[00:00:00] Speaker 05:
Our final case this morning is number 23-1091, Perlick versus DVA.

[00:00:45] Speaker 03:
Good morning may it please the court when the board denied Rejected dr.. Perlick's request for consequential damages for lost earning capacity based upon her failure to quote guarantee Future employment beyond an arbitrary date it misapplied the standard for determining consequential damages

[00:01:12] Speaker 03:
The standard is not a guarantee or a requirement of certainty.

[00:01:17] Speaker 03:
It's a preponderance of the evidence standard, which basically requires that a fact be more likely true than not.

[00:01:25] Speaker 01:
So if we were to agree with you that there was that misapplication of the standard, are you seeking a vacate remand in light of that, or what relief would you be seeking?

[00:01:35] Speaker 03:
Well, we are seeking a vacator and remand, although I do think that the court has the authority, based on the record, to conclude that consequential damages are appropriate.

[00:01:47] Speaker 03:
But what we've requested is a remand so that there can actually be factual findings made with respect to the wealth of evidence presented by Dr. Perlick that she would indeed have continued working beyond the date that was cited, March 31, 2020.

[00:02:04] Speaker 03:
It's an arbitrary date for several reasons.

[00:02:08] Speaker 03:
First, that's simply the date on which a federal grant that Dr. Perlick was working on was set to expire.

[00:02:17] Speaker 03:
Dr. Perlick was an academic researcher at the VA.

[00:02:21] Speaker 03:
and for a career that spans 20 years, routinely worked on term-limited federal grants.

[00:02:28] Speaker 03:
In fact, she had worked on a dozen term-limited federal grants prior to the grant.

[00:02:33] Speaker 02:
I'm sorry.

[00:02:34] Speaker 02:
The statute in the first part says that the individual

[00:02:39] Speaker 02:
would be placed as nearly as possible in the position the individual would have been in had the prohibited personnel practice not occurred.

[00:02:48] Speaker 02:
So the ALJ looked at the position she would have been in because she was terminated in 2018?

[00:02:54] Speaker 02:
2017.

[00:02:57] Speaker 02:
Her contract was set.

[00:02:59] Speaker 02:
Her term contract was going to expire in 19, but the project was going to continue to 2020.

[00:03:05] Speaker 02:
And so basically, as I understand it, looked at it and said that would put her back in the position she would have been in to pay her out to the end of the project.

[00:03:14] Speaker 02:
But then found that beyond that, it was speculative as to how much longer or what project she might have gotten and worked on.

[00:03:25] Speaker 02:
The back pay covers that period that put her where she would.

[00:03:29] Speaker 02:
I mean, this isn't somebody with an open-ended contract.

[00:03:31] Speaker 02:
There was a contract period.

[00:03:33] Speaker 03:
Well, but this is where it's important and what the ALJ ignored is the long-established pattern of annual renewals year after year after year.

[00:03:42] Speaker 03:
Not just for Dr. Perlick, but those were the facts for her.

[00:03:46] Speaker 03:
But across the VA, we've pointed to

[00:03:51] Speaker 03:
People who were working on the same?

[00:03:54] Speaker 03:
Projects with her who remained at the VA after dr. Perlick was terminated and after the March 31st date So the place that she would have been in is she would have been getting another progressing to the next federal grant as she had for 20 years And she would have been progressing to the next one-year contract renewal And this is where the unrebutted expert testimony is very important which was never reckoned with by the ALJ and

[00:04:20] Speaker 03:
This is a field, academic research, in which people routinely work deep into their 70s and 80s.

[00:04:28] Speaker 03:
It's an intellectual output type of job based on cognitive ability where someone really starts to hit their stride at age 69, which was Dr. Perlick's age, when the ALJ determined that she would never work again.

[00:04:42] Speaker 03:
Not just at the VA, but anywhere.

[00:04:44] Speaker 03:
Dr. Perlick testified through her affidavit that she had every intention of continuing to work and, frankly, given her output of articles and book chapters, etc., that's compelling evidence backed up by an expert with statistical data that it's highly likely, more likely than not, probable in fact, that she would have continued working certainly past this arbitrary date.

[00:05:10] Speaker 05:
And she presented evidence also

[00:05:12] Speaker 05:
that the termination and the statements that were made about the termination caused her to be unable to secure future employment, right?

[00:05:20] Speaker 03:
That's correct, Your Honor.

[00:05:21] Speaker 03:
She pointed to a number of factors which were also endorsed by her expert.

[00:05:28] Speaker 03:
that there had been reputational harm resulting from false statements made about the reasons for her termination.

[00:05:35] Speaker 03:
She was very specific in her affidavit about some examples of this.

[00:05:38] Speaker 03:
One of them was within the VA when she attempted to move her grant to a different facility on Staten Island after receiving initial interest.

[00:05:46] Speaker 03:
She was later told, well, I've found out about the disciplinary basis for your termination, and we can't go forward.

[00:05:54] Speaker 03:
There was another specific example she cited outside the VA context.

[00:05:58] Speaker 01:
What the expert testified to is just the very nature for an academic researcher when you're terminated mid-grant It was described by the expert as a career Are you seeking both to challenge the Compensatory damages award and the consequential damages award or solely one or the other?

[00:06:24] Speaker 03:
Yes, it's solely the consequential damages for lost earning capacity.

[00:06:29] Speaker 03:
And by this we mean what she would have been able to earn past March 31, 2020, but for the unlawful termination.

[00:06:38] Speaker 03:
And we believe she had an affiliation with Mount Sinai Hospital, for example, that was canceled and removed.

[00:06:46] Speaker 03:
She was no longer able to continue her research, which had a kick-on effect with her publishing capacity.

[00:06:54] Speaker 03:
and certainly someone who experiences a Mid-Grant termination like this bears a stigma going forward which impacted her subsequently in job applications There's less interest than this is all in the expert testimony There's less interest in an academic researcher who's been removed from their research.

[00:07:15] Speaker 03:
That's their marketability That's what they're selling and when you're suddenly terminated mid-Grant

[00:07:20] Speaker 03:
In addition to the stigma and the black mark on your record that that means in terms of speculation about why you were terminated or standard concerns about when people are whistleblowers, there's also the actual loss of your ability to conduct your research and then use that to continue obtaining future federal grants.

[00:07:41] Speaker 03:
None of this was addressed by the ALJ.

[00:07:45] Speaker 03:
None of it was rebutted either by the VA.

[00:07:48] Speaker 03:
And I understand and discussed earlier in the case that the ALJ doesn't have to detail every single basis for its determination.

[00:07:57] Speaker 01:
But as this court pretty articulately laid out in Whitmore... What is your best statutory and or legislative history support that she should be entitled to these damages that you just described?

[00:08:09] Speaker 03:
Well first it's make-hole relief and I think reference to the two-pronged corrective action just starting with the statutory language.

[00:08:17] Speaker 03:
The first provision is that the individual be placed as nearly as possible in the position the individual would have been in had the prohibited personal conduct not occurred.

[00:08:27] Speaker 03:
That's independent of Prom 2, which addresses consequential damages.

[00:08:31] Speaker 03:
And the legislative history dating back to the WPA's origin, but then especially in the 2012 amendments,

[00:08:40] Speaker 03:
emphasizes that the entire purpose of the act is to make sure that whistleblowers will come forward and that they won't be penalized for that.

[00:08:50] Speaker 03:
And part of it in the amendments added the extra corrective remedy of non- pecuniary damages for emotional distress.

[00:08:59] Speaker 03:
But that's consistent with the notion that if you don't provide for future losses of the kind sought by Dr. Perlick,

[00:09:09] Speaker 03:
You're basically acting in a fashion that's contrary to the entire legislative purpose of the Whistleblower Protection Act, and particularly the enhancement, which is to make sure that whistleblowers are undeterred and don't refuse to come forward out of a fear for the impact it may have on their career.

[00:09:31] Speaker 02:
Part one where it says put you back in the position you most nearly would have been and so got her up to 2020 and your argument is that there's plenty of evidence that her employment would have continued in different capacities going forward.

[00:09:47] Speaker 02:
I find that the out to 80 might have been a little speculative, but at least for some period of time.

[00:09:52] Speaker 02:
But the unfortunate choice of a word, the guarantee she would get employed did look like a standard was set that she had to meet some burden that was higher than just reasonable evidence that she would have continued employment and that this termination was getting in the way of her getting that employment.

[00:10:12] Speaker 03:
I agree with that, Your Honor.

[00:10:14] Speaker 03:
I think the word guarantee is the reason we're here today.

[00:10:17] Speaker 03:
Well, aside from the failure to reckon with a lot of the evidence, but that shows that this is a case that goes beyond mere deference to fact-finding.

[00:10:27] Speaker 03:
We don't think there was substantial fact-finding, but the use of guarantee essentially sets an unattainable bar for just about any term-limited employee, and that's the policy concern here that goes beyond Dr. Perlick.

[00:10:40] Speaker 03:
There is a large category of federal employees who operate under federal grants They're typically term-limited and many such federal employees in in academia and hospital settings work on one-year renewals if someone has to guarantee

[00:10:55] Speaker 03:
what's going to happen after the expiration of a federal grant, notwithstanding the fact that they may have worked like Dr. Pearley for two decades getting one federal grant after another, it would be virtually impossible for anyone to ever assert the entitlement to lost future damages.

[00:11:12] Speaker 02:
How does the Bohack case fit into your analysis that says that consequential damages are limited to actual monetary losses or out-of-profit costs?

[00:11:20] Speaker 03:
Well, Bohack was decided first before the amendments.

[00:11:23] Speaker 03:
And it dealt primarily with non-bikiniary emotional distress damages.

[00:11:29] Speaker 03:
And I think what's instructive about BOHAC, first of all, that's why I don't think BOHAC is controlling here.

[00:11:36] Speaker 03:
But what's instructive about BOHAC is it explicitly stated that if Congress had addressed non-compensatory damages, that might be a rationale to consider a broader scope for remedies.

[00:11:51] Speaker 03:
And it talked in the same context about the notion of expectancy damages.

[00:11:56] Speaker 03:
So I think BOHAC was limited to a prior period in the legislative history of the statute when compensatory damages didn't exist.

[00:12:05] Speaker 03:
And it opened the door itself, quite literally, to the idea that the scope could be remedied by Congress.

[00:12:12] Speaker 03:
Congress did so in 2012.

[00:12:14] Speaker 05:
Well, I'm not sure that you would need to rely on that because BOHAC

[00:12:18] Speaker 05:
I thought it was pretty clear in saying it was dealing with non-pecuniary damages and emotional pain and suffering, which was not allowable under the statute in the 2012 amendment.

[00:12:29] Speaker 05:
Pretty clearly designed to deal with that particular problem.

[00:12:34] Speaker 05:
BOHAC allows pecuniary damages.

[00:12:37] Speaker 03:
That's right, Your Honor.

[00:12:38] Speaker 03:
I agree with that.

[00:12:39] Speaker 03:
And for that reason, I don't think BOHAC is an impediment to a ruling here that would reverse.

[00:12:47] Speaker 03:
Your honor, I see I still have some time.

[00:12:50] Speaker 03:
I can walk through some of the evidence that was ignored.

[00:12:56] Speaker 03:
I think first and foremost, the only rationale that supports the decision, as the ALJ stated it, was the assumption that on March 31st, 2020, upon expiration of the grant, she would have been out the door that afternoon.

[00:13:11] Speaker 03:
Just looking at her record, what's clear is that when prior grants terminated,

[00:13:17] Speaker 03:
Number one, she never lost her job.

[00:13:20] Speaker 03:
But number two, she maintained her position not withstanding the absence of a grant through the end of her term.

[00:13:27] Speaker 03:
At the very least, there's no explanation for why she wouldn't have worked into July of that year when her contract would have expired.

[00:13:36] Speaker 03:
So there's already just a conceptual flaw in the selection of that date.

[00:13:44] Speaker 03:
And what it highlights is this belief that's not borne out by the facts, that's directly contradicted by the facts, that when your grant ends, you lose your job.

[00:13:54] Speaker 03:
It's simply never addressed anywhere in the ALJ's decision why the ALJ made that determination.

[00:14:01] Speaker 03:
If the ALJ had not used the guarantee language and had actually analyzed that decision, there might not be a basis to bring a petition for review.

[00:14:11] Speaker 02:
I have one last question for just the posture of the case.

[00:14:15] Speaker 02:
So compensatory non- pecuniary compensatory damages were awarded to cover both her emotional harm and reputational harm, correct?

[00:14:25] Speaker 03:
I believe that's correct.

[00:14:26] Speaker 02:
So this would be remanded if it was remanded for purposes of looking at future loss earnings and what would be reasonable and foreseeable.

[00:14:35] Speaker 03:
That's correct.

[00:14:36] Speaker 03:
That's correct.

[00:14:37] Speaker 03:
And the reality is that Dr. Perlick continued to apply for jobs.

[00:14:41] Speaker 03:
She applied to dozens of jobs, even during the pandemic, through submission of papers on the underlying motion.

[00:14:49] Speaker 03:
That was January of 2022.

[00:14:51] Speaker 03:
It's outside the record, but I can tell you that she's continuing to seek work.

[00:14:56] Speaker 03:
She's very active.

[00:14:57] Speaker 03:
She's only 73 years old.

[00:14:58] Speaker 03:
And I assume my time has expired.

[00:15:00] Speaker 03:
I'll reserve my time.

[00:15:01] Speaker 03:
Thank you.

[00:15:02] Speaker 05:
We'll give you 10 minutes for a comment.

[00:15:06] Speaker 05:
Mr. Kerr, is that how you pronounce it?

[00:15:07] Speaker 05:
Yes, thank you.

[00:15:16] Speaker 04:
Good morning.

[00:15:17] Speaker 04:
May it please the court?

[00:15:18] Speaker 04:
The administrative judge's use of the word guaranteed.

[00:15:21] Speaker 05:
As I read your brief, you seem to be arguing that under the statute you can't get lost future earnings?

[00:15:32] Speaker 04:
Our argument is that for consequential damages, they have to be foreseeable.

[00:15:39] Speaker 05:
Sure, but that may be true, but if there's a foreseeable loss of future earnings as a result of the termination and related conduct by the agency, surely under the statute you can recover that.

[00:15:53] Speaker 04:
Well, under BOHawk, the damages must be out of pocket.

[00:15:58] Speaker 05:
And it says that must be pecuniary.

[00:16:00] Speaker 05:
And there was a 2012 amendment.

[00:16:02] Speaker 05:
I mean, is the government's position really that you can't get lost earnings if you prove that they resulted from the unlawful termination?

[00:16:12] Speaker 04:
With the 2012 amendments, Congress added.

[00:16:19] Speaker 04:
No, no, no.

[00:16:19] Speaker 05:
Just answer the question.

[00:16:21] Speaker 05:
I mean, is the government's position that if you proved lost future earnings as a foreseeable result,

[00:16:28] Speaker 05:
of an unlawful termination that they're not recoverable under this statute.

[00:16:32] Speaker 04:
As consequential damages, yes, but they could be recoverable as compensatory damages because the statute says future pecuniary losses.

[00:16:41] Speaker 04:
If you look at strictly consequential damages, this court in Bohawk said that's only out-of-pocket losses.

[00:16:47] Speaker 05:
So how could a future... So you agree that under the statute you can recover lost future earnings?

[00:16:52] Speaker 04:
Yes.

[00:16:53] Speaker 04:
If you recover them as future pecuniary losses, which are compensatory.

[00:16:59] Speaker 05:
Well, the one thing that Bohawk is pretty clear about is that the categories here are pretty fluid and not clear.

[00:17:09] Speaker 05:
The scope of consequential damages is not all that apparent.

[00:17:15] Speaker 04:
I agree with you, Your Honor.

[00:17:16] Speaker 04:
They are fluid, and maybe I was making too fine of a point.

[00:17:20] Speaker 04:
But regardless of whether they're consequential damages, which is the way these have been presented, or future compensatory damages, the result is the same, that the use of the word guarantee

[00:17:36] Speaker 05:
was to show... Okay, so let's assume that future earnings are recoverable, lost future earnings are recoverable if you prove the foreseeable result.

[00:17:46] Speaker 05:
If you prove foreseeable... And it was undisputed evidence, right?

[00:17:49] Speaker 05:
I mean, the government didn't put in any evidence to the contrary that that would have happened to her, right?

[00:17:55] Speaker 05:
That she had lost future earnings.

[00:17:58] Speaker 05:
Unrebutted, correct?

[00:18:00] Speaker 04:
It's not unrebutted, Your Honor, because the agency... Not unrebutted?

[00:18:04] Speaker 05:
What evidence did you put in?

[00:18:05] Speaker 04:
The agency put in comparable employees that were separated after a time-limited appointment, which is the situation we have in this case.

[00:18:16] Speaker 04:
The agency's argument... You put in evidence of what?

[00:18:23] Speaker 04:
Comparable contract employees.

[00:18:26] Speaker 04:
who were separated when their contract expired, when they're not to exceed date.

[00:18:31] Speaker 04:
What does that prove?

[00:18:34] Speaker 04:
It goes back to entitlement to employment.

[00:18:42] Speaker 04:
The agency was arguing there's no guarantee.

[00:18:45] Speaker 05:
I don't understand what you're talking about when you're saying there was evidence of comparable employment.

[00:18:49] Speaker 05:
What is the evidence?

[00:18:51] Speaker 05:
That they never got another job after their term appointment expired?

[00:18:58] Speaker 04:
There's no guarantee.

[00:19:00] Speaker 04:
Ah, that's the key, right?

[00:19:02] Speaker 04:
No guarantee.

[00:19:02] Speaker 04:
That's correct, Your Honor, but that shows that it's speculative.

[00:19:05] Speaker 02:
Well, don't you have to look at her personal circumstances?

[00:19:08] Speaker 02:
I mean, she, as they pointed out, had a very long track record of running these programs.

[00:19:12] Speaker 02:
She was getting great reviews.

[00:19:14] Speaker 02:
There were no problems.

[00:19:15] Speaker 02:
This whistleblower thing comes up.

[00:19:16] Speaker 02:
She gets terminated.

[00:19:18] Speaker 02:
At least the record reflects that people were saying things that were getting in the way of her getting any other employment opportunities.

[00:19:25] Speaker 02:
If consequential damages covers the potential for future lost earnings, then she doesn't have to guarantee that she had another job.

[00:19:35] Speaker 02:
She just has to make a showing that it's reasonable and foreseeable.

[00:19:39] Speaker 02:
Based on her personal employment history,

[00:19:42] Speaker 02:
that she could have got a new employment, but for this termination?

[00:19:46] Speaker 04:
She has to make a showing that it's foreseeable by preponderance of the evidence.

[00:19:51] Speaker 04:
And the administrative judge considered the reputation, considered the reputation allegations, considered the emails.

[00:20:01] Speaker 04:
and considered the other employees who are time.

[00:20:04] Speaker 01:
But by using that word guarantee, doesn't that seem that there was a heightened standard applied than what was actually applicable?

[00:20:11] Speaker 04:
No, Your Honor.

[00:20:11] Speaker 04:
Respectively, it means that it's speculative.

[00:20:15] Speaker 04:
The administrative judge was saying that employment past the time appointed term was speculative.

[00:20:28] Speaker 04:
Because there was no right to it.

[00:20:31] Speaker 04:
There was no entitlement to it.

[00:20:33] Speaker 05:
Oh, that's exactly right.

[00:20:34] Speaker 05:
She says, because there was no right, it's speculative.

[00:20:37] Speaker 05:
That's not the right standard.

[00:20:39] Speaker 05:
Well, I would point the court.

[00:20:41] Speaker 02:
But it didn't necessarily have to be with them.

[00:20:43] Speaker 02:
I mean, they've put in evidence that this action interfered with her ability in the marketplace in general.

[00:20:51] Speaker 04:
The administrative judge considered that evidence, considered that she was a time appointed

[00:20:58] Speaker 04:
employee, and therefore had no entitlement.

[00:21:01] Speaker 04:
And also, the date she chose was not arbitrary.

[00:21:09] Speaker 04:
The date she chose was to the project, where her not to exceed date was in June of 2009.

[00:21:20] Speaker 02:
She did it up to the date at the end of the project and that's her that's her future

[00:21:31] Speaker 04:
earnings right there from the time.

[00:21:33] Speaker 02:
No, she'd already been terminated and she would have gone to March of 2020.

[00:21:37] Speaker 02:
So that's back pay.

[00:21:38] Speaker 02:
What happens after the project ends is going to be very dependent in large part on her history, on her performance, on her opportunities, the evidence she can present.

[00:21:51] Speaker 02:
And ultimately, the ALJ may come back to the same decision, but it's kind of shadowed by this word, guaranteed.

[00:21:59] Speaker 04:
Well, I would point the court to the concurrence in Aliva, where Chief Judge Prost was saying that he agreed with the decision, but wanted to make the point that the lost relocation incentive pay was available, but not guaranteed.

[00:22:22] Speaker 04:
And then in the very next line,

[00:22:25] Speaker 04:
Therefore, the board's finding that Mr. Oliva failed to prove preponderant evidence that he would have received the incentive, even if he hadn't been terminated.

[00:22:35] Speaker 04:
That's a concurrence on different facts.

[00:22:37] Speaker 04:
It's a concurrence on different facts.

[00:22:38] Speaker 04:
But it shows the word guarantee doesn't change the standard.

[00:22:42] Speaker 04:
What the administrative judge was looking at was whether it was foreseeable.

[00:22:47] Speaker 04:
And she was saying, it's not guaranteed.

[00:22:50] Speaker 04:
Therefore, it's speculative.

[00:22:51] Speaker 04:
The end of that paragraph says it's speculative and on conjecture.

[00:22:56] Speaker 04:
Because it's not guaranteed.

[00:22:58] Speaker 04:
It's like, oh, that's wrong.

[00:23:01] Speaker 04:
It's not guaranteed means it's past the point of entitlement or right to employment.

[00:23:11] Speaker 04:
And Dr. Perlach, in the brief, cites all of these contract cases.

[00:23:19] Speaker 04:
This is like saying,

[00:23:20] Speaker 04:
I want damages for a future contract that I would have gotten.

[00:23:23] Speaker 04:
This is past the point of where the statute envisions recovery of back pay.

[00:23:29] Speaker 02:
Any at-will employee isn't guaranteed they're going to have their job tomorrow.

[00:23:33] Speaker 02:
But if they get fired for being a whistleblower, and then they don't get rehired back into their position, and then that firing is getting in the way of them getting any other kind of job, if you agree that foreseeable future lost earnings are recoverable as a consequential damage,

[00:23:50] Speaker 02:
You don't have to come in and say, oh, yeah, I had a guarantee of a job.

[00:23:55] Speaker 02:
It's an analysis based on how reasonable this possibility is that they could get this future, because it's future.

[00:24:06] Speaker 04:
I agree that it was available as compensatory damages.

[00:24:10] Speaker 01:
But the result is the same.

[00:24:11] Speaker 01:
Do you want to at least grapple then with the language in, I'm going to say subsection

[00:24:18] Speaker 01:
I, or one, I should say one, I think, about that the individual be placed as nearly as possible in the position the individual would have been in.

[00:24:29] Speaker 01:
So let's ignore the labels for the moment.

[00:24:32] Speaker 01:
And just do you want to respond to that aspect?

[00:24:34] Speaker 01:
Because I believe that was also an argument that was made by opposing counsel.

[00:24:37] Speaker 04:
Well, Dr. Perlach had a time-limited appointment.

[00:24:41] Speaker 01:
So she was placed in the position that she would have been in, absent the... And the history of having additional subsequent one-year appointments.

[00:24:52] Speaker 04:
I feel like you're only accounting for... Well, that's where it gets to where the administrative judge concluded that that was speculative.

[00:25:01] Speaker 04:
That she considered the history of appointments.

[00:25:03] Speaker 04:
She considered the evidence of the email that was sent.

[00:25:08] Speaker 04:
She considered...

[00:25:11] Speaker 04:
the other facts that have been mentioned, except for the two employees.

[00:25:15] Speaker 04:
I want to point out to the court that the two employees who continued on with the project, that's not in the record below.

[00:25:22] Speaker 04:
Dr. Perlick is asking this court to take judicial notice.

[00:25:25] Speaker 04:
I want to come back again.

[00:25:26] Speaker 05:
What evidence did you put in that she would not have continued to work and earned money if she had not been improperly terminated?

[00:25:36] Speaker 04:
We put in evidence.

[00:25:38] Speaker 04:
of a that it's often the case, or it has been the case, where time-limited appointments, when they expire, the term employee is separated.

[00:25:56] Speaker 04:
What happens after that point is speculation.

[00:26:00] Speaker 04:
Maybe they'll continue this trend.

[00:26:02] Speaker 05:
Did you have an expert saying it was speculative?

[00:26:06] Speaker 04:
No, Your Honor.

[00:26:08] Speaker 04:
A description of other employees who were time-limited appointments who did not continue after their time-limited.

[00:26:17] Speaker 04:
Didn't continue to work at all?

[00:26:18] Speaker 04:
Expired.

[00:26:20] Speaker 04:
Well, it didn't continue with the government.

[00:26:25] Speaker 00:
Do you have an appendix page to point us to?

[00:26:27] Speaker 04:
Sorry?

[00:26:28] Speaker 04:
Do you have an appendix page or something to point us to?

[00:26:33] Speaker 04:
Yeah, I'm at APPX 1561 and 1562.

[00:26:34] Speaker 04:
And the basis of the government's argument below is that the remedy.

[00:26:38] Speaker 05:
I find it difficult to believe that you're seriously making this argument.

[00:26:42] Speaker 05:
If you're a whistleblower, and you're told, OK, you'll get back pay for the term that you've been hired.

[00:26:49] Speaker 05:
But if it destroys your career, and you'll never work again as a result of the improper termination, why would anybody be a whistleblower?

[00:27:02] Speaker 05:
Somebody who's 40 years old is going to work for another 30 years, let's say.

[00:27:07] Speaker 05:
Why would you blow the whistle if you were told you'll get your pay to the end of the contract, but you'll never work again, and you won't be able to recover from that?

[00:27:17] Speaker 04:
Your Honor, the facts in this case are that... No, but answer the question.

[00:27:21] Speaker 05:
Isn't that directly contrary to the purpose of the statute to say that you can't get future wages?

[00:27:29] Speaker 04:
You can get future wages if you can show that they're foreseeable.

[00:27:32] Speaker 05:
And a time-appointed... And so what was missing from her proof?

[00:27:38] Speaker 04:
As a time-appointed term employee,

[00:27:45] Speaker 04:
What happens after the contract is over is speculative.

[00:27:50] Speaker 04:
What happens after her not to exceed date is reach, is speculative.

[00:27:53] Speaker 02:
Did she put on evidence, though, that she had talked to people in the academic field about doing research and then was turned down because they had heard gossip, rumors, whatever, about her behavior as a whistleblower?

[00:28:07] Speaker 02:
Without me judging, I mean, there was evidence, though, that she had employment opportunities and that they were being denied.

[00:28:15] Speaker 04:
There was evidence that she had applied to other positions, and they were denied.

[00:28:24] Speaker 04:
And I can't put my finger on it, but the administrative judge considered that, and considered the expert's description of her.

[00:28:33] Speaker 05:
Where does the administrative judge say she disbelieved that testimony?

[00:28:43] Speaker 04:
On the appendix 87.

[00:28:45] Speaker 04:
87?

[00:28:46] Speaker 04:
It's not disbelieving the test of the reputational harm.

[00:28:53] Speaker 04:
It's determining whether the future employment beyond the date of the contract is speculative.

[00:29:02] Speaker 04:
As a matter of law.

[00:29:04] Speaker 04:
Well, in this case, the facts of the case being a time-limited appointment

[00:29:13] Speaker 04:
And that coinciding with her entitlement or her rights to employment beyond the appointment.

[00:29:25] Speaker 02:
It's just so colored by, unfortunately, that choice of words of guarantees.

[00:29:30] Speaker 02:
I'm on that page 87.

[00:29:33] Speaker 02:
And the judge is saying there were no guarantees of future employment beyond that date, the date her contract was going to terminate.

[00:29:44] Speaker 02:
And that she agreed that the analysis, at least with regard to her working until age 80, was conjecture, not based on facts.

[00:29:54] Speaker 02:
But there were no guarantees.

[00:29:57] Speaker 02:
Again, it just runs up against the problem that it's setting a standard for the plaintiff to come in and say,

[00:30:04] Speaker 02:
Here, I had a guarantee, not necessarily from the VA, but from anybody or everybody.

[00:30:09] Speaker 02:
I had to show I was guaranteed I'd be employed again.

[00:30:14] Speaker 04:
I mean, the specific facts of this case is this is a time appointment.

[00:30:19] Speaker 04:
And so the guarantee language goes back to the entitlement.

[00:30:26] Speaker 04:
What entitlement did she have from the government for employment going forward?

[00:30:33] Speaker 04:
And the court looked at her contract ending on June 7, 2019, and decided that, well, I'm going to take it a little further.

[00:30:42] Speaker 04:
I'm going to take it further to March 31, 2020.

[00:30:45] Speaker 04:
because these appointments usually coincide with the project.

[00:30:48] Speaker 04:
And the project ends at March 31, 2020.

[00:30:51] Speaker 04:
So the administrative judge decided that Dr. Perlick was entitled to some of the funds past her employment, some of the back pay.

[00:31:00] Speaker 04:
But beyond that, the administrative judge, looking at the evidence, determined that what would have happened is speculative.

[00:31:09] Speaker 04:
And that's where the no guarantee language comes in.

[00:31:11] Speaker 04:
That's her way of saying it's speculative,

[00:31:15] Speaker 04:
It's conjecture what happens after the not to exceed date or plus to the end of the project.

[00:31:23] Speaker 05:
In this case, under these facts.

[00:31:24] Speaker 05:
We're out of time.

[00:31:25] Speaker 05:
Thank you.

[00:31:26] Speaker 05:
Thank you, Your Honor.

[00:31:26] Speaker 05:
Mr. Walsh, we have two minutes.

[00:31:35] Speaker 03:
I think the court has precisely identified the flaws with the decision below.

[00:31:40] Speaker 03:
Neither Dr. Perlick nor anyone on a term-limited contract or for that matter as the court noted an at-will employee can guarantee future employment.

[00:31:49] Speaker 03:
That doesn't mean that they would have been terminated or that they wouldn't have continued working somewhere.

[00:31:54] Speaker 03:
The record evidence is overwhelming that Dr. Perlick had every reasonable probability of continuing to work past March 31st, 2020.

[00:32:05] Speaker 03:
And as the court noted, there's nothing in the record submitted that demonstrates otherwise or that undermines Dr. Perlick's evidence.

[00:32:14] Speaker 03:
The reference to comparator evidence, I believe that's referring to

[00:32:19] Speaker 03:
the same comparator evidence that the ALJ rejected at the initial determination phase on liability because the supposed comparators were not similarly situated.

[00:32:30] Speaker 03:
But again, this would simply be a fact question for analysis and for some sort of explication by the ALJ.

[00:32:37] Speaker 03:
None of that happened.

[00:32:38] Speaker 03:
Instead, we have just a blanket requirement for a guarantee and then a failure to address any of the overwhelming evidence.

[00:32:46] Speaker 03:
Unless there are further questions, we'll rely on our papers.

[00:32:50] Speaker 05:
Okay.

[00:32:50] Speaker 05:
Thank you.

[00:32:50] Speaker 05:
Thank both counsel.

[00:32:51] Speaker 05:
The case is submitted.

[00:32:52] Speaker 05:
That concludes our session for this morning.

[00:32:54] Speaker 05:
Thank you.