[00:00:00] Speaker 04:
Our first case, 2022-1473, Mr. Burns.

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

[00:00:07] Speaker 02:
Good morning.

[00:00:08] Speaker 02:
May it please the Court?

[00:00:10] Speaker 02:
In looking at this case, I want to just start with some context that I think defines how the case should be decided.

[00:00:19] Speaker 02:
As you can see from the record, Mr. Katz worked on what was called the cellulobductive tracking system, which is an electronic basically phone device that can gather information from a 300-yard radius, be remotely activated.

[00:00:34] Speaker 02:
He was approved to work on that by the head of the agency themselves, the DA administrator, due to medical conditions and because he found a secure facility at no cost at Fort Bragg.

[00:00:45] Speaker 02:
The agency itself, at the highest levels, agreed to transfer them there to work on that specific project as actually part of its underlying accommodation.

[00:00:54] Speaker 02:
That went fine.

[00:00:54] Speaker 04:
He hired Cherokee Nation, the largest ADA contractor in the country, and to- Counsel, why don't we really get to the facts relating to this case?

[00:01:07] Speaker 04:
He would have had these personnel actions even if he hadn't made these disclosures.

[00:01:13] Speaker 02:
No, we don't believe.

[00:01:14] Speaker 04:
That was a finding, right?

[00:01:17] Speaker 02:
That was a finding.

[00:01:17] Speaker 02:
But the finding wasn't supported by substantial evidence, or frankly, any evidence, because under the third car factor was never met.

[00:01:24] Speaker 02:
In fact, the second one wasn't met.

[00:01:26] Speaker 02:
The court found that he made protected disclosures that each of his personnel actions that he suffered was a result of essentially conducted by the supervisors who he made the disclosures to, and then decided that they would have done so anyhow based solely on their uncorroborated

[00:01:43] Speaker 02:
actually contested without documentary supported testimony that they simply would have done this anyway without a single comparator.

[00:01:52] Speaker 02:
In fact, not only were there no comparators, his actual supervisors, his former supervisor, then current supervisor, and even the decision maker who made the decision to transfer him, all testified that it had never happened like this before and that essentially this was a cause unique.

[00:02:10] Speaker 02:
And so the agency never met its comparators.

[00:02:12] Speaker 04:
Also, weren't the alleged personnel actions taken before the protected disclosures?

[00:02:20] Speaker 02:
No.

[00:02:21] Speaker 02:
As you look from the record, the reason I was talking about the CATS program, Mr. Katz's initial disclosures occurred in 2017 when Michael Delacorte transferred the program from a well-recognized 8A contractor to a company largely run by an interior designer whose husband and everyone else there was a DEA official who used to work with Mr. Delacorte

[00:02:42] Speaker 02:
who, in the record, made no ethics determination because he asked himself, there's anything wrong with that?

[00:02:48] Speaker 02:
And they said, no.

[00:02:49] Speaker 02:
The second part of the contract, where Mr. Katz complained that they had burdened the contract by having Edward Zane come in to work with it, who did not know, essentially, what he was doing, increased the cost of the contract.

[00:03:00] Speaker 02:
The fact of the protected disclosure occurred because

[00:03:05] Speaker 02:
The underlying contract was transferred at a $22 million cost, was transferred to a company that was largely DEA employees who used to work with the decision maker.

[00:03:16] Speaker 02:
And he reported that in 2017 to Andrew Large.

[00:03:21] Speaker 02:
Throughout the entire period, right up until April of 2019, he continued to make disclosures.

[00:03:26] Speaker 02:
The actual adverse actions against him didn't begin to occur until March.

[00:03:31] Speaker 02:
And that was after he and Thomas Cordenaro had not only gone to the OIG, they had gone to the FBI and said, there's something wrong with this contract.

[00:03:40] Speaker 02:
This overruns.

[00:03:41] Speaker 02:
And it's not making any sense.

[00:03:43] Speaker 02:
And this is not working.

[00:03:46] Speaker 02:
And so they made a protected disclosure of the most fundamental aspect of what a government official is supposed to do, which is to officially run a contract at the least taxpayer cost

[00:03:58] Speaker 02:
and with the most efficient personnel.

[00:04:00] Speaker 02:
And we know the entire contract was a scam, because they hired the same persons to work on it, then declared they were independent contractors.

[00:04:08] Speaker 02:
That was the underlying order.

[00:04:10] Speaker 03:
Would you agree that if the adverse actions taken against Mr. Katz occurred prior to his disclosures, that no comparator would be necessary?

[00:04:23] Speaker 02:
Well, I'm not sure, because that's a bit of a hypothetical, because

[00:04:27] Speaker 02:
Prior to his disclosure, he was an exemplary employee who always got awards from the highest levels of the agency.

[00:04:34] Speaker 02:
I mean, even the fabricated notion that the issue that came up.

[00:04:38] Speaker 03:
It seems to me that the record shows that the actions started snowballing before the disclosures came.

[00:04:45] Speaker 02:
No, the actions started snowballing after he went to Andy Large and raised issues about the award of Compass.

[00:04:53] Speaker 02:
And Large, to some extent, protected him from Delacorte for a period of time.

[00:04:58] Speaker 02:
And so when Large left, he was unprotected.

[00:05:01] Speaker 02:
But the disclosures about the Katz contract came earlier.

[00:05:05] Speaker 02:
They came to Andy Large, where my client said, no, this is not the way.

[00:05:11] Speaker 02:
This is cronyism.

[00:05:12] Speaker 02:
Then when Edward Zane was put on the contract, he actually complained not only to his managers,

[00:05:17] Speaker 02:
but to the company now running the contract.

[00:05:19] Speaker 02:
And that was in November of 2018.

[00:05:21] Speaker 03:
Just setting aside the facts in this case for just a moment.

[00:05:27] Speaker 03:
Sure.

[00:05:28] Speaker 03:
Just as a matter of law, you do agree with me, right, that if the adverse actions took place prior to the disclosures, then no comparator is necessary.

[00:05:38] Speaker 03:
You don't get to the comparator analysis.

[00:05:40] Speaker 02:
Well, I think that's even more fundamental.

[00:05:42] Speaker 02:
If the actions occurred before the protected disclosures, he's not a whistleblower.

[00:05:46] Speaker 02:
I mean, the fundamental aspect of whistleblowing is I make the disclosure.

[00:05:50] Speaker 03:
And there was a finding made by, in this case.

[00:05:55] Speaker 02:
Yes.

[00:05:56] Speaker 02:
Yes.

[00:05:57] Speaker 02:
And the problem, again, the problem with the findings of facts is they're not supported by substantial evidence.

[00:06:04] Speaker 02:
I want folks to understand, because I actually did the underlying hearing, every single thing Mr. Katz said was backed up by a document or another manager.

[00:06:14] Speaker 02:
Chip McBrayer was not some lowly employee.

[00:06:16] Speaker 02:
He was his manager.

[00:06:17] Speaker 02:
Andrew Large was his manager.

[00:06:21] Speaker 02:
Turandolo, who actually made the transfer decision, said, the only reason I made it, and as you pointed out, the cat's paw theory in Miller, the only reason I made it is because Delacorte and McGuire were in my office every day saying, you've got to transfer this guy.

[00:06:34] Speaker 02:
There is no showings of, quote, misconduct.

[00:06:37] Speaker 02:
There is no showing in the record, no evidence.

[00:06:38] Speaker 02:
Nobody from the Navy came in and said, this contract isn't being run well.

[00:06:42] Speaker 02:
Oh, this is a joke.

[00:06:44] Speaker 02:
There is nothing in the, there's no documentary or substantive evidence or no testimony other than McGuire and De La Corte that basically says we didn't do this.

[00:06:53] Speaker 02:
It's not weighed against anything.

[00:06:55] Speaker 02:
It's not, it's not, she doesn't address the contradictory testimony, which in a jury trial would actually get an instruction.

[00:07:01] Speaker 02:
She simply says, in essence, that all you have to do to defeat a whistleblower reprisal case is to have two people come in, the manager come in and say, I didn't do it.

[00:07:11] Speaker 02:
This is the situation you faced with Miller, almost identical, where the individual complained about the quality of the Kevlar and was transferred out and proved up.

[00:07:22] Speaker 02:
The AJs did the exact same thing.

[00:07:25] Speaker 02:
They relied on the testimony of a warden

[00:07:27] Speaker 02:
who had a self-interest and said, that was enough.

[00:07:30] Speaker 02:
And this court said, no, that is not enough.

[00:07:32] Speaker 02:
This court said in Whitmore that the MSPB should stop being a backup quarterback for the agencies and look at the actual evidence and not restrain the Whistleblower Protection Act.

[00:07:43] Speaker 02:
My concern, which goes just beyond the facts, is given the facts in this case and the amount of evidence that was produced

[00:07:50] Speaker 02:
How else could Mr. Katz have proven his case other than apparently somebody in the agency coming out and saying, I engaged in whistleblower reprisal?

[00:08:01] Speaker 02:
That is an impossible standard.

[00:08:02] Speaker 02:
That is why you have to have substantial evidence

[00:08:06] Speaker 02:
to support a clear and convincing evidence case.

[00:08:08] Speaker 02:
I know it gets a little convoluted, but the underlying thing is there has to be something.

[00:08:13] Speaker 02:
And the standard of review here is not Title VII.

[00:08:15] Speaker 02:
It's not some legitimate explanation.

[00:08:17] Speaker 02:
It has to be a contributing factor.

[00:08:19] Speaker 02:
And the court found it was a contributing factor.

[00:08:21] Speaker 02:
The AJA then started to weigh whether these people were really desiring or retaliating or not.

[00:08:26] Speaker 02:
Some had some, and some had more.

[00:08:28] Speaker 02:
But that's almost the case.

[00:08:29] Speaker 01:
The motivation to retaliate is a very frequent consideration in these cases and so on.

[00:08:36] Speaker 01:
The fact that that was a focus of the AJ's discussion shouldn't come as a surprise, right?

[00:08:44] Speaker 02:
She found it a low motivation to do it, on the part of McGuire, at least.

[00:08:50] Speaker 02:
McGuire and Delacorte, as well.

[00:08:52] Speaker 02:
Delacorte had a high reason to do it.

[00:08:55] Speaker 02:
And I'll tell you why.

[00:08:56] Speaker 02:
Because the entire transfer of the contract itself was highly questionable.

[00:09:02] Speaker 02:
The reason it was highly questionable is you hired the exact same people to work on it.

[00:09:06] Speaker 02:
So it wasn't being operated well.

[00:09:09] Speaker 02:
It was you were shuffling the chairs so you could give it to a guy named David Dongelli, who you used to work for, who worked for Compass, and Zoran Jankovic, who worked for Compass, and Barry Smallwood at Cloud Lake, who had been a senior supervisor in the DEA.

[00:09:23] Speaker 02:
So it was crony as in pure and simple.

[00:09:26] Speaker 02:
And we know that Delacorte's testimony can't be

[00:09:29] Speaker 02:
accepted because Delacorte actually said, when we pointed out that there is an ethics review panel in the DEA itself that you have to go through, his response was, I did it myself.

[00:09:42] Speaker 02:
That is the heart of this case, is that that is what Mr. Katz was complaining about, that this looked and smelled to the high heaven.

[00:09:49] Speaker 02:
And my problem with the judge's opinion is we have documentary evidence to support everything.

[00:09:55] Speaker 02:
We have evidence that they were in on the decisions ranging from everything from how much medical information, to the attempts to remove his accommodation, to the transfers, to the reassignment, to the reassignment, to not to North Carolina.

[00:10:10] Speaker 02:
That's the other thing.

[00:10:11] Speaker 02:
I think the agency's position would be stronger if they had simply reassigned my client to a position in North Carolina and said,

[00:10:19] Speaker 02:
You're not running the CATS program well.

[00:10:21] Speaker 02:
They did not do that.

[00:10:22] Speaker 02:
When they transferred the program to Washington, DC, it collapsed.

[00:10:26] Speaker 02:
It's gone.

[00:10:27] Speaker 02:
All that money's out the window.

[00:10:29] Speaker 02:
And Eric Katz was never asked once to come up and brief anyone at the agency.

[00:10:35] Speaker 02:
And again, the approval for this in the record didn't come from Michael Delacorte.

[00:10:41] Speaker 02:
It came from Robert Patterson when he was the head of the DEA.

[00:10:44] Speaker 02:
The technology was so useful.

[00:10:46] Speaker 02:
Because you could track people who were kidnapped.

[00:10:49] Speaker 04:
Counsel, you're arguing as if we were fact finders.

[00:10:53] Speaker 04:
And we're not.

[00:10:54] Speaker 04:
And the question is substantial evidence.

[00:10:57] Speaker 04:
You are into your rebuttal.

[00:10:58] Speaker 04:
You can continue, or you can save it.

[00:11:01] Speaker 02:
I'll save it, Your Honor.

[00:11:02] Speaker 04:
Thank you.

[00:11:18] Speaker 00:
Good morning, Your Honors.

[00:11:19] Speaker 00:
Elizabeth Speck for the United States.

[00:11:21] Speaker 00:
May it please the Court.

[00:11:21] Speaker 00:
We respectfully request that the Court affirm the Merit Systems Protection Board's decision.

[00:11:26] Speaker 00:
The Court has had some questions about timing.

[00:11:31] Speaker 00:
Here, although it's true, Mr. Katz began to raise concerns regarding the support, the award to cloud-like technology and the subcontract to Compass in August of 2017.

[00:11:46] Speaker 00:
The relevant decision-maker regarding most of the personnel actions that were found to be covered personnel actions

[00:11:52] Speaker 00:
was Mr. McGuire.

[00:11:55] Speaker 00:
Mr. McGuire did not find out about the protected disclosures until March 5, 2019.

[00:12:02] Speaker 00:
And as I believe Judge Raina had indicated, his concerns about the CATS program occurred much earlier than that.

[00:12:10] Speaker 00:
We see from the record that as of December 2018,

[00:12:13] Speaker 00:
Mr. McGuire learned from the Navy that they were calling the program big-top because it resembled the circus with cost overruns and throughout December 8 2018 through Anyway throughout that predating the disclosure his concerns he began to gather more information about the cats program and his concerns about the management program began to grow and

[00:12:36] Speaker 00:
Turning to the factor three, a focus of the appellant's argument was the fact that the court did not, or the court pardon me, the board did not properly, it didn't consider factor three.

[00:12:48] Speaker 00:
Factor three is of course

[00:12:50] Speaker 00:
the evidence of non whistleblowers who are similarly situated.

[00:12:55] Speaker 00:
And I think that the MSPB did a good job of going through that evidence, why she found that Mr. Katz at that time, which is of course pre-COVID, was relatively unique in that he was a remote employee.

[00:13:07] Speaker 00:
And then she said that that

[00:13:09] Speaker 00:
evidence, she found it essentially neutral and that it did not weigh in Mr. Katz's favor.

[00:13:14] Speaker 00:
So I don't think she gave the agency, it's a fair characterization of the record to say that she found that weighed in favor of the agency and said she similarly, she found that there was not, that this was a relatively unique situation and so she didn't, she again found it neutral and didn't find it to tip in the appellant's favor, which is how she phrased it in her decision.

[00:13:35] Speaker 00:
We believe, as we outlined in our brief, this case is well grounded in the record and well supported with... Yes, Your Honor.

[00:13:42] Speaker 03:
Just for a minute, let's step back to the time issue.

[00:13:46] Speaker 03:
Yes, Your Honor.

[00:13:47] Speaker 03:
The way I understand the record is that McGuire began to assess the CATS program around December 2018.

[00:13:58] Speaker 03:
Yes, Your Honor.

[00:14:01] Speaker 03:
The disclosures occurred on March 2019, about a year later.

[00:14:06] Speaker 00:
That's the date that he learned of the disclosure.

[00:14:09] Speaker 00:
So the initial disclosures occurred in August of 2017.

[00:14:13] Speaker 03:
But Mr. McGuire, as the MSP... The disclosures were made well in advance of the time that Mr. McGuire learned of them.

[00:14:20] Speaker 00:
Yes, again, Mr. McGuire was the individual.

[00:14:23] Speaker 00:
His supervisor was Mr. Delacorte, but Mr. McGuire did not learn about the protected disclosures until March of this.

[00:14:31] Speaker 03:
Here's my concern.

[00:14:32] Speaker 03:
We have an employee who is aware of events that are occurring around him.

[00:14:43] Speaker 03:
It makes a disclosure.

[00:14:46] Speaker 03:
The disclosure occurs.

[00:14:48] Speaker 03:
after Mr. McGuire had already began to move towards an adverse action, how long, with respect to timing, it just seems that Mr. Katz may have waited back until he saw what was happening around him.

[00:15:15] Speaker 03:
The movement of personnel, the contract being given to somebody else, all of these are mounting employee actions.

[00:15:27] Speaker 03:
And at some point, he makes a disclosure.

[00:15:34] Speaker 03:
How much, if any, weight should we give to the fact that McGuire

[00:15:44] Speaker 03:
did not, was not aware of the disclosures.

[00:15:52] Speaker 03:
I think it's a very good.

[00:15:55] Speaker 03:
McGuire inserted himself and started examining all aspects of the program, activities surrounding Mr. Katz, Mr. Katz's timekeeping, the matter.

[00:16:07] Speaker 03:
He was moving toward a pretty complete investigation, but yet he never learned of the disclosures.

[00:16:14] Speaker 03:
And there was a specific finding on that.

[00:16:17] Speaker 00:
Yes, Your Honor, that's it, page 41 of the joint appendix.

[00:16:20] Speaker 00:
And there's also testimony in the record that March 5th was the day that he found out at appendix pages 405, 2580, and 2598 through 2599.

[00:16:30] Speaker 00:
So again, the court's looking here at whether.

[00:16:33] Speaker 03:
Up to March 2019, is Mr. McGuire's concerns only that, just concerns?

[00:16:41] Speaker 00:
Mr. McGuire, not precisely sure I understand the question, Mr. McGuire did not learn of Mr. Katz's whistleblowing.

[00:16:48] Speaker 00:
He became a supervisor, as you indicated, Judge Raina, in December of 2018.

[00:16:53] Speaker 00:
Actually, he became the section chief at November 12, 2018.

[00:16:58] Speaker 00:
He began to investigate the Katz program in December of 2018.

[00:17:04] Speaker 00:
And his concerns, I mean, the court is looking at whether

[00:17:07] Speaker 03:
The agency took adverse... After the time that the disclosures were made, did Mr. McGuire have any concerns?

[00:17:17] Speaker 03:
Did he act out on those concerns?

[00:17:20] Speaker 00:
Mr. McGuire didn't know about the disclosures until May 5th, 2019.

[00:17:25] Speaker 00:
So Mr. McGuire was investigating the CATS program.

[00:17:30] Speaker 00:
He had talked to Ms.

[00:17:30] Speaker 00:
Hunter.

[00:17:31] Speaker 00:
He had gathered a significant amount of information.

[00:17:34] Speaker 03:
And some of the arguments that Mr. So up to March 2019, when Mr. McGuire's concerns subjected, was he just concerned?

[00:17:45] Speaker 00:
Yes.

[00:17:45] Speaker 00:
Yes, Your Honor.

[00:17:46] Speaker 00:
He was concerned about the management and the way that the CATS program was being managed outside of the whistle-blowing.

[00:17:53] Speaker 03:
Had there been action on those concerns?

[00:17:57] Speaker 00:
Again, he did not become the

[00:18:00] Speaker 00:
He started to take action before he knew about the whistleblowing.

[00:18:04] Speaker 00:
He had begun his assessment in December.

[00:18:08] Speaker 00:
He learned from the Navy.

[00:18:10] Speaker 00:
He had interviewed Navy employees.

[00:18:13] Speaker 00:
He had also talked to Ms.

[00:18:14] Speaker 00:
Hunter.

[00:18:15] Speaker 00:
As of January 2019, he had asked Mr. Katz for a detailed breakdown on how contractor employees were supporting the Katz program.

[00:18:25] Speaker 00:
on january thirtieth two thousand nineteen he learned there was no formally approved demo and the memory of agreement or understanding the work that

[00:18:33] Speaker 00:
I mean he had concerns that DEA could not bring Oracle servers to Fort Bragg.

[00:18:38] Speaker 00:
He reminded him again in February 1st, 2019 to provide a detailed breakdown about what the contractors were doing.

[00:18:46] Speaker 00:
And then in February 5th, 2019, which is again nearly a month before he found out about the whistleblowing, that was when he removed Mr. Katz's task monitor and replaced him with Mr. McBrayer's.

[00:18:58] Speaker 00:
A lot of the focus of Appellant's briefing was the fact that it was the removal of Mr. Bordenaro.

[00:19:04] Speaker 00:
But again, that Mr. Bordenaro was terminated on February 12, 2019, which also predated Mr. McGuire's knowledge of Mr. Katz's whistle blowing.

[00:19:15] Speaker 01:
So Mr. McGuire, I take it, went down to native site visit.

[00:19:21] Speaker 01:
And that was in early March, if I recall.

[00:19:25] Speaker 01:
Yes, Your Honor.

[00:19:26] Speaker 01:
So by that time, presumably, he had enough sources of concern that it was worth a trip down.

[00:19:35] Speaker 01:
And he found nobody home.

[00:19:37] Speaker 01:
Now, the reason that nobody was home was that nobody was in the office was that because of the accommodation that Mr. Katz had, I take it.

[00:19:46] Speaker 01:
But Mr. McGuire was not aware of that at the time, was not aware of the accommodation, I take it.

[00:19:52] Speaker 00:
He was not aware of the accommodation at the time.

[00:19:54] Speaker 00:
He conducted the site visit on March 14, 2019.

[00:20:00] Speaker 00:
But I think he had concerns with the fact that although Mr. Katz may have had an accommodation, you had contractors, such as Ms.

[00:20:08] Speaker 00:
Guerra, only reporting once to work every four to six weeks that she had not logged into the Firebird system since June of 2018.

[00:20:15] Speaker 00:
He had concerns about

[00:20:18] Speaker 00:
the fact that one of the contractors was overseen.

[00:20:21] Speaker 00:
He testified that Ms.

[00:20:24] Speaker 00:
Guerra was overseeing the contractor who was actually at Fort Bragg's work.

[00:20:28] Speaker 00:
They had concern about the security of the servers.

[00:20:31] Speaker 00:
And then there were other concerns.

[00:20:34] Speaker 00:
Again, Ms.

[00:20:35] Speaker 00:
Guerra was overseeing Mr. Rosane.

[00:20:37] Speaker 00:
And then the office space itself was not in a classified facility, and the contractor had to have a maintenance crew.

[00:20:44] Speaker 00:
Mr. Rosane let him into the facility.

[00:20:47] Speaker 00:
So I think there were

[00:20:48] Speaker 00:
I think the record in Appellants Council had analogized it to Miller.

[00:20:52] Speaker 00:
I think we had a pretty careful record here with contemporaneous documentation of Mr. McGuire's testimony, which was largely backed up by either Mr. Della Corte or Ms.

[00:21:01] Speaker 00:
Hunter and contemporaneous memoranda talking about what they found at the site and the condition of the CATS program at that time.

[00:21:19] Speaker 04:
Yes.

[00:21:22] Speaker 02:
A couple of things that bear on this.

[00:21:25] Speaker 02:
First of all, Mr. McGuire said he talked to Mr. Delacorte before he began this review.

[00:21:31] Speaker 02:
Secondly, the record showed that he never really took any concrete action until after Mr. Bordenaro had written that February 6 letter.

[00:21:44] Speaker 02:
Mr. Bordenaro testified that he had told

[00:21:47] Speaker 02:
in a trip to the Navy at Dahlgren that he had told McGuire extensively about both the accommodation and the problems with the program.

[00:21:56] Speaker 02:
And that McGuire loyalties were clear because when Mr. Katz pointed out that this was a crony contract, when Edward Zane resigned because there was nothing for him to do apparently, Mr. McGuire took no action except against my client.

[00:22:13] Speaker 02:
The timeline's a little skewed here.

[00:22:15] Speaker 02:
You have to believe that there were no discussions between Mr. Delacorte and Mr. McGuire regarding the whistleblowing.

[00:22:23] Speaker 02:
You have to believe that Bordenaro's lying when he said he told McGuire about his concerns in November.

[00:22:30] Speaker 02:
You have to believe that McGuire was the one aware of the complaints about Mr. Edward Zane.

[00:22:39] Speaker 02:
You have to believe that it wasn't until March suddenly

[00:22:43] Speaker 02:
after the report that they went to the OIG and the FBI that McGuire suddenly moved into action on a program that's fine.

[00:22:52] Speaker 02:
There's also the red herring of my client's, quote, unavailability in Firebird, which was attacked, which is they don't use Firebird because it can't absorb the information that they have in the CATS program.

[00:23:03] Speaker 02:
That was testified to.

[00:23:05] Speaker 02:
The other thing is, well, he was unavailable.

[00:23:08] Speaker 02:
Well, they were working remotely with their own computers that were not on Firebird.

[00:23:11] Speaker 02:
So that wasn't an issue.

[00:23:13] Speaker 02:
And the other thing McGuire never did, interestingly, how bad this contract was run, never complained to Compass.

[00:23:20] Speaker 02:
He foisted everything on Mr. Katz as his responsibility after he learned about the complaints of Wissane and after he learned from Borden Arrow about the complaints of the project.

[00:23:32] Speaker 02:
One critical point that I think it didn't seem to us at the trial, at the hearing, and even when briefing, but one critical issue to me is this reliance upon the Navy.

[00:23:44] Speaker 02:
for the justification that there were problems.

[00:23:46] Speaker 02:
No Navy people testified.

[00:23:48] Speaker 02:
No Navy affidavits.

[00:23:50] Speaker 02:
No Navy memorandums.

[00:23:52] Speaker 02:
All those personnel were still there.

[00:23:54] Speaker 02:
That was created out of whole cloth after the fact.

[00:23:57] Speaker 02:
And so how that can be substantial evidence, we didn't understand.

[00:24:02] Speaker 02:
And we didn't understand it particularly because Chip McBrayer had testified repeatedly that Eric was right about the placement of the cameras and that the project was being run just fine.

[00:24:14] Speaker 02:
I think it strains credibility.

[00:24:16] Speaker 02:
I'm not asking you to make a credibility determination.

[00:24:19] Speaker 02:
I think it strains credibility to say that despite all of this evidence, we actually presented documents and supervisory testimony that we lose.

[00:24:29] Speaker 02:
And the last thing I'll leave you with is I think it comes down to two events that are critical.

[00:24:34] Speaker 02:
So McGuire testified that he had nothing to do with Bordenaro's being terminated.

[00:24:39] Speaker 02:
And until we had a separate lawsuit by Bordenaro,

[00:24:42] Speaker 02:
in the Eastern District of Virginia, where they sued because they were mistreated as independent contractors.

[00:24:50] Speaker 02:
And Yankevich, the head of Compass, said no.

[00:24:53] Speaker 02:
That was solely done because of what McGuire said.

[00:24:57] Speaker 02:
So there was an inconsistency.

[00:24:59] Speaker 02:
And in the hearing transcript, McGuire says, oh, I misspoke.

[00:25:02] Speaker 02:
Right?

[00:25:03] Speaker 02:
That's got to count for something.

[00:25:05] Speaker 02:
And then the second part of, I think, that's really critical in all this analysis is the idea that

[00:25:13] Speaker 02:
that McGuire really had no explanation for why the program should be shipped to Washington when there was nobody to work on it.

[00:25:23] Speaker 02:
There was not a single employee up in Washington DC to work on this program when he transferred it.

[00:25:28] Speaker 02:
Those things undermined the strength of that testimony.

[00:25:31] Speaker 02:
and I think undermine the substantial evidence.

[00:25:33] Speaker 02:
And the judge, in her opinion, never weighed that against the testimony of witnesses.

[00:25:38] Speaker 02:
It's not our burden to prove that we are right.

[00:25:42] Speaker 02:
It's our burden to prove that this was a contributing factor, and this was clear and convincing, and there wasn't substantial evidence to support the verdict.

[00:25:49] Speaker 02:
So thank you.

[00:25:51] Speaker 04:
Thank you, counsel.

[00:25:52] Speaker 04:
The case is submitted.