00:08:52] Speaker 03:
And if he had not appeared on TV, he would not have been terminated.

[00:08:56] Speaker 03:
And the sole reason for his termination was his appearance on TV.

[00:09:01] Speaker 03:
Because nothing had happened after those two incidences, which were before

[00:09:06] Speaker 03:
is termination, termination in May of 2012.

[00:09:13] Speaker 03:
Nothing happened.

[00:09:14] Speaker 02:
Your deduction for why Dr. Coppola was eventually terminated, which factor of the car factors should we be thinking about your deduction through?

[00:09:30] Speaker 02:
Is it car factor one?

[00:09:32] Speaker 02:
Strength of the evidence?

[00:09:34] Speaker 02:
I mean.

[00:09:34] Speaker 03:
Well, under this car factor one strength of the evidence, I noticed the issue that Dr. Kupola could not have been terminated because he was a permanent employee and the VA did not follow procedure.

[00:09:48] Speaker 03:
And under five.

[00:09:50] Speaker 02:
But this is a whistleblower case.

[00:09:52] Speaker 02:
And so we're not trying to figure out the correctness or incorrectness of the process of the termination.

[00:09:59] Speaker 02:
We're trying to figure out.

[00:10:00] Speaker 02:
the strength of the evidence under Car Factor 1 of whether the agency would have chosen to terminate the appellant anyway.

[00:10:13] Speaker 03:
Yes, but it's not in a permanent defense.

[00:10:18] Speaker 03:
Rather, I believe that under Car Factor 1, the VA has to show in its burden that it could have terminated Dr. Kupola.

[00:10:27] Speaker 03:
And since it did not

[00:10:29] Speaker 03:
part of the procedures, it did not have terminated, Dr. Campola.

[00:10:33] Speaker 03:
Also, in the car factor three in the Whitmore, the VA presented no evidence of similarly situated physicians that were terminated, and so car factor three disappears.

[00:10:48] Speaker 03:
Meaning just car factor one and car factor two.

[00:10:53] Speaker 01:
You're into your rebuttal time.

[00:10:55] Speaker 01:
Do you want to save the rest of it?

[00:10:57] Speaker 03:
I shall save the rest of it.

[00:10:58] Speaker 03:
Thank you, Your Honor.

[00:11:00] Speaker 00:
as well may it please the court

[00:11:17] Speaker 00:
I'll start, if I may, where Mr. Coppola did in discussing the performance issue.

[00:11:25] Speaker 00:
First of all, a specific focus on the FPPE is waived.

[00:11:30] Speaker 00:
It wasn't addressed in detail in the opening brief.

[00:11:33] Speaker 00:
But the administrative judge, the MSPB, did address this issue, and it found that the reason

[00:11:39] Speaker 01:
I'm not sure about that.

[00:11:41] Speaker 01:
Where did the AHA address this issue?

[00:11:44] Speaker 01:
You're using the term issue very broadly, I think.

[00:11:47] Speaker 00:
Well, what I'm trying to say is the past can reasonably be discerned.

[00:11:51] Speaker 00:
And the reason for that is that the MSPB explained that Dr. Rossin acted independently.

[00:12:00] Speaker 00:
and as the primary decision maker on both of the person elections.

[00:12:05] Speaker 01:
Let's talk specifically about the March 16, 2012 evaluation.

[00:12:10] Speaker 01:
And the evaluation does seem potentially inconsistent with attributing significance to the prior patient complaints and other issues that happened before the March 16th date.

[00:12:26] Speaker 01:
And while it's true that

[00:12:28] Speaker 01:
other things reflecting adversely on the petitioner occurred after March 16th, the termination relied on pre-March 16th events also.

[00:12:46] Speaker 01:
So what are we to make of this?

[00:12:49] Speaker 01:
It seems extremely odd to find that in March 16th the problems have been solved and then later on

[00:12:57] Speaker 01:
for the agency to be relying on those same events to terminate.

[00:13:01] Speaker 01:
What's the answer to that?

[00:13:03] Speaker 01:
This is not something that I saw addressed by the A.J.

[00:13:07] Speaker 00:
Well, to take the issues in reverse, I think what the MSPB said about this is at A33, where the board said, Dr. Rosson explained that her main concern was the interpersonal issues.

[00:13:22] Speaker 00:
And then we look to the FPPE, this is confirmation of competency, so this is focusing on

[00:13:28] Speaker 00:
For example, at A1011, 1011, focusing on pathology reports, treatment of positive margins, so the biopsy issue.

[00:13:40] Speaker 00:
So this is a question focusing on competency of practice.

[00:13:45] Speaker 00:
So the focus professional practice evaluation.

[00:13:48] Speaker 00:
This is focusing on competency of practice, and one of the triggering

[00:13:53] Speaker 00:
issues was internal review of positive margins of the biopsies.

[00:13:57] Speaker 01:
I'm confused.

[00:13:58] Speaker 01:
On 1010, we find discussion of plaintiff complaints as leading to this performance improvement plan, right?

[00:14:19] Speaker 00:
So at page 1010, yes, it lists patient complaint, singular, but then when we look to the next page and it's discussing how it was that they assessed competency here, it's looking at reviewed 20 medical records and looking at clinic notes to see did he adequately address the biopsy results?

[00:14:41] Speaker 00:
Were the patient margins

[00:14:44] Speaker 00:
on the biopsies being adequately reviewed and that's addressing internal review of the positive margins.

[00:14:50] Speaker 00:
So I think this is completely consistent with the MSTB's findings that the reason for removing Dr. Coppola was not that he wasn't doing adequate biopsy reviews or he wasn't

[00:15:09] Speaker 00:
skilled enough to understand when a biopsy was done.

[00:15:18] Speaker 00:
Under the FPPE?

[00:15:21] Speaker 01:
The termination, yes.

[00:15:25] Speaker 00:
But the FPPE is focused on the biopsy review of records,

[00:15:30] Speaker 00:
the pathology results, whereas at A33, for example, the MSPB found that Dr. Rosson's motivating concern with the removal was the disrespectful interactions with patients and with staff.

[00:15:49] Speaker 04:
What is the impact of his status as an at-will employee on this at all, or even on any of the car factors?

[00:16:02] Speaker 00:
It's a fact that the MSPB considered, but the MSPB found as a matter of fact that Dr. Coppola was an at-will employee and that even if he was not, it did not affect the car factors because the evidence was so strong that it didn't reflect a retaliatory motive.

[00:16:23] Speaker 00:
So the car factors, the question really is

[00:16:26] Speaker 00:
is there an independent line of causation separate from the protected disclosures, separate from the whistle-blowing conduct that supports what the agency did.

[00:16:35] Speaker 00:
And so when you're looking at that, so under CAR Factor 1, you're looking at that evidence.

[00:16:39] Speaker 00:
Here, the evidence is strong that there was an independent line of causation.

[00:16:43] Speaker 00:
Dr. Rosson was the primary and initiating person for both personnel actions.

[00:16:47] Speaker 00:
She did not know about the protected disclosures when she took those actions.

[00:16:52] Speaker 00:
That's at A14.

[00:16:53] Speaker 00:
and she had a strong basis, the MSPB found, for her concerns with Dr. Coppola's disrespectful conduct and failure to follow policy and that she was entitled to remove him as an at-will employee.

[00:17:07] Speaker 01:
But the problem is that in terms of the strength of the negative information about Dr. Coppola, I think the argument is that the agency found that

[00:17:22] Speaker 01:
to be significant when it terminated him, but didn't find it significant in March.

[00:17:31] Speaker 01:
That's the argument, as I understand it.

[00:17:33] Speaker 01:
And that sort of cast doubt on the credibility of the assigned reasons for the termination.

[00:17:41] Speaker 00:
So just to understand the question, are you asking whether the FPPE reflects that the agency didn't think it had at-will ability to remove it?

[00:17:51] Speaker 01:
No, no, no.

[00:17:52] Speaker 01:
The problem is that the evaluation where the check provider met all criteria of fully successful FPPE-noting competence, that that appears to be inconsistent with treating the earlier instance as disqualified.

[00:18:12] Speaker 00:
Yeah, so I think the difference here is the difference between medical confidence to, for example, identify a cancer result from a biopsy versus the conduct concerns about being disrespectful to patients, leaving one patient feeling like a beaten child or the disrespectful conduct to lower level staff yelling at the transcription clerk or

[00:18:39] Speaker 00:
engaging in demeaning behavior with others, and the failure to follow policies, even when told repeatedly, not canceling clinics in ways that negatively impacted patient care, the nurse practitioner signing informed consents, not following the policy on informed consents, and really reflecting no concern when told that this is a violation of policy.

[00:19:04] Speaker 00:
are different I think than the medical competence that's being addressed here.

[00:19:09] Speaker 01:
I just have a hard time reading it that way because the box that's checked on 1010 says complaint of complaint.

[00:19:22] Speaker 01:
You want to read that as being referring to a single complaint, but I don't think that that's necessarily correct.

[00:19:30] Speaker 01:
And that is the reason for the initiation of this FPPE, plaintiff complaint.

[00:19:42] Speaker 00:
Yeah, but then when you look at the competency, the way that competency is assessed, it's really not addressing that.

[00:19:51] Speaker 00:
So I think that based on that, a reasonable person could still

[00:19:56] Speaker 00:
align with what the findings of the MSPB were, that the reason for removing him was this overall disrespectful conduct, because the very next page, when it's listing the different issues being addressed, pathology reports, each clinic note should contain a clear chief complaint assessment and plan.

[00:20:18] Speaker 04:
So these are- I'm sorry, which page are you looking at?

[00:20:21] Speaker 00:
It's 1011, JA 1011.

[00:20:23] Speaker 00:
So that's listing the analysis that's being

[00:20:27] Speaker 00:
performed to assess competency.

[00:20:29] Speaker 00:
So it's really not going to those broader issues that Dr. Rosson is addressing in her proposed removal and the broader concerns that motivated her removal, which is what the MSPB found.

[00:20:42] Speaker 02:
Were there additional things between the March progress report and then the May recommendation for removal?

[00:20:50] Speaker 02:
For example, I think Judge Dyck referred to the Horan complaint.

[00:20:56] Speaker 02:
There was also problems with the informed consent forms.

[00:21:03] Speaker 02:
And then also the clinic cancellation problem.

[00:21:09] Speaker 00:
Yes.

[00:21:10] Speaker 00:
There is, at pages 766 to 767, we have the summary of disciplinary issues with the dates.

[00:21:21] Speaker 00:
So there are a few issues.

[00:21:23] Speaker 00:
So failure to follow up with patient complaints

[00:21:26] Speaker 00:
and concerns despite notification from patient advocate and direct instruction.

[00:21:30] Speaker 00:
That's 411, 2012.

[00:21:31] Speaker 00:
So that's after the March date.

[00:21:35] Speaker 00:
Failure to follow policy of informed consent, that was 410, 2012.

[00:21:39] Speaker 00:
And there's a few other listed issues.

[00:21:44] Speaker 00:
Another episode of disrespectful conduct despite prior reprimand and disrespectful conduct, 411, 2012.

[00:21:51] Speaker 00:
That's relating to the, as your Honor noted, the TH incident.

[00:21:56] Speaker 00:
So there were issues following that.

[00:21:58] Speaker 00:
And I think that pages 54 to 55 of the MSPB's decision, I think, addressed the, as well as page 14 and 33, discussed the motivation and the motivating considerations of Dr. Rosson being a disrespectful conduct.

[00:22:17] Speaker 00:
And I think a reasonable person could read those two concerns to be separate from the FPPE.

[00:22:22] Speaker 01:
That may well be true, but the problem is a reasonable person didn't address them and say that despite the March evaluation, things happened later.

[00:22:34] Speaker 01:
I mean, the AJ just didn't get into that.

[00:22:36] Speaker 01:
Now, maybe the AJ didn't get into that because it wasn't argued by the AJ.

[00:22:41] Speaker 00:
I did go back and I was having the same question about some of the issues raised in the reply brief, whether they were presented to the AJ, and I did go back and read the closing statements, which are not in the appendix, and I don't recall the FPP issue being addressed separately.

[00:22:58] Speaker 00:
The point being raised was he had performance reviews that were satisfactory performance reviews, so that's inconsistent.

[00:23:06] Speaker 00:
That was raised, and that was addressed.

[00:23:08] Speaker 00:
The AJ said,

[00:23:09] Speaker 00:
Essentially, that supports the fact that Dr. Rossin wasn't acting with retaliatory motive here because she was acting in an even-handed way, saying that performance could be satisfactory, but identifying these concerns about conduct and disrespectful conduct that motivated the ultimate removal.

[00:23:28] Speaker 00:
I think that the AJ did address that, and I think that's at A33 or A41.

[00:23:37] Speaker 00:
where that distinction was being drawn and also in the section addressing motivation to retaliate, the MSPB went into detail about those different considerations and specifically finding that Dr. Rossin did not have motive to retaliate and identifying her performance evaluations as supporting that conclusion.

[00:24:02] Speaker 00:
So I think that's where the judge addressed it and the specific concern being raised here that somehow the FPPE made it unlawful or something like that to then act subsequently, that I don't recall being raised as a legal argument to the MSPB.

[00:24:16] Speaker 00:
So in addition to not being presented in the blue brief and being waived in this court, I don't believe it was exhausted in a clear way at all before the MSPB.

[00:24:25] Speaker 00:
The MSPB did address in detail, it's an almost 60 page analysis,

[00:24:30] Speaker 00:
addressing the hearing, addressing credibility, finding Dr. Rosson to be credible specifically, that she acted independently, that she had a strong basis for her concerns with Dr. Coppola's conduct.

[00:24:43] Speaker 00:
So take, this is a detailed opinion, and I don't see any place that a specific concern that somehow it was unlawful or legally improper to take this action when the FPPE had been completed.

[00:24:57] Speaker 00:
And I think logically reading

[00:24:59] Speaker 00:
the motivation to retaliate section of the MSPB's decision, that's all wrapped up.

[00:25:04] Speaker 00:
The fact that Dr. Rossin was even handed and said, yes, you are now identifying a chief complaint, you are correctly conducting the biopsies, so therefore I'm going to find that you are competent in the FPPE

[00:25:19] Speaker 00:
That, I think, goes to support a reasonable basis for the MSPB's finding there was no motive to retaliate for Dr. Rosson.

[00:25:28] Speaker 01:
What was the date of the TV appearance?

[00:25:31] Speaker 01:
Pardon?

[00:25:32] Speaker 01:
What was the date of the TV appearance?

[00:25:34] Speaker 00:
It was two days before the removal.

[00:25:36] Speaker 00:
I believe it was September 11th, and the removal was effectuated on September 13th.

[00:25:44] Speaker 00:
And again, overall, the MSPB found at page 54 that the initiating person and largely independently the actor was Dr. Rossin who did not know about the disclosures and she made those proposals and those decisions before any interview occurred and without knowledge of the October 2011 disclosure.

[00:26:13] Speaker 01:
Okay.

[00:26:13] Speaker 01:
Anything further?

[00:26:14] Speaker 00:
For those reasons, we respectfully request the court affirm the decision of the MSPB.

[00:26:25] Speaker 03:
It is entirely improbable that Dr. O'Rourke did not know.

[00:26:29] Speaker 03:
The court found that Laura Staff, the person in charge of the investigation, knew of both

[00:26:40] Speaker 03:
was subduing to the OMI and of the TV appearance.

[00:26:43] Speaker 03:
It also found that Dr. Brilliant and Dr. Svobomelt knew of it.

[00:26:49] Speaker 03:
The court also found that Dr. Watson paid particular attention to what was going on in the hospital.

[00:26:56] Speaker 03:
So if everybody knew that Dr. Watson, that's just inherently improbable.

[00:27:04] Speaker 03:
And that means that the investigation was a retaliatory

[00:27:07] Speaker 03:
investigation and should be disregarded.

[00:27:10] Speaker 03:
Also, the final performance review was two weeks after Dr. Coppola was terminated.

[00:27:19] Speaker 03:
And that performance review found is an admission against interest.

[00:27:23] Speaker 03:
It found that Dr. Coppola had done everything successfully and satisfactorily in the last year.

[00:27:30] Speaker 01:
Where do we find that?

[00:27:32] Speaker 01:
Which page of the appendix is that at?

[00:27:35] Speaker 03:
I'm not certain, Your Honor.

[00:27:36] Speaker 03:
I apologize.

[00:27:38] Speaker 03:
That would be the final performance review.

[00:27:48] Speaker 03:
And on that basis, the termination of the VA should be reversed.

[00:27:55] Speaker 01:
Okay.

[00:27:55] Speaker 01:
Thank you.

[00:27:55] Speaker 01:
Thank both councils.

[00:27:56] Speaker 01:
Thank you, Your Honor.

[00:27:58] Speaker 01:
The case is submitted.

[00:27:59] Speaker 01:
That concludes our session for this morning.