[00:00:00] Speaker 01:
McLean versus DHS.

[00:00:19] Speaker 01:
Mr. Dyer, whenever you're ready.

[00:00:54] Speaker 03:
May it please the court?

[00:00:56] Speaker 03:
My name is Thad Guyer for Mr. McLean.

[00:01:00] Speaker 03:
I'm from the Government Accountability Project in Washington, D.C.

[00:01:06] Speaker 03:
Your Honor, Mr. McLean.

[00:01:08] Speaker 03:
Nine years is how long Mr. McLean waited to be reinstated.

[00:01:16] Speaker 00:
Okay, let's get to the legal issue because we certainly know the facts.

[00:01:20] Speaker 00:
The legal issue in this case though has to do with whether or not

[00:01:24] Speaker 00:
He can get attorney's fees.

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And we have a decision, Phillips, which says he cannot under the facts of this case.

[00:01:30] Speaker 00:
Do you agree with that?

[00:01:33] Speaker 03:
Oh, absolutely.

[00:01:34] Speaker 03:
This is on 1037.

[00:01:37] Speaker 00:
So to be clear, this panel absolutely cannot give Mr. McClain the relief he seeks in this case.

[00:01:44] Speaker 00:
Is that correct?

[00:01:45] Speaker 00:
Absolutely correct.

[00:01:46] Speaker 00:
So the only way we can possibly decide this case would be to affirm it because we're bound by our existing precedent.

[00:01:51] Speaker 00:
And so your argument

[00:01:53] Speaker 00:
is really that the in-bank court should take this case and overturn Phillips.

[00:01:59] Speaker 03:
Yes.

[00:02:00] Speaker 00:
OK.

[00:02:01] Speaker 00:
All right.

[00:02:01] Speaker 00:
Go ahead.

[00:02:02] Speaker 00:
So tell us why you think Phillips should be overturned, understanding that we can't do that, the three of us.

[00:02:07] Speaker 01:
But haven't, isn't there an invalidation that didn't work out for you?

[00:02:10] Speaker 01:
But haven't we already decided that fairly recently?

[00:02:13] Speaker 01:
Denied, and that is denied re-hearing on bond on this precise question?

[00:02:17] Speaker 03:
Yes.

[00:02:19] Speaker 01:
It was not the precise question.

[00:02:20] Speaker 01:
So you just want to try it again?

[00:02:21] Speaker 03:
Well, it's not.

[00:02:22] Speaker 03:
It's not the precise question.

[00:02:25] Speaker 03:
They're distinct.

[00:02:28] Speaker 03:
And no one has argued that they're not distinct questions.

[00:02:30] Speaker 03:
The government has not argued that the previous case that already has been decided against us forecloses

[00:02:47] Speaker 00:
It certainly doesn't bode well for your likely success.

[00:02:50] Speaker 00:
Whether it precludes you from trying to make virtually the identical argument in yet another case just months after we rejected it is a different question from the likelihood of your ability to be successful on the issue.

[00:03:04] Speaker 03:
By definition, a whistleblower is highly unlikely to be successful in this court.

[00:03:09] Speaker 00:
And yet Mr. McLean was.

[00:03:11] Speaker 03:
And Mr. McLean was, he was successful.

[00:03:14] Speaker 00:
Both in this court and then in the Supreme Court.

[00:03:16] Speaker 03:
It was utterly remarkable.

[00:03:18] Speaker 03:
It was one of those incredibly rare.

[00:03:20] Speaker 00:
I didn't think it was remarkable.

[00:03:21] Speaker 00:
I wrote the opinion.

[00:03:22] Speaker 03:
Well, thank you very much.

[00:03:24] Speaker 03:
It was a very rare opinion, a very rare win.

[00:03:30] Speaker 03:
I don't know.

[00:03:30] Speaker 00:
We had one about two months ago in another case called Hanson, and we don't get that despite what you're seeing today.

[00:03:34] Speaker 00:
We don't get very many whistleblower cases.

[00:03:36] Speaker 00:
I mean, the fact that we have three on one panel is crazy because I don't think I've had three in the last five years.

[00:03:42] Speaker 00:
Yes.

[00:03:43] Speaker 01:
But how is this different from the earlier case?

[00:03:45] Speaker 01:
My understanding is what you're trying to say here is that the board ought to be able to award attorneys fees for the fees incurred before this court.

[00:03:54] Speaker 01:
We have not only fill-ups, but we have a rule 47 or whatever that says, no, no, no.

[00:04:00] Speaker 01:
For that portion of attorney's fees regarding this court, this court gets to reward or decide that.

[00:04:07] Speaker 01:
So what more is left to be said in that regard?

[00:04:13] Speaker 03:
Quite frankly, we've actually gone beyond where I thought we would.

[00:04:16] Speaker 03:
I didn't think we would even go this far.

[00:04:18] Speaker 02:
But the earlier proceeding, the January denial, simply said, you are out of time on requesting 47.7.

[00:04:27] Speaker 03:
Yes.

[00:04:27] Speaker 02:
That one, at least on its face, doesn't say, and this is the only possible means.

[00:04:33] Speaker 02:
That's what you're arguing.

[00:04:34] Speaker 02:
That's correct.

[00:04:38] Speaker 02:
In the ordinary course, we don't overturn panel decisions absent or go unbound to do that in the absence of special considerations.

[00:04:50] Speaker 02:
Since there is an available means, namely 47.7, if pursued timely, why would we go back and overturn Russell, a now, what, 20-year-old decision?

[00:05:06] Speaker 02:
I forget.

[00:05:06] Speaker 02:
It's been around for a long time.

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that right or wrong doesn't deprive of the ability to ask for fees if only it's done through this alternative means.

[00:05:19] Speaker 03:
Yes.

[00:05:20] Speaker 02:
And you're here in this case, as I think you were acknowledging with Judge Moore, giving us a kind of preview of what you would like the Amban Court to decide.

[00:05:32] Speaker 02:
I guess what I was just suggesting is that at least one aspect

[00:05:36] Speaker 02:
the preview would point against non-bond preview because you were not without means to seek fees, it's just that you weren't linked to doing so.

[00:05:47] Speaker 03:
Well, our argument, as we set out in the brief, is that this is a very unique approach that Rule 47 and that the Federal Circuit takes with respect to the awarding of attorney's fees.

[00:06:00] Speaker 03:
So the whistleblower law we do is all across the spectrum.

[00:06:04] Speaker 03:
MSPB is just one part of it.

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We do EEO cases.

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We do Department of Labor cases, OSHA cases, a variety of cases.

[00:06:13] Speaker 03:
And the universal rule that we have as the plaintiff's lawyer for whistleblower

[00:06:17] Speaker 03:
is that the court that is making the merits determination will set the fees for whatever forums were involved.

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And that will happen at the end of the case.

[00:06:29] Speaker 01:
So what is the point of that?

[00:06:31] Speaker 01:
I mean, that we're precluded from having our own rule based on our own experience, that somehow you didn't have the ability to... I mean, we're a different court.

[00:06:41] Speaker 01:
I presume you review our rules before you bring your case.

[00:06:44] Speaker 01:
So it wasn't prejudicial.

[00:06:46] Speaker 01:
Is your argument that it was prejudicial to counsel because it's not like the other rules?

[00:06:51] Speaker 01:
I don't understand.

[00:06:52] Speaker 03:
Yes, it is counterintuitive.

[00:06:58] Speaker 03:
And the rule 47.

[00:06:58] Speaker 01:
One could probably say that about a number of our rules, but that doesn't eliminate the obligation of the parties to follow them.

[00:07:05] Speaker 03:
Yes.

[00:07:06] Speaker 03:
No, I understand.

[00:07:08] Speaker 03:
Our argument is that the MSPB judge who makes the ruling on the merits of the case is the judge who ought to be making the determination for the attorney's fees at whatever level they took place.

[00:07:27] Speaker 01:
And that's a policy argument?

[00:07:29] Speaker 02:
Can I ask you one other question?

[00:07:30] Speaker 02:
The government argues that in order for you to get fees,

[00:07:36] Speaker 02:
Under the Backpay Act, you not only would have to get Russell over the world, but in fact, that wouldn't do it for you, because in their view, the Backpay Act is not applicable to a TSA employee.

[00:07:53] Speaker 02:
And they rely, as I'm remembering right, on the fact that the Backpay Act is not applicable to FAA employees by virtue of the

[00:08:03] Speaker 02:
general congressional removal of FAA employees from the Title V regime in 49 USC.

[00:08:11] Speaker 02:
And then in November of 2001 when TSA was created, the statute says 49 USC 114N.

[00:08:22] Speaker 02:
Basically, the TSA shall set up a personnel system like the FAA one.

[00:08:30] Speaker 02:
Those two things together mean that the back pay act, which is not preserved in the FAA regime, is also not preserved for TSA employees.

[00:08:41] Speaker 03:
Yes, that's the government's argument and as the government pointed out in their brief in the footnote setting for what argument we had raised and what this was argued, this was at least briefed in the older case that was

[00:09:02] Speaker 03:
decided, but that argument was not broadened, was not dispositive in the case, is that the statute at question says unless there is an exception, then FAA, TSA will not be subject to the back pay act, to this provision of it.

[00:09:23] Speaker 03:
But exception number one is the Whistleblower Protection Act, which is 5 U.S.C.

[00:09:28] Speaker 03:
2302B.

[00:09:30] Speaker 03:
And as you know, 52323B is essentially, it sets forth what the standard is for a prohibited personnel practice.

[00:09:47] Speaker 03:
That statute then is used in a variety of ways.

[00:09:51] Speaker 03:
It can be used as an individual right of action under 1221.

[00:09:57] Speaker 03:
But it can also be used as an affirmative defense to a removal action.

[00:10:05] Speaker 03:
But how does that get you to the Back Pay Act, which is not 2302, but 5596?

[00:10:13] Speaker 03:
Well, our position is that, as we've argued previously, it hasn't been resolved by the court, is that that exception is an exception for anything having to do with enforcement of 23-02-8.

[00:10:31] Speaker 03:
So that's our argument.

[00:10:39] Speaker 01:
Okay, why don't we hear from the government and then we'll say your turn.

[00:10:53] Speaker 02:
Please the court of course your firm the MSP's decision.

[00:10:56] Speaker 00:
Well, he agrees.

[00:10:58] Speaker 00:
We have to affirm the MSPB's decision on attorney's fees.

[00:11:01] Speaker 00:
He agrees that a panel can't overrule Phillips or the rule that we have, and therefore this panel can't do anything other than affirm at this point in time.

[00:11:12] Speaker 00:
So I don't know what you really need to say.

[00:11:14] Speaker 00:
Do you really have much you want to say?

[00:11:16] Speaker 00:
I don't.

[00:11:17] Speaker 00:
Then you should just sit back down.

[00:11:18] Speaker 02:
Thank you, Your Honor.

[00:11:19] Speaker 02:
Unless you have any questions on the attorney's fee decision.

[00:11:24] Speaker 01:
But you'll be back in a minute, so don't worry.

[00:11:27] Speaker 01:
We'll have you a chance.

[00:11:28] Speaker 01:
Anything else?

[00:11:30] Speaker 01:
No, nothing else.

[00:11:31] Speaker 01:
OK, thanks.

[00:11:32] Speaker 01:
Sides and this case is submitted.

[00:11:34] Speaker 01:
The next case.