[00:00:03] Speaker 03:
We have four cases this afternoon. The first is number 24, 1463 Burns versus DHS. Mrs. Kurtz.

[00:00:26] Speaker 03:
Go ahead.

[00:00:30] Speaker 03:
You should stand at the podium.

[00:00:38] Speaker 02:
Good afternoon.

[00:00:40] Speaker 02:
My name is Serena Kurtz, and I represent the appellant Sean Burns in this matter.

[00:00:46] Speaker 02:
We are here arguing that the award under the initial decision for damages was arbitrary and against settled law. When you have an award that starts and includes the sentence, if ever there was a petition that should be dismissed, it is this one.

[00:01:04] Speaker 02:
The resulting decision automatically looks arbitrary.

[00:01:09] Speaker 02:
And it appears that in that decision, that court is holding Mr. Burns liable for actions of his prior counsel when it discusses the attorney's fee award.

[00:01:22] Speaker 02:
This court has the ability to remand this because it is arbitrary. And while the agency argues that Mr. Burns had limited success in his appeal before the MSPB, we would disagree.

[00:01:36] Speaker 02:
The court ruled that the notice of proposed removal should not have been issued. Every action that took place after that was based on that notice of proposed removal.

[00:01:47] Speaker 01:
Are you contesting the fact that...

[00:01:51] Speaker 01:
According to what I've read, your client won out of two out of the 15 allegations of whistleblowing.

[00:01:57] Speaker 02:
We agree that the court ruled that he won on two. But what we're saying is that actions three, four, and five would never have existed if not for action two. Because my client was removed from service in February to do the investigation. In April, they issued the notice of proposed removal. And at that point, they placed him at the front desk changing his time schedule. They then moved him out to the airport to hand out uniforms, and then the notice of proposed removal was rescinded.

[00:02:29] Speaker 02:
So if it had not been for that notice of proposed removal in the beginning, they never would have taken Actions 3, 4, and 5, because they didn't take them until they issued that notice of proposed removal, which that is one of the actions that the court said they should not have taken.

[00:02:44] Speaker 03:
So while we agree... How does this bear on damages?

[00:02:47] Speaker 02:
I'm sorry?

[00:02:48] Speaker 03:
How does this bear on damages?

[00:02:50] Speaker 02:
The court said that because we have limited success, and the agencies also have argued that because it's limited success, it should be a very minor amount of damages. But we argue that the damages continued through until at least 2018 when the agency changed his EPMP from a zero to an except and meets expectations. And because of that, he should have more damages based on the fact that he spent years fighting this as well as those other actions never would have occurred.

[00:03:24] Speaker 02:
So any damage that comes from those other actions should also have been part of his damage award.

[00:03:29] Speaker 03:
What was the whistleblowing allegations he made?

[00:03:33] Speaker 02:
My client, there was a third party that did bag inspections, and he said that that went against the protocols that should have been in place at that time. And it was found to be that he was correct. without going into the specifics of secured security information.

[00:03:56] Speaker 02:
But later it was found that what he did whistleblow about was in fact incorrect, and he was correct.

[00:04:05] Speaker 01:
So let's assume we don't agree or we don't accept that we at this level should be adjudicating the relationship between the whistleblowing charges that were actually found and the other stuff is being caused by that. So let's assume we're looking at just the two allegations, two and five. Does that do away with most all of your arguments?

[00:04:27] Speaker 02:
No, because when you look at the award itself, the judge themselves made even what they gave to appear to be arbitrary based on the fact that she said that it should have been dismissed, that she shouldn't have given any damages. But also under Perlick, the standard of what you should see for compensatory damages should have included some of his medical. The court themselves quoted part of those medical records but then also said that those records didn't exist. If you're looking at it from a preponderance of the evidence, If the court can quote the record and say that they exist, then they should have been part of his award for damages, as well as lost wages.

[00:05:06] Speaker 02:
Even if you take out the Sunday differential, my client still lost pay.

[00:05:12] Speaker 02:
based on the fact that that EPMP was never changed until 2018, and it's undisputed that even in 2018 when it was changed, he never received the raise or the bonus that would have gone with that back in 2015. And under Perlick, this court has said that you don't have to prove without a doubt that you would have gotten a promotion, that future work can be based on a preponderance of the evidence. And in this matter, the court did not make that kind of a ruling. They simply gave him driving back and forth to his attorney's office and some non-vacutionary damages.

[00:05:55] Speaker 02:
It is our determination that the court in its ruling said that there was no medical records provided, but then also quoted those medical records. If there was an issue with evidence, the court should have either issued an order stating there was a deficiency or held a hearing.

[00:06:14] Speaker 02:
In a matter where they're going to say things like there aren't any records here or the only thing he brought forward was all of these letters from his coworkers saying how this affected him, there should have been a hearing so that they could have had a sworn testimony or they could have gotten those records. But rather than do that, she gave a minimal award because she couldn't dismiss the action in its entirety.

[00:06:40] Speaker 03:
Did you make this argument in your opening brief that somehow the government should pay damages for the other actions which were not found to be whistleblowing?

[00:06:51] Speaker 02:
We did make the argument that the issuance of the NOPR taints all the rest of the actions.

[00:06:56] Speaker 03:
Where did you make that argument in the brief?

[00:06:59] Speaker 02:
It was under the number, the third argument, I believe, and I don't have my brief directly in front of me today.

[00:07:30] Speaker 01:
Well, did you make that argument before the administrative judge, and can you deal with it in her opinion?

[00:07:36] Speaker 02:
We did make that argument before the administrative judge, and she did not really address it in her decision except to say that this is what she was awarding.

[00:07:47] Speaker 03:
I didn't see it in the blue brief, but if you can show me, I'd be happy to look at it.

[00:07:58] Speaker 03:
Do you have your brief at your desk?

[00:07:59] Speaker 02:
I do not have my brief at my desk.

[00:08:01] Speaker 03:
You're supposed to bring your briefs with you when you argue.

[00:08:05] Speaker 02:
And I understand it's actually with the rest of my belongings. I traveled here from Florida.

[00:08:24] Speaker 02:
I apologize. I'm not sure where it is in the brief. Okay.

[00:08:30] Speaker 02:
Based on the fact that we find that the court ruled arbitrarily on the non-vacutionary damages and awarded very little compensatory, we feel the court should remand it for further hearing.

[00:08:45] Speaker 02:
Thank you. Ms.

[00:08:50] Speaker 03:
Auburn?

[00:09:00] Speaker 00:
Afternoon, Your Honors. May it please the Court?

[00:09:03] Speaker 00:
Excuse me.

[00:09:05] Speaker 00:
In Mr. Burns' motion for damages, he does not meet his standard to establish entitlement to the more than $3 million in damages he requested before the Board. That determination by the Board is supported by substantial evidence where the Board was able to determine a connection between the requested damages and the two personnel practices that were found to be prohibited. It did award damages and otherwise found it could not Mr. Burns has not identified any error here on appeal, as Your Honor's point out.

[00:09:34] Speaker 01:
Do you know the answer to Judge Dyke's question to your friend?

[00:09:38] Speaker 00:
Yes, Your Honor. I think I can answer it. My read of my colleague's brief is that it's not so specifically articulated as an argument about the effect of those four personnel practices on the two that were found upheld. I believe that in our brief we address that to the extent she does make that argument, we believe that's inconsistent with this court's precedent, which is found that any award of damages must flow only from those two practices. or rather, in this case, the two personnel practices that were successful, or the two IRA claims that were successful in the earlier decision.

[00:10:15] Speaker 01:
Can I just ask you a more general question about the medical expenses? I assume at least a portion of these medical expenses may have been covered by insurance. What happens if an employee gets an award? Are they obligated to reimburse their health insurance coverage, or is that just a matter that the health insurance folks have to come after them? Do you know how that works? If you don't know...

[00:10:40] Speaker 00:
I hesitate to answer with total certainty. I think that for where the collateral source rule applies, a petitioner is entitled to recover for expenses a medical insurance company has paid under the insurance.

[00:10:55] Speaker 00:
There are two separate medical requests, and I imagine that might be part of the source of the question, is that some of the medical expenses were requested as consequential damages, so those expenses claimed to be out-of-pocket versus those paid by the insurance. To Your Honor's specific question about a petitioner's obligation to repay insurance company, that I don't know the answer to.

[00:11:17] Speaker 00:
But if it would be helpful, I can, of course, figure that out. Okay.

[00:11:26] Speaker 00:
I think that I certainly welcome the panels, any additional questions from the panel, but I will just say that Mr. Burdens had the burden here. It was his materials that provided the record that the board considered quite thoroughly, and where there was substantiated claims, either of consequential damages or of compensatory ones, the board did what it could in awarding those limited damages, but found it was unable to otherwise, and a remand is not a proper solution to cure any of these claims otherwise.

[00:12:06] Speaker 00:
All that to say, we ask that the court affirm. Thank you.

[00:12:19] Speaker 02:
Well, my colleague states that there was not substantial evidence. That's not the weight of the factors that go into making the determinant for the damages. It's a preponderance of the evidence. And here you have an administrative judge who both... denies that records exist and also uses those same records in order to make her ruling. By preponderance of the evidence, either those records exist and therefore she used them or they didn't.

[00:12:49] Speaker 02:
And so it's difficult to say that this is not an arbitrary ruling and that it is not against settled law when you're not looking at substantial.

[00:12:59] Speaker 01:
She used the records, but then she didn't use them. I thought I understood. She didn't think the records were sufficient documentation. or were sufficiently probative enough given the timing and so forth. So she did, I can see, she did look at them, but she found them insufficient. Isn't that what happened here?

[00:13:18] Speaker 02:
In one section in the appendix in 36, she says that those records, they don't exist. And then in 46, she uses them and quotes the dates of those. And now she may have been using them from the expert that had also reviewed all of those records.

[00:13:40] Speaker 02:
There's a reason that we don't cap damages on whistleblowers because awards like this where a judge has said that this petition should be dismissed, if she could dismiss it, has a chilling effect on our whistleblowers. At this point, Mr. Burns has given up 11 years in fighting these actions. And even after he has won on some of those actions, he's still in a position where the administrative judge is fighting against him for actions that are not of his making.

[00:14:14] Speaker 02:
That is all I have. Thank you.

[00:14:15] Speaker 03:
Okay. Thank you. Thank both counsel. The case is submitted.