[00:00:16] Speaker 03:
Next case for argument is 153072 McCarthy versus MSPB.

[00:01:00] Speaker 03:
Whenever you're ready, help me with the pronunciation of your last name.

[00:01:03] Speaker 00:
Dinnerstein.

[00:01:06] Speaker 00:
Yes, so my name is Paula Dinnerstein.

[00:01:07] Speaker 00:
I'm with Public Employees for Environmental Responsibility or PEER, and we represent the petitioner in this case, Robert McCarthy.

[00:01:16] Speaker 00:
There's really not very many issues left in dispute at this stage of this case.

[00:01:21] Speaker 00:
The board has agreed that the Whistleblower Protection Enhancement Act, the WPEA,

[00:01:26] Speaker 00:
applies to cases like this one, which were pending on appeal when that law became effective.

[00:01:31] Speaker 00:
The board agrees that its usual standards for reopening have been met in the sense that the motion... Now, how does this work?

[00:01:39] Speaker 03:
This is just a basic question.

[00:01:41] Speaker 03:
The law applies retroactively to all pending cases.

[00:01:45] Speaker 03:
This case was pending on rehearing when the law changed.

[00:01:48] Speaker 03:
That's right.

[00:01:49] Speaker 03:
Did you come in here on rehearing and say,

[00:01:52] Speaker 03:
laws changed, you should take a look.

[00:01:54] Speaker 03:
And then I know you filed for cert the Supreme Court.

[00:01:57] Speaker 03:
Did you make that argument to the Supreme Court?

[00:01:58] Speaker 03:
No, we did not, because.

[00:02:01] Speaker 03:
But my question is, and then you can answer both parts.

[00:02:03] Speaker 03:
My question is, if you did not, then are you saying that you still have an opportunity to reopen it by a motion to reopen to the board?

[00:02:14] Speaker 00:
Yes.

[00:02:15] Speaker 00:
And the reason is because when we were on rehearing before this court and when we filed the cert petition,

[00:02:22] Speaker 00:
The board had not yet decided the case of Day versus MSPB, which was the one that decided that there was retroactive application.

[00:02:32] Speaker 00:
And in previous cases, once the board decides there's retroactive application, then you can come in and reopen and say, well, apply it to me.

[00:02:42] Speaker 03:
But at the time- You say in previous cases, is there some case you can point to which establishes that that's how you do it?

[00:02:51] Speaker 00:
I don't have that at the moment.

[00:02:52] Speaker 00:
I can give it to you.

[00:02:53] Speaker 00:
But I believe we cited a case like that in our opening brief.

[00:02:57] Speaker 00:
And I will, when I come back up, I'll cite that to you.

[00:03:02] Speaker 00:
But the point is that we had no way of knowing that we were eligible for reopening, that the new law did apply to Mr. McCarthy until the board made that decision.

[00:03:15] Speaker 00:
And it was a very hotly contested case.

[00:03:18] Speaker 00:
the day case as to whether there was retroactive application of this portion of the Whistleblower Protection Enhancement Act, Section 101, which has to do with how protected disclosures are defined.

[00:03:31] Speaker 00:
And the board subsequently decided that certain other portions of the WPEA were not retroactive.

[00:03:37] Speaker 03:
But when you say retroactive, if the statute is applied to pending cases, you are stretching that a bit, right?

[00:03:44] Speaker 03:
You're saying it applies to cases that are still open.

[00:03:47] Speaker 03:
and it applies to cases that are now closed that were open at the time?

[00:03:53] Speaker 00:
Yes, and the board does not disagree with that.

[00:03:57] Speaker 00:
That's not one of the points in dispute.

[00:04:00] Speaker 00:
The board agrees that the WPEA would apply to this case because it was pending on appeal at the time that the act became effective.

[00:04:11] Speaker 03:
Let me ask you now, what's the problem?

[00:04:14] Speaker 03:
I mean, at least as a fallback position, the government is saying if we have jurisdiction to review what the board did here, the answer is you go back to the OSC under the exhaustion principles.

[00:04:29] Speaker 03:
What's the problem with doing that?

[00:04:33] Speaker 03:
I mean, why are we spending several years here or a year here

[00:04:37] Speaker 03:
dealing with this as opposed to you're just doing what the government concedes.

[00:04:41] Speaker 00:
You could do it again.

[00:04:43] Speaker 00:
Well, this case could be disposed of very quickly here because all you need to do is apply the WPEA to the complete record that's already been formed in this case.

[00:04:53] Speaker 03:
What they're asking... You're suggesting that we decide it completely on the merits, finally on the merits without the MSPB having looked at it?

[00:05:00] Speaker 03:
Yes, I believe that you could because there has been... Well, maybe we can do a lot of things, but I mean it's a big

[00:05:06] Speaker 03:
assumption that we would think that that's the prudent way to proceed.

[00:05:10] Speaker 03:
So what if we agree with the board that you have to exhaust, that this is an allegation which is different than the one you pressed in the earlier case?

[00:05:19] Speaker 00:
Well we would say that that McCarthy did exhaust because the OSC procedure is a procedure that's meant to be friendly to people who are not lawyers

[00:05:32] Speaker 00:
What the exhaustion requires is that you give them information.

[00:05:35] Speaker 00:
You give them information.

[00:05:37] Speaker 00:
What protected disclosures are you talking about?

[00:05:41] Speaker 00:
What are the adverse personnel actions that you think were taken in response to those disclosures?

[00:05:48] Speaker 00:
There's not a requirement to put the correct legal label on them.

[00:05:52] Speaker 00:
What McCarthy did here is he put those disclosures, the ones that were in his legal memo, before the OSC.

[00:05:58] Speaker 00:
He said, hey, this was the reason I was fired.

[00:06:02] Speaker 02:
Pardon me?

[00:06:02] Speaker 02:
You took me aback when you said it's designed to be friendly to persons who are not lawyers.

[00:06:07] Speaker 02:
He is a lawyer.

[00:06:09] Speaker 00:
He is a lawyer, and because he's a lawyer, this is what the board is trying to hold this against him, because if he hadn't been a lawyer...

[00:06:17] Speaker 00:
He probably would have said that my disclosures in the legal memos are protected, but because he knew the case law and he knew the Huffman case, he didn't claim that.

[00:06:26] Speaker 03:
There is an exhaustion requirement for the OSC.

[00:06:29] Speaker 03:
Yes, there is.

[00:06:29] Speaker 03:
And when he was there the first time on the initial case, what he was alleging as the protected disclosure was the OIG stuff and not the legal memorandum.

[00:06:42] Speaker 03:
Is it problematic?

[00:06:43] Speaker 03:
Why are you resisting saying?

[00:06:45] Speaker 00:
He did not put the label of protected on the disclosures.

[00:06:49] Speaker 00:
But the facts of those disclosures were before the OSC.

[00:06:52] Speaker 00:
They had the opportunity to conduct an investigation.

[00:06:55] Speaker 00:
They had the opportunity to possibly order relief.

[00:06:58] Speaker 00:
And that's what the exhaustion remedy is for.

[00:07:00] Speaker 00:
But now that the law has changed, the case is different.

[00:07:05] Speaker 00:
You're arguing that we ought to ask him to go back to the very beginning and start at OSC again.

[00:07:11] Speaker 00:
There's nothing new to investigate.

[00:07:12] Speaker 00:
There's no new facts.

[00:07:14] Speaker 00:
Everything has been found.

[00:07:16] Speaker 00:
Everything has been litigated.

[00:07:18] Speaker 00:
All that needs to be done is apply the new law.

[00:07:20] Speaker 00:
Sorry.

[00:07:21] Speaker 03:
Stop.

[00:07:22] Speaker 03:
Why is it not new?

[00:07:23] Speaker 03:
The OSC investigates, and it reaches some conclusions about whether there's a violation.

[00:07:29] Speaker 03:
The first time this case was there, the allegation was the OIG memos were protected disclosures.

[00:07:36] Speaker 03:
And they concluded no violation on that basis.

[00:07:40] Speaker 03:
It's a different case now because the law is different.

[00:07:43] Speaker 03:
Now he's alleging the legal memorandum were protected disclosures.

[00:07:47] Speaker 03:
It's a different case.

[00:07:48] Speaker 03:
So why wouldn't the exhaustion requirement come into play again?

[00:07:53] Speaker 02:
And why shouldn't we allow them to take a look at what seems to me a much stronger argument because of the specific written comments by Commissioner Ruth?

[00:08:07] Speaker 00:
Because the OSC had all the same facts before it then.

[00:08:13] Speaker 02:
But it had different law.

[00:08:16] Speaker 00:
That's right.

[00:08:17] Speaker 00:
But this court can apply that different law just as well as going back, starting all over, possibly having a couple years of litigation before we get back here again.

[00:08:26] Speaker 02:
But you haven't exhausted your remedies.

[00:08:29] Speaker 00:
He exhausted the remedy by going to OSA.

[00:08:34] Speaker 00:
Those same disclosures before OSCE, he did a supplemental submission where he even went at length as to why the disclosures in those submissions met the requirements of being the kind of disclosures that are covered by the Whistleblower Protection Act.

[00:08:50] Speaker 00:
He explained all that.

[00:08:52] Speaker 00:
The only thing he didn't do is put a legal label on it saying,

[00:08:55] Speaker 00:
Those are protected, and that's not something that's required.

[00:08:59] Speaker 00:
OSC doesn't require the correct legal label.

[00:09:02] Speaker 00:
It requires facts.

[00:09:03] Speaker 03:
I don't think you're understanding what Judge Wallach and I are getting at, which is that whether or not he put a legal label on, the law at the time would have said that the only reasonable allegation you can have here with respect to what the protected disclosure is would have been the OIG.

[00:09:21] Speaker 03:
the law that the OSC had.

[00:09:24] Speaker 03:
So that was the allegation.

[00:09:26] Speaker 03:
They would not have investigated a case involving or answered a question dealing with the legal memorandum being protected because that was not the law.

[00:09:35] Speaker 03:
So clearly, how can you be saying that the case that was before them originally

[00:09:41] Speaker 03:
That exhaustion applies here when we're dealing with different legal articles.

[00:09:46] Speaker 00:
Now, what would have happened if McCarthy had put those legal memorandum before them and claimed they were protected?

[00:09:52] Speaker 00:
They would have said, no, they're not under existing law.

[00:09:56] Speaker 00:
And McCarthy would have been eligible to have his case reopened because then he would have exhausted his administrative remedies.

[00:10:01] Speaker 00:
It seems like an anomalous result that because he was an attorney and he knew the law and he simply didn't put that label on it,

[00:10:09] Speaker 00:
Unlike other litigants, and there are real litigants who we have cited, like the Nasuti case, where the person alleged falsely that something was protected, and they got to get their case reopened because they weren't conscientious like Mr. McCarthy and looked at the law and didn't try to allege something that wasn't true.

[00:10:29] Speaker 02:
No, we're not saying you're not going to have your case reopened.

[00:10:34] Speaker 02:
We're saying that in the first instance,

[00:10:39] Speaker 02:
they should get a shot at.

[00:10:40] Speaker 00:
But, for instance, in the Nassuti case, they didn't have to go back to OSC.

[00:10:46] Speaker 03:
That's because the allegation was there, right?

[00:10:49] Speaker 00:
The allegation was there and it was wrong.

[00:10:51] Speaker 00:
So Mr. McCarthy is being punished for being right on the law.

[00:10:54] Speaker 03:
It's not that much of an anomaly.

[00:10:56] Speaker 03:
If Congress passes a new cause of action,

[00:10:59] Speaker 03:
then more often than not, it's not an anomaly that someone would not have alleged that before the legal change.

[00:11:07] Speaker 03:
It doesn't strike me as being that unusual.

[00:11:11] Speaker 02:
The general concept of courts of appeals is that the bodies below have an opportunity to fully develop both the law and the facts for our review.

[00:11:22] Speaker 02:
And they haven't had an opportunity to review what strikes me as

[00:11:29] Speaker 02:
on pretty solid stuff when Ruth fires the guy for writing these memos that say he's violating the law.

[00:11:41] Speaker 00:
So what we would say is that the OSC is not like a court.

[00:11:46] Speaker 00:
You don't have to make allegations of law in a complaint.

[00:11:50] Speaker 00:
You're just supposed to bring them information and they investigate it.

[00:11:54] Speaker 00:
McCarthy did that.

[00:11:55] Speaker 00:
They investigated.

[00:11:56] Speaker 00:
There's no new information.

[00:11:57] Speaker 00:
There's nothing new for them to investigate.

[00:12:00] Speaker 00:
And you're asking them to go back and start.

[00:12:02] Speaker 00:
Sure there is.

[00:12:03] Speaker 03:
It's a new case.

[00:12:03] Speaker 03:
It's a different issue.

[00:12:04] Speaker 03:
They're not investigating now whether the motivation to fire him was based on disclosures to the OIG.

[00:12:13] Speaker 03:
They're investigating whether or not it was based on the disclosures, the legal memorandum.

[00:12:18] Speaker 03:
That's not right.

[00:12:21] Speaker 03:
They would be investigating an entirely different question this time around.

[00:12:25] Speaker 00:
The problem with that is that the board and this court have already decided, based on a fully developed record, that Mr. McCarthy was fired because of disclosures that are now protected.

[00:12:39] Speaker 00:
The board listened to Mr. Ruth's testimony and gave it credit, and this court also gave it credit that he fired Mr. McCarthy based on his legal memoranda.

[00:12:51] Speaker 00:
That factual finding has already been made.

[00:12:55] Speaker 00:
There's no reason to go back and start all over again at OSC.

[00:12:59] Speaker 00:
This court has already decided that all that needs to be done now is to apply the new law to what's already been found in this litigation.

[00:13:10] Speaker 03:
When we hear from the government, you're in too great a battle.

[00:13:17] Speaker 01:
Please, the court.

[00:13:20] Speaker 01:
Yeah, I think the exhaustion issue is an issue that the court can use to get rid of this case.

[00:13:27] Speaker 01:
We don't get rid of cases.

[00:13:29] Speaker 01:
We decide to.

[00:13:29] Speaker 01:
I apologize.

[00:13:31] Speaker 01:
We decide the case.

[00:13:32] Speaker 01:
But the disclosures are added.

[00:13:36] Speaker 01:
The new disclosure would be to a different person, the alleged wrongdoer, at an earlier date, which gets rid of the time problem from the previous case.

[00:13:46] Speaker 01:
technically a different disclosure.

[00:13:47] Speaker 01:
There's no label issue.

[00:13:49] Speaker 01:
It's just a different case, as the court has pointed out.

[00:13:53] Speaker 01:
I can address the last argument that the petitioner made, that the record is set and that this case is ready for decision.

[00:14:03] Speaker 03:
Why don't you address that?

[00:14:05] Speaker 01:
Clearly it's not, because the record was made on a completely different claim.

[00:14:11] Speaker 01:
It may well be that the agency can establish, for instance, that the legal memoranda were flawed.

[00:14:17] Speaker 01:
And perhaps the, I forget the gentleman's name, the head of the agency was correct in... Commissioner Ruth.

[00:14:27] Speaker 01:
Commissioner Ruth in removing the petitioner because the underlying legal memoranda were not good.

[00:14:33] Speaker 02:
Commissioner Ruth didn't say it was flawed.

[00:14:34] Speaker 02:
He said you failed to support me by challenging the legality of what I'm doing.

[00:14:43] Speaker 02:
Well, apparently he has a different view of what they were doing, whether it was illegal or not.

[00:14:48] Speaker 02:
Let me quote it.

[00:14:49] Speaker 02:
Failure to support me in a constructive and collegial manner as evidenced in your memoranda.

[00:14:55] Speaker 02:
He didn't say accurate or legally accurate.

[00:14:58] Speaker 02:
He said, you're not playing ball here.

[00:15:02] Speaker 01:
Well, I still submit that the agency can submit evidence saying that these legal memoranda were enacted.

[00:15:11] Speaker 02:
They can do whatever is relevant and what the body below decides.

[00:15:16] Speaker 01:
So as you noted, it's a different case and presumably a much stronger case.

[00:15:21] Speaker 01:
The other issues are whether the clerk's letter qualifies as a final order.

[00:15:26] Speaker 01:
I argued in my brief that Haynes is applicable here.

[00:15:29] Speaker 01:
I think the legal analysis in Haynes applies.

[00:15:34] Speaker 01:
I know it's factually distinguishable in that case there were multiple requests.

[00:15:38] Speaker 03:
Whereas yours, they were completely non-substantive.

[00:15:41] Speaker 03:
I mean, they were, you know, just, I mean, I don't know.

[00:15:44] Speaker 03:
The board may get 14,000 requests to reopen.

[00:15:47] Speaker 03:
They may get a dozen requests to reopen every day from some of the litigants who have lost below.

[00:15:53] Speaker 03:
And they just likely say, I reopened my case.

[00:15:56] Speaker 03:
You got it wrong.

[00:15:57] Speaker 03:
That's far different than, firstly, it's a motion by someone.

[00:16:03] Speaker 03:
alleged arguing that there's been a change in the law that affects the disposition of my case, right?

[00:16:08] Speaker 03:
It's day and night.

[00:16:11] Speaker 02:
Let me add in.

[00:16:13] Speaker 02:
And it's dispositive.

[00:16:15] Speaker 02:
I'm sorry?

[00:16:15] Speaker 02:
It's dispositive.

[00:16:17] Speaker 01:
It's dispositive as alleged, but when you look at it, there's no jurisdiction.

[00:16:21] Speaker 01:
So in that regard, it's very similar to Haynes in that there's really nothing there once you take a look at it.

[00:16:28] Speaker 01:
So I do think that the legal reasoning in Haynes applies in that

[00:16:33] Speaker 03:
distinguishing it doesn't... Well, I understand that there's really nothing there.

[00:16:38] Speaker 03:
I mean, I thought your backup argument is if you decided we should construe the board having analyzed this and decided that we're not going to reopen because it's not exhausted.

[00:16:51] Speaker 03:
That's not nothing.

[00:16:52] Speaker 03:
That's analyzing it and giving a rationale, right?

[00:16:59] Speaker 01:
I would guess I was trying to distinguish between the claim of a change in law.

[00:17:04] Speaker 01:
It certainly sounds like an important issue that needs to be addressed.

[00:17:09] Speaker 01:
But when you look at it, it's a change of law, but there's this exhaustion issue that makes the issue not within the board's jurisdiction.

[00:17:19] Speaker 03:
Right.

[00:17:19] Speaker 03:
But it's hardly a nothing.

[00:17:20] Speaker 03:
It's hardly the kind of Hanes-like, just kind of completely baseless

[00:17:26] Speaker 03:
at charges of you got it wrong, let's reopen.

[00:17:29] Speaker 01:
Let's just put it this way.

[00:17:30] Speaker 01:
It's not pro forma.

[00:17:33] Speaker 01:
I agree, Your Honor.

[00:17:34] Speaker 01:
It's not pro forma.

[00:17:34] Speaker 01:
But I think once you look at it, you see that she's raising something.

[00:17:42] Speaker 01:
I'm sorry, the petitioner is raising a matter over which the board does not have jurisdiction in a motion to reopen.

[00:17:47] Speaker 01:
That's not what a motion reopen should be.

[00:17:52] Speaker 01:
You can't bring in a new matter in a motion to reopen.

[00:17:55] Speaker 03:
OK, well, they could have said that.

[00:17:57] Speaker 03:
And if they, you know, if they had said that, if they had analyzed this and said, yes, there's a change in law, but we don't, you know, we can't do it because there's this exhaustion requirement, etc., would you still be maintaining that we can't review that analysis?

[00:18:13] Speaker 01:
I would, Your Honor.

[00:18:14] Speaker 01:
I think under 7701, the Board has complete discretion whether to reopen a case or not, and that is not reviewable.

[00:18:25] Speaker 01:
I make the argument about 7701.

[00:18:29] Speaker 03:
What if he had had an allegation in the first instance?

[00:18:32] Speaker 03:
He made two allegations.

[00:18:34] Speaker 03:
One was there was a protected disclosure in the inspector general disclosures.

[00:18:39] Speaker 03:
And two, there was a protected disclosure in the legal memorandum.

[00:18:44] Speaker 03:
And the board had said in the first instance, no, no, no, that's not the law, correctly.

[00:18:48] Speaker 03:
The law doesn't require it.

[00:18:50] Speaker 03:
So that's the way they disposed of the second one.

[00:18:53] Speaker 03:
And then he comes back now and he says, you said the reason I lose on the fur, this one, is because the law does not compel it.

[00:19:01] Speaker 03:
But now there's been a change in the law, which everybody recognizes.

[00:19:05] Speaker 03:
Would the board not reopen under those circumstances?

[00:19:08] Speaker 01:
I think the board would reopen under those circumstances.

[00:19:10] Speaker 01:
But I also think if the board didn't, that the board has started to reopen on its own motion.

[00:19:18] Speaker 02:
That's an abusive discretion argument.

[00:19:21] Speaker 03:
nothing not completely unreviewable.

[00:19:23] Speaker 03:
So the board could say even if he were absolutely positively correct and it would be arguably cases positive.

[00:19:29] Speaker 03:
I agree with you that we don't know how that case is going to turn, but it's a different case and it's a stronger case than the one he had earlier.

[00:19:37] Speaker 03:
You think he couldn't get review?

[00:19:39] Speaker 01:
Yes, Your Honor.

[00:19:41] Speaker 01:
I think 7701 gives the board authority to reopen and reconsider a case on its own most

[00:19:47] Speaker 03:
Right, but it doesn't say and it doesn't deal with the circumstance where somebody comes in with a completely non-frivolous, non-proforma motion to reopen.

[00:19:58] Speaker 03:
It doesn't say they can dispose of those and it's completely unreviewable.

[00:20:03] Speaker 01:
But it doesn't say that the board's decision on its own motion is reviewable.

[00:20:09] Speaker 03:
The court has never... Isn't the assumption that we get to review what the board and everybody else under us get to do it in the absence of clear and unmistakable language by Congress that says this is unreviewable, it's unappealable, complete and sole unreviewable discretion by the MSPB?

[00:20:29] Speaker 03:
Don't we get to review that stuff without them saying it?

[00:20:32] Speaker 01:
Well, for instance, the board does not review petitions for review on its own motion.

[00:20:36] Speaker 01:
It's required to issue a decision on those

[00:20:39] Speaker 01:
issues on those types of cases.

[00:20:42] Speaker 01:
But here, it's a motion to reopen committed to the board to reopen on its own motion.

[00:20:49] Speaker 03:
Yeah, but we're not dealing with that circumstances.

[00:20:51] Speaker 03:
We're dealing with circumstances where it's not the board hasn't here decided, should we reopen or should we not reopen?

[00:20:58] Speaker 03:
There's a motion pending before them.

[00:21:00] Speaker 02:
Supposing the board, the clerk sent a letter saying, we don't like your gender.

[00:21:10] Speaker 02:
So we're not going to do it.

[00:21:11] Speaker 02:
We can't review that?

[00:21:14] Speaker 01:
Well, Your Honor, I think if a letter like that went out, it would pretty quickly be recalled by the board and dealt with.

[00:21:21] Speaker 01:
However, I still maintain.

[00:21:24] Speaker 01:
But they did.

[00:21:25] Speaker 01:
This is hypothetical.

[00:21:27] Speaker 01:
Yes, Your Honor.

[00:21:28] Speaker 01:
I still maintain.

[00:21:29] Speaker 02:
You can't review that?

[00:21:31] Speaker 02:
Yes, Your Honor, you cannot review that.

[00:21:34] Speaker 02:
You're way past your argument.

[00:21:38] Speaker 02:
You're outside of a balance.

[00:21:41] Speaker 01:
The court has no additional questions.

[00:21:44] Speaker 03:
Are you familiar with the case call?

[00:21:46] Speaker 03:
It's a 2010 Supreme Court case.

[00:21:49] Speaker 03:
I don't know how to pronounce it.

[00:21:50] Speaker 03:
Kukana versus Holder.

[00:21:53] Speaker 03:
It dealt with BIA decisions.

[00:21:55] Speaker 01:
I remember a couple of BIA cases that I did read, Your Honor.

[00:22:01] Speaker 03:
And in that case, the Supreme Court, and you can tell me if you disagree, but my understanding of that case is the Supreme Court said BIA decisions on motions to reopen are reviewable.

[00:22:11] Speaker 03:
but Sue Espante decisions are not reviewable.

[00:22:14] Speaker 03:
So it drew a distinction between the Sue Espante and the motions.

[00:22:19] Speaker 03:
Why shouldn't that principle apply here?

[00:22:21] Speaker 01:
Well, Your Honor, my argument is based on 7701, the specific language that grants the board authority to reopen on its own motion.

[00:22:31] Speaker 03:
Are you familiar with the case and what authority the BIA had?

[00:22:36] Speaker 01:
Your Honor, I'm not prepared to speak to it.

[00:22:38] Speaker 01:
I apologize.

[00:22:41] Speaker 01:
Thank you.

[00:22:44] Speaker 03:
Thank you.

[00:22:47] Speaker 00:
Your Honor, I'd like to speak to his first point that there would be different things to review and that the agency and the board could have different evidence if this case were brought anew with the disclosures in the legal memoranda.

[00:23:01] Speaker 00:
And I'd like to say that that actually is not the case.

[00:23:04] Speaker 00:
The legal memoranda were not only put before the OSC, but this court

[00:23:08] Speaker 00:
And the board considered them because Mr. McCarthy argued that he couldn't be fired based on disclosures which then later became protected.

[00:23:17] Speaker 00:
And this court ruled on that.

[00:23:19] Speaker 00:
So those memos have been in this litigation all along.

[00:23:24] Speaker 00:
And as I said before, the board in this court ruled that McCarthy was fired based on what are now protected disclosures.

[00:23:33] Speaker 00:
The only remaining issues would be, one, are those particular disclosures in the legal memoranda protected?

[00:23:41] Speaker 00:
This court can decide that on the record.

[00:23:44] Speaker 00:
We cited a case in our brief, Drake versus Agency for International Development, where the court said, well, based on the record before us, we can decide that that's protected, regardless of the fact that it wasn't decided below.

[00:23:57] Speaker 00:
The remaining issues are, were the legal memos a contributing factor to the decision to fire?

[00:24:04] Speaker 00:
And can the board prove by clear and convincing evidence that it would have fired McCarthy without the legal memos?

[00:24:12] Speaker 00:
And both of those, it's a logical impossibility to decide them any other way than in favor of Mr. McCarthy, because the firing was explicitly predicated on those legal memoranda, not only in the letter,

[00:24:26] Speaker 00:
that dismissed Mr. McCarthy, but in Mr. Ruth's testimony, in the board's decision, and in this court's decision, all of them decided that he was fired based on those legal memorandas.

[00:24:37] Speaker 00:
So there really is no reason to go back and start over.

[00:24:42] Speaker 03:
Isn't it, hypothetically, is it not conceivable?

[00:24:46] Speaker 03:
I mean, you end like this is a two-step, and maybe it is, and maybe it isn't.

[00:24:51] Speaker 03:
But a case could hypothetically be much more complicated, right?

[00:24:56] Speaker 03:
Because even if someone does legal memorandum and they reflect or they include inappropriate suggestions, they disclose confidential information.

[00:25:08] Speaker 03:
They were done on work time and they really didn't implicate any work.

[00:25:12] Speaker 03:
There are circumstances in which a discharge based on either the content of the existence of the legal memorandum would be justified, notwithstanding that globally you call them protected disclosures.

[00:25:25] Speaker 03:
Isn't that the case, at least hypothetically?

[00:25:27] Speaker 00:
Yes.

[00:25:28] Speaker 00:
In that hypothetical, it is the case.

[00:25:30] Speaker 00:
But in this case, it is not because Commissioner Ruth has already testified.

[00:25:35] Speaker 00:
The record has already been created.

[00:25:37] Speaker 00:
He didn't claim any of those things.

[00:25:39] Speaker 00:
What he claimed was that the memos were contentious, divisive, and incorrect.

[00:25:44] Speaker 00:
And this court in the Greenspan decision said that that's not enough to take something out of protected disclosures.

[00:25:50] Speaker 00:
I mean, imagine what a huge loophole that would be in the whistleblower law if somebody received a protected disclosure and could say, oh, I don't agree with that.

[00:25:57] Speaker 00:
I don't think it's correct.

[00:25:57] Speaker 00:
And I think you're being contentious and divisive, and therefore it's not protected.

[00:26:02] Speaker 00:
That won't work.

[00:26:04] Speaker 00:
Those other things.

[00:26:05] Speaker 00:
were not claimed.

[00:26:06] Speaker 00:
And we can't have Mr. Ruth come back and then try to change his testimony and try to change the reasoning as to why he really fired McCarthy to try to fit the new law.

[00:26:16] Speaker 00:
That would not be acceptable.

[00:26:17] Speaker 00:
It would not be credible.

[00:26:18] Speaker 02:
Ms.

[00:26:19] Speaker 02:
Dinnerstein, you were going to give us a citation to authority.

[00:26:25] Speaker 00:
Yeah, I was trying to find a case.

[00:26:27] Speaker 00:
There is a case, and I'm sorry, I haven't found it yet, in which the board

[00:26:35] Speaker 00:
Because of an intervening decision, and it is in my brief.

[00:26:39] Speaker 00:
I'm sorry.

[00:26:40] Speaker 00:
Because of an intervening decision which then decided that a particular law was retroactive, they decided that then a case could be reopened.

[00:26:48] Speaker 02:
You really ought to know the name of your citation.

[00:26:50] Speaker 00:
OK.

[00:26:51] Speaker 00:
I'm sorry about that.

[00:26:53] Speaker 00:
And I will submit it to you if you like.

[00:26:56] Speaker 00:
But the point is that McCarthy didn't have to push the envelope to say,

[00:27:05] Speaker 00:
It's retroactive.

[00:27:06] Speaker 00:
The board did that, and then he came back.

[00:27:09] Speaker 03:
Thank you.

[00:27:10] Speaker 03:
Thank both counsel and the case assistant.