[00:00:00] Speaker 04:
Okay.

[00:00:00] Speaker 04:
Mr. Carter.

[00:00:03] Speaker 01:
I'd like to reserve five minutes.

[00:00:04] Speaker 01:
May it please the court.

[00:00:05] Speaker 01:
Adam Carter on behalf of the petitioner, Mark Sadler.

[00:00:11] Speaker 01:
Let me begin with the finding of continued insubordination, if I might.

[00:00:16] Speaker 01:
Whether in August of 2013, Mr. Sadler was being punished on his removal for the exact same thing as his four day suspension weeks earlier.

[00:00:27] Speaker 01:
When Mr. Sadler is back from his suspension,

[00:00:30] Speaker 01:
He's asked by his boss, Mr. Stringham, for his status with respect to the tasking that was the subject of the prior suspension.

[00:00:38] Speaker 01:
And my client's accurate, prompt response of, quote, no change is not a refusal of anything.

[00:00:47] Speaker 01:
It's just a response to Mr. Stringham's email.

[00:00:51] Speaker 01:
What's the status?

[00:00:52] Speaker 01:
He says no change.

[00:00:53] Speaker 01:
It's not separate or new or a distinct order.

[00:00:56] Speaker 04:
Well, it's a continuation of refusal to perform the work, right?

[00:01:01] Speaker 01:
But Your Honor, contrast that with this court's affirmance in Bowen, where there's use the government credit card for this charge.

[00:01:09] Speaker 01:
The guy doesn't do it.

[00:01:10] Speaker 01:
And then use the government credit card for a different charge, and the guy doesn't do it.

[00:01:15] Speaker 01:
That's different.

[00:01:16] Speaker 01:
Here, there's a problem with the prior order that has not been resolved.

[00:01:23] Speaker 01:
And the question to my client is, what's the status?

[00:01:30] Speaker 01:
And my client says, no change.

[00:01:32] Speaker 01:
So this finding of continued insubordination is in contrast to this court's holdings in Nguyen and others.

[00:01:48] Speaker 01:
The notice for removal says,

[00:01:53] Speaker 01:
that my client stated there was no change in his assigned task status.

[00:01:59] Speaker 01:
He does say that he was just answering that question.

[00:02:03] Speaker 01:
But then it goes on to say, which indicates a continued refusal to comply with my directive, there was no reassertion of the directive.

[00:02:12] Speaker 01:
There was no clarification of the directive.

[00:02:16] Speaker 01:
There was no new directive.

[00:02:19] Speaker 01:
So that's the point that I'd like to

[00:02:21] Speaker 01:
have this court focused on.

[00:02:23] Speaker 02:
Do you think he misunderstood when they kept asking him, are you doing any work on this project, that they wanted him to keep doing work on the project?

[00:02:30] Speaker 01:
No, I don't think it's a misunderstanding.

[00:02:32] Speaker 01:
I think it's simply, I have for eight months now been saying that I'm not clear on what it is that I am to do.

[00:02:42] Speaker 02:
And they keep going back and telling him you need to do this, and he doesn't do it.

[00:02:46] Speaker 01:
Yes, but he is doing that because he's refusing to do what he thinks is possibly illegal.

[00:02:54] Speaker 01:
And so when he's seeking clarification, his boss, Mr. Stringham, says, you are justified in doing that, but then they never answer him.

[00:03:05] Speaker 01:
And so our argument on this point is that he ought not to be removed from federal service.

[00:03:11] Speaker 01:
He's had a distinguished career, removed from federal service,

[00:03:14] Speaker 01:
because there wasn't a separate order in this case.

[00:03:19] Speaker 03:
And assuming- Can we go back just a second to the no change point, which is you lead your argument with so you feel that it's quite important.

[00:03:31] Speaker 03:
What's our standard of review?

[00:03:34] Speaker 03:
What test do we use to decide whether no change

[00:03:39] Speaker 03:
was an indication of a continuing insubordination or not?

[00:03:43] Speaker 01:
Well, I lead with it because it's de novo, as is our second and third arguments, our de novo review.

[00:03:49] Speaker 03:
Why is this de novo?

[00:03:51] Speaker 01:
I'm saying the standard of review of this court is it's de novo because it's being done as a matter of law.

[00:03:58] Speaker 01:
That the MSPB, this is car factor one, the MSPB found that

[00:04:06] Speaker 01:
my client, or rather that the army had proved by clear and convincing evidence on car factor one, I'm making the argument that that's not the case.

[00:04:15] Speaker 02:
You think we have to know by review of that?

[00:04:18] Speaker 01:
Yes.

[00:04:19] Speaker 02:
What authority do you have for that?

[00:04:20] Speaker 02:
Those are factual findings.

[00:04:24] Speaker 02:
Whether the agency met its burden by clear and convincing evidence as a factual finding, we review that for substantial evidence.

[00:04:32] Speaker 01:
You do review it for substantial evidence.

[00:04:34] Speaker 01:
I'm making the point that

[00:04:36] Speaker 01:
that whether or not this is continued in subordination or not, whether or not it's a lawful order, those are legal determinations that the court can do by de novo review.

[00:04:48] Speaker 01:
And I cite those cases in my papers.

[00:04:53] Speaker 01:
The third issue.

[00:04:56] Speaker 01:
I beg your pardon?

[00:04:57] Speaker 03:
De novo review of this particular issue.

[00:05:00] Speaker 01:
De novo review of this particular issue, whether it's continued in subordination or not.

[00:05:05] Speaker 03:
And just help me out in your brief where the cases are cited.

[00:05:12] Speaker 01:
I'll find that at the break and come back and answer your honor's question.

[00:05:20] Speaker 01:
You don't know in your own brief where you cited the argument you're making to us?

[00:05:24] Speaker 01:
I'm just saying, your honor, I could take the time now to find it.

[00:05:26] Speaker 01:
I don't have it at my fingertips.

[00:05:30] Speaker 01:
It starts on page.

[00:05:35] Speaker 01:
page 27 of our brief.

[00:05:57] Speaker 01:
I'll find it within that section in a moment.

[00:06:03] Speaker 01:
Let me move, in the interest of time, to the other issue, which I also believe is de novo review, which is whether or not Mr. Sadler's March 2013 complaint to the OSC is protected activity under the WPA, because he's complaining about his boss changing his duties down to one duty.

[00:06:25] Speaker 01:
And he complains to the head of Dudway that this is

[00:06:33] Speaker 01:
This is taking him off of what was a 2009 DTC policy directive that is a rule of regulation for purposes of the WPA.

[00:06:45] Speaker 01:
Our argument is that the language of- What directive?

[00:06:48] Speaker 01:
Sorry?

[00:06:49] Speaker 04:
What directive are you talking about?

[00:06:50] Speaker 01:
This is the directive that is the 2009 policy directive that made Mr. Sadler's job come to be.

[00:07:01] Speaker 01:
At at Dugway to do times.

[00:07:04] Speaker 01:
I was telling him to do this work contrary to that policy No, the the new order from mr. Stringham in the fall of 2012 was having him do Come up with a testing plan to work with contractors that was very very different than Than his than his job duty.

[00:07:24] Speaker 04:
It's illegal because it's contrary the job description is that there is

[00:07:29] Speaker 01:
It's a fundamental change in his job description, which Mr. Stringham did not have the authority to change by fiat to say, you must work with the contractors to test this software when his job description was to manage the software testing and says nothing about working with or overseeing contractors.

[00:07:59] Speaker 02:
What specifically prohibits a supervisor from reassigning an employee duties if they think that their work needs to be done differently, if their old work is no longer necessary?

[00:08:14] Speaker 01:
Well, first of all, a supervisor has the ability to change job duties and job description, but that has to be done, you have to go through channels to change those things.

[00:08:27] Speaker 02:
Where does it say that?

[00:08:29] Speaker 02:
Where does it say it is prohibited from assigning an employee duties that are not in their job description without formally changing the job description?

[00:08:42] Speaker 01:
I concede that this job description does say, and other duties as assigned.

[00:08:48] Speaker 02:
Of course it does, because they all do.

[00:08:50] Speaker 02:
So why is that an illegal order?

[00:08:52] Speaker 01:
No.

[00:08:53] Speaker 01:
Here's what's illegal.

[00:08:53] Speaker 01:
What's illegal is paring down the guy's job to only do one thing, and do one thing that is already being done by the country.

[00:09:03] Speaker 02:
Can you move to this filiation argument?

[00:09:06] Speaker 02:
Because that seems like the only place where you have any real argument on this case.

[00:09:10] Speaker 01:
I'm happy to move there.

[00:09:12] Speaker 01:
The standard of review there is abuse of discretion.

[00:09:15] Speaker 01:
Mr. Sadler should prevail on that, because

[00:09:18] Speaker 01:
The timeline is so clear.

[00:09:21] Speaker 01:
The Army was required to preserve evidence.

[00:09:27] Speaker 01:
They knew about Mr. Sadler's complaint in the summer of 2013.

[00:09:31] Speaker 01:
He makes his appeal to the MSPB.

[00:09:35] Speaker 01:
He gives them a document request in July of 2013.

[00:09:37] Speaker 01:
He's then suspended in August of 2013.

[00:09:41] Speaker 01:
He appeals that, brings a new OSC complaint.

[00:09:44] Speaker 01:
So it's very clear that all the decision makers here

[00:09:47] Speaker 01:
Summer of 2013, know that they are in litigation.

[00:09:52] Speaker 03:
Mr. Carter, I'm looking at what I believe was the first whistleblower complaint.

[00:09:57] Speaker 03:
Do you have the record here?

[00:10:00] Speaker 01:
It's March of 2013.

[00:10:00] Speaker 03:
Now, do you have the record of page 2102?

[00:10:05] Speaker 01:
Yes, I'm there.

[00:10:07] Speaker 01:
Yes, sir.

[00:10:08] Speaker 03:
So this talk about being given something contrary to his job description, I don't see that.

[00:10:16] Speaker 03:
complaint anywhere in the first disclosure.

[00:10:19] Speaker 03:
Can you point that out to me?

[00:10:21] Speaker 01:
Oh, what I was referring to is his email to Colonel Estes, which is the patron.

[00:10:28] Speaker 03:
When we try to decide whether or not the first complaint satisfies the legal test for a whistleblower complaint, right?

[00:10:35] Speaker 03:
It's a de novo review, and we look at the document, right?

[00:10:38] Speaker 01:
Yes, and that would be the

[00:10:40] Speaker 01:
email that you would look at would be page 1124.

[00:10:42] Speaker 03:
The document is the complaint he lodged, correct?

[00:10:47] Speaker 01:
To the OSC?

[00:10:48] Speaker 01:
Yes.

[00:10:49] Speaker 01:
That is, he did that pro se, your honor, but... I'm just asking, isn't that the thing we're testing?

[00:10:55] Speaker 03:
That's the thing you... We're testing the document that he supplied to see whether that was sufficient to trigger that agency to go forward.

[00:11:02] Speaker 01:
That document is what he submitted to OSC.

[00:11:05] Speaker 01:
That is not the underlying complaint.

[00:11:07] Speaker 01:
His underlying complaint

[00:11:09] Speaker 01:
is to Colonel Estes, which is at Page.

[00:11:12] Speaker 03:
Well, I understand what you're saying, but I thought that when I was, maybe I'm wrong, I thought that my way of judging to know, though, whether your client's first complaint satisfies the test, I look at the complaint.

[00:11:22] Speaker 03:
I don't look at some mail, something he did before.

[00:11:26] Speaker 03:
It's what did he put in the complaint.

[00:11:27] Speaker 01:
I think you and I are getting caught up on the semantics of his complaint to OSC is not his underlying complaint.

[00:11:36] Speaker 01:
It's his statement of what he complained about to his boss.

[00:11:42] Speaker 01:
What he complained about to his third level boss, Colonel Estes, appears at page 1124 to 1135 of the record.

[00:11:51] Speaker 01:
That's the underlying complaint.

[00:11:53] Speaker 01:
I'd like to reserve the rest of my time, but come back to Judge Hughes' question about sanctions.

[00:11:59] Speaker 01:
I believe that it is the timeline, the very, very clear timeline, that showed that the

[00:12:05] Speaker 01:
administrative judge here abused his discretion in not finding there to be a culpable state of mind, at least negligence that would have given an adverse inference that would have changed the result here.

[00:12:21] Speaker 04:
Okay, we'll save the rest of your time.

[00:12:25] Speaker 04:
Ms.

[00:12:25] Speaker 04:
Welch?

[00:12:28] Speaker 00:
Good afternoon, Your Honors, and may it please the Court.

[00:12:31] Speaker 04:
I wanted to start specifically on the... On the spoliation question, in Kirkendall, we applied a standard where you could have spoliation sanctions as a result of negligence.

[00:12:44] Speaker 04:
The new federal rule doesn't allow that.

[00:12:47] Speaker 04:
So he seems to be arguing that we have to judge this under the Kirkendall standard.

[00:12:54] Speaker 04:
And what's the answer to that question?

[00:12:57] Speaker 00:
Your Honor, we don't have to judge this under the Kirkendall standard because negligence and Kirkendall negligence can be a basis for adverse inference.

[00:13:04] Speaker 00:
Kirkendall doesn't lay out a bright line rule saying any time negligence occurs, an adverse inference has to be drawn.

[00:13:10] Speaker 00:
What the issue is here is Mr. Souther is essentially wrong.

[00:13:14] Speaker 04:
But I don't read the board here as saying that there was no negligence.

[00:13:18] Speaker 00:
Oh, no.

[00:13:19] Speaker 00:
The board did indeed find there was negligence.

[00:13:21] Speaker 04:
The board found there was negligence.

[00:13:23] Speaker 00:
Yeah, the board found that the Army failed to, that there was a duty to preserve, and the Army failed.

[00:13:30] Speaker 04:
OK, so under the Kirkendall standard, why isn't that ground for a spoilations sanction?

[00:13:36] Speaker 00:
Because it's not a per se test.

[00:13:40] Speaker 00:
Just because there was negligence found, it doesn't mean that it's an adverse sanction for the negligence required.

[00:13:46] Speaker 00:
Because this is a highly discretionary decision that the administrative judge made, and the administrative judge looked at all the facts and the evidence

[00:13:53] Speaker 00:
And the administrative judge considered, in fact, the Army did proceed incorrectly in deleting this PST file.

[00:14:00] Speaker 00:
But it determined after looking at all of the evidence and all the argument, including hearing in which the subject of the deleted emails, Colonel Estes, was able to testify, the administrative judge looked at all that information and found that there was no reason to sanction specifically because it was part of a business practice.

[00:14:22] Speaker 02:
I find that AJ's decision confusing and fuzzy, but is your point that the AJ found that it was negligent of the agency not to maintain these records because they were on notice that they should have, but there was no culpable intent because of the business practice?

[00:14:42] Speaker 00:
Yes, Your Honor, yes.

[00:14:43] Speaker 04:
Well, that's a problem, because under Kirkendall,

[00:14:49] Speaker 04:
You can sanction people for negligence, but not under the new federal rule.

[00:14:56] Speaker 04:
So he seems to have been adopting the standard of the new federal rule over the standard of Kirkendall.

[00:15:04] Speaker 00:
I don't think that Kirkendall draws a bright line.

[00:15:07] Speaker 00:
I think that Kirkendall says that negligence can be a basis.

[00:15:10] Speaker 04:
I don't read it as drawing a bright line where if there is negligence... Yeah, but if he says, I'm not going to find

[00:15:19] Speaker 04:
sanctions here because I conclude that there was no culpable conduct and maybe he's not applying the right standard.

[00:15:30] Speaker 04:
What exactly did he say?

[00:15:32] Speaker 00:
Your Honor, what exactly the judge said was he did not, he relied on the new rule 37

[00:15:41] Speaker 00:
But he didn't use it as a binding rule.

[00:15:43] Speaker 00:
He just said it was instructive.

[00:15:44] Speaker 02:
That was on the rehearing part, right?

[00:15:46] Speaker 00:
Yes, Your Honor.

[00:15:47] Speaker 00:
That was on reconsideration at pages 21 to 23 of the packet.

[00:15:51] Speaker 02:
What did he say in the original?

[00:15:53] Speaker 00:
In the original decision, he denied the motion specifically because of the fact that the regular business practice weakened the infrared, that there was a

[00:16:02] Speaker 00:
The file was destroyed knowingly or negligently.

[00:16:04] Speaker 02:
I mean, the problem here is the board's precedent that we confirmed in Kirkendall that says negligence alone is sufficient.

[00:16:12] Speaker 02:
He seems to have both found negligence but then not found negligence at the same time.

[00:16:18] Speaker 02:
And how do we know which one he was relying on?

[00:16:22] Speaker 02:
If he said, I can't do an adverse inference even though there's negligence, then that's inconsistent with Kirkendall, isn't it?

[00:16:31] Speaker 02:
I think that... Even if we assume Kirkendall doesn't... I mean, I don't think... I wouldn't read Kirkendall as automatically requiring an adverse inference in every instance of negligence.

[00:16:44] Speaker 02:
Maybe that is one way to read it, but even if that's not the way to read it, that there's still some discretion, he's still misreading Kirkendall if he said negligence is insufficient to support an adverse inference.

[00:17:00] Speaker 04:
Now, where does he say, under the Kirkendall standard, I still wouldn't impose sanctions?

[00:17:06] Speaker 00:
I don't think he said specifically that.

[00:17:14] Speaker 00:
I might have misspoken earlier in terms of the regular business practice weakened the inference that the file was destroyed knowingly or negligently.

[00:17:22] Speaker 00:
So while he did reprimand the Army for the deletion, I don't believe he specifically found negligence.

[00:17:31] Speaker 02:
But I think he did actually use those words to describe the conduct.

[00:17:34] Speaker 02:
This is the problem.

[00:17:35] Speaker 02:
It's a very unclear decision where he finds both negligence for the destruction of the PST files.

[00:17:44] Speaker 02:
But on the other hand, because it's a business practice, it's somehow not negligent.

[00:17:49] Speaker 02:
Those two findings are inconsistent with each other, aren't they?

[00:17:53] Speaker 00:
I don't believe they're inconsistent, Your Honor.

[00:17:57] Speaker 00:
I believe that the judge,

[00:18:00] Speaker 00:
didn't just consider the fact that it was a business practice, but the judge also considered the hearing and the testimony that was put forth by Colonel Estes and what he heard and the fact that Mr. Sadler was able to cross-examine and talk to the players in this case and hear what they had to say about what the contents was of this PST file.

[00:18:25] Speaker 00:
So not only was it based on this business, this inference related to business records, but he was able to, the administrative judge was able to test as well the facts of the case and test whether or not it seemed like the circumstances implied something was done knowingly.

[00:18:42] Speaker 04:
Could you show us the pages of which he makes these rulings both of the original decision and the reconsideration?

[00:18:52] Speaker 00:
So the original decision is at 2439 in the appendix.

[00:18:58] Speaker 00:
That's the administrative order for the sanction.

[00:19:03] Speaker 03:
2439?

[00:19:04] Speaker 00:
2439.

[00:19:04] Speaker 03:
2439.

[00:19:08] Speaker 03:
That's denying the motion for sanctions.

[00:19:14] Speaker 00:
Yes, that's the original order.

[00:19:16] Speaker 03:
Any sides?

[00:19:24] Speaker 00:
up up up up up up up up up up up up up up up up up up

[00:19:54] Speaker 00:
standards in the case resolution.

[00:19:57] Speaker 00:
And here, the judge found that the PSD file, well, the agency was obligated to preserve, but because there was this standard operating procedure of deletion.

[00:20:10] Speaker 00:
And the board specifically had a discretion to fashion appropriate sanctions.

[00:20:14] Speaker 00:
I think that's where this lies here is the board had discretion to sanction.

[00:20:18] Speaker 00:
There's nothing in the law.

[00:20:20] Speaker 00:
There's nothing in the case law.

[00:20:21] Speaker 00:
There's nothing in Kirkendall.

[00:20:22] Speaker 03:
There's a clear recognition of Kirkendall on 2440, right?

[00:20:26] Speaker 00:
Yes.

[00:20:27] Speaker 03:
And that's really all there is to that, right?

[00:20:30] Speaker 00:
Yes, Your Honor.

[00:20:31] Speaker 03:
Does he make a finding here that the agency was negligent?

[00:20:35] Speaker 00:
It breached its duty.

[00:20:37] Speaker 00:
Excuse me?

[00:20:38] Speaker 00:
Your Honor, the administrative judge says on 2441 that the agency breached its duty after failing to take standard precautions.

[00:20:45] Speaker 00:
However, in the very next paragraph, the judge said that because it was part of a regular business practice, it weakened the inference that the evidence was destroyed knowingly or negligently.

[00:20:55] Speaker 02:
So is your view that the conclusion that it breached its duty is not a finding of negligence.

[00:21:01] Speaker 02:
It's just a recognition that it breached its duty.

[00:21:04] Speaker 02:
And then the next paragraph says, but this doesn't rise to the level of negligence, even though it's worded very weakly about weakening an inference that

[00:21:15] Speaker 02:
it was destroyed knowingly.

[00:21:16] Speaker 00:
Yes, Your Honor.

[00:21:17] Speaker 00:
As I said, I did misspeak earlier about negligence.

[00:21:21] Speaker 04:
But there's a problem here.

[00:21:22] Speaker 04:
Look at 2440.

[00:21:23] Speaker 04:
He says, the party seeking adverse inference for spoliation must establish, two, the record was destroyed with a culpable state of mind.

[00:21:34] Speaker 04:
Right?

[00:21:35] Speaker 00:
Yes.

[00:21:36] Speaker 03:
With a culpable state of mind.

[00:21:47] Speaker 04:
That's not right, right?

[00:21:48] Speaker 00:
Well, that's heading B, then.

[00:21:50] Speaker 02:
Why are we relying on Sixth Circuit law in this case?

[00:21:54] Speaker 02:
I know you didn't do this below, but the Sixth Circuit law requires a culpable state of mind, as do almost every other circuit, for spoliation, which is also, I think, supported by the federal rules.

[00:22:05] Speaker 02:
But we're bound by Kirkendall, which suggests that, and not Kirkendall, but by the board's adoption of a rule that allows negligence.

[00:22:16] Speaker 00:
I think that I would again point to the fact that it can justify an adverse inference in Kirkendall.

[00:22:23] Speaker 00:
It's not requires an adverse inference.

[00:22:26] Speaker 02:
I think it's very hard to read this decision as an indication that the administrative judge actually understands the standard to be applied in this case.

[00:22:36] Speaker 02:
Because he's quoting Geven, which is not the law for our circuit, and the couple will say to mind, which maybe should be the rule,

[00:22:45] Speaker 02:
and Kirkendall, which is binding on us, and that says negligence is enough, and then has two paragraphs that suggest, well, there's a breach of a duty, which has to be read as at least negligent, but then it's not negligent.

[00:23:03] Speaker 02:
Do you think the reconsideration decision helps clear this up any?

[00:23:07] Speaker 02:
I didn't read it as much better.

[00:23:09] Speaker 00:
The reconsideration decision

[00:23:14] Speaker 02:
broadens, it doesn't just focus on... It's the one that looks at the federal rules and says this doesn't confirm us, but the problem is the federal rules caution, I mean, I think assume at least gross negligence or some culpable state of mind.

[00:23:33] Speaker 00:
Because the federal rule 37 rejects an adverse inference just based on negligence and requires proportionality.

[00:23:41] Speaker 00:
And I believe that the

[00:23:43] Speaker 00:
In the reconsideration decision, the judge... Where is that?

[00:23:47] Speaker 00:
That is at page 21 and 23 of the appendix, which will be volume 1.

[00:23:51] Speaker 03:
That's the reconsideration decision?

[00:23:53] Speaker 00:
Yes.

[00:23:54] Speaker 00:
That's the initial decision, and then the reconsideration decision just affirms the initial decision.

[00:24:01] Speaker 00:
What page?

[00:24:02] Speaker 00:
The page is 21 for the initial decision.

[00:24:04] Speaker 03:
21 on your record?

[00:24:05] Speaker 00:
Yes.

[00:24:08] Speaker 02:
I mean, the problem here is that the appellate was arguing the wrong wall tooth,

[00:24:12] Speaker 02:
because it notes that he cited Second Circuit law and Sixth Circuit law again, which does require a couple of state of mind.

[00:24:23] Speaker 02:
So I don't necessarily blame the AJ for all of this confusion because there's a bunch of, but it's very unclear as to whether

[00:24:31] Speaker 02:
the AJ was applying the Kirkendall standard.

[00:24:33] Speaker 00:
Well, the AJ does cite MSPB rulings.

[00:24:38] Speaker 00:
It's their pre-Kirkendall, but the agency is relying on MSPB precedent.

[00:24:43] Speaker 00:
So the AJ, when they say on page 22, I do not find the appellant's arguments persuasive and declined exercise discretion, there's a citation to Hidalgo and Nafidad.

[00:24:53] Speaker 00:
And then next, relying on the federal rule of civil procedure 37.

[00:24:59] Speaker 02:
Do you read Kirkendall as us saying that negligence is sufficient or that we're just saying that the board found it in that other case and we're going to hold them to it?

[00:25:09] Speaker 00:
Yes.

[00:25:10] Speaker 02:
Does that mean the board could adopt a new rule that would be consistent with almost every other circuit and require at least gross negligence or culpable state of mind and still be consistent with Kirkendall?

[00:25:24] Speaker 00:
I believe that

[00:25:26] Speaker 02:
in terms of what they could adopt uh... well kirkendall again i i keep coming back to kirkendall doesn't say that negligence i understand but but it also specifically relies on the board's case yes i don't think it denovo says that negligence

[00:25:41] Speaker 02:
is always enough to automatically draw an adverse inference.

[00:25:46] Speaker 02:
It just says the board's adopted this rule, and they are bound by it if they continue to apply it.

[00:25:51] Speaker 02:
But does the fact that we affirm that rule mean that they're prohibited from reassessing that rule if they decide they'd rather be consistent with almost every other circuit?

[00:26:02] Speaker 00:
I don't see how that would prohibit them.

[00:26:04] Speaker 00:
I don't think Kirkendall would prohibit them from deciding to change the rule, Your Honor.

[00:26:08] Speaker 04:
Who makes the rules?

[00:26:09] Speaker 04:
Do they make this rule, or is it up to us to determine what the appropriate rule is?

[00:26:13] Speaker 00:
No, it would be up to Your Honor in this court.

[00:26:16] Speaker 02:
So if we determine that

[00:26:19] Speaker 02:
the better, but we didn't actually, let's just assume that my reading of Kirkendall is right.

[00:26:25] Speaker 02:
There may be disagreement about this, but that we didn't ourselves say negligence is sufficient, but just that the board had said we were going to follow the board's practice there in that specific case.

[00:26:39] Speaker 02:
Are we free to say that as a matter of law, negligence isn't enough and bring it in line with the rest of the circuits in this case?

[00:26:47] Speaker 00:
Yes, your honor.

[00:26:49] Speaker 00:
we have to go out on top of her car and all to do that no because at the way at least I understand you and I are both reading her and all in this instance is that it's at the can it's not a must so I don't think it here in in this case it was because her adult and reach the question of what will you want to adopt right and because her condolence reason that would be another reason you have would have to go on mark because you wouldn't be over willing for and all because it didn't reach

[00:27:17] Speaker 00:
specifically the decision.

[00:27:19] Speaker 00:
It didn't reach the issue.

[00:27:24] Speaker 04:
Okay, I think we're out of time.

[00:27:26] Speaker 04:
Thank you, Ms.

[00:27:27] Speaker 04:
Felt.

[00:27:28] Speaker 04:
Mr. Carter, you have a little time for rebuttal here.

[00:27:36] Speaker 01:
I've been practicing law long enough to know I don't want to talk Your Honor out of anything, but there was one fact that I thought might help Your Honor's decision on this, and that is that, and I'm not

[00:27:47] Speaker 01:
in the decision on sanctions, which is in the appendix at page 2441.

[00:27:57] Speaker 01:
Note that there were two things that were- In the reconsideration decision?

[00:28:02] Speaker 01:
Sorry, not the reconsideration, the original order on sanctions.

[00:28:07] Speaker 01:
He said that there was a PST file on the laptop.

[00:28:10] Speaker 01:
He said also, probably on an external drive.

[00:28:16] Speaker 01:
So there's two things of destruction and that again suggests to me that he's finding that there's at least negligence here.

[00:28:29] Speaker 02:
Colonel Estes about any of these emails when you crossed him?

[00:28:33] Speaker 01:
Your Honor, I wasn't under counsel bill.

[00:28:35] Speaker 01:
Well, I know.

[00:28:35] Speaker 02:
But you're bound by everything that happened below.

[00:28:38] Speaker 02:
Of course.

[00:28:39] Speaker 02:
Why didn't you try to preserve a record about whether these emails were relevant or not?

[00:28:44] Speaker 02:
I mean, you have the decision maker.

[00:28:46] Speaker 02:
And I think you had a bunch of other people that these emails were sent to in front of the board so you could have probed

[00:28:54] Speaker 02:
The basis, what they thought these emails said and got that information another potentially relevant way.

[00:29:01] Speaker 01:
If you're honor, please, the decision on this came out before the hearing.

[00:29:08] Speaker 01:
And so the judge had already ruled.

[00:29:10] Speaker 01:
Again, I wasn't trial counsel.

[00:29:12] Speaker 02:
So what?

[00:29:13] Speaker 02:
I mean, make your record about and ask for reconsideration again or appeal it.

[00:29:18] Speaker 01:
Reconsideration a second time?

[00:29:19] Speaker 01:
I usually get

[00:29:22] Speaker 02:
castigated by judges when once i make a record for appeal if you ask this guy what was in the emails and he's evasive or seems to be lying then the board's going to note that and they might change their mind or you might have a record for us this would be a much easier case for you if you tried to do that or if he wasn't available to testify because

[00:29:46] Speaker 02:
The fact that he's deleted emails, a bunch of emails, which seems like automatically happens when he moves on to a new command, doesn't necessarily say he was intentionally destroying emails.

[00:29:59] Speaker 02:
You don't know what was in them.

[00:30:00] Speaker 01:
Well, that's right.

[00:30:01] Speaker 01:
But what we do know is that there's a massive gap from January of 2013 to July of 2013

[00:30:10] Speaker 01:
that is belied by all of them in contrast to what Dr. Green maintained and had hundreds of emails with respect to Sadler in his cash.

[00:30:20] Speaker 01:
So clearly, when in January of 2015- Did Dr. Green leave?

[00:30:26] Speaker 01:
Dr. Green was my client's prior supervisor.

[00:30:30] Speaker 01:
So his information came at the FOIA request.

[00:30:35] Speaker 01:
But the point is that all of the five decision makers in this case

[00:30:41] Speaker 01:
deal with Sadler, admit that they are dealing with Sadler, discussing Sadler.

[00:30:46] Speaker 01:
And there are 11 emails that don't shed any light on the rationale for why they're disciplining Sadler.

[00:30:55] Speaker 01:
So there's clearly a disruption.

[00:30:57] Speaker 04:
Please sit down.

[00:30:58] Speaker 04:
One more question.

[00:30:59] Speaker 04:
Did you or a prior counsel argue to the administrative judge that the Sixth Circuit was a Bevin's standard applies, the culpability standard applies?

[00:31:10] Speaker 04:
Or did counsel argue for the Kirkendall standard?

[00:31:15] Speaker 01:
I don't know the answer to that.

[00:31:16] Speaker 01:
But let me just say, I think the culpable state of mind line comes from the Southern District of New York, Zubu Lake, which is the seminal decision on the standard for spoliation.

[00:31:28] Speaker 01:
But the law has progressed since then.

[00:31:31] Speaker 01:
And the Sixth Circuit.

[00:31:34] Speaker 04:
But the question is what you argued, or what your counsel argued.

[00:31:38] Speaker 02:
I mean, the board says in its decision that you argued Bevin to them.

[00:31:43] Speaker 02:
Is there any reason to think that that's incorrect?

[00:31:46] Speaker 01:
No.

[00:31:47] Speaker 01:
But the gloss that was being used was Bevin's was responding on Juice Burns, and Juice Burns was a situation where they didn't even know about the underlying litigation.

[00:31:59] Speaker 01:
So we distinguish that in our brief, I think, rightly.

[00:32:04] Speaker 01:
OK.

[00:32:04] Speaker 04:
Thank you, Your Honor.

[00:32:05] Speaker 04:
We're out of time.

[00:32:05] Speaker 04:
Thank you.