[00:00:01] Speaker 03:
you still have to address the affirmative defenses.

[00:00:04] Speaker 03:
Attainted personnel action, even if sustained, transfers a heightened burden to the agency to show by clear and convincing evidence that they would have taken that action independent of the protected disclosure that contributed to it.

[00:00:26] Speaker 03:
So the affirmative defense of whistleblower reprisal

[00:00:28] Speaker 03:
needs to be addressed if you sustain the charges, if you decline or affirm his denial of due process, and also the penalty analysis.

[00:00:45] Speaker 03:
So as I mentioned under the WPEA, because the judge found that his protective disclosure contributed to his removal,

[00:00:55] Speaker 03:
the agency board the heightened burden to prove by clearly and convincingly, it would have removed him regardless of his protective disclosures.

[00:01:05] Speaker 03:
And we contend that the administrative judges' analysis both contained legal and error and factual findings that were not well-reasoned in light of the well-developed record before you.

[00:01:20] Speaker 03:
Under Car Factor 1,

[00:01:22] Speaker 03:
the administrative judge was required to consider the strength of the evidence in support of its personnel action and found for the agency by referring generally to his earlier discussion for why he sustained the charges and then noting the quantity of the materials that were before Mr. Gibson at the time of the removal and stating that the volume before Mr. Gibson

[00:01:51] Speaker 03:
contained some unidentified materials which established Mr. Robinson's negligence.

[00:01:57] Speaker 03:
That was the whole sum of his CAR 1 analysis.

[00:02:01] Speaker 03:
In the red brief, the government notes that AJ's decision, a reference to his earlier discussion of the charges, is sufficient because there's no need for them to just, for the judge to repeat

[00:02:18] Speaker 03:
his detailed or his analysis for the charges in his CAR 1 analysis.

[00:02:25] Speaker 03:
And we contend that should this Court adopt that position, it essentially has made CAR 1 unnecessary.

[00:02:33] Speaker 03:
And that cannot be the purpose of CAR 1.

[00:02:36] Speaker 03:
Sustaining the charges is a different legal analysis for a different purpose.

[00:02:41] Speaker 03:
In this case, it entails a de novo review of the evidence in a preponderance

[00:02:47] Speaker 03:
And Car 1 is to analyze the strength of the evidence to see whether or not it is so strong.

[00:02:55] Speaker 03:
It clearly and convincingly meets the heightened burden for the agency to show it had independent causation.

[00:03:08] Speaker 03:
The administrative judge erred by relying upon the fact that the materials before Mr. Gibson were voluminous, but he never goes into addressing

[00:03:17] Speaker 03:
the quality of the evidence before him.

[00:03:21] Speaker 03:
And if you review the well-developed record, you can see that much of the evidence that was before Mr. Gibson and, indeed, before the administrative judge contained missing elements, actually the substantial portion of each specification in charge one and two.

[00:03:41] Speaker 03:
They were never part of the evidence file, or else

[00:03:46] Speaker 03:
they were redacted, and they were never introduced by the agency at hearing.

[00:03:51] Speaker 03:
As this court stated in Whitmore, the administrative judge also considered evidence that fairly detracts from the conclusion that there was an independent causation.

[00:04:05] Speaker 03:
And we contend that the administrative judge ignored the overwhelming evidence that showed that the evidence used to support the removal against Mr. Robinson

[00:04:16] Speaker 03:
was weak.

[00:04:18] Speaker 03:
For example, the materials used to support the removal of Mr. Robinson contained transcripts of IG testimony that had exculpatory emissions by foreign employees.

[00:04:30] Speaker 03:
They were a couple levels down from Mr. Robinson, who blamed themselves, these subject matter experts blamed themselves for the scheduling issues at Phoenix.

[00:04:40] Speaker 03:
There was also evidence

[00:04:42] Speaker 03:
of similar conduct.

[00:04:43] Speaker 03:
Can I just ask on that point?

[00:04:46] Speaker 02:
Does the charge of negligent supervision really get weaker because the employees that were supposed to be supervised fess up to making a mistake?

[00:05:02] Speaker 02:
That's what careful as opposed to the opposite.

[00:05:06] Speaker 02:
I mean, non-negligent supervision

[00:05:12] Speaker 02:
would have in the AJ's findings should have known about and prevented?

[00:05:20] Speaker 03:
Well, what's interesting about that is that they admitted their culpability, their direct culpability, in the scheduling issues at Phoenix.

[00:05:36] Speaker 02:
Why does that truly weaken the case for negligent supervision?

[00:05:40] Speaker 03:
Sure, because inherent under the Miller analysis at the MSPB, Miller versus I think it's Department of HHS, a supervisor can be held liable for the misconduct of the subordinate.

[00:05:56] Speaker 03:
But that's presuming that the agency views that subordinates have actually engaged in misconduct.

[00:06:02] Speaker 03:
And proof of that would be perhaps discipline of that subordinate or removal of that subordinate.

[00:06:09] Speaker 03:
the subordinates who admitted culpability were promoted or not disciplined at all.

[00:06:16] Speaker 03:
So that goes to the perception that the agency had that their actual actions, their performance of their duties that led to these scheduling issues was not viewed as misconduct by the agency and weakens their case

[00:06:38] Speaker 03:
that the supervisor should be held for conduct of subordinates who were never disciplined for their actions.

[00:06:48] Speaker 03:
And indeed, nationwide, there's evidence that... You lost me on that.

[00:06:55] Speaker 00:
Uh-huh.

[00:06:55] Speaker 00:
So are you saying that an official, a supervisor, cannot be disciplined because of the negligence of the subordinates?

[00:07:07] Speaker 00:
No, but what I'm saying is that... Even where the subordinates acknowledge their own negligence and take responsibility for it?

[00:07:19] Speaker 03:
No, but it's post the strength of the evidence of independent causation.

[00:07:23] Speaker 03:
If the agency had never viewed the subordinates to have engaged in actual misconduct such that they were disciplined, or otherwise there's evidence that

[00:07:37] Speaker 03:
their admissions led to some sort of maybe a performance downgrade.

[00:07:46] Speaker 03:
Then sure, the supervisor should, and it depended on under the Miller factors, be held liable for those subordinates.

[00:07:56] Speaker 03:
But here, nobody viewed those subordinates as having engaged in any misconduct.

[00:08:03] Speaker 00:
That's the problem, isn't it?

[00:08:05] Speaker 00:
I mean, you have all these scheduling problems that are just growing in scope.

[00:08:13] Speaker 00:
And the subordinates are being disciplined.

[00:08:16] Speaker 00:
And the supervisor, Mr. Robinson, isn't either.

[00:08:21] Speaker 00:
I mean, I don't understand your argument in that situation why the supervisor would not be negligent.

[00:08:30] Speaker 03:
Well, the knowledge of the subordinates' actions took place when the IG came in after the false allegations arose from Congressman Miller.

[00:08:41] Speaker 03:
So to the extent they weren't disciplined beforehand, there was no knowledge on behalf of Mr. Robinson that they were shoving paperwork in a drawer or not pulling up emails.

[00:08:56] Speaker 03:
the knowledge came after Mr. Robinson had been placed on leave.

[00:09:00] Speaker 03:
That's when the agency obtained knowledge that these low-level subordinates were not performing their job duties.

[00:09:10] Speaker 03:
So in that case, my argument is that those subordinates, upon learning in May, June, and subsequent time in 2014, if the agency actually

[00:09:25] Speaker 03:
viewed what they had done to have been wrong, to put things in drawers or not respond to emails or put people on the EWL, then they would have been disciplined.

[00:09:37] Speaker 03:
But they were not.

[00:09:38] Speaker 03:
They were promoted.

[00:09:39] Speaker 03:
They were reassigned.

[00:09:41] Speaker 03:
They just went about their various lives.

[00:09:45] Speaker 01:
There were other Phoenix VA officials that were removed along with Mr. Robinson.

[00:09:50] Speaker 01:
Is that right?

[00:09:52] Speaker 03:
Correct.

[00:09:52] Speaker 03:
At different points in time.

[00:09:55] Speaker 03:
So there were three other persons that would be under the CAR 3 factor that were removed.

[00:10:03] Speaker 03:
Ms.

[00:10:03] Speaker 03:
Hellman was removed in December 2014 under the old Title 38.

[00:10:07] Speaker 03:
However, the board did not sustain the scheduling issues for which she was removed upon appeal.

[00:10:17] Speaker 03:
Mr. Curry was removed shortly after.

[00:10:21] Speaker 03:
Mr. Robinson actually at the same time

[00:10:25] Speaker 03:
as Mr. Robinson after Mr. Robinson submitted testimony to Congress about Dr. Shulkin's inaccurate testimony at the field hearing.

[00:10:41] Speaker 01:
And I guess are you saying Mr. Robinson just didn't have any notice about any problems before 2014?

[00:10:49] Speaker 03:
No.

[00:10:50] Speaker 03:
The reason why he went to Phoenix in 2012 was because for 20 years, Phoenix had

[00:10:55] Speaker 03:
was wide known as a hospital with increasing enrollment in 2012.

[00:11:04] Speaker 03:
They had 83,000 unique patients come to Phoenix, but they had no EWL.

[00:11:11] Speaker 03:
They had workarounds.

[00:11:15] Speaker 03:
It was Ms.

[00:11:16] Speaker 03:
Bowers, who was the visiting director, who hired the team in 2012 and 2013, including Mr. Robinson, to try to resolve

[00:11:24] Speaker 03:
what had been long-standing monetary and scheduling issues going back to, I think it was the 90s, when the decision was not to expand the campus and keep it landlocked.

[00:11:37] Speaker 03:
So he was quite aware.

[00:11:40] Speaker 03:
Everyone knew that they were not on the WL, all the way up to then-Secretary Shinseki's office, when Ms.

[00:11:47] Speaker 03:
Bowers would report on the status of the vision, including Phoenix.

[00:11:52] Speaker 03:
So this was the IG knew

[00:11:55] Speaker 03:
Congress knew, everyone known for years.

[00:12:00] Speaker 03:
Did he know that as he was working to fix the scheduling issues that people were sticking things into drawers?

[00:12:08] Speaker 03:
No.

[00:12:09] Speaker 03:
No, he didn't.

[00:12:10] Speaker 00:
Everybody knew that there were problems at the VA facility, correct?

[00:12:14] Speaker 03:
Everyone knew that there were problems in VHA.

[00:12:16] Speaker 00:
Except for Ms.

[00:12:17] Speaker 00:
Robinson?

[00:12:17] Speaker 00:
No.

[00:12:17] Speaker 00:
Except for Ms.

[00:12:18] Speaker 00:
Robinson?

[00:12:19] Speaker 03:
No, that's not at all what we contend.

[00:12:20] Speaker 03:
In fact, the opposite.

[00:12:23] Speaker 03:
Congress and the VA knew that there were problems within VHA writ large for at least since 2005 with the first IG report that talked about how there were workarounds with scheduling issues.

[00:12:39] Speaker 03:
And I think it was vision three on the East Coast.

[00:12:42] Speaker 03:
So certainly one of the things that Mr. Robinson did at the end in the 27th year of his career

[00:12:52] Speaker 03:
was decide to tackle Phoenix to make it a better facility because it had a reputation for, quite frankly, being a mess.

[00:13:00] Speaker 00:
Why don't you go get to the due process argument, because you're running out of time.

[00:13:05] Speaker 03:
Sure.

[00:13:06] Speaker 03:
So as you know, we contend that beginning in May of 2014, statements were made by Mr. Is it lack of due process pre-termination or post-termination?

[00:13:19] Speaker 03:
It's pre-termination.

[00:13:21] Speaker 00:
There was no meaningful opportunity.

[00:13:23] Speaker 00:
Was a due process problem the opportunity to be heard remedied post-termination?

[00:13:27] Speaker 03:
No.

[00:13:27] Speaker 03:
Under Loudermill, a post-termination remedy that was allowed for the employee in Loudermill was not sufficient to overcome the pre-termination lack of meaningful opportunity to present a reply to the allegations to the decision maker.

[00:13:50] Speaker 00:
And in Caperton... Your argument is that he did respond, but the decision was made before that response was taken into account.

[00:14:00] Speaker 03:
Decision was made, yes.

[00:14:03] Speaker 03:
And the decision was made at the time before the first proposed removal was issued at the end of May of 2014.

[00:14:11] Speaker 00:
And... If you were to send this back on the due process issue alone, how did your client win at the end of the day?

[00:14:19] Speaker 00:
What happens if we send it back for due process?

[00:14:21] Speaker 00:
They're going to look at his response?

[00:14:24] Speaker 03:
No, what happens is that it goes back to the agency.

[00:14:29] Speaker 03:
If you find a due process violation, then he gets reinstated.

[00:14:35] Speaker 03:
The remedy is to have a constitutionally proper process.

[00:14:41] Speaker 03:
So they could certainly repropose forward-looking.

[00:14:46] Speaker 02:
That is, he would.

[00:14:49] Speaker 02:
be reinstated into his job as of 2014?

[00:14:54] Speaker 03:
No, they'd get reinstated as if the unconstitutional process had not occurred.

[00:15:00] Speaker 03:
So it's retroactive.

[00:15:02] Speaker 02:
Yes, I'm sorry.

[00:15:03] Speaker 03:
Yes, to 2016.

[00:15:04] Speaker 02:
To 2016.

[00:15:05] Speaker 03:
He was on administrative leave for 18 months.

[00:15:08] Speaker 02:
Oh, I got the two years wrong.

[00:15:10] Speaker 02:
OK, 2016.

[00:15:11] Speaker 02:
And so then it would be 2018.

[00:15:13] Speaker 02:
And then you're saying they might remove him again.

[00:15:16] Speaker 02:
They can.

[00:15:19] Speaker 02:
inquiry into whether have there been due process in the pre-termination 2016 proceeding, he still would have been removed, and so no retrospective relief.

[00:15:38] Speaker 03:
You say he gets his job back.

[00:15:40] Speaker 03:
He gets his job back and retroactive relief, and then the agency can determine

[00:15:46] Speaker 03:
Um, that is sort of the injunctive relief, if you will, with the constitution violations.

[00:15:51] Speaker 03:
So you get to be made whole because of the constitutional violation.

[00:15:57] Speaker 03:
So he would get his job back as of, I believe it was sometime in June of 2016.

[00:16:03] Speaker 00:
What happens then?

[00:16:04] Speaker 00:
There's, there's a rehearing to take into the account.

[00:16:08] Speaker 00:
So usually response.

[00:16:09] Speaker 03:
No, usually what happens is then the agency reproposes.

[00:16:14] Speaker 03:
So there'd be a new proposing slash design official.

[00:16:18] Speaker 03:
Maybe they would change up the charges.

[00:16:21] Speaker 03:
It's basically a do-over.

[00:16:22] Speaker 03:
And then he has an opportunity to respond to a whole new proceeding.

[00:16:27] Speaker 03:
It's a whole new proceeding.

[00:16:31] Speaker 01:
And what would it be about that new proceeding that would give you comfort that now there wouldn't be a due process violation

[00:16:39] Speaker 01:
given your claim that there was a due process violation back in 2016?

[00:16:44] Speaker 03:
Well, it would depend on who the decision maker was.

[00:16:50] Speaker 03:
If it was instead of the deputy secretary, it was in the normal course of business perhaps someone down in his chain of command, the medical center director.

[00:16:59] Speaker 03:
If there's more normal facts and circumstances, due process is an objective analysis.

[00:17:05] Speaker 03:
So you look at the facts and circumstances,

[00:17:08] Speaker 03:
surrounding the actions, so I don't think the VA is looking for my advice, but I treat them like a normal GS-15, like they do in other circumstances, and maybe decide not to remove them, because as you know from our CAR 3 analysis, and also in our due process, they chose not to remove so many other supervisors.

[00:17:33] Speaker 03:
In fact, no other supervisors elsewhere

[00:17:37] Speaker 03:
in the nation, despite the plethora of evidence.

[00:17:40] Speaker 02:
Some of whom resigned?

[00:17:42] Speaker 03:
Is that right?

[00:17:43] Speaker 03:
No.

[00:17:43] Speaker 03:
The judge relied on unsupported testimony from Mr. Gibson about that, and then pointed to two individuals to support Mr. Gibson's testimony that people resigned before they could be fired.

[00:17:56] Speaker 03:
And one was Ms.

[00:17:57] Speaker 03:
Bowers, and one was Ms.

[00:18:00] Speaker 03:
Clathlin, the nurse at Phoenix, and Ms.

[00:18:01] Speaker 03:
Bowers was the visiting director.

[00:18:03] Speaker 03:
There's no evidence that they were ever under investigation.

[00:18:07] Speaker 03:
There's no evidence that they had ever engaged in misconduct.

[00:18:11] Speaker 02:
Can I ask you one quick question?

[00:18:13] Speaker 02:
Was Dr. Shulkin a supervisor of Mr. Gibson?

[00:18:19] Speaker 02:
No.

[00:18:21] Speaker 02:
They were not in some chain in which Shulkin was above Gibson?

[00:18:27] Speaker 03:
Depended on who you ask.

[00:18:28] Speaker 03:
When I asked Dr. Shulkin at deposition, he said he reported to the secretary when I asked.

[00:18:35] Speaker 03:
He was deputy at the time?

[00:18:36] Speaker 03:
No, he was the undersecretary for VHA.

[00:18:39] Speaker 03:
But when I asked Mr. Gibson, he believed that Dr. Shulkin reported to him.

[00:18:44] Speaker 03:
And he reported to the secretary.

[00:18:48] Speaker 02:
Obviously, Gibson thought Shulkin reported to Gibson, not the other way around.

[00:18:52] Speaker 03:
Yes.

[00:18:53] Speaker 03:
Gibson was the self-described chief operating officer of VHA.

[00:19:11] Speaker 04:
Good morning, Your Honors.

[00:19:11] Speaker 04:
May it please the Court?

[00:19:13] Speaker 04:
This case is about accountability for serious failures at the top of the Phoenix VA Medical Center.

[00:19:20] Speaker 04:
The case was heard by a very experienced administrative judge of more than 30 years with the MSPB, who determined that the charges were sustained.

[00:19:28] Speaker 00:
What happens if we were just to say that we were to affirm on the negligence and then

[00:19:37] Speaker 00:
remand or reverse on the due process affirmative defense.

[00:19:44] Speaker 04:
If the court affirms the charges but finds there's been a due process violation, that's the constitutional violation and Mr. Robinson gets his job back and the agency can choose whether they want to remove him all over again.

[00:19:56] Speaker 04:
That's the answer.

[00:19:57] Speaker 00:
So if they want to remove it, they got to start the process?

[00:20:01] Speaker 04:
If the court finds a due process violation, yes.

[00:20:04] Speaker 04:
Of course, in this case, we would argue there is no due process violation.

[00:20:07] Speaker 04:
The petitioner, Mr. Robinson's attorneys, have raised due process and made a couple of different types of arguments that tie into that.

[00:20:17] Speaker 04:
The first one is that Mr. Robinson's response was not given meaningful consideration by Mr. Gibson.

[00:20:25] Speaker 04:
And the administrative judge addressed that, and that specific claim basically turned on a credibility determination.

[00:20:31] Speaker 02:
Do you agree that the Constitution required

[00:20:36] Speaker 02:
the Mr. Gibson to give meaningful consideration to the response?

[00:20:41] Speaker 04:
Yes.

[00:20:42] Speaker 04:
The Cleveland versus Latter Mill requires, it's minimal.

[00:20:46] Speaker 04:
It is an opportunity.

[00:20:47] Speaker 02:
An opportunity to respond has to be something other than empty.

[00:20:51] Speaker 04:
Exactly.

[00:20:51] Speaker 04:
It has to be some kind of opportunity to respond that's actually heard.

[00:20:55] Speaker 04:
But in this case, that issue alone, that single strand of the due process argument really turned on credibility determination.

[00:21:02] Speaker 04:
Mr. Gibson testified.

[00:21:04] Speaker 02:
About what he said to the New York Times.

[00:21:06] Speaker 04:
No, no.

[00:21:07] Speaker 04:
That's a separate argument.

[00:21:08] Speaker 04:
It's about what Mr. Gibson testified about how he went through the evidence.

[00:21:12] Speaker 04:
He testified before the administrative judge at quite a lot of length.

[00:21:16] Speaker 04:
And he testified about what he did, how many hours he spent, what his thought process was.

[00:21:22] Speaker 04:
Robertson.

[00:21:23] Speaker 04:
I'm sorry.

[00:21:23] Speaker 04:
I misspoke.

[00:21:24] Speaker 04:
Of course I'm talking about Mr. Gibson.

[00:21:26] Speaker 04:
Yes.

[00:21:26] Speaker 04:
Mr. Gibson testified for quite a long time.

[00:21:28] Speaker 04:
His testimony encompasses some 250 pages.

[00:21:31] Speaker 04:
He went through his entire process of

[00:21:33] Speaker 04:
what he considered, what was important to him, how he understood the charges.

[00:21:37] Speaker 00:
Doesn't that raise a due process issue in that the analysis seems to be built entirely on Mr. Gibson's allegations and claims?

[00:21:52] Speaker 04:
Not at all, Your Honor, because the allegation is that Mr. Gibson didn't meaningfully consider Mr. Robinson's response.

[00:21:59] Speaker 04:
Only Mr. Gibson could address that

[00:22:01] Speaker 04:
and testify credibly, according to the administrative judge, as to what consideration he gave it.

[00:22:06] Speaker 04:
So that was sort of one strain of the due process argument the petitioners raised.

[00:22:11] Speaker 04:
And that really, that part of it turned on a credibility determination.

[00:22:15] Speaker 00:
A second argument had to do with- Where does the AJ point in Mr. Gibson's testimony or his information that indicates that he took under consideration Mr. Robinson's response

[00:22:34] Speaker 04:
So that is in the administrative record at Appendix 52, and he addressed Mr. Gibson's testimony specifically.

[00:22:50] Speaker 04:
Gibson testified that he spent several weekends pouring over the evidence.

[00:22:55] Speaker 04:
He stated that he, quote, got into the weeds on disciplinary matters, recognizing that they affect not just the agency, but also the appellants, and that he did not take this case

[00:23:04] Speaker 04:
Lightly, he quotes Mr. Gibson quite a lot.

[00:23:08] Speaker 04:
He took his evidence to review the evidence, including the appellant's response, and granted the appellant's request for an extension to respond, showing that he was willing to deliberate at his own pace and resist any complaints about delays.

[00:23:21] Speaker 04:
He testified that he did not predetermine the outcome of the case and gave it a lot of deliberation.

[00:23:26] Speaker 04:
This continues, I found Gibson to be a thoughtful, credible witness.

[00:23:30] Speaker 04:
In addition, I note that he did not sustain one of the specifications in Charge 3.

[00:23:34] Speaker 04:
I find that he considered the record as a whole and kept an open mind.

[00:23:39] Speaker 04:
So that, again, goes to one strand of the due process argument that petitioners raised.

[00:23:45] Speaker 04:
Petitioners also raised the idea that the administrative judge applied an incorrect test, but the administrative judge applied the test that's been applied by the board.

[00:23:55] Speaker 00:
What about the comment to the New York Times that predated the removal, but the comment that Mr. Robinson was going to be removed?

[00:24:04] Speaker 04:
So there's sort of two aspects to that.

[00:24:07] Speaker 04:
One also ties into credibility, because Mr. Gibson emphatically denied having made that statement.

[00:24:13] Speaker 04:
And in fact, I have to quote what he said in his testimony, because it's sort of very memorable.

[00:24:18] Speaker 04:
He said in direct response to whether he had made that statement, appendix page, yes, 10740 of the administrative record.

[00:24:29] Speaker 02:
Oh, is that a joint appendix number?

[00:24:32] Speaker 04:
That is a joint appendix, yes.

[00:24:34] Speaker 02:
10740.

[00:24:34] Speaker 04:
10740.

[00:24:35] Speaker 04:
He was asked about the New York Times article.

[00:24:37] Speaker 04:
He was specifically asked about whether he made that statement.

[00:24:40] Speaker 04:
He emphatically denied saying it, saying, quote, this isn't my first rodeo.

[00:24:45] Speaker 04:
I've got more sense than that, close quote.

[00:24:48] Speaker 04:
A reference to the fact that Mr. Gibson has risen through the ranks.

[00:24:51] Speaker 04:
He became, obviously, CEO of the VA.

[00:24:54] Speaker 04:
This is not his first time removing someone he knows well enough not to prejudge it and certainly not to tell the New York Times that he prejudged something.

[00:25:02] Speaker 04:
And again, the administrative judge credited his testimony that he did not make that statement to the New York Times, did not prejudge the case, came at the case, granted his extension, and the administrative judge found that he gave meaningful consideration to his reply.

[00:25:19] Speaker 04:
He also considered the alternate due process argument that the petitioner had made

[00:25:24] Speaker 04:
which was that the environment, because of statements by the President and statements by Congress, created an environment so that the risk of unfairness was intolerably high.

[00:25:33] Speaker 04:
The administrative judge applied that test and looked at each of those statements that were identified by the petitioner and found that all those statements, those of the President as well as the Congress members, simply indicated that individuals who were found to have committed wrongdoing

[00:25:50] Speaker 04:
should be removed but they didn't prejudge whether Mr. Robinson in fact had committed wrongdoing.

[00:25:55] Speaker 04:
That was the issue before Mr. Gibson as the proposing and then deciding official.

[00:26:00] Speaker 04:
That was the decision that he made and then of course that was the question that was reviewed by the administrative judge.

[00:26:09] Speaker 02:
due process contention that rests on the fact that Mr. Gibson decided to be the deciding official himself in 2016, whereas in the first round in 2014, there was separation between the proposing official and the deciding official.

[00:26:28] Speaker 02:
And that was a way of ensuring that the desired result was going to be achieved.

[00:26:36] Speaker 04:
There is an argument about that.

[00:26:38] Speaker 04:
There's really no evidence.

[00:26:39] Speaker 04:
So the petitioner characterizes that as indicative that there wasn't going to be.

[00:26:44] Speaker 02:
Is there any general problem with the proposing official being the same?

[00:26:47] Speaker 02:
No.

[00:26:47] Speaker 04:
There have been other cases before this court where the same individual has served as the proposing and the deciding official, and they've been sustained.

[00:26:54] Speaker 04:
It is sometimes done.

[00:26:56] Speaker 04:
It is more often done the other way.

[00:26:57] Speaker 04:
But we have to remember, in this case, I think I heard counsel

[00:27:02] Speaker 04:
suggested in normal cases it would perhaps be the director of the medical facility, Mr. Robinson's supervisor, who would be the proposing official.

[00:27:09] Speaker 04:
But of course in this case that was Ms.

[00:27:10] Speaker 04:
Hellman and she had already been removed.

[00:27:13] Speaker 04:
So it was not unusual in that instance, absent the immediate supervisor, for Ms.

[00:27:20] Speaker 04:
DeGibson to come into the situation and say, I'm going to take control.

[00:27:23] Speaker 04:
I'm going to be the proposing official, make sure that this is looked at carefully, and then it would be, I think having made himself the proposing official, it actually would have been a little bit odd maybe to make somebody, I mean, he at that point was the acting secretary, I think, of the VA, to make somebody else the deciding official, maybe put them in the weird position of having to overrule someone much higher than them.

[00:27:44] Speaker 04:
So again, it's not, I think it's more often that you have a different person than proposing and deciding.

[00:27:51] Speaker 04:
it happens that there is the same person that is the proposing and the deciding official.

[00:27:55] Speaker 04:
This was a high visibility case.

[00:27:57] Speaker 04:
It was a person involving a very high level person.

[00:28:00] Speaker 04:
So I think Mr. Gibson, he stated that he just decided to do that.

[00:28:03] Speaker 04:
There's really nothing in the record that explains exactly why he decided that.

[00:28:08] Speaker 04:
He just wasn't asked that, I guess, by either counsel.

[00:28:10] Speaker 04:
And just the fact that he did that doesn't suggest any impropriety.

[00:28:15] Speaker 02:
You just mentioned high visibility.

[00:28:17] Speaker 02:
I guess another word for that is notoriety, which I think is disgusting or itemized in Douglas.

[00:28:25] Speaker 02:
Can you explain why that ought to count in the penalty?

[00:28:29] Speaker 02:
And don't just say Douglas says it.

[00:28:31] Speaker 04:
That was going to be my first answer.

[00:28:33] Speaker 02:
I think it was.

[00:28:35] Speaker 02:
What was the explanation?

[00:28:36] Speaker 02:
I can conjure some, but I guess I'm interested.

[00:28:40] Speaker 02:
Because there's obviously something of a danger that when the media and the politicians get highly concerned about something, maybe pressures are felt that might divert one from a clear-eyed, fair course.

[00:28:57] Speaker 04:
Right.

[00:28:57] Speaker 04:
And I think due care has to be paid to make sure that that doesn't happen.

[00:29:01] Speaker 04:
And if there was evidence of that happening, that would be a bad thing.

[00:29:03] Speaker 04:
But on the other hand, I think that it is

[00:29:07] Speaker 04:
It is right that Douglas includes that as one of those factors.

[00:29:09] Speaker 04:
It is appropriate that when a particular act of misconduct brings really shame upon an agency.

[00:29:17] Speaker 04:
I mean, this is our Federal government.

[00:29:19] Speaker 04:
We want our citizens to be able to look up to our Federal government, be proud of it.

[00:29:22] Speaker 04:
And it is, it is harmful to the agency's ability to be effective going forward if

[00:29:31] Speaker 02:
If nobody trusted to take care of it.

[00:29:33] Speaker 04:
Yes, that's much better way of saying it.

[00:29:34] Speaker 04:
It's going in that direction, but yes.

[00:29:36] Speaker 04:
And so I think it is fair to consider that, as long as DoCare is also taken to make sure that that just didn't result in undue pressure to take a removal that would be otherwise inappropriate.

[00:29:49] Speaker 02:
Can I change the topic and ask you to address one aspect of the whistleblower reprisal?

[00:29:55] Speaker 02:
Yes.

[00:29:55] Speaker 02:
Claim in particular.

[00:29:58] Speaker 02:
Council focused on the

[00:30:01] Speaker 02:
administrative judges reasoning to find that it was clear that it was clear and convincing evidence that this action would have been taken even if Mr. Robinson had not criticized Dr. Shulkin's testimony to the Senate and that

[00:30:22] Speaker 02:
Administrative judge finds, now I can't find the page, but says Gibson had no motive to retaliate because the criticism was of Shulkin, not Gibson.

[00:30:36] Speaker 02:
I guess this is on page 48 of the appendix.

[00:30:40] Speaker 02:
That seems curious.

[00:30:43] Speaker 02:
I mean, a highly, highly placed official in the department

[00:30:49] Speaker 02:
is accused of making misrepresentations or inaccuracies, I forget the exact, to the overseeing legislature.

[00:31:00] Speaker 02:
And another high-ranking official doesn't have a motive to protect the institution by going after

[00:31:10] Speaker 02:
just doesn't have a motive.

[00:31:11] Speaker 02:
And that just on that one particular finding to to take action against the person who's harmed the institution by going against not him personally, but somebody comparably of high stature in in the institution.

[00:31:30] Speaker 04:
With all due respect, I think I think that is a bit of a stretch.

[00:31:33] Speaker 04:
Perhaps I would suggest that the disclosure was a very, very specific disclosure.

[00:31:39] Speaker 04:
It wasn't

[00:31:40] Speaker 04:
You know, Mr. Shulkin is doing a really bad job, and the VA is doing a really bad job.

[00:31:45] Speaker 02:
But the VA couldn't talk to me because either OIG or DOJ was investigating or something like that.

[00:31:51] Speaker 02:
Was that the...?

[00:31:52] Speaker 04:
It was a very specific statement that Mr. Shulkin had made about the date that saying that the VA could not interview Mr. Robinson because the OIG investigation was still ongoing.

[00:32:06] Speaker 04:
But in fact, according to Mr. Robinson, and I think it's true,

[00:32:10] Speaker 04:
the date it ended.

[00:32:11] Speaker 04:
So it was a very specific misstatement.

[00:32:13] Speaker 00:
Well, there was a criminal investigation from DOJ also involved, right?

[00:32:16] Speaker 04:
I'm sorry, Your Honor.

[00:32:17] Speaker 00:
There was a criminal investigation, a DOJ criminal investigation?

[00:32:20] Speaker 04:
There was.

[00:32:21] Speaker 04:
And for that reason, the administrative judge actually said, I'm not even sure that I agree that Mr. Shulkin was inaccurate in his testimony to Congress, because there were these other investigations going on.

[00:32:34] Speaker 00:
And that investigation was over also.

[00:32:37] Speaker 00:
I mean, and apparently the evidence shows that the officials knew that that investigation had been closed.

[00:32:44] Speaker 00:
No criminal action was taken against them.

[00:32:47] Speaker 04:
There were three different investigations that were ongoing.

[00:32:49] Speaker 04:
There was the OIG investigation.

[00:32:51] Speaker 04:
There was a DOJ investigation.

[00:32:53] Speaker 04:
And then there was an OAR, Office of Accountability Review investigation, which was sort of an internal agency investigation.

[00:32:58] Speaker 04:
And I don't recall whether all three of them were done.

[00:33:01] Speaker 04:
But again, because the Shulkin's testimony referred specifically

[00:33:06] Speaker 04:
to the OIG investigation, but there were these other ones.

[00:33:09] Speaker 04:
The administrative judge said, I'm not even sure I would find that this was an inaccurate statement or a misrepresentation to Congress.

[00:33:16] Speaker 04:
But if it was, it was a very specific disclosure of a misrepresentation of testimonies to Congress.

[00:33:24] Speaker 04:
It was not something that reflected on the agency as a whole, as Judge Tender was suggesting, if Mr. Shulkin had

[00:33:33] Speaker 04:
had said or done something, and then Mr. Robinson disclosed.

[00:33:37] Speaker 00:
A disclosure that a top administration official has testified incorrectly, if not falsely, before Congress, that doesn't reflect the agency as a whole?

[00:33:47] Speaker 04:
I would say no.

[00:33:47] Speaker 04:
I would say, Your Honor, I would expect that it's a mint.

[00:33:50] Speaker 00:
If you have a secretary, not in this case, but let's say you have a secretary of a department that misleads Congress, either through inaccurate information or deliberate

[00:34:02] Speaker 00:
falsehoods.

[00:34:03] Speaker 00:
You don't think that doesn't reflect on the agency?

[00:34:07] Speaker 00:
And what about our cases, our line of cases like Miller versus DOJ, that doesn't build a presumption, but almost builds a presumption that when you have whistle-blowing disclosure statements that are being made that implicated the DVA's capacities as managers and employees, as well as the DVA's

[00:34:31] Speaker 00:
perceived deceptive to the Senate committee.

[00:34:35] Speaker 00:
Isn't that applicable here?

[00:34:37] Speaker 04:
Well, I think, Your Honor, that case actually is a really good example of why this is different.

[00:34:41] Speaker 04:
That implicated the VA's management.

[00:34:43] Speaker 04:
So that's a big, broad thing that reflects on the entire agency as opposed to one individual's testimony that it was not Mr. Gibson's testimony.

[00:34:53] Speaker 04:
So his, I think it's a very, very, very attenuated to suggest

[00:34:58] Speaker 04:
that Mr. Gibson would be motivated to retaliate based on that.

[00:35:02] Speaker 00:
His disclosure was that that testimony was not correct.

[00:35:06] Speaker 04:
Yes, that was his disclosure, that Mr. Shulkin's testimony allegedly was incorrect.

[00:35:11] Speaker 00:
And we have cases like Miller versus DOJ and others that indicate that at that point in time, there's, as I said, not a presumption, but I think it's pretty strong that that type of whistleblowing activities go directly against the DVA's capacity

[00:35:28] Speaker 00:
managers and employers.

[00:35:29] Speaker 00:
It affects the entire agency.

[00:35:33] Speaker 00:
And so you have the top officials that have now a motive to retaliate.

[00:35:39] Speaker 04:
And, Your Honor, and I guess I would just say with all due respect, I think there is a difference between a disclosure that highlights mismanagement of an agency where, yes, another high-level agency official might sort of take that that reflects on him, too, and have some motivation to retaliate.

[00:35:55] Speaker 04:
versus a very specific disclosure that an individual made a statement, and it's not the individual that's being alleged to be taking retaliatory measures.

[00:36:05] Speaker 00:
Thank you.

[00:36:06] Speaker 04:
Thank you, Your Honor.

[00:36:12] Speaker 00:
Ms.

[00:36:12] Speaker 00:
Perkins, you were out of time, but I'm going to show you for three minutes.

[00:36:15] Speaker 03:
Oh, OK.

[00:36:16] Speaker 03:
Thank you.

[00:36:17] Speaker 03:
I just had a few points.

[00:36:20] Speaker 03:
You know, the discussion about Mr. Gibson's credibility in Caperton, the Supreme Court reminds us that credibility aside, you don't even have to go down that road to address the credibility of the decision-maker, because it's not relevant.

[00:36:37] Speaker 02:
So what were the factors here that would be the counterpart of the Caperton factors, if that was some sort of campaign contribution or something?

[00:36:50] Speaker 02:
that created an inherent structural bias that simply couldn't be overlooked and that even with testimony about, oh, I never would have.

[00:37:00] Speaker 03:
We would contend it's like Cinderella and City of Chicago, where you had, in that case, Mr. Gibson, while acting and as Deputy Secretary.

[00:37:13] Speaker 03:
Well, granted, as counsel said, it started off with, we'll investigate and take action if warranted.

[00:37:23] Speaker 03:
By the summer of 2014, we're in the process.

[00:37:26] Speaker 03:
This is after Secretary Shinseki was forced to resign.

[00:37:30] Speaker 03:
And it was like we are in the process of removing.

[00:37:34] Speaker 03:
And then as it revealed to the New York Times the day before even Mr. Robinson received the proposed removal, this is going to get upheld on appeal.

[00:37:45] Speaker 03:
And granted, he did deny saying those words at hearing, but he also testified he couldn't remember what he said to the reporter while not denying that he spoke to the reporter.

[00:37:58] Speaker 03:
And he also never denied his other statements to the reporter about how removing, which were quoted in that same article, how removing Mr. Gibson would allow the agency to move past the wait time scandals of 2014 and that their continued employment had served as a distraction.

[00:38:21] Speaker 03:
That's CAR 2 right there.

[00:38:23] Speaker 03:
That is a COO.

[00:38:25] Speaker 03:
evidencing his motive as someone who had just received correspondence from Senator McCain in January 2016, lambasting him for the need to correct Mr. Shulkin's testimony.

[00:38:43] Speaker 03:
The VA apparently submitted corrected testimony after the fact.

[00:38:47] Speaker 03:
And wanting to know when the individuals, i.e.

[00:38:51] Speaker 03:
Mr. Robinson and Mr. Curry, the persons, as he characterized,

[00:38:55] Speaker 03:
responsible for the deaths of veterans were going to get removed.

[00:39:03] Speaker 03:
That happened in January 2016.

[00:39:05] Speaker 03:
By March, she's announcing to the press, I've done it.

[00:39:08] Speaker 03:
So this is why you need the objective, looking at all the facts and circumstances, and not just self-serving testimony hearing by someone who may not even realize his subconscious bias, which is

[00:39:25] Speaker 03:
Also, one thing I would note is that... I need you to conclude.

[00:39:31] Speaker 00:
You can make a short conclusion.

[00:39:33] Speaker 00:
Okay.

[00:39:34] Speaker 03:
Otherwise... I would caution on the notoriety.

[00:39:39] Speaker 03:
As this court is aware, there's in this age, the fake allegations that fester for years.

[00:39:48] Speaker 03:
And to hold that against my client when there was no evidence is quite a disservice.

[00:39:54] Speaker 03:
And I thank you for your time.