mr move there sir thank you may please the court my name's time uther i'm representing corey vorhees and this petition excuse me prior to extermination mr borges was a special agent with the immigration customs this position for twelve years and prior to this time he was a border patrol agent mr vorhees loved his job and had committed himself to the mission of the agency namely to deport dangerous criminal aliens from the united states so there's no mistake mr gore he says job involves the apprehension not of individuals who have come across this is fairly illegally into the united states but those individuals that once they were in the united states engaged in serious heinous crimes involving violence wh bring to light what he saw as that threat to public health and safety that being the denver district attorney's office is continuing clean of of criminal alien charges things involving again violent crime drug crimes down to misdemeanor crimes that they could not be deported for he saw this as a practice on the part of the district attorney's office it came up in a political context but the purpose was to bring this issue to light so the congressman vote free could criminal information that is sensitive and disclosing it publicly well sir it's mr already says position that he did not misuse his office part of our appeal to all together was is that things protected disclosure if you're not blowing the whistle on anything that you have any whistle to blow on the sort of the the m a fifty has has held that it could be a protected disclosure in the context of  it affects the good name reputation of the federal government so that they nonfederal entity that have to fix the good name and reputation of the federal government then those two would be intertwined to the point of creating a protected disclosure and in this case our position is that that vary with the situation mr vorhees learned about this through a press release that mr ritter's campaign made where he indicated that he is tough on immigration law and that the releasing deportation of criminal aliens was not his committing who was responsible for the threats that he was disclosed and it wasn't the federal officials that with someone outside of the federal government i stepped right to the threat which i don't know how that can be part of the civil with the blower statute even though the tahsin it seems to me the statute is about one west reporting misuse or abuse or fraud by the federal government not by someone else to protect the federal over immigration issues the deportation of criminal aliens this is a practice that was by the d a s practice was known by the federal government for quite some time and that can again the connection between the d a s activities and the federal government i agree that that takes you outside of the seventy two eleven protection i don't believe that there is a preclusion on the part of seventy two eleven that says that if you are doing this for clips that the heart of the inten the individual disclosing the information is not identified by congress as being a relevant factor in the in the in the statute it's the release of information whatever those motives may be ok that's i'm just trying to get in your view if there  confines seventy two eleven what about if it something that is not authorized to do i mean east of to have access to criminal database or for purposes let's say hypothetically an officer is has access to computer data criminal databases for purposes of pursuing his caseload and his job to be there for access is that for purposes of side of that even if it's to petition a member of congress or to give information that congress you think that's protected understand the two of them my reading of the legislative history and the and the and their record is yes it is there is actually and i believe we cite the legislative history regarding seventy two eleven and the back and forth between congress and the executive branch as to whether or not even classified information is protected under seventy two eleven the release of classified information and congress has position is most certainly can't be correct can it i mean so if i release  information on informants within the mexican drug cartel through the mexican drug cartel and also to congress of course jeopardizing the lives of those of those informants but i'm insulated because i also told congress what i'm doing well sir in that situation i would say that that's that's different from the case we have here that there's no reasonable expectation that the mexican drug cartel would be providing that information to congress in this situation  moore you're willing to admit there's got to be some limit on seventy to all of you don't insulate otherwise criminal or improper behavior simply by including a congressman in the loop well i i would agree with you there i think that the  requirement is that the disclosure has to be reasonably clear that is provided to the congressman but not a can't be limited in terms of scope let's say and this is truly a hypothetical them never has and never will happen but if i'm running campaign against draper and i want to find out about a tax return so i go to somebody i know at the i r s and say pull up the tax returns because i want to go after this guy because i'm sure there's some problem and you know the i r s agent gives me  campaign so there's a need to know this related to my work that's my argument in your view that comes under something to the level and that situation where the congressman is seeking that information for purposes of keeping my job so it's when jobs well i i would say that the problem that the employee faces in this situation is when congress is seeking information oftentimes the employee does not understand or know what the intent of congress is and in using that information and once congress gets that information it's entirely up to them whether they use it so you tell me the answer is you're protected that comes under stuff the eleven might have it in this situation i would believe yes it would be i don't see any restriction to the seventy two eleven which would preclude that now there may be issues on the congressional side of the ethics house as to what was done and whether there was a misuse of with already but in that situation at least my reading of the statute the right of the individual employee to provide information to cops congress is essentially a protected period you know they're breaking the law and doing so well there are legal restrictions on how you can use all this information in the criminal directory it's short i think it's it's instructive sort of embracing the law but as long as i give it to a member of congress it's ok i and then that in answering your question i would say yes and the reason why is the way congress wrote seventy two eleven compared to the whistleblower protection act which is another similar disclosure provision that appears in federal law for federal employees in the whistleblower protection act there is an exclusion you can break the law when disclosing information under the whistleblower protection act there's no such exclusion specified under five u s c seventy two and the record suggests is that those consultants were using that information in a campaign yes and the disclosures took over a period of time and he was handing over information that he was taking the federal databases as if he knew i was breaking the law and he's given them over not to the congressman but to operate it i i have a hard time  how seventy two eleven fits under those that those circumstances sir and i guess i would preface i don't necessarily agree with the factual position the disclosures were given to the campaign manager mr  and give back to you then the newspapers are filled with the with with these with this data how can that be a disclosure to a member of congress because for purposes of seventy two eleven because the disclosure was to his campaign manager who he thought was giving this directly to poke readers that he was in fact once they got to the congressman the congressman had the one hundred percent of discretion to do with it what he wished to say the rebuttal time mr yes or i would think you know please the court i'll start with the contention that the misconduct that was proven with regard to charges one two and three is immune from disciplinary action because this was a petition to congress within the meaning of that regard can you tell us how broad or how narrow the government thinks seven to eleven is yes your honor seventy two eleven is very very old this is a very very old statute  the impact of a i don't know but there is precedent from the court of claims and also from the d c circuit which explains exactly the scope of seventy two eleven and the seventy two eleven scope is nothing different than the scope of the petitioning congress clause of the first amendment and that set out in footnote i think it's footnote seventeen of the d c circuits opinion amendment and the reason i said the statute was very old is because there is extensive precedent construing that statute seventy two eleven the predecessor which has exactly the same language is five u code seventy one zero zero two and in the civil service reform act that same section was just adopted as part of the civil service reform act and the number changed this statute has been on the books almost almost forever the court of claims in the case cook versus the united states they are construing seventy two eleven said it had limitations upon it and it doesn't allow you to sensually break the law government employees can be disciplined where they where they have broken agency policies agency rules statutes it it's not immune because somehow somewhere someone gets the information to a member of congress and i think in the cook case the information defamatory statements that were made and those those same defamatory statements were also provided to a member of congress that didn't make any difference you still could be disciplined because you have engaged in employee misconduct that's the same case here actually this is a much stronger case but boreas because it's unauthorized to the subject matter what he was given was an unauthorized disclosure an authorized qarase unauthorized disclosures and misuse of his position he got information he had only because he was a criminal investigator he then proceeded to give to the trailhead group and to mr going to a political campaign as opposed to an individual member of congress is that your position as well that's correct there's two prongs of seventy two eleven you must be a tissue an ink congress in the first place and then right but here he was not even giving anything to a congressperson or a member of the staff of the congress person this was the campaign totally separate from the congressional office he wasn't giving  he wasn't given it to the congressional so the congressman himself also your view was just this the person he was dealing with i mean you know on capitol hill a lot of people wear different hats depending on what time of the year it is this person will clearly at some point have been on the congressional staff and let's just let's assume he wasn't working on the campaign let's assume his title was and remained a staff director or whatever for congressman but he was still asking for the is not this case then you have to consider the there is a balancing test if you if you conclude that is a communication with the congress person then there is a balancing test set out in the supreme court's decisions under the first amendment which are the same test that is applied under seventy two eleven as stated by the d c circuit and also the court of claims in the case cook first is the united states and what happens under the balancing test is you balance the government's interest in disciplining its employees for serious misconduct against the employees interests and you make a decision as to whether or not there is a right to be immune from disciplinary action under the first amendment and also under seventy two eleven that's the same for government employees and the requirements for what you how you treat law enforcement information stored in a government database and he was not supposed to go on there and conduct parys for a private individual he was not supposed to then disclose that nonpublic information to the private individual mr john marshall and other people working  in the campaign and he also misused his his his office because he had all this information about particular cases because of the nature of his job  really a story of involvement in a political campaign by federal officers why is this with an exclusive jurisdiction of the office of special counsel rather than  the exclusivity of the office of special counsel comes from the regulation which states that the office of special counsel has exclusive authority to investigate allegations of yes yes allegations of political activity government employee misconduct if you engage in government employee misconduct then the agency has the duty and the responsibility to discipline its employees of these government data bases then unauthorized disclosures of that information and misused his position because he had all this information because he was a criminal investigator this was all employee who facilitated the disclosure of confidential information from the n c i c s system that's exactly what went on here and that's what the agency charged that's what the board in the judge found and yet it's not the office of special killer so let's bring charges against ray it's the department would mr maurice actually testified to was that this really wasn't about political activity at that he was not a political person all they cared about was to make sure people were locked up that was his whose testimony functionally and what was charged here is the charges here don't depend upon his motivation the charges depend upon his actions he was charged with making an authorized squire is for a private individual and the government databases and then releasing that information to jar marshall and other individuals for example the trailhead organization and all these people had long forstmann interest in any of this information and he knew it wasn't being used for and one for smith purposes and he also understood that he only had the right to go on these government databases if indeed it was for a long foresman purpose so in your view the government has the option let's assume that he wasn't using the data but he was just spending much of the time working at a campaign headquarters dealing non here he's also i'm assuming that the nature of the information given is the law enforcement information it's information that is confidential that he has that the they're supposed to be kept confidential but that added to your your hypothetical he's engaging the hatch act violations the agency has its own authority to enforce its own rules and regulations on the use of government to quit government databases email systems and the agency when when those rules are broken the agency has the duty and the responsibility to enforce those rules and that's that's what century what was the agency was in forcing its own  have just little time left if the court is interested in the issue as to whether or not a sharing should be conducted with regard to the protected disclosure it was a determination by both the the board and the ministry of judge here that mr borys did not make out a non privileged allegation of a protected disclosure coming in within whistleblower protection law and then he goes on and says but i want to address it anyway since you brought up the issue again in the in this reply brief so apparently he was not given the opportunity to address that issue and to present hearing on that first prong you have to have made a non trivial if allegation of a protected disclosure coming within the statute the the administrative judge issued a pretrial water directing that mr war rhys lay out what facts he intended to prove in the witnesses that were going to testify what they're recalling to testify to in that pretrial disclosure he said he was going to show that mr ryder's policy as a denver d a led to these plea bargains which he thought were a hazard to public safety people who were fleeing to misdemeanors  they should have been playing a pleading to felonies and his point of view that is the nature of the evidence that he intended to present and he said that in his pretrial statement then there was a pretrial hearing conference where those arguments were made and at the pretrial hearing the judge made the ruling saying there's presenting more of this evidence it still is not going to make out a case within last point i would just simply like to point out that the agency the government has a lot wrong there's no obligation to show up and non frivolous allegation in a case where the m s p b r a d has jurisdiction as it does in this case mr gore he's had jurisdiction on account of the fact that he was terminated from federal employment he was a non provisional employee he did not need to show a non frivolous allegation before having the there's what is called an individual right of action appeal where it's not it's not otherwise appealable so if the on issues that are not appealable otherwise such is short suspensions relocations reassigned to things that the embassy would not normally i've jurisdiction over in that case an employee does need to show a non frivolous allegation in order to have the chemistry be take jurisdiction over the case into determine whether or not and there should be a hearing but that's a very separate type  right to a hearing on an affirmative defense in a case where the m s b has jurisdiction over it initial jurisdiction over and do you want me to cite to the cases if they're in there in the early the agency wants it both ways they want to say that mr vorhees was precluded from the protections of five years the seventy two eleven because he was engaging in partisan political activity but then they also want to say we're not charging him with partisan political activity we're charging him with simple codes about the whole conduct i believe and again i saw him with that i mean that's what the agency does have a choice i mean then they have to they have to meet these still have to meet their burden but they do get to decide whether or not they would they wanted to fire him just for political conduct and whether they had some other bit to use the rationale that the agency pop applies each and every  necessarily a code of conduct violation of itself because it's a violation of some of the hatch act so to use this agency's rationale the o s c really has exclusive jurisdiction over nothing that the agency can decide to independently violations are where the overseas jurisdiction starts up the agency never provided the o s c at least from the record that we have to our knowledge ever provided the o s c an opportunity to investigate these allegations they went forward on their own motion on their own