[00:00:03] Speaker 04: Case number 18-5361, Lixa Iglesias Appellant versus United States Agency for International Development. [00:00:12] Speaker 04: Mr. Crowley for the Appellant, Mr. Walker for the Appellate. [00:00:25] Speaker 06: Council for Appellant. [00:00:36] Speaker 06: Please proceed. [00:00:40] Speaker 04: Judge Rogers, we seem to have lost Mr. Crowley just now. [00:00:44] Speaker 04: We are trying to get him back on the line. [00:00:49] Speaker 06: Thank you. [00:01:09] Speaker 04: Judge Rogers, Mr. Crowley has connected again. [00:01:13] Speaker 06: All right. [00:01:13] Speaker 06: Thank you. [00:01:17] Speaker 01: Good morning. [00:01:17] Speaker 01: Sorry about that. [00:01:21] Speaker 06: It's all right. [00:01:22] Speaker 06: Please proceed. [00:01:24] Speaker 01: Good morning, Your Honors. [00:01:25] Speaker 01: May it please the court? [00:01:26] Speaker 01: My name is Dan Crowley, and I represent the appellant, Lixa Iglesias. [00:01:30] Speaker 01: In this appeal, we raised two issues with respect to Mrs. Iglesias's whistleblower retaliation defense. [00:01:36] Speaker 01: The first is that [00:01:38] Speaker 01: important information was wrongfully denied from us, the identity of the informant. [00:01:44] Speaker 01: And we asked the court to do what neither the OIG, the board, or the district court did, and that is to read the statutes and apply it to the facts of this case. [00:01:54] Speaker 05: Would you repeat that last sentence? [00:01:58] Speaker 05: I lost your voice. [00:02:01] Speaker 01: I'm sorry. [00:02:01] Speaker 01: I asked the court to read the statute and apply it to the facts of this case, which is something that neither the board, the district court, or even DOIG has really done in this case. [00:02:12] Speaker 01: But I'd like to begin with our second argument, if I may, because although we were hamstrung by the 7b ruling by the board, we believe that we nevertheless made out a case for whistleblower retaliation, but the court applied the wrong standard. [00:02:26] Speaker 00: Council, this is Judge Griffith. [00:02:28] Speaker 00: I'd rather you walk back to 7B for a minute. [00:02:32] Speaker 00: Can you walk me through your textual argument that an employee of the OIG is not protected under 7B of the Act? [00:02:44] Speaker 01: Yes, absolutely, Your Honor. [00:02:45] Speaker 00: Thank you. [00:02:46] Speaker 01: The IG Act covers employees of the establishment. [00:02:50] Speaker 01: And there is no evidence in the record that this informant worked for USAID. [00:02:55] Speaker 01: There was an in-camera submission where the agency was asked to provide certain information about the informant. [00:03:02] Speaker 01: And the informant, the OIG said they know who the informant is, but they didn't say whether it was an employee. [00:03:08] Speaker 00: Did you make that argument before the board? [00:03:13] Speaker 00: That the informant might not have been an employee of the OIG? [00:03:18] Speaker 00: Did you make that argument before the board? [00:03:20] Speaker 00: And if so, where does that argument appear in the Joint Appendix? [00:03:24] Speaker 00: Because I couldn't find it. [00:03:26] Speaker 01: We did not make that specific argument in support of this claim before the board. [00:03:30] Speaker 00: OK, well, then that's over then, right? [00:03:34] Speaker 06: Well, let's clear what argument you did make and what the implication of that argument was in terms of your ability to raise, to elaborate on that argument. [00:03:50] Speaker 06: That's what I want to be clear. [00:03:53] Speaker 01: Well, Your Honor, we did argue from the very beginning that there was no evidence that this employee was covered by the IG Act. [00:03:58] Speaker 01: And that's our claim. [00:04:00] Speaker 01: And for us to now present an additional argument in support of that claim that the employee, there was no evidence that the employee worked with the IG Act. [00:04:08] Speaker 00: But as I understand it, help me, correct me if I'm wrong. [00:04:12] Speaker 00: I thought your argument was a textual argument based on your interpretation of the act and that you were arguing [00:04:22] Speaker 00: that the Act was not limited to OIG. [00:04:31] Speaker 00: Go back to 7B. [00:04:33] Speaker 00: Let's not get into whether this person falls under 7B or not. [00:04:37] Speaker 00: Just help me understand what you're saying about 7B and who it reaches, who it protects. [00:04:44] Speaker 01: Yes, Your Honor. [00:04:45] Speaker 01: So the OIG, Section 7B of the OIG Act, [00:04:51] Speaker 01: allows the IG to receive complaints from employees of the establishment and then has to give some level of confidentiality to people who bring those complaints. [00:05:01] Speaker 01: Now the entire act uses the words establishment and office to distinguish between the agency and the independent office of inspector general. [00:05:09] Speaker 01: It uses those words to distinguish between the two of them and to delineate the responsibilities of one versus the other. [00:05:16] Speaker 01: For example, Section 4 of the Act requires the IG to audit the establishment. [00:05:22] Speaker 01: Section 3 prohibits the establishment from interfering with the IG's audit. [00:05:27] Speaker 01: And Section 6 requires the establishment to comply with requests for information from the IG. [00:05:32] Speaker 01: None of this makes sense if establishment is meant to include OIG. [00:05:37] Speaker 01: And to take it a step further, if you look at Section 11 of the IG Act, it creates a third entity. [00:05:42] Speaker 01: It's the Council of Inspectors General on Integrity and Efficiency. [00:05:47] Speaker 01: And there's a committee that's created by the statute within that council that exists to receive complaints about the inspector general. [00:05:57] Speaker 01: So it shows that there's actually an alternative venue for OIG employees to report concerns about OIG management, and that's under Section 11. [00:06:05] Speaker 01: But really, I think the clearest example is Section 7 itself, because the agency's only argument as to why this [00:06:13] Speaker 01: confidentiality provision applies to OIG employees, that it's necessary to protect them from retaliation. [00:06:20] Speaker 01: But the question that we've asked from the beginning, the agency never answers it, nor does the board or the district. [00:06:29] Speaker 01: If the agency doesn't claim that the applicant is an OIG employee, then the OIG has personnel authority over the employee. [00:06:36] Speaker 01: And the OIG admits that it knows who the employee is. [00:06:40] Speaker 01: would not offer, it cannot possibly offer any protection to an OIG employee against the OIG. [00:06:47] Speaker 01: So it doesn't make any sense to apply to the OIG. [00:06:52] Speaker 01: And additionally, Section 7B is not an absolute promise of confidentiality. [00:06:58] Speaker 00: Let me back up. [00:07:00] Speaker 00: Section 12F defines the OIG by saying the term office [00:07:09] Speaker 00: means the Inspector General of an establishment. [00:07:12] Speaker 00: I'm sorry, 12-4. [00:07:12] Speaker 00: 12-4. [00:07:16] Speaker 01: Yes, it's an independent office within the establishment. [00:07:18] Speaker 01: I mean, the Office of Inspector General is part of the agency, but the Act is using the words establishment and office to differentiate between them. [00:07:30] Speaker 01: I mean, it wouldn't make any sense to have, to require the OIG as an establishment [00:07:36] Speaker 01: to provide records to itself or to audit itself. [00:07:40] Speaker 01: I mean, it just doesn't make any sense when applied that way. [00:07:43] Speaker 01: And this is an act that created this office within the agency and then defined the responsibilities of the agency to the OIG and vice versa. [00:07:55] Speaker 01: And in addition to that, Section 7B is not an absolute promise of confidentiality. [00:08:03] Speaker 01: The OIG has discretion to disclose [00:08:06] Speaker 01: the informant's identity when doing so is unavoidable. [00:08:09] Speaker 01: And this case fits within that discretion, that exception. [00:08:14] Speaker 01: Devin B allows the Inspector General, where necessary to fully pursue the object of an investigation, to identify the source. [00:08:23] Speaker 01: And here, we're talking about a separation action that is the culmination and the purpose of that investigation. [00:08:28] Speaker 01: It's the final step of that. [00:08:30] Speaker 01: So the OIG would have to disclose it, and it's necessary because Mrs. Iglesias has raised [00:08:36] Speaker 01: her whistleblower to prove that her investigation was influenced by someone else. [00:08:46] Speaker 01: And case law, including Russell at the MSPB in particular, hold that the person in the college's investigation, then that complaint is tainted. [00:08:57] Speaker 00: And if that complaint... I'm having some difficulty hearing. [00:09:00] Speaker 00: There's some background noise there, and I'm no technology expert. [00:09:05] Speaker 00: Everyone ought to have their, unless they're speaking, they ought to have their speakerphone muted so that we don't hear toilet flushes or background noise. [00:09:15] Speaker 00: Maybe that's, I don't know if any of the other judges are having problems hearing the argument, but I'm hearing a lot of background. [00:09:22] Speaker 06: I thought the connection with counsel has been weak. [00:09:31] Speaker 00: Maybe that's it. [00:09:32] Speaker 00: Maybe that's it. [00:09:33] Speaker 00: Thank you. [00:09:33] Speaker 00: Thank you, Mr. Crowley. [00:09:40] Speaker 06: Judge Griffith, did you want to follow up? [00:09:43] Speaker 00: No, that's fine. [00:09:43] Speaker 00: Thank you. [00:09:47] Speaker 01: Okay. [00:09:47] Speaker 01: With respect to our whistleblower retaliation defense, we only need to prove retaliation. [00:09:52] Speaker 01: We only need to show that the disclosure was a contributing factor. [00:09:55] Speaker 01: It's really an unusually low standard of proof that reflects the strong public policy in favor of whistleblown. [00:10:02] Speaker 01: You don't have to prove that whistleblown was the only reason or the main reason for the action, just that it was a contributing factor to the decision. [00:10:09] Speaker 01: And proving this, as the Federal Circuit acknowledged Whitmore, rarely involves direct evidence because people don't admit to retaliation. [00:10:17] Speaker 01: So courts came up with these other ways to prove circumstantial evidence of retaliation. [00:10:22] Speaker 01: the knowledge timing test, the retaliation by investigation, the mosaic of suspicious events. [00:10:27] Speaker 01: And here the board's own factual findings actually satisfied every one of those tests. [00:10:32] Speaker 01: But the board refused to apply those legal standards. [00:10:36] Speaker 01: Instead it described all of the circumstantial evidence as speculative because in essence it required that someone who knew of the disclosures admitted that they interfered with the investigation. [00:10:47] Speaker 01: Or that someone who was involved in the investigation admits they know of the disclosures. [00:10:55] Speaker 01: Which in other words means that they required someone to admit to committing a prohibited personnel practice, an illegal act. [00:11:01] Speaker 01: But these three tests in the circumstantial evidence rule exist precisely because that's so unlikely and it's not required under the law. [00:11:11] Speaker 01: And by insisting in anything short of that, by insisting that anything short of that is speculation, the court effectively rejected those legal standards. [00:11:21] Speaker 01: And if the case was viewed under the correct standard, it would be arbitrary and capricious to find that there was no evidence of retaliation. [00:11:28] Speaker 01: But in order to show how the court failed, how the board failed to apply the correct standard, I think it's necessary to highlight a couple of the facts the board found. [00:11:38] Speaker 01: It was clear from the board's decision that it found that McHunin's investigation was suspicious. [00:11:43] Speaker 01: Her explanations were not credible, as found by the board. [00:11:47] Speaker 01: But despite that, the board kept characterizing the evidence, saying it suggested a proper motive. [00:11:52] Speaker 01: It arguably showed a mosaic of suspicious events. [00:11:56] Speaker 01: And then it would conclude that it was all speculation to connect it to the disclosures. [00:12:00] Speaker 01: But the nexus is clear from the involvement of the people in the chain of command. [00:12:06] Speaker 01: Iglesias' supervisor, Christine Byrne, the Inspector General and the Ambassador, they all communicated with McClennan throughout the investigation. [00:12:14] Speaker 01: They all kept tabs on the investigation. [00:12:16] Speaker 01: The board found that to be unusual and suspicious. [00:12:19] Speaker 01: Then before McClennan even interviewed Iglesias, the Inspector General decided to curtail her and bring her back to Washington. [00:12:26] Speaker 01: And Byrne told the Inspector General that the Ambassador was happy with the decision and that she didn't think any more feather smoothing was necessary. [00:12:35] Speaker 01: And all of this interest about trying to get Iglesias out of the country was over what? [00:12:41] Speaker 01: The original allegation here, the informant's complaint was that Iglesias claimed reimbursement for a driver that she didn't use. [00:12:48] Speaker 01: The total amount, according to the informant, was $2,488. [00:12:53] Speaker 01: That's it. [00:12:56] Speaker 01: It's simply not credible that McClennan flew from Washington DC to South Africa, kicked the investigator off the case, [00:13:03] Speaker 01: And when searching through all these unrelated records, keeping the highest officials of the department and the state department appraised of her progress, all because they thought an auditor received $2,000 to pay her driver. [00:13:16] Speaker 01: The nexus is the involvement of these three people. [00:13:19] Speaker 01: For example, the ambassador. [00:13:22] Speaker 01: Iglesias made many attempts, as the board found, to disclose that the ambassador had caused the waste of $120 million in taxpayer money. [00:13:31] Speaker 01: It was a high priority program announced by the Secretary of State herself, and the board found that she tried to include his errors in the audit report, and that she spoke with people inside and outside the organization about it. [00:13:45] Speaker 01: It's not speculation. [00:13:48] Speaker 06: Yeah. [00:13:48] Speaker 06: Council, let me go back, if I may, to where you started. [00:13:57] Speaker 06: You argued to the board. [00:13:59] Speaker 06: and to the district court, that as a matter of statutory interpretation, the IGA did not apply to the informant because the statutory language establishment does not include the office. [00:14:16] Speaker 06: That's right. [00:14:18] Speaker 06: So then, or now, you're arguing there was no evidence that the informant was even an employee, an employee of USAID. [00:14:29] Speaker 06: And that the court may consider this because it is simply another argument that the statute doesn't apply to the informant. [00:14:39] Speaker 06: So the question is, how can this evidentiary or factual question have anything to do with the argument you made below about the meaning of the word establishment? [00:14:55] Speaker 01: Our argument below about the meaning of the word establishment had to do with whether or not this employee qualified for coverage under the statute. [00:15:06] Speaker 01: And as the OIG has suggested throughout the case, stated in its brief, but never acted as evidence that the OIG has claimed that the employee is one of its own. [00:15:19] Speaker 01: And that's the argument that we made below. [00:15:24] Speaker 01: Another argument in support of our claim that the ID Act does not cover this employee is that there's no evidence at all that this employee worked for a U.S. [00:15:37] Speaker 01: state. [00:15:38] Speaker 01: And I think it's important to note that below, when the board decided on this in-camera submission, they did so without any notice to the parties. [00:15:47] Speaker 01: We didn't have any input on whether or not or what questions would be asked. [00:15:51] Speaker 01: We had filed a motion to compel the agency opposed and the board, I guess, decided that the IG Act applied without really explaining why and came up with this attempt to reconcile the differences. [00:16:08] Speaker 01: That's frankly completely inadequate because it doesn't even disclose whether or not the informant knew of Iglesias' disclosure. [00:16:17] Speaker 01: It doesn't even meet that [00:16:19] Speaker 01: the purpose that it was offered for because the board found that Iglesias made disclosures about, within the audit reporting system and also by talking to other people, her supervisors and people inside and outside the agency and at the State Department and people at non-government organizations like the Gates Foundation, the board found that she made all of those disclosures. [00:16:42] Speaker 01: Yet the. [00:16:43] Speaker 01: So one. [00:16:45] Speaker 01: One. [00:16:45] Speaker 01: Yeah. [00:16:47] Speaker 06: Yeah. [00:16:48] Speaker 06: Do my colleagues have any questions? [00:16:54] Speaker 06: All right. [00:16:55] Speaker 06: Let us hear from Mr. Walker for Appellee, and then we'll give you some time on rebuttal. [00:17:06] Speaker 01: Thank you, Your Honor. [00:17:15] Speaker 06: Good morning, Mr. Walker. [00:17:26] Speaker 08: Yes, good morning, Your Honor. [00:17:27] Speaker 08: Thank you. [00:17:28] Speaker 08: My thanks also to the Deputy for making the arrangements this morning. [00:17:32] Speaker 08: On to the stage somewhat for the procedural posture of this case. [00:17:37] Speaker 08: Missingly, through the fraudulent use of reimbursement measures, this appropriated taxpayers money for her own benefit. [00:17:45] Speaker 08: This is a significant trust by a person who was charged with auditing government programs for waste fraud and abuse, ample grounds to terminate her employment from the OIG. [00:17:56] Speaker 08: The Foreign Service Grievance Board so found and Iglesias does not challenge that determination in this bill. [00:18:03] Speaker 08: Why my colleague to make light of the overall value of the amount of money at issue, that discounts [00:18:13] Speaker 08: the gravity and spurious with which the agency must approach an individual who is charged with auditing for self-committing fraud against the organization. [00:18:26] Speaker 08: If I could turn to the argument that my colleagues focused on, which is the interpretation of Section 7B of the Optite Act and whether or not a mandatory confidentiality provision be extended to employees. [00:18:41] Speaker 08: I'm sorry. [00:18:41] Speaker 06: Is it your understanding that the district court never decided that question as to whether seven be applied? [00:18:56] Speaker 08: I believe the district court did decide to be applied, but the district court also did look at it through a somewhat different lens. [00:19:03] Speaker 08: The district court looked at this as a [00:19:06] Speaker 08: of discovery ruling that is committed to the board's discretion. [00:19:10] Speaker 08: And there are some indications direct that that is what the board was doing to JA 1391. [00:19:16] Speaker 06: This was the board's... Well, I'm looking at the district court's memorandum of opinion on page 15. [00:19:24] Speaker 06: And the district court says, although the party briefed the statutory question at length before the board, the board did not answer it. [00:19:37] Speaker 06: All right, and then goes on to describe what the board did. [00:19:42] Speaker 06: And then he says on page 16, the court must treat the board's determination concerning the appropriate extent of discovery with extreme deference. [00:19:56] Speaker 06: And he goes on there. [00:19:58] Speaker 06: Where has he made a legal decision on the applicability of the statute? [00:20:07] Speaker 08: Well, he affirms the board's decision, and we believe that the board did make a determination about the applicability of the IDES Act. [00:20:16] Speaker 08: If you look at the board's decision for a second... My question is, where did the district court? [00:20:23] Speaker 06: He didn't address it, unless I had just missed it. [00:20:27] Speaker 08: It's not direct. [00:20:30] Speaker 08: The district court did affirm the board's determination that the IDES Act does apply. [00:20:36] Speaker 00: Council, if we disagreed with you and thought that the district court erred when it said that the board did not interpret the act, would that make a difference to us on our review in this case? [00:20:54] Speaker 00: Aren't we here reviewing the board de novo? [00:20:57] Speaker 08: That's exactly it, Your Honor. [00:20:58] Speaker 08: The standard review is that the board reviews the board. [00:21:01] Speaker 08: There's not a significant difference [00:21:04] Speaker 08: to the district determination in this court's exercise. [00:21:07] Speaker 08: But this court is doing what the board did. [00:21:10] Speaker 06: I would also note that the district- Could I just be clear? [00:21:13] Speaker 06: Yes, Your Honor. [00:21:14] Speaker 06: At least one district court judge, even though we may not owe any deference to him, read the record and concluded the district court, the board did not answer the question, the statutory question. [00:21:33] Speaker 06: That's what I was focusing on. [00:21:35] Speaker 06: That the board never decided this question. [00:21:39] Speaker 06: And I'm not disagreeing with what you point to the record saying that, well, when you look at what the board did, it had to have decided it. [00:21:49] Speaker 06: But it never decided it in the sense of explaining why it concluded it applied here. [00:21:55] Speaker 06: That's all I was trying to understand. [00:21:59] Speaker 08: Sure, Your Honor. [00:21:59] Speaker 08: I think that, so the initial motion to compel, and in response to the motion to compel, Ford issued a ruling on December 2nd, which is actually 1381, in which it indicated that it would require USAID to dispose certain information about a foreman's camera. [00:22:19] Speaker 08: And it said it was doing based on a wing of the State interest. [00:22:23] Speaker 08: So that tends to indicate that it's a discovery ruling and not a pure application to the IGF. [00:22:29] Speaker 08: Later in the December 29th ruling, after the IGF did that information in camera to the board, the board included [00:22:41] Speaker 08: no further discovery regarding the informant would be necessary on the strictures of the IG Act. [00:22:46] Speaker 08: So in that December 29th ruling, it certainly does indicate that the Board did determine that the IG Act applies, though it did not discuss it as why specifics in the statute, the IG does apply. [00:23:00] Speaker 08: That said, as Judge Griffith indicated, this Court does review [00:23:05] Speaker 08: the decision of the board itself, not necessarily the decision of the district court, this court can take a look at the IG Act and determine whether or not the mandatory confidentiality provision is necessarily in place of the OSB. [00:23:21] Speaker 08: And it clearly does. [00:23:23] Speaker 08: The OIG Act makes perfectly clear that the Office of the Director General is part of the establishment. [00:23:33] Speaker 08: That's clear. [00:23:35] Speaker 08: With the Act, I'll note three provisions in particular. [00:23:39] Speaker 08: One is Section 2, in which it states that it arises off of Inspector General as, quote, independent and effective unit, quote, in each of such establishments. [00:23:50] Speaker 08: So the Office of the Inspector General is in the establishment. [00:23:53] Speaker 08: If you look at Section 3, it states, each Inspector General shall go to and be the general supervisor of the head of the establishment. [00:24:03] Speaker 08: clearly putting the Office of Inspector General within the establishment. [00:24:06] Speaker 08: And if you look at 6E1, it provides that the Office of Inspector General considered a separate agency owned for very specific and enumerated purposes. [00:24:17] Speaker 08: Those large steps to do with employment matters having to do with voluntary separations, retirement, and the senior executive service. [00:24:26] Speaker 08: That would seem to indicate that for all other purposes, including the other employment provisions of Title V, [00:24:31] Speaker 08: the Office of Inspector General is part of establishment. [00:24:36] Speaker 08: My colleague makes a distinction between the statute's use of establishment to refer to U.S. [00:24:42] Speaker 08: ID were it also to refer to the Office of Inspector General. [00:24:46] Speaker 08: That there's clearly a distinction there, but the distinction is distinguishing part of the whole. [00:24:52] Speaker 08: Section 7B, I, mandatory confidentiality to the whole, which clearly is [00:25:01] Speaker 08: By applying it to the whole, it also applies to the part. [00:25:06] Speaker 08: Indeed, it's worth noting that Ms. [00:25:09] Speaker 08: Iglesias makes the USDA be writ large as the respondent before the board, as the respondent before the district. [00:25:17] Speaker 08: Certainly, she can't do it. [00:25:18] Speaker 08: I am somehow with the Office of Inspectoral with some independent and distinct entity. [00:25:25] Speaker 08: I would also like to address all these assertions [00:25:28] Speaker 08: There's no evidence in the record that the informant was an employee of OIG. [00:25:33] Speaker 08: Not only did Missy just fail to make that argument before the administrative stage proceeding, she affirmatively assumed that the individual was an employee of OIG, and the agency confirmed that in responding to her argument. [00:25:50] Speaker 08: So it would be sandbagging the agency's claim in district court proceedings [00:25:56] Speaker 08: that the agency did not evidence to that effect when Ms. [00:26:01] Speaker 08: Iglesias herself assumed that fact before the board, giving the agency no cause to present evidence to that effect. [00:26:15] Speaker 08: We just have no further questions. [00:26:18] Speaker 08: I'm happy to rest on the brief and the arguments made thus far. [00:26:21] Speaker 06: Well, do you wish to respond to... [00:26:24] Speaker 06: The argument about the district, not the district, the board, in terms of the lethal blower. [00:26:36] Speaker 08: Sure. [00:26:36] Speaker 08: This is the charge that the board did not apply a, did not accept proposition that a retaliation lethal blower defense can be proved with circumstantial evidence. [00:26:50] Speaker 08: And that's just really contradicted by the [00:26:55] Speaker 08: The information or the details that my colleague characterizes as circumstantial evidence are factual details and issues about Miss Iglesias was permitted in recovery, that she presented evidence at the hearing, and the board considered all of that evidence in detail in rendering this decision. [00:27:21] Speaker 08: That indicates that the board did indeed get those facts [00:27:24] Speaker 08: as evidence, as relevant evidence. [00:27:27] Speaker 08: The fact that Ms. [00:27:29] Speaker 08: Iglesias presented evidence as part of her faith doesn't compel a determination in her faith. [00:27:36] Speaker 08: The board clearly accepted the proposition that circumstantial evidence applies if Lisa said so, permitted her to do such and present such evidence, but ultimately found that the circumstantial evidence presented was insufficient [00:27:53] Speaker 08: to justify the nexus that Iglesias has approved between effective disclosures and personnel action. [00:28:02] Speaker 08: It's not applying the wrong evidentiary standard. [00:28:04] Speaker 08: That's just a failure of proof overall for Iglesias' part, which is not something that she disputes. [00:28:14] Speaker 06: So, Council, two questions. [00:28:16] Speaker 06: One, the evidence that was submitted to the board [00:28:21] Speaker 06: in terms of who the informant was, the way it's broad, I couldn't tell that it said what you're saying you understand the board to have found. [00:28:43] Speaker 06: In other words, the statements submitted to the board could have been written in a way that made it clear [00:28:52] Speaker 06: whether the informant was an employee of USAID or not, much less an employee of the office. [00:29:05] Speaker 06: Did that evidence ever get to the board? [00:29:09] Speaker 08: The response regarding information about the employee did not specifically say the person is an employee of OFC. [00:29:21] Speaker 08: The agency's OIG's response to Ms. [00:29:24] Speaker 08: Iglesias' motion to compel, acknowledge the provision in Ms. [00:29:29] Speaker 08: Iglesias' motion to compel the individual as an employee of OIG. [00:29:34] Speaker 08: The individual is an employee of OIG. [00:29:37] Speaker 08: That was assumed at the administrative record at the administration table by Ms. [00:29:40] Speaker 08: Iglesias, acknowledged by the agency, and it has become an issue. [00:29:45] Speaker 06: Well, I would like to see the context in which she assumed it. [00:29:49] Speaker 06: because she was raising that question earlier. [00:29:54] Speaker 06: And I don't know whether they had moved on to a certain point where, as you know, counsel can make an alternative argument that, you know, even if she is, I still win. [00:30:07] Speaker 06: So I just want to be clear what information the board had. [00:30:13] Speaker 06: And the board's opinion didn't help me there, or the board's orders, yeah. [00:30:18] Speaker 08: The board had no decision on this whatsoever from the parties. [00:30:21] Speaker 08: The Minister Glacius did not argue an alternative. [00:30:25] Speaker 08: She argued that the employee was not covered by Section 7B of the ADS because, typically, that person was an employee of OIG. [00:30:36] Speaker 08: It's something she assumed in her argument. [00:30:38] Speaker 06: But that was a statutory interpretation argument, right? [00:30:41] Speaker 08: Correct. [00:30:42] Speaker 08: Correct. [00:30:43] Speaker 08: But certainly, there was a factual assumption underlying statutory interpretation. [00:30:49] Speaker 06: Well, that's your assumption. [00:30:51] Speaker 06: All right, that's what I'm trying to understand. [00:30:52] Speaker 06: That was my question to counsel for appellant, that she was making the statutory argument to the board. [00:31:04] Speaker 06: Now she's making the evidentiary argument. [00:31:09] Speaker 08: Well, the reason I characterize that as sandbagging, Your Honor, is because [00:31:15] Speaker 08: The statutory argument made to the board was premised on the assumption, entirely premised on the assumption that this individual was an employee of OIG. [00:31:24] Speaker 08: There was never any question about that. [00:31:25] Speaker 08: And in responding to that argument, the agency acknowledged that. [00:31:30] Speaker 08: So there was no cause for the agency to have to address an issue as they're not this person was an employee of OIG because it was something that was conceded by plaintiff in making their initial law to the ability of 7B. [00:31:46] Speaker 08: So to concede something like that at the board and then to raise Mr. Court, it's sandbagging the agency. [00:31:55] Speaker 06: Well, I understand your argument, but I want to see where she conceded it. [00:32:01] Speaker 06: That's what I'm trying to understand. [00:32:04] Speaker 08: I'll provide you a citation in the joint appendix if I may have the course indulgence for just a moment. [00:32:10] Speaker 06: Great. [00:32:11] Speaker 06: Thank you. [00:32:21] Speaker 07: It's in motion to compel [00:32:23] Speaker 07: discovery that she filed. [00:32:26] Speaker 07: Sorry, just a moment. [00:32:30] Speaker 06: No, we don't need to take up time here. [00:32:32] Speaker 06: I can look it up. [00:32:34] Speaker 06: You think it's in the motion to compel. [00:32:36] Speaker 08: And I can ask... It is in the motion to compel the two deponents to answer questions about the identity of that individual. [00:32:46] Speaker 08: She makes the argument that the IG Act does not apply to this individual who's in a mobile IG. [00:32:53] Speaker 08: Thank you, Your Honor, very much for your time. [00:32:55] Speaker 08: Could you please affirm the district court? [00:33:07] Speaker 01: Your Honor, I'd like to start by addressing the claim that we were sandbagging the government here. [00:33:15] Speaker 01: This claim of 7b didn't come up at our insistence. [00:33:20] Speaker 01: The claim of 7b came up in the middle of a deposition [00:33:23] Speaker 01: When the government made an objection, it was initially resolved in a telephone call with the presiding member, and then we filed a motion to compel. [00:33:32] Speaker 01: The motions that you see are not the first instance where this issue was raised. [00:33:36] Speaker 01: But in addition to that, it is not our obligation to prove whether or not the informant is covered. [00:33:47] Speaker 01: If the agency wants to make a discovery objection and seek an order prohibiting us from receiving discovery, [00:33:53] Speaker 01: It is on the government's, it is the government's burden to show that the employee is covered in the first instance. [00:33:59] Speaker 01: So I don't think that it is fair at all to characterize what we did as sandbagging, nor is that decision that we have in the motion that we have in the record, the original. [00:34:08] Speaker 01: There isn't a record, I don't believe the original oral ruling is in the record here, besides a memorandum that might reflect it. [00:34:17] Speaker 01: But I think it's described in the pleadings. [00:34:20] Speaker 01: But I'd also like to note that the board, [00:34:22] Speaker 01: did, I believe, expressly find that the IG Act applied. [00:34:29] Speaker 01: And there's two places where it did that. [00:34:31] Speaker 01: In its first order opening discovery, it's page 1389 in the appendix. [00:34:38] Speaker 01: And it's footnote 10. [00:34:40] Speaker 01: And it says that in our analysis, we conclude that the source of the complaint against Mrs. Iglesias could reasonably be assumed to be a whistleblower, and thus also protected under the Whistleblower Protection Act. [00:34:52] Speaker 01: But the key is then it says, in addition to the IGA. [00:34:57] Speaker 01: So I think there it's making very clear that it's already found that the informant was protected by the IGA. [00:35:04] Speaker 01: And then in its supplemental order, in the very last sentence of the order, it starts on page 1403 and goes to 1404. [00:35:11] Speaker 01: They say, we conclude that USAID is not required to disclose the identity of the confidential source to the charged employee [00:35:19] Speaker 01: given his or her refusal to consent to such disclosure, end the strictures of the IGA. [00:35:26] Speaker 01: So it was certainly relying on the IGA. [00:35:34] Speaker 06: All right, so I'm just looking at your brief. [00:35:44] Speaker 06: You're seeking [00:35:48] Speaker 06: fixator of the judgment and remand with directions to the district court to find, as a matter of law, that your client's interest in disclosure outweighs any interest in confidentiality. [00:36:05] Speaker 06: So how do we fit that in, given our standard of review, where we're not deferring in any way to the district court? [00:36:22] Speaker 01: Well, because the review is de novo, this court is free to interpret the IGA and decide whether or not it applies. [00:36:29] Speaker 01: And it can make that decision and then remand to the district court to tell the district court because its decision was wrong when it found that the board did not rely on it, did not rely on the IGA. [00:36:41] Speaker 06: I get that part. [00:36:45] Speaker 06: What I'm interested in here is just understanding [00:36:51] Speaker 06: If we were to hold the Act did not apply, that's one situation. [00:36:56] Speaker 06: If we hold the Act does apply, then you're asking us to make a factual determination. [00:37:09] Speaker 06: Are you not? [00:37:14] Speaker 01: To make the determination if [00:37:17] Speaker 01: the IGA applied to this. [00:37:18] Speaker 01: No, I don't think it's a factual determination because if you find, oh, if you find that it does apply. [00:37:29] Speaker 01: No, I think you can still find as a matter of law that this fits within the exception of the 7B because 7B allows the disclosure in the case of where it's unavoidable. [00:37:44] Speaker 01: And because Mr. Galasius has put it at issue here, disclosure is unavoidable, the conclusion of the investigation and the ultimate point of the investigation. [00:37:55] Speaker 01: But also if you look at, you know, if it's found that this does actually apply and that the exception does not apply and you have a conflict between the statute, I mean, it's clear from the record that we have already that the informant has next to no [00:38:13] Speaker 01: interest in confidentiality, because as the government argues, the only interest in confidentiality, the point of confidentiality, is to protect them from retaliation. [00:38:25] Speaker 01: But if, as they claim, it is no IG employee, it receives no benefit, it receives no protection from retaliation by confidentiality. [00:38:37] Speaker 01: So at the end of the day, whether it applies or not, this employee or this informant, if it is an employee, [00:38:44] Speaker 01: has no interest in confidentiality, and certainly no interest that can outweigh Mrs. Iglesias' rights. [00:38:50] Speaker 01: I mean, she has a property interest in her job as a federal employee that's guaranteed by the due process clause of the Constitution, and she has her right as a whistleblower to prove that the investigation of her was motivated by retaliation. [00:39:04] Speaker 01: Those are significant, strong interests [00:39:08] Speaker 06: What I'm having difficulty understanding is, I mean, you heard the government and you read its brief, and I'm just trying to figure out there's a legal question, and I understand that, but it's the next part of your request that I wasn't that clear about. [00:39:34] Speaker 06: In other words, [00:39:38] Speaker 06: A deciding body could decide that the property interest in a job outweighs the confidentiality interest that this particular informant might have. [00:39:56] Speaker 06: But from an institutional point of view, given why the office was established, it's important that whistleblowers know [00:40:07] Speaker 06: that their identity will not be disclosed. [00:40:15] Speaker 06: I'm just trying to understand. [00:40:16] Speaker 06: I get it that we can interpret a statute. [00:40:20] Speaker 06: I get it that we can look at the two statutes. [00:40:23] Speaker 06: But I was just wondering about weighing the matter without further fact-finding here. [00:40:33] Speaker 06: That's all. [00:40:35] Speaker 06: But you don't have a problem with that. [00:40:37] Speaker 01: no your honor because i think that the facts are all clear that i think it's it's clear that if the purpose of the statute is to provide confidentiality it doesn't do that when applied to know i can put it to this informant it doesn't do that this employee doesn't have any interest in confidentiality they have protection they have whistleblower protection they can't be retaliated against under whistleblower protection act but the whistleblower protection act doesn't provide confidentiality [00:41:08] Speaker 06: Any questions from anyone else or my colleagues? [00:41:15] Speaker 06: Then we will take the case under advisement. [00:41:18] Speaker 01: Thank you, Your Honors.