[00:00:00] Speaker 03: Case number 19-1041. [00:00:03] Speaker 03: Ms. [00:00:04] Speaker 03: McClellan for the petitioners, Ms. [00:00:06] Speaker 03: Kidd Miller for the respondent. [00:00:11] Speaker 01: Good morning. [00:00:11] Speaker 01: So I gather the court clerk has explained to you that although Judge Garland is unable to be on the Zoom this morning, the proceedings are being fully taped. [00:00:27] Speaker 01: All right, Ms. [00:00:28] Speaker 01: McClellan. [00:00:29] Speaker 01: you may proceed. [00:00:31] Speaker 02: Good morning. [00:00:33] Speaker 02: My name is Kathleen McClelland on behalf of the petitioner Robin Markato. [00:00:37] Speaker 02: May it please the court? [00:00:39] Speaker 02: The plain language of the Whistleblower Protection Act controls the result in this case. [00:00:44] Speaker 02: Whistleblowers are often not perfect employees. [00:00:47] Speaker 02: Ms. [00:00:47] Speaker 02: Markato was not a perfect employee. [00:00:50] Speaker 02: But the question before this court is not, did Ms. [00:00:52] Speaker 02: Markato commit misconduct? [00:00:54] Speaker 02: The question before this court, the question required by the plain language of the [00:00:58] Speaker 02: whistleblower protection act is with the agency have taken the same action against his market. [00:01:04] Speaker 02: Oh, had she not been a whistleblower and on that question. [00:01:07] Speaker 02: The answer is no. [00:01:08] Speaker 02: The agency has used the Defense Department inspector general investigation to mask a straightforward and retaliatory chain of events, a high level agency official Catherine Trujillo [00:01:20] Speaker 02: with a motive to retaliate against Ms. [00:01:22] Speaker 02: Marcato, accused Ms. [00:01:23] Speaker 02: Marcato of misconduct, and those accusations resulted in her termination. [00:01:28] Speaker 02: 18 months of investigation and a 900-page report do not change those fundamental facts. [00:01:35] Speaker 02: The administrative judge made two critical errors. [00:01:37] Speaker 02: First, he misapplied the whistleblower protection act's burden-shifting scheme by requiring that Ms. [00:01:43] Speaker 02: Marcato show retaliatory motive when the burden should have been completely on the agency, and second, [00:01:49] Speaker 02: He made findings not supported by the evidentiary record that the agency had clearly and convincingly proved independent causation for its tainted removal action. [00:01:59] Speaker 02: And for these reasons, we ask that the AJ's decision be reversed and corrective action ordered under the whistleblower protection act. [00:02:06] Speaker 01: Ms. [00:02:07] Speaker 01: McClellan, on your first point, you say that the administrative judge erred [00:02:12] Speaker 01: because he put the burden on Ms. [00:02:15] Speaker 01: Mercado, but he described the burden accurately, right? [00:02:21] Speaker 01: He described the burden as the burden on the agency to show the clear and convincing evidence that supported the agency's action. [00:02:31] Speaker 01: And he did require that the agency show that it would have taken the same action [00:02:40] Speaker 01: And what you focus on in your brief is the part of the administrative judge's opinion where he discusses a subsidiary factor in the question about whether the agency would have taken the same action. [00:02:54] Speaker 01: And you argue that the administrative judge erred by looking to Ms. [00:03:01] Speaker 01: Mercado for evidence of the motive, but the statute speaks only in terms of whether [00:03:07] Speaker 01: the agency would have taken the same action. [00:03:09] Speaker 01: And on that, the administrative judge was clear that the burden was and always was on the agency. [00:03:16] Speaker 01: So how is it error that he was looking to Ms. [00:03:20] Speaker 01: Mercado for any further evidence that would persuade him that motive was the reason? [00:03:29] Speaker 02: It's undisputed that Ms. [00:03:31] Speaker 02: Mercado proved her prima facie case and the plain language of the statute requires no further proof from Ms. [00:03:39] Speaker 02: Mercado. [00:03:40] Speaker 02: And while I agree with Your Honor that he was looking for evidence, he ignored substantial evidence of retaliatory motive. [00:03:48] Speaker 02: But I think the legislative history is instructive here because putting any, requiring any additional evidence from Ms. [00:03:54] Speaker 02: Marcato after she made her prima facie case is there's no support for that in the plain language of the statute. [00:04:00] Speaker 02: The burden shifts entirely. [00:04:01] Speaker 02: It's a very, it's different from like a McDonnell Douglas burden shifting framework. [00:04:05] Speaker 02: And Congress actually wrote contributing factor into the prima facie case to overrule case law that had required whistleblowers to demonstrate retaliatory motive. [00:04:15] Speaker 02: Congress thought it was unrealistic [00:04:17] Speaker 02: to have whistleblowers have to come forward with that proof. [00:04:20] Speaker 01: So the idea- Yeah, but how, I'm just trying to understand how your theory works because, correct me if I'm wrong, it seems like what you're saying is that once a whistleblower has prima facie evidence that she is a whistleblower, the, what is it, the time and- Most timing. [00:04:46] Speaker 01: Pardon, knowledge, timing, knowledge and timing. [00:04:49] Speaker 01: Right. [00:04:49] Speaker 01: I'm part of the agency that she's that's her prima facie case and [00:04:57] Speaker 01: What does it look like in your view for the agency to disprove motive? [00:05:02] Speaker 01: Because one way of understanding the car factors is that when the agency says, look, we treat other people this way under similar circumstances, and we would have taken the same action in any event, given the nature of her disciplinary infractions, that that is disproving motive. [00:05:24] Speaker 02: I think that's not necessarily the entirety of the evidence that could be offered to disprove motive. [00:05:30] Speaker 01: No, but in this case, it might be. [00:05:31] Speaker 01: Couldn't it in a case be sufficient as disproof of motive? [00:05:36] Speaker 01: In other words, Carr is giving three factors, not every one of which has to be present, not every one of which has to be shown by the employer, proved or disproved by the employer to clear and convincing evidence. [00:05:48] Speaker 01: But if the bottom line, which is it would have taken the same action, is [00:05:53] Speaker 01: shown by clearing convincing evidence, isn't that under the statute and under Carr enough? [00:06:02] Speaker 02: If that were true, that would be enough. [00:06:04] Speaker 02: But that's very untrue in this case because there was ample evidence of retaliatory motive. [00:06:11] Speaker 02: So for him to place the burden on Mercado to produce this evidence and then not analyze the evidence that existed amplifies how he wrongly shifted the burden because [00:06:24] Speaker 02: The statute doesn't say that she has to produce any evidence of retaliatory motive. [00:06:28] Speaker 02: The agency has to produce evidence. [00:06:30] Speaker 02: And I think that there is evidence of a non-retaliatory motive that could have been produced that was not. [00:06:35] Speaker 02: But I think significantly in this case, there was ample evidence of a motive to retaliate on the behalf of officials involved in accusing her of misconduct. [00:06:44] Speaker 01: And you're talking about more or less sort of a cat's paw theory where even if the people who made the ultimate determination [00:06:54] Speaker 01: were not very tied up in what Mercado describes as the retaliatory course events. [00:07:00] Speaker 01: They were just putting the cherry on top of a whole series of events that was fraught with retaliation in her view and that that's what should have been looked into more in your view or accounted for more in the AJ's decision. [00:07:14] Speaker 02: Well, I think it's far more direct than that because [00:07:18] Speaker 02: There's long standing board precedent that when an investigation is closely linked to a personnel action, the board should look to the beginning of the investigation. [00:07:26] Speaker 02: And the Deputy Inspector General testified that without the Defense Department Inspector General investigation, there would have been no removal. [00:07:33] Speaker 02: The deciding official in this case wasn't even at the agency at the time of the events in question. [00:07:38] Speaker 02: The proposing official wasn't her supervisor at the time of the events in question. [00:07:42] Speaker 02: They didn't witness any of the events in question. [00:07:44] Speaker 02: They relied entirely on this investigation. [00:07:47] Speaker 01: So I'm not entirely sure I follow that. [00:07:51] Speaker 01: When someone has a prima facie case of retaliation based on whistleblowing, the agency is disabled from doing any investigation? [00:08:03] Speaker 02: No, the agency is disabled from doing anything [00:08:07] Speaker 02: to the whistleblower that it would not do absent her whistleblowing. [00:08:10] Speaker 02: And here the agency launched an investigation in part because of her whistleblowing. [00:08:15] Speaker 01: Well, no, they launched an investigation the way they frame it is they launched an investigation into infractions. [00:08:22] Speaker 01: And then they thought, okay, well, we're not really gonna be seen as neutral here because she has claimed retaliation for whistleblowing. [00:08:34] Speaker 01: So instead of doing it in-house, we have to send it to defense OIG. [00:08:42] Speaker 01: And if the alternative is not no investigation, but the alternative is an in-house investigation, it's hard to see how the defense OIG investigation is itself, that we would properly view that as retaliatory. [00:09:00] Speaker 02: Because there's not evidence that they would have launched this investigation into her absent her whistleblowing that the link between whistleblowing and personnel actions is exactly what the whistleblower Protection Act was trying to prevent and the post hoc justification that this was launched based on infractions. [00:09:18] Speaker 02: is not supported by the record because the reason in the letter requesting the investigation, the reason in the report of investigation is that as she self-identified as a whistleblower. [00:09:29] Speaker 01: No, no, no, no. [00:09:29] Speaker 01: I mean, if you look at the letter requesting the investigation, it's here's someone who has disclosed to a target a bunch of information about the investigation. [00:09:40] Speaker 01: Here's someone who when confronted about a recording has lied. [00:09:45] Speaker 01: to the as a matter of fact that the AJ finds lied to her supervisors. [00:09:53] Speaker 01: And those are featured in the referral letter. [00:09:57] Speaker 01: So put aside, let's say the letter said nothing about the whistle blowing. [00:10:03] Speaker 01: Different case. [00:10:07] Speaker 02: Yes, if the agency could show that it would have launched the investigation, [00:10:12] Speaker 02: without the whistleblowing. [00:10:14] Speaker 01: Which AJ found that it would have, that it would have by clear and convincing evidence, given the nature of these infractions. [00:10:23] Speaker 01: Whether referring to her as a self-described whistleblower changes everything, which I understand your theory is that it does, but the countervailing argument [00:10:37] Speaker 01: that the government has made is we should be commended, not criticized for sending it off to the Defense OIJB. [00:10:46] Speaker 02: I think that it would be commendable if the government had actually, if that were the real reason, but I think that was a pretextual reason because of the agency's conduct during the investigation and because of the agency's conduct after the investigation. [00:11:02] Speaker 02: The agency has said whistleblowing has nothing to do with it, but then the agency also sent a letter [00:11:07] Speaker 02: to the Council for Inspectors General for Integrity and Efficiency saying that the entire investigation was based on whistle-blowing reprisal. [00:11:15] Speaker 02: The fact that the agency started this investigation, it made accusations against Ms. [00:11:23] Speaker 02: Marketo. [00:11:24] Speaker 02: It didn't have to start that way. [00:11:25] Speaker 02: They had a draft letter that characterized the entire investigation as against Investigator Giacalone. [00:11:31] Speaker 02: They didn't send that letter. [00:11:32] Speaker 02: They chose to accuse Ms. [00:11:34] Speaker 02: Marketo of misconduct. [00:11:36] Speaker 02: after a long history of a motive to retaliate against her. [00:11:41] Speaker 02: And that motive to retaliate against her was not in U.J.' [00:11:45] Speaker 02: 's opinion. [00:11:46] Speaker 02: So the finding that they proved by clearing convincing evidence is not supported by the record. [00:11:54] Speaker 00: And finally- In trying to decide what the agency would have done, [00:12:01] Speaker 00: but for the retaliatory motive, isn't it pretty important how serious the misconduct is? [00:12:09] Speaker 02: That is a factor, but simply proving that the penalty of removal was reasonable for the misconduct would not be enough. [00:12:19] Speaker 00: But if we thought, if the IJ could reasonably think that when an official [00:12:27] Speaker 00: in an IG's office discloses sensitive information about a pending investigation to a target. [00:12:36] Speaker 00: And the IG could pretty reasonably think that that is pretty significant infraction. [00:12:44] Speaker 02: Perhaps, but that's not, I don't think factually what happened here. [00:12:48] Speaker 02: The person who Ms. [00:12:49] Speaker 02: Marketo disclosed information to was not a target. [00:12:52] Speaker 02: She was a witness and a former employee [00:12:55] Speaker 02: and the name of the target that the agency has claimed is law enforcement sensitive was not Mark's law enforcement sensitive and in fact appears unredacted in the proposed removal letter. [00:13:08] Speaker 02: So the agency has characterized it as very serious. [00:13:11] Speaker 00: Do you think the DOD IG had a retaliatory motive? [00:13:17] Speaker 02: I think that the DOD IG used [00:13:20] Speaker 02: the letter from the accusations from Mr. Hilo as the basis. [00:13:24] Speaker 00: I understand your theory that that investigation was caused by something that was improperly motivated and therefore it's fruit of a poisonous tree and we just have to ignore it. [00:13:39] Speaker 00: But the DOD [00:13:42] Speaker 00: investigators had no, aren't alleged to have had a bad motive, right? [00:13:48] Speaker 00: And they found that there was serious misconduct. [00:13:55] Speaker 00: And we use that finding in when you run the clock backwards and ask yourself what would have happened at the beginning of this process, but for the improper motive, [00:14:09] Speaker 00: could take into account that a neutral party investigated and found that the misconduct was substantial. [00:14:19] Speaker 02: I don't think the fact that the Defense Department investigation was independent means that it was not pretextual and retaliatory. [00:14:28] Speaker 01: And that's because the motive behind the referral carries over. [00:14:35] Speaker 02: Yes. [00:14:36] Speaker 02: And their evidence. [00:14:37] Speaker 01: And only because the motive behind the referral carries over. [00:14:40] Speaker 02: I think also because of the agency's conduct during the investigation, including misrepresenting what the investigation was about and trying to avoid investigation of whistleblower retaliation. [00:14:55] Speaker 02: And that's once Congress expressed concern that Ms. [00:14:59] Speaker 02: Marketo was being retaliated against, the agency said, well, you know, we've [00:15:03] Speaker 02: referred the letter that, you know, from Mr Lawson that accused her of retaliation, we referred that to the Council for Inspectors General, and they said okay and then they referred it to DOD and USAID omitted in those communications to Congress that they had actually [00:15:21] Speaker 02: told Sigi that DODOIG was investigating reprisal and that was simply never the case. [00:15:27] Speaker 02: And I think that that's evidence that the post-hoc justifications that we see for the investigation are different from the real motive, which is right there in the letter, which is that as she herself identified as a whistleblower. [00:15:41] Speaker 02: And so why would her whistleblowing be necessary in [00:15:45] Speaker 02: referring her for an outside investigation. [00:15:48] Speaker 00: If there's a causal link between- To explain why state is asking DOD to do its investigations. [00:15:58] Speaker 00: Right. [00:15:59] Speaker 02: And I don't think the plain language of the Whistleblower Protection Act allows for that because the question is would they have taken the same action? [00:16:08] Speaker 02: Proving the charges and the nexus and the penalty [00:16:12] Speaker 02: is not enough. [00:16:13] Speaker 02: They have to show that they would have acted in the same way. [00:16:16] Speaker 01: But I think the question then is, is the same way doing an investigation or doing an investigation farmed out to defense OIG? [00:16:28] Speaker 01: And I guess the question is, is there any harm to her that the investigation was done by defense OIG rather than by USAID OIG? [00:16:38] Speaker 01: If it's the referral that is [00:16:42] Speaker 01: that you're characterizing as retaliatory. [00:16:44] Speaker 01: It's just hard to see that any harm flows from that as distinct from saying, doing an investigation of these infractions at all. [00:16:53] Speaker 01: And if that's the question, then it gets back to Judge Katz's point, which is in light of someone's whistle blowing, when there's also evidence of a serious breach of investigative confidentiality, the agency's hands are tied and no investigation by anybody is supposed to take place. [00:17:10] Speaker 01: That's the difficulties. [00:17:13] Speaker 02: I think the reason that the referral to the defense inspector general is so significant in this case is because the agency has said that it would not have fired her but for that investigation. [00:17:25] Speaker 02: That's the question. [00:17:26] Speaker 01: But for the results of an investigation into her wrongdoing, right? [00:17:30] Speaker 01: So I guess, Mike, let me try to get a better handle on your position. [00:17:36] Speaker 01: Is it your position that in sending it to defense, they should have said, you know, we have some internal potential conflicts of interest, and that's why we're sending it to you, instead of saying whistleblowing, and that would have been fine. [00:17:54] Speaker 02: I think that the agency, if they wanted to discipline Ms. [00:17:57] Speaker 02: Marcato, should have treated her the same as non-whistleblowers. [00:18:03] Speaker 01: Well, we get that at the high level of generality, but if they have somebody who's violating a serious, you know, investigative confidentiality policy, likely, I mean, we don't, we have reason to believe they would also have investigated that person was without any whistleblowing. [00:18:19] Speaker 01: So, and then there's elsewhere you suggest that what they should have done is included [00:18:24] Speaker 01: the whistleblowing reprisal issue in the referral to defense OIG, is that your position? [00:18:31] Speaker 02: No, that's not. [00:18:34] Speaker 01: OK. [00:18:34] Speaker 02: It's not that they should have included that. [00:18:36] Speaker 02: It's that their conduct in trying to exclude it demonstrates the pretextual nature. [00:18:42] Speaker 02: And not just exclude the whistleblowing retaliation from the defense inspector general investigation, but mischaracterizing it as based on a complaint from Ms. [00:18:51] Speaker 02: Marcato of reprisal. [00:18:53] Speaker 02: I mean, that's at odds with the whole purpose. [00:18:56] Speaker 02: The investigation was a complaint from Trujillo about Ms. [00:18:59] Speaker 02: Marketo. [00:18:59] Speaker 02: She was the target. [00:19:01] Speaker 02: So for them to tell Siggy, oh, the defense IG is already investigating a complaint of reprisal from Marketo. [00:19:08] Speaker 02: You should just forward this on over there. [00:19:11] Speaker 02: That is a manipulative way of avoiding anybody looking at the retaliation issue. [00:19:17] Speaker 02: They cannot, I think, you know, if the charge was looking so retaliatory, [00:19:23] Speaker 02: Or if the conduct was looking so retaliatory and so potentially retaliatory that they had to refer it to an outside investigation to give it sort of the veneer of legitimacy. [00:19:32] Speaker 02: I think that's exactly what the plain language of the statutes trying to prevent that whistleblowing is in one lane and personnel actions are in the other. [00:19:42] Speaker 02: And if they stay that way, then agencies should be able to clearly and convincingly demonstrate that. [00:19:49] Speaker 02: And here, they did not stay that way. [00:19:50] Speaker 02: They're linked. [00:19:51] Speaker 02: And that's why the AJ's decision is unsupported by the evidence. [00:19:56] Speaker 02: I see that my time has expired, but I'm happy. [00:19:58] Speaker 01: We'll give you a couple of minutes for rebuttal. [00:20:01] Speaker 01: Thank you. [00:20:02] Speaker 01: Thank you. [00:20:05] Speaker 01: Good morning, Ms. [00:20:06] Speaker 01: Kidd Miller. [00:20:07] Speaker 01: You may proceed. [00:20:07] Speaker 03: Good morning. [00:20:10] Speaker 03: May it please the court? [00:20:11] Speaker 03: I'd like to start at the same place that Ms. [00:20:13] Speaker 03: Mercado began, and that is with the plain language of the statute. [00:20:18] Speaker 03: Under 5 U.S.C. [00:20:20] Speaker 03: 1221E2, corrective action cannot be ordered if there's a finding, if the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action, here removal, in the absence of such disclosure. [00:20:35] Speaker 03: The administrative judge found that here, and that finding is supported by substantial evidence. [00:20:41] Speaker 03: Ms. [00:20:42] Speaker 03: Marcato's theory depends on the idea that not only Mr. Ross, the initial supervisor, but also DOD, OIG, and then later the proposing and deciding officials who she herself describes as not even having been involved in the original disclosures or misconduct, that all of them were somehow influenced by others who may have had a retaliatory intent. [00:21:08] Speaker 03: This isn't just a cat's paw theory, it's more like a whole litter of cats where each has its paw on the next one in the chain. [00:21:16] Speaker 03: The administrative judge fully considered motive of the different officials involved in the removal decision at pages 724 and 725 of his decision. [00:21:31] Speaker 03: And the DOD Office of Inspector General portion is extremely important in this case. [00:21:37] Speaker 03: The administrative judge found, and I quote, no information in the record and no evidence in the record of animus or any retaliatory motive on the part of DOD. [00:21:49] Speaker 01: Ms. [00:21:49] Speaker 01: Kidmiller, the AJ doesn't deal with what seems like potentially the most arguably potent evidence of retaliation, which was by acting [00:22:02] Speaker 01: Inspector General Mike Carroll back in 2012. [00:22:08] Speaker 01: He was angry. [00:22:09] Speaker 01: He raised his voice. [00:22:10] Speaker 01: He was yelling about Mercado after she made some audit recommendations. [00:22:14] Speaker 01: And Ross testifies to that effect. [00:22:17] Speaker 01: I think Deborah Scott maybe also testifies about that. [00:22:21] Speaker 01: They were present at that meeting. [00:22:23] Speaker 01: They're the ultimate people acting on this. [00:22:26] Speaker 01: And it was some time before. [00:22:31] Speaker 01: my understanding is that Mercado's theory is that, you know, this kind of reaction to her whistleblowing was really what put her in the doghouse. [00:22:42] Speaker 01: Just to mix some metaphors here. [00:22:45] Speaker 01: Cat's paw in the doghouse. [00:22:48] Speaker 01: And that it's somewhat [00:22:53] Speaker 01: In Mercado's view, it's problematic that the AJ did not assess the evidence of retaliation stemming from the acting IG that was known. [00:23:08] Speaker 01: The displeasure that was expressed was known to these deciding officials. [00:23:17] Speaker 03: Your honor, first, one point of clarification, which I think is clear, but I do just want to clarify. [00:23:22] Speaker 03: We do have two Mr. Carols in the record. [00:23:26] Speaker 03: Yes, right. [00:23:27] Speaker 03: So I just want to make sure that's clear, that the deciding official, who was a Jason Carroll, is different than Michael Carroll. [00:23:32] Speaker 01: Right. [00:23:32] Speaker 01: They misspoke. [00:23:33] Speaker 03: It's Deborah Scott. [00:23:36] Speaker 01: Deborah Scott was present, but the later hired Carroll, no relation Carroll, wasn't present. [00:23:41] Speaker 01: Thank you. [00:23:41] Speaker 01: No, you're right. [00:23:42] Speaker 03: Yes, your honor. [00:23:45] Speaker 03: that you were clear on that from the question. [00:23:47] Speaker 03: I just wanted to, I myself was confused about that when I first got the case. [00:23:51] Speaker 03: So, I think the important point here is that Michael Carroll had left the agency before the misconduct that was an issue in this case. [00:24:04] Speaker 03: In fact, it was the later Inspector General, Ms. [00:24:07] Speaker 03: Carr, was the person who ultimately made the decision to refer [00:24:11] Speaker 03: to the Department of Defense OIG for investigation. [00:24:15] Speaker 01: Right, and Marcato's view, sorry to interrupt just to sort of feed into that. [00:24:20] Speaker 01: Marcato's view is Trujillo was very much a protege of the first Mr. Carroll and she remains in the agency and she remains a mover behind the discipline that ends up resulting in [00:24:37] Speaker 01: the firing, which is why I use the cat's paw formulation, because I think Marcato's stronger case is, sure, Carol the first wasn't the one who pulled the trigger, but he worked closely with Trujillo. [00:24:57] Speaker 01: She helped to build the record and react and respond to the infractions. [00:25:06] Speaker 01: So there is a really pretty clear path from retaliation to discharge. [00:25:13] Speaker 01: And the AJ doesn't really address that. [00:25:16] Speaker 01: The AJ is more formalistic saying, we have these two officials. [00:25:20] Speaker 01: They recently arrived. [00:25:22] Speaker 01: We have a determination by defense, OIG. [00:25:26] Speaker 01: And that's not tainted by the retaliation. [00:25:32] Speaker 03: Although the administrative judge doesn't explicitly discuss Ms. [00:25:36] Speaker 03: Trujillo in that motive section of his opinion, he does explicitly discuss Mr. Carroll, who was the deciding official. [00:25:46] Speaker 03: The evidence presented to the administrative judge demonstrated that Ms. [00:25:52] Speaker 03: Trujillo had retired some nine months before [00:25:57] Speaker 03: the decision to remove Ms. [00:25:58] Speaker 03: Marcato. [00:25:59] Speaker 03: Now, as Ms. [00:26:00] Speaker 03: Marcato points out, Ms. [00:26:01] Speaker 03: Trujillo was still working as a re-employed annuitant at the time, but the record showed that she was at her home working from Texas, and she was working in the audit division. [00:26:17] Speaker 03: This is all explained in a declaration that Ms. [00:26:20] Speaker 03: Trujillo submitted to the administrative judge at page 369. [00:26:25] Speaker 03: of the record. [00:26:26] Speaker 03: So she wasn't in the management department anymore, which is where Mr. Carroll and Ms. [00:26:32] Speaker 03: Marcato worked. [00:26:33] Speaker 03: She was in a different department, a different geographic location, working part-time on much lower level projects as the need arose. [00:26:41] Speaker 03: So in the context of all of that evidence that the people whom Ms. [00:26:50] Speaker 03: Marcato accused of having motive to retaliate [00:26:55] Speaker 03: had by and large all left the agency. [00:26:58] Speaker 03: And if you look at page 725 of the administrative judge's decision, he focuses on some testimony from Ms. [00:27:05] Speaker 03: Marcato. [00:27:06] Speaker 03: And although he broadly cites just testimony of the appellant, I think the corresponding site here is pages 631 and 632 of the record. [00:27:17] Speaker 03: And in that part of her testimony, Ms. [00:27:19] Speaker 03: Marcato was explaining that even she did not believe. [00:27:22] Speaker 03: that Ms. [00:27:23] Speaker 03: Scott and Mr. Carroll, the deciding official, were themselves motivated to retaliate against her. [00:27:30] Speaker 03: Rather, she thought they were, quote, influenced by this senior management, who was at that point largely gone from the agency. [00:27:38] Speaker 03: And the administrative judge explicitly found Mr. Carroll's credibility on this issue to outweigh the appellant, whose answers appear to have been speculative. [00:27:49] Speaker 03: So could the administrative judge have perhaps written us something more fulsome here and said it more explicitly? [00:27:55] Speaker 03: Sure. [00:27:56] Speaker 03: But the Court of Appeals does not review the writing of the administrative judge. [00:28:02] Speaker 03: The point is to make sure that he did the correct analysis. [00:28:05] Speaker 03: And this analysis on page 75 shows that he did fully consider the motive evidence and focused appropriately [00:28:15] Speaker 03: on that deciding official who made the decision that is also the focus of the plain language of the statute removal. [00:28:21] Speaker 01: Well, let's talk for, oh, go ahead. [00:28:23] Speaker 01: Go ahead, Judge Casas. [00:28:24] Speaker 00: Sorry. [00:28:25] Speaker 00: Can I ask about a different aspect of the judge's reasoning, which is it seems a little bit internally inconsistent to the extent that when he was assessing [00:28:42] Speaker 00: the prima facie case, he said there's some circumstantial evidence of retaliation under this, what is it, time? [00:28:55] Speaker 00: Knowledge. [00:28:56] Speaker 00: Time knowledge test. [00:28:59] Speaker 00: And then when he comes to the defense and asks himself, [00:29:05] Speaker 00: whether the agency would have made the same decision. [00:29:08] Speaker 00: And obviously those questions are related. [00:29:10] Speaker 00: He's looking at the extent of the misconduct against the extent of the retaliation. [00:29:17] Speaker 00: At that point, he says the appellant failed to show the agency's actions were motivated by retaliation. [00:29:24] Speaker 00: Seems like those two statements are inconsistent. [00:29:26] Speaker 00: If the second one were true, there would be no prima facie case in the first place. [00:29:32] Speaker 00: How do we reconcile those? [00:29:35] Speaker 03: Well, there's no inconsistency there at all. [00:29:39] Speaker 03: Under the prima facie case and the knowledge timing test, and this is discussed at page 721 of the administrative judge's decision, the point is, as the test implied, is purely the knowledge that Ms. [00:29:54] Speaker 03: Marcato had made with the blower disclosure. [00:29:57] Speaker 03: So at page 721, we see the administrative judge referencing the fact that Mr. Carroll [00:30:03] Speaker 03: learned about several of Ms. [00:30:06] Speaker 03: Marcato's disclosures, that Ms. [00:30:08] Speaker 03: Scott had actual knowledge of the appellant's whistleblower disclosures. [00:30:12] Speaker 03: And of course, the DOD OIG investigation acknowledged that she was a whistleblower. [00:30:18] Speaker 00: Right, but it's not knowledge for its own sake. [00:30:22] Speaker 00: It's knowledge as evidence that the decision, at least in part, was motivated by a bad motive. [00:30:34] Speaker 03: I disagree that the contributing factor element has anything to do with motive. [00:30:40] Speaker 00: It's that the decision makers acknowledge Sorry, I'm using the shorthand for the retaliatory intent. [00:30:53] Speaker 03: Well, and I'm not trying to make a wording point, but a broader point that making the prima facie case of a contributing factor is a relatively low bar. [00:31:06] Speaker 03: And in this case, where Ms. [00:31:07] Speaker 03: Marcato herself would often inform her supervisors that she considered herself to be a whistleblower, they knew of that status. [00:31:19] Speaker 00: I understand that, and it would be perfectly [00:31:23] Speaker 00: In my view, it would be perfectly reasonable on this record for the judge to have said, there's some evidence, there's enough to clear the relatively low bar of the prima facie case. [00:31:37] Speaker 00: And then I have to assess the defense with the agency have done the same thing. [00:31:42] Speaker 00: And there's substantial evidence of serious misconduct. [00:31:47] Speaker 00: and the retaliatory evidence is relatively attenuated and circumstantial, and therefore I find by clear and convincing evidence they would have done the same thing. [00:32:00] Speaker 00: But he didn't quite say that. [00:32:01] Speaker 00: He said there was no evidence at the defense stage. [00:32:06] Speaker 00: He said there was, she failed to prove, failed to prove the agency's actions were motivated by retaliation. [00:32:18] Speaker 03: Well, so the administrative judge made that statement specifically regarding the second car factor. [00:32:30] Speaker 03: But before launching into those car factors, and just as a quick point of background here, the federal circuit and several other circuits at this point have now adopted these same car factors. [00:32:44] Speaker 03: This court describes those car factors in the 2005 decision, COS-COSOA, as a gloss on the statutory requirements of 1221. [00:32:54] Speaker 03: So it's not necessary that the agency even present evidence on all three car factors, but they are a helpful tool for the administrative judge and this court in turn to analyze [00:33:08] Speaker 03: whether the agency would have taken the same action. [00:33:10] Speaker 03: So the administrative judge very clearly found before analyzing the individual factors that the agency showed by clear and convincing evidence it would have removed during the absence of disclosure and made that same finding again at the end of his analysis. [00:33:26] Speaker 03: Now while he does refer to the appellant's failing to show retaliatory motive, [00:33:35] Speaker 03: I think that that's more language reacting to the reality of how evidence of retaliatory motive typically comes into the record. [00:33:46] Speaker 03: The agency's trying to prove a negative. [00:33:48] Speaker 00: No, I understand. [00:33:49] Speaker 00: I understand. [00:33:50] Speaker 00: And you're sort of answering the burden shifting point. [00:33:54] Speaker 00: But I'm not sure. [00:33:56] Speaker 00: I guess I'm just not sure it's internally consistent. [00:34:00] Speaker 01: So on the burden shifting point, [00:34:05] Speaker 01: Your brief says that the AJ's reference to Mercado's failure to prove retaliatory motive is, quote, stray language, close quote, and that was page 21 of your brief. [00:34:20] Speaker 01: You know, if you look at the section on retaliatory motive in the in the opinion, the heading in bold says the appellant has failed to show retaliatory motive. [00:34:32] Speaker 01: And the first sentence says the appellant has failed to show the agency's actions were motivated by retaliation. [00:34:38] Speaker 01: So it's, it's hard to characterize as stray [00:34:42] Speaker 01: language. [00:34:44] Speaker 01: And some of what I hear you say today is a little bit different from brushing it off as straight language. [00:34:52] Speaker 01: And I guess I'd like to hear more about your view. [00:34:58] Speaker 01: Is it that, I mean, to some extent, it seems like the other car factors are speaking directly to the retaliatory mode of question as well. [00:35:13] Speaker 01: And if you see it that way, then in showing what it would have done anyway, and in showing how it treated other similarly situated people, the agency is showing a lack of retaliatory motive. [00:35:27] Speaker 01: Is that your theory? [00:35:29] Speaker 03: Well, I do think it's true that there can be overlap between the car factors, particularly one and two, the strength of the agency's actions was very [00:35:42] Speaker 03: serious misconduct, especially lying under oath, for example, to another investigator from another office of inspector general. [00:35:52] Speaker 03: The administrative judge's language here has to be read in context, of course. [00:35:59] Speaker 03: And in context, I think it's more of a reaction to the strength of the agency's evidence that it took its action for proper motives [00:36:10] Speaker 03: and also a reaction to the absence of evidence in the record that there was a retaliatory motive, particularly on the part of deciding official Mr. Carroll. [00:36:20] Speaker 03: It's very interesting to note that in Whitmore, which is one of the leading Federal Circuit cases on the car factors, and it's very clear that the burden is clear in convincing evidence for the agency. [00:36:33] Speaker 03: The Federal Circuit even has a line at page 1372 of its opinion [00:36:38] Speaker 03: where it says, federal employees are entitled to rely on circumstantial evidence to prove a motive to retaliate. [00:36:45] Speaker 03: So the federal circuit was quite clear, the burden is on the agency, but we see even the federal circuit using the same kind of language that the administrative judge uses here. [00:36:55] Speaker 03: And I think it's just a reflection of the reality that the agency can put on its evidence for proper motive, which the administrative judge analyzes here. [00:37:05] Speaker 03: But it's typically circumstance that comes from the appellant that if a motive, an improper motive really is what motivated the agency, it's typically as a reality coming from the appellant. [00:37:20] Speaker 03: And I think this is probably a reaction. [00:37:22] Speaker 01: I have to say, I'm sorry, but you somewhat confused me. [00:37:27] Speaker 01: Let me just ask you one simple question. [00:37:28] Speaker 01: Is it your position that the burden is on the agency [00:37:35] Speaker 01: to show each of the car factors by clear and convincing evidence? [00:37:40] Speaker 03: No. [00:37:40] Speaker 03: The burden is on the agency to show by clear and convincing evidence that it would have removed Ms. [00:37:46] Speaker 03: Marcato even in the absence of her whistleblower disclosures. [00:37:51] Speaker 03: The car factors are a tool to help analyze that. [00:37:58] Speaker 03: According to federal circuit case law, for example, the agency is not even required to offer evidence as to each of the three car factors. [00:38:06] Speaker 03: So it's not that the agency has to prove every car factor by clearing convincing evidence. [00:38:12] Speaker 03: The touchstone is always that question that comes from the statute, whether the agency showed it would have removed Ms. [00:38:19] Speaker 03: Marcato anyway. [00:38:20] Speaker 01: So if Ms. [00:38:21] Speaker 01: Marcato or a plaintiff comes forward with evidence of retaliatory motive, [00:38:28] Speaker 01: And the agency doesn't rebut that evidence directly at all, but powerfully shows that it has other grounds that are strong for firing the person. [00:38:45] Speaker 01: It might still succeed in establishing that it would have taken the action anyway. [00:38:55] Speaker 03: Yes, Your Honor. [00:38:56] Speaker 01: And so, in this case, if Marcato had had, instead of the inference arising out of timing and knowledge, had had direct evidence of someone saying, you know, we can't have her here. [00:39:11] Speaker 01: She's, you know, the whistle blowing is distracting us from our mission. [00:39:19] Speaker 01: The agency left that on the table, but showed that she seriously violated rules and that her discharge was similar to discharges of other people who had seriously violated rules. [00:39:34] Speaker 01: That could succeed in your view under the statute and under CAR. [00:39:40] Speaker 03: I think it would depend on who was giving that testimony. [00:39:45] Speaker 03: So if hypothetically the deciding official here, Mr. Carroll, had made statements that he felt very influenced and pressured to retaliate in his decision, which is the precise opposite of what he testified. [00:39:58] Speaker 03: But if that had been the testimony, then I think that that would have been a much stronger case for Ms. [00:40:05] Speaker 03: Marcato. [00:40:06] Speaker 03: We would have expected to see the administrative judge engaging with and analyzing that evidence in the opinion. [00:40:15] Speaker 01: Judge Katz, anything further? [00:40:18] Speaker 01: Thank you, Ms. [00:40:19] Speaker 01: Kidmiller. [00:40:19] Speaker 01: All right, well, I think we used up all your time on your opening, but as I said, Ms. [00:40:27] Speaker 01: McClellan, you can have up to two minutes. [00:40:31] Speaker 01: You may not take it all, but for your rebuttal. [00:40:34] Speaker 02: Thank you. [00:40:35] Speaker 02: I'd just like to point out the discussion of the low burden for Ms. [00:40:40] Speaker 02: Marcato. [00:40:40] Speaker 02: That was an intentionally low burden Congress put in [00:40:44] Speaker 02: And the agency's burden is high. [00:40:46] Speaker 02: And for a matter to be proven clearly and convincingly, the administrative judge was supposed to weigh the countervailing evidence. [00:40:55] Speaker 02: That did not happen here. [00:40:56] Speaker 02: It wasn't simply Ms. [00:40:57] Speaker 02: Marketo's testimony. [00:40:59] Speaker 02: The whistleblower ombudsman from the agency described a culture of retaliation, described a history of retaliation against Ms. [00:41:06] Speaker 02: Marketo, described that he was pressured to change opinions that he had written against disciplining Ms. [00:41:11] Speaker 02: Marketo in the past. [00:41:14] Speaker 02: And that is likewise with Mr. Ross, who's the supervisor. [00:41:18] Speaker 02: The AJ writes it as though Mr. Ross, you know, initiated this action when in fact he testified that he was pressured by Ms. [00:41:27] Speaker 02: Trujillo, that he felt she was unduly pressuring him, that he felt she had a retaliatory motive, and that he himself was retaliated against for not going along with it. [00:41:36] Speaker 02: That evidence appears nowhere. [00:41:38] Speaker 02: in the AJ's decision. [00:41:39] Speaker 02: So to find a matter clearly and convincingly proven without weighing that evidence, that's a finding not supported by the record. [00:41:47] Speaker 01: Wasn't Ross also, though, that one of the recipients of Ms. [00:41:54] Speaker 01: Marqueda's false statements, and he does support the agency that, in fact, she lied directly to Trujillo and to Ross? [00:42:08] Speaker 02: view the false statements charge as clear cut in that way. [00:42:12] Speaker 02: I think that Mr. Ross's testimony is mixed. [00:42:15] Speaker 02: I think he says, I don't remember saying that to the defense IG, that he would believe Ms. [00:42:20] Speaker 02: Marcato over Ms. [00:42:21] Speaker 02: Trujillo. [00:42:22] Speaker 02: But I think that what's significant then is that the question is no longer, can the agency prove that it could have removed Ms. [00:42:31] Speaker 02: Marcato for this misconduct? [00:42:33] Speaker 02: That's not enough. [00:42:34] Speaker 01: That's what- That it would have. [00:42:36] Speaker 02: That it would have. [00:42:37] Speaker 02: That's the standard. [00:42:39] Speaker 02: And proving that it would have, I think in this case, because it's based on this defense inspector general investigation, includes proving that it would have undertaken this investigation. [00:42:48] Speaker 02: And none of that, why the investigation was undertaken, that discussion that we had today appears in the AJ's analysis. [00:42:56] Speaker 01: So in order to rule for you, do we have to find that in the absence of [00:43:02] Speaker 01: Or do we have to find that the AJ erred in failing to account for a reality supported in the record that in the absence of a retaliatory motive, even in the face of these infractions, the agency would not have investigated? [00:43:23] Speaker 02: No, not exactly. [00:43:28] Speaker 02: and certainly not as a bright line rule. [00:43:30] Speaker 02: I think it's a fact-dependent question. [00:43:33] Speaker 02: When you have the Deputy Inspector General saying, we would not have fired her if this had not been substantiated by the Department of Defense Inspector General, then it's not. [00:43:46] Speaker 02: You know, I think he says, had there been no substantiated findings out of the defense inspector general investigation, that's the- Because that's who did it. [00:43:55] Speaker 01: But if you accept that it was a matter of course that somebody would have investigated it, then the fact that it may have hinged on her self-identification as a whistleblower, that it went to defense, doesn't, it's just, it feels like, [00:44:14] Speaker 01: it carries more than, it bears more weight than it can to say that that referral was somehow retaliatory because it referenced whistleblowing and therefore what we should compare it to is a no investigation baseline as opposed to an in-house investigation baseline or an investigation by them that said, mentioned some generic conflict of interest rather than whistleblowing. [00:44:40] Speaker 02: Well, I think it hinges on [00:44:43] Speaker 02: The agency has not shown that it would have taken the defense inspector general without it's the agency's burden to show that they would have done this. [00:44:52] Speaker 02: Yeah, there's a dearth of evidence that the agency's justifications aren't supported by the written record. [00:44:59] Speaker 02: And so it's not so much that you have to find that [00:45:01] Speaker 02: that they're not allowed to investigate, certainly not, but there's no evidence of what was, what needed to be proved. [00:45:09] Speaker 02: Ms. [00:45:09] Speaker 02: Markato submitted the email. [00:45:11] Speaker 02: They had it. [00:45:12] Speaker 02: They said it was self-evident. [00:45:14] Speaker 02: There's no evidence of why her whistle-blown is even a relevant inclusion in a letter accusing her of misconduct. [00:45:20] Speaker 02: And I think that that, those facts evince the pretextual nature and then combined with the AJ's failure to reckon with them. [00:45:32] Speaker 01: Do you have any more questions? [00:45:35] Speaker 01: All right. [00:45:36] Speaker 01: Thank you both very much. [00:45:37] Speaker 01: The case is submitted.