[00:00:00] Speaker 04:
We have one argued case today, and that is docket number 23-2331, Oliver versus the Department of Veterans Affairs.

[00:00:11] Speaker 04:
Mr. Kazim, you've reserved three minutes for rebuttal, is that right?

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

[00:00:16] Speaker 04:
OK.

[00:00:17] Speaker 02:
Please begin when you're ready.

[00:00:19] Speaker 02:
All right.

[00:00:20] Speaker 02:
Good morning, Your Honors, and may it please the court, appellate Jad Kazim on behalf of Steven Oliver.

[00:00:25] Speaker 02:
Or Jad Kazim on behalf of Count Steven Oliver.

[00:00:29] Speaker 02:
This is a whistleblower retaliation case, and this appeal seeks to vindicate a whistleblower's right to a board proceeding that addresses all the relevant evidence and to an agency investigation that collects even basic information from the employee.

[00:00:43] Speaker 01:
Let me ask you a question right at the outset, because the government in its brief says this is only a whistleblower case, and you're not challenging the underlying dismissal.

[00:00:54] Speaker 01:
I read the AJ's opinion as dealing with both issues.

[00:00:58] Speaker 01:
Are you challenging both issues?

[00:01:00] Speaker 02:
We're very much challenging the underlying specifications, but we're doing so under the clear and convincing framework, under the CAR framework, because we've established our prima kia, Rashi Case.

[00:01:09] Speaker 01:
I understand.

[00:01:10] Speaker 01:
Did you understand the AJ to be addressing both issues in her opinion?

[00:01:16] Speaker 02:
I understood the AJ to be addressing the specifications under preponderance standard and then also the whistleblower defense under clear and convincing.

[00:01:26] Speaker 02:
But our focus again is on clear and convincing because it's not enough for the agency just to show preponderance here to remove a whistleblower.

[00:01:32] Speaker 02:
It's the agency's burden to show clear and convincing evidence justifying removal.

[00:01:36] Speaker 01:
Right, but to the extent that the issue was focused initially at least on the

[00:01:41] Speaker 01:
sufficiency of the evidence to warrant the dismissal, setting aside the affirmative defense, then it would be correct for the AJ to talk about the evidence under the preponderance standard, correct?

[00:01:56] Speaker 02:
But the AJ analyzed in the first instance the evidence and the preponderance standard, but then went on, you know, the next step is clear and convincing.

[00:02:04] Speaker 02:
OK.

[00:02:04] Speaker 02:
And, you know, it's not enough for the government under Miller just to have some evidence or even preponderance of evidence to justify the removal.

[00:02:11] Speaker 02:
Clear and convincing.

[00:02:12] Speaker 02:
And this is key because, look, Smith versus GSA, this court's recent decision, made clear that the clear and convincing evidence standard

[00:02:19] Speaker 02:
requires the board to provide a, quote, in-depth review and full discussion of the relevant facts to explain its reasoning without ignoring the evidence relevant to the whistleblower's defense.

[00:02:29] Speaker 00:
And likewise... Do you agree that the AJ does not have to address every piece of evidence in her opinion?

[00:02:36] Speaker 02:
I look I agree I my or our position is that the AJ has to dress certainly every material piece of evidence and You know in addition to that the question I pose though Do you agree that the AJ does not have to address every piece of evidence in our opinion I?

[00:02:50] Speaker 00:
Think every material piece of evidence not doesn't have to be every question yes or no whether or not you agree that the AJ doesn't have to address every piece of evidence our opinion yes or no

[00:02:59] Speaker 02:
We agree with that, Your Honor, is that the AJ doesn't have to address every stray theory or every stray, but these are material pieces of evidence.

[00:03:06] Speaker 02:
This is the core defense theory that was advanced.

[00:03:09] Speaker 02:
You know, with respect to, we had a high performing employee here, not just for a high performing manager, not just performance wise, but also his branch had the highest employee satisfaction rates as well.

[00:03:22] Speaker 00:
He was sent to an underperforming.

[00:03:24] Speaker 00:
What is your best argument to support that the board's decision is not supported by substantial evidence?

[00:03:31] Speaker 02:
With respect to car factor one, our position is that the AJ failed to address material evidence, including, again, the core defense theory here, which is the character evidence.

[00:03:42] Speaker 02:
We had an employee who, a manager, who had top both customer satisfaction ratings for veterans, but also employee satisfaction ratings in his office.

[00:03:53] Speaker 02:
He was central and underperforming.

[00:03:54] Speaker 01:
Did he ask to have character witnesses presented before the AJ?

[00:04:00] Speaker 02:
He had before the AJ, but the AJ didn't address that evidence.

[00:04:04] Speaker 01:
She listed the appellant's witnesses.

[00:04:11] Speaker 01:
I don't see where she foreclosed any of his witnesses.

[00:04:18] Speaker 01:
Which witnesses, and where would I find the list of witnesses in the record that she prevented him from calling?

[00:04:25] Speaker 02:
Right.

[00:04:25] Speaker 02:
Well, for example, and again, the standard is not just exclusion of witnesses, although he or she excluded the lead investigator, the AJ, but also failure to address it in the opinion.

[00:04:34] Speaker 02:
Because again, Whitmore was very clear.

[00:04:37] Speaker 04:
Could you respond to Judge Bryson's question?

[00:04:40] Speaker 02:
Right.

[00:04:40] Speaker 02:
So for example, the Baker affidavit at Appendix 283 noting that Mr. Oliva had the highest success rates in the agency for employee satisfaction and customer satisfaction.

[00:04:53] Speaker 02:
Wait a minute.

[00:04:55] Speaker 01:
This affidavit was submitted to, as I understand it, submitted to the AIB.

[00:05:03] Speaker 01:
Is that correct?

[00:05:04] Speaker 02:
It was submitted in connection with the removal process, but it was also part of the evidence of record.

[00:05:11] Speaker 01:
My question is, you say that she didn't allow him to present his witnesses.

[00:05:17] Speaker 01:
Which witnesses did she not allow him to present after he made an effort to have them testify?

[00:05:25] Speaker 02:
Right.

[00:05:25] Speaker 02:
The key witness that was excluded here was the lead investigator, which under Whitmore.

[00:05:31] Speaker 00:
Well, I thought that originally the lead investigator, are you talking about Dr. Russell?

[00:05:36] Speaker 02:
Dr. Russell.

[00:05:37] Speaker 00:
I thought that Dr. Russell was initially on appellant's witness list, but then decided that they didn't want to call Dr. Russell.

[00:05:45] Speaker 00:
They didn't want to call Dr. Russell.

[00:05:46] Speaker 00:
Is that accurate?

[00:05:47] Speaker 02:
And if you look at the record, the reference was that it was, the counsel was, excuse me, Dr. Russell was withdrawn after a pre-hearing conference where the AJ, Judge Maloof, made clear that the AIB was not relevant to the whistleblower defense, which is error under Whitmore.

[00:06:06] Speaker 00:
So did your client ask to have Dr. Russell withdrawn, yes or no?

[00:06:10] Speaker 02:
In the lower court proceedings, yes.

[00:06:13] Speaker 04:
But the basis for the AJ's discretion, the AJ did not say, because we filed a withdrawal, we're not going to give... And then the AJ, if I understand it correctly, invited each side to consider the possibility of making a request again to have Dr. Russell appear in the proceeding.

[00:06:31] Speaker 04:
Is that right?

[00:06:32] Speaker 02:
That's correct, Your Honors.

[00:06:33] Speaker 01:
So, and he didn't take advantage of that offer?

[00:06:36] Speaker 02:
Yeah.

[00:06:36] Speaker 02:
I'd say, look, there's an even simpler path here.

[00:06:39] Speaker 01:
It sure sounds like he's waived his right to have Dr. Russell testify.

[00:06:46] Speaker 01:
Initially, he said he wanted him, and then he withdrew him.

[00:06:50] Speaker 01:
And then he says, well, I withdrew him because AJ didn't really want to hear from him.

[00:06:57] Speaker 01:
But then she makes this offer.

[00:06:59] Speaker 01:
If you want to re-urge the approval of any witness, including in particular Dr. Russell,

[00:07:09] Speaker 01:
She's open to reconsideration.

[00:07:11] Speaker 01:
And there isn't a peek from him.

[00:07:13] Speaker 02:
Your Honor, I think there's even a simpler path here.

[00:07:15] Speaker 02:
You're correct about that, which is that the deposition transcript of the lead investigator was indisputably in the record.

[00:07:24] Speaker 02:
And the government says that deposition transcript of the lead investigator is significant because Dr. Russell makes criticisms of the WPA-protected activity between Oliva and the director.

[00:07:37] Speaker 02:
The AJ also has the lead investigator in his deposition transcript at Appendix 326 where he talks about Oliva and he talks about the 23-minute interview he was given.

[00:07:49] Speaker 02:
And the investigator says, quote, whether he was asked or not, this is about the allegations against him, whether he was asked or not, I don't think is particularly germane because my sense is he just would have denied it.

[00:08:02] Speaker 02:
And that pre-judgment of guilt, that deposition testimony was indisputably in the record.

[00:08:07] Speaker 02:
And the government, their only answer for that is to say, well, presumably the AJ considered it.

[00:08:12] Speaker 02:
We know the AJ didn't consider it because the AJ, one, didn't address it anywhere in her opinion.

[00:08:17] Speaker 02:
Two, at trial, she said, I don't think the lead investigator is relevant.

[00:08:22] Speaker 02:
The only reason that deposition transcript.

[00:08:23] Speaker 00:
But when we were talking previously, counsel, you can't necessarily equate the fact that something isn't stated means that the AJ didn't consider it.

[00:08:29] Speaker 00:
We agreed previously, and you agreed with me,

[00:08:32] Speaker 00:
that you don't have to talk about every piece of evidence in the decision.

[00:08:38] Speaker 02:
I think the relevant standard is the one articulated in Smith and in Whitmore, which is, quote, that the board is required to provide an in-depth review and full discussion of the facts to explain its reasoning.

[00:08:48] Speaker 04:
And likewise, the AJ could have written a 200-page opinion, but what we do have here is a

[00:08:54] Speaker 04:
what appears to be on all accounts.

[00:08:56] Speaker 04:
I mean, we've seen a lot of board decisions and AJ decisions, a very careful, thoroughly considered opinion.

[00:09:03] Speaker 04:
And so we can give some latitude to this AJ and other AJs when they might not address every single thing.

[00:09:15] Speaker 04:
Apparently, there were a lot of things to consider here.

[00:09:18] Speaker 02:
Yeah.

[00:09:19] Speaker 02:
And I would point, Your Honor, to the Siler versus EPA decision, where the court made a point, look, the AJ went through a very detailed opinion, several pages in its car analysis, and we're not necessarily questioning all the findings, but the court said there's an important defense theory that the

[00:09:36] Speaker 02:
that the whistleblower raised that was not addressed, and that should be addressed on remand.

[00:09:40] Speaker 02:
And if I could just add briefly, Your Honours, look, the government half a dozen times in its briefs invokes a presumption that the Board is presumed to have considered even evidence that was not discussed in its decision.

[00:09:57] Speaker 02:
And the authority for that, if you look at it, Your Honors, is Strickland-Donald.

[00:10:01] Speaker 02:
And I think that's significant because it was... Go ahead.

[00:10:03] Speaker 04:
So then, you know, there's a lot going on in your briefing.

[00:10:07] Speaker 04:
There's a lot of different individual arguments.

[00:10:10] Speaker 04:
Can you just focus in on one or two pieces of evidence that you want to highlight for us today that the administrative judge did not expressly consider that you really think are vital?

[00:10:23] Speaker 04:
Just one or two.

[00:10:24] Speaker 04:
I'm happy to boil it down, Your Honors.

[00:10:26] Speaker 02:
Yes.

[00:10:27] Speaker 02:
And if I may address with respect to each of the car factors, on car factor one.

[00:10:33] Speaker 04:
I'm sorry.

[00:10:34] Speaker 04:
I just need an answer right now to my question.

[00:10:36] Speaker 04:
What is the one or two pieces of critical evidence that the administrative judge should have considered, but she did not expressly evaluate in her decision?

[00:10:47] Speaker 02:
Right.

[00:10:47] Speaker 02:
On car factor one, it's the Waco Topeka rivalry, the evidence that, look, he wants to talk to an underperformer.

[00:10:52] Speaker 01:
And the idea that the Topeka people were hostile

[00:10:56] Speaker 01:
to him, but the Waco people loved him.

[00:10:59] Speaker 02:
Yes, that's a significant point.

[00:11:00] Speaker 01:
And therefore, there's this kind of suggestion of a Topeka conspiracy to see if they could get rid of this guy.

[00:11:06] Speaker 01:
That's the basic theory, right?

[00:11:08] Speaker 02:
She commented on that.

[00:11:11] Speaker 02:
She did not, Your Honor.

[00:11:12] Speaker 01:
I'm sorry.

[00:11:13] Speaker 01:
I found her comment at page 22 of the appendix, I thought, was directed at the whole notion that the Topeka people

[00:11:26] Speaker 01:
were hostile to us.

[00:11:30] Speaker 02:
Yes, page 22 was addressing another point.

[00:11:32] Speaker 02:
Page 22 was addressing that there were some folks in Waco, not in Topeka, in Waco, who didn't get a job that they wanted, some GS9s who didn't get hired for a position they wanted.

[00:11:43] Speaker 02:
So that's sort of 180 degrees.

[00:11:44] Speaker 02:
That was not addressing a Topeka bias against them.

[00:11:48] Speaker 02:
That was addressing a certain Waco individuals

[00:11:52] Speaker 00:
But just following up on Judge Pearson's good question, it says right here, I've considered the appellant's contention that the allegations set forth in the agency's proposal resulted for a conspiracy among the Topeka employees and that Red failed to promptly report the comments.

[00:12:08] Speaker 00:
Is that portion not referring to the argument that you just summarized in response to my colleague's questions?

[00:12:15] Speaker 02:
Right, but if you look at the previous sentence, it was addressing just because they're Facebook friends.

[00:12:20] Speaker 02:
That's the evidence of the conspiracy, and that's not the case.

[00:12:24] Speaker 02:
The evidence that we had put forward was that he was a very successful manager for employee satisfaction in Waco, sent to Topeka,

[00:12:34] Speaker 02:
to fix a massively underperforming office.

[00:12:36] Speaker 02:
All the allegations come from that office.

[00:12:38] Speaker 02:
And if I could add one further point.

[00:12:40] Speaker 01:
That's exactly what she said.

[00:12:41] Speaker 01:
She said, I have considered the appellant's contention that the allegations set forth in the agency's proposal resulted from a conspiracy among these Topeka employees.

[00:12:53] Speaker 01:
Isn't that, that was exactly what I was pointing to.

[00:12:56] Speaker 01:
And you say, no, that was all about Waco.

[00:12:59] Speaker 02:
Right, but the significant point here is the previous paragraph was about Waco.

[00:13:04] Speaker 02:
This paragraph was in regard to supposedly the only evidence of the conspiracy the appellant put forward was that they were Facebook friends, and that's not the case.

[00:13:15] Speaker 02:
We have, for example, the fact that there was a false Nazi rumor

[00:13:18] Speaker 02:
that was propagated about him.

[00:13:20] Speaker 00:
Given the fact that there's time limits on this argument, did you fully respond to Judge Chin's question?

[00:13:26] Speaker 00:
He said he wanted one to two pieces of evidence.

[00:13:28] Speaker 00:
I think you've given us one that we've talked about and you've talked about with Judge Bryson.

[00:13:32] Speaker 00:
Do you have a second or are you just sticking with the one?

[00:13:35] Speaker 02:
I would say the second is the failure on car factor two to address the January 2015 reprimand that was in the personnel file.

[00:13:44] Speaker 02:
Three months after the AJ's decision in this case, that reprimand, which said that the appellant had made

[00:13:51] Speaker 02:
slanderous comments that negatively affected the organization.

[00:13:54] Speaker 02:
Three months later, another AJ set aside that reprimand as a WPA violation.

[00:14:03] Speaker 02:
So the fact that the AJ here didn't address, well, perhaps that reprimand being in the record that says you made slanderous comments that negatively affected the organization, that could perhaps affect that.

[00:14:13] Speaker 04:
Is there any evidence that the proposing official or deciding official knew about the reprimand and the, I don't know, the undoing of the reprimand?

[00:14:22] Speaker 02:
Well, it was expunged, again, three months after the AJ's decision in this case.

[00:14:26] Speaker 02:
And we cite in our brief.

[00:14:27] Speaker 02:
I'm sorry.

[00:14:28] Speaker 04:
Can you just answer my question?

[00:14:31] Speaker 04:
My question was, is there any evidence in the record that either the proposing official or the deciding official was aware of the reprimand and then subsequent expungement of the reprimand?

[00:14:43] Speaker 02:
Well, the expungement didn't happen at the time.

[00:14:45] Speaker 02:
It didn't happen at the time of the removal decision.

[00:14:52] Speaker 02:
Yes, but there is evidence in the record that Ms.

[00:14:56] Speaker 02:
Johnson, who is the recommending official, that she had received copies, and this is at appendix 383, of prior disciplinary actions.

[00:15:06] Speaker 02:
And so, and we also know actually there was a federal circuit case from 2020 that came up where the government continued to discuss this reprimand despite settling with the plaintiff and agreeing not to address it to other employers.

[00:15:21] Speaker 01:
One thing you focus on toward the interview brief on procedural errors before the AIB.

[00:15:29] Speaker 01:
But it struck me that the AIB is not

[00:15:32] Speaker 01:
The agency is adjudicative process.

[00:15:35] Speaker 01:
It's an investigative entity, right?

[00:15:39] Speaker 01:
And investigative entities, it's effectively equivalent to a grand jury, let's say, in a criminal case.

[00:15:46] Speaker 01:
And the kinds of due process considerations that apply to an adjudicative body, either the agency's decision maker or, in this case, the board,

[00:16:00] Speaker 01:
don't apply, do they, to an investigative entity?

[00:16:04] Speaker 02:
Well, I think a distinction is that with grand juries, I mean, that can be sort of ex parte, and maybe the defendant isn't involved in that.

[00:16:12] Speaker 02:
But if you look, and this is common ground at page 12 of the government's brief, and this is quoting from the AJ's decision, the agency was, quote, required to obtain information from the employee who is the subject of the investigation.

[00:16:24] Speaker 01:
Which they did.

[00:16:26] Speaker 01:
They called them in.

[00:16:30] Speaker 01:
He said whatever he had to say.

[00:16:32] Speaker 01:
And then subsequently, he was given an opportunity to tell his side of the story to the decision maker, right?

[00:16:40] Speaker 01:
In deciding the removal.

[00:16:42] Speaker 02:
To Mr. Isaacs, yeah.

[00:16:43] Speaker 02:
If I could break that question to two points.

[00:16:45] Speaker 02:
The first point,

[00:16:47] Speaker 02:
Although the AJ says that he was given an opportunity, it was a 23-minute interview.

[00:16:53] Speaker 02:
He was not apprised of the specific allegations against him.

[00:16:56] Speaker 02:
He was told that there was hostile workplace and sexual harassment, but wasn't apprised of the who, the what, the when, or the where.

[00:17:04] Speaker 02:
And then again, when the investigator was asked about this error, he testified.

[00:17:07] Speaker 02:
And this was not captured in AJ's opinion.

[00:17:10] Speaker 02:
Whether he was asked or not, I don't think is particularly germane, because my sense is he would have just denied it.

[00:17:16] Speaker 02:
That prejudgment of guilt, again, has no place in agents' investigations.

[00:17:19] Speaker 01:
That's not the adjudicator.

[00:17:21] Speaker 01:
That's the investigator.

[00:17:23] Speaker 01:
Where is it that said that the adjudicator, I mean the investigator, has to do any more than give him an opportunity to speak his piece?

[00:17:34] Speaker 02:
Well, if you don't tell him what he's being alleged of doing, he's not able to speak his piece in any meaningful way.

[00:17:39] Speaker 02:
That's number one.

[00:17:40] Speaker 02:
Number two, the government also, excuse me, the lead investigator, he testified in his deposition that he saw this as more than a fact-finding investigation.

[00:17:48] Speaker 02:
He saw this as almost like a court-like proceeding.

[00:17:51] Speaker 02:
And I'd submit, you brought up the point that he was allowed

[00:17:54] Speaker 02:
before the decision-maker, after the investigation had already taken place, after it had gone through the recommending official to present his case before the final decision-maker.

[00:18:11] Speaker 02:
The problem is there, he had a couple weeks to prepare compared to

[00:18:16] Speaker 02:
the investigative machinery of the state that was able to put together an agency report, interview more than a dozen witnesses under oath, and failed to comply, we submit, and this is again page 12 of the government's brief, with the requirement to obtain information from the employee who is the subject in the investigation.

[00:18:30] Speaker 02:
You can't do that if you don't tell the employee what he's accused of doing.

[00:18:34] Speaker 00:
So what specific relief are you requesting for your client?

[00:18:38] Speaker 00:
Can you specifically state what the relief is you're requesting?

[00:18:41] Speaker 02:
we request setting aside his removal at a minimum we think it's appropriate to either with regard to whistleblower remand for with regard to both defenses it could be to remand to the board to address all the relevant evidence including countervailing evidence again even if you if if

[00:18:59] Speaker 02:
you're not disturbing underlying findings, there's still, we submit, we've identified issues that the AJ below did not identify, that neither the board or the AJ grappled with.

[00:19:08] Speaker 02:
So that's one.

[00:19:09] Speaker 02:
There's also the point that with the harmful procedural error, there'll be an opportunity if that's, you know, under this court's precedents like Ward, the government would be able to pursue removal against him, you know, if it turns out that there was a harmful procedural error.

[00:19:25] Speaker 02:
And so that's the remedy that we're seeking.

[00:19:27] Speaker 02:
Either setting aside his removal outright or remanding to address all the relevant evidence.

[00:19:32] Speaker 04:
Thank you, Mr. Kazem.

[00:19:33] Speaker 04:
You've used up all of your time.

[00:19:35] Speaker 04:
And then some.

[00:19:37] Speaker 04:
But we will most likely give you two minutes for rebuttal, OK?

[00:19:41] Speaker 04:
I appreciate it, Your Honor.

[00:19:42] Speaker 02:
Thank you so much.

[00:19:43] Speaker 04:
Let's hear from the government.

[00:19:54] Speaker 03:
Good morning, and may it please the court.

[00:19:56] Speaker 03:
The board properly sustained the removal because there was strong evidence that VA would have removed Mr. Oliva regardless of his IRA appeals.

[00:20:07] Speaker 03:
That evidence in this case was strong because five women testified credibly that Mr. Oliva engaged in inappropriate conduct on 10 separate occasions in the 2014-2015 timeframe.

[00:20:25] Speaker 03:
The administrative judge observed the women testify and found them credible.

[00:20:31] Speaker 03:
far more credible than Mr. Oliva's denials.

[00:20:35] Speaker 04:
What kind of procedural error that occurs during an investigation in an agency would be serious enough of a procedural error that would warrant undoing not only the board's decision but also the removal decision by a deciding official?

[00:20:57] Speaker 03:
It's hard to imagine how some procedural error in an investigatory phase would necessarily compel the conclusion that that would be harmful error.

[00:21:11] Speaker 04:
Could there not be a prejudicial kind of procedural error that took place during the investigation?

[00:21:16] Speaker 03:
I suppose it's possible, but there's been no showing of that here.

[00:21:23] Speaker 04:
What's our case law on that?

[00:21:25] Speaker 04:
terms of possible, you know, the possibility that an error that occurs during the investigation is prejudicial and so therefore would warrant undoing the removal decision.

[00:21:40] Speaker 03:
Well, I think the closest case that I'm aware of that I could speak on, Your Honor, would be Whitmore.

[00:21:47] Speaker 03:
In that case, there was alleged impropriety in the investigatory stage.

[00:21:55] Speaker 03:
Witness tampering was the allegation and some other bias or what have you.

[00:22:01] Speaker 03:
And in that case, it wasn't the procedural error per se, because it hadn't been proven.

[00:22:09] Speaker 03:
It was just alleged.

[00:22:11] Speaker 03:
But the mere allegation of that called into question the strength of the evidence under car factor one,

[00:22:20] Speaker 03:
and the agency's motivation to retaliate under car factor two.

[00:22:27] Speaker 03:
And in those circumstances, this court held that those were all evidentiary considerations that the board had to consider in the first instance.

[00:22:41] Speaker 03:
And because it was excluded, it was remanded.

[00:22:46] Speaker 03:
But if I may finish, it's hard to imagine that just per se the procedural error in the investigation itself would necessarily amount to harmful error because there's so many other procedural steps.

[00:23:01] Speaker 03:
You have the notice of proposed removal, you have the removal decision, then you have an entire de novo consideration of the evidence by the board

[00:23:11] Speaker 03:
So I think it is an attenuated suggestion.

[00:23:14] Speaker 04:
There'd have to be a very strong nexus you're saying to the car factors that would raise questions or raise serious doubts as to the findings under the car.

[00:23:24] Speaker 03:
I think so and I think Whitmore's as close as

[00:23:27] Speaker 03:
as the petitioner is ever going to get on that.

[00:23:30] Speaker 03:
But Whitmore is different in a number of respects.

[00:23:35] Speaker 03:
First and foremost, as I believe the question, the discussion before acknowledged that

[00:23:45] Speaker 03:
this administrative judge never actually excluded Dr. Russell.

[00:23:50] Speaker 03:
She, on page 1022 of the appendix, approved Dr. Russell for testimony in this matter.

[00:23:59] Speaker 03:
And then at 1028 of the appendix, Mr. Oliva, through his prior counsel, withdrew that

[00:24:10] Speaker 03:
designation of the witness.

[00:24:12] Speaker 01:
After the administrative judge said, I don't really think it's relevant.

[00:24:16] Speaker 01:
So you could view, as they do, the act by counsel as being acquiescence into a ruling by the judge.

[00:24:26] Speaker 01:
And maybe they could have been more robust in pushing back.

[00:24:29] Speaker 01:
But it seems to me the only argument on that front, or at least the strongest argument you have, is that she came back and said, well, if you want to re-urge

[00:24:40] Speaker 01:
Dr. Russell, I'm open to that.

[00:24:43] Speaker 01:
And he did not pursue that.

[00:24:45] Speaker 03:
There really is a dual problem with the failure to preserve that issue.

[00:24:53] Speaker 03:
The administrative judge excluded two witnesses, neither of whom was Dr. Russell on page 1022 of the appendix.

[00:25:04] Speaker 03:
Interpreting that ruling

[00:25:07] Speaker 03:
Mr. Oliva's prior counsel withdrew Dr. Russell, even though he had been approved.

[00:25:15] Speaker 03:
And so that's problem number one, failure to preserve the argument.

[00:25:20] Speaker 03:
Number two, at page 343 of the appendix, the administrative judge said, OK, you want to withdraw?

[00:25:29] Speaker 03:
I agree.

[00:25:30] Speaker 03:
We're going to withdraw that witness from approval.

[00:25:33] Speaker 03:
But if anyone thinks that it's necessary for their case,

[00:25:38] Speaker 03:
tell me, and I'll consider it."

[00:25:42] Speaker 03:
And yet, Mr. Oliva never came back, never requested a ruling, and never had that witness excluded.

[00:25:50] Speaker 03:
I mean, the essence of preserving an issue is to advance it and have it rejected.

[00:25:57] Speaker 03:
And that was never done.

[00:25:58] Speaker 01:
What was the state of Mr. Oliva's knowledge

[00:26:04] Speaker 01:
of the charges against him at the point of the investigation?

[00:26:10] Speaker 01:
That's my first question.

[00:26:11] Speaker 01:
The second question is, at what point was he given the list of specifications?

[00:26:19] Speaker 03:
I do not know, standing here today, everything that he knew at the investigatory stage.

[00:26:25] Speaker 01:
Well, the opposing counsel said he didn't know anything.

[00:26:27] Speaker 01:
He wasn't told anything other than the most general characterization of sexual harassment.

[00:26:34] Speaker 01:
Is that true or not?

[00:26:36] Speaker 01:
I didn't see anything in the record.

[00:26:39] Speaker 01:
And there really wasn't, so far as I could tell, in the briefs much, if anything, said on that point.

[00:26:47] Speaker 01:
But I really would be interested in knowing, to the extent that we can get to it, how we could figure that out and where we would look.

[00:26:55] Speaker 03:
I am at the same disadvantage, Your Honor, because the record does not answer that question.

[00:26:59] Speaker 03:
And so I cannot

[00:27:01] Speaker 03:
really comment intelligently on that.

[00:27:04] Speaker 03:
I don't have a record on that.

[00:27:07] Speaker 04:
Just following up on that, I guess one of the key arguments we heard today is that Dr. Russell had indicated that it was to no good use to ask Mr. Oliver specific questions about these specifications because he just would have denied them.

[00:27:27] Speaker 04:
And that suggests some kind of

[00:27:32] Speaker 04:
preordained view that, in fact, he actually did commit those misconduct allegations.

[00:27:46] Speaker 03:
Oh, I don't think so at all, Your Honor.

[00:27:48] Speaker 04:
And the final point on it, therefore, this is something that the administrative judge needed to address but did not.

[00:27:57] Speaker 03:
No.

[00:27:58] Speaker 03:
Well, I have several answers to that question.

[00:28:01] Speaker 03:
But just as a matter of sequence and timing, there were not specifications in existence until the notice of proposed removal, which came after the entire investigatory phase had concluded.

[00:28:17] Speaker 03:
Then, subsequently,

[00:28:20] Speaker 03:
During the board proceedings in the process of discovery, there was a deposition of Mr. Russell.

[00:28:26] Speaker 03:
And he was asked, well, would it have made any difference to go through point by point and get into all these factual issues with Mr. Oliver?

[00:28:35] Speaker 03:
And Dr. Russell, who had observed Mr. Oliver's demeanor and tenor during his

[00:28:48] Speaker 03:
25, 30-minute submission before the investigatory board saw a person who was denying everything and felt he did nothing wrong.

[00:29:02] Speaker 03:
And so it was hard for Dr. Russell to imagine, well, what would have been the point?

[00:29:10] Speaker 03:
He could have done more.

[00:29:11] Speaker 03:
You could always say that.

[00:29:14] Speaker 03:
The administrative judge could have written more.

[00:29:16] Speaker 03:
But she did say, not once, not twice, but three times, that she considered the totality of the evidence in making her credibility assessments.

[00:29:28] Speaker 01:
Now it appears that there was at least some information

[00:29:32] Speaker 01:
in Mr. Oliva's... Do you know if it's Oliva or Oliva?

[00:29:37] Speaker 01:
We're using both pronunciations.

[00:29:39] Speaker 01:
Do you happen to know which is correct?

[00:29:40] Speaker 03:
Maybe... I would defer to my friends, Mr. Kazem, about that.

[00:29:44] Speaker 01:
Oliva.

[00:29:47] Speaker 01:
Okay.

[00:29:48] Speaker 01:
Mr. Oliva has asked about

[00:29:54] Speaker 01:
whether, and this is in the investigative interview, as I understand it, whether he ever made a statement to an employee that the employee was no better than the spawn of a rape victim, which is a specific allegation, and he denies it.

[00:30:08] Speaker 01:
Now, I don't know, having looked through his testimony before the AIB, there were a couple of other references in general, but nothing

[00:30:19] Speaker 01:
specifically identifying the complaining witnesses or anything else.

[00:30:30] Speaker 01:
I didn't see that in the questioning that was done against him.

[00:30:34] Speaker 01:
So the suggestion is that either the investigative board was not confronting him with the specificities of the charges or that it was being pretty general in the way that they're approaching.

[00:30:47] Speaker 01:
Would you say that's a fair characterization?

[00:30:52] Speaker 03:
Again, I'm at a disadvantage because I don't know what Mr. Oliva saw in advance of that interview at the investigative stage.

[00:31:00] Speaker 03:
But I do think that there's a larger point here that I'd like to make, which is, OK, the investigation was the investigation.

[00:31:09] Speaker 03:
But then Mr. Oliva received a notice of proposed removal.

[00:31:14] Speaker 01:
And with that notice, did he get all of the specifications?

[00:31:18] Speaker 03:
Yes, yes indeed.

[00:31:19] Speaker 03:
All 10 specifications are set forth in the notice.

[00:31:22] Speaker 03:
And then before his removal, he was allowed to give an oral statement.

[00:31:27] Speaker 03:
This was an oral statement for the ages.

[00:31:30] Speaker 03:
I have never in 17 years of almost 18 years of government practice, I've never heard of an employee getting a five hour oral rebuttal to all the charges.

[00:31:42] Speaker 03:
This

[00:31:43] Speaker 03:
petitioner had plenty of due process throughout.

[00:31:49] Speaker 03:
And then at the board stage, he was able to present copious evidence he testified at length regarding every single one of these specifications, and it all came down to credibility.

[00:32:04] Speaker 01:
Do you know if there is any other agency?

[00:32:07] Speaker 01:
I mean, typically, let me back up.

[00:32:09] Speaker 01:
Typically, in these kinds of processes,

[00:32:13] Speaker 01:
To my knowledge, the investigation is very informal.

[00:32:18] Speaker 01:
Maybe somebody has been asked to talk to X, Y, or Z. And then a recommendation is made to a higher up who issues, if the higher up thinks it's actionable, a notice of proposed removal or sanction.

[00:32:37] Speaker 01:
And then at that point, there is, as you were describing,

[00:32:41] Speaker 01:
a process that includes notice and an opportunity to be heard and an opportunity frequently to be heard in person and with the assistance of counsel.

[00:32:53] Speaker 03:
Yes.

[00:32:53] Speaker 03:
And he received all of that due process.

[00:32:56] Speaker 03:
And so it's hard to imagine how anything that happened in the investigation could be a harmful procedure.

[00:33:02] Speaker 01:
My question really is, do you know of any other agency that has this precursor investigative process such as the AIB

[00:33:11] Speaker 01:
that's much more elaborate than the one individual appointed to go talk to a few witnesses and make a recommendation as to possible action.

[00:33:23] Speaker 01:
I know it's true in the VA.

[00:33:24] Speaker 01:
I don't know if it's true anywhere else.

[00:33:30] Speaker 03:
I have heard in my travels

[00:33:33] Speaker 03:
that the State Department has a rather robust investigatory process, but I'm really not able to comment, you know, government-wide.

[00:33:43] Speaker 01:
Am I right in thinking that in most instances the investigative process is very informal?

[00:33:50] Speaker 01:
More informal than what's laid out in

[00:33:52] Speaker 03:
Generally speaking, yes.

[00:33:53] Speaker 03:
And there's been no pointing to a binding regulation that would entitle him to more than the extensive due process that Mr. Oliva received.

[00:34:05] Speaker 00:
So Counsel, a couple of questions for you.

[00:34:07] Speaker 00:
One, can you give us specific JA sites that help support up the argument that you were making to us about the extensive process he received?

[00:34:16] Speaker 00:
Like, you've got specific JA pages that you could say right now to that effect that would be helpful.

[00:34:22] Speaker 00:
And then my second question is just to follow up on what you've been talking about, the considerable, well, opposing counsel has been talking about considerable countervailing evidence that was not, in his view, considered by the AJ.

[00:34:39] Speaker 00:
If you could respond to that as well, those would be the two questions I need answers to.

[00:34:43] Speaker 03:
Sure.

[00:34:44] Speaker 03:
As for JA sites, we've got those in our brief.

[00:34:47] Speaker 03:
I don't have those at the top of mind.

[00:34:49] Speaker 00:
It was the five-hour thing covered in the brief?

[00:34:52] Speaker 03:
I believe so.

[00:34:52] Speaker 03:
I believe so.

[00:34:54] Speaker 03:
As far as Mr. Oliva arguing, his main arguments are everything is he said, she said, and the administrative judge was ignoring all of his evidence.

[00:35:10] Speaker 03:
Neither of those is a good argument.

[00:35:18] Speaker 03:
The argument is, well, these witnesses should have been deemed less credible or the evidence was less strong because it was he said, she said.

[00:35:28] Speaker 03:
But that would require this court to reassess the credibility of those witnesses or reweigh the evidence.

[00:35:34] Speaker 03:
And that's not what the standard of review allows.

[00:35:38] Speaker 01:
It's not he said, she said.

[00:35:40] Speaker 01:
It's he said, they said.

[00:35:41] Speaker 03:
Exactly.

[00:35:42] Speaker 01:
That was my next point.

[00:35:43] Speaker 01:
We have five different people that multiplies.

[00:35:46] Speaker 01:
the likelihood that they're not all lying, unless you accept the Topeka conspiracy theory.

[00:35:52] Speaker 03:
Which the judge addressed, and it was with, there was no, she found that to be incredible at page.

[00:35:58] Speaker 04:
Wait till people that didn't like him.

[00:36:02] Speaker 03:
Perhaps.

[00:36:04] Speaker 04:
Well, he didn't promote certain people.

[00:36:06] Speaker 04:
And then the theory goes there were a bunch of disgruntled GS9 employees that, because he didn't give the promotion to the right people.

[00:36:15] Speaker 03:
Right.

[00:36:17] Speaker 03:
And he said, she said, the fundamental problem with it, as Judge Bryson just alluded to it, is that it falsely equates credible testimony from five women with his less credible denials.

[00:36:31] Speaker 03:
And the administrative judge was entitled to look at these five courageous women who came forward

[00:36:41] Speaker 03:
to report Mr. Oliva's behavior and testify about very uncomfortable circumstances.

[00:36:48] Speaker 03:
Inappropriate conduct was the charge.

[00:36:50] Speaker 03:
That's putting it mildly.

[00:36:52] Speaker 03:
I won't get into exactly what it is.

[00:36:54] Speaker 03:
The court already knows.

[00:36:56] Speaker 03:
But this employee had to be removed.

[00:37:00] Speaker 03:
This cannot be the conduct that's acceptable in the federal government.

[00:37:06] Speaker 04:
I can't recall if Judge Cunningham had another question for you to respond to, but I do just want to jump in on this question of he said, she said, and the clear and convincing standard of proof.

[00:37:21] Speaker 04:
What if there was only one witness?

[00:37:25] Speaker 04:
And so it's not a he said, they said.

[00:37:27] Speaker 04:
It really boils down to a he said, she said.

[00:37:31] Speaker 04:
And there's no corroborating evidence.

[00:37:34] Speaker 04:
Can that still be enough for clear and convincing evidence?

[00:37:40] Speaker 04:
I think it would have to come... If so, what case law tells us that?

[00:37:44] Speaker 03:
I don't think we have that case on point, Your Honor.

[00:37:49] Speaker 03:
But I would say this case is about as far from that as you could imagine.

[00:37:54] Speaker 03:
So I don't think the court needs to go there.

[00:37:56] Speaker 03:
Because in this case, the five women who testified, their testimony was corroborated by contemporaneous notes, by reports to agency managers, by other witness testimony, by Mr. Oliva's own admissions.

[00:38:12] Speaker 03:
and by prior witness statements.

[00:38:15] Speaker 03:
And so, as the trier of fact, the administrative judge was entitled to evaluate witness demeanor and credit their sworn accounts, most of which was corroborated.

[00:38:27] Speaker 03:
If we just zoom out, out of the 10 specifications, only two, specifications E and H, were proven with testimony that was deemed credible but not corroborated.

[00:38:40] Speaker 03:
So the administrative judge properly concluded based on credible and corroborated testimony for eight of the specifications that VA's evidence in support of the charge was strong overall.

[00:38:56] Speaker 03:
And as for the argument, Judge Cunningham, that you had asked about ignoring the evidence,

[00:39:03] Speaker 03:
and Mr. Kazem's argument that we're just relying on a presumption that all the evidence was considered.

[00:39:12] Speaker 03:
Of course there's a presumption, but we don't even need that here because the administrative judge said three times on pages 23

[00:39:21] Speaker 03:
25 and 53 of the appendix that she considered the totality of the evidence in making her credibility assessments.

[00:39:30] Speaker 03:
And there is nothing in this record that has been pointed to to suggest that she purposefully disregarded any of Mr. Oliva's evidence.

[00:39:40] Speaker 03:
And so for these reasons, the VA properly removed Mr. Oliva.

[00:39:44] Speaker 03:
He has failed to demonstrate any error in the careful and thoroughly considered opinion

[00:39:50] Speaker 03:
below, and the court should affirm.

[00:39:53] Speaker 03:
We'll stand on the briefs.

[00:39:54] Speaker 03:
Thank you.

[00:39:55] Speaker 04:
Thank you.

[00:39:57] Speaker 04:
We'll give Mr. Catherine three minutes.

[00:40:01] Speaker 02:
Thank you, Your Honor.

[00:40:12] Speaker 02:
Your Honor, I'll start off with the harmful procedural error defense, because I think that defense is really critical.

[00:40:17] Speaker 02:
And it's key here, it's important to recognize here, that Mr. Oliva, the appellant, was not apprised of the allegations against him.

[00:40:24] Speaker 02:
You know, he was not apprised of the who, the what, the when, the where.

[00:40:29] Speaker 02:
He manages over 500 employees, but he was not given this information in order to identify investigative avenues, interview leads that the agency could have pursued, such as, for example, speaking... Where in your brief do you raise this?

[00:40:43] Speaker 01:
Because I didn't remember this as being

[00:40:45] Speaker 01:
an issue that you particularly flagged.

[00:40:47] Speaker 01:
I mean, maybe it was mentioned in passing, but the fact that he was not given sufficient information in advance of the investigative hearing to fashion a defense.

[00:41:03] Speaker 02:
Right.

[00:41:04] Speaker 02:
And we address, for example, on page 53 to 54,

[00:41:08] Speaker 02:
of our opening brief, the investigators largely failed to ask Mr. Oliva about the misconduct alleged against him.

[00:41:15] Speaker 01:
That's not talking about his lack of information.

[00:41:20] Speaker 02:
Well, thus impeding his ability to provide a full and complete defense.

[00:41:23] Speaker 01:
No, but that's focusing on their failure to ask him questions, which it seems to me is kind of pointless.

[00:41:31] Speaker 01:
He had an opportunity to speak to this.

[00:41:33] Speaker 01:
But what you don't say here as far as I can see is, and,

[00:41:37] Speaker 01:
he didn't have information about what he was being charged with or what the allegations were.

[00:41:43] Speaker 01:
You say that anywhere, either in hyperbole or in effect.

[00:41:49] Speaker 02:
Right.

[00:41:50] Speaker 02:
Again, I'd point most particularly to page 53 and 54 of the brief, because I think that highlights that Mr. Oliva did not know the charges against him.

[00:42:00] Speaker 02:
And again, it's not a matter of... It doesn't say that.

[00:42:02] Speaker 01:
But you will agree that it does not say that.

[00:42:04] Speaker 01:
It says that they failed to ask

[00:42:07] Speaker 01:
about the facts underlying the specifications.

[00:42:11] Speaker 01:
But that doesn't mean he wasn't aware of what either in general or specifically the charges were.

[00:42:19] Speaker 02:
Right.

[00:42:19] Speaker 02:
And I think I'd point to Appendix 192, where the only evidence that's in the record is an email from the lead investigator, where he flags, we're looking into hostile work environment and sexual harassment.

[00:42:34] Speaker 02:
But there is not any discussion of the allegations, of who made the allegations.

[00:42:39] Speaker 04:
And so the AIB did ask about a couple particular

[00:42:44] Speaker 04:
I don't know what to call these whoppers of accusations against him.

[00:42:49] Speaker 04:
Spawn of the rape language and the who knows business.

[00:42:54] Speaker 02:
Right.

[00:42:55] Speaker 02:
But there were 10 allegations.

[00:42:56] Speaker 02:
There's two in general terms.

[00:42:58] Speaker 02:
And without knowing, for example, who made the allegations, when they were made, Oliver raises, for example, with respect to one of the comments that he had produced travel records in the AJ proceedings.

[00:43:09] Speaker 02:
He didn't have an opportunity in the AIP.

[00:43:13] Speaker 02:
investigation to show that he wasn't in Topeka at the time that those allegations were made.

[00:43:18] Speaker 02:
And this just goes to a larger point that, again, the right is not just the whistleblower to provide his defense before the final decision maker.

[00:43:24] Speaker 02:
It's the agency is supposed to speak with the employee so that the agency can collect material information, can either confirm or refute.

[00:43:37] Speaker 02:
Yes, Your Honor.

[00:43:38] Speaker 02:
Again, we respect that, you know, reverse or at minimum voctr is warranted so that, you know, the A.J.

[00:43:45] Speaker 02:
can address in the first instance the harmful procedural error and the lack of information that Mr. Oliva was given to him.

[00:43:52] Speaker 02:
And then, with respect to the clear and convincing defense, again, the standard is you have to provide under Whitmore and under Smith an in-depth discussion and full discussion of the facts that accounts for all countervailing evidence.

[00:44:03] Speaker 02:
That did not happen here.

[00:44:04] Speaker 02:
Thank you, Your Honors.