[00:00:17] Speaker 01:
OK, the next argued case is number 15, 3085, Whitaker against the Merit Systems Protection Board.

[00:00:24] Speaker 01:
Mr. Jones?

[00:00:28] Speaker 05:
Good morning.

[00:00:29] Speaker 05:
Thank you, Your Honors.

[00:00:31] Speaker 05:
And may it please the Court, I represent First Sergeant Nancy Whitaker, a 55-year-old female veteran of both Gulf wars, a 30% or more disabled veteran who's a special education teacher,

[00:00:46] Speaker 05:
for the Department of Defense schools at Fort Campbell.

[00:00:50] Speaker 05:
And Miss Whitaker has been passed over by virtue of her veterans' bypass to which she was subject by the agency.

[00:01:00] Speaker 05:
And the question today is equitable tolling for her to challenge you.

[00:01:03] Speaker 01:
Are you telling us that she was passed over because she was a veteran?

[00:01:08] Speaker 05:
That is our view.

[00:01:10] Speaker 05:
We have found that with

[00:01:12] Speaker 05:
But for the abrogation of those points, 10 to 15 points, she would have received those two or three positions.

[00:01:20] Speaker 05:
Two positions, three persons filled them.

[00:01:23] Speaker 05:
And it's an unusual case.

[00:01:24] Speaker 05:
This is viewed as a case of first impression below by the administrative judge of the Mayor's Assistance Protection Board, who did decline to extend the doctrine of equitable tolling here.

[00:01:35] Speaker 05:
It's interesting in that other than specific notice of the bypasses for the two positions was provided.

[00:01:41] Speaker 05:
And the other than specific notice was, and this is conceded by the Merit Citizens Protection Board as well as the agency, that the appellant, Sergeant Whitaker, should have known she was passed over within 60 days because she discovered it during the discovery phase of a federal lawsuit pending in Nashville right now.

[00:02:04] Speaker 05:
And that's the notice, the discovery filings that came more than two years after the fact.

[00:02:10] Speaker 05:
First Sergeant Whitaker had no reason to believe that she had been passed over by virtue of a veteran's preference aggregation.

[00:02:20] Speaker 05:
These are statutory rights given.

[00:02:23] Speaker 04:
But even if we agreed with you on that position, the government argues that she had noticed at least as late as March 18, 2013,

[00:02:37] Speaker 04:
Because at that point, her attorney, who I believe was a different attorney than you at the time, is that right, Mr. Whitaker?

[00:02:45] Speaker 04:
But in any event, her attorney, no, that's her name.

[00:02:48] Speaker 04:
Was it a different attorney than you, or were you the attorney?

[00:02:50] Speaker 04:
There were two attorneys in two different actions.

[00:02:52] Speaker 04:
Well, in any event, as of March 18, 2013, her attorney, who filed his notice of representation, specifically referred to the report.

[00:03:03] Speaker 04:
So he specifically referred to

[00:03:06] Speaker 04:
the report which provides the notice and then she still didn't file for far more than 60 days thereafter.

[00:03:14] Speaker 04:
So even if you're right about your primary point, which is was she given notice the way she should have been, there's no doubt that an attorney representing her came along and recognized

[00:03:25] Speaker 04:
the issue and expressly acknowledged it in a filing when he filed his notice of representation.

[00:03:30] Speaker 04:
So why shouldn't the tolling clock begin at least as of that day?

[00:03:34] Speaker 05:
OK, because there are two lawyers and two cases going on separate from this one at that point.

[00:03:40] Speaker 05:
The lawyer who actually expressly called attention to the bypasses is the lawyer in the Middle District of Tennessee.

[00:03:46] Speaker 05:
The lawyer who had just begun to represent her and provided a notice of representation, that was I. That was you.

[00:03:52] Speaker 04:
OK, so good.

[00:03:53] Speaker 04:
Then it's you.

[00:03:53] Speaker 04:
You're the one who referenced the report.

[00:03:55] Speaker 05:
Yes, I did not reference veterans bypasses because the case in which she was pursuing with me was a class action with 15 people in anti-discrimination law.

[00:04:06] Speaker 04:
I thought you specifically referred to the report.

[00:04:09] Speaker 05:
I referred to the 600 page report of investigation, which is a report of investigation as to the discrimination claim for which she hired me to add to a class action proceeding against this agency.

[00:04:21] Speaker 05:
So that was a race discrimination retaliation case that's still going on at the US EEOC, in fact.

[00:04:26] Speaker 05:
The other case where these bypasses were expressly referenced and where the federal judge in October 6 of 2014 noted agency trickery as far as the Supreme Court is concerned, in our opinion under Irwin,

[00:04:43] Speaker 05:
Express reference came clear, and that's why it took more than 60 days.

[00:04:47] Speaker 04:
Hold on a second.

[00:04:48] Speaker 04:
The report is not 600 pages, right?

[00:04:51] Speaker 04:
The exhibits attached to the report are long.

[00:04:56] Speaker 04:
The report itself is on page 105 of the record that you've attached.

[00:05:02] Speaker 05:
Sure.

[00:05:02] Speaker 05:
What we say report, we're referring to the report of investigation.

[00:05:06] Speaker 05:
And this is almost a document dump of all the material provided.

[00:05:11] Speaker 05:
It's 17 pages.

[00:05:12] Speaker 05:
No, that's not correct.

[00:05:13] Speaker 05:
The report of investigation in the EEOC proceeding goes on for hundreds of pages.

[00:05:18] Speaker 02:
But this is the first 17 pages, at least.

[00:05:20] Speaker 02:
Oh, that's correct, yes.

[00:05:21] Speaker 02:
And then the rest of it is exhibits.

[00:05:24] Speaker 02:
Is that correct?

[00:05:24] Speaker 05:
That's correct.

[00:05:25] Speaker 05:
And they're all enumerated.

[00:05:26] Speaker 05:
That's exactly correct.

[00:05:28] Speaker 05:
So for this to be adequate notice of a bypass, in our view, is not adequate notice at all.

[00:05:35] Speaker 05:
In fact, when you consider that when

[00:05:38] Speaker 05:
if someone is deprived of a statutorily provided right, they're supposed to be given some kind of opportunity for recourse and notice of that.

[00:05:45] Speaker 05:
That hasn't happened to this day.

[00:05:46] Speaker 05:
Sergeant Whitaker has never been told by the agency that these bypasses occurred.

[00:05:52] Speaker 05:
She found that in documents compelled in an EEO case.

[00:05:57] Speaker 05:
And later, this issue came up in her federal discrimination case pending in Nashville.

[00:06:03] Speaker 02:
What is this report of investigation written for?

[00:06:07] Speaker 05:
discrimination.

[00:06:09] Speaker 02:
No, who is it for?

[00:06:10] Speaker 02:
Who is the reader of this report?

[00:06:14] Speaker 05:
The reader of the report of investigation is the agency itself who hires the investigator to conduct an investigation of an EEO claim.

[00:06:22] Speaker 05:
The report is also intended for the EEOC administrative judge who relies on the report as the record if it's not augmented through post-report discovery

[00:06:35] Speaker 05:
And the report is also used by, of course, the Complainants' Council.

[00:06:40] Speaker 02:
So it's given to Ms.

[00:06:43] Speaker 02:
Whitaker's council.

[00:06:47] Speaker 02:
So it's given to Ms.

[00:06:48] Speaker 02:
Whitaker's council, which presumably means it's given to her.

[00:06:52] Speaker 02:
Right.

[00:06:53] Speaker 05:
It's given to Ms.

[00:06:54] Speaker 05:
Whitaker as well.

[00:06:55] Speaker 05:
She had it.

[00:06:55] Speaker 02:
She was given a copy of this?

[00:06:57] Speaker 05:
Yes.

[00:06:58] Speaker 05:
Everybody had a copy of the report.

[00:06:59] Speaker 05:
They had it more than 60 days before.

[00:07:01] Speaker 04:
What about page four of this report?

[00:07:03] Speaker 04:
Page four.

[00:07:03] Speaker 04:
Please turn to it.

[00:07:06] Speaker 04:
which is page 111 of the appendix.

[00:07:23] Speaker 04:
Number three, under middle school teacher, moderately full-time, severely impaired.

[00:07:29] Speaker 04:
In that number three, it says, complain and explain she was qualified candidate with a veterans preference.

[00:07:35] Speaker 04:
stated she was listed at the top of the referral list but was not interviewed.

[00:07:38] Speaker 04:
She asserted the selecting official submitted a bypass letter in order to skip her and select another candidate.

[00:07:46] Speaker 04:
How can you say she was not aware and still remains unaware of the bypass?

[00:07:51] Speaker 05:
Oh, that's not the assertion at all.

[00:07:53] Speaker 05:
The assertion is that she was not furnished proper notice and still has not been.

[00:07:57] Speaker 05:
She made this assertion, which is merely an assertion,

[00:08:01] Speaker 05:
And she asserted it was done for retaliation.

[00:08:03] Speaker 05:
The whole basis of this report investigation and the preceding case that I had been on for three weeks was a retaliation case.

[00:08:12] Speaker 05:
And that's in the class action.

[00:08:14] Speaker 05:
And that case is still pending at the EEOC.

[00:08:17] Speaker 05:
So intertwined is this agency misfeasance or malfeasance with the case in Nashville.

[00:08:23] Speaker 05:
It's a separate attorney out of Clarksville, Tennessee, which gave voice to this.

[00:08:28] Speaker 05:
It was in that discovery process that she actually found out that it was more than an assertion, that in fact, but for this Passover, it was more than an allegation by then.

[00:08:39] Speaker 05:
She would have had those positions.

[00:08:41] Speaker 05:
And she apparently remains subject to such bypasses, and they can happen with no notice to her.

[00:08:45] Speaker 05:
That's the position of the government, that the government need not inform a veteran that this entitlement has been revoked.

[00:08:53] Speaker 05:
And of course, I'll get to the constitutional problems with that.

[00:08:56] Speaker 05:
But there's at least a due process notice

[00:08:59] Speaker 01:
Well, there is a lot of discussion and attorney argument, but I didn't see anywheres where there was a piece of solid evidence where you said, submitted a bypass letter, but I gather these letters, not in our record, the two exhibits do not say, bypass this person because

[00:09:21] Speaker 01:
She's a veteran and she's a complainer or whatever, a mitigator.

[00:09:25] Speaker 05:
Your Honor, those letters appeared in the case in Nashville in the Middle District of Tennessee.

[00:09:30] Speaker 01:
But nonetheless, I see no quotation from a letter which says what this summary says.

[00:09:39] Speaker 01:
They say that is a bypass letter to bypass this person because she is doing these things that make us uncomfortable.

[00:09:50] Speaker 01:
I doubt that there's no explicit that this is all the conclusion that you say should be drawn.

[00:09:57] Speaker 01:
Perhaps it should be.

[00:09:58] Speaker 01:
I don't know.

[00:09:59] Speaker 01:
But to understand the presentation.

[00:10:02] Speaker 05:
Oh, absolutely.

[00:10:03] Speaker 05:
The question is this letter, this bypass letter that this appellant noticed.

[00:10:09] Speaker 01:
You call it a bypass letter.

[00:10:11] Speaker 01:
Did it have a title?

[00:10:12] Speaker 01:
Bypass letter?

[00:10:14] Speaker 01:
Bypass this person?

[00:10:15] Speaker 05:
The letter alternatively refers to bypasses.

[00:10:17] Speaker 05:
It's an explanatory letter.

[00:10:20] Speaker 05:
And in fact, it gives no regulations.

[00:10:24] Speaker 05:
It gives no statutes.

[00:10:25] Speaker 05:
It furnishes no factual basis.

[00:10:29] Speaker 05:
It did not give reasons even.

[00:10:31] Speaker 05:
It just said there's no entitlement here.

[00:10:35] Speaker 05:
And so that's the problem.

[00:10:41] Speaker 05:
When you have a right to something so clearly provided,

[00:10:49] Speaker 05:
by an Act of Congress.

[00:10:51] Speaker 04:
What does the Act of Congress expressly say?

[00:10:53] Speaker 05:
Okay, the veterans provides that a thirty percent or greater disabled veteran shall be entitled to points

[00:11:01] Speaker 04:
No, no, no, no.

[00:11:02] Speaker 04:
This has nothing to do with points.

[00:11:03] Speaker 04:
This has to do with whether... Oh, notice.

[00:11:05] Speaker 04:
Yeah, right.

[00:11:05] Speaker 04:
So the Act of Congress, isn't it Section 3330AA2A, which says the PEOA requires a complaint to be, quote, filed within 60 days after the date of the alleged violation.

[00:11:20] Speaker 04:
It doesn't say after the date you've been given notice of something.

[00:11:23] Speaker 04:
It's after the date that you think your rights have been violated.

[00:11:27] Speaker 04:
And so at least as of the date of this report, when you received this report, she possessed a belief, an allegation that she had been improperly bypassed.

[00:11:40] Speaker 04:
and her veterans preference rights had not been honored, because that's what's clearly stated here.

[00:11:45] Speaker 04:
Oh, yes.

[00:11:45] Speaker 04:
And so you're not required to have notice.

[00:11:47] Speaker 04:
The government's not required, unless I misunderstand, to give you notice in the form of, here's a letter.

[00:11:53] Speaker 04:
You now have 60 days in which to appeal.

[00:11:55] Speaker 04:
Rather, what the VEA requires is that you must file a complaint within 60 days

[00:12:00] Speaker 04:
of the alleged violation.

[00:12:03] Speaker 04:
And so at least as of the date of this report, it seems clear that she possessed a belief that her VEOA rights had been violated.

[00:12:10] Speaker 05:
Oh, there's no doubt about all of that.

[00:12:12] Speaker 05:
We completely agree.

[00:12:13] Speaker 05:
We have briefed her to that effect.

[00:12:15] Speaker 05:
We agree completely with that.

[00:12:17] Speaker 05:
We believe, though, that there is a requirement to notify that this taking has happened and to notify of the recourse that attaches to that.

[00:12:25] Speaker 03:
Where did the requirement come from?

[00:12:26] Speaker 03:
Judge Moore asked you about

[00:12:29] Speaker 03:
the statutory provision.

[00:12:31] Speaker 03:
Right.

[00:12:31] Speaker 03:
Where are you seeing that?

[00:12:32] Speaker 05:
Sure.

[00:12:34] Speaker 05:
As briefed, let's turn to the reply brief that cites to the VEOA at page two.

[00:12:54] Speaker 05:
There's an

[00:12:58] Speaker 05:
means of redress under 3330A and B for a violation of a preference right or entitlement.

[00:13:08] Speaker 05:
And had Ms.

[00:13:09] Speaker 05:
Whitaker been apprised of that, and even of the fact that those had been worked prior to having an unrelated cases report of investigation disclose those facts, or three years later, discovery in a federal suit in Nashville,

[00:13:23] Speaker 05:
having discovered that there, she would have exercised those rights.

[00:13:27] Speaker 05:
And that's why the Supreme Court in Irwin allows for equitable tolling.

[00:13:31] Speaker 05:
Even outside the 60-day period, it's very clear under the Fifth Amendment procedural due process, and that's something that this court has honored.

[00:13:41] Speaker 05:
uh... recently is uh... two thousand seven in nineteen ninety nine stone versus f d i c there should be noticed stone versus f d i c this court said quote the due process clause of the fifth amendment requires that the employee be afforded notice both of the charges and of the employer's evidence in an opportunity to respond and that's in the removal context

[00:14:01] Speaker 04:
uh... this let me help you because i think that you did quote something to us but you may be failing to grasp it for argument can sometimes quickly you quoted us in the competitive service under three three i think it's one eight or something there is expressly an obligation to give notice of bypass

[00:14:19] Speaker 04:
But that clearly doesn't exist in the accepted service.

[00:14:25] Speaker 04:
That same statute or regulation is not paralleled anywhere with regard to the accepted service, is that correct?

[00:14:31] Speaker 05:
Exactly, Your Honor, and that's why this is a case of first impression.

[00:14:36] Speaker 04:
You can't say something that's a case of first impression, because there's a statute that says in one particular form of service, there is an obligation of notice.

[00:14:45] Speaker 04:
And the statute doesn't impose that notice requirement with regard to another kind of government service.

[00:14:51] Speaker 05:
Right.

[00:14:51] Speaker 05:
But there's no delegation here either.

[00:14:53] Speaker 05:
And the judge herself said that this is a case of first impression as to other than specific notice as to whether the Fifth Amendment should be extended here.

[00:15:01] Speaker 05:
Should the Fifth Amendment be extended as in a taking?

[00:15:03] Speaker 05:
all the way back to 1946, the U.S.

[00:15:06] Speaker 05:
Supreme Court in Holmberg versus Ambricht.

[00:15:08] Speaker 04:
But you seem to be asking for a technicality because she had noticed.

[00:15:11] Speaker 04:
She had noticed because she alleged, and she received this report indicating she alleged she was bypassed improperly and her VEOA rights were violated.

[00:15:23] Speaker 04:
She alleged that.

[00:15:24] Speaker 04:
So there's no question she held a belief

[00:15:26] Speaker 04:
that they had done this improper thing more than 60 days in advance.

[00:15:31] Speaker 04:
And so you seem to be hinging your argument on a technical requirement of notice from the government, as opposed to her own clearly admitted notice.

[00:15:40] Speaker 04:
That feels like that doesn't really comport with you.

[00:15:43] Speaker 04:
Oh, absolutely.

[00:15:44] Speaker 04:
As you're describing it.

[00:15:44] Speaker 05:
Your Honor, absolutely.

[00:15:46] Speaker 05:
That we view the Fifth Amendment as anything other than a technicality, and we draw the parallel between Miranda rights.

[00:15:52] Speaker 05:
Those are a technicality, it would seem.

[00:15:54] Speaker 05:
I know that's a criminal realm, but the fact of the matter is, when one is subject to these benefits, and one is a 30% disabled veteran, and the statute does not leave a gap explicitly to allow that gap filling and that discretion on the part of the agency, it's very important, particularly in the complex of multiple actions.

[00:16:11] Speaker 04:
So you don't let me hold, even though Congress did not put onto the agency an obligation of affirmative notice,

[00:16:18] Speaker 04:
and expressly did so in the competitive service, and expressly did not do so in the accepted service.

[00:16:23] Speaker 04:
But you would nonetheless like me to hold that that's a requirement.

[00:16:27] Speaker 04:
and that therefore she should win even though she had actual notice and made these allegations herself and had possessed the report that detailed them.

[00:16:36] Speaker 04:
And you would like me to hold that due process nonetheless, due process requires that the agency had provided it to her even though she actually had it and admitted she had it.

[00:16:46] Speaker 05:
That's exactly what we are asking for because a passive approach to due process to us is too casual.

[00:16:52] Speaker 05:
And we'll deal with that constitutionally with Supreme Court precedent on a rebuttal.

[00:16:57] Speaker 01:
Okay, let's hear from the board and we'll save you a rebuttal time, Mr. Jones.

[00:17:04] Speaker 01:
Ms.

[00:17:04] Speaker 01:
Reardon.

[00:17:05] Speaker 00:
Good morning.

[00:17:06] Speaker 00:
May it please the court?

[00:17:08] Speaker 00:
The only issue before the court today in this case is whether Ms.

[00:17:12] Speaker 00:
Whitaker filed a timely complaint with the Department of Labor.

[00:17:17] Speaker 00:
We believe that the board correctly held that she did not and therefore denied her

[00:17:22] Speaker 00:
request for corrective action.

[00:17:24] Speaker 04:
Is that the issue, or is the issue whether there was an error in refusing to equitably toll?

[00:17:31] Speaker 00:
I'm getting to that, Your Honor.

[00:17:32] Speaker 00:
OK.

[00:17:33] Speaker 00:
Well, I'm not sure.

[00:17:33] Speaker 04:
I want to understand.

[00:17:34] Speaker 04:
I'm very confused by the argument thus far.

[00:17:36] Speaker 04:
And I want to understand what the issue is on appeal.

[00:17:39] Speaker 04:
I thought the only issue, I kind of think, I thought that they had acquiesced in the idea that she didn't file timely, but that the decision should be equitably toll.

[00:17:48] Speaker 00:
That is correct.

[00:17:49] Speaker 00:
Since they acquiesce that she did not file a timely complaint with the Department of Labor, the issue now is whether or not Labor and the board was correct in finding that she did not qualify for equitable tolling.

[00:18:04] Speaker 00:
We contend that the only two ways she could qualify for equitable tolling is that she had to file a defective complaint with Labor within the time frame, which they also admits that she did not.

[00:18:18] Speaker 00:
And equitable tolling will only apply if they put forth some evidence that the agency tricked her into missing her filing deadline.

[00:18:28] Speaker 04:
OK, time out.

[00:18:29] Speaker 04:
You don't have to.

[00:18:30] Speaker 04:
What you just said is there are only two ways to establish equitable tolling.

[00:18:34] Speaker 04:
I don't know why you would say that.

[00:18:36] Speaker 04:
You don't have to say that to win this case, right?

[00:18:37] Speaker 04:
There could be other ways.

[00:18:38] Speaker 04:
What about if she was sick and in a coma and didn't, you know, I mean, the right, like, those aren't the only two ways that one can establish equitable tally.

[00:18:45] Speaker 00:
There are two ways applicable to this particular case.

[00:18:47] Speaker 04:
OK, so the government's position is not that there are only two ways to establish equitable tally, right?

[00:18:52] Speaker 00:
Yeah, correct.

[00:18:52] Speaker 00:
OK.

[00:18:53] Speaker 00:
You're correct.

[00:18:54] Speaker 00:
They, the, Ms.

[00:18:55] Speaker 00:
Whitaker did not put forward any evidence that the agency tricked her into missing a filing deadline.

[00:19:02] Speaker 00:
alleges that she became aware on April the 4th in a separate proceedings.

[00:19:09] Speaker 00:
The agency and the board made a determination that she became aware at least when she received the report of investigation.

[00:19:18] Speaker 00:
In addition to that, if you look at JA 108-124 or 105-106, you will see a synopsis of the

[00:19:31] Speaker 00:
report of investigation.

[00:19:33] Speaker 00:
Granted, the report of investigation was some 400 pages long, but the report had a synopsis at the beginning which was 17 pages long.

[00:19:42] Speaker 00:
It also had an index to everything else in that report.

[00:19:48] Speaker 00:
In that report, Ms.

[00:19:50] Speaker 00:
Whitaker had the report found that Ms.

[00:19:53] Speaker 00:
Whitaker responded to affidavits from various of the agencies, employees,

[00:20:00] Speaker 00:
and agency's officials saying that she had been bypassed and also given the reasons for the bypass.

[00:20:07] Speaker 00:
Now, the report of investigation was a culmination of the investigation of the EEO that had taken place several months.

[00:20:17] Speaker 00:
So in order for Ms.

[00:20:18] Speaker 00:
Whitaker to have responded to these affidavits, she would have received the affidavits several months before the reports were submitted to her.

[00:20:28] Speaker 00:
So she even knew.

[00:20:29] Speaker 00:
about the bypass long before she even got the report of investigation.

[00:20:35] Speaker 04:
But at the latest, she knew about the R18.

[00:20:37] Speaker 00:
Yes, ma'am.

[00:20:38] Speaker 00:
At the latest, she got them when she got the report of investigation.

[00:20:41] Speaker 00:
So we believe that, in addition, she had an obligation to exercise due diligence to come within 60 days of that particular date and file her complaint with the Department of Labor.

[00:20:54] Speaker 00:
In fact, the Department of Labor found the same thing that the board found.

[00:20:58] Speaker 00:
that she didn't put forth any evidence that would qualify her for equitable tolling.

[00:21:05] Speaker 00:
If you look at the Department of Labor's decision, and also if you look at the Department of Labor's decision that it issued in July 2011, which is a joint appendix 317 and 318, we bring that up to show that Ms.

[00:21:20] Speaker 00:
Whittaker had filed several complaints with the Department of Labor before.

[00:21:24] Speaker 00:
So she was aware of the filing time.

[00:21:26] Speaker 00:
She was not new to this.

[00:21:28] Speaker 00:
So she knew she had to come within 60 days of when she had actual knowledge that she had been bypassed.

[00:21:35] Speaker 00:
And she did not do that.

[00:21:37] Speaker 02:
Judge Moore said she knew at least by March 18th.

[00:21:43] Speaker 02:
But do you agree with that?

[00:21:45] Speaker 02:
Or do you think she knew beforehand?

[00:21:47] Speaker 02:
But JA 105 has a date of February 22nd on it.

[00:21:53] Speaker 02:
And it's a letter addressed to her.

[00:21:56] Speaker 02:
Do you agree with the March 18th?

[00:21:58] Speaker 02:
Or do you think she got it in February?

[00:22:00] Speaker 02:
What's your view on that?

[00:22:00] Speaker 00:
Oh, we believe she got it in February when she got the report of investigation.

[00:22:04] Speaker 00:
But since the board said, at least by March the 18th, when her attorney filed his notice of representation, they used that date, all I am saying is that Ms.

[00:22:20] Speaker 00:
Whitaker had noticed long before then

[00:22:23] Speaker 00:
in terms of the report of investigation.

[00:22:25] Speaker 02:
This is her home address with the date of February 27th.

[00:22:28] Speaker 00:
February 22nd.

[00:22:29] Speaker 00:
And I'm saying she also knew before February 22nd, because February the 22nd refers to her response to affidavits that had been submitted by various officials of the agency.

[00:22:44] Speaker 00:
And in her responses to those, she claimed that she was bypassed in order to prevent her from getting the job.

[00:22:52] Speaker 00:
So the affidavits that these officials submitted would have had to have been submitted prior to February the 22nd in order for Ms.

[00:23:01] Speaker 00:
Whittaker to have responded to them simply because the February the 22nd, 2013, report of investigation was a culmination of a long investigation for which she had been intimately involved in responding to the affidavits

[00:23:21] Speaker 00:
very suspicious of the agency.

[00:23:23] Speaker 00:
So we believe that the board was correct when it found that she did not meet her, did not exercise due diligence in filing her complaint with the Department of Labor within the 60 days from when she had actual knowledge.

[00:23:36] Speaker 00:
And it's all right if we use March as the beginning date of the 60 days, but all I'm saying to the court is that she had knowledge long before the March date.

[00:23:48] Speaker 00:
And to the extent that they were referring to

[00:23:50] Speaker 00:
the court in Tennessee, that refers to a different school year, 2010, 2011, as opposed to 2012.

[00:24:00] Speaker 00:
And we believe that the board correctly denied Ms.

[00:24:04] Speaker 00:
Whitaker her request for corrective action because she did not meet her obligation to file.

[00:24:14] Speaker 00:
Unless the court has additional questions for me.

[00:24:18] Speaker 01:
Any more questions for Ms.

[00:24:19] Speaker 01:
Reardon?

[00:24:19] Speaker 01:
Thank you, Ms.

[00:24:20] Speaker 01:
Reardon.

[00:24:22] Speaker 01:
Mr. Jones?

[00:24:24] Speaker 05:
Well, we don't have to argue over when she was notified and all of that.

[00:24:29] Speaker 05:
She was so diligent.

[00:24:33] Speaker 05:
That's how she wound up not learning that she had appeal rights on these particular bypasses until the time when she filed those complaints pro se.

[00:24:44] Speaker 05:
She had been pursuing a federal case in Nashville, a case that has been stayed,

[00:24:49] Speaker 05:
The trial was supposed to be January 22, and Judge Trowder down there stayed that case because the constitutional issues here are so important.

[00:24:58] Speaker 05:
And the case there, there is information about the role of the agency's general counsel in bypasses all over the place.

[00:25:06] Speaker 05:
She was so diligent, she thought that her rights were being pursued.

[00:25:10] Speaker 05:
She did not understand as a pro se litigant as to these two bypasses before you that I was doing a retaliation class action

[00:25:18] Speaker 05:
And the lawyer in Nashville in this other federal case that's now been stayed pending the results here was pursuing a discrimination case over different conduct entirely, but related to the bypasses.

[00:25:29] Speaker 05:
So we are very clear, Judge Moore, and I thank you for understanding and clarifying that we are asking that this Fifth Amendment due process right apply to these kinds of proceedings, just like in Cushman versus Shinseki and in Gamble versus Shinseki in 2009, both cases.

[00:25:48] Speaker 05:
We are not hiding, if you read our briefs, we're not hiding the fact that this all was out there in these reports of investigation and unrelated proceedings.

[00:26:00] Speaker 05:
After she was denied in May from the DOL recourse, that's when Ms.

[00:26:04] Speaker 05:
Whitaker hired me to pursue this kind of appeal to the Mayor's Assistance Protection Board.

[00:26:10] Speaker 05:
The only other point I would like to make that has not been briefed is that

[00:26:18] Speaker 05:
This accusation that this double veteran 55-year-old sergeant, special ed teacher Rompour Campbell, did not exercise diligence is not found at all in the record.

[00:26:30] Speaker 05:
This was a person who was seeking in every way she knew how, including with two counsel in two different states, with two different cases in addition to this third one, to get out of the position she found herself in and to get a decent transfer, not even a promotion.

[00:26:46] Speaker 05:
We're not even talking about a lot of money here.

[00:26:48] Speaker 05:
And I believe that the policy underlying these veteran statutes, as well as the Fifth Amendment itself, would call for notice to be provided that is expressed.

[00:26:57] Speaker 05:
And I think that that can be used.

[00:26:59] Speaker 05:
You can read the brief and the reply brief on that.

[00:27:01] Speaker 05:
But the notion that there was a lack of diligence is woefully lacking.

[00:27:06] Speaker 05:
It's incorrect.

[00:27:07] Speaker 05:
This is one of the most diligent people.

[00:27:08] Speaker 05:
And we argue that this is a case where equitable tolling would apply.

[00:27:12] Speaker 05:
And so that her case should be reviewed.

[00:27:16] Speaker 05:
Let's just get into why they passed her over all these times.

[00:27:19] Speaker 05:
We're not asking for a dispositive ruling, though we contend.

[00:27:22] Speaker 05:
And in closing, I reassert that these bypasses, these regulations that the administrative judge felt she did not have the capacity to rule on the constitutionality of are violative for the reasons stated in our briefs of both the presentment clause and the Fifth Amendment.

[00:27:37] Speaker 05:
And we're prepared to hold to that.

[00:27:40] Speaker 05:
Are there more questions?

[00:27:41] Speaker 01:
Thank you.

[00:27:43] Speaker 01:
The case is taken under submission.