[00:00:11] Speaker 04:
Mr. Milligan.

[00:00:13] Speaker 03:
May it please the court, if this is an employment-related contract case, the claims court decided that a DVA trainee assigned to an Army residency program may be terminated from that residency program without any of the rights set out in his residency contract.

[00:00:30] Speaker 04:
Do we have a contract in this situation?

[00:00:32] Speaker 04:
Yes, we do.

[00:00:33] Speaker 04:
Show us where the contract is.

[00:00:37] Speaker ?:
OK.

[00:00:51] Speaker 00:
Ninety-one.

[00:00:52] Speaker 00:
What?

[00:00:52] Speaker 00:
Ninety-one.

[00:00:55] Speaker 01:
Thank you.

[00:00:56] Speaker 03:
Ninety-six.

[00:01:01] Speaker 03:
Ninety-one is residency agreement.

[00:01:03] Speaker 03:
It says right there an agreement, a contract by any other name.

[00:01:08] Speaker 03:
And you turn over to 96, paragraph 8.

[00:01:11] Speaker 00:
And just to be clear, this is not a contract with DVA.

[00:01:14] Speaker 00:
This is a contract with the Army Center.

[00:01:16] Speaker 03:
Yes, sir.

[00:01:16] Speaker 00:
Different counterparty.

[00:01:17] Speaker 00:
That's right.

[00:01:18] Speaker 00:
And the Army Center is not the employer.

[00:01:21] Speaker 00:
The Army said, I think the Army said... The way that I, I guess, I came away from the Court of Federal Claims opinion thinking that there had been at least a premature, maybe an incorrect, conflation of two different legal relationships.

[00:01:38] Speaker 00:
One, the relationship that your client had with DVA, which is undoubtedly an employment relationship.

[00:01:44] Speaker 00:
There's an SF-50 and it says, and the DVA is the

[00:01:51] Speaker 00:
I feel not the appointing authority, but something like that.

[00:01:54] Speaker 00:
And then a separate legal relationship that your client has contractually, expressly contractual with the Army Center.

[00:02:01] Speaker 00:
And that the fact that the two are in some way related, namely the employment disappears if there's a termination of the contract by dismissal from the residency program, doesn't mean there isn't a contract.

[00:02:16] Speaker 03:
That's our position.

[00:02:19] Speaker 03:
He didn't have a contract with the Department of Veterans Affairs.

[00:02:22] Speaker 03:
He had a contract with the Department of the Army, William Beaumont Army Medical Center.

[00:02:27] Speaker 03:
That's the contract he had.

[00:02:29] Speaker 03:
The funding for that was provided by a scholarship from the Department of Veterans Affairs.

[00:02:36] Speaker 03:
Dr. Refai did his internship at William Beaumont.

[00:02:41] Speaker 03:
Can I just call that Beaumont for brevity's sake?

[00:02:44] Speaker 03:
Sure.

[00:02:44] Speaker 03:
I mean, Beaumont is a city.

[00:02:46] Speaker 03:
800 odd miles from the hospital.

[00:02:48] Speaker 03:
But Beaumont, he did his internship with William Beaumont.

[00:02:52] Speaker 03:
Then after that, he applied for a scholarship to do a residency with the Department of Veterans Affairs.

[00:03:00] Speaker 03:
He got that scholarship.

[00:03:01] Speaker 03:
He got paid $40,000 a year during his residency.

[00:03:06] Speaker 03:
But he did all his work at William Beaumont.

[00:03:07] Speaker 03:
William Beaumont was the functional employer there.

[00:03:14] Speaker 00:
It feels to me like it might be unhelpful to your case for you to consider Beaumont a functional employer.

[00:03:23] Speaker 00:
If it's all a single entity on the opposite side of a single legal relationship that Dr. Rafai had with the United States government, then that looks

[00:03:40] Speaker 00:
maybe like just an employment relationship.

[00:03:43] Speaker 00:
But if it's two separate relationships with the Army not being the employer, then maybe you at least have the beginning of an argument that you have a contract with the United States government, namely with the Army, but not DBA.

[00:03:55] Speaker 03:
Well, I certainly think I have a beginning.

[00:03:59] Speaker 03:
I think I have an end.

[00:04:01] Speaker 03:
The Army, William Beaumont.

[00:04:04] Speaker 01:
I guess to follow up on Judge Toronto's question,

[00:04:08] Speaker 01:
How did the hiring process take place here?

[00:04:12] Speaker 01:
Was he, was Mr. Raffaei, Dr. Raffaei first hired, appointed by the VA through an SF50 and then somehow there was some separate distinct action that where you could say he was next somehow hired by Beaumont to engage in these services in exchange for the salary and benefits?

[00:04:38] Speaker 03:
It was chronologically different.

[00:04:40] Speaker 03:
He was selected for the residency program by William Beaumont, and he simultaneously applied for the scholarship with the DVA, getting accepted into the residency program by the program director, same man who signed this agreement for the Army.

[00:04:59] Speaker 03:
Dr. Dizzee.

[00:05:00] Speaker 03:
Dr. Dizzee, yes, thank you.

[00:05:02] Speaker 03:
Anyway, that triggered the scholarship on the part of the

[00:05:06] Speaker 03:
uh... department veterans uh... uh... uh... veterans affairs uh... and he became he became their employee and then he became uh... uh... and uh... and then he uh... he entered into his residency so Dr. Raffaei you're saying you have a contract and so who does Dr. Raffaei have a contract with?

[00:05:26] Speaker 04:
uh... the united states the united states government?

[00:05:30] Speaker 01:
yes and how do we know that Dr. Desi

[00:05:35] Speaker 01:
had authority to enter into that contract.

[00:05:40] Speaker 01:
This is something that the government pointed out that for you to establish jurisdiction, which is your burden, it was on you to explain what was it, statute, regulation, or otherwise, that granted Dr. Desit this authority to enter into this kind of a contract with your client.

[00:06:04] Speaker 03:
Well, he was the program director of the residency program that Dr. Refai was in.

[00:06:10] Speaker 03:
And he had this relationship with Dr. Refai throughout his residency.

[00:06:19] Speaker 03:
And the program director is a person who has a great deal of authority under AR 351-3.

[00:06:26] Speaker 03:
Excuse me.

[00:06:29] Speaker 01:
I guess what I'm thinking about is when I was in the government, I managed an office.

[00:06:34] Speaker 01:
would try to hire people.

[00:06:35] Speaker 01:
But I don't know if I, on behalf of the United States, had the authority to enter into an employment contract with lots of different terms, terms that look almost like they're driven by statute regulation and policies otherwise.

[00:06:51] Speaker 01:
I wouldn't have, I don't think I had that authority to draft up and enter into a contract with anybody that I was hiring into my little office.

[00:07:01] Speaker 03:
Well, but I think that's exactly what the ACGME rules and the regulation contemplate.

[00:07:08] Speaker 03:
The program director is a very prominent figure, mentioned repeatedly in AR 351-3.

[00:07:14] Speaker 03:
He's obviously a man of authority.

[00:07:17] Speaker 03:
There ought to be, and there has to be, I think, a presumption of regularity here.

[00:07:22] Speaker 03:
There has to be the rules are very clear, the regulation and the ACGME policies, and the army-wide directive.

[00:07:30] Speaker 04:
So counselor, let's assume that you have a contract, the one that you're describing.

[00:07:35] Speaker 04:
Yes, sir.

[00:07:36] Speaker 04:
Is it money-mandating?

[00:07:37] Speaker 03:
Contracts by themselves are money-mandating.

[00:07:40] Speaker 03:
That's the lesson we learned from Holmes.

[00:07:42] Speaker 04:
All contracts are money-mandating?

[00:07:45] Speaker 03:
Well, OK.

[00:07:46] Speaker 03:
Higbee, I know I'm looking at two different sides of that case.

[00:07:53] Speaker 03:
And of course, I agree with Judge DeRondo and disagree with you, Judge Rada.

[00:07:56] Speaker 00:
But now you're going to say that that case doesn't concern you?

[00:08:00] Speaker 00:
Now you're going to say that that case doesn't control here, right?

[00:08:03] Speaker 03:
Well, I think it's distinguishable.

[00:08:06] Speaker 03:
I think if you, in that case, what the two-judge majority decided was that, oh, you know this.

[00:08:16] Speaker 03:
I don't need to tell you.

[00:08:17] Speaker 03:
But I think it is distinguishable.

[00:08:18] Speaker 01:
I wasn't on that case.

[00:08:21] Speaker 01:
Could you help refresh me over here?

[00:08:24] Speaker 03:
OK.

[00:08:25] Speaker 03:
At least I hope I wasn't.

[00:08:29] Speaker 03:
Poor Mr. Higby had a mediation.

[00:08:34] Speaker 03:
And there was a normal confidentiality agreement in the mediation.

[00:08:38] Speaker 03:
I think it was the Postal Service.

[00:08:39] Speaker 03:
Postal Service made an order.

[00:08:41] Speaker 03:
Mr. Higby blew up and came to the conference room where the management was and cussed them out.

[00:08:49] Speaker 03:
Now, they fired him for that act of insubordination and misconduct during the mediation.

[00:08:54] Speaker 03:
They had that confidentiality agreement.

[00:08:57] Speaker 03:
And so he claimed that firing him was a violation of that confidentiality agreement.

[00:09:06] Speaker 03:
Now, Judge Raina, for the majority, said that the mediation agreement has its own remedy.

[00:09:15] Speaker 03:
You can't use that.

[00:09:17] Speaker 03:
That is the exclusionary rule, which keeps out anything that happened in the mediation in the trial.

[00:09:24] Speaker 03:
Judge Toronto, whom I thought was correct, said that the agreement is presumed to be money-mandating.

[00:09:35] Speaker 03:
Now, I think you can distinguish it by saying that in that limited case, that contract is not money-mandating.

[00:09:44] Speaker 03:
It contains its own remedy, the exclusionary rule.

[00:09:48] Speaker 03:
But this case

[00:09:50] Speaker 03:
I think if you're denied due process, if you're bounced out of a residency program for a reason that turns out to be a Trojan horse when you get into the hearing, they notify you of one charge, they come in and talk about something else and end up firing you for that.

[00:10:06] Speaker 03:
You don't have, you didn't, he did, Dr. Riffai did not have notice, he did not have an opportunity to be heard.

[00:10:14] Speaker 03:
He now has half the earning lifetime potential.

[00:10:18] Speaker 03:
That, now I think,

[00:10:19] Speaker 00:
The damages you seek here may include or may not include, maybe it doesn't matter, the last two months of the employment of the DVA, they are principally about expectation damages for the career going forward.

[00:10:38] Speaker 03:
Yes, sir.

[00:10:39] Speaker 03:
And I think that's supported by the medical legal environment.

[00:10:44] Speaker 00:
Suppose you were, I realize this would be getting ahead

[00:10:49] Speaker 00:
If the case were to go back and you would get to establish that there was a contract and then litigate whether the contractual procedural protections, which are called the due process policy, were complied with, would the government get to say maybe contractual violation but no harm because if we did it right, you still would have been kicked out of the residency program?

[00:11:16] Speaker 03:
They can say that.

[00:11:18] Speaker 03:
I don't think they can make it.

[00:11:22] Speaker 03:
Okay.

[00:11:22] Speaker 03:
Would that be a defense?

[00:11:24] Speaker 03:
No harm, no foul.

[00:11:27] Speaker 03:
I don't know the answer to that.

[00:11:29] Speaker 03:
I haven't tried the case in my head.

[00:11:32] Speaker 03:
I think there, but I think that will probably be their defense.

[00:11:40] Speaker 03:
That would be nice, but I can't get it from this Court.

[00:11:44] Speaker 03:
If they had

[00:11:46] Speaker 03:
Yes, yes.

[00:11:47] Speaker 03:
We'd love him to be reinstated and get back into his old position.

[00:11:54] Speaker 03:
I assure you if we ever mediate this case, that will be on the table.

[00:11:58] Speaker 00:
But you won't tell anybody about it, because it would be confidential.

[00:12:02] Speaker 00:
After the Beaumont Center kicked Dr. Refai out of the residency program, was there a separate action by DVA to terminate the employment?

[00:12:16] Speaker 00:
Or did that happen automatically?

[00:12:18] Speaker 00:
Is there a paper record on the end?

[00:12:22] Speaker 00:
I don't think we have a document indicating that.

[00:12:26] Speaker 03:
I think you may not.

[00:12:27] Speaker 03:
The termination was automatic.

[00:12:29] Speaker 03:
I think that's in the regulation and in the statute somewhere.

[00:12:33] Speaker 00:
Would there be, I don't know if it's an SF whatever, another standard form thing that says?

[00:12:40] Speaker 03:
I think there is, and I thought it was in the record.

[00:12:42] Speaker 03:
But, you know, you're obviously up on this issue.

[00:12:45] Speaker 03:
And if it's not there, it's not there.

[00:12:51] Speaker 03:
But now, under current regulations,

[00:12:55] Speaker 03:
there is a separate decision made by the Department of Veterans Affairs.

[00:12:58] Speaker 03:
So if this happened today, the resident would get one last bite of the apple with DVA.

[00:13:04] Speaker 01:
When it comes to the due process rights that Dr. Refai and any medical resident would enjoy, that's already provided for in that due process policy document, right?

[00:13:21] Speaker 01:
Regardless of whether

[00:13:22] Speaker 01:
this residency agreement is or is not a contract.

[00:13:26] Speaker 01:
I'd say there was no residency agreement.

[00:13:29] Speaker 01:
Dr. Raffaei would automatically be entitled to those due process rights laid out in the due process policy document.

[00:13:37] Speaker 03:
I think so.

[00:13:39] Speaker 03:
As a result of the regulation, which requires a due process policy, and the army-wide directive, which was the attachment, I think even without a contract,

[00:13:51] Speaker 03:
he still would have a right, that would still be a money mandating regulation and directive.

[00:13:58] Speaker 01:
Well, I guess I'm having trouble trying to see if provision number eight in the residency agreement, even if it were a contract, does it really incorporate by reference into the contract the due process document or does it say

[00:14:18] Speaker 01:
You know, you get these rights over there under the due process policy argument.

[00:14:25] Speaker 01:
Don't forget about those.

[00:14:26] Speaker 01:
But it's not necessarily incorporated by reference into the agreement itself.

[00:14:32] Speaker 03:
I don't think you can incorporate by reference any better than to say, guarantee of fair procedures, see the due process document.

[00:14:40] Speaker 03:
Remember, he had signed a receipt for the due process document some weeks, at least, before he came on duty.

[00:14:48] Speaker 03:
But they had not signed it.

[00:14:49] Speaker 03:
It was their incorporation of it by reference in here that turned this into a contract.

[00:14:55] Speaker 04:
Okay.

[00:14:57] Speaker 04:
You're out of time, and I'm going to refer you to the time on rebuttal.

[00:15:04] Speaker 04:
So let's hear now from Mr. Seekind.

[00:15:07] Speaker 02:
Yes, Your Honor.

[00:15:11] Speaker 04:
Is there a contract here?

[00:15:13] Speaker 02:
No, there's not, but this might be surprising for the Court to hear because this wasn't explained as clearly as it should have been in our brief, but whether or not there was a contract absolutely does not matter.

[00:15:24] Speaker 02:
The issue in this case should be the starting point, is whether a Federal employee serving by appointment may challenge his termination other than as permitted by the Civil Service Reform Act.

[00:15:36] Speaker 00:
The answer to that question is no.

[00:15:38] Speaker 00:
But let me suggest that that's not, in fact, the question, because what he's complaining about is not the termination of his employment.

[00:15:44] Speaker 00:
He's complaining about having been kicked out in violation of the contract of the residency program, exactly the way he would complain, though not in this form, if the residency program were at Baylor.

[00:15:57] Speaker 02:
Your Honor, I would call the Court's attention.

[00:15:59] Speaker 00:
And he would sue Baylor.

[00:16:00] Speaker 00:
on a contract, even if DBA sponsors private residency things, not just at the Army?

[00:16:10] Speaker 02:
I don't know, Your Honor.

[00:16:11] Speaker 00:
Well, let's assume it does.

[00:16:14] Speaker 00:
That's the point on which, I guess,

[00:16:17] Speaker 00:
I think you know the focus.

[00:16:19] Speaker 00:
It feels to me as though there are two separate legal relationships here.

[00:16:23] Speaker 00:
One contractual, which happens to be with the Army Center, one employment.

[00:16:28] Speaker 00:
The employment, you can't go under the Tucker Act.

[00:16:31] Speaker 00:
But I'm not seeing that there was a discussion, a recognition of the difference between those two things.

[00:16:40] Speaker 00:
in the Court of Federal Claims, and I'm not seeing why the second one can be completely folded into the first, which is your argument.

[00:16:49] Speaker 02:
I have a legal answer and a factual response, and I'd like to discuss them both.

[00:16:55] Speaker 02:
The legal answer, I think, is simple.

[00:16:57] Speaker 02:
Fausto, the relevant Supreme Court case addressing CSR, Gramscian... That's about an employment relationship, not about a separate contractual relationship.

[00:17:06] Speaker 02:
Well, I'll get to that, then.

[00:17:08] Speaker 00:
To answer your... Yes, right.

[00:17:09] Speaker 00:
Tell me that that's wrong.

[00:17:10] Speaker 02:
I, Fausto holds the comprehensive nature of the CSRA, the attention that it gives throughout to the rights of covered employees and the fact that it does not include them in provisions for administrative and judicial review.

[00:17:25] Speaker 02:
combined to establish a congressional judgment that those employees should not be able to demand judicial review for the type of personnel action covered by that chapter.

[00:17:33] Speaker 00:
Personnel action.

[00:17:33] Speaker 00:
It's about the employment relationship.

[00:17:35] Speaker 02:
Yes, to respond to the factual component of your question.

[00:17:39] Speaker 00:
This whole case is about whether there is something more than an employment relationship, like a residency relationship, which would be identical if he had it with Baylor.

[00:17:49] Speaker 02:
I would refer, Your Honor, to the complaint.

[00:17:52] Speaker 02:
I'm looking specifically at paragraphs 13 through 24 on pages 6 and 7 of plaintiff's complaint.

[00:17:59] Speaker 02:
This is the transfer complaint that was filed in the Court of Federal Affairs.

[00:18:07] Speaker 02:
I apologize.

[00:18:08] Speaker 02:
The version that I have is not tabbed with the appendix numbers.

[00:18:15] Speaker 02:
Thank you, Your Honor.

[00:18:17] Speaker 02:
I'm looking first at Count 1 of the complaint, paragraph 13, page 6 of the complaint.

[00:18:25] Speaker 02:
Now, Count 1 alleges that the Army Hospital had a policy for probationary periods and termination of employees during probationary periods and due process policy for termination cases at the behest of the Army and the accreditation board.

[00:18:39] Speaker 02:
If you go on to paragraph 16 in Count 2, again, it's clear that the allegations all

[00:18:45] Speaker 02:
all come back to his termination from employment.

[00:18:48] Speaker 02:
Same thing with count three, same thing with count four.

[00:18:51] Speaker 02:
He's clearly challenging his termination from federal employment.

[00:18:54] Speaker 00:
And if you look at paragraph 24 of the complaint... Suppose I thought the following, that the complaint in this extremely confusing area was not written quite the right way, and that he really ought to have a right to amend the complaint to stop calling his relationship with Beaumont an employment relationship.

[00:19:16] Speaker 00:
Why does, why should that not happen?

[00:19:23] Speaker 02:
Sure.

[00:19:24] Speaker 02:
And we address this in our brief, Your Honor.

[00:19:28] Speaker 02:
I'm looking through the page site for you.

[00:19:39] Speaker 02:
On pages 20 to 21 of our brief, we explained why the trial court did not abuse its discretion in

[00:19:46] Speaker 02:
denying either discovery or leave to amend, and there are two answers.

[00:19:54] Speaker 02:
The first answer is that it was not properly requested, and there's extensive authority for the proposition that the sort of belated request made in a response to a dispositive motion is not sufficient.

[00:20:10] Speaker 02:
It's not the same as formally moving for leave to amend.

[00:20:15] Speaker 02:
More importantly,

[00:20:17] Speaker 02:
it wouldn't have made any difference to the extent that the plaintiff is claiming that he's entitled to discovery, jurisdictional discovery, that's something that he would only be entitled to if he had pled a plausible proper claim.

[00:20:33] Speaker 00:
Well, so the futility point, I think, is a non-answer because

[00:20:36] Speaker 00:
That depends completely on accepting the premise that it would not make a difference if he alleged that he had a contractual non-employment relationship with the Army Center to be in their residency program exactly as he would if the residency program were at Baylor.

[00:20:56] Speaker 00:
So what remains is the first point that he used language that conflated the two, perhaps confusingly,

[00:21:05] Speaker 00:
perhaps deliberately, and deliberately, then maybe he's stuck with it, but if merely, confusingly, then why shouldn't, and if it would indeed make a difference between having a claim and not, why is he not entitled to it?

[00:21:22] Speaker 00:
I have another... Because he didn't file the right paper?

[00:21:26] Speaker 00:
No, that's not why you're on it.

[00:21:27] Speaker 02:
Sometimes that's... I don't believe there's anything that he could have pled, remotely consistent with

[00:21:34] Speaker 02:
even the most charitable interpretation of the allegations that we're dealing with now that would entitle him to seek judicial review under the CSRA.

[00:21:42] Speaker 02:
I would also call the court's attention to the Chu v. United States.

[00:21:45] Speaker 00:
Wait, wait, wait.

[00:21:45] Speaker 00:
I don't understand what you said.

[00:21:46] Speaker 00:
He's not seeking judicial review under the CSRA.

[00:21:49] Speaker 00:
He's seeking to enforce for damages for breach of a contract.

[00:21:53] Speaker 02:
This court's precedent has held that a plaintiff such as Dr. Refai cannot do that, that that is an improper end run around the CSRA.

[00:22:02] Speaker 02:
Yes.

[00:22:03] Speaker 00:
So what other case involves an attempt to assert a contract about something other than the employment relationship, in which the court has said, no, no, employment with the government is by appointment, not by contract?

[00:22:23] Speaker 02:
something I'm sorry.

[00:22:25] Speaker 00:
You have a whole line of cases, a very important line of cases that says if you're a federal employee and you're complaining about what happened to you as an employee, usually discharge, you can't bring that under the Tucker Act with extremely few exceptions.

[00:22:39] Speaker 00:
It seems to me, at least I guess I'm curious, I thought every one of those cases, in every one of those cases, in that line of cases

[00:22:48] Speaker 00:
the complainant was complaining about what happened to him as an employee.

[00:22:54] Speaker 00:
He was fired.

[00:22:55] Speaker 00:
He was whatever.

[00:22:57] Speaker 02:
Yes.

[00:22:58] Speaker 00:
And the contract claim that if not exactly in this complaint seems to me to be essentially in his complaint is not about his employment relationship.

[00:23:08] Speaker 00:
It's about his termination from residency.

[00:23:11] Speaker 00:
And he, roughly speaking, doesn't care at all about the last two months of pay from DVA.

[00:23:18] Speaker 00:
He cares about the next 40 years of his medical career.

[00:23:23] Speaker 02:
I understand Your Honor's view about the significance of the distinction between his relationship with the VA and with the Army.

[00:23:32] Speaker 02:
And I'm not aware of a case that has dealt with this specific contractual situation.

[00:23:38] Speaker 02:
But I do think that there are several cases from this Court that would, at a minimum, be in significant tension

[00:23:46] Speaker 02:
with allowing a plaintiff such as Dr. Rifai to achieve this end run, to attempt to characterize his grievance here as something other than an employment dispute, which is really what it is.

[00:23:57] Speaker 00:
So what are some of those?

[00:23:58] Speaker 02:
I would start with Chu versus the United States, 773 F2D 1226 from this court in 1985.

[00:24:07] Speaker 02:
The relevant language says that

[00:24:13] Speaker 02:
that their rights as trainees preceded and therefore exceeded their rights as employees is contrary to well-established principle that, absent specific legislation, Federal employees derive their benefits and emoluments of their positions from appointment rather than any contractual or quasi-contractual relationship with the government.

[00:24:33] Speaker 02:
Now, again, it's not the precise factual situation that we're dealing with here,

[00:24:40] Speaker 02:
The court in Chu recognized that you couldn't get around the CSRA by arguing that you had some separate contractual or quasi-contractual relationship due to your status as an employee that was somehow different than your employment relationship.

[00:24:55] Speaker 02:
The court concluded, therefore, Plaintiff may not base his theory of recovery on contract law since he was a Federal employee.

[00:25:01] Speaker 02:
I think this, this, this, I understand your view, Your Honor.

[00:25:07] Speaker 02:
I think that

[00:25:07] Speaker 00:
If this court would- If I remember right, that was a case in which the ultimate thing he was complaining about was the termination of the residency program.

[00:25:19] Speaker 00:
But that followed from what the underlying cause, which was the dismissal from employment.

[00:25:25] Speaker 00:
So in order to challenge the residency program termination, and it wasn't even quite a termination, it was the end of the program, he had to challenge an employment decision.

[00:25:38] Speaker 00:
That's essentially the opposite of what's going on here.

[00:25:41] Speaker 02:
Your Honor, I would also refer to Townsend versus the United States.

[00:25:45] Speaker 02:
This is 468, federal appendix 962.

[00:25:47] Speaker 02:
This is a 2012 decision of this court.

[00:25:50] Speaker 02:
And I think this is another case that has language that strongly suggests that it's not proper for employees such as Dr. Rafai to circumvent the CSRA by repackaging what is essentially an employment dispute.

[00:26:07] Speaker 00:
What makes this essentially an employment dispute?

[00:26:11] Speaker 02:
There's no dispute that he was hired and employed by the federal government.

[00:26:15] Speaker 02:
There's no dispute that he was working for the federal government, VA was paying his salary, and yes, he did happen to be working at an Army hospital.

[00:26:24] Speaker 00:
had to be happy to be part of a residency program with an army hospital.

[00:26:30] Speaker 00:
The residency program having an express, twice signed agreement for purposes that have something to do with the enormous going forward consequences of being treated fairly in that residency program.

[00:26:48] Speaker 00:
Yes, and perhaps this is a... And that would be true even if it were a Baylor residency program.

[00:26:53] Speaker 02:
Correct, Your Honor.

[00:26:54] Speaker 02:
Yes.

[00:26:56] Speaker 02:
I agree with that.

[00:26:59] Speaker 02:
There are additional cases that I'm happy to go through from this Court and from the Supreme Court, all tying back to Fausto, that I think, while not precisely factually on point and that they don't involve the identical sort of contractual relationship or employment relationship with somebody hired by one agency and doing work for another agency, nevertheless,

[00:27:22] Speaker 02:
make clear that this is not a situation where any federal employee is entitled to circumvent the CSRA.

[00:27:29] Speaker 02:
But to respond to Your Honor's concerns, I would like to talk briefly about the due process that Dr. Refai in fact received in this case.

[00:27:38] Speaker 02:
And I think that this is important because quite frankly-

[00:27:43] Speaker 00:
That is, don't we have to assume at this stage of the case that everything he says about the violation of the due process policy is true just because it's basically on a motion to dismiss?

[00:27:56] Speaker 02:
No.

[00:27:57] Speaker 02:
The trial court and this court only have to accept well pleaded plausible allegations.

[00:28:02] Speaker 02:
And more importantly, there is a published decision from the Fifth Circuit Court of Appeals

[00:28:08] Speaker 02:
involving these same parties that preceded this transfer that touches on some of this.

[00:28:12] Speaker 02:
It's not binding in this Court, but nonetheless may be persuasive or perhaps even inclusive.

[00:28:19] Speaker 02:
And I would absolutely encourage the Court to review that opinion closely.

[00:28:23] Speaker 02:
And I have it here.

[00:28:26] Speaker 02:
Now, this I don't believe is in the joint appendix, but this is a published opinion by the Fifth Circuit.

[00:28:30] Speaker 02:
And this is on the docket in this case.

[00:28:33] Speaker 02:
This is this opinion is part of the initial

[00:28:38] Speaker 02:
transfer package.

[00:28:39] Speaker 02:
If you look at pages two to three of the Fifth Circuit's opinion in this case, it goes into great detail about two important things.

[00:28:49] Speaker 02:
Number one, it describes the extensive due process that medical residents at the Army Hospital were entitled to.

[00:28:57] Speaker 02:
And I don't think that... So far, he would agree.

[00:29:00] Speaker 00:
He's not complaining about what they were entitled to.

[00:29:02] Speaker 00:
Right.

[00:29:03] Speaker 00:
He's complaining about what he got.

[00:29:04] Speaker 02:
Right.

[00:29:05] Speaker 02:
Going on to page three of the Fifth Circuit's opinion, they make factual findings as to how these requirements were applied to Dr. Rafai.

[00:29:16] Speaker 02:
Just briefly to give the court the overview and background.

[00:29:21] Speaker 04:
Was this the age and employment discrimination suits?

[00:29:25] Speaker 02:
Yes.

[00:29:26] Speaker 02:
This was an appeal of the dismissal or judgment for the government on his Title VII, his ADEA claim, and his initial breach of contract claim.

[00:29:35] Speaker 02:
and the Fifth Circuit affirmed dismissal or judgment on every one of the claims, but found that it was improper for the district court to dismiss the contract.

[00:29:46] Speaker 02:
By the way, the district court held that the CSRA precluded his contract claim, but the Fifth Circuit, while not disagreeing with that, held that it was within the Court of Federal Claims jurisdiction to address in the first instance.

[00:29:56] Speaker 02:
But I digress.

[00:29:58] Speaker 02:
The Fifth Circuit noted that there are three levels of

[00:30:02] Speaker 02:
disciplinary actions relevant to this case that the Army regulation provided for.

[00:30:08] Speaker 02:
Number one, program-level remediation, which the Court described as typically lasting about 60 days during which the leadership at the hospital provides additional resources to its residents who are struggling in the residency program.

[00:30:23] Speaker 02:
If a resident's deficiencies persist, then you get to the second level of disciplinary action, and that's probation.

[00:30:29] Speaker 02:
And then that's followed by termination.

[00:30:31] Speaker 02:
And what is not discussed in the brief in this case is the fact that Dr. Refai was actually on probation for other repeated violations and problems involving patient care that came up over the course of his residency and on page three of the Fifth Circuit opinion.

[00:30:53] Speaker 01:
How does any of this help me try to figure out whether this residency agreement is a contract?

[00:31:01] Speaker 02:
What I'm talking about right now does not relate to whether or not it's a contract.

[00:31:05] Speaker 02:
I think it's not for the reasons discussed in our brief.

[00:31:08] Speaker 02:
Number one, there's no plausible allegation of any authority to enter into a contract.

[00:31:14] Speaker 01:
Let's just assume for the moment that maybe there is some room for the possibility for a federal employee to also have some kind of side contract deal with some unit of the government.

[00:31:29] Speaker 01:
And then the next question, or at least

[00:31:31] Speaker 01:
We're not going to say that you can never, ever, ever have that.

[00:31:35] Speaker 01:
Anything and everything you do for the government is always going to be covered underneath the appointment.

[00:31:44] Speaker 01:
All right.

[00:31:44] Speaker 01:
So then the next question is, what is this residency agreement?

[00:31:48] Speaker 01:
How am I supposed to think about this residency agreement?

[00:31:51] Speaker 01:
And why can't it be something that's plus in the sense that it's above and beyond and different and distinct from the appointment?

[00:32:01] Speaker 01:
of him to the federal government?

[00:32:04] Speaker 02:
Putting aside Fausto and putting aside all the CSRA claims and accepting... Yeah, just get to the point, please.

[00:32:10] Speaker 02:
Right, accepting that.

[00:32:13] Speaker 02:
You would need authority, plausible allegations of authority on behalf of somebody from the government to enter into the contract, and I think the trial court correctly found that there were no such allegations here.

[00:32:28] Speaker 02:
you need, as we address in our brief, you need the elements of an express or implied contract, which this is also addressed in our brief.

[00:32:35] Speaker 02:
And the trial court touched on all of these issues in its opinion, too.

[00:32:41] Speaker 00:
And I'm sorry, this is the point.

[00:32:42] Speaker 00:
There was no consideration, even though for four years he was going to provide Army, Beaumont, Army Center, patients, medical care, that presumably the Army very much benefited from.

[00:32:55] Speaker 02:
Well, to hold that the mere fact of the employment itself is consideration would essentially turn every guideline or policy or procedure that any federal agency has for its employees into a contract, Your Honor.

[00:33:08] Speaker 02:
I mean, I think that you would need something more.

[00:33:11] Speaker 02:
And I don't see what that is here in this case.

[00:33:14] Speaker 04:
We're going to have to move along the way over time.

[00:33:17] Speaker 04:
Thank you, Your Honor.

[00:33:21] Speaker 03:
Do I have any time left?

[00:33:22] Speaker 04:
You have three minutes.

[00:33:24] Speaker 03:
OK.

[00:33:28] Speaker 03:
First off, denial of discovery.

[00:33:33] Speaker 03:
Judge Chen, coming back to your question, that was denied.

[00:33:36] Speaker 03:
The docket sheet in this case indicates a status conference on February 26, 2016.

[00:33:48] Speaker 03:
One week after the motion to dismiss was filed,

[00:33:51] Speaker 03:
It was a status conference.

[00:33:53] Speaker 03:
I asked in that status conference for some discovery about jurisdiction.

[00:33:59] Speaker 03:
That was denied.

[00:34:02] Speaker 01:
Is this your statement in your opposition to the other side's motion to dismiss, where you requested some discovery about the relationship between the medical education organization and the Army?

[00:34:18] Speaker 03:
That was the type of discovery I was talking about in the hearing.

[00:34:23] Speaker 03:
It was off the record.

[00:34:26] Speaker 03:
I tried to get a copy, a transcript of it, and there was no transcript taken.

[00:34:30] Speaker 03:
So it was off the record.

[00:34:32] Speaker 03:
I said, I needed to do some discovery.

[00:34:33] Speaker 03:
The court said, you're not going to get to do any discovery.

[00:34:37] Speaker 03:
I need to know, is this money, do you have a money-mandating statute or don't you?

[00:34:43] Speaker 03:
So I did not.

[00:34:46] Speaker 03:
repeatedly brought up the subject of discovery, and I would have liked to have it, but I can't tell you what authority Judge Deese, I mean, Dr. Deese had in this case.

[00:35:02] Speaker 01:
I didn't... But when you asked for discovery, my understanding of your request for discovery was limited to the question of what is the

[00:35:10] Speaker 01:
relationship, if any, that would seem to be a contract between the medical education organization and the Beaumont Medical Center to the extent such that if there was a contract, then your client would be considered a third-party beneficiary of said contract.

[00:35:26] Speaker 03:
Well, okay, that was a long-term objective of Discovery.

[00:35:30] Speaker 01:
Now, I think probably if I had had a... Have I mischaracterized what your request for Discovery was?

[00:35:38] Speaker 03:
I don't remember it as I stand here today.

[00:35:42] Speaker 03:
I was trying to talk about everything I intended to cover in discovery.

[00:35:47] Speaker 03:
As far as the third-party beneficiary issue goes, I probably would plead it now.

[00:35:55] Speaker 03:
Now that I have the benefit of the Ingham case decided by this Court a couple of months ago, that was the Tricare dispute.

[00:36:06] Speaker 03:
where this court found a contract from just the frequently asked questions about a policy that the government had about reimbursement for TRICARE services and an application for services under that contract.

[00:36:22] Speaker 03:
Now they found that to be a contract.

[00:36:25] Speaker 03:
Now what we've got is ACGME requirements

[00:36:29] Speaker 03:
And apparently, Fort Bliss saying, OK, we'll go along with it.

[00:36:34] Speaker 03:
I mean, William Beaumont saying, we'll go along with that.

[00:36:37] Speaker 03:
Or maybe it was at a higher level than that.

[00:36:38] Speaker 03:
I just don't know.

[00:36:40] Speaker 03:
But yes, I would plead it now, knowing how tolerant this court is.

[00:36:46] Speaker 01:
When it comes to an employee that gets appointed to an employment position by the federal government,

[00:36:56] Speaker 01:
Isn't it true that necessarily the appointment has many basic elements like salary, benefits, termination rights?

[00:37:10] Speaker 01:
They all are part and parcel with that appointment.

[00:37:14] Speaker 01:
Isn't that right?

[00:37:15] Speaker 01:
Yes, there is, but there's already... So then the question then comes for me, at least when I look at this residency agreement, why doesn't that just

[00:37:23] Speaker 01:
merge into what is your garden variety appointment when everything that's in there is essentially reflecting the basic elements of any federal employee appointment.

[00:37:36] Speaker 01:
There might be some details on this or that, but in the end, it's sick leave, it's insurance, it's salary, paid by the VA.

[00:37:48] Speaker 01:
So I'd like you to answer.

[00:37:50] Speaker 01:
Permission to continue.

[00:37:51] Speaker 01:
OK.

[00:37:52] Speaker 03:
All right.

[00:37:52] Speaker 03:
I think the answer to that is, first off, this is a contract between the United States and an individual.

[00:38:03] Speaker 03:
Second, there are already things about the employment relationship, litigation-related, that aren't necessarily where the contracts are not necessarily prohibited.

[00:38:13] Speaker 03:
The long line of cases which Higbee was a part, starting with homes,

[00:38:18] Speaker 03:
have held that the court of claims can certainly enforce settlement agreements of existing lawsuits with employees.

[00:38:28] Speaker 03:
Now, I think when you've got a case like this where the government enters a contract like this and then seeks to avoid it, you've squarely implicated

[00:38:47] Speaker 03:
that recent case from two months ago where this court said, in enforcing the contract rights of the Ingham Medical Center, to hold otherwise would allow an agency to flout its contractual commitments with impunity.

[00:39:02] Speaker 03:
That's what I think the United States wants in this case, and I don't think that's what the court should do.

[00:39:12] Speaker 03:
I'm way over.

[00:39:13] Speaker 03:
Thank you.