[00:00:00] Speaker 05:
Stay where you are is 181068 McLean versus DHS.

[00:00:03] Speaker 05:
Mr. Geiger.

[00:00:15] Speaker 04:
Your honor, the

[00:00:18] Speaker 04:
It took nine years for Mr. McLean to get it.

[00:00:21] Speaker 01:
You're going to start with the nine years again?

[00:00:23] Speaker 01:
That was the opening line of the last story.

[00:00:25] Speaker 01:
No, no, no.

[00:00:26] Speaker 05:
I'm going to start with nine.

[00:00:28] Speaker 05:
Let me just see.

[00:00:28] Speaker 05:
There were so many issues below, it was hard to read the papers.

[00:00:31] Speaker 05:
But what I understand we're here on appeal about is that your client got nine years worth of back pay

[00:00:38] Speaker 05:
But he's seeking $104,000 for certain medical expenses.

[00:00:43] Speaker 05:
And he's seeking a retroactive promotion so that whatever he got after nine years of back pay would be up by the promotion.

[00:00:51] Speaker 05:
Are those the two issues we're reviewing here?

[00:00:54] Speaker 04:
Yes.

[00:00:55] Speaker 05:
OK.

[00:00:57] Speaker 05:
What's troubling to me and really unusual is

[00:01:00] Speaker 05:
It seems like your view is that with respect to consequential damages, your client just has to come in and said, over these nine years, I spent $104,000 on medical issues relating to my discharge.

[00:01:16] Speaker 05:
End of story.

[00:01:18] Speaker 05:
And the government wants receipts.

[00:01:21] Speaker 05:
I mean, any medical claim you put in, anything you claim for insurance, you have to show your receipt.

[00:01:26] Speaker 05:
Are they asking for anything more than that?

[00:01:28] Speaker 05:
Or maybe information from the doctor about the purpose of those expenses that they can assess, whether they were related?

[00:01:35] Speaker 05:
What is unreasonable or unusual about the government's position?

[00:01:40] Speaker 04:
Well, there's nothing unreasonable about the government wanting receipts.

[00:01:44] Speaker 04:
And the government does not dispute that.

[00:01:47] Speaker 04:
In fact, Mr. McClain gave the receipts to the government as part of the compliance.

[00:01:53] Speaker 04:
All of those were sent.

[00:01:56] Speaker 04:
That's not even.

[00:01:59] Speaker 01:
But the problem is they weren't put in evidence, right?

[00:02:01] Speaker 01:
So if I get into an argument with my neighbor and I give him a receipt,

[00:02:07] Speaker 01:
But then we end up in court, and neither he nor I produced the receipt as part of the proceeding.

[00:02:12] Speaker 01:
There's no evidence.

[00:02:14] Speaker 01:
And that's your problem here.

[00:02:15] Speaker 01:
Your problem is, yeah, Mr. McLean only produced an email that showed there was an attachment, which presumably is a receipt.

[00:02:22] Speaker 01:
But that's not the receipt for the court to look at.

[00:02:25] Speaker 01:
You may have given them to the government, but you didn't enter them into evidence.

[00:02:29] Speaker 01:
The government didn't enter them into evidence.

[00:02:31] Speaker 01:
So what did the MSPB do wrong when it said, it's your obligation

[00:02:35] Speaker 01:
to prove your damages.

[00:02:38] Speaker 01:
And you didn't give us any receipts at all of any kind for a single one of the medical expenses.

[00:02:44] Speaker 04:
Because the statute doesn't require receipts.

[00:02:46] Speaker 01:
No, the statute doesn't, but common sense does.

[00:02:49] Speaker 01:
I mean, you don't think it's fair when someone is alleging entitlement to damages to make them put in evidence that they actually had those damages?

[00:02:58] Speaker 04:
I think if it's a disputed issue, but it wasn't a disputed issue.

[00:03:03] Speaker 04:
That wasn't the government's position.

[00:03:04] Speaker 05:
Are you suggesting he doesn't have to make any kind of a showing that a person, I'm not suggesting your client, but some person come in and said, I spent $500,000 on medical bills.

[00:03:16] Speaker 05:
And that's all he has to show?

[00:03:18] Speaker 05:
What does the burden shift to the other side to have to show that he didn't?

[00:03:21] Speaker 05:
How can that possibly be?

[00:03:23] Speaker 04:
Well, he submitted declarations in which he specifically listed out exactly what he spent, where, and when.

[00:03:33] Speaker 05:
But why wouldn't he have provided the receipts?

[00:03:37] Speaker 03:
It's not in the record, Your Honor.

[00:03:40] Speaker 03:
It's not in the record, is it?

[00:03:42] Speaker 03:
as to why that did not happen.

[00:03:44] Speaker 05:
Well, he didn't come in and say, I can't get them.

[00:03:46] Speaker 05:
I don't have access to them.

[00:03:48] Speaker 05:
It would be too cumbersome for me to try to do this.

[00:03:50] Speaker 05:
None of that, right?

[00:03:51] Speaker 05:
He knew the receipts were needed, were required.

[00:03:55] Speaker 05:
Or at least that some people thought they were required, like the administrative judge.

[00:04:00] Speaker 04:
Correct.

[00:04:02] Speaker 01:
I review the decision below for an abuse of discretion.

[00:04:05] Speaker 01:
So in order for you to prevail on this issue, I have to conclude

[00:04:10] Speaker 01:
that the MSPB abused discretion when it said that you had not proven entitlement to those damages.

[00:04:18] Speaker 01:
Is that right?

[00:04:19] Speaker 04:
Yes.

[00:04:20] Speaker 01:
So how is it they abused their discretion in the absence of any corroboration of medical expenses of any kind?

[00:04:28] Speaker 04:
Because Mr. McLean put in detailed sworn evidence as to what he had spent on each of these, it's an extensive set of declarations.

[00:04:41] Speaker 01:
So do you think their error is one of law or fact?

[00:04:44] Speaker 04:
One of law.

[00:04:45] Speaker 04:
I don't think that an administrative law judge, when the government is not contesting the expenditures, can just say, well, I simply won't accept the evidence that you put in, even though it's cognizable

[00:04:57] Speaker 04:
cogent evidence just because the receipts are missing.

[00:05:04] Speaker 04:
What the government had done was to basically say is that none of these are reimbursable.

[00:05:17] Speaker 04:
That he made an election with respect to insurance and chose that he wasn't going to have the insurance cover these.

[00:05:27] Speaker 04:
And the administrative law judge disagreed.

[00:05:30] Speaker 04:
correctly disagree and said, no, government, you're wrong.

[00:05:35] Speaker 04:
But because the government had relied on that, the government had not put into the record with the judge specific disputes or challenges or claims against what Mr. McLean's declarations had said.

[00:05:58] Speaker 02:
Declarations are not enough.

[00:06:02] Speaker 02:
He needs documentary evidence.

[00:06:04] Speaker 02:
And in the absence of that, you must deny that.

[00:06:07] Speaker 04:
I don't think so.

[00:06:08] Speaker 01:
Really?

[00:06:09] Speaker 01:
Because on page, red brief, page 23 to 24, it seems to me the government is arguing that Mr. McClain's proof consisted of his own self-serving statements.

[00:06:18] Speaker 01:
Even after the AJ informed him, he has to submit proof of his pecuniary damages.

[00:06:23] Speaker 04:
In this court.

[00:06:24] Speaker 04:
I understood the judge's opinion.

[00:06:26] Speaker 04:
the question to have been whether in front of the administrative law judge the government had made that argument.

[00:06:32] Speaker 04:
I agree that the government has made the argument.

[00:06:33] Speaker 01:
Why would they have to make the argument if the AJ had already informed him that his own self-serving statement, which is the language the AJ used, wouldn't suffice?

[00:06:44] Speaker 01:
He had to actually submit proof.

[00:06:46] Speaker 01:
Why would the government have to say, yeah, double down on that?

[00:06:50] Speaker 01:
that AJ had already made a statement of what the standard of proof would be, why would the government need to come in behind that and say, we agree?

[00:06:57] Speaker 04:
Because the government already had all the receipts.

[00:07:01] Speaker 01:
But they weren't, again, this goes back to whether I hand my neighbor a receipt or if it's entered into a court case.

[00:07:06] Speaker 04:
You know, it's... Well, you would expect the government to say, no, we don't have any such receipts.

[00:07:12] Speaker 04:
We never received any such receipts.

[00:07:15] Speaker 04:
That's not what... The government was in a position of, you have a compliance order of basically saying,

[00:07:20] Speaker 04:
is demurring that we have the receipts, but we're not going to pay.

[00:07:26] Speaker 04:
And because Mr. McLean did not present the receipts with those declarations, therefore it could all just be disregarded.

[00:07:34] Speaker 01:
And I just want to be clear about one thing.

[00:07:36] Speaker 01:
Just because the lower court says you didn't meet your burden of proof doesn't mean that they found

[00:07:42] Speaker 01:
Mr. McClain, incredible or not credible.

[00:07:45] Speaker 01:
You know, they just said, it's not enough for somebody to just assert this themselves.

[00:07:50] Speaker 01:
They have to introduce the underlying proof to substantiate it.

[00:07:54] Speaker 01:
I just want to say, since your client is here, I want him to know that none of this dialogue, nor do I understand the lower court, to have found that he was not credible with regard to his claims.

[00:08:06] Speaker 01:
It's just that in a court of law, there are certain issues for which there has to be certain kinds of proof.

[00:08:13] Speaker 05:
I guess.

[00:08:14] Speaker 01:
That was a statement, not a question.

[00:08:16] Speaker 05:
Maybe I missed something.

[00:08:17] Speaker 05:
In the AJ's decision, she says, to the extent the appellant may have been confused about the required documentation, he failed to submit further evidence of his expenses despite the November 30th, 2016 order requiring him to do so.

[00:08:31] Speaker 05:
So the AJ actually ordered him to provide the information and he did not comply with the order?

[00:08:36] Speaker 04:
He was told to provide with information that he had.

[00:08:40] Speaker 04:
He presented the declarations and the listings and the proof that he has provided this already to the government.

[00:08:46] Speaker 04:
And the record does not indicate why the actual receipts themselves were not presented.

[00:08:53] Speaker 05:
Why don't we move on to what you described as your second issue, which is whether or not he was entitled to retroactive promotion.

[00:09:01] Speaker 04:
Yes, Your Honor.

[00:09:02] Speaker 04:
That's what we actually view as the primary issue.

[00:09:06] Speaker 04:
That was the main thing that I wanted to be able.

[00:09:10] Speaker 05:
Is this a legal fight you have or a factual fight?

[00:09:15] Speaker 05:
Because is it on the legal standard that's applied in terms of what the burden is on promotions?

[00:09:21] Speaker 04:
It's strictly a legal standard, although obviously there has to be facts involved.

[00:09:30] Speaker 04:
The primary facts involved are that

[00:09:34] Speaker 05:
Let me ask you about the legal question.

[00:09:36] Speaker 05:
Is the legal question that we, the state of the law, I think now, and our friend can correct me, is that a lot of promotions in the federal government are automatic.

[00:09:48] Speaker 05:
Step increases and that sort of thing.

[00:09:50] Speaker 05:
If you're a GS11, you move up automatically either to your GS14.

[00:09:54] Speaker 05:
This was not that case.

[00:09:56] Speaker 05:
So our court has said, has it not, that yes, if it were an automatic promotion that was non-competitive, then person under the Backpay Act gets that retroactive promotion.

[00:10:07] Speaker 05:
But in times when it's competitive, it's not automatic that he would get the promotion, right?

[00:10:12] Speaker 05:
Correct.

[00:10:12] Speaker 05:
And then it becomes a question of

[00:10:15] Speaker 05:
fact or circumstances, right?

[00:10:18] Speaker 05:
And in this case, the government put on a lot of evidence.

[00:10:21] Speaker 05:
It was numerical.

[00:10:22] Speaker 05:
It was statistical.

[00:10:23] Speaker 05:
Only 11% of people got it this circumstance.

[00:10:25] Speaker 05:
I mean, it was that the large number of people did not get a promotion that was similarly situated to your client.

[00:10:34] Speaker 05:
So what is your argument to us?

[00:10:36] Speaker 05:
Is it that our legal standard is wrong, or is that the facts were wrong?

[00:10:40] Speaker 04:
The legal standard that has been evolved in non-whistleblower cases has been applied here in this whistleblower case.

[00:10:53] Speaker 04:
Our view on this is that it attracts Judge Newman's dissent, and this is in the brief, in Carson v. Department of Energy.

[00:11:05] Speaker 04:
in the federal circuit.

[00:11:06] Speaker 05:
Well, if you're relying on a dissent in a case as your legal support, then we're probably in unlock territory as we were in the previous case, right?

[00:11:15] Speaker 04:
I think that we probably are.

[00:11:17] Speaker 04:
That's certainly the way that I look at this.

[00:11:20] Speaker 05:
The only... Well, would you have our standard be that it's automatic for whistleblowers to get promotions even though those promotions for that individual in that position is competitive?

[00:11:30] Speaker 04:
I would have the standard be that the burden of proof is on the government to show that so long as the whistleblower is able to meet a burden going forward, that some number of people in his situation were in fact promoted.

[00:11:49] Speaker 04:
In this case, as you pointed out, 12% went from the I-Ban

[00:11:56] Speaker 04:
to the to the J-Ban 41.7 percent and this by the way is a typo and I've notified council but this is obvious it's a typo 41.7 percent of the of the air marshals did in fact receive promotions 31 percent of the marshals received more than one promotion

[00:12:19] Speaker 05:
So tell me again what your standard would be.

[00:12:22] Speaker 05:
If any of them did, if a substantial portion of them did, what's the legal standard?

[00:12:28] Speaker 04:
The legal standard would be the statute.

[00:12:34] Speaker 04:
And the statute only provides for two burdens of proof.

[00:12:40] Speaker 04:
One is called preponderance of the evidence, and the other is called clear and convincing evidence.

[00:12:44] Speaker 05:
Well, why would this even under

[00:12:46] Speaker 05:
under preponderance of evidence, is it your position that this wouldn't come out the same way under preponderance of evidence if they could show that well over 50% of the person similarly situated did not get a promotion and people that were in his area, et cetera, did not get a promotion or a very small percentage did?

[00:13:04] Speaker 05:
Why would that not satisfy preponderance?

[00:13:10] Speaker 04:
for us to satisfy the proponents, I think that it's the same as any other kind of a promotion case, is the employee who's been the victim of retaliation, or a prohibited personnel practice, has the burden of pointing out that there were at least some other non-whistler blowers who received... Oh, and you're saying that his burden should not be clear and convincing evidence?

[00:13:34] Speaker 01:
No, I think he's saying he shouldn't have the burden at all.

[00:13:36] Speaker 01:
The burden should be on the government to disprove.

[00:13:38] Speaker 04:
He should have the burden of going forward of showing that the retaliation was a contributing factor.

[00:13:45] Speaker 04:
We should be tracking the whistleblower statue.

[00:13:48] Speaker 04:
Instead what's happened with the court is the court is tracking Vietnam era court of claims case

[00:13:58] Speaker 04:
and in which that's power versus US.

[00:14:05] Speaker 04:
It's all through both of the briefs.

[00:14:08] Speaker 04:
And then this court's Bessie versus Department of Air Force in 1986 and Naquil versus Department of Transportation in 1988, both trapped with that.

[00:14:19] Speaker 04:
But they're not whistleblower cases.

[00:14:20] Speaker 04:
So they're not affected by the whistleblower statute or the whistleblower policy, which, by the way, is, of course, what Judge Newman was trying to point out, is that you have to look at what the statute is.

[00:14:34] Speaker 04:
The statute is a whistleblower protects the statute.

[00:14:37] Speaker 05:
The statute doesn't speak to this issue, does it?

[00:14:39] Speaker 04:
The statute speaks to a burden of proof in which if the whistleblower shows that the adverse action was that animus was a contributing factor.

[00:14:52] Speaker 04:
That's all he has to show.

[00:14:53] Speaker 04:
It's an extremely low burden.

[00:14:55] Speaker 04:
Then the burden shifts to the government to show that adverse action, in fact, wouldn't have been taken

[00:15:01] Speaker 04:
by clearing from Dinsie Avenue.

[00:15:03] Speaker 05:
Yeah, that's the standard you won your case at the Supreme Court on.

[00:15:07] Speaker 04:
Right.

[00:15:07] Speaker 05:
That was correctly applied in this case, was it not?

[00:15:10] Speaker 04:
It was correctly applied at that level.

[00:15:13] Speaker 04:
But of course that was, as you know, that was a remit.

[00:15:17] Speaker 04:
So the Power case from 1979, that introduced this, but essentially the ALJ aside, which is this

[00:15:29] Speaker 04:
clearly established entitlement, clearly established entitlement to the promotion.

[00:15:36] Speaker 04:
And that came out of an OPM rate.

[00:15:39] Speaker 04:
If you go back and read Bowers, I mean, that's where it comes from.

[00:15:42] Speaker 04:
It doesn't come out of the whistleblower law.

[00:15:45] Speaker 04:
It doesn't come out of a whistleblower protection statute.

[00:15:47] Speaker 04:
This is an old phrase that came as a legal requirement.

[00:15:52] Speaker 04:
So you have to show an executive order.

[00:15:55] Speaker 04:
You have to show a regulation.

[00:15:56] Speaker 04:
You have to show

[00:15:57] Speaker 04:
a statute that clearly establishes that legal entitlement.

[00:16:03] Speaker 04:
And then that morphed over by some earlier cases from this court in which it became a factual standard without any discussion over the fact.

[00:16:14] Speaker 04:
So what our argument here is that we need to track the statute.

[00:16:19] Speaker 04:
And what we have here is administrative law judgment,

[00:16:24] Speaker 04:
who didn't in any way consider any of the evidence that was presented by Mr. McLean, that he applied for these positions and his declarations he would have gotten, that he was rejected from this position, that these other employees got those.

[00:16:43] Speaker 04:
The ALJ just said, I'm not going to deal with any of that because we have this clearly established standard

[00:16:49] Speaker 04:
that comes from the Vietnam, literally from the Vietnam War case.

[00:16:55] Speaker 05:
Thank you.

[00:16:56] Speaker 05:
We'll restore two minutes of your time.

[00:16:58] Speaker 05:
Let's hear from the government.

[00:17:02] Speaker 05:
OK, now you actually get to speak.

[00:17:04] Speaker 00:
Thank you.

[00:17:05] Speaker 00:
Unless your honors have a preference, I'll start with the constitutional damages for Mr. McClain, the attorney that started.

[00:17:11] Speaker 00:
This constitutional damages issue is really about the ability of an administrative judge to control his or her docket.

[00:17:17] Speaker 00:
And to expect that a litigant will provide evidence when instructed to do so.

[00:17:22] Speaker 00:
The administrative judge issued an order on November 30th, 2016, telling Mr. McClain to provide objective documentation.

[00:17:29] Speaker 01:
Do we have that order in the record?

[00:17:31] Speaker 00:
It is at 1074, Your Honor.

[00:17:33] Speaker 00:
Or the page where he provides instructions at 1074, Your Honor.

[00:17:38] Speaker 05:
And he did not respond or did not respond with the adequate documentation?

[00:17:43] Speaker 00:
Excuse me, Your Honor, he did not provide sufficient documentation.

[00:17:47] Speaker 00:
Mr. McLean, over the course of a year, provided a lot of irrelevant submissions, a lot of declarations by Mr. McLean himself.

[00:17:57] Speaker 00:
But Mr. McLean was represented by counsel below.

[00:18:00] Speaker 00:
And Mr. McLean's counsel should have provided sufficient evidence of constitutional damages.

[00:18:06] Speaker 02:
close the loop on one issue that we were discussing before.

[00:18:11] Speaker 02:
Am I reading correctly on page 585 of the appendix?

[00:18:15] Speaker 02:
This is your March 3rd, 2016, I think, opposition to the petition for enforcement, where you say that a parent failed to submit any evidentiary proof of having incurred the expenses.

[00:18:31] Speaker 00:
The March 23rd response.

[00:18:33] Speaker 00:
Mr. McClain's counsel,

[00:18:37] Speaker 00:
said we didn't contest constitutional damages.

[00:18:39] Speaker 00:
That's not an accurate record.

[00:18:41] Speaker 00:
That's not accurate.

[00:18:42] Speaker 00:
Just based on the appendix citation alone that shows that we actually did contest constitutional damages.

[00:18:47] Speaker 02:
Six months or eight months later, the administrative judge said,

[00:18:53] Speaker 02:
I need more documentation.

[00:18:55] Speaker 02:
Yes, Your Honor.

[00:18:56] Speaker 02:
And no further documentation of this Fourth County.

[00:18:58] Speaker 00:
He provided, Mr. Rolain made a number of submissions to the Minister of Judges.

[00:19:03] Speaker 00:
He did not provide the receipts or the medical evidence that would connect the removal.

[00:19:08] Speaker 01:
Hold on.

[00:19:08] Speaker 01:
I just want to understand.

[00:19:09] Speaker 01:
Judge Toronto is pointing us to 584, 585, 586, that section.

[00:19:14] Speaker 01:
I understood you in these arguments to be contesting whether or not the medical costs were reasonable and foreseeable, namely whether they are linked to, whether the various medical and dental expenses are linked to the agency's decision to remove him.

[00:19:30] Speaker 01:
I guess I didn't, and did you also

[00:19:33] Speaker 01:
argue, and if so precisely where, that he hasn't even proven the existence of these medical expenses, which I think is the colloquy we were having.

[00:19:46] Speaker 01:
Because you said counsel's argument wasn't correct that we did dispute.

[00:19:49] Speaker 01:
What he says you didn't dispute is that he incurred $104,000 of medical expenses.

[00:19:53] Speaker 01:
In fact, he gave the agencies all the documents.

[00:19:57] Speaker 01:
Did you, in this document or any other, dispute

[00:20:01] Speaker 01:
whether he had established $104,000 of medical expenses.

[00:20:04] Speaker 01:
I understand you two have disputed whether he proved that they were reasonable, whether he proved that they were foreseeable in light of the whistleblower action, but I don't see precisely where you argued they weren't incurred.

[00:20:17] Speaker 00:
I'll point, Your Honor, to page 585.

[00:20:22] Speaker 00:
Second full paragraph down, the appellant failed to submit any evidence or proof of having incurred the expenses.

[00:20:27] Speaker 00:
Before that, the agency's removal action caused injury in the first instance.

[00:20:35] Speaker 00:
So we didn't concede below that he incurred over $100,000 in long term.

[00:20:39] Speaker 00:
I see.

[00:20:39] Speaker 01:
The sentence before that is, he failed to submit any evidence supporting the finding that were attributable to the agency's removal action, but that you're right.

[00:20:48] Speaker 01:
The next sentence seems to be.

[00:20:50] Speaker 02:
The first half seems to be this point.

[00:20:53] Speaker 01:
Right, right, right, right.

[00:20:54] Speaker 01:
Well, in a single sentence.

[00:20:56] Speaker 01:
That seems to be the only sentence, because then the very next sentence jumps back to the first half again.

[00:21:00] Speaker 01:
So that sentence seems like a little island amidst an argument about reasonable and foreseeable throughout.

[00:21:05] Speaker 01:
But I see the sentence, and I see the footnote that says, the appellant provided the agency a receipt from dental office visit, prior to his removal fails to explain how that could be related.

[00:21:17] Speaker 01:
I don't know.

[00:21:18] Speaker 01:
I see the sentence.

[00:21:20] Speaker 00:
Standing here today, I can't tell you whether Mr. McClain, I'm sure, well, I shouldn't say that.

[00:21:25] Speaker 00:
We didn't concede that he incurred over $100,000.

[00:21:28] Speaker 00:
Whether Mr. McClain incurred, he incurred insurance premiums.

[00:21:32] Speaker 00:
We didn't dispute that he incurred.

[00:21:34] Speaker 01:
Well, in fact, I mean, you clearly dispute in quit note two, one of the expenses he submitted a receipt for, because you say this expense occurred prior to him ever being removed.

[00:21:42] Speaker 00:
So some of the 100 plus thousand were disputed.

[00:21:45] Speaker 00:
I don't know that we dispute.

[00:21:46] Speaker 00:
But the A.J.

[00:21:49] Speaker 01:
clearly on 1074 though demanded that he submit proof of the pecuniary damages and that that proof be objectively documented.

[00:21:59] Speaker 01:
Is that correct?

[00:22:00] Speaker 01:
So he was ordered by a court

[00:22:02] Speaker 01:
to provide objective documentation, and then he did not follow that order.

[00:22:08] Speaker 00:
He provided a number of filings, but he did not provide, in our view, sufficient evidence.

[00:22:13] Speaker 00:
His receipts, for example?

[00:22:14] Speaker 01:
No, but did he prove objective documentation?

[00:22:18] Speaker 01:
Objective documentation seems like your own list of, I incurred the following expenses.

[00:22:23] Speaker 01:
doesn't seem to be objective documentation.

[00:22:25] Speaker 00:
That is our view, Your Honor, and he had the opportunity to do so.

[00:22:29] Speaker 00:
In this court's decision, in Bohawk's 2001 decision regarding consequential damages, it makes clear that this provision of consequential damages is about reimbursement of out-of-pocket costs.

[00:22:40] Speaker 00:
So you would expect, and the administrative judge expected, that there would be objective documentation.

[00:22:45] Speaker 00:
There would be receipts.

[00:22:46] Speaker 00:
Or if he was claiming that an expense was related to the removal for medical reasons, that there would be medical evidence, like doctor's notes, connecting those.

[00:22:55] Speaker 00:
Mr. McClain didn't provide sufficient evidence of consequential damages.

[00:23:00] Speaker 00:
And he was represented by counsel below.

[00:23:03] Speaker 00:
I know that Mr. McClain has argued that there would

[00:23:06] Speaker 00:
should be some sort of remand for further factual development.

[00:23:09] Speaker 01:
Do you think that this VJ is adopting a rule of law that absent receipts you can never find the establishment of consequential damages?

[00:23:19] Speaker 00:
No, I think the administrative judge laid out the correct standard of what consequential damages are and the burden of proof and found that there had been a failure to meet that burden.

[00:23:28] Speaker 00:
The administrative judge didn't come up with a rule of law in all future cases.

[00:23:33] Speaker 01:
Then let's along those lines that seems like a good segue into the J band I band issue Do you think the lower court?

[00:23:43] Speaker 01:
Laid out the exactly right standard there when they said reasonable certainty a reasonable certainty your honor was

[00:23:50] Speaker 00:
with respect to consequential damages.

[00:23:53] Speaker 01:
You're exactly right.

[00:23:54] Speaker 01:
Do you think that's the right standard, reasonable certainty?

[00:23:59] Speaker 00:
In the context of the Pastor case, which was the MSPB decision that was cited by the Administrative Judge, reasonable certainty was in

[00:24:07] Speaker 00:
was with respect to proving medical costs incurred.

[00:24:11] Speaker 00:
And in the past, the question was whether can you recover for medical costs you actually have not incurred, but you will incur in the future.

[00:24:18] Speaker 00:
And pastors said you can.

[00:24:19] Speaker 00:
And in doing so, it made clear that those damages had to be proved with reasonable certainty.

[00:24:27] Speaker 00:
So I don't think that the administrative judge was holding Mr. McClain to some clear inventing or some higher standard than just the typical MSPB proceeding.

[00:24:36] Speaker 00:
On the I-Ban to the J-Ban issue, this court has been clear in a long line of cases, going back to CARE and BOA, BOESE and NACL, that the obligation of the agency is to restore the employee to the status quo.

[00:24:56] Speaker 00:
And that's what happened here.

[00:24:57] Speaker 00:
Mr. McClain was restored to his Federal Air Marshal position in the I-Ban.

[00:25:03] Speaker 00:
There is no automatic

[00:25:05] Speaker 01:
And he would have received at least nine years worth of back pay.

[00:25:08] Speaker 01:
And does he also receive interest on the back pay?

[00:25:10] Speaker 00:
Your Honor, yes, I think he received around $800,000.

[00:25:13] Speaker 00:
There's some subtraction for money he made in that period.

[00:25:18] Speaker 00:
But yes, he received a substantial back pay award, at least $800,000.

[00:25:22] Speaker 00:
It included interest.

[00:25:24] Speaker 01:
And he did get attorney's fees in the other forums.

[00:25:29] Speaker 01:
but not attorney's fees for the attorney work that was performed in this particular case.

[00:25:33] Speaker 00:
That's correct, Your Honor.

[00:25:34] Speaker 05:
So where do we draw the line here?

[00:25:36] Speaker 05:
What if historical information, the historical data indicated that 50% of the people similarly situated to Mr. McLean could see it would be seen to promotion in a certain time frame?

[00:25:49] Speaker 00:
The promotion mandate very low.

[00:25:50] Speaker 00:
So then you would look at whether some other way he clearly established that he would have been promoted.

[00:25:55] Speaker 00:
That 50% would not satisfy.

[00:25:57] Speaker 01:
Wait, does he have to clearly establish it?

[00:25:59] Speaker 00:
Is the standard preponderance of evidence or clearly?

[00:26:10] Speaker 00:
clear establishment.

[00:26:12] Speaker 00:
Sometimes I think you see in decisions clear entitlement.

[00:26:16] Speaker 00:
The principle behind this standard is that... But what is clear establishment?

[00:26:20] Speaker 05:
Even if 70% of the people similarly situated got a promotion, that wouldn't satisfy that he clearly established that he would have been in that 70% versus that 30%.

[00:26:30] Speaker 00:
Your Honor, it wouldn't.

[00:26:32] Speaker 00:
He would have to clearly establish that he would have received a promotion.

[00:26:35] Speaker 00:
How does one do that?

[00:26:36] Speaker 00:
If, for example,

[00:26:39] Speaker 00:
Well, in the case of NACL, which is an MSP, then Federal Circuit Decision, and in Rickles, there was allegations that promotions were actually group team.

[00:26:49] Speaker 00:
It was an up or out type of policy.

[00:26:51] Speaker 05:
Okay, but we're in a different universe.

[00:26:53] Speaker 05:
We're talking about competitive promotions.

[00:26:55] Speaker 05:
And if he could show that all of the other people similarly situated with his identical credentials,

[00:27:01] Speaker 05:
got 70% of those people got promoted within this five-year time frame.

[00:27:06] Speaker 05:
If that's still not enough, would he have to show that 100%?

[00:27:09] Speaker 05:
Would he have to then inspect who got the position and show that he was more qualified than that person?

[00:27:15] Speaker 00:
How does one go about doing that?

[00:27:16] Speaker 00:
That's what Judge Newman in the dissent that Mitch McConnell counseled.

[00:27:21] Speaker 00:
pointed out.

[00:27:23] Speaker 00:
We're in en banc territory as Mr. MacLennan's counsel conceded with this.

[00:27:28] Speaker 00:
It is not the agency's obligation to go through every single promotion opportunity.

[00:27:33] Speaker 05:
No, but I'm just trying to find out what you think the standard as applied clearly established would require the appellant to do.

[00:27:40] Speaker 00:
I don't think it's necessarily a statistical evidentiary issue every time.

[00:27:46] Speaker 00:
You wouldn't go through and look at it.

[00:27:47] Speaker 00:
This was just one piece of the evidence.

[00:27:49] Speaker 05:
So is it

[00:27:50] Speaker 05:
sort of like he has to find the promotions and get all the credentials for everybody or the person that was selected and demonstrate that he was more qualified than that person?

[00:28:01] Speaker 00:
I don't know.

[00:28:02] Speaker 00:
Yes, that would be, if there was a promotion opportunity and there were two other people that applied and he clearly would have received the promotion, I'm not conceding that that would definitely satisfy the standard.

[00:28:15] Speaker 05:
Well, what if his credentials were identical to the person that got it?

[00:28:18] Speaker 05:
If they were identical, that would have been enough under clearly established, right?

[00:28:23] Speaker 00:
If all else were equal, it would be very difficult.

[00:28:27] Speaker 00:
I'm not arguing that you can never show clear establishment in a competitive scenario.

[00:28:32] Speaker 01:
Here's what I don't understand.

[00:28:34] Speaker 01:
We don't even get to this point until we have an actual whistleblower.

[00:28:39] Speaker 01:
We have a government employee that reported a serious risk to public health or danger to the public and was fired as a result of it.

[00:28:47] Speaker 01:
Why in the world are we not bending over backwards to help that employee?

[00:28:53] Speaker 01:
Why are we setting up?

[00:28:54] Speaker 01:
Why do we have a standard that requires he proved with reasonable certainty or clearly established or whatever the language you're using is?

[00:29:02] Speaker 01:
Why do we have such a high burden for someone who has been injured, who has been definitively found by a court to have been injured in an improper way when they were trying to stand up and save people from public risk or danger?

[00:29:15] Speaker 01:
Why in the world would we have a, that person has to clearly establish entitlement to a promotion in order to say retroactively they would have gotten it?

[00:29:24] Speaker 01:
That seems like a high standard given the general circumstances.

[00:29:28] Speaker 00:
John, Mr. McClain brought an adverse action appeal, a removal, challenging his removal.

[00:29:33] Speaker 00:
He didn't bring an individual right of action.

[00:29:35] Speaker 00:
His affirmative, one of his affirmative sentences was Flood Protection Act.

[00:29:38] Speaker 00:
Under the law and adverse action appeals, what the employee gets upon reinstatement is the status quo, as if the removal hadn't happened.

[00:29:48] Speaker 01:
He gets the status quo.

[00:29:49] Speaker 01:
I get that.

[00:29:50] Speaker 01:
But Judge Prost is giving you a scenario.

[00:29:51] Speaker 01:
What if all 70% of all people in his exact situation would have gotten a promotion?

[00:29:56] Speaker 01:
You're saying that might not be enough to meet his clearly establishing that he would have gotten the promotion standard.

[00:30:04] Speaker 01:
And I'm saying, I think there's a problem with the clearly established thing, if that's the case,

[00:30:08] Speaker 01:
especially given what we're trying to do here, which is to take someone who was harmed by our government for trying to do the right thing and put them back in the position they would have been in absent that.

[00:30:18] Speaker 00:
A couple of points in response, Your Honor.

[00:30:21] Speaker 00:
First, I would reject the notion that Mr. McClain wasn't accommodated upon.

[00:30:27] Speaker 00:
He was provided a large sum of money.

[00:30:28] Speaker 00:
He was reinstated to his position.

[00:30:30] Speaker 01:
When you say large sum of money, this is not some windfall to him.

[00:30:32] Speaker 01:
This is the exact amount of money he would have gotten if the government had not

[00:30:36] Speaker 01:
fired him after he tried to report dangers to the public and so it's not like he got some windfall and on top of that the money is reduced by the guy had to work during those nine years to feed himself and so the government takes that money out.

[00:30:50] Speaker 01:
of what they give him.

[00:30:50] Speaker 01:
So there's no concept of windfall whatsoever in this reimbursement, right?

[00:30:54] Speaker 00:
I'm not arguing windfall.

[00:30:55] Speaker 00:
Upon this reinstatement, though, he was provided a transfer to a non-flying position, a coveted position.

[00:31:01] Speaker 00:
He also was allowed to qualify for promotions outside of the normal course.

[00:31:05] Speaker 00:
So I would reject the notion that the TSA did not provide Mr. McLean with the accommodations upon being reinstated.

[00:31:12] Speaker 00:
With respect to the showing necessary to

[00:31:16] Speaker 00:
to show that you are clearly entitled to a promotion.

[00:31:19] Speaker 00:
I don't think it's just a matter of statistics.

[00:31:22] Speaker 00:
That is just one piece of evidence.

[00:31:23] Speaker 02:
Mr. McClain failed to... Can I ask you, wholly outside this MSPB context, say in Title VII law or other kind of wrongful firing law, when a court finds the firing has been wrongful, do you restore the person to

[00:31:45] Speaker 02:
the person, the place the person would have occupied but for the wrong.

[00:31:50] Speaker 02:
And say it's nine years until that happens.

[00:31:56] Speaker 02:
What standards do courts use in figuring out

[00:32:02] Speaker 02:
how many pay raises, what advancement within the office that individual would have had, had the wrong not been committed in the first place.

[00:32:14] Speaker 02:
A clear establishment kind of standard or just a ordinary but for standard with all the uncertainties that might go ahead.

[00:32:22] Speaker 02:
May I finish?

[00:32:23] Speaker 00:
Please.

[00:32:24] Speaker 00:
So unfortunately, though, I cannot tell you in Title VII cases between private employers and employees, for example, what the standard is like.

[00:32:33] Speaker 00:
I do know that in this court, in adverse action appeals at the MSPB, it is the standard that has been laid out in the briefs and that Mr. McClain seems to concede is the standard.

[00:32:45] Speaker 00:
And that's why we're on bond territory.

[00:32:47] Speaker 00:
It is that you have to show a promotion was as a matter of law.

[00:32:51] Speaker 00:
You clearly would have gotten it.

[00:32:52] Speaker 00:
I would add, in responding to this last question, that Mr. McClain failed to conduct timely discovery.

[00:32:58] Speaker 00:
If he had conducted timely discovery, he would have sought evidence.

[00:33:02] Speaker 02:
Right, but let me just follow up.

[00:33:04] Speaker 02:
If we are talking, as you said we were, about a kind of preview of onbound territory, it might really matter how this Saxon issue is dealt with.

[00:33:14] Speaker 02:
in the rest of the world of wrongful firings, wouldn't it?

[00:33:19] Speaker 00:
Yeah, it may be relevant in other contexts outside of an adverse action appeal at the MSPB.

[00:33:25] Speaker 00:
But here we have the law, and it was correctly applied by the administrative judge.

[00:33:30] Speaker 00:
Mr. McLean did not seek timely discovery.

[00:33:33] Speaker 00:
He has not challenged the denial of reopening discovery.

[00:33:37] Speaker 00:
So we're left to rely on the evidence.

[00:33:40] Speaker 00:
That was cited by the miniature judge because Mr. McClain failed to develop his retroactive promotion claim when he should have.

[00:33:48] Speaker 00:
Thank you.

[00:33:49] Speaker ?:
Thank you.

[00:33:57] Speaker 04:
Thank you.

[00:33:58] Speaker 04:
In discovery, all we were seeking was just, we were just trying to get some resumes.

[00:34:03] Speaker 04:
Mr. McClain already had pretty well put his case together with the voluminous submissions to show why he thought that he would have been promoted.

[00:34:15] Speaker 04:
And the issue really is whether or not the administrative logist can just ignore all of it on the basis of

[00:34:24] Speaker 04:
of Bessey and Nagle, two earlier decisions of the court that he cited, neither of which was a whistleblower case, which simply carried forward this 1979 Powers versus U.S.

[00:34:40] Speaker 04:
case that had established this clearly established rule

[00:34:45] Speaker 04:
And all that was is quoting, the case specifically says, well, quoting the Office of Personnel Management rule that's there, unclearly established.

[00:34:56] Speaker 04:
Maybe that's the standard.

[00:34:58] Speaker 04:
It was non-whistleblower cases that migrated that court of claims forward.

[00:35:06] Speaker 04:
And all we are asking the court to do is to get back to, as Judge Newman was saying, and look at the whistleblower statute.

[00:35:13] Speaker 04:
That's what governs our burden of proof.

[00:35:15] Speaker 04:
That's what governs what Mr. McClain should have had to show.

[00:35:18] Speaker 04:
Thank you very much.

[00:35:19] Speaker 05:
Thank you.

[00:35:19] Speaker 05:
We thank both sides.

[00:35:20] Speaker 05:
The case is submitted.

[00:35:21] Speaker 05:
That concludes our proceedings for this morning.