[00:00:00] Speaker 00: Carter, your Assistant Department of Veterans Affairs, 2023-1303. [00:00:05] Speaker 00: Mr. Petrie? [00:00:06] Speaker 00: Petrie. [00:00:10] Speaker 00: Petrie. [00:00:11] Speaker 04: Yes. [00:00:13] Speaker 04: Good morning, Your Honors. [00:00:14] Speaker 04: May it please the Court, I am Amarcus Petrie on behalf of the petitioner, Ms. [00:00:17] Speaker 04: Tiffany Punk. [00:00:19] Speaker 04: As you are aware, we are here today for the third time concerning the application of the Whistleblower Protection Act, [00:00:24] Speaker 04: in response to the Department of Veterans Affairs personnel action in this case. [00:00:29] Speaker 04: It is the petitioner's argument that the way that the administrative judge applied the law in this decision was so arbitrary, capricious, and unsupported by substantial evidence. [00:00:37] Speaker 04: This court will feel obligated to vacate that decision and remand this case for corrective action with an appropriate application of the law. [00:00:44] Speaker 04: In the AJ's decision, much of it was spent unfairly attacking the credibility of Ms. [00:00:48] Speaker 04: Potter in order to rule that all the commonwealth. [00:00:51] Speaker 02: Is it your view that her credibility should not be an issue here? [00:00:54] Speaker 04: no your honor we agree with the government that the credit that the a j [00:00:59] Speaker 04: This court's precedent requires a weighing of all pertinent evidence and recognizes that it's the AJ's duty to make credibility determinations to resolve conflicting evidence. [00:01:11] Speaker 04: However, our argument is that the AJ failed to point to conflicting evidence in order to justify the application of Hillen to attack Potter's credibility and used those unsupported credibility determinations to reach a decision unsupported by the facts. [00:01:29] Speaker 04: Our argument is that there's a lot here. [00:01:32] Speaker 02: There were a lot of factual issues. [00:01:34] Speaker 02: There were a lot of issues disputed, including witnesses' credibility. [00:01:39] Speaker 02: Are you asking us effectively to reweigh all of this evidence in your favor? [00:01:46] Speaker 02: No, your honor. [00:01:46] Speaker 02: This is just an odd task to be before us here, because it's so specific to the evidence that was submitted here, including credibility, determinations, and all this stuff. [00:01:58] Speaker 04: No, Your Honor, we're not asking you to rewrite all the factual. [00:02:04] Speaker 04: What we're asking you to do is apply the facts to the actual law. [00:02:07] Speaker 04: And that is what the judge did not do. [00:02:09] Speaker 04: And in Anderson v. City of Bessemer City, it states that trial court may not insulate [00:02:15] Speaker 04: his findings from review by denominating them credibility to determinations. [00:02:20] Speaker 04: And it's our argument that that is exactly what the judge. [00:02:24] Speaker 02: All you're asking us to do is what? [00:02:26] Speaker 02: Apply the law to the facts. [00:02:28] Speaker 02: Apply the facts to the opposite law. [00:02:29] Speaker 02: Can you give us a couple of examples? [00:02:31] Speaker 02: why there was not substantial evidence or whatever standards you're using. [00:02:36] Speaker 02: Yes, absolutely. [00:02:37] Speaker 02: I mean, there's a lot here, and there are a lot of determinations. [00:02:41] Speaker 02: I'm not going to swear behind everything the AJ said in terms of credibility or whatever, but we're taking the record in its entirety, including the deference we show to weighing the evidence. [00:02:54] Speaker 02: I'm having a hard time understanding what justifies the remanding. [00:02:58] Speaker 04: Absolutely. [00:02:59] Speaker 04: So there were several clear error findings. [00:03:02] Speaker 04: Apex Appendix 15 and 16, when the judge found that Deering's frustration with IG complaints was only concerning anonymous complaints, when the fact security showed that he was frustrated with all IG complaints, [00:03:18] Speaker 04: And there was appendix 25 to 26. [00:03:22] Speaker 05: Can I just slow you down a bit? [00:03:24] Speaker 05: Where does the AJ say the frustration was only with anonymous complaints? [00:03:30] Speaker 05: In 15 to 16. [00:03:33] Speaker 05: I hear you saying that. [00:03:34] Speaker 05: Can you show me where 15 to 16? [00:03:35] Speaker 05: Yes. [00:03:36] Speaker 05: Is it the second, the paragraph that starts second? [00:03:45] Speaker 04: Yes. [00:03:57] Speaker 05: The evidence shows Dearing was only modestly frustrated with the IG's investigation. [00:04:01] Speaker 05: I find nothing blameworthy in that attitude, realistically. [00:04:04] Speaker 04: Oh, I'm sorry. [00:04:05] Speaker 04: APS 16, third paragraph. [00:04:07] Speaker 04: Third, Dearing admitted frustration was with responding to anonymous complaints, which has nothing to do with today's issue. [00:04:16] Speaker 04: whether he canceled a vacancy on November 1, 2015 because of appellants' non-anonymous July 10, 2014 email. [00:04:24] Speaker 05: So you would have us find that that's a clearly erroneous finding. [00:04:29] Speaker 04: Correct. [00:04:29] Speaker 04: Because the facts in the record show he was frustrated with OIG complaints in general and not simply anonymous complaints. [00:04:36] Speaker 04: All right. [00:04:37] Speaker 04: You can move on, sir. [00:04:37] Speaker 04: Thank you. [00:04:44] Speaker 04: Third, when he found that, when he found APPX 34, finding that appellate never actually testified that she told Tatami she was being retaliated against for inspector general activity, that's in clear error to the evidence in the record. [00:05:00] Speaker 04: where Tatami testified that yes, she did let me know there was a previous OIG complaint. [00:05:07] Speaker 04: The question was as do you recall Potter stating to you in that meeting or in any other meetings that she felt like she was being retaliated for OIG complaints. [00:05:16] Speaker 04: She said, I recall Potter telling me that the previous EEO manager prior to me and that she had spoken to her about it and about the complaint and how she was feeling then, she thought that that may have had something to do with her situation, about her situation. [00:05:30] Speaker 04: And there were several other clear errors that I could point to that the judge clearly misapplied the facts in the case. [00:05:39] Speaker 05: How, if at all, did those clear errors, if we assume that they are, help you rebut the finding [00:05:46] Speaker 05: that there was clear and convincing evidence that the position of chief nurse was going to be cancelled, independent of what your client said in her whistle-blowing. [00:05:59] Speaker 05: very often so that's that's the entire argument argument is I'm sorry how do you tie those if you if you persuade us clear factual errors how do you tie that to the only issue in the case which is whether or not there was clear and convincing evidence that that chief nurse position was not going to be filled [00:06:20] Speaker 04: So the way that you tie it is that the judge is tasked with weighing, so when you apply car factors, the judge is tasked with weighing the agency's evidence, i.e., the agency's evidence for the strength of its, the assessing the strength of the agency's evidence in support of its personnel action, when assessing the existence and strength of the agency's motive to retaliate, and when assessing the evidence that the agency takes similar actions against employees who are not whistleblowers. [00:06:47] Speaker 04: That is the judge's task, to weigh those car factors and determine whether that reaches a clearly convincing evidence burden. [00:06:54] Speaker 04: The judge is then tasked with weighing the countervailing evidence to determine whether it fairly detracts from that weight. [00:07:02] Speaker 04: What the judge essentially did in this case was determine that all of the countervailing evidence was irrelevant or harmful based on an improper and unsupported credibility determination against Potter. [00:07:14] Speaker 04: So essentially what he did was place the burden on Potter to show that the evidence didn't. [00:07:20] Speaker 02: So all of this that you're telling us says we are supposed to say that he made the wrong credibility determination on Potter. [00:07:27] Speaker 02: that he improperly gave way to certain evidence and not to other evidence. [00:07:33] Speaker 02: It seems like you want us to retry this case, or you want us to send it back to him and identify various things, like you should have credited her and not him. [00:07:45] Speaker 02: You should have relied on this and not that. [00:07:48] Speaker 02: I'm not clear what we're supposed to do with this. [00:07:52] Speaker 02: 700 page or very long, detailed. [00:07:55] Speaker 02: There are numerous findings. [00:07:57] Speaker 02: Again, you're challenging credibility. [00:07:59] Speaker 02: You're challenging weight. [00:08:01] Speaker 02: I don't know what we're to do with that, given our standard of review. [00:08:04] Speaker 04: No, Your Honor. [00:08:04] Speaker 04: What I'm asking you to do is the finding that his finding was clearly erroneous. [00:08:09] Speaker 01: All of his findings, some of his findings, half of his findings? [00:08:13] Speaker 04: All of his findings. [00:08:14] Speaker 00: All of his findings are clearly erroneous. [00:08:16] Speaker 04: That is correct, Your Honor. [00:08:17] Speaker 00: And isn't substantial evidence [00:08:20] Speaker 00: the test rather than being clearly erroneous? [00:08:24] Speaker 04: No, no, Your Honor. [00:08:25] Speaker 04: The substantial evidence has to support a clear and convincing evidence burden. [00:08:30] Speaker 04: So the substantial evidence that's presented is looked at through the clear and convincing evidence [00:08:36] Speaker 04: links. [00:08:37] Speaker 04: So that's what he's tasked with. [00:08:39] Speaker 04: He has to find clear and convincing evidence based on the cause factors. [00:08:44] Speaker 04: And this is the agency's evidence, not the countervailing evidence. [00:08:49] Speaker 04: Ms. [00:08:49] Speaker 04: Potter is not tasked with providing countervailing evidence to a clear and convincing evidence standard. [00:08:55] Speaker 04: And that is what the judge applied. [00:08:57] Speaker 04: He basically stated, because I don't believe anything Potter has said, I'm going to strengthen [00:09:04] Speaker 04: the agency's reasoning for their determination. [00:09:07] Speaker 04: And we have argued from the inception of this case that the facts are clear. [00:09:11] Speaker 04: To support Card Factor 1, the agency put forth one vague email from Dr. Dearing stating, we need to have more discussions about the best way to structure the service. [00:09:20] Speaker 04: The remainder of their evidence is weak at best. [00:09:23] Speaker 04: In response, the petitioner put forth a plethora of countervailing evidence to detract from that one vague email, including Dr. Dearing's own hearing testimony, [00:09:33] Speaker 04: where he stated, I don't recall what precipitated this. [00:09:38] Speaker 04: I just know we had lots of discussion around it. [00:09:40] Speaker 04: He then went on to state, I don't remember specifically what caused us to pull it back. [00:09:47] Speaker 04: And then he furthered that statement. [00:09:49] Speaker 04: Equally as impactful was the agency's own management official, Ed Lowe, who testified that there was animosity specifically towards Potter regarding her participation in OIG complaints. [00:10:02] Speaker 04: He went one step further and stated, prior to the OIG report coming out in January 2015, he believed there was animosity towards nurses. [00:10:11] Speaker 04: He didn't believe there was animosity towards nurses. [00:10:14] Speaker 04: However, after the report came out, he believed there was animosity specifically towards Potter. [00:10:21] Speaker 04: Even more damaging was the March 2017 rushed re-recruitment of the chief nurse for a position by Potter's supervisor, Dr. Smith, three days after Potter submitted her letter of resignation to Nelson and the same day that Belaine Ochoa confirmed Potter's release date. [00:10:39] Speaker 04: Even though the AJ refused to consider whether substantial evidence proved Smith likely knew of Potter's protected disclosures, her motive to retaliate was still relevant in a question [00:10:49] Speaker 04: the agency needed to address. [00:10:51] Speaker 04: The fact that it didn't is where the AJ continues to misapply the law. [00:10:56] Speaker 04: He continues to hold that evidence not in the record is a flaw to the petitioner's case. [00:11:03] Speaker 04: However, that is the exact opposite of how WPA cases are evaluated. [00:11:08] Speaker 00: Counsel, you're into your butthole time. [00:11:10] Speaker 00: You can continue as you wish, or you can save it. [00:11:13] Speaker 04: I will make one more statement, and then I will say the remainder. [00:11:16] Speaker 04: Once Potter makes out a prima facie case, the burden is on the government to produce evidence that supports their personnel actions. [00:11:24] Speaker 04: Motives to retaliate, treatment of non-whistleblowers. [00:11:27] Speaker 04: Evidence that is not produced is to the government's peril, not Potter's. [00:11:32] Speaker 04: And I will serve my remaining time. [00:11:34] Speaker 00: Thank you. [00:11:35] Speaker 00: We will do that. [00:11:36] Speaker 00: Mr. Bird. [00:11:45] Speaker 03: Good morning, Your Honor, and may it please the court. [00:11:47] Speaker 03: As Judge Proce points out, yes, there is a lot in the AJ's decision below. [00:11:52] Speaker 03: The AJ's decision memorializes a thorough consideration of the entirety of the evidence in this case. [00:11:59] Speaker 03: That is both [00:12:00] Speaker 03: that is both relevant and that is irrelevant to the issue at hand. [00:12:05] Speaker 03: To recall, we only have one protected disclosure still remaining in this case. [00:12:08] Speaker 03: That is the July 10, 2014 email from Ms. [00:12:11] Speaker 03: Potter to primarily Dr. Deering, the deciding official who decided to cancel the vacancy in November 2015, which is a personnel action at issue. [00:12:20] Speaker 03: The administrative judge weighs the evidence thoroughly, concludes that majority of the evidence, as articulated by the administrative judge at page six of his opinion, is mostly unsupported, fallacious, and Ms. [00:12:33] Speaker 03: Potter's credibility is lacking. [00:12:35] Speaker 03: That evidence being the evidence that Ms. [00:12:37] Speaker 03: Potter contended detracted from the agency's legitimate reasons for canceling the vacancy end of November 2015. [00:12:46] Speaker 03: Turning first to the credibility, I guess, legal issue that Ms. [00:12:51] Speaker 03: Potter has attempted to bring before the court, there is simply no support for the notion that the administrative judge, who is tasked with a duty to consider the [00:13:01] Speaker 03: witnesses credibility that come before the administrative judge that the A.J. [00:13:06] Speaker 03: cannot consider the credibility of the whistleblower, especially, and in this type of case, as we stated in our briefing, particularly 16 through 21 of our brief, [00:13:17] Speaker 03: That produces an absurd result where the administrative judge would need to accept as credible the assertions by the whistleblower and disregard any conflicting evidence in the record that might undermine that evidence. [00:13:32] Speaker 03: That is simply not the way that this court has interpreted the AJ's broad duty to assess credibility of witnesses that appear before the board. [00:13:39] Speaker 05: That may be right as a broad legal matter, but in this specific case, which as you've emphasized, is a very narrow remand by the time it went back, the third time I think. [00:13:51] Speaker 05: What could her credibility have to do with the agency's effort [00:13:57] Speaker 05: to show by clear and convincing evidence that they were going to not fill this position anyway. [00:14:02] Speaker 03: Well, Your Honor, in this case, and this may be a unique situation, it may not be the case that whistleblower credibility is always relevant to the inquiry. [00:14:12] Speaker 03: As Your Honor, the under... [00:14:13] Speaker 03: current of your honor's question is that it is the agency's burden to establish by clear and convincing evidence that it would have taken the personnel action despite their protective disclosure at issue. [00:14:22] Speaker 03: In this case, however, the whistleblower makes numerous allegations attempting to discredit the agency's legitimate reasons for taking the personnel action at issue. [00:14:36] Speaker 03: Whistleblower's credibility inherently has some effect on to what extent [00:14:41] Speaker 03: the administrative judge is going to weigh the whistleblower's allegations versus the agency's legitimate reasons when weighing the evidence before the administrative judge. [00:14:53] Speaker 03: In other words, in short, the whistleblower's statements to the extent that they're unsupported, they're tainted by bias, or they're inconsistent with other whistleblower statements or other witness testimony in the record or other documentary evidence in the record need to detract from the weight that the administrative judge were to sign [00:15:11] Speaker 03: So that evidence, we're weighing it against the evidence that the agency puts forth for the personnel action. [00:15:17] Speaker 05: Is she somehow a witness to some of the things that the agency is relying on as part of its rebuttal? [00:15:24] Speaker 05: Is that what you're saying? [00:15:26] Speaker 03: Well, Your Honor, the whistleblower in this case seems to be a witness to many of the things that she testified to before the board, including, I mean, she is certainly a witness to the fact that the agency indeed canceled the vacancy in November 2015. [00:15:45] Speaker 03: She did receive from HR an email noting that the position was not being voted at that time. [00:15:50] Speaker 03: She is, therefore, a prescipient witness as to that event. [00:15:53] Speaker 03: She's also, of course, a witness to the protective disclosure that she made in July 10, 2014. [00:15:59] Speaker 03: That is her email. [00:16:02] Speaker 03: There is much in the case that she is not a witness to, I guess, firsthand. [00:16:07] Speaker 03: And the AJA takes into account that despite broad assertions made by the whistleblower of connections between actions that were happening around the time within the Phoenix VA [00:16:21] Speaker 03: And her, again, sole protected disclosure remaining at issue in this case, there simply is no connection between those events. [00:16:31] Speaker 03: And that detracts, I think, logically overall from the credibility of the whistleblower's case before the administrative judge. [00:16:41] Speaker 03: The counsel opposite made a reference to the Hillen factors. [00:16:45] Speaker 03: As this court is aware, this court does not require a formalistic application of those factors. [00:16:50] Speaker 03: Numerous cases provide for that proposition, including the Habe case, H-A-E-B-E, that we have cited in our brief. [00:16:57] Speaker 03: Mr. Petrie also mentioned a broad error of applying the facts to the law incorrectly. [00:17:07] Speaker 03: He went through a couple of examples at appendix 15 through 16, the reference being to the administrative judges weighing of Ms. [00:17:17] Speaker 03: Potter's allegations around the decision maker here, Dr. Deering, being frustrated admittedly with anonymous IG complaints. [00:17:26] Speaker 03: We painstakingly go through all of the evidence in our brief for this point, primarily at response brief 28 through 31. [00:17:34] Speaker 03: We reference, for example, the testimony that is substantial evidence for the administrative judge's finding that Dr. Deering was primarily frustrated with anonymous OIG complaints. [00:17:46] Speaker 03: That is, that Appendix 323 to 324. [00:17:50] Speaker 03: And again, we cite that at our brief at page 28 through 31. [00:17:53] Speaker 05: Is the finding that he was only frustrated with anonymous complaints? [00:17:58] Speaker 03: No, it's not, Your Honor. [00:17:59] Speaker 03: We do point that out at pages 20 to 31 of our brief. [00:18:02] Speaker 03: It's not that he was only fresher with that. [00:18:04] Speaker 03: That is just the response limited to the scope of the question that he was asked. [00:18:10] Speaker 03: Again, that testimony is at appendix 323 to 324. [00:18:14] Speaker 03: And again, just to level set on where we are, Ms. [00:18:17] Speaker 03: Potter's July 10, 2014 protected disclosure, the only disclosure still at issue, is not an OIG complaint, but rather it is a summary of the way that Ms. [00:18:27] Speaker 03: Potter was responding to an OIG inquiry. [00:18:30] Speaker 03: And in some sense, therefore, to the extent that this issue is about anonymous OIG complaints, it's simply misplaced. [00:18:37] Speaker 03: Mr. Petrie also mentioned the exchanges between Ms. [00:18:42] Speaker 03: Potter and Thotemy, T-A-D-E-M-Y. [00:18:47] Speaker 03: This relates to equal employment opportunity complaints, which, as the administrative judge explains at pages 33 and 34 of the appendix, and we echo it, response 39 through 40, that seeks to change the reprisal theory [00:19:06] Speaker 03: Again, the reprisal theory in this case at this point is based solely on the July 10, 2014 email that the court is well aware of. [00:19:16] Speaker 03: Looking to the rest of my notes, there was some discussion about the evidence in response to the CAR factor one. [00:19:29] Speaker 03: the car factors, as the court is aware, is just pertinent considerations in assessing the agency's independent causation burden showing. [00:19:38] Speaker 03: There was a reference to a, quote, vague email by Mr. Petrie. [00:19:44] Speaker 03: The evidence supporting the decision to cancel the vacancy in November 2015 is [00:19:54] Speaker 03: comprised of many elements, one of which is an email, a contemporaneous November 1, 2015 email from Dr. Deering, again, the deciding official to HR, directing the cancellation of the vacancy for the reasons being stated there. [00:20:09] Speaker 03: We need to assess how to structure this service, who this person is going to report to. [00:20:14] Speaker 03: That email is at appendix 483 to 484. [00:20:21] Speaker 03: Mr. Petrie, I believe, alluded also to corroborating testimony around that. [00:20:27] Speaker 03: That's at appendix 295 to 298. [00:20:31] Speaker 03: We also have other testimony from other officials within the VA who were not involved in the decision to cancel, but nonetheless corroborate underlying concerns within the Phoenix VA about the need to restructure the service, decide who this person is going to be reporting to, which are all legitimate concerns, undoubtedly, [00:20:49] Speaker 03: And that's, for example, by Mr. Griffin, who was the medical center director at appendix 270 to 271. [00:20:55] Speaker 03: I think Mr. Petrie also mentions [00:21:00] Speaker 03: seeks to intimate that there was a fuzzy recollection by Dr. Deering when he was testifying before the board in October 2018. [00:21:08] Speaker 03: Again, this is October 2018 when he's testifying. [00:21:11] Speaker 03: The protected disclosure at issue, July 2014. [00:21:15] Speaker 03: November 2015 is a personnel action. [00:21:17] Speaker 03: So we're talking about a substantial passage of time. [00:21:21] Speaker 03: And Dr. Deering at that point no longer worked at the VA. [00:21:24] Speaker 03: However, as the administrative judge points out, [00:21:28] Speaker 03: Dr. Dearing's reasons for canceling the vacancy were not undermined on cross. [00:21:34] Speaker 03: The petitioner had the chance to do that and failed to do that. [00:21:38] Speaker 03: And that exchange is at appendix 335 to 336. [00:21:44] Speaker 03: There was some reference on car factor two to, I guess, [00:21:51] Speaker 03: Staying with Car Factor 1 for one more minute, there was a reference to a rush in the re-recruitment of the position in March 2017. [00:21:59] Speaker 03: There's simply no evidence supporting that there was a rush, and we detail that in our brief as the AJ does at Appendix 44 through 45, but rather [00:22:13] Speaker 03: This is an action that happened after the facts that are relevant to this matter 16 months later, judging a deciding official's reasons for taking an action based on a future that that deciding official simply had no involvement in. [00:22:27] Speaker 03: And that is a legitimate reason to discredit that attempt by the petitioner to show that the action being taken here was animus or in retaliation for the sole predicted disclosure we have. [00:22:38] Speaker 03: For the court's awareness on the motive point, [00:22:41] Speaker 03: There is no argument made in petitioner's reply brief countering our presentation in our response brief about the administrative judge's findings on motive being supported by substantial evidence. [00:22:58] Speaker 03: On car factor three, there was minimal reference to the ability or the consideration there being around similarly situated non-whistleblowers [00:23:10] Speaker 03: As the administrative judge makes clear, and I believe as this court has recognized in the past and previous iterations of this case, there simply is no showing in the record of whether the other applicants, there were three additional applicants, were whistleblowers or not. [00:23:24] Speaker 03: Therefore, the factor under, as this court has recognized in Whitmore and Carr, I believe, as well, falls away and does not bear. [00:23:32] Speaker 02: I guess it's not a big deal in this case, but I have a hard time understanding and processing the issue with respect to the comparators. [00:23:40] Speaker 02: If they were whistleblowers, then it would iner not to her benefit, because unless you think that they were just trying to exclude all whistleblowers. [00:23:52] Speaker 02: If they were not whistleblowers, then that cuts in the government's favor and not in her favor, right? [00:23:58] Speaker 02: I don't know how to process that. [00:24:00] Speaker 03: I think that generally is correct, Your Honor, that if the other applicants were shown to be not whistleblowers, [00:24:07] Speaker 03: They're at least inherently similarly situated in that they all apply for the same position. [00:24:12] Speaker 03: They all don't get that position. [00:24:14] Speaker 03: That could enter into the benefit of the government. [00:24:17] Speaker 03: However, that is a hypothetical, not at issue in the case. [00:24:19] Speaker 02: What if they were all whistleblowers? [00:24:22] Speaker 02: Whose benefit does that enter into? [00:24:23] Speaker 03: That may be a situation, Your Honor, that puts the government on notice, or I guess obligates the government potentially to put on evidence about the facts surrounding those individuals more than just the fact that they were whistleblowers. [00:24:40] Speaker 02: But does it cut up against her because that could mean that they were retaliating against someone other than Ms. [00:24:46] Speaker 02: Potter? [00:24:47] Speaker 02: I guess I'm having a hard time absorbing which way that would cut. [00:24:51] Speaker 03: I think there are a lot of facts that are unknown about that situation, Your Honor, and whether it would cut against Ms. [00:24:56] Speaker 03: Potter or in favor of the government I think would be a factual, a fact-intensive inquiry by the administrative judge below. [00:25:02] Speaker 03: To the extent that that question presents itself in a different case, that's not necessary for this case, where we have strong evidence in support of the agency's legitimate reasons for canceling the vacancy. [00:25:14] Speaker 03: And additionally, a lack of motive on the individual involved in the cancellation decision, Dr. Dearing, the court, based on the substantial evidence supporting the administrative judge's decision below, we respectfully request an affirmance. [00:25:31] Speaker 03: Thank you. [00:25:32] Speaker 00: Thank you, counsel. [00:25:34] Speaker 00: Mr. Petrie has some time left. [00:25:36] Speaker 04: Thank you, your honor. [00:25:37] Speaker 04: Very quickly, in regards to my counterpart, he stated that there were a lot of facts unknown as regards to car factor three. [00:25:43] Speaker 04: And this is exactly why this cannot, this car factor could not be a neutral car factor. [00:25:48] Speaker 04: It was the government's responsibility to put forth all evidence to support each car factor. [00:25:53] Speaker 04: That's their burden of proof. [00:25:56] Speaker 04: In regards to Judge Stark's comment concerning the relevance of the whistleblower in regards to the car factors, you are exactly correct. [00:26:04] Speaker 04: Any evidence that calls into question the whistleblower's credibility should be viewed as countervailing evidence and applied to the analysis after the car factors have been waived. [00:26:15] Speaker 04: I would argue it's like an order of operation in math. [00:26:19] Speaker 04: You can't come to the correct answer if you don't follow the correct order. [00:26:23] Speaker 04: I believe the A.J. [00:26:24] Speaker 04: intentionally reversed the order of analysis of the car factors and the countervailing evidence in order to use the flawed credibility determinations to come to the conclusion he preferred. [00:26:34] Speaker 04: In response to a couple of other [00:26:40] Speaker 04: clear errors in this case. [00:26:41] Speaker 04: I'd like to point out that my counterpart said that there was no evidence of a rushed re-recruitment. [00:26:48] Speaker 04: That is clearly opposite of what the record reflects. [00:26:52] Speaker 04: The record reflects that 416 [00:26:55] Speaker 04: APPX 468 and 469. [00:26:58] Speaker 04: There was an ARPA put in by Robert McCall the day that Belana Choa confirmed that Potter was going to be resigning. [00:27:06] Speaker 04: Dr. Smith put in an ARPA that day, that day requiring that the chief nurse for position to be reclassified. [00:27:14] Speaker 04: And in her statement to McCall, she says, I want this today. [00:27:19] Speaker 04: That's clearly a rush. [00:27:21] Speaker 02: When did Deering leave? [00:27:23] Speaker 04: I believe in the end of 2015 or the beginning of 2016. [00:27:29] Speaker 04: However, Your Honor, there is no precedent which holds that the review of independent causation ceases after the personnel action has been taken. [00:27:38] Speaker 04: In fact, it would be consistent with the finding in Whitmore, which states once the burden shifts to the agency, [00:27:44] Speaker 04: Evidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record. [00:27:52] Speaker 04: And it's absolutely pertinent that the day Miss Potter confirmed her resignation, the position that she had been seeking this entire time was rushed for re-recruitment. [00:28:02] Speaker 04: So the day she was out the door was the day they decided that they were going to re-recruit for this position. [00:28:07] Speaker 05: Is there any evidence today the decision makers with the re-recruitment can do anything about the whistle blowing? [00:28:15] Speaker 04: So that is a very important, very good question. [00:28:19] Speaker 04: So Dr. Smith was not called as a witness by the agency. [00:28:23] Speaker 04: The agency had an opportunity to incorporate her testimony in a previous hearing, but on three occasions decided that they were not going to... Is there any affirmative evidence that any of the decision makers with respect to the re-recruitment knew about the whistleblowing? [00:28:37] Speaker 04: There's no affirmative evidence in the record that she did not. [00:28:41] Speaker 05: Did you not have an opportunity to develop affirmative evidence on that point? [00:28:45] Speaker 04: She was not a witness. [00:28:46] Speaker 04: She was not called as a witness. [00:28:48] Speaker 04: And it was the agency's burden to do so. [00:28:52] Speaker 05: to rebut something that there was no evidence of? [00:28:55] Speaker 04: Absolutely, Your Honor. [00:28:56] Speaker 04: Once the burden shifts to the agency, once the whistleblower makes out a prima facie case, it is the agency's burden of proof to prove by clear and convincing evidence that the personnel decision that was made would have been done so. [00:29:11] Speaker 04: absent the whistleblower's protected disclosures. [00:29:15] Speaker 04: And the relevance of the rush re-recruitment was something the agency absolutely was aware of. [00:29:20] Speaker 04: And if they wanted to produce evidence to show that it was not interconnected, it would have been their burden to do so. [00:29:30] Speaker 04: In regards to the third car factor, Judge Post. [00:29:33] Speaker 00: Counsel, your red light is on. [00:29:36] Speaker 00: I think your time is up. [00:29:38] Speaker 00: All right. [00:29:39] Speaker 00: We appreciate both arguments. [00:29:40] Speaker 00: The case is submitted. [00:29:41] Speaker 04: Thank you.