[00:00:00] Speaker 02: We will hear our next in case number 24, 2291, Garland against OPM. [00:00:08] Speaker 02: Mr. Bonk. [00:00:10] Speaker 04: All right. [00:00:10] Speaker 04: Well, thank you, and good morning, Your Honors. [00:00:12] Speaker 04: I may please the court, Christopher Bonk on behalf of Petitioner Tracy Garland. [00:00:16] Speaker 04: Here there's clear error of law opium and the board both rejected Miss Garland's medical evidence is not objective and on that basis held that opium is satisfied its burden to rebut the Brunner presumption and so a more typical case involving application of the Brunner presumption involves an agency removal action and then review by opium but here opium is on both sides of the equation and [00:00:39] Speaker 04: So OPM removed Ms. [00:00:41] Speaker 04: Garland for medical inability to perform due to a disability and then promptly rejected her subsequent application for disability retirement, stating that there's no objective records provided to show that her medical condition caused a disablement. [00:00:54] Speaker 02: So what the initial decision used, the word objective evidence, the reconsideration decision, which was what was on appeal. [00:01:05] Speaker 02: I think the government makes, the board I guess here, makes that argument. [00:01:13] Speaker 02: So even though [00:01:14] Speaker 02: There is a statement about the missing objective evidence. [00:01:20] Speaker 02: First of all, it's not in the reconsideration decision. [00:01:23] Speaker 02: And second, I think, the submission is that's not all there is. [00:01:28] Speaker 02: So clearly, the absence of something called objective evidence cannot, standing alone, be sufficient. [00:01:35] Speaker 02: I think we established that. [00:01:37] Speaker 02: Why is that this case? [00:01:39] Speaker 04: Certainly, Your Honor, and I think it's a really important point to note on the request for reconsideration that are directly on point with that. [00:01:46] Speaker 04: One is [00:01:48] Speaker 04: The actual listing of absence of records, what the reconsideration decision does, it doesn't go out and say the word objective, certainly. [00:01:55] Speaker 04: But that's not the requirement. [00:01:56] Speaker 04: It doesn't need to state objective evidence in order to trigger what's effectively the Vanik and Ryle's requirement. [00:02:05] Speaker 04: The listing of missing documents, the reasons, the justifications the reconsideration decision has in affirming the initial decision, it's the same reasons. [00:02:13] Speaker 04: It's the same rejection of records because they're not objective. [00:02:16] Speaker 04: On appendix page 80 states a lack of neuropsychological testing that may be performed over the years, records pertaining to treatment, reports psychotherapy notes. [00:02:25] Speaker 04: Also on page 80, flagging the basis for the rejection medical records of your office visits during periods of incapacitation, lack of provision of psychotherapy notes. [00:02:35] Speaker 04: All of these are in line with the same objective medical records that the initial decision is flagging as the basis for denial. [00:02:42] Speaker 04: And on top of that, the reconsideration of firms, [00:02:44] Speaker 03: In terms of whether or not the reconsideration decision is also turning on the absence of objective evidence, the reconsideration decision starts off by saying we concluded the initial decision was correct. [00:02:57] Speaker 03: We have again concluded the evidence you submitted doesn't meet the requirements. [00:03:01] Speaker 04: Well, exactly so, Your Honor. [00:03:03] Speaker 04: And that was my next point here, which is it affirms that there is no modification of the basis of the initial OPM initial decision by the reconsideration decision. [00:03:10] Speaker 04: The initial decision is unambiguous and that the basis for rejecting Ms. [00:03:14] Speaker 04: Garland's disability retirement application [00:03:16] Speaker 04: is the absence of objective medical evidence, the reconsideration request affirms that. [00:03:22] Speaker 04: There's no modification of that basis. [00:03:23] Speaker 02: What was the specific kind of evidence that in Vanneken Riles we said could not support the conclusion standing alone for failing to be objective? [00:03:42] Speaker 04: The exact type of objective evidence, I do not recall the specifics on that, Your Honor, from Vanneken-Riles, exactly what nature, whether it was a report or whether it was a medical test. [00:03:51] Speaker 02: I guess I'm trying to understand how broad some, whatever Vanneken-Riles stands for that is. [00:04:01] Speaker 02: There's a very large amount of [00:04:08] Speaker 02: stuff that goes into mental health evaluations that might have some subjective component, might have some objective component. [00:04:21] Speaker 02: And tell me why you think all of the deficiencies that were asserted by, I guess, the AJ and by [00:04:32] Speaker 02: by OPM in the combined initial and reconsideration decisions are deficiencies identified as such for failure to be objective. [00:04:45] Speaker 04: And I hope this answers your question, Judge. [00:04:47] Speaker 04: And really what I think- This is a long question, so. [00:04:54] Speaker 04: I think I want to stress here, it's an important point, is we're not trying to alter Trevin, we're not trying to alter Vanek and Riles, we're not trying to expand the scope of either. [00:05:02] Speaker 04: We think that this case, Ms. [00:05:03] Speaker 04: Garland's case, fits very neatly within the Vanek and Riles framework. [00:05:08] Speaker 04: Vanek and Riles, I think what the really key distinguishing point here is, and what's prohibited under Vanek and Riles, is this categorical exclusion of evidence. [00:05:20] Speaker 04: And it's sometimes a tricky circumstance for these psychological disabilities, certainly, which Ms. [00:05:25] Speaker 04: Garland's is, where there's a heavy reliance on subjective evidence. [00:05:29] Speaker 04: But that's why it's all the more important here that we apply Vanek and Riles within the scope that it already exists here, which is [00:05:35] Speaker 04: prohibiting this categorical exclusion because there's no dispute. [00:05:39] Speaker 02: I guess I'm trying to understand what to make of this idea of a categorical conclusion. [00:05:50] Speaker 02: Did OPM or AJ say [00:05:54] Speaker 02: What we have here from Dr. Greenberg are some very conclusory statements. [00:06:01] Speaker 02: We need something to back that up, the kind of thing that tends to pack that up. [00:06:07] Speaker 02: We don't have neuropsychological testing in which there are scores. [00:06:11] Speaker 02: We don't have, I don't know what else there would be, but we also don't have, I don't know, therapy notes. [00:06:18] Speaker 02: We don't have very specific diagnoses [00:06:22] Speaker 02: That feels like it's moving outside the Vatican Rials. [00:06:29] Speaker 02: You cannot rely on this alone. [00:06:32] Speaker 04: Certainly, Judge. [00:06:33] Speaker 04: And I think if there were issues where there were not articulated diagnoses, were not articulated impacts of the disability on Ms. [00:06:40] Speaker 04: Garland's ability to perform, [00:06:42] Speaker 04: Certainly, I think this would bring that outside the scope of manic trials. [00:06:45] Speaker 04: This is not that far. [00:06:48] Speaker 04: The notes from the doctor or physician, there's multiple treating physician letters part of the record, appendix 137, 153, 155. [00:06:56] Speaker 04: They all walk through the identified diagnosed disabilities, major depressive disorder, generalized anxiety disorder, insomnia. [00:07:03] Speaker 04: And they walk through, the physician walks through the impact that this has on Ms. [00:07:07] Speaker 04: Garland's inability to perform the essential functions here. [00:07:11] Speaker 04: What happens with the OPM decision, initial denial, and then the reconsideration decision, [00:07:17] Speaker 04: is an acknowledgement that there are these subjective medical records walking through the diagnoses, walking through the impact that these diagnoses have on Ms. [00:07:25] Speaker 04: Garland's ability to function, and flagging that because they are not supported by objective medical evidence, because they are not themselves objective medical evidence, discarding them, finding she's not entitled to disability retirement, we think that fits neatly within Vanneken Riles. [00:07:42] Speaker 04: And I think also important to flag as well on that same point and related to that point is OPM's own response to appeal because OPM of course here never filed any close record evidence or argument at the board. [00:07:53] Speaker 04: So Ms. [00:07:55] Speaker 04: Garland of course appealed. [00:07:56] Speaker 04: heard the denial to the board, and OPM never filed an ultimate closing record argument. [00:08:01] Speaker 04: What OPM did file is that initial agency file, that initial response to appeal, basically memorializing the case record of the appealed action at the board level, putting that in the docket. [00:08:10] Speaker 04: And in OPM's initial response to appeal, it acknowledges submission of those medical records by Ms. [00:08:16] Speaker 04: Garland's treating physician, [00:08:17] Speaker 04: But then notes again reiterates that there's no current supporting objective records That's an appendix 190 and then even the brief note that OPM has on its pretext burden that response to appeal at appendix 193 OPM states dr. Greenberg offered no evidence of testing psychotherapy notes list of medications or documentation to treatment again laundry listing the absence of objective medical documentation as the basis for that denial of disability retirement [00:08:45] Speaker 02: And if we were to agree with you on this point, what's the relief that we should give? [00:08:56] Speaker 04: It's an interesting question, Judge, because it's not common for this court to grant it. [00:09:00] Speaker 04: I'll concede. [00:09:02] Speaker 04: But we think because of the burden-shifting framework in play here under Bruner, this court can, and it has before in the past, simply reverse and approve Ms. [00:09:11] Speaker 04: Garland for disability retirement. [00:09:12] Speaker 04: Because under Bruner, the presumption controls. [00:09:14] Speaker 04: There's no dispute that the Bruner presumption applies to Ms. [00:09:17] Speaker 04: Garland. [00:09:17] Speaker 04: The issue is whether OPM rebut that presumption. [00:09:20] Speaker 04: And here, our position is that there was legal error in that rebuttal determination. [00:09:24] Speaker 04: So there is no rebuttal. [00:09:25] Speaker 04: where Bruner controls Ms. [00:09:27] Speaker 04: Garner is entitled to disability retirement. [00:09:29] Speaker 03: What case is it that we have held where the Bruner presumption was not rebutted? [00:09:35] Speaker 03: You said there was a case? [00:09:36] Speaker 04: Oh, for that facet of relief, Judge, I believe it was Gooden in 2006. [00:09:42] Speaker 02: Cite. [00:09:45] Speaker 04: I do not have that on me, Judge. [00:09:47] Speaker 02: Good, you said? [00:09:48] Speaker 02: Case called Good? [00:09:49] Speaker 04: Gooden, G-O-O-D-E-N. [00:09:52] Speaker 04: That's specifically on the issue of the relief of the remand back, or rather than a remand, a reversal and a granting of disability retirement. [00:09:58] Speaker 02: Just Gooden? [00:10:00] Speaker 04: Gooden, sorry, G-O-O-D-E-N. [00:10:02] Speaker 02: Like the picture. [00:10:05] Speaker 02: Right? [00:10:05] Speaker 02: Dwight Gooden, yeah? [00:10:07] Speaker 04: Yes. [00:10:14] Speaker 04: So. [00:10:19] Speaker 03: Well, in your case, it depends on us agreeing with you that the reconsideration decision went off on the ground of no objective evidence. [00:10:27] Speaker 04: Certainly, Judge. [00:10:28] Speaker 03: And the AJ, likewise. [00:10:31] Speaker 04: Yes, Judge. [00:10:31] Speaker 04: And I think, particularly, the AJ's point. [00:10:34] Speaker 04: I mean, the AJ had almost no assessment on this at all, but rather just noted. [00:10:41] Speaker 03: The AJ confused the initial decision with the reconsideration. [00:10:46] Speaker 03: I don't really know what the AJA thought about the reconsideration decision. [00:10:51] Speaker 04: But we do know, I think, Judge, based on the AJA's decision, that the AJA thought they understood OPM's assessment or decision. [00:10:57] Speaker 03: Your argument is that that's a categorical rule under Riles. [00:11:02] Speaker 04: Yes, Your Honor. [00:11:03] Speaker 03: That's correct. [00:11:04] Speaker 03: And that you will. [00:11:06] Speaker 04: Yes. [00:11:09] Speaker 02: What is the scope in your view of the review, the finality provision of, I forget what the statutory provision is, is it 8347 or something? [00:11:22] Speaker 02: The one that was at issue in Lindahl. [00:11:24] Speaker 02: Lindahl said, [00:11:27] Speaker 02: At least constitutional, certain kinds of issues can be done on review, but the basic determination of disability cannot be reviewed. [00:11:40] Speaker 04: Well, I think in Lindahl, and at least for the applicability to this case, I think the proposition that we would take from Lindahl is that error going to this heart of administrative determination, again, to Vanek and Riles, that's reviewable by this court. [00:11:54] Speaker 02: Right, but then how does that affect the remedy? [00:11:57] Speaker 02: I wonder, I guess my question would be whether that means we can say this was a legal error, but we cannot say ourselves that here is the necessary result when that legal error is corrected. [00:12:13] Speaker 04: And here, Judge, I think, and I don't know necessarily the applicability directly to Lindell on that. [00:12:19] Speaker 04: I don't have them before me to break that down. [00:12:21] Speaker 04: But again, because this is such an unusual situation, because we have the Bruner presumption in effect, and I think the case law, you know, Bruner itself is pretty clear cut on that. [00:12:31] Speaker 04: If the Bruner presumption is in effect, [00:12:33] Speaker 04: that controls disability retirement, there's entitlement to disability retirement benefits. [00:12:38] Speaker 04: But if this court reverses that rebuttal burden in particular here, whether or not that rebuttal burden was satisfied as part of a legal error, that reversal should have a Bruner control in her position. [00:12:52] Speaker 00: What if we were to say, clarify and say, no, you can't rely on the lack of objective evidence in order to satisfy the Brunner presumption. [00:13:04] Speaker 00: Go back and try again. [00:13:08] Speaker 00: try again to the board to see whether the Brunner presumption was satisfied or not. [00:13:14] Speaker 00: In the first instance, once they understand what the correct law is, then wouldn't that be appropriate also as an alternative option? [00:13:22] Speaker 04: It certainly would, Judge, and I think we've requested that in the alternative in our pleadings as well. [00:13:26] Speaker 03: I see my question if we were to ruin your favor on the rebel of the printer presumption and say that you win Does that moot the second question you've raised which is the propriety of the AJ and? [00:13:38] Speaker 03: Rejecting your additional evidence at step one in effect. [00:13:42] Speaker 04: Yes, I would move that my understanding is yes, I See my time to conclude if I may reserve the remainder Thank you. [00:13:48] Speaker 04: We would not need to reach that I do not believe you need to reach that that issue judge I [00:13:59] Speaker 01: May it please the court? [00:14:01] Speaker 01: This court should affirm the board's decision, affirming the reconsideration decision of the administrative judge, because there's been no legal error here. [00:14:16] Speaker 01: There hasn't been a categorical exclusion of evidence, like my friend says. [00:14:22] Speaker 01: Here, there has been an application of Trevon, where the lack of medical evidence was pointed to by the OPM. [00:14:35] Speaker 01: And that rebutted the presumption, which is perfectly in line with Trevon. [00:14:41] Speaker 01: And the administrative judge applied, quoted, and cited Vatican Riles in his decision. [00:14:49] Speaker 01: He cataloged the evidence very carefully, just like was done in Vanek and Riles. [00:14:54] Speaker 01: He pointed out in his decision where there were issues with certain medical evidence. [00:15:02] Speaker 01: And then he took issue with the evidence that purported to come from Dr. Greenberg's office. [00:15:12] Speaker 01: And that just resulted in a decision that was not in favor of Ms. [00:15:16] Speaker 01: Garland getting disability retirement. [00:15:20] Speaker 01: But in Vanekken-Riles, the same thing happened. [00:15:23] Speaker 01: The facts were a little different. [00:15:26] Speaker 01: But the court said, but here OPM did not express any doubt as to the credentials or veracity of Dr. Nichols or Dr. Rumler. [00:15:36] Speaker 01: And the only medical evidence as to whether Vanekken-Riles suffered from a disabling psychological disorders were their reports and documentation. [00:15:46] Speaker 01: Here, there's a question about the veracity and credentials of Dr. Greenberg. [00:15:51] Speaker 01: So that's why there's a difference. [00:15:57] Speaker 01: This case does fall squarely within Trevon. [00:16:00] Speaker 01: It's the closest case that matches this one because it employs the Bruner presumption and it applies analysis rebutting the Bruner presumption. [00:16:13] Speaker 01: Fanek and Riles is relevant, certainly, but it doesn't have the same discussion of rebutting the Bruner presumption, because there was no Bruner presumption in that case. [00:16:28] Speaker 01: The administrative judge carefully weighed all the evidence, and he pointed out that there were issues with the reliability of the records when it came to the [00:16:42] Speaker 01: handwriting that he noted. [00:16:44] Speaker 01: Also, there were records that did not appear to have any connection to Ms. [00:16:49] Speaker 01: Garland. [00:16:50] Speaker 01: There were records that were illegible. [00:16:53] Speaker 01: So there were issues with the evidence, and he made a rational decision about the effect of that evidence. [00:17:02] Speaker 02: Were there opinions? [00:17:07] Speaker 02: stated under Dr. Greenberg's name that were outside the set of records as to which authenticity questions have been raised. [00:17:25] Speaker 02: If I understand your question... There clearly were authenticity questions raised about some of the submissions that had Dr. Greenberg's name on them. [00:17:36] Speaker 02: Are there some records that have Dr. Greenberg's name on them as to which there are no authenticity questions raised? [00:17:47] Speaker 01: Yes. [00:17:48] Speaker 01: There are letters from him that [00:17:51] Speaker 02: the letters leading up to the removal for inability to do the work? [00:17:57] Speaker 01: Yes, letters that are primarily focused on working conditions and requesting that Ms. [00:18:04] Speaker 01: Garland have a circumstance of work where there aren't production standards. [00:18:10] Speaker 01: Those are letters that I don't [00:18:13] Speaker 01: I haven't seen in the record anything that questions their authenticity. [00:18:17] Speaker 02: And either OPM later, not as employer, but as disability retirement adjudicator in the first instance, said, we don't have enough evidence here either to overcome the presumption or to find by a preponderance of evidence the relevant disability. [00:18:41] Speaker 02: What were the reasons given for the, I'm just going to use the word, untainted Greenberg records being inadequate? [00:18:50] Speaker 01: It doesn't say directly in the reconsideration decision. [00:18:57] Speaker 01: But what the reconsideration decision suggests by what it requests is that it wanted more support for the information provided. [00:19:07] Speaker 01: For instance, [00:19:09] Speaker 01: They wanted a description of symptoms, a description of medical history and treatment, narrative reports and psychotherapy notes, medical records that establish the severity of her medical conditions, her response and compliance, records of office visits during periods of incapacitation. [00:19:26] Speaker 01: So basically, they're asking for the backup for what Dr. Greenberg is saying. [00:19:31] Speaker 01: And if you look at Vatican Riles, in Vatican Riles, those doctors did provide that sort of information. [00:19:38] Speaker 01: It helps that there was a hearing in that particular case, and there were witnesses. [00:19:44] Speaker 01: But in Vatican Riles, there was the applicant's testimony, the husband's corroborating testimony, a physician's letters accompanied by medical reports and progress notes, and a psychiatrist's letter with a diagnosis and prognosis, also accompanied by treatment notes. [00:20:01] Speaker 01: So there's a difference between the facts here and in Vatican Riles. [00:20:07] Speaker 00: I have a question. [00:20:08] Speaker 00: On page A16, which I believe is the administrative judge's decision, it said that the Brunner presumption can be overcome by demonstrating a lack of objective medical evidence, providing a reasoned explanation. [00:20:25] Speaker 00: And then goes on to discuss, I guess, the wrong decision by OPM, but then talks about the [00:20:34] Speaker 00: reconsideration decision. [00:20:36] Speaker 00: But why isn't this referenced to lack of objective evidence and that being sufficient to overcome Bruner, along with the administrative judge's kind of conclusory statement here that OPM has met its burden. [00:20:51] Speaker 00: Why isn't that enough to just at least send it back for the board? [00:20:54] Speaker 00: I mean, yeah, for the board to consider it, understanding the proper law. [00:21:01] Speaker 01: Well, the [00:21:04] Speaker 01: Statement in Trevon is that pointing to a lack of objective medical evidence is sufficient. [00:21:11] Speaker 01: Here, though, I do want to point out that OPM was not pointing just to a lack of objective medical evidence. [00:21:17] Speaker 01: If you look in the narrative brief provided by the agency, on Appendix 193, [00:21:33] Speaker 01: Agency actually points to a lack of sufficient medical evidence. [00:21:38] Speaker 01: So it's not even pointing to objective medical evidence there. [00:21:42] Speaker 01: It's pointing to a lack of sufficient medical evidence. [00:21:46] Speaker 00: I understand, but it takes a little bit of reading into the administrative judge's decision to reach that, doesn't it? [00:21:54] Speaker 00: Do you agree with that? [00:21:57] Speaker 01: I agree that the standard is apparently low. [00:22:05] Speaker 00: the standard for rebutting the presumption? [00:22:08] Speaker 01: For rebutting the presumption based on a lack of medical evidence. [00:22:13] Speaker 00: That wasn't what I asked you, though. [00:22:15] Speaker 00: You might agree with that. [00:22:16] Speaker 00: I was asking if that's what this opinion at page A16 says. [00:22:28] Speaker 00: I mean, this opinion at page A16 doesn't seem to be relying on [00:22:32] Speaker 00: a lack of medical evidence. [00:22:34] Speaker 00: It seems to be relying on a lack of particular types of evidence. [00:22:40] Speaker 01: Well, on page A16, the administrative judge also talks about the OPM reviewer and how the medical reviewer said that there was no medical record at all found in the case file. [00:22:55] Speaker 01: And that seemed to me to be the thing. [00:22:57] Speaker 01: And you think that's accurate? [00:23:00] Speaker 01: It's true. [00:23:00] Speaker 01: That's what the medical reviewer said. [00:23:02] Speaker 00: But is there no medical record at all found? [00:23:06] Speaker 00: I mean, I think you just said that actually there are even authenticated letters from the doctor. [00:23:13] Speaker 00: Would that be no medical record at all? [00:23:17] Speaker 01: It's not clear to me whether the medical reviewer was considering those letters to be medical evidence. [00:23:25] Speaker 00: I'm asking you. [00:23:26] Speaker 00: Yeah, I'm asking you. [00:23:28] Speaker 00: You work in these kinds of cases all the time. [00:23:30] Speaker 00: Would that be considered no medical record? [00:23:35] Speaker 00: I have a hard time thinking that there's no medical record at all unless you're talking about all particular types of evidence. [00:23:43] Speaker 00: For example, objective evidence. [00:23:46] Speaker 01: The letters from Dr. Greenberg can be medical records. [00:23:52] Speaker 01: They can have information in them that would constitute medical information. [00:23:56] Speaker 01: Yes. [00:23:57] Speaker 00: I think there was a diagnosis, for example, in there. [00:23:59] Speaker 01: Yes, that is true. [00:24:01] Speaker 02: OK, thank you. [00:24:05] Speaker 02: understanding correctly, our court in Trevin did not refer to and discuss Vanek and Riles? [00:24:14] Speaker 01: Trevin was decided in 1995. [00:24:15] Speaker 01: I see. [00:24:17] Speaker 02: Much earlier. [00:24:18] Speaker 02: Much earlier. [00:24:18] Speaker 02: So Vanek and Riles then comes back and says, well, there's a certain kind of analysis that's not going to be sufficient. [00:24:28] Speaker 01: You're correct. [00:24:29] Speaker 03: Vanek and Riles has a footnote that distinguishes Trevin, and you don't deal with that in your brief. [00:24:36] Speaker 03: So in the argument, your adversary deals with that and says, well, that explains basically the footnote explains what the role of objective evidence is in one of these cases. [00:24:50] Speaker 03: That objective evidence isn't stated as a go-no-go rigid test. [00:24:56] Speaker 03: Instead, objective evidence comes into play when [00:25:01] Speaker 03: The record as a whole shows that there is evidence undermining the subjective evidence of the applicant, in which case the applicant can only overcome that challenge to its subjective evidence by producing objective evidence. [00:25:18] Speaker 03: That's the argument that your adversary is making to explain what language really means in Trevan. [00:25:26] Speaker 03: Because Trevan does clearly say that we agree with the board that you can meet the first step of the burden of presumption by saying that there's no objective evidence. [00:25:40] Speaker 03: So we have to figure out how Trevan and Manning and Riles fit together. [00:25:46] Speaker 03: to decide what the role of objective evidence is in one of these inquiries. [00:25:51] Speaker 03: Is it a litmus test, as you say, or is it instead something that gets considered in the mix? [00:26:00] Speaker 03: And I found it interesting that you briefly simply didn't address, I was putting a five, whichever it is, in the Mannequin Royals. [00:26:10] Speaker 01: You almost lost your opportunity to explain it. [00:26:15] Speaker 01: I didn't intend it to be a distraction. [00:26:21] Speaker 01: But the difference that matters to this case, I think, is that Miss Garland is arguing about rebutting the presumption. [00:26:40] Speaker 01: Trevon is analogous in that it talks about rebutting the presumption. [00:26:45] Speaker 03: Why doesn't OPM ever address the Brunner presumption? [00:26:49] Speaker 03: The OPM decisions don't deal with the question of whether or not, as in this case, whether the presumption is triggered by the removal. [00:27:02] Speaker 03: Is there a reason why OPM's decisions never address [00:27:07] Speaker 01: I haven't found anything in the case law that addresses addressing the Brunner presumption at the agency level. [00:27:20] Speaker 01: The agency may not have thought that they needed to address it there and maybe it was for [00:27:26] Speaker 01: the next level of review. [00:27:29] Speaker 01: Because if the Bruner presumption is, as a practical matter, applied at the OPM level, who decides whether OPM has properly rebutted the presumption? [00:27:40] Speaker 01: Does the OPM decide? [00:27:42] Speaker 01: And how does that look as a practical matter? [00:27:48] Speaker 02: Well, is that really so mysterious? [00:27:50] Speaker 02: I mean, the employee or the former employee in this context [00:27:56] Speaker 02: has been discharged because of a kind of disability, inability to do the job. [00:28:05] Speaker 02: The logic is that does suggest that enough for our presumption that the now former employee is disabled for retirement purposes. [00:28:18] Speaker 02: So you need something to break that sort of prima facie logical implication. [00:28:26] Speaker 02: Why wouldn't OPM be proceeding in that fashion? [00:28:34] Speaker 01: I don't have an answer to that one. [00:28:36] Speaker 01: I'm sorry. [00:28:37] Speaker 01: But OPM does certainly acknowledge Ms. [00:28:41] Speaker 01: Garland's departure and her removal on the basis of disability in both of the initial and reconsideration decisions. [00:28:49] Speaker 01: So it was not lost on OPM that that was her situation. [00:28:55] Speaker 01: See that my time. [00:28:57] Speaker 01: It's run out. [00:28:58] Speaker 01: Okay. [00:28:58] Speaker 01: Thank you. [00:28:59] Speaker 03: Thank you Your honors tell us what we're supposed to do with Trevan Because it's the language in Trevan That is harmful to you isn't it? [00:29:25] Speaker 04: I don't think so, though, Judge. [00:29:27] Speaker 04: I don't think you have to do anything with Trevan, which is kind of the crux of our push here. [00:29:34] Speaker 04: I think Trevan and Vinnick and Riles coexist happily. [00:29:37] Speaker 04: I don't think there can be situations, certainly, where there's a tension or difficulties. [00:29:42] Speaker 03: Well, doesn't Trevan have a specific language that says you can rebut the presumption by pointing out the absence of objective evidence? [00:29:49] Speaker 04: But I think what's really important in- Isn't that language in? [00:29:52] Speaker 03: I'm trying to find it in Trevan. [00:29:55] Speaker 04: It is, absolutely. [00:29:56] Speaker 04: But I think a couple of really important distinctions with Trevan. [00:30:00] Speaker 04: In Trevan, OPM presented objective evidence to rebut the applicant's subjective assertions of disability. [00:30:08] Speaker 04: So Trevan's a wholly different circumstance than what we're looking at here. [00:30:11] Speaker 04: Travan has been a presentation of objective evidence to her, but this objective matters. [00:30:17] Speaker 04: So the context of that discussion in Travan is OPM's production. [00:30:22] Speaker 04: Here, there's no such production. [00:30:24] Speaker 03: So it's limiting the absence of objective evidence to the fact situation there? [00:30:29] Speaker 04: I think that's a very important caveat to it. [00:30:32] Speaker 04: Yes, Judge. [00:30:32] Speaker 00: And I think- You're saying, just to make sure I understand, sorry, that in that case, there was objective evidence [00:30:38] Speaker 00: that was introduced that rebutted the subjective evidence that had been presented thus far. [00:30:43] Speaker 04: That's correct, Judge, and that's the context of that discussion in Trevin. [00:30:46] Speaker 04: In Trevin, the big takeaway from us, or that we believe has been Vanek and Riles, is there's this prohibition on the categorical exclusion. [00:30:54] Speaker 04: There's nothing in Trevin, at least to our reading, that prohibits that. [00:30:57] Speaker 04: It's this discussion in Trevin in a factual pattern, a factual framework, that is wholly distinct from Miss Garland's. [00:31:04] Speaker 04: And there's no support in Trevin for this categorical exclusion of evidence that Vennick and Riles flags as inappropriate. [00:31:13] Speaker 03: Have there been some board cases that then you would say misread Trevin? [00:31:18] Speaker 04: Yes. [00:31:19] Speaker 04: I would say that there are. [00:31:19] Speaker 03: Some board cases that took the language that [00:31:22] Speaker 03: Lack of objective evidence is enough you lose, regardless of the fact setting. [00:31:26] Speaker 03: So you would argue those cases were outliers? [00:31:28] Speaker 04: That's correct, Judge. [00:31:29] Speaker 04: I don't have the sites in front of me. [00:31:30] Speaker 04: I noticed a few of those. [00:31:31] Speaker 03: There are a couple there, two or three of them. [00:31:32] Speaker 04: There's a few. [00:31:33] Speaker 04: And I think some of them did, in fact, run with Trevan. [00:31:37] Speaker 03: Do you understand the footnote in Vatican Riles to be supporting what you're saying about [00:31:43] Speaker 03: Why, what the role, the purpose, the function of objective evidence in one of these cases? [00:31:51] Speaker 04: That's correct, Judge. [00:31:53] Speaker 02: And maybe the AJ's decision that Appendix 16 quoting from Angel is that maybe one of the board cases that I think, to use your language, ran with Trevan? [00:32:09] Speaker 04: Yes, I believe that's the case, Judge. [00:32:13] Speaker 04: Yes, and as Judge Clevenger put it out, there's a few of those. [00:32:19] Speaker 04: And speaking of case sites, actually, my counsel kindly provided what I believe would be the site to the previously mentioned good and matter. [00:32:25] Speaker 04: It would be 471 F third, 1275. [00:32:28] Speaker 03: 471 F third which? [00:32:32] Speaker 04: 1275. [00:32:32] Speaker 04: 1235. [00:32:32] Speaker 04: 1275. [00:32:34] Speaker 04: I see my time is concluded. [00:32:38] Speaker 04: Thank you. [00:32:38] Speaker 04: Thank you, Your Honors. [00:32:42] Speaker 02: Both counsel cases submitted.