[00:00:05] Speaker 01: Our next case is Miller versus the Department of Justice. [00:00:18] Speaker 01: Mr. Friedman? [00:00:20] Speaker 01: He's going to do seven minutes. [00:00:25] Speaker 01: You want to reserve eight minutes for rebuttal? [00:00:29] Speaker 00: We can start out that way if there are questions that would... No, you've got to tell me beforehand how you want to do this. [00:00:37] Speaker 00: Yeah, I had figured seven minutes and then eight for rebuttal. [00:00:41] Speaker 00: Okay. [00:00:46] Speaker 01: You may proceed. [00:00:46] Speaker 00: Thank you. [00:00:47] Speaker 00: May it please the court, the administrative judge in this case issued a decision in which he [00:00:59] Speaker 00: had indicated that the agency provided a legitimate justification for the reassignment of Mr. Miller, who had been the superintendent of the industries, based upon the standard that is required under the whistleblower statute, which is the clear and convincing level of proof standard. [00:01:23] Speaker 00: And in so finding, the administrative judge relied on the testimony of one individual. [00:01:29] Speaker 00: That individual was Mr. Miller's supervisor, who was Wharton Upton. [00:01:34] Speaker 00: Wharton Upton provided testimony stating that he was justified to reassign Mr. Miller based upon discussions that he had with the Office of Internal General, the Office of [00:01:51] Speaker 00: Inspector General. [00:01:53] Speaker 00: Inspector General, thank you, who had informed him that Mr. Miller was to be taken out of his position as the superintendent of industry. [00:02:04] Speaker 00: There was no other testimony. [00:02:06] Speaker 00: There was no other documentation. [00:02:09] Speaker 00: There was no other support. [00:02:10] Speaker 05: Let me ask you this, hypothetically, because I'm trying to understand exactly what your issue with this case is. [00:02:15] Speaker 05: If that reason is true, if there was an OIG investigation and that he [00:02:22] Speaker 05: the supervisor had been asked to reassign him so that he wouldn't interfere with the OID investigation. [00:02:29] Speaker 05: Would that provide a sufficient reason for the agency established by clear and convincing evidence that it took the personnel action for a reason other than whistleblower retaliation? [00:02:39] Speaker 05: Yes. [00:02:39] Speaker 05: So the reason itself, you agree, is sufficient. [00:02:43] Speaker 00: Yes. [00:02:43] Speaker 00: So we're just talking about. [00:02:45] Speaker 00: May I say that there are [00:02:51] Speaker 00: Would that have been sufficient justification for the warden to take such an action? [00:02:59] Speaker 00: Under law, the Office of Inspector General has no supervisory authority over any staff personnel. [00:03:08] Speaker 00: So if the warden were to have said that and used that as a reason, that would have brought into question the warden's motivation. [00:03:17] Speaker 05: Right, right. [00:03:17] Speaker 05: I understand that. [00:03:18] Speaker 05: I'm just getting at this specific reason and whether the reassignment, it would be a good reason to reassign based upon a pending OIG investigation, if true. [00:03:28] Speaker 05: OK. [00:03:29] Speaker 03: So your problem, then, is that it's hearsay. [00:03:32] Speaker 00: Correct. [00:03:33] Speaker 03: And not corroborated. [00:03:35] Speaker 03: So you say that because it's hearsay, it can only be for a preponderative evidence under our decision in Cooley. [00:03:42] Speaker 03: And so it's not clear and convincing evidence. [00:03:44] Speaker 00: Do I understand that correctly? [00:03:47] Speaker 00: Well, I had cited a Supreme Court case, the case of Consolidated Edison Company of New York versus the NLRB. [00:03:59] Speaker 03: Is that an MSPB case? [00:04:01] Speaker 00: No, no, it's a Supreme Court case. [00:04:02] Speaker 03: I mean, isn't it kind of different in the MSPB? [00:04:04] Speaker 03: Because in the MSPB, the judge can rely on hearsay. [00:04:11] Speaker 03: It's just that at least our decision in Cooley and maybe some other things suggest that it's for a preponderance of evidence. [00:04:20] Speaker 00: Well, in an individual right of action, which is a whistleblower case, the agency must support its decision by clear and convincing evidence. [00:04:31] Speaker 00: I understand. [00:04:32] Speaker 00: Not simply by a preponderance of the evidence. [00:04:36] Speaker 05: But the Supreme Court... Wait, I'm still not sure that I'm getting the clear answer to Judge Tolle's question. [00:04:45] Speaker 05: Are you arguing that hearsay evidence is not sufficient to meet a clear and convincing evidence standard? [00:04:52] Speaker 00: Uncorroborated hearsay evidence is correct. [00:04:58] Speaker 00: It's legally insufficient to meet the clear and convincing evidentiary standard. [00:05:04] Speaker 05: Why is there any difference [00:05:06] Speaker 05: I mean, you agree that hearsay evidence can be used at the board. [00:05:09] Speaker 05: I mean, they've held that, we've held that. [00:05:11] Speaker 05: It's not even disputable at this point anymore, right? [00:05:16] Speaker 05: That is correct. [00:05:17] Speaker 05: So why is there any suggestion in the statute for IRA actions that hearsay evidence can't be used to establish a factual conclusion [00:05:28] Speaker 00: to support a clear and convincing evidence standard. [00:05:50] Speaker 05: So you're saying that it wasn't improper for the AJ to rely on this evidence. [00:05:54] Speaker 05: It was just not sufficient evidence for him to reach a clear and convincing conclusion. [00:06:00] Speaker 00: That is correct. [00:06:02] Speaker 00: And that was based not only on the fact that... But isn't your problem there that as a trier of fact, he gets to look at evidence before him. [00:06:12] Speaker 05: I think that the board testified at length, right? [00:06:16] Speaker 00: Yes. [00:06:16] Speaker 05: And I think there was an opportunity for cross. [00:06:20] Speaker 05: And AJ got to hear all this testimony and made a factual conclusion that in addition to the reassignment being directed by OIG, there was all the other evidence on the relevant card factors. [00:06:31] Speaker 05: And don't we review that for substantial evidence? [00:06:35] Speaker 05: Yes, correct. [00:06:37] Speaker 05: And substantial evidence is just evidence that a reasonable mind could rely on to reach a conclusion. [00:06:43] Speaker 00: after consideration of the record as a whole. [00:06:46] Speaker 00: Right. [00:06:47] Speaker 00: And if one were to consider it. [00:06:49] Speaker 05: So my question then is, if you have the testimony, which seems to be pretty clear and consistent, from the guy's supervisor saying exactly why he took this action, and we have no reason to disbelieve it, I don't think you've challenged it as being a lie, why isn't that substantial evidence? [00:07:12] Speaker 00: We have, or I have stated that the warden's testimony on corroborated hearsay is not credible. [00:07:23] Speaker 00: Absolutely. [00:07:24] Speaker 00: And the reason why it's not credible is that there was no paperwork. [00:07:30] Speaker 00: There was no written assignment. [00:07:33] Speaker 00: There was no documentation from the office of inspector general. [00:07:38] Speaker 00: There was no evidence whatsoever. [00:07:41] Speaker 05: Did you ask the AJ to make a credibility determination? [00:07:44] Speaker 00: Pardon me? [00:07:45] Speaker 05: Did you ask the AJ to make a credibility determination? [00:07:48] Speaker 00: Your Honor, I didn't handle this at the hearing level, but I don't think that that is a requirement of an advocate. [00:07:58] Speaker 05: Well, I understand that, but on appeal we're at a pretty big disadvantage. [00:08:02] Speaker 05: If you're asking us for the first time, [00:08:04] Speaker 05: to make a determination that live testimony that the AJ heard and relied on in his opinion wasn't credible. [00:08:12] Speaker 05: I mean, what basis could we have for doing that? [00:08:13] Speaker 05: When the AJ is the one that heard the live testimony, your client's other counsel had the opportunity to cross and demonstrate the incredibility of that [00:08:24] Speaker 05: testimony and the AJ didn't find it incredible. [00:08:27] Speaker 00: The sense of what I get is that if an administrative judge makes a determination on credibility, that that's sacrosanct, that it's not subject to any type of review at all. [00:08:41] Speaker 05: Well, I know, I'm not going that far. [00:08:42] Speaker 05: I mean, I know what our case law says on that. [00:08:44] Speaker 05: I mean, if an AJ makes a credibility determination that the record demonstrates is inherently implausible, [00:08:51] Speaker 05: then of course we can find that credibility determination incorrect. [00:08:55] Speaker 05: But what's inherently implausible about the warden's testimony here? [00:09:00] Speaker 00: What is inherently implausible is that the warden assigned Mr. Miller to make work for four and a half years, paying him at his GS-13 salary, which was a substantial salary, where for eight months he sat on a couch [00:09:18] Speaker 00: at the administrative offices doing absolutely nothing when he was wiping tables, when he was on the food line. [00:09:27] Speaker 05: Well, that may not have been particularly great assignments, but what's inherently plausible about that? [00:09:31] Speaker 05: I mean, you've been around this area a long time. [00:09:34] Speaker 05: OIG investigations can drag on for years. [00:09:37] Speaker 05: And if the reason was to get him out of his job because he was interfering with the investigation, then [00:09:44] Speaker 05: they've got to put him somewhere. [00:09:45] Speaker 05: And the warden testified very specifically about why he put him in various positions and then had to remove him from them because he was even still interfering. [00:09:54] Speaker 05: I don't find that inherently implausible. [00:09:56] Speaker 05: I find that you may disagree with it, but it seems like the warden was giving a very specific answer to both why he initially reassigned them and then reassigned them to other even more unpleasant or make work jobs. [00:10:08] Speaker 00: The, the, the award had absolutely no specificity whatsoever. [00:10:13] Speaker 00: zero specificity to anything that he testified to other than he was told by someone at OIG he didn't give any names, he didn't say when, he didn't give the substance of the conversation, and most importantly OIG has no involvement over the supervisory management of staff. [00:10:36] Speaker 00: So all of those things point to the fact [00:10:39] Speaker 00: that the warden's testimony is not plausible and is not credible, even though the warden said it. [00:10:45] Speaker 00: And how can one challenge someone's testimony other than to bring in facts and circumstances to show that the warden's testimony is just? [00:10:58] Speaker 05: Well, you challenge his credibility any other way. [00:11:00] Speaker 05: You ask him questions on cross or you depose them and see if there's illogical inconsistencies. [00:11:06] Speaker 05: I mean, the AJ didn't find any of this inconsistent. [00:11:09] Speaker 05: I mean, your view that there's no detail seems to be belied by his testimony, which has very detailed things about why his assignments were changed over the course of this period. [00:11:19] Speaker 05: I mean, it's not that he just willy-nilly said, well, I'm going to put you on the food services line, and then I'm going to take you off and put you monitoring phone calls. [00:11:26] Speaker 05: And then he gave specific reasons for why he made each of those changes. [00:11:30] Speaker 05: Isn't that detailed consistency? [00:11:36] Speaker 00: Do not re recall the award and testifying, giving, giving specific reasons as to why he had been taken from job to job to, to, to, to a job. [00:11:49] Speaker 03: But even if the word said, he said, um, for example, when he took them off the table duty, it was because there, he said that he was told to move them again because he was talking to people during the lunchtime. [00:12:04] Speaker 03: that interfering with the investigation. [00:12:08] Speaker 03: And so, and he explained it in great detail. [00:12:11] Speaker 03: And so does that corroborate, the question is, does that, the fact that undoubtedly there was an investigation and then later there was the warden testified about Mr. Miller interfering with the investigation when he was on cafeteria duty and interfering with the investigation later. [00:12:32] Speaker 03: when he was monitoring prisoner telephone calls, does that corroborate the initial reason for why? [00:12:40] Speaker 00: Pure, unadulterated, uncorroborated hearsay. [00:12:44] Speaker 00: That's all it is. [00:12:46] Speaker 05: But we've gotten beyond that point, right? [00:12:47] Speaker 05: You've agreed that the MSPB can rely on hearsay. [00:12:52] Speaker 00: The MSPB can rely on hearsay as a component. [00:12:56] Speaker 00: Even to support a clear and convincing evidence standard. [00:13:01] Speaker 00: as a component of the entire picture. [00:13:04] Speaker 00: But to say that an uncorroborated hearsay statement standing alone without anything else can support a clear and convincing standard that is contrary to the rule. [00:13:17] Speaker 05: So in other words, you want us to impose a corroboration standard in these whistleblower cases when it's the testimony of a supervisor based on what you call hearsay? [00:13:29] Speaker 00: When the warden had the wherewithal, when the agency had the wherewithal. [00:13:33] Speaker 00: Have we done that in any other? [00:13:35] Speaker 05: I mean, we have a clear and convincing evidence standard in our patent cases. [00:13:42] Speaker 05: And we review those for substantial evidence, too. [00:13:45] Speaker 05: We don't have a heightened standard just because they're substantial evidence. [00:13:51] Speaker 05: I mean, it seems to me you're requiring us to impose a special burden here in the whistleblower case. [00:13:56] Speaker 05: That's not traditional in our review of other MSPB cases. [00:14:00] Speaker 00: No, I am not. [00:14:02] Speaker 00: What I'm saying is that uncorroborated hearsay by one person to justify an adverse personnel action does not, as a matter of law, rise to the clear and convincing standard. [00:14:17] Speaker 05: So you are saying that hearsay cannot be clear and convincing evidence, standing alone. [00:14:24] Speaker 00: I am saying that uncorroborated [00:14:26] Speaker 00: hearsay standing alone without any other evidence at all. [00:14:30] Speaker 00: Yes, that is what I'm saying. [00:14:32] Speaker 00: That uncorroborated hearsay standing alone cannot support the clear and convincing evidentiary standard, especially in the face of all of the evidence that I had mentioned in the brief. [00:14:47] Speaker 03: I want to ask you one question. [00:14:49] Speaker 03: Okay. [00:14:50] Speaker 03: So what about the fact that there is an investigation ongoing already? [00:14:55] Speaker 03: So there's already an OIG investigation. [00:14:58] Speaker 03: And then there's the whistleblower activity. [00:15:01] Speaker 03: How does that play into it? [00:15:02] Speaker 03: I mean, the board seemed to mention that and emphasize it in its decision, the initial decision. [00:15:07] Speaker 03: AJ emphasized that several times as being in addition to the fact that there was the warden's testimony that Mr. Miller was being reassigned because there was a concern he would interfere with the investigation. [00:15:22] Speaker 03: There was an investigation. [00:15:24] Speaker 03: Somebody else had already whistle-blowed, I guess, and Melissa Ponsio, I guess, had already reported some activity. [00:15:34] Speaker 03: So how does that play into it, if there already was an investigation? [00:15:39] Speaker 00: How that plays into it is there's no evidence. [00:15:42] Speaker 00: There is zero documentary. [00:15:43] Speaker 05: You're not disputing today that there was an allegation. [00:15:46] Speaker 05: Pardon me? [00:15:47] Speaker 05: You're not disputing that there was an investigation, are you? [00:15:49] Speaker 00: No. [00:15:50] Speaker 00: There is zero documentary evidence. [00:15:52] Speaker 00: There is zero testimonial evidence except for the warden. [00:15:56] Speaker 00: That's all. [00:15:56] Speaker 00: And everything was uncorroborated hearsay. [00:16:00] Speaker 03: But the investigation was ongoing before the December 16th disclosure by Mr. Miller. [00:16:06] Speaker 03: You agree with that, right? [00:16:13] Speaker 03: The OIG showed up on December 15th. [00:16:16] Speaker 03: And Mr. Miller stayed home from work that day. [00:16:20] Speaker 03: The next day, he came back to work. [00:16:22] Speaker 03: and he reported what he viewed to be sabotage. [00:16:26] Speaker 03: But that was the day after OIG arrived, right? [00:16:31] Speaker 00: Mr. Miller testified that he was told to stay home by the warden because the OIG was coming in and they didn't want Mr. Miller there at the same time. [00:16:47] Speaker 00: There is evidence of the warden's motive. [00:16:52] Speaker 00: evidence of the warden's motive that he didn't want Mr. Miller present while the OIG investigation was going. [00:17:08] Speaker 00: But on the 16th, Mr. Miller told the warden, Warden Upton, that he was going to contact [00:17:18] Speaker 00: The chief of contracting, the military chief of contracting. [00:17:22] Speaker 03: I just want to go back to my question for a minute because I, you know, this case is really hard. [00:17:27] Speaker 03: Okay. [00:17:28] Speaker 03: So I'm just trying to figure out what to think here. [00:17:31] Speaker 03: And so what I had said is I said, what about the fact that the board relied on the existence of an investigation prior to the December 16th disclosure by Mr. Miller? [00:17:42] Speaker 03: You don't disagree that there was an investigation by OIG already, right? [00:17:48] Speaker 03: Your response was, oh, that's hearsay, hearsay. [00:17:51] Speaker 03: But there was an investigation that was already occurring before Mr. Miller's December 16th disclosure. [00:17:57] Speaker 00: Okay. [00:17:59] Speaker 00: My understanding of the board's decision was that the board concluded that Mr. Miller may protect disclosures and that there were adverse actions taken against him. [00:18:11] Speaker 00: The adverse action being that on December the 16th he was told that he was being removed [00:18:16] Speaker 00: as the superintendent of industry. [00:18:20] Speaker 00: So I think that he satisfied the two of the three components that he had to have satisfied. [00:18:28] Speaker 00: And then it was up to the agency to establish by clear and convincing evidence that taking him out of the position, not withstanding the fact that there was an investigation going on, was justified. [00:18:43] Speaker 00: by the clear and convincing evidentiary standard. [00:18:45] Speaker 03: Okay, I have one more question for you very quick. [00:18:48] Speaker 03: I noticed that the case is Miller against the Department of Justice, and that the car factor, as I understand it, that second car factor is the existence and strength of any motive to retaliate on the part of agency officials who were involved in the decision. [00:19:01] Speaker 03: Yes. [00:19:01] Speaker 03: Who should those agency officials be? [00:19:03] Speaker 03: Should they be the warden? [00:19:05] Speaker 03: Should they be OIG? [00:19:06] Speaker 03: Why is the case against the Department of Justice? [00:19:09] Speaker 03: The warden is not an employee of the Department of Justice. [00:19:13] Speaker 03: So who was the decision maker here? [00:19:16] Speaker 00: The warden is not an employee? [00:19:18] Speaker 03: I don't think so. [00:19:19] Speaker 03: Is he an employee of the Department of Justice? [00:19:21] Speaker 05: Isn't the warden an employee of the Bureau of Prisons, which is a subcomponent of the Department of Justice? [00:19:26] Speaker 03: Oh, OK. [00:19:26] Speaker 00: I just didn't know. [00:19:32] Speaker 00: And the warden? [00:19:34] Speaker 00: The warden had a motivation to get Miller out of the position and the motivation was that the warden needed to have the industry functioning. [00:19:50] Speaker 00: He needed to have the inmates working and he was concerned that when Miller raised the issues of sabotage, the issues of [00:20:04] Speaker 00: defective components of the army helmet being intermixed with the good components and that it could have affected the military members. [00:20:16] Speaker 00: He was concerned that there would have been a full-scale investigation and a shutdown of the function of manufacturing helmets. [00:20:30] Speaker 00: So there was a definite motivation. [00:20:33] Speaker 01: Mr. Friedman, that's OK. [00:20:36] Speaker 01: You exceeded your time, but it's due to our question. [00:20:39] Speaker 01: And I'll restore you to three minutes of rebuttal time, OK? [00:20:43] Speaker 01: Thank you. [00:20:47] Speaker 01: Mr. Norway. [00:20:49] Speaker 04: May it please the court. [00:20:51] Speaker 04: This court should affirm the board's decision because it's supported by substantial evidence. [00:20:55] Speaker 04: I think the questions of Judge Hughes [00:20:57] Speaker 04: really hit the nail on the head. [00:20:59] Speaker 04: We're looking at here whether or not the appeale, he's challenging the factual determinations of the board. [00:21:06] Speaker 04: And in the patent cases, in patent context, you have a very clear, I guess, sharp description of the type of evidence that would meet this. [00:21:16] Speaker 04: And I'm just going to quote from the Juicy Whip case, 292 Fed 3rd, 728. [00:21:22] Speaker 04: And in that case, the standards of substantial evidence review of a jury finding [00:21:27] Speaker 04: is a finding of fact must stand unless the appellant shows on the entirety of the record, including that which detracts from the weight of the favorable evidence, and taking into account the required quantum of proof that no reasonable fact finder could have made that finding. [00:21:43] Speaker 04: And here we have a decision of the board that looked at the record as a whole, and it made a reasonable determination. [00:21:50] Speaker 01: There is no other evidence, is there, other than the phone call that Warden [00:21:57] Speaker 01: of Shawhead. [00:21:58] Speaker 01: I mean, there's no email that corroborates that phone call. [00:22:02] Speaker 01: There's no letters, meetings, or anything of that nature. [00:22:07] Speaker 04: You're correct, Your Honor, that there's no evidence of the substance of the conversation that the warden had with the OIG, especially the OIG conversation the day in December when he was asked to be removed from the factory premises. [00:22:24] Speaker 01: So that's all we have is the warden's recounting of his memory of what the conversation was about. [00:22:32] Speaker 04: Correct. [00:22:32] Speaker 04: But we do have corroborating evidence, as in the warden stated in December, that December day, to Mr. Miller why he was being asked to be removed from that. [00:22:43] Speaker 04: And that is recounted in Mr. Miller's email. [00:22:47] Speaker 03: But doesn't his email talk about the December 15 occurrence, where he was asked to stay home for the day? [00:22:53] Speaker 03: That's what he discusses in his email. [00:22:56] Speaker 03: He doesn't discuss that the next day the warden told him that he was going to be reassigned permanently because there was a concern by OIG that he would interfere with the investigation. [00:23:09] Speaker 03: There's nothing like that. [00:23:12] Speaker 04: Not in the email, no. [00:23:13] Speaker 04: Correct, Your Honor. [00:23:14] Speaker 04: The warden does later testify that after he had a conversation with OIG in December, [00:23:22] Speaker 04: He then reached out and spoke with the Unifcor managers, specifically Mr. Booth, and they collectively made a decision to ensure that Mr. Miller was not brought back on the premises until, and I think this is the phrase he used, until this thing plays out. [00:23:39] Speaker 03: Why is it that with those other people being involved in making the decision, including OIG and the other folks that you just mentioned, [00:23:49] Speaker 03: Why is it that the warden was the only one who testified? [00:23:53] Speaker 04: Well, Mr. Boos testified also. [00:23:55] Speaker 04: And he was Mr. Miller's supervisor from Unicor. [00:24:00] Speaker 04: So he was sort of the reporting manager in the Unicor side of the federal prison industries. [00:24:06] Speaker 03: But did he in any way corroborate the warden's decision? [00:24:11] Speaker 04: He did corroborate the testimony that goes to why the [00:24:19] Speaker 04: Unicorn's Chinat Command is separate from the warden's supervisory authority. [00:24:24] Speaker 04: And I'm looking at 450 to 456 in the record and 488 to 489. [00:24:31] Speaker 04: And he also discussed a little bit of some of the collateral duties that Mr. Miller was assigned to, specifically that Mr. Miller was available [00:24:41] Speaker 04: to have just like any other correctional officer. [00:24:44] Speaker 03: But he didn't talk about the meeting on December 16th where he talked to the warden and they talked about how the OIG had told the warden that Mr. Miller should be, or they requested or directed that Mr. Miller be reassigned. [00:24:59] Speaker 03: They didn't, Mr. Boos never talked about that, right? [00:25:02] Speaker 04: Not that I can recall off the top of my head, Your Honor. [00:25:05] Speaker 04: I can look back at the record and file something after the hearing if you feel that would be [00:25:11] Speaker 03: I haven't seen anything, but okay. [00:25:15] Speaker 01: So we've been focusing on the December disclosure, but there was an October disclosure too. [00:25:23] Speaker 04: That is correct, Your Honor. [00:25:24] Speaker 01: And does that predate the OIG investigation? [00:25:27] Speaker 04: It's a little unclear on the record. [00:25:29] Speaker 04: I believe that it did not. [00:25:32] Speaker 04: But we don't know. [00:25:35] Speaker 01: Correct. [00:25:35] Speaker 01: The record doesn't reflect that. [00:25:38] Speaker 01: Correct. [00:25:40] Speaker 04: The testimony about the October disclosure comes in through Mr. Miller's testimony and I believe there's also some testimony from the warden about that disclosure. [00:25:52] Speaker 04: It's a little unclear what happened in that October meeting because it was with Mr. Goof and then later on in some of the papers there was a suggestion that the warden was also present [00:26:06] Speaker 04: during the October disclosure. [00:26:08] Speaker 01: But it could have been that the investigation, the OIG investigation, started after the October disclosure. [00:26:13] Speaker 01: That could be, Your Honor. [00:26:14] Speaker 01: But we don't know, because the record's not complete on that. [00:26:17] Speaker 01: It doesn't answer that question. [00:26:19] Speaker 04: Correct, Your Honor. [00:26:20] Speaker 04: And the board did not make a determination as to the timing of those two, I guess, disclosures that began. [00:26:27] Speaker 01: No, but they did make a recommendation, or they did find that the two disclosures met the timeliness requirement for a whistleblower disclosure. [00:26:37] Speaker 04: Correct, Your Honor. [00:26:38] Speaker 04: The board did make a determination that under the knowledge timing test, at least the initial October disclosure met the test. [00:26:48] Speaker 04: And that is why we're here today on the last part of the Whiskblower case. [00:26:54] Speaker 04: And that is whether or not the Department of Justice demonstrated by clearing convincing evidence that it would have otherwise. [00:27:01] Speaker 01: So at that point, once the burden has shifted, shouldn't it [00:27:06] Speaker 01: Should it have been the Department of Justice that should have come up with evidence to corroborate or to have cross-examined the warden on that particular point or to establish the record to back up Mr. Warden's recollection of the phone call? [00:27:22] Speaker 04: Well, the warden clearly testified about his recollection of what he was told, and he supported his reasoning. [00:27:33] Speaker 04: And I'm thinking at 582 in the record. [00:27:35] Speaker 04: He talked about removing Mr. Miller because he was worried about a compromise in the integrity of the investigation. [00:27:43] Speaker 01: That he was worried about that or that the OIG was? [00:27:47] Speaker 04: I don't recall off the top of my head what exactly the testimony was. [00:27:49] Speaker 01: The record's really not complete on that point either, is it? [00:27:54] Speaker 04: There is the testimony on that page that does talk about some of his reasoning for, some of the warden's reasoning for the reassignment. [00:28:04] Speaker 04: And we also have the warden's testimony on 567 where he was directly asked if he was intending to harass Mr. Miller with his reassignment, and the warden testified no. [00:28:19] Speaker 04: So we have evidence on the record about the reason. [00:28:26] Speaker 04: It is just testimonial reason. [00:28:29] Speaker 04: We don't have OIG emails directing the warden to do that. [00:28:34] Speaker 03: I want to make sure I ask this question. [00:28:41] Speaker 03: It seems to me that in four and a half years of being reassigned to different places, at some point a letter would have been sent to Mr. Miller formalizing his reassignment, as it was, for example, pages A170 and 171 when he was reassigned after the factory closed down. [00:29:01] Speaker 03: In your experience, would there normally be a reassignment letter in circumstances like this? [00:29:07] Speaker 04: Well, Mr. Miller, prior to, and that's what I would point, the parts of the record that Your Honor just pointed to is what I would point to to demonstrate the employment decisions that were being made. [00:29:20] Speaker 04: Because until then, he was still a member of the executive committee of the medium security prison at FCC Beaumont. [00:29:31] Speaker 04: Um, he was still there. [00:29:33] Speaker 04: He was asked by the warden to stay outside of the prison walls. [00:29:38] Speaker 04: And, and this, there, there's testimony. [00:29:40] Speaker 05: So did, during that four and a half year period, did his position description change? [00:29:45] Speaker 05: Did he get any new SF-51s? [00:29:48] Speaker 05: No, Your Honor. [00:29:49] Speaker 05: What is, what changed were his temporary job duties? [00:29:52] Speaker 04: Correct, Your Honor. [00:29:55] Speaker 04: And, um, there is testimony from the warden where, where [00:29:59] Speaker 04: Uh, he describes when, when individual correctional officers are under investigation, um, that's generally the procedure they do. [00:30:07] Speaker 04: They'll ask them to go outside. [00:30:09] Speaker 04: They'll ask them to do. [00:30:10] Speaker 03: So in those circumstances, there would not be any sort of written documentation of what was happening in those circumstances. [00:30:17] Speaker 03: I mean, the record doesn't reflect that, but you're suggesting that. [00:30:20] Speaker 03: This is normal to not have a written record at all to reflect the different tasks that he was assigned to and why it was that he was being assigned to these tasks? [00:30:30] Speaker 04: My understanding is that there's no formal written record. [00:30:33] Speaker 04: I mean, here we don't have any emails in the record at all. [00:30:37] Speaker 01: Is it your understanding there's an informal record on this? [00:30:43] Speaker 04: In this case, no. [00:30:44] Speaker 04: I have no understanding whatsoever, Your Honor, that there was any emails. [00:30:48] Speaker 04: There is an indication. [00:30:50] Speaker 04: I think on page 546 or 44, where the warden refers to some email communications. [00:31:00] Speaker 04: And it's unclear to me if he was referring to Mr. Miller's email communication or some other emails. [00:31:08] Speaker 01: Who made the decision to reassign Mr. Miller? [00:31:13] Speaker 01: Was it the OIG or was it the warden? [00:31:18] Speaker 04: The warden, Your Honor. [00:31:20] Speaker 01: And on what basis did the warden make that decision? [00:31:23] Speaker 04: The warden made the decision to reassign Mr. Miller because he was asked to do so by OIG. [00:31:29] Speaker 01: So OIG asked him to make the transfer? [00:31:35] Speaker 01: Or to take him out of his present duties and put him somewhere else? [00:31:41] Speaker 04: The warden was asked to remove Mr. Miller from the premises of the factory [00:31:46] Speaker 04: So OIG. [00:31:47] Speaker 01: OK, then after that, after he was transferred out of his regular duties, are you saying that OIG made that decision? [00:31:54] Speaker 04: In what decision is that, Your Honor? [00:31:57] Speaker 01: To transfer Mr. Miller, to take him out of being superintendent of prison industries and to put him wherever else they put him, monitoring prison phone calls or cleaning the tables at the mess hall. [00:32:10] Speaker 04: The collateral duties that were assigned to Mr. Miller were assigned to him by the warden. [00:32:15] Speaker 04: And there was a period. [00:32:16] Speaker 01: On what basis did he make that assignment? [00:32:19] Speaker 04: As he would assign collateral duties to any other correctional officer. [00:32:24] Speaker 01: No, but did he make that decision to make that assignment on the basis of what something OIG told him? [00:32:33] Speaker 04: To the particular collateral duties that were assigned, Your Honor? [00:32:38] Speaker 04: I guess I don't understand your question. [00:32:39] Speaker 01: OK. [00:32:40] Speaker 01: The warden reassigned or assigned [00:32:43] Speaker 01: Mr. Miller outside of his regular normal duties, correct? [00:32:49] Speaker 01: Yes, your honor. [00:32:50] Speaker 01: Okay. [00:32:51] Speaker 01: On what basis was that reassignment made? [00:32:55] Speaker 01: And you're telling me that it was Warden Upshaw that made that decision. [00:32:59] Speaker 04: Correct, your honor. [00:32:59] Speaker 01: On what basis did he make that decision? [00:33:03] Speaker 04: In his capacity as the Warden of the President. [00:33:06] Speaker 01: No, no, not his capacity. [00:33:09] Speaker 01: On what basis? [00:33:11] Speaker 01: I mean, was it something specific? [00:33:13] Speaker 01: Is it because OIG told him to do that? [00:33:16] Speaker 04: No, Your Honor. [00:33:17] Speaker 04: I don't think there's any indication in the record that OIG directed the warden to have Mr. Miller assigned. [00:33:26] Speaker 01: Then it's Warden Upshaw that made up his own mind that Mr. Miller was interfering with investigations? [00:33:34] Speaker 04: Well, there were a series of conversations with OIG [00:33:38] Speaker 04: In form, for instance, Judge Stoll mentioned the standing main line. [00:33:45] Speaker 04: The warden did testify that he was told by OIG that it had an indication that Mr. Miller was using that time to learn information about the investigation. [00:33:58] Speaker 04: So learning that. [00:34:01] Speaker 01: Is that the same or is that what you mean by interference with the investigation? [00:34:09] Speaker 04: Well, learning of the investigation. [00:34:11] Speaker 04: Yes, Your Honor. [00:34:11] Speaker 01: That's interfering with the investigation? [00:34:14] Speaker 04: Well, Mr. Miller was being interviewed by the OIG. [00:34:20] Speaker 04: He was being interviewed in presence of AUSAs. [00:34:23] Speaker 04: He was having Miranda rights. [00:34:25] Speaker 01: Was he the only person being interviewed? [00:34:28] Speaker 04: No, in this record. [00:34:29] Speaker 04: There's other people being investigated? [00:34:33] Speaker 04: Yes, Your Honor. [00:34:34] Speaker 01: And do you know the scope of the investigation? [00:34:36] Speaker 01: Were there other people in other prisons also being investigated? [00:34:40] Speaker 04: I do not know the scope of the investigation, Your Honor. [00:34:44] Speaker 04: But in this case, it goes on from that. [00:34:47] Speaker 04: And the second one is the removal from the inmate telephone calls. [00:34:50] Speaker 03: I want to ask you again. [00:34:51] Speaker 03: You were talking about the burden of proof. [00:34:54] Speaker 03: And you cited the Juicy Whip case. [00:34:56] Speaker 03: And you said that this court, in the government's view, what this court has to do [00:35:01] Speaker 03: is and look at whether there's substantial evidence taking into account the required quantum of proof. [00:35:08] Speaker 03: So in other words, as you said in your brief at page 15, we are supposed to see whether the Department of Justice proved by clearing convincing evidence that would have reassigned Mr. Miller even in the absence of his protected disclosures. [00:35:22] Speaker 03: We have to look at whether that is supported by substantial evidence. [00:35:25] Speaker 03: So we have to consider the quantum of proof below when we're looking at substantial evidence. [00:35:29] Speaker 03: Is that the government's position? [00:35:31] Speaker 04: Yes, Your Honor. [00:35:32] Speaker 04: You take that into account when you're reviewing the record as a whole. [00:35:37] Speaker 04: And the review is that whether a reasonable fact finder could have made the factual finding that it did. [00:35:44] Speaker 05: And your view is based upon the warden's testimony that a reasonable fact finder could have believed the warden's testimony, that he reassigned him because of these investigations and his continued interference with these investigations. [00:35:58] Speaker 05: And that's substantial evidence. [00:35:59] Speaker 05: Correct. [00:36:01] Speaker 05: Arguably, you could have done a better job by providing corroboration for this testimony. [00:36:09] Speaker 05: Unless we impose a corroboration requirement that doesn't appear to be in the law, his testimony can be substantial evidence. [00:36:16] Speaker 04: That is exactly correct, Your Honor. [00:36:18] Speaker 04: And here we have the word. [00:36:20] Speaker 03: I'm sorry. [00:36:21] Speaker 03: Do you agree? [00:36:22] Speaker 03: What is your position on whether hearsay testimony alone [00:36:25] Speaker 03: can be clear and convincing evidence. [00:36:28] Speaker 03: Is it just, as was said in Cooley, that it can be accepted as preponderant evidence, or could it also be accepted as clear and convincing? [00:36:36] Speaker 03: And if you think that it could be accepted as clear and convincing, what's your basis for that? [00:36:40] Speaker 04: Well, I think it can be accepted as clear and convincing. [00:36:44] Speaker 04: And it depends on the record as a whole. [00:36:48] Speaker 04: You're looking at the record as a whole, and considering the correct [00:36:54] Speaker 04: a quantum of proof whether or not the board could reasonably reach its decision. [00:37:00] Speaker 04: And so if there is, and I'm just going to go through some hypotheticals. [00:37:04] Speaker 04: I mean, here we have a clear, consistent statement by the warden about the reason why he reassigned them. [00:37:13] Speaker 04: And we could have inconsistent testimony, for instance, or reasons to doubt the warden's credibility, which it would [00:37:23] Speaker 04: could eventually lead this court along a spectrum to say, no, you can't accept that testimony under this quantum of proof. [00:37:32] Speaker 04: But we don't have that here. [00:37:33] Speaker 01: Did the warden make the decision? [00:37:35] Speaker 01: And I know I've asked this again. [00:37:36] Speaker 01: I just want to be clear on this, because this is important. [00:37:39] Speaker 01: Did the warden make the decision to make the reassignment based on suggesting by OIG that he'd be reassigned? [00:37:48] Speaker 04: The initial reassignment from the factory, yes, Your Honor. [00:37:52] Speaker 01: Came from OIG? [00:37:53] Speaker 01: Yes. [00:37:54] Speaker 04: OK. [00:37:56] Speaker 04: If Your Honors have no further questions for these reasons and the reasons in our brief, we ask that you affirm. [00:38:06] Speaker 01: Mr. Friedman, I'm going to restore you three minutes for rebuttal. [00:38:10] Speaker 00: I appreciate that. [00:38:12] Speaker 00: I do want to address some matters that Judge Hughes raised. [00:38:17] Speaker 00: when he said an administrative judge makes a factual determination based on the record and if it's a reasonable, I'm characterizing now, but a reasonable fact finder could find someone credible. [00:38:35] Speaker 00: And credibility involves a whole host of different issues. [00:38:40] Speaker 00: In this case, in order to get to the American Citizens Protection Board, [00:38:44] Speaker 00: An individual would have to have first contacted the Office of Special Counsel. [00:38:48] Speaker 00: The Office of Special Counsel has trained investigators. [00:38:52] Speaker 00: They make inquiries. [00:38:53] Speaker 00: They contact the agency. [00:38:55] Speaker 00: If the Office of Special Counsel declines to go forward with a whistleblower action, then the individual who brought the allegation to the Office of Special Counsel can file an appeal to the Emergency Assistance Protection Board. [00:39:11] Speaker 00: The agency was represented by a skilled attorney. [00:39:19] Speaker 00: The agency has, I'm sure, had other whistleblower complaints filed against it. [00:39:27] Speaker 00: The agency had full knowledge of what its burdens were. [00:39:31] Speaker 00: The agency had full knowledge of what the standards were and what the obligations of the appellant were and the obligations of the agency. [00:39:41] Speaker 00: for the agency to act dumb and say the warden's testimony, which is unsubstantiated, even though we have the wherewithal to bring in whomever we wish to support or corroborate the warden's testimony. [00:39:55] Speaker 05: Isn't that a question for the AJ? [00:39:58] Speaker 05: Unless we adopt a rule that unsubstantiated testimony can't meet the clear and convincing evidence standard, then whether the AJ determines this testimony, which [00:40:09] Speaker 05: in your view as un-substantiated is enough, is for that fact-finder. [00:40:13] Speaker 05: But our review isn't to second-guess that de novo. [00:40:16] Speaker 05: It's assuming it's right or whether it's plausible. [00:40:20] Speaker 00: Is it substantial evidence? [00:40:22] Speaker 00: So as I understand what you're saying, Judge Hughes, you're saying that the agencies on corroboration... I mean, I agree. [00:40:31] Speaker 05: They put themselves at the risk because they didn't put on very good evidence in this case. [00:40:35] Speaker 05: Or I wouldn't say they didn't put on very good evidence. [00:40:37] Speaker 05: They didn't put on evidence beyond the Worden's testimony. [00:40:40] Speaker 05: And the Worden's the guy that did the reassignments. [00:40:42] Speaker 05: It's understandable, but they could have put in documents and the like. [00:40:45] Speaker 00: But what I gather you're saying is that an administrative judge who makes a decision as a reasonable fact finder that based on unsubstantiated, uncorroborated hearsay testimony can rise to the clear and convincing evidentiary standard. [00:41:05] Speaker 05: So hypothetically, I know there wasn't expressed credibility finding here, but suppose you had cross-examined him about whether he was lying or not and put that at issue, and the board judge said, I listened to his testimony. [00:41:20] Speaker 05: I've looked at all the facts and the records. [00:41:22] Speaker 05: Given that, I believe his story. [00:41:24] Speaker 05: His story was consistent, clear, and credible. [00:41:26] Speaker 05: Would that be sufficient evidence to support a clear and convincing evidence? [00:41:30] Speaker 05: No. [00:41:30] Speaker 05: So you want us to establish a rule of testimony without [00:41:34] Speaker 05: corroboration can't support the clear and convincing evidence standard. [00:41:37] Speaker 00: No, I do not want to establish an evidentiary rule. [00:41:41] Speaker 00: And even though an administrative judge doesn't rule from on high, an administrative judge has to justify his or her ruling. [00:41:53] Speaker 00: For instance, if an administrative judge states, I looked into the eyes of the witness, and I believe the witness was truthful, [00:42:02] Speaker 00: And that was the rationale that the administrative judge used and totally disregarded all of the other evidence showing the implausibility of the witness's testimony. [00:42:15] Speaker 00: Would that give rise to a finding which could have been sustained? [00:42:20] Speaker 00: Now, what is the other evidence, though? [00:42:23] Speaker 05: I mean, it seems to me all you're doing is pointing to a lack of corroborating evidence. [00:42:28] Speaker 05: You're not pointing to any [00:42:30] Speaker 05: positive evidence that directly contradicts the Worden story. [00:42:34] Speaker 00: It is the agency's burden to show by clear and convincing evidence. [00:42:38] Speaker 00: A burden is not established by unsubstantiated, uncorroborated hearsay evidence. [00:42:46] Speaker 00: And my last argument was that the administrative, I think the emergency assistance protection board concluded that Worden Upton's testimony was not hearsay. [00:42:58] Speaker 00: That is a clear error of law. [00:43:01] Speaker 00: And the Merit Assistance Protection Board based its decision to uphold the administrative judge's finding on the legal principle that Warden- They denied the petition for review though, right? [00:43:15] Speaker 05: So we're reviewing the AJ's decision, not the denial of the petition for review. [00:43:22] Speaker 00: It is my understanding that there is a review of [00:43:29] Speaker 00: There is a review of the decision to see whether there was substantial evidence supporting the conclusion that the agency had shown by clear and convincing evidence that the reassignment was just justified. [00:43:48] Speaker 00: Okay. [00:43:50] Speaker 01: Go ahead. [00:43:51] Speaker 03: I just wanted to know, so if we were to affirm, that's the end of the case, right? [00:43:56] Speaker 03: Now if we were to, is that right? [00:44:00] Speaker 03: If we were to reverse or send the case back, let's just say we were to reverse, then what happens below? [00:44:07] Speaker 03: I mean, what's the remedy that Mr. Miller is seeking? [00:44:10] Speaker 03: Because he never changed job positions. [00:44:15] Speaker 03: He always had the same salary. [00:44:17] Speaker 03: So what is the remedy? [00:44:19] Speaker 00: Well, first of all, he [00:44:24] Speaker 00: He has substantial counsel fees from the attorney who had represented him in the earlier case. [00:44:33] Speaker 00: And he obviously has attorney fees here. [00:44:38] Speaker 00: At this juncture, he is retired. [00:44:47] Speaker 00: But there was an appeal filed. [00:44:55] Speaker 00: he was looking for a finding which would vindicate him. [00:45:02] Speaker 03: Okay, I mean, you mentioned fees. [00:45:05] Speaker 03: Look, I don't know how things work with whistleblower cases. [00:45:09] Speaker 03: Are you saying that there's something that if there's a finding in his favor that he gets his fees? [00:45:13] Speaker 00: Yes, that is correct. [00:45:17] Speaker 01: Okay, I think we have your argument and hopefully you'll make a [00:45:22] Speaker 01: Have a safe trip back home you were caught this morning on the ink and crack right, okay? [00:45:29] Speaker 01: All right, well that's the conclusion of today's arguments. [00:45:31] Speaker 01: We thank all counsel you take all decisions under advisement