right we will hear argument in the last case on the calendar which is the chippewa tribe of the rocky boy reservation versus the department of the interior and in the st marks we will hear argument in this order  are you counsel for the tribe yes and then you're going in the right place we will hear after you will hear hear from counsel from mr st mark's and then we'll hear from counsel for the government ok thank you your honor you know may please the court my name is creature to pay about six hundred fifty thousand dollars without affording the tribe due process the secretary did not comply with the american reinvestment and recovery act section fifteen fifty three which deals with how it's supposed to deal with whistleblower complaints there are certain statutory requirements there that the secretary did not comply you think were complied with so what the way it's supposed to work the sequence is investigation a complaint is made an investigation is opened and that can take up to a year can take a one hundred eighty days plus an extra hundred eighty days at the end of that the parties are supposed to be supplied with the report and then the employer which is the tribe gets an opportunity for rebuttal and can you way you need to be told what the allegations against you are and have a chance to rebut them but that that could be before the report i don't quite understand this argument about after the reporter exactly the sequence you just laid out well the plain meaning of the word there's two answers to that  plain meaning of rebuttal is you know this is your position and we think you're wrong but couldn't you just be rebutting the allegations people are making to investigator rather than in rebutting the investigator we don't know what those allegations are until we get the investigative report what happened here is well i don't think that's true i think the tribe knew that there was a invest whether he was retaliated against but there was in july of two thousand and thirteen you're correct the tribe received a one page letter saying an investigation has been opened into an alleged retaliation that's all the tribe received in july if that's the core allegation right so if you know the core allegation is that right and if you look at the business communications case which is the the case the circuit court case in the eighth circuit that considered this precise issue what it held was that a employer is entitle to be confronted with the evidence and that's a direct quote from the opinion and gets an opportunity to cross examine adverse witnesses and again the plain meaning of the word rebutt is we get to rebut we get an opportunity to rebut the evidence well ok so even if that's right even if what you needed was the report and then opportunity to submit evidence didn't you submit evidence after you got the report so when we got the report that was simultaneous with the december two thousand and fourteen letter and in that letter the department had already concluded that a reprisal had occurred or prohibited routes that may be tentatively at that point or you can characterize it however you want but you would then did submit evidence and it appears that the department then did consider that evidence and talked about it so where is the problem of not having submitted evidence so here's the here's the problem in it's in it's twofold first the decision had already been made and if you read that letter what the letter says is we will only take submissions on what relief is to be granted at that point the decisions been made perhaps but it sounds from the report like they consider the evidence and thought about it again and analyze that evidence so yes they said there are things but it seems like they did something different than that what if you read the letter i think it's at page five of the letter the letter says we will give you evidence no dispositive weight is what they will because they didn't believe any of it but they considered it i don't think you can read the letter that way judge and judge first of all that sequence is inconsistent with the statute last clause one is what you're complaining about it seems to me yes which is that you're supposed to get the report of the investigation simultaneously with a provision to the complainant and that's that point before the agency makes a decision you can jump in and respond to the evidence that's in the report yes correct and at that point in the reason why that makes sense and the only reason why that reading is correct is because up until that point we don't know what the evidence is what the conclusion is going to be how the the investigation's been conducted we don't know that we don't know who he's who the agents talk to what documents he's reviewed what information has been supplied by mr st marks we don't know any of that so i mean all we can do i'm charging that all we can do at that point as of july two thousand and thirteen is to tell the secretary these are the real reasons why he was removed from his position which we did in august we responded approximately i think it's about a month after receiving that and then more than a year later in december two thousand and fourteen is when the report comes out and the report says we've made our decision of the report came out way earlier than that you just didn't get it that's that's the investigative report correct yeah the report this oh i g r o i that's what i have in my  ok but let me ask you this it's a slightly different question you point to that circuit case i think it is yes the business communications communications which did hold at least in the circumstances there say that you actually had to have more or less a formal administrative hearing in order for the process to comply with due process and i guess that doesn't strike me as right at all for this reason your client in agreeing to take this money didn't  basically sign on to this set up whatever the set of procedures are that are spelled out in the statute didn't it basically just say yeah we're going to be willing to resolve disputes of this sort in line with this set of procedures not the set of procedures that the due process  might otherwise have it titled us to and if so why is that why isn't that right judge i don't think anybody has taken that position on the on the other side here and nor is that right we are in we're entitled to due process  and you're entitled let's say to a jury trial to resolve a civil dispute over a certain amount and you can voluntarily waive that and say no we'll just do it in this very constrained arbitration proceeding where there's no discovery made like that's your choice you  can do that seems to me the choice is put to you do you want this money there are good reasons why the government has this very streamlined investigation and dispute resolution proceeding right that are unique to this program and  disputes that are got covered by it are only disputes arising out of your client's use of this particular money so it's not like you're having to sign away your rights to due process and all other sorts of context so why is it not ok for the government to say as a condition of your accepting this money if certain disputes of this nature arise these are the procedures that you and i are going to agree to resolve them and you say great i'll sign right here give me that money so we never the tribe did not agree to waive its right to due process what the tribe agreed to do  was that certain whistleblowers would be certain employees and employees only would be afforded protections what business communication says which i think is right is that the due process clause still applies now i know that's what i'm say don't think i agree with that case and i'm just going to want to respond to this your i can't remember what that contract said exactly but it basically incorporated these statutory procedures into that contract and i'm asking you why is that any different from two parties agreeing to resolve a dispute by way of arbitration that strips away all sorts of procedural protections that you'd have if you want the judicial system why is that any different from so for two reasons judge first of all as i said when i started the argument here they didn't comply even with the provisions of the era yes i'm with you on that i'm saying talk about this hearing thing because the statute says nothing about your getting an opportunity for a full blown evidentiary hearing where you get to cross examine witnesses so if that's what you're asking for what i'm saying is that yes the eighth circuit decision seems to support that but i don't think that's right i'm trying to get you to respond to put aside the thing about you're not getting the report of investigation when you should have if they violated the terms of statute maybe you get relief on that but you want something beyond what the statute grants you and i'm saying why haven't you basically waive that right when you took the money and here's what we did not and this is what and i think business communications is persuasive in that we did not waive our right to due process and in this raises it there's no explicit waiver of that in the contract the contract says the act will apply and the can guess i was not and i thought you were going to say that that would somehow be unconstitutional conditions doctors and i have that's where you're going to go but you're not going there you're just saying that by signing the contract in the green us up the money you held on to all sorts of other rights that aren't spelled out in the statute books your position i guess so we did not waive all our rights as to due process as to what we're entitled to one of the constitution nor is is the is the government or mr st mark's contending that they're not saying that we would waive all our rights to due process here that's not that's not their argument you know the government or mr st mark's is your argument that whenever there's a dispute a fact  in a matter before an administrative agency the agency has to allow live witness testimony in order to resolve that dispute no judge that's what makes this case among those that require a live hearing so the reason why is because this is a unique procedure here that's been adopted under the a are a is there are there's conflicting testimony between the testimony obtained by the agent and what the business community committee members and other witnesses would have testified about had a hearing been held and that's what that's where business communications comes in is that there are factual disputes that the secretary resolved  without appropriately hearing from so so then the answer to my question is yes whenever there's factual disputes he said he said or he said she said it or she said she said there has to be alive hearing with witnesses no judge there could be circumstances where that could be resolved without live witnesses this is a situation where the tribe were what's at stake here is first of all you know potentially tens or hundreds of thousands of dollars of the tribes money of government money as well as the tribes sovereignty the tribes sovereignty you know the tribe is a slightly different entity than any other employer in the situation is different here with respect to mr st marks because st marks is not an employee of the tribe he is the chairman of the tribe but these are your other arguments on the merits i mean getting back to the question of what dispute i mean maybe your argument is if there is a tribe involved in the agency they get a fact of hearing i mean is that we are we we would agree that the due process is flexible and that it's moldable depending on the situation here but when you have a situation where the where public money is at stake in the hundreds of thousands of dollars that would require that requires a level of due process that it wouldn't if you know there were if it was a parking ticket or if there were five thousand dollars at stake and that's what that's what this case to say is that due process must be applied the way to address the the property interest of the protected interests that are at issue so i'm wondering about a different form of a waiver question so your committee members were invited to be interviewed by the investigator and you didn't let them get interviewed or they declined to be interviewed on sovereign and tribal immunity grounds why didn't that waive the fact that i mean they had an opportunity to tell their side of the story while the investigation was going on maybe then there would have been a fact dispute maybe that maybe the agency would have had a hearing if they were in fact but you guys didn't offer the testimony from your side during the time when that was happening that's not accurate and i noticed i'm running short on time and if i could answer that question and then just retain some time for a bottle that's not accurate the record if you read the record  before the report was the ok there were other there was another time where where the tribe was accusing mr marks and there were a possibility of interviews that and the interviews didn't happen but earlier at the beginning of the investigation or earlier in the best occasion the committee members were invited to be interviewed and a letter was written that said we have tribal immunity we're not coming to the with the letter says is here are the documents supporting the real reasons for his his removal  contact us if you need additional information and he was the the the members of the business committee were not contact until much later and what happened there was interviews were going to be scheduled and the agent the the agent didn't follow up and never interviewed the never interviewed the business committee members but again what business communication says and what's fundamental here is not that they get to be interviewed by an agent and he gets asked whatever questions he wants and it's a limit to what the what my clients can say i want to i know there were two i'd like to get this straight because it could matter so in december two thousand and fourteen i thought there were discussions about interviews that didn't happen and you blame that on the government but that's correct but let's talk about what happened in july two thousand and thirteen where where is the thing where you said you would come to the request  interviews that were requested at that point when the tribe submitted its documentation in august of two thousand and thirteen if you read that letter and it's in the record it says please contact contact us if you have if you'd like further information other is a statement in there about we don't believe that the invest that the investigation is appropriate because of our sovereign immunity but there is the question you did the letter says please contact us if you like the agent contacted business committee members was referred to me and we were in the process of scheduling those interviews and providing additional documents to the agents and the agent never conducted the interviews and you think there was never discussion of interviews before that  i believe what the what the letter says that was issued in august of two thousand and thirteen was that here are documents let us know if you need any additional information and i've noticed my time is up particular case i want to before i get to the main issues i want to talk about i did want to briefly touch on the due process issue that's not my primary issue believe that will be the united states primary issue with them about half the time i agree with them about half the time kind of in the are no i don't agree with them and i me thinks are the united states agrees with them about half the time but due process is the process is that is do i mean that's where the phrase comes from and the statute defines the process here that was due and they were frighted that that process and that's exactly what the court's questions were getting at is that they did they agreed to this this was the process that was due to them and they  obtained it the other thing regarding due process that i think is concerning is they haven't come up with anything that they would have submitted other than the attorneys claiming to represent the tribe here today say the tribes it was unreasonable for the agency to have found that the business committee members knew about ken st mark's open letter to the tribal community everybody knew about ken st mark's open letter to the tribal community it was an open letter to the tribal community there saying well we should have had an opportunity to have the business committee members testify that they did know about that it's like no you don't need a hearing for that it was just incredible that anyone would even assert that they didn't know about the open letter to the community so they haven't really shown anything that they would add to it numerous tribal officers were interviewed the only ones who weren't interviewed were the ones represented by these attorneys here who didn't want their clients talking to the united states in a situation that was going to get them in trouble they didn't talk record and now i'm confused i thought that that was true but now i actually i'm not sure if they're somewhere in the record where they say in the two thousand and thirteen summer that they won't be interviewed the investigator in his report talks about to trying to get an interview with tribal business committee members and what happens is as they said they sent the attorneys claiming to represent the tribe sent several letters several long letters where they go into their version of fact s not dependent upon what the business committee members know by personal information based on secondary information based upon their their trumped up charges that they they were bringing and those are in the record at seven twenty five and seven forty five those are the letters from august of two thousand and thirteen that mr zak was referred to so in those letters they say if you have one thing more contact us that's what they're saying and the investigator saying no i couldn't get a interview with them so that is concerning that is the they didn't have anything else that they could offer what they're asking for is a hearing but they still never explain to you why they need it here and that's the concern here they have even if they have a right in some situations to a hearing or they still have to come up and show some reason for it that they can they can waive their right to a trial or we can have situations where we say oh there's no real dispute here we can decide this without here we do that all the time in courts and we do that all the time administrative proceedings and they haven't shown anything that they needed the hearing on so that that's my discussion of the due process issue like i say the united states would that's primarily their issue the first issue i really want to talk about is no one is standing up to these attorneys they do not represent the tr do you have standing to worry about that you're not opposed to them for that purpose or are you are you appealing the lack of a better award from the government we we have there is not the case before you now why do you care whether they have the right lawyer because what they're trying to do is appeal the determination that mr st marks was a whistleblower that's what they're trying to appeal that was a decision in my client's favor so yes we have the right to say to this court you don't have jurisdiction because no one who represents the tribe is here every time we bring this up in every other proceeding with the priests here they say we say where is your resolution they say we represent to try the case so even if let's say you can make this argument is it a tribal law argument how do we have jurisdiction to resolve this question in this court maybe you could do them in tribal court and say violated law and having the lawyers but what is the issue that we can resolve about this the issue that you can resolve is you are a court they are coming into this court they are filing a notice of appeal that they do not have the authority to pile on behalf of the tri arguably if the tribe didn't think that pepper hamilton was representing it the tribe would be waving its arms and say hey pepper hamilton is representing us do something about that and that hasn't happened right and that that's the problem here what we have got is the people who are involved in the whistle blowing retaliation claiming to represent the tribe we have for instance in the record it was the other people from the tribe saying hey wait a minute that's what i am i am mr st mark's attorney he was the chairman of the tribe that is what we are saying so i am that person but why don't you go isn't this about why didn't it's about the tribal constitution i'm sorry remind me if it's the tribal constitution where this idea is written that you need would have to be in turf the final determination would come from the tribal court yes but where there is a clear violation such as this if there was a tribal court decision from their highest court you'd say yeah we're bound by it as that court said pepper hamilton authorized to represent the tribe even though they've never gotten a resolution they can't show federal approval even though it's constitutionally required it's a tribal court would interpret its constitution that way you'd say that makes no sense it's there in black and white in the constitution but we have to accept it but we don't have that here so it's up to you they filed a notice of appeal what they're doing is they continue to claim they represent the tribe they represent the tribe the tribes interest and they do not and they continue to do this and then they retaliate against people who challenge them and that's their the bullies in this room and you need to say to them you don't get to do this it says in the times constitution you need federal troops where's your federal troops you don't have it  think you've got a tribal court to seek an injunction to keep them from coming here today i just don't understand how we can force the tribal constitution when there's a tribal court to do that you can enforce to the requirement that there was a federal law requirement  there's a requirement that they have federal approval when they come into this court as anyone else any other turn comes into this court they need to show that they're authorized to represent and they're not they're simply not authorized to represent the tribe you can see defiance of the tribes constitution they will not submitted contracts to the the united states for approval they do not have the approval they shouldn't be here today they should not be allowed to appeal here today and that that is a jurisdictional issue if you don't have a notice of appeal from the tribe you can't hear the tribes issues and you do not have a valid notice of appeal from the tribe i want to now turn turn briefly and hopefully save a few minutes for rebuttal to the other issues that we have with the united states which are the damage issues can you can you just address briefly the issue of whether mr st mark's was an employee he was a he got a regular paycheck he worked regular hours has the president get a regular paycheck of the united states i don't know how i know he has a yearly salary i don't know how he gets paid right  used in the whistleblower statute which is designed to protect the people who are doing the whistleblowing yes i think that if you were an employee well there's federal whistleblower protections for federal officers so yeah that he would he would it's a broad definition in order to catch everybody who is doing regular work and he's getting there in the position where they can provide the information to the united states is jerry brown an employee of the state of california is i under the federal federal whistleblower protection under that definition and we're talking about a specific definition within this act yeah he would be an employee he is somebody who mark's salary should be what he had voluntarily agreed to take and said of the amount that he was authorized by the tribes who supervises governor brown's work for the state of california  supervises well east subject to checks and balances within the state of california by the by the courts and by the legislature to whom does governor brown reports in the state of california to the people right is governor brown able to influence the workings of state government in california  yes doesn't that mean under the the five part testing clackamas that he's not an employee of the state of california no i'm not sure i'm understanding the court's question  ok the additional in addition to the amounts that were awarded to mr st marks he had asked for an additional attorney fees that were part of the retaliation there are two ways you can get attorney fees in a case the one is that you can get your attorney fees as costs so your attorney fees for doing the whistleblower and the other one is as damages attorney fees are often damages in a case because one of the common things is that people retaliate by using litigation to get at the person who's doing the whistleblowing which was exactly what was going on here they were making up charges of the retaliation those cases where the retaliation themselves and the the attorney fees in those were the retaliation and so that they should have been awarded and finally the issues regarding interest the united states did not make a decision regarding free judgment interest and then we have tried to get some protection while this case was pending and have not been able to get it to ace the agency frighted a stay to the other side and said well we'll deal with how will protect mr st marks in the interim by bond or otherwise and never did that i understand your the bond argument and it seems like if you had gotten bond and there was interest accruing  equivalent to this post judgement interest but i don't think you appealed the denial of bond bond with seems like you can separately appeal that when that decision was made so now we have this post judgement trysts equivalent do you have anything in the statute or otherwise that says post judgment interest is available no the error there is the agency never decided the motion on bond it never decided it's still pending we filed it right away as soon as they filed their their case we asked for something to protect them during it and they said we're going to grant the stay we'll decide bond later we actually sent a follow up letter about six months later we discussed that in our od morning your honour's cheney early for the department of the interior who are the agency correctly determined that that the tribe removed mr st mark's as in retaliation for his whistle blowing activities that those activities were a contributing factor of his removal and ordered appropriate remedy s and answer it your honor to your question about hypothetical applications of the statute to other types of officials and other governments those are really of no moment because what the the agency determined here was that under the under the statutory definition of araa that mr st marks perform services on behalf of the tribe and received a salary but even under the clackamas factors that the supreme court looked to in a different statute in a different context the court had has said that the real dispositive consideration is control and here there is evidence in the record that the tribe or the business committee could supervise mr st mark's performance of his duties as chairman that it could remove mr st marks and did so exercise that authority several times in fact and so is appropriate for the agency determined that he was an employee and that the whistleblower protections extended to st mark's so is jerry brown an employee of the state of california under r s definition of employee well you about governor brown but it stands to reason that the type of control exerted by the business committee over st marks is different from any control asserted over a state executive with presumably plenary executive authority here ms let's talk about removal could governor brown be room moved by the california legislature under some sort of an impeachment process i assume it was so how is that different california state constitutional knowledge whatever lack you have i have it in spades because i'm from illinois where we're starting from the same name not so so a parent really st marks was removed by some sort of it seems like an impeachment process how is that different from what would happen to a governor of any state that may or may not be similar but the the supreme court is instructed again under similar language to look at the totality of the factors and it would necessarily be the ability to remove an employee that stands to reason that it would be about the exercise of control over how he conducted his his duties the according to the tribal constitution the record that mr st marks exercise authority delegated by the business committee he was supervised carefully by the business committee in this case and he could only vote in cases of a tie so he doesn't exercise the type of control that we might posit an executive  state would according to the hypothetical and so for that reason it was appropriate for the agency determined that the whistleblower protections extended to mr st mark's in these circumstances what was i that i can and knowledge eyes because those those are matters of of tribal law but what we know is that he could only exercise or that he could exercise delegated authority from the business committee and that they supervised you know to the of these these charges were about the you know the amount of authority he could or did exercise when they levied those charges against him in support of their removal of him so your honor and i just don't know that there is a perfect analogy to use it at the same for a state a governor can at least in some states i imagine exercise only the thorny that's been approved by the state legislature it may be your the the iggs executive of state may exercise independent authority from from the legislature and so as the supreme court is instructed it'll be a case by case analysis of how this particular statute applies congress when it adopted the the wide ranging stimulus funds and pushed those out to the economy to stimulate the economy adopted some protections for whistleblowers and  ways of monitoring the use of those funds and in araa it adopted a broad whistleblower provision in order to protect those funds adopting a broad definition of employee and i ask you about your understanding of the procedural order that this investigation and of course with the take i'm not sure where this rebuttal language sort of fits in or whether the statute has an order so i'd like you to give me your understanding of the statute yeah what do you think are requires procedurally arbor acquires in the first instance when there is a complaint delivered to the appropriate inspector general that the inspector general the appropriate agency for the agency the photo id to conduct an investigation in the first instance and determine whether the complaint is frivolous it then requires the agency to conduct an investigation and at the conclusion of the investigation transmit the report to the agency employer to provide by clear and convincing evidence that it would have taken this action in the absence of the potato you know it sounds like you do agree that that the order is that the investigators report has to come out and then the rebuttal opportunity exists i completion of such investigation which is shall submit a report of the findings of the investigation to the person the persons employer which here would be the tribe the head of the appropriate agency which here would be what the department of interior exactly  and the board so i guess that's it seemed to me that was a potentially fatal procedural defect in the proceeding in the process that was followed here because the tried to knock it the report of investigation until the secretary had already designit in this case your honor at would resist the notion that the agency had made up its mind at the time that it provided reasoning and analysis for the determination that find the have we've termed it a determination it expresses a view as to the outcome of the procedure yes you're on x the same day that the tribe got the report of investigation that there wasn't any prior opportunity for them to respond to what was in the report well to the contrary your honor the the while the tribe may not have received the report of investigation the tribe per participated in that investigation on several gave them the right to receive the report at the same time as the agency got it and they we're not communicating i'm saying that as i understand it the report of investigation actually was finished back in may right and yes it was given to the department of the interior then yes your honor ok the statute says that they were supposed to get the report at that same time so then six as they did your honor but that the got to report in may well that they say they got it in december december they got it so the statute was not complied with because they did not get the report of investigation at the same time as the agency did by the time they got the report the agency had already made up its mind as to the appropriate outcome and so then they were in a position of having to basically get the agency to reconsider well seems to me that's different from the process of th i don't think that that is precluded by the by the statute for the agency to issue some sort of initial determination for how it's viewing the evidence your honor in it they didn't see shouldn't be felt december of two thousand and fourteen the agency says here's how we've decided this now let's talk about remedy i mean it's a different context but in a sense in proceeding in federal court a criminal case pre sentence report is prepared by the probation office and let's say that's given to the judge not to the federal judge comes out of the bench and says sir ma'am defend you know whoever the defendant is i've reviewed the present report and here's the sentence i've prepared prepared to pronounce now now here's the present report i'll hear from you at that point you're in the position of having to talk someone out of a decision they've already made i don't think that's the in the context of that that use it contemplates a streamlined procedure i don't think the agency can be faulted for giving more notice to the employer here of how it's viewing the the investigation in the same way  that the notice given of a tentative ruling and then allowing the parties to to discuss that that ruling deprives the parties of some sort of constitutional notice or opportunity be heard i'm saying it's a statutory right that they had to review the evidence that the report of investigation was relying on yes your honor which they did the agency was no they did not before the agency made up its mind even even on a tentative basis your honor and that's what the statute i'm just saying that's what the statute contemplates in terms of the order and that did not happen here by your own admission your honor i think we're in agreement on what happened here but the import of that is i think where we are we're disagreeing  to tell me how that language allows the agency to get the report six or seven hold it for six or seven months and then give it to the well person's employer how does that when you're under i think the question of the six or seven months maybe as a result of the privacy act protections associated with the report of investigation i gather what you are most concerned about is the initial determination of reprisal being delivered simultaneously with the report of investigation and honor i don't think that that is precluded by the statute at that time like i have actually not focused on this phrase but it does sound like that is upon the completion of such investigation this inspector general shall submit a report of the findings of the investigation to the person the person employer the head of the appropriate agency and the board so it does sound like upon the completion of the investigation the inspector general is supposed to give the report all those people but you're you're missing that didn't happen all at the same time right admitting that the report of investigation was given in a timely fashion to the employer and the and the whistleblower in this case your honor but there's nothing here that's an appropriate agency in the board include your client i mean the agency that made in this language that precludes the agency from doing what it did here your honor and in any event it was not it did not deprive the tribe of due process to try participated in the agency's investigation submitted  determination the tribe was was heard out and has not pointed to anything that suggests that it was deprived of constitutional due process that point to your honor that there is no sense in which the the tribe has has suggested that any sort of statutory violation if there were one has has harmed it in any way i see my dog you're really making i harmless i mean so this seems like you're supposed to submit it to your which is the head of the appropriate agency in the statute and the employer and the person all upon the completion of the inspector general's investigation that didn't happen but you're arguing that it's harmless because the agency considered the rebuttal evidence late i'm not sure that that reading of the statute is necessarily required your honor i don't think the tribe has necessarily raised any sort of statutory violation in the questions presented your honor and i think those are those are my two answers but it certainly hasn't explained specially in light of its forty page submission voluminous exhibits before the agency after it received notice of the investigation and the agencies not on that investigation that it was deprived to due process thank you i think you were on your first of the record at e r fourteen the first page of the report of investigation the final paragraph said when we requested interviews from the business committee regarding these events its legal represented the provided us with the committee's list of what they considered more specific charges against st mark's that is not an express refusal to cooperate but but certainly they never did and then later the agency mentioned in its final order on page one i wait for was telephonic communication between the tribe and the i g but but i would refer you are some other the reference you pointed us to is that it says its legal representative the tribes legal representative provide us with the committee's list of what they considered more august eleventh on august twenty third they submit a supplemental level letter there's discussion in the record of an august twenty six intervening phone conversation with the i g their affidavit submitted on november third tw so there's an ongoing discussion between the tribe and i g but i point you to page we are one zero nine four this was attached to the final order of the agency in which the noted is sort of a separate matter but here it says when the agent assigned to the whistleblower case attempted to interview tribal officials about the allegations they all refused to be interviewed if that is change please give me the names of the tribal officials who agreed to an they refused to interview think there was any kind of waiver of an opportunity to submit evidence earlier because of that or are you not relying on that kind of argument a waiver of an opportunity to be interviewed your honor our or just i mean so were trying to figure out like it did they have an opportunity to present their side of the story was their due process and letting them tell their side is right larry it's kind of at various stages so are you relying on the interview stage as one of their opportunities and does it have any effect on the other questions about their opportunities or not so the hope that i am answering your your question we have made arguments and believe that the tribe was heard out throughout that both stages of the investigation both before the in the course of the interviews and i noted the multiple submissions and evidence of correspondence with the o a g and then in it submissions before the agency and in that latter stage like say they had been interviewed and they had told totally different stories than the investigator with hearing from other people was there a possibility of a hearing if that had been the case that it would anything different have happened if they had been interviewed at the the tribe hasn't suggested anything in here unlike in d c i that the tribe had submitted you know there was a written record of its reasons for removing mr st marks and the at the agency investigated those reasons the tribe submitted evidence to in an attempt to to authenticate those the agency and by the agency here i mean i g and its report noted the lack of evidence authenticating many of those are the contradictory evidence on many of those bases so we don't see any need for a hearing and certainly the trial has pointed to anything that would suggest a hearing  credibility based who's right about whether he sexually harassed the women who accused him i know you have reason to think those women are trustworthy but isn't that a credibility determination well they're your honor the and i don't think that those were the certainly no suggestion has been made that the the business committee members would provide any insight into into those allegations but they are the the investigated those and determined that those were not credible not only were the the substance of the there were questions about the substance of the allegations but certainly the tribes on handling of those allegations created the inference of pretext that there was minutes you can put three minutes on the clock thank you judge just for them just to answer your question and to put this to rest about whether they refused interviews the document that counsel for the department of interior points to is a letter from the united states attorney who is not involved in this case at all saying his understanding is that there was a refusal if you so he has nothing to do with the case he's not participating in the case the letter has nothing to do with the whistleblower investigation and if you read our letter to the department of interior to the i g it's here's some documents we're waiting for you to call us call us if you have more information sort of point to that is the only record evidence that there was a refusal is is just it's incorrect the u s attorney as is not involved in the investigation ought to address the employee i'm sorry let me go to the the december twenty fourth or the december two thousand and fourteen letter the december fourteenth two thousand and fourteen letter is a decision and what it says is it's not a tentative notice of what's occurred here and what the agency's views are that there's no reasonable reading of that letter that supports that characterization the heading on page five is findings of fact and the the letter goes through fifteen sixteen findings of fact section three is c c t in gage's in a prohibited reprisal the department has already made its decision and then if you go to page eleven which is it your thirteen the letter says the only thing we're going to take from you at this point and read it accordingly no later than january twelfth fifteen days of that so that's what the mission was made at that point and the only information that was requested was tell us about that mr st mark's position on relief and the tribes position on relief it is a complete misreading of the record to say that that was some sort of tentative notice but didn't the tribe in response to that the summer twenty fourteenth letter go on and submit materials pertaining to liability we did because at that point that's the first time we've seen the report that's the first time we've seen it and the decision about the reprisals had already been made and as judge wofford said now we have to try to talk them out of it after they've made findings of fact not well but i believe in regular briefed to contest so they did evaluate the evidence at that point you may say they're still had their mind made up or whatever but they did say stuff about it and i don't really read your brief to argue that what they said about it is wrong so i'm not quite sure like what else you would have submitted or what would have happened differently we do say it's wrong it is a hearing we submit is there you should have had a hearing but you i mean i'm so you are exactly right in that there are credibility determinations that have to be made about sexual the sexual harassment allegations that's just one of several allegations that are entirely based on credibility and the reasons why those were dismissed was because the the the complainant in that case against mr st mark's had a conviction or was or would at had some convict and later at some point she'd been charged with a crime and they dismissed that on that ground alone with the climb was the thing he blew the whistle about as i understand it was not it was not that was it that's a different business committee member a chance hul is who he blew the the the i that one of the sexual harassment catch even if  it's still a matter of credibility that person can still be credible if she you know that's what has to be hashed out a hearing and if i could just spend just a couple of that the employee issue if you look at the clackamas factors are very clear mr st marks he cannot be hired fired by the business committee or the tribe he can be removed after a due process hearing and he has access to the tribal courts in order to to address any shortcomings in that proceeding so there is no hiring and firing of mr st mark's he's not an employee so how he was selected through an election direct by the entire tribal membership of the vote in the voting eligible voting members of the tribe correct so he was elected he was constitutionally removed he cannot be fired no one can go up to me and say you're fired there has to be a vote of the business committee following the procedures set forth in the tribal constitution doesn't that way against finding that he's an employee subject to the protections of ira that's what i'm saying he is he is not subject to the has they this report calls them circular those types of definitions and says when you have that you have to apply the clackamas test and it's a and this is an antiquated term but it's not my term it's dream courts term if it's a master servant three minutes as well thank you but i just want to briefly touch on the analogy to the governor of california the tribes constitution mr st marks is a member of the business committee and as a member of the business committee he is the chairman of the business committee because he runs for that particular office some tribes do their choose their business committee chairman in a different way but he is a member of the business committee the the business committee then has various duties that its members perform the individual performing services on behalf of an employer and he was certainly doing that that was his regular job with the business committee the governing body of the tribe yes it was there it was or any other governing body of the tribe other than the business committee there is the people the voters that they so when the business committee would remove mr st marks of voters voted him back and they removed him again the voters voted him back in they removed him again the voters voted him back in so the voters were putting him back into office they were ultimately the ones that made it so that he was able to remain in office so in that as far as being an employee  he was certainly performing services on behalf of the employer that was what he did in a number of different ways the other issue i wanted to get to was the credibility questions certainly a sexual harassment claim is a credibility issue but again i haven't read anything that the tribe has submitted where they have said here's some evidence that we weren't able to provide to you that we would like to provide to you regarding this this person who made these allegations she made them she was was prosecuted and was sent to prison because of mr st mark's actions he did whistle blower on her and a couple days after she found out that she made up these allegations that's that's what the the inspector general said her story was changing the timing all those sorts of things yes it's still a credibility issue but this is not something where we're on a summary judgment standard and then when they submitted their long discussion afterwards they didn't submit anything new on that particular issue they said and said that it was incredible that they said you know we should have been able to provide evidence which the business committee members would have direct evidence of regarding such things as whether they knew about the public letter to mr st marks and sent to the community