[00:00:00] Speaker 03:
The next case for argument is Carol Harris versus the Department of Veterans Affairs 24-2213.

[00:00:05] Speaker 03:
Ms.

[00:00:06] Speaker 03:
Gaither, when you're ready.

[00:00:10] Speaker 01:
Good morning, Your Honor.

[00:00:12] Speaker 01:
First of all, I want to say I count it quite an honor to be in this court today, and I want to thank you for that.

[00:00:21] Speaker 01:
Let's see here.

[00:00:24] Speaker 01:
My argument is that here's how the 2004

[00:00:30] Speaker 01:
2005 EELC and DOL complaints filed by Ms.

[00:00:35] Speaker 01:
Harris, who is the appellant in this case, which was a protected activity, resulted in the non-selection and the removal of Ms.

[00:00:47] Speaker 01:
Harris.

[00:00:48] Speaker 01:
If you could take a moment and look at Appendix 3.

[00:00:54] Speaker 01:
When all is said and done,

[00:00:58] Speaker 01:
There remains the issue of, that's in Appendix 3, the DVAs admitted failure to not follow Ginger v. Department of Defense, which is Federal Circuit 208.

[00:01:19] Speaker 01:
They didn't follow the requirements there.

[00:01:22] Speaker 01:
And then they failed to follow the 2009 memorandum, which is in Appendix 6.

[00:01:38] Speaker 01:
sent to all federal agencies informing them that they were required to follow OPM protocol to pass over preference eligible of 30% veterans like Ms.

[00:01:53] Speaker 01:
Harris.

[00:01:53] Speaker 01:
And she was just that in 2012.

[00:01:56] Speaker 01:
The DVA should have sent the required pass over documents to OPM and to Ms.

[00:02:05] Speaker 01:
Harris.

[00:02:06] Speaker 01:
That was never done.

[00:02:08] Speaker 03:
So I understand your argument that they didn't comply with gentry.

[00:02:12] Speaker 03:
But this is a whistleblower case.

[00:02:15] Speaker 03:
And you have to establish that she made a protected disclosure.

[00:02:19] Speaker 00:
Yes.

[00:02:19] Speaker 03:
And what are you arguing was the protected disclosure?

[00:02:25] Speaker 01:
The fact that she did, back in 2004, I believe, in 2005, when she reported

[00:02:39] Speaker 01:
fraudulent dissemination of patient information and documents.

[00:02:45] Speaker 01:
And in reporting that whistle.

[00:02:47] Speaker 03:
How does this relate to the Gingery argument you're making now?

[00:02:51] Speaker 01:
Because in their dismissal or non-selection and their removal of Ms.

[00:03:01] Speaker 01:
Harris, they did not follow the dictates that were set out in Gingery, which said that you had to.

[00:03:08] Speaker 03:
But that's a different, I'm sorry, I'm having a little hard time following your argument.

[00:03:14] Speaker 03:
To the extent we're talking about Gingery, you're not challenging her non-selection in any kind of just pure challenge to the non-selection because the board didn't have jurisdiction over it.

[00:03:25] Speaker 03:
You did it as a whistleblower claim.

[00:03:28] Speaker 03:
So are you saying that her non-selection, there's two things going on that I don't understand.

[00:03:34] Speaker 03:
Are you saying that?

[00:03:36] Speaker 03:
Their non-selection and Gingery violation was motivated by whistleblower retaliation for some other disclosure, or that her disclosure of the Gingery violation led to her removal?

[00:03:49] Speaker 01:
No, because I think Gingery, I was only taking from Gingery the fact that they set forth the OPM requirements.

[00:04:00] Speaker 03:
I get it.

[00:04:01] Speaker 03:
I don't know that the government would agree, but I don't know that it mattered if Gingery was violated or not.

[00:04:09] Speaker 03:
You're challenging her removal, right?

[00:04:13] Speaker 03:
You have to connect up some disclosure she made that

[00:04:18] Speaker 03:
The removing officials used her removal as retaliation for making that disclosure.

[00:04:24] Speaker 03:
So can you identify for me the disclosure she made that's protected under the law that you think swarmed the basis for the retaliation?

[00:04:33] Speaker 01:
That would have been, again, going back to 2004, 2005.

[00:04:39] Speaker 03:
So the problem with that one is, didn't the board find that the people surrounding the 2014 removal, because that was 10 years later, had no knowledge whatsoever of that disclosure?

[00:04:51] Speaker 01:
Well, there could be an argument that they did have knowledge.

[00:04:57] Speaker 01:
Pamela Reeves, one of the people who testified and one of the people who the ALJ used to come up with that position,

[00:05:09] Speaker 01:
had been around the VA for more than a 10-year period.

[00:05:15] Speaker 03:
But the board didn't agree with that factual conclusion, right?

[00:05:19] Speaker 03:
The board found that neither Ms.

[00:05:20] Speaker 03:
Werner or Ms.

[00:05:22] Speaker 03:
Reeves knew about that 2004, 2005 IG complaint, right?

[00:05:28] Speaker 03:
That's what they found.

[00:05:29] Speaker 03:
Right.

[00:05:29] Speaker 03:
That's a factual conclusion.

[00:05:31] Speaker 03:
And we only review that for substantial evidence.

[00:05:34] Speaker 01:
Well, Ms.

[00:05:36] Speaker 01:
Pamela Reeves,

[00:05:39] Speaker 01:
said in the testimony you're referring to that she would get the EEOC and the DOL, I believe, complaints.

[00:05:50] Speaker 01:
She got them.

[00:05:51] Speaker 01:
They ran across her desk.

[00:05:52] Speaker 01:
She did see Ms.

[00:05:53] Speaker 01:
Harris's name there.

[00:05:58] Speaker 03:
But you're asking us to draw a different factual conclusion than the board.

[00:06:02] Speaker 03:
And the board relied on these two individuals' testimony, direct testimony, that they didn't know anything about the 2004 disclosure.

[00:06:11] Speaker 03:
How can we disagree with the board's reliance on testimony when all you say is, well, possibly they might have known on it?

[00:06:19] Speaker 01:
Well, I guess it's just the opposite.

[00:06:22] Speaker 01:
That was taken as true, but we do have

[00:06:28] Speaker 01:
the information in our brief that says the opposite of that.

[00:06:35] Speaker 00:
So I'm not... Essentially, there are credibility determinations that might need to be made here.

[00:06:41] Speaker 00:
How would we, on appeal, disagree with that determination?

[00:06:47] Speaker 01:
I suppose we would have to do a credibility issue on that.

[00:06:57] Speaker 03:
I mean, our precedent makes pretty clear, though, that we are not the court to do credibility determinations.

[00:07:04] Speaker 03:
The board is the entity that does the credibility determinations, and they're virtually unreviewable here.

[00:07:11] Speaker 01:
OK.

[00:07:12] Speaker 01:
So even though the ALJ did say in making the statement about the failure on the part of the DBA II,

[00:07:27] Speaker 01:
follow the OPM, that information, I'm trying to, let's see, the excuse that was given is a mistaken belief.

[00:07:46] Speaker 01:
So you're saying that this court is not equipped to get to that because of Ms.

[00:07:55] Speaker 01:
Reeves'

[00:07:56] Speaker 01:
and the other people's testimony that there was no retaliation in the non-selection and the removal of Ms.

[00:08:04] Speaker 01:
Harris.

[00:08:07] Speaker 03:
I mean, I'm not saying anything.

[00:08:09] Speaker 03:
I'm just posing questions to you based upon what our law is.

[00:08:13] Speaker 03:
And when you have testimony from individuals and the board judge gets to listen to the testimony and make their determination, how are we to disagree with that when those people aren't here in front of us and saying the same thing?

[00:08:26] Speaker 03:
Allowing us to assess whether they're credible or not.

[00:08:29] Speaker 03:
That's what our president says.

[00:08:31] Speaker 03:
We just don't do that We accept the board's determination on that absent like really extraordinary circumstances Well, I don't think there's I mean I just don't see anything in the record that suggests those two people were lying So do you have anything else well just to say that

[00:08:55] Speaker 01:
Our argument was that the reasoning behind the non-selection and the removal was based on retaliation.

[00:09:08] Speaker 01:
And it was willful.

[00:09:10] Speaker 01:
And that Ms.

[00:09:12] Speaker 01:
Harris, in all this time, has sat for 10 years and that she should have been compensated.

[00:09:20] Speaker 01:
She should have received back pay.

[00:09:22] Speaker 00:
Where is your best evidence?

[00:09:25] Speaker 00:
If you point me to a J.A.

[00:09:26] Speaker 00:
page, the deciding officials were aware of the 2004 to 2005 whistleblower.

[00:09:32] Speaker 00:
Looks like your very best evidence in that regard.

[00:09:55] Speaker 01:
Well, I had, again, I had Appendix 3 and Appendix 6.

[00:10:03] Speaker 01:
Appendix 3, I believe, said.

[00:10:08] Speaker 00:
And this is to your blue brief that you're talking about, Appendix 3 and Appendix 6?

[00:10:12] Speaker 00:
Yeah.

[00:10:14] Speaker 00:
Yes.

[00:10:14] Speaker 03:
Appendix 3 is the Department of Labor complaint, right?

[00:10:18] Speaker 01:
Let's see, 3.

[00:10:19] Speaker 01:
Let me find it just a moment here.

[00:10:33] Speaker 01:
Yeah, it is, Your Honor.

[00:10:35] Speaker 01:
It is the Department of Labor letter.

[00:10:39] Speaker 01:
But it implies that there was a consortium of people involved in this dismissal.

[00:10:46] Speaker 01:
But for the record, if we go down to, and this is from, let's see here, I think a Mr. Bixler.

[00:10:58] Speaker 01:
He said, I need to let you know.

[00:11:00] Speaker 01:
We found the claim to be meritorious based on the Circuit Court of Appeals filing on Gingery and OPM's memorandum dated February 9, 2009.

[00:11:15] Speaker 01:
Ms.

[00:11:15] Speaker 01:
Harris should have been notified of the Passover.

[00:11:19] Speaker 01:
Due to this finding, she may be entitled to back wages from the date the individual who was chosen over her was hired.

[00:11:28] Speaker 03:
What does this have to do with the removal and the whistleblower claim?

[00:11:33] Speaker 01:
With the removal and the non-selection?

[00:11:35] Speaker 03:
No.

[00:11:36] Speaker 03:
You're not here to challenge the non-selection.

[00:11:39] Speaker 03:
We don't have jurisdiction over that.

[00:11:41] Speaker 03:
You're here on a whistleblower claim saying a removal was in retaliation for whistleblower.

[00:11:47] Speaker 03:
What does any of this have to do with that?

[00:11:49] Speaker 01:
I thought there was a connection between the

[00:11:57] Speaker 01:
whistleblower act going back to 2004 and 2005.

[00:12:04] Speaker 03:
Well, that's what I'm asking you.

[00:12:05] Speaker 03:
How does this 2013 report on a gendry violation have anything to do with 2004 on its face?

[00:12:16] Speaker 01:
It's like it's not the years, Your Honor.

[00:12:18] Speaker 01:
It's just the fact that this agency contrived

[00:12:25] Speaker 03:
I'm sorry.

[00:12:25] Speaker 03:
No, finish your thought.

[00:12:26] Speaker 01:
This agency contrived the removal and the non-selection of Ms.

[00:12:33] Speaker 01:
Harris really back then when she made the whistleblowing action.

[00:12:40] Speaker 03:
OK.

[00:12:40] Speaker 03:
I think we have your argument.

[00:12:42] Speaker 03:
You're into your rebuttal.

[00:12:43] Speaker 03:
Would you like to save it?

[00:12:45] Speaker 01:
Yes.

[00:12:45] Speaker 03:
Thank you.

[00:12:49] Speaker 03:
Mr. Lewis?

[00:13:01] Speaker 02:
Good morning.

[00:13:01] Speaker 02:
May it please the Court.

[00:13:03] Speaker 02:
The Court should affirm the final decision of the Merit Systems Protection Board, where the appellant chose to pursue a whistleblower retaliation claim, but has failed to meet a burden to connect any adverse agency action with any of her alleged whistleblowing.

[00:13:16] Speaker 02:
And I think that the court correctly honed in on difficulties that the appellant has had with connecting this whistleblowing to any of the allegations in the brief or the arguments presented.

[00:13:27] Speaker 02:
And thus, I am happy to answer any questions that the court may have.

[00:13:31] Speaker 03:
I mean, there's some underlying things here that I want to make sure I understand.

[00:13:34] Speaker 03:
We're looking at this.

[00:13:36] Speaker 03:
Department of Labor complaint and I don't see it how it connects up to the to the 2004 OIG report, which the board did find was the disclosure.

[00:13:49] Speaker 03:
Can you explain why the DOL report was in itself a disclosure?

[00:13:57] Speaker 02:
why it was not an unselfish law.

[00:14:00] Speaker 03:
Why it doesn't constitute a protected disclosure.

[00:14:03] Speaker 03:
I mean, she is complaining about being passed over in violation of some veterans preference laws, I think.

[00:14:10] Speaker 02:
If you were to look at this particular whistleblower allegation, she's complaining that the law was violated and not selecting her during the same time period.

[00:14:20] Speaker 02:
for this position.

[00:14:21] Speaker 02:
And at the end of the day, she's just challenging a personal grievance rather than any of the sort of five USC 2302 standards, violation of law.

[00:14:32] Speaker 03:
I don't know that that's what I asked.

[00:14:35] Speaker 03:
I think I asked, why isn't the report to the Department of Labor, where she said I was unlawfully passed over, an allegation of a violation

[00:14:46] Speaker 03:
a law, rule, or regulation.

[00:14:48] Speaker 03:
Why doesn't that document in Article III constitute a protected disclosure?

[00:14:54] Speaker 02:
In our position, it just doesn't rise to the level of the type of challenge to the whistleblower under the whistleblower statute.

[00:15:03] Speaker 02:
I'm not sure I may be missing your question.

[00:15:07] Speaker 03:
You're either missing my question or you're not giving me a very good answer.

[00:15:10] Speaker 03:
I mean, is it?

[00:15:12] Speaker 03:
I think.

[00:15:14] Speaker 03:
if it was reported to the right person in the right form that the agency is violating a statute, it doesn't make any difference as to whether it's just with regard to an individual as opposed to altogether, does it?

[00:15:31] Speaker 03:
The whole point of the Whistleblower Act is if you think something's going on wrong, you report it.

[00:15:35] Speaker 03:
If it's a protective disclosure, then

[00:15:39] Speaker 03:
then you go forth with the rest of the process.

[00:15:42] Speaker 03:
So when she reported to the Department of Labor that the agency didn't use the proper Passover procedures, isn't that a report of a violation of law, rule, or regulation?

[00:15:55] Speaker 02:
And on some level, I agree, Your Honor.

[00:15:58] Speaker 02:
probably line drawing exercise here, where to the extent that there is some.

[00:16:02] Speaker 03:
I think it's not a line drawing exercise.

[00:16:03] Speaker 03:
I think your response probably should be that DOL reports have been held not to be protected by 2302B8 or the portion of B9 that constitutes a protected disclosure.

[00:16:17] Speaker 02:
And that was going to be actually my second sentence because just last night.

[00:16:21] Speaker 03:
It seems like it should have been your first sentence.

[00:16:23] Speaker 02:
Just last night, I looked through some of the recent cases in the past year or so that the court has decided.

[00:16:28] Speaker 02:
And I believe I've got.

[00:16:31] Speaker 02:
two within the past year or so, Abdullahi, the American System Protection Board, which is at 127 Federal 4th, 373, and Courtney, the American System Protection Board, which is under the federal appendix, but at 2025 Westlaw 3043499.

[00:16:50] Speaker 02:
That essentially come to that same conclusion, which is just these types of Department of Labor person allegations are not whistleblower allegations underneath 5 USC Section 2302.

[00:17:04] Speaker 03:
And on the one protected disclosure that the board did find, which was the IG complaint, which I think the government doesn't dispute as a protected disclosure.

[00:17:15] Speaker 02:
No, we do not dispute that the 2004-2005 IG complaint was a protected disclosure, just that the appellant has failed to tie that protected disclosure to any of the subsequent adverse actions.

[00:17:28] Speaker 03:
Agency officials didn't know about it.

[00:17:30] Speaker 02:
Agency officials didn't know about it.

[00:17:32] Speaker 02:
One of the agents was Ms.

[00:17:34] Speaker 02:
Reeve, wasn't even working in the role that she subsequently would have been.

[00:17:37] Speaker 02:
And just the extenuated period of time, this type of information tends to be removed following five years.

[00:17:45] Speaker 02:
It's just not within their knowledge when they determine to pass over the appellant for the job opportunity.

[00:18:02] Speaker 02:
Thank you.

[00:18:09] Speaker 03:
Ms.

[00:18:09] Speaker 03:
Gaither, you have about two and a half minutes left.

[00:18:15] Speaker 01:
No, just leave her with what she has.

[00:18:20] Speaker 01:
I can humbly say that the DOL complaint was a valid violation of what is it

[00:18:32] Speaker 01:
2302B, whatever.

[00:18:37] Speaker 01:
And that's all I'm going to say at this point.

[00:18:41] Speaker 01:
Thank you.

[00:18:42] Speaker 03:
Thank you.

[00:18:44] Speaker 03:
Thank you to counsel.

[00:18:45] Speaker 03:
The case is submitted.