worked for usa there was one camera submission where the agency was asked to provide certain information about the and the informant said they know who the informant is but they didn't say whether it was no did you  now the entire act uses the words establishment and office to distinguish between the agency those words to distinguish between the two of them and to delineate the responsibilities of one versus the other for example section four of the act requires the i g to audit the establishment section three for him it's the establishment and the council inspectors general on integrity and efficiency and that maybe that's created by the statute within that council that exists to receive complaints about inspector general so it shows that there's actually an alternative venue for o i g employees to report concerns about do you mention that's under section eleven but really i think the clearest example is section seven itself because the agency is only argument as to why  and it wouldn't make any sense to have to require the g d as an establishment to provide records to itself or to audit itself i mean it just doesn't make any sense when applied that way and this is an act that created this office within the agency and then defines the responsibilities of the agency  and in addition to that section seven b is not an absolute promise of confidentiality courts came up with these other ways to prove circumstantial evidence of retaliation it's the knowledge timing test the retaliation by investigation the mosaic of suspicious of dents and here the board's own factual findings actually satisfied every one of those tests but the board refused to apply those legal standing instead it described all of the circumstantial evidence as speculative because in essence it required that someone who knew of the disclosures admitted that they interfered with the investigation or that someone who was involved in the disk in the investigation admits they know of the disclosures which in other words means that they required someone to admit to committing a prohibited personnel practice an illegal ac nexus is clear from the involvement of the people in the chain of command you had the graciousness supervisor christine byrne the inspector general and the ambassador they all communicated with maclennan throughout the investigation they all kept tabs on the investigation decision and that she didn't think any more feathers was necessary and all of this interest about trying to get out of the country was over what riginal allegation here informants complaint was that iglesias claimed reimbursement for a driver that she didn't the total amount according to the informant was two thousand four hundred and eighty eight dollars that's it it's simply not credible that mclennan flew from washington d c to south africa investigator off the case and went searching through all these unrelated records keeping the highest officials of the department and the state department appraised of her progress all because they thought an auditor received two thousand dollars two cents pay her dr the nexus is the involvement of these three people for example the ambassador iglesias made many attempts as the board found to disclose that the ambassador had caused the waste of one hundred and twenty million dollars in taxpayer money i high priority program announced by the secretary of state herself and the board found that she tried to include his errors in the autumn both with people inside and outside the organization about it it's not  made below about the meaning of the word establish this this attempt to reconcile the differences but frankly legally an adequate because it doesn't even disclose whether or not the informant knew of iglesias is doesn't  even the purpose that it was offered for because the board found that iglesias may disclosures about within the audit reporting system and also by talking to other people who are supervisors and people inside and outside the agency and at the state department and people at non government organizations like the gates foundation the board found that she  to terminate her from the foreign service grievance board so found and iglesias does not challenge that determination and so i my colleague to make light of the overall value of the n extends to employee i'm sorry just that is it your understanding that the district court never decided that question as to whether seven applied i believe the court did decide to be applied but the district court also did look at it through it through a somewhat different lens the court looked at the discovery ruling that is committed page fifteen and the district court says although the parties brief the statutory question at length before the board the board did not answer all right and then go on to describe what supports it and then says on page sixty the court must reach to boards determination concerning the appropriate extent of discovery didn't address it unless i had just missed it question the statutory question that's what i was focusing on that the more never decided the question and i'm not disagreeing with what you point to the record at the office of dr general it is part of the establishment that's clear established if you look at the three it states each inspector general shall go to and be the general super of the head of the establishment clearly putting the office of inspector general within the establishment and if you look at retirements and the senior executive service that would seem to indicate that for all other purposes including the other employment provisions of title five the office of inspector general as part of my colleague make the distinction between employee of and the agency confirmed that in responding to her argument it would be sandbagging the agency to claim in district court proceedings that the n c did not action not applying the wrong evidentiary standard that's just the failure to prove overall glaze as part which is not something that should just counsel two questions one the evidence that was submitted to the board in terms of who the informant was yes r i couldn't tell that it said what you are saying you understand the board to have  in other words the statement submitted to the board could have been written in a way that made it clear whether the informant was an employee of usa id or not the the agency  ledge and become an issue see the context in which she assumed it because she was raising that question earlier two and i don't know whether they moved court i'd like to start by addressing by this clip that we were sandbagging the government here you know this this claim of seven b didn't come up at our insistence the claim of seven b came up in the middle of a that it is it is not our obligation to prove whether or not the the informant is covered if the agency wants to make a discovery objection and seek an order prohibiting us from receiving discovery it is on the government's it is the government's burden to show that the employee is covered in the st instance so i don't think that a disparate all that characterize what we did a sandbag nor a nor is that decision that we have and the motion that we have in the record the original record i don't i don't believe your original oral ruling is in the record here besides a memorandum that might reflect it but i think it's described in the pleadings but i also like to note that the board did it says in addition to the i g a so i think there is making very clear that it's already found that the whistle that the informant was protected by the i g a and then in its supplemental order in the very last sentence of the order it starts on interest in disclosure outweigh any interest in confidentiality so how do we fit that in given our standard review where we're not deferring in any way to the district cour if if we were to hold the act did not apply that one situation if we hold the act doesn't apply then you're asking us to make a does actually apply and that that that the exception does not apply and you have a conflict between the statute i mean the it's clear from the record that we have already that the informant has next to no interest in confidentiality because the government argues the only interest of confidentiality point of confidentiality is to protect them from retaliation but if as they claim it is no idea employee it receives no then if it receives no protection from retaliation by confidentiality so at the end of the day whether it applies or not this employee or this informant if it is an employee has no interest in confidentiality and certainly no interest that can outweigh mrs iglesias is right i mean she has a property interest in her job as a federal employees it's guaranteed by the the due process clause of the constitution and she has a right as a whistleblower to prove i'm just trying to figure out there is a legal question and i understand that but it's part of your d request that i wasn't that clear in other w a deciding body could decide that the property interest in a job outweighs the confidentiality confidentiality interest that two statutes but i was just wondering about laying the matter without further fact finding here you don't have a problem with that employee doesn't have any interest in confidentiality they have protections they have whistleblower protection they can't be retaliated against under the whistleblower protection act but the wishful protection act doesn't provide confidentiality