[00:00:01] Speaker 04:
The next case for argument is 171137, Irwin versus Armie.

[00:00:33] Speaker 04:
We're ready whenever you are sir.

[00:01:16] Speaker 01:
It pleased the court Charles Brower, appearing on behalf of the petitioner appellant, Ilya Erwin, in this case.

[00:01:28] Speaker 01:
We're here because of a split decision by the Merit Systems Protection Board.

[00:01:34] Speaker 01:
We obviously agree with the separate opinion of Sherman's government in that case, that the Army

[00:01:46] Speaker 01:
cannot prove that it has evidence to support its termination of Mr. Erwin?

[00:01:53] Speaker 04:
Well, a lot of the grounds for Chairman Grundeman's separate analysis was she focused on the lack of candor in the determination letter.

[00:02:06] Speaker 04:
It seems like there's no dispute, however, between the parties in this case.

[00:02:11] Speaker 04:
that the agency isn't necessarily for purposes of arguing, clearing, convincing evidence to dismiss your client.

[00:02:20] Speaker 04:
The lack of candor is the only thing they can point to.

[00:02:23] Speaker 04:
I don't think you've disputed that, right?

[00:02:26] Speaker 01:
Well, we are disputing that.

[00:02:29] Speaker 01:
I mean, our position is that the CPAC 25 that was given on December 11th discussed all of the negative

[00:02:39] Speaker 01:
Aspects of what the supervisor deemed to be inappropriate actions But when the letter of termination was issued after presumably all of those allegations were considered the Specific reason given for termination was lack of candor.

[00:03:03] Speaker 01:
That's the only reason given referencing to what he told the

[00:03:08] Speaker 01:
Captain Healy on September 17, 2013, that he did not have access to CHCS.

[00:03:18] Speaker 01:
And my understanding of what Chairman Grumman said was that you have to go with what was charged in the letter with regard to the termination.

[00:03:31] Speaker 03:
Of course, he was a probational employee, right?

[00:03:35] Speaker 01:
He was a probational employee and actually

[00:03:38] Speaker 01:
terminated on his last day of employment before his one year anniversary.

[00:03:45] Speaker 03:
So all you have is the whistleblower argument.

[00:03:48] Speaker 01:
We have a whistleblower argument.

[00:03:50] Speaker 03:
And the AJ found that he would have been removed anyway, aside from a protected disclosure.

[00:03:59] Speaker 01:
Yes, but our position is that the AJ did not consider all the facts.

[00:04:04] Speaker 01:
One of the most significant facts, and what I argued,

[00:04:09] Speaker 01:
strenuously to the AJ was the November 12, 2013 evaluation, which is in the appendix, page 070.

[00:04:21] Speaker 01:
And that was given after all these supposed misconducts of Mr. Irwin took place.

[00:04:29] Speaker 01:
And in that evaluation, the two people who eventually participated in his termination

[00:04:35] Speaker 01:
did not bring up any of these acts that they say justified his termination.

[00:04:41] Speaker 01:
They gave him a good report.

[00:04:44] Speaker 01:
They said it was fair.

[00:04:45] Speaker 01:
They gave him excellent ratings with regard to medication, safety.

[00:04:51] Speaker 01:
There was no description of anything prior to November 12 of 2013.

[00:04:57] Speaker 01:
And all of the acts which they included in that CPAP 25 in December 11,

[00:05:05] Speaker 01:
took place prior to that evaluation.

[00:05:08] Speaker 01:
So it makes no sense whatsoever that he would be terminated for things prior to his evaluation, which was satisfactory.

[00:05:18] Speaker 01:
And then later they say he was terminated because of things that happened before that.

[00:05:23] Speaker 01:
It makes no sense.

[00:05:25] Speaker 01:
Is it clear and convincing?

[00:05:28] Speaker 01:
It's not clear and convincing.

[00:05:30] Speaker 01:
Why wouldn't they put in the evaluation all of the things that they say he eventually got terminated for?

[00:05:40] Speaker 04:
Can I ask you for a little more detail?

[00:05:42] Speaker 04:
And I guess you're, you're left with the credit, generally with the credibility determinations of the AJ.

[00:05:49] Speaker 04:
And in this case, he really on some of these points, he really credited the other side, but I'm a little confused about what was really happening with the approval of his use of what's it CHCS?

[00:06:02] Speaker 04:
Yeah.

[00:06:03] Speaker 04:
Because the charge itself in the discussion is about some September 17th date, but it appears that,

[00:06:10] Speaker 04:
What was really going on was that even subsequent to that date through November, your client appears to have not accessed the system and been using the system as the agency contends it thought he should have been doing.

[00:06:25] Speaker 04:
So is that right?

[00:06:26] Speaker 04:
Are we looking at that period between September and November for when he was not re-accessing the system having been told to do so?

[00:06:33] Speaker 01:
Yeah.

[00:06:34] Speaker 01:
November 17th, he had this discussion with Captain Healy.

[00:06:37] Speaker 01:
And then she wrote the email on September 18th.

[00:06:40] Speaker 01:
And then he had his meeting with Major Larrilla on September 18th.

[00:06:48] Speaker 01:
And it was discussed about him not having access to it.

[00:06:52] Speaker 01:
And we had also brought up the point that initially when he first started to work there, he didn't have access because he didn't have his

[00:07:00] Speaker 04:
Was there a lack of clarity as to whether or not the agency expected and wanted him to have access to the system?

[00:07:10] Speaker 01:
Well, there's a requirement that they have access.

[00:07:15] Speaker 01:
But initially, for two months, he didn't have access, not of his own doing.

[00:07:19] Speaker 01:
They didn't even provide him with access.

[00:07:21] Speaker 01:
And his position was that he only really needed to use the CIS system.

[00:07:26] Speaker 04:
Yeah, but his position was rejected.

[00:07:29] Speaker 04:
And let's start from there that he doesn't get to decide whether or not he should have access to be using the system.

[00:07:35] Speaker 04:
The agency gets to tell him to use it.

[00:07:37] Speaker 04:
And at some point, at least you agree that they told them to use it.

[00:07:41] Speaker 04:
And that was, in your view, September 17th, at least.

[00:07:44] Speaker 01:
September 18th.

[00:07:46] Speaker 04:
So what happened in the six weeks after that through November?

[00:07:49] Speaker 04:
When, if at all, did he get access and actually access the system and start using it in his day to day duties?

[00:07:56] Speaker 01:
Well, the A.J.

[00:07:57] Speaker 01:
found, made a finding that it was sometime in November, November 13th, I think it was.

[00:08:03] Speaker 04:
So why did it, I mean, so the agency is concerned and that's what one of the bases was, was it not, that they said that he should, he was clearly on notice, he should have accessed and used the system and he didn't for at least six weeks after the September 17th kerfuffle.

[00:08:20] Speaker 01:
Okay, well, but our position is that

[00:08:22] Speaker 01:
If that was really an issue with them, if they really had a problem with that, then it should have been included in his evaluation in November.

[00:08:31] Speaker 01:
They didn't mention anything about that.

[00:08:34] Speaker 01:
They didn't mention any real negative things that he was doing with regard to his performance.

[00:08:39] Speaker 01:
So our position is if they really actually were concerned about that, first of all, they would have had him connected for those two months at the beginning of his employment.

[00:08:50] Speaker 01:
They would have mentioned that in the CPAC20 strike, in the evaluation given to him by the two people that made the decision and supposedly had this great concern about the CHCS.

[00:09:10] Speaker 01:
So that's our position.

[00:09:11] Speaker 01:
But there's really no clear and convincing evidence that they would have taken the step to remove him

[00:09:17] Speaker 01:
Because on the CPAC 25, it has other things they can do.

[00:09:22] Speaker 01:
They can suspend him.

[00:09:24] Speaker 01:
They can demote his pay grade.

[00:09:29] Speaker 01:
And the last thing they can do is terminate him.

[00:09:33] Speaker 01:
So in our view, the evidence really doesn't show by clear and convincing evidence that they would have terminated him because of that issue about CHCS or any other things that he did.

[00:09:46] Speaker 01:
That's our position.

[00:09:49] Speaker 04:
All right, well, we serve your rebuttal.

[00:10:07] Speaker 00:
May I please the court?

[00:10:08] Speaker 00:
The board's decision should be affirmed because substantial evidence supports the board's determination that the Army proved by clear and convincing evidence

[00:10:17] Speaker 00:
that it would have removed Mr. Irwin during his probationary period for his misconduct, regardless of any protected disclosures.

[00:10:23] Speaker 04:
So the two points your friend made this morning and that's encompassed in this case are really, so I'd like you to address them.

[00:10:30] Speaker 04:
One is the point made by Chairman Grundeman and her dissent, which was that it seems like the charging letter, the termination letter, relied solely on the lack of candor.

[00:10:40] Speaker 04:
And that's at minimum an underdeveloped term with respect to what we know to be the facts in this case.

[00:10:45] Speaker 04:
And the other point your friend raises is that there was this intervening performance appraisal.

[00:10:52] Speaker 04:
And if this issue of his access to the system was the be-all and end-all of his being terminated, why was that not referenced in that appraisal letter?

[00:11:03] Speaker 04:
So why don't you address those two, if you wouldn't mind.

[00:11:05] Speaker 00:
Yes, Your Honor.

[00:11:08] Speaker 00:
We would note that, and I believe that Mr. Irwin has acknowledged this as well,

[00:11:13] Speaker 00:
There's no authority on point for a probationary employee in whistleblower action as to what the agency may rely on.

[00:11:20] Speaker 00:
So Chairman Grundman stated that the agency should have been limited to relying on lack of candor, because that was the misconduct identified in the removal letter.

[00:11:30] Speaker 00:
But there's nothing that precludes the agency from relying on all of Mr. Irwin's misconduct.

[00:11:36] Speaker 04:
And in cases of provisionary employees where there's- Let me ask you, is the government's position that that is different then?

[00:11:43] Speaker 04:
that would be the case for a career conditional or another permanent employee in terms of the removal, that in that case, does the government agree that the agency would be constrained by the specification and the termination letter?

[00:11:56] Speaker 00:
As a starting point, I think the constraint for a tenured employee would also concern due process concerns.

[00:12:02] Speaker 00:
There have been instances where the deciding official has taken into account misconduct

[00:12:09] Speaker 00:
that was not included in the notice of termination, but where the employee had a chance to respond to that information.

[00:12:16] Speaker 00:
For one instance, in one instance, the employee actually affirmatively brought it up himself in a notice of removal in response to a notice of suspension.

[00:12:25] Speaker 00:
That was the Kermes case.

[00:12:26] Speaker 00:
Then the court has found that there has been no due process violation.

[00:12:32] Speaker 00:
But here, there is a probationary employee.

[00:12:34] Speaker 00:
Probationary employees don't have

[00:12:37] Speaker 00:
the same rights to notice and response.

[00:12:40] Speaker 04:
And again, there was no improper procedure followed here, but when the agency was in the position of- Isn't it kind of probative, I mean, irrespective of whether there's a due process problem, any of that, or even a requirement that they can't go beyond the four corners of the termination letter, isn't it kind of probative that that wasn't the basis, there wasn't clear and convincing evidence for the agency to take that action?

[00:13:05] Speaker 04:
if all they relied on was something that I think we can all agree is arguably insufficient to satisfy the requirements.

[00:13:15] Speaker 00:
Well, as Mr. Irwin's counsel pointed out, all of the misconduct that the agency ultimately relied on at the hearing was discussed in the request for

[00:13:27] Speaker 00:
Adverse action and so this it wasn't that the yeah, but they make a big deal They kind of use that against you because they point out do they not that the request for adverse action was rejected and so that should cut the other way an initial CPAC was rejected and that concerned mr.

[00:13:47] Speaker 00:
Erwin leaving the Hawaii area to travel to Florida when he was on call.

[00:13:53] Speaker 04:
And so that was rejected.

[00:13:54] Speaker 04:
But ultimately, that was one of the factors that the AJ relied on to establish.

[00:13:58] Speaker 00:
The AWOL charge itself was rejected because there was an error by a timekeeper who recorded the time as leave without pay rather than AWOL.

[00:14:07] Speaker 00:
And so the initial CPAC described the charge as AWOL.

[00:14:12] Speaker 00:
And when they looked at it internally and saw the timekeeper mistake,

[00:14:16] Speaker 00:
They no longer refer to that as AWOL.

[00:14:18] Speaker 00:
However, they did continue in the Subsequency Act to mention his failure to report for duty when called.

[00:14:26] Speaker 00:
I don't think that Mr. Irwin gets the benefit of the timekeeper's error to make that misconduct suddenly be proper conduct.

[00:14:34] Speaker 04:
What about the fact that the appraisal that was done with him during this period didn't reference any of this other stuff?

[00:14:41] Speaker 00:
Well, initially, we would point out that there was a counseling session with Mr. Erwin immediately regarding CHCS access as soon as his supervisor, Colonel Luria, was notified that he lacked access.

[00:14:55] Speaker 00:
And we don't dispute that the evaluation doesn't bring up these issues again.

[00:15:03] Speaker 00:
However, whether or not it was, this is really, again, a notice argument.

[00:15:10] Speaker 00:
And whether or not Mr. Irwin was on notice of his misconduct is really irrelevant to whether or not the agency proved that such misconduct was the reason for his removal.

[00:15:22] Speaker 00:
And the board.

[00:15:23] Speaker 04:
It's not just a notice requirement.

[00:15:25] Speaker 04:
It's not just a notice issue, right?

[00:15:28] Speaker 04:
It's a question that's the agency's burden to establish by clearing convincing evidence they would have taken this action anyway.

[00:15:35] Speaker 04:
So all of these fact arrows at least point, do they not?

[00:15:40] Speaker 04:
to the fact there was not clear and convincing evidence?

[00:15:44] Speaker 04:
Because you'd assume if there's a real problem with an employee with regard to access to the system, that would be reflected in the performance appraisal of that individual for that period of time.

[00:15:55] Speaker 00:
Again, Mr. Irwin was counseled on this, and the agency did take it very seriously.

[00:16:01] Speaker 00:
As Your Honor noted to Mr. Irwin's counsel, the lack of access continued beyond the September 18

[00:16:08] Speaker 00:
counseling for two months.

[00:16:11] Speaker 00:
During that time, there was a very serious patient safety event that occurred because of Mr. Irwin's lack of access to CHCS.

[00:16:20] Speaker 00:
He was unable to admit a patient to the ICU through a CHCS, which caused an undue delay in the patient receiving medication.

[00:16:32] Speaker 00:
I think that the evaluation

[00:16:36] Speaker 00:
Yes, we recognize that there isn't mention of this misconduct in the evaluation, but the agency did prove by clear and convincing evidence that each of these categories of misconduct occurred.

[00:16:49] Speaker 00:
And the lack of candor, while we recognize that the AJ did not use that term, he did clearly discuss that there was both a known requirement that Mr.

[00:17:01] Speaker 00:
Erwin maintain access to CHCS and report any loss to his direct supervisor if there was a loss of access and that he failed to do so.

[00:17:09] Speaker 00:
The administrative judge also found that... So that's the lack of candor?

[00:17:16] Speaker 00:
Yes, he had an obligation to report if he lost access to a system and his failure to report was a lack of candor.

[00:17:26] Speaker 04:
And was this failure to report as of September 17th, because that's the timeframe in the termination letter, or was it what the AJ I thought was talking about, which is really focusing on the six week or eight week period following the September 17th?

[00:17:43] Speaker 00:
No, I believe that the period following is the continued failure to maintain access, which the AJ also found to be misconduct.

[00:17:53] Speaker 00:
But the lack of candor relates to the known obligation, and this was something that was included in what's called an initial counseling document that lays out physician descriptions.

[00:18:05] Speaker 00:
It was something that Mr. Irwin himself submitted to the board.

[00:18:09] Speaker 00:
That document says that if you

[00:18:12] Speaker 00:
you are required to make access to CHCS.

[00:18:15] Speaker 00:
And if you lose access, you are required to report that to your direct supervisor.

[00:18:19] Speaker 04:
Now, your friend referred to something, and I don't recall it in the record, which is that his client could not access the system for a two-month period early on.

[00:18:29] Speaker 00:
Is that correct?

[00:18:31] Speaker 00:
There is reference in the record to when Mr. Irwin's account became active, which I

[00:18:42] Speaker 00:
I believe was in, I think, May.

[00:18:47] Speaker 00:
And there wasn't any view by the agency that that itself was misconduct, but that once his account became active, at that point he had a duty to maintain access.

[00:19:01] Speaker 00:
The position description, the initial counseling document, also talks about how important it is to regularly

[00:19:07] Speaker 00:
log in because the system will kick you out and you will lose access if you haven't logged in for 30 days.

[00:19:14] Speaker 00:
And this is a system that is used for many critical events.

[00:19:17] Speaker 00:
It's used for electronically moving, transferring, activating, admitting and discharging patients within the system.

[00:19:23] Speaker 03:
So the lack of candor was not reporting that he didn't have access to the system.

[00:19:29] Speaker 00:
Right.

[00:19:29] Speaker 00:
He failed to report to his direct supervisor as he had a known requirement to do that he lost access to the system.

[00:19:36] Speaker 00:
And the only way that his supervisors found out about that was because he told a colleague that he didn't have access to the system, and the colleague informed the supervisors.

[00:19:46] Speaker 02:
So is it correct that the government is not arguing, not relying at all on the fact that this was still the probationary period, but that the entire procedure is determined on the merits of the action as if this was not a probationary employee

[00:20:08] Speaker 00:
Well, this is a whistleblower retaliation action.

[00:20:11] Speaker 00:
And so the agency has an obligation, as in any retaliation action, to prove by clear and convincing evidence that it would have taken the disputed action.

[00:20:21] Speaker 00:
However, I think that the fact that he's a probationary employee does come into play for some things like what we've been discussing, whether or not the agency was limited to just relying on the lack of candor charge or if they could present comprehensive evidence of Mr. Irwin's

[00:20:38] Speaker 00:
misconduct.

[00:20:39] Speaker 00:
I would also note that the administrative judge made a specific finding that the agency had demonstrated that it would have removed Mr. Irwin based on any one of the acts of misconduct.

[00:20:51] Speaker 00:
So even if the agency was limited to the lack of candor charge, the A.J.

[00:20:57] Speaker 00:
found, and we think that there is evidence for this since there was a known duty to report information that he failed to report.

[00:21:04] Speaker 02:
Now that's a long answer to a one-word question.

[00:21:08] Speaker 02:
Your response is, no, it's irrelevant that he was a probationary employee.

[00:21:15] Speaker 00:
Yes or no?

[00:21:16] Speaker 00:
The standard is the same, but... The standard is not the same.

[00:21:21] Speaker 00:
Well, the agents must show by clear and convincing evidence.

[00:21:24] Speaker 02:
If the standard applies, whether or not a person is a probationary employee, we then ignore the prescriptions, the different

[00:21:37] Speaker 02:
views that I think precedent applies to probationary employees and the need for establishing detailed support as we're discussing, as both of you, you and your friend, are discussing the merits of the removal, the grounds for the removal.

[00:21:57] Speaker 02:
And you're saying it's irrelevant that this was within the probationary year.

[00:22:03] Speaker 00:
I don't think it's irrelevant.

[00:22:04] Speaker 00:
I think that... Then what does it mean if it's not irrelevant?

[00:22:08] Speaker 00:
It means that Mr. Irwin had no right to notice and response.

[00:22:16] Speaker 00:
And so when he's challenging the evidence that the agency presented of his misconduct on the basis that he didn't have notice of it, that's simply an argument that he has no basis to make because he didn't have those due process rights.

[00:22:31] Speaker 03:
You're saying there are two issues.

[00:22:33] Speaker 03:
One is the whistleblowing.

[00:22:37] Speaker 03:
If he would have been fired anyway, in your view, that defeats the whistleblowing claim.

[00:22:44] Speaker 03:
But for anything else, he's out of court because of his probationary.

[00:22:50] Speaker 00:
Yes.

[00:22:51] Speaker 00:
A probationary employee has no right to directly challenge their removal.

[00:22:56] Speaker 00:
The only way they can get before the MSPB is in an IRA action like he filed.

[00:23:02] Speaker 00:
And there's no right to challenge.

[00:23:04] Speaker 04:
But as a practical matter, applying those dueling principles in this case, the difference between his case and a non-probationer's case goes to whether or not we're constrained to look at what the agency said in the notice of removal or the termination letter, or whether we can go beyond that.

[00:23:23] Speaker 00:
That's fair.

[00:23:24] Speaker 00:
And I think that the court can go beyond it as the board did.

[00:23:32] Speaker 00:
Mr. Irwin did not have notice of the misconduct prior to his removal.

[00:23:37] Speaker 00:
He did have an opportunity to respond to each of the claims of misconduct during the administrative hearing and the A.J.

[00:23:47] Speaker 00:
credited the agency witnesses over him in each instance.

[00:23:52] Speaker 00:
If the court has no further questions.

[00:23:54] Speaker 00:
Thank you.

[00:24:06] Speaker 01:
Well, I mean, the Army argues that they would have terminated Mr. Irwin despite his whistleblowing activity.

[00:24:13] Speaker 01:
But again, that makes no sense in this case, because he had one meeting with Major Lerilla on September 18th.

[00:24:24] Speaker 01:
He discussed the issue about CHCS.

[00:24:26] Speaker 01:
There were no further counseling sessions after that.

[00:24:30] Speaker 01:
Then almost two months later, he gets

[00:24:34] Speaker 01:
his report, which doesn't mention anything about any negative things that he's doing.

[00:24:39] Speaker 01:
He should be going to more meetings.

[00:24:42] Speaker 01:
He should join some committee.

[00:24:44] Speaker 01:
But his ratings regarding patient care were good.

[00:24:47] Speaker 01:
And with regard to the due process issue, our position is that he should have at least been notified of the things that he was doing wrong.

[00:24:59] Speaker 01:
And he could be terminated for and give him a chance to respond to it.

[00:25:03] Speaker 01:
They never did that.

[00:25:05] Speaker 01:
They submitted that CPAC 25 on December 15.

[00:25:07] Speaker 03:
But those relate to the fact that he's probationary.

[00:25:13] Speaker 03:
These are other issues, right, other than whistleblowing.

[00:25:19] Speaker 01:
Judge, I'd like to point out that on the CPAC 25, it specifically says in number five and six, did you notify Mr. Irwin of the things that he did wrong?

[00:25:32] Speaker 01:
They said yes.

[00:25:33] Speaker 01:
When did he do it?

[00:25:34] Speaker 01:
September 18th, they said.

[00:25:37] Speaker 01:
The only thing that was discussed on September 18th was the CHCS issue.

[00:25:42] Speaker 01:
And it says also, was he given a chance to... But those aren't whistleblowing issues.

[00:25:49] Speaker 03:
They are right to appeal issues, and he doesn't have the right to raise those issues because he's probationary.

[00:25:57] Speaker 03:
Isn't that correct?

[00:25:59] Speaker 01:
Well, our position is, as a probationary, he's still entitled to notice

[00:26:04] Speaker 01:
of what he's doing wrong and a chance to defend himself.

[00:26:09] Speaker 01:
People that are not probation have a right to counsel and a right to a full hearing.

[00:26:14] Speaker 01:
Before that, you don't get those.

[00:26:15] Speaker 01:
But at least even the CPAC 25 says, did you notify him about what he did wrong?

[00:26:21] Speaker 01:
They said yes.

[00:26:21] Speaker 01:
They didn't.

[00:26:22] Speaker 01:
They filed the CPAC 25 on December 11.

[00:26:27] Speaker 01:
He was not notified about any of these other issues that they were raising, about his

[00:26:31] Speaker 01:
his danger as a nurse.

[00:26:33] Speaker 01:
They let him stay on.

[00:26:34] Speaker 01:
They didn't counsel him.

[00:26:36] Speaker 01:
And then the very last moment that they had to terminate him, because his last duty was on February 6, just before, because you don't have to go to the one year period, just before that, then they give him the termination letter.

[00:26:53] Speaker 01:
And they say, lack of candor, which there was no lack of candor, because they didn't give a false statement.

[00:27:02] Speaker 01:
Therefore, our position is there's not clear and convincing evidence that they would have terminated him, except for the whistleblowing.

[00:27:13] Speaker 01:
Anything further?

[00:27:14] Speaker 01:
I have nothing further.

[00:27:14] Speaker 01:
Thank you.

[00:27:15] Speaker 04:
We thank both sides, and the case is submitted.