[00:00:01] Speaker 04:
The first case for argument this morning is 24-1502, Herman versus DOJ.

[00:00:07] Speaker 04:
Mr. Friedman, whenever you're ready.

[00:00:11] Speaker 01:
May it please the court?

[00:00:16] Speaker 01:
This appeal is made after the Merit Citizens Protection Board.

[00:00:27] Speaker 01:
issued a decision stating that Herman, who had been employed by the Bureau of Prisons and who initiated a whistleblower protection act based on retaliation,

[00:00:47] Speaker 01:
did not show by preponderant evidence that he had a reasonable belief that his disclosures evidenced any of the situations specified in the statute.

[00:01:01] Speaker 01:
The statute involves

[00:01:05] Speaker 04:
The statute contains a list of... So what is your, in terms of your, well firstly let me ask you a preliminary question that this case is unusual at least to the extent that it's been litigated over 20 years, a very long period of time and that doesn't seem to have been directly the fault of your client.

[00:01:27] Speaker 04:
But since your client according to the record retired in 2015

[00:01:34] Speaker 04:
I'm not clear what the relief you sought back when you filed this, but what kind of relief would be available to your client, even if there were some merit found here?

[00:01:49] Speaker 01:
This is not an issue that I don't believe is germane to the proceedings, but I've represented him for 17, 18 years now.

[00:02:04] Speaker 01:
And I was an advocate for him.

[00:02:06] Speaker 01:
In terms of equitable relief, he's no longer with the agency.

[00:02:15] Speaker 01:
So the only type of remedy is a self-serving remedy as it affects me, which is all of the sweat and toil that has been

[00:02:28] Speaker 01:
put into this case to show that the action taken against Mr. Herman was improper.

[00:02:36] Speaker 04:
Well, along those lines, I mean, we all agree it's been going on a long time.

[00:02:41] Speaker 04:
If arguably you were to prevail on the question before us today, which is whether there was a protected disclosure, am I wrong that it would just result in a remand and then the agency would be able to come forward and say,

[00:02:57] Speaker 04:
prove by clearing convincing evidence that it would have taken whatever actions he alleged were taken against him?

[00:03:02] Speaker 01:
Unfortunately, the answer is yes.

[00:03:07] Speaker 01:
The agency had multiple opportunities to present any evidence whatsoever that the actions that had been

[00:03:16] Speaker 01:
allegedly taken against Mr. Herman, which consisted of a laundry list of actions that the agency has never challenged as not being personal actions.

[00:03:32] Speaker 01:
Since Mr. Herman is no longer with the agency, it would just be to establish that whatever happened to him

[00:03:43] Speaker 01:
was improper.

[00:03:45] Speaker 01:
Unfortunately, the Whistleblower Enhancement Protection Act was not in force at that time.

[00:03:55] Speaker 01:
Perhaps Mr. Herman would not have retired and would have sought elements of damages that were personal to him.

[00:04:06] Speaker 01:
But because this case is under the Whistleblower Protection Act,

[00:04:12] Speaker 01:
The only remedies would be equitable in nature.

[00:04:17] Speaker 01:
And since he's no longer with the agency, that only leaves the issue of attorney fees.

[00:04:25] Speaker 01:
That's it.

[00:04:25] Speaker 04:
But just to follow up, what I said before is that in order to even be eligible for attorney's fees, hypothetically, you would need to prevail on this case.

[00:04:35] Speaker 04:
Then you would need to go back in the remand and prevail on that case subject to appeals.

[00:04:42] Speaker 04:
I don't want to see you in 10 years.

[00:04:44] Speaker 01:
You are absolutely right.

[00:04:47] Speaker 01:
But how many bites from the apple does the agency have?

[00:04:50] Speaker 01:
The agency was ordered in the second reported decision that the agency had the affirmative obligation to show that the personal actions, which is uncontested,

[00:05:08] Speaker 01:
were justified by clear and convincing evidence.

[00:05:11] Speaker 01:
The agency chose not to follow the directive of the court, but to allege that there was no case at the outset.

[00:05:20] Speaker 01:
And the agency's argument, which is the subject of this matter now, is that Herman

[00:05:28] Speaker 01:
did not have a reasonable belief.

[00:05:31] Speaker 01:
He personally didn't have a reasonable belief.

[00:05:34] Speaker 01:
So what's wrong with that?

[00:05:37] Speaker 04:
I mean, you're challenging that finding by the administrative judge.

[00:05:40] Speaker 04:
What was the error in their analysis?

[00:05:45] Speaker 01:
Well, what I'm challenging is the

[00:05:48] Speaker 01:
I don't believe that the administrative judge ever ruled on that.

[00:05:54] Speaker 01:
The board, six years after the hearing, issued a ruling that Herman didn't show by preponderant evidence that he had a reasonable belief.

[00:06:11] Speaker 01:
Herman was a reasonable man.

[00:06:14] Speaker 01:
There was nothing in the record, absolutely nothing, which challenged Herman's belief.

[00:06:22] Speaker 01:
No one said that Herman was not sincere.

[00:06:25] Speaker 04:
The question isn't whether or not he had the belief.

[00:06:27] Speaker 04:
The question is whether it was a reasonable belief.

[00:06:30] Speaker 04:
My recollection is that the A.J.

[00:06:32] Speaker 04:
did make findings based on what Mr. Herman had said at some point about the situation of his job and having to establish neutrality or whatever so.

[00:06:42] Speaker 01:
there was no citation to the record of any testimony.

[00:06:47] Speaker 01:
Herman battled because he had a belief that he was wronged.

[00:06:53] Speaker 01:
And he identified the three specific disclosures that have never been challenged.

[00:07:01] Speaker 01:
So number one, the agency is not saying that

[00:07:08] Speaker 01:
Herman didn't make protected disclosures.

[00:07:11] Speaker 01:
The agency has never alleged that the personnel actions didn't fall within the ambit of the statute.

[00:07:21] Speaker 01:
And the presidential decision that was issued back in 2011 said that Herman, or that a reasonable person,

[00:07:33] Speaker 01:
made these disclosures.

[00:07:36] Speaker 01:
So the agency and the board in its final decision came up with this statement that Herman didn't show by preponderant evidence that he personally reasonably believed that what he was raising was a legitimate gripe that fell within the

[00:08:02] Speaker 01:
purview of the statute.

[00:08:04] Speaker 01:
And there's no basis.

[00:08:05] Speaker 01:
There's no citation to the record.

[00:08:08] Speaker 01:
And that's not what the law says.

[00:08:11] Speaker 01:
The law says that if there are disclosures that have been reasonably made and no one challenged that, there was a prima facie case.

[00:08:22] Speaker 01:
Then the affirmative burden shifts to the agency to show by

[00:08:28] Speaker 01:
clear and convincing evidence.

[00:08:29] Speaker 01:
The agency showed nothing.

[00:08:31] Speaker 01:
There was no evidence that the agency said that the personnel actions taken against them, and there were a laundry list of personnel actions, were justified by any factual basis.

[00:08:51] Speaker 01:
So the agency's

[00:08:55] Speaker 01:
The board is challenging the veracity of Herman saying that he created a lawsuit that he didn't believe in and that he wasn't a reasonable person.

[00:09:13] Speaker 04:
Well, Jay, do you want to look at Appendix 12, App X 12?

[00:09:19] Speaker 04:
Because at least in that portion of the decision, it does refer to his hearing testimony at 203.

[00:09:29] Speaker 04:
Know what I'm referring to?

[00:09:31] Speaker 04:
I'm sorry.

[00:09:32] Speaker 04:
Appendix 12.

[00:09:35] Speaker 04:
Is it the board's opinion?

[00:09:37] Speaker 04:
Yeah, it's the board's final opinion.

[00:09:40] Speaker 04:
It does refer to his hearing testimony and the transcript of the hearing.

[00:09:51] Speaker 01:
I'm sorry.

[00:09:53] Speaker 01:
I didn't mean to cut you off.

[00:09:56] Speaker 01:
If you look at appendix 11,

[00:09:59] Speaker 01:
This is the basis of the agency's argument.

[00:10:03] Speaker 01:
The appellant did not show by preponderant evidence that he had a reasonable belief that his disclosures evidenced any of the situations specified in 2302.

[00:10:14] Speaker 01:
OK, so he specified a whole host of actions that were taken against him.

[00:10:27] Speaker 01:
This was after he identified specific disclosures that he had made.

[00:10:35] Speaker 01:
The list of issues identified by 2302, which Herman specifically referenced,

[00:10:50] Speaker 01:
is on page 6 of the opening brief.

[00:10:53] Speaker 01:
He said, reduce teleworking.

[00:10:55] Speaker 04:
I understand that.

[00:10:57] Speaker 01:
I understand.

[00:10:59] Speaker 01:
There are 15 different actions that fell under the ambit of personnel actions.

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

[00:11:12] Speaker 01:
And he tied them to

[00:11:15] Speaker 01:
specific disclosures that the board in its presidential decision said these are disclosures that a reasonable person could make.

[00:11:27] Speaker 01:
So did Herman just come up with fictitious

[00:11:34] Speaker 01:
fictitious disclosures just to say I am not a reasonable person and I didn't reasonably believe that the disclosures which the board deemed to be reasonable were actual disclosures that I didn't believe in.

[00:11:54] Speaker 01:
The board is saying Herman is not a reasonable person and no one challenged him.

[00:12:00] Speaker 01:
There's nothing in the record.

[00:12:02] Speaker 01:
So what the board did was make credibility findings when the board was not even...

[00:12:12] Speaker 02:
Isn't it when you look at the reasonable person standard, I had understood that to mean that the board was saying from the objective, from the standpoint of an objective standpoint and not holding that Mr. Herman was unreasonable.

[00:12:28] Speaker 02:
I just want to make sure that's very clear on the record.

[00:12:31] Speaker 02:
I don't think there's a holding that he was unreasonable.

[00:12:34] Speaker 02:
I think it's that you have to look at it from an objective standard and that's what the holding was.

[00:12:40] Speaker 01:
Do you agree with that?

[00:12:41] Speaker 01:
It is an objective standard, number one, but the board, without participating in the proceedings and working at the administrative record and not citing anything in the administrative record, said, we feel that Herman was not reasonable.

[00:13:01] Speaker 01:
Number one, it's without the authority of the board.

[00:13:07] Speaker 01:
The board was not the fact finder in this case.

[00:13:11] Speaker 01:
And number two, the board was not present at the hearing.

[00:13:16] Speaker 01:
The board didn't raise the issue of, well, how could you determine that what you said was reasonable?

[00:13:30] Speaker 01:
When Herman said that there was a Privacy Act violation, there was either a Privacy Act violation or not.

[00:13:46] Speaker 01:
And why would Herman raise it if he didn't believe that they were violating his rights?

[00:13:53] Speaker 04:
I think we take your argument.

[00:13:54] Speaker 04:
You're into your rebuttal time, so why don't we save it.

[00:13:59] Speaker 01:
Thank you.

[00:14:12] Speaker 00:
Good morning and may it please the court.

[00:14:15] Speaker 00:
The board properly denied corrective action in this IRA appeal because Mr. Herman failed to prove a prima facie case that he made protected disclosures.

[00:14:27] Speaker 00:
Now on appeal, Mr. Herman has a lot of arguments which are fully addressed in our reply brief, most of which did not come up today, so I'm not going to belabor those.

[00:14:37] Speaker 00:
There does not seem to be much left of this appeal after Mr. Herman's three-page reply brief, so I'm just going to start there if that's okay.

[00:14:47] Speaker 04:
Can I ask you a preliminary question about these cases?

[00:14:50] Speaker 04:
Sure.

[00:14:50] Speaker 04:
Because we see a fair number of them.

[00:14:52] Speaker 04:
Yes.

[00:14:55] Speaker 04:
based on my own anecdotal experience, that in most of the cases, the board allides the protected disclosure.

[00:15:03] Speaker 04:
And it sort of gives that up.

[00:15:05] Speaker 04:
And they start with whether the agency has established by clearing convincing evidence that they would have taken the action anyway.

[00:15:12] Speaker 00:
That's actually what the administrative judge initially did in government three.

[00:15:17] Speaker 04:
How does that decision get made?

[00:15:20] Speaker 04:
Does the agency come in and press?

[00:15:23] Speaker 04:
We're not going to contest the protected disclosure and let's just get on to the burden we have on clear and convincing evidence?

[00:15:30] Speaker 04:
Or does the board just decide at the end of the day which wants to make it stand?

[00:15:37] Speaker 00:
Those issues were all fully contested by the agency before the administrative judge.

[00:15:43] Speaker 00:
exercising the administrative judge's discretion in Herman 3, that judge saw fit.

[00:15:53] Speaker 00:
There were multiple administrative judges throughout this odyssey, but that administrative judge determined that it would be more efficient to bifurcate the prima facie case from the clear and convincing because I guess in the administrative judge's view,

[00:16:12] Speaker 00:
that would be more efficient to just look at the clear and convincing and then prima facie didn't matter.

[00:16:18] Speaker 00:
And the board said in Herman IV, there's some more things to do and look at the prima facie case.

[00:16:26] Speaker 00:
So that's how it came back down.

[00:16:28] Speaker 00:
There were multiple round trips to the board which really bent over backwards to ensure a fair process for Mr. Herman who ultimately didn't prove his case.

[00:16:39] Speaker 04:
And just on the point your friend made in response to a question, which is all that's left here in terms of relief, he said, was attorney's fees.

[00:16:50] Speaker 04:
I should know this, but attorney's fees under the board, is this under EJA if he prevails, or is this just regular attorney's fees?

[00:16:58] Speaker 00:
It's regular attorney's fees.

[00:17:00] Speaker 00:
EJA fees would apply to fees incurred in this court.

[00:17:04] Speaker 00:
I don't think EJA applies to MSPB proceedings, but that's not something I've studied, but that's my general understanding.

[00:17:15] Speaker 03:
Is there a provision allowing a successful claimant before the board to get attorney's fees?

[00:17:22] Speaker 03:
And if so, what is it?

[00:17:23] Speaker 03:
And what are the standards?

[00:17:25] Speaker 03:
And as an Article III matter, is the possibility of fees enough for us to have a live case of controversy?

[00:17:34] Speaker 03:
Or does there have to be merits relief available, something other than the certificate that says you, the plaintiff, were right.

[00:17:46] Speaker 00:
Yeah, I can't from top of mind tell you the statute, but my general understanding is that the board can essentially award make-all relief.

[00:17:58] Speaker 00:
And that would include attorney's fees before the board.

[00:18:01] Speaker 00:
But as for Article 3, this was something, it's a really interesting question and one that we actually thought long and hard about before we filed our brief.

[00:18:12] Speaker 00:
and ultimately determined, well, the statute also potentially provides for damages, remedies, and things like that which are now conceded not to be at issue here.

[00:18:27] Speaker 00:
If it was clear at that time,

[00:18:30] Speaker 00:
that this case was just about attorney's fees.

[00:18:33] Speaker 00:
We might have made an Article III standing argument.

[00:18:36] Speaker 03:
What about just correcting the employment record if the plaintiff wins?

[00:18:40] Speaker 00:
There's nothing to correct, Your Honor.

[00:18:44] Speaker 00:
That's what's really unusual about this case.

[00:18:50] Speaker 00:
And the whistleblower claim in this case is nothing really happened to Mr. Herman.

[00:18:57] Speaker 00:
Somebody questioned his objectivity and it went nowhere.

[00:19:01] Speaker 00:
He got a letter of counseling that was acknowledged in the normal personnel evaluation process and it was withdrawn.

[00:19:10] Speaker 03:
Do we have an issue in front of us whether the actions that are alleged to be personnel actions under 2302 are in fact personnel actions?

[00:19:22] Speaker 03:
I thought the BHA and the board said, we have personnel actions in front of us.

[00:19:29] Speaker 00:
Yes, there are marginal personnel actions that really didn't make a significant difference in any aspect of Mr. Herman's career.

[00:19:39] Speaker 00:
And he doesn't claim otherwise.

[00:19:40] Speaker 03:
Can I switch topics to what I think was the core of what Mr. Friedman was arguing?

[00:19:51] Speaker 03:
The phrase reasonable belief has a belief component and the reasonableness of it.

[00:19:57] Speaker 03:
The belief component is self-evidently a fact matter.

[00:20:02] Speaker 03:
Is the reasonableness a fact matter or a law matter?

[00:20:06] Speaker 03:
Because what you have to believe is certain things about whether there was a violation of law, that's one standard, whether there was an abuse of authority.

[00:20:16] Speaker 03:
Abuse of authority has to be, I assume, that's a legal standard for whether the agency is doing something outside of what it should be doing or how it should be doing it.

[00:20:31] Speaker 03:
Because to a large extent, I think what we've heard from Mr. Friedman is the belief is a factual matter.

[00:20:40] Speaker 03:
There's not really any dispute that he believed these things.

[00:20:44] Speaker 03:
So then I think he was focusing very much on what is the record that would support a factual determination that Mr. Herman was

[00:20:56] Speaker 03:
I keep thinking, is that really a fact question?

[00:20:59] Speaker 03:
I've spoken enough.

[00:21:00] Speaker 00:
Sure, Your Honor.

[00:21:02] Speaker 00:
I take your questions there.

[00:21:07] Speaker 00:
What is a reasonable belief and what's the factual record?

[00:21:12] Speaker 00:
As far as a reasonable belief goes, what would an objective observer who knew what Mr. Herman knew

[00:21:23] Speaker 00:
think or believe in that situation.

[00:21:26] Speaker 03:
And is that question a legal question or a factual question?

[00:21:31] Speaker 03:
Have we said?

[00:21:32] Speaker 03:
I don't think your recitation of the standard review in your brief, unless I'm just not remembering, said that that is a legal determination.

[00:21:47] Speaker 00:
No, Your Honor, it is a fact question because you have to look at what the employee actually knew in that particular situation.

[00:21:58] Speaker 02:
Do you know that from any case law or anything you're relying on or is it more from a feel?

[00:22:07] Speaker 02:
You know, and the reason why I ask that is we might not have addressed this specific issue in this context, but surely there's case law out there that talks about when you are in other contexts of the law and you're looking at what does an objective or reasonable person or objective outsider believe, it could be that there's underlying issues of fact, but it's an ultimate question of law.

[00:22:34] Speaker 00:
If I'm not mistaken,

[00:22:37] Speaker 00:
I believe LeChance may address this.

[00:22:44] Speaker 00:
I know the MSPB cites a number of cases for that proposition as well.

[00:22:50] Speaker 00:
Those may have been board cases.

[00:22:53] Speaker 04:
Well, what proposition?

[00:22:55] Speaker 00:
That it's a reasonable observer for purposes of 2302B8 is an

[00:23:04] Speaker 00:
what a reasonable person would believe if they knew what the employee knew.

[00:23:11] Speaker 02:
And it's a question of what factor law?

[00:23:16] Speaker 02:
You're saying chance provides the standard?

[00:23:18] Speaker 00:
Yes.

[00:23:19] Speaker 02:
And what is that standard?

[00:23:21] Speaker 02:
Fact?

[00:23:22] Speaker 00:
Yes.

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

[00:23:23] Speaker 00:
Yes, indeed.

[00:23:24] Speaker 00:
Yes, indeed.

[00:23:25] Speaker 02:
I just wanted to confirm that.

[00:23:26] Speaker 00:
Sure.

[00:23:27] Speaker 00:
And Mr. Herman suggests that the administrative judge who

[00:23:33] Speaker 00:
receives all of Mr. Herman's attention.

[00:23:36] Speaker 00:
He doesn't really even challenge the board decision in his briefs, which is curious.

[00:23:44] Speaker 00:
He doesn't really present a challenge to the board's final decision, but he suggests that the administrative judge never address this, but

[00:23:53] Speaker 00:
The administrative judge clearly did on pages 97 through 107 of the appendix in Herman 5, what we've called Herman 5.

[00:24:05] Speaker 00:
And the administrative judge reiterated that it was affirming those holdings in Herman 7 at 141 of the appendix.

[00:24:15] Speaker 00:
And then the board also articulated and applied the same reasonable leaf standard

[00:24:21] Speaker 00:
on pages 9 through 19 of the appendix.

[00:24:25] Speaker 00:
And back to Judge Toronto, your question about what evidence in the record was germane to that particular issue.

[00:24:36] Speaker 00:
The discussion in Mr. Herman's testimony is on pages 387 through 390.

[00:24:43] Speaker 00:
It starts on 387 that talks about

[00:24:50] Speaker 00:
his understanding that his object he understood he knew that these reviews had to be unbiased and it would be appropriate for someone who thought that there was an unbiased review going on to notify a supervisor for the reasons and perhaps the motivations for why there was

[00:25:19] Speaker 00:
a biased review.

[00:25:21] Speaker 00:
That was apparently what vexed Mr. Herman so much that someone would question his objectivity that we have been looking at perhaps

[00:25:40] Speaker 00:
an 18-year procedural history of a case where ultimately there was no serious ramifications that followed these disclosures.

[00:25:52] Speaker 00:
Mr. Herman retired without incident seven years after the alleged protected disclosures in question.

[00:26:02] Speaker 00:
Mr. Herman does not provide any basis for this court to disturb the board's fact-intensive decision and the court should affirm.

[00:26:11] Speaker 00:
Thank you.

[00:26:18] Speaker 01:
Mr. Edelcheck started out with the declarative statement that Mr. Herman failed to prove a prima facie case.

[00:26:30] Speaker 01:
That is contrary to the evidence of record.

[00:26:34] Speaker 01:
The agency first attempted

[00:26:38] Speaker 01:
to blunt Mr. Herman's whistleblower appeal after he filed.

[00:26:45] Speaker 01:
The agency issued a decision either denying which was improper or dismissing the appeal for failure to state a prima facie case.

[00:27:02] Speaker 01:
That went to the board, the first

[00:27:05] Speaker 01:
Significant board decision was the 2011 decision.

[00:27:10] Speaker 01:
It's a reported decision.

[00:27:12] Speaker 01:
It's a presidential decision.

[00:27:14] Speaker 04:
But you're not contending, are you, that it decides dispositively the question of whether or not... You're not contending that they decided that he had made a protected disclosure?

[00:27:27] Speaker 04:
Because that wasn't an issue before them.

[00:27:29] Speaker 01:
No, you are correct.

[00:27:33] Speaker 01:
The board did not

[00:27:35] Speaker 01:
render a substantive decision, the board rendered a decision stating that Mr. Herman established a prima facie case.

[00:27:45] Speaker 01:
A non-frivolous allegation presented a non-frivolous allegation.

[00:27:50] Speaker 01:
Right, but he had presented a non-frivolous allegation which had supported his prima facie case

[00:28:00] Speaker 01:
and that then the burden shifts to the agency from a conceptual standpoint.

[00:28:06] Speaker 03:
And it seems to me that maybe there's some confusion about the following.

[00:28:14] Speaker 03:
So there's the jurisdictional threshold question.

[00:28:18] Speaker 03:
That's what was decided in 2011.

[00:28:20] Speaker 03:
The jurisdictional question threshold simply says there's enough to go to a hearing.

[00:28:27] Speaker 03:
It does not.

[00:28:28] Speaker 03:
shift the burden to the government to make proof.

[00:28:33] Speaker 03:
Once you get to the hearing, you have to make the initial proof of the prima facie case.

[00:28:41] Speaker 03:
So the fact that the jurisdictional threshold was crossed, a non-frivolous allegation, doesn't mean that the burden shifted to the government.

[00:28:53] Speaker 01:
Why is that wrong?

[00:28:58] Speaker 01:
what you are conveying.

[00:29:00] Speaker 01:
It's my understanding and I may not understand.

[00:29:04] Speaker 01:
fully what the law says.

[00:29:07] Speaker 01:
But once a prima facie case is established, then an individual who is the alleged whistleblower doesn't have to prove his case by a preponderance of the evidence.

[00:29:19] Speaker 02:
The problem here is that a prima facie case wasn't established, nor did anybody ever rule that a prima facie case was established.

[00:29:27] Speaker 02:
There was no ruling

[00:29:28] Speaker 02:
in your favor that a prima facie case was established.

[00:29:33] Speaker 02:
The only ruling in your favor was that there were non-frivolous allegations sufficient to give the board jurisdiction.

[00:29:43] Speaker 01:
Correct.

[00:29:45] Speaker 01:
And then there were allegations made.

[00:29:49] Speaker 01:
The agency then would have to show by clear and convincing evidence

[00:29:56] Speaker 01:
What the board is saying is the agency doesn't have to show anything that the whistleblower has to prove his case by preponderant evidence.

[00:30:11] Speaker 04:
How does he prove... Well, do you think that's not correct under the statute that if you allege that you engaged in protected activity,

[00:30:17] Speaker 04:
that you can just say that and the burden shifts?

[00:30:20] Speaker 04:
I mean, don't you think the petitioner does have a burden to establish that his activity was protected?

[00:30:25] Speaker 01:
What my understanding is, is when a prima facie case is established, that is where there is a reasonable belief that there had been disclosures made

[00:30:45] Speaker 01:
and that personnel actions flowed from those disclosures.

[00:30:52] Speaker 01:
That is my understanding.

[00:30:54] Speaker 04:
But the board concluded that he had not established that he had a reasonable belief.

[00:31:03] Speaker 01:
I'm sorry.

[00:31:05] Speaker 01:
The board was saying that Herman did not have a reasonable belief

[00:31:14] Speaker 01:
that the disclosures, no one is arguing that the disclosures that he made fell within the category of disclosures.

[00:31:31] Speaker 01:
So if he made the disclosures, then the agency would have to say, you're not a reasonable person, or you're lying.

[00:31:41] Speaker 01:
You are coming up with legitimate disclosures, but you did not intend to, and it doesn't relate to you at all, and there's no basis for you to have made the disclosures.

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

[00:32:01] Speaker 04:
I think we're well over time.

[00:32:03] Speaker 04:
We have your argument.

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

[00:32:05] Speaker 04:
We thank both sides.