[00:00:26] Speaker 02:
Mr. Wickhamfield?

[00:00:54] Speaker 02:
You're reserving five minutes out of 15, right, for your rebuttal?

[00:00:59] Speaker 02:
That's correct, Your Honor.

[00:00:59] Speaker 02:
All right, you may proceed, sir.

[00:01:01] Speaker 01:
Please, the Court.

[00:01:02] Speaker 01:
I'm Ari Wolkenfeld, and along with my co-counsel Rosalind Herondine, we represent Dr. Krugman, the petitioner in this case, against the agency, the Veterans Administration.

[00:01:14] Speaker 01:
Can you speak up a little bit?

[00:01:15] Speaker 01:
Yes, sir.

[00:01:19] Speaker 01:
The proffered reason

[00:01:21] Speaker 01:
the agency has provided as for why they terminated Dr. Krugman is not supported by the substantial weight of the evidence in the record.

[00:01:30] Speaker 01:
Specifically, Dr. Krugman was terminated in part because of his refusal or unwillingness to perform certain types of examinations.

[00:01:39] Speaker 01:
It's Dr. Krugman's contention that had he performed those examinations, he would have been breaking the law.

[00:01:45] Speaker 01:
And there has been no evidence presented by the agency

[00:01:48] Speaker 01:
in any of the four matters below or in any of the briefs before this court that conclusively establishes that he could lawfully follow those orders.

[00:01:57] Speaker 02:
Is it your contention that one of the protected disclosures of Mr. Krugman was that he was not qualified to perform these exams?

[00:02:08] Speaker 01:
One of the protected disclosures that my client made was essentially that he was not qualified, but more specifically that he

[00:02:15] Speaker 01:
and others had improperly been granted privileges to practice medicine by the VA.

[00:02:21] Speaker 01:
That was one of only a few disclosures that he made, which we believe provides the motive necessary for a finding for Dr. Krugman under the Whistleblower Protection Act.

[00:02:32] Speaker 01:
The decisions below are very inconsistent on the issue of motive.

[00:02:40] Speaker 01:
The administrative judge in his first order finds that

[00:02:44] Speaker 01:
There was evidence that the disclosures were a contributing factor.

[00:02:54] Speaker 01:
Then it goes up to the MSPB on June 12th and they send it back down saying that the judge below had not sufficiently considered a great deal of evidence relating to motive.

[00:03:05] Speaker 01:
He holds no new hearing.

[00:03:07] Speaker 01:
He accepts written submissions only, hears no new testimony.

[00:03:11] Speaker 01:
The only new documents he gets are documents that show motive.

[00:03:15] Speaker 01:
And then following that concludes he changes his ruling from it was a contributing factor to there was no evidence of motive.

[00:03:25] Speaker 01:
And he does so without any explanation.

[00:03:28] Speaker 01:
Now, as the court has held, in fact, in the previous argument as this court was discussing, where the court below or the judge below

[00:03:38] Speaker 01:
fails to explain or fails to provide any reasoning or logic behind their findings, this court cannot properly review that finding.

[00:03:47] Speaker 01:
And that's something as critical as motive under the Whistler Law Protection Act.

[00:03:51] Speaker 01:
We believe that the judge below erred and committed an abuse of discretion by not laying out his findings.

[00:03:59] Speaker 03:
I thought part of the findings was that no VA official or that Texas Valley

[00:04:07] Speaker 03:
medical facility itself was negatively impacted or criticized in light of the various disclosures that Dr. Krugman made?

[00:04:16] Speaker 01:
I think that Your Honor is correct and the judge below did find that the two individuals who proposed and decided on the termination of Dr. Krugman, they had not had their jobs affected.

[00:04:29] Speaker 01:
But I believe to suggest that the types of disclosures that were made here, which resulted in

[00:04:35] Speaker 01:
the Office Special Counsel contacting Secretary Shinseki at the time, which resulted in Shinseki ordering the VA to examine itself.

[00:04:44] Speaker 01:
And that examination resulted in six specific findings, including that the entire VA authority in Valley be subjected to an ethics and professionalism exam.

[00:05:05] Speaker 01:
And also in particular, the nature of the initial disclosures were that this gigantic new building, this ambulatory service center, which had been built under the leadership of Dr. Aguilar and Dr. Milligan, the two would be deciding officials here, that essentially Dr. Krugman tore it apart.

[00:05:27] Speaker 01:
He came in and in his first week said, the surgery rooms are not sterile.

[00:05:32] Speaker 01:
He came in and said, the surgeons you've hired appear to be unqualified.

[00:05:35] Speaker 01:
He said the HVAC system, which is being used to supply air to the offices upstairs and the sick people downstairs, is also being used for the surgery rooms.

[00:05:45] Speaker 01:
He said you're going to have to make $5 to $10 million worth of changes to this center for it to be usable.

[00:05:50] Speaker 01:
And to suggest that these two men who helped build this building and who would be responsible for its oversight would not be affected by these kinds of disclosures I think defies logic and the human experience.

[00:06:05] Speaker 01:
Allegations in this case are very similar in their nature to those in Whitmore.

[00:06:13] Speaker 01:
They go to the heart of the agency's responsibility.

[00:06:16] Speaker 01:
These aren't disclosures about pens costing too much or people not punching their time cards.

[00:06:23] Speaker 01:
These were disclosures that says the VA is not protecting its veterans.

[00:06:26] Speaker 01:
The VA is not providing adequate medical care.

[00:06:30] Speaker 01:
Those kinds of disclosures.

[00:06:32] Speaker 01:
that go to the heart of the agency's mission, that find their way in two different letters from the special counsel to the president of the state.

[00:06:39] Speaker 01:
I don't think it's in dispute here that Mr. Krugman's disclosures were protected disclosures.

[00:06:44] Speaker 01:
I do not believe there's a dispute.

[00:06:46] Speaker 01:
They were protected disclosures.

[00:06:49] Speaker 01:
It's not in dispute.

[00:06:50] Speaker 01:
I do not believe it's in dispute.

[00:06:52] Speaker 02:
So maybe you should address how they decided against recline.

[00:06:57] Speaker 02:
The next question is,

[00:07:02] Speaker 02:
Just in a general sense, would they have fired Mr. Krugman anyway, but for his protected disclosures?

[00:07:10] Speaker 02:
Or would they have fired someone in a similar situation for the same disclosures?

[00:07:19] Speaker 01:
We submit a two-part argument to that question.

[00:07:23] Speaker 01:
One part is we don't know if they could have or would have dismissed him from his position because... But they present evidence that they would have.

[00:07:33] Speaker 02:
I mean, you and I may not be able to guess that, but we do have evidence in the record that they would have fired him, you know, even if we didn't have a whistleblower situation.

[00:07:44] Speaker 00:
Isn't there that just following up on that PSB board, I guess?

[00:07:50] Speaker 00:
They said that he was not qualified for the position even though they knew nothing about his whistleblower activity?

[00:07:56] Speaker 01:
One of the intricacies and complications of this case is what was the position?

[00:08:01] Speaker 01:
He was brought in to be an associate chief of staff, having not seen a patient in 10 years.

[00:08:06] Speaker 01:
He had no ability to practice medicine, and he was being put into this position where there are many duties that involve patient care.

[00:08:14] Speaker 01:
So there was, the record reflects, a sort of tacit understanding that he would either not be required to perform those roles or that he would be given sufficient time to move into them.

[00:08:24] Speaker 03:
I thought the record reflected that he was given an application to, you know,

[00:08:29] Speaker 03:
for the C&P exams at the time of hiring, which he filled out.

[00:08:34] Speaker 03:
And the record reflects that he did do some online training or something like that.

[00:08:39] Speaker 03:
And then the record reflects that he, for whatever reason, took his time before he got around to doing the actual in-person training to get him ready for those C&P exams.

[00:08:55] Speaker 01:
The in-person training was supposed to be provided by Alan Dysonman.

[00:08:59] Speaker 01:
And there's a very important letter that he wrote that appears on the Joint Appendix 276.

[00:09:06] Speaker 01:
He is the service chief of compensation and pension exams.

[00:09:10] Speaker 01:
He's the guy in charge of this.

[00:09:11] Speaker 01:
He's the person who was supposed to provide Dr. Krugman with the training and said he would not be able to do it until May at the earliest.

[00:09:18] Speaker 01:
Krugman gets sent up to the PSB in June.

[00:09:21] Speaker 01:
Clearly, having been given no opportunity to even qualify for the credentials, he's allegedly

[00:09:28] Speaker 01:
not using in the service of the VA.

[00:09:31] Speaker 01:
His letter.

[00:09:32] Speaker 01:
When was that person's letter?

[00:09:33] Speaker 01:
That person's letter was earlier on.

[00:09:38] Speaker 01:
And when I come back up here, I'll have that date for you.

[00:09:43] Speaker 03:
OK, I'm just trying to figure out, was that like August or September?

[00:09:46] Speaker 03:
It was the prior year?

[00:09:47] Speaker 01:
It was during the period of time in which Dr. Krugman was attempting to get privileges for PNC.

[00:09:55] Speaker 01:
But the letter doesn't speak so much about Dr. Krugman.

[00:09:58] Speaker 01:
It more generally indicates that obtaining these kinds of privileges is a massive undertaking, that for a seasoned physician, it could take up to a year, and that no one should expect to be able to bring in a new physician and start getting privileges for PNC right away.

[00:10:16] Speaker 01:
And he's the guy who would know.

[00:10:18] Speaker 01:
And he told this to Dr. Aguilar very clearly.

[00:10:23] Speaker 01:
Aguilar brings Dr. Krugman up

[00:10:25] Speaker 01:
to the PSB in June before he's had any real chance to qualify for these privileges or even try and use them.

[00:10:32] Speaker 01:
It's for that reason that we believe that the orders that he performed those exams, the orders that he do the other types of exams were illegal.

[00:10:41] Speaker 01:
And without us showing by clear and convincing evidence from the agency that he could lawfully perform those orders, there can be no basis for justifying his termination.

[00:10:53] Speaker 01:
If there are no questions, I will sit.

[00:10:56] Speaker 01:
Thank you.

[00:11:01] Speaker 02:
Ms.

[00:11:01] Speaker 02:
Onyema?

[00:11:02] Speaker 04:
Onyema, yes.

[00:11:03] Speaker 02:
Onyema.

[00:11:05] Speaker 04:
May it please the court.

[00:11:06] Speaker 04:
The board properly applied the CAR factors when it determined that the VA proves by clear and convincing evidence that it would have removed Dr. Krugman absent his protective disclosures.

[00:11:16] Speaker 04:
The board considered pertinent evidence, including conflicting evidence provided by Dr. Krugman,

[00:11:20] Speaker 04:
and also weighed in-person live testimony, making credibility determinations as to the scope of his duties.

[00:11:28] Speaker 04:
Notably, the board considered testimony from Dr. Aguilar, who noted that Dr. Krugman was expected to manage patient care and manage the supervised staff, and also that he would be expected to engage into signing off on fee basis consults.

[00:11:44] Speaker 04:
The board considered testimony from Dr. Krugman as well,

[00:11:47] Speaker 04:
who stated that he had different duties related to activating the ambulatory center and that he would not need to interact with patients.

[00:11:55] Speaker 04:
And in weighing that evidence, the board found that the testimony of Dr. Krugman was not reliable.

[00:12:00] Speaker 04:
For example, Dr. Krugman stated that he was unqualified for the position.

[00:12:04] Speaker 04:
However, after his resume was reviewed before the board, he then changed his story and indicated that he was qualified for the position.

[00:12:11] Speaker 04:
And in regards to the VA's investigation into the whistleblower allegations,

[00:12:16] Speaker 04:
Dr. Krugman did specifically challenge the circumstances surrounding his hiring.

[00:12:21] Speaker 02:
I think when he signed on with the VA, he signed some form of acknowledgement that he was qualified.

[00:12:31] Speaker 02:
But when you look at his record, it had been 20 years since he had examined anybody.

[00:12:39] Speaker 04:
Well, Your Honor, it had been...

[00:12:41] Speaker 04:
He had an active medical license.

[00:12:43] Speaker 02:
And in terms of the compensation and pension... But not in Texas.

[00:12:46] Speaker 02:
I mean, not in Texas.

[00:12:47] Speaker 04:
He did not have a Texas license.

[00:12:49] Speaker 04:
However, under 38 USC 7402, VA physicians need to have an unrestricted medical license.

[00:12:56] Speaker 04:
It doesn't need to be issued in Texas.

[00:12:58] Speaker 04:
But in regards to the compensation and pension exams, the VA actually investigated the allegation that he was not qualified for holding these privileges by noting that there's no prohibition

[00:13:11] Speaker 04:
in VA Handbook 1119, which is referenced on page 210 of the record, there's no prohibition that states a physician cannot obtain privileges in an area outside of their specialty.

[00:13:22] Speaker 02:
And the VA found that... So a doctor doesn't have to be qualified or competent in a particular field in order to handle the compensation and pension exams?

[00:13:36] Speaker 04:
Correct, Your Honor.

[00:13:37] Speaker 04:
They can demonstrate comparable competency, which is explained in the privileged delineation process and referenced on page 2DEN.

[00:13:44] Speaker 03:
Maybe the answer is maybe a particular doctor doesn't need to have an expertise in a particular area, but they at a minimum have to be a competent doctor in order to perform any kind of physical examination on someone.

[00:13:58] Speaker 04:
That's correct, Your Honor.

[00:13:59] Speaker 04:
And the VA in investigating the whistleblower allegations noted that compensation and pension exams

[00:14:04] Speaker 04:
require the physician to meet with the patient, intake historical information, conduct an examination.

[00:14:11] Speaker 04:
But then it's a diagnostic tool that's used to assess a disability level.

[00:14:15] Speaker 04:
The doctor's not providing treatment or prescribing medication.

[00:14:19] Speaker 04:
And the VA noted in its finding that the claim was unsubstantiated that any sort of bridging the gap in terms of level of experience could be done through training.

[00:14:29] Speaker 04:
And as long as the physician had submitted his application,

[00:14:33] Speaker 04:
to the PSB and it was approved and showed a level of comparable competence, that was enough to demonstrate that they could perform the compensation.

[00:14:41] Speaker 03:
Your opposing counsel is making the argument that Dr. Crookman was not qualified to do these kinds of examinations because his license was not in Texas.

[00:14:50] Speaker 03:
And so therefore, he all along told everybody, I guess Dr. Aguilar, that he really can't be doing these examinations because he's not allowed to under the law.

[00:15:04] Speaker 04:
Well, in terms of the examinations, and this is limited just to the compensation and pension and not to the fee-based consultations that I can discuss in a moment, but in regards to the compensation and pension exams, Dr. Krugman did apparently indicate to Dr. Aguilar that he did not want to be performing these examinations.

[00:15:22] Speaker 04:
This was after he had already received his privileges.

[00:15:25] Speaker 04:
He received his privileges in October of 2010 through a different facility.

[00:15:29] Speaker 04:
And when it was time to reapply for those privileges, because that facility was going to be terminating all privileges for doctors that didn't practice there, he then stated that he did not want to perform them.

[00:15:40] Speaker 03:
He had privileges to do C&P examinations at another facility when he was hired?

[00:15:46] Speaker 04:
Your Honor, he obtained those privileges for purposes of this job.

[00:15:50] Speaker 04:
But because the Harlingen facility was brand new and was not yet up and running, he was required to get the privileges at another VA facility.

[00:15:58] Speaker 04:
So he obtained those in 2010.

[00:16:00] Speaker 04:
He engaged in training to obtain them.

[00:16:04] Speaker 04:
And when he was appointed by the PSB, the appointment was effective in January.

[00:16:09] Speaker 04:
I think it's noted on page 318 of the record.

[00:16:11] Speaker 04:
The PSB noted that he did have those privileges and that he would be able to perform compensation and pension exams provided that he was at a VA facility.

[00:16:20] Speaker 04:
And when he applied to get those privileges essentially recredentialed,

[00:16:25] Speaker 04:
in March, and the PSB approved those in April.

[00:16:29] Speaker 04:
The PSB noted that he would need to undergo additional training because he had not performed any compensation and pension exams in the last 12 months.

[00:16:37] Speaker 04:
And that ended up being an issue that came up before the PSB.

[00:16:41] Speaker 04:
So in terms of the charging document as to the conduct charges against Dr. Krugman, three of the four related only to fee basis consults.

[00:16:49] Speaker 04:
However, by the time the case arrived to the PSB,

[00:16:53] Speaker 04:
there apparently was an indication that he did not want to perform the compensation and pension exams, and that was also discussed at that hearing.

[00:17:00] Speaker 04:
However, the majority of the hearing was used to discuss his failure to perform the fee-based consultations, despite the fact that there were witnesses who testified that he had received training for it and said he felt comfortable performing those examinations.

[00:17:12] Speaker 04:
However, he was not performing them in a timely fashion, which was impacting morale and also in a couple of instances could potentially endanger patients.

[00:17:22] Speaker 04:
who needed to know if they could receive care outside of the VA.

[00:17:27] Speaker 04:
If I could briefly touch on the second CAR factor, which is the existence and strength of retaliatory motive.

[00:17:35] Speaker 04:
I want to just make very clear, and I know we discussed this in our brief, this case is very distinguishable from Whitmore.

[00:17:42] Speaker 04:
In Whitmore, there was evidence that the responsible officials were actively monitoring the disclosures that the whistleblower was making and that they had expressed high concerns of that.

[00:17:52] Speaker 04:
And after the board remanded this case back to the administrative judge, the administrative judge found no evidence that that was the case here.

[00:17:59] Speaker 04:
He also determined that while the deciding official had been relocated to a different facility, he was relocated to a facility with more responsibility.

[00:18:07] Speaker 04:
So to suggest that the fact that there was essentially the evidence demonstrated that there was no significant retaliatory motive.

[00:18:16] Speaker 04:
And so that is why Whitmore is distinguishable.

[00:18:21] Speaker 04:
If the court has no further questions, we rest on our brief.

[00:18:24] Speaker 02:
Thank you very much.

[00:18:33] Speaker 01:
A compensation and pension exam is an examination performed by a VA physician that determines

[00:18:40] Speaker 01:
what level of compensation or disability payments a veteran will receive for the remainder of his or her life.

[00:18:46] Speaker 01:
It is an important obligation.

[00:18:47] Speaker 01:
It is an important duty.

[00:18:49] Speaker 01:
And it absolutely involves the practice of medicine.

[00:18:51] Speaker 01:
It involves reviewing patient history.

[00:18:53] Speaker 01:
It involves examining, often physically examining the patient and making a determination about the level of their illness or injury.

[00:19:02] Speaker 01:
It's not simply a question of whether or not Dr. Krugman wanted to perform C&P exams.

[00:19:09] Speaker 01:
He did not feel that he was qualified or even credentialed to do it.

[00:19:13] Speaker 02:
Why did he indicate on a notice that he signed that he was qualified for these exams?

[00:19:19] Speaker 01:
There were a lot of things that he signed at the outset of his employment during this period of time where him and Aguilar were trying to sort of carve out a position for him where he could oversee this ambulatory unit

[00:19:31] Speaker 01:
while not actually performing as a doctor because they both knew that he couldn't perform as a doctor.

[00:19:35] Speaker 01:
There's ample testimony.

[00:19:37] Speaker 01:
Why did he sign the form then?

[00:19:40] Speaker 01:
In this case, he signed the form to get privileges because he knew it would be in a jurisdiction where he would not be practicing.

[00:19:48] Speaker 01:
He was not concerned about getting privileges at a place where he would not be required to perform any kind of medical exam.

[00:19:54] Speaker 01:
The reason he was asked to get those privileges was to justify his salary.

[00:19:59] Speaker 01:
And I think the fact that he got those privileges so easily from the other district in Texas just goes to show what kind of problem we're dealing with here that Dr. Krugman exposed.

[00:20:10] Speaker 01:
He had not had sufficient training.

[00:20:13] Speaker 03:
I'm confused.

[00:20:13] Speaker 03:
He got privileges at another facility.

[00:20:17] Speaker 01:
Yes.

[00:20:17] Speaker 01:
He got privileges.

[00:20:18] Speaker 03:
Another facility in Texas?

[00:20:19] Speaker 01:
He got privileges in South Texas where he was not working and needed to get them in Valley Coastal.

[00:20:29] Speaker 01:
He was essentially barred in one state, not in another.

[00:20:34] Speaker 01:
It's not the same state?

[00:20:35] Speaker 01:
Well, it is the same state, but it's equivalent to having a license to practice in one area and not in a different area.

[00:20:42] Speaker 01:
He never had authority to actually perform these exams in the area where he actually worked, Valley Coastal.

[00:20:50] Speaker 01:
The P&C exams that they would have assigned to him would have required him to perform the exams without credentials and without privileges.

[00:20:59] Speaker 01:
But again, to the point of how easily he got the credentials from South Texas without any sort of demonstration of his abilities or qualifications just goes to show what the problem was that he was addressing here.

[00:21:11] Speaker 01:
The idea that these are simple exams

[00:21:18] Speaker 01:
I would direct the court's attention to Joint Appendix, page 279, which is the actual application.

[00:21:23] Speaker 01:
This is the closest thing we have to the law of when a practitioner can perform these types of exams or not, because the requirements are laid out on the form itself.

[00:21:35] Speaker 01:
And there are several areas where Dr. Krugman clearly does not meet the requirements, most notably in experience and in training, which he had not yet finished with.

[00:21:46] Speaker 03:
So lost.

[00:21:47] Speaker 03:
to get back to a job he's not qualified to do?

[00:21:50] Speaker 01:
He's being told that if he doesn't get these privileges, he's going to get fired.

[00:21:54] Speaker 01:
So he's doing whatever he can to make himself qualified.

[00:21:56] Speaker 01:
One of the things he felt he needed to do was not just take a quick PowerPoint presentation course, but to actually study with Dr. Dinaman and do rotations with him and see patients, which he, again, hadn't done in 10 years.

[00:22:09] Speaker 01:
He felt he needed to have some hands-on training, sustained hands-on training, which is exactly what Dr. Aguilar agreed to as well.

[00:22:17] Speaker 01:
That process was ongoing at the time when Dr. Aguilar decided to move for his termination.

[00:22:22] Speaker 03:
What about the fee basis consults that for some reason kept lingering on his desk?

[00:22:28] Speaker 01:
He was concerned also about his qualifications to perform fee-based consults.

[00:22:35] Speaker 01:
Ultimately, with enough training, he found that he could do them, but his experience was that he was simply a conduit.

[00:22:42] Speaker 01:
The fee-based consult would come to him, and if it was dealing with a cardiac patient,

[00:22:47] Speaker 01:
He would walk it over to the head of cardiology, who would then do all the analysis, and then he would bring it back, stamp it, and move it along.

[00:22:54] Speaker 01:
He felt that that was not a good use of his time.

[00:22:57] Speaker 02:
Is there any evidence in the record as to how quickly other doctors met their requirements to the consultation requirements?

[00:23:08] Speaker 02:
Is there any evidence, for example, that overall in the VA, there's an extraordinary large amount of time

[00:23:16] Speaker 02:
be done in providing these type of examinations?

[00:23:20] Speaker 01:
The best evidence, and I believe the only evidence in the record, is the letter from Dr. Dinaman, which was on December 30, 2010.

[00:23:27] Speaker 01:
And in that letter, he cites to an OIG investigation, in which the OIG is admonishing the VA that they should expect for it to take a year for a qualified, practicing medical professional to be able to obtain these privileges.

[00:23:43] Speaker 02:
During this time, though, while he's being asked to train, is he being asked to do the consultations?

[00:23:50] Speaker 01:
He's being asked to do fee-based consult.

[00:23:52] Speaker 01:
The fee-based.

[00:23:52] Speaker 01:
Yeah.

[00:23:55] Speaker 01:
My time has expired, but if I could simply wrap up this way.

[00:23:58] Speaker 02:
Please wrap up.

[00:24:00] Speaker 01:
Okay.

[00:24:01] Speaker 01:
The agency makes the case that he was fired because he was essentially unqualified.

[00:24:06] Speaker 01:
If he was unqualified at month nine, he was equally unqualified on day one, and it was known to everybody who hired him.

[00:24:13] Speaker 01:
There's a clear disconnect between an agency that hires somebody with known limitations and then fires somebody with known limitations nine months later.

[00:24:21] Speaker 01:
There had to have been an intervening act.

[00:24:23] Speaker 01:
We suggest the intervening act with no disclosures.

[00:24:27] Speaker 01:
Thank you.

[00:24:28] Speaker 02:
Thank you.

[00:24:29] Speaker 02:
We thank all the parties for their arguments today.

[00:24:31] Speaker 02:
This court now stands for recess.

[00:24:34] Speaker 02:
All rise.

[00:24:38] Speaker 02:
The Honorable Court is adjourned from day to day.