[00:00:00] Speaker 01:
2025 Hanson versus MSV.

[00:00:40] Speaker 01:
Mr. McComber?

[00:00:41] Speaker 01:
McComber.

[00:00:42] Speaker 01:
McComber, please proceed.

[00:00:44] Speaker 04:
Good morning.

[00:00:45] Speaker 04:
May it please the court.

[00:00:46] Speaker 04:
My name is Michael McComber.

[00:00:47] Speaker 04:
I represent the appellant, Adelco Hanson, in his appeal to Merit System Protection Board's decision denying jurisdiction in his case.

[00:00:55] Speaker 04:
There are two essential issues on appeal here.

[00:00:58] Speaker 04:
The first is whether the administrative judge erred in finding that Mr. Hanson or Dr. Hanson did not non-frivolously allege a protected disclosure.

[00:01:08] Speaker 04:
The second issue being whether or not the administrative judge erred and not analyzed.

[00:01:12] Speaker 02:
On page 23 of the blue brief, Mr. Hanson argues that it was wrong for the administrative judge to dismiss the first four disclosures because AJ's argument completely, I find it interesting you say it's an argument, completely disregards the fact that Colonel Tate removed a qualified medical professional from the

[00:01:37] Speaker 02:
president of Afghanistan stands bedside and replaced the professional with someone unqualified for the position.

[00:01:44] Speaker 02:
Who's the unqualified person?

[00:01:45] Speaker 04:
The unqualified person was actually Colonel Tate herself.

[00:01:48] Speaker 04:
Right.

[00:01:48] Speaker 04:
She removed a, I believe it was a nurse practitioner and replaced herself a midwife by training to provide care.

[00:01:56] Speaker 02:
Is she a midwife or a nurse midwife?

[00:01:58] Speaker 04:
I believe she was a midwife and that was the disclosure.

[00:02:01] Speaker 02:
You believe it.

[00:02:02] Speaker 04:
I, you know, at this point in time I can't confirm.

[00:02:04] Speaker 02:
But I believe the disclosure that he made... Is there a position in the armed forces for a midwife as opposed to a nurse midwife?

[00:02:11] Speaker 04:
To my knowledge, I'm not aware of that.

[00:02:14] Speaker 02:
Well, if you can't answer that question, then your whole case goes away, doesn't it?

[00:02:18] Speaker 04:
No, it does not.

[00:02:19] Speaker 04:
Because what you're talking about is an issue of the merits.

[00:02:22] Speaker 04:
Because here, what the court needs to look at is an issue of subject matter jurisdiction.

[00:02:27] Speaker 04:
The administrative judge dismissed this case based on the fact that

[00:02:32] Speaker 04:
He did not make these non-frivolous allegations.

[00:02:34] Speaker 04:
Whether or not she's a midwife or a nurse midwife or any of these other allegations, whether the reassignment of medical staff to non-medical staff, those are issues of merits.

[00:02:45] Speaker 04:
And on the question of jurisdiction, the board's limited to looking at whether or not the appellant has non-frivolously alleged a protected disclosure, gross mismanagement, abuse, waste, violation of law, rule, or regulation.

[00:02:59] Speaker 04:
So with respect to that fourth disclosure that you're referring to, Your Honor, Dr. Hanson disclosed that Colonel Tate abused her authority in replacing a qualified medical professional with herself for the sole purpose of getting closer to the president of Afghanistan for a photo opportunity.

[00:03:19] Speaker 04:
There cannot be any clearer example of an abuse of authority at that point in time to take advantage of her position for personal gain.

[00:03:25] Speaker 01:
Well, to be clear, what he alleged was

[00:03:28] Speaker 01:
that she replaced herself an unqualified person.

[00:03:34] Speaker 01:
She replaced a qualified person with herself an unqualified person.

[00:03:37] Speaker 01:
And he then said she touched sterile equipment, rendering it unsterile.

[00:03:43] Speaker 01:
He believed that she endangered his ability to provide medical treatment.

[00:03:48] Speaker 01:
Is that true?

[00:03:49] Speaker 01:
Yes.

[00:03:50] Speaker 01:
The allegations as you understand them.

[00:03:53] Speaker 01:
Well, then wouldn't it be relevant whether or not

[00:03:56] Speaker 01:
she actually is qualified or not.

[00:03:59] Speaker 01:
I mean, I understand he's alleged she's only a midwife.

[00:04:03] Speaker 01:
And it seems hard for me to believe that a midwife would be qualified to treat a male president of a country because, you know, they don't have those parts.

[00:04:11] Speaker 01:
But, you know, if she's not just a midwife and she's actually a nurse and a midwife, then theoretically she would be eligible to assist him.

[00:04:21] Speaker 01:
Do you think then that that has to go to the merits, i.e.

[00:04:24] Speaker 01:
a full trial, or could there be a jurisdictional hearing that takes place to make that determination?

[00:04:28] Speaker 04:
There could be a jurisdictional hearing, but one was not had here, and that's the problem we have.

[00:04:32] Speaker 04:
At the jurisdictional stage, the appellant need only allege

[00:04:36] Speaker 04:
a non-frivolous allegation that he reasonably believes a violation occurred.

[00:04:41] Speaker 04:
And the problem we have here is that no hearing ever happened.

[00:04:44] Speaker 04:
You take a look at the other cases that we cite, the Drake case, the Johnston case, and the Gilbert case.

[00:04:50] Speaker 04:
In each one of those cases, this court reversed the Merit Systems Protection Board because the appellant non-frivolously alleged a violation.

[00:04:58] Speaker 04:
For example, in the Drake case,

[00:05:00] Speaker 04:
The appellant came forward and said a bunch of, I believe again it was the Army, were drinking while in theater overseas.

[00:05:08] Speaker 04:
Now the court specifically points out whether or not they met the definition of intoxicated or not is not relevant at the question of jurisdiction at the subject matter jurisdiction phase.

[00:05:18] Speaker 04:
When we get to the merits of the case after a hearing when an initial decision is rendered, yes, that's the appellant's burden to prove to ultimately prevail on their claim.

[00:05:28] Speaker 04:
But at the jurisdictional level,

[00:05:30] Speaker 04:
The level of proof that is required is significantly lower than it would be if we were to establish the merits of a claim.

[00:05:38] Speaker 04:
Taking for example as well the first disclosure there.

[00:05:42] Speaker 04:
The administrative judge characterizes this repeatedly as just a mere staffing assignment.

[00:05:47] Speaker 04:
Dr. Hanson disclosed to the Office of Special Counsel as well to the Merit Systems Protection Board that this was not a mere staffing reassignment.

[00:05:56] Speaker 04:
He specifically disclosed that seven lieutenant colonels, three majors, and an independent contractor, who were all medical staff, were removed and replaced with non-medical staff, thereby jeopardizing the agency's mission

[00:06:10] Speaker 04:
to establish and provide quality medical care in Afghanistan at that time.

[00:06:15] Speaker 01:
Whether or not that's a question.

[00:06:17] Speaker 01:
But the problem there is the lower court held, he doesn't allege specifics as to what, if any, health or harm or abuse of power that amounts to.

[00:06:26] Speaker 01:
He did with regard to Colonel Tate replacing the person in a particular setting.

[00:06:32] Speaker 01:
Those are specifics.

[00:06:34] Speaker 01:
The rest of the claims are at a level of generality that I'm not sure that a reasonable person reading them, he replaced medical staff with non-medical staff.

[00:06:43] Speaker 01:
Well, suppose those medical staff were doing administrative functions.

[00:06:47] Speaker 01:
Do you understand?

[00:06:47] Speaker 01:
He didn't articulate that the medical staff were necessary to actually give flu shots or whatever.

[00:06:53] Speaker 01:
He didn't articulate what they were doing and what the new non-medically trained staff were doing that did, in fact, jeopardize the health mission.

[00:07:03] Speaker 01:
level of specificity, it seems to me, for many of these claims that would be necessary for a non-frivolous allegation.

[00:07:10] Speaker 04:
If you look at the other cases that I cite to, the Johnston and the Gilbert case as well, again, we talk about the specificity that is required here.

[00:07:18] Speaker 04:
At the jurisdictional phase to establish subject matter jurisdiction, in Johnston, the appellate came forward and identified that the agency had replaced safety management individuals

[00:07:31] Speaker 04:
with people who lack the necessary training to do that.

[00:07:34] Speaker 04:
Now, Johnson's probably the far end of the spectrum.

[00:07:36] Speaker 04:
They're dealing with nuclear weapons and things of that nature.

[00:07:39] Speaker 04:
But it's the same type of allegation, that you're taking qualified employees and replacing them with non-qualified employees, which could cause a substantial risk of harm.

[00:07:50] Speaker 04:
In that case, it was specific harm to those individuals.

[00:07:54] Speaker 04:
In this case, in Dr. Hanson's case, he made a disclosure that these reassignments

[00:08:00] Speaker 04:
to provide non-medical staff to do that is going to jeopardize... To do what?

[00:08:04] Speaker 01:
That's the problem.

[00:08:06] Speaker 01:
To do what?

[00:08:06] Speaker 01:
Non-medical staff to do what?

[00:08:08] Speaker 01:
He didn't allege what the people were doing that would amount to a harm to health or human services or an abuse of discretion.

[00:08:17] Speaker 01:
To do what?

[00:08:18] Speaker 01:
Replace them to do what?

[00:08:20] Speaker 01:
Right, and what we also have to keep in mind.

[00:08:21] Speaker 01:
Right, now you can't say right, it's a question.

[00:08:22] Speaker 04:
Okay, the question is, should he replace, or Colonel, take the time to replace the medical staff with non-medical staff?

[00:08:28] Speaker 01:
Not the entire medical staff, certain individuals.

[00:08:31] Speaker 01:
Yes, the left.

[00:08:32] Speaker 01:
But what is the allegation that those individuals were performing?

[00:08:35] Speaker 01:
What tasks were they performing that the now, according to you, non-qualified individuals are performing?

[00:08:41] Speaker 04:
When we take a look at the appendix on page 46.

[00:08:44] Speaker 01:
My law clerks have law degrees, but sometimes the things that they carry my briefs down here and put them on the desk.

[00:08:50] Speaker 01:
I don't need a law degree to do that.

[00:08:51] Speaker 01:
I could replace them with someone who was capable of doing that.

[00:08:55] Speaker 04:
But that's a very good example.

[00:08:56] Speaker 04:
But if you were to replace your law clerks with people that hadn't attended law school, with a bunch of high school people that hadn't even gone to college, would that not cause a risk?

[00:09:04] Speaker 04:
Would you not be worried that they wouldn't know how to research case law?

[00:09:07] Speaker 01:
I wouldn't be worried if those people were only

[00:09:09] Speaker 01:
carrying my briefs down and putting them here.

[00:09:11] Speaker 01:
And if I had other people up in my chambers who were helping me with cases.

[00:09:15] Speaker 01:
But what we don't have is an allegation here that the non-medically trained staff were providing any medical services.

[00:09:22] Speaker 01:
We don't even have an allegation to that extent.

[00:09:25] Speaker 04:
So the allegation here is that it is detrimental to the agency's mission.

[00:09:29] Speaker 05:
You're just stating a conclusion.

[00:09:31] Speaker 05:
You're saying this happened, and the conclusion is that this is an abuse of authority, or it's

[00:09:38] Speaker 05:
a substantial danger to public health or safety, but you're not providing any connection between an event that happened and what that conclusion is.

[00:09:48] Speaker 05:
You can't just state, I said this, that could have caused this, and make that a disclosure.

[00:09:54] Speaker 05:
That's not a non-frivolous allegation of a disclosure.

[00:09:58] Speaker 04:
I disagree.

[00:09:59] Speaker 04:
I think, you know, Dr. Hanson came forward in both his OSC complaints and to the submissions to the administrative judge and specifically identified that it was impacting the agency's mission.

[00:10:09] Speaker 04:
How?

[00:10:10] Speaker 04:
By replacing qualified medical staff.

[00:10:13] Speaker 05:
No, you're just repeating the same thing over and over again, which is they replaced these people and it impacted the mission.

[00:10:19] Speaker 05:
How?

[00:10:20] Speaker 04:
Again, at the jurisdictional stage,

[00:10:23] Speaker 04:
to make the non-frivolous allegation, he doesn't have to go into that level of specificity.

[00:10:27] Speaker 04:
A level of specificity is required, but it is also focusing on the fact that... It can be completely conclusory though.

[00:10:34] Speaker 02:
Is that your point?

[00:10:35] Speaker 04:
No, it cannot be completely conclusory.

[00:10:37] Speaker 02:
But what you're saying is completely conclusory.

[00:10:39] Speaker 04:
I disagree.

[00:10:40] Speaker 04:
He identified 11 specific employees.

[00:10:42] Speaker 02:
Well, your disagreeing doesn't help.

[00:10:44] Speaker 04:
I understand that.

[00:10:45] Speaker 04:
But this was but one of several disclosures that were made.

[00:10:49] Speaker 04:
I see that I'm getting into my rebuttal time.

[00:10:51] Speaker 04:
I'd like to reserve that.

[00:10:52] Speaker 01:
Absolutely.

[00:10:54] Speaker 01:
OK.

[00:10:55] Speaker 01:
Are we hearing from Mr. Fung first?

[00:10:58] Speaker 03:
Yes.

[00:11:03] Speaker 03:
May it please the court.

[00:11:04] Speaker 03:
I'd like to start, actually, by addressing Judge Wallach and Judge Moore's point about Colonel Tate's qualifications, which is it's not in the record as to whether she's a nurse midwife, certified nurse midwife, or just regular midwife.

[00:11:16] Speaker 03:
And that's the problem, as you both pointed out.

[00:11:19] Speaker 03:
Nobody knows.

[00:11:21] Speaker 03:
I don't know.

[00:11:21] Speaker 03:
Mr. McComber doesn't know.

[00:11:23] Speaker 03:
It's not clear.

[00:11:23] Speaker 03:
Dr. Hanson knows.

[00:11:25] Speaker 03:
Nobody knows from this record whether she was qualified or not in that level

[00:11:30] Speaker 03:
of nonspecificity is why that allegation was simply not enough to make a nondivisal allegation of protective disclosure.

[00:11:37] Speaker 02:
Is there such a position in the armed forces?

[00:11:41] Speaker 03:
I don't know of that either, and that's not in the record either.

[00:11:43] Speaker 03:
All we know is that he felt she was not qualified because she was a midwife.

[00:11:48] Speaker 03:
But a midwife does have some basic level of medical training, such that they're at least allowed to be present

[00:11:54] Speaker 03:
We don't know that.

[00:11:55] Speaker 01:
Where in the record is that?

[00:11:56] Speaker 01:
By the way, have you done research of states' certifications of midwives?

[00:12:00] Speaker 01:
Because in some places, it's my understanding people can hold themselves out as a midwife with no actual medical training and no certification or state registration or anything.

[00:12:09] Speaker 03:
I have not, because it's not in the record.

[00:12:11] Speaker 03:
And he needed to allege more to establish that he had a reasonable belief that her action in replacing the other individual was arbitrary and capricious to establish as an abuse of authority.

[00:12:21] Speaker 03:
Simply saying that she's a midwife

[00:12:23] Speaker 03:
is not specific enough to establish that.

[00:12:28] Speaker 01:
Did he say she's a midwife, or she's only a midwife and thus unqualified to treat?

[00:12:33] Speaker 03:
I believe she just said a midwife.

[00:12:35] Speaker 03:
I don't think he said unqualified to treat.

[00:12:37] Speaker 01:
Well, he definitely said unqualified to treat.

[00:12:39] Speaker 01:
He did.

[00:12:39] Speaker 03:
He said unqualified to treat, but just saying she's a midwife, I don't think it's specific enough to establish that she's unqualified to treat, because the nature of the treatment is also not alleged in the... He's a dude.

[00:12:52] Speaker 03:
That is correct.

[00:12:53] Speaker 03:
But still, there is some basic level.

[00:12:58] Speaker 01:
Never thought I'd have to work dude into an oral argument.

[00:13:02] Speaker 03:
Sort of a negative prejudice.

[00:13:04] Speaker 03:
It's a first for me too, Your Honor.

[00:13:05] Speaker 01:
She'd be qualified to work on that.

[00:13:08] Speaker 03:
There still needs to be a level of specificity beyond just saying she's unqualified.

[00:13:12] Speaker 03:
As you pointed out, his allegation was very conclusive to that effect.

[00:13:15] Speaker 03:
And without saying more, he hasn't made a non-pillowless allegation of a protected disclosure.

[00:13:21] Speaker 01:
But you said you don't know whether she's only a midwife.

[00:13:24] Speaker 01:
The record doesn't reflect whether she's only the midwife.

[00:13:26] Speaker 01:
And then you actually said, and Mr. Hanson doesn't know whether she's a midwife.

[00:13:30] Speaker 01:
Don't you think Mr. Hanson A probably does know?

[00:13:32] Speaker 01:
I mean, he's the one who made the allegation.

[00:13:34] Speaker 01:
How can you assert what you think Dr. Hanson knows and doesn't know?

[00:13:37] Speaker 03:
I'm saying I don't know if he knows, but I'm saying the record doesn't indicate what he knows either.

[00:13:41] Speaker 03:
And that's the problem with his allegation.

[00:13:43] Speaker 03:
He needs to include more about what her qualifications were to actually establish.

[00:13:48] Speaker 01:
He just has to make a non-frivolous allegation.

[00:13:50] Speaker 01:
I mean, he said she's not qualified to treat the president of Afghanistan.

[00:13:55] Speaker 01:
She's a midwife.

[00:13:56] Speaker 01:
The president's a guy.

[00:13:57] Speaker 01:
I mean, why isn't that enough?

[00:14:01] Speaker 03:
Well, I think your point actually presupposes also that the midwife is not necessarily capable of treating a man himself, and that needs to be further elaborated on to reach the non-further south.

[00:14:13] Speaker 03:
Are you serious?

[00:14:15] Speaker 01:
Yeah?

[00:14:15] Speaker 03:
Yeah, sure.

[00:14:16] Speaker 03:
All right.

[00:14:20] Speaker 03:
What he needs to do is include specific details about his

[00:14:24] Speaker 03:
allegations to establish that a reasonable person would look at these.

[00:14:28] Speaker 01:
So the difference in this case would have been, according to you, if the complaint said, and because midwives work on girl parts, not boy parts, and he has boy parts.

[00:14:41] Speaker 01:
That's the addition that needed to be in here to give it the level of specificity that you're saying would suffice?

[00:14:46] Speaker 01:
A midwife doesn't work on guys?

[00:14:49] Speaker 01:
It has to say that expressly?

[00:14:50] Speaker 03:
I'm saying it needs to address what her qualifications were more than just

[00:14:54] Speaker 03:
male versus female.

[00:14:55] Speaker 03:
Yes, Your Honor.

[00:14:56] Speaker 03:
He needs to allege what her qualifications were about her midwife status, especially given, as you pointed out, there are different types of midwives.

[00:15:03] Speaker 03:
He needs to allege that she was the type of midwife that may have been one of those.

[00:15:07] Speaker 01:
Well, I suggested there were different types of midwives.

[00:15:09] Speaker 01:
I suggested that states had different levels of certification or non-certification as required for midwives.

[00:15:16] Speaker 01:
I didn't suggest that I believed that midwives treat men, nor does the record have any suggestion to that extent.

[00:15:24] Speaker 03:
But I believe it is that lack of specificity and that lack of further detail about her visualized qualifications that makes this allegation privilege rather than not.

[00:15:35] Speaker 03:
Going back to the first allegation about her replacing what he called qualified medical staff with unqualified individuals, you pointed out also that he doesn't allege why this was a bad action.

[00:15:48] Speaker 03:
He just says this harmed the agency's ambition, or he said it harmed the agency's ability to professionalize the medical staff

[00:15:55] Speaker 01:
Don't you think in a situation like this, you all should just have a quick jurisdictional hearing?

[00:15:58] Speaker 01:
Because this question is imminently answerable.

[00:16:00] Speaker 01:
Is she just a midwife?

[00:16:03] Speaker 01:
What is she qualified to do and not do?

[00:16:05] Speaker 01:
The question is so easily answered in a jurisdictional hearing.

[00:16:09] Speaker 01:
This doesn't have to go to the merits.

[00:16:11] Speaker 01:
Why don't you all do that in situations like this?

[00:16:13] Speaker 03:
Because jurisdiction is established by non-police allegations, whistleblower cases.

[00:16:16] Speaker 03:
So hearings are more appropriate for it.

[00:16:19] Speaker 01:
Wait, let me just play this out for you.

[00:16:21] Speaker 01:
We've got a doctor who says his supervisor

[00:16:25] Speaker 01:
took out his PA, his physician's assistant, replaced the physician's assistant with herself.

[00:16:32] Speaker 01:
When he was treating the president of Afghanistan at the president's palace, she then, she is not qualified to offer the medical treatment, he says.

[00:16:42] Speaker 01:
And he says, while she's there, she touched a lot of sterile equipment, rendering it unusable.

[00:16:47] Speaker 01:
She upset the president of Afghanistan so much that he called the base and said, don't ever let that woman come to my house again.

[00:16:56] Speaker 01:
He complains to her supervisor, Commander Witter, I don't know if I'm getting the name right, that she did this.

[00:17:05] Speaker 01:
After she finds out he complained about her having done this, she comes to him, yells at him, according to him, yells at him for having done that.

[00:17:16] Speaker 01:
And the very next day, according to him, just one day after she confronts him and yells at him for having complained about her, he's told that she has removed him from his position and sending him home.

[00:17:26] Speaker 01:
Those are the facts alleged.

[00:17:28] Speaker 01:
Now, they may not be true, but how is that a non-frivolous allegation that a protected disclosure that could be a contributing cause to someone's removal?

[00:17:36] Speaker 03:
I mean, when you lay it out like that, it's... I think part of your hypothetical, Your Honor, is about whether or not there was a contributing factor, and that... Well, that's part of the determination of whether there's a protected disclosure, right?

[00:17:50] Speaker 03:
Whether there's a contributing factor is not part of the determination as to whether or not there's a protected disclosure.

[00:17:54] Speaker 01:
The only part- Well, whether there's a protected disclosure that is a contributing factor, both.

[00:17:58] Speaker 01:
But how is that not meet at least a non-frivolous allegation standard?

[00:18:02] Speaker 01:
Because you have to allege both, right?

[00:18:03] Speaker 01:
You have to allege protected and contributing in non-frivolous.

[00:18:06] Speaker 03:
You have to allege both if you look at them separately.

[00:18:08] Speaker 03:
You can't look at them together.

[00:18:10] Speaker 03:
So you look at the protected disclosure part individually just to see whether or not- I understand.

[00:18:14] Speaker 01:
And your point is well taken.

[00:18:15] Speaker 01:
But why isn't that enough just to meet the non-frivolous allegation?

[00:18:19] Speaker 01:
Now, if it is untrue, can't the government come in very quickly in a jurisdictional hearing, ask for one upfront, no merits, and just say, here's her certification.

[00:18:28] Speaker 01:
Turns out she is, in fact, a nurse.

[00:18:30] Speaker 01:
That makes his claim that she's unqualified completely frivolous.

[00:18:33] Speaker 03:
Because that would not actually be appropriate at the jurisdictional stage for the MSPB's non-frivolous allegation determinations.

[00:18:39] Speaker 03:
They do not consider evidence from the other side.

[00:18:42] Speaker 05:
They only consider... In whistleblower cases, a non-frivolous allegation establishes jurisdiction.

[00:18:47] Speaker 05:
It's distinct from...

[00:18:49] Speaker 05:
removal cases, particularly the involuntary removal cases, where if it's a non-frivolous allegation, that gets you to a jurisdictional hearing on whether the removal was voluntary or not.

[00:19:01] Speaker 03:
Yes, that is correct.

[00:19:02] Speaker 01:
So you can't have a jurisdictional hearing?

[00:19:04] Speaker 03:
Not for whistleblower cases.

[00:19:05] Speaker 03:
The only way to get to jurisdiction is to make the non-frivolous allegation.

[00:19:09] Speaker 03:
There is no separate fact-finding hearing to see whether or not the allegation is non-frivolous.

[00:19:14] Speaker 01:
So what does that mean?

[00:19:15] Speaker 01:
If I think this is a non-frivolous allegation, what has to happen now?

[00:19:20] Speaker 03:
And if he made an unfiltered allegation that that was a protected disclosure and made an unfiltered allegation that there was a contributing factor, which was not reached here, there would be hearing on the merits as to whether or not whistleblower reprisal occurred.

[00:19:31] Speaker 01:
Does the MSPB have anything like, you know, expedited summary judgment?

[00:19:35] Speaker 01:
I mean, because here's the thing, if it turns out that this Colonel Tate is in fact a nurse, that puts an end to his claim that she was unqualified and that it was therefore either an abuse of power or a risk of health or human, whatever.

[00:19:46] Speaker 01:
So is there some way that the government is able to shortcut this process if someone makes what are truly frivolous allegations, but only on the basis of looking at the evidence?

[00:19:57] Speaker 03:
Well, that's why the non-frivolous allegation, and I see my time's expired.

[00:19:59] Speaker 03:
Please, yes.

[00:20:00] Speaker 03:
The non-frivolous allegation stage requires a little bit more than just a bare conclusory allegation from the appellant.

[00:20:07] Speaker 01:
It requires some level of... But what if he said, she is a midwife, she is not a nurse, she has no other medical training, she has only ever treated women,

[00:20:16] Speaker 01:
And if all of that is untrue, it turns out, what is the government's ability to put a stop to a case where the arguments as made are not frivolous, but they're actually completely untrue and thus are frivolous?

[00:20:30] Speaker 03:
The government would have to rebut those allegations at a hearing if jurisdiction is established based on that allegation.

[00:20:35] Speaker 01:
I see.

[00:20:36] Speaker 03:
If this court has no other questions.

[00:20:37] Speaker 01:
Yep.

[00:20:53] Speaker 01:
I understand why you're doing it, but we hate when you guys split this time.

[00:20:56] Speaker 01:
So please don't have the same discussion that we just did.

[00:21:01] Speaker 01:
If there's more you need to add or something you really want to add to what he said, go for it.

[00:21:04] Speaker 01:
But the redundancy is not necessary.

[00:21:08] Speaker 00:
Thank you, Your Honor.

[00:21:09] Speaker 00:
To meet his burden and establish the board's jurisdiction below, Dr. Hanson had to make nonconclusory, facially plausible, and detailed allegations a fact that could convince a disinterested observer

[00:21:22] Speaker 00:
that the agency had engaged in gross mismanagement or abuse of authority.

[00:21:25] Speaker 00:
Despite multiple opportunities to meet that burden and with the assistance of counsel, Dr. Hanson rested on his opinions and his conclusions that the agency had engaged in mismanagement, gross mismanagement, and abuse of authority.

[00:21:37] Speaker 00:
And he omitted all of the essential facts that could let a disinterested observer agree with those opinions and those conclusions.

[00:21:44] Speaker 05:
When an employee files an IRA appeal

[00:21:51] Speaker 05:
and does all this stuff about protected disclosures and makes his allegations.

[00:21:56] Speaker 05:
Is the agency allowed to respond to arguments about why they aren't protected?

[00:22:01] Speaker 00:
Yes, Your Honor.

[00:22:02] Speaker 00:
And the Army, in this case, did file multiple reports.

[00:22:03] Speaker 05:
Are they allowed to submit evidence?

[00:22:06] Speaker 00:
Not as they pertain to the mayor.

[00:22:07] Speaker 05:
It's based just on his allegations.

[00:22:09] Speaker 05:
Correct.

[00:22:10] Speaker 00:
And if there is a contradiction of fact, the AG is supposed to give the benefit to the employee and not to the agency.

[00:22:17] Speaker 02:
Would you allow me to point out

[00:22:19] Speaker 02:
inconsistencies and lack of evidence in the allegations?

[00:22:24] Speaker 00:
Yes, and the army here did make arguments about the paucity and the porousness of Dr. Hanz's allegations.

[00:22:30] Speaker 01:
With respect to disclosure four in particular... Did you argue that they were false?

[00:22:35] Speaker 00:
No, they did not concern the merits of the allegations themselves, just concerned the sufficiency of the allegations.

[00:22:41] Speaker 00:
With respect to disclosure four,

[00:22:43] Speaker 00:
Dr. Hansen is arguing that Colonel Tate abused her authority and putting herself in the position that she was in to go with him on this visit to treat the president of Afghanistan.

[00:22:53] Speaker 00:
To establish an abuse of authority, Dr. Hansen had to show that the decision to put herself in that position was arbitrary or capricious at the first level.

[00:23:01] Speaker 00:
Dr. Hansen did not provide enough facts or details concerning the decision and why it was arbitrary or capricious to permit him to get past the second part, which he was very focused on,

[00:23:12] Speaker 00:
whether that was a personal gain doctor to Colonel Tate.

[00:23:16] Speaker 00:
The things that would have been helpful if he had provided were the reason for the visit.

[00:23:21] Speaker 00:
What treatment did the president of Afghanistan need?

[00:23:24] Speaker 00:
Who else was going to be there?

[00:23:26] Speaker 05:
Apart from whether she's a nurse midwife or a nurse, does the record show what her position is in Afghanistan?

[00:23:34] Speaker 05:
What was her?

[00:23:35] Speaker 00:
What was her role there?

[00:23:37] Speaker 00:
She was the first-level commander in charge of the Combined Joint Medical Unit that Dr. Hanson was helping.

[00:23:43] Speaker 00:
They are in theater.

[00:23:44] Speaker 00:
He is a civilian employee on an expeditionary mission supporting an Army unit, which in turn is supporting a very large NATO operation to advise and help the government of Afghanistan.

[00:23:55] Speaker 00:
The big part of what he was there to do was to give advice and help them professionalize their national medical system.

[00:24:00] Speaker 00:
And sometimes he provided direct medical care.

[00:24:02] Speaker 02:
Is there some sort of

[00:24:05] Speaker 02:
table of organization within the record?

[00:24:08] Speaker 00:
There is not, Your Honor.

[00:24:12] Speaker 00:
Dr. Hanson, in order for her decision to put herself in that position, for her decision to be arbitrary or capricious, there would have to be no rational basis for her to do that other than, as Dr. Hanson alleges, to satisfy her own interests in getting a photo opportunity.

[00:24:26] Speaker 00:
She is his first-level military commander.

[00:24:28] Speaker 00:
The allegation is that he is going to provide direct medical care to the president of a foreign country.

[00:24:34] Speaker 00:
Colonel Tate decided to put herself in the position of going with him and displacing a physician's assistant for what purpose, it's not clear from the record, but the implication is that she was going to be providing medical care along with Dr. Hanson, but there are no facts to support that.

[00:24:49] Speaker 01:
Well, the facts that he alleged are that she touched and rendered unsterile sterile equipment.

[00:24:54] Speaker 01:
So was that by accident?

[00:24:55] Speaker 01:
Did she trip and fall into the equipment?

[00:24:57] Speaker 01:
I mean, she was touching, at least as alleged, she was touching medical equipment within the treatment room.

[00:25:03] Speaker 00:
Two things about that allegation, Your Honor.

[00:25:05] Speaker 00:
The first is that allegation appears in an unsworn statement provided to the administrative judge below.

[00:25:11] Speaker 00:
By regulation, the allegations that can support a non-firmless allegation have to be sworn or under penalty of perjury.

[00:25:16] Speaker 00:
That particular allegation was not.

[00:25:18] Speaker 00:
The sworn allegations in the response to the October 27 jurisdictional order are sworn, and that detail is not in there.

[00:25:23] Speaker 01:
Did you make that argument in your brief?

[00:25:25] Speaker 01:
I don't recall it.

[00:25:26] Speaker 01:
Because he makes the argument in his blue brief that she touched sterile equipment and thereby rendered

[00:25:31] Speaker 01:
you know, the equipment unusable during the medical treatment.

[00:25:33] Speaker 01:
I don't recall you saying that this statement was in an unsworn capacity and thus can't be used in your responsive pleading.

[00:25:42] Speaker 01:
We're briefed to us.

[00:25:43] Speaker 00:
That is not in our brief, nevertheless.

[00:25:46] Speaker 01:
You don't think that could be waived by you?

[00:25:48] Speaker 00:
It could be waived.

[00:25:49] Speaker 00:
But if the court is applying a de novo standard, the regulation does control whether the allegations are non-frivolous.

[00:25:55] Speaker 05:
Did he argue this as a substantial danger to public health and safety or

[00:26:00] Speaker 05:
a abuse of discretion authority case.

[00:26:04] Speaker 00:
It seems from pages 10 and 18 of the petitioner's brief that he's not relying on a substantial and specific danger standard.

[00:26:09] Speaker 00:
If he had, there would be citations to the case law concerning what would be necessary to make out that prolonged 2302b8 that's not in the petitioner's brief or in his reply.

[00:26:18] Speaker 00:
But with respect to abuse of discretion, pardon me.

[00:26:22] Speaker 05:
I struggle with this.

[00:26:24] Speaker 05:
Is there anything very specific in the record about

[00:26:28] Speaker 05:
his disclosures to OSC.

[00:26:30] Speaker 05:
I found like an email or something like that.

[00:26:32] Speaker 05:
Is there any more detail about he wrote a letter to the special counsel saying, I've made these disclosures and I've been retaliated against in X way?

[00:26:41] Speaker 00:
There are multiple iterations of, I think, a web form that he filled out that went to the disclosures unit.

[00:26:45] Speaker 00:
Then when OSC reached out to him for follow up, he submitted some additional information with the assistance of counsel, which provided some additional allegations.

[00:26:52] Speaker 00:
Where is that in the record?

[00:26:54] Speaker 00:
That would be on pages

[00:26:57] Speaker 00:
Appendix, round page appendix 45 and 46 are his counseled answers and follow-up to the OSC's questions.

[00:27:07] Speaker 00:
And that precedes his appeal form to the MSPB.

[00:27:10] Speaker 05:
OK, this is not to the MSPB.

[00:27:11] Speaker 05:
This is?

[00:27:13] Speaker 05:
Correct.

[00:27:15] Speaker 05:
OK.

[00:27:15] Speaker 00:
Thank you.

[00:27:16] Speaker 00:
With respect to abuse of authority, the focus on whether the decision was arbitrary or capricious has to be measured at the time the decision is made and not based on the consequences after the decision is made.

[00:27:27] Speaker 00:
sworn or unsworn that Colonel Tate contaminated the sterile field when she was present doesn't entirely bear or resolve the question of whether her decision to be present in the first instance was arbitrary or capricious.

[00:27:38] Speaker 00:
The focus on the decision should be based on when the decision was made and not what happened afterward.

[00:27:45] Speaker 05:
That's assuming we don't understand his allegation as a disclosure of she created a risk to public health or safety by contaminating

[00:27:56] Speaker 00:
examining our own.

[00:27:57] Speaker 00:
Correct, Your Honor.

[00:27:58] Speaker 00:
And I see that I'm past my time.

[00:28:00] Speaker 00:
But if I may finish, my answer to your question.

[00:28:02] Speaker 00:
Even if we were looking at a substantial or specific danger to public health or safety, we would still probably want additional detail about why they were present, who else was present, and what else those other people were doing.

[00:28:12] Speaker 00:
For the reasons previously stated, we ask that the court affirm the decision below.

[00:28:17] Speaker 00:
Thank you.

[00:28:21] Speaker 04:
Judge Hughes, you asked the question, is there a specific example of how Disclosure 1 would impact the ability to provide medical care in that theater?

[00:28:30] Speaker 04:
Disclosure 4 is that specific example for you.

[00:28:33] Speaker 04:
In Disclosure 4, he specifically identifies the danger.

[00:28:36] Speaker 05:
Well, you can't bootstrap what you disclosed in 4 to make Disclosure 1 a non-frillless allegation.

[00:28:41] Speaker 05:
I understand.

[00:28:42] Speaker 04:
The key here is only one of these disclosures needs to be established to establish the board's jurisdiction here.

[00:28:48] Speaker 04:
And Disclosure 4 was sufficient as an abuse authority.

[00:28:51] Speaker 04:
Disclosure five, the administrative judge completely ignored.

[00:28:54] Speaker 05:
Let me ask this.

[00:28:57] Speaker 05:
Did you plead disclosure four only as an abuse of authority or did you ever argue that it also demonstrated a specific danger to public health and safety or whatever that language is?

[00:29:09] Speaker 04:
It was only pledged as an abuse of authority.

[00:29:11] Speaker 04:
But with regards to your argument about bootstrapping the two together, with Disclosure 5, we make the argument that by fragmenting all these issues out, you actually ignore the gross impact that this is having, the aggregate effect.

[00:29:25] Speaker 04:
Dr. Hanson disclosed each one of one through four individually, and then disclosure five, he made first to Colonel Franks, who was the chief of staff at the time in the theater, and then again to Colonel Whittle, who was the incoming chief of staff.

[00:29:38] Speaker 04:
There was a changing of the guard at that point in time.

[00:29:41] Speaker 04:
And the administrative judge completely refused to analyze that altogether.

[00:29:45] Speaker 04:
So any one of those could be sufficient for establishing the board's jurisdiction.

[00:29:50] Speaker 04:
And Judge Moore, you asked the question about could the MSP be

[00:29:53] Speaker 04:
ask or request for a jurisdictional hearing.

[00:29:57] Speaker 04:
I've been in more jurisdictional hearings at the MSPB than I can remember.

[00:30:00] Speaker 04:
We do them in IRA appeals, we do them in USERA appeals, we do them rarely in Chapter 75 to Chapter 43, because that's a little bit more straightforward, but sometimes with probationary employees, things of that nature.

[00:30:10] Speaker 05:
Wait, you think the MSPB has evidentiary hearings for established jurisdiction in WPA cases?

[00:30:17] Speaker 04:
Yes, I've been in jurisdictional hearings with, I'm trying to remember a specific case on a whistleblower case.

[00:30:23] Speaker 04:
But I'm pretty certain I had one many years ago with an Bureau of Indian Affairs case where there was a very similar issue.

[00:30:29] Speaker 05:
Is it after this court established that the only burden you needed to meet to establish jurisdiction was non-frivolous allegations?

[00:30:38] Speaker 05:
Because that's what our case law says.

[00:30:40] Speaker 04:
That is what the case law says.

[00:30:42] Speaker 04:
And it was, I'm not aware of the specifics, but I would guess it was within the last five years, the non-frivolous allegations go back at least to 2011, 2008 or earlier.

[00:30:52] Speaker 05:
So you think, even if you've established non-privilege allegations, that the agency can come in and say, we want summary judgment on jurisdiction because they're prohibited.

[00:31:08] Speaker 05:
Their facts are wrong.

[00:31:13] Speaker 04:
Can the agency request that?

[00:31:15] Speaker 04:
The MSPP, the only summary judgment

[00:31:18] Speaker 04:
power, I guess, if you will, that an administrative judge has is at the jurisdictional level.

[00:31:23] Speaker 04:
And many times, if there's an issue of jurisdiction, whether it's credibility, things of that nature that are left unresolved, an administrative judge can order the hearing.

[00:31:31] Speaker 05:
The MSPB judge... Sure, but in whistleblower appeals, that's a hearing on whether there are non-frivolous allegations, not whether the agency has rebutted those non-frivolous allegations to disprove jurisdiction.

[00:31:46] Speaker 04:
Well, as this Court has repeatedly held, that if there is any question as to whether or not there is jurisdiction or not, that doubt should be resolved in favor of the appellant at that point.

[00:31:56] Speaker 05:
Yeah, but you're saying that the agency can, at a jurisdictional hearing, rebut an allegation of non-frivolous jurisdiction.

[00:32:05] Speaker 05:
I don't think that's true.

[00:32:06] Speaker 04:
I would say that they could rebut the non-frivolous allegation.

[00:32:10] Speaker 04:
But if there was some sort of factual dispute that made the allegation completely untrue,

[00:32:16] Speaker 04:
I could see that being a grounds for doing a hearing at that point in time, as Judge Moore stated before.

[00:32:21] Speaker 04:
What kind of hearing?

[00:32:24] Speaker 05:
Once you establish non-frillist allegations in a whistleblower case, you go to the merits.

[00:32:29] Speaker 05:
So sure, they could, as part of their merits argument, put on evidence showing that this woman was a nurse, not just a midwife, and therefore proved that it actually wasn't a disclosure on the merits.

[00:32:44] Speaker 05:
But there's no summary adjudication procedure to do that, is there?

[00:32:47] Speaker 04:
No, there's not a summary adjudication other than if the board finds there's not jurisdiction.

[00:32:52] Speaker 04:
And if the administrative judge decides that a jurisdictional hearing is required to establish that, that is something that within the administrative judge's power.

[00:33:01] Speaker 04:
I would point out that what you're describing, the White versus Air Force case that the intervener cites in their brief, is exactly that example.

[00:33:09] Speaker 04:
There was a question as to whether or not the QES program was gross mismanagement.

[00:33:16] Speaker 04:
That case was decided after initial decision, after hearing.

[00:33:19] Speaker 04:
The merits as to whether or not it was gross mismanagement resulted against the appellant, but it survived jurisdiction.

[00:33:26] Speaker 04:
That's our argument as to why this case should go forward to a hearing.

[00:33:29] Speaker 04:
I see them out of time.

[00:33:31] Speaker 01:
Is it your view that if it does go forward to a hearing on the merits, suppose that I only think allegation four is non-frivolous and I think the rest of them are frivolous.

[00:33:39] Speaker 01:
Is it your view that if it goes forward to a hearing on the merits, it opens up the ability on the merits to address anything at all the whistleblower thinks amounts to a protected disclosure?

[00:33:48] Speaker 01:
Or is it your view that the merits hearing would be limited to the thing that we said was non-frivolous?

[00:33:54] Speaker 04:
It would be limited to that disclosure, I think, at that point in time that was found to grant jurisdiction on the board, at which point in time you then go to the contributing factor.

[00:34:03] Speaker 01:
OK, thank you.

[00:34:04] Speaker 04:
Thank you, Your Honors.

[00:34:05] Speaker 01:
I thank all counsel for their argument.

[00:34:07] Speaker 01:
It was actually very helpful.