[00:00:00] Speaker 05:
The first case is in council, correct me if I'm pronouncing your client's name incorrectly, Bolanos Reynoso versus Department of Agriculture.

[00:00:11] Speaker 05:
Mr. Austin, when you're ready.

[00:00:14] Speaker 03:
May it please the court.

[00:00:15] Speaker 03:
My name is Sean Austin and I have the pleasure of representing the petitioner, Tomaso Bolanos Reynoso.

[00:00:22] Speaker 03:
Ms.

[00:00:22] Speaker 03:
Bolanos Reynoso spent 17 years serving the American people with distinction, ferreting out waste, fraud, and abuse.

[00:00:30] Speaker 03:
She spent nine years at defense in Homeland Security and then six years at USDA, all the time establishing a stellar record.

[00:00:39] Speaker 03:
She's an immigrant to achieve the American dream, rising to her dream GS-15 position at the Office of the Assistant Secretary for Civil Rights.

[00:00:49] Speaker 03:
And then she discovered something she could not ignore.

[00:00:54] Speaker 03:
When she arrived at Oscar in 2016, she found an office treating federal law as merely advisory.

[00:01:00] Speaker 03:
She discovered fraudulent billing practices, ghost employees and contracts, funds being illegally shifted to high deficits.

[00:01:08] Speaker 03:
This very office charged with protecting civil rights was violating the public trust.

[00:01:13] Speaker 03:
She did what the law requires.

[00:01:15] Speaker 03:
She reported it first to her supervisor, Winona Scott, then to the inspector general, and then to the office.

[00:01:22] Speaker 00:
What's gross mismanagement argued in the below proceeding?

[00:01:26] Speaker 00:
I'm sorry.

[00:01:27] Speaker 00:
What's gross mismanagement argued in the below proceeding?

[00:01:30] Speaker 00:
And if so, where?

[00:01:32] Speaker 03:
She had mentioned the... She had testified explicitly about mismanagement at the hearing.

[00:01:43] Speaker 03:
I can provide you those citations.

[00:01:47] Speaker 03:
It would be appendix 875 at 65-511.

[00:01:56] Speaker 03:
She says, I didn't know how deep or complex that mismanagement was.

[00:02:00] Speaker 03:
The statute protects... Did she raise gross mismanagement to the special counsel?

[00:02:09] Speaker 03:
I believe so.

[00:02:09] Speaker 05:
I believe that she did raise... Where in her special counsel letter to the special counsel did she argue gross mismanagement?

[00:02:19] Speaker 03:
I can provide you that citation.

[00:02:21] Speaker 03:
I don't have the special counsel citation in front of me.

[00:02:24] Speaker 03:
I have the citation from her testimony.

[00:02:27] Speaker 05:
For her IRA appeal, I understand that

[00:02:29] Speaker 05:
there's the IRA appeal and then there's also the challenge to the demotion.

[00:02:34] Speaker 05:
But the IRA appeal, doesn't she have to exhaust with the special counsel?

[00:02:40] Speaker 03:
With the special counsel on the, she filed two complaints with the office of special counsel.

[00:02:48] Speaker 03:
She had exhausted everything that's now before us now.

[00:02:53] Speaker 05:
Well, that's what I ask you.

[00:02:54] Speaker 05:
Where in the special counsel complaint to the special counsel, did she raise gross mismanagement?

[00:03:01] Speaker 03:
I don't have that in front of me.

[00:03:03] Speaker 05:
That's something that I can provide after this hearing if that's... Well, if she didn't raise it, then it's not part of the IRA appeal, right?

[00:03:11] Speaker 05:
I mean, part of the argument here is the board found, I think, that she raised arguments about

[00:03:28] Speaker 05:
violations of statutes or regulations, but not gross mismanagement.

[00:03:34] Speaker 03:
Well, she can raise allegations about what she believes to be violations of law.

[00:03:41] Speaker 03:
And then those can, if someone wants to then classify those as gross mismanagement, there are alternative grounds for the statute.

[00:03:50] Speaker 05:
I mean, she, what she sees... What's your basis for that argument?

[00:03:53] Speaker 05:
I thought her case law was pretty clear.

[00:03:56] Speaker 05:
And the board's case law was pretty clear that in an IRA appeal, you have to specifically exhaust your legal challenges, your whistleblower claims with the special counsel.

[00:04:08] Speaker 05:
And if you don't, they're not properly part of the IRA appeal before the board.

[00:04:13] Speaker 05:
And grossness management is different than violation of law, rule, or regulation.

[00:04:18] Speaker 03:
Uh, Ms.

[00:04:19] Speaker 03:
Villanez-Renoso is, is not an attorney.

[00:04:22] Speaker 05:
What she did is she presented a set of facts- Her law doesn't apply differently based on whether she's an attorney or not.

[00:04:28] Speaker 03:
I understand that, Your Honor.

[00:04:30] Speaker 03:
Uh, I think my point is that she presented a set of facts and concerns to the Office of Special Counsel.

[00:04:38] Speaker 05:
Uh, facts that she believed- During those complaints, can it reasonably be read as raising gross mismanagement as opposed to violations of law, rule, or regulation?

[00:04:48] Speaker 03:
I believe that

[00:04:49] Speaker 03:
if the violations of law are so egregious and pervasive.

[00:04:54] Speaker 05:
You're just basically saying a violation of law, rule, or regulation is the same thing as gross mismanagement?

[00:04:59] Speaker 03:
Not always, but I think in... Never.

[00:05:02] Speaker 05:
I mean... You have to specifically raise them.

[00:05:05] Speaker 05:
Let's just... I mean, obviously you don't have the citation for us, so let's just move on.

[00:05:10] Speaker 05:
But I mean, if she didn't exhaust on gross management, how can that be part of the IRA appeal?

[00:05:15] Speaker 05:
I mean, the answer is it can't.

[00:05:18] Speaker 03:
So... Okay.

[00:05:21] Speaker 03:
Your Honor, this case presents three fundamental legal errors that demand reversal.

[00:05:26] Speaker 03:
First, the government violated her constitutional due process rights.

[00:05:30] Speaker 03:
While she was on her performance improvement plan, her supervisor engaged in a campaign of secret ex parte communications with a deciding official.

[00:05:38] Speaker 03:
Emails Ms.

[00:05:40] Speaker 03:
Melanes-Renoso never saw and allegations that she can never rebut.

[00:05:45] Speaker 04:
Wasn't that evidence only used according to the administrative judge here to assess whether your client had adequate notice?

[00:05:56] Speaker 03:
I think that's how the AJ characterized it.

[00:06:02] Speaker 04:
Do you think you have an issue regarding the ex parte communication that's broader than whether or not your client had adequate notice?

[00:06:11] Speaker 03:
We have an issue with the ex parte nature of it.

[00:06:15] Speaker 03:
in and of itself.

[00:06:17] Speaker 03:
Ex parte, under Stone v. FDIC, we look at that as a violation of her rights, not simply to be on notice, but it's all part of the process that went into this.

[00:06:31] Speaker 04:
The administrative judge said whatever was in those ex parte emails was cumulative of what was already in the record.

[00:06:39] Speaker 03:
And we would argue that it's not cumulative.

[00:06:43] Speaker 04:
What's our standard of review on that question?

[00:06:45] Speaker 04:
that up.

[00:06:52] Speaker 04:
Don't we have to uphold that finding that was cumulative if there's substantial evidence for that finding?

[00:06:58] Speaker 03:
I believe that if there's substantial evidence, the determination of whether something is cumulative or not, as I understand it,

[00:07:12] Speaker 03:
falls into this area of mixed question of law and fact.

[00:07:15] Speaker 03:
A question, an issue that I have concerns with throughout the AJ's opinion.

[00:07:20] Speaker 05:
Where in any of our case law on ex parte communications does it say that that's a question, a mixed question of law and fact?

[00:07:30] Speaker 03:
I think the question of whether something is, we have a legal standard of whether something is cumulative or not.

[00:07:38] Speaker 03:
We apply.

[00:07:39] Speaker 00:
To respond to Judge Hughes' question, do you have a case that supports up the statement you just made about this question on that?

[00:07:47] Speaker 00:
What's the case?

[00:07:56] Speaker 03:
I'd be looking at Roku versus International Trade Commission 944-1367 and then Salmon.

[00:08:05] Speaker 03:
I have 663 F3 1378 as the citations I have around the questions about the cumulative nature of those emails and whether her due process rights were further violated by those coming into this process.

[00:08:33] Speaker 00:
As a fundamental matter though, are the actual communications you're talking about communications where she was a recipient or sender of the emails?

[00:08:42] Speaker 03:
No.

[00:08:43] Speaker 03:
These are communications between the Miss Scott and then who is going to then be the deciding official about her performance.

[00:08:55] Speaker 03:
This is not stuff that the stuff that we are complaining about.

[00:08:58] Speaker 03:
It's not stuff that she was going to be on notice of or have prior

[00:09:04] Speaker 03:
knowledge of, nor did she have.

[00:09:07] Speaker 05:
You said they were communications between Ms.

[00:09:09] Speaker 05:
Scott, the deciding official, but I thought that Ms.

[00:09:12] Speaker 05:
Scott ultimately replaces the deciding official after a compromise.

[00:09:17] Speaker 03:
I'm sorry, the reviewing official, Ms.

[00:09:19] Speaker 03:
Scott, yes.

[00:09:20] Speaker 03:
The person who then replaced her, she was communicating with the reviewing official for them to then.

[00:09:27] Speaker 05:
What do you mean by reviewing official?

[00:09:29] Speaker 05:
For the adverse action, there's

[00:09:32] Speaker 05:
the proposing official, and there's the deciding official.

[00:09:34] Speaker 03:
Yeah, the proposing official, that's what I mean, yes.

[00:09:36] Speaker 05:
Scott was the proposing official?

[00:09:39] Speaker 05:
She began... I know that she started out, and there's a very complicated procedural issue here because of an EEO complaint and the like, but the ultimate action we're looking at is not the removal, it's the demotion.

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

[00:09:53] Speaker 05:
And so the demotion is a different person who's the deciding official, and there were communications to her from Ms.

[00:09:59] Speaker 05:
Scott.

[00:10:01] Speaker 05:
Is that what you're saying?

[00:10:02] Speaker 05:
The communications you're talking about, at least for the ex parte, have to be communications to the deciding official.

[00:10:09] Speaker 05:
I don't recall her name directly, but at the hearing she testified that she barely looked at them.

[00:10:17] Speaker 05:
I don't know if she said they were cumulative, but the administrative judge ultimately found that those communications to her were cumulative.

[00:10:27] Speaker 05:
You know, let's just assume I disagree with you about that being a mixed question of law and fact.

[00:10:33] Speaker 05:
I think whether something is cumulative or not is a factual question.

[00:10:37] Speaker 05:
You look at the communications and say, well, where are the information in these communications that are alleged to be ex parte already known to the appellant?

[00:10:47] Speaker 05:
And if they were, they're cumulative.

[00:10:50] Speaker 05:
And AJ made that finding.

[00:10:51] Speaker 05:
Is there a lack of substantial evidence for that finding?

[00:10:55] Speaker 05:
I didn't see anything in your brief that pointed to new information in those communications.

[00:11:02] Speaker 03:
It was information that it was relied upon in making that decision.

[00:11:10] Speaker 05:
The deciding official testified that she didn't rely on them.

[00:11:15] Speaker 03:
I think that the

[00:11:17] Speaker 03:
And that's that that I understand that that's what the deciding official had testified to at AJ relied on that.

[00:11:23] Speaker 05:
That's I mean, that's isn't that substantial evidence?

[00:11:26] Speaker 05:
I mean, I'm taking you into your bottle time also.

[00:11:29] Speaker 03:
So if you want to save the remainder, I'll just address, you know, one thing about the clean up the next question of all fact issues that

[00:11:38] Speaker 03:
and then I'll save the rest for rebuttal, is that it's not merely these particular issues.

[00:11:44] Speaker 03:
We identify portions in our brief where she is taking, using credibility determinations to resolve what we consider interpretations of internal regulations.

[00:11:55] Speaker 03:
I think that's more clearly a pure question of law.

[00:11:58] Speaker 03:
And I think that itself would be something sufficient at a procedural irregularity within the AJA's opinion.

[00:12:05] Speaker 03:
that we need to look at that would be sufficient for reversal.

[00:12:08] Speaker 03:
The opinion relies so heavily on credibility determinations to try to insulate itself from review to where I believe it makes mistakes in deciding too many things under that auspice.

[00:12:23] Speaker 03:
And we've identified instances of that most prominently in the reply brief.

[00:12:29] Speaker 03:
And that's where I have some of the greatest concerns about that.

[00:12:32] Speaker 03:
using factual or credibility determinations resolve what I would consider to be legal questions or questions that the A.J.

[00:12:40] Speaker 03:
needed to decide.

[00:12:42] Speaker 05:
Okay, thank you.

[00:12:42] Speaker 03:
Thank you.

[00:12:43] Speaker 05:
We'll reserve the rest of your time for room.

[00:12:47] Speaker 05:
Ms.

[00:12:48] Speaker 05:
Moses.

[00:12:54] Speaker 02:
Good morning, Your Honors and may it please the court.

[00:12:58] Speaker 02:
Excuse me.

[00:12:59] Speaker 02:
The administrative judge's decision is supported by substantial evidence and should be affirmed.

[00:13:05] Speaker 02:
What we've seen here is that Ms.

[00:13:08] Speaker 02:
Bolanos-Reynoso has attempted to introduce new evidence to sort of a retroactive indication of her allegation, I'm sorry, her disclosures regarding ADA violations and USDA violations.

[00:13:24] Speaker 05:
She has attempted to introduce evidence about Mr. Kirk Perry, someone who... Do you mean all the stuff in the reply briefing about the indictment that happened long after this case was finished?

[00:13:36] Speaker 02:
Yes, Your Honor.

[00:13:36] Speaker 02:
Well, actually, it was in the 28-J notices.

[00:13:40] Speaker 05:
I don't want to hear about that unless my colleagues want to hear about that.

[00:13:43] Speaker 05:
That's not part of the record before us.

[00:13:47] Speaker 05:
They can try to introduce what they want, but we're reviewing

[00:13:51] Speaker 05:
the board's decision based on the record before the board.

[00:13:55] Speaker 05:
And I wouldn't waste your time on that.

[00:13:59] Speaker 05:
Can you address what we were talking about with him?

[00:14:02] Speaker 05:
Because I'm still unclear about two things.

[00:14:05] Speaker 05:
Did she exhaust claims, of course, mismanagement?

[00:14:08] Speaker 05:
Because AJ didn't seem to think she did.

[00:14:11] Speaker 05:
And what's the standard of review for cumulative evidence?

[00:14:15] Speaker 05:
And those are two different things.

[00:14:17] Speaker 05:
But that's what we talked about with him.

[00:14:18] Speaker 05:
So why don't you get to those?

[00:14:20] Speaker 02:
Certainly, Your Honor.

[00:14:22] Speaker 02:
At the government's brief at pages 29 through 31, we go into some detail there about how Ms.

[00:14:30] Speaker 02:
Belanos Reynoso did not raise, there were no issues before the administrative judge regarding protected disclosures concerning gross mismanagement.

[00:14:42] Speaker 02:
Ms.

[00:14:42] Speaker 02:
Belanos Reynoso alleged that she made protected disclosures based on violation of laws and regulations, the Anti-Deficiency Act specifically,

[00:14:51] Speaker 02:
and also USDA regulations.

[00:14:54] Speaker 02:
She also alleged that she made disclosures about, on a different date, about similar violations.

[00:15:03] Speaker 02:
And support for that, Your Honor, is at pages, supplemental appendix pages 379, 384, and 385.

[00:15:12] Speaker 02:
Also, at supplemental appendix pages

[00:15:22] Speaker 02:
page 1287 is a list of all of the issues that the administrative judge indicated in her pre-hearing summary and order that she would consider to the exclusion of all other issues.

[00:15:35] Speaker 02:
There's no issue listed here that relates to gross mismanagement.

[00:15:38] Speaker 02:
It all relates specifically to legal violations.

[00:15:44] Speaker 02:
And also to answer the question about whether there were any allegations exhausted through the OSC process.

[00:15:52] Speaker 02:
I did not see anything in the record that indicated that.

[00:15:57] Speaker 02:
With respect to the standard of review, in Ms.

[00:15:59] Speaker 02:
Bolanos-Reynoso's reply, she advances this ultimate fact doctrine.

[00:16:05] Speaker 02:
But Your Honor, this court has not adopted that.

[00:16:07] Speaker 02:
And the Supreme Court in Pullman's standard rejected that.

[00:16:12] Speaker 02:
doctrine or the use of that doctrine.

[00:16:16] Speaker 02:
In this case, if substantial evidence supports the administrative judge's finding, the court must affirm.

[00:16:22] Speaker 02:
And with respect to whether the group of emails here was cumulative, that's a factual question.

[00:16:31] Speaker 02:
And that's a question that the court can look to see whether there is substantial evidence of that, which there is.

[00:16:39] Speaker 02:
It was not new.

[00:16:41] Speaker 02:
This was information that had been included in the notice of proposed removal.

[00:16:50] Speaker 02:
It was also information that could be gleaned if you turn the court's attention to appendix page 293 and also 1239.

[00:17:01] Speaker 02:
There's a November 1st, 2017 email in which Ms.

[00:17:06] Speaker 02:
Bolanos-Reynoso says to Mr. King,

[00:17:09] Speaker 02:
who was her immediate supervisor and who prepared the performance improvement plan, stating that she and her immediate supervisor, Scott, had had, quote, regular performance discussions.

[00:17:22] Speaker 02:
And that was really, as Ms.

[00:17:24] Speaker 02:
Pletcher-Rice testified, she was only confirming whether Ms.

[00:17:30] Speaker 02:
Scott and Ms.

[00:17:31] Speaker 02:
Belano-Suenoso had had discussions during the performance period.

[00:17:36] Speaker 02:
This was also not material information.

[00:17:39] Speaker 02:
The focus of the, at the time it was a proposed removal but then demotion was on Mrs. Bilanos-Reynoso's deficient performance during the performance improvement plan period, that 60 day period.

[00:17:55] Speaker 02:
Though she did mention, it was mentioned I believe in the first or second paragraph that Ms.

[00:18:02] Speaker 02:
Scott had, you know, had many conversations with Ms.

[00:18:05] Speaker 02:
Bilanos-Reynoso about her deficient performance.

[00:18:10] Speaker 02:
Also, excuse me, these emails cannot be seen to have been really prejudicial.

[00:18:18] Speaker 02:
I mean, the deciding official reduced the penalty from a removal to demotion.

[00:18:26] Speaker 02:
So really what we have here, Your Honor, is that we have ample evidence of deficient performance, specifically with respect to mission critical element number four, I believe.

[00:18:37] Speaker 02:
customer service and communication, Ms.

[00:18:40] Speaker 02:
Villanos Reynoso doesn't even make any arguments against that.

[00:18:44] Speaker 02:
And the agency can remove someone for unsatisfactory performance in just one critical element.

[00:18:52] Speaker 02:
So she doesn't dispute that.

[00:18:53] Speaker 02:
So all we're really left here with is, was it a fair process?

[00:18:57] Speaker 02:
And it was.

[00:18:58] Speaker 04:
Ask you about another argument that she raised in the briefs didn't come up yet an oral argument, but this issue that I guess Mr. King had not been her supervisor for very long.

[00:19:11] Speaker 04:
And they point to a regulation.

[00:19:15] Speaker 04:
with various conditions when a relatively new supervisor is able to fulfill this role.

[00:19:24] Speaker 04:
And their specific argument seems to be that the AJ saw that as a fact question and not an interpretation of law question and simply relied on, I think, an HR official as a factual matter.

[00:19:39] Speaker 04:
Is that not an error here?

[00:19:44] Speaker 02:
It's not, Your Honor, and if I may clarify a factual point.

[00:19:48] Speaker 02:
At appendix pages 73 to 74, the administrative judge relied on the HR official's testimony for the fact that an employee must be on a performance plan for 90 days before they can be rated, but that no rule requires a rating official, that would have been Mr. King, to have been the employee supervisor for 90 days.

[00:20:12] Speaker 02:
So perhaps to the extent that the administrative judge didn't cite the specific regulation here, it is nonetheless consistent with USDA regulation 4040-430, section 9, F5, which can be found at appendix page 1019.

[00:20:33] Speaker 02:
1019 is the applicable reg?

[00:20:38] Speaker 02:
Yes, Your Honor.

[00:20:39] Speaker 04:
I had thought, so there's a regulation, the relevant part is 5C, Appendix 131.

[00:20:48] Speaker 04:
Maybe that's not, I may be at the wrong regulation.

[00:20:52] Speaker 04:
That was going to be my next question.

[00:20:54] Speaker 04:
Why don't we start at 131 and tell me if that has anything to do with this issue.

[00:20:58] Speaker 04:
I'll take a look.

[00:21:03] Speaker 04:
Specifically, Section 5 on new supervisors.

[00:21:11] Speaker 02:
I think it's the same.

[00:21:12] Speaker 02:
I think it's a duplicate.

[00:21:14] Speaker 02:
It's a duplicate, okay.

[00:21:14] Speaker 02:
It looks to be at least from an initial glance here.

[00:21:18] Speaker 02:
Okay.

[00:21:18] Speaker 02:
And I noticed that Ms.

[00:21:20] Speaker 02:
Villanos-Reynoso, she does more so point to the A through C paragraphs.

[00:21:28] Speaker 02:
And what we point out in our brief is that if you look at that last paragraph there, it says, if those provisions are not in place, and that would have been the case here with Mr. King, the second level supervisor will serve as the rating official.

[00:21:41] Speaker 02:
And the third level supervisor will serve as the reviewing official.

[00:21:46] Speaker 02:
And so here, Mr. King, as the second level supervisor, served as the rating official.

[00:21:51] Speaker 02:
And the third level supervisor, Ms.

[00:21:53] Speaker 02:
Scott, served as the reviewing official, I believe.

[00:21:56] Speaker 05:
I was, I've already forgotten to say, Mr. King, the second level supervisor.

[00:22:01] Speaker 05:
I thought he was her first level supervisor.

[00:22:04] Speaker 05:
Well, at first it was Miss, it was Miss.

[00:22:07] Speaker 05:
There was a very complicated change of events because of the change in administration, so I understand.

[00:22:11] Speaker 05:
Miss Scott was her supervisor, her first line supervisor, and then somebody else was her second line supervisor.

[00:22:18] Speaker 02:
I believe it was Mr. King.

[00:22:22] Speaker 05:
Wait, but Mr. King was the one who then signed off on her rating?

[00:22:27] Speaker 05:
Am I getting, who initially did?

[00:22:31] Speaker 05:
her, the notice that she, we'll put her on a PIP.

[00:22:39] Speaker 05:
That was Mr. King.

[00:22:41] Speaker 05:
So Mr. King was, I don't, maybe I'm wrong in the facts, but that suggested Mr. King was her second line supervisor and Ms.

[00:22:50] Speaker 05:
Scott was her first line and then they flipped somehow.

[00:22:54] Speaker 05:
I thought that Ms.

[00:22:55] Speaker 05:
Scott was her first line supervisor, somebody else was Ms.

[00:22:59] Speaker 05:
Scott's supervisor, and then because Ms.

[00:23:02] Speaker 05:
Scott was elevated because of the transition, that Mr. King was put in as the first line supervisor, so Ms.

[00:23:10] Speaker 05:
Scott could be the second line supervisor.

[00:23:13] Speaker 05:
Is that not correct?

[00:23:15] Speaker 05:
Because I thought your alternative argument, because it really does seem that this wasn't necessary to comply with, was that

[00:23:23] Speaker 05:
even if that was the case, then a new evaluation was done with Ms.

[00:23:28] Speaker 05:
Scott as the first line supervisor and her boss, whose name I don't recall signed off on that.

[00:23:35] Speaker 05:
That's in your brief, I think.

[00:23:37] Speaker 02:
Yes, it is, Your Honor.

[00:23:38] Speaker 02:
I'm sorry.

[00:23:39] Speaker 02:
And it is a little cumbersome just trying to sort of map out how each person sort of transitioned into a new position.

[00:23:47] Speaker 02:
But my understanding was that Ms.

[00:23:51] Speaker 02:
I didn't, I wasn't aware what different position Ms.

[00:23:55] Speaker 02:
Scott took, but just that all of her subordinates were reassigned to Mr. King at a certain point, because I believe... So you think there was another first line supervisor in between Mr. King and the petitioner?

[00:24:13] Speaker 02:
if we're looking at a snapshot in time.

[00:24:16] Speaker 02:
I didn't see you arguing that in your brief, but maybe I'm wrong.

[00:24:20] Speaker 05:
I thought the argument in your brief was that even if Mr. Ping couldn't sign off, that the performance evaluation was ratified later because it was reissued with Ms.

[00:24:32] Speaker 05:
Scott as the rating official and her superior as the reviewing official.

[00:24:42] Speaker 02:
I believe, Your Honor, is correct.

[00:24:44] Speaker 02:
And we can provide supplemental briefing on that if it requires a little more clarification.

[00:24:53] Speaker 02:
But my understanding was that Ms.

[00:24:58] Speaker 02:
Scott was the rating official, ultimately, that she provided the substance of the performance evaluation

[00:25:11] Speaker 02:
And then later, Mr. King certainly was the one who signed off on the performance improvement plan.

[00:25:21] Speaker 04:
Are you also arguing, going back to this regulation, that 5C is satisfied that Mr. King had not been in the supervisory role for 90 days, but there's at least one interim rating to consider in the rating of record?

[00:25:37] Speaker 04:
Is that not part of your argument?

[00:25:40] Speaker 02:
Let me take a look at that.

[00:25:52] Speaker 02:
Court's indulgence What we have I'm I I

[00:26:19] Speaker 02:
That certainly would be a closer question, Your Honor, because what we have at appendix page 259 is a performance appraisal that was October 26.

[00:26:32] Speaker 02:
And then the performance improvement plan letter came a few days, I'm sorry, even preceding the performance appraisal, we have a letter notifying Ms.

[00:26:44] Speaker 02:
Bilanos-Reynoso of deficient performance on October 20th.

[00:26:49] Speaker 02:
that would have been, I believe, issued by Ms.

[00:26:52] Speaker 02:
Scott.

[00:26:53] Speaker 02:
Then we have the performance appraisal that was mostly drafted by Ms.

[00:26:59] Speaker 02:
Scott, but issued by Mr. King.

[00:27:02] Speaker 02:
So I believe that could potentially satisfy 5C.

[00:27:08] Speaker 04:
The argument they're making is, as I said,

[00:27:13] Speaker 04:
The AJ mistakenly treated this as a fat question, whether this regulation was complied with, and that it should have been a legal question.

[00:27:24] Speaker 04:
What is your response?

[00:27:27] Speaker 04:
How, if at all, could we affirm, notwithstanding the arguments they're making on this issue?

[00:27:33] Speaker 02:
The court could affirm if the court were to find that even if the administrative judge did not cite to a specific regulation, that

[00:27:44] Speaker 02:
if it's still permissible under the law that Mr. King could have signed the rating.

[00:27:49] Speaker 04:
We could interpret this regulation de novo ourselves, right?

[00:27:53] Speaker 04:
Yes, that would be a legal finding.

[00:27:56] Speaker 04:
And if we interpret it the way it seems to be written, was it satisfied here?

[00:28:01] Speaker 02:
I believe it was, yes, Your Honor.

[00:28:06] Speaker 04:
Because of the if provision at the end or because A, B, and C were satisfied?

[00:28:24] Speaker 02:
I believe potentially 5C could possibly have been satisfied given the October 20th letter notifying Ms.

[00:28:37] Speaker 02:
Balanz-Reynoso of deficient performance, which could have been an interim rating.

[00:28:44] Speaker 00:
I thought when you were speaking with Judge Hughes, you were arguing it more so as the if provision.

[00:28:49] Speaker 02:
I was.

[00:28:50] Speaker 02:
It was just when Judge Stark

[00:28:52] Speaker 02:
pointed my attention to 5C.

[00:28:54] Speaker 02:
I just zeroed in on that a little.

[00:28:56] Speaker 05:
I think it's really hard for you to argue that 5C is satisfied when there's never been any suggestion from you or the other side that there was actually an interim rating.

[00:29:05] Speaker 05:
And you're trying to recharacterize something that's a notice of performance as an interim rating.

[00:29:10] Speaker 05:
And maybe if you had argued that to the board, you could have, but I didn't see that in the record.

[00:29:17] Speaker 05:
that would not argue to that.

[00:29:18] Speaker 05:
Yeah.

[00:29:18] Speaker 05:
I think your argument in your brief at pages 39 and 40 is that even though you don't use the words harmless error, is that even if it wasn't technically complied with, that ultimately her second line and third line supervisors agreed to this action because Ms.

[00:29:36] Speaker 05:
Scott was her second line supervisor and Mr. Young concurred in that as well.

[00:29:41] Speaker 02:
That properly characterizes the arguments in our brief.

[00:29:44] Speaker 02:
Okay.

[00:29:44] Speaker 02:
And we would, we would.

[00:29:46] Speaker 02:
The court has no further questions.

[00:29:48] Speaker 02:
We ask that the court affirm the board's decision.

[00:29:51] Speaker 02:
Thank you.

[00:29:59] Speaker 05:
Mr. Austin, she went over a couple of minutes.

[00:30:02] Speaker 05:
I'm going to give you four minutes of rebuttal.

[00:30:04] Speaker 05:
Thank you.

[00:30:09] Speaker 03:
Ultimately, what we're asking for here is a process

[00:30:14] Speaker 03:
both before the AJ and at the AJ free of the type of procedural errors that really left things unaddressed that were very important.

[00:30:30] Speaker 03:
I know we may not always agree, we had identified what we considered to be a laundry list of next questions of law, fact of questions of law.

[00:30:38] Speaker 03:
I know we may not agree on every single one of those that the

[00:30:41] Speaker 03:
administrative judge did, but we have identified at least one instance where the administrative judge took a legal question and deferred to the belief of the person that this is what this means.

[00:31:01] Speaker 03:
That's an abdication of the AJ's role in deciding that.

[00:31:07] Speaker 05:
There are... Are you talking about this regulation we were just discussing?

[00:31:12] Speaker 03:
And I, the broader point is.

[00:31:14] Speaker 05:
To the extent we agree with you that that's a legal question.

[00:31:17] Speaker 03:
Yeah.

[00:31:18] Speaker 05:
We can look at it to no vote, right?

[00:31:20] Speaker 03:
Yes, and I think for the reasons you guys said that.

[00:31:23] Speaker 03:
We're not you guys.

[00:31:26] Speaker 03:
Sorry, your honor.

[00:31:27] Speaker 03:
I apologize, your honor.

[00:31:28] Speaker 05:
Future reference.

[00:31:30] Speaker 05:
Sure, I get it, but the government did make the argument in its brief that ultimately the whatever rating or the action was signed off on by a second line and third line supervisor.

[00:31:43] Speaker 05:
Wouldn't that render it harmless?

[00:31:45] Speaker 05:
Because that would comply with your view of the regulation.

[00:31:48] Speaker 03:
No, there's a series of things that must be met that weren't.

[00:31:57] Speaker 03:
Procedural safeguards are there for a reason.

[00:32:00] Speaker 03:
I think when they're not... I'm not what?

[00:32:04] Speaker 05:
Let's assume the facts are true as the government said that even though I'm getting all the names mixed up, the first guy, I get to say guy.

[00:32:16] Speaker 05:
Guy, your honor.

[00:32:17] Speaker 05:
Shouldn't it have signed off on it that ultimately

[00:32:20] Speaker 05:
Ms.

[00:32:21] Speaker 05:
Scott reissued whatever evaluation we're talking about with the concurrence of her supervisor, so it was done with the second and third line supervisor, which clearly would have complied with that regulation.

[00:32:35] Speaker 05:
Why wasn't that initial action harmless error since it was ratified later?

[00:32:45] Speaker 03:
The question of harmless error in the context of what we're alleging or alleging a coordinated and strong effort from Ms.

[00:32:58] Speaker 03:
Scott to force her out for blowing the whistle.

[00:33:01] Speaker 03:
So I think when we start engaging.

[00:33:04] Speaker 05:
This is a different question.

[00:33:07] Speaker 05:
I mean, that's the problem is you're blurring your narrative about whistleblower status with whether the PIP procedures were complied with.

[00:33:15] Speaker 05:
And whatever that context for the IRA and the whistleblower affirmative defense isn't really relevant to the specific question of did the agency comply with an agency-specific regulation on supervising and reviewing officials, which isn't even required by Chapter 43.

[00:33:35] Speaker 05:
The way it did it may not at first have been technically correct, but was cured by subsequent action.

[00:33:46] Speaker 03:
Yeah, once say, even if something's not required by statute, if an agency holds itself in regulations.

[00:33:53] Speaker 05:
But you're not addressing what seems to be undisputed facts that it was later ratified by Ms.

[00:34:00] Speaker 05:
Scott as the second line supervisor and the third line supervisor, who I think was Mr. Young.

[00:34:06] Speaker 05:
Why doesn't that cure any potential violation of the agency regulation?

[00:34:20] Speaker 05:
Do you want to answer that quickly, or you're otherwise out of time?

[00:34:24] Speaker 05:
I don't have an answer.

[00:34:24] Speaker 05:
OK.

[00:34:26] Speaker 05:
Thank you.

[00:34:27] Speaker 05:
The case is submitted.