[00:00:00] Speaker 01:
and Farrington versus the Department of Transportation, 2023-1901.

[00:00:39] Speaker 01:
Mr. Devine, we're ready when you are.

[00:00:52] Speaker 02:
Thank you, sir.

[00:00:52] Speaker 02:
May I please the court?

[00:00:53] Speaker 02:
My name is Tom Devine.

[00:00:54] Speaker 02:
I'm giving the oral argument for petitioner Farrington.

[00:00:59] Speaker 02:
In 2012, as clarified in 2017,

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By statute, Congress overturned civil service and constitutional case law denying anti-retaliation rights for duty speech.

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But there was a qualifier for a narrow group of employees whose normal duties included a principal job function to regularly investigate wrongdoing.

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They would have a slightly higher burden of proof.

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They would have to prove an ultimate conclusion of reprisal rather than just a causal link to protected speech.

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In this case, the board translated the narrow scope of duty speech to cover virtually all communications permissible in a job description.

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Or that means basically anything which is relevant to their job, or pretty much any topic that they wanted to blow the whistle about.

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And for this comprehensive universe, the board then translated the slightly increased burden

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to not require application of the whistleblower protections, that's statutory burden approved structure for contributing factor analysis and then the affirmative defense.

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This decision cannot coincide with the statute as enacted by Congress.

[00:02:18] Speaker 03:
I mean, I know there were a lot of arguments made here, but I thought at least one alternative the board rested on was simply that this disclosure that was alleged

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didn't come under the whistleblower protected disclosures, 2302.

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You're adding a little heart appearing.

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I thought one of the bases for the, at least one of the bases for the MSPB decision was that this was not a protected disclosure covered by 2302, which didn't have anything necessarily to do with the more recent amendments to the statute.

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In its final decision, the board presumed that she had engaged in protected speech and said that even if she had, she hadn't met her statutory burden to prove reprisal.

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And our concern is that they discarded the statutory structure in order to make that conclusion.

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But if they just relied on 2302 without trying to rest on any of the new amendments or what existed previously, aren't we just looking here at whether or not this was a protected disclosure?

[00:03:33] Speaker 03:
I'm sorry, Your Honor.

[00:03:34] Speaker 03:
Aren't we looking at simply whether or not hers was a protected disclosure under 2302, just like any employee forget whether it was her normal duties or whatever, just looking at whether it was a protected disclosure?

[00:03:47] Speaker 02:
We believe absolutely that she meant protected disclosures and contested that intensively.

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So what was the protected disclosure?

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I was a little confused because it seems in your brief

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You relied that you weren't disputing the conclusions with respect to the May 2003 report, that you're talking exclusively about the disclosures to Mr. George on May 22, 2003.

[00:04:19] Speaker 02:
We think her protective disclosures were the challenges to the division manager, that the corrective action was sustaining unsafe conditions.

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And then it was her May 3rd report and then all the subsequent discussions and interviews after those confrontations and turning in the report with her chain of command and with the National Transportation Safety Board.

[00:04:45] Speaker 01:
Well, the board found there were no violations of the law.

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Procedures were in compliance with regulation.

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And so the board found she had no reasonable belief, no basis objectively for a reasonable belief that she was covered by the whistleblower law.

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Well, we think the objective basis for finding that she was covered by the whistleblower law is how the audiences responded to her concerns.

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The division manager said that we'll appoint

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an independent team of specialists to do a review of your concerns.

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They wouldn't do that if there weren't a reasonable belief for her concerns about ongoing safety hazards.

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The National Transportation Safety Board investigated it in depth.

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They wouldn't have done that if there weren't a reasonable belief for her concerns.

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But we believe that issue really isn't before the court right now that the board did presume

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that she would have a reasonable belief for protected speech, and said that even then she hadn't proved reprisal.

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And how they came to that conclusion is our concern, Your Honor.

[00:06:10] Speaker 01:
Wasn't she fired because she was unavailable for work and was disruptive?

[00:06:17] Speaker 01:
I'm sorry, sir.

[00:06:19] Speaker 01:
Wasn't she fired because she was unavailable for work and was disruptive?

[00:06:25] Speaker 02:
She was not fired for being disruptive, although that was a change in...

[00:06:31] Speaker 02:
uh... explains for the change in her duties of the agency said they'd like her to come back she was fired on a pretext uh... they were the agency said that they had to fill her position immediately and she was recovering uh... she was on therapy and out of medical leave well that's a little i i think you're that's a little

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not clear statement of the facts.

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They didn't say she had to file their position immediately.

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She left work in July of 2003, and she was absent at least until August 11th, where there was a recommendation made in 2004.

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That's over a year.

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She had been gone over a year.

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And it was then the government said, well, you're continued unavailability.

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We're removing you based on your continued unavailability for full-time duty.

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It wasn't right away.

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It was after she had been absent for a year.

[00:07:26] Speaker 02:
Oh, yes.

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We wouldn't balance that, Your Honor, but the government's reason.

[00:07:33] Speaker 03:
information in february her you know i don't want to talk about medical information but even in fact when she reported a situation in february was unclear when if ever she was going to return so the government having waited fourteen months or thirteen months then said hey we need this position bill we're removing you because it's not uh... you're not continued you don't have continued availability for full-time duty how is

[00:08:01] Speaker 03:
Given the passage of time, how are you linking that to necessarily being a reprisal for something that had happened more than a year before?

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When the government let Ms.

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Farrington go, they said, we can't wait any longer.

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And then they waited for another year.

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So we think that that raises issues before they filled her position.

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So we think that raises issues of pretext.

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But that's not really the issue that's before the court that we're challenging for error.

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We're saying that the definition of duty speech was comprehensive when it's only allowed to be by statute for a very narrow class of people.

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And that even with the duty speech case, you need to consider and apply the whistleblower protection that statutory burdens approve.

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Contributing factor analysis, which is basically for relevance, and then to find if there's retaliatory intent on the affirmative defense.

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That's what the board presented to the court.

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They presumed protective speech.

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They didn't apply the statutory standards that you're flushing out with specific facts before concluding those reprisal.

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And just because it's a duty speech case doesn't mean that you can skip contributing factor in the affirmative defense of independent justification.

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But counsel, even aside from what she was hired to do, isn't reprisal required anyway?

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You have to prove reprisal for protected acts.

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And she failed to prove reprisal.

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She didn't have to prove reprisal for her burden of proof.

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That judgment is an ultimate conclusion, which comes after considering the agency's affirmative defense.

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The contributing factors standard doesn't include a requirement for causation.

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It doesn't include a requirement for retaliatory intent.

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It just basically says that any factor which has

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any impact that affects the decision in any way meets that burden.

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increased burden to prove reprisal instead of causation comes in the agency's affirmative defense, Your Honor.

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Instead of having to prove that their action was independent of whistleblowing, they only have to prove that it was independent of reprisal.

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And that is a higher burden for the whistleblower to overcome, and it's a lesser burden for the agency.

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But that's the one that applies.

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In the agency, the board did not apply the clear and convincing evidence standard.

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The board concluded that the latches reason for ignoring it initially was not valid.

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They vacated the reason that the administrative judge didn't apply.

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But then they didn't do it either.

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You can't reach that ultimate conclusion of retaliation, of reprisal, without considering both halves of the statutory burdens of proof.

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And Congress was very clear.

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that they have a modest burden of proof for the employee.

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Because what they're looking for in the attentive statute is to require that the agency defend its actions on grounds that were independent of the whistleblower protection net.

[00:11:31] Speaker 02:
That analysis has not occurred here.

[00:11:34] Speaker 01:
You're into the time.

[00:11:35] Speaker 01:
You wanted to save for rebuttal?

[00:11:37] Speaker 01:
Yes, sir.

[00:11:38] Speaker 01:
Continue or save it?

[00:11:40] Speaker 02:
I'd like to save the rest of it.

[00:11:41] Speaker 01:
Thank you.

[00:11:44] Speaker 01:
Ms.

[00:11:44] Speaker 01:
Tanton.

[00:11:52] Speaker 00:
Good morning.

[00:11:54] Speaker 00:
May it please the court?

[00:11:55] Speaker 00:
The court should affirm the board's decision denying corrective action sought by Ms.

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Farrington.

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The board properly found that Ms.

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Farrington made no disclosures protected by 5 U.S.C.

[00:12:04] Speaker 00:
2302b8, since she could not have reasonably believed she was disclosing a violation of law or a danger to public safety.

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Thus, there's no reason for the court to consider Ms.

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Farrington's arguments related to separate

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issues such as arguments related to duty, speech, arguments.

[00:12:22] Speaker 00:
That's what I was going to ask you.

[00:12:23] Speaker 00:
The board didn't.

[00:12:26] Speaker 03:
I mean, there were amendments made and there were changes made.

[00:12:29] Speaker 03:
But I thought the board was just saying, never mind.

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We're just going to go on a regular, not considering the normal course of duties or any other limitations.

[00:12:38] Speaker 03:
We're just going to go on the normal.

[00:12:40] Speaker 03:
Was this a protected disclosure?

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I understood the board to reach the issue of normal course of duties and the issue of principal job function and find that those higher

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burdens applied to Ms.

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Farrington.

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However, as an independent reason, the board concluded that these disclosures simply didn't fit the criteria for being protected.

[00:13:08] Speaker 03:
So there were two alternatives.

[00:13:10] Speaker 03:
Yes, that's our... Okay, and why weren't they turning to the second alternative so we can get rid of the new statutory changes?

[00:13:19] Speaker 03:
I'm a little confused because the disclosure they talked about in the appeal seems to have been this 2003 meeting with Mr. George, but your friend kind of persists in talking about all of the disclosures, so why were they all insufficient?

[00:13:37] Speaker 00:
why were they all not, the May 2003 report, which was both, it was disclosures one and two, and it was disclosed to Mr. Walker, who was the division manager for the Southern District, Southern Region Flight Standards District Office.

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Those, the board concluded that the report contained, it basically stated

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that, really only a brief and vague description, that she had discussed the past content of manuals and a possible violation of regulatory requirements, which was vaguely stated, but that she had worked with her supervisor, who was the acting principal operations inspector, and AirTran to correct the deficiencies, and that they had been corrected.

[00:14:32] Speaker 00:
In that case, no violation was existing at the time

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years later when she was writing this May 2003 report.

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The May 2003 report is an 11-page memo that a lot of it is simply describing her history with the FAA from years earlier.

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And therefore, the Whistleblower Protection Enforcement Act requires that an employee identify a specific law, rule, or regulation that she believes has been violated.

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Here, there's no identifiable violation

[00:15:02] Speaker 00:
And the court required that increase by the Department of Veterans Affairs in 2017.

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The vagueness makes this insufficient to be a protected disclosure.

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And in addition, in May 2003, when she met with Mr. George for the NTSB investigation, she told him that Airtran was in compliance with the federal aviation regulations as far as

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And that's stated in the NTSB report at appendix 126.

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The administrative judge found that the discussion of her statements in that NTSB report was the best indication of what she had told Mr. George at appendix 38.

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Therefore, that was the reason that the May 2003 report

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She could not have reasonably believed when she wrote it that there was a continuing violation of law.

[00:15:58] Speaker 03:
As far as reprisal goes, your friend, I didn't catch this, if it's in the briefs, that he seemed to be arguing that even though, yes, he agreed that she was essentially absent for 13 months before they took this action.

[00:16:12] Speaker 03:
But then he says, but it proves animus or it proves reprisal because

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They didn't then fill the position for another year.

[00:16:20] Speaker 03:
Is that in the record?

[00:16:21] Speaker 03:
And is there any discussion of that in the record?

[00:16:23] Speaker 00:
I'm not certain of that question, Your Honor, since I did not see it come up in the briefs.

[00:16:29] Speaker 03:
Well, that's why I was going to answer.

[00:16:30] Speaker 03:
So I didn't see it either.

[00:16:32] Speaker 03:
So you didn't?

[00:16:33] Speaker 03:
OK.

[00:16:34] Speaker 03:
Let me just say, I mean, we get a lot of old cases, particularly in the veterans space, because sometimes it goes back and forth in terms of the duty to assist.

[00:16:42] Speaker 03:
This all happened 20 years ago, 22 years ago.

[00:16:46] Speaker 03:
What on earth is going on here?

[00:16:50] Speaker 00:
Well, I'll say number one, after Ms.

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Farrington's removal in October 2004, she waited five years until, I believe it was in 2009, that she submitted an appeal to board.

[00:17:04] Speaker 00:
And it's not entirely clear why there was a delay of that sort, except that she had a conversation with the Office of Special Counsel.

[00:17:14] Speaker 00:
I believe.

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And so that sort of appears to have triggered her filing an appeal to the board.

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And then beginning in 2009, there was an administrative judge's decision in 2010.

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Then while I think her board appeal was being pursued, the Whistleblower Protection Enforcement Act was passed.

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And that led to, I think, a remand to the administrative judge to consider that effect.

[00:17:43] Speaker 00:
Yeah, after a hearing in 2013, I think there was a delay of three years until 2016 until there was a decision.

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Following that, I think that's kind of how we've ended up with this 20-year span of time.

[00:18:01] Speaker 00:
One of Ms.

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Farrington's other arguments is that there was inadequate funding for travel, resulting in a safety risk that she says she disclosed in the May 2003 report.

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However, the administrative judge found

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that this was not supported by the testimony, the evidence, because number one, she spent nearly two months in Atlanta in 2002, in June and September, observing and assisting AirTran with improving and redeveloping its initial flight attendant training program.

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And then after that time, prior to the May 2003 disclosures, the administrative judge made

[00:18:40] Speaker 00:
finding the fact that she could have flown to Atlanta at any time to inspect the flight attendant training by AirTran.

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It was only overnight trips that were limited due to agency budget issues.

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And even if the administrative judge wasn't correct in making those conclusions, the danger to safety that she alleged isn't sufficiently substantial and specific to warrant protection.

[00:19:05] Speaker 00:
Her allegation of danger is based on an assumption that

[00:19:08] Speaker 00:
the flight attendants weren't adequately trained in her absence.

[00:19:11] Speaker 00:
And that's much like chambers for the court's decision in which there was a disclosure of budget numbers.

[00:19:22] Speaker 00:
The court found that the budget necessarily limits the extent of protection of public health and safety, but that wasn't enough to show a disclosure of a danger to public safety.

[00:19:33] Speaker 00:
And overall, as we pointed out, we believe Mrs. Farrington waived her challenge to the board's conclusions as to the May 2003 report by raising no specific challenge to the Minister of Judges' conclusion that that report did not contain protected disclosures.

[00:19:53] Speaker 01:
Would you say the question of the retroactivity of the statute is irrelevant?

[00:20:01] Speaker 00:
I think it's irrelevant if the court concludes that the disclosures are not protected.

[00:20:09] Speaker 00:
If the court finds that the disclosures are not protected because they simply are not of the type where Ms.

[00:20:17] Speaker 00:
Farrington could have a reasonable belief that she was disclosing a violation of law or danger to public safety, then it is irrelevant.

[00:20:27] Speaker 00:
But if the court were to disagree with the board's conclusions,

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as to reasonable belief, then the question of retroactivity could come into play in determining whether Ms.

[00:20:39] Speaker 00:
Farrington showed reprisal.

[00:20:45] Speaker 01:
So your view is we don't need a reaching?

[00:20:47] Speaker 00:
Correct, correct, Your Honor, yes.

[00:20:53] Speaker 00:
The interview by Mark George, which is disclosure number three, during the interview, as we noted,

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Ms.

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Farrington stated in the NTSB report that she says AirTran is in compliance with the federal aviation regulations.

[00:21:08] Speaker 00:
So she can't have simultaneously believed that there was a violation of the regulations.

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So therefore, she could not have reasonably believed that AirTran was violating 14 CFR 121.417.

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And her conversation with Mr. Walker that's disclosure four is

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covered the same issues as that previous discussion with Mr. George, so it's protected for the same reasons.

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And one of the personnel actions that was alleged was found by the board not to be a personnel action under 5 U.S.C.

[00:21:44] Speaker 00:
1221 E.1.

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for which the board could provide corrective action.

[00:21:48] Speaker 00:
That's because it's

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It was the alleged threat of removing her.

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And the administrative judge credited the testimony of one of the people at the counseling session that he did not threaten her with removal.

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And the court would have to discredit his testimony and reweigh the evidence to find that the administrative judge erred in reaching that conclusion.

[00:22:19] Speaker 00:
With regard to the burden to show reprisal, I think Ms.

[00:22:23] Speaker 00:
Farrington's counsel has acknowledged that there is a burden on the petitioner to show reprisal.

[00:22:32] Speaker 00:
The argument that the clear and convincing burden on the agency to show that it would have taken an action regardless of whistleblowing is irrelevant to the question of reprisal raised in 2302 F2.

[00:22:49] Speaker 00:
Ms.

[00:22:50] Speaker 00:
Farrington did not demonstrate reprisal as the board concluded, and it doesn't matter whether the court looks at retroactivity or not.

[00:23:01] Speaker 00:
Even if the 2018 NDAA language applied, the administrative judge and board still properly found that her principal job function

[00:23:12] Speaker 00:
was as described in her position description.

[00:23:16] Speaker 00:
And therefore, she could not show that she was of the type of employee who did not have to show reprisal.

[00:23:27] Speaker 00:
And in fact, she did not show reprisal because the administrative judge found no evidence that the removal was taken in reprisal for any disclosures instead.

[00:23:39] Speaker 00:
She had been absent from work for 14 months with no projected return date.

[00:23:43] Speaker 00:
The deciding official stated that he wanted her to come back to work, but he needed a cabin safety inspector and needed to have someone working in that position.

[00:23:53] Speaker 00:
He wasn't aware of Disclosures 1, 2, and 4 in any event.

[00:23:58] Speaker 00:
And the counseling session, again, one of the members of the team at that counseling session was not aware of Disclosures

[00:24:12] Speaker 00:
one, two, three, or four, and there was evidence that the counseling session was intended to assist Ms.

[00:24:25] Speaker 00:
Farrington in

[00:24:26] Speaker 00:
interacting with AirTran.

[00:24:29] Speaker 00:
And as for the moratorium, again, Mr. Moyers had pointed out that he had discussed with her how she was coming across towards AirTran during her surveillance activities as early as 2002, before the disclosures.

[00:24:43] Speaker 00:
And she was resistant to treating

[00:24:47] Speaker 00:
the disclosure Airtran made to her as a voluntary disclosure of a violation rather than an investigation, which was a program that FAA was pursuing a more customer-oriented approach.

[00:25:03] Speaker 00:
So given number one, the board's conclusion that Ms.

[00:25:09] Speaker 00:
Farrington

[00:25:10] Speaker 00:
could not show that she reasonably believed she was disclosing a violation of law or a danger to public safety, and also for the reason that she had to but did not demonstrate reprisal for the disclosures.

[00:25:26] Speaker 00:
The court should affirm the decision of the board.

[00:25:30] Speaker 00:
The court has no further questions.

[00:25:32] Speaker 01:
Thank you, counsel.

[00:25:34] Speaker 01:
Mr. Devine has some more bottle time.

[00:25:45] Speaker 02:
Thank you, Your Honor.

[00:25:47] Speaker 02:
The government has argued that- Sir, before you get to that, I have one quick question.

[00:25:55] Speaker 03:
My understanding is that on appeal, you only raised with respect to disputing whether something was a protected disclosure under 2302B.

[00:26:05] Speaker 03:
You only raised disclosure number three.

[00:26:11] Speaker 03:
You didn't press disclosures number one and two.

[00:26:14] Speaker 03:
Am I misreading your brief?

[00:26:15] Speaker 02:
I believe that we had continued to advocate all four disclosures, which the administrative judge said were protected.

[00:26:24] Speaker 03:
Well, listen, my question is, though, did you say that in your brief?

[00:26:28] Speaker 03:
I read your brief as only arguing with respect to making arguments with respect to disclosure three.

[00:26:33] Speaker 03:
Am I misreading it?

[00:26:34] Speaker 03:
Can you show me in the brief where you made the arguments with respect to the other disclosures?

[00:26:40] Speaker 02:
We had briefed it thoroughly below, Your Honor.

[00:26:42] Speaker 02:
We didn't concentrate on that in this pleading because we were trying to address the issues that the board raised and made findings on.

[00:26:56] Speaker 02:
The government had said that

[00:27:00] Speaker 02:
and the administrative judge that Ms.

[00:27:02] Speaker 02:
Farrington didn't engage in protected speech because the NTSB and the FDA disagreed with her.

[00:27:08] Speaker 02:
We don't think that's really an issue before the court, since the board presumed it.

[00:27:12] Speaker 02:
But she certainly did engage in protected speech.

[00:27:16] Speaker 03:
You've said repeatedly, protected speech.

[00:27:19] Speaker 03:
We're talking about protected disclosures.

[00:27:21] Speaker 02:
Protected disclosures, yes, ma'am.

[00:27:23] Speaker 02:
Thank you.

[00:27:25] Speaker 02:
She's certainly engaged in protected disclosures.

[00:27:28] Speaker 02:
You don't have to be right.

[00:27:29] Speaker 02:
You can be wrong.

[00:27:31] Speaker 02:
The law only requires a reasonable belief.

[00:27:35] Speaker 02:
And if her disclosures were sufficiently, yes, sir?

[00:27:38] Speaker 01:
Objectively reasonable belief.

[00:27:41] Speaker 02:
an objective reasonable belief.

[00:27:43] Speaker 02:
And there's really no dispute that the FAA thought that her disclosures were sufficiently reasonable to set up a program for them.

[00:27:52] Speaker 02:
And the NTSB thought they were sufficiently reasonable to work with her and follow through.

[00:27:57] Speaker 02:
We think that she's met the reasonable belief standard, whether or not she was ultimately correct.

[00:28:02] Speaker 02:
The government also stated that the 2017 language for a duty speech, and it can close this case, is not retroactive.

[00:28:12] Speaker 02:
And we don't think that's well taken.

[00:28:14] Speaker 02:
The board found that it was retroactive.

[00:28:19] Speaker 02:
Congress said that this was just clarifying amendments that were retroactive.

[00:28:25] Speaker 02:
This court in the Salazar decision

[00:28:29] Speaker 02:
affirmed that Congress was right on that because the Office of Special Counsel had requested clarifying language due to it being ambiguity in the statute.

[00:28:40] Speaker 02:
There shouldn't be any concern about that.

[00:28:43] Speaker 02:
I'd like to emphasize that

[00:28:45] Speaker 02:
The primary issue before the court is, in addition to applying the burdens of proof to duty speech, is the boundaries of duty speech.

[00:28:54] Speaker 02:
That's why the government said that the board said that she would be subject to the higher burden of proof.

[00:29:03] Speaker 02:
The boundaries of duty speech are not determined by a job description, which is the board's baseline boundary for duty speech.

[00:29:12] Speaker 02:
A job description, as the Supreme Court said in the Garcelli case, can include all sorts of things that aren't responsibilities, but they're activities which are discretionary that an employee can take at their personal initiative.

[00:29:27] Speaker 02:
To be duty speech, it has to be work that was assigned

[00:29:31] Speaker 02:
that, as the Supreme Court said, was created and commissioned by the employer.

[00:29:37] Speaker 02:
In this case, even if we use the job description boundary, there is nothing in there that assigned Ms.

[00:29:44] Speaker 02:
Barrington the whistleboard to confront the division manager twice, to go to the National Transportation Safety Board with her,

[00:29:52] Speaker 02:
with her concerns.

[00:29:54] Speaker 02:
These were personal initiatives.

[00:29:56] Speaker 02:
They're outside the scope of duty speech, and it's section B-8, not B-2, that should be governing this decision.

[00:30:04] Speaker 01:
Thank you, counsel.

[00:30:05] Speaker 01:
The case is taken under submission.