[00:00:01] Speaker 04:
Our next case is John Ryan versus the Secretary of Veterans Affairs, 2024, 1814.

[00:00:09] Speaker 04:
Mr. Noah Groke.

[00:00:25] Speaker 02:
May it please the court.

[00:00:27] Speaker 02:
The VA premised its removal of John Ryan on just eight patient encounters.

[00:00:35] Speaker 02:
Just eight patient encounters over a 14-year career with the VA as a licensed social worker.

[00:00:45] Speaker 02:
Eight patient encounters compared to 14 years.

[00:00:50] Speaker 02:
Just eight patient encounters over the seven-year period

[00:00:55] Speaker 02:
that Mr. Ryan had direct responsibility for the care of veteran 7-918, we call him with all due respect, since it's private.

[00:01:05] Speaker 02:
Eight patient encounters and a seven.

[00:01:07] Speaker 01:
How does that correspond to, and I don't know the details as well as you, there were 14 specifications in this case and six dealing with inappropriate conduct.

[00:01:18] Speaker 02:
Yes, and that arises from a total of eight patient encounters, because there were multiple specifications from one patient encounter.

[00:01:26] Speaker 01:
OK, so what is the point of your argument that he?

[00:01:31] Speaker 02:
That it goes to the reasonableness, that there was a lack of reasonableness in the VA's decision making, which is required under the substantial evidence prong that says, you must have adequate evidence such as a reasonable mind

[00:01:47] Speaker 02:
would accept the conclusions of careless performance.

[00:01:52] Speaker 02:
So that combined with the fact that in these eight patient encounters, there is no evidence whatsoever from the first line treaters in the PSTD clinic interdisciplinary team that Mr. Ryan engaged in careless performance or inappropriate conduct.

[00:02:11] Speaker 04:
But you want us to reweigh the evidence.

[00:02:13] Speaker 02:
I don't, Your Honor.

[00:02:14] Speaker 02:
I understand that you're not allowed to do that, and I'm not asking you to reweigh the evidence.

[00:02:20] Speaker 02:
What I'm asking you to do is look at the lack of evidence presented by the VA, or that the VA's own evidence is contradictory, that a reasonable mind could not look at that evidence and say, yes, John Ryan engaged in careless performance.

[00:02:40] Speaker 02:
May I give an example?

[00:02:42] Speaker 02:
So in April of 2021, there was an interdisciplinary meeting.

[00:02:46] Speaker 02:
Mr. Ryan was not there.

[00:02:48] Speaker 02:
They were there to talk about pain management.

[00:02:50] Speaker 02:
The 14-21 encounter is referenced in the initial decision.

[00:02:56] Speaker 02:
In that note, the team says, mental health providers, MH providers, assessed risk, continually assessed risk, and determined no immediate intent.

[00:03:10] Speaker 02:
Yet in the same four months later, now all of a sudden, the VA is contradicting itself and saying, yes, John Ryan failed to assess Chris.

[00:03:20] Speaker 01:
But you understand what our job is up here.

[00:03:24] Speaker 01:
And there was a thorough analysis of walking through everything that was done and the credibility findings and the weight of the evidence, as Judge Laurie referred to.

[00:03:33] Speaker 01:
So how does one example that you pick, thinking that it should have been viewed another way, enough to dislodge the conclusion that was reached below?

[00:03:43] Speaker 02:
Because the conclusion has to be sufficient.

[00:03:47] Speaker 02:
I'm back to my reasonable mind standard.

[00:03:50] Speaker 02:
And I don't think that the MSPB erred.

[00:03:54] Speaker 02:
in looking at that evidence, because again, substantial evidence by its very definition is that which a reasonable mind might accept as adequate.

[00:04:05] Speaker 02:
And I don't see any analysis that a reasonable mind could look at that evidence and say, yes, careless performance.

[00:04:14] Speaker 03:
I know some of the specifications and analysis below were focused on the

[00:04:24] Speaker 03:
absence of, let's call it, adequate records.

[00:04:29] Speaker 03:
The idea being that, first of all, an adequate record is important

[00:04:36] Speaker 03:
because continuity of care, if the caregiver changes, depends on the written record.

[00:04:44] Speaker 03:
And second, because of the background idea that the record is understood to accurately reflect what actually went on.

[00:04:55] Speaker 03:
So that if the record did not,

[00:04:58] Speaker 03:
disclose a particular kind of suicide assessment, it is fair to infer that that assessment was not in fact done.

[00:05:08] Speaker 03:
That I think of as, I guess, one whole kind of side of the case.

[00:05:13] Speaker 03:
And then the other is what Mr. Ryan said or did not say about acupuncture.

[00:05:19] Speaker 03:
But just on the first part, why is there not substantial evidence

[00:05:24] Speaker 03:
for the board to have found that those charges of inadequate records with a problem for two reasons were that that was proved?

[00:05:39] Speaker 02:
Well, Mr. Repco did say that Mr. Ryan may have engaged in assessment even though it's not documented.

[00:05:48] Speaker 02:
So in and of itself, I think in a clinical setting, yes, it's important.

[00:05:52] Speaker 02:
There's no doubt it's important to make proper documentation.

[00:05:57] Speaker 02:
But in a clinical setting, I don't know if you can put every single word that was spoken in.

[00:06:04] Speaker 02:
And I think that's what the issue with this case is, is that they're trying to go into Mr. Ryan's personal private discussions with the veteran and say, this did or did not happen.

[00:06:17] Speaker 02:
I think that's addressed, Your Honor, by the fact that Mr. Ryan is part of the interdisciplinary team, and they discuss these cases.

[00:06:25] Speaker 02:
And they ask him, John, please report on veteran 7918.

[00:06:29] Speaker 02:
What's going on?

[00:06:30] Speaker 02:
And Mr. Ryan would make these verbal reports.

[00:06:33] Speaker 02:
So I think the fact that not everything may have not been in a patient encounter note does not reflect his work as a social worker, that he was assessing risk.

[00:06:44] Speaker 02:
The team depended upon him not only on their encounter notes, but on his verbal reporting to the team.

[00:06:52] Speaker 02:
And I think that's an important distinction is

[00:06:55] Speaker 02:
that it's not just documentation.

[00:06:58] Speaker 02:
And if it were documentation, then that's a totally different issue.

[00:07:04] Speaker 02:
That's failing to properly document as opposed to careless performance.

[00:07:09] Speaker 02:
The VA is saying John Ryan, after seven years, suddenly decided in 2020 and 2021 to stop caring for this veteran.

[00:07:20] Speaker 02:
That's what they're trying to assert.

[00:07:22] Speaker 02:
He stopped.

[00:07:24] Speaker 02:
after all those years of caring for this man day in, day out, not day in, day out, but year after year after year, that suddenly he would abandon this veteran.

[00:07:35] Speaker 02:
And I think that's where a reasonable mind would say, how?

[00:07:39] Speaker 03:
What about the acupuncture-based piece of the case, which I think I'm right.

[00:07:48] Speaker 02:
Well, what I remember is the inappropriate conduct

[00:07:51] Speaker 03:
by basically misleading the veteran into thinking that he would be able to get, on the VA's dime, more acupuncture than the VA was going to give.

[00:08:10] Speaker 03:
And then experiencing disappointment when that turned out not to be true, and disappointment leading to at least some thoughts of suicide.

[00:08:20] Speaker 02:
Right.

[00:08:21] Speaker 02:
And I think that that's, you know, Mr. Ryan may have overstepped somewhat, but he could have been corrected.

[00:08:31] Speaker 02:
And he testified that he was meeting his standard of care as a social worker.

[00:08:37] Speaker 02:
I have to provide information to my clients about their options.

[00:08:43] Speaker 02:
And in some of his notes, he in fact does refer the veteran back to seek appropriate care.

[00:08:49] Speaker 02:
So I don't think that he was, I think it's a stretch to say you need pain management because pain management and pain was his number one risk for suicide.

[00:09:00] Speaker 02:
And so by John Ryan addressing intractable pain was not inappropriate conduct.

[00:09:08] Speaker 02:
It was addressing his main suicide risk.

[00:09:15] Speaker 02:
If I may, and I don't want to concede at all and understand that we believe that there was not substantial evidence of careless performance or inappropriate conduct, but to the extent that the court would feel differently, then I'd like to turn to the Douglas Factors.

[00:09:32] Speaker 02:
This court has said that the Douglas Factors significant to the case must be reviewed thoroughly.

[00:09:38] Speaker 02:
And the standard, of course, is that the agency exercise management discretion within tolerable limits of reasonableness.

[00:09:45] Speaker 02:
So we're back to reasonableness.

[00:09:48] Speaker 02:
And in terms of Douglas Factor Number 9, I think it's clear that it's not mentioned in the decision below.

[00:09:55] Speaker 02:
There's no indication that Mr. Ryan, at any time, was ever told, John, you're increasing suicide risk.

[00:10:06] Speaker 02:
There was complete silence, complete silence from the VA that he may have been doing something wrong for a year.

[00:10:14] Speaker 03:
So there was some evidence, the stay in your lane evidence.

[00:10:20] Speaker 03:
Does that all have to do with the acupuncture?

[00:10:23] Speaker 02:
Yes.

[00:10:24] Speaker 02:
That was all inappropriate conduct.

[00:10:27] Speaker 02:
So I would ask the court to find that complete silence about the five patient encounters is not within the tolerable limits of reasonableness.

[00:10:35] Speaker 02:
Complete silence.

[00:10:37] Speaker 01:
How many other Douglas factors are there?

[00:10:39] Speaker 01:
You mentioned number nine, but there are 16 of them, or 12 of them, or something.

[00:10:43] Speaker 01:
I forget.

[00:10:44] Speaker 01:
12.

[00:10:45] Speaker 01:
And quite a number of them point heavily in the other direction, correct?

[00:10:49] Speaker 01:
So what are we supposed to do with your argument now on factor number nine, which arguably is supported by substantial evidence?

[00:10:58] Speaker 01:
But even if you were correct, what are we supposed to do with that?

[00:11:00] Speaker 01:
Send it back for another analysis of the Douglas factor?

[00:11:03] Speaker 02:
Yes.

[00:11:04] Speaker 02:
The Douglas factors have to be thoroughly

[00:11:06] Speaker 02:
subject to thorough analysis, because the record below, Dr. O'Connor did not discuss his documentation.

[00:11:13] Speaker 02:
Back to your point, Your Honor.

[00:11:15] Speaker 02:
Dr. Masnick did not discuss his alleged, quote, lack of documentation.

[00:11:20] Speaker 02:
They did not at all counsel him about failing to engage in assessment of suicide risk.

[00:11:27] Speaker 02:
And that's important because the Douglas Factor says you must have clarity

[00:11:34] Speaker 02:
in the notice of the violation of rules or a warning.

[00:11:39] Speaker 02:
No notice, no warning.

[00:11:42] Speaker 02:
And I think this is even exacerbated further by the fact that the team itself, these are the frontline caretakers of Veterans 7918.

[00:11:50] Speaker 02:
They don't say a word to John Ryan about engaging in careless performance.

[00:11:55] Speaker 02:
And yet, they're the ones who have the closest and the most direct contact, as opposed to Dr. O'Connor and Dr. Masnick, who looked at records and looked at adages about what's in and what's not in a record.

[00:12:09] Speaker 03:
Would anybody but Mr. Ryan, as a matter of normal course, review his records?

[00:12:20] Speaker 02:
Yes, they were all subject to electronic signature by the PTSD clinic team.

[00:12:27] Speaker 02:
And in fact, you could see on some of the exhibits, it says, receive by, receive by, receive by.

[00:12:34] Speaker 03:
But is that just like a file clerk thing?

[00:12:38] Speaker 03:
It is now in the record.

[00:12:40] Speaker 03:
What I'm wondering about is whether inadequacies of the record would have been caught and therefore

[00:12:50] Speaker 03:
generated a, hey, you're not doing what you're supposed to.

[00:12:55] Speaker 03:
That is a kind of notice, or whether that just isn't something that would, in the normal course, have been caught before.

[00:13:05] Speaker 03:
This is what, in October of 2021?

[00:13:08] Speaker 03:
Is that when all of this got started?

[00:13:10] Speaker 02:
2020, 2021, yes.

[00:13:12] Speaker 02:
Well, the inequity of the record is the

[00:13:17] Speaker 02:
presupposes, again, that it didn't happen, and we're back to that adage.

[00:13:22] Speaker 02:
Why couldn't the VA have just said, John, have you been talking to this veteran?

[00:13:28] Speaker 02:
Did you do this?

[00:13:29] Speaker 02:
And the evidence is also there that, in fact, and this is an important part of the initial decision, is they said Mr. Ryan didn't rebut any of these specifications.

[00:13:37] Speaker 02:
Well, that's not reasonable interpretation of the record, because he did.

[00:13:44] Speaker 02:
I took part in suicide risk.

[00:13:47] Speaker 02:
I referred the veteran to the suicide hotline.

[00:13:49] Speaker 02:
I engaged in exposure therapy.

[00:13:52] Speaker 02:
So to me, that's, I know you're saying, well, no, Jim, you're weighing the evidence, but it's the lack of evidence.

[00:14:00] Speaker 02:
that detracts.

[00:14:01] Speaker 02:
Could the team have seen the notes?

[00:14:04] Speaker 02:
I think it was up to them.

[00:14:06] Speaker 02:
If they wanted to read it, they could read it.

[00:14:07] Speaker 02:
If they didn't want to read it, they didn't have to.

[00:14:10] Speaker 02:
But it's not where they were completely removed, that they were in a different building or in a different patient.

[00:14:17] Speaker 02:
They staffed veteran 7918 continually.

[00:14:21] Speaker 02:
And if someone had said, John, you're not doing this or that, this would have been the time to do it.

[00:14:27] Speaker 04:
Counsel, you're well into almost through your rebuttal time.

[00:14:31] Speaker 04:
Sorry, Your Honors.

[00:14:31] Speaker 04:
We'll give you three minutes for rebuttal.

[00:14:33] Speaker 04:
Let's hear from the government.

[00:14:39] Speaker 04:
Mr. Adelschrick.

[00:14:45] Speaker 00:
Good morning, and may it please the court.

[00:14:48] Speaker 00:
I'd like to start with eight patient encounters.

[00:14:53] Speaker 00:
An attempt once again to minimize the seriousness of this whole situation.

[00:14:59] Speaker 00:
Mr. Ryan's high risk patient had a suicide plan to overdose on drugs and alcohol, and he had the means to carry it out with a stockpile of whiskey and thousands of pills.

[00:15:14] Speaker 00:
Every single one of those patient encounters with this veteran was critical.

[00:15:24] Speaker 00:
As a psychotherapist for this veteran, Mr. Ryan had to take required clinical steps that are undisputed here.

[00:15:35] Speaker 00:
For example, at every single encounter, he was required, and there's no dispute, he had to do a suicide assessment and provide lethal means counseling.

[00:15:49] Speaker 00:
There was a factual dispute before the board to be sure about whether Mr. Ryan indeed performed those required clinical steps.

[00:15:59] Speaker 00:
But after weighing the evidence as the trier of fact, the board properly found that Mr. Ryan did not do so.

[00:16:08] Speaker 00:
And this came down to reviewing Mr. Ryan's own patient documentation.

[00:16:15] Speaker 04:
Counsel, let's talk a little bit about the Douglas Factors.

[00:16:19] Speaker 04:
Sure.

[00:16:19] Speaker 04:
This is a 43-page opinion, very thorough on the actual facts.

[00:16:27] Speaker 04:
But it starts on the Douglas Factors on appendix 41.

[00:16:31] Speaker 04:
It says the deciding official carefully looked at all the Douglas Factors.

[00:16:37] Speaker 04:
And there are two pages there, but I don't see that they've gone through the individual Douglas Factors.

[00:16:44] Speaker 04:
including number nine that opposing counsels mentioned.

[00:16:49] Speaker 00:
Well, I'd address that on several levels, Your Honor.

[00:16:54] Speaker 00:
First of all, consistent with this court's decision in Norris versus SEC, which we talk about in the red, the role of the

[00:17:06] Speaker 00:
board is to make sure that there was a thorough consideration and balancing of all the Douglas Factors.

[00:17:14] Speaker 00:
And there's no serious dispute that VA did, in fact, go through them one at a time and then balance them all together.

[00:17:23] Speaker 00:
And the board properly, within the role that this court has identified for it,

[00:17:30] Speaker 00:
determined that there was thorough consideration and balancing of all of those factors.

[00:17:36] Speaker 03:
By the agency or by the AJ?

[00:17:40] Speaker 00:
By the agency, by the deciding official, Mr. Repco.

[00:17:44] Speaker 03:
But not so much by the AJ, which I guess I understand.

[00:17:47] Speaker 00:
Well, the administrative judge is not permitted to independently reweigh them, consistent with the board's role as identified by this court in the Norris case.

[00:18:00] Speaker 00:
There was a review.

[00:18:03] Speaker 00:
There's clearly on this record evidence as well as testimony from the deciding official that all of these Douglas Factors were considered, including those in mitigation or that were favorable to Mr. Ryan, such as his 14 years of service.

[00:18:26] Speaker 03:
What do you make of the factor nine point, not as applied to the acupuncture, but as applied to the charge number one?

[00:18:36] Speaker 00:
Sure.

[00:18:36] Speaker 00:
Well, the argument was that there was complete silence.

[00:18:40] Speaker 00:
Those were the words you heard from my colleague about notifying Mr. Ryan that he should stay in his lane.

[00:18:49] Speaker 00:
That silence, there was a lot of emails and meetings.

[00:18:55] Speaker 00:
There was not silence.

[00:18:57] Speaker 00:
We go through in the brief and Marshall.

[00:19:01] Speaker 03:
I want to put aside, I thought the stay in the lane.

[00:19:05] Speaker 03:
was about the acupuncture comments.

[00:19:07] Speaker 03:
I want to put that aside.

[00:19:09] Speaker 03:
What notice did he have that his assessments and or record keeping of assessments during his monthly meetings with the veteran were inadequate?

[00:19:22] Speaker 00:
Well, they didn't put him on PIP, Your Honor, because of the seriousness of this matter.

[00:19:26] Speaker 00:
They decided to remove him upon determining that he was not performing required clinical steps.

[00:19:34] Speaker 00:
And there's no dispute that Mr. Ryan knew not only that he was supposed to be performing those required clinical steps, but he also knew that I'll give Your Honor the citation.

[00:19:56] Speaker 00:
in the appendix at 1271 and 1341 and 42, Mr. Ryan's own testimony.

[00:20:03] Speaker 00:
He understood the adage that if it's not documented, it's like it never happened.

[00:20:09] Speaker 00:
And he admitted under oath that important things like this, suicide screenings, lethal means counseling, always, always had to be documented.

[00:20:22] Speaker 00:
So he had clear notice of what he was supposed to be doing, and he wasn't doing it.

[00:20:28] Speaker 00:
There is not a statute, regulation, or case that holds that an employer must stop an employee and notify them that their conduct is insufficient before removing them when that conduct is of sufficient gravity.

[00:20:52] Speaker 00:
And here, this could not be a more serious situation.

[00:20:59] Speaker 00:
It was within the province of the board to weigh the evidence, including the inferences to be drawn from the medical documentation that Mr. Ryan created.

[00:21:13] Speaker 00:
There could have been multiple reasonable inferences drawn under the circumstances.

[00:21:22] Speaker 00:
But the board had to resolve this question, looking at the documentation itself, the context of that documentation in the medical field, where the documentation was crucial so that other practitioners within the VA could see what was going on with respect to a particular patient.

[00:21:46] Speaker 00:
Mr. Ryan even trained others.

[00:21:48] Speaker 00:
If it isn't documented, it's like it never happened.

[00:21:53] Speaker 00:
He understood the seriousness of writing down what he did when it came to these required clinical steps.

[00:22:03] Speaker 00:
And it was more than fair for the board to infer from Mr. Ryan's own documentation that he wasn't doing those required steps.

[00:22:18] Speaker 00:
And as for Mr. Ryan's blanket assertion, I always did those things in every encounter.

[00:22:24] Speaker 00:
The board weighed that too, but said his assertions weren't specific to any one encounter.

[00:22:31] Speaker 00:
He didn't testify on encounter number one.

[00:22:35] Speaker 00:
I specifically recall discussing XYZ with the veteran.

[00:22:41] Speaker 00:
It wasn't specific.

[00:22:42] Speaker 00:
It was a blanket assertion.

[00:22:44] Speaker 00:
I did everything I was supposed to.

[00:22:46] Speaker 00:
Well, when you stack that up.

[00:22:48] Speaker 00:
In context against what that documentation is supposed to represent in the medical field, it's a perfectly reasonable inference to be drawn that Mr. Ryan simply wasn't doing what was required.

[00:23:08] Speaker 00:
Mr. Ryan does not provide any basis for the court to disturb the board's fact-intensive decision.

[00:23:14] Speaker 00:
The court should affirm.

[00:23:16] Speaker 00:
Thank you.

[00:23:18] Speaker 04:
Thank you, counsel.

[00:23:21] Speaker 04:
Mr. Novogrocki has a little time.

[00:23:24] Speaker 04:
We'll give you two minutes.

[00:23:27] Speaker 02:
That's fine, your honor.

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

[00:23:29] Speaker 02:
If we look at the standard applied to the Douglas considerations, it has to be within the tolerable limits of reasonableness.

[00:23:39] Speaker 02:
Tolerable limits of reasonableness.

[00:23:42] Speaker 02:
And counsel could not come up with any notice

[00:23:45] Speaker 02:
with regard to the careless performance of failure to assess suicide risk.

[00:23:51] Speaker 02:
And let's talk about the urgency.

[00:23:54] Speaker 02:
If the VA said, this man is putting a veteran's life at risk, we're not going to say anything to him?

[00:24:02] Speaker 02:
We're going to let him go on, not only with Veterans 7918, but with 60 to 70 other veteran patients?

[00:24:08] Speaker 02:
And we're not going to say anything?

[00:24:10] Speaker 02:
That is not within the tolerable limits of reasonableness.

[00:24:14] Speaker 02:
I agree.

[00:24:14] Speaker 02:
They said, stay in your lane.

[00:24:17] Speaker 02:
What does that mean?

[00:24:21] Speaker 02:
Lack of specificity, lack of clarity, as opposed to the one time that they did say to John Ryan, his supervisor said, John, quit sending out those articles.

[00:24:31] Speaker 02:
You're exceeding it.

[00:24:32] Speaker 02:
And John said, OK, I won't send out the articles that are outside of my social work.

[00:24:39] Speaker 02:
Context let me also mention just briefly Douglas factors four and ten with regard to rehabilitation Not considered thoroughly That mr. Ryan when he was called out on things said okay I'll stop sending out those articles when dr. Masnick said go to training John said okay.

[00:24:59] Speaker 02:
I'll go to training and

[00:25:00] Speaker 02:
They thoroughly skip the idea of whether someone who has been a social worker for 14 years could rehabilitate themselves.

[00:25:08] Speaker 02:
Also, Douglas Factor number four that talks about performance.

[00:25:13] Speaker 02:
In 2020, both Dr. O'Connor and Dr. Masnick rated John Ryan as fully successful.

[00:25:22] Speaker 02:
And yet, they're trying to say, well, we're going to ignore that, Douglas Factor.

[00:25:28] Speaker 02:
the deciding official called it lackluster performance.

[00:25:32] Speaker 02:
Once again, Your Honors, I believe that there are sufficient grounds to rescind the notice of removal.

[00:25:38] Speaker 02:
I thank you.

[00:25:38] Speaker 04:
Thank you very much.

[00:25:39] Speaker 04:
Thank you to both counsel.

[00:25:41] Speaker 04:
The case is submitted.