[00:00:23] Speaker 01:
The next case is Rob Bryant et al.

[00:00:27] Speaker 01:
versus the MSPB and the Department of Homeland Security, 2017, 12-41, 43, and 45.

[00:00:34] Speaker 01:
Mr. Dodd.

[00:00:35] Speaker 01:
Thank you, Your Honor.

[00:00:39] Speaker 05:
May it please the Court.

[00:00:41] Speaker 05:
My name is Matthew Dadd.

[00:00:42] Speaker 05:
I'm here with my co-counsel, Brian Lawler.

[00:00:45] Speaker 05:
And as a change of pace from the three previous patent cases, this is an appeal from the MSPB.

[00:00:51] Speaker 05:
This case involves

[00:00:53] Speaker 05:
three military reservists who experienced workplace harassment based on their military service.

[00:01:01] Speaker 05:
And then they experienced the confusion that's associated with board appeal processes, the board process in general, UCR cases in general, and then at least a couple of incorrect statements that were provided by the administrative judge.

[00:01:18] Speaker 05:
Based on all of that, below what the

[00:01:23] Speaker 05:
Appellants tried to do is try to follow the advice given by Administrative Judge Weiss, filed a follow-on USERRA appeal.

[00:01:35] Speaker 01:
Well, it wasn't a USERRA appeal that was suggested.

[00:01:38] Speaker 01:
It was a constructive removal act, wasn't it?

[00:01:42] Speaker 05:
Correct, Your Honor.

[00:01:43] Speaker 05:
Well, I will take issue with that with one point.

[00:01:48] Speaker 05:
The exact language that Judge Weiss gave in his opinion

[00:01:52] Speaker 05:
referred to a removal action under 5 USC section 75.

[00:01:59] Speaker 05:
We all know that there is no section 75.

[00:02:00] Speaker 05:
He was clearly referring to part 75.

[00:02:03] Speaker 05:
That was one confusing point.

[00:02:05] Speaker 05:
But I think the more important confusing point is that even if he had the citation correct, that advice was wrong.

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Because at that time, such a case under Title 75

[00:02:21] Speaker 05:
or Part 75, was time barred.

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And this is the important point.

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This is at least one important point about this case.

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The objective was to try to get the constructive removal claims heard.

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By the time or at the time that Judge Weiss provided that advice, a removal action was not permitted.

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Under the board rules 1201.22a,

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You have 30 days to file an action under part 75.

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In contrast, though, there are no time limits on USERRA.

[00:02:59] Speaker 05:
Same section, subsection B. And on top of that confusion, this case is clear that the board clearly changed this law with respect to collateral estoppel.

[00:03:15] Speaker 05:
And this goes to my earlier point about the confusion.

[00:03:20] Speaker 05:
Standing here today, I do think that the board's current procedure in terms of denying a hearing on the merits, if it's clear that the issue is collaterally stopped, is probably correct.

[00:03:35] Speaker 05:
But with respect to my clients, the issue was at the time they filed their second USERRA case.

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It wasn't time barred.

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They were following the suggestion of Judge Weiss.

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And there was case law, board case law, that supported this procedure.

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And in particular, what I'm saying is referring to the Parikh case.

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And this is 110 MSPR 295.

[00:04:01] Speaker 02:
Can I just ask, before, let's call it the old board procedure, the set of cases that toward the end of the board opinion, the board opinion says, we're not going to do that anymore, whatever that is.

[00:04:17] Speaker 02:
And that had something to do with you can't get rid of a USERRA or perhaps comparable whistleblower claim at the jurisdictional threshold.

[00:04:27] Speaker 02:
You have to go to the next stage.

[00:04:30] Speaker 02:
Did the board in that context indicate that when you got to the next stage, there would be no collateral estoppel, but rather all of the factual issues, even if they had been litigated in an earlier proceeding,

[00:04:46] Speaker 02:
would be litigated again afresh?

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Is that the hearing that the board thought was required?

[00:04:53] Speaker 05:
Judge Sharonto, I could answer that question in two parts.

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One, there's no board rule that directly addresses that issue.

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So my colleagues to the left of me, and even the board itself, in the decision that we're directly appealing today, said, well, you couldn't have offered additional evidence.

[00:05:13] Speaker 05:
My first response to that is there's no board rule that says you couldn't.

[00:05:18] Speaker 05:
Second response is that it is somewhat inconsistent with USERA in general, which doesn't have any statute of limitations or deadline to file a claim.

[00:05:29] Speaker 05:
But more importantly, I think as a third point, it brings me back to the Parikh case.

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Because when you go and look at that case, page seven or eight of the slip opinion in that case,

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Procedurally, it is almost identical to this case, with the exception that it was a whistleblower claim, individual right of action cause.

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The board had initially held that the party in that was clattery stopped because there was a prior decision that they failed to demonstrate jurisdiction with a hearing.

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Then in the case I'm talking about,

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The board said there was an error here because of the collateral estoppel rule, and you have to provide that hearing.

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And in the very last paragraph of that opinion, the board says that Mr. Parikh must have a hearing on the merits.

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And so I would interpret that as saying that you have to actually take evidence, and you have to make a decision on the merits.

[00:06:41] Speaker 02:
exactly the same thing had been done before.

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In terms of, we relied on AJ Weiss's reference to now that you've actually resigned, you can proceed.

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The reasonableness of interpreting that to mean you can skip your petition for review to the board for the decision I'm now making in the first proceeding in 2014, I guess it is.

[00:07:10] Speaker 02:
Do it all over again without any of the normal adjudicatory system collateral estoppel effects.

[00:07:18] Speaker 02:
Isn't that a surprising inference to draw?

[00:07:22] Speaker 05:
Judge Sharonto, I stand here today and I say it's unusual.

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And that's why I said earlier, I think the board now has it correct.

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But at the time that this decision was made and our clients made that decision, it wasn't correct.

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And then when you add in the incorrect information from Judge Weitz,

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I think that's where you get to the point of understanding why this decision... What is incorrect about that information?

[00:07:47] Speaker 00:
From Judge Weiss?

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Right.

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I mean, you take it as advice from a lawyer that's counseling their clients, let's proceed in this space.

[00:07:56] Speaker 00:
It just seems to me that Judge Weiss is saying that you did not advance a claim of involuntary discharge.

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You had the opportunity to do that.

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And there's various opportunities in this proceeding in which you could have done that.

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You didn't do it.

[00:08:12] Speaker 00:
And now everyone has resigned.

[00:08:15] Speaker 00:
And to the extent that you're going to seek any, if you ever decide to seek constructive removals, well, you can do that under this statute.

[00:08:27] Speaker 00:
And so there's a miscitation to the statute.

[00:08:30] Speaker 00:
But I guess you would look at it.

[00:08:34] Speaker 00:
at the statutes and note the site, it wouldn't stop you or... No.

[00:08:39] Speaker 05:
With respect, Judge Raina, it would stop us.

[00:08:41] Speaker 05:
And that's what stopped us so far because when you read the statute and when you read the board rules, you know that even at the time that Judge Weiss provided that advice, it was wrong because of his time bar.

[00:08:51] Speaker 00:
He doesn't have an obligation to provide advice.

[00:08:54] Speaker 00:
That's not his role.

[00:08:56] Speaker 05:
Judge Raina, I completely agree with that.

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But if a judge does provide a suggestion in terms of how to proceed with a case,

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And on top of that, there is also, as my colleague still left.

[00:09:05] Speaker 00:
What he does not say is that in so doing, you should abandon the current case and not file a petition for review in this case.

[00:09:15] Speaker 00:
Correct.

[00:09:15] Speaker 00:
He didn't say that, but that's what happened.

[00:09:17] Speaker 05:
Correct, Your Honor.

[00:09:18] Speaker 05:
And then I think it happened again in the context of the USERRA claim.

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There is no time bar.

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And that's part of the purpose of USERRA, to be very liberally construed, to protect military reservists who are suffering

[00:09:30] Speaker 05:
workplace discrimination or some other adverse employment action.

[00:09:34] Speaker 02:
And Judge Serrato, to get- I mean, that may be, but surely USERRA doesn't contemplate, even if it contemplates bringing the claim a long time later without time limit, doesn't contemplate bringing the same claim over and over and over again without any kind of normal collateral estoppelment.

[00:09:55] Speaker 05:
Your Honor, I genuinely agree with that.

[00:09:58] Speaker 05:
And I think that's correct.

[00:10:00] Speaker 05:
Again, that's why the board's correct now.

[00:10:02] Speaker 05:
But it goes back to the confusing aspect of board procedure.

[00:10:06] Speaker 05:
And I would submit, Your Honor, that in 99 or greater percent of cases, no one would do this.

[00:10:13] Speaker 05:
Because if the point is simply to re-litigate the same evidence or to get the same evidence at an evidentiary hearing and to get the same decision on the merits,

[00:10:24] Speaker 05:
No one would do that.

[00:10:25] Speaker 05:
We would appeal.

[00:10:26] Speaker 05:
And that's essentially, at the end of the day, that's all we're asking for is a right to appeal our claims to the full board as a petition for review.

[00:10:34] Speaker 05:
And so I think the concern about construing USERRA and the other board procedures to grant parties a right to relitigate ad infinitum is not really a concern, particularly now that the board is correcting it.

[00:10:48] Speaker 00:
But you did have a USERRA claim, and you were pursuing it, but then that was abandoned.

[00:10:54] Speaker 00:
Right?

[00:10:55] Speaker 05:
Your Honor, we've refiled it as based on a constructive discharge claim.

[00:11:00] Speaker 00:
The proceeding that gave rise to this footnote that we're talking about from AJ Weiss, that was abandoned.

[00:11:08] Speaker 05:
Correct, Your Honor, in lieu of the second USERRA, but also to directly... By abandoning your claims at that point, they were rendered final.

[00:11:20] Speaker 05:
If, only if, you agree with the government's position about collateral stock.

[00:11:23] Speaker 00:
I mean, that's what happened, right?

[00:11:25] Speaker 00:
I mean, you abandoned the claims, you didn't file for petition for review, and as a result of that, that decision was made final.

[00:11:34] Speaker 05:
Your Honor, let me add one point to that, and this again goes to the quirkiness of board procedure.

[00:11:41] Speaker 05:
Under 5 CFR 1201.118,

[00:11:45] Speaker 05:
The board has the authority to reopen any decision at any time.

[00:11:51] Speaker 05:
So in terms of a final decision, it is final, but it's not final in the context of jurisdictional final.

[00:11:58] Speaker 05:
They don't lose subject matter over the case.

[00:12:01] Speaker 05:
And to underscore this, this point really underscores confusion.

[00:12:05] Speaker 02:
But the general notion of finality that's relevant here is the kind of issue preclusion, the collateral estoppel notion of finality.

[00:12:15] Speaker 02:
occurred once the time for petitioning for review from the whatever, is it August or September?

[00:12:22] Speaker 02:
Yes.

[00:12:23] Speaker 02:
Decision of H. A. Weiss lapsed without a petition.

[00:12:27] Speaker 05:
I think it, Your Honor, it does if you basically put aside everything that we're arguing in terms of the misinformation from the board, the context of no time limit for USERRA claims, and sorry,

[00:12:45] Speaker 05:
The misinformation from the board itself, and then the board procedures in terms of the board prior precedent.

[00:12:51] Speaker 05:
And really, if we want to do it, and we tried to do that in our briefs in terms of a strict lateral stop law analysis, this change in law, basically, the way we look at it is that prior to the change of law, according to board procedure, those three cases and the pre-case, there was a viable avenue to go forward.

[00:13:12] Speaker 05:
It was not often used

[00:13:14] Speaker 05:
But it was viable.

[00:13:15] Speaker 02:
Was it ever used?

[00:13:16] Speaker 02:
I guess that's the question.

[00:13:18] Speaker 02:
Is there a situation where, whether you're Sarah or whistleblower, where all the facts were tried, adverse decision, no review is taken, you go back and do it again and you get to the hearing or a hearing and it happened that there was a

[00:13:42] Speaker 02:
a retrial of what had already been tried and you then get or you didn't retry it, but you now say, you know, the final shoe has dropped and I actually got, I actually left the job.

[00:13:55] Speaker 02:
But on the second opportunity for appeal, this one taken, the board says, yes, that is now ripe for our review and we can review it.

[00:14:07] Speaker 05:
Your honor, with all of those facts of that hypothetical, I'm not aware of a case.

[00:14:11] Speaker 05:
But again, I think it goes to the unusualness of our present circumstances.

[00:14:15] Speaker 05:
I see that I'm into my rebuttal time.

[00:14:17] Speaker 05:
May I preserve it?

[00:14:18] Speaker 01:
You may.

[00:14:18] Speaker 05:
Thank you, your honor.

[00:14:25] Speaker 01:
Mr. Gogger, is it for the board?

[00:14:27] Speaker 04:
Yes.

[00:14:28] Speaker 04:
May it please the court.

[00:14:30] Speaker 01:
And you're going to take 10 minutes and leave five to the government.

[00:14:34] Speaker 04:
That is correct.

[00:14:36] Speaker 04:
I may please the court.

[00:14:39] Speaker 04:
Essentially what is happening here is this is a collateral attack using a second USERRA appeal to attack the decision in the first appeal, which the petitioners said in their second appeal, AJ Weiss missed the boat.

[00:14:53] Speaker 04:
So essentially, rather than follow the notice provided at the end of AJ Weiss's decision about how to file a petition for review with the board, they filed a second USERRA appeal in which they attacked the decision in the first case.

[00:15:06] Speaker 04:
This is a quintessential case of a collateral attack, using a second appeal as a collateral attack on a decision in the first case.

[00:15:15] Speaker 02:
I think Mr. Dowd would, I don't want to put words in his mouth, but does not have to disagree with what you just said in order to assert his position, which is that at least two things were distinctive about the circumstances here.

[00:15:32] Speaker 02:
One was that whatever was said at the end of A.J.

[00:15:35] Speaker 02:
Weiss's decision, there was something said in, I don't know, page 14 note, something that sounded awfully lot, an awful lot like, you've got this other route to complete the process now that for two of you, the last shoe has dropped.

[00:15:51] Speaker 02:
Mr. Howe, I guess, had already resigned.

[00:15:54] Speaker 02:
And then the other thing that he would say is distinctive is that

[00:15:58] Speaker 02:
There was some very confusing background law growing out of this court's on-bond Kirkendale decision about having to have a hearing, even if you don't have anything new to say about the facts.

[00:16:15] Speaker 02:
And taken together, that was kind of a good enough reason to think, let's bring a new proceeding, rely on the old stuff, but then do the appeal after that.

[00:16:26] Speaker 04:
So counsel describes this footnote, which is, I think it's on page six of the appendix, as misinformation.

[00:16:36] Speaker 04:
But in fact, it's correct.

[00:16:38] Speaker 04:
The footnote is correct.

[00:16:40] Speaker 04:
There is a possible further avenue of appeal and the administrative judge Weiss simply identified it.

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And he may have felt obligated to do so.

[00:16:54] Speaker 04:
the opening provisions that nothing in USERA is intended to in any way limit other rights that employees who also have military service are entitled to.

[00:17:09] Speaker 04:
So here is the judge saying, you may have this other right and identifying it.

[00:17:13] Speaker 04:
There's no advice there.

[00:17:14] Speaker 04:
He doesn't say, oh, you're going to be time barred, so you should make arguments about good cause.

[00:17:20] Speaker 04:
you're going to need different facts.

[00:17:22] Speaker 04:
All of that would have been advice.

[00:17:23] Speaker 04:
He's just saying you have a possible further avenue of appeal and he identifies that.

[00:17:30] Speaker 04:
The second thing is there's this argument about detrimental reliance on the footnote.

[00:17:37] Speaker 04:
What's hard to make it the case for detrimental reliance when there's no reliance

[00:17:42] Speaker 04:
whatsoever, they didn't file chapter 75 appeals of constructive removals.

[00:17:47] Speaker 04:
They didn't do that.

[00:17:48] Speaker 04:
So they didn't rely on the footnote.

[00:17:51] Speaker 04:
They filed another USERA appeal stating identical facts, which in their opening brief, they concede that the factual allegations in their second proceeding are repeated verbatim from the first proceeding.

[00:18:05] Speaker 01:
Saying they went against the footnote.

[00:18:08] Speaker 04:
They did.

[00:18:08] Speaker 04:
They didn't follow the footnote.

[00:18:10] Speaker 04:
So it's hard to say they relied on the footnote.

[00:18:14] Speaker 04:
And there's just, there's no right to bring, it's true that there's no time bar under the MSPB regulations on euceropeos.

[00:18:22] Speaker 04:
You can keep bringing them, but there's no, there's no right, there's no entitlement to a second proceeding on the same set of facts.

[00:18:31] Speaker 04:
And that's what collateral estoppel is, is designed to prevent this repetitiousness of

[00:18:38] Speaker 04:
litigation.

[00:18:38] Speaker 02:
What was the state of all relevant legal authority before the board adopted its new view that the threshold jurisdictional stage was the right one to apply collateral estoppel to figure out if one needed to go forward?

[00:18:58] Speaker 02:
What was the state, everything that grew out of Kirkendale about you are entitled to a hearing.

[00:19:06] Speaker 02:
Okay, you went to a hearing.

[00:19:08] Speaker 02:
If what you said was exactly, you said, Your Honor, I rely on everything that we've done before.

[00:19:21] Speaker 02:
What was clear or not clear about what was supposed to happen?

[00:19:26] Speaker 04:
So in that case, the issue of preclusion would occur at the hearing stage.

[00:19:31] Speaker 02:
So are there cases that said that?

[00:19:34] Speaker 04:
I could not find any that got that far.

[00:19:36] Speaker 04:
Two of these three cases, in fact, were the petition for review was denied by the board on different grounds.

[00:19:44] Speaker 04:
So there was no remand for a meaningless hearing.

[00:19:47] Speaker 04:
And the third one didn't go to hearing.

[00:19:49] Speaker 04:
So I didn't find one that actually went to a meaningless hearing.

[00:19:53] Speaker 04:
But in these other cases, it's possible that there may be an overlap of evidence, but not what we have here, which is a complete overlap of evidence.

[00:20:03] Speaker 04:
So I think what this case did was bring to light to the board, the flaw in these three decisions, because they're seeing a situation where appellants want to bring the same exact evidence in a second hearing.

[00:20:17] Speaker 02:
Mr. Dowd pointed particularly to the decision that begins with the letter P. I forget what it's called.

[00:20:26] Speaker 02:
Can you talk about why that doesn't help them?

[00:20:30] Speaker 02:
Including what the decision said.

[00:20:35] Speaker 04:
The other two decisions follow the Bokehler decision.

[00:20:38] Speaker 04:
I wasn't really following what the point was about Parikh because it came after and follows Bokehler.

[00:20:49] Speaker 04:
All three of these are whistleblower cases and all three had the same predicament, which is in the first whistleblower proceeding,

[00:20:58] Speaker 04:
the appellant made an allegation that they made a protected disclosure, protected under the Whistleblower Protection Act.

[00:21:06] Speaker 04:
And they got to a hearing.

[00:21:09] Speaker 04:
It was considered non-frivolous.

[00:21:11] Speaker 04:
And they got to a hearing.

[00:21:12] Speaker 04:
And then at the hearing, they couldn't prove the allegation.

[00:21:17] Speaker 04:
And so what the board said in Bokeler, which set up this problem, was, well, the issue's different when you're looking at whether it's a non-frivolous allegation.

[00:21:29] Speaker 04:
The issue decided in the first proceeding was, were they able to prove the allegation by preponderance of the evidence?

[00:21:36] Speaker 04:
In the second proceeding, the question to get to a hearing is, is it a non-frivolous allegation?

[00:21:42] Speaker 04:
And so in all three cases, there are all three whistleblower cases involving this issue of a disclosure, but it applies to USERRA because as you point out under Kirkendall, it's similar, non-frivolous allegations, and they're broadly construed under USERRA.

[00:21:57] Speaker 04:
There's a liberal standard.

[00:21:59] Speaker 04:
In most cases, it would go to a hearing if it's close enough, if there's some non-frivolous allegations.

[00:22:10] Speaker 04:
cases set up the problem.

[00:22:11] Speaker 02:
So let me just ask, I thought what I just heard was something that sounded actually perfectly ordinary, which is that in proceeding number one, you fail to prove a fact by preponderance of evidence.

[00:22:22] Speaker 02:
That doesn't preclude you because the standard of proof is different from later, asserting the same fact and meeting the threshold

[00:22:30] Speaker 02:
non-frivolous allegations standard.

[00:22:32] Speaker 02:
Is that all that happened in the earlier cases?

[00:22:34] Speaker 04:
That's what happened in the earlier cases.

[00:22:36] Speaker 02:
Oh, okay.

[00:22:36] Speaker 02:
Well, that's perfectly ordinary matter if that's what happened.

[00:22:39] Speaker 02:
Of issue preclusion law is that when failure to meet a high burden of proof standard doesn't preclude you from being able to try to meet a lower one.

[00:22:50] Speaker 04:
That's true, the lesser burden.

[00:22:52] Speaker 04:
But the fact that they, the board did not, could not disregard the fact that the

[00:22:59] Speaker 04:
were unable to provide evidence to support that allegation.

[00:23:03] Speaker 04:
Here we have again in the first proceeding there was a full hearing and they were unable to prove their allegations.

[00:23:13] Speaker 04:
So that it's a similar situation.

[00:23:16] Speaker 04:
So when they come back with the same evidence, the board can't ignore what happened in the first proceeding and correctly applied issue preclusion.

[00:23:26] Speaker 04:
To put it in a different way,

[00:23:28] Speaker 04:
If the petitioners got what they wished for here, it would be a hearing on the same evidence.

[00:23:36] Speaker 04:
And if they got what they wished for here, they would prevail.

[00:23:39] Speaker 04:
So what you would have is a second administrative judge looking at the same exact evidence coming up with different findings and a different conclusion.

[00:23:48] Speaker 04:
And that's exactly what issue preclusion is supposed to prevent, which is inconsistent adjudication, inconsistent decisions.

[00:23:58] Speaker 04:
And I think this case really brought the problem with those three decisions to light.

[00:24:03] Speaker 04:
And that's why the board took this opportunity to overrule those decisions.

[00:24:09] Speaker 04:
I would mention one other thing because there was mention of filing a motion to reopen.

[00:24:15] Speaker 04:
And in fact, the petitioners have filed a motion to reopen.

[00:24:18] Speaker 04:
They filed it about the same time they filed their reply brief in this court.

[00:24:23] Speaker 04:
So that's why we didn't mention it in our response briefs.

[00:24:25] Speaker 04:
It came after our response briefs.

[00:24:27] Speaker 04:
that's currently pending before the board and it's an opportunity, they're trying to reopen the decision by Judge Weiss in the first MSPB appeals.

[00:24:38] Speaker 01:
Thank you counsel.

[00:24:40] Speaker 01:
We'll hear from the government.

[00:24:41] Speaker 01:
Mr. Salitro.

[00:25:02] Speaker 03:
May it please the court, the Department of Homeland Security respectfully joins the MSPB and asks the court to affirm the MSPB's dismissal of these claims on the basis of issue preclusion.

[00:25:15] Speaker 03:
It's clear that petitioners cannot prevail on their second set of USERRA actions without a finding that fundamentally contradicts the first administrative judge's decision on the first set of USERRA actions.

[00:25:31] Speaker 03:
The first set of USERA actions dealt with the verbatim hostile work environment issue.

[00:25:36] Speaker 02:
But look, there is no dispute about what you just said.

[00:25:39] Speaker 02:
The dispute is do they get an appellate, which is to say board review of the initial set of findings.

[00:25:49] Speaker 02:
And you said your position is they miss their opportunity and they no longer have an opportunity.

[00:25:55] Speaker 03:
Correct, Your Honor.

[00:25:56] Speaker 03:
And petitioners do claim that the harm in the footnote, in the reliance on the footnote, is that the petitioner did not have the opportunity to appeal that first AJ Weiss.

[00:26:07] Speaker 02:
I don't quite say that.

[00:26:09] Speaker 02:
What they say is that partly because of the footnote, which I actually think is a more minor point, but mostly because of the line of cases that the board

[00:26:23] Speaker 02:
overruled here, that they kind of thought that they could take this extra step and get review in the second proceeding of the initial A.J.

[00:26:34] Speaker 02:
findings in the first proceeding.

[00:26:36] Speaker 03:
To address the change of law, the petitioners try to rely on the change of law exception as articulated in the Dow Chemical case.

[00:26:46] Speaker 03:
The change of law exception requires that the first decision was decided by old law

[00:26:51] Speaker 03:
The first decision, the first set of USERA action, Judge Weiss's decision, did not apply old collateral estoppel law.

[00:26:59] Speaker 03:
So by that very nature, the change of law exception should not apply.

[00:27:04] Speaker 03:
All the change of law did was affect when the MSPP would decide the issue of collateral estoppel.

[00:27:11] Speaker 03:
And the MSPP is now saying that it will decide, it can decide collateral estoppel at the jurisdiction stage so it doesn't have to have an empty hearing.

[00:27:21] Speaker 03:
And I think it's helpful to think about it in a normal district court setting.

[00:27:26] Speaker 03:
If there was a trial that went to verdict before a jury and plaintiffs in a subsequent case on the same issue, defendants filed a motion to dismiss on the basis of res judicata.

[00:27:40] Speaker 03:
What the old MSPB law would say is no, on a motion to dismiss, all we're looking at is whether they stated a legal claim, whether they failed to state a claim.

[00:27:49] Speaker 03:
And the jury verdict, that was whether they met their preponderance of the evidence burden.

[00:27:55] Speaker 03:
All the MSPB change of law said is that does not make sense because the issue of collateral estoppel, it does not matter what the burden is at that particular pleading stage if all the other elements of collateral estoppel are met.

[00:28:13] Speaker 02:
So before this decision, was the board applying collateral estoppel

[00:28:18] Speaker 02:
at the hearing stage?

[00:28:21] Speaker 03:
Your honor, that is my understanding.

[00:28:23] Speaker 03:
I echo my colleague from the MSPP's statement that I'm not aware of a case that applies it.

[00:28:30] Speaker 03:
But if you read the perique of the Wadawad decision and the trio of the Butler decision, all that is saying is that the jurisdictional elements are met.

[00:28:43] Speaker 03:
The jurisdictional elements are met by simply, and those are all whistleblower cases,

[00:28:48] Speaker 03:
That's meant by simply alleging a protected disclosure.

[00:28:51] Speaker 03:
But there was MSPP precedent for deciding the issue of collateral estoppel at the jurisdictional stage.

[00:28:59] Speaker 03:
And the noble decision actually did decide collateral estoppel at the jurisdictional stage.

[00:29:06] Speaker 03:
even the change of law, which is only a change of law that deals with when the MSBB can decide the issue of collateral estoppel.

[00:29:15] Speaker 03:
But still, there was conflicting precedent out there that in the non-whistleblower context, they did decide it at the jurisdictional stage.

[00:29:24] Speaker 03:
But I want to real quick, and I know my time is running out.

[00:29:27] Speaker 03:
I want to talk about the appeal, or excuse me, the reopening of the appeal.

[00:29:33] Speaker 03:
And my colleague alluded to it.

[00:29:36] Speaker 03:
Petitioners state in their motion to reopen that they filed in May of 2017 that should the board reopen this appeal, the appeal to the Federal Circuit would be mooted, and there would be no reason for the court to examine the propriety of the board's application of issue preclusion and the board's decision to change the law.

[00:29:55] Speaker 03:
And on page seven of the petitioners' reply brief, petitioners say, and other places in the reply brief, they say that the harm is that they

[00:30:04] Speaker 03:
lost their appeal rights.

[00:30:06] Speaker 03:
The footnote doesn't deal with whether, as Judge Raina mentioned, whether petitioners should appeal the first action.

[00:30:14] Speaker 03:
And it should be analyzed not in the collateral estoppel context, but in the context of whether petitioners can establish good cause for filing over 18 months after the decision became final.

[00:30:29] Speaker 03:
And that is before the MSPB right now.

[00:30:33] Speaker 03:
I see that my time is up.

[00:30:34] Speaker 01:
Council, thanks for your doubt.

[00:30:37] Speaker 01:
Has a little rebuttal time, about a minute and a quarter.

[00:30:41] Speaker 05:
Thank you, Your Honor.

[00:30:42] Speaker 05:
I know I'm the last person standing between y'all and lunch.

[00:30:45] Speaker 05:
I will be concise.

[00:30:48] Speaker 05:
To address a couple of points, so the district court analogy, I think in a way is apt, but also underscores the distinction between board practice and district court practice.

[00:30:59] Speaker 05:
I do both.

[00:31:01] Speaker 05:
If you get past the motion to dismiss days in district court, you get to develop additional evidence.

[00:31:08] Speaker 05:
And in our case, we were satisfied with just getting a second review of the evidence presented.

[00:31:14] Speaker 05:
But if you want to take the analogy from district court and apply it to the board practice, if we get past that frivolous allegation stage, we would have had the opportunity to develop additional evidence than what was before Judge Weiss.

[00:31:28] Speaker 05:
There's no board rule precluding that.

[00:31:30] Speaker 05:
Again, we weren't planning on it, but if it's necessary, we would certainly do that.

[00:31:34] Speaker 05:
And that would be the normal practice.

[00:31:36] Speaker 05:
Once you get past that, you get through discovery, you develop evidence, and you get a hearing on the merits, as the board said in Perique.

[00:31:46] Speaker 05:
And I'm always disinclined to read from a case, Your Honor, but I believe it is an important case.

[00:31:53] Speaker 05:
And in paragraph 17 of the slip opinion of Perique, it was a whistleblower case, and this is what the board says.

[00:32:00] Speaker 05:
Although the appellant has raised the identical alleged protected disclosure in both appeals, the issue in the earlier action was whether, after a hearing, the appellant proved by preponderant evidence that the disclosure was protected, similar to what we've done here.

[00:32:18] Speaker 05:
The next sentence, the issue in this appeal, however, is whether on the written record,

[00:32:25] Speaker 05:
the appellant has made a non-frivolous allegation that his disclosure was protected.

[00:32:31] Speaker 05:
Same posture that we have here.

[00:32:34] Speaker 05:
And the board decided, and again, this is the old board law, that once they got past that frivolous allegation stage, they, and I quote, is entitled to a hearing on the merits.

[00:32:48] Speaker 05:
And at that point, we would have had the opportunity to develop additional evidence if we had wanted to.

[00:32:55] Speaker 05:
I think add to one of my colleagues points.

[00:32:58] Speaker 02:
Am I right in remembering that when you came the second time, this is AJ Black, do I have the day right?

[00:33:04] Speaker 05:
I believe so, your honor.

[00:33:07] Speaker 02:
That you were offered the opportunity to establish some events post-dating the August 7th or April 7th or something 2004 hearing date in the last time and you said, we got nothing else.

[00:33:24] Speaker 05:
Right, because there was only a short window between the time that they were still employed and the time they actually resigned.

[00:33:31] Speaker 05:
So there was no additional evidence.

[00:33:32] Speaker 02:
So what's the relevance of the possible ability or inability to supplement the record in this case where you didn't seek to supplement the record?

[00:33:45] Speaker 05:
We didn't seek to because we didn't believe that it was necessary under current board precedent.

[00:33:51] Speaker 05:
And that goes back to Parikh.

[00:33:53] Speaker 05:
If the court disagrees and we get a chance to, we certainly would, because the administrative judge in the second case was asking if there was any additional relevant evidence to that subsequent time period.

[00:34:05] Speaker 05:
It was about a two or three week period.

[00:34:07] Speaker 02:
Did you say that we would like to put on additional evidence as to the earlier time period?

[00:34:12] Speaker 05:
No, Your Honor, and again, because we didn't think it was necessary.

[00:34:15] Speaker 05:
What we were trying essentially to do was to get a review of Judge Weiss's decision in accordance with

[00:34:22] Speaker 05:
standing precedent from the board.

[00:34:25] Speaker 05:
And with that, Your Honors, I'll rest.

[00:34:27] Speaker 01:
Thank you, Mr. Dowd, and we'll take the case under advisement.

[00:34:30] Speaker 01:
Thank you.