[00:00:01] Speaker 05: Case number 13-7158, Teresa Weston Saunders, appellant versus District of Columbia, a municipal corporation at Elm. [00:00:08] Speaker 04: Mr. Parks for the amici scurri, Ms. [00:00:10] Speaker 04: Anderson for the Apple East. [00:00:38] Speaker 01: Thank you, Judge. [00:00:40] Speaker 01: It may please the court. [00:00:41] Speaker 01: My name is Tom Sperch from the University of Georgia. [00:00:43] Speaker 01: The point is Amicus on behalf of the appellant, Teresa Saunders. [00:00:47] Speaker 01: Today, one of our third-year students, Aaron Parks, will be arguing on our behalf, and I'll be sitting at the council table. [00:00:52] Speaker 01: Thank you very much. [00:01:00] Speaker 02: Mr. Chief Judge, may it please the Court. [00:01:03] Speaker 02: My name is Aaron Parks. [00:01:04] Speaker 02: I'm here as amicus in support of the appellant, Teresa Saunders. [00:01:07] Speaker 02: With the Court's permission, I'd like to reserve two minutes for rebuttal. [00:01:12] Speaker 02: Ms. [00:01:12] Speaker 02: Saunders was demoted and terminated from the D.C. [00:01:14] Speaker 02: government by the defendants, and she subsequently sued them under the whistleblower provision of the False Claims Act. [00:01:20] Speaker 02: Ms. [00:01:20] Speaker 02: Saunders claims that the defendants retaliated against her because of disclosures she made while working at the office of the Chief Technology Officer, which was headed by Ms. [00:01:28] Speaker 02: Suzanne Peck. [00:01:29] Speaker 02: The district court ultimately rejected Ms. [00:01:31] Speaker 02: Saunders' claim and made two basic findings. [00:01:34] Speaker 02: First, the court found a lack of evidence showing Ms. [00:01:36] Speaker 02: Peck's involvement in Ms. [00:01:37] Speaker 02: Saunders' termination. [00:01:39] Speaker 02: And second, the district court found a lack of evidence showing that the defendants had knowledge of Ms. [00:01:43] Speaker 02: Saunders' activities. [00:01:45] Speaker 02: Both of these findings were based, at least in part, on the district court's refusal to consider Ms. [00:01:50] Speaker 02: Saunders' pretext evidence. [00:01:52] Speaker 02: And when this court considers all the evidence, it should hold that summary judgment was not appropriate. [00:01:57] Speaker 02: Beginning with Ms. [00:01:58] Speaker 02: Peck's involvement, after Ms. [00:02:00] Speaker 02: Saunders disclosed the financial irregularities occurring at the office of the Chief Technology Officer, the record is very clear that Ms. [00:02:06] Speaker 02: Peck was visibly upset and furious with Ms. [00:02:08] Speaker 02: Saunders. [00:02:10] Speaker 02: Ms. [00:02:10] Speaker 02: Peck went to Valerie Holt, the district CFO, and asked Ms. [00:02:14] Speaker 02: Holt if there was anything she could do to get rid of Ms. [00:02:15] Speaker 02: Saunders. [00:02:17] Speaker 02: In other words, Ms. [00:02:17] Speaker 02: Peck took an act that was intended to cause retaliation against Ms. [00:02:21] Speaker 02: Saunders. [00:02:22] Speaker 02: When Ms. [00:02:22] Speaker 02: Holt refused, Ms. [00:02:23] Speaker 02: Saunders then went to the mayor himself and asked if the mayor could do anything about Ms. [00:02:27] Speaker 02: Saunders. [00:02:29] Speaker 02: So the mayor asked Ms. [00:02:29] Speaker 02: Holt, who again refused. [00:02:31] Speaker 02: These acts by Ms. [00:02:32] Speaker 02: Peck that were intended to cause retaliation were purely based on the reports. [00:02:38] Speaker 02: Ms. [00:02:38] Speaker 02: Peck did not cite any errors with Ms. [00:02:40] Speaker 02: Saunders' performance. [00:02:41] Speaker 02: She simply was upset about these disclosures. [00:02:45] Speaker 02: This act intended to cause retaliation gives support to Ms. [00:02:49] Speaker 02: Saunders' theory that this was the ultimate reason for her termination, or at least played a part. [00:02:52] Speaker 03: None of this comes into play unless she qualifies as a whistleblower. [00:02:56] Speaker 03: That's correct, Your Honor. [00:02:57] Speaker 03: Unless this is... Unless she do, it qualifies her as a whistleblower. [00:03:00] Speaker 02: She was engaged in a protected activity as this court has interpreted the whistleblower provision of the False Claims Act. [00:03:07] Speaker 02: This court has interpreted that provision quite broadly to include anything that could reasonably lead to an action under the False Claims Act. [00:03:14] Speaker 02: And she disclosed millions of dollars of overpayment with no documentation from... She disclosed it up the chain of command. [00:03:22] Speaker 02: Well, she did disclose it first to the chain of command, but from there it went well beyond just her usual chain of command. [00:03:29] Speaker 02: Only at the direction of her supervisor? [00:03:31] Speaker 02: Well, she actually was communicating with the control board directly, and the control board was outside of her usual chain of command as the CFO of the office. [00:03:40] Speaker 03: Was she ever reprimanded for departing from established procedures in terms of that? [00:03:45] Speaker 03: No, Your Honor, she was... She was doing what she was advised to do, I believe. [00:03:48] Speaker 02: Well, she was specifically hired to go to the Office of the Chief Technology Officer to create financial statements for fiscal year 1998. [00:03:57] Speaker 02: She was not hired to disclose or discover fraud. [00:03:59] Speaker 02: She even testified that this is the type of work that's typically done by an outside accounting firm. [00:04:04] Speaker 02: Once she discovered these significant discrepancies, she reported, of course, to the Office of the Chief Technology Officer, as well as to the CFO, but to the Control Board, to the Office of Management and Budget, the Department of Treasury, the District Attorney, sorry, the District of Columbia's Inspector General's Office. [00:04:20] Speaker 03: Was any of that either improper or was she upgraded for doing any of that? [00:04:25] Speaker 02: Was it improper, Your Honor? [00:04:27] Speaker 03: Right. [00:04:27] Speaker 03: No. [00:04:28] Speaker 03: Was she upgraded by or supervised by Ms. [00:04:31] Speaker 03: Peck for any of that? [00:04:33] Speaker 02: Was she, was Ms. [00:04:34] Speaker 03: Peck upset with her for specifically... No, no, did she admonish her for doing something inappropriate when she did these reports? [00:04:42] Speaker 03: No, you're right, she was... She was upset, we know that. [00:04:44] Speaker 03: Right. [00:04:45] Speaker 03: The allegations, anyway, that she was extremely upset. [00:04:48] Speaker 03: Right. [00:04:49] Speaker 03: But there's no suggestion that I see that she was upset because the plaintiff had done something that set herself up in opposition, essentially, to her employer. [00:05:02] Speaker 02: Well, she wasn't upset because of who she reported it to. [00:05:06] Speaker 02: She was simply upset because of the problems that it caused for her office. [00:05:09] Speaker 03: Okay, so that, the supervisor being upset with an employee because of problems that have come to light is not sufficient to make that employee a whistleblower. [00:05:19] Speaker 03: You've got to do something more. [00:05:22] Speaker 02: Well, as I said before, she did report this to other agencies that were outside. [00:05:31] Speaker 03: But that wasn't because of Ms. [00:05:32] Speaker 03: Peck being upset. [00:05:35] Speaker 02: Right. [00:05:35] Speaker 03: She was upset because of what she was disclosing. [00:05:37] Speaker 02: Right. [00:05:38] Speaker 02: And that content is, those sort of disclosures are exactly the type of discoveries that the whistleblower provision of the False Claims Act are designed to protect, to make sure that people who have this sort of information are coming forward to prevent fraud on the government. [00:05:53] Speaker 02: And just because she, Ms. [00:05:54] Speaker 02: Peck, might not have been upset because of who she was reporting it to, she was upset about the content of it, which she... Did Ms. [00:05:59] Speaker 03: Saunders ever suggest that she was going to go to the press or...? [00:06:03] Speaker 02: The record does not make clear whether she herself threatened to go to the police. [00:06:09] Speaker 02: There's no allegation. [00:06:10] Speaker 02: There's no allegation of that. [00:06:11] Speaker 02: However, these reports were very widely distributed. [00:06:14] Speaker 02: They were a big deal in the government. [00:06:15] Speaker 02: They went to multiple agencies, both within the district government itself and the federal government. [00:06:21] Speaker 03: Who was her supervisor at this point? [00:06:24] Speaker 02: She was working in the office of the chief technology officer, but she technically reported to the district CFO, Valerie Holt, not to Ms. [00:06:31] Speaker 02: Peck herself. [00:06:32] Speaker 03: Right, so Ms. [00:06:32] Speaker 03: Peck wasn't even her supervisor. [00:06:34] Speaker 02: Was not her supervisor. [00:06:35] Speaker 02: No, you're not. [00:06:36] Speaker 03: So her ire is almost irrelevant to whether Saunders is a whistle-blower. [00:06:40] Speaker 02: No, Your Honor, her anger supports her theory, supports Ms. [00:06:45] Speaker 02: Saunders' theory that eventually she was the impetus behind, or at least part of the impetus. [00:06:50] Speaker 03: All that, fair enough, it's suggestive of that, but all of that is immaterial unless she's a whistleblower. [00:06:56] Speaker 02: Yes, Your Honor, but it's our position that she is a whistleblower, at least under the definition of a protected activity that this Court has construed from the whistleblower provision of the False Claims Act, because she was reporting on activities that reasonably could lead to an action under the False Claims Act, which is what this Court has required. [00:07:15] Speaker 03: By the way, what claim would it have been? [00:07:18] Speaker 02: eventually, these sorts of allegations could have led to a false claims action against either the district itself or maybe even against IBM. [00:07:26] Speaker 02: The fact that no false claims action was ever filed... Do we know that it was anything other than sloppy accounting? [00:07:32] Speaker 02: We do, Your Honor. [00:07:32] Speaker 02: The record makes clear that this was much more than just simple negligent bookkeeping or [00:07:38] Speaker 02: poor accounting procedures. [00:07:39] Speaker 02: Ms. [00:07:39] Speaker 02: Saunders reported specifically on over $7 million that had been paid to IBM without any documentation. [00:07:46] Speaker 02: IBM submitted invoices that included employees working 24 hours a day, every day for an eight-month period. [00:07:52] Speaker 03: Right, which could be a mistake or it could be a fraud. [00:07:55] Speaker 02: It could be a fraud, Your Honor, exactly, which is all that is required. [00:07:58] Speaker 03: Is there any suggestion that, okay, so you're saying that's all that's required? [00:08:02] Speaker 02: All this requires is that it's anything that reasonably could lead to an action under the False Claims Act. [00:08:07] Speaker 02: And the government argued in their response brief that Miss Saunders didn't have any subjective knowledge that this was fraud, that she didn't use the words fraud, but that's clearly not what this Court has required before. [00:08:15] Speaker 02: It's simply an objective analysis of whether this was something that could reasonably lead to an action under the False Claims Act. [00:08:22] Speaker 02: And to get back to what your honor mentioned earlier as to whether Ms. [00:08:25] Speaker 02: Peck's anger towards Ms. [00:08:27] Speaker 02: Saunders is relevant at all, Ms. [00:08:29] Speaker 02: Peck, we know that Ms. [00:08:30] Speaker 02: Peck went directly to the mayor himself who definitely had authority over Ms. [00:08:35] Speaker 02: Saunders and asked if the mayor could do anything to get rid of Ms. [00:08:38] Speaker 02: Saunders. [00:08:40] Speaker 02: and her direct supervisor, Valerie Holt, refused. [00:08:44] Speaker 02: However, when Ms. [00:08:45] Speaker 02: Holt stepped down in May of 2000 and Dr. Gandhi, one of the defendants, became CFO, who has a closer relationship with Mayor Williams, who had been appointed by Mayor Williams to multiple positions in the government, had a long history of working with the mayor to get control board oversight over the district government to get rid of that oversight. [00:09:03] Speaker 02: One month after someone with a closer relationship with Mayor Williams becomes CFO, Ms. [00:09:08] Speaker 02: Saunders was first demoted. [00:09:09] Speaker 06: I'm sorry, I'm just trying to read the Martin Baker case while you were talking on this question of reporting up the chain, the question that Judge Ginsburg was opening with. [00:09:19] Speaker 06: So was this not within the scope of Saunders' responsibilities to write this report? [00:09:28] Speaker 06: No, Your Honor, it was not. [00:09:30] Speaker 06: Was she assigned to the question of writing this, of looking at these questions? [00:09:34] Speaker 02: She was assigned specifically to create financial statements for that year. [00:09:39] Speaker 02: And these discoveries that she made were much more serious than those typically assigned to a CFO to deal with. [00:09:46] Speaker 02: She testified that these were the sorts of discoveries that usually were handled by an outside accounting firm. [00:09:53] Speaker 02: Typically, when something of this magnitude is discovered, they outsource it. [00:09:57] Speaker 06: How did she discover it? [00:09:59] Speaker 02: There were, there was, the record seems to indicate that there was several boxes of documents at the Office of the Chief Technology Officer relating to these Y2K contracts, and she and her team went through those documents. [00:10:09] Speaker 06: Do you think that they were acting outside the scope of their job by looking in those boxes? [00:10:15] Speaker 02: No, Your Honor. [00:10:15] Speaker 06: They were certainly hired to look into the finances of the... And when they discovered those things, wasn't it part of their job to report it? [00:10:23] Speaker 06: If you were the [00:10:24] Speaker 06: Chief Financial Officer, you discovered the kind of things you're talking about, and you didn't report it when you have a problem? [00:10:31] Speaker 06: Yes, Your Honor. [00:10:32] Speaker 06: So isn't that within the scope of her normal job responsibility? [00:10:37] Speaker 02: If she had just reported it to the Chief Technology Officer and the CFO, then perhaps she falls under the Martin Baker aircraft. [00:10:45] Speaker 02: But she went beyond that. [00:10:46] Speaker 02: Her second report went directly to the control board. [00:10:48] Speaker 02: It was distributed to... She sent it directly? [00:10:50] Speaker 02: Yes, the control board asked her to send it directly to them, and she did. [00:10:53] Speaker 06: And the control board was... Is that going on outside of the scope of her responsibilities when the governing body asks her for it? [00:11:00] Speaker 02: Well, they were asking because they were looking into these things that she had discovered. [00:11:04] Speaker 02: And so, it was outside of her usual reporting procedures. [00:11:08] Speaker 02: Typically, she just reports directly to the CFO or to the agency she was working for. [00:11:11] Speaker 06: Well, this is what's hypothetical for you. [00:11:13] Speaker 06: The Inspector General of a government agency finds fraud in the agency. [00:11:19] Speaker 06: That's his job. [00:11:20] Speaker 06: The title of the job of the Deputy Inspector General is, find fraud in this agency. [00:11:26] Speaker 06: the inspector general finds fraud. [00:11:29] Speaker 06: Now, at that point, there's no possible False Claims Act whistleblower claim or anything available, is that right? [00:11:36] Speaker 06: Right, Your Honor. [00:11:37] Speaker 06: Okay. [00:11:37] Speaker 06: And then Congress hears about this and says, send us your report. [00:11:44] Speaker 06: And they send the report. [00:11:47] Speaker 06: Does that change? [00:11:48] Speaker 06: is that there is a there's a separate one for sort of reporting to a government body and being punished for it, isn't there? [00:11:55] Speaker 06: Isn't there some kind of separate retaliation theory about that? [00:11:58] Speaker 02: There probably is a retaliation statute. [00:12:01] Speaker 06: More like a First Amendment argument. [00:12:03] Speaker 02: Right, Your Honor. [00:12:04] Speaker 02: However, this was an action that could lead to a false claims act. [00:12:08] Speaker 02: It reasonably could lead. [00:12:09] Speaker 02: And she did report to, it wasn't just the Control Board, Your Honor. [00:12:13] Speaker 02: It was also the Office of Management and Budget, the Department of Treasury, [00:12:18] Speaker 02: the Government Accountability Office, the General Services Administration. [00:12:22] Speaker 02: These were agencies that typically Ms. [00:12:24] Speaker 02: Saunders was not involved in. [00:12:25] Speaker 02: She testified that in her 18 years of experience in the district as a CFO, she had never had meetings with some of these agencies before. [00:12:33] Speaker 02: These were things that this was more than just simple. [00:12:35] Speaker 03: You mentioned the control board asked for [00:12:36] Speaker 03: How did it get to GSA? [00:12:38] Speaker 03: Was that her initiative? [00:12:39] Speaker 02: I'm not sure. [00:12:40] Speaker 02: The record doesn't make clear. [00:12:41] Speaker 02: Perhaps it was just sent between the different agencies. [00:12:43] Speaker 02: We know from the record that several government agencies within the district government had to set up liaisons and new reporting procedures between the government agencies. [00:12:54] Speaker 03: There's no allegation that she sent it to anyone outside of either her chain of command or an appropriate request? [00:13:02] Speaker 02: It's our position that she did report it outside of her chain of command. [00:13:06] Speaker 03: What is the allegation? [00:13:07] Speaker 03: What's the evidence? [00:13:09] Speaker 02: Well, the record makes clear that she sent it to the control board, at least specifically. [00:13:14] Speaker 03: That was at their request. [00:13:15] Speaker 02: Well, it was at their request after her original report had been sent to the CFO, and they realized that there were serious issues occurring. [00:13:23] Speaker 03: I understand that, but insofar as it goes to the CFO, the boss, or to the control board at their request, she's not setting herself up as a whistleblower. [00:13:32] Speaker 03: If she sends it to the FBI on her own initiative, we have a different case. [00:13:38] Speaker 02: Yes, Your Honor, but just because she didn't, you know, go extremely outside of the chain of command, she still went outside of her chain of command. [00:13:45] Speaker 03: Her chain of command was simply – At least you said we don't know how GSA got a hold of it. [00:13:49] Speaker 02: It was sent between a bunch of different agencies within the government. [00:13:52] Speaker 03: It doesn't make clear – So what's your support for saying she sent it outside her chain of command, except for the control board, which was on request? [00:14:00] Speaker 02: Well, whether she sent it or not, it was eventually circulated outside of her chain of command. [00:14:04] Speaker 02: The purpose of the Martin Baker aircraft exception is to make sure that employers are on notice that what the person is doing might be a protected activity, might lead to a False Claims Act claim. [00:14:18] Speaker 02: And so Martin Baker doesn't make it clear whether the person has to, of their own initiative, take it to someone outside the chain of command. [00:14:24] Speaker 02: This report was distributed outside of her chain of command. [00:14:27] Speaker 02: which would put our employer on notice that, first of all, she was engaging in potentially protected activity that could lead to some sort of litigation later, whether she had subjective belief of that or not. [00:14:38] Speaker 06: I tell you, your principal argument here is that she was just on a limited project to do the financial statements, and that was not the assignment to do this entire analysis that she did. [00:14:49] Speaker 02: Yes, Your Honor, that's correct. [00:14:50] Speaker 02: Okay. [00:14:51] Speaker 06: I'm sorry to interrupt. [00:14:52] Speaker 02: No problem. [00:14:55] Speaker 02: The district court also found that there was no evidence showing that the defendants had knowledge of Ms. [00:15:00] Speaker 02: Saunders' activities. [00:15:01] Speaker 04: Let me be clear. [00:15:02] Speaker 04: The evidence was that OMB and the Treasury Department requested the district government to provide these financial reports. [00:15:18] Speaker 04: Mrs. Holt, the CFO, told your client, [00:15:24] Speaker 04: that the Office of Technology was in a mess, go look at these 15 boxes and prepare the reports. [00:15:34] Speaker 04: Mrs. Sanders did that, but she found she couldn't prepare the reports because she found these problems. [00:15:44] Speaker 04: So she wrote up a report. [00:15:47] Speaker 04: She presented it to Mrs. Holt. [00:15:50] Speaker 04: Mrs. Holt and the city administrator, Mr. Dang, [00:15:54] Speaker 04: told her to amend it and indeed it said that she couldn't tell until she got the records whether OMB had been, whether IBM had been improperly paid or not. [00:16:13] Speaker 04: So she files this report, she goes and there's a meeting, all right, and the control board is at the meeting. [00:16:23] Speaker 04: and they want to see the report. [00:16:26] Speaker 04: Do you think it's at all relevant that Mrs. Sanders is operating in a new governmental construct created by Congress to help get the district's fiscal affairs in order? [00:16:47] Speaker 04: And until it was able to show that it had done that, [00:16:54] Speaker 04: the control board would continue to exist. [00:16:58] Speaker 04: And the CFO was set up precisely to find out where all the problems were in these agencies. [00:17:07] Speaker 04: And wasn't that what Mrs. Sandersbrook did? [00:17:09] Speaker 02: Your Honor, my time is expired. [00:17:11] Speaker 02: May I briefly respond? [00:17:12] Speaker 06: Please, we've got more questions, I'm sure. [00:17:15] Speaker 02: It is relevant that [00:17:17] Speaker 02: that there was problems at the Office of the Chief Technology Officer when Ms. [00:17:22] Speaker 04: Saunders was sent... Throughout the district government, according to Congress. [00:17:24] Speaker 02: Correct. [00:17:24] Speaker 02: That's why the control board was set up, actually. [00:17:26] Speaker 02: And Your Honor's explanation of the control board and its relationship to the district government supports our argument that Mr. Cabell, one of the defendants, had knowledge of these reports. [00:17:39] Speaker 02: He claims that he didn't. [00:17:40] Speaker 02: However, given his position on... So let me just be clear. [00:17:42] Speaker 04: The Chief Judge gave you a hypothetical of the Inspector General. [00:17:46] Speaker 04: who issues a report about an agency pointing out all kinds of problems. [00:17:54] Speaker 04: Six months pass, and the department does a reduction in force. [00:18:01] Speaker 04: Now, this doesn't work because the Inspector General is this independent physician. [00:18:09] Speaker 04: But let's suppose it's not, and that the agency head could [00:18:16] Speaker 04: extend a reduction in force to the subordinate Inspector General. [00:18:26] Speaker 04: Could the Inspector General bring a whistleblower claim under the False Claims Act? [00:18:36] Speaker 02: Well, I think the distinction there is in the nature of their positions. [00:18:40] Speaker 04: No, take my hypothetical as I gave it to you. [00:18:43] Speaker 04: an employee of the agency who uncovers reporting problems such that the agency cannot prepare its financial reports. [00:18:55] Speaker 02: In your honor's hypothetical, that person probably could not because their specific job description is to deter fraud or discover fraud. [00:19:03] Speaker 02: Whereas Ms. [00:19:03] Speaker 02: Saunders' position as a CFO is simply to create financial statements to prepare them so that the district could see where the problems were and work to get- So the district could respond to OMB and the Treasury Department. [00:19:19] Speaker 04: That was her initial assignment, wasn't it? [00:19:23] Speaker 04: And she's a CFO. [00:19:25] Speaker 02: That's correct, Your Honor. [00:19:25] Speaker 04: That was designed to find out all these problems with the district's accounting system. [00:19:29] Speaker 02: Specifically to create reports of how the government or how the agency was spending the congressional funds. [00:19:36] Speaker 02: Yes, Your Honor. [00:19:39] Speaker 00: Okay. [00:19:40] Speaker 02: And given that the control board had such close oversight, as Your Honor explained, that Mr. Cavell's explanation that he had no knowledge of these reports simply doesn't make any sense. [00:19:52] Speaker 02: His position was, for his position on the control board, part of his job was to make sure that these problems did not continue. [00:19:58] Speaker 02: They needed one more clean audit to remove control board oversight. [00:20:02] Speaker 06: This goes to the second theory, right? [00:20:05] Speaker 06: You have two theories. [00:20:06] Speaker 06: One is the... [00:20:08] Speaker 06: Peck did it either directly through Williams and Gandhi or number two that Gandhi and or and or Cabell on their own did it, right? [00:20:17] Speaker 06: Yes, your honor. [00:20:18] Speaker 06: So let me ask you about that one I read the Opposition to the motion for summary judgment. [00:20:25] Speaker 06: I find it a little hard to see that More than a little hard to see that theory in the opposition But [00:20:35] Speaker 06: You're treating this as a question of whether the argument is forfeited or wavered by waived by being raised below, and I want to ask it a different way. [00:20:46] Speaker 06: The district court in this case was presented with that theory on reconsideration, right? [00:20:51] Speaker 06: Yes, Your Honor. [00:20:52] Speaker 06: In a 60-B motion, right? [00:20:53] Speaker 06: Yes, Your Honor. [00:20:54] Speaker 06: And she denied it, saying it was new. [00:20:58] Speaker 06: In her view, it was new, right? [00:21:00] Speaker 06: That's correct. [00:21:01] Speaker 06: The standard for our review of 60B motions is not, well, is it forfeited or not, or waived or not, and do we think it's unfair, or do we want it? [00:21:12] Speaker 06: It wasn't an abuse of discretion by the district judge, right? [00:21:16] Speaker 06: Correct. [00:21:16] Speaker 06: So for us to consider this second theory, the issue is not really whether [00:21:22] Speaker 06: it was hinted at, inferred, et cetera below, but whether the district court abused its discretion in regarding it as a new theory, right? [00:21:32] Speaker 02: Yes, Your Honor, that is the correct standard for reviewing the Rule 60B motion for reconsideration. [00:21:39] Speaker 02: However, it's our position that Ms. [00:21:41] Speaker 02: Saunders' argument in that Rule 60B motion was correct, that this was not a completely new theory. [00:21:46] Speaker 06: Right, but it's not, it wouldn't be enough [00:21:50] Speaker 06: for us to conclude it was correct. [00:21:51] Speaker 06: We would have to conclude it was an abuse of discretion by the district court to say that it was not, right? [00:21:58] Speaker 02: Well, this court could also look at just the original summary judgment motion of the response and do the de novo review on that portion of the materials and not even look to the motion for reconsideration to determine whether under de novo review that argument was... Well, if we don't overturn her decision to reconsider, [00:22:18] Speaker 06: then I don't see how we can get to that argument. [00:22:21] Speaker 06: You ask that specific thing, she specifically ruled that it wasn't raised, and we have to decide whether that was an abuse of discretion. [00:22:29] Speaker 06: What's your best argument? [00:22:33] Speaker 06: Your brief cites interrogatories, complaints, et cetera, but when it comes time to argue about summary judgment, [00:22:41] Speaker 06: We have a lot of cases that say you can't sort of bury your claim somewhere in the district court record. [00:22:46] Speaker 06: You have to present them to the district court. [00:22:49] Speaker 06: So the memorandum of points and authorities is the place, right? [00:22:54] Speaker 02: Yes, Your Honor, in the response to the motion for summary judgment. [00:22:57] Speaker 06: Right, right. [00:22:59] Speaker 06: So as I read it on page 20, [00:23:02] Speaker 06: I guess maybe you could tease out the argument you're making, which is a very good job for amicus. [00:23:08] Speaker 06: I always appreciate it. [00:23:10] Speaker 06: But the question is whether the district court could have teased that out. [00:23:14] Speaker 06: I'm finding it a little difficult to see. [00:23:15] Speaker 06: I see the argument that Peck was the mover here. [00:23:19] Speaker 06: I don't really see the argument that Gandhi or Cabell independent of Peck were. [00:23:25] Speaker 06: Do you agree with what I'm saying? [00:23:26] Speaker 02: It's true your honor that Council below did not explicitly connect those dots in the way that we have in our brief. [00:23:33] Speaker 02: However, it's our position that [00:23:37] Speaker 06: You can't suddenly come to the court of appeals or even to the district court after a judgment and say, hey, you know, we got a new theory here. [00:23:46] Speaker 06: It's better than our old theory. [00:23:48] Speaker 02: Well, it's our position that it was not a new theory. [00:23:50] Speaker 02: It's our position that in the response to the motion for summary judgment, this council simply laid out the story of what happened and that [00:23:58] Speaker 02: didn't explicitly even argue for just the purely Peck's motivation theory, but simply just laid out what happened, how both of the named defendants were involved. [00:24:08] Speaker 02: Specifically, beginning on page 334 of the joint appendix. [00:24:14] Speaker 02: On page what? [00:24:14] Speaker 02: 334 of the joint appendix. [00:24:16] Speaker 02: Ms. [00:24:18] Speaker 02: Saunders' response to the motion for summary judgment lays out how the Office of the Chief Technology Officer was having trouble documenting their financial reports for this 14-month period. [00:24:27] Speaker 02: It talks about how clean audits were important for the Mayor as well as for Mr. Cabell and his position at the Control Board. [00:24:34] Speaker 02: and talks about how Mr. Cabell was involved as the CFO for 12 of those 14 months, talks about how Dr. Gandhi's story about her demotion and termination is untrue, talks about the close ties between Mr. Cabell, Dr. Gandhi, and the mayor. [00:24:48] Speaker 06: It can't be enough to lay out a bunch of facts in something like this. [00:24:53] Speaker 06: You have to lay out a theory. [00:24:57] Speaker 06: actually make a good point, which is in the theory part, there's no theory. [00:25:01] Speaker 06: Well, that suggests summary judgment was appropriate, period. [00:25:04] Speaker 06: Now maybe there's, I hate to whisper these words twice in the same day, but maybe there was ineffective assistance of counsel below. [00:25:12] Speaker 06: But if you don't even present the district court with a theory of animus, then [00:25:19] Speaker 06: I don't know. [00:25:20] Speaker 06: It's true we reviewed de novo, but we have to review something de novo, and something has to be the claims that are presented, not, you know, here's 20 pages of facts and see if you can figure out the theory. [00:25:33] Speaker 02: I think, despite the fact that it wasn't clearly laid out, reading the response to the motion for summary judgment, as well as the summary judgment materials, the interrogatories, the complaint itself, and other depositions, it's clear that Ms. [00:25:47] Speaker 02: Saunders believed that these defendants were involved in her termination, that they had something to do with it from the very beginning. [00:25:53] Speaker 02: The complaint itself says that the defendants were directly responsible for her termination, not Ms. [00:25:59] Speaker 02: Peck. [00:25:59] Speaker 02: The complaint says that the defendants were responsible for this. [00:26:01] Speaker 06: So let's go, just let me think for just one second, since we're way over on, what is the theory that Gandhi and Cabell had any animus against her? [00:26:12] Speaker 06: Independent of Peck. [00:26:15] Speaker 02: Right. [00:26:16] Speaker 02: So they were both in positions in the district government where getting rid of control board oversight by getting one more year of clean audits was crucial to them. [00:26:25] Speaker 06: Yeah. [00:26:25] Speaker 06: So they have an example of something she did in the past, really good work in the past. [00:26:30] Speaker 06: But that work is done. [00:26:32] Speaker 06: So why would they punish her for, I mean what's the reason that they would, some theory that they would think that the next time she did an audit she would be super careful again and they wanted somebody who wasn't super careful, is that the theory? [00:26:49] Speaker 02: Well, there's two specific things I would point to, Your Honor. [00:26:51] Speaker 02: First is the fact that a reasonable jury could find that they wanted to make sure that these sorts of issues didn't come up again. [00:26:58] Speaker 04: And that's why the mayor set up that task force and Mr. Cavell put your client on it. [00:27:06] Speaker 02: Right. [00:27:06] Speaker 04: So that these kinds of issues and problems could be identified. [00:27:12] Speaker 04: and the financial report would not be delayed. [00:27:15] Speaker 04: In other words, they brought her into the loop. [00:27:18] Speaker 04: They didn't exclude her from the loop because of what she had done. [00:27:22] Speaker 04: They were taking advantage. [00:27:24] Speaker 04: They wanted somebody in there who could get rid of these problems and help them get this report done in a timely manner. [00:27:33] Speaker 02: Well, in fact, Ms. [00:27:34] Speaker 02: Saunders' move to the special projects team was a demotion for her. [00:27:37] Speaker 02: She was no longer a CFO. [00:27:39] Speaker 04: She alleges that. [00:27:40] Speaker 06: But Judge Rogers is on to this point here, which is why would you bring the person that you're afraid of finding audit mistakes into the task force for finding audit mistakes? [00:27:53] Speaker 06: Well, Your Honor, first of all... If your goal is to not find audit mistakes, that seems really [00:27:59] Speaker 06: I hadn't thought of it that way, but Judge Rogers raised a point that really seems quite striking here. [00:28:04] Speaker 02: Well, a reasonable jury could find that they did that to move Ms. [00:28:07] Speaker 02: Saunders directly under Mr. Cabell's supervision at the special projects team. [00:28:11] Speaker 02: Before, she was at the lottery where she was under supervision. [00:28:13] Speaker 06: On the lottery, she's not going to be finding anything in Okta or anything like that. [00:28:17] Speaker 02: Right, but also at the lottery, they don't have the ability to terminate her, which is what they did one month after they brought her to the special projects team. [00:28:24] Speaker 06: As we just discussed, your theory has to be that for the next audit, not the past one, she's going to find something that's going to slow things down. [00:28:32] Speaker 06: That's your theory. [00:28:33] Speaker 06: Or disrupt the ability to get rid of... Yes, which seems like the right place to keep her is in the lottery, where she's not going to... Just what Judge Rogers asked. [00:28:40] Speaker 06: I'm sorry to repeat what you asked, but just what Judge Rogers asked. [00:28:43] Speaker 06: Why... [00:28:45] Speaker 06: Why not leave her in a safe place where she can't disrupt Cabell and Gandhi's program, if we assume that there is such a program? [00:28:55] Speaker 02: Respectfully it was reasonable jury could find the inference that I explained before that they brought her to the special projects team so that she would be Where under where? [00:29:05] Speaker 02: Mr. Cabell and dr. Gandhi would have the ability to terminate her which they did exactly one month after they brought her on board Maybe perhaps they were still angered by the issues and the delays that her original reports had caused the I mean what you want us to do and want the jury to do is to [00:29:23] Speaker 04: You say counsel below maybe didn't connect the dots. [00:29:28] Speaker 04: But the problem is, does the evidence, is the evidence there from which a reasonable jury could draw reasonable inferences of animus as to Dandy and Cabell? [00:29:43] Speaker 04: And the only theory is that they were, because they held those positions, [00:29:51] Speaker 04: They necessarily would have had animus against anybody who found problems that their office was designed to find and correct. [00:30:03] Speaker 04: And doesn't that just collapse on its own weight? [00:30:07] Speaker 02: No, Your Honor. [00:30:07] Speaker 02: It's our position that there is sufficient evidence that a jury could find that in order to make sure that they got the last clean audit that they needed and got rid of it. [00:30:15] Speaker 04: So what the government really wanted to do was not to bring in anybody who could help them find mistakes, but get their financial reports out in a timely manner and then have OMB and the Treasury Department and the Congress [00:30:30] Speaker 04: say, well, we have to keep the control board in even longer because there are all these problems with the financial report that weren't found by the district government because Mrs. Sanders wasn't there to identify them. [00:30:44] Speaker 04: Well, they wanted to make sure that they... I mean, these people are, you know, the mayor had worked for the control board. [00:30:55] Speaker 04: I mean, these are sophisticated people dealing with the federal agencies in Congress. [00:31:00] Speaker 02: That's correct, Your Honor, and they wanted to make sure that they got that last clean audit that they needed, and it's a reasonable inference from that that they viewed Ms. [00:31:08] Speaker 02: Saunders as an obstacle to doing so, given that her disclosures about the IBM issues had posed such a huge problem for them in closing out both the 1999 and the 1998 comprehensive annual financial report that they decided that they'd rather not take the risk that she would pose some sort of problem in the future. [00:31:25] Speaker 03: I wouldn't. [00:31:26] Speaker 03: suggested a completely different inference for your information, which is that Ms. [00:31:31] Speaker 03: Pack, having drawn, let's say, a red line and laid down a red line, and then had an important credibility stake in following through and making sure that Ms. [00:31:43] Speaker 03: Saunders never worked in the D.C. [00:31:44] Speaker 03: government again. [00:31:46] Speaker 02: Yes, Your Honor. [00:31:47] Speaker 02: That's certainly something that the jury would also consider. [00:31:49] Speaker 03: And that's maybe a warped view of the world, having grown up in Chicago. [00:31:55] Speaker 02: The judge's question asked me to consider just the independent motivations, but it is our position that when you consider Ms. [00:32:04] Speaker 02: Peck's intent, her explicit retaliatory animus, on top of the independent motivations and their relationship with Mayor Williams, that a reasonable jury could find that some combination of Cabell's, Gandhi's, and Ms. [00:32:16] Speaker 02: Peck's animus led to her being terminated because of her protected activity. [00:32:20] Speaker 04: Of course, your client had all kinds of other theories why she was terminated, too, but she didn't bring those claims in time. [00:32:28] Speaker 02: She also had a gender discrimination and a racial discrimination claim that she did not oppose summary judgment on below. [00:32:34] Speaker 04: Well, she was barred by the statute of limitations. [00:32:38] Speaker 02: Right. [00:32:40] Speaker 02: All that's left is her False Claims Act retaliation claim. [00:32:44] Speaker 04: And the only evidence is to Mrs. Peck and the mayor [00:32:50] Speaker 04: is a press release issued by the mayor's office along with the chairman of the city council regarding the mayor's effort to get more control over the school board and it merely mentions two organizations that were supportive of this and somehow that [00:33:18] Speaker 04: is enough to connect Mrs. Peck, because her husband contributed money to these organizations. [00:33:27] Speaker 04: And Mrs. Peck did too. [00:33:30] Speaker 02: That is one piece of evidence, Your Honor. [00:33:32] Speaker 02: There's also the testimony of Miss Holt, who testified that Miss Peck had gone to the mayor to see about you. [00:33:37] Speaker 04: Oh, she testified the chief of staff. [00:33:41] Speaker 02: Someone in the mayor's office. [00:33:42] Speaker 02: So Miss Peck had gone. [00:33:43] Speaker 04: I thought it was the chief of staff. [00:33:44] Speaker 02: Yes, Your Honor, which means that Ms. [00:33:46] Speaker 02: Peck had somehow gotten in touch. [00:33:48] Speaker 04: We don't know. [00:33:48] Speaker 04: That's the gap in the evidence. [00:33:50] Speaker 02: Well, Ms. [00:33:51] Speaker 02: Holt testified that the mayor's office asked if there was anything she could do about Ms. [00:33:55] Speaker 02: Saunders, because Ms. [00:33:55] Speaker 04: Peck... A lot of people say that. [00:33:57] Speaker 04: That's all I'm getting at. [00:34:00] Speaker 04: I mean, I think you have to connect the dots. [00:34:03] Speaker 06: All right, we've gone way over. [00:34:05] Speaker 06: We'll probably give you time anyway, because we're really easy here. [00:34:09] Speaker 06: But let's move on to the other side. [00:34:11] Speaker 00: Thank you, Your Honor. [00:34:19] Speaker 05: Morning, Your Honors, Chief Judge Garland. [00:34:20] Speaker 05: May it please the Court? [00:34:22] Speaker 05: Stacey Anderson on behalf of the district appellees. [00:34:26] Speaker 05: The Court should affirm a summary judgment in the district's favor in this case. [00:34:30] Speaker 05: I'd like to discuss, I think, the causation element, which is what the district court focused on and what the court focused on this morning, as for whether or not [00:34:40] Speaker 05: Ms. [00:34:41] Speaker 05: Saunders engaged in a protected activity that was known to her employers. [00:34:45] Speaker 05: The record indicates that she was working within the scope of her employment when she made the disclosures that are at issue here. [00:34:51] Speaker 05: She was on a special assignment, and her job was to prepare not only financial statements, but also she was supposed to... How long was the job supposed to be for? [00:35:00] Speaker 05: Initially, she was given two weeks to prepare the financial statements. [00:35:03] Speaker 06: So this seems a little bit outside the scope of the two weeks, doesn't it? [00:35:06] Speaker 05: Yes, your honor. [00:35:07] Speaker 05: But again, it wasn't limited to preparing the financial statements alone. [00:35:11] Speaker 05: She was also, in her words, to assess, issue a performance report on operations. [00:35:16] Speaker 05: In other words, to delve into the manner in which the Y2K funds were being expended. [00:35:22] Speaker 05: uh, the manner in which october october was approving those expenditures. [00:35:26] Speaker 05: So she simply wasn't to produce the financial statements, but in her own words was also to issue this performance report on the actual operations of the unit. [00:35:33] Speaker 06: Isn't there, I mean, when it's described this way, you're given two weeks to do all the financial statements and whatever these other things. [00:35:40] Speaker 06: Don't we like at least have a jury question on whether this was in the scope of her [00:35:45] Speaker 06: responsibility or not, that's not a legal question, right? [00:35:49] Speaker 06: It is a fact question, right? [00:35:51] Speaker 05: Yes, whether it was within the scope of her responsibility. [00:35:54] Speaker 05: I'm relying on her own testimony. [00:35:58] Speaker 05: It was her testimony that she produced these reports, that that was part of her assignment. [00:36:05] Speaker 05: There's no indication that anybody thought she [00:36:07] Speaker 05: was doing anything that she wasn't supposed to be doing or was assigned to do. [00:36:10] Speaker 06: Not supposed to. [00:36:11] Speaker 06: I know I put it that way, but that's not really the question. [00:36:14] Speaker 06: It's not as if she was doing something unlawful or something. [00:36:16] Speaker 06: The question is whether she roved outside of her. [00:36:20] Speaker 05: And again, I don't believe so, Your Honor. [00:36:21] Speaker 05: She was in contact with CFL. [00:36:23] Speaker 06: Let me just ask another question. [00:36:24] Speaker 06: I think I already know the answer now that we've talked about it. [00:36:27] Speaker 06: But imagine that it was within the scope of her responsibilities. [00:36:31] Speaker 06: She found fraud, and the mayor said, you know what? [00:36:34] Speaker 06: I'm firing you because you found fraud. [00:36:36] Speaker 05: Absolutely. [00:36:37] Speaker 06: What was the claim there? [00:36:38] Speaker 06: What would her claim be? [00:36:39] Speaker 05: That would be a retaliation of false claims. [00:36:43] Speaker 06: And why would that be? [00:36:45] Speaker 06: If it was within her scope of responsibility. [00:36:47] Speaker 05: Oh, I'm sorry. [00:36:48] Speaker 06: I misunderstood. [00:36:50] Speaker 05: If the mayor says, because you disclose fraud, that shows that... The mayor says, look, you found fraud. [00:36:55] Speaker 06: I don't want anybody in my administration finding fraud. [00:36:58] Speaker 05: Right. [00:36:59] Speaker 05: The question about whether or not it's within the scope of her job duties goes to the question of whether or not the employer would have knowledge of her protected activity. [00:37:06] Speaker 05: So in your hypothetical, given the mayor's statement, somehow he was aware that she was disclosing fraud. [00:37:12] Speaker 06: But is it protected activity under those circumstances? [00:37:15] Speaker 06: So is that... [00:37:19] Speaker 06: I think there is this question about whether this is only a notice question or whether it's actually protected. [00:37:24] Speaker 05: Well, I mean, I don't think it's protected because I don't think she disclosed fraud. [00:37:26] Speaker 06: I'm asking more hypothetical. [00:37:28] Speaker 05: But in terms of the notice, would someone reading her reports be put on notice? [00:37:32] Speaker 06: Yeah, but so imagine that [00:37:35] Speaker 06: This is her assignment. [00:37:37] Speaker 06: Let's say she's the inspector general. [00:37:38] Speaker 06: My job is to find fraud. [00:37:41] Speaker 06: I found fraud, and leave the mayor out because he's elected. [00:37:45] Speaker 06: But let's make it be a CFO. [00:37:47] Speaker 06: The CFO says, gee, you found fraud. [00:37:50] Speaker 06: That looks bad. [00:37:50] Speaker 06: You're fired. [00:37:52] Speaker 06: And by the way, here's a notice to all employees. [00:37:54] Speaker 06: Don't ever find fraud again, because I will fire you. [00:37:58] Speaker 06: So is that a false claims act problem? [00:38:01] Speaker 06: Is that a whistleblower protection act kind of problem? [00:38:05] Speaker 06: What is that? [00:38:06] Speaker 05: I think the Office of the Inspector General presents a unique circumstance. [00:38:09] Speaker 05: But I do have an answer. [00:38:12] Speaker 06: Imagine it's just a plain old employee. [00:38:14] Speaker 06: Imagine it was her in this case. [00:38:16] Speaker ?: Right. [00:38:16] Speaker 06: I think if her job duties... Imagine it was her and this was her job to find fraud. [00:38:21] Speaker 06: She wasn't the inspector. [00:38:23] Speaker 05: Then again, I think she has to provide notice that she's acting outside the scope of those fraud-seeking duties. [00:38:30] Speaker 05: And for your inspector general's example, what I would say is probably typically an inspector general going outside and investigating a government agency and uncovering fraud, but not providing with whistleblower protections. [00:38:41] Speaker 05: But perhaps if he was not on assignment and he uncovered [00:38:44] Speaker 05: fraud within the office of the Inspector General and reported that that might give rise because that is not necessarily part of his assignment. [00:38:52] Speaker 06: I'm not being clear. [00:38:53] Speaker 06: It's my fault. [00:38:54] Speaker 06: The question is, I am a government employee whose job it is to find fraud. [00:39:02] Speaker 06: I'm not in the, for some reason I'm not in the [00:39:06] Speaker 06: in the inspector general's office. [00:39:09] Speaker 06: I find fraud. [00:39:10] Speaker 06: I report it to my immediate supervisor only, nobody else, as I'm supposed to. [00:39:16] Speaker 06: And the immediate supervisor says, you know, I know it's your job to find fraud, but actually we don't want anybody to find fraud here. [00:39:23] Speaker 06: You're fired. [00:39:24] Speaker 06: And puts it in writing. [00:39:26] Speaker 06: What is the cause of action of this? [00:39:29] Speaker 06: I'm sure there is a cause of action available to the employee. [00:39:31] Speaker 06: What is it? [00:39:32] Speaker 05: I'm not sure, Your Honor. [00:39:33] Speaker 06: But you think it's not the False Claims Act? [00:39:35] Speaker 05: I don't believe so, Your Honor. [00:39:36] Speaker 05: No. [00:39:37] Speaker 05: Again, no. [00:39:42] Speaker 04: I mean, again, the purpose of the... It could be another systems protection board or some action you bring before... I mean, it's tricky because she's an at-will employee. [00:39:49] Speaker 06: Yeah, so she's not an at-will employee. [00:39:53] Speaker 04: It could be a... I'm trying to... What is the false claim that you filed in that situation? [00:39:58] Speaker 05: Right. [00:39:58] Speaker 05: And again, I think... [00:40:00] Speaker 05: I don't know the answer to your honest question, to be honest. [00:40:02] Speaker 05: I think those could present much more difficult questions than the one that's before the court here. [00:40:06] Speaker 05: Again, I'll go back to our original position. [00:40:09] Speaker 05: She didn't disclose fraud. [00:40:10] Speaker 05: I think if you read the reports, there's no allegation of fraud in there. [00:40:13] Speaker 04: So would your position be that she would have to have [00:40:17] Speaker 04: sent her reports to the FBI or to the U.S. [00:40:21] Speaker 04: Attorney? [00:40:21] Speaker 05: No, I think my position is that she would have had to identify fraud and had to have indicated that... She would have had to say to Mrs. Holt, who was her supervisor. [00:40:30] Speaker 04: Right. [00:40:31] Speaker 05: I think IBM is defrauding the government. [00:40:34] Speaker 05: I believe that the requests for payment in this case are false. [00:40:37] Speaker 05: And what we have here is not an allegation... And then what? [00:40:41] Speaker 05: And then she would have made a protective disclosure at that point. [00:40:44] Speaker 05: To Mrs. Holt? [00:40:46] Speaker 05: To Mrs. Holt. [00:40:47] Speaker 05: You can't make it, the disclosure can't be to your employer. [00:40:51] Speaker 05: It's my understanding. [00:40:51] Speaker 04: It does not have to be outside. [00:40:53] Speaker 04: Her job is to find fraud. [00:40:55] Speaker 04: She tells her supervisor that she's found fraud and she's fired because she found fraud. [00:41:06] Speaker 04: And she's an at-will employee. [00:41:07] Speaker 04: What is her cause of action, if any? [00:41:10] Speaker 05: Again, I just dispute that her job in this case was to find fraud. [00:41:15] Speaker 04: No, I understand that, but this was a hypothetical. [00:41:16] Speaker 04: Again, I don't know. [00:41:17] Speaker 05: I'm not sure I know the answer to that question. [00:41:18] Speaker 05: I think it's a very difficult question where you have an employee who was actually engaged in a search for fraud and what happens when they find fraud and are terminated. [00:41:25] Speaker 05: I'm sure there's case law out there, and I just simply haven't looked at that, and I'm not quite sure. [00:41:29] Speaker 04: I'm not sure there is. [00:41:30] Speaker 05: Right, and I'm not sure either. [00:41:32] Speaker 05: All right. [00:41:33] Speaker 05: But in terms of the analysis, I'm not quite sure how the court would come out on that. [00:41:37] Speaker 04: I do know in this case. [00:41:37] Speaker 04: Well, what I'm trying to understand, though, is from the defendant's perspective, whoever is named as the defendant, at what point are you aware that this could rise to the level of false claim if the employee is acting within the scope of his or her employment? [00:42:04] Speaker 04: when the employee comes to you and says, I've uncovered fraud. [00:42:08] Speaker 04: Well, I'm thinking about some of the cases we've all read about just very public in the Defense Department and elsewhere. [00:42:16] Speaker 04: And I'm just trying to think of the situation where notice isn't required, but some action is required on behalf of the employee that is [00:42:27] Speaker 04: incompatible or inconsistent, and along the lines of the questions Judge Ginsburg was asking, was she ever disciplined for what she did? [00:42:38] Speaker 05: Again, you know, again, I think she needs to undertake an overt act. [00:42:41] Speaker 05: Going outside the chain of command is one example. [00:42:44] Speaker 05: An express statement to her superiors that she's reporting fraud is another example. [00:42:50] Speaker 05: When I talk about her duties being [00:42:53] Speaker 05: their actions in this case being within the scope of her employment. [00:42:55] Speaker 05: What I'm referring to is the preparation of the financial reports, the preparation of the performance reports. [00:43:01] Speaker 05: Those were within the scope of her duties. [00:43:03] Speaker 05: I don't think that she was specifically tasked for looking for fraud in this case. [00:43:06] Speaker 05: In enacting within the scope of what she was assigned to do, she happened to uncover what she alleges was fraud. [00:43:12] Speaker 05: It's a district position, it wasn't, but at that point, she needs to put her employer on notice that what she intends to report is fraud, not [00:43:21] Speaker 05: financial statements and not performance reports. [00:43:24] Speaker 04: So this may be a bad analogy, but I'm just trying to think of what has to happen in this sense that the employee is preparing the reports. [00:43:33] Speaker 04: She discovers that the procedures are inconsistent with not only regulation, but District of Columbia law, federal law, [00:43:48] Speaker 04: and where she reports that to her supervisor. [00:43:56] Speaker 04: What is the false? [00:43:58] Speaker 04: When does the false claim kick in? [00:44:00] Speaker 05: Right, exactly. [00:44:01] Speaker 05: That alone does not satisfy the False Claims Act. [00:44:04] Speaker 05: What she has to report is not noncompliance with other laws and regulations, but fraud. [00:44:10] Speaker 05: She doesn't have to understand that she has a right under the False Claims Act, but she has to understand that someone's stealing from the government, and that's what she has to intend to convey, that there is a theft going on, that someone is being paid for something that they're not entitled to receive payment for. [00:44:22] Speaker 05: And we don't have that here. [00:44:24] Speaker 06: Well, isn't that a jury question also? [00:44:25] Speaker 06: It seems like at least a number of the things that she's talking about, undocumented expenses, etc. [00:44:31] Speaker 06: I guess you could regard those as failures to document, but you could also regard those as suggestion that expenses never occurred. [00:44:39] Speaker 05: But that's not sufficient again, Your Honor. [00:44:41] Speaker 05: She has to intend to convey fraud. [00:44:43] Speaker 05: And I'll point, Your Honor, to this Court's decision. [00:44:45] Speaker 06: When you say intend, you mean her subjective intent? [00:44:47] Speaker 05: She has to have a subjective belief that she is disclosing fraud. [00:44:50] Speaker 05: And I think if you look at the reports in this case, that she's not intending to disclose fraud. [00:44:54] Speaker 05: What she's intending to disclose is financial irregularities, accounting problems. [00:44:58] Speaker 05: She's not saying that the services that were being billed for services... She's going to testify that she was reported. [00:45:05] Speaker 05: She had an opportunity to testify in this case. [00:45:07] Speaker 05: The word fraud doesn't appear anywhere in her testimony. [00:45:09] Speaker 06: Fraud isn't the only word in the list of things, is it? [00:45:12] Speaker 06: uh... illegality with respect but with respect to fraudulent claims not simply a look at that i mean i have some questions whether a jury could whether this is so clear on the face that no jury could conclude that she was talking about fraud rather than other things and i think i think it is your honor i think it is a focus on the uh... [00:45:35] Speaker 05: Your Honor, again, I think there's no question that Peck was aware of the disclosures. [00:45:39] Speaker 05: I think, viewing the evidence in the light most favorable to the plaintiff, Ms. [00:45:44] Speaker 05: Saunders, that Peck was upset with her. [00:45:46] Speaker 05: The difficulty we have here is that we don't have any evidence that Peck caused her termination. [00:45:51] Speaker 05: There was a causal connection between the animus that Peck felt. [00:45:54] Speaker 05: And again, the animus in particular is also an issue with respect to Peck, because we don't know if she had animosity simply because [00:45:59] Speaker 05: the financial irregularities were disclosed or whether she had animosity because fraud was disclosed. [00:46:04] Speaker 05: And the FCA, again, only protects animosity related to fraud related disclosures. [00:46:09] Speaker 05: So if Peck had animus torture for any other reason besides having uncovered fraud, then that's not protected by the FCA. [00:46:17] Speaker 05: So there's really no indication that Peck was upset about the discovery of fraud versus the discovery of Okto's apparent inability to [00:46:24] Speaker 05: to keep records and prepare financial statements. [00:46:29] Speaker 03: That lashes this question to the prior one. [00:46:32] Speaker 03: If a reasonable jury could conclude there was fraud or that she had uncovered fraud, then presumably it would follow that the employer was on notice of this fraud. [00:46:52] Speaker 05: right right and certainly if you can do the record is is is just one disclosure of fraud and i think that's the first step that she engaged in a protected activity i think pack was aware of the disclosure so i think you get knowledge but at what point and the next step in the analysis is causation what did peck do to cause a termination and i think the record here is just simply as you said judge rogers uh... they haven't connected the dots peck has animus eleven months after she expresses that animus [00:47:22] Speaker 05: and the Saunders is terminated by an entirely different person, Dr. Gandhi. [00:47:25] Speaker 05: There's no evidence of communications between Peck and Williams, the mayor, and Williams and Gandhi. [00:47:31] Speaker 05: We have simply, Gandhi is agreed here as the decision maker in this case, and so there's simply no evidence from which a rational, reasonable jury could infer that Peck caused determination by undertaking some overt act that led Gandhi to make the decision to terminate her. [00:47:45] Speaker 05: And so I think that's where the, [00:47:48] Speaker 05: kind of cat's paw theory that they rely on with respect to Peck fails and the district court agreed with that as well. [00:47:54] Speaker 05: That was the basis of the district court's decision that there simply was nothing connecting Peck to the actual decision to terminate Ms. [00:48:02] Speaker 05: Saunders not withstanding her complaints. [00:48:05] Speaker 06: Further questions from the back? [00:48:07] Speaker 06: Thank you. [00:48:08] Speaker 05: Thank you, Your Honor. [00:48:09] Speaker 05: Should we ask for your firm? [00:48:11] Speaker 06: Yeah. [00:48:11] Speaker 06: Well, you went way over. [00:48:12] Speaker 06: Not your fault. [00:48:12] Speaker 06: But I'm speaking now to the Palin. [00:48:16] Speaker 06: But nonetheless, we'll give you another minute. [00:48:20] Speaker 03: Can we confine the reply to the scope of the... Yes. [00:48:25] Speaker 06: Yes. [00:48:26] Speaker 06: In light of the previous case, your reply should be confined to the scope of the other counsel's argument. [00:48:33] Speaker 02: Thank you, Your Honor. [00:48:36] Speaker 02: The government argues that Ms. [00:48:38] Speaker 02: Saunders did not have a subjective belief that she was disclosing fraud. [00:48:43] Speaker 02: Two brief responses to that argument. [00:48:45] Speaker 02: First, that's not what's required. [00:48:47] Speaker 02: Her subjective knowledge of whether it was fraud or whether she used the word fraud. [00:48:50] Speaker 04: I think we were trying to explore with counsel when the line is crossed. [00:48:59] Speaker 02: The line between fraud and? [00:49:01] Speaker 04: When you have a whistleblower false [00:49:07] Speaker 04: Claims Act, cause of action. [00:49:12] Speaker 02: This Court has said that that line is crossed whenever the activity is something that reasonably could lead to an action of the False Claims Act, which makes no mention of what she subjectively believes she was reporting on. [00:49:22] Speaker 02: But looking more specifically to the factual issue in this case, Ms. [00:49:26] Speaker 04: Saunders' original report... So your theory is, so I'm clear, that any time an employee whose job is to [00:49:38] Speaker 04: prepare financial statements, and that employee discovers money has been paid out without the records that are required by statute or regulation. [00:49:54] Speaker 04: That if a subsequent adverse action is taken against that employee, [00:50:03] Speaker 04: that employee has a whistleblower false claim? [00:50:09] Speaker 04: Not anytime, Your Honor, but in the facts of this case... No, no, you've got to stick with me on this because I think that what the evidence shows in terms of Mrs. Hull telling your client that the Office of Technology was in a mess, go look at these 15 boxes, that that's [00:50:31] Speaker 04: the context in which we have to look at your client's claim. [00:50:36] Speaker 06: Not your client, your friend. [00:50:39] Speaker 04: Well, your friend has amicus on behalf of Mrs. Saunders, the plaintiff. [00:50:46] Speaker 02: Correct. [00:50:47] Speaker 02: And that is the context in which she was hired specifically to create those financial reports. [00:50:51] Speaker 02: However, it's our argument that what she discovered and what she reported and the results of that report were much broader than anything that Ms. [00:50:59] Speaker 02: Holt expected to find, that Congress expected to find, that even Ms. [00:51:03] Speaker 02: Saunders expected to find. [00:51:04] Speaker 04: This was serious discrepancies in the reporting and it's the type of activity that we... And do you reject the notion that the context in which this occurred is relevant here? [00:51:15] Speaker 02: No, Your Honor, I think the context is quite relevant. [00:51:17] Speaker 04: I think that the context is something that... Congress has found that the district's books are in a mess, that they're inadequately documented, that you can't tell whether they're surpluses or deficits. [00:51:32] Speaker 04: Fix it. [00:51:36] Speaker 04: That's the context. [00:51:38] Speaker 02: Yeah, sure. [00:51:39] Speaker 02: And that context supports Ms. [00:51:42] Speaker 02: Saunders' theory. [00:51:42] Speaker 04: And she confirms what Congress has already found. [00:51:47] Speaker 02: Congress did not know the extent of... Oh, yes it did. [00:51:50] Speaker 04: It had long hearings. [00:51:52] Speaker 04: Anyway, okay. [00:51:54] Speaker 04: So your point is there really is no line that if she finds fraud, that's it? [00:52:01] Speaker 02: If she finds fraud and she reports it outside of her chain of command to put her employer on notice, [00:52:06] Speaker 04: So it's the chain of command is the key here, even though these are the very people that led to her original assignment? [00:52:16] Speaker 02: Chain of command is definitely part of the analysis under the Martin Baker aircraft case. [00:52:21] Speaker 02: But she was also reporting on activities that reasonably could lead to an action of the False Claims Act. [00:52:26] Speaker 02: And that's the type of activity that this court seeks to protect people from disclosing. [00:52:32] Speaker 06: All right, are there further questions from the bench? [00:52:36] Speaker 06: Do you want to one second wrap up here? [00:52:38] Speaker 02: Yes, sir. [00:52:39] Speaker 02: We just submit that there are numerous issues that Ms. [00:52:41] Speaker 02: Saunders should be entitled to have a jury resolve and summary judgment was inappropriate. [00:52:45] Speaker 02: Thank you for your time. [00:52:46] Speaker 06: Thank you. [00:52:48] Speaker 06: Mr. Parks and actually Mr. Burch and you were appointed as amicus by the court. [00:52:57] Speaker 06: Mr. Park and this is Ms. [00:52:59] Speaker 06: Hicks. [00:53:00] Speaker 06: You were all appointed derivatively and the court is grateful for your assistance in this matter. [00:53:06] Speaker 06: Thank you. [00:53:06] Speaker 06: We'll take the case under submission. [00:53:12] Speaker 06: We're going to take a brief break while the attorneys change positions here.