[00:00:01] Speaker 03:
Next case for argument is 15-3200 Kerrigan versus MSPB.

[00:00:49] Speaker 03:
Mr. Margolis, whenever you're ready.

[00:00:50] Speaker 02:
Yes, thank you.

[00:00:52] Speaker 02:
Good morning.

[00:00:52] Speaker 02:
May it please the court.

[00:00:54] Speaker 02:
My name is Paul Margolis.

[00:00:55] Speaker 02:
I represent the petitioner, Philip Kerrigan.

[00:00:58] Speaker 02:
Mr. Kerrigan should be entitled to a remand of his retaliation action to the Merit Systems Protections Board.

[00:01:08] Speaker 02:
The IRA appeal, which was his basis of going to the MSPB, does not challenge and it does not depend on the merits

[00:01:18] Speaker 02:
of the underlying determination to terminate his benefits for failure to, to attend vocational rehabilitation training.

[00:01:27] Speaker 03:
Can I just switch gears a little?

[00:01:29] Speaker 03:
I understand that's the issue of the basis upon which the board decided this case, assuming for a moment that, um, I'm not persuaded by that.

[00:01:38] Speaker 03:
Can I just ask you a general question?

[00:01:39] Speaker 03:
Sure.

[00:01:40] Speaker 03:
If I'm just some citizen, not a federal employee and I live in Montana and I deal with social security,

[00:01:47] Speaker 03:
And I deal with the IRS because I file my taxes and I send letters to both of them complaining about how they've handled my proceedings.

[00:01:57] Speaker 03:
And then something happens.

[00:01:58] Speaker 03:
Do I get a whistleblower case against them?

[00:02:03] Speaker 02:
No, the whistleblower protection in this case

[00:02:07] Speaker 02:
relates to the fact that he had the, he was being administered benefits through the office worker compensation program.

[00:02:16] Speaker 02:
Um, you know, this is not an area that I normally practice in, but maybe I'm getting benefits under the social security app from the social security.

[00:02:24] Speaker 02:
I mean, it may be, there may be a similar proceeding for social security.

[00:02:28] Speaker 03:
You would define the scope of the whistleblower protection to any federal agency.

[00:02:35] Speaker 03:
that distributes benefits or has any benefit, that's their job, that any citizen who's not an employee of that agency or even any other federal agency can file a whistleblower.

[00:02:47] Speaker 03:
That is my understanding.

[00:02:48] Speaker 04:
The Whistleblower Protection Act specifically calls out employees or applicants, I think.

[00:02:58] Speaker 02:
That's right.

[00:02:58] Speaker 04:
And Mr. Kerrigan was a government employee.

[00:03:01] Speaker 04:
But not at the time of his disclosure.

[00:03:04] Speaker 04:
He was released, if I understand it, way back when in 1986 or whatever.

[00:03:10] Speaker 02:
Right.

[00:03:11] Speaker 02:
So Mr. Kerrigan suffered this severe back injury in the mid-80s where they removed part of his vertebrae and basically rendered him incapable of working.

[00:03:22] Speaker 02:
And then he began, since that injury occurred while he was working as a government employee, he was approved for benefits.

[00:03:29] Speaker 02:
And that continued without incident.

[00:03:31] Speaker 02:
So he's a beneficiary, but not an employee.

[00:03:33] Speaker 02:
Well, but he was an employee when he suffered the injury that led to the administration of his benefits.

[00:03:39] Speaker 01:
I'm sorry for interrupting.

[00:03:40] Speaker 01:
Was he an employee when he made his disclosure?

[00:03:45] Speaker 02:
He was a recipient of benefits because of his injury while as an employee.

[00:03:50] Speaker 04:
Right, but the recipient of benefits is not in the statute.

[00:03:54] Speaker 04:
That isn't one of the qualifying requirements of the statute.

[00:03:58] Speaker 04:
It's employee.

[00:03:59] Speaker 04:
in the case of applicant for employment.

[00:04:04] Speaker 03:
I would just add to what Judge Bryson said, it refers to personnel actions.

[00:04:09] Speaker 02:
But I believe that this court's opinion in Eunice, which sets forth the allegations that are required to make out a WPA claim, they don't speak to this issue.

[00:04:24] Speaker 02:
They don't require it.

[00:04:25] Speaker 04:
But Eunice was the case where Mr. Eunice, Dr. Eunice, I think it was,

[00:04:29] Speaker 04:
was in fact an employee of the VA.

[00:04:31] Speaker 04:
That's true.

[00:04:32] Speaker 04:
And all of our cases, with I think virtually no exceptions, have been cases in which the person was either an employee or an applicant for employment, understandably, because that's in the statute.

[00:04:44] Speaker 04:
It seems to me you're suggesting that someone, suppose I am in the position of Judge Prost's person who has a complaint with the Social Security Administration.

[00:04:59] Speaker 04:
It so happens that I was employed, let's say, by the government 40 years ago, having nothing to do with social security.

[00:05:07] Speaker 04:
I was an employee.

[00:05:10] Speaker 04:
Am I entitled to relief because I was an employee way back then?

[00:05:14] Speaker 04:
Or where somebody who was never employed by the federal government is not entitled to relief?

[00:05:20] Speaker 04:
I can't believe that's the way the statute works.

[00:05:22] Speaker 02:
Well, I don't actually think that that's a reasonable comparison to this case, Your Honor.

[00:05:26] Speaker 04:
Well, not in this case, but I want to know what the statute

[00:05:29] Speaker 04:
seems to require, because if the statute only requires that you at some point have been an employee of the government, then it's much broader than I've ever understood it to be.

[00:05:38] Speaker 04:
Well, I think that is the way that the statute is supposed to apply.

[00:05:42] Speaker 04:
So in my case, having worked one summer for the federal government, I now am in a different position with respect to whistleblowing from anyone else

[00:05:53] Speaker 04:
No matter what agency, whether my employing agency or some other agency, I complain about.

[00:05:58] Speaker 02:
No, no, your honor.

[00:05:59] Speaker 02:
Only if the benefits arise out of your government work.

[00:06:05] Speaker 02:
If you are, in this particular case, Mr. Kerrigan's injury occurred while it's a government employee, the reasoning that's being suggested would penalize him for the fact that he was injured.

[00:06:19] Speaker 02:
If he was a continual employee who had not had part of his spine removed,

[00:06:23] Speaker 02:
that he would be able to claim whistleblower protection.

[00:06:27] Speaker 02:
But because his injury, while working as a government employee, rendered him unable to work, then he would not be entitled to those protections.

[00:06:37] Speaker 03:
I'd like to try to articulate what you say the limitation would be to this broad scope.

[00:06:42] Speaker 03:
So if in connection with your federal employment you derive some benefits as a federal employee, then forever,

[00:06:53] Speaker 03:
that association gives you.

[00:06:54] Speaker 03:
Well, what about I earned Social Security?

[00:06:57] Speaker 03:
I worked for NASA 30 years ago, for a year.

[00:07:00] Speaker 03:
And when you calculate my Social Security benefits, there's some that we're talking about that time period is included.

[00:07:09] Speaker 03:
Is that enough of a nexus?

[00:07:10] Speaker 02:
I don't believe so, Your Honor.

[00:07:12] Speaker 02:
I think that you would have to, I think that the administration of the benefits would have to have a connection to your employment as a government employee.

[00:07:21] Speaker 03:
And in more hypothetical, I don't think that would be the case.

[00:07:24] Speaker 03:
Is there anything in the statute you can show us?

[00:07:27] Speaker 03:
Is that enough connection that comes under the rubric of being an employee, that comes under a personnel action?

[00:07:36] Speaker 02:
My understanding is that Section 2302 is talking about an agency taking a personnel action and that's exactly what happened here.

[00:07:47] Speaker 02:
The agency was taking an action against Mr. Kerrigan and the agency action related to the administration of his benefits for the injury that he incurred while working as a government employee.

[00:08:02] Speaker 02:
So it seems to me that the

[00:08:05] Speaker 02:
that sort of the idea that, as I mentioned before, the idea that's being discussed here would penalize Mr. Kerrigan for the fact that he was injured.

[00:08:13] Speaker 02:
So he would basically, the fact that his government employment rendered him unable to work would work to his detriment when ultimately he determines that the form that was used to deny his initial selection of physician was destroyed.

[00:08:31] Speaker 02:
And it would work against him despite the fact that

[00:08:34] Speaker 02:
The only reason he is a former employee is as a result of his government employment.

[00:08:39] Speaker 02:
So I would argue that it's far different than the situation of somebody who works for a year and then is getting Social Security later.

[00:08:47] Speaker 02:
There's a direct nexus here between his government employment, his work as a carpenter for the Department of Navy, and the injury, which is the reason that he obtained benefits.

[00:09:00] Speaker 04:
Can I turn you to a different issue that

[00:09:04] Speaker 04:
We still haven't gotten into the issue that I'm sure you spent most of your preparation time on.

[00:09:11] Speaker 04:
But assuming you win on that, there is still footnote two of the board's opinion, which deals with a much more common situation in which the claim that's made for whistleblowing does not show enough evidence, even at the jurisdictional stage, to justify

[00:09:33] Speaker 04:
going forward on the question of the nexus between the disclosure and the personnel action that was taken.

[00:09:42] Speaker 04:
Now focusing, as we must, not on the points you've made in your brief where you've gone through the documents and you found a document that has a date stamp on it that looked like it was the same date that something important in the events occurred.

[00:10:00] Speaker 04:
But just looking at the documents that were presented to the administrative judge and the board, which is what we have to limit ourselves to, what in those documents is sufficient to establish a non-frivolous allegation that the action was taken in retaliation for the disclosure?

[00:10:22] Speaker 02:
Right.

[00:10:23] Speaker 02:
So beyond the fact, I think you already mentioned that, so I'll talk about the form or the submission second.

[00:10:30] Speaker 02:
On page 190 and 190, one of the appendix, Mr. Kerrigan does set forth numerous persons who were aware of his allegations against the Department of Labor.

[00:10:45] Speaker 02:
And in addition, as we pointed out in the briefs, he does allege that he does detail the allegations of forgery and destruction of documents.

[00:10:58] Speaker 02:
explains that the CA-16 form was destroyed, he explains that he was referred to vocational immediately upon reporting those benefits, and then he states his belief that the fraud and abuse, and it's his belief because he doesn't know the inner workings of what goes on at the ECAB, but he explicitly states with his belief that the fraud and abuse resulted in the termination of that.

[00:11:22] Speaker 04:
Well, everyone says that that's their belief, but the question is,

[00:11:26] Speaker 04:
What evidence is there to support that belief?

[00:11:30] Speaker 04:
Is there even enough, really, to get over the non-frivolous?

[00:11:33] Speaker 04:
Because if we said, stating earnestly and with conviction, your belief that this was caused, then 100% of the cases would satisfy the non-frivolous allegation standard.

[00:11:44] Speaker 04:
That's not this potential.

[00:11:45] Speaker 02:
No, no.

[00:11:47] Speaker 02:
I agree with that, Your Honor.

[00:11:48] Speaker 02:
But here, the court has set up a test for this.

[00:11:51] Speaker 02:
It's a disinterested observer test.

[00:11:53] Speaker 02:
And Mr. Kerrigan's knowledge is imputed to that disinterested observer.

[00:11:59] Speaker 04:
And under the law of this case, his knowledge isn't attributed.

[00:12:02] Speaker 04:
He has to convey that knowledge to the board.

[00:12:05] Speaker 02:
Right.

[00:12:05] Speaker 02:
But here, there's no question that he did.

[00:12:07] Speaker 04:
Well, OK.

[00:12:08] Speaker 04:
What are the specific things that you think are the most telling pieces of evidence that he disclosed to the board that show a connection between the termination of his benefits, which occurred, I guess, in March of 2002?

[00:12:22] Speaker 04:
Correct.

[00:12:24] Speaker 04:
Uh, and his disclosures, which I guess were most, at least to the labor department were in the November 21st, 2001 letter.

[00:12:32] Speaker 02:
That's correct.

[00:12:33] Speaker 02:
Okay.

[00:12:34] Speaker 02:
So I, so I think when I sit down here for my rebuttal, I'll go through the appendix again so I can give you, you know, uh, some more specific page numbers, but he did allege throughout the process that the action was taken against him because he made the protective disclosures.

[00:12:51] Speaker 02:
And as I understand the law.

[00:12:53] Speaker 02:
the timing of it creates an inference of causation.

[00:12:57] Speaker 02:
And that's how, based on the case law that's cited in both parties briefs, I think the parties agree that in a short timeframe, there's an inference of causation.

[00:13:05] Speaker 03:
Well, I'm not sure timing is sufficient in and of itself.

[00:13:09] Speaker 03:
And I don't know.

[00:13:10] Speaker 03:
I mean, I guess it's one of the inferences you could draw, but there's another rationale to explain the timing.

[00:13:17] Speaker 03:
It's not like

[00:13:18] Speaker 03:
Nothing happened in 10 years.

[00:13:19] Speaker 03:
He never had any contact.

[00:13:21] Speaker 03:
And then suddenly, the week after he sends the letter, they do it.

[00:13:24] Speaker 03:
There are, if you look at the record and the various things that were going on, the medical exam in mid 2001, his request for whatever it is, that lump something.

[00:13:37] Speaker 03:
in, you know, shortly before the termination, clearly people were working on his paperwork in his case.

[00:13:44] Speaker 03:
So the fact that in December they come up and they said, you need to go to vote, facial rehabilitation, there's a perfectly reasonable explanation for that timing.

[00:13:52] Speaker 03:
Um, other than your explanation.

[00:13:54] Speaker 02:
Well, except I, I mean, I do think again, we're talking about a jurisdictional motion.

[00:13:59] Speaker 02:
We're effectively talking about a motion to dismiss standard.

[00:14:02] Speaker 02:
So Mr. Kerrigan is entitled to all inferences.

[00:14:05] Speaker 02:
And it certainly is reasonable that if you were not referred to vocational training within an eight-year dispute, and then the day the office receives your notice of allegations, they then refer you to vocational training.

[00:14:18] Speaker 02:
It seems reasonable that if you did not take that action in eight years, that there is causation.

[00:14:24] Speaker 04:
That's a point you put into your brief, but that was not made to the board.

[00:14:28] Speaker 04:
That point was, I mean, that would have been a point that I would have thought, hmm, that's interesting.

[00:14:35] Speaker 04:
Nothing.

[00:14:37] Speaker 04:
That document was buried, I have to say, in a 42-page addendum to a motion to seal.

[00:14:45] Speaker 04:
That's not putting it before the board in any meaningful way.

[00:14:50] Speaker 04:
You'd have to look at the motion to seal, pour through the 42 pages of quite irrelevant stuff, find that document, and then look down at the bottom and see that that document had a stamp on it, which

[00:15:05] Speaker 04:
Turns out to have been the same day that something in this progression of events, beating to his determination of his payments occurred.

[00:15:12] Speaker 02:
I do agree that the document is in there.

[00:15:19] Speaker 02:
And yes, it was not specifically called out in his motion.

[00:15:22] Speaker 02:
However, I think this court recently addressed this issue in Cahill that we need to be careful to not treat these pro se litigants through a hyper-technical lens.

[00:15:32] Speaker 02:
If they have presented

[00:15:34] Speaker 02:
the facts and the evidence, if the evidence is in the record from which a reasonable inference can be drawn, particularly on a jurisdictional motion.

[00:15:42] Speaker 02:
I mean, we're talking about notice pleading.

[00:15:44] Speaker 02:
We're talking about a motion to dismiss.

[00:15:45] Speaker 02:
If under that liberal type of standard, to hold a pro se plaintiff through that hyper-technical lens seems unfair to me.

[00:15:53] Speaker 04:
I don't know if that's hyper-technical.

[00:15:55] Speaker 04:
I think if you were the administrative judge and were presented with that motion to seal, after having been presented with a different

[00:16:04] Speaker 04:
response to the jurisdictional statement, which didn't include any of that material.

[00:16:09] Speaker 04:
Even a careful lawyer such as yourself, I am confident, quite confident, would not have poured through that motion to seal and found that document with that stamp there and said, aha, let's see if that date lines up with any of the other dates.

[00:16:26] Speaker 04:
That's really going beyond hyper-technical, it seems to me.

[00:16:29] Speaker 02:
Although in this case, Your Honor, that issue didn't sort of arise, I think, in sort of the normal course in which it might have.

[00:16:36] Speaker 02:
There was a first, in his initial submission, he obtained initial rejection because he was not a, they said, no jurisdiction because you're not a Department of Labor employee.

[00:16:46] Speaker 02:
Then when that was appealed, they said, well, no, that doesn't make sense.

[00:16:48] Speaker 02:
The Department of Labor's been administering your benefits for a year.

[00:16:51] Speaker 02:
So now we're going to say that a whistleblower protection act isn't

[00:16:55] Speaker 02:
It isn't collateral.

[00:16:57] Speaker 02:
And so then they, right, there's this footnote and the footnote then says, well, there's this, you know, other type of issue as well.

[00:17:04] Speaker 02:
But that was not really, that was not, that was not, I think, an issue that was in Mr. Kerrigan's mind.

[00:17:12] Speaker 04:
Well, it should have been because when the board sends out and they sent out the form in this case, when they sent out a form on jurisdiction, they lay out for whistleblowers exactly what they have to show.

[00:17:22] Speaker 04:
And I read the form.

[00:17:24] Speaker 04:
that he got.

[00:17:25] Speaker 04:
It's real clear.

[00:17:26] Speaker 04:
I mean, it's one of the better written forms, I have to say, that you see in the federal government.

[00:17:31] Speaker 04:
It's just as clearly as possible.

[00:17:33] Speaker 04:
It says you have to tell us what evidence you have of a non-frivolous allegation of a nexus between the event and the disclosure.

[00:17:42] Speaker 04:
And I don't see it in his papers.

[00:17:45] Speaker 02:
Well, Your Honor, I realize I'm over my time.

[00:17:48] Speaker 03:
I want to ask you another question before you sit down.

[00:17:52] Speaker 02:
Finish answering.

[00:17:54] Speaker 02:
As I sit down, I will look through the appendix and take a look at that here.

[00:17:58] Speaker 01:
Okay.

[00:17:59] Speaker 01:
I just want to go back to prohibitive personnel practice in section 2302, which you cited.

[00:18:05] Speaker 01:
Now, it does have a list of different things like denial of benefits as being one of the personnel actions, but then it also says specifically it's with respect to an employee in or an applicant for a covered position in an agency.

[00:18:20] Speaker 01:
So how does this cover Mr. Kerrigan?

[00:18:22] Speaker 02:
Well, I mean, I guess Mr. Kerrigan was treated here, as I said, as a government employee.

[00:18:30] Speaker 02:
I mean, that is how he obtained benefits.

[00:18:33] Speaker 02:
That is how his benefits were being maintained by the Department of Labor.

[00:18:39] Speaker 01:
Was he either a government employee at the time of his disclosure or in a government employee at the time of the action that he's complaining of?

[00:18:50] Speaker 01:
which is the removal of the benefits, the prohibited personnel action.

[00:18:54] Speaker 02:
He was an employee.

[00:18:56] Speaker 02:
He was an employee when he obtained his injury and the incident form was the first incident form was created.

[00:19:05] Speaker 02:
And then he was a recipient of benefits as a, as a employee who had been injured on the job when, you know, his CA 16 form was destroyed.

[00:19:16] Speaker 02:
So the document, which led to the illegal conduct, that was generated when he was still in the process of being injured and applying for benefits.

[00:19:31] Speaker 01:
But this is defining personnel action and prohibited personnel action.

[00:19:36] Speaker 01:
And it specifically says, with respect to an employee in or an applicant for a covered position in an agency,

[00:19:43] Speaker 02:
that the the personnel action prohibited personnel action applies to someone who's an employee or an applicant and a covered agency position so how can that we go back two years and years ago during the six months that he was an employee in my position in my opinion your honor because again there's this nexus here between his government employee employment and the injury he should be treated as a government employee and not

[00:20:13] Speaker 02:
you know, be treated differently because of the circumstances of his injury.

[00:20:18] Speaker 02:
It would seem patently unfair for, let's say Mr. Kerrigan lost his benefits because of, you know, racial or ethnic discrimination.

[00:20:27] Speaker 02:
I mean, to say that he couldn't raise a claim.

[00:20:30] Speaker 01:
This is a whistleblower protection act.

[00:20:32] Speaker 01:
Maybe it doesn't cover former employees or removal of benefits from covered employees.

[00:20:37] Speaker 01:
And so

[00:20:38] Speaker 02:
But the position of the board here, Your Honor, the position, as I understand it, is that nobody has jurisdiction to hear this retaliation claim.

[00:20:47] Speaker 02:
So let's say it was credibly clear that this was a result of retaliation, that there was a document that was present within the Department of Labor that says, we didn't refer him until the day we got his notice of allegations.

[00:21:03] Speaker 02:
We were sick of him.

[00:21:04] Speaker 02:
And we said, we don't want to fight with this guy anymore.

[00:21:06] Speaker 02:
We're going to take an adverse action against him.

[00:21:08] Speaker 02:
If there was evidence of that, the position of the board would be that nobody can review that.

[00:21:13] Speaker 02:
And that just doesn't seem right.

[00:21:14] Speaker 04:
But that would be true.

[00:21:15] Speaker 04:
You would concede, I think, that that would be true in the case of Judge Prost's example back at the beginning of the argument of somebody who had never worked for the government.

[00:21:24] Speaker 04:
She goes to the social security.

[00:21:27] Speaker 04:
She says, I think you all are a bunch of jerks.

[00:21:29] Speaker 04:
And they say, oh, do you?

[00:21:30] Speaker 04:
Well, we'll just cut off your benefits.

[00:21:32] Speaker 04:
Now, there may be some statute out there that gives you protection.

[00:21:35] Speaker 04:
You might have a constitutional claim if you said, you know, you've cut off my benefits for discriminatory reasons, but you don't have a whistleblower action.

[00:21:43] Speaker 02:
Yes, but you know, I do think because, again, he worked as a government employee, he was injured while he was a government employee, he obtained benefits through his government.

[00:21:56] Speaker 04:
One final, very brief question.

[00:21:58] Speaker 04:
This whole whistleblower.

[00:22:01] Speaker 04:
protecting actions started something like 12 years after he was denied his benefits.

[00:22:10] Speaker 04:
I don't know why the board didn't raise latches.

[00:22:12] Speaker 04:
I know there's not a set of limitations, but is there a reason, an explanation for what happened for 12 years?

[00:22:20] Speaker 02:
Yes, and there's a reason why the board didn't raise it.

[00:22:23] Speaker 02:
So when this all occurred, Mr. Kerrigan filed a district court action.

[00:22:28] Speaker 02:
He thought he had an action in the district court.

[00:22:32] Speaker 02:
He filed in federal court in Pennsylvania.

[00:22:34] Speaker 02:
That worked its way through the courts.

[00:22:36] Speaker 02:
The court said, we don't have jurisdiction over this.

[00:22:39] Speaker 02:
You have to go to the agency.

[00:22:40] Speaker 02:
So then once his court proceedings are all complete, he goes to the agency.

[00:22:44] Speaker 04:
And when did the court proceedings end?

[00:22:46] Speaker 02:
It's in actually, it's actually in the opinion.

[00:22:50] Speaker 02:
I think it was 2007, right?

[00:22:52] Speaker 02:
I think that's right.

[00:22:53] Speaker 02:
And then there was a second action and then

[00:22:56] Speaker 02:
that he tried to file against.

[00:22:58] Speaker 02:
So first he filed an action against the agency.

[00:23:00] Speaker 02:
Then he filed an action against the doctor who reviewed his file but never actually spoke to him.

[00:23:07] Speaker 02:
And then he filed that action.

[00:23:09] Speaker 02:
That was also dismissed.

[00:23:11] Speaker 02:
And then he went to them.

[00:23:13] Speaker 02:
Thank you.

[00:23:14] Speaker 03:
Thank you.

[00:23:14] Speaker 03:
Will we serve a couple minutes for rebuttal?

[00:23:21] Speaker 00:
Good morning and may it please the court.

[00:23:23] Speaker 00:
I would like to start with the question the court asked counsel about the scope of the Whistleblower Protection Act and whether it covers former employees.

[00:23:30] Speaker 00:
I am aware of two non-precedential decisions from this court that address that issue.

[00:23:36] Speaker 00:
They're not cited in our brief because this issue wasn't raised in the board's opinion and order, but those are Guzman and Nasuti.

[00:23:44] Speaker 00:
And they both hold that

[00:23:47] Speaker 00:
A former employee may be covered by the WPA, but only to the extent that the whistleblower claims raised were raised during his employment.

[00:23:54] Speaker 04:
And what are the sites to those cases?

[00:23:57] Speaker 00:
Sites are Guzman is 53, Fed APPX 927, and it's a 2002 decision.

[00:24:07] Speaker 00:
And Nasuti is 376, Fed APPX 29, and it's a 2010 decision.

[00:24:16] Speaker 00:
Other than those two, I'm not aware of any Federal Circuit presidential decisions on this issue.

[00:24:21] Speaker 03:
Do you have a view on the statutory provisions we're talking about and what, in response to your friend's arguments, that there's, he's limited at least the scope of the universe to persons, and you understand his argument, because of this whole injury and this whole relationship that the appellant established with DOL was predicated on what occurred

[00:24:44] Speaker 03:
while he was a federal employee and what happened to him, that makes it.

[00:24:49] Speaker 03:
That's much more of a nexus.

[00:24:51] Speaker 03:
He's not just any random form of an employee.

[00:24:53] Speaker 00:
I understand that argument, but he did not actually make his whistleblower disclosures while he was a former employee.

[00:25:00] Speaker 00:
He made them more than a decade after his employment was terminated while he was receiving these benefits.

[00:25:07] Speaker 03:
So under the statute... Well, that's true, but under the circumstances, that's just the way it turned out.

[00:25:11] Speaker 03:
There's nothing willful about that.

[00:25:13] Speaker 00:
That's just obviously he was no longer... Well, the issues he's complaining about are not issues that arose during his employment.

[00:25:19] Speaker 00:
They're issues in the administration of his benefits, which occurred after his employment was terminated.

[00:25:23] Speaker 04:
What about the question of whether the employer-employee relationship that is addressed by the Whistler Law Protection Act has to be

[00:25:35] Speaker 04:
an employee of the employer who has acted against the employee.

[00:25:41] Speaker 04:
Do you think here we've got an employee of the Department of Defense who's raising whistleblowing action against the Department of Labor?

[00:25:49] Speaker 04:
Do you think that falls within the WPA?

[00:25:52] Speaker 00:
I think that's sort of an uncertain question.

[00:25:54] Speaker 00:
There's a board case on that called Weed that is a presidential case, and I can give the sites for that as well.

[00:26:00] Speaker 04:
I know the Weed case, okay.

[00:26:01] Speaker 00:
That actually addresses that exact issue and it holds

[00:26:04] Speaker 00:
To the contrary, that you can bring, an employee can bring a claim against an agency other than the one that employed him, but there's some tension with that case and this Nassidi case and this Guzman case and the board, I think partially for that reason, chose not to resolve this issue in this decision.

[00:26:20] Speaker 00:
And that's part of the reason why the board chose to rely on the much clearer issue that the FECA does not provide this review at all.

[00:26:30] Speaker 00:
I'm sorry, forecloses this review.

[00:26:32] Speaker 03:
So the boards, but under the precedent you cited, the board's position is that if you're an employee of DOD, then that gives you, you can do a whistleblower complaint against IRS because of your personal taxes that has no relationship.

[00:26:49] Speaker 00:
I think it still has to have something to do with your employment as a government employee.

[00:26:53] Speaker 00:
I don't think it would be your personal taxes, but for the board, I think in weed,

[00:26:58] Speaker 03:
address the issue of maybe there was a transfer or a detail to another agency so that while you're on a detail, for example, you're technically still... Well, for me, in my mind, that there's an enormous distinction between somebody who's a detailee because they're an employee of sorts.

[00:27:15] Speaker 03:
I mean, a lot of benefits in there to you.

[00:27:17] Speaker 03:
You take your benefit package with you when you go on detail to another agency.

[00:27:21] Speaker 03:
To me, that's nothing close to

[00:27:25] Speaker 03:
the kind of different agency we're talking about here in DOL or IRS or Social Security Administration, right?

[00:27:31] Speaker 00:
Well, I think it is.

[00:27:33] Speaker 00:
In the wheat case, because it was an issue of a detail or transfer, it was closer, I think, in the case like here where there's absolutely no relationship between the employing agency and the agency that administers benefits, other than the fact that

[00:27:45] Speaker 00:
he was injured and therefore is entitled to benefits, I agree it would be much more of a stretch.

[00:27:49] Speaker 00:
I'm sorry.

[00:27:50] Speaker 04:
The next question, though, and we talked with your opposing counsel almost and took up almost his entire argument on these issues, but can we even reach these issues under Chenery, since the agency didn't decide the case on the basis of any of these issues having to do with the scope of the WPA, other than the 8128 and the

[00:28:15] Speaker 04:
non-frivolous allegation issues.

[00:28:17] Speaker 00:
I think under Channery and under Killip that you can reach these issues because the administrative judge did decide this issue on, did decide the case on that issue, which is that as neither an employee nor an applicant for employment, there could be no personnel action.

[00:28:31] Speaker 00:
But the board did not.

[00:28:32] Speaker 00:
The board went ahead.

[00:28:34] Speaker 04:
So my understanding is the board speaks for the agency

[00:28:39] Speaker 04:
and not the administrative judge.

[00:28:41] Speaker 04:
And therefore, we're reviewing the board's determination, not that of the administrative judge.

[00:28:46] Speaker 04:
Isn't that right?

[00:28:47] Speaker 00:
That's true.

[00:28:48] Speaker 00:
But there have been cases where an administrative judge has held A, the board has reversed it, held B, and this court has reversed the board and reinstated the decision of the administrative judge.

[00:28:59] Speaker 00:
Under Chenery and under Killip, if you don't need to make additional fact finding, if you're simply relying on an alternative legal argument, that's something that the court can do.

[00:29:09] Speaker 00:
And the board here, although it vacated that aspect of the decision, it did not actually reverse it or offer any analysis to the contrary.

[00:29:16] Speaker 00:
It simply offered an alternative legal holding.

[00:29:19] Speaker 03:
Can I take you to the non-firmless allegation question, which the board sort of relied on a very long footnote as an alternative.

[00:29:27] Speaker 03:
Is the board's position that timing is enough

[00:29:31] Speaker 03:
to establish a non-frivolous allegation or do you also need to identify that the persons that engaged in this conduct were aware?

[00:29:39] Speaker 00:
The board's position is the latter.

[00:29:41] Speaker 00:
I think there are often questions of timing and in this case the timing is close enough that had the other elements been established

[00:29:49] Speaker 00:
I think the board would agree that the timing in this case is suspicious.

[00:29:53] Speaker 00:
However, the other elements were not established because there was no specific non-perilous allegation that anybody who proposed this action or took this action had any idea that he had made disclosures to the OIG.

[00:30:05] Speaker 01:
Well, couldn't it have been hard to show in a case like this where the person's not actually employed at the agency?

[00:30:12] Speaker 01:
Maybe when you're actually employed at the agency, you have more access to that kind of information.

[00:30:18] Speaker 01:
Isn't it so that other evidence could have been presented or allegations could have been made?

[00:30:23] Speaker 00:
Well, there's a threshold of jurisdiction, which is where he got hung up, and had he actually made a non-frivolous allegation, he would have established jurisdiction, been entitled to hearing, been entitled to discovery on the issues that were going to be addressed at his hearing.

[00:30:37] Speaker 00:
So if he had offered

[00:30:40] Speaker 00:
allegations that were non-frivolous, he would have had discovery against the agency and then he could have said, give me all your documents related to this issue and perhaps something would have come out or would not have come out.

[00:30:50] Speaker 01:
What's an example of something that would be a non-frivolous allegation that he could have provided here?

[00:30:55] Speaker 00:
He could have explicitly said,

[00:30:56] Speaker 00:
not by implication, not by inference, but explicitly said, I made these claims to the DOL OIG.

[00:31:03] Speaker 00:
They sent those claims over to the OWCP.

[00:31:07] Speaker 00:
The OWCP knew about them.

[00:31:08] Speaker 00:
And as a result of knowing about these claims, they terminated my benefits.

[00:31:11] Speaker 00:
He did not say that.

[00:31:13] Speaker 03:
Can I ask you about that?

[00:31:14] Speaker 03:
Because I'm very confused.

[00:31:16] Speaker 03:
I had not focused on this before, but your friend turned our attention to A190 and 191, the sworn declaration by Mr. Kerrigan.

[00:31:26] Speaker 03:
And so I'm just kind of looking at it carefully for the first time, but it seems as if the first paragraph on 191 does list all these people in OCCP and does seem to say they have been notified in person or by mail regarding fraud or will be shown

[00:31:44] Speaker 03:
So is that?

[00:31:45] Speaker 00:
It's rather ambiguous because if you read it only this paragraph, you might believe that.

[00:31:50] Speaker 00:
But if you read it in the context of his rather voluminous and confused filings, he is constantly accusing everybody of fraud.

[00:31:59] Speaker 00:
And there's a difference in the fraud of which he accuses them in administering his claim and the fraud that he says he then reported to DOL and then the additional fraud that as a result of that they terminated his benefit.

[00:32:11] Speaker 00:
He calls everything fraud.

[00:32:13] Speaker 00:
As I understand it.

[00:32:14] Speaker 03:
So you don't think he's referring here to the fact that they were notified, i.e.

[00:32:18] Speaker 00:
through the... Well, I think what he may be talking about, and it's a little hard to tell because it's not explicit, is his substantive claims regarding the termination of his benefits that he chose his doctor or he was not allowed to choose his doctor or they lost his form.

[00:32:38] Speaker 00:
It's basically the claims that he actually then went and made whistleblower disclosures on, which is that they destroyed evidence, falsified evidence, all of that.

[00:32:48] Speaker 00:
I think, as I read it, that's what he's talking about in this paragraph.

[00:32:53] Speaker 00:
He may be saying that he told those people that they had committed fraud, but that's not the same thing as telling those people that he reported their misconduct to another entity.

[00:33:01] Speaker 00:
Maybe he could have made a whistleblower claim on this.

[00:33:04] Speaker 00:
He didn't.

[00:33:05] Speaker 00:
The whistleblower claim he articulated to the board is that he reported misconduct to the OIGs of two agencies, DOL and DOD, and because he did that, his benefits were terminated.

[00:33:16] Speaker 00:
But the missing link is that he never alleged that the people doing the terminating of benefits knew he had reported those allegations to the OIG.

[00:33:28] Speaker 00:
If there's no further questions on those issues, I'd also like to

[00:33:32] Speaker 04:
I take it that that document that you were reading from was part of this motion to seal?

[00:33:40] Speaker 04:
Yes, that was one of... It wasn't in its jurisdictional response?

[00:33:44] Speaker 00:
No, that was part of the motion to seal, which I believe was considered because neither the administrative judge nor the board said anything about not considering it and usually they consider everything in the record and not explicitly say otherwise.

[00:33:57] Speaker 00:
I'd also like to address the basis on which the board actually ruled, which is that the FECA forecloses review of this whistleblower action because it says that nobody can review benefits decisions.

[00:34:17] Speaker 00:
I think it's pretty plain under the language of the statute

[00:34:20] Speaker 00:
which says that no agency or official can review benefits decisions.

[00:34:25] Speaker 00:
And so that even though whistleblower claims would normally be within the board's sphere, it's cut off in this case because there's no way to review what ODBCP and ECAB held without actually looking at the substance of the determination, the reason for the determination, and that kind of review is barred by the statute.

[00:34:45] Speaker 03:
And that would be true of civil rights cases or not?

[00:34:47] Speaker 03:
There are carved out exceptions for that.

[00:34:50] Speaker 00:
Well, I mean, if he had brought a civil rights case, you mean with respect to, if he had said... They terminated his benefits because they said, we don't like you because you're...

[00:35:03] Speaker 03:
of your race, and that's why we're terminating your benefit.

[00:35:06] Speaker 00:
Well, that ordinarily probably would not be within the board's jurisdiction anyway.

[00:35:09] Speaker 00:
He might be able to go to the EEOC on that, but I would assume that the statute would also foreclose that sort of review by an agency.

[00:35:16] Speaker 00:
Possibly he could get into district court on a constitutional claim.

[00:35:20] Speaker 00:
And I think in one of his district court cases, the court actually noted that the statute now withstanding

[00:35:25] Speaker 00:
the court might have jurisdiction to hear some sort of claim if there was a real substantive due process claim but that he hadn't shown it and that was the reason that they were denying it and that was one of the Third Circuit decisions and I think it is referenced in the board's opinion and order.

[00:35:40] Speaker 00:
The district court may have that power but the board does not.

[00:35:42] Speaker 00:
The board's jurisdiction is very strictly limited and defined by statute.

[00:35:50] Speaker 00:
If there are no further questions?

[00:35:52] Speaker 04:
I would like to explore the

[00:35:55] Speaker 04:
FECA issue the jurisdictional limitation in the statute a little bit more.

[00:36:04] Speaker 04:
So what is the line that you draw between cases such as minor, which are outside of the preclusive effect of the statute, and this case where the issue is not that

[00:36:26] Speaker 04:
Issue is not the correctness of the denial.

[00:36:29] Speaker 04:
It is the relationship between the disclosure and the denial.

[00:36:34] Speaker 00:
The distinction is that in Mayer, there was a separate action separate from the OWCP or ECAB proceedings on which the board could rule.

[00:36:43] Speaker 00:
The agency, his employing agency, took a separate action against the petitioner there, and that is what the board was ruling on.

[00:36:50] Speaker 00:
There's nothing like that here.

[00:36:51] Speaker 00:
The only thing at issue is the OWCP and ECAB decision.

[00:36:55] Speaker 00:
There is no subsequent agency action because he wasn't employed by an agency.

[00:37:00] Speaker 00:
So there was nothing for the board to roll on.

[00:37:04] Speaker 04:
Would it defeat the whistleblower protection claim if the, I guess this goes to the question of whether there's clear and convincing evidence that the action would have been taken anyway.

[00:37:21] Speaker 04:
But at least at the initial stage, the whistleblower

[00:37:24] Speaker 04:
protection claim doesn't, the claimant doesn't have to show that he would have been entitled to the benefit, right?

[00:37:31] Speaker 04:
That only comes up as part of the affirmative defense of the agency and then the agency has to show by clear and convincing evidence that they would have taken the same action anyway.

[00:37:41] Speaker 00:
That's right, but that's part of the merits determination so that's not an issue of jurisdictional determination like this one.

[00:37:48] Speaker 04:
Well, you say it's not part of the merits.

[00:37:51] Speaker 04:
It's not part of the jurisdictional determination.

[00:37:54] Speaker 04:
I'm not sure I understood the last part of what you said.

[00:37:55] Speaker 00:
I'm sorry.

[00:37:56] Speaker 00:
The clear and convincing evidence test is part of the merits determination.

[00:37:59] Speaker 00:
Right.

[00:37:59] Speaker 00:
That's not something the petitioner needs to show.

[00:38:02] Speaker 00:
You're talking about non-frivolous allegation.

[00:38:04] Speaker 04:
Right.

[00:38:04] Speaker 04:
That's my question.

[00:38:05] Speaker 04:
And that's why I'm wondering why it is that that is necessarily tied in with his whistleblowing protection action.

[00:38:14] Speaker 04:
In other words, if he made a false statement on his

[00:38:18] Speaker 04:
application for benefits and also made a simple word protection, or whatever.

[00:38:26] Speaker 04:
That would not be foreclosed by the 8128B, right?

[00:38:32] Speaker 04:
I mean, the false statement, an action firing them for making a false statement.

[00:38:37] Speaker 00:
Well, if his employing agency fired him for making a false statement, which is what happened in Meyer Miller, no, that would not be foreclosed.

[00:38:43] Speaker 00:
But that's not what happened here.

[00:38:44] Speaker 04:
I understand.

[00:38:45] Speaker 04:
But the question is, why is that not like this case since we've agreed that the question of whether he would have gotten his benefits anyway or not is not part of his affirmative case?

[00:39:01] Speaker 04:
It comes in to the question only as an affirmative defense.

[00:39:07] Speaker 00:
Well, I think there's sort of two issues.

[00:39:09] Speaker 00:
One is that if something that's part of the merits test is not part of the jurisdictional test, if you don't meet the jurisdictional threshold, the board can't go on and sort of bootstrap it in on the merits.

[00:39:21] Speaker 00:
Right.

[00:39:23] Speaker 00:
Well, go ahead.

[00:39:25] Speaker 04:
I'm sorry.

[00:39:26] Speaker 04:
I lost my train of thought.

[00:39:27] Speaker 04:
Well, you understand where I'm going with this, or trying to go, is the question of the extent to which

[00:39:36] Speaker 04:
In order to decide the Whistleblower Protection Act question, you really have to go to the merits of the underlying agency decision.

[00:39:45] Speaker 04:
And if you don't, then I guess Miner and Miller say, well, then it isn't foreclosed by 8128B.

[00:39:52] Speaker 04:
Why do you have to get to the merits in a Whistleblower Protection Act claim?

[00:39:59] Speaker 00:
It depends on the nature of the Whistleblower Protection Act claim.

[00:40:03] Speaker 00:
If you have a separate action by the agency and you say,

[00:40:06] Speaker 00:
The employing agency terminated me and part of the reason was that I went to OWCP and I made whistleblower claims to OWCP and therefore you can decide the whistleblower issue without adjudicating whether the OWCP decision itself was correct.

[00:40:22] Speaker 00:
And I think that would be collateral, that would be outside the soap of the statute.

[00:40:25] Speaker 00:
But if your only claim as here is I went to OWCP and they terminated my benefits because I'm a whistleblower and the board would have to review

[00:40:35] Speaker 00:
the actual substance of whether or not you should have gotten these benefits.

[00:40:39] Speaker 01:
Don't they just have to look at whether his benefits would have been terminated anyway, regardless of the whistleblower activity?

[00:40:47] Speaker 00:
That's part of the substantive determination made by OWCP that is foreclosed by the statute.

[00:40:52] Speaker 00:
It says the action of the secretary in awarding or denying benefits.

[00:40:55] Speaker 00:
The board under the statute cannot inquire into any of this.

[00:40:58] Speaker 01:
But if we're not looking at the correctness of it, what would it have happened anyway?

[00:41:02] Speaker 01:
Those are two different issues.

[00:41:04] Speaker 00:
But how do you determine it would happen anyway unless it was correct?

[00:41:08] Speaker 00:
And the board has no power to reverse it.

[00:41:11] Speaker 00:
The decision of the secretary is final.

[00:41:14] Speaker 00:
Even if it were explicit and the decision said, we are terminating your benefits because your whistleblower statute forecloses review and the board cannot reverse it and the board cannot review it.

[00:41:25] Speaker 03:
And that's because in the merits determination,

[00:41:28] Speaker 03:
the agency even as long as they can prove by clear and convincing evidence that they would have taken it in any event or otherwise?

[00:41:36] Speaker 00:
I think the board can't even reach that issue.

[00:41:37] Speaker 03:
I think the statute... No, but that's why you're saying that they can't because that would necessarily be part and parcel of what they would have to get to if they were to take this case.

[00:41:46] Speaker 00:
I mean, I suppose if you could carve out some way to address whistleblowing in isolation and find that there was

[00:41:52] Speaker 00:
whistleblower retaliation, but then not address whether the same action would have been taken and not offer any remedy and basically do nothing other than make a finding that there may have been whistleblower retaliation.

[00:42:01] Speaker 03:
I guess the board could have said- But I think Judge Still was alluding, even when we're talking about them establishing that they wouldn't have, would have taken it anyway, that's distinct from whether they did the right thing.

[00:42:13] Speaker 03:
I mean, they could have a paper trail that said, we had these doctor's letters and we told him,

[00:42:19] Speaker 03:
And so we've proven that.

[00:42:21] Speaker 03:
That wouldn't go to whether they did the right thing or whether something they did was improper.

[00:42:27] Speaker 03:
It wouldn't be second guessing.

[00:42:27] Speaker 00:
But it goes to their reasoning as a whole.

[00:42:29] Speaker 00:
And the statute says the action in allowing or denying a payment.

[00:42:35] Speaker 00:
And I think any reasoning that they relied on, mathematical or otherwise, is part of that.

[00:42:45] Speaker 00:
Thank you.

[00:42:51] Speaker 02:
Give me four minutes back on me.

[00:42:52] Speaker 02:
Thank you.

[00:42:53] Speaker 02:
Before I go to some of the pages that I wanted to mention, on this jurisdictional question, I mean, I think it's very clear, and I don't believe there's any case that supports the MSP's decision in this case, that to review the whistleblower protection act claim here, there is no need, and it would not be required, to review whether or not Mr. Kerrigan could be terminated.

[00:43:19] Speaker 02:
Just as in minor,

[00:43:21] Speaker 02:
The question in the WPA, whether he had been retaliated against, is entirely collateral.

[00:43:26] Speaker 02:
In fact, it's a better case than Miner.

[00:43:28] Speaker 02:
And Miner, the arbitrator, had to review the same operative facts.

[00:43:31] Speaker 03:
But if we take this case and we go to the merits, the agency, I guess the agency here is the Department of Labor, is going to come in as they can and present an affirmative defense, which happens in every case, that say, no, we would have taken this action anyway.

[00:43:49] Speaker 03:
this action being we would have terminated his claim to benefits.

[00:43:54] Speaker 03:
So that becomes part and parcel of this case with the board evaluating whether or not they've established to their satisfaction that they would have taken the action in any case.

[00:44:04] Speaker 03:
Do you understand what I'm saying?

[00:44:05] Speaker 02:
I don't know that I do, Your Honor, because what was just said seems contrary as I understand minor to be.

[00:44:15] Speaker 02:
Because in minor, they did talk about

[00:44:18] Speaker 02:
some of the same facts that were in the underlying agency determination.

[00:44:22] Speaker 02:
But what the court said is that they said, well, the arbitrator, there's a statutory provision, a separate claim that gives the arbitrator the right to review whether or not an employee made false statements.

[00:44:34] Speaker 02:
Well, here there's a statute that gives Mr. Kerrigan the right to bring a WPA claim.

[00:44:40] Speaker 02:
And the claim is not, you can't terminate somebody for failing to attend vocational training.

[00:44:47] Speaker 02:
The claim is,

[00:44:48] Speaker 02:
an adverse action was taken against Mr. Kerrigan because he made fraud allegations.

[00:44:54] Speaker 02:
That issue was not before the ECAP.

[00:44:56] Speaker 02:
That is not something that the ECAP had to decide.

[00:44:59] Speaker 02:
That is a strictly separate cause of action.

[00:45:02] Speaker 04:
But what the board would have to decide in almost a virtue of dead certainty the way these things play out is whether or not the case against the case of the agency

[00:45:17] Speaker 04:
for terminating his benefits was so clear that, and surely would have come out the same way without regard to whatever statements he made.

[00:45:28] Speaker 04:
That question becomes foremost in 98% of these whistleblower protection act cases that go that far.

[00:45:36] Speaker 04:
And that is a question which would require the MSPB, I guess,

[00:45:41] Speaker 04:
to determine whether the board got it right or not.

[00:45:44] Speaker 02:
Would it not?

[00:45:45] Speaker 02:
I don't think so, Your Honor, because the issue that they would be presenting, what they would be saying, as I understand it, is they would be saying, we would have referred him to vocational training even had he not made those fraud allegations.

[00:45:58] Speaker 02:
So they would have had to explain away the fact that the referral, which wasn't made for all these years, was made upon the notice of allegations.

[00:46:08] Speaker 02:
So there's an allegation of fraud made and this happens.

[00:46:11] Speaker 02:
So they would have to explain.

[00:46:12] Speaker 04:
And the MSPB would have to decide, would it not, whether that explanation was so powerful in its evidentiary support that it was clear and convincing evidence that the board got it right.

[00:46:26] Speaker 04:
They would have decided this willy-nilly with no disclosure.

[00:46:29] Speaker 04:
What am I missing here?

[00:46:31] Speaker 02:
Well, that issue was not decided by the ECAP, Your Honor.

[00:46:34] Speaker 02:
So in other words, the

[00:46:36] Speaker 02:
I think there's two points here.

[00:46:38] Speaker 02:
So one is the question of whether or not you could terminate him.

[00:46:42] Speaker 02:
Mr. Kerrigan isn't arguing that you can't terminate somebody's FECA benefits if they fail to obtain vocational rehabilitation training.

[00:46:50] Speaker 02:
That's not his claim.

[00:46:51] Speaker 02:
His claim is that an adverse action was taken against him.

[00:46:55] Speaker 02:
So what the Department of Labor would have to show is that they would have taken the adverse action

[00:47:02] Speaker 02:
What is the adverse action?

[00:47:03] Speaker 02:
The adverse action is the referral to vocational training, which could have occurred at any time, but only occurred.

[00:47:10] Speaker 02:
So they refer someone to vocational rehabilitation who's got part of their spine removed, and they refer that person to training when they receive these allegations of forgery and destruction of evidence.

[00:47:24] Speaker 02:
So that could have occurred at any time in eight years.

[00:47:26] Speaker 02:
Had they made that referral?

[00:47:28] Speaker 02:
in 1998 and he didn't show up and they terminated benefits, I wouldn't be here today.

[00:47:33] Speaker 04:
But the termination of benefits is ultimately what he's complaining about, right?

[00:47:38] Speaker 04:
Because he's got to be, because otherwise, how is he in this message?

[00:47:42] Speaker 02:
The piece is about the adverse action.

[00:47:45] Speaker 02:
It's about that referral.

[00:47:47] Speaker 02:
It's about that action.

[00:47:48] Speaker 02:
That action is not part of the ECABS decision.

[00:47:50] Speaker 02:
It's a separate claim.

[00:47:52] Speaker 02:
That's the whistleblower

[00:47:55] Speaker 02:
And the relief would be?

[00:47:56] Speaker 02:
The relief would be subject to the discretion of the MSPB.

[00:48:00] Speaker 02:
The MSPB has broad discretion to grant status quo anti-relief and all sorts of other types of things that are within its jurisdiction.

[00:48:09] Speaker 02:
But it wouldn't be the restitution.

[00:48:12] Speaker 02:
It wouldn't necessarily be the restitution.

[00:48:13] Speaker 03:
Why not?

[00:48:14] Speaker 03:
If you prevail and you say they determined that there was an unlawful referral to vocational training, it was unlawful because it was predicated solely

[00:48:24] Speaker 03:
on his protected disclosure, then the remedy is that the referral is taken off the table.

[00:48:34] Speaker 03:
Well, if you retroactively take the referral off the table, then you've got to restore his benefits.

[00:48:44] Speaker 03:
Without the referral, there's no basis for rescission.

[00:48:48] Speaker 02:
That very well may be the case, but that's not an issue for a motion to dismiss.

[00:48:53] Speaker 02:
That's an issue to be determined by the board after a hearing.

[00:48:57] Speaker 03:
The point that I'm trying to make, Your Honor, is... Well, we've got to determine a motion to dismiss on jurisdiction.

[00:49:02] Speaker 03:
We've got to determine whether or not the board is correct, that they would be stepping on the statutory prohibition against reviewability.

[00:49:11] Speaker 03:
if they decided this case.

[00:49:12] Speaker 02:
There's no element of Mr. Kerrigan's claim that relates to whether or not he could have been terminated.

[00:49:19] Speaker 02:
There's no element of the claim.

[00:49:21] Speaker 02:
That is not an element of the claim that's being made.

[00:49:23] Speaker 02:
The element is that there was a retaliatory action that was not considered by DCAP.

[00:49:29] Speaker 02:
So again, the issue that this is an entirely separate proceeding, it's just like minor.

[00:49:35] Speaker 02:
It's a separate

[00:49:38] Speaker 02:
proceeding whose jurisdiction lies with someone different from- It is different from Miner and Miller, right?

[00:49:42] Speaker 01:
You agree that it's different from Miner and Miller and that in Miner and Miller, there was a removal action, not a seeking of the benefits under FECA that had been found under FECA to not be allowed anymore.

[00:49:57] Speaker 01:
There, the corrective action, if the whistleblower case was successful, would have been re-employment, not

[00:50:07] Speaker 01:
restatement of benefits, right?

[00:50:10] Speaker 02:
In those cases, I'm not positive sitting here.

[00:50:14] Speaker 02:
I thought one of those cases was benefits.

[00:50:16] Speaker 01:
I think they're both removal.

[00:50:17] Speaker 02:
But regardless, in those cases, the issue that the court's holding is based on is the idea that it's a separate proceeding, that there is one proceeding whose jurisdiction lies within the agency and another that lies within the arbitrator.

[00:50:31] Speaker 01:
I understand that.

[00:50:32] Speaker 01:
We're in trouble with anything, with your argument.

[00:50:33] Speaker 01:
I want to let you know this so you can respond, okay?

[00:50:36] Speaker 01:
But if I have any trouble at all with your argument, it's that those cases are different because the remedy that you would seek here seems very much like what is final and conclusive for all purposes on your FECA.

[00:50:52] Speaker 01:
And so to the extent that you can help me understand how Minor and Miller, it doesn't matter what the remedy is, if you have an argument like that, I'd like to hear it.

[00:51:03] Speaker 02:
Well, I think that's correct, Your Honor.

[00:51:05] Speaker 02:
I don't think the remedy matters.

[00:51:07] Speaker 02:
I think the way I understand the case law, I understand those cases, is that the issue is whether there is a separate collateral proceeding.

[00:51:17] Speaker 02:
There can be an overlap of facts.

[00:51:18] Speaker 02:
Minor says that.

[00:51:19] Speaker 02:
In fact, minor, the facts are almost identical.

[00:51:22] Speaker 02:
There can be an overlap of facts.

[00:51:23] Speaker 02:
There just has to be jurisdiction for the claim, has to lie with somebody else.

[00:51:28] Speaker 02:
And to my knowledge, this court has never said

[00:51:32] Speaker 02:
has never said or taken the legal position that the MSPB is asking for here.

[00:51:38] Speaker 03:
They have never said... If the board says it has jurisdiction, that it necessarily has jurisdiction to provide relief.

[00:51:48] Speaker 03:
And so it's appropriate for us to look at the nature of relief that would inert here, right?

[00:51:53] Speaker 02:
I think that's right.

[00:51:54] Speaker 03:
And when your answer a few minutes ago was,

[00:51:57] Speaker 03:
Will they have authority they could provide any kind of relief?

[00:52:01] Speaker 03:
What kind of relief could they provide?

[00:52:03] Speaker 03:
Other than saying, well, we're going to require rescission of that unlawfully executed decision to send him to vocational training.

[00:52:13] Speaker 03:
If that is rescinded, then everything that the DOL did has to be rescinded.

[00:52:21] Speaker 02:
But that question, so that issue of the rescission of vocational, that again, that is not something that was considered by the ECAP.

[00:52:30] Speaker 02:
That was not a question or an issue that was before the ECAP.

[00:52:34] Speaker 02:
That is not related directly to the benefits determination.

[00:52:42] Speaker 02:
There's no challenge here.

[00:52:43] Speaker 02:
Didn't they rescind his benefits because he refused to go to

[00:52:46] Speaker 02:
They refuted his benefits because he did not attend vocational training.

[00:52:51] Speaker 02:
Okay.

[00:52:52] Speaker 03:
Well, if the record takes away the order to go to vocational training, if that's obviated by something the board does, then there's no other basis for them to have rescinded his benefits.

[00:53:04] Speaker 02:
Sure, your honor.

[00:53:05] Speaker 02:
But again, the statute talks about revering that determination that his benefits

[00:53:14] Speaker 02:
should have been taken away because he failed to attain vocational training.

[00:53:18] Speaker 04:
Did he argue before the ECAB that the referral was inappropriate?

[00:53:24] Speaker 02:
He argued in front of the ECAB, I believe, that he was exploring his due process rights.

[00:53:36] Speaker 02:
And he argued before the ECAB that he had made a disclosure that the CA-16 forum was forged.

[00:53:43] Speaker 04:
But did he argue that the referral, for whatever reason, was inappropriate?

[00:53:50] Speaker 04:
Did he challenge the referral?

[00:53:52] Speaker 02:
He did not specifically call out the referral.

[00:53:54] Speaker 02:
He talked about the process generally.

[00:53:58] Speaker 02:
And so since I'm substantially over time, I did want to get back to your question real quick about the merits.

[00:54:04] Speaker 02:
So in his initial filing with the board,

[00:54:09] Speaker 02:
He, or with the MSPB, he included a document, A25.

[00:54:14] Speaker 02:
And in A25, it's a, it's a letter from March, 2002, notifying Mr. Kerrigan of, you know, that his benefits are going to be introduced in there.

[00:54:24] Speaker 02:
Yes.

[00:54:25] Speaker 02:
So that issue, that letter is signed by Jeanette Hill and Jeanette Hill is named on page A191 in Mr. Kerrigan's sworn declaration, which

[00:54:37] Speaker 02:
as counsel for the MSPB stated, I understand, was considered as part of this overall file.

[00:54:42] Speaker 02:
And in that paragraph, he does identify Jeanette Hill as a person who was aware of his spot allocations.

[00:54:48] Speaker 02:
So thank you.

[00:54:49] Speaker 03:
Thank you.

[00:54:49] Speaker 03:
We'll take both sides in the case.