[00:00:03] Speaker 00: Case number 14-1255 at L. Tamoko Kulibali, a petitioner versus Merit Systems Protection Board. [00:00:12] Speaker 00: Mr. Nathan for the amicus carai, Mr. Morrow for the respondent. [00:00:37] Speaker 05: Morning, Your Honors. [00:00:38] Speaker 05: Aaron Nathan for the Court-appointed amicus. [00:00:42] Speaker 05: Congress enacted Section 2302B8 to protect any disclosure of any violation of any law. [00:00:49] Speaker 05: This case really comes down to whether any really means any, or whether instead there's an exception in the statute for disclosures that happen to be contained in a filing protected independently by Section 2302B9A2. [00:01:04] Speaker 05: We think that the statute means what it says. [00:01:06] Speaker 05: And even the government concedes that our reading of Section 2302B8 wouldn't render Section 2302B982 superfluous. [00:01:15] Speaker 05: That's a section that they did. [00:01:17] Speaker 04: What do you do about the board's argument that Congress has known about the board's rule on this and the Federal Circuit's agreement with it, and it's had two opportunities to change it, hasn't done it? [00:01:33] Speaker 05: So our position is that Congress enacted the statute we're describing in 1989. [00:01:39] Speaker 05: That's the relevant moment when it changed the statute from reading a disclosure to reading any disclosure, and that the Federal Circuit's cases have been wrong all along. [00:01:49] Speaker 04: In 1994, Congress considered an amendment to overrule that and didn't pass it. [00:01:54] Speaker 05: Right. [00:01:55] Speaker 05: And I think our answer is that's because it didn't need to. [00:01:59] Speaker 05: We take the government's point that- How long would it have considered it? [00:02:02] Speaker 05: Well, there are simpler ways to inform. [00:02:07] Speaker 04: And then? [00:02:09] Speaker 04: In 2012, it made several more changes to overrule board decisions that were limiting whistleblower cases, but it didn't do this one. [00:02:22] Speaker 05: Well, one thing it did do in 2012 is it enacted a definition of the word disclosure, which now sits at 2302A2D. [00:02:30] Speaker 05: And that defines the word disclosure to include a formal or informal communication. [00:02:36] Speaker 05: and also contains an exemption for disclosures that relate to policy decisions that are lawful exercises of discretionary authority, which fills in, I think, nicely one of the gaps between B9A2 and B8 that resolves the question of whether B8 [00:02:56] Speaker 05: Our reading of BA would render B982 superfluous. [00:03:01] Speaker 05: In fact, Congress does know how to enact a narrower whistleblower provision. [00:03:05] Speaker 05: It's done so several times. [00:03:07] Speaker 05: I have a few examples here. [00:03:10] Speaker 05: In Sarbanes-Oxley, the whistleblower provision is confined to disclosures of particular statutes. [00:03:14] Speaker 05: In fact, particular provisions of particular statutes. [00:03:17] Speaker 05: And the disclosures have to be made to particular individuals, in that case a member of Congress or a member of the law enforcement community in order to qualify for protection. [00:03:26] Speaker 05: Other times the disclosures have to be made to an official at a particular bureau or have to be disclosures of violations of laws that are administered by, for example, the Consumer Financial Protection Bureau in order to gain the protection of the whistleblower provisions in Dodd-Frank. [00:03:46] Speaker 05: the aviation investment reform act has a whistleblower provision that uh... that protects disclosures only of violations of federal law uh... but those those have to be made too [00:04:00] Speaker 05: the employer or the federal government in order to qualify for protection. [00:04:03] Speaker 05: And in this case, Congress instead enacted, I would think, the broadest imaginable whistleblower protection, except subject to the limitations that are in the statute, that the disclosing employee have a reasonable belief that the disclosure evidence is a violation of any law, and also that the disclosure fit the definition in 2302A2D. [00:04:26] Speaker 01: The board says in its brief [00:04:28] Speaker 01: on appellate jurisdiction that the statute could be read literally to borrow the court's review of a case involving the board's disposition of alleged whistleblower claims that could also be characterized as other types of prohibited personnel actions such as EEO retaliation. [00:04:48] Speaker 01: The statute read literally could borrow review of this case. [00:04:53] Speaker 01: I know both sides agree on appellate jurisdiction, but it does seem [00:04:58] Speaker 01: that red literally is correct red literally I'm not sure we have a public jurisdiction. [00:05:03] Speaker 05: I so I I I respectfully disagree about the literal we have a different position about the literal understand that's right and I think that this is one case where the admittedly. [00:05:13] Speaker 05: circling look at us that language that seventy seven of three p one pieces helpful uh... you have jurisdiction wherever the petitioner raises no challenge to a board disposition other than a challenge to a disposition of whistleblower related allegations in this case coming up on the board's twelve twenty one jurisdiction we know exactly what kinds of dispositions the board made below because twelve twenty one that the statute and their bags at twelve oh nine [00:05:43] Speaker 05: C2 restrict their jurisdiction to whistleblower claims only. [00:05:49] Speaker 05: The only kinds of dispositions being made below were whistleblower related. [00:05:53] Speaker 03: Is your position that we would have jurisdiction whichever way the MSPB answered the question? [00:06:03] Speaker 05: Yes. [00:06:06] Speaker 03: We have jurisdiction over the subject. [00:06:08] Speaker 05: You have the jurisdiction over, yes, one way to think about it is of the subject matter of whistleblower claims. [00:06:13] Speaker 05: And this might be a different case in a direct adverse action appeal, where the petitioner could have been bringing any number of claims before the board. [00:06:22] Speaker 05: But in this case, I think everybody does agree that the only claims that the board had power to dispose of were whistleblower claims. [00:06:29] Speaker 05: I should highlight one other thing, that the word jurisdiction, as it applies to what the board is up to below, could be a little bit misleading. [00:06:36] Speaker 05: They also use the word frivolous to describe one of their standards. [00:06:40] Speaker 05: But the standard that the board is using below is most closely analogous to the 12b6 merit standard. [00:06:46] Speaker 05: The standard for, for example, what constitutes a non-frivolous allegation is, if true, would the allegation establish the matter at issue? [00:06:54] Speaker 05: That's 12b6. [00:06:58] Speaker 05: So that is to distinguish this question of board jurisdiction. [00:07:02] Speaker 01: But if the board says something is not within one of these categories that were authorized to [00:07:10] Speaker 01: decide and then it comes up here, I guess the merits, correct me if I'm wrong, the merits in our jurisdictional question merge a bit, don't they? [00:07:21] Speaker 05: Well, not necessarily. [00:07:23] Speaker 05: You could agree with the board. [00:07:26] Speaker 05: We obviously are asking you to disagree with the board. [00:07:28] Speaker 05: But you could agree with the board that the allegations don't state a whistleblower claim. [00:07:35] Speaker 05: and still retain, that wouldn't defeat your jurisdiction. [00:07:38] Speaker 05: That's as true for you in this case as it is in sort of the Bellevue Hood scenario in federal question jurisdiction. [00:07:44] Speaker 01: But what if the board concludes that one of the claims is not the kind of claim that falls within one of these subsections? [00:07:50] Speaker 05: As I understand it, that's a merits judgment, the kind that would be made at 12b6 in the district court. [00:07:56] Speaker 05: That's exactly the kind of question that you were given jurisdiction to answer, whether [00:08:01] Speaker 05: I don't have a particular allegation states a claim for relief under the whistleblower provisions or under other provisions or no provisions of federal law. [00:08:11] Speaker 05: You don't have jurisdiction only to agree or confirm the board's judgment. [00:08:16] Speaker 05: that someone has stated a claim for relief under the whistleblowing provisions. [00:08:20] Speaker 01: So someone states a claim, says it's a whistleblower claim, the board says, now, for whatever reason, we have jurisdiction. [00:08:28] Speaker 05: Well, not for what, the board has to say no for a particular reason. [00:08:32] Speaker 05: The board could say no, you know, suppose somebody brings a patent claim to the MSPB. [00:08:37] Speaker 05: In that case, the board might look at the facts and say, you've failed to establish [00:08:44] Speaker 05: that we have, you know, whistleblower jurisdiction. [00:08:48] Speaker 05: And in that case, they might say, because your allegations are factually insufficient. [00:08:52] Speaker 05: Now, this is an extreme... What if that comes up, though? [00:08:54] Speaker 05: If the person disagrees and it comes to us, what do we do? [00:08:57] Speaker 05: Again, it depends how the board disposes of the claim, because you could imagine the board saying that, as a matter of law, [00:09:02] Speaker 05: These facts that you've alleged don't make out a whistleblower claim. [00:09:05] Speaker 05: That's a conclusion. [00:09:06] Speaker 05: I mean, you might describe that as a conclusion of patent law. [00:09:08] Speaker 05: It's also a conclusion of whistleblower law because it delineates the boundary between what is and what isn't within BA. [00:09:15] Speaker 05: I think in that hypothetical, I would agree. [00:09:18] Speaker 05: that the board was correct. [00:09:19] Speaker 05: That's outside of VA. [00:09:21] Speaker 01: But in this case, we have something... We still have jurisdiction to review an appeal or petition that said, no, the board was wrong on that. [00:09:29] Speaker 05: That's right. [00:09:30] Speaker 05: And I'm confining my answer. [00:09:32] Speaker 05: We would have jurisdiction. [00:09:33] Speaker 05: You would, because that's a disposition of no claim other than a whistleblower claim. [00:09:38] Speaker 01: Right. [00:09:38] Speaker 01: I think that's... Your position is consistent, which is a good thing. [00:09:44] Speaker 05: I'm sorry, I'm not defending the wisdom of Congress's decision to assign jurisdiction anywhere, but that's what it did. [00:09:53] Speaker 05: I didn't understand you to be doing that. [00:09:55] Speaker 04: So I just want to ask you about the other case, the one against the board itself. [00:10:01] Speaker 04: The Coast Guard judge here dismissed it for failure to allege a personnel action, and you briefed that issue quite thoroughly. [00:10:12] Speaker 04: But there was a second independent reason, and that is that his allegation of retaliation was based on pure unsupported speculation that it was frivolous. [00:10:25] Speaker 04: And you didn't challenge that in your brief. [00:10:29] Speaker 04: As amicus, you aren't challenging that. [00:10:34] Speaker 05: That's about right. [00:10:35] Speaker 05: I think it does come down to how you read what the board judge was doing or the ALJ amicus was doing. [00:10:44] Speaker 04: Because if you aren't, then we don't really have to decide the personnel question, do we, to affirm. [00:10:48] Speaker 04: We can affirm on the independent ground that isn't challenged here, correct? [00:10:53] Speaker 05: That's an independent, that would be an independent ground for affirmance. [00:10:56] Speaker 05: I think at J.A. [00:10:57] Speaker 05: 58 and 59, it's a little unclear. [00:10:59] Speaker 05: I think the board's analysis of the facts could have been better explained. [00:11:05] Speaker 04: Right, but it's not, you don't raise it in your brief and I didn't. [00:11:09] Speaker 04: You're right that we didn't raise it in our brief. [00:11:11] Speaker 04: Yes. [00:11:11] Speaker 04: Did you have any other questions? [00:11:12] Speaker 04: No. [00:11:13] Speaker 04: Okay, Mr. Jason, thank you. [00:11:23] Speaker 02: First, I'd like to say we agree on the jurisdictional analysis of the petitioner. [00:11:34] Speaker 02: With respect to our jurisdiction? [00:11:36] Speaker 02: With respect to your jurisdiction, yes. [00:11:40] Speaker 02: We were saying that one could use read the word disposition to mean something more than simply disposing of the underlying matter that we found the whistle blowing to be. [00:11:56] Speaker 02: But we do agree generally that the case should be looked at in terms of what the person alleged. [00:12:03] Speaker 02: If they allege they are whistleblowing and we decide whether it's whistleblowing and nothing else, then of course this court would have jurisdiction, even though our decision was it was outside our jurisdiction because it was another kind of claim. [00:12:21] Speaker 02: On the point of the board does actually maintain that, [00:12:27] Speaker 02: the interpretation of the statutes that the petitioner, Micas, is presenting would render the section 2302b9 virtually redundant. [00:12:46] Speaker 02: It would obliterate the division. [00:12:48] Speaker 02: Yes. [00:12:49] Speaker 03: The division between whistleblowing and EEO claims. [00:12:52] Speaker 02: It would make that section completely unnecessary. [00:12:57] Speaker 02: We said virtually because there are always, the basic reason is that any kind of grievance, appeal, or complaint is going to be alleging some kind of violation of law, rule, regulation, or abuse of authority. [00:13:16] Speaker 02: It's conceivable, as we say, virtually because there could be cases where they were so confused that they weren't alleging anything. [00:13:23] Speaker 02: But in general, that's the rule. [00:13:26] Speaker 02: And with respect to the any means any, this was something that focused on over the years disagreements with Congress, with the board, and the court's determination of what a protected disclosure was in terms of its content and who it was made to and so forth. [00:13:47] Speaker 02: And that was largely dealt with in the WPEA, where they specifically overruled various ones of those types of rulings. [00:13:58] Speaker 02: The matter of the connection of B9 and B8 and how they should be interpreted is a different kind of issue, and the rationale [00:14:10] Speaker 02: is a fairly strong one, we think. [00:14:14] Speaker 02: Initially when the whistleblower appeal was created, it was going to apply to all prohibited personnel practices. [00:14:26] Speaker 02: And there was much opposition to this within the government. [00:14:32] Speaker 02: And the report on the revision, which limited only to whistleblowing, referred to this. [00:14:43] Speaker 02: And it was obviously a response to it that they deliberately chose to limit [00:14:48] Speaker 02: the scope of it to 2302B8 and not to 230B9, the other kind of provision that, along with B1, that include retaliation claims. [00:15:02] Speaker 02: then there were opportunities later, which there was one time in 1994 when there was an attempt to broaden it, and that was rejected. [00:15:12] Speaker 02: And in 2012, in the WPEA, they confirmed it, in our view, because they provided under B9 for a channel where there was a complaint on [00:15:32] Speaker 02: whistle-blowing per se, that is now within the board's jurisdiction, but other kinds of complaints are not. [00:15:41] Speaker 02: On the issue of the [00:15:44] Speaker 02: the judges and whether or not they can take personnel actions, we would suggest that it's fairly clear that adjudication is not personnel management. [00:15:58] Speaker 02: The judges don't take personnel actions, recommend them, or approve them. [00:16:03] Speaker 02: They review them and determine whether or not they're lawful. [00:16:07] Speaker 04: Is there a reason you didn't argue we could simply affirm on the alternative grounds? [00:16:11] Speaker 04: On in that case? [00:16:12] Speaker 04: Yeah. [00:16:14] Speaker 04: I mean, the Coast Guard judge found it frivolous. [00:16:19] Speaker 02: Yeah, he also found it frivolous. [00:16:21] Speaker 04: Yeah, that's my question. [00:16:22] Speaker 04: Why didn't you argue we could affirm it on that ground without deciding this legal question? [00:16:28] Speaker 02: My thought there was more basic question, really. [00:16:30] Speaker 03: You can always dispose of a case as frivolous without reaching jurisdictional questions. [00:16:37] Speaker 02: That's true, but this seems like a very basic question. [00:16:42] Speaker 02: There were no cases. [00:16:43] Speaker 03: Yeah, but if you have an underlying frivolous claim, we have recently held, but we've held a number of times, that you can dispose of the case as frivolous without reaching the jurisdictional question. [00:16:57] Speaker 03: Even our jurisdiction. [00:16:58] Speaker 02: Yes. [00:17:01] Speaker 04: You want us to decide this question, right? [00:17:03] Speaker 02: We wanted you to decide the question, really. [00:17:06] Speaker 02: Because it's a basic one. [00:17:10] Speaker 04: that our judges... A judgment from a Coast Guard judge doesn't give you enough precedential value on this, right? [00:17:17] Speaker 02: Our judges are performing a comparable function to judicial branch judges. [00:17:22] Speaker 02: Of course, they're not the same, but they do... They're set up where they, you know, provide over-adversary hearings. [00:17:32] Speaker 02: They decide the case on the basis of the law and the facts. [00:17:37] Speaker 02: They're subject to administrative and judicial review. [00:17:42] Speaker 02: In our case, the judges work for a neutral agency to make them impartial and not subject to the pressure of parties on either side. [00:17:52] Speaker 02: But it's literally true, reading the statute, that they do direct agencies to take personnel actions on occasion if it's a compliance case or if they have mitigated a penalty to a different one. [00:18:06] Speaker 02: But the relationship between the judge and the litigant and the management and the employees in an agency are obviously not comparable. [00:18:17] Speaker 02: The judges would have to be recusing themselves if they had the same kinds of relationships with the litigants that the supervisors and their subordinates normally do. [00:18:31] Speaker 01: On the appellate jurisdiction, the all-circuit review provision runs out soon. [00:18:36] Speaker 02: I believe it's extended or a proposal to extend it. [00:18:41] Speaker 01: Well, the House, as I understand, the House has passed an extension, but it's in the Senate, and I don't know what's going to happen. [00:18:47] Speaker 03: We have 47 days. [00:18:49] Speaker 03: We'll see. [00:18:51] Speaker 03: But who's counting? [00:18:53] Speaker 01: All right, you don't have anything further to add to what's just that it's pending in the Senate. [00:18:59] Speaker 02: Yeah, I can't tell you any more about that. [00:19:02] Speaker 02: Do you have any more questions about our position in the case? [00:19:06] Speaker 04: No more questions. [00:19:07] Speaker 04: Thank you. [00:19:08] Speaker 02: Thank you very much. [00:19:08] Speaker 04: Did Mr. Nathan have any time left? [00:19:12] Speaker 04: OK, you take one minute. [00:19:18] Speaker 05: Judge Silverman, not only would our reading of B-8 not obliterate the distinction between B-8 and B-92, it's the only way to make sense of the statute as it was written, and it's also the only way to make sense. [00:19:30] Speaker 03: Why wouldn't that eliminate the demarcation line that Congress at one point tried? [00:19:39] Speaker 03: maybe still tries to make between whistleblowing and EEO. [00:19:42] Speaker 05: Well, it's not, to be clear, not a line between whistleblowing disclosures and EEO-related disclosures. [00:19:48] Speaker 05: BA protects disclosures, any disclosure, regardless of the subject matter. [00:19:52] Speaker 05: B9 protects the right to file. [00:19:54] Speaker 05: any sort of appeal, grievance, or complaint, regardless of its content. [00:19:58] Speaker 05: That's really the fundamental distinction, which is another reason why you can imagine, and I think the government has agreed with us, that these are two independent provisions with independent purposes. [00:20:08] Speaker 05: They also have independent proof requirements. [00:20:11] Speaker 03: Some people might experience a series of events that could give rise... So is that why you think the government is wrong in saying that your position would obliterate the difference between eight and nine? [00:20:22] Speaker 05: Yes, there are examples of filings that would be protected by B-9, but that wouldn't contain disclosures that would gain the protection of B-8. [00:20:32] Speaker 05: To say nothing of the fact that in some cases where they could, if the employee could prove the B-8 violation, the employee for whatever reason can't, so can only rely on the B-9 violation. [00:20:43] Speaker 05: These provisions also are part of a remedial structure that distinguishes between two classes of employees, which we've referred to at footnote 12 of our opening brief. [00:20:54] Speaker 05: Only the narrower class of employees has the ability to bring a B982 claim. [00:20:59] Speaker 05: as a challenge in a direct action, a direct appeal of an adverse action. [00:21:04] Speaker 05: Every employee that meets the general definition of employee in Section 2105 of Title V can bring the B-8 claims through the OSC and IRA process here. [00:21:14] Speaker 05: And the B-9A-1 distinction that Congress enacted in 2012, that's not really relevant to this case. [00:21:22] Speaker 05: It covers second-order retaliation, in other words, retaliation for seeking relief for Whistleboro retaliation. [00:21:28] Speaker 05: which is, again, part of Congress's effort to channel all whistleblower law into the all-circuit review provision and expand it beyond the jurisdiction, the exclusive jurisdiction of the Federal Circuit, which has had these precedents in place for decades now. [00:21:44] Speaker 05: As for the Federal Circuit precedents, the last thing I'll say about that is that Spruill, the case that's on point here, and then the later case, Sarau, the error in Spruill, one, there are two really, one is, [00:21:58] Speaker 05: Sproul says squarely, if we read B-8 this expansively, it'll render B-982 superfluous, what would have then been B-982 superfluous. [00:22:07] Speaker 05: That's wrong for the reasons that I've just explained. [00:22:10] Speaker 05: The second reason is that the way we should tell whether something is in fact covered by B-8 is by asking ourselves whether the disclosure relates to the kind of waste, fraud, government mismanagement. [00:22:20] Speaker 05: that was once the purpose of the whistleblower protections in the whistleblower reform act, but hasn't been since 1989. [00:22:27] Speaker 05: That one was wrong when it was decided. [00:22:29] Speaker 05: In Sarau, the federal circuit went even farther. [00:22:32] Speaker 05: They said that not only are the allegations of discrimination contained in an EEO complaint not protected disclosures, [00:22:39] Speaker 05: Any other disclosure of any other violation of law isn't protected by B-8 as long as it's contained in an EEO complaint, which is exactly the kind of formal communication that the definition of disclosure means that B-8 covers. [00:22:56] Speaker 05: If the court has no further questions, thank you. [00:22:59] Speaker 04: Thank you. [00:22:59] Speaker 04: The case is submitted.