[00:00:00] Speaker 02:
The next case for argument is McGowan versus OPM, number 24-1891.

[00:00:07] Speaker 02:
Mr. Johnson, whenever you're ready.

[00:00:10] Speaker 03:
May it please the court.

[00:00:11] Speaker 03:
With the court's permission today, I'd like to structure my argument of discussing standard of review regarding this matter initially, then the evidence submitted by the appellant, Mr. Val McGowan, at the court below, and going into the procedural issues that we found that we feel had made the order under review defective.

[00:00:34] Speaker 03:
This is an appeal from the case of disability retirement.

[00:00:38] Speaker 03:
As the courts aware, and as the Supreme Court has stated, this is a somewhat truncated review.

[00:00:44] Speaker 03:
Respondents, of course, brought that matter up in their brief.

[00:00:48] Speaker 03:
Review is allowed under Lindahl versus OPM if there's a substantial departure from important procedural rights, a misrepresentation of the governing legislation, or some like error given to the heart of the determination.

[00:01:02] Speaker 03:
This court, after Lindahl,

[00:01:04] Speaker 03:
issued a pinnate in Riley versus OPM, where it looked at different cases where reviewed was allowed, where it was not allowed, and where it was allowed.

[00:01:13] Speaker 03:
And summarizing them, I think we can say that when it's not allowed is when there's just a weighing of the evidence for disability retirement.

[00:01:21] Speaker 02:
Well, it's the fact of disability, right?

[00:01:23] Speaker 02:
OPM has made a determination that there's no disability.

[00:01:27] Speaker 02:
We can't review that factual determination.

[00:01:29] Speaker 02:
OPM's decision is binding.

[00:01:32] Speaker 02:
on us.

[00:01:33] Speaker 02:
The board could review it under the statute and the board's regulations, but we can't touch it.

[00:01:37] Speaker 02:
So you need to argue specifically what departure from procedural rules or error that goes to the heart of the administrative matter that's at issue.

[00:01:50] Speaker 03:
Well, this court in Moreno, let me go to Van Riken versus Riles, it did look at

[00:01:59] Speaker 03:
an individual there where the courts below said that when the psychiatric claim was presented, stated that the psychiatric evidence is all subjective.

[00:02:11] Speaker 02:
I'm fully aware of that case.

[00:02:12] Speaker 02:
That case stands for the proposition that the board had been applying an incorrect legal standard and requiring objective evidence and not accepting subjective evidence from the claimant.

[00:02:26] Speaker 02:
And so we reversed that and said subjective evidence is also allowed to be submitted.

[00:02:34] Speaker 02:
But it didn't then go on and review whether that subjective evidence proved the disability or not.

[00:02:40] Speaker 02:
I assume it just sent it back to the board.

[00:02:42] Speaker 02:
So that's certainly a legal error.

[00:02:44] Speaker 02:
I didn't read this board's decision as saying there's no objective evidence here.

[00:02:49] Speaker 02:
I read this board's decision as rejecting the evidence from your client as not credible.

[00:02:55] Speaker 02:
What's legally wrong with that?

[00:02:58] Speaker 03:
Well, the only medical evidence submitted was regarding my client's permanent post-traumatic stress disorder.

[00:03:08] Speaker 02:
Right.

[00:03:08] Speaker 02:
And the board found all that evidence to be not credible because it didn't believe your client.

[00:03:12] Speaker 02:
And so there was no evidence for it to overturn OPM's disability determination.

[00:03:18] Speaker 03:
Well, then I will go backwards, Your Honor, in terms of how that evidence was submitted.

[00:03:24] Speaker 03:
If you look at the pretrial stipulations that were submitted prior.

[00:03:28] Speaker 03:
Oh, so you're going to go to the fact that they submitted it somewhat late.

[00:03:33] Speaker 03:
Yes.

[00:03:33] Speaker 03:
That's an abuse of discretion standard, isn't it?

[00:03:37] Speaker 03:
That's a procedural error.

[00:03:38] Speaker 03:
That's the significance of procedural error.

[00:03:40] Speaker 03:
When we did the pretrial stipulations.

[00:03:41] Speaker 02:
Oh, I get it.

[00:03:42] Speaker 02:
You can argue that that was a procedural error.

[00:03:45] Speaker 02:
We give great deference to the board in its determinations of what evidence to accept or not.

[00:03:51] Speaker 04:
I have a question for you on that regard.

[00:03:53] Speaker 04:
So this is relating to the government submitted new evidence and argument at the hearing, right?

[00:04:01] Speaker 04:
Did you raise this issue before the administrative judge?

[00:04:06] Speaker 04:
Because I mean, I reviewed your briefing and the appendix, and I don't see where you did.

[00:04:11] Speaker 03:
It was submitted post-hearing.

[00:04:14] Speaker 04:
I understand, but my question remains.

[00:04:17] Speaker 04:
Did you raise this evidentiary argument before the administrative judge?

[00:04:24] Speaker 04:
That's what I'm asking.

[00:04:27] Speaker 03:
The, what was done at hearing was my client testified regarding his PTSD.

[00:04:34] Speaker 03:
The defense did not raise all these issues that he wasn't, that he didn't offload dead bodies.

[00:04:41] Speaker 03:
Then after the hearing, so if it was, if they didn't submit it at the hearing, we couldn't counter it at the hearing.

[00:04:47] Speaker 03:
When they submitted it all post hearing, these hundred pages.

[00:04:50] Speaker 04:
Okay.

[00:04:51] Speaker 04:
So this is a forfeiture issue, right?

[00:04:54] Speaker 04:
So I'm just asking.

[00:04:56] Speaker 04:
I'm asking because you're complaining to us.

[00:04:59] Speaker 04:
You're asking us to say that the board erred by considering that evidence.

[00:05:05] Speaker 04:
But I'm having a hard time seeing where you even went to the board and said, hey, hey, hey, this is late.

[00:05:12] Speaker 04:
You shouldn't have considered it.

[00:05:13] Speaker 04:
It's not proper for you to consider it.

[00:05:15] Speaker 04:
And so that's hence my question.

[00:05:18] Speaker 04:
I want to know if you, and it's a yes or no question, I want to know if you objected

[00:05:24] Speaker 04:
to the government's late introduction of this evidence, allegedly late, I'll just say late, introduction of this evidence before the administrative judge?

[00:05:33] Speaker 04:
That's what I'm asking you.

[00:05:35] Speaker 03:
My response is yes.

[00:05:36] Speaker 03:
We put it in our post-hearing argument.

[00:05:39] Speaker 03:
They filed first.

[00:05:40] Speaker 03:
We put it in our post-hearing argument that is hearsay evidence.

[00:05:43] Speaker 03:
Did you exclude it?

[00:05:47] Speaker 03:
The terms we listed, of course, are not considered.

[00:05:49] Speaker 03:
That's hearsay evidence, post-hearing.

[00:05:51] Speaker 04:
And you think it's in your post-hearing brief?

[00:05:59] Speaker 04:
Because I looked at your post-hearing brief and also your response to the government's amended post-hearing brief, and I don't see it in there.

[00:06:08] Speaker 03:
Well, they submitted it after hours, so let me... No, I'm asking where your objection is.

[00:06:14] Speaker 04:
I read your post-hearing brief and your response to the government's post-hearing brief at J.A.

[00:06:21] Speaker 04:
318-22 and J.A.

[00:06:23] Speaker 04:
366-67, and I don't see it in there.

[00:06:27] Speaker 04:
Please correct me if I'm wrong.

[00:06:29] Speaker 03:
I stated, if appendix 366, if this amendment is even permissible, brought it up there because- Did you say page 366?

[00:06:39] Speaker 03:
I'm sorry.

[00:06:40] Speaker 03:
Appendix 366.

[00:06:42] Speaker 03:
OK.

[00:06:57] Speaker 03:
I think we termed our post-hearing brief closing argument.

[00:07:01] Speaker 04:
Where is it?

[00:07:03] Speaker 04:
Is it where you say if this amended brief is even admissible?

[00:07:06] Speaker 04:
Is that what you're relying on?

[00:07:11] Speaker 03:
Oh, I'm sorry.

[00:07:11] Speaker 03:
Yes, if the amended brief is permissible.

[00:07:13] Speaker 03:
So we were going through cycles.

[00:07:16] Speaker 03:
And I think this is, I know it's maybe an additional issue.

[00:07:18] Speaker 02:
It's an awfully hard inference for the board to make that you're saying their additional evidence should be excluded altogether.

[00:07:26] Speaker 03:
I think we mentioned it earlier.

[00:07:28] Speaker 03:
Let me find it here.

[00:07:29] Speaker 03:
And I know it definitely had to.

[00:07:31] Speaker 03:
But I think that's part of the problem, Your Honor, is that the trial closed.

[00:07:37] Speaker 03:
This evidence was not during the trial.

[00:07:40] Speaker 03:
This evidence, the judge asked for closing arguments.

[00:07:45] Speaker 03:
This went beyond the trial, and then they submitted.

[00:07:47] Speaker 03:
I'm sorry.

[00:07:48] Speaker 01:
I'm sorry, Your Honor.

[00:07:49] Speaker 01:
Didn't your client bring up this issue during the testimony, during the trial?

[00:07:54] Speaker 01:
This issue about the reason for his PTSD?

[00:07:59] Speaker 03:
Well, we brought up the PTSD and what we argued is that he was in remission from his service PTSD.

[00:08:09] Speaker 03:
What triggered his PTSD was his work environment in 2019 and 2020, the fact that a customer argued with him.

[00:08:18] Speaker 02:
The problem is that the hearing he testified his PTSD came from a specific incident.

[00:08:24] Speaker 02:
And the government put in evidence to show that was not true.

[00:08:29] Speaker 03:
That specific incident was not disabling.

[00:08:33] Speaker 03:
That's our point.

[00:08:37] Speaker 01:
He testified that the incident with the USS Stark was the incident that caused his PTSD.

[00:08:46] Speaker 01:
The government was certainly entitled to respond to that.

[00:08:51] Speaker 03:
The evidence we presented at hearing while he was disabling was that he was arrested on the job in 2019, and those charged were dismissed, and that he had an intercaltecation with a customer in 2019-2020.

[00:09:08] Speaker 02:
That had to do with the fact that the board determined that he lied about the source of his PTSD, and therefore his testimony was incredible.

[00:09:18] Speaker 03:
I would disagree about the lying around.

[00:09:22] Speaker 03:
And that was part of the problem, is that this evidence is difficult to acquire because, and the client informed me, is because of the service ships that were supposed to be in the area and were not.

[00:09:33] Speaker 03:
So what they did is that these are all newspaper hearsay articles that they brought in.

[00:09:38] Speaker 02:
My client tried to bring these medals and accommodations.

[00:09:40] Speaker 02:
Did you seek to file additional evidence to rebut the government's evidence?

[00:09:46] Speaker 03:
Yes, we filed his accommodations, his medals, his service awards, yes.

[00:09:49] Speaker 03:
And none of them show that that ship was where he said it was.

[00:09:52] Speaker 03:
Because that information is not publicly available.

[00:09:55] Speaker 02:
Well, the government submitted a lot of evidence that suggests that that is publicly available.

[00:09:59] Speaker 02:
It suggests it wasn't even close to where he said it was.

[00:10:03] Speaker 03:
Newspaper articles, Your Honor.

[00:10:04] Speaker 03:
That's publicly available evidence.

[00:10:06] Speaker 03:
That's hearsay evidence, Your Honor.

[00:10:08] Speaker 03:
Are we going to determine trials?

[00:10:10] Speaker 03:
Submitted by the MSPB.

[00:10:12] Speaker 03:
hearsay evidence is allowed, but to bring in newspaper articles, if it's another witness testifying about something that's permissible hearsay, these are newspaper articles.

[00:10:21] Speaker 02:
You didn't move to exclude any of that evidence.

[00:10:23] Speaker 03:
We didn't, Your Honor.

[00:10:25] Speaker 03:
Let me go.

[00:10:28] Speaker 02:
I mean, the problem for you is even if you preserved an argument to exclude that evidence, the MSPB's decision to accept it is an abuse of discretion standard.

[00:10:39] Speaker 02:
And how is it an abuse of discretion for them to consider this evidence that you haven't questioned that it stands for what it says, but just that it's hearsay and somehow there is this secret

[00:10:53] Speaker 02:
evidence out there that would show the shift actually was what your client would say.

[00:10:57] Speaker 03:
Because in the trials I've participated in, Your Honor, in civil trials, we frame everything by the pretrials.

[00:11:03] Speaker 02:
This is not a trial.

[00:11:05] Speaker 02:
This is an administrative action at the MSPB.

[00:11:08] Speaker 02:
The rules of evidence don't apply to them.

[00:11:10] Speaker 02:
They have far greater discretion than district courts do in civil trials.

[00:11:18] Speaker 03:
I understand it, Your Honor, but this is impeachment evidence that could have been brought up.

[00:11:21] Speaker 03:
Their defenses that they enlisted was completely different from this, Your Honor.

[00:11:25] Speaker 03:
I think we have your argument, Your Honor.

[00:11:27] Speaker 02:
We'll hear from the government.

[00:11:42] Speaker 02:
Do you know why this evidence was submitted so late?

[00:11:46] Speaker 00:
Your Honor, my understanding is that Mr. McGowan testified during the hearing for the first time that the cause of his PTSD was this USS Stark incident where he alleged to have been offloading dead bodies after the bombing.

[00:12:03] Speaker 00:
But that's my understanding of the first time that it had been raised.

[00:12:07] Speaker 02:
First time that OPM knew about it.

[00:12:09] Speaker 02:
Here's my question is, doesn't he have a VA service-connected PTSD rating?

[00:12:16] Speaker 00:
I He may have a VA rating at night believe he also may have a SS a Social Security Administration disability rating however the OPM

[00:12:26] Speaker 00:
Disability retirement standards are somewhat different.

[00:12:30] Speaker 02:
Well, I understand the standards for disability retirement are different.

[00:12:33] Speaker 02:
But I'm just curious as to why we're reopening the question of whether he has PTSD at all.

[00:12:42] Speaker 02:
Because the VA has already found he has some form of PTSD.

[00:12:46] Speaker 02:
And you said SSA has as well.

[00:12:49] Speaker 02:
Is it just that his testimony was

[00:12:54] Speaker 02:
because there was some indicators that it wasn't entirely true enough for the board to discredit the remainder of his testimony about the effect of his PTSD on his disability?

[00:13:08] Speaker 00:
Your Honor, I have, I guess, two responses to your question.

[00:13:11] Speaker 00:
I believe that the MSPB has the ability to review whether Mr. McGowan had both a disabling condition and whether there was a nexus between the disabling condition and his job duties.

[00:13:24] Speaker 00:
OPM found that he did not have a disabling condition that did not have a nexus to his job duties.

[00:13:31] Speaker 00:
The administrative judge in reviewing all of the evidence before him concluded that Mr. McGowan's testimony in this incident was so discrediting that it not only discredited the subjective medical evidence, but also the medical evidence that was provided by the medical providers.

[00:13:52] Speaker 00:
in the face of the substantial amount of not credible evidence weighed against, for example, the testimony of Mr. McGowan's supervisor that testified that he could perform his job and that the job was not as stressful as he had portrayed it, the administrative judge ultimately concluded that he had not met his burden of a disabled condition that affected his job.

[00:14:16] Speaker 02:
We can't review any of those questions.

[00:14:18] Speaker 00:
Yes, your honor, that's correct.

[00:14:20] Speaker 00:
This court cannot review the factual underpinnings of OPM's disability determination, which is what he challenged.

[00:14:26] Speaker 01:
But isn't that inconsistent with his PTSD rating?

[00:14:32] Speaker 01:
We can't really review that, but it just seems to me to be entirely inconsistent with his PTSD.

[00:14:41] Speaker 00:
Well, Your Honor, again, the OPM's determination for eligibility to disability retirement is slightly different than the considerations for the VA or the Social Security Administration.

[00:14:57] Speaker 00:
And so he could, in theory, have a disability for VA purposes and still not be entitled to disability.

[00:15:07] Speaker 02:
It's not in the record what his rating is for the VA.

[00:15:09] Speaker 00:
I don't believe that's in the record.

[00:15:12] Speaker 02:
When you can have a PTSD rating for the VA, and it's still not disabling to the extent that it would disable you under OPM's regulations, it might only be 10% or 20% or whatever the schedule provides.

[00:15:23] Speaker 02:
It might not be total.

[00:15:25] Speaker 00:
Yeah, that's correct, Your Honor.

[00:15:27] Speaker 00:
There's a number of factors under 5 USC 8337 and 5 CFR 1201.56 that sort of

[00:15:37] Speaker 00:
explain what the requirements specifically for OPM disability retirement are.

[00:15:43] Speaker 00:
And I think it has to be, have it been disabling for more than a year, and there has to be a nexus between the disability and the job duties.

[00:15:53] Speaker 00:
And that's it.

[00:15:54] Speaker 02:
CSD is not automatically disabling.

[00:15:57] Speaker 02:
That is correct.

[00:15:58] Speaker 02:
I think people can and do.

[00:16:01] Speaker 02:
work and remain employed with PTSD?

[00:16:04] Speaker 00:
That's correct, Your Honor.

[00:16:05] Speaker 00:
And in fact, the OPM decision on reconsideration that is in the record here does explain that he was actually

[00:16:18] Speaker 00:
continuing to work at the time of OPM's reconsideration decision in 2021.

[00:16:25] Speaker 02:
But let me ask you this.

[00:16:26] Speaker 02:
I know most of this, you think, is beyond our jurisdiction review.

[00:16:30] Speaker 02:
To the extent you can characterize his argument as the board applied an improper or the board's admission of this evidence was somehow an abuse of discretion or goes against whatever the language and lend all about procedural stuff, we can review that, right?

[00:16:48] Speaker 00:
That is correct, Your Honor.

[00:16:49] Speaker 00:
The court can review important procedural errors under an abusive discretion standard that also have to be prejudicial harmful.

[00:17:01] Speaker 00:
What the administrative judge did hear was simply not an abuse of discretion.

[00:17:04] Speaker 00:
As we've already discussed, Mr. McGowan himself raised the cause of his PTSD during his hearing.

[00:17:11] Speaker 00:
And the administrative judge simply allowed OPM to rebut

[00:17:16] Speaker 00:
those statements that were made during the hearing in its post-hearing briefs.

[00:17:21] Speaker 00:
And the administrative judge's pretrial order also does, while it holds the parties to their pretrial submissions, it also has an exception for good cause shown.

[00:17:32] Speaker 00:
And that's, I think, what the administrative judge was doing here, was allowing OPM to rebut the testimony that was raised during the hearing.

[00:17:44] Speaker 00:
That's just simply not an abuse of discretion.

[00:17:46] Speaker 00:
Unless your honors have further questions, we would ask the court to dismiss the appeal or alternatively to affirm the MSPB.

[00:17:58] Speaker 00:
Thank you, your honors.

[00:18:03] Speaker 02:
Mr. Johnson, you have some time left.

[00:18:09] Speaker 03:
Thank you.

[00:18:10] Speaker 03:
In addressing what respondents have stated, they stated that the first time that the offloading of the bodies was meant was at trial.

[00:18:19] Speaker 03:
It's in the medical records, Your Honor.

[00:18:21] Speaker 03:
They're trying to have it both ways.

[00:18:23] Speaker 03:
They're saying it was at trial when the medical records of the psychiatrist.

[00:18:26] Speaker 02:
I'm sorry.

[00:18:27] Speaker 02:
What's in the medical records is

[00:18:31] Speaker 02:
recounting that to his providers?

[00:18:34] Speaker 02:
The medical record was that when he had filed a worker's compensation claim after he had answered my question, is what's in the record independently verified by a document, or is it just him putting that fact in the medical records?

[00:18:47] Speaker 03:
It's what he told a doctor.

[00:18:49] Speaker 03:
My point is that they say that he brought it up at trial as a reason for the late evidence.

[00:18:54] Speaker 03:
But if that was their issue, they were aware of it before trial.

[00:19:00] Speaker 03:
OK.

[00:19:06] Speaker 03:
Your Honor, they did go into some of the items which... Oh, excuse me.

[00:19:14] Speaker 04:
I had asked if you had objected to the administrative judge's allowance of this evidence from the government, which you have complained is new and should not have been allowed, or is hearsay.

[00:19:29] Speaker 04:
And did you find a site or anything to support that this was raised?

[00:19:34] Speaker 03:
I know it was said by...

[00:19:37] Speaker 03:
post-hearing.

[00:19:37] Speaker 03:
In some reason, my appendix is off, but I would know.

[00:19:45] Speaker 03:
We did both the closing argument and then the response to their amended brief.

[00:19:50] Speaker 04:
So you don't have a site right now?

[00:19:53] Speaker 03:
I'm sorry, not right now, Your Honor.

[00:20:04] Speaker 03:
Are there any further questions from the court?

[00:20:08] Speaker 02:
Thank you.

[00:20:08] Speaker 02:
Thank you for your time.