[00:00:06] Speaker 03: The next case for argument is 17-2538, Kerr versus MSP. [00:00:56] Speaker 03: Ms. [00:00:56] Speaker 03: Ayers? [00:00:57] Speaker 04: Yes, Your Honor. [00:00:58] Speaker 03: Good morning. [00:00:58] Speaker 03: We're ready whenever you are. [00:01:00] Speaker 04: May I please report, my name is Stephanie Ayers, I'm counsel for Appellant Care. [00:01:05] Speaker 04: The MSPB suggests that this court, tell a litigant who has spent the last 10 years in US federal courts trying to have her protected disclosures about the dangerous alcoholic culture of a federal wildlife refuge heard that she has no remedy for retaliation for making these disclosures. [00:01:23] Speaker 04: because she chose to entrust these important claims to a US district court. [00:01:29] Speaker 04: There's no small thing in our last oral argument before the Ninth Circuit that the judge sitting there, Sue Esponte, suggested that this is a case that meets the requirements of equitable tolling. [00:01:41] Speaker 03: Well, let's leave equitable tolling aside for a minute because that tends to be a controversial issue depending on the context at which it arises. [00:01:48] Speaker 03: So if we are sympathetic to what you were saying, [00:01:51] Speaker 03: What's the alternative to an analysis under equitable holding? [00:01:55] Speaker 03: Is there just an abuse of discretion by the board not saying that she showed adequate cause for the delay? [00:02:02] Speaker 04: Correct. [00:02:03] Speaker 04: You could simply choose to go under the good cause for the delay standard, which the MSP is to be looking at particular circumstances of the case below. [00:02:12] Speaker 03: So give us a couple of those most egregious errors. [00:02:15] Speaker 04: OK. [00:02:15] Speaker 04: The MSPB judge ignored that the jurisdiction over these mixed cases has been in a state of confusion at all times during the proceedings. [00:02:24] Speaker 04: The state of confusion would be relevant to the appellant's mind. [00:02:26] Speaker 03: Is there still a state of confusion in your view or is it sorted out since then? [00:02:30] Speaker 04: I believe there's still a state of confusion while the Supreme Court in [00:02:33] Speaker 04: Perry has recognized that there's still the state of confusion in 2017. [00:02:37] Speaker 04: There's still a conflict in the circus. [00:02:40] Speaker 04: The Ninth Circuit says the district court doesn't have jurisdiction over... As to whether you have to exhaust a WPA plan. [00:02:48] Speaker 04: Yes. [00:02:49] Speaker 00: So your theory is that she had a reasonable basis for filing in the district court as opposed to going to the MSPB. [00:03:00] Speaker 00: and that under those circumstances, there's a good cause for the delay. [00:03:03] Speaker 00: That's basically it, right? [00:03:05] Speaker 04: Yes, Your Honor. [00:03:06] Speaker 04: And that she was... And the Ninth Circuit agreed with us that the appellant had a reasonable basis to rely on the Tenth Circuit decision. [00:03:14] Speaker 02: Well, in fact, the Tenth Circuit decision is right on point because it also involved WPA in combination with discrimination claims, whereas Sloan, the Ninth Circuit involved civil service procedural violations and discrimination [00:03:28] Speaker 02: Now, while I understand the Ninth Circuit decided to follow Sloan in your case, you had a regional circuit case directly on all fours with yours in favor of you. [00:03:38] Speaker 02: You had the Ninth Circuit case, which was different factually, but maybe spelled potential doom for your client, but it didn't seem to me the Ninth Circuit case foreclosed it under the circumstances. [00:03:50] Speaker 02: I don't think their decision to follow it incurs unreasonable, but I'm struggling with [00:03:57] Speaker 02: how you did anything wrong by believing that given the fact of the 10th Circuit decision and the Sloan case being different on the facts, that you couldn't still pursue this avenue direct through the 9th Circuit. [00:04:10] Speaker 02: That's a friendly question, by the way. [00:04:13] Speaker 04: I appreciate that. [00:04:14] Speaker 04: Thank you. [00:04:14] Speaker 04: And I would also volunteer that in the Sloan matter, the 9th Circuit did not say, though they've extended it now, they did not say at the time that you had to [00:04:28] Speaker 04: that you could not go to the district court. [00:04:31] Speaker 04: It just said you couldn't take your claims to the EEO. [00:04:34] Speaker 04: So it was the MSPB decision below where she added in the language, and the appellant should have known they couldn't take these or to the district court. [00:04:41] Speaker 00: Sloan is the dictum and Sloan is almost clearly wrong, right? [00:04:45] Speaker 00: Because Kerr says we're going to require exhaustion in this special area of WPA claims. [00:04:52] Speaker 00: There's no suggestion in Kerr that other claims coupled with a discrimination claim wouldn't go to the district court. [00:04:58] Speaker 00: which was the suggestion in Sloan. [00:05:00] Speaker 00: It's almost as though Kerr itself doesn't agree with the Baroque dictum in Sloan. [00:05:07] Speaker 04: It's definitely still a morass, I think. [00:05:10] Speaker 02: Yeah, but we couldn't. [00:05:12] Speaker 02: Could we? [00:05:13] Speaker 02: You tell me. [00:05:13] Speaker 02: Are we allowed, in this case, to hold that the Ninth Circuit got it wrong in Kerr? [00:05:17] Speaker 02: Well, then what would happen to poor Miss Kerr? [00:05:22] Speaker 02: We'd be sending her back to the Ninth Circuit after the Ninth Circuit held no. [00:05:25] Speaker 02: I mean, what would, I don't know, what would happen under those circumstances? [00:05:27] Speaker 04: Well, I think you do have the option to say that there was good cause to delay her filing and that the MSPB should process her claim. [00:05:36] Speaker 04: But I don't think you have the authority to tell the Ninth Circuit. [00:05:38] Speaker 00: The discrimination claims are gone now anyway, so we have jurisdiction. [00:05:42] Speaker 04: That's true. [00:05:43] Speaker 02: I have another problem with the good cause for delay. [00:05:48] Speaker 02: The MSPBAJ cites the eight and a half years of delay and talks about how significant it is. [00:05:54] Speaker 02: But what she overlooks, she or he, is it she or he? [00:05:58] Speaker 02: What she overlooks is that for over five of those years, the government agreed that jurisdiction was proper, allowed this case to go through multiple phases, allowed it to be decided by the district court, allowed it to go to the regional circuit. [00:06:09] Speaker 02: All those decisions were favorable to Ms. [00:06:11] Speaker 02: Kerr. [00:06:12] Speaker 02: And then when it goes back to the district court for the first time five years into [00:06:16] Speaker 02: the decision after everybody spent a lot of time and money, including the court, working through these issues, the government says, ah, yes, we've now realized that you don't have jurisdiction. [00:06:24] Speaker 02: Now, of course, people can realize, wait, you don't have jurisdiction. [00:06:27] Speaker 02: And I get that. [00:06:28] Speaker 02: But I don't see how the eight and a half years under those circumstances should count against Ms. [00:06:33] Speaker 02: Kerr. [00:06:34] Speaker 04: Yeah, that was our take on it as well, is that she, that she, her conduct could not, she could not be the only one responsible for the delay when in fact we had two separate nine circuit appeals and you know. [00:06:46] Speaker 02: Well and obviously the government believed jurisdiction was proper too, because if the government stands up and says no we never did, [00:06:52] Speaker 02: He or she is really going to be in a lot of trouble, right? [00:06:55] Speaker 02: Because why didn't they bring it up for five years? [00:06:57] Speaker 04: And Ms. [00:06:57] Speaker 04: Carr is definitely not on notice that there's any problem because the Ninth Circuit exercised jurisdiction over her WPA claims and said, in fact, she had made protective disclosures under the WPA, remanded it back to the district court for us to have a trial on both, both her discrimination and her WPA claims. [00:07:11] Speaker 02: So do you think we missed anything, or do you want to give the other guys a shot? [00:07:16] Speaker 04: I'm a little concerned as well with the equitable tolling issue, because the MSPB, without citing any case law, any legal precedent, said, I'm not going to extend equitable tolling to an adverse action. [00:07:29] Speaker 02: No, see, my problem with your equitable tolling argument is that the statute affords for an express exclusion from timeliness for good cause. [00:07:37] Speaker 02: It's hard for me to imagine that the court should have the option of double downing. [00:07:43] Speaker 02: doubling down with yet another exclusion for equitable reason. [00:07:48] Speaker 02: So that's where I am on equity. [00:07:50] Speaker 00: The government agrees that the cause exception is broader than equitable telling anyway. [00:07:56] Speaker 02: So if you win in a good cause, you don't need to worry about it. [00:08:00] Speaker 03: Why don't we hear from the government? [00:08:02] Speaker 03: I'll reserve the time for your battle if you need to. [00:08:10] Speaker 01: There's actually two reasons why this court should affirm the MSPB. [00:08:17] Speaker 01: The first reason is under this court's precedent, once an election is made, there's no circling back to the MSPB. [00:08:25] Speaker 01: So presented with an election between district court and the MSPB, the petitioner chose district court and was limited to the remedies available in district court, whatever they may be. [00:08:35] Speaker 01: This court doesn't need to weigh in. [00:08:37] Speaker 01: on the circuits plate between the Ninth Circuit and the Tenth Circuit. [00:08:40] Speaker 01: Whatever the remedies were, those were available to her in the district court, and that's where she went. [00:08:46] Speaker 00: She didn't change anything. [00:08:46] Speaker 00: Kennedy What would you have had her do? [00:08:48] Speaker 00: Because it seems pretty clear to me that at the time she filed in the district court, you had this Tenth Circuit decision and you have the language of the statute which seems to say that all the issues go to the district court. [00:09:03] Speaker 00: How is she supposed to do this? [00:09:05] Speaker 00: There's a lack of clarity as to where she's supposed to go. [00:09:08] Speaker 00: She chose one place and made a reasonable decision about that. [00:09:12] Speaker 00: And how was she supposed to solve this problem? [00:09:15] Speaker 00: Go to both places at once? [00:09:17] Speaker 01: No, absolutely not. [00:09:18] Speaker 01: Congress gave a choice. [00:09:20] Speaker 01: Several places in the procedures, Congress has given complainants the choice, the election to make. [00:09:27] Speaker 00: Well, what if she made a, okay, so she made a choice. [00:09:30] Speaker 00: What if it was a reasonable choice? [00:09:33] Speaker 00: And it turned out that the Ninth Circuit didn't agree, though other circuits might have come out differently. [00:09:38] Speaker 00: Does that not provide a basis for good cause? [00:09:41] Speaker 01: Well, that's my point. [00:09:43] Speaker 01: There's actually two reasons here why the court should affirm. [00:09:45] Speaker 01: The first one is, once this election in the district court was made, the MSPB was deprived of jurisdiction under the law of this circuit. [00:09:52] Speaker 01: So what? [00:09:54] Speaker 01: That means that she could not come back to the MSPB. [00:09:56] Speaker 01: Well, so what? [00:09:57] Speaker 00: I mean, you know, she made it. [00:10:00] Speaker 00: How can it not be good cause to make a reasonable choice to go to the district court? [00:10:05] Speaker 01: So these are two separate reasons. [00:10:07] Speaker 01: One is MSPB jurisdiction. [00:10:09] Speaker 01: One is timeliness. [00:10:10] Speaker 01: If the MSPB doesn't have jurisdiction, there's no timeliness question. [00:10:14] Speaker 01: So if she elects district court, and that's her election, and it's binding, and she can't come back, the MSPB, because under this court's case law, she can't come back under Conner. [00:10:24] Speaker 01: In fact, in Conner, this court was presented with [00:10:29] Speaker 01: an MSPB decision dismissing is untimely. [00:10:32] Speaker 01: The court said, that's wrong. [00:10:34] Speaker 01: MSPB is wrong. [00:10:35] Speaker 01: This should not have been dismissed as untimely. [00:10:37] Speaker 01: It should have been dismissed because the MSPB was deprived of jurisdiction when the petitioner elected to go to district court. [00:10:46] Speaker 01: And with that election of district court, not just an election of a form, it's an election of remedies. [00:10:51] Speaker 01: So whatever remedies are available in district court, that is what was chosen. [00:10:56] Speaker 01: Now, if there's some exception to Conner, and I found none, then yes, I believe that MSPB should be affirmed. [00:11:04] Speaker 03: I don't understand. [00:11:07] Speaker 03: She didn't knowingly. [00:11:08] Speaker 03: An election seems to presume that people know what their rights are if they make certain decisions. [00:11:16] Speaker 03: And you would agree, would you not, that there was at a minimum ambiguity as to whether or not she would lose her WPA claim if she chose the district court route. [00:11:26] Speaker 01: Well, yes and no. [00:11:28] Speaker 01: She was given a notice for choices between MSPB and district court. [00:11:33] Speaker 00: And if she guessed wrong, you say she's had a lot. [00:11:36] Speaker 01: Well, I mean, that seems to always be the case that, especially, she was fortunate enough to have counsel at the time, she was a counsel throughout, that, you know, she had to have to examine what claims she could not take to the MSPB, what claims she could not take to district court. [00:11:50] Speaker 01: There were claims she could not take to the MSPB, so she chose to go to district court. [00:11:54] Speaker 03: So you lose your WPA claims if you choose to pursue your EEO claims in district court under the statute? [00:12:01] Speaker 01: Yes, because she is, by going to district court, she is challenging the discrimination decision that she was given by the agency, by going through the agency EEO process. [00:12:11] Speaker 01: If she wanted to challenge her civil service claims, her non-discrimination claims, including her whistleblower claim. [00:12:17] Speaker 01: Then she should have chosen the MSPB, and once she received a final decision from the MSPB on both the discrimination and non-discrimination claims, then she could have gone to district court. [00:12:27] Speaker 02: So are you saying she couldn't have presented her claims to the MSPB, but she could have gone to the Office of Special Counsel for the whistleblower claims, right? [00:12:35] Speaker 02: You say it expressly in your brief that, so I'm not making it up. [00:12:38] Speaker 01: This is your claim. [00:12:39] Speaker 01: No, I would say this. [00:12:40] Speaker 01: It's possible that the MSPB... That's not what you said in your brief. [00:12:43] Speaker 02: On page 24, let's look at your brief. [00:12:44] Speaker 02: Right. [00:12:44] Speaker 02: On your brief on page 24, [00:12:46] Speaker 02: You say she couldn't have gone to the MSPB. [00:12:49] Speaker 02: Ms. [00:12:49] Speaker 02: Kerr could still present her whistleblower claim to the Office of Special Counsel under 5 USC 1214, and if it remained unresolved after doing so, could file an IRA appeal with the MSPB. [00:13:01] Speaker 02: Now you're trying to back away from that statement. [00:13:03] Speaker 01: No. [00:13:04] Speaker 01: It's possible she could go to the OSD and ask them to investigate. [00:13:06] Speaker 01: I'm not saying that it's likely that she would have success there. [00:13:09] Speaker 01: I'm not saying it's likely she would have success at the board. [00:13:12] Speaker 01: But full disclosure, the OSD exists. [00:13:14] Speaker 01: She hasn't been there. [00:13:16] Speaker 03: she could try. [00:13:17] Speaker 03: Wait, are you saying that because that's a prerequisite to the MSPB doing it, or are you saying because, I don't understand. [00:13:24] Speaker 03: In some cases, you know, are you saying that she needed, the reason the MSPB couldn't assert jurisdiction was because she needed to have proceeded that by going to the office of spending? [00:13:34] Speaker 01: No, that's not what I'm saying. [00:13:36] Speaker 00: Okay, so what you're saying is that she had to [00:13:39] Speaker 00: bring all her claims, discrimination, and non-discrimination claims to the MSPB because the district court did not have jurisdiction over her non-discrimination claims? [00:13:48] Speaker 01: If she wanted all of them heard in one forum, that's what she needed to do. [00:13:52] Speaker 03: Well, what if she's okay in hearing them in two forums? [00:13:56] Speaker 01: Well, these claims cannot be bifurcated, so that's not an option. [00:14:00] Speaker 01: She can't go to district court in the MSPB. [00:14:02] Speaker 00: So your theory is that even though Congress explicitly [00:14:06] Speaker 00: said that district courts have jurisdiction over mixed cases. [00:14:10] Speaker 00: Congress really didn't understand. [00:14:11] Speaker 00: In fact, she had to go to the MSPB if she wanted all her claims to be decided. [00:14:16] Speaker 01: It's not my theory, Your Honor. [00:14:18] Speaker 01: It's both the statute and this case. [00:14:21] Speaker 00: The statute doesn't say that. [00:14:23] Speaker 00: The statute says if there's a decision, she can take it to all issues to the district court. [00:14:30] Speaker 00: And to the extent that Kerr said otherwise is probably wrong, but we don't have, that's not for us to decide. [00:14:36] Speaker 00: But you can't be saying that she has to go to the MSPB because she's got a mixed case. [00:14:42] Speaker 00: Congress said you can take mixed cases to the district court. [00:14:45] Speaker 01: Well, what Connor says is she had a choice. [00:14:48] Speaker 01: She could choose district court or the MSPB, not vote. [00:14:50] Speaker 01: Well, you're saying she didn't have a choice. [00:14:52] Speaker 00: She had to go to the MSPB. [00:14:54] Speaker 00: She did. [00:14:54] Speaker 03: She had a choice, and she chose district court. [00:14:57] Speaker 03: So if you chose just choose district court with respect to the Yale complaints, you're forfeiting your right to deal with the WPA claim. [00:15:04] Speaker 01: In the Ninth Circuit, under [00:15:06] Speaker 02: And if you choose MSPB, you're forfeiting your right to deal with the discrimination claims. [00:15:11] Speaker 01: Certain discrimination claims that are related to the adverse action can be brought, but not the ones that are not related. [00:15:17] Speaker 02: In this case. [00:15:18] Speaker 01: Right. [00:15:18] Speaker 02: So damned if she does, damned if she doesn't. [00:15:21] Speaker 01: Well, what I was saying before, just to be very clear, that there's these discrimination claims not related to the adverse action that were raised by the petitioner. [00:15:29] Speaker 01: Basically, she checked all the boxes. [00:15:32] Speaker 01: Those claims would not have been decided by the MSPB. [00:15:35] Speaker 01: But she did exhaust those claims administratively before her own agency, in her own agency's EEO process. [00:15:41] Speaker 01: So once she got to district court after going the MSPB route, yes, then she could raise everything. [00:15:47] Speaker 01: That's all I'm saying. [00:15:48] Speaker 01: I'm not saying she had to go to the MSPB. [00:15:49] Speaker 01: It was her choice. [00:15:50] Speaker 01: Congress gave her that choice. [00:15:52] Speaker 03: Well, I don't understand. [00:15:53] Speaker 03: So you say she could have done this by going first to the MSPB for what purpose? [00:15:58] Speaker 03: To adjudicate the WPA claim, and then she moves over to district court to do her EEO complaint? [00:16:04] Speaker 03: I'm really not understanding. [00:16:06] Speaker 01: OK. [00:16:07] Speaker 01: So here's the choice. [00:16:09] Speaker 01: What makes mixed case law complicated is Congress gave complaints to elections at various points. [00:16:16] Speaker 01: The first election was, is she going to go to her agency's EEO process, or is she going to go directly to the MSPB? [00:16:22] Speaker 01: But the next election was, she went to the agency, eventually got a final agency decision. [00:16:26] Speaker 01: The next choice is, is she going to go to district court and challenge the agency's final agency decision on discrimination? [00:16:33] Speaker 01: Or will she go to the MSPB? [00:16:35] Speaker 01: And that's a significant choice because the district court and the MSPB do not have matching jurisdiction. [00:16:42] Speaker 01: I think that's clear. [00:16:43] Speaker 01: So she had to make a choice based on what was best for her. [00:16:47] Speaker 01: She chose district court. [00:16:48] Speaker 00: And Congress deliberately said that you can bring all your claims to district court. [00:16:54] Speaker 00: How do you read the language of the statute as depriving [00:16:59] Speaker 00: in her position of the right to go to district court. [00:17:02] Speaker 01: Well, I disagree that Congress said that you can bring a whistleblower protection. [00:17:06] Speaker 00: Well, they didn't say that explicitly, but they just said the decision that she gets from the agency in a mixed case can go to district court. [00:17:14] Speaker 01: The decision she got from the agency said that whistleblower claims are outside the EEO process, and we don't have jurisdiction to address it. [00:17:23] Speaker 01: That's what the final agency decision said. [00:17:25] Speaker 01: And that was the decision she was challenging in district court. [00:17:28] Speaker 01: If she wanted a decision on the whistleblower claim, yes, she'd have to go to the MSPB, because there's no law, no regulation that gives the district court de novo review over whistleblower claims. [00:17:41] Speaker 02: I understand your counterpoint. [00:17:43] Speaker 02: I'd like to move you, if you don't mind, to the good cause. [00:17:47] Speaker 02: Because you could tell we have a lot of problems with that based on the questioning before. [00:17:52] Speaker 02: So would you like to address that? [00:17:55] Speaker 01: OK, so the time witness assumes that you can circle back to the MSPB. [00:18:00] Speaker 02: I just said I understood your point about that. [00:18:02] Speaker 02: Now let's just go to whether there was or was not good cause. [00:18:05] Speaker 01: Given that, that you can circle back to that scenario, [00:18:10] Speaker 01: this court has said, in a case called Pachashua, that it's not good cause that you were pursuing other remedies in another form. [00:18:19] Speaker 01: And here she was given a plain notice of MSPB time limits in the final agency decision. [00:18:27] Speaker 01: And in 2008, she chose to go to district court. [00:18:31] Speaker 01: So that's how long the time has been running. [00:18:35] Speaker 03: Notwithstanding that the government never said anything about that while the district court was proceeding. [00:18:41] Speaker 01: Well, for one thing, it's not for the government to advise her on which forum to go to. [00:18:45] Speaker 01: It was her choice. [00:18:46] Speaker 01: Congress gave her that choice. [00:18:47] Speaker 03: OK, but then, no, but doesn't the government, they were party to the case, right? [00:18:50] Speaker 03: Shouldn't they have said, no, no, no, no, no, we can't be here with respect to the WPA case? [00:18:56] Speaker 01: Both parties are responsible for making sure that the forum they're in has jurisdiction. [00:19:01] Speaker 01: The government did raise it late, but they were entitled to raise it at any time. [00:19:05] Speaker 01: Five years late. [00:19:05] Speaker 02: Yes, five years late. [00:19:07] Speaker 02: And then the five years which contributed as part, so the government was partially responsible for a portion of the eight and a half year delay because they likewise, for five of the eight and a half years, acquiesced in the idea that the federal court system had jurisdiction. [00:19:26] Speaker 01: So even if we discount that, we still have years that are gone by. [00:19:30] Speaker 02: But the AJ didn't. [00:19:31] Speaker 02: She looked at five years, eight and a half years, and made a big deal of how long that was. [00:19:36] Speaker 01: Well, it's still years, no matter how you calculate it. [00:19:40] Speaker 01: It's years from the district court telling this curve that we don't have jurisdiction. [00:19:44] Speaker 02: But doesn't it also go to the reasonableness of her belief that it did have jurisdiction? [00:19:50] Speaker 02: Because even the government acquiesced in jurisdiction in that forum for five years. [00:19:58] Speaker 02: So doesn't that sort of tend to support the idea, her claim, that it was reasonable for her to think that that jurisdiction was proper in that forum? [00:20:07] Speaker 02: The government thought so, too, for five years. [00:20:10] Speaker 02: So doesn't that all kind of weave together? [00:20:12] Speaker 02: And the AJ mentioned none of that. [00:20:15] Speaker 01: Even if we go from the date that the government [00:20:19] Speaker 01: filed its motion to dismiss, or if we ignore that, we go to the date the district court advised that it didn't have jurisdiction, or if we ignore that, we go by the date the Ninth Circuit advised her it didn't have jurisdiction. [00:20:29] Speaker 01: It's still late. [00:20:30] Speaker 02: Yeah, but that's not for good cause. [00:20:33] Speaker 02: You don't want us to be deciding good cause in the first instance, right? [00:20:35] Speaker 03: I mean, you cite the AJ, who talked about not just the delay, but in light of the excessive length of the delay, she has not demonstrated that she acted with due diligence. [00:20:45] Speaker 03: That sounds to me like the [00:20:47] Speaker 03: judge was considering the entire time frame. [00:20:50] Speaker 03: As she should. [00:20:51] Speaker 02: And we can't read, if that wasn't right, if that analysis is patently wrong. [00:20:58] Speaker 02: I just don't feel like I ought to be in the first instance reweighing a question of good cause. [00:21:05] Speaker 01: I mean... Well, I think it's, you know, it's multifactored, and it doesn't just come down to one. [00:21:09] Speaker 01: I know. [00:21:09] Speaker 02: Do you want me to weigh all the multifactors in the first instance? [00:21:12] Speaker 00: Well, put it this way. [00:21:13] Speaker 00: If she was reasonable in filing in the district court both her discrimination claims and the WPA claims, and she was wrong about that, is that not good cause? [00:21:27] Speaker 01: Whenever she learned about it, then if she had come back immediately, it'd be a different case. [00:21:32] Speaker 01: When would it have immediately have been, once the government mentioned it? [00:21:36] Speaker 01: When she learned about it, which we could go from the motion. [00:21:38] Speaker 02: No, wouldn't it be after the Ninth Circuit's ruling? [00:21:40] Speaker 01: We could go from the motion to dismiss by the government, if that's considered definitive, or if it's not definitive because she challenged it, then the district court's ruling. [00:21:49] Speaker 02: No, well, what about the Ninth Circuit? [00:21:51] Speaker 01: We're the Ninth Circuit's ruling. [00:21:53] Speaker 00: How long was it between the Ninth Circuit's ruling and her filing? [00:21:57] Speaker 00: at the MSPB. [00:22:04] Speaker 01: The Ninth Circuit decision was September 6, [00:22:08] Speaker 01: 2016, she appealed to the MSPB April 11, 2017. [00:22:18] Speaker 00: Did she file for cert? [00:22:20] Speaker 01: She did. [00:22:21] Speaker 00: So about six or seven. [00:22:23] Speaker 00: What was the amount of time between the denial of cert and the filing? [00:22:27] Speaker 01: Cert was denied March 20. [00:22:28] Speaker 01: If we went by the denial of cert, she would be timely. [00:22:31] Speaker 01: But this court has said that pursuing other remedies isn't a good cause. [00:22:37] Speaker 02: She wasn't pursuing the remedy. [00:22:39] Speaker 02: She was pursuing this remedy and she thought that she had a right to have that forum adjudicated. [00:22:44] Speaker 02: That's not pursuing different remedies. [00:22:47] Speaker 02: That's not a let me take my claims in series. [00:22:50] Speaker 02: I'll put these here and I'll go with those first and I'll hold off on these until later. [00:22:54] Speaker 02: She tried to have them all adjudicated at the same place. [00:22:58] Speaker 02: Can I ask you one more question because your time is about to run out. [00:23:00] Speaker 02: On page 10 of your brief, one of the things that you refer to, I'll wait till you get to page 10. [00:23:10] Speaker 02: Okay. [00:23:13] Speaker 02: At the very bottom, the last full sentence, you say the administrative judge stated that the FAD provided explicit notice that the agency, the EEO office, lacked jurisdiction over her whistleblower claims and it provided notice of her MSPB appeal rights. [00:23:34] Speaker 02: And you point to appendix page seven and eight. [00:23:36] Speaker 02: You don't have to turn to appendix page seven and eight. [00:23:37] Speaker 02: Your characterization is [00:23:39] Speaker 02: pretty close to accurate, pretty much accurate. [00:23:41] Speaker 02: The characterization being the administrative judge said not only was her going to the, you know, Ninth Circuit unreasonable, but she had been on clear notice based on her FAD of what the proper forum was. [00:23:54] Speaker 02: Here's my problem. [00:23:55] Speaker 02: I'd like to ask you now to turn to the FAD with me because I don't think it gives her any notice at all. [00:24:00] Speaker 02: Any clear notice of where she ought to go. [00:24:02] Speaker 02: So I will tell you I think it's a clear error by the AJ or lack of substantial evidence. [00:24:07] Speaker 02: I agree with your characterization, that's what the AJ found, but the FAD is on, I believe, page, is it 52? [00:24:17] Speaker 02: I think the partner is talking about 72. [00:24:20] Speaker 02: 72, right, there it is. [00:24:22] Speaker 02: Appeal rights to the MSPB. [00:24:25] Speaker 02: Okay, so where does it explain that the EEO office, because it says the FAD provided explicit notice that the EEO office lacked jurisdiction [00:24:37] Speaker 02: and provided notice of her MSPB appeal rights. [00:24:41] Speaker 02: I assume from that statement and from the AJ's claim, you mean that's the proper forum for her to be bringing it in. [00:24:49] Speaker 01: Okay, so there's a notice of appeal rights at the end here, which complies with the EEOC regulation for notice of appeal rights. [00:24:56] Speaker 02: Well, no, but unless I'm mistaken, that's just you can appeal this decision to the MSPB. [00:25:01] Speaker 02: That's not your claim should properly have been filed in the MSPB. [00:25:06] Speaker 02: Am I wrong about that? [00:25:10] Speaker 01: No, the notion of appeal rights simply sets out the choice. [00:25:14] Speaker 00: Her choice... It doesn't tell you that you have to go to the MSPB as opposed to the district court. [00:25:18] Speaker 00: She did not have to go to the MSPB. [00:25:21] Speaker 00: Well... If you want to pursue Melissa Walter. [00:25:24] Speaker 01: Well, I mean... [00:25:25] Speaker 01: That would be customizing the notice of appeal rights to her various claims. [00:25:30] Speaker 01: I mean, would it also say, look, there are some claims here that can't be brought to the MSPD? [00:25:34] Speaker 01: That would be very close to giving her advice on what she should do. [00:25:37] Speaker 03: Do you remember the Supreme Court oral argument in the Perry case? [00:25:40] Speaker 03: I do. [00:25:41] Speaker 03: And how confused they were, legitimately confused by this whole mess of a system? [00:25:46] Speaker 03: Do you remember how they struggled with what on earth is going on here with this procedural quagmire? [00:25:55] Speaker 01: Well, I would just say to that, there's no confusion about the MSPB time limits, because they're right here in the decision, in the final ABC decision, page 72. [00:26:04] Speaker 01: It sets out the time limits for filing an MSPB. [00:26:08] Speaker 01: So there's never any confusion about that. [00:26:11] Speaker 00: The Conner case involved pursuing related claims, but not the same claim in another form? [00:26:21] Speaker 01: I'm confused by that. [00:26:23] Speaker 00: What did the Conner case involve? [00:26:25] Speaker 00: I don't have the Conner case here. [00:26:28] Speaker 00: You say that the Conner case, that you make an election, you're stuck with your election. [00:26:32] Speaker 00: What were the claims? [00:26:34] Speaker 00: What were the facts of Conner? [00:26:36] Speaker 01: Facts of Conner was of issues removed and [00:26:42] Speaker 01: They already had a case in district court on other discrimination claims and amended her complaint to include the termination as one of the claims. [00:26:51] Speaker 01: And then after that amendment of the complaint, then filed an appeal at the MSPB, which the MSPB dismisses on time. [00:26:57] Speaker 00: On the discrimination claims. [00:26:59] Speaker 01: And this court said this should not have been dismissed as untimely. [00:27:05] Speaker 01: It should have been dismissed for lack of jurisdiction. [00:27:08] Speaker 01: And this court has cited Connor many times. [00:27:11] Speaker 01: We also cite Williams. [00:27:12] Speaker 00: But that was a case in which her filing and raising the termination claim in the district court was proper, right? [00:27:18] Speaker 00: There wasn't any question about the propriety of it. [00:27:21] Speaker 01: But if district court had the same jurisdiction then that it has now. [00:27:26] Speaker 00: Well, but you say it doesn't have the jurisdiction. [00:27:29] Speaker 00: over the WPA claim. [00:27:30] Speaker 00: That's the problem. [00:27:31] Speaker 00: I'm not saying that. [00:27:34] Speaker 00: She made an election of remedies by going to the district court in Conner, but she could have gotten her claim adjudicated in Conner in the district court. [00:27:43] Speaker 00: That is not true here, right? [00:27:47] Speaker 01: I don't know if she had a non-discrimination claim that could not have been. [00:27:51] Speaker 01: I think she made the argument that she had non-discrimination claims. [00:27:53] Speaker 00: No, no, but your theory is she [00:27:56] Speaker 00: The district court wasn't a proper forum. [00:27:58] Speaker 00: That's not the situation in Connor. [00:28:00] Speaker 00: The district court was a proper forum. [00:28:02] Speaker 01: I want to be clear. [00:28:03] Speaker 01: My theory is not that the district court was not the proper forum. [00:28:06] Speaker 01: I understand. [00:28:07] Speaker 00: I'm saying Connor's different, because in Connor, when you file to the district court, you could get relieved, correct? [00:28:15] Speaker 01: On discrimination claims, yes. [00:28:19] Speaker 01: District court only has a jurisdiction that it has. [00:28:22] Speaker 02: When you keep saying it's not my position, it was the Ninth Circuit's ruling, didn't the government make that argument to the Ninth Circuit? [00:28:31] Speaker 02: Wasn't it in fact the government's position that the Ninth Circuit adopted? [00:28:34] Speaker 01: I believe it was based on Ninth Circuit law, existing Ninth Circuit law. [00:28:38] Speaker 02: No, that's not my question. [00:28:39] Speaker 02: Didn't the government argue, no jurisdiction in that case, on that very basis? [00:28:45] Speaker 02: So are you not the government? [00:28:46] Speaker 02: When you say it's not my position, are you meaning to tell me you personally disagree with what the government argued in Kerr? [00:28:52] Speaker 01: No, I'm not. [00:28:52] Speaker 01: But I don't think this court even needs to get into. [00:28:55] Speaker 02: But what did you mean by that? [00:28:56] Speaker 02: When you repeatedly in response to Judge Dyck said, that's not my position. [00:29:00] Speaker 02: That's the Ninth Circuit's position. [00:29:01] Speaker 01: It's not that it's not my position. [00:29:04] Speaker 01: I think what Judge Dyck said is that I'm saying she should have gone to the MSPB. [00:29:08] Speaker 01: I'm not saying that. [00:29:08] Speaker 01: It was her choice. [00:29:09] Speaker 01: Thomas has made clear the choice is with the complainant. [00:29:14] Speaker 02: But just to be clear, the government's view is that Kerr is correctly decided? [00:29:22] Speaker 01: Again, I don't think this court needs to reach that, but that is what the government argued in Kerr, yes. [00:29:29] Speaker 01: I don't think this court even needs to reach that, because you have Conner, which actually is directly on point. [00:29:36] Speaker 00: But it's not directly on point, because in Conner, she could get relief in the district court, whereas here she couldn't. [00:29:43] Speaker 01: I believe it's either in Connor or Williams. [00:29:46] Speaker 02: Williams is a non-presidential case. [00:29:49] Speaker 02: That's not relevant. [00:29:50] Speaker 01: It's not binding. [00:29:51] Speaker 01: Well, if you make an election of a forum, you're also making an election of a remedy. [00:29:56] Speaker 01: And your election of a remedy is based on what's available. [00:29:59] Speaker 00: So if she had the opportunity to be... That's exactly the point, what's available. [00:30:04] Speaker 00: And under the government's theory, it wasn't an available forum because she couldn't properly file there. [00:30:09] Speaker 00: So it's different from Connor. [00:30:13] Speaker 01: It was her choice to go there, and she did. [00:30:18] Speaker 01: I don't know that that's a government argument that she had to go to the MSPD. [00:30:23] Speaker 01: The government never argued. [00:30:25] Speaker 03: Can I take you back to the point, Judge, when we're made early on, it seems like hours ago, in this discussion, which is that your footnote that says she can still present her whistleblower came to the Office of Special Counsel. [00:30:36] Speaker 03: I don't have 12, 14 in front of me. [00:30:39] Speaker 03: Are there no time limits in the Office of Special Counsel? [00:30:42] Speaker 01: That's right. [00:30:42] Speaker 01: That's exactly why I put the footnote in, because there is no time limit to go to the Office of Special Counsel. [00:30:49] Speaker 01: I will say this, though. [00:30:50] Speaker 03: But I thought your argument was not just the timeliness, but sort of like you can't have jurisdiction over it. [00:30:55] Speaker 03: The MSPB can't adjudicate this claim now. [00:30:58] Speaker 01: As things stand now, the MSPB can adjudicate it. [00:31:01] Speaker 03: Can. [00:31:02] Speaker 03: Cannot. [00:31:03] Speaker 03: Cannot. [00:31:04] Speaker 03: But if this same case were to come up through the [00:31:07] Speaker 03: Office of Special Counsel, it would. [00:31:09] Speaker 03: That would obviate all of the other problems with this? [00:31:13] Speaker 01: That would, didn't it, or it would have jurisdiction, but I don't know, I'm not commenting on BICO as a success, but yes. [00:31:18] Speaker 01: Sure. [00:31:18] Speaker 01: That's why the footnote's in there. [00:31:20] Speaker 01: That's exactly why it's in there, because there's no funding from the Special Counsel, and if she can persuade them to investigate, then that's a potential avenue. [00:31:27] Speaker 03: Does she have to, I mean, there are some instances in which the complainant can't go to the MSPB without having previously gone to the Office of Special Counsel. [00:31:36] Speaker 03: that the circumstance here with the MSPB say, no, no, no, you've got to go back to the special counsel? [00:31:41] Speaker 01: There's two ways the MSPB can hear a whistleblower claim. [00:31:43] Speaker 01: One is it's combined with an adverse action, a removal. [00:31:49] Speaker 01: Or if it's not an adverse action, then the complainant has to go to OSC first and exhaust there. [00:31:56] Speaker 03: OK, and this one is tied to a? [00:31:58] Speaker 03: This one was tied to a constructive discharge. [00:32:02] Speaker 03: Thank you. [00:32:06] Speaker 03: get some time if you need it. [00:32:09] Speaker 02: Well I'm hoping you'll address Connor. [00:32:11] Speaker 04: In reviewing that I didn't bring it up in my initial presentation because it seems completely irrelevant to me. [00:32:21] Speaker 04: My understanding of the facts on Connor is that he alleged [00:32:25] Speaker 04: He had an EEO complaint internally. [00:32:28] Speaker 04: He had an external EEO complaint in district court. [00:32:32] Speaker 04: And then he just added the removal to his internal EEO complaint. [00:32:34] Speaker 04: And they said, you're litigating the same case in the district court as you are in the administrative process. [00:32:40] Speaker 04: And that's what's not allowed. [00:32:42] Speaker 04: So it wasn't that easy. [00:32:42] Speaker 02: So you can't be in two places at once. [00:32:44] Speaker 04: Yeah, it was the exact same case. [00:32:45] Speaker 03: And that's specifically. [00:32:46] Speaker 03: Can I ask you about the Office of Special Counsel? [00:32:49] Speaker 03: Right. [00:32:50] Speaker 03: Why, I mean, you could have saved yourself a year on the appeal. [00:32:53] Speaker 03: Is it your view, what would she lose if it was, is it because it's tied to her adverse action? [00:32:59] Speaker 04: We'll be back here in a year or two when the agency argues latches, because it's absolutely, they're able to argue that we should have presented this back at the time using the equitable effects of latches. [00:33:10] Speaker 04: We faced it before in the OSC. [00:33:12] Speaker 04: There are no time notes for filing complaint in the OSC, but the OSC will say, well, why didn't you raise this back then? [00:33:18] Speaker 04: And we'll be back in the exact same consideration, and not any further along in the processing of this case. [00:33:24] Speaker 04: And then finally, you brought up the point of the FAD, which I did want to talk about. [00:33:31] Speaker 04: Council says that, you know, they listed out all these MSPB deadlines. [00:33:35] Speaker 04: And then at the very end of the FAD at page 73, it specifically says, in lieu of an appeal to the board, the appellate may file a civil action in an appropriate United States district court within 30 calendar days of receipt. [00:33:47] Speaker 02: I know. [00:33:47] Speaker 02: I'm thinking, how can the AJA find that that FAD clearly lets her know where she has to go and on what? [00:33:55] Speaker 02: OK. [00:33:55] Speaker 02: It was a form. [00:33:56] Speaker 02: I mean, and it mentioned both. [00:33:58] Speaker 02: Yeah, that was very confusing to me. [00:34:00] Speaker 02: Seemed anything but crystal clear. [00:34:02] Speaker 04: And when the agency ran with it and said that, that meant that she had to present, had to file civil suit and discrimination claims, but it wasn't. [00:34:10] Speaker 02: Nothing about the statement, break out the claims and say, these go here, these go here. [00:34:14] Speaker 02: Nothing. [00:34:17] Speaker 03: Thank you. [00:34:17] Speaker 03: We thank both sides. [00:34:19] Speaker 03: We appreciate your patience with us and your effort to make a case not withstanding harsh words. [00:34:27] Speaker 03: Thank you.