[00:00:00] Speaker 00:
Okay.

[00:00:26] Speaker 00:
Okay.

[00:00:28] Speaker ?:
All right.

[00:01:03] Speaker ?:
Okay.

[00:01:41] Speaker ?:
Thank you very much.

[00:02:13] Speaker 01:
All rise.

[00:02:21] Speaker ?:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:02:26] Speaker 04:
Guy stays in the United States as the honorable court.

[00:02:27] Speaker 04:
Good morning.

[00:02:28] Speaker 04:
Please be seated.

[00:02:31] Speaker 04:
Well, we're left with only one case for argument today.

[00:02:34] Speaker 04:
Others have waived their argument.

[00:02:36] Speaker 04:
The case is 15-3174 Johnson versus Navy.

[00:02:40] Speaker 04:
Mr. Boyd, whenever you're ready.

[00:02:44] Speaker 03:
Chief Judge, may it please the court?

[00:02:48] Speaker 03:
This is a case about a whistleblower and a short suspension, and one might wonder why all this trouble, why all this time?

[00:02:57] Speaker 03:
Mary's Sisters Protection Board Special Counsel, my colleagues, me, you, over a three-day suspension.

[00:03:06] Speaker 02:
You say in your brief that depending on the factual basis,

[00:03:13] Speaker 02:
notoriously disgraceful conduct can lead to disbarment.

[00:03:17] Speaker 02:
But what does that assertion mean, other than that some facts might involve disbarment?

[00:03:25] Speaker 02:
I mean, things that aren't equated with notoriously disgraceful conduct can lead to disbarment.

[00:03:31] Speaker 03:
They could, of course.

[00:03:34] Speaker 03:
And I'm not suggesting that my client's going to be disbarred because of an event in 2010.

[00:03:38] Speaker 03:
No.

[00:03:40] Speaker 03:
But the stigma of this, this is a lawyer.

[00:03:43] Speaker 03:
This is a government lawyer.

[00:03:47] Speaker 03:
And charges like this should not be likely made.

[00:03:50] Speaker 02:
What bothers me about this is the word notoriously.

[00:03:56] Speaker 02:
If the reprimand and the suspension had been for impropriety or lots of things, if it had been phrased differently, I wouldn't be bothered by it in the slightest.

[00:04:15] Speaker 02:
There are arguments, factual arguments, back and forth both ways.

[00:04:19] Speaker 02:
But it was at the least unwise on the part of your client to participate in the manner in which she did.

[00:04:31] Speaker 02:
But the notoriously disgraceful description seems so vague to me.

[00:04:41] Speaker 02:
And it seems to lend itself to such a broad spectrum that I'm disturbed by it.

[00:04:46] Speaker 03:
That's why we're here, Your Honor.

[00:04:49] Speaker 03:
If this were a case of jaywalking and a three-day suspension, it wouldn't be here.

[00:04:54] Speaker 03:
But this is a label because a suspension is a permanent record.

[00:04:58] Speaker 03:
It doesn't go away like a reprimand does after two years or so.

[00:05:02] Speaker 03:
It's in our personnel file.

[00:05:03] Speaker 03:
It carries a label.

[00:05:05] Speaker 03:
People reading the personnel file

[00:05:09] Speaker 03:
take a look at the suspension and the reason given for it.

[00:05:12] Speaker 03:
They don't spend 20 hours trying to analyze how this all came about.

[00:05:15] Speaker 00:
But is it our job to critique the choice of label?

[00:05:21] Speaker 00:
She did engage in a certain kind of conduct which was decided to be wrong, reprehensible.

[00:05:30] Speaker 00:
She was given a fairly minor penalty and so

[00:05:36] Speaker 00:
Is it for us to say, well, there must have been other labels that could have led to a three-day suspension, and you used the wrong label?

[00:05:45] Speaker 03:
No, Your Honor, and that's exactly the point of distinction between our approach, the government, and the board.

[00:05:54] Speaker 03:
We're not asking the board in a whistleblower reprisal case to determine what is the appropriate label.

[00:06:03] Speaker 03:
This case started out

[00:06:05] Speaker 03:
we found out through discovery, with a label of unbecoming conduct, a much more general, much more benign label.

[00:06:13] Speaker 03:
For whatever reason, the Navy chose, at the point of issuance of a decision, to bump it up to notoriously disgraceful.

[00:06:21] Speaker 03:
What we've argued to the board is that that is a suggestion of overreaching.

[00:06:28] Speaker 03:
And the board's law opposed that argument in the Ayers case and the one before that, I think the Madison case.

[00:06:35] Speaker 03:
If the agency overcharges conduct, it can be suggestive of an inappropriate motive.

[00:06:42] Speaker 03:
Here, whistle-blowing reprisal.

[00:06:45] Speaker 04:
But we're looking at what they did, and they suspended her for three days.

[00:06:50] Speaker 04:
Yes.

[00:06:50] Speaker 04:
Right?

[00:06:51] Speaker 04:
That's correct.

[00:06:52] Speaker 04:
So aren't we looking at whether or not that's a suspension under the standards of CAR, the strength of the evidence to support

[00:07:02] Speaker 04:
action taken by the agency?

[00:07:04] Speaker 03:
Yes, Your Honor.

[00:07:04] Speaker 03:
Chief Judge, if you divorce the conduct as described in the specifications from the label on the charge, your approach is correct.

[00:07:16] Speaker 03:
But that's not the way civil service law works.

[00:07:20] Speaker 03:
In civil service law, you have a specification that supports a charge.

[00:07:26] Speaker 03:
In a normal case, I speak now of an adverse action.

[00:07:30] Speaker 03:
the Merit Citizens Protection Board looks to see if the agency sustains the charge through proof of the specifications and the conduct described.

[00:07:40] Speaker 03:
That's why the label is so important in normal civil service laws.

[00:07:44] Speaker 03:
And in Whistler law, the nature of the action is still, it's called an adverse action even though it's a minor suspension.

[00:07:55] Speaker 03:
And the law requires that when a minor suspension is issued,

[00:07:58] Speaker 03:
that the agency state the reasons for the action, give the employee due process rights to respond, and then in the decision state the reasons upon which the agency relies.

[00:08:12] Speaker 03:
The reasons are not necessarily the same as the facts or the circumstances.

[00:08:17] Speaker 03:
The reason for the suspension is notoriously disgraceful conduct.

[00:08:23] Speaker 04:
Which is then discussed at length.

[00:08:25] Speaker 04:
I mean, we know the conduct we're talking about.

[00:08:27] Speaker 04:
There was an investigation done.

[00:08:29] Speaker 04:
People were questioned.

[00:08:30] Speaker 04:
And we know, and the agency has outlined with great specificity, what it's talking about in terms of what the offensive, egregious conduct was here.

[00:08:41] Speaker 04:
So you're saying, if the label weren't here, would we not be here?

[00:08:46] Speaker 03:
I would say that's probably true.

[00:08:47] Speaker 03:
The label is extremely important.

[00:08:51] Speaker 03:
It is not a minor point.

[00:08:53] Speaker 03:
This lady goes for the rest of her federal career labeled as an employee who received a suspension for otherwise undefined notoriously disgraceful conduct.

[00:09:02] Speaker 02:
What you're saying, if I'm correct, is that the label itself is a form of punishment.

[00:09:08] Speaker 03:
It is.

[00:09:09] Speaker 03:
And that's why in the Ayers case and the Madison case before it, the board said when the agency cannot shore up the charges that it makes against the employee in a Wissebauer case,

[00:09:22] Speaker 03:
It's a sign of overreaching, and overreaching goes to the question of reprisal.

[00:09:28] Speaker 03:
And the board did not address this.

[00:09:30] Speaker 03:
Unfortunately, what the board did was mischaracterize our argument by saying that we were somehow arguing that the prohibited personnel practice was in converting the charge from unbecoming conduct, which we found about in discovery, to notoriously disgraceful conduct, and we should have gone back to the Office of Special Counsel.

[00:09:52] Speaker 03:
That's an extraordinary statement.

[00:09:55] Speaker 03:
The board didn't offer any support for it, of course.

[00:09:57] Speaker 03:
But you don't go back to the Office of Special Counsel dealing with something you discover relating to the nature of the charging process that leads to an inference of reprisal.

[00:10:06] Speaker 03:
That's the board's obligation to resolve.

[00:10:09] Speaker 04:
And the... I don't understand.

[00:10:10] Speaker 04:
I mean, maybe I'm missing something about how things were done.

[00:10:12] Speaker 04:
I don't understand the argument you're making.

[00:10:14] Speaker 04:
When you went to the Office of Special Counsel, now I think you're telling us that in the absence of this phrase,

[00:10:23] Speaker 04:
you would not be contending that there was improper reprisal here based on whistleblowing.

[00:10:28] Speaker 04:
So it's the phrase that is the issue that you say that demonstrates that's the reprisal aspect.

[00:10:34] Speaker 04:
Did you raise that with the special counsel?

[00:10:37] Speaker 03:
Your Honor, if I understand your question, did we raise whether or not the case would have been brought to the special counsel, had a different label been placed on it?

[00:10:46] Speaker 03:
If that's your question, the answer is no.

[00:10:47] Speaker 03:
And there's no need to.

[00:10:48] Speaker 03:
No, no, no.

[00:10:49] Speaker 04:
My question is, did you raise with the special counsel

[00:10:52] Speaker 04:
that the so-called reprisal here, I thought you had said to me earlier, if we were talking about a three-day suspension that was labeled something else, we would not be here.

[00:11:02] Speaker 04:
We are here because they use the phrase notoriously, whatever.

[00:11:08] Speaker 04:
So that's the basis for your alleging that this was retaliatory.

[00:11:12] Speaker 03:
Your Honor, no.

[00:11:13] Speaker 04:
And if so, did you raise that issue with the special counsel?

[00:11:17] Speaker 03:
No.

[00:11:17] Speaker 03:
Your Honor, what you raise with the special counsel is the personnel action.

[00:11:22] Speaker 03:
That's the suspension.

[00:11:25] Speaker 03:
That is what is the prohibited personnel practice.

[00:11:27] Speaker 03:
It's the suspension.

[00:11:29] Speaker 03:
Now, why the suspension was taken, the motivation for the suspension, whether the agency has clear and convincing evidence to support the suspension here for notoriously disgraceful conduct, is a matter that you mitigate.

[00:11:40] Speaker 03:
The special counsel exams it, then it goes to the Merit Systems Protection Board.

[00:11:44] Speaker 03:
All you raise with the special counsel is the action.

[00:11:47] Speaker 04:
In my opening statement, I said- What action?

[00:11:50] Speaker 04:
When you say the actions, you say it doesn't matter.

[00:11:52] Speaker 04:
The label doesn't matter with respect to the special counsel.

[00:11:54] Speaker 04:
What matters is that they suspended her for three days.

[00:11:58] Speaker 04:
That's correct.

[00:11:59] Speaker 04:
But now you're telling us here that the suspension for three days would not have been something you would have appealed.

[00:12:05] Speaker 04:
It was really the gravamen of the harm to her and also the basis for your being able to argue that this was retaliatory was the use of this phrase.

[00:12:16] Speaker 04:
Right?

[00:12:17] Speaker 04:
I mean, that's what I understood you to be saying.

[00:12:18] Speaker 03:
No, and I'm sorry if I haven't made myself clear.

[00:12:21] Speaker 03:
The action of suspending Mrs. Johnson could have probably was retaliatory no matter how it was labeled.

[00:12:29] Speaker 03:
Had it been labeled unbecoming conduct, it would have been no less retaliatory.

[00:12:35] Speaker 03:
The reason it's here, given the fact that it's a short suspension and all these resources, why is this so important to her, is not

[00:12:44] Speaker 03:
a suspension of three days for, I use the example of jaywalking.

[00:12:49] Speaker 03:
That's not why we're here.

[00:12:50] Speaker 03:
The reason is because of the stigma.

[00:12:53] Speaker 04:
But I think we're just talking past each other.

[00:12:57] Speaker 04:
Putting aside the motivation for why she's deciding to appeal this and go so far, that's not an issue that I'm questioning here.

[00:13:05] Speaker 04:
We're talking about what the allegation is of retaliatory conduct.

[00:13:12] Speaker 04:
If this label weren't put on there, and she had been suspended for three days based on the specificity of the conduct alleged, would you be here?

[00:13:24] Speaker 04:
I don't know.

[00:13:25] Speaker 04:
That's a tough question.

[00:13:26] Speaker 04:
Well, if you're not sure that absent the label, if you think that it may be that it's the label that demonstrates retaliation, and that's the grabment of your complaint of retaliation, then I suggest that that should have been

[00:13:42] Speaker 04:
put before the special counsel.

[00:13:44] Speaker 03:
That is one factor.

[00:13:48] Speaker 03:
The action itself would have still been retaliatory, whether the enormous investment of resources would have been made.

[00:13:53] Speaker 02:
You're telling us, though, that you could not raise the label before the special counsel.

[00:14:00] Speaker 02:
No.

[00:14:01] Speaker 02:
That's the first question I'm going to ask you, opposing counsel.

[00:14:03] Speaker 03:
That's correct.

[00:14:04] Speaker 03:
You can't go to the special counsel on a label.

[00:14:08] Speaker 03:
Personnel practice is defined in 5 U.S.C.

[00:14:10] Speaker 03:
2302b.

[00:14:12] Speaker 03:
And it doesn't include labels.

[00:14:14] Speaker 04:
So why does it include labels here?

[00:14:16] Speaker 04:
Why do you get to argue to us that the label is the basis for retaliation, where you say you couldn't argue it there, and the rules are different?

[00:14:24] Speaker 03:
It is a question of how you determine whether or not the agency has met its clear and convincing evidence that it would have taken the action.

[00:14:33] Speaker 03:
It's a question of overreach.

[00:14:35] Speaker 03:
If the agency goes so far to charge a government lawyer with notoriously disgraceful conduct, and they can't prove it,

[00:14:43] Speaker 03:
or the board doesn't find that they proved it because perhaps the board didn't properly analyze it, that is a factor that goes into the analysis of the strength of the agency's case.

[00:14:53] Speaker 03:
If the agency can't prove the charge that it made, then under Carr and Geier, going way back.

[00:15:02] Speaker 04:
So I'm not going to press this much further.

[00:15:05] Speaker 04:
I'm going to ask you one question.

[00:15:08] Speaker 04:
Us versus the special counsel, and Judge Wallach has already indicated he's going to ask the government.

[00:15:14] Speaker 04:
If you have a basis for charging retaliation, if that's the basis that you're alleging retaliation here before us, how can it be that that's nothing that you would put before the special counsel?

[00:15:27] Speaker 04:
I assume the answer is because the special counsel, an action for retaliation and whistleblowing is based on the personnel action that was taken.

[00:15:38] Speaker 04:
Either that personnel action is a three-day suspension, or that personnel action is the title you put on the

[00:15:44] Speaker 04:
conduct, whatever it is, it should have been the same in terms of the allegations you made to the special counsel and the allegations you made here.

[00:15:52] Speaker 03:
There's no difference.

[00:15:54] Speaker 03:
There's a difference in our argument.

[00:15:57] Speaker 03:
The action that was placed before the special counsel was a suspension of three days for notoriously disgraceful conduct.

[00:16:05] Speaker 03:
And we provided to the special counsel our arguments as to why there was no notoriously disgraceful conduct and why

[00:16:13] Speaker 03:
Under the factors of this case, which all started out with Ms.

[00:16:16] Speaker 03:
Johnson complaining about what she felt was bullying by a contracting lawster at the San Diego Naval Office, how this all got started.

[00:16:24] Speaker 03:
So you don't go to the special counsel and argue, or I wouldn't, special counsel doesn't have jurisdiction to deal with the characterization of the charge.

[00:16:33] Speaker 03:
They have jurisdiction to deal with the suspension.

[00:16:37] Speaker 03:
Under Carr and Geier, under the comments in the congressional history,

[00:16:41] Speaker 03:
to the Whistler Protection Act in 1989, you take a look at elements that would suggest retaliatory motivation.

[00:16:49] Speaker 03:
Overcharging is one.

[00:16:50] Speaker 03:
Now, that's about to get into my rebuttal time, but that's just one third of our arguments here.

[00:16:57] Speaker 03:
The arguments have been briefed.

[00:16:58] Speaker 03:
If you have further questions about this, I'll be happy to respond.

[00:17:02] Speaker 03:
Why don't we hear from the other side now?

[00:17:03] Speaker 03:
Yes, ma'am.

[00:17:04] Speaker 04:
Thank you.

[00:17:04] Speaker 04:
We'll restore two minutes of rebuttal.

[00:17:15] Speaker 02:
So you know my first question already.

[00:17:20] Speaker 01:
Your Honor, if you could restate it for me, it would be helpful.

[00:17:24] Speaker 02:
Could Ms.

[00:17:25] Speaker 02:
Johnson have raised the propriety of charging her with notoriously disgraceful conduct before the special counsel, as opposed to conduct unbecoming?

[00:17:40] Speaker 01:
Well, Your Honor, I think this exhaustion issue has been a little bit unclear.

[00:17:50] Speaker 01:
I think what the board understood it to be is a concern that... You're not answering my question.

[00:18:00] Speaker 01:
I'm sorry.

[00:18:02] Speaker 01:
Could they have raised it in front of the Office of Special Counsel?

[00:18:05] Speaker 01:
I believe

[00:18:06] Speaker 01:
They could, and I think they did in the sense of saying, we think this action, which had a specific title, was retaliation.

[00:18:16] Speaker 01:
However, we are not involved in that process.

[00:18:20] Speaker 01:
The documents that were in front of the Office of Special Counsel are not part of the record.

[00:18:26] Speaker 01:
We have one document in the record that shows them deciding to close the case.

[00:18:31] Speaker 02:
What's the difference between notoriously disgraceful and conduct unbecoming?

[00:18:37] Speaker 01:
Well, they are not defined in the table of penalties.

[00:18:43] Speaker 01:
I believe the agency chose notoriously disgraceful conduct because there was this element of the conduct that... When you say they're not defined, does that make them vague?

[00:18:56] Speaker 01:
I don't think so, Your Honor, because I think those words have different meanings.

[00:19:00] Speaker 02:
So what's notoriously disgraceful conduct as opposed to?

[00:19:03] Speaker 01:
I think the key is that it was well-known in the agency, that it was conduct that was undesirable, but it also had this quality of being well-known.

[00:19:12] Speaker 01:
And we described some of the... Why was it well-known?

[00:19:18] Speaker 02:
I think because it was... Did Miss Johnson tell everyone about it?

[00:19:20] Speaker 01:
No.

[00:19:21] Speaker 01:
I believe because the intern came back so shaken from this event and went in and spoke to her boss, and she had also spoken to a colleague first because she had been told not to tell anyone about this interview.

[00:19:34] Speaker 01:
So she's talked to a colleague first who encouraged her to talk to her boss.

[00:19:38] Speaker 00:
What is the range of penalties for notoriously disgraceful conduct?

[00:19:43] Speaker 01:
The range, I think, it goes up to removal.

[00:19:46] Speaker 00:
Yes, but what is the lower?

[00:19:48] Speaker 01:
The lower end.

[00:19:49] Speaker 00:
I think it must go down to a suspension of three days or even less, perhaps.

[00:20:02] Speaker 01:
Yeah, I think it may go down to reprimand.

[00:20:04] Speaker 01:
I actually have it in my briefcase, but I don't have it right here at the podium.

[00:20:07] Speaker 00:
In other words, three days was within that range

[00:20:15] Speaker 00:
A penalty for notoriously disgraceful conduct included something as relatively minor as the three-day suspension.

[00:20:25] Speaker 02:
Yes.

[00:20:26] Speaker 02:
What's the penalty for conduct and becoming?

[00:20:33] Speaker 01:
I do not have that.

[00:20:38] Speaker 01:
I don't know that off the top of my head, but I do have the chart in my briefcase, Your Honor.

[00:20:42] Speaker 00:
Briefcase doesn't help at all.

[00:20:45] Speaker 01:
I'm sorry, Your Honor.

[00:20:46] Speaker 01:
Well, is this a matter of public record?

[00:20:49] Speaker 04:
Does the agency publish in its rules or whatever the kinds of conduct and the range of penalties associated with that conduct?

[00:20:57] Speaker 04:
Is that just in the record somewhere?

[00:20:59] Speaker 01:
I'm not aware of that, but I don't think I know.

[00:21:02] Speaker 01:
My understanding is no.

[00:21:05] Speaker 04:
But it exists.

[00:21:06] Speaker 04:
What does it exist as?

[00:21:07] Speaker 04:
An agency policy statement?

[00:21:14] Speaker 00:
Well, there must be a regulation, and I guess you answered the question earlier, that for notoriously disgraceful conduct, a conduct unbecoming, or anything else, there are ranges.

[00:21:27] Speaker 01:
Yes.

[00:21:27] Speaker 00:
There are specified ranges.

[00:21:29] Speaker 01:
That's correct, Your Honor.

[00:21:32] Speaker 02:
Don't you find it troubling that an employee

[00:21:41] Speaker 02:
a civil service employee of the United States can be charged with misconduct that's so vague that you can't describe it?

[00:21:53] Speaker 01:
Well, I think we can describe it, Your Honor.

[00:21:54] Speaker 01:
I mean, I think those words have plain meanings.

[00:21:57] Speaker 01:
And as I said... Sure.

[00:21:58] Speaker 02:
Notoriously disgraceful conduct means to me jumping in the fountain in front of the Capitol with an Argentine stripper.

[00:22:07] Speaker 02:
That's notoriously disgraceful conduct.

[00:22:11] Speaker 01:
Well, Your Honor, this conduct was fairly unusual.

[00:22:14] Speaker 01:
I understand what the court is feeling, but the record reflects that this incident was quite extraordinary.

[00:22:21] Speaker 01:
The intern described feeling very intimidated during the interview and frightened.

[00:22:26] Speaker 02:
Clearly unlawyerly.

[00:22:27] Speaker 01:
Clearly.

[00:22:28] Speaker 01:
She perceived Miss Johnson as trying to get her to admit that Mr. Browley was abusive, although she felt this was untrue.

[00:22:35] Speaker 01:
She said the questioning made her feel dirty, and she felt trapped throughout the interview.

[00:22:40] Speaker 01:
She thought about jumping out of the car.

[00:22:43] Speaker 01:
She said in her statement, she describes that her heart was still beating fast from this experience when she returned to the office.

[00:22:49] Speaker 00:
Why did the Navy switch from conduct unbecoming to notoriously disgraceful?

[00:22:55] Speaker 01:
My understanding is that they felt it described the circumstances better because this had become so well known in the office and that that was becoming a problem.

[00:23:07] Speaker 01:
When she was contacted the day after this event, Ms.

[00:23:11] Speaker 01:
Amster, Ms.

[00:23:12] Speaker 01:
Johnson's boss, had already heard office gossip about a kidnapping.

[00:23:16] Speaker 01:
Ms.

[00:23:17] Speaker 01:
Amster reported that a buyer and a contracting officer had asked her about the incident.

[00:23:23] Speaker 01:
So not just the employees, but other people beyond the scope of the employees had heard about this.

[00:23:31] Speaker 01:
And so I think they were trying to capture that aspect of this behavior in the charge.

[00:23:37] Speaker 04:
Can you just point me where is, I can't find it now in the appendix, the actual decision that refers to notoriously, the actual final decision.

[00:23:47] Speaker 01:
The final decision?

[00:23:48] Speaker 04:
I mean, is that where?

[00:23:48] Speaker 04:
I mean, I'm trying to figure out, in just all this paper I have in the appendix, the progress.

[00:23:54] Speaker 04:
Because first they charged you with five-day suspension or whatever.

[00:23:57] Speaker 04:
And I'm looking for those words.

[00:23:59] Speaker 01:
For the words where they?

[00:24:02] Speaker 04:
Call this notoriously.

[00:24:04] Speaker 01:
Oh, in the charge.

[00:24:07] Speaker 01:
Well, in the charge and in the decision.

[00:24:09] Speaker 01:
Yeah.

[00:24:09] Speaker 01:
The suspension proposal is at page 26 of the appendix.

[00:24:13] Speaker 04:
OK.

[00:24:17] Speaker 04:
And so we're just OK.

[00:24:20] Speaker 04:
I was just wondering if they had cited any regulation or whatever.

[00:24:26] Speaker 04:
And then the final decision, this was a no proposal.

[00:24:29] Speaker 04:
And the final decision is?

[00:24:37] Speaker 01:
The MSPB final decision?

[00:24:51] Speaker 01:
No, the agency's final decision.

[00:24:55] Speaker 01:
Looking at the appendix, I'm not sure that that made it into the appendix.

[00:25:02] Speaker 04:
Well, I have a final decision on the proposed five-day suspension, but then they changed it to three, so I'm not following where the...

[00:25:29] Speaker 04:
Well, never mind.

[00:25:30] Speaker 04:
I'm going to take your time.

[00:25:31] Speaker 04:
I just wanted to see the context in which that term was used.

[00:25:34] Speaker 01:
I'm sorry.

[00:25:35] Speaker 01:
Now, just to go back to this exhaustion issue, I think I said earlier that

[00:25:52] Speaker 01:
I believe this was all was and could have been and was presented to the Office of Special Counsel if the issue is just whether just that this charge was a retaliatory action.

[00:26:09] Speaker 01:
But to the extent that Mr. Johnson is really arguing that the fact that the agency started out with one charge and then edited their draft proposal

[00:26:22] Speaker 01:
which is what they learned about in discovery and what I think the board was talking about, was also a separate retaliatory action.

[00:26:32] Speaker 01:
I think that is what the board was addressing and saying, if they're making that argument, that would require a separate exhaustion process.

[00:26:43] Speaker 01:
And I think that's supported by the case law.

[00:26:45] Speaker 01:
I know Ms.

[00:26:45] Speaker 01:
Johnson has pointed to the Briley case in her papers to try to make the contrary argument.

[00:26:51] Speaker 01:
But I think that case actually supports the fact that exhaustion would be required for that claim because it refers to the Mintzmeier case, which distinguishes.

[00:27:02] Speaker 01:
And it says that in that case, they contrast that situation where you're bringing a separate claim of an action of retaliation and say you do have to exhaust in that case.

[00:27:19] Speaker 01:
with the Briley case where she's just filling in details about the actions for which she claimed she was retaliated against.

[00:27:26] Speaker 01:
So I think if that's what the board, I think if that's what Ms.

[00:27:31] Speaker 01:
Johnson is arguing, there is an exhaustion problem.

[00:27:40] Speaker 04:
If one were just listening to the discussion that's going on this morning, it seems to me

[00:27:47] Speaker 04:
it's possible that one could say, well, what's really at stake here, the issue, the charge of retaliation and the proof of the two is based on the use of these words, not that they took the three-day suspension action against her, but the fact that they used these words.

[00:28:04] Speaker 04:
And if they had used really horrible words, not these words, but something even worse to describe her action, then is it possible that one could say, well, the fact that they took a three-day suspension, okay, they can justify that perhaps on the conduct

[00:28:16] Speaker 04:
But the evidence of the retaliation here is based on the fact that the agency has used extreme words that they've never used in connection with any other suspension or adverse action.

[00:28:27] Speaker 04:
And that proves they really wanted to go after this person.

[00:28:30] Speaker 04:
Is that a legitimate case?

[00:28:31] Speaker 04:
Is there such a case that you've ever seen?

[00:28:35] Speaker 02:
Supposing they had said treasonous conduct.

[00:28:38] Speaker 01:
Well, I think the court is right earlier that the way that the court has said that this issue is supposed to be looked at in a whistleblower case is in the analysis that the court adopted in Carr.

[00:28:52] Speaker 01:
And so you do look at how the conduct matches with the charges in the sense of you look at the weight of the evidence.

[00:29:01] Speaker 01:
And if the charges were extreme, presumably the weight of the evidence wouldn't favor the agency in that case.

[00:29:07] Speaker 01:
But I don't think there's a separate analysis.

[00:29:09] Speaker 01:
I think any sort of suggestion that there's some sort of separate analysis or that the agency had to prove its charge is contrary to the analysis that this court has said applies in the Carr case.

[00:29:20] Speaker 02:
Are you familiar with the charge of petty treason?

[00:29:26] Speaker 01:
Not in detail, Your Honor, but I can imagine.

[00:29:31] Speaker 02:
Well, it's not treason against the state.

[00:29:35] Speaker 02:
It's treason against

[00:29:37] Speaker 02:
Someone lower than the state, for example, your agency.

[00:29:41] Speaker 02:
Although in the old days, it was treason against your parent, for example.

[00:29:48] Speaker 02:
So supposing they charged her with petty treason and suspended her for three days.

[00:29:54] Speaker 01:
I think in that case, this court has said that the car analysis would apply.

[00:29:59] Speaker 01:
And I don't think there's a problem with that.

[00:30:01] Speaker 01:
Because I think this weighing of the evidence that is supposed to be done

[00:30:06] Speaker 01:
can address that situation if the charge is too great.

[00:30:09] Speaker 01:
If the charge is too great, the evidence is not going to weigh in the agency's favor.

[00:30:14] Speaker 01:
I think if you have a situation where the agency has to prove its charge and it goes beyond the weighing of the evidence, that creates real problems in cases like this case in particular, where the board and the court does not have jurisdiction over the underlying personnel action.

[00:30:30] Speaker 01:
So you're creating a situation where

[00:30:34] Speaker 01:
agency would have to prove the charge in a case where the board and this court doesn't have jurisdiction over the charge.

[00:30:41] Speaker 01:
That seems very incongruous.

[00:30:44] Speaker 01:
So I think the CAR analysis does deal with the problem and I understand that the court is reacting to that language but I do think even so the conventional analysis deals with that by looking at the weight of the evidence and if the weight of the evidence doesn't support it that problem is going to be addressed and I think here

[00:31:04] Speaker 01:
the weight of the evidence was very clearly supportive of the charge.

[00:31:09] Speaker 01:
I've reviewed some of the reasons why this is notorious.

[00:31:14] Speaker 01:
I can go on with this description of what was so problematic about this conduct.

[00:31:21] Speaker 02:
You can take solace from the classic definition of adverse

[00:31:31] Speaker 02:
notorious and adverse, and it doesn't mean that everyone has to know about it, just the neighbors.

[00:31:39] Speaker 01:
Certainly, Your Honor, that's true.

[00:31:41] Speaker 01:
Maybe notorious doesn't require broad knowledge, but even if it did, I mean, the facts are in this case that a buyer and a contracting officer had asked Ms.

[00:31:52] Speaker 01:
Johnson's boss about the incident.

[00:31:55] Speaker 01:
So it was widely known

[00:31:58] Speaker 04:
Can I ask you, a lot of the briefing here seems to be on this maybe legal fight about whether or not you use CAR and that CAR is something different than what Mr. Breuder is advocating in terms of the analysis and the review.

[00:32:11] Speaker 04:
How does that make any difference, at least in the context of this case, in terms of what we have to evaluate, the strength of the agency's case, looking at everything they looked at?

[00:32:22] Speaker 04:
How would that be different than if we applied another standard or another

[00:32:27] Speaker 04:
and political.

[00:32:31] Speaker 01:
Well, as I understand it, what he is asking is that or saying is that the board should have looked at whether the agency proved its charge and that this court should consider that.

[00:32:44] Speaker 01:
And I think that is different than the CAR standard because I think that CAR looks at the weight of the evidence rather than coming to a final conclusion on the charge.

[00:32:52] Speaker 01:
And I think that's a problem.

[00:32:55] Speaker 01:
Both, because you have the agency having to handle an adverse, basically prove up a whole adverse action case in a whistleblower context.

[00:33:04] Speaker 01:
But it's also a problem, because there are going to be some cases where the board and this court don't have jurisdiction over the adverse action, because it's so small, like a three-day suspension.

[00:33:16] Speaker 01:
Certainly, that's true.

[00:33:16] Speaker 04:
I just don't understand.

[00:33:17] Speaker 04:
I'm trying to really envision what the distinction is between the application of the factor and car.

[00:33:23] Speaker 04:
and the regular review of the MSPB.

[00:33:25] Speaker 04:
If you're evaluating the strength of the evidence, that includes looking at whether or not the personnel action taken was supported.

[00:33:34] Speaker 04:
As a practical matter, can you just tell me in this case what the difference would be in terms of what we were looking at?

[00:33:43] Speaker 01:
My understanding, Your Honor, is it's a slightly

[00:33:46] Speaker 01:
Well tell me about this case.

[00:33:50] Speaker 04:
What question would we be asking in this case about these facts as opposed to applying the two standards?

[00:33:58] Speaker 01:
I don't think it would develop much differently because I think the agency's evidence is fairly clear but I think it may create a situation where the agency has to approach a case where as if it is

[00:34:15] Speaker 01:
defending the adverse action on the merits and it might be a more in-depth process.

[00:34:22] Speaker 01:
I think the weight of the evidence is a slightly more preliminary assessment and granted that's not I don't think made explicit in case law but it seems like that's what the court is doing in these cases.

[00:34:40] Speaker 01:
that it's not quite making a final determination on the merits of the adverse action.

[00:34:46] Speaker 04:
Anything further?

[00:34:53] Speaker 04:
Thank you.

[00:34:54] Speaker 01:
Thank you, Your Honor.

[00:34:59] Speaker 02:
Next time bring your briefcase.

[00:35:01] Speaker 01:
I'm sorry, Your Honor.

[00:35:04] Speaker 04:
Can you just take a minute to answer, if you have an answer to the last question I asked about what in your view would have been different in terms of how this case... Yes.

[00:35:14] Speaker 03:
It really goes to the heart of this case.

[00:35:17] Speaker 03:
This is a very important issue.

[00:35:19] Speaker 03:
There is no distinction.

[00:35:22] Speaker 03:
CAR, in terms of what the agency has to prove as part of the CAR analysis, CAR was not some

[00:35:31] Speaker 03:
real new statement of law.

[00:35:33] Speaker 03:
All Carr did was affirm or incorporate by reference.

[00:35:37] Speaker 04:
Okay, you're making your legal argument about why Carr should be as strong as the other one.

[00:35:41] Speaker 04:
My question is, you allege that they applied the wrong standard here, right?

[00:35:49] Speaker 04:
Or not?

[00:35:50] Speaker 03:
They did an incomplete analysis because they did not analyze the impact of failure to prove the charge, notoriously disgraceful conduct.

[00:35:59] Speaker 03:
That's an incomplete analysis.

[00:36:01] Speaker 03:
Under the Ayers case, the board has said that in a whistleblower case, if the agency overcharges, can't support his charges, that's a sign of overreach.

[00:36:10] Speaker 03:
That's one factor, only one factor.

[00:36:12] Speaker 03:
There are other factors that suggest whistleblowing and reprisal.

[00:36:15] Speaker 03:
That's the Ayers case.

[00:36:17] Speaker 03:
And that case had a predecessor.

[00:36:20] Speaker 03:
And if I may, if you will indulge me for just a moment, I take you back to 1989.

[00:36:29] Speaker 03:
when the Whistleblower Protection Act was before Congress.

[00:36:33] Speaker 03:
And the debate was on the floor of Congress.

[00:36:37] Speaker 03:
The act had been vetoed once by President Reagan.

[00:36:40] Speaker 03:
It was up again.

[00:36:42] Speaker 03:
And Congressman Sikorski, March 21, 1989, Congressional Record House side, page 5033, talked about the clearing convincing evidentiary standard, which is what we heard about.

[00:36:55] Speaker 03:
And he said that it's a very high standard approved for the government because,

[00:37:00] Speaker 03:
First of all, you don't get there unless the action is tainted.

[00:37:03] Speaker 03:
We've already agreed.

[00:37:04] Speaker 03:
Everybody agrees that this action was tainted.

[00:37:07] Speaker 03:
And secondly, the government holds all the cards, and here I'll quote a statement, including the drafting of the documents supporting the decision.

[00:37:16] Speaker 03:
The drafting of the documents supporting the decision.

[00:37:18] Speaker 03:
And that singularly important document is the proposal.

[00:37:22] Speaker 03:
The proposal is what the employee defends against.

[00:37:25] Speaker 03:
So what has occurred here is the agency holding the cards with a high standard proof has given a proposal stating that this individual, Miss Johnson, committed notoriously disgraceful conduct.

[00:37:36] Speaker 03:
And whether you want to talk about eminent domain or whether you want to talk about my clients who appear with some regularity in the newspapers, that's notorious.

[00:37:46] Speaker 04:
But the issue here, I'm sorry.

[00:37:47] Speaker 04:
I know we're way above time.

[00:37:48] Speaker 04:
I'll just ask one more time in one different way.

[00:37:52] Speaker 04:
Yes.

[00:37:53] Speaker 04:
When we are talking about whether the

[00:37:55] Speaker 04:
They've got a long list of what went down, who said what to who, and what happened.

[00:38:00] Speaker 04:
And if we conclude this is substantial evidence, under any standard or whatever, to support that that actually happened, you're saying that we also have to evaluate whether or not a label that's also contained in the letter is supported, right?

[00:38:17] Speaker 04:
I mean, that's got to be your case.

[00:38:19] Speaker 03:
It is my case.

[00:38:20] Speaker 04:
And is there anything, is there any case that supports that?

[00:38:24] Speaker 04:
Is there a case that says you... Something other than the basis for the personnel action and looking at the personnel action, which is a three-day suspension that we're really talking about?

[00:38:35] Speaker 03:
There is no board case, no federal circuit case of which I'm aware of, no case from its predecessor court that I'm aware of that has ever suggested that you can divorce a charge from the specification supporting the charge.

[00:38:50] Speaker 03:
You have to prove the charge.

[00:38:52] Speaker 03:
Now, you can give a very general charge.

[00:38:54] Speaker 03:
Conduct unbecoming is fine.

[00:38:57] Speaker 03:
And maybe that would have been applicable here.

[00:38:58] Speaker 03:
Maybe.

[00:38:59] Speaker 03:
I'm not conceding it, but it's possible.

[00:39:01] Speaker 03:
But the agency chooses the charge.

[00:39:03] Speaker 03:
You can't sever the charge in the specifications.

[00:39:06] Speaker 03:
The specifications support the charge.

[00:39:08] Speaker 03:
If you don't have a charge, you don't have a case against a federal employee.

[00:39:12] Speaker 03:
There has to be a charge.

[00:39:14] Speaker 03:
There has to be a reason that's given to the employee.

[00:39:17] Speaker 03:
The reason is called the charge.

[00:39:19] Speaker 03:
Now, does the board break it down like that?

[00:39:21] Speaker 03:
Does the Federal Circuit break it down like that?

[00:39:23] Speaker 03:
No, but that's the way it's, that's the way the law is practiced.

[00:39:26] Speaker 03:
We would cede at your time.

[00:39:29] Speaker 04:
Thank you.

[00:39:29] Speaker 04:
Then quote five as the case is submitted.

[00:39:31] Speaker 04:
Please, that proceedings.