and feel free to be me please the court good morning your honors my name is mark hasse debtor i represent the petitioner in this case george dugan i'd like to start with just a few and i'd like to reserve three minutes f and i'd like to start with just a few minutes on the context of mr duggan's whistleblowing mr duggan works for the dca the diff defense contract audit agency which is essentially an accounting firm within the department of defen responsible for conducting contract audits for the d o d and occasionally other federal agencies in two thousand and thirteen the year of the whistle blowing at issue in this case dca total dollars audited were hundred sixty three billion and the agency issued over six thousand reports however for five years between august two thousand  and thirteen which included most of the time at issue in this case the agency's audits were required to contain a conspicuous qualification stating that it did not have a peer review quality of its quality control system required by gag us generally accepted government accounting standards the d o d s specter general revoked its peer review in two thousand and nine of d c s quality control system after multiple whistleblowers including mr duggan complained to the g a o and the i g that dca was not following professional standards in account g i have one sort of it's not exactly a procedural question but it's a what do we have to decide question as i understand the case is it now gets to us there were seven disclosures total or which it is now undisputed that four of them were protected disclosures and there's a dispute as to the remaining three the basic decision that was made was and i know you don't agree with it but the basic decision was the protective disclosures had no bearing on the firing because it was for nastiness and insubordination and it didn't make any difference do you have to decide whether those remaining three disclosures were protected because there are at least four of that are are protected and so what difference would it make to decide for sure whether the other three were or were not in that category yes we do have to address that issue because the agency would have no grounds for discipline if for example the february e mails were properly classified as protected in fact they have no i mean the first part factors the strength of the agency's evidence they actually have no evidence of any misconduct other than whistleblower all of the alleged misconduct here occurred was in a strictly intertwined with mr duggan's was so let me let me just give you a hypothetical to try to make sure i understand your argument let's suppose that in a protected otherwise protect disclosure it's a you know there's you haven't been doing things correctly and it's terrible that you haven't been doing things correctly but it also went on to say you're a disgusting human being i hate your guts and went on and on and on in the same email or of the same letter or the same meeting you say your position that no matter how nasty a person is if the overall communication includes a protected disclosure that it's sort of king's x you can't do anything about plea the nastiness i mean suppose somebody you know holds off and slap somebody during that disclosure i mean what what rule should be applied and i think it should be reasonably related to the disclosure if it's going way off on an irrelevant tangent and arguably that wouldn't be protected but everything you have an e mail or a given meeting can be parsed in that way there's the disclosure and then there may be some extraneous something else going on if there's something that couldn't possibly be classified as a disclosure like a physical violence something like that maybe even extremely profane language something like that but if it if it can be reasonably be related to emphatic whistle blowing which is clearly the case here th it should all be protected and that's all we have here for alleged misconduct in fact the charges against mr duggan are so strained first they say he was too passive in the first morning meeting with hand i don't remember it being that i don't remember that being the case maybe someone alleged it but we've always maintained we we shook her hand and there was absolutely no misconduct in that morning meeting there was at least some evidence that it one of the meetings he just start of the meeting by just challenging i think it was miss q c and saying why are you even here or something along those lines why is that protesters in anything this isn't a team on site this was and misuses reason for being there that day was to go meet with management about not about her and her boss ron hops ideas to circumvent access to records rules and regulations that was it exactly why she was there in the morning and then in the afternoon team meeting she announced that that was what she had in fact done and they started the team meeting with the you know a huge misrepresentation that there had been access to records problems of d c c which eventually everybody image of us falls and that's when mr duggan corrected them and championed following the law in the afternoon tea meeting but back to the morning meeting whistleblower wendy to nocca mr duggan's colleague who in december had had a dust up with ms choosey and her boss mr hoppe about their plans to circumvent access to records rules to go back to judge graber zz original point i'm still struggling with that if we have someone who doesn't respect their new superior in a position doesn't think that person should be there or is competent doesn't think that things are being done the way an employee thinks it should be done i can imagine that employee being frustrated set and simultaneously expressing or in the same communications expressing things that might be protected as whistle blowing but also being incredibly rude even to the point of insubordination what if anything can an employer do in this context if the employee is uttering protected whistle blowing communications but also acting really insubordinate how do what should the employer do and how should a court with a murchison's protection board evaluate that in the national court deal with it on a review question is is exactly where i am i don't know exactly how to deal with those situations so then i went back to well how much deference should i give those who are making these decisions on a regular basis and if i'm to give them quite a bit of deference because it seems to me then it's a matter of determining whether there was a clear and convincing evidence and it's a matter of whether or not i hike listen very carefully what you said to judge graber first question because it was definitely one that's worried me and that is what do i do with these communications i guess why is the nuff to have the four and not the three and then you said because the three are the only evidence they have all of the three are the only evidence they have then this decision maker has determined that they're not appropriate for this they don't make a difference so you can go ahead they're not if you will communicative of what we're talking about here so you can go ahead and look at their evidence and then they use those in the clear and convincing evidence standard to whether they meet the car factors or not so again here's the guy who's been doing it every time saying it's ok how much staff are in store i give them i was arguing that the only evidence that the agency had were you said judge graver but they can look at three because they're not protected right and you also said that if the three were protected they'd have no evidence right and they  myself ok then they used the three to go forward and determine if they were if there was a prop something that he could be fired for would have taken that decision in any event but it seems to me they can use that evidence in the three to support they'd of taken the decision in the event right i don't think your position is that all seven are protected and so it has to be some unrelated behavior for them to be able to rely on what happened during those disclosures i have said is that to be disregards evidence in favor of the whistleblower then the the decision must be vacated ok i see that you might want to say that for rebuttal i would like to thank you represent the united states and the agency department defense in this matter began where the panel was with with opposing counsel a protected disclosure on the whistleblower act cannot provide protection for insubordinate or inappropriate activity we've cited cases that proposition our brief and there are other cases in the federal circuit that deal with various fact patterns where individuals raise a protected disclosure identify some problem in their agency or work but that's also tangled together with disparaging or insulting remarks or something else that becomes the basis for disciplinary action and i don't think it's also proper to sort of take it as a kind of a verified or difficult thing necessarily because the statute really provides the basis for pulling apart the protected disclosure and whether or not there might be something else that that supports a disciplinary action because at the statute asked in the absence of the protective disclosure with the agency have taken the same tone how would you deal with a problem that when one communicates a protected in a way that is rude even to the point of insubordination and the employer then says well spaced upon the way in which you've been speaking to me that i'm giving you this adverse employment action how do you deal with them to that framework it it gets a little speculative or almost a like a fiction that has to be read because if you if you take out the protected disclosure to look at whether or not there are separate bases for action and the words themselves are expressed in a way that provide the basis for the action it does become difficult to separate but the content of the disclosure is really the content of the message what is being disclosed is the problem i'm having is that it seems that for some of these communications there was frustration behind the communication and that may have caused that communication to be expressed in a way that is rude to the point of rising to the level of insubordination but some of that frustration may very well have been motivated because i've made these complaints before and nobody's taking them seriously and how do we then unpack that and separate out the insubordination part that could justify an action for us is the protected complaint the protected disclosure how we how we do that i think again that you return to one one removes the information that's being disclosed at specific so if we take the morning meeting as an example and the access to records policy which is identified and has been accepted by all parties if that's the protected disclosure there when one looks at the specifications and the testimony of the witnesses concerning that morning meeting there are communications expressions body language characterizations of aggressive tone that surround that message and i think that are easily an eminently hold from the content of the message and i think an individual employees frustration at what may be viewed as a problem in the agency it doesn't justify crossing the line into inappropriate or insubordinate behavior and that becomes a different issue that falls within the discretion of the agency and the supervisors to deal with in accordance with their employment policy i think we are i'm sorry i didn't i thought you were finished finish your answer and i say that that's what we see here is to separate specifications and backed up in the record in the testimony of the witnesses i'm just going to sort of follow want to something that judge smith had asked earlier which is when there is a high standard as there is here in the statute clear and convincing evidence that the same action would have been taken anyway how do we review a conclusion on the part of the department of defense that  there was clear and convincing evidence that it met that standard what is our review of that it's it seems hard because it's and i'm usually high standard to meet and so is our review more searching how do we deal with i think that this court's role and if it is confusing because there's these layers of review i mean if you're sitting reviewing for substantial evidence the decision of the merits assumes protection board which was reviewing the administrative judge's decision a clear and convincing evidence supported the the decision of the agency and so when one looks at the initial though it's substantial evidence it's more than a scintilla it's something like that but it there are cases you know throughout circuits i don't know for sure i know it's even in the federal circuit one applying to substantial evidence of review in a situation like this of course there is some pass through to what is the nature of proof that you're looking at right and here it is a high clear and convincing evidence standard so that is going to inform somewhat the review under the substantial evidence and i think the way it operates in these cases is that and the m s p decision here does a good job i think of laying out the sort of methodical way often in these cases that they apply these standards is first to look at the prima facia case of the whistleblower whether or not they've met those initial pieces of having a protected disclosure and it arguably being a contributing factor sometimes using the knowledge timing test and then when it turns to the clear and convincing portion of it the car factors i think are what come into play there to aid the court in reviewing and are used by the administrative judge or used again by the merit system protection board you see in the in the opinions to interrogate the record and the evidence that's available to see if that burden is met by the agency and i think that so that stuff so to narrow in what judge grave ask you so if i'm it if i'm looking at this second question about the pretty clear and convincing evidence and my review is substantial  only have to have substantial evidence that the car factors were effectively determined i don't have to go back and say i would have done it the same way because clear and convincing almost says i would have done it right and i think the first way you form good judges is the way that that i would advocate is the approach that the substantial evidence review is whether or not and here that the merit systems protection board have sufficient evidence in front of it to support the conclusion so it's not no then more so then in determining about these three of the seven since the m s p b was doing it what is it tonight i have to find there substantial evidence that they did it right is that it yes your honor so so any evidence that they had that they had was right makes it right because substantial evidence is ha i mean when i'm doing an immigration decision correct it's a it's clearly not the highest standard that's that's available and in regards to the three disclosures i think when this court brings  its substantial evidence review to what the merits of his protection board did what you'll see is that the evidence before the board was what's the nature of the disclosure what was in it was the context of it and it turned a case law to say well this looks like a difference of opinion about something this doesn't look like a law or regulation or something that's being violated what is your response to my question concerning whether we have to decide about those three additional disclosures what difference would it make if they were protected my response is the opposite of it would be doesn't matter so from your perspective we could assume that they were protected and move on because the real question is whether there's clear and convincing evidence and so on and so forth right and now if that's your answer at where i thought he was going to be and he wasn't so then if they're protected these three are protected then it's my understanding they can use anything in those three to meet their burden on clear and convincing evidence he would have taken the personal disk the personnel decision in any event but if they three are not protected then they can use that evidence in meeting this clear and convincing standard  no i would return to the original point that the protected disclosure can't be used to shield anything so the fact that i want protective and he was rude thank him deal with rude well but so in the in the case of the email right that that  posing counsel said if that's included now they have nothing it's not true because the first two specifications have more than just a protected disclosures and even the third which is clearly not a protected disclosure because it has it's about candor versus respect in the workplace it's not a violation of a law or rule of any kind but even if one would assume it were a protected disclosure when one looks at the e mail itself beyond the observation about the charge that candor and respect are being modeled and if one excepted that as a violation of rule or law the e mail is filled with invective and salting tone that comes through in that people commented on in their testimony and that's in the record so that element comes out that's not a protected disclosure that's extra to the protected disclosure and that can form the basis for a disciplinary action so whether it's for disclosure and even insubordinate fashion the way in which it's communicated can by itself be sufficient to support an adverse employment action i can point to some cases that  deal with scenarios like that there's a case and i'll present some on both sides to that you can see where a court also found that the tone you know they couldn't get it out from the so an example of that is greenspan and the way the court analyzed the protected disclosure they want to find a protected disclosure said well here the agency hasn't proven it was derogatory in any way and the agency also said it was disruptive but they only raise that on appeal so there had been sort of contemporaneous evidence that there was something in the way it was made that was problematic now after greenspan there's a case called coolio versus department of agriculture which is for seventy nine f thirty eight twenty one and there's a very brief mention but in that case specifically because greenspan had been decided the employee said well that means that you cannot that the tone of a protected disclosure cannot be used to back up any kind of disciplinary action and a federal circuit explicitly said that greenspan does not mean quote that the character nature of a disclosure can never supply support for any disciplinary action that that's not what they mean and that that can't be with him because there has to be separation e mails and communications that present made to a supervisor present both protected disclosures you can also have issues of tone and insult and things that were taken as a honors as i was sitting there listening and occurred to me that i need to stress mr duggan is an auditor this is a profession where we don't need or even want friendliness particularly there are qualities that are the pillars of auditing such as independence skepticism candor and honesty which have all been in short supply dca except for people like mr duggan i also ice i started profanity there's pretty extreme profanity threats of violence things infinitely more extreme than i think them the most they have a mr duggan is the word arrogant which he applied not even to a person directly but to a response in an e mail chain if we if we look we have i mean we can think of mr duggan's responses as sir they were frustrated and there are so many layers of provocation going back that decades of waste fraud and abuse at dca up to the particular email chain where each one it wasn't mr duggan emailing out of nowhere for no reason it was always a response to an attack on him so these were these were provoked immediate provocations and also critically car factor two which we have discussed very briefly motive to retaliate i mean people's careers maybe even liberty are on the line here retaliate specifically the individual managers that issue going up to hop all the way up to the top of the agency and ample evidence of institutional duggan being unprofessional bitter shortsighted there was massive institutional and personal animus against mr duggan on car two and on car three they had no evidence either car one there was no no agency evidence time and i think we understand your position the case just argued is submitted we are very appreciative helpful arguments from both counsel and we have