[00:00:05] Speaker 04:
All right, our first case this morning is Frerichs v. Department of the Navy, number 249531.

[00:00:12] Speaker 04:
Mr. Renner, you may proceed.

[00:00:19] Speaker 00:
Thank you.

[00:00:20] Speaker 00:
I am Richard Renner, and I would really like to reserve three minutes of my time for rebuttal.

[00:00:26] Speaker 00:
It is my privilege to represent Lonnie Frerichs

[00:00:29] Speaker 00:
who served this country through active duty in the United States Navy in a career that specialized in Explosive Ordnance Disposal, or EOD.

[00:00:41] Speaker 00:
This is a community of about 5,000 service members throughout the armed services.

[00:00:46] Speaker 00:
After retiring honorably from active service in 2006, he returned to the Navy as a civilian employee in 2008 to work in the program office that oversaw funding of EOD programs.

[00:00:59] Speaker 00:
One of his product users, or customers as they called them, was Robert Kissel, who led the Defense Technical Response Group.

[00:01:08] Speaker 00:
He, among other programs, was responsible for developing our country's tools to use against improvised nuclear devices, or INDs, more commonly called dirty bombs.

[00:01:20] Speaker 00:
And Lonnie Frerichs began to see that of the millions of dollars Congress was appropriating, it wasn't going to Robert Kissel.

[00:01:29] Speaker 00:
Other managers, including Keith Plumedore and Amanda Vestledge, were diverting this money to other programs, other salaries, other expenses, other programs they wanted to fund.

[00:01:40] Speaker 00:
And Lonnie Frerichs, being in the program office, gave Robert Kissel visibility about what happened to what eventually became $28 million, Congress appropriated so we would have tools to use against dirty bombs, and we got absolutely not a single tool out of it.

[00:01:56] Speaker 04:
Mr. Renner, this is in reference to what is described under the Whistleblower Act as disclosure number one.

[00:02:05] Speaker 04:
Yes, that's correct.

[00:02:06] Speaker 04:
And I think we're dealing in the case with, as I count them, we have disclosures one, two, three, five, and six, and activity three.

[00:02:19] Speaker 04:
All right.

[00:02:20] Speaker 04:
That's a lot to digest, and we've only got a limited amount of time.

[00:02:24] Speaker 04:
So let me just ask you a question.

[00:02:26] Speaker 04:
about the disclosures as a whole.

[00:02:32] Speaker 04:
Why aren't the disclosures involved in this case that occurred before 2017 too far removed from Mr. Frerich's removal to be contributing factors?

[00:02:46] Speaker 00:
I will show you.

[00:02:48] Speaker 00:
If you will turn to page volume one of the Joint Appendix, page 131,

[00:02:54] Speaker 00:
This is the reprimand that was issued to Lonnie Frerichs on September of 2010.

[00:03:00] Speaker 00:
There's no dispute about its authenticity.

[00:03:03] Speaker 00:
Lonnie Frerichs did receive this reprimand.

[00:03:05] Speaker 00:
And it was issued, it says, head EID branch.

[00:03:10] Speaker 00:
This was Keith Plumador, who was the supervisor of Amanda Veslage, who eventually became his successor.

[00:03:17] Speaker 00:
And in paragraph 1a, it goes over how Lonnie Frerichs was being reprimanded

[00:03:23] Speaker 00:
for what he said in an integrated product team meeting about internal controls.

[00:03:29] Speaker 00:
In paragraph B, they specifically call out Lonnie Frerichs' allegation that the program office did not have requirements management process.

[00:03:38] Speaker 00:
Lonnie Frerichs was raising concerns about the internal controls about the money.

[00:03:42] Speaker 00:
And if there's any doubt about what this reprimand was trying to do, turn to page 133, paragraph 4, and it says,

[00:03:52] Speaker 00:
You have a right to make such allegations through the chain of command and in any other federal entities that have been established to hear such allegations.

[00:04:00] Speaker 00:
However, your right to make such allegations does not extend to your coworkers, our customers, our product users.

[00:04:08] Speaker 00:
That's Robert Kissel.

[00:04:10] Speaker 00:
They're telling him, do not talk outside of our chain of command, our authorized structures here, because we don't want those people to know what we're doing with their money.

[00:04:21] Speaker 00:
All right.

[00:04:21] Speaker 00:
compare that to page 113, which is Amanda Veselich's final decision, removing law nefarious from federal service.

[00:04:31] Speaker 00:
And we're looking at paragraph C, employee's past disciplinary record,

[00:04:37] Speaker 00:
This is an aggravating factor.

[00:04:39] Speaker 00:
You were issued two letters of reprimand.

[00:04:41] Speaker 00:
September 2010, we just looked at that.

[00:04:43] Speaker 00:
And June 2015, I think the record indisputably shows that that was fabricated, that that reprimand was actually never issued to Lonnie Frerichs.

[00:04:52] Speaker 00:
Both of these letters describe your behavior as disruptive and unprofessional, verbally derogatory remarks.

[00:04:59] Speaker 00:
And she goes on to explain how this is an aggravating factor that

[00:05:04] Speaker 00:
that she considered in deciding that termination of his employment was the correct remedy.

[00:05:09] Speaker 00:
So it should not be so difficult here to connect the dots when the decision maker herself connected the dots officially in writing in the decision removing money first.

[00:05:20] Speaker 04:
Well, let me just ask you in that regard, because my question had to do whether it was a remoteness question.

[00:05:28] Speaker 04:
Right.

[00:05:28] Speaker 04:
Right?

[00:05:29] Speaker 04:
And I think what I'm hearing you say is that it isn't remote because it was mentioned.

[00:05:34] Speaker 04:
by her on page 113.

[00:05:38] Speaker 04:
That's correct.

[00:05:39] Speaker 04:
But is this a fact, is remoteness a factual question or is it a legal question?

[00:05:46] Speaker 04:
In other words, could it be too remote as a matter of law irrespective of whether it was mentioned then?

[00:05:54] Speaker 00:
Well, temporal proximity is one way to show causation, but it's not the only way.

[00:05:59] Speaker 00:
And here we have an example of direct evidence where the decision maker says, you know, the things that happened 10 years ago, that's a part of my reasoning here.

[00:06:10] Speaker 00:
That's why you're being fired.

[00:06:11] Speaker 00:
And she says that repeatedly in her decision that this is a 10-year problem with Lonnie Ferrex, and that's why he's being removed.

[00:06:21] Speaker 00:
It can also be established by the pattern.

[00:06:24] Speaker 00:
And this court in the Marx case, for which I submitted a 28-J letter, recognized that a pattern of antagonism that starts soon after the protected activity, which is the 2010 reprimand, can establish that causal link

[00:06:39] Speaker 00:
even if it is beyond the time that would normally be appropriate for temporal proximity to apply.

[00:06:49] Speaker 00:
There are other ways.

[00:06:50] Speaker 00:
And there's no set limit on the methods of showing contributing factor.

[00:06:53] Speaker 00:
Remember, Congress set a very low standard for whistleblowers.

[00:06:57] Speaker 00:
They only have to show that the protected activity was a contributing factor.

[00:07:01] Speaker 00:
And here, the board did find that his concerns about the toxic fumes in the anechoic chamber

[00:07:06] Speaker 00:
were a protected activity that did contribute.

[00:07:08] Speaker 00:
It's also in writing as a factor of specification in his termination.

[00:07:14] Speaker 00:
So we have at least some protected activity that was a contributing factor.

[00:07:18] Speaker 00:
So the one sufficient and necessary issue for this court is whether or not the Navy's evidence meets the clear and convincing standard.

[00:07:27] Speaker 00:
And this is my main point, that Congress passed this bifurcated

[00:07:32] Speaker 00:
causation standard that's very favorable to whistleblowers because they wanted to encourage federal employees to speak up.

[00:07:38] Speaker 00:
The target audience here is other federal employees making sure that they know that if they speak up, the legal system will have their back and make sure that they're not going to suffer because they took a stand for the public interest.

[00:07:52] Speaker 00:
And it can be a difficult standard for employers to meet.

[00:07:56] Speaker 00:
On page 66 of my brief, I cited the 11th Circuit case of Stone and Weber, where the court acknowledged that this can be difficult for employers.

[00:08:05] Speaker 00:
And Congress obviously intended it to be difficult.

[00:08:08] Speaker 02:
Well, don't we have an issue here with who is making the final decisions on the appeal?

[00:08:19] Speaker 02:
If they discover or if they conclude that it's one way, can we go in and say, no, it's the other way?

[00:08:27] Speaker 02:
You have to.

[00:08:29] Speaker 00:
That is what the administrative procedures are.

[00:08:30] Speaker 02:
Don't we have to defer to findings that were made by the

[00:08:35] Speaker 00:
It is this court's responsibility to make sure that the record as a whole shows that the evidence is clear and convincing.

[00:08:43] Speaker 00:
That is, that it's strong evidence, consistent, that it's not based on subjective factors or hearsay or fabricated evidence.

[00:08:51] Speaker 02:
Well, what if the fact finder says, well, I just don't believe you.

[00:08:55] Speaker 02:
I believe this.

[00:08:56] Speaker 00:
Now, if the clear and convincing standard under the Whistleblower Protection Act came down to just the credibility determination, then the Whistleblower Protection Act would be meaningless because supervisors can go in, say whatever they want, and if it's found to be credible, that would be the end of the whistleblower's career.

[00:09:15] Speaker 00:
The clear and convincing standard is used for certain fundamental important rights

[00:09:19] Speaker 00:
for which our laws or our courts have said, we need to be really sure about these decisions.

[00:09:27] Speaker 00:
Parental rights cannot be terminated without clear and convincing evidence.

[00:09:31] Speaker 00:
Attorneys cannot be disbarred without clear and convincing evidence.

[00:09:34] Speaker 00:
The water rights of the state of Colorado cannot interfere with the water rights of New Mexico without clear and convincing evidence.

[00:09:44] Speaker 03:
Aren't you complaining step two with the final step?

[00:09:47] Speaker 03:
of the analysis, the clearing and convincing evidence standard, as I understand it, relates to the inquiry of whether or not a protected activity already deemed to be a contributing factor would or would not have been the same decision in the absence of

[00:10:04] Speaker 03:
that disclosure of a protected activity.

[00:10:07] Speaker 03:
It certainly would apply at the final step.

[00:10:10] Speaker 03:
At step two, I think you had acknowledged, with regard to whether or not a protected disclosure was a contributing factor, really there we're just looking at whether or not there's substantial evidence.

[00:10:21] Speaker 03:
Do you agree with that?

[00:10:23] Speaker 03:
Whether there was substantial evidence that the 2010 disclosures.

[00:10:28] Speaker 00:
I think it's fair to characterize both steps there as substantial evidence.

[00:10:33] Speaker 00:
As the Federal Circuit said in the Miller versus Department of Justice case, it has to be substantial enough evidence to be clear and convincing.

[00:10:42] Speaker 00:
I would suggest this is a mixed question of law and fact that requires an examination to see whether or not this is evidence that meets that high standard that Congress set.

[00:10:53] Speaker 00:
For example, if you look at Verne Hall's testimony about

[00:10:56] Speaker 00:
Lonnie Ferric's punching the computer and getting in his face.

[00:11:00] Speaker 00:
You know, the very first email Verne Hall sent after that supposed incident was on appendix one, page 74, and it makes no mention of these events.

[00:11:11] Speaker 00:
He doesn't raise them until nine days later when his supervisor asked him to write it up.

[00:11:16] Speaker 00:
So even if his testimony is credible, that doesn't make it strong.

[00:11:20] Speaker 00:
Just as the Warden's testimony in the Miller versus DOJ case

[00:11:24] Speaker 00:
even if it's credible, did not make it strong, did not show a consistent pattern.

[00:11:28] Speaker 04:
Mr. Renner, I think the question though has to do with this clear and convincing evidence applied to the contributing factor

[00:11:40] Speaker 04:
as well as the final question, which is whether the employer would have taken the same action in the absence of the whistle blowing, which is the language from CAR itself.

[00:11:54] Speaker 04:
I'm looking at it right now.

[00:11:57] Speaker 04:
Isn't that where clear and convincing applies?

[00:11:59] Speaker 00:
Only to the Navy's affirmative defense that they would have made the same decision without the protected activity.

[00:12:05] Speaker 00:
That is where clear and convincing evidence applies.

[00:12:08] Speaker 00:
OK.

[00:12:10] Speaker 00:
I see him at three minutes.

[00:12:12] Speaker 00:
I'd like to reserve my time.

[00:12:13] Speaker 04:
Thank you, counsel.

[00:12:35] Speaker 01:
Good morning.

[00:12:36] Speaker 01:
May it please the court

[00:12:38] Speaker 01:
The jurisdictional and venue concerns that we raised in our opening brief have been resolved by Mr. Frerich's representations in his reply brief.

[00:12:46] Speaker 01:
So you no longer question jurisdiction?

[00:12:48] Speaker 02:
Correct.

[00:12:49] Speaker 02:
Thank you.

[00:12:49] Speaker 02:
Can you move your microphone up a little bit?

[00:12:51] Speaker 02:
Oh, sure.

[00:12:53] Speaker 02:
Is that better?

[00:12:54] Speaker 01:
Yeah, I wanted to get that out of the way.

[00:12:57] Speaker 01:
Before turning to the merits, the court should affirm because substantial evidence supports the board's decision.

[00:13:05] Speaker 01:
The Navy removed Mr. Frerichs from his position in the explosive ordinance department after a series of escalating incidents of unacceptable conduct.

[00:13:15] Speaker 03:
And one of those escalating events

[00:13:19] Speaker 03:
was the complaints in 2010 about the misuse of that $28 million, right?

[00:13:26] Speaker 01:
I don't think that's correct.

[00:13:27] Speaker 03:
Well, how do you square that?

[00:13:29] Speaker 03:
Now, Council, Mr. Renner referred to page 113 of the final decision.

[00:13:35] Speaker 03:
What about 116, where the final decision says, quote, the repeated nature of the altercations with sponsors and other stakeholders, both in 2010

[00:13:47] Speaker 03:
and more recently in 2019, has seriously negatively affected our organization's reputation with key sponsors and stakeholders.

[00:13:57] Speaker 03:
That is part of the explanation that was given to Mr. Fredericks about why he was being terminated.

[00:14:05] Speaker 03:
How can that not be, under Morano, at least a factor that tends to affect in any way the outcome of the decision?

[00:14:14] Speaker 01:
Ms.

[00:14:15] Speaker 01:
Beslich, the deciding official in this case, addressed this during her testimony at the evidentiary hearing, and she repeatedly testified that she did not rely on those letters of reprimand to make her decision.

[00:14:30] Speaker 01:
Her decision was based solely on the incidents in 2019

[00:14:35] Speaker 01:
the three incidents in 2019.

[00:14:36] Speaker 01:
She did mention in her deciding letter references, she did reference the 2010 and 2015 letters of reprimand, and she did so.

[00:14:46] Speaker 01:
She explained the reason why she did so.

[00:14:48] Speaker 03:
She didn't say the earth is flat.

[00:14:50] Speaker 03:
Her letter explaining exactly why she made the final decision

[00:14:58] Speaker 03:
expressly says in two places, both at 113 and 116, that this began, as you pointed out, an escalating pattern of antagonism.

[00:15:11] Speaker 03:
And she specifically starts that period, the creation of that pattern, with regard to his complaints in 2010.

[00:15:21] Speaker 01:
And I think the reason why she did that is, as she explained in her testimony, is because the 2010 and 2015 letters of reprimand provided notice to Mr. Fredericks about what constituted acceptable and unacceptable behavior, because he had been warned in 2010 that his disrespectful, overly confrontational, and generally counterproductive

[00:15:44] Speaker 01:
conduct was unacceptable.

[00:15:47] Speaker 01:
And so it went to the notice that he knew that this was unacceptable conduct.

[00:15:51] Speaker 01:
He'd been warned in the past, and yet he continued to engage in that conduct.

[00:15:55] Speaker 03:
Does that mean that if he knew because of what happened in response to his 2010 complaints, even with regard to the creation of notice, doesn't that in itself show

[00:16:14] Speaker 03:
that it tended in any way to affect the decision?

[00:16:19] Speaker 03:
Step two is a really lenient requirement.

[00:16:27] Speaker 03:
If it created notice, doesn't that force Iori to satisfy step two?

[00:16:34] Speaker 01:
I don't necessarily think it does.

[00:16:37] Speaker 01:
Did it tend to affect in any way the decision to remove him?

[00:16:41] Speaker 01:
I think that it provided some notice to Mr. Frerichs about what constituted unacceptable conduct.

[00:16:49] Speaker 01:
Ms.

[00:16:49] Speaker 01:
Veselich was very clear that her decision was based off of his conduct in 2019, and that was the basis for her decision to remove him.

[00:16:59] Speaker 01:
She was particularly upset

[00:17:00] Speaker 01:
with the most recent incident about punching the computer monitor and yelling in his supervisor's face, standing up and staying within six inches of his supervisor's face, and moving forward as his supervisor was backing away in fear and continuing to yell.

[00:17:17] Speaker 01:
That's what upset her.

[00:17:18] Speaker 01:
That was the basis for her decision, and her testimony was very, very clear about that was the reason why she removed him.

[00:17:23] Speaker 02:
Well, he denied that also.

[00:17:28] Speaker 02:
And so you have two people, one says yay, one says nay.

[00:17:31] Speaker 02:
So they make a decision.

[00:17:33] Speaker 02:
Are we stuck with that?

[00:17:35] Speaker 01:
The administrative judge did assess credibility at the evidentiary hearing.

[00:17:40] Speaker 01:
And the administrative judge credited the testimony of the supervisor, Vern Hull, when he explained what happened during that incident.

[00:17:48] Speaker 01:
Mr. Frerichs actually didn't deny that he punched the computer monitors.

[00:17:54] Speaker 01:
Nobody had a picture of it.

[00:17:56] Speaker 02:
Nobody said it was broken.

[00:17:58] Speaker 02:
Nobody did a thing about it at that point in time.

[00:18:01] Speaker 01:
Well, the question on appeal right now is whether there's substantial evidence to support the charge.

[00:18:07] Speaker 02:
OK, how about the fact that several employees said, we thought he looked like he might be a shooter?

[00:18:17] Speaker 02:
Now, that, to me, is just reaching into the air and pulling something out of nothing.

[00:18:24] Speaker 02:
And that was one of the things they relied on.

[00:18:27] Speaker 02:
The other thing they relied on was the fact that he got annoyed when the odor from the glue on the tiles in the room, he opened the door a little bit and somebody closed it.

[00:18:42] Speaker 02:
He opened it again and he got in trouble.

[00:18:44] Speaker 02:
Now, is that an action that shows he's not fit for work?

[00:18:52] Speaker 02:
Seems pretty common sense

[00:18:54] Speaker 02:
You know, when you've got noxious fumes to open the window or open the door.

[00:18:58] Speaker 01:
Sure.

[00:18:59] Speaker 01:
And let me just address those in order.

[00:19:01] Speaker 01:
Ms.

[00:19:01] Speaker 01:
Beslich, the deciding official here testified that her decision was based off of three incidents in 2019.

[00:19:08] Speaker 01:
The first was the altercation involving the 3D printer, where Mr. Fredericks yelled aggressively at a coworker.

[00:19:16] Speaker 02:
Again, on that issue, they just decided, we're not going to believe this man.

[00:19:21] Speaker 02:
We're going to believe this other person.

[00:19:23] Speaker 02:
And that's what I'm going to rely on.

[00:19:25] Speaker 02:
And there was nothing happened.

[00:19:27] Speaker 02:
I mean, he said, Juan, why didn't you tell me?

[00:19:31] Speaker 02:
And then Juan says, well, it got much, much worse than that, which was denied.

[00:19:36] Speaker 02:
And nobody did anything to him at that time.

[00:19:40] Speaker 02:
Next step, next item are the tiles and the noxious fumes.

[00:19:46] Speaker 02:
And I just failed to see where that constitutes anything at all.

[00:19:52] Speaker 02:
whether you believe it or not.

[00:19:54] Speaker 02:
And the third thing that we came up with was on these, well, he gave the impression that he could be an active shooter.

[00:20:02] Speaker 02:
I mean, come on.

[00:20:04] Speaker 01:
Let me just address the active shooter incidents right now.

[00:20:09] Speaker 02:
So the ALJ can just, because he's working for the Navy, can just say, well, I don't believe anything he says.

[00:20:15] Speaker 01:
Well, the ALJ is responsible for assessing credibility and found his testimony to be exaggerated, to change, to be affected.

[00:20:25] Speaker 01:
She found that the deciding official and Mr. Hull testified in a calm, measured tone that didn't show any bias.

[00:20:33] Speaker 02:
Yeah, but then she goes back to 2010 just to show that this has been a contributing factor.

[00:20:41] Speaker 02:
I mean, it just doesn't look right.

[00:20:45] Speaker 01:
On the active shooter's point, I don't think the deciding official did rely on that.

[00:20:52] Speaker 01:
I think she was very clear that she relied on the incident involving the 3D printer, the noxious fumes, and most importantly, the punching the computer monitor and yelling in the supervisor's face.

[00:21:03] Speaker 01:
On the noxious fumes issue, the administrative judge found that that was a protected disclosure and it was a contributing factor.

[00:21:14] Speaker 01:
The problem was the way in which Mr. Fredericks communicated his concerns about the noxious fumes, a yelling, aggressive manner, repeatedly coming into the workshop area where the work was being done instead of addressing his supervisor, and to the point where the person who he was yelling at didn't feel comfortable working with him anymore.

[00:21:36] Speaker 01:
So it's the manner in which he was communicating his concerns.

[00:21:42] Speaker 01:
Counsel, can I just get some help?

[00:21:44] Speaker 03:
Can I ask you, do you mind if I interrupt?

[00:21:46] Speaker 03:
Go ahead.

[00:21:47] Speaker 03:
I just wanted to answer, because I didn't hear it, the part of Judge Kelly's question about the 3D printer.

[00:21:54] Speaker 03:
As I understand it, I just didn't hear you answer that.

[00:21:58] Speaker 03:
I think I heard you acknowledge that it, at least to my ears, at step two,

[00:22:03] Speaker 03:
that Ms.

[00:22:04] Speaker 03:
Veselich did acknowledge that the disclosure about the 3D printer was a contributing factor.

[00:22:10] Speaker 03:
She said, I think you were saying in her testimony, that that's one of the reasons.

[00:22:14] Speaker 03:
Why isn't that, the 3D printer, a protected disclosure?

[00:22:18] Speaker 03:
As I understand it,

[00:22:21] Speaker 03:
Yeah, so I just wanted to hear you answer, Judge Kelly.

[00:22:24] Speaker 01:
Oh, sure.

[00:22:25] Speaker 01:
I'm sorry.

[00:22:25] Speaker 01:
I'd be happy to answer that.

[00:22:27] Speaker 01:
It was not a protected disclosure for a couple reasons.

[00:22:30] Speaker 01:
First, the administrative judge found that there was no rule that Mr. Fredericks could have reasonably believed he was disclosing a violation of.

[00:22:39] Speaker 03:
Are you sure?

[00:22:40] Speaker 03:
At page 134, I think what you may be correct, but I think what the ALJ says is that there was not a rule.

[00:22:48] Speaker 03:
There was not a local rule that required

[00:22:51] Speaker 03:
his approval for Mr. Sanchez to use the 3D printer.

[00:22:56] Speaker 03:
That is not necessary, as I understand it, for a protected disclosure.

[00:23:00] Speaker 03:
Even if there wasn't a rule, did he reasonably believe that there was a rule that would have required his approval before Sanchez could use the 3D printer?

[00:23:11] Speaker 03:
And I didn't see anywhere where the ALJ

[00:23:16] Speaker 03:
considers, addresses, makes a determination about whether or not he had a reasonable belief that there was a local rule that required his approval.

[00:23:45] Speaker 03:
One second, please.

[00:23:48] Speaker 03:
It's not a test.

[00:23:49] Speaker 03:
I don't want to interrupt it by colleagues.

[00:23:54] Speaker 01:
OK.

[00:23:55] Speaker 01:
I think on page 272 of the final decision, there is a reference that there was no written or otherwise clearly established and implicated rule about the 3D printer at this time.

[00:24:08] Speaker 01:
Right.

[00:24:09] Speaker 03:
I get that.

[00:24:13] Speaker 01:
To the extent Mr. Fredericks is suggesting that there was a rule that he should have been informed about the printer breaking, there's no reasonable way that he could have believed that he was disclosing a violation of that, because he knew that the printer was broken.

[00:24:27] Speaker 01:
Maybe.

[00:24:28] Speaker 03:
And you're probably right.

[00:24:29] Speaker 03:
But the ALJ didn't find that.

[00:24:31] Speaker 03:
That's just you saying that, right?

[00:24:33] Speaker 01:
Well, I think it's clear from the disclosure itself, and I think that's right.

[00:24:39] Speaker 01:
Wasn't there evidence that

[00:24:42] Speaker 04:
Mr. Roman Sanchez had already reported the malfunction before there was an altercation.

[00:24:47] Speaker 01:
Right.

[00:24:48] Speaker 01:
Mr. Roman Sanchez didn't hide it.

[00:24:49] Speaker 01:
He reported it to another one of the engineers in the printing room that there was a malfunction.

[00:24:55] Speaker 01:
And that engineer passed that information along to Mr. Frerichs.

[00:25:00] Speaker 01:
The disclosure itself, when were you going to tell me you broke the printer?

[00:25:04] Speaker 01:
I don't see how that could be reasonably construed to be

[00:25:09] Speaker 01:
a disclosure that Mr. Roman Sanchez was not permitted to use the printer.

[00:25:14] Speaker 03:
And to be clear, my only question was not whether or not there was a disclosure in the first place.

[00:25:23] Speaker 03:
My question was about the reasonableness of a belief that there had been a violation of this

[00:25:32] Speaker 03:
local rule, even if he was wrong.

[00:25:35] Speaker 03:
That was all I was trying to answer.

[00:25:38] Speaker 01:
But you answered it.

[00:25:38] Speaker 01:
I'll just try to add to that.

[00:25:39] Speaker 01:
On page 191, the administrative judge did find that as a result of this incident, Mr. Brown, the supervisor of Mr. Frederick's at the time, implemented a policy regarding the use of the 3D printers and specifically instructions were placed on each 3D printer advising that if a printer malfunctioned, the user was to stop printing and immediately notify Mr. Frederick's.

[00:26:02] Speaker 01:
Mr. Brown did not mandate that other employees could not use a 3D printer or had to consult with the appellant before doing so.

[00:26:09] Speaker 01:
I understand all your arguments.

[00:26:11] Speaker 03:
I just don't have any idea how that relates to my question, to be honest with you.

[00:26:16] Speaker 03:
Yeah, there was an after the fact rule, whether or not that was an amendment of the rule or a clarification of the rule, whether he had made a disclosure by virtue implicitly through a question.

[00:26:27] Speaker 03:
These are all great arguments.

[00:26:29] Speaker 03:
Again, I'm just trying to ask.

[00:26:31] Speaker 03:
whether or not there was a finding that his belief that there had been a violation of the rule had ever been decided by the ALJ.

[00:26:40] Speaker 03:
But I think you've answered my question.

[00:26:43] Speaker 03:
I appreciate it.

[00:26:43] Speaker 03:
Thank you.

[00:26:44] Speaker 03:
Judge Matheson had a question.

[00:26:47] Speaker 04:
Just very quickly, I'm interested in your giving us some help on we're reviewing an agency decision and the standards of review on each of these three steps, whether something's a disclosure, if it was, was it a contributing factor, if it was, did it affect the ultimate decision?

[00:27:04] Speaker 04:
Are we reviewing each one of those?

[00:27:09] Speaker 04:
Let's just take them one at a time.

[00:27:12] Speaker 04:
Are we reviewing them de novo?

[00:27:14] Speaker 04:
Is it a matter of legal determination or are we reviewing them for substantial evidence and giving deference to the agency?

[00:27:23] Speaker 04:
as to each one of those steps?

[00:27:24] Speaker 01:
Sure.

[00:27:25] Speaker 01:
I think for all of them, you're reviewing them for substantial evidence.

[00:27:31] Speaker 01:
These are largely factual questions.

[00:27:34] Speaker 01:
I'll take them in order.

[00:27:35] Speaker 01:
In the protected disclosures, there's an issue about whether somebody reasonably believed that the disclosure they were making evidenced a violation of a rule.

[00:27:43] Speaker 01:
The reasonableness of a belief is largely a factual determination, and whether that's supported by substantial evidence is the appropriate standard of review

[00:27:51] Speaker 01:
on appeal.

[00:27:53] Speaker 01:
As to the contributing factor part of the analysis, that is also largely a factual question about whether something had any tendency to affect in any way the removal decision.

[00:28:05] Speaker 01:
And that largely turns on the findings of facts about the credibility assessments, the timing of disclosures, whether somebody would have reasonably believed that that disclosure did have an effect.

[00:28:16] Speaker 01:
And then as to the clear and convincing standard,

[00:28:19] Speaker 01:
That's almost purely an issue about whether there's sufficient facts to support the board's decision.

[00:28:25] Speaker 01:
Thank you, counsel.

[00:28:26] Speaker 01:
Thank you for your answer.

[00:28:39] Speaker 00:
As to the issue of whether Amanda Vestledge can basically change her tune in live testimony and have that erase what she wrote in her written decision beforehand, I should explain that I was retained shortly before the hearing in this matter, before the administrative judge, and I submitted a brief in a pre-hearing submission that explained how I connected the dots between that 2010 reprimand being direct evidence that

[00:29:06] Speaker 00:
the protected activity was a contributing factor in the decision.

[00:29:10] Speaker 00:
And I think that may have had a role in why Amanda Vestal's testimony at the hearing was different than what it was in the written decision itself.

[00:29:19] Speaker 00:
But as to how to weigh that, in my brief, I cited the US versus US gypsum decision.

[00:29:26] Speaker 00:
It's an old decision from the Supreme Court.

[00:29:28] Speaker 00:
in which they said it's clearly erroneous to give weight to live testimony of a witness that's contradicted by the documents.

[00:29:36] Speaker 00:
And I think that applies here in this situation.

[00:29:39] Speaker 04:
Let me ask you this.

[00:29:40] Speaker 04:
If we agree with you on the 2010 as a contributing factor, that was not considered a contributing factor in the CAR analysis once the agency reached step three, correct?

[00:29:58] Speaker 00:
The Merit Systems Protection Board and the administrative judge did not consider it, because they held it was not a contributing factor.

[00:30:06] Speaker 00:
So they didn't get to the clear and convincing standard.

[00:30:09] Speaker 04:
But if we agree with you, what do we do next?

[00:30:13] Speaker 00:
Well, I don't think you can say that it's clear and convincing that Lonnie Farris would have been fired if the stated reason is a protected activity.

[00:30:22] Speaker 00:
That was the situation in the Chambers case with the Department of Interior, where they cited her complaints about it.

[00:30:30] Speaker 00:
OK, but what I'm asking you is this.

[00:30:32] Speaker 04:
If we agree with you on the contributing factor, and the board didn't address that factor in its last step, the CAR analysis, what should this court do at that point?

[00:30:52] Speaker 04:
Do we remand to the agency?

[00:30:55] Speaker 04:
What happens next if we go with your own?

[00:31:02] Speaker 00:
Our request here is that the court find that with that direct evidence of causation, the Navy's evidence cannot be clear and convincing.

[00:31:10] Speaker 00:
And we're asking for reversal to the Merit Systems Protection Board for what we call corrective action.

[00:31:16] Speaker 00:
That's what the statute requires of the board when

[00:31:21] Speaker 00:
agency's evidence is not clear and convincing.

[00:31:25] Speaker 00:
Then the whistleblower is entitled to corrective action, and we would like the Merit Systems Protection Board to decide what that corrective action would be.

[00:31:32] Speaker 00:
And of course, we'd be looking for interim relief of reinstatement to back pay the usual remedies that the law provides.

[00:31:40] Speaker 00:
Thank you very much.

[00:31:41] Speaker 04:
Thank you, counsel.

[00:31:45] Speaker 04:
Thank you for your arguments.

[00:31:46] Speaker 04:
The case will be submitted, and counsel are excused.