protection agency after he made disclosures protected disclosures about his former supervisor in the chicago area office with special agent in charge of ash mr siler disclose that he had twice observed mr ashton appearing intoxicated while on duty and he took a photograph of mr ash asleep at his desk which he distributed to other members of the chicago office i mean let me two weeks later and administrative investigation which is why we refer to in the brief as that people investigation is initiated and the document that's at issue was a draft suspension better present the timeline when these in essence were made yes and then his whistle blowing and i can explain because the draft suspension that's that's the crux of our argument  it appears to have been based on the oh i g report of investigation that was issued in january twenty fifth it mirrors the facts in the i g investigation that charges mirror the i g investigation and it logically doesn't make sense that someone would have drafted a proposed suspension based on an investigation if all along they were planning to conduct a secondary ministry of investigation siler but what about the fact that we have a change in decision makers can the new decision maker have the right to look a new at the circumstances sure but mr parker was still at the agency in june facts that are included is that that was based on the oh i g investigation not on the administrative investigation so what it looks like is the agency was prepared or at least contemplating going forward with a propose conflicts with the testimony that was given by e p a managers at the hearing that they had been talking about doing this administrate investigation for six months and there's also absolutely that's correct your honor that there that there was an undated draft proposed removal that had mr parker's name on it and there was the undated draft proposal suspension that had mr parker's name on it but are part of our issue with this is that you know we were obviously not given the document while we were given the document and then the agency claimed that it was privileged never made any showing of how it was which it all and because we were given these documents immediately before the hearing and agency counsel had represented to me during discovery that mr parker was not involved in the disciplinary process so we did not depose mr parker i didn't call him as a witness at hearing i didn't count any interoperate tori's about mr parker we were deprived of any opportunity to investigate why his name yes because mr parker is no longer with the federal government and so i would have had to subpoena him and i approached the agency counsel and said i haven't seen anything with mr parker's name on it up to this point the discovery that had produced been said well can you at least give me the transmitting e mail the e mail because this document was produced from someone's e mail account we know that because it was part of the ied discovery production that was limited to four managers e mail account so it had to have come from someone's e mail so i said can i have at least be transmitting e mail that shows who sent it who it went to and the date if you're claiming the document is privileged fine but i want t time information to your point about it being a data and establishing a timeline and the agency counsel refused to provide the transmitting e mail and that prompted the phone call to chambers with the administrative judge and also we weren't given any privilege walk which also would have had the same information about the date who sent it who received it and at least would have set out some colorable basis for the attorney client privilege we never received any of that information right let's let's move on to the car factors you focus on kirk and relief and the comparison with ashton argue that the wrong legal standard was employed right well in the sense that the judge gave very limited way to mr ashby ng a proper comparison to seem to say that they had to be identical not just similarly situated that's correct  she even though they had the same deciding official same composing official same at least one of the charges was identical conduct unbecoming and mr ashley had multiple  specifications under the charge of conduct unbecoming the judge said because the type of misconduct that they allegedly participated in was too dissimilar she she gave a very little weight under the car the actors so criminal inspection division criminal investigation division was groping female employees having sexual intercourse in his office using vulgar sexual including whitmore including miller v d o j say that first of all let's keep in mind it was the agency's burden at this point at this point of the process we're talking about the agency has a burden of showing by clear and convincing evidence that they take that same types of actions against non whistleblowers that they take against whistleblowers and the agency absolutely failed to meet that burden and i feel like that a j turned the burden around on us to say you have to show that mr was similarly situated in all these different ways as opposed to saying to the agency show me other non whistleblowers who were investigated for the same types of things that mr seiler was investigated for who were removed for the same types of things he was counsel i want to start with the claim of privilege here i have to say i've never seen a more bogus claim of privilege in my life i mean this is you don't do a privilege log you produce these documents you say their privilege you know produce that their privilege you go back and forth saying i don't really know who wrote them oh by the way it might have been somebody in h r we don't know who they sent them to how can you possibly base a claim a privilege those kinds of  facts i totally understand coming from i think one important thing to note is that throughout the drawn out and i can see if you were not a lawyer who was saying well i'm defending i represent right here today and i do want to defend the government's position which is that during this drawn up discovery process there was an extremely contentious period of negotiation regarding key terms custodians i mean there was an initial request that was extremely expensive but can you agree with me there is no showing  privilege upon which a privilege determination could have been made in this case i think there was an assertion of privilege and i think during the hearing i mean if if this came out at a time where it got parties an opportunity to brief it rather than it kind of being sprung up hearing i think it could have been better laid out but at the same matter like that i mean l j just kept saying i trust the lawyer who says they're privileged even though the lawyer said i don't know who wrote it i don't know who got it it might have been h r that wrote it i mean and then you have all these sites following that we're looking at those sites for there's absolutely nothing in the record saying that these were drafted by attorneys so the only thing i can figure is that maybe you think that when you say deny that they got a document listing all the individuals involved in drafting the proposed personal actions and there is no dispute in this case that that listing of individuals who were involved in drafting those pros actions there were attorneys on there so when the attorneys then responding to here is that possible that's where all the post personal actions and that was turned over before the hearing and that was turned over before the post personal actions again there's no evidence or even fair argument that these were written by an attorney or that they were in compassing privileged information that was discussed between an attorney and a client and again i  that response is directed to the two specific proposed drafts that were presented to the board judge it's not talking about the vast you know the corpus of proposed personal actions that the government had it's specifically referring to those two where the and those are the true she'd like to have access to right and again i think even if you disagree with this on the privilege issue and you say the board judge abused her discretion in this regard it's hard to understand how that would want congress to have since reported what evidence you have not attorney or what evidence is but you never ever produced anything to support that and in fact on the record repeatedly said things completely inconsistent with that and then you do the same thing in your breaks so there's this pattern of we're just going to say it's a privilege and we don't you misunderstood is your problem here too late it's over but they expressed in the opinion i'm not relying on timing i'm relying on these two documents being shielded by the attorney client they were prepared and who they were transmitted between so and and now you're saying that it's all their fault you know just i'm a i'm not characterizing this as a dump either because i think the board judge said look she addressed this at the problems in  on the agency to prove that they didn't have to produce these materials and and the agency never satisfied that burn again i mean the documents were raised   i'll grant a continuance and that could have happened here is what i think that the issue could have been much better fleshed out provided that the petitioner moved or filed something saying hey look we just got these documents we want to chance to review them we have a privileged dispute and i think the board should have addressed it at that point with given that it was raised at the hearing and it was kind of sprung up even on the first day of the hearing the way the documents presented there were no physical copies presented to any of the witnesses or the board judge and it was only at require in consideration of not so i don't think we're saying that's appropriate i think we're saying it's unclear whether you can do that and in fact i think if you do it's unclear whether she can say i mean the phrasing of the element would suggest that you shouldn't include other  whistleblowers in analysis and i think we do mention that in our brief that she did what she did she did and what she did was she took the motive to retaliate because certainly be relevant to the question of whether there was a motive to retaliate and then said look i'm considering that same events for carfax or three and perhaps most tellingly there is no evidence in the record that the agency retaliated against the first person to report and this is in the context of concern car factor three she's talking about the treatment  a place that you can cite me to in the record where he said just slightly ways and favored emergency no i think if you read the decision a factory one was and she doesn't say that you just you just said a few minutes ago that she said that right and then i think if you view the car factors th since she doesn't say that right i don't think she uses those precise words but i think the way she decided the first car factor is chief decisively favors agency on that the second car factor she says that's also unfair with agency based on credibility determination car factor i think she comes to the conclusion that look i'm evaluating all this evidence and i find this in favor of the agency as well and i don't think she had to do that because at the end of the day even if you ratchet that back you still have the fact that the strength of the agency's evidence and the c factor was very strong and the second car factor is well i mean that's based on credibility determinations and the weighing of the evidence and that's not reviewable in this work because those are pretty ability terminations that the board judge made in support of the agency's personal action gun of the a k forty seven opposed to the barrel or the stock that's what it is and lever pieces yes and in fact i believe the pieces were separated amongst a bunch of different box so one point i want to make that we've been focusing on mr ashes miss conduct as it's relevant to karr factor three we would also submit that his his misconduct and specifically the agency's handling of his misconduct over looking at allowing it to continue for years and years is also relevant to car factor two which is the agency's motive to retaliate against m judge credited mr barnett's testimony that he would applaud a whistleblower like mr siler for coming forward with evidence of misconduct however that is not certainly what mr barnett did when multiple women came forward and testified and v o r g or the administrative investigation confirmed that they had been mistreated by mr ash mr barnett did not applaud those women  he instead mitigated mr ashes proposed thirty day suspension to fourteen days and allowed mr ash to remain on as those women supervisor into perpetuity the same women overlap between those two aspects and it works because one well i know that with the car element for example i mean that the similarly situated language appears in both standards i believe but with respect to the car aspect this court has said that you can that the agency in fact has the burden of looking through out the entire agency to show that it treated other people who were not on whistleblowers the same way that it treated mr siler it's not limited to the same chain of command it is that miller v d o j case this court has said the agency has to show that it does this to other people and it absolutely didn't do that the agency had the burden on the car factor mr siler has the burden on the douglas factor  well i that was actually the whittemore decision that said that if if an agency cannot produce after the end of harsh after three that