[00:00:18] Speaker ?: OK. [00:00:37] Speaker 01: Next case for argument is 15-3191, Mithun versus BVA. [00:00:43] Speaker 01: Are we all set? [00:00:45] Speaker ?: OK. [00:00:45] Speaker 01: Good morning. [00:00:45] Speaker 00: Good morning, Your Honors. [00:00:46] Speaker 00: Kurt Kamisky for the appellant, Dr. Francis Smith, who's accompanying me here today to continue to look for that firm belief that the agency would have done the same thing in the absence of his protected disclosure. [00:01:04] Speaker 00: Initially, I would tell you that this is an appeal from two Merit Systems Protection Board decisions, two administrative judge decisions that were both appealed [00:01:15] Speaker 00: the first board remaining it back to the administrative judge and then the second MSPB decision being appealed to you all here at the Federal Circuit. [00:01:26] Speaker 00: You're presented with somewhat of a, or at least it's been filed, I'm not sure if it's ruled on by this panel, an issue of the agency supplementing their discovery responses. [00:01:43] Speaker 00: We haven't invoked the jurisdiction of this court lightly to bring this appeal. [00:01:47] Speaker 00: We also. [00:01:48] Speaker 02: Well, I use your motion to compel. [00:01:51] Speaker 02: So you want us to take this evidence in the first instance, require the government to come forward with it, and consider it as part of this appeal? [00:01:58] Speaker 02: Or has it never been adjudicated below? [00:02:00] Speaker 02: Is that what you're seeking? [00:02:02] Speaker 00: It has not been considered below this evidence that we ask that. [00:02:05] Speaker 02: Do you have any other example? [00:02:07] Speaker 02: Have you ever done that? [00:02:09] Speaker 00: I have not done that, no. [00:02:13] Speaker 00: made a FOIA request. [00:02:14] Speaker 00: We asked the board to order. [00:02:16] Speaker 00: We asked the agency to provide us with the information. [00:02:18] Speaker 00: We asked the board to order the agency to provide us with the information. [00:02:22] Speaker 00: Our last step was presenting that issue to the Federal Circuit. [00:02:27] Speaker 00: You know, if that would happen and they would be ordered to provide the information that we think is relevant and material to this case, we would respectfully suggest that a short period of time would be allowed for us to [00:02:43] Speaker 02: submit what should happen in light of that why isn't the more appropriate thing is that this case concludes you go back to the board i assume and our friend may be able to tell us that the board has procedures for your going and asking them to reopen the case you've got to make a showing of whatever showing you need to make for them to say you've got enough and it's new evidence it wasn't previously available and it's enough to persuade them whether they buy that or not is another matter why isn't that the way it usually works [00:03:13] Speaker 00: You know, I researched this issue. [00:03:14] Speaker 00: I did not find the way that it usually works. [00:03:16] Speaker 00: Usually, you know, it's pending before perhaps the MSPB, when the newly discovered evidence comes to light. [00:03:24] Speaker 00: In this case, it happens to be that this information came to light two months ago during the pendency of this appeal. [00:03:31] Speaker 00: Why don't we move on to the mature case? [00:03:34] Speaker 00: So, again, obviously as the [00:03:39] Speaker 00: VA will tell you, and I think is set out in two pretty well-written briefs by the parties to this case, your scope of review is limited in what you can consider. [00:03:52] Speaker 03: Why doesn't it clear that he was demoted because the medical school would have withdrawn their residents from Dr. Miffin's supervision if he hadn't been [00:04:08] Speaker 03: moved aside. [00:04:09] Speaker 00: Sure, just so it's clear, he was detailed. [00:04:12] Speaker 00: That is the issue that we're bringing forward at this time. [00:04:15] Speaker 00: And you're putting your finger on an important point, Judge, which is that March the 28th, 2011 letter from St. [00:04:23] Speaker 00: Louis University that said, we're going to pull all of our residents if you don't do something about Dr. Mithin. [00:04:31] Speaker 00: And the reason is that the agency has given us different reasons throughout the process. [00:04:38] Speaker 00: in the parlance of federal employee disciplinary matters, their reason has shifted along the way. [00:04:47] Speaker 00: Initially they told us, and we've said it out in our brief, that it was the results of the administrative investigative board investigation was the reason for the detail. [00:04:58] Speaker 00: Then it was, according to Dr. Temeck, he has had impermissible contact with residents [00:05:06] Speaker 00: during a time where he's been instructed to have no contact with residents. [00:05:10] Speaker 00: And finally, we're at a point where the reason is, oh, we have this letter from St. [00:05:15] Speaker 00: Louis University that only came to light after a telephone conference between Dr. Temeck and the St. [00:05:23] Speaker 00: Louis University representatives. [00:05:27] Speaker 03: But all of that related to one [00:05:30] Speaker 03: point, which is that he was felt to have abused or dealt poorly with the residents. [00:05:40] Speaker 00: Right. [00:05:41] Speaker 00: And I agree that that is what the letter alleged, but that letter only occurred after an investigation of 16 of Dr. Mithin's colleagues revealed no evidence on which to take any disciplinary action against him. [00:06:00] Speaker 04: Yeah, but that argues for us to reweigh the evidence on both sides. [00:06:07] Speaker 04: We have a very deferential review requirement at this level. [00:06:15] Speaker 04: We have to find that the decision is arbitrary or capricious. [00:06:20] Speaker 04: We're not looking at preponderance of the evidence or anything like that. [00:06:26] Speaker 00: Sure, or unsupported by substantial evidence, which is how we tried to frame the issues that we brought forward, which we think are many with the board's decision. [00:06:39] Speaker 02: You've got a lot of credibility findings here too, which are almost insurmountably difficult to overturn. [00:06:49] Speaker 00: We understand that, and that's why the law is stated a variety of ways. [00:06:55] Speaker 00: But it's essentially that credibility is unrefutable on appeal. [00:07:00] Speaker 00: The administrative judge, the initial fact finder, is the one who gets to make credibility determinations. [00:07:05] Speaker 00: And that's why we brought forth the issues that we brought forth. [00:07:10] Speaker 00: It also ties into this issue of what has come to light with Dr. Tomek in the interim. [00:07:16] Speaker 00: and credibility, because we didn't raise credibility below. [00:07:19] Speaker 00: It was raised by the board itself. [00:07:22] Speaker 00: And this is one of the important things about this appeal. [00:07:25] Speaker 00: The board said, Judge Moran, you did not correctly consider, you didn't make the required credibility findings to allow us to determine what really happened here. [00:07:40] Speaker 00: And that was... But then they sent it back. [00:07:42] Speaker 00: They sent it back, but she still didn't make those required credibility determinations. [00:07:47] Speaker 00: You know, the board said in their first decision... Well, wait, wait, wait, wait. [00:07:52] Speaker 02: But it's a little odd for you to be arguing that now. [00:07:55] Speaker 02: In other words, well, they should have sent it back again for her to make further credibility determinations, where my understanding is on the record that you all said, [00:08:05] Speaker 02: You decided here, Board, don't send it back again. [00:08:08] Speaker 02: You do what you need to do with respect to credibility, whatever. [00:08:11] Speaker 02: Is that not what happened? [00:08:14] Speaker 00: I wouldn't say that we said you do what you need to do with regard to credibility or whatever. [00:08:19] Speaker 02: But you took the position it ought not to be sent back to the administrative judge. [00:08:24] Speaker 02: The Board ought to decide it. [00:08:25] Speaker 00: That is correct. [00:08:26] Speaker 00: And we said that the last issue for you to decide, Board, is whether there's clear and convincing evidence of [00:08:32] Speaker 00: that the agency would have taken the same action in the absence of the protected disclosure. [00:08:37] Speaker 00: And really that is the only issue that's presented here. [00:08:41] Speaker 00: There are some other interesting issues that have been decided before that neither side has appealed. [00:08:46] Speaker 04: But you see, we can't ask the question whether there was clear and convincing evidence. [00:08:51] Speaker 04: Correct. [00:08:53] Speaker 04: That question is not before us. [00:08:56] Speaker 04: The question is, is there substantial evidence in the record to support [00:09:01] Speaker 04: the MSPB's conclusion. [00:09:03] Speaker 00: And I think that this Court has previously said that you've got to, you know, you've got to look at everything. [00:09:09] Speaker 00: This is, we frame this, the Whitmore language in terms of the standard of review, whether you have faithfully considered the evidence that both supports and detracts from the decision that was made, and then we tried to point out where the Board unfortunately did [00:09:27] Speaker 00: did not do that. [00:09:28] Speaker 00: You know, there's one real glaring issue is that on the one hand, the board said this disclosure, there was a protected disclosure because this was not well known that St. [00:09:44] Speaker 00: Louis University had influence in the selection decision for the chief of neurology. [00:09:49] Speaker 00: On the other hand, and this is set out in our brief, they said, [00:09:53] Speaker 00: there was no motive for Dr. Tomek to retaliate because the influence of St. [00:10:00] Speaker 00: Louis University in the selection decision was well known. [00:10:04] Speaker 00: So those are things that just cannot be reconciled. [00:10:07] Speaker 00: I would submit, as a matter of law, unsupported by credible and substantial evidence on the record, or just arbitrary, because it seems arbitrary to us. [00:10:22] Speaker 00: But a lot of these things also go to the strength of the evidence. [00:10:27] Speaker 00: Was the evidence of the agency strong when you consider that which both supports and detracts from their conclusion? [00:10:37] Speaker 02: What remit are you seeking here? [00:10:40] Speaker 00: We are seeking a remand to the Merit Systems Protection Board with directions. [00:10:51] Speaker 00: What would we tell them? [00:10:54] Speaker 00: You know, one of the things that they haven't done is, it goes back to their first decision, which is make the required credibility determinations in light of these things that they pointed out. [00:11:05] Speaker 00: There's conflicts between the agency witnesses as to why they detailed Appellant at the time that they detailed him. [00:11:17] Speaker 00: They weren't prepared to take him out of his position. [00:11:20] Speaker 00: They had to put [00:11:21] Speaker 00: an endocrinologist in the position of the chief of neurology because they had not taken the steps that were necessary to cover the work. [00:11:33] Speaker 04: There were other things including, excuse me, the... Well, you're basically asking us to send it back for a rehear. [00:11:51] Speaker 00: Well, it would be along the lines of a rehearing but not a rehearing where an actual hearing takes place to properly consider the evidence that they have acknowledged exists in the record but have made incorrect conclusions from. [00:12:06] Speaker 00: Conclusions that just defy common sense. [00:12:09] Speaker 00: The known and unknown aspect of whether SLU had influence in the selection process is an awfully good example of that. [00:12:20] Speaker 00: It's irreconcilable. [00:12:23] Speaker 04: The record is full of all kinds of evidence of his conflict with various people. [00:12:34] Speaker 00: With having issues with communication with residents, maybe as a general. [00:12:40] Speaker 04: He was supposed to be heading this thing and they decided we need somebody else. [00:12:46] Speaker 03: It created a hostile learning environment. [00:12:49] Speaker 03: Isn't that the language? [00:12:50] Speaker 00: Yeah, hostile environment. [00:12:52] Speaker 00: I think they left off learning, or perhaps someone did use the learning environment term. [00:12:58] Speaker 00: But that's what was investigated by the administrative investigative board. [00:13:02] Speaker 00: And they said, we don't find evidence of these most heinous of allegations against you. [00:13:09] Speaker 00: We do think that you could use some training on your communications techniques, which they allowed him in their [00:13:16] Speaker 00: by good judgment to do on his own as well as reviewing his work in consultation performance, which they found to be excellent. [00:13:46] Speaker 05: Good morning. [00:13:47] Speaker 05: Good morning, Your Honors. [00:13:48] Speaker 05: May it please the Court? [00:13:50] Speaker 05: We ask this Court to affirm the decision below because the Board's conclusion that the agency would have detailed Dr. Mithin in the absence of his protected disclosure is supported by substantial evidence. [00:14:02] Speaker 05: The substantial evidence that the Board relied on was a series of events that went back more than a year before the decision to detail Dr. Mithin was made. [00:14:13] Speaker 05: These events led up to the decision [00:14:15] Speaker 05: and they show that the decision was not based on his protective disclosure, that the agency would have taken the personal action in the absence of the protective disclosure. [00:14:25] Speaker 05: These events began when St. [00:14:27] Speaker 05: Louis University learned of a hostile learning environment and a fear of retribution amongst the neurology residents. [00:14:36] Speaker 05: The university then investigated and informed the VA Medical Center of their concerns that [00:14:44] Speaker 05: Dr. Mithin had contributed to the hostile learning environment. [00:14:47] Speaker 05: The VA Medical Center then conducted its own investigation and appointed an administrative investigative board which interviewed 16 witnesses and produced a written report which showed that there were many concerns about Dr. Mithin's performance. [00:15:05] Speaker 05: After the administrative investigative board produced its report, the director of the VA Medical Center then asked her acting chief of staff to conduct further investigation to determine if disciplinary action was appropriate. [00:15:21] Speaker 05: Thereafter, the director issued her own memo recommending a professional improvement plan. [00:15:29] Speaker 05: The acting chief of staff then met with Dr. Mithin [00:15:32] Speaker 05: informed him of the investigation results and the professional improvement plan. [00:15:36] Speaker 05: The day after that meeting is when Dr. Mithin made his protective disclosure, but this is more than a year after the concerns were raised to the university and six months after the medical center began its investigation. [00:15:49] Speaker 05: Shortly after that meeting, the university informed the medical center that it would significantly curtail the residency program unless Dr. Mithin was formally removed from any kind of oversight of the residence. [00:16:02] Speaker 05: Shortly after that, the agency made a decision to formally detail him to a staff neurology position, and Dr. Mithin was informed of that. [00:16:12] Speaker 05: At the time that he was informed of that detail, he testified that he was told that the agency made its decision based on the input from the university. [00:16:21] Speaker 05: These events provide the substantial evidence that support the board's decision. [00:16:28] Speaker 05: And for these reasons, and those laid out in our brief, [00:16:31] Speaker 05: We respectfully request that the court affirm the decision below. [00:16:34] Speaker 02: Can I just ask you something about the motion to compel? [00:16:38] Speaker 02: The motion to compel? [00:16:39] Speaker 02: Certainly. [00:16:39] Speaker 02: So assuming this case ends at some point, is there a procedure available? [00:16:46] Speaker 02: I have no idea about the relevancy of this evidence or whatever, but isn't there a procedure available whereby a petitioner would go back to the board and say, hey, you've got to reopen my case because there's new previously unavailable evidence? [00:16:58] Speaker 02: So is that the way it's usually handled? [00:17:00] Speaker 02: Because I don't recall ever seeing a motion compel up here at this level at this time. [00:17:05] Speaker 02: Now, I understand they went to the board and the board said, well, we don't have the case because it's on appeal. [00:17:10] Speaker 02: So I appreciate why things happened the way they did. [00:17:13] Speaker 02: But there is an alternative potential for recourse. [00:17:18] Speaker 05: There is a procedure. [00:17:20] Speaker 05: The board has a procedure set out, I believe, in the CFR regulations [00:17:25] Speaker 05: whereby a petitioner can seek to reopen the record before the board. [00:17:31] Speaker 05: I do not know if that can be done after this court makes a decision on the case. [00:17:38] Speaker 04: Because the case is- Would we have to remand in order for that procedure to be available to him? [00:17:43] Speaker 04: Or could we decide the case, hypothetically, decided against him? [00:17:49] Speaker 04: Obviously, if we decided for him, there's no issue. [00:17:51] Speaker 04: But if we decided the case against him, would that bar him from going back to the board? [00:17:57] Speaker 05: Your Honor, I am not sure. [00:18:00] Speaker 02: Well, that was my understanding, and you're the expert. [00:18:02] Speaker 02: But if it's a motion to reopen, that presumes that something has been closed, right? [00:18:08] Speaker 05: That's correct, Your Honor. [00:18:09] Speaker 05: The board's rules provide that the record generally closes. [00:18:14] Speaker 05: The administrative judge generally closes the record at the end [00:18:18] Speaker 05: or determines when the record is closed, generally at the end of the hearing or after post hearing briefs. [00:18:23] Speaker 05: As we set forth in our opposition to petitioner's motion to essentially compel the agency to produce additional discovery on appeal, the record before this court is closed. [00:18:37] Speaker 05: The board does have a procedure to reopen the record if certain requirements are met materiality. [00:18:44] Speaker 05: and showing that the evidence was not available at the time when the record was open. [00:18:52] Speaker 05: And so it seems to me, just based on my general knowledge of appellate procedure, if this court remanded, the board would be able to consider those. [00:19:01] Speaker 02: However, the case is not before the board right now, and that is why they have... No, my question, and I think this is what Judge Plaker was getting to, if we decide this case, can they not [00:19:14] Speaker 02: go back to the board and move to reopen a case that's been finally decided and closed based on the discovery of new and material evidence. [00:19:23] Speaker 05: I have not researched that issue, but it seems like they would not be able to. [00:19:26] Speaker 05: Because once this court... They would not be able to? [00:19:30] Speaker 05: That would be my... I believe that would be the case. [00:19:35] Speaker 04: If you speaking for the government said they would be able to, that would solve the problem. [00:19:41] Speaker 05: And I'm not prepared to do that today. [00:19:45] Speaker 05: Once this court makes a decision, it seems like that decision should be final. [00:19:49] Speaker 05: And seeking to then reopen a record on a case that has been decided by an administrative judge and the board and this court seems to go against the judicial finality. [00:20:01] Speaker 05: Although I have not researched that specific point before the board. [00:20:07] Speaker 04: So basically you're saying there is no procedure once we decide the case. [00:20:14] Speaker 05: That would be my impression. [00:20:17] Speaker 05: I'm not an expert of procedure before the board itself. [00:20:23] Speaker 05: But as a general matter of appellate practice, once this court issues its decision, that decision stands. [00:20:32] Speaker 04: We're dealing with an administrative agency. [00:20:35] Speaker 04: And administrative agencies have rules that are different from everybody else in the world. [00:20:42] Speaker 03: That is certainly true. [00:20:43] Speaker 03: What you're also saying is you're not here to give legal advice concerning future remedies of a petitioner. [00:20:50] Speaker 05: Yes, Your Honor. [00:20:51] Speaker 05: And if this court makes its decision and petitioner seeks to reopen before the board, the government both certainly have its opportunity to oppose that or to consent in the future. [00:21:07] Speaker 04: I suppose we could decide it without prejudice to his reopening it. [00:21:12] Speaker 05: That's true, Your Honor, and leave it up to the Board to decide its own procedures as far as what it would do with that with his request after this Court has acted. [00:21:21] Speaker 05: Thank you. [00:21:23] Speaker 05: Thank you, Your Honors. [00:21:37] Speaker 00: I don't have a lot to add, Your Honors, to that. [00:21:40] Speaker 00: I researched the issue, too, on this motion to compel for lack of a more accurate term. [00:21:46] Speaker 00: There is a, excuse me, the Board does have, there's a regulation, I believe, on newly discovered evidence, but it's not clear on if it could be invoked if a decision was issued by the Federal Circuit. [00:22:02] Speaker 00: My gut feeling, I think, is similar to [00:22:04] Speaker 00: which is this decision would be final without researching it further. [00:22:11] Speaker 00: I just, again, I'm sure you've looked at what we've submitted. [00:22:16] Speaker 00: I think the parties have both submitted thorough and well-considered information to you all in our briefs, and I think that we have provided as best we could in light of [00:22:35] Speaker 00: the information available to us, the reasons why this should be, the board decision should be reversed, the second board decision should be reversed with directions to consider the information that we believe has been wrongly considered and appropriately omitted from their consideration or is otherwise just considered for a wrong conclusion. [00:23:05] Speaker 00: In light of those things, we would request that the board's decision be reversed in favor of the appellant and or that the motion to compel be granted with an opportunity to submit some sort of a motion. [00:23:21] Speaker 00: We don't know what the information is going to be fair to everyone. [00:23:25] Speaker 00: The information may not be relevant if we get it, but it very well could be. [00:23:32] Speaker 00: And at that point, [00:23:33] Speaker 00: we may say, oh, it's a lot more clear now. [00:23:35] Speaker 00: This should all be sent back for the board since credibility was such a big part of their decision. [00:23:43] Speaker 00: It's undeniable that it was for further consideration in light of this newly discovered evidence. [00:23:49] Speaker 00: Thank you. [00:23:49] Speaker 00: Thank you. [00:23:49] Speaker 00: Thank both sides. [00:23:50] Speaker 00: The case is submitted.