[00:00:04] Speaker 03:
Next case is Keith Litchfield versus Merit Systems Protection Board 2017, 2165.

[00:00:13] Speaker 03:
Mr. Blase?

[00:00:15] Speaker 03:
Yes.

[00:00:20] Speaker 01:
Thank you, Your Honors.

[00:00:21] Speaker 01:
My name is Lee Leon Blase, B-L-A-I-S, and I'm counsel for Mr. Litchfield, who is also present in the courtroom here today.

[00:00:30] Speaker 01:
This case is here because of the

[00:00:32] Speaker 01:
dysfunction of the Merit Systems Protection Board.

[00:00:35] Speaker 01:
There is no, as I'm sure you're all aware, there is no internal appeal.

[00:00:40] Speaker 01:
The board is dysfunctional, does not have a quorum, so the only way to get appellate jurisdiction is to allow an order to become final and then take an appeal.

[00:00:51] Speaker 01:
And that's what we're doing here.

[00:00:53] Speaker 01:
This takes up a lot of your time, and I think it's completely unnecessary, but it is what it is, as they say.

[00:01:00] Speaker 01:
This case is about

[00:01:02] Speaker 01:
process.

[00:01:03] Speaker 01:
It has nothing to do with the merits of the case.

[00:01:06] Speaker 01:
There has been no case decided on its merits.

[00:01:09] Speaker 01:
There's been no discovery in this case.

[00:01:12] Speaker 01:
There has been no hearing in this case.

[00:01:15] Speaker 01:
There has been nothing to adjudicate this case.

[00:01:19] Speaker 03:
But there are issues.

[00:01:21] Speaker 03:
There are two issues, and they were both decided by the administrative judge, which became the opinion

[00:01:27] Speaker 03:
decision of the board.

[00:01:29] Speaker 01:
But the issues were not decided.

[00:01:33] Speaker 03:
They were decided by the administrative judge.

[00:01:36] Speaker 01:
The issue of due process was never decided, never addressed.

[00:01:43] Speaker 04:
Due process as to what?

[00:01:45] Speaker 04:
Your client filed an IRA claim

[00:01:48] Speaker 04:
saying he'd been retaliated against for making certain disclosures.

[00:01:53] Speaker 04:
The administrative judge looked at that and found that there was no need for a hearing because he failed to make non-frivolous allegations of retaliation.

[00:02:03] Speaker 04:
That's the due process he is entitled to for the claim he filed.

[00:02:07] Speaker 01:
That what you said is not correct.

[00:02:10] Speaker 01:
The fact is that what he filed was an appeal based upon

[00:02:17] Speaker 01:
his threatened firing, and then his actual firing.

[00:02:20] Speaker 04:
Where did he file an appeal based on his removal?

[00:02:23] Speaker 04:
Show me the document that says, I appeal my removal to the MSPB.

[00:02:29] Speaker 01:
It's in the appendix.

[00:02:30] Speaker 04:
Show it to me.

[00:02:37] Speaker 01:
The appeal was filed based upon USC 1501, I believe it is, which is a broad statute having to do with any personnel action.

[00:02:47] Speaker 04:
and holding the appendix slightly to the page.

[00:02:57] Speaker 01:
The initial filing was at Appendix 29, filed on June 17, 2015.

[00:03:04] Speaker 01:
That document says absolutely nothing

[00:03:16] Speaker 01:
about whistleblower.

[00:03:19] Speaker 04:
Where does it say he's appealing his removal?

[00:03:22] Speaker 04:
Was he even removed at the time this was filed?

[00:03:25] Speaker 01:
No.

[00:03:25] Speaker 04:
Then it's not an appeal of his removal?

[00:03:27] Speaker 01:
No.

[00:03:28] Speaker 01:
Judge, the statute, 1501, provides specific jurisdiction for threatened removal.

[00:03:36] Speaker 01:
He had already been given a notice that it was an intent.

[00:03:39] Speaker 04:
I don't know what 1501 is.

[00:03:43] Speaker 04:
Are you talking about 1214 and

[00:03:45] Speaker 01:
I'll give it to you in a second, Judge.

[00:04:06] Speaker 01:
I stand corrected.

[00:04:07] Speaker 01:
The title of this was Appeal of Keith Litchfield, pursuant to 5 U.S.C.

[00:04:11] Speaker 01:
1221.

[00:04:12] Speaker 04:
Well, that's an IRA appeal.

[00:04:15] Speaker 04:
It's an individual right of action appeal, which suggests that you file the complaint with the special counsel saying, my client is being retaliated against for making certain disclosures.

[00:04:28] Speaker 04:
And then you appeal that when they don't reach a decision in your favor.

[00:04:33] Speaker 01:
That's not the basis of the appeal, Judge.

[00:04:35] Speaker 01:
The 5 U.S.C.

[00:04:37] Speaker 01:
1221A specifically says, subject to the provisions of subsection B of the section,

[00:04:44] Speaker 01:
former employee or applicant for employment with respect to any personnel action, any personnel action taken or proposed to be taken.

[00:04:53] Speaker 01:
And he was given notice of intent to fire him.

[00:04:57] Speaker 03:
But this has to be based on a protected disclosure and relating to public health or safety.

[00:05:05] Speaker 03:
And the AJ found that there wasn't such a disclosure because

[00:05:10] Speaker 03:
The skin rash was caused by exposure to cleaning material, which didn't meet the test of a specific danger to public health essential.

[00:05:19] Speaker 01:
Judge, none of that's true.

[00:05:21] Speaker 01:
It just isn't true.

[00:05:22] Speaker 03:
You mean it's not true that the A.J.

[00:05:24] Speaker 03:
so held?

[00:05:26] Speaker 01:
Oh, no.

[00:05:27] Speaker 01:
She did so hold.

[00:05:28] Speaker 01:
No question about it.

[00:05:29] Speaker 04:
You're saying it's not true that 1221 requires you to exhaust your remedies with the special counsel.

[00:05:35] Speaker 01:
We didn't make the filing with the Special Counsel.

[00:05:38] Speaker 04:
What did you say in that file?

[00:05:39] Speaker 01:
He didn't accept jurisdiction.

[00:05:40] Speaker 01:
I mean, he didn't respond, as I recall.

[00:05:43] Speaker 01:
But the simple fact was that we've cited to the law here, public employees, federal employees, if they get fired, are entitled to a hearing.

[00:05:54] Speaker 04:
They're entitled to a right to appeal under Chapter 75.

[00:05:58] Speaker 04:
You did not file an appeal under Chapter 75.

[00:06:01] Speaker 04:
You filed an individual right of action appeal under 1221, which has different requirements, different exhaustion requirements.

[00:06:08] Speaker 04:
And I didn't see anything in the records where you even brought your client's removal to the special counsel to pursue it as a visible airplane.

[00:06:17] Speaker 04:
1221 is a visible statute.

[00:06:19] Speaker 04:
It is not a general appeal statute.

[00:06:21] Speaker 01:
It was in fact noticed that was asked in the papers, the notice to the special counsel was given.

[00:06:28] Speaker 04:
About the removal?

[00:06:29] Speaker 01:
Yes.

[00:06:30] Speaker 01:
Where?

[00:06:30] Speaker 01:
About the whistleblower, excuse me, about whistleblower.

[00:06:32] Speaker 04:
Where did you complain to the special counsel that my client was removed improperly for whistleblower retaliation?

[00:06:40] Speaker 01:
Well, I think we filed at that point he hadn't been removed.

[00:06:44] Speaker 04:
Right.

[00:06:46] Speaker 04:
So you never exhausted the removal with the special counsel.

[00:06:50] Speaker 04:
So the removal is not proper under a 1221 claim.

[00:06:54] Speaker 01:
Well, that wasn't what the hearing officer held.

[00:06:59] Speaker 01:
The hearing officer, in fact, held that there had been a legitimate exhaustion of the administrative remedy.

[00:07:05] Speaker 02:
So it's right in the decision.

[00:07:06] Speaker 02:
Not as to the firing, though.

[00:07:09] Speaker 02:
Excuse me.

[00:07:09] Speaker 02:
Not as to the firing or proposed firing.

[00:07:13] Speaker 01:
Well, because she never considered the firing, Judge.

[00:07:16] Speaker 04:
Because you didn't file an appeal of the firing.

[00:07:18] Speaker 04:
And you didn't exhaust your remedies with regard to the special counsel of the firing.

[00:07:22] Speaker 01:
Let me argue this, Judge.

[00:07:25] Speaker 01:
If she claimed there was no jurisdiction, why did she hold, when I filed a motion to enjoin the firing, she didn't come back and say, oh, I don't have any jurisdiction here.

[00:07:37] Speaker 01:
I can't hold on this.

[00:07:40] Speaker 01:
She acted on it.

[00:07:41] Speaker 01:
She denied our remedy, but she acted on it, thereby accepting the jurisdiction of the firing.

[00:07:48] Speaker 01:
She went in and said, yes.

[00:07:50] Speaker 01:
And she went in.

[00:07:51] Speaker 01:
There was a hole.

[00:07:52] Speaker 01:
It's attached here.

[00:07:53] Speaker 01:
And so she considered it.

[00:07:57] Speaker 01:
That is accepting the notice that we had given her that, look, Judge, this has now been a conversion.

[00:08:05] Speaker 01:
This was a threatened firing, which has now resulted in a firing.

[00:08:09] Speaker 01:
We're asking you to enjoin this.

[00:08:11] Speaker 02:
So what you're really doing is asking us to treat the motion to enjoin the firing as an adverse action appeal.

[00:08:21] Speaker 01:
Yes, it is.

[00:08:22] Speaker 01:
I mean, the firing is obviously adverse.

[00:08:24] Speaker 04:
But you didn't file an appeal from it.

[00:08:26] Speaker 04:
The only document you can point me to is an

[00:08:29] Speaker 04:
is an IRA appeal form that predates the actual firing.

[00:08:34] Speaker 04:
The American Systems Protection Board doesn't even handle these cases under the same trap.

[00:08:38] Speaker 04:
If they had docketed this as an adverse action, you'd have an entirely different case number.

[00:08:43] Speaker 04:
They've docketed this as an IRA appeal.

[00:08:45] Speaker 01:
Then, Judge, rhetorically, why would she have even considered the injunction?

[00:08:52] Speaker 04:
You have a right under the IRA appeal statutes, if you've exhausted with the special counsel,

[00:08:57] Speaker 04:
to ask them to enjoin it as a whistleblower case.

[00:09:00] Speaker 04:
That doesn't mean you filed a direct appeal.

[00:09:02] Speaker 04:
You didn't file a direct appeal.

[00:09:04] Speaker 01:
Well, Judge, I just quoted to you the statute.

[00:09:08] Speaker 04:
I know what the statute says.

[00:09:09] Speaker 04:
The statute is an IRA statute.

[00:09:11] Speaker 04:
You're suggesting, I mean, are you aware of Chapter 75?

[00:09:16] Speaker 04:
Chapter 75 is what gives tenured federal employees the right to appeal major adverse actions to the board.

[00:09:23] Speaker 04:
They don't have to go through the special counsel to do that.

[00:09:26] Speaker 04:
They can file directly with the board.

[00:09:28] Speaker 04:
You didn't do that.

[00:09:29] Speaker 04:
There is no document in here, I see, that suggests you file a Chapter 75 appeal.

[00:09:35] Speaker 04:
So we only can look at this under the guise of 1221, which is an IRA appeal.

[00:09:40] Speaker 04:
And to make an IRA appeal, you have to make non-firmless allegations that your client was retaliated against for open and productive disclosure.

[00:09:49] Speaker 01:
Then let me address that.

[00:09:50] Speaker 04:
And the board looked at that.

[00:09:51] Speaker 04:
So there's no process.

[00:09:52] Speaker 01:
Well, I don't see any evidence that the board looked at anything.

[00:09:55] Speaker 04:
Well, that's the basis of the George decision, that these elect protected disclosure.

[00:09:59] Speaker 01:
There was a significant submission with regard to the issue of jurisdiction.

[00:10:08] Speaker 01:
All right, we submitted, I think, five or six affidavits citing to the facts.

[00:10:13] Speaker 01:
They're in the appendix.

[00:10:15] Speaker 01:
And the judge didn't even address them.

[00:10:19] Speaker 01:
There's not even any reference.

[00:10:21] Speaker 01:
in this decision.

[00:10:23] Speaker 01:
Now, this decision was put together very, very quickly.

[00:10:27] Speaker 01:
And it was because this case had sat for almost two years under a standard that requires that board to render a decision in 120 days.

[00:10:37] Speaker 01:
Almost two years, we filed notice and, in fact, did file a request for a writ of mandamus.

[00:10:44] Speaker 01:
And it was only when we did that that this decision was rapidly written after that fact.

[00:10:51] Speaker 01:
But there's no reference here at all, Judge, nothing to our submissions on the issue of jurisdiction.

[00:11:00] Speaker 04:
I see a very extensive decision in the very first pages of your appendix where the administrative judge is addressing the alleged protected disclosures you made and why they don't make non-tribalist allegations.

[00:11:13] Speaker 04:
Isn't that what the AJ's decision says?

[00:11:15] Speaker 01:
I don't see any detail of that at all.

[00:11:18] Speaker 01:
There are blanket statements.

[00:11:27] Speaker 01:
I'm talking about the affidavit, Judge, that we've submitted.

[00:11:31] Speaker 04:
Are you saying that the AJ erred because it did not go through and identify every specific piece of evidence?

[00:11:38] Speaker 04:
You submitted and say why it did or didn't support it?

[00:11:40] Speaker 01:
Well, I would expect some reference to the evidence, something, some acknowledgement.

[00:11:45] Speaker 04:
Well, on page five of the decision, the AJ decides, five to six, recites in detail

[00:11:52] Speaker 04:
your client's factual statements incites to the various record pieces that explain the disclosures about the testing, and then goes on and finds those insufficient.

[00:12:07] Speaker 01:
You are looking at, Judge, on the appendix?

[00:12:10] Speaker 04:
I'm looking at the AJ's opinion.

[00:12:11] Speaker 04:
I mean, I assume you read the AJ's opinion.

[00:12:13] Speaker 04:
It goes through these

[00:12:15] Speaker 04:
in approximately 12 pages and explains why here are the disclosures you've identified.

[00:12:21] Speaker 04:
Here's why I find them to be insufficient to state a claim for jurisdiction.

[00:12:28] Speaker 04:
Where is the error in this decision?

[00:12:30] Speaker 01:
Well, there's no reference to the evidence.

[00:12:36] Speaker 04:
What evidence specifically?

[00:12:38] Speaker 01:
The affidavit judge that we submitted.

[00:12:41] Speaker 01:
Repeated affidavits.

[00:12:44] Speaker 01:
I don't see any reference.

[00:12:45] Speaker 04:
But do those affidavits say that differ from what was discussed here?

[00:12:49] Speaker 01:
Yes.

[00:12:49] Speaker 01:
What?

[00:12:51] Speaker 01:
In terms of the detail, in terms of the hostile work environment, in terms of all of the submissions that had been made to the special counsel, all of those things were outlined in affidavits that were submitted to the court.

[00:13:06] Speaker 03:
Counsel, you wanted to save some rebuttal time?

[00:13:08] Speaker 01:
I do.

[00:13:09] Speaker 03:
I do, Judge.

[00:13:09] Speaker 03:
So we will do that for you.

[00:13:12] Speaker 03:
Thank you.

[00:13:19] Speaker 03:
Morning.

[00:13:21] Speaker 00:
May it please the court?

[00:13:22] Speaker 00:
The Administrative Judge properly found that Petitioner did not establish MSPB jurisdiction over his whistleblowing appeal.

[00:13:29] Speaker 00:
The Administrative Judge did not consider Petitioner's alleged removal because, as has been discussed, he did not exhaust that allegation with the Office of Special Counsel.

[00:13:39] Speaker 00:
But even if he had exhausted that allegation, or about that alleged personnel action,

[00:13:44] Speaker 00:
That issue would never have been reached because Petitioner did not satisfy the threshold requirement by making a non-frivolous allegation for a protected disclosure.

[00:13:54] Speaker 00:
Petitioner did not make a non-frivolous allegation that he had disclosed any substantial and specific danger to public health or safety.

[00:14:03] Speaker 00:
This court has held that the board should consider three factors.

[00:14:05] Speaker 02:
It certainly did hold in a specific danger to public health, right?

[00:14:13] Speaker 00:
Well, the allegations that he made did not rise to the level of indicating a substantial and specific danger to public health.

[00:14:21] Speaker 00:
With regard to the allegation about the individual that was having a rash, his own investigation concluded that was most likely due to cleaning products that were being used in the lab at the time.

[00:14:34] Speaker 00:
And although he did recommend additional air testing, if you look at his actual

[00:14:40] Speaker 00:
Report on that that he submitted which is that appendix?

[00:14:43] Speaker 00:
282 and actually 283 his conclusions are state that it is doubtful that there is an issue with the air quality in the room and he goes on to say That it the likelihood of contact dermatitis is indicative of a chemical exposure and possibly related to the use of purple top wipes for routine desk and training surface cleaning and

[00:15:08] Speaker 03:
And then so... So you're saying he himself negates the idea of a non-trivalous allegation of danger to public health?

[00:15:16] Speaker 00:
Right.

[00:15:17] Speaker 00:
What he submitted actually indicates that wouldn't be a substantial and specific danger to public health.

[00:15:22] Speaker 00:
And then with regard to his allegation about the possible Legionella in the water supply, that one's even weaker because he didn't supply any actual evidence that he had knowledge that there was such a

[00:15:34] Speaker 00:
such a presence of Legionella.

[00:15:36] Speaker 00:
It was all based on hearsay of what he heard other employees saying.

[00:15:39] Speaker 03:
And did that go before the OSC?

[00:15:43] Speaker 00:
So there is some evidence that he presented that allegation to OSC that AJ found that he did not exhaust that allegation there.

[00:15:51] Speaker 00:
But then she also went on to find that even if he had exhausted it, it wouldn't have been a protected disclosure.

[00:15:56] Speaker 00:
So even assuming that the AJ was incorrect in finding that not exhausted because of the additional finding

[00:16:04] Speaker 00:
that it's not a protected disclosure, that that issue would not affect the outcome of the decision.

[00:16:13] Speaker 00:
So to determine whether there was a substantial and specific danger to public health or safety, the court considers three factors.

[00:16:21] Speaker 00:
The first one is the likelihood of harm resulting from the danger.

[00:16:25] Speaker 00:
Second is the imminence of the harm.

[00:16:26] Speaker 02:
So he satisfied the first one, right?

[00:16:30] Speaker 02:
I would disagree that he said... If there was legionel, that's a danger to public safety, right?

[00:16:38] Speaker 00:
If his allegation that there was legionel was correct, that would be a substantial danger.

[00:16:42] Speaker 00:
However, in order to be a non-tribalist allegation, he has to supply some... The test is whether a disinterested observer with knowledge of the facts known to petitioner would have concluded that his disclosure is evidence of a substantial and specific danger.

[00:17:00] Speaker 00:
He supplied in support of that allegation.

[00:17:02] Speaker 00:
Basically, it was just based on his own assertions.

[00:17:06] Speaker 00:
He didn't supply any actual evidence of any kind to support that.

[00:17:11] Speaker 03:
But Northree says that wasn't disclosed to the OSC.

[00:17:15] Speaker 00:
She found that that was not exhausted before the OSC.

[00:17:18] Speaker 00:
That's correct.

[00:17:18] Speaker 02:
Are you defending that decision?

[00:17:21] Speaker 02:
You don't respect the decision?

[00:17:23] Speaker 00:
Yes, I'm defending the entire decision.

[00:17:26] Speaker 00:
But she also made the alternative finding that it was not protected.

[00:17:29] Speaker 02:
I thought you said earlier that he had said something about Legionella to the OSC.

[00:17:33] Speaker 00:
Well, if you look at his filing with OSC, it's sort of garbled.

[00:17:39] Speaker 00:
But there is some mention of possible Legionella.

[00:17:43] Speaker 00:
But it's mixed in with the allegations about the air supply as well.

[00:17:46] Speaker 00:
So it's unclear whether he was actually alleging that in the water supply.

[00:17:52] Speaker 00:
But either way, that wouldn't have been a protected disclosure.

[00:17:55] Speaker 03:
You're saying if he was removed, this is a whistleblower case, rather than an adverse action appeal.

[00:18:04] Speaker 03:
And the criteria for a whistleblower case, number one, are presenting it to the OSC and making a non-trivalous allegation of a danger to public safety.

[00:18:15] Speaker 03:
And the AJ held that none of those criteria were met.

[00:18:21] Speaker 03:
That's the case, right?

[00:18:22] Speaker 00:
Correct, yes.

[00:18:24] Speaker 00:
And specifically with regard to his removal, he did not bring that to OSCE at all.

[00:18:28] Speaker 00:
So that alleged personnel action was not exhausted before OSCE.

[00:18:34] Speaker 04:
How does that work in practice?

[00:18:41] Speaker 04:
Suppose somebody has exhausted various personnel actions, including

[00:18:47] Speaker 04:
a threat of removal with OSC and OSC closes the case and you file at the MSPB and during the litigation at the MSPB, the removal, the threatened removal, ripens into an actual removal.

[00:19:00] Speaker 04:
Are they required to go back if they want to assert it to a whistleblower claim, even based upon the same disclosures to OSC and exhaust as to the new personnel action, or is it just folded into the new case?

[00:19:13] Speaker 00:
Yes, they are required to exhaust each alleged personal action with OSCE.

[00:19:17] Speaker 00:
What's that based on?

[00:19:19] Speaker 00:
Well, this court has held in Ellison and Sarau that MSPP's jurisdiction in an IRA appeal is limited to the issues raised before OSCE.

[00:19:30] Speaker 00:
And so the court has interpreted that as that includes each personal action that he was alleged.

[00:19:37] Speaker 00:
And I would note that he was informed

[00:19:42] Speaker 00:
by the judge in her order denying his first stay request of the proposed removal, which is at appendix 20, that he had not exhausted that allegation before OSCE.

[00:19:53] Speaker 00:
So at that point, he was put on notice that he needed to go exhaust any future personnel actions before OSCE and before trying to include them in this case.

[00:20:02] Speaker 00:
And I will note that he was represented throughout the process.

[00:20:05] Speaker 04:
Otherwise, I couldn't tell from the record.

[00:20:07] Speaker 04:
I don't know if you know.

[00:20:08] Speaker 04:
Is he otherwise?

[00:20:10] Speaker 04:
an employee that could have filed a direct appeal from his removal to them as PB?

[00:20:15] Speaker 04:
Or is he a VA?

[00:20:17] Speaker 04:
There are certain classes that can't.

[00:20:19] Speaker 00:
I believe he could have filed a removal.

[00:20:21] Speaker 00:
It's unclear whether he actually retired or was removed.

[00:20:25] Speaker 00:
It's unclear from the record.

[00:20:26] Speaker 00:
So if he had brought him removal, it might have had to be an involuntary retirement.

[00:20:30] Speaker 04:
We don't have an actual SF50 noting a removal.

[00:20:34] Speaker 00:
I don't believe that's in the record.

[00:20:37] Speaker 00:
colleague would know.

[00:20:39] Speaker 00:
There is a notice of removal in there.

[00:20:41] Speaker 00:
And then there's a later dated notice of retirement.

[00:20:43] Speaker 00:
So he probably retired in lieu of being removed.

[00:20:48] Speaker 00:
But I'm not sure exactly what the facts are on that, because it was never appealed to the board.

[00:20:53] Speaker 00:
So that record wasn't developed.

[00:20:56] Speaker 02:
I'm sorry.

[00:20:57] Speaker 02:
Where is his affidavit about the Legionella in the record?

[00:21:02] Speaker 02:
What page?

[00:21:03] Speaker 00:
You mean his appeal to his complaint with OSC?

[00:21:06] Speaker 02:
No, his file is with the MSPB.

[00:21:11] Speaker 02:
He submitted an affidavit, right?

[00:21:17] Speaker 00:
He submitted a series of affidavits signed by co-workers about it.

[00:21:22] Speaker 00:
They submitted one by himself, didn't they?

[00:21:24] Speaker 00:
I'm not sure exactly what page that would be.

[00:21:29] Speaker 00:
Maybe my colleague knows.

[00:21:34] Speaker 00:
Yeah, I'm not sure exactly where that is, if that is in the record.

[00:21:39] Speaker 00:
Maybe it's at 554.

[00:21:41] Speaker 00:
Is that 554?

[00:21:42] Speaker 00:
All right.

[00:21:54] Speaker 00:
Yeah, OK.

[00:22:13] Speaker 02:
He says in paragraph 19 on page 556, he says, beginning in early 2014, and possibly before this committee became aware of the presence of Legionella in the daytime water supply.

[00:22:31] Speaker 02:
And we find no evidence that the committee of this power did anything about that.

[00:22:37] Speaker 00:
Right.

[00:22:37] Speaker 00:
So that's basically the only evidence he supplied about the Legionella was his assertion that there

[00:22:43] Speaker 00:
he became aware that there was Legionella in the water supply.

[00:22:46] Speaker 02:
Why isn't that sufficient?

[00:22:49] Speaker 00:
Well, to meet the non-firmless allegation standard, you have to allege it has to be more than a conclusory allegation.

[00:22:59] Speaker 00:
And it has to be supported by affidavits or other evidence.

[00:23:03] Speaker 00:
So it is an affidavit that he signed.

[00:23:05] Speaker 00:
But given that that's all there was,

[00:23:09] Speaker 00:
The judge concluded that that was not sufficient to meet the non-verbalist standard.

[00:23:14] Speaker 00:
It was more of a conclusory.

[00:23:17] Speaker 02:
He talks about deaths from pneumonia in the facility.

[00:23:24] Speaker 00:
Right.

[00:23:24] Speaker 00:
Well, again, these are just his assertions that he made, so unsupported by anything else.

[00:23:29] Speaker 02:
That's what happens.

[00:23:30] Speaker 02:
People submit affidavits making assertions, and you have a hearing to determine whether

[00:23:41] Speaker 00:
Well, given her consideration of what he submitted, she just concluded that that was not sufficient to meet the standard.

[00:23:47] Speaker 00:
Again, a non-privilege allegation, it's not just any allegation, it has to be supported by something, even though it's a low standard.

[00:23:55] Speaker 02:
You're not suggesting that you couldn't make a non-privilege allegation by submitting your own affidavit, right?

[00:24:03] Speaker 00:
You could if it was

[00:24:07] Speaker 00:
more substantial than what he's alleging.

[00:24:10] Speaker 00:
He's not alleging any firsthand knowledge of the Legionella contamination.

[00:24:14] Speaker 00:
He's just making these sort of statements that he was aware that it was there.

[00:24:17] Speaker 00:
He doesn't say why or what caused him to think that, really.

[00:24:22] Speaker 00:
And so that sort of affidavit is not enough to meet the standard.

[00:24:32] Speaker 00:
So if the court has no further questions, I would just ask that you affirm the MSPB's decision and dismiss the appeal.

[00:24:39] Speaker 03:
Thank you, counsel.

[00:24:40] Speaker 03:
Thank you.

[00:24:42] Speaker 03:
Mr. Blase has some rebuttal time, a little over two minutes.

[00:24:47] Speaker 01:
Yes, Judge.

[00:24:47] Speaker 01:
Thank you.

[00:24:51] Speaker 01:
I want to draw the court's attention to Appellant's response to the board's jurisdictional order.

[00:24:56] Speaker 01:
That's found at Appendix 549.

[00:25:00] Speaker 01:
and continues on to 552.

[00:25:04] Speaker 01:
And then there are a series of affidavits beginning at 554.

[00:25:07] Speaker 01:
That's the affidavit of the appellant, which is 43 paragraphs.

[00:25:17] Speaker 01:
It continues to 560.

[00:25:18] Speaker 01:
Then there is the affidavit of Narciso Martinez, another individual who studied the problem of legionary.

[00:25:30] Speaker 01:
Affidavit of Miles Washko, another coworker who was aware of the facts of this situation.

[00:25:37] Speaker 01:
Affidavit of Mona Hefner, another coworker in the safety office.

[00:25:44] Speaker 01:
All of these were submitted to the court.

[00:25:47] Speaker 01:
Affidavit of Kevin Baker, another individual who worked in the safety office, affirming and repeating the allegations made by Mr. Litchfield.

[00:25:57] Speaker 03:
Those relate to Legionnaires?

[00:26:00] Speaker 01:
It relates to the failure to investigate.

[00:26:05] Speaker 04:
Now, I... Are you saying that the AJ didn't consider those at all?

[00:26:12] Speaker 01:
I'm sorry, that what?

[00:26:12] Speaker 04:
That the AJ failed to consider those at all?

[00:26:14] Speaker 01:
No, there's no reference to them.

[00:26:16] Speaker 04:
Judge, we're not... What about footnote nine on page nine of the decision, which says the appellant also submitted the affidavits of several co-workers and references the affidavit you're talking about?

[00:26:29] Speaker 01:
Yes, there's no discussion of them.

[00:26:31] Speaker 03:
They're not signed or dated.

[00:26:33] Speaker 01:
Well, they're signed under pains and penalties of perjury, as is the federal practice.

[00:26:38] Speaker 04:
I find these affidavits to be of little probative value.

[00:26:41] Speaker 04:
She describes them, she describes what they say, and then she finds them to be of little probative value.

[00:26:47] Speaker 04:
If that's her conclusion, what else does she have to say?

[00:26:49] Speaker 01:
Well, that's what we're challenging, Judge, that there is no probative value.

[00:26:53] Speaker 01:
I don't know what one has to do.

[00:26:55] Speaker 01:
in order to meet that standard.

[00:26:56] Speaker 04:
But you were telling me before that she didn't consider them at all.

[00:27:00] Speaker 01:
And that's completely untrue.

[00:27:02] Speaker 01:
What we have is a footnote.

[00:27:05] Speaker 01:
And in a broad statement, a conclusory statement that she didn't consider them probative value, these are all, these are percipient witness affidavits.

[00:27:13] Speaker 01:
They were all there.

[00:27:14] Speaker 01:
These people were, and by the way Judge, there was a death connected with Legionella.

[00:27:19] Speaker 01:
All right, somebody died over this.

[00:27:21] Speaker 03:
But apparently,

[00:27:24] Speaker 03:
The Legionella issue wasn't raised before the OSC, and that's a jurisdictional requirement, isn't it?

[00:27:33] Speaker 01:
Well, I'm not aware that it wasn't raised.

[00:27:38] Speaker 01:
You know, we raised it.

[00:27:40] Speaker 03:
Well, that's what the AJ stated.

[00:27:43] Speaker 03:
And if it were not true, I would think you would have shown evidence that it was raised.

[00:27:50] Speaker 01:
Judge, let me just quote.

[00:27:52] Speaker 01:
from the decision.

[00:27:54] Speaker 01:
And I'm looking at appendix, page 7, halfway down the page.

[00:27:59] Speaker 01:
This is the AJ who wrote this.

[00:28:02] Speaker 01:
Based on the above, I find the appellant demonstrated that he exhausted his administrative remedies with OSC on the above disclosure.

[00:28:11] Speaker 03:
But the above disclosure was the skin rash, not Legionella.

[00:28:16] Speaker 01:
Judge, he was pulled off the case.

[00:28:20] Speaker 01:
He stopped.

[00:28:22] Speaker 01:
He reported what he knew at the time.

[00:28:24] Speaker 01:
There's no obligation that he can conclude a full investigation when he's told, don't do it anymore.

[00:28:30] Speaker 01:
You're a troublemaker.

[00:28:32] Speaker 01:
Get out of here.

[00:28:33] Speaker 01:
That's what happened.

[00:28:35] Speaker 01:
So how was he supposed to be able to conclude the investigation?

[00:28:39] Speaker 01:
In fact, there was a disclosure by the VA that the death was due to Legionella.

[00:28:50] Speaker 03:
Thank you, counsel.

[00:28:51] Speaker 03:
We have your case.

[00:28:52] Speaker 03:
We'll take the case.

[00:28:53] Speaker 01:
Thank you, Joe.

[00:28:58] Speaker 04:
All rise.