[00:00:00] Speaker 04:
Okay, the next case before the court, Seiler versus EPA.

[00:00:05] Speaker 04:
It is an appeal from a decision of the Merit Systems Protection Board.

[00:00:23] Speaker 04:
You're going to have to help me with the pronunciation of your name.

[00:00:28] Speaker 04:
Bui?

[00:00:29] Speaker 04:
Bui.

[00:00:30] Speaker 04:
Bui.

[00:00:30] Speaker 04:
Okay.

[00:00:31] Speaker 04:
Guess I got it right.

[00:00:33] Speaker 04:
So Ms.

[00:00:33] Speaker 04:
Bui, you want five minutes for rebuttal?

[00:01:08] Speaker 04:
Okay May I please the court?

[00:01:12] Speaker 03:
I'm sorry your honor He put 15 minutes on the clock and I thought I had reserved five minutes for well, you'll get the yellow light at five minutes.

[00:01:19] Speaker 03:
Oh, gotcha.

[00:01:20] Speaker 03:
Okay?

[00:01:22] Speaker 03:
May I please the court?

[00:01:23] Speaker 03:
My name is Molly Bowie.

[00:01:24] Speaker 03:
I represent the petitioner Matthew Seiler with me at council table is Robert Salden Mr. Seiler is the petitioner in this case and he was removed from his position as the

[00:01:36] Speaker 03:
special agent with the Environmental Protection Agency after he made disclosures, protected disclosures, about his former supervisor in the Chicago area office who was special agent in charge of Ash.

[00:01:51] Speaker 03:
Mr. Seiler disclosed that he had twice observed Mr. Ash appearing intoxicated while on duty, and he took a photograph of Mr. Ash asleep at his desk.

[00:02:03] Speaker 03:
which he distributed to other members of the Chicago office.

[00:02:07] Speaker 04:
Let me ask you.

[00:02:08] Speaker 04:
Yes.

[00:02:09] Speaker 04:
You've got several errors that you claim, one of which is this issue relating to the claim of privilege with respect to documents that were not turned over.

[00:02:18] Speaker 03:
Yes, Your Honor.

[00:02:20] Speaker 04:
How do you believe that the information in those documents could impact the case?

[00:02:26] Speaker 03:
Well, so Mr. Seiler was first subject to a misconduct investigation by the Office of Inspector General.

[00:02:34] Speaker 03:
That OIG report was issued in January of 2015.

[00:02:41] Speaker 03:
Six months go by.

[00:02:42] Speaker 03:
Mr. Seiler is on light duty during that time frame.

[00:02:47] Speaker 03:
And he then makes his disclosures in June of 2015 about Mr. Ash.

[00:02:53] Speaker 03:
Two weeks later, an administrative investigation, which we refer to in the brief as the Piqua investigation, is initiated.

[00:03:02] Speaker 03:
And the document that's at issue,

[00:03:04] Speaker 03:
was a draft suspension that has Director Parker's name on it.

[00:03:11] Speaker 05:
Do I recall correctly, though, that there's more than just one document?

[00:03:15] Speaker 05:
There's a draft suspension and a draft removal?

[00:03:18] Speaker 03:
There may have been a draft removal, but there were several drafts that were produced with the agency's discovery documents.

[00:03:27] Speaker 03:
Some of the draft removal documents... And you saw them all?

[00:03:31] Speaker 03:
Yes, Your Honor.

[00:03:32] Speaker 00:
Was there a removal?

[00:03:34] Speaker 03:
Yes, but I think that some of the draft removals that were produced in Discovery were versions of the removal that was ultimately given to Mr. Seidler.

[00:03:46] Speaker 04:
So what your view of these privilege documents and the emails is that it would allow you to better present the timeline of when these decisions were made?

[00:03:59] Speaker 03:
In essence, yes, and I can explain because the

[00:04:03] Speaker 03:
Draft suspension, that's the crux of our argument.

[00:04:09] Speaker 03:
It appears to have been based on the OIG report of investigation that was issued in January 2015.

[00:04:16] Speaker 03:
It mirrors the facts in the OIG investigation.

[00:04:20] Speaker 03:
The charges mirror the OIG investigation.

[00:04:23] Speaker 03:
And it logically doesn't make sense that someone would have drafted a proposed suspension based on an OIG investigation.

[00:04:33] Speaker 03:
if all along they were planning to conduct a secondary administrative investigation in Mr. Seiler.

[00:04:40] Speaker 04:
But what about the fact that we have a change in decision makers?

[00:04:43] Speaker 04:
Can't the new decision maker have the right to look anew at the circumstances?

[00:04:48] Speaker 03:
Sure, but Mr. Parker was still at the agency in June of 2015 when Mr. Seiler made his protective disclosures.

[00:04:58] Speaker 05:
Is it true that those documents, this draft suspension, and even the draft removals are all outdated?

[00:05:05] Speaker 03:
I think the draft removals are.

[00:05:07] Speaker 03:
Definitely the draft suspension is undated.

[00:05:13] Speaker 03:
What I have been able to deduce from the facts that are included is that that was based on the OIG investigation, not on the administrative investigation.

[00:05:24] Speaker 03:
So what it looks like is the agency was prepared or at least contemplating going forward with a proposed suspension of Mr. Seiler based on the OIG investigation right up until he made his protected disclosures in June of 2015, at which point they decided to conduct this administrative investigation.

[00:05:46] Speaker 03:
That conflicts with the testimony that was given by EPA managers at the hearing

[00:05:53] Speaker 03:
that they had been talking about doing this administrative investigation for six months.

[00:05:59] Speaker 03:
And there's also absolutely no documentation of any of these conversations that were supposedly taking place in that time period.

[00:06:07] Speaker 05:
Do I, I'm looking at the appendix at J in 1667, and it's talking about the draft notice of proposed removal that you, sorry, the draft notice of proposed suspension that you started talking about.

[00:06:20] Speaker 05:
And it says it's from Douglas Parker to Matthew Seiler, but it also says there's a notice of proposed removal, and that's also from Douglas Parker to Matthew Seiler, right?

[00:06:29] Speaker 05:
Same people?

[00:06:31] Speaker 03:
I believe that's correct, Your Honor, that there was an undated,

[00:06:36] Speaker 03:
draft proposed removal that had Mr. Parker's name on it, and there was the undated draft proposed suspension that had Mr. Parker's name on it.

[00:06:45] Speaker 03:
But part of our issue with this is that we were obviously not given the document, well, we were given the document and then the agency claimed that it was privileged, never made any showing of how it was privileged at all.

[00:07:03] Speaker 03:
And because we were given these documents immediately before the hearing, and the agency council had represented to me during discovery that Mr. Parker was not involved in the disciplinary process against Mr. Seidler.

[00:07:16] Speaker 03:
So we did not depose Mr. Parker.

[00:07:19] Speaker 03:
I didn't call him as a witness at hearing.

[00:07:22] Speaker 03:
I didn't propound any interrogatories about Mr. Parker.

[00:07:27] Speaker 03:
We were deprived of any opportunity to investigate

[00:07:30] Speaker 03:
Why his name was on a draft proposed suspension?

[00:07:33] Speaker 03:
When was this created?

[00:07:35] Speaker 03:
Why was it created?

[00:07:36] Speaker 04:
You've been given timely disclosure, and there had not been a privilege claim that we'll talk to your friend on the other side about, but that you believe you could have questioned the witness about when all this happened and where the change came from.

[00:07:51] Speaker 03:
Absolutely.

[00:07:52] Speaker 00:
And you elected not to call Parker based on what you took as a representation from the council, right?

[00:08:00] Speaker 03:
Yes, because Mr. Parker is no longer with the federal government.

[00:08:04] Speaker 03:
So I would have had to subpoena him.

[00:08:06] Speaker 03:
And I approached the agency council and said, I haven't seen anything with Mr. Parker's name on it.

[00:08:12] Speaker 03:
Up to this point, the discovery that had been produced did not have Mr. Parker's name on it.

[00:08:18] Speaker 03:
So I said, I am asking you, was he involved in the disciplinary process?

[00:08:26] Speaker 03:
Is he somebody that I need to be

[00:08:28] Speaker 03:
getting the subpoena process.

[00:08:29] Speaker 00:
Well, did the government know about these documents at the time that representation was made to you?

[00:08:33] Speaker 03:
I assume the government did know about those documents.

[00:08:36] Speaker 03:
They've claimed that they're attorney-client privileged.

[00:08:38] Speaker 03:
Well, I mean, they dropped out in a sweep, right?

[00:08:43] Speaker 03:
They were produced as part of a response to our electronic discovery.

[00:08:47] Speaker 00:
Right, in a dump.

[00:08:48] Speaker 03:
That's right, but there were only 1,200 documents.

[00:08:50] Speaker 03:
This wasn't a 10,000-page document production.

[00:08:53] Speaker 03:
It was a very small

[00:08:54] Speaker 03:
limited documents.

[00:08:55] Speaker 00:
My word you're going is to say, if you'd known about these documents at the time the government told you that Parker wasn't involved, you might have said, hey, wait a second.

[00:09:02] Speaker 00:
I'm not certain I buy that.

[00:09:04] Speaker 00:
I want to call him.

[00:09:05] Speaker 03:
Absolutely.

[00:09:05] Speaker 03:
And even if we had just been given a privilege log that said, because one of the things when this issue about the attorney-client privilege came up, I said, well, can you at least give me the transmitting email?

[00:09:19] Speaker 03:
The email, because this document was produced from someone's email account.

[00:09:23] Speaker 03:
We know that because it was part of the e-discovery production that was limited to four managers' email accounts.

[00:09:30] Speaker 03:
So it had to have come from someone's email.

[00:09:32] Speaker 03:
So I said, can I have at least the transmitting email that shows who sent it, who it went to, and the date?

[00:09:42] Speaker 03:
If you're claiming the document is privileged, fine, but I want the time information to your point about it being undated and establishing the timeline.

[00:09:51] Speaker 03:
The agency counsel refused to provide the transmitting email, and that prompted the phone call to chambers with the administrative judge.

[00:10:00] Speaker 03:
And also, we weren't given any privilege log, which also would have had the same information about the date, who sent it, who received it, and at least would have set out some colorable basis for the attorney-client privilege.

[00:10:14] Speaker 03:
We never received any of that information.

[00:10:16] Speaker 04:
Let's move on to the car factors.

[00:10:19] Speaker 04:
You focus on car factor three and the comparison with Ash.

[00:10:24] Speaker 04:
And you argue that the wrong legal standard was employed, right?

[00:10:30] Speaker 03:
Well, in the sense that the judge gave very limited weight to Mr. Ash being a proper comparator to Mr. Birdside.

[00:10:39] Speaker 04:
She seemed to say that they had to be identical, not just similarly situated.

[00:10:44] Speaker 03:
That's correct.

[00:10:45] Speaker 03:
Even though they had the same deciding official,

[00:10:50] Speaker 03:
same proposing official, at least one of the charges was identical, conduct unbecoming.

[00:10:57] Speaker 03:
And Mr. Ash had multiple specifications under the charge of conduct unbecoming.

[00:11:03] Speaker 03:
The judge said because the type of misconduct that they allegedly participated in was too dissimilar, she gave it very little weight under Carfactor 3.

[00:11:16] Speaker 04:
The focus on the dissimilarity by the ALJ was that one was an outside activity that affected the perception of the public of the agency, and the other was all internal.

[00:11:33] Speaker 04:
How do you respond to that?

[00:11:35] Speaker 03:
Well, Your Honor, I think that if the public, as they do know now, knew that a supervisor at the EPA

[00:11:46] Speaker 03:
Criminal Inspection Division, Criminal Investigation Division, was groping female employees, having sexual intercourse in his office, using vulgar, sexually... What about AJ's finding where she said, look, maybe Mr. Ash should be more severely punished, but I give this less weight because they're different from one another.

[00:12:11] Speaker 05:
I mean, I understand what you're saying about Mr. Ash.

[00:12:13] Speaker 05:
Yes.

[00:12:14] Speaker 05:
The question here is, I consider one comparator, and I think it deserves less weight.

[00:12:20] Speaker 05:
How do we get involved in that?

[00:12:21] Speaker 05:
We're supposed to determine, as a legal matter, how much weight should be given to a particular comparator?

[00:12:28] Speaker 03:
Well, I think that the presidential decisions of this court, including Whitmore, including Miller v. DOJ, say that, first of all, let's keep in mind it was the agency's burden at this point.

[00:12:39] Speaker 03:
At this point of the process, we're talking about the agency has a burden of showing by clear and convincing evidence that they take the same types of actions against non-whistleblowers that they take against whistleblowers.

[00:12:53] Speaker 03:
And the agency absolutely failed to meet that burden.

[00:12:56] Speaker 03:
And I feel like the AJ turned the burden around on us to say, you have to show that Mr. Ash was similarly situated in all these different ways, as opposed to saying to the agency, show me other non-whistleblowers.

[00:13:08] Speaker 03:
who were investigated for the same types of things that Mr. Seiler was investigated for, who were removed for the same types of things he was investigated for, who were subject to an administrative investigation following an OIG investigation.

[00:13:23] Speaker 03:
That type of evidence simply was not produced.

[00:13:26] Speaker 05:
What about another argument that you made was that under Card Factor 3, the ADA should not have considered or given so much weight to the existence of whistleblowers who hadn't in fact engaged in any wrongdoing and how they weren't punished.

[00:13:42] Speaker 05:
Yes.

[00:13:44] Speaker 05:
Why shouldn't that be considered at all, the agency's treatment of similarly situated whistleblowers, even though they aren't similarly situated in that they didn't engage in any misconduct?

[00:13:57] Speaker 03:
Well, not only were they not similarly situated in that they didn't engage in misconduct, they weren't similarly situated in terms of their chain of command.

[00:14:05] Speaker 00:
That's not true with regard to the initial whistleblower.

[00:14:10] Speaker 00:
Ms.

[00:14:11] Speaker 00:
Weaver.

[00:14:11] Speaker 00:
But to focus on her, she's the one who actually blew the whistle.

[00:14:15] Speaker 03:
That's correct.

[00:14:16] Speaker 00:
Your client is a secondary for one of the others, right?

[00:14:21] Speaker 03:
Yes.

[00:14:21] Speaker 00:
And so why is it inappropriate to, and she was not, you know, she blew the whistle, right?

[00:14:29] Speaker 03:
She did.

[00:14:30] Speaker 03:
was one of the people who gave testimony about this.

[00:14:33] Speaker 00:
Right.

[00:14:33] Speaker 00:
And if the agency was going to retaliate against whistleblowers, why wouldn't they retaliate against her?

[00:14:37] Speaker 00:
She's the one that started it.

[00:14:39] Speaker 03:
Well, our view of that is that Mr. Seiler was in a uniquely vulnerable position.

[00:14:45] Speaker 03:
He was already on light duty status.

[00:14:48] Speaker 03:
He already had this OIG.

[00:14:50] Speaker 00:
And that's for misbehavior.

[00:14:52] Speaker 03:
Well, but the OIG investigation had cleared him, so to speak, of this.

[00:14:59] Speaker 03:
That's right.

[00:15:00] Speaker 03:
But the OIG is absolutely empowered to investigate administrative misconduct.

[00:15:04] Speaker 00:
They do it all the time.

[00:15:05] Speaker 00:
But they didn't do it.

[00:15:07] Speaker 00:
In this case, they didn't say, we absolve you of criminal conduct as well as of any possible civil misconduct.

[00:15:14] Speaker 03:
No.

[00:15:16] Speaker 03:
But they were fully empowered, had they wanted to, to investigate them.

[00:15:19] Speaker 00:
Can I come back just for one data point on whether or not Mr. Ash is different from your client?

[00:15:24] Speaker 00:
Don't you think the public would recognize the difference between someone who brandishes his firearm against a member of the public to try to intimidate that person?

[00:15:33] Speaker 00:
That's what your client did, I think.

[00:15:35] Speaker 03:
That is not one of the charges for which my client was removed.

[00:15:39] Speaker 00:
No.

[00:15:40] Speaker 00:
But the facts show, in terms of asking whether these people are similar,

[00:15:45] Speaker 00:
Your client, you know, in that episode when he went to get the stuff back, he allowed his gun to be shown to him and he admitted he was trying to intimidate this person.

[00:15:56] Speaker 00:
Isn't there a difference between that conduct and having sex with your own wife in the office?

[00:16:02] Speaker 03:
First of all, that's not remotely the limitation of Mr. Ash's misconduct in the office.

[00:16:07] Speaker 00:
His sex in the office with his wife.

[00:16:10] Speaker 00:
He also groped several subordinate female agents.

[00:16:14] Speaker 00:
You were relying on the sex in the office earlier?

[00:16:18] Speaker 03:
As well.

[00:16:18] Speaker 03:
I mean, there were eight specifications.

[00:16:20] Speaker 03:
Eight specifications in that, which were later repeated, some of them, and later misconduct.

[00:16:25] Speaker 00:
Well, both.

[00:16:26] Speaker 00:
To your point.

[00:16:26] Speaker 00:
Don't you think the public would find both horrible?

[00:16:29] Speaker 00:
be aghast at the conduct of brandishing a gun to try to intimidate somebody and also someone who has this sexual problem in the office?

[00:16:40] Speaker 03:
I need to make a clarification about the brandishing of the gun.

[00:16:43] Speaker 03:
That was something that was investigated by the OIG.

[00:16:46] Speaker 03:
The OIG found that he had not used his position to intimidate the owner of Wisconsin Tactical.

[00:16:54] Speaker 00:
They found the conduct wasn't criminal.

[00:16:56] Speaker 03:
That's right.

[00:16:56] Speaker 03:
And none of the specifications for which Mr. Seiler was removed involved him brandishing his gun to intimidate Mr. Hanash.

[00:17:07] Speaker 03:
That was not one of the charges for which Mr. Seiler was removed.

[00:17:11] Speaker 03:
So I understand, to your point about, that that's something members of the public might have some concern about.

[00:17:19] Speaker 00:
But the conduct on becoming was threatening a member of the public?

[00:17:24] Speaker 03:
In an email.

[00:17:26] Speaker 03:
in an email, not with his gun.

[00:17:28] Speaker 04:
Right.

[00:17:28] Speaker 04:
And when you're determining similarly situated, it has to be based on what the charges are.

[00:17:33] Speaker 03:
OK.

[00:17:34] Speaker 03:
That's correct, Your Honor.

[00:17:35] Speaker 04:
Are the basis for removal.

[00:17:36] Speaker 04:
OK.

[00:17:37] Speaker 04:
You've gone over your time.

[00:17:39] Speaker 04:
I'll give you three minutes for rebuttal.

[00:17:41] Speaker 03:
Thank you, Your Honor.

[00:18:02] Speaker 04:
All right, Council, I want to start with the claim of privilege here.

[00:18:05] Speaker 04:
I have to say I've never seen a more bogus claim of privilege in my life.

[00:18:09] Speaker 04:
I mean, this is, you don't do a privilege log.

[00:18:12] Speaker 04:
You produce these documents.

[00:18:13] Speaker 04:
You say they're privileged.

[00:18:15] Speaker 04:
You don't produce anything to establish that they're privileged.

[00:18:19] Speaker 04:
You go back and forth saying, I don't really know who wrote them.

[00:18:22] Speaker 04:
Oh, by the way, it might have been somebody in HR.

[00:18:24] Speaker 04:
We don't know who they sent them to.

[00:18:26] Speaker 04:
How can you possibly base a claim of privilege on those kinds of facts?

[00:18:32] Speaker 02:
And Judge, I totally understand where you're coming from.

[00:18:34] Speaker 02:
I think one important thing to note is that throughout the drawn-out... And I can see you were not the lawyer who was saying all this stuff.

[00:18:42] Speaker 02:
Well, I'm defending... I represent the government here today, and I do want to defend the government's position, which is that during this drawn-out discovery process, there was an extremely contentious period of negotiation regarding key terms, custodians.

[00:18:55] Speaker 02:
I mean, there was an initial request that was extremely expansive.

[00:18:59] Speaker 04:
But can you agree with me there is no showing of privilege upon which a privilege determination could have been made in this case?

[00:19:05] Speaker 02:
I think there was an assertion of privilege.

[00:19:07] Speaker 02:
And I think during the hearing, I mean, if this came out at a time where the parties had an opportunity to brief it rather than it kind of being sprung up at the hearing, I think it could have been better laid out.

[00:19:19] Speaker 04:
Well, better laid out.

[00:19:20] Speaker 04:
I mean, the ALJ just kept saying, I trust the lawyer who says they're privileged.

[00:19:25] Speaker 04:
even though the lawyer said, I don't know who wrote it.

[00:19:27] Speaker 04:
I don't know who got it.

[00:19:29] Speaker 04:
It might have been HR that wrote it.

[00:19:31] Speaker 04:
I mean, how?

[00:19:32] Speaker 04:
There is no finding that can be supported.

[00:19:34] Speaker 04:
So let's assume these documents are not privileged.

[00:19:37] Speaker 04:
Where do we go from there?

[00:19:40] Speaker 02:
I think if you assume the documents are not privileged, I think that's a big assumption that we'll make just for purposes of this hypothetical.

[00:19:48] Speaker 04:
Well, tell me how they're privileged then.

[00:19:50] Speaker 04:
Or tell me how you made a showing of privilege.

[00:19:52] Speaker 04:
at the time.

[00:19:53] Speaker 02:
I think there were two assertions of privilege during written discovery, where the trial attorney below said, look, proposed personnel actions were specifically requested.

[00:20:02] Speaker 02:
This was an RFP number 12 petitioner.

[00:20:05] Speaker 04:
But how is a lawyer assertion of privilege a sufficient showing of privilege?

[00:20:10] Speaker 04:
You have the burden to establish privilege.

[00:20:13] Speaker 02:
Right.

[00:20:13] Speaker 02:
And so again, I mean, this goes back to the context of this contentious discovery process.

[00:20:18] Speaker 02:
where eventually, a week before the hearing, the parties finally negotiated the finalized terms.

[00:20:23] Speaker 02:
And that's what led to the production of these documents.

[00:20:26] Speaker 05:
Do you think that by the government saying that something's attorney client privileged, they're saying it was written by an attorney?

[00:20:33] Speaker 05:
Is that your position?

[00:20:34] Speaker 05:
Because in your appellate brief, I agree with Judge Romali.

[00:20:38] Speaker 05:
I looked at all the record sites on this.

[00:20:40] Speaker 05:
And the only thing in there is we don't know who wrote these.

[00:20:44] Speaker 05:
We think someone from HR might have written these.

[00:20:47] Speaker 05:
And wait, just wait.

[00:20:48] Speaker 05:
OK, sure.

[00:20:48] Speaker 05:
On page 55 of your red brief, you say the EPA's counsel, during the trial, consistently and repeatedly made representations on the record that the working grads were drafted by attorneys.

[00:21:01] Speaker 05:
And then you have all these sites following them.

[00:21:04] Speaker 05:
But looking at those sites, there's absolutely nothing in the record saying that these were drafted by attorneys.

[00:21:10] Speaker 05:
So the only thing I can figure is that maybe you think that when you say there's an attorney-client privilege, automatically everybody is supposed to assume that that means it was drafted by attorneys, not withstanding testimony suggesting otherwise.

[00:21:23] Speaker 02:
And this is in Appendix 1931.

[00:21:25] Speaker 02:
This is in the hearing transcript.

[00:21:29] Speaker 02:
The petition does not deny that they got a document listing all the individuals involved in drafting the proposed personal actions.

[00:21:38] Speaker 02:
And there's no dispute in this case that that listing of individuals who were involved in drafting those proposed actions, there were attorneys on there.

[00:21:48] Speaker 02:
So when the attorney is then responding at the hearing, that's for all the proposed personal actions.

[00:21:54] Speaker 02:
And that was turned over before the hearing.

[00:21:57] Speaker 02:
And that was turned over before the proposed personal actions

[00:22:00] Speaker 00:
Were they listed names?

[00:22:01] Speaker 00:
Did they identify them as attorneys and members of the bar?

[00:22:04] Speaker 02:
I believe so.

[00:22:05] Speaker 00:
You believe so or you know?

[00:22:07] Speaker 02:
Because that document's not in the record.

[00:22:09] Speaker 02:
Well, then if it's not in the record, why are you talking about it?

[00:22:12] Speaker 02:
Because it was mentioned at the hearing.

[00:22:14] Speaker 02:
And that's the document where it's made.

[00:22:17] Speaker 04:
That's another example.

[00:22:18] Speaker 04:
Council at 1938 said to the AJ, I don't know who wrote those letters.

[00:22:25] Speaker 04:
And I don't know when they were written.

[00:22:27] Speaker 04:
And then later, before that, at 1674, says, we don't know who drafted them.

[00:22:32] Speaker 04:
As I suggested, I suspect, well, I'm pretty certain, virtually certain, they weren't drafted by Mr. Parker.

[00:22:38] Speaker 04:
I suspect they were drafted by somebody in HR who assumed that Mr. Parker would be the proposing official.

[00:22:45] Speaker 04:
So again, there's no evidence or even fair argument that these were written by an attorney or that they were encompassing privileged information

[00:22:56] Speaker 04:
that was discussed between an attorney and the client.

[00:23:00] Speaker 02:
And again, that response is directed to the two specific proposed drafts that were presented to the board judge.

[00:23:06] Speaker 02:
It's not talking about the vast corpus of proposed personal actions that the government had.

[00:23:11] Speaker 02:
It's specifically referring to those two.

[00:23:13] Speaker 00:
And those are the two that she'd like to have access to.

[00:23:16] Speaker 00:
Right.

[00:23:16] Speaker 02:
And again, I think even if you disagree with this on the privilege issue and you say the board judge abused her discretion in this regard,

[00:23:22] Speaker 02:
It's hard to understand how that would be.

[00:23:24] Speaker 00:
Let me ask you this question.

[00:23:25] Speaker 00:
What evidence, not attorney argument, what evidence is there in the record, in the record, that these two documents were written by a lawyer?

[00:23:36] Speaker 02:
They're undated, proposed.

[00:23:37] Speaker 00:
What evidence, other than attorney argument, in the record, says that these documents were written by a lawyer?

[00:23:45] Speaker 02:
There's an implicit concession in appendix 1931, and that's the closest we have.

[00:23:49] Speaker 00:
Concession by who?

[00:23:51] Speaker 02:
At the hearing, it's

[00:23:53] Speaker 00:
Concession by who?

[00:23:55] Speaker 02:
I'm sorry.

[00:23:55] Speaker 02:
I'm just going to turn back to it just to make sure I get it correct.

[00:23:57] Speaker 02:
Judge Clevenger.

[00:24:17] Speaker 04:
What appendix page are you talking about?

[00:24:20] Speaker 01:
I am looking at 1931, Judge O'Malley.

[00:24:31] Speaker 05:
I don't see anything.

[00:24:34] Speaker 00:
Who's going to concede that it was written by an attorney?

[00:24:37] Speaker 00:
Certainly, Mrs. Bowie.

[00:24:53] Speaker 01:
Judge, I'm having trouble finding it.

[00:24:56] Speaker 01:
And if that's a miscite, I apologize.

[00:24:57] Speaker 05:
I have to say that on page 55 of your brief, you say that EPA's counsel consistently and repeatedly had representations that the working brass were drafted by attorneys.

[00:25:08] Speaker 05:
And then you have four sites, none of which are JA1931, and none of which support this assertion.

[00:25:14] Speaker 05:
And I've come to expect more from government.

[00:25:17] Speaker 02:
The first two documents that are referring to are written discovery responses, where the government counsel does, in fact, assert attorney-client privilege.

[00:25:26] Speaker 05:
But there's nothing saying that the working drafts were drafted by attorneys.

[00:25:31] Speaker 05:
There is absolutely nothing in the record to support that.

[00:25:35] Speaker 02:
Right.

[00:25:35] Speaker 02:
And I think part of the problem, part of the difficulty here, is that there was initial pre-conference hearing, or pre-board hearing,

[00:25:43] Speaker 02:
where the judge kind of addressed the issue.

[00:25:45] Speaker 05:
But part of the problem here is that you've misrepresented the record.

[00:25:48] Speaker 02:
No, Judge, if you feel that way, I apologize.

[00:25:51] Speaker 02:
That certainly wasn't my intention.

[00:25:53] Speaker 02:
In the written discovery responses that the government turned over, saying we are not turning over proposed personal actions, the government counsel specifically made assertions of attorney-client privilege.

[00:26:01] Speaker 02:
Now, I think there's a lot here that says that's the problem.

[00:26:04] Speaker 04:
That's the problem.

[00:26:04] Speaker 04:
We've got this pattern.

[00:26:06] Speaker 04:
You said attorney-client privilege, but you never, ever produced anything to support that.

[00:26:13] Speaker 04:
on the record repeatedly said things completely inconsistent with that.

[00:26:16] Speaker 04:
And then you do the same thing in your briefs.

[00:26:19] Speaker 04:
So there's this pattern of, well, we're just going to say it's provision.

[00:26:22] Speaker 00:
We don't care if we have to.

[00:26:24] Speaker 00:
Who may ask me once again, is there any evidence in the record, any evidence in the record that these two documents we're talking about were written by an attorney?

[00:26:32] Speaker 00:
Answer that question, yes or no.

[00:26:33] Speaker 00:
No, there's not.

[00:26:34] Speaker 00:
There's no evidence.

[00:26:35] Speaker 00:
There's no direct evidence of that.

[00:26:36] Speaker 00:
So I say your next case.

[00:26:38] Speaker 00:
How can you possibly claim attorney-client privilege for something that could be written by a teenager?

[00:26:45] Speaker 00:
You'd be sanctioned, wouldn't you, if you made an affirmative and you couldn't back it up?

[00:26:51] Speaker 02:
Judge Cleverger, to be absolutely clear here, a few days before the hearing, the board judge said, look, if we're going to talk about the privilege, let's brief it.

[00:27:01] Speaker 00:
But I know exactly what the timing is.

[00:27:04] Speaker 00:
And the district court judge gave Ms.

[00:27:06] Speaker 00:
Bowie

[00:27:08] Speaker 00:
fits over the fact that she said, I'm sorry, I didn't understand what you were asking from me.

[00:27:14] Speaker 00:
There was a misunderstanding here, right?

[00:27:16] Speaker 00:
And then the AJ could easily have solved this entire issue on timing and could have written an opinion saying, I'm sorry, Ms.

[00:27:24] Speaker 00:
Bowie, you misunderstood.

[00:27:26] Speaker 00:
That's your problem.

[00:27:27] Speaker 00:
You're too late.

[00:27:29] Speaker 00:
It's over.

[00:27:30] Speaker 00:
But they expressly ruled in the opinion, I'm not relying on timing.

[00:27:36] Speaker 00:
I'm relying on these two documents being shielded by the attorney-client privilege, right?

[00:27:42] Speaker 02:
That's what the board should say, correct.

[00:27:43] Speaker 00:
So we're not interested in any argument about timing.

[00:27:48] Speaker 00:
No.

[00:27:49] Speaker 00:
So how can you possibly stand in front of this court and say that the government wants to cloak these two documents with attorney-client privilege?

[00:28:02] Speaker 02:
The sentiment that we're trying to cloak these documents.

[00:28:04] Speaker 00:
Confessing error is not a sin.

[00:28:08] Speaker 02:
Judge Cleverger.

[00:28:09] Speaker 00:
It'll probably get you fired, but it won't.

[00:28:11] Speaker 00:
It's not a sin.

[00:28:13] Speaker 02:
Well, the way these things developed was there was a hearing.

[00:28:19] Speaker 02:
No motion followed.

[00:28:19] Speaker 04:
I get you say this was contentious, but you still dumped documents on the other side right before the hearing.

[00:28:27] Speaker 04:
And then you claimed they were privileged.

[00:28:29] Speaker 04:
You didn't produce the emails that would show the metadata so you could tell when they were prepared and who they were transmitted between.

[00:28:38] Speaker 04:
And now you're saying that it's all their fault?

[00:28:41] Speaker 02:
No, Judge O'Malley, I'm not characterizing this as a dump either, because I think the board judge said, look, she addressed this at the problems in two motions to compel and said, this is both parties' faults.

[00:28:51] Speaker 02:
The way that this developed, you guys should have worked together to kind of narrow this down and come to a compromise.

[00:28:56] Speaker 02:
So even the board judge didn't ascribe fault to any which party.

[00:28:59] Speaker 04:
But putting fault aside, there's still the burden that's on the agency to prove that they didn't have to produce these materials.

[00:29:08] Speaker 04:
And the agency never satisfied that burden.

[00:29:13] Speaker 02:
And again, I mean, the documents were raised pre-board hearing.

[00:29:16] Speaker 04:
Right, so that board hearing should have been moved.

[00:29:19] Speaker 02:
I agree.

[00:29:19] Speaker 02:
I mean, if any party had sought a continuance at that point, I am inclined to think the board judge probably would have granted it.

[00:29:25] Speaker 02:
I mean, she already granted one previously.

[00:29:27] Speaker 02:
And that was actually due to documents, right?

[00:29:30] Speaker 02:
That was a document dispute, and the board judge said, well, OK, I'll grant a continuance.

[00:29:34] Speaker 02:
And that could have happened here as well.

[00:29:35] Speaker 02:
And I think the issue could have been much better fleshed out, provided that the petitioner moved or filed something saying, hey, look, we just got these documents.

[00:29:44] Speaker 02:
We want a chance to review them.

[00:29:46] Speaker 02:
We have a privilege dispute, and I think the board judge could have addressed it at that point.

[00:29:50] Speaker 02:
But given that it was raised at the hearing, and it was kind of sprung up, even on the first day of the hearing, the way the document was presented, there were no physical copies presented to any of the witnesses or the board judge.

[00:30:01] Speaker 02:
And it was only at the end of the second day of the hearing where the documents were finally presented to the board judge without any sponsor or witness, where the petitioner asked the board judge to just take them into evidence.

[00:30:13] Speaker 05:
Can I ask you about car factor three?

[00:30:16] Speaker 05:
Because I think we might be running out of time.

[00:30:18] Speaker 05:
OK.

[00:30:19] Speaker 05:
No, I understand, Judge.

[00:30:20] Speaker 05:
So in car factor three, it's agency action against similarly situated non-whistleblowers, right?

[00:30:27] Speaker 01:
Correct.

[00:30:30] Speaker 05:
Why is it appropriate under car factor three, then, to consider whistleblowers?

[00:30:37] Speaker 05:
Why is it?

[00:30:37] Speaker 05:
There's a whole paragraph

[00:30:39] Speaker 05:
in the ANJ's opinion, where she analyzes whistleblowers and says that this factor, I don't know if she says it weighs against the government, it weighs in favor of the government.

[00:30:51] Speaker 05:
She concluded it weighed in favor of the government.

[00:30:53] Speaker 05:
But as part of that analysis, she considered the agency treatment of whistleblowers.

[00:30:58] Speaker 05:
Why would that be appropriate under a factor that is requiring consideration of non-whistleblowers?

[00:31:05] Speaker 02:
I don't think we're saying that's appropriate.

[00:31:07] Speaker 02:
I think we're saying it's unclear whether you can do it.

[00:31:09] Speaker 02:
And in fact, I think if... You think it's unclear whether she can say it?

[00:31:13] Speaker 02:
I mean, the phrasing of the element would suggest that you shouldn't include other whistleblowers in that analysis.

[00:31:18] Speaker 02:
And I think we do mention that in our brief.

[00:31:20] Speaker 04:
But she did.

[00:31:21] Speaker 04:
But she did.

[00:31:21] Speaker 02:
She did.

[00:31:22] Speaker 02:
And what she did was she took the motive to retaliate.

[00:31:24] Speaker 02:
Because certainly they'd be relevant to the question of whether there was a motive to retaliate.

[00:31:28] Speaker 02:
And then said, look, I'm considering that same evidence for car factor three.

[00:31:32] Speaker 02:
And then said, in the slightest way, I'm going to find that in favor of the agency.

[00:31:35] Speaker 04:
So if you want to ratchet- We shouldn't really say in the slightest way.

[00:31:39] Speaker 04:
Well, I do think out of the- We made a finding that that way is in favor of the agency.

[00:31:42] Speaker 02:
I think if you look at the factors, the third CAR factor was, she viewed it the least in favor of the agencies.

[00:31:47] Speaker 05:
She said on page 29, she has a title.

[00:31:51] Speaker 05:
It's treatment of non-whistleblowers.

[00:31:53] Speaker 05:
And she is addressing that.

[00:31:55] Speaker 05:
And on page 30, she says, finally, this is in the context of considering CAR factor three.

[00:32:01] Speaker 05:
Finally, and perhaps most tellingly,

[00:32:03] Speaker 05:
There is no evidence in the record that the agency retaliated against the first person to report.

[00:32:09] Speaker 05:
I mean, this is in the context of considering car factor three.

[00:32:13] Speaker 05:
She's talking about the treatment.

[00:32:15] Speaker 02:
I'm sorry, Judge, so which page?

[00:32:17] Speaker 05:
Page 30.

[00:32:18] Speaker 02:
30?

[00:32:18] Speaker 05:
I mean, I just don't see how you can say that she wouldn't consider the treatment.

[00:32:24] Speaker 05:
of whistleblowers in the context of analyzing car factor three.

[00:32:28] Speaker 05:
I'm confused by that answer.

[00:32:30] Speaker 04:
Is there a place that you can cite me to in the record where she said just slightly weighs in favor of the agency?

[00:32:36] Speaker 02:
No, I think if you read the decision, factor one was... But she doesn't say that.

[00:32:40] Speaker 04:
You just said a few minutes ago that she said that.

[00:32:44] Speaker 02:
Right, and I think if you view the car factors the way she... But she doesn't say that, right?

[00:32:48] Speaker 02:
I don't think she uses those precise words, but I think the way she decides the first car factor is

[00:32:53] Speaker 02:
She decisively favors the agency on that.

[00:32:56] Speaker 02:
The second car factor, she says, that's also in favor of the agency based on credibility determinations.

[00:33:00] Speaker 02:
The third car factor, I think she comes to the conclusion that, look, I'm evaluating all this evidence, and I find this in favor of the agency as well.

[00:33:08] Speaker 02:
And I don't think she had to do that, because at the end of the day, even if you ratchet that back, you still have the fact that the strength of the agency's evidence on the car factor was very strong.

[00:33:17] Speaker 02:
And the second car factor as well, I mean, that's based on credibility determinations and the weighing of the evidence.

[00:33:22] Speaker 02:
And that's not reviewable in this court, because those are credibility determinations that the board judge made in support of the agency's personal action.

[00:33:34] Speaker 02:
So with respect to the privilege issue, I mean, I understand the court's, I guess, disappointment in the fact that there's not more in the record regarding what

[00:33:44] Speaker 02:
the grounds for the privilege war, but I also think the circumstances contributed to that in the way that discovery kind of developed.

[00:33:51] Speaker 04:
A lot of what the petitioners... Okay, you're out of time.

[00:33:53] Speaker 04:
Now you're repeating yourself, so we got that.

[00:33:57] Speaker 04:
Okay, thank you.

[00:33:59] Speaker 01:
All right, thank you, Judge.

[00:34:00] Speaker 04:
You're down to only three minutes left.

[00:34:14] Speaker 00:
What's a receiver or a receiver kit?

[00:34:19] Speaker 00:
That's a good question, Your Honor.

[00:34:20] Speaker 03:
I asked the same question of Mr. Seiler and some of the other witnesses.

[00:34:26] Speaker 03:
A receiver, I guess, is the main part of the gun of the AK-47, as opposed to the barrel or the stock.

[00:34:34] Speaker 03:
That's what it is.

[00:34:36] Speaker 00:
And a receiver kit has the pieces that go into that receiver kit.

[00:34:39] Speaker 00:
Yes.

[00:34:39] Speaker 03:
And in fact, I believe the pieces were separated amongst a bunch of different boxes.

[00:34:44] Speaker 03:
So one point I want to make, though, we've been focusing on Mr. Ash's misconduct as it's relevant to car factor three.

[00:34:55] Speaker 03:
We would also submit that his misconduct, and specifically the agency's handling of his misconduct,

[00:35:03] Speaker 03:
overlooking it, allowing it to continue for years and years, is also relevant to car factor two, which is the agency's motive to retaliate against Mr. Seiler.

[00:35:14] Speaker 03:
The judge credited Mr. Barnett's testimony that he would applaud a whistleblower like Mr. Seiler for coming forward with evidence of misconduct.

[00:35:26] Speaker 03:
However, that is not certainly what Mr. Barnett did.

[00:35:30] Speaker 03:
When multiple women came forward and testified and the OIG or the administrative investigation confirmed that they had been mistreated by Mr. Ash, Mr. Barnett did not applaud those women.

[00:35:44] Speaker 03:
He instead mitigated Mr. Ash's proposed 30-day suspension to 14 days and allowed Mr. Ash to remain on as those women's supervisor into perpetuity

[00:35:58] Speaker 03:
the same women that the agency itself confirmed that he had mistreated and groped and behaved boorishly towards.

[00:36:07] Speaker 00:
You have a Douglas Factor error issue in your appeal as well.

[00:36:11] Speaker 00:
Yes, Your Honor.

[00:36:11] Speaker 00:
I'm curious to know whether there's any difference, and if so, what, between Car Factor III and the Douglas Factor that examines whether or not there's been disparate treatment for similarly situated individuals?

[00:36:26] Speaker 03:
Your Honor,

[00:36:27] Speaker 03:
I think that there is a lot of overlap between those two aspects.

[00:36:32] Speaker 03:
Are they different?

[00:36:36] Speaker 03:
Well, I know that with the car element, for example, the similarly situated language appears in both standards, I believe.

[00:36:45] Speaker 03:
But with respect to the car aspect, this court has said that the agency, in fact, has the burden of looking throughout the entire agency

[00:36:57] Speaker 03:
to show that it treated other people who were non-whistleblowers the same way that it treated Mr. Seiler.

[00:37:04] Speaker 03:
It's not limited to the same chain of command.

[00:37:08] Speaker 03:
This is the Miller v. DOJ case.

[00:37:11] Speaker 03:
This court has said the agency has to show that it does this to other people.

[00:37:17] Speaker 03:
And it absolutely didn't do that.

[00:37:19] Speaker 03:
The agency had the burden on the car factor.

[00:37:21] Speaker 03:
Mr. Seiler has the burden on the Douglas factor.

[00:37:25] Speaker 03:
at least to articulate how he was treated dissimilarly.

[00:37:30] Speaker 00:
Well, you seem to make an argument at one point that if the government can't come forward with anything on CAR 3, then the government should lose.

[00:37:38] Speaker 03:
Well, that was actually the Whitmore decision that said that if an agency cannot produce evidence on CAR factor 3, that could lead to them

[00:37:54] Speaker 03:
losing on the clear and convincing evidence standard.

[00:37:57] Speaker 03:
That's a line from the Whitmore decision, Your Honor.

[00:38:01] Speaker 03:
Thank you.