good morning may it please the court i'm mike jacobs and it's my privilege to right represent pam mansfield and this important case of first amendment or tell you i'd like to reserve three minutes for a bottle  the rule in arthur and commit legal heir to grant defendant pfaff westfall immunity when failing to resolve the material disputed issues of fact with formal findings  disputed material which would controvert the finding that there was an unproven attack by miss pfaff on that day the court failed to make a finding whether  the incident photos showed an injury or not and they failed to make a finding that there was an eight o three a six washington state authorized factfinder judge michael swartz who heard three days of testimony and found an assault at work referring to the reconsideration order which said that the court viewed there was no disputed issue a fact that could controvert the finding that this was an unproven attack by the person who was a i saw it i am and i think  while the washington state factfinder jewish works found that an attack at work happened he said that he was not going to find out who done it he said the industrial turns that doesn't require that of him and the hair on his neck stood up when he thought of a individual walking the court possibly incriminating herself with her testimony about a crime and so he wasn't going to make any finding about who done it in this case though if there is probative value in the eight three six hearing examiners finding that an attack happened it makes it very likely that the person who testified i was there the whole time in a locked room and i was the only one there and i saw the whole thing is the attacker it and that when that person also testifies this was just a crazy person who went nuts and started yelling crazy things for no reason that person is the deliberate and despicable  this is an attorney general hayes in her west while certification said that if there is violence or there is deceit there is no westfall sort of occasion and this woman should stand alone without the shield of the sovereign behind her as a  defendant the the most important facts which dispute the u s district judge is finding that this is an unproven it's also include include th completely unexplained not on ms mansfield's forehead in the color photos taken by police at the emergency room the fact that there was some swelling according to the fact finder the and the fact that a trained psychologist treated her traumatized like which she were which was recognized as a p t s d like hyper vigilant anxiety reliving out of control trauma which couldn't happen if you did this to yourself the only explanation offered for why this was an unproven assault by an unproven attacker was the attacker the alleged attacker herself in this fast whose view was this was just a crazy person and these doctors don't know their business and they were just innocent they are just unwilling dupes of a crazy berzerk individual and of course the population least likely to be duped by a crazy person is the population of treating psychologists who are trying to rehabilitate such people there is no finding up or down in fact there is a an asse by the u s district judge that he doesn't have to make discretionary choices about this type of evidence or tell anybody what those choices are because they're not material because there is no possible evidence that is visit if the victim can't positively identify her attacker in a sneak up from behind interview that gets to my question i think that is what he decided right and i think we're  quoting you know her as as honest she says i don't know that was her testimony was so clear that she had no idea who might have attacked or so then you know it seems to me it's a question of burden and proof and with with that kind of definitive testimony i'm having trouble understanding what your point is because even if you still it was or wasn't you still need to get to who it was and it's quite clear that we have you know board of industrial insurance appeals they don't go there and i know you make a lot of citations to them but my understanding is they don't even make that term that's correct but i think you have the record you have a mistaken view of the record judge because i don't know is not the testimony the testimony is i believe that it was fast because after i got hit and i spun away she was standing immediately behind me did well that somebody other than faff a question i didn't see anyone the question posed was are you absolutely certain it was fact or is there a possibility it was someone else answer in this case there's a possibility  anything's possible of course and i don't believe possibilities are relevant evidence that make any fact more likely than not the other then i believe it was fast because she was standing right behind me when i spun around mansfield gave exhaustive testimony about all the number of factors that in mediately lead up which was that mansfield was supposed to make a report to the h r director in charge of faffing eleven o'clock that morning this attack occurred at ten faffing just hung up with the h r director who to talk about her behavior pfaff the day before had been reported to the study director for having violated the study protocols by bringing in under age child into an adult only facility for a blood test therefore possibly compromising this person's continuing part participation in the study pfaff had begun cussing at mansfield her supervisor over the course of the several months and faff her deficiencies as an employee had been pointed out on numerous occasions prior including another two other acts in violation of the institutional review board rules on the treatment of human subjects one mixing controlled substances without a license which was not entitled to do and the other which was recruiting people in a public setting without hipaa protections so a lot of factors led up to the attack mansfield was careful to say what would make a person erupt into violence i have no idea i'm not somebody who can say that but i do know what happened immediately before and i do know what happened when i spun around and who was standing there and who then immediately ran away from the scene of the crime down the stairwell your argument say that the judge also said in his in his written or oral decision that there i don't i don't put any stake in circumstantial evidence under this circumstance because if the vis victim can't positively identify the assailant there's no possible way and i believe that's clear that's a finding that is clearly erroneous and an abuse of discretion i believe that there are you know there are in addition to the medical facts i think the briefs handled pretty classically that the police investigated the wrong mechanism of attack when they made their investigation and instead of an attack from from the rear they've evaluated an attack from the side and the impeached that that could have happened when their own investigative reports officer gladson accompanying mansfield to the scene excuse me to the emergency room heard her say to the emergency room nurses twice i was attacked from behind and slammed into a desk not attacked from the side and slammed into the computer keyboard because mansfield keyboard was situated as i am facing if i faced ninety degrees to the right that's where her writing desk and her telephone and her printer were located and that's where she was sitting when she was attacked and that's what she told the e r she wrote a statement for officer gladson in the e r telling him exactly that and then he came back to the score to back to her office said hey sit out in this chair faced her against the computer and then said somewhere in the course of this discussion she for suddenly decided that she was attacked a different way because this didn't work well she was answering questions and then demonstrated what really happened even though they sat her in front of her keyboard to begin with so the wrong mechanism of attack was evaluated by the police i'd like to address the second issue which is the whether the it was the trial court's rule fifty six dismissal of the one nine hundred eighty three action error because of the disputed facts on the car said he issue that mansfield reported unlawful public health hazards to the unit to the us veterans affairs i r b co chair stevens burns m d and his veterans affairs public members and did so as a private citizen under the three factors in the dol universe of burbank case first she she was a u w employee veteran's affairs was outside her chain of command or outside her u w chain of command and we are talking about her terminations from u w second she was detailing what would more characters be more character aptly characterize a system of corruption because she was talking about lawlessness unlicensed personnel handling control drugs oh she'll violated equipment that did not have safety she's built into it at the needles without sheaths and at that word needle stick violations which was a bacterial contamination problem she was protesting that sixty c c syringes which she said are the size of a turkey paste or were being used to draw blood from the subjects in peripheral veins which are tiny and with you are pulling that much suction on a tiny vein the risk of either withdrawing from the vein and then pushing the needle into the tissue or collapsing the vein with so much pressure does not comport with the nursing standard of care that she is required to observe let me ask you about  the evidence i'm trying to put all the pieces together in your brief you talk about this january thirteenth two thousand and eleven memo from dr palmer to birds or about allegations both  palmer when he read from his letter he read the text of it from into the record without objection because we didn't have a marred or iran illegible version for him during the deposition and then he answered then he answered the following question after he read because of reports the i r b's that i know were made by pam i believed in a sabotage my research and i want to ban from the facility the question why link sabotage with reports to i r b's answer i felt that was one of the things that made me concerned that she might try to sabotage my research program so there was a smoking gun linking public interest reports about safety to the i b's outside the chain of command to sabotage and that you're saying it doesn't matter that the memo was excluded in admissible you have testimony that relies on the memo saying dr palmer you're under you're you you're the subject of a complaint about research methods that are unsafe they're going to the dual i r b's of v a and in his handwriting according to his testimony he wrote sabotaged my research and when asked why i write down sabotage my research when you get a notice that the i r b is looking into your safety practice he said pam mansfield has done a lot of things that i'm not happy with ok you might want to save your remaining time  one final sentence on that thought judge which is she was then he was then asked you never wrote that you were displeased you were just pleased with sabotage before you got a memo from the i r b and he said yes that's the rb th triggered me writing that so i'll reserve the rest thank you thank you kristen johnson on behalf of the united states right when i have listed here mr good friend is going to argue for seven half minutes and you're going to argue for seven and a half that ok with the court it's your choice never works out very you so it's clear that under arthur when a district court is deciding a westfall certification that they have the discretion to hold evidentiary hearing if needed and as necessary to resolve disputed issues of material fact so i guess what i'd like to start with is the issues that miss mansfield has who raised an address whether they were disputed or not disputed whether they are material or not material to the circuit we understand that your time is ticking so you want to get ok first one is the issue regarding her injuries we have a photograph taken the day of the incident that show and that is disputed there are disputed facts about the extent of the injuries and that then there's a series of medical records none of those medical records were disputed at all so the court took those as true those issues are not office that sort of thing the circumstantial evidence that would lead to faff so the only circumstantial evidence that was presented was that there was some there was limited access to miss mansfield during the incident only two people in the room well there it is a little conflicting because the testimony from mrs fath at that is that she believed they were alone in the room but the testimony from miss mansfield was that i do not know who came in and out of the room prior to the assault and i do not know who was in the room at the time of the assault ok but i would argue that that's not material because whether or not they are the only two people in the room at the time of the assault does not prove that miss committed it the assault have to prove it we're just trying to figure out whether the court was right in deciding there really isn't that she hadn't met her burden of even proving a material issue of fact existed so you heard him say that and this really came down to his client not being able to say that she saw who did this right but she spun around and said well that's the only person here and there were these other events leading up to so what is your response to that please so i would argue that all of this circumstantial evidence is not material to whether miss fath committed the assault it might show that she was injured that day but it does not show that miss faffed committed the why not just because the two of them are only in the room leaves open fifty percent say so back up if that's not what he said he said if they're just the two of them are in the room right the allegation the door is locked is that contested the door is locked but people have access there are limited access keys to a lot of people know ok and then and you heard him say that he did take up their time but you know you heard him say that there had been increasing tension and hostility and then within one hour she was going to make this report about the other person and so what about all of that ok why isn't that sufficient circumstantial evidence to to raise immaterial issue that's all i'm asking ok i'm sorry i misunderstood and i think that's the issue here so i think those three those four factors that he identified really go to miss pfaff's credibility right they don't prove that she committed assault they're trying to prove that she's not a credible person and that she could have well if i think there's a dispute about credibility i do know you think that well ok do you  think there's a dispute about credibility that the court needed to resolve i do not think that credibility was material and that the court needed to resolve it through an evidentiary hearing think the court took his plaintiff's at her word correct right as we do because we don't resolve credibility here ok so back to why was there no need so even assuming all of these allegations as true that there may have been a violation of a protection order in colorado several years ago that she may have been told the day before about miss mansfield reporting violations about her that she may have missed scent misrepresented how long she was on the phone prior to the attack they do not prove by a preponderance of the evidence that m pfaff committed the assault especially when in this case you have missed mansfield who refuses to identify her as the attacker and you have the independent police reports that find it's not possible raise some credibility or some challenges to the police reports but actually the challenges she raised did not go to the heart of the issue in the police reports that miss pfaff could not have committed the assault the two factors in that those police reports that the judge relied on were that the space between the chair and the bookcase was less than one foot and not miss couldn't i have physically wedged herself in between the chair and the bookcase as well as the fact come down to that no matter how you slice the facts there's not a preponderance to connect her to the right and that's exactly what the district court found and i think in this case because she refused to identify her as the attacker or wasn't it unable to i would not i would take issue with saying refusing i would credit her with being honest ok and able to identify her coupled with the independent police reports that the judge found the credibility attacks on the police reports may have impacted not so great investigation but did not cause credibility on their alternate findings that miss fafnir was the one who could not have committed the assault thank you thank you so if you can now put seven and a half back on the clock i understand discussed at all in this mansfield's opening but her complaints were not made as a private citizen they were made pursuant to her official duties as a research nurse and addressing matters that were not a broad public concern under the car city test the district court held that mansfield and the reports were not made directly to a v a r b that was my question as i read the record she made the violation goes to the human subjects division that's where it goes and they vet the report and they do an initial investigation and they report to the responsible i or the or i or b s in this case which are then charged with making a finding and making a recommendation of whether any corrections need to be made and that's exactly what happened here but even if the v a independent review board was somehow contacted directly and as judge found on reconsideration it was not miss mansfield was nonetheless an employee without compensation of the v a that's why the v a investigated and barred her from the premises she was subject to their control and she was basically had to obtain their approval in order to work at a v a project at a v a funded project on v a premises so the chain of command would include the v a i r b even had she made a complaint to them she did not with one exception all her reports were to the university of washington human subjects division and that exception was the february fifth two thousand and eleven complaint made to the state auditor which dr palmer indisputably was unaware of at any time and he was not aware of any complaints to anyone until december twenty eighth two thousand and ten when he was notified by the university's human subjects director that an allegation had been made her job description required here it's to study protocol her deposition testimony stated it's my job to notify the university if i or be violations occurred she stated that contacting they are the is her job as a supervisor of fox and her e mails to the u w human resources person mr berger as well as to dr palmer repeatedly confirm that the human subjects divisions director karen mo and the assistant director of compliance at the university wendy brown as well as others each confirmed that every university employee involved in independent research board approved research has an obligation to report noncompliance it was protocol officer performing assigned duties so under this court's test in dalia the speech was when that was in the chain of command the subject the nature of the issues addressed were not of  their first of all they arose and it's undisputed that they arose out of this long running dispute with her subordinate ms pfaff's it started with an allegation in this fath was doing things improperly after immediately after ms mansfield i've been counseled dr palmer for this systemic workplace grievance that's going on that's the only thing systemic about the abuse here is that it was an ongoing long running dispute and the complaint initially arose as a grievance against ms pfaff the it evolved into an allegation of improper syringe use that was rejected by they are be when they looked into it the point i think is that these are not issues of systemic corruption or abuse as in the cases where this court has given complaints first amendment protection it's not a matter of public corruption she didn't go to the press she didn't go to the state legislators she went to the state auditor only after she was told to do so but critically as the district court found dr palmer did not know this so the final factor undervalue i think is whether the complaints were made after being told not to do so in derogation of the supervisor statements no one told her not to make complaints and in fact again dr palmer did not know of them until december twenty codefendant who was the h r director that sent ms nancy and her germination letter absolutely no argument whatsoever about that let me also address in brief time i have the argument about intent and causation there is certainly evidence that dr palmer wanted ms mansfield out of her lab that is true and that predates any knowledge she had on december twenty eighth two thousand and ten she was counseled in two thousand and eight she was counseled again in october of two thousand and ten and he had received not only complaints about her being a disruptive influence and a bad supervisor but that she had threatened to bring a gun to work so yes he wanted her out of the workplace it's undisputed all of that pre dates predates any knowledge that dr palmer acquired on december twenty eighth that she had made a complaint to the human subjects division so i think that you know fact alone breaks the chain of causation but the district court didn't need to go there you don't need to go there because there is no material issue of fact about whether these statements were subject to first amendment protection as a private citizen because she was a public employee performing her job as she repeatedly stated as the court of any further questions here is not thank you very  although you've used up your time and put him a minute back on the clock for your rebuttal thank you judge to the issues of not going to record to the i r b not going to the press not going to the other nobody told her not to those are disputed issues and the issue on summary judgment is is there an inference from from the jury that ms mansfield was acting outside or assigned duties counsel says nobody ordered her not to go but dr palmer condemned her as sabotage or sub to her and said she should pay with her job for going outside the chain of command to the v a i r b and the w i r b and just like the jury can infer from mansfield admitting i think i have some protocol duties they are forced that you were acting in the scope of your employment the jury can infer that if the boss says you're absolutely forbidden to go to those agencies that was not part of or assigned job that before the jury not going to regulate the i r b's but only reporting h s t is the misreading of the record it's very important to note that mansfield's affidavits creating a material issue of fact state i went to the i r b overseers i went to go to find a higher authority she said i started with the i r b anthony floyd there's a memo in the record to anthony floyd i believe it's november two or four saying i'm potentially a whistleblower and i'm very concerned about this but i have faith in your we're going to zation i r b is not an entity of the university of washington the health and human services mandated watchdog group that is supposed to standardize the safety of human subjects in research periods and the u w has to produce one and the v a has to produce one there is a evidence that in in also a attaching information to the v a i r b that that was a u w assigned job and there are the statements of mansfield are supported in one case by the memo to anthony floyd and in the supplemental records we see that she spoke to the s i b c r saying there was a v a i r b violation and that when we go back and look at those