morning we'll hear argument first this morning the number two thousand and nine thirty one twenty chambers versus interior and i think we will hear first from morning your honour's my name is politician or stein and i am representing to research aimlessly appellant teresa chambers as chief of police disclosed that severe budget limitations were causing critical shortfalls in her ability to protect the parks the parkways and the national monuments that were under her jurisdiction three days later she was called in she was relieved of her police duties her badge her gun were taken and she was escorted out of the building by special agents the board's decision finding this remove all approved would seriously undermine the purposes of the whistleblower protection act to encourage safety disclosures by law enforcement officials and particularly officials like chief chambers who was in a high position and had the experience the knowledge to know to be able to make very credible disclosures that were of great importance to the public so if if george two is not sustaining everybody agrees that we have to set aside the pen we remove either charge two or charge three both those charges involved statements to the washington post charge two was the one where chairman mcphee found some of the disclosures protected will suppose we were to agree that he was correct about that that that was a basis for the board's decision if some of the disclosures in charge too were protected in some we're not where we see it well first of all i mean we would argue that they were all protected because we mean that he was correct and that only some of them acted because the deciding official said that unless all of these three charges are upheld i would have not imposed the penalty removal we don't think that the penalty of removal can stand if any of the disclosures underlying those charges are protected that at least needs to go back and be reconsidered if charged to falls out that there's a problem of her you know for the agency but does charge to fall out if some of the disclosures are held as not protected well chairman mcfee held that the remaining charge tend to do with the staffing levels on the national mall remain the disclosure i should say  the penalty could stand given the deciding official statement that all of those charges had to be upheld whether he would have upheld it if two out of the three statements were found protected seems questionable and should at least require  two in that one of them was not so if that's the situation do we him have to set aside george too there are a whole line of cases including let chance that suggest that if part of  charge is a stain in part it's not in the items are not set forth in separate specifications that the whole charge has to fall and is that does that rule apply here or is there or is there  reason why that general approach to setting aside a charge were part of the charges and sustain should not apply well i believe it should apply i mean there were not separate specifications and these these disclosures they were all statements to the washington post chairman mcphee sort of pick them apart and said well this little part about them all isn't protected but this part about the parkway is protected but it was one charge and i believe that the whole charge should fall and the other question that is raised is that once you find any protective disclosures that all the agency has this burden to prove by clear and convincing evidence that it would have taken the same action anyway so even if part of that charge remained  the burden would still be on the agency to come forward with clear and convincing evidence and in this case that that cannot be done there was no actual court opinion on clear and convincing evidence part of it because vice chair roast in rule on it all ben chairman fees concurring opinion if you're even going to consider that an opinion of the board on a clear and convincing evidence is that it's berger he basically i guess relied on where he said i had the two thousand and four ministry of judges decisions no he did yes and the administrative judge's decision court has directed and the board itself has directed that there are certain factors you have to consider on a clear and convincing finding that the fact that the charges were sustained on a supply preponderance doesn't mean the clear and convincing was met and the agency has to prove that not only could it have taken the action but it would have if the person were not a whistleblower now what he relied on in the administrative judge's opinion was a symbol on the a factor of the strength of the evidence it was literally one sentence where she said the agency could have relied on the strength of the evidence there was no no support in the record if she was meaning to say well the rest of my opinion is the support where isis same the charges then she made a legal error because this court and the board have ruled that merely sustaining the charges is not enough to to reach the clear and convincing standard then you have to look to the strength of using an artist the current test you have to look to the strength of the evidence supporting charges right the strength of the evidence is one the motive to retaliate and whether or not any other non whistleblowers were treated in the same fashion now that third standard everybody admits there's nothing here no evidence in this case and as to the retaliatory motive she found that there was no retaliatory motive solely based on the fact that the proposing official the deputy of the park service mr murphy was not mentioned in the disclosures and therefore he wouldn't have a motive to retaliate and that was all she based it on it didn't look at the fact that he was the proposing official that was also a deciding official didn't look at the fact that he had responsibility for the park service and so excuse me the park police and so therefore these disclosures of the park police couldn't fulfill its mission would reflect on him and it completely ignored very powerful evidence in the record of have removed or anyone no i don't think he would because i think in that case given the testimony of the deciding official the penalty could not stand so there would be two alternate ways to reach that conclusion and that is because you say that if any one part of to kill or a charge to falls that all of charge to automatically fall is that your view yes and what i'm saying is that in the alternative they have to mean the clear and convincing evidence if part of the charge falls because it's protected activity that the pretty clear and convincing evidence comes into effect and discipline can't be based on the protected activity and the  existence of protected activity taints the whole rest of the decision and they have to meet this very high standard that they would have taken the action anyway so the in addition to what i've mentioned already about the motive to retaliate i believe that the motive to retaliate in this record is so strong and the strength of the evidence part of it had no record support behind it and the third factor isn't there at all the motive three tele is extremely powerful here because two of the staying charges were based explicitly vice chair didn't reach that question and we don't know what the vice chair is view it's on that issue right there is there's no board opinion and there's no board rationale and there is something to be said that certainly wouldn't even if you sustain both opinion did if we sustain the rationale of both opinion well the i mean the opinions are contradictory on the protected activity i mean i guess you could stay in the part of you know one that says there was there was this protected activity and then the other one that says they wouldn't have removed her anyway they would have so the what i had wanted to say about the mode to retaliate is that once you have any protected activity which is the basis for a charge which is the case with charges two and three of any protected activity is found based on the washington post eight minutes then you have it by definition a agency has retaliated for protected at that he has taken to put disciplinary action based on the other two charges that were brought were based on incidents that happened three to six months earlier and there was absolutely no discipline at all taken at that time so it appears that not only wouldn't removal have been based on the non protected activities but no discipline would have been based on the non protected activities and the all the sudden after the wash three days after the washington post and the communication with staff or she's removed based on these things that nothing was done about at all before and the final factor on retaliation is the way that they did it based on some statements today washington post about it budgeting and staffing they took her in removed her police powers center out of the building with armed guards this was way above and beyond what would have been merited by the kind of charges that were brought up that she made some statements to the newspaper that she says that she didn't follow instructions of her supervisors mainly on personnel matters her deputy testified that nobody loses their police police powers unless they have made some serious violation of the law or conduct that makes unfit to serve the public this was far from that everything here indicates that this action was taken in retaliation for her protected activity you're into your rebuttal time you want save my i'll she that they were protected disclosures but torch to is still going stance of purpose is what i'm saying here let's assume that's the case then you kick into the analysis of whether or not she would have been removed in any event and you're right there just like you rightly point out that there is at in fact not a board decision on that issue you have a single board member judgment free issue in a decision that she would have been terminated in any event your vice chair rose expressly passing on the issue and you have a suggestion by the government that must be rejected which is that the agent's decision on this should be the finding affectively have one board member ruling on the issue and that's it so you don't have a board decision split or otherwise two zero three zero or two one on the issue of whether she would have been terminated in any event and by operation of m s p regulation the only time the ages decision becomes the final decision of the board is when the board itself for lack of a quorum relaxed majority splits on the disposition of an appeal not an issue there's no regulatory authority for adopting piecemeal decisions of the ages so all you rose and to have concluded that there was no protected activity and it comes up here on appeal and we disagree we find as judge as mr mcfee did that a couple of these were protected if the a j in this instance had found that there was clear and convincing evidence of the issues the action would have been taken in any of that would we have the ability would we have to end it so that the board could make that finding in the first instance or could we affirm and a finding that we got even though the board nobody on the  boy had ever reached that issue i believe that there is no authority for you to adopt the decision of the administrative judge that once if the bill what you are viewing is the board's decision that she didn't in the end urines in your example what you're arguing is the board's finding that she didn't make any protected disclosures so there's no decision for you to review and there's no regulatory authority to indicate that the appropriate once you determine ok she was a whistleblower the board got that wrong and now let's look at what the a j in terms of what the a j did in terms of the in the alternative argument that the clear and convincing evidence that she would have been removed absent the disclosures absolutely i think the appropriate remedy in that case is you vacate the board's decision and you say you got it wrong she was a protected whistleblower now engage in the analysis and the facts and the record taken in account with a j said and look in that review that and determine whether or not she would have been removed in any event i don't believe there's any authority to substitute the judgment of the board when he didn't do the analysis that you would indicate that it needed to that  and even though they're inconsistent i mean agencies can reach different reasonably reach different results so if we were to say well why such chairman rosa's decision finding no protected activity was reasonable we could sustain that if that were the more decision and we can also sustain the chairman fees decision that she would have been removed any of it in fact a board would be doing if you if you were firm judge if you  stand and believe this is related to our argument that chairman mcphee committed a legal error when well when he surgically parsed her statements that instead of looking at the nature of the disclosure itself which was her interview with the washington post and president the board generally does is look at the nature of the disclosure itself the board doesn't parse out the individual sentences the board doesn't generally examine each individual component or each individual component of the greater whole what they look at as the greater whole and so i think that that speaks to the issue of can a charge stand and does it make sense for charge to stand if you individually parse them out if the agency wanted to do that they should have brought her up on individual specifications so here you do have a charge where you have one word member finding that at least half of the statements that provided the basis for the charge he found protected disclosures so we would take the position in addition to case on that you pointed out but that isn't common sense approaches the approach of the board takes generally they look at the whole disclosure itself provided that we're does that leave us in terms that resell to his or remain aren't required then to go back to the board that they have to reopen the record because nobody knows for certain what the deciding official would have done if he was someone looking it to protect to disclosure supposed to for respectfully disagree i believe that does i believe the record reflects that the citing official unequivocally stated it and provided uncontroverted testimony that absent the three charges of two three and five absent all three being sustained he would not have removed when he said let three he didn't want to say and i wouldn't have sustained i would only sustain a charge to if every single statement in there were found not protected i mean just say all the charges he was referring to two agrees term if you found that those were disclosures the charge to in its entirety drops out so it then becomes irrelevant if the deciding official would have said well charged if one sentence of charge to one disclosure rather one part of the charge to still individual charges and charge to if any one of those statements were just not protected i would have taken the same action no matter what in the on that record even though if we accept chairman mcphee analysis of what's protected and what's portion of those charges individually is the stay were all that were if it were only a particular portion of charge to i nonetheless would have sustained the charge to leave that and say even then you have the evidence that so why wouldn't we need if that's the case then why wouldn't we need to be man in order to ascertain what he and dean thought it's not like he said no no statement he didn't say the reverse he didn't treat at all the different aspects of charge too so why is a remailer and not necessary to ascertain whether that's the case or not i think if this court determines that even an agrees with judgment chairman mixi that two of the statements in charge two are protected the entire charge fall so that it doesn't there's no analysis or there's no question to ask the deciding official what if two of those statements they in because the charges are not nice is that the charge automatically falls if a part of the poles were guarded most of what the that would be our position absolutely so there's no question to ask the deciding official because there were no the charge itself is gone even though only two of the statements are protected and there's a there's because each of these statements wasn't broken into a separate specification decision where both board members and although we don't agree on everything we do agree on the conclusion and we affirm those parts of the initial decision except to the extent that they are modified and then they each set up their separate opinions so for example member rose washee only reaches the question of whether mr chambers many and he protected disclosures and finds that she didn't and therefore doesn't need to go further still has affirmed the parts of the initial decision that she didn't get to so we do have a final board decision on all of the issues in this case and this court certainly even if they find that chairman make the for example came to the right conclusion with respect to which just voters were protected and which were not could have firm the board's decision on clear and convincing evidence safe in the knowledge that member rose's opinion affirmed the initial decision so accepted that decision on clear and convincing evidence and  not there was clear and convincing evidence would we be able to hear on appeal if we were to decide some of the disclosures were protected would we be able to go back jump over the board and go back to be a j's opinion yes because so the boards that obviously we don't have to reach the issue which obviously they've done as to whether or not there's clear and convincing evidence they would have taken the action in any of that well they don't have the reach of the initial decision the administrative judge didn't need to reach it either she found none of the were protected but she went further and said well you know in any event i'm going to go ahead and address this issue and find that it was clear and convincing evidence and the board just didn't repeat that they said we're approaching that initial decision except  addressed some issues those are the binding opinions of the board on those issues when on those issues that they didn't address when they affirm the remainder of the initial decision they are farming the initial decision as to the clear and convincing evidence and i believe that issue would be man that board members will come to opposite conclusions are protected disclosures even if they were i mean that really how can we say that that's a board decision that we don't know what vice chairman rose would have said on that issue because it is the work decision that's before you member faced with the were decision based on chairman fees opinion he says part of the activity charged in count two is protected in part of it is not in charge to be sustain under those circumstances i don't give two answers that question first yes i would say the charge to still could be sustained and i also am to go explain that a little bit further but i also want to get to the deciding officials there's a case that says that i don't know this because it doesn't say about this or in their cases that would saying that course in general should not elevate form over substance and in a case like this with the agency sets out separate the three statements that they are  once everything together and said in charge to you made statements to the washington post that we file and unsavory are an appropriate and therefore we are removing you and then chairman would be had broken them down for purposes of analysis and found said the whole tar balls and determine whether or not in that case it with the facts were different than ours that the case it was and you know how do we know that right and you know i don't have to confess that i had did not review those cases before this  chart single charge all of the facts were intimately related not susceptible to being broken into so that any one piece falling out logically meant that the charge couldn't be sustained but in this case where but for at the agency including those little headings when you look at this chart it looks just like a chart that has separate specifications because each statement is sent out separately and one statement doesn't hinge on the other they just simply the receptor statements that the agency was charging his chambers guess but then judge by the asks and this is that line ten on page forty three question those were the three most important charges in your mind and if those three were not sustain what penalty would you have chosen the answer i do we give them another chance to reopen the record so that we can call this witness to the stand and he got to tell us what he would have done and i believe that there is enough on the record for the court to sustain the penalty as as reason ball not outside the beyond the bounds  assumed that we were looking at these to reach that charge too would not fall in order to stay that is correct so how can we second guess the word on that one problem and i guess obviously the other  hold their decision in that respect and to be set aside because it wasn't supported by substantial evidence and i don't believe the board found that if charged to was that's the stain the penalty would fall i thought you had i think that's an argument she stopped after her evaluation discloser disclosures and chairman make the first analyze whether charge two could be sustained based on the non protected disclosures and once he found that it could be he then went on and just simply said that the penalty was based on underlying chargers three five six and the sustain portion of charge chip but he didn't make any finding if if we we conclude that he couldn't rely on all on charge to yes i agree he did all the way back through to the board going remaining a back to the initial judge to take more testimony from the deciding official on that issue i think the board just decides it based on the sustained charges not sure if i have been child left here but with the time that i do i want to make sure that the court understand didn't really spend a great deal of time on this and our brief and i want to make sure that's very clear that this fight the fact that we spent the majority the time addressing chairman a treatment of the disclosures whether they will protect or not that we do believe that word member rose came to the correct conclusion in finding none of these chambers to splurge is protected the court remained in this case to the board with instructions  apply it particular test to the disclosures the board members did that they do so they applied that test and notwithstanding the contentions in petitioners brief they applied that standard correctly and board member rose found that the disclosures that miss chambers made of the allegations that she made were simply not specific enough to disclose a substitute a specific and substantial danger and that was the correct conclusion and the court agrees with that conclusion obviously they don't need to reach any of these other forty two yes in each of these charges standing alone would warrant the penalty of removing he says no i don't think i'm saying that going on to the first page i think what i'm saying is the three in particular together warrant to remove all and then he goes on to say that if these three had not been sustained he wouldn't have recommended renewable he would have recommended but that's a little different it is a little it is that minimal ambiguous i mean to say that those three of particular when he does say these three together and that no one alone would so that we that that's the evidence we have on that also it did did either of the board members address this question i say that in terms of different specifications that the charges here in charge five there were different specifications so the agency knew how to make different specifications when they wanted to and they didn't with charge to an address in the be protected activity and rose's opinion the finding of no protected activity whatsoever is completely contrary to the case law as to what constitutes that actively with safety disclosures this court and the board itself have found that these disclosures are not protected if they're speculative if they're remote if they're ill defined if they're not probable that those words cannot possibly did find that the already a bit to realize dangers were protected and i'm saying that given the case law and how you analyze what disclosures are protected and that the ones are not are the ones that are remote and speculative  say that he stopped too soon it finding only already realized disclosures protected but certainly rose aerate is a matter of law in finding that disclosures that had already of things that had already happened were not specific enough the panel now has the authority to order mediation cases and that's what we're going to do here we're going to withhold a decision in this case for thirty days and ask the parties to mediate using the court mediation program so i don't you have any questions about that